Monthly Archives: March 2020

by Rabbi Aryeh Klapper

The ongoing Covid-19 crisis presents our community with innumerable practical challenges. As with all political leadership, halakhic crisis management depends on effective communication as well as effective action. Led by the superbly Nachshonian RCBC, local and national Modern Orthodox leadership has done a superb job of communicating the absolute priority of social distancing. There have also been many substantive halakhic opinions issued on narrower issues. But the effectiveness of those opinions has sometimes been limited by challenges of communication.

Let me start with an example that is about the context of halakhah, rather than about halakhah itself.  There have been many statements about the safety of mikvaot, and therefore the permissibility of immersion, for women who are not at high risk. These properly include caveats that our information about the virus is constantly being updated, which justifies the exclusion of high-risk women.

This is very important. But there are other issues that also must be dealt with. An excellent Israeli directive began with the following:

A woman who feels terrified by the necessity to go to mikveh – is not obligated to immerse.

Her life and peace of mind come before all.

From a halakhic perspective, she of course remains in a condition of prohibition until she next immerses.

Together with this, I will try to explain, as one who is in charge of the mikvaot of X, why in my humble opinion immersion in the mikvah is secure with a high degree of likelihood.

This creates an entirely different tone. It expresses a sensitivity to the possibility of spousal coercion, and validates a woman’s right to make their own judgments about safety. It makes clear that trust must be earned rather than assumed.  This makes it much more likely that trust will be earned.  And that trust will be greatly needed.

At the same time, even this statement has no long-term plan for a community in which many women feel that the mikvaot are genuinely unsafe, let alone for the couples in which the women are being specifically told that they should not go, with no prospect of short-term change. There is also a possibility that experiencing the mikvah under hazmat conditions will be immensely stressful for a significant number of women, with long-term effects.

We also need a plan that can survive our being wrong a few times, as we inevitably will be.  Some mikvah somewhere will likely become at least a suspected vector of infection at some point. What resources will we have to demonstrate that it is an anomaly, and that just about every mikvah is in fact punctiliously carrying out recommended best practices? I personally am reeling from the number of infections in Israel attributed to Purim celebrations.

There may be no such plan. But we also cannot casually expect mass religious heroism. In the absence of confidence that we have a humanly realistic plan, people will embrace other plans that seem humanly realistic, even if we strongly doubt their halakhic bona fides.

A major challenge here is that halakhah has a strong preference for dealing with exceptions to standard law in a private, case-by-case fashion. There are good reasons for that – making public exceptions weakens the law and leniencies are often abused. Keeping leniencies individual enables poskim to be more flexible in each case. But I suspect there is a tipping point at which everyone knows that there will have to be so many exceptions that a public rule is necessary.

It would be helpful if we could effectively teach ROSH’s idea that some halakhic positions are totally out of bounds – except in emergencies.  ROSH held that a dried out lulav was Biblically invalid under ordinary circumstances, but that when literally no other lulav was obtainable, one could make a blessing on a dried out lulav. One would be perfectly justified in denouncing someone who counseled the use of a desiccated lulav in an ordinary year. But what if there’s a legitimate reason to fear that no lulavim will be available this year? The Raavad disagreed strongly with ROSH, and the Beit Yosef compromised – yes wave the lulav, but no berakhah.  We need at least to make that compromise comprehensible to people (and for ourselves as well, clarify how it plays out with regard to DON’Ts).

The dispute among ROSH, RAAVAD, and Beit Yosef is also key to many of the conversations about virtual ritual. Almost everyone agrees that virtual davening communities do not have the depth of connection and spirituality of in-person communities. Almost everyone agrees that if we could allow mourners to say kaddish now, without fear that next year’s mourners would be much likely to show up in person, we would. The question is whether it’s possible to allow it now without the laity drawing the lesson that in principle it’s good enough.

Crisis leniencies often face another tension. State the actual standard for leniency, and many people who desperately need that leniency, are perhaps even required to use it, will refuse to. State a lower standard, and of course many people will use it who should not be permitted to.

Last week’s dvar Torah discussed this question with regard to relaxing the prohibition against kitniyot for the poor in a time of scarcity. Maharim MiBrisk held that it was necessary to relax the prohibition for all, lest the poor feel stigmatized and fail to have the halakhically required joy of yom tov. Divrei Malkiel disagreed.  However, Divrei Malkiel conceded that in an economic crisis, many of the genteel poor, who were keeping up the appearances of their past condition, would refuse to take advantage of leniencies if that required acknowledging their poverty. He therefore conceded that in such a crisis Maharim MiBrisk’s position would be justified.

This dynamic underlies the conversation about ZOOM seders and communication devices over a three-day yom tov.  We all understand that three days without human contact on yom tov will pose a severe health challenge to some of our most vulnerable community members. If we publicly set the standard for leniency as medically verified risk of suicide, not many people will use it unjustifiably. However, it is equally certain that many people who are at risk will refuse to use it. They may be in denial about the severity of their condition (and for that reason may not even have a therapist). Or they may be unwilling to admit their condition to others. A specific aspect of permitting electronic communication is that it requires coordination with a second party. I can’t ask you to ZOOM your seder unless we both classify it as pikuach nefesh.

On the other hand, we also all understand that separating families at the seder will cause enormous and profound unhappiness. If we set the standard for leniency at risk of great sadness, many people will use it who cannot plausibly be classified as in danger. Some rabbis may think that the lower standard is proper. But those who don’t cannot escape choosing between Scylla and Charybdis.

This is a halakhic tension.  But the fundamental issue is whether we can communicate one of these positions effectively enough that mostly the right people use the leniency without guilt, while the wrong ones don’t use it at all.

It might help to think about setting up two committees. The first would discuss ways of credibly certifying the Covid-19 precautions of specific mikvaot. The second would engage in halakhic disaster planning. What if mikvaot become actually unsafe? What if we have a dramatic rise in marital unhappiness? What if the first days of yom tov show a dramatic spike in severe depression? Each of these committees must include representative men and women, as well as both halakhists and professionals or volunteers who can credibly convey the concerns and reaction of the community to proposed rulings. If we eschew a formal structure, we need to find ways to ensure that we have the conversations informally.

My belief is that having these conversations will yield both better policy and better communication.

Shabbat shalom

by Rabbi Aryeh Klapper

The Talmud (Moed Qattan 27a-b) records a series of rabbinic decrees made to protect the dignity of the poor in the contexts of burial and bereavement. For example, “Originally, when they brought (food) to houses of mourning, the rich would use baskets of silver or gold, while the poor used baskets of peeled willow twigs.” Rabban Gamliel led by example and ordered that his own burial shrouds be plain linen. The concluding Mishnah of Masekhet Taanit teaches similarly that the daughters of Jerusalem all wore borrowed white dresses to the public celebrations of 15 Av “so as not to embarrass she who had none.”

However, this does not mean that halakhah always prioritizes the dignity of the poor above other values.  Mishnah Bikkurim 3:8 records that “The rich brought their bikkurim in baskets of silver or gold, while the poor brought them in baskets of peeled willow twigs.” Tosafot Yom Tov asks: Doesn’t this embarrass the poor? Why didn’t they decree that the rich had to use willow baskets, as they did regarding mourners? Some suggest that the honor of the Temple took precedence.  Maybe halakhah is most interested in the dignity of poor mourners, or would-be brides. Or perhaps the Rabbis left bikkurim alone because the baskets were given to the kohanim, and therefore the rich paid directly and proportionately for their ostentation.

The modern equivalents of gold and silver baskets may be etrogim from family trees descended directly from King David’s, or matzot made so labor-intensively that they are worth their weight in gold. These extravagant products may support businesses that employ many people who would otherwise be poor. The risks are that the poor may be embarrassed to eat their machine matzahs or carry their asymmetrical etrogim, and disengage from the community, or worse, that the non-rich will be driven to spend unsustainable sums on mere halakhic baubles.

All these are cases where halakhah clearly requires nothing beyond the capacity of the poor. What happens, however, when baseline halakhah becomes too heavy a burden on the poor, so that they need to avail themselves of halakhic leniencies? Do the non-poor have a right to keep baseline halakhah, even if that will embarrass the poor, or should halakhic authorities – as best they can – seek to compel everyone to adopt the relaxed standard?  (Note that Deborah Klapper argues that the same question often arises in the context of disabilities, as for example use of Shabbat elevators.)  Is it a Torah value to ensure that the poor can freely invite the rich to meals, or to borrow their lulavim?

A fascinating responsum from the year 1852 addressed this issue head-on. Rabbi Yaakov Meir ben Chayyim Padua, Rabbi of Brisk, was asked to allow the eating of a type בעבליך (=?chickpeas?), a type of kitniyot, because the poor would find little else to eat otherwise. Likely there was a potato shortage.  Rabbi Padua easily reaches the conclusion that this is permissible for the poor. He then goes further:

If you were to say: Here too we will say this because circumstances are pressing (sh’at hadchak), so let us permit this exclusively for the poor who have nothing else to eat, but not for the burghers or the rich –

It would be improper to do this, because in truth there is no intrinsic prohibition, or even trace of a prohibition, in this (eating kitniyot), just (it was prohibited) for some reason they had, that one might come to error or something else (see Pri Chadash 453), and if we permit it for the poor and not the rich – the poor will have their joy of yom tov removed, because they will say: “There is something prohibited about this, but they permitted it to them because of the pressure of circumstances,” and they will be denied the joy of yom tov,

We find that Chazal were afraid of such consequences, as they say in Tractate Niddah “If so, his heart (conscience) will trouble him and he will separate (from his wife) and not fulfill the commandment of procreation” –

so too here, if we permit for the poor alone, some of the G-d-fearing will have their hearts trouble them, and they will avoid eating בעבליך, and thus they will be denied the joy of yom tov.    (Teshuvot Maharim miBrisk 48)

Rav Dovid Tzvi Hoffman makes a similar argument in Responsa Melameid L’Hoil 1:58 (the responsum is undated, so late 19^th-early 20^th century). German public schools met on Saturday. Rich Jewish parents could afford tutors for their children to make up the material missed, but the poor would fail if they were absent.  Rabbi Hoffman writes:

You might suggest that the Jew should hire a private tutor to teach his child the material covered in school on Shabbat.  Unfortunately, because of our many sins most Jews are poor and incapable of affording the expense of a private tutor for the Shabbat material.  Therefore, since the learning is a prerequisite for making a living, it is certainly considered a “slight mitzvah” and universally considered permitted, just like arranging an apprenticeship for a child is permitted in Shulkhan Arukh Orach Chayyim 307:5.

I say further that there are places where even those who can afford a private tutor would do better to send their children to school on Shabbat just as the poor people are compelled to do.  An example would be those places where many of our nation, because of our many sins, desecrate the Shabbat by writing, and Jewish students who don’t write on Shabbat are rare.  If there are more Jewish students committed to not writing on Shabbat, their hands will be strengthened – “they will help one another and say to each other: “Be strong!”  If the G-d-fearing students are few, though, we must be concerned that – Heaven forbid – they will not withstand this test of their commitment.  Certainly at least the weakest of them will falter.  It is appropriate for the rich to do something that doesn’t even amount to a “small prohibition” in order to save their Jewish brethren from “great prohibitions.”

I don’t mean to say that Maharim miBrisk or Rav Hoffman were necessarily correct in their rulings, or that they expressed a dispositive halakhic principle.  For example, Maharim MiBrisk’s ruling was lovingly criticized by Rabbi Malkiel Tenenbaum (Divrei Malkiel 1:28) writing in response to a potato shortage in 1880.  Rabbi Tenenbaum permits all kitniyot, but only for the poor.

Since the whole basis of the leniency we have explained with Heaven’s help is the pressure and compulsion of circumstances – therefore one may not permit except for the poor who endure that pressure, and not for the rich, and everyone who can make the effort not to eat kitnityot without experiencing that pressure is certainly forbidden to eat kitniyot.

But Rabbi Tenenbaum then provides another reason for insisting that the rich share the halakhic lot of the poor:

But according to what we are told, the gaon Maharim miBrisk spoke well in accordance with his times, when food was enormously expensive and there was no money, and certainly that tzaddik realized that there were many people who were ashamed to proclaim their poverty, and kept up the appearance of wealth, so that it would be humiliating for them to eat kitniyot, and they would instead endure the humiliation of hunger on yom tov – therefore he garbed himself in righteousness, as befit him and commanded that all of them eat, as this almost touched on pikuach nefesh according to what I’ve heard of the great expensiveness and hunger of that time, and in such circumstances we can say that “Better for a chaver to violate a lighter prohibition, etc. (= if he thereby prevents an am haaretz from violating a greater prohibition).”

Our ongoing crisis will pose many similar dilemmas. Challenges of supply may put inflationary pressure on Pesach products (although so far the news is good), and people who have for years been treated by relatives to Pesach vacations will now be forced to make their own sedarim, and find it hard to maintain the yom tov dignity that they are accustomed to. For example, my grandfather z”l refused to join us at the YU Sukkah for yom tov the year after they switched to serving on disposable dishes. Yet I don’t have Pesach china, or Pesach dishwashers.

Perhaps more seriously, the halakhic options available to the elderly and the immunosuppressed, or the quarantined, may become very different than those available to the rest of us. Specifically with regard to mourners, can we say that they must rely on options for kaddish that would be insufficient for the rest of us? Perhaps yes; perhaps this is an opportunity to correct the magical thinking that has arisen around kaddish. But no such arguments would have applied to the megillah, or will to Birkat Kohanim on yom tov. But perhaps we are less concerned outside the sphere of mourning?

Each halakhic issue in any case requires separate treatment. I hope only to have shown that poskim can and should think about class distinctions and other social consequences as they help us navigate these challenging times.

by Rabbi Aryeh Klapper

The Purim coronavirus crisis generated numerous public statements that the mitzvah of hearing the megillah could be fulfilled via a livestream. Coincidentally, after the publication of my Facebook post clarifying the difference between sh’at hadchak and bedieved, many of those statements were updated to say that livestreaming was sufficient only when no live option was available. Really what they meant to say was that livestreaming might be sufficient to fulfill the mitzvah, and that public and private health concerns required us to rely on that possibility when no safe in-person option was available.

Maybe they were right the first time? Rav Moshe Feinstein’s three responsa on the subject seem to state clearly that it seems more likely than not that one can fulfill the megillah by hearing it via microphone or telephone.

Rav Moshe is hesitant to permit this in practice because of social policy concerns. Such concerns should not affect the underlying halakhic question of whether one’s obligation has been fulfilled. If changed circumstances have obviated Rav Moshe’s concerns, or if one simply doesn’t share those concerns, then his position should be an adequate basis for relying on livestreaming in non-emergency situations.

I disagree with this read of Rav Moshe.  This claim arises from an imprecise reading of Rav Moshe’s responsa, which are carefully nuanced and jurisprudentially sophisticated. Let’s take a look at them in some detail (complete texts with my translation are available here).

The opening paragraph of Igrot Moshe OC2:108 states that “it is inappropriate (אין ראוי) to read the megillah so that people will hear via microphone.” Rabbi Feinstein then denies a report that he had previously ruled that one need not object (אין למחות בידם) to people who do this.

In the body of the responsum, however, Rav Moshe rejects his correspondent’s confident assumption that one cannot fulfill one’s obligation via microphone, because the sound is produced by something which is not itself obligated in the mitzvah. Rav Moshe contends that the microphonic sound is more likely than not considered to be the voice of the human speaker.  He furthermore is not certain that it is physically correct to say that the microphone produces an independent voice. He concludes:

For this reason it is possible that one should not object (אין למחות) on halakhic grounds to those who wish to read the megillah via microphone,

and there is no risk of corrupting other mitzvot such as shofar and Torah reading on Shabbat and yom tov, because it is forbidden to speak into a microphone on Shabbat and yom tov,

and regarding mitzvot of speech on weekdays, if they were also to read via microphone, if one should not object regarding megillah – all the more so (one should not object) to these.

However, since the matter is not unequivocally permitted, and this is a new matter entirely (ענין חדש בכלל),

one should object (יש למחות) in order to restrain them from chasing after other novelties, which they are ardently attracted to in these lands, as Your Honor wrote.

Rav Moshe formally presents the issue as whether one must object to synagogues that read the megillah via microphone.  His conclusion is that one must, but on social policy rather than halakhic grounds. Our question is whether this means that on pure halakhic grounds he endorses the position.

On first blush the answer is yes, since he states that it is more likely correct than not.

But on second thought, maybe not. There are at least three other teshuvot in which Rav Moshe states that an answer is more likely correct than not, and nonetheless frames the halakhah as “One should not object” rather than as “One may act so”:

1. OC 1:93 – The more likely correct position for a Shabbat blech is that covering the fire is sufficient, and one need not cover the controls. Therefore one can be lenient bish’at hadchak and need not object to people who rely on this position in ordinary situations.
2. OC 2:84 – The more likely correct position is that attaching things by sticking a needle through them is permitted on Shabbat. This position is certainly correct regarding diapers, where the attachment is necessarily temporary. However, one should not object to women who attach jewelry this way, even though the attachment may last.
3. OC 4:62 – The more likely correct position regarding Shabbat ending time is that of Arukh HaShulchan, and therefore one should not object to people who rely on it. But perhaps it is appropriate to be stringent and account for the conflicting positions.

What emerges from these cases is that Rav Moshe uses “more likely correct than not” for positions that he would choose where a choice is necessary, but that he would rather have people play it safe and avoid choosing.  However, he believes that one cannot object to people who make the choice even when choosing is unnecessary. Applying those rules to our case, he would prefer that people not rely on hearing the megillah via microphone, but if someone had already heard it via microphone, he would tell them not to make the berakhot if they read it for themselves later. Not quite endorsement, but pretty close.

However, careful attention to Rav Moshe’s language in OC 2:108 reveals an additional wrinkle. In addition to the language of “more likely correct than not,” Rav Moshe offers another ground for not issuing a definitive ruling:

כיון שלא ברור להיתר והוא ענין חדש

since the matter is not unequivocally permitted, and this is a new matter

The phrase inyan chadash also appears in YD 3:30, where the issue is whether placing items in a steam oven constitutes the method of koshering known as hag’alah. Rav Moshe states that it seems reasonable that this works.  However, because it is a new matter that never came before the rishonim, he permits it only for items that are clean, have been unused for 24 hours. are not generally used for sharp foods. He also states that one should not be lenient even to that extent for Pesach koshering, because even “negative absorbed taste” is forbidden. All this seems more definitive and less positive than his rulings in the three cases above that do not involve a “new matter.” Moreover, the hesitations here are not connected in any way to fears of sociological impact.

Like our case, YD 3:30 is a new matter because it involves new technology. I suggest that Rav Moshe regards rulings about unprecedented technology as inherently tentative. One might have misunderstood the reality, or misjudged the stakes, or erred in some other crucial way. The ruling in such cases will be to avoid choosing among positions if at all possible.

This insight helps explain two confusing elements of a different teshuvah regarding microphones.

In OC 4:91:4, dated 5732, Rav Moshe rules that a hospitalized woman should hear havdalah by phone if no in-person option is available, and cites his psak in OC2:208 as precedent.  But he adds two surprising things.

1)      Havdalah is like all other weekday speech mitzvot in this regard, except for keriyat Sh’ma and Birkat HaMazon. One must object to anyone setting out to fulfill the Shema and Birkat HaMazon via microphone.

If Rav Moshe endorses the position that hearing via microphone fulfills one’s obligation, why should one object in those two cases?

2)      One must answer Amen to blessings heard via telephone or microphone out of doubt = misafek.

Why is this considered a doubt? If it is more likely true than not, we have a majority = rov!

I suggest that the answer to both questions is that Rav Moshe had a sort of metadoubt about all rulings issued with regard to new scientific realities. Such rulings may seem “more likely than not,” but the overall odds never go above 50%, i.e. never escape the category safek. Therefore: One should object to the use of microphones to fulfill Biblical commandments, such as keriat shema and birkat hamazon. (Havdalah is only Biblical when it actually ends Shabbat for you; once you’ve said atah chonantanu or barukh hamavdil ben kodesh lechol it becomes Rabbinic.)

In OC 4:126, dated 5740, Rav Moshe returns to the question of whether one can hear the megillah via microphone. A school knew that when its beit knesset was packed, as for example to hear the megillah, the female students could not hear without a microphone. They had the option of delaying the reading until the cafeteria was cleaned up, and having two smaller minyanim, or else of using the microphone. Rav Moshe insisted that they delay the reading despite what he acknowledges as a “slight dchak,” without detailing his rationale.

Delaying the megillah means delaying the breakfast. So Rav Moshe imposes a high standard to be considered a sufficient sh’at hadchak to allow reliance on microphones. Since he does not mention sociological concerns here, his concerns presumably are genuinely halakhic. This demonstrates again that his psak in this context was tentative.

In other words – forced to choose, Rav Moshe chose the position that hearing the megillah by microphone or telephone was sufficient. But he tried to avoid the choice whenever possible, He took a much stronger position against relying on technology for Biblical mitzvot, and emphasized that Amen is answered out of doubt, because he understood that changes in scientific understanding, halakhic understanding, and reality might reveal that his evaluation was wrong. He was trying to rule as necessary in the moment while avoiding setting a precedent.

In the forty years since Rav Moshe’s third teshuvah, the world has changed enormously. Wireless connections and digital signal processing mean that we are dealing with completely different technology than he discussed. His notion that the propagation of sound waves (which he is somewhat skeptical of) is no different than the transformation of speech into bits seems off. He never discusses systems where microphones generate sound through multiple speakers handling different frequencies. The internet and virtual reality have radically different social roles.

For all these reasons, I think that Rav Moshe’s position is a weak reed to build on. In a truly extreme sh’at hadchak such as mass quarantines, it can still be relied on. But the halakhic dialogue about fulfilling mitzvot via electronic transmission or other forms of virtual reality should begin from first principles.

by Rabbi Aryeh Klapper

The concept of commandedness is at the heart of halakhic Judaism. We are fond of pointing out that mitzvot are commands, and that we are commanded, metzuvim and metzuvot. But translations are almost always misleading.  What does the word tzivui actually mean?

Rabbi Mordechai Feinstein, a few of whose writings are published in Igrot Moshe volume 8, proposed the fascinating idea that commandedness is a condition that precedes any actual commands. All human beings are born into the world in a state of being metzuveh or metzuvah. G-d then assigns each of us a specific set of mitzvot.

This explains how Tosafot can suggest that (according to Rabbi Yehudah) blind Jews are Biblically exempt from all mitzvot and yet bound by Rabbinic legislation. Doesn’t the authority of Rabbinic legislation derive from the Biblical commandment “Do not stray from all they tell you, right or left?” The answer is that the verse “Do not stray” is not a commandment, but rather a transfer to human beings of G-d’s inalienable authority to command.

I suggest that a further qualification is necessary.  There is a fundamental difference between the mitzvot that the Torah assigns to Jews, and those that are assigned to humanity as a whole. The Torah is binding on Jews only because we accepted it, because we took an Unbreakable Vow at Sinai. The mitzvot of humanity are binding just because.

It seems likely to me that Biblically exempt Jews can be bound by Rabbinic legislation only because they are considered to have taken the Vow. (One could instead argue that the Rabbis have the authority to impose their legislation on Gentiles as well as Jews, but followed G-d’s example in choosing not to.)

This raises a further question. Is G-d’s inherent authority to command humanity unlimited?  Could He have legitimately imposed the Torah on humanity, but chose not to?  The perhaps radical alternative is that G-d’s inherent authority is narrower than the Torah.  The Torah is a representation of His will, but retzon Hashem per se is not binding. However, forming an intimate relationship with Him involves voluntarily accepting it as binding. (Perhaps the only way to fully accept retzon Hashem as binding is if one does not know in advance the content of that ratzon, i.e. via “na’aseh v’nishma.”)

It is possible to read Sanhedrin 56b as presenting a fundamental dispute about this issue.  Genesis 2:16-17 tells us

וַיְצַו֙ ה֣’ אֱלֹהִ֔ים עַל־הָֽאָדָ֖ם לֵאמֹ֑ר

מִכֹּ֥ל עֵֽץ־הַגָּ֖ן – אָכֹ֥ל תֹּאכֵֽל:

וּמֵעֵ֗ץ הַדַּ֙עַת֙ ט֣וֹב וָרָ֔ע – לֹ֥א תֹאכַ֖ל מִמֶּ֑נּוּ

כִּ֗י בְּי֛וֹם אֲכָלְךָ֥ מִמֶּ֖נּוּ – מ֥וֹת תָּמֽוּת.

Hashem Elokim imposed a tzivui on Adam, saying:

From all the trees of the Garden you may surely eat.

But from the Tree of Knowledge, Good and Evil – you must not eat from it

because on the day of your eating from it – you will surely become mortal. 

What tzivui did G-d impose?  One might say simply: “Not to eat the fruit of the Tree,” but Chazal understood the verse as encoding a series of commandments.  According to Rabbi Yochanan, the first word, vayetzav, refers to the obligation to create functioning legal systems, whereas Rabbi Yitzchak understood it as referring to the prohibition against avodah zarah.

This dispute may reflect fundamentally distinct underlying conceptions.

For Rabbi Yitzchak, the right-to-command humanity emerges from G-d’s status as the only source of value. The core of obligation is that we must worship Him and Him alone, because that is the only way for anything we do to have meaning. All obligations are fundamentally the same.

For Rabbi Yochanan, by contrast, humanity can be commanded involuntarily only for its own sake, only to the extent necessary for its survival and perhaps its flourishing. Avodah zarah is prohibited because worship of a single G-d, i.e. belief in a single source of value, is prerequisite for civic virtue.  Perhaps Rabbi Yochanan believes that the fact of our having been created is sufficient to demonstrate that our survival and flourishing has value.

Various midrashei halakhah and midrashei aggada record a different conversation about the meaning of the word tzivui. The version in Yalkut Shimoni (Shemot 377) states that the opening verse of Parshat Tetzaveh imposed an immediate obligation to bring the oil for the Mishkan, whereas Vayikra 24:2, which contains a tzivui with the same content, extends it to all generations. Rabbi Yishmael then comments:

היה רבי ישמעאל אומר

הואיל ונאמרו צוואות בתורה סתם,

ופרט לך הכתוב באחת מהן שאינו אלא מיד בשעת מעשה ולדורות,

אף פורטני בכל הצוואות שבתורה שלא יהו אלא בשעת מעשה ולדורות.

Rabbi Yishmael would say:

Since the Torah often records tzivuyim plain (i.e., without stating the time to which they apply),

and the Torah specifies regarding one of them (oil) that it applies immediately and for all generations,

this teaches me that all tzivuyim in the Torah apply immediately and for all generations.

Rabbi Yishmael’s comment is followed by three other Tannaim making a statement of the form “. . . אין צווי בכל מקום אלא / The term tzivui as used in Tanakh always means . . .”

a) Rabbi Yehudah ben Beteirah says that tzivui = ziruz, or encouragement/inspiration to action. His evidence is that in Devarim 3:28, G-d tells Mosheh

וצו את יהושע וחזקהו ואמצהו

Be metzaveh Yehoshua, and strengthen him and hearten him

There is no command mentioned in this context, and Rabbi Yehudah ben Beteirah probably understands “strengthen and hearten” as defining the term tzav. (The parallel to Yeshayah 38:1, where Yeshayah tells Chizkiyah to be metzaveh his house because he is dying, suggests that we are referring to an ethical will, what becomes known as a tzava’ah.)

b) Rabbi Shimon bar Yochai says that a tzivui always involves a financial loss (here the cost of the donated olive oil; the loss is not as evident in all the examples he brings)

c) Rebbe says that the word tzivui refers to an azharah, which can mean either a commandment generally or specifically a DON’T. His evidence is G-d’s commandment to Adam in Genesis 2:16.

Rebbe’s position may accord with that of Rabbi Yitzchak. The word tzivui means the same thing when it refers to the Torah and when it refers to general human obligation. Because Rabbi Shimon bar Yochai and Rabbi Yehudah ben Beteirah seek alternative meanings, and settle on ones that fit poorly with Genesis 2:16, it is tempting to suggest that they accord with Rabbi Yochanan.

However, an array of commentators disagree.  Their evidence is from the version in Sifra:

צו – אין צו אלא זירוז מיד ולדורות.

אמר ר’ שמעון:

ביותר – כל מקום שיש בו חסרון כיס.

Tzav – This means ziruz immediately and for all generations.

Said R. Shimon:

B’yoteir/more – everywhere there is financial loss.

They understand b’yoteir as saying that Rabbi Shimon bar Yochai is only adding a nuance, not providing a distinct meaning. Moreover, this version seems to conflate commandedness with ziruz, and thus deny any distinctiveness to Rabbi Yehudah ben Beteirah as well.

However, what may be a version of Rabbi Yehudah ben Beteirah,  found with variations in Sifrei Zuta (27) and Yalkut Shimoni (Bamidbar 775), opens up a new possibility:

וצוית אותו לעיניהם –

אבל אין אתה יודע הצווי הזה מהוא

נאמר כאן וצוית אותו

ונאמר להלן קרא את יהושע והתיצבו באהל מועד ואצונו (דברים לא יד)

הא אין צווי בכל מקום אלא ד”ת.

You (Mosheh) must be metzaveh him (Yehoshua) before their eyes–

I would not know what this tzivui is.

Now that it says here you must be metzaveh him,

and it says later (Devarim 31:14) Call Yehoshua, and stand in Ohel Moed, and I (G-d) will be metzaveh him

therefore tzivui in every context means “words of Torah.”

The argument here is that whenever G-d Himself is metzaveh, that means that He is teaching Torah. Human beings translate that Torah into commands, encouragement (see Rashi to Devarim 31:14: “azarzenu”), etc., but the core of the relationship is pedagogic.

If this presumably applies to the initial vayitzav in Eden as well, then for the author of this midrash (possibly Rabbi Yehudah ben Beteirah), G-d commands by educating. This might mean that He educates about His will, but more likely, it means that He educates us about the good, and the good is binding independently. Why then is the Torah binding only on Jews? I suggest that many goods can only be achieved in the context of a relationship.

One last possibility. Ramban reads vaatzavenu in Devarim 31:14 as meaning “I will make him a metzaveh.” Perhaps we should read every tzivui in Torah not as a direct command, but rather as a grant of authority to interpreters, in the spirit of the Torah not being in Heaven. On this interpretation, commandedness always refers to Rabbi Feinstein’s condition of being ready to receive specific commands, with the recognition that such commands will inevitably be subject to human mediation.

If we assume that Ramban is in concert with our midrash, rather than an alternative, we can say that when G-d teaches Torah, He grants authority. This contains two valuable lessons for human teachers of Torah.  On the one hand, our efforts – like G-d’s – should always be aimed at empowering our students. On the other hand, we cannot ignore that our students – like G-d’s – are human, and may be tempted to use their power to control others who have learned less, rather than seeking to educate them.