Monthly Archives: October 2020

October 30, 2020 · 12:42 pm

Does Halakhah Value Emotional Health and Ordinary Human Relationships?

by Rabbi Aryeh Klapper

Rav Yisroel Salanter famously said that “We should worry about our own ruchniyus (spiritual being) and everyone else’s gashmiyus (physical being).” This is an ethical rather than a halakhic statement. There are numerous halakhic requirements to look after our own gashmiyus, such as venishmartem meod lenafshoteikhem, and other people’s ruchniyus, such as lifnei iver (placing a metaphorical stumbling block in front of the spiritually blind). But we should always look for the influence of ethics on halakhah, descriptively and prescriptively. 

The point of Rav Yisroel’s statement is to oppose paternalism. We should provide for other people’s physical needs without asking whether hunger would be better for their souls than food security. The halakhic parallel, addressed by many poskim, is whether one is allowed to give food to poor people who won’t say berakhot before eating it. The formal question is whether this constitutes a violation of lifnei iver; under the influence of Rav Yisroel’s ethics we should look hard for ways to say that it isn’t. 

This is not at all the same question as whether one can invite non-observant Jews to a Shabbat meal if they will drive home. The formal frame there is often whether the possibility of kiruv outweighs the immediate violation, in other words exclusively about the other person’s ruchniyus. So perhaps Rav Yisroel should drive us to look hard for ways to forbid this.

But there are other informal ways to think about the question. Maybe there is a value per se in fostering Shabbat as a social space for all Jews, even if no one will thereby become more observant. Maybe there are relationships that matter (or might come to matter) emotionally to both of us, yet will wither if we can’t spend Shabbat meals together. Are the emotional goods of friendship, family, and community part of gashmiyus, or ruchniyus?

My narrative frame for this question is the story of Avraham and Lot. 

Parshat Lekh Lekha opens with G-d telling Avram that he must leave his homeland, his natal culture, and his father’s household if he wants to achieve greatness. Greatness is over the horizon in “the land that I will show you.” Avram promptly leaves homeland and culture, but brings his nephew (meaning: his father’s grandson) Lot along. The result is that his horizon of greatness recedes. G-d shows him the land only

אחרי הפרד לוט מעמו

after Lot separated from being with him.

Rashi goes further:

כל זמן שהרשע עמו – 

היה הדיבור פורש הימנו

the entire time that the wicked one was with him – 

the experience of G-d’s speech disengaged from him.

Lot’s presence caused a sustained decline in the quality of Avram’s ruchniyus. 

Was Avram aware this was happening? If yes, did he make the right choice?

Abravanel makes clear that Avram was emotionally bonded with Lot, and hints that Avram was aware that Lot’s presence was problematic. G-d showed Avram the land after Lot’s departure in order to console him:

ולפי שאברהם בהפרדות לוט הרגיש צער ועצבון

,מפני הקורבה שהיתה ביניהם 

– ושלא נשאר לו זולתו מכל בית אביו

…לכן באתהו הנבואה לשמחו 

because Avraham experienced suffering and deep sadness at Lot’s separation

because of the closeness between them,

and because no one aside from him was left to him from all his father’s household – 

therefore the prophecy came to him to cheer him up… 

R. Yitzchak Arama (the Akeidat Yitzchak) goes further. The fight among the shepherds did not “just happen”; rather, it was Hashem’s way of pushing Avram to make the final break.

– והנה אחר שאברהם לא נתן אל לבו להפריד את לוט ממנו 

.הוא ית’ סבב סבת הפרוד במה שלא נשאה הארץ אותם

– ויהי ריב בין רועי מקנה אברם ובין רועי מקנה לוט

,כי לא תאונה לצדיק עוד חברתו

כאשר נצטוה מתחלה להתרחק מבית אביו לגמרי

After Avraham did not have it in his heart to separate Lot from him

He the Blessed brought about the separation via having the land “unable to bear them (dwelling together)”

So there was a dispute between the shepherds of Avram’s flocks and the shepherds of Lot’s flocks – 

so that the righteous one (Avram) would no longer happen upon his companionship

as he was initially commanded to distance himself utterly from his father’s household

Or HaChayyim sees both possibilities.

,עוד ירצה לומר שילך לו מארצו 

,אך לא יהיה כסדר יציאתו מאור כשדים שיוליך עמו מולדתו ובית אביו 

,אלא הוא לבדו יעזוב ארצו 

.ויפרד גם ממולדתו, ואפילו מבית אביו

.אך אברהם לא הבין זה בדברי ה’, ולקח עמו לוט

או אפשר שהבין כן, אלא שלוט דבק בו 

.כאומרו וילך אתו לוט – דבק בו

,והגם שאמר אחר כך ויקח אברם וגו’ ואת לוט וגו’ – פירוש שלא דחפו 

.עד שימצא המצאה שלא יכלימהו 

– ולזה תמצא כי כשמצא סיבה קטנה שרבו הרועים

,’תיכף אמר אליו – הפרד וגו’ אם הימין וגו 

,והדבר הוא כמעט זר שיאמר אליו כדברים האלה בכל כך הרחקה 

– ‘אלא לצד שהיה חושב מחשבות להפרידו כדבר ה 

.לזה תכף במוצאו סיבה דחפו בב’ ידים

(The original command) meant that (Avram) should leave his homeland

but not in the way he left Ur Kasdim, taking along his natal culture and his father’s household,

but rather he alone should depart his land, 

and also he should separate from his natal culture, and even from his father’s household.

But Avraham did not understand this in the words of Hashem, so he took Lot along with him.

Or possibly he did understand this, but Lot stuck to him, 

as Scripture says Lot went with him, (meaning) he stuck to him

and although Scripture says afterward Avram took… and Lot ­– this means that he didn’t push him away

 until he found an occasion that would not humiliate him.

Thus you find that when Avraham found a slight reason, that the shepherds quarreled – 

He immediately said to him: Separate, please… if you choose the righthand side… 

It is almost weird for him to say the words to him with such alienating force,

unless he was already thinking about how to separate him in accordance with Hashem’s words – 

therefore, as soon as he found a reason, he pushed him away with both hands.

Or Hachayyim’s interpretation is difficult to translate into Halakhah. Once you understand what G-d requires of you, don’t you have to follow it immediately? But perhaps we can say that humiliating someone else is the equivalent of killing them, and so Avraham had to wait for an excuse.

The sixteenth century commentator Ma’asei Hashem does not find this explanation convincing. Rather:

– כי מה שנאמר וילך אתו לוט

,הוא כאילו יאמר שהוא לא לקח אותו עמו ולא פיתה אותו 

,כי היתה כוונתו שלא ילך אחד ממשפחתו עמו 

.כאשר צוה אותו השם יתברך

– אבל כאשר לוט מעצמו בחר ללכת עמו

,לא היה יכול לעכב עליו מלבוא תחת כנפי השכינה

:ולכך נאמר שלקח אותו עמו

when Scripture says Lot went along with him –

it is as if it said that Avram did not take Lot with him, or entice him, 

because his intent was that no one from his family would go with him, 

as Hashem the Blessed had commanded him.

But once Lot chose on his own to go along with him –

Avram was not able to prevent him from coming under the wings of the Presence,

and therefore Scripture says that he took Lot along with him. 

For Maasei Hashem, what justifies taking Lot along is an ethical imperative not to interfere with someone else’s spiritual growth, even at the expense of one’s own. This is not in conflict with Rav Yisroel’s principle because it is not paternalistic; Avram does this only because Lot chooses to come on his own. Contrast this with Rav Yosef Shalom Elyashiv, who writes (Kovetz Teshuvot HaRav Elyashiv 3:185):

כל עוד ואברהם אבינו חשב לתועלת – טיפל בו 

,אף שידע שבגלל זה נפסק ממנו הדיבור

כלומר הקריב גם הרוחניות שלו בגלל מטרה זו לפרסם מלכות שמים בעולם

So long as Avraham Avinu thought it was purposeful – he engaged with Lot,

even though he knew that because of this, the Divine Word had been cut off from him

meaning that he sacrificed even his ruchniyus for the sake of this goal, 

to publicize the kingdom of Heaven in the world

Perhaps Rav Elyashiv can also be read non-paternalistically, but there is something paradoxical in saying that one sacrifices one’s ruchniyus to achieve one’s own spiritual priority.

What I am missing in all these explanations, with the possible explanation of Abravanel, is the value of Avraham and Lot’s relationship as such, to each of them. I’m also missing the category of loyalty. Lot chose to go with Avram on a journey to an unknown land, and he seems to have accompanied him through a dangerous adventure in Egypt. Aside from Lot’s spiritual growth, does Avraham owe Lot loyalty? Are Avraham and Lot better able to cope with the distractions, frustrations, and crises of ordinary life because they have each other to talk to? Does Lot’s presence make Avraham better able to live up to his own ideals of interpersonal character and behavior? Might that be worth being on a prophecy diet (many commentators point out that Hashem does convey messages to Avram before this; they’re just terser)?

There are many ways in which these ethical questions translate into halakhah. The most obvious cases are those of married couples in which one party grows more interested in observance, but they come up in some way in almost every human relationship. They also affect the ways in which we construct those relationships both individually and communally. I can think of no better way to end an essay on the value of relationships than by saying: “We need to talk about this.”

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October 23, 2020 · 4:02 am

Everything You Knew About Jewish Law and Abortion Is Wrong

by Rabbi Aryeh Klapper

INTRODUCTION

In a world of shouting extremes, Jewish law is the adult in the room. We do not believe that full human identity is established at conception; and we do not believe that abortion is a morally neutral choice made by a subject about an object. Our stable and coherent position reflects the consensus of Rabbinic scholars over millennia. It represents the clear dictates of Scripture and Talmud rather than a messy ongoing attempt to responsibly and empathetically balance radically conflicting opinions about law, ethics, and public policy. However, this is true only with regard to abortions committed by Jews. Halakhah regards abortion committed by nonJews as a capital crime, even when done to save the life of the mother.

Not. 

The modality of this essay is “Show and Tell.” I’ll present a winding chain of halakhic abortion rulings and discussions. Then, with only a few words of framing, I’ll leave you to decide what you think about this Dvar Torah’s title and opening paragraph. 

BODY

Mishnah Ohalot 7:6 reads:

If a woman is having a difficult labor

we cut up the fetus in her womb and remove it limb by limb

because her life precedes its life.

If most (of the fetus) has emerged –

we may not touch it

because we do not push aside one nefesh for the sake of another nefesh.

In his Commentary to Talmud Sanhedrin (72a), Yad Ramah (Rabbi Meir Abulafia, 1170-1244) explains this Mishnah on the basis of a halakhic midrash attributed to Rabbi Yishmael on Talmud Sanhedrin 57b:

as Scripture writes:

The shedder of the blood of an adam/human in a human –

Which is a “human in a human?” Say this is a fetus.

Rabbi Yishmael’s position is that the Noachide prohibition against bloodshedding extends to abortion. By citing his rationale to explain Mishnah Ohalot, Yad Ramah signals that the same prohibition applies to Jews. He next connects the Mishnah to Shemot 21:22, which is understood to establish a financial penalty as the punishment for an assault that leads to a miscarriage.

But this is specifically when most of the fetus has emerged,

but so long as it is within – it is not a nefesh, and the Torah did not take pity on it.

We can know this because the Torah does not make one liable to execution for killing it,

as Scripture writes (Shemot 21:22):

and her offspring emerge . . . he must surely be punished.

How can Yad Ramah claim that abortion is not a capital crime, when a) all Noachide prohibitions are punishable by death, and b) the verse which prohibits abortion states that the perpretrator “shall have his blood shed?!” The answer is that the prohibition against abortion – for both Jews and Noachides – applied only once the fetus has partially emerged. Prior to that, the fetus is neither a “nefesh” (for the Mishnah) nor an “adam” for the Torah.

Yad Ramah’s position is noted by Rabbi Meir Don Plotzky (1866-1928), known as “the K’li Chemdah,” in his book Chemdat Yisroel (p.88a). Rabbi Plotzky was bothered by the formal rule that prohibitions found in the Torah preceding the Sinaitic Revelation, and not repeated afterward, apply only to Jews. If so, how can the prohibition against abortion apply only to Noachides? His solution is that the prohibition is repeated after Sinai, in Leviticus 24:27:

A man who strikes kol nefesh adam must certainly be killed

The seemingly extraneous word kol/all includes a viable fetus within the scope of the prohibition. Once the prohibition is repeated, it applies to both Jews and nonJews, as Yad Ramah said. However, Rabbi Plotzky understands the verse as establishing a prohibition against abortion even before the fetus has emerged at all. 

This prohibition is capital for nonJews, and noncapital for Jews, for tangential reasons having to do with rules about legal presumptions. Rabbi Plotzky concludes that even for Jews, the punishment for aborting even a pre-emergent fetus is “death at the hands of Heaven, because surely it is no better than spilling seed, which the Shulchan Arukh holds deserves that punishment.”

Yet what are we to do with Exodus 21:22, which establishes a financial penalty for abortion? Doesn’t the Talmudic rule kim lei b’derabban minei (= we administer only the more severe penalty) prove that there is no death at the hands of Heaven?

Rabbi Plotzky responds that the rule applies only to punishments, not to opportunities for atonement/kapparah. 

But doesn’t Bamidbar 35:31 explicitly ban accepting atonement money/kofer in lieu of the penalty for murder?

Rabbi Plotzky responds that Bava Kamma 83b reads the verse as limiting the ban to kofer for a murderous nefesh, but allowing money to replace “an eye for an eye” and other permanent injuries. Since the fetus is not a nefesh, the kofer does not stand in for the perpetrator’s nefesh, and can be accepted.

Rabbi Plotzky’s reading seems against the plain words of Yad Ramah, and he also acknowledges a major irony: the term nefesh in the Mishnah is intended to exclude the fetus before most of it emerges, whereas he claims that the term nefesh in the verse is intended to include the fetus before any of it emerges. Rabbi Yechiel Yaakov Weinberg (S’ridei Eish 1:162) therefore rejects this reading out of hand. 

But Rabbi Weinberg is unwilling to accept the plain meaning of Yad Ramah either. Instead, he asserts “there must have befallen here some accidental deletion, because Ramah actually meant to say that only Noachides are liable for killing a fetus, as in the verse who sheds the blood etc., but not Jews, or else this paragraph was copied by mistake from somewhere else. It is well known that publishers of our predecessors in years past were not very precise and did not make the effort to find multiple manuscripts, by means of which they would have been able to rescue the books from gross distortions. It is not appropriate to multiply pilpulim only for the sake of resolving the distortions of scribes and copyists.”

Rabbi Weinberg was responding to a question from an Orthodox medical association in London. Britain’s single-payer National Health Service required doctors to test for and to offer abortion of rubella-affected pregnancies after the first trimester, with no religious conscience exemption. The Orthodox doctors asked whether they were required to risk severe consequences to avoid participating.

The first text Rabbi Weinberg cites is the ending of Tosafot Niddah 44a s.v. ihu:

If you were to ask:

On the assumption that it is muttar (=permitted) to kill a fetus in the womb even if its mother has died, 

and we do not treat as merely ‘resting in a box,’

why do we desecrate Shabbat for it by bringing a knife through a public domain to incise the mother, 

as is established on Arakhin 7b?

One can answer:

Nonetheless, for its pikuach nefesh we desecrate Shabbat, 

even though it is muttar (=permitted) to kill it . . .

The simple meaning of Tosafot is that abortion is simply permitted, even of a fetus that would survive outside the womb. Rabbi Weinberg cites Maharatz Chajes as accepting this reading, but Rabbi Yaakov Emden and Rabbi Yair Bachrach (Shu”t Chavot Yair 31) as rejecting it out of hand, for different reasons. Rabbi Emden writes simply that “who would permit killing a fetus for no reason, even if it is not a capital crime?” Rabbi Bachrach thinks that the idea that one may desecrate Shabbat to save a life that one could kill with impunity is ridiculous. Rav Moshe Feinstein (Igrot Mosheh CM 2:69) states that the text of Tosafot is obviously corrupt and should read patur (=exempt) rather than muttar. 

Rabbi Weinberg reaches a lenient but tentative conclusion. His responsum ends on a cautionary note: 

I must emphasize that everything we have written to permit abortion in order to save a woman from illness is only according to those rishonim who held that the Mishnah’s permission in the case of a difficult childbirth is because a fetus is not called ‘nefesh.‘ But according to the position of our master Rabbi Chayyim Halevi (Soloveitchik), that Rambam permitted the dismembering of the vlad in the mother’s womb only because it is a ‘pursuer,’ but when it is not a pursuer – it is forbidden, and this position is also taken by Noda B’Yehudah, R. Yeshayah Pick, and the author of Chavot Yair –  one cannot permit except when the vlad is in the category ‘pursuer.’ But since most rishonim disagree with Rambam, as cited above, perhaps one can permit by relying on the author of Sh’eilat Yaavetz, as I wrote above, especially as some disagree with our master regarding the proper understanding of Rambam – see Shu”t Achiezer 3:72 at the end of section 3.

He adds a postscript 15 years later:

Now that I have seen in (the periodical) Noam vol. 6 that the Gaon Rabbi I. Y. Unterman, the Chief Rabbi in the Land of Israel shlita, forbids aborting the fetus of an ailing woman even during the first 40 days, in practice one must consult with great decisors . . .

Rabbi Yitzchak Zilberstein (Chashukei Chemed to Bava Metzia 85a) addresses whether a woman can conceive and then abort a fetus as a donor of nerve tissue to her father, who suffers from Parkinsons. Rabbi Zilberstein responds in the negative, on the ground that the fetus cannot possibly be viewed as “pursuing” the father. In other words, he adopts Rabbi Soloveitchik’s understanding of Rambam under which feticide is considered bloodshedding for Jews, as it is for Gentiles, and permitted only under the rubric of ‘pursuer,’ which also permits killing adults.

CONCLUSION:  

What we’ve seen above are mainstream and broad halakhic positions on abortion ranging from technical permission (social policy is a separate matter) to life-begins-before-conception to this-is-essentially-murder. This range of opinions can be expanded and greatly nuanced (look for this in an upcoming Winter Beit Midrash!). My hope is that this narrow exercise will enable readers to broaden and nuance their understandings of the halakhah itself and of the relationship of halakhic discourse to the ongoing political and legal controversy in the United States.  

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October 16, 2020 · 1:39 pm

Should Halakhah Require Belief that Women Are at Least Equal to Men?

by Rabbi Aryeh Klapper

Berakhot 61a records a dispute between Rav and Shmuel as to the identify of the “tseila” that Hashem took from Adam and built into Chava. One of them said it was a face, implying that Adam was initially androgynous; the other said that it was a tail, thus explaining human acaudality. It seems pretty clear that the first opinion holds a more exalted view of women than the second. 

Both positions and their implications reverberate through the tradition. Feminists and lehavdil misogynists can each selectively but accurately quote Chazal for their own purposes, as they can Scripture. 

Yet today, I think, there is a consensus within Modern Orthodoxy, and increasingly throughout Orthodoxy, that women should be regarded as equal faces and not as tails, let alone as Dudley Dursley’s unwanted tail. People do not say that “Men are form, women are matter” or the like without adding apologetics; the exemption from time-bound commandments is explained on the basis of intuitive spirituality, not lesser responsibility; and so forth. My teacher Rav Aharon Soloveitchik zt”l’s contention that Creation is narrated in ascending order of holiness, culminating in women, seems like a comfortable vort confirming what we already know. 

So here’s my question: Can we pasken that women were created from an equal face rather than from a tail? Can we say that it is against halakhah to take a practical position that depends hashkafically on the “tail” side?

This past Tuesday was the wonderfully serious, fun, and stimulating first session of CMTL’s new Online Campus Fellowship (OCF). The first question we addressed was whether “hashkafic” issues are justiciable, meaning whether they can be decided halakhically. (For some of the literature on this issue, see Rabbi Dr. Marc Shapiro, The Limits of Orthodox Theology, pp. 141-146.)

Stereotypically, it is the “right wing” that argues for ruling intellectual positions out of bounds, and the “left wing” that lets a thousand hashkafic flowers bloom. This stereotype is at best historically contingent. So I thought it would be valuable here to share some of the material from the OCF session, and then raise the question of how Modern Orthodoxy should relate to intellectual positions with real traditional grounding that we nevertheless find unacceptable.

The locus classicus for this discussion is Sanhedrin 98, which record the position of a Rabbi Hillel that

אין משיח לישראל, שכבר אכלוהו בימי חזקיה

There is no Messiah for Israel, as they already consumed him in the time of Chizkiyah

This seems in obvious contradiction to Maimonides’ statement in Laws of Repentance 3:6 that one who denies “the coming of the redeemer = ביאת הגואל” has no share in the World to Come, but rather is “cut off and destroyed and judged for their great wickedness and sins forever and ever.” Would the Talmud quote somebody as a Rabbi if they had no share in the World to Come?

In the opening section of Sefer haIkkarim, R. Yosef Albo rejects all attempts to reconcile Rabbi Hillel’s statement with Rambam. Rather, he asserts, Rambam is incorrect in claiming that one who believes there will be no Messiah loses their share in the World to Come. That punishment ensues only for someone who denies a truth that is philosophically necessary for our religion, whereas belief in the Messiah is a truth that is not philosophically necessary. However, Albo still classifies Rabbi Hillel as a sinner. He does not explain what the category “sinner” means here.

Chatam Sofer (Shu”t Chatam Sofer 2 (YD) 356) provides a developed halakhic explanation.

Rabbi Hillel (Sanhedrin 99a) said “There is no Messiah for Israel”

Rashi explained this to mean that the Holy Blessed One Himself will redeem them, without an agent . . .

But even according to this explanation, the halakhah does not follow Rabbi Hillel,

and someone who says “There is no Messiah,” and holds like Rabbi Hillel, is a denier/kofer of the entirety of Torah, which states as a rule “Incline after the majority” –

since the majority overruled Rabbi Hillel, and said against him – it is not proper for anyone to follow him

as for example “In the place of R. Eliezer they would cut down trees to make charcoal to make iron (to make a knife) for the purpose of circumcision (on Shabbat),”

but after the halakhah was decided via the majority of jewish sages against him (and we rule that one can only violate Shabbat by performing the circumcision, not to prepare for it) – 

someone who acts in accordance with Rabbi Eliezer’s position on Shabbat in the presence of witnesses and with prior warning would surely be stoned, and would not be able to plead that he held like Rabbi Eliezer.

Chatam Sofer asserts here that intellectual arguments are subject to the same halakhic decision mechanisms as practical arguments. Therefore, a position that was legitimate at one point in history can be kefirah/heresy at another. The Talmud still refers to RABBI Hillel because he did nothing wrong by holding his position, any more than Rabbi Eliezer did by holding his halakhic position. For that matter, Rabbi Hillel’s position may have been legitimate for some period after his death for his students.

My teacher Rabbi Michael Rosensweig shlita explained Chatam Sofer as follows, if I understood and remember correctly: Ideas that seem compatible with Judaism can, over time, be revealed as incompatible. The Halakhah does not rule directly whether ideas are true or false, but it can rule whether ideas are incompatible with the overall system. It is not clear to me whether the standard of incompatibility here is the same as R. Albo has for something to be an ikkar. (It also seems to me that by this reasoning, the same should be true in reverse: ideas that were once thought incompatible, and therefore banned, can become compatible and therefore permitted.)

Chatam Sofer’s claim that Rabbi Hillel was overruled is based on the amora Rav Yosef’s reaction to his position: שרא ליה מריה לרבי הילל! = May his Master forgive Rabbi Hillel! (Rav Yosef then contends that since the 2nd Temple prophet Zechariah refers to a human Messiah, it cannot be that any hope for such a Messiah was consumed in the time of the First Temple King Chizkiyah.) 

Some claim that Rav Yosef’s extreme rhetoric is evidence that Rabbi Hillel’s position was theologically delegitimated, not just halakhically overruled. However, the evidence is at best ambivalent. On Yoma 86a Rav Nachman bar Yitzchak defines a desecration of G-d’s Name as when someone acts in a way that causes his friends to say this about him, but on Berakhot 25a, Eiruvin 29a, and Sukkah 32b the phrase is used in ordinary halakhic conversations. Moreover, Rabbi Hillel’s position is cited as the last in a series of four Tannaitic positions in a beraita, and then followed by three other Tannaitic positions in a second beraita, with no indication that it is disfavored. It seems odd for an Amora to unilaterally declare a Tannaitic position theologically out of bounds. 

However, Rabbi Hillel’s position is discussed twice on the page. The second discussion has largely been overlooked, but it may offer valuable insight. Here it is:

:אמר רב גידל אמר רב

.עתידין ישראל דאכלי שני משיח

:אמר רב יוסף

?!פשיטא 

?!ואלא מאן אכיל להו?! חילק ובילק אכלי להו

:לאפוקי מדרבי הילל, דאמר 

.אין משיח לישראל, שכבר אכלוהו בימי חזקיה

Said Rabbi Gidal said Rav:

In the future the Jews will consume the years of the Messiah (i.e. there will be plenty).

Said Rav Yosef:

Peshitta (=This is too obvious to bother saying!?) 

Who would consume them instead – Hillock and Bulloch!?

Rather it is to exclude Rabbi Hillel’s statement that 

“There is no Messiah for Israel, as they already consumed him in the time of Chizkiyah.”

OCF Fellow Shabbos Kestenbaum suggested that a great deal may depend on whether Rav Yosef only asked the question on Rabbi Gidal, or also provided the answer. If Rav Yosef concluded that Rabbi Gidal’s statement was too obvious, that would mean that Rabbi Hillel’s statement was not even a remote possibility. However, if Rav Yosef concluded that Rabbi Gidal intended to exclude Rabbi Hillel, that would mean that even he held that Rabbi Hillel’s position remained part of the tradition.

Which is it? The term peshitta occurs 679 times in the Talmud, often to ask this sort of question. However, there are at most 4 cases in which the question is clearly asked by a named Amora rather than by the anonymous Talmudic narrator. (On Taanit 12b, Bava Batra 38b, and Chullin 67b it is put in the name of an Amora as part of a reconstructed alternate version = איכא דאמרי). Of those four, the best parallel is Eiruvin 29b – and the parallel version on Makkot 3b leaves out the word peshitta.  On this basis, it seems to me most likely that the peshitta question is the Talmud’s reconstruction and that Rav Yosef gave the answer, implying that even Rav Yosef thought that Rabbi Hillel’s position was not beyond the pale. Moreover, even if we decide that Rav Yosef only asked the question, we would still learn from here that the anonymous Talmud disagreed with him and thought that Rabbi Hillel was not beyond the pale.

The upshot is that one cannot find clear Talmudic evidence that Rabbi Hillel’s position is unusually wrong; it’s just that by normal halakhic canons, we would rule against it. The question then is whether Chatam Sofer is correct that disputes about ideas, or in this case disputes about what will happen in the future, can be decided halakhically in the same way as disputes about the law.

My sense is that halakhah is the wrong modality here. A legal decision can be binding, even if it is in intellectual error, because upholding legal authority is a value in itself. Following an intellectually wrong legal position does not mean doing the wrong thing; it means that there is no ideal option, so one has to choose between two values. But believing an intellectually wrong position – there’s no other value there. So it makes no sense to subject ideas to halakhic process unless one believes that the halakhic process is infallible, which would contradict all of Masekhet Horayot, not to mention Sefer Vayikra. 

However, if upholding intellectual authority is a value, the law might require one to say that one believed something.  Furthermore, ideas and beliefs can be crucial elements of communal identity. One can then argue that prohibitions such as “Do not separate oneself from the community” similarly forbid making statements that contradict those ideas and beliefs.

One can certainly argue that belief in the “face” option is a crucial element of Modern Orthodox communal identity, and increasingly part of Orthodox identity generally. Would it be a good idea to halakhicize that? If not, and especially if not for principled reasons such as commitment to maximizing intellectual freedom within Torah, (how) should we establish communal boundaries on beliefs and values?

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October 9, 2020 · 2:58 pm

May One Eat in a Sukkah on Simchat Torah?

by Rabbi Aryeh Klapper

On Talmud Rosh Hashanah 28b, Abbayay asks Rava with incredulity: “If what you say is true, then someone who slept in a sukkah on the eighth day would receive lashes (for violating bal tosif/DO NOT ADD)?!” Rava responds that one only violates bal tosif beyond the time of the mitzvah if one intends to fulfill the mitzvah. The halakhic consensus follows this dialogue. It therefore seems that one cannot violate bal tosif by eating in a sukkah on Shemini Atzeret or Simchat Torah, which are not the time of the mitzvah, unless one is deliberately eating for the sake of fulfilling the mitzvah.

However, Raavyah Megillah 562 offers a close reading that qualifies this conclusion both leniently and stringently. 

On the lenient side, he argues that there can be no issue at all regarding eating. The fact that we do not make the mitzvah-blessing when eating in the sukkah on Shemini Atzeret demonstrates that we are not extending Sukkot. That’s why Abbayay’s challenge referred to sleeping rather than eating. 

On the stringent side, he suggests that Rava’s limits apply only to lashes, but sleeping in the sukkah on Shemini Atzeret may still constitute a non-punishable Biblical violation of bal tosif. However, Mordekhai (Sukkah 764) reports that Raavyah meant only a Rabbinic prohibition of “appearing to violate bal tosif.”

Sefer Agudah (Sukkah 4:43) cites a position that limits this lesser violation to Israel. In the Diaspora, one may/must sleep in the Sukkah on Shemini Atzeret just as one may/must eat there.

The position cited by Agudah points to an essential difficulty with Raavyah. In fact, we do eat in the sukkah on Shemini Atzeret for the sake of the mitzvah, in case it is really the seventh day of Sukkot – so why doesn’t this violate bal tosif? The easy solution is that the Rabbis imposed this obligation on us, and Rabbinic obligations are by definition not bal tosif, but Raavyah rejects this approach. Instead, he argues that the purpose of the 2nd day of yom tov generally is only to avoid possible Biblical prohibitions of forbidden labor. It should not apply at all to Shemini Atzeret, which is more stringent than Chol HaMoed Sukkot! The only reason we allow any entry to the sukkah on Shemini Atzeret is because eating without a berakhah of leisheiv basukkah demonstrates that we’re only doing it on the off chance that this really is its time, not because we are extending its time. (Reshimot Shiurim (Sukkah 48a) reports a similar argument from Rav Soloveitchik, but not within Raavyah.)

Regardless, it seems clear that for Raavyah, eating in the sukkah on Simchat Torah is absolutely permitted; the only possible issue is sleeping in the sukkah.

Raavyah points to Mishnah and Talmud Sukkah 48a for possible solutions to the sleeping issue. The Mishnah there states that on the afternoon of the seventh day of Sukkot, one should remove one’s utensils from the Sukkah. The Talmud asks: What should one do if one has no place to remove them to? and offers a series of options. Raavyah apparently understands both the Mishnah and the Talmud as providing ways to demonstrate that sleeping in the Sukkah is not intended to fulfill the mitzvah, and thus of avoiding the appearance of bal tosif.

However, the language of the Mishnah does not support Raavyah’s reading. The Mishnah states that one should remove the utensils “for the sake of the honor of the last day of Chag,” which in context seems to refer to Shemini Atzeret.  It seems difficult to relate this language to bal tosif.

Rambam (Hilkhot Sukkah 6:11-14) accordingly understands the Mishnah as telling us how to prepare for Shemini Atzeret, not how to avoid bal tosif. He reads the Talmud’s options as serving the same purpose. If removing one’s utensils is impractical, one finds other ways of indicating that one is done with the Sukkah, such as putting objects in it that may interfere with fulfilling the mitzvah.

The obvious problem with Rambam’s approach is that “being done with the Sukkah” is not the same thing as “preparing for Shemini Atzeret.” The Mishnah’s case involved bringing the utensils from the sukkah back to the house, thus preparing for the Yom Tov meal. The Talmud’s options, all of which make the Sukkah unusable or unpleasant, have nothing to with preparing for yom tov.

Reshimot Shiurim notes a tradition that the Vilna Gaon cited our sugya as the explanation for his customs of making havdalah at the end of Pesach on beer, of eating chadash on Chol HaMoed Pesach, and for the halakhah that havdalah after Shabbat is made on a flame. The Gaon apparently held that there is a halakhic principle of marking the end-times of mitzvot. It seems likely that he was following Rambam. Moreover, this approach may enable us to understand the Mishnah literally as requiring the utensils to be moved for the sake of honoring “the last day of chag.”

If we understand the Rambam this way, there is no hint here that any sukkah activities on Shemini Atzeret or Simchat Torah could run afoul of bal tosif. Perhaps Rambam held, like Raavyah, that not making the berakhah of leisheiv basukkah when eating was obviously sufficient to resolve such issues.

Rashi offers a radically different view of the sugya. He understands the gemara’s question “what if he has no place to remove the utensils to” as meaning “what if he has no place other than the sukkah to eat in?” In other words, the Mishnah assumes that one will eat indoors on Shemini Atzeret, and has no relevance to bal tosif; but the Talmud assumes that eating in the Sukkah on Shemini Atzeret would violate some degree of bal tosif if its solutions are not used.

Rashi’s reading is difficult for many reasons. The simplest one is this: he must understand all the Talmud’s proposed solutions as being implemented while one is eating the yom tov meal of Shemini Atzeret or Simchat Torah in the Sukkah. The problem is that these solutions make eating in the Sukkah dangerous (e.g. introducing a flame into a tiny sukkah), uncomfortable (e.g. making the sukkah hot or crowded), or unappetizing (e.g. leaving used dishes uncleared). How can it be appropriate to use such solutions with regard to yom tov meals?

Tur understands the sugya the way Rashi does, but Mechaber carefully adapts his language to conform to Rambam rather than Rashi. So we might argue that standard halakhah should believe that eating in the sukkah on Shemini Atzeret (or Simchat Torah in the diaspora) is not a problem of bal tosif at all. The question is only whether, if one is planning to eat in the Sukkah, one should find some other way of marking the end of the obligation of sukkah. This could probably be done by adopting the Talmudic option that does not require discomfort, namely invalidating a symbolic 4×4 handsbreadth section of the Sukkah. SBM alum Rabbi Shlomo Brody notes that this can be done by putting a tablecloth over a section of the skhakh.  

Note that some understand this Talmudic option as requiring invalidation of the entire sukkah, and Rashi’s language supports that reading. However, Tosafot note that the measurement of 4×4 has no bearing on the invalidation of skhakh – the relevant measurement is 3×3. One might suggest that it refers to invalidating the wall of a minimum-size 7×7 sukkah by removing a majority, but Rashi explicitly rejects limiting its application to that case. Therefore, I suggest that Rashi as well requires only a symbolic rather than an actual invalidation of the sukkah. This also seems reasonable because Rashi clearly identifies the issue as the appearance of bal tosif rather than actual bal tosif.

What emerges as practical halakhah from the rishonim through the Shulchan Arukh, then, is that a symbolic invalidation is preferred, but that if it is forgotten or for some reason impractical, one may eat in the sukkah anyway.

However, R. Yoel Sirkes (BaCH OC 666) raises a new challenge. He suggests that in earlier generations there were two markers that eating in the sukkah on Shemini Atzeret was different: the absence of the berakhah and the fact that we were not sleeping in the sukkah. He notes that Rashi understood the Talmud as raising the issue of bal tosif regarding eating only in a case where one had no place to remove one’s utensils and bedding, and therefore would also have to sleep in the sukkah. It follows that in a time and place where people do not sleep in the sukkah during Sukkot, so that not sleeping in the sukkah does not differentiate Shemini Atzeret from Sukkot, the issue of bal tosif may reemerge according to Rambam, and maybe even according to Raavyah.

In response, I note that Tzitz Eliezer 19:54 addresses the question of whether a shul can provide a kiddush in its sukkah on Simchat Torah. One element of his response is that the concern is lest others mistakenly perceive what is happening as bal tosif, and there is a general principle that we do not worry about such suspicions when dealing with a halakhically observant multitude. It seems to me that a similar logic applies to our case, where there is both a generally known non-mitzvah reason for eating in the sukkah, namely the pandemic, and also various public halakhic rulings acknowledging this. So perhaps in our place and time, there is no concern of appearing to violate bal tosif at all.

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October 2, 2020 · 1:39 pm

Homefulness: Being in a Sukkah State of Mind

by Rabbi Aryeh Klapper

Vayikra 23:42 contains two commands to be yoshev in sukkahs on Sukkot. Yoshev can mean anything from sitting down to establishing permanent domicile, and Mishnah Sukkah 27a unsurprisingly records a dispute between Rabbi Eliezer and the Sages regarding its meaning here. Rabbi Eliezer requires eating two meals in the sukkah each day of the holiday, one at night and one during the day, whereas the Sages say that there is no fixed obligation to eat in the Sukkah other than the first night.

Talmud Sukkah contends that both positions understand yoshev as mandating “something analogous to dar(=dwelling in).” Rabbi Eliezer interpreted this to require using the Sukkah in all the ways a house is ordinarily used.  The Sages, however, argue that “dwelling in” cannot be captured by performing a fixed set of activities such as eating meals. To “dwell” somewhere entails the freedom to choose whether to eat there, or not.   

ROSH to Berakhot 49b argues that the Sages’ position generates a paradox. They claim that eating in the Sukkah from the first morning on is purely optional; but isn’t there an obligation to eat a formal meal on Yom Tov, meaning a meal centered on bread? And isn’t there a prohibition against eating bread outside the Sukkah? So in fact one must eat at least the second Yom Tov meal in the Sukkah!?

ROSH squares the circle as follows. Mishnah Sukkah 28b states: “If rain falls, at what point can one evacuate the Sukkah? When it spoils a medium-thick stew.” The Sages’ position that eating in the Sukkah is optional can be sustained in the case of such a rain, as people would then eat even their formal, bread-centered Yom Tov meals outside the Sukkah. 

ROSH hastens to add that one must nonetheless eat at least an olivesize inside the Sukkah on the first night, even if it never stops raining, even though one is eating the full Yom Tov meal elsewhere. 

Why should this be so? The Sages in Mishnah Sukkah 27a concede that one is obligated to eat in the Sukkah on the first night. Talmud Sukkah 27a explains that even though no such obligation is generated directly by the obligation to “dwell” in the Sukkah, a gezeirah shavah connects this mitzvah to the obligation to eat matzah on the first night of Pesach. But according to Talmud Sukkah 28b, the exemption in case of rain is grounded in the idea that you need not “dwell” in a Sukkah more obstinately than you would in your house. If you would leave your house to eat or sleep because of the rain, you can leave your sukkah as well. Meiri explains that since this exemption is rooted in the concept of “dwelling,” it does not apply to the first night’s obligation, which is not derived from the concept of dwelling. (Meiri’s explanation can support a position, which he may attribute to the Sages of Lunel,  that requires eating not only an olivesize but rather the entire meal in the rainy Sukkah, and sleeping there as well.)

Here we must note that ROSH did not use the language of Mishnah Sukkah 28b to describe the exemption in case of rain. Rather, he used the phrase mitztaer mipnei yeridat geshamim, suffering because rain is falling. His use of mitztaer seems a deliberate allusion to Rava’s statement (Sukkah 26a and Avodah Zarah 3b; also Sukkah 25b in the name of Rav) that a mitztaer, such as one who can’t endure an odor, is exempt from the Sukkah. The exemption in case of rain is therefore just an instance of Rava’s category of mitztaer. It follows that all exemptions for “suffering” entail permission to eat even formal bread-centered meals outside the Sukkah. The standard for “suffering” is derived from the principle that one need not “dwell” in one’s Sukkah more obstinately than one dwells in one’s house.

Here I want to raise a question: Why should the standard for exemption from the mitzvah of Sukkah be different, and separately derived, than the standard for exemption from all other positive commandments? Why shouldn’t it be the same as that for shofar, or matzah?  

I suggest that the term “exemption” here is actually a misnomer. Let me explain.

Talmud Sukkah 27b records another dispute between Rabbi Eliezer and the Sages. Rabbi Eliezer holds that one cannot fulfill one’s obligation using another person’s Sukkah. The Sages, however, declare that “All Israel could appropriately sit in a single Sukkah.”

The Sages’ position appears to contradict the principle that one must “dwell” in the Sukkah. Can one dwell in someone else’s house? For example, beraitot on Sukkah 28b requires bringing your fine utensils and furniture out to the Sukkah. Presumably you need not bring them along to a friend’s Sukkah. But then how can you fulfill your obligation there?

We can square this circle on the basis of Talmud Sukkah 26a. A beraita states that orchard and field guards are exempt both day and night from Sukkah. The Talmud asks: Why not require them to build sukkahs in the orchards and fields? Abbayay’s response is that this too is derived from “dwelling.” Rashi explains that “dwelling” requires one’s fine utensils and furniture, and it would be too much bother to bring them out the fields and orchards, so he is exempt. But how is this different from a friend’s sukkah?

My answer is that the orchard guard is not really “exempt.” Rather, the guard is living in his sukkah exactly the way he would in his year-round house. He would leave that house for the harvest, but that would not mean he wasn’t living there – living in a house doesn’t mean you always have to be there, just as the Sages above contended that it doesn’t mean you have to eat two meals a day there. 

In other words, the fundamental mitzvah of sukkah (after the first night) is not to do anything specific in a sukkah, but rather just to live there. The Sages’ explain that one can live in a sukkah even though one never eats in it. Abbayay goes them one better: one can live in a sukkah even if one never goes into it at all, for example if one is camping. And then he goes them two better: one can live in an imaginary sukkah. Because if one will be in the fields all seven days, why not eat in a friend’s sukkah the first night, and not bother building one’s own? 

The idea of living in an imaginary Sukkah may seem strange, especially to readers who are not Halakhic Persons.  The laws of techumin may provide a useful analogy. One may travel on Shabbat a distance of two thousand amot in any direction from where one is when Shabbat falls, or two thousand amot from one’s home – because home is where your mind is.

Here is a more direct illustration. The beraitot on Sukkah 20b that requires your fine utensils as part of “dwelling” also require “eating, drinking, pacing, and learning” in the Sukkah. The 9th century Gaon R. Natronai was asked: Must a community build a sukkah for its synagogue and beit midrash? He replied: One does not live in a synagogue, so there is no need for a sukkah to replace it.  People can spend their entire day davening and learning in a solid building with a waterproof roof, and that poses no problem at all halakhically, because that’s not where they live. They live in their Sukkah. 

Rav Natronai notes with approval that some communities build sukkahs in the synagogue courtyard for guests. However, he objects to having locals use those sukkahs.  

Over time, for reasons ranging from weather to security to architecture to economics, building private sukkahs became less common, and synagogue sukkahs became the only option for many locals. That was the case for me growing up in Washington Heights. 

Now community sukkahs are never large enough for everyone to sleep in simultaneously, and often, they are not big enough for everyone to eat meals in, even in shifts. So in some medieval communities people just sat for a moment, made the blessing leisheiv basukkah, and left. Eventually, the general custom required eating, but not a full meal; and some communities required a contribution to the sukkah building fund.        

However, Rabbi Eliyahu Chazan, Chief Rabbi of Alexandria from 1889 – 1908, in Neveh Shalom 637:2 defended his community’s practice of “not building a sukkah all of Sukkot, and all of Sukkot eating outside the Sukkah, rather just making kiddush on the first night in someone’s sukkah, or listening to someone make kiddush in their sukkah, and leaving,” on the ground that building private sukkahs had become impossible for many.

The underlying principle was always the same. A practical exemption from all but the most minimal requirements of sukkah does not mean to exclude performing the mitzvah. Even if one is unable to eat, sleep, learn, etc. in one’s own Sukkah, one can still live there, as if one is merely camping elsewhere, or waiting for the hazmat team to disinfect one’s house. Perhaps the most fascinating formulation is that of the 16th century Turkish Responsa Zkan Aharon 165: “Those who have the custom of making a sukkah in the synagogue (courtyard) and having everyone eat an olivesize there, because they are poor and not everyone has a sukkah  – they did this as a mere remembrance (of the actual mitzvah), and the Torah (primarily) requires the heart.”

ADDENDUM

The essay above hopefully holds interest merely as exposition. But I do think that it has implications for our sukkah-practice during the pandemic. 

Our communal sukkah-practice is focused on eating, rather than on other components of living in the Sukkah that the Talmud sees as coequal, such as just spending time, or learning. But eating may be very risky in a communal sukkah; it requires unmasking, and certainly eating full meals requires longer exposures, and makes it much harder to arrange a schedule with little overlap. The margins for error shrink, and people get sloppy when they’re rushed. 

The truth is that eating may be less “living somewhere,” in an age where eating out is so normal, than spending five quiet minutes just taking in the space.   

I’m not prepared here to make general statements about health exemptions from eating in the Sukkah, and what that means for what one can eat elsewhere. But I hope the framework I set out is helpful for decisors considering such questions, and for communities and individuals establishing their expectations and priorities.

A homiletic note in conclusion: Living in a Sukkah is not homelessness; rather, it means that one has a home, but that the home is inevitably going to vanish. It requires giving real value to the ephemeral without denying its ephemerality. It reminds us that human life is infinitely precious and incredibly fragile. May we act accordingly. 

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