Monthly Archives: April 2021

By Rabbi Aryeh Klapper

Before every class trip to the great world outside, my Modern Orthodox day school teachers warned us “not to make a chillul Hashem” (=desecration of G-d’s Name) by misbehaving. Since we were recognizably Jewish, it followed that the Jewish G-d’s public image was inextricably bound up with our own. Sometimes they were more optimistic and asked us to make a kiddush Hashem, but “first do no harm” was generally the spirit.

I think we understood what was wanted and why. We knew that people judged our parents by our behavior. Many or most of us felt judged as Jews everywhere we went, all the time. This was just a more concentrated form of being on display. We also knew that most or maybe all of us would let the family and religious team down on occasion. But we generally tried hard.

Was this a fair burden to impose on children? Is it really possible for children to make a chillul Hashem?

Rambam Sefer Hamitzvot DON’T #63 declares that the prohibition against chillul Hashem can be divided into three parts. Two of them relate to all Jews in the same way. These universal violations are

1)      transgressing a mitzvah in submission to a religiously motivated thug, and

2)      transgressing a mitzvah with no motive other than to spite G-d.

These cases may seem very different from each other – one involves surrendering to ultimate self-interest, while the whole point of the other is that it involves no self-interest. But the common denominator is that the thug in the first case has exactly the same motive as the subject in the second case. G-d’s Name is desecrated when His will is flouted successfully by someone whose only goal is that it be flouted.

Rambam sets out the third category as follows:

והחלק המיוחד הוא

שיעשה האדם ידוע במעלה והטוב

פעולה אחת

תיראה בעיני ההמון שהוא עבירה

ושאין דמיון הפועל ההוא ראוי לנכבד כמוהו לעשות

אף על פי שיהיה הפועל מותר

הנה הוא חלל את השם.

והוא אמרם (יומא פו א)

היכי דמי חלול השם

כגון אנא דשקילנא בשרא מבי טבחא ולא יהיבנא דמי לאלתר

:רבי פלוני אמר

.כגון אנא דמסגינא ארבע אמות בלא תורה ובלא תפלין

The part that depends on the individual is

when a person who is known for elevation and goodness

does an action that appears in the eyes of the masses to be a transgression

and that an action of that type is not proper for someone as respected as he is to do

even though that action is halakhically permitted

behold he has desecrated the Name.

This is what is intended by their saying (Yoma 86a)

What is a case of chillul Hashem?

Like me, who takes meat from the butcher and doesn’t give him the money immediately.

Rabbi Ploni said:

Like me, who walks four cubits without Torah and without tefillin.

Rabbi Chaim Heller (footnotes to his Hebrew translation of the Sefer Hamitzvot) contends that Rambam regularly leaves names out of his citations, and that “Rabbi Ploni” is just an instance of such anonymization. However, this seems to be the only time Rambam uses “Rabbi Ploni” to substitute for the name of a specific rabbi in a citation.

In the Vilna Talmud, the first example is attributed to Rav, and his phrasing is אי שקילנא, if I were to take meat from a butcher without paying immediately. Many manuscripts leave the subjunctive אי out, as does Rambam, so that presumably was Rambam’s text. Perhaps Rambam thought it would be disrespectful to mention a great rabbi by name when describing him as desecrating the Name. Perhaps that same reason drove a scribe or reciter to insert the subjunctive.

 This approach may help explain the very peculiar section of Talmud that follows Rav’s statement.

Abbayay said:

They only taught Rav’s statement about a land where the butchers don’t dun,

but in a land where the butchers dun – we have nothing against the one who behaves like Rav.

Said Ravina:

And Mata Mechasya is a land where the butchers dun.

The text is very unstable here (the first statement is most likely anonymous rather than by Abbayay, and Rambam almost certainly had a version in which Rav’s statement was specifically about a land where butchers do dun) and commentators have struggled to clarify its meaning. Their basic problem is that Rav has to do something very wrong, in order to desecrate the Name, but not too wrong, or else he would be in violation of lo tonu, the prohibition against unjustly delaying payment. Anyone who would violate lo tonu does not cause a desecration of the Name when they misbehave. The calibration required is very fine.

I suspect there is another basic problem. Is Rav’s statement intended as straightforward halakhah, or does it have an element of humor?

 On Sotah 49b, a beraita teaches that “once Rebbe was dead, humility and fear of sin ceased to be”. But Rav Yosef said to a reciter of that beraita:

לא תיתני ענוה, דאיכא אנא

Do not teach “humility”, as there is me!

Oceans of ink have been spilled to explain how Rav Yosef could have made this statement humbly. Benjamin Franklin, by contrast, recognized that the paradox is inescapable. “There is perhaps no one of our natural passions so hard to subdue as pride. Beat it down, stifle it, mortify it as much as one pleases, it is still alive. Even if I could conceive that I had completely overcome it, I should probably be proud of my humility”. It seems to me likely that Rav Yosef understood this as well, and that his comment included a significant element of self-satire.

Perhaps there is a line from כגון אנא to דאיכא אנא. If Rambam is correct, the third kind of chillul Hashem applies only to renowned scholars. Giving oneself as an example is therefore inherently an act of hubris, and the best way to counteract that is by presenting oneself as actually violating the norm under discussion. “What is an example of chillul Hashem? For example, when I…“

But subsequent generations could not leave that presentation untouched, lest it be taken literally. So they explained that Rav did not actually desecrate the Name; rather, he acted in a manner that would have desecrated the Name in a society with different expectations. Expectations are always variable, so there was likely an element of ruefulness in Rav’s example – perhaps he wished to hold himself to an even higher standard, or worried that his butcher was already doing so. Ravina rushes in to disambiguate further – Mata Mechasya, where Rav lived (according to the Letter of Rav Sherira Gaon, Mata Mechasya = Sura), was the kind of place where Rav’s behavior raised no eyebrows at all.

What about Rabbi Yochanan? He speaks of walking four amot without Torah and tefillin – why would he do that, if that desecrated the Name?

The simplest answer, perhaps found in Rashi, is that Rav Yochanan was old, and no longer capable of maintaining the sort of concentration that people expect of him. He was also not capable of sitting still the entire day. So his reply is a different form of rueful humor – his greatness has led to a situation in which he has no way of avoiding desecrating the Name. Publicly proclaiming his frailty would solve that problem. But is that a cost he should be obligated to bear?

 Rambam in Mishneh Torah (Hilkhot Yesodei HaTorah 5:11) provides more detail:

There are other things also within the category of chillul Hashem

Namely when a person who is great in Torah and famed for his chassidut/piety does things that cause the people to gossip negatively about him,

even though they are not transgressions –

behold he has desecrated the Name.

For example, if he took without paying for his purchase immediately,

assuming that he has the money, and the sellers are dunning, and he insists that they give him credit,

or if he spends too much time in play or eating and drinking with or among ignorami,

or similar things.

In everything, according with the greatness of the sage,

he must be strict with himself and act beyond the line of the law.

The statement “In everything, according to the greatness of the sage” seems to leave children, and perhaps the rest of us, out of the equation entirely. However, R. Yosef David Azulai (“CHIDA”: Shu”T Chayyim Sho’al 2:43) contends that this makes little sense. Whether an action is a chillul Hashem depends on the observer, not the actor. He therefore concludes that:

 It seems obvious that the same is true regarding someone who is reputed in his city to be great

even though he is not actually great, and recognizes this about himself,

nonetheless, since he is considered by the masses to be great – he desecrates the Name.

R. Azulai uses this approach to get Rav out of the humility paradox. Rav thought his public reputation undeserved, but could not deny that it existed. Therefore, using himself as an example of chillul Hashem was not arrogant.

I wonder whether there is a transactional element to the way Rambam conceives of this mitzvah. To violate chillul Hashem, you have to be a person held in great public esteem. Whether you deserve the honor, and whether you want it, are irrelevant. With great kavod comes great responsibility. And also – great public scrutiny, because people both want moral heroes and resist them.

All of Rambam’s examples stay within the Jewish community, though. What are the standards for chillul Hashem outside the community? I think my teachers assumed that all Jews – children, also institutions and states – bear the kind of responsibility outside the community that great sages bear inside it.

The way to avoid that responsibility is to lower expectations. But I think that Rav and Rav Yochanan’s humor can do well for us here. With a certain amount of genuine ambivalence, we should aspire to be the kind of people and nation that is capable of making a chillul Hashem.  

By Rabbi Aryeh Klapper

On Berkahot 19b, Rav Yehuda in the name of Rav states that a person who discovers that their clothing contains shatnez must remove it “even in the marketplace”, meaning even at the cost of public humiliation. The rationale provided is that human wants and needs are irrelevant in the face of Divine commands.

    The Talmud challenges Rav with five Tannaitic rulings in which halakhah is suspended for the sake of human dignity. Each challenge is resolved by distinguishing the cases; human dignity trumps Halakhah Type A but not Halakhah Type B. The result is that Rav’s statement remains legally intact but no longer stands for anything philosophically coherent.        

    In the Vilna edition’s version of this sugya, human dignity trumps rabbinic decrees, Biblical monetary obligations, and passive violation of Biblical obligations. Other versions add or substitute Biblical obligations that do not apply equally to all Jews, or that result from annullable vows. A reasonable holistic understanding perhaps found in Tosafot is that the sugya is intended as a vector – each time a new issue comes up, the goal is to find a way to distinguish it from Rav’s case without disturbing his ruling. The philosophic import may be that G-d chooses to allow human wants and needs to override Divine commands, so that accounting for them becomes the Divine command,  but that we are obligated to recognize that this is neither a necessary nor an unlimited concession. After all, halakhah requires us to sacrifice our lives rather than violate certain commandments!

    Keeping this balance in mind requires us to maintain Rav’s ruling as an Archimedean point, an absolutely fixed position. Nevertheless, it might move.

     Mishnah Kil’ayim 9:1 states אין עראי לכלאים, “there is no temporariness with regard to the prohibition against wearing kil’ayim (=shatnez). The Yerushalmi thereupon reads:

If he was walking in the marketplace and turned out to be wearing shatnez –

two Amoraim (dispute): one says ‘forbidden’, and the other says ‘permitted’.

The one who says ‘forbidden’ – it is a Torah matter;

The one who says permitted – along the lines of what R. Zeira said:

“Great is human dignity in that it pushes the DON’T mitzvah aside for a moment.”

The ‘permitted’ position seems to directly contradict Rav!

    However, this contradiction is easily resolved. A version of the statement attributed by the Yerushalmi to R. Zeira is cited as an anonymous (presumed) beraita in the Bavli, apparently to challenge Rav. However, the challenge is actually a lead-in to Rav Sh’va’s gloss, endorsed by Rav Kehana, that the DON’T in question refers to the prohibition “Do not stray from what they tell you”, which is the source of Rabbinic authority. It seems easy to read this gloss into the Yerushalmi and contend that the Amoraic dispute whether the case of the shatnez discovered in the marketplace refers to Biblically or Rabbinically prohibited shatnez, but both agree with Rav that one must remove Biblically prohibited shatnez at once.

     However, Yerushalmi Berakhot 3:1 (also Nazir 7:1) cannot be explained this way.  

     The first ruling cited in the Bavli to challenge Rav permits a kohen to accompany a mourner returning from a funeral even via a path that involves corpse-tum’ah, which is forbidden to a kohen. The Bavli resolves the challenge by asserting that tum’ah on a road does not refer to an actual grave but rather to a beit hapras, a space from which human remains have been removed but perhaps not fully. A kohen is only Rabbinically forbidden to traverse a beit hapras. The Yerushalmi assumes this interpretation but then states that R. Zeira’s statement authorizes kohanim to accompany the mourner even when that involves a Biblical violation.

     Recall however that some versions of the Talmud, supported by many rishonim, contend that the Bavli also distinguished Biblical obligations that do not apply equally to all Jews from Rav’s ruling. The prime example is the prohibition against becoming tamei via contact with a corpse, which applies only to kohanim. We can reconcile Rav with the Yerushalmi by contending that R. Zeira’s statement refers to Rabbinic prohibitions and to Biblical prohibitions that do not apply equally to all Jews.

     This reconciliation exposes an apparent gap in the Bavli. Rav Kehana defends Rav Sh’va for limiting the beraita “Great is human dignity in that it pushes aside a DON’T in the Torah” to Don’t Stray, and therefore to Rabbinic prohibitions. (Don’t Stray is also the source of the Sanhedrin’s general authority over Biblical halakhah, but in context Rav Sh’va does not mean to imply that one can defy the Sanhedrin for the purpose of sustaining human dignity. Maybe the people in the beit midrash who laughed at him thought that’s what he meant?) But if human dignity also trumps some Biblical obligations, Rav Sh’va’s interpretation seems unnecessarily narrow. So while the Bavli doesn’t say this outright, perhaps by the end of the sugya Rav Sh’va’s interpretation is inoperative.

     Reading the Bavli this way opens further possibilities. The fourth challenge in the Bavli to Rav is from the ruling that an ‘elder’ need not trouble to pick up and then return a lost object that is beneath his or her dignity, despite the Biblical prohibition You must not look away. The solution is that the case of lost objects can only be generalized to monetary prohibitions, and not as far as Rav’s case of shaatnez. The fifth challenge, from the obligation for even a nazir and kohen gadol to bury someone who dies without relatives, is resolved by distinguishing between passive and active violations. Many commentators note that not picking up a lost object is also a passive violation. This means that the distinction between monetary and ritual obligations is no longer necessary to defend Rav. Perhaps that means it too is inoperative.

At least at first glance, this would be a stringency. The most straightforward understanding of the Talmud is that human dignity overrides all monetary prohibitions, whether active or passive. This outcome seems practically implausible, and various methods have been proposed for evading it. But saying that the monetary/ritual distinction has been cast aside may be the simplest.

We can decide instead that reconciling Rav and the Yerushalmi in Berakhot/Nazir is unnecessary. The Yerushalmi believes that human dignity can override even active violations, whereas the Bavli maintains steadfast allegiance to Rav, and the Bavli’s allegiance is sufficient to make our own halakhic position immovable.

     Please note that even this extreme reading of the Yerushalmi would not open a free-for-all in which every individual could decide for themselves what violated their dignity, and in which even the slightest violation of human dignity would justify violating even the most severe Biblical prohibitions. What it would do instead is stimulate the development of a carefully calibrated and nuanced system. For example, halakhists working from the Bavli have already distinguished between major and minor dignity violations, or between the dignity of many people and that of individuals (this is also supported by some texts of the Yerushalmi), or between temporary and long-term suspension of halakhah (also supported by the Yerushalmi ).  They have also specified the conditions under which an ‘elder’ can look away from a lost object, and distinguished between cases where the relevant human dignity cost is accidental or essential to the halakhah. For example, the halakhah sometimes mandates public humiliation as a punishment for sin! All these distinctions and regulations and more would be needed in an alternate halakhic universe based on the Yerushalmi’s rejection of Rav.

     What doesn’t seem possible is to read the Bavli as rejecting Rav. Nonetheless, at least one medieval reader appears to have done so. I’ll provide the text as found in the Peirushim uPsakim shel Rabbeinu Avigdor HaTzarfati # 187 and also in the Tosafist anthology Moshav Zekeinim to Vayikra 19:19, with my translation. (Note: There seems to be great uncertainty or even controversy about the identity of the relevant R. Avigdor.)

(ובגד כלאים שעטנז לא יעלה עליך)

:מכאן תנן

.אין עראי לכלאים

ובירושלמי פליגי אמוראי אי דרבנן הוא או דאורייתא

–אם אדם הבין בשוק שהבגד שהוא לבוש יש בו כלאים

,פושטו מיד למ”ד דאורייתא

.ולמ”ד דרבנן – עד שיגיע לביתו

וי”מ

,דכ”ע אית להו דאורייתא

.ומ”מ משום כבוד הבריות דוחה, וימתין עד שיגיע לביתו

ואי ק”ק

!? דהא אמרינן דגדול כבוד הבריות שדוחה לא תעשה – ה”מ בשב ואל תעשה, אבל בקום ועשה – לא

וי”ל

,דה”מ כבוד המת

אבל כבוד הבריות דחיים – דוחה ואפילו בקום ועשה

.וכן פר”ץ

 “A garment of mixed kinds shaatnez must not go up on you” –

Based on this verse a Mishnah (Kil’ayim 9:2) teaches:

There is no (leniency of) temporariness regarding (the wearing of) kil’ayim.

And in the Yerushalmi, Amoraim argue whether this (ban on momentary wearing) is Rabbinic or Biblical.

if a person realized while in the marketplace that the garment they are wearing contains kil’ayim –

they must remove it immediately according to the opinion that it is Biblical,

but according to the opinion that it is Rabbinic – (they may wait) until reaching home.

But some interpret

that all opinions hold that it is deoraita,

but regardless, because of human dignity it is pushed aside, and they may wait until reaching home.

But if you find this (interpretation) a little difficult

because we say that “Great is human dignity in that it pushes aside a DON’T”–

applies only when in a passive case, but not in an active case?!

One can respond:

That is only true with regard to the dignity of the dead,

but the dignity of living human beings – pushes (Biblical prohibitions) aside even actively.

So interpreted R.Z. (Note: I don’t know to whom this refers.)

The “Some interpret”, and the mysterious R.Z. quote the Bavli’s final distinction between active and passive, but then claim that it applies only to the dignity of the dead. But that distinction was introduced to explain why human dignity does not trump halakhah in the case of Rav, who is dealing with the honor of the living!? In fact, Rav and the Yerushalmi seem to be discussing the same case, so how can one even imagine reconciling them?! I look forward very much to your creative explanations.

by Rabbi Aryeh Klapper

Many rabbinic texts cannot be categorized neatly as either “Halakhah” and “Aggada”. Some are hybrids, such as legal analyses that treat fantastical narratives as formal legal precedents, or narratives whose plot revolves around a legal claim or dispute. Others live at the margins, incorporating only superficial characteristics of the other basic type, or deliberately establishing and then flouting expectations.

None of this means that the underlying binary is useless or false. Deliberately flouting expectations works artistically only because there are expectations. As T.S. Eliot argued, creativity in the absence of tradition is meaningless meandering maunder.

“Purely hypothetical law” seems likely to be one of those marginal types. The Torah discusses the law of the bayit hamenuga (‘leprous’ house) in the same apparent tone and texture as the leprous person and the leprous garment. The Sifra extracts legal detail from the relevant Torah text (Vayikra 14:33-57) in a manner that seems fully compatible with its analysis of the texts relating to the other forms of tzora’at, and Tractate Negaim devotes two chapters that seem pretty typical of Mishnah to the bayit hamenuga. So when a beraita on Sanhedrin 71a (also found in Tosefta Negaim 6:1) declares that “the law of the bayit hamenuga never was and never will be, and why was it written? Expound and receive reward”, it certainly flouts expectations. Should we classify the standard-form legal analysis of a purely hypothetical law as aggada?

Let’s put this discussion in a context where the boundary between halakhah and aggada seems clear.

Vayikra 14:34-35 reads:

כִּ֤י תָבֹ֙אוּ֙ אֶל־אֶ֣רֶץ כְּנַ֔עַן אֲשֶׁ֥ר אֲנִ֛י נֹתֵ֥ן לָכֶ֖ם לַאֲחֻזָּ֑ה

:וְנָתַתִּי֙ נֶ֣גַע צָרַ֔עַת בְּבֵ֖ית אֶ֥רֶץ אֲחֻזַּתְכֶֽם

:וּבָא֙ אֲשֶׁר־ל֣וֹ הַבַּ֔יִת וְהִגִּ֥יד לַכֹּהֵ֖ן לֵאמֹ֑ר

:”כְּנֶ֕גַע נִרְאָ֥ה לִ֖י בַּבָּֽיִת”

When you arrive in Canaan, which I am giving you as a homestead

I will place a tzora’at plague in the house of the land of your homestead.

The one to whom the house belongs will come, and say to the priest as follows:

“Something like a plague-stain appears to me to be in the house”.

Several elements of this verse seem anomalous. “House” is singular – one would expect ‘houses’.  One would also expect “house in the land” rather than “of” the land, which seems to identify the house with the land. Finally, why is “homestead” repeated?

Vayikra Rabbah 17:7 provides a beautiful and comprehensive answer.

…בבית ארץ אחוזתכם – זה בהמ”ק

ובא אשר לו הבית – זה הקדוש ברוך הוא

In the house of the land of your homestead – this refers to the Holy Temple…

The one to whom the house belongs will come – this refers to the Holy Blessed One…

The bayit hamenuga is an allegory for G-d’s awareness that He will eventually feel compelled to destroy His own house, when it is irretrievably defiled by idolatry. The destruction of the Temple is also a metonymy for exile =the loss of the Jewish homestead.

Talmud Yoma 11b – 12a offers a very different approach.

:וְהָתַנְיָא…

?יָכוֹל יִהְיוּ בָּתֵּי כְנֵסִיּוֹת וּבָתֵּי מִדְרָשׁוֹת מִטַּמְּאִין בִּנְגָעִים

—תַּלְמוּד לוֹמַר: וּבָא אֲשֶׁר לוֹ הַבַּיִת

.מִי שֶׁמְיוּחָד לוֹ, יָצְאוּ אֵלּוּ שֶׁאֵין מְיוּחָדִין לו

:והתניא…

–אחזתכם

.אחזתכם מטמאה בנגעים, ואין ירושלים מטמאה בנגעים

.אמר רבי יהודה: אני לא שמעתי אלא מקום מקדש בלבד

…הא בתי כנסיות ובתי מדרשות – מטמאין בנגעים

:אימא

.אמר רבי יהודה: אני לא שמעתי אלא מקום מקודש בלבד

?במאי קא מיפלגי

…תנא קמא סבר: ירושלים לא נתחלקה לשבטים; ורבי יהודה סבר: ירושלים נתחלקה לשבטים

…But we learned in a beraita:

It would have been possible that synagogues and study halls were subject to house-tzora’at –

so Scripture teaches: The one to whom the house belongs will come –

meaning one that is reserved to someone, excluding these that are not reserved to someone.

…But we learned in a beraita:

of your homestead –

your homestead is subject to house-tzora’at, but Jerusalem is not subject to house-tzora’at.

Said Rabbi Yehudah:

I only heard that about the place of the Holy Temple.

This implies that synagogues and study halls are subject to house-tzora’at!?

Emend Rabbi Yehuda’s statement to read:

‘Said Rabbi Yehuda: I only heard this about sanctified places.’

What is the basis of their disagreement?

The initial position in the beraita held that Jerusalem was not divided (into homesteads) among the tribes;

Rabbi Yehudah held that Jerusalem was divided among the tribes.

The upshot is that according to all legal positions, the Holy Temple is not subject to house-tzora’at, whether because it was never assigned as a homestead to any tribe, or because house-tzora’at does not apply to buildings dedicated to Divine purposes. Talmud Yoma is thus diametrically opposed to the allegory in Vayikra Rabbah. The one building we can be absolutely certain cannot become a bayit hamenuga is the Temple.

We might suggest that Talmud Yoma is engaged in halakhah, whereas Vayikra Rabbah is engaged in aggada. A common technique of aggada is what I call “willing suspension of halakhic disbelief”- one is allowed to create a literary world in which one halakhic law in order to make an aggadic narrative work. This would resolve the contradiction. But this technique may be legitimate only when it plays off established halakhah. Is Talmud Yoma really engaged in halakhah if the bayit hamenuga is already a legal fantasy?

 Here we must note that the position that the bayit hamenuga “never happened and never will” is challenged in both the Tosefta and the Talmud by eyewitness reports of locations marked as the remains of such houses. Perhaps Vayikra Rabbah assumes that the bayit hamenuga has been and will be. Or perhaps those who regard the entire category as hypothetical see themselves as even freer to offer allegories that contradict the law. Or more radically, they see the category as beyond the reach of law.

The problem with this last proposal is that Talmud Sanhedrin identifies the “never was and never will be” camp with the most restrictive position in a halakhic dispute about the physical appearance of the plague-stain. The Tosefta may not agree with this connection, and neither Sifri nor the Mishnah mention the possibility that the bayit hamenuga is purely hypothetical. But Talmud Sanhedrin seems to view the author of this position as engaged in the same kind of legal analysis and taking the same kind of legal positions as his interlocutors. In other words, the Talmud indicates that the authors of this position see themselves as engaged in the intellectual discipline of halakhah. Many other Talmudic discussions also use legal positions taken with regard to bayit hamenuga as precedent for discussions of legal areas. For example, houses that are excluded from bayit hamenuga are presumptively also excluded from the obligation of placing a mezuzah.

 I will venture to say that, in the hope that someone will prove me wrong, that there is nothing whatsoever that makes discussions of the bayit hamenuga distinctive within Torah, in either form or content, other than the claim that “it never was and never will be”.

Until I am proven wrong, I see two basic options.

One is to say that the hypotheticality position is a Masoretic epiphenomenon, an interesting footnote to halakhic history mentioned and considered only once in the Babylonian Talmud (and not at all in the Yerushalmi) and then largely ignored until the publication of Ish HaHalakhah.

The other is to say, along with the Ish HaHalakhah, that the intellectual discipline of halakhah is not essentially related to halakhic practice. A separate pragmatic discipline of psak covers that. This position argues that we should not expect the fact that the law is purely hypothetical to have any practical effect on the way we study it.

The motto of the Center for Modern Torah Leadership is “Taking Responsibility for Torah”. It was formulated to oppose the claim that halakhah can be discussed in the beit midrash without considering its real-world consequences. Those consequences exist, so what justifies us in ignoring them? So if there are only two options, I would have to choose the first.

There might however be hybrid options. For example, we might say that because some poskim use the bayit hamenuga as legal precedent in other areas, even those who hold that it is purely hypothetical have an ethical responsibility to consider the practical consequences of their positions. Halakhic scholars must always consider not only the utopian world where everyone accepts their psak, but also what will happen if not everyone paskens like them, for example if their correct ruling that a woman is no longer married nonetheless leads a significant part of the community to treat her subsequent children as mamzerim.

This hybrid changes nothing directly in practice. But maybe there is a general value and effect in recognizing that even the most practically necessary binaries are not full descriptions of reality, and conversely, that sometimes it is practically necessary to reduce exquisitely nuanced realities to crude binaries.

by Rabbi Aryeh Klapper

The Torah’s narrative of the eight days during which Aharon and his sons were invested as kohanim (the miluim period) begins in Parashat Tetzaveh, goes on hiatus until the end of Parashat Tzav, and sort of concludes in Parashat Shemini, with an epilogue in Parashat Acharei Mot. This scattered trail makes it very hard to reconstruct exactly what happened when.

We can say with some confidence that a moral of the story is that kohanim have a dangerous job. In Vayikra 8:35, Mosheh tells Aharon and his sons not to leave the entrance to the Ohel Moed for seven days “and that way you won’t die”; they all survive that period, only for Nadav and Avihu to die on the eighth day. In 10:7, Mosheh warns them not to leave the entrance that day to mourn “lest you die.”  In 10:9, God tells Aharon directly of a prohibition against consuming alcohol before entering Ohel Moed “and that way you won’t die”; and in 16:2 G-d tells Mosheh to tell Aharon not to come at will into the Kodesh “and that way he won’t die.”

Given the deadly peril awaiting a misstep, it seems only fair for Aharon to have a supremely detailed manual telling him exactly what to do in every circumstance. He should also be able to ask Mosheh for a ‘lifeline’ whenever a situation not covered by the manual arises.  

It’s therefore astonishing that Moshe seems not to have given Aharon instructions about whether to eat sacrifices while in the period of aninut, when relatives (such as Nadav and Avihu) have died but are not yet buried. It’s even more astonishing that this turns out to be a good thing, because Moshe Rabbeinu’s instructions would have been wrong. 

Mosheh expresses impatience/anger/frustration (10:16-18) that one of the chatat sacrifices has been burnt rather than eaten. But when Aharon questions whether G-d would have been pleased had he acted differently, Mosheh seems to acknowledge that Aharon acted correctly (10:19-20).

וַיְדַבֵּ֨ר אַהֲרֹ֜ן אֶל־מֹשֶׁ֗ה

הֵ֣ן הַ֠יּוֹם הִקְרִ֨יבוּ אֶת־חַטָּאתָ֤ם וְאֶת־עֹֽלָתָם֙ לִפְנֵ֣י יְקֹוָ֔ק

וַתִּקְרֶ֥אנָה אֹתִ֖י כָּאֵ֑לֶּה

וְאָכַ֤לְתִּי חַטָּאת֙ הַיּ֔וֹם

:הַיִּיטַ֖ב בְּעֵינֵ֥י יְקֹוָֽק

וַיִּשְׁמַ֣ע מֹשֶׁ֔ה 

:וַיִּיטַ֖ב בְּעֵינָֽיו

Aharon spoke to Mosheh:

Yea, today they have sacrificed their chatat-sacrifice and their wholly-burnt sacrifice before Hashem

and these things happened to me

Had I eaten chatat today

would that have been good in Hashem’s eyes?

Mosheh heard

and it was good in his eyes.

How did Aharon reach his conclusion? Chazal reconstruct a sophisticated halakhic rationale. A kohen in aninut is generally forbidden to eat sacrifices. However, Mosheh had instituted a special decree (hora’at sha’ah) mandating them to eat the minchah. Did that decree apply as well to the relevant chatat? It turns out that three different chatats were brought, two of them for the special circumstance of the miluim, and one because the day was Rosh Chodesh. Aharon understood that the special decree permitting eating sacrifices while in aninut applied only to the special-circumstance chatats, whereas Mosheh mistakenly thought that it applied throughout.     

This reconstruction plainly assumes many details that are not explicit in the text. Even granting them all, a new problem arises. In 10:12-15, Mosheh instructs Aharon, along with Elazar and Itamar “his remaining sons,” to eat the leftovers of the minchah offering as well as the shok haterumah and chazeih hatenufah from the zivchei shelamim. Why didn’t he give instructions regarding the chatat at the same time? The simplest explanation is that it was burnt before he arrived, but a beraita on Yoma 5b, as explained by all rishonim I have seen, takes a different approach. 

:‘כי כן צויתי, כאשר צויתי, כאשר צוה ה

;כי כן צויתי – באנינות יאכלוה

;כאשר צויתי – בשעת מעשה אמר להם

.כאשר צוה ה’ – ולא מאלי אני אומר

(Scripture in this unit of narrative contains three phrases of command:) 

“Because I have been commanded so,” “as I have commanded,” “as Hashem commanded”:

“Because I have been commanded so” – that they must eat it (=the minchah) even while in aninut; 

“as I have commanded” – this is what Mosheh said to them when it happened;

“as Hashem commanded” – and I do not say this of my own (authority)

 Tosafot HoRosh presents the consensus interpretation:

– “ולא מאלי אני אומר”

,כלומר: אל תהיו סבורים שכמו שטעיתי בשעיר של ר”ח 

,כך אני טועה בחזה ושוק

.דודאי צוה הקדוש ברוך הוא כך, ולא מאלי אני אומר

.אף על גב דסדר הפסוקים אינו כך – אין מוקדם ומאוחר בתורה

“and I do not say this to you on my own (authority)”:

Meaning: Don’t think that just as I erred about (eating) the goat of the Rosh Chodesh sacrifice,

so too I am erring about the chazeh and shok (of the zivchei shelamim)

because the Holy Blessed One definitely commanded this, and I do not say this of my own (authority).

Even though the order of the verses is not this way –

there is no ‘before’ and ‘after’ in the Torah (= its narratives are not chronologically ordered).

The “order of the verses is not this way” because “as Hashem commanded” occurs in the text before Mosheh errs about the Rosh Chodesh goat. Yet the consensus interpretation reads Mosheh’s emphasis on this being Hashem’s command as a response to Aharon and his sons losing confidence in him because of that error. It’s unclear why they would respond well to this assurance. If he was mistaken last time about what G-d intended, why not again?

Perhaps because of this problem, Netziv reinterprets against all the rishonim. He notes that in Vayikra 7:30, the Torah speaks of waving the chazeh but not the shok, but that in 9:21, Aharon waves the chazot and shok “as Mosheh commanded.” In 10:15, Aharon waves both shok and chazeh, and actually doesn’t mention eating at all. Netziv in his Torah commentary Haamek Davar concludes that 9:21 describes Aharon as obeying Mosheh because waving the shok was then a hora’at sha’ah­, as suspension of ordinary Torah law. 10:15 makes waving the shok ordinary halakhah, “as Hashem commanded.”

–”ונראה דהא דאי’ ביומא ד”ה ב’ ע”ז המקרא “ולא מאלי אני אומר

,קאי אתנופת השוק

ולא כפרש”י שם 

,שפי’ הכל לענין אכילה באנינות

:שהרי לא מיירי בזה המקרא באכילה כלל

It seems that when Yoma 5b says regarding this verse “and I am not saying this on my own authority” – 

it refers to the waving of the shok, 

as against Rashi’s commentary there 

which explains all (three phrases of command) as referring to eating while in aninut, 

because this verse is not talking about eating at all.

In his Talmud commentary Meromei Sadeh, however, Netziv shows much greater caution. 

ולולא פירש”י

הייתי אומר דקאי 

על הא דצוה להניף את החזה יחד עם שוק הימין

If it were not for Rashi’s commentary, 

I would have said that this (= “as Hashem commanded”) refers 

to the command to wave both the chazeh and shok

A search of the Bar Ilan Responsa database reveals that Netziv uses the subjunctive לולא = “If it were not for” this way more than seventy times in Meromei Sadeh, five times in his responsa collection Meishiv Davar, once in the extended notes section of his Torah commentary, called Harchev Davar, and never in Haamek Davar. So it seems to me that the difference here reflects something beyond this specific case.

What does “If it were not for” really mean? 

A draft article I submitted as a teenager to the RIETS journal Beit Yitzchak contained many iterations of nir’eh laaniyut da’ati, “it seems to my impoverished intellect.” The editors made me remove them on the grounds that “you don’t actually have that many chiddushim (-creative points).” I learned that “it seems to my impoverished intellect” marks a claim of originality, and “if it were not for” marks a claim of great originality.

But this cynical approach can’t be correct here. Aside from Netziv’s character, it can’t account for why the same reading is introduced by “were it not” in one of Netziv’s books and not another.

A more likely explanation relates to genre. Netziv sees no need to gesture toward authority when the field is Bible commentary, but he does when the field is Talmud commentary. 

Maybe that’s because Netziv thinks Talmud commentary is generally a fit source for halakhic decisionmaking, whereas Torah commentary is not. (This would explain the uses in Meishiv Davar as well as the use in Harchev Davar, which is often more about Talmud than Torah). A claim that one’s creative interpretation is better than the one sanctified by tradition is more destabilizing in the realm of Talmud than in Torah, because a long tradition holds that legal interpretation of Torah is a world unto itself that can ignore or uproot what might be the best literary reading.

If it were not for my predecessors, I would suggest the following.  Neither Mosheh nor Aharon was necessarily correct about whether Aharon should have eaten the chatat. However, Mosheh had a presumptive interpretation, that it should be eaten. He therefore was upset to find that Aharon had burnt it. But when Aharon offered a reasonable interpretation to justify his behavior, Mosheh’s reaction was not to overrule him, but rather to say happily “My brother has defeated me, My brother has defeated me.”

Had Mosheh insisted on his own interpretation, he would have won the battle, but lost the war. The point was not to establish his personal authority, which would not outlive him, but rather the authority of Revelation. Mosheh’s demonstration of humility and integrity, his recognition that his own interpretation was not the same thing as G-d’s Word, established him as utterly trustworthy when he claimed Revelation directly, and thus established the authority of Revelation forever.