Monthly Archives: August 2022

Large-scale social problems often have complex and multiple causes. Narrow proposed solutions therefore are often ineffective, inefficient (=imposing costs greater than the benefits they obtain), or even counterproductive, while broad proposed solutions are often extremely risky and politically impossible.

Torah offers no foolproof way around or through this dynamic. That does not excuse Torah scholars, leaders, and just plain bnei and bnot Torah from grappling with large-scale social problems through the lens of Torah. However, it does require us to think responsibly about the role Torah and Torah authority should play in dealing with such problems.

For example, we evade responsibility by imagining that a complex problem would swiftly vanish in a true “Torah society”, where the “right answer” would be rapidly identified and then immediately implemented. A mentor and friend of mine calls this “magical thinking”.

An element of this “magical thinking” is the assumption that politics would disappear in a Torah society. This is akin to Ayn Rand’s fantasy that “there is no conflict of interest among rational men”. There are real and legitimate conflicts of interest and loyalty among genuinely religious people, and politics is the way those conflicts work themselves out.

The fantasy that Torah’s expression in human society is above politics often collapses on examination into a desire for fiat rule and/or fascism. Each of these rests on the assumption that individual or sectional interests and loyalties have no legitimacy when they conflict with the good of the whole, whereas politics assumes that they have legitimacy that must be taken into account when considering the good of the whole.

The fantasy therefore leads to Torah governance being presented as if it requires no “checks and balances”, as a simple top-down system in which anyone below the top level has no duty or right other than obedience. Any acknowledgement that the “top” is different in different spheres, e.g. “separation of powers” of the Sanhedrin, King, and High Priest, is twinned with an assumption that the boundaries between those spheres are clear and indisputable. This inhibits serious Torah responses to large-scale social problems. Solutions to problems with complex and multiple causes inevitably cut across the “silos” that are set up to avoid allowing political conflict into Torah. They require cooperative efforts across realms of leadership.

To understand what such cooperative efforts entail, it is necessary to recognize that halakhah is not the only tool available to halakhic policy makers, or at least that it is a more variegated tool than is generally acknowledged.

For example: It is possible for Torah leaders to issue a formal prohibitive decree and at the same time acknowledge that it deliberately has no enforcement mechanism. Or to declare that a specific action is now a middat chasidut or mitzvah min hamuvchar, i.e. highly praiseworthy but not mandatory. Or to declare that the Torah endorses a specific end without taking any position as to which specific actions contribute to or frustrate that end.

These reflections were prompted by two pieces of parshah-related Torah.

The first was this week’s dvar Torah from Rav Shaul David Boczko shlita, discussing Devarim 20:19-20.

Read most narrowly, these verses establish a prohibition against cutting down still-productive fruit trees during a siege when one can accomplish the same thing by cutting down non-fruit trees. Read most broadly, they establish a general prohibition against destroying things without an adequately constructive purpose.  (This prohibition is often referred to as bal tashchit, but should not be confused with the identically-named prohibition against men shaving with a razor.)

Rav Boczko proposes that the distinction between fruit and non-fruit trees applied only while the atmosphere was clear and health-giving. Now that air pollution poses a profound challenge to human thriving, all trees should be halakhically regarded as fruit trees.

I presume that R. Boczko intends this conceptual shift to apply to the broader prohibition as well. That is to say: Pre=21st century applications of bal tashchit consider only the immediate human utility of the object being destroyed. We now need to consider the question of how that object’s continued existence impacts its entire environment.

The proposed halakhic shift would have minimal practical impact. Halakhic precedent generally allows cutting down fruit trees for a wide variety of reasons. I am not offhand aware of a practical case in which a private landowner wished to cut down a specific fruit tree and was told that this was prohibited. It does not require that the desired gain be proportional to the loss, just that there be a real gain. (In the original military context, it prevents permanently harming the enemy’s food supply as an act of vengeance without imposing any tactical or strategic restrictions.)

Nonetheless, within communities for which the Torah prohibition resonates, it might be very significant psychologically if people came to regard all trees as objects for which the Torah has the same special concern that it has for fruit trees.

At the same time, what if I am not convinced that trees contribute significantly to air quality? What if I’m afraid that the unintended impact of this ruling will be that fewer houses are eligible for solar panels, which will slow the capacity of solar energy to compete with fossil fuels economically?

The answer, I think, is that these objections are relating to the expansion of bal tashchit as if it were an attempt to comprehensive solve the problem of air quality. But halakhic interpretation by itself is rarely capable of having that kind of direct impact on large-scale social issues, especially when those issues cannot be usefully addressed within the halakhic community in isolation.

What halakhic interpretation can do is affect the political conversation about those issues within the halakhic community. 

Imagine our world as a Torahcracy. What would the appropriate processes be for developing and implementing policies aimed at sustaining or improving air quality?

I suggest that it would require cooperation and coordination among all those with executive, legislative, and judicial authority. Moreover, I think that the number of those who would have such authority, and the complexities of their interrelationships, are radically understated in the ways we teach halakhah today.

Take for example the position of shoter. The opening verse of Parshat Shofetim veShoterim mandates the appointment of shoterim in “all your gates”. Rashi describes them as court marshals, whose purpose is to ensure, by force if necessary, that people carry out court judgments. Rashbam emphasizes that they have no discretion and act solely at the command of the courts. This seems to fit with a notion that courts-of-law have ultimate and exclusive sovereignty under halakhah. 

However, the late 15th Century super commentary of Rabbi Eliyahu Mizrachi grants them discretion: “They are the ones in whose hands is the koach/power and memshalah/authority to bring into the light the judgment of the judges, and without them – the judges have no power or authority over the disputants at all, only lehorot/to determine the law.” This is underscored by Gur Aryeh’s objection that Mizrachi makes shoterim more important than shofetim! 

Mizrachi concedes that Rambam’s understanding of the position gives the shoterim a more expansive role while denying them all discretion: “They are the holders of stick and strap who stand before the judges who circulate in the marketplaces and stores to establish the market prices and weights and to correct all corruption, and all their actions are at the instruction of the judges”. However, I’m not sure that these circulating judges are the same as those who sit in judgment on cases. 

The 19th century commentary Shadal radically separates the roles of shofet and shoter:

“The shofetim would judge issues between people, or when witnesses came to testify that a person had sinned, while the shoterim would oversee the peace of the state and decree gezeirot/rules and hanhagot/practices on the people”.

Netziv introduces yet another political player: the “head of the city”, who represents the general public and is required to oversee the shofetim to ensure that they judge “mishpat tzedek”.

Each of these role-definitions would themselves be the legitimate subject of political maneuvering among officeholders, each of whom would ultimately need support from their constituencies. (I leave aside the question of how people gain office, and how they can be impeached or otherwise removed. Generally, halakhah assumes democracy.) Effective mandatory environmental legislation would require the agreement or at least willing cooperation of all these authorities and constituencies. (We also haven’t yet discussed whether the Sanhedrin can delegate whatever authority it has to regulatory agencies such as the EPA.)

My point is that the process for developing and implementing environmental policy in a Torahcracy would be roughly comparable to those in a pluralistic democracy. Therefore, the fact that Orthodox Jews do not control the entire system, and that Torah is not the agreed framework of conversation, if anything only increases our individual responsibility to be intellectual and practical contributors to the policy discourse on such issues.

Shabbat Shalom!

By Rabbi Aryeh Klapper

(A version of this dvar Torah was published in 2017. But even if you remember it verbatim, please see my reassessment at the end here.)

Everything that I am commanding you –

that is what you must observe, to do.

You must not add to it; and you must not subtract from it.

Devarim 13:1 can be read as a free-standing and self-sufficient sentence, which is why Archbishop Langton has it starting a new chapter. However, the traditional Jewish punctuation reads it as the true conclusion of the preceding chapter, which ends:

Do not do the same for Hashem your G-d,

because it was all the things Hashem abominates, that He hates, that they did for their gods;

 yes, they would even burn their sons and daughters in fire for their gods.

Seforno uses this connection to make the startling claim that the prohibition against “adding to” is needed to prevent Jews from voluntarily instituting child sacrifice for the sake of Heaven.

“You must not add to it” –

because perhaps you will add something that is revolting to Him May He be Blessed,

as would happen if you wanted to add forms of service to the Divinity May He be Blessed,

that on occasion the added service would be revolting to Him May He be Blessed,

like the burning of sons.

Seforno’s shocking suspicion also implies an important if theoretical liberalism: G-d does not reject humanly conceived and initiated worship out of hand. If we could be trusted to choose actions which pleased Him, perhaps He would even prefer such freely-chosen worship above purely obedient service.

By contrast, Rabbi Samson Raphael Hirsch reads our verse as rejecting human religious autonomy in principle.

“Everything” –

the parshiyot-division of the Masorah shows that this verse is the conclusion of what is said before it,

and this is its meaning:

For this reason,

you must not produce for yourself new ways of Divine service,

you must not seek to ingratiate yourself before your Divinity

in ways different from those that were established by Him. 

Only if you faithfully perform that which he commanded

will you express the submission which He is expecting from you.

He imposed mitzvot on you and taught you how to fulfill them,

and these mitzvot and these ways of fulfilling them express His will.

Rav Hirsch seems to believe that worship in a freely-chosen form is oxymoronic. 

This profound philosophical dispute between Seforno and Rav Hirsch may reflect an even deeper disagreement about the nature of the Oral Law. Why doesn’t the rabbinic corpus constitute an illegitimate addition? 

For Rav Hirsch, the Written Law is famously the “lecture notes” for the Oral Law.  This means that the Oral Law actually came first – the Written Law is just a way of encoding it.  There is nothing creatively human about the Oral Law; even the most brilliant rabbis merely decode complex crossword clues correctly.  This tracks with his absolute prohibition against adding.

By contrast, Seforno may acknowledge that while the Oral Law is under the authority of the Written Law, it is the product of an unscripted human encounter with the Divine Will, and may reflect genuine creativity.  For Seforno, the prohibition may be against undisciplined adding.

This theme is elaborated by Rabbi Pinchas Halevi Horowitz (1730-1805) in his Panim Yafot.  Rabbi Horowitz reads the opening of the verse as a reference to the Oral Law – “Everythingthat I am commanding you” includesmatters that are not explicit intentions of the text.  He embraces the paradoxical formulation on Megillah 19b that G-d showed Mosheh everything that the Soferim would eventually originate. The Talmud says that this refers specifically to the rabbinic mandate to read the Megillah on Purim, but Rabbi Horowitz reads it more broadly. He then adds an important excursus on the nature of Torah study.

. . . the study of Torah in every generation has two aspects

The first is to learn the Torah that has already been given, in writing or orally,

in all the previous generations.

This learning is called mikra and Mishnah.

The second type of learning is analysis and excellent comprehension

which is a person’s ‘portion’ given out by Hashem in the Torah

 as is written “and give our shares in Your Torah”.

. . . These two aspects reverse during a person’s years.

In his youth –

he does not need so much diligence and good memorization,

as per Talmud Shabbat 21b that the learning of youth arises in memory more than that of old age,

but the investigation of the intellect is the reverse,

because their mind becomes settled . . .

According to Rabbi Horowitz, the human “share” in G-d’s Torah is not what we take out of the text, but rather what we put into it.  It is our creative contribution.  But such contributions must be built on a solid basis of knowledge of the written Torah and all its previous interpretations, including those once regarded as creative.  In turn, our successors will be required to memorize our creative contributions by rote before being allowed to attempt such contributions themselves.

Rabbi Horowitz thus sets out a model for the discipline that Seforno may see as the difference between legitimate creativity and illegitimate adding. Creativity must go hand in hand with genuine commitment to and respect for the past.  Moreover, creativity is not an end in itself; rather, its value is predicated on being filtered via sound and mature judgment.

Let us be frank – this model may not be useful for diagnosing in real time which creative contributions by others are legitimate. There is no formula for determining the genuineness of commitment to the past. Emphasizing memorization simply privileges those with superior memories. Good and mature judgment are often misidentified, especially by those whose judgment lacks those qualities.

What may help us be honest about the legitimacy of our own creative contributions is acknowledging and keeping-in-mind the Torah’s caution that creativity can lead to human sacrifice. 

The Kotzker Rebbe reportedly asked: Why did the angel call out to Avraham two commands-to-stop at the Binding of Isaac?  Wouldn’t Avraham have stopped once G-d said “DO NOT send your hand forth against the child”?  Why did He need to add “and do nothing at all to him”? 

More astonishingly yet, Rashi claims that Avraham did not stop in response to “DO NOT send your hand forth”; rather, he asked for permission to at least wound Yitzchak, which is why G-d continued “do no meumah (a pun on mum = physical blemish that invalidates a sacrificial animal) to him”. Why would an apparent sadistic streak emerge in response to the reprieve, rather than a joyous celebration?

The Kotzker replied: The most difficult temptations to resist are those that suggest to a person that letting his or her worst evil inclinations flourish would fulfill the Divine Will. For example, we may convince ourselves that the very absurdity of an action is what proves its religious origin: who but G-d would think of such a command?  Or we may convince ourselves that genuine religious devotion can only be demonstrated by engaging in the most ethically counterintuitive actions. Only by doing things that would otherwise horrify us can we prove that we are utterly engaged in the fulfillment of His will rather than our own. Thus the true test of the Akeidah was not whether Avraham would sacrifice Yitzchak, but rather whether he would be able to abort the sacrifice when told to stop, when he became intellectually aware that it was not actually G-d’s Will that he kill Yitzchak. This test was so challenging that even Avraham was unable to stop immediately, even when presented with an angel telling him to stop. The angel had to tell him a second time to prevent him from drawing blood. (Note that in some Crusade-era texts Avraham in fact kills Yitzchak, but G-d resurrects him, and the angel speaks the second time to prevent Avraham from killing him again).

Five years ago, I ended this dvar Torah as follows:

A reasonable argument can be made that the popularity of creative stringencies in contemporary Orthodoxy stems precisely from this impulse, especially in the areas of conversion and agunot. 

There is real and culpable inconsistency in celebrating creative leniencies while denigrating creative stringencies.  At the same time, we should be hyper-suspicious of any creativity that seems to draw strength from the number of victims it claims.

In retrospect, several elements of the essay should be challenged, interrogated, and perhaps altered or even discarded.

1. I’m no longer convinced that Seforno is deliberately opening space for disciplined adding. I’m generally not sure that it’s productive to describe new legal applications as “adding”, rather than just referring to one or another of the deliberately paradoxical formulations Chazal use to cover reformulations that were at the least not explicitly intended by the previous human formulation. I think Rav Hirsch is the outlier in trying to limit the range that paradox can cover.

A better argument for the necessity of new legal applications, as per Panim Yafot, is that without such applications, law almost inevitably becomes at best obsolete and often counterproductive. Law is about the application of principles to facts, and therefore legal formulations over time absorb facts. When those facts change, creative interpretation is needed. This can take the form either of redefining past “fact terms” to include present realities, or of re-abstracting principles from the formulations and then applying them to present realities.

2. Leniencies as well as stringencies can claim victims; allowing child sacrifice would be a halakhic leniency. Moreover, in many situations there is no clear “baseline position”, and therefore it is not clear whether the primary options are baseline and leniency, baseline and stringency, or leniency and stringency. Perhaps the most victims are claimed when people rely on a position that one side presents as baseline and the other as leniency, so that the backlash is viewed by the first side as a creative stringency and the other as simply maintaining the baseline. I suspect the Kotzker’s yetzer hora is also present when creative leniencies seem to draw strength from the number of people they put at risk.

Shabbat shalom!

By Rabbi Aryeh Klapper

“A fundamental failing of the evolutionary analogy may be that halakhic change is not, cannot be, and ought not be blind. Modern Orthodox halakha should be seen instead as the product of an expertly supervised breeding program.” I wrote that some years ago in “Does Halakhah Evolve? Thoughts on Speciation and Sectarianism” (see https://www.jewishideas.org/node/2632/pdf). This week I’ll try to broaden the modified analogy. My opening contention is that Halakhah is in regular danger of extinction.

The threat I have in mind is not from anti-Semitism, horrible as that can be, nor from the assuring temptations of modernity. Rather, it is from ordinary legal climate and environmental change. Please allow me to explain.

Law becomes real when rules are applied to facts. But “fact” is a tricky term here; for the purposes of law, the facts generally are what the law says they are. “Legal fictions” are actually legal facts, although they do not conform to real-world facts.

So, for example: The law says that the child of a woman’s adulterous sexual relationship is a mamzer, and the science of DNA identification may tend to indicate that person X is the child of a woman’s adulterous relationship. But the halakhah may use its own epistemology to determine that person X is actually the child of his mother’s husband. That becomes a legal fact, and the law is then applied to rule that X is not a mamzer. The halakhah of mamzerut can choose to make itself extinct by developing an epistemology that invariably concludes that the child of a married woman is her husband’s.

Now imagine a world in which reproduction is completely separated from the heterosexual act, so that all pregnancies carried to term occur via in vitro fertilization. At that point hilkhot mamzerut go extinct unless we choose to extend the laws of mamzerut to children conceived in vitro, even if there is little or no precedent for such a claim, or else choose to establish a legal fiction which defines some real-world children as conceived via a heterosexual act. The extinction would be caused by a change in the real-word environment of halakhah.

To make my point plainer: In such a world, a person without consciousness of historical change could declare that “The mamzer never was and never will be”. That statement would not reflect an active choice to make the law extinct, but rather a failure to make an active choice that could sustain the law’s practical applicability.

In the case of mamzerut, I think most of us would morally celebrate the law’s real-world demise. We would not have fast days praying for its resurrection, any more than we do for the Rebellious Son or Idolatrous City.

We might also celebrate poskim who succeeded in making a presumption of nonsexual conception a part of contemporary halakhic epistemology even before we fully entered Brave New World. But my point is that halakhah can become extinct by inaction as well as action.

Outside of mamzerut, I think it’s fair to say that halakhah has a bias toward treating real-world facts as legal facts. So, when the real-world facts change, whether because of actual physical changes or because of new evidence, halakhah is often in danger of extinction.

One clear contemporary example is the kashrut of metal vessels. It’s well-accepted at this point as a real-world fact that metal does not absorb flavor in the manner that seems to be assumed by past halakhah. This has the potential to make many separating and koshering practices extinct. One counterweight is that many other, and perhaps more fundamental, kashrut practices depend on legal facts that may no longer seen as real-world facts, e.g., the origin of anisakis worms in fish or the effect of salting on the blood in freshly slaughtered meat. So, kashrut as a whole may instead become more resistant to the pressure of reality on Torah.

These reflections were prompted by cases related to the chatzer that came up in the course of the 2022 Summer Beit Midrash. A chatzer is perhaps best translated into English as “courtyard”. In Talmudic times, it appears to have been an enclosed space that more than one dwelling opened onto and shared exclusive use of. Chatzers in turn opened onto mavuis, or alleyways, which were exclusive to the residents of those chatzers. Mavuis might open onto larger alleyways, but eventually they would reach a street or plaza that was seen as in the public domain, meaning that its use was given equally to all residents of the city, no matter how close or distant their chatzer might be from it, or how many alleyways they would have to traverse in order to reach it.

A reasonable Hebrew translation of “public domain” is reshut harabim, which is the term for spaces in which it is Biblically prohibited to carry an object more than 4 amot on Shabbat. In spaces where the prohibition is Rabbinic, it is sufficient to put up walls consisting of giant, horizontal, imaginary doorways (tzurot hapetach). The space is then considered enclosed, and most such spaces revert to being considered private domains = reshut hayachid. A Biblical reshut harabim requires the enclosure to conform much more closely to real-world facts, e.g., to have actual doors in its doorways, and that they actually be closed on occasion.

However – the Rabbis also prohibited carrying between spaces with different ownerships. Thus, one may not carry from a house into the chatzer it shares with neighbors, or from a chatzer into a mavui it shares with other chatzers. However – the rabbis also provided a solution. The members of a chatzer can join together to create an eruv/blending. This is a legal fiction by which the existence of a nominal amount of shared food designated for the purpose declares the entire space to have unified ownership. A similar practice called “alleyway partnerships” = shitufei mavo’ot enables the same thing one level up.

In the Jewish communities of Medieval Europe, or at least those around the Raavyah, it seems that houses opened in front directly onto at the least alleyways. This could have radically altered the Shabbat experience – nothing could be carried outside the front of the house. In response, the rabbis declared that the spaces the houses opened onto would be treated as chatzers. The effect of this was to preserve a perhaps crucial aspect of the Shabbat experience, but at the same time, to make the laws of shitufei mavo’ot practically extinct, since these chatzers opened onto public streets. Moreover, in our days, almost all houses open directly onto streets that are open equally to all city residents (I’m not clear on whether this was already so in Raavyah’s time.) So, the capacity to carry out of front doors might be eliminated if we pierced this legal veil (although “eiruvs” nowadays tend to rely on communal purchases of all outdoor and indoor space “for Shabbat-carrying purposes” from a governmental entity, which seems to automatically create single ownership, so I’m not clear on the extent to which the communal food has legal effect.)

In a few contexts, some Tannaim and Amoraim also treat the house-chatzer combination as having a unique legal impact. For example, the definition of a walled city is that it must have three chatzers each containing at least two dwellings. One can argue for treating this as defining a city generally, even when there is no wall. For example: A person’s Shabbat techum is defined as 2000 amot beyond their city. If they are in a space that is inhabited but not walled, is it a city? A standard answer is that it depends on whether their space (how their space is delimited is a topic for another day) contains three chatzeirs each containing at least two dwellings.

But – for this purpose, I have not found anyone who considers treating our streets as chatzeirot. The gap between legal and real-world fact would apparently be too great. Chazon Ish even actively opposed treating multi-dwelling buildings as having indoor chatzers. Since few contemporary cities have a solid boundary such as a wall, it might follow that the standard techum for a contemporary city dweller is 2000 amot from their own door, since the “city” does not match what halakhah requires. Yet I am not aware of any posek who treats this possibility as more than a straw man. Instead, they actively seek definitions that allow the halakhic city to map onto today’s actual cities. Here again, inaction might lead to the practical extinction of aspects of hilkhot techumin.

An ongoing conversation in this summer’s wonderful SBM was whether halakhic choices could be made with the intent of maintaining the practical existence of hilkhot techumin, both generally and for specific people or areas. For example: would a halakhic position be considered disproven if it led to the entire Eastern Seaboard being one large techum, since that would make it practically irrelevant for millions of Jews? If yes, what is the maximum size? (Noting that the rabbis already permitted traversing a city “as large as Antioch”!). I noted that the Book of Jonah describes Nineveh as a three-day’s journey, but they noted that archeology has not yet found evidence of it being anywhere near that large.

I encourage you to think of other areas in which we need to make choices in order to continue the practical existence of specific halakhot or areas of halakhah, and thoughts about how we should go about deciding how to make those choices.

Shabbat shalom! Please watch this week for a special email announcing my new book, an associated podcast from the 2022 SBM Fellows, and more.

By Rabbi Aryeh Klapper

The 2022 SH’AYLAH includes two real-world cases. Fellows will choose to answer one or both. I chose this model because a major part of the issue in deciding techumin is balancing the desire to solve a specific problem, with the need (perhaps) to set consistent and predictable halakhic standards. The conversations among Fellows doing different cases have in fact been highly productive. 

Techumin questions are by nature highly visual, so I’ve included Google Earth links in the text. For those reading on Shabbat, or who have trouble visualizing, it should be enough that each case initially seems to require traversing a straight-line distance of more than 4000 amot through space that is not considered part of the space within which one began Shabbat. The laws of techum allow one to travel only 2000 amot (or possibly the hypotenuse of a 2000 amah by 2000 amah square) in any direction beyond that space (although an eruv techumin can allow one to be considered as beginning Shabbat anywhere within those 2000 amot, and then to count one’s 2000 amot from there; and there are many other nuances).   

One of the questions I’ve been thinking about throughout the program is the extent to which modern mapping capacities can and should change the precision and imagination with which these halakhot are developed. Josh Rosenthal’s cooperation and SBM presentation have been enormously helpful in this regard.

Another core question the Fellows and I keep coming back to is whether a halakhic position can be disqualified because its consequences in our place and time seem impossible or counterproductive, even if that would not have been true in previous eras.

An example is a position that because of population growth now leads to the entire Eastern Seaboard, or North America, being one techum zone. This can likely be accomplished if we allow a city to be “squared” in the cardinal directions, meaning to have a rectangle drawn around it that touches it furthest extension in each cardinal direction, without regard to how distant the perimeter ends up being from the original city; and then ruling that cities can be combined if their “squares” intersect in any way; and then ruling that such merged cities can themselves be squared; and that this process can be infinitely iterated.      

Another example is a position that ends up treating even super-dense urban areas as atomized, forming no common “city”. This can likely be accomplished by defining an unwalled city as requiring minimally three contiguous (i.e. within 70 amot of each other) unroofed courtyards each adjacent to at least two residences with separate entrances onto the courtyard, and whose use is exclusive to those residences. Do such contiguous courtyards exist in Manhattan?

Another core question is whether psak regarding techumin should primarily be responsive to the living conditions of Jews now, or rather should embody or advocate for an ideal urban planning model, and be willing to inconvenience observant Jews now for the sake of preserving and educating about that ideal.

The procedural questions hanging over all these are whether the principle “halakhah kedivrei hameikil b’eiruv” applies to post-Talmudic and even to contemporary halakhic disputes; whether it mandates or only permits adopting the lenient position in such disputes; and whether it comes into play even when one sees a stricter position as intellectually or textually more likely. 

Listening to the creativity, depth, seriousness, integrity, respectfulness, and self-awareness of the Fellows as they work on their teshuvot has been inspiring and wonderfully affirming of the SBM model. I look forward to sharing their work with you, and I encourage you to email me your thoughts and questions about the Sh’aylah in the interim.  

1.

The Mass Audubon Moose Hill Wildlife Sanctuary, as its name implies, is intended as a space for humans to visit rather than to live in. According to https://www.massaudubon.org/get-outdoors/wildlife-sanctuaries/moose-hill/about, “Moose Hill, established in 1916, is Mass Audubon’s oldest wildlife sanctuary, encompassing protected forests, fields, and wetlands. Diverse hiking trails and a red maple swamp boardwalk provide countless opportunities for exploration in addition to seasonal programs and summer day camp.” To the best of our knowledge, there are no sleeping facilities in the sanctuary, although the main center hosts a summer day camp and many other activities.

There are some houses along the roads that run alongside or through the sanctuary, especially along Upland Road. In the past, various rabbis including Rabbi Klapper and Rabbi Cheses have permitted people living near the intersection of Upland Road and Moose Hill Parkway to walk to shul on Shabbat, and return to their homes.

House prices in Sharon have risen sharply during the pandemic, the Orthodox community is highly attractive, and inventory is scarce to the point that the Young Israel of Sharon maintains a list of families to notify whenever a house becomes available.

One such family is the Achashtranim. Dal and Annie are a 40ish couple with a 12-year-old son and 11-year old daughter They currently live in Swampscott, where their children attend public school, and often attend the local Chabad on Shabbat morning. They describe themselves as “aspirationally Orthodox”. Dal is an auto salesman and Annie works as an assistant manager at Shaw’s. They want to live in Sharon to be nearer Annie’s aging parents, who live at Avalon Sharon.

They have asked whether they can consider houses that become available further within the sanctuary. They’ve asked specifically about 354 and 361 Moose Hill Street, although these are not currently on the market. They are willing to live outside the eruv, but would like the option of walking to shul, although they admit that they probably won’t show up more than once a month. They also admit that they might buy one of the houses even if you say the walk is forbidden, and then decide for themselves whether to come at all.

Meanwhile, Rabbi Cheses has become concerned that some members of the shul may be hiking the trails within the sanctuary without considering techum issues. He’s asked you to draw a map of the sanctuary explaining where people living within the Sharon techum can and cannot hike to on Shabbat, if in fact there are areas on the trails that are out of bounds. By “Sharon techum” he means the techum zone that contains the shul, whether or not it contains the entirety of Sharon, or parts or all of other cities, states, countries, or continents. This map would presumably also be helpful to families if any other homes become available.

2.

Tzvi and Ayelet are graduate students at Rutgers University. The university has assigned them housing at 97 Nichols Apartments. They accepted that assignment on the assumption that they would be able to walk to Chabad and Hillel, and were astounded to hear that a frum couple previously assigned to the same house had raised techum issues, and had been unable to find a posek willing to tell them that it was permitted to walk to Hillel on Shabbat. That couple had resorted to placing an eruv techumin that they believed enabled them – barely – to walk to Chabad.

Tzvi is an ex-chasid who flatly refuses to attend the Chabad at Rutgers, although he is unwilling to say why. He generally has a challenging relationship with religious authority – in this case he makes clear that he thinks the whole question is ridiculous – obviously the whole campus is one techum! – and he’s asking it only because he really wants to invite Shabbat guests from Hillel, and he’s davka asking you, based on your SBM experience, rather than any rabbi. Ayelet, by contrast, relates to halakhah mostly in terms of rabbinic authority, with some element of social conformity added in. She does not like cutting corners or relying on minority opinions. So as not to provoke a fight with Tzvi, she hasn’t asked a rabbi for psak, but she makes clear to you that she’ll only accept a heter if you can honestly tell her that it’s a mainstream position that can be relied on even lekhatchilah and not in a sh’at hadchak.

Shabbat Shalom!