moderntoraleadership

by Rabbi Aryeh Klapper

“My thoughts are not your thoughts, and My ways are not your ways, says Hashem” (Isaiah 55:8). Maimonides read this verse as a statement of fact – the word “thought” means something utterly different in kind when ascribed to G-d than it does when ascribed to human beings. Acquiring human wisdom requires recognizing and accepting that we cannot truly understand G-d.    

Rashi reads the verse as a critique – human thoughts and ways are not the same as G-d’s, but they should be! We should try our best to bridge the gap by thinking and acting as much like G-d as we can.

Chazal mostly took a third approach. They illustrated the verse with examples of behaviors that make sense for G-dbut not for human beings. (In the modern era, Rabbi Aryeh Kaplan adopted this approach in If You Were G-d,  which tries to demonstrate the rationality of G-d’s choice of the Jewish people to bear His message to the world. The Mormon science fiction author Orson Scott Card does something similar in his Homecoming saga.) Here is an example from Midrash Tanchuma (Vayeshev):

This can be compared to a flesh and blood king 

who was sitting in judgement over another human being.

The king says to him:

Say whether you killed or did not kill!

If the defendant replies: “I killed” – the judge kills him; 

But if he does not confess – the judge does not kill him.

But The Holy Blessed One is not like that.

When someone confesses, The Holy Blessed One has mercy on him.

Flesh and blood judges in the pre-forensics era had little choice but to rely on confessions, since the evidence was rarely completely dispositive. Conscience and public opinion also combined to make them leery of executing the possibly innocent (as seems to still be the case in China). Finally, religious scruples might prevent them from executing someone unshriven. 

The first two rationales have no reasonable relevance to G-d, the omniscient judge Who knows all relevant facts and motivations. What about the third? Human courts encourage confession so that the defendant can achieve forgiveness from G-d before dying. But they cannot forgive just because G-d forgave, or every defendant would game the system by confessing. But G-d knows which confessions are sincere and which spurious.

Of course, Halakhah never accepted confessions in criminal cases. The midrash draws its contrast between G-d and royal justice without telling us where a Sanhedrin fits in. I suggest tentatively that this midrash prefigures the Derashot HaRan’s famous contention that Halakhic criminal law is not intended to achieve the practical ends of social order and justice, but rather to bring the Divine overflow into this world, while an adjacent royal law (maybe parallel to dina demalkhuta dina) accomplished the practical ends. Halakhic criminal law models Divine justice as administered by human beings. It serves as both an inspiration and a caution.

To sum up: Human judges and the Divine judge are motivated by the same ethical concerns. However, our inferior access to knowledge properly yields different practical legal standards. Human societies should derive principles from G-d’s judicial behavior but not thoughtlessly ape the specifics.

Chazal’s approach, unlike Rambam’s, allows us to ethically evaluate G-d’s choices. But lehavdil elef alfei havdalot we must be careful to evaluate as if we were k’b’yakhol standing in Hashem’s metaphorical shoes. So, for example, when Avraham challenges: “Shall the judge of all the land not do justice?” he is within his rights and obligations to establish justice as the standard. But the judge of all the land may have freedoms and constraints that give justice a different expression than when administered by local judges.

Let’s see whether this approach can be productively applied to the narrative of Akeidat Yitzchak. Our focus will be on how G-d could ask or command Avraham to sacrifice Yitzchak, whether or not He intended to withdraw the request/command before it could be carried out. 

Prima facie, G-d’s initial request/command seems unethical in at least three ways: it imposes enormous psychological stress on Avraham (and on Sarah if she knows, and Yitzchak at whatever point he begins to suspect); it imposes enormous stress on Abraham’s relationship with Yitzchak (at least); and it runs the risk that Avraham will go ahead with the sacrifice of Yitzchak even if the request/command is withdrawn. (We can perhaps say in response to the last question that from G-d’s perspective there is no risk, since He could miraculously rescue or even resurrect Yitzchak, but that answer raises a host of different theological questions, and also seems evasive.) These costs must be justified if we want to reconcile them with belief in an ethical G-d. 

Halakhically, the standards for justifying interpersonal damage for a greater cause include: The damage caused must be less than the gain, it must be the minimum necessary to achieve the gain, it must be likely to achieve the gain, and it must not be motivated by animus. The question then is what the potential “gain” of the Akeidah is. 

The obvious answer seems to be in 22:12: “He said: Do not send your hand forth against the child; and do no harm at all to him; because now I know that you are a y’rei Elokim, and you have not held back your son, your only one, from Me.”  

However, this approach can be challenged in at least three ways. First, why was it so important for Hashem to learn that Avraham was a y’rei Elokim? Second, why was this the only way for Him to learn this? Third, how do we know that the Akeidah succeeded, in the sense that G-d k’byakhol learned what He wanted to learn? (Please note that this last question is distinct from the question of whether whether Avraham behaved ideally during the Akeidah, and also that many commentators translate ki ata yadati as “because now I have made known.”)

R. David Kimchi (RaDaK, available on AlHaTorah.org) offers a comment on y’rei Elokim that I find frankly terrifying, and I’d love to be shown that my reading of him is incorrect:

,היראה הזאת היא אהבה 

,כי לא היתה יראת גופו אלא יראת נפשו שלא תאבד 

,שהיה מוסר נפש בנו, שהיה אוהב יותר מנפשו

,תחת נפשו, שלא תאבד מהעולם הבא

.שהיא האהבה לא-ל והדבקות בו

The yir’ah/fear referred to here is actually ahavah/love

Because it was not fear for his body, but rather fear for his soul, that it not be lost,

because he was ceding the soul of his son, whom he loved more than he loved his own soul, 

in exchange for his own soul, that it not be lost from the Coming World, 

which is love of the Divinity and cleaving to Him.

As of now, very tentatively, I read RaDaK as saying that Avraham loved Yitzchak more than he loved himself, but not more than he loved loving G-d. He would cheerfully have sacrificed his own life to protect Yitzchak’s. But he was willing to sacrifice Yitzchak rather than lose the eternal experience of loving G-d.

This may be the epitome of what some refer to as “Akeidah Theology.” Truly loving G-d (alternatively: demonstrating that you truly love G-d) requires not self-sacrifice but rather sacrificing those that you love more than you love yourself. (I should note, though, that on this reading the only people one can justify harming for the sake of religious experience are those you love more than you love yourself.)

Radak’s remarkable but hard-to-accept claim that yir’ah means ahavah points to the possibility that the Akeidah was not fully successful. Perhaps the goal was ahavah, but only yir’ah was achieved. 

This possibility is often raised in the context of judging whether Avraham “aced the test,” with the endpoint generally being that Avraham should have realized that sacrificing Yitzchak was not G-d’s will even before he heard the angel calling (alternatively: the angel was calling throughout, and Avraham should have heard it earlier). But what if Avraham did everything right, but the goal was impossible?

We need to reframe our initial ethical questions in terms of relationships. Is it ever ethical to test someone else to prove their love? King Lear suggests to us that merely asking questions is unlikely to generate a reliable answer. But Lear also reminds us how desperate we can be to know that we are loved.

In Sefer Iyov, the stakes of the test are defined by Satan at the outset: Would Iyov fear G-d even if G-d had no way to punish or reward him? Since G-d can give or take away anything, the only way to find out is to reduce Iyov to a point of depression so severe that he cannot imagine either pleasure or worse pain. The ending is enigmatic – Iyov fears G-d as much as any human being can, but is that enough to answer Satan’s question? I understand the position in Chazal that Iyov is a fiction as meaning that the actions attributed to G-d in the book cannot be ethically justified, so it can only be understood as a thought-experiment, which ends up demonstrating that the answer to Satan’s question cannot be known. Because if human beings can think of the possibility that our suffering is a test, we can never give up hope of being rewarded if we pass.

The crucial difference between Iyov and the Akeidah is that G-d never asks Iyov to participate in the destruction of everything he holds dear. That may suggest that it has a different goal, and perhaps that goal is to teach about love rather than fear. But it may fail in the same way, even though Avraham does whatever is humanly possible. Radak’s reading tries valiantly to reach resolution by reclassifying desire for Olam haBa as selfless love rather than reward, but I find this utterly unconvincing in context. I prefer to say that what G-d k’b’yakhol learns is that love is subject to a variation of Heisenberg’s principle; the act of observing it destroys it. Had Avraham killed Yitzchak, his love of G-d would not have survived. (As it is, the simple reading of Bereishit is that he never speaks to G-d again, and G-d’s only speech to Him is a one-way Self-binding oath.) So G-d calls it off at the last moment.

The question I leave open – to which I invite replies – is this. If you were G-d, such that everyone who believed You existed would also believe in Your omnipotence, and therefore expressions of both fear and love are always compromised – could the experiment be ethically justified?  

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.”

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.  

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 9^th 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 16^th 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. 

by Rabbi Aryeh Klapper

Back when the counterculture was more sexually radical than the mainstream, a popular Orthodox countermeme cited Rav Avraham Yitzchak Kook as advocating “free love.” It was of course clickbait. The ahavat chinam that Rav Kook called for wasn’t about removing constraints on physical relationships. Yet the terms may not be complete homonyms. 

One can interpret the “free love” movement cynically, as an effort to abolish all objective sexual restrictions. But one can also understand it more idealistically, as an effort to prevent any person from being constrained by another person’s love for them. Free love meant that it was given without making any demand on the beloved.

In hindsight, it seems clear that this kind of freedom has a price, which is that the beloved cannot demand commitment from the lover. It is a transactional waiver of rights and privileges rather than a transcendent expression of relationship.

Moreover, human sexuality as a mode of relational expression may be incompatible with this kind of freedom. Aside from the practical challenges raised by the possibility of reproduction (which admittedly can often be evaded or reversed), we have not yet been persuaded, and perhaps we cannot be honestly persuaded, that commitment is not a crucial measure of the emotional depth of a sexual relationship.  

But is this necessarily true outside the realm of sexuality? Alternatively, can freedom and commitment be reconciled?

Putting the phrase ahavat chinam into the Bar Ilan Project’s database yields only one result anteceding Rav Kook (and that one result disparages it).  Perhaps it was just an idiosyncratic, utopian fantasy. 

But ahavat chinam is likely the counterpart of sin’at chinam, the intraJewish hatred that Talmud Yoma 9b blames for the destruction of the Second Temple. Is sin’at chinam also a fantasy?  

The truth is that it’s hard to understand sin’at chinam in this framework. What obligations can hatred impose on the hated, and what commitments can it impose on the hater?  We should note that other definitions of chinam are also difficult to apply here. For example, Second Temple Jewry was rife with substantive political and religious disputes: what better justifications are there for hatred? This question has led commentators through the centuries to suggest other sins as justifications for the second Destruction. At the very least, we can’t easily figure out the boundaries of ahavat chinam just by reversing sin’at chinam.

Another possible source for Rav Kook is Mishnah Avot 5:16’s differentiation of dependent love (ahavah shehi teluyah badavar, perhaps eros) and independent (ahavah she’einah teluyah bedavar, perhaps agape) love. Dependent love lasts only so long as the thing it depends on stays the same. It is not true ahavah, because as Shakespeare wrote, “Love is not love which alters when it alteration finds.” By contrast, independent love is everlasting.  

The Mishnah illustrates this difference by contrasting the relationship of Amnon and Tamar on the one hand, and that of David and Jonathan on the other.

Amnon believes himself to love Tamar. When his lust is sated via rape, he has nothing left but hate for her. We might say that he never loved her at all, only lusted after her; and/or that his claim of love was an attempt to rationalize his desire.

But these do not seem good fits with the Mishnah’s categorization of him as being in “love that depended on something.” What did his love, such as it was, depend on?

David and Jonathan should be zero-sum political opponents. Each embodies the impossibility of the other establishing a royal dynasty. Yet they never act against each other. Their mutual attachment transcends any notion of self-interest. 

But it seems a reach to claim that David and Jonathan’s love was utterly independent. If Jonathan had betrayed David, would David still have loved him? 

If we translate the Mishnah and Shakespeare into philosophic terms, we can suggest that true, independent love does not alter in response to any change in the beloved’s accidental attributes. So long as the beloved retains their identity, they remain beloved. However, a change in essential attributes, i.e. those attributes which define the beloved, is tantamount to the beloved ceasing to exist. 

The difference between dependent and independent love is whether the lover correctly understands which attributes of the beloved are essential. Those who love another for their physical beauty, or their ongoing flattery, or their powerful intellect, do not love the actual person. Often they expand the accidental attribute they love into a false image of the person. David loved Jonathan as he actually was, whereas Amnon loved a Tamar whose attitude toward him existed only in his fantasies.     

Does that mean that Jonathan could never have betrayed David? I am leery of this idea, which suggests that in a sense Jonathan did not have complete free will. That seems too high a philosophic price for me. 

It is true that Rav Dessler famously argues that not all moral choices are “live options,” to use William James’ term. Every person’s “point of choice” (nekudat habechirah) is different.  But Rav Dessler concedes that every individual’s point of choice is movable. Every choice we make affects which future choices are live options.

So we need to decide whether a Jonathan who betrayed David would have changed so radically as to be a different person, or else explain why such a betrayal would not demonstrate that David had misperceived his essence.

A similar question emerges from the great Israeli dayyan Rav Shlomo Dichovsky’s essay “Ahavat Chinam veSin’at Chinam” (Torah Sheb’al Peh vol. 40 (5759).  Rav Dichovsky excerpts parallel accounts of hatred from the Rebbe RaShab of Lubavitch and Rabbi Samson Raphael Hirsch. Here is the Rebbe Rashab:

Sin’ah results from a man’s inability to endure the (existence of the) other. The cause (of this inability) is his own being, which is significant in his own eyes . . . because of his own being, he gives no space for the (existence of the) other, because the other necessarily limits his own existence, and therefore he cannot endure it.”

And here is Rav Hirsch in Chorev:

Sin’ah is the feeling as-if the existence of some other created being stands as an enemy and an obstacle to our own existence.”

and in his Commentary on the Torah:

Ahavah seeks the sustained existence of the other . . . Sin’ah seeks to distance it until it ends.

The Rebbe and the Rabbiner each seem anachronistically familiar with Jean Paul Sartre’s idea that “Hell is others.” But they assume that hell is not inevitable. One can instead live in The (Truly) Good Place by diminishing the significance of one’s existence as an ego-self, or else by coming to see one’s individual existence as expanded rather than diminished by the existence of others.

Rabbi Dichovsky takes the second approach. Ahavat chinam is a love that sees the other’s existence as a bonum per se, as a good independent of anything the other does.

So we must ask, as we asked regarding David and Jonathan: Does ahavat chinam mean that the relationship cannot be affected by any moral judgement of the other’s choices? If my attitude toward someone else can be affected by their choices, does that demonstrate that my love for them is teluyah badavar?

The same question arises out of the haftorah for Shabbat Shuvah. Hoshea 14 begins with the prophet in his own voice urging the Jewish people to return to G-d (shuvah Yisroel ad Hashem Elokekha . . . veshuvu el Hashem). The prophet then ventriloquizes ideal Jewish statements of repentance. Finally, he ventriloquizes G-d’s response:

Erpa meshuvotam = I will heal their strayings;

Ohaveim nedavah = I will love them nedavah;

Ki shav api mimenu = for My anger has receded from me.

What is ahavat nedavah? A nedavah is a voluntary sacrifice, and in general lehitnadev means to volunteer. Rashi accordingly comments: “Even though they are not fit for love (ראויים לאהבה), I will voluntarily commit to loving them (אתנדב לאהבם).”

It seems to me (and perhaps to the author of the Daf al Daf anthology to Shabbat 151b) that there is a direct line of descent from the Biblical ahavat nedavah to the Rabbinic ahavah she’einah teluyah badavar to the contemporary ahavat chinam. Yet Hoshea represents G-d as declaring ohaveim nedavah only after the Jewish people repent and return to Him, which seems very much to make this love dependent on our choices. (Some midrashim even read nedavah as reflecting the Jews’ willingness to sacrifice themselves for G-d, so that G-d loves us because we are willing to volunteer.)

Rashi responds to this problem by suggesting that, having sinned, we cannot make ourselves worthy again of G-d’s love, so that even after we repent, He must choose freely to love us. 

But with enormous hesitation, I suggest a different approach, which I believe is rooted in Yoma 86b’s understanding of this verse related to a situation in which we “repent out of love,” meaning without regard for consequences, rather than out of fear of punishment. Perhaps the verse intends to emphasize that G-d’s love for us was always nedavah, and that it is G-d’s underlying, unchanging love of us that enables Him to accept our repentance.

In Rav Kook’s ideal world, free love exists among all Jews, and among all human beings. Like G-d, Who voluntarily brought all other beings into existence, we should see the existence of others as necessarily expanding rather than constricting our own. 

But this does not mean that we cannot hold each other accountable, or that our outward actions must always be clear expressions of love. “There is a time to (express) love, and a time to (express) hate.” Hoshea acknowledges that there are times when G-d’s expresses anger at us, so that His love is revealed only when His anger recedes.

The challenge, in private life, in religion, and in politics, is to ensure that even the most profound moral disagreements do not overwhelm our own recognition that our existence is enriched by the existence of all other human beings, and to convey convincingly to our baalei plugta that our deepest wish is reconciliation rather than victory.  

by Rabbi Aryeh Klapper

Question:

Dear Rabbi,

I grew up in a family of Orthodox Jews, although not all of us were observant. My uncle used to joke that “the shul he didn’t go to was Orthodox.”  I thought that was odd, but now, because of COVID and my being high-risk, that’s me! The shul I don’t go to is Orthodox.

My sister is in the same position as I am, and because neither of us wants to be alone on Rosh HaShanah, I’m going to stay with her in a city several hours drive away from where I live.  Here’s my question: I remember being taught in seminary that if you can’t go to shul, you should daven the Amidah at the same time that your shul does. My sister’s shul starts and ends a lot earlier than my home shul does. Which shul’s timing should I try to match?

Sincerely, Janie Doe

Teshuvah:

Dear Janie,

Thank you very much for asking! I suspect that your question is relevant to many people this yom tov. I hope it also gives us the opportunity to explore the vital question of what “shul community” means in the age of COVID.

Your very accurate seminary memory comes from a story on Talmud Berakhot 7b. Rav Nachman was absent from shul one day, and Rav Yitzchak challenged him aggressively. “Why weren’t you in shul?” “I wasn’t able.” “Why didn’t you at least gather a private minyan?” “It was too much bother.” “So why didn’t you have someone come tell you when the tzibbur was davening, so you could daven at the same time?”

Here Rav Nachman was puzzled: Why would davening at the same time as the tzibbur matter? Rav Yitzchak responds (rabbis bring various Biblical prooftexts) that one should pray in an eit ratzon, a time of Divine favor, which Rav Yochanan citing Rabbi Shimon bar Yochai interprets as “at the time that the tzibbur is praying.”  

Which tzibbur? Netziv in Meromei Sadeh argues that the story indicates that a local tzibbur is necessary – otherwise, why would Rav Nachman need special notification? Somewhere in the world a tzibbur is davening!  This position is also adopted by the Steipler Rav in Kehilot Yaakov. He finds a precedent for the idea that a local tzibbur is critical in the position of Rabbi Yehudah in Mishnah Berakhot 4:7 that “wherever there is a chever ir (=citywide prayer fellowship), individuals are exempt from praying mussaf.”

However, on Talmud Avodah Zarah 4b, Rav Yosef warns individuals against praying mussaf during the early morning hours of the first day of Rosh HaShanah because it is an unfavorable time. The Talmud asks: If so, how can individuals pray Shacharit during those hours?! The response is that the individuals will be praying Shacharit at the same time as the tzibbur.  Rabbeinu Tam in Tosafot understands this to mean that whenever during those three hours the individual prays Shacharit, they will be praying at the same time as a tzibbur somewhere. 

The numerous attempts to reconcile these sources center on a distinction something like this: One can pray with a congregation without joining in the prayer of the congregation. Praying with a congregation is enough to avoid the negative concern of Rav Yosef, but not enough to meet the positive requirement of Rabbi Yochanan. Praying with a congregation can happen even if the congregation is distant, but one can only join in the prayer of a local congregation.

If we accept this approach, then it seems that the right answer is for you to pray at the same time as the shul in your sister’s town, which will allow you to pray with that tzibbur and to join in its prayer.

However, I prefer a different approach.

The last unit of Mishnah Rosh HaShanah records a dispute as to whether a shaliach tzibbur can fulfill the prayer obligations of individuals.  The anonymous first position says no, while Rabban Gamliel says yes. Many interpreters understand them to be arguing only about people who are able to pray on their own; even the first position agrees that the shaliach tzibbur can fulfill the obligation of people who are unable to pray independently. The consensus halakhah follows Rabban Gamliel only on Rosh HaShanah and Yom Kippur (possibly only Yom Kippur of Yovel), because prayers on those days were too long for individuals to handle on their own, especially before printing made machzorim widely available. 

The obvious problem is that because “All Jews are guarantors for one another,” any obligated individual can fulfill the obligation of any other individual to make a mitzvah -blessing. Why is prayer different?

RAN answers that “it seems reasonable for each person to pray for themselves.” Okay, but then why does Rabban Gamliel hold that a shaliach tzibbur can fulfill an individual’s obligation?! Why should the presence of a minyan overcome RAN’s rationale?

One possible answer is that the mechanism is different once a tzibbur is involved. The shaliach tzibbur does not substitute for the individual; rather, the shaliach represents the tzibbur, to which the individual belongs.        

With this distinction in mind, let us turn to the remarkable understanding of Rabban Gamliel’s position offered on Talmud Rosh HaShanah 34b by Ravin, citing Rabbi Yaakov bar Idi citing Rabbi Shimon Chasida. Ravin contends that according to Rabban Gamliel, the shaliach tzibbur fulfills the obligation only of the am shebesadot (=the masses in the fields), because their work is so all-consuming that their absence from shul is involuntary (anoos). In other words, the shaliach tzibbur fulfills the obligations only of individuals who are not in shul!  Tur OC 591 reasonably extends this category to those too elderly or too sick to come to shul. 

Ravin’s position is cited by RIF and ROSH, but not by RAMBAM. According to Rav Yosef Caro’s self-declared principle that the halakhah follows the position held by the majority among those three decisors, we would expect that Shulchan Arukh would cite Ravin – but he does not. Even more confusingly, Shulchan Arukh OC 128 cites the principle that “the people in the fields are consumed with work” to allow them to be included in the Priestly Blessing despite their not being present!

Since by his own rules Shulchan Arukh should follow Ravin, and since he does not explicitly reject Ravin, I suggest that he simply thought that the category “masses in the fields” was no longer relevant on Rosh HaShanah, since the Jews were no longer primarily agricultural in lands where every second was critical around Rosh HaShanah, so that one stayed in the fields to restart work the moment yom tov was over.  If this is correct, Shulchan Arukh (and perhaps even RAMBAM) would agree with Tur that the principle applies to the elderly and sick. This is also how Rav Schneur Zalman of Liady rules in his Shulchan Arukh HaRav.  On that basis, I am comfortable saying that according to halakhah, those who are prevented by the pandemic from attending synagogue, and cannot pray on their own, have their obligation fulfilled by the shaliach tzibbur. Even if they can pray on their own, they are nonetheless also included in the prayer of the tzibbur, certainly if they make the effort to pray at the same time as the tzibbur.   

This brings us back (finally) to your question – which tzibbur? Here I think a beautiful idea emerges from a thesis of Rav Moshe Shternbuch in his Teshuvot veHanhagot 5:43:

One needs to designate not only a place/makom to pray, but also a community/tzibbur . . .  

In the Talmud at the end of Rosh HaShanah (35a) they say that the masses in the fields, who are compelled (not to be in shul), fulfill their obligations via the prayer of the shaliach tzibbur.

It seems correct that this is when they bind themselves together to pray together regularly, that then the prayer of the shaliach tzibbur is effective for someone who is compelled not to come, because he is attached to his tzibbur, and the shaliach tzibbur prays on behalf of the entire tzibbur.  Therefore, if he has no regular tzibbur, if he does not come – he does not have the prayer of the shaliach tzibbur to elevate his prayers, and he loses much.

In my humble opinion, Rav Shternbuch is correct that the core issue is not location, but attachment to community. I think that is why Rav Yitzchak insisted that Rav Nachman pray at the same time as his usual tzibbur, not because he happened to be in that place. 

So, bottom line – I think you should pray at the same time as your home shul.

But I want to offer a cautionary note. 

Rav Shternbuch offers a thin sense of community – the prayer of the tzibbur is only for those who pray together regularly as a tzibbur.

Our shuls today are, at their best, communities that pray, not merely prayer communities. The sense of community is built up by many things: volunteering, studying, chesed, and many other human interactions. 

COVID means that many people belonging to those communities – men and women, some of whom were previously regular minyanaires, and some who were not – are compelled not to pray with their tzibbur. I believe that nonetheless, the shaliach tzibbur remains davka their representative, davka on the Yamim Noraim, when we pasken like Rabban Gamliel.

But this is true only while they remain a part of the community.  In a shiur I gave at my home shul, Young Israel of Sharon, my learning community came up with at least two possible standards for belonging to a community: being someone who is missed in shul (as Rav Yitzchak noticed Rav Nachman’s absence), and bring someone who other people in the community would instinctively identify as belonging. By those standards, many COVID davening-exiles will rapidly cease to belong unless we consciously develop thicker communities that can endure the absence or enforced attenuation of davening together. People who were socially marginal, and whose human interactions occurred largely around davening (Shabbat and/or weekday), will be the most vulnerable to disappearing. This would be a terrible Jewish and moral failure.

The opening of Parshat Nitzavim demonstrates that a covenantal community includes both those who are present and those who cannot be. Let us pray together, and work together, to ensure that our prayer communities live up to that model and emerge from this pandemic stronger than ever.