Emile Durkheim, the sociology of religion, and Sefer Shmos

I have been meaning to do a post on this for about three weeks, but have not had time to finish reading up on the topic to be completely coherent. Since I will be taking a break for a few days next week and the narrative in Sefer Shmos is rapidly coming to the point of the Exodus, here goes my incoherent rambling anyway. Thinking about Sefer Shmos got me interested in Emile Durkheim, considered the father of sociology, a field I never bothered with (trying to change that by working through Steven Lukes’ book) and know nothing about (knowing nothing never stopped me from writing before, so it won't now : ) I see a fundamental difference between the religious experience of Sefer Braishis, which primarily devotes itself to the individual - the personal relationship of Avraham, Yitzchak, Ya’akov, with G-d - and the religious experience reflected in Sefer Shmos. True, Moshe as an individual plays a key role, but the book is not about Moshe, but about the Jewish people as a nation, as a society, having a relationship with G-d. Durkheim is one of the first who defined religion as a social phenomenon - not just a means to worship G-d, but a force that reinforces the shared values of the social unit. Durkheim was not a believer himself, and thought that the totality of religion was no more than this collection of shared social values, but one need not go that far to accept the fundamental idea. The words “sociology of religion” that Durkhein used make no sense in the context of Sefer Braishis; the theme becomes relevant only from Sefer Shmos onward. Perhaps the focal point of mattan Torah only emerges in Sefer Shmos because it only makes sense in a social framework.

What Durkheim wrote a work called “Division of Labor in Society” in which he contrasts the unity created by mechanistic societies, where everyone does the same task and lives within the same social framework, e.g. a community of self-sustaining farmers, and the “organic unity” created by modern society where there is a division of labor with different people doing different jobs. I can’t help but wonder if this is also part of the undercurrent of Sefer Shmos – the solidarity of the Jewish people as a nomadic family in Sefer Braishis transformed to the solidarity of a simple mechanistic slave society, transformed yet again to the hope of an organic society in the Land of Israel. Durkheim further contrasts the nature of law in a mechanistic society, which serves to punish wrongdoing, with law in an organic society, where law exists to govern the relationships that exist between the different roles people take on. Coincidence or not that the transformation of the Jewish people out of the mechanistic slave role is accompanied by G-d’s revelation of a new set of laws?

I feel like a kid who has found a new set of toys for his (intellectual) sandbox, but I may be playing rough with fine ideas. Any sociologists out there who care to comment or point me in the direction of more reading?

safeik derabbanan and rov

Earlier this week I posted the Bais haLevi’s distinction between the rule of safeik derabbanan l’kula and the rule of halacha k’divrei hameikel by dinei derabbanan. The sugya in Eiruvin 46a debates whether we can pasken l'kula like a da’as yachid, a single isolated opinion against a majority, in dinei derabbanan, or we only pasken l'kula when it is an argument of one opinion against one. I think it is obvious that a rov can be used to decide a safeik derabbanan, so why would Rava think that a majority opinion rov, acharei rabim l’hatos, does not apply? Based on the Bais haLevi, I would suggest that this is another point of distinction between the rule of safeik l’hakeil, which can be influenced by a rov, and the rule of halacha k’divrei hameikel, which works even against a rov. You could argue that I am conflating two different types of rov and try to distinguish between acharei rabim l'hatos (majority opinion) and a regular rov, but I’ll leave it to the comments to see if anyone wants to take that approach.

concern for bracha l'vatalah: bracha on counting 7 neki'im vs. mikvah

Tosfos (Kesubos 72a) asks why a women who counts 7 neki’im until going to mikvah does not recite a bracha before each day’s count just as we recite a bracha before each day’s count of sefiras ha’omer. Tosfos answers that since it is possible that a woman might see dam during that week, forcing her to restart her count from the beginning, therefore “ain lah limnos”. The concluding line of Tosfos is every strange – the question was an issue of hilchos brachos, and we would have anticipated the answer to be that since there is the possibility of losing the count a bracha should not be recited. Tosfos concluding line implies that the possibility of being forced to restart means there is no mitzvah at all to count! The gilyon on the side of the page notes that the Shla”h corrected the girsa to read “ain lah levareich” – she should count, but not say a bracha. Based on this, some woman do have the chumra of verbally counting each day of the seven neki’im just as if counting sefiras ha’omer, albeit without a bracha. Many, however, do not articulate the count, in keeping with our girsa in Tosfos.

There is a gezeirah derabbanan that even after a woman finishes her count of 7 days, which happens the morning of the 7th day (since miktzas hayom k’kulo, part of a day counts as a day, the count is done at the start of the day), she does not go to mikvah until nightfall. Chazal were concerned for the off-chance that a woman would go to mikvah during the day and have relations with her husband and than discover dam before nightfall, rendering her count of the 7th day (and the preceding days) void. The exception to the normal rule is the case of a kallah. Since she is not yet married, there is no concern of the kallah being with her husband until after the wedding, therefore it is permissible for her to go to mikvah during the day (see meforshim on Y.D. 197:4 as I have ignored some details for the sake of simplicity).

The Badei haShulchan (based on an Avnei Nezer) asks: if a woman does not say a bracha on counting 7 neki'im lest she end up seeing dam and having to restart her count, why does the kallah say a bracha when she goes to mikvah on the 7th day before nightfall? There clearly is still a concern of seeing dam, as that is why we do not allow a regular woman to go to mikvah during the day. Why then are we not concerned lest the kallah see dam, rendering her bracha on tevila a bracha l'vatalah? What is the difference between these cases???

praying to hasten death - a disturbing yerushalmi

I am familiar with the opinion of the Ran (Nedarim 40) that it is permissible to pray for a person’s death where an individual is terminally ill in chronic pain and extending his/her life only serves to prolong suffering (aside: I am speaking only of praying – taking overt action to hasten death is tantamount to murder). Nonetheless, I found this Yerushalmi in Shabbos 87b disturbing. The gemara tells of R’ Ada bar Ahava, who had a child born with an arla kevusha, which requires doing hatafas dam bris – blood must be drawn even if there is no foreskin to cut for a bris milah. According to one version of the story cited by the gemara R’ Ada tried to perform the mitzvah and his son died at his hands – a tragic accident. The gemara continues with a different version of the story, which troubles me. In this second version R’ Ada rendered his son a petzu’a daka, making him unfit to marry or have relations. R’ Ada fasted and prayed that his son should die, and his prayer was answered.

I would have thought that there is a difference between a chronic physical condition of pain that cannot be alleviated except through a peaceful death, and a prospective condition that 1) does not yet exist and 2) portends emotional and social stigma but not direct physical pain. R’ Ada’s child had a future as a capable functioning member of society, albeit unable to marry or have children, yet R' Ada thought it better to pray that such a child die rather than grow up with this (major) stigma and burden. Of course I am not in a position to second guess Chazal, but I feel I must be misunderstanding something because the implications of this statement bother me. Any ideas?

sfeika derabbanan l'kula (III) and halacha k'divrei hameikel

This post in a continuation of the discussion started here and continued here, so take a look there first! We left off with a question on the Ran: in the case of grinding spices the Ran subscribes to Tosfos’ sevara that you do not apply sfeika derabbanan l’kula when opposing opinions have both a kula and chumra, yet the Ran is still troubled by why we do not apply the rule of sfeika derabbanan l’kula to reject both versions of R’ Nachman’s statement requiring haseiba by 2 of the 4 kosos – if haseiba is not required for the first 2 kosos, it must be required l'chumra for the last 2, and vica versa, so tbased on the Ran's own reasoning he should agree that the rule of sfeika derabbanan l’kula does not apply?

The Bais haLevi explains that there are two distinct rules that get muddled together as one. One rule is sfeika derabbanan l’kula – if there is an ambiguity as to whether the ma’aseh mitzvah derabbanan has been performed properly (or been performed at all), or a halachic question as to the parameters of a mitzvah derabbanan, a doubt is insufficient to create a halachic obligation. There is a second unrelated rule that pertains to cases where there is a dispute among Tana’im or Amoraim as to what the parameters of a din derabbanan are. The gemara (A”Z 7) tells us that with respect to dinei derabbanan we say halacha k’divrei hameikel – the halacha follows the most lenient view. A machlokes, says the Bais haLevi, is not the same as a doubt, a safeik. We may be in doubt as to which view is correct, but that is not the same as an ambiguity inherent in the mitzvah itself or the way one performed it.

Tosfos’ rule that we cannot pasken like on side l’kula if it means implicitly accepting a chumra is part and parcel of the rules of psak – it is a qualification of the rule of halacha k’divrei hameilel. However, it has nothing to do with the rule of sfeika derabbanan l’kula.

The Bais haLevi argues that the gemara of 4 kosos, where the issue is not choosing which of 2 opinions to rule in accordance with, but simply a question of determining the correct version of what a single Amora, R’ Nachman, actually said, calls for an application of the rule of sfeika derabbanan l’kula, not halacha k’divrei hameikel. Even if there is chumra as well as kula implications, we have a right based on sfeika derabbanan l’hakeil to pasken like both kulos simultaneously (if not for the fact that doing so would eliminate the mitzvah of haseiba).

The Bais haLevi used this logic to take aim at those who wished to be lenient regarding shmita based on the following reasoning – since there is a dispute between the Rambam and the Geonim regarding the correct count of years, and shmita is derabbanan, therefore on any given year we could say sfeika derabbanan l’kula and not observere shmita. Using sfeika derabbanan l’kula in this way, notes the Bais haLevi, would result in cancelling a mitzvah, so the rule does not apply. Secondly, the proper rule to apply to a dispute should be halacha k’divrei hameikel, but that rule too does not apply where each opinion has a chumra of keeping a certain year as shmita along with a kula of rejecting the count of the opposing opinion.

sefeika derabbanan l'kula

Continuing from yesterday’s post, we left off with a question of why if you missed drinking a cup b’haseiba we do not apply the principle of safeik derabbanan l’kula according to some Rishonim and excuse you from redrinking. The Bais HaLevi points to a gemara in Beitza that sheds some light on the issue. The gemara (Beitza 14) offers two reason why grinding salt on Yom Tov must be done with a shinuy, but grinding spices not: 1) all dishes require salt and it could have been ground the day before; not all dishes need spice and one could not anticipate the need; 2) spice loses its flavor if left standing after being ground; salt does not. There are practical differences between these views: what if one knows in advance that one is cooking a dish that needs spices (according to reason #1, the spice would have to be ground in advance; according to reason #2 not), or what if one is working with a sharp spice that does not lose its flavor (according to reason #1 it still can be ground on Yom Tov as its use was unanticipated; according to reason #2 it must be ground in advance)? Tosfos paskens that we are machmir in both of these cases and require the spice be ground in advance. We do not apply the rule of sfeika derabbanan l’kula here because each reason carries with it both a kula and a chumra – knowing the dish in advance creates a chumra according to reason #1 but a kula according to reason #2, using a sharp spice creates a kula according to reason #1 but a chumra according to reason #2. Either reason is as much a chumra as a kula! What is interesting, notes the Bais HaLevi, is that even the Ran subscribes to this reasoning of Tosfos.

Returning to the case of 4 kosos, the gemara had two versions of R’ Nachmans statement: the first version requires haseiba in the first 2 kosos but not the last 2; the second version requires haseiba in the last 2 kosos but not the first 2. Each version of R’ Nachman’s statement carries with it a kula regarding 2 cups, and a chumra regarding 2 cups. Shouldn’t this case be identical to the case in Beitzah!? In fact, says the Bais haLevi, this is perhaps why Tosfos and Rosh disagree with the Ran and do not consider sefeika derbbanan l’kula here and require haseiba l'ikuva by all 4 cups!

Hopefully this has not been too confusing, because now we are back to square one. Tosfos equated the sugyos in Beitzah and Pesachim and did not apply sefeka derbbanan l’kula in either one. The Ran, however, adopted Tosfos' opinion with respect to the sugya in Beitzah regarding grinding spices, but in Pesachim, even though each statement of R' Nachman is both a kula and a chumra combined, the Ran is bothered why the gemara does not use the the rule of sefeika derabbanan l’kula to reject both statements. Clearly, the Ran saw some difference between the two sugyos. Homework question for Shabbos is to figure out what that difference is...
(if you want to see this inside - Bais HaLevi vol 3, 1:9)

what being a Torah observant parent is all about

Robert Coles, professor of psychiatry and medical humanities at Harvard Medical School, after describing some of the tragic cases that have come his way caused by children raised with no moral guidence and direction, writes in The Moral Intelligence of Children, p.58

What ought to be, might be done on their behalf? I'm all in favor or trying to be of emotional help, cognitive help...But after the courses are over, and the therapeutic sessions end, there are those endless hours that await our children - and their questions ought to be ours: Where are the grown-ups in our life upon whom we can really rely, whom we can trust, whose values are believable, desirable, because they have been given us out of a moral companionship that has been experienced - a daily context for the expressed shoulds and should-nots, the injunctions that have been pressed upon us?...

The conscience does not descend upon us from on high. We learn a convincing sense of right and wrong from parents who are themselves convinced as to what ought to be said and done and under what circumstances, as to what is intolerable, not at all permissable; parents who are more than convinced, actually - parents who are persuasively at the ready to impart to their children through words and daily example what they hope to hand on to them; mothers and fathers who eagerly embrace such a duty. Without such parents, a conscience is not likely to grow up strong and certain.

Is there a more apt description of what being a Torah observant parent and fulfilling the mitzvah of 'Vshinantam l'vanecha', teaching one's children, is all about? Coles continues, p. 178:

No wonder so many Americans go eagerly, routinely, to churches and synagogues. No wonder even agnostic and atheist parents have told me (and they tell their children) that it truly matters for one to have beliefs and ideals - that we must stand in awe of this existence granted to us so fatefully, even as we probe harder and harder to gain mastery of the world around us.

safeik derabbanan l'kula: 4 cups and haseiba

On Pesach night we drink 4 cups of wine in remembrance of the 4 expressions of geulah, redemption, used in our parsha (Rashbam). These cups must be drunk b’haseiba, while reclining, but there is some ambiguity as to which cups this is required for. The gemara (Pes 108) quotes two versions of a statement of R’ Nachman, one stating that the first 2 cups require haseiba, and one stating that the last 2 cups require haseiba. Since the tradition is unclear, we recline for all 4 cups.

The Ran asks why we do not apply the rule of safeik derabbanan l’kula to this case – when in doubt about a Rabbinic law, one has the right to be lenient, therefore with respect to any of the cups since there is a doubt if haseiba is required at all, we should assume it isn’t. The Ran offers two answers: 1) Since it is not burdensome (tircha) to recline, why not do so if one is able to (based on Rashi); 2) If one is lenient regarding haseiba for both the first and last cups one has completely negated the mitzvah, which cannot be done. Based on either reason, if one inadvertently drank a cup without haseiba one would not have to redrink – in such a case the drinking of extra cups does become a burden, and if one misses haseiba by accident it does not change the ideal halachic requirement of ideally drinking b’haseiba, which was the concern of the second reason.

The Bais HaLevi (III:1:9) notes that many Rishonim (e.g. Tosfos, Rosh) disagree with this conclusion and hold that if one drank without haseiba, one would indeed be required to redrink the cup, whichever one it is. Why do this Rishonim not apply the principle of safeik derabbanan l’kula to this case?

intelligence testing and schooling

On my train home Friday I met a parent with a child in a school different than my daughters who was bemoaning the policy of requiring a school psych eval on kindergarten kids before they could advance to the next grade. My daughter’s school has the same policy, and I was therefore intrigued by Charles Murray’s op-ed in today’s Wall Street Journal on the topic of intelligence and schooling. I am generally opposed to forcing testing on parents for a number of reasons (aside from the fact that the cost is passed directly to parents but the schools generally refuse to give you a copy of the eval). My wife and I have come across more than one person in various schools reviewing scores who have been simply ignorant as to how to interpret testing scores properly (full disclosure: I have a graduate degree in ed, but the truth is any parent who makes an effort to become informed can, in my opinion, become more knowledgable in these areas that many teachers). A 100 on an IQ test is not like a 100 on a school test – 100 is simply an average score based on the test being normed among a large population. How far your score is from the norm is a measure of how far statistically you differ from the average member of the population. The magic question is how much deviation is statistically significant and what impact the degree of deviation has - a score of 95, for example, is not a significant deviation and no matter how hard your school preaches that your child is below average, that is simply a lie. Just to show you how far the twisting of ideas goes, note this sentence from Murray: “Today's simple truth: Half of all children are below average in intelligence.” This is supposed to come as a shocker, but it leaves me scratching my head and saying “Huh?” If intelligence is an average measure, by definition half the population will have below average scores and half above average! This statistical silliness is child’s play compared to what some schools do with test evals – beware! The second problem with testing is that the schools rely on a single evaluator to make all determinations, and that evaluator has a financial exclusive with the school. Is that truly an independent assessment of a student, and is it holistic? Not really. These evaluations will result in large numbers of students referred to the district or state for special ed classes (with the parents reassured not to worry as it costs than nothing - it also costs the school nothing and lightens teachers' burderns, but only a cynic would think of that). Logically, since 100 is an average IQ score, there should be as many students in need of advanced work and enrichment because they have high scores as students in need of remediation, yet I am not aware of any programs of these type offered in yeshivos or students referred outside the school for them. Finally, I wonder to what degree low IQ really need be an obstacle to success in school if teachers work to engage a fuller range of students’ abilities than the narrow subset measured by IQ tests (Howard Gardner is a good read on this; it is too complex to address here).

Murray did get me thinking about the system of Bais Medrash learning most teens are forced into – given that haf the population will inevitably have below average IQ, does it make sense to force teens into programs that demand rigorous reading and cognitive analysis that they simply cannot perform? Might it not be better to design programs that offer a range of learning experiences so a student can find success on his/her own level?

Martin Luther King Day in yeshivos

So what will your kids learn in yeshiva today about the meaning of diversity? I can hear the laughter even asI write this. I'm not a liberal by any stretch of the imagination, but why not devote a day to the topic? The reality is that until most of our kids enter the workforce (and only then if they do so outside the local community) their exposure to African Americans is limited to the janitor in school, the bus driver, the guy who fixes their car or woman who cleans their home, and others they see "out there" but have no real contact with. This inevitably creates stereotyped images. I'm well aware of the Al Sharptons and Jesse Jacksons out there that are not exactly friends of the Jewish community, but politics can be left for others to fight over while we take away the good lessons to be learned.

anonymous blogging and the dangers of nonconformity

A local newspaper has an article on blogging, and Krum, Orthomom, and my wife have already weighed in. I just wanted to add my 2 cents on the issue of anonymous blogging, also recently discussed here and here. From what has been written it seems to me that anonymous blogs are a symptom of a far deeper problem. There are lots of bloggers out there who I find to be insightful, balanced, and intelligent people who seem afraid to attach their names to their opinion because their views would render them persona non grata in certain circles. The Orthodox community has become so insular, so conformist, that any voice of dissent questioning the party line is ostracized, not because it is necessarily disagreed with, but simply because no one wants to be tarred with the brush of being labeled a rouble-rouser, a non-conformist, or associated with someone of that type. When your friend asks who you invited over for Shabbos lunch and you say “Ploni”, who wants to have to defend their association with “Ploni” who holds such-and such views outside the mainstream? And G-d forbid if you hold those views yourself – much better to let things go unsaid, or if said, said by some unidentifiable source.

It’s easy to dismiss views as nonconformist when we can break the world up into simple dichotomies – me, my shule-mates, parents in my kids’ school, all of whom think like me, vs. the rest of the world. But it becomes much harder when people realize that the guy who holds view X is not just some nut “out there”, but is the guy sitting next to them in shule, or their neighbor, or chavrusa, someone who they know is a decent, well meaning, intelligent individual. Attaching faces and names to opinions can help break down some of the stereotypes that society too often reinforces.

The sort of change needed to create a more tolerant environment perhaps needs to start at the top and filter its way down. Why do blogs that second-guess Rabbis proliferate? Show me a Rabbi who is not willing to repond to questions about public policy, who is unwilling to engage in open discussion as to why and how he arrived at his views, who reinforces the culture of conformity rather than a culture of open minded discussion, and I will show you bloggers who may obey in public fearing the taint of non-conformist, but who freely question the system in private. Pick your own recent controversy of many about books/stores/issues being debated in the j-blogspehre, and I think you will find the lack of clear explanation for what the leadership decided fueled the controversy continuing. The amount of second guessing is inversely proportional to the degree of open communication that exists.

If leaders are tolerant of discussion and open to questions without fear of their authority being undermined, then people in the community might feel more open about attaching their names to opinions and comments. I am not a practicing pulpit Rabbi, but one commentator here is and he has a great blog. I don’t know him personally, but I admire his willingness to publicly “go at it” on the internet, putting his opinions on record and defending them against criticism and replying to comments. Ultimately, Orthodoxy demands agreement or obedience to certain tenents, but there is a great difference between an agreement reached by enforcing superficial conformity, and agreement reached through genuine respect and understanding that is arrived at through learning and discussing ideas. The gemara (kiddushin 30b) uses harsh language to describe the initial relationship of teacher and student as intellectual enemies - only the open clash of ideas can lead to true understanding.

she'hechiyanu on mitzvos (II)

The Rambam writes (milah 3:3) that the bracha of she’hechiyanu is recited after milah is completed, yet by pidyon haben (bik. 11:5) it is recited before the pidyon (see yesterday’s post). Is a she’hechiyanu like a birchas hamitzvah that must be oiver l’asiyasan, or not? R’ Soloveitchik explained that there is no contradiction in the Rambam. By the pidyon haben, the bracha of she’hechiyanu is on the act of pidyon, and hence is said before giving money to the kohein. By milah, the mitzvah is not merely the act of cutting, but it is the creation of the state of being a “ben bris”. Only after the milah is complete, and the child has entered that covenant, can the bracha of she’hechiyanu be recited.

Perhaps one can bring proof to this idea from the following machlokes: the BH”G paskens that one who was already circumcised and wishes to convert must have a hatafas dam bris, but Rabeinu Chananel (Tosfos Yevamos 46b d”h d’Rav Yosi) disagrees and holds that such a ger does not require anything. Even though the act of milah was done while such an individual was not Jewish, the fact that they are in a state of being mahul is what fulfills the requirement of being a ben bris as a Jew.

Recall from previous discussion that there are two aspects to the mitzvah of tefillin: the mitzvah of doing the act of donning the tefillin, and the mitzvah of being clothed in the tefillin, which according to the Rambam (tefillin 4;25) envelops one in a greater level of kedusha. According to some rishonim, this latter aspect applies only to the shel rosh and not the shel yad. If that be the case, I was wondering when the bracha of she’hechiyanu would be recited– before donning the tefillin, as the ma’aseh mitzvah applies to the shel yad, or only after the complete chalos of being enveloped in tefillin has been reached and the act is complete?

Johnny Appleseed and keeping your feet on the ground

The halacha is that a kohein working in the mikdash must stand barefoot with both feet on the floor, in direct contact with the ground. I have heard chassidishe torah about our standing barefoot on yom kippur as also being related to this idea of bringing ourselves in direct contact with the earth (sorry, I forget source and details and don't have time to look it up right now).

In describing John Chapman, aka Johnny Appleseed, Michael Pollan writes in "The Botany of Desire", p. 28:

Curiously, a great many stories about Chapman have to do with his feet: how he'd go barefoot in any weather, the time he punished his foot for stepping on a worm (or in some versions a snake). He would entertain boys by pressing needles or hot coals into the soles of his feet, which had grown horny and tough as an elephant's...The recurring barefoot theme underscores the sense people had that Chapman's relationship to nature was special - and not quite human. The soles of our shoes interspose a protective barrier between us and the earth that Chapman had no use for; if shoes are part and parcel of civilized life, Chapman had one foor planted in another realm...

she'hechiyanu on mitzvos

Last week we visited the sofer to order a set of tefillin for my son who will be bar mitzvah this spring. On the way home my wife asked me whether he needs to recite she’hechiyanu. By coincidence, my friend Chaim Markowitz discussed that very topic on his blog last week, so take a look there for the answer. I’ll just add one point that I saw in the quoted in the name of the Rav (Reshimos Shiurim Sukkah, p. 240) :

The Rambam writes in hilchos milah (3:3) that after the milah is performed, the father of the child (mashma: even if someone else does the milah) recites the bracha of she’hechiyanu.

Yet, with respect to pidyon haben, the Rambam writes (bikkurim 11:5) that the father recites the bracha of she’hechiyanu before the money for pidyon is given to the kohen.

So which is it – is she’hechiyanu recited over l’asiyasan, before the performance of a mitzvah, as the milah case indicates, or is it recited after the mitzvah is completed, like the pidyon haben case?

the melacha of binyan

Tosfos (Shabbos 95) asks why if it is permitted to make cheese on Yom Tov, which is a potential issur of binyan, is it not permitted to do construction on your home on Yom Tov based on the principle of mitoch she’hutra l’tzorech hutra she’lo l’tzorech. Tosfos answers that there must be an issur redabbanan of ovdin d’chol which stands in the way.
The Pnei Yehoshua (Beitza 12) suggests a more fundamental answer. Cheese is an impermanent structure, a binyan sha’ah, but building a house is a binyan kavua. A binyan sha’ah was never proscribed as part of the melacha d’oraysa of binyan.
The Minchas Chinuch points out that the assumption of the Pnei Yehoshua that only permanent binyan is prohibited on Shabbos and Yom Tov seems to be a dispute in the Yerushalmi, which those learning the daf recently saw. The Yerushalmi asks how we can derive an issur of binyan from the construction of the Mishkan – since Bnei Yisrael were always traveling in the desert it would be an impermanent structure. The Yerushalmi offers two answers – one answer accepting the premis and holding that even an impermanent structure cannot be built on the Shabbos, the other answer suggesting that since the camp only moved by G-d’s order, when they came to a camp site the intent was to create a permanent environment until told to move.

Did the Jewish people have free choice to accept or reject Moshe?

Moshe Rabeinu is reluctant to accept his mission to act as the Jewish people’s redeemer, and he questions whether the people will believe him or listen to him – ‘hen lo ya’aminu li v’lo yishm’u l’koli’ (4:1). Hashem responds by reassuring Moshe and providing him with signs to demonstrate that he is a true prophet. G-d guarantees, ‘v’shamu l’kolecha’ (3:18), the people will listen, and they will accept the signs as evidence. The Koznitzer Maggid asks how can G-d possibly guarantee such an outcome to Moshe – by telling Moshe in advance that the people will believe and listen to him, doesn’t that remove their free choice not to listen?

(For a similar question on this week’s parsha, see the posting from last year on the Chasam Sofer’s “kushya atzuma”. One other note: this is different than the general question of G-d's foreknowledge vs. free choice because in this case the choice is revealed in advance to a human audience, which makes the problem a bit more complex.)

Hana'ah and kinyanim: kinyan sudar vs. kiddushin

(Apologies in advance for this post being somewhat technical and jargon filled post - I have not yet found a way to make lomdish concepts intelligable in pure English in a succinct way.)

Getting back to the hana’ah questions from Monday that I left hanging, the issue of mishloach manos seems to be the easier one of the two questions raised. I don’t think one should reject the P.T. out of hand because hana’ah is not food – after all, according to some you are yotzei if the mekabeil is moichel and gets nothing! The simplest answer seems to me to be that mishloach manos requires a shiur of something chashuv, as well as 2 distinct items, and the shiur here is lacking. But there maybe more to it – see below.

As far as why hana'ah of having a token gift accepted is sufficient for kinyan sudar but works in the case of kiddushin only where the one accepting the gift is an adam chashuv, David commented, “In the case of chalipin, the hana'a itself does not effectuate the kinyan. The hana'a is needed only to provide the "gemirus da'as" on the part of the makneh to transfer ownership over the object. It stands to reason that even a limited degree of hana'a suffices for this, and therefore even if the koneh is not an adam chashuv, his receiving the gift suffices to establish the makneh's gemirus da'as. In the case of kiddushin, the hana'a itself effectuates the kinyan kiddushin (am I correct?), and perhaps a higher standard of hana'a is required.” I was not sure what he meant by the hana’ah “effectuating the kinyan” in the case of kiddushin, but I am guessing he is driving at a siman/sibah split – by the case of kinyan sudar, hana’ah is just a siman, an indicator, that consent to the deal has been reached. By kiddushin, it is the sibah, the transfer of the ring or hana’ah is the actual cause of the kinyan being closed. To use an inexact analogy, hana’ah is like kinyan kesef; payment for an item is not just a means to indicate your consent to a sale, but is the very vehicle through which the sale occurs. (Whether hana’ah by adam chashuv is a form of kiddushei kesef or a new type of kinyan is an open question, see Rashba, Shiurei R’ Baruch Ber.)

My first impression was to try to distinguish between da’as makneh in the world of kinyanim and the da’as required for kiddushin, which may demand a hight standard. Recall that one can retract from a kinyan in toch k’dei dibbur, but consent to kiddushin is final. Rashi (Kiddushin 3) explains that chalipin is an invalid form of kiddushin precisely because it does not effect the required da’as makneh on the part of the woman, but we know that it clearly does in the case of monetary kinyanim. This approach is a bit hard to digest because other Rishonim (e.g. see Ran Nedarim 30) indicate that the woman does not even require full da’as makneh by kiddushin but passive consent suffices (see Shiurei R’ Shimon Shkop).

After mulling it over some more, it seems to me that a sharper bit of lomdus is in order here. While both kinyan sudar and kiddushin require some form of da’as makneh, kiddushin has the additional requirement of there being a mekadesh, a ba’al, to create the kiddushin. Regular hana’ah is enough when da’as makneh alone is sufficient, but the hana’ah merubah (as the Rashba calls it) of adam chashuv is needed to create a "din ba’al" on the mekadesh. Returning to the mishloach manos case, I would apply the same logic (and David started down this road as well) – it is not enough to get food, but there has to be a meshalaich from whom it is sent (though see our past discussion of that issue here). Hana’ah which occurs m’meila is insufficient to create such a chalos.

Is this enough to solve the original question of the apparent contradiction in R' Zeira's view which was the springboard of this discussion? Maybe I'll fill in the details later...

differing philosophies and backgrounds of R' Yochanan and Reish Lakish

Ya’akov in blessing Yosef refers to “Elokim asher halchu avosay lefanav”, G-d before whom my parents walked (48:15). The Midrash offers two analogies to explain this figure of speech of “walking before G-d” – as a shepherd walks before the flock, or like the elders who walk before princes. What is the difference? The shepherd walks before the sheep to guard and protect them from stumbling; the elders walk before the princes out of respect, but it is the princes who guide the way. The philosophical upshot is a debate whether we rely on G-d to infuse us with spiritual direction and keep us from evil, or do we blaze our own trail to G-d and spirituality follows?
The Maggid of Koznitz interestingly finds the roots of these two views in the personal history of the Amoraim who espoused them. In the Midrash, the former position is taken by R’ Yochanan, the latter by Reish Lakish. R’ Yochanan led a life of consistent righteousness; for him the greatest danger was a fall from his pristine state, and he looked outside himself to G-d for help to keep to the proper path. Reish Lakish, however, was a former robber who repented to became one of R’ Yochanan’s greatest students (B.M. 87). It was his own initiative that brought him to repent, and he therefore was more attuned to the ability of man to create his own religious destiny.
Would I be wrong to say that some would expect this type reading of a Midrash by someone under the influence of the haskala, (see here and here for more detailed discussion), but certainly not from the Maggid m'Koznitz!

hana'ah of having a gift accepted: chalipin, kiddushin, mishloach manos

The gemara (B.M. 47a) presents a machlokes between Rav and Levi whether a kinyan chalipin is done b’keilav shel koneh or keilav shel makneh, using the token of the buyer or seller. The gemara explains the reasoning of Levi that the kinyan is done using keilav shel makneh: the hana’ah (benefit) gained by having his symbolic token gift accepted by the koneh is sufficient consideration for the makneh to consent to the larger deal.
Last post I mentioned the gemara (Kiddushin 7) that even though marriage is normally effected by the groom giving something of value to the bride, where the groom is a very distinguished person (e.g. an aristocrat), the kiddushin can be effected by his accepting a gift from the bride – the hana’ah (benefit) gained by the bride having her token gift accepted is itself of sufficient consideration for the marriage to occur.
The Rishonim (Ramban, Rashba, Ran) point out a discrepancy between these cases – the case of kinyan chalipin applies to any two parties making a deal; the case of kiddushin applies only to a woman whose gift is accepted by a distinguished person, adam chashuv. Why the discrepancy? (Or, to approach the question slightly differently, why does Rav disagree in the former case, but not the latter?)
While you are mulling that over, R’ Chaim Scheinberg quotes a Pischei Tshuvah which suggests that if you give mishloach manos to an adam chashuv, the hana’ah you receive by having your food gift accepted by this adam chashuv allows him to fulfill his mitzvah of mishloach manos by accepting your gift! Yet, no other achronim suggest such an idea – why not?

honored guest or honored host (II)

My wife posted the following:

My husband is (not always) patiently learning with my son in preparation for the latter’s bar mitzvah. When he mentioned what he was learning, I thought I will work it into a discussion of invitations from a Torah perspective. Anyone have some insight into the following?
Megillah 28a. R’ Eliezer declared that he refused gifts and invitations. He would say to those who would invite him, “Do you resent my living? For it says [Mishlei 15:27] ‘Soneh matanos yichyeh’” [One who despises gifts will live.] Rav Zeyra [in contrast] would also decline presents but would accept invitations. He explained, “it is not for my honor but for that of the host that I accept the invitation.”

If you have any ideas, please visit her site to comment. Since she has put me on the spot, here are some initial thoughts to provide some grist for the pilpul mill:

R’ Zeira’s insight brings to mind the sugya in kiddushin of adam chashuv – the gemara (kiddushin 7a) tells us that although normally a man must give something of value to a woman to effect kiddushin, in the case of a very important individual the woman can become mekudeshet by giving a gift to her groom - the act of such an important person accepting one's gift itself bestows hana’ah, benefit, on the giver, which serves to effect the marriage. It is hard to accept that Rabbi Eliezer disagrees with this principle, so how can we distinguish between cases?

Another gemara (Brachos 9b) inform us that one who is someich geula l'tefilla will not come to harm that day. R’ Zeira (note, same R’ Zeira as above!) disagreed, claiming he was someich geulah l’tefillah and was harmed! - he had been ordered to bring a hadas to the palace of the king. The gemara retorts that such an event is not a bad occurrence at all, as anyone would be willing to even pay admission to gain entrance to see a king! R’ Zeira recognized (based on the gemara in Meg.) that accepting an invitation is often more of a benefit to the host than the invitee, so why here did he not recognize that receiving the benefit of an audience before the king outweighed the small gift he had to present?

the judicial and executive powers of bais din - the case of shuda d'dayni

Part of the role of a posek is shikul hada’as, as the literal translation implies, weighing evidence to render judgment. A comment to the previous posts claimed that when all evidence is equal a posek relies on a “less fluid form of “da’as Torah” that calls on the “shikul hada’as of a posek”. I assume the words shikul hada’as in that context are a misnomer and what is meant is some form of intuition that transcends the evidence. As I wrote before, I have no idea what exactly da’as Torah means, but at least with respect to the case of equal evidence there is a concrete gemara that we can look at instead of debating abstractions.

The gemara (Baba Basra 35) discusses a case of 2 shtaros with identical dates, e.g. there exists one document that says Reuvain gave his land to Shimon, and another document that says Reuvain gave his land to Levi, and both documents were issued on the same date so we cannot determine who has the prior claim. In such a case Rav said the land is split between both parties; Shmuel, however,says “shuda d’dayni”. What exactly this means is disputed by the Rishonim. Rashbam writes that the judge evaluating the case must use other criteria than the strict text of the documents to render judgment– e.g. did Reuvain make some prior promise or have some prior relationship with one of the claimants? Rabeinu Tam argues and holds that in this case, since the evidence does not point to either party having a better claim, the judge is given completely free reign to render a decision any way he pleases - the criteria of proof and evidence are not longer relevant, and the final decision can be made by tossing a coin as well as any other means.

How does this position of Rabeinu Tam fit with our concept of justice? Is a coin toss fair? In my brother-in-law’s sefer on Baba Basra he points to a Dvar Avraham (I 1:5) who suggests that Bais Din's authority stems from two distinct sources or roles: 1) the judicial role of arbitrators and interpretors of halacha 2) executive branch authority (memshala) of hefker beis din hefker, akin to eminent domain. The concept of shuda d’dayni according to Rabeinu Tam is not rooted in the concept of justice at all. It is a function of the executive branch authority invested in bais din that allows them to seize properly and redistribute assets as they see fit.

The gemara (Sanhedrin 5a) comments on the bracha given to Yehudah in this week’s parsha, “Lo yasur sheivet m’Yehudah” – this refers to the Exilarchs in Babylonia who lead the people by force of the rod, “U’mechokek m’bein raglav” – this refers to the Nesi’im of Eretz Yisrael, descendents of Hillel, who taught the people. The gemara writes that if license to judge is granted in Bavel it applies equally in Eretz Yisrael, but if license is granted in Eretz Yisrael, it does not apply to Bavel.

Tosfos and many other Rishonim note that we find elsewhere that the opinion of the chachamim in Eretz Yisrael was more esteemed that that of their colleagues in Bavel – why then does the license to judge in Eretz Yisrael not extend to Bavel? Rabeinu Tam answers that the superiority of the chachamim in Eretz Yisrael was with respect to deciding issur v’heter; however, with respect to hefker bais din, the chachamim in Bavel were able to exert greater authority in carrying out monetary judgment. Put in the framework of the Dvar Avraham, the chachamim of Eretz Yisrael functioned better in the judicial role of interpreters of law; the chachamim of Bavel, however, were better able to fulfill the executive branch power of the court, the role of memshala. The power of interpretation does not imply automatic proficiency in the role of memshala.

The Derashos HaRan (Derush 11) discusses at length the interplay between religious law, as arbitrated by Sanhedrin, and social/political law, which in the days of Tanach was under the jurisdiction of the King. Without a king both of these roles must be assumed by the court. The Ran quotes two pesukim which validate the authority of bais din: 1) lo tasur 2) acharei rabim l’hatos. The latter refers to the court’s ability to interpret law in accordance with majority opinion, and applies to all courts at all times. The former, lo tasur, also allows the court legislative authority to enact takanos and gezieros, and is limited to Bais Din haGadol.

In short, bais din wears many hats, some l’chatchila, some thrust upon them because of the absence of other governing authorities like a king. Some of the confusion in dealing with something like a boycott called by Rabbinic authorities in response to chilul Shabbos is figuring out what hat beis din is wearing – is this a halachic interpretation, an executive branch decision for the public good, or some attempt at new legislation – and what is the scope of authority the posek has in each of these distinct roles? My opinion is that those rendering decisions can do more to make themselves understood both in terms of clarifying what role they are assuming as well as explaining the reasoning behind their decisions.

originalism and halacha

Josh M. offers the following comment to the previous post which really deserves its own discussion, so I highlight it here:

The halacha does not come sbout merely because of personal authority and say-so, but rather because someone with sufficient personal authority invokes such to declare a reason for a given halacha (assuming that no one of requisite stature and position argues with him). Your objection seems to be the lack of a teshuvah stating the specific reason for the invocation of the personal authority of The Gedolim, but if the reason exists, the lack of a teshuvah is not so much an impediment to the legitimacy of the gezeirah as it is a source of frustration to those who would like to learn the sugya b'iyyun (The gezeirah against g'vinas akum as discussed in the Mishnah comes to mind as an example of a similar case, despite its difference in that it involves a real Sanhedrin).One could theoretically posit that the reason is insufficient to enact the gezeirah in question and The Gedolim either are mistaken in their reasoning or are overstepping the bounds of their capabilities within the halachic system (for reasons proper or improper), but I would not place those words in someone's mouth without asking for prior clarification.

It seems to me this raises a new interesting point (and I hope I am not misinterpreting Josh!). If someone formulates a halachic position based on sources, proof, and reasoning (whether that reasoning is revealed to the public or not), is that final psak justified by virtue of the authority of the person who arrived at the conclusion ("someone with sufficient personal authority invokes such to declare a reason" as Josh put it), or does the reasoning constitute its own justification? I would suggest drawing an analogy to the Supreme Court ruling on an issue of constitutional law – is the ruling binding because of the authority of the constitution, or because of the authority of the court which has interpreted the constitution in a certain fashion? Isn’t that issue at the heart of the question of originalism? (I am not a constitutional lawyer, and have been meaning to read this book but have not had time, so my analogy may be off). To take the extreme opposite position as Josh, one could argue that halachic conclusions are no more a function of the authority of a posek any more than the law of gravity is a function of the authority of Newton who discovered it.

R’ Tzadok haKohen (Tzidkas haTzadik #90) writes that the Torah, nefoshos of Klal Yisrael, and the physical world are parallel entities; all three are in flux, and the only constant is their relative connection to each other. We believe halacha is eternal truth, but what that eternal truth says is relative to our context of interpretation. In that respect, halacha is very different than a scientific law which is true at all times and places independent of the observer (yes, modern philosophy of science would reject my distinction, but I don't want to debate science now). But does the fact that there is no one eternal fixed standard of truth in all times and places mean we need to invoke the authority of the posek to validate an interpretation, or does the interpretation validate itself relative to the context in which it is presented?

I will add one caveat, and that is if we had a working Sanhedrin which did have a license to legislate, Josh’s approach fits perfectly (and Bill Selliger has hit on this in his comments as well). Legislation can occur behind closed doors (at least in halacha) with the public not given full access to the debate and reasoning behind a law - an enactment is binding simply by virtue of Sanhedrin legislating it into being. But we have no legislative body in halacha anymore, no Congress that exists to enact laws, only a "judicial branch" of ongoing interpretation. We can differ as to how much of an “activist” halachic court we are willing to tolerate, but ultimately, the system of psak and interpretation demands fidelity to the constraints of existing halacha without allowances to simply make new provisions up out of the blue.

Does that mean that Rabbinical authorities cannot implement public policy initiatives above and beyond halacha? Obviously, they can! But in doing so they step out of their roles of formal interpreters of law and into new roles as social and political activists. Does or should that make a difference? Lets leave that one for another time : )

boycotts and halacha

I have had a hard time convincing my son that halacha does not come about because a Rabbi declares it so – proof from from text, mesorah, and reasoning are required, not simply the personal authority and say-so of anyone. This issue came up with regard to various “piskei halacha” regarding boycotts, both of a local store in the 5T as well as the El Al issue. When someone tells me that the “gedolim paskened” that one should not fly El Al because the airline had flights on Shabbos, I don’t think it is out of line to ask what source in halacha is there which dictates that one must avoid patronizing a company which desecrates Shabbos? Can one buy goods made in an Israeli factory open on Shabbos? Can one shop in a store which is open on Shabbos and owned by a Jew, or go to a doctor or lawyer who is not shomer Shabbos? I don’t know of any source that would prohibit any of these actions, unless it falls under mesa’yeia y’dei ovrei aveira, but that seems a bit of a stretch as in all of these cases your business has no direct connection with the act of chilul Shabbos. Yes, there is a mitzvah of tochacha that demands we speak out against transgressors and encourage them to change their ways, but that mitzvah has many detailed conditions not the least of which is a consideration of whether the person will listen, and certainly tochacha does not in and of itself obligate a boycott.

I guess this press release from Agudah partially answers my question,. Apparently the feeling is that supporting El Al is a chilul Hashem and therefore there is no heter even b’makom hefsed. By extension, there should be no heter to fly El Al even for cases of pikuach nefesh either, but that is not made explicit. I'm simply reporting this as is and offering no personal comment other than to ask that if anyone has seen a written tshuvah that I am unaware of from any of those who signed onto the boycott explaining the halachic parameters involved, please get me a copy and I will update this post as needed.

thinking about thinking - creativity, problem solving, and learning styles

One of the books I’m in the middle of reading is Archimedes’ Bathtub, by David Perkins, which is a study of breakthrough thinking. I find the subject of problem solving and thinking skills fascinating and wish my kids’ schools spend more time teaching how to think. You may think that that sounds ridiculous – we all seem to naturally mature and figure out how to think, so why should it be taught in school? But in reality, some of us are better thinkers than others, and this is undoubtedly because we employ certain strategies and problem solving techniques (heuristics) better and faster than our peers. Aside from the techniques that go into regular problem solving (e.g. when a teacher says “think about it” – what does that mean? the student sitting in the back of the room staring out the window probably simply does not have a clue!), Perkins focuses on a special type of thinking to address problems that cannot be solved following a sequence of logical steps. These problems demand a creative leap, an insight – are there techniques that can help foster this type of thinking as well?

An example of these type of problems are the lateral thinking puzzles inspired by Edward de Bono’s research, e.g. by adding only a single straight line to this equation, how could you make it true?
5 + 5 + 5 = 550
Obviously, a linear approach does not work – no matter how you rearrange the terms, 5+5+5 still equals 15. Before you can solve this type problem you need to come up with a different way to view the facts – a creative insight (sorry, no hints!)

Edward de Bono thought lateral thinking could be taught and devised a number of techniques that are quite interesting. I am curious if anyone out there knows of a yeshiva classroom that uses de Bono’s “six thinking hats” technique – that teacher deserves a medal!

What I find amazing and which the book does not touch on is the impact differences in learning style have on creative thinking. Without getting into detail, brain research shows that there are 2 basic variables that determine your learning style: 1) whether your preference is for the concrete or abstract; 2) whether your preference is for sequential or random information. There are various tests that predict your learning style within the matrix of these 4 variables, and of course, I once had to try one on myself and my wife (as an aside: it might be a better shidduch predictor than this). My wife is a definite abstract random; I also have an abstract preference, but have only a very slight preference toward randomness over sequence. I was able to predict in advance that a puzzle in Perkins' book like the equation above that I could solve just by looking at it left my wife confounded, but another problem which took the form of a word story left me lost while she solved it as soon as I was done reading the words.

In my home this is known as the “Walt has a split personality” effect. My wife and I were once both simultaneously reading an Ellery Queen mystery (I forgot the title and apologize if by coincidence I am about to ruin a good read for someone) in which one of the main characters was named Walt. I was almost at the end of the book and was stumped. When my wife got to the same point in her reading she immediately saw that the solution to the mystery was that “Walt has a split personality.” True, I might have been biased because I knew that split personality disorder is extraordinarily rare, but I think the more likely explanation is that her abstract-random bias gave her an edge at the insight I was missing with my more linear learning style.

I recall going to parent-teacher orientation at the beginning of this year and hearing my son’s rebbe talk about how the boys this year will mature and really learn to think. Of course, he provided no detail as to how he was going to foster that process along – I doubt he really thought about it before and probably assumed learning to think is something that just happens with the teacher as a passive observer, not an active participant in encouraging. Aren't the basic skills of problems solving, thinking, and reasoning more worthy of a teacher's consideration and curriculum planning than any single set of facts that he/she might impart during the course of a school year?

is there a din of chatzitzah by tefillin?

The Mishna (Megillah 24b) requires that tefillin be worn directly on the arm and not on top of one’s shirt. Rashi explains the reason for this law is because the pasuk describes tefillin as “v’haya lecha l’os al yadecha”, as a private symbol, but not an outward sign for others to see. If tefillin are worn over one’s clothes they are noticeable; if worn directly on one’s arm and covered by one’s shirt, the tefillin are concealed and private. Other Rishonim offer a far simpler reason for the Mishna – the obligation that tefillin be worn on the arm excludes chatzitzah, any blockage, such as clothing, between the arm and the tefillin themselves. One practical difference between Rashi and the other views would be whether this Mishna applies to the tefillin shel rosh (Rashb"a). According to Rashi, this din is unique to the description of tefillin shel yad; according to other Rishonim (whose view we accept l’halacha) who assume there is a din of chatzitzah by tefillin, the same din would apply both to shel yad and shel rosh. A second potential difference between these views would be if one wore tefillin shel yad over one's shirt but then placed nother covering over the tefillin (Magen Avraham 27:6) - the tefillin meet Rashi's criterion of being a private and not public symbol, but there is still a problem of chatitzah according to all other Rishonim.

Rashi as a ba'al mesorah

Yesterday morning those of us who live in the 5T had the special opportunity to hear a shiur from R’ Ahron Kahn (Rosh Yeshiva at YU) given at Mesivta Rambam. I can't capture the whole shiur in a blog post, but there was one parenthetical comment that the Rosh Yeshiva made which stands as a fascinating point in its own right. R’ Kahn noted that while Rashi sometimes is verbose in his explanation of what seems to us a simple sugya, but Rashi is often silent and offers no comment on complex sugyos that other Rishonim struggle to interpret and which challenge our understanding. Similarly, even in his commentary on chumash we find Rashi often offers no comment on texts that seem to us to cry out for explanation. The key to understanding these lacunae is to appreciate that Rashi's role was not just that of a mefareish, a commentator guiding us through difficult passages of text, but that of a ba’al mesorah, one whose task was to accurately preserve the tradition of textual interpretation that he had been taught and which he viewed as authoritative. Where the mesorah offered a clear guide, Rashi presents a succinct encapsulation of that tradition. However, where the mesorah was unclear, where there existed multiple approaches within tradition to a text and there was not a single dominant approach Rashi felt was authoritative, Rashi is either silent, or rarely, Rashi will quote multiple explanations.
(Any mistakes is understanding this point or properly conveying it are mine alone.)

Seven lean years - or not?

There seems to be a discrepency in the account of the years of famine in Parshas vaYigash. Yosef relates to his brothers that there are 5 years of famine still to come after their arrival until the predicted 7 years of famine would be complete. Yet, we find that at the end of the second year of famine the people sold their land in exchange for seed to plant, implying that that famine was drawing to a close. Were there 7 years of famine or not?

The Ibn Ezra sees no contradiction here. People might still have planted during the famine, as even in the leanest years perhaps some crops grew, or perhaps even withint he 7 bad years there were some years which were better than others. Rashi (47:18), however, assumes that despite Yosef's prediction, the famine indeed did end after two years. Once Ya'akov descended to Egypt, in the special merit of his righteousness the years of famine came to an early end.

Ramban rejects Rashi's interpretation and suggests that even if one accepts the Midrashic view that Ya'akov's presence interrupted the famine, the remaining 5 years of famine still occurred after Ya'akov's death. There must have been 7 total years of famine, argues Ramban, for were that not the case it would mean that Yosef's interpretation of Pharoah's dream as predicting 7 years of famine was erroneous.

I do not understand the Ramban's question. If a prophet foretells punishment, the occurance of the prophecy is implicitly conditional on the people not repenting or not having other merit. We are all familiar with the story of Yonah who was sent to tell Ninveh that the city would be destroyed; that prophecy never came to be because the city collectively repented. Prophecy is guaranteed only if religious status quo is maintained; it does not circumscribe human free choice to change circumstance and avert a decree. Perhaps Yosef's prediction of 7 years of famine was accurate barring the unforeseen descent of his father to Egypt. However, once events conspired to bring Ya'akov to Egypt, the calculus of merit was changed and the decree was avoided. Any suggestions?

(Addendum: After posting this question on the Ramban, it dawned on me that my focus was perhaps too narrow. Yosef is completely confident that the dreams he saw while a young man will eventually be fulfilled even years later, without any doubt that circumstances of the intervening years may negate or modify his predictions. True, according to Rashi when the brothers first came down to Egypt and bowed before Yosef this was a fulfillment of the first dream and led Yosef to conspire to complete the prophecy by bringing the second dream to fulfillment, but the fact remains that Ramban among others disagrees with Rashi's assumption that any aspect of the dreams was fulfilled before Ya'akov's arrival, and the assumption that because one dream is fulfilled the other must naturally follow seems to take much for granted.)