Sunday, August 31, 2008

hidur vs. zerizus

It's Sukkos morning and you are stuck with a non-mehudar esrog, but if you just wait until after davening, you will be able to obtain a mehudar esrog for the mitzvah of netilas lulav. Is it better to fulfill the mitzvah of lulav as soon as possible in a zerizus manner even with a non-mehudar esrog, or is it better to wait to obtain the nicer esrog and fulfill the mitzvah in a mehudar manner at the cost of sacrificing zerizus?

The Gilyon Mahrasha in Yoma quotes the following proof from the Shvus Ya'akov: If the members of a beis av of kohanim are tamei, the gemara (Yoma 6) quotes a machlokes whether tumah hutra b'tzibur and those kohanim can still offer korbanos tzibur, or tumah dechuya b'tzibur and other kohanim should be called to offer the korban in their place. Even though there will be a delay in calling in those substitute kohanim, the gemara assumes that a delayed korban offered b'taharah is preferable to offering the korban immediatly b'tumah. QED, says the Shvus Ya'akov, it is better to delay a mitzvah a fulfill it in a mehudar manner than to fulfill it immediatly b'zerizus in a less than mehudar fashion.

I am not sure I see the comparison between the two cases. If tumah dechuya b'tzibur, offering the korban b'tumah is not just a less than ideal kiyum mitzvah - it is not a mitzvah at all! To take a different example, if one assumes Shabbos is dechuya with respect to a dangerously ill choleh (and not hutra), accomplishing the task of pikuach nefesh by using fewer melachos is not just an ideal, but it is the only permissabel option - to perform more melacha than necessary would be chilul Shabbos. The same is not true with respect to the case of the esrog, where one fulfills the mitzvah of esrog whether done b'hidur or not. Hidur may be an ideal, but is it worth the delay where there is a kiyum mitzvah anyway?

Monday, August 25, 2008

arei miklat

The Torah in Parshas Eikev ascribes the burial of Yosef to the Jewish people even though it was Moshe alone who made sure Yosef’s bones were removed from Egypt and transported to Eretz Yisrael. Rashi explains that “mitzvah nikreis al shem gomra”, it is the completion of the mitzvah which garners credit, and since Bnei Yisrael and not Moshe completed the burial process, they earn the credit.

Someone in shul asked whether this Rashi does not contradict the Rashi in P’ VaEschanan (4:41) which explains that Moshe designated 3 cities of refuge / arei miklat in Eiver haYarden even though those cities would not serve as a refuge until after the additional three cities in Eretz Yisrael were also designated. Moshe wanted to do as much as he could of the mitzvah even if he could not finish the job.

I think there is a difference between the question of who gets credit and the necessity of putting in maximal effort even if one's efforts go unrewarded and unacknowledged. On a deeper level, I think there is perhaps a lomdish distinction between the Rashis. The burial of Yosef called for the accomplishment of a single act; the mitzvah was incomplete until that act is concluded. True, the arei miklat would not serve as refuge until all six cities were designated, but the designation of each individual city was a discrete act and perhaps a mitzvah in its own right.

Carrying this logic a bit further, we can perhaps distinguish two different elements of arei miklat: 1) the shem ir miklat, a status which results from the city being designated; 2) the actual ability of the city to protect a murderer b’shogeg who flees there. The cities Moshe designated fulfilled the former characteristic but not the latter -- they had the status of arei miklat by virtue of Moshe's designation, but did not yet offer protection. Similarly, one might question with respect to other halachos of ir miklat whether they relate to the shem ir miklat or whether they relate to the functional ability of the city to offer refuge. For example, the halacha is that the city of refuge must contain zekeinim, a beis din of some sort (exactly what type is unclear). Is that a defining characteristic of the shem ir miklat, or a condition of the city serving as refuge? The Minchas Chinuch raises a safeik which may hinge on this question: if a murderer flees to a city with zekeinim but then those zekeinim leave, must the murderer now take refuge in a different city? If the presence of zekeinim are a condition of the city serving as refuge, then their absence opens the murderer to fatal harm. However, if the presence of zekeinim serve to establish the shem ir miklat, then perhaps their presence is necessary only at the time of the city’s establishment, but not forever after.

Thursday, August 21, 2008

R' Chaim's yahrzeit

Today, 21 Av, is R' Chaim's yahrzeit. (My son half-humorously asked if we should skip tachanun). Just thought I would pass that along.

Tuesday, August 19, 2008

why shema has no time limit at night but does during the day

The mitzvah of reading kri’as shema at night which we learn from the pasuk of “b’shachbecha” can be fulfilled at any time during the night (on a d’oraysa level), but when it comes to the mitzvah of reading shema during the day, which we learn from the pasuk of “uvkumecha”, the mitzvah can only be fulfilled until the third hour of the day. Why is there a difference between the two?

The Sefer haChinuch explains that Chazal understood “b’shachbecha” to mean any time that people go to sleep. There are a great many night owls who keep late hours and who sometimes retire closer to what most of us consider morning than night. However, rarer still is the person who sleeps in all day. Therefore, Chazal understood “uvkumecha” to mean only the morning hours, when most people wake up.

The Kesef Mishna in Hil Krias Shema raises the same question and disagrees with the Chinuch. He writes that min hatorah there is no difference between day and night – krias shema can be recited all day as well as all night. It is only a derabbanan mandate to finish k.s. of the day by the third hour. His proof: even if one reads krias shema after the proper time, the brachos krias shema can stil be recited. If min hatorah there is no kiyum mitzvah, how could one say brachos? (It seems implicit in his argument that brachos k”s are birchos hamitzvah, an interesting (and debatable) chiddush for another time.)

The Magen Avraham attacks the KS”M. If the obligation of shema applies all day and all night, then there is never a moment during which the mitzvah does not apply. Why then is krias shema considered a zman gerama mitzvah from which women are exempt?

The Sha’agas Arye (siman 12) addresses this question in the midst of a discussion of whether women are chayavos in the mitzvah of zechiras yetziyas Mitzrayim or not. The Sha’agas Arye at first contends that women are chayavos, as the mitzvah can be fulfilled during the entire day and then again during the entire night – there is no time that the mitzvah of zechira does not apply, so it is not zman gerama. However, the S.A. then backtracks. From the fact that women are exempt from reciting shema, which is the means by which we fulfill zechiras yetziyas Mitzrayim, it seems that they have no mitzvah of zechira (otherwise we would expect at least a Rabbinic enactment formalizing some recitation). But why are they exempt? The S.A. concludes that the mitzvah of zechira must in the end be zman gerama. Although the obligation to remember yetziyas Mitzrayim is continuous, in fact, the mitzvah really consists of two separate obligations which happen to coincide and come back to back with each other – an obligation of zechira during the day, which can only be fulfilled during the day, and an obligation of zechira at night, which can only be fulfilled at night. Since each independent obligation is limited in scope to a set period of time, although the gavra, the person, remains under a continuous obligation to remember yetziyas mitzrayim, these are considered independent zman gerama obligations.

The same logic applies to the mitzvah of reading shema. True, a person at any given moment may fulfill the mitzvah of reciting shema - either the shema of day or the shema of night - still, these are two seperate obligations and each one is limited in scope to being fulfilled at only one set time period.

Monday, August 18, 2008

the text of aseres hadibros

On Shabbos my wife wondered about the fact that certain commandments in aseres hadibros are quite verbose, e.g. the mitzvah of Shabbos includes a wordy elaboration on the reason for the mitzvah, while other commandments are stated very succinctly, e.g. lo tignov, where the whole mitzvah consists of two words. My son mentioned that he heard from R’ Y. Perr, the RY of Yeshiva of Far Rockway, who heard from R’ Matisyahu Solomon quoting someone else who he didn’t remember, that the size of the letters on the two sides of the tablets of the aseres hadobros must have been unequal to preseve the physical balance in size. If the mitzvah of Shabbos was written in small writing and the mitzvos of “lo tignov”, “lo tirtzach”, etc. were written in large letters, even though the mitzvah of Shabbos contains more words, it would not take up more space on the tablet, and thus the two halves of the dibros could kept in symmetrical physical proportion.

My wife had an ingenious insight that helps not only explain how proprtion could be maintained despite the difference in word count, but also explains a difficult gemara in Bava Kamma. She suggested that the verbosity of certain commandments was perhaps an embellishment by Moshe Rabeinu (of course, as taught by Hashem, just like the rest of Sefer Devarim), but not actually written on the tablets of the dibros. Perhaps the mitzvah of Shabbos was written in some short, pithy form just like “lo tignov”, but Moshe Rabeinu was told to explain and expand on the mitzvah and provide the details which we read as part of the commandment.

This perhaps sheds light on the amazing dialogue between Amoraim in Bava Kama 54b. R’ Chanina ben Agil asked R’ Chiya bar Aba why the first instance of aseres hadibros does not contain the bracha of “ki tov” (i.e. “l’ma’am yiotav lach” by kibud av, as Rashi explains) while the second dibros do. R’ Chiya replied that before asking him why the dibros contain this bracha, first one must ask whether these words are actually in the pasuk, as he, R’ Chiya, is not sure that they are.

The entire discussion is a pliya. Tosfos (Baba Basra 113) makes the startling claim based on this gemara that the Amoraim did not always know the text of a pasuk in Chumash perfectly. Whatever Tosfos means, such an idea is very hard to swallow – we are, after all, talking about the aseres hadibros! How could R' Chiya not be sure what words are in or not in the pesukim?

Based on my wife’s suggestion, the gemara reads beautifully (see the Kli Chemdah who also suggests this possibility). The Amoraim knew full well what the text of the pesukim in Chumash said with respect to each list of the dibros. What the Amoraim did not know was whether the differences between the first iteration and the second reflect differences as to the actual text engraved on the physical tablets, or whether those differences were simply different nuances in Moshe Rabeinu’s explication, but the text of the tablets was identical. Before asking why “ki tov” appears in the description of one set of tablets and not the other, we have to first ascertain whether these words appeared on the physical tablets at all!

Wednesday, August 13, 2008

two parsha topics: lo tisaveh and siyagim d'oraysa; the mitzvah of yichud Hashem

Some quick he’oros (just in case any of you forget I’m still here : )

1. The Sefer haChinuch writes that the mitzvah of “lo tisaveh” (coveting that which belongs to another) is a protective safeguard; it ensures that a person will not be tempted to steal his/her neighbor’s property. This is not just an exegesis of ta’amei hamitzvos, but creates a nafka minah l’halacha: since theft is prohibited even for a non-Jew, the mitzvah of lo tisaveh applies to non-Jews as well. R’ Yosef Engel in his sefer Lekach Tov questions whether siyagim, prohibitions which exist to safeguard against more severe infractions, are all Rabbinic in nature, or whether a mitzvah or issur d’oraysa can be a siyag. This is a nice example of a siyag s’oraysa.

2. The Minchas Chinuch writes that the mitzvah of yichud Hashem applies to non-Jews as well. The Rama (O.C. 156) famously writes based on Tosfos in Sanhedrin 63 that there is no issur of shituf for a non-Jew, but achronim take issue with this reading of Tosfos. Be that as it may, with respect to the necessity of belief, the Sefer haChinuch writes that even if someone behaves with midos tovos and is otherwise observant, he/she receives absolutely no credit for his/her good deeds absent the foundation of belief. In other words, othopraxy is meaningless without orthodoxy. A footnote in the new edition of the M.C. cites a similar comment of Ramban in his introduction to Sefer Iyov. What is striking about the Ramban is the example he gives – his illustration of a non-believer is someone who believes in “kadmus ha’olam”, i.e. someone who thinks the world has always existed and was not created by G-d. We could get into a whole Moreh Nevuchim / Ramban debate here, but I don’t have time for it.

Thursday, August 07, 2008

aninus, 9 Av mourning, and seudah hamafseket on Shabbos

On erev tisha b’Av we stop eating at shkiya (about 8:00 where I live in NY), but according to most Rishonim the prohibitions of aveilus such as not wearing leather shoes are not observed until nightfall. The Ramban, however, writes that the prohibition of bathing as beginning at shkiya and questions why the R”IF neglects to mention this halacha.

To explain this difference of opinion, the Brisker Rav suggested that mourning which we mark as we enter 9 Av and eat our final seudah hamafseket is patterned after the practices of aninus, the intense period of mourning between death and burial. Chazal poignantly describe how Tanaim would sit next to the furnace in their home, a lowly, isolated place, and eat in isolation, allowing themselves to become fully steeped in the somber mood of the day.

During the period of aninus the mourner is exempt from all mitzvos and is assumed to be completely involved in making the necessary preparations for the burial of the deceased. According to the Rambam the onein is exempt even from the obligations of mourning; the Ramban disagrees and holds that the negative prohibitions of mourning do apply.

The Brisker Rav suggests the dispute regarding bathing after seudah hamafesket as l’shitasam of this dispute regarding aninus. The Ramban who holds that even an onein is obligated in the prohibitions of mourning l’shitaso prohibits bathing from the moment seudah hamafseket concludes and the pseudo-aninus period of 9 Av begins. Rambam (and RI”F, according to the Brisker Rav’s understanding) who exempts an onein even from obligations of mourning does not prohibit bathing until nightfall. [Note: a similar analysis appears in the Keren Orah. The Brisker Rav's chiddush is actually a little different than what I presented here, so please see it in the original.]

The problem with this approach is that it does not seem to fit the words of the Ramban. Ramban tells us why he prohibits bathing – he writes that if one were to shower immediately before the fast, one would inevitably enjoy that refreshing afterglow of feeling clean and refreshed on the fast itself. Therefore, bathing and bathing alone is prohibited from even before the fast starts.

Given the reasoning presented by the Ramban, we perhaps have a new insight into why the seudah hamafseket is limited to a sparse meal. Were a heavy meal to be ingested immediately before the fast, it would lead to the experience of satiation and enjoyment extending into the fast itself, interfering with our experience of aveilut.

R’ Shternbruch in Moadim u'Zmanin (vol 5) goes a step further and suggests that in light of this Ramban we perhaps have an insight into why even on Shabbos we might temper our eating at the conclusion of the day and eat a small seudah hamafseket. The seudah hamafseket is not in and of itself connected with aveilus, but is simply a way to avoid indulging in a way that would lead us to experience the pleasure of satiation after Shabbos is over.

Again, reading the Tur’s presentation of the Avi Ezri’s justification of eating seudah hamafseket on Shabbos (which R’ Shternbruch makes no reference to) does not seem to me to support this approach. The TUr's language seems to indicate that the Avi Ezri’s aim was in fact to mark aveilus in some way - “m’shum churban” - Shabbos notwithstanding. This seems to be part of a broader pattern of practicing aveilus of 9 Av despite it being Shabbos. Two other practices which come to mind: The Rama quotes the minhag to not wear Shabbos clothes on Shabbos Chazon (a practice the GR”A opposed), and the minhag of many communities is to sing “Lecha Dodi” with the kinos tune of “Ali Tzion”.

My hunch is that these opinions view obligations of aveilus as stemming from the character of the day, the kedushas hayom, so to speak, much like the character of Yom Tov creates certain obligations of simcha. Demonstrating aveilus on Shabbos is not just an issur gavra imposed on the individual, but stems from the recognition that the kedushas hayom of Shabbos inherently in antithetical to mourning and sadness. Shabbos is a day of bracha (see Tosfos M.K. 23a quoting Yerushalmi). However, Shabbos Chazon is an exception. The special name we give to this Shabbos is not just to remind us of the haftarah, but perhaps indicates that the kedushas hayom of this Shabbos is different, and is impacted by the mourning period that it falls within. Derech derush perhaps one could say that Shabbos itself is in morning with us.

If our mourning can impact the kedushas hayom of Shabbos, perhaps one might argue as well that the scale can be tipped in the opposite direction and the kedushas hayom of Shabbos can impact our mourning. Perhaps this Shabbos Chazon will be the Shabbos that we will once again experience v'techezeina eineinu b'shuvcha l'Tzion b'rachamim.

Kol hamisabeil al Yerushalayim zoche v'ro'eh b'simchasa...

Wednesday, August 06, 2008

seudah hamafseket on Shabbos?

The Tur (552) quotes the Avi Ezri as holding that on Shabbos immediatly before 9 Av starts(meaning, when 9 Av is on Sunday) the minhag is to eat a regular seudah shlishis and then to eat a seudah hamafesket like on any other erev 9 Av. Even though, explains the Tur, one is permitted to eat meat and drink wine "afilu k'seudas Shlomo" on Shabbos before 9 Av without restriction, who says one has to eat such a seudah? In keeping with the spirit of commemorating churban habayis, one can choose to forgo indulging oneself and instead end the day with a subdued and minimal seudah hamafseket.

The Tur disagrees based on the gemara’s din (Moed Katan 2b3) that a public display of aveilus is prohibited on Shabbos. If one sets out to eat a meal designated specifically to commemorate the aveilus of churban habayis, isn’t that a public display of mourning? The Tur ends the siman by quoting the minhag of his father the Rosh to not eat a seudah hamafseket on Shabbos.

How can one explain the position of the Avi Ezri? Perhaps the A”E considered seudah hamafseket, which the minhag is to eat privately, devarim sheb’tzina, rather than public mourning, and Shabbos does not suspend private mourning.

In a more lomdish vein, perhaps one might explain the machlokes based on the chiddush of the Emek Bracha that the day of tisha b’av is marked by two overlapping themes: aveilus and ta’anis (see Rabbi Maroof’s article here). Each of these halachic themes is demarcated by similar practices of avoiding eating, drinking, wearing shoes, bathing, and having relations (see the Emek Bracha for nafka minos between the two). Within this framework, we might ask how to categorize the seudah hamafseket preceding the fast – is it part of the obligations of a ta’anis tzibur, or is it a special aspect of 9 Av mourning? If seudah hamafseket is part of the obligations of ta’anis, then just as we stop eating while it is yet still Shabbos, we perhaps may eat such a seudah to culminate our preparation for the fast on Shabbos as well. However, if the seudah is part of the obligations of aveilus, it could not be held on Shabbos.

The lomdus sounds nice, but I don’t think it fits the words. The whole point of the seudah (for those Rishonim who opine that it should be eaten even on Shabbos) is to try to demarcate our mourning in some small way even on Shabbos itself. It is for the sake of commemorating churban and not just because of the chiyuv ta'anis.

Monday, August 04, 2008

pregnant / nursing women fasting

This article,7340,L-3575177,00.html cites R’ Nachum Rabinovitch of Yeshivat Ma’aleh Adumim as allowing pregnant (after 5th month) or nursing mother to eat on 9 Av because these women are categorically to be treated as cholos (hat tip to Mother in Israel).

A bit of background: the gemara (Pesachim 54) writes that on Yom Kippur and 9 Av all pregnant or nursing women must fast. The implication drawn by some some Rishonim is that pregnant or nursing women are exempt from fasting on other fast days. The Rishonim differ as to whether that amounts to a blanket dispensation, or whether these women should try to fast and only eat if necessary for their health or the health of the nursing child (see Bais Yosef siman 594).

Someone who is too ill to fast is permitted to eat on 9 Av because the Rabbinic enactment of fasting was never imposed upon someone who is sick.

Having not seen the sefer I am not sure how to understand this psak of R’ Rabinovitch. Does he assume that all women in our times who are pregnant or nursing are categorically defined as “cholos” for whom no obligation to fast exists? I would have thought that if fasting was not risky for pregnant or nursing women living 1500 years ago it, that the risk has declined, not increased, with the advent of modern standards of pre-natal care and nutrition. A more interesting possibility would be to argue that even if the actual risks of pregnancy have not increased, our sensitivities toward what constitutes acceptable risk and good health has changed. 1500 years ago, pre-natal care may not have recognized the risk of fasting, or associated those risks with birth or health complications. Today, we know better. Should we take Chazal’s statement obligating pregnant and nursing women to fast as binding irrespective of these changes in medical knowledge / practice, or should we look at the statement as sensible in the given context of medical knowledge of 1500 years ago, but which may change over time? In other words, in lomdish terms, is the gemara a din or a metziyus -- is it a legal rule that absolutely binds all women to fast, or is the gemara simply a statement about what Chazal assumed to be the lack of health risks in fasting? A legal umdena seems to me to be far more inflexible than a medical one (and even there, I'm not sure).

What do you think?

the Bnos Tzlofchad's marriage choice

Unless you were already privy to the interpretation of Chazal, I think you would read these pesukim (36:6-7) at the end of last week’s parsha
לַטּוֹב בְּעֵינֵיהֶם, תִּהְיֶינָה לְנָשִׁים אַךְ לְמִשְׁפַּחַת מַטֵּה אֲבִיהֶם--תִּהְיֶינָה לְנָשִׁים
to mean that the Bnos Tzlofchad could marry anyone they desired, provided that their chosen spouse was also a member of their sheivet (see Rashbam who presents this reading as pshat).

Chazal, however, interpret the pesukim to mean that the Bnos Tzlofchad were permitted to marry anyone whom they chose, without any limitation on which sheiveit their spouse was a member of. Only other women inheriting a portion were bound by the condition to choose a spouse from their sheiveit alone.

In light of Chazal’s reading, it is interesting to see how the Torah describes the actions of Bnos Tzlofchad:

כַּאֲשֶׁר צִוָּה ה אֶת-מֹשֶׁה, כֵּן עָשׂוּ, בְּנוֹת צְלָפְחָד

What does it mean כַּאֲשֶׁר צִוָּה – there was no command?! Yes, it might have been a good idea for the Bnos Tzlofchad to marry members of their own sheivet given that Hashem expressed this desire with respect to everyone else, but can we call that a “command”?

Apparently, we can! It reminded me of R’ Elchanan’s interpretation (see this post) that Bilam was punished even though G-d never explicitly commanded him not to go with Balak’s messengers because the will and desire of G-d was clear. The understanding of G-d's desire, even absent a verbel command, creates an obligation. (See the Netziv in his Harchev Davar on this pasuk.)

Sunday, August 03, 2008

bas kol and "bais shamai aina mishna"

Tosfos (Yevamos 14) asks how to square the Chachamim’s rejection of the bas kol siding with R’ Eliezer with gemara that tells us that a bas kol was accepted as proof that the halacha follows Beis Hillel and not Bais Shamai. Tosfos explains (in one of the two answers given) that the bas kol in favor of R’ Eliezer was rejected because it contradicted the majority view. The bas kol which supported Beis Hillel’s view was accepted because Hillel’s view was held by the majority. The only debate was whether the view of Shamai should perhaps be given more weight because Shamai was known to be sharper that Hillel.

Apparently, according to Tosfos, all things being equal, we do accept the evidence of a bas kol to establish halacha. It’s only in the context of having a rov that a bas kol is rejected. Contrast that with the Rambam’s statement in Hil Yesodei haTorah ch 9 with respect to a Navi:
או שאמר בדין מדיני תורה שה' ציווה לו שהדין כך הוא והלכה כדברי פלוני--הרי זה נביא שקר
According to the Rambam, it’s not just that a bas kol has no weight relative to rov – a bas kol is completely invalid as proof of what halacha should be.

The question raised in the previous post – why a bas kol outweighs the probabilistic evidence of rov with respect to whether a person touched a frog or sheretz, but does not outweigh the opinion of rov with respect to establishing halachic precedent – is valid only within Tosfos’ model that accepts at least theoretically, all things being equal, the evidence of a bas kol to determine halacha. However, according to the Rambam, the question is moot. Nevuah or bas kol is simply an unacceptable form of proof when it comes to psak.

What remains unclear according to the Rambam (which R’ Elchanan, who suggests this approach, and others struggle with) is why the bas kol which declared the halacha in accordance with Beis Hillel was accepted. Be that as it may, R’ Elchanan has a cute point with respect to the gemara’s statement that “Beis Shamai b’makom Beis Hillel aino mishna”, Beis Shamai’s view is unworthy of consideration. Why don't we find a similar sentiment recorded with respect to any other rejected view of Tanaim? Perhaps the reason is because no other Tannaitic view other than Shamai's was rejected by no less than a bas kol.