Thursday, December 31, 2009

all hands on deck

I had anticipated that most people would want more posts on parsha, as this is one area we share in learning every week, yet surprise, surprise, lomdus is the big winner in the poll. But I can’t ignore parsha, can I? A few gems from R’ Shteinman’s “Ayeles haShachar”:

Commenting on the placement of Ya’akov’s hands on Ephraim and Menasha (48:14), Rabeinu Bachye notes that in many places we see the laying on of hands in particular is connected with bracha, e.g. birchas kohanim, the smicha of Moshe to Yehoshua. R’ Shteinman in Ayeles haShachar uses this as a springboard to address an interesting question: The gemara tells us that R’ Chisda would use more than the required measure of water for netilas yadayim and he attributed his receiving bracha for this meritorious behavior. The Shulchan Aruch (O.C. 158) writes that one should try to emulate this practice and use more than enough water for washing. Yet, we do not find in halacha that being toivel in a mikveh that has more than the necessary 40 se’ah of water is any more meritorious than being toivel in a mikveh that has exactly the shiur. Why the difference? R’ Shteinman suggests that the halacha may be based on the particular connection of the hands with bracha. I don’t know if I’m satisfied with the answer, but I like the question.

Reuvain is told that his haste in disturbing his father’s bed cost him additional bracha: “Pachaz ka’mayim al tosar ki alias mishkivei avicha…” (49:4 ) Yet, we know from a previous Rashi (37:29) that Reuvain did tshuvah for this act. R’ Shteinman notes that apparently tshuvah is not enough to recover the lost ma’alos which Reuvain could have have had if not for his impetuousness.

“Lo yasur sheivet m’Yehudah u’mechokek m’bein raglav” (49:10) Rashi explains mechokek refers to the Nasi in Eretz Yisrael. R’ Shteinman explains that the Nasi is not described with the term “sheivet” because unlike the Reish Galusa in Bavel, the Nasi had no political power to enforce his will. For a more detailed discussion of the differences between these two rulers based on a chiddush of the Dvar Avraham, see this post.

new year -- secular holiday or avodah zarah?

Rav Aviner was quoted recently (link) as saying that wishing “Happy New Year” on Jan 1 is prohibited because the Xstian new year is connected with idol worship and wishing happy new year would be a positive acknowledgment of an idolatrous celebration.

I e-mailed (though I’m not sure I had the right address) the ba’al hablog to see if it was possible to get some more information or clarification on this psak. I am curious as to why Rav Aviner defines the new year as a religious holiday and not a secular or civil holiday. The origin of celebrating Jan 1 as the start of a new year goes back to the Roman Empire, long before the rise of Xstianity. For centuries the Xstian world celebrated March 25 as its new year, not Jan 1. The establishment of Jan 1 as the new year on the Gregorian calendar may have more to do with this Roman precedent than religion. Jan 1 is celebrated as the start of a new year in countries like China, where it seems to be only a secular, civil holiday, as other dates are celebrated as the start of a new religious/traditional year (i.e. Chinese New Year). Interestingly, Wikipedia identifies Israel as the only country that does not celebrate Jan 1 as a new year.

Update -- I received the following reply from R' Friedfertig, who writes up the torah for the Rav Aviner blog, and am posting it with his permission: While it seems that the date was originally established for a "secular" purpose (although it is hard to know if it was not connected to idol worship in some way), in Western countries it is clearly part of the calendar which is related to Christianity. Rabbenu Ha-Rav Tzvi Yehudah was adamant that we not use the Christian date because of its association with idol worship and obviously saying "Happy New Year" would be included in that.

Wednesday, December 30, 2009

brachos, parents and children

1) "Kachem na eilei v'avaracheim" (48:9)
Ya'akov tells Yosef to bring his sons to him and he will bless them.

Rav Amiel (Hegyonos El Ami) beautifully writes that there are many people who believe in the brachos of a tzadik without believing in the tzadik. What does that mean? To run to this Rebbe or that tzadik to ask for a bracha is easy. But what makes those brachos work? It's because the tzadik giving them lives a certain lifestyle in accordance with certain values. If you truly believe those values and lifestyle make a tzadik, then there is no excuse for not aspiring to incorporate them into your own life. But you have a tartei d'sasrei: people will run after the brachos, but reject the values.

When Ya'akov said to bring Ephraim and Menashe to him, he wasn't talking about physical proximity -- he meant that Yosef must first bring Ephraim and Menashe to adopt and appreciate the values of Ya'akov the tzadik, and only then could his bracha, the bracha of a tzadik, have meaning.

2) One other point from Rav Amiel that rings so true: the Torah tells us that Ephraim stood to the right of Yosef which was to the left of Ya'akov, and Menashe stood to the left of Yosef which was to the right of Ya'akov.

Ya'akov and Yosef -- could there be any closer father and son? Yet, the Torah tells us that what to Yosef was right, to Ya'akov was left; what to Yosef was left, to Ya'akov was right... and so it is always between parents and their children.

ne'emanus of an eid echad

In this previous post we left off with comparing the Rambam, who holds that once an eid echad establishes that a piece of meat is cheilev a person can receive malkos for eating it, with Tosfos, who holds that a chiyuv misa cannot be predicated on an eid echad’s prior testimony that a woman’s husband is dead. Is this case identical to the cheilev case?

R’ Shimon Shkop argues that you can be mechaleik. The Torah gives ne’emanus to an eid echad to tell us whether meat is cheilev or kosher. According to Tosfos (Yevamos 88), the ability of woman to remarry based on the testimony of an eid echad is only a takanah derabbanan based on the combined factors of dayka u’minsiba, the fact that a woman would not remarry without verifying and being certain her first husband is dead, and the word of the eid echad (who otherwise would not be acceptable in a case of devar sheb’ervah). It's not that the Chachamim gave the eid echad ne’emanus – rather, the Chachamim said that despite the lack of ne’emanus which an eid echad has, a woman is still entitled to remarry to avoid an agunah situation. If at a later point that situation leads to a question of dinei nefashos, the fate of the first husband is still viewed as an unresolved issue.

Tuesday, December 29, 2009

paradoxical minchas chinuch: safeik pikuach nefesh in the case of a rodef

The Minchas Chinuch has what sounds to me like a paradoxical chiddush with respect to the mitzvah of saving a nirdaf from his attacker (#600). The halacha is ain holchin b’pikuach nefesh achar harov. For example, even if the majority of a city is not-Jewish (and m’dina d’gemara one cannot be machelel Shabbos for a goy), if there is any doubt as to identity of someone who needs help, one should be mechalel Shabbos on their behalf and not assume based on rov that they are a goy. Similarly, the mitzvah of saving the nirdaf only applies if he is Jewish, but, writes the Minchas Chinuch, if there is any doubt, even if the majority of the city is not-Jewish, ain holchin b’pikuach nefesh achar harov and one can do whatever is necessary to stop the rodef, even killing him.

Why does this make sense? True, in a case of safeik, even if there is a rov, we act to preserve life, but in this case we are sparing the life of the nirdaf at the potential cost of killing his attacker, the rodef. Why would we not invoke the safeik/rov and argue to spare the life of the rodef on that basis? And even if it is inevitable that one of the two will die, shev v’al ta’aseh adif, what gives the onlooker the right to interfere in a situation of safeik in a way that will cost a life?

Monday, December 28, 2009

when an eid echad can cause a chiyuv misa

I admit that I’m surprised at how much interest there is lomdish posts based on the little poll posted on the side, but the poll is still open and results can change. Thank you to everyone who bothered to put in their 2 cents -- much appreciated. My guess is people like chakiros and also like being me'dameh milsa l'milsa and making chilukim. Unfortunately for me thinking of sugyos in those terms is very hard to do when one has a regular job taking up most of the day.

The gemara (Chulin 96) offers a proof that eyewitness recognition, teviyus ayin, is stronger proof than simanim: if two witnesses come forward and say they recognize a murderer, their testimony is enough to create a chiyav misa and cause the murderer to receive the death penalty. However, if two witnesses do not recognize the murderer, but identify him through simanim, certain marks or features, that is not sufficient to convict.

Tosfos challenges the gemara’s assertion that the death penalty cannot be given on the basis of simanin with the following case: A woman may rely on simanim to establish that her first husband is dead. If she then remarries and is not faithful to her second husband, she is guilty of adultery and punished. Without the simanim proof that her first husband is dead and she is legally married to her second husband, there would be no way to establish the woman’s guilt (you can't commit adultery if you are not legally married). Therefore, we see that simanim can provide a basis for the death penalty.

Tosfos is forced to conclude that if the death of the first husband is established either through simanim or a single witness alone the adulteress would not be punished.

Compare this Tosfos with the following chiddush of the Rambam (Hil. Sanhedrin ch 16):

אינו צריך שני עדים למלקות, אלא בשעת מעשה; אבל האיסור עצמו, בעד אחד יוחזק. כיצד: אמר עד אחד חלב כליות הוא זה, כלאי הכרם הם פירות אלו, גרושה או זונה היא אישה זו, ואכל או בעל בעדים אחר שהותרה בו--הרי זה לוקה, אף על פי שעיקר האיסור בעד אחד.

If a single witness says that Reuvain ate cheiliev, Reuvain gets no punishment -- two witnesses are needed to establish guilt. However, if a single witness testifies that a piece of meat is cheilev, and then afterwards two witnesses come forward and testify that Reuvain ate that piece of meat, Reuvain would get malkos. Even though we only have the say-so of a single witness that the meat is cheilev, since that one witness is believed before the fact, Reuvain is chayav.

Does Tosfos argue on this Rambam? Is there a difference between convicting Reuvain of eating meat we know to be cheilev based on the prior testimony of only one witness and convicting a woman of adultery based on the prior testimony of only one witness that her first husband is dead and she is legally married to her second husband?

Thursday, December 24, 2009

aval asheimim anachnu

R' Elchanan highlights one pasuk in particular from the parshiyos of Yosef and his brothers as holding a profound moral lesson: "Aval asheimim anachnu al achinu" -- we are guilty for causing what has transpired (42:21). We look at events and wonder why things are as they are; human nature dictates that we assign blame to someone or something else where there is blame to be apportioned and point the finger at ourselves only when there is credit for the taking. Not so the brothers of Yosef -- they recognized that the fault for their suffering rested on their shoulders alone. It's not the economy, stupid, or any other force out there that dictates the fate of Klal Yisrael. It's asheimim anachnu.

I would just add a few points. As the Rishonim point out, the brothers do not confess to being wrong in their judgment of Yosef, but express remorse at not listening to his pleas for mercy. At times we must take unpleasant action, but that does not mean we should savor unpleasantness or be deaf to reconsideration or reconciliation. The brothers realized that even this small degree of callousness carried with it an enormous price.

This expression of guilt is years after the sale of Yosef. Undoubtedly the brothers did not act in haste and did not sell Yosef without careful consideration and deliberation. I don't think there was an expectation that what they did would come back to haunt them in the way that a criminal (l'havdil) has perhaps a sense of foreboding that his crime will be discovered (e.g. Dostoevsky's "Crime and Punishment"). Yet, there apparently is nothing else which occurred in the intervening years which the brothers could attribute their bad fortune to and they were forced to reconsider what they had done. Amazing.

some thoughts on the article on R' Shachter

Thoughts on the Mishpacha magazine article about R' Shachter (linked to it for those like myself who do not subscribe):

1) I am surprised that certain blog writers did not start saying hallel when they saw the article (maybe they did?), as their joy seems boundless over the notion of someone like R' Shachter being accepted by the right (assuming that Mishpacha magazine is a barometer for what is passable in the chareidi world). Is there such a sense of insecurity about modern orthodoxy that the stamp of approval by those in the "other" camp means so much?

2) OK, so you made it into the RW world, but what at what price? I recall a YU Rosh Yeshiva once say that he never saw the Rav open a secular book. Rav Shachter is quoted as saying that he never heard the Rav mention philosophy in shiur execpt once. I was never in the Rav's shiur (he was no longer saying shiur way before my time at YU), but judging his legacy from the fruit it has borne certainly leads me to think that his impact is greater than only the chiddushei Torah he left behind. What of the Talmud shiur at Stern? Religious Zionism? And that just scratches the surface. Is it worth forgetting about all that for the sake of acceptance?

3) And who are those applauding the article so happy to be accepted by? By other shallow people who would otherwise reject the Rav if they had a more complete picture of his legacy? Lo heim v’lo scharam. I reject as equally silly those who view (as expressed in comments to some of my posts) the opinions of R’ Elyashiv and other “chareidi” gedolim as irrelevant to their MO world and those who view the Rav as treif or call him JB because he does not fit into their expectations. Why should those of us who respect the Rav as a gaon (which it is possible to do even if you disagree with his stance on each and every issue) care whether some segment of the community closes themselves off to his voice? It’s their loss, not ours. I guess it matters to you if you are concerned with the politics of the community as a whole and feel that you need to raise your voice and demand acceptance by the public, but I that is largely a wasted effort and the energy can better be spent doing other things. Of course, I have no pulpit and no public position, no children to marry off at the present time, or any other similar concerns, so I am free to care less what other people think, but I'm in no rush to change : )

4) In general, my family does not read Mishpacha and I try to keep other Jewish newspapers away except as needed for certain ads (for the sake of shopping or my wife's business). Why? Because if I read the NY Times and get upset at its bias, its shallowness, its politics, I just dismiss it as the nuts at the Times. But if I read a Jewish publication and see the same politics, shallowness, bias, and other nonsense, it's the nuts in my backyard, and I feel the pain of being part of a community that celebrates this low level of discourse and builds readership by providing more and more of the same. Why should I invite this stuff into my home to just get angry or depressed? For example, a few weeks ago a newspaper that I thought was a little better had an article which described certain chassidism as "hooligans". Whatever the point being made was, couldn't it have been made without using that word? It's not hilchos lashon hara that should be the only concern, but also the idea of saying "lo tahor" instead of "tamei", the tone of writing. I try to toss that paper in the garbage if I see it in the house. And I haven't even gotten started on the topic of the crass materialism which is marketed to the "frum" consumer. Maybe the article on R' Shachter is nice, but I would not subscribe to a publication on the basis of one article any more than I would buy a TV for my home because PBS sometimes has a nice program on. Maybe I'm just a fanatic, but that's how I see it.

why no "aseh doche lo ta'aseh" by gezel? (II)

I posted a poll on the side to see what topics people like best. I have my hunch, but let's see what you have to say.

Getting back to our story, why is it that you don't say aseh doche lo ta'aseh to allow stolen matzah?

The rule of aseh doche lo ta'aseh only applies when the kiyum mitzvah and violation of the lav are simultaneous (though see Piskei Tos. at the end of Zevachim), but I headed off that problem in the question by asking you to imagine a scenario where the theft and kiyum occur at the same time, e.g. you eat the matzah right off the table without picking it up first.

Another technical possibility mentioned in the comments is that matzah may require ownership, lachem (whether this is true or not is worth discussing, but grant the assumption). Since the aquisition of the matzah, the ownership, did not precede the kiyum hamitzvah, this scenario does not work.

The most popular answer was along the lines suggested by R' Shimon (Ch. to Mes. Nedarim). Aseh doche lo ta'aseh works when the aseh and the lav are isolated to the same person. For example, the Torah does not want you to wear kilayim, but the Torah's desire for you to fulfill the miztvah of tzitzis overrides the negative. When it comes to gezel, it's not just that the Torah wants you to avoid stealing, an issur gavra, but the Torah's aim is to protect the property of your fellow man, the nigzal. Your mitzvas hagavra can override your issur gavra, but not the harm caused to the nigzal. (Notice how R' Shimon's answer assumes something about the reason behind the issur, the sibah. Brisk would not be happy.)

Another example of the same principle at work: the gemara tells us that a neder can be chal on sukkah and prevent your fulfillment of the mitzvah. The Rashba asks: let the mitzvas aseh of sukkah be doche the lav of violating the neder? R' Shimon explains that neder is an issur cheftza, meaning the purpose of neder is to place the object off limits. The mitzvas hagavra of sukkah can override the personal chovas hagavra issur of breaking one's word, but it cannot make an object which is off limits suddenly usable.

No one got the idea suggested by R' Amiel, which is really built on a yesod of R' Shimon in Sha'rei Yosher. Why do we say safeik mamon l'kula - i.e. hamotzi m'chaveiro alav hara'aya, if you want my money, prove it's yours, but until then I am not turning it over. Shouldn't I be concerned that I may be holding money that is really yours, and sfeika d'oraysa (of gezel) l'chumra so I should turn it over?

The key to the answer is knowing which is the cart and which is the horse so we know what comes first. Am I the owner of an object because there is an issur of gezel on anyone else taking it, or is the issur of gezel a function of my ownership? R' Shimon opts for the latter definition. First clarify the rules of the marketplace, what ownership means, how property is aquired, etc. and then we can apply the rules of issur v'heter. If the rules of commerce establish my ownership of an object, I need not be concered with a safeik issur gezel because of someone else's claim. R' Amiel calls this the realm of the mishpati, commercial law, which is distinct from all other areas of halacha.

Aseh doche lo ta'aseh works in the realm of issur v'heter, but not in the realm of the mishpati. There is no commercial meaning to the mitzvah of matzah which would allow me to trespass on another person's property. This idea has a lot of ramifications, but enough for one post.

Wednesday, December 23, 2009

why no "aseh doche lo ta'aseh" by gezel?

R' Moshe Amiel wrote an interesting sefer called "HaMidos l'Cheiker HaHalacha" ( 3 volumes available on which I wish I had time to read. The only comparable I am aware of is R' Kasher's "Mefa'aneiyach Tzefunos". Just like R' Kasher takes various chilukim and chakiros of the Rogatchover's and traces them through tens of sugyos to show how the Rogatchover applied them, R' Amiel tries to isolate certain logical principles and demonstrate how they apply across multiple sugyos, along the way explaining the central points of various machlokesin, resolving questions of Achronim, etc. As he writes in the introduction to one of the volumes, what makes the sefer unique is that instead of being organized around a masechta or around the Rambam, it is organized around these "midos", these logical constructs. My small critique after a cursory glance is that there are many, many sub-principles which he creates which makes things a bit complex, and he also has exceptions on top of the rules. That being said, the sefer is a tour de force of lomdus, for what is lomdus if not the translation of case-law into conceptual and logical principles.

Case in point as an illustration: Achronim ask why we never say aseh doche lo ta'aseh on an issur like gezel. For example, if you ate your friend's matzah so that the eating and theft were simultaneous, the halacha does not say that the mitzvah of matzah is doche the lav of gezel -- you are instead not yotzei. Why should this be so? R' Amiel's answer to this particular problem interestingly differs from that of his rebbe, R' Shimon Shkop, but at the same time is consistant with yesodos which R' Shimon sets down in other places. But before posting an answer let me leave the question out there and give people time to ponder.

Tuesday, December 22, 2009

what financial crisis?

The ads for the trips to Israel, the cruises (glatt kosher, daf yomi, all included) etc. for midwinter vacation are old hat. What caught my eye this year was the ad for an African safari. I think it was for something like 10 days in the bush where you can see the jungle and animals, and I apologize for not recalling if a daf yomi rebbe would be travelling along with this one as well.

We hear so much about the financial crisis currently affecting families, institutions, and schools, but if I didn't know better I would be asking, "What financial crisis?" With so many ads in "heimishe" publications for vacations that can easily set a budget back by a few thousand or tens of thousands of dollars, one is forced to either assume that a lot of kosher tour companies are going to go under soon or that hundreds of frum families have a these extra thousands of disposable income to toss away. The news I heard after Sukkos about hotels being packed pointed to the latter rather than the former.

Do people who work hard and reap the financial rewards of their efforts deserve a nice vacation? Absolutely. But I can't help but ask myself why some many institutions are toppling today when communally we have (or seem to have) so much more wealth and success than any prior generation? Undoubtedly the answer to that question is complex and multi-faceted and cannot be answered in a short post, but it's a question that begs asking on the commual level.

Monday, December 21, 2009

the miraculous in the day-to-day

The Beis Yosef asks why we celebrate Chanukah for eight days when there was enough oil found to last at least one day. We should celebrate only the seven days in which the oil miraculously continued to burn, not the first day in which nothing miraculous happened?

R' Simcha Zisel explains that the miraculous seven days of oil burning help us appreciate that Hashem's will, not mere laws of nature, is what governs the universe, and that is what causes oil to burn even on that first day. As the Ramban writes at the end of Parshas Bo, every day is filled with concealed miracles -- Hashem is always present, if only we take the time to notice.

It's perhaps after Chanukah is over when we return to the day to day that R' Simcha Zisel's message becomes all the more meaningful. The menorah may be in the closet, but the light which it revealed can still illuminate our perspective.

Friday, December 18, 2009

basar m'ikara azlinan and neiros chanukah (III)

To wrap up the series on basar m’ikara azlinan (links: part I, part II), we left off with the question posed to R’ Tzvi Pesach Frank: according to the Nimukei Yosef, lighting a fire creates a chiyuv of mazik because we view the damage the fire will cause as if it occurred already from the moment the arsonist struck the match. If so, the second we light Chanukah candles on Erev Shabbos, well before nighttime, it should be considered as if the candles' burning is a fait accompli. How then are we yotzei the mitzvah of hadlakas neiros later in the night if the candles are considered already consumed before dark?

R’ Tzvi Pesach Frank suggests a different pshat in the Nimukei Yosef that answers this question. The Nimukei Yosef did not mean to suggest that the damages caused in the future by a fire or an arrow are considered as if they already occurred the second arrow is shot or the fire is lit. Rather, the Nimukei Yosef meant that even though the damages have not happened, even though the arrow has not yet reached it target or the fire destroyed anything, the archer or the arsonist already becomes liable from the moment the arrow is shot or the fire lit. The chiddush of the Nimukei Yosef has to do with the hischayvus of the gavra, the liability of the individual, not with the cheftza, the assessment of when damages occured to the destroyed object. (This implicitly is counter to the Ketzos we looked at in part II.)

There is no problem with lighting Shabbos candles not because we view the entire burning process as already having occurred at the moment the fire is lit, but rather because we assess liability and responsibility for the lighting at that time, and at that time it is not Shabbos. There is no reason to suggest, based on this approach, that the Chanukah candles are considered burned through at the moment they are lit, well before dark.

Seems to me that you can answer the kasha asked to R’ Tzvi Pesach Frank a little more simply. Even if you assume the candles are considered completely consumed from the moment they are lit, that’s a din, not a metziyus. You can argue that basar m’ikara azlinan means an object dropped from a roof is considered broken the second it is dropped, but that halachic reality does not change the fact that it will hurt if it hits your head. In terms of dinei mamonos, your candles may no longer be considered candles by the time night roles around, but in terms of pirsumei nisa, the fact is you do have lights burning in your window.

And perhaps there is yet another solution. The Rishonim already discuss the question of how to understand the idea of lighting early on Friday: is the zman hadlakah really meant to be after dark, but since that is impossible we light early and just keep the candles burning, or does the zman hadlakah change and get pushed back earlier? If one takes the second position, there is no question to begin with, as lighting on Friday is no different than lighting any other night. So long as you light in the proper time, even if you treat the entire process of burning as occurring at that moment, you fulfill the mitzvah of hadlakah.

Let me end off with a question for thought (these type questions are oneg Shabbos). The gemara (B.K. 26) says that if a living person is pushed off a roof, someone who stabs the falling victim is chayav for murder. Yet, as we learned, since basar m'ikara azlinan, if you smash a falling object on its way down from the roof, you would not be chayav because the object is considered already broken. What's the difference between a falling body and a falling object? If you got the chiddush of R' Tzvi Pesach Frank this is easy, so I'll make it a little more challenging and ask for a second answer that works according to the Ketzos.

Thursday, December 17, 2009

basar m'ikara azlinan and neiros chanukah (II)

In Part I we saw Tosfos’ distinction between the case of dropping an object and the case of shooting an arrow at an object with respect to the issue of basar m’ikara azlinan. The Ketzos (390:1) claims that not all Rishonim agree, and one of his proofs comes from a very famous question of the Nimukei Yosef.

The gemara (B.K. 22) quotes R’ Yochanan’s view that damage caused by fire is similar to damage caused by shooting an arrow (isho m’shum chitzo): the person who starts the fire or shoots the arrow has no control over what subsequently happens, but is still responsible for the result. If I shoot an arrow and five minutes later it hits and destroys and object, even though I may be sitting under a tree when the damage occurs, it is as if I took a hammer at that moment and smashed the object; the same is true if I light a fire and it later burns down a house. The Nimukei Yosef asks: if so, how am I allowed to light Shabbos candles? Even though when the candles are burning I am sitting and enjoying my seudah, just like the archer sitting under a tree is viewed as if he at that moment smashed whatever the arrow hit, so too, I should be viewed as if I were engaged in the act of kindling for the duration of the candle’s burn!

The way the Ketzos interprets the Nimukei Yosef’s answer takes us back (see part I) to the case of an object dropped from the roof (disclaimer: it is by no means it clear that this is actually what the N.Y. meant). The reason the person who dropped the object is liable for breaking it and not the person who swings at it and smashes it on its way down is because basar m’ikara azlinan, we view the object as if it was broken from the second it was dropped, even before it actually hits the ground. So too, the person who shoots an arrow or lights a fire is not chayav because he is considered to be causing damage later when the arrow hits or the fire rages, but rather he is chayav because basar m’ikara azlinan, we anticipate the damage which will occur and consider it done already from the moment the arrow leaves the bow or the fire is lit.

Why are you allowed to light Shabbos candles? Because the principle of basar m'ikara azlinan tells as that the burning which occurs later is considered to have already happened the moment the candle was lit.

But didn’t Tosfos tell us that this sevara of basar m’ikara applies only when you act directly on an object, like dropping it off a roof, not when you indirectly cause damage, like shooting an arrow at it? QED, says the Ketzos, the Nimukei Yosef disagrees with Tosfos.

This is the context which (in my opinion) is needed to appreciate the question posed to R' Tzvi Pesach Frank. Here we go: I understand that I am allowed to light Shabbos candles because the candles which burn as I eat my meal are treated halachically -- basar m'ikara azlinan -- as if their burning was done already before Shabbos even started. However, this Friday I also have to light Chanukah candles, and those candles must burn after dark for me to fulfill my mitzvah. If I light those candles before Shabbos starts, and based on the N.Y. I treat the burning of the candle in the future as a fait accompli from that moment it is lit, how am I yotzei the mitzvah of lighting neiros Chanukah after dark? The lighting and burning finished their job before Shabbos started, while it was still light out!

I think there is more than one way to skin this cat. Bl"n I'll follow up with R' T.P. Frank's answer.

basar m'ikara azlinan and neiros chanukah (I)

There is an interesting tshuvah of R’ Tzvi Pesach Frank (in Har Tzvi) on a Chanukah issue where, while both the questioner and the response fail to mention it, without knowledge of a Ketzos I think you will largely miss the point (maybe they just assumed you would make the connection because once upon a time, as Havolim once wrote, the Ketzos was the bread and butter of every lamdan.) I’m going to break this post into chunks to make it easier to digest (I hope!).

The owner of an animal that stomps on an object is chayav to pay back its full price in damages. However, if instead of touching the object directly, the animal kicks a stone at the object and breaks it, the owner pays only half; this is the unique din of tzeroros.

The gemara (B.K. 17b) discusses the case of an object dropped off the roof of a building which is then smashed by someone else on its way down: Do we look at the object as already broken once it left the roof – basar m’ikara azlinan – or do we say that it’s not broken yet, and the one who smashes it pays? Rava raises the question; Rabba opines that we treat the object as already broken.

What if an arrow is shot at the object, and before it hits its target, someone else smashes the object? Sounds parallel to the gemara's case, but Tosfos says there is a distinction. In the gemara’s case the object itself is acted on by the party who drops it from the roof. In the case of shooting an arrow, the person firing the arrow does not act directly on the object; therefore, he is not liable; the person who smashes the object before the arrow hits is.

Tosfos proves the point: if shooting at an object is the same as acting directly on an object, then we’ve eliminated the distinction we started with between stomping on an object, which is one of the avos nezikin, and kicking a stone which later hits an object (tzeroros).

Given that there is a distinction between the cases, the question that begs asking is why. There are a number of possibile explanations, but I’ll keep it simple and put it this way: relative to the person who takes a swing at the object on the way down, the person who already acted directly on the object in a way that would destroy it bears greater liability. But relative to the person who has only indirectly acted on the object by shooting an arrow at it, the person who acts directly on the object by taking a swing at it is more liable.

The Ketzos (390:1) suggests that some Rishonim may not agree with Tosfos, and in part II I'll give you his proof and then tie that in to R' Tzvi Pesach Frank on Chanukah bl"n. Stay tuned.

Wednesday, December 16, 2009

wisdom trumps all: R' Simcha Zisel on Pharoah's appointment of Yosef

Despite the unflattering description of Yosef by the Sar haMashkim as a na’ar, an educated boy, an Ivri, a foreigner, Pharoah still gave Yosef the chance to interpret his dream. As a result of Yosef’s correct interpretation he was appointed second in command of Egypt, and when the Egyptians complained to Pharoah that Yosef demanded that they perform milah before he would release the food stores, Pharoah dismissed their complaints and ordered them to obey Yosef. We see in this little episode an interesting clash of values. On the one hand, Pharoah would certainly be as inclined as the Sar haMashkim to be dismissive of this young Ivri foreigner. On the other hand, Ramban tells us that Pharoah was a man of great intelligence, someone who could not fail to recognize the superior wisdom of Yosef. Which trait won out? -- the trait of wisdom, earning Yosef his position. R’ Simcha Zisel (Chochma u’Mussar #140) writes that it is inherent in the nature even of a rasha who is a wise person to defer to what they recognize as true wisdom.

We see this reflected in Yosef’s words to his brothers, “VaYisimeini l’av l’Pharaoh u’ladon l’chol beiso” (45:8). Ibn Ezra explains the term av here means father of an idea, like “avi tofeish kinor.” We see from a careful reading of the pasuk the difference between Pharoah and all others. To the Egyptian populace Yosef was an “adon”, a master who must be obeyed willy-nilly, but to Pharaoh he was an “av”, a source of ideas and wisdom, someone whose advice should be followed because it was the wisest course of action.

I don’t have much familiarity with R’ Simcha Zisel’s writings so maybe it’s just me, but this idea seems to run counter to what I thought was classical mussar. Classical mussar as I perhaps misunderstand it addresses itself to the perfection of midos because chochma alone is not enough to direct behavior and attitude. Chochma can be led astray and corrupted. For example, R’ Elchanan explains that we are all capable to fulfilling the mitzvah of emunah because the intelligence to do is innate; the reason so many “intelligent” people fail the test and become atheists is because intelligence can be corrupted by desire and will. Yet, here R’ Simcha Zisel tells us that Pharoah, despite all his rishus (and R’ Simcha Zisel does call him a rasha), is able to overcome his distaste for Yosef precisely because love of wisdom trumps other values. Is this a contradiction? Maybe someone out there who knows more about R’ S.Z. has an explanation.

Tuesday, December 15, 2009

Rav Amiel on the dispute between Shamai and Hillel over how many candles to light

Some of you liked the last idea posted from R’ Amiel from his Derashos El Ami, so let’s go for another round.

Rav Amiel echoes the approach taken by a number of meforshim who fit the machlokes between Beis Hillel and Shamai whether to increase the number of candles lit each night or decrease (Shabbos 21b) into a more general pattern that runs through their disputes throughout shas. Beis Hillel usually look b’poel at the actual, while Beis Shamai look at the koach, potential. For example, Shamai holds shtar ha’omeid l’gvos k’gavuy, a contract, such as a kesubah, is treated as money in hand because it stands to be collected. Hillel disagrees; until the money is actually in hand b’poel, the potential for it to be collected is meaningless. Here too, Shamai looks at the diminishing potential for the miracle of Chanukah to continue, while Hillel looks at the actual day to day increase in the miracle’s duration.

Rav Amiel suggests another unique approach. B”H and B”Sh may be l’shitasam of a different dispute. A person who visits the mikdash on Yom Tov brings an olas reiya and and a korban chagiga. If one has a limited amount of money to spend, B”H holds that preference is given to buying a bigger korban chagigah because it is eaten; B”Sh holds preference is given to buying a bigger korban olah because it is offered exclusively to Hashem.

The Hasmonean dynasty started its reign with great religious fervor as a result of the Chanukah rebellion, but its political and economic reach, coming off a civil war, was limited. Over the generations in which the dynasty continued that initial religious fervor waned, but the economic and political clout of the kingdom increased. Beis Hillel which preferences the chagigah, the human enjoyment of the korban meal, celebrates the increase in the kingdom’s power, even at the expense of the fervor which started the rebellion. Beis Shamai which preferences the exclusive dedication of the olah to G-d sees the zenith of the Hasmonean dynasty in its initial religious expression of zeal, but the continuation of the rein, while offering increased material prosperity and security, was a spiritual decline.

For some advice on how this machlokes Beis Hillel and Beis Shamai relates to shalom bayis and shidducim, see my wife's post here.

Monday, December 14, 2009

dmus d'yukno shel aviv v'imo

At the threshold of falling prey to temptation at the hands of Eishes Potifar, Yosef sees the image of his father (Rashi based on Sotah 36) and it is this image which causes him to desist from sin. The Yerushalmi (Horiyos 2:5, 10a in Vilna ed) adds according to anothe view that he saw the image of his mother.

It's a simple point, but one I think that is worth spelling out: It's not a halacha in the Rambam or a law of Egypt or even a sense of morality that causes Yosef to pause. All these are but minor obstacles that the yetzer hara can easily surmount. What grabs Yosef's attention is the image of Ya'akov the tzadik, Ya'akov his father. We ship our kids off to school and shul to learn and memorize rules and regulations, do's and don't's, but when push comes to shove, it's not a memorized rule that will guide their behavior -- it's dmus d'yukno of Aviv v'Imo. It's the image we present as parents that will stick in our children's minds.

What is the significance of the Yerushalmi's insight that Yosef saw his mother's image? My wife suggested a pshat that beat any idea I had. Midrashim indicate that Eishes Potifar saw in the stars that she was fated for Yosef. There was truth to this vision, as it was her daughter who became Yosef's wife. Seforim also compare Eishes Potifar's desire for Yosef with that of Tamar for Yehudah -- both had the purest motives in wanting to be with a tzadik and bring his children into the world. Yosef could easily have justified succumbing to her advances as a surrender to the inevitable dictates of fate. Yet, he remembered the image of his mother Rachel, who was fated and destined and desired becoming Ya'akov's wife, yet gave all of that up for the sake of Leah. Rachel's heroic action for the sake of heaven against what fate decreed was the impetus for Yosef's own heroic resistance.

R' Shimon Shkop on ain issur chal al issur (II)

Last week I posted a question of the Sha'ar HaMelech to which R' Unterman, in an article in the Sefer haYovel for R' Shimon Shlop, found R' Shimon's answer so compelling that he and other talmidim were completely taken by R' Shimon's derech. I'm not going to rewrite the whole kashe -- here is a link. We left off as follows: If a shevua on chatzei shiur is chal on top of the issur neveilah because it adds the potential for malkos for eating a smaller shiur than a k'zayis, why is the issur neveilah not chal on top of the issur achila of Yom Kippur -- the issur achila on Yom Kippur is on a k'koseves, but neveilah adds malkos for a smaller shiur of k'zayis?

As I predicted, the Brisker answers are first out of the gate with a gavra/cheftza chiluk. The issur shevua is chal because a shevua is an issur gavra, as opposed to neveilah which is an issur cheftza; Yom Kippur and neveilah are both categorically identical issurei cheftza. I don't want to get too bogged down in a discussion of this sevara, but there is certainly room to debate whether the issur of food on Yom Kippur, which is only for one day, can really be called an issur cheftza (see R' Yosef Engel in Esvan D'Oraysa regarding issurei zman). And the sevara begs the question: why can categorically different issurim be chal when these categories make no practical difference in terms of what the person may or may not do?

R' Shimon took a different approach. Even if two issurim have different shiurim, they cannot overlap. Since chatzi shiur asra torah, the smallest piece of neveilah is already prohibited because all food in any shiur may not be eaten on Yom Kippur. Why then is the issur of chatzi shiur chal because of shevua when chatzi shiur of neveilah is already assur? Because in that case the consumption of the food per se is not the sibas ha'issur -- the sibas ha'issur, the root cause of the law, stems from the violation of one's oath that the eating demonstrates.

You can see the difference between R' Shimon's approach and a Brisker approach. R' Shimon is less concerned with categories, and more willing to speculate on the why, or the root cause of issurim. R' Yosef Engel has a whole essay on differences between kamus and eichus and one can easily see that distinction working here almost as a middle ground between R' Shimon and Brisk: the issurim of neveilah and Yom Kippur are different in kamus, while shevua is different in eichus.

Parenthetically, in the past I've made reference before to R' Shimon's first shiur on Nedarim in the chiddushim in which he attempts to distinguish between issurei gavra and cheftza (I'm not aware of any Brisker-authored attempts to define the terms that they helped make popular). Interestingly, R' Unterman references this specific shiur in his essay and remarks that the talmidim were not at all taken by R' Shimon's approach.

aveilus: accepting nechama

After a few weeks of posting insights from R' Shteinman on the parsha on Fridays I apologize for missing. One quick point:

The Torah tells us that Ya'akov refused to be comforted, to receive nechama, when he heard of the loss of Yosef. R' Chaim Brisker held that it is not only a mitzvah on the menachamim to console the mourner, but there is a mitzvah for the mourner to receive the consolation. R' Shteinman cites the gemara in Brachos which tells us that Rabban Gamliel was "mekabeil tanchumin" after his educated slave Tevi died; we see from here as well that consolation must be received. The Mesorah journal (Adar 5751, available here) quotes this same chiddush with what I think are two added points. 1) R' Soloveitchik held that this halacha of kabbalas tanchumin is part of the practices of mourning, nihugei aveilus. This is why mourning on the last day of shiva, where only part of the day is observed in aveilus, technically ends when the menachamim depart. What do the presence of menachamim have to do with whether the mourner is still obligated in aveilus? Because their very presence and the reception of their nechama demonstrates that aveilus is still being observed. 2) R' Soloveithik suggested that the mourner must actively acknowledge the nechama, e.g. nod his head, and not simply remain passive. This chiddush is based on a Midrash which says that Hashem continued to console the Jewish people after the churban habayis until they acknowledged his consolation.

It's not germane to this point, but an interesting chiddush in the journal article worth noting: the common practice is to address all the mourners as a group and wish them nechama. R' Soloveitchik suggested that this poses a problem of doing mitzvos chavilos chavilos and it is better to address each aveil seperately.

Friday, December 11, 2009

Yosef's beauty

The appointment of Yosef to be in charge of Potifar’s home and dealings is followed by his physical description (in terms, as my wife noted, which are usually used to describe women) as “Y’fei to’ar v’yefei mareh” (39:6). Yosef did not suddenly become beautiful -- one is born either handsome or ugly, and while makeup and grooming can enhance certain features, they cannot make an ugly duckling into prince charming. So why interject this description here?

Rashi and Ramban offer different answers. Ramban explains that the description of Yosef’s beauty is an introduction to the upcoming parsha; Yosef’s beauty led to Eishes Potifar’s advances and attempts at seduction. Rashi connects the pasuk to the previous parsha’s description of Yosef’s rise to power. Now that he was released from hard labor Yosef become too focused on his own grooming and appearance.

The Ramban’s approach takes Yosef to be the innocent victim of Eishes Potifar’s attackes, but Rashi opens the door to assigning at least some of the to Yosef himself. Eishes Potifar’s attack was a punishment and perhaps a direct result of Yosef’s flaunting his beauty around the home of his master.

The Netziv follows in Rashi’s footsteps in assigning blame to Yosef, but for a different reason. The Netziv writes that immersion in Torah has the effect of diminishing a person’s external beauty. The statement that Yosef appeared beautiful is the Torah’s subtle way of telling us that Yosef was not as involved Torah as much he should have been. As a result, he lost the miraculous protection which Torah study affords and was tempted and subject to attempted seduction.

One perhaps need not invoke the power of miraculous protection to understand the parsha along the lines of the Netziv. The Hollywood stereotype of the student immersed in books as the nerdy type not caring about appearance or grooming reflects a certain truth. Immersion in study of any sort should focus one’s mind on higher ideals than superficial appearance. Yosef’s concern with beauty tells us that he lost some of that focus; he became a person who cared about appearance and was therefore both tempted by and prey for Eishes Potifar.

I think it is not by accident that it is dmus d’yukno shel Aviv, the image of Ya’akov his father, which appeared to Yosef and brought him back to reality. Despite Keats’ memorable lines on a Grecian urn, beauty is not always true, nor is truth always beautiful. The superficial splendor and beauty of material culture is at often odds the values and truth of Torah. Chanukah celebrates our reliving the test of Yosef and embracing “titein emes l’Ya’akov” over the aesthetic beauty of Yavan.

Thursday, December 10, 2009

rambam/ra'avad -- hadlakas hamenorah l'shitasam in philosophy

The debates over the merits of rationalism may be relevant to inyana d'yoma of Chanukah. The Rambam (Hil Bi'as Mikdash ch. 9) paskens that the menorah may be lit by a non-kohen and then placed in its proper spot in the heichel. Only the hatavah, the preparation of the menorah with oil and wicks, must be done by a kohen. The Ra'avad disagrees (as we discussed once before).

R' Moshe Amiel (parenthetically, you can read an essay of his in the Sefer haYovel for R' Shimon I mentioned last post) in his Derashos El Ami on Chanukah (first essay) explains the machlokes l'shitasam. The Rambam, who assimilated Aristotelian philosophy into Judaism, held that the "who" and "where" of lighting menorah does not matter -- the source of the light of chochma does not matter -- so long it is brought into the mikdash. The Ra'avad disagreed with the Rambam's view of philosophy and l'shitaso holds that it's not enough to bring the light of the outside world into the mikdash, but the source of the light must come from a hadlakah done in the mikdash itself. (It's derush, not lomdus.)

ain issur chal al issur and R' Shimon's derech halimud

Some bookstores (e.g. The Strand in NYC) were meant for browsers more than buyers. The internet allows for virtual browsing, and is the sort of site where treasures are often found. I recently chanced on a Sefer haYovel published in honor of R' Shimon Shkop’s fiftieth year as Rosh Yeshiva that is filled both with divrei halacha as well as student’s reminisces worth taking a look at.

The first essay, written by Rav Unterman, describes the beauty of R’ Shimon’s analytical style, which he illustrates (p. 14) by recalling a shiur that R’ Shimon gave one Shavuos morning. The topic of the shiur was the following question of the Sha'ar haMelech: An issur cannot prohibit something which is already prohibited -- ain issur chal al issur -- except in the special circumstance that the new issur adds something not included in the existing one. If an animal died and became neveilah on Yom Kippur, the issur neveilah is not chal on the meat because all food, meat included, is already prohibited because it's Yom Kippur. The Sha’ar haMelech writes that he does not understand why this should be the case. He reasons as follows: Eating even a chatzi shiur of food is prohibited on Yom Kippur, but there is no punishment for eating less than a k’koseves hagasah. However, the issur neveilah is punishable with malkos if one eats even a k’zayis, which is less than a k’koseves. Since the issur neveilah adds the potential for punishment for eating a lesser amount, it should apply on top of and in addition to the issur achila of Yom Kippur.

How do we know adding the potential for punishment alone allows for an assur to be chal on top of another issur? From the following seemingly parallel case: if a person takes a shevua not to eat a chatzi zayis of neveilah, the shevua is chal. Even though eating a chatzi shiur of neveilah is already prohibited, there is no punishment unless a full k’zayis is eaten. Since the shevua adds the potential for punishment for eating even a chatzi shiur (for violating the shevua), it is chal on top of the existing issur neveilah.

Concludes the Sha'as haMelech: If the issur of shevua is chal on top of the issur neveilah because it adds the potential for punishment for eating even a smaller shiur, why is the issur neveilah not chal on top of the issur achila of Yom Kippur because it adds the potential for punishment for a eating even smaller shiur?

Rav Unterman writes that R’ Shimon’s solution to this question so impressed the listeners that they felt there was no question that his derech halimud was founded on indisputable truths.

So, here’s a chance to test your power of reasoning – what's the teirutz? No bekiyus required – you have all the facts you need at your disposal, and you have the additional advantage of a living a few decades after R' Shimon's derech has been perculating through the yeshiva system and has had a chance to reach our ears in one form or another of a shiur or chaburah. (I’m willing to bet that some of you who do come up with an answer will either find a Brisker way out or frame an answer similar to R’ Shimon’s in Brisker-garb because most of us have been brainwashed as Briskers, but we shall see : )

My son is has gotten enough of a feel for R’ Shimon’s derech from fielding these type questions (I usually hint to him in advance that “It’s a R’ Shimon question” or “It’s a R’ Chaim” so he develops a sense for what different types of questions/answers to expect) that the first thing he said to me was, “Let me guess – it has something to do with the “sibas ha’issur.” Those are indeed the magic words that let you into R’ Shimon’s mind. Now you just need to figure our the rest : )

I’ll bli neder post the solution at some point soon. Why knows? If this made such an impression on R' Unterman, who was a gavra rabbah himself, maybe it will inspire me and you to crack open the Sha'rei Yosher a little more often.

Wednesday, December 09, 2009

starving at the doors of the banquet

Not Brisker Yeshivish has three back to back must-read posts (I, II, III) cataloging some of the common themes found in the thinking and writing of the the so-called rationalist/academic camp. I'm hesitant to use it as an example, but what the heck -- L'havdil, here is a passage from The Seven Storey Mountain by Thomas Merton, a book which seems to have waned in popularity but still makes some of the "100 best books of the century" lists. On p. 175 Merton writes:

How many there are in the same situation! They stand in the stacks of libraries and turn over the pages of St. Thomas's Summa with a kind of curious reverence. They talk in their seminars about "Thomas" and "Scotus" and "Augustine" and "Bonaventure" and they are familiar with Maritain and Gibson, and they have read all the poems of Hopkins -- and indeed they know more about what is best in the Catholic literary and philosophical tradition than most Catholics ever do on this earth. They sometimes go to Mass, and wonder at the dignity and restraint of the old liturgy. They are impressed by the organization of a Church in which everywhere the priests, even the most un-gifted, are able to preach at least something of a tremendous, profound, unified doctrine, and to dispense mysteriously efficacious help to all those who come to them with troubles and needs.

In a certain sense, these people have a better appreciation of the Church and of Catholicism than many Catholics have: an appreciation which is detached and intellectual and objective. But they never come into the Church. They stand and starve in the doors of the banquet -- the banquet to which they surely realize that they are invited -- while those more poor, more stupid, less gifted, less educated, sometimes even less virtuous than they, enter in and are filled at those tremendous tables.

Different religion, same contrast between the world of "objective" scholarly study and passionate belief.

And here the academic will undoubtedly object and say it is not the displacement of the passion and love of religion which is his aim, but rather his goal is simply for a different kind of passion, one that comes from understanding based on fact and reason rather than myth and folklore. Objection noted, but I don't find it to be a credible argument. In my limited experience I have not found learning or avodah outside the walls of the traditional yeshiva, where the assumptions of that world are questioned or rejected, on par with the learning and avodah within those walls -- you can be your own judge. Yes, there are interesting questions the scholar asks, articles and books that we can gain from, just like there is something to be gained by reading about the religious conversion of Merton. But I would rather stay at my own "tisch" and grab a fruit off the other table than sit at the table of the academics and sacrifice the banquet of passion and commitment on my own.

Tuesday, December 08, 2009

missing the subtle message

Hashem appeared to Ya'akov after the conclusion of the battle with Shechem and ordered him to return to Beit El. Why did G-d need to order Ya'akov to return to Beit El, his home? The opening of Parshas VaYeitzei tells us that Ya'akov intended and promised (with G-d's help) to return home -- his stay in Lavan's home was just a temporary escape from Eisav. Ya'akov had also already been told while in Lavan's home that it was time to leave, and he was already on the road, ostensibly headed back home. Rashi cites a snippit of Midrash Tanchuma to answer this question, but it's worth seeing the text of the Midrash in its entirety:

בא וראה כשהלך יעקב לארם נהרים מה כתיב שם וידר יעקב נדר לאמר וגו' (בראשית כח), השיבו על כל דבר ודבר, הלך ונתעשר ובא וישב לו ולא שלם את נדרו הביא עליו עשו ובקש להרגו נטל ממנו כל אותו דורון עזים מאתים לא הרגיש, הביא עליו המלאך ורפש עמו ולא הרגו שנאמר ויותר יעקב לבדו ויאבק איש עמו זה סמאל שרו של עשו שבקש להרגו שנאמר וירא כי לא יכול לו ונעשה צולע, כיון שלא הרגיש באת עליו צרת דינה שנאמר ותצא דינה, כיון שלא הרגיש באת עליו צרת רחל שנאמר ותמת רחל ותקבר, מסייע ליה לרב שמואל בר נחמן דאמר כל הנודר ואינו משלם גורם לאשתו שתמות שנאמר אם אין לך לשלם וגו' אמר הקב"ה עד מתי יהא הצדיק הזה לוקה ואינו מרגיש באיזה חטא לוקה הריני מודיעו

The Tanchuma answers that G-d reiterates his command to Ya'akov to return home because Ya'akov had delayed in fulfilling his promise to do so. Through its answer, the Midrash also manages to tie together the many disparate episodes of the parsha -- Eisav, the angel, Shechem, Rachel's death -- quite nicely. All are a punishment for Ya'akov's delay.

A few points:

1. Textual -- the Midrash sees the death of Rachel as part of the punishment for Ya'akov's delay, yet, the death of Rachel is written in the parsha only after G-d appears again to order Ya'akov home. It seems a stretch to suggest based on this Midrash alone that events are written out of order. I have no good answer.

2. Moral -- The subtle hint of repeated punishment is apparently lost on Ya'akov, who trudges along through difficulty after difficulty not realizing that his behavior is his own worst enemy. If Ya'akov, the bechir ha'avos, could not grasp that G-d was trying to tell him something even after receiving patch after patch, we who have no nevuah and are groping in the dark for direction surely stand a good chance of remaining confounded and confused even as G-d sends signal after signal our way (see R' Shternbruch's Ta'am v'Da'as).

3. Halachic -- The Midrash assumes (as does the Zohar) that a person's wife may even die as a result of his delaying fulfillment of a neder. (My wife jokingly commented that this may suggest a strategy to those who wish to get rid of their spouse-- hopefully not!) Yet, the gemara (Rosh haShana 6a) states clearly that this is not the case, darshening, "V'haya becha cheit" -- v'lo b'ishtecha cheit. A simple answer is that Rachel was not punished directly for Ya'akov's delay, but she simply suffered the natural effects of danger during childbirth, which more often led to death in ancient times. Had Ya'akov been more careful, Rachel might have been afforded the supernatual protection that comes of extra zechus. See the Kli Chemdah for a more complex pilpul on the topic.

Monday, December 07, 2009

a Freudian Rashi

The Torah describes the death and burial of Devora, the nursemaid of Rivka, as a means of hinting that Rivka herself had died. Rashi (35:8) asks why the Torah does not openly tell us of Rivka’s death; he answers that Rivka’s death was kept quiet so that people would not curse the womb which produced Eisav.

Why would people tarnish Rivka’s memory by only recalling that she brought Eisav into the world and ignoring the rest of the story? Rivka was also the mother of Ya’akov, not only Eisav. In fact, it was Rivka who even more than Yitzchak showed her affection for Ya’akov. R’ Shteinman in his Ayeles haShachar points out that this is human nature -- we harp on the faults of others and neglect and ignore the good. Sad, but so very true.

Rav Shteinman further asks why people would blame Rivka for Eisav’s faults and actions? And why only her and not Yitzchak? Rashi preceded Freud by a good many years, but I cannot resist answering R’ Shteinman’s kashe by pointing to the old psychoanalytic standby used to explain abnormal behavior -- “It’s all your mother’s fault.” Whether there is truth to it or not I don’t know, but it certainly is a sentiment that has entered our cultural psyche (no pun intended). Is that a result of the popularization of psychoanalysis, or has the trend to blame mothers for the ills of society been around much longer?

Friday, December 04, 2009

the concept of "tziruf" and the shiur of gadlus

Rashi (Nazir 29b) writes that the earliest age at which the Torah refers to someone as an “ish”, being a mature adult, is 13. The Torah in Parshas VaYishlach writes about Shimon and Levi, who we know b’mesorah were 13 at the time of their fight with Shechem(and Rashi adds that if you want to calculate it, go ahead), “VYikchu ish charbo”. This is the source for the age of bar mitzvah. The Rosh in a tshuvah disagrees and says that the source is a halacha l’Moshe m’Sinai.

In a letter to my wife’s grandfather, R’ Dov Yehudah Shochet, on the occasion of one of her uncles becoming bar mitzvah, the Lubavitcher Rebbe cites this machlokes and writes that a nafka mina between Rashi and the Rosh would be the age of gadlus for a ben Noach, a question raised by the Mishne l’Melech and other Achronim. If the age of gadlus is simply a measure of maturity, as Rashi seems to indicate, there is no reason to distinguish between a yisrael and a ben noach. But if it is simply an arbitrary number set by halacha l’Moshe m’Sinai, as the Rosh writes, then it would apply only to a yisrael because shiurim are part of Torah and were never given to bnei noach (Chasam Sofer Y.D. 317). (I actually suggested this same nafka mina in a post last year, so baruch shekivanti.)

The Rebbe then adds a bit of derush. Since the age of kabbalos ol mitzvos, at least according to Rashi, is a matter of reason and not an arbitrary number, one might mistakenly think that the kabbalos ol itself is dependent upon reason. Therefore, precisely where the textual hook of the word “ish” appears, the Torah continues with the word “charbo”, an allusion to mesirus nefesh, a quality which transcends the bounds of reason and logic. (I wonder how my wife’s grandfather, who was steeped in the mesorah of Telz known for emphasis on da’as (e.g. Shiurei Da’as), would have taken this.)

We actually find a hint to the idea of gadlus starting from age 13 earlier in the Torah. In Parshas Toldos, Rashi comments on "VaYigdilu hane'arim" (25:27) that Eisav and Ya'akov were 13 when they each went their own way in life.

On a related note, interestingly the gemara (Nazir 62a) says that m’doraysa from the age of “mufla ha’samuch l’ish” nedarim made by a ben noach are binding. However, the same may be true only m’derabbanan with respect to a yisrael. Why is there a distinction in this shiur with respect to age between a ben noach and yisrael? Rashi explains that this is simply a chumra that applies to ben noach, as we find in other areas. The Rogatchover (see R’ Kasher’ into to Rogatchover al haTorah, Braishis, p. 60) offers a deeper insight. The concept of tziruf, which binds together individual units into a larger whole, is a legal fiction which exists only because we have a legal framework of Torah that gives it reality. For a ben noach, no laws that depend on tziruf exist. The Rogatchover poses the following chakira: Is becoming a gadol a matter of reaching a specific point in time, or is it a matter of having lived through 13 years worth of hours, minutes, and seconds? The Rogatchover suggests that for a ben noach, it is a matter of reaching a point in time, such as mufla ha’samuch l’ish. For a yisrael, gadlus is measured by shtei sa’aros, not reaching a specific point like mufla ha’samuch l’ish. It is the passage of time, not a specific point in time, which leads to the growth of shtei sa’aros – the tziruf of previous years together make a person into a gadol.

Can you use the Rogatchover’s chakira to explain the machlokes Rashi and Rosh? I think maybe you can: According to the Rashi, “ish” is a point of time at which maturity is reached, no difference if you are a yisrael or a ben noach. According to the Rosh, gadlus is a product of the tziruf of the passage of previous years and therefore a halacha l’Moshe m’Sinai is needed to be mechadesh it as a conceptual construct.

Thursday, December 03, 2009

migu as zechus hata'anah

As we discussed, when two pairs of eidim offer contradictory testimony, Tosfos holds that migu cannot bolster the credibility of one pair over the other. Because trei k’meh, i.e. the credibility of 100 witnesses is no better than 2, it stands to reason that the credibility of 2 witnesses who have a migu is also no better than the credibility of 2 witnesses without -- there is simply nothing, no other proof or combination of proofs, which trumps two witnesses. Yet, after citing this explanation of Tosfos, the Sha’ar haMisphat holds that if one of the litigants, a ba’al din, has a migu in a case where witnesses contradict each other, his claim wins. Why should this be so? If there are two witnesses that back up the plaintiff’s story and two witnesses that back up the defendant’s story, and no evidence in the world that trumps witnesses, why does throwing the litigant's migu into the mix tilt the scales?

R’ Elchanan’s answer to this question (Koveitz Shiurim #4) is one of the classics. The simple way to understand migu is that it is a siman, an indication that your claim is truthful. Since if you wanted to lie you could tell a better lie, the weakness of your claim is a mark in its favor. But this, says R’ Elchanan, is only half the story. It’s not just the possibility of a better story that bolsters your claim, but rather we view your defense as if you had actually told the better story – you get the benefit of a better claim without actually having to articulate it. This is known in yeshvish-ese as having a “zechus hata’anah”.

Coming back to our question, where two litigants and witnesses are at a standoff about fact X, migu does not help either pair of witnesses because it adds no more credibility to testimony about X than the witnesses already have. But where the litigant has a migu, that’s another story. A migu in the hands of the plaintiff or defendant says that in addition to claim X which is under dispute, their zechus hata’anah means claim Y is also implicitly on the table to their benefit. Since the standoff between the witnesses is only with respect to the facts about X, the addition of claim of Y can tip the scales in one party’s favor.

I am posting this because it tangentially came up in the comments to the post about migu and eidim, but it is a piece that sticks in my mind for another reason. Last year my son was in 9th grade and learning Baba Basra and I remember early in the year talking to him about a migu sugya and discovering that he had never heard of this idea of “zechus hata’anah”, so we learned it together. This year (bli ayin hara) I don’t think I can come up with a single R’ Elchanan on the masechta he is learning (and I would not want to go head to head with him on other masechtos either) that he does not know already. As I’ve written before, if you want to take see the type growth in learning you should aspire for, just look at your kids. Every year is an exponential leap beyond the level of the previous year, whether it be knowing R' Elchanan or simply moving from Reishis Keri'ah to knowing how to read a pasuk.

Tuesday, December 01, 2009

einei ha'eidah

In The Age of Wonder: How the Romantic Generation Discovered the Beauty and Terror of Science by Richard Holmes, the author discusses the discovery of Uranus by William Herschel, a musician turned astronomer whose theories and observations rekindled an interest in the field of astronomy and helped change the way we look at the universe. Herschel's discovery was made possible because he was able to construct telescopes that were far greater in power than anything his peers were using, but having the right tools does not tell the whole story. Holmes writes (p. 116):
The more he was challenged by professional astronomers, the more Herschel became conscious of his 'art of seeing', and how it needed explaining afresh. 'The eye is one of the most extraordinary Organs,' he repeatedly told his correspondants. Classical physiology was wrong. Visual images did not simply fall upon the optic nerve, in the same sense that they fell upon a speculum mirror. The eye constantly interpreted what it saw... The astronomer had to learn to see...
Holmes suggests that Herschel's training as a musician aided his ability to observe the night sky. Like sight reading a score, Herschel could grasp patterns in the sky without needing to observe each star individually. "Or more subtly, the brain that was trained to recognise the highly complex counterpoints and harmonies of Bach and Handel could instinctively [italics mine] recognise analogous star patternings." (p. 115)

It occurred to me that perhaps we refer to Chazal as the "einei ha'eidah," the eyes of the people, because their power of vision is characterized by these same two aspects of "seeing" that Holmes describes. Firstly, seeing is not instinctive, but is a learned behavior, a skill, and a highly trained observer who has worked on developing his vision can perceive far more than the average person. Dismissing the words of a talmid chacham by saying, "I don't see his point," just highlights the paucity of our own vision in comparison to what the talmid chachaim does see. Secondly, our talmidei chachamim and einei ha'eidah have an instinctive grasp of reality that we may not share. To attempt to reduce what can be grasped instinctively and instantly into a series of steps that someone else can follow and duplicate is not always possible.

P.S. The book is pretty interesting (so far), whether you are looking for a history of science during the Romantic age or just a good read.

trei k'me'ah: quantity of proof vs. quality of proof

Two witnesses can charge that one or both of a pair of other witnesses are thieves (or some other psul) and disqualify them from testifying. However, two witnesses would not be believed if they charge that the testimony of other witnesses is a lie. We would be left with a case of trei u’trei, a standoff. Tosfos (B"K 72b d"h ain) asks: why in this second case would we not believe the accusing witnesses that their counterpart’s testimony is a lie migu that they could just accuse their counterparts of being thieves and disqualify them?

The first answer of Tosfos focuses on metziyus. Migu assumes that were someone to lie, he would tell the best lie possible; a defect in a claim is evidence of its truthfulness. This sevara does not apply when speaking of two witnesses because two people practically would be unable to coordinate a story to fabricate a better lie.

The second answer of Tosfos is based on a din. We know that the testimony of 100 witnesses is no better proof than the testimony of 2 witnesses: trei k’me’ah. We also know that the testimony of witnesses is stronger proof than migu. So if 100 witnesses are no better proof than 2 witnesses, QED that 2 witnesses + a migu are no better proof than 2 witnesses alone.

According to the second answer of Tosfos, migu adds no credibility. However, according to the first answer of Tosfos, were it theoretically possible to apply the sevara of migu, it would make a difference. What is the point of debate?

R’ Elchanan (Koveitz Shiurim) writes that there are two ways to understand trei k’me’ah.
1) Relative: One type of proof can be weighed against a qualitatively different type, e.g. ruba v’chazakah ruba adif, rov is better proof than chazakah, but there is no difference between a greater or lesser quantity of the same type of proof. All proof through testimony, be it from 2 or 100 witnesses, amounts qualitatively to the same thing.
2) Objective: testimony of two witnesses is by definition the highest degree of proof possible and therefore cannot be trumped by anything, even a greater quantity of witnesses.

If trei k’me’ah just tells us that different quantities of the same proof equal out, then adding a qualitatively different type of proof to the mix, e.g. adding migu to one side of the scale, tips the balance. However, if trei k’me’ah means that by definition there is no proof of any type superior to that of two witnesses, adding migu to the scale has no effect.

Question/observation: according to R' Elchanan's first approach, the scales only move when we compare and weigh qualitatively different forms of proof against each other, not different quantities. Sounds to me like this means that sugyos that invoke two chazakos beating one (e.g. the discussion in Nidah 2-3) work only if the chazakos being weighed are qualitatively different. It would be interesting to test if we could really come up with qualitative differences between all the various forms of chazakah, but that type of project is beyond me at this point.