Monday, August 30, 2010

mitzvah haba'ah b'aveira (III) - shofar

The Rambam writes that a stolen shofar is not disqualified because of mitzvah haba'ah b'aveira because "ain b'kol din gezel," the mitzvah object required for the mitzvah of tekiyas shofar is sound, and sound is not an "object" which can be stolen. Ra'avad writes that the source for the Rambam's din is not a sevara, but rather a derasha (quoted in the Yerushalmi), "Yom teru'ah yehiyeh lachem," even if stolen.

Last week we learned from the Mishnas Ya'avetz that there are two dinim in the psul of mitzvah haba'ah b'aveira: 1) failure of the individual to fulfill his mitzvah, a psul gavra; 2) a disqualification of the object from use in mitzvah performance.

Based on this we can understand why the Rambam cites a sevara in addition to the derasha of the Yerushalmi. The Yerushalmi teaches us that a stolen shofar is not disqualified as a mitzvah object -- it is not like a cracked shofar or a shofar that is too short. However, that does not necessarily mean a person can attain a kiyum mitzvah using such an object. The individual performing the mitzvah has attained his goal through improper means and deserves no credit. The Rambam therefore adds that the kiyum mitzvah of shofar is through the sound of the shofar only. The act of stealing the shofar object is only indirectly related to the actual mitzvah performance and does not disqualify it.

Thursday, August 26, 2010

first fruits

We interrupt our series on mitzvah haba’ah b’aveira because someone asked me to write a parsha idea. The Midrash Tanchuma teaches:

אלא צפה משה ברוח הקודש וראה שבית המקדש עתיד ליחרב והבכורים עתידין ליפסק, עמד והתקין לישראל שיהיו מתפללין שלשה פעמים בכל יום, לפי שחביב תפלה לפני הקדוש ברוך הוא מכל מעשים טובים ומכל הקורבנות

Moshe prophetically saw that the Beis haMikdash would be destroyed and the mitzvah of bikkurim, of bringing first fruits, would cease. He therefore instituted that we daven three times a day because prayer is even more beloved than good deeds and korbanos.

We’ve discussed this Midrash before, but there is always room to say more. The difficulties are striking:
1) Many mitzvos cannot be done without a Beis haMikdash. Why was Moshe concerned specifically with the loss of the mitzvah of bikurim more than the loss of any other mitzvos?
2) How does davening three times a day serve as a substitute for bikurim?
3) Why did Moshe feel a need to make plans now because of a churban that would only occur hundreds of years down the road? Why didn’t he leave it to the sages and Nevi’im of that time to make the necessary arrangements?

The Mishna describes in great detail the process of designating fruit as bikurim. It tells us that the farmer would go out into his field, “Ro’eh te’eina she’bikra…,” he would see a newly ripened fig, and he would place a tie around it to remind him that it was the first fruit to ripen and should be brought to the Mikdash. The Mishna seems unusually verbose. Obviously the farmer must first, “ro’eh te’eina she’bikra,” see the ripened fruit, in order to perform the mitzvah of bikurim! Why does the Mishna, which is always written in the most concise manner, need to spell out this basic detail?

I think the answer is that the mitzvah of bikurim is not just about first fruits, but it’s also about perspective. To many people the credo, “Same old, same old,” sums up life. They neither see anything new that happens, or, in many cases, don’t wish to see anything new that would upset the cycle they are used to.

The first step to bikurim is to be a “ro’eh,” to see those new first fruits. It’s not “same old, same old.” Like the farmer who is “ro’eh te’eina she’bikra,” we need to open our eyes to the new opportunities that await us each day and we need to act on them as soon as they ripen.

Of course the loss of the Beis haMikdash would bring about the loss of opportunity to perform many mitzvos, but what Moshe found especially troubling was the loss of bikurim. Without a reminder that each day brings with it new opportunities for renewal, there is the danger of growing complacent, of seeing only the “same old, same old” and becoming accommodated to galus. Without bikurim there can be no belief in the possibility of a new Beis haMikdash.

Tefilah is the antidote to the loss of bikurim-perspective. A person davens shacharis and goes off to the daily grind. A few hours later it’s mincha time. “I just davened these same words a few hours earlier?!” thinks Mr. Same-old. And he thinks the same thoughts again a few hours later when the clock strikes time for ma’ariv. Looking through our bikurim-perspective we can appreciate that the words may indeed be the same, but the tefilah is a completely different experience. How many new things have happened between morning and afternoon that should cause us to reflect, to turn to Hashem for guidance! Davening not once, not twice, but three times a day, at different points during the day, forces us to reflect on the new opportunities and challenges, the new fruit, that constantly arise.

It’s not just any fruit that can be brought to the Beis haMikdash, but it must be the first fruit. There is something special about “firsts” – we are attracted to newness. There is only one first time to do something, and often that first sets the tone for all else that follows. It was precisely for this reason, consistent with the message of bikurim, that Moshe used this opportunity to plan the means to preserve the spirit of bikurim even in the time of their physical absence. Bnei Yisrael were about to take their first steps as a nation on the holy soil of Eretz Yisrael. In the not too distant future they would undertake their first effort to build a Beis haMikdash. Moshe did not want to wait for the eventual destruction of that Mikdash and rely on others to make plans for survival without bikurim – he wanted to seize this initial moment, this “first,” and build into it the potential for continuity.

We need not wait until Rosh haShana, the beginning of a new year, to seize the opportunity for change. Bikurim, opportunities to begin anew, are constantly growing all around us, waiting to be seen, waiting to be plucked, waiting to be brought to our personal mikdash, that which is holy in our lives.

Wednesday, August 25, 2010

mitzvah haba'ah b'aveira (II)

The Minchas Chinuch answers the question we started with yesterday – why a derasha of “lecha” is needed to disqualify a stolen sukkah when we already have a din of mitzvah haba’ah b’aveira – by distinguishing between two different types of disqualification. The halacha of mitzvah haba’ah b’aveira teaches that a person gets no credit for fulfilling his mitzvah obligation. With respect to the mitzvah of sukkah, this is not as bad as it sounds. Except for the first night of Sukkos, there is no obligation to eat in the sukkah. One can eat fruits, vegetables, meat, fish, etc. and never need a sukkah. It makes little difference if you don't get credit for fulfilling an obligation that does not exist in the first place.

However, the Torah adds an additional level of disqualification to the stolen sukkah. The pasuk of “lecha” teaches not only do you not get credit for fulfilling any obligation by sitting in a stolen sukkah, but more than that -- the sukkah itself is invalid. A stolen sukkah is like a sukkah without proper schach or walls. You don't have an obligation to eat in a sukkah on chol ha'moed, but if you do eat bread, it better be in a kosher sukkah.

As we discussed, there are Rishonim who explain that the added pasuk of "lecha" is needed because mitzvah haba’ah b’aveira applies only to mitzvos that involve “ritzuy,” supplication, such as korbanos. We ended off with the question (asked by the Ritva) of how these Rishonim explain the Yerushalmi that teaches that stolen matzah is a mitzvah haba’ah b’aveira -- matzah is not a mitzvah of ritzuy?!

Rav Betzalel Zolti (Mishnas Ya’avetz - link) answers by drawing a similar distinction to that of the Minchas Chinuch. There are two elements to the mitzvah haba’ah b’aveira disqualification: 1) a negation of credit for the mitzvah act, a psul in the ma’aseh gavra; 2) disqualification of the mitzvah object, a psul in the cheftza shel mitzvah. The Yerushalmi which disqualifies stolen matzah is speaking of disqualification of the mitzvah act -- one gets no credit for fulfilling the mitzvah of matzah by eating stolen food. This disqualification applies across the board to all mitzvos done through an aveira. The Rishonim that limit mitzvah haba’ah b’aveira to mitzvos of ritzuy are speaking only of the disqualification of the object, which is limited to specific cases.

The nafka minah between these views: what if a person ate in a stolen sukkah on Chol haMoed? If mitzvah haba’ah b’aveira only negates the credit one would have gotten for doing a mitzvah, since there is no mitzvah to eat in a sukkah on chol ha’moed anyway (e.g. one can avoid eating bread), there is no loss. However, if mitzvah haba’ah b’aveira disqualifies the object, eating in a stolen sukkah would be like eating in a sukkah without proper schach/walls, and would be prohibited.

Tuesday, August 24, 2010

mitzvah haba'ah b'aveira (I)

The gemara (Sukkah 9) derives from a pasuk, “ta’aseh lecha,” that a stolen sukkah is disqualified for mitzvah use. The Rishonim are troubled by the need for a derasha to teach us this din. We know that any stolen object, such as a stolen lulav, is disqualified for mitzvah use because of the principle of mitzvah haba’ah b’aveira. Why then do we need a special limud to disqualify a stolen sukkah?

Tosfos (Sukkah 9) answers that the principle of mitzvah haba’ah b’aveira should in theory apply to a stolen sukkah as well, but mitzvah haba’ah b’aveira is only a derabbanan disqualification. The gemara cites a pasuk to prove that a stolen sukkah is disqualified even on a d’oraysa level.

Other Rishonim answer that the principle of mitzvah haba’ah b’aveira does not apply in the case of sukkah because mitzvah haba’ah b’aveira only applies to mitzvos objects used for “ritzuy,” for supplication, like a korban, like a lulav (na’anu’im), etc.

The Ritva challenges this approach, as it seems to contradict a sugya in the Yerushalmi (Shabbos 13:3). The Yerushalmi distinguishes between stolen matzah, which is disqualified because of mitzvah haba’ah b’aveira, and matzah carried in a public domain on Shabbos, which is not disqualified. In the former case, “taman gufa aveira,” the matzah itself is tainted by the act of theft; it is stolen goods; in the latter case the act of carrying has no effect on the matzah itself. Be that as it may, matzah is not a “ritzuy” type mitzvah. Nonetheless, stolen matzah according to the Yerushalmi is disqualified because of mitzvah haba’ah b’aveira.

Is there a way to reconcile the view of these Rishonim with the Yerushalmi?

Monday, August 23, 2010

What Amon and Moav did wrong

The Torah explains the reason for the prohibition against accepting male converts from Amon or Moav is because of their failure to bring food and wine to Bnei Yisrael in their time of need and the fact that they hired Bilam to curse Bnei Yisrael. Women are excluded from the prohibition. The Bavli explains that Amoni and Moavi women obeyed social norms of modesty and could not be expected to leave their home to bring supplies; therefore they are not blamed.

The Yerushalmi is not satisfied with this explanation (Yevamos 8:3). Even if women would not come out to serve men, why, asks the Yerushalmi, did the women not come out to bring food to the women of Bnei Yisrael? The Yerushalmi answers that the prohibition against the men depends also on their having hired Bilam. Since men alone and not women had the power to advise on this plot and initiate it, only they are blamed and punished.

The meforshim on the Yerushalmi ask: if the trigger for the prohibition against the men was the hiring of Bilam, then it should follow that only Moav and not Amon should be blamed, as only Moav was involved in this plot?

Ramban interestingly reads the pasuk as offering two separate reasons: Amon was punished for the failure to offer supplies; Moav was punished for hiring Bilam. However, the Bavli (Sanhedrin 103) indicates that it was over a matter of food that both Amon and Moav were punished. I'm not sure that the Ramban need necessarily account for that aggadita in his reading of pshat, especially given that his reading is very close to that of the Yerushalmi (which he references).

The Ramban, however you square his reading with the gemara, avoids the potential pitfall of applying both reasons in the pasuk equally to both Amon and Moav, which seems like overkill – why is one reason alone not sufficient to justify either nation’s punishment? From a musar perspective one might suggest (my wife’s idea) that the lesson here is that the two reasons are in fact equivalent – the lack of midos in failing to provide supplies is no less a crime than the hiring of Bilam to offer his curses. Other solutions are offered as well. The Dubno Maggid has a clever approach: Amon/Moav might have justified their failure to help Bnei Yisrael by claiming that supplies are valuable and they cannot afford the drain on their GDP to help other nations. Yet, as the pasuk immediately notes, these same nations of Amon and Moav had the resources and wealth to hire Bilam to curse Bnei Yisrael! Their very actions negate any claims for mercy they might advance. The lesson here speaks to us as well. The person who claims he has no time to learn but somehow finds time to spend elsewhere, or who claims no means to donate to charity but finds the means for a new car or a lavish vacation, negates his own arguments.

Friday, August 20, 2010

blaming the victim

It is inevitable that at some point in one’s learning one will encounter a statement(s) of Chazal and/or Rishonim that seems out of line with one's own moral compass. How is one to square what Chazal or the Rishonim teach with one’s own sense of justice and fairness? The solution to these type questions will generally fall into one of three categories: 1) denial of the validity of our moral compass, usually accompanied by the argument that our moral compass is influenced (or corrupted, depending on how strongly one wants to formulate this position) by Western thought, which the Torah transcends; 2) denial of the superiority of Chazal’s moral virtue, usually accompanied by the arguments that Chazal were influenced by their own cultural and social mores as well as the fact that their moral teachings are not absolutely binding in the same sense halacha is; 3) attempts to bridge the gap by contextualizing Chazal or showing that our own moral compass is not absolutely at odds with their moral teaching. Many on the right show more sympathy than I do for the first approach; many on the left show more sympathy for the second. My preference is for the third approach.

So much for the general; I want to focus on the specific problem of Rashi’s attitude towards rape. The Torah in Ki Teitzei distinguishes between two different cases of sexual assault: the case of rape in the field, where there are no onlookers, and the case of a supposed assault that takes place in the city. In the latter case, since the woman did not cry out for help (when such help would have been available), the assumption is that she consented to the act taking place and she is punished along with her attacker. Commenting on the description of the attacker “finding her in the city,” Rashi (22:23) writes that it is the very fact that this woman wandered out into the city that invited the situation. Rashi’s comment here brings to mind his comment on the episode of Dina’s rape, “VaTeitzei Dina bas Leah,” (Braishis 34:1) where he explains that Dinah did not act as Ya’akov’s daughter should, as she "went out", and therefore precipitated the situation.

Is this not blaming the victim? While the case could be made that the woman our parsha is speaking about is not a victim, as her lack of protest indicates consent – she is an adulteress – yet it is still noteworthy that she alone and not her male partner is criticized for inviting the opportunity for such a liaison to take place. Furthermore, the Netzi"v explains that the command, "V'la'na'ara lo ta'aseh davar," not to punish the woman in a case of rape in the field, is necessary because although this is a clear case of "ones," unwilling sin, without the pasuk one might have thought the woman should receive some punishment for being out of the home. Certainly Dina was a victim, and she is criticized. Is one to be blamed for being mugged, or does the guilt lay at the muggers feet alone?

One approach to understand Rashi, taking option #3, is to contextualize his comments. “Going out” to the city in Tanach was not the same as a woman taking the subway to Manhattan today. Our parsha tells us that Amoni and Moavi men may not marry into Bnei Yisrael because of their failure to show compassion to Bnei Yisrael by bringing them food and drink when Bn”Y were in desperate straits. Why do the women escape blame? Chazal explain that women did not venture out of the home, therefore they cannot be blamed for not going out with food. We see that kol kvudah bas melech pnima is not limited to the Jewish people, but was part of the value system of antiquity (my wife gets the credit for this observation). A woman “going out” alone would have been promiscuous behavior, inviting an “accident” to happen.

I would like to suggest a different approach, or maybe another layer to the previous one. Robert Mnookin, director of the Program on Negotiation at Harvard Law School, in one of his books draws a distinction between consequences and blame. Mnookin writes that when trying to discuss or negotiate while in conflict with another party, the conversation often fails because each side tries to shift the blame to the other party. Who’s at fault overshadows any discussion of what happened and what can be done to correct the situation (sounds like most business meetings : ) Successfully charting a course away from conflict demands shifting the frame of discussion from blame to an exploration of the consequences of each sides behavior, regardless of who is right and who is wrong. If the behaviors that create the conflict can be changed, a settlement can be reached.

Perhaps Rashi’s comments about “going out” need not be taken as a statement of blame, but rather as a statement of consequence. Mnookin (if I recall correctly) does not hesitate in his book to say that a person who is mugged contributed to the consequences – but contributing to an event does not mean one is at fault or to be blamed for what happened.

I don’t know if my reading can stand on its own; I think both approaches together make the most sense. What do you think?

Wednesday, August 18, 2010

the sin of avoiding doubt

The Chasam Sofer is known for his conservatism (e.g. “chadash asur min haTorah”); it was therefore striking to see his comments in last week’s parsha (link, d"h v'kamta) extolling the virtue of questions. “Ki yipaleh mimcha davar,” when you have doubts and uncertainty, “v’kamta v’alisa,” you will grow and rise to greater spiritual heights from the experience. Hashem sends us doubts and questions and to ignore them is to push aside the opportunity for discovery. The Chasam Sofer goes so far as to say that one will be punished for such complacency. The struggle to understand, not the acceptance of pre-established truths, is at the heart of religious development.

There are, of course, dangerous question. Pharaoh asked, “Mi Hashem asher eshma b’kolo?” – Who is G-d that I should obey him? But, writes the Chasam Sofer, the Torah assumes and promises that well meaning questions, questions that are rooted in the pursuit of knowledge and understanding, will not lead one astray. Later in the parsha we read that if, “V’shamarta kol chukav kol hamachala asher samti b’Mitzrayim lo asim alecha,” if one observes the chukim, then Hashem will provide protection from the afflictions of Mitzrayim. The Hafla’ah explains that if we cherish and guard (shamar = guard) that which we cannot yet understand (chukim) and are undeterred in our pursuit of answers, Hashem promises us that He will protect us from falling prey to the doubt-disguised-as-questions which afflicted Pharoah.

My son told me recently that he heard someone relating a conversation that he had had with a certain Rosh Yeshiva who learns and teaches Maharal weekly. This individual, someone who appreciates the greatness of Maharal, asked the R”Y why these Maharalian type issues are not discussed with even younger yeshiva students so that they too can appreciate the depth of our hashkafa. The R”Y answered that we do not want to lead students to have too many questions. B’mechilas k’vodo, the cat’s out of the bag! By not learning hashkafa with students you are not safeguarding them from questions – you are just depriving them of much needed answers.

R' Shimon Shkop on why we must obey dinim derabbanan

The Rambam reads the command to obey Beis Din,“lo tasur,” found in parshas Shoftim, as the source of our obligation to obey all dinin derabbanan. Ramban disagrees. He argues that if our obligation to follow dinin derabbanan stems from a pasuk, then every violation of a din derabbanan is potentially a violation of this d’oraysa of lo tasur. There should therefore be no difference between dinim derabbanan and dinim d’oraysa – but there certainly are differences, e.g. sfeika d’oraysa l’chumra, sfeika derabbanan l’kula.

According to the Ramban, if “lo tasur” does not bind us to follow dinim d’rabbanan, what does? In the past (here, here) we discussed R’ Elchanan’s answer to this question: the Chachamim reveal to us what the ratzon Hashem is; Hashem’s will obligates our obedience even without a formal command. R’ Shimon Shkop offers a slightly different answer that I can only describe as very R’ Shimon-ish. Here’s a link to the page in Sha’arei Yosher (I:7 d”h v’nireh). R’ Shimon suggests that logic (the seichel) and logic alone is sufficient to obligate one to follow Chazal. Chazal’s enactments are by definition just and good. One does not need a new mechayeiv, a new legal mechanism, to create a sense of obligation to do that which is right – the sense of obligation to do that which is just is innately part of our being.

Friday, August 13, 2010

elementary my dear watson

I'm too tired today to do a serious post and I haven't written about books in awhile, so let's do that for a change. I have tried reading many recreations of Sherlock Holmes, always hoping someone will succeed in bringing the great detective back to life, yet I always end up disappointed. I'm sorry, but Sherlock Holmes in Minnesota (to take one example) just doesn't work. The best I have found so far (and this shows you just how bad the pickings are) is some of the Laurie King stuff, but the substitution of a Jewish girl for Watson reaches its limits. Finally, I have found the holy grail. Will Thomas’ Barker and LLewelyn series is as good as it gets. No, it’s not Holmes and Watson, but the period setting is the same and the characters have so much in common with the original pair that you will love it just the same. My only complaint is that the mysteries are more adventure stories than true puzzles in the Agatha Christie sense, and at times the ending seems a bit forced or abrupt, like the author wasn't sure himself how to wrap things up, but these are really just quibbles and don't detract much from the overall enjoyment of the read. The first in the series, "Some Danger Involved," involves the Jewish community of London. The portrayal of Jewish life is a mishmash of partially correct information mixed with some glaring mistakes, but considering the author lives out there in Oklahoma, I'm willing to give him a pass and say nice try. If anyone knows a better series that imitates the great detective (or a great classical detective series I haven't read), please speak up.

Earlier in the summer I read Jeffrey Gurock’s “Orthodox Jews in America,” which may be of interest to some. Hopefully it comes as no surprise that Orthodoxy has evolved greatly since the early 1900's when most of our ancestors arrived. For example, once upon a time Orthodoxy made a concerted effort to try to keep as many people under its umbrella as possible, with “traditional” congregations that had mixed pews and synagogues that held 8:00 Friday night kabbalas Shabbos services even in winter to accommodate those that had to work late being semi-tolerated on the fringes. Day schools were a rarity, and the survival of Orthodoxy was seriously in question. Thank G-d we have “improved” to the point that we now have Orthodox Jews to spare and can now toss folks out of the fold without batting an eyelash (OK, maybe that was too cynical a comment). Be that as it may, the book’s weakness is its overemphasis on the YU/Ramaz world which the author is most familiar with. I think there is something like 50,000 Satmar in America, perhaps a greater number than all those who identify as modern orthodox, yet I don’t think they get a single page. Lubavitch gets a page or two. A complete history this is not, but it’s still worth a look.

I can't say I have read much else lately that has captivated me. Tyler Cowen is intriguing (I like behavioral economics, social and cognitive psychology, and he mixes it all together). I enjoyed the new bio of Antonin Scalia. I’m in the middle of Eric Metaxes’ bio of Dietrich Bonhoffer, but it is slow going and I would have liked more on Bonhoffer's intellectual output and more insight into his psychology. Any recommendations? My tastes are pretty eclectic, so surprise me.

Thursday, August 12, 2010

shoftim: personal justice

“Shoftim v’shotrim ti’ten lecha b’chol she’arecha asher Hashem Elokecha nosein lecha li’shevatecha…”

I count no less than five possessives in the command to appoint judges contained in first sentence of Parshas Shoftim: lecha, she’arecha, Elokecha, lecha, li’shevatecha – judges for you, in your gates, given by your G-d, to you, to your tribes. The command to appoint judges is personalized to a degree that I don’t think we see with respect to other mitzvos, but I think there is good reason for that.

Rav Shach (heard from Rav Leiff) was once asked by a close talmid for advice on how to improve himself – advice we could all use as we enter the month of Elul and draw closer to Rosh Hashana and Yom Kippur. Rav Shach replied that he could offer no answer, but no answer was really needed. He explained by elucidating the following gemara:

Chazal (Nedarim 81a) tell us that the prophets, the wise people, the scholars, were all asked why Hashem was going to bring about the churban Beis haMikdash. None could offer an answer. Finally, with no one left to ask, Hashem himself revealed the reason for the destruction. The gemara cites a pasuk and interprets it to mean that it was the failure to recite birchas haTorah which caused the churban. The Ran explains the enigmatic answer to mean that although many people were learning, the failure to recite a bracha indicated that they did not assign as much importance to their learning as they should have (other interpretations are offered).

How could Hashem fault the Jewish people and punish them with the horror of churban when they were unaware that they were doing anything wrong? The gemara itself tells us that even the Chachamim and Nevi’im did not see the problem! Is it fair to hold people accountable for crimes that could not have been known?

Rav Shach answered that the Chachamim and Nevi’im may not have been able to detect the problem, but each person knew in his heart exactly what was wrong. An outsider, no matter how great his wisdom, no matter how great his prophetic gift, can often miss what we all know deep down are our own shortcomings and failings.

Rav Shach told that talmid that he could not prescribe for him what he needed to do during the month of Elul to improve himself, but undoubtedly, if that talmid searched his heart, he would discover that he already knew the answer.

Our parsha is speaking not only about the obligation to establish courts and police in society at large, but about our obligation to police ourselves and judge our own actions. This type of judgment requires introspection, it is intensely personal, and hence the language of our pasuk – appoint judges for yourself, as commanded by your G-d, for your own gates. More important than any musar sermons or advice that we might receive from others during this month of Elul is the thoughts we might take away from an honest assessment and judgment of ourselves.

Wednesday, August 11, 2010

kol isha -- kri'as haTorah and davening

The reactions to Rabbi Weiss allowing a woman to daven kabbalas Shabbos are perhaps typical of the jblogsphere. I saw someone write that he doesn’t know if it’s a halachic problem of kol isha or not, but it’s definitely not Orthodox (maybe more on that in another post), while others offered their own sevaros as to why kol isha is irrelevant without any regard to the sources. I don’t know where the discussion ends, but, like any other halachic issue, I don’t see how the discussion can even begin without looking at the sugya.

The Ba’al haIttur is quoted as saying that a women may not read megillah for men because of kol isha. Were that all there is to say, this would be a very short discussion. I don’t think there is much wiggle room to distinguish between reading megillah and davening kabbalas shabbos.

However, not only do the other major Rishonim not mention a concern of kol isha (in fact, according to Rashi women may read the megillah for men), but there also seems to be an open gemara that proves kol isha is not a problem in this context. Chazal tell us (Meg 23a) that a woman could theoretically get an aliya on Shabbos -- and in the days of Chazal the one who got an aliya would read the parsha – if not for concern for kavod hatzibur (which Rishonim define in different ways and is a separate discussion). If reading megillah or reading the Torah with the trop / tune constituted kol isha, why would the gemara invoke the principle of kavod tzibur and not the categorical issur of kol isha? With a little thought one can even come up with potential nafka minos where kavod hatzibur is not a problem (can a tzibur be mochel their kavod?) but the prohibition of kol isha would remain in force – so why not mention the more encompassing issur?

The reason to exclude Torah reading from the prohibition of kol isha is easy to understand if one assumes that the issur of kol isha is a safeguard to prevent a man from being tempted to immorality by the seductive voice of a woman. The singing of Torah pesukim in the context of davening is unlikely to be the sort of seductive singing that would lead to sin. Along these same lines, the Sdei Chemed quotes the Divrei Cheifetz that singing “zemiros kodesh” is not a problem of kol isha.

In a nutshell, that’s how the battle lines shape up (of course, with more detail and nuance found in the sources). On the one hand: the Ba’al haIttur. On the other hand, a sevara to the contrary rooted in logic advanced by earlier and bolstered by a question from an open gemara against the contrary position. Whether that's enough to convince you is the question.

Again, the same rules that apply to other issues apply here. The discussion starts with the sources, but discretion and good judgment are the final arbiters of what should be done in practice.

Monday, August 09, 2010

yerushalayim lo nischalka l'shevatim

Parshas Re’eh tells us that the Mikdash should be built, “Bamakom asher yivchar Hashem Elokeichem m’kol shevateichem,” (12:5) on land chosen or taken from all the tribes, yet later in the same parsha we are told that the Mikdash should be built, “Bamakom asher yivchar Hashem b’acahad shevatecha,” on land taken from one particular tribe. Which is it?

Rashi explains that the Mikdash was built in the portion of a single tribe, Binyamin. However, before building the Mikdash, the property had to be purchased from the Yevusi nation. The money used to purchase the land rights was collected from all the tribes.

There is a major dispute among the commentaries as to how to understand this Rashi. When Eretz Yisrael was conquered, Yehoshua had to apportion the land and divide it among the various tribes. The gemara has a machlokes whether “Yerushalayim nischalka l’shevatim,” whether Yerushalayim was apportioned to one particular (or more than one) tribe, or whether Yerushalayim was never apportioned, akin to the status of Washington D.C., which is part of no individual state.

Mizrachi reads Rashi’s assertion that the Mikdash was built in the portion of Binyamin as consistent with the view that Yerushalayim was nischalka l’shevatim and belonged to an individual tribe. Sifsei Chachamim disagrees. He suggests that even if the city of Yerushalayim was perhaps never split among shevatim, the Mikdash itself belonged to the tribe of Binyamin.

My wife suggested an insightful reading of Rashi that does not force us to take sides as to whether Yersushalayim was or was not nischalka l’shevatim. The gemara’s debate of whether Yerushalayim was nischalka l’shevatim or not is a question of ownership, property rights. Rashi, however, is not concerned here with ownership, but rather with geography. Whether or not Binyamin was the formal owner of the land in question or not does not change the fact that on a map Yerushalayim and the Mikdash looks like they are part of Binyamin’s territory. No matter who owned the land, the location of the Mikdash can be described as being part of Binyamin's lot.

Using this idea we can also resolve a question raised by Tosfos (Yoma 12a). The south-east corner of the mizbeiyach did not have a base because, explains the gemara (Zevachim 53), it was the only corner that did not fall into the portion of Binyamin. If one holds that Yerushalayim lo nischalka l’shevatim, then why should this one corner be different than any other – Binyamin did not own any of the land? The answer perhaps is that the gemara means that the mizbeiyach was built on the land that geographically fell out in Binyamin’s portion, even if Binyamin was not the formal owner of that property. The only exception was the south-east corner.

(This approach is similar to a distinction drawn by RYBS between dinei mamonos ownership rights and divisions based on the mitzvah of chalukas ha’aretz. In terms of reading Rashi, my wife’s approach seems simpler.)

Friday, August 06, 2010

menucha v'nachala -- Shilo and Yerushalayim

I’ve gotten involved in a bit of a time consuming project at work, so less time to write, but I did want to make sure to get in a thought on the parsha. “…Ki lo ba’sem el hamenucha v’el ha’nachala” is interpreted by Chazal as a reference to the establishment of the Mishkan in Shilo (menucha) and then the building of a permanent Mikdash in Yerushalayim (nachala). Among the halachic differences between Shilo and Yerushalayim is that kodshim kalim could be eaten anywhere within view of the Mishkan at Shilo; these same korbanos could only be eaten within the walls of Yerushalayim. The Shem m’Shmuel notes that this seems counterintuitive. Surely if simply being in eyesight of the Mishkan at Shilo was sufficient to create that sense of awe and kedusha that went hand in hand with eating kodshim, being within eyesight of the Mikdash with its greater kedusha should accomplish the same. Why then could kodshim be eaten only behind the walls of Yerushalayim?

Since the topic of tzniyus has come up these past few days, I want to revisit the definition of true tzniyus (please see this post). Chazal tell us that even Torah requires tzniyus (Sukkah 49b). Maharal (Nesiv haTzniyus ch 1.) explains that this is so because Torah has a "madreiga pnimis," a "madreiga nisteres." Torah has depth. Every parsha and sugya is like the top of an iceberg that protrudes above the sea, providing just a hint of the vastness which lies below. A person who embodies tzniyus is a person of depth, a person who is defined not by their clothes or hat or by a sound-bite, but a person whose character remains hidden and not on public display. Just when you think you have the person buttonholed, you discover that there is a deeper more pnimiyus aspect to the person's whole personality that you had previously overlooked or not seen. That's a person who is tzanu'a.

It is precisely because Yerushalayim was superior to Shilo in its holiness that kodshim kalim could only be eaten within its walls. The kedusha of the Mishkan was (relative to that of the Mikdash) superficial – it could be taken in just by viewing the building, even as a person remained standing outside. The kedusha of the Mikdash was on a deeper level. It could only be apprehended by those willing to divest themselves from the world at large and come within the walls of Yerushalayim, a place of seclusion, of tzniyus.

Monday, August 02, 2010

achila or sevi'ah: why do we have to bentch?

There has been much ink spilled over a question raised by R’ Akiva Eiger regarding bentching. What is the din if a minor ate a meal before nightfall, bentched, but is still in a state of seviah, satiation, after dark when he turned bar mitzvah? Does he need to repeat bentching now that he is halachically an adult?

The question may hinge on what creates the obligation of birchas hamazon which we learn from the pasuk of “V’achalta v’savata u’beirachta…”:
1) Is it the act of eating, achila, which obligates one to bentch, and “v’savata” is just a description of the amount that needs to be consumed?
2) Is it “v’savata,” becoming satiated, which obligates one to bentch, provided that satiation comes from eating?
3) Is it a combination of both eating and feeling satiated?

If an act of eating is required to create an obligation to bentch, then one could argue that a halachic adult who has not eaten has no obligation to bentch. However, if satiation, “v’savata,” creates the obligation to bentch, then if that adult is satiated from having eaten, even if the act of eating took place when he was a minor, perhaps he must bentch.

The Magen Avraham similarly discusses a case where someone ate little bits at a time, which halachically does not constitute eating, but after doing this for awhile the person felt satiated – does he have an obligation to bentch? The question seems to hinge on the same issue of whether bentching depends on satiation alone or requires an act of eating.

One could argue that R’ Akiva Eiger’s case is a little different. An act of eating was done, albeit by a minor. Perhaps one could argue that the actions of a minor should not be dismissed as halachically insignifcant; even if there was no d'oraysa obligation on the minor to bentch, his act of eating may trigger such an obligation once he becomes bar mitzvah.