milah before 8th day and reasons for mitzvos

The gemara (Brachos 32) presents two reasons why one is not permitted to say “ad kan tzipor tagiyu rachamecha” in davening – 1) because saying G-d is merciful on birds implies he is less merciful on other creatures, which breeds enmity in creation; 2) because G-d’s commandments are decrees; G-d is not motivated by extrinsic reasons like mercy (see previous posts on this issue. The Midrash sides with the view that mitzvos are given to be merciful, and tosses into this same discussion the commandment not to sacrifice an animal less than a week old and to perform milah only on the eighth day so the animal and baby have a chance to reach full strength.

The Sidduro shel Shabbos (shoresh 4) suggests that the machlokes (Rama/Shach Y.D. 261) of whether a baby who was given a milah before the eighth day needs hatafas dam bris depends on this issue. If the reason for waiting until the eighth day sis simply a gezeirah with no reason, then the preceding days count for nothing. But if the reason for waiting until the eighth day is to be merciful to the baby, if one went ahead and did the milah early there is no reason ex post facto to invalidate the bris. (Litvishe readers, please don’t jump on me too much for posting this : )

harry potter, etc.

A brief break from the regular topics for a word on Potter. At the beginning of the summer I told my daughter if she wants some reading to keep her busy do she might try the Harry Potter series, and I volunteered to read in parallel (for some reason none of my other kids were interested in Potter). She is still going, but I finished book seven yesterday (not quite a siyum because I skipped book one, having read it years ago, and I skipped book five because my daughter and wife were reading it as well and I could not pry it away). First of all, I hate to put it so crudely, but the thought by some that reading books about magic will lead children astray from frumkeit is simply silly, as is the idea that the series has Xstian overtones. If you want Xstian overtones read “The Lion, the Witch, and the Wardrobe” (arguably better than any book in the Potter series). As for the meat and potatoes of the series: I read the first book years ago and thought it was second rate, and while the series as a whole has many bright patches, nothing has caused me to think of Harry Potter as great literature. The books do get better as the series goes on, but it seems to me that many of the characters are two-dimensional, the morals in the early books seem afterthoughts to the plot, at points the story drags for no reason, and there is a general superficiality to all the themes touched on. I do like the way Rowling manages to tie the plot together in the end, but Potter is too much about plot and not enough about thought and feeling. At one point in watching one of the DVD’s I noticed that there was a Dickensian quality to the Diagnosis Alley set, which left me wishing Rowlings had borrowed more from Dickens and less from Star Wars (was the revenge/control idea at the end of five lifted straight from Return of the Jedi?). Don’t get me wrong – the books are good, they are entertaining; they just fall short of being truly great. I have now seen all the movies as well, and they seem to improve as the series goes on (the critics are way off base on their disappointment with five). Even before hitting book seven (no spoilers for those who haven’t read it) my favorite character was Snape (I think my wife said it has something to do with my personality : ), but it’s not much of a contest – what exactly does Prof McGonagall do that would interest anyone? And aside from popping up at the end to deliver some contrived moral, and appearing all knowing, what makes Dumbledore worthy of our interest in the early books? Oh well – I’ll stop complaining now. Maybe I’ve just outgrown this type stuff (though I have enjoyed what I have read of "A Series of Unfortunate Events"). I haven’t read fantasy or sci fi in ages so I have little to compare Potter to… is Rowling maybe another E Nesbit? I imagine the series is better than much of what is out there, but I still feel that something that gets so much attention should be truly great and not just good or above average. For those who have done the usual (Dahl, Pullman, Sachar, L'Engele, the Potter series, etc.) any recommendations of undiscovered gems that we should read?

mamzer talmid chacham vs. kohen gadol am ha'aretz

The last Mishna in Horiyos lists the order in which people should be saved in a life-or-death crisis (e.g. who gets in the lifeboat first): kohen, levi, yisrael, mamzer, nasin, ger, freed slave. However, concludes the Mishna, this rule is true only where comparing people of equal scholarship - even a mamzer who is a talmid chacham takes precedence over a kohen gadol who is an am ha’aretz.

My son was medayek: if the Mishna wanted to contrast the extreme cases of a talmid chacham with tainted lineage vs. the kohen hagol am ha’aretz, why choose the case of a talmid chacham mamzer? The Mishna should have illustrated the point with the most extreme case of bad lineage, the case of a freed eved!

The Tiferes Yisrael makes the same observation and concludes that a talmid chacham who is a nasin, ger, or freed eved would not in fact take precedence over a kohen gadol. The status of talmid chacham only tips the scales in favor of someone who is a yisrael, levi, or mamzer.

On that note, my son gets a mazel tov for finishing the mishnayos in Seder Nezikin, which was certainly a productive use of his summer break, and I am happy to see he is learning to make diyukim and ask thoughtful questions.

kedushas eretz yisrael (II)

Two other sources for the distinction between kedushas ha’aretz and the “shem” Eretz Yisrael:

1) The Rambam writes (Rotzeiach 10:1) that eglah arufah can be performed only in Eretz Yisrael and Eiver haYarden. Even though Eiver haYarden has no kedushas ha’aretz (though see previous post here) it is still within the boundaries of land designated as belonging to Am Yisrael.

2) R’ Ahron Soloveitchik quoted the opinion of the Kaftor vaFerach that the issur of leaving Eretz Yisrael applies even to those places conquered by Yehoshua, whether or not they were re-conquered by Ezra. The Ramban similarly writes (beg of Gittin) that the concept of loving Eretz Yisrael extends even to those portions which have no kedushas ha’aretz but are part of the land promised to the Avos.

kedushas eretz yisrael

The Rambam (Sanhedrin 4:6) quotes the halacha that smicha can be given only in Eretz Yisrael, the boundaries of which are defined by those areas captured by Yehoshua.
וכל ארץ ישראל שהחזיקו בה עולי מצריים, ראויה לסמיכה.

The Minchas Chinuch asks: the Rambam elsewhere (Hil Terumos 1:5) writes that the kedusha of Eretz Yisrael established by Yehoshua’s conquest was negated by the first exile; Eretz Yisrael was resanctified by Ezra when the nation returned from Bavel, and only areas sanctified by this second enduring kedusha are included in the halachic boundaries of Eretz Yisrael. Why with respect to smicha does the Rambam refer to the original boundaries, which were negated?

Rav Soloveitchik quoted an idea from his father to answer this question. In Hilchos Terumos the Rambam is discussing the sanctity of the land viz. agricultural mitzvos. In that context, the Rambam addresses himself to defining what areas of the Land were endowed with kedusha by Ezra. However, the idea of Eretz Yisrael as the land chosen by G-d and promised to the Jewish people encompasses far more area than that which Ezra reclaimed. When it comes to smicha, the Rambam invokes this far broader concept. Smicha is not dependent on the sanctity of the land, more broadly on the idea of a promised homeland in which the transmission of mesorah can function as an ideal. There are many other proofs to this idea of R' Moshe Soloveitchik - maybe more on this in later posts.

psak on hashkafa and the issue of suffering

Shabbos 55a quotes Rav Ami that “ain misah b’lo cheit v’ain yisurim b’lo avon”, there is no death and suffering not caused by sin. After some back and forth, the gemara concludes with a “tiyuvta d’Rav Ami tiyuvta”, Rav Ami’s opinion was proven wrong because of a contradictory braysa.

I’m wondering how those who are convinced that there can be no psak in areas of hashkafa/belief read this gemara? If the gemara can label a belief wrong because of contrary evidence from a braysa, why can we not label a belief wrong because of contrary evidence from a majority of Rishonim? What’s the difference between saying Rav Ami held a view which the mesorah rejected and saying some Rishonim held views which the mesorah rejected?

While on the topic, Rashi’s writes (Brachos 5) that yisurim shel ahavah are brought on a tzadik to increase merit, not in response to any sin of the tzadik. Ramban in Toras haAdam rejects this idea that suffering can occur without sin (see previous post here). According to the gemara’s conclusion that Rav Ami is rejected, the Ramban’s argument seems much weaker.

batei din of the shevatim and lo tasur

The Ramban interprets the command to appoint a Bais Din “lishvatecha” to mean that each sheivet had a supreme court that was the final arbiter of issues that related to that sheivet and which was empowered to enact takanos:

כדרך שסנהדרי גדולה ממונה על כל בתי דינין של כל ישראל, כך יהא ב"ד אחד ממונה על כל שבט ושבט
ואם הוצרכו לתקן ולגזור דבר על שבט שלהם גוזרין ומתקנין והיא לשבט כגזרת סנהדרי גדולה על כל ישראל

Although the issur of “lo tasur” applies prima facie only to the Sanhedrin (see Rambam, Chinuch), since the Ramban compares the supreme court B”D of each sheivet to the Sanhedrin, I was wondering whether the issur of lo tasur would extend to their takanos as well.

kohen and shofet - knowledge as inspiration

When faced with a difficult case of Torah law, the Torah tells us to go to “hakohanim halevi’im, v’el hashofet” (17:8), and warns not to stray from the advice of “hakohen ha’omeid l’shareis es Hashem Elokecha, oh el hashofet”(17:12). The role of “shofet”, referring to the Sanhedrin in Yerushalayim, the “court of last resort”, is obvious in determining the final word on matters of halacha, but what is the role of the “kohen” in this process? And as if to head of our interpreting the “kohen” here as Torah-teacher, the Torah stresses the ritual role of kohen, the one who is “omeid l’shareis”, a servent in the Mikdash.

Perhaps the message of the parsha is that investigation into Torah law should be pursued not just as a quest for knowledge, but as a quest for religious inspiration and insight. Doubt about Torah law is not just a result of lack of information, but is also a result spiritual accomplishment not yet been attained.

The “shofet” can instruct and inform, but without the “kohen” to uplift, knowledge is sterile and incomplete, and doubt cannot be overcome. Only when their message is taken together can the kohen and shofet resolve the difficulties we bring before them. (based on Maor v'Shemesh)

3 Elul - Rav Kook

Today, 3 Elul, is the yahrtzeit of Rav Kook. There are perhaps no more fitting words for our time than those said by R” Shaul Yisraeli at the first yahrtzeit:

הרק חלום יפה ארג לנו רבנו זצ"ל? הרק דמיונות חזה לנו והמציאות לא תכירם? האומנם מושחתת היא נפש האדם עד תומה ואף ישראל אבדה לו נשמתו בין גלות לגלות? האמנם לריק תם הזרע אשר זרע רבנו על לבבות העם? - לא נכחד, יש ועולה רעיון זה על לבנו. יש ולמראה הכיעור והניוול, אשר עלינו להתנגש בהם מדי יום ביומו, נעקרת מלבנו כל מחשבה אצילית על האדם. עוד סיוט הדמים הולך ונמשך בימינו אלה בארץ חמדתנו, ולמה נתעלם - לא ראינו את מצפון העמים מתעורר להתריע ולתבע את הצדק. ואף גם זאת - ראה ראינו את הפירוד והמחלוקת והשאיפות הזרות אשר קנו להם זכות אזרח ברחובותינו אנו ורק צרת הרבים היא שהועילה לפכחנו במקצת.

ברם התשובה על כל ההיסוסים והפקפוקים תהיה לנו האישיות המזהירה של רבנו הגדול עצמו. הנשמה הנשגבה הזאת בעצם מציאותה היא המאשרת לנו, כי עוד רב עשרו של אוצר הנשמות הישראלי ואם עדיין לא זרחו עלינו קרני אורו - בא יבאו עתם.

It is easy to dismiss the idealism found in Rav Kook’s writings as incompatible with the political and social disharmony in Israel, as incompatible with a world filled with danger and terror. Yet think of how much dimmer our reality would be if we did not have that vision and aspiration taught by Rav Kook, which one day will hopefully be realized.

obligation to wage war and kill seven nations and amalek

The Chinuch writes that the prohibition of showing fear in battle and the other mitzvos that apply to battle (e.g. yateid al azeinecha) are incumbent upon men and not women, as women do not go out to battle. Since these mitzvos apply to milchamos mitzvah, wars against Amalek and the Seven Nations of Canaan, as well as milchamos reshus, the Minchas Chinuch asks why women are exempt - the Mishna tells us that even a kallah must go out from her chuppah to fight in a milchemes mitzvah.

The Rambam (Melachim 7:1) writes that the Mashuach Milchama read the parsha warning not to fear and granting dispensation from battle for a newlywed, someone who had just built a house, or someone who planted a vineyard before all battles, both milchamos mitzvah and reshus. Ra’avad, however, holds that the list of dispensations are not read before a milchemes mitzvah. No one is exempted from serving in battle during a milchemes mitzvah - again, as the Mishna writes, even a kallah goes out to fight (how about a kallahmagazine article on warfare?) – so there is no need to announce the normal dispensations. Why does the Rambam disagree?

Rav Soloveitchik explained that aside from the mitzvah of waging war (chovas tzibur) against Amalek and the Seven Nations, there is an obligation (chovas yachid) incumbent upon each Jew to kill members of these nations (Melachim 7:4). The participation of women in battle is not based on the communal obligation of warfare, but on their mitzvah as individuals to fight against these evil nations. This does not effect their exemption from mitzvos that relate to the communal act of war. The same reasoning applies to the reading of the Mashuach Milchama. There still exists a dispensation from the communal act of war for those people normally exempted, but they must participate in some way to fulfill their obligation as individuals to assist the destruction of evil.

why nevuah is called divrei kabbalah

I think most people would guess that the gemara calls words of a Navi “divrei kabbalah” because prophecy is received (k-b-l) from G-d, which is exactly how Rashi (Chulin 137a) explains it. Interestingly, some Rishonim (see Shita Mekubetzet B”K 2) write that nevuah is called “kabbalah” based on the same root as “koveil”, to complain, because the Nevi’im were constantly complaining about the bad behavior of Klal Yisrael.
(Prediction: someone out there is going to leave me a comment pointing me to a Mahart”z Chiyus somewhere – fire away!)

elul and y'mei ratzon

A cause/effect chakirah for Elul: Is it the spiritual toil during these y’mei ratzon which triggers the kaparah of Yom Kippur, or does the kaparah of Yom Kippur have a retroactive effect which triggers having a period of y’mei ratzon?

inspirational story

Akiva over at Mystical Paths links to (and summarizes) this beautiful story – enjoy.

kinyanei kesef

According to R’ Yochanan, the Torah recognizes kinyanei kesef, i.e. paying for something completes a purchase, but the Chachamim made a takanah that a sale is not complete until meshicha, i.e. until the purchaser claims his property. Does this takana uproot kinyanei kesef, or is it an additional level of kinyan on top of kinyanei kesef?

The Rambam in Hil Terumos (9:10) writes that if a Yisrael purchases a cow from a Kohein using kesef, even though meshicha was not yet done, the cow cannot be fed terumah.
ייראה לי, שאם מכר הכוהן פרתו לישראל, ולקח הדמים--אף על פי שעדיין לא משך הלוקח, הרי זה אסור להאכילה תרומה: שדין תורה מעות קונות, כמו שיתבאר בהלכות מקח וממכר. ואם מכר ישראל לכוהן--אף על פי שנתן הדמים, לא תאכל בתרומה עד שימשוך
It seems from the Rambam that at least l’chumra kinyanei kesef are effective.

Yet, the Rambam writes in Hil Me’ila (6:16) that if someone takes money from hekdesh and buys something with it, there is no issur me’ila until the sale is completed with a meshicha.
קנה בה חפץ, ולא משך--אם מן הגוי, מעל; ואם מישראל, לא מעל.

Achronim ask: Why with respect to terumah does the Rambam hold that kinyanei kesef are chal l’chumra, but with respect to me’ila the issur is not chal until the meshicha is done, l’kula?

me'ila = stealing from hekdesh

I mentioned last week that the issur of me’ila is a subset of gezel, but did not provide proof. It seems off the cuff from looking at some of the halachos of me’ila that it is an issur hana’ah, not a mamonos related halacha, so this is quite a chiddush, and I am not involved enough in the sugyos of me’ila to evaluate the ramifications, but this is R’ Chaim’s approach. (Parenthetically, I'm not going to rank R” Chaim’s shtickle torahs, but this particular one in hil me’ila is really a work of art and worth seeing inside.) Two amazing proofs he offers:

1) The gemara (Bava Metziya 88b) darshens from the word “re’acha” that although a worker usually has the right to eat from the field of a ba’al habayis he is working for, a worker has no right to eat from hekdesh. Tosfos asks why we need a derasha for this din – the food of hekdesh is assur to the worker m’din me’ila! Tosfos answers that we might have assumed that just like the right to eat overcomes the issur of gezel on the property of the owner, so too, the issur of me’ila is overcome. R’ Chaim asks: the gemara never entertains the possibility that a nazir worker can eat grapes because the heter to eat overrides the issur nezirus – why should the heter to eat override the issur me’ila? R’ Chaim answers that the issur nezirus is unrelated to the workers right to eat; the issur of me’ila is intrinsically related to that right. Me’ila by definition is an act of theft; if the worker has a right to eat the produce of hekdesh there by definition is no issur me’ila.

2) According to Shamai, “yesh shliach l’dvar aveira” (Kiddushin 43) with the exception of eating chalavim or an issur arayos because it is inconceivable that “zeh ne’hene v’zeh mischayeiv”, that one person should have the benefits of sin and another person should receive punishment. Tosfos challenges: we find in hilchos me’ila that a meshaleyach is chayav if his shliach has hana’ah from hekdesh?! R’ Chaim answers that while the ma’aseh aveira is one of hana’ah, the actual issur which occurs is rooted in the violation of hekdesh’s ownership, an issur gezel.

matzah made from chadash

Rashi in last week’s parsha (16:6) writes that there is no contradiction between the Torah’s command to eat matzah for six days and the command to eat matzah for seven days – matzah of chadash is permitted only for six of the seven days of pesach. Is Rashi just telling us a practical metziyus or is he telling us a din? Maharal notes that Tosfos (Kiddushin 39a) assumes matzah made of chadash cannot be used to fulfill mitzvas matzah. Tosfos asks: why don't we say that the aseh of matzah is doche the lav of chadash? Tosfos answers: 1) the aseh of matzah was given before Sinai and is different than other mitzvot aseh; 2) we do say aseh doche lo ta’aseh, but there is a gezeirah derabbanan not to eat this type of matzah lest one eat more than a k’zayis, which exceeds the shiur of the mitzvah. According to Rashi the entire question is moot - our Rashi tells us that there is a din in mitzvas matzah that precludes it being made from chadash.

kodshei bedek habayis vs. kodshei mizbeyach

I just want to expand a bit on a point raised in the comments to yesterday’s post regarding the distinction between kodshei mizbeyach and kodshei bedesk habayis. The former type of hekdesh is a function of an animal being designated for the mitzvah purpose of being a korban; the latter type of hekdesh is a result of hekdesh becoming the owner of an object. This distinction is clear from the Rambam’s ruling (Archin 6:8) that kodshei mizbeyach can be pledged to bedesk habayis, and the animal would have to be redeemed, the money donated, and then the animal offered as a korban to fulfill its original purpose; however, kodshei bedek habayis cannot be pledged for use as kodshei mizbeyach because “ain adam makdish davar she’aino shelo”. In the case of kodshei mizbeyach, the original owner retains rights to the animal, and therefore can pledge it elsewhere - hekdesh is just a designation of purpose. In the case of kodshei bedesk habayis, the ownership of the animal has changed.

Similarly, a thief would not be chayav the extra penalty for mechira if he was makdish an animal because hekdesh mizbeyach does not remove the original owner’s kinyan (Bava Kama 76).

R’ Chaim uses this idea to explain the Rambam (Meilah 2:5) that there is no issur me’ila on ashes of parah adumah, even though the parah is kodsehi bedek habayis, because the parah is also called “chatas”. The Kesef Mishne asks: what is the meaning of this “even though…” – kodshei bedek habayis are also subject to the issur mei’ila?

R’ Chaim answers that when the Rambam writes that the parah is called “chatas” he is not explaining why there IS an issur meilah - the issur meilah obviously also apply to bedek habayis. The Rambam is explaining why there is NO issur meila once the parah becomes ashes. Kodshei mizbeyach are endowed with the status of hekdesh by virtue of their being designated for the mitzvah of korban; once the mitzvah purpose has been fulfilled, the status of hekdesh is lifted. Kodshei bedek habayis are endowed with hekdesh status by virtue of being owned by hekdesh; fulfillment of a function with bedek habayis does not change its status. Even though a parah is kodshei bedek habayis, and therefore even though its function has been fulfilled by its being burnt it should remain hekdesh, the Torah calls the parah “chatas” and the rules of me’ila work like kodshei mizbeyach – once burnt, the the status of hekdesh is lifted.

Anon1 raised the issue of why kinyanei kesef are needed for pidyon of kodshei mizbeyach when fundamentally no ownership change has occurred (Anon1, correct me if I misunderstood your point). Let me answer that question with another question – the whole issur of me’ila is a form of theft from hekdesh (I know I have to defend that assertion – see R’ Chaim in Hil Meila, bl”n I’ll come back to it). How can you steal what hekdesh does not own?

I think the simple answer is that hekdesh does have kinyanim in kodshei mizbeyach, but that does not mean the ba’alim relinquish their ownership. I don’t know if it is a good analogy, but a shomer has kinyanim in an object even while the original owner is still the true ba’alim. Would a ganav be chayav for mechira if he gave a stolen ox to a shomer to watch?

recreating a shtetl in upstate NY

A local newspaper carried an ad which amazed me. On the left side of the ad was the pasuk “nos’im anachnu el hamakom asher amar Hashem oso eaten lachem…”, but this was not an aliya campaign – it was an announcement by a certain chassidic group celebrating the “establishment of a new XXXX shtetl” in Ellenville, NY.
Yes, the good old shtetl, where you could work sunrise to sunset as a tailor, woodchopper, or water carrier, where you never saw a secular book, where indoor plumbing did not exist, and where once a year you could count on the goyim to put on a nice pogrom (maybe they can hire some goyishe hicks upstate to ransack the town once in awhile just to get the right feel?). And forget Eretz Yisrael – this is where Hashem wants us to be.
Gosh, people, didn’t you ever see Fiddler on the Roof? Trying to turn the clock back 150 years is probably not a good strategy to solve the “youth at risk” problem, much less a good way to deal with reality.

Reform kids who "frum out" and kids at risk

The Jewish Week reports on the problems facing one Reform camp where some campers and counselors are rejecting the “creative experimentation” form of worship in favor of more traditional tefillah. Nebach. Now, what would happen if we got these kids who are thirsting for religion together with some of those kids from traditional yeshivos who are spending the summer hanging out in the pool halls and whatnot (see this article from yeshivaworld)? Maybe they could have a hashpa’ah? (No, I am not being facetious.)

pidyon hekdesh = kinyan kesef

I never thought about it in that way before, but the halacha of pidyon from hekdesh is not simply a din in issur v’heter, to remove the status of kedusha from an object by paying hekdesh, but is a dinei mamonos halacha of kinyanei kesef. The gemara (Kiddushin 29a) writes that if a person did a kinyan meshicha from hekdesh but did not yet pay for the object, the person must pay the increased price if the object appreicates in the interim. Even though meshicha removed the object from the reshus of hekdesh, the kinyan is not complete until payment is made (this proof is brought by R’ Moshe Soloveitchik).