Tuesday, July 26, 2005

Moshe, b'not Tzelofchad, and the details of the Law

Most kids who go to day school know the story of the daughters of Tzelofchad, part one of which is in this last week's parsha, and part two is at the end of Ma'asei. However, a careful reading of the peshat tells us a lot about Hashem's law and how it is applied. The problem: Even Divine law can't account for every single possible situation in one or two sentences. For example " Do Not Kill" seems to be straightforward. However, what about someone who is coming to kill you? can you kill them? what about war? That one sentence doesn't cover all the eventualities. We apply the Divine rules to situations as they come up.

The daughters of Tzelofchad, who was dead, wanted to take part in the inheritance of the land, which was declared to be for the male head of the household. Since there was no male head of their household, they were being left out. Moshe brings their case to God. The reply from God comes in the form of "vayomer Hashem el Moshe laymor." The classic, "God spoke to Moshe saying....." and proceded to set out rules for daughters to inherit the land of their fathers when there weren't any sons. God also sets out rules for how the extended family inherits, a sort of heirachy.

At the end of Ma'asei, the elders of the tribe of Menashe(the tribe of Tzelofchad and his daughters) complain to Moshe that, should the daugters who own land marry someone of a different tribe, the land will eventually become the property of that other tribe(because the land will be inherited by male children who will by definition be members of that other tribe), and the land of Menashe will diminish. In this case, the Torah doesn't record Moshe going to Hashem and asking a question. Instead the wording is "Va'Yitzav Moshe et b'nai Yisrael al pi Hashem lamor" Moshe instructed/commanded the children of Israel according to the word(lit. by the mouth) of Hashem saying: Ze hadavar asher tziva Hashem l'vnot Tzelofchad lamor- this is the word that Hashem commanded to the daughters of Tzelofchad saying.

In other words, Moshe doesn't go back and ask Hashem for the answer, like he did the first time. This time he instructs the people 'according to the word of Hashem.' Now, the believer can say that what that the words literally mean from the mouth of Hashem. However, it seems to me the common usage of al pi in Torah is that it does not denote a new utterance, but means consistant with or in accordance with a previous utterance. So, Moshe takes the rule that Hashem gave, and interprets it govern the circumstances that he is confronted with. Clearly what Moshe comes up with is not contained in the initial rule, or at least it wasn't written out, and the elders of Menashe obviously didn't know this new info, or they wouldn't have asked the question. We are left with the conclusion that Moshe derives the new rules on his own, based on his understanding of the previous utterence of God. And his solution is that women who want to maintain their inherited land have to marry someone from their own tribe. Ironically, the new rules serves to eliminate 11/12ths of the eligible men from the dance card of the daughters of Tzelofchad, or any other land owning woman who wants to maintain her ownership of that land.

What is my point? Firstly, we have(I think) the first instance of interpretation of what you could call Halacha to make it apply to a situation that was not obvious from the letter of the Law. Secondly, for the liberal in me, it shows how the Law of God can be interpreted, starting with the Word of God protecting the rights of women, and winding up with the words of man(albeit Moshe) restricting the rights of women(a theme expanded upon at length by R. Eliezer Berkowitz in Jewish Women in Time and Torah and to a lessor but still signficant extent by R. Y.H. Henkin in Equality Lost).

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Artscroll redux

The ADDeRabbi has a review of the Artscroll women's siddur here. and a further comment here. I had earlier posted my objections to the Artscroll translation/commentary on Shir ha'Shirim. The bottom line is that certainly Artscroll has made many texts available to many many non-Hebrew speakers. They have simplified learning. But they have also used their Bill Gates-like near monopoly(not their fault that they have this monopoly, but it is one none the less) to promulgate their view of Judaism, rather than a more ecumenical(covering the spectrum of orthodoxy, I am not meaning that they need to include reform perspectives) Orthodox view. Since Judaism takes "facts on the ground" into account in issues of Law(minhag has halachic power) establishing "minhag artscroll" and reinforcing it via myriads of publications diminishes those who do not hold by this minhag. Also, by presenting one view as THE Way when in reality there are a number of legitimate opinions, Artscroll manages to eliminate any debate or thinking from those whose sole source of information is Rabbenu Artscroll.

While I certainly agree that they are entitled to print what they want, and to push their viewpoint above any other, It is wrong to portray halacha as a monolith supporting only what they see as correct.

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Tuesday, July 19, 2005

The Role of God in psak

When I first started thinking about halacha, I assumed that there was a "right" answer for halachic questions. That, if one knew enough, thought hard enough, and had the right intangibles, one could find the answer that God wanted. Or, even if one couldn't find the right answer, that right answer did exist, and finding it was the goal. In other words, God has the answer for all of our halachic questions, but sometimes we cant find it.

The Gemara records the famous story of the dispute over the oven, and despite R. Yehoshua calling in miracles, and even a bat kol(voice from heaven), the issue is decided by a majority of rabbis, not the voice from heaven. In fact, Moshe is the only prophet from whom we take explicit normative data. "Lo ba'shamayim he"- it is not in Heaven, the law is for us to decide.

So, it turns out that there may not be an exact right way that God wants, and, even if that way exists, it only has validity if the majority agree with it. But who are the majority? Who gets to be counted? How do they decide? Obviously, there are tools and parameters to establish psak: Torah, Nach, the ways to establish concepts(rabbi Yishmael's 13 for example), Mishna, Gemara, and then Rishonim, Acharonim, and more books and opinions. But, not everything published gets accepted.

We seem to rely on those who we think have an idea of what God would want. In other words, some form of da'at Torah. Now, da'at Torah can have a minimalist meaning: only that the person possessing it(by studying the Torah) has an idea of what the Torah intended, with no supernatural implications. It can also mean that the person, either by dint of study, or being chosen in some way, has Supernatural help and vision to see what the Torah intended. The difference, although small, is that in one case it is totally dependent on the person their talents, and study, and in the other case, there is some sort of Divine intervention in addition to the talent and study. God, in this scenario, influences halacha by whispering in the ear of the posek.

Are we supposed to look for those with divine guidance? In the same paragraph as "lo ba'shamayim he" we find "mi ya'ale lanu ha'shamayma v'yikacheha lanu" who is going to ascend to the heavens and take it(the Torah) for us. We are not supposed to use this paradigm, because the Torah is "b'ficha oo'b'levavcha la'asoto" it is in your mouth and in your heart for you to do.

Conclusion: We have guidelines from God on how to decide halachic questions, but aside from creating parameters, God has left it up to us to discern His will. In the absence of a Sanhedrin(not the one being constituted in Tiveria), the ideal situation is for each of us to achieve the learning neccessary to be decisors. Techically, those who claim to have Divine assistance actually should not have an advantage over those without Divine assistance.

Comments-[ comments.]

Tuesday, July 12, 2005

Approaches to Chazal and implications for present day halacha

The brouhaha over R. Slifkin has revealed that most of the center-left(probably even moderate right) orthodoxy believe that the Tannaim and Amoraim in the Gemarah were not always right with regard to science. Once that opening is established the next question obviously becomes: is there anything else that they were not right about? The answer to this question obviously has profound implications for Halacha and Judaism as we know it today.

Scientific facts(as we know them) are facts because they are verified by repeated observation and validated by fitting a theory that not only explains the observations but predicts new findings that can also be verified by observations. That is the scientific method that we are familiar with. Seen in this context, we can establish a category of statements by Chazal that are in the realm of "natural science", ie biology, astronomy, agriculture, medicine, chemistry, physics, etc. We are also not surprised that statements made 2000 years ago regarding these topics reflect the scientific understanding of the day, and are frequently wrong, given what we know about these topics today.

Taking one step away from the purely "natural" sciences(those based on observation of nature or human BIOLOGICAL function), are the social sciences, those based on observations of human interactions. It is harder to prove or disprove contentions in this arena, because of the variability of human behavior. An observation that might apply to one person may not apply to a different person. A generalization about one society may not apply to a different society. Chazal made a number of statements regarding society and human behavior as well, and a number of them have become normative. Were they accurate in these assessments? or were they again somewhat reflecting the social attitudes of the times? One statement for example, that a woman would rather be married(implied that it is not an ideal marriage) than not married, has had significant impact on marriage law. Does this statement reflect Torah m'Sinai, or is it a turn of the era sociological observation? Similarly many statements, particularly regarding women and the place of women in society have obviously had significant impact on Halacha. R. Eliezer Berkovits(Jewish Women in Time and Torah) wrote that when these statements contradicted Torah directives and values, they can be put aside. (R. Shalom Carmy, in the most recent edition of Tradition, reviews one or R. Bekovits's books and rebuts this approach). However, the initial question is still valid and unaswered, are the social statements in the Gemara refective of society, or Torah m'Sinai?

If that wasn't a difficult enough problem, we now come to the legal statements of the Gemara. Are they entirely Torah m'Sinai, or do they too contain at least some element of the times? This outside influence could come in at least two ways: simply reflective of the general culture, and/or, specifically shaping statements to achieve a goal related to a certain contemporary situation. In other words, are there notes of general Greek/Roman law that crept into the Talmud? Did the Tannaim write, in some cases, not for the ages, but to shape practice in response to specific situation? Obviously, trying to unravel, if there is any unravelling to be done, one bit of law from another, or looking at the political/social situation and trying to identify an attitude or legal statement that was more to address that situation but not reflective of a tradition for the ages would be incredibly difficult and uncertain.

The final question is: what is Torah m'Sinai? What are the actions and beliefs that define Judaism? Can we go through the gemara, weed out what we think are outside influences, and go back to a 'pure' form of Judaism? is it possible? Leopold Lipman(Yom Tov) Zunz, one of the first to advocate the academic study of Judaism(who also put together clues and theorized the existance of pesikta d'rav kahanna, which was subsequently found- no lightweight) tried this approach and basically came out with Reform Judaism- discounting the Talmud in favor of prophetic Judaism.

Ordhodox Jews do not want to throw away the Talmud, and believe that at the very least the legal statements reflect the path that God wants us to be on. I have not addressed the issue of the path being right becuase it is the one we are on, or if it is intrinsically right(majority rule trumping heavenly voices and deeds). This has to be an item of belief, or at least acceptance. There is no way to "prove" the validity of the gemara. However, while accepting the legal decisions, it seems reasonable to be skeptical of the science when it contradicts what we know today, and following that rationale, to judiciously look at the social science carefully as well. The opposite views, either totally rejecting the gemara, or claiming its infallibility in all cases, to me are unacceptable. comments appreciated, as always

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