Tuesday, 28 January 2014

Parshat Zachor: Derabanan or Deoraita

So, in the second half of Rav M's lecture, I noticed that he understands the machloket whether Parshat Zachor is derabanan or deoraita differently than I did. I spoke to him briefly afterwards and indeed he takes a more subtle approach and I'm going to try and do it justice.



Both the Sefer Hachinuch and the Magen Avram(או"ח תרפה:ב) describe the debate about Parshat Zachor, whether it is Miderabanan or Mideoraita. I took this at face value to be saying that either the sages instituted it as a way to fulfill the mitzva of remembering Amalek or else it is simply the Torah method to fulfill the mitzva. There are several problems with this understanding:
  • The Mitzva, as stated in the Torah, doesn't sound like it involves reading this exact parsha
  • There was clearly some involvement of the Sages, at the very least in setting the time for reading Parshat Zachor, since yearly torah reading is a much later minhag
  • The Gemara in Megilla 18A that I quoted in the previous post learns halachot of Megilla reading from Parshat Zachor. If Parshat Zachor is mideoraita, then how can we learn from it to Megilla reading, something that was instituted later

Rav Markus gave a more subtle explanation of the debate, both sides of which involve the participation of both the sages and Torah law. 

  • Chazal instituted Parshat Zachor along with the other 4 special parshiot. One does fulfill the Torah commandment to remember Amalek but ultimately there are other paths to fulfillment and any verbal retelling of the story should suffice.
  • The Torah commanded us to remember Amalek, but left it to Chazal to decide how. Chazal instituted Parshat zachor as the means and so it is now the only method to fulfill the mitzva. This concept of תורה מסרה לחכמים is also used to explain issur melacha on chol hamoed and שאר עינוים on Yom Kippur.




Thursday, 23 January 2014

Relationship Between the Amalek-Related Mitzvot

So, the first half of Rav M's class focused on a fundamental question that I didn't consider in my learning of the sugya: what is the relationship between the mitzva to eliminate Amalek and the mitzva to remember Amalek? (similar to the question of Maakeh and Lo Tasim Damim)

  • Sefer Yereim says that these are actually two parts of a single mitzva. The obligation to remember Amalek is simply a requisite for bringing about their eventual destruction
  • The Rambam Sefer Hamitzvot(מ"ע קעט) says they are two separate mitzvot. He ultimately agrees with the Yereim though that the mitzva to remember is there to help implement the mitzva to eliminate Amalek
  • There was some discussion about whether the Rambam's Mishneh Torah(מלכים ה:ה) took a different approach to that in Sefer Hamitzvot. I wasn't really convinced by those who were arguing there was a difference--the Rambam is very succinct here and what he says sounds compatible with his approach there.
  • The Sefer Hachinuch sounds basically the same as the Rambam, although he does mention an independent reason for the mitzva to remember: so that we should know that Hashem hates those who want to harm the nation of Israel
  • The Minchat Chunuch goes further, suggesting that the two mitzvot are independent of one another

So ultimately we have two basic answers:
  1. The mitzva to eliminate Amalek is the dominant one, with the mitzva to remember being subservient to it
  2. The mitzvot are independent of one another, despite their similar context

 The Rav brought 3 nafka minot of this machloket:

  1. The Sefer Hachinich states that women are excluded from the obligation to remember because it's the men who are actually required to make war on Amalek. The Minchat Chinuch argues that the mitzvot are independent so women should be obligated to remember Amalek(he also argues that in any case women are obligated to make war on Amalek too)
  2. Once Amalek ARE destroyed are we still obligated to remember them?
  3. Rav Frank in מקראי קודש brings the question of whether one can fulfill his obligation if he reads the parsha at the end of Beshalach instead of parshat Zachor. If the mitzvot are independent, then yes. If not then only Zachor mentions the obligation to eliminate Amalek, so only it will suffice.

Let's Learn: Amalek-Related Mitzvot



So today's source sheet at the yeshiva next door said "No sources today. Learn the mitzvot regarding Amalek on your own." So let's try that.  Today's post will be a summary of what I learned on my own. Then I'll make another post once I've read some contemporary sources and I'll note some of the things I missed, mistakes I made, other approaches, etc.

So Amalek is mentioned twice in the Torah:
  • at the end of parshat Beshalach when they attack Bnei Yisrael
  • at the end of parshat Ki Tetzeh when Moshe commands Bnei Yisrael in the mitzvot
Sefer Hachinuch lists three mitzvot we learn from parshiah in Ki Tetzeh:
  1. Remember what Amalek did
  2. Don't forget what Amalek did
  3. Wipe-out all of Amalek's descendents

Parshat Zachor with a Minyan


One of the more interesting questions I came across regards the status of Parshat Zachor, which we read, directly from the Torah, once a year. It's an interesting question because it gets to the heart of the matter as to how to fulfill the mitzva of Remembering. Basically the two opinions are:
  1. The mitzva is to remember what Amalek did and express it verbally, but there is no formal way you're supposed to express it. Chazal then came and instituted Parshat Zachor in order to formalize this a bit more.
  2. Reading Parshat Zachor as we read it is actually the Torah mitzva.

This second approach would seem to be the more surprising one, since other mitzvot to "remember" don't need to be read from an actual Torah scroll. Nevertheless, the Magen Avraham(או"ח תרפה:ב)lists the rishonim who hold of this view. So where does this approach come from?

The Magen Avraham lists the gemara in Megila 18A as a possible source. It learns out our obligation to read megilla from a sefer from our obligation to read Zachor from a sefer. The question we need to ask, presumably, is whether the drashot are legit or are merely an asmachta:

קראה על פה לא יצא וכו':מנלן אמר רבא אתיא זכירה זכירה כתיב הכא והימים האלה נזכרים וכתיב התם (שמות יז, יד) כתב זאת זכרון בספר מה להלן בספר אף כאן בספר וממאי דהאי זכירה קריאה היא דלמא עיון בעלמא לא סלקא דעתך (דכתיב) (דברים כה, יז) זכור יכול בלב כשהוא אומר לא תשכח הרי שכחת הלב אמור הא מה אני מקיים זכור בפה:
Two weird things about this limmud are:
  • The hekkesh is from Beshalach, rather than from Ki Tetzeh where we actually get the mitzva of remembering Amalek
  • The gemara brings a drasha that Zachor needs to be vocalized, but it doesn't bring any proof that it needs to be read from the sefer Torah with a minyan. For example, maybe you could say it when you're alone from a copy of the parsha or even from memory. Shema, vidui maaserot/bikumim, and the obligation to remember the Exodus all have less stringent requirements, for example.

So maybe it's just an asmachta. But maybe we just need to dig a little deeper... left So let's actually look at the pasuk in Beshalach:

וַיֹּאמֶר יְהוָה אֶל-מֹשֶׁה, כְּתֹב זֹאת זִכָּרוֹן בַּסֵּפֶר, וְשִׂים, בְּאָזְנֵי יְהוֹשֻׁעַ:  כִּי-מָחֹה אֶמְחֶה אֶת-זֵכֶר עֲמָלֵק, מִתַּחַת הַשָּׁמָיִם (שמות יז:יד(

The Ramban understands the pasuk as follows: Moshe is commanded to write the Amalek story in the Torah in order that we remember it:

יאמר כתוב זאת בספר תורתי שיזכרו בני ישראל מה שעשה עמלק. 


According to this understanding, when we are actually commanded to remember Amalek in Ki Tetzeh, it's quite natural to assume that the way we are supposed to do so is by reading from the Torah, since that's the reason Moshe included the story there to begin with. So that explains the opinion that Parshat Zachor is Mideoreita a bit better.

Other Topics

Some other topics I stumbled upon were how often do we have to remember, are women required to remember, as well as the question of why Amalek deserve such harsh retribution, but those will have to wait for another time...

Monday, 13 January 2014

שפטים ושטרים תתן לך בכל שעריך

Well, I haven't been to Sanhedrin shiur recently due to career-related sinks on my time, so instead I began reading this great series of shiurim on Sanhedrin by Rav Ohad Fiksler. So, hopefully this will be the first in a series of posts as I read through those.

So let's back it up and talk about the mitzva to create a Torah judicial system throughout the land.



שֹׁפְטִים וְשֹׁטְרִים תִּתֶּן לְךָ בְּכָל שְׁעָרֶיךָ אֲשֶׁר ה' אֱלֹקֶיךָ נֹתֵן לְךָ לִשְׁבָטֶיךָ וְשָׁפְטוּ אֶת הָעָם מִשְׁפַּט צֶדֶק" (דברים ט"ז,יח).

Does it Apply in Chutz La'Aretz?


The question is whether this mitzva applies only within Eretz Yisrael or also in communities in Chutz La'Aretz. And, in fact, there are two opinions...

According to the Ramban's understanding(על דברים ט"ז,יח) of the Rambam, the mitzva to appoint judges only applies within Eretz Yisrael. The Ramban himself feels that it also applies in chutz la'aretz, but not necessarily in every single city

 אתה מושיב בכל פלך ופלך ואי אתה מושיב בכל עיר ועיר

And note that Rav Fiksler makes a compelling argument that the Rambam may have actually held of the Ramaban's opinion himself.

But, in any case, we have too opinions and according to both there is a difference between our obligation to set-up halachic legal systems in Eretz Yisrael and Chutz La'Aretz. The the question, however, WHY? Why is the difference between different the different lands and why the difference between the two opinions?

Mitzvot in Eretz Yisrael


A more basic question is whether the difference in our obligation to create a Judicial system in Eretz Yisrael vs. Chutz La'Aretz is quantitative or qualitative. Is our obligation less in Chutz La'Aretz simply due to the assumption that fewer Jews reside there or is there some more essential difference between the two lands?

I'm reminded of the oft-quoted Ramban(ויקרא יח כה) on Eretz Yisrael's special status as Hashem's Domain and the resultant special status that Mitzva observance has there. According to this, we can certainly understand the Rambam's opinion(as understood by Ramban) that the mitzva only applies in Eretz Yisrael. Because of the increased importance of mitzva observance within the Land, there is a separate mitzva to create legal institutions to help enforce said observance.

Of course, the other opinion, that the mitzva of Shoftim Veshotrim also applies in Chutz La'Aretz, doesn't contradict this principal. Rather, a mitzva can exist for multiple reasons and so the mitzva in chutz La'Aretz exists generally to promote mitzva observance and to help settle disputes in a civil manner. It nevertheless has a lesser importance and therefore the obligation allows for a more sparse distribution of Batei Din in Chutz La'Aretz

Friday, 3 January 2014

Permitted or Pushed-Off

Rav Soloveichik sets up his second shiur in שעורים לזכר אבי מרי ז"ל, titled טומאת כהנים לשבעת הקרובים, with the concepts of הותרה and דחויה.

These concepts appear when a prohibition is pushed aside for the sake of a commandment:
  • Hutra- the prohibition ceases to exist when the mitzva is possible. The act is completely allowed, and in fact it's a mitzva.
  • Dchuya- the prohibition still exists, but while the possibility of the mitzva remains it is "pushed-off"

What is the Nafka Mina between these two approaches? The main nafka mina is the status of the issur once the mitzva is over and done. So for instance, can the Cohen wear the special clothing that he serves in, which are shatnez, when he's not serving in the Temple? The Rambam, who says Dchuya, says it's prohibited, while the Raavad, who says Hutra, says it's permitted.

The Mitzva of Burial


In this case, the Rav is talking about the two cases where a Cohen is obligated to participate in burying the dead, overriding his general prohibition from becoming ritually impure.  The Rav summarizes the 3 opionions of Rashi, the Rambam, and the other rishonim:


מת מצווהקרוביםשיטה
הותרההותרהרש"י
הותרהדחויה
דחויההותרהראשונים
דחויהדחויהרמב"ם

Anyway, more to come, as the Rav then gets into some of the conceptual difficulties in the Rambam...


Saturday, 14 December 2013

On the General Relevance of Brisk

Of course, we learn gemara lishma, in order to understand Hashem's Torah. That's the primary and timeless raison d'etre of our study. Nevertheless, it can be informative to look at how our learning fits into the wider context of our lives outside the ד' אמות of halachic study.

Voltaire's Bastards


In a recent EconTalk, Russ interviewed John Ralston Saul on his 1992 book Voltaire's Bastards. Saul's thesis is basically, that the focus on empirical reasoning that began during the Enlightenment has been taken too far by subsequent generations, to the point where other important models of thought to a large degree excluded from the discourse. Here's an except:

I think if you actually go back and look at what they were saying in the context of the late 18th century...of course they were pushing reason because it was sort of a counterweight to superstition and stupidity and the ignorance of the aristocracy, and so on...So, I don't think that Voltaire or any of the others would have imagined reason being put in a Platonic way on the throne and that everything else would be demoted beneath it...Once you sort of say, look, here's the solution to our problems; this will get us out of everything, let's go down this road--well, then you basically very quickly deform the thing itself...There are lots of other counterweights out there apart from reason. You can be non-rational, you know, which is completely different from irrational. You can use ethics. You can use intuition. You can use imagination. But if you become obsessed by rationalism or reason then you start to construct everything around it and you are dragging everything through what you think is a rational methodology. Well, of course, imagination is not rational. Ethics is not rational. Intuition is not rational. So you are now deforming human intelligence, the ability for humans to act in a sensible way when faced by a crisis or an opportunity.

The idea is that Rationalism, despite it's power in answering certain types of questions, doesn't give such satisfying answers for other types of questions. Instead, modes of thought like ethics, imagination, and intuition are more useful. So, when we nevertheless try and force Rationalism on a subject, we don't necessarily end up with the best results. His example from Art History is especially telling:

Not only have the humanities been singled out as the enemy of reason, but there has been a serious attempt to co-opt them by transforming each sector into a science...Even art history has been converted from a study of beauty and craft into a mathematical view of creativity. The new art historians are interested not so much in art or in history as in technical evolution...The reduction of politics, economics, social problems and the arts to mathematical visions and obscure, hermetically sealed vocabularies may well be looked upon by those who come after us as one of the greatest follies of our civilization.

The Limits of Rationalism


Saul brings a number of examples in general society which he believes have suffered due to this intellectual bias. We could consider each individually and ask whether we agree with his appraisal, but regardless, he is dealing with the question of "the Limis of Rationalism", arguably one of the big questions humanity is struggling with in our era. Certainly there are a plethora of examples from a variety of disciplines:

  • Saul lists the failure to sufficiently address Global Warming as an example
  • Saul discusses the "scientificization" of the Humanities as potentially being "one of the greatest follies of our civilization"
  • In the same interview, Russ characterizes the rise of Fascist movements in the 20th century as being "a natural outgrowth of the worship of reason"
  • Emanual Derman makes a similar argument about the social sciences
  • David Weinberger brought up the limits of scientific empiricism in a world where there are too many facts to analyze saying "There is art as well as science in deciding which of the facts are the foundation upon which you are going to build belief"
  • Tyler Cowen suggests that science has already reaped all of the "Low-Hanging Fruit" and that scientific progress has slowed dramatically as a result
  • William Gibson sees the Post-Apocalyptic and Cyberpunk genres of science fiction as being outgrowths of disappointment with Science's failure to answer many fundamental Human questions
  • Contemporaries, the works of Arthur Conan Doyle and Arthur Machen are a good example of these outlooks. Doyle's Sherlock Holmes is living proof that rationalism can solve anything, given enough time and intellectual ability. Machen's stories, on the other hand, strive to demonstrate the limits of Rationalism in the most dramatic way possible.
  • Bob Chipman attacks the "Objective Film Criticism" he was taught in Film School as being less intellectually interesting than criticism that embraces the critic's own subjective personal world view


Two Approaches to Gemara Learning


I had the good fortune of spending time in different yeshivas and getting to see different דרכי הלימוד (methodologies of learning) at work.

At Ohr Somayach, I would describe the approach to learning a sugya(at least in the shiur I attended) as one of חשבון. We would begin with understanding what a rishon talked about and then try to infer, either deductively or inductively, what he would say on topics that weren't explicitly discussed. In this way, we would build-up each rishon's shita as a list of opinions and a few general סברות to tie them all together. Ultimately, it was a very Rationalist approach, and I remember the Rav once criticizing other approaches which stray too far from the text in their searching for explanations.

In the Gush with it's Brisker approach, the methodology required two steps. First an inductive leap, to come up with a conceptual model to explain a sugya, then a deductive discipline, searching the  gemara and rishonim for support for the model(a search which is not always successful).

It was the initial inductive leap, one which requires a greater part intuition and imagination than Rational logic, that bothered my Rabbi at Ohr Samayach. Ultimately, his approach to Gemara was closer to the pure Rationalist one that bothers Saul, while the Brisker approach uses a combination of intuition, imagination as well as Rationalism to achieve it's results. And my feeling is that the results of the Brisker Methodology are superior, as Rav Lichtenstein says in "The Conceptual Approach to Learning Torah"

For sheer beauty and excitement, tedious plodding through the Maharam Shif cannot hold a candle to Reb Hayyim’s soaring imagination and piercing insights. Radical conceptual analysis cracks open a sugya with illuminating force beyond the range of masters of combination and heshbon.

On the General Relevance of Brisk


So that takes us back to the initial question, of the general relevance of Brisk. The Brisker approach, in addition to fulfilling Torah Lishma, trains it's adepts in the fusion of Rationalism with other important modes of thought, such as intuition and imagination. It does so as no other subject in the typical High School or even University curriculum. These other modes are especially important in this Rationalist, Utilitarian day and age when they have been allowed, to a significant degree, to atrophy on a societal level.

Saturday, 7 December 2013

Understanding Self-Incriminating Testimony

So, I attended another class, delving deeper into the concept of אין אדם משים עצמו רשע:


The Rambam(like Rashi) explains the principle of אין אדם משים עצמו רשע as a more general principal than our specific case(סנהדרין ט ב) where the witness cannot invalidate himself. He expands it to capital crimes, saying that the court cannot capitally punish someone based on their own admission. The reason he gives is that we suspect he may be attempting suicide by court.

הגונב כלי שרת מן המקדש והמקלל בקוסם והבועל ארמית אין בית דין נזקקין להן אלא הקנאין פוגעין בהן וכל שהורגן זכה וכן כהן ששמש בטומאה לא היו אחיו הכהנים מביאין אותו לבית דין אלא פרחי כהונה היו מוציאין אותו חוץ לעזרה ופוצעין את מוחו בגזירין גזירת הכתוב היא שאין ממיתין בית דין ולא מלקין את האדם בהודאת פיו אלא על פי שנים עדים וזה שהרג יהושע עכן ודוד לגר עמלקי בהודאת פיהם הוראת שעה היתה או דין מלכות היה אבל הסנהדרין אין ממיתין ולא מלקין המודה בעבירה שמא נטרפה דעתו בדבר זה שמא מן העמלין מרי נפש הוא המחכים למות שתוקעין החרבות בבטנם ומשליכין עצמן מעל הגגות שמא כך זה יבא ויאמר דבר שלא עשה כדי שיהרג וכללו של דבר גזירת מלך היא.

The Radbaz on the Rambam, gives a slightly different explanation, giving the reason that out that one's life is not his own possession, rather it is God's. Nevertheless, the Radbaz's intention isn't so clear-- why shouldn't a person be allowed to confess to the court when they indeed are guilty and deserve the appropriate sentence?

ראייה או סמיכה


Rav M. suggested that the answer lies in the nature of self-testimony. When the court acts based on normal testimony, they are acting based on what is effectively solid, reliable evidence. When they act based on a confession, on the other hand, there is no evidence. Rather, they are relying on a less reliable account, since, anyway the witness' testimony is to his own detriment.

So, in monetary cases, the court acts based on his confession since, anyway it's his own money to lose. But in a capital case, the court cannot act based on his confession, since his life is not his own to give away.

Rav Asher Weiss(מנחת אשר פרשת משפטים מ, ה) expresses this view quite clearly:

ונראה לבאר האי דינא בדרך אחר, והוא דהודאת בעל דין אינו התחייבות או נאמנות אלא 'הנחה' דיש לן להניח כדברי בעל הדין המודה בחובתו ופטורין אנו מלעשוק בדיני ראיות...

So, ultimatley there is a fundamental debate between the Rambam and the Radbaz. The Rambam says that self-incrimination is not admissible because testimony must be objective and we are worried that one confessing may have some ulterior motive. The Radbaz says that confession is it's own weaker category of evidence, not based on proof, which can only be relied upon in specific types of cases.


Confession in Monetary Cases


As an added bonus, the Radbaz's explanation of why the court can accept confession in monetary cases is more satisfactory than that of the Mahari Ben Lev(שו"ת מהר"י בן לב חלק א סימן יט). He explains that when the court listens to self-incriminating testimony in monetary cases, it's isn't even considered a court ruling, rather that the witness is giving the other party a present:


אלא דיראה לי לפי זה הדרך דמה דהוא חייב הוי מטעם מתנה...