Elul and Selihot (Archives)

On Elul

I would like to continue, in a slightly different way, some of the things I began saying in Re’eh about the holiness of specific time and the potential holiness of universal or general time, in connection with Elul. There is an interesting halakhic puzzle here. Anyone at all acquainted with Jewish religious life is familiar with the intense spiritual energy associated with the month of Elul. It is known as Hodesh ha-Rahamim veha-Selihot, “the month of mercy and forgiveness.” In the yeshivah world, particularly, great efforts are devoted during this month to personal spiritual work, directed toward teshuvah: special periods of time are devoted to the study of Musar (ethical-spiritual) works; frequent talks are given related to the theme of repentance; prayer times are particularly intense. For example, yeshiva folklore relates that people used to come from far and wide to the great yeshivah in Lakewood simply to hear the Mashgiah (spiritual counselor) recite the response to Kaddish, “Yehei shmei rabbah mevorakh,” during the month of Elul.

Even among ordinary Jews, Elul has a special coloration. The shofar is blown every morning; Psalm 27, speaking of God as “my light and my salvation” and of the Jew’s “one wish,” namely, “to dwell in the house of the Lord all the days of my life,” is recited morning and evening. Sephardim begin reciting Selihot, pre-dawn penitential prayers, from the beginning of the month; Ashkenazim join them in this during the closing days of the month.

The puzzle is: where does all this come from? This special character of Elul has no basis in classic Rabbinic sources, which speak only of the “ten days between Rosh Hashana and Yom Hakippurim” as a time of added religious efforts to “tip the scales of Divine judgement” in our favor, by means of prayer, good deeds, repentance and giving tzedaka (charity). True, the Tur (Orah Hayyim 581) mentions the midrash in Pirkei de-Rabbi Eliezer stating that Moses reascended Mount Sinai on Rosh Hodesh Elul, and that the shofar was blown in the camp to signal that the sin of the Calf had been forgiven. This began a forty-day period of divine reconciliation, culminating in the revelation to Moses of the Thirteen Attributes of Mercy to Moses in the cleft of the rock, on Yom Kippur. But this is a very late source.

My answer is, quite simply, that all these aspects of Elul are prime examplars of the creative role of minhag (custom) in Jewish life. As I quoted earlier, “If they are not prophets, they are sons of prophets…”

In the spirit of Elul, and the centrality of “the fear of God,” I would like to suggest two verses for reflections and meditation. The one is “Serve the Lord with fear, and rejoice with trembling” (Ps 2:11), with its somber echoes or turn-around of Psalm 100’s “Serve the Lord with joy, come before Him with shouts of gladness.” The second is ”the Fear of the Lord is pure” (Ps 19:10). Why is the adjective tehora, “pure,” chosen, among all the phrases in this psalm, to refer specifically to fear? I find something mysterious in both these verses; any insights will be appreciated.

“Arise, Cry Out in the Night… Pour out your heart like water before the Divine Presence” (Lam 2:19)

There is a unique ambience to the Selihot prayers, recited during the pre-dawn hours during the days before Rosh Hashana and the Ten Days of Repentance (or, among the Sephardim, throughout the month of Elul). The idea of rising for prayer in the still of the night, when the entire world is sleeping, creates an unusual atmosphere, conducive to a special type of prayer. There is an introspective, emotional mood elicited at that hour; ideally, prayer at this time is thoroughly unhurried, focused, concentrated, without the sense felt on weekday mornings of rushing to finish so as to begin the day’s work. The Kabbalists referred to this time as that of hesed shebe-din—“mercy mixed within sternness.” Night, generally, is thought of as a time of fear, of lurking dangers; but as the night begins to recede, and day is felt to be just beyond the horizon, it begins to be “sweetened” with the quality of hesed of the daylight hours.

Maimonides (Hil. Teshuva 3.4) already refers to the custom among all Jewish communities to rise before dawn during the ten days between Rish Hashana nd Yom Kippur and to recite divrei tahanunim ve-kibbushin (“supplication and words of admonition”). Rav Soloveitchik speaks of Selihot as a kind of tefilat nedava, a voluntary or non-statutory prayer. Ordinarily, he notes, one is not allowed to approach God outside of established framework, for which reason there are all the elaborate rules and etiquette governing prayer. Here, in keeping with the mood of tense expectation connected with the days of teshuva, the Jewish people turn to God and beseech mercy outside of the regular framework.

The concept of Selihot was first introduced on public fast days as a kind of addition to prayer. But there they are recited immediately after the Reader’s Repetition, as an almost integral part of the Amidah itself; indeed, the name is not derived, as is often thought, from the motif of asking forgiveness from God, but rather from their having originally been interpolated within the blessing of Selah Lanu, the third petitionary blessing of weekday Amidah, just as Yotzrot are inserted in that section of the service. (I once observed Selihot for the fast day of BeH”aB recited in Selah Lanu in a congregation of Alsatian Jews in Paris, which I think of as a kind of nature preserve of medieval Ashkenazic customs).

As for the structure of the Selihot: at its heart are the shelosh esreh middot, the 13 qualities of Divine mercy, and Viduy, an abridged version of the confession of sins said on Yom Kippur. One best prepares for the great encounter with God during the Days of Awe by confession: by acknowledging ones own faults, through humility and abandoning ones puffed-up ego.

These are preceded by an impressive chain of Biblical verses, in which the key words at the end of one verse lead into the beginning of the next. The opening verses state that God listens to those who “knock on his gates in teshuva,” and continue with verses celebrating God’s majesty, His power over all of creation: “Day is yours, and also night; you created sun and luminaries… summer and winter you have made.”

Among the 13 middot and the biblical verses are the Selihot themselves: piyyutim, medieval Hebrew poems, presenting a broad picture of Jewish history, the merits of the patriarchs, reflection on the transience of human life, on God’s might and wisdom, etc. These follow a fixed pattern and style, increasing in number from three each night of the days before Rosh Hashana, to seven or eight during the Ten Days. The pinnacle is reached on the Eve of Rosh Hashana, with the lengthy collection of Selihot known as Zekhor Berit—“Remember the covenant with Abraham and the binding of Isaac…” The Selihot then conclude with verses invoking the merit of the patriarchs and various divine promises, and conclude with miscellaneous hymns and prayers.

Reflections on Teshuvah

I had originally intended to try my hand here on a discussion of Maimonides’ Laws of Teshuva—a subject to which I will perhaps return for Shabbat Shuvah. For this Shabbat, of the eve of first Selihot, I wish to share a very simple insight. Teshuva is essentially a “switch” in ones mind; a “turning,” as the name itself suggests. It is a decision of the heart and of the will. True, it needs to followed up by certain changes in behavior, requiring consistency and a dogged determination to follow through, but the act itself takes place in the depths of the soul, in the inner recesses of the personality where a person ultimately tells himself that some aspect of how he has been living is no good; that he or she is fed with himself on this point, and wishes to change. Or, to be more precise, teshuva occurs when one crosses the thin line that distinguishes wishing to change from deciding to change.

This is the sense of Rambam’s comment in Hilkhot Teshuva 2.4: “One of the ways of teshuva is for the penitent to change his name, as if to say ‘I am different; I am not the same person who did those acts.’” This is also one of the meanings of the verse in this week’s portion, ”It is not in heaven… nor is it over the sea… but this thing is very close to you, in your mouth and in your heart to do it” (30:12-14). This refers, not to physical distance, but to psychological distance, as if to refute those who say: the psychological distance required to change oneself, to turn, is unbridgeable.

This approach is very different from the modern mentality, or perhaps from that of Western culture generally. There is an element of fatalism in Western literature, from the Greek tragedy to Dostoevsky, in which catastrophe comes about through the inevitable play of character. The doctrine of original sin in Christian theology may be another expression of the same theme; contemporary psychological and biological determinism ultimately draws upon the same roots. Hence, the Jewish concept of teshuva, of the possibility of radical personal change, involves a daring hiddush, an innovation mitigating against the dominant belief in the essentially inflexible and fixed nature of character and personality. Thus, properly understood, the call to teshuva is not one of moralistic self-flagellation, but essentially a liberating message, of potential for freedom and rebirth.

A Thought for Elul

“Whoever does one good deed acquires a defending angel; whoever does one sin acquires an accusing angel.” (Avot 4.13)

I was reminded of these words of Rabbi Eliezer ben Yaakov some weeks ago, when I was walking along a Jerusalem street and came upon a poster announcing the death of a certain person. I had only met the deceased briefly, some twenty years before, but immediately memories of our encounter came flooding back to me. An author and thinker, he had approached me at that time to translate a short paper he had written. I was then a young man, just starting out in the translator’s profession. When the time came for him to collect the material, he made the following proposal: rather than paying me for the translation I had done, he would consider it as a sample of my work; if he liked it, he might give me the job of translating a much larger work he had written. I rejected the offer out of hand: it was not what we had agreed upon; I was a family man, with two small children to support, and had devoted time and effort in preparing the translation. But beyond that, there was something petty, dishonest, stingy, not to say insulting, in his approach. The incident also rankled, in light of the lofty and world-embracing ideas which he addressed in his writing.

All these thoughts crossed my mind when I saw the announcement that he had gone to His Maker. I then thought of the above passage in Pirkei Avot. We often read this passage in a quasi-mystical sense, as if referring to the “good” and “bad” angels created by our deeds, which are somehow summoned up in the heavenly courtroom each year on Rosh Hashana when all of us are judged, as well as at the end of life, when the dead person’s soul is called upon to render a final reckoning to its Creator.

But it occurred to me that there is a much simpler, more naturalistic reading of this dictum of Hazal. Try as I might to think charitable and forgiving thoughts towards this man (who no doubt thought of himself as a highly spiritual and ethical individual: after all, his entire life was devoted to the exploration of significant spiritual and ethical issues!), I cannot respect him. Should I chance upon a review of one of his books, or perhaps a eulogy in one of the papers, or see an announcement of the inevitable memorial lecture or academic mini-conference in his memory, I shall no doubt think: “If they only knew what he was like in real life! What a cheap, slimey hypocrite!”

I only met him once in his life. That one act, revealing his personality and character as it did, indelibly shaped my impression of the man. I shall no doubt carry the above-described memory of Mr. X to my own grave, because that is all I really know about him. His own behavior has will-nilly made me into an “accusing angel.”

That, I believe, is the lesson of this mishnah: that we must bear in mind the importance, which we often never anticipate, of every single act in our lives, because everything we does shapes how others judge us, and may turn them into a “prosecutor” or a “defender.” The message is not “What a creep Mr. X was,” but to extrapolate from it: If I remember X because of this one petty, nasty deed, so should I learn to be careful in life, and to know that I am constantly encountering others who may judge me, in the future, both before and after 120, on the basis of those small actions that betray my character.

Ki Tavo (Archives)

Covenantal Ceremonies and Admonitions

This week’s portion, Ki Tavo, signifies the transition from Moses’ lengthy farewell oration, which included a kind of codex of all the laws of the Torah, and the concluding section of Sefer Devarim (Deuteronomy), and of the Torah as a whole, consisting of a medley of covenantal ceremonies, the sealing of the covenant with final instructions and exhortations, and two special sections: the Song of Moses and Moses’ blessing of the twelve tribes. But I am running ahead of myself. Ki Tavo (26:1-29:8) includes: two miscellaneous mitzvot, found at the tail end of the codex in Chs. 12-26—the bringing of first-fruits (bikkurim) and a special recitation made at the end of a full three-year cycle of tithes; an exhortation declaring the special, intimate nature of the relationship between God and Israel, using the rare Hebrew term he’emir (26:16-19); the instruction, upon crossing the Jordan, to set up large stones upon which will be written all the mitzvot of the Torah (27:1-8); the ceremony of blessing and curse at Mounts Ebal and Gerizim (27:11-26); a lengthy admonition, consisting of blessings and curses in the event that the people will observe or not keep the commandments (Ch. 28); and a transitional section to the next portion (29:1-8).

We have already discussed the nature of these blessings and curses in our discussion of Behukotai. The admonition here is similar in theme and style to that in Leviticus 26, but there are nevertheless several striking differences. First, this one is far longer, more detailed, and in particular paints a far more detailed and lengthy picture of the Exile (indeed, Nahmanides states that, while the earlier rebuke foretells the 70-year Babylonian captivity, this one alludes to the seemingly endless exile that followed the Roman conquest of Eretz Yisrael: Galut Edom, the exile dominated by the Christian Church in Europe). Also, whereas Lev 26 is divided into a series of graded, increasingly severe stages marked off by the leit-motif, “and if you do not listen to me, but walk with me as if by chance,” here there seem to be no turning-back points; there is no mention here of Israel ultimately confessing and repenting of their sins. Rather, the admonition concludes in the middle of the exile, on a note of unrelieved bleakness: “you will be brought back to Egypt on ships… and will be sold for man- and maid-servants, and none will buy you” (28:69).

One of the most striking features of this chapter consists in the two ironic plays on the notion of simhah, joy: “Because you did not serve the Lord your God with joy and good-heartedness, you shall serve your enemies… while hungry, and thirsty, and naked, lacking all” (vv. 47-48). And again: “As God has rejoiced over you, to do you good and to increase you; so will He rejoice over you to lose you and to destroy you” (v. 63). As if to say: if you do not learn to be content in a state of peace and simple human joys, I will teach you to appreciate what you had through a set of incredibly harsh and cruel events. This last verse, in which God utterly abandons Israel and even rejoices over their suffering, is so harsh, and runs so contrary to all the promises of the eternity of the covenant and the eventual reconciliation between God and Israel, that the midrash on this verse, quoted by Rashi, says that the verb yasis, “will rejoice,” can only refer to the enemies rather than to God Himself.

Mountains of Blessing and Curse

I would like to dwell briefly upon the dramatic ceremony depicted in 27:11-26 (which is foreshadowed, without any comment or elaboration, in 11:29). This passage portrays an impressive, massive gathering, at which the entire people assemble upon the two mountains adjacent to the town of Shechem: Gerizim and Ebal, six tribes standing on one mountain and six on the other. The Levites and priests stand in the valley in between, reciting a series of eleven maledictions against those who violate such certain laws, and eleven corresponding benedictions for those who observe them. All eleven relate to sins that are by nature performed in secret, or involving those who are unlikely to cry out or publicly protest against the perpetrators. These include making a graven image in secret; misleading a blind man; oppressing the stranger, widow or orphan; surreptitiously moving ones neighbor’s marker so as to steal his land; taking bribery; and, among the incest transgressions, those involving members of ones intimate household circle, with whom a sexual liaison is least likely to be noticed.

Why were these specific transgressions chosen as special objects of attention in this dramatic ceremony? Evidently, the general orientation of the people was more towards shame than towards guilt: that is, people did not have strongly internalized moral consciences, but were more concerned with obedience to the norms of their society, fear of ridicule and shunning by their neighbors in the event of deviation, and fear of punishment by the authorities. The Torah was concerned that, once away from the public eye, people would feel themselves free to violate basic norms. (Note the repeated use of the motif, “I am the Lord,” in Leviticus 19, for somewhat similar kinds of things.) Hence, a curse, invoked in an elaborate, memorable ceremony, would be the most effective deterrent against people doing those things for which other sanctions were less effective.

But why Shechem? Shechem was the site of the convocation called by Joshua just before his death, described in the 24th and final chapter of the book bearing his name; this may have, in fact, been the occasion for the execution of the instructions given here. Its location, in a valley between two prominent mountains, rendered it an ideal site for this kind of mass convocation.

But the feeling gained is that there was a certain polarity between Shechem and Jerusalem, reflecting the inner split in the people that broke out after the death of Solomon. In fact, until the reign of David and the establishment of Jerusalem as the royal city and, later on, as the Temple site, there was no single “holy” city or capital of Israel. During the very early period, Shechem performed some of these functions, alongside Shiloh, which was the site of the first sanctuary and one of the centers used by Joshua. It was the most centrally located sizeable city among the twelve tribes; Jerusalem, which had in any event not been established at that time, was far to the south of the center of settlement, on the edge of the desert. There was something paradoxical, contradictory about Shechem: it was “destined for disaster” (e.g. as in the slaughter of the townspeople by Levi and Simeon, and later played a certain role in the sale of Joseph), but was also a center for activities involving rallying together of the twelve tribes. Notwithstanding, it was never the capital of the northern kingdom after Jeroboam’s secession; that distinction fell, first to Dan and Beth-el, as cultic centers, then to Tirzah, and, from the days of Ahab, to Shomron—the modern Sebastia, near Shechem (where, if one wishes to draw parallels, the Gush Emunim revolt began in 1975). Reading Judges and 1 Samuel, one senses that the leadership of Samuel and then of Saul was not fixed in terms of place, but was more peripatetic, the leader constantly moving about, taking his charismatic leadership with him.

Ki Tetsei (Archives)

“When You Go Out to war…”

A Hasidic homily connects the titles of the Torah portions read during the month of Elul with the theme of that month, of spiritual searching self-examination and renewal. Re’eh: “See…”—Take a good look at the state of your mind, soul and actions. Shoftim ve -shotrim: “You shall place judges and police at every gate…” Be vigilant about what comes in and out of every aperture of your body—eyes, ears, and especially mouth. Ki Tetzei: “When you go out to war”—You must wage war against your Evil Impulse. Ki Tavo: “When you come into the land…” If you do all these things, then you shall come into the Land of the Living. And finally, Atem Nitzavim: “You are standing this day before the Lord your God”—you stand ready to receive His kingship on Rosh Hashana.

With only some homiletic license, one could say that the opening section of this week’s portion (Deut 21:10-14) in fact speaks of the war against the Evil Urge as much as any other. As we mentioned earlier, much of this parsha (over 50% of its verses) deals with a wide variety of aspects of family and sexuality: divorce; levirate marriage; rape of a betrothed virgin; claims against the virginity of a bride; bans against various national and other groups entering (i.e., marrying) into the congregation; cross-dressing; etc. It starts with the most chaotic, uncontrollable aspects of sexuality—the law of the Yefat To’ar, the beautiful enemy woman. (That this portion is not a direct sequel to the laws of war in Chapter 20 is suggested by the placing of extraneous material in 21:1-9 between the two blocs of war material, thereby requiring the repetition of the introductory phrase “when you go out to war.”

This section portrays a situation in which a man goes to war, sees an attractive woman among the enemy captives, and desires her. He is allowed to take her home, but the Torah requires a series of acts—that she shave her hair, grow her nails long, weep for her home and parents, in the process making herself generally disheveled—and only then, if he still desires her, may he marry her. The implication is that all this will dissuade him.

The consensus of Rabbinic tradition is that all this takes place after he has already had sex with her once (whether by rape or otherwise) near the battlefield. The assumption, which seems to me to be borne out by much of human experience, is that his initial desire is likely to be well-nigh uncontrollable; only after the intensity of his lust has been dulled somewhat by this initial intercourse is he at all susceptible to being influenced by other, more rational considerations. There seems to be a frank acknowledgement that this is how soldiers may behave in such situations; the reality, albeit far from ideal fact (matzuy, not ratzuy), is that under such circumstances the Yetzer ha-Ra, the “Evil Impulse,” cannot be fully curbed. In such a situation of warfare, of extreme fear, with death hovering wherever one turns, tension finds outlet in almost barbaric, very direct physical behavior. (The halakha also allows the eating of non-kosher meat in this situation.)

All this is very problematic to our refined, modern, Western morality (or is it a hypocritical Puritanism, which does not like to look at unpleasant realities too directly?). What is left out here is the woman’s humanity, her own wishes; she is very much an object to be taken at will. There seems to be an acceptance of war as a kind of moral holiday. The Torah sees this as something that can only be dealt with retroactively: “making the best of a bad deal.”

“Every love that is dependent upon some thing…”

Continuing the theme of family and sexuality, a passage in Sefat Emet I came across some weeks ago reminded me of the mishnah in Avot 5.20: “Every love that is dependent upon some thing shall in the end be negated. And every love that is not dependent upon some external thing is everlasting.” The examples given are, respectively, the love (or lust) of Amnon for Tamar, and that of David and Jonathan. The story of Amnon and Tamar, related in 2 Samuel 13, is psychologically a very interesting chapter. Amnon desires his half-sister Tamar, but does not dare do anything to her; so, like a true romantic hero of one of the Schubert leider the Israeli radio is fond of broadcasting all the time, he languishes all day long with unrequited passion. One day a “clever” friend convinces him to take action. He feigns illness, telling his servants that she must serve him food with her own hands. While she is preparing him some pancakes, he propositions her; she protests, saying “shall you behave like a scoundrel?” (vv. 12-13). Once they are alone he grabs her and has his way with her; immediately thereafter, he finds her repulsive: “And he felt a great hatred for her, greater than the love with which he had loved her” and sends her away in shame and disgrace. The picture in vv. 17-19 is especially vivid and true to life: he orders the servant to turn her out and lock the door; she puts ashes on her head, tears her fancy striped robe [like that of Joseph], and walks back and forth holding her hands on her head and crying out. It seems clear that this “hatred” was a projection of his own self-loathing, his sense of shame at himself for having betrayed his better self (the pure-minded, decent young man we first met in verse 2 could not conceive of doing such things), and his awareness that his much-vaunted “love” was no more than lust and desire, spent in a single sex act. (This is also, I believe, the origin of the stigma attached to prostitution.)

The question that occurred to me is: why is the counter-example one of love between two men? (And, despite the homophilic dispensation of the past 20 years, the reading of these two as homosexual does not ring true. It seems clear to me that 2 Sam 1:26 “You were very pleasant to me; your live was more wondrous to me than the love of women,” is speaking of non-sexual, comradely love.)

The mishnah could have chosen to use, say, the example of Rachel & Yaakov. There too we find a portrayal of intense love, of the man doing heroic acts for love—beginning with rolling the enormous stone off the mouth of the well (Gen 29:10), to working seven years for her, “and they were like only a few days in his eyes, because of his great love for her” (v. 20). This love did not dissipate after the first tumble in bed, but endured throughout life, and beyond. Her premature death was the great tragedy of his life, one of the first biographical facts he tells his two grandchildren upon meeting them (Gen 48:7); he clearly looked back at her with longing so long as he himself lived. (The Rav once spoke of the opening word of the Kinot for Tisha b’Av , Shavat, suru meni sham’u okhray, translating Shavat as “It is finished.” He commented that there are times in life when events occur that are so traumatic, that life itself loses its savor thereafter. One goes on living, but as if there is a stone inside oneself. I felt that the sub-text he was speaking of was the loss of own wife, as the seismic split in his own life. So Jacob must have felt when Rachel died.).

But to return to our mishnah: Why not give an example of a positive example of love of man and woman, in which companionship, friendship, a shared life project, and eroticism all join in an organic whole? Is there an underlying fear here of the explosive power of sexuality, even within the pure and holy form of marriage? There is something here suggestive of the dichotomy of eros and charitas in Christian thought. Or is the sensibility of Hazal simply one for which sexual love is not necessarily the most significant relationship in life, as it is generally taken to be in our society? Indeed, in the Bible the most central relationship seems to be that between fathers and sons, to which, in later Judaism, is added that of rebbe and talmid. I once read an essay by a mid-century literary critic (perhaps Lionel Trilling) who said that the great theme of literature is that of fathers and sons: e.g., as in the bildungsroman, in which the young man rebels against his father, and eventually comes full circle to confront him, and form a new, mature relationship—hopefully, one of mutual respect and love.

Where does male camaraderie and peer friendship, fit into this scheme? A thought: David was of course Tamar and Amnon’s own father. Perhaps we are meant to contrast his friendship with Jonathan with the tragic results of Amnon’s friendship with the clever but evil scheming Yonadav ben Shim’ah. The latter touched off the series of bloody events that eventually destroyed both Amnon and Avshalom, and left David as a feeble and tragic figure, left to weep and bemoan the shambles of his family.

All this requires much further thought. It may well be that the centrality of romantic love, as a freely-willed, individual choice, and the down-playing of family links—specifically, of fathers and sons—is one of the important roots of our highly individualistic society, for good and for ill.

What is the larger message that I derive from all this? That one must learn how to see Torah, not only as a system of rules and regulations, but as providing one with a perspective enabling one to go outside of his own society: to challenge the conventions and ideas of the so called avant-garde, to look at life in a broader way. Paradoxically, that which is most “conservative” may give one the courage to be most radical, as the zeitgeist can be a very tyrannical and demanding master. My model is not a separatist one. I see Judaism as adopting and adapting many of the literary, cultural, legal and other forms from all of the cultures that it has encountered and with which it has entered into contact—from the ancient world, through the Greco-Roman world and Medieval Europe, to the “high modernity” (to coin a term) of 19th century Germany, and to the United States. Through all this, it has exercised a certain selection, on the basis of—I hesitate to use the much-abused term “essence of Judaism”—but a certain unique perspective, sensibility, spirit, and covenant consciousness.

Postscript: After preparing the above two sections independently, I discovered an interesting connection between the law of the Yefat To’ar and the story of Amnon and Tamar: namely, that Hazal see Tamar as the daughter of a yefat to’ar: David took her mother, Maacah daughter of Talmai, as a captive woman in one of his battles. This resolves the knotty problem of why the account in 2 Sam is not troubled by the incestuous aspects of this incident, Tamar even telling Amnon not to rape her, because her father would certainly let him have her as his wife were he but to ask (v. 13). The Talmud explains that, as the daughter of a yefat to’ar, she was technically not considered David’s offspring (Sanhedrin 21a; cf. Rambam, Melakhim 8.2 ff., and Radbaz and Kesef Mishneh there; this fact is in turn used in support of the legitimacy of initial intercourse before the warrior brings her home, etc., an idea not required by the simple sense of the verses). Otherwise, one is forced to the historical-critical theory that the law against incest with half-siblings was not yet in force at that time, a solution posing deep faith-theological problems.

“When a man takes a wife… and hates her… and sends her away…”

The widespread incidence of divorce, a subject which is treated briefly during the course of our portion (24:1-4), is one of the striking features of contemporary society. Having myself undergone this painful and soul-wrenching experience, I bring a personal interest to this difficult subject. During the long years when I deliberated whether or not to seek a divorce, I sought guidelines in the Torah and the Jewish tradition for my own existential dilemma.

I encountered a certain difficulty in this quest. Gittin, the Talmudic tractate devoted to divorce, is primarily concerned with technical matters: how the divorce writ is to be written, the proper procedure for its writing and delivery, the testimony of the witnesses to its writing, etc. Similarly, the financial aspects of divorce—property rights and obligations of the two parties, etc.—are treated extensively in Ketubot. Material dealing explicitly with the moral issues involved in the decision to divorce is relatively sparse, appearing only on the final page of Gittin (90a-b); in the sugyot of moredet, dat Moshe and Dat Yehudit in the fifth and seventh chapters of Ketubot (72a-b; 62a-63b); and in isolated obiter dicta of the Sages. A thorough philosophical-halakhic analysis study of this subject, which will attempt to arrive at the underpinnings of these laws and to reconstruct the world-view underlying the details of these laws, is a desideratum. I believe that, properly understood, this subject is of relevance not only to the divorced and the divorcing, but to anyone interested in Jewish marriage; divorce, as its dissolution, teaches us something significant about the nature of marriage itself.

For the moment, I shall limit myself to a few insights about the final mishnah in Gittin (10.9). The Mishnah cites three opinions on the grounds for divorce: Beit Shammai limits divorce to the case of ervat davar, “an unseemly thing”—i.e., marital unfaithfulness on the part of the wife; Beit Hillel states that a man may divorce his wife “even if she burnt his food.” Rabbi Akiva is even more liberal: “even if he found another more beautiful than her.”

To my mind, these three approaches are rooted in three conceptions of marriage. The first view sees the essential purpose of marriage as the creation of legitimate progeny: the fulfillment of the commandment, “be fruitful and multiply.” Hence, anything short of adultery, representing a fundamental breach in the marital framework (as well as opening the possibility of another man’s progeny being passed off as the husband’s) remains tolerable within marriage. Beit Hillel’s view is more pragmatic: the woman’s principle practical duty within marriage is the running of the household (duties stipulated in detail in Mishnah Ketubot and elsewhere). Should she fail to perform her duties properly, she may be sent away (somewhat like an employee fired for failure to fulfill his job description?). In both these cases, the understanding of marriage is largely programmatic, functional. Rabbi Akiva’s view, by contrast, is rooted in a much more subjective understanding of marriage: the fulfillment of the subjective needs of the partners, which by definition are almost entirely dependent upon the person’s own feelings and sense of satisfaction from marriage. Here the standard is not objective, and certainly not practical, but closer to what we would call romantic (and remember that it was Rabbi Akiva who described the Song of Songs as the “holy of holies” of all the books of Scripture).

Perhaps the bottom line, then, is that such an intensely personal decision as divorce, touching upon every aspect of an individual’s life (the bitterness generated by a profoundly unhappy marital situation can poison every other life activity) cannot be found in the Shulhan Arukh in any simple way, but must be sought in ones heart. At best, examination of halakha can alert one to those reasons that are flippant.

Two points seem to be missing here. First, the interest of the children: how does one responsibly balance the inevitable harm and suffering that divorce brings upon innocent children against the considerations in its favor? I have not found this issue addressed in any obvious way by the sugyot. Second, the reasons for divorce are all (or almost all) phrased from the standpoint of the man—not surprisingly, given that the formal initiation of Jewish divorce is in the hands of the man. (Needless to say, the knotty problem of the agunah, the “chained wife,” is a major issue in this context). What considerations justify divorce from the woman’s viewpoint? And, given the skewed nature of Jewish divorce, what indirect mechanisms exist enabling the woman to nevertheless initiate divorce and how, under modern conditions, may they be made more effective?

Another, totally different, perspective on this issue. If we believe that on some level God matches each person with their destined mate (his/her zivvug or, in Yiddish, beshert), how can divorce be possible at all? More important, why is it so common today? One of the most interesting answers I have heard is that one of the underlying Divine purposes in bringing two individuals together is tikkun hamiddot (“character correction”): that is, Divine Providence throws us together with a particular person in order to create a situation in which we are forced, in order to make the marriage work, to correct our own character flaws. In this view, divorce results when one or both partners are unwilling to make the necessary changes, to engage in self-confrontation, etc. These may involve subtle shortcomings, or gross faults. Certainly, there are cases where one can’t fault a person for leaving a marriage. The most obvious example is that of the wife beater: he clearly requires tikkun, but beyond a certain point no sane woman will stay around, literally risking her neck, on the off chance that she will help him to correct his character.

On Feminist Theology

One of the much-discussed topics today in intellectual circles, both Christian and Jewish, is what is known called “feminist theology”—the attempt to rethink basic religious issues in light of the new feminist sensibility. This is expressed, among other things, in a flood of books analyzing Biblical and other sources relating to sexuality, the family, etc., in light of this new perspective.

My friend Alifa Saadya, one of the most brilliant women I know, summarized many of the salient issues in the following personal communication. Inter alia, she said:

… men rarely thought of women as having any brains at all, and so men defined what spirituality was supposed to be, and what morality was supposed to be, with no thought at all to what women’s spiritual experience might be. In particular, the hard work of childcare and the service to husbands and fathers and brothers seemed to indicate that women didn’t have time for lofty intellectual and spiritual pursuits anyway. Most women were illiterate, and had few if any outlets into “culture.” Throughout the history of women’s religious life (i.e., nuns), whenever women would develop a rule for their communities, some man—priest or bishop or whatever—would find it necessary to intervene and modify it so that it came more into line with what men thought spiritual development should be. Women in different ages have mightily objected to this interference, too. So, it seems to me that men addressing moral issues realized that sexual sins are very disruptive to society, and worse yet, the men found themselves in a quandary, because their own male sexuality is so up front and obvious, and it interferes with what they define as “spiritual.” Thus, instead of seeing arousal as a natural process that you can either get mentally involved with and pursue to its climax, or else push aside as circumstances demand, they tended to look rather accusingly at women as temptresses—the root cause of that physiological reaction—rather than seeing it as merely a natural function of the body with elements of choice involved and themselves in charge of making the choices.

In a slightly different mode, Mark Kirschbaum, in an essay “Towards a Theology of the Feminine in Judaism” (Radical Readings, Ekev and Tisha b’Av), wrote the following:

While many of the halakhic hurdles that prevent full participation by Jewish women in Jewish life can be overcome by proper analysis of the texts, there is not yet an adequate theology of the specifically feminine in Judaism to provide meaning to the contemporary observant woman. For many years, I have been attempting to conceptualize just such a theology, without recourse to an essentialist argument, or one that derives from male defined gender roles. The problem with many of these approaches is that these definitions tend to be extensions of an exclusionary approach, as pointed out by Genevieve Lloyd in her study of the concept of reason… [and by Alcoff]: “Feminists have argued that these concepts of reason and knowledge, as well as those of man, history, and power, are reflections of gendered practices passing as universal ones.” The Sefat Emet explains… much of what is critical and difficult in Judaism is a direct result of the errors of Man at that critical, almost mythical time of the Exodus, and that had they listened to the women, we would have an entirely different history and experience. This, I believe, is alluded to by the term used for dancing, holot, [derived] from the word mahol…. circle imagery is specifically used to point to a mathematical equality among all the participants, as the radius of a circle from any point at the circumference is the same. This Torah of the Messianic time is what the women allude to in their dance, the dance of those not tinged by the sins of the golden calf and the spies. … just what does/would this feminine Torah contain? Is it some more innate and direct connection and consciousness of God’s will? Can this be connected to a reversal of the privileging of reason vs. sense (that is, reason and empirical evidence, as symbolized by the “need to know” of the spies episode, were destructive, whereas the more “feminine” sensitivity was closer to God’s will)?

Michael Kagan concludes his comments on Tisha b’Av, in his Sefer Hakavvanot, by noting that:

After evening prayers the blessing for the New Moon is customarily said. It should have been declared the previous Saturday night but is delayed. The Moon is female energy and is blessed as the healing of the Wild Male energy of the day…. Tu B’Av (the Fifteenth of Av) is the traditional day of love. It comes as a direct consequence of Tisha B’Av. It is a full moon—the female energy of compassion now fully flows. The anger of the Father has dissipated and healing of the relationship can now begin.

And Martin Lee, a friend from the Yakar learning community and a reader of these pages, commenting on a question I asked in another context, wrote:

… Precisely because the nature of man (vs. woman) is to relate to law, judgement, awe and fear more easily than we relate to love, kindness, compassion, and mercy—that we need to pray. Woman—at least in the archetypal and more usual case—relates to compassion, mercy and kindness as a more natural extension of her nature. Thus, men may have a greater need of the spiritual depths of prayer to achieve what perhaps comes easier to women.

Taking all of these comments together, we find several motifs that repeat themselves: that woman has a certain innate spirituality, that has traditionally been suppressed or forced into its own channels by traditional patriarchal culture; that it relates to compassion, is closer to direct, natural human emotion and humanity as opposed to the more structured and rule-oriented spirituality of men; that it stems from woman’s biological experience as mother and her traditional role as caregiver; etc. Kirschbaum’s formulation about “the reversal of the privileging of reason vs. sense” has much to recommend it. There is something too exclusively male in the very core of the sensibility of Judaism as we know it; something hard and harsh in the halakhic way of thinking (particular since halakhah has become hardened into an ideology called Orthodoxy, in reaction to the Enlightenment), too easily caught up in objective parameters and limits, that may as a result be too insensitive both to spiritual leanings and to human needs. Clearly, the call for an infusion of feminine, and feminist, sensibility into Jewish religious life, is an idea whose time has come.

This idea (if not the feminist critique thereof) is in fact suggested by the well-known midrash on the verse: “’Thus shall you say (tomar) to the house of Jacob, and speak (tagaid) to the children of Israel’ (Exod 19:3): Say to the women [referred to as Beit Ya’akov] through soft speech [amirah]; but to the men, speak in a manner tough as sinews [giddim]” (Rashi ad loc., quoting Mekhilta and Shabbat 87a). Men are seen as thinking in tough-minded, objective, depersonal concepts; women, in more personal, emotional, “softer” categories. This difference in sensibility was epitomized, for me, in the following experience. Many years ago I visited the home of a Lithuanian Talmudic scholar of the old school. In the course of a discussion of the teachings of Rabbi Nahman of Bretslav, which greatly interested me at the time, he asked rhetorically: “What ideas did he innovate? What new ideas did he bring into the world? One idea you mentioned already appears in Hovot ha-Levavot; the second is found in the Kuzari; the third so-called innovation is in the Maharal of Prague.” At this point his wife interrupted: “When I read Rabbi Nahman it makes me feel frum (pious).” (Interestingly, Rav Soloveitchik has applied aspects of this male-female dichotomy to the difference in spiritual temperament between Mitnaggedism and Hasidism, as in his eulogy of the Talner Rebbe.)

Traditionally, Judaism has shown a clear preference for the masculine mode of thinking and being in the world. Women followed the orders given them by their men-folk, and alongside this had a certain semi-underground spiritual tradition of their own, passed down orally and by memesis from mother to daughter: certain ways of observing things; tehinot (women’s prayers, mostly in Yiddish or other vernaculars); etc. During the early years of the nascent Jewish feminist movement much emphasis was placed on women doing things hitherto thought of as exclusively “masculine,” such as studying Talmud, wearing tallit and even tefillin, etc. But over the years, there have also been voices calling for women to discover their own unique modes of spirituality within the tradition, and perhaps to share these with the public of both sexes. Already twenty-five years ago Rochelle Furstenberg issued a call for a renewal of the “more emotional, more amorphous (and perhaps freer) spiritual life traditionally assigned to women…” rather than “the exclusive supremacy of the Halachic or ‘normative’ ideal in the Jewish religion .” The point of all this is not that women should retreat to a realm of vague, cloudy emotion and intuitive “spirituality,” abandoning reason, study and the quest for Jewish erudition and intellectual attainment. Rather, in addition to these things, women, and the “feminine spirit” (including, if you will, the anima, or female alter-ego within each man), have a valuable contribution to make in softening and humanizing the harshness of our post-modern, technological, overly rationalized, hyper- competitive culture. The Torah, as studied in the yeshivot, and in the universities, does not seem to be succeeding in doing this. In my parents’ day, the zeitgeist was one that saw science and reason as bringing the salvation of humanity; the greatest dangers lurked in the irrational ideologies of Nazism, with its emphasis on archaic national myths; their heroes were such thorough-going rationalists as Bertrand Russell, John Dewey, and Morris Raphael Cohen (of New York’s Columbia University), and of course Albert Einstein, with his vaguely deistic humanism. Today, the situation is completely reversed.

But this movement is not an unmixed blessing. An interesting recent example of the application of Jewish feminist thinking is the novel The Red Tent by Anita Diamant (New York: Picador USA/ St, Martins Press, 1997). This book is a fictional reconstruction of the life of Jacob’s extended family, first in Mesopotamia with Laban, and later in Canaan, as shown from the perspective of a woman: Jacob’s daughter Dinah; it presents itself as a kind of “new midrash.” Certainly, the book is well and sensitively written, imaginative, and holds the reader’s interest. It posits the existence of an entire world of women’s secrets, passed on in the red tent of the title, where the women spend their menstrual periods together every New Moon. Dinah is not raped, but falls passionately in love with Shalem, the prince of Shechem; after her brothers massacre him, along with his family and the entire town, she totally cuts herself off from her family, ending up in Egypt, bears Shalem’s child, works as a highly skilled midwife, remarries in midlife, and encounters Joseph again, and even briefly sees Judah at Jacob’s deathbed.

But beyond its literary charm, the book has a definite theological message, that is two-pronged. One aspect involves a critique of the hardness and harshness of Jewish monotheism, whose severity is seen as connected with its masculinity. The God of Jacob, in the eyes of the women of the red tent, is one who makes cruel and uncompromising demands—epitomized in the circumcision of infant males. Second, the women are shown as having their own polytheistic world of gentle, loving, helpful earth goddesses, whom Dinah sometimes invokes at difficult deliveries; Rachel is shown as stealing the teraphim from Laban because she really believes in their power. Needless to say, this aspect is more than disturbing.

I cannot speak about Diamant specifically, but there are many New Age movements abroad in the land that are dangerously close to a resurgence of paganism. Not a few of these are connected with the rediscovery by women of their “own” goddesses. (Ha-Aretz recently described some neo-pagan womens’ rituals not dissimilar from those described here—and their counterpart certainly exist in the USA and Europe as well.) These movements stem from a genuine need and thirst for something vital and meaningful in life, against the general emotional and spiritual aridity of our technological and alienated society, the pressures of careers that dominate more and more of life, etc. One is reluctant to condemn these life-giving movements wholesale, but there is certainly much room for caution, and not automatically affirming every quirk performed in the name of women’s spirituality.

Perhaps I should add that, in general, we live in an age of great ambiguity about sex roles and sexuality per se. This ambiguity, raised in our portion, Ki Tetsei at 22:5, in the context of cross-dressing, is very much part of our culture. Sex changes have become a semi-acceptable social phenomenon; transsexual singer Danna International enjoyed a modest fame as an Israeli culture hero; in such films as Boys Don’t Cry sexually confused characters are portrayed in moving, sympathetic terms. How to deal with all this is a very large issue. One is torn between empathy for the human pain and suffering undergone by such people, and the Torah’s round condemnation of such practices as uprooting one of the fundamental distinctions in human life. Again, I believe that all these aspects of the sexual malaise of our day—the epidemic of divorce; the ambiguity of sexual identity for many; the revolution in sexual mores since the ‘60s; feminism and the confusion in relations between the sexes—are all ultimately interrelated, having their root in a deep cultural crisis for which there are no easy solutions.

Shoftim (Archives)

“Justice Justice shall thou pursue”

This portion, in general, is concerned with the basic social institutions of a Torah-governed state: the monarchy; a system of courts, with judges and magistrates, and a high court located in the Temple precincts; the priesthood, with its prerogatives; prophets. Thus, the various realms: religious, judicial, prophetic-charismatic, and executive, while functioning independently, interact and reinforce one another in various ways. Thus far, the first half of the portion (16:18-18:22).

The latter half of the portion details miscellaneous institutions and laws relating to special situations: the cities of refuge for inadvertent manslaughter; laws of testimony and conniving witnesses; laws of warfare: the mustering, and opportunity for those with some unfinished business in civilian life to go home (there was no standing army; rather, the entire populace was marshalled in times of need), the procedure involved in attacking an enemy city; the rule against cutting down fruit trees (the phrase in 20:19, ki ha-adam etz ha-sadeh, “for is the tree a man?”, often misunderstood as drawing a poetic analogy between the man and tree, means the exact opposite); and the case of a slain corpse found in an open spot, and the concomitant ceremony of expiation.

The phrase appearing in the third verse, tzedek tzedek tirdof, “Justice justice shall you pursue, that you may live and inherit the land…” (16:20), has been considered by some as a kind of byword of Judaism. Some years ago a French Jewish thinker (I think his name was Henri Baruch) wrote a book entitled Zedeq, presenting his philosophy of Judaism as being based upon this principle. But, precisely because its truth is so self-evident and obvious, justice can easily be seen as a banal cliche.

Perhaps one might best read these three verses in reverse order: the pursuit of justice as the broad, overriding principle; “Do not slant or bias justice / do not favor persons / do not take a bribe”—the practical application of justice; “magistrates and officers you shall set up in all your gates”—i.e., the institutional measures needed to accomplish this axiom. The middle verse, “do not slant justice,” is the heart of the matter. Justice is first and foremost directed towards the other: the more alien, the more bizarre, weird, peculiar, different the other seems, the more imperative the call for justice. For that reason it is so difficult. It is easy to demand justice for oneself, for those similar to oneself, for those you can identify with. The sense of “us” and “them” can function as a bribe, as something blinding one to seeing the other, as surely as a thick wad of bills.

Israeli society is being rent apart today, by each camp demonizing the other. Two weeks ago the Friday supplement of Ha’aretz newspaper featured a lead story about the “hatred of Shas” as a unifying factor among the secular, educated, Ashkenazic, generally successful elites. On the other side, there is no need to elaborate on the demonizing, hate-filled language found among the Shas cadres, in Rav Ovadiah’s sermons, nor of the ugly, sometimes lethal violence that it can unleash. What is somewhat surprising is that the “enlightened “ secularists, who supposedly know something about sociology and history and anthropology and psychology, seem to be equally close-minded about the newly-found religious fervor and ethnic pride of Shas—or, indeed, about much of the revival of interest in religion these days. Seeing the humanity of the other—unless he happens to belong to one of the minorities which the “bon-ton” and socio-political orthodoxy of the liberals designate as worthy of respect and caring—is a little bit more difficult.

“According to the Torah which they teach you”

When I was a child we were taught in grammar school about the “elastic clause” in the American Constitution: that clause that stated that, in addition to the specific authorities Congress was given to make laws in specific areas, it was entitled to make any other “laws that shall be necessary and proper for carrying into execution the foregoing powers….” (Article I, §8.18). We were taught that this, in effect, gave Congress to right to make any laws that might be required for unforeseen, future circumstances.

Deut 17:8-13 is, so to speak, the “elastic clause” of the Torah. It stipulates that any matter that is “too difficult for you” shall be brought to the “Levite priests or the judge who shall be in those days” (read: Sanhedrin; great talmidei hakhamim of each generation; etc.) and that “according to the Torah/teaching which they tell you… you shall do; do not turn from the thing they shall tell you, neither right nor left” (v. 11). This verse is taken by the tradition (together with such a verse as Exod 24:12) as providing the basis for the concept of Oral Torah.

The notion of Oral Torah is a central one in Judaism, whose importance it is impossible to exaggerate. Judaism as we know it is in effect the Oral Torah: the Mishnah, the two Talmuds, Midrashim, the rishonim (classical Medieval authorities), and aharonim (authorities from about 1500 on), in all their voluminous works of commentary, codification, responsa, etc. are the many faces of the Oral Torah. Acceptance of the Oral Torah, however this may be understood precisely, is a sine qua non of Jewish religious and halakhic commitment. Criticism is often lodged against traditional Jewish practice by assorted outsiders to the tradition—neophytes to Judaism, Christians, Reformers of various types—that one or another halakhic institution or practice is distant from the written word of the Torah.

But the truth is that the major institutions of Jewish law stand virtually on their own. Entire tractates of the Talmud are based upon brief paragraphs in the written Torah (e.g., in next week’s portion, Gittin and Yevamot, divorce and levirite marriage, are based upon 24:1-2 and 25:5-9), a single verse (as in the case of the laws of the Sukkah); or even a few words. Thus, the entire institution of shehitah—the ritual slaughter of livestock in a particular manner—is derived from the three words “ve-zavahta… ka’asher tzivitikha, “and you shall offer / slaughter as I commanded you” in last weeks portion (Deut 12:21). The related subject of terafot, with its numerous categories of organic defects that render an animal unfit for consumption, is based upon a single verse in Exod 22:30. Still other subject areas are characterized by the Talmud as “mountains hanging by a thread” or even as “suspended in midair.”

Indeed, the late Yeshayahu Leibovitz celebrated this fact, commenting that the Written Torah is itself a function of Oral Torah; that is, that the Bible as such derives its sanctity from the Oral Torah (and indeed, several border-line books are admitted on the basis of m. Yadayim 3.5, while the order of the canon as a whole is discussed and fixed in b. Baba Batra 14b).

On another level, one of the major functions of Rabbinic literature, and especially of the midrash (whether the tannaitic midrashim, or the snipets of exegetical discussion included here, there and everywhere throughout the length and breadth of the Talmud), is to bridge the gap between Written and Oral Torah. Rabbinic midrash, using various hermeneutic tools that form part of the tradition, demonstrates that the roots of the Oral Law lie in the written text (see on this David Halivni Weiss’s book Midrash, Mishnah, Gemara).

There is much misunderstanding as to just what is meant by this. Traditional Judaism contains two main schools of thought regarding this point. One view maintains that virtually everything in the Oral tradition was given to Moses at Sinai, and that the vast oral tradition was passed down through the generations from teacher to disciple, until it was ultimately set down in writing over a century after the destruction of the Second Temple. This view, which finds its definitive expression in the Iggeret (Epistle) of Rabbenu Sherira Gaon, takes literally the dictum that “everything a veteran student/disciple (talmid vatik) shall innovate in the future, was given to Moses at Sinai.”

An alternative view is that of Maimonides, for whom those things passed down directly by tradition is but one of several components of the Oral Law; much of its creation is attributed to later generations. He maintains that a relatively small number of traditions were specifically given to Moses at Sinai (Halakha le-Moshe mi-Sinai) alongside the written Torah, together with certain interpretations of the verses of the Torah; much of the Oral Torah was essentially created by the Sages, through a combination of application of hermeneutics, and the own legislative and juridical authority vested in them. He describes the Great Court in Jerusalem as “the root of the Oral Law and the pillar of teaching, from whom law and statutes issue forth to all Israel” (Mamrim 1.1; cf. Talmud Torah 1.12; and his general introduction to the Mishnah—Hakdamah le-Seder Zera’im). This latter approach seems to coincide more with common sense and the historical evidence, besides putting far less strain on the credulity of the believer. (See Yaakov Blidstein’s excellent article on the differing approaches of the Rambam and Rav Sherira Gaon.)

Interestingly, this concept of Oral Torah as essentially a field for human creativity is one that appears in numerous passages in the Sefat Emet. He constantly speaks of the task of Hiddushei Torah, of new and creative insights into Torah resulting from human spiritual and intellectual input. He often draws an analogy between the dynamic of Written and Oral Torah, to that between Shabbat and week days.

In any event, one might designate this legal theory as “legal traditionalism”—that is, it really doesn’t matter whether a given point in Jewish law was literally given by God to Moses at Sinai or not. Rather, Sinai represents the starting point for the legal tradition, which was developed, elaborated, refined, added to, etc., etc. by the Jewish people throughout the generations—what the Rav called the Masorah community. Such approach is diametrically opposed to that of the school of Kelson et al, which places strong emphasis on the “positive source” of a given legal system, being much concerned by the precise formal status of each law.

Paradoxically, this approach, which more frankly acknowledges the central role of human initiative in creating the halakhah, actually leads to a very traditional approach to halakhah. One often hears the criticism, among many religious people, that “we don’t need to observe such-and-such a law because it’s only a minhag.” (Interestingly, this approach was first propounded in modern times by Rabbi Samson Raphael Hirsch, the father of German Neo-Orthodoxy, of separatism as an Orthodox communal ideology (austritzgemeinde), and of modern style Orthodox ideological polemics. Hirsch wished to draw a sharp line between the requirements of halakhah as defined in strictly legal terms, and the “accretion” of custom that was added over the centuries.) If, however, the Oral Law is seen as an ongoing creative process, whose authority ultimately rests within the Jewish people itself, then custom too, while of lesser formal stature than Torah or Rabbinic law, is nevertheless a valid source of law, and must be treated with all due seriousness. This is conveyed in the Talmudic dictum, “Israel, if they are not prophets, are at least the sons of prophets” (Pesahim 66a). That is to say, there is a certain healthy religious intuition implanted in the people as a whole, that assures that customs adopted by the Jewish community at large are in line with the spirit of the tradition.

The second issue related to Oral Torah is the nature of Rabbinic authority. It is in this connection that the phrase from our portion, lo tasur yamin usmol, “you shall not turn deviate to the right or to the left,” is most often invoked, being used to justify the yeshiva ideology of implicit obedience to da’at Torah (“the opinion of Torah”) and gedolei hador (“the [Torah] giants of the generation”). But this verse is in fact given two diametrically opposed interpretations, in the Sifrei and in the Palestinian Talmud. The former, indeed, reads the verse as implying “even if they tell you that right is left and left is right, you must heed them.” In short, something tantamount to a Jewish counterpart to papal infallibility (lehavdil). On the other hand, the Yerushalmi in tractate Horayot reads it “if they tell you that right is right and left is left.” But—and here one is left to draw the obvious conclusion—if they teach something that is patently, self-evidently absurd, at a certain point the individual may and indeed must exert his own God-given intelligence and common sense.

A similar tension exists between the laws of the zaken mamreh (Sanhedrin Ch. 6), stipulating that an elder who openly defies the authority of the Bet Din is subject to the death penalty (based on 17:12-13 here); and the concept articulated in Horayot, that a hakham she-higi’a lahora’ah, a sage who relies on his own understanding and knowledge, cannot blindly follow what he knows to be a wrong ruling of the Sanhedrin.

These are highly complex and sensitive issues, and in this context I can barely touch their surface. A vast literature, much of it quite polemical on one side or another, has been produced on this subject in recent years. It is this issue that lies at the center of the ideological battles within contemporary Orthodoxy. Needless to say, the problem is much exacerbated by the fact that the so-called gedolim also issue pronouncements on issues of Jewish public policy and, in Israel, are deeply involved in political parties, elevating to the level of Torah obedience mundane tactical partisan decisions.

Prophecy and Charisma

In 18:9-22, a contrast is drawn between prophecy and various kinds of magic and other pagan practices. What is the difference between the two? As we mentioned in our discussion of Balaam, a magician or wizard is essentially concerned with control over the cosmos, by manipulating unseen forces. Prophetic charisma comes from a sense of submission to God, to a higher force—he acts as a mouthpiece for the Almighty and, ideally, has long since completely transcended his own ego. Prophecy, according to the Rambam, does not suddenly set on an ordinary person, but requires years of discipline and training: the prerequisites include a high level of Torah knowledge, intellectual and ethical perfection, years of meditation and withdrawal from society, etc. Only then, should God choose, does He cause His spirit to rest on that person (see Yesodei Hatorah, Ch. 7).

Moses’ position, which is invoked here as archetypal for future prophets (vv. 15, 18) involves a double aspect. He was avi hanevi’im, “the father of the prophets,” and Moshe Rabbenu, “Moses our teacher.” He embodied within his own personality the two types of hakham and navi, sage and prophet. On the one hand, he fulfilled a charismatic, perhaps even ecstatic role, as a sort of conduit for the divine energy; as one who was somehow more than human. Mysterious, removed, remote from ordinary human concerns—as is perhaps symbolized by the light shining from his face. On the other hand, he was the first teacher of Torah: sobre, balanced, judicial, performing a quintessentially rational role—understanding, teaching, elucidating an exoteric teaching, which was in principle available to all.

This duality has to a certain measure followed the Jewish people down through the ages. What, after all, was the essence of the polemic between Hasidism and Mitnaggedism, if not the old debate between hakham and navi: between the charismatic, ecstatic leaders who stormed the heavens, as against sobre, learned, text-centered teachers. The difference is embodied in their celebration of Shabbat: the Hasidic tisch, filled with Kabbalistic ceremony pregnant with mystical meaning, and the spare Shabbat ritual of the Litvak, who may barely sing Zemirot, and will sit down with his students straight after Friday night dinner to study intricate halakhic texts like Ketzot ha-Hoshen or Shav Shematta. Or, as Rav Soloveitchik once expressed it, it may be summed up in the difference between Bameh Madlikin and Kegavna (a chapter from Mishnah, as against a passage from the Zohar, used to conclude Kabbalat Shabbat in the two different traditions).

Re'eh (Archives)

Centralization of Worship

With Chapter 12 of Deuteronomy, we turn from the lofty air of Moses’ homiletic rhetoric, drawing general lessons from history, to the practical, down to earth details of the laws of the Torah and the construction of a society. In very broad, inexact terms, the next three portions may be classified as follows: Re’eh is focused upon laws relating to religious worship and the cycles of time; Shoftim establishes the basic institutions of society; Ki Tetsei sets forth a large number of miscellaneous laws and rules of all sorts, general speaking more on the micro than on the macro—on the individual, and particularly upon the family and issues relating to sexuality. (Again, this is not a full or an exact description, but only a rough schematic overview.)

Re’eh (11:26-16:17) may in turn be divided according to the Medieval headings of olam-shana-nefesh— space, time and person. Chs. 12 and 13 deal with the centralization of worship in the Temple and the all-out war on idolatrous worship; Ch. 14 focuses on the sanctification of the individual, through a brief law pertaining to personal appearance (refraining from making incisions or tattoos in ones flesh) and, especially, through dietary restrictions (a compact recap of Leviticus 11); Ch. 15 deals with the three-year cycle of celebratory tithes and tithes given to the poor, culminating in the sabbatical release every seven years; while Ch. 16 continues the motif of time by presenting a summary of the three pilgrimage festivals. Significantly, in both 15 and 16 the laws of the various special times sacred cycle are interwoven with an emphasis on caring for the needs of the poor and unfortunate members of society. The motif invoked here is “and you shall remember that you were a slave in the land of Egypt” (15:15; 16:12)—the implication being that, as you were once in the situation of these unfortunates, you should therefore never become unable to identify with their lot.

To return to the beginning: the turn from homiletics to law is not sharp or sudden. Chapters 12 and 13 are both largely rhetorical in tone, filled with repetitions, and seem a natural continuation of the exhortations in Moses’ sermon, particularly with the emphasis on eschewing idolatrous worship. Interestingly, this chapter appears in the Torah scroll as the direct continuation of the end of Chapter 11, without so much as a small white space (parasha setuma) to separate the two. Chapter 12 introduces the centralization of worship in “the place that the Lord will choose to make His Name dwell there”—i.e., the Temple to be built in the future in the Land of Israel, in an as-yet unspecified locale (the Torah, strangely, very deliberately avoids using the name Jerusalem). It repeatedly stresses that there, and only there, is one to bring all ones sacrifices: “your burnt-offerings, your whole-offerings, your tithes, your heave-offerings, your vows and voluntary offerings, the first born of your cattle and flock” (v. 6; cf. 11, 13-14, etc.). This theme is closely intertwined with two other themes: the rejection of pagan worship, including the command to break down and smash their altars, high places and ceremonial stones (12:2-3, 29-31); and the strict rule against eating blood (23-25, 27). Chapter 13 in turn elaborates upon the dangers entailed in idolatry, outlining in detail three possible directions from which this threat to the people’s spiritual integrity may emerge: a false prophet, who invokes miraculous signs as proof of his supposed mission (13:2-6); a religious seducer from ones intimate circle —a wife, a brother, a best friend (7-12); or an entire city that goes astray after paganism (13-19). (Question: why is 17:2-7, which is directly related to this same theme, not placed adjacent to these parshiyot?) In each of these three cases, the Torah explicitly warns against being seduced by these persuaders, and the imperative to uproot it by all means necessary, including violent warfare—specifically warning not to show them compassion.

Why is the Torah so insistent upon one central place for worship, and what, if any, is its connection to idolatry? Off hand, the one, central Temple serves as a powerful symbol of the oneness of God, through the oneness of His worship. Prof. Binyamin Uffenheimer once wrote of the intense sense of the Divine Presence that must have been experienced by the pilgrims who came to the Temple for the three annual pilgrimage festivals. Many passages in the psalms reflect this: “My soul longs for the courtyards of the Lord, my heart and flesh sing to the living God…” (Ps 84:2); “I rejoiced when they said to me, ‘Let us go to the house of the Lord’... For there the tribes of Yah go up...” (122:2-4); “But one thing do I ask of the Lord, this do I seek: to dwell all the days of my life in the house of the Lord… “ (27:4); “These things I remember as I pour out my soul: how I went leading the throng in procession to the house of God, with glad shouts and thanksgiving, a multitude celebrating the festival“ (42:5)—hamon hogeg. Psychologically, the presence of masses of people, all celebrating in a sacred context, itself inspires the individual who is part of this throng, infusing him with a living sense of God’s presence.

Even when one was unable to come up to the Temple, it served as a sacred center, a kind of conduit for all the prayers in the world. In his prayer dedicating the Temple, Solomon speaks of people throughout the world “praying to the Lord via the city You have chosen and the house you have built to your name” (1 Kings 8:44-45; see also vv. 31, 32-33, 35, etc.). Certainly, during biblical times, when the pagans worshipped a multiplicity of divinities, each with its own high place and its own altar “under every leafy tree,” the exclusivity and uniqueness of the Temple as the locus for sacrificial worship embodied the idea of His oneness.

But the theological implications may be seen as cutting the other way as well. The sense of enthrallment and holiness felt as a result of participating in a procession with the throng can easily be explained away as mass psychology, light years away from real Ruah ha-Kodesh, “the Holy Spirit.” More important, the centralization of worship can be seen as suggesting a localization of God, a limitation on His universality. If “the Lord is close to all who call upon Him, to all who call upon him in truth,” then he may be worshipped in all places—for He is ultimately to be found in the depths of those who open their heart “to let him in.” Judaism knows of a certain tension between these two positions. A well-known homily told in the name of the Kotzker Rebbe describes the high priest entering the Holy of Holies on Yom Kippur—the three holinesses of place, time and person converging at one mysterious point, like a blinding laser beam of holiness, so to speak. But then, he adds, “every person, in every place, at any time” may be home for the Divine Presence.

The latter view, it seems to me, is closer to the contemporary temperament. One might say (as Prof. Yosef Ben-Shlomo once observed regarding the “return of the mythic” in Kabbalah) that the pagan world of worshipping a different god “under every leafy tree” is so remote that it no longer constitutes a danger, so that we may adopt a more decentralized model without the same danger of paganism. On the other hand, the idea of God’s Presence being present in every place requires a certain sophistication of which not everyone is capable, and perhaps the Torah adapts itself to the lowest common denominator of understanding (there are a number of examples of this). Then again, as in practice this tension expresses itself in the dichotomy between verbal prayer and sacrificial worship; and since, so long as the Temple is not standing, the entire issue of Korbanot is essentially a hypothetical halakhic construct, the entire issue remains, for us, a theoretical one.

As the month of Elul begins, one may wish to apply this same insight to the realm of time: viz. the tension between sacred time and all time. The approaching season of the Days of Awe is a sacred period, a special time when we think of God as being close to us, as “the king in the field.” Rosh Hashana itself is a “day of judgment”; but that selfsame passage in the Talmud (R. H. 16a) states that “man is judged ever day…. every hour.”

This same tension is reflected, in a somewhat different way, in the interplay between the institutions of public fast days and the Ten Days of Teshuvah. Essentially, both have similar halakhic structures—Selihot; the motif of teshuvah; even fasting (originally, in Medieval Ashkenazic practice, the ten days of Teshuvah were observed by at least some pious individuals as fast days). But whereas the motto of the Ten Days is “Seek the Lord when he is to be found” (Isa 55:6)—i.e., that this period is a special time of divine availability; that of the public fast days, usually called in response to some emergency or trouble, is “like the Lord our God, [who is present to us] whenever we call upon Him” (Deut 4:7)—i.e., that the living relationship with God is not confined to special times.

“At the end of seven years you shall make a release”

In 15:1-6, the institution of shemitah, the Sabbatical year, is presented in a completely different context than in Leviticus 25. Here, no mention is made of the cessation of working the land; instead, there is only one single law presented: the cancellation of all debts. This reflects a great and profound idea, a kind of primitive socialism, that saw all individual wealth as ultimately arbitrary, since all wealth ultimately stems from God. It also reflects a strong idea of the mutuality of the entire people, of all Israelites being responsible for one another’s welfare. Hence, if a person became impoverished and went into debt as the result of ill turns of fate, he enjoyed an opportunity to return to his former status by the cancellation of debts.

This was, to be sure, a great and wonderful ideal. But already in the Torah, it is clear that this went against certain deeply seeded tendencies within the human being. Hence, unlike almost any other law, the paragraph presenting this law is immediately followed by another (7-11), sternly warning people not to have “a base thought in your heart,” refusing to lend money to their needy neighbor because of the approaching shmitah year and the fear of losing the money. And, some centuries later, as society moved away from the model of agrarian village life and became more urbanized, it clearly became untenable. Towards the end of the Second Temple period, Hillel introduced the prozbul— essentially, a legal fiction enabling creditors to collect debts past the end of the shmitah year, by pro forma turning over their collectible debts to the court (m. Shevi’it 10.3 ff.). This procedure enabled a mercantile society to function in a normal way, without a wide-scale elimination of debts that would wreak havoc with the orderly conduct of business; it simultaneously enabled people to feel that they were not actually violating the Torah’s proscription. On the other hand, it effectively reversed the clear intent of the law, which was to implement the idea of the basic equality of all, by specifically redressing the imbalance between rich and poor. A very radical idea; indeed, perhaps too radical for this world.

I would like to explore this idea of halakhic fictions, and laws that become in effect dead letters, a bit further. Let us imagine a person in today’s society who has fallen into debt. He does not benefit from the cancellation of debts, because of the prozbul. Nor is he protected from paying interest on his bank loans, due to the heter iska, the “loophole” allowing banks to function in a normal way (although he may borrow relatively small sums from the Free Loan societies that exist within the religious communities). If he does not work the land, as most people do not, shmitah does not function as a “sabbatical year” enabling him to study Torah, an aspect suggested by the Hakhel, the mass gathering to haer the Torah read at the end of the year, described in Deut 31:10-13. Even shmitat karka’ot does not entitle him to eat the fruits of the land on equal footing with the land owner; if he is strict about shmita, it is merely one more headache, requiring him to shop for special fruits and vegetables for his household—and possibly an added economic burden as well. In brief, on almost every imaginable level, the shmitah year has ceased to function in the manner originally intended, as an egalitarian mechanism for leveling and renewal of both society and the individual; what is left is a formal, basically empty shell.

A revealing aside: this coming year [i.e., 5761, 2000-2001, when this piece was originally written - JC], which is a shmita, the Jerusalem Rabbinate has decided to adopt an unprecedentedly strict policy. Rather than respect the historical heter mekhira (the fictitious sale of the Land of Israel to non-Jews, to facilitate working the land; a legal fiction similar to the sale of Hametz for Passover) which, as far as I know, was first introduced in 1881, long before Rav A. I. Kook even came to the Land of Israel, they have decided to impose the strict rulings of the haredi rabbis on the general public. To my mind, this is an arrogant misuse of Rabbinic authority.

Or, perhaps, there is a certain poetic justice here, a kind of death knell of agrarian Zionism. After all, this has become a land of banking and hi-tech; the kibbutzim in the center of the country are selling the land, given them as a trust by the people, at high profits to suburban housing developers. The land of milk and honey has become the land of asphalt and kanyons (i.e., shopping malls; not the wild, stark vistas of the Negev where you are overwhelmed by the God’s raw creative power). But, sarcasm aside, all this relates to a much broader problem: that larger and larger segments of the halakha have become ceremonial or formal legal obstacles to be gotten around, rather than “Torat Hayyim,” a Torah of life.

Another example relates to the laws of marriage. Any decent person will acknowledge the self-evident value of the commandment against adultery. But the halakhic definition of adultery, defining as adulterous any relations in which the woman has not received a get, a Jewish religious divorce writ, turns tens of thousands of decent, ethical people into adulterers. Admittedly, this situation is the “fault” of secularism and assimilation, which have led Jews to abandon their tradition, or of Reform Judaism, which (at least historically) has seen divorce as a secular matter, not concerning the synagogue. But the situation as such creates a growing cognitive dissonance between the average person’s common-sense, and the Torah. To make matters worse, the mainstream of the Orthodox Rabbinate has eschewed various creative, if unconventional, halakhic solutions which have been suggested to deal with this urgent problem—such as the late Rabbi Prof. Eliezer Berkovitz’s suggestion to revive tenai bekiddushin, “conditions” in marriage law. There are those Orthodox thinkers and polemicists who may argue that strict adherence even to the formal, “meaningless” aspects of halakhah is a Kiddush Hashem, demonstrating Jews firm, unquestioning commitment to the halakhah. But “credo qua absurdum est” is in fact a Christian approach view (Origen). On the contrary, the Torah is compatible with life, and reinforces and helps to develop the deepest ethical insights of human beings. The present emphasis on formalism is an anomaly. It is not my aim here to attack or to suggest rejecting legal fictions, nor to question in principle the central role of halakha in Jewish religious existence. But there is a very definite danger in too much legalism. When the proportion of legal fictions and of legal formalism reaches a certain critical level; when the spiritual and intellectual energy expended by people in preserving the system and in inventing apologies for it seems to take up a significant portion of their time; then something vital has died within. My feeling is that this has happened in the traditional Orthodox community. To the average dati Israeli, the definition of “what it means to be religious“ is commitment to the halakhah, as an entirely external, heteronomous set of behaviors. Anything spiritual beyond that is “Kabbalah,” esoteric, “not for me,” etc. This trend, ironically, was first articulated by the maverick Yeshayahu Leibowitz; today, it dominates religious education. There is a profound need for a rethink. The call of the hour is for a spiritual revival from within.

An Afterword on Love and Fear

After I sent out my page on Ekev, I realized that the distinction between love and fear is precisely the essence of the difference between the two accounts of the Golden Calf incident: that in Exodus centers on the message of love and compassion; that in Deuteronomy 10 on fear. What do we mean by fear? Often, modern people, especially those who are psychoanalytically oriented, object to religion as being based upon fear: suppressing life energies and vitality; eliciting guilt about everything healthy and natural in life; etc. This accusation is particularly brought against the “old-fashioned” religions (such as Orthodox Judaism and Roman Catholicism), with their strict disciplines and their censorious attitude toward sin. Ironically, the contemporary return to spirituality seems to be based largely on the feeling that modern secular culture, on a deeper level, stifles the individual. Despite widespread prosperity, conveniences and creature comforts, many people lack a sense of their own center. Human worth in our society seems to be based largely on money, social status, appearance, “sexiness,” etc. The appeal of what is seen today under the name of spirituality is, first of all, of restoring a sense of self to the individual: in the broadest sense, this corresponds to the attribute of ahavah, of Divine love and forgiveness. (I would raise only two caveats about this new movement toward spirituality: one, that it is important to avoid solipsism, focus or emphasis on the self to the exclusion of all other goals; two, that in our market society, that inevitably cheapens and distorts the true values of whatever it touches, it too often seems that spirituality itself has become a “product.”) Only after a person has this root sense of self-value, of being loved and accepted for himself (or, in theological terms: for the soul, for the Divine image, the Tzelem Elohim within him) can one even begin to speak about yirat shamayim, the “fear of heaven”—which, to my mind, corresponds to a sense of the objective reality of God and of his Torah, of there being norms in the world. But what seems to be a prerequisite for our generation, is that this not be accepted in a heavy, oppressive way (which is in any time and place a mistake), but as the stern face of God’s love (din = “tough” love?).