Shemini (Rashi)

For further teachings, both on these parshiyot and for Yom ha-Atzmaut, see the archives for my blog at April 2006.

“When a Woman Conceives…”

As I have attached several substantial postscripts, both to last week’s parasha and to Shemini, my comments on the current week’s very difficult double parasha will be brief. I will pose a negative question, for which I have no answer: who does Rashi omit commenting on a certain issue to which virtually all the other major commentators and several midrashim relate. I refer to the fact that in Leviticus 12, the opening section of Tazria, from which it takes its title, and which dealing with the post-partum mother’s impurity, the period of impurity is twice as long following the birth of a baby girl (14 days of strict separation, including from her husband, and 66 days of a less severe, kind of intermediary stage, called dam tohar) than it is for a baby boy (7 and 33 days, respectively)? Rashi skips over verse 5 without any comment. Why?

The only plausible answer I can think of is: a) that the answers of which he knew, offered by Hazal, seemed inadequate or incorrect, and that, b) he had no better answer. But to analyze this in full would require much more extensive research than I can give it now.

One more observation, which may suggest a direction for answering my question: this whole section of the Torah, including the chapter on the laws of kashrut read last week, seems to center around divisions and dualities within the physical world. We have “pure” and “impure” domestic and wild mammals, birds, fish, even insects; states of purity and impurity; the duality of the particular forms of impurity that beset men and women in Lev 15; and even the split or duality polarity between male and female in terms of the halakhic consequences of the event of their birth. Indeed, the final verse of Shemini, Lev 11:47, speaks of these laws as intended “to distinguish between tamei and tahor, impure and pure.” And such distinctions lie at the basis of the Havdalah blessing. While today we only make mention, at the end of Shabbat, of the differences between night and darkness, Israel and the nations, holy and mundane, Shabbat and the six days of work, an ancient version of the Havdalah, mentioned in Pesahim 104a, contains an option to mention as many as seven different pairs of things that are distinguished from one another, including “impure and pure, water and dry land, the upper waters and the lower waters, priests, Levites and Israelites”—in shor, a catalogue if all the kinds of cosmic and other distinctions mentioned in the Torah.

Yet nevertheless, nowhere in the liturgy do we have reference in as many words to what is perhaps the most fundamental division in human society: that between man and woman. We shall return to this question, with God’s help, in coming weeks.

Yom ha-Atzmaut

This coming week, on Tuesday, Israel will observe its 59th Independence Day. I cannot recall a Yom ha-Atzmaut in which the mood of the nation has been so depressed and glum. Old timers will say that in 1967, when war was on the horizon and people did not know how great and rapid the victory would be, there was a feeling of great fear and trepidation. But this time the cause is different: then there were leaders, there was solidarity among the people, and the threat was external. Today there is a feeling that the leadership is morally bankrupt, that there is no vision for the future, that our leaders do not speak the truth, that there is no sense of accountability or even of shame, and no strategy for dealing with our very real problems beyond either makeshift solutions or PR spin. All we can do is pray that God will plant in our leaders’ hearts wisdom and sagacity—including, perhaps most of all, the wisdom to know that they are not as wise as they think.

PESAH POSTSCRIPTS: Halakhah, Minhag, and Change; Positive Law and Mimesis

For some reason, this year everyone seemed to reevaluating, presenting suggestions for revamping various customs related both to Pesah and to festival observance generally. First there was a ruling by a group called “Beth HaWaadh” of Machon Shiloh, a council of three rabbis led by one Rabbi David Bar-Hayim (none of them particularly well-know figures, as far as I could tell), who issued a public ruling declaring that all those living in the Land of Israel, Ashkenazim and Sephardim alike, were permitted to eat kitniyot (legumes) which, along with rice, corn and millet, have been forbidden by dint of a strongly-held custom for nearly a thousand years. The argument of the Beth HaWaadh people was that: (a) the custom has no sound or rational basis and hence is a minhag shetut; (b) that with the ingathering of the Exiles and the creation of a new, vital Jewish center in Israel, divisive differences among different groups of Jews ought to be abolished to facilitate the full unification of the people; (c) that the historical custom of Eretz Yisrael is that of the Beit Yosef, i.e., the Sephardim, and that custom is determined by place, and not something the individual carries with him on the basis of his particular ethnic origin.

This led me to the responsum on the same subject by David Gollenkin, leading posek of the Masorati (Conservative) Movement in Israel, who covers much of the same round and presents substantially similar arguments, albeit in more erudite and less bombastic tone (although he rather belabors the point that there is virtually no source to suggest that kitniyot is hametz—as if that were the crux of the issue). Then our family’s “eccentric genius” forwarded me a “rabbinic query” as to whether or not marijuana is kitniyot, and the deprivation this might cause people (“although it may be more of a burning issue in the Bay Area than in Israel”—he should only know!).

After that a friend sent me a copy of a brief treatise by one Rabbi Noah Gradowsky, of the Institute of Traditional Judaism, regarding the issue of whether or not one is required to don tefillin on Hol ha-Moed—again, a millennium-old point of contention between Sephardim and Ashkenazim, between Hasidim and Mitnaggedim, between straight “halakhists” and Kabbalists. Throughout Israel, the practice is not to do so, and those who enter synagogues wearing tefillin are quickly told to remove them; there are places in the Diaspora where the opposite is the case, and those without tefillin are required to daven in the lady’s section. The author ends, to my mind rather simplistically, by saying that the preponderance of Talmudic sources, including an explicit Yerushalmi, state that one should wear tefillin on Hol Hamoed, and hence this trumps the Zohar which, he adds, is in any event clearly not of ancient provenance.

Finally, somewhere or other in my travels, I came across a pamphlet, entitled “Shall you Ravish the Queen Even in my Palace?,” criticizing tourists and one-year yeshiva students who publicly observe the second day of the festival while in Israel, even holding second-day synagogue services in the heart of Jerusalem.

I cannot discuss these issues, each one of which is both complex and controversial, in any detail. I will merely note that I was somewhat put off by the tone of the ”anti-kitniyot” camp, who argued as if no one in their right mind could possibly have a good reason for continuing to observe the minhag, except for simple hidebound conservatism. I will mention in this context that one reason often given is a certain fear that real grains of hametz may accidentally find their way into bags of kitniyot. I have, for example, seen bags of lentils containing what looked suspiciously like sprouted wheat berries. Should this be cooked with Pesah foods, no matter how miniscule the quantity, it would constitute a forbidden mixture of hametz, the latter being forbidden במשהו, “in any amount.” For that reason—a fact which neither Gollenkin nor the Machon Shiloh see fit to mention—it is the practice in traditional Sephardic communities, which do eat kitniyot, to sift through the rice and other kitniyot products thoroughly, as many as seven times, prior to allowing it to be served at the Passover table.

More broadly, what troubled me among the conservative (lower-case “c”) halakhists or “traditionalists” in the Conservative movement (including those who have split from the mother movement, whether over the issue of women’s ordination several decades ago or in the present brouhaha about homosexuality, which threatens to split that movement, which I shall discuss in detail another time) is their emphasis on positive law. That is to say, an approach which works almost exclusively from first axioms and sources—Bible, Mishnah, Talmud, etc.—and tends to reject out-of-hand or treat as unimportant that which cannot be traced back to these original sources. There is a certain formalist tone to their work that seems to miss the point: namely, that Judaism is an organic, living religious culture; or, to use the term coined by Mordecai Kaplan, an “evolving religious civilization.” As such, it is not surprising to find certain anomalies and peculiarities, such as the rules about kitniyot, or the 2nd day of Yom Tov (which doesn’t make a whole lot of sense even in the farthest Diaspora, in this age of both instant world-wide communications and a predetermined fixed calendar, and certainly not in the heart of Yerushalayim), or certain variation in halakhic practice over a liminal issue such as tefillin on Hol ha-Moed.

In a peculiar way, it seems to me that the most traditionalist Orthodox Jew might find himself closer to Kaplan’s formulation than he is to the right-wing “positive law” Conservative, although he would doubtless use a rather different terminology: thus, one finds a quasi-mystical status attached to minhag—“If Israel are not prophets then they are the sons of prophets”; or Rav Soloveitchik’s use of the term “a Masorah community”; or the phrase used by his son, Prof. Haym Soloveitchik, who described the Judaism of previous generations as being transmitted “mimetically”—that is, as a culture passed down by imitation, within families, from father to son, from mother to daughter, from grandparent to grandchild, through living example rather than by books. The traditional attitude was that, while the Torah was given at Sinai, the chain of tradition by which it has come down to us is no less important than the specific Sinaitic source. This is the sense of the very first mishnah in Pirkei Avot, which we began to read this past Shabbat: “Moses received Torah at Sinai, passed it down to Joshua, Joshua to the elders, the elders to the prophets, and the prophets to the Men of the Great Assembly.” The balance of the tractate, along with pithy but profound ethical sayings in the names of various sages, serves as a documentation of the chain of tradition, all the way down to the later tannaitic period.

In such a context, something like the Zohar’s statement that tefillin on Hol Hamoed contradict a certain cosmic order is also valid—and it doesn’t really matter whether these words were authored by Simeon bar Yohai in the Galilee or 1200 years later, by Moses de Leon in Castille.

As to the issue of whether custom is determined by place or the individual: in theory, the argument that each place has its own custom is correct, but the reality is that many places do not have one single, consistent, fixed custom, but consist of a series of sub-communities, if you want to call them such, living side by side. This is a matter of sociological reality, which in turn reflects the migrations that have marked so much of Jewish history; hence, one cannot make every Jew living in Eretz Yisrael into a Sephardi by a tour-de-force when it is patently not so. The differences extend to the whole shape and feel of the different religious cultures—liturgy, musical modes, pronunciation, manner of conducting prayers, even seating arrangements in synagogue—which are so different that it’s impossible to imagine “unification” happening any time soon. There are historical precedents for such situations: Renaissance Italy was a melting pot of Ashkenazim, Sephardim, and old families who preserved the ancient “Nusah Roma”—and each group pretty much maintained its customs. Or there were places in Germany both before and after the First World War where “Ostjuden”—Eastern European immigrants—lived completely separate communal lives. I have some older friends who were born on “German” soil, but whose Jewish culture was Eastern-European in every sense of the word. Perhaps as the second and third generations born in Israel come of age, and begin to marry one another, they will gradually ”vote with their feet”—but no one can sit in his study and determine in advance what direction that will take.

Another point re “positive law”: a friend of man, a supporter of the pro-homosexual-ordination camp in the Conservative movement, spoke with great enthusiasm about Gordon Tucker’s teshuvah on that subject. He cited its introduction of “aggadic thinking” (what some have called “meta-halakhah) into the halakhic decision-making process, rather than rigidly confining the discussion to formalistic arguments. In a strange way, I find that I can agree with him on the methodological aspect—although I may well understand something rather different than he does by the “positive law” that he so vociferously rejects. As I pointed out in my discussion a few weeks ago about the policy of the Chief Rabbinate regarding matters of marriage and divorce, there is room for ethical and value considerations in deciding among various possible options within the halakhah. I would mention here A. J. Heschel’s insistence that halakhah and aggadah must be integrated, influence one another, create an organic, holistic Jewish world-view (this was the idea underlying his book, Torah min ha-Shamayim be-aspaklaryah shel hadorot). However, I strongly demur from Tucker’s conclusions re the specific issue at hand, and will critique it on another occasion; I will say here merely that my objections are not only on formal grounds, but also on what might be called the aggadic level—i.e., that are several important value considerations that he ignores.