Friday, March 5, 2010

Torah from Our Beit Midrash and a Thought on the Parsha

This week, I had the opportunity to teach a shiur on the topic of the possibility of bringing korban Pesach nowadays. This topic connects to the special reading this Shabbat, Parshat Parah, which is read to remind us of the period of purification that preceded the bringing of the korban Pesach on the 14th of Nissan. While for most of us, this is a reminder of a thousands-year-old practice that became obsolete with the destruction of the Temple, this is not true for all. Starting with the Hatam Sofer (19th century, Hungary), there have been those who have argued that we should be bringing the korban Pesach today, even in the absence of a Temple. The possibility, or even requirement, to bring a korban Pesach nowadays, has been taken up by a number of Jews in Israel, and in particular the "Sanhedrin" of R. Adin Steinsaltz, which every year petitions the Israeli Supreme Court for the right to offer a korban Pesach on the Temple Mount. [They are refused on the basis of security concerns.] There is even an entire website devoted to this initiative.


The late Lubavitcher rebbe took an intermediate position. While never advocating to bring the korban Pesach, he was concerned that in case an actual obligation did exist nowadays, one who did not bring this sacrifice would be liable for karet for failure to bring the korban Pesach in its appointed time. Thus, he initially advocated that Jews leave Jerusalem on the 14th of Nissan (and again on the 14th of Iyyar), although he later concluded that this was not required.

Without getting into the political and practical issues involved, it is worth analyzing this from a halakhic perspective. There possibility to being halakhically able to bring the korban Pesach nowadays is not as far-fetched as it may seem. Although nowadays we are all considered to be temei met, impure due to contact with a corpse (or being under the same roof with one, such as often occurs when one is in a hospital), this is overridden for a communal sacrifice - tumah hutra bi'tzibbur, communal impurity is set aside for communal sacrifices. While the korban Pesach is not technically a communal sacrifice - it is brought be all individuals, but not by the community as a corporate entity - it nevertheless has this status, for, as the Gemara Yoma (51a) it is ba bi'knufya, comes en masse, with all individuals of the Jewish People bringing it together. Moreover, as Tosafot (Sanhedrin 12b, s.v. Shetumah) states, the principle tumah hutrah bi'tzibbur is really a misnomer, as the critical criterion is not whether something is a communal sacrifice, but whether it has a fixed time during which it must be brought. Thus, on either account, the fact that all of us - including the Kohanim - are ritually impure is not a barrier.

But what about the fact that there is no Temple? This also need not be a halakhic barrier. The Gemara in Megilah (10a) states that the original kedusha, sanctity, of Jerusalem and the Temple from the time of Joshua still remains today - kedusha rishona kidsha li'sha'ata u'li'atid lavo, the first sanctity was sanctified for its time and for all future time. Rambam rules this way (Laws of the Temple, 6:14-16), and explains, in a beautiful aside, that the kedusha of Jerusalem and the Temple is different from that of the rest of Israel. Whereas the kedusha of the rest of Israel had to be reinstilled at the time of Ezra, the kedusha of the Temple and Jerusalem, once present, never departed, for once God's Presence rests in a place, it remains there for all eternity. (As a further aside, we may note that this is only when the Divine Presence rests in a place that we have constructed - a bayit, a house, as opposed to a har, a mountain, the Temple as opposed to Mt. Sinai, see my previous post on this topic.)

The fact that the Temple Mount still has kedusha does not, in itself, mean that one can still offer sacrifices there. Perhaps that would require the actual structure of the Beit HaMikdash. Nevertheless, the same Gemara (Megilah 10a) states explicitly that as a result of this kedusha it is possible to offer sacrifices on the Temple grounds even without a Temple - shamati she'makrivim af al pi she'eyn bayit, "I have heard that one can offer sacrifices even without a Temple." And Rambam rules this way. So - while we are ritually impure, and while we don't have a Temple, it would seem that sacrifices could still be offered.

What about the Kohanim and their bigdei kehunah, their priestly garments? While we don't have the bigdei kehunah, these could be manufactured (and Mechon haMikdash has already done so!). Because of the materials needed, it would be impossible to construct the bigdei Kohen Gadol, the garments of the High Priest, but this is not a problem, since sacrifices can be offered without the High Priest. Regarding the Kohanim themselves, the general halakhic approach is that Kohanim nowadays are only bichezkat Kohanim, have a presumption of being Kohanim, but that we do not know this as a certainty, since their exact lineage is unknown (see Rema YD 331:19, Maharit 1:85, and Shevet HaLevi 3:160. Regarding the use of genetic testing to establish definite kehunah status, see Tzitz Eliezer 22:59). While ideally we would want definite Kohanim to serve in the Beit HaMikdash, without this definite knowledge, we should be able to rely on the chazaka, the presumption, as we do in other areas of halakha. Thus, with the manufacture of the proper bigdei kehunah, it would seem that our Kohanim could halakhically offer the korban Pesach.

All of these arguments were made by Hatam Sofer in a teshuva (YD 2:236), where he argues that a korban Pesach can, halakhically be brought nowadays. Although written in 19th century Hungary, this responsa was not addressing a mere theoretical question, for he had actually been asked to appeal to the political leader of Jerusalem to grant Jews this right. He stated that this would not be possible, as the political leadership would only grant Muslims the right of worship on the Temple Mount.

In the following generation, Rav Tzvi Hirsch Kalisher, student of Hatam Sofer, tried to makes this theory a reality.  Rav Kalisher wrote an entire book, Drishat Tzion, where he argues for the obligation to bring a korban Pesach and where he tries to put the bringing of the korban Pesach on the top of the communal agenda. There was a larger historical context for Rav Kalisher' s initiative. This initiative began at the time that the Reform movement was starting, and high on the agenda of the Reform movement of the time was a rejection of the significance of the Land of Israel and the concept of shivat Tziyon, the return to the Land of Israel, as well as the rejection of the whole institution of sacrifices (For a distillation of this, and of an episode of the Orthodox response to this, see Mishne Brurah, 101, note 13). It was thus important for Rav Kalisher to reassert the centrality of the Land of Israel, of the Temple, and of the sacrifices.

Rav Kalisher hoped to get other rabbis to sign on to his initiative and sent his book to Rav Yaakov Ettlinger (Altona, Germany), another staunch opponent of the Reform movement, for his approval. Rav Ettlinger did not sign on, and in response (Teshuvot Binyan Tzion 1) offers a surprising counter-text to the passage in the Talmud that states that one can bring sacrifices without a Temple. He quotes the Biblical verse, "And I will lay waste your Sanctuaries, and I will not smell the pleasing odor of the sacrifices." (Vayikra 26:31). This verse is telling us - says Rav Ettlinger - that although the Sanctuary retains its sanctity even after its destruction, and one can, technically, still bring sacrifices, God still declares that God will no longer desire such sacrifices, that they will not be considered to be li'rayach nichoach, as a pleasing odor. And, it is a halakhic principle that a sacrifice that is not considered to be li'rayach nichoach is invalid. In an astounding move in a halakhic, Torah she'b'al Peh argument he states that "although the Talmud says that one can still bring sacrifices, God states: 'I will not smell their pleasing odor'!" God trumps the Talmud!

But what about the statement that sacrifices can still be brought? This, answers Rav Ettlinger, is only when God is no longer "laying waste to the Sanctuary." At a time - such as existed in the beginning of the Second Commonwealth, or such as will be in Messianic times - when the Temple is being built, but has not yet been completed - in such circumstances, one can bring sacrifices without a Temple. But as long as the Temple is laid waste, then God is telling us that God does not want our sacrifices.

Regarding the korban Pesach itself, It should be noted that Netziv (HaAmek Davar, Devarim 16:3) counters Rav Ettlinger' s point regarding rayach nichoach as far as it applies to korban Pesach. While conceding that other sacrifices cannot be brought, Netziv argues that the korban Pesach can be brought because it is the only sacrifice which is not described in the Torah as being offered li'rayach nichoach, for pleasing odor. This points to a unique feature of the korban Pesach. It is the one sacrifice that is not brought primarily to be offered on the altar, but primarily to be eaten. This is evidenced in the fact that all other sacrifices can be brought even if the owners are tamei, because their primary purpose - to be offered on the altar - will be fulfilled. The korban Pesach, however, cannot be brought if the owners are tamei (and everyone else is tahor, ritually pure), because its primary purpose - to be eaten - cannot be fulfilled. Remember, also, that there was no altar for the first korban Pesach, but only the doorposts of the houses on which the blood was placed. The key verse for this korban is "and they shall eat the meat on that night" (Shemot 12:8). The focus is on the home ritual, on the eating of the meat, and not on the offering of the korban. As such, argues Netziv, it can be done today, as there is no need for it to be considered li'rayach nichoach.

Netziv' s arguments aside, Rav Ettlinger' s larger approach is of great importance. It speaks to the question of how we deal - theologically and practically - with the destruction of the Temple, and with historical developments that have occurred to the Jewish People. Basing himself on a verse, he argues that there are times that God is sending us messages through these historical events, and that our response should not be to try to create previous realities in today's world, but to respond appropriately to the contemporary realities. The question of how to respond to the destruction of the Temple, and with the transition to a Judaism in which prayer and Torah learning are now the central forms of worship, is actually debated in Hazal. There are those that see our contemporary forms of worship as mere substitutes for a more ideal, sacrificial order - nishalma parim si'fateinu, "let our lips be a substitute for oxen" (Hoshea 14:3), and there are those who state that prayer and Torah are greater than sacrifice. Hashem sifatei tiftach u'fi yagid ti'hilatecha. Ki lo tachpotz zeveach v'eteina. Olah lo tirzeh, "God, open up my lips, and let my mouth speak of Your praise. For You do not desire a sacrifice, that I should give it. A burnt offering you do not want." (Tehilim 51:16-17).

In closing, I would like to turn to two final halakhic issues that need to be addressed for those arguing for a korban Pesach nowadays: the mizbayach, the altar, and the need for communal participation. While not raised by Hatam Sofer, the location of the altar could present a problem. Rambam (Laws of the Temple, 2:1-4) states that the place of the altar and its dimensions are exact and precise. The implication of Rambam is that sacrifices would not be valid without a altar in its historically precise location. However, Rambam's position in regards to the need for precision is not universally agreed upon, and there are those that would argue that even according to Rambam, this lack of precision of the location would not invalidate a sacrifice. The issue is not settled, however, because there are opinions that for the altar to be valid, it must be constructed by the Jewish People, and cannot be a private affair (see Responsa Raavan, 50). This would certainly preclude such a sacrifice nowadays.

The issue of community highlights the reason why those who are interested in sacrifices nowadays raise this issue only in the context of the korban Pesach. For, if it is really feasible to bring sacrifices today, why - one may ask - should we not bring all the communal sacrifices, since the concerns of tumah are overridden for all communal sacrifices? The answer, as Rav Yaakov Emden already notes (Teshuvot Yaavetz 1:89), is that such sacrifices require the communal contributions of the shekalim, so that are truly be sacrifices from the entire community, and this does not exist nowadays.

Now, the forerunner to this annual donation of the half shekel for communal sacrifices is this week's parsha - which opens with the donation of the half-shekel for the sockets which were to form the foundation of the Mishkan. There is an important message here. For the Mishkan to be built, everyone first gave according to their ability and degree of commitment - asher yidevenu libo, "each person as his heart motivates him" (Shemot 25:2). However, for it to be built at all, for the foundation to be laid, everyone had to give, and everyone had to give equally. There need to be a universal and equal commitment and sharing of responsibility at the core. Thus, all gave the same amount - ha'ashir lo yarbeh vi'hadal lo yamit, the rich shall not give more, and the poor shall not give less (Shemot 30:15), and each gave a half-shekel, an amount that was incomplete in itself, that needed the other - another's contribution - to make it whole. This was the foundation of the Mishkan. And this process - this form of universal and equal giving - was what was instituted for all future time as the basis for the ongoing services in the Temple, for the daily and regular communal sacrifices.

Thus, the possible need for the communal construction of the altar is not a technical issue. It points to the question of whether such a phenomenon can and should occur without communal commitment and participation. The interesting feature of korban Pesach is that while it is brought bi'knufya, in the community, and even is brought by a household unit - it is a as a seh li'bait avot, a sheep for each household, it remains, in a certain sense, an individual sacrifice. But only in a certain sense. It is a sacrifice that each individual brings to show his or her participation in the community and in the foundational narrative and experience of yitziyat mitzrayim. It is thus possible for some to argue that we should ignore the larger communal context, focus on it just as an individual sacrifice, and that individuals so motivated should bring a korban Pesach.

The question, then - beyond the halakhic one - is whether this is how we want to approach Pesach and its obligations. Do we want to bring a korban Pesach as individuals, when it is not a practice supported by the larger community? Pesach is the one Yom Tov which is all about being part of the community. Those who in the Wilderness could not bring the korban Pesach insisted that they could not be excluded from bringing this sacrifice bi'tokh Benei Yisrael, excluded from the People of Israel. And Pesach, together with milah, is the only positive command for which one who violates it receives karet, Divine excision, because one thereby cuts himself out of the community and its foundational narrative. And it is the rasha, the evil child at the Pesach seder, who is the one who rejects the story's relevance to him, is hotzi atzmo min haklal - has excluded himself from the community.

Pesach is about the individual demonstrating his or her membership in the People of Israel. It is about all individuals doing this together as a community. The halakhic arguments need to be made on their own terms, as they have been above. However, on a hashkafic, theological level, at a time when there is no Temple, when there is no communal laying of the foundation of the Temple, when there is no annual communal donation of the half-shekel and no communal support of a sacrificial order, at such a time to suggest that we bring the korban Pesach as an individual sacrifice, as individuals divorced from a larger community, is profoundly against the message of this week's parasha and profoundly against the message of the korban Pesach itself. Today, we do not need more factions. At this time, we should all dedicate ourselves not to individual initiatives that break us away from the community, but to affirming our communal identity. We need to dedicate ourselves to finding ways to give the half-shekel again, to achieve universal and equal commitment in the laying of our communal foundations and in the ongoing participation in a life of shared religious and communal values.

Shabbat Shalom!

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