Friday, January 29, 2010

A Thought on the Parsha

And they came to Marah, and they could not drink the waters of Marah because they were bitter... And the people murmured against Moshe and Aharon saying, 'What shall we drink?'" (Shemot 15:23-24). Parashat Beshalach is the parasha of the apex of the Exodus, as it relates the Splitting of the Sea, the drowning of the Egyptians, and the Song on the Sea. It is also the parasha of the murmurings: "And the entire congregation of Bnei Yisrael murmured against Moshe and Aharon in the Wilderness. And they said to them: "Who would give that we had died by the hand of God in the land of Egypt when we sat by the fleshpots and ate bread to our fill, that you have taken us to this wilderness to kill this entire congregation in starvation" (Shemot 16:2-3). "And the people fought with Moshe and they said, 'Give us water to drink'..." (Shemot 17:3). "And they called the name of the place Trial and Quarrel, because Bnei Yisrael had fought with and tested God saying, "Is God in our midst, or not?" (Shemot 17:7). How is it that the climax of the Exodus could be followed so precipitously with the grumblings and murmurings that were to accompany them for 40 years throughout the Wilderness?

Much has been said and can be said about this in regards to the outgrowing of a slave mentality and the quality of a faith that comes too easily. There is, however, another factor here as well, one that goes to the very core of the Exodus and of the purpose of freedom. What were they heading towards? What was the purpose of yitziat Mitzrayim and how had this purpose been framed to the people?

Both God and Moshe had emphasized that the people would be freed from the bondage of Egypt and be able to enter into a land "flowing with milk and honey" as a free people (cf. Shemot 3:8, 3:17). This material promise of freedom was of course thrown back in Moshe's face when it did not immediately materialize: "Even to a land flowing of milk and honey you have not brought us, nor given us an inheritance of a field and vineyard!" (Bamidbar 15:13). The promise for a physically better life was met with immediate disappointment, and when water and food were lacking, murmuring and complaining ensued. Why not go back to the fleshpots of Egypt rather than endure the hardships of the desert?

The true purpose of yitziat Mitzrayim was, of course, quite different. "When you take the People out of Egypt you shall serve God on this mountain" (Shemot 3:12). While to the people this must have sounded like a ruse to win Pharaoh's agreement to let them out, it was, in fact, the ultimate purpose of the Exodus: to stand at Har Sinai and accept and be commanded by the mitzvot, not just to become physically free, but to transform from slaves of Pharaoh to servants of God. "They are my servants, whom I have taken out of the Land of Egypt" (Vayikra 25:42). Thus, as we have seen "and I will be for them as a God" is the climax of "and I will redeem them... and take them for me as a People" (Shemot 6:7). This is distilled in the concise statement of the Hagaddah, "Originally we were slaves to Pharaoh in Egypt, and now God has drawn us close to God's service."

The question of the purpose of freedom, and the definition of liberty, was clearly articulated by Isaiah Berlin in his article "Two Concepts of Liberty," where he describes two types of liberty: negative liberty and positive liberty. Negative liberty is the freedom from constraint, whereas positive liberty is having the power and resources to act to fulfill one's own potential, and often requires a level of education, self-discipline, and certain underlying values. Negative liberty is leaving Egypt, positive liberty is standing at Har Sinai. Ain likha ben chorin ela mi she'osek baTorah, "No one is as free as the one who devotes himself to the study of Torah."

Bnei Yisrael, as an enslaved people, had to first be motivated by the physical freedom and the promise of a better life, but - once hardship was encountered and murmurings ensued, they had to be trained in the second type of freedom. They had to learn to see beyond material privation to something of greater consequence. "There God gave them rule and law and there God tested them" (Shemot 15:25). There - as the Rabbis said - God began to introduce them to law, discipline, and Torah, and gave them "some of the laws of the Torah that they should begin to practice - Shabbat, the red calf, and civil laws" (Rashi quoting Mekhilta). "And God said to them: If you surely listen to the voice of YHVH your God, and do what is right in God's eyes, and listen to God's commandments, and observe God's edicts, then all of the afflictions that I have placed upon Egypt I will not place upon you, for I am God your healer." While still needing to be motivated by the promise of physical protection, the people are being introduced and trained in the accepting of a life of discipline and meaning, a life of mitzvot and of purpose. And even the giving of the man, the most basic sustenance, was followed by, "that I may test them, if they will walk in My law, or no" (Shemot 16:4).

This idea is nicely stated by Michael Walzer in his book Exodus and Revolution (which is a must-read for these parashot):

For the wilderness wasn't only a world of austerity, it was a world of laws...The Israelites had been Pharaoh's slaves; in the wilderness they became God's
servants... and once they agree to God's rule, He and Moses, His deputy, force them to be free. This, according to Rousseau, was Moses' greatest achievement; he transformed a herd of "wretched fugitives" who lacked both virtue and courage, into a "free people." He didn't do this merely by breaking their chains but also by organizing them into a "political society" and giving them laws. He brought them what is currently called "positive freedom," that is, not so much(not at all!) a way of life free from regulation but rather a way of life to whose regulation they could, and did, agree... The Israelite slaves could become free only insofar as they accepted the discipline of freedom, to obligation to live up to a common standard and to take responsibility for their own actions... hence the Sinai covenant" (pp. 52-53).

Two hundred years ago the Jewish People experienced another Exodus - they were freed from the ghetto and welcomed into the larger, secular world. For some, this freedom was a negative liberty, and with it came a rejection of all constraints - the physical and economic constraints (not to mention the oppression) of the ghetto, and the constraints of a life of Torah and mitzvot as well. For others, this freedom was only dangerous, because it allowed for such a complete rejection of constraints, and they attempted - and still attempt - to move back into a world that existed before this freedom, a world that is fully constrained. Others, including today's Modern Orthodox Jews, willingly embraced this new freedom, willingly left the Egypt of old, while still holding fast to the positive freedom of a life of Torah and mitzvot, the true freedom that comes from the commands and demands of the Torah.

What has been missing, however, even for this last group, and for today's Modern Orthodox Jews, is a new vision of the Promised Land. For with this new Exodus, a new vision that gives purpose and meaning to this freedom, a vision that shapes for us how we can embrace this freedom to bring us to a place of higher and ultimate meaning, that explains for us our purpose in life in a way that fully incorporates our new reality - such a vision, at least outside of Israel, is sorely lacking. What, we must ask ourselves, is the purpose of this new freedom? Where are we marching towards? What is our Promised Land?

It is because of this lack that we - in the Modern Orthodox camp - often struggle for an animating religious ethos, and a real sense of purpose. We have spent too many years wandering aimlessly in the Wilderness. Our challenge, then, is not just to accept this new freedom, not just to recognize it as something that has value - to affirm that we can learn from the larger world - but to incorporate it into our religious vision, to give it purpose, to make it part of our vision and part of our life, so that we can lead ourselves into the Promised Land.

Torah from Our Beit Midrash

The act of kiddushin, the giving of the ring, is accompanied by a verbal statement - harei at mekudeshet li bi'taba'at zo ki'dat Moshe vi'Yisrael, "behold you are betrothed to me with this ring, according to the laws of Moshe and Israel." In our Lifecycles class this Thursday, we explored the nature of that verbal statement. On the face of it, it would appear to be nothing more than an expression of intent, and not an actual constituent part of the act of kiddushin. This assumption, however, is challenged by the Gemara (5b) that states that the bride cannot make this statement, and, if she does, the kiddushin is either definitely or possibly invalid. Meiri notes that while there are those that state that the same requirement would apply to a purchase of a field - that the one giving the money has to make the statement that he is purchasing the field - that this is nonsensical, and that in such a case either purchaser or seller can make the statement of intent.

Clearly, if the statement is nothing more than an expression of intent, either party can make it. Why, then, for kiddushin must it be made only by the man? It seems clear that what we are dealing with here is something more - not just an expression of intent, but a speech act. The words are themselves part of the kiddushin act and, jointly with the giving of the ring, create the status of kiddushin. Since, according to the Talmud, the entire kiddushin act has to be done by the man, the speech act, as a part of this act, must be done by him as well.

This understanding is also implied by the gemarot (Kiddushin 5b and Nedarim 6b) that discuss the question of whether there is a yad (literally, "hand") for kiddushin statements. The halakhic concept of a yad is a way to extend and fill in elliptical statements, and it is one that is sourced in the world of neder, of vows, where the statement is the act itself. It seems that we are borrowing concepts from the world of haflaah, of speech acts, and applying them to kiddushin, suggesting that here too we are dealing with a type of a speech act. This is also indicated by the Gemara (7a) that states that if a man says "Half of you is mekudeshet to me," that the kiddushin should be effective, and the kiddushin should apply to the whole woman, just as when one sanctifies half an animal, the sanctity spreads throughout the entire animal. This comparison to the world of kedusha, of sanctification, seems to be based on the characterization of the act as one of kiddushin (Rashi explicitly makes the connection between kedusha and kiddushin), and again suggests that we are dealing, as is the case with hekdesh, with a speech act. Finally, the very words themselves indicate a speech act. The groom does not say, "I want to betroth you with this ring," words that reflect his intentions, but rather "With this ring, behold you are betrothed," words that can be seen as effecting the status change itself.

However, the story is not so simple. In the Talmudic discussion immediately following the one on 5b, the Gemara (6a) states that if a man had been talking with a woman on topics relating to kiddushin, and then gave her a ring in silence, that the kiddushin is valid. This seems to indicate that all that is needed in context and an understanding of intent, and not a speech act per se. And, in fact, a number of Rishonim understand that the question of whether a woman can make the statement rather than the groom, is exactly the question of whether this is a speech act and part of the act of kiddushin, and hence must be done by the groom, or merely an expression of intent, which could be done by either party.

There are three possibilities how to deal with these apparently contradictory sources: (1) There is no speech act, there is only an expression of intent, and nevertheless, there is a special demand that in kiddushin even this expression of intent be done by the chatan. (2) The is a required speech act, and the Gemara that states that prior discussion suffices is not referring to context, but to an actual speech act itself. This position is adopted by Meiri who states that this prior discussion is meaningful only if it contained a statement made by the groom which followed all the specific requirements of the classic statement of kiddushin. For Meiri, then, this prior conversation contains the speech act of kiddushin, occurring somewhat earlier than the act of the giving of the ring. (3) A speech act is not necessary, and hence context and understood intent can suffice, but when there is a speech act, it becomes part of the act of kiddushin.

This third approach is the best fit of the sources, and reflects the complex nature of kiddushin itself. As discussed in a previous posting, kiddushin evolved from "kinyan" to "kiddushin", from an act of acquisition to an act of status change - and thus kiddushin may contain elements of both. For example, Rashi (7a) states that the comparison to sanctifying an animal is only possible because the groom used the term "mekudeshet," "you are betrothed." Had he said "ki'nu'yah," you are acquired, the comparison would not have been valid. This suggests that there are two tracks (or a complex, hybrid track) and depending on which track one takes, different rules may apply. Following this logic, if one makes no formal statement, the act can be seen as a kinyan, and context will suffice. However, once a speech act is made, and especially when the term "kiddushin" is used, the act will be seen as following the kiddushin model, and as an act of status change, and as such, the speech act will be an integral component of this act.

The competition of these two models come to the fore in cases where a statement was made, but there were problems with it. The Gemara (6a) states that in some cases a bad statement can be worse than no statement. This comes up in practice when the groom misspeaks and drops some words, like forgetting "li," "to me" or forgetting "bi'taba'at zo," "with this ring." There is much discussion in the Rishonim and Achronim around these cases, and the Shulkhan Arukh (EH 27) rules that as long as they had been speaking prior to this on the topic of kiddushin, it is valid. Arukh HaShulkhan (EH 27:1) states that the bride and groom standing under the chuppah would more than suffice for sufficient context, and could be used to "fill in" the missing words. Not all decisors agree, however, and would still invalidate, or question the validity of, such an act of kiddushin. It seems that these decisors believe that once the speech act is made, it becomes central, and cannot be corrected by use of context (although prior speech - as is the case in the Shulkhan Arukh - might be able to redefine it).

A similar debate exists regarding whether the kallah can also make a statement, such as "hareini mikabelet ta'ba'at zo u'mi'kudeshet likha ki'dat Moshe vi'Yisrael," "Behold I accept this ring and am betrothed to you according to the laws of Moshe and Israel." While the Talmud states that she cannot make this statement instead of the groom, Rosh and Tosafot Rid debate whether this is acceptable had they been already talking about kiddushin matters. Rosh says that in such a case it is acceptable, because while the groom must do the full act of kiddushin, in this case the statement of harei at was not required, and thus there is no problem with her making a statement. Tosafot Rid disagrees and states that although no statement was necessary, when she makes a statement it becomes part of the kiddushin act, which must be done only by the chatan. This debate seems to be the same debate discussed above, with Rosh understanding that there is no speech act, and Tosafot Rid stating that although one may not be necessary, when it takes place it becomes part of the act of kiddushin, and this must be done by the groom. Shulkhan Arukh rules like Rosh, and the Achronim (recorded in Otzar HaPoskim and summarized in Nissuim Ki'Hilkhatam) state that even Tosafot Rid would agree that once the groom makes the formal harei at statement there would be no problem with the bride making a statement of hareini mekudeshet. Once the groom has done both components of the kiddushin - the giving of the ring and the speech acts, it is fully acceptable for the bride to say hareini mekudeshet as well.
As we have seen, this debate over the nature of the statement harei at, can be understood to be a debate over the basic nature of the act - as one of kinyan or one of kiddushin. It is thus significant that, in our practice, we have made the speech act a formal part of the act of the act of kiddushin, insisting on a very precise formula, and reflecting our embracing of the kiddushin model over the kinyan model. Our embracing of this model is further borne out by the growing practice in Modern Orthodox circles of the bride making a hareini mekudeshet statement, and for an exploration of opportunities for greater participation of the bride in the ceremony itself, an issue I have discussed elsewhere. The tension between kinyan and kiddushin continues throughout the sources and our halakhic tradition, and our affirmation of the kiddushin model began over 2000 years ago, and continues until today.

Happenings At The Yeshiva

This last Sunday, YCT and SAR High School sponsored a Yom Iyyun on Talmud and Torah She'bi'Al Peh. It was held at the SAR High School and approximately 100 people attended. Rebbeim from the yeshiva, YCT musmachim, rabbis and teachers from SAR, and community scholars, all gave shiurim on a wide-variety of topics, ranging from the use of Smartboards and pedagogical strategies to a comparison between Talmudic and Sassanian legal analysis. I gave a class on "Ownership or Partnership: A Source-Critical and Conceptual Analysis of the First Sugya of Kiddushin," which explored this question of the nature of the institution of kiddushin in the context of two parallel, but complementary, darkhei ha'limud, methodologies of study, of Gemara. It was wonderful to see so many people turn out on a Sunday to devote the entire day to the study of Gemara through nuanced and sophisticated perspectives.

Also on Sunday, we received the sad news of the passing of the mother of our musmach Yonah Berman. Yonah's mother, Bonnie Laks Berman, had been diagnosed with cancer eight years ago, and she passed away this last Shabbat in the Berman home in Teaneck. Rabbi Weiss was present at the funeral, as was a significant number of our musmachim and current students. Yonah has shared with me his gratitude for the support this week of YCT, it's students, rebbeim, and staff who have all turned out for the shiva. May he and his family have nechama - HaMakom Yenachem Otam b'toch Sha'arei Tzion vi'Yerushalayim.

On Tuesday, Rabbi Chaim Jachter visited the yeshiva. Rabbi Jachter is the author of the multi-volume Grey Matter series on contemporary halakha, head of the Halakha department of the Torah Academy of Bergen County, and a dayan of the Beth Din of Elizabeth. Rabbi Jachter gave a class on siddur ha'get, the procedure of the granting of the get, covering all the issues that are key for a community rabbi to know, as well as addressing some of the issues around the agunah crisis. It was wonderful to have Rabbi Jachter at the yeshiva, and he was kind enough to meet with students over lunch discussing his own experiences as a community rabbi and sharing the lessons that he has learned over the years.

Finally, this coming Monday, we will be having a Leil Iyyun at the yeshiva on the Agunah crisis. Presentations will cover the halakhic issues, as well as agunah advocacy, how to navigate the beth din system, and proper communal response. Please inform your friends and community about this important event.