Friday, February 12, 2010

A Thought on the Parsha

Mishpatim, this week's parasha has many, many laws. So many, that one may be misled to believing that the entirety of one's obligation as a Jew is halakha and mitzvah. However, as was discussed last week and as is explicit at the end of this parasha, all of these mitzvot occur in the context of a brit, a covenant. A brit demands more than just adherence to the laws, it demands a partnership, a sharing of the vision and an incorporation of that vision into one's day-to-day life. One way this manifests itself is in the obligation to live up not just to the letter of the law, but to its spirit.

Hazal saw this already in Yitro' s advice to Moshe. Moshe had described his role as teaching the People, "the laws of God and God's teaching" (Shemot 18:16). Yitro, in giving his advice and in perhaps picking up on this second element, "God's teaching," toratav, says to Moshe: "You shall admonish them regarding the laws and the teachings, and you shall inform them the path that they shall walk, and the action that they shall do." Hazal explain: "'the path they shall walk' - this is the law; 'the action they shall do' - this is beyond the letter of the law." (Baba Kama 99a). To go beyond the letter of the law, to live according to the spirit of the law even when not legally demanded to do so, is to live the life not just of commandedness, but a life of a brit.

To live according to the spirit of the law requires inquiry into the underlying values of the mitzvot. This is often a highly speculative endeavor, as any study of the literature of ta'emei ha'mitzvot, the reasons of the mitzvot, will bear out. The range of different explanations as to the underlying value for certain mitzvot can sometimes be breathtaking. Nevertheless, it is a process that we are required to undertake if we want to truly be parties to the brit, to truly live our lives according to Torah values and not just Torah law.

Hazal themselves attempted to do this, while recognizing that the answers would not always be clear. Regarding the mitzvah in this week's parasha to unburden a donkey which is struggling under its burden (Shemot 23:5), the Talmud asks whether the underlying principle here is one of concern of the suffering of animals, or whether it is to help the owner whose property might become damaged. In other words, is tza'ar ba'alei chayim, preventing animal suffering, a Biblical principle or not? (Baba Metzia 32b).

The relevance of this question is asked first in regards to interpreting the exact parameters of this mitzvah itself (an approach that seems to contradict, or at least qualify, the principle that we do not use Biblical reasons in interpreting the mitzvot - lo darshinan ta'amah dikra). However, once the Gemara establishes that this is a Biblical value, it becomes an independent obligation that plays out in many different contexts in the Talmud (see, for example, Shabbat 128b, and Shulkhan Arukh OH 305:18-20). This endeavor, to work to identify the values and then to see the values as operative in our lives, is a core part of understanding the mitzvot as part of a brit, and not just as halakha narrowly defined.

One way to sensitize ourselves to the Torah's values is by paying attention to the written Torah - to its narratives and to its pshat, its simple meaning. As Ramban in the very beginning of his commentary to the Torah states (Breishit 1:1), the Torah is not just a book of laws, but begins with Breishit, a book of narrative, so that we can learn the meaning of our place in this world, and the values with which we must live our lives. Similarly, when it comes to the mitzvot of the Torah, the pshat of these mitzvot, even when in contrast to the narrow halakhic interpretation, is often an insight into the underlying values. Thus, the mitzvah not to oppress the stranger (Shemot 22:20) is understood by the Rabbis to refer only to the convert, while on its pshat level refers to a non-Jew who resides within our territory. As a result of this pshat, Sefer HaChinukh interprets this mitzvah as referring to anyone who is marginalized and vulnerable, and we can certainly state that this is the underlying value that must be operative, regardless of how one defines the narrow halakhic obligation. Similarly, the verse that states "an eye for an eye" (Shemot 21:24) teaches us - according to Ibn Ezra and Rambam - that while we only demand monetary payment for such injuries, on a moral level a person who willfully took out someone else's eye deserves a similar fate, and thus has not discharged his moral responsibility merely by paying for damages.

It is through this closer reading of Torah shebikhtav, of the written Torah, and by actualizing it in our lives that we can be more full partners in the brit. It is thus not surprising that according to a number of commentators the understanding that the obligation to care for the suffering of animals that was the underpinning of the mitzvah of unburdening the donkey, was learned from a verse "And God's compassion is on all of God's creatures, a verse from Tehillim (145:9). It is through the study of all of the words of the Torah, the written and the oral, the Five Books, and all of Nakh, the halakhic sections of the Talmud and the aggadic, through learning the Torah's laws and its values and actualizing them in our lives, that we will begin to live our lives as full partners in the brit with God.

Torah from Our Beit Midrash

This week in Lifecycles, we moved from kiddushin to nissuin. As is well known, there are two stages of marriage, kiddushin and nissuin. Kiddushin is referred to in the Torah as erusin, and nissuin is referred to as either kicha, taking ("Who is the man who has betrothed a woman and not taken her" - Deut 20:7) or beulat ba'al, a woman who has had sex with her husband (see Deut 22:22-23). The first stage is the formal, legal status of the marriage, with all its halakhic implications to the outside world (she is considered a married woman and the laws of adultery apply), whereas the latter is the actualized reality of the marriage, when the couple begins their lived life together as husband and wife.

Rambam, in the beginning of his Laws of Marriage, emphasizes the distinctiveness of this institution, pointing out that prior to the Giving of the Torah, marriage was defined only through the act of sex, without the prior stage of eirusin, whereas with the Giving of the Torah it is now defined by these two stages. What is the significance of having it take effect only through two distinct stages? It is possible that this institution was needed most a time when parents would contract a marriage when the daughter was still young, and the couple was not yet ready to begin to start their married life. Thus, eirusin was needed to create a binding marriage before the lived reality of marriage.

However, it seems that there is more to it than this, that the two stages are part of what creates the kedusha of the marriage. This is both indicated in Rambam's language - that it is part of the distinctiveness of the Torah's institution of marriage, and it is stated in the birkat eirusin - "that You have sanctified your People Israel through chuppah and kiddushin." The significance of the prior stage of eirusin is that it defines the committed relationship - and the commitment to the relationship - in terms that are not just about the physical or the lived relationship together. Marriage, to last, requires a commitment to each other that must be prior to and at times must transcend the current emotional and physical relationship. To be clear, Judaism is against remaining in a dead marriage, (witness the last mishna in Gittin (9:10)). However, marriages will inevitably encounter difficulties, at times when the couple is pulling apart and the relationship is not so strong. Often, what will determine if a marriage can survive such periods is the degree of commitment that the couple has to each other and to the marriage. Is this a marriage with a prior eirusin, or a marriage that only is defined by the reality of the current relationship?

The laying of the foundation of commitment not only is necessary for the health of the marriage, it defines and sanctifies their sexual life together. Because eirusin precedes nissuin, the lived sexual life together now takes place in the context of commitment to one another, and is not merely the selfish fulfillment of one's own physical desires, and - God forbid - the using of another person to satisfy these desires. Eirusin thus sanctifies the lived marriage of nissuin,"Who sanctifies His People Israel through chuppah that was preceded by kiddusin."

Now, what is the nature of nissuin, of this lived relationship together? We have already mentioned the one most clearly mentioned in the Torah, the physical, sexual relationship. That this commences at nissuin, is evidenced by the prohibition in the Talmud for the betrothed couple to have sex prior to nissuin, a prohibition mentioned in the birkat eirusin: "That You have forbidden to us the arusot." This prohibition is almost universally assumed to be rabbinic, since it was at times not kept in the region of Judea (see Ketuvot 12a and 7b), although some understand that it might even be Biblical (see Shita Mekubetzet, Ketuvot 7b). Even if the prohibition is only rabbinic, this is not because the Torah allows for a sexual relationship during this time, but rather because the Torah assumes that such a relationship would effectuate nissuin (see again Deut 22:22-23, and see Ketuvot 48b). Hazal, however, understood that a sexual relationship without effecting nissuin was possible, but for this very reason it was prohibited, since when occurring outside the context of nissuin it became a biat znut, an act of fornication, not sanctified by the context of the marriage.

The second aspect of their lived life together that begins at nissuin is their shared economic life, the building of a shared household together, with financial responsibilities and commitments. Significantly, Hazal understand that when the Torah refers to a woman being in her husband's "house," it is referring to the state of nissuin (so, for example, regarding vows - Bamidbar 30:11, and regarding eating Trumah, which according to the Yerushalmi begins Biblically only at nissuin based on beito, "his house,"- see Vayikra 22:21, as opposed to the Bavli which assumes that it starts at kiddushin based on kinyan caspo, "his purchase," from the same verse). It is the shared household together, the economic realities of marriage, which is the second aspect of the nissuin.
These two aspects come together in the Torah's obligation of she'er k'sut and onah (occurring in this week's parasha, Shemot 21:11), which - although debated in the Talmud - is generally understood to refer to the husband's obligation to provide for food, clothes, and to the obligation of marital sex.

To balance the husband's and wife's financial responsibilities, Hazal instituted that the husband would be entitled to the wife's earnings. These various financial responsibilities, including others, are referred to as tenai ketuvah, the stipulations of the ketuvah, and are in addition to the primary ketuvah, which is a lump sum the husband (or his estate) pays at the termination of a marriage to protect the wife's financial future. Because Hazal understood that the tenai ketuvah exist fundamentally to protect the woman's economic interests during marriage, the wife is entitled to restipulate the terms to allow either for a separation of earnings and financial responsibilities, or alternatively, for a sharing of earnings and an equal division of financial responsibilities (see Rambam, Ishut, 12:1-4). The latter approach has been adopted by some communities in Israel, where people are bound by the ketuvah as a legal document, and has been incorporated as part of a pre-nuptial arrangement for the halakhic ketuvah.

This is the institution of nissuin. But when does nissuin begin? According to the Torah, as discussed above, it begins after eirusin when the couple has sex together. The Gemara (Ketuvot 48b) recognizes that this is the primary way it is effected in the Torah, but at the same time asserts that it is also effected Biblically by the chuppah (see also Arukh HaShulkhan Even Ha'Ezer 55:13-14).

What is the chuppah? This is never explained clearly in the gemara, and we find in the Rishonim three primary models: (1) The couple being in a private space, for the sake of nissuin, where they have the opportunity to have sex (Rambam Ishut 10:1-2); (2) The wife entering into the husband's house (Ramban Ketuvot 4a, and Ran, Ketuvot, on Rif 2a); and (3) an act that demarcates and designates the couple (or the woman) as married, i.e., a form of communal recognition of their status (see Tosafot Yoma 13b, s.v. li'hadah¸ and Mordechai Ketuvot 132). Of course, a fourth model is possible, which would combine 1 and 2, and require entering the husband's house in privacy (there are those who see this as Rambam's position), or a possibility of combining all three models (this seems to be the position of some Geonim, see Ittur, Birkhat Chatanim).

Now, the first model is clearly built on the fact that according to the Torah, sex effects nissuin, and sees the case of yichud as designating that reality of married life - the sexual relationship. The second model, in contrast, is built on the Torah's use of the term bayit, household (this is stated explicitly in Ran), and sees chuppah as designating the second reality of married life - the building of a household and the shared economic commitment. The third model works on a separate plane altogether, and relates more to the communal recognition of the couple as a married couple.

Although the first two models, yichud and bayit, would both require some sort of a room for chuppah, there remain a number of possible halakhic differences between the two. According to the yichud model, (a) the groom does not need to own the room; (b) the room must be private; (c) the construction of the room only matters insofar as it affords or does not afford privacy; (d) there would probably be a minimum amount of time required for them to be in privacy, enough time to allow them to have sex (shiur biah), although possibly not (since it would be defined as yichud immediately); and (e) if the woman were a niddah, and sex was not possible, chuppah would not be effective.

According to the bayit model, in contrast, (a) the groom probably should own the chuppah (although it might suffice if it has been loaned to him or designated for this purpose); (b) the room does not have to be private, and thus our chuppah might suffice; (c) the room might need to be constructed like a bayit (e..g, chuppah poles would need to be on the ground, the chuppah might need to be constructed like a halakhic roof, or with a tzurat ha'petach, etc.); (d) no minimum amount of time would be required; (e) a chuppat niddah would work.

It is unclear whether our current chuppah, the canopy, is based on the bayit model, or whether it is based on the third model, that of public designation (see Even Ha'Ezer 55:1, and commentators ad. loc., who state that we attempt to do all three models). I tend to see our current chuppah as the third model, and thus do not make demands regarding its construction and ownership. At the same time, I try to ensure that the yichud afterwards satisfies both the yichud model and the bayit model, and thus demand that the chatan personally rent the yichud room. Interestingly, while Sefardim in general rule like Rambam, they do not have the practice of doing yichud at the wedding, although Rav Ovadya Yosef has tried to change this (see Yabia Omer, EH 5:8).

The final relevant issue is whether there is a need for witnesses for the chuppah (or - as is our practice - for the yichud). This is debated in the Achronim, with most assuming that there is no such need. There is good reason to assume that witnesses would not be required. In the first place, the halakhic implications of nissuin relate to the couple, not the outside world, so there is less need for public recognition for it to be effectuated. More significantly, nissuin is properly seen as the natural actualization of the formal and prior act of kiddushin. It comes about by the lived reality of the marriage, not by a new, halakhic act. As such, it happens naturally - it is a mitziyut, a real-world fact, and not a ma'aseh kinyan, a formal halakhic act (and thus cannot be done by a shaliach). As such, it does not require the formalization of witnesses. However, the model that chuppah is an act of designating the couple as married, does suggest an element of communal recognition, and might call for witnesses. Ironically, it is our practice to have witnesses for the yichud, which represents the lived reality, and not for the chuppah itself, which follows more the model of communal recognition.

By combining all there models, as is our practice, we demonstrate that as the couple moves from the formal reality of marriage into its lived reality, they are beginning a married life together that combines the personal and financial realities of that new relationship, and one that will take place in the context of the Jewish community. It is being a part of the Jewish community, being boneh bayit ne'eman bi'Yisrael, building a trustworthy house in Israel, in the community, that is reflected in the sheva brakhot, which we will take up in a future week.

Happenings at the Yeshiva

I received a number of halakhic questions this week regarding snow and Shabbat. Is snow muktzeh or nolad (considered newly created) if it fell on Shabbat? (No - Shulkhan Arukh OH 338:8, and Mishne Brurah no. 30 regarding rain, and Har Tzvi, Tel Harim, Soter regarding snow). Can one make snowballs or snowmen? (No - it is at least rabbinic boneh, building, see Rambam Shabbat 7:6). Can one shovel the snow on Shabbat? (If it has hardened, this may be a form of boneh, at least rabbinically - creating a path, or possibly soter, destroying. (See Har Tzvi, Tel Harim, Soter.) If it has not hardened, it would at most be an issue of tircha, exertion, or uvdah di'chol, weekday activity. One could certainly allow having a non-Jew do this, as there is no problem to ask a non-Jew to do acts which are uvda di'chol and tircha. Even if it had hardened, if there was any concern for safety, it could certainly be done by a non-Jew. Breaking ice can certainly be done if there is need - (see Shulkahn Arukh OH 320:10.)

On Wednesday, the day of the major snowstorm, Rabbi Josh Feigelson, one of our first musmachim and Hillel Rabbi of Northwestern University, visited the yeshiva. He spoke to the students, expounding on the story when Yaakov left Canaan and had the dream where he saw God, and then awoke saying, "Behold, God is in this place and I did not know." R. Feigelson told the students that in many ways this story reflects the reality of young adults - leaving home, going out to find a mate and profession, to make a name for themselves, and having the opportunity to see reality differently, to dream, to break forth, to ask the big questions, and to realize that "God was in this place" - to make meaning of their experiences, and to define their world and define them for life.

Rabbi Feigelson told the students that as a rabbi, they would hold the privileged position of being able to ask the questions that no one else got to ask, that they would be able to challenge and guide people about the choices they are making, the path they are setting themselves on, the way they are going to make their name in the world, how they would most actualize their tzelem E-lohim in the world. And that in the case of a campus rabbis, they would be able to raise these questions at a critical juncture in people's lives, when people are emerging adults, defining their identity. Rabbi Feigelson finally shared some stories where he had the opportunity to do just this, and then took questions and engaged the students' questions.

Another one of our musmachim was in the news this week. A mazel tov to our own Rabbi Akiva Herzfeld, for topping the list of Portland's most influential people, as reported in The Phoenix! As the article remarks:

He works to connect the generations - allowing older members of his congregation to continue in aspects of Jewish life they have long found meaningful, while also reaching out to young people - as in his annual college-student get-together at Shaarey Tphiloh, when he invites Jewish students from colleges around Maine and New England to spend a weekend at the synagogue (and attend a hockey game with other congregation members, young and old).

Beyond hisown community, Herzfeld is making a name for himself in the civic life of greater Portland. When Shaarey Tphiloh was vandalized by people who painted swastikas on the sign outside the building, he got in touch with a wide range of people - obviously the police, but also community organizations, and other religious groups - and held a rally to condemn hate as a way of responding to the incident. He's also willing to stop and chat when he sees people looking quizzically at his yarmulke, or is approached on the street to talk about Israel or Judaism. And he just gave an invocation at the NAACP breakfast for Martin Luther King Day...

"Jewish tradition and Jewish values have a lot to offer for people in Maine," he says, noting that one of the security issues he discussed was a report that an airplane passenger had become alarmed upon seeing a fellow passenger - a devout Jew, as it turned out - preparing for prayer by putting on tefillin, small boxes containing tiny copies of the Torah that are strapped to the arms and head during worship.

Mazel Tov, Akiva! Continue the great work bringing Torah to Klal Yisrael and to the larger world!