Thursday, November 18, 2010

Torah from Our Beit Midrash

The Gemara rules that a davar she'yesh lo matirin, something that is forbidden now but will be permissible later - like an egg that was born on Yom Tov, and is nolad (a type of muktzah) and cannot be eaten on Yom Tov, but can be eaten the following day, is not batel. The most common case of davar she'yesh lo matirin is chametz, which is forbidden on Pesach, but permissible afterwards, and the ruling that such items are not batel is consistent with the ruling that even tiny amounts of chametz in mixtures are not batel. Nevertheless, because of certain differences in the parameters of the two cases, and because it will return to being forbidden next Pesach, there is some debate as to whether chametz is a genuine davar she'yesh lo matirin.

This category of davar she'yesh lo matirin is very different from that of devarim chashuvim, important items, such as a biryah, a whole, natural entity, such as a whole bug, which we discussed last week, and which is also not batel.  In the case of biryah, the bug is not batel because of its significance.  Hence, when it is not whole, it loses its significance and it is batel.  Thus, the category of biryah is only relevant for solid objects that get mixed up - yavesh bi'yavesh - and not for mixtures of liquids - lach bi'lach - since liquids are never considered significant as entities.  The case with davar she'yesh lo matirin is very different.  These things are not inherently important.  The reason they are not batel is generally assumed to be the reason stated by Rashi (Beitzah 3b, s.v. Afilu) - rather that eat it as a forbidden object and be required to use the mechanism of bitul, one should wait until it becomes fully permitted and eat it then.  This logic applies equally to liquids and solids, and thus such objects are not batel regardless of the type of object or the type of the mixture.

The logic of "just wait" is one that can be applied to many scenarios, and a lot of the parameters that limit the scope of davar she'yesh lo matirin are challenged because of the logic of "just wait".  This halakhic area is thus an ideal one to reflect on the tension between a halakha based on formalisms - specific, quantifiable rules which may have been initially formulated because of certain concerns, but in the end operate independent of such concerns - and one based on the underlying reason of the law.   In almost all areas of halakha, formalisms rule, although they are sometimes tweaked by their underlying reasons.  The reason for this is simple, a legal system could not succeed if it was not clear, concrete, and specific.  However, in this case, the underlying reason of "just wait" plays a major role and threatens and rewrites many of the rule's limits and formalisms.

Let consider some of these limits.  The first one - made explicit in the Yerushalmi - is that davar she'yesh lo matirin - does not apply when the mixture is a case of min bi'eino mino - of like and unlike, for example, if flour which is chadash, of the new grain that was grown before Pesach and is forbidden until the second day of Pesach, was placed in a soup of water, vegetables, and the like.  Now, it is very hard to understand why this should make a difference, since even here one can say, "just wait." 

To explain this, Ran (Nedarim 52a, s.v. vi'Nitarev) develops a fascinating new approach.  The operative principle, says Ran, is not "just wait," but rather that bitul requires difference to take effect.  If everything is the same it is not possible to say that one thing wipes out the identity of the other, since the other has no distinctive identity.  Thus, the only reason that bitul is possible in a case of min bi'mino, when a forbidden food is mixed up in the same type of food,  e.g., meat slaughtered properly and meat slaughtered improperly, is because there is a difference.  The difference is not that one is meat and the other is not meat, but that one is heter and the other is issur.  Now, in a case of davar she'yesh lo matirin, where the issur itself will become heter, and the two objects are the same type of physical object - min bi'mino - there is so little difference between the two that bitul is not possible.  This is why bitul does not occur in min bi'mino in this case, but it does occur in min bi'eino mino.

Now, this answer of the Ran is ingenious, but it is completely ignored li 'halakha.  If it were true, the rule that bitul does not occur in this case would be Biblical, and we rule that it is Rabbinic.  Moreover, since Ran gives more weight to the issur and heter difference, according to him one could never have bitul of a full heter bi'heter, totally permissible objects, such as a drop of milk in a vat of pareve vegetable soup, and this is clearly not the case.  And, finally, all the rulings of Shulkhan Arukh regarding davar she'yesh lo matirin assume Rashi's reason of "just wait," as we will see below.  But, if the Ran's reason is not correct, why is the scope of this law limited to min bi'mino

It is worth noting, first of all, that the law as originally stated by Rebbe Shimon (in Tosefta Trumot 5:15 and Gemara Nedarim 58a) does not mention the limit of min bi'mino.  The reason we rule that it is limited to min bi'mino is partly because it says so in the Yerushalmi (Nedarim 6:4), and, more significantly, because this law that min bi'mino is not batel is stated explicitly regarding tevel, grain that has not had trumot and maasrot taken from it (Mishnah, Avodah Zarah 73a).  Now, tevel is something that will be permitted later - a davar she'yesh lo matirin, and nevertheless it is batel when mixed with eino mino.  This, argue many Rishonim (see Tosafot Beitzah 39a, s.v. Mishum, and Tosafot Avoda Zara 73b, s.v. Tevel), shows that law that it is not batel is limited to case of min bi'mino.  It should be noted that other Rishonim (Ramban, Avoda Zara 73b; Ramban Milchamot, Pesachim 7b; Ra'ah Torat HaBayit 4:4, 38b) demonstrate that the ruling of davar she'yesh lo matirin was originally a da'at yachid, the minority opinion of Rebbe Shimon, and hence it was not accepted in other gemarot and mishnayot, such as the mishna regarding tevel.  It was only later, in the time of the Amoraim, that this rule was accepted and applied across the board.   Now, in the original statement of Rebbe Shimon in the Tosefta, min bi'mino is not mentioned, and one could possible come to the conclusion that this is not a limit on the scope of davar she'yesh lo matirin.  However, in light of the Yerushalmi, and in light of the way many Rishonim conflate the case of tevel with that of davar she'yesh lo matirin, it is almost unanimously ruled that this law is limited to cases of min bi'mino.

So, we are back to square one. The logic of "just wait" would dictate that it should apply in all cases, and no limits appear in Rebbe Shimon's original statement.However, li 'halakha it is limited to cases of min bi'mino.  Why is this?  Taz and Shakh quote the Rema in Torat Chatat who states that in such a case it's not like you are really intending to eat the issur (in the vegetable soup case -you want to eat the soup, not the flour), so it is not so justified to say, "just wait."  This is a pretty weak answer, as Taz himself notes.  A better explanation is a formalism.  Chazal may have been motivated to forbid such mixtures in all cases, but they did not have the mechanism to do so in a case of eino mino.  In such a case, once something is such a minute presence that it cannot be tasted, there is no good way to say that it should not be batel.  It can't be tasted, it no longer has its own identity (as, say, "flour"), so of course it is batel.  Such is not the case with min bi'mino.  There, already Rebbe Yehudah is of the position that it is never batel - since everything is the same thing, such as non-kosher wine mixing with kosher wine, the smaller product never loses its identity, since there is always wine present.  We don't rule this way - we rule that it is batel bi'rov - which is the opposite argument: since it is all the same, it loses its identity immediately - there is never "other" wine present - it's all wine.  That is our general rule.  But, when we want to make something forbidden even in small quantities, such as here - we avail ourselves of Rebbe Yehudah's logic and use the mechanism of min bi'mino lo batel to prevent bitul.

According to this explanation, at the end of the day there is no good reason to not say "just wait" by a case of min bi'eino mino, but the formalisms of halakha only allow us to say that no bitul occurs when it is min bi'mino.  In an eino mino case the reason is present, it is the formal mechanism which is absent.

However, this is not the end of the story.  Since the reason is present, and since it is a persuasive one, it works to reshape this parameter.  Basing himself on a Tosafot in Beitzah, Rema (92:1) rules that in a case of davar she'yesh lo matirin, whenever an ingredient is put into a mixture to help and improve the mixture, it is called for these purposes min bi'mino and it is not batel.  This effectively makes moot the limit of min bi'mino, since in every case that is not an accident, an ingredient is always added to improve the mixture.  Without rejecting the formalism outright, the underlying reason has managed to break through the somewhat arbitrary limits.  (It should be noted that the Magen Avraham reads Rema in a much more limited way, and largely maintains the mino / eino mino distinction).

This dynamic continues to play out throughout the Shulkhan Arukh's rulings on this matter (Yoreh Deah, 92).  First and foremost is the ruling (based on Beitzah 3a, but debated in Rishonim) that this rule applies not only in cases of mixtures but even in cases of a doubt.  So, if there is a doubt whether an egg was laid on Yom Tov or before Yom Tov, one cannot eat it, even though this is a doubt about a rabbinic law and we should be lenient.  Why are we not lenient?  Because rather than eat something that might be forbidden, it would be better to wait until tomorrow and eat it when it is definitely permitted.   This extension to a case of safek is a total jump from the formal ruling of eino batel - that in a mixture it is not nullified, but it is also a completely logical extension of the principle of "just wait."

Similarly, Shulkhan Arukh rules that this law should, in principle, apply to a case when a fork absorbed pork and was mixed in other forks, since one can just kasher the fork, why use it based on bitul?   (This again shows that Rashi's approach is the one adopted li 'halakha).  Taz challenges this - why is this considered mino?  The problem isn't the fork, per se, but the pork absorbed in the fork, and that is eino mino!  But, says Taz, since the argument is "just wait" - "we should not look at any logical reason to make distinctions in this case, but rather say, eat it in a permissible way, not a forbidden way."  That is, the underlying logic should dictate not to make formal distinctions.  Similarly, when Rema rules that this law does not apply to absorbed foods (in vessels, in other foods, etc.), Shakh and Taz both argue.  And, says Shakh, even if there is no textual evidence to disprove Rema in cases where it is just taste that is absorbed, and a formal reason could be given to distinguish between the cases (see Taz), nevertheless, we should not look for distinctions, since we should just say - better to wait and eat it when it is fully permissible.

This case is one where the tension between the reason and the formalisms is very much on the surface, and it is often the underlying reason that wins.  However, this is a rare occurrence, and for good reason, because this case also demonstrates what happens when undue weight is given to the reason - all limits and parameters are challenged.  No longer are we limited to mino, no longer are we even limited to a case of a mixture.   There is no longer a rule that davar she'yesh lo matirin lo batel, the rule - or should I say the principle - becomes "if you can just wait to make it better, you should."  Taken to its extreme, this would make eating any mixture of bitul only acceptable  b'dieved, which is  clearly not how we rule.  By dropping formalisms, halakha loses its clear, precise parameters, and the reasons expand to fill the available space.  Thus, the classic halakhic mode is one where the formalisms dominate, and where the underlying reason plays a more subtle role in shaping the formalisms at the edges.

A Thought on the Parsha

Yaakov Aveinu is a challenging character - one who is traditionally associated with the quality of emet - titen emet li'Yaakov - but who often seems to more be a person of trickery or deceit.  From purchasing the birthright, to stealing the blessing, to using the staves with Lavan's sheep, he, like his name, works around the truth to get to the desired end result.  The Torah, starting with the story of Yaakov's wives, demonstrates how Yaakov received punishment for his deception, measure for measure.  As the younger son, put himself ahead of Esav.  This was reversed on him, and he was given the older daughter, Leah, instead of the younger one, Rachel, whom he had worked for.  Lavan, for his part, drove home this lesson, "This is not how we act in our place, to give the young one before the older one."   And, because he clothed himself in Esav's garments, and appeared to be who he was not, so that his father could not recognize him (vi'lo hikiro), in a similar way, he was shown Yosef's garments, and asked "do you recognize (haker na) whose these are?," and mourned for many years, believing Yosef to be dead. 

Yaakov, then, receives punishment for his deception.  But did he learn his lesson?  Sometimes punishment is just that, punishment.   Do we see any evidence that he had learned to deal with his problems head on, and not to seek a sneaky way to achieve his goals?   I believe that he did, and that his education began in last week's parsha and is demonstrated in this week's parsha.  In VaYetze we find that he tried to profit from Lavan's sheep by a trick with striping the sticks by the water troughs.  But, if we read closely, we will find that that trick was not successful.  The angel tells him in a dream that he has seen everything that Lavan was doing to him, and that he - the angel -has ensured that the sheep that would be born would be of the type of sheep that - according to the conditions of Yaakov and Lavan's agreement -  would be owned by Yaakov.  Why the angel's help was necessary is clear from the end of the parsha.  There, Yaakov tells Lavan that "you have switched my wage 10 (or 100) times."   Lavan was on to Yaakov, and would change the conditions of the agreement after the sheep had copulated.  There was no way that any trickery could help at this stage.  The only way Yaakov succeeded was because of God's help.  "Were it not for that the God of my father… was with me, you would have now sent me off empty handed." (Breishit 31:42).   The lesson that Yaakov has learned is that trickery does not help if the other person is on to you.  You are not always dealing with a blind father or a ravenous brother.   Even from a pragmatic, and not moral, perspective, trickery can backfire.  If one truly wants to succeed, one must rely on God.

It is also important to note that Yaakov may have already learned his lesson to some degree before the visitation from the angel.  For the scheme with the staves was not deceit or lying per se.  He was playing by the letter of the agreement if not by its spirit.  It was not very "cricket of him" to be doing this, but it was not of the same type of deceit that had gone on earlier.   And, moreover, Yaakov exemplified an honest and conscientious work ethic in his tending of sheep - one that was clear even in his initial coming to Aram (cf. Breishit 29:7).  He is thus entitled to have righteous indignation when Lavan accuses him of stealing, and defiantly proclaims his honesty and his work ethic to Lavan: 

This twenty years have I been with you; your ewes and your female goats have not miscarried their young, and the rams of your flock have I not eaten.. That which was torn of beasts I brought not to you; I bore the loss of it; of my hand did you require it, whether stolen by day, or stolen by night.  Thus I was; in the day the drought consumed me, and the frost by night; and my sleep departed from my eyes.
(Breishit 31:38-40)

So certainly by this time, and perhaps always, Yaakov is a person of a strong work ethic and of honesty.  But in his earlier interactions with Esav, and perhaps in his trick with the staves, he has been willing to compromise or fudge that commitment when the price was too high to pay - when he would not have the birthright, not receive his father's blessing, when he would suffer financially in a significant way.

Thus, at the beginning of our Parsha, it is fitting to ask whether Yaakov has abandoned trickery, not only because it may backfire, and not only when the price is low, but even when such trickery could succeed, and even when the price of abandoning it is quite high?  That is, is he committed to honesty - emet - as a moral and ethical principle, never to be compromised?  Did he learn that the ends do not justify the means, that regardless of whether we achieve our goals or not, we must always be moral and ethical in our actions? 

The answer to this is made clear in the opening of this week's parsha.  Knowing that Esav is coming to greet him with an army of 400 people - perhaps with the intent to wipe him out - Yaakov takes defensive measures but does not resort to any trickery.  He splits his camp to limit his losses, he sends gifts appease Esav and to win him over.  This is military strategy and diplomacy, but not trickery.  He is quite explicit to Esav about his intent with the gift: "And I am sending to tell my lord, to find favor in your eyes." (Breishit, 32:6.  See also, more explicitly, 32:21, and 33:8).  And then he prays.  As Rashi states (Breishit 32:9)- he prepared in three ways, for war, through prayer, and with a gift.   Yaakov has learned and learned well.  Although his life and the life of his family and people are at stake, he does not deceive.  He uses all the strategies at his disposal, and he turns to God, because - as he has learned from the angel - it is only God's help that will ultimately determine his success.  And in all this, he is honest -  he does not lie and he does not deceive.

The climax of this comes in the dramatic scene of the struggle between Yaakov and the angel.  In this struggle, Yaakov fights his enemy head on, and tries no dirty tricks, nothing underhanded.  As a result, he is not able to get the upper hand, but he still will not resort to trickery.  It is rather the angel, or the "man," who pulls a Yaakov move:

And when he saw that he prevailed not against him, he touched the curve of his thigh; and the hollow of Jacob’s thigh was out of joint, as he wrestled with him.
(Breishit 32:26)

It is the angel who, when he cannot win in a fair fight, resorts to an underhanded and sneaky move.  He hits Yaakov below the belt.  In fact, he hits him in the "curve of the thigh" - a place on the body near, and suggestive of, the "curve" of the foot - the heel, the akev.   It is the angel who becomes a Yaakov, and it is Yaakov who becomes Yisrael.

And he said, Your name shall be called no more Jacob, but Israel; for you have striven with God and with men, and have prevailed.
(Breishit 32:29)

He has fought against a superior power, and has not resorted to devious tricks - he has prevailed and his no longer Yaakov, no longer the akev, that seeks the bent and twisted way, but one who fights a fair fight, and who remains straight no matter what.  I would even go so far as to suggest that the name Yisrael connotes not only "to strive with God" but - reading the sin as a shin to be yashar, to be straight, not to be an akev, and thus to be a true man of God.
This then is the culmination of Yaakov's transformation, of Yaakov becoming Yisrael. However, he must still live with the consequences of his past actions. He will be punished in the kidnapping and his many years of mourning that followed. And he will also have to deal with how his past actions have influenced his children and their values. For Reuven and Shimon wipe out the city of Shechem, having lured them into circumcising themselves through deceit - b'mirmah. This same word, mirmah, is what Yaakov uses to challenge Lavan when the sisters are switched - lamah rimitani, why have you deceived me? - and, more significantly, is how Yaakov's original deceit of Esav is described - bah chicha bi'mirmah, your brother came in deceit. The deceit of Reuven and Shimon is a comeuppance for Yaakov's past actions - not in the form of a punishment, but in having to live with the real-world consequences. For when we act with deceit, when we act with a philosophy that the ends justify the means, then our children will learn to do likewise. And when Yaakov needs to confront Shimon and Levi for this horrendous deed, he is not able to take the moral high ground. He cannot lecture them about honesty or the ends not justifying the means, because this would come off as mere hypocrisy. All he can do is lecture them about the possible negative consequences of their actions:
And Jacob said to Simeon and Levi, You have brought trouble on me to make me odious among the inhabitants of the land, among the Canaanites and the Perizzites; and I being few in number, they shall gather together against me, and slay me; and I shall be destroyed, I and my house. (Breishit 34:30)
To which they are able to respond taking the principled high ground:
And they said, Should he deal with our sister as with a harlot?
Even once he has transformed into Yisrael, he must live with his Yaakov past. He cannot tell them what needs to be said - that there is another principle at stake here, not just family pride, but integrity and morality. He has become Yisrael, but he also remains a Yaakov.

If we begin to live our lives as a Yaakov, we will have to live with the consequences for a long time. The challenge for Yaakov/Yisrael, like the challenge for all of us, is to strive to always live as Yisrael, as Bnei Yisral, to meet our challenges head on, without deceit, without allowing the ends to justify the means. To meet our challenges honestly and straightforwardly, to do so as men and women of God.

Shabbat Shalom!

Happenings at the Yeshiva

Two weeks ago, our Beit Midrash moved temporarily to the second floor as repairs were being made in the downstairs beit midrash.   After having been in the 2nd floor Beit Midrash for a week, many of us felt that it was a better location - the room had large windows and plenty of natural light, its size and configuration were more conducive to learning, and it pulled the various components of the yeshiva -the Beit Midrash, the administrative offices, and the classrooms together.  After having considered the matter carefully, and having a special meeting so that we could hear the input of the students (who were almost unanimously in favor), the administration decided to move the Beit Midrash to the second floor.   We have been working out some of the details over the last 2 weeks - location of the copier, student lounge, and so on, and hope to have them all resolved soon and to make our move official. 

Students have been very flexible during this transition period-  which has been greatly appreciated - and have dealt well with the minor inconveniences that this move and this transition has entailed.  The space is great and the learning and the kol Torah have been intense.  We look forward to soon having all the kinks worked out, and to really making this new Beit Midrash our home.

On the learning front, first- and second-year students continue to learn bishul in Hilkhot Shabbat, and third- and fourth- year students finished learning the topic of things that are not batel, nullified, turning from devarim chashuvim, significant items, to the category of davar she'yesh lo matirin, forbidden foods that will be permissible in the future.   Dan Perla gave his ben adam li'chavero dvar halakha on the concept of hasagat gvul, encroaching on one's territory, and the issue of protectionism and free market.  I remarked at the end that while many of us are strong believers in a free market (and for the most part halakha has also been in favor of a largely free market, and has defined hasagat gvul very narrowly), we should be particularly sensitive to these issues in an era where Starbucks or Barnes and Noble come in and run local coffee shops and bookstores out of business.