Monday, September 12, 2011

A Thought on the Parsha

Ki Teitze is a parsha densely packed with mitzvot.  A new mitzvah appears almost every few verses, and sometimes even more frequently.  It is, in a way, the parshat Mishpatim or the parshat Kedoshim of Devarim.  Now, of course, just because there are all these laws does not mean that it is always clear what their parameters are or how they are to be implemented.  In fact, last week's parsha, Shoftim, provided for the institution to handle such ambiguities, when they would arise or present themselves.  There we read that when there is a doubt regarding the law, its interpretation and application would be determined by the "priests and the judge" who would be holding court near the Temple.  The Talmud understands that the Sanhedrin, i.e., the Central Court, served this function, and this verse, then, serves (by extension) as the basis for rabbinic authority to render binding decisions about the interpretation of the laws of the Torah.

However, it is not clear what rules and methods the Rabbis are to use to interpret the laws of the Torah.  As a general rule, we find two methods that serve as the primary basis for interpretation.  One is that of longstanding traditions, or mesorah.  So, for example, we know that the "beautiful fruit" that we take is an esrog, because we have a longstanding tradition that that is the fruit being referred to. The other method is that of using certain defined principles of interpretation, the most well known collection being the list of 13 Hermeneutic Principles of Rabbi Yishmael.  Even here, however, there is much uncertainty as to how to apply these rules, and this is often the basis of a lot of the debates in the Talmud.  Which of these methods serves as the primary source of rabbinic interpretation, or Torah she'b'al peh, is also heavily debated.  There are those that insist that all interpretation go back to Sinai, while there are others - Rambam chief among them - who insist that the vast majority of the Oral Tradition is based on the use of the interpretive laws, and that was therefore derived by the Rabbis post-Sinai (and also, therefore, could allow for possible other interpretations).

Now, when one reads many passages of the Talmud where these hermeneutic rules are applied, one emerges with the impression that the application of these rules is always based on technical considerations (extra words, parallel words, etc.), and that the parameters of the law are worked out solely based on these technical concerns.   The reason that undergirds a particular law is often seen - or so it would appear - as irrelevant to this process.  

In this regard, it is worth noting two discussions in the Talmud around two different mitzvot in this week's parsha.  In Devarim 24:17 we read "Do not take as collateral the cloak of a widow."  Does this apply to all widows, or perhaps only poor widows, asks the Mishna (Baba Metzia 116a).   The first opinion is that it applies to all widows, because the verse does not distinguish.  Rabbi Shimon, however, states that it only applies to poor widows.  The Talmud explains that Rabbi Shimon believes that one is entitled in the interpretive process to darshinan ta'ama dikra, to extrapolate the reason behind the mitzvah, and to use it to determine the parameters of the given law.   The Talmud, in many places, refers to this position of R. Shimon, but the general sense is that it is a position that is rejected, and that we rule that we cannot use our understanding of the reason behind the mitzvah to determine its parameters.

That is one mitzvah.  But there is another mitzvah in this week's parsha.  "You shall not see your friend's donkey or ox or sheep collapsing on the road and hide yourself from them.  You shall surely help him lift them up." (Devarim 22:4).  This is the mitzvah of perikah and ti'inah, unloading and reloading an animal that is collapsing under its load.  Now, what is the purpose of this mitzvah?  Is it to alleviate the suffering of the animal, a concern for tza'ar ba'alei chaim, animal suffering?  Or, alternatively, is it a concern for the owner who may lose his donkey, if it dies on him, or who may be stranded by the side of the street?   This question would seem to be only of academic interest, except that the Gemara in Baba Metziah (32a ff.) raises it with a very practical concern in mind.  Is, asks the Gemara, tza'ar ba'alei chaim a Biblical concern, or only a rabbinic one?  Is it the underpinning reason of this mitzvah?  Now, one way this question is significant is that it will determine what weight we give to the concern of animal suffering in other contexts.  However, the immediate concern of this Gemara is not to extract the value and apply it elsewhere, but to use the very value itself in interpreting the parameters of the mitzvah.  If, for example, tza'ar ba'alei chaim is the operative principle here, then the mitzvah would apply even if the donkey was ownerless.   On the other hand, this can be a limiting principle as well.  If the concern is about the suffering of the animal, then there is much less of a mitzvah - if any - in reloading the animal.  The Gemara leaves this question unresolved, but what clearly emerges is that one can use the reason behind a mitzvah to guide the interpretation of the parameters of the mitzvah.  What is particularly fascinating is that this Gemara indicates that even when hermeneutic principles are being used, the way they are applied can be guided by what is understood to be the underlying reason of the mitzvah.

How to reconcile these two sugyot is unclear.  It would seem that sometimes we do use the reasons for the mitzvah and sometimes we do not, but it is not clear what the dividing line is.  Certainly, one key concern is whether we can state with any confidence what the underlying principle actually is.  If multiple reasons can be given for a mitzvah - which is almost always the case, witness the two explanation for perikah and ti'inah above  -  then using an assumed reason to guide interpretation would seem much more questionable.  In a recent festschrift volume for Rabbi Saul Berman, I explore this issue at length, and identify a number of different approaches as to when we can use the reason of a mitzvah in the process of interpretation, and when we cannot.

A final consideration is that of narrative.  For, indeed, our sense of the Torah's values comes not only from an understanding of the reasons behind mitzvot, which, as we have seen, are far from explicit, but also from the narratives of the Torah.  Here, while the values are also not explicit, they are often a little more on the surface.  However, even if we believe that we have identified the correct value in a narrative, it is more of a jump to say that this should inform the parameters of a given mitzvah, since this value does not directly underpin the mitzvah.  

An interesting case in point is again in this week's parsha, regarding the mitzvah of recognizing the first-born son.  We are told that a father cannot give the double portion to a younger, more beloved son, and that he is required to recognize the first-born's rightful status and privilege.   A moment's reflection, however, will reveal that many narratives of the Torah tell the opposite story.  From God's preferring of Hevel's sacrifice of Kayin's, from the Abrahamic line bypassing Yishmael and Esau, both first-borns, and passing rather through Yitzchak and Yaakov, to the actual double portion being taken from Reuven and given to Yosef (who gets two tribes), all the narratives of the Torah tell the  story that what matters is not birth order, but righteousness and merit.  [This phenomenon of bypassing the first-born is called by scholar's the usurping of the right of primogeniture, who note that this is a recurring theme through Breishit].  Perhaps the most explicit statement of this comes not from one of the patriarchs, but from God Godself.  "So shall you say to Pharaoh: My son, my first-born, is Israel."  (4:22).  Now, we are not the first-born of the nations.  But God has chosen us, and has given us the status of the first-born.   God, as it were, violates the commandment in this week's parsha!  God recognizes Israel as God's first-born, although we are not first-born in the birth order.  

The Torah is telling us, in these narratives, that the hierarchies of society do not matter as much as the issue of personal worth or merit.  But, then, how do we deal with the mitzvah in this week's parsha, which tells us that we must uphold these societal hierarchies?  One possible distinction is the difference between having more merit or being more loved.  Pure favoritism is dangerous (witness the Yosef story) and an insufficient basis for reassigning the birth right.  Choosing based  on merit, however, is a different matter.  The problem is that the Torah seems to prohibit reassigning the birthright regardless, and this is certainly how the rabbis understood it.   

A better resolution, I believe, is to embrace both values.  The societal structure cannot and should not be overthrown and must be upheld.  At the same time, we can choose based on merit, as long as we are not undermining this structure.  How can we do this?  Well, what about a bequest?  If we bequeath property as a gift - even if it is the majority of the estate - to a younger, more worthy child, and at the same time we recognize the first-born's status and allow the first-born to inherit a double portion of the non-bequeathed estate, then we have both been true to the mitzvah of the Torah, and its value, as well as to the narrative of the Torah and the values inherent in them.  And, in fact, we find that the Rabbis created the vehicle of matanat shekhiv mei'ra, a deathbed bequest, which - among other things - is not constrained by the laws of the first-born's double portion.  Even more startling, we find in a mishna in Baba Batra (133b), the opinion of Rabban Shimon ben Gamliel that a father should be praised if he chooses to completely disinherit all his children if they are undeserving.  Even the Sages that argue, only frown on cases where the children are fully disinherited.    When dealing with a case where one uses a bequest to distribute his estate to his various children in a way that does not follow the Torah's system of inheritance, they pass over it in silence:

If one distributed his property verbally, and gave to one son more, and to another one less, or if he assigned to the first-born a share equal to that of his brothers, his arrangements are valid.  If, however, he said, 'as an inheritance', his instructions are disregarded.  (Baba Batra 126b)

As long as one is not directly tampering with the inheritance, as long as one respects the societal structure, one can distribute his property to those whom he chooses. 

It is possible, then, to both live up to the mitzvah and the narrative, even when they are at loggerheads and it is instructive to note that the Rabbis, through the institution of deathbed bequests, provided the mechanism for navigating this conflict.  This, then, points to another role that the Rabbi play.  Not that of interpretation, but that of legislation.   As we are learning this month, they instituted many things for the sake of tikkun ha'olam, fixing the world.  This suggests that to just have left matters as they were, based on Torah law alone, would be to leave things somewhat broken.  How could the Rabbis legislate in these cases if the Torah did not see fit to do so?  Part of the answer is that there is more to the Torah than just the mitzvot.  The narratives and reasons behind the mitzvot inform us of Torah values, and it is the role of the Rabbis to attend to these values, both in their role of interpreters of Torah law, and in their role as legislators for a religious society.  In doing so, they enable us to live up to the mitzvot of the Torah and to the values of the Torah, combined.
Shabbat Shalom!

P.S.  My apologies to all the first-borns out there who may have felt discriminated against by any of the above discussion.  It goes without saying that there are just as many worthy first-born children as second-born children (as third-born children, etc.).

P. P.S.  For those who would like to read more about the interplay of narrative and law, and particularly with attention to the law of the first-born, I would highly recommend the article by Robert Cover, "Nomos and Narrative," which can be found here.

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