Friday, January 28, 2011

More on Brain Death and Organ Donation Statement

The discussion regarding brain-stem death and organ donation continues in the Orthodox community following the statement authored by Rabbi Linzer and signed by over 100 Orthodox rabbis in support of the brain death definition and the mitzvah to donate organs upon death.

These are two recently published articles about the topic and the statement:

The Jewish Star: Is brain death enough? RCA says maybe

The Canadian Jewish News: Rabbis urge brain death standard for organ donors

A Thought on the Parsha

Sanctity of Space and Sanctity of Time

There is barely a pause which separates the theophany of the Giving of the Torah at Sinai, in last week's parsha, to the myriad of laws and the nuts-and-bolts mitzvot of this week's parasha.  How are we to understand this sudden transition?  Where is the kedusha, the holiness, the human-divine encounter, that follows Sinai, that can be considered a continuation of the Revelation?

Now, the concept of kedusha is present in both parashat Yitro and in parashat Mishpatim.  It is not the kedusha of Mt. Sinai, where the Revelation itself occurred.  It is rather the kedusha of Shabbat:  "Remember the day of Shabbat to keep it holy." (Shemot 20:8); "Six days you shall do your work, and on the seventh day you shall rest…" (Shemot 23:12).    It is only in next week's parasha, in Terumah, that the Children of Israel are finally commanded to build a Mishkan, a holy space for the Divine presence.

When we consider the two forms of kedusha, kedushat zman and kedushat makom, the holiness of time and the holiness of space, it is clear that the Torah gives priority to the holiness of time.  The kedusha of Shabbat was introduced to the world from the very beginning of Creation - "And God blessed the seventh day and made it holy..."  (Breishit 2:3); the first reference to a holy place comes perhaps with Yaakov (cf. Breishit 28:16-17), but most clearly when Moshe encounters the burning bush (cf. Shemot 3:5).  Shabbat is one of the first mitzvot given to Bnei Yisrael - it is commanded before Sinai, together with the giving of the manna at Marah (Shemot 16:23).  It is then commanded again at Sinai, and yet a third time in Mishpatim.  Only after all this are the people commanded to build a Mishkan.  In fact, even when the Mishkan is built, it is a portable structure, and thus does not truly designate one space in particular as holy.

Not only does kedushat zman chronologically precede kedushat makom, it also takes precedence when the two are in competition.  The Torah regularly juxtaposes the Mishkan with Shabbat (cf. Shemot 31:12-18; 35:1-4;  Vayikra 19:30; 26:1), from which the Rabbis learn that the building of the Mishkan must take a backseat to the observance of Shabbat.  The sanctity of time trumps the sanctity of space.

Why is it that the Torah gives more weight and prominence to the sanctity of time?  A number of answers suggest themselves.  On a philosophical level, time precedes a place (only matter, not a place, is required for time), and a place exists within time, whereas time does not exists within space (this latter reason suggested to me by Rabbi Yaakov Love).  On a practical level, time is accessible to all; a particular space is only accessible to a limited number of people.  And, indeed, over two millennia of exile, the Jewish People, without a Temple and without a homeland, every week experienced the kedusha of Shabbat.    In addition, that the holiness of a place, because it is physical and concrete, can easily slide into a fetishism, and a form of idolatry.  The place becomes an object of not only reverence, but worship.  Time, as an abstraction, is free from such associations.   It is thus that scholars point out that the Torah's emphasis on the sanctity of time is in stark contrast to the pagan world, which gives pride of place to the sanctity of place.

In the context of our larger theme, I would like to suggest another explanation.  When the experience of kedusha occurs in a specific place it can also be compartmentalized to that space, and it will not naturally spread to other places.  Thus, one can - and there are those who do - limit their religious experience and behaviors to when they are in a synagogue, but when they are outside, they act in ways not reflecting Jewish values or practices.  To borrow from Moses Mendelsohn, one can be a religious person at home, or in the synagogue, and an irreligious person on the street.  Time, particularly cyclical time, is not like that.  Because of its abstract nature, it is more likely that what one experiences, or how one behaves, at certain times will influence how one behaves at other times as well.   And with Jewish time, which is cyclical time, a person will always be living in reference to those holy times.  Shabbat, which occurs every week, is to some degree experienced throughout the week - a person is either about to enter Shabbat, experiencing Shabbat, or has just left Shabbat.   Thus the belief that Shabbat spreads its kedusha into the entire week - from 3 days beforehand to 3 days afterwards.    And the mitzvah of Shabbat in the Ten Commandments - "Remember the Shabbat day to keep it holy," is understood by the Rabbis to mean - remember Shabbat already on Sunday, and be thinking of Shabbat from the beginning of the week.

This understanding of the significance of kedushat zman is, I believe, central to the understanding of the entire concept of kedusha.  The purpose of kedusha, of a transcendent experience, an experience of the Divine, is not in the Torah an end in itself.    Not only do we not find in the Torah a command to have such spiritual experiences, but that people who seek them out are often running a serious risk:   Nadav and Avihu, Aharon's sons, bring an incense offering to God when God's presence descends into the Mishkan, and they die as a result.  And thus, to prevent future similar tragedies, the Torah commands soon afterwards that only Aharon can enter into the holy of holies, and only with an intricate ritual and on the Day of Atonement.  (Vayikra 16:1-3). 

The events with Aharon's sons is closely paralleled in our parasha.  The people have already been warned not to draw near Mt. Sinai, and only Moshe - like Aharon in the future-  is allowed to enter into the space where God's presence is most intensely felt (Shemot 24:1-2).   But some of the people acted incorrectly, and - like Nadav and Avihu - were deserving of death:  "And upon the nobles of the people of Israel God laid not his hand; also they saw God, and ate and drank." (Shemot 24:10-11).     

Attempting to recreate the experience of Mt. Sinai, to have an intense communion with God, as an ends in itself is a path strewn with dangers and pitfalls, and is not the point of the Torah and of the mitzvot.  It may be the goal of other religions, but from the Torah's perspective that is not what kedusha is about.  That approach to kedusha is a self-serving one, it satisfies the religious longing of the individual, perhaps elevates the individual, but serves no greater purpose in the world.  Perhaps this is why the Torah emphasizes that those "nobles" who were deserving punishment "ate and drank."  Unlike Moshe's complete self-sacrifice of fasting for forty days when he encountered God on Mt. Sinai, these people were engaged, as their eating and drinking indicates, in a self-serving pursuit of experiencing the Divine.

The kedusha that the Torah is concerned with is a kedusha that translates into the world.  It is a transcendent experience which transforms the individual, heightens her awareness and sensitivity, so that she may then interact with the world in a different way.  "Kedoshim ti'hyu, You shall be holy, because I the Lord your God am holy."  And what follows? "Each man must honor his mother and father, and keep my Shabbats, I am the Lord." (Vayikra 19:2-3). 

This translation of kedusha into the world is the shift from the Revelation at Sinai to the laws of Mishpatim.  In fact, the very mitzvah of Shabbat transforms from Yitro to Mishpatim.  In Yitro, in the Ten Commandments, we are commanded to keep Shabbat holy, we are told that Shabbat is to commemorate God's creation of the world, and we are told that the experience of Shabbat should extend to our entire household - children, slaves, and the stranger in your midst.   In Mishpatim, we are first commanded to not oppress the stranger because we were strangers in Egypt.  Immediately following this, we are commanded to keep the Shmitta year, and give its produce to the poor, and to not work on the seventh day so that our animals and slaves may rest.  In short, Shabbat, and Shmitta are here being framed in the context of concern for the wellbeing of the poor and disadvantaged.  It is the Shabbat which is a remembrance of Egypt, not a remembrance of Creation.  What is striking is that Shmitta is not called Shabbat (as it is in parashat Behar), and even Shabbat is not called Shabbat, but rather the seventh day.   Moreover, there is no mention of the concept of sanctity, either of Shmitta or Shabbat.   What is the focus here is not kedusha, but rather the way this observance betters society and helps us live our lives according to our ideals.  Here, in the translation of Yitro into Mishpatim,  we have the extending of kedusha beyond its bounds.  The kedusha of Shabbat extends beyond the person who observes and experiences it, to benefit the entire society, and hence extends beyond Shabbat into the entire week. 

These two commandments of Shabbat must be in regular conversation.  We must, on the one hand, take the experience of Shabbat and translate it into the rest of the week, and into the very fabric of our lives.  But we must, on the other hand, not just pursue social justice for its own sake.  As religious people, the pursuit of these ethical goals have to be informed by our relationship to God, and have to be pursued because we believe that in so doing we are helping shape the world as God would want it to be.  The seventh day which the poor and slaves rest, is also Shabbat, and also has kedusha.  Hence, even in Mishpatim, the Torah, while not calling it Shabbat, uses the word in the verb form - "And on the seventh day tishbot, you shall rest."  At times one theme will dominate, and at times another, but the two must always be in conversation with one another.

Rav Soloveitchik explained prayer in a similar way.  How, Rav Soloveitchik asked, could prayer be considered a religious experience, when it is so self-serving, asking - as it does - for so many things that we need - health, economic wellbeing, intelligence, and so on.  He answers that one of the main purposes of prayer is to heighten our awareness and sensitivity to people in need, to what is wrong with the world and what needs fixing, in the context of connecting with God, so that when we step away from prayer, we can live our lives in partnership with God, doing all that we can to help those in need, and to make the world a better place, to make it a more Godly place.

Thus, the Mishkan, the kedushat makom of Israel, had defined as its goal that God reside among the Children of Israel.  Its purpose was not to allow each person the opportunity to encounter the Divine.  The people were not commanded to regularly visit the Mishkan.  Rather, its purpose was to ensure that the camp was set up was with an orientation to the Mishkan in the center.  Its purpose was that its kedusha spread out of its boundaries, so that way the people lived their lives day by day was always with an awareness that God was in their midst.

This type of kedusha is typified by kedushat zman.  It is not the kedusha of space, that remains locked up in its space.  It is a kedusha that spreads, that extends Shabbat into the rest of the week.   That not only makes our Shabbat experience holy, and a day of communion with God, but also transforms our work of the week to become holy work as well.   

It is a kedusha that transforms our personalities, so that we are imbued with a God sensitivity and bring this sensitivity into our interaction with the larger world.  It is the kedusha that is the transition from Yitro to Mishpatim.  How is the theophany, the Revelation at Sinai, the experience of the Divine, continued in the laws of Mishpatim?  Not by being recreated, but by being extended and translated.  By taking the experience of Sinai and ensuring that it will find its expression in the real world.

Shabbat Shalom!

Torah from Our Beit Midrash

Last week we explored the parameters of the Biblical prohibition of meat and milk, and how Chazal had extended the prohibition from mammals (the females of which produce milk) to include also birds, and in the process extended the prohibition conceptually from "kid goat in its mother's milk" to "meat and milk."  The Rabbinic extensions, however, are not limited to the type of meat (and milk), but also apply to the very prohibited activity itself.    The Torah only prohibits cooking the two together, and - according to Rabbinic interpretation - eating and benefitted from the product of such cooking.  However, it is Biblically permitted to eat them together if they have not been cooked with each other.   That means that if I have a salami and cheese sandwich, I am not violating a Biblical prohibition.  And if it is a turkey and cheese sandwich, the act is two degrees removed from the Biblical one - (a) the meat is fowl, not from a mammal, and (b) they are only combined through a cold mixture, and not through cooking.

Nevertheless, the Rabbis extended the prohibited acts.  First, they forbade the eating of meat and milk together, even if they were not cooked together - there goes the salami and cheese sandwich!  The also prohibited this even if the meat was from a bird - there goes the turkey and cheese sandwich!  They then prohibited someone from having the two on the table at the same time (Mishna, Hullin, 103b)- no cheese on the table when I am eating my salami or turkey.   Then they said that I have to wait between eating meat and eating dairy products the same amount of time that I would normally wait between meals (Hullin 104b-105a). 

We have progressed by now quite a distance from the original Biblical prohibition.  How are we to understand all of these Rabbinic prohibitions?  As safeguards, they would seem to be quite excessive if the goal is to protect us from violating the Biblical prohibition.   This would seem to violate the general dictum of eyn gozrim gezeirah li'gezairah, we do not make a safeguard to protect a safeguard.  This is a question that the Gemara itself (Hullin 104a) asks in regards to this prohibitions, and the answer seems to be that this rule is not hard and fast, and that there are times when we do make many safeguards (see Tosafot, 104a, s.v. u'Mina). 

However, just saying that there are times when we make multiple safeguards does not answer the question.  Why do we do it here and not elsewhere?  Moreover, some of the parameters just do not make sense.  The Mishna (104b) states that the prohibition of having meat and milk at the same table does not apply to the table upon which one arranges the food, e.g., the countertop, but only to the table from which one eats.  Now, as the Gemara itself notes, it is only possible to transgress the Biblical prohibition if the foods are mixed in a hot vessel that just came off the fire, a kli rishon.  On the table where one eats, this is generally not possible, as even the serving vessels were not on the fire itself, and are considered a "second vessel," a kli sheini.  The only scenario that can lead - at least in this circumstance itself - to a Biblical prohibition is when the two are put on the countertop together, but that is explicitly allowed!

It seems, then, that we are not dealing with a gezeirah, a Rabbinic restriction meant to safeguard the Biblical one.  Rather, as in the case with birds, we are dealing with a Rabbinic extension of the Biblical prohibition.  The Torah prohibited cooking milk and meat together and eating what was cooked together, and the Rabbis prohibited, simply, eating milk and meat  together.   This is not a concern that one will transgress the Torah's prohibition, it is rather an abstraction, broader and, because less nuanced, simpler application of the prohibition.   So, forbidding me to eat a turkey and cheese sandwich is not a  gezeirah li'gezairah, a double safeguard.  Rather, it is the Rabbinic prohibition of eating meat (which includes fowl) and milk together (in any way, even if not jointly cooked). 

This explains also why they only forbade the table that one eats on.  They are not afraid that you will cook them together, or that you will eat what was cooked together, they are rather redefining what "together" means.   Eating meat and milk "together," means (a) even if they have not been cooked together, and are just both in your mouth at the same time, and (b) even if they are just on the table together.  If the cheese is right next to the meat that you are eating, then when you eat that meat, you are eating it "with" cheese.  This explanation gains even more force when we realize, as Meiri (104b) points out, that the tables referred to in the Mishna we individual serving trays (as they ate of off in Roman lands).  To have meat and cheese on the same table then would be equivalent now to having meat and cheese on the same plate.  This is truly eating them "together".

[This approach also explains Rambam's position (Forbidden Foods, 9:3) that one can cook chicken and milk together, although one cannot eat them together.  If the concern was that one might transgress the Biblical prohibition, this makes no sense, for even if eating is more common than cooking, as it is impossible to transgress the Torah's prohibition against eating without first cooking them together.  However, if we are dealing with a Rabbinic redefinition of the prohibition, it is possible to say that because eating is a universal activity that everyone engages in, it was only eating that they redefined.   I can cook chicken (not Biblical meat) and milk, and I can pickle (not Biblical cooking) my meat in a milk solution - when it comes to cooking, we use the Torah's parameters.  However, I cannot eat my turkey (Rabbinic meat) on the same table (or plate) with cheese, because that is eating meat and milk "together."]

It is helpful to consider these two approaches -that the Rabbinic rulings are a form of a safeguard, on the one hand, or that they are a redefinition/expansion of the Biblical prohibition, on the other hand - when considering some of the halakhic parameters of eating at the same table.  Tosafot already (107b, s.v. ki'Eyn) states that if one were to have a divider on the table, with the meat on one side and the milk on the other, that would suffice.  He then states that is would even suffice if the meat and milk eaters had their foods on separate mats.  The question is - what is the salient feature of these dividers that allow meat and milk to be eaten at the same table?  Is it that they form physical obstructions (or at least - in the case of mats - physically different spaces), or is it that they are unusual and serve as visual reminders?   Many of the commentators on Shulkhan Arukh seem to assume the latter, and thus rule that if the divider is usually there - for example, a large candelabrum - then it would not suffice.  On the other hand, if one had a reminder without it being a divider - say the unusual object was on the table by not directly between the two people - that would suffice.   There are even those who take this a step further and suggest that it would suffice if one designated a person to watch him and remind him if he reached for the other food, or who would allow it at a meal with many people, based on the Rabbinic principle that many people will remind one another.   However, there are those who disagree with all of the above, and state that a candelabrum which serves as a physical divider - even if usually there - suffices, and that having people to remind you is not acceptable.  How are we to understand this debate?

It would seem that the issue at stake is whether to allow eating at the same table one has to define it as two separate tables, or whether one has to just ensure that he will not actually eat the meat and milk together.  Those that emphasize a physical separation understand that the goal is to define the one space as separate spaces, the one table as two.  This makes a great deal of sense when you consider that we have translated the Mishna's "table" to be the equivalent of our table, when really it is the equivalent of our plate.  Once we apply it to our large table, we also move back closer to the original meaning, and define circumstances where things can be on the same table, but considered to be at different tables - in essence, to be on the same table, but not on the same plate (poskim do NOT take this so far as to say that separate plates suffice).  However, if the whole issue is that one may accidently eat the meat and milk together, the key is having a reminder - an object or a person - which will prevent this from happening.

Said another way, the question is whether this is a gezeirah, a safeguard against eating the two together, in which case a reminder would be the remedy, or whether this is a Rabbinic redefinition of what it means to eat milk and meat together, in which case only by defining them to be at separate tables, would it not be considered as if they are being eaten together.

Finally, perspective allows us to address a series of questions raised by the commentators of Shulkhan Arukh.  Why, asks the Shach, do we not also forbid eating kosher food at the same table as non-kosher food?   Some poskim have actually extended this Rabbinic concern to such a case, but Shach states that we have never found it expressed other than by basar bi'chalav.   Shach's answer is that we are always wary of non-kosher food and will not come to eat from it accidently.  However, since meat and milk are each permitted separately, we might come to eat from the other and therefore the Rabbis forbade it.   To explain the statement of a Rishon, he also states that it might be that it does apply to chametz on Pesach (we shouldn't eat on a table where others are eating chametz), but that this can be explained on the basis that bread is a staple, so it is more likely that we will forget and eat from the bread (and also, that bread is not forbidden when it is not Pesach).  Thus, it is also not surprising that there are those who extend it to cases when the food is not even on the table, and say that one cannot eat milk on a table that has fat-based oil lamps overhead, lest the fat drip onto the dairy food.   All of these positions - those who extend it to non-kosher meat, and Shach who does not , and those concerned with the fat-oil lamps - assume that the problem is that we will forget, and thus see a reason to be concerned with a similar case of non-kosher meat (although Shach in the end rules that there is no reason to be concerned in that case). 

If we do not see this as a gezeirah, however, the answer is quite simple.  The Rabbis took the Biblical "together" which means "cooked together" and redefined it to mean "eaten together" and even "eaten with both on the same table together."  This is a redefinition, not  a safeguard, and thus is completely irrelevant to the world of non-kosher meat or of chametz, where there is no prohibition regarding eating things together, and equally irrelevant to the case of the lamps, since when the meat is not on the table, it cannot be considered to be eaten together with the milk.

This issue - redefinition or safeguard - needs to be raised as well regarding the waiting period between meat and milk.  We will take up this topic next week.

Happenings at the Yeshiva

In news around the yeshiva, my daily daf yomi, given Sunday-Friday, from 7:30 AM - 8:30 AM (and on Shabbat between Mincha and Maariv) is now live!   People can access the live video feed by clicking here, or by clicking on the link on the Yeshiva's home page.    This is in addition to the audio of the daf, which is available on  the yeshiva's website, as well as as a podcast.    I hope that for those of you interested in the daf yomi, you can take advantage of these shiurim.  Also, please let your friends know of these opportunities to participate in the daf!

Also this week there appeared two new, excellently written articles on the organ donation issue and the statement that I and more than 100 rabbis had signed.  "Rabbis Urge Brain Death Standard for Organ Donors," was the title of the article in the Canadian Jewish News, and the Jewish Star dealt with both the statement and the RCA's position in an article entitled "Is brain death enough? RCA says maybe."

In the yeshiva itself, we were thrilled to welcome Rabbi Chaim Jachter as a guest speaker this Monday.  Rabbi Jachter's head of the halakha department at TABC, and author of Grey Matter, a wonderful series of books on contemporary topics.  Many of Rabbi Jachter's articles, covering a wide range of topics in a clear and concise manner, and quoting all relevant sources, can be found on his website, which is highly recommended to all.   Rabbi Jachter gave a two-hour presentation to first- and second-year students, who are studying Shabbat, on the laws relating to and practical implementation of eruvs in a community.  He also met during lunch with third- and fourth-year students to discuss some of the most common questions in kashrut that a community rav will have to deal with.

On the following day, Tuesday, students began a new student-initiated and led chaburah, seminar, on Jewish thought issues related to kashrut and eating.    This chaburah was the first of a series, which will meet every other week on Mondays (the first one was an exception).  Gabe Greenberg (year 3) was our Nachshon, and volunteered to give the first one.  He spoke on Rav Kook and Eco-Kashrut, beginning with readings from Rav Kook and R. Arthur Waskow, and in particular dealing with the positives and the problematics of a heavily-emphasized focus on Torah values and an urgency regarding in realizing Utopian visions in this world, pointing out that Rav Kook himself cautioned gradualism in regards to these things.  Half the time was given to discussion and debate, which was heated, respectful, and passionate.  It is a great beginning to a process of serious reflection on the themes, values, and implications of the halakhot of kashrut.

Also on Tuesday, we began in my shiur a series of chaburot from students on some of the self-contained basar bi'chalav topics.  The first one was presented by Mordechai Harris and Eytan Yammer (who is now commuting from his congregation in Birmingham, AL - it's great to have him with us again!).   Mordechai and Eytan presented on the topic of two people eating at the same table, one eating meat and the other eating dairy.   On Monday, we will hear from Mishael Zion and Dan Vinik on the topic of the waiting period between meat and milk, and next Tuesday we will hear from Seth Winberg and Dani Passow on the topic of milkhig bread.

We also have two Mazel Tovs and one consolation to offer.  Mazel Tov to Simon (year 3) and Sivan Livson, on their new baby girl, Carmel Yehudit, who was named Monday at a minyan attended by many of the YCT students.  Also, a Mazel Tov to Akiva (YCT 2007) and Michal Herzfeld on the birth of a baby girl!  She'kulkhem tizku li'gadel b'noteikhem li'Torah li'chuapph u'li'ma'asim tovim!

And, finally, our prayers for a nechama go to Sara Tillinger Wolkenfeld, wife of David Wolkenfeld (YCT 2008), whose mother passed away this last Shabbat.   Sara and David serve as the JLIC couple at Princeton, and we wish both of them, and their families, strength during these difficult times.