Friday, September 16, 2011

A Thought on the Parsha

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Ki Tavo opens with two rituals, the bringing of the first fruit, the bikkurim, where one declares his gratitude for God’s goodness, and the dispensing of the tithes at the end of three years where one states that he has dispensed these tithes according to the law.  Both of these rituals consist of the bringing of agricultural gifts and the recital of a declaration.    Given these parallels, it is interesting and initially surprising to note that the Rabbis treated the two declarations quite differently.  First, there is the naming.  One is called a mikra, a recital.  The other is called a viduy, a confessional.  The mishna in Sotah teaches yet another difference:

The following are said in any language: … the viduy of the tithes…
The following are said only in Hebrew: the declaration of bikkurim…
(Mishna Sotah 7:1-2)

While the viduy can be said in any language, the Bikkurim Declaration can only be said in Hebrew.   These two differences parallel one another.  A mikra, a recital, suggests a fixed, formal text, a text that should be said in the official language, Hebrew.  In fact, mikra comes from the same root as kra, a verse, and actually suggests the reading of a verse, which would naturally be in Hebrew.  A viduy, a confessional, on the other hand, suggest a personal declaration, something whose language, if not the very text itself, would not be fixed and would be expected to be in the reciter's native language.  While the text is fixed for viduy as well, the use of any language reflects the more personal nature of this recital.

It seems that there are different types of experiences and different types of declarations.  There are those experiences that are fundamentally private and individual, but that then need to be linked to the larger community.  Then there are experiences that are fundamentally communal, and the challenge is for each individual to find his or her personal connection.  And then there are experiences which are fundamentally personal and should remain personal.

An example of the first type is the feeling of gratitude that one experiences after a year of hard labor in the field has finally produced its first fruit.  Each farmer's struggles and challenges are different from his neighbor's, each one is dealing with different quality and amount of land, different tools and farmhands, different infestations, and with different family dynamics and responsibilities.  The feeling of gratitude here is very personal - it was his sweat and his prayers, with God's help, that finally resulted in these fruit.  Such a person comes to the Temple with this personal connection: "I declare today… that I have come to the land… and now, behold I have brought the first of the fruit which the Lord has given me." (Devarim 26:3 and 10).    The work that this person has to do is to find a way to connect his experience with the larger collective narrative.  His blessing is a result of his hard work and his prayers, but it is also a result of a blessing that God has given, and a relationship that God has with, the entire People.  Hence the first verse ends "… that I have come to the land which the Lord has sworn to our fathers to give to us."  And hence the narrative in the middle starts in the first person singular, but quickly proceeds to the first person plural: "A wandering Armenian was my father… and the Egyptians did evil unto us and afflicted us and placed upon us hard labor.  And we cried out… and God took us out of Egypt… and brought us to this land…" (ibid., verses 5-9).  To the gratitude for God's goodness to the individual has to be added the gratitude for God's goodness to the People.

This same recital, however, also serves the opposite function when it is used in a different context.  For it is this selection of verses that is used as the basis for the mitzvah of relating the story of the Exodus on the first night of Pesach.  The challenge on that night is not to connect the personal to the collective, but the collective to the personal.  That night is devoted to the retelling of the foundational story of the People.  It - unlike the bringing of bikkurim - is done by the entire People at the same time.  And it is a story that did not come from each individual's personal experience, but rather from the past events that occurred to a nation.  The challenge there is to find how to connect this national story to one's own personal narrative.  How does all of this relate to me?   The Torah stresses the importance of giving this story a personal perspective: "And you shall tell your (sing.) child on that day saying, 'It was for this that the Lord acted for me (sing.) when I left Egypt." (Shemot 13:8).   It is for this reason that we drop the personal declaration: "I declare today…" and start rather with our point of departure, the communal story.   However, the mitzvah of this night is to tell the communal story and personalize it:  doresh m'arami oved avi, one expounds from the verse: "A wandering Armenian was my father." (Mishna Pesachim 10:4). The mitzvah here is not to "recite from 'A wandering Armenian" (Mishna Bikkurim 3:6), but to expound.  It is for each individual to discuss and interpret the verses, the story, in a way that makes sense to him or her, in a way that it connects to their own personal narrative.

And then there are times where the experience begins at the personal level and should remain at the personal level.  A confession, a taking stock of oneself and one's actions, is - both in process and substance -unique to each individual.  It is also something that should remain private: "King David said: 'Let not my sins be recorded, as it says, 'Happy is he whose transgression is forgiven, whose sin is covered." (Psalms 32:1)." (Yoma 86b).  Publicizing one's confession risks turning it into an exhibitionist act and a matter of public concern at a time when - both out of respect for the individual and to do the real work that is required - it should remain private and personal.   Of course, one should never fully remove him or herself from the collective.  After the hard work of confessing is done, one returns to acknowledging his or her place among the People and God's relationship with the entire People: "Look down from your holy abode, from the Heaven, and bless your People, Israel, and the land that you have given us..." (Devarim 26:15). 

It is because this experience is personal and private that a person can also take pride in his or her accomplishments: "I have listened to the voice of the Lord, my God.  I have acted according to everything that You have commanded me." (Devarim 26:14).  Why, in fact, is this called a confessional if a person is listing all of the good things he or she has done?  The answer is that the process of confessing, the process of teshuva, does not just consist in our owning up to our sins and shortcomings.  If a person only focuses on the bad, he can become laden with guilt and unable to move on.  A person has to first give him or herself credit and recognition for the good, for the fact that he or she has "done everything (or most of the things) that You have commanded me."  This will give the person the strength to work on his sins and shortcomings, and the encouragement to further develop and act on these strengths in the future.  And if a person is being deeply honest with himself, and therefore prepared to own up to both the good and the bad, then just as the person recognizes that he deserves to be punished for his sins, he is entitled to recognize that he deserves to be rewarded for all of his good deeds: "Look down… and bless your People, Israel."

As we approach the period of saying selichot, where every day we make a recital of viduy, a confessional of our sins, let us take a moment's pause to think about how to make this viduy a truly personal one.  The liturgical viduy is a fixed text, written in Hebrew, written in the collective voice, and listing very generic sins.   While some of our teshuva is a collective experience, perhaps particularly the confessionals that are done in the synagogue and as part of the repetition of the Amidah, let us make sure that we also find the time to do a personal viduy.  Let us take the time to say a viduy in our own language, in the first person singular, listing our specific and particular shortcomings and sins.  But if we are going to do this hard work, let us not forget to also do a viduy of all of our good deeds, our mitzvot, our accomplishments.  By combining these two we will - with God's help - have the strength to work on our shortcomings and the encouragement to build on our strengths.

Shabbat Shalom!

Torah From Our Beit Midrash

The entire chapter of HaSholeach (the fourth chapter of Gittin) is devoted to Rabbinic legislation and institutions enacted for the sake of tikkun ha'olam, "fixing the world."   It is thus worth considering the basis for the rabbinic power to legislate.  What makes rabbinic legislation binding?  While this question is not raised directly in the Talmud, one of the opening sugyot does address an aspect of it.  The first takkana, edict, that is dealt with is one that was instituted to protect a wife who was in the process of being divorced.  The husband, according to law, had the ability to nullify the get or the agent delivering it, even not in the presence of the wife.  This, of course, could lead to cases where a woman would think she was divorced when she was really still married.  To protect the wife, the Rabbis legislated that the husband was not allowed to nullify the get or the agent unless he communicated this directly to the agent or the wife. 

The question that is then raised in the Gemara is: what happens if the husband violates this edict, and nullifies the get anyway?  In such a case, Rebbe [Yehudah HaNasi] states that the nullification is valid.  Rabban Shimon ben Gamliel takes exception to this: "If so, what good is the power of the court?"  (Gittin 33a).  If someone can violate the edict and get away with it, if the edict has no teeth, then what's the point?   Rather, says  Rabban Shimon ben Gamliel, even if the husband does nullify the get, his nullification is meaningless, and the woman who receives the get will be divorced.

We can certainly identify with Rabban Shimon ben Gamliel's position.  Any edict needs teeth, all the more so if it is to protect a woman from potentially disastrous consequences.  However, where do the Rabbis get this power to override an act - the nullification - that is legally binding according to the Torah?  The Gemara asks this question, "How, just because of the concern of the power of the court, could we permit a married woman to remarry?"  The Gemara's answer is that they were able to permit the woman in this case through the vehicle of hafka'at kidushin, annulment of marriages.   What the Gemara seems to be saying is that the vehicle of hafka'at kidushin works within Torah law [we will leave it for another time to discuss here the mechanics of hafka'at kiddushin].  If, however, it were an issue of a straight conflict between Rabbinic legislation and Torah law, the Rabbis would not have the ability to override the Torah law.

This sugya, then, reflects a limit on power of Rabbinic legislation - it cannot override Torah law.  This limitation, however, is question in a sugya in Yevamot (89b-90b).  The Gemara there states that it is clear that Rabbinic law can override Biblical law in two cases: (1) emergency situations, where the Rabbis have to act to protect the community's physical or religious well-being and (2) if the transgression of Biblical law comes about only passively - such as not blowing the shofar when Rosh HaShana falls out on Shabbat.  What is uncertain is whether Rabbinic law can override Biblical law even if it leads to active transgression, bi'kum vi'asey.

Before analyzing the cases where Rabbinic law can override Biblical law, it is worth going back to the more fundamental question - what makes Rabbinic legislation binding in the first place?  Here we find a hint in the Gemara.  The Gemara Shabbat (23a) asks how we can make the blessing over Chanukah lights, "that You have commanded us in the mitzvah...".  Where, asks the Gemara, did God command us in this mitzvah, which we know is only Rabbinic?  The Gemara gives two answers: (1) We are commanded based on the verse: "You shall not waver from the matter that they [the court] tells you to the right or to the left" (Devarim 17:11) and (2) "Ask you father and he will tell you, your elders and they will answer you." (Devarim 32:7).  The first verse seems to be a real Biblical mitzvah to obey the court, whereas the second verse seems to indicate just an accepted practice to listen to them. 

These two opinions are reflected and expanded upon by the Rishonim.  Rambam (Book of Mitzvot, Foundation 1; Positive Mitzvah 174; Laws of Rebels 1:1-2, and 2:5-7; contra Introduction to the Commentary on the Mishna, s.v. "The fourth division") states that the verse "you shall not waver" commands us not only to listen to the Sanhedrin, the High Court, in its role as interpreters of Biblical law, but also in its role as legislators of Rabbinic law.  Ramban (Critique on Book of Mitzvot, Foundation 1) takes strong issue with this.  If this were so, says Ramban, then why are we more lenient with Rabbinic law than with Biblical law - we are lenient in cases of doubt, other factors - such as human dignity, pain, and illness - override Rabbinic law, and one does not get lashes for transgressing Biblical law.  But, according to Rambam, isn't every transgression of a Rabbinic law also a transgression of a Biblical law?  It is thus clear, says Ramban, that Rabbinic law is not obligatory based on the verse "you shall not waver," and that one does not transgress a Biblical commandment when she transgresses a Rabbinic law.

Putting aside Ramban's questions on Rambam's position for the moment, we need to ask - if, indeed, this power is not mandated Biblically, then why must we obey Rabbinic legislation?  Ramban himself does not answer this question, but 3 answers are possible:
  1. There is no explicit Biblical mitzvah or prohibition regarding rabbinic legislation, but we can infer from the Torah that we are required to listen to the Rabbis in this capacity as well.  It is because these laws are not backed an explicit mitzvah that they have the leniencies that they do.  Nevertheless, the Torah is what backs and empowers the Rabbis in this capacity. This is the approach taken by Rav Elchanan Wasserman in his Kuntrus Divrei Sofrim, 1:12-18 and 29-33).  See there how he attempts to demonstrate that this obligation can be found in the Torah.
  2. Their power derives from the people.  Because the Jewish People have recognized the Rabbis as religious leaders, and submitted to their authority in areas of legislation, they have implicitly empowered the Rabbis to legislate for them.  This is a type of a social-contract model, and reflected in the statement in the Gemara that members of a guild or townspeople can empower certain people and impose laws on the entire community (Tosefta Baba Batra 8:2).  We would have to assume that this power, when applied to religious matters, has religious weight and not only political weight, so that when one violates a Rabbinic law, one does not only break a law, but also transgresses a religious restriction.  This approach is taken by R. Yisrael Meir Lau, in his responsa Yachel Yisrael, no. 18.
  3. A position between the first two: Rabbinic law is part and parcel of a traditional, religious society.  It is not mandated by the Torah, but it is implicit in a traditional religion, that it will follow its traditions, and the guidelines set by its religious leaders.  This, I believe, is indicated by the verse: "Ask ... your elders and they will tell you."  We follow the Rabbis because that's what it means to be part of traditional, Rabbinic Judaism.  To violate a Rabbinic ruling, then, is to step outside of the norms and boundaries of one's religious community, and such a violation has religious valence - is a transgression.  [It is worth noting that a similar verse is quoted in the Gemara Pesachim (50b) to explain the reason why we must keep minhagim, customs: "Listen my son to the admonitions of your father and do not abandon the teaching of your mother." (Mishlei 1:8).  There the emphasis is traditions handed down by one's parents, whereas here the emphasis is rulings issued by one's religious leaders ("your elders"), but the point is the same - as members of a religious community, we are bound by its traditions and its norms.]
It is worth noting that even Rambam would have to use one of the approaches above, or a variation thereof, to explain why we are bound to follow the post-Sanhedrin Rabbis.  Given that most Rabbinic legislation came after the period of the Sanhedrin, the Biblical mitzvah can no longer be looked to as the backing for this legislation.  [See, however, Chinukh 495, who understands that "you shall not waver" applies even to later Rabbinic authorities].  There is reason to believe that Rambam would endorse the second explanation, that of empowerment from the People, to explain the nature of Rabbinic authority in this period, because he states in his introduction to Yad HaCahazaka that the reason that we are bound to follow the Babylonian Talmud is because it was accepted by all the Jewish People.  This fact, apparently, makes the Talmud binding, both in its interpretive and in its legislative capacity.

Having explored the basis for the Rabbinic power of legislation, let us return to the question of whether a Rabbinic ruling can override a Biblical mitzvah.  It would seem that this would depend on where this power comes from.  If we are mandated by the Torah to follow the Rabbis, then it is possible that in certain circumstances we would be required -by the Torah - to follow the Rabbis rulings over those that are explicit in the Torah.  This would be especially true in cases of emergency, or when Torah law was only transgressed passively.  If, however, the Rabbis power comes from the people or from the nature of a religious society (and, even perhaps, if it comes from the Torah but not explicitly so), it is difficult to understand how it could ever take precedence over a Biblical law. 

There are, I believe, two ways of explaining how, notwithstanding the above, Rabbinic law could override.  One is to build on the case of "emergency powers."  The Gemara in Yevamot shows that this is an accepted power that the Rabbis have, and it parallels the role of a prophet, another type of religious leader.  While we must also ask how we know that this power exists, if we accept that it is a power of the Rabbis, then their ability to legislate in a way that leads to passive transgression of Biblical law can also be seen as a form of emergency powers.  Since all Rabbinic legislation is to strengthen the religion, then we can argue that emergency powers can be exercised to protect the religion and can allow for active violation on a one-time basis, and for ongoing violation, as long as it comes about passively.  This approach is indicated by a number of Rishonim in Yevamot (Ramban, Rashba, Ritva on 90b), and in other poskim (Semag Positive Commandment 212, based on Yeraim; Beit Yosef Orah Hayyim 418, end).  The problem with this, however, is that it is a little incongruous to think that all Rabbinic legislation that overrides Biblical law - including, say, not blowing the shofar when Rosh HaShana falls on Shabbat - is based on the concept of "emergency powers."  And, as a student pointed out to me, we know how the concept of emergency powers can be applied beyond recognizable boundaries, as is evidenced by the case of Egypt, which has been under emergency law for almost three decades.

The other way to approach this is to consider parallels where Biblical law can be overridden in a passive manner.  The most obvious parallel is that of human dignity.  Human dignity is understood to be a Biblical concept, and it has the power to allow for the passive transgression of Biblical law (Berakhot 19b).  The principle seems to be: a halakhically-defined Torah value can override Biblical law, at least passively.  Now, this does not apply to anything we call a Torah value.  It has to be halakhically defined and acknowledged to have this power.   Another example of this may be that of tza'ar ba'alei chaim, which, once recognized by the Gemara to be a Torah value with halakhic weight, can also override certain restrictions.  If this is correct, then, it is possible that Rabbinic legislation is an embodiment of defined Torah values.  First, the value of respecting Rabbinic authority is implicit in every act of Rabbinic legislation.  Beyond that, the Rabbis legislate to uphold Torah values.  As such, every act of legislation is an implicit statement that a Torah value here is at stake, and if the legislation is not followed, may be compromised.  As such, every legislation recognizes and gives weight to a relevant Torah value applied in a given situation.  As such, it is this recognized Torah value that allows and even mandates us to set aside a Biblical law, as long as it will only be transgressed passively.

We have explored some of the foundations of the Rabbinic power to legislate.  More can be said about when they choose to use their power to override Biblical law, and under what parameters will they do so.  It goes without saying that one cannot choose on his or her own to decide that a Rabbinic law or Torah value has such power.  We will only act in such a way when there is explicit guidance to do so.  But when we are mandated to follow the Rabbis even against Torah law, it is these principles and values which are at play.

Happenings at the Yeshiva

In addition to the intense learning of all the students, we have begun our Lishma - Community Kollel program led by Rabbi Nati Helfgot.  This program is open to anyone from the larger community and takes place on Tuesdays and Thursdays from 9:00 AM -12:00 PM.  The first two hours are devoted to Gemara learning  in chavruta followed by a shiur, and the last hour is a shiur on Tanakh or on Contemporary Poskim.  We have started with 5 participants, and we know that the numbers will continue to grow.  It is so wonderful having the presence of these community members in our beit midrash and having their voices added to the kol Torah of the yeshiva.

This week Rav Nati also gave his first class on The Structure and Meaning of the Yamim Noraim Liturgy.  We also look forward to his shiur next Friday morning and the Structure and Meaning of the Selichot. 

As part of our Elul work and preparing for Rosh HaShana and Yom Kippur, we were thrilled to once again bring in Merle Feld this last Wednesday to lead a session on Spiritual Writing as a Preparation for the Yamim Noraim.   All students participated in this session, and almost unanimously they found it to be a helpful practice to get in touch with their inner thoughts and spiritual life and to grow during this time of year. 

This Wednesday also saw the second week of the Educator Program classes.  Students in this track began their structured internships this last Monday, with three of them working at Heschel and two at SAR under the mentorship of expert teachers.  This Wednesday night, in addition to a class on pedagogy, students participated in a field-work seminar sharing and reflecting on the observations that they made during their internship work.   We have an amazing team of teachers and supervisors for this program - Daniel Held, Ruth Fagen, and Molly Pollak - and we know that students will emerge fully prepared to teach in our day school and on college campuses and the highest level.

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.

Happenings at the Yeshiva

We began this week by welcoming our new class of students.  This year we are blessed to have 12 new students studying here, and two in Israel.  We welcome Raif Melhado, David Bookbinder, Joel Dinin, Ben Ricciardi, Daniel Silverstein, Ari Weber, Samuel Klein, Haggai Resnikof, Koby Geller, and Jon Leener to our student body.  It is truly an amazing group of students, each one bringing his own unique talents and passions to his learning, the yeshiva, and to growing to becoming a rabbi to serve Klal Yisrael.,  Many come here having already made their marks in the Jewish and larger community in a lay capacity - running a Hillel, creating and running programs of interfaith understanding, Jewish rappers and poets, and serious learners and scholars.  We also welcome (Dr.) Ben Elton, who is in the States on a post-doc from Cambridge and will be learning with us in the mornings, and Matt Levee, who is learning with us for Elul zman, and is on his way to spending the rest of year learning in Israel.   We are looking forward to a year of learning from and being inspired by one another, a year of intense Talmud Torah and of meaningful religious growth.

This Elul zman we are learning the fourth chapter of Gittin in the morning - HaSholeach.  This chapter (and the following one) are devoted to a range of different takanot, or edicts/measures that Chazal instituted for the sake of tikkun ha'olam, literally, fixing the world.  This chapter covers a wide range of topics - from annulling a get and annulling marriages, to the erasing of debts during the Shmita year and the work-around of Hillel known as the pruzbol, to the status of slaves and the redeeming of captives and of stolen sifrei Torah.    Our learning opened with a shiur klali that I gave on the concept of tikkun olam, which has become a ubiquitous phrase in Jewish social action.  We explored what the meaning and function of this phrase was in the mishna - what common denominator could be identified in the takanot that would explain this characterization, and, further, whether this categorization served a particular purpose or function in the mishna.

The first two afternoons this week were devoted to orientation and chevre building exercises, and we began our regular afternoon classes at the end of Wednesday afternoon.  Dr. Marc Shapiro gave his first class on Great Sages of the 20th Century on Wednesday.  On Thursday, Dr. Zvi Zohar, a renowned visiting scholar from Israel, gave his first class on Sephardi Poskim and Responsa, and Rabbi Shmuel Hain gave a class on Preparing and Writing Shabbat Shuva sermons.  

Finally, on a personal note, yesterday, Thursday, was my mother's yahrtzeit, Annette Linzer, Chana bat Mordechai Eliezer, zikhrona li'vracha.  This morning I will be giving a shiur in her memory on the topic of "Social Justice for Whom: Priorities and Circles of Responsibility."   On Thursday, the day of yahrtzeit itself, I spoke after mincha, sharing some reflections on the parsha.  I noted the strong disciplinarian approach of the parents in the case of the rebellious son, and spoke about how my mother embodied the opposite - someone who embraced not only her family, but everyone in the community, friends and strangers alike, with caring, nurturing, and welcoming, so that each person knew they were loved and cared for.  And this was a caring that was extended even to those who were no longer living.  One of my most vivid memories is her getting up at all hours of the night to do a tahara or to arrange a tahara, toiling into 2:00 or 3:00 AM, because other people needed her help.  May her memory be for a blessing.