A Response to a Response – The Article 'What Is Halut'

Tzohar – 5760

In my article What Is 'Halut' ('Tzohar' 2), I argued that the concept of 'halut' denotes a metaphysical halakhic entity, a kind of Platonic idea, which rests upon concrete entities in our world. My central argument was that this is an entity and not an attribute, and therefore the simultaneous existence of contradictory statuses on a person, or on some object, does not necessarily constitute a logical problem.

Rabbi Kehat, in his response ('Tzohar' 4), argued against me that 'halut' is, in his words, 'the stage at which the result takes effect as a consequence of the act.' He then claims that we do not find halakhic statuses that are not juridical, such as 'the status of an etrog,' 'the status of a sukkah,' and the like.

My claim, as stated, was that status is an entity and not an attribute. It is not clear to me what alternative Rabbi Kehat is proposing. 'Halut' is certainly not 'the application of a status,' for if it were, it would be unclear what it is that we are applying in that act of application. According to Rabbi Kehat, one should say 'the application of a rule' and not 'the application of a status.' But if so, then according to him there is no concept of 'halut' in Jewish law at all, only a concept of 'rule' or 'law' (which is an attribute and not an entity, as I argued in my aforementioned article). As for this possibility, go and see what people actually do (go and see what people actually do). Does one really not speak, in the world of yeshivot and study, of an entity called 'halakhic status'?

Beyond that, what about the existence of contradictory statuses? Does Rabbi Kehat dispute that possibility? If not, then he does not explain how he would propose to account for it.

Rabbi Kehat's position implies that the concept of status exists only at the initial moment when the concrete entity acquires halakhic standing. Does he think that the status of being a married woman no longer rests upon the woman even a year after her marriage? Here too, go and see what people actually do (go and see what people actually do).

As for Rabbi Kehat's second claim, my article contains no discussion of the existence of entities that are halakhic rather than juridical statuses, and therefore this point does not touch the heart of the discussion. However, since the matter has come up, let me say a word about it. As Rabbi Kehat correctly inferred from my remarks, in my view there are indeed non-juridical statuses. Every halakhic concept is an instantiation of a halakhic idea, which one may call 'the status of a sukkah' or 'the status of an etrog.'

Since our concern here is empirical, that is, a discussion of the way the term 'halut' is used in the analytical yeshiva world, it is fitting first to offer an empirical justification for my position. R. Chaim, who is undoubtedly one of the founding fathers of the analytical world familiar to us today, uses the term 'halut,' and even the term 'heftza' (=entity), which is even sharper, with respect to halakhic concepts that are entirely non-juridical. 'The heftza of prayer' is a familiar term in his teaching (see his book on Maimonides, Laws of Prayer 10:6), as is 'the heftza of an act of commandment' (Laws of the Passover Offering 5:7). Rabbi Zevin, in his book Ishim VeShitot (in the chapter devoted to R. Chaim),[1] notes this, and also points to the connection between the concept 'the heftza of the thing' and the concept 'the designation of the thing,' which is in fact the concept of 'halut' as I defined it.

Accordingly, it seems that Rabbi Kehat can at most argue against me that the difference between juridical statuses and halakhic statuses is that the former were entrusted to our hands, whereas the latter apparently were not.

If I may venture a guess, Rabbi Kehat means to argue that the term 'status' applies only to halakhic entities that were entrusted to us, that is, juridical entities. In other words, status is indeed an entity and not an attribute, and certainly not an act of application (as explained above). It seems that he intends to claim that only juridical halakhic entities are called, in the jargon of the analytical school, 'statuses.'

Here, as noted, there is no direct contradiction to what I said in the above article, since according to such a position 'halut' is still an entity (and not an attribute or an action). Despite this, I would like to challenge even this softened formulation. The sugya of 'designation counts' points to the possibility of applying a halakhic status that is not juridical (for example, the 'status of a privy,' in the Talmud's terminology in Berakhot 26). The same is true of the sugya of bererah (retroactive clarification), which examines the possibility of retroactively exchanging different statuses on a particular object. The same applies to a stipulation that delays the coming into effect of a status on an object. All of these were also said regarding halakhic concepts that are not specifically juridical (see, for example, the Talmudic Encyclopedia, entries 'Hazmanah' and 'Bererah').

I will demonstrate this specifically with regard to 'the status of a sukkah,' which is one of the examples Rabbi Kehat himself chose in his response. Precisely there it is very easy to show that it has an independent existence beyond the halakhic concept 'sukkah.'[2] I will now present, briefly, two proofs for my claim:

1. The Rema, Orach Chayim 639:7, rules that one who sits in a sukkah while rain is falling (when he is exempt from sitting in the sukkah, because you shall dwell as you ordinarily live ('you shall dwell as you ordinarily live')) is called a fool. Oneg Yom Tov (sec. 49) famously asks: why is he merely called a fool? Seemingly he is a transgressor, for he has violated the prohibition against using, or deriving benefit from, a sukkah (see Beitzah 30a: just as the festival is for the Lord, so too the sukkah is for the Lord ('just as the festival is for the Lord, so too the sukkah is for the Lord')).

R. Elchanan Wasserman explains, in Kovetz Shiurim there (and see also Kehillot Yaakov, Sukkah sec. 7), that when rain is falling this is not a sukkah at all. The physical structure indeed exists, but that structure is not a sukkah. The exemption from sitting in the sukkah is not merely a personal exemption; the object itself has changed in halakhic terms. Thus, argues R. Elchanan, one who sits in the sukkah while rain is falling is not a transgressor, for he is not sitting in a sukkah, but in a 'pergola' (=a canopy).

The halakhic 'sukkah' is not merely a physical structure, even if it is built in accordance with Jewish law down to the last detail. The exact structure is a condition for the designation 'sukkah' to take effect on the structure. The structure without that status is not a halakhic sukkah, but at most a canopy. It seems to me that this example of Rabbi Kehat's itself shows that there is halakhic status even in the non-juridical areas of Jewish law.

Incidentally, according to many commentators, one can make a stipulation concerning sukkah wood (see the Talmudic passage in Beitzah there, and the Rif, Rashi, and the other commentators), and then the status of sukkah, or the sanctity of sukkah wood, will not take effect upon them. We see that, as with any juridical status, one can stipulate regarding the existence of a status, even when it is halakhic and not juridical.

2. In the Talmudic passage in Nedarim 29, Abaye holds that intrinsic sanctity lapses on its own (and this is not the accepted Jewish law). The meaning is that one cannot remove the sanctity of any object without a physical act. According to Abaye, even a stipulation does not help to remove sanctity, since a stipulation too is not an act but speech. Rashba, in the above-mentioned Beitzah passage, challenges Abaye from the Talmud there, which rules that one cannot make a stipulation concerning the wood of the sukkah. Rashba proves from here that intrinsic sanctity does not lapse on its own; that is, it cannot be removed by speech (a stipulation, in this case), contrary to Abaye's opinion.[3]

The question I wish to raise here is how Rashba himself deals with the fact that the sanctity of the sukkah does in fact lapse on its own, and does so immediately at the end of the festival of Sukkot. No one disputes that once the festival has ended, there is no sanctity (by Torah law) on the meticulously valid sukkah standing in my courtyard. Is this not proof that intrinsic sanctity does in fact lapse on its own? Only time has passed, and the sanctity of the sukkah has vanished by itself. This is precisely sanctity lapsing on its own, and there is not even any human stipulation here.

It seems to me that here too we again see that a sukkah is not a physical structure, even if it is validly built according to every detail of Jewish law. After the festival of Sukkot, that structure is nothing more than a canopy. A 'sukkah' is a canopy upon which the status 'sukkah' rests. After the festival, the status 'sukkah' has lapsed from the physical structure, and now there is no sukkah here at all. Since that is so, there is no lapse of sanctity on its own here. A lapse of sanctity means that an object remains as it was while the sanctity departs from it. In the present case, the object itself (or perhaps more accurately: the heftza) has disappeared. The sanctity is eternal, and it is the heftza that has lapsed on its own; therefore Rashba is not troubled by the very fact of sanctity lapsing on its own at the end of the festival.

From these two proofs it emerges clearly that there is a concept of status even with respect to halakhic concepts that are not juridical. Even stipulation applies to them, as does the rule of 'designation' (as mentioned above).

To sum up my remarks, I would say this:

In my previous article I argued that 'halut' is an entity and not an attribute. Up to now I do not see any alternative to this (including in Rabbi Kehat's response article). Here I have added one more point, again contrary to what Rabbi Kehat wrote in his response: all halakhic concepts, including those in the non-juridical realms of Jewish law, have an idea superimposed upon them—or, if you prefer, a 'status.' The concrete concept is an instantiation of the halakhic idea, and generally it is indeed the human being who applies it to the object.

Even if one were to find a halakhic concept whose status is not entrusted to human hands (as with a firstborn animal, dietary prohibitions such as forbidden fat or pork, and the like), it is still reasonable to say that this law too has its own halakhic status; only the ability to apply it is not in our hands. Even in these cases, the meaning of the halakhic concept extends beyond the concrete, real-world concept, in the sense of a lion is crouching upon it ('a lion is crouching upon it').

Rabbi Soloveitchik writes in Halakhic Man that Jewish law is a system of a priori principles through which we contemplate reality. My claim here was that this system is not merely a system of principles of contemplation and analysis, but a system of entities that rests upon reality. One equipped with halakhic lenses can discern the halakhic 'shadow' that overlays concrete reality, the reality visible even to the unaided eye.

[1] And see also Rabbi Zvi Schachter, in his book Nefesh HaRav on Rabbi Soloveitchik, for a similar approach.

[2] Regarding 'designation' in the case of a sukkah, see, for example, Machaneh Ephraim, Laws of Charity sec. 12, and Mishnah Berurah 638:9 and Sha'ar HaTziyun there 11, and more.

[3] Rashba's answer is not relevant here, nor is his problematic position itself, according to which the prohibition against deriving benefit from sukkah wood is a form of 'sanctity'—a position with which most commentators and halakhic decisors disagree.