Disputes: History and Essence – Rabbi Michael Abraham – Lesson 7

[Rabbi Michael Abraham] Is there Pesachim there now in the yeshiva, in the kollel? Yes.

[Speaker B] What, can you get those books, yes?

[Speaker C] They’re on sale now.

[Speaker B] No, but where do they print them?

[Rabbi Michael Abraham] Or can you get them? I still have some; I brought a few home, they’re in my car.

[Speaker B] But it’s Beit El publishing, I think.

[Rabbi Michael Abraham] No, no, not from Beit El, there is… it could be in Beit El too, but I don’t know. What, it’s… is it the Wiz’s books? This is the third, quarter of the third. Quarter of the third, right, quarter half quarter of the third.

[Speaker C] So there’s a fourth one, that’s on law. Fine.

[Rabbi Michael Abraham] There’s some sort of supplement still, it’s not really connected to our topic, but it was originally planned to be on Holocaust Remembrance Day. But since we already touched on it last time—I spoke about… I’ll just set the context—I spoke about the question of how disputes arise. And I said that disputes are the product of the circumstances, conceptions, influences of those who disagree, of the sages who disagree. And from there I moved on to talk a bit about the significance of the influence of circumstances and environment on ruling and on interpretation. I said that in the end there are those who see this negatively from both directions. Those who criticize the reliability of Jewish law or the authority of the decisors say that basically we see that they’re influenced, and each one does what he is basically programmed, let’s call it, to do. And the defenders say, what are you talking about—they’re ministering angels and they aren’t influenced at all by circumstances. What both sides share is the assumption that when there is influence from circumstances, that somehow disqualifies the result. What I argued is that this is not true. A person is a reflection of the landscape of his birthplace, and he is the sum total of the… also the sum total of all the influences acting on him, and his inclinations, and his worldviews, and his assumptions, and that’s perfectly fine. Meaning, on the principled level, the fact that Jewish law is also a product of influences and not only of some detached, angelic judgment—I don’t know what to call it—that is perfectly fine. The Torah was not given to ministering angels. That’s one side of it. On the other hand, near the end—not at the end, one before the end—I spoke about the… about the fact that for me it doesn’t matter how the circumstances gave rise to the result. Because if you take that conception all the way—the idea that circumstances generate the result—then it turns out there are no halakhic disputes at all. I spoke about the dispute between Tosafot and Maimonides and the sages of Spain in connection with sanctification of God’s name, and people attribute it to the fact that they were in the midst of the Crusades and there was pressure and they needed to fortify the walls, so to speak, to defend against external threats, and therefore they were very stringent in the laws of sanctification of God’s name, whereas the sages of Spain were more relaxed. And assuming that’s true, and it sounds very plausible, I argued that that’s perfectly fine. It’s perfectly fine, but on the other hand I don’t relate to that when I’m doing the halakhic discussion. When I’m doing the halakhic discussion, for me this is what is called the context of discovery in philosophy of science, and I’m dealing with the context of justification. Meaning, once Tosafot created their own position and Maimonides created his, now I discuss those positions as such. I don’t care where they came from or how they were born. And not because they weren’t born out of circumstances—they were also born because of circumstances—but that doesn’t matter. The circumstances are only the context within which that method was created. That’s the context of discovery; that’s how they discovered that method. But once they discovered it, for me it is a halakhic method, and I discuss it as though Tosafot and Maimonides are sitting with me around a round table, and let’s see who is more plausible and who is less plausible and who stands the test of the Talmudic passages. And I rule as I would in any other topic. Whereas from the extreme scholarly perspective it should come out that there is really no disagreement at all. If I today had to decide what to do—whether to follow Tosafot or Maimonides—apparently what I should do is examine the circumstances in which I operate. If they are similar to those of Tosafot, then I should do what they said, because… because even Tosafot, if they had lived there, would really have ruled like Maimonides. And that completely empties the differences of content and leaves Jewish law as basically one universal law that simply changes according to circumstances, but with no room for different positions. Whereas the accepted approach in traditional yeshiva-style analytic halakhic thinking is that there are disputes. And those disputes have meaning, and the fact that they arose in different circumstances is true—not like the apologists who say it isn’t. It’s true, but it’s not important, because the circumstances helped this thing come into being, but now it stands on its own. I gave examples of this from Gilat’s book, with the Sabbatical year in our time being rabbinic and all kinds of other things like that, where often circumstances can give rise to a result, but once they have produced the result, what stands before me is a halakhic method, and now I discuss it as I discuss anything else, detached from the circumstances. This reminds me that last Sabbath they announced some kind of Sabbath of… talks, I don’t remember what, something with women, women’s talks? All over the country? Yes. So over by us in Lod I heard some class by a woman, and she spoke about Parashat Emor, so they talked about priests with physical defects. And the question was how, what does this mean for us today, when we don’t discriminate against people with disabilities, and how can it be that they aren’t given a role in the Temple—that was then—but also in the synagogue, the priestly blessing and all kinds of things of that sort. Fine, she spoke about various aspects of the matter. The background to it was—afterward I heard that elsewhere too they apparently spoke about the same thing with the same sources, apparently they all equipped themselves from the same place with some packet of sources. In any case, the context in which this came up—afterward someone showed me, sent me two files—there had been a controversy. Rabbi Beni Lau wrote some article about this already years ago. He wrote some article about this, saying this can’t be, it can’t be that we discriminate against people with disabilities, and all kinds of things of that sort. And Rabbi Lichtenstein was very angry—his rabbi, he had studied under him. He was very angry with him and said, what do you mean? This is Jewish law. What do you mean it can’t be? You are obligated to Jewish law, and this is what Jewish law says. And that was basically the context out of which this whole thing emerged. Now when you look at this, it’s exactly—and I was reminded of it because it’s exactly what we’re talking about here—because that argument could have been raised in two ways. And I’ve spoken about this before in several contexts. I once wrote an article about the status of the convert in Jewish law. And I wrote there that basically, after all, it is forbidden to appoint a convert to any position of authority in Israel. That’s from the law of the Talmud, and that is how all the decisors rule. Not a king—not even a distributor of water; in other words, not even a public official responsible for distributing water or something like that. It sounds problematic, certainly to modern ears, and in my opinion actually even in their time it should have sounded problematic. So I wrote an article in which I showed that this law—and there are hints to this from Maimonides and from the Talmud—that this law is the result of an unenlightened attitude toward converts. A socially unenlightened attitude toward converts. Meaning, since people tended to look down on a convert, to remind him of his origins, where he came from—after all, even King David and Ruth, and there are Talmudic passages about this, Rashi, and various places—this was very common then. Not that Jewish law encourages it—on the contrary, it says “do not wrong the convert”; you’re forbidden to do that, forbidden to remind a convert of his past. But that is indeed how the world behaved. The Torah did not prohibit it for nothing, because apparently it really was a common practice at the time. And because that was so, what I argued is that the prohibition on appointing a convert to positions of authority is functional. In other words, he simply won’t succeed in carrying out his role. People won’t listen to him. He has no authority. In the eyes of the public he is an inferior figure. But if that’s really the case, then in a place where society is ordered properly and people relate to a convert as they should—as one of us, and even more so, since the Torah imposes all sorts of obligations even beyond what exists with an ordinary Jew—in such a place all these prohibitions fall away. And in such a place there is no problem at all appointing him. Now I sent that article to Techumin. They agreed with all my arguments, but they didn’t agree to publish it. They didn’t agree to publish it because they were afraid it would bring the problem to the surface. Meaning, people would see that Jewish law actually discriminates against converts, and either they’ll buy the explanations or they won’t buy the explanations, but leave it alone—don’t awaken this, don’t stir people up. I said to them, listen, you’re living in the nineteenth century. This thing is going to come up. If not now, then in another two weeks. It’ll come up. Now when it comes up in another two weeks—parenthetically, this isn’t connected to the point—it’ll come up in another two weeks. And then you’ll write articles explaining why actually it isn’t relevant, and nobody will buy it because it sounds apologetic. Instead, put the matter on the table—put the promissory note and its cancellation side by side. In other words, raise the problem honestly and present the evidence, and bring proof that this is so. It’s not just some apologetic argument. Bring proof that this is so, and show that it isn’t really a problem. Much more sensible. They weren’t convinced and they didn’t publish it. In the end I published it elsewhere. But the point is that this is seemingly a very similar argument to what we’re saying here about people with physical defects. Only one point is very important to notice: you have to substantiate the claim that the prohibitions concerning people with physical defects really stemmed in the first place from some social status or another. If you can show that, and their social status today is different, then you can argue for change. And I think Rabbi Lichtenstein would have said something against that, would have argued, but would not have seen it as illegitimate. In other words, you can argue about the evidence—whether it’s good evidence or not, right? But the point is that the way Beni Lau presented it wasn’t like that. He argued that it just doesn’t fit—that today we can’t discriminate against people with physical defects. That’s an extra-halakhic claim. Because who says Jewish law, first of all who says Jewish law discriminates against people with physical defects? Maybe there are other reasons. Who says Jewish law—you haven’t shown that Jewish law’s stance toward people with physical defects stems from something that no longer exists today. So what are you saying? That Jewish law says this, but it can’t be that we should observe it because today it sounds bad? That’s what Rabbi Lichtenstein protested: what do you mean? If that’s what Jewish law says, then that’s what it says. But if you’re making the kind of argument I made there regarding converts, what’s the problem? That’s a completely legitimate argument. Again, you can argue about the evidence perhaps, but you can’t argue about the legitimacy of that form of argument. It’s an internal halakhic argument, not an extra-halakhic one. You’re arguing within Jewish law that this is what—the opposite, I say that someone who doesn’t do this is a halakhic offender. Not a moral, ethical, human offender the way people think today, but a halakhic offender, because Jewish law itself tells us that this is how we are supposed to behave. And he argued that in fact you are observing Jewish law, only you are a moral or social offender or desecrating God’s name—they talk about it as a desecration of God’s name, never mind. That’s an extra-halakhic argument. In extreme cases, by the way, even that has a place—desecration of God’s name and so on. Sometimes there is room to change the law because of desecration of God’s name. Fine, that can be true. In this context, in my opinion, it isn’t. But it can be true. Those are really extreme cases. In this context I don’t think it’s relevant, so as an extra-halakhic argument it isn’t relevant. But here, if you raise an internal halakhic argument, that’s perfectly fine. Okay? And what does that actually mean? It means, going back to our topic, that Jewish law is indeed a product of circumstances. But in this case it’s not that the circumstances generated the law; rather, in those circumstances that really was the correct law, and in today’s circumstances, because it was a function of the circumstances, today it is different. Here I actually adopt the scholarly conception. After all, what do scholars say? If you live in the circumstances of—scholars will say—if you live in the circumstances of France during the Crusades, then rule like Tosafot, and if you live in circumstances like those in Spain, rule like Maimonides. That’s basically what I’m saying here. Only here I argue that I’m not doing it merely because of the context of discovery. I’m doing it because of the context of justification. Meaning, I claim that in halakhic discourse I can show—or with halakhic evidence—that this really is a law stated about certain circumstances, and not merely a law created because of the circumstances. The claim that the law was created because of the circumstances is not relevant to halakhic discussion. But the claim that the law speaks specifically about such and such circumstances—if you can show that—that is a completely halakhic argument. And here the circumstances do enter into the halakhic discussion. And that is exactly what we saw in the point we discussed last time. Last time what I said was that the halakhic ruling in the Holocaust—in fact I argued that it really was the correct Jewish law for those extreme circumstances. And of course in different circumstances it’s not relevant. There, in that context, two things happened, really. I said this last time as well. On the one hand, the circumstances gave rise to a halakhic method that had not existed until then—say, what Rabbi Gibraltar said there about monetary law in the ghetto, that there is no ownership at all in the ghetto, and so on and so forth. So I say that two things happened there. On the one hand, the circumstances gave rise to a halakhic method. Someone who didn’t live in those extreme circumstances would never have imagined that this is what Jewish law says about such circumstances. If you don’t live there, you don’t examine Jewish law under such circumstances. You don’t understand what such circumstances mean, so it won’t occur to you that there is such a thing, and therefore you won’t examine it and you won’t find that law. In that sense, the circumstances gave rise to Rabbi Gibraltar’s halakhic method. But on the other hand, that is also—this is one aspect. In that sense I don’t care, because what gave rise to the method is not what interests me. But on the other hand, obviously what he says is true and valid for those circumstances, and in that sense it is relevant. And I claim that there it should indeed enter the Shulchan Arukh. What he said should be put into the Shulchan Arukh. Because now the Shulchan Arukh should state: under these extreme circumstances, the law is such and such. And Choshen Mishpat—it isn’t written, there is no law of rebellion…

[Speaker B] And what you’re claiming applies even in Torah-level law? Meaning, people with physical defects, say, that’s a Torah-level law, unlike converts.

[Rabbi Michael Abraham] No, no—even a convert—

[Speaker B] A convert is a

[Rabbi Michael Abraham] Torah-level law.

[Speaker D] And you quote the

[Speaker B] the convert, that one may not appoint him

[Rabbi Michael Abraham] as king: “You shall surely place over yourself a king from among your brothers”—your brothers and not a convert. And from the law of kingship they learn all the rest.

[Speaker B] After all, they learn that the king is from the House of David, but no, no, not from the House of David—the House of David is another passage. It’s like Nachmanides in Parashat Vayechi, where he says there is

[Rabbi Michael Abraham] a prohibition on appointing priests as kings in Jerusalem. There is a prohibition—“the scepter shall not depart from Judah”—so he says there is a prohibition on appointing priests as kings, and that was the sin of the Hasmoneans, that they appointed themselves kings. What’s the novelty? After all, anyone not from the House of David—priests are from the tribe of Levi—anyone not from the House of David is forbidden. So he said no, it’s two prohibitions. If you appoint a Hasmonean, a priest, to be king, you have violated two prohibitions. First, he is not from the House of David—which Nachmanides actually claims is not a prohibition at all, but only a matter of violating the patriarch’s testament, because Jacob promised the kingship: “the scepter shall not depart from Judah.” From the wording of Nachmanides it sounds as though this is not a prohibition; it’s just that one has to obey the testament of Jacob our forefather. And besides that—and this really is a prohibition, learned from some juxtaposition in Deuteronomy—there is a prohibition on appointing priests as kings. Meaning, you violate two prohibitions if you appoint a priest. If you appoint someone from the tribe of Zebulun, you violated the prohibition that he isn’t from the House of David. If you appoint someone from the tribe of Levi, you violated two prohibitions. So here too, when you appoint a convert as king, aside from the prohibition that he isn’t from the House of David, you also violate the prohibition that he is a convert. Beyond that, what about a king of the Kingdom of Israel, not the Kingdom of Judah? There the kings are not from the House of David, and there too you would still violate this prohibition. There too it is forbidden to appoint a convert.

[Speaker B] So if you enter the realm of Torah-level law, and you claim that this exists there too, aren’t you entering into the dispute of Rabbi Shimon and… do we interpret the rationale of the verse?

[Rabbi Michael Abraham] And that’s a difficult question. That’s a difficult question. Seemingly here we are interpreting the rationale of the verse, and I’ll answer you the way they answer in yeshivas: this is a definition, not a reason. And the question is: what distinguishes a definition from a reason? That’s the million-dollar question. What distinguishes a definition from a reason? I am basically claiming that I am not entering into the reason for the law, why the law is like this. I’m speaking about the definition of the law. What does the law say? It says that in these circumstances it is like this, and in those circumstances it is like that. What’s the reason? I don’t know, go ask. Of course that definition is derived from the reason, and every place where people say “this is a definition, not a reason,” you always… Take the Rif at the beginning of Bava Kamma. The Rif explains that the reason tooth and foot are exempt in the public domain—and afterward Maimonides and the Rif… tooth and foot are exempt in the public domain because it is the normal way of people to walk in the public domain with their animals, and someone who places something there should protect his own property, because he knows that people walk in the public domain. And the practical difference is in the case of a long plank lying in the public domain with its end in the private domain, and the animal walked in the public domain and did damage in the private domain. He argues that it will still be exempt. Why? Because in the end the animal walked in the public domain, and it had the right to walk there, so I am exempt.

[Speaker D] But according to the reason it doesn’t work out. What? According to the reason it doesn’t work out. Why? Because the whole issue in the reason is only in the public domain maybe?

[Rabbi Michael Abraham] But here you’re in the private domain.

[Speaker D] Ah, so it depends on which

[Rabbi Michael Abraham] side of the coin you’re looking at. Exactly. So I’m saying, it depends whether it’s a definition or a reason. From the standpoint of the person walking with the animal, he was fine—what do you want from him? From the standpoint of the owner of the produce, how can he protect it? You tell him, protect it yourself. Fine, so these really are different formulations. Between Maimonides and the Rif there are different formulations of this suggestion. Tosafot testifies to this; it’s a dispute between Tosafot and the Rif. One second—so I just want to say that there too, what do you mean, the Rif is interpreting the rationale of the verse? The Maharshal indeed comments on him: the Rif interprets the rationale of the verse? What did you say? The Torah says exempt in the public domain—tooth and foot in the public domain are exempt—so why are you interpreting the rationale of the verse? So they answer in yeshivas: no, this is a definition, not a reason. The definition is that a person is allowed to walk in the public domain. Fine, but that definition is derived from a reason. Now I’ll just make one remark—this whole issue of ta’ama dikra is a subject in itself, I’m not going to get into it now; it’s a topic for several lectures on its own. We talked about it once, maybe we’ll talk about it again sometime. There is an issue… yes, we’ll talk about that too sometime. So the claim… yes, Chaim says that they ask about the what and not the why. There’s no such thing—that’s nonsense. There is no what without a why. The what is derived from the why. How do you know the what? You know the what because you understand the why. Okay? But one important point must be known. When we learn it from the plain meaning of the verse, then it really is a difficult question. But if we learn it from exegesis, then no. There is no question of ta’ama dikra at all in exegesis. Why not? For two reasons. Once I thought of one reason; now I read in a new book by Rabbi Soloveitchik that he gives another interesting reason.

[Speaker D] It depends what kind of exegesis—if it’s an exegesis…

[Rabbi Michael Abraham] and all his students say that it’s possible. You just need some kind of hint from the tradition. There’s a lot of evidence for this in the Talmud; there are disputes about gezerah shavah. How does that happen? Nachmanides already comments on this. Look in the Talmudic Encyclopedia under the entry gezerah shavah; he explains there that even gezerah shavah is something a person can derive on his own, you just need some kind of support. There’s some tradition saying that between these two words one makes a gezerah shavah, or that this Jewish law was derived from a gezerah shavah and you’re trying to figure out from where, or that you need some help, because otherwise you really can do lots of baseless things. In any case, for our purposes, what I want to say is that if you learn something from a homiletic derivation, then the question of the rationale of the verse doesn’t exist. Why not? Two reasons. First, the question of the rationale of the verse comes up where you want to base the law only on the reason. No—we don’t derive from the rationale of the verse; we look at what’s written, not why, or we don’t ask the question of why—what in modern law today is called purposive interpretation. But where you have some textual aid, you manage to show it through interpretation of the verse or through a derivation from the verse, then you’re not relying on the reason. You have textual support; the reason only comes to reinforce or support, but in the end you’re not relying only on the reason. Rather, you have support in the wording of the verse or in some surplus expression that is interpreted, or something like that. That doesn’t belong to deriving from the rationale of the verse. And Shmuel Ariel shows this there in his new book very nicely. I once thought of it in a somewhat different formulation—it’s related, but a bit different—and he actually talks about that there too, if you want. An excellent book, by the way, I highly recommend it, Planted Among Them, it came out not long ago. The other formulation basically says that in any derivation, the reason is always involved. There is no derivation without a reason; there is not a single derivation in the world that was made without resorting to reason. “The Lord your God shall you fear,” okay? So the word “et” comes to include. Include what? Clouds? Chairs? Doves? What does it include? I don’t know; the verse doesn’t say what. You use reasoning; you say: what does this come to include? The most plausible—or the least implausible—is Torah scholars, right? Or a gezerah shavah, “lah-lah” from woman. There’s a gezerah shavah, now go make a gezerah shavah. Fine, so let’s write now that a woman is like a slave, where “lah” is written. Or you could enslave the woman like the slave; she is her husband’s property. But that’s not correct halakhically. Why? Because we use our heads and ask ourselves what really is similar between a slave and a woman, or what really can be compared between a slave and a woman, and regarding that we apply the gezerah shavah. Regarding something else we don’t apply it, even though in gezerah shavah there’s even a rule that a gezerah shavah is not applied by halves. There’s a dispute between Rashbam and Tosafot what “by halves” means. Whether it means from A to B but not from B to A, or whether all the laws of A need to transfer to B and not only part of A’s laws transfer to B. I’m speaking about the second interpretation, the more accepted one. In short, there is no derivation in the world—the hermeneutic principles are always some textual trigger to make a derivation. But what to do with that trigger is always a matter of reasoning. When you compare two things, in what respect do you compare them? When you include something, what do you include? That’s always open. How do you decide? By reasoning, right? Where I derive a derivation, then there is no question of the rationale of the verse. Say, “From among your brethren you shall set a king over yourself”—here it’s an interesting question whether this comes from the meaning of “your brethren,” meaning your brethren and not a convert, or whether it’s a derivation. “Your brethren and not a convert”—it could be that only the derivation says “your brethren” comes to exclude the convert because there was some reasoning here to make it apply to an ordinary Jew and not a convert. For example, disqualifying women from testimony: “And the two men who have the dispute shall stand before the Lord”—that’s in tractate Shevuot. “And the two men who have the dispute shall stand before the Lord”—men and not women. You tear your hair out when you see this thing. The Torah is full of references to men, and in Shevuot it says that a woman is like a man regarding all punishments in the Torah. The Torah speaks in ordinary human language; it spoke about men but meant women too. What does “men and not women” mean? It’s obvious that the Sages had some reasoning that they thought women should be disqualified from testimony, and therefore they derived “men and not women.” And this may be stronger than what I said before: without the reasoning they would derive nothing. “The Lord your God shall you fear”—you have to include something, and the reasoning tells you what to include. Here I think they wouldn’t have derived anything at all without the reasoning, because this derivation is completely far-fetched in many respects—“and the two men who have the dispute shall stand,” it sounds extremely strange. But this—I’m only saying that in derivations… But what was the reasoning? The reasoning was that women are not supposed to testify: “the king’s daughter is all glorious within,” women are light-minded, I don’t know, all kinds of things like that. Of course, now one can discuss what happens today when that has changed, and how one should expand them. Fine—if one needs to discuss it and really see, and be precise. What exactly are the reasons, and the Talmud talks a bit about this too, whether women really are light-minded or not light-minded; the Talmud itself talks about this whole issue. In any case, the point is that when you talk about derivations, then there is no question of the rationale of the verse—I’m returning to your question. There is no question of the rationale of the verse because in derivations the derivations are always based on some reason, so now if it’s based on that reason, then let’s see where the reason applies and where it doesn’t. When we say we do not derive from the rationale of the verse, that is about laws written in the Torah, about interpretation of the plain meaning, not about derivations, not about things where we have textual support for that halakhic result. Meaning? I didn’t understand. No—if there is a different interpretation, say, “from your brother you may not take interest,” say, “you shall not take a widow’s garment as collateral,” okay? It says in the verse: “you shall not take a widow’s garment as collateral.” Now they ask—Rabbi Shimon and Rabbi Yehuda, let us consider it—is this also for a wealthy widow or only for a poor widow? In the Torah there’s no hint about that; it says “you shall not take a widow’s garment as collateral”—any widow. Rabbi Yehuda says: any widow; we do not derive from the rationale of the verse—this is one of the examples they bring. Rabbi Shimon says: we do derive from the rationale of the verse. A poor widow—you need to return the collateral at night, and then you spread a bad name among her neighbors; a wealthy widow—you don’t need to return the collateral, so what’s the problem? He derives from the rationale of the verse. Why is there a dispute here? Because here you’re going only with the reason; you’re not bringing some derivation or wording in the Torah that shows it’s only a poor widow. Rather, as it were, I think to myself what the reason for the prohibition is—because it’s a poor widow and you need to return the collateral at night and so on. To rely only on the reason—that’s the dispute whether we derive or do not derive from the rationale of the verse. Or “he shall not have too many wives.” “He shall not have too many wives”—there too there’s a discussion. “He shall not have too many wives”—does that mean even righteous women, even like Abigail, or not? What, if I derive from the rationale of the verse, then righteous women are no problem, because it’s those who turn his heart away. But if I do not derive from the rationale of the verse, then no. And again, why? Because you have no homiletic or textual support for that derivation, so it’s a dispute about the rationale of the verse. But once the derivation yields that halakhic result, then the fact that there is reasoning here doesn’t bother us—on the contrary, that’s how derivations work. A derivation is always done on the basis of reasoning. So they asked: then why do you need the derivation if there is reasoning? Exactly because of this: because we do not derive from the rationale of the verse. If I only had that reasoning, I couldn’t rely on it; that’s why you need the derivation. The derivation comes to tell me: here, go with the reason. Here, where the reason by itself isn’t strong enough—there are various possibilities why the derivation is needed. So I return to our topic. Basically the claim is that in the case of the Holocaust that we spoke about last time, two things happen. First, the circumstances dictated the halakhic result. Second, after that happened, I do not ignore how they reached that result. Why? Because it’s also correct there to say that the result speaks about those circumstances—it applies only to extreme circumstances. And in fact in other circumstances it is not true that there is no monetary law; that’s not what Rabbi Gumbeltar meant to say. Not like Maimonides and Tosafot regarding sanctification of God’s name. There too, even Rabbi Gumbeltar, who spoke about extreme circumstances and said that there is no ownership there—it’s not that the extreme circumstances led him to some communist idea that there is no ownership in the world anymore in other circumstances as well. He said: in these specific circumstances there is no ownership. So there he himself says that he is speaking only about these circumstances and not about other circumstances, and in other circumstances there will be a different law. Therefore there is no problem at all; there I adopt the supposedly scholarly approach I mentioned earlier, because here it is really correct to do that, because here the circumstances are not playing only the game of what brought us to think this way; the Jewish law speaks only about these circumstances. So what will be written in the Shulchan Arukh? It will say: if you are in extreme circumstances—however you define them—there is no ownership. A subsection, an appendix to Choshen Mishpat: everything stated up to this point applies only in non-extreme circumstances; in extreme circumstances none of this is relevant, you can erase Choshen Mishpat. Almost all of Choshen Mishpat. There are laws of life and death, there are a few other things, but a lot you can erase. Okay? You can argue about this; that’s what I claim. But I’m only trying to bring the example—we spoke about this last time—that there two mechanisms converge into one inn. Both the mechanism that the circumstances reveal to you an aspect you wouldn’t have discovered without them—they also play the role of discovery—but there the circumstances also play the role of justification. There too the circumstances also tell me that in these circumstances this is the right way to act, and in other circumstances not, and therefore there too it will enter the Shulchan Arukh. Now basically this means—and from there I continued a bit to talk about it—that there are situations in which, in extreme cases, as I said quickly at the end, in very extreme situations a halakhic decisor who has not experienced it cannot rule about them. A halakhic decisor who is not in that situation himself, or does not deeply understand what such a situation means, cannot rule. And it’s like I mentioned that series of articles in Yated Ne’eman—that’s where I got interested in this issue of the Warsaw Ghetto, the Kovno Ghetto—and there was some response there from some person. In my view he was talking nonsense there, but for me the point is that if you don’t live the situation, then you work through the usual mass-produced glasses, and the usual mass-produced glasses are really wrong. When you don’t understand the situation, you can’t rule about it. You don’t understand what it means. I brought that example, yes, of two people falling, right, in an elevator, about to crash or something, one says: give me the pen. I don’t want to. I took his pen. Theft? Am I forbidden to take it? In another second both of us crash with the pen, and there won’t be a trace left of us. So what theft is there here, and monetary law and all the rest? It doesn’t sound right to me. But again, from this comfortable chair I can say no, absolutely not—robbery is robbery, and theft is a very severe matter, and one must be very careful and stringent about the laws of theft. Someone living inside the situation and understanding it knows it’s plastic. Meaning, in such a situation there is no such thing as monetary law. What theft? Leave this nonsense. You take my pen and I’ll give you whatever you want. What are you preserving that pen for, because for one more second you want it in your pocket until you die together with the pen? It’s nonsense. In such circumstances, someone living inside understands that it makes no sense to apply monetary law there. There is no ownership in such a situation. It’s nonsense. Okay? So I’m saying, but for that you really need to understand the situation, to experience it, meaning to understand what it really means. I said—I brought other examples, yes—what happens with rulings about women singing. All kinds of things; I mentioned this I think, no? All kinds of rabbis who say women singing is forbidden. If you say it’s categorically forbidden, fine. Forbidden because it’s absolutely prohibited, because the Sages forbade it and that’s all, not connected to circumstances and not to what it does or what its meaning is—fine, that’s one ruling. But a straightforward ruling in Jewish law is usually not like that. A straightforward ruling is that it’s forbidden because it arouses improper thoughts. In the Talmud in several places, yes, “a woman’s hair” and “a woman’s voice” are erotic nakedness, and all kinds of things like that, so it arouses thoughts. Now here it’s already a factual question: when you go to a Chava Alberstein concert, are improper thoughts really aroused in you? I don’t know—mine aren’t. I have to confess; maybe I’m confessing here to some flaw in the human drive, but no, really not. I would go there because—it’s not that I’ve been there, but I would go, because I like her singing, it’s simply beautiful. She sings beautifully, and I don’t think it has some sexual connotation. There may be performances where there are sexual connotations; that’s another matter. But I’m saying that to understand this you have to hear women singing, understand in what context it is perceived today, how people relate to it. In normal, conventional performances by normal female singers—not these highly sexualized things—nobody imagines such things, in my opinion, and that’s not the point, it’s not the context there at all. Now someone who hasn’t experienced it maybe doesn’t understand that. For him it says in the Talmud that it arouses thoughts, and he’s sure that everyone there comes only because of the sexual fantasies aroused in them by hearing the singing. He never experienced it, so he cannot rule about it. Again, this is no longer an extreme situation like the Holocaust, but still, it’s a situation where if I believe you that you’re an upright Jew, then if you forbid it you surely have never heard women singing, right? So you don’t know what it does. You don’t know the context of this thing. If you don’t know what it does, you can’t issue a halakhic ruling. You can’t say it’s forbidden—you don’t know. You need to understand what it does to people in order to decide whether it’s permitted or forbidden. Therefore, when the situation is very foreign to you—even if it’s not very extreme like the Holocaust, but it’s a world completely different from yours, totally foreign to you—in such a place you cannot decide about it. Maybe you can decide what it does to you or to people like you who live more or less in the same world, maybe. But you cannot decide what it does to other people. The same thing with the various egalitarian prayer groups. There are all kinds of rabbis expressing opinions about this issue; I think it’s wrong to do that. In halakhic contexts, what is halakhically forbidden is forbidden, fine. But in a place where you express an opinion on what is appropriate and what is inappropriate, you need to know what such a community thinks, what this does to that community, what it means if you do this and if you don’t do this, and only then can you make a real decision. It makes no sense for someone who doesn’t live in this world at all to issue rulings for them. On these matters, again I say, if there’s something that is categorically forbidden, not connected to what it does or doesn’t do for you, then maybe. But in places where it’s not like that, then I think one should be careful with such halakhic rulings. Now there was the Holocaust Remembrance Day ceremony, and the two chief rabbis were there, and there was lots of women singing. This always happens, and people have already brought it up, and said: look, we can’t, and this and that, and it’s like what they permitted for Rabbi Yehoshua ben Hananiah. No, but that means they understand what women singing is and still haven’t changed the ruling. Yes, but you understand that they forbid it for other reasons; these are categorical halakhic considerations that were there. Yes, but in their reality, as Haredim, it doesn’t seem to me that they grasp the thing itself. Meaning, it doesn’t seem to me that they grasp women singing as women singing. Or say egalitarian prayer groups—whether it’s forbidden or permitted. They don’t come to discuss that at all. From how I see it, coming from my own society, they look at the motives. Meaning, those who make egalitarian prayer groups—how much, I don’t know, what their motive is—but that, that’s the main thing. But they don’t know that either. Because they—first, I don’t agree, but okay, first. What are they looking at? Their motives—does it come from an ideological direction? What direction is it coming from? Meaning, if there were, say, egalitarian prayer groups where everyone were righteous men and women saying, wow, let’s do something egalitarian because we value it, blah blah blah—first, they don’t know their motives because they don’t know them. I happened to think exactly that until I came to a society of that type and encountered things I hadn’t thought of. Okay, I didn’t say they know them, but what they attack, they attack the issue. It doesn’t matter; my criticism is the same. You’re talking about something you don’t understand. Not you. Yes, I agree. You’re talking about something they don’t understand, so what do you mean? I also don’t agree with that. Second, I don’t agree—even if you know, I don’t agree, because motives are not a halakhic consideration. When someone goes up to the Torah because he has a motive to look important, would you prevent him from going up to the Torah because of that? Since when do we examine motives? If it’s permitted, it’s permitted; if it’s forbidden, it’s forbidden. What are motives? Motives are not a halakhic consideration. What’s the point of issuing decrees because of motives? To say, for example, I decree—what’s the point? What authority is there to issue a decree because there is some… They have no authority to issue decrees today. There’s no problem that we would have a Sanhedrin; nobody today can issue decrees. There is no one who can and is authorized to issue decrees. Those same rabbis themselves will tell you regarding Independence Day that today there is no one who can enact ordinances, right? To issue decrees? Then they too shouldn’t issue decrees. Including the telephone, by the way, the smartphone. Same thing; it’s self-contradictory. Meaning, there are decrees here, prohibition in the object itself, not just a warning. If you warn that it’s dangerous and so on, that can be discussed. But decrees, as though in the object itself—where does the authority suddenly come from to issue decrees? This authority was born after they explain to us that there is no authority to do anything; even the things one might have been able to do, there is no authority to do. So what suddenly happened now that yes, it’s possible? What happens is that because people understand that there are some motives here that create a problem for them—and even assuming they’re right; I don’t, it’s not always like that, sometimes yes but not always. I don’t think motives are a relevant consideration. Motives are fine—I have all my own motives. I give charity so that my son should live, I give charity in order to look generous. So what, because of that is it forbidden to take charity from me? Is there some prohibition? What does that have to do with anything? And another thing: one does it for its own sake and another not for its own sake. Someone who does it for its own sake is of course better, but that doesn’t mean that if someone does it not for its own sake, it’s forbidden to do it or it is invalid. You have to decide: if there is a halakhic prohibition, then it’s forbidden regardless of motives, and if there is no halakhic prohibition, then again it is permitted regardless of motives. At most you can say: I don’t recommend it because I think it’s a problematic process. Fine, say that, and we’ll see whether we accept it or not. Only the thing is, people are afraid that if they say it that way, people won’t accept it. If they say it’s forbidden, then people will accept it. And here we pay a very high price, because then the public loses trust in rulings. Because the public eventually understands that this isn’t really a halakhic prohibition, and then it loses trust even in places where it really is a halakhic prohibition. And they no longer believe you after you say that. It’s like Eve with the tree, right? She told the serpent that the Holy One, blessed be He, said not to touch it, but actually the Holy One, blessed be He, said not to eat from the Tree of Knowledge. Rashi on the Torah says that the serpent pushed her, and there you see, you touched the tree and nothing happened; now she also ate. When you present something that is permitted as though it were forbidden so people will accept things from you, there is a price, because if it turns out that this thing is not forbidden, then the next time you say that something really forbidden is forbidden, they won’t accept that either. And that is what is happening today, by the way. The same thing, by the way, about texting. It’s true, exactly that. And texting on the Sabbath—what is that? Where did this phenomenon come from? Suddenly there’s some easygoing attitude, but why specifically texting? Driving on the Sabbath is sometimes more irritating than not driving on the Sabbath, more irritating than texting. Why specifically texting? I’ll tell you why: because there is no prohibition. If you ask halakhic decisors why it is forbidden to text on the Sabbath, you won’t get an answer. I’ve spoken with several people. There is no answer. I have some ideas one way or another, but it’s very weak, very loose, yes? Not well grounded. It’s forbidden to use a smartphone on the Sabbath, but they don’t understand the problematic nature of the matter. One second—so people feel that basically they’re being sold a bill of goods; it’s not really forbidden. Again, I’m not a great Torah scholar, all these guys are, but sometimes there is a feeling that they tell you something is forbidden because they don’t want you to do it; it damages the character of the Sabbath, it makes it like a weekday, all kinds of things of that sort. Those are very dubious arguments, and people don’t buy them. Now if you had said that, maybe people would have accepted it more. But they anchor it in a prohibition—and leave me alone, that doesn’t work. Moving your finger on a touch screen—don’t tell me that’s building or kindling. Now again, sometimes this is because you don’t understand what the categories of building and kindling are, but many times it’s just healthy intuition and people don’t accept it. I think that’s part of the reason for texting on the Sabbath. It’s not only this sloppiness and going to the edge, but there is some kind of feeling that we don’t buy what they’re telling us is forbidden—explain to me why it’s forbidden. Halakhic decisors—you’ll see—there are decisors who actually permit it. Actually permit it, they just don’t publicize it. And there are other decisors who say here and there maybe it’s creating something new, maybe I don’t know what, these rabbinic-level things that never entered Jewish law, some breach, some sort of thing that’s very far-fetched. I have some idea about building according to the Chazon Ish, but you need to understand what building is, and again it’s a principle you can argue with. Meaning, it’s not something very clear. I’m saying that sometimes this public has a healthy intuition for when you’re putting one over on it. And even though most of them are ignorant and don’t understand—not because they studied the passage and understood that you’re putting one over on them—there is a feeling of loss of trust. Meaning, if you show me black on white, this is a halakhic ruling, this is Talmud, this is Torah, I don’t know exactly what—many more people will accept it. Why did you latch onto texting? All electricity is building or kindling. No, no—texting is stronger. With electricity there is kindling in an incandescent bulb, for example, there could be kindling there. In something that isn’t LEDs today—with what? Today with—okay, so LEDs already get closer to a smartphone. Fine, true. But LEDs get closer to the smartphone, where there too there is maybe creating something new, and in a smartphone it’s even doubtful whether there is. What are you doing there? You move—there’s always some light turning on when you—eh? There’s always some light turning on with every action you do. No, it’s not exactly lighting a bulb. I myself don’t know exactly what happens there; it’s also LEDs, I don’t know exactly, but it’s a problematic business. I haven’t checked it deeply enough; I myself don’t know exactly. Once you touch it, it wakes up the device. Wakes up the device—that’s true, it wakes up the device, it changes the image, and the question is whether something is being turned on and off, what exactly happens there. So that—I’m not, again, I’m not sufficiently expert in this matter. I’ve read a little and spoken a little with people. No, no, the prohibition is not clear at all. There are decisors who quietly say there is no prohibition. By the way, it seems to me that Rabbi Feinstein too—no, actually this was before smartphones, I think—but he also has some statement in that direction. There are important decisors. Fine, never mind, that’s just a parenthesis, I’m not getting into it now. The point is this: basically what happens is that there are extreme circumstances in which the rules of Jewish law change. Do you understand what that means? So the rules of Jewish law change. Now I brought here last time—I didn’t bring it now—there is a responsum from the responsa From the Depths by Rabbi Ephraim Oshry, Ephraim Oshry. He himself was, I think, in the Kovno Ghetto; yes, he too was in the Kovno Ghetto, and he collected questions that people asked him during the Holocaust, and after the Holocaust he gathered them into a responsa work called From the Depths. Truly horrifying things, truly horrifying things. The halakhic treatment of these issues is really very powerful. To read it is really study for Holocaust Remembrance Day. In any case, in this responsum there is a point that from an outside perspective looks reversed. Meaning, with Rabbi Gibraltar, from the outside it looks as though he’s talking nonsense—what do you mean, this action means there is no monetary law, no, there is no monetary law? So I said that if you live the issue from inside and understand the meaning of things, you understand that there is no monetary law in the ghetto. Here the picture is the opposite: when you look from outside, you don’t understand at all what they want—obviously everything is permitted, it’s a matter of saving life, what’s the question? And look at the analysis he makes here on things I wouldn’t write half a line about. They ask me: is it permitted? Obviously permitted—it’s saving life. Look at the question. “I recall these things and pour out my soul within me”—in the days of those accursed horrors there was no recovery for them, and every day more than a thousand people were taken out of the ghetto in order to work them with backbreaking labor at the airport, whatever airport this was, and to afflict them with their burdens. And behold, my student Aryeh Gorf, may God avenge his blood—who in the end died, of course, as he says—came before me with this question upon his soul. Since he had the possibility of entering work in the kitchen, at the place where the black soup was cooked, made of beans, which the Germans distributed to the Jews together with one hundred grams of bread per day, and to our sorrow there he would be compelled and forced to work in the labor of cooking even on the Sabbath. Is it permitted to cook on the Sabbath? Because it will save him; otherwise he will die, and we see that he eventually died because of this fact. The question is whether he may work in the kitchen in the ghetto for the sake of the hundred grams of bread and this bean soup, because otherwise he will be forced to cook there on the Sabbath. And since by this he will be saved from the hard forced labor at the airport, which consumes the soul and breaks the body, perhaps this too involves saving life, because inasmuch as he will be saved from hard and exhausting labor and will be able to eat and satisfy his hungry soul with the black soup to his heart’s content—for one who works in the kitchen can of course take some—and his body will thereby become stronger. And he further asks whether he himself may eat on the Sabbath day from the black soup that he cooks on the Sabbath, under the law of food produced on the Sabbath. Now on the face of it, if I stopped here, I would say: listen, don’t be stupid, obviously it’s permitted, what kind of question is this, it’s saving life—do it. It’s a commandment, not just permitted; you are forbidden not to do it. Right? This is a full responsum, two pages—it’s double-sided, by the way—two pages with all the laws of food produced on the Sabbath, with pilpul this way and pilpul that way, and what exactly is permitted and what is forbidden. Look: Responsum: in Chullin 15a we derive: we learned in the Mishnah, one who cooks on the Sabbath—if unintentionally, he may eat; if intentionally, he may not eat—these are the words of Rabbi Meir. Here he comes to discuss food produced on the Sabbath; he discusses it as if he doesn’t know—well, in Sweden. Rabbi Yehuda says: if unintentionally, he may eat after the Sabbath; if intentionally, he may never eat it. Rabbi Yochanan HaSandlar says: if unintentionally, after the Sabbath others may eat it but not he; if intentionally, neither he nor others may ever eat it. So here is a three-way dispute about food produced on the Sabbath—great matters. And Maimonides, chapter 6 of the laws of the Sabbath, law 23, rules: if a Jew performed labor on the Sabbath, if he intentionally transgressed and did so, it is forbidden for him to derive benefit from that labor forever, but other Jews may derive benefit immediately after the Sabbath, as it is said, “And you shall keep the Sabbath, for it is holy to you”—it is holy, but what is done on it is not holy. How so? A Jew who cooked on the Sabbath intentionally—after the Sabbath others may eat it, but he may never eat it. And if he cooked unintentionally, after the Sabbath both he and others may eat it immediately. And Maimonides ruled like Rabbi Yehuda. But the Tur, in section 318, ruled in the name of his father, the בעל התוספות—well, the master among Tosafot—that if unintentionally, it is permitted even for him on that same day, and if intentionally, it is forbidden on that same day even to others, and in the evening it is permitted even to him—meaning he ruled like Rabbi Meir. And Nachmanides decided in accordance with Maimonides, and so too the Geonim ruled, and the Shulchan Arukh also ruled like Maimonides. See there in section 318, where he wrote: one who cooks on the Sabbath intentionally—it is forbidden to him forever, and to others it is permitted immediately after the Sabbath; and if unintentionally, it is forbidden on that same day even to others. And behold, all these great authorities do not mention even forbidding it for the amount of time needed to do it. The question is whether after the Sabbath one must wait the amount of time it would take to cook it—“the time needed to do it.” There are several explanations for this. The simple explanation, it seems to me, is that you don’t wait “the time needed to do it,” because if you don’t wait that amount of time then you are benefiting from an act done on the Sabbath. If you wait that amount of time, then you didn’t benefit from the fact that it was done on the Sabbath, because after all you could have done it after the Sabbath and at that same time you already could have eaten even without having cooked on the Sabbath, so it’s not considered benefiting from an act done on the Sabbath. Okay? As Tosafot wrote there under the opening words “Rabbi Yehuda says, if unintentionally he may eat after the Sabbath and not on the Sabbath,” and the same applies to others, for even though with unintentional action there is no capital liability, there is still a transgression, and we require “the time needed to do it,” so that benefit should not come from a transgression. Meaning, that he should not benefit from the transgression. Look. In Bava Kamma 71a it says: what is the reason of Rabbi Yochanan HaSandlar? As Rabbi Chiya expounded at the entrance to the house of the Nasi: “And you shall keep the Sabbath, for it is holy to you”—just as holy things are forbidden to be eaten, so too acts of the Sabbath are forbidden to be eaten. If holy things are forbidden for benefit, so too acts of the Sabbath are forbidden for benefit. Scripture says “to you”—it shall be yours. Could this apply even to unintentional action? Scripture says “its desecrators shall surely die”—I said it regarding intentional action and not unintentional action. Rav Acha and Ravina disagree: one says the law of an act of the Sabbath is of biblical origin, and one says it is rabbinic. The one who says it is biblical derives it as we said; the one who says it is rabbinic says the verse says “it is holy”—it is holy, but what is done on it is not holy. Fine, so whether it is biblical or rabbinic is a great novelty. The Ritva on tractate Ketubot 34b wrote: when Rabbi Yehuda says that if done intentionally he may never eat it, that means he himself may not eat it, for he alone is considered like one for whom the act of the Sabbath is forbidden to the whole world; only Rabbi Yochanan HaSandlar goes that far. Rather, from our passage it turns out that unintentional according to Rabbi Yehuda is like intentional according to Rabbi Meir; unintentional according to Rabbi Yochanan HaSandlar is like intentional according to Rabbi Yehuda. And we say with respect to acts of the Sabbath that Rav Acha and Ravina disagree—and the details don’t matter to me now, so here he would toss the Ritva off to the side of the page, yes? Therefore it’s a complex passage. And know that they disagree according to Rabbi Yochanan HaSandlar, for he said acts of the Sabbath… and therefore the point is only to bring proof from here that the law is not in accordance with him, for in the first chapter of Chullin we say that Rav would instruct his students according to Rabbi Meir, but would lecture publicly according to Rabbi Yehuda. Yes? In analytic learning he learned like Rabbi Yehuda, and when they asked him practical Jewish law he ruled like Rabbi Meir. That’s a hint to the yeshiva world straight from the Torah. And who is greater than Rav in ruling Jewish law? And if because the passage here unfolds according to Rabbi Yochanan HaSandlar—Rav did not hold like him, and only because he wanted to challenge the distinction of the one who says acts of the Sabbath are rabbinic as well, what then is the reason of the Rabbis, etc. As we said. It is explained explicitly—the details are unimportant—it is explained explicitly in the words of the Ritva that he holds that Rabbi Meir and Rabbi Yehuda both hold that there is no eternal prohibition on acts of the Sabbath. That was his purpose in proving from this Ritva; that’s not important right now. According to both Rabbi Meir and Rabbi Yehuda, the prohibition on acts of the Sabbath is not forever but only until after the Sabbath. And Rav Acha and Ravina disagree only according to Rabbi Yochanan HaSandlar, but for themselves they do not hold like him in forbidding acts of the Sabbath forever. And the Taz, in notes to section 318, subsection 2, testified that he wrote as follows: for the one for whom it was cooked, his law too is like that of the person himself, as he wrote in Yoreh De’ah section 99 regarding something where one intentionally nullified a prohibition—in that case it is forbidden to him and to the one for whom it was nullified. Here too the reason is because of a penalty. But from the words of the Beit Yosef there it appears that specifically there we are concerned that he may tell a gentile to nullify it, but here, since in any case one has to wait “the time needed to do it” when a gentile cooked for a Jew, we are not concerned—if he needs to wait the time needed to do it, then he won’t tell someone to cook for him. In any case, he will have to wait anyway, so what does he gain by having someone cook? Understood? And if I cook on someone’s behalf, according to all their laws it’s like the person himself. Okay? As the Magen Avraham wrote. If so, in our case at first glance one should forbid him to cook, and if he transgresses and cooks, the food should be forbidden to a Jew, since all the cooking work in the kitchen is for the Jews who are in distress and captivity and in those camps. Absurd, completely absurd. Right? He wants to forbid it to all the Jews and to the man himself because of the law of acts of the Sabbath, and let them die of hunger. However, in the book Rosh Yosef on tractate Shabbat 72 he wrote that if someone is forced to choose one thing for himself—either to desecrate the Sabbath or to eat prohibited carrion—he should choose desecrating the Sabbath. For desecrating the Sabbath is under coercion, and is considered labor not needed for its own purpose, and is therefore only rabbinic. Whereas if he eats carrion, he will violate a biblical prohibition, because only in the labors of the Sabbath is there the exemption of labor not needed for its own purpose, but in prohibitions like carrion there is no such thing. For he does derive pleasure from eating it. And this is connected to everything the medieval authorities say: whether for a sick person it is preferable to slaughter properly or to feed him carrion—so it’s a similar discussion. And Rosh Yosef further brings there that Pnei Yehoshua disagrees with Tosafot there, who wrote that one who acts on the Sabbath because of suffering is liable; Pnei Yehoshua holds that because of suffering and the like it is labor not needed for its own purpose. And so too regarding what the Maharsha wrote about the stick-gatherer, that his intention was for the sake of Heaven, according to the well-known Tosafot—he brought that midrash that the stick-gatherer intended it for the sake of Heaven, so why did Moses kill him? After all, this is labor not needed for its own purpose; he didn’t gather the sticks because he needed the sticks, but in order to teach Israel that “its desecrators shall surely die.” So that is labor not needed for its own purpose, so why did Moses kill him? What’s the answer that Meshekh Chokhmah didn’t know? Because if Moses had known, then he wouldn’t have succeeded in teaching Israel that “its desecrators shall surely die.” Fine, those are the pilpulim of Tosafot. And on the basis of the above words of Rosh Yosef, the Maharshal—no, the Maharsham—in Orach Chaim, laws of the Sabbath, wrote that one can find justification for Jewish soldiers, whose labor is only rabbinically prohibited, since they do it under coercion and they are forced under coercion; therefore whatever they do is labor not needed for its own purpose, and if so it is only rabbinically prohibited. And it appears that here too it is like that: the Nazis force them to cook on the Sabbath, so because of that, since it is under coercion, it is labor not needed for its own purpose and is only rabbinically prohibited. Now one needs to discuss acts of the Sabbath when the violation is only rabbinic. Okay, notice—this brings from the words of Maharik, who wrote in root 147. But it’s not necessary that I want it practically. What? There it wasn’t necessary that he wanted it? So what if I want it—so what? For the question returns: coercion is permitted, as follows from the discussion of violated women at the beginning of tractate Ketubot. So the later authorities are precise there in the responsum of Pnei Yehoshua and all of them about what happens with coercion and desire: when they force me to do something that I also happen to want, there are many opinions there that it is still coercion. It is still considered coercion. So what if I want it? I would have had to do it in any case, and I happen to want it, so what? Yes, but to put it in the category of labor not needed for its own purpose because I’m not benefiting—I am benefiting from it. No, labor not needed for its own purpose doesn’t mean I’m not benefiting. Labor not needed for its own purpose means I didn’t do the labor for that purpose; it is something different. I did it because I was coerced; it has nothing to do with pleasure. Labor not needed for its own purpose has nothing to do with pleasure. And in unintentional action there can be a case where one does benefit, which is one of the laws in sexual prohibitions, but that’s another discussion. Even unintentional action isn’t because of pleasure, but there the prohibition is because he did derive pleasure. Fine—the question is whether it is a rabbinic prohibition or not a rabbinic prohibition, and he starts discussing. And at first glance one can infer from the Jerusalem Talmud that in a time of persecution when they decreed against the Jews—by the way, there is also Maimonides’ distinction, that one who eats—Maimonides in the laws of the foundations of the Torah, chapter 5, distinguishes between sickness and coercion: if you do something under coercion, then you are coerced, but if you do it because of sickness, you are not called coerced, even though otherwise you’ll die. No, that is considered voluntary. He doesn’t classify it—and this is also the place to discuss according to that Maimonides. Fine. So there, in a time of persecution they decreed against the Jews to desecrate the Sabbath, and the Jews whom they loaded with burdens on the Sabbath—respected Jews arranged that two people would carry one burden together in order to be exempt. Why did they do that? If they are forced, then they are exempt because it is labor not needed for its own purpose; they don’t need to arrange for “two who did it,” another rabbinic prohibition anyway. So that is apparently proof against Maharik and all that group. And then I wondered about the law of labor not needed for its own purpose when gentiles force them to desecrate the Sabbath; if so the question returns to its place—why did the Jews need to arrange that two would carry? Yes, I’m skipping the next paragraph. And so on. In short, just appreciate the level of detail he goes into. He says one could say that those Jews who arranged their actions did so in order not to come to a biblical prohibition according to everyone. It could be that they did that in order to satisfy all opinions, even those who hold one liable for labor not needed for its own purpose, namely Rabbi Yehuda, since Maimonides rules like him. Maimonides rules like Rabbi Yehuda regarding labor not needed for its own purpose, even though the decisors do not, but Maimonides does. Fine, so they did it in order to satisfy all opinions. Okay, that’s nice here. If so, then according to this it works out well for me according to the words of the Jerusalem Talmud, what it wrote that the Jews were arranging and so forth—I’m skipping the next paragraph—and according to this, in our case, you see? And according to this, in our case, where the accursed Nazis were forcing the Jews to work in all kinds of backbreaking labor on the Sabbath, and if they did not obey they would kill them with all kinds of deaths and tortures, surely this coercion is coercion of death, and surely one must permit these poor wretches to desecrate the Sabbath, and the Merciful One exempts one under coercion. That’s regarding the very doing of the labor. The very doing of the labor is coercion. Fine? And beyond that, all the more so when there is actual danger to life here. And something similar I saw in the responsa Yad Shalom, who wrote that in the case of someone forced by the government to desecrate the Sabbath with a biblical prohibition, one may incline to permit him on the basis of what Maharik wrote. An enormous novelty. If the government forces you to work on the Sabbath, and you work because the government—not because your life is in danger, but because of ordinary economic pressure, because that is the job description. You work in labor—notice, this has practical implications for today. Someone whose job is defined as including the Sabbath—the factory owner defined it. He wants the factory to operate on the Sabbath too, and that’s permitted by law. Okay? So this Yad Shalom says: Maharik. Does it matter whether the government is a government of gentiles or of Jews? Yad Shalom—I don’t know who he is—so he says no, in my opinion it doesn’t matter. What difference does it make? It is still labor not needed for its own purpose, because you are doing it for the government, not because you want to. So labor not needed for its own purpose is only a rabbinic prohibition. In a case of significant loss there is room to permit a rabbinic prohibition; now there is room to play here. Okay? This is a massive permission, it’s unbelievable to tell it, this reasoning. But look, it really comes out that way. And whoever says this, that it is labor not needed for its own purpose, this novelty of Maharik and the like—there is definitely room for this reasoning; it’s an amazing thing. And if so, all the more so in our case, where the coercion is coercion of life and death—not like there where it’s only that the government says so, yes?—that one should permit them to desecrate the Sabbath. So that’s regarding the actual act of cooking. What happens regarding an act of the Sabbath—benefiting from the result? Okay? The upshot in law is that from all the above it seems to me that one should permit the one who remains to work in the cooking labor on the Sabbath in the kitchen, since in a case like this they would force him to work in forced labor at the airport on the Sabbath. In another place he would need to work. What difference does it make whether he desecrates the Sabbath in one kind of work or in cooking? And in such a case he will not violate a biblical prohibition, since because he desecrates the Sabbath under coercion, it is labor not needed for its own purpose, which is forbidden only rabbinically. And if it’s biblical then what? If it’s biblical then under complete coercion and danger to life it’s also permitted. So he says even more—maybe it’s only rabbinic, and he says that explicitly. The answer that shuts down all the pilpul. No, because maybe the airport work wasn’t a biblical prohibition. Huh? No, he compares biblical prohibitions, because he says what difference is this or that. So what is all this pilpul for? Therefore it certainly appears that it is permitted to work in the cooking labor on the Sabbath, since by doing so he will also have a little food to revive his soul, and therefore there is no prohibition at all in eating the black soup he cooked on the Sabbath. Why? And in such a case, according to everyone, an act of the Sabbath is not forbidden, since this eating involves saving life. And all the more so it is permitted for other Jews to eat this soup that was made on the Sabbath for the same reason, since saving life overrides the Sabbath, because of the broken condition of these poor wretches, who are utterly miserable and are literally wasting away from hunger and siege; therefore it is certainly permitted for them to revive their bitter souls with this soup that was cooked on the Sabbath. And may the good God save us from error and say to the destroyer: enough. He is afraid maybe he erred in this ruling. And may He bring us from darkness to light. I have never in my life found a more trivial ruling than this one. Wait, but is he talking about the Sabbath itself too, or do they have to wait until after the Sabbath? No—because it’s a matter of saving life, then certainly even on the Sabbath itself. On the Sabbath itself too. Yes. He doesn’t return to that at all. He doesn’t return, yes, because it’s so funny. Meaning, he did the whole discussion—three quarters of the responsum went on acts of the Sabbath, right? Then he moved to this rabbinic prohibition, labor not needed for its own purpose, and then he says they may work because it’s only rabbinic and saving life, and so on. And what about acts of the Sabbath? You forgot to discuss that. What about acts of the Sabbath? No, it’s saving life, acts of the Sabbath are permitted. So why did you do three quarters of the responsum? You went into the question of acts of the Sabbath and rabbinic versus biblical and Rabbi Meir and Rabbi Yehuda—for what? Why did you do all this discussion? This whole responsum is a bizarre responsum. But why is it bizarre? You need to understand the idea. And I’m not mocking it; I’m trying to explain. Here the point is exactly the opposite of what it was last time, and this is the reverse perspective on the same phenomenon. When you look from outside, misunderstanding can go in both directions. The misunderstanding can say, like that fellow in Beit Yitzchak, let’s say: what do you mean? It doesn’t fit with the ordinary mental frameworks that there is no ownership in the ghetto. Of course there is ownership in the ghetto. That’s one kind of basic mistake: you don’t understand the leniency made by the person inside the situation. Here you don’t understand the stringency he made while inside the situation. Understand: someone inside that situation—that is his life. He lives there for years. Years they lived like that. We look at it as some bizarre situation, but that was their whole life there. What do I mean whole life? A year is a very long time. Think how much time a year is. Say it was one year or two years or however long it was. For two years they lived like that. That was their reality. They discussed the laws of the Sabbath like we discuss them today, even though it sounds bizarre. He understands that in the background there is danger to life, but he doesn’t see it in the same way we see it—but this time to be stringent. And when we look from outside, then as far as we’re concerned you are in the middle of a fire. What are you talking about? It’s saving life. What is there to start discussing here about acts of the Sabbath? He doesn’t—he is there. It’s his life, right? Hard life, because all of life, all of life is danger. Yes, exactly. So what, then we won’t keep Jewish law at all? This is our life. So he enters into a halakhic discussion that again… It’s not completely like that. Therefore I’ll add one more explanation that only complements this explanation, it’s not another explanation. Obviously he also has some interest in preserving halakhic normalcy. Because if on every question you ask me I say, saving life, everything is permitted, then next time you won’t come ask at all. After all, everyone will do whatever they want and transgress the whole Torah, because in saving life everything is permitted. Now, that seems to him a bad thing even though it’s true. You don’t need to ask anything. “One who asks in such a case is blameworthy.” Fine? That really is true halakhically. But when saving life goes on for years, then the rabbis inside the situation understand that it is not correct to conduct oneself according to Jewish law that way. Come ask every question and receive a detailed halakhic answer. In the end it will be permitted, of course, but I will make a whole pilpul for you to explain why it is permitted, even though it’s nonsense, because in the end the answer is saving life. But it’s important to me to make the pilpul so that you understand that Jewish law continues with us. Jewish law continues with us even when we are here, and in principle we could have thrown the whole Shulchan Arukh in the trash. Not relevant—do whatever you can to survive. After we survive we’ll go back to talking about the laws. No, someone inside knows that is not correct. And sometimes the feeling of the person inside is precisely that he needs to be stringent, not lenient. I brought the example of the Dvar Avraham, also in the Kovno Ghetto, in the same ghetto, who instructed the yeshiva students there to be careful not to eat legumes on Passover. Unbelievable. Why? There was real danger to life. He was aware of that; he wrote it. Why? Because maybe we will die whether we eat legumes or don’t eat legumes. Maybe the merit of being stringent about legumes will help us so that the Holy One, blessed be He, will save us. So the danger to life told him precisely to be stringent about legumes. Whereas the simple Jewish law, when you ask someone from outside, not inside the situation, says: eat everything, what do you mean? Eat pork and legumes together with cream in milk too. Milk actually isn’t forbidden by a negative commandment there, never mind—do whatever you want. Yom Kippur falling on the Sabbath. It’s saving life. It’s not like that. And there are sometimes situations where from outside you can make both kinds of mistakes. You can make the mistake of not understanding the depth of the problem, and then you’ll be stringent. And sometimes you don’t understand that this is life. You understand the depth of the problem too well; you treat it like someone who is in such a situation for an hour, where indeed it would be saving life, and after the hour he returns to normal life. But if it’s years of such a situation, then this is our life. When we fall into—we are inside the falling elevator with the pen, and that elevator is falling from the Empire State Building and takes about a year to fall. Then it’s no longer so simple that I’m allowed to take the pen and all that—issues of theft and all, right, fine. I have a year that I need to live like this, or five years or I don’t know how long. Okay? So as long as you are not inside the situation you don’t know how to judge it. You can judge it this way, you can judge it in the exact opposite way, and both of those judgments can be correct. Who will decide? The person inside the situation. The one who understands what the thing means, he feels it in his fingertips. It’s not enough to know the whole Shulchan Arukh for this; that’s not the point. You need to understand what the things mean, what their significance is, how they are perceived, how we experience it. And that is basically what this says. And here you can take it in both directions. Because the fact that you experience the thing—I talked about this in the last post with the two, Rabbi Elyashiv and Rabbi Shteinman, which is really connected, right, it’s really tied to this issue. Because there really are two kinds of considerations, and both are valid. Should a halakhic decisor be detached from the situation, or should a halakhic decisor be inside the situation? There are sides here and there. It’s not simple. Even though I presented the other side, the first side is also a valid side. Someone inside the situation is biased. He sees things from the gut too, not only from the head. Meaning, it’s hard for him; there are prices, there are interests, there are consequences, outcomes. It may be that your judgment is biased. And someone looking from outside can give you a more balanced view. And there is value in someone who is specifically detached from life or detached from the situation under discussion and gives his opinion and tries to make a clean judgment. Okay? On the other hand, as I said before, there is of course also added value to someone who understands what the situation means, who lives it. So first of course it depends on how extreme the situation is. If it is very extreme, then someone detached from it won’t understand what you’re talking about. But obviously—this is the model of what is called the Council of Torah Sages. What is the Council of Torah Sages? The idea there in the Council of Torah Sages—that’s the idea there. As opposed, say, to the old National Religious Party, where the Knesset members also made the decisions—at least once that’s how it was—where they too made the decisions, and there wasn’t some council of rabbis beside them that determined what they should do. Among the Haredim there is the Council of Torah Sages. What is the idea behind it? There is a lot of logic in it. Because the Knesset members will make biased decisions, according to interests, according to this and that. By contrast, someone whose fate is not dependent on the matter weighs it on its own merits, weighs it coolly—what is the right thing to do—and makes much better decisions. Of course, provided that he is completely immersed in the details and consults, and really understands what things mean. Meaning, he really has to know the reality, but precisely there the decision is really entrusted to the council of rabbis, not to someone else and not to the Knesset member. Let the Knesset members describe the situation, explain the implications, and afterward the rabbis decide. That’s very correct, and therefore it really depends very, very much on how distant the situation is, how much the situation biases you, and whether this produces bias or whether it produces a lack of understanding of the inside of the situation. The situation can do two things. If you are inside the situation, you understand it better; on the other hand, you are also biased by things that are not relevant. It’s very delicate. Therefore I think that as a general principle I would say that halakhic rulings, if there is time for it—in extreme cases there isn’t always time and opportunity for this—but halakhic ruling should basically be arrived at through some sort of dialogue. In the end, the one inside the situation should ask the one outside the situation. The one outside the situation, especially if he is, say, a greater Torah scholar, can more—say, like this question, right? In fact the rabbi is inside the situation because he is inside the whole atmosphere of the thing, but he is not the one who is supposed to announce the ruling. Okay, but if he were the one announcing the ruling, then it would be appropriate to go to someone else, or generally to go to someone outside the ghetto if possible. Okay, I’m saying at the conceptual level it should be some sort of consultation. Say, a young rabbi of a young community on some egalitarian issue, on all kinds of less extreme examples. Okay? So if you go to some Haredi rabbi or elderly rabbi or someone who doesn’t know the situation at all, it’s not right for him to issue the ruling. On the other hand, you who are inside the situation don’t always see it; you also have your interests. So if you go talk to him, he will present to you the various possibilities. He will show you what considerations you should take into account, but in the end you will decide. Fine? He will critique you, but you will make the final decision. You will consult him because he is a greater Torah scholar, because he will present you with more angles, because he is detached from the situation and so he will present angles you perhaps would not have thought of. But ultimately I think each side here has some added value, some contribution to this ruling. And one must be very careful both with an inside ruling and with an outside ruling; that is, both are problematic. One has to be very careful—the line here is very thin. So the influence of the situation in the end is, first, real; sometimes it is beneficial, sometimes it can bias the matter. If I sum up this whole issue of the influence of the situation on halakhic opinions, one has to be careful with it, one has to be careful with it, and I think the right model is some sort of conversation between those outside and those inside, who are aware of both things: both the biases created by being inside and the opposite biases created by being outside, and also the insights the inside gives you, which the outside does not allow—you don’t have those insights. Okay? When both sides understand both these aspects and talk with one another, I think they can reach the best result. I’m closing the parenthesis, because all this was actually a parenthesis in the course of the discussion—this is what I was supposed to do on Holocaust Remembrance Day. From the discussion of the dispute and how it is formed, I thought to go into the influence of circumstances on halakhic opinions. And we talked about it in the context of how a dispute is formed, but this is no longer about dispute; it’s about the relationship between circumstances and halakhic ruling. Next time I’ll return to the topic of dispute, and I hope it will finish next time. We’ll talk about two aspects. One aspect is dispute about facts. The accepted halakhic view somehow says there is no dispute about facts; that doesn’t withstand criticism—there certainly is dispute about facts. And the second question is dispute in the social sense, and “whoever holds onto dispute transgresses a prohibition,” meaning dispute in the negative sense, all the way to Korach and his congregation. Thank you very much.