Avodah and Accepting the Yoke of Heaven – Different Paradigms

The first Mishna of Maseches Berachos (which is the first Mishna of Shas according to our tradition) starts by stating the time at which Keriyas Shema should be said at night (when the first three stars appear in the sky). The Gemara immediately asks two questions:

1. how do we know that we are obligated to read Keriyas Shema at all?; and
2. why is it that with regard to Keriyas Shema we are told first about the obligation of Keriyas Shema at night but for the berachos which are said before and after, we are told about the day obligations before those of the night.

The Gemara gives two answers:

1. the passuk in Keriyas Shema states “beshochbecha uvkumecha” so night time for Keriyas Shema comes first, and then since we have started talking about the day we continue in the berachos of the day before returning to talk about the berachos of the night; and
2. the psukim speaking of the creation of the world always put night before day when speaking of the day therefore night comes before day in general in Halachah (Tosafos there state that the second part of the first answer, that we then simply continue talking about daytime prayers is obviously necessary here as well because otherwise we should have continued the berachos of night).

It is the second answer that I would like to talk about. It is not totally accurate that the Halachah always assumes that the night comes before the day. In the world of sacrifices we assume that the day comes before the night; we both eat the sacrifices (often) and finish the burning of sacrifices the night after and that is not considered for these purposes a separate day (Tosefta Zevachim 6, 15). Furthermore, in the fifth perek of the Maseches Berachos we hear first about the prayers which come in the morning first, and only afterwards afternoon and night (Mishna Berachos 5, 1). The difference for davening is easy to explain, since the obligation for davening is partially derived from the obligation for sacrifices (Gemara Berachos 26b) so it makes sense that the obligations would be expressed in this sense differently. However, that does not explain the basic difference between these different institutions. Why is it that instead of the simple and seemingly sufficient local answer for why the Mishna was expressed the way it is, the Gemara chose a far more global answer, and what does that teach us about the nature of Keriyas Shema as an obligation?

I heard from Rabbi Dr Avi Walfish once that the relationship between kodesh and chol is a central topic of perek Oso Ve’es Beno in Chullin. There we find the following Mishna:

משנה מסכת חולין פרק ה משנה ה

יום אחד האמור באותו ואת בנו היום הולך אחר הלילה את זו דרש שמעון בן זומא נאמר במעשה בראשית (בראשית א) יום אחד ונאמר באותו ואת בנו (ויקרא כב) יום אחד מה יום אחד האמור במעשה בראשית היום הולך אחר הלילה אף יום אחד האמור באותו ואת בנו היום הולך אחר הלילה:

He explained this Mishna based on that contention. There was a need to explain that Oso Ve’es Beno would apply to the general day of creation and not the specific day of sacrifices since the entire world of shechitah seems to derive in large part from the world of sacrifices. This time is the time of the creation of the world. The time depicted here is cosmic. On the other hand, the time of sacrifices where the night follows the day is human time, it is the time of human experience. We experience a day not as night and then daytime but as the time from when we get up in the morning until when we go to sleep at night once it is already dark. In human experience the night follows the day.

If the time of Keriyas Shema is determined by cosmic, objective time, a statement is made. Keriyas Shema is a reaction to the cosmic order. When one sees the wonderful world that G-d has created, that He rules over, the natural reaction is to proclaim His  kingdom and accept the yoke of His service. That is the very essence of Keriyas Shema (Mishna 2, 2). On the other hand, sacrifices are not necessarily an instinctive reaction to the creation of the world. They are crucial precisely because they have a certain artificial feel. Not only is the initial, instinctive, awestruck reaction important. The follow-up, the continuation, which will of necessity be contrived, must also occur. Without that, the initial reaction will not have staying power. This then, is the task of davening. First we express our awe at G-d’s creation, and then we follow up with the hard work of maintaining that sense of awe for the rest of the day.

The Role of Witnesses and the Court – Making a New Reality

In today’s daf (Sotah 31b) appears a well known rule: every time that the Torah believes a single witness, his words is accepted as though it were the testimony of two witnesses. The line as it appears in the gemara is:

תלמוד בבלי מסכת סוטה דף לא עמוד ב
אמר עולא: כל מקום שהאמינה תורה עד אחד הרי כאן שנים, ואין דבריו של אחד במקום שנים!

Rashi comments on this:

רש”י מסכת סוטה דף לא עמוד ב 

כאן בבת אחת – מתני’ כשהעידו שניהם בתוך כדי דיבור דבטלו דבריו מיד דלא נתקיימה עדותן בב”ד והיכא האמינהו תורה כשנים כגון אם העיד עדותו ויצא דתו לא מצי חד לאכחושיה.

The simple implication (as Tosafos point out here) is that the testimony is viewed as true immediately. The problem is that in Yevamos there is a Gemara which implies that when it comes to a witness giving testimony that a woman’s husband died we only believe the witness absolutely after an official decision has been taken on the part of the beis din to allow her to remarry. Based on this, Tosafos give a different opinion:

 תוספות מסכת סוטה דף לא עמוד ב

נראה לפרש הכא בזה אחר זה שקיבלו עדות הראשון והורו ע”פ עדותו מיהו תימה עולא גופיה דאמר הכי אליביה תני לא היתה שותה מה דוחקיה למימר הכי והא מתניתין לא משמע ששהה השני אחר הראשון עד שהורו ואסרוה עליו ואמרו אינה שותה וי”ל דמתניתין בסתם קתני אי נמי רבי יצחק ועולא הוה מתרצי לההיא דהאשה זוטא כדמתרצי אליבא דר’ יוחנן בפ’ שני דכתובות

Essentially, they state that the halachah dictates that we would only believe a single witness absolutely after a decision has been taken based on his testimony.

Tosafos and Rashi here argued about a very fundamental issue; do we view the witnesses as clarifying the events which took place to us, and we believe them to any extent the Torah tells us to (Rav Asher Weiss has an essay on this topic on Parashas Mishpatim)? Alternatively, do we see the court as creating a new reality based on their testimony? This debate is current both in batei din and in modern secular courts. Do the courts create legal realities, such as a marriage, or ownership, or do they merely respond to events and clarify the things which have anyway happened?

The Holy King and the Transcendental God

The Gemara in Berachos 12b records a Halacha that during the Asseres Yemei Teshuva one should replace “ha’el hakadosh” with “hamelech hakadosh” and “melech ohev tzedakah umishpat” with “hamelech hamishpat” during shemoneh esre. Over the years a lengthy addition was made to the berachah of “hamelech hakadosh” during Rosh HaShanah and Yom Kippur. However, even before the addition was made, the change in the wording is not easy to understand. The words “ha’el hakadosh” describe G-d as a transcendental force, one who is separated from the rest of the world. The Rav zt”l famously translated “kadosh, kadosh, kadosh” as “transcendental, transcendental, transcendental” (based on the comment of Rashi at the beginning of Parashas Kedoshim that “kadosh” means separate or distinguished). G-d is separate from the world, He is external to the world. His power is so overwhelming that He cannot even be related to. After thanking Him for helping our people through the ages and proclaiming how His goodness is made possibly by His total control over nature, we encounter His awesome, overwhelming, and above all inscrutable, power. That is the G-d of “ha’el hakadosh”. After that, the davening is essentially an attempt to bridge that enormous gap: to strengthen and add texture to our relationship with G-d. So on a weekday we ask Him to give us the knowledge to address Him properly, to repent before Him and be worthy of His presence. On Shabbat, we appeal to Him through the holiness of the day. During chagim we appeal to Him through our own chosenness. If He has chosen us to be His people, He must now provide us with the ability to address Him and, so to speak, to approach His holy throne. Seemingly, this is the subtext on Rosh HaShanah as well (for on Rosh HaShanah and Yom Kippur the middle beracha also starts with those words which speak of chosennes, “ata bechartanu”). However, on Rosh HaShanah and Yom Kippur we find one thing which is very different. On those days, instead of saying “ha’el hakadosh”, we say “hamelech hakadosh.” If so, the following text, “Ata bechartanu”, is not a way of connecting with G-d, it is a way of emphasizing an already existing connection. You are our holy king (as opposed to the inscrutable and transcendental force which controls the world), we say to Him, and You chose us to be Your people.

Let us now consider the additions to the third beracha on Rosh HaShanah and Yom Kippur. The beracha starts as it does on any other day: “You are holy (transcendental) and Your name is holy (transcendental) and the holy ones (Israel and the angels, those who are different) will every day praise You.” However, the beracha then goes on an excursis: “and for this reason all the nations will fear You and they will all bow down to You.” While the progression within most of the addition is easily understood (first the entire world will fear G-d and acknowledge His mastery over it, then they will give honor to G-=d’s chosen people, then the righteous will rejoice and G-d will return to the seat of His kingship on earth and restore the divine presence to Jerusalem) but the place of this addition in a beracha about the transcendental nature of G-d is not obvious. In fact, it seems to contradict that idea.

Towards the end of this addition to the third beracha of davening we find a proof text for the predictions our prayers make and the hope that they express: “May Hashem rule forever, your god oh Zion, for all generations Hallelujah!” This passuk seems to be the best possible proof text to site when talking about G-d’s kingship and so we would have thought that we would then naturally progress to the end of the beracha: “Blessed are you the holy (transcendental) king.” However, that isn’t what happens. The beracha has one more thing to add: “You are holy and Your name is fearful and there is no other god than You.” The dichotomy stairs us in the face, an a solution is provided: “You are holy (transcendental)” and so can’t relate to You, not really. And yet, “Your name is fearful”, we might not be able to relate to You or comprehend You, we might not be able to approach Your holy throne, and yet we can interact with your name. Your name carries an image and connotations. Your name provides the way that we can build our relationship with You. And what characterizes that relationship? “And Hashem the Lord of Hosts will be elevated in judgement and the holy (transcendental) G-d will be sanctified by justice.” G-d’s name provides us with our relationship with Him and that relationship is characterized most obviously by the fact that He judges us for our actions. Through that judgement He can be our “holy king.”

Hataras Nedarim Lomdus and Rosh HaShanah

In today’s daf (21) of Nazir the Gemara discusses the statement in the Mishna that if a wife makes a neder to be a nazir and afterwards her husband says “ve’ani” to mean that he too would like to be a nazir, he can no longer release her from that vow. The Tosafos on 21b s.v. “ela” discuss why. They record two opinions:
1) He cannot release her from her vow because the manner in which he took his vow made his own nazirate vow dependent upon hers, therefore, by releasing her from the vow he would release himself also. This violates the rule that one may not release oneself from any vow (only someone else can release a person from a vow he took) in Chagigah 10a; or,

2) The Tosafos quotes the opinion of Rabeinu Elyakim that it is permitted to release oneself from a vow in this fashion but in this particular case by agreeing to take a vow contingent upon his wife’s vow, the husband effectively agreed that her vow should be binding. After doing so, he can no longer release her from its authority.

The opinion of Rabbeinu Elyakim makes a lot of sense. He’s not really releasing himself from his own vow. By releasing his wife, he indirectly causes the effect that his own vow would no longer maintain its force because it was contingent upon her vow, but that is something which is not relevant to the question of whether he can release her from her vow. It would be including in common parlance under the “law of unintended (or, in this case, intended) consequences”. However, how are we to understand the first opinion? We can understand it by assuming that the rule preventing a person from releasing himself from his own vow is not merely a detail in the complex laws of nedarim. It lies at the very heart of that system. If you could release yourself from a neder you took., then there would be no reason for the rules of nedarim to exist at all. The Torah dictated that if you make a vow, you must keep it. By making that vow you incurred a moral obligation to see it through. If you don’t, then you literally “profaned your speech” (see Rashi on Bamidbar 30, 3). Furthermore, I heard once from Rav Lichtenstein hk”m that the reason for laws which protect the sanctity of speech, ranging from this prohibition to that on lying, is Onkelos defines humans as possessing “רוח ממללא” or “the spirit of speech.” In other words, it is our very ability to communicate in words which defines us. As such, it simply cannot be that a person would so violate his responsibility to respect the sanctity of his own speech by releasing himself from a vow, even indirectly. If an action of his would automatically have that consequence, it must be that the Torah would not allow that action to take effect.

Tomorrow morning we will all release ourselves from any vows we might have taken over the last year. This ceremony seems incidental to the observances of the yamim noraim, and yet it lies at their very heart. By going before a panel to release ourselves from any vows we may have taken over the past year (even if we haven’t kept them through lack of knowledge), we are affirming the sanctity of our speech and our responsibility to respect that sanctity. May that awareness travel with us through the coming year and help us maintain the requisite level of holiness in all our words, not just when we make a vow.

An Interesting Definition of a Day in Today’s Daf

Anyone who has been learning for a while will have realized that for different halachos there are different definitions of the word “day”. In general in the Torah the word “day” means either the daylight hours, or a period from one nightfall to the next. In kodshim, the word day means a night following a day as opposed to preceding a day. Furthermore, the Rav zt”l pointed out (what was really an explicit Riva at the beginning of the fifth perk of Yoma) that the time between sunset and the appearance of three stars might not be a sofek in the sense of us being unable to clarify whether it is day or night. It might really be both and the sofek is which Halacha, that of day or that of night, should we apply. However, the perception of a day in the Tosafos on the daf today is a little different (although perhaps more commonsense).

The Gemara at the end of the second perek of Nazir discusses the opinion of Rabbi Yossi that if a zav or zavah is about to become tahor on the night of Peach (as in they are on the final day of the count and they are within the cases that do not require the bringing of a korban and they have already gone to mikveh) then a Korban Pesach can be slaughtered for them and it’s blood sprayed on the Mizbeach. If they then see either more blood or another seminal emission causing them to become impure again and preventing them from eating the Korban Pesach they need not bring the Korban Pesach again during Pesach Sheini even though they did not eat the korban (which we assume is the primary obligation). Accordingly, the Gemara assumes that Rabbi Yossi must hold that the fact that they saw more blood or another emission does not render them retroactively impure for the previous portion of the day succeeding when they went to the mikveh. The Gemara then asks that if they are capable of becoming definitively pure between the times that they see either blood or a seminal emission, how is it that they can have three successive emissions such that they would become impure for a full seven days or be required to bring a korban. The Gemara answers that it must be that Rabbi Yossi will only apply this law if a woman either saw blood continuously for three days or either a man had seminal emissions or a woman saw blood immediately before sunset for three days successively preventing the beginning of a day with the possibility of going to the mikveh. Even if they were to go to the mikveh that day it would not be a “clean” day because they had already seen something so even post mikveh the count could not continue. Rashi in Pesachim 81a ruled based on this that if the night started without seeing either blood or a seminal emission, it would be permitted to count the following day as one of the clean days (as long as nothing was seen for the rest of the day). Tosafos here disagree. They state that the beginning of the night cannot allow us to count the following day, although they seem to imply that it counts (where it is relevant) to allow us to count the previous day as a clean day if we do not need the entire day to be clean. Accordingly, it seems that Tosafos are defining a day as the period we think of as a day – from when we wake up until a bit into nighttime for the purposes of this halacha. For this halacha what matters more is not the formal definition of a day but the experience of a day.

If so, the problem the Gemara had with Rabbi Yossi’s opinion was not that you could count the start of a day as pure and thus prevent the later sighting from being added to the previous sighting . The problem the Gemara had was that the successive part of the day after a sighting and after a person went to mikveh could allow that day to be counted as a clean day (except in cases where you need a full clean day such as zavah gedolah) and accordingly, the answer the Gemara gave was that the sighting must have happened at the end of the day so there would be no time before nightfall in which to consider the day clean, not that the sighting happened the previous day right before nightfall so that the beginning of the night was not clean.

Why is Vidui Maaser a General Accounting of One’s Spiritual Life?

The mitzvah of Vidui Maaser has many surprising aspects to it.  I am still unsure about some issues and would appreciate some insight.  At the end of Pesach in the 4^th and 7^th year of the Maaser cycles, one does Biur Maaser and then says Vidui Maaser.  He declares that he has not violated any of God’s laws, presumably those related to terumot and maasrot, but we will return to this presently.

First, there is the basic question of why declaring to God that you have not violated any laws is called Vidui, confession, a word usually associated with confessing sin.  This is especially as the Mishna rules explicitly (Maaser Sheni 5) that one cannot say Vidui if he did do anything wrong.  The Minchat Chinuch (607) argues that in fact one must have done something wrong – namely that he delayed giving Terumot U’Maasrot such that he had to deal with it later on.  Even though this is no per se assur, it is problematic enough to warrant confession, and not too problematic to make it assur to say the Vidui. 

Avadim and Kedushat Yisrael

There is a machloket Rishonim and poskim whether women can make berachot on positive time-bound mitzvot from which they are exempt. Ashkenazi psak generally follows the position of Rabbenu Tam that they can, and Sefardi psak generally follows the position of Rambam that they cannot. The Gemara derives that the an eved kenaani has the same level of obligation in mitzvot as a woman. The Rav claimed (I have heard this from R. Lichtenstein and R. Rosensweig, and it is found in Eretz HaTzvi page 140) that despite this similarity, no one would agree that an eved kenaani could make a beracha. He claims that women, while technically exempt from some mitzvot, have full kedushat yisrael, so if they choose to engage in optional mitzvot, they can still say that God commanded “us.” An eved, on the other hand, has at best a partial kedushat yisrael, so he cannot say berachot. He can not say that he was sanctified and commanded along with the Jewish people. While there is a distinct logic to this argument, it is difficult to claim that we derive the level of obligation from one to the other, but not the nature of the obligation. More importantly, I discovered this week that the Rambam explicitly rejects this claim about kedushat yisrael. The context of this teshuva is hafrashat terumah – where he permits avadim to separate terumah.

Some thoughts on Yom Tov davening

Seemingly, davening on special days should reflect our primary experience of the day. As such, on Shabbos we say “mekadesh haShabbos”. Similarly, on Rosh Chodesh we say “mekadesh Yisrael veRashei Chadashim”. On Rosh HaShana we both name God as king of the world and name the day (Yom HaZikaron, its biblical name) and on Yom Kippur we not only name the day and proclaim God king of the world but also celebrate his forgiveness. As such, one might have expected that for the Shalosh Regalim (Pesach, Shavuos and Sukkos) we would name the day at the end of the bracha in davening, the most important part of the bracha. However, we don’t. Instead, we have a generic label for all three holidays which seems to proclaim their sameness, not their uniqueness. Furthermore, the entirety of the davening for these three festivals seems the same. While we do (twice) name the specific festival we are celebrating, the wording of the prayers doesn’t distinguish between them at all. Why is this? It would seem that the primary of experience of Yom Tov (which our davening should reflect) is just that, a Yom Tov.

An interesting test of this premise could be the Gemara in Eiruvin 96a. There the Gemara states the (normative) opinion of Rabbi Akiva that one is exempt from the Mitzva of Tefillin on Shabbos and Yom Tov because Tfillin is an os, or sign (according to the Rid it is a sign that we keep the mitzvos) and so too Shabbos and Yom Tov are an os (from God to us). The Tosafos there ask whether this applies to Chol HaMoed because it features a very limited probation on melacha as well as the mitzvos which characterize the festival such as eating matzah or sitting in the Sukkah. They prove from a Gemara that seemingly there is no such exemption on Chol HaMoed. Seemingly, if these mitzvos were sufficiently a sign so as to preclude the need for the sign of Tefillin they would be more prominent in our davening as well. As such, it would seem that they form only a secondary layer to our experience of Yom Tov.

It should be noted that the Behag and the Zohar both state that Tefillin should not be worn on Chol HaMoed seemingly contradicting my analysis. Also I think that what I wrote here explains nicely the reason why Chol HaMoed our only mention of the chag features its particular description, either Chag HaMatzos or Chag haSukkos. On Chol HaMoed our primary experience of the festival is really through its own unique mitzvos and not through any issur melacha, and as such, that is what our davening reflects. Just some musings from Yom Tov

Two Days of Yom Kippur

In the Kollel this week, I gave a shiur on a topic that appears as a side point in the beginning of Masechet Challah (1:1 in the Yerushalmi), but is relevant to this week – namely why we generally do not keep two days of Yom Kippur (as we do by all other Chagim), and why some people did.  The shiur and sources are available here.

I will not go into all the details, but I want to mention one position that I did not develop there.  I noted that it seems to be that many of the Rishonim who kept two days of Yom Kippur seemed to have done so as an expression of general piety, rather than actually as an expression of Yom Kippur (a claim made most forcefully by Professor Ephraim Kanarfogel, who first showed me the prevalence of this minhag in Ashkenaz and the implications it has).  This fits well with the minhag recorded by the Rokeach to fast throughout the Aseret Yimei Teshuva.  The Tashbetz Katan even notes that keeping two days of Yom Kippur could only become binding if one kept it as two days of Yom Kippur and not if he kept it because he always fasted anyways.  This implies that were at least some people who fasted on what would be day two of Yom Kippur as an excuse to do what they were inclined to do anyway. 

Can There Be a Machloket About Reality?

Briskers are very adamant that there cannot be a machloket bemetziut, a dispute about realia in the Gemara (or for that matter Rishonim). After all – they should have just checked and resolved the dispute! However, it has always seemed to me that this is unlikely. Real people, lay people, jurists, poskim, secular judges, all dispute reality and that effects how they live or establish law. Why should Chazal be different?

The main sugya that usually indicate that there can be a dispute about reality is found in several places(ex. Pesachim 22a):yesh begiddin binoten taam or ein begiddin binoten taam – do tendons have taste? The implications of this relate to kashrut issues of the gid hanasheh. The simple understanding of this dispute is that this is a dispute about reality. The Maharam Chalavah, however, argues that everyone agrees that it has a weak taste – the dispute is one of standards – how strong does a taste have to be to be legally “taste”? He clearly accepted the Brisker claim. However, many Rishonim did not.