Firstborns, female inheritance and the desirability of halachic loopholes

With my office space sometimes playing host to a visiting “halachic-inheritance” lawyer, I have sometimes been asked to step in to bear witness to the proceedings. These usually involve older individuals or couples apportioning their fortune among their children, and occasionally choosing to cut one of them out of the inheritance. Almost always, there will be a clause which circumvents the biblical law, written near the beginning of yesterday’s Torah reading, which grants a firstborn male a double portion of the inheritance.

While this practice appears both common and beneficial, what are we to think, from a religious perspective, of a biblical law which is treated, for all practical intents and purposes, as a nuisance which needs to be avoided?

A whole two chapters of Judaism Reclaimed are dedicated to contrasting inexplicable chukkim – divine decrees which are usually unique to Judaism – and apparently widespread “mefursam” moral-based laws which lie at the heart of any civilised society. An important consequence of how a law is categorised, I attempt to show, is the likely rabbinic approach to construing and constraining its details.

When dealing with moral mitzvot such as prohibitions against murder and theft, the Talmud typically emphasises the importance of loyalty to the spirit of the law and is highly critical of proposed loopholes and fictions. In its treatment of inexplicable decrees, by contrast, such schemes are not only tolerated but actively encouraged.

One Mishna, for example, demands “How can the law of the firstborn [animals] be evaded?”. Another opens with the teaching that “People may act with cunning with regard to the Second Tithe”). After examining many examples, it emerges that the harder it is to fathom the reason for a law, the less one can object that a proposed loophole is in breach of its spirit – whatever that spirit may be.

One particularly interesting discussion relates to laws which might once have been regarded as “mefursam” or “mishpat” but are no longer widely regarded to belong to this category. Judaism Reclaimed debates whether the halachic categorisation of biblical sins such as homosexuality might now be recategorised as an inexplicable chok rather than the mefursam moral law that once considered it to be. There could be significant implications as to the propriety of any halachic loopholes and attitudes towards homosexual relationships within Jewish communities.

It occurred to me yesterday that the law of the firstborn may also fit this pattern. In the ancient world, the firstborn male fulfilled an important role in running the household and bore far greater familial responsibility than his siblings did. In such a reality, granting him a double portion of inheritance might be regarded as morally justifiable and correct.

As societies changed and the firstborn lost his outsized responsibility, the biblical law of course remained applicable. But could it now be seen as a chok rather than mishpat? To represent a more symbolic idea rather than embodying a practical moral principles? If that is true then we can understand why circumventing it in practice is not regarded as objectionable – unlike, for example, the severe Talmudic criticism of those who use loopholes to circumvent their charitable obligations to the poor.

Such loopholes might even have some Talmudic precedence. While daughters do not inherit alongside their brothers under biblical law, it is clear from Talmudic passages in Ketubot that daughters received a dowry from the estate in accordance with what it is assessed that the father would have granted them (or 1/10th of his possessions according to some opinions). The Gemara on Ketubot 52b explicitly regards this as a rabbinic amendment of the biblical law which grants inheritance to sons ahead of daughters.

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How can a rabbinic ruling be binding in a post-Sanhedrin era?

Yesterday’s Torah reading contained a passage of fundamental importance to the notion of rabbinic law: that of the Rebellious Elder. We read of how, when a difficult legal question of any kind arises, it is to be sent to the judges present at the Mikdash whose ruling is then considered strictly binding.

Relatively few of the rabbinic laws, interpretations and decrees which are observed today, however, can be knowingly traced back to a Court seated in its Chambers of Hewn Stone – its Mikdash headquarters. Most of our Halachot reach us through the Mishnah and Talmud which were compiled by gatherings of sages long after the Sanhedrin had departed from its scripturally envisaged location.

So what exactly are the required qualifications of a Court or gathering in order to make its rulings halachically binding? This is a question that both Judaism Reclaimed and Talmud Reclaimed grapple with.

While it may seem obvious to us today that rulings of the sages can bind us even when the Sanhedrin has been exiled – or even ceased to function – this is not entirely evident from the Torah’s text and may once have been a matter of dispute. In the famed episode of the oven of Achnai, Rabbi Eliezer refused to accept the majority ruling of his colleagues, instead calling successfully for miraculous confirmation of his lone opinion. Commenting on Rabbi Eliezer’s position Ramban states remarkably that, had such an episode transpired at a time when the Sanhedrin was seated in its Chamber of Hewn Stone, Rabbi Eliezer himself could have been tried as a Rebellious Elder! Was Rabbi Eliezer essentially challenging the notion that a Sanhedrin in exile could issue authoritative rulings?

The settled position of Jewish tradition has granted Sanhedrins such authority even when they are not located in their scripturally-ordained Mikdash chambers. Presumably, their location is understood to represent an ideal rather than a mandatory condition. Such a suggestion might draw support from the group of 70 sages established by Moshe in the desert (and which likely presided also in the years immediately following entry into the Land) which lacked any formal chambers. It also seems likely that the Sanhedrin of the Hasmoneans – sometimes based outside Jerusalem – and perhaps the Men of the Great Assembly issued binding rulings from alternative locations.

As well as the Court’s location being forgone as a critical requirement, we see that its priestly character was also viewed as an ideal which could be set aside rather than a strict requirement. While the Torah states (Devarim 17:9):

“And you shall come to the Levitic kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment.”

Rambam confirms the rabbinic position (Hil. Sanhedrin 2:2) that while it is a mitzvah for there to be Priests and Levites present on the Court, “but if appropriate ones are not found, it is permissible for all the judges to be Israelites”.

By the time we arrive at the Mishnah and Talmud, the criteria for binding and authoritative rulings are again applied more loosely. The Court of Rabbi Yehuda HaNasi was not a formal Sanhedrin. Yet it was unanimously deemed authoritative in that it included all of the nation’s greatest sages, who voted on and established laws which were considered to be binding.

What might be the basis for this?

According to Rabbi Yosef Karo in his Kessef Mishneh commentary, this binding status arises from some kind of collective acceptance of the laws legislated by the Mishnah. A process which was apparently repeated at the sealing of the Talmudic era thereby imbuing its conclusions with binding authority. But how was such an acceptance reached and on what basis could it be supported in the Torah and transmitted tradition.

Rav Elchanan Wasserman and Rabbi Jose Faur opt for an alternative suggestion – one which seems to have basis in the Epistle of Sherira Gaon. According to Rav Elchanan, the fundamental feature of a Sanhedrin which lends it legal importance is that embodies “National Rabbinic Authority”. Such a status can be achieved through a formal Sanhedrin body, whose rulings are binding. But this is not the only way. If a gathering of sages is unanimously approved by all of Israel, this can also grant it Sanhedrin-type status.

Such wide approval appears to have been achieved by Rabbi Yehuda HaNasi’s Yeshiva which voted the Mishnah into Jewish law. Similarly, writes Rav Sherirah Gaon, the rulings of the Sura yeshiva of Ravina and Rav Ashi assumed binding authority due to the fact that all other Babylonian academies subordinated themselves to it. As the Gemara itself notes, “there was not found Torah and greatness in one place” from the time of Rabbi Yehuda HaNasi until Rav Ashi. Therefore what preceded Rav Ashi “undone” but what Rav Ashi ruled upon would remain permanent.

The unclear factor in all of this is the status of the Yerushalmi and the acquiescence of the community in the Land of Israel. While it is known that the Jews in Israel were suffering severe persecution which led many of them to immigrate to Bavel (including many notable sages) – were there any remaining Yeshivot? Did these Yeshivot, assuming they existed, also accept the authority of Ravina and Rav Ashi? We certainly know of disputes between Bavli and Yerushalmi Geonim centuries later: do these reflect a gulf which can be traced all the way back to the sealing of the Talmud or was it prompted by a community of returning Israelites who sought to resurrect the old Yerushalmi practices and rulings?

And what of the status of the Yerushalmi? We don’t hear of any claim that it gained unanimous acceptance. There was a Sanhedrin (albeit not very active) still functioning in the Land of Israel at the time – perhaps that Sanhedrin is what granted the Yerushalmi its authority. Assuming, that is, that the Yerushalmi bears authoritative status.

The position of the Rambam and Rif is that the Yerushalmi does indeed possess binding authority via one of these mechanisms, but that it was superseded by the “Court” of the Bavli. Therefore, when the Bavli rules explicitly against the Yerushalmi its law is followed. But in areas where the Bavli is either silent or deemed to be insufficiently clear, the ruling of the Yerushalmi remains binding and authoritative.

See more about these books at www.TalmudReclaimed.com

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Tisha be'Av, Tu be'Av and a harrowing hostage account

Just over a week ago, on the night of Tisha Be’Av, I started making my way through Eli Sharabi’s account of his experiences as a hostage in Gaza. The book is direct and to the point, providing readers with the impression that they have a constant birds-eye view of Eli’s suffering and survival techniques throughout his time in captivity.

While the whole book creates a tension and anxiety that makes it difficult to put down, there is one particular passage that jumped out at me from the page. This passage relates how, at one point of his ordeal, he was confined into a small tunnel area together with a number of other hostages. Their captors would provide meagre meals of pitta and dips to the entire group without apportioning food between them.

Eli is struck by the way in which the hostages seem to split into two groups: those who are single and do not have children instinctively grab what they can to assuage their persistent hunger while those who are married with children approach automatically with a different perspective. They identify the needs of the whole group as those of their own and look for a way to apportion the food fairly.

Upon reading this my mind jumped to a teaching in the Tosefta Sanhedrin (chap. 7) that one who is a eunuch or one without children is disqualified from presiding over capital cases. As it was explained to me, a person who is in a full marital and family relationship looks at the world, and in particular, people, in a different way. This is not a criticism of those who are not in such a situation – but it would explain why Judaism (and perhaps religion in general) places such an emphasis on the pivotal role of family.

With Tu Be’Av – often referred to as the Jewish Valentine’s Day – being marked yesterday, it is a timely reminder of how sexual activity is not restricted or seen as negative by the Torah. Rather, the Torah seeks to channel such activity in a manner that minimises its ability to influence the mind towards viewing sex from a purely self-centred perspective. This is why Jewish law promotes sexual intercourse within the strict confines of marriage – a meaningful relationship based on mutual love and respect. In the context of a relationship of this nature, which is predicated on giving rather than taking, an activity which could otherwise embody the most extreme form of self-gratification and even exploitation now becomes an opportunity to superimpose a higher set of values upon the person’s inherently selfish focus.

The notion that sexuality can be profoundly transformed and elevated when placed in the context of marriage is developed by Rabbi Joseph B. Soloveitchik, who writes:

“If you should inquire as to the essence and meaning of the institution of marriage, I would say that through marriage the miraculous transition from the I-it contact to the I-you relationship occurs. Marriage personalizes sexuality as the joint experience of the I and the you.”

It would seem that Eli Sharabi’s anecdote that individuals who have experienced this form of relationship gain an altogether different way of relating to all other people that they encounter – not just those in their immediate family.

Rav Soloveitchik taught in this vein that two different people can perform an identical act of kindness – yet the attitudes that govern these acts can make them effectively worlds apart.

A regular person, he writes, will perform an act of charity, giving a coin to a poor person.

Regarding a normal act of kindness:

“I am committed to genuinely helping a poor man, am genuinely committed to furthering his wellbeing … [M]y personality is still individual, still unique, still all-exclusive. I help out the Thou but he remains other to me.”

For a person who has truly internalised the Torah’s message of loving others as themselves, however:

“my personality shifts from being all-exclusive to being all-inclusive. The poor man is no longer an other separate from me. In God-like fashion my helping him out becomes a way of letting him share in my existence and reality. My helping him out thus becomes an act of imitatio Dei, an act of God-like hesed in the sense that I do not simple give to him, but I identify with him”.

A profound message contained in just one small passage of Eli Sharabi’s powerful and educational account of how to survive and retain one’s human dignity in the most challenging and degrading circumstances.

We continue to pray constantly for the rest of the hostages – including some of Eli’s tunnel-mates – to be released immediately.

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Deification of defacation? The inside story of Ba'al Pe'or

The opening portion of yesterday’s Torah reading concluded told of Pinchas’s exploits and reward – the conclusion of the sorry story of Israel’s entrapment in idolatry and immorality. While all idolatry is strictly opposed and prohibited by the Torah, there is something particularly unusual and unsettling about the worship of Ba’al Pe’or which draws the attention of the sages.

On Sanhedrin (60b), we read that the mode of worship of Ba’al Pe’or was defecation in front of it. In Rabbi S. R. Hirsch’s understanding, such a public act which goes against an innate human feeling of dignity and self-respect was deeply symbolic. It was intended to convey and internalize the message that humans are no different to animals – who feel no shame in publicly defecating. The public display of immorality that followed was a similar failing, not only sinning but performing the sin in a way which belied the usual human feelings of shame of committing sexual acts in public.

The philosophy of Pe’or worship in this telling is a complete abandonment of human dignity and shame – what Rav Hirsch called an almost Darwinian declaration that humans are not distinct from the animal kingdom. In keeping with this suggestion, the prophet Hoshea (9:10) described those who worshipped Ba’al Pe’or as having separated themselves for dedication to shame.

Judaism Reclaimed approaches the episode of Bila’am based on a midrashically-enhanced idea that, as representative prophet of the 70 nations, Bila’am sought to have Israel’s special chosen status revoked. Several verses openly state that Israel was not particularly worthy of leaving Egypt, receiving the Torah and entering the Land in their own right – they were mostly riding on the coattails of the Avot.

God clearly rejected Bila’am’s petition and doubled-down on Israel’s continued suitability as chosen nation to represent His word and teachings the world. Bila’am, it would seem, attempted to have the last laugh – seeking to demonstrate that he could lure the Jews to surrender not only their special enhanced status but even their very human dignity and Tzelem Elokim spark.

In light of this explanation we can gain a new appreciation for the verses stated in Devarim 4:3-4:

Your eyes have seen what God did at Baal Peor, for every man who went after Baal Peor, Hashem your God has exterminated from your midst. But you who cleave to Hashem your God are alive, all of you, this day.

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Ayin Hara: A dangerous spiritual force or behavioural guide?

 few days ago, I received a Whatsapp message advertising the services of an “Ayin Hara lady” who could, it promised, banish any unwanted afflictions caused by the Evil Eye. Molten lead included. All for the small fee of $101!

The advertisement prompted me to recall an excellent Shiur I heard from Rabbi Aubrey Hersh a few years ago on the subject. I also noted that it has relevance to yesterday’s Torah reading, with Bilaam characterised by the sages as having possessed an “Evil Eye”.

Rabbi Hersh’s unexpected source for the concept of Ayin Hara was a series of verses towards the end of Parashat Mishpatim in which we are warned not to oppress or taunt strangers, widows and orphans. If such vulnerable people are mistreated, the passage continues, there will be a measure-for-measure punishment: “My wrath will be kindled, and I will slay you with the sword, and your wives will be widows and your children orphans.” (Shemot 22:23).

Without entering into the many questions that this raises concerning the nature of divine justice, there is a very clear message which can be taken from these verses. If you are fortunate enough to have been blessed with family, health and wealth, then these are blessings which God has showered upon you in order for you to have the wherewithal to improve and develop yourself and help those around you. But what of someone who has been blessed by God and subsequently uses their position in order to taunt and oppress those who are lacking and vulnerable? “If you oppress him, [beware,] for if he cries out to Me, I will surely hear his cry.” (Shemot 22:22).

This then is the reason why one should not flaunt one’s blessings in front of others. Proudly talking of one’s children and grandchildren – or one’s investments and vacations – in front of others in a way that might lead to jealousy and resentment. If people are oppressed because you are blessed, then the “Evil Eye” will cause it to be divinely redressed. It is not a dark or evil force that can be offset by strange rituals of molten lead. It is divine punishment for a severe character failing and misuse of divine blessings which can be set right by, as the Haftarah concluded yesterday, “walking modestly with God”.

Many of the traditional teachings concerning Ayin Hara also fit this model. Yosef was understood to be immune to the effects of Ayin Hara. This imparts an important principle since Yosef did achieve a position of wealth and prominence in his later years but, in contrast to (and perhaps in response to) the behaviour of his youth, his blessings were used to benefit those around him rather than engender jealousy.

The notion that fish symbolise some form of antidote or exception to Ayin Hara likewise makes sense without viewing them as magical creatures imbued with special protective powers. While fish are “blessed with multitudes of offspring” – the prayer recited Rosh Hashanah night asks God to make us as fertile as fish – their blessing is concealed beneath the water and thus not considered to be flaunted at others.

One prominent example of Ayin Hara found in the Midrash is found in the context of Sara and Hagar, where Sara is understood to have “placed an Evil Eye” on Hagar after she conceived, causing her to miscarry. Setting aside the implications for peshat and how literally we approach such a Midrash, this certainly fits the teaching presented here since Hagar, as a result of conceiving where Sara could not, now looks down on and mocks her mistress causing her to cry out in pain to God.

The evil eye here, again, is not about magical or demonic powers but rather it is a profound metaphor for character development, the proper approach to blessings and training oneself to consider the feelings of others.

Bilaam’s association with the Evil Eye is a little more complex. Judaism Reclaimed develops a theory, based on Midrashic interpretation sprinkled with a few hints from the verses, that Bilaam primary complaint against the Jewish nation arose from a form of jealousy. He recognises that they have ancestral merit working in their favour from the Avot and he is constantly attempting to argue that they are not worthy of this special assistance. He wants to present the nations as unjustifiably slighted as a result of Israel’s blessings and cries out to God in prayer as a result.

However, there is an additional dimension to Ayin Hara which is particularly pertinent to our discussion. Rambam, in his commentary to the 5th chapter of Avot (5:19), discusses the reasons why those with “Ayin Ra” are labelled students of Bilaam. There he contrasts the behaviour and attitudes to materialism displayed by Bilaam and Avraham. Bilaam, he points out, was so motivated by the wealth promised by Balak that he rushed over from Syria to curse the Israel; Avraham in contrast, even having fought in the battle of the 4-5 kings to rescue Lot, refused to take even a shoe strap as compensation.

We can right ask ourselves whether a person demanding $101 to perform some magical rite in order to “cure Ayin Hara” is actually perpetuating the very ill that she is claiming to heal.

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Aiming High: Holy Nation and Resurrection

Since God is understood to be aware of our thoughts and feelings, and “probe the inner recesses of our heart”, it is not surprising that Judaism places great value on thoughts and aspirations – not just on a person’s actions. However noble and praiseworthy our spiritual ambitions may be, however, we must be extremely careful not to confuse them with our reality and consider ourselves more worthy than we really are. This, writes Rabbi S. R. Hirsch was the critical error of Korach and his assembly.

Focusing on Korach's statement: "the entire congregation are all holy and have God in their midst, and why have you elevated yourself over the community of God?" Rav Hirsch suggests that Korach's error was to confuse destiny with reality. The Jewish people had certainly been accorded the title of “holy nation”, but this meant only that they had been set aside for a holy purpose, to aspire and raise themselves towards holiness by dedicating themselves to God and His Torah (“tiheyun li” – you SHALL be to Me). The presence of God's Mishkan in their midst gave this holy ideal a symbolic expression, but there remained clearly defined boundaries and rules governing who could enter the Mishkan and when such entry would be permitted.

The danger posed by Korach's claims of equality of holiness and status for each Jew, and universal qualification to interpret the Torah, represented a threat to the entire system and process of expounding halachah. This is because those claims suggested that the nation had collectively arrived at a level of holiness and understanding that obviated any need for religious leadership or guidance in interpreting the Torah. Korach’s assertions drew an emphatic response from God, a miraculous phenomenon to demonstrate unambiguously the fallacy of such claims. This phenomenon was thus intended to make it clear that the nation designated to be holy must rely on the religious guidance of its members who have already succeeded in refining their character and relationship with God.

But while it’s important to have the clarity to distinguish one’s ambitions and goals from one’s reality, there are some scenarios in which Judaism certainly does place strong emphasis on aspirations. One possible example of this is the closing chapter of Rambam’s Hilchot Teshuvah which describes a level of religious worship – out of love and pure motive – that it recognizes are only practically attainable by a small minority of people. It would seem that there is religious value when one approaches the process of repentance in being aware and accepting the nature of higher levels of Judaism even if they are always likely to lie beyond one’s personal reality. On a more practical level, this may also explain the widespread custom that people have of striving to higher levels of observance during the Ten Days of Repentance despite the knowledge that this is a short-term effort that is unlikely to be sustained.

Finally, Judaism Reclaimed dedicates several chapters to the difficult subject of Resurrection of the Dead in Rambam’s thought. One possibility explored is the interpretation of Rambam offered by Rabbi Yosef Albo’s Sefer Ha’Ikkarim. Briefly stated, Rabbi Albo suggests that Resurrection represents an opportunity for those who were honest and righteous Jews yet lacked the life opportunities to develop the sort of spiritual connection to God necessary for an enhanced portion in the World to Come. Techiyat Hameitim, in a future idyllic Messianic era, affords such pious individuals the chance to pursue religious and spiritual perfection under optimum conditions.

Which attributes or merits does one require in order to qualify for this techiyah? Various Talmudic sources appear to support this understanding of Rambam’s approach to techiyah. One Gemara in Kiddushin (39b) identifies two mitzvot upon which techiyat hametim depends: sending away the mother bird and the honouring of one’s parents. These two mitzvot involve basic human character traits and attitudes regarding sensitivity to the feelings of others. This therefore makes them suitable determinants of whether a person deserves to receive another opportunity to maximise his Olam Haba under more favourable conditions. Arrogance, by contrast, is seen as a destructive trait that can prevent a person from receiving a second opportunity of techiya (Sotah 8b).

Another Gemara, in Ketubot (111b), mentions the merit of Torah study being connected to qualifying for techiyah. Crucially, however, it is not specifically the study of Torah which makes one worthy of resurrection: even seeking a connection to Torah study (such as by supporting Torah scholars) will achieve that result. The common denominator of these Gemaras is that what is most crucial in meriting techiyah is one’s attitude and effort. What one is aspiring towards not necessarily what has already been achieved. This can be contrasted, in Rambam’s line of thought, with qualification for Olam Haba itself, which focuses on the reality of a person having achieved an intellectual perception of divine truths.

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