Thursday, May 16, 2019

Emor—Safe, Legal and Rare

In 1995, Rabbi Aharon Soloveichik sent this message to New York State’s then-Governor-elect George Pataki regarding the death penalty:

“…you have the written law mandating the death penalty and the oral law, saying, in effect, that you can never apply it…Now, the death penalty should be there for use in extraordinary situations, in extraordinary threats to the public order…but if [Pataki] acts on the death penalty, he will be the leader of a bloody government.” 

Placed in the middle of a series of verses dealing with torts—which in and of itself seems to be ostensibly acontextual coming in the middle of the narrative about the maternal Danite blasphemer—verse 24:17 in this week’s parsha is one of a multiple set of Torah directives to administer the death penalty for willful murder.

The aftermath of the recent terrorist massacre at the Tree of Life Synagogue in Pittsburgh engendered a broad media-driven discussion regarding the “true” Jewish view of the death penalty.  The consensus presented classical Judaism as invariably abolitionist.  In light of Rabbi Soloveichik’s 1995 letter—whether today’s pundits were aware of his position or not—one might forgive one particular headline/declaration which took upon itself to declare “Prosecutors want the death penalty for suspect in synagogue massacre. Here’s why rabbis oppose it.  It was a bit glib even more them: the paper felt compelled enough to issue the following caveat the next day: “This story has been updated to clarify the breadth of Jewish views on the death penalty.”

More poignant was the published declaration of a Tree of Life congregant whose husband had survived the attack: “The Pittsburgh shooter could have killed my husband. I still don’t want him to get the death penalty.”   While the author of the piece might capture some of the spirit, but she employs several inaccuracies to get there.

“Although there are many Torah prohibitions that call for a death sentence, our tradition does not interpret them literally.”   This assertion is of a piece with the author’s contention that Biblical tort law—as presented in this weeks parsha and elsewhere—was “literally” lex talionis a la Hammurabi, which the halachic tradition contends clearly and consistently was never the case; the author therefore presents an alternative tradition which is at odds with the normative one, both vis a vis tort and capital cases.  At any rate, the corpus of laws that make up the bulk of Maseches Sanhedrin which instruct when the penalty applies and how it is to be carried out indicates that, at the very least, it certainly wasn’t allegorical.  

“According to the Mishnah, a Jewish court is considered bloodthirsty if it allows the death penalty to be carried out once every 70 years, with some of the rabbinic sages balking at ever approving the sentence. (Mishnah Makkos 1:10).”  The author neglects to mention that very mishnah ends this way: '; Rabban Simeon ben Gamaliel said: 'If [no death sentence would ever have been passed], they would have multiplied murderers in Israel.'"  In fact, bas din would administer a standing cell punishment ending in a rather uncomfortable demise for the deliberate murderer whose crime couldn’t be clearly established beyond all doubt by witness testimony, in order to protect the public. There are clearly distinctions drawn between ritual or relational capital offenses, and outright criminal offenses that involve bloodshed, certainly mass bloodshed

The author then cites the example of TB Brachos 10a where Bruria convinces her husband Rabbi Meir to pray that robbers in his neighborhood repent rather than die, and the more recent story of white nationalist Derek Black, who renounced his beliefs after spending time around a Shabbat table at his college.  The author claims that these two narratives should “articulate the Jewish attitude toward those filled with hate.”

They shouldn't, and they don't.

In the case of Bruria, Rabbi Meir and and the robbers, hate wasn’t the issue: it was a public nuisance, not a threat to public order, and the criminals were driven by greed, not hate.  They didn’t present an ongoing clear and present danger to Jews qua Jews.  And for all respect due Mr. Black for his transformation, he hadn’t killed anyone yet; repenting hateful beliefs is of a different order than repenting a hate-driven mass murder.

The author also displays a misunderstanding of what repentance entails: “calling for the death penalty means there is no possibility for the shooter to repent, to change or to improve…I want to affirm that change is possible.”  In fact, the Talmud indicates that the condemned is afforded the chance to confess before the execution, and the sources indicate that Heaven would accept that repentance in a metaphysical sense; but it clearly indicates that is not for the earthly courts to forgive the outrage to the point that the punishment is to be commuted.  It is not up to the author to “affirm that change is possible.” (Ironically, this is sometimes a claim one hears in more right-wing Orthodox circles regarding the possibility of miscreants like sex offenders and domestic abusers to “do teshuva” and who therefore deserve a mitigation of punishment and/or legal consequences, proving this misunderstanding of “teshuva”/repentance is not necessarily a function of denomination.)

In any case, there are strong indications that the clamoring against Bowers’ execution is politically driven, as indicated by the firestorm of criticism aimed at President Trump in the wake of the Pittsburgh attack, and the relatively muted reaction to the Poway attack over Passover, after which the Poway Rabbi praised the President.  In fact, applying the Pittsburgh author’s standard, one might look for more mitigation and possibility of repentance from a 19 year old offender with an adolescent neurology rather than a 46 year old who will clearly remain unrepentant whether or not he dies now or later.  The author herself is consistent: she would afford even Dylann Roof the opportunity to repent.  But the Poway attacks did not engender the discussion that ensued in the wake of Pittsburgh, and one would not be remiss to point he finger at politics.

The author also introduces another red herring, that capital punishment is ipso facto “revenge” : “the true revenge against evil is that our congregation is working to strengthen ourselves as Jews.”  It is not revenge but rather justice that demands the death of Bowers.  Revenge might be if the goel hadam meted out the execution as opposed to the state; either way, there is no doubt that the Torah at least sanctions the notion of blood justice being retributive, even if in a limited sense.

Where does all this leave Rav Aharon’s admonition?  Not to misrepresent this author’s view as his, but one can parse a caveat from his 1995 letter: “extraordinary threats to the public order.”  In a post-9/11, web-driven world, one could proffer that there are more cases of extraordinary threats to public order that would meet an exceptional criterion, both legally and hashkafically.

A contemporary capital punishment that approximates Torah values (for lack of a better formulation) would be safe, legal, and rare. 

“Safe”, in that it would be as antiseptic and painless as possible—the Talmud does say that, under the rubric of “ve’ahavta lare’acha kamocha”, to be “beror lo misa yafa”, that he the earth be as instantaneous and not gruesome, an analog of sorts to avoiding “cruel and unusual” punishment.

“Legal”, in that it follow strict protocols to ensure that the punishment fit the crime and there is no possibility that the wrong person is being convicted—that it be a case where “there won’t be a lot of guilt-innocence maneuverability”, as an Army lawyer described the Nidal Malik Hassan case.  As has been detailed elsewhere in these pages, there is the unexpected appearance of the laws of capital murder, followed by the laws of assault, immediately followed by the exhortation that “mishpat echad yih’yeh lachem”—“you all have one law”:  listing of these cases after the the mecharef, followed by the “one law” exhortation, is a further indication of how the process delineated in the case of chiruf/giduf is as salient a “due process” as one applied in cases of torts and homicide.  As clinical as that might sound, it may be what separates a fully legitimate application of capital punishment from vigilantism.

“Rare”, in that the penalty is applied in cases where strict criteria are met, including but not limited to aggravating factors, where the offender presents an ongoing danger to the public, and where it makes eminent sense to make an offender pay the highest price, even if as a principle as opposed to a deterrent.

This is not to say that the US’ version of the death penalty is always in consonance with Torah law, or even that the abolitionist view is irrevocably at odds with halacha.  It might be possible that the Bowerses, Earnests and Hasans of the world could be the exceptions that prove the rule.  However, it is equally disingenuous to claim that Torah unequivocally supports a complete moratorium on capital punishment in all cases nowadays.  It is especially painful when Jews use those who commit Judeocidally motivated outrages as a paradigm for applying Jewish principles to advocate for said abolition.  It is as much our right and privilege to not forgive those who commit those outrages, and it would further behoove us to not afford the persistently unrepentant the opportunity to change.

Even on pain of death.  Theirs.

Friday, May 3, 2019

Acharei Mos—The N-word

Shalosh seudos, UWS shul.

Rabbi: “If people on a date would be as makpid on Leviticus 18 as they would be on the hechsher of the restaurant…”

Congregant (sotto voce): “Did he just say the N-word?” 

How do you solve a problem like Negiah, especially the unwanted kind?

Eliminate all extra-marital, extraneous communication between genders, especially during teen-age years, and insist on dress codes with varying levels of rigidity?  While one might think that it mostly works, and that there is no deviation from normative behavior in those communities, one would simply have to look at the narratives of more high profile offenders and communal efforts to spare consequences for that whole approach to be called into question.

Suggest that “covering up” will solve the problem? There couldn’t be a more blatantly obvious “blame the victim” approach.

Suggest that “rape culture” is solely the result of “buyer’s remorse” following an unsatisfying hookup, and would be solved if women would behave, while just accepting that “[m]en are creatures who seek physical gratification in the first instance and who, lamentably, could find intimacy with complete strangers and be satisfied”?  If a spiritual eminence wants to attack what he thinks is the over sexualization of the campus and culture, he might a] address that both genders need to behave and b] if he desires extra credibility vis a vis these matters, he might think twice about writing letters to mitigate the sentence of a sex offender who used an educational position to prey on minors.

(TB Kesuvos 10a relates that a newly married groom came to Rav Nachman to complain that his bride wasn’t a virgin.  The first thing Rav Nachman did was give the order to “Lash him with date branches! If he knows this, he must be regular with the harlots of the city!”  A clerical interest in reigning in both male and female sexuality—even making a token effort to recognize it—would be a more credible approach than throwing up one’s hands at the behavior of “men creatures”.)

Suggest that “yichud” might work better than “modesty”?  It won’t work if the predator is a relative, or if the predator is a position of power and can manipulate the environment to his—or her—advantage.

Assume that everyone is shomer negiah”?  Ban all contact—even handshakes—from the workplace?  That it assumes that adult interaction and consent is impossible for anyone, leading to sanctions being levied at inappropriate times, which obviates both the need to draw lines, or the notion that lines have been drawn. 

Set higher strictures on touch because “touch is a potent marker of social power”, and turn shmiras negiah into a social justice mandate?  That would reduce human communication to yet another material currency in almost Marxist terms, and finish the job that pop culture seems to have done with sexuality: make it another currency.  Additionally, the statistics cited by the ostensible social justice warrior advocate for shmiras negiah regarding the incidence of assault within families and by familiar intimates indicate that it might be in those spaces where the restrictions are more palpable and the lines are more clearly drawn that there might actually be more danger.

Is the primary goal, then, a completely touch free-environment?  Is the primary goal drawing distinctions between consent and harassment?  Or, do halachic values mandate that the two are one and the same?

The real issue—and which educators might be able to use as an objective to reach the goal of the “touch-free” environment that they teach as demanded by halacha—comes from the “assumption” suggestion:

It then becomes a question of simple grown-up derech eretz: when someone says no, the answer is no.  At that point it doesn’t matter anymore what the motivation is.  And—if one assumes something along the lines that “no means yes”—it then progresses from a derech eretz issue to a police matter.

Similarly, for too long the price of ostensibly excessive female sexuality has been a lot higher than male randiness.  If nothing else, #metoo has led toward redressing that balance.  There have certainly been excesses and injustices in that pursuit (although the persistent reluctance to punish rapists almost hands a pischon peh on a silver platter to such progressive activists), but leveling the social price for extracurricular carnal activity on the part of both genders in a more equitable manner should be considered an appropriate educational objective, especially in the #metoo era.

Finally, one shouldn’t discount the power of bad publicity.  When R’ Yochanan ben Zakkai was on his deathbed (TB Berakhot 29b) he gave his students the following blessing: May it be His will that fear of Heaven should be upon you like fear of people…[w]hen a person sins, he is concerned that no one see him.”   One day, “conquest” and procurement will go the way of slavery and polygamy.

In the meantime, derech eretz and R’ Yochanan provide the baseline.

Thursday, March 28, 2019

Shemini—Ex Post Facto?

“I didn’t know it was illegal.”
“Then why take the money in a brown paper bag in a dark back alley?”
“I had a hunch.” 

One of the reasons given for Nadav and Avihu’s death is that they performed their service while intoxicated.

The question was raised at a morning minyan in my neighborhood this week: did G-d as it were execute Nadav and Aviv for an ex post facto violation?  Wasn’t the command to not drink on the job given to Aharon after his sons’ deaths?  And furthermore—wouldn’t the punishment of the Dor Hamabul also qualify as ex post facto, if the seven mitzvos were given to Noach after the flood?

There are two possible approaches in both cases: one, parrying the notion that the violations were ex post facto; the other, that what led to the imposition of capital punishment was ostensibly extra-judicial, but justified on different grounds.

With regard to the Dor Hamabul: TB Sanhedrin details how the Seven universal (Noahide) Mitzvos were actually encoded into the text of Parshas Bereishis in certain directives given to Adam, indicating that there was some knowledge of those mitzvos in some form even if less formally codified than, say, the sin of the Etz Hada’as.  So in that scenario, ex post facto is less salient: the laws did already exist.

However, even if one grants for argument’s sake that the Seven Mitzvos were technically and chronologically Noahide, one can—as it were--“justify” the Heavenly punishment on the following grounds: the conduct of the Dor Hamabul had risen to the level of perpetual egregious criminality in areas that render one a rodef, as detailed in Bereishis 6:1-8 at the end of the parsha; Rashi’s explanation in 6:13 that “their fate was sealed only on account of their sin of robbery” hints that there was no longer an either de jure or de facto attempt to maintain social order; G-d then read his version of a “Riot Act” with a 120-year warning, with no discernible change in behavior. (You can’t really give hasra’ah for an ex post facto, but we’ll leave that for now.)  The entire society was, as it were, terrorist.

With regard to Nadav and Avihu, a technical argument could possibly be made that the intoxication law was given at Sinai, and based upon how the laws were transmitted as per Rashi on Shemos 34:32, it would be more likely than not that even if Bnei Israel didn’t learn the law, the B’nei Aharon did, as they received the lessons first.

Even if, however, somehow that message was not yet transmitted or received, one might venture that the technical infraction which warranted the punishment wasn’t the intoxication, it was the resulting unauthorized innovation in the service, as per the text in this week’s parsha (10:2) and later on in Acharei Mos (16:1).  The intoxication might have been one of the factors leading to them making the decision to innovate; the (re?) commandment of the mitzvah to Aharon as the ostensible reward for his demimah might have also served as a wakeup call of sorts to the rest of the Kehuna (“NOW do you get it?!?”).

It might also be possible—and this might serve as a connection, however tenuous, between the theoretical ex post facto infraction of the Dor Hamabul and the B’nei Aharon—as much as the mitzvah being given to Aharon was a reward for his demimah, it also might have been a painful reminder of the result of failures in education and transmission.


Aside from both the possibility that there was a command to remain sober that was ignored, and that an uncommanded initiative was certainly performed, the midrashim detail that Nadav and Avihu harbored some inappropriate motivations in terms of their privileged status as Kohanim which had led them to reach certain unfortunate conclusions about themselves (no one was suitable enough for them to marry) and even their mentors (they wondered when Moshe and Aharon would die so they could take over).  Something was getting lost in the transmission even beyond staying sober in the “workplace”.

Similarly, all sorts of transmissions were clearly lost on the Dor Hamabul; whatever relationship Adam had with G-d, and whatever was transmitted, had been lost since Dor Enosh when pace Rambam the first moves toward idolatry were made, until the point where there was no longer a society worth preserving.

Going back to the original question, the speaker wondered what the message could be if one grants that ex post facto punishments were legitimiate in these cases.  He opined that on occasion one has to intuit what might be right or wrong beyond having to have someone—even G-d—tell you so.

In theory, this could be dangerous on several levels, even going back to these narratives: Nadav and Avihu’s ultimate infraction was that they did intuit an uncommanded action, even though their on-the-spot motivation gets a kaf zechus treatment in some quarters/sources; the “final straw” of the Dor Hamabul was that all of them thought they had figured out a way around being held accountable for theft.  One should remember that “your conscience” is still “your conscience”: the ego/id will often too easily hijack or co-opt one’s superego.

Yet one can refine his point: if one begins to intuit a dilemma, more often than not one will—or should—be able to pinpoint what is the impetus for the dilemma; more simply and crudely put, “What might I be doing wrong here?” usually should suffice, the fact that it more often than not does not notwithstanding.  What might have happened instead is that prior knowledge of details of what was appropriate and not had been lost due to a combination of X factors that led to that knowledge being lost; one had either become intoxicated, whether chemically or spiritually or attitudinally, like Nadav and Avihu; or the transmission of important precepts can get lost or distorted, as the Dor Enosh’s misconceptions led to the Dor Hamabul’s thorough social corruption.

In any case, certainly nowadays, there is little no recourse to an ex post facto defense for transgression.  Even in situations where there ostensibly seemed to be—like these two examples—one can almost always find the proximate infraction that elicits the punishment, even capital, often without too much research.

But maybe Bruce Springsteen presents the simplest formula: 

“There's always somebody tempting somebody into doing something they know is wrong.”

They know.

Wednesday, March 20, 2019

Purim, Progsplained (cross-post from Times Of Israel)

[After posting this on TOI, it occurred to me that I was giving too much credit to the "P'shat wins" camp.  In truth, "p'shat" in the text of Megillas Esther gives very little indication that Vashti was harassed, beyond a refusal to obey a royal request/command; without medrash, there's no hint of a #metoo scenario at all.]

One of the central precepts of Purim is to render oneself so intoxicated “until one can no longer distinguish between ‘cursed be Haman’ and “blessed be Mordechai’.”
More recently this intoxication seems to start a bit before the holiday: there seems to be a tendency to whitewash certain femalefactors past—Vashti; and present—AOC.
One must ask: whence the urge to rehabilitate?  Why does Vashti especially conjure up the impetus to be dan lekaf zechus (judge favorably?)
Queen Vashti’s status as an ostensible feminist icon goes back to the First Wave of Feminism in the 19th century, attributable to Elizabeth Cady Stanton.  More recently she has been elevated to honorary #metoo martyr owing to her having stood up to unwanted male attention.
The narrative in TB Megillah surrounding the #metoo incident: Achasverosh makes some clearly offensive remarks about his Queen that would qualify as harassment at the very least in any setting; Vashti certainly has the right to say no, and her retort about the King’s inability to hold his liquor as compared to her royal forebears’ stable boy (and the implied subtext that she was likely mocking his ability to perform in the royal bedchamber, especially when in his cups) certainly qualifies as a worthy riposte.
So—taken in isolation, which is how the incident is presented in the text—the #metoo-ers might have a point.  (Or, as a Facebook sparring counterpart claimed, “P’shat wins”.)
Except that: Bibliteralism is never a Jewish value.
The Purim story categorically has to occur before the Megillah was written, ergo the text has to be subservient to the oral tradition.  To chain oneself to a closed basic reading of the text without the tradition does a tremendous disservice to the actual “P’shat”, both of the text itself and the actual narrative.  Ergo, the Talmudic and midrashic narratives are the ones that actually “win” over the text.
That tradition overwhelmingly presents Vashti as a scoundrel and enemy of women who didn’t have royal pedigree (here was another area where she was ahead of the curve: slut-shaming those below her “class”.)  Which might explain why there’s an element of Divine poetic justice in her ultimate comeuppance as a result of her suddenly diminished beauty, as payback for her maltreatment of her female charges.  Not to excuse Achashverosh for his overall maleficence (pun intended), but no one is trying to make an icon out of him.
Ultimately, Vashti is hardly a role model for either gender; her apparently justified impudence owes as much to political power dynamics as it does to ancient Levantine male privilege.  Her entire relationship with her husband is bidirectionally parasitic: Vashti is trying to recover the royal status lost when Balshazar was overthrown; Achasverosh is trying to accord himself legitimacy in order to compensate for being a usurper.
In one debate last year, Vashti was compared to a female Harvey Weinstein.  More appropriate might be a cross between Serena Joy as “feminist” and Roy Cohn as “victim”.
Additionally, not only does an ostensibly restrictive “p’shat” reading of the Megillah that holds up Vashti as a “feminist” violate the narrative, it also egregiously shortchanges the true heroine and namesake of the story: Esther.  While she may not check all the progressive and #metoo boxes in her response to being forced into the King’s harem and sexual service, her prudence and guile actually underscores her actual character and how proactive she really was.
While she has to be prodded into taking initiative, when she does she all but issues a p’sak (the 3-day fast), and she even wants to go far as calling out the King (“ish tzar ve’oyev”), but is apparently redirected by an angel–she never forgets who the real enemy is, even the one she has to sleep with.  She’s not exactly a “b’nos Tzelaphchad” feminist either, working within the system: she is pulls all this off while in a very public extramarital liaison (a forced one, to be sure) with a non-Jewish king–which, according to the Talmud, she uses to scare the Jews into doing morefervent teshuvah.  Talk about “outside the box”: if Vashti was “revolutionary”, Esther was smart.
Finally, as the Megillah was written by Mordechai AND Esther (need we mention it having been named for her?), any notions of “mansplaining” are more than canceled out both by that fact and by the nearly two-century old impulse to progsplain the Purim narrative.
Which is why Rabbi Avi Shafran’s recent insistence on taking AOC’s tweets as “p’shat”—especially since he clearly has no truck with progressivism—is so surprising.  Ad d’lo yada AND venahafoch hu?  It didn’t look like Purim Torah. 
Again, one must ask: whence the urge to rehabilitate?  Why does AOC especially conjure up the impetus to be dan lekaf zechus?  One doesn’t even need to use Jewish issues to paint AOC as a villain: there are tons of other reasons.
Rabbi Shafran links to a HaModia piece in order to criticize it for lumping AOC in with the Omar-Tlaib axis of evil, but he fails to address the key charges that are clearly laid out:
“A week ago, after speaking with noted anti-Semite British Labor leader Jeremy Corbyn, Ocasio-Cortez gushed, “It was an honor to share such a lovely and wide-reaching conversation with you.”…Throw the Women’s March into the mix and you have a veritable smorgasbord of progressive female representation of anti-Semitism.” 
Oy lerasha, oy lishcheno (woe to the evildoer, woe to the neighbor); maasim mevarerim zu es zu (actions prove one another): each principle by itself should override any notion of being dan AOC lekaf zchus.  Kal vachomer when both against one.
And, for the sake of bipartisanship enough, here’s a progressive who recognized the real import of of AOC’s tweet, who recognized what Rabbi Shafran refuses to:
“Liberal Jews aren’t concerned about criticism of Israel. We do a lot of that ourselves. We’re terrified of members of Congress using anti-Semitic tropes that have gotten our people murdered when they criticize the Jewish state.” 
Contra Rabbi Shafran’s insistence that “It would be a regrettable irony if some of us who care deeply about Israel, in fits of zeal, carelessly pushed her in that dark direction”, some very far to his left recognize that she is already there.  The open alliance with evil is obvious.
Also contra Rabbi Shafran, p’shat of the AOC tweets aren’t just what’s on the surface.  In addition to her overtures to Corbyn, and open alliance with Omar and Tlaib, her unequivocal support for the Gaza “demonstrators” at the border should be further proof of AOC’s Judeomisia.  Like AOC, Rep. Omar now has come out for the 2 state solution.  Was Omar lying then or is she lying now?  Why would AOC not be as prone to dissemble as Omar?  As no less a terrorist than Yasser Arafat said: “I would kill for my cause; you don’t think I would lie for it?”
Rabbi Shafran concludes thus: “every person – even a “progressive” – deserves to be judged impartially.”   The evidence impartially disproves his point.  Further: having just read Parshas Zachor, one can be reminded of two of the major mistakes that King Saul made in the war with Amalek, as delineated in the Haftara (I Samuel 13): being merachem al hach’zarim (merciful to the cruel) and al tihyeh tzadik harbeh (do not be righteous overmuch).  For those who are clearly our sworn enemies, being dan lekaf zechus is clearly “Jewishly wrong, not to mention counterproductive”, but also dangerous: “Rabbi Yoḥanan says: The excessive humility of Rabbi Zekharya ben Avkolas destroyed our Temple, burned our Sanctuary, and exiled us from our land.”

Friday, January 25, 2019


There are two moments in this week's parsha central to the narrative of the revelation and transmission that establish a baseline: Torah is essentialist and binary.

(The much-touted “six genders” theory proves the binary rule: the androgynos is forced to follow the chumras of each gender; the tumtum, whose gender is undetermined, is ultimately either one or the other; the saris is male; the ailonis female.  But we digress.)

Yet it is that very binarism that makes it flexible towards what one might term either “Orthodox feminism” or “feminist Orthodoxy”.

It must also be noted that the two pesukim that set up that binary—כה תאמר לבית יעקב ותגיד לבני ישראל on the one hand, and אל־תגשו אל־אשה on the other—are often misunderstood, sometimes deliberately, by those either trying to prove that the Torah gender definitions mandate restrictive gender roles, and/or that the Torah is invariably androcentrist and/or misogynist.

The אל־תגשו אל־אשה issue has been oft overplayed to the point that a radical feminist notion of an androcentric Torah that excludes women: aside from this imperative ostensibly only being directed at men (never mind that כה תאמר לבית יעקב ותגיד לבני ישראל should indicate that not only were women included, they went first), there are actual questions raised by Tosfos in Yevamos 46a that question whether women had a “diminished” experience at Har Sinai.  Ultimately this is solved tautologically (“The women had to have immersed, because if they did not, by what method would they have entered into the Jewish People?”), but even that indicates that the conventional wisdom with regard this question is to ultimately be inclusive rather than exclusive.

The posuk כה תאמר לבית יעקב ותגיד לבני ישראל delineates an ostensibly invariably traditional approach to gender divisions in education, to the point that not only are separate schools mandated, but even the educational tracks are supposed to be divided; this comes into play most often in discussions regarding women learning Gemara.  Without going too far into the controversy that persists even today, one work in particular by a non-feminist scholar—Shoshana Pantel Zolty’s 1993 “And All Your Children Shall be Learned: Women and the Study of Torah in Jewish Law and History”—provides ample historical evidence that if there was ever a “ban” on women studying Torah sheba’al peh, it was observed much more in the breach, and for so long that the truly “modern”/“innovative”, less “traditional” approach might be the more recent attempts to ban it (and the successful bans in Chassidic circles).

The other distortion comes from the notion that a “curse”—in this case, the curses of Eve—are ipso facto directives, and attempts to alleviate them flaunt Divine will.  One wonders whether one should note that it was the Catholic Church that mandated that women receive no pain relief during childbirth until 1949 owing to Genesis 3:16 if one wants to consider how Jewish this notion is; either way, as TB AZ 22b notes, ma’amad Har Sinai (hence the connection to this weeks parsha) alleviated some of the more pervasive זוהמא (or “moral contamination”), which should indicate for propitious conditions for working towards alleviating her curses.

The irony of quoting Rav Soloveichik on this issue must be noted, as he was clearly uncompromising on certain issues regarding the metaphysical feminine; referring to metaphysical chazakot regarding women, and specifically “tav lemetav tan du milemetav armelu”, the Rav asserted that questioning that “metaphysical curses rooted in feminine personality; this is not a psychological fact, it is an existential fact” render one an apostate; yet it also must be noted that he famously taught Talmud to women, which still causes no end of controversy even today.  Regarding the metaphysical “tav lemetav tan du milemetav armelu”, beyond the question of whether a woman actually would rather want to actually either remain with “trouble” rather than be alone, it would seem that certain mekoros argue against the ontology of this interpretation, specifically (but not limited to): in an individual case, the Mishnah on TB Kesuvos 77a that delineates where a man who proves impossible to physically live with is compelled to grant a get, and what some call the “shidduch crisis gemara” on Kesuvos 82b, where women en masse revised to marry until the general terms of the kesuva were altered so that wives and there families received more equitable distributions and so husband’s families couldn’t hide the attached assets.   Additionally, the statement itself appears five times in the Talmud, expanding the parameters of its definition and application enough from within the halachic system that “more recent responsa reflect a change in the deterministic approach and construe it more flexibly. They demonstrate a venue to apply the law differently to changing perceptions and social norms.”

However, ironic as it may remain, one can encapsulate the approach towards Sinaitic binarism by paraphrasing what the Rav said about halacha: it’s not a ceiling, but a floor.  The relationship between binarism and women’s roles should follow TB Taanis 20b: “be flexible like a reed, and not rigid like a cedar”.

But don’t take my word for it:

One of the best treatments of this topic is Berel Lerner’s "The Ten Curses of Eve (an unpublishable article on women in Judaism)"; he explains: Non-Orthodox publications refused to print it unless I made it more stringently critical of Orthodoxy, while Orthodox publications found it too hot to handle. Since I remained unwilling to change its conclusions to make it more congenial to the views of various editors, it remains unpublished.

And his conclusion encapsulates the issues better than most:

“[A]lert and thoughtful students of traditional texts [] are bound to discover that the notion that the roles of women in Jewish life are equal in dignity and importance to those of men is an essentially modern notion formulated in response to modern concerns and conditions…One might say that full respect for the role of women is a truth of the Torah which has remained hidden from the eyes of earlier generations, waiting for us to be its discoverers. However, we cannot pretend that those earlier generations had already made this discovery. That would be a fabrication of history and a sin against intellectual honesty.”

Friday, January 18, 2019

Beshalach—Sorry Not Sorry

In the previous two parshiyos, the question arises regarding Pharaoh’s ultimate responsibility for his actions owing to G-d “hardening his heart” repeatedly from the sixth plague on, after his repeated displays of instransigence of his own free will.  Rabbi Shmuel Goldin in his treatment of the question in Parshas Va’era lists several commentators who discuss and delineate how and why this ostensible Divine interference with “free will” did or did not violate the principle of bechira.  

Then Rabbi Goldin takes it one step further: based upon the Maimonidean principle that Heaven will occasionally make it very difficult if not impossible for an offender to repent.  Rabbi Goldin addresses two specific issues: the first, that there are seem sins that are so grievously injurious that the notion that one can repent for them will is well-nigh offensive; the Pharaonic racist enslavement and genocide would qualify as one of those sins.  (To provide a crude yet illustrative analogy, in his novel “Cat’s Cradle”, Kurt Vonnegut observes one of his characters—a Nazi doctor who committed innumerable atrocities during the war who now saves lives—who might approach evening the ledgers after about three millennia practicing conventional medicine.)

Rabbi Goldin also wants to draw a distinction between what he sees as the Christian notion that everything is forgivable.

One might want to add three additional dimensions to this discussion.  

  • The first expands upon the Pharaonic and Egyptian “hardheartedness”, and that, even leaving aside Rabbi Goldin’s salient notion that there are unforgivable things, more often than not the associated attempted  “repentance” fall far short at best, or later proves to have been completely insincere in its face at worst.  
  • The second adds a loosely analogous “hate-crime” dimension, even if an ostensibly Judeocentric one: when it comes to crimes against the Jews, and that the otherwise ostensibly well-behaved forfeit any claim to righteousness, and can be accounted with the truly wicked based solely on their expressed intransigent Judeophobia, on a personal but especially on a national level.
  • The third, unfortunately, points to a trend within certain frum circles where an inappropriately expansive definition of teshuva and mechila has been adopted and insisted upon as a, if not the, default Jewish position regarding certain offenses and offenders.  The distortion might owe more to pop psychology than the aforementioned Christian notions of forgiveness; it finds considerable favor in therapeutic circles where the lines between therapy and teshuva get blurred.

The first explains why the theme of “hard-heartedness” more conceptually central to the parshiyot in Sefer Shemot that precede Beshalach—especially Va’era, where one first views the shift between Pharaoh hardening his heart first without, and then with, Divine “assistance”—actually not only in central to the events at the Red Sea, but finally ties together the entire Egyptian attitude.  

In essence, Pharaoh, his court and subjects cancel whatever teshuva they might have done at the time of makkas bechoros when they completely reconsider having set the slaves free (or, possibly, even having only given them a three-day furlough).  The favorable attitude they had toward the Hebrews referred to during the period between choshech and makkas bechoros; their fear after makkas bechoros “we are all dead”—any self-reflection and regret is now erased: the chase to the Sea is on.  In our day and age, one can identify this kind of insincere or even completely false repentance with individuals like Dr. Lara (rhymes with Phara) Kollab, the Touro graduate who showed her gross ingratitude in a series of revealed antisemitic tweets and, when caught, issued a fauxpology blaming her tirade on the “oppression of Palestinians”.

The second point explains how theoretically G-d-fearing, well-meaning people can harbor the word Judeocidal impulses even while ostensibly exhibiting righteousness: consider how the Egyptians labeled as “G-d-fearing” during the plague of barad who saved their livestock are identified as the same Egyptians comprising the garrison chasing the Jews into the sea.  This should serve as a contemporary analog to public figures like Jimmy Carter and Louis Farrakhan, who are lauded for their charitable efforts at the same time they issue repeated antisemitic platitudes.  A “good” antisemite may be an even worse antisemite.

The third element—the aforementioned trend within certain frum circles to inappropriately expand definitions of teshuva and mechila—describes issues different from national enemies: rather, it can be seen particularly in the insistence that miscreants like sex offenders and domestic abusers are too often given the benefit of religious doubts because “anyone can do teshuva”.  As Rabbi Goldin points out, this notion is a misnomer, but it hasn’t stopped stop some from insisting upon the opposite notion bordering on an ikkar emunah.   

One example might be a facebook thread on the wall of a very prominent shadchanis discussing harassment and even date rapes unexpectedly occurring in shidduch settings; some commenters insisted that even a rapist can’t be turned in for his crime if he has done teshuva.  

Another example might be a frum psychologist insisting that an abuser doing teshuva for wife beating can be trusted to get married again because “anyone can do teshuva”, and that would qualify as an indicator for rehabilitative success  (in fact, if an abuser wanted to truly repent, he should express the willingness to consign himself to celibacy and release his victim unreservedly from the marriage to find safety elsewhere). 

Yet another example might involve a discussion about Amnon ostensibly doing teshuva for the rape of his sister Tamar by fasting and never leaving the bes medrash for the last two years of his life before Avshalom kills him as revenge.  Some use this medrash as a paradigm of how one can repent even the worst crime; a closer examination of the narrative might indicate how this kind of outward “repentance” usually is somewhere between woefully incompletely and grossly insincere.  One thing one might note is that the medrash details Amnon’s outward displays of piety, but it never says he apologizes or makes restitution to his sister, who becomes a recluse as a result of the assault. 

In effect the real takeaway, then, is that it is more likely that expressions of regret and penitence for certain gross iniquities can be legitimately responded to with even extreme skepticism.

As a final recent example of how this works (or doesn’t), one can view the example of a prominent Rav trying to use Bernie Madoff’s expressions of regret at his sentencing as “help[ing] people understand eternal Jewish truths”.  Even as the Rav was removing his piece because the intense backlash made him consider that he might have “chose[n] unsuitable examples for the concepts [he] sought to impart”, Madoff, like Pharaoh, ended any penitential pretense in a later jailhouse interview: “**** my victims.”

Eventually, false teshuva always outs itself.

Friday, January 11, 2019

Bo—Need To Know

Moshe Rabbeinu makes an executive decision.

As explained in TB Brachos 4a, Moshe tells Pharaoh and his court that the Plague of the First Born will strike “kachatzos”—as “on or about midnight”, loosely translated—in slight contradistinction to G-d’s directive, that the plague would strike “bachatzos”, or “at midnight”, exactly.   The implication in the Talmudic text is that Moshe’s editing received a Divine imprimatur: if Pharaoh’s astrologers had miscalculated and it would have appeared that the plague had not occurred at midnight, they would have considered it an opening to discredit the Divine provenance of the plague.

In theory, one might question how likely that scenario was.  Consider that Egypt was already on edge; the country had all but been destroyed by the previous nine plagues, the nation seemed to be siding with the Jews against Pharaoh and the court [see 11:3], and the court itself had issues with the Pharaonic stance [10:7]: would a slight astronomic miscalculation truly have any appreciably significant effect on the Egyptian reaction to the result of Makkas Bechoros, where אֵ֣ין בַּ֔יִת אֲשֶׁ֥ר אֵֽין־שָׁ֖ם מֵֽת, and the whole population thought כֻּלָּ֥נוּ מֵתִֽים?  If the astrologers had tried to make an issue of it, would anyone have paid attention?

Moshe’s “edit” might have been a case of עת לעשות לה׳ הפרו תורתך : if Moshe had given Pharaoh's astrologers even the slightest opening at that moment, it might have even just slightly diminished the “unity” that prevailed among the Egyptians after Makkas Bechoros—כֻּלָּ֥נוּ מֵתִֽים as the Egyptian bizarro כְּאִישׁ אֶחָד בְּלֵב אֶחָד —from Pharaoh on down to even the other non-Hebrew slaves who were almost as Hebrephobic as their Egyptian masters.  Moshe took into account what he saw as entrenched local cultural tendencies, and predicting the that the real Kiddush Hashem would resulted from the effect of the plague, he didn’t want to leave open the possibility of that moment being diminished even slightly.   Hence the edit, which, pace the midrashim, seems to have been approved after the fact at least.

This incident may have educational implications, with support both Scriptual and post-Scriptural: the Jews at Har Sinai had the Revelation on a personal level “adjusted”—as it were—based upon each individual’s ability to receive and withstand the message.  Yet, prior to that, at krias yam suf, it was said that “a maidservant saw at the sea what Yeshayah (Isaiah) and Yechezkel (Ezekiel) did not see.”  Ostensibly an insistence on the doctrinal can detract from the experiential.  This is true: but only up to the point that said doctrinal isn’t subverted, only that it isn’t necessarily presented all at once.

[Consider, even, the Talmudic narrative surrounding the Ptolmaic translation (TB Megilla 9a), where G-d performed a miracle and allowed for simultaneous translation even with ostensible departures from p’shat; but the anniversary of the date—8 Tevet—was at one time considered a day of national mourning and fasting.]

One attempt to explain this—which, to this authors mind, ultimately further complicated the matter because, even though that author made the claim up front that “you’re lied to in Baal Teshuva Yeshiva”, he couldn’t seem to decide whether to condemn or condone the approach—did say this, which might encapsulate the entire educational conundrum:

“If the Yeshiva is devoted to the delicate art of forming real Jews, the Rabbi’s answer must be complicated…Truth is ineffable and simple, and therefore cannot be communicated, even to the perhaps paltry extent the Rabbi has attained it.  The individual is complex, communicates only through fragmented words, and is looking for an answer.”

In other words, The Message might be received if presented in a more subtle form; and not only will it not detract from the Message, it might enhance it.

That said, there are some approaches that should definitely be considered out of bounds.   Aside from the aforementioned piece—which apparently just describes the philosophical and educational conundra, but doesn’t delve into what some have described as marketing ploys—there are cases where the philosophy itself is twisted, and the justified to “make people frum”.

“The way Prof. Barry Simon and I see it is that nine years ago [1998] we saw the [Torah] Codes as probably without merit, and possibly dangerous.  Things have changed. Today [2007] we regard them as definitely without merit, and certainly dangerous to the Torah community…We understand the methodology of the experimenters much better. We’ve had an opportunity to subject the phenomenon to other tests, including one agreed upon in advance by both sides. We’ve seen some of the problems generated by people coming to believe that this is really a part of Torah.”

In the end, one just has to make sure that what one presents as Torah—or even as part of Torah—really is a part of Torah.