Shabbos 97 False Accusations and justifiable censorship

On this daf, we continue dealing with a fascinating מחלוקת (disagreement) between Rabbi Akiva and Rabbi Yehuda ben Beseira, regarding the identity of the מקושש (the person found guilty of gathering wood on Shabbos.)

Every cheider kid will tell you that there is no question here- it was obviously צלפחד, the man whose daughters were later granted his estate.

However, nowhere in the text of the Torah is his identity mentioned, and it is Rabbi Akiva, who derives it from a גזירה שוה (an orally transmitted tradition hinted at by use of similar language in the text.)

This identification of the מקושש as צלפחד seemed so radical to Rabbi Yehuda ben Beseira, that he rebuked Rabbi Akiva with the argument that if he was wrong, he was guilty of false accusations, and even if he was right, he was guilty of revealing information that the Torah had chosen not to reveal!

The Gemara questions how Rabbi Yehuda could take issue with Rabbi Akiva, given that a גזירה שוה is a legitimate form of interpreting the Torah, and in fact, anything derived from one is considered as if it was actually written in the Torah explicitly!

The Gemara responds that Rabbi Yehuda ben Baseira had not received that גזירה שוה in his oral tradition from his Rabbi.

The nature of דרשות in general, and a גזירה שוה in particular, could make an essential study in its own right, perhaps in a later post, but for today, I wish to focus on the 2 things that Rabbi Yehuda ben Beteira accused (irony noted) Rabbi Akiva of doing, i.e.

i. Possibly falsely accusing צלפחד of something he never did

ii. Possibly revealing the identity of the מקושש when the Torah had chosen to cover it up.

The Gemara proceeds to record a similar debate, where Rabbi Akiva claims that Aharon was punished the same as Miriam for speaking lashon haRah about Moshe, and became a מצורע (lepor) too.

Once again, Rabbi Yehuda rebukes him for either spreading falsehood about the righteous Aharon or revealing the fact that he was equally implicated and punished, when for some reason the Torah had chosen to cover it up.

The Gemara later on brings Reish Lakish who claims that Moshe Rabbeinu himself was afflicted with צרעת on his hand because he had falsely suspected the Jewish people of not being open to listening to his message- He learns from this a general rule that anyone who falsely suspects an innocent person will suffer physical afflictions on his body.

The Navi Yeshayahu too, appears to have fallen prey to this sin during his initiation as a Navi (Yeshayahu 6/5), when he accuses the nation of being a nation with impure lips- We see there as well that the angel strikes him on his mouth as a punishment.

Those who have learnt Brachos might also recall the famous story with Chana and Eli (Brachos 31b) where he accused her falsely of being drunk, and she responded that he needed to bless her in compensation.

There too, we see reference to the biblical case of a Sotah, who if falsely accused by her husband of adultery, is blessed with having children (Bamidbar 5/12.)

It is important to note that Rabbi Akiva does not in any way minimize the severity of false accusations, or revealing what the Torah covered up- he simply has a received oral tradition that his facts were correct, and thus also believed the Torah had never covered them up.

While anyone who has ever been falsely accused of anything can testify to what a crushing experience it is, It is also important to note that Rabbi Yehuda ben Beteira rebuked Rabbi Akiva for this in two cases where the relevant person was already dead and would not suffer the results of the accusation, at least as we livings humans do (what the dead do or don’t feel is another subject- you might recall the discussion on this in מי שמתו)

It seems that this would thus apply even more so to falsely accusing someone who is still alive (though one could also argue to the contrary, the living are able to defend their own reputation, but the dead cannot.)

Yet surely there is also a time when one needs to take the risk of falsely accusing someone?

The case of a Sotah is a clear example of this- the accusation is allowed, and the woman subjected to a very unpleasant procedure, and if it is false, she is compensated.

If there is compelling evidence that someone is a dishonest in business, even if it cannot yet be proven in court, is it not necessary to take the risk of publicizing this in order to protect others, and later compensate him if the proof is found wanting?

If there is compelling evidence that someone is a child molestor, is it not necessary to first warn people to keep their children away from, and later compensate him if the evidence is found to be lacking?

As to the second rebuke of Rabbi ben Beteira, is he really discouraging freedom of reporting? Does he really suggest that terrible travesties should not be publicized by those who know about him, because the authorities that be have decided to cover them up?

This question is extremely complex and lies at the heart of the way Jewish leaders need to deal with such things. It is certainly not solvable in the few lines that make up this essay, and requires, amongst much else, a thorough analysis of the idea of חושש מבעי (although one may not believe lashon haRah, one may sometimes take it into account in order to prevent harm- see Niddah 61a and Chafetz Chaim/Lashon haRah 6.)

However, it seems clear that one must very carefully weigh the damage done to the victim of possible false accusations against the damage that could be done to innocent people if the charges are true.

Sages like Rabbi Akiva and Rabbi Yehuda ben Beteira knew how to make these calls. In the case of the Sotah, we had the miraculous bitter waters to make the call for us- for us, it is much harder.

Similarly, there are times that it is constructive to publicize the confirmed sins of people, particularly great people, for the public good- Yet there are also times that such revelations are not constructive.

The Torah is certainly the supreme authority over such decisions and can hardly be accused of covering up the sins of great people, as any biblical student can attest.

During the times that the Torah does choose not to publicize something, it is not for us to reveal it, and we must assume that doing so is not sufficiently constructive to justify it.

This fits in well with the fact that lashon haRah is forbidden even if it true unless there is justifiable benefit to spreading it.

Our great prophets and sages struggled with these choices and sometimes even they failed.

How much more so must those of us responsible for such decisions in our time, relate to them with great trepidation and after coming to a rational halacha based decision, daven hard שלא תבוא תקלה על ידי (that no damage should be caused by my decision.)

Shabbos 96 הוצאה – the inferior מלאכה that rules the roost. 

If you would ask any semicha student which of the מלאכות ( forbidden categories of shabbos work) are the most complex, my bet would be that it would be a tough choice between בשול ( cooking ) and הוצאה (transferring.)

If that student  had extended his usual semicha studies to include  ערובין , it would become a no brainer- הוצאה would definitely scoop the prize .

This is the only one of the מלאכות that takes up virtually an entire masechta ( Eruvin) , as well as at least 4 full chapters of Shabbos.

It is also one of the only 2 מלאכות ( I stand to be corrected ) that gets it own source:

  • the מלאכה of הבערה ( lighting a fire) is specifically mentioned  (Shmos  35/3) – לא תבערו אש בכל מושבותיכם ביום השבת  ( You may not kindle a fire in any of your dwelling places on the Sabbath day .)
    Chazal debate why it is singled out and their are 2 major approaches to this (הבערה ללאו יצאת או הבערה לחלק יצאת)  , but thats  not for this post.
  • Our Gemara asks where the source is that הוצאה is forbidden on shabbos, and brings a passuk ויעבירו קול במחנה  (Shmos 36/6) , an instruction to stop bringing ( transferring) things for the Mishkan. 

Given that we are already aware from various sugyos that we have studied that the source for all the מלאכות is the verse “You shall not do any מלאכה ” and the  proximity of the verse that discusses Shabbos to the one that discusses the משכן (sanctuary) , teaches us that the מלאכות referred to in the prohibition are those that were done in the work of the משכן.

In our very Mishna, this same idea is applied to the מלאכה of הוצאה to explain why passing something from one private domain to another through a public domain is forbidden yet throwing is not, according to Chachamim ( Rabbi Akiva of course disagrees and forbids throwing as well- welcome to הזורק! )

In chapter 4 of our  Masechta (Shabbos 49b) , it also specifically mentioned that both הוצאה   ( literally taking out ) and  its תולדה ( derivative )  הכנסה ( bringing in ) , are derived from what was done in the Mishkan.

As such, the question screaming out at us is why do we need a separate passuk to teach us the prohibition of הוצאה and its תולדות of הכנסה, זריקה, etc , when it was  already one of the 39 מלאכות done in the Mishkan and is indeed derived from there too!

Tosfos on the first daf of the Masechta ( Shabbos 2a ” פשט” ) , deals with this  question at length, and focuses on the idea that הוצאה is a מלאכה גרועה ( inferior מלאכה ).

This seems to be because unlike most מלאכות where an actual physical change ( usually an improvement) is made in the object the מלאכה is applied to,  transferring an item from one domain to another does not have any physical affect at all- it remains the same item as it was before.

Tosfos points out that it is so questionable whether this should even qualify as a מלאכה  that transferring from one adjoining  private domain to another is completely permitted on a biblical level while transferring from a private domain to a public domain is forbidden, despite their similarity in terms of the action done!

The question that still bothers Tosfos though, is the converse .

If we already know that הוצאה is forbidden from a separate  verse despite it being a מלאכה גרועה , then why does our Mishna and other sugyos have to show that it was done in the Mishkan ?

He answers with the radical idea that had we not been able to show that הוצאה was indeed one of the מלאכות in the Mishkan, we would have learnt from the passuk that explicitly forbids it that ANY melacha like action, (perhaps even a weak one like הוצאה) , is forbidden on shabbos, even if it was NOT done in the Mishkan !

We thus need a separate passuk to teach us that even though it is a מלאכה גרועה, it is still included in the prohibition with its sister melachot that were done in the Mishkan, but we need the fact that it was in fact done in the Mishkan to save the famous rule that only מלאכות done in the Mishkan are in fact forbidden !

It thus comes as a leniency rather than a stringency  as we thought .

But what would we have done with the דרשה that derives the forbidden מלאכות from the משכן due to proximity of verses ?

Tosfos suggests that this would have simply been used  to teach us something else , perhaps a fascinating statement about how he views the world of דרשות in general , but thats for another time perhaps …

Lets take a minute go consider how far-reaching this suggestion is- The golden rule that we always take for granted about the connection between the Mishkan and Shabbos would have come tumbling down in a moment had Chazal not shown that this “inferior Melacha” was also done on the Mishkan!

There is another, philosophical lesson, I would like to learn from this .

What seems to us like the weakest of Melacho, one that has NO physical impact on the item at all, to the point that it needs its own unique prohibition, has become the Melacha which our Masechta opened up with, that occupies 2 of the longest and most complex chapters of the Masechta, and also gets its own entire Masechta virtually to itself !

Despite the emphasis placed on the laws of לשון הרע ( gossip) and אונאת דברים (offending people ), in practise , we  still often tend to harbour  the mistaken belief that ” sticks and stones can break my bones but words can never harm me .”
So long as one doesn’t actually physically hurt a person, it is OK to hurt him emotionally, after all emotions cannot be seen or measured !

Yet the message of this מלאכה is precisely the opposite. 

If a constructive action that involves no physical improvement to an item can not only be considered מלאכת מחשבת , a significant form of work, but even dominate all the other מלאכות in the time spent studying it , how much more so should we focus on the significance of non physical damage that appears to be less significant, but in fact, can be as damaging , or even more so, than physical actions, , as we know from the innocent  lives that have been utterly ruined by lashon harah.

Shabbos 95 Wearing make-up on Shabbos

On the previous daf, our Mishna taught us a list of various things that Rabbi Eliezer considers to be biblically forbidden on Shabbos, and subject to the appropriate punishment, and which the Chachamim only consider to be rabbinically forbidden (שבות)

One of these things is כוחלת, painting her eye-lashes blue.

The Gemara suggests that the reason Rabbi Eliezer considers this a biblically punishable offense is because it is a form of כותב (writing.)

Rashi explains that this is because she uses the paint-stick to circle her eye like one who writes a letter with a pen.

The Gemara rejects this explanation because that is not a normal way to write and concludes at the beginning of our daf that it is because of צובע, the melacha of dyeing/painting.

It then brings a Beraita that says similarly that it is forbidden for a woman to put סרק (red coloring) on her face, because of צובע.

As the halacha usually follows the majority of Chachamim, it seems that we should rule like Chachamim that this is only a rabbinical transgression or שבות.

However, the Rambam (Shabbos 23/12) seems to rule like Rabbi Eliezer, but also like the Gemara’s first suggestion, that it is forbidden as it is like writing!

Whereas one might possibly interpret the Rambam’s wording to mean that it is considered rabbinically like writing ( a look in the Achronim shows that both interpretations are well represented) , it is still bizarre that he rules like a rejected suggestion in the Gemara.

This becomes even stranger when we see that in the previous chapter, (Shabbos 23,22), he ruled that using סרק is forbidden because it is like painting!

The Masores haShas, uncharacteristically comments on the Rambam he points to, and refers us to various Rishonim relevant to this.
Also, Rabbeinu Chananel, one of the earliest of the Rishonim (early commentators) ,actually rules explicitly like Rabbi Eliezer- his reasoning is that seeing as the Rabbis of the Gemara spend time debating his reasoning, it seems like they rule like him, and even though some say that the Halacho follows Chachamim, it makes more sense to rule like Rabbi Eliezer seeing as it is a possible אסור דאורייתא (biblical prohibition.)

Despite the above, both the Tur and the Shulchan Aruch (O.C. 303) rule that it is forbidden because of צובע, as per the conclusion of the Gemara, and the consensus of the Achronim (see Beit Yoseif, Mishna Beruru, Aruch haShulchan etc) is that it is only rabbinically prohibited, in accordance with the view of the Chachamim.

It seems clear from the above, that using make-up or lipstick on Shabbos is a rabbinical prohibition, and as such, may clearly not be done, and this is the general consensus amongst poskim.

However, it might be that given certain social or family dynamics, a woman living in a less observant community feels that putting on make-up or lipstick is a great need, and that not doing so causes her great suffering, and perhaps even to be mocked by her less religious friends and relatives.

Even in fully observant communities, many women simply feel very uncomfortable being seen without make-up, and without a solid halachik way, might chas vesholom come to the rely on less permissible ways of putting it on .

It would seem reasonable to suggest that she should then be permitted to put it on with a שנוי ( in an unusual way), at least according to the views (see previous post) that a שבות דשבות is permitted even by a Jew for the sake of a Mitzva.

As this would be rabbinic for two separate reasons:

  • Coloring the skin is not considered real צובע, but just a שבות
  • Any melacha with a shinui is only derabonen (rabbinically forbidden)

This would be even less problematic if she uses short-term make-up that doesn’t last long, as it could also be considered דבר שאין מתקים (a melacha whose affect doesn’t last), and might never even have been included in the גזירה to start out with.

It would go we thought saying that it would have to be a texture that doesn’t involve the prohibition of ממרח (smearing ), which semi solid creams and lipsticks usually do ( here too though , if it isn’t thick enough to be ממרח דאורייתא, the שבות דשבות rule with a שנוי might also help!)

While I find my reasoning appealing, I have not found any major poseik who has made this suggestion, and in any case, these posts are not meant as halachik rulings, so anyone with a learning background who finds my suggestion convincing, should discuss it with an expert poseik.

In practise, with the development of various types of shabbos friendly makeup, and the increased sensitivity to halacha in many communities, this is probably less of an issue than it once was .

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Shabbos 94 שבות דשבות על ידי ישראל – a double derabonen by a Yisroel

Shabbos 94 שבות דשבות על ידי ישראל – a double derabonen by a Yisroel

One of the most powerful leniencies on Shabbos, is the rule of a שבות דשבות, an action which is only rabbinically prohibited for 2 different reasons.

The most common application of this applies to work done by a non-Jew on Shabbos for a Jew.

In general, it is forbidden to ask a non-Jew to perform a forbidden task for a Jew on Shabbos. According to most opinions, this is a rabbinical prohibition, which I hope to discuss in a later post.

However, one is permitted to ask a non-Jew to perform something that is only rabbinically prohibited, for example to move something that is Muktza, or perform a forbidden melacha in an unusual way, so long as there is a great need for this, to prevent suffering, or for the sake of a Mitzva. (This too, is not straight-forward, and I hope to devote a future post to it.)

Although subject to debate in the Rishonim, this is the generally accepted halacha, and is because this is only rabbinically forbidden, for 2 different reasons:

  • אמירה לעכום (asking a non-Jew to perform forbidden work) is only rabbinically forbidden
  • The actual act being requested, is also only rabbinically forbidden.
    The generally accepted source for this, is a sugya in Eruvin 67 , which allows one to ask a non-Jew to bring hot water for a bris milah through a shared courtyard where an eruv has not been made. (See Rif and Ran Shabbos 56 for a long analysis and debate on this.)

The question is, however, whether this is limited to a rabbinical prohibition performed by a non-Jew, or whether a Jew would also be allowed in case of great need, to perform an action that is a שבות דשבות, for example moving Muktza in an unusual way, or two people turning on a light in an unusual way.

In order to answer this question, one would either need to prove that whatever Chazal’s reason for this leniency is equally applicable to a שבות דשבות performed by a Jew, or find a specific case in the Gemara where a שבות דשבות by a Jew is permitted.

On the other hand, should we find a case where a שבות דשבות by a Jew is not permitted, even for the sake of a Mitzva, great need, or suffering, one would be forced to either prove that this is an exception or a non-authoritative view, or conclude that שבות דשבות is not permitted for a Jew.

I have been trying for many years to find a concrete example of what might be an example of שבות דשבות by a Jew that is permitted, within the Gemara.

Today’s daf got me extremely excited, at least for a minute!

We are told that there was a corpse in the town of Darukra, that Rav Nachman bar Yitzchak permitted to be moved to a Carmelis (an open area that is not closed enough to be a private domain and not busy enough to be a public domain.)

This action seems to be a clear example of what we are looking for, a שבות דשבות done by a Jew!

  • It is mentioned just after we have analyzed the view of Rabbi Shimon that מלאכה שאינה צריכה לגופה (A Melacha where the usual result is not needed- another post to look forward to!) is only rabbinically forbidden. As the corpse is not needed, but merely needs to be removed, this would be one reason that this is only rabbinically forbidden.
  • It was taken to a כרמלית, which is also only Rabbinically prohibited!
    It seems that we have our case!

The trick, however, comes in how we learn the continuation of the sugya!
Rabbi Yochanan, brother of Mar son of Ravina, challenges Rav Nachman bar Yitchak on his leniency.

He says that even if one holds like Rabbi Simon that מלאכה שאינה צריכה לגופה is only rabbinically prohibited (פטור אבל אסור), that does not make it permitted!

It seems clear that the challenger does not see a difference between one שבות or a שבות דשבות if it is done by a Jew, or the question would not be relevant- it would be true that even Rabbi Shimon agrees that מלאכה שאינה צריכה לגופה is at least rabbinically forbidden, but Rav Nachman bar Yitchak only permitted it to be moved to a כרמלית, which is also only דרבנן, and thus permitted as a שבות דשבות.

At this stage, one might still argue that Rav Nachman bar Yitchak himself does differentiate and permits a שבות דשבות even by a Jew.

However, if that were the case, one would expect him to reply accordingly.

Instead, he replies that even his challenger would permit this case, and even if he held like Rabbi Yehuda that מלאכה שאינה צריכה לגופא is biblically forbidden (i.e. Only one שבות is involved.)

This is because of the rule that כבוד הבריות (human dignity) over-rides any rabbinical prohibition, and seeing as this was only to a כרמלית , which is only rabbinically prohibited, it was permitted.

It seems from his reply that the reason he permitted this was NOT because of a general rule that שבות דשבות is permitted for any mitzva, or great need, but because of the התיר of כבוד הבריות that applies to any שבות, even if it isn’t a שבות דשבות.

Before I give up and acknowledge that this sugya is thus not a proof that שבות דשבות על ידי ישראל is permitted, but rather could be a proof that it is not, I make one final argument:

Perhaps, Rav Nachman’s reply is not meant to deny the permissibility of שבות דשבות על-ידי ישראל , which likely is his initial motivation for his decision.

Maybe, he is merely bringing the less controversial התיר of כבוד הבריות to answer his challenger and to show that even his challenger, and even Rabbi Yehuda himself, would also have no reason to oppose his reason!
Much more to discuss, but that’s it for tonight….

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Shabbos 93 שנים שעשו    A melacha performed by 2 people

Shabbos 93 שנים שעשו    A melacha performed by 2 people

As mentioned yesterday, I would like to focus today on an extremely practical leniency in the laws of Shabbos- the exemption of a melacha done by 2 people.

 

This rules takes us all the way back to the beginning of the Masechta, where we learnt that in order to be forbidden biblically and liable to  a korban (or מיתה  or כרת  if done knowingly) for transferring something on Shabbos from one domain to another,  one has to both uproot the object from the one domain and put it down in the other.

 

Someone who does only one of these actions, has performed a rabbinical prohibition, not a biblical one, and is exempt from the biblically prescribed punishment.

 

A question that might have still been left open during the many daf that discussed this rule, is what the source is for this exemption!

 

One possibility is that it is simply another manifestation of the general rule that a biblically prohibited Melacha must be considered מלאכת מחשבת, an important, calculated, and significant act of work.

One could argue that if one only performed part of the action, leaving the rest for someone else to complete, one’s action is simply not מלאכת מחשבת.

 

On our daf, we face a different, though possibly related, exemption.

 

Here, two people perform a Melacha together, such as writing with the same quilt, or carrying the same item from one domain to another.

 

In this case, we are faced with 3 opinions:

-Rabbi Meir is of the view that one is liable

-Rabbi Yehuda is of the view that so long as neither of them could have managed the action on their own, they are exempt. Otherwise, they are liable.

– Rabbi Shimon is of the view that even if each of them could have managed the action on their own, they are still exempt.

 

The Gemara derives these 3 views from the passuk in Vayikra which is the basis for the requirement to bring a sin offering:

 

ואם נפש אחת תחטא בשגגה מעם הארץ בעשתה.

“and if one soul sins unknowingly from amongst the people, by doing it.”

According to Rabbi Yehuda, and Rabbi Shimon, there 3 מעוטים (exclusions) here:

נפש  (a person in the singular)

אחת (one)

בעשותה  performing it, ie ALL of the transgression)

 

Rabbi Yehuda uses one of these to exclude the case when each of them do part of the Melacha, ie either עקירה (uprooting) or הנחה (putting down), as in the first Mishna of the Masechta.

He then uses another one to exclude a case when two people perform the entire act together, when they could have done it on their own, ie our case, when two people carried a fig outside.

The third exclusion is used by him for a different matter.

 

Rabbi Shimon agrees with Rabbi Yehuda regarding the first two exclusions and uses the third as well to exclude a case when both of them could NOT have done the action on their own.

 

Rabbi Meir holds that the first 2 exclusions, i.e. נפש אחת , count as 1, not 2, and only excludes the case of 2 people doing different parts of the melacha- he uses the other exclusion (בעשותה) for  the same different matter Rabbi Yehuda derived from it.

 

It follows that both Rabbi Shimon and Rabbi Yehuda agree that in a case where two people perform the entire melacha together, and they could have each done it on their own, they are exempt.

The Halacha follows this majority view (see Rambam, Tur, and Shulchan Aruch on this subject), and both cases of שנים שעשו, the case where different parts of the melacha are performed by 2 different people, and our case, where an entire  melacha that could have been performed by one person is done by two people together, are exempt from the biblical punishment and are only rabbinically forbidden.

 

It also follows from our daf that both leniencies are learnt from their own unique words in the above mentioned passuk, and not just from the requirement for מלאכת מחשבת.

 

Why is it important at the end of the day whether this is derived from its own passuk, or from מלאכת מחשבת?

 

I would like to suggest two possible practical ramifications (נ”מ):

 

What happens if two people perform together another forbidden action, NOT related to shabbos, that they could have both done individually?

For example, if two people together made an idol.

If the exemption was only from מלאכת מחשבת, it would only apply to shabbos, and these two would definitely be liable.

However, if the exemption is due to the independent passuk regarding the laws of sacrifices, it has no specific relation to shabbos, and should in theory also apply to other prohibitions.

Yet despite this, I am yet to see an example of the Gemara applying this exemption to prohibitions other than shabbos.

 

Another Nafka Minah could be regarding the leniency of שבות דשבות (an action that is only rabbinical in nature for two different reasons.)

The rule is usually, regarding shabbos at least, that such an action is permitted in case of suffering, great need, or for the sake of a Mitzva (though whether this applies to an action performed by a Jew, or only to one performed by a non-Jew is in fact subject to debate.)

If this leniency  indeed applies to actions performed by a Jew as well, what happens if two people perform one action that each of them could have done on their own, in an unusual manner (שנוי)?

This action is only rabbinically prohibited for 2 reasons- it is unusual, AND 2 people have performed it instead of one.

However, if the leniency of שנים שעשו, is also, like שנוי, derived from the requirement of  מלאכת מחשבת , one could argue that this is not really a שבות דשבות , but all part of the same one exemption, namely מלאכת מחשבת!

(I did put this possibility to haGaon Moreinu haRav Osher Weiss Shelita, and his gut feel was that it would still be called a שבות דשבות, but there is certainly what to explore here.)

 

If, on the other hand, as we have proven, the leniency of שנים שעשו comes from a completely different context than that of שנוי  and other Mishkan\Meleches Machsheves related leniencies, our case would clearly be an example of  a שבות דשבות , and according to those who permit this even when done by a Jew for the sake of Mitzva, great need, or to avoid suffering, this should certainly be permitted!

Shabbos 92 מתעסק and unintentional melacha revisited

This Daf is packed with examples of some of the most important principles of Melocho on Shabbos, mainly based on the idea that in order to be biblically forbidden and punishable, an act has to be considered מלאכת מחשבת (a significant, important, or calculated act of work.)

Among them, are the idea that a melacha done in a significantly unusual way (שנוי) is exempt from punishment, as is the rule of two people performing a melacha that could be done by one person ( more on that tomorrow , Hashem willing .)

We have discussed before the concept of מתעסק, where someone who does not have full intention to perform the forbidden act might be exempt .

This, unlike many of the exemptions of מלאכת מחשבת, is derived ( כריתות יט.) from a specific מעוט ( exclusion) in the verse that obligates one to bring a קרבן חטאת for performing a serious transgression unknowingly – “וחטא בה פרט למתעסק” . ( interestingly enough, so is שנים שעשו, right here on the daf)

Yet , despite having its own source, the Gemara in numerous places also states that המסעסק בשבת פטור מלאכת מחשבת אסרה תורה המתעסק בחלבים ועריות חיב שכן נהנה – one who performs a melacha on shabbos without intention is exempt, as the Torah only forbade calculated melacha, but if one eats forbidden fats or sleeps with someone forbidden to him unintentionally, he is liable , as he has derived pleasure from it .

This seems to imply that מתעסק is yet another exemption of מלאכת מחשבת , and not an independent exemption based on its own source .

One can ask further that if the only reason מסעסק is liable by forbidden fats and עריות is because of the pleasure he gets ( a subject for analysis in its own right), then it should apply in ALL areas of halacha where pleasure is not a factor, not only on shabbos , so what is the relevance to מלאכת מחשבת , which is only an exemption on shabbos? ( see Rashi there who asks the question and takes a different approach to what I suggest below, which is more constant perhaps with other Rishonim here , for reasons outside the scope of this post, but that need to be fully studied to get an understanding of this concept.)

It stands to reason that there probably two different kinds of מתעסק or intentional melacha , one category that is exempt in all areas of halacha other than where הנאה ( pleasure) is involved , and one that is only exempt on shabbos .

For example , the classical case of מתעסק where one intends to pick up something detached from the ground and landed up picking up something connected to the ground ( see earlier post on perek 7) , is similar to intending to eating permitted fat and landing up eating forbidden fat, which would be exempt if not for the fact that he derived benefit.

It follows that there is no need for the concept of מלאכת מחשבת to exempt this, as it is covered under the blanket exemption learnt from its own source, which applies in theory to all areas of halacha.

But there is another kind of מתעסק , which we see in the main sugya in כריתות, as well as on our daf today !

This involves a case where one intends to do something that is forbidden, but lands up performing the same forbidden action on a different חפצא ( object ) than intended , or in a different manner (צורה) than intended .

One example subject to debate in the sugya in כריתות is when one intends to light or extinguish a certain candle and lands up lighting or extinguishing a different one .

In other areas of halocho, if one would intend to , for example, bow down to one idol. , and landed up bowing down to another , it is very possible that one would still be liable, seeing as one intended to do the same forbidden action, and there is no exclusion from וחטא בה .

However, on shabbos, the exemption of מלאכת מחשבת is so strong, that it requires a complete fulfillment of נתקים מחשבתו, (his intentions were fully fulfilled .)

Any deviation from this could be a reason for exemption, due to this broader form of מתעסק.

A far -reaching application on this rule is found in a Mishna on our daf!

If one intends to carry something in front of him, and lands up carrying it behind him, even though there is no lack of intent ( מתעסק) in the מעשה ( action), or even in the חפצא ( object of the action), but merely in the צורה ( manner or form of the action), one is exempt!

Rashi explains that this is a form of לא נתקיימה מחשבתו ( his intentions were not fully fulfilled ) which in turn is a form of מתעסק!

[ These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf . They are not intended as psak halacha ]

Shabbos 91 and Parshas Behaaloscha Racism, Self-Defense, and Prison Reform

Today’s daf contains an unusually high amount of different Talmudic principles, all of which can be the subject of post after post on their own.

Among them we see again the concept of אחשביה, the idea that something (or quantity) generally not appreciated as significant by a society in general and thus not subject to the penalty for transferring on shabbos, can become significant when someone sets it aside for a useful purpose.

Besides, for being a recurring theme in our masechta regarding shabbos, we have also seen this in a recent post regarding inedible chametz on Pesach, which can become forbidden when someone chooses to eat it.

We also see the principle of בטל דעתו אצל בני אדם, ( a person’s view is nullified by the view of others), which in our case, shows that the converse DOES NOT apply- even if someone does not regard something as significant, if the majority of people do regard it as such, it is also considered significant.

And towards the end of the daf, we encounter a famous legal rule of קים ליה בדרבה מיניה (a person who does one action subject to multiple punishments, is only subject to the greater of the two.)

It is very tempting with our high, often justified, but often exaggerated, regard for the modern, western justice system, to chas veshalom view the Torah approach to justice as archaic, and even cruel chalila.

While there are certainly many aspects of it, that at least on the face of it, do create philosophical and ethical challenges for us , there are So many concepts, that even on the simple face of it, should be so easy for modern society to learn from.

Punishment is supposed to be constructive, fit the crime, and not over burden society.

On the one hand, self-defense, and defense of one’s property, is a legitimate reaction, and one of the main sugyas of the idea of קים ליה בדרבה מיניה, is the sugya in Sanhedrin (72a), where one is permitted to kill a robber breaking into one’s house, when the assumption is that the thief is coming to kill.

This is so much so, that the thief is exempt from monetary claims caused by his damage during the crime, seeing as he was subject at the time to a possible death penalty!

Yet, the rule is also very clear that this (as well as the general rule of a pursuer) is an absolutely last resort- If there is any way to save oneself by wounding the attacker, one is required to do so, and if one fails to, one is guilty of murder )Sanhedrin 74a.)

In a world where so many people are treated as second class citizens, the rule of אחשביה could teach us on an ideological level, that we are able to elevate these people and restore their dignity simply by starting with ourselves and being the one’s to appreciate them.

At the same time, we can never be guilty of being the ones to treat people with less dignity than the norms of the society in which we live.

In our parsha, Miriam is guilty of gossip against her brother, Moshe Rabbeinu, the greatest prophet of all time.

The passuk tells us that this gossip, had something to do with the Cushite (Ethiopian black) wife that Moshe had taken.

There are many varied explanations in Chazal and the Rishonim as to the precise nature of the gossip (some of which might have more appeal than others to our personal views on racial matters) , and of course, there are multiple facets to everything in Torah.

However, we have one iron-clad rule that Chazal themselves taught us (earlier in our masechta) : אין המקרא יוצא פשוטו (a verse does not depart from its simple meaning.)

This golden rule is usually taken to mean that the various midrashim, even those that seem to contradict the simple reading of the passuk, come to supplement and add additional messages to the simple meaning of the text, NOT to replace it, and although there is much to discuss about this idea in its own right, I will take it as a given for the purposes of this post at least. (for further reading, see the various explanations in Rashi, Ibn Ezra, the Targumim, and in particular, the Sifsei Chachomim on the two explanations in Rashi, on this episode.)

Although it is always hard to understand how great people can do terrible things, whatever the precise nature of this gossip was, the terrible punishment makes it clear that it was indeed a terrible mistake.

I would like to suggest what to me, at least in the context of our time (and the timeless Torah speaks to ALL of us, in ALL times), is the most obvious simple meaning of the text.

In the biblical society, like in today’s so called liberal western world, the illness of racism was a scourge, that even otherwise great, and good people, were affected by.

Moshe Rabbeinu’s marriage to a black woman, was frowned on so much in that society, that even his own great and righteous sister couldn’t handle it.

And what happened- she become ill with an affliction which makes the skin go snow-white!

In Judaism, diversity in creation is actually celebrated, and even has its own bracha, משנה הבריות, (one who diversifies his creations), one that is actually made on rare animals like elephants (depending on time and place), as well as unbelievably, black people, who were very rarely seen in Talmudic Israel and Babylon (Brachos 58b.)

Perhaps the simple lesson from Miriam is that if one doesn’t appreciate that “black is beautiful”, one can land up as a leprous outcast, as white as white can be!

Shabbat Shalom ,and may we see the end of the terrible scourge of racism and the appreciation of every person created in the Image of Hashem.

Shabbos 90 General knowledge

 

I was never great at the school general knowledge quiz.

That was not due to a lack of love for trivia, but more because I am one who tends to obsess over subjects that interest me and pretty much disengage from those that do not.

In a general knowledge quiz, knowledge of sports and modern music trends ( which really did not interest me much) is as important as knowledge of geography and religion ( which did )

As I grew older, my interests broadened, and I even managed to appreciate  poetry at least enough to get through matriculation in South Africa .

I still have a particularly hard time with many technical sugyas- for example, as much as I try ( which admittedly is not enough), I have not succeeded in understanding the weaving process enough to begin to understand the melachos that are based on this most ancient of skills. 

One of the incredible things that constantly strikes me about Chazal, is how they were required to have the most broad general knowledge of pretty much everything that was known at the time, in order to learn, teach, and interpret Torah correctly. 

The Amora Rav relates (Sanhedrin 5b) that he spent 3 years of his youth on a cattle farm, learning how to distinguish between different types of blemishes. 

We saw earlier in the masechta how important knowledge of Astronomy is for our calendar and thus all mitzvos that relate to specific dates .

Mathematical knowledge was an essential requirement for the many measurements that make up so much of halacha .

And an understanding of politics , culture ,and current affairs was a given for the complex interactions required with our various hosts , colonizers, and oppressors, not to mention the laws of derech eretz which were clearly impacted by and adapted to, the culture of the times .

Although there are countless examples, let us not forget that the members of the supreme Sanhedrin had to know 70 different languages – is there anyone alive today who can claim that feat?

On this daf, the Amoraim work hard to try and understand the meaning of various items mentioned in the Mishna, things which were clearly well known during the Mishna period, but were clearly  not  well known in the  Sassanian Babylonia of the Talmud Bavli. 

They appear to have successfully done enough research to identify all of these, for example בורית is identified as a type of  אהלא, after some give and take , and אשלג is identified as שונאנה, only after consulting with a regular overseas traveler-it seems us frequent travelers can come in pretty handy too!

Of course, just because the Amoraim were able to identify these things, doesn’t mean we are able to- if you feel a little frustrated and perhaps disillusioned by the ancient vocabulary required to understand sugyas like this, be slightly comforted by the fact that even the father of the mefarshim (commentators), Rashi himself ,admitted, in his usual honest way, that he did not  know what שלוף דוץ was!

The identity of the חלזון,  required for making the tcheiles  (arguably blueish dye used for tzitzis and certain items in the mishkan) has evaded our greatest authorities for centuries, generating much debate, but absolutely no consensus. 

As we quoted in that earlier article, our greatest leaders from the Rambam to the Vilna Gaon taught us how an understanding of all forms of wisdom is essential for a proper understanding of the Torah- we can only look up in awe to the great bearers of our Masora ( tradition) who were able to familiarize themselves with a treasury of general knowledge anyone today could barely dream of, together with mastery of the entire Torah itself.

As my high school Rebbe and shul Rav in my youth , haGaon Rav Eliezer Chrysler שליט”א told one of us at our Barmitzva, in his Gateshead English style  – “you might not be able to be Rav Moshe Feinstein zt’l, but you jolly well can try.”

I guess that being on the future Sanhedrin is not even a dream for most of us, but we better “jolly well try”! 

Shabbos 89 The teenager in halacha

 

It is commonly known that the age of majority in Jewish law is 12 for a girl and 13 for a boy, roughly the average age of the onset of puberty.

At this age, the Jewish adolescent becomes obligated to perform all positive commandments, refrain from all negative commandments, is liable to punishment in a court of law, and can participate in much of public Jewish life. 

As such, it is the conception of many, that there is no real period of transition between childhood and adulthood recognized by the Torah, and that the term teenager really has no halachik meaning at all.

However, a closer look at various sources , including today’s daf, shows that this is not true at all.

In fact , there is no direct source for the age 13 being the age of majority in the Chumash itself- this is derived mainly through  the equally authoritative oral law- we see in the text  references to Yishmael having his circumcision at age 13, but given that Yitchak’s  circumcision was at 8 days, this is hardly a clear proof for anything .

In fact, the most common age of adulthood referred to in the Torah is the age of 20, specifically when the teen years end. 

This is the  minimum age for army service, for counting, an important cutoff for ערכים ( evaluations), and the age at which people were sentenced to die in the wilderness after the sin of the spies .

And this is the age, according to numerous statements of Chazal, at which one becomes liable for punishment in the heavenly Court (דיני שמיים.) 

One of the key statements about this is made on today’s daf  (This source was first pointed out to me  quite some years ago in Africa  by our great teacher, haGaon  haHagadol  haRav Asher Weiss שליט”א) 

In the future, Hashem approaches Avraham and tells him that the Jewish people have  sinned.

He replies that they should be destroyed for the sanctification  of Hashem’s name.

Hashem then goes to Yaakov, who gives the same reply .

Finally, he comes to Yitchak who asks Hashem to forgive them based on the following argument:

1. A person only lives 70 years on average 

2. The first 20 years is not subject to punishment (in the hands of heaven)

3. Of the remaining 50 years, half are made up of nighttime ( while one is sleeping )

4. Of the remaining 25, half are spent  davening, eating, and in the bathroom ( without much chance to sin)

5. Of the remaining 12.5 years , Yitchak offers to cover half with his own merit and asks Hashem to cover the rest .

6. If Hashem disagrees, Yitchak offers to cover them all, in the merit of the Akeida (binding of Yitchak)

There are multiple questions one  should ask here, among them:

1. From where do we see that the first 20 years is not subject to punishment, and what exactly does that mean ?

2. Does one really sleep 50% of the time?

3. Does one really spend half one’s awake hours davening, eating, and in the bathroom?

4. Is there really no opportunity to sin during these 3 activities? I can think of plenty personally !

We will focus on the first question for now, bearing in mind the other three, as they might affect how we understand the first as well .

Rashi points out that we learn that the first 20 years are not subject to punishment from the generation of the spies .

After the nation believed the bad report that the spies brought back, they were condemned  to wander in the desert for 40 years and die before entering Israel .

Those under 20 years were exempt from the second part of the punishment  and would live to enter the land .

From this, we see that one isn’t punished by Hashem for one’s sins until the age of 20.

We said this idea in various other places too , among them :

In the beginning of Parshas Chayei Sarah, Rashi brings the Midrash that Sarah was  free of sin at age 100 just like she was at 20.

In Parshas Korach, Rashi quotes Chazal who emphasize the severity of machlokes, in that whereas the heavenly court normally does not punish before the age of 20, due to the severity of the rebellion and machlokes it caused , even children died .

The question that cries out for an answer is as follows ?

How can it be that a 13 year old boy is treated as an adult in almost all regards, even to the point that he can be subject to capital punishment in a court, in the extreme case of the בן סורר ומורה ( wayward son), specifically at that age , but get off scott free for whatever he does, if he does not make it to a human court?

Paraphrasing  the words of the נודע ביהודה, can we really accept that a teenage boy can party as much as he wants, sleep around as much as wants, eat whatever he wants, and get off the hook because he is not yet 20?

If he is mature enough to be liable in court and to be able to sign on legal documents, how can he just get off free in the hands of heaven , and not get kareis or מיתה בידי שמים for the worst of sins, or at least the יסורים ( suffering) required to atone for them ?

And if he does not, what motivation is there to hold him back from sin, at a time of life when sin literally crouches at the door?

Clearly this cannot be quite as straightforward as it seems .

Various approaches can be taken, and  some have been suggested by various Achronim ( later authorities.)

1. Perhaps this is simply a concept exaggerated  by Yitchak in order to speak in our favour. 

Just like we clearly don’t sleep for half the 24 period, nor daven, eat, and go to the facilities for half our waking hours, not completely abstain from sin during that time, perhaps the idea is that the first 20 years are more prone to mercy and sometimes Hashem refrains from punishing during that period .

2. Perhaps the punishment is delayed until 20, but after that, one is punished for  his earlier sins too.

3. Perhaps there is no punishment during one’s lifetime for sins done before age 20, but one is still punished after death in Olam Habah ( the world to come )

4. Perhaps   one is  not punished severely during this time, to the point of death or kareis, but one still gets some form of punishment  

5. Perhaps one is not punished during this time at all, but one still does not get the great reward one gets for refraining from a sin one is tempted to do, 

6. Perhaps  one’s soul is still damaged by the aveira and requires repair through atonement  

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Shabbos 88 Choice and coercion in religious life 

On today’s daf, we are faced with 2 very different approaches to how the Torah was giving, so much so that it seems bizarre that the Gemora brings them one after another without noting any contradiction.

On the one hand , the Gemara learns from the passuk ויתישבו בתחתית ההר (” and they settled down at the bottom of ( or underneath) the mountain”- Shmot 19/17)  that Hashem  raised the mountain over us and threatened that if we do not except the Torah, we would be buried under it .

Although it is certainly within normative use to translate the word בתחתית as “at the foot of” , and not “under” , and this is probably the simple פשט , we can  explains that this derasha is based on the contrast between this word and another word used  in an earlier passuk  (Shmos 19/2) to describe their position, namely נגד (by or opposite) the mountain .

It seems clear from this that the Torah was forced on us, to the point that the Amora, Rav Acha bar Yaakov, makes the rather harsh point that this is in fact מודעא רבה לאורייתא , a strong argument for those who do not follow the Torah, seeing as it was given by force .

Straight after this , the Gemara brings statements of Chazal who understand the phrase “נעשה ונשמע” said by the people to imply that we accepted the Torah unconditionally and willingly , committing to keeping it even before we heard what was in it .

We could argue that this has nothing to do with accepting the Torah voluntarily, but rather the unconditional way in which we accepted that which was forced on us .

This could be  similar to if , chalila, a robber or powerful ruler (lehavdil) holds a gun to someone’s head –   one first immediately puts one’s hands up and says “Take anything you want, I will do whatever you say”, before actually hearing what he wants of one .

However, from the description of the 2 crowns that were given as a reward for this, and the story of the Sadducee who bothered Rava and mocked the way we accepted the Torah without first hearing whether we could handle it or not , it seems clear that the common explanation, namely that we indeed did indeed  accept the Torah voluntarily and unconditionally, is the correct one .

It is possible to suggest that these two forms of acceptance both took place, perhaps one after another .

Perhaps we first accepted the Torah voluntarily , but after hearing what was in it, or even before , started to have second thoughts? At which point we were told that it was now already binding on us and we have no choice but to accept it. 

This would be like making a voluntary vow , which once made is now compulsory, or entering a voluntary contract, which once signed , is now binding . See Tosfos on the daf who discussed this issue.

It could also be compared to a convert who voluntarily takes on Judaism, but who is now halachically Jewish, bound by the commandments, and unable to go back .

Alternatively, perhaps we were first coerced into accepting the Torah, and then later became excited about it and accepted it voluntarily. 

This would be similar to a child who is forced to go to school by his parent but then becomes excited about it and goes voluntarily.

Although interesting, the first explanation certainly fits the order of the pessukim better!

Nevertheless, we still need to explain why both these stages were necessary ?

If Hashem knew we would or did accept the Torah voluntarily, why did he force us to do so, particularly given the high risk that we would resent it and abandon it, as pointed out by Rav Acha bar Yaakov ? 

Rav Avraham Rivlin שליט”א , our mashgiach in Kerem b Yavneh, always makes an analogy to the different types of love we bless a bride and groom with ( it should be noted that on the next daf, the giving of the Torah is indeed compared to a wedding!)

Two of these are אהבה ( love) , and אחוה( brotherhood) 

Love is something personal, voluntary. 

A person chooses whom he wishes to love and be friends with. 

Brotherhood is something one has no say in at all- your brother is your brother whether you like it or not .

Love is something that can be temporary, unfortunately – even best friends often split up.

Brotherhood, in contrast is forever – one cannot “divorce one’s brother .”

We bless the bride and groom that their relationship  should experience the passion that comes with choosing who to love, but the stability and permanence of brotherhood .

Similarly, explains Rav Rivlin: It was essential for our love and passion for   Torah, that it be something we accept voluntarily .

Yet easy come, easy go, and something  we choose to love can often become less loved when the initial passion wears out.

As such, it was equally essential that our relationship with Torah also  contains “brotherhood”- an eternal and unbreakable bond, that weathers the highs and the lows and can never be broken.

This approach is fascinating, but could perhaps be questioned based on Rav Acha bar Yaakov’s point that, on the contrary, the fact that we accepted the Torah by coercion was actually an excuse to abandon it, not a reason to keep it forever !

Although this can perhaps be answered , there is another possibility I would like to suggest, which might also  bare some relation to Rav Rivlin’s approach.

There is a well-known, though counter intuitive Talmudic principle , that גדול המצווה ועושה ממי שאינו מצווה ועושה.” – one who performs a commandment he is obligated to perform is greater (gets greater reward) than one who performs a commandment voluntarily. ( see for example Avodah Zarah 3a, Kiddushim 31a )

This could be because someone who is forced to do something, has a natural temptation  to rebel and has to resist this urge to do so ( see Tosfos A.Z. 3a who takes this approach. ) 

This is in stark contrast to the passion with which  one fulfills a good deed which one has  chooses to do on his own .

As such, a child who becomes an adult celebrates the fact that until now, he only fulfilled commandments voluntarily, but know he will be fulfilling them because he is obligated to do so, and getting the increased merit for doing so.

Perhaps it is specifically for that reason, that once we had already accepted the Torah voluntarily, Hashem now forced the Torah on us.

Rav Acha’s point now supports this decision fully – precisely because we would now have an “excuse ” to rebel against what we had now been forced into , we have the potential to resist this urge and reach a far higher level and the accompanying merit. 

As such, this “coercion” now becomes one of the greatest kindness and opportunities that Hashem bestowed about us, perhaps even as a reward for our initial voluntary and unconditional acceptance! 

רצה ה.ק.ב.ה. לזכות את ישראל לפיכך הרבה להם תורה ומצוות

(מכות פרק ג פסוק טז)