Torah Musings Tue, 30 Sep 2014 13:07:32 +0000 en-US hourly 1 New Periodical: RJJ Journal LXVIII Tue, 30 Sep 2014 12:08:00 +0000 RJJ JournalNew issue of The Journal of Halacha and Contemporary Society LXVIII (Succot 5775, Fall 2014):

  • Letter From the Editor – R. Alfred Cohen, founding editor and steward of the journal for over 30 years, announces his retirement as editor. No hint of his successor. R. Cohen created a genre with this journal. He taught and inspired multiple generations of rabbis, including me. He published many groundbreaking articles but, more importantly, served as a Torah resource for scholars and laymen alike. Much of what you see on this website is due to the influence of R. Cohen and his journal. May he continue teaching Torah in good health for many years to come.
  • Using Tzedaka Funds to Pay for Fertility Treatments by R. David Sukenik – Two separate questions: 1) can infertile couples use their own tzedaka money to pay for their fertility treatments? 2) can people in general use their tzedaka money to pay for the fertility treatments for infertile couples? Yes
  • Honoring Parents by R. Alfred Cohen – The editor leaves the journal with a comprehensive article (more than half the issue) on the mitzvah to honor parents. Starts from the basics and addresses many complex cases such as divorces and adoptions.
  • Practical Halachic Questions for Anatomy Students by Matthew Schaikewitz – A medical student discusses common issues arising from cadaver study. I find it odd that he issues rulings but he generally does a good job.
  • When is a Kallah Required to Cover her Hair? by R. Dovid Emanuel Feinberg – Quotes and explains all the opinions: before the wedding ceremony, after the ceremony but before the reception or the next morning.
  • Letters
    • Dr. Ira Taub and R. Moshe Revach discuss R. Revach’s article on giving tzedaka to collectors. I think R. Revach writes too unequivocally, since in his article he notes that authorities disagree while here he says that the halacha remains constant.
    • R. David Zaback corrects a citation on cloning
    • Eliezer Eisenberg, R. Ezra Schwartz and R. Micah Segelman critique R. Yosef Gavriel Bechhofer’s article on deciding matters of belief. R. Bechhofer responds at length with citations and direct quotations.
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Daily Reyd Tue, 30 Sep 2014 12:05:59 +0000
A Yom Kippur Guest
Rabbis sentenced to prison for selling rabbinic ordination diplomas
▪ Different than the “Shidduch Crisis” but it’s hard to believe they are unrelated: America’s Singleness Problem
How Time’s Arrow and the Phrygian Half-Step Make Jewish Music Holy
A Rude Awakening in Indiana’s Marshmallow Country
▪ Another kosher luxury item: Russian science brings ‘caviar’ to kosher table
Chief rabbis oppose Jewish-Christian prayer service
▪ Why does the same crisis continue year after year? At some point, the yeshivos should change their behavior: Compassion from Sea to Shining Sea: Askonim From Across the Nation Tackle the Lakewood School Admission Crisis
Postal Service issues commemorative stamp for Rabbi Ovadia Yosef
▪ Rav Soloveitchik did not do Kaparos at all: Rabbi Stav & ‘Tzohar Rabbonim’ Come Out Against Kaporos
Yom Kippur Without Fasting
Why (Some) Jews are Conservative

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Spiritual Math II Tue, 30 Sep 2014 01:30:38 +0000 mathby R. Moshe Schapiro

The second in a five-part series discussing the meaning of the phrase in Selichot “ve-lo shavah lanu.” Other installments can be found here. -ed

= 0

Within the interpretation that the word “shavah” connotes value or worth, there is another way to understand the meaning of the phrase “ve-lo shavah lanu.” The Talmud (Sukkah 51a) describes an apocalyptic scene in which God slaughters the Evil Inclination:

In the time to come the Holy One, blessed be He, will bring the Evil Inclination and slay it in the presence of the righteous and the wicked. To the righteous it will have the appearance of a tall mountain, and to the wicked it will have the appearance of a thread of hair. Both the former and the latter will weep. The righteous will weep saying, “How were we able to overcome such a tall mountain?” The wicked also will weep saying, “How is it that we were unable to conquer this thread of hair?”

This Talmudic passage is perplexing. Is the yetzer ha-ra a mountain or a hair? What accounts for the extreme difference in perception between the righteous and the wicked? R. Yosef Dov ha-Levi Soloveitchik (Beit Ha-Levi, Bereshit s.v. be-mas sukkah) writes that in fact the Evil Inclination is merely the power of our imagination. The righteous, who never gave in to their desires, imagine that the yetzer ha-ra must be monstrous and mountain-like. They will shed cathartic tears. However, the wicked who never resisted the Evil Inclination know that the desire is always much greater than the actual pleasure gained. To the wicked, who will finally contemplate their deeds at the end of time, the yetzer ha-ra will seem like a pathetic, puny thread of hair and they will cry tears of bitterness at their inability to resist its temptations.

The Beit Ha-Levi explains that this is the meaning of the Selichot prayer: “We have strayed from Your commandments and from Your benevolent statutes and it was not worth it to us.”1 Our yetzer ha-ra fooled us into thinking that we would gain so much pleasure from violating God’s will, but in the end we realize our folly. We have all experienced that uncomfortable sense of guilt and embarrassment after having given into our desires and realizing that it was not even worth it.

R. Meir Schiff [17th cent.] (Chidushei Maharam Schiff, Chullin, Drushim) also notes this quirk of the human imagination. The Midrash (Kohelet Rabbah 1:13) asserts, “A person does not die with half of his desires in hand. For he who has a hundred, desires to make of it two hundred.” One does not have to be a math professor to realize that if you have a hundred and you want two hundred that you do in fact have half of your desires in hand. The Midrash’s calculations are seemingly flawed. The Maharam Schiff explains that while it is true that one hundred is half of two hundred, the half that the person does not have seems much larger to him than the half he already has. The Midrash is precise in its words. He does not have “half of his desires.” For that which is desired will always seem greater.

R. Shmuel Falkenfeld [1737-1806] (Beit Shmuel Acharon, Parshat Ekev) assumes that the trait to amplify the importance of unsatisfied desires was implanted in us by God and must serve a higher purpose.2 Instead of dreaming about material and physical gratification we should endeavor to exaggerate the significance of unfulfilled spiritual goals. We should adopt the perspective that what we have accomplished in terms of spirituality is relatively insignificant and that which we have not yet attained should appear larger and more tantalizing in our eyes. R. Falkenfeld explains that this concept of spiritually-focused imagination is the key to understanding a parable offered by Chazal to illustrate why Moshe Rabbenu excelled in yirat shamayim compared to the rest of his generation:

R. Chanina said, “To illustrate by a parable: if a man is asked for a large vessel and he has it, it seems to him like a small vessel. If he is asked for a small vessel and he does not have it, it appears to him like a large vessel” (Berakhot 33b).

The common explanation of this passage is that to fulfill what might be considered a difficult request is easy for someone who has the means to fulfill it, whereas even a small request is made difficult by not having those means. In the case of Moshe Rabbenu, the small and large vessels refer to small and large spiritual demands. Moshe Rabbenu, who had already achieved great spiritual heights, could consider a demanding challenge to his yirat shamayim like a minor request. The others of his generation who were not possessed of such greatness, found that even a small spiritual challenge seemed overwhelmingly large.

R. Falkenfeld presents a novel interpretation of this parable. The person who owns the large vessel views it as a small vessel because human nature is to devalue that which is already in our possession. However, if a small vessel is requested and he does not yet own it, human nature will cause him to view it as a large vessel. Moshe channeled this natural instinct toward spiritual endeavors. He viewed whatever attainments he had made thus far, no matter how great they might have been, as small matters compared to what was yet left to accomplish. Conversely, every new spiritual demand, no matter how small, loomed large in Moshe Rabbenu’s eyes. Moshe’s contemporaries, whose imaginations were not as focused on spiritual matters, could not match Moshe’s ambitions and consequently could not equal his accomplishments.

While we must strive to emulate Moshe Rabbenu, to channel our imagination toward spiritual goals, we must also maintain the battle against getting caught up in our overblown expectations of physical and material pleasure. The Beit Ha-Levi (Parshat Yitro, s.v. lo tachmod) instructs us how to fight this battle. We can all imagine the following scene: a person overpowered by his desire for a cheeseburger is running down a snow-covered street. Just as he is about to reach the Golden Arches® he slips on the ice. The momentary fear that he might fall seizes him and drives the thought of a Big Mac® right out of his mind. Even a small amount of fear can dispel the physical urges that sometimes take hold of a person. The Beit Ha-Levi concludes that the only way to overcome the maddening clutches of the yetzer ha-ra is with the power of fear. However, this fear must be a healthy one.

After the revelation of God on Mt. Sinai, the people told Moshe Rabbenu that they were terrified by the awesome spectacle they had just witnessed. Moshe Rabbenu explained to them God’s purpose in revealing Himself in such a daunting manner: “Do not fear. For God has come in order to elevate you; so that the fear of Him should be upon your faces, so that you shall not sin” (Shemot 20:17). This verse seems to contradict itself. First Moshe Rabbenu tells the people not to fear and then he says that the purpose of the revelation was that they should fear. The Sefat Emet (Parshat Yitro, 5648) explains that God does not want us to experience a fear that is paralyzing and destructive. Rather, the fear of God should be experienced in a way that is motivating and constructive. If we can ingrain this uplifting sense of awe into our consciences, then when an illicit desire arises in our hearts it will be banished by the stronger sensation of overwhelming dread of the Almighty.

Before committing a sinful act we imagine we will experience a worthwhile pleasure, however, in the end we know the truth: the value of a sin is zero. During Selichot we proclaim that we have sinned and we admit that “lo shavah lanu” – our sins have gained us nothing. Defeating the natural human tendency to exaggerate the appeal of what we desire is difficult. Developing a sincere feeling of yirat shamayim and orienting our desires toward spiritual attainment are lifelong endeavors. By proclaiming “lo shavah lanu” we are committing ourselves to this struggle.

To be continued tomorrow…

  1. See Rashi to Iyov 33:27. 

  2. The Beit ha-Levi (ibid.) argues that this peculiarity of human nature was not God-given, but was acquired by man when he ate from the etz ha-daat tov va-ra –“the tree of knowledge of good and evil.” He even suggests that the name of the infamous tree should be understood as “etz ha-daat tov”–“the tree of thinking something is good,”“va-ra”–“but it is really bad.” 

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Daily Reyd Mon, 29 Sep 2014 12:04:36 +0000
▪ If passengers are delaying take-off, throw them off. But if they can be easily accommodated, do so: Haredim’s refusal to sit by women delays El Al flight
▪ Everything in life is a balance. Thankfully we have many holidays in the year: Is It Right To Ditch Secular Relatives for the High Holidays?
▪ A call for a counter-culture: A Moral Alternative
▪ Critiquing the ethics of consent: We Need to Ban Meat
▪ Don’t feed the crazies: Careful What You Click For
Sharansky: Post-Liberal Europe and its Jewish Problem
▪ Oy vey. A non-Orthodox rabbi makes a stink about being thrown out of a non-kosher restaurant: Rabbi, Wraps owner meet after Rabbi says he was thrown out
▪ Nice video by the Chofetz Chaim Heritage Foundation making the rounds (is that Gavriel Sanders narrating?): Gossiping on Social Media? See How Quickly Rumors Can Spread and Take Down an Innocent Man

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Spiritual Math Mon, 29 Sep 2014 01:30:59 +0000 imageby R. Moshe Schapiro

This is the first in a five-part series continuing throughout this week -ed

Spiritual Mathematics: Math Phobia and the Yamim Nora’im

= ?

We repeat the phrase “sarnu mi-mitzvotecha u-mi-mishpatecha ha-tovim” – “We have strayed from Your commandments and from Your benevolent statutes”around forty times from the first night of Selichot until the last moments of Neilah, and while we understand these words, the meaning of the three words that follow: “ve-lo shavah lanu” is ambiguous. The scriptural source for the expression “ve-lo shavah lanu” is found in Iyov 33:27, in which Iyov’s friend Elihu ben Barachel encourages Iyov to make a public confession of his sins and say, “chatati ve-yashar heeveiti ve-lo shavah li”- “I have sinned, and I have made crooked that which is straight and it is not shavah for me.” The word shavah means “equal,” but that does not seem to make much sense in this context. The Talmud (Yoma 87a) derives from this verse that one who seeks his friend’s forgiveness must appeal to him three times in the presence of three people. Rashi explains that the three expressions “chatati” and “ve-yashar heeveiti” and “ve-lo shavah li” are confessionary phrases and therefore we derive from them the requirement of making three attempts to appease a friend.1 This is in consonance with the interpretation of Metzudat David, who understands that the last phrase “ve-lo shavah li” is synonymous with the previous phrase “ve-yashar heeveiti.” The word shavah means equal in the sense of straight. Accordingly, the translation of the Selichot prayer should be, “We have strayed from Your commandments and from Your benevolent statutes and we have not kept to the straight path.” However, many commentators are bothered by the unnecessary redundancy of Metzudat David’s reading of the phrase, and suggest alternative understandings that can deepen the meaningfulness of our prayers during the Yamim Noraim season.

= ∞

The book of Mishlei declares that terrible punishments will befall those who scorn the Torah: “tachat ki sanu daat ve-yirat Hashem lo bacharu” – “because they hated knowledge and did not choose the fear of God” (Mishlei 1:29). The Vilna Gaon (ad loc.) emphasizes the failure to “choose.” To choose implies that there are two roughly equal alternatives. Ideally, one should proactively pursue mitzvot and Torah study, but even if one is not motivated to do so, when a mitzvah presents itself in an easy and convenient way, one should be willing to make the minimum effort to fulfill that mitzvah.   Unfortunately, for the scorners of the first chapter of Mishlei, the Torah is not even a choice. It does not rate for them at all. The Vilna Gaon explains that this is the same idea being expressed in the phrase “ve-lo shavah lanu”. The Hebrew root “shavah” appears in the Bible with the meaning to be equal, namely, to have “worth” or “value.” For instance, in Esther 5:13 Haman, upset that Mordechai would not bow down to him, tells his wife and advisors, “ve-chol zeh einenu shoveh li” – “all this [my wealth and political power] is of no value to me.” The Vilna Gaon translates the Selichot prayer- “We have strayed from Your commandments and from Your benevolent statutes and they [the commandments and statutes] were not of value to us.” It is terrible that we have strayed, but it is even worse that the reason we did so was a failure to value God’s commandments.

Why do we not we value the commandments, and what can we do to help ourselves to value them? Two fundamental deficiencies underlie our lack of appreciation of the mitzvot. The first problem with which we struggle is that many of the commandments have no clear purpose or readily understandable rationale. Rambam distinguishes between two categories of commandments: “The ‘mishpatim’- ‘ordinances’  are commandments whose reason is obvious and the benefit derived in this world from doing them is well known; for example the prohibitions against robbery and murder, or the commandment of honoring one’s father and mother. The ‘chukim’ – ‘statutes,’ on the other hand, are the commandments whose reason is not known” (Hilkhot Meilah 8:8). It is human nature to devalue that which we do not understand and Rambam (ibid.) cautions against this kind of thinking:

A law for which he finds no reason and understands no cause should not be trivial in his eyes…behold it says in the Torah, “u-shemartem et kol chukotai ve-et kol mishpatai va-asitem otam” – “And you shall observe all My statutes and all My ordinances and perform them” (Vayikra 20:22). Our Sages commented that the verbs “observe” and “perform” refer to both the statutes and the ordinances (Sifra 10). Now “va-asitem” – “and perform” is understood; it means to perform the statutes. But “shemirah”- “observe” means that one must be careful concerning them and not imagine that they are less important than the ordinances.

According to Rambam by recognizing the tendency to devalue that which is not understood, we become self-aware and can overcome that tendency.

However, Rambam’s presentation of the Sifra is problematic because the Sifra defines “shemirah” differently in another location. Echoing the words of Vayikra 20:22, the Torah states, “u-shemartem mitzvotai va-asitem otam” – “and you shall observe My commandments and perform them.” Rashi (quoting Sifra 8) explains: “u-shemartem” – “and you shall observe,” this refers to study; “va-asitem” – “and perform,” this refers to action. Sifra clearly defines “shemirah” as study, not as a humble religious posture towards the commandments as portrayed by Rambam. Rambam makes use of the Sifra’s emphasis on “shemirah” of chukim, but seems to ignore the Sifra’s understanding that “shemirah” means study.

We can harmonize Rambam’s comments with the words of the Sifra by drawing an analogy to another area of human endeavor. The workings of the human brain are frustratingly complex, yet those who study neurology will not demean the structures and mechanisms of the brain. On the contrary, they will be filled with awe and inspiration both from the mystery which hovers over their work as well as from the conviction, formed from years of study, that the brain is indeed a brilliant, ordered system, even if they have not yet plumbed its depths.  The way to find value in the commandments of God is to study them. After working through the intricacies of a dispute between Rashi and Tosafot and laboring over a long Beur Halakhah, one may not understand the philosophical underpinnings of a given commandment, but a sense of meaning will set in. When Rambam writes regarding the statutes that “one must be careful concerning them and not imagine that they are less important than the ordinances,” he is describing the result of “shemirah.” The way to achieve that result- shemirah – is as the Sifra states, through study. The less a person understands the purpose of a commandment the more he should delve into its details and forms. Like the study of the brain, he may never fully understand the essence of the mitzvah, but he will never again be able to diminish its value.

The second aspect of our lack of appreciation for the mitzvot is that we do not have a concrete notion of what the reward for observing the commandments will be. We live in a physical world and our ability to imagine a spiritual concept of reward is strikingly limited. The Talmudic sage Rav would often say, “In the World to Come there is no eating, no drinking, no procreation, no business, no jealousy, no hatred and no rivalry. Rather, the righteous sit with their crowns on their heads and delight in the radiance of the divine Presence” (Berakhot 17a). Now, frankly, to most people that probably sounds incredibly boring. In Jewish folklore it is said humorously that there is no difference between Gan Eden and Gehinnom. In both, one sits in a Beit Midrash and studies Gemara. For some people that is Gan Eden and for others it is Gehinnom. Our physical orientation cannot be denied, but a healthy dose of perspective may help to bridge the gap between our limited perception in olam ha-zeh and the proper sense of appreciation for what lies before us in olam ha-ba.

The Dubner Maggid (Kol Negidim s.v. havel havalim) explains the opening message of Kohelet that everything in the world is “havel havalim” – “vanity of vanities” by noting the developmental nature of man. A baby’s greatest desire is for his mother’s milk. After being weaned, he shuns his mother’s milk and wants to play games of pretend. The teenager does not enjoy playing horsey, but derives tremendous pleasure from other activities, such as playing video games. Later in life, the same person finds these games silly and gets his pleasure out of making money and acquiring fancy possessions. Even in adulthood our tastes develop to become more sophisticated and discerning, so that what we once enjoyed becomes a memory belonging to a past version of ourselves while we go on to attain the next perceived source of pleasure. This is the meaning of havel havalim: each new vanity is just the latest in a long line of vanities.

As mature adults we can recognize that what we once thought was pleasurable was really childish and foolish. While we may not be able to comprehend the exact nature of the reward for observing mitzvot, we can now dimly perceive that when we leave this world it is reasonable to assume, based on all our past experiences, that the forms of pleasure and sources of happiness in the next world might be different, but, nevertheless, will be fundamentally satisfying. Unlike a child who cannot even imagine how anyone could possibly enjoy certain adult activities, we should have the perspective to appreciate that something truly great awaits us in the final and eternal stage of our existence.

Every mitzvah equals infinity. Maharal (Tiferet Yisrael 13) explains that it is for this reason that the Talmud asserts, “sechar mitzvah be-hai alma leika” – “there is no reward for commandments in this world” (Kiddushin 39b). The intrinsic value of a mitzvah is boundless and its reward is immeasurable. The physical world which is finite cannot possibly contain within it the infinite nature of the reward for mitzvot. During Selichot we confess that God’s commandments have not been “shavah lanu.” We have failed to perceive the worth of His commandments, but by committing ourselves to Talmud Torah and by contemplating our own developmental nature we can strive to correct this serious flaw.

To be continued tomorrow…

  1. However, see Ran (ibid.) who explains the Talmud’s inference from this verse differently. 

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Audio Roundup Sun, 28 Sep 2014 21:19:54 +0000 by Joel Rich

But lurking beneath the surface are several unresolved issues not so quickly dismissed. One of them, raised by Heilman, concerns the “contradictory and often double lives” of Modern Orthodox Jews, as exhibited in their often “exquisite feats of compartmentalization.” Indeed, this may be the only way Modern Orthodox Jews can make the two parts of their identity, the modern and the Orthodox, work. The late Charles Liebman, the most influential analyst of American Orthodoxy in the postwar era, once even held up the Orthodox tendency to compartmentalize as an ideal for other kinds of Jews to emulate.

Me-compartments are for trains, not MO minds
~ ~ ~
Freudian slip?

Q: Is it forbidden to use WhatsApp?
A: If it contains Lashon Ha-Rav, insults and idle talk.

Please direct any informal comments to

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Happy New Year Wed, 24 Sep 2014 12:30:19 +0000 לשנה טובה תכתבו ותחתמו

Le-shanah tovah tikasevu ve-sechasemu

May you be inscribed and sealed for a good year

Click here for the Ezras Torah synagogue calendar for Rosh Hashanah: link.

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Daily Reyd Wed, 24 Sep 2014 12:01:55 +0000
For One Convert to Judaism, the Days of Awe Mark a Renewed Commitment—This Year More than Ever
▪ Trust in God, not mystics (Deut 18:13): Uncovering the mysteries of mystical rabbis
Ten commandments for a more welcoming synagogue
▪ Deut 17:16: Only 12 Jews left in Egypt, community leader says
Kosher cheese whiz preps unusual holiday fare
What Do We Mean by ‘Erev Rosh Hashanah?’
R Joel: Roadmap for Sustainable Excellence

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The Limits of Teshuvah Wed, 24 Sep 2014 01:30:38 +0000 imageby R. Gil Student

Teshuvah, repentance, breaks through the heavenly barrier, reaching the divine throne and tearing evil decrees. However there is a large distance between heaven and earth. Does teshuvah have this same piercing power in the earthly realm? Is there a Jewish concept of parole or even dismissal of charges due to repentance?

I. Teshuvah and Theodicy

Tosafos (Kesubos 30b sv. din) ask the traditional question why bad things do not always happen to bad people. Someone who commits a sin that merits execution should be smitten by God. Yet we see many such people living long lives. Today, when many find it difficult to accept that truly bad people exist, the common question is why bad things happen to good people. Traditionally, however, the more frequent question was about the success of the wicked. As Jeremiah (12:1) asks, “Why does the way of the wicked prosper?”

Tosafos offer two answers: 1) the wicked repent and in response God lessens or entirely removes the punishment; or 2) a merit of the wicked, some good deed they performed for which they deserve reward, delays their punishment. I do not believe that these answers are intended as comprehensive theodicies. I suspect that Tosafos would accept other answers, such as those suggested by other commentators.

II. Teshuvah and the Commutation of a Sentence

Regardless, Tosafos’ first answer raises another question. A wicked person’s teshuvah removes the sin or even transforms it into something positive. This change leads God to lighten or even remove entirely the punishment. Does teshuvah similarly relieve the perpetrator from human punishment? For example, should a (duly authorized) religious court execute a murderer who undergoes a religious transformation via teshuvah or should it set him free? The Noda Bi-Yehudah (1:OC:35) puts it this way: If witnesses to a murder only come forward decades after the event, and in the meantime the murderer repents and completely turns his life around, should the court convict and execute him for the murder?

R. Yaakov Weil of fifteenth century Germany (Responsa Mahari Weil, Dinin Ve-Halakhos 61) states that a blood avenger (Num. 35; Deut. 19) retains his right to revenge even if the murderer repents. Mahari Weil assumes that the earthly punishment is not averted by teshuvah. However, he does not explain why.

R. David HaKohen of Corfu (Responsa Radakh 30:2) was asked whether a mourner for a converso father has the same priority as other mourners. In an age when only one person recited kaddish at a time, priority was important. If a mourner for a sibling was present, would the mourner for a converso take precedence because he is saying kaddish for his father? Or does the fact that his father was a converso, who under fear for his life converted to Christianity, remove the obligation to recite kaddish and therefore remove all priority for the mourner. The Radakh rules that the mourner has full priority as someone mourning for his father.

In the course of this discussion, the Radakh points out that criminals are required to confess immediately prior to their executions. However, we still treat them like wicked people even after their deaths, forbidding their family from mourning or burying the deceased in family plots. The Radakh suggests that mere recitation of a confession does not constitute repentance. However, a truly penitent criminal, after his execution, is buried among his family and is mourned. R. Yosef Engel (Gilyonei Ha-Shas, Makkos 13b) points out that the Radakh would still have the court execute a repentant criminal. The lenient treatment does not undo the sentence.

R. Engel (ibid.) discusses three reasons why the court should not absolve a repentant criminal.1 However, I am not convinced they all withstand scrutiny.

III. Who Knows?

The Mabit (Beis Elokim, Teshuvah ch. 2) offers two reasons why a court must still punish a repentant criminal. One of these is that the court cannot know who truly repents. I find this the most surprising of all reasons because courts already have a procedure for detecting penitents. Indeed, the responsa literature indicates that communities have needed to use this procedure over the ages.

Men who engage in wicked behavior are invalid as witnesses in court. The Gemara (Sanhedrin 25b) describes how such men regain their credibility. In theory, all they need to do is repent. However, in practice they must prove their repentance by going in the other extreme. Gamblers must destroy their gambling paraphernalia and not even play the gambling game without money; interest lenders must tear up their contracts and refrain from lending with interest in even permissible situations; merchants who sell forbidden fruits of the Shemitah year must pass another Shemitah year without succumbing. Jewish law allows for criminals to demonstrate their changed ways, to prove their teshuvah.

Similarly, chazzanim and shochetim, cantors and slaughterers, who are caught sinning must be removed from their positions and can only regain their jobs after demonstrating their teshuvah. As can be expected, many such cases have arisen over the years, leading to wide discussion of general principles and specific cases.2 The bottom line is that religious courts already recognize repentance and have a mechanism for determining its sincerity. Therefore, this reason seems difficult.

IV. Then What?

The Noda Bi-Yehudah (1:OC:35) argues that if courts commute sentences for penitent criminals, they will effectively undermine the entire judicial system. Of what purpose is a law if we do not enforce it? God intended the punishments as a deterrent. If no one is ever punished, and a convicted killer can easily say that he repents, then the divinely ordained punishment is undermined.

This seems to be a combination of the previous concern of being unable to determine true repentance and another concern about deterrence. We already responded to the first issue. This would mean that not just anyone could claim to repent. Such a claim would have to be accompanied by appropriate behavior. But even then, someone wishing to avoid execution could falsely change his behavior. While a cantor wishing to regain his job could fake repentance, presumably someone awaiting execution has greater motivation.

However, it seems the validity of this concern is a debate between Rashi and Tosafos. Rashi (Makos 5a sv. mai ta’ama) states that a criminal who confesses before witnesses testify against him in court exempts himself from punishment. Tosafos (ad loc., sv. de-be-idna) argue that this position would nullify all punishments. Criminals could simply immediately confess their crimes, thereby avoiding punishment. This seems to be precisely the Noda Bi-Yehudah‘s concern about repentance.

R. Tzvi Hirsch Chajes (Glosses, Makkos, ad loc.) defends Rashi on two points. First, he notes that the conclusion of the Gemara in Bava Kama (75b) is that someone who confesses to a fine (as opposed to physical punishment, which is Rashi’s extension) is exempt from paying the fine, but only if his confession obligates him to pay the principal amount. A confession that totally exempts one from paying anything is too easy. Similarly, R. Chajes contends, Rashi is arguing that someone who confesses to murder will still be punished, just not executed. The court will find a lesser punishment to impose. However, R. Ya’akov Ettlinger (Arukh La-Ner, Makkos, ad loc.) convincingly argues that Rashi on Bava Kama reads the Gemara differently and allows for a confession that completely exempts the perpetrator.

R. Chajes makes another point that indirectly responds to the Noda Bi-Yehudah. The Sages were not concerned that courts would only administer the Torah’s punishments infrequently. To the contrary, they embraced the concept. The Mishnah (Makkos 7a) states that a court should execute at most once a decade, or even less frequently. It seems that allowing repentance to remove an execution sentence is consistent with this Talmudic attitude. R. Chajes suggests that this explains Rashi’s view that a criminal is exempted from punishment if he confesses, even without full repentance, before the court receives testimony against him. This would also seem to respond to the Noda Bi-Yehudah‘s explanation for the reason that courts punish a penitent criminal.

V. Sin and Punishment

The Mabit‘s second reason why a court must punish a repentant criminal is that all sin requires punishment. Even after teshuvah, the sin must still be punished. Either a court will punish the criminal or God will. The Mabit explains that this is why Tosafos say that God will lighten the punishment of a penitent sinner. He must still administer some punishment. And so must a human court.

However, this approach seems to ignore a key phrase in Tosafos. Tosafos explicitly state that God either lessens or removes the punishment. There is at least some case in which God refrains entirely from punishing a repentant criminal. R. Ya’akov Emden (She’eilas Ya’avetz 2:9) goes so far as to disagree with Tosafos over this phrase. R. Emden believes that every criminal must be punished.

Allow me a brief digression to describe R. Emden’s case because it is so interesting. One of the attendees at R. Emden’s private minyan reluctantly went to the main shul in town and saw someone treat the shul disrespectfully by smoking a pipe at the entrance during service. This man objected and knocked the pipe out of the other man’s mouth. This other man then pulled out a knife and stabbed the first man fatally, in shul. Apparently, there was insufficient evidence to convict the killer so the local (gentile) court was willing to acquit him if he swore his innocence. The perpetrator’s rabbi ruled that he was allowed to swear falsely to save his life. R. Emden wrote this responsum to argue that this murderer, even if penitent, must be punished and may not swear falsely in court.

VI. Inadmissible

The Maharal (Nesivos Olam, Teshuvah, ch. 2) offers two related reasons why a court cannot change its sentence based on the perpetrator’s repentance. First, earthly courts only focus on the bad, the crime. In contrast, the heavenly court looks at all sides of the issue, including the good. I think this means that God considers all extenuating circumstances, including mindset and subsequent developments. A human court can only look at the facts of the crime and not the broader picture.

Maharal adds that teshuvah brings an individual closer to God. It is a change in the relationship between an individual and God. Therefore, only God can accept penitents and no one else. A human court has no place in this personal relationship. This second, mystical approach is difficult to understand given the practical reality of accepting penitent chazzanim and shochetim. The human court is not accepting teshuvah but recognizing its effect on the perpetrator.

Perhaps the Maharal means that teshuvah is inadmissible in a criminal trial in a religious court. Certainly American judges are limited in the evidence they can consider. Evidence obtained illegally or otherwise inadmissible cannot be utilized in reaching a decision. We can easily transfer this concept to a religious court and suggest, based on the Maharal, that repentance is inadmissible in a Jewish criminal trial. However, in determining rehabilitation, which is not a trial, repentance is admissible as a character assessment.

The Mishnah (Avos 1:6) tells us to judge every person–all the person–favorably. Some commentators (e.g. Sefas Emes) interpret this to mean that we must look at a person and consider his whole personality and his complete circumstances rather than looking at a specific incident. From what we have learned, this is a divine perspective. Human courts are procedurally limited in their focus. On a personal level, though, we are asked to look more broadly, to see a person’s bigger picture which is usually more positive.

As we enter Rosh Hashanah and the season of heavenly judgment, we pray that our own larger picture be taken into account. Our many merits should lighten the load of any misdeed we may have committed. In preparation, we can consider how we can judge others with this heavenly perspective. By acting more divinely, we can see the world more positively and, in return, be judged favorably as well.


  1. I first became aware of R. Engel’s discussion from a Shabbos Shuvah lecture by R. Ephraim Kanarfogel over 20 years ago. 

  2. See Magen Avraham 53:8; Shakh, Yoreh De’ah 2:11; Pischei Teshuvah, Yoreh De’ah 2:5; Shulchan Arukh, Yoreh De’ah 119:15; Taz, ad loc. 16. 

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Beyond Words Tue, 23 Sep 2014 22:30:14 +0000 sinai_shofarBeyond Words: The Dance Between Knowing and Not Knowing Hashem

by R. Yehuda Krohn, Psy.D.

This is for anyone who, even as Rosh Hashanah approaches, faces doubt – in particular questions of Emunah/belief. The source of doubt could be one’s own uncertainties or perhaps those of someone we know.

Questions may arise about Hashem’s existence, the compatibility of science and Torah, or the presence of suffering and evil in the world. They may involve measuring the congruity of Torah values with those modern values we would not wish to dismiss (e.g., inclusivity). The questions may derive from a comparative religion course we once took.

The list is not exhaustive, but for many who try to find inspiration and connectedness in the month of Elul, it can be exhausting – or at least depleting of the spirit. It may as well lead to a sense of alarm, shame and/or isolation. Something along the lines of “Why do these questions bother me? Given that I entertain them, can I even consider myself Frum? How would others in my community relate to me, if they knew what went on inside my head?”

I would like to suggest a limud zechus/positive reframe for anyone who, despite his desire to be observant and to belong, is being gnawed at by doubt. It starts with a Gemara toward the end of Makkos (23b, 24a).

Rabbi Simlai expounds: Six hundred and thirteen Mitzvos were said to Moshe – 365 negative commandments, corresponding to the days of the solar year; 248 positive commandments, corresponding to the limbs of a person. (I will assume that up to this point, most of us are familiar with the material.) Rav Hamnunah adduces a Biblical proof: Torah was commanded to us by Moshe, an inheritance to the congregation of Jacob (Devarim 33:4). The word “Torah” has a numerical value of 611; [whereas] the commandments of “I (am your G-d)” and “You shall have no (other gods)” we heard directly from the Mighty one (i.e., G-d himself).1

So, 611 Mitzvos – corresponding to the word “Torah” – were conveyed to us through Moshe Rabenu and 2 Mitzvos came directly from Hashem. It would seem odd, given the above, that the one word with which we try to capture the essence of the Five Books of Moshe – namely “Torah” – points to an incomplete number of Mitzvos. Moreover, the Mitzvos that are excluded from the count arguably lie at the very foundation of all other Mitzvos. Why should this be?

Perhaps, the two Mitzvos we heard directly from Hashem are indeed fundamentally different than the others. More specifically, they were encoded in our collective conscious/unconscious differently than were all the others.

Har Sinai was not simply an awe inspiring event for the Jewish people. It was traumatic – particularly the moments that Hashem commanded, “I am your G-d… You shall have no other gods…” We would have been absolutely and utterly powerless as the words thundered down upon – or, more accurately, surrounded – us. It was not just a near death experience. The Rabbis teach us that our souls did, at least temporarily, take leave of our bodies, only to miraculously return.

Trauma is encoded differently than are other memories. Typical memories are verbal in nature and tend to be recalled, in relation to time, as would be chapters in a book. Trauma, in contrast, is imprinted, in iconic fashion, on a different part of the brain. It typically resides as a group of loosely connected images, sounds and tactile impressions. Most significantly, we typically don’t have access to trauma, when trying to recall it. Yet, it may intrude, as a flashback, when we are not trying to recall it. This leads to trauma being unknown at a verbal, semantic level, while being intimately known at a visceral level – one that is disconnected from the dimension of time.

For some reason, Hashem chose to impart to us the fact of His existence – Anochi Hashem – in a manner that we simultaneously recall and don’t recall, know and don’t know. Perhaps it would be too easy (Nahama Dikisufah/humble pie) if we had the more conventionally typed experience of his presence. Alternatively, in order for the Jewish people to withstand the challenges they’ve faced over millennia of exile, they need a belief or, more accurately, a faith that is safely ensconced in a realm beyond both time and reason. Our Emunah would, thus, be shielded from, what at different points of time, would seem to be overpowering logic-based counterargument.

Either way, the word “Torah” (e.g., equaling 611), which also means “teaching”, cannot fully capture the two commandments that we recall, but don’t recall, know, yet don’t know, given the traumatic manner they were seared into our brains. Even as we listen in Shul to the narratives of the Sinai experience, the primarily verbal, temporal nature of the Kriah/reading, would not and could not fully connect with our collective memory of the event – one that is beyond both words and time.

For many individuals, the knowing, yet not knowing is experienced as uncertainty and doubt. The challenges they face with Emunah are less a function of waywardness, and more a natural, almost expected outcome of the manner that Hashem chose to reveal Himself.

All the same, persistent, gnawing doubts tend to deplete our energy; denial of access to vital memories robs us of our sense of connectedness. This is where Rosh Hashanah and the Shofar come to play.

Rabbah says. God has said “Say before me [verses corresponding to] Kingship, Memory and Shofar; Kingship so that you may coronate Me; Memory so that memories of you should come before Me for the good; and with what? The Shofar.” (Rosh Hashanah 34b)

According to Rabbah, the Shofar is the vehicle, not only for invoking good memories, but for the coronation of Hashem. How fitting! Shofar represents sound without speech. (Hence, Kol Shofar and not Divrei Shofar.) It is the unarticulated sound of the Shofar that bathes and nourishes our timeless, wordless memories of Sinai. Moreover, the Shofar of Rosh Hashanah bridges 3300 years and sets resonating our collective memory of the Shofar of Sinai and, with it, the memories of our most direct experience of Hashem.2

It is conceivable that we would not be consciously aware of an “Emunah surge” during the Shofar blowing. All the same, it is hard to imagine that this primal, visceral Mitzvah not touch us in ways that leave an impression… and perhaps a sense of being a little bit less alone.

May we all merit this Rosh Hashanah to reconnect Be’emunah Shelaimah to our experience of Hashem’s Kingship and to be granted a Kesivah VaChasimah Tovah.


  1. In fact, the language of the first two commandments indicates that Hashem is speaking directly to the Jewish people, whereas the language of subsequent commandments indicates that Moshe is referring to Hashem, as he conveys the commandments. 

  2. We may homiletically add that, in this context, the Gemara’s term Zichronos/Memory refers to our own memories (not Hashem’s awareness of us) traveling and transcending the limitations of this world, such that we can approach The Good One, whom we understand to exist beyond time and space. 

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