The People of Halachah

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by R. Gidon Rothstein

Part Two of Peri Megadim’s Petihah Kollelet: The People of Halachah

I take piece by piece projects partially in the belief they bring us to a larger whole, we see a greater overall structure. In the case at hand, I think Peri Megadim’s list of those with halachic differences, each piece of which taught us much, combine to show he was looking to a larger question: what “member” means for the community of halachah.

A List of Halachically Different People

Peri Megadim spent the second part of his Petihah Kollelet on ten types of people whose halachic differences affect their participation in mitzvot and the Jewish community. After we have seen them all, we can notice choices he made, pointing us in the direction of a theory of communal membership.

Although he never says or hints at it, I suspect he settled on the number ten for other reasons (such as, perhaps, it being the number of Jews to make a representative quorum, a minyan). I think so because the list does not seem to have a clear set of rules for inclusion.

An onen, for example, is indeed exempt from mitzvot as long as s/he is involved with burying a close relative, but is that an halachic type? It’s a stage, especially if the reason for aninut is that the person is involved in another mitzvah. Peri Megadim did not discuss ha-osek be-mitzvah patur min ha-mitzvah, one involved in one mitzvah is exempt from others in general.

True, the onen’s exemption is broader, so we might think Peri Megadim sought people exempt from all or many mitzvot. That would founder somewhat on the tumtum and especially androginus, whose exemptions are no greater than those of women, and are quite possibly narrower (the androginus might only differ from a man in the ability to help others fulfill obligations, or in whether the androginus is obligated in mitzvot requiring certainty).

More glaringly, the iver, unsighted, is exempt from mitzvot only according to a Talmudic opinion accepted only by Rabbenu Yeruham, an authority whose views we do not usually see as central enough for such a place of pride. The iver might also not be able to recite the berachah of borei me-orei ha-esh at the conclusion of Shabbat, but that certainly does not seem enough of an issue to make this list.

Finally, he does not here discuss the differences between types of otherwise ordinary male Jews, Kohanim, Levi’im, and Yisra’elim, each of whom also have areas of halachah that do or do not apply to them.

If the idea he was looking for ten does not appeal, I think we are left saying he took for granted that a Yisrael Jew was the baseline, Kohanim and Levi’im had more, not his concern here, and then looked for all others who, for whatever reason, had some significant exemption from Mitzvot. From the list he generated, we see there were many ways to come to such an exemption.

Roads to Difference

Peri Megadim listed the ten in order of level of participation in halachah, where I think we can suggest another way to group the members of the list, according to what caused the exemption.

To recall, he discussed: a heresh (deaf mute), shoteh (not in his/her right mind), katan (minor), women, partially converted servants (and those only half in servitude), tumtum, androginus, onen, pesulei kahal (people of lineage that prevents them from marrying ordinary Jews, with Mordechai thinking such people were excluded from more than that), and the unsighted.

Intellectual or Experiential Differences

Some of these issues are categorized as a matter of lack of da’at, usually thought of as intellectual competenceThe heresh, shoteh, and katan have insufficient da’at to be included in the world of mitzvot—the shoteh has none, heresh has “weak”, and the katan’s da’at is in formation.  (The iver might be a matter of da’at as well, for those who exempt him/her fully).

Instead of mental competence, I suggested their lack of da’at stemmed from their different experience of the world. That would explain why a shoteh in even one area of life might be thought of as a shoteh broadly; why people lacking either hearing or speech have the option to prove their da’at where the full heresh does not (if we can check a mute person to be sure his/her da’at is intact, is there really no way to check a heresh?); why minors are thought to become obligated in mitzvot as soon as ready for the actions involved in those mitzvot, without any discussion of their intellectual ability, as opposed, for example, to business transactions, where comprehension is crucial.

Peri Megadim clearly did not agree, because he spoke of not wanting to make distinctions within the categories.

Still, I think my idea of da’at as similarity of experience also gives a better way to understand why a suma (iver in Hebrew, unsighted) is more clearly part of the world of mitzvot, because s/he can communicate with less barrier than one lacking speech, hearing, or both. While s/he cannot see, s/he can communicate to us his/her similarity of experience.

Halachic Status Problems

Others on Peri Megadim’s list were left out of certain obligations as a matter of halachic status, with no implications for their da’at. Women and servants are a prime example, their exemption from mitzvot with a time component not clearly connected to anything about them as people, only as halachic actors.

After the Torah told us partially converted servants had a similar standing to women, our then finding places where they were obligated although women were not clearly points to this being an halachic status issue, not an assessment of capabilities. The whole idea of a hatzi eved, half-owned servant, who has a “side” fully free, a “side” fully owned, clearly looks at status issues, with no implication for our view of the person behind the status.

Pesulei kahal, those banned from ordinary marriage because of their lineage, also have that status applied to them independent of any of their personal qualities. The onen, too, is a matter of halachic status, created by his/her obligation towards the deceased, either as a matter of being involved in a mitzvah, or to honor the relative. Either way, all that has changed about this person is an external halachic situation.

Last, we have those whose physical particularities lead to halachic concerns. The tumtum and androginus, people of uncertain gender, lead halachic questions about how to handle the uncertainty. Remarkably, all sorts of other physical challenges do not make the list, do not affect a Jew’s participation in the world of mitzvot.

The Payoff: Levels of Membership in the Jewish People

He doesn’t say it outright, and I only noticed it by repeated review, but I think Peri Megadim was trying to figure out what it means to be a part of the Jewish people. It explains why he kept coming back to arevut, whether a Jew is enough of a member of the community to perform mitzvot on behalf of others after already having fulfilled an obligation. It also explains why he did not get into the gradations of Kohen, Levi, Yisra’el, because all three are known members of the kahal, the general community.

Specifics of the situations of many members of our list, lead to one or many areas where his/her participation in the larger community is limited. Peri Megadim, I think, is signaling a gap between Jewishness (and/or relationship with Gd), and role in the community.

To me, the pesulei kahal provide a perfect example. An Ammonite man—when we knew who they were—was welcome to convert, would be a full Jew in almost all ways, but could not marry into the kahal, the ordinary community. In most senses, he is as much Jewish as any of us; when he looks for brides, though, his Ammonite-ness comes to the fore.

We are not in or out, I think Peri Megadim shows us, we are both, part of the nation and community in some ways, not part in others. Our job is to do our best to serve Gd well, within the parameters set for us.

About Gidon Rothstein

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