105) EMENDING THE TEXT OF THE TORAH:

The tomb of Ezra the Scribe in the Shiite district of Amarah in Iraq

INTRODUCTION:

Many would be surprised to discover that there are a number of Tikunei Sofrim or Emendations of the Scribes - instances where (at some stage in history) the actual text of the Torah has intentionally been altered or emended. These emendations have been acknowledged and documented by some of our leading Sages who have given their versions as to the reasons for them.

In this essay, we are going to try to ascertain exactly who these Scribes were and why they deemed it necessary to make their changes.

HOW MANY EMENDATIONS WERE THERE?

It is generally accepted that there are eighteen places in Tanach where changes were made,[1] but not everybody agrees as to the exact number.

Rashi comments on eight instances of Tikun Sofrim.

Barnes quotes Schechter;

“...the number ‘eighteen’ appeared in Shemot Rabbah...Elsewhere these alterations are reckoned as ‘thirteen’ or ‘fifteen’... ‘eighteen’ would seem to be a merely symbolic number.”[2]

Some say the number may even be as high as thirty.[3]

EXAMPLES:

A common thread that appears to run throughout many of these ‘corrections’ is that they were made to preserve the honour of G-d. The argument is that the ‘original version’ may not have been as respectful to G-d as it should have been.

For example, in Genesis (regarding the story of the three visitors to Abraham) the text originally referred to G-d who remained waiting for Abraham. This was changed to read Abraham remained waiting. It was considered disrespectful to say that G-d waited for Abraham to finish with his guests. Rashi in his commentary on the story records this as an example of Tikun Sofrim.

Another example is Navot who is accused of cursing G-d. The text uses the word blessed instead of cursed.[4]

A third example is where Moshe says to G-d; ‘I will not see my evil’[5]. This refers to Moshe not wanting to have to witness G-d’s punishment of the people and preferring to die instead. Again Rashi explains that the text is not technically accurate and should rather have read; ‘I will not see Your (referring to G-d’s) evil’. However because of Tikun Sofrim the text was amended out of respect to G-d.[6]

In Iyov, Rashi clearly acknowledges the phenomenon of text changing when states; “This is one of the places where the Scribes emended the language of the text.”[7]

Thus we find that Rashi makes numerous references to textual emendations.

WHO WERE THESE SOFERIM?

VIEWS OF RASHI, MIDRASH TANCHUMA AND THE ARUCH:

Rashi, (and his contemporary Rabbeinu Natan author of) the Aruch, and the Midrash Tanchuma[8] maintain that the Sofrim who made these changes were the Scribes during the times of Ezra and the Men of the Great Assembly.[9] Ezra’s power and authority must not be underestimated. One must remember that the Talmud records; “Had the Torah not been given to Moshe it would have been given to Ezra.”[10] 

Furthermore, Ezra and his Sanhedrin had the authority to determine which books of the Tanach were canonized and which were to be left out. If he could do that, he certainly could have made minor textual emendations too. He also presented the people with the second Master Copy of the Torah text after Moshe’s Master Copy had been hidden away during the persecution towards the end of the First temple and never found again (see here).

VIEWS OF MIZRACHI, RASHBA, R. YOSEF ALBO AND IBN EZRA:

On the other hand, the commentator Eliyahu Mizrachi, who quotes both Rashba and R. Yosef Albo, has a very different take. They maintain that the latter Scribes never emended anything at all. The term Tikun Sofrim is in their view very misleading. Instead of referring to latter Scribes, the term refers directly to the original authors of the Biblical books including Moshe and the Prophets. They were the intended Scribes or Sofrim. It was they who (out of respect) labeled the texts in their original form and the texts remained unchanged since then.

Rashba expressed his great opposition to Tikun Sofrim in a responsum where he mentions a Christian theologian (probably Raymond Martini) who claimed that the Jews had fabricated parts of the Bible. The theologian based his claim on his knowledge of the notion of Tikun Sofrim which existed in rabbinic literature. Rashba emphatically denounced the way Tikun Sofrim was generally understood as an emendation of the latter-day Scribes, and claimed instead that the original authors were the Scribes who made the changes.

Ibn Ezra similarly does not believe in the Tikun Sofrim concept. In his commentary on Tanach he writes; “We have no need for Tikun Sofrim....and...those who speak about it know something I don’t know.”[11]

According to this view the texts were never emended but remain original. Although they acknowledge that the wording may still have been ‘changed’ by the original authors, the texts remained untouched thereafter.

Technically, according to this view, the correct term should not be Tikun Sofrim, but rather Kinah haKatuv, which implies an original and intended euphemistic metaphor as opposed to an emendation. This term was in fact used by the Halachik Medrashim of the Sifrei and Mechilta.

Here is a summation of this Tikun Sofrim concept in beautiful scholarly English by W. Emery Barnes in 1900, which ties in with these views: 

“The student of the Old Testament is so much accustomed to the story of the scrupulous care with which the Scribes guarded the Sacred Text, counting even its letters, that it comes as a shock to him to be told that, according to Jewish tradition, he has before him in eighteen places of his Hebrew Bible not the original text, but a text altered by the Scribes!

In these eighteen passages...the original meaning was altogether displaced from the MSS (manuscript), as being un-becoming (or, indeed, in some cases, almost blasphemous), and a Scribe’s emendation took its place, the memory of the original reading being preserved in tradition only...

...Yet the evidence alleged for the theory is very thin. The early evidence is ambiguous, while what is unambiguous is too late to be of any real value. ” [12]

          

THE ISSUE AT STAKE:

However, if one follows the view of those like Rashi who understand Tikun Sofrim as a real latter day change in the text, it raises an interesting theological question:

It’s all very well being respectful to G-d but do we have the right to emend or 'improve'  a G-d given text - and once we start changing even the smallest iota are we not placing ourselves on a very slippery slope?

Is this not at variance with the eighth Principle of Rambam:

"We believe that the entire Torah in our possession today was given by the G-d through Moshe Rabbeinu...”[13]  

       

RECONCILING THE RAMBAM:

Although, as mentioned, Rambam’s eighth Principle appears to present difficulties for the Tikun Sofrim concept, there are ways to reconcile it.

Firstly (as we saw with the views of Rashba and those who held like him) one could interpret Tikun Sofrim more along the lines of Kinah haKatuv where the ‘emendations’ were originally made by Moshe and the Prophets instead of latter day scholars.

Secondly one could adopt a surprisingly open interpretation as offered by R. Yaakov Weinberg[14]: 

“Rambam knew very well that those variations existed when he defined his Principles. The words...‘the entire Torah in our possession today’ must not be taken literally, implying that all the letters of our present Torah are the exact letters given to Moshe Rabbeinu. Rather it should be understood in a general sense that the Torah we learn and live by is for all intent and purpose the same Torah that was given to Moshe Rabbeinu.”

In a similar sense, Rav Hai Gaon was not afraid to posit that the Torah text may have changed over time. He based his view on the fact that the Talmud in many places, particularly in Kiddushin, has different versions of Torah text compared to the text we have today. But he has no issues with that because as long as we follow the Mesorah (tradition) and keep to Halacha, the Torah effectively remains the same because we do the best we can under the historic circumstances. (See here)

THE KARAITES:

It is interesting to note that the Karaites were probably even more opposed to any notion of textual emendation than were some of the Rabbinites. They were strict guardians of the literal and original versions of the Torah text. Yaakob Al-Kirksani, Karaite scholar of the 900’s mentions that one of the key points of contention between Karaites and Rabbinites was this very concept of Tikun Soferim, something they rejected in its entirety.

This just shows how widespread the Tikun Sofrim idea must have become within rabbinical circles at that time. It is also significant because the Tikun Sofrim theory is strikingly absent from both the Talmud Bavli and Yerushalmi!

As an aside it would be fascinating to find out why that was so, and why the issue only became active in post-Talmudic times (after the 500’s).

CENSORSHIP?

It is interesting to see that after Rashi wrote; “Tikun Sofrim”, he elaborated; “the rabbis changed the way it was written.” Although these words do appear in the early printed versions of Mikraot Gedolot[15], they are omitted from ArtScroll’s Saperstein edition (without even a footnote explaining or even referencing their omission from a classical text).

In the ArtScroll Series Rashi al HaTorah, Rashi’s comments on Tikun Sofrim are also omitted.

In their scholarly ArtScroll Tanach Series, regarding the example we brought earlier on the question of Abraham waiting for G-d (instead of G-d waiting for Abraham)[16], there is no mention of Rashi’s view on Tikun Sofrim. It uses a clever if not manipulative translation of Tikun Sofim as “literary refinement” instead of a more accurate “emendation of the Scribes”. 

And then in a footnote it cautions;

“G-d forbid that one heretically misinterprets the term Tikun Sofrim to suggest that later Scribes dared tamper with the Holy text of the Torah and alter it in any way by replacing it with an ‘improved’ expression, regardless of the sensitivities involved!...Rather, as the commentators explain, the Torah was originally composed by G-d to convey a sense of reverence and propriety.”

This footnote effectively labelled the views of Rashi, the Aruch and the Midrash Tanchuma[17] heretical without even acknowledging an equally legitimate counter view by major Rishonim.

ANALYSIS:

It is fundamentally crucial for us to have clarity on whether or not our prime Biblical texts have been tampered with or not.

As we have seen, in Talmudic times (0-500) there were no references to Tikun Sofrim. This implies that at the time it must have been commonly accepted that the Torah texts had never been touched.

Only in post-Talmudic times (as evidenced by the Karaite opposition to Tikun Sofrim during the 900’s) did the debate begin to rage. This came to a head during the period of the Rishonim (1038-1500).

Significantly, though, many of the greatest Rishonim were divided on the issue of (albeit minor) textual tampering.

In recent times, as if the debate of the Rishonim is too controversial for modern minds, some respected contemporary scholarly works choose to obliterate any mention of the concept, never mind the debate.

Whatever one’s view on, or definition of Tikun Sofrim, it must be acknowledged that a great debate ensued within the Torah world over the issue of whether our Primary Texts were subjected to some form of emendation or not.

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[1] According to some counts the following are the eighteen instances of Tikunei Sofrim:                  Bereshit 18:22, Bamidbar 11:15, 12:12 (2X), Shmuel 3:13, 16:12, 1 Melachim 12:16, Divrei haYamim 10:16, Yirmiyahu 2:11, Yechezkel 8:17, Hosea4:7, Habakuk 1:11, Zecharia 2:12, Malachi 1:13, Tehillim 106:20, Iyov 7:20, 32:3, Eicha 3:19.

[2] W. Emery Barnes, Ancient Corrections in the Text of the Old Testament, p. 414.

[3] See Avrohom Lieberman, An Analysis of a Masoretic Phenomenon.

[4] 1 Malachim 21:12-13

[5] Bamidbar 11:15

[6] Some editions of Rashi have; ‘I will not see their evil’, referring to the people.

[7] Job 32:3 “ze echad min ha’mekomot she’tiknu soferm et lashon hakatuv.”

[8] Beshalach 16

[9] This would have been around the time of the Second Temple.

[10] Sanhedrin 21a

[11] “ein tzorech le’Tikun Sofrim....ve’haomrim kein yedu mah she’ne’elam mimeni”

[12] W. Emery Barnes, Ancient Corrections In the Text of the Old Testament, 1900.

[13] See Rambam’s Thirteen Principles of Faith.

[14] He was the late Rosh haYeshiva of Ner Yisrael. Avrohom Lieberman quotes Prof. Marc Shapiro in Fundamentals and Faith, p. 116. (Emphasis mine.)

[15] Such as the Gutnick edition.

[16] Vayeira, Bereishit 18:22

[17] In fairness there is some debate over whether the Tanchuma (which states that the emendations were done by the Men of The Great Assembly) was authentic or whether a printer was acting disingenuously (as claimed by R. Azariah de Rossi known as Meor Enayim).  Either way, Rashi and the Aruch still held that emendations were made at that time. And this is what should have been pointed out as a legitimate counter view by major Rishonim.

104) PRAYING TO ANGELS?

INTRODUCTION:

One of the distinguishing features that sets Judaism apart from other religions is its intention to be an absolutely pure form of monotheism. We do not make use of intercessory prayers, and we address G-d directly without having to go through any other person, being or entity.

But is this really the case?

In this article we are going to look at some examples where it does seem as though we do address the angels in a format that closely resembles prayer.

BIBLICAL REFERENCES TO ‘ANGELIC INTERVENTION’:

There are numerous Biblical references to what at face value appears to be acknowledgement of some forms of angelic intercession. The most well known example is probably Yaakov who asked the angel to bless him. Angels are part and parcel of much of the Biblical narrative.

TALMUDIC REFERENCES TO ‘ANGELIC INTERVENTION’:

There are many Talmudic references that seem even to encourage a person to prepare one’s prayers for some form of ‘angelic intervention’.[1]  There is a reference to angels giving strength to prayers and protecting them from prosecuting angels.[2]  Another source references Israel petitioning the angels to stand by the Gates of Prayer.[3]

This concept of ‘angelic intervention’ was later supported by a number of Rishonim (the rabbinic period spanning 1038 – 1500).[4] Rashi clearly states that one may request the angels to intercede on one’s behalf.[5]

RAMBAM:

However, one of the strongest opponents against requesting ‘angelic intervention’, was Rambam (1135-1204). He steadfastly maintained that prayer must be directed solely and exclusively to G-d alone. Anything else would be considered nothing less than heretical.[6] 

(It would be interesting to see how he reconciled the earlier Talmudic references which appeared to condone such practices.)

Besides Rambam’s theological difficulties with intercessory prayer he also believed that it is ‘impractical’ to ask angels to intercede on one’s behalf, simply because they have no freedom of choice (something exclusively within the human domain).

Ramban took a similar view to Rambam in this regard. He added that even if we merely request the angels to carry or take our prayers to Heaven - that too would be considered a form of idolatry.

THE ‘SHALOM ALEICHEM’ CONTROVERSY:

Our first example of intercessory prayer is taken from the well known Friday evening Shabbat Hymn known as Shalom Aleichem where we welcome to our homes the angels who accompany us from the Synagogue.

In the third stanza we ask; ‘Bless us with peace you Angels of Peace’. This certainly does appear as though we are asking the angels to bless us.

Some may say that we ask human beings to bless us too - so the request to the angels should not be theologically problematic either.

However many others, like R. Yaakov Emden were so opposed to reciting the verses of Shalom Aleichem that they omitted them from their liturgy (some leaving only the first stanza)[7].

THE ‘MACHNISEI RACHAMIM’ CONTROVERSY:

The second example is taken from a primary Selichot prayer known as Machnisei Rachamim. In this prayer we clearly ask the angels to take our prayers and deliver them to G-d and additionally, to plead for forgiveness on our behalf.

Again, some would say that that we are simply requesting the angels to act for us and that we are not praying directly to them. Their argument is that these expressions are used ‘poetically’ to describe how awkward, inadequate and even embarrassed the worshipper feels when approaching G-d after sinning – so the angels are metaphorically used as symbolic intermediaries.[8]  

It is for this reason, they maintain, that Machnise Rachamim is strategically positioned towards the end of the Selichot service, so as to be distinguished from the more formal prayers. 

However, the structure, wording and tone of the prayer has raised many a halachic eyebrow over the centuries, leading some to regard this petition as an actual prayer to angels and therefore extremely problematic.

The prayer is found primarily within the Ashkenazi minhag and is not part of the Sefardic liturgy.

GAONIM:

No one is sure as to who exactly composed the Machnisei Rachamim prayer, but it is believed to have been written during the 900’s.

The latter Gaonim (of the rabbinic period which spanned from 589 to 1038) generally seemed quite comfortable with this prayer.

Apparently Rav Shrira Gaon had no fundamental issues even with the act of praying to angels (although he technically said that in the specific instance of Machnisei Rachamim, the terms and expressions were considered borrowed or allegorical and not intended as a prayer to the angels).

THE DEBATE OVER  'MACHNISEI RACHAMIM' :

The highly contentious debate over whether this prayer should or shouldn’t be included in the liturgy has raged for centuries:

PACHAD YITZCHAK:

In Italy during the 1700’s, one of the earliest rabbinic encyclopaedias, Pachad Yitzchak recorded the debate and concluded, based upon earlier sources[9], that the prayer was acceptable.

This ruling was regarded as highly controversial at the time and the matter was again adjudicated by two leading Italian rabbis (one was R. Shmuel Abaob) and they reached the same conclusion as the Pachad Yitzchak that the prayer was in accordance with Torah values. 

However, the controversy was so intense that they were compelled to repeat their verdict as the ruling seemed incomprehensible to many who clearly regarded the prayer as heretical.

VILNA GAON (1720-1797):

The Vilna Gaon took a similar stance to that of Rambam, maintaining that not only is intercessory prayer forbidden under Torah law – but that practically it has no theological relevance as angels are spiritually incapable of determining the outcome of a prayer.

The Vilna Gaon and his student R. Chaim of Volozhin both removed the controversial prayer from their prayer books.[10]

MAHARAL OF PRAGUE (1520-1609):

The Maharal of Prague took an interesting position in that he decided rather to edit and emend the original text[11] to make it more theologically acceptable and only then did he include it in his liturgy.[12]

CHATAM SOFER (1762-1839):

The Chatam Sofer adopted a different approach. While he personally refused to recite Machnisei Rachamim, he did not take the extreme view that it should be removed from the liturgy. While the rest of his community recited this prayer, he made himself busy drawing out the previous prayer (nefillat apayim) so that he did not have to say Machnisei Rachamim.

He implied that it is insufficient to emend the prayers (like the Maharal did) because any reference whatsoever to angels acting on our behalf even if we do not technically pray to them, is unacceptable.

R. Akiva Eiger adopted a similar position.

TZEMACH TZEDEK (1789-1866):

The Tzemach Tzedek, the third Chabad Rebbe,  took a strong stand and wrote that one should refrain from saying any of the piyutim (hymns) that calls on angels to intercede on our behalf.[13]

R. MOSHE FEINSTEIN (1895-1986):

In recent times R. Moshe Feinstein ruled that it is perfectly permissible to recite Machnisei Rachamim and added that this is especially true if one adopts more of a ‘allegorical interpretation’.[14]

ANALYSIS:

We have looked at a seemingly simple and innocuous prayer which sparked a burning theological debate over fundamental questions of theology that has continued for more than a thousand years.

Recently, a stirring song by a popular contemporary artist has brought the words of Machnisei Rachamim to the forefront once again.  It’s interesting to see how so many people enjoy the music with no inkling of the theological controversy surrounding it.

Fascinatingly, R. Shlomo Brody[15] writes that he knows of two distinguished rabbis who had never previously recited this prayer but now felt compelled to do so as a consequence of the popularity of the tune and the song.

He asks; “Should a niggun (song) change one’s perspective on this matter?”

This just shows how powerful the social component of modern Judaism has become. We seem to be moved by acceptable trends more than intellectual integrity.

Regarding the ‘perfectly permissible’ ruling by R. Moshe Feinstein to recite the prayer, R. Brody continues rather daringly; 

“I understand this argument, but I cannot help feeling this is a horrific way to resolve a long-standing dispute related to central issues of prayer, dogma, and our relationship with G-d. I would much rather leave things at a standstill – reflecting the clash of values at stake – rather than resolve this issue in such an adhoc manner.”

Personally, I certainly do agree with the notion of keeping a core hashkafic and philosophical conflict alive because only then are we afforded an insight into the different facets of a Judaism that predate our current whitewashed and populist social religious culture.

Core debates on matters of raw Torah theology should never ever be ‘resolved’...but rather left open for future generations and different types of personalities under varying circumstances to draw upon.

Classical and elemental Torah theology - no matter how it conflicts or coincides with present trends - should never be allowed to fossilize.

..................................................

ADDITIONAL NOTES:

TEXT OF MACHNISE RACHAMIN:

מַכְנִיסֵי רַחֲמִים הַכְנִיסוּ רַחֲמֵינוּ

לִפְנֵי בַּעַל הָרַחֲמִים

מַשְׁמִיעֵי תְפִלָּה הַשְׁמִיעוּ תְפִלָּתֵנוּ

לִפְנֵי שׁוֹמֵעַ תְּפִלָּה

מַשְׁמִיעֵי צְעָקָה הַשְׁמִיעוּ צַעֲקָתֵנוּ

לִפְנֵי שׁוֹמֵעַ צְעָקָה

מַכְנִיסֵי דִּמְעָה הַכְנִיסוּ דִמְעוֹתֵינוּ

לִפְנֵי מֶלֶךְ מִתְרַצֶּה בִּדְמָעוֹת

הִשְׁתַּדְּלוּ וְהַרְבּוּ תְּחִנָּה וּבַקָּשָׁה

לִפְנֵי מֶלֶךְ אֵל רָם וְנִשָּׂא

“Angels of mercies, put our mercies

Before the Lord of mercies

Propagators of prayer, make our prayer heard

Before Hearer of prayer

Propagators of cries, make our cry heard

Before Hearer of cries

Presenters of tears, put our tears

Before the King Who gives in to those in tears

Do your best and lift up prayer

Lift up prayer and supplication

Before the King high and exalted..."

................................................

THE PRAYER OF R. YISHMAEL THE KOHEN GADOL:

Translated by Ariel Bar Tzadok.  Some have the custom to recite this prayer after Shacharit in the morning.

(Extract follows. Emphasis mine.)

May it be acceptable before you, ministering angels, holy and pure, that you do for

me, and my family a great mercy. For the sake of the holiness of Adonai, and for

the sake of His holy and pure Torah, and for the sake of your holiness, may you

stand before Adonai, G-d of Yisrael, the King who sits upon the throne of Mercy,

with requests and supplications to hear my prayer, and my supplication so as to do

what I ask and request every single day.

I ask of you ministering angels, holy and pure, separate in cleanliness, that you do

for me grace, mercy and great compassion in merit of the great holy name Akatrikel

who sits amongst the praises of Yisrael, and by the merit of the seventy-two holy

and pure Names that you take the supernal keys with the permission of the Holy

One, blessed be He, and open for me the gates of grace, mercy, and compassion....

............................................................

A POINT TO PONDER:

 According to the Zohar:

 “ ‘Angel’, is here one of the names of the Shechinah, applied to her when she is a messenger from on high and receives radiance from the supernal mirror, for then she is blessed by the Father and Mother, who say to her: Daughter, go, mind thy house, attend to thy house: go and feed them, go to the lower world where thy household wait for sustenance from thee; here is all which they require. Then she is ‘angel’...When she first appeared to Moses she was called ‘angel’... (Zohar v 187a)[16]

This perspective may change some of the debate in that it re-defines the common perception of an angel being a separate entity from G-d. On the other hand it may raise other issues concerning the Zohar's view on the oneness and unity of G-d.

.......................................................

REFERENCES:

R. Shlomo Brody, Theological Truths vs. Spiritual Vibes.

R. Dr. Shlomo Sprecher, The Controversy about Machnisei Rachamim, Yeshurun no.3 p.706-729.

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[1] Shabbat 12b, Sanhedrin 44b and Berachot 60b.  For an opposing view see Yerushalmi Berachot 9:1

[2] Sanhedrin 5.

[3] Midrash to Shir haShirim.

[4] These included R. Elazar of Worms and R. Yitzchak Bruna. (See article by R. Shlomo Brody)

[5] On Sanhedrin 8. Apparently R. Asher Weis uses this Rashi as a basis to permit the recitation of Machnisei Rachamim.

[6] See the 5^th of his 13 Principles of Faith.

[7] Surprisingly, for some reason the entire hymn is nevertheless printed in most editions of R. Emden’s Siddur. NOTE: R. S.Z. Auerbach rules that one may recite Shalom Aleichem in its entirety because it is not a request but rather a statement of ‘fact’. He likens this to the oseh shalom at the end of kaddish, where we say ve’imru amen (which refers to the angels saying amen). It is not a request or a prayer but simply a statement of ‘fact’ or even an ‘instruction’. (That’s why the last verse is in Hebrew not Aramaic, a language the angels can ‘understand’.)

[8] Examples of this are found all over the prayers which include phrases like ‘we are ashamed’ ve’lanu boshet ha’panim etc.

[9] These included Etz Shatul (a commentary on R. Yosef Albo’s Sefer haIkkarim) and Hadrat Kodesh (A commentary on the Machzor).

[10] This is recorded in Keter Rosh 93, which was written by a student of R. Chaim of Volozhin, who wrote that he spent three years with the his teacher (who in turn was a student of the Vilna Gaon) and knew that the practice of the Vilna Gaon was to omit reciting Barechuni leShalom on Friday evenings. He wrote; ve’ein levakesh me’haMalachim ki ein lahem koach meumah (we do not request from the angels because they have no inherent ability).

[11] He changed ‘hachnisu’ to read ‘yachnisu’ instead, implying that we are not making a request of the angels but rather stating a fact.

[12] Netivot Olam 1, Netiv haAvodah ch. 12

[13] Interestingly, he suggests we remove references to the angels and instead refer to the patriarchs which are mentioned in many midrashim as ‘acceptable’ intermediaries. (This seems to be in accordance to the zechut avot concept.) Nevertheless the custom in Chabad is to recite Machnisei Rachamim. (This may be because he retracted his view later in Derech Mitzvotecha, although it is believed he wrote Derech Mitzvotecha when he was just 16 years old).

[14] Igrot Moshe OC 5:43. See also R. Shlomo Zalman Auerbach, Heichalot Shlomo; Tefilah.

[15] From Yeshivat haKotel.

[16] I thank Kevin Furman for pointing this reference out to me.

103)THE POSITIVE ROLE OF SUBJECTIVITY WITHIN HALACHA:

INTRODUCTION:

It is a well established principle that Torah interpretation was handed over to the jurisdiction of human beings who would apply their minds in order to determine a halachic response for all future generations. 

It is similarly established that the Torah is ‘not in Heaven’ because its custodians are not the angels but rather humans of flesh and blood.

The question begs: With humans using their interpretative skills to determine halachic outcomes - to what extent are their deliberations influenced by their obvious and natural subjectivity.

It is the aim of this article to explore just how far the role of subjectivity can be extended with regard to determining halacha, and to observe how this process may sometimes have been abused.

HALACHIC ‘DEVELOPMENT’:

We tend to forget that many things which we take for granted as definitive halacha, were (and still are) part of an evolutionary process.

For example, originally electricity on Shabbat was treated more leniently than it is today. It was only over time that the prohibition of the use of electricity came to be regarded (although not unanimously) as falling under the category of ‘fire’.

Another example is the case of tourists visiting Israel over the festivals. For many years, visitors from the Diaspora kept two days of Yom Tov. However, nowadays due to the fact that more tourists are visiting Israel than before, this view is slowly beginning to be challenged by the popularity of a ruling of the Chacham Tzvi[1] that they need only keep one day. R. Herschel Schachter says; “In recent years this opinion of Chacham Tzvi has gained more popularity among the poskim (halachic decisors).”

So to the careful observer, halacha, far from being static, is often subjected to a process of evolutionary development.

HALACHIC EVOLUTION BASED ON APPROPRIATE SUBJECTIVITY:

This subtle development is often the result of a greater or lesser degree of subjectivity on the part of the halachic decision maker.

R. Eliezer Berkovits writes;

“Halacha is not subjective, but it has a subjective creative element to it....This is our share in the covenant...notwithstanding the risk involved in the subjective aspect of our participation.”[2]

 R. Yitzchok A. Breitowitz writes;

“...the Rabbi cannot answer...a question with his nose buried in the books, but must be sensitive to the individual characteristics of the questioner.” These characteristics will obviously differ from person to person and era to era.

R. Yitzchok Hutner...once told a disciple;

 ‘Do not rely on anything that I ever said to someone else. Each psak (ruling) is unique.’

R. Moshe Feinstein...writes[3] (in his introduction to his epic responsa work) that ‘each Rav must apply his own judgement and discretion in applying the responsa to the facts of his particular case...rather than blindly accepting his reading of them.’”[4]

In essence, the halachic process requires that the rabbi also responds to the questioner – not just the question. “

All the above shows how subjectivity plays, not just a de facto role in determining halacha, but also how critical it is in the first instance.

In other words, halacha is meant to be relatively pliable.

HALACHIC EVOLUTION BASED ON INFORMATION (OR LACK THEREOF):

Let me share two examples, separated by 800 years, of evolutionary development of halachic rulings that were predicated upon new knowledge that had previously not been available:

In 1964, the Surgeon General determined that smoking was dangerous to one’s health. 

This prompted R. Moshe Feinstein to write;

“The truth is that one should not smoke. However since there are very many who do smoke, including Gedolim, it is difficult to say that smoking is an absolute prohibition.”[5]

Years later, his son R. David Feinstein said that had his father been more aware of the medical dangers of smoking, he most certainly would have prohibited smoking outright (see here).

The second example concerns the question of whether or not it is respectful to live in an apartment that is directly above a synagogue. Many poskim ruled against this practice. However the Chida ruled leniently, permitting one to live above a synagogue based upon a ruling of Rambam. The Chida goes on to explain that those who ruled strictly had not seen the ruling of Rambam and had they seen it, they certainly would have reversed their decisions.[6]

Thus different halachic outcomes are reached depending upon the availability of relative information. In this sense, information can often drive a halachic ruling one way or the other – again emphasizing a degree of subjectivity (in terms of who has what information) inherent within the process.

INAPPROPRIATE SUBJECTIVITY?

Professor Marc Shapiro points out a number of fascinating cases where it seems as if subjectivity may have been taken too far:[7]

The Talmud records R. Papa’s statement that if one drinks wine instead of beer, he is considered as having wasted the wine (baal tashchit).[8] The Maharsha comments that R. Papa acted out of self interest because he traded in beer!

The Rashash takes issue with the Maharsha for accusing R. Papa of lying regarding a matter of halacha, for personal and selfish reasons.

There is another case where R. Yehudah haNasi declared thirteen fasts during a time of distress and wanted to introduce another one when the situation did not get any better. However, R. Ami said they should not overburden the community with the discomfort of yet another fast. R. Abba remarked that R. Ami only said what he did because he personally did not want to fast another day. Thus he too was acting out of selfish considerations.[9]

A third example is where R. Abbahu said in the name of R. Yochanan; “It is permitted for a man to teach Greek to his daughter, because such learning is an ornament to her.” Shimon bar Ba heard this and said; “It is (simply) because R. Abbahu wants to teach his daughter Greek, that he (selfishly and falsely) assigned the teaching to R. Yochanan.”[10]

Incidents like these must have been relatively common because the Ramoh writes; “Any scholar who says something out of self interest should not be listened to.”[11]

So we see that although a degree of subjectivity is inevitable within the halachic process, one has always to be cautious not to allow subjectivity to lean towards personal interest.

HOW ORDERLY IS THE HALACHIK PROCESS?

Nevertheless, the popular perception is that the halachic process is very logical, orderly, following clear and incontrovertible guidelines, and well controlled by careful unambiguous and unanimous oversight.

But as we have seen, a study of the actual historic halachic process reveals a very different story.

According to R. Moshe Sokol[12];

“...the innumerable changes in the Halacha – drastic modifications as well as moderate adjustments...are so varied – in subject matter, in geographic distribution, in historical period – that one is at a loss to delineate the precise parameters of halachic development...”[13]

Accordingly, the process of halachic development may actually be more random and organic than most people realize.

This apparent natural and multifaceted approach was already alluded to in the Talmud;

“G-d said: Do it (build the Sanctuary) in whichever way you are able - and it will be satisfactory.”[14]

So, as we mentioned in the introduction, the Torah was handed over to human beings to apply their minds as they saw fit and thereby determine halachic outcomes which would then become universal Jewish practices. And this was not an accident or a mistake - but rather part of the plan to keep halacha within the human domain.

ANALYSIS:

Thinking that this almost ‘haphazard’ process of halachic transmission is a terrible weakness, I discussed the matter with an observant psychologist friend, Kevin Furman, and he said it was anything but. He went on to explain that a society is strongest when allowed to develop freely.

He explained that “identity ‘is also formed’ by what we choose to reject. This is important as it allows particular thought objects to be revealed as a spectrum which has grades. This allows flexibility and relativity. E.g. Shabbat observance if seen as an ‘absolute truth’ would not allow saving a life.”

This means that what may appear as rivalry within a group (of people or even thought concepts), is healthy because it guarantees the group’s survival - and is even more beneficial than apparent cohesion of thought.

It’s like the old story about a Jew on a desert island who needs two shuls –  one to go to and one not to go to. The truth is that even the shul he won’t go to is just as important for the perpetuation of his faith as the one he does go to!

The openness and free flow of the halachic process is what gives it its strength and endurance.

This is why halacha is allowed to meander somewhat because it is FROM Heaven but not IN Heaven. 

And counter intuitively, it is precisely because subjectivity and individuality are tolerated and even encouraged within the halachic sphere, that the system has proved to be so effective.

..............................................................

GUEST POST

THE HALACHIK METHODOLOGY: 

By Rabbi Chaim Finkelstein.

Head of the Yeshiva L'Rabbanut and Institute for Halachik Research South Africa.

I was most excited when Rabbi Michal mentioned the subject of his next blog as being the flexibility of Halacha and its evolutionary process, not only due to the nature of the composition but also because it is something that I have dedicated my life to and founded two institutions on.

The essence of the blog is to introduce the role of subjectivity in the halachik making process and the scope of such latitude when faced with a set construct of rules and regulations, namely the Shulchan Aruch and its commentators. Contemporary writers on the genre, which include esteemed Rashei Yeshivos and Rabbonim, have clarified for the greater public the need and historical useage of subjectivity in dealing with novel and or scientific phenomena that require halachik attention. However what the writers and indeed the protagonists themselves have not clarified for themselves, let alone the public, is an aspect of the halachik decision making process that lies at the heart of "psak", of a final verdict, and it is this aspect which determines the place of human intervention in the halachik decision.

Even to the seasoned Rav the sea of Halacha can be a maelstrom of diverging opinions ad infinitum, compounded sometimes by the lack of a president from an earlier source that can guide one through these opinions. The obvious issue is how to choose an opinion or how to proceed when a novel situation, previously never dealt with, presents itself? The article quoted by Rabbi Michal from senior Rosh Yeshivas does not address this issue clearly, which may indicate that there is no clear cut guide. This would appear to be disturbing as the halachik mode is now called into question, lacking a proper method of conclusion drawing!

What is also bothering is the prevalent attitude amongst the halachik leaders in their ideology of paranoia against territory new and unchartered. What is new is best left untouched. In addition to the fact that not all new cases can realistically be left untouched, the evolution of Halacha, and indeed the oral Torah, is left stunted and atrophied, doomed to a fate similar to other dogmas stuck in time.

There is indeed a methodology in deciding which opinion emerges as the final ruling. There is also a methodology in dealing with new and uncharted territory. It is the same methodology employed by the earlier codifies, dating back to the Talmud, nay, even to Sinai. This method involves distilling principles from the halachik material studied. The way to extract the principles is involved, it involves a clear analysis of the provenance of the Halacha, viz. the sugya or Talmudic discussion which created the background and context of that Halacha. This includes asking questions, posing contradictions and being intellectually brutal in the pursuit of the underlying principle. And the coup de gras; formulating a chidush.

A chidush is a novel idea that the learner has read into the sugya which unlocks the depth and scope of the sugya. That idea can then be seen to run through the thought processes of the codifiers who followed the era of the Talmud. When the idea runs consistently a halachik principle has been successfully formed. And it is precisely this principle which determines the final ruling and whether the circumstances presented by the petitioner are worthy of the application of the principle.

This method of halachik exposition dates back to Biblical times, as the Gemara demonstrates in that halachik precepts which became obfuscated and forgotten after Moshe Rabbeinu's passing, which were restored and clarified by the expository vision of Osniel ben Knaz (Talmud Temurah 15b). Not through prophesy nor intuition, not even through combing a plethora of halachik opinions,but through "pilpul", analytical insights. And post Biblical times too, this style of analysis was the method of halachik exposition employed by the Talmud itself, as is stated that the purpose of group study is to arrive at principles (Talmud Brochos 6b).

Not to increase dissent and overly detailed case studies, but to simplify a course of study by reducing it to its basic rationale. And it didn't stop at the close of the Talmud, for we can clearly see this system of analysis in the responsa literature of the Rishonim and Achronim. Even in our times we have prime examples of the classical halachik analysis in the works of Rav Shlomo Zalman Auerbach Zt"l and Rav Moshe Feinstein Zt"l, who carefully dissected the opinions before them and drew their own conclusions. And this is the way of the future, for scholars to unabashedly question and plumb and innovate and test and apply. For opinion polls are not always an accurate alternative.

To illustrate our point let us present a contemporary halachik controversy; the need to wait after eating hard cheese before eating meat. The idea first appeared in the work entitled Issur veheter by Rabbeinu Yona (ch.40 #10) and was discussed by the Turei Zahav, one of the most significant commentaries on Shulchan Aruch ever written ( siman 89 #4 ) . The original sources discussed the sharp tasting cultured and matured cheeses of their time and the contemporary works debated whether our processed cheeses are also classified as "hard cheese" insofar as requiring a waiting period before eating meat. Here begins the controversy, for one opinion maintains that our processed cheese resembles the old style hard cheese, only that the maturation is accelerated by modern technology. While others opine that a slow maturation is key to creating the old style hard cheese. See responsa of Rabbi Evers שו״ת ושב ורפא סימן כו which includes a list of various cheeses and their maturation schedules.

The result; a debate with no borders, details with no end and a need to err on the side of caution by waiting after every cheese meal. Whereas if we were to probe the matter further and ask ourselves whether there is a need to wait after cheese at all since the Talmud only mentioned waiting after meat (Hullin 105a), and then further probe why hard cheese was ever comparable to meat, and then through understanding the principles of Talmudic preventative measures we arrive at a conclusion that the debate over contemporary cheese is over an unknown entity. Which gives us a different result; that our processed cheeses are at best a dubious rabbinic injunction (ספיקא דרבנן לקולא ) which is inclined to the side of permissibility. Without the extraneous facts and figures we arrive at a simple and workable maxim (although we could extend this issue further, more crucial factors to address lie beyond the scope of this article).

The above thesis gives us an idea of where human interpretation meets Divine origin in the halachik making process. The human intellect that has been fine honed by Talmudic studies now applies itself to Halacha and brings a degree of intellectual subjectivity into the interpretation of the halachik code, while remaining intellectually honest to keep the interpretation accurate and  undiluted. The checking process is achieved by sounding the ideas off other halachik thinkers with no agendas, what the Mishnah (Avos 6:1) calls "dibbuk chaveirim", intellectual discourse. In addition to the human checking process, the scholar must research proofs or precedents in earlier writings, which will guarantee the outcome to be unbiased and well founded.

Unfortunately the yeshiva and rabbinic communities have separated the "lamdan", the learner capable of abstruse conceptual reasoning, and the "posek" the halachik decison maker, in that the latter is more capable of sourcing numerous opinions in the pursuit of a final head count, rather than analysis of texts and reason. That is why the posek of the current generation cannot account for the final conclusions drawn. Instead the system should and must encourage the lamdan to graduate to become the posek, the one using analytical skills in determining rulings in Halacha. Another unfortunate feature is the yardstick by which we measure competence in Halacha, for we are inclined to venerate scholars with keen memories and vast book knowledge instead of scholars with refined analytical skills who can determine the appropriateness of a law and its application far better than the former. Although the last sentence is worthy of its own article, suffice to say that the wealth of Torah information available today and the search engines to access it, obviates the need for a human repository of such nature. 

I hope the above has provided more light than heat on a subject that touches me deeply and I am one dedicated to the restoration of the halachik lamdan, the healthy combination of well rounded knowledge and creative insight allowing for the continued evolvement of the oral Torah.

A fitting conclusion to this essay lies in an interpretation of a piece of Talmud proffered by Rabbi Shlomo Eidels in his work Chidushei Maharsha. The Talmud (Bavaria Metziya 59b) presents an epic tale of fierce rabbinic debate resulting in Rabbi Eliezer manipulating the forces of nature to dramatically prove his view, eventually receiving Divine confirmation by way of a Heavenly voice announcing to the rabbis that the Halacha is in accordance with Rabbi Eliezer. The dissenting rabbis proclaim that Torah is not in Heaven, but rather a human project for man to decide over, a project which no Heavenly proclamations can interfere with. And Hashem's response to such an affront: נצחוני בני נצחוני, you have defeated me my sons, you have defeated me.

The Hebrew word נצח, in addition to meaning gain victory can also mean eternal, and based on the latter meaning of the word the Maharsha translates Heaven's response of נצחוני בני נצחוני as "you have immortalized me my sons you have immortalized me!" For by defending the position that Torah is a human project the sages had made the Torah an eternal truth, one that cannot be adjusted by any concerns, human or Divine.

For me this confrontation of the sages is seminal, second to the giving of the Torah on Sinai itself, for in their confrontation with Heaven the sages asserted the human aspect of developing G-d's Torah, precisely the aspect that keeps the Torah and the learner dynamic and alive, leaving every generation and its scholars to unlock and decode the great depth therein.

Ultimately immortalizing the word of G-d. 

---

[1] Chacham Tzvi  167

[2] Essential Essays on Judaism, by Eliezer Berkovits and David Hazony, p. 97

[3] Introduction to  Volume 1, Igrot Moshe Orach Chaim 1

[4] R, Yitzchok A. Breitowitz, Synopsis of Presentation, Conference on Jewish Medical Ethics, San Francisco, CA 1996:  

“In cases, however, of genuine unresolved disagreement (some authorities conclude one way, others conclude another way), the halachic system does contain within its own structure the recognition of extenuating circumstances that may allow the consideration of particular "extralegal" factors in a case. These include, in part, concepts such as "hefsed merubah" (great financial loss), "shaat ha'dechak" (a situation of urgency), "shalom bayit" (promotion of domestic tranquility in a marriage), "darchai noam" (the ways of the Torah are ways of pleasantness, not dissention). It must be emphasized that these factors alone are rarely taken into account in determining halacha on a primary level. In the event that the objective halachic considerations are balanced in both directions, however, these subjective factors will often tip the scale.”

[5] See Igrot Moshe, Yoreh Deah vol. 2, 49

[6] See Peninei Halacha, Likkutim 1, p. 165

[7] See Seforim Blog, April 22 2010

[8] Shabbat 140b

[9] Ta’anit 14a: Rashi - ‘DeLoh amar elah lefi sheHu lo rotzeh leHitanut.’ On ‘le Azmo dorash.’

[10] Yerushalmi, Shabbat  6:1 Of course R. Abbahu denied this.

[11] Yoreh Deah 242,36: ‘Talmid Chacham sheAmer davar halacha beDavar haShayach leDideh...ein shomin leDideh.’

[12] R. Sokol is the Dean of the Lander College for Men, and a graduate of Torah Vodaas. He has a Doctorate in Philosophy and is a member of the Vaad HaRabbanim of Flatbush.

[13] Rabbinic Authority and Personal Autonomy. Ed. By Moshe Z. Sokol, p.87

[14] Berachot 17b.  See also  Ohr Yisrael: The Classic Writings of Rav Salanter and his Disciple Rav Yitzchak Blazer, ch. 30