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Chukim & Mishpatim: A Perspective PLEASE NOTE: Because of the timing of the end of Pesach, Acharei Mot is the Parashah this week in Israel and next week in the Diaspora By In 2007, I published a book review in Tradition. In it, I tried to put in perspective the debate in Orthodox communities about how to respond to Orthodox homosexuals. I’d like to present here an idea that didn’t make it into the book review. A few years after my article, the debate went public: two manifestos, each garnering over 200 signatures, displayed competing responses to Orthodox homosexuals, one less tolerant and one more tolerant. In any argument, it is tempting to assume the worst about the other side, tarring its adherents with nasty labels such as “homophobic” or “liberal.” But aside from the Torah obligation to judge people favorably, this is unfair. Today’s debate might very well depend on a classic machloket (argument), going back to Chazal, about whether the sexual prohibitions called arayot are considered chukim or mishpatim.

WHAT ARE THE ARAYOT – CHUKIM OR MISHPATIM?

The Chumash uses both words to describe mitzvot, and the standard interpretation is that mishpatim have understandable reasons while chukim don’t. (The Rambam argues that chukim can indeed be understood, it’s just that their reasons aren’t obvious.) However, Chazal disagree as to which mitzvot are in which category. On the one hand, a short list of mishpatim in the Gemara includes the prohibitions of theft, murder, idolatry, and arayot (Yoma 76b). On the other hand, according to the Midrash, one shouldn’t say, “I don’t want to wear sha’atnez, eat pork, or have prohibited sex (arayot).” Rather, one should say, “I do want it, but what can I do? My Father in heaven has forbidden them to me” (Sifra, Kedoshim 9:12). This Midrash equates arayot with chukim. Commentaries are ambivalent. Both Rambam and Ramban give rational explanations for arayot, and yet call them chukim. The Maggid of Slonim distinguishes among arayot, arguing that incest is a chok, while adultery is a mishpat.

WHAT DIFFERENCE DOES IT MAKE?

I used to consider the distinction between chukim and mishpatim to be purely theoretical. But the Rambam in Shemoneh Perakim says that in fact there is a difference on the human level. There’s nothing wrong with being tempted to violate a chok (as in the Sifra above). But only a bad person is tempted to violate a mishpat! Rabbi Benjamin Hecht elaborates that a chok is a technical obligation; we don’t understand it, but it’s God’s will. (Those who don’t keep kosher might be fine people. You can still be friends with them.) In contrast, a mishpat is a moral obligation. We should not violate it or even want to do so. (Those who steal or murder cannot be fine people. Stay away from them!)

APPLYING THIS TO HOMOSEXUALS

Rabbi Hecht concludes (and Rabbi Aharon Lichtenstein concurs) that how we relate to Orthodox homosexuals may well depend on whether we view the prohibition of homosexual sex as a chok or a mishpat. Sometimes we see this explicitly, as when one rabbi posits that homosexual sex is prohibited on religious grounds only, not moral grounds, and another rabbi retorts that “Any simpleton reading this chapter (Leviticus 18) must come to the conclusion that a moral statement is being made by the Torah.” According to the opinion that it’s a mishpat, those who violate it are immoral, so tolerating them might be immoral as well. According to the opinion that it’s a chok, those who violate it are moral, so tolerating them might be a moral imperative.

CAN THE LINE MOVE?

Must there be an impasse? Not necessarily. Rabbi Hecht suggests that the very existence of the category of mishpatim is a vote of confidence in people, because the Torah’s morality is giving some weight to human morality. After all, while halakhah is absolute, ethical feelings can sway with the times. He asks, “Can the dividing line between [mishpatim] and [chukkim] also change?” He gives two examples of this change. First, to us, slavery is obviously immoral; yet it wasn’t obvious for most of world history. Second, circumcision is generally accepted in today’s society as reasonable, and perhaps even medically advisable. For most of history, though, brit milah was challenged and ridiculed by non-Jews, and Jews viewed it as a chok. So too, as society changes its attitudes to homosexuality, it may be that more Orthodox Jews will reevaluate the prohibition and consider it a chok rather than a mishpat. While some will find this disturbing and others will find it comforting, I hope that all will find it thought-provoking.

What If: Alternate History and Dayenu By What if? This is a question which can spark the imagination. By imagining what might have been, we can better appreciate what is, both in general and in Judaism.

ALTERNATE UNIVERSES (FICTIONAL)

Fanfiction, the genre of stories written about favorite fictional characters, is sometimes set in an AU – alternate universe. For example, what if Harry Potter had been raised by rationalists? Sometimes the copyright owners get in on the act as well, publishing “what if” variations on Disney films, Star Wars films, and Marvel and DC superhero origin stories. For example, what if Superman’s space capsule had landed in Soviet Russia?

ALTERNATE HISTORY (GENERAL)

The “what if” question has spawned counterfactual history (a type of historiography) and alternate history (a type of historical fiction). Uchronia.net features an annotated list of 3400 novels, stories, and essays exploring the “what ifs” of history. What if the Nazis had won World War II? What if England had suppressed the American Revolution? In alternate history, everything may be reimagined. What if Ada Baron Lovelace and Mary Godwin Shelley had been born at the same time?

ALTERNATE HISTORY (JEWISH)

Israeli history is examined as well. What if Menachem Begin had become Prime Minister in 1948? What if Israel had annexed Judea, Samaria, and Gaza in 1967, granting citizenship to the Arabs? Interestingly, the spread of the Zionist dream in the early 1900s was partly due to a utopian novel, Old New Land, in which Theodor Herzl dared to ask: What if there were a Jewish state in the Land of Israel? Novelist Michael Chabon, after publishing a novel of Jewish alternative history, was asked why Jews are often fascinated by “what if” stories. He answered:

Judaism is all about history.… And yet at the same time Judaism … is very focused on the future, on the coming of the Messiah…. [That] simultaneous sense of looking backward and looking forward … lend[s] itself to the … speculative, hypothetical thinking of the counterfactual novel.

We can also answer that the rabbis themselves dabbled in alternate history:

ALTERNATE HISTORY (RABBINIC)

Chazal start several statements with “ilu” (if only) or “ilmale” (if not for). For example: Had Moshe not come first, Ezra would have been worthy of having the Torah given through him. Had Chizkiyahu sung thanks to God on defeating Sancheriv, he would have become Mashiach. Had the Jews returned en masse from Babylonia to Israel, the Second Temple would not have been destroyed. If only the Jews would properly keep just one Shabbat, Mashiach would instantly arrive! Rabbinic “what ifs” are educational. When we imagine what might have been if Chizkiyahu had thanked God, we remind ourselves not to miss our own opportunities to thank God. When we imagine Mashiach arriving because of mass Shabbat observance, we remember that the power of Shabbat is not only restorative but redemptive as well.

ALTERNATE HISTORY (HAGGADIC)

Not surprisingly, the Haggadah, which is full of educational and experiential opportunities, includes alternate histories. Near the beginning of Maggid, we proclaim, “Had God not taken us out of Egypt, then we, our children, and grandchildren would still be slaves to Pharaoh in Egypt.” In other words: What if the Exodus had never happened? This alternate history seems to say that we would have remained slaves for thousands of years! (Interestingly, famous sci-fi author Robert Silverberg wrote a short story which posits exactly that.) Later, at the end of Maggid, we list fifteen benevolent acts that God performed for us (“Kamah ma’alot tovot…”). Right before that, we present the same list in the Dayenu song: “What if God had taken us out of Egypt, but not punished the Egyptians? Dayenu – it would have been enough….” Why do we need both lists? Perhaps the answer is that the Dayenu song is filled with alternate histories of Yetziat Mitzrayim (formulated as “if onlys”). Imagine, for example, what would have happened if God had punished the Egyptians, but not attacked their gods. Dayenu – that would have been enough for us to need to thank God – but it would have been awful! Now we can really appreciate that God did both benevolent acts for us. It is by imagining inferior alternate histories – what didn’t happen – that we can be properly grateful to God for the one true, wonderful story of Yetziat Mitzrayim – what did happen. This is a great example of using alternate history for spiritual purposes. What if? This is a question which can elevate the soul.

Get Off Your High Horse

By In my MythBusting course, one of the topics I addressed was the mistaken idea that “Tzara’at was a punishment for lashon hara only!” While that certainly is an opinion in Chazal, it’s only one of twenty!

ABOVE THEIR STATION

Let’s discuss one of those other opinions: tzara’at was a punishment for gasut ha-ruach, arrogance. Rav Amnon Bazak points out that the tzaraat stories of Miriam (Numbers 12:10-11), Gechazi (II Kings 5:27), and Uziyahu (II Chronicles 26:19-20) share a common denominator:

[T]hey present a person who aspired to a higher spiritual level than the one he/she had attained: Miriam was jealous of Moshe, Gechazi presented himself as Elisha’s equal, and Uziyahu wanted to serve as a kohen. Each was punished, measure for measure, by ending up on a lower level than the one where he/she began.

Notice the equation of arrogance and too-high aspirations. Similarly, many expressions associate arrogance with feeling high up. For example: “all high and mighty,” “with his nose in the air,” “looking down his nose at you,” “talking down at you.” Where do we find this association in Torah sources?

CEDAR VS. WORM

Rashi uses arrogance to explain why the purification process for a metzora (person with tzaraat) requires cedar wood and hyssop:

Cedar wood – because tzaraat comes [as a punishment] for arrogance.

Crimson wool (shni tolaat) and hyssop – What is the remedy so that [the metzora] can be healed? He should lower himself from his haughtiness, like a worm (tolaat) and like hyssop.

In other words, the symbols of lowliness – a worm and a low-growing hyssop – are needed to counteract the symbol of arrogance, namely a cedar. The cedar tree is both tall and ramrod straight, so it represents a high-and-mighty attitude. The Gemara uses the same image when introducing a story of arrogance and repentance: “A person should always be gentle like a reed and not unyielding like a cedar.”

THE FENCED-IN TOWER

That story is fascinating in its use of height to illustrate arrogance. We’ll quote the first part:

Once R. Elazar the son of R. Shimon was coming from his teacher’s house in Migdal Gedor, riding on a donkey. He was traveling along the bank of the river with a feeling of great joy and a sense of arrogance, because he had learned a great deal of Torah.

A very ugly person happened upon him. The ugly person said: “How are you, Rebbe?”

R. Elazar did not respond. [Rather,] he said: “Empty one – how ugly this fellow is! Are all the people of your town as ugly as you?”

The ugly person responded: “I don’t know, but you should go to the craftsman who made me and tell him how ugly is the vessel that he made.”

R. Elazar knew that he had sinned. He got off the donkey, prostrated himself before the other fellow, and said: “I have pained you. Forgive me!” (Taanit 20a-b, as translated by Rav Yitzchak Blau)

The Gemara doesn’t pull any punches in describing R. Elazar’s attitude as Torah-induced arrogance. (I call it yeshivish ga’avah, the temptation to feel holier-than-thou when learning Torah.) This was reflected in his lofty position – on a donkey, even higher than usual because it was above a low riverbank. And where had he been learning? The Maharal says there’s no such place as Migdal Gedor. Rather, the Gemara invents a name – the Fenced-In Tower. In contemporary terms, that’s like saying, “I’m a graduate of Gated Community College, part of Ivory Tower University!”

WHY FALLING IS FUNNY

As we have seen, people associate arrogance with feeling high up. Why? The one time my wife and I attended the Edinburgh Fringe Festival, we attended a fascinating lecture-performance by Jos Houben, who has been acclaimed as one of contemporary theater’s greatest clowns. His theory was that standing upright is essential to our sense of dignity. When we veer from “verticality” by tripping or falling, we lose that dignity. Much of physical comedy has to do with the exaggerated portrayal of that loss (which Houben illustrated with pratfalls). In a comedy duo, the one who retains his dignity is called the straight man.

GET DOWN FROM THERE

This explains why, when R. Elazar repented, he got down from his “high horse” and lay down on the ground. To make up for his highfalutin sin, he needed to be as low as possible. Similarly, to make up for feeling like a cedar, a metzora needed to feel like a worm. Tzaraat no longer exists, but avoiding arrogance requires constant vigilance.

Tumah: How is Birth Like Death?

By While the Torah presents extensive rules of tumah (impurity), it gives no reasons for them. This should not stop us from speculating, though. One theory relates tumah to death, decay, and the loss of life.  However, the Torah speaks about tumah for a woman who gives birth. Isn’t birth the exact opposite of death?

BIRTH IS LIKE DEATH

Several contemporary authors present solutions to this problem. I’d like to share four of them with you. First, Rabbi Shlomo Riskin points to the historic danger of childbirth:

[T]he mother’s impurity comes from the fact that every woman who gives birth has a serious brush with death. During labor, the suffering may become so intense that the mother actually believes she is about to die. If something does go medically wrong, any doctor will testify that all of nature converges to save the child even at the expense of the mother. It wasn’t all that long ago that the greatest cause of death among women was childbirth. In fact, a woman who gives birth is required to recite birkat ha-gomel (the blessing of thanksgiving) … the same blessing said after [a] successful encounter with death.

Second, Rabbanit Sharon Rimon asserts that birth involves the “death” of the placenta:

[A]t the start of the embryo’s development, some of the embryonic cells become the placenta, which takes root in the womb and nourishes the fetus during the pregnancy. At birth, the infant – emerging into new life – parts from the placenta. The placenta … leaves the body, and in a certain sense one may say that it is dead … and this is the source of the birthing mother’s impurity.

Third, Rabbi Asher Brander argues that a successful birth is also a type of loss:

A mother who gives birth has “lost” her child in the sense that the singular intimate closeness that she experienced as her child was safely ensconced in-utero is now over. Her child has left her world for the world. This may serve as a cogent psychological explanation for the phenomenon of postpartum depression.

Fourth, Rabbi Yehuda Herzl Henkin suggests that tumah is related to the wheel of life:

To be sure, tum’ah is often connected with death and decay, and as such can be seen as antithetical to the idea of haShem, the living G-d. . . . [N]ot only death and decay are opposed to the idea of G-d, but birth as well. HaShem does not die, but neither is He born. The flux of human life, birth and death together, is antithetical to G-d’s immutable and eternal nature. Tumah represents the waxing as well as the waning of life and has no place in the Sanctuary, the abode of the Eternal.

This last solution fits with Angus Tuck’s impassioned argument against immortality in Tuck Everlasting:

Everything’s a wheel . . . [and] dying’s part of the wheel, right there next to being born. . . . Being part of the whole thing, that’s the blessing. . . . [Y]ou can’t call it living, what we [immortals] got. We just are, we just be, like rocks beside the road.

So tumah reminds us that we are human, not divine. It is God Who is unchanging, like a rock. God can be described as “alive,” but that is not life as we know it at all.

BIRTH IS NOT LIKE DEATH

Nevertheless, Rabbanit Rimon (citing Rabbi Elchanan Samet) adds that there is a key difference between the tumah associated with birth and the other types of tumah:

All of the others are caused by a pathological state, while the impurity of this woman is brought about in a positive and desirable way, through the creation of new life. . . . It is perhaps for this reason that the Torah chooses to address the woman after childbirth first, before the other categories of impurity.

In other words, although there are some similarities between birth and death, ultimately birth is different, a gift from God. We can illustrate this with a beautiful story:

Just after Rebbetzin Leah Schwadron had given birth to one of her children, her husband Rabbi Sholom, the Maggid of Jerusalem, asked her, “How do you feel?” She answered, “The Sages, of blessed memory, say that the key of childbirth is not given into the hand of flesh and blood; it is in the hand of the Holy One, blessed be He, alone (Taanit 2a). I feel as if I’m in the hand of God.”

Silence Says So Much

By When Moshe tried to comfort Aharon after the death of his sons Nadav and Avihu (Leviticus 10:3), Aharon was silent (va-yidom). What was the nature of this silence?

THE SILENCE OF AHARON

Rabbi Dr. Joseph Ozarowski suggests that the use of “dom” for silence instead of the usual “sh’tikah” indicates that Aharon’s was not a passive, quiescent silence but rather a questioning, searching silence. Rabbi Menachem Hacohen, as cited by his son Professor Aviad Hacohen (Hebrew), thinks that Aharon’s silence solved a conflict:

Instead of wrapping himself in silence, shouldn’t the angelic Aharon have accepted the judgment by proclaiming loudly, “Blessed is the True Judge”? And yet, standing at the tragedy, he was confronted by a terrible dilemma. On the one hand, he felt obligated to bless God for the bad just as for the good. On the other hand, the terrible tragedy he was suffering filled his heart with sorrow. Because Aharon was a person of truth, he could not accept the judgment wholeheartedly while his sons were lying in front of him, charred and dead. Because Aharon was a person of faith, he could not bring himself to defy God either. Therefore, he was silent. “He was rewarded for his silence” (Rashi) – for being a person of faith whose heart and mouth were consistent.

In other words, because Aharon had mixed feelings about what to say, he took the third option and said nothing. A sign of dialectical tension, this was a silence of transcendence.  

THE SILENCE OF THE SIREN

Silence expressing the inability to understand a tragedy has a national application. Rabbi Dr. Yehuda Brandes writes (Hebrew):

In the days between Yom HaShoah and Yom HaZikaron, we need to learn from Aharon’s way, the way of silence. Faced with the enormous evil and the great suffering and loss, we have nothing to say, but can only be silent. The Holocaust survivors at first were silent and didn’t tell what happened. With the passing of years and generations, the silence eased up and people began to tell. But we still cannot explain and justify, comfort and be comforted. Better to be silent.

The State of Israel commemorates these two days with a siren, during which we stand silently. Asked about a Jewish precedent for a moment of silence to express sorrow, Rabbi Ovadia Hedaya points to Berakhot 6b:

The reward for [visiting] a house of mourning is for the silence.

Rabbi Hedaya explains that this silence involves sharing in the mourning. When Iyov’s friends sat with him for a week in silence (Job 2:13), it was because they had nothing comforting to say. So too, having a moment (or more) of silence conveys that we have nothing comforting to say. This silence is appropriate to commemorate Yom HaShoah and Yom HaZikaron.  

THE SILENCE OF A SHIVA

The silence mentioned by Rabbi Hedaya is not just a good idea, it’s the law: “Shiva visitors are not permitted to start speaking until the mourner starts to speak.” Rabbi Moshe Rosenberg explains the importance of shiva silence:

First, it emphasizes that the primary goal of the visit is not what you say to the mourner, but the mere fact that you are there. You are there to express empathy, not “to explain the ways of God to man.” Even if the mourner never says a word to you, and the two of you sit in silence for the duration of the visit, you have fulfilled the mitzvah of consoling the mourner… By his or her silence, the mourner indicates that this is not the time for words, but simply for validation and solidarity.

Second, waiting for the mourner to speak reminds you that your job is to follow, not to lead… Once you see where the mourner is comfortable going, you may, if you are close enough and empathetic enough, be able to steer the conversation to topics that would be therapeutic… You must operate within the mourner’s world … and not try to impose your own world upon another.

Amanda Bradley offers practical advice:

If I could write up one golden rule for shiva-visiting, it would be this: Don’t be scared of silence. I don’t have any … statistics, but I suspect that 99% of all hurtful comments [are] made by someone trying to fill a lull. If the mourners are not talking to you, it’s OK to sit quietly until they do. They may be struggling to hold back tears, or remembering a particular memory, or just feeling tired of conversation.

Let’s not be scared of silence. When appropriate, silence speaks louder than words.