Taking a slight break

I am taking a break of a week of parshablog, since I am currently swamped in all sorts of work.
I am working on something very interesting regarding the obligation of married women to cover their hair, (Ketubot 72a-b) which hopefully will be finished soon. Then, perhaps I will post it (or a link to it) here.

The need for 600,00 to make an area a reshut harabbim

Work in progress:
The following is largely based on a shiur Rav Schachter gave. You can see my notes here.

While a tzurat hapesach can form a valid mechitza and thus render an area reshut hayachid, the passing of the public into the area can cancel those mechitzot. This is based on a gemara regarding making pasim for wells, where the public passage cancelling mechitzot is a matter of dispute. However, we determine that all agree to the principle of public passage cancelling mechitzot, but only in non-strong mechitzot. What consititutes a sturdy wall is the matter of the dispute.

Tos' makes an "innocent comment" (see first shiur) that he thinks that public passage cancelling mechitzot is only an issue if the wall is needed Biblically. By a mavoi open on one side, since Biblically only three walls are needed, the fourth wall does not help Biblically, for it is already a reshut hayachid. In such a case, even by a non-strong mechitza, public passage would not cancel its status.

This innocent comment was extended to say that any time the status is only Rabbinic and not Biblical in nature, we need not worry about public passage canceling a flimsy wall. So, while Tos' spoke only of a fourth wall, it was extending to every karmelit.

This was very useful in Europe, where the Jews could not restrict traffic, but they could set up these flimsy walls - via tzurat hapesach. (Assuming tzurat hapesach is a flimsy wall. The case in the gemara was pasim. If not, we would not have to worry even in a Biblically prohibited reshut harabbim.) If they could declare an area a karmelit, and thus only Rabbinic in nature in terms of its prohibition of carrying or transferring, then the public passage by gentiles, which the Jews could not prevent, would pose no problem.

As a result, the parameters of what a karmelit is and a reshut harabbim is is vitally important to our ability to make "eruv"s back then, and nowadays as well.

One such important issue is the idea presented by Rashi and Tosafot that an area is not a reshut harabbim (but is rather a karmelit) unless it has 600,000 people in it or passing through it. On the basis of this, towns of Jews all over Europe declared that their towns did not possess 600,000 residents, and was therefore a karmelit, and based on the extension of Tos' innocent comment, they could make eruvim for their towns and not worry about "asi rabbim umevatlei mechitzta," the public passage destroying the walls. This was not a universally accepted ruling.

Let us now turn to examine the basis of the claim that 600,000 is necessary to make a reshut harabbim.

This is based on a gemara in Shabbat 6a-6b.

On 6a, the gemara cites a brayta:
"The rabbis taught: There are four kinds of premises as regards the Sabbath--viz.: private ground, public ground, unclaimed ground, and ground that is under no jurisdiction. What is private ground? A ditch or hedge that is ten spans deep or high and four spans wide--such are absolutely private grounds. What is public ground? A country road or a wide street, or lanes open at both ends--such are absolutely public grounds."

On 6b, Abaye contrasts this brayta with another one, which has an additional reshut harabbim - a desert - listed.

"Why does not the Boraitha count the desert also, for have we not learned in a Boraitha: Public ground is constituted by public roads, wide streets, alleys that are open at both ends, and the desert? Said Abayi: It presents no difficulty. There when Israel dwelt in the desert; here, in the present time." {J: some editing of the translation was in order to make it more literal and not grant a specific interpretation.}

Tosafot (6b) comments, "This implies somewhat that it is not a reshut harabbim unless 600,000 are found there as in the desert {J: when the Jews were in the desert}.

It seems fairly clear that Tos connects this statement of Abaye with another oft-occuring statement in the gemara that restricts reshut harabbim to domains which are similar to the encampments in the desert. Thus, for example, if the area has a roof, it lacks the unroofed property of the Jewish encampments. And just as lack of a roof is a necessity both in a desert and within all other possible reshut harabbim, so too 600,000 is a necessity in all forms of reshut harabbim - all based on the necessity of being like the encampments of the Jews in the desert.

To be continued in this post...

Parshat Nitzavim

Parshat Nitzavim beings with a fun to analyze pasuk:
Devarim 29:9
אַתֶּם נִצָּבִים הַיּוֹם כֻּלְּכֶם, לִפְנֵי ה אֱלֹקֵיכֶם: רָאשֵׁיכֶם שִׁבְטֵיכֶם, זִקְנֵיכֶם וְשֹׁטְרֵיכֶם, כֹּל, אִישׁ יִשְׂרָאֵל.

"Ye are standing this day all of you before the LORD your God: your heads, your tribes, your elders, and your officers, even all the men of Israel,"

which continues:
טַפְּכֶם נְשֵׁיכֶם--וְגֵרְךָ, אֲשֶׁר בְּקֶרֶב מַחֲנֶיךָ: מֵחֹטֵב עֵצֶיךָ, עַד שֹׁאֵב מֵימֶיךָ.
"your little ones, your wives, and thy stranger that is in the midst of thy camp, from the hewer of thy wood unto the drawer of thy water;"

The difficulty is in the phrase רָאשֵׁיכֶם שִׁבְטֵיכֶם. Within the context, it looks like it is listing the different classes of people who are standing there, starting with the heads, going to the regular people, and then the children, women, and strangers, unto the servants. However, שִׁבְטֵיכֶם means your tribes, which is a collection, each one 1/12th of the Jews, as opposed to טַפְּכֶם in which each individual is a single child.

One sees the bet of שִׁבְטֵיכֶם and wonders idly if, since bet, vav, mem, and peh form the labial group of Hebrew consonants (the dictionary I linked to leaves out peh), one could just switch the bet for a peh and get shoftim, judges. This would then match shotrim later in the pasuk, and rashechem would match zikneichem. (Midrashic rules do allow for switching within a group, like among gutterals.)

Rashi suggests what seems the most likely, that רָאשֵׁיכֶם שִׁבְטֵיכֶם means רָאשֵׁיכֶם to שִׁבְטֵיכֶם. That is, the word "to" is implicit. I would suggest a slight variant, that this is some archaic Biblical form of רָאשֵׁי שִׁבְטֵיכֶם, in which the כֶם ending gets added to both words in the smichut. Ramban does not say this but does immediately paraphrase רָאשֵׁי שִׁבְטֵיכֶם, within an attributed view.

Ramban himself thinks that שִׁבְטֵיכֶם is a general word, and that the pasuk first gives the klal and then the prat. First, the rashim and shevatim, and then explains that the rashim are the zekenim and shotrim, and then that the shevatim are all else who are mentioned.

Sforno has the novel suggestion that רָאשֵׁיכֶם = שִׁבְטֵיכֶם; that is, that the heads are those who have the shevet, staff, of ruling.

Finally, Targum Pseudo-Yonatan suggests that רָאשֵׁיכֶם are the heads of Sanhedrin, and שִׁבְטֵיכֶם has an implicit "amarkelei," "officers of," which also involves pasting two words - Sanhedrin and amarkelei in two different positions in smichut.

Another perek! And masechta!

Hadran Alach Mi SheHotziuhu! (4th perek bavli eruvin)
And...
Seliku Lah Masechet Eruvin!

Now on to reading the packet for Eruvin.
Latest shiur and classes, BTW, are posted here:

Articles and Notes from Eruvin/Horayot

I've posted up on my masorah page notes from Eruvin, notes from the first two Horayot classes, the first article for Horayot, and some comparisons of passages.

At: http://www.yucs.org/~waxman

Ki Tavo #2: Bowdlerization of Torah?

In Ki Tavo, where Moshe informs the Jews of the punishment of noncompliance with Hashem's mitzvot, we encounter the following two instances of kerei/ketiv:

Devarim 28:27:
יַכְּכָה ה בִּשְׁחִין מִצְרַיִם, ובעפלים (וּבַטְּחֹרִים), וּבַגָּרָב, וּבֶחָרֶס--אֲשֶׁר לֹא-תוּכַל, לְהֵרָפֵא.
"The LORD will smite thee with the boil of Egypt, and with the emerods, and with the scab, and with the itch, whereof thou canst not be healed."

Devarim 28:30:
אִשָּׁה תְאָרֵשׂ, וְאִישׁ אַחֵר ישגלנה (יִשְׁכָּבֶנָּה)--בַּיִת תִּבְנֶה, וְלֹא-תֵשֵׁב בּוֹ; כֶּרֶם תִּטַּע, וְלֹא תְחַלְּלֶנּוּ.
"Thou shalt betroth a wife, and another man shall lie with her; thou shalt build a house, and thou shalt not dwell therein; thou shalt plant a vineyard, and shalt not use the fruit thereof."

In both instances, the ketiv in written without nikud, and the kerei is written in parentheses with nikud.

The first example of kerei/ketiv actually occurs twice in Shmuel Aleph, twice in the 6th perek, where the Aron is taken by the Pelishtim and are punished by Hashem:

Shmuel I 6:4-5
וַיֹּאמְרוּ, מָה הָאָשָׁם אֲשֶׁר נָשִׁיב לוֹ, וַיֹּאמְרוּ מִסְפַּר סַרְנֵי פְלִשְׁתִּים, חֲמִשָּׁה עפלי (טְחֹרֵי) זָהָב וַחֲמִשָּׁה עַכְבְּרֵי זָהָב: כִּי-מַגֵּפָה אַחַת לְכֻלָּם, וּלְסַרְנֵיכֶם.
וַעֲשִׂיתֶם צַלְמֵי עפליכם (טְחֹרֵיכֶם) וְצַלְמֵי עַכְבְּרֵיכֶם, הַמַּשְׁחִיתִם אֶת-הָאָרֶץ, וּנְתַתֶּם לֵאלֹקֵי יִשְׂרָאֵל, כָּבוֹד; אוּלַי, יָקֵל אֶת-יָדוֹ מֵעֲלֵיכֶם, וּמֵעַל אֱלֹהֵיכֶם, וּמֵעַל אַרְצְכֶם.

"Then said they: 'What shall be the guilt-offering which we shall return to Him?' And they said: 'Five golden emerods, and five golden mice, according to the number of the lords of the Philistines; for one plague was on you all, and on your lords.

Wherefore ye shall make images of your emerods, and images of your mice that mar the land; and ye shall give glory unto the God of Israel; peradventure He will lighten His hand from off you, and from off your gods, and from off your land."

and once the word occurs in the same perek in the plain text - that is, both krei and ktiv, in pasuk 11:
וַיָּשִׂמוּ אֶת-אֲרוֹן ה, אֶל-הָעֲגָלָה; וְאֵת הָאַרְגַּז, וְאֵת עַכְבְּרֵי הַזָּהָב, וְאֵת, צַלְמֵי טְחֹרֵיהֶם.
"And they put the ark of the LORD upon the cart, and the coffer with the mice of gold and the images of their emerods."

In case you don't speak archaic, emerods means hemorrhoids.

I heard the following suggestion in an Intro to Bible class with Dr. Bernstein, perhaps (?? I can't recall ??) attributed to Abarbanel: When the text was composed, the words ובעפלים and ישגלנה were perfectly decent words. However, as time passed, the language changed and the archaic words became slang, and became the lewd and crude terms for the same. As such, the words were not appropriate to be read publicly in shul, nor did they capture the true original and neutral of the words. As a result, the anshei keneset hagedola, the Men of the Geat Assembly, instituted the krei to get the impart the true connotation.

This is indeed very possible. Many of the four letter words that we now consider crude were originally neutral terms of Germanic origin to describe the same things they describe today, and only with the passing of time and developing of the language did they evolve to be "dirty" words.

It is interesting, though, how טְחֹרֵיהֶם does indeed occur in the main text of Shmuel Aleph, which might suggest variant readings as an explanation rather than bowdlerization.

Also, since the issue here is punishment and the Torah is trying to convey the awfulness of the punishment, part of the attitude it may want to impart may have been best conveyed by the use of crude terms...

Another three perakim!

Hadran Alach Mavoi!
Hadran Alach Osin Pasin!
Hadran Alach BeChol MeArvin!
(1st, 2nd, 3rd perek bavli eruvin)

There is a famous analysis showing that Santa Claus is no longer with us, having burned up while trying to deliver presents. I've often speculated on Eliyahu HaNavi being able to visit all the sedarim on pesach night.

Informative is a gemara in Eruvin, daf 43a:
"These seven rulings were said on the morning of Shabbat before Rav Chisda in the city of Sura and were repeated in the afternoon of Shabbat before Rava in Pumpedisa. Who said them? Was it not Eliyahu {who could travel this distance in so short a time, which was more than the techum, and was flying and thus travelling over 10 tefachim from the ground}? Therefore derive that there are no techumin over 10 tefachim! No! Perhaps it was Yosef the demon who said it."

Thus, at least one problem - how Eliyahu could visit all of these Jewish houses if it means leaving the techum - is solved. There is also a basis for Eliyahu travelling really really fast.
:) :) :)
The continuation of the gemara is aso really interesting...check it out.

Disclaimer: Eliyahu doesn't really visit the Jewish homes on pesach night. I think this belief arose because we pour the Kos Shel Eliyahu, "Elijah's cup," immediately before getting up and opening the door to say "Shefoch Chamosecha," "Pour Out Your Wrath." It is called the Kos of Eliyahu because there is a dispute whether to pour and drink four or five cups of wine, a dispute which Eliyahu will come and resolve in Messianic times. In the meantime, out of doubt, we pour but do not drink. People see the pouring of "Eliyahu's Cup," saw we open the door, and made up that we are opening the door for Eliyahu who is coming to drink his cup.

Update: The gemara is actually proof by omission that Eliyahu does not visit every seder. After all, the gemara suggests that it was Yosef the demon who spread the message about the shev shma`ta, the seven rulings. The gemara lets this pass unchallenged as a refutation to the absolute proof that there is no techum over 10 tefachim. The gemara did not then say that Eliyahu visits homes on Passover night, which is a yom tov, and thus should be subject to techum. Thus, it seems that the amoraim/savoraim did not subscribe to the view that Eliyahu actually visits.

Parshat Ki Tavo #1: Talk of a Death Cult?

Devarim 26:12-15 discusses the vidui maaser, confession of maaser, in which a person states that he has properly distributed/disposed of his tithes:

כִּי תְכַלֶּה לַעְשֵׂר אֶת-כָּל-מַעְשַׂר תְּבוּאָתְךָ, בַּשָּׁנָה הַשְּׁלִישִׁת--שְׁנַת הַמַּעֲשֵׂר: וְנָתַתָּה לַלֵּוִי, לַגֵּר לַיָּתוֹם וְלָאַלְמָנָה, וְאָכְלוּ בִשְׁעָרֶיךָ, וְשָׂבֵעוּ
וְאָמַרְתָּ לִפְנֵי יְהוָה אֱלֹהֶיךָ בִּעַרְתִּי הַקֹּדֶשׁ מִן-הַבַּיִת, וְגַם נְתַתִּיו לַלֵּוִי וְלַגֵּר לַיָּתוֹם וְלָאַלְמָנָה, כְּכָל-מִצְוָתְךָ, אֲשֶׁר צִוִּיתָנִי: לֹא-עָבַרְתִּי מִמִּצְו‍ֹתֶיךָ, וְלֹא שָׁכָחְתִּי.
לֹא-אָכַלְתִּי בְאֹנִי מִמֶּנּוּ, וְלֹא-בִעַרְתִּי מִמֶּנּוּ בְּטָמֵא, וְלֹא-נָתַתִּי מִמֶּנּוּ, לְמֵת; שָׁמַעְתִּי, בְּקוֹל יְהוָה אֱלֹהָי--עָשִׂיתִי, כְּכֹל אֲשֶׁר צִוִּיתָנִי.
הַשְׁקִיפָה מִמְּעוֹן קָדְשְׁךָ מִן-הַשָּׁמַיִם, וּבָרֵךְ אֶת-עַמְּךָ אֶת-יִשְׂרָאֵל, וְאֵת הָאֲדָמָה, אֲשֶׁר נָתַתָּה לָנוּ--כַּאֲשֶׁר נִשְׁבַּעְתָּ לַאֲבֹתֵינוּ, אֶרֶץ זָבַת חָלָב וּדְבָשׁ.

"When thou hast made an end of tithing all the tithe of thine increase in the third year, which is the year of tithing, and hast given it unto the Levite, to the stranger, to the fatherless, and to the widow, that they may eat within thy gates, and be satisfied,

then thou shalt say before the LORD thy God: 'I have put away the hallowed things out of my house, and also have given them unto the Levite, and unto the stranger, to the fatherless, and to the widow, according to all Thy commandment which Thou hast commanded me; I have not transgressed any of Thy commandments, neither have I forgotten them.

I have not eaten thereof in my mourning, neither have I put away thereof, being unclean, nor given thereof for the dead; I have hearkened to the voice of the LORD my God, I have done according to all that Thou hast commanded me.

Look forth from Thy holy habitation, from heaven, and bless Thy people Israel, and the land which Thou hast given us, as Thou didst swear unto our fathers, a land flowing with milk and honey.'"

There is a dispute about the meaning of the words לֹא-אָכַלְתִּי בְאֹנִי מִמֶּנּוּ.

Rashi writes that it means "I did not eat it while in aninut," that is, during the period of time after a close relative dies and has not yet been buried. Rashbam writes that `on means power, and thus I did not take it in gezel, stealing, by force.

The pasuk states later, "וְלֹא-נָתַתִּי מִמֶּנּוּ, לְמֵת" which Rashi, following an opinion stated in the Sifrei, claims that it means "I did not use it's value to purchase a coffin and shrouds for a dead body." Ramban discusses it at length, and cites and dismisses the Rambam. Ibn Ezra includes the intriguing possibility that "וְלֹא-נָתַתִּי מִמֶּנּוּ, לְמֵת" means that he did not give it as an idolatrous offering, mes meaning idol, like zivchei meisim are sacrifices to gods who are not living gods.

I would offer the following suggestion: We are dealing here, in the vidui maaser, with the statement that he did not give of the maaser and neta revai to a death-cult. We know of the meonen (spelled with an AYIN, so it is not equal to "lo achalti biOni," with an ALEPH), a necromancer who communicated with the dead. There may have existed, as mantic methods of inducing prophecy from the dead, rituals which might be described in this pasuk. "וְלֹא-נָתַתִּי מִמֶּנּוּ, לְמֵת" could mean that he did not give the maaser as an offering to the dead. To speak to the dead and to get them to manifest their presence on a person, he might become unholy, by becoming tamei, and then partaking of this offering. Thus, וְלֹא-בִעַרְתִּי מִמֶּנּוּ בְּטָמֵא could be eating of burning of an offering. Rashi recommends himself as more pshat-ful than Rashbam in terms of onen, even though onen has two nuns and "oni" and "on" only has one, for the topic should be death. This partaking of the korban while in this death-associated state of aninut might be a mantic method of inducing death-prophecy.

A word of warning, though. I once suggested while in shiur that ""וְלֹא-נָתַתִּי מִמֶּנּוּ, לְמֵת" meant giving it as an offering to the dead, perhaps in some form of ancestor worship, and was told by the rebbe of that shiur that I was being doresh torah shelo kihalacha.

Parshat Ki Teitzei #3: Ben Sorer UMoreh take 2: why?

Note: although this starts the same as the previous dvar torah, it is a different dvar torah.

Parshat Ki Teitzei contains the law of the Ben Sorer UMoreh, the rebellious son, who is executed for his rebellion, something which is very hard to comprehend. The psukim, Devarim 21:18-21, states:

כִּי-יִהְיֶה לְאִישׁ, בֵּן סוֹרֵר וּמוֹרֶה--אֵינֶנּוּ שֹׁמֵעַ, בְּקוֹל אָבִיו וּבְקוֹל אִמּוֹ; וְיִסְּרוּ אֹתוֹ, וְלֹא יִשְׁמַע אֲלֵיהֶם.
וְתָפְשׂוּ בוֹ, אָבִיו וְאִמּוֹ; וְהוֹצִיאוּ אֹתוֹ אֶל-זִקְנֵי עִירוֹ, וְאֶל-שַׁעַר מְקֹמוֹ.
וְאָמְרוּ אֶל-זִקְנֵי עִירוֹ, בְּנֵנוּ זֶה סוֹרֵר וּמֹרֶה--אֵינֶנּוּ שֹׁמֵעַ, בְּקֹלֵנוּ; זוֹלֵל, וְסֹבֵא.
וּרְגָמֻהוּ כָּל-אַנְשֵׁי עִירוֹ בָאֲבָנִים, וָמֵת, וּבִעַרְתָּ הָרָע, מִקִּרְבֶּךָ; וְכָל-יִשְׂרָאֵל, יִשְׁמְעוּ וְיִרָאוּ.

"If a man have a stubborn and rebellious son, that will not hearken to the voice of his father, or the voice of his mother, and though they chasten him, will not hearken unto them;

then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place;

and they shall say unto the elders of his city: 'This our son is stubborn and rebellious, he doth not hearken to our voice; he is a glutton, and a drunkard.'

And all the men of his city shall stone him with stones, that he die; so shalt thou put away the evil from the midst of thee; and all Israel shall hear, and fear."

What in the world can a son do to deserve this death penalty? He's a drunkard? A glutton? He does not listen to his parents? It is very strange, and does not fit into what we expect the Torah would say in terms of crime and punishment. This seems unduly harsh.

On a non-halachic basis, here is a suggestion. The 10 commandments say "Honor your father and mother." Kabed Et Avicha VeEt Imecha. The word honor, kabed, KBD, is the same root as "heavy" (Kaved).

Elsewhere we see a death penalty for cursing a parent.
Shmot 21:17 states, "וּמְקַלֵּל אָבִיו וְאִמּוֹ, מוֹת יוּמָת", "And he that curseth his father or his mother, shall surely be put to death."

Now, the root for curse, "KLL," is the same root as light, (Kal), as apposed to heavy. If so, it might also function as the opposite of honoring, that is, dishonoring or treating lightly. Just as dishonoring or treating lightly the word of a king is a capital offense, perhaps treating lightly the ruler of the family unit is also a capital offense, when it goes to the extreme of ignoring instruction of your parents and instead being a drunkard and glutton. This treats the parent lightly, and is the opposite of giving them honor. Perhaps we thus have a hint elsewhere of the ben sorer umoreh.

Of course, from a practical, halachic perspective, mekalel is taken to mean curse. Further, ben sorer umoreh is a more extreme case than this.

Update: I'm fairly certain that ths dvar torah and the one preceding it are based in large part, if not in their entirety, on things I heard in class in Revel with Dr. Eichler.

Parshat Ki Teitzei #2: Ben Sorer UMoreh

Attackers kill eight in Pakistan
September 3, 2003

A FATHER in northern Pakistan led seven of his friends and relatives in an attack on the home of his married daughter, killing her and seven other people in an apparent honor killing, police said today.

The suspect, identified as Khaliq Dad, attacked his daughter and her husband's family late Tuesday in Totalai village, about 250 kilometers (155 miles) north of Peshawar, the capital of Pakistan's North West Frontier Province, said Tajbar Khan, a local police officer.

The dead included four children. The victims were sleeping in a courtyard when the attackers sprayed them with bullets from assault rifles. Many poor villagers sleep outside to stay cool during Pakistan's intensely hot summers.

Khan said no arrests have been made.

Dad's slain daughter, identified as Zulfania, had allegedly married against her father's will.

Angered by the marriage, Dad reported his son-in-law to the police, charging him with kidnapping his daughter. The man, Omar Shah, was arrested and jailed in 2000, but a court acquitted him after Dad's daughter testified she married Shah willingly.

Shah was not at home at the time of Tuesday's attack.

Village elders had convened a jirga, or council, in an attempt to make peace between the two families. At the council meeting last year, Shah's father agreed to pay 40,000 rupees (US$700) to Dad and give two girls in marriage into Dad's family as a settlement, Khan said.

While the man made the payment, he was allegedly unwilling to marry his daughters into Dad's family. Dad felt insulted, Khan said, leading to the attack.

Parshat Ki Teitzei contains the law of the Ben Sorer UMoreh, the rebellious son, who is executed for his rebellion, something which is very hard to comprehend. The psukim, Devarim 21:18-21, states:

כִּי-יִהְיֶה לְאִישׁ, בֵּן סוֹרֵר וּמוֹרֶה--אֵינֶנּוּ שֹׁמֵעַ, בְּקוֹל אָבִיו וּבְקוֹל אִמּוֹ; וְיִסְּרוּ אֹתוֹ, וְלֹא יִשְׁמַע אֲלֵיהֶם.
וְתָפְשׂוּ בוֹ, אָבִיו וְאִמּוֹ; וְהוֹצִיאוּ אֹתוֹ אֶל-זִקְנֵי עִירוֹ, וְאֶל-שַׁעַר מְקֹמוֹ.
וְאָמְרוּ אֶל-זִקְנֵי עִירוֹ, בְּנֵנוּ זֶה סוֹרֵר וּמֹרֶה--אֵינֶנּוּ שֹׁמֵעַ, בְּקֹלֵנוּ; זוֹלֵל, וְסֹבֵא.
וּרְגָמֻהוּ כָּל-אַנְשֵׁי עִירוֹ בָאֲבָנִים, וָמֵת, וּבִעַרְתָּ הָרָע, מִקִּרְבֶּךָ; וְכָל-יִשְׂרָאֵל, יִשְׁמְעוּ וְיִרָאוּ.

"If a man have a stubborn and rebellious son, that will not hearken to the voice of his father, or the voice of his mother, and though they chasten him, will not hearken unto them;

then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place;

and they shall say unto the elders of his city: 'This our son is stubborn and rebellious, he doth not hearken to our voice; he is a glutton, and a drunkard.'

And all the men of his city shall stone him with stones, that he die; so shalt thou put away the evil from the midst of thee; and all Israel shall hear, and fear."

Let us not focus for now on why the rebellious son is chayav mita (Chazal give explanations) and instead take for granted that he is actually chayav mita for his conduct. An issue totally aside from all that is the role of the parents.

Before the Torah spoke, the social context is that there is a family structure and an extended family structure (bet av), and even more extended than that we have the tribe, shevet.

The big chiddush of ben sorer umoreh is that given a specific situation in which the child may be chayav mita, it is not the role of the direct parents to be the judge, jury, and executioners.

וְתָפְשׂוּ בוֹ, אָבִיו וְאִמּוֹ; וְהוֹצִיאוּ אֹתוֹ אֶל-זִקְנֵי עִירוֹ, וְאֶל-שַׁעַר מְקֹמוֹ.

They have to go to the ziknei haIr, to the gate where there is the court of judgement, and those strangers, who are appointed to mete out justice, try the case. His mother and father give testimony:

וְאָמְרוּ אֶל-זִקְנֵי עִירוֹ, בְּנֵנוּ זֶה סוֹרֵר וּמֹרֶה--אֵינֶנּוּ שֹׁמֵעַ, בְּקֹלֵנוּ; זוֹלֵל, וְסֹבֵא.

And then the people of the town, if he is indeed objectively guilty, mete out the punishment.

וּרְגָמֻהוּ כָּל-אַנְשֵׁי עִירוֹ בָאֲבָנִים, וָמֵת, וּבִעַרְתָּ הָרָע, מִקִּרְבֶּךָ; וְכָל-יִשְׂרָאֵל, יִשְׁמְעוּ וְיִרָאוּ.

This eliminates some of the subjectivity of personal insult/feelings and allows true justice to happen.

In the case cited above, the father felt personally insulted and took vengeance, outside the realm of the court. This type of "honor killing" seems to be what the Torah is trying to prevent.

Parshat Ki Teitzei #1: Eshet Yefat To`ar As Progressive Feminist Legislation

Parshat Ki Teitzei opens with the law of the Yefat To`ar, the beautiful female captive of battle who can be taken as a wife.

Devarim 21:10-14 states:

כִּי-תֵצֵא לַמִּלְחָמָה, עַל-אֹיְבֶיךָ; וּנְתָנוֹ יְהוָה אֱלֹהֶיךָ, בְּיָדֶךָ--וְשָׁבִיתָ שִׁבְיוֹ.
וְרָאִיתָ, בַּשִּׁבְיָה, אֵשֶׁת, יְפַת-תֹּאַר; וְחָשַׁקְתָּ בָהּ, וְלָקַחְתָּ לְךָ לְאִשָּׁה.
וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ.
וְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ, וְיָשְׁבָה בְּבֵיתֶךָ, וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ, יֶרַח יָמִים; וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ, וְהָיְתָה לְךָ, לְאִשָּׁה.
וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ

"When thou goest forth to battle against thine enemies, and the LORD thy God delivereth them into thy hands, and thou carriest them away captive,

and seest among the captives a woman of goodly form, and thou hast a desire unto her, and wouldest take her to thee to wife;

then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;

and she shall put the raiment of her captivity from off her, and shall remain in thy house, and bewail her father and her mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife.

And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her."

This halacha makes many uncomfortable in terms of our modern views of the rights and role of woman, and it made Chazal uncomfortable in terms of the way it allows a man to follow base instincts, which emotionally it strikes one that the Torah should forbid.

I will not cover the various approaches of Chazal to this mitzvah in this dvar Torah, but rather wish to focus on a single novel pshat interpretation of the mitzvah, and that is that the mitzvah is really a pro-woman piece of legislation that lays out the rights of the female captive.

If the Torah had not spoken at all, the natural assumption of the people would be that you could do with a captive whatever you desired. To the victor goes the spoils, and this included cattle, vessels, gold, and captives. Captives would become slaves, and if there were a beautiful captive woman, then one could take her as a wife, concubine, or perhaps slave/prostitute. I am assuming that was the status quo at the time the Torah was given in the contemporary legal/moral-ethical climate, and the Torah is coming to disabuse them of that notion and to grant the female captives certain rights.

(The assumption that female captives could be taken might be seen in Bemidbar 31:9, when the Israelites took captives from the women of Midyan:

וַיִּשְׁבּוּ בְנֵי-יִשְׂרָאֵל אֶת-נְשֵׁי מִדְיָן, וְאֶת-טַפָּם; וְאֵת כָּל-בְּהֶמְתָּם וְאֶת-כָּל-מִקְנֵהֶם וְאֶת-כָּל-חֵילָם, בָּזָזוּ.

"And the children of Israel took captive the women of Midian and their little ones; and all their cattle, and all their flocks, and all their goods, they took for a prey."

for which they are criticized by Moshe, in 31:15-16:

וַיֹּאמֶר אֲלֵיהֶם, מֹשֶׁה: הַחִיִּיתֶם, כָּל-נְקֵבָה.
הֵן הֵנָּה הָיוּ לִבְנֵי יִשְׂרָאֵל, בִּדְבַר בִּלְעָם, לִמְסָר-מַעַל בַּה, עַל-דְּבַר-פְּעוֹר; וַתְּהִי הַמַּגֵּפָה, בַּעֲדַת ה.
"And Moses said unto them: 'Have ye saved all the women alive? Behold, these caused the children of Israel, through the counsel of Balaam, to revolt so as to break faith with the LORD in the matter of Peor, and so the plague was among the congregation of the LORD."

It seems they wanted them for the same purpose as what caused the plague. This though is not a good proof that this was the natural assumption, for perhaps this event took place after the parsha of Yefat To`ar was given.)

The first step of dealing with the Yefat To`ar is:

וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ
"then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;"

You take her to your home and treat her like a human being and a citizen. She does not live with the other captives in poor housing, and is no longer in chains.

I would not translate וְגִלְּחָה, אֶת-רֹאשָׁהּ as shaving her head, for in contexts we are treating her nicely, and furthermore, in context, the next pasuk states ְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ, that she takes the rainment of captivity from off her.

There is a clear parallel to Yosef, when he was taken out of prison to be brought to Pharaoh and from there to greatness.

Bereishit 41:14:
וַיִּשְׁלַח פַּרְעֹה וַיִּקְרָא אֶת-יוֹסֵף, וַיְרִיצֻהוּ מִן-הַבּוֹר; וַיְגַלַּח וַיְחַלֵּף שִׂמְלֹתָיו, וַיָּבֹא אֶל-פַּרְעֹה.

"Then Pharaoh sent and called Joseph, and they brought him hastily out of the dungeon. And he shaved himself, and changed his raiment, and came in unto Pharaoh. "

First, they removed him from the pit, equivalent to taking the woman out of the captives quarters and into the man's house. Then, he shaved. I would say not shaved exactly, but sheared. He cut his hair and became hygenic. Similarly, the beautiful captive gets to cut her hair which surely became unkempt during captivity. Finally, he changed from his prison clother. Similarly, the female captive gets to change into fresh garments, which, being a captive she probably did not get much opportunity to do.

In addition, the female captive cuts her nails (there is a machloket whether וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ means to cut her nails or grow them long, and for my purposes, I am assuming it means to cut them.)

More than being hygenic, fresh clothes, kempt hair, a manicure, being in a normal quiet house, all give the female captive some presence of mind. She can become settled.

Next, וְיָשְׁבָה בְּבֵיתֶךָ, וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ, יֶרַח יָמִים;
"and shall remain in thy house, and bewail her father and her mother a full month;"

War, the shock of her parents' demise, and the sudden placement into captivity can be unsettling and traumatic. Here, we give her a chance to recover somewhat from the shock and horror, to mourn her parents, and to become somewhat emotionally grounded.

Then, וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ, וְהָיְתָה לְךָ, לְאִשָּׁה

Only after all this, וְאַחַר כֵּן , is she emotionally prepared for marriage, and you consummate the marriage, and she is to you a full wife, וְהָיְתָה לְךָ, לְאִשָּׁה, not a servant, and has all the rights and status of a wife.

As a result, if you later decide that you do not want to remain married to her, you divorce her like you would divorce a wife, and she goes from the marriage as a free citizen who can marry whomever she pleases:

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ

"And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her."

She goes free. She cannot be sold as a servant. Beforehand, while she was a captive, she could have been sold, and have been dealt with as a slave. I am not sure if "humbled" is the right word. The root ayin nun heh means several different things in different places, which I will not go into here. But, see by an amah ivriya, Shmot 21:10 where the word seems to occur, and earlier in that same perek, Shmot 21:8, where the root BGD seems to correspond. But perhaps it is. (more on this later...)

This by the way is against what I'm pretty certain is the standard way of reading the last pasuk, that if he decides after her shaving her hair/growing her nails/taking off her attractive captive clothing/mourning a month that he no longer finds her attractive (for that was the point - to stifle his desire) and then decides not to go through with the marriage, then she goes free.

I am claiming here that this is after the marriage to say that she is a full wife - not a concubine or slave-wife.

For comparison, let us examine the rules of amah ivriya, the Hebrew maidservant.

In parshat Mishpatim, Shmot 21:7-11:

וְכִי-יִמְכֹּר אִישׁ אֶת-בִּתּוֹ, לְאָמָה--לֹא תֵצֵא, כְּצֵאת הָעֲבָדִים.
אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ--וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.
וְאִם-לִבְנוֹ, יִיעָדֶנָּה--כְּמִשְׁפַּט הַבָּנוֹת, יַעֲשֶׂה-לָּהּ.
אִם-אַחֶרֶת, יִקַּח-לוֹ--שְׁאֵרָהּ כְּסוּתָהּ וְעֹנָתָהּ, לֹא יִגְרָע.
וְאִם-שְׁלָשׁ-אֵלֶּה--לֹא יַעֲשֶׂה, לָהּ: וְיָצְאָה חִנָּם, אֵין כָּסֶף

"And if a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do.

If she please not her master, who hath espoused her to himself, then shall he let her be redeemed; to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her.

And if he espouse her unto his son, he shall deal with her after the manner of daughters.

If he take him another wife, her food, her raiment, and her conjugal rights, shall he not diminish.

And if he do not these three unto her, then shall she go out for nothing, without money."

Here, the traditional explanation is that this is a girl under the age of 12 who is sold by her poor father to be a helper/servant in a rich man's house. The rich man is expected to either marry her himself or marry her to her son. In marriage, she has all the full rights of a wife, and these rights do not diminish even if he takes another wife. If he does not do three things - marriage to himself, or to his son, or allow her to be redeemed (in other words, relatives do not redeem her), after a specific period of time, or when she becomes an adult, she goes free without money.

However, on a level of pshat not rising to the level of practice, we can understand an amah not to be a maidservant, but as a slave-wife, with not all of the protections (but with some) granted to the beautiful captive.

וְכִי-יִמְכֹּר אִישׁ אֶת-בִּתּוֹ, לְאָמָה--לֹא תֵצֵא, כְּצֵאת הָעֲבָדִים.

"And if a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do."

A man sells his daughter as a slave-wife, an amah ivriya, then since she is married, she does not serve for a six year period like that of the man-servant mentioned earlier in the perek. The marriage is forever, except by divorce.

אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ--וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.

"If she please not her master, who hath espoused her to himself, then shall he let her be redeemed; to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her."

The first case is where the man himself marries her. He bought her for the purpose of marriage, not servitude. If he does not want to remain married to her, וְהֶפְדָּהּ, he can let her relatives redeem her. He cannot sell her to a foreign nation, לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, that is, to some stranger other than her own family. He cannot treat her as a slave, לֹא-יִמְשֹׁל , in that he can sell her, once he has married her and now spurns her, בְּבִגְדוֹ-בָהּ. This would correspond to the female captive:

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ
"And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her."

In both cases, I claim it is after marriage, and now that he spurns her and rejects her, he cannot sell her. In the case of the female captive, she simply goes free. In the case of the amah ivriya, her family redeems her.

אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ--וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.
Alternatively, he can purchase her as a slave-wife for his son. She is then entitled to be treated "kimishpat habanot," that is that he has certain obligations towards a daughter-in-law and has to treat her in a certain way.

One might say those obligations are:
אִם-אַחֶרֶת, יִקַּח-לוֹ--שְׁאֵרָהּ כְּסוּתָהּ וְעֹנָתָהּ, לֹא יִגְרָע.
Onata is not necessarily conjugal rights. There is a major dispute whether this actually refers to an allotment of a type of food. If so, even if he purchases another daughter for his son, the father needs to still give her mishpat habanot.

Otherwise, this refers to a man's own obligation to his amah-ivriyah wife, even if he takes for himself another wife.

וְאִם-שְׁלָשׁ-אֵלֶּה--לֹא יַעֲשֶׂה, לָהּ: וְיָצְאָה חִנָּם, אֵין כָּסֶף.
"And if he do not these three unto her, then shall she go out for nothing, without money."

If he fails to provide these three things due a wife, she is no longer bound in slave-marriage. She need not be redeemed by her family for money, but goes free without any payment, and can marry whomever she chooses.

Here, you can no longer say the three are marriage to himself, marriage to his son, redemption, since the (unsupported) assumption is that he originally purchases the amah ivriya for marriage and thus after purchase she is married, not a maid-servant waiting to be married or redeemed.

Returning to the subject of the female captive, we now can say that just as the amah ivriyah is dealt treacherously with when her husband want to get rid of her, and then cannot be sold, so too a female captive after marriage, not that her husband wishes to get rid of her and deal treacherously with her, cannot be sold.

(Alternatively, you can say that just as the amah ivriya cannot be sold, and we are assuming this is before marriage while still a maidservant in the owner's house, similarly the female captive cannot be sold, also while waiting for marriage in the captor's house, having shaved her hair/grown her nails etc..)

Another Perek!

Hadran Alach HaMotzei Tefillin (10th perek bavli eruvin)!

In the *first* perek, on 11b, Rav Chisda makes the statement:

"Amar Rav Chisda: tzurat hapesach sheAsaah min hatzad, lo asah velo klum.
VeAmar Rav Chisda: tzurat hapesach sheamru tzricha shetehei briah kedai lehaamid bah delet, vaafilu delet shel kashin."

"Rav Chisda said, a tzurat hapesach that was made (with the crossbeam) from the side, he has not accomplished anything. And Rav Chisda said, the tzuras hapesach that they spoke of must be strong enough to support a door, even (if only) a door made of straw."

The stama degemara, on 11a-b extends Rav Chisda's statement regarding tzurat hapesach from the side, to explain a dispute between R Yochanan and Resh Lakish about whether a specific tzurat hapesach good for kilayim was good for Shabbat as well. R Yochanan agrees with Rav Chisda and Resh Lakish argues, they posit.

The stama distinguishes between a tzurat hapesach from the side, and one placed atop the sideposts, and between one stretching accross 10 amot or less, and one across a gap of more than 10 amot. The assumption throughout is that a tzurat hapesach on top the sideposts would be more likely to be good than one placed on the side. (This assumption seems born out by the fact that Rav Chisda criticizes a tzurat hapesach from the side, which only leaves a tzurat habesach al gabo as the only other alternative).

In practice, we paskin like Rav Chisda (and R Yochanan). If you see the eruv strings atop a pole, they do not connect the string from the side of one pole to the side of another. They perch something on the the poles and stretch the wire from the top of one pole to the top of the next.

However, in yerushalmi eruvin, 1:9, we have a different statement, also connected with the question whether "peah" (= tzurat hapesach. it is woven vines) can save from a gap greater than 10 amot, and is contrasting the laws of peah by Shabbos and by kilaim. There, the gemara states,

"R Yona says, R Hoshaya asks, this peah on what was it said - on top (milemaalan) or from the side. If you say *from on top, certainly *from the side, but if you say *from the side, then *from on top no."

Thus, the gemara seems to say (against Rav Chisda) that from the side is more likely to be good than on top. So, if we are to make distinctions for the dispute between Rav Yochanan and Resh Lakish, according to this gemara we should have made from the side good and from on top bad.

We fix this problem by switching all the "from on tops" and "from the side" that I put asteriks next to above. As a result, the yerushalmi says the opposite of what it originally said. A little girsology, if you will.

However, when you have two girsaot and one is the more difficult one, it is safer to assume the more difficult one is more original, because the flow of textual change will tend to be from difficult reading to easy reading. In this case, this reading is changed based on the Vilna Gaon's girsa in Kilaim, though it is not clear whether he actually found this girsa or "fixed it" based on Rav Chisda/stama in the Bavli.

We actually have exactly the same girsa in Kilaim, that from the side is better than on top, and that is corrected by the Gra's girsa. So, we have two yerushalmis testifying to a reading against the Bavli, and both are corrected based on the Gra.

What about the Bavli's version of Kilaim? There is no Bavli on Kilaim! (So, perhaps the stama did not have this to refer to, to make the distinction.) If so, perhaps R Yochanan would not favor the tzurat hapesach on top at all. And, based on the logic of all the gemaras involved, the one he would choose would be to the exclusion of the other. If so, all of our current eruvs would be invalid, since the wire is on the top and not on the side. (On the other hand, perhaps we can hold like Resh Lakish in which case both on top and the side would be fine.)

Is this a machloket bavli/yerushalmi? Perhaps. On the other hand, on Bavli's side we clearly have rav Chisda, but the major force of R Yochanan is based on a stama degemara, whereas in the two yerushalmis we have explicit statements by Amoraim, so perhaps we should paskin like yerushalmi amoraim over bavli savoraim. (In general, we assume Bavli wins out because the chatimat habavli was later so they saw the material in the yerushalmi and if they say different it is because they decided against it. However, the savoraic layer is well past Rav Ashi who was sof horaah and seems in instances not to have seen the yerushalmi, so if we can establish that the Amoraim of the bavli agreed with the yerushalmi, perhaps we should rule like the yerushalmi/amoraim).

All this is not definitive proof, for we could always claim that the Vilna Gaon has the correct girsa. Further, this is just a first approach to the relevant sugyot. Perhaps I will have something more definitive in a few months...