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Class Notes - Class #15

The first set of mitzvot in this class relate to prohibitions against cursing people.  Mitzvah # 69 prohibits cursing a judge, and mitzvah #71 prohibits cursing the king or the head of the Sanhedrin.  We will later see parallel mitzvot prohibiting cursing any Jew and cursing one’s parents.

            The shorshim of these two mitzvot relate to the need for stable government.  Our author asserts that some government is necessary for the kind of settled community we are encouraged to build.  Even if that government is faulty, some government is better than anarchy.  If there is no leader to make decisions, nothing will get done.  We are therefore to refrain from cursing the political leader in public and even in private.  If we get in the habit of doing things in private, we are in more danger of doing them in public, and that could get us into trouble.  As to judges there is an additional danger of the judge being afraid of the litigants and having that fear influence the judge’s decision.  Further, if enough people express their disdain in public, a rebellion might ensue.  The author is in favor of stable government.

            There are important questions about how these mitzvot apply now.  The prohibition against cursing judges applies at every time and every place, so it would appear to apply now.  So if a recent court decision infuriated you, from a court in the U.S. or Israel, watch what you say about it.  The prohibition not to curse the sovereign ruler applies “in the land of Israel or anywhere we might be with our king or with the head of the Sanhedrin.”  It sounds like this only applies if the Jews in Israel have a sovereign head of government.  Although our author refers to a king, it seems reasonable to assume the same would apply to a head of government determined by democratic means.  Kingship was the only form of government our author knew.  So arguably this mitzvah applies to the head of the Israeli government.  There is no formal current position parallel to the head of the Sanhedrin, but it might be possible to argue by analogy to some current rabbis. 

Whatever the technical application, however, we also should consider the application of the shoresh our author articulated about the corrosive effect of over-the-top political speech.  That shoresh applies even if what we are saying is not technically a curse.  Angry argument is very much part of our current political atmosphere.  Some think such rhetoric contributed to the assassination of Prime Minister Rabin.  In the U.S., there is furious, insulting rhetoric from many sectors of the population.  The problem that concerned our author is very much alive in our political culture, and he reminds us that we should express our political opinions carefully and in temperate ways.

            The person who curses can violate these mitzvot by cursing in any language, but the curse must include reference to God using one of the direct or indirect names of God.  Punishment by malkos requires witnesses and warning.  Cursing without using God’s name is forbidden but not punishable.  Note the punishment sections, which keep track of how many sets of malkos someone gets for cursing any given person given the various set of prohibitions.

            In mitzvah #69, the author expands on the rabbinic requirement that a prohibition verse, azharah, and a punishment verse, onesh, are required for the mitzvah to be punishable with capital punishment.  Here, the author explains the reason for that rule:  we do not want people to think about the punishments as transaction costs.  Think about looking for a parking space and not finding one.  After a while, we start to consider illegal spots we would not normally park in.  If we are not in a tow-away zone, we are sometimes willing to park and take the risk of getting an expensive ticket.  We think of the cost of the potential ticket as just the price of convenient parking at that moment.  Our author says we ought not to think of mitzvot that way, imagining that we will do what we want and just take the punishment.  Rather, if a mitzvah prohibits behavior, we ought to avoid that behavior.  We cannot purchase permission to indulge in that behavior at the cost of the punishment.  (Admittedly this argument is a bit of a stretch.  Suffering capital punishment is not entirely parallel to paying a parking ticket.  Even so, the overall notion is appealing.)

            The author’s discussion of the need for azharah and onesh verses arises here because the exact words in the source verse for the prohibition of cursing judges are identical to the words prohibiting cursing God.  The verse prohibits cursing “elohim.”  That word, with its root meaning of “power,” sometimes means judges and sometimes means God.  Here, it means both.

 

Mitzvah #70 prohibits cursing God.  Our author opens by explaining his horror at this behavior.  People are distinguished from the animals because God granted us the ability to speak.  By cursing God, a person takes that precious gift and uses it to vilify God who granted that gift.  The person becomes “bereft of every goodness, … a loathsome degenerate creature.”  The Torah instructed us not to do that, and God wants to reward us for complying.  (The normal introductory material for this mitzvah/essay appears in the prior essay.)

            Halachic discussions of this mitzvah tend to be difficult.  It is hard to explain what one is prohibited from saying without saying that prohibited thing.  The horror our author demonstrates leads to the desire to use euphemisms.  For example, the rabbis often refer to this mitzvah as “birchas haShem,” blessing God, just the opposite of what it is.  There is a further problem of defining exactly what is forbidden.  To utter a prohibited curse of a judge or king, one has to call on God to curse that person.  By analogy here, what is prohibited is calling on God to curse God.  We paraphrase that as “May Yosi curse Yosi.”  That is a difficult phrase because it is hard to parse what it means.

            Our author describes the trial procedure for violating this mitzvah, and it reflects the concerns we just outlined.  For the preliminary interrogation of the witnesses, everyone use euphemisms.  Once the court established that there were two reliable witnesses, the court was cleared of spectators so no one who did not absolutely have to would hear the blasphemy.  Then the first witness gave his testimony, this time actually repeating what the defendant said.  The judges would rise and tear their clothes, like someone who witnessed a death or whose close relative had just died.  Although under normal procedure the second witness would repeat the story in all its details, in this case the second witness only affirms what the first witness said, without repeating the actual words. Then, in a ritual unique to this crime, each witness and judge lays his hands on the defendant’s head and says “Your blood in on your own head.”

            The author adds several other details about this mitzvah.  Although under normal circumstances someone who says something can immediately retract, here that first statement violates the prohibition and the person is subject to the death penalty.  To trigger the death penalty the curse must be made with God’s name, only the tetragrammaton according to most authorities.  Anyone who hears a Jew cursing God must rend his or her clothing as the judges do at the trial.  When there are no ordained judges and Jewish courts do not carry out the death penalty, violators of this mitzvah are put in herem.  If someone curses God in the name of an idol, he has uttered nonsense so there if no formal capital punishment.  But, our author says, “kanaim pogim bo,” zealots may kill him.  This is one of very few cases modeled on the behavior of Pinchas in the Torah, who acts in righteous indignation on the spur of the moment to kill a Jewish man copulating in public with a Midianite woman.  It is a very dangerous precedent.

 

Mitzvah #72 is our first encounter with agricultural taxes.  We will learn a great deal more about these taxes as we go along.  According to this mitzvah, these taxes must be separated from the total grain harvest in a particular order.  Since the amount set aside for each tax is a percentage of the remaining harvest, the order matters.  It is much easier to get the amounts right if the taxes are set aside in the prescribed order.

            Let’s summarize the taxes:

  1. When the grain harvest is in, the grain is called “tevel,” grain from which taxes must still be taken.
  2. First, the owner takes off “t’rumah gedolah.”  This goes to a cohen that the owner chooses.  By Torah law, even a tiny amount will suffice; the rabbis require 2%, according to the author.
  3. Next, the owner separates “ma’aser rishon,” the first tithe.  This is 10% of the remaining harvest, and it goes to a levi that the owner chooses.
  4. Last, the owner separates “ma’aser sheni,” the second tithe.  This is 10% of the remaining harvest.  Within a cycle of seven years, in some years it goes to the poor, and in some years it stays with the owner, who can only serve it to people eating in Jerusalem.

The author also mentions that this mitzvah applies to taking “bikkurim,” first fruits.  He doesn’t go into detail here, so we will wait for more explanation until we get to the relevant mitzvah.  If someone separated these taxes without having followed the prescribed order, the taxpayer need not go back and start over.

            This mitzvah applies, by Torah law, only in Israel when Israel is inhabited by Jews.  This is rather vague.  We will get more detail when we get to the mitzvot that define the individual taxes. 

The shoresh our author outlines is very businesslike and straightforward.  Take the taxes in the required order and you won’t make errors.  There is one striking comment at the end, however.  He says, “When we hear good [explanations] from the m’kubalim we should accept them.”  This is the first time we have seen the author refer directly to the mystical tradition, and his reference is positive although rather vague. 

 

 

Mitzvah # 73 prohibits eating “treifah.”  Since this is a long mitzvah/essay, let’s summarize the main points.

Here we need to use terminology very precisely.  In common parlance, “treifah” means any food that is not kosher to eat.  In classic halachic literature the term refers to only one specific type of forbidden food:  an otherwise kosher animal, mammal or bird, that has a fatal condition that would kill the animal within one year; in that case, even if the animal is killed by sh’hitah, the animal may not be eaten.  (Distinguish this from an animal that dies from something other than “sh’hitah,” ritual slaughter.  That animal is called “neveilah,” and we will eventually see the mitzvah that prohibits eating it.)  The source verse refers to a case where a wild animal attacks the kosher animal and inflicts a fatal wound, but the rabbis understood the verse to be just an example of a larger category.

            At the outset of this essay, the author shows us how the rabbis conceptualized from the source verse.  The source verse says, “…meat in the field that is torn by beasts you should not eat; give it to the dogs.”  The scenario is of a predator attacking the herd of kosher animals and inflicting injuries.  First, the rabbis interpret this to be a severe wound, not a minor one.  Second, the rabbis expand the understanding from a wound that would likely kill the animal in a short while to one that would likely kill the animal within a year.  Third, the fatal condition need not arise from an animal attack.  Any fatal condition from any source makes the animal a treifah.  Fourth, the rabbis say that when the source verse says “in the field,” that is lav davka in a field, but can be anywhere.  The reference to a field just describes how this case typically arises. 

In fact, the rabbis expand the meaning of the phrase “in the field” to include any other meat that goes “outside of its boundaries,” that is, where some limit triggering a prohibition on eating has been breached.  This includes flesh cut from a living animal, meat from sacrifices that has been taken out of the area in which it should have been eaten, korban pessah taken out of the area where the group is assembled.  It also includes some cases of a fetus still within a pregnant animal when the pregnant animal is shechted.  The general rule is that if the fetus has not begun to emerge from the mother when the mother is slaughtered, the fetus is considered ritually slaughtered.  (Obviously, if the fetus is born before the sh’hitah, the baby is a separate animal and can only be eaten after it is separately slaughtered.)  Here, while the mother is still alive, a limb of the fetus emerges.  When the mother is slaughtered, the limb that has already emerged is not included in the sh’hitah.  That limb is “outside the boundary.”  Each of these would be punishable by malkos is someone ate a k’zayis of them.

 

The author’s explanation of the shoresh of this mitzvah is extensive, and it extends beyond this mitzvah to other matters of kashrut.  Basically he understands mitzvot limiting what we may eat as health measures.  Keeping our bodies healthy is important because our spiritual selves need to be housed in a body, and the healthier the body is, the more spiritual progress is possible.  Our author gives an analogy of a blacksmith working with tongs to make other tools.  It the blacksmith has good tongs, he can make good tools; if his tongs are faulty, the tools he makes will not come out as well.  Similarly, our spiritual lives are dependent on having a healthy body; if our body is not healthy, we are less likely to make spiritual progress.  Thus, God gives us mitzvot that help keep our bodies healthy.

The next question is obvious:  foods we are forbidden to eat do not appear to create ill health in our neighbors who eat those foods.  Our author asks that we rely on Divine wisdom.  We may not understand the harm in these foods, but that is our lack of knowledge.  Further, if we did understand how these foods would be harmful, we might be tempted to outsmart the system by overanalyzing the situation and lead other less sophisticated people into dangerous habits.  (Recall a similar concern when we talked about the dangers of the enterprise of giving reasons for mitzvot.)  In the case of this particular mitzvah, it seems reasonable to say that eating the flesh of an ill animal could be dangerous.  Even if the animal was wounded and promptly slaughtered, there may still be some danger in eating the flesh that we cannot identify; the deterioration on the meat may begin before we perceive it.  And even if there is no immediate harm, this restriction serves as a “fence” keeping us far away from more dangerous behavior.  Further, there are times when we need a clear rule even if the rule prohibits behavior that is not in itself problematic; that is necessary to a stable, long lasting system.

There is a further disconnect between the health impact of this mitzvah and the categories of meat that are prohibited as treifah.  Our author introduces us to the categories of treifah, 72 in all, and explains that these are “halachah l’Mosheh miSinai.”  Thus, exactly what physical conditions make an animal a treifah are defined by ancient tradition and are not subject to change or modification.  Those categories may or may not match what knowledgeable people in our author’s time or our time understand to be fatal conditions. Thus our author is aware that the halachic categories of treifah do not necessarily match scientific understanding. Treifah is a halachic category, not a medical or scientific category.

Our author has an extended explanation of the implementation of this mitzvah.  He explains that animals are presumed to be healthy, so in general there is no reason to check a given animal for each of these 72 possible fatal flaws.  (It might be different if we had some reason to suspect the animal was a treifah.  The author does not discuss that.)  There is one exception, however:  the rabbis require us to check the lungs of cattle, since lesions on the lungs that would make the animal a treifah are common.  Without going into the biological detail that our author describes, it is clear that distinguishing lesions that make an animal a treifah from lesions that do not make an animal a treifah is a difficult job.  The author describes some disagreements between different rabbis on whether certain lesions do or do not make the animal a treifah.

One might think that the mitzvah not to eat treifos does not apply to cohanim.  Several sacrifices people brought in the Temple could be birds.  The cohanim would slaughter those birds and then eat them.  But the cohanim would kill the birds not by shchitah but by applying a fingernail to the bird’s neck and breaking the neck.  Under ordinary circumstances, a bird that was killed that way would be non-kosher as a neveilah, but there is an exception for these sacrificial birds that the cohanim ate.  Our author cites a verse in Ezekiel for the proposition that under other circumstances cohanim, like all other Jews, are prohibited from eating treifos and neveilos.  The odd aspect of this argument is that prophetic works are not normally considered sources for halachah.  Presumably, the verse is just reiterating something that was already the case, and the verse serves as a reminder.

Last, our author adds something new in the punishment description at the end of the essay.  (I think the author may have mentioned this earlier, but we have not commented on it.)  He introduces one more rule that limits the application of malkos.  When one negative mitzvah covers a wide variety of prohibited behavior, violation of the mitzvah is not normally punishable by malkos.  The mitzvah we are discussing prohibits eating treifah, but also several other foods that have “gone outside of their boundaries,” so it would seem violation would not be punishable.  However our author says that violation of this mitzvah is punishable by malkos.  The author does not actually explain why, but says that Rambam and Ramban both discuss this question. 

 

Now let me make a few additional comments:

After our author’s time, customs related to the implementation of inspecting the lungs of a slaughtered cattle have evolved.  In the Ashkenazi world, the custom developed among some to be especially careful about cattle with lung lesions.  Instead of examining each lesion, some people chose only to eat animals with no lung lesions at all.  They ate only cattle with smooth lungs; “glatt,” in Yiddish, means smooth.  For most cattle, the lungs were inspected carefully and a determination was made about whether any lesions that were found did or did not make the animal a treifah; that meat was just plain kosher. Note that the issue of glatt only applies to cattle, not to birds or to other types of food.

The mitzvah of not eating treifos was a very expensive one before refrigeration and the extensive commercialization of the food industry.  If an ordinary person wanted to eat meat, the person would select an animal and have it slaughtered.  If it was a large animal, it might feed the whole town.  Meat was a rare luxury, and, if the animal turned out to be a treifah, it could not be eaten.  The extra stringency of “glatt” made eating meat all the more expensive by increasing the possibility that the animal could not be eaten by Jews.  The carcass could be sold to non-Jews, but that was probably at a substantial financial loss.

With the commercialization of the food industry, being careful about glatt became easier.  Kosher slaughter was incorporated into the larger food chain.  An animal that was shechted and turned out not to be kosher could just be shifted to the non-kosher section of the slaughterhouse.  There was loss of value, but not all that much.  (The hindquarters of the animal were also headed for the non-kosher line, eliminating the practice of removing the sciatic nerve.)  Similarly, animals that were not glatt could be sent to the non-kosher line without significant financial loss.  Meat labeled as glatt got to be much more common.

Several years ago, the term glatt morphed yet again.  It came to be used to mean something like “really, really kosher,” and was applied to all sorts of food, even by the kashrut supervising agencies.  Thus, several brands of kosher poultry are routinely labeled as glatt.  I can’t speak for what the food producers or the kashrut supervising agencies think glatt means in that context.

 

Our author’s shoresh for this mitzvah may not be entirely satisfying.  As we have said before, many things were mysterious in the ancient world that we now understand through science.  Our neighbors who do not eat only kosher food do not seem any less healthy than we do.  Our cardiologists would suggest that cholent with lots of flanken is not very healthy.  The danger of tying our understanding of mitzvot to scientific theories is that, when the science changes, we are left in an awkward intellectual position.  Of course, our author is trying to articulate a shoresh for each and every mitzvah, and that is a daunting job.

 

Finally, we have mitzvah #80, which requires us to stop and help another Jew who is unloading an animal that can no longer carry its load.  Start with the source verse:  “If you see the donkey of your neighbor whom you hate lying under its load, do not just pass him by, raise it with him.”  This is lav davka a donkey, but any beast of burden.  “Your neighbor” is understood to mean another Jew.

            One might think that the focus of this mitzvah is to help an animal that can no longer carry its load.  But our author understands it as focused on helping the person.  In our author’s discussion, the animal in this verse is more or less the equivalent of a car in our society.  When someone is struggling to unload a donkey, or to change a flat tire, this mitzvah requires us to recognize the situation and lend a hand.

            The language about “someone you hate” in the source verse is puzzling, especially as we have a mitzvah to love other Jews, “v’ahavatah l’reyecha cmochah.”   But the author does find someone we are permitted to hate: someone we have observed about to violate a mitzvah and who persists in that behavior despite out intervention trying to talk the person out of that behavior.  But this mitzvah is not limited to those people.  If we are required to go out of our way to notice that that person needs help and to help him out, how much more so someone we just do not like very much, or someone who is our friend.

            For our author, this mitzvah serves as an example of the character trait we should aspire to, of helpful compassion for others, whether we are fond of them or not.  If we are required to help that person when his problem is property management, all the more so if he is suffering bodily pain.  We can imagine God treating us as we treat others.  If we are kind and generous, God might be kind and generous to us.  If we ignore other people’s pain, we might not deserve God’s compassion.  We are instructed that where there is a conflict, we give preference to helping someone we do not much like over helping a friend, as that goes further toward inculcating the character trait we should aspire to:  help other people just because those people need help.

            As usual, mitzvot that illuminate broad moral principles are reflected both in general language and in halachic details.  Since this mitzvah applies only to other Jews, we can expect questions if the animal belongs to a Jew and the load to a non-Jew, or vice versa.  The rabbis define the limits of how far we have to go out of our way to reach the person who needs help, although it is a good thing if we help at greater inconvenience to us.  And we ought not think that we are exempt from this mitzvah because the help required is beneath our dignity; if the help needed is something we would do for ourselves, we are obligated to provide that help to others who need it.

            It is hard to imagine a mitzvah with broader implications for our everyday behavior. 

           

           

 

           

           

           

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