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Class Notes - Class #15

Mitzvot #249, 250, 255 and 256 prohibit various practices of witchcraft, sorcery and superstition.  These are very serious transgressions.  Some are subject to the death penalty; in mitzvah #62 we saw a requirement to administer the death penalty to a “machashefah.”  Later in our study we will see more prohibitions on various occult practices.

            First the author tries to explain what activity each mitzvah prohibits. The halachic sources give examples of behavior that violates each mitzvah, but conceptually it’s hard to distinguish one mitzvah from the others.

Mitzvah #249 prohibits acting based on omens.  For example, I will refrain from doing some behavior or expect bad luck because my bread fell on the buttered side or a black cat crossed my path.  It also prohibits consulting astrological predictions.  This violation is punishable with malkos.

Mitzvah #250 prohibits trying to determine auspicious times for doing various activities.  It also prohibits slight-of-hand magic, the kind of tricks modern magicians perform.  Someone who acts based on auspicious times is punishable with malkos.  Someone who asks for advice about auspicious times to do something has violated this mitzvah but is not punishable.

Mitzvah #255 prohibits conjuring voices by way of ceremonies like burning incense, etc.   The author mentions the voices coming from the conjurer’s armpit.  Someone who conjures up voices despite witnesses and warning is punishable with death by stoning. The author reminds us of a rubric we have seen many times before: where a mitzvah has a death penalty if done with witnesses and warning, a person who acts without witnesses and warning is punishable with karet and a person who violates this mitzvah b’shogeg brings a hattat.  Someone who acts based on the advice of the voices that are conjured up is punishable with malkos.

Mitzvah #256 prohibits predicting the future by way of ceremonies like burning incense, speaking with a bird’s bone in one’s mouth, inducing seizures and fits, etc.  The punishment, with witnesses and warning, is death by stoning.

            Our author thinks the shoresh for all these mitzvot is that the prohibited practices are utter nonsense and Jews should have nothing to do with utter nonsense.  The practices have the potential to mislead naive people, people with a minimal education, who might see in them some alternative to the power of God.  Those people might come to think that the events of their lives are controlled by magical forces rather than by God.  In fact, says the author, they have a hint of idol worship about them.  Although our author thought that cursing might be effective, he considers these practices worthless or even worse.

            While discussing these mitzvot the author reminds us that malkos and capital punishment are only administered where the defendant has been warned not to proceed with the violation and witnesses saw the violation.  Those punishments are administered only in Israel, by a court of 23 members.  Also, when someone who violates a given mitzvah might potentially be punishable with death, the court will not impose malkos for violating that mitzvah.  (Distinguish that from someone who violates an issur d’rabanan related to that mitzvah, which would still be punishable with makat mardut.)

 

Mitzvot #251 – 253 govern matters of personal grooming. 

Mitzvah #251 prohibits shaving a man’s temples with a straight razor.  The author says Rambam mentions an opinion that someone who shaves the crucial area of the face but leaves 40 hairs does not break this mitzvah.  

Mitzvah #252 prohibits shaving five specific parts of a man’s beard: the upper right cheek, the upper left cheek, the lower right cheek, the lower left cheek, and the point of the chin.

            Both these mitzvot have an oddity in common.  A man who shaves both his temples is punishable with two sets of malkos even though he only had one warning and even though both temples are included in one mitzvah.  Similarly, a man who shaves off his entire beard is subject to five sets of malkos even thought he had only one warning and even though all five crucial spots of his beard are forbidden by one mitzvah.  This violates Rambam’s general principle that only one punishment accrues to a person who breaks one mitzvah on one occasion. But the author cites Rambam’s explanation of this odd case: there is a tradition for this pattern of punishment but that tradition does not justify counting each temple or each crucial spot of the beard as a separate negative mitzvah since each mitzvah is articulated in the Torah with only one verbal expression for each mitzvah.

The archeological record shows that men of different cultural groups in the ancient Near East wore different hairstyles.  The author offers several approaches to the shoresh of these mitzvot.  First he suggests these grooming patterns were typical of Israel’s idol worshipping neighbors.  The author says specifically that priests of the idol worshippers were typically clean-shaven.  But this mitzvah may also function symbolically.  A man who does this mitzvah engrains in his body a reminder to keep his mind clear of idol worship and focused on God.

The author quotes Rambam in mitzvah 251; Rambam says this mitzvah only prohibits shaving with a straight edge razor, not cutting with a scissor.  Some manuscripts of the Sefer haHinnuch mention that other authorities might disagree and also forbid using a scissor to cut very close to the skin.  In mitzvah #252 the author explains that Rambam might have meant something more complex, specifically that a Jewish man who cuts the prohibited hair with a scissor but very close to the skin has violated the mitzvah but is not punishable.  In halachic terminology, the cutting is “patur aval assur,” prohibited but not punishable.  The author also suggests that Rambam may be speaking about a case where the man shaved by using the blade of a scissor as a straight razor.  The author also says that the Talmud permits a man to shave his mustache with a straight razor but that some authorities forbid a man from shaving any body hair with a straight razor nonetheless.

 The most complex part of these mitzvah/essays explains to whom these mitzvot apply.  Both these mitzvot d’oraita apply to men but not to women; the rabbis interpret the source verses to mean that only someone whose hair may not be shaved is forbidden to do the shaving.  The man who does the shaving and the man who is shaved are both violating this mitzvah, although the man who is shaved is only punishable if he participates in the shaving in some way.  One can violate this mitzvah by shaving a boy.

Since these mitzvot apply to men and not to women, the question of whether these mitzvot apply to those of indeterminate gender needs careful attention.  Recall the rule we saw earlier that as to a Torah law, if we are not sure whether the law applies to a particular case we decide to be strict.  These are Torah prohibitions, and we are not sure whether they apply to those of indeterminate gender because we do not know for sure what gender those people are.  Thus, we decide strictly and say that the prohibitions apply.  As to Torah prohibitions that apply to one gender but not the other, those prohibitions will always apply to those of indeterminate gender.  Because we made that strict ruling out of doubt, those of indeterminate gender are not punishable for violating these mitzvot.

 D’rabanan, women may not shave a man’s temples.  Women may shave a man’s beard, though, and women who have facial hair themselves may shave that. 

            We saw earlier that an eved c’na’ani, a non-Jewish male slave owned by a Jew, must obey certain mitzvot.  In general, the mitzvot that apply to women also apply to eved c’na’ani, and these mitzvot do not apply to women.  But this mitzvah is an exception.  Since the eved c’na’ani is male and has a beard, he is prohibited from shaving his temples or the designated parts of his beard.

            The author takes this opportunity to explain the general rules about which mitzvot apply to women and which do not.  He does so clearly, precisely and concisely.  He also explains why he chose to do that even though his consistent practice is to include an explanation of which mitzvot apply to women in each individual mitzvah/essay.  “Between the details [in each individual essay] and the general rule [here], the reader will remember.”  We wondered earlier whether the author was making a conscious choice to raise topics several times at different places during his work as a pedagogical technique.  This comment supports that theory.

            In general, negative mitzvot apply to men and women.  These mitzvot about shaving hair, and the prohibition on cohanim becoming tamei by contact with a dead body, are exceptions; those are negative mitzvot that do not apply to women.  In general, positive mitzvot also apply to women, but that notion is complex.  Positive mitzvot that are time-limited do not generally apply to women. Thus, women are not obligated to dwell in a succah on Succot or to put on t’fillin.  But there is a long list of exceptions, including sanctifying Shabbat, eating matzoh and the Passover sacrifice, and rejoicing on holidays among others.  It seems odd that an articulated rule has so many exceptions, but the author explains that we find it strange because we misinterpret the implications of some summaries that sound like rules.  Rules like this one are more descriptive than prescriptive.  They describe a common case but do not pretend to cover all relevant cases.

            Mitzvah #253 prohibits Jews from tattooing themselves or having someone else apply a tattoo to them.  A tattoo that consists of colored ink or paint incised into the skin violates this mitzvah.  Someone who incises the skin without ink or paint, or applies paint or ink to the surface of the skin does not violate the mitzvah.  The prohibition applies to any skin surface, whether or not that surface is commonly covered by clothing.  Someone who has a tattoo applied is only punishable if he or she assists in the tattooing process.

            Like the prior mitzvot about cutting hair, the author understands this mitzvah as related to the styles of idol worshippers.  Members of some other cultures marked themselves with tattoos to permanently signify their membership in the group, much as gangs do now.  The author mentions that tattooing was a common practice among the local Arab population.

 

Mitzvah #254 requires us to have awe for the Temple.  The author’s approach here mirrors what he has said in other mitzvot related to the Temple.  The experience of visiting the Temple was intended to be an overwhelming multi-media experience helping us feel the presence of God.  The responsibility for making that experience work rested not only on the staff of the Temple but also on the visitor.

            The author gives a whole list of specifics.  We are prohibited from building our houses with the same floor plan as the Temple or any of its sections.  When we visit the Temple we should be dressed and groomed appropriately:  we may not enter with a walking stick, with shoes on, with a money pouch or purse, with dusty feet, or with coins jangling in a pocket.  (Turn your cell phone off and put your PDA away.)  Only kings descended from David may sit in the Temple; all others must stand. We may not enter the Temple except for a mitzvah-related purpose. When we leave, we should back out a little before turning around and going on our way.  Nor may we use the Temple as a shortcut. 

Even Temple functionaries going from one job to another would leave the Temple by backing up a little. The author adds a bit to our understanding of the people who worked in the Temple.  There were the priests scheduled to serve that week, called the “anshei mishmar.”  There were similar groups of Levites scheduled to serve for each week.  There were also groups of ordinary Jews who came to represent the Jewish people in the Temple ritual.  They were called “anshei ma’amad.”

This mitzvah applies to Jewish men and women.  It applies everywhere, at least those parts of this mitzvah that are not dependent on being in the geographical location.  And it applies at all times, even after the Temple was destroyed; the same prohibitions apply to the place where the Temple used to be.

 

Mitzvah #257 requires us to treat elderly and wise people respectfully.  The source verse, Lev. 19:32, specifies that we stand in their presence.

            The author understands this mitzvah as encouraging us to respect wisdom.  Someone might become wise through years of experience or thorough Torah study, or both.  The purpose of human existence is for people to seek wisdom, meaning recognition of God.  That statement by our author recalls Rambam’s understanding of the role of philosophy and theology in human endeavors.  Of course, if the elderly person’s behavior indicates he or she has missed that point, the elderly person has not earned this respect.

            The respect we owe to wise people is parallel to the formal respect we are required to show to parents.  Not only do ordinary people stand in the presence of the wise, but the wise people also stand to show respect for each other.  Torah scholars are sometimes exempted from taxes that others pay, especially work taxes.  (In the ancient world, some tax was paid in cash, some tax was paid in goods, and some tax was in the form of the person being required to work for specific periods of time.)

            We are all required to show respect to elderly and wise people, but a student has greater obligations to his or her Torah teacher.  We should not sit in his or her designated seat.  We should be very careful in discussing or questioning what the Torah teacher has said.  I should not give a ruling about halachah in the presence of my teacher unless my teacher gives permission.  If I disagree with something my teacher said, I should do so carefully and respectfully.

            In fact, the respect we are required to show to our Torah teachers is greater than that we owe our parents.  For example, if I have a lost object that belongs to my Torah teacher and a different lost object that belongs to my parent, I am required to return them both, but I should return my Torah teacher’s object first.  More significantly, if my Torah teacher and my parent have been kidnapped, I should redeem my Torah teacher before redeeming my parent.  If my parent is also a Torah scholar, though, the respect I owe my parent takes precedence over the respect I owe other Torah scholars even if they are greater scholars than my parent.

 

Mitzvot #258 and 259 bring us back to the topic of honesty about other people’s property.  Mitzvah #258 prohibits being dishonest by using inaccurate weights and measures, and mitzvah #259 requires that our weights and other measuring devices be accurate and honest.

            The source verse, Lev. 19:35, describes measuring as a kind of justice.  If I am selling something by weight, when I weight it out I am judging whether or not I am providing the required amount. The person who knows he or she is using a false measure is like a judge who knows he is reaching the wrong verdict.  That leads to violence and leads God to punish the Jews.  As the author says, this behavior is “loathsome, disgraceful, an abomination.”  Because this mitzvah governs behavior between people, the author says violating it is more serious than violating mitzvot that only govern behavior between people and God.  The author quotes a midrash that says God redeemed to Jews from Egypt on condition that the Jews keep weights and measures honest.

            There is no punishment for violating these mitzvot because making recompense to the cheated party can make up the violation.  But the author warns that one of the dangers for a vender who cheats with weights and measures is that the vender cheats many customers and will not keep track of who was cheated and by how much, so the vender will not be able to make up the loss.

There is a huge temptation to cheat, and many ways to do so without getting caught.  The Torah thus warns us to be careful, honest and accurate.  Usually, something worth less than a prutah is considered so small as to be insignificant, but not in this context; even the smallest inaccuracy counts.  All kinds of measurements are covered by these mitzvot: weights, scales, liquid measures, linear measures for fabric etc. and land surveying techniques.  We must use a scale appropriate for the purpose.  When pouring liquids, we should avoid pouring to get the liquid to foam up so that the amount of liquid measured out is less than it should be.

The author quotes Rambam, who explains that, like other types of theft, these mitzvot require us to be scrupulously honest in our dealings with everyone, Jews, gerei toshav and non-Jews alike.   The person guilty of making a faulty measurement must pay up to the person who was cheated.

The local rabbinic authorities are required to enforce these mitzvot by inspecting the weights and measures of local merchants to make sure they are accurate.  The inspectors need to have the power to impose fines or even physical punishment on merchants who do not comply with the requirements.

The author’s discussion of this mitzvah shows the halachah thoroughly grounded in reality, and we get a very vivid picture of this aspect of commerce in ancient and medieval times.  We are required to make sure scales are properly balanced.  The best weights are made of glass or stone, materials that do not deteriorate.  Metal weights are less reliable because metal can degrade.  Coins were valued by the weight of the metal they were made of.  The author warns us not to use a chipped coin as a weight, or even leave that chipped coin where someone else might use it as a weight.  If a metal weight degrades so much that it becomes an accurate weight for a lesser amount, it may be used again.  We should not keep weights for irregular amounts, lest we use them by mistake for more common amounts, and we should not keep weights that can easily be mistaken for a different amount.

Surveying land was a specialized skill that required special care.  A surveyor might use a cord as a measure of length, but the length of the cord might vary depending on weather conditions, so the surveyor had to be careful to be consistent using the cord only under the same weather conditions that prevailed when the cord was used before.  The surveyor needed to be especially careful taking measurements in rough terrain. 

In the ancient world, the need to survey land was a major impetus for the development of mathematics, especially geometry.  The author describes three types of angles, four different kinds of triangles and four kinds of quadrilaterals.  The original manuscript included a diagram for each figure.  We all learned these in high school geometry, but for our author these are challenging and exciting. 

He also discusses the use of mathematical approximations in halachic literature.  The author mentions Talmudic passages that refer to the length of the diagonal of a square and refer to the circumference of a circle as it relates to the radius.  Using the Pythagorean theorem, we end up calculating the diagonal of a square in terms of the square root of two.  We need pi to express the relationship between the radius of a circle and its circumference.  The Talmudic passages that refer to these calculations express the relationships as ratios of whole numbers, but both of these calculations are irrational numbers that cannot be expressed as a ratio of whole numbers.  The author knows the Talmud’s calculations are only approximate, and he thinks the rabbis of the Talmud also knew they were approximations.  Of course, since these are both irrational numbers, approximation is as good as anyone can do even now, although we can approximate much more closely than the calculations described in the Talmud.

The author wonders how the sages of the Talmud, committed to truth and accuracy, could operate with what they knew were approximations.  But there were only a few situations where these calculations were necessary for halachic purposes.  And the rabbis always rounded their numbers to be strict about the application of the mitzvah involved so that no one lost property based on the approximate calculations.  But, warns our author, surveyors need to be more exact to comply with these mitzvot.

 

Mitzvah #261 mandates the procedure for administering the death penalty of burning.  Most of the content of this mitzvah/essay has been covered previously, and the author describes the required procedure clearly and vividly.

 

Mitzvah #262 is a prohibition on our adopting the customs of the Amorites or other idol worshipping neighbors. Earlier on in his work, our author spoke of the danger that someone who keeps bad company will be led into bad behavior.  The notion here seems similar:  if we are too much like our idol worshipping neighbors in superficial cultural ways, we may end up behaving like them in more important matters as well.

When Jews live among non-Jews, the Jews are part of a larger culture.  The author does not tell us how to tell which parts of that culture are just “the way things are” and which we are required to avoid.  Instead, the author gives examples.  He says we should not follow local mores of dress, but he does not tell us how different our dress has to be.  The author quotes the midrash halachah that we should avoid attending Roman theatres, circuses and spectacles, which involve idol worship and other immoral practices; the author does not tell us whether entertainment that is less morally repugnant would be acceptable.  The author says we should not style our hair in a Mohawk the way the idol worshippers do, but we don’t know what that hairstyle meant in its cultural context so it’s hard to extrapolate to other examples.  At the end of the essay, the author says someone is punishable for violating this mitzvah for emulating the idol worshippers.  Rather, Jews should be focused on God and mitzvot.  The main idea seems to be that we should avoid imitating the surrounding idol worshippers, but the author leaves the limits vague.

             

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