Tuesday, May 25, 2010

Sanhedrin 103b - Amon and Mo'av

The gemara talks about the advantages of providing food for people (le'gima). The gemara considers this to be the reason that the Torah requires us to distance Amon and Moav, and not allow them to marry into Yisroel. The Maharsha points out that the gemara indicates that this reason applies to both Amon and Moav, unlike the Ramban (Parshas Ki Teitzei) who says that Moav actually did at least sell us food. The Maharsha considers the fact that Mo'av didn't provide food for free to be a significant enough violation for the Torah to distance them, but the Ramban does not.
The Torah (Devorim 23:4-7) writes:
לא יבא עמוני ומואבי בקהל השם וכו' על דבר אשר לא קדמו אתכם בלחם ובמים בדרך בצאתכם ממצרים, ואשר שכר עליך את בלעם בן בעור וכו' ולא אבה ה' אלקיך לשמוע אל בלעם ויהפך השם אלקיך לך את הקללה לברכה כי אהבך השם אלקיך, לא תדרוש שלומם וטובתם כל ימיך לעולם
The Ramban understands that the first reason אשר לא קדמו אתכם וגו applies to Amon, and the second reason ואשר שכר עליך את בלעם applies to Moav. The S'forno has a similar approach. Although the S'forno isn't exactly like the Ramban and does hold Moav accountable for not providing food for free, the combination of the fact that they also hired Bil'am is the reason to distance them.
There are two serious questions on the reasons given by the Torah.
1. Why would the Torah stick in a seemingly superfluous pasuk - ולא אבה ה' אלקיך לשמוע אל בלעם ויהפוך ה' אלקיך לך את הקללה לברכה?
2. Why does Amon come before Mo'av since the aveira of Mo'av seems worse. Amon was a passive aggressor by NOT providing, whereas Mo'av was an active aggressor by hiring Bil'am?
The Alter from Kelm (chochma u'mussar - mama'ar 12) explains based in the Ramban that the obligation of hakaras ha'tov is so important that a passive violation of not showing hakaras hatov is worse than an active violation of hiring bil'am. In the zechus of Avrohom, Lot was saved and they had an obligation to show hakaras ha'tov, and they did the opposite. Although both actions showed a lack of hakaras hatov, the Torah is specifically trying to teach that a lack of hakaras ha'tov, even passively, is deserving of being distanced from klal yisroel forever.
It seems to me that it is for this reason that the Torah goes out of its way to say that the hiring of bil'am to curse Yisroel wasn't effective. Had the Torah not pointed this out, the implication of the passuk would have been that we distanced them because of the damage that they caused us. The Torah therefore writes that they didn't damage us because Hashem refused to listen and turned the curses into blessings. Ultimately, the hiring of Bil'am benefited the Jews and didn't cause us any damage, yet we distance Mo'av - it is not because of their actual impact, rather because of their lack of hakaras hatov.

Sunday, May 23, 2010

Sanhedrin 101b - Bas Pharoh and Shlomo Oversleeping

The gemara says that Yerov'am was justified in giving mussar to Shlomo HaMelech for closing the gates of those going up to Yerushalayim for Yom Tov for the sake of doing "angarya" for the daughter of Pharoh. Rashi explains that Shlomo was trying to force the Jews to either pay taxes or tribute to her on their way in to Yerushalayim. But, Rashi offers a 3rd peshat - Shlomo would lock the doors of the courtyard of the Beis HaMikdash and hold the key. He would generally sleep until the 3rd hour of the day and the Jews would patiently wait for him to open the doors before sacrificing the morning Tamid, and Yerovam accused him of wanting payment toward Bas Pharoh as a condition to hand over the keys.
I once heard a shiur from Rav Nota Greenblatt where he explained a Rambam in Temidin U'musafin (1:2) who writes about the appropriate time for the sacrificing of the Tamid -
ואימתי זמן שחיטתן של בקר? שוחטין אותו קודם שתעלה החמה משיאור פני כל מזרח, ופעם אחת דחקה השעה את הצבור בבית שני והקריבו תמיד של שחר בד' שעות ביום
At first the Rambam writes that the Tamid must be brought when the Eastern side lights up, no later, but then goes on to quote a story in the second beis hamikdash where it was brought later. After much elaboration and build up to explain the concept, Rav Nota explained that by korbanos the kashrus of the korban is not necessarily dependent on the fulfillment of the mitzvah. Regarding the mitzvah, the last moment to bring the korban is משהאיר המזרח, but regarding the kashrus of the korban it is still valid until the 4th hour of the day. Therefore, the Rambam quotes the situation where it was once brought late, indicating that it is still kasher, but the mitzvah has been lost. He supported this argument based on a Rabbeinu Yona in Brachos. Rabbeinu Yona (4th perek 18 in pages of Rif) on the testimoney of Rav Yehuda Ben Bava about the Tamid being brought at the 4th hour, writes -
ואומר במדרש שהמלך שלמה היה ישן עד ג' שעות כמו שדרך בני מלכים לעמוד בג' שעות, ופעם אחת הטעתו בת פרעה וישן עד ד' שעות והקריבו תמיד של שחר בד' שעות, ומזה היתה קבלה ביד ריב"ב והעיד שתמיד של שחר קרב בד' שעות
Rabbeinu Yona explains that the testimony of Rav Yehuda was based on the story of Shlomo where it was once actually brought at the 4th hour. The Hagahos Ma'aseh Ilfas (printed after the Rif in the vilna shas) asks that the midrash continues that Shlomo was harshly rebuked by his mother Bas Sheva, or according to some versions was rebuked by Yerovam Ben Nevat, implying that it was against the din to sacrifice the Tamid so late in the day. This midrash is also quotes by rashi in Mishlei 31 - when shlomo married bas pharoh on the day of the chanukas beis hamikdash, he stayed awake all night listening to music and therefore over slept the next morning until the 4th hour. Since the keys were under his pillow, the Tamid was brought in the 4th hour and Bat Sheva rebuked him for this. How then can we learn from here that it is permissible to sacrifice the Tamid until the 4th hour - this was a mistake of Shlomo's for which he was rebuked? Rav Nota explained that this could have been the Rambam's source. In the 4th hour the korban is still kasher, yet Shlomo was rebuked by his mother because the time that the mitzvah of bringing the korban can be fulfilled had expired.
The difficulty with this approach is that both Rabbeinu Yona and Rashi by us seem to describe that had Shlomo woke up at the 3rd hour, as he routinely did, he would not have received rebuke. Yet, according to this approach in the Rambam, the z'man mitzvah had already passed when the Eastern side lit up (way before the third hour). Furthermore, if the mitzvah of Tamid cannot be fulfilled in the 4th hour, why does Rav Yehuda hold that one can daven in the 4th hour? Shouldn't the mitzvah of tefilah be bound to the mitzvah of the Tamid rather than just the kashrus of the Tamid?

Friday, May 21, 2010

Sanhedrin 99b - Mega'leh Panim L'Torah and Apikores

The gemara offers possibilities for the definition of מגלה פנים לתורה and אפיקורס. Rashi explains that the language of megaleh panim implies that it is worse than an apikores. Rashi seems to understand that apikores comes from the language of hefker, but megaleh panim is worse because he exhibits tremendous chutzpah against those who study Torah, or creates drashos for the sole purpose of making a farce of the Torah like menashe ben chizkiya.
However, the Rambam defines an apikores as someone who rejects prophesy or rejects Hashem's awareness about people, and defines megaleh panim l'torah as one who does blatant aveiros publicly in a way where he exhibits the chutzpah of not being at all embarrassed about his violations (Teshuva 3:8, 3:11). The kesef mishna already points out that the Rambam seems to have different definitions than the gemara for these terms. The Maharatz Chiyus points out that the Rambam seems to get his definition of megaleh panim l'torah from the yerushalmi who also points to yehoyakim the king of Yehuda who violated aveiros openly. However, the Rambam himself in his commentary on the mishna (immediately before the 13 principles) writes that apikores is an aramaic word for one who is mafkir and degrades the Torah and those who study it. This seems to conform with the gemara definition, and the Rambam doesn't even mention the possibility that rejecting prophesy would also fall under this heading.
Furthermore, the Rambam (Teshuva 3:8) creates a category called a "kofer b'torah" under which he includes: 1. One who denies the Torah being from Hashem including even one pasuk or word. 2. One who rejects that Torah sh'bal peh comes from Hashem. 3. One who says that any mitzvah in the Torah has been retracted or replaced. The Rambam doesn't associate this with being me'galeh panim l'torah. However, in the 13 principles (#8), the Rambam includes anyone who says that even a seemingly irrelevant pasuk is not from Hashem, or one who rejects the divinity of Torah sh'bal peh, and writes that one who takes these positions is a kofer and megaleh panim l'torah. The "kofer" categorization is consistent with the Rambam in the Yad, but the megaleh panim l'torah association isn't consistent with the Rambam in the Yad.

Saturday, May 15, 2010

Sanhedrin 93b - Judging by Smell

The pasuk says in Yeshaiya (11:3), in reference to Moshiach - והריחו ביראת השם ולא למראה עיניו ישפוט ולא למשמע אזניו יוכיח - the judgement whether one has yir'as hashem will be done by smell, not sight or vision. The idea is explained by the Radak that the sense of smell is very sensitive - without much exposure and even from a distance one can detect an odor with their smell. Similarly, with a keen sense of smell the Moshiach will have the ability to distinguish between the tzadik an the rasha. In our gemara Rava explains that he will be מורח ודאין - smell and judge. From the mere scent of a person, Moshiach will have the ability to judge him. The gemara says that when bar koziva claimed to be the moshiach, he was tested to see if he has this keen sense to judge by smell and when the Rabbonon saw that he lacked this ability he was killed. Rashi in Yeshaiya attributes this keen sense to the wisdom of Hashem - כי בחכמת הקב"ה בקרבו ידע ויבין מי זכאי ומי חייב.
Rav Nota Greenblatt in his sefer "k'reich sadeh" on the haftorah of mikeitz, points out that rashi considers this ability to be a chochmah of Hashem. With this he explains the Rambam (Teshuva 9:2) - מפני שאותו המלך שיעמוד מזרע דוד בעל חכמה יהיה יותר משלמה. What is the source of the Rambam that the moshiach will possess wisdom greater than Shlomo HaMelech? It is from this pasuk that Moshiach will have a sense to be able to judge in ways that we don't see Shlomo was able to judge. Rambam and Ra'avad (Hilchos Melachim perek 11) argue whether the melech hamoshiach must perform a miracle to be trusted. Rambam proves that he doesn't from the fact that R. Akiva himself became a follower of ben koziva and didn't ask for a miracle. But, the Ra'avad holds that he must do a miracle as we see from our gemara that they tested him whether he can judge by scent. Perhaps they argue whether this level of perception is considered a miracle to confirm himself as moshiach, or just an extreme level of wisdom but not miraculous. R. Nota concludes by writing that in every generation we are blessed with gedolim who have this keen sense on some level of "judging by scent" to distinguish between emes and sheker. Sometimes there are issues that come up which the chachamim deem dangerous, but are unable to articulate the exact danger - they are being מורח ודאין - judging with their keen sense of smell.

Tuesday, May 11, 2010

Sanhedrin 89b - Power of A Navi (prophet) to Violate Din Torah

The Rambam (Yesodei HaTorah 9:3) after emphasizes that the Torah that was given to us by Moshe may not be changed or manipulated in anyway, even by another prophet. The rationale is that included in the prophecy of Moshe is that the Torah will be eternally relevant and obligatory, therefore a lower level prophet who would claim otherwise would be attempting to uproot the prophecy of Moshe. The Rambam then goes on to explain the exception, when a prophet can be followed even though he is attempting to undermine a halacha in the Torah. The Rambam then writes a very cryptic sentence:
וכן למדנו מחכמים הראשונים מפי השמועה בכל אם יאמר לך הנביא עבור על דברי תורה כאליהו בהר הכרמל שמע לו וכו' והוא שיהיה הדבר לפי שעה, כגון אליהו בהר הכרמל שהקריב עולה בחוץ וירושלים נבחרת לכך והמקריב בחוץ חייב כרת. ומפני שהוא נביא מצוה לשמוע לו וגם בזה נאמר אליו תשמעון. ואילו שאלו את אליהו ואמרו לו היאך נעקור מ"ש בתורה פן תעלה עולותיך בכל מקום, היה אומר לא נאמר אלא המקריב בחוץ לעולם חייב כרת כמו שצוה משה, אבל אני אקריב היום בחוץ בדבר השם כדי להכחיש נביאי הבעל, ועל הדרך הזאת אם צוו כל הנביאים לעבור לפי שעה מצוה לשמוע להם
The difficulty with the Rambam is that he first stipulates that it must be temporary, then he writes that "since he is a navi there is a mitzvah to listen to him", and then he points out in response to those who may ask how this can be done, that it doesn't technically undermine the Torah since "I am only sacrificing TODAY out of the mikdash by the word of Hashem TO CONTRADICT THE BA'AL". Although the Rambam mentions 3 points: 1. temporary. 2. he was a navi. 3. it was for the purpose of contradicting avoda zara; he doesn't list all 3 as conditions, rather he uses the first 2 as conditions and the third as a response to the challengers. What is the Rambam trying to get at with this very verbose explanation?
The gemara in Sanhedrin seems to contradict the gemara in Yevamos 90b regarding the conditions under which a Navi can undermine the Torah. The gemara in Sanhedrin focuses on the fact that Eliyahu was "muchzak" (established as a tzadik, and honest navi - rashi). But the gemara in Yevamos is willing to expand this power to the Rabbonon in general, and the only limitation that is placed is that it be "למגדר מילתא", to protect the Torah by undermining idolatry. Tosafos struggles with how these 2 gemaras fit with one another. One approach that of Tosafos is that the ability to undermine doesn't come from prophesy, rather it is the מיגדר מילתא necessity that permits the temporary violation of the Torah. This power is given through the rationale thinking of the chachamim who deem something necessary. However, the only way that the idolatry would have been undermined is if they could trust that the miracle fire would descend from heaven, and for this it was necessary for Eliyahu to be "muchzak" as a navi to believe that it would actually occur. According to Tosafos the license to slaughter out of the mikdash was למיגדר מילתא, but this would have only been achieved by the fire descending from heaven which they could only rely on because Eliyahu was an established prophet.
The Rambam clearly has a very different approach. First of all, the Rambam writes that Eliyahu's response of "אני אקריב היום בחוץ בדבר השם", implies that the decision of Eliyahu wasn't motivated by rational thinking, rather by the prophesy he had from Hashem (lechem mishnah points this out). Since the Rambam understands that the power that permitted Eliyahu to make this decision was prophecy, the question returns on how to reconcile the gemara in Sanhedrin with the gemara in Yevamos?
It seems to me that the Rambam understands that the gemara in Sanhedrin establishes why there is a mitzvah to listen when the Navi says to violate. The gemara says that since he is "muchzak", a well established Navi, there is a mitzvah of ואליו תשמעון, which requires everyone to listen to him. This is all assuming the Navi has the authority to make the declaration to violate the Torah. If he has the authority then we must listen because he is an established Navi. But, what gives him the authority? To that the gemara in Yevamos says למגדר מילתא, which is a temporary uprooting of the Torah for an important purpose i.e. undermining avoda zara, gives one the authority to do it. Therefore, the Rambam rules "Because he is a Navi (meaning an established Navi), there is a mitzvah to listen. But then the Rambam wants to explain how the Navi himself has the authority to undermine the Torah. If he is challenged by the cynics who question his ability to make such a ruling, Eliyahu would respond - אני אקריב היום בחוץ, בדבר השם, כדי להכחיש נביאי הבעל. Meaning, his authority is based on 3 criteria: 1. "Today" - only temporary. 2. "By the word of Hashem" - prophecy. 3. "To contradict the prophets of the ba'al" - for the sake of protecting the Torah.
In short, the Rambam holds that the gemara in Yevamos establishes the authority of the Navi to undermine the Torah - למגדר מילתא, but the gemara in Sanhedrin explains why we must listen to him and trust that his decision was predicated on the authority granted to him - מוחזק.

Monday, May 10, 2010

Sanhedrin 88a - Zakein Mamrei

The mishna gives very specific criteria on what is necessary to be qualified as a zaken mamrei. For example the mishna says that by undermining an entire mitzvah in the Torah one wouldn't become a zakein mamrei, unless they agree to the mitzvah and undermine a detail that is midivrei sofrim. The gemara makes the requirement even more specific in that the divrei sofrim has to be an additional thing, but not something that undermines the entire mitzvah.
The Rambam (pirush ha'mishna) writes that some make a mistake and think that for undermining an entire mitzvah in the Torah, there is no death penalty. The Rambam explains that this is incorrect. Although one wouldn't be labeled as a zakein mamrei, they would be chayev misah. The Rambam writes that one who doesn't believe in "Hashem E'chad" is also killed. Why?
ודאי זה יהרג משום שיצא מן הכלל, כלומר מכלל ישראל, אשר מהם יהיו החוטאים שאחד מהם כלומר אחד מן החוטאים זקן ממרא לפי שאין זקן ממרא ההורס לחומת התורה ולא המחכחיש לכל הקבלה מכל וכל וכו' ולכן חייבתו תורה מיתה לכבוד בית דין ומעלתה וכו' אבל צדוקין ובייתוסין שמכחישין את הקבלה מכל וכל ומסתפקין על הכתוב בתורה וסברתם בהם, אינם מזה הכת, אבל הן מן הכת שאומרים אין תורה מן השמים וכו' אבל הן נהרגין על הכפירה כמו שנהרג המכחש באלקות או מי שמכחש משה רבינן ע"ה כי כל ההורס יסוד מאותן היסודות שאמרתי לך יצא מדין בעל התורה
The Rambam holds that a zakein mamrei is actually a very mild category of those who reject the Torah or the Rabbonon and are really only killed for the kavod of the beis din because they don't ultimately undermine and break down the entire system. But, those who do reject and undermine the Torah are far worse than a zakein mamrei.

Thursday, May 06, 2010

Sanhedrin 84b - Surgery to a Parent

The gemara raises the question whether a son can do bloodletting for a parent. Both Rav Masna and Rav Dimi cite sources that indicate it is permitted since it is beneficial for the parent. However, the gemara then quotes two stories, one with Rav and the other with Mar Brei D'ravina who didn't permit their children to remove a splinter and remove puss from a burn, out of concern that they would cause a wound which would be an inadvertent violation (of a chiyuv chenek). The ma'aseh with Rav and Mar Brei D'Ravina seem to contradict the previous gemara which permitted a son to do a surgical procedure for a parent since it is ultimately beneficial for them. There are 3 approached in the Rishonim (cited in Beis Yosef Y.D. 241) to explain this gemara:
1. Rambam makes a distinction whether or not there is someone else available to do it. Rav Masna and Rav Dimi are both speaking when there is no one else aside from the son to do it, so it is permitted. But Rav and Mar Brei D'ravina are speaking when there is someone else, so they didn't permit their sons to do it.
2. Rif and Rosh hold that there is a machlokes. We pasken like the ma'aseh with Rav and Mar Brei D'ravina. Therefore, it is assur for a son to remove a splinter of a parent, or even to let blood for a parent. Even if there is no one else available, so long as it isn't life threatening, it is forbidden.
3. Ramban explains that there is a fundamental difference between blood letting and the removal of a splinter (or letting puss out of a burn). By blood letting the actual wound is the refuah. A son is allowed to give the parent a wound when the actual wound is beneficial and for the sake of refuah. However, in the situation of the splinter and burn, the actual procedure should not result in any wound, but there is a concern that the son will cut more than necessary causing the parent to bleed. Since the wound is not the refuah, it is merely incidental and may result from the refuah, it is forbidden for a son to do it for a parent (unless there is no one else available to do it).
A major question on the entire sugya is whether a parent has the ability to be mochel. Although a parent can be mochel and forgo their kavod, it isn't clear whether mechila would help to allow their son to curse or wound them. The Minchas Chinuch (mizvah 48) assumes that mechila would help for this. He learns this from the Rambam (sanhedrin 26:6) who holds that once a person violated the prohibition of cursing, mechila will not rectify the situation. This implies that if one gave permission in advance for someone to curse, it will work. The minchas chinuch assumes that just as one can be mochel to allow someone to curse him, he and even a parent can also be mochel to allow someone to hit him.
The Turei Even (Megilla 28a) cites a Rivash (teshuva 220) who says that a Rebbi can be mochel on kavod, but cannot give permission to the talmid to degrade him (it is assur for the rebbi to be mochel and the mechila isn't effective). Based on this he assumes that the same would be true for a parent. Although a parent can be mochel on kavod, they cannot be mochel on degradation or to allow their child to hit them.
The Turei Even proves his point from our gemara. Why did Rav and Mar Brei D'ravina not allow their children to remove a splinter or take out puss, they should have been mochel to allow their children to do it? The Minchas Chinuch dealt with this proof by saying that since they weren't expecting an injury, they weren't mochel on it, therefore their children couldn't do it. But had they been fully mochel in the event that the son cuts the parent to cause bleeding while removing the splinter, it would be permitted.
Even the Turei Even cites a gemara in Kiddushin 32a which seems to understand that mechila would permit even a son to degrade a parent. The situation was where Rav Huna ripped silk in the presence of his son to test if he would get angry, but wasn't violating lifnei iver by causing the son to disrespect the parent, because Rav Huna was mochel. We see that mechila would help to allow a son to disrespect the parent, and it should follow that with mechila the son should even be able to hit the parent.
Based on all the above, if a child is a surgeon and receives permission from his parent to do the surgery, even if it isn't pikuach nefesh, when no other doctors is as proficient as the son, it is mutar. According to the Ramban so long as the actual procedure requires the drawing of blood (such as a surgery), we don't consider it to be a wound since the actual surgery is productive and beneficial. Even if it is considered a chabura and should be assur, the Rambam permits if there is no one else. It seems that if there is no one else who is as proficient in the surgery, it would qualify as no one else. Furthermore, even if it considered a chabura, the minchas chinuch holds that a parent has the right to be mochel, and the Turei Even seems to submit based on the gemara in kiddushin.

Wednesday, May 05, 2010

Sanhedrin 83b - Punishment for Eating Teruma that is Tamei

The gemara says that a kohen who himself is ta'mei would be chayev misah bidei shamayim for eating tahor teruma. However, a kohen who is tamei and eats teruma that is also tamei is not chayev. Why? The gemara learns it out from a pasuk ומתו בו כי יחללוהו - פרט לזו שמחוללת ועומדת. The chiyuv misah is for violating the teruma by eating it and doesn't apply to teruma which is already violated.
The Mishna L'melech (Hilchos Terumos 7:1) questions what the halacha would be for a tamei kohen who eats teruma that is only tamei m'drabonon. Is the kohein chayav misah since on a Torah level the teruma was still tahor and he violated it, or is the chiyuv misah reserved for eatable teruma and since this teruma was tamei m'rabonon and not eatable, he wouldn't receive misah bidei shamayim? The Mishneh L'melech proves his points from a completely different context where a similar question can be asked. The Rambam (Hilchos geneiva 2:8) writes tahat if one would steal and shecht an animal in a way where the shechita would invalidate it only d'rabonon (such as chulin in the courtyard of the beis hamikdash), he is obligated to pay the 4 or 5 payment, since m'doraysa it was a valid shechita. Although the animal is practically inedible, since it is technically permitted m'doraysa, there is a chiyuv 4 or 5. Here too, since the teruma is tahor on a Torah level, the tamei kohen would be chayev.
It seems to me that this can be proven from a more localized din. Tosafos 83b raises a question, how can you have tahor teruma that is still tahor at the time it is being eaten and wouldn't become tamei by the kohen's touching it? Tosafos offers some scenarios such as not being huch'shar (susceptible) to tu'mah. Then Tosafos answers that it would depend on whether the Tuma on the kohen's body preceded the tu'mah on the teruma, or the reverse. Meaning, Tosafos holds that even if the teruma were tamei d'oraysa, the kohen would be chayev misah for eating it if his tu'mah preceded the tu'mah on the teruma. From here we learn that we don't look at whether the teruma is practically eatable or not. Rather, we look at the technical relationship that the kohen has to the teruma. Since the tu'mas ha'guf of the kohen created an issur on him to eat the teruma prior to the teruma itself becoming ta'mei, we consider him to be actively mechalel (violating) the teruma when he eats it (even though when he actually ate it, it was already tamei). Therefore, this should certainly be true if the teruma was only ta'mei m'drabonon. Meaning, even though the teruma cannot practically be eaten, the tu'mah d'oraysa status of the kohen (even if it comes after the tu'mah d'rabonon of the teruma) should create a technical prohibition to forbid him from eating the teruma and he should be chayev mi'sah.

Tuesday, May 04, 2010

Sanhedrin 82a - Heter to Kill the Goy

The gemara discusses the din of קנאין פוגעין בו and its parameters. Although the gemara doesn't identify the source of the heter, Rashi in the mishna 81b and the Rambam (Hil. Issurei Biah 12:4) both write that it is a halacha l'moshe m'sinai. The gemara itself hints to this (82a bottom) that Pinchas recalled this as a halacha that Moshe taught him after descending from Har Sinai. However, the halacha l'moshe misinai seems to only be a heter to kill the Jew who violated the chilul Hashem of publicly having relations with the goy. Actually, Pinchas was only allowed to kill Zimri without consulting his Rebbi, Moshe, because it was a situation of chilul hashem (as rashi explains d.h. shmuel - שכל מקום שיש חילול השם אין חולקין כבוד לרב לפיכך הורה בנחס הלבה בפני רבו ולא המתין ליטול רשות ממשה, שלא יראו הרואים וילמדו להתיר את כותית). But, what is the heter to kill kazbi (the non-jewish woman)?
Rav Moshe (Igros Moshe, Even Ha'Ezer 1:38/39) discusses this question. In a teshuva to his eldest son in law, Rav Shisgal, he explains based on the Rambam (Hil. Issurei Biah 12:10) who writes:
אבל ישראל הבא על הכותית וכו' כיון שבא על הכותית בזדון הרי זה נהרגת מפני שבא לישראל תקלה על ידיה כבהמה, ודבר זה מפורש בתורה שנאמר "הן הנה היו לבני ישראל בדבר בלעם וכל אשה יודעת איש למשכב זכר תהרוגו - רמב"ם הל' איסורי ביאה פרק י"ב הל' י
The Rambam holds that just as an animal that was a Nirvah is killed because of the embarrassment of the Ro'veia, so too the adulterous shiktza who caused תקלה to the Jew is also killed. Rav Moshe struggles with why the Rambam has to search for a source for this din using the pasuk of b'nos midyan, and not just cite the pasuk by Pinchas where we know that he killed kazbi along with zimri. Rav Moshe understands that had the Rambam used Pinchas as a source, it would only be a heter to kill her at the time of the act, when there is a heter to kill him, but by citing a pasuk by the daughters of midyan we learn that even afterward they can be killed. Rav Moshe explains that it is possible that the adulterous woman (i..e kazbi) can be killed after the fact, even without a beis din. Rav Moshe explains that the gemara implies that the limitation of the din קנאין פוגעין בו being only at the time of the act and the din that the ka'nai is not allowed to consult with a beis din, are fundamentally connected (ולא עוד אלא שאם וכו). The fundamental connection is that the Torah has some level of compassion on the adulterer, therefore beis din won't give permission to kill him and he can only kill at the time of the act. However, the concept of kana'us would technically extend even after the act. Therefore, the gentile woman, who the Torah doesn't have the same level of compassion on, can be killed even after the act is over (under the heter of קנאין פוגעין בה and would not require a court proceeding).
Rav Moshe's approach to the Rambam leaves one aspect difficult. The language of the Rambam implies that any situation of a Jewish man having relations with a shiktza, she can be killed because of the "taka'la" she is causing him. The Rambam doesn't limit this to a public display where we apply the din of קנאין פוגעין בו, and seems to hold that it would apply to even a private relationship. Rav Moshe who understands that the basis for the heter to kill her is also קנאין פוגעין בה because he holds it can be done even without a beis din, is forced to say that she is only allowed to be killed when done publicly, not privately. Limiting the ability to kill her after the fact to a situation where the aveira was done publicly is against the simple reading of the Rambam? Perhaps we can explain based on the Nimukei Yosef that I mentioned yesterday on this blog, that the din קנאין פוגעין בו when done in public, is indicative of the severity of the aveira even when done in private (יהרג ואל יעבור). Therefore, if we are able to kill her when it is done in public because of the "taka'la" she caused, similar to the animal that is killed, she can even be killed based on this rationale when the aveira was done in private.

Monday, May 03, 2010

Sanhedrin 81b - Jew Having Relations with a Goy

R. Yakov Kaminetzky (Parshas Vayechi) tries to explain the difference between the kana'us of Shimon and Levi. They were both involved in killing out shechem, and were chastised by Yakov. Levi learned how to control their kana'us and use the Torah to moderate when it is appropriate. Shimon on the other hand never controlled his kana'us. In the episode with Zimri, it was the Torah controlled kana'us of Pinchas (shevet levi) who killed the uncontrolled behavior of Zimri who was from Shimon. His point is that the din of הבועל ארמית קנאין פוגעין בו, is exactly that. As Rashi writes, it is a halacha reserved for בני אדם כשרין המתקנאין קנאתו של מקום, not a more hotheaded approach to venting personal anger.
R. Yakov illustrates the idea of an uncontrolled kana'aus that is not within the confines of Torah. The question is sometimes asked, which is worse - to marry a goy or marry a woman who won't keep hilchos nidah? The kana'us of a תלמיד שלא שימש כל צרכו would surely be to respond based on the associated punishment - relations with a nidah is kareis, therefore worse. However, R. Yakov points to the Rambam (Hilchos Issurei Bi'ah 12:7-8) who writes about the severity of even having relations with a goy.
The Rambam writes:
עון זה, אע"פ שאין בו מיתת ב"ד אל יהיה קל בעיניך, אלא יש בו הפסד שאין בכל העריות כמותו, שהבן מן הערוה בנו הוא לכל דבר ובכלל ישראל נחשב אע"פ שהוא ממזר, והבן מן הכותית אינו בנו וכו' ודבר זה גורם להדבק בעכו"ם שהבדילנו הקב"ה מהם ולשוב מאחרי ה' ולמעול בו
The Rambam points to the child born from the illegal relationship as a more accurate litmus test to the severity of the relationship. A child born from adultery is a mamzer, but retains status of a Jew, whereas a child born to a non-jewish woman from a Jewish man doesn't even retain the status of a Jew. Furthermore, marriage out of the faith leads to the deterioration of the very fabric that holds the Jewish people together by causing attachment to the goyim and reject Hashem. Based on this Rambam, Rav Yakov writes that it is obvious that it is better to marry a Jewish woman and violate an issur kareis regularly, than to marry a non-jew.
A very strong proof the severity of the issur to have relations with a goy is the Nimukei Yosef at the end of perek ben sorer u'moreh. In the context of giving up one's life to avoid prohibited sexual relationships, the Nimukei Yosef writes:
מיהו נכרית דאנסה ליה לישראל לבא עליה יהרג ואל יעבור שזו ודאי בכלל עריות חמורות היא, דהא זימנין דחייב מיתה כגון בפרהסיא וכמעשה שהיה דקנאין פוגעין בו, ואם לא פגעו בו קנאין חייב כרת, הלכך אפילו בצנעא דליכא כרת יהרג ואל יעבור מדין אבזרהא דהא אשה זו פעמים שהיא ערוה גמורה וחייב עליה כרת
The Nimukei Yosef says that one would be obligated to sacrifice their life to avoid having relations with a goy. Even in a situation where one isn't able to be killed, such as in private, they must give up their life to avoid the prohibition.