God vs The Multiverse

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Wednesday, February 29, 2012

It's Good To Be King (Part 5: Closing Methodology)

One of the more challenging aspects of learning, is knowing when try to go further in understanding an idea and when to stop.  We want to clarify two different reasons a person stops.

1) Sometimes, the direction you desire to pursue is philosophical.  For example, why is the King only allowed to execute with a sword and nothing else?  (Is it because the sword represents conquest and warfare?  Is it because, even the judicial death by sword of beis din is only employed twice, for the murderer and idolatrous city, thereby representing an execution for the purpose of sustaining social order?  Maybe there are other possibilities.)  The desire to understand this question is part of a healthy, inquisitive mind.  However, the question by its nature, calls for a more speculative answer.  Maybe you think about it some, but ultimately, you might choose to stop and direct your thoughts to areas that lend themselves to a better grounded, more certain approach.

2) Sometimes, the area you desire to pursue is not a single point, but rather a bigger, more complex issue.  To do justice to the area, it would demand a more thorough  investigation of related facts and svaras.  For example, what is the full scope and powers granted to the King to enforce this new system of extrajudicial justice?  This question can be pursued in a well-grounded manner, but it demands a substantial dedication of your attention.  Sometime you choose to follow this desire and put in the required work, and other times you choose to stay on your current path.  In either case, you try not to speculate in an area which does lend itself to a more definitive approach.

We were satisfied by the idea that a King's powers of execution come under the system of the King's justice.  It made sense to us that the King has the authority to issue decree's in his capacity of ensuring a just, orderly society.  Authority to command is meaningless without the ability to enforce those commands through consequences. (For example, part of fearing God and accepting the sovereignty of heaven is the fear of punishment).  We recognize that this is subject to further understanding, but we chose to stop at this point. For us, the new idea was that a King's execution of an individual can be viewed as kibbush, a term normally thought of in the context of warring nations.

The complete understanding of how halacha structures the extrajudicial system of justice and the full scope and limitations of the King in this system, are valid paths of inquiry.  We hope that anyone with the desire to pursue this fascinating path, finds the previous posts helpful guides into the area.  (We suggest looking at the Rambams and sources quoted by the commentaries in the third and forth chapters of Hilchos Melachim as a next possible step).  Our path led us in a different direction (into exploring the rights of the King under the powers of war), but this is certainly a choice that is best left to one's own, subjective decision.

Tuesday, February 28, 2012

It's Good To Be King (Part 4:More Svara)

According to our second interpretation of Rashi (the Rambam), the TK and RY are arguing in every case of execution by the King.  Their machlokes even encompasses cases of crimes which are not directly against the King, such as murderers with one witness. It would seem difficult to apply the same svara here.

The position of RY is essentially the same as the first way to understand Rashi (M'eiri).  All people executed by the King come under the דין משפט of the King.  Therefore, the heirs inherit the estate.

The position of the TK is where the M'eiri and the Rambam disagree.  According to the M'eiri (as explained in the previous post), the TK fundamentally agrees with RY, that דין משפט carries with it the powers of execution as is evidenced when the King executes the murderer.  Their dispute is over how halacha views the sin of sedition.

According to the Rambam however, the TK disputes the very idea that the דין משפט of the King includes the power to execute.  Only a regular court may put someone to death.  All the people who are killed by the King are conquered under the דין כיבוש, even murderers.

How can murderers be treated as traitors to the King, and therefore be subject to כיבוש?  The answer is that by murdering one of the King's subjects, the murderer is undermining the order and justice of the entire kingdom.  The Rambam explains (hilchos rotzaoch 4:9) why only a murderer is killed by beis din under certain conditions and no other sinner:
ואין עושין דבר זה לשאר מחוייבי מיתת בית דין אבל אם נתחייב מיתה ממיתין אותו ואם אינו חייב מיתה פוטרין אותו שאע"פ שיש עונות חמורין משפיכות דמים אין בהן השחתת יישובו של עולם כשפיכות דמים  אפילו ע"ז ואין צריך לומר עריות או חילול שבת אינן כשפיכות דמים
Murder destroys the kingdom like no other crime.  The murderer is viewed not simply as a criminal, but as someone attacking the kingdom itself.  Through the powers of  כיבוש, the King kills the murderer and is entitled to the estate as spoils of war.

Monday, February 27, 2012

It's Good To Be King (Part 3:Svara)

Following from the methodology points from the last post, we will start by giving a svara for the machlokes according to the first interpretation of Rashi (and that of the M'eiri). Namely, we are assuming that the TK and RH are only arguing about the rebel's estate, but agree that the heirs inherit the estate of a murderer with one witness.

The Rambam ends the forth chapter of hilchos melachim by saying:
שאין ממליכין מלך תחלה אלא לעשות משפט ומלחמות. שנאמר ושפטנו מלכנו ויצא לפנינו ונלחם את מלחמותינו
There are two fundamental duties of the King in the Torah's system; (i) mishpat, or extrajudicial justice. (This is a separate system from the ordinary laws enforced by beis din, and is designed by the King to produce a just and orderly society. This system has it's own laws, procedures, and punishments.  See the story of Shlomo for one example); and (ii) milchama, as head of the military.  The various powers given to the King stem from his two roles of Judge and Head of Military.

RY maintains that sedition is judged as a domestic crime against the King and comes under the דין משפט, the powers of the King in his domestic role as an extrajudicial justice.  Just like the King can execute a murderer based upon circumstantial evidence in this role, so too, he can execute someone who rebels against him and undermines the authority of the monarchy.

According to RY, the estate of those executed by the King is inherited by their heirs, just like those executed by beis din with regular judicial powers.  The fact that the death sentence derives from an extrajudicial authority has no bearing on the monetary rights of the estate.

The TK argues that sedition is judged as a foreign attack against the kingdom and come under the דין כיבוש, the powers of war (see Rambam at the end of the last post).  When a person rebels against the King, he is removing himself from under the sovereignty of the King and establishing himself as his own sovereign.  He is now treated as an enemy combatant.  He is not executed.  He is conquered.

When the King conquers another kingdom he has the monetary rights to the treasury of the foreign kingdom's King (Rambam 4:9).  The rebel is the king of his own little kingdom and his estate is his little treasury.  Therefore, according to the TK, when the King conquers the rebel, the King has rights to the estate.

The above svara is in accordance with our first interpretation of Rashi (and the M'eiri) that the machlokes is only by a rebel, whose sin is against the King. How can we define the machlokes according to the second interpretation of Rashi (and the Rambam) which extends the machlokes to all those killed by the King, even the murderer with one witness?

Sunday, February 26, 2012

It's Good To Be King (Part 2: Questions and Methodology)

Some methodological pointers in approaching a sugya

1. Look for clues
Discovering clues in a sugya can often point you in a good direction. One clue that this gemara gives us is that it tells us that both the Tanna Kamma (TK) and Rabbi Yehuda (RY) agree that when a regular court puts someone to death, their estate is inherited by their heirs.  This would imply that this somehow helps in understanding their positions. How so?

2. Formulate questions
Fundamental questions can often open up paths towards developing insight.  In this instance, we can ask why the rebel against the king is subject to a death sentence in the first place.  The only mitzvah he could have possibly violated, it would seem, is the positive commandment to appoint a king.  However, we know that there is no positive commandment whose violation carries with it a punishment of death. What then is the basis for his execution by the king?

3. Find the easier side
In approaching a machlokes, sometimes it is a helpful starting point to determine which side  makes more sense intuitively, and then to ask specific questions on the other side.  In this case, RY seems like the simpler position. According to the TK, why should the person's estate be surrendered upon execution by the King? What did his heirs do wrong? Moreover, why should the TK distinguish between someone executed by the courts or by the king?  Furthermore, the King doesn't even have the power of hefker - taking an individual's money is viewed as robbery. (This is to be contrasted to beis din, where we do say hefker beis din hefker.) So how can he have the right to take the estate?

4. Look at the Rambam
In approaching a new area or a difficult problem, it is often useful to look at how the Rambam formulates a halacha. Especially since he holds like the more difficult position of the TK, we turn to the Rambam in Hilchos Melachim 4:9
ז  [ט] כל הרוגי המלך, ממונן למלך; וכל הממלכות שכובש, הרי אוצרות המלכים למלך.  ושאר הביזה שבוזזין--בוזזין ונותנין לפניו, והוא נוטל מחצית בראש; ומחצית הביזה, חולקין אותה.  כל אנשי הצבא ביחד עם העם היושבין על הכלים במחנה לשומרה, חולקין בשווה--שנאמר "כי כחלק היורד במלחמה, וכחלק היושב על הכלים--יחדיו יחלוקו
What insight can we take from this Rambam?

Thursday, February 23, 2012

It's Good To Be King (Part 1: Facts)

The gemara in Sanhedrin 48b states:
ת"ר הרוגי מלכות נכסיהן למלך הרוגי ב"ד נכסיהן ליורשין ר' יהודה אומר אף הרוגי מלכות נכסיהן ליורשין
There is a dispute about who "inherits" the estate of someone executed by the king (harugei malchus).

Tanna Kamma (TK): Their estate goes to the king.
Rabbi Yehuda (RY): Their estate is inherited by their heirs.

Both positions agree that someone executed by beis din, the courts, is inherited by his heirs.

Who is harugei malchus referring to? There are two general classes of people who are executed by the King:
(a) those who rebel against the King;
(b) those who commit murder under conditions under which the beis din cannot execute them (i.e., only one witness).

Which of these classes does harugei malchus refer to? 

Rashi defines harugei malchus as those who are chaiyev meisa (have a death sentence) to the king, i.e., they rebelled against the king.
שנתחייבו מיתה למלכי ישראל כגון שמרדו בו דכתיב (יהושע א) כל איש אשר ימרה את פיך וגו
This would seem to be limiting this halacha to those of type (a) and not those of type (b). This is the way the M'eiri at the of the sixth chapter in Sanhedrin learns the sugya.

It is also possible that Rashi is just choosing the paradigmatic case of sedition, type (a), but means to include all cases where the king executes someone, even type (b). This reading may be supported by the word "כגון", and would appear to be the Rambam's position.

What is the svara (conceptual underpinning) for the disagreement bewteen the TK and RY according to the 2 ways of understanding Rashi?

It is a short machlokes with very little information to go on. What other information should we seek out to help us? What kind of questions should we raise to approach a better understanding of their disagreement?

Wednesday, February 22, 2012

Grounds for Divorce? (Part 5: Philosophy)

Once we have defined the machlokes as well as we could, it’s worthwhile to address an issue that bothered us earlier.  Rabbi Akiva seems harsh.  Divorcing your wife for a prettier girl, intuitively seems like something the Torah should not condone.  What, then, is his rationale?

It’s important to understand according to all three positions, what the Torah is doing by establishing criteria for the permissibility of divorce.  The Torah is not setting a moral standard and the three way machlokes is not about who has the lowest moral standards.  

The Torah is setting up the stam, or basic, definition of commitment when two people are getting married.  Morality demands that the two people maintain their commitment to something they both voluntarily agree to.  If they explicitly state it’s a short term marriage, there is nothing wrong according to anyone, with quick divorce. (In fact, Rav and Rav Nachman would regularly do that when they traveled).

It is similar to the laws the Torah sets up for a שואל, a borrower (i.e. responsibilities to replace the object even if it breaks through no fault of his own).  The lender and borrower can stipulate different terms, but it is convenient and helpful that the Torah defines for us a standard law of responsibilities and obligations, that is both fair and sensible.  In general, two people have in mind whatever the Torah’s standard is.

The same is the case for our machlokes by divorce. In general, when two people commit themselves to a marriage, they have in mind whatever the Torah set up as the basic case.  They are free  to stipulate any difference.  Morality is to keep to whatever they voluntarily agree to. The 3 positions are about what the standard assumptions of commitment in marriage are.

It is beyond our abilities to definitively say why the Torah chose the basic case that it did or which system of divorce leads to the best society.  There are clear advantages to Rabbi Akiva’s position (permitting a man to end an unhappy marriage even if the women has not failed in her marital duties, especially before they start having children), as well as clear disadvantages (as evidenced by the breakdown of family structure in American society, though arguably, that would not occur in a Torah based society).

It’s beyond our abilities to definitively say, but sometimes it’s interesting to speculate for a few minutes anyway.

Tuesday, February 21, 2012

Grounds for Divorce? (Part 4: More Svara)

We determined last time that the machlokes between Beis Shammai and Beis Hillel revolves around determining what constitutes a failure of a woman to uphold her end of a marriage agreement and thereby justifying divorce. In order to proceed further, we need a little background on the Torah’s structure of marriage.

The essence of marriage, d’oreisa, is an institution made for the purpose of the mitzvah of having children.  (The Rambam in the koseres of Hilchos Ishus defines the commandment of marriage as “to acquire a woman to have children from”).  The prohibition of a woman committing adultery directly relates to the essence of the marriage.  How would the man know if his children were truly his, if his wife slept with other men? Thus an adulterous woman certainly breaks her end of the marriage agreement.

The rabbanan instituted secondary aspects of a marriage called tana’ai kesuva, or conditions of the marriage contract.  These include a woman’s obligation to cook, among other obligations of the couple to each other. Thus, a woman who regularly burns her husband’s food is failing in these secondary obligations of marriage.

With this introduction, perhaps we can explain the machlokes.  Beis Shammai maintains that a man and woman only commit themselves to the d’oreisa essence of marriage. The rabbinically ordained secondary obligations merely result from the commitment.  They are not part of the commitment itself. Since she only commits to the primary role of having his children, only if she commits adultery is she considered to have violated their agreement, thereby allowing the man to divorce her. Burning food is not valid grounds for divorce.

Beis Hillel disagrees and maintains that once the rabbanan instituted secondary responsibilities in a marriage, the practical reality of the marriage commitment changes.  The commitment that each party makes to each other is now expanded to include other responsibilities as well (such as cooking).  Thus, if the wife fails in her role as a cook, that too constitutes a failure in the marriage agreement and is grounds for a divorce.

There will be a final post that will deal with an issue that has come up over the course of this sugya.
Rabbi Akiva seems very harsh.  Divorcing your wife for a prettier girl intuitively seems like something the Torah should not condone.  Is this a good question or a bad question? Is it a halachik question or a philosophical question? Or something else? We're interested to hear your comments.

Saturday, February 18, 2012

Grounds for Divorce? (Part 3: The Svara)

We’ll start off by trying to understand the difference between Rabbi Akiva and the other two positions.

Since we determined last time that the problem of an unjustified divorce is based upon his commitment to her, let us analyze the nature of this commitment and of commitments in general. Conceptually, there are two different types of commitment:  
(a) a commitment to the integrity of the maaseh (act) one is doing;  
(b) a commitment as a binding obligation that is created when one commits to something (viewing a commitment
as a cheftza, an abstract entity).

For example, consider one who buys an item from a store with a fairly liberal return policy. (This policy allows you to return the item under any conditions, including finding a different item that you like better). Despite the policy, one who buys from such a store must still have the good will of intending to keep the item.  If he buys it with the intent of returning it after using it once, that would violate the good will assumption between the parties in the very nature of the act of purchase.  He is being deceitful in that he is presumed to be purchasing the item, when he is in truth borrowing it. (Note: This example is for illustration of an idea - whether a particular store allows or does not allow for such a behavior, and certainly cannot prove and enforce it, is not relevant). The commitment of a buyer in this store is of type (a) - a commitment to the integrity of his action of buying. Assuming he bought it in this proper manner, there is no lasting commitment to keep the item in the future. He has full rights of return.

A different store might have a more stringent return policy. (This policy only allows you to return the item if it is defective).  Buying the item in this store creates a lasting commitment on your part, to the purchase of this item (type (b) commitment).  Only if the item fails to meet the initial assumptions of the purchase is it permissible to return it.

With this introduction, let us turn to our machlokes. Rabbi Akiva understands marriage as demanding (a) - a commitment to the integrity of the act itself.  If one marries a woman, he must be sincere in his intent of a life-long relationship.  If he has in mind (without her knowing) to divorce her soon thereafter, he is acting disingenuously and is in violation.  However, according to RA, no underlying commitment is created by his actions.  If he finds a prettier girl after he is married, such that he is no longer happy in the marriage, he is free to end the marriage with a divorce. (It would seem that, for better or worse, American society has “paskined” like RA). This explains why any seemingly trivial reason suffices for RA. Any reason that comes about after the marriage started, shows that the act itself of getting married was a genuine act.

In contrast, Beis Shammai and Beis Hillel both maintain that getting married creates (b) - an underlying commitment to stay married for life, unless the woman fails to uphold her end of the deal.  The machlokes between them is about what constitutes such a failure.

It is worth pausing here to see if we are able to define the disagreement between Beis Shammai and Beis Hillel in light of this new framework.

Wednesday, February 15, 2012

Grounds for Divorce? (Part 2: Questions and Methodology)

In approaching this machlokes, we have to begin by answering one question: why can’t a man divorce his wife simply because he wants to? There seems to be a premise that a man needs a good excuse to divorce his wife. What is the reason for this premise? Without an answer (or at least a general approach) to this question, it seems premature to try to define the various positions.

Two possible approaches present themselves:

(a) the Torah’s idea of the institution of marriage doesn’t allow one to just end it (maybe because of the kedusha of kiddushin...).   It demands a certain level of commitment and prohibits termination without good justification.

(b) intrinsically the Torah has no problem with just ending a marriage. However, it is an injustice against the woman to just get divorced without a good reason, being that she entered the marriage assuming a commitment (and this is the standard assumption of a marriage).

How can we resolve which of these two approaches is correct? Which way we decide will greatly impact the type of svara we give to explain the various positions. One way to choose a direction is to find a nafka minah (practical difference) between the two approaches, and then to check it against the facts. A direct nafka minah is if the woman agrees to the husband’s plan of an unjustified divorce. According to approach (a), her agreement is irrelevant - it is still against to the Torah’s idea of marriage to do this. According to (b), if she agrees, then there is no problem.

The gemara in yevamos 37b and the Rambam in Issurei Biah 21:28 supplies us with an answer.  It is totally permitted for a man to marry a woman for a short period of time, provided that he tells her in advance (Rav and Rav Nachman used to do it!). We can conclude that the prohibition to break off the marriage is clearly based upon it being a sin against the woman. In further support of this conclusion, the same gemara and Rambam clearly indicate that getting married with an undisclosed plan to get divorced is a crime against the woman.

Thus, it seems that we  must go with possibility (b). One cannot divorce a woman with no valid reason because it is violating his commitment to her. The area of the machlokes is the determination of the conditions under which it is legitimate to end a marriage without breaking his commitment to her. With this step, we have determined a framework within which we can analyze each of the positions and determine the basis for their machlokes.

Based upon this step, another question emerges. How do we understand Rabbi Akiva’s position? Does he (i) agree with the premise that it is a sin against the woman to end a marriage with no good reason, but holds that finding a prettier woman is a good enough reason? Or does he (ii) argue on the premise that one needs a good reason.

Both of these approaches seem difficult. For (i), if finding a prettier woman is a good reason, what is not a good reason?  Approach (ii), however, makes the machlokes between Rabbi Akiva and the others very fundamental and difficult to define  (In general, it is a good idea to assume that arguments between Rabbis are on a particular detail than to assume that they argue on a fundamental premise).  In formulating a svara, we will have to decide how to interpret Rabbi Akiva’s position in light of this problem.

Hopefully, this post provides some further direction to formulate a svara for this three-way machlokes.

Monday, February 13, 2012

Grounds for Divorce? (Part 1: The Facts)

The mishna on Gittin 90a states:
בית שמאי אומרים לא יגרש אדם את אשתו אלא אם כן מצא בה דבר ערוה שנאמר כי מצא בה ערות דבר ובית הלל אומרים אפילו הקדיחה תבשילו שנאמר כי מצא בה ערות דבר ר' עקיבא אומר אפי' מצא אחרת נאה הימנה שנאמ' והיה אם לא תמצא חן בעיניו
Under what conditions is it permissible for a man to divorce his wife? (The divorce works, regardless of it's permissibility).
Beis Shammai: Only if he finds ervas davar (some sexual misconduct - she sleeps with another man...)
Beis Hillel: Even if she burns his food
Rabbi Akiva: Even if he finds a prettier woman

The gemara explains that this dispute is based upon a reading of the following verse in Devarim 24:1

כִּי-יִקַּח אִישׁ אִשָּׁה, וּבְעָלָהּ; וְהָיָה אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו, כִּי-מָצָא בָהּ עֶרְוַת דָּבָר--וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ
When a man takes a wife and is intimate with her, and it happens that she does not find favor in his eyes because he discovers in her an  ervas davar, and he writes for her a bill of divorce and places it into her hand, and sends her away from his house
Beis Shammai explains that the passuk clearly specifies that the grounds for divorce are ervas davar.

Beis Hillel argues that since the Torah did not just say “ervah” but “a matter of ervah”, we can conclude that a man can divorce because of (a) ervah or (b) a different matter.

Rabbi Akiva argues that the verse should be read as choices: either (a) “she doesn’t find favor in his eyes” or (b) “he finds in her an ervas davar”. Therefore he can get divorced even if she doesn’t find favor because he finds a more beautiful woman.

What is the svara (conceptual underpinning) for this disagreement?

More significantly, our first step should be trying to approach the problem methodically. What questions can we ask that will help guide us towards a svara?