Religious Vows and Moral Conscience

Promises to Keep

Sometimes a solemn promise to God undermines moral obligations to friends and family. The rabbis of the Mishnah found clever ways to circumvent such dilemmas

or many modern Jews, one of the most embarrassing traits of Fhalachah is its copious use of legal fictions. The best-known legal fictions include the sale of hametz to a non-Jew before Pesach, or the Shabbat elevators that are widely used by Orthodox Jews (and have lately been challenged, as reported in the press worldwide, by the ultra-Orthodox leader Rabbi Yosef Elyashiv.)

{By ISHAY ROSEN-ZVI

66 | Winter 2010 Promises to Keep /// Ishay Rosen-Zvi

Sometimes, such inventions may seem God, or in request of future assistance. to be no more than cultural oddities that Thus, for example, Jonah the Prophet have evolved over the centuries. But far cries out from the bowels of the whale: “But from being a novelty, legal fictions go back I with the voice of thanksgiving will sacrifice to the earliest days of halachic discourse, to thee; what I have vowed I will pay.” and reflect a profound dialectic between (Jonah 2:9) The Torah also recognizes other universal values and Jewish tradition. The practices, such as the ascetic restrictions challenge this dialectic creates is formidable, one imposes on oneself in order to be as can be seen in the case of religious vows consecrated to God, or to repent of sin. The (nedarim) – solemn utterances that may turn Torah calls these “every sworn obligation of relations with friends and relatives into a self-denial.” (Numbers 30:14) legal minefield. Regardless of type, however, the violator of a vow becomes accountable before God. Traditions of the Elders This may easily lead to thorny complications, especially when vows are leveled against When a person takes a vow, he or she is other people, as the following ruling from making a pledge to the Almighty to do, or the Mishnah demonstrates: refrain from doing, a certain thing. The If a man is forbidden by vow to have any Torah stipulates: “When a man vows a vow to benefit from his fellow, and he had naught the Lord, or swears an oath to bind himself to eat, his fellow may go to the shopkeeper by a pledge, he shall not break his word; he and say, “So-and-so is forbidden by vow shall do according to all that proceeds out of to have any benefit from me, and I do not his mouth.” (Numbers 30:3) The Hebrew for know what I shall do”; then the shopkeeper “bind himself” – le’esor issar – comes from the may give food to the one and take payment same root as “prohibition” (issur) and “prison” from the other. (Nedarim 4:7) (beit ha’assurim), implying that breaking the bond of a vow is like a rebellious prisoner The Mishnah discusses a case of a man breaking his chains. who took a vow, probably following a quarrel, that he would not let his friend benefit from Since any overt violation his property. But the friend has met with financial difficulties, and now the man who of the vow would took the vow cannot help him. The Mishnah destabilize the halachic therefore establishes a bypassing rule that allows the vowing man to help his friend mechanism, the Mishnah without breaking his vow. This is done by proxy: the vendor gives the needy friend solves the problem with groceries and takes payment from the a fictitious intervention. vowing man, without vendor and payor making any official agreement or promise Divided into several types, vows may between them. concern a person’s relationship with God Since any overt violation of the vow (repentance for sin, making a thanksgiving would destabilize the halachic mechanism, offering, etc.), or a person’s relationship with the Mishnah simply solves the problem with his fellow man. Typically, biblical nedarim a fictitious intervention, whereby the vendor have to do with hekdesh (“dedication”) – vows “voluntarily” decides to give groceries to the that one makes to donate property to the needy man, and is “incidentally” compensated Tabernacle or Temple, as a gift of thanks to for them by the vowing man.

HAVRUTA | 67 How should we understand this peculiar from their filial duties. They allow the transaction? Why did the rabbis authorize transgression of the commandment of such obvious manipulation in order to let honoring one’s father and mother by backing a person support a friend suffering the a son who has vowed that his parents not disgrace of poverty? What religious and benefit from his assets. social premises underlie it? Being its laconic But how is this argument related to the and succinct self, the Mishnah does not Pharisee complaints? After all, they referred reveal to us its ideological grounds. We to washing hands, not to vows. The key to this therefore need to turn to an unconventional question lies in the expression, “tradition of parallel source for insight into this question: the elders” that the Pharisees invoke in their the Book of Mark. question to Jesus. These “traditions” are Since the earliest layers in the Mishnah halachot that do not appear in the Torah, but probably date from around the turn of the are a practiced tradition. first millennium CE, the New Testament In describing the different Jewish sects can often shed light on the historical roots in his The Antiquities of the Jews, the ancient of halachic discourse. In Mark 7, we find an historian Josephus observes: argument between Jesus and the Pharisees [T]he Pharisees have delivered to the after the latter caught several of his disciples people a great many observances by eating without having first washed their succession from their fathers, which are hands. The Pharisees accost the master and not written in the law of Moses; and for ask him: “Why do your disciples not live that reason it is that the Sadducees reject according to the tradition of the elders, but them and say that we are to esteem those eat with hands defiled?” (Mark 7:5) In his observances to be obligatory which are in reply, Jesus sidesteps the question (to which the written word, but are not to observe he will refer later, asserting that, “there is what are derived from the tradition of our nothing outside a man which by going into forefathers… (Antiquities 13:297)* him can defile him; but the things which come out of a man are what defile him.” Mark 7:15) Instead, he brings up an entirely “You have a fine different issue: vows. way of rejecting the And he said to them, “You have a fine way of rejecting the commandment of God, in commandment of God, order to keep your tradition! For Moses in order to keep your said, “Honor your father and your mother”; and, “He who speaks evil of father or tradition!” (Mark 7:9) mother, let him surely die”; but you say, “If a man tells his father or his mother, This account, written some sixty years What you would have gained from me is after Jesus’s death, dovetails with what we read ‘Korban’ (that is, given to God) – then you in Mark. The Pharisees’ rather hostile question no longer permit him to do anything for to Jesus was based on practices originating in his father or mother, thus making void the ancient customs and not the Torah, and Jesus word of God through your tradition which is seizing this opportunity to critique the you hand on. And many such things you general Pharisee approach to tradition. do.” (Mark 7:9–13)

Jesus argues that the Pharisees are * The Works of Josephus, translated by William Whiston (Peabody: Hendrickson using vows in order to exempt themselves Publishers, 1987).

68 | Winter 2010 Promises to Keep /// Ishay Rosen-Zvi

The prohibitive vow we have seen in People took vows that prohibited their Tractate Nedarim was such an innovation property to others, and especially to people of the post-biblical period. These were vows who depended on them, such as their that do not dedicate the vowing person’s relatives. Sometimes they did so in anger or property to the Temple, but only prohibit revenge, and sometimes it was a calculated its use as if it were dedicated. In the Second attempt to evade social obligations. Temple period, prohibitive vows probably In the case of Jesus’s story, it would seem “Jesus and the Pharisees at the Temple” (Luke 2). served two main purposes: asceticism that these were old parents relying on their Etching by Alexandre (denying oneself permitted pleasures), and son, who was looking for a way out of the Bida, 1874. social sanction (prohibiting something one considerable financial burden they imposed. owns to others). But since he cannot simply shake off this

HAVRUTA | 69 70 | Winter 2010 Promises to Keep /// Ishay Rosen-Zvi

duty, he prohibits them from benefiting from his property with a vow. We learn from Mark 7, however, that this vow was no minor matter. The Pharisees believed that the vow had a broad effect, meaning that the son could not give his parents anything at all from his property, not even the smallest gift, if he changed his mind later on. In the Pharisee view, the power of the vow – which vests the decision with the status of hekdesh – is so great that it supersedes his filial duties. Violating a vow was indeed one of the severest transgressions in antiquity, both in the Bible and in post-biblical Judaism. We need only recall the horrible fate of Achan, who was stoned to death for taking for himself gold and silver, pillage from Jericho, which had been consecrated to God (Joshua 7). Jesus, on the other hand, believes that the duty to honor one’s parents supersedes the vow. The Pharisees’ insistence on the vow’s sanctity serves as evidence, in his view, for their distorted system of values. Not only do they prefer the ancestral tradition of the prohibitive vow – which, as we have seen, is not a biblical practice – to a hallowed Torah commandment. They are using this invented tradition to promote their own self-interest at the expense of needy family members, violating one of the Ten Commandments as well as ethical common sense.

The Preservation of Friendship Where does the Mishnah stand on this debate? Does it perpetuate Pharisee tradition, or support Jesus’s ethical critique? It does both – or to be more accurate, neither. Let us look at a ruling in Tractate Ketubot that discusses vows in marital relationships: If a man vowed that his wife should derive no benefit from him [and the vow was] for thirty days, he must appoint a guardian to care [for her upkeep]; if for longer, he must Sale of hametz to a send her away and give her her ketubah. gentile, Bnei Brak, 2008. (Ketubot 7:1) Photo by Shby.

HAVRUTA | 71 The husband must provide for his wife, him benefit from his property), proposing and he may not be exempted from this duty. resourceful legal devices that sometime But what happens when he has taken a vow border on the bizarre. In modern society, denying her benefits from his property? depriving a friend of material benefit The Mishnah determines that his vow typically leads to the termination of the stands, hence the husband may not provide relationship. But the Mishnah invests for his wife; yet the marital duty to be her great efforts in enabling the relationship provider remains intact. Once more, we see to continue, taking into consideration the the Mishnah opting for a proxy to resolve impulsive motivations that had led to the the clash between contradictory precepts: a imposition of the irreversible vow in the guardian will provide for the wife on behalf first place. of her husband. But such an arrangement Thus, for example, the Mishnah rules cannot last for long, and therefore if the that any person who denied his friend husband denied his wife from benefiting from enjoying his property may teach him from his property for more than thirty days, “midrash, halachah and aggadot,” but “shall he is under duty to divorce her and give her not teach him Scripture.” (Nedarim 4:3) The the amount prescribed in her ketubah. reason for this distinction between the oral Torah and the written Torah is explained by The Mishnah constructs the sage Shmuel in the Babylonian Talmud: “Our Mishnah [Nedarim 4:3] speaks of an entire system of a place where wages were charged for creative solutions in [teaching] Scripture but they did not charge for [teaching] midrash.” (Nedarim 36b) That order to care for both is, the Mishnah is referring to a reality in tradition and ethics. which schoolteachers tutoring Scripture to children took wages, whereas study at the beit midrash was offered without charge. Returning to Jesus’s dispute, we find that Therefore, teaching Scripture has financial in the eyes of the Mishnah both parties are value, and if the vowing person should teach in the right: the Pharisees who claim that a Scripture to the friend affected by the vow, vow is a binding obligation that cannot be he would be breaking his own vow. On the undone, and Jesus who claims that such a other hand, oral Torah is taught without vow cannot make social duties disappear. charge and therefore does not constitute The Mishnah’s premise that vow and violation of the vow. social duty are equally binding leads it In the same way, the Mishnah rules that to construct an entire system of creative the vowing person may cure the denied friend solutions in order to care for both “cure of the soul but not cure of mammon,” tradition and ethics, custom and biblical that is, he may take care of the person commandment. Therefore, the husband himself but not his livestock (cure of mammon must ultimately pay his wife the amount = veterinary treatment). The halachot that prescribed in her ketubah and divorce her; follow are a classic of Jewish scrupulousness: the vowing man in Nedarim may help his “He may bathe with him in a large tub but not friend through a vendor without breaking in a small one; and he may sleep with him his vow. in one bed. R. Yehudah says: in hot weather, In fact, two whole chapters in Nedarim but not in the rainy season, since then he (4–5) address the issue of “mudar hana’ah would benefit him.” (Nedarim 4:4) He who me-havero” (a person whose friend denies bathes in a small bathtub or sleeps in a small

72 | Winter 2010 Promises to Keep /// Ishay Rosen-Zvi

bed makes his friend warm, which is worth wedding banquet, he gave the banquet (and money (especially in a world where heating the property where it was held) as a gift to was expensive and difficult to obtain). his friend. The friend was well aware that We must recall that we are not only this gift was fictitious, and therefore said, discussing marital relations or parent-child “If they are mine, then they are dedicated relations, whose duties are defined in the to Heaven.” The stunned son told his friend, Torah but also purely voluntary relations. “I did not give you what is mine that you The Mishnah asserts unequivocally that a should dedicate it to Heaven,” exposing the vow cannot prevent one from providing for “secret” that this was a fictitious handover, a friend in need, even if he is not bound by a in order to bypass the vow. To that, the friend Ishay Rosen-Zvi, a halachic duty to do so. replied: “You did give me what is yours only senior fellow at the that you and your father might eat and drink Shalom Hartman The exhaustive (and and be reconciled one with the other, and Institute, is a senior that the sin should rest on my head.” lecturer in Tel exhausting) halachot The Mishnah learns from this strange Aviv University’s concerning vows case that the gift one gives to one’s friend Department of in order to bypass the vow must be genuine, Hebrew Culture, exemplify just how and thus given unconditionally. But we where he teaches complex and confusing may also learn from this case about the Talmudic literature seriousness in which vows were taken. The and culture. His book rabbinic law can be. friend is afraid that if he goes along with The Rite that Was Not: this halachic ploy, he would be culpable for Temple, Midrash and Gender in Tractate The rabbinic conception of social the transgression it entails. If there is a game Sotah was published relations that emerges from these halachot here, we must acknowledge that it is a very in Hebrew by Magnes raises interesting thoughts when placed serious game, that when not played right Press in 2008, and next to our social conventions. While money may have very dangerous consequences. And is forthcoming in and property are a fundamental aspect yet its players are willing to stretch the rules English translation of many close human relationships, these ad absurdum for the sake of preserving it. from Brill Press. relationships may endure even when the The exhaustive (and exhausting) halachot material element is removed. Paradoxically, concerning vows exemplify just how the constraints that vows impose on these complex and confusing rabbinic law can be. relationships may end up liberating them: if The powerful attachment to a tradition of I choose to keep teaching my friend midrash obscure origin represents a formidable in the shadow of a vow that denies him challenge to rabbis who seek to reconcile it with material benefits (and he continues to study ethical considerations of the first degree: filial with me), could there be a better expression duty, fraternal care and marital obligations. of our enduring friendship? In the end, their balancing act exposes the vows themselves as fictions: in light of all the available bypasses, one cannot truly consider A Serious Business such vows as inviolable pledges to God. The halachah concluding the mishnaic A vow may remain intact formally, but all discourse on prohibitive vows (Nedarim parties concerned know that its restrictions 5:6) takes the term “legal fiction” to a whole can, under certain circumstances, be new level. It tells of a man, about to marry moderated. The implications for our own off his daughter, who denied his own father volatile time, when pledges made cannot any benefits from his property. In order for always be fulfilled, are a subject for intriguing the son to be able to invite his father to the conversation.

HAVRUTA | 73