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The question of studying halakha vs. telling the story at Seder Pesach influences the way we understand our own obligation to know and study the halakha. It is clear that the halakha tells us to tell the story and does not tell us to study the halakhot. Based on the discussion of the four sons in the Haggadah, this would seem to identify us as the תם, who doesn’t have sophisticated questions of law and therefore is satisfied with story. The version of the four sons however, in the yerushalmi tells us that we’re actually the חכם. Despite our interest in sophisticated questions of law, what we need to be studying is stories, and it is the טיפש who needs to be studying law. Considering that everyone, even great חכמים tell the story on Pesach, it seems that the halakha agrees with the Yerushalmi. That being the case, we should take that into consideration and learn about the contexts and the stories that surround the halakha, as discussed in the essay Nomos and Narrative by Robert Cover and not be satisfied with simply knowing what to do.
|וַאֲפִילוּ כֻּלָּנוּ חֲכָמִים, כֻּלָּנוּ נְבוֹנִים, כֻּלָנוּ זְקֵנִים, כֻּלָנוּ יוֹדְעִים אֶת הַתּוֹרָה, מִצְוָה עָלֵינוּ לְסַפֵּר בִּיצִיאַת מִצְרַיִם. וְכָל הַמַּרְבֶּה לְסַפֵּר בִּיצִיאַת מִצְרַיִם הֲרֵי זֶה מְשֻׁבָּח.
מַעֲשֶׂה בְּרַבִּי אֱלִיעֶזֶר וְרַבִּי יְהוֹשֻעַ וְרַבִּי אֶלְעָזָר בֶּן עֲזַרְיָה וְרַבְּי עֲקִיבָא וְרַבִּי טַרְפוֹן שֶהָיוּ מְסֻבִּין בִּבְנֵי בְרַק, וְהָיוּ מְסַפְּרִים בִּיצִיאַת מִצְרַיִם כָּל אוֹתוֹ הַלַּיְלָה עַד שֶׁבָּאוּ תַלְמִידֵיהֶם וְאָמְרוּ לָהֶם: רַבּוֹתֵינוּ, הִגִּיעַ זְמַן קְרִיאַת שְׁמַע שֶׁל שַׁחֲרִית.
|And even if we all were wise, we were all perceptive, we were all experienced, and we were all learned in Torah, it would still be our duty to tell about the Exodus from Egypt. And the more one talks about the Exodus from Egypt, behold, this is praiseworthy.
It happened that R. Eliezer, R. Joshua, R. Elazar b. Azaryah, R. Akiva and R. Tarfon were reclining in B’nei Berak, and they were telling of the Exodus from Egypt all that night, until the students came and said to them, “Our masters, the time to read the morning Shema has come.”
Tosefta Pischa 10:11
|וחייב אדם לעסוק בהילכות הפסח אפילו בינו לבין עצמו בינו לבין ביתו בינו לבין תלמידו.
מעשה ברבן גמליאל וזקנים שהיו מסובין בביתו של בייתוס בן זונון בלוד והיו עסוקין בהילכות הפסח כל אותו הלילה עד קרות הגבר הגביהו מלפניהם ונוערו והלכו להם לבית המדרש.
|A person is required to engross themselves in the laws of Passover even by himself, even with his wife, even with his student.
It happened that Rabban Gamliel and the elders were reclining in the house of Baitus song of Zonon in Lod. And they were engrossed in the laws of Passover all that night until cockcrow. They lifted the tables from before them and shook themselves and went to the Beit Midrash.
- What is the difference between the sedarim described in the texts above? Which does our seder more resemble? Why have we chosen this model?
- How do each of these models fulfill the mitzvah of “And you shall tell your child on that day…”?
Mishna Pesachim 10:4
|מתחיל בגנות, ומסיים בשבח; ודורש מ”ארמי אובד אבי”, עד שהוא גומר כל הפרשה.||One begins with disgrace and finishes with praise; and interprets from “My father was a wandering Aramean,” until he completes the entire section.|
|חָכָם מָה הוּא אוֹמֵר? מַה הָעֵדוֹת וְהַחֻקִּים וְהַמִשְׁפָּטִים אֲשֶׁר צִוָּה יְיָ אֱלֹהֵינוּ אֶתְכֶם? וְאַף אַתָּה אֱמָר לוֹ כְּהִלְכוֹת הַפֶּסַח…
רָשָׁע מָה הוּא אוֹמֵר? מָה הָעֲבֹדָה הַזֹּאת לָכֶם? … וֶאֱמֹר לוֹ: בַּעֲבוּר זֶה עָשָׂה יְיָ לִי בְּצֵאתִי מִמִּצְרָיִם…
תָּם מָה הוּא אוֹמֵר? מַה זֹּאת? וְאָמַרְתָּ אֵלָיו: בְּחֹזֶק יָד הוֹצִיאָנוּ יְיָ מִמִּצְרָיִם, מִבֵּית עֲבָדִים.
ושֶׁאֵינוֹ יוֹדֵעַ לִשְׁאוֹל – אַתְּ פְּתַח לוֹ, שֶׁנֶּאֱמַר: וְהִגַּדְתָּ לְבִנְךָ בַּיוֹם הַהוּא לֵאמֹר, בַּעֲבוּר זֶה עָשָׂה יְיָ לִי בְּצֵאתִי מִמִּצְרָיִם.
|What does the wise child say? “What are the testimonies, the statutes, and the laws which the Lord our god has commanded you?” You tell him the laws of Passover…
What does the wicked child say? “What is this service to you?”…Tell him, “This is done on account of what the Lord did for me when I came out of Egypt.”…
What does the simple child say? “What is this all about?” Tell him, “It was with a mighty hand that the Lord brought us out of Egypt from the house of bondage.”
As for the child who does not know how to ask, you must begin for him, as it is said: “You shall tell your child on that day, saying, ‘This is on account of what the Lord did for me when I came out of Egypt.’”
Mechilta, Pischa, parasha:19
|מה העדות והח’ והמשפ’ וג’ ר’ אליע’ או’ מנין את’ אומ’ שאם היתה חבורה של חכמ’ או של תלמי’ חכמ’ צריכין להיות יושבין ועוסקין בהלכות הפסח עד חצות לכך נא’ מה העדות והחקי’ וגו’
||What are the testimonies, the statutes, and the laws etc. Rabbi Eliezer says, “How do you know that if a chabura is made up of wise people, or the students of wise people, they must sit and engross themselves in the laws of Passover until midnight? Thus it says, ‘What are the testimonies and the statutes, etc.’
- Based on the Haggadah and the Mechilta, what kind of person studies law? What kind listens to stories? According to the Mishna, which one are we? Is that flattering? If we see ourselves differently, can we do something else?
Talmud Yerushalmi 37d
|תני ר’ חייה כנגד ארבעה בנים דיברה תורה בן חכם בן רשע בן טיפש בן שאינו יודע לשאול.
בן חכם מהו אומר מה העדות והחקים והמשפטים אשר צוה ה’ אלהינו אותנו אף אתה אמור לו בחזק יד הוציאנו ה’ ממצרים מבית עבדים.
בן רשע מהו אומר מה העבודה הזאת לכם…אף אתה אמור לו בעבור זה עשה ה’ לי…
טיפש מה אומר מה זאת אף את למדו הלכות הפסח…
בן שאינו יודע לשאול את פתח לו תחילה.
|R. Hiyya taught: The Torah refers to four types of children; a wise one, a wicked son, a stupid one, and one who does not know how to ask a question.
What does the wise child say? “What are the testimonies, the statutes, and the laws which the Lord our God has commanded us?” You should tell him, “It was with a mighty hand that the Lord brought us out of Egypt from the house of bondage.”
What does the wicked child say? “What is this service to you?”…You should say to him, “This is done on account of what the Lord did for me when I came out of Egypt.”…
What does the stupid child say? “What is this all about?” You should teach him the laws of Passover…
As for the child who is unable to ask a question, you must begin for him.
- According to the Yerushalmi, which son needs to learn law? Which son needs to hear stories? Which one are we? Is that flattering?
- Does the value expressed in the Yerushalmi teach us anything about the way we need to relate to our own study of halakha in general? What is the point of the study of law?
Robert Cover, “Nomos and Narrative”, Harvard Law Review, 1983
|In this normative world, law and narrative are inseparably related. Every prescription is insistent in its demand to be located in discourse – to be supplied with history and destiny, beginning and end, explanation and purpose. And every narrative is insistent in its demand for its prescriptive point, its moral. History and literature cannot escape their location in a normative universe, nor can prescription, even when embodied in a legal text, escape its origin and its end in experience, in the narratives that are the trajectories plotted upon material reality by our imaginations…
The great legal civilizations have, therefore, been marked by more than technical virtuosity in their treatment of practical affairs, by more than elegance or rhetorical power in the composition of their texts, by more, even, than genius in the invention of new forms for new problems. A great legal civilization is marked by the richness of the nomos in which it is located and which it helps to constitute. The varied and complex materials of that nomos establish paradigms for dedication, acquiescence, contradiction, and resistance. These materials present not only bodies of rules or doctrine to be understood, but also worlds to be inhabited. To inhabit a nomos is to know how to live in it…
The normative universe is held together by the force of interpretive commitments – some small and private, others immense and public. These commitments – of officials and of others – do determine what law means and what law shall be. If there existed two legal orders with identical legal precepts and identical, predictable patterns of public force, they would nonetheless differ essentially in meaning if, in one of the orders, the precepts were universally venerated while in the other they were regarded by many as fundamentally unjust.
I must stress that what I am describing is not the distinction between the “law in action” and the “law in the books.” Surely a law may be successfully enforced but actively resented. It is a somber fact of our own world that many citizens believe that, with Roe v. Wade, the Supreme Court licensed the killing of absolutely innocent human beings. Others believe that the retreat from Furman v. Georgia has initiated a period of official state murder. Even if the horror and resentment felt by such persons fails to manifest itself in the pattern of court decisions and their enforcement, the meaning of the normative world changes with these events. Both for opponents of abortion and for opponents of capital punishment the principle that ”no person shall be deprived of life without due process of law” has assumed an ironic cast. The future of this particular precept is now freighted with that irony no less than with the precedents of Roe and Furman themselves.
Just as the meaning of law is determined by our interpretive commitments, so also can many of our actions be understood only in relation to a norm. Legal precepts and principles are not only demands made upon us by society, the people, the sovereign, or God. They are also signs by which each of us communicates with others. There is a difference between sleeping late on Sunday and refusing the sacraments, between having a snack and desecrating the fast of Yom Kippur, between banking a check and refusing to pay your income tax. In each case an act signifies something new and powerful when we understand that the act is in reference to a norm. It is this characteristic of certain lawbreaking that gives rise to special claims for civil disobedients. But the capacity of law to imbue action with significance is not limited to resistance or disobedience. Law is a resource in signification that enables us to submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify. The sense that we make of our normative world, then, is not exhausted when we specify the patterns of demands upon us, even with each explicated by Hercules to constitute an internally consistent and justified package. We construct meaning in our normative world by using the irony of jurisdiction, the comedy of manners that is malum prohibitum, the surreal epistemology of due process.
A legal tradition is hence part and parcel of a complex normative world. The tradition includes not only a corpus juris, but also a language and a mythos – narratives in which the corpus juris is located by those whose wills act upon it. These myths establish the paradigms for behavior. They build relations between the normative and the material universe, between the constraints of reality and the demands of an ethic. These myths establish a repertoire of moves – a lexicon of normative action – that may be combined into meaningful patterns culled from the meaningful patterns of the past. The normative meaning that has inhered in the patterns of the past will be found in the history of ordinary legal doctrine at work in mundane affairs; in utopian and messianic yearnings, imaginary shapes given to a less resistant reality; in apologies for power, and privilege and in the critiques that may be leveled at the justificatory enterprises of law.
Law may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined alternative – that is, as a connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative. Thus, one constitutive element of a nomos is the phenomenon George Stei’ner has labeled “alternity”: “the ‘other than the case’, the counterfactual propositions., images, shapes of will and evasion with, which we charge our mental being and by means of which we build the changing, largely fictive milieu for our somatic and our social existence.”
But the concept of a nomos is not exhausted by its “alternity”; it is neither utopia nor pure vision. A nomos, as a world of law, entails the application of human will to an extant state of affairs as well as toward our visions of alternative futures. A nomos is a present world constituted by a system of tension between reality and vision.
Our visions hold our reality up to us as unredeemed. By themselves the alternative worlds of our visions – the lion lying down with the lamb, the creditor forgiving debts each seventh year, the state all shriveled and withered away – dictate no particular set of transformations or efforts at transformation. But law gives a vision depth of field, by placing one part of it in the highlight of insistent and immediate demand while casting another part in the shadow of the millenium. Law is that which licenses in blood certain transformations while authorizing others only by unanimous consent. Law is a force, like gravity, through which our worlds exercise an influence upon one another, a force that affects the courses of these worlds through normative space. And law is that which holds our reality apart from our visions and rescues us from the eschatology that is the collision in this material social world of the constructions of our minds.
The codes that relate our normative system to our social constructions of reality and to our visions of what the world might be are narrative. The very imposition of a normative force upon a state of affairs, real or imagined, is the act of creating narrative. The various genres of narrative – history, fiction, tragedy, comedy – are alike in their being the account of states of affairs affected by a normative force field. To live in a legal world requires that one know not only the precepts, but also their connections to possible and plausible states of affairs. It requires that one integrate not only the “is” and the “ought,” but the “is,” the “ought,” and the “what might be.” Narrative so integrates these domains. Narratives are models through which we study and experience transformations that result when a given simplified state of affairs is made to pass through the force field of a similarly simplified set of norms…
- How would Cover relate to the texts above. Would he agree with the values embraced by the Haggadah (text 4) and the Mechilta or would he side with the Yerushalmi? Why? What does Cover demand from a “wise child”?
- What is the purpose of law according to this essay? What narratives need to be understood before you really can be said to understand the law?
- What implications does this have for our study of halakha? Where do we stand in understanding the law? What is most important for us to learn?
Shulchan Aruch, Orach Chayim 481:2
|חיב אדם לעסק בהלכות הפסח וביציאת מצרים ולספר בנסים ובנפלאות שעשה הקב”ה לאבותינו עד שתחטפנו שנה.
||One is obligated to engross oneself in the laws of Passover and the Exodus from Egypt and to tell of the miracles and wonders that The Holy One Blessed Be He did for our fathers until he is snatched by sleep.
- Based on what we’ve seen so far, is the ruling of the normative halakha pessimistic or optimistic about our standing with regard to the law? Do you agree? Are you entitled to disagree?
- Based on the Shulchan Aruch’s estimation of us, how should we be structuring our study of halakha throughout the year?