"Machshevet Ha-hafla'a:" The Philosophy of the Laws of Vows and Oaths
Sicha for Shabbat from the Roshei Yeshiva
Yeshivat Har Etzion
SICHA OF HARAV AHARON LICHTENSTEIN SHLIT"A
The Philosophy of the Laws of Vows and Oaths
Adapted by Yitzchak Barth
Translated by David Silverberg
During this past "zeman" we have learned Masekhet Shevuot, focusing particularly on the chapter dealing with "hafla'a," the laws of vows and oaths. In approaching the philosophy of this area of Halakha, it must be emphasized that we cannot dissociate our discussion from the halakhic details we have studied. This means that, first and foremost, we must consider the philosophy of hafla'a with the aid of the halakhot we examined in the regular shiurim.
Moreover, the desirability of hafla'a itself constitutes a halakhic issue. For example, the Shulchan Arukh rules at the beginning of Hilkhot Nedarim, "Do not accustom yourself to nedarim [vows]; whoever takes a neder - even if he fulfills it - is called evil and is called a sinner." Clearly, this ruling flows from the Mechaber's ideological outlook on nedarim and on the world of hafla'a in general.
In addressing hafla'a from a conceptual standpoint, one must distinguish between the results of hafla'a and the act of hafla'a. For example, Chazal express differing attitudes towards the institution of "nezirut" (the nazirite vow). While Rabbi Elazar Ha-kapar refers to the nazir as a sinner, Rabbi Eliezer calls him holy (Ta'anit 11a). Tosafot (Bava Kama 91b) even claim that a nazir is simultaneously both sacred and a sinner. In other contexts, too, Chazal refer to voluntary abstention from worldly pleasures as being sinful; for example, according to Shemuel, "Whoever observes a fast is called a sinner." It seems clear that the difference of opinion regarding the nazir reflects a broad ideological dispute regarding the place of abstinence and self-denial in avodat Hashem (the service of God). If so, then this debate relates to the RESULTS of the vow of nezirut, and we cannot derive any conclusions as to the desirability of the specific PROCESS of hafla'a. We will limit our discussion here to the halakhic attitude towards the process of hafla'a, and will not address the positive and negative features of nezirut, fasting and the like.
In his presentation of the laws in Mishneh Torah, the Rambam divides Sefer Hafla'a into four categories: "shevuot," "nedarim," "nezirut" and "arakhin ve-charamin." As the Rambam himself establishes at the beginning of Hilkhot Nezirut, nezirut does not comprise an independent type of hafla'a, but is rather included under the general category of nedarim. Likewise, arakhin ve-charamin are instances of "nidrei hekdesh" (to be explained), not a separate category (see Rambam, Hilkhot Arakhin Ve-charamin 1:1). We may thus divide the world of hafla'a into two main categories: nedarim and shevuot. Nedarim themselves come in two forms: "nidrei gavo'a" (also known as "nidrei hekdesh," pledges of sacrifices or donations to the Temple) and "nidrei issur" (self-imposed prohibitions), with "nidrei tzedaka" (pledges to charity) and "nidrei ta'anit" (promises to fast) situated somewhere in between.
THE DIFFERENCE BETWEEN NEDARIM AND SHEVUOT
The Gemara presents one explicit and well-known distinction between nedarim and shevuot: a neder forbids the object to the individual, while a shevua forbids the individual from deriving benefit from the object (Nedarim 2b). In other words, a neder devolves on the object ("This loaf is forbidden like a sacrifice"), while a shevua devolves on the person ("I will not eat this loaf").
There exists another, essential difference between these two types of hafla'a, related to the focus of the process involved. At first glance, nedarim and "shevuot bitui" (shevuot of self-imposed restrictions) appear identical: in both cases, the individual takes upon himself a self-formulated prohibition. In truth, however, a fundamental difference exists between these two types of hafla'a. Whereas the weight of a neder centers around the resulting halakhic status ("chalot") of the given item as forbidden, the shevua focuses not on the result but rather on the process. This essential distinction yields several significant differences, which we will now discuss.
The first difference relates to many aspects of shevuot that have no place in the system of nedarim. For example, whereas one who utters a nonsensical shevua violates the prohibition of "shevuat shav" (an oath in vain), most Rishonim maintain that no parallel prohibition of a "neder shav" exists. One who utters a neder that cannot possibly take effect has violated no prohibition; it is of no significance that the declaration was for naught.
Furthermore, a "shevua le-she'avar," an oath regarding past events, has no parallel in the world of nedarim. This becomes clear in light of the distinction we established: since the neder focuses on the resulting halakhic status rather than the process, a neder regarding past events has no meaning; there is no object on which a status can take effect. A shevua, by contrast, can apply even without the rendering of a halakhic status on a given object, since it focuses on the verbal process itself. One who swears about past events is thus held accountable for his words.
Regarding a shevua pertaining to the future, where the individual takes on a given restriction, the situation becomes a bit more complicated. According to most Rishonim, breaking a vow violates "Lo yachel devaro" ("He shall not break his word" - Bemidbar 30:3), the same prohibition violated when one disregards a neder. In their view, one may compare this type of shevua to a neder. The Rambam, by contrast, claims that one violating such a shevua has transgressed the prohibition of uttering a false oath; by not abiding by his commitment, he has rendered his shevua retroactively false, as if he had sworn falsely about past events (Hilkhot Shevuot 1:3). According to the Rambam, then, the focus of even this type of shevua - accepting upon oneself certain restrictions or obligations - lies in the process of hafla'a, rather than in the status it effects.
This basic distinction between nedarim and shevuot manifests itself as well in the particular attention given to the verbal declaration itself when uttering a shevua. First, some Rishonim posit that a neder, unlike a shevua, can take effect even without a verbal declaration. Similarly, many Rishonim maintain that a shevua takes effect only when uttered together with God's Name, a requirement found nowhere in the context of nedarim. These differences flow naturally from the basic distinction we have discussed. The process of the shevua, i.e. the speech itself, assumes a far greater role than does that of a neder. The demands relevant to the process of a shevua are therefore more rigorous.
This distinction manifests itself further in the view of Reish Lakish (Yerushalmi Nedarim 11:1), who negates the possibility of "hatara" - annulment by a scholar or beit din (rabbinical court) - for a shevua. The Ran (Nedarim 22b) understands this law as being of rabbinic origin; he believes that according to Torah law, a shevua could indeed be annulled. However, if we choose to view Reish Lakish's ruling as reflecting a fundamental distinction between nedarim and shevuot, then we find yet another expression of the unique character of shevuot. As the institution of shevuot focuses on the utterance itself rather than the status it effects, it cannot be revoked. Regarding nedarim, by contrast, the halakhic effect, which depends on the intention of the one taking the vow, plays a far more dominant role. A scholar can therefore annul a neder by identifying a flaw in the individual's original intent, even after he has articulated the neder.
We may consider a fourth difference between nedarim and shevuot in light of the Gemara (Yoma 85b) that categorizes shevuot among the "severe" prohibitions, while nedarim belong to the of "lenient" prohibitions. Likewise, the Gemara (Shevuot 39a) establishes that "The entire world trembled at the moment when the Almighty said at Sinai, 'Lo tisa' [the commandment forbidding false oaths]," and that "the world mourned" in response to the severity of this transgression. Similarly, Halakha draws a close association between shevuot and the concept of "kelala," curse. On the level of syntax, the word "ala," which literally means "curse," denotes a shevua (Shevuot 36a), and according to one view a shevua requires the inclusion of this term to take effect (Yerushalmi Shevuot 4:10).
These characteristics of shevuot demonstrate a strong connection between this phenomenon and realms beyond the rational world. The fact that a person's speech is to be accompanied by a sense of awe and trembling, and the fact that it affects the entire world, reveals mystical or magical qualities and ramifications beyond the world familiar to us. We find an additional expression of the unique nature of a shevua, as opposed to that of a neder, in the fact that the Almighty Himself takes shevuot. A shevua lends a unique stature even to the word of God, all of whose words are true and just: "A decree with a shevua associated with it is never revoked" (Rosh Ha-shana 18a).
The concept of a mystical dimension of speech or oaths is familiar to us from classical thought, including Greek mythology. However, as our world continues to undergo a process of secularization, these expressions progressively diminish. The Jewish perspective stands somewhere in between the ancient belief in the magical powers of words and the modern, rational approach that ridicules oaths and curses. Halakha recognizes a metaphysical, supernatural power to speech, but on condition that it originates from a rational source. This attitude expresses itself in the halakha of "ha-adam bi-shvu'a" (Shevuot 26a), which, according to most Rishonim, relates to the very definition of a shevua. This rule establishes that words expelled from the mouth without any serious thought or intent behind them do not assume the status of a shevua. Only if the individual's mind stands behind the declaration, as opposed to slips of the tongue or any statement based on misinformation, can the words yield the effect of a shevua, which, as we have seen, has ramifications beyond the rational as well.
In this sense, Halakha stands diametrically opposed to Greek drama. Mythology afforded magical powers to the words themselves, even statements and curses uttered erroneously or unintentionally. In Greek myth, one who swore mistakenly will find himself fleeing throughout his entire life from the supreme powers he activated. Judaism does not lend the same weight to the word unto itself, but certainly stands at a distance from the rationalistic approach, which denies the existence of any mystical elements in the universe.
"IN HIS NAME YOU SHALL SWEAR"
Twice, in Parashat Vaetchanan and in Parashat Eikev, the Torah commands, "In His Name you shall swear." The Rishonim debate the meaning of this imperative. The Rambam includes this command in his list of the 613 mitzvot (asei 7) and explains, "Through this there will be greatness, glory and exaltation." Man glorifies God by swearing in His Name. In explaining this mitzva, the Rambam mentions two cases in which a mitzva to utter a shevua applies: one who must take an oath in beit din, and one who seeks further encouragement to fulfill a given mitzva and thus takes an oath to that effect. In reference to the second case, the Rambam cites the verse, "I took an oath - and will fulfill it - to observe Your righteous laws" (Tehillim 119:106). The Rambam does not clarify whether this verse indicates that the mitzva of swearing in God's Name includes this type of shevua, or whether it merely allows one to take such an oath, though it involves no obligation. Either way, the Rambam clearly maintains that a shevua in the context of beit din constitutes the fulfillment of a mitzva.
The Gemara (Shevuot 47b) cites the following beraita:
"'The oath of God shall be upon both of them' - this teaches us that shevua falls on them both."
Rashi (39b) explains,
"They both [the one who swore and the litigant who called upon him to swear] are punished as a result [if the litigant swears falsely], since he [the one who brought him to court] wasn't careful to entrust his money with a trustworthy individual, thus resulting in a desecrating of God's Name."
Rabbeinu Chananel (47b) explains differently:
"It is impossible that neither is lying; either the claimant claims that which is not owed to him and imposes an oath [upon the defendant] for naught, and therefore the shevua falls upon the one who imposes the oath for naught, or the one who swears denies the claim and swears falsely."
According to Rabbeinu Chananel, then, one who forces another to swear needlessly, even if he is truthful, violates the prohibition of "chillul Hashem," desecration of God's Name. Quite clearly, then, he does not view an oath in court as the fulfillment of a mitzva, a view he shares with the Ramban (Devarim 6:13).
Commenting on the verse, "You must revere Hashem your God: only Him shall you worship, to Him shall you hold fast, and by His Name shall you swear" (Devarim 10:20), Rashi cites the following midrash: "You must revere Hashem your God, worship Him and hold fast to Him; after you attain all these qualities, then you shall swear by His Name." We may understand this midrash as allowing only righteous individuals to take a shevua, since others will likely violate the prohibition of uttering a false shevua. However, it also seems likely that the midrash here feels that swearing in God's Name is no small matter; not everyone has the right to "play" with the divine Name. There are people today who view "ahava" (love of God) as the dominant quality in avodat Hashem, and thus reserve the right to let the seven Names of God roll freely off their tongue. Clearly, this midrash maintains that excessive use of God's Name expresses disrespect; the command, "You must revere Hashem your God," means the internalization of this sense of reverence and awe, and discourages those who seek to use the Name of God.
"BETTER THAT YOU DO NOT TAKE VOWS"
The problems we mentioned regarding the use of God's Name do not arise, of course, when dealing with nedarim. The act of taking a neder constitutes a legal declaration that generates a prohibition; the problem lies only in the failure to fulfill the obligation created by the neder. Therefore, if we find any ambivalence towards taking upon oneself nedarim, it must rest upon a different foundation from that which we saw regarding shevuot. The Gemara (Nedarim 9a) cites a dispute as to the meaning of the verse, "Better that you do not take vows ['lo tidor' - referring to nedarim] than that you take vows and do not uphold them." According to Rabbi Meir, refraining from nedarim altogether is the best option, whereas Rabbi Yehuda sees taking nedarim and observing them as the optimum approach. Clearly, whatever opposition exists to engaging in nedarim involves the concern that one may violate his vow.
Beyond this issue, the Yerushalmi (Nedarim 9:1) raises another problem with nedarim: "What the Torah forbade is not enough for you, that you seek to forbid upon yourself other things?!" We may understand this problem mentioned by the Yerushalmi in three ways, which represent three types of problems posed by nedarim.
First, the additional prohibitions and obligations may infringe upon one's commitment to, and ability to adhere properly to, that which the Torah commanded. One may, of course, assess the issue from the opposite perspective: one who regularly takes upon himself nedarim accustoms himself to discipline and obedience, thus strengthening his character and reinforcing his sense of obligation to the Torah's commandments. In any event, the concern of negligence resulting from the strain on energy and focus certainly exists.
However, this issue may not have been the primary concern of the Yerushalmi. A famous Gemara (Nedarim 22a) alludto a second problem potentially posed by nedarim:
"One who takes a neder is considered as having built a 'bama' [a private altar for offering sacrifices, generally forbidden by Halakha]; one who fulfills [a neder] is considered as having offered a sacrifice upon a bama."
The commentary on the Gemara attributed to Rashi explains "bama" in this context as referring to pagan worship. The Ran, however, understands "bama" as a forbidden site for sacrificing to God. Just as one who builds a "bama" thinks that he does something praiseworthy, while in reality he commits a sin, so does one who takes a neder see virtue in taking upon himself additional prohibitions, but he is actually considered a sinner. The Shita Mekubetzet explains that just as the construction of the bama itself involves no prohibition, as Halakha forbids only the actual sacrifices brought upon it, so does the individual taking a neder not violate any prohibition unless he fails to fulfill his vow. The Gemara, however, clearly implies otherwise, as it considers even the fulfillment of the vow as something negative. Logically, too, it would seem that even the very building of a "bama" is improper: an alternate site for offering sacrificing undermines the unique stature of the Temple.
We may offer an additional explanation of this comparison between nedarim and bamot. The Torah forbade bamot for two reasons. The relevant section in Parashat Acharei Mot implies that offering sacrifices out in the fields represents, or takes a step towards, idolatry. In Parashat Re'eh, however, the Torah emphasizes a different reason: sacrificing in sites other than the places specifically chosen by the Almighty infringes upon the Temple's singularity and undermines the significance of God's selection. Similarly, one who introduces additional prohibitions beyond those presented by the Torah lends equal status to the Torah's commandments and to his own, thereby infringing upon the singular nature of the Torah's laws.
It would seem that the central problem posed by hafla'a is the third issue: the equation between man and his Creator. By its very nature, hafla'a belongs to the realm of the permitted, those areas to which the mitzvot and prohibitions of the Torah do not relate. By creating prohibitions and establishing laws in these areas, the individual appoints himself as a legislator alongside the Almighty; the element of rebellion involved is clear.
As a relevant anecdote, I would like to relate a "derasha" I heard from Professor Moshe Greenberg on the verse, "When you grow restive, you will remove his yoke from upon your shoulders" (from Yitzchak's blessing to Esav, in Bereishit 27:40). The word, "tarid" ("you grow restive") may also be read as "taryad," or the number 614. Meaning, when one reaches 614, by adding onto the 613 mitzvot of the Torah, then he has effectively broken the yoke of Torah from his shoulders. The Torah established areas of permissible behavior where one may conduct himself according to the norms and standards that he wishes to set for himself. When an individual anchors those norms with a religious anchor, he brings about a situation where he and the Almighty together determine the operative system of law, a distorted and negative situation.
Clearly, this issue we have just addressed does not arise in the case of a shevua regarding past events, as such an oath does not involve the introduction of new laws. It does, however, apply to a shevua for the future, where one takes upon himself a given obligation or restriction. Nevertheless, the Rambam rules that "Although one may have a shevua annulled… it is worthwhile to exercise care in this regard, and we avail ourselves for annulment only for a matter involving a mitzva or some dire need" (Hilkhot Shevuot 12:12). The Ra'avad there points out that this applies only to shevuot; however, the annulment of nedarim involves a mitzva. At first glance, it would seem that shevuot (even those that introduce new laws) pose less of a problem than do nedarim, since unlike nedarim, shevuot do not generate a new reality; they do not bring about a status upon an object, but merely obligate the individual. In truth, however, this is not the case, since the problem of equating man with his Creator exists to the same degree in both cases. The problem with annulling shevuot must therefore involve other issues.
As we have seen, the theological status of nedarim is a most delicate one. Specifically for this reason, motivation takes on critical importance: to what extent does the individual take upon himself new obligations in order to enhance his avodat Hashem, or does this perhaps symbolize, from his perspective, a rebellion against the Torah and He who transmitted it? Indeed, the Rambam reaches this very conclusion, as he formulates his dialectical approach at the end of Hilkhot Nedarim (13:23-24):
"One who takes nedarim in order to stabilize his conduct and correct his ways - this is proper and praiseworthy… Regarding these and similar nedarim, our Sages said, 'Nedarim are the fence around abstinence.' But although they are considered the service [of God], a person should not indulge in, or accustom himself to, nedarim that add prohibitions. He should rather abstain from those things from which it is worthwhile to abstain without a neder."
In the world of Chassidut, many thinkers addressed the issue of how to relate to hafla'a, and generally espoused a more positive outlook than even that of the Rambam. The Breslav work "Likutei Halakhot" (Nedarim 2:2) emphasizes the greatness of nedarim in that it enables one to turn anything in the world into Torah:
"A person can forbid upon himself anything in the world and turn anything in the world into Torah, meaning, that it will involve a mitzva and a sin, through a neder or shevua… God thereby revealed to us that there is Torah and service [of God] latent within everything in the world, for they all receive vitality from Torah."
The author of this work takes a generally favorable stance towards nedarim, raising only one problem, namely, the concern that the individual may violate his word. The Sefat Emet (Matot 5647) claims that all nedarim already exist, hidden and concealed within the Torah, and God wishes for the sages of Yisrael to take nedarim and thus bring these prohibitions into actuality.
As opposed to the Likutei Halakhot, the Sefat Emet stresses the effect of a neder on Torah and mitzvot, rather than on the world at large. The approach of the Sefat Emet may serve as a balance between the Likutei Halakhot, which sees nedarim in an entirely positive light, and those approaches that view them as categorically negative. Through the institution of hafla'a, the Torah allows the individual to express his values and wishes. However, one must remember that even if he can add onto the prohibitions of the Torah, he and the Master of the world do not share equal standing. Nedarim are a remarkable tool that the Almighty provided for us. When we use them inappropriately, in an attempt to equate ourselves with the Giver of the Torah with the intent of rebellion, then the neder becomes disgraceful; but when they are used properly, with sincere intentions and appropriate dosage, then the neder is proper and praiseworthy.
(This sicha was delivered at the end of "zeman kayitz," 5760 .)
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