Rabbi Jachter's Halacha Files
(and other Halachic compositions)

Parshat Pekudei          1 Adar II 5765             March 12, 2005             Vol.14 No.25

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<<Part 2<<

<<Part 3<<

The Role of Archaeology in Halachic Decision Making - Part Four
by Rabbi Chaim Jachter

In the last three weeks we have explored the fascinating issue of the potential impact of archaeological finds upon Halacha. We explored the dispute that currently rages regarding the use of the “new” Techeilet, the establishment of the proper day of Purim observance as well as other issues. In this essay, we shall conclude this series with discussions of the Halachic reaction to an archaeologist’s claim that the human remains that he discovered are not of Jewish origin, as well as possible archaeological evidence supporting the non-Chassidic Ashkenazic tradition regarding how to write the letter Tzadi in a Sefer Torah. If you have missed any of the articles in this series they are available on our website, www.koltorah.org

Identification of Bones
We now proceed to what is probably the most delicate issue that we will grapple with in this series – whether or not Poskim may accept an archaeologist’s claim that human remains are not from a Jewish person, based on currently accepted archaeological and archaeobiological techniques. We should note first that Halacha prefers when a Torah-observant archaeologist presents the claim. Although Halacha accords credibility to professionals because they do not wish to jeopardize their professional standing (see, for example, Shulchan Aruch Orach Chaim 20:1), nevertheless, the Halacha prefers the advice of a Torah-observant professional. For example, it is preferable to seek the judgment of an observant doctor to determine if a sick individual must fast on Yom Kippur (see Biur Halacha 618:1 s.v. Choleh).
The reason for this is straightforward. The Mishnah (Bechorot 30a) states the rule that “one who does not observe a particular Mitzvah cannot serve as a judge or witness regarding that Mitzvah.” For example, one cannot trust the Kashrut of someone who does not abide by the laws of Kashrut. One who does not observe a Torah law sometimes cannot psychologically grasp the importance of meticulous observance of that law (see, though, Teshuvot Igrot Moshe Yoreh De’ah 1:54 for the possible exception of a family member that one knows can be trusted). An archaeologist who does not observe Torah law might not be sensitive to the importance of the great dignity that Halacha requires us to extend to the dead.
Incidentally, it seems that it is for this reason that Rav Kook (as we mentioned in our first essay in this series) ruled that we cannot rely on the traditional Arab names of a town to identify a particular locale with a location mentioned in either the Tanach or Gemara. We rely upon a Jewish tradition such as the identification of an Etrog as the Pri Etz Hadar mentioned in the Chumash because each generation is meticulous about passing on precisely the correct identification to the next generation. We cannot rely on the precision of an Arab tradition of the identification of a locale. It is entirely possible that the Arabs named the town after a town whose ruins are located in the general vicinity.
We should note that the scholarly Israeli journal Azure recently (winter 5764) printed an essay by Yoram Hazony who asserts that many Israeli archaeologists are downright hostile to basic Jewish values. Hazony writes that it appears that this attitude even impacts on their professional work. Hazony’s essay explains the skepticism and distrust that some Rabbanim maintain towards some non-observant archaeologists.
However, it is not obvious that Halacha accepts the claims even of an observant archaeologist. Recall from our first essay that Poskim regard scientists’ assertions with a healthy dose of skepticism. We noted that Rav Kook asserts that, in general, Halacha regards scientific claims merely as possibly correct (Safek), because a later generation of scientists might disprove and reject the claim, as has very often occurred. Thus, even if a Torah-observant archaeologist claims based on carbon-14 dating or other scientific methods that bones in an excavation cannot be of Jewish origin, we might only regard this claim as being possibly correct. We should be concerned with the possibility that later generations might reject the validity of the scientific methods used by the current generation of archaeologists.
Nonetheless, Rav Kook does write (Teshuvot Daat Kohen 79 and 191 and Teshuvot Ezrat Kohen 41) that Halacha can accept some scientific claims as being either certain or very likely to be certain. This occurs when ample empirical evidence exists to support their claims. Rav Kook cites numerous examples where Chazal accepted specific scientific claims as the basis for their Halachic rulings (see Tosefta Ohalot 4:2, Bava Kama 91a, and Sanhedrin 78a).
An example of this could be the Mishnah (Makkot 22a) where Halacha relies upon a doctor’s evaluation of how many Malkot (lashes) someone can sustain. It seems from this Mishna that we will rely upon the doctor’s evaluation and recommendation, if Poskim determine that it is based on a solid foundation of evidence. Rav Yonatan Adler (whom we cited in our first essay) thus concludes (Techumin 24:504) that each specific claim made by archaeologists should be evaluated by Poskim to determine whether it should be dismissed as conjecture, regarded as possibly correct, or accepted as certain or almost certain truth. It seems that the cooperation between Rabbanim and observant archaeologists would be most helpful in reaching an appropriate conclusion.
Interestingly, Rav Adler’s conclusion seems to be supported by the Teshuva of Dayan Weisz in his Minchat Yitzchak regarding the proper date of Purim observance in Lod (that we discussed in the third part of this series). The archaeological evidence that Dayan Weisz seriously considers are the ancient graves that were discovered in the course of highway construction in Lod. Dayan Weisz notes that members of “Atra Kaddisha” (the Chareidi organization that vigorously advocates for the respect of ancient graves throughout Medinat Yisrael) “establish with certainty that these are graves of Jews from the time of the Mishnaic period based on their expertise from other places.” Dayan Weisz appears to accept this assessment without any reservation and he takes it into account when issuing his final ruling. It would appear that Poskim could accept other archaeological evidence that is verified by observant archaeologists in coordination with Rabbanim.

Writing The Letter Tzadi
A final interesting example of a Halachic evaluation of archaeological evidence is that of Rav Moshe Shternbach (Moadim Uzmanim 2:166 footnote 2),a major contemporary Posek who resides in Jerusalem. He discusses the celebrated dispute surrounding how to write the Hebrew letter Tzadi in Torah scrolls. He notes that ancient Tefillin which have been discovered and dated to the time of the Bar Kochva revolt support the non-Chassidic Ashkenazic tradition regarding how to write this letter. Although Rav Shternbach expresses very serious reservations on relying on archaeological evidence regarding Halachic matters, nevertheless, he writes that the Tefillin demonstrate that the non-Chassidic Ashkenazic tradition was practiced by many Jews in ancient times and thus the Vilna Gaon (and Chazon Ish, Orach Chaim 9:6) is correct in insisting that non-Chassidic Ashkenazim not deviate from their tradition on how to write the letter Tzadi. Rav Shternbach even urges non-Chassidic Ashkenazim to be certain to hear Parashat Zachor read from a Sefer Torah where the letter Tzadi is written in accordance with the non-Chassidic Ashkenazic tradition. Rav Shternbach does not suggest, though, that Sephardic or Chassidic Jews alter their practice based on the archaeological evidence. He merely uses the archaeological evidence as support to those who follow the non-Chassidic Ashkenazic tradition regarding this matter. Indeed, it is entirely possible that in the future Tefillin will be found supporting the Sephardic and Chassidic tradition regarding the letter Tzadi. Moreover, the mid-twentieth-centurywork Tzidkat HaTzaddik (written to defend the Chassidic and Sephardic tradition for how to write the letter Tzadi) includes (p.40) a picture of a Sefer Torah written by the Ran (one of the great figures of the era of the Rishonim) and the letter Tzadi is written in accordance with the Sephardic and Chassidic tradition (also see Teshuvot Yabia Omer 2:Yoreh Deah 20).
I wish to note that I was shown a picture of the Tefillin found in Kumran (which is what Rav Shterbach appears to be referring to) and it did not at all seem clear to me that the letter Tzadi was written in accordance with the non-Chassidic Ashkenazic tradition. However, I did not conduct a proper and thorough investigation of this matter.



In our first essay, we saw that the Chazon Ish and Rav Kook might be interpreted as disagreeing as to whether Poskim should consider the findings of archaeology. We have seen this in the last three essays, that some of the late twentieth-century Poskim are open to the findings of archaeology, while others seem to disregard them. However, even those who consider the findings of archaeology to be of Halachic significance view the findings critically and do not consider the findings of archaeologists in rendering Halachic rulings when it contradicts a Mesorah of Am Yisrael. Finally, an observant archaeologist potentially can contribute to Am Yisrael in this field, although one who is contemplating entering this field should understand that some in this field are not welcoming of Torah beliefs and Jewish values.

We should note that the attitudes that we have outlined regarding the interface of Halacha and archaeology probably apply to Tanach studies as well. While many do not see any relevance in archaeological discoveries for the study of Tanach, some in the Orthodox community have found that a critical evaluation of the archaeological finds in Eretz Yisrael and elsewhere in the Middle East have greatly enriched their appreciation and understanding of Tanach. The Orthodox Daat Mikra series on Tanach, the Orthodox Tanach journal Megadim and the writings of Rav Yoel Bin Nun and Rav Elchanan Samet are excellent examples of how critical analyses of archaeological finds have significantly enhanced our understanding of and commitment to the Tanach (although this enterprise is not undertaken without risk, since there are many challenges posed by certain archaeological evidence and interpretation).
In addition, the same debate seems to rage in the context of Hashkafah (Torah world view) regarding archaeological evidence that the world is more than 5765 years old. Some Rabbanim simply dismiss these findings of archaeology and others embrace them enthusiastically. The Tiferet Yisrael (a major commentary to the Mishnah) writes (Drush Ohr HaChaim, printed in the Yachin Uboaz edition of Mishnayot after Masechet Sanhedrin) with great enthusiasm that the discovery in Siberia of the woolly mammoth proves the Midrashic assertion (Bereshit Rabbah 3:7) that there existed worlds before the present world. The Maharsham (Techeilet Mordechai, Breishit 2) and Rav Kook (Iggrot Re’iya 91) subscribe to this approach. For a variety of Orthodox approaches to this issue, see the various essays in the classic work entitled “Challenge: Torah Views on Science and its Problems.”


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