Shabbat, Letter Tiles, and the Spirit of the Law

[rhu]

A friend wrote to me with an important query in response to a comment thread in my post about using Bananagrams tiles to solve the NYT puzzle on Shabbat

My friend writes:

So I was reading your blog posting, and your reply to Tyger brought up some long-standing questions I have that I'd forgotten about. You seemed up to talking about the subject, so I hope you don't mind that I'm writing. (It didn't seem appropriate to be buried in the comments of a posting.)

Towards the end of your reply to Tyger, you write:

Sometimes, because the way activity A is usually done would be prohibited, people grow to assume that activity A itself is prohibited; when someone thinks of a way to do activity A that does not violate the laws of Shabbat, it's perceived as cheating. But it's not cheating, because it was never activity A itself that was prohibited.

There seems to be a letter of the law and a spirit of the law. The spirit is "don't work; instead do things that are personally and interpersonally and spiritually rewarding", and you argue that solving puzzles is indeed a rewarding task. I may be wrong, but I believe the letter of the law is something blunt like "Don't write two letters next to each other" without a clause like "...in a way that is work, not relaxation."

So, following your lead about construction and letters, suppose a foreman spent Shabbat placing Bananagrams in piles on his worksite, specifically because he wanted to avoid losing the day's work. That seems to fit the letter but not the spirit, and I imagine it would be condemned as "cheating". (If not, I'd expect to see people doing that today.)

Similarly, following your lead about shuffling bookmarks to keep score in Scrabble, I imagine an accounting firm that spends Friday morning prepping an encyclopedia set and asks its bookkeepers to "read" over the Sabbath. They'd probably also be cheating.

If I understand the letter of the law correctly, the activities of accounting or prepping a construction site aren't prohibited, but just the way it's usually done is prohibited. But still, those hypothetical people would not be cool because they violate the spirit of the law, right? I imagine that's how people feel, that the spirit of the law is more important than just following the letter.

Unfortunately, from there, my imagination can only derive two sets of people. One cares about the spirit far more than the letter of the law. They would focus on what it means to cease work and start play, and they'd be willing to say "You know, work is different today and play is different today, so go ahead and play Scrabble, and when you keep score you can write the words you've played and add numbers too. You're relaxing with your family, and everyone's literate these days. Enjoy yourself." The other group cares about the spirit and letter, both, and since they care so much about the letter of the law "Don't write", they'd also care about the spirit of *that* law. They wouldn't allow people to place Bananagrams side-by-side at a construction site or at a card table, and they would say "If the Sabbath is for ceasing work, and if you can't write two letters side-by-side on the Sabbath, then Scrabble is, by definition, work."

As for whether or not you're "cheating", the first group wouldn't care. The second group would say "yes". But here you are, caring and saying "no". What did I miss?

My friend raises an important point, and with his permission I'm sharing his query and my response publicly.

It's actually more than one point, although the relationship among the various topics is complex enough that I'm finding it hard to enumerate them. So forgive me if the following is a little disorganized.

1. Hypocrisy

The main question that my friend asks boils down to this: If one considers oneself bound by the law, isn't it hypocrisy to follow the letter of the law and transgress the spirit?

The simple answer, of course, is "Of course." The complex answer, of course, is more complicated than that. :-)

First of all, the "letter" of the law is not as finely drawn as one might think. As with any legal corpus, the halacha records various strains of law that evolved in different courts over many years. While there are some basic areas where everyone agrees, there are also many gray areas where an activity might be prohibited by some authorities, permitted by others, and conditionally permitted or proscribed by yet others.

Second, it's even harder to pin down the "spirit" of the law. We start off with different versions of the "letter" of the law, so what seems like an underlying principle to one person may be contradictory to another. And the underlying reasons are not always given in the law corpus. For a secular example, we could ask about the framers' original intent for the Second Amendment, and we'd be here forever.

Nevertheless, the problem of what the Talmud calls "a scoundrel within the law" is a real one. However one understands the technicalities of permitted and prohibited activities, and however one understands the moral or spiritual framework that finds its expression in those laws, there are cases where what is permitted seems like it oughtn't be. (The inverse of the "scoundrel within the law" is the one who lives "beyond the boundary of the law" --- lifnim meshurat hadin.)

My friend's examples above are ones in which someone is taking a difficult path to find a legitimate way to do something that would normally be prohibited.¹ But we don't have to go that far.

Consider the following, which is sort of the inverse of where we started: Reading is not a prohibited activity on Shabbat. Yet it feels highly inappropriate on Shabbat to read work-related materials or the business section of the newspaper. It's not a violation of any of the 39 "parent activities", it's not a primary or secondary derivative prohibition, but our intuition tells us it's "not Shabbosdik". In fact, some rabbis go ahead and place these in the category of forbidden actions, based on a non-legal admonition in Isaiah 58:13-14.

2. Jargon

One of the dangers in analyzing this topic is that what seems "obvious" from outside the system² is sometimes not true. It's complicated by inexact translations of technical terms into English. Melacha is not "work;" it is one of the thirty-nine parent activities prohibited on Shabbat, or their "generations". Carrying a sofa from one end of the living room to another is not melacha, but walking outside with a key in your pocket may be.

My friend writes: "If the Sabbath is for ceasing work, and if you can't write two letters side-by-side on the Sabbath, then Scrabble is, by definition, work." But that's incorrect: by definition, the prohibition against writing means literally that: one may not take a pen or paintbrush or crayon and create symbols that were not there before. That's the definition of the prohibited action "writing". In fact, the Shemirat Shabbat K'hilchatah [The Guarding of the Sabbath According to Its Laws], a definitive compendium of laws written just last century, covers the case of letter-tile-based games:

One is allowed to play games in which letters are placed side-by-side so as to make up a whole word, provided that the varous sections are not interlocked and fixed together, as they are in most jigsaw puzzles. [16:23, elided]

Similarly, people seem amazed, since everyone "knows" that making coffee is prohibited, when I tell them that I can brew fresh coffee on Shabbat by using a Melitta cone. But it's not the case that making coffee is proscribed; it's just that most ways of making coffee happen to transgress one or another of the prohibitions, but using a Melitta cone doesn't transgress any of those. Why invent a new generalized prohibition that's not justified by the specifics?

So going back to the original case of using Bananagrams to solve crossword puzzles on Shabbat: (1) There is no prohibition against solving word puzzles per se on Shabbat; (2) the usual way of solving crossword puzzles violates the specific prohibition against writing letters; (3) there is no prohibition against arranging letter tiles; therefore, (4) there is no prohibition against solving a crossword puzzle if one can do it without writing by using letter tiles. To create a new prohibition by analogy with (1+2) is not justified by the existing law (1+2+3).

3. Resisting Creeping Stringency

This brings me to a third topic. There is a tendency to err on the side of "safety", to argue that something might be prohibited so we're better off just avoiding the question. But the result of that attitude is that things do end up getting stricter and stricter, and we end up violating the Torah law of bal tosif, do not add on new laws.

The Talmud, as usual, expresses this pithily: "Any fool can give a strict ruling; it takes a wise person to rule leniently."

A relevant example: Before the NPL con, I sent an email to my Rabbi, saying "I'm pretty sure the answer is 'no', but can I be in the group photo that's going to be taken on Shabbat afternoon?" And he wrote back, "Actually, if the picture is going to be taken regardless of whether you're there or not, there's no prohibition against your being there." I had made the incorrect assumption that since I can't take a picture on Shabbat, I can't be in one taken on Shabbat; fortunately, I knew enough to ask.

Now, having said that, there's nothing wrong with taking a principled stand that is stricter than the law requires, as long as one is clear that that is what one is doing. I don't eat veal, even though kosher veal is available, because I believe that the way veal is raised today is immoral. But I characterize that as a personal choice: one motivated by my understanding of Jewish values, but not one based on a specific Jewish law.

4. Spirit vs. Letter redux

So to close the circle: My friend writes, "I imagine that's how people feel, that the spirit of the law is more important than just following the letter."³

That's a statement that's easy to agree with, if only because everyone will interpret it eisegetically.

The "spirit" of the law is the sense of the law that we get from our individual understanding of the particulars of the law, and whatever we do that's within the letter of the law is therefore (almost always) going to fall within our understanding of the spirit of the law as well.

That means that, to me, there's no contradiction between the letter and spirit of the law when I play with letter tiles to solve the puzzle, or make coffee, or rely on X-10 to automate my house lights. To you, dear reader, some or all of these may seem incongruous, and you may choose differently.

But I don't think we reach the point of hypocrisy or "scoundrel-within-the-law"-ness until a person says, "Hey, you know, what, I shouldn't be allowed to do this, but I figured out a way to do it anyway!" And such a person is not liable for transgressing, because by definition their action is not a violation --- but it can still be morally or spiritually wrong, and they can still receive social censure, and they might someday have a pang of conscience.⁴

5. Some Concluding Thoughts

That's hardly a satisfactory conclusion, is it? One wants to stand up and proclaim, "Of course we should abide by the spirit of the law!"

But while that feels good, it's not practical. The "spirit" of the law is not sufficiently well-defined to have notional force; it would introduce even more boundary conditions and gray areas than we have now if it were normative.

Laws are specific rules that guide our actions. They both reflect and shape the character of a people.

By better understanding and undertaking to observe the details of Jewish law, I hope for my soul to be shaped in the mold created by God and refined by my ancestors, and to become more sensitive to the "spirit" of the Law and of the Divine Will.

---

Notes

[1] In the case of my friend's examples, there are other problems. Most activities regarding construction are, in fact, parent prohibitions --- recall that these derive directly from the acts necessary for the construction and operation of the Tabernacle. And there is another relevant injunction against doing something on the Sabbath that is preparation for after the Sabbath. But I admit the general principle: There are acts that are technically legal but don't seem like they should be.

[2] Or even sometimes from inside the system. There have been several times that I've double-checked with my Rabbi about something that I was pretty certain was prohibited, and he came back with "actually, there's no problem there." One had to do with the NPL Con photo, about which more later in this essay; the others (if you're curious) were about performing a concert in a church, allowing the kids to go catch-and-release fishing with their grandfather, and about carrying when an internal eruv boundary had come down on Shabbat.

[3] The critical word in there is "just" --- because those who say that "following the spirit of the law is more important than following the letter of the law" are actually redefining "law" as "custom". My friend elaborates on this in the paragraph after this quote, and I wanted to emphasize that he's not following that path in his query.

[4] OK, I have to at least reference the scandal in New Jersey. These people, if the allegations are true, not only did violence to the spirit of the law, they willfully transgressed numerous severe prohibitions. This goes beyond hypocrisy into flagrant sinfulness. Same with the rioters in Mea Shearim.