Or HaChaim on Leviticus 21:2/אור החיים על ויקרא כ״א:ב׳

1 כי אם לשארו, except to his wife, etc. Torat Kohanim explains that the meaning of the word שארו is "his wife." The words הקרוב, "who is close," a word which is not really necessary, refers to the exclusion of ארוסה, a woman betrothed to a priest who does not yet live in his home, the final marriage vows not having been completed as yet. She is excluded from relatives for the sake of whose burial a priest must defile himself as a mourner. The word אליו "to him," another extraneous word, teaches that the death of a divorced wife of a priest also does not qualify as an excuse for her erstwhile husband to defile himself ritually. The reason is that such a woman is no longer קרוב, close to her former husband the priest. Why does the Torah add the words לאמו ולאביו? Seeing the mother is not of the same tribe as the son (or is subject to being demoted in status if she survives her husband the priest), I might have thought that the son may not defile himself at her death. The Torah therefore had to tell us that the son is to defile himself at his mother's death. Once we have established this, why would I have thought that the son must not defile himself over the death of his father unless the Torah spelled this out for us? Would I not have reasoned that inasmuch as the son must defile himself at his mother's death even though the mother was most likely not the daughter of a priest, the son most certainly has to defile himself at his father's death seeing the father was a priest also (and is not subject to lose his status through the death of his spouse)? The Torah had to write that the son who is a priest must defile himself due to the death of his father although we do not know for a fact that the man who described himself as his father really was his father. Paternity is established only by reason of חזקה not by reason of definitive knowledge such as maternity. The scholars of Luneil raised an objection to this Torat Kohanim. They felt there was no need for the Torah to mention that the son must defile himself at the death of his father as I could have arrived at this legislation by learning a קל וחומר from his mother. They reasoned that the son has to defile himself precisely because either the father is a priest who does not cause himself to be demoted and as such qualifies as a close relative even more than the mother who is subject to demotion in status; or there is no certainty that his father is his real father in which case the son is not a priest and there is no reason he cannot defile himself at the death of this man. [the scholars of Luneil described the son as a bastard, something I have not been able to understand. Why could the father not simply have been a non-priest claiming to be a priest? Ed.]

2Our author does not consider the objection of the scholars of Luneil as serious seeing our verse is concerned with permitting something which had so far been forbidden to the parties concerned. We cannot permit something which was forbidden by using the קל וחומר (according to the principle דיו לבוא מן הדין כנדון) as our exegetical instrument. All a קל וחומר can accomplish is to teach that a situation is similar to the one which forms the basis of the קל וחומר; It cannot teach additional halachot of a more stringent nature. The Torah permits the son to defile himself for the sake of near relatives whereas the prohibition to defile himself at the death of more distant relatives remains in force. Furthermore, in the event that the son does not want to defile himself, he is forced to do so as part of honouring his father who has died. This is the meaning of the words לה יטמא, "he must defile himself for her sake." Torat Kohanim explain these words by saying: "it is a positive commandment for every priest to defile himself at the death of any of the seven relatives mentioned in our verse." While it is true that the Torah wrote this expression only next to the sister of the priest, Torat Kohanim already explained this in connection with a true story involving a priest called Joseph whose wife died on Passover eve and the priest did not want to defile himself so as not to forego the commandment to offer the Passover sacrifice, etc. The local rabbinic authorities forced that husband to defile himself and take part in the burial of his wife. Thus far the story related in Torat Kohanim. The story proves that the authorities did not restrict the meaning of the words לה יטמא as applicable only in the event a priest loses a sister. What all this proves is that one must defile oneself for the sake of any of the relatives enumerated in verses 2 and 3. It follows that if I had derived the directive to defile oneself at the death of one's father based on exegesis alone I could not have arrived at such a law as I would not have been able to be certain that the man who died was indeed the father of the son described here. I certainly would not have been entitled to refrain from offering the Passover sacrifice if such a "father" had died on the eve of Passover. Doubts concerning the application of a biblical commandment cannot be resolved through abrogation of that commandment, even temporarily. Not only would such a son not be permitted to defile himself on the father's grave based on the doubt (according to Maimonides and Pri Chadash who hold that doubt concerning a biblical commandment's applicability may be resolved by a lenient ruling), but even according to those who hold that we never apply a lenient ruling when the doubt concerns a biblical injunction the son could still not defile himself merely on the chance that the deceased was not his real father and as a result postpone celebrating the Passover on time. After all, no doubt exists about the need to perform the commandments connected with Passover. The Torah therefore had to write both the words לאמו ולאביו to tell us that a son who is a priest must defile himself for the purpose of bringing either his father or his mother to burial.

3Furthermore, we are dealing here with a situation where the son's status as a priest is based only on the assumption that his father who claims to be his father is also a priest, another assumption which is itself not based on definitie evidence. In view of the fact that neither son nor father can establish a definitve claim as to their paternity and priesthood respectively, I would not have allowed the son to violate his legal status and defile himself on the basis of a חזקה that the man he knew as his father was indeed his father unless the Torah had decreed this specifically

4ולבנו ולבתו ולאחיו, "and for the death of his son, his daughter or his brother." Torat Kohanim comment as follows on this verse: "The Torah should have been content to mention the son and the daughter; why did the Torah also have to write that the son must defile himself for the sake of burying his father and his mother? If the Torah wrote that a father must defile himself in order to bury his son or daughter whom he is not obligated to honour, is it not logical that he certainly has to defile himself for the sake of burying his father or mother whom he is obligated to honour?" If this reasoning were correct, I would have had to conclude that the words "son or daughter" were meant to apply to children who were aborted and had never drawn a breath of life. The Torah therefore had to write the words "son and daughter" to ensure that I would not apply the קל וחומר we just described. The Torah told us that only sons and daughters who had demonstrated viability qualify for their father the priest defiling himself at their burial." Thus far Torat Kohanim. I find this difficult to understand. If it were correct, all the Torah had to write were the words לאמו ולבנו, and I would have derived this information from these two examples. The word לאביו would have been quite unnecessary. Also, according to the argument that seeing the mother is a definite blood-relation therefore I could not have concluded that the father also qualified for the son defiling himself at his grave unless the Torah had stated so specifically, we could have extrapolated this from the words "his son or his daughter." Whose father is known with certainty? Yet the Torah spelled out that the father must defile himself at the grave of a son whose identity as his son is based on an assumption, חזקה only. We cannot even argue that the identity of the father is less certain than the identtiy of either son or daughter (as far as their respective paternity is concerned) for we find that the author of Torat Kohanim used their identities as the basis for his קל וחומר to include the father in the same legislation. So we are back to the question of why the Torah had to spell out that the "son" has to defile himself at the burial of his "father?" If the only reason the Torah wrote "his father" was to teach that the commandment to defile himself applied only to children who were viable, so that the term "father" applied in the full meaning of the word, we could have derived this from the fact that the Torah wrote לאמו though this too could have been derived from קל וחומר seeing we already have the words בנו ובתו. There is no reason to say that we need both the words לאביו ולאמו together in order to exclude aborted fetuses; why would the word "father" or "mother" not be sufficient to teach us that rule? Besides, if we really needed both these words why did the author of Torat Kohanim go to the trouble to demonstrate that each word by itself was required separately? We already needed both words together to exclude the aborted infants from the regulation discussed by the Torah in our verse?

6However, another statement concerning the words לאמו ולאביו at the end of Torat Kohanim presents a problem. We read there as follows: "If the Torah had only written the word לאביו and had not also written the word לאמו I would have reasoned that if the Torah demanded that the son defile himself for the burial of his father whose identity is based merely on חזקה, an assumption, such a son most certainly would have to defile himself at the death of his mother who is his biological mother beyond any doubt! I would then have countered that the mother's status as a priest's wife is not constant since she stands to lose it on the death of her husband or through a divorce. Therefore the Torah had to write the word לאמו to also include her in the number of blood relations for whose burial the son who is a priest has to defile himself." We see that the Torah had to write the word לאמו to include a mother who had already forfeited her status as a priest's wife prior to her death! If so, what word is there left for exegetical use to exclude aborted infants from the legislation that the father who is a priest must defile himself on their account? On the other hand, if you use the word to exclude these aborted fetuses, which word is left to include that the son, the priest, must defile himself over a dead mother who had become נתחללה, lost her former status as the wife of a priest? Besides, whence do I know that the father the priest has to defile himself on account of a daughter who had lost her status as the wife of a priest? One could argue that case in either direction! One could say that seeing the son has to honour his mother regardless of her marital status, he also has to defile himself on her account when she dies; on the other hand, one could argue that the Torah had already made it plain that the fact that a woman forfeited her marital status as the wife of a priest did not affect her blood relationship to her son and therefore should have no bearing on the need of her biological son the priest to defile himself at her funeral; also that just as the son has to defile himself for his mother, so, in the event that he has a daughter he has to defile himself if she dies.

7Let us examine precisely how the author of Torat Kohanim arrived at the conclusion that the son the priest must defile himself on account of a mother who had lost her status as the wife of a priest. Was this conclusion based on the extraneous word לאמו? Perhaps the word לאמו was not at all superfluous and we needed it to prove that defilement is in order seeing the mother's status was inferior as she was subject to becoming מתחללת, losing her privileges as the wife of a priest, something that cannot happen to the father except if he does something wrong himself. Similarly, the author of Torat Kohanim had been careful to point out already at the beginning of his discourse: "What distinguishes the father? The fact that he is not subject to losing his status as a priest." This meant that this consideration established the basis for a certain asymmetry in the status of the "father the priest" and the "mother the priest's wife." The remarkable thing is that even though in effect the mother died without ever losing her status as the wife of a priest, the fact that she might have done so is considered as sufficient reason to rate her priestly status as inferior to that of her husband. Following this train of thought, we are entitled to the conclusion that if the mother had indeed already been disqualified from being the wife of a priest her son would really not be allowed to defile himself at her burial. We are therefore compelled to say that the author of Torat Kohanim proceeded from the premise that mention of the word לאמו means that a priest has to defile himself for his mother regardless of whether or not she has in effect been disqualified from being the wife of a priest. Now the fact remains that if the Torah had only written the word לאביו I would have been entitled to argue that the mother is inferior in status to her husband the priest even while she enjoys her status as the wife of her husband the priest because of her potential disqualification. Now that the Torah also wrote the word לאמו the Torah made clear that even if she had become disqualified her son the priest has to defile himself on her account when she dies. You can apply the same reasoning to the word ולבתו, and on account of his daughter. By the simple expedient of mentioning the daughter the Torah included a daughter who had become disqualified as a possible wife for a priest. Her father the priest must defile himself on her account in the event she dies. The only factor which governs all this legislation is the biological relationship. Seeing a mother or daughter who do not qualify as a wife for a priest have not ceased to be called mother or daughter respectively, the legislation for the son or father to defile himself is in place. This brings us back to the question why the Torah had to write the word לאמו, seeing we could have derived the law for the mother from the word בתו?

8Nonetheless, if the Torah had not written the word לאמו, I would not have concluded that the word לאביו was meant to exclude children which had been aborted before they became viable, but I would have concluded that it excluded אמו, his mother. It is far more more reasonable to exclude the mother of the priest than to search for such far-fetched exclusions as the need to defile oneself at the death of premature stillborn children. The reason I would have excluded the mother would be her status, i.e. the fact that she is constantly subject to losing her status as a priest's wife and the privileges which accrue to her thanks to that fact. We would have limited the fact that the daughter qualifies for her father defiling himself as applying to a daughter who had not actually jeopardised her status as a priest's wife, or at least as potentially a priest's wife, whereas I would have limited the exclusion of the priest's mother to a mother who had actually lost that status. A mother who had not jeopardised her status as the wife of a priest would qualify for her son the priest defiling himself at her funeral. I would have used a קל וחומר extrapolating from the word בתו to arrive at that conclusion. When discussing the status of a daughter, even one who had forfeited her status, we would have remembered that she is still called "his daughter" in the Torah regardless of whether she qualifies for marriage to a priest or not. We would then have reverted to apply that same reasoning to a daughter who had jeopardised her status by comparing her to a mother who had jeopardised her status, based on the unnecessary word לאביו. We would have reasoned that just as a mother who has jeopardised her status as the wife of a priest does not cause her son the priest to defile herself on account of her funeral, so a daughter in her condition most certainly does not confer the duty on her father the priest to defile himself on account of her death. We would have argued this in spite of the fact that the very word בתו in the Torah implies that this daughter did not jeopardise her status as a blood relative by losing her status as a woman a priest may marry. The word בתו would only commit us if I did not either have a restrictive clause or a קל וחומר to counter our reading of the text. We would therefore read the word בתו as applying only to a daughter who had not lost her status, i.e. לא נתחללה.

9What emerges from all these examinations of the deeper meaning of our text is that if the Torah had not written the word לאביו which could have misled us into thinking that it was intended to exclude the son the priest defiling himself at his mother's funeral, there would indeed have been no need to write the word לאמו. I would have derived all the הלכות I needed from the words בנו ובתו, his son or his daughter as mentioned earlier. If the Torah had not written the word לאמו from which the error concerning excluding the father whose status is based only on חזקה would have resulted, there would have been no need to write the word לאביו. If so, you would ask why does the Torah not simply write only לאביו, leaving out the word לאמו altogether? In order to forestall this question Torat Kohanim explained that the word was intended to exclude premature stillborn infants. Seeing that this is so there is no more room to argue that the word לאמו or לאביו should have been written by itself. The moment the Torah would write only one of these two words I would arrive at an erroneous conclusion and demolish the whole pyramid we have built thus far. The Torah was therefore very clever in writing exactly what it did. Torat Kohanim was conscious of this and informed us of a possible error we could make if the Torah had not written precisely the words we find in our text.