Sunday, August 12, 2007

Shoftim, Devorim 16:22. Lo sakim lecha matzeivah- Do Not Erect a Monolithic Altar. (It Might Be Muttar to Act with Derech Eretz in an Orthodox Shul.)

This dvar Torah will be of particular interest to talmidei chachomim who are familiar with the Lanham Act, perhaps a relatively small subset. However, all readers will find that there is a great chiddush based on a Maharal: It might be muttar to act with decorum in shul, as will become clear below.

A Matzeivah is a Single-Stone Altar; a Mizbei’ach is a Multiple-Stone Altar. This passuk prohibits the use, even the erection of, a single stone altar. Multiple stone altars, on the other hand, are allowed.

Rashi– even though Hashem loved single-stone altars in the days of Avraham Yitzchak and Yaakov, now Hashem hates them because they have been adopted by idol worshippers for their sacrificial service.

The Ramban asks an important question here. Why are multiple-stone altars allowed, if idol worshipers use mizbeichos as well?

The Ramban says two teirutzim. He doesn’t like his first teretz himself, and his second teretz is that you have to be makriv on something, so mizbeichos had to remain muttor - even though the same logic that prohibited matzeivos should also prohibit mizbeichos.

The Maharal and the Netziv say interesting answers. The Netziv says that not only did they use matzeivos, they also worshiped the matzeivoh itself. So although their mizbeichos were used in the service of avodoh zoroh, their matzeivos were avodoh zoroh themselves, and that’s why they were more repugnant to Hashem.

The Maharal in the Gur Aryeh here says a very interesting teretz. He says that matzeivos were relatively uncommon, while mizbeichos were universal. Only a thing which is unusual and is then used by ovdei avodoh zoroh becomes assur. Mizbeichos, on the other hand, are universal: they are the natural way to be makriv a korbon. Therefore, the fact that they are used by idol worshipers is no reason to asser them.

Expanding on this, it seems that he is saying that if something is unusual, its use for avodoh zoroh associates it, in people's minds, with avodoh zoroh. But if something is a natural and universal method of worship, its use for avodoh zoroh does not set it apart as related to avodoh zoroh.

This analysis is a point by point reflection of the Lanham Act rule on Trade Dress Infringement, a category of Trademark Law. Trade Dress refers to a way of packaging or presenting a product, or a way of doing business. Examples: The shape of the old glass Coca-Cola bottle; The pink color of Owens-Corning fiberglass insulation; The shape and color of Pfizer's Viagra. Trade Dress can be protected under Trademark law only if the Trade Dress is neither functional nor utilitarian nor generic. Only if the trade dress is non-functional in the product, nor does it serve a purpose in the use or presentation of the product, and it is arbitrary, it might be granted protection. Also, where the Trade Dress is not inherently distinctive, it might acquire secondary meaning and become associated with a particular brand and then be granted protection, such as block letters, certain pictures, or package color. In other words, trade dress that is functional or utilitarian cannot be protected. The U.S. Supreme Court has said that a shape or feature is considered functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” If trade dress is not functional and is not likely to be confused with the previously used trade dress of another product, it can be protected as a mark. However, it must either be inherently distinctive or have acquired distinctiveness. To be deemed inherently distinctive, trade dress must be unique or unusual in the particular product field. Companies vigorously protect their exclusive use of their trade dress, because if another company uses it, it may cause confusion, and consumers will associate the other company's product with their brand.

This analytical protocol matches that of our Maharal. Transposed to our context, we would say that a the use of a Matzeiva for sacrificial service is an arbitrary and distinctive feature, whose use for Avodah Zarah creates secondary meaning associating it with those Avodah Zarahs. A Mizbei’ach, on the other hand, is a generic means of doing avodah, and as such, is neither distinctive nor does it easily acquire secondary meaning. It is not something that sets a particular religion apart in people’s minds. For example, with the Maharal we can explain why wind organs were dropped from our tefillos, but bowing is still muttar.

I saw a well-expressed thought from R’ Nachman Bulman: the context was that when groups whose hashkofos are antithetical to ours adopt/appropriate a thing or an idea, we tend to distance ourselves from that thing or idea; e.g., our not using wind organs because they have become identified with the church. He said, “The Zionists passeled Eretz Yisroel, the Lubavitchers passeled Tzipiso Li’yeshu’o, and Reform passeled Kovod Beis Haknesses. Soon, there will be nothing left for Frum Jews.” (Actually, his words were: “because of Zionists, we can’t love Eretz Yisroel anymore. Because of Lubavitch, we’ve stopped yearning for Mashiach. Because of Reform, we can’t have decorum in shul. If this keeps up, frum Jews will have to give up the whole Torah.” Jewish Action Winter 5763/2002, Toby Katz’s article Who Will Comfort Us?, about her father.}

But now that we have the Maharal’s svara, we can say a tremendous chiddush. Since the Maharal says that the only things that become possul when adopted by Avodah Zarah are distinctive and arbitrary elements, it could be that it is muttar to behave respectfully in shul! Having respect for a place of worship is not unusual. It is natural and universal to respect your place of worship. Therefore, it might be muttar to behave like dignified and respectful grown-ups in shul.

(The Maharal works well in connection with the general issue of Chukos Ho’amim: This is like the discussion in Tosfos Avodah Zorah 11a d’h “V’ee Chukah Hi, Heichi Sarfinon” and Sanhedrin 52b in the sugyo of Okrin ahl ham’lochim, on the topic of a minhog which we have that goyim begin to do in their religion. See also Sifrei Shoftim 146, the Ramo in Yoreh Deah (178:1) based on the Ran in Avodoh Zoro 2b Sorfin that anything with a logic is muttor, the Gra there that asks on the Ran from the gemora in Sanhedrin (52b) where the logic of performing the mitzva of hereg only with the specific sword requires a possuk to get out of the problem of chukos HaGoyim, because according to the Ran, a possuk would be unnecessary since the only issur of chukos HaGoyim is when you follow them blindly without a reason and by hereg, the preference for a cleaner death is certainly applicable. Rav Ovadia Yosef (Yabia Omer III,24) and Rav Zolti (Noam, II, p. 161-170) both say that the Machlokes between the Ran and Tosfos, or the Ramo and the Gro, is whether we follow the sugyo in AZ or in Sanhedrin. Also the Taz in Orach Chaim 8 that says that because of Chukos Hagoyim it is a chiyuv d'oraiso to wear a yarmulka, and the Malbim in Artzos HaChayim 2:43 who says that the Taz is not like the shittas hoRamo in Yoreh Deah 178:1, and see R Moshe in OC I:4.)


  1. Lanham_Act:

  2. Thanks for the Mareh Mokom. If I ever give a shiur on it in a beis medrash, I will be sure to list it next to the Maharal and Jewish Action.

    But-- seriously, I'm glad that someone, albeit anonymous, actually read this.

    I'm not sure whether the point of the vort is to shed light on the Lanham Act, or to make the Maharal more understandable from a real-world perspective, or that the Maharal would have made a great intellectual property lawyer, or just to point out that seichel hayoshor is yoshor in all contexts.

  3. As a law student and a person who often davens in Shuls, I very much appreciate this tounge-in-cheek vort. It's a great explanation and a creative critique at the same time. Glad I added you to my google reader.

    -Dixie Yid

  4. Thank you, DixieYid. When you do law review, if you do Trade Dress protection, good luck on the form of citation.

    I am doubly pleased that at least two people read, and enjoyed, the weird connection. It's not easy going through life with a quirky sense of comedy that elicits, more often than laughter, quizzical looks.

  5. So give me a brocha that I should make law review!

    -Dixie Yid

  6. Dixie Yid, two problems.
    First, bracha requires the physical presence of both parties. Second, it's not necessarily a good thing to be on Law Review. It tends to greedily consume whatever remains of your life, as does associate-ship at big firms. It's great for the people for whom the law is central to their lives, or who are brilliant enough to handle the demands on their time and keep their heads screwed on correctly. But you have my best wishes that you get what's best for you.