TOPICS IN HALAKHA

 

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This week’s shiurim are dedicated by Mr Emanuel Abrams
in memory of Rabbi Abba and Eleanor Abrams

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In memory of our father Moshe Eliezer ben Avraham Yosef by Isaac Ely and Naomi Stillman

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Dedicated by Linda and Bernie Weiner

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Shiur #01:

Halakha, Reality, and the Relationship between Them

 

By Harav Baruch Gigi

 

 

            When R. Sa’adya Gaon addresses the issue of the eternity of the Torah in his Sefer Emunot Ve-De’ot (part III), he writes:

 

The Torah also says (Devarim 33:4): “Moshe commanded us a Torah, the inheritance of the congregation of Yaakov.” Furthermore, our nation is a nation only through its Torahs. Since the Creator said that the nation will exist for as long as the heavens and the earth are in existence, its Torahs must perforce exist all the days of the heavens and the earth. This is what it says (Yirmiyahu 31:34-35): “Thus says the Lord, who gives the sun for a light by day, and the ordinances of the moon and of the stars… If those ordinances depart from before Me, says the Lord, then the seed of Israel also shall cease…”

 

            A precise reading indicates that R. Sa’adya Gaon speaks of “Toroteha,” “its Torahs” – i.e., two Torahs, the Written Law and the Oral Law. God gave the Oral Law for the purpose of developing “Torat ha-adam,” affording man a role in the creation of the Torah when confronting God’s word and the halakhic problems that arise over time. Chazal’s statement, “It is not in heaven” (Bava Metzia 59b), is a fundamental principle, because the Torah was meant to be and must always be a living Torah.

 

            In addition to the Written Law, God chose to give us the Oral Law, which contains the principles and tools that make it possible to observe the Torah and live before God in the light of Torah despite changing circumstances. This is how the Meshekh Chokhma explains a puzzling gemara in Menachot 29b. The gemara recounts:

 

When Moshe ascended on high, he found the Holy One, blessed be He, engaged in affixing crowns to the letters. Moshe said: “Lord of the Universe, who stays Your hand?” He answered: “There will arise a man, at the end of many generations, Akiva ben Yosef by name, who will expound upon each jot and tittle heaps and heaps of laws.” Moshe said: “Lord of the Universe, permit me to see him.” He replied: “Turn around.”

 

Moshe went and sat down behind eight rows [and listened to the discourses upon the law]. Not being able to follow their arguments, he was ill at ease, but when they came to a certain subject and the disciples said to the master, “Whence do you know it?” and the latter replied, “It is a law given unto Moshe at Sinai,” he was comforted.

 

Thereupon he returned to the Holy One, blessed be He, and said: “Lord of the Universe, You have such a man and You give the Torah by me?” He replied: “Be silent, for such has arisen in My thought.”

 

The Meshekh Chokhma explains:[1]

 

What this means is that man has free will, and that God’s foreknowledge (when it is not revealed to man) does not determine man’s choices. Only man’s knowledge determines his choices. God, with His infinite knowledge, sees the future as the present exactly alike. This is the meaning of the Tetragrammaton – that these three tenses (past, present and future) are the same to Him, the one not coming before the other, something that man cannot comprehend.

 

God saw that in accordance with Israel’s situation, they would assimilate while in exile in Babylonia and half would speak Ashdodite, and this would cause the Torah to be forgotten. He knew that in accordance with the time and for the survival of the nation, it would become necessary to prohibit food cooked by gentiles. The Torah alludes to this (Devarim 2:6; Avoda Zara 37b): “You shall buy food of them for money.” This does not mean that [the prohibition against eating food cooked by a gentile] is a Torah law, only that God, with His knowledge of the future and in His agreement with the enactments of the future leaders of the nation, alluded to it in His supernal wisdom by way of crowns [of letters] and the like. No man can understand this in advance before it happens, for if he would know this, there would be no free will, and they would be forced to marry gentile women [namely, they would be forced to create the problem that necessitated the enactment], and the like.

 

This is the meaning of the reference to Akiva ben Yosef, the way he interpreted the letter vav in the word “u-gerusha” to include a chalutza (Yevamot 24a), and the like. After the Sages instituted a prohibition based on the state of the nation and the religion, he found that God’s supernal knowledge of the future alluded to it in the Torah. This is what the gemara means when it says that Moshe was unable to follow their arguments, for he could not have understood; had he understood, his knowledge would have forced him to act in a certain way.

 

This also explains the concluding phrase, “Such has arisen in My thought” – [R. Akiva] did not expound things that were not My intention, or that I didn’t allude to in the Torah, but My thoughts do not necessitate choices. Such has arisen in My thought, but you cannot know this; however, after the matter turns into reality, it will be revealed to R. Akiva and his colleagues.

 

            What emerges from this is that God “planted” elements (“crowns”) in the Written Law that could be used at the appropriate time in the future, and He opens the eyes of the Sages living in each generation, “the judge who will be in those days,” providing them with a new perspective that sheds new light on halakhic reality.

 

            God could certainly have written a better, more precise and more perfect Shulchan Arukh, but He nevertheless wanted that book to be written by R. Yosef Karo. God wants our Torah, the Torah of man, because it is what enables us to live in its light. This being the case, the way to deal with that Torah is first and foremost through contemplation of the real world. Since the Torah is a living Torah, contemplating the world is an inseparable part of that process. My revered teacher, Harav Amital zt”l, once said that if halakhic decisors do not contemplate the world with open eyes, they turn the Torah into an autistic Torah, God forbid.

 

            Our study of the Oral Law is filled with concepts alluding to movement. We study Talmudic sugyot (s-g-y, walk, progress), we analyze the material and arrive at the Halakha (h-l-kh, walk, go), and when the posekim disagree, we find that the minhag (n-h-g, lead) follows a particular opinion. All of these terms point to a connection between the source and that which develops from it, because things go forth from the beginning to the end, and no less than this to movement and flowing with natural, contemporary life.

 

            A posek’s need to be attentive to changing realities demands true and honest confrontation. The starting point of any such discussion lies in his motivation: to reveal the will of God in the new reality. From here one can adopt different approaches to problem solving, in the framework of halakhic limitations, based on absolute commitment to the word of God, on the one hand, and to honesty and sensitivity, on the other.

 

            Tools exist that make such confrontation possible within substantive and communal limitations. The difficulties that a posek encounters are on two levels: the objective fundamental level and the subjective technical level.

 

            On the objective level, the posek notes that the world is complicated and the problems are complex. In the absence of mechanisms for discussion and clarification of the relevant issues, proposing the proper considerations demands modesty and humility before the great authorities of earlier generations. Similarly, adapting the Talmudic discussions to current reality is not at all smooth and simple; it is often quite complicated.

 

            On the subjective level, the posek strives to preserve the integrity of Halakha and the commitment to it, to preserve the unity of the Jewish People, and to maintain a proper and delicate balance between sensitivity to people’s needs and identification with their distress, on the one hand, and responsibility to the heavy yoke of Halakha and its faithful transmission from one generation to the next.

 

            The rabbi-posek-leader must seriously weigh all the facts and face reality with courage so that the word of God will be meaningful in his time. The meaningful word of God is also that which creates the balances that are necessary for properly weighing the challenges that a rabbi must deal with.

 

            I often hear people saying, “Were there a Sanhedrin in our time, surely it would decide to permit this thing or that.” And I say that, indeed, this is certainly possible, but I can also imagine the no less reasonable possibility that the aggregate of considerations would bring them to forbid things that are currently permitted, as fences around Torah prohibitions or as moral and social norms that seem right to them. I wish to remind all of us that the world of Halakha is replete with decrees issued by the Sages, and to a certain degree we lack today the authority to issue such decrees. What I mean to say is that the idea that Halakha is fossilized today in one direction – namely, that it only forbids and does not permit – is incorrect. Our current problem is two-way, and I await serious confrontation that takes into account the entirety of considerations, including social and communal considerations.

 

            The challenges facing contemporary posekim are varied and diverse. Generally speaking, there are two types of challenges. There is the technological-scientific challenge in various realms: questions relating to the laws of Shabbat, the food industry, medical problems, fertility issues, and the like. The challenge here relates primarily to halakhic questions and study of scientific and technological progress, along with thorough study of the halakhic sources, and the attempt to bring them into closer congruence. In general, we are not dealing here with problems involving radical changes and challenges to the existing social and moral structures. Disagreements arising in these contexts are straightforward and relate to legal principles and their application, but generally lack complicated emotional baggage (other than ethical questions, especially those involving genetic engineering, where exceedingly weighty questions arise).

 

            The other major challenge is dealing with sensitive issues relating to changes in society and the family. Here, the process cannot limit itself to purely halakhic considerations; it must also address the moral and communal dimensions of the issues.

 

            Changes in living conditions can and should impact on Halakha. Let us begin with a few simple cases. Eating habits have changed, and this affects the laws of blessings. People’s daily routine was utterly transformed when the technological advance of harnessing electricity turned the night into day. The industrial and social revolutions that created the culture of leisure and free time influence laws relating to the times of the day.

 

In this context, let me add that changes relating to the way that newlyweds celebrate their marriage should also impact upon the laws of sheva berakhot. Among all these issues, we should also discuss the changes in the status and role of women in society, which present exceedingly sensitive halakhic and communal challenges in the realm of the relationship between man and God and in the monetary realm – for example, the financial partnership between spouses, pre-nuptial agreements, and the like.

 

            I would like to illustrate the matter in clearer fashion with several specific examples.

 

            The times for Shema and the Amida prayer: A graduate of our yeshiva accepted a rabbinic position in London in a synagogue where the customary practice was to reach the Amida prayer on Shabbat morning at around ten o’clock. Even according to London time, this timing is highly problematic for anyone who is particular about praying at the proper halakhic time. This rabbi asked me whether he should change the practice and insist that from now on Shacharit would begin at eight, or perhaps it would be better to leave the situation as it was. I was inclined to think that were the service to begin earlier, attendance would drop significantly, and that such a change in a community long accustomed to praying at a later hour would surely give rise to a stormy dispute.

 

A responsum of the Terumat Ha-Deshen (no. 1) is particularly relevant in this context. I attach great importance to the fact that this responsum is found at the very beginning of his book, for it deals with the issue of how to deal with a clash between Halakha and life. In this responsum, the Terumat Ha-Deshen addresses the common practice in Europe – and especially in northern Europe, where the sun sets at a very late hour during the summer months – to recite the Ma’ariv service long before nightfall, which is defined by the appearance of three stars. He reports that it was the customary practice in his community to recite the Ma’ariv service on Friday night, go home to eat the Shabbat meal, take a walk along the river, and then go home – all this before sunset. He tries to find halakhic justification for the practice, but at best succeeds in advancing the time when it is possible to recite the Ma’ariv service to about two hours before nightfall, but no earlier. What, then, did the Terumat Ha-Deshen do? At the beginning of the responsum, the Terumat Ha-Deshen notes that the community’s rabbi, who was an important Torah personality, also acted in this manner, and so the community certainly had an authority upon whom to rely. He rules in practice that they may continue to conduct themselves in accordance with their custom. Moreover, even one who was accustomed to piety and stringency was permitted to follow the accepted practice!

 

I am not at the level of the Terumat Ha-Deshen, and I did not tell the rabbi in London that the halakhic times for prayer are unimportant, but I wish to point out one fundamental point: Our daily routines are immeasurably different than the routines followed in ancient times, when people lived their lives in accordance with sunrise and sunset. The prescribed times for Shema are subject to a disagreement among the Rishonim, who discuss whether these times are determined by the astronomical times of sunrise and sunset, or perhaps by the times when people ordinarily wake up in the morning and go to sleep at night. In the ancient world, these times were, of course, more or less parallel, but nowadays, people do not go to sleep at the time of nightfall, neither in winter nor in summer.[2] I told that rabbi that since the common practice in his community was that people naturally wake up later in the morning, and that this is their “time of rising,” they have on what to rely, especially in light of the real danger that people would stop coming to synagogue altogether. In addition, I told that rabbi that he should pray together with the congregation, but that he should rise early and recite Shema at the proper time.

 

I even found support for viewing late rising on Shabbat as a legitimate factor that may be taken into consideration. The Mordekhai writes:[3]

 

Regarding the common practice that throughout the week people wake up early in the morning to go to synagogue and pray or to learn, whereas on Shabbat they sleep later in the morning – this is the reason. Regarding weekdays it says concerning the daily offering brought in the morning, “in the morning, in the morning,” whereas regarding the daily offering brought on Shabbat, it does not say, “in the morning,” but rather, “on the day of Shabbat.” This wording implies a later hour, as may be inferred from Yoma (33b). Ri ben R. Yehuda heard this argument in the city of Rome, in the name of R. Hai Gaon.

 

            Were it clear that the prescribed times for Shema depend upon rising and lying down, it would be appropriate to open a more fundamental discussion and establish clearer parameters for “rising” and “lying down.” But since many Rishonim maintain that the times depend upon day and night, the matter becomes more difficult and complicated.

 

            The blessing on sweet challa: Every Friday, I go to the local grocery to buy challot for Shabbat. I belong to the Sefaradi community, and I personally like to buy sweet challot for Shabbat. The grocer, a God-fearing man, once asked me: “But surely you cannot buy such challot, for as a Sefaradi, you must recite over them the ‘bore minei mezonot’ blessing.” I told him that I was well aware of what it says in the Shulchan Arukh,[4] but nevertheless I recite the “ha-motzi” blessing over such a challa, even if I do not eat a measure that establishes a meal.

 

I recite the “ha-motzi” blessing over sweet challa because, in a most natural manner, this is the challa with which I honor the Shabbat. It is possible to speak about the quantity of sugar in the challa, and so indeed we find in the discussions among the posekim, but I think that our reality provides us with new perspectives on the matter. In my humble opinion, the relevant question is whether this is bread that is generally eaten in the context of a fixed meal, or to put it differently, is it “food” or a “snack”?

 

Here, however, I wish to state clearly that there are clear limits and great caution is necessary. One can only propose such arguments if one is fully fluent in all the details of the issue and if one is familiar with the personalities involved – only then can one entertain such considerations.

 

            Sheva berakhot for Sefaradic couples: The issue of sheva berakhot for Sefaradic couples is discussed at length among the posekim. Based on the Talmudic passage in Sukka 25, many Rishonim maintain that sheva berakhot are only recited in the wedding chamber, because there is where the chief rejoicing takes place. This is, in fact, the ruling of the Shulchan Arukh.[5]

 

It seems to me, however, that today the primary rejoicing of bride and groom takes place in the various places where meals are arranged in their honor, and it is therefore possible and fitting to recite the sheva berakhot anywhere that the bride and groom are found and a meal is arranged in their honor. On the other hand, I find it necessary to emphasize that sometimes there are no “panim chadashot,” guests who had not participated in previous wedding festivities, and shortly before birkat ha-mazon a neighbor who does not know the young couple is called in to serve as panim chadashot. Apart from the issue of sheva berakhot for someone who had not been present at the meal, it seems to me that such a person does not fall into the category of panim chadashot, and it is better not to recite sheva berakhot in such a situation.

 

            Women’s Torah study: Halakhic literature has been confronting this issue in recent years, ever since women emerged from the domestic framework that lacked formal education and began to receive more formal educations. When women began to receive formal education, the question of women’s Torah study arose, and we find two main approaches. I refer not to those who believe that women must not budge even an inch from that which is written in the Shulchan Arukh, but rather to those who are ready to examine the issue in a thorough manner and respond to the challenge that the new reality sets before us.

 

The great majority of posekim, including the posekim of our generation, follow one approach. These posekim advocate a policy of adapting the written rulings to reality, based on an attempt to bypass the problem. If, for example, a woman is forbidden to study the Oral Law, we should permit her to study the Written Law; if a father is forbidden to teach his daughter Torah, we should permit her to initiate the study;[6] and the like. Of course, there are more satisfactory answers and less satisfactory ones.

 

According to a second approach – which I advocate, although I admit that the posekim who have adopted it are in the minority – the social reality of our day is totally different. When Chazal said, “Whoever teaches his daughter Torah, it is as if he teaches her frivolity” (Mishna Sota 3:4), they were speaking about a particular situation. I can certainly understand how in their day there was room for such a statement. Women were barred from all realms of learning and the sum of their knowledge was limited to running a household and the laws pertaining to themselves, which they learned not through formal study, but through life. At that time, the danger existed of “I, wisdom, dwell with guile” (Mishlei 7:12). Together with wisdom, a person learns guile, and a great danger exists that the wisdom will be exploited for evil purposes. The same is true today – when a person is exposed to various realms of knowledge in an uncritical manner, when he is not ready to absorb that knowledge in a healthy manner, additional knowledge is actually a stumbling block for him.

 

Today, however, when women participate in all realms of life, in all fields of knowledge, and in every sector of society, Chazal’s statement concerning one who teaches his daughter Torah is no longer applicable. Even if in the past I had hesitations about the matter, today I say, after more than twenty years of experience, that the reality is that most women approach Torah study with utmost fear of Heaven. They desire to know God, and to know God’s word to us at this time and in the world in which we live. I believe that in such a situation, the entire discussion in the Talmudic passage is simply irrelevant.

 

            The issue of women’s role in modern society, in Torah, in the rabbinate, and in the synagogue raises important questions, which must be clarified based on the principles of Halakha and a delicate balance between honest sensitivity to needs and hardships and the danger of undermining societal and familial order.[7]

            It seems to me that those who permit women’s Torah study by finding some sort of loophole or novel explanation are merely “patching holes,” creating pragmatic solutions but not ideological ones. The same applies to issues such as women’s Megilla reading, army service, and the like.

 

Let me clarify what I mean. The halakhic authorities over the generations have proposed pragmatic solutions to many halakhic problems: for example, the heter iska regarding the prohibition of taking interest; the shetar chatzi zakhar to overcome the problem of inheritance for women; the general system of “halakhic wills” that addresses the problems of halakhic inheritance and the reality of today’s family structure; “ways of peace” to permit medical treatment for non-Jews; and the like. In my opinion, these are merely formal mechanisms, but our attitude toward the results of these solutions can and should reflect the ideal position of Halakha in our time. It is clear to all that the heter iska, which is based on the principle of “half loan, half deposit” so that the lender can share in the profits, is a fiction that involves a circumvention of the prohibition of taking interest. In today’s reality, however, where money serves as a commodity and financial trade is an essential element in world trade, the tool of heter iska is a vital and essential tool, and in my opinion, one that it is fitting to use in the case of a business loan.[8] What this means is that even things that enter through the back door can eventually become important foundations under changing circumstances.

 

A distinction must be made between technical tools and essence. Once the technical tool exists, this is a new essence and it must be related to; it reflects the ideal of the time.[9] These pragmatic tools are the tools that God gave man to use so that the heavenly Torah – God’s Torah – should be the eternal Torah here on earth.

 

Attention should be paid to an entirely different challenge facing the posek: the relationship between the person asking a question and the rabbi to whom the question was posed. Recently, the phenomenon of SMS responsa has become widespread. There is a certain positive side to this phenomenon, in that it makes the world of Halakha accessible to young people seeking guidance and direction. It seems to me, however, that the harm it causes outweighs any possible benefit. Many young people cast off all responsibility of dealing with their dilemmas, instead casting everything upon the rabbis, for we are not dealing exclusively with purely halakhic questions. Many of the questions raised combine halakhic elements with elements of personal conduct, social and moral decisions, and the like. Some rabbis even encourage this sort of excessive dependence. In my opinion, it is exceedingly important for the rabbi to leave room in which the questioner can give expression to his unique personality and his struggle with the dilemma facing him. The rabbi must strive to bring the questioner to a point where he stands on his own two feet instead of leaning on the rabbi.

 

A visiting twelfth-grader once complained to me that students come to a yeshiva in search of a clear and unequivocal statement that will lead them to a certain place, and he did not feel that our yeshiva was providing this. I responded to him that I, too, like a clear position, but I want each individual to construct his own position for himself. We, therefore, try to provide varied tools and perspectives, such that in the end one can make his own decisions, and I hoped and expected that this student, too, would arrive at his own decisions based on his own principles.

 

To a certain degree, the rabbi must relate to the person posing the question as if he were a needy person asking for charity. Chazal have already taught us, as codified by the Rambam:[10]

 

There are eight levels of charity, each greater than the next. The greatest level, above which there is no greater, is to support a fellow Jew by endowing him with a gift or loan, or entering into a partnership with him, or finding employment for him, in order to strengthen his hand until he need no longer be dependent upon others. It is thus written: “Then you shall strengthen him, although he be a stranger or a sojourner, that he may live with you” (Vayikra 25:35). That is to say, strengthen him so that he not fall and become dependent upon others.

 

Accordingly, the highest level is to stand a person upon his own feet and provide him with the tools that will enable him to deal with his questions and uncertainties on his own. It is clear to me that this comparison is only partial, for there will always remain purely halakhic matters that not everyone has the knowledge to deal with, and there are also different types of people with different levels of need for help. This comparison can, however, teach us this fundamental principle, based on the knowledge that there are different levels in the case of charity as well.

 

            Even when we come to purely halakhic questions, there is still great value to the personal relationship between the questioner and the posek, which is lacking in SMS responsa. Halakha contains an element of maneuverability that matches the answer to the specific questioner and his unique circumstances, and it is impossible for this to receive expression when a question is posed anonymously. A major problem arose in the sixteenth century when R. Yosef Karo wrote his Shulchan Arukh and the Rema added his notes to it. Great opposition arose against the work, the arguments being many and varied. Objections were raised against the way the book was written, against its method of halakhic decision-making, and against its very writing. One of the main arguments was sounded by R. Chaim ben R. Betzalel, the brother of the Maharal of Prague. He claimed that the writing of an orderly book of Halakha impairs the important encounter between questioner and rabbi. Halakha turns into a written code, rather than an interpersonal connection. In the end, however, the Shulchan Arukh did not fossilize the world of Halakha and did not nullify this important encounter, as is demonstrated by the extensive responsa literature that developed over the course of time since the writing of the Shulchan Arukh.

 

            Based on this, I often say that the Mishna’s counsel in Pirkei Avot, “Make yourself a rabbi,” means that a person should develop an intimate relationship with his rabbi, who should be familiar with the personality, needs and abilities of the person asking him a question, so that he should be capable of providing guidance suited for the person’s specific circumstances. This includes the possibility that one questioner will receive general guidance and another will receive a specific ruling.

 

            In the end, it is clear that the community’s and rabbis’ readiness to act sincerely out of total commitment to God’s word and will, in the sense of “And I shall betroth you to myself forever” (Hoshea 2:21) – accompanied by truth and faithfulness, kindness and mercy – will lead to an evolutionary, rather than a revolutionary, process of “and you shall know the Lord” (ibid. 22), i.e., knowledge of the word of God for which we pray each and every day: “Restore our judges as at first, and our counselors as at the beginning.”