Eating a bit before megillah / maariv

Based on today's Shivti seder.

If you tell me something is assur, I want to see it in the gemara and Rishonim. Today's discussion was about snacking a bit, as opposed to eating a full meal, and how it was prohibited. I was not convinced, based on the presentation, that such a prohibition exists.

The first focus was on the first Mishna in Berachot and on the ensuing gemara on 4a-b. The Mishna set out the time for keriat Shema at night, with the Chachamim saying until midnight, and Rabban Gamliel teaching that the time is really until dawn, and even that the Chachamim who say until midnight said so as a fence.

The gemara on 4a-b elaborates on the nature of this fence by citing a brayta:

והא דקא אמרי עד חצות כדי להרחיק את האדם מן העבירה 

כדתניא חכמים עשו סייג לדבריהם כדי שלא יהא אדם בא מן השדה בערב ואומר אלך לביתי ואוכל קימעא ואשתה קימעא ואישן קימעא ואחר כך אקרא קריאת שמע ואתפלל וחוטפתו שינה ונמצא ישן כל הלילה אבל אדם בא מן השדה בערב נכנס לבית הכנסת אם רגיל לקרות קורא ואם רגיל לשנות שונה וקורא קריאת שמע ומתפלל ואוכל פתו ומברך

and the fact that they say until midnight is in order to distance a person from transgression. 

As it was taught in a baraita, the Rabbis created a “fence” for their pronouncements with regard to the recitation of Shema in order to prevent a situation where a person comes home from the field in the evening, tired from his day’s work, and knowing that he is permitted to recite Shema until dawn says to himself: I will go home, eat a little, drink a little, sleep a little and then I will recite Shemaand recite the evening prayer. In the meantime, he is overcome by sleep and ends up sleeping all night. However, since one is concerned lest he fall asleep and fail to wake up before midnight in order to recite Shema at the appropriate time, he will come from the field in the evening, enter the synagogue, and until it is time to pray, he will immerse himself in Torah. If he is accustomed to reading the Bible, he reads. If he is accustomed to learning mishnayot, a more advanced level of study, he learns. And then he recites Shema and praysas he should. When he arrives home, he eats his meal with a contented heart and recites a blessing.

While the maggid shiur presented this as a separate fence / gezeira from that of the Mishna, I think that the plain meaning of the gemara is that this is the exact same fence. As Rashi writes ad loc.,

מן העבירה - שמא יסמוך על שהות שיש לו כדתניא:

That is, Rashi explains that the Chachamim setting midnight as the end time is to distance a person from sin, for one will rely on the fact that he has time, as is written in the ensuing brayta.

If so, the fact that someone will procrastinate and eat a bit, drink a bit, nap a bit, and so on, are not new and individual prohibitions, but rather explaining what will happen if the person thinks he has time. As per Rashi, the brayta is expanding on the fence of the Mishna and saying what will happen. And by saying (and misleading? decreeing?) instead that there is a closer time, this will influence people to go to shul, learn, say Shema, daven, and only then eat a meal.

That does not indicate that the bit of eating is itself forbidden.

The source presented (in Shivti) that it was in fact forbidden was the top Tosafot on the daf:

וקורא קריאת שמע ומתפלל - מכאן משמע שמשעה שהגיע זמן קריאת שמע של לילה שאין לו לאכול סעודה עד שיקרא ק"ש ויתפלל ערבית:

But, as we noted immediately, Tosafot said le'echol seudah, to eat a meal until he reads Shema and prays Maariv. This is not necessarily the same as the ochel kim`a, eating a little bit, of earlier in the gemara.

Further, we should pay attention to the dibur hamatchil. What part of the gemara are Tosafot commenting upon when they say mikaan mashma? It seems like it is the end of the brayta, that the effect will be that someone will end up first saying Shema, then praying Maariv, and only then eating a meal. (And see the iba'it eima of the gemara that this is according to the position that davening Maariv is not something optional.) That is, it is going on ואוכל פתו, rather than the earlier ואוכל קימעא. I don't think you can derive from here a prohibition on snacking a bit. And the prohibition on a full meal is fully in line with the prohibition we saw in masechet Shabbat, about eating (a full meal) prior to keriat Shema.

I am not the only one to read closely like this. Look at the Rosh on this gemara.

When citing the gemara, he omits the final words ve'ochel pito umevarech. On the spot (note ס), we have Maadanei Yom Tov who comments:

That is, that the Rosh omitted these final words. But Tosafot were medakdek on those very words that one should not eat a meal until he read Shema and prayed. And even the Rosh agrees to this, except that here he is going after the girsa of the Rif.

We can see the words of the Rif here, and I get the same sense, that there is no innovated prohibition of eating a bit, but rather the one gezeira we are speaking of is the time of midnight:

However, this that Rabban Gamliel said {that you can say the entire night} and this that R Shimon ben Yochai said {that the night one you can fulfill right before either dawn or sunrise} is bedieved - after the fact - and even if you did so willfully {bemeizid} and read keriat Shema before dawn you will have fulfilled your obligation, even though you are not permitted to do this, for we learnt in a brayta {Berachot 4b}:

The Sages made a fence to their words in order that a man should not come from the field in the evening and say 'I will eat a bit, drink a bit, and sleep a bit, and afterwards I will read Shema and pray' and if sleep snatches him he will have slept the entire night; but rather a man should come from the field and go to the house of gathering {shul} or the house of study - if he is used to reading {Scripture} he should read, and if he is used to learning he should learn - and afterwards read the Shema and pray. And all who violate the words of the Sages is liable the death penalty.

You are not permitted to delay until after Chatzos, and the brayta is brought for elaboration. I see no indication that prohibiting eating a bit, in and of itself, was a decree from Chazal.

So too, in the Tosafot HaRosh, he says the same thing as Tosafot, that one should not begin the seudah. And I took pains to point out during the shiur that we have to pay careful attention to the dibbur hamatchil, which in this case is explicit that it includes ואוכל פתו ומברך.

I don't think that Rashi on the daf, defining terms, is a clear-cut introduction of a prohibition. He writes:

קימעא - מעט:

We should not produce from here a machlokes between Rashi and Tosafot as to what is being prohibited. Even Tosafot know what the word kimi`ah means. They aren't arguing a definition in terms. Rather, Tosafot don't see any prohibition here, just and explanation of the procrastination that the person will do. And Rashi can agree with this as well, that this is an explanation of what the person will say and do as he procrastinates, if he thinks he will have time. It is just that, entirely separate from this, Tosafot and Rosh look at other words at the end and derive a prohibition on starting an entire meal, even before Maariv.

Maybe we can see such a decree in the words of the Rambam, though.In Hilchot Tefillah 6:7, we have:

ז  אַף עַל פִּי שֶׁתְּפִלַּת הָעֶרֶב רְשׁוּת, לֹא יָבוֹא אָדָם מִמְּלַאכְתּוֹ וְיֹאמַר, אֹכַל מְעַט וְאֶשְׁתֶה מְעַט וְאִישַׁן קִמְעָה, וְאַחַר כָּךְ אֶתְפַּלַּל--שֶׁמֶּא תֶּאֱנֹס אוֹתוֹ שִׁינָה, וְנִמְצָא יָשֵׁן כָּל הַלַּיְלָה; אֵלָא מִתְפַּלֵּל עַרְבִּית, וְאַחַר כָּךְ אוֹכֵל וְשׁוֹתֶה אוֹ יִישַׁן.  וּמֻתָּר לְהִסְתַּפַּר וּלְהִכָּנֵס לַמֶּרְחֵץ, סָמוּךְ לַשַּׁחְרִית, מִפְּנֵי שֶׁלֹּא גָזְרוּ אֵלָא סָמוּךְ לַמִּנְחָה שְׁהוּא דָּבָר הַמָּצוּי, שֶׁרֹב הָעָם נִכְנָסִין בַּיּוֹם; אֲבָל בַּשַּׁחַר, דָּבָר שְׁאֵינוּ מָצוּי, לֹא גָזְרוּ בּוֹ.

However, I don't think that even this needs to be a prohibition. The brayta was explaining the reason for the gezeira of until midnight, because they feared people would do this. They were thus coralling people away from falling into this trap. And the implication is that, totally separate from this, it makes sense that one should not fall into this trap. There is the correct hanhagah, and that is what one should follow, and that is why Rambam encodes it.

Even so, I would not say that this is a gezeira, and that this is an issur deRabbanan.

The result of all of this is that I don't think that it is correct to turn around and (like the Terumas HaDashen), in places of need, such as hearing a late Megillah reading after a long fast (which Chazal would have not have held of, since it is Yom Nikanor), that there is a gezeira that one cannot nibble on something.

That is my reading of the sources, though various Acharonim apparently read this differently.


Update: Here is a lengthy Artscroll footnote on the subject, which shows how others read differently. Bli neder, I will address in a follow-up post. Note that it is Rif (as explained by the Rashba) rather than just plain Rif. The Rashba is here and the (later, meaning siman 9) Rosh is here. And Avot deRabbi Natan, illustrating how the phrase asa seyag lidvarav is used as an expression of overstating one's opinion to be more stringent than the actual law, is here.

chamar medina, via Shivti

This morning, I attended a very interesting program at Beth Aaron with my son -- Shivta. Great egg salad and tuna, and a nice topic, namely chamar medina. First there was a chabura with the assistant rabbi, Rabbi Gabbai, and then a shiur continuing on from there by Rabbi Willig.

The presentation of Shivti in their pamphlet is a bit more elaborate than your typical shiur source sheet. The typical source sheet will have either (literal) cutouts from various gemaras and rishonim so that you see the tzuras hadaf or standard printed text from Bar Ilan. This is a combination, so that each full page is a source, in the original. So we will see the gemara in Pesachim 107a, together with Rashbam and Tosafot, in the full tzuras hadaf, with shading for what they deem the relevant material. And on the bottom, in plain printed text, just the excerpted material.

The order of presentation is also nice. It is chronological, so we start with the relevant gemara and meforshim on the daf, then on to Rosh, Rif, Rambam, and then Tur, Shulchan Aruch, and Mishnah Berurah. A few others in between. The result is that you get to see the development of the ideas and how it is fleshed out or derived from the original sources.

Rabbi Willig presented his take on the sugya and his halachic position that, nowadays, it is impossible to justify using beer or whiskey for kiddush on Shabbat morning. I cannot do it justice, so don't rely on my presentation for an accurate representation of his position. But it can only be used as a substitute (according to Rashbam) where wine or grape juice is not readily available. And according to the Rosh who cites the Rashbam and also says:

ויש מפרשים דחמר מדינה היינו עיר שאין יין גדל בתחום אותנ העיר עד כדי מהלך יום סביב לעיר

that the unavailability (due to what is grown) has to be one of a day's journey around the city limits. And meanwhile, today with airplanes, the entire world is within a day's journey. Also, whiskey and beer are very low on the list, in terms of beverages Americans drink. Water comes first, then soda, then coffee, then beer, and finally milk (maybe among kids).

--------------------------------------

My thoughts on the matter. First, as an aside, in terms of growing, it is certainly not that they did not have wine transportation back in those days. One can certainly point to gemaras of people who went into business to purchase wine in a certain locale, and then the wine prices went down or up.

In terms of understanding the Rashbam, he did not invent of whole cloth this idea of no accessible wine in that city. He gets it from the story in Pesachim 107, that the first time Ameimar came to town, he did not make havdalah on the date beer, and went to bed hungry. And the next day they made efforts and were able to bring him wine, at which point he made havdalah and tasted something. So Rashbam is looking to the unavailability as a requirement, even while other Rishonim might argue.

So too, the position some held, cited by the Rosh, of the unavailability within a day's journey, is also not surprising and without clear basis. Rather, it appears to be a clear outgrowth of the same story, that they only managed to fetch it the next day.

What about today, where every place is accessible? As Thomas Friedman wrote, The World Is Flat, and every place is accessible? I don't think that this matters a whit. Are we concerned here with lechatchila vs. bedieved, such that the only allowance to use this is where you couldn't access the wine? That is one way of looking at it, but the other is that, in terms of respectability of the beverage, this is the equivalent of wine. Where they don't grow wine in that region, and where they typically use this instead of wine, it has the chashivus of wine. That the word is more accessible and one could go further in less time does not change this from being the regular regional drink.

When Ameimar came the second time and they brought him date beer, maybe it made it clear to him that wine was not accessible in the region. Or maybe the repeating bringing for havdalah made it clear to him that they treated it as a respectable drink.

In terms of water (or soda, or coffee) being intermediately popular before whiskey or beer as national drinks, this may indeed differ by region. I would imagine there are areas of the country (like New York) that prefer their Starbucks lattes, and other, rural areas of the country that prefer their beer. Or even neighborhoods in New York.

But see Rashbam (ad loc, in fact same d.h. as before), who also says that water does not count as chamar medina. He says this in the sense that you can't use it as such, even, as he says, in the absence of wine and beer. But I would say that water also doesn't count in chashivus even to disqualify. It should be considered kemi she'eino. Among intoxicating drinks that people treat in the equivalence class of wine, beer is actually more widely consumed than wine. And who cares about water, soda or milk?

So for those who do make kiddush on chamar medina on Shabbos morning, I think there is a way to read through the sources in their defense. (I personally use wine or grape juice, because I can't really stand whiskey or beer.)

Some interesting recent shiurim

First, Rav Herschel Schacter on Vayakhel-Pekudei, from last year.


The first ten minutes are about the equitable division of aliyos across parshiyos, and how maftir counts and could affect this. And how some say if add hosafos, redivide the breaks. And how some say not to add hosafos.

Then, at the 10 minute mark, something of particular interest to me, whether gematria is a "real" middah shehaTorah nidreshet bah. It isn't, but is instead a parperet lachachma, and so various derivations of laws (such as number of number of melachos on Shabbos).

Fifteen minute mark, regarding  (Shemot 35)

כו  וְכָל-הַנָּשִׁים--אֲשֶׁר נָשָׂא לִבָּן אֹתָנָה, בְּחָכְמָה:  טָווּ, אֶת-הָעִזִּים.

26 And all the women whose heart stirred them up in wisdom spun the goats' hair.

and Rashi writes that the women spun when it was still attached to the animal

spun the goat hair: This constituted a superior skill, for they [the women] spun it on the backs of the goats. -[from Shab. 74b]

טוו את העזים: היא היתה אומנות יתירה, שמעל גבי העזים טווין אותן:

That gemara in Shabbos 74b is:

SHEARING WOOL AND BLEACHING. Rabbah b. Bar Hanah said in R. Johanan's name: He who spins wool from off the animal's back on the Sabbath incurs three sin-offerings, one on account of shearing, another on account of hackling, and the third on account of spinning.¹³  R. Kahana said: Neither shearing, hackling, nor spinning is [done] in this manner.¹⁴  But is it not so? Surely it was taught in the name of R. Nehemiah: It was washed [direct] on the goats and spun on the goats:¹⁵  which proves that spinning direct from the animal is designated spinning? — Superior skill is different.¹⁶

Or, in Hebrew / Aramaic:

הגוזז את הצמר והמלבנו:

אמר רבה בר בר חנה א"ר יוחנן הטווה צמר שעל גבי בהמה בשבת חייב שלש חטאות אחת משום גוזז ואחת משום מנפץ ואחת משום טווה רב כהנא אמר אין דרך גזיזה בכך ואין דרך מנפץ בכך ואין דרך טווי בכך ולא והתניא משמיה דרבי נחמיה שטוף בעזים וטוו בעזים אלמא טוויה על גבי בהמה שמה טוויה חכמה יתירה שאני

(R Yonasan Eibeshitz, because of niddah, wouldn't be mekabel tuma). And at the 18:20 minute mark, the gemara Shabbos asks what if someone weaves on Shabbos while it is attached to the animal? And the answer is that it kil'achar yad, because mileches machsheves asra Torah. But meleches machsheves is by the Mishkan, and is derived from there to Shabbos. And weaving was done in the manner described above, on the animal. So how could you say that it isn't meleches machsheves?! Rashi and Tosafot have different approaches to understanding the gemara's answer (Rashi: difference between a master craftsman, who is chayav and a regular person, who is not. Meanwhile Tosafot locally explains that batla daatah etzel kol adam. So one could say that specifically in the Mishkan, for the reason mentioned, it was consider normal, as everyone was doing it this way.)

I say: perhaps we could provide an alternate answer to the setama degemara (who pulled this contradiction with Rabbi Nechemia from Shabbos 99a, rather than this idea being initially local to the sugya): that this is a legitimate dispute among Tannaim, and Rabbi Yochanan holds like Rabbi Nechemiah, and Rav Kahana holds like the Chachamim. The gemara on 99a reads:

Our Rabbis taught: The lower curtains [were made] of blue [wool], purple [wool]. crimson thread and fine linen,²  whilst the upper ones were of goats' [hair] manufacture; and greater wisdom [skill] is mentioned in connection with the upper than in connection with the lower. For whereas of the lower ones it is written, And all the women that were wise-hearted did spin with their hands;³  in reference to the upper ones it is written, And all the women whose heart stirred them up in wisdom spun the goats;⁴  and it was taught in R. Nehemiah's name: It was washed [direct] on the goats and spun on the goats.⁵

But the linkage between braytot is provided by the gemara, with the first brayta leaving the specific nature of the wisdom unspecified.

At the 63 minute mark, about whether we accept archaeological evidence in determining halacha. In terms of the tzitz, which was seen in Rome (yet which the Rambam paskens against the eyewitness report), two lines or one line. And an explanation why. In general we do. For instance, Rabba bar bar Chana should have seen the tzitzis of the generation of the wilderness, and they could have determined halacha on this basis. While Rav Soloveitchik seems to oppose integrating archaeological evidence, and has an explanation to that gemara, Rav Schachter appears to hold otherwise bepashtus.

From this year, a fascinating shiur in the halachos of Purim.

In a leap year: when does one observe a yartzeit, when does one read the megila, and when does one recite al hanisim? When Purim falls on Sunday, when does one fast? Is it proper to handle a megila with bare hands? Should one recite the final pasuk by heart, prior to the ba'al koreh? Does one recite the final bracha without a minyan? Should multiple readers, recite the megila? Should women read for themselves? Can one recite the first pasuk by heart? Can a baki, listen to the megila, without a minyan? Does one need bread, by the meal? Does one need a meal at night? Does one need a shaliach, for shalach manos? Can one recite a shehechianu on Purim, without fulfilling any of the mitzvot? Does one need to recite himself,the ten sons of Haman.

As I understand it, sending the mishloach manos by shaliach is not necessary (you can invite the person to a meal), and if you do send, sending specifically by a gadol is a silly thing to insist upon, because this is all premised on the idea that you yourself giving it would be invalid, so why then insist on shlucho shel adam kemoso.

As a general halachic approach, he seems to take the approach that one should not enter into halachically questionable areas (where it is a matter of dispute, or there is a lower level of fulfillment). For example, having a meal crossing over between Rosh Chodesh and after. Either finish before or start after, vehistalek min hasefek. And especially not in order to obtain dubious gains. For example, splitting up the laining among multiple people, because it is more exciting that way, but there is a machlokes in Shulach Aruch if you are yotzei bedieved. And this is apparently common in women's megillah reading. So too, entering into the argument of whether ten women count as a minyan for the purpose of megillah, such that you are only fulfilling bedieved. And you wouldn't say the beracha of harav et riveinu.

I wonder about this though. When Rabbi Lookstein splits up the megillah among students, despite it not being halachically optimal, it is legitimate and justified, because it is for kiruv, to keep the students committed. So perhaps we can then say that sociologically speaking, within certain communities, women's megillah readings are also at present necessary, as a different type of kiruv. While I think there is merit to this line of reasoning, I could also imagine rejoinders to it. For instance, for a specific subgroup of tenuously committed Jews, it is something of a horaas shaah, with targeted divergence from the norm and use of seichel to find the best approach for this limited scenario. But there is no danger of this becoming mainstream practice. But if splitting up aliyos is part of the way things are done in general in this general institution of women's megillah readings, then it is mainstream practice, and it is a permanent approach rather than an admitted horaas shaah. Or alternatively, perhaps within the wider cultural phenomenon of various groups asserting that halacha is an unfair patriarchal system established by men (meaning humans and meaning males), adopting non-"optimal" halachic practices and establishing that as a lechatchila halacha (or even bedieved practice) in order to satisfy this motivation would not be considered a laudatory goal.

Rabbi Hayyim Angel, in Megillat Esther: What they didn't teach us in day school. And Mekoros for it.


The actual discussion is at the 7:20 mark. Step 1: Don't think midrash is in the text. Pull down in order to build up. Examples:

1. Haman's ancestor: Amalek. From Agagi. (Agag was perfectly normal Persian name.)
2. Mordechai: From Shaul. Ben Kish. (Could say going back only 3 generations. Ibn Ezra: Why not say ben Shaul?)
3. Religious state of Jews at the time as bad. Temple vessels, celebrating non-rebuilding. (But maybe just celebrating power of the king. But see how they listen to their leaders and fast. [I don't find this convincing. They knew at that point that there was danger to their life.] Haman accuses them of following their own laws. Opposite of assimilation. Gives midrash to emphasize this peshat point. Gives midrash from gemara in which Rashbi rejects idea suggested by students that punishment for Jews of world for participation of party. But dealing with q of why did they deserve it. Nothing distinctly Jewish in megillah.
4. Why didn't Mordechai bow? Idol around his neck. Ibn Ezra says the same to explain it. (But not in text. Pagan festival is drawn date. But irrelevant. [Couldn't it be relevant on peshat level but only obvious to immediate readers in that generation?]) We have no idea why he is doing it.

Rebuild. Whole chapter of initial party to create vacancy for queen. Taxes in chapter ten, why? He suggests nobody matters (Mordechai vs. Haman) but Achashverosh. Hamelech appears statistically significant. Hashem named zero times. Hester Panim. Achashverosh replaces God. Reread Achashverosh's glory instead of that of Hashem. So we should be heartbroken that this is not about the Bet Hamikdash. Fasting to plead for lives. With Achashverosh rather than Yom Kippur. Palace instead of Bet HaMikdash. That is the point of all those midrashim. Mordechai paraded around. Yet still slated for destruction, so doesn't matter. Haman hanged, and king feels better, rather than reaction of Jews. Death decree still in effect. No Sasson until Mordechai has king's ring. Midrash of Ish Tzar VaOyev, she started pointing to the king. He is the real culprit, while Haman is the front. Midrash on Hu Achashverosh, from beginning to end. No character transformation, despite what you might think. So Mordechai didn't bow, fighting not just against Haman but against Achashverosh. Representative of world-view and how morality in world should be. Ch 10 is that still servants of Achashverosh, no better off.

A few respectful answers for Dov Bear

A recent post on DovBear (and on Facebook) was presumably partly prompted by my own recent post of Rav Schachter's letter regarding women wearing tefillin.

[EDIT, removed a pic and paragraph]

DovBear's post starts as follows:

But I do know how to work both Google and the much maligned Bar Ilan-search, plus I have seen a few pages of shas. And the combination of those experiences have left me with a nagging doubt about the central argument Rav Shachter presented in what the blogs are calling his "tefillin missive" So let me raise my hand, like a good talmud [sic], and pose a respectful question.

DovBear sets up the division between Perushim (who were meticulous about tahara) and Amei HaEretz (who were not). DovBear then equates the year-round rejection of teruma from Amei HaAretz (because of ritual impurity) with what he identifies as Rav Schachter's central argument, avoiding sectarian practices. (I am personally not so convinced that there is a valid equation / analogy.)

Then,

But the analogy shatters when you recall that the rules were different on holidays. On holidays the amei haaretz and their food were accepted by the persuhim with love. All stringencies were suspended. Efforts were made within the bounds of halacha to accommodate the ammei haaretz. Why? Because the sages feared that the amei haaretz would go off and start their own sect if they weren't made to feel welcome in Jerusalem on holidays...

My questions, therefore, are as follows: Why is Rav Shachter demanding that we take a stand against Conservative Judaism, when the "offenders" belong to Orthodoxy? Why aren't we concerned, as the Sages were in the example I cite, that taking such a strong stand, and one punctuated with such robust language, might drive the "offenders" out of Orthodoxy, and contribute to the development of yet another sect? And, finally, shouldn't preventing the development of new Jewish sects be our overarching concern? 

But read his whole post.

While I think there are good answers, by which one can distinguish the case of allowing women to wear tefillin and the trusting of Amei HaAretz for teruma during chagim; and further to argue that this is not what the gemara is saying (e.g. rather that the fear of a single Tanna only, was that during the entire year, if they did not accept the wine libations of an Am HaAretz, he would not chas veshalom start his own sect but instead seek another way to libate, by building a private altar, during the time when private altars were forbidden) -- I don't think this is the right response to offer up, at least initially. The right response is methodological.

Though I am not Rav Schachter, I would attempt the following responses, in part drawing from what Rav Schachter already wrote.

1)

והתפלאתי לראות היאך שאנשים בעלי שכל מפלפלים פלפול של הבל בקשר לנדון נשים אם רשאות להתנדב (בתורת אינה מצווה ועושה)לקיים מצות תפילין, והראו פנים לכאן ולכאן,ודנו כאילו היינו חיים בתקופת התנ“ך(שהביאו ממיכל בת שאול), או בתקופת התנאים(שנחלקו התנאים אם נשים סומכות רשות), או בזמן הראשונים (שפלפלו לגבי בנותיו של רש“י). אכן בעו“ה- חיים אנחנו- בשנת תשע“ד- בתקופת מרד המינים נגד התושבע“פ כשהנהגה זו – עטיפת טלית והנחת תפילין – מצויה אך ורק אצל הקונסרבטיבים, שכל הגישה שלהם להלכה מבוססת על היסוד שאכן מותר – ואף חיוב יש – לשנות מדרכי המסורה ע“פ רצונם וניהוגם של ה“עמא דבר” כל עוד שיש להם איזה “מקור” לדבר, ודוקא נקודה זו היא היא ההבדל בינם לבין האורטודוקסים.

I was shocked to see how otherwise intelligent people are engaging in pilpulim, vain pilpulim, dealing with whether or not women may voluntarily perform the Mitzvah of Tefillin (in the manner of “not commanded but fulfilling it anyway”). They have marshalled opinions both this way and that way, and judge things as if we were living in the period of the Tanach (as they cite precedence from Michal Bas Shaul), or in the period of the Tannaim (where the Tannaim debate regarding whether women may voluntarily lay on hands), or in the period of the Rishonim (who debated things regarding the practices of Rashi’s daughters).

However, in the abundance of our sins we live in the year 5774 – in the time period of the rebellion of schismatic movements who fight the oral law.

It is a time when this practice of [women] wearing Talis and Tefillin is found exclusively with Conservative Judaism, where their entire approach to halacha is founded upon the principle that it is permitted – even an obligation to change from the path of our traditions according to the whims and practices of “how the nation conducts itself” whenever there may be any trace of a source to the matter. It is this particular point which is the essential difference between them and the Orthodox. 

To extract one point from this, he is saying that it is not legitimate to cite random and rare gemaras ("any trace of a source") in order to bolster a predetermined and pre-desired outcome. What is the mainstream halachic view as it has already been established?

To try to apply it to this case -- it is great that DovBear has found a source for how they may have conducted themselves in an inclusive manner in the time of the Tannaim. But we live in 5774. And finding an arbitrary Tannaitic or Amoraic source is not sufficient. Which of these sources have been applied in practice over the centuries, until the present day? It would be more persuasive had DovBear demonstrated that this has been applied in practice. E.g. can one incorporate an am ha'aretz into a mezuman, against the gemara in Berachos? According to one Tosafist (Chagiga 22a d"h כמאן), yes and this is based on Rav Papa's application of Rabbi Yossi's reason of איבה in the gemara DovBear refers to. But according to another Tosafist ad loc, that is not the reason for the exception. So what has been the pesak hamekubal? Otherwise, one is just finding a convenient source from the myriads that exist ("any trace of a source") to support the conclusion to which he is already philosophically committed.

At the end of this post, delineated by a horizontal line, I examine the gemaras in question, whether we rule like them, and thus whether they are comparable with the sources (which have been concretely applied) regarding distancing oneself from sectarian practices.

2) So assume we have source A (reject sectarian practices) and source B (accept the halachically questionable so as not to drive them to sectarianism). And then we have a case X, which might be comparable to A and might be comparable to B.

How should we rule?

This is a skill. We may call it מדמה מלתא למלתא. Is case X best compared to seif 1 in Shulchan Aruch, where the answer is assur, or best compared to seif 2 in Shulchan Aruch, where the answer is muttar. People who are unskilled in pesak can very easily be incorrectly מדמה מלתא למלתא and come to the absolutely wrong conclusion. Knowing the underpinnings of the various laws (rather than just their surface structure), as well as being able to accurately assess the reality of case X, is critical in this regard.

And this, one might argue, is the skill of a developed posek, who lives and breathes the sources.

Which is why it is a good thing DovBear was asking Rav Schachter these questions... Unless of course it was meant rhetorically?

3) Let us assume that DovBear has identified the correct approach to take, of inclusion. This may be so. Even so, that does not (IMHO) take away from the seriousness of the shayla, or excuse the Google / Bar-Ilan experts for failing to even take this aspect into account, and instead focusing on the narrow halachic question.

That is, the conclusion may be that X is like B, not A. But first realize the stakes, and that it might indeed be A, and then discuss why it is like B instead.

4) There is also what to argue in metzius. I wouldn't necessarily agree with DovBear's assessment of the social reality and the fallout from taking approach C vs. approach D. But that would have to be the subject of another post.
_________________________

Done.

What now about the sources?

Well, there is Chagiga 22a:

ומאן תנא דחייש לאיבה רבי יוסי היא דתניא א"ר יוסי מפני מה הכל נאמנין על טהרת יין ושמן כל ימות השנה כדי שלא יהא כל אחד ואחד הולך ובונה במה לעצמו ושורף פרה אדומה לעצמו אמר רב פפא כמאן מקבלינן האידנא סהדותא מע"ה כמאן כרבי יוסי

"And who is the Tanna who takes account of animosity? — It is R. Jose. For it is taught: R. Jose said: Wherefore are all trusted throughout the year in regard to the cleanness of the wine and oil [they bring for Temple ??offerings??]?20 It is in order that every one may not go and give and build a high place21 for himself, and burn a red heifer22 for himself. R. Papa said: According to whom is it that we accept nowadays the testimony of an ‘am ha-arez? According to whom? According to R. Jose.23"

Rabbi Yossi is the yachid who argues with the Rabanan in Pesachim 42b on this matter. Do we rule like Rabbi Yossi? One opinion in Tosafot opines that we do (as mentioned above):

כמאן מקבלין סהדותא מע"ה כרבי יוסי. הר"ר אלחנן אומר דקיימא לן כרבי יוסי וחיישינן לאיבה לפיכך מזמנינן עכשיו בכל ע"ה אף על גב דאמרינן בברכות (דף מז:) אין מזמנים על ע"ה וגם רב מנשיא בר תחליפא לא רצה לזמן עליהם והר"י מפרש דלא כל הרוצה ליטול את השם להחזיק לעצמו כתלמיד חכם שלא לזמן על ע"ה בידו ליטול ואין אנו מחזיקים עצמנו כתלמיד חכם לענין זה:

Rambam (Hilchos Metamei Mishchav Umoshav 11:1) says we do accept their word about the wine and oil. However, he does not give the reason of eiva for this:

א  כְּבָר בֵּאַרְנוּ שֶׁעַמֵּי הָאָרֶץ נֶאֱמָנִין עַל טַהְרַת פָּרַת חַטָּאת:  מִפְּנֵי חֻמְרָתָהּ, אֵין מְזַלְזְלִין בָּהּ.  וְכֵן נֶאֱמָנִין הֶן עַל טַהְרַת יַיִן וְשֶׁמֶן שֶׁלַּנְּסָכִים--אִם אָמְרוּ טָהוֹר הוּא, הֲרֵי זֶה בְּחֶזְקַת טַהְרָה:  מִפְּנֵי חֻמְרָתוֹ, נִזְהָרִין בּוֹ.

Rather, it is because of its stringency, the Amei HaAretz are believed regarding it, מִפְּנֵי חֻמְרָתוֹ, נִזְהָרִין בּוֹ. (See also the Mishna on 24b.)

What about Rav Papa's din, assuming he was saying it lehalacha rather than merely explaining that that opinion was in accordance with Rabbi Yossi? Well, you can see Shulchan Aruch Choshen Mishpat 34:17 for yourself and decide whether we rule like this. It certainly seems that we do not accept the testimony of your average Am HaEretz off the street. But see Beis Yosef on the Tur, who cites attempted resolutions between these two (e.g. from the Rif), such as that they are speaking about two different classes of Am HaEretz, or, that this is why we accept him after establishing his good character.Or -- as I wrote above, and would logically prefer -- Rav Pappa is not trying to establish halacha.

There is a later gemara, Chagiga 26b:

The Mishna:

MISHNAH. IF TAX-COLLECTORS ENTERED A HOUSE,8 AND SIMILARLY IF THIEVES RESTORED [STOLEN] VESSELS9 THEY ARE BELIEVED IF THEY SAY: WE HAVE NOT TOUCHED [ANYTHING]’.10 AND IN JERUSALEM THEY11 ARE TRUSTED IN REGARD TO HALLOWED THINGS,12 AND DURING A FESTIVAL13 ALSO IN REGARD TO TERUMAH.

ובשעת הרגל אף על התרומה:

מנהני מילי אמר רבי יהושע בן לוי דאמר קרא (שופטים כ, יא) ויאסף כל איש ישראל אל העיר כאיש אחד חברים הכתוב עשאן כולן חברים:

"And at the time of the festival, [they were believed ] even on Terumah":

Whence is this deduced? — R. Joshua b. Levi said: Scripture Says: So all the men of Israel were gathered against the city, associated26 as one man:27 thus the verse made them an Associates.28

One could say that this was as part of an inclusive trend, as voiced by Rabbi Yossi. After all, we have the words כאיש אחד and חברים. Alternatively, it could be a mere play on words, since Chaveirim was the technical term for someone who accepted these stringencies regarding sanctity of foodstuffs, to the exclusion of the Am HaAretz.

But an inclusive trend is not the same as "lest they sacrifice on altars". Indeed, if this were the true reason, it would not be only the yachid, Rabbi Yossi, who says this. And further, while not accepting their terumah might cause animosity, unlike libations, it will not cause them to go off and libate on their own.

An alternate explanation is that during the regel, with the great influx of people, insisting on this stringency would cause undue hardship, and so it was relaxed. This is similar to the relaxation on purchasing earthenware vessels for hallowed things mentioned immediately above -- because of the hardship that would otherwise occur:

ובירושלים נאמנין על הקודש:

תנא נאמנין על כלי חרס גסין לקודש וכל כך למה שאין עושין כבשונות בירושלים:

The Rambam seems to hold understand that the Amei HaAretz accept the stringencies upon themselves during the regel:

יא  [ט] טֻמְאַת עַמֵּי הָאָרֶץ בָּרֶגֶל, כְּטַהְרָה הִיא חֲשׁוּבָה--שֶׁכָּל יִשְׂרָאֵל חֲבֵרִים, בָּרֶגֶל.  וּכְלֵיהֶן כֻּלָּן וְאָכְלֵיהֶן וּמַשְׁקֵיהֶן, טְהוֹרִין בָּרֶגֶל--מִפְּנֵי שֶׁהַכֹּל מְטַהֲרִין עַצְמָן, וְעוֹלִין לָרֶגֶל.  לְפִיכָּךְ הֶן נֶאֱמָנִין בְּכָל יְמוֹת הָרֶגֶל, בֵּין עַל הַקֹּדֶשׁ בֵּין עַל הַתְּרוּמָה; וּמִשֶּׁעָבַר הָרֶגֶל, חוֹזְרִין לְטֻמְאָתָן.

At the end of the day, I don't see any clear proof from these gemaras that in established practice we should relax halachic standards in order to prevent Amei HaAretz from founding their own religion.

However, of the many commenters and readers of that blog post and Facebook post, how many do you think took the time to look at the gemaras, Tosafot, Turs, Shulchan Aruchs, and so on, inside? How many are capable of doing it, even with Google-ing. Yet how many were persuaded by this solid argument, which so persuasively challenged Rav Schacter?

Note: Not halacha lemaaseh. I just did some quick Googling and quick skimming of sources to get the above. :-)

Aruch HaShulchan on Pitom falling off, part i: a definition of terms

The Aruch HaShulchan

As a followup to the preceding post, it is fitting to provide some background into the sugya. And for this, a wonderful place to turn is naturally the Aruch HaShulchan, Rabbi Yechiel Michel Epstein:

סימן תרמח סעיף יז[עריכה]

יש באתרוג שני מיני עצים דקים:

• האחד בסופו העוקץ, שהוא תלוי בו בהאילן כבכל הפירות, והוא הזנב של הפירי בתחתיתו. ובלשון המשנה הוא "עוקץ" (לד ב). ואצלינו ההמון קורין לזה פיטום, והוא יושב עמוק בתוך האתרוג, עד שאם ניטלנו כולו מעיקרו – תשאר גומא.
• והשני מעבר האחר בראש האתרוג, כפרח שבמיני תפוחים. ובאתרוג יש שאין להם זה כלל, ויש שיש להם. ונקרא בלשון המשנה "פיטמא", ובלשונינו "שושנתא", מפני שהיא מייפית את האתרוג כשפת פרח שושן. והיא אינה נכנסת בעומק האתרוג, אלא בראשו.

ולפי שהלשונות מתחלפות בזה, לכן בארנו זה: שיש לדעת שהעוקץ הוא התחתון הנכנס בעומק, והשושנתא הוא העליון. ויש אתרוגים שאין להם שושנתא כלל, והיינו אתרוגי קארסיק"א – אין להם שושנתא. וכן אתרוגי ארץ ישראל – יש שיש להם, ויש שאין להם. ואתרוגי קורפו וגינובא ומאראקא – כולם יש להם שושנתא.

ועתה נבאר דיניהם לפי דיעות רבותינו בסייעתא דשמיא.

"There is in the esrog two types of small stems. One is on its end, the Uketz, by which it hangs from the tree as is the case by all fruits, and it is the tail of the fruit on its bottom. And in the language of the Mishna it is the עוקץ (Sukkah 34b). And by us we call it the Pitom [!], and it sits deep within the esrog, such that if we take it all out from its base, there would be a furrow left.

The stalk connects to the tree. The calyx on
the bottom is the outer floral envelope.

And the second is on the other end, at the head of the esrog, like a blossom in types of apples. And among the esrogim, there are some which do not have it at all, and there are some which have them. And this is called in the language of the Mishna Pitma, and in our language Shoshanta, because its beautifies the esrog like the lip of a lily. And it does not enter the bottom [עומק] of the esrog, but rather at its head.

And since the languages can readily be accidentally switched, one for the other, therefore we have explained this: For there is to know that the Uketz is the bottom which enters into its depth, while the Shoshanta it the upmost part. And there are esrogim which do not have a Shoshanta at all. And these are the esrogim of Corsica -- they do not have a Shoshanta. [Josh: Corsican citrons are sweet.]

Corsican esrogim

And so too the esrogim of Eretz Yisrael, some have them [Shoshantas], and some do not have them. And the esrogim of Corfu, Genova, and Morocco, all of them have a Shoshanta.

Morrocan esrog

And now we will explain their dinim accordin to the opinions of our Rabbis, with the help of Heaven."

Perhaps to be continued...

My pittom broke -- now what?

Note: Consult your local Orthodox rabbi for any practical halachic advice.

This year I decided that my hiddur mitzvah for esrog would be in the realm of chinuch. And so I bought a second set for Junior, who is still a few years shy of bar mitzvah, but would still get something nice out of being responsible for, and possessing, his very own lulav set.

His esrog is pictured to the right. On the second day of Yom Tov, he dropped it on the floor, and the pittom broke. You can click to zoom.

To explain, and define the terms I plan on using in this post: At the top of the esrog is a short stem, called the dad. This is not where it attaches to the tree -- the stem which attaches to the tree is called the uketz, and is on the bottom of the esrog. So we are referring to the dad. The dad is thin, vertical, and yellow, and emerges from the top of the esrog. And at the top of that dad is a decoration, brown in color and perhaps somewhat crusty, alternately called the pittom or the shoshanta.

Basically, like the diagram to the right, but with Pitom being a synonym for Shoshanta rather than encompassing both the Dad and Shoshanta.

When Junior dropped it, half of the shoshanta broke off, and a diagonal cross section of the dad broke off as well. You cannot really tell this so well from the image (click to zoom in), because a new brown crusty layer formed over the break.

So what happens, then? Is the esrog now passul?

I looked it up in my Mishnah Brurah, and the conclusion is that it is not pasul bedieved. Even had the entire shoshanta broken off, it would have been kosher bedieved. And as for the stem (the dad), so long as some of it still exists, and it was not broken off in such a way that there is an furrow in the actual fruit below the stem, it is not considered chaser (deficient) and also is kosher bedieved. See Mishna Brurah siman TaRMaHH (548) inside for the details, but they essentially match what I said above, with some nuance in just what bedieved means in this case. Should one ideally borrow (or acquire) someone else's esrog if available? It seems so, based on what he writes... [I am not so convinced by the imperative to be choshesh for all possible opinions, as is the general directive of the Mishna Berurah.]

To see this inside, let us start with the Shulchan Aruch:

7) If its dad was taken off -- and this is the small head upon which the shoshanta exists -- it is invalid. Rema: And some are stringent if its shoshanta -- which is that which we call pitma is taken off (Ran). And it is good to be stringent

in the case where it is possible. However, as a matter of law, one should not invalidate unless the dad, which is the step upon which the top, the pitma is upon it, and the top is called the shoshanta (haMaggid). And all of this is specifically where it is taken off. But, if it never ever had a dad, it is valid. And so are most of the etrogim which they bring in these countries (the Rosh).

[Beer Hetiv: 11) its dad -- this is the step on the top of the etrog, and the shoshanta is upon it. And see the Taz.]

Mishna Berura:
"29: if its dad was taken off: this is the stem on the top of the etrog, like the tip [nipple] of the breast, and it is inserted into it [the etrog] and the shoshanta is upon it.
30: it is invalid: For it is like it [the etrog] is deficient. And behold, from the language of 'the dad was taken off', the implication is that the stem was taken off, even that which is embedded inside the etrog, such that it is made like a depression, and therefore it is invalid. However, if only that which above the etrog is taken off, there is not to be stringent, and so the Taz agrees as a matter of law. However, there are some of the decisors who side with the idea of being stringent, even if only that which is above the etrog is taken off, and they maintain that this is within the scope of 'deficient' as far as it is concerned. And, if there is left from the stem above the etrog even the slightest amount, the opinion of the Magen Avraham is that one should not be stringent in this.
31: where it is possible: this is where it is possible to take [aquire?] a better one than this. But if this is the best, one should not be stringent because of the shoshanta. And still, it appears that this is just if it is missing the shoshanta, but if it is missing as well some part of the stem, even if there is still some part of the stem above the etrog, it is better to take a different one, if it is possible, since there are those who are stringent as well in this."

End quote.

There is also an interesting discussion of this in Aruch Hashulchan, here. Maybe fodder for a follow-up post.

See also Halachipedia on the topic, which gives a much more negative outlook on it. More encompassing than my post above, but also omitting some important detail and thus nuance in the Rema, for example. And they also use the term pittom differently than I defined it above for the sake of this post.

Hair covering: a 179 page article vs. an offhand comment by Rav Shach

Regarding one of the recent controversies, the Mostly Kosher blog writes as follows:

Allegedly a fake letter was sent to Tradition (the magazine which published the essay) where:

Someone claiming to be David Tzvi Keter wrote one of those letters to Tradition from a Gmail account, establishing a biography in which he claimed he had “moved to Israel in 1949 after graduating from Columbia,” and that he then went on to learn at one of the most prestigious yeshivas in the world at the time, Jerusalem’s Etz Chaim yeshiva, under a major sage of the time, Rabbi Isser Zalman Meltzer.

The Keter character then goes on to provide a history in which he gathered the oral testimony of several prominent sages of the mid-20th-century on the topic of women’s hair covering. His letter provides their comments 60 years later to add them to the historical record Broyde had been analyzing in the Tradition article.

Simon Lerner on Twitter askes the following question:

This question reveals much about our current state of affairs. It would seem that people are more likely to accept a position, if they can ascribe it to Rav Shach's offhand comment, then if they can ascribe it to a 179 page study. 

I think the answer to this lies in Rabbi Broyde's initial apology and clarification.

Stories that were told using that pseudonym were all stories that one of us had heard as a child from a generation of torah scholars now gone; the stories about Rav Moshe are particularly so.

Namely, that these actually were the positions of Rav Shach and others, but were only heard second-hand, and so he did not put it into the 179 page paper. But still he thought it to be an important part of the conversation, and so he invented someone to give firsthand testimony to the Internet, corresponding to the firsthand testimony he had heard as a child. In this way, he promoted it from hearsay and still included it as part of the conversation. (Unless you take the position that he is lying even in this, which is certainly possible.)

As to Shimon Lerner's point, yup, that is indeed the current state of affairs, to accept an offhand comment from a Gadol (or hearsay of it from an 80 year old) more than a 179 page study.

I don't think that this attitude is necessarily a bad thing.

I am reminded of a joke. There are various formal methods of proving things in Computer Science. Proof by induction, proof by contradiction, etc. Then there is this one:

Proof by eminent authority:

"I saw Karp in the elevator and he said it was probably NP- complete."

This is Richard Karp:

Richard Manning Karp
Richard Karp giving a talk at the EPFL on 13th of July 2009

Who is he?

Richard Manning Karp (born January 3, 1935) is a computer scientist and computational theorist at the University of California, Berkeley, notable for research in the theory of algorithms, for which he received a Turing Award in 1985, The Benjamin Franklin Medal in Computer and Cognitive Science in 2004, and the Kyoto Prize in 2008.^[2]

Of course, proof by eminent authority is not a really valid proof. But if I had a rather complex, written proof by a relative unknown, which might have a mistake somewhere, that some problem was NP Complete, and on the other hand, I casually met Richard Karp in the elevator and he said that it seemed probable that it was NP complete, I would feel much more confident, before further investigation, that there was a good likelihood that the problem was NP complete. If you add that to the complex proof, I would again feel more confident.

I haven't read the 179 page study about hair covering. I have my own position on hair covering. But as scholarly as Rabbi Broyde is, without a careful read of the study, I don't know if he is twisting sources to say something other than what he presents, or if his leaps are valid or invalid leaps, or if the authorities he cites are normative, or accepted lehalacha.

Meanwhile, many of the Big Name authorities live and breath Torah. While they may argue with one another, they still develop an intuition based on the many sources they have studied in depth. And that intuition, expressed in an "offhand comment" is something that many people will lend credence to. As well they should. The offhand comment reflects an understanding [one of perhaps many] of the "spirit of the law".

Rav Shach was quoted as follows:

But it was Rav Shach who startled me with his halachic view. Rav Meltzer had told me to listen to Rav Shach closely, as “Rav Shach was married to his [Rav Meltzer's] niece and she did not cover her hair.” Rav Shach met me at some length, and told me very clearly and directly that whether hair covering was obligatory or not when most modest women did not cover their hair was a dispute between the Shulchan Aruch and the Rambam, since Rambam called hair covering a dat moshe andMechaber called it a dat yehudit. Rav Shach told me that it was better to be strict on this matter, but one who was makil, yesh al ma lismoch. When I pressed Rav Shach about explaining the basis for the Mechaber‘s view, he told me that the Mechaber is adopting the view of the Tur, which must have been his view the Rosh as well, although Rav Shach indicated that he did not see that view in the Rosh himself.

Of course, whether Rav Shach actually said this is now up in the air.

At a recent wedding I attended, a rabbi who felt the impetus to defend a certain Gadol's politically incorrect statement said that he did not know how to do so. "If I say that outside the world of Torah, this Gadol is still living in the 1950's, then they will turn around and ask how we can rely upon him for any pesak." Personally, I don't know that the Gadol's politically incorrect statement was necessarily untrue. [Maybe yes, maybe no. In today's environment, there is no room for nuanced discussion of politically incorrect statements, for fear of being tarred as politically incorrect oneself.] Political correctness or politically correct methods of expression do not necessarily equal reality. And we need not be so fickle, following the zeitgeist and declaring it as the basis upon which all halacha may be decided. Some level of conservatism may be desired, as a link to past attitudes and past ways of understanding halacha as applied to practical situations. (See Rabbi Eliezer ben Hyrcanus, who was the link to the past, and opposed the innovations of his colleagues, post churban. As the Mishna in Avos relates, he was the plastered cistern who never lost a drop, while Rabbi Elazar ben Arach was the innovator, the perennial spring.)

Yes, I indeed agree that incorrect grasp of metzius can impact on the validity of halachic rulings.  For example, rabbis reacting to the farce that was psychology in the past, and treating modern psychology as necessarily the same.

But is there really a good alternative? I am not so sure. We can rely on the 179 page articles by young whippersnappers, and discard the words of those who lived and live in the past, but then we lose the benefit of the intuition that comes from living and breathing Torah for so many years.