Mechon Hadar is an educational institution that seeks to empower a generation of Jews to create and sustain vibrant, practicing, egalitarian communities of Torah learning, prayer, and service.

THE CENTER FOR JEWISH LAW AND VALUES SELECTED MATERIALS ‫תשע"ד‬ 2013-4
THE CENTER FOR JEWISH LAW AND VALUES SELECTED MATERIALS                 2013-4
CENTER FOR JEWISH LAW AND VALUES Selected Materials 2013-2014 ‫תשע"ד‬ The Year in Review .................................................................. 1 Gender and Tefillin .................................................................. 3 The Rabbinic Shabbat: Shamor and Zakhor in Stereo ....... 23 Sources ................................................................................... 44 Thoughts on Standing at a Halakhic Frontier...................... 51 R. Ovadiah—A Halakhic Tribute ......................................... 57 Who Should Fast The Day Before The Seder? ..................... 63 How Loud Can You Pray? ..................................................... 65
CENTER FOR JEWISH LAW AND VALUES Selected Materials 2013-2014                  The Year in Review ...........................
CJLV 2013-4: The Year in Review This pilot year for the Center featured a number of areas of accomplishment. Books We have a signed contract with Ktav for the publication of Gender, Prayer and Jewish Law. This book is the product of 7 years of teaching at the yeshiva and over a decade of thinking. It aims to be a thorough and balanced articulation of the issues surrounding gender and prayer in halakhah, which remains one of the core areas of debate and discussion in the observant Jewish community today. While the book clearly advocates for the plausibility and necessity of embracing egalitarian prayer in the contemporary world, its overarching aim is to draw people of disparate practices into closer and more charitable conversation, while engendering greater respect for halakhah as a discipline. Publication of Gender, Prayer and Jewish Law is expected in early 2015. CJLV is also delighted to be publishing Reconstructing the Talmud, edited and largely authored by Joshua Kulp and Jason Rogoff. They are students of the two greatest living Talmudists, Professors Shamma Friedman and David Weiss Halivni. Reconstructing the Talmud aims to distill the main insights of academic Talmud scholarship for a general audience. Chapter by chapter, the book helps the reader understand how to approach Talmudic texts thoughtfully and historically in order to mine them for meaning. Kulp and Rogoff have authored most of the chapters, with a few other scholars contributing chapters. I contributed a chapter on how a historically sensitive approach to Talmud can aid our understanding of later halakhah and I wrote the book’s introduction. Reconstructing the Talmud is an exciting part of this launch year for CJLV, which is centered around mining classical rabbinic texts for meaning. Articulating an Overarching Philosophy This year, we began to develop materials that articulate an overarching vision for what the conversation of halakhah should look like in the contemporary world. Mechon Hadar hosted a major public event titled “Ideas at the Heart of Hadar,” during which I offered a lecture on my overall approach to thinking about halakhah and morality. The talk is now live online. I authored two written pieces touching on general issues. The first was a tribute to R. Ovadiah Yosef, one of the great halakhic authorities of our time. I attempted to identify distinctive elements of R. Ovadiah’s halakhic approach that ought to be central elements of how the rest of us think about halakhah. The second piece was a reflection titled “Thoughts on Standing at a Halakhic Frontier.” This piece is based on a talk I delivered at the annual Mechon Hadar alumni conference. It aims to reflect on how we might think about the role of halakhah in discussions about topics that are still dramatically unfolding in our society, such as issues of same-sex marriage and broader reevaluations of categories of gender more generally. Pieces of Writing on Various Topics in Halakhah I spent a significant amount of time this year developing some lengthier pieces for a broader audience. Some touched on current topics of discussion. A set of pieces on gender and tefillin were extremely influential—the Times of Israel blog version of my first piece had over 10,000 unique views. I have combined the various elements of my writing on this into one longer piece. www.mechonhadar.org 1
CJLV 2013-4  The Year in Review This pilot year for the Center featured a number of areas of accomplishment. Books We have...
I have also nearly completed two other major pieces. The first is on the origins of the rabbinic Shabbat and explores in depth how our Sages tried to synthesize the complementary and competing visions of Shabbat as grounded in both Creation and Exodus. This, I believe, is a critical frame for understanding much of later rabbinic halakhah around Shabbat. Another piece focuses on the tensions between pluralism, personal integrity and community in halakhah. Beginning with discussions about early conflicts between Beit Shammai and Beit Hillel and concluding with medieval tensions around dueling standards of kashrut, this piece offers a map for how we ought to navigate difference in practice in the contemporary Jewish world. Other smaller pieces included investigations of the role of gender in determining who fasts on the day before Pesah and what constitutes appropriate volume when praying. These last two pieces can be found at www.halakhah.org, which remains a useful platform for posting shorter explorations. Public Teaching and Communication Finally, our voice on matters of halakhah continues to be prominent in our public teaching. Aside from my regular lectures and shiurim to our many students at Yeshivat Hadar, we seize opportunities to get our voice out more broadly. I had the opportunity to be featured on a panel at the JOFA conference this past winter; the discussion between myself, Rabbi Dov Linzer of Yeshivat Chovevei Torah and Professor Tamar Ross of Bar Ilan University was very lively. The packed room was deeply engaged in the discussion and Hadar’s distinctive approach to halakhah was clearly laid out and communicated. On a trip to Israel, I gave a series of talks at the Hartman Institute on the current struggles there regarding institutional kashrut. These shiurim were well attended and again spread the word about Hadar’s broader vision of halakhah. Prior to Pesah, I conducted an hour long conference call with alumni of Yeshivat Hadar, who phoned in from all over the United States. This may serve as a model for future conference calls to gather questions on both theoretical and practical issues. As you can see, this has been an extraordinary first year. It could not have happened without your support, interest and investment in the importance of this work. There is much more work to be done. I look forward to continuing to get others involved in CJLV’s work and to sharing future updates with you. Sincerely, ‫איתן‬ Rabbi Ethan Tucker Rosh Yeshiva, Mechon Hadar Director, Center for Jewish Law and Values www.mechonhadar.org 2
I have also nearly completed two other major pieces. The first is on the origins of the rabbinic Shabbat and explores in d...
Gender and Tefillin: Possibilities and Consequences Rabbi Ethan Tucker, Center for Jewish Law and Values In many contemporary discussions around gender and tefillin, a key point about the essence of tefillin has been missed. Put simply, tefillin, at its core, encodes full citizenship in the world of learning. Wearing tefillin is nothing less than the embodiment of the value of Torah study, the manifestation of a commitment that by studying Torah, Jews strive to make their very essence a concrete extension of God’s will in the world. Those who wear tefillin thereby demonstrate their full responsibility to transmit and produce the next generation of Torah. Though many of us associate tefillin with prayer, on account of the fact that Jews generally only wear them at morning services, the origins of this mitzvah are in fact not connected to prayer but to study and learning. Any thoughtful and coherent approach to gender and tefillin should therefore not track with our discussions of gender and prayer but rather with our vision of education and how we understand women’s citizenship in the creative and authoritative process of transmitting and interpreting Torah. Let us review the origins of the gendering of the mitzvah of tefillin, understand the meaning behind it and then assess our options for responding to our current moment. How we think about this issue, perhaps even more than our specific policies, is critical to how the as yet unknown future of gender and Jewish religious practice will unfold. I. Why were women exempted from tefillin? Tefillin is not just any mitzvah. There is something uniquely powerful about it to women who wish to wear them and something uniquely repellant to those who wish they wouldn’t. Why? To begin to get at an answer, we need to go back to the origins of the gendered approach to tefillin. How do we even know women are exempt in the first place? Our earliest evidence comes from the Mekhilta, a commentary on the book of Exodus drawing on traditions from the sages of the early first millennium of the common era, the same Sages who feature prominently in the Mishnah. Many passages in the Mekhilta—like the one we will look at—appear in the Talmud and serve as authoritative sources for Jewish practice until today. Much of the Mekhilta is a close reading of verses in order to derive or justify practical law. This passage is expounding on Exodus 13:9: ‫שמות פרק יג:ט‬ :‫וְ הָ יָה לְ ָך לְ אֹות עַל יָדָך ּולְ זכָרֹון בֵּ ין עינֶיָך לְ מַ עַן תהְ יֶה תֹורת ְיקֹ וָק בְ פִ יָך כִ י בְ יָד חזָקָ ה הֹוצִ אָך יְ קוָק ממצְ ריִ ם‬ ָ ִ ִ ֹ ֲ ֲ ַ ִ ֵּ ִ ְ Exodus 13:9 It shall be for you a sign upon your arm and a reminder between your eyes, so that God’s teaching will be in your mouth, for God took you out of Egypt with a strong arm. www.mechonhadar.org 3
Gender and Tefillin  Possibilities and Consequences Rabbi Ethan Tucker, Center for Jewish Law and Values In many contempor...
The language of “upon your arm” and “between your eyes” is understood to refer to tefillin, and the Mekhilta expounds on the next phrase of this verse as follows: ‫מכילתא דרבי ישמעאל בא - מסכתא דפסחא פרשה יז‬ ‫"למען תהיה תורת ה' בפיך" למה נאמר? לפי שנאמר "והיה לך לאות": שומע אני אף הנשים במשמע? והדין‬ ‫נותן: הואיל ומזוזה מצות עשה ותפילין מצות עשה, אם למדת על מזוזה שהיא נוהגת בנשים כבאנשים, יכול‬ ‫אף תפילין ינהגו בנשים כבאנשים? ת"ל "למען תהיה תורת ה' בפיך"—לא אמרתי אלא במי שהוא חייב‬ .‫בתלמוד תורה. מכאן אמרו הכל חייבין בתפילין חוץ מנשים ועבדים‬ ‫מיכל בת כושי היתה מנחת תפילין, אשתו של יונה היתה עולה לרגלים, טבי עבדו של רבן גמליאל היה מניח‬ :‫תפילין‬ ‫"ולזכרון בין עיניך למען תהיה תורת ה' בפיך"—מכאן אמרו כל המניח תפילין כאלו קורא בתורה, וכל‬ .‫הקורא בתורה פטור מן התפילין‬ Mekhilta of R. Yishmael, Bo, Massekhta de-Pisha Parashah 17 “So that God’s teaching will be in your mouth.”—Why was this said? From the statement “It shall be for you a sign,” I might have thought that women are included [in the obligation to wear tefillin]. Indeed, it would be logical: given that mezuzah and tefillin are both positive commandments, if mezuzah is gender blind [because it applies to anyone who lives in a Jewish home], ought not tefillin also be gender blind? Therefore, the verse says: “So that God’s teaching will be in your mouth”—[Tefillin only applies] to one who is obligated in Torah study. This is the basis for saying that all are obligated in tefillin except for women and slaves. Michal bat Kushi used to put on tefillin, Yonah’s wife used to make the festival pilgrimage, Tavi, Rabban Gamliel’s slave used to put on tefillin. “As a reminder between your eyes, so that God’s teaching will be in your mouth”—This is the basis for saying that putting on tefillin is like reading from the Torah and one who reads from the Torah is exempt from tefillin. The Mekhilta makes a number of key points. First, it anchors the exemption from tefillin in an exemption from the obligation to study Torah. [This same linkage is affirmed on Talmud Bavli Kiddushin 34a.] This is the first thing we must understand: Tefillin is not a mitzvah anchored in prayer; it is a mitzvah anchored in the obligation to learn. Perhaps more powerfully: those who wear tefillin are entrusted with a microcosmic Torah that they place on their bodies. It doesn’t make sense for someone who does not share equally in the burden of the intellectual and spiritual core of Torah study to be obligated in its physical corollary. If that wasn’t clear enough, the final line of the Mekhilta passage above emphasizes that learning Torah and wearing tefillin are essentially the same thing; indeed, one who is truly learning is exempt from wearing tefillin while doing so! Second, the Mekhilta takes women’s exemption from Torah study for granted, apparently as a self-evident fact known from elsewhere. Indeed, all early rabbinic sources assume—but do not demonstrate—the exemption of women from Torah study. It is only much later sources in the Talmudim (Yerushalmi Berakhot 3:3 and Bavli Kiddushin 29b) that link this fundamental assumption back to verses, stating that the phrase found in Deuteronomy 11:19, ‫ולמדתם אותם את‬ ‫—בניכם‬you shall teach them to your banim—intends banim not to be read as the gender-neutral “children” but as the gender specific “sons.” [Rambam Talmud Torah 1:1 notably does not cite www.mechonhadar.org 4
The language of    upon your arm    and    between your eyes    is understood to refer to tefillin, and the Mekhilta expou...
this prooftext, recognizing it to be a post facto scriptural anchoring of a self-evident law.] Early figures in Mishnah Sotah 3:4 argue whether it is critical nonetheless to teach women Torah or whether this is unnecessary, foolish or forbidden. But none question the basic assertion: women themselves are not expected to sustain and produce a culture of learning. Third, and most important: the Mekhilta makes clear that women’s exemption from Torah study and the corollary exemption from tefillin are not about gender at all. In fact, women and slaves are exempt from these mitzvot. Indeed, the supplemental stories about Michal and Tavi—both of whom don tefillin despite their exemptions—treat as equally exceptional and interesting the notion that a woman or a slave would put on tefillin. This strongly suggests that Torah study and tefillin are both markers of freedom and full citizenship in rabbinic society. I would go further: it is not at all clear that rabbinic sources generate these categories internally. They may well take external categories from the Roman world in which they live and map them onto our internal rituals and practices. Women and slaves—neither of whom could vote in ancient Rome, nor in most ancient civilizations—are self-evidently not expected in the Beit Midrash, which is the seat of rabbinic power, creativity and influence. The Mekhilta picks up only from that starting point—it would be absurd for someone so excluded to be expected to wear tefillin. This approach to thinking about Torah study and tefillin is borne out in other sources from the Talmudic era. On Talmud Bavli Ketubot 28a, R. Yehoshua b. Levi rules that it is forbidden for a master to teach his slave Torah. On Talmud Bavli Gittin 40a, he offers a corollary ruling: a slave who puts on tefillin in the presence of his master is thereby emancipated! On Ketubot 28a, Rashi pithily explains why Torah study and putting on tefillin are so problematic for a slave: they are ‫—מנהג בן חורין‬the way free people act. Based on a slightly modified version of R. Yehoshua b. Levi, later poskim (Rambam Avadim 8:17 and Shulhan Arukh YD 267:70) rule that actively clothing a slave in tefillin or instructing him to read Torah in public renders him free, in a way that no other mitzvah performance would. We see here how the commandments of Torah study and tefillin are, for Hazal, intimately bound up with notions of freedom and full citizenship. The performance of other mitzvot is less indicative of these states of being and social standing. Once we acknowledge the inextricable link between Torah study and tefillin, an inescapable conclusion emerges: Any discussion of gender and tefillin must be connected to a discussion of gender and Torah study. This is especially true in the context of a Jewish school, which is responsible for training the next generation of Torah students and scholars. www.mechonhadar.org 5
this prooftext, recognizing it to be a post facto scriptural anchoring of a self-evident law.  Early figures in Mishnah So...
II. Thinking about gender and tefillin in the contemporary world: Four Approaches There are at least four ways to think about gender and tefillin. A. Nothing has Changed, Take 1 One approach is to maintain that women are indeed exempt from Torah study and remain, at best, visiting and welcome members of the Beit Midrash. Here and there, they may make significant contributions, but we and God expect nothing of them when it comes to generating the culture of learning that lies at the heart of a community of Torah. Their exemption from tefillin is consistent with and a powerful reminder and marker of this fact. And, in the context of this assumption, it would indeed probably only be wise for a few isolated individuals (like Michal and Tavi, the woman and slave mentioned as exceptions in the original Mekhilta source quoted above) to take on a mitzvah that has traditionally had such high standards and potent symbolism associated with it. This approach would use the language of option—at most bordering on encouragement—when speaking about women and tefillin, since women remain different from men with respect to their underlying obligation to the culture of Torah study. That underlying gender gap can either be grounded in a claim that women remain descriptively or prescriptively lower-class citizens in the broader society, or in an ontological claim, grounded in biology, that posits that men and women are different on the intellectual and spiritual claim and thus we expect different things from them. This approach maintains a great deal of harmony with earlier sources in affirming the tight connection between Torah study and tefillin. Its weaknesses: 1) If it posits or reifies the social inferiority of women, it is increasingly out of step with reality. 2) If it imports a biological essentialism that is lacking in the early sources, it fails to explain why slaves are exempt from tefillin as well. 3) It does not make any sense of co-ed religious schools that assign an equal load of Jewish learning to boys and girls and even have them learning in the same classes, sometimes with women teaching the Torah content. It is not really coherent for a school to suggest that a girl is exempt from Torah study even as she can be given an F in a mandatory Talmud course. But I suspect this approach will continue to have strength in educational settings where men and women are segregated and do not share the same curriculum. And even in coeducational settings, if the students are treated as consumers, rather than potential producers of Torah, it may well be that women will never truly see themselves as protagonists in the rabbinic conversation (whose male-dominated landscape presents enormous challenges for gender-blind Torah to begin with) and thus find it odd to think of themselves as obligated in Torah study and its corollary, tefillin. There are unlikely to be more than a few outlier women who wear tefillin in such communities, as has been the case throughout Jewish history. Indeed, given some of the other concerns historically raised surrounding tefillin—how they have become culturally gendered male and our reticence around wearing them more than the absolute minimum www.mechonhadar.org 6
II.  Thinking about gender and tefillin in the contemporary world  Four Approaches  There are at least four ways to think ...
demanded—such communities are likely to be negative, not just neutral, about most cases of women and tefillin. B. Severing the link between Talmud Torah and Tefillin A second approach is to demand of women that they be full members of the Beit Midrash, bearing its burdens of consistent learning and daring creativity, while maintaining a gender gap surrounding the obligation of tefillin. The key to this approach is to weaken the link between tefillin and Torah study. Boys and girls may be equally obligated to study Torah, but only boys put on tefillin, which will no longer be strongly linked with Torah study. This approach has been taken by many Conservative institutions for some time and is now currently emerging from a number of modern Orthodox high schools. In certain ways, this feels like a safe move: there is ample precedent for women to study Torah, at least in certain contexts, such that equally including men and women in this act doesn’t feel violative of tradition and expected norms of behavior. By contrast, tefillin, with its more checkered history around gender, is more fraught, and thus the temptation to dissuade, or at least not demand, gender-equality in this area of practice. In fact, I suspect the conservatism of this approach will make it attractive for many. But I fear the link between Talmud Torah and tefillin will not be so easily severed (quite aside from the question of whether it should be—I think it should not). That leads me to a fear of two possible outcomes, both of which would be undesirable and would contraindicate the religious values of those advocating this approach: 1) By maintaining a gender gap around tefillin, we will unwittingly maintain a gender gap in Talmud Torah. Men and women who grow up in a world in which men are expected to put on tefillin and women are not will come to understand that the enterprise of Torah expects men to produce Torah and women, at best, to consume it. This is further reinforced by the fact that there are so few places where women can learn for many years at an advanced level. The “tefillin gap” will sadly confirm that women are not being trained as poskot who can take full responsibility for Torah. When done consciously, this is the first approach outlined above, and it has integrity. When this is an unconscious result and is the opposite of what the institutions say they want with respect to women’s Torah study, it is a religious and pedagogic failure. 2) By maintaining a gender gap around tefillin in a secular and religious context that otherwise demands high intellectual and spiritual achievement from both men and women, the mitzvah of tefillin will (further) suffer in practice and gradually become irrelevant. Boys will grow up in a beit midrash with peers from whom they learn and with whom they generate Torah. They will see that those peers do not put on tefillin. They will reach an inevitable conclusion: Tefillin is a strange, arcane ritual devoid of much meaning that is at best the basis for a nostalgic male bonding ritual at a Men’s Club event. Tefillin will be diminished and will no longer be a powerful embodiment of a Talmud Torah whose telos is not in the mind, but in the body. It will be a mere ritual practice that affords meaning to those who connect with it. I suspect this process is farther underway with more observant boys than we are aware of. This approach therefore seems unstable. www.mechonhadar.org 7
demanded   such communities are likely to be negative, not just neutral, about most cases of women and tefillin. B. Severi...
C. Nothing Has Changed, Take 2 A third approach would hark back to the Mekhilta and its assumption that women and slaves were exempt from Torah study. It would recognize that the exemption was based on class and social standing, not gender alone, and therefore conclude that in a society in which men and women are equal under the law (with respect to suffrage and basic rights) and equally educated, the obligation in Talmud Torah is automatically gender blind. The dramatic upheaval in the social status of women in recent decades does not change anything about the halakhah in this regard, it simply applies the eternal halakhah to a new reality: the set of free citizens expected to contribute to the culture of Torah study and creativity has grown. By extension, the obligation of tefillin is gender-blind as well, even though it was not previously. The scope of a set of statutes exempting minors from culpability in an area of law might dramatically change if the state redefines who is considered a minor (e.g. by lowering the age of majority from 21 to 18) without the core value of the law (minors are exempt) changing one iota. So too, this approach contends that nothing has changed: free citizens are obligated in Torah study and its physical corollary, the wearing of tefillin. Whether or not contemporary men and women follow through on their commitments in this regard, the driving texts and values expressed by the Written and Oral Torah demand that they rise to these expectations. The great advantages of this approach are its honesty, its fidelity to the values of the earlier texts and its compatibility with the (stated) goals of coeducational schools with rigorous expectations around Torah study. Such schools (and the communities they spring from) do expect the same things from their boys and girls and don’t think of their Talmud classrooms as functioning in academic mode for boys and extracurricular mode for girls. The disadvantage: It ignores history entirely, particularly the deeply gendered history around the highly embodied mitzvah of tefillin. To expect that all women, en masse, suddenly put on tefillin after millennia of communal indifference (and some significant opposition) may be impractical and unwise. And the practice of putting on tefillin can alienate many women from their home community even if they are comfortable with the practice in private. No matter how good the theory of this approach is, any failure to acknowledge and name the complicated feelings of many women around tefillin may undermine an eventual goal of a gender-blind practice. While I endorse this approach philosophically, I don’t think it exhausts our responsibility in addressing this issue. D. Moving through history towards core values A fourth approach builds on the third, assuming gender-blind obligation in Talmud Torah in the contemporary world and therefore a theoretical corollary gender-blind obligation in tefillin. But in reality, this approach would acknowledge that tefillin might be very different for women than other mitzvot from which they were classically exempt, including the study of Torah. This might be for at least two reasons: 1) Tefillin has a deep history of being male, and as a mitzvah that is worn, it feels to many women like the inappropriate donning of clothing intended for another gender. 2) Communal norms and boundaries around gender and mitzvot— particularly in contemporary Orthodoxy—may make it nearly psychically impossible for a www.mechonhadar.org 8
C. Nothing Has Changed, Take 2 A third approach would hark back to the Mekhilta and its assumption that women and slaves w...
woman to wear tefillin without feeling completely cut off from her supporting religious community. 1. TEFILLIN AND THE EXPERIENCE OF CROSS-DRESSING The notion that tefillin are a kind of gendered-male clothing is already captured by Targum Yonatan on Deuteronomy 22:5—a verse forbidding cross-dressing—which describes tzitzit and tefillin as male garments not to be worn by women. Though this explicit reason does not achieve acceptance in mainstream halakhic sources (see Responsa Rabaz III:73 for one example), the instinct behind it likely informs some of the opposition to allowing (classically exempt) women to perform this mitzvah optionally. It can hardly be an accident that the only two mitzvot that medieval German authorities (Maharam of Rothenberg and Maharil) single out as inappropriate for women to perform voluntarily are tzizit and tefillin, both of which involve wearing something on the body. While mainstream sources do not actually consider women who wear tefillin to violate a Biblical ban on cross-dressing, this concern is plausibly strong enough to justify a delay in how easily and quickly we expect contemporary women to fulfill their obligation. Engaging and legitimating discomfort for those who experience women and tefillin as an inappropriate crossing of gender boundaries has two advantages: 1) It can maintain a gendered practice around tefillin without claiming that women are exempt. Men and women can be equally obligated in Torah study, even as the cultural gender context surrounding its physical manifestation might make some women feel they are doing something forbidden when they wear it. We are under no obligation to cultivate that feeling—indeed, those following this approach probably have an obligation to steer people away from it—but we do no one a service by pretending it doesn’t exist when it is real. 2) Concerns about gendered attire are notoriously unstable across and even within cultures. Honoring a particular woman’s feeling or experience in this regard is not a normative statement about how subsequent generations ought to feel. Those who grow up with mothers who put on tefillin at home and with girls who do so at school will no longer feel the gendered associations in the same way that their ancestors might have. We can thus maintain a gender-blind discourse around obligation—which is critical to be faithful to what Talmud Torah and tefillin are supposed to be about—while creating the space and pace of change required to move from one paradigm to another. [Perhaps making tefillin more personalized might also help women take on this mitzvah. I will note that there is no obstacle to painting the backs of the straps various colors (Shulhan Arukh OH 33:3); that might enable some communities to personalize tefillin in a way that would feel more comfortable around the clothing issue.] 2. TEFILLIN AND THE CENTRALITY OF MAINTAINING PROPER FOCUS One of the many requirements of tefillin—having nothing to do with gender—is a certain degree of properly-directed focus. In addition, a few sources suggest that it is legitimate not to wear tefillin in circumstances of extreme discomfort: www.mechonhadar.org 9
woman to wear tefillin without feeling completely cut off from her supporting religious community. 1. TEFILLIN AND THE EXP...
‫תלמוד ירושלמי (וילנא) מסכת ברכות פרק ב הלכה ג‬ ‫רבן יוחנן בן זכאי לא הוון תפילוי זעין מיניה לא בקייטא ולא בסיתוא וכך נהג ר' אליעזר תלמידו‬ ‫אחריו ר' יוחנן בסיתוא דהוה חזיק רישיה הוה לביש תרויהון ברם בקייטא דלא הוה חזיק רישיה לא‬ .‫הוה לביש אלא דאדרעיה‬ R. Yohanan did not put on the head tefillin in the summer, because his head felt weak. There also seems to be an implication that one for whom it would be very cold in the winter might have basis for not wearing tefillin, in that R. Yohanan b. Zakkai is painted as extremely pious for not giving himself that leeway. :‫בבלי מנחות לו‬ ‫אמר רבה בר רב הונא: חייב אדם למשמש בתפילין בכל שעה, קל וחומר מציץ: ומה ציץ שאין בו‬ ‫אלא אזכרה אחת, אמרה תורה: והיה על מצחו תמיד - שלא תסיח דעתו ממנו, תפילין שיש בהן‬ .‫אזכרות הרבה על אחת כמה וכמה‬ Rabbah b. R. Huna says that a person must constantly touch their tefillin so as not to forget about them. Picking up on this thread, Rambam (codified in Shulhan Arukh OH 38:9) articulates a general principle and may even suggest that a person distracted in these ways is forbidden from wearing tefillin: ‫רמב"ם תפילין ומזוזה וספר תורה ד:יג‬ ‫מצטער ומי שאין דעתו מיושבת ונכונה עליו פטור מן התפילין שהמניח תפילין אסור לו להסיח דעתו‬ .‫מהן‬ Beit Yosef OH 38 quotes R. Manoah as saying that tefillin is an exception to the general rule that a person must pull themselves together emotionally in order to fulfill mitzvot, since proper focus is a sine qua non for tefillin in a way that it is not for other mitzvot: ‫בית יוסף אורח חיים סימן לח‬ ‫וכתב ה"ר מנוח אף על גב דבשאר מצות אמרינן (שם כה:) דמצטער איבעי ליה ליתובי דעתיה הכא‬ :‫שאני משום היסח הדעת‬ Bah OH 38, by contrast, compares the Rambam’s ruling here to the Talmud’s rulings around ‫ ,סוכה‬where a ‫ מצטער‬is exempt and a mourner is obligated. There, it is clear that the distress of mourning does not exempt a person from the sukkah. Bah explains that this is because a mourner is somewhat the master of his own emotional state and is therefore obligated to pull himself together sufficiently in order to fulfill mitzvot. By contrast, the ‫ מצטער‬is someone who is experiencing distress from external forces, such as the temperature in the sukkah. Magen Avraham adopts this line of reasoning and rules that a person who is able to collect themselves must put on tefillin, but when the distress stems from external forces outside of one’s control, one is exempt from wearing them. Peri Megadim, however, rules that there is no obligation to pull oneself together in the context of tefillin, appealing to R. Manoah’s explanation of the Rambam. Mishnah Berurah 38:31sides with Magen Avraham over Peri Megadim. www.mechonhadar.org 10
                                                                                                                          ...
This is another line of argument for making sense of a woman who feels ontologically obligated in tefillin, but for whom it is impossible, perhaps always, but at least in some contexts, to actually fulfill this mitzvah without alienating those closest to her or cutting herself off from critical wellsprings of religious support and community. One must be very cautious about indulging the criticisms of others in the context of fulfilling mitzvot. As the Tur reminds us as he begins his code in Orah Hayyim 1: ‫טור אורח חיים סימן א‬ ‫יהודה בן תימא אומר הוי עז כנמר וקל כנשר רץ כצבי וגבור כארי לעשות רצון אביך שבשמים פרט‬ ‫ארבעה דברים בעבודת הבורא יתברך והתחיל בעז כנמר לפי שהוא כלל גדול בעבודת הבורא יתברך‬ ‫לפי שפעמים אדם חפץ לעשות מצוה ונמנע מלעשותה מפני בני אדם שמלעיגין עליו ועל כן הזהיר‬ ...‫שתעיז פניך כנגד המלעיגין ואל תמנע מלעשות המצוה‬ Tur Orah Hayyim 1 Yehudah b. Teima says: Be strong as a leopard, fast as an eagle, swift as a deer and mighty as a lion to do the will of your Heavenly Parent. [Yehudah b. Teima] specified four things regarding the worship of the blessed creator and begain with being as strong as a leopard, for this is a central principle in the worship of the blessed creator. Sometiems, a person wishes to do a mitzvah and is prevented from doing it on account of people who make fun of him. Therefore, Yehudah b. Teima warned that a person should steel themselves against those who mock him and not fail to perform the mitzvah… Still, the case of the Tur’s band of mockers is quite different from those with whom one shares deep religious values and connections and from whom one draws critical support for a life of observance more broadly. For many women, wearing tefillin takes them “outside of the camp” and turns them into heretics in their own home communities. Rambam and others teach us that a person is not obliged, in the context of tefillin, to ignore those factors of distress. Of course, a long view demands trying to make strategic choices such that future generations of women need not experience the same degree of distress in the context of fulfilling this mitzvah. That will require patience, vigilance and a good amount of help from above. Those taking this approach will avoid speaking about the contemporary obligation in tefillin in gendered terms, even as they will acknowledge that the implementation of a theoretically gender-blind mitzvah against the backdrop of a deeply gendered history cannot (and perhaps should not) happen overnight. Those who have already been raised with a gender-blind model of this mitzvah will be poised to be particularly important and influential leaders in this transitional period. My money is on this fourth approach. As a father, I will in the next year purchase tefillin for my daughter and present it to her just as I would to my sons: as one of the most powerful and beautiful ways that we transform our Torah into something concrete and transform our bodies www.mechonhadar.org 11
This is another line of argument for making sense of a woman who feels ontologically obligated in tefillin, but for whom i...
into agents of God. As a teacher and educator, I will never speak about options or exemptions for women so as not to torpedo this mitzvah’s future, but will also fight to create space for women to make the journey towards tefillin in a way that honors its complicated past. As the Mekhilta teaches us, our connection to tefillin is ultimately derivative of the culture of Torah study we feel obligated to build. My dream is that I will someday learn insights of Torah from my grandsons and granddaughters, because they felt obligated to participate in creating a culture of learning that will continue to sustain our people. I expect that tefillin, in keeping with its essence, will be an integral piece of turning that dream into a reality. www.mechonhadar.org 12
into agents of God. As a teacher and educator, I will never speak about options or exemptions for women so as not to torpe...
Appendix: Historic Opposition to Women Wearing Tefillin Voluntary wearing of tefillin For much of Jewish history, most Jewish communities and authorities expressed no resistance to women wearing tefillin. The Mekhilta’s report above about Michal provides a concrete example of a specific woman who did so, despite being exempt. Talmud Bavli Eruvin 96a reports this tradition with an explicit addendum saying that the Sages were aware of her practice and that of Yonah’s wife and did not protest. Tosefta Eruvin 8:15 also seems unfazed by the possibility that women would put on tefillin when necessary to transport them from one place to another on Shabbat. By contrast, Yerushalmi Berakhot 2:3 challenges this report of rabbinic acquiescence to Michal and Yonah’s wife with the fact that women are exempt from the mitzvot they performed. The assumption is that women should not be doing mitzvot—or at least these mitzvot—if they are exempt from them. R. Abahu thus contradicts the earlier report, declaring that Yonah’s wife was sent away from her pilgrimage and that the Sages objected to Michal’s wearing of tefillin. In any event, the overwhelming majority of medieval authorities follow the Talmud Bavli’s lead, treating its report of rabbinic acceptance as normative. They therefore show no special concern about allowing women to put on tefillin any more than they would for other mitzvot from which they were classically exempt. Many explicitly permit them to do so. [For a few examples, see Tosafot Eruvin 96a, Sefer Hahinukh #421, Meiri on Eruvin 96a, Rashba Rosh Hashanah 33a, Responsa Rashba I:123, Ritva on Eruvin 96b.] ‫—גוף נקי‬A Clean Body Nonetheless, some kept the disapproving strand in the Talmud Yerushalmi alive. R. Yitzhak of Dampierre (France, 12th c.) tried to expound on the basis for the objection to Michal. He, following in the wake of his uncle, R. Tam, was a forceful proponent of the idea that women could voluntarily perform mitzvot from which they were exempt. He was opposed to the notion that the concerns about Michal and Yonah’s wife were grounded in a general discomfort with women performing mitzvot from which they were exempt. Instead, he searched for other reasons to explain the Sages’ opposition in this case. Yonah’s wife, he argued, was sent away for fear of the improper optics of bringing an unnecessary sacrifice to the Temple. In trying to explain the objection to Michal’s tefillin, R. Yitzhak reached for another concept associated with tefillin—the requirement to maintain a clean body. On Talmud Bavli Shabbat 49a, R. Yanai states this requirement as a prerequisite for wearing tefillin. This seems to have been a fairly minimal standard: Abaye defines it as controlling flatulence while wearing tefillin and Rava defines it as not sleeping in them. Nonetheless, we can hear over time attempts to use this requirement to justify not wearing tefillin at all. Tosafot on Shabbat 49a argue that this move is illegitimate, because a person can certainly easily meet this standard and they bemoan the fact that tefillin is a widely neglected mitzvah. Indeed, R. Moshe of Coucy (Semag Asin #3), pleads with the men of his time to at least wear tefillin during prayer; they can surely www.mechonhadar.org 13
Appendix  Historic Opposition to Women Wearing Tefillin Voluntary wearing of tefillin For much of Jewish history, most Jew...
maintain their bodily integrity during such a limited amount of time in such a lofty context. [This helps explain our current practice of wearing tefillin only during morning prayer.] Back to R. Yitzhak: in searching for a way to explain the resistance to Michal, R. Yitzhak suggests that R. Abahu in the Yerushalmi felt that women were not as careful to maintain a clean body as were men. Therefore, even if they are generally allowed to perform mitzvot from which they are exempt, women should not put on tefillin because of these bodily concerns. It is not clear if R. Yitzhak’s claim relates to the standards articulated by Abaye and Rava, or if he is appealing to a sense (or a reality?) that women’s bodies were less clean than those of men, either due to menstruation or the care of children. We should not, however, expect to find full coherence in R. Yitzhak’s innovative gendered use of guf naki, for several reasons: 1) R. Yitzhak is explaining a tradition that he does not consider authoritative, rather than ruling like it. The notion that women could perform mitzvot from which they were exempt was a point of consensus among the Tosafists and they saw Michal’s wearing of tefillin as indicative of this position. 2) He is primarily motivated not by the proper normative meaning of the tradition in the Yerushalmi, but by providing an alternative to an interpretation he wants to marginalize: the idea that women may not more generally perform mitzvot from which they are exempt. 3) He is doing all of this in a culture where barely any men are putting on tefillin, such that any limitation on tefillin and women is of minimal impact on female participation in religious life. It is the Maharam of Rothenberg (Germany, 13th c.) who is the first figure to affirm the normative status of the Yerushalmi’s tradition and to adopt R. Yitzhak’s explanation of it. He thus argues for objecting to women’s donning of tefillin on account of their inability to keep their bodies sufficiently clean. It is worth noting that Maharam, like those before him, had no broader objection to women performing mitzvot from which they were exempt. It is also worth noting that Maharam’s opposition to tefillin for women is followed by Maharil’s opposition to tzitzit for women a century later (also in Germany). Given the awkward way in which guf naki is brought into the gendered conversation about tefillin, it is not implausible to see it as the legal language for an opposition to what might have been perceived as a kind of ritual cross dressing, specific to these mitzvot that are worn. If so, we would expect that opposition to fade if and when tefillin were no longer experienced as necessarily male. [There are many such instances in this area of halakhah, such as in the gendered history of pants.] Rema follows Maharam’s approach and its language of guf naki eventually dominates the Ashkenazi communal landscape, leading to common practice in Orthodox communities until today: women are allowed and even encouraged to perform mitzvot from which they were classically exempted but are dissuaded from putting on tefillin. However, even within the framework of guf naki, there is a solid case for claiming that this is no longer an obstacle. Maharshal (Yam Shel Shlomo Kiddushin 1:64) justifies Maharam’s approach as the way all Sages always thought about women and tefillin. Michal, he argues, avoids rabbinic opprobrium because she was exceptional: she was extremely righteous, was part of a royal family, had no children and could easily keep her body clean, unlike other www.mechonhadar.org 14
maintain their bodily integrity during such a limited amount of time in such a lofty context.  This helps explain our curr...
women. The advent of indoor plumbing and hygienic products has enabled all people to be cleaner than in earlier centuries, and the advances for feminine hygiene have been particularly striking. Even one on the branch of the halakhic tree that is concerned about guf naki in a gendered way can plausibly claim that such concerns no longer apply the way they once did. But as we have shown, guf naki is likely not really the heart of the matter to begin with: tefillin’s connection with Torah study and the issues of gender and class that surround it are much more central. www.mechonhadar.org 15
women. The advent of indoor plumbing and hygienic products has enabled all people to be cleaner than in earlier centuries,...
Responses to Follow-Up Questions Is the exemption from tefillin for women really grounded in the exemption from Torah study? I can see the Mekhilta argues that, but the Shulhan Arukh seems to say otherwise. Don’t we follow the Shulhan Arukh’s lead on such matters? Naturally, anyone interested in practical halakhah and the tradition of its transmission must be concerned with what the Shulhan Arukh and to account for it. In this case, we will see that nothing in the Shulhan Arukh is (or actually could be) in conflict with the analysis in the Mekhilta. Why cite the Mekhilta to begin with? In general, I prefer to cite sources that are the earliest citations of a given idea. It gives a sense of where in time and place they originate and also helps us understand how those ideas played out for later authorities and interpreters. I learned this method most powerfully in a course on rishonim (medieval authorities) I took years ago with Professor Haym Soloveitchik at Yeshiva University. Professor Soloveitchik was painstaking in tracing ideas backwards and forwards in time and emphatic that one could not fully understand an idea without understanding where it came from and what kinds of changes and developments it had undergone along the way. Similarly, if there is a baraita in the Babylonian Talmud with a parallel in the Tosefta, I will also begin by quoting the Tosefta and then add in the ways in which its transmission in the Babylonian Talmud may tell a different story. If nothing is different, I might not mention the Talmud’s version at all, since the idea originated in the Tosefta and nothing changes meaningfully in its later retelling. In this case, the Mekhilta is indeed the first instance of the claim that tefillin is tied to Torah study, but the idea—as I noted in my original piece—is reproduced in the Babylonian Talmud on Kiddushin 34a. Since some have questioned this, let me reproduce that reproduction here. Mishnah Kiddushin 1:7 states that positive commandments caused by time (i.e. they apply at some times and not at others), are gendered: men are obligated in them and women are exempt from them. The Talmud asks whence this is so: .‫תלמוד בבלי קידושין לד‬ ‫ומצות עשה שהזמן גרמא - נשים פטורות. מנלן? גמר מתפילין, מה תפילין - נשים פטורות, אף כל מצות עשה‬ ‫שהזמן גרמא - נשים פטורות; ותפילין גמר לה מתלמוד תורה, מה תלמוד תורה - נשים פטורות, אף‬ .‫תפילין - נשים פטורות‬ Talmud Bavli Kiddushin 34a “Women are exempt from positive commandments caused by time.” Where is this from? It is derived from tefillin; just as women are exempt from tefillin, so too women are exempt from all positive commandments caused by time. And tefillin is derived from the obligation in Torah study; just as women are exempt from Torah stud, so too women are exempt from tefillin. www.mechonhadar.org 16
Responses to Follow-Up Questions Is the exemption from tefillin for women really grounded in the exemption from Torah stud...
This passage says exactly what the Mekhilta says, and adds a step: 1) Torah study is gendered; this is assumed and unsourced. (A few pages earlier, this notion is anchored in a gendered reading of the word banim, which is clearly a post facto Scriptural anchoring of a fact already assumed.) As we saw, rabbinic sources uniformly and unanimously assert that women and slaves are exempt from Torah study. 2) Women are exempt from tefillin because they are exempt from Torah study. 3) Women are exempt from positive commandments caused by time because tefillin is such a commandment and all other similar mitzvot are compared to it for purposes of their gendered nature. I was not engaging the question of the broader exemption from positive commandments caused by time referred to by Mishnah Kiddushin 1:7. Those interested in the history of this category can now see a thorough treatment by Elizabeth Shanks Alexander in her recent Gender and Timebound Commandments in Judaism. For our purposes, what is important is that the Talmud here presents tefillin as generative of, not generated by the gendered exemption from positive commandments caused by time. Tefillin’s gendered nature is clearly presented here as derivative of a gendered conception of Torah study. As we saw from the Mekhilta, that gendered conception is actually just one part of a broader class conception that exempts women and slaves from Torah study. Indeed, this basic relationship between Torah study and tefillin spelled out in the Mekhilta and in Talmud Bavli Kiddushin is unambiguously affirmed by the Rambam: ‫ספר המצוות לרמב"ם מצות עשה יג‬ ‫ושתי מצות אלו אין הנשים חייבות בהן לאמרו יתעלה (ס"פ בא) בטעם חיובם למען תהיה תורת י"י בפיך‬ .‫ונשים אינן חייבות בתלמוד תורה. וכן בארו במכילתא‬ Rambam, Sefer Hamitzvot, Positive Commandment #13 Women are not obligated in these two commandments (of the tefillin of the arm and of the head), on account of the reason the Exalted One gave for their obligation: “So that the Torah of God will be in your mouth.” Women are not obligated in Torah study. And so they explained in the Mekhilta. Seems simple, no? But another passage in the Babylonian Talmud and the ways in which it is quoted have caused some confusion on this front. Mishnah Berakhot 3:3 lays out a number of exemptions and obligations as well: ‫משנה מסכת ברכות פרק ג משנה ג‬ :‫נשים ועבדים וקטנים פטורין מקריאת שמע ומן התפילין וחייבין בתפלה ובמזוזה ובברכת המזון‬ Mishnah Berakhot 3:3 Women, slaves and minors are exempt from reading the Shema and from tefillin and are obligated in prayer, mezuzah and the grace after meals. www.mechonhadar.org 17
This passage says exactly what the Mekhilta says, and adds a step  1  Torah study is gendered  this is assumed and unsourc...
On its own, this is nothing more than a collection of mitzvot that do and don’t divide by class. While gender is one subcomponent here, we see that slaves and minors are exempted as well. The Mishnah tells us nothing about motivations, origins or values. In the printed versions of the Babylonian Talmud, we have the following five short statements that explore this only briefly: ‫תלמוד בבלי מסכת ברכות דף כ עמוד ב‬ ‫1) קריאת שמע, פשיטא! מצות עשה שהזמן גרמא הוא, וכל מצות עשה שהזמן גרמא נשים פטורות! - מהו‬ .‫דתימא: הואיל ואית בה מלכות שמים - קמשמע לן‬ .‫2) ומן התפלין פשיטא! - מהו דתימא: הואיל ואתקש למזוזה - קמשמע לן‬ ‫3) וחייבין בתפלה דרחמי נינהו. - מהו דתימא: הואיל וכתיב בה +תהלים נ"ה+ ערב ובקר וצהרים, כמצות‬ .‫עשה שהזמן גרמא דמי - קמשמע לן‬ .‫4) ובמזוזה פשיטא! - מהו דתימא: הואיל ואתקש לתלמוד תורה - קמשמע לן‬ ‫5) ובברכת המזון פשיטא! - מהו דתימא: הואיל וכתיב +שמות ט"ז+ בתת ה' לכם בערב בשר לאכל ולחם‬ .‫בבקר לשבע, כמצות עשה שהזמן גרמא דמי - קמשמע לן‬ Talmud Bavli Berakhot 20b 1) “The reading of the Shema”—That is obvious [that women are exempt]! It is a positive commandment caused by time, and women are exempt from all positive commandments caused by time! What might you have thought? Since it includes the acceptance of the sovereignty of heaven [women ought to have been obligated]. The Mishnah comes to clarify that this is not so. 2) “And from tefillin”—That is obvious [that women are exempt]! What might you have thought? Since it is juxtaposed with mezuzah [in the Torah, women ought to be obligated in it, just as they are obligated in mezuzah]. The Mishnah comes to clarify that this is not so. 3) “And are obligated in prayer”—Because it is a request for mercy. What might you have thought? Since the verse “Evening, morning and afternoon” is written about prayer, we might have thought that it is a positive commandment caused by time [which would then be gendered]. The Mishnah comes to clarify that this is not so. 4) “And in mezuzah”—That is obvious [that women are obligated]! What might you have thought? Since it is juxtaposed to Torah study [in the Torah, women ought to be exempt from it, just as they are exempt from Torah study]. The Mishnah comes to clarify that this is not so. 5) “And in the grace after meals”—That is obvious! What might you have thought? Since the verse says “When God gives you meat in the evening to eat and bread in the morning to satisfy you,” we might have thought that [blessing after food] it is a positive commandment caused by time [which would then be gendered]. The Mishnah comes to clarify that this is not so. This text confirms one key thing we have already seen. Again, Torah study is assumed to be gendered; this point needs no proof and is so clear that it might be used—even erroneously—to derive other points of law. In addition, we see that mezuzah and Torah study function as fixed, opposite points: women are obviously obligated in the former and obviously exempt from the latter. The only question is whether tefillin should follow the former or the latter in terms of its gendered nature. This also mirrors the Mekhilta passage I quoted in my piece, which acknowledges this potential ambiguity. The Talmud here confirms the Mekhilta’s interpretation there: Tefillin is to be aligned with Torah study, not with mezuzah. www.mechonhadar.org 18
On its own, this is nothing more than a collection of mitzvot that do and don   t divide by class. While gender is one sub...
However, there is an inkling of something different here. Five times the gemara treats the Mishnah’s rulings as obvious; five times it explains how the Mishnah prevents us from being led astray by other ways of thinking. [There was originally an exclamation of ‫ פשיטא‬prior to the section on prayer as well; its erroneous erasure by a scribe misreading Rashi will not concern us here. A quick glance at the Tosafot on the top of the page confirms this point, as do the manuscript witnesses to this passage.] What is obvious about the Mishnah’s rulings? The Talmudic passage here seems to anchor that obviousness in our knowledge of the rule that positive commandments caused by time are gendered and those that are not are not. If one knows that rule, wouldn’t one know all of the Mishnah’s rulings? Put another way, what does this Mishnah add that we didn’t already know from Mishnah Kiddushin 1:7? The Talmud must provide errant pathways we might have followed in each case in order to justify the seeming redundancy of this Mishnah. Another version of the gemara—found in many manuscripts and preserved in the Rif, makes this linkage between Mishnah Berakhot 3:3 and Mishnah Kiddushin 1:7 by way of explanation of the Mishnah’s rulings rather than by being astonished by its apparent superfluity. Here is that version, quoted from the Rif: ‫רי"ף מסכת ברכות דף יא עמוד ב-יב עמוד א‬ ‫קרית שמע ותפילין דהוה ליה מצות עשה שהזמן גרמא וכל מצות עשה שהזמן גרמא נשים פטורות תפלה‬ ‫ומזוזה וברכת המזון דהוה ליה מצות עשה שלא הזמן גרמא וכל מצות עשה שלא הזמן גרמא נשים חייבות‬ Rif Berakhot 11a-12b The reading of the Shema and tefillin are positive commandments caused by time, and women are exempt from all positive commandments caused by time. Prayer, mezuzah and the grace after meals are positive commandments not caused by time, and women are obligated in all positive commandments not caused by time. Both versions of the gemara seem to claim that we know that the reading of the Shema and tefillin are gendered because they belong to the category of commandments that are positive and caused by time. In the first version of the gemara, this is a truth that endures despite potential evidence to the contrary; in the second version, it is a simple assertion. Does this mean that, according to this gemara, women’s exemption from tefillin is a consequence of the gendered nature of the set of positive commandments caused by time? You might argue that the gemara here rejects the Mekhilta and its grounding of tefillin in Torah study. As further evidence for this claim, one might point to a number of medieval and early modern authorities that seem to use similar language. Here are a few examples: ‫ספר החינוך מצוה תכא‬ ...‫ונוהגת מצוה זו בכל מקום ובכל זמן, בזכרים אבל לא בנקבות, לפי שהיא מצות עשה שהזמן גרמא‬ Sefer Hahinukh #421 This mitzvah [of tefillin] applies in all times and places, to men but not to women, because it is a positive commandment caused by time… www.mechonhadar.org 19
However, there is an inkling of something different here. Five times the gemara treats the Mishnah   s rulings as obvious ...
‫בית יוסף אורח חיים סימן לח‬ ‫ונשים ועבדים פטורים. משנה בפרק מי שמתו (ברכות כ.) ויהיב טעמא בגמרא משום דהוי מצות עשה שהזמן‬ .‫גרמא וכל מצות עשה שהזמן גרמא נשים פטורות‬ Beit Yosef OH 38 “Women and slaves are exempt [from tefillin]. This is a Mishnah in the 3rd chapter of Berakhot. The gemara gives an explanation: on account of it being a positive commandment caused by time, and women are exempt from all positive commandments caused by time. ‫שולחן ערוך אורח חיים הלכות תפילין סימן לח סעיף ג‬ .‫נשים ועבדים פטורים מתפילין, מפני שהוא מצות עשה שהזמן גרמא‬ Shulhan Arukh OH 38:3 Women and slaves are exempt from tefillin, because it is a positive commandment caused by time. Does this sort of language indicate that the Mekhilta is rejected in favor of another explanation? Not at all. R. Refael Mordechai Yehoshua Shaul (Turkey, 18th-19th c.) comments on this issue in his Dover Mesharim on Rambam Bikkurim 11:17. He attacks Sefer Hahinukh for stating that women are exempt from tefillin because it is a positive commandment caused by time. How can this be, given that the Talmud in Kiddushin is explicit that women’s exemption from tefillin is derivative of Torah study and is generative of the exemption from positive commandments caused by time? He notes that the Rambam in Sefer Hamitzvot is consistent with the gemara and the parallel passage in the Mekhilta. He leaves this challenge unresolved. His son R. Avraham Shaul (Turkey, 19th c.), in a later gloss on this passage, notes that the same challenge can be leveled against the Beit Yosef, the Bah and the Perishah, all of whom use similar language to that of the Hinukh. R. Avraham resolves the problem: ‫...לפי קעד"ן לומר דלא ניידי כל הני רבוות' מהאי היקשא דתפילין מת"ת ילפי' כמו שאמרו בש"ס דקידושין‬ ‫הנז' אבל הא מיהא תפילין מ"ע שהזמן גרמא היא דמינה נפקא כל מ"ע דהז"ג ותפילין עצמם היא מתלמוד‬ ‫תורה ועליה קאי כל הני מלכי רבנן אבל אין כונתם לפסוק עיקר דין תפילין עצמם מהיכא נפקא אלא כונתן‬ ‫לפסוק דנשים פטו' ממצוה זאת דתפילין והיינו טעמא משום דהוא מ"ע שהז"ג אבל תפילין עצמם אה"נ דנפקא‬ ‫מהיקשא דת"ת ותדע דכן הוא דהרי בש"ס דברכות ד"כ נקט משום שהיא מ"ע שהז"ג כמ"ש רש"י ז"ל יע"ש‬ ‫וקאי עלה דקידושין דל"ד ע"א דאלת"ה קשיא דאיך נקטו הכא בש"ס דברכות דטעמא דנשים פטורות הוא‬ ‫משום דתפילין הם מ"ע שהז"ג וכל מ"ע שהז"ג נשים פטורות והתם בקידושין נקט דתפילין נשים פטורות‬ .‫משום דגמר לה מת"ת אלא מוכרח הדבר לומר כדכתיבנא ופשוט‬ …In my humble opinion, none of our masters departed from the Talmud’s derivation of tefillin from Torah study in Kiddushin. Nonetheless, tefillin is indeed a positive commandment caused by time from which we derive [the gender exemption from] all other positive commandments caused by time, while tefillin itself is derived from Torah study and all of those majestic rabbis were assuming this. Their intention was not to make a ruling regarding the origins of [the gendered exemption from] tefillin Rather, their intention was to rule that women are exempt from this mitzvah of tefillin and the explanation is because it is a positive commandment caused by time, but tefillin itself is certainly derived from the connection with Torah study. This must be true, because Berakhot 20 states that women are exempt from tefillin because it is a positive www.mechonhadar.org 20
                                                                                             .                            ...
commandment caused by time (see Rashi there) and this assumes [the process laid out in] Kiddushin 34a. If you don’t say this, then how could the Talmud in Berakhot given the reason for women’s exemption from tefillin being on account of its being a positive commandment caused by time while the Talmud in Kiddushin takes the position that women are exempt because we derive it from Torah study. Rather, it must be as I said, and the matter is simple. In other words, R. Avraham argues that there is no reason to assume that the gemara in Berakhot is rejecting the gemara in Kiddushin. Rather, the gemara in Kiddushin is, like the Mekhilta, focused on driving values and origins. That passage plainly and unambiguously states that the gendered nature of tefillin is derivative of Torah study and generative of positive commandments caused by time. The gemara in Berakhot is reflecting that once that derivative and generative work has been done, tefillin resides in the very category it helped create: the set of positive commandments caused by time. Therefore, though its gendered nature is legally and logically prior to that category, it nonetheless lives in that category once it generates it. All the gemara in Berakhot notes is that we would expect all positive commandments caused by time to be gendered and therefore the Mishnah need not rule on specific cases. When the Beit Yosef says ‫ ,יהיב טעמא‬he means that the gemara provides an explanation, not an etiology, for tefillin’s gendered nature. The gemara is saying that it makes sense (or is obvious) that the Mishnah rules that women are exempt from this mitzvah given that it is, after all, a positive commandment caused by time. Similarly, the Shulhan Arukh merely quotes this same language and appeals to the reader to understand why it makes perfect sense that tefillin is gendered; after all, they belong to a gendered category. This is not a comment weighing in on the sugya in Kiddushin, which is a discussion of origins, which was my focus. There is no way to dismiss that explicit sugya in Kiddushin and its channeling of the Mekhilta. The Shulhan Arukh’s language merely reflects the end result of that multi-step process: tefillin generates and ultimately resides in the category of positive commandments caused by time. The concern around guf naki seems serious and seems like it might track with one’s level of obligation. Specifically: might we not say that one who is exempt from tefillin cannot be entrusted with such a serious mitzvah? Let us remember than for many medieval authorities (I cited them in my piece), women are explicitly permitted to wear tefillin, despite their exemption. But this question emerges from the thread of thought and psak exemplified first by the Maharam of Rothenberg and later the Rema, who hold that women’s voluntary wearing of tefillin should not be tolerated. For them and for those who limit their rulings to practices in accord with them, is there a way of justifying women who wear tefillin without claiming that Torah study is now a gender-blind obligation, along with its physical corollary of tefillin? Put another way: is there a way to address the concern of guf naki without addressing the more fundamental question of obligation? Perhaps not. Indeed, I argued that the whole gendered application of the concept of guf naki was itself an effort to reinterpret a strand of thought that originally assumed women could not put on tefillin because they were exempt. R. Yitzhak of Dampierre, respecting this source but resistant to its legal assumption, proposed the framework of guf naki as an alternate framework for www.mechonhadar.org 21
commandment caused by time  see Rashi there  and this assumes  the process laid out in  Kiddushin 34a. If you don   t say ...
understanding its concern. To the extent that guf naki is actually nothing more than the preservation of an age-old resistance to women wearing tefillin in different legal terminology, then this concern ought not to be easily dismissed. As I noted in my piece, I indeed would not expect communities that continue to exempt contemporary women from Talmud Torah to have more than a few isolated individual women who wear tefillin. Magen Avraham indeed argues that women can never be trusted to keep their bodies sufficiently clean (or to control their flatulence) as long as they are not truly obligated in this mitzvah by an imperative more transcendent than their internal, personal motivation. Arukh Hashulhan says something similar. I think it is correct to say that there is a robust strand in halakhic thought that would never make much room for women to wear tefillin so long as they are not obligated. And for one who understands guf naki to be about flatulence—in keeping with the gemara’s discussion of this concept—it is indeed hard to imagine that anything would change in the contemporary world. This strand can trace its roots back to the tradition I cited from the Talmud Yerushalmi. But this is only one side of the story. Guf naki was the language for channeling that age-old resistance in the context of a legal culture that generally supported women’s voluntary performance of mitzvot. A reassessment of guf naki, however, might be precisely the way that a legal culture generally deferential to the Maharam and the Rema would find its way back to the many medieval positions that did permit women to wear tefillin voluntarily. Guf naki is indeed about flatulence in its Talmudic context, but it is not at all obvious that that is what it means when R. Yitzhak borrows it from that context and genders it. I cited the Maharshal who is clear that guf naki as used by R. Yitzhak ought to be understood as referring to hygiene issues primarily related to economic status and the presence of children. Anyone who adopts that definition must acknowledge that there have been dramatic shifts in recent centuries and decades such that the concern would no longer apply to most women at most points in their life (or moments in the day). Even Magen Avraham and Arukh Hashulhan do not obviously define guf naki as related to flatulence in the context of this term’s use by R. Yitzhak. If so, even they might not be concerned about exempt women voluntarily performing this mitzvah in a time and place where it is so easy to attain the standard demanded. In short, to the extent guf naki is actually about standards of cleanliness, it makes sense to take a different approach in the contemporary world. To the extent guf naki is the legal language for channeling an age-old opposition to women voluntarily wearing tefillin (found in the Yerushalmi but not in the Bavli), that opposition should not be expected to fade until a more thoroughgoing reassessment of the mitzvah of Torah study triggers a corresponding reassessment of the gendering of the obligation to wear tefillin. www.mechonhadar.org 22
understanding its concern. To the extent that guf naki is actually nothing more than the preservation of an age-old resist...
The Rabbinic Shabbat: Shamor and Zakhor in Stereo R. Ethan Tucker, Center for Jewish Law and Values Every Friday night, Jews around the world welcome Shabbat in song with the following poetic line: ‫שמור וזכור בדיבור אחד‬ ‫השמיענו אל המיוחד‬ “Guard”/Shamor and “Be mindful of”/Zakhor in one utterance The Unique God caused us to hear This opening line of the poem ‫/לכה דודי‬L’kha Dodi, familiar to so many, was written by R. Shlomo Halevi Alkabets, the great kabbalistic poet of 16th century Tzfat. What does it mean? It is clear that it refers to the two divergent formulations of the Ten Commandments in Exodus and Deuteronomy. The former begins with the word ‫“/זכור‬Be mindful of” and the latter with ‫“/שמור‬Guard.” As a child, I always learned this line as an attempt to harmonize two conflicting articulations of the same idea. The Torah presents the Ten Commandments as a historical utterance by God to the Jewish people: how can there be two different versions of this speech in the Torah? To this, the tradition answers: the two versions were spoken in stereo sound, with God simultaneously saying both. The “mono” formulations found in Exodus and Deuteronomy, respectively, are only half of the story. According to this reading, the terms ‫”/זכור‬Be mindful of” and ‫”/שמור‬Guard” are really synecdoche for the versions of the Ten Commandments found in the second and fifth books of the Torah, respectively. These prominent variations, along with many others, were all included in a single symphony of divine speech. A deeper investigation, however, reveals that this line packs an even greater punch. The assertion that ‫ זכור‬and ‫ שמור‬were uttered at once is in fact a bold statement about the essence of Shabbat. This assertion of stereophonic divine speech attempted to resolve an internal tension around Shabbat in the Torah itself, lashed out at competing visions of Shabbat in the Second Temple and laid the groundwork for the rabbinic Shabbat practiced by so many observant Jews today. By more deeply understanding the background to this line, we can not only understand Shabbat better but perhaps even enable Jews who are too often divided by Shabbat to understand one another. Origins in the Mekhilta Like most lines in our prayers, the first line of ‫ לכה דודי‬has an intertext, another source on which it is based and from which it draws linguistic and conceptual inspiration. In this case, the intertext is found in the Mekhilta, a commentary on the book of Exodus drawing on traditions www.mechonhadar.org 23
The Rabbinic Shabbat  Shamor and Zakhor in Stereo R. Ethan Tucker, Center for Jewish Law and Values Every Friday night, Je...
from the sages of the early first millennium of the common era, the same sages who feature prominently in the Mishnah. Here is the full passage: ‫מכילתא דרבי ישמעאל יתרו - מסכתא דבחדש פרשה ז‬ .‫"זכור" ו"שמור", שניהם נאמרו בדיבור אחד‬ .‫"מחלליה מות יומת" ו"ביום השבת שני כבשים", שניהם בדיבור אחד נאמרו‬ .‫"ערות אשת אחיך" ו"יבמה יבא עליה", שניהם נאמרו בדיבור אחד‬ .‫"לא תלבש שעטנז" ו"גדילים תעשה לך" שניהם נאמרו בדיבור אחד‬ ‫מה שאי איפשר לאדם לומר כן, שנאמר "אחת דבר אלהים שתים זו שמענו", ואומר "הלא כה דברי כאש נאם‬ ":'‫ה‬ Mekhilta of R. Yishmael, Yitro, Bahodesh #7 “Be mindful of” and “Guard”, both were said at once. “Those who desecrate it shall be put to death” and “On the Shabbat day, sacrifice two lambs,” both were said at once. “Do not be intimate with your brother’s wife” and “her levir shall be intimate with her”, both were said at once. “Do not wear a mixture of wool and linen” and “Place tassels on your garment”, both were said at once. A human being could not have said these things, as it says, “God spoke one thing and we heard two,” and it says, “Is not my word like fire? Says God.” This passage in the Mekhilta features four examples of passages in the Torah that were “said at once”, the first of which refers to the simultaneous utterance of ‫ זכור‬and ‫ שמור‬at Mount Sinai. But a look at the complete list reveals that we are dealing here not with conflicting articulations, but with conflicting ideas and laws. Let’s look at the other three examples here: Shabbat Observance and the Temple Service The Mekhilta notes that Exodus 31:14 decrees the death penalty for any violation of Shabbat. The Torah explicitly denotes burning a fire on Shabbat as one such desecration (Exodus 35:3) and rabbinic tradition understands slaughtering animals to be another such core violation of the day’s sanctity (see Mishnah Shabbat 7:2). And yet, Numbers 28:9 mandates the sacrifice of two lambs in the Temple each Shabbat, an act which involves both slaughter and the use of fire! The Mekhilta asserts: these two conflicting commands were nonetheless uttered at once. Incest Laws and Levirate Marriage In the Torah’s listing of incest prohibitions, a man is forbidden from being intimate with his brother’s wife. Leviticus 18:16 bans this act, and Leviticus 20:21 declares that those who violate the ban will die childless. The prohibition clearly applies even after the brother is divorced from or has pre-deceased his wife, since being intimate with any man’s wife is a forbidden capital www.mechonhadar.org 24
from the sages of the early first millennium of the common era, the same sages who feature prominently in the Mishnah. Her...
crime spelled out under its own rubric in Leviticus 18:20 and 20:10. And yet, Deuteronomy 25:5 commands a man whose brother has died childless to marry his widow in order to redeem his brother’s line. The Mekhilta asserts: these two conflicting commands were nonetheless uttered at once. Tzitzit and the ban on wool and linen mixtures Deuteronomy 22:11 forbids the wearing of ‫—שעטנז‬explained as any cloth that combines wool and linen together. [This prohibition is also articulated in Vayikra 19:19.] And yet, Deuteronomy 22:12, the very next verse, commands placing tassels on the four corners of one’s garments. From the version of this command in Numbers 16:38, we learn that the tassel is a cord dyed blue, clearly made of wool. This cord must be placed on the corners of all garments, many of which are made of linen, thus violating the prohibition on mixing the two. The Mekhilta asserts: these two conflicting commands were nonetheless uttered at once. The Mekhilta concludes by noting that human beings are incapable of these sorts of simultaneous utterances. From the context, it is clear that we are not simply speaking about articulating two sounds at once. Rather, it is a reflection on the fact that when people command a thing and its opposite, they sound incoherent and are ignored. By contrast, God and God’s Torah have the unique gift of multivocality, such that one utterance from a single source sounds to our ears like a chorus. The heat of the divine fire emits tongues of flame all around it. To use a metaphor from elsewhere in rabbinic literature: the energy of a single strike of a hammer on a rock sends shards of many sizes in multiple directions. God’s word is unlike human speech: it can contain multitudes. In each of the cases the Mekhilta addresses, the conflicting categories must make room for one another, as one command is an exception to the other. This fuller context of the Mekhilta makes us realize that something similar is going on with ‫ זכור‬and ‫ שמור‬as well. What is the conflict here and how do these two commands coexist? Shabbat’s Split Personality in the Torah We can uncover the deeper meaning of the Mekhilta by recognizing that the words ‫זכור‬ and ‫ שמור‬here signify much more than themselves. They are metonymic terms for the Torah’s two very different presentations of Shabbat and the reasons given for its observance. In fact, they stand for dueling conceptions as to what Shabbat is all about. www.mechonhadar.org 25
crime spelled out under its own rubric in Leviticus 18 20 and 20 10. And yet, Deuteronomy 25 5 commands a man whose brothe...
‫/שמור‬Shamor Let us begin with the ‫ שמור‬model as presented in Deuteronomy: ‫דברים ה:יא-יד‬ ‫שמור את יום השבת לקדשו כאשר צוך יקוק אלקיך: ששת ימים תעבד ועשית כל מלאכתך: ויום השביעי‬ ‫שבת ליקוק אלקיך לא תעשה כל מלאכה אתה ובנך ובתך ועבדך ואמתך ושורך וחמרך וכל בהמתך וגרך אשר‬ ‫בשעריך למען ינוח עבדך ואמתך כמוך: וזכרת כי עבד היית בארץ מצרים ויצאך יקוק אלקיך משם ביד‬ :‫חזקה ובזרע נטויה על כן צוך יקוק אלקיך לעשות את יום השבת‬ Deuteronomy 5:11-14 Guard the sabbath day, to keep it holy, as the Lord your God commanded you. Six days shall you labor and do all your melakhah; but the seventh day is a sabbath for the Lord your God; do not do any manner of melakhah on it, not you, your son, your daughter, your male or female servant, your ox, your donkey, any of your animals nor the stranger within your gates; so that your male and female servants can rest just like you. And so that you will be mindful that you were a slave in the land of Egypt, and the Lord your God took you out of there with a mighty hand and an outstretched arm; therefore the Lord your God commanded you to perform the sabbath day. Another passage uses similar language: ‫שמות כג:יב‬ :‫ששת ימים תעשה מעשיך וביום השביעי תשבת למען ינוח שורך וחמרך וינפש בן אמתך והגר‬ Exodus 23:12 Six days you shall do what you do, but on the seventh day you shall stop, so that your ox and your donkey may rest and so that your servant and the stranger may be refreshed. The ‫ שמור‬model gives a very clear reason for observing Shabbat. Shabbat is about taking home the lessons of being a slave and making sure that the economically disadvantaged get a chance to rest. Shabbat here emerges from Jewish history. We have first-hand experience of a culture of incessant work; when God redeemed us from that state, we took on a corollary obligation: never again to create a culture that economically enslaves people without a break. Shabbat is a policy response to that dystopia, which was a historical reality during our time in Egypt and remains a constant threat to humanity’s spiritual health. This rationale calls us away from the labors of the week so that we can enjoy rest and bodily rejuvenation. Following the lead of the ‫ שמור‬model, we would be driven to maximize pleasure, engaging in activities that emphasize our freedom, such as eating, drinking, sleeping and otherwise experiencing the ‫/ענג‬pleasure of Shabbat. www.mechonhadar.org 26
               Shamor Let us begin with the                model as presented in Deuteronomy                       -      ...
And how would we define the opaque term ‫/מלאכה‬melakhah, which constitutes the core of what we must avoid on Shabbat? In the world of ‫ ,שמור‬where we are focused on drawing lessons from our past slavery and granting rest to the weary, we would likely focus on servile work, the difficult and drudgery-filled tasks that define our week and that threaten to overtake our moments of freedom. For a contemporary Jew listening to the distinctive voice of ‫,שמור‬ going in to the office or demanding work from others would be the cardinal violations of the Torah’s vision of a day free of ‫.מלאכה‬ Finally, following ‫ שמור‬alone, we would not necessarily imagine that Shabbat must fall on a specific day of the week. Any single day out of seven could be set aside to accomplish the goal of avoiding incessant work, and while the day is described in Deuteronomy as something to be sanctified, its orientation seems directed towards human society and its needs. To the extent it is holy, it is because human beings, themselves holy, are in desperate need of a day that keeps them free. ‫/זכור‬Zakhor Let us now turn to the other presentation of Shabbat, in Exodus: ‫שמות כ:ז-י‬ ‫זכור את יום השבת לקדשו: ששת ימים תעבד ועשית כל מלאכתך: ויום השביעי שבת ליקוק אלקיך לא תעשה‬ ‫כל מלאכה אתה ובנך ובתך עבדך ואמתך ובהמתך וגרך אשר בשעריך: כי ששת ימים עשה יקוק את השמים‬ :‫ואת הארץ את הים ואת כל אשר בם וינח ביום השביעי על כן ברך יקוק את יום השבת ויקדשהו‬ Exodus 20:7-10 Be mindful of the sabbath day, to keep it holy. Six days shall you labor and do all your melakhah; but the seventh day is a sabbath for the Lord your God; do not do any manner of melakhah on it, not you, your son, your daughter, your male or female servant, your animals nor the stranger within your gates; for in six days the Lord made the heaven, the earth, the sea, and all that is in them, and rested on the seventh day; therefore the Lord blessed the sabbath day and sanctified it. Another passage uses similar language and gives a fuller account: ‫בראשית ב:א-ג‬ ‫ויכלו השמים והארץ וכל צבאם: ויכל אלקים ביום השביעי מלאכתו אשר עשה וישבת ביום השביעי מכל‬ ‫מלאכתו אשר עשה: ויברך אלקים את יום השביעי ויקדש אתו כי בו שבת מכל מלאכתו אשר ברא אלקים‬ :‫לעשות‬ www.mechonhadar.org 27
And how would we define the opaque term                  melakhah, which constitutes the core of what we must avoid on Sha...
Genesis 2:1-3 The heaven and the earth and all their hosts were completed. On the seventh day, God completed the melakhah which He had done. God stopped on the seventh day from doing all the melakhah that He had done. God blessed the seventh day and sanctified it, for on it He stopped doing all the melakhah that God had created. The ‫ זכור‬model offers a very different reason for observing Shabbat. Here, Shabbat is an act of imitating God’s behavior on the seventh day of the creation of the world. It does not emerge from Jewish, or even human, history; it predates it. Shabbat is an opportunity for human beings to be like God and to frame their relationship to the physical world of creation in which they live. By imitating God’s stopping and resting, we also acknowledge that we did not create the world and therefore do not have the right to dominate it without limits. Creation is from God; it is perhaps, at least in part, for humans, but it is not simply the plaything of humans to do with what they will. Shabbat reminds us of our place in the divine world that graciously contains us. This rationale calls us to draw close to God the creator, by imitating the divine as fully as possibly on this day. Following the lead of the ‫ זכור‬model, we would be driven to maximize our spiritual state, engaging in spiritual contemplation, learning and prayer. A ‫-זכור‬influenced definition of ‫/מלאכה‬melakhah would focus on the Torah’s use of this term to describe everything that God did in the first six days. Refraining from ‫ מלאכה‬means stepping back from creation. Anything that transforms or meddles with the world in any significant way is banned as we try to emulate the Creator’s cessation of all physical creativity on the seventh day. Even the performance of light tasks that are physically transformative is a threat to the vision of a grateful humanity living in a world completely at rest. Finally, in the ‫ זכור‬model, the day itself is something sacred, sanctified by God prior to any social need that this day might serve. It is hardwired into creation itself and its observance on a specific day of the week is critical. Far from a human convention, the seventh day designated as Shabbat theoretically traces back in perfect seven-day cycles back to the beginning of the world. Its holiness is intrinsic, not extrinsic, and it must be guarded from desecration. Balance and Conflict In many ways, these two models, ‫ זכור‬and ‫ ,שמור‬complement and complete one another. The rationales of exodus and creation draw out different dimensions of the day and point us at once to a quest for holiness and a concern for social justice. But it doesn’t take a great deal of effort to understand the Mekhilta’s perspective that these two models also compete and can www.mechonhadar.org 28
Genesis 2 1-3 The heaven and the earth and all their hosts were completed. On the seventh day, God completed the melakhah ...
easily be in conflict. Sometimes, maximizing enjoyment and a sense of freedom is dramatically advanced by dominating and manipulating the physical world. Sometimes, deep spiritual practices that connect us to God can be taxing and even stress inducing. ‫ זכור‬and ‫ שמור‬and the divergent rationales that they represent do not always point us in the same direction and they compete for our attention and our loyalty. Not only is this tension present on a religious and philosophical level, but it was played out historically in the religious world inhabited by our Sages. By looking at other frameworks of Shabbat in the Second Temple period, we can see just what a distinctive choice our Sages made in their reading of the Torah, both in the Mekhilta and beyond. Second Temple Approaches to Shabbat Observance: Extremes A number of Second Temple sources give us a window into pre- and non-rabbinic approaches to Shabbat observance. Specifically, they help us imagine what it might have looked like to listen primarily or exclusively to either the ‫ זכור‬or ‫ שמור‬formulations. How might we observe Shabbat if we read the Torah more selectively and monochromatically? ‫—זכור‬Honoring God and creation We find several indications of a Shabbat practice that focuses almost exclusively on Shabbat as a day to connect to God and to honor God’s creation. Indeed, the Bible itself assumes this dimension in various places. II Kings 4:23 presumes that Shabbat would normally have been a time to seek out holy men, presumably for some sort of spiritual guidance or elevation. The Bible also highlights Shabbat’s function as a day for peak engagement with God through the Temple service. This connection was apparently so intense and so central to the essence of this day that Lamentations 2:6 describes the Temple’s destruction as “God causing Shabbat to be forgotten in Zion.” Many Second Temple Jews followed the lead of these sources. Josephus (Against Apion 1:161) reports that Jews in Jerusalem used to “rest on every seventh day on which times they make no use of their arms, nor meddle with husbandry, nor take care of any affairs of life, but spread out their hands in their holy places, and pray till the evening.” Similar to contemporary observances of Yom Kippur, this observance of Shabbat strongly channels the ‫ זכור‬model, where desisting from labor primarily sets the stage for connecting with God. The ‫ זכור‬model also calls for a radical withdrawal from the world. This approach is perhaps no better illustrated than in the following passages the Dead Sea Scrolls: www.mechonhadar.org 29
easily be in conflict. Sometimes, maximizing enjoyment and a sense of freedom is dramatically advanced by dominating and m...
Damascus Document XI, translation from G. Vermes, The Complete Dead Sea Scrolls in English, New York 1997 But should any man fall into water or (fire), let him not be pulled out with the aid of a ladder or rope or (some such) utensil. 4Q265 If a person falls into water on Shabbat, one should extend him his garment but not pick up any tool. Assuming these passages address cases that include danger to life, they may not sign on to the rabbinic view that Shabbat is suspended in order to save lives. That itself would not be shocking; the rabbinic view on that matter is far from self-evident in the Torah itself. If Shabbat is a capital crime in the Torah, why would it be obvious that one would violate it in order to save another person’s life? Indeed, while rabbinic sources are unanimous on the suspension of Shabbat restrictions in the face of danger to life, there is robust debate over how to ground this norm in the Torah and what its precise limits are. Dead Sea communities may well have thought differently about this. But more significant, for our purposes, is the clear allergy in these texts to the use of tools. Even when the tool would be taken in order to lift someone out of a pit, it is completely and totally forbidden to use it. This prohibition flows from a fervent obedience to the ‫זכור‬ model: tools—even ones like ladders that don’t even transitively do anything—represent the essence of human domination and manipulation of the world. There is hardly a more meaningful way of abjuring control of the natural world than by withdrawing from tools, figuratively placing oneself back in pre-historic times. Other pre-rabbinic sources spell out this naturalistic pietism in great detail. The following text from the book of Jubilees, while containing a mix of ideas and practices, features a few rules that are very much in keeping with the ‫ זכור‬model of Shabbat: Jubilees 50, translation from R.H. Charles, The Apocrypha and Pseudepigrapha of the Old Testament, Oxford 1913 …whoever desecrates that day, whoever lies with (his) wife, or whoever says he will do something on it, that he will set out on a journey thereon in regard to any buying or selling: and whoever draws water thereon which he had not prepared for himself on the sixth day, and whoever takes up any burden to carry it out of his tent or out of his house shall die. Ye shall do no work whatever on the Sabbath day save what ye have prepared for yourselves on the sixth day, so as to eat, and drink, and rest, and keep Sabbath from all work on that day, and to bless the Lord your God, who has given you a day of festival and a holy day: and a day of the holy kingdom for all Israel is this day among their days for ever… www.mechonhadar.org 30
Damascus Document XI, translation from G. Vermes, The Complete Dead Sea Scrolls in English, New York 1997 But should any m...
And every man who does any work thereon, or goes a journey, or tills (his) farm, whether in his house or any other place, and whoever lights a fire, or rides on any beast, or travels by ship on the sea, and whoever strikes or kills anything, or slaughters a beast or a bird, or whoever catches an animal or a bird or a fish, or whoever fasts or makes war on the Sabbaths: The man who does any of these things on the Sabbath shall die… This passage gives us a strong sense of a Shabbat world that is frozen in time, protected in an absolute sense from human creativity. Everything must be prepared in advance, including even the water that one wishes to drink on Shabbat. Objects must not be moved from the home into the larger world. Sexual intimacy—the act that contains within it the human power to create new life—is forbidden. This is a world at rest, supported by a community that follows the divine example. There is a nod in Jubilees to the aspect of Shabbat that focuses on pleasure. When this text forbids fasting on Shabbat—on pain of death!—it reveals some degree of complexity in its conception of the day. But for some Jews, a ‫ זכור‬model of Shabbat warranted and even recommended fasting and ascetic deprivation. Numerous Greek and Roman authors testify to the practices of Jews to fast on Shabbat. In an essay on this topic,1 Yitzhak D. Gilat cites Strabo (Greek, 1st c. CE), Petronius (Roman, 1st c. CE) and others as affirming that fasting on Shabbat was a widespread and common Jewish practice. He spells out the larger theory behind this practice, and how it competed with other approaches to Shabbat: “These Gentile authors were familiar with Jewish circles that sanctified and purified themselves for the Sabbath day, either fasting on it or limiting their eating and drinking. Instead, they busied themselves with learning and worship from morning until night…[Their testimonies] reflect an essential reality in certain Jewish circles: the picture of a spiritual Shabbat, a Shabbat entirely dedicated to God… [This conception] saw Shabbat as a day entirely consecrated to God, a day dedicated to repentance to spiritual work, to Torah study and to intensive prayer, to religious introspection and lofty spirituality. This path was characterized by minimizing pleasure and eating, with asceticism and even fasting.” (Gilat, 9) All of these ‫-זכור‬influenced materials show us how an extreme version of this paradigm can lead to a profound absence of relaxation and enjoyment, even to a profound lack of freedom on Shabbat. The ‫ שמור‬approach feels largely drowned out in these sources, which focus almost exclusively on imitating the God who ceased creation on the seventh day and desperately trying to connect to the profound sense of proximity to the divine that is uniquely possible on Shabbat. 1 1-11 :)‫י.ד. גילת, "תענית בשבת", תרביץ נב (תשמג‬ www.mechonhadar.org 31
And every man who does any work thereon, or goes a journey, or tills  his  farm, whether in his house or any other place, ...
‫—שמור‬Preserving human freedom and social justice By contrast, other Jews read the Torah very differently, privileging the ‫ שמור‬voice almost exclusively. This approach draws support from prophetic and later soruces on Shabbat that seem nearly entirely focused on the economic dimension of Shabbat. For these sources, Shabbat is designed to prevent oppression. Failure to observe it will have dire social consequences. Amos 8:5 excoriates those who wait for the end of Shabbat to cheat the poor, indicating the critical role Shabbat plays in at least the temporary cessation of economic oppression. Isaiah 58:13 describes the essence of Shabbat as being about refraining from one’s normal affairs and making time for personal enjoyment. Nehemiah 10:32 and 13:15-21 describe, with great sorrow and anger, the violation of Shabbat through the conduct of regular commerce, placing a clear emphasis on the closing of businesses as essential for the sanctity of the day. This approach was seized upon by a number of Second Temple Jews, including those who became the eventual ancestors of Christianity. A number of passages from the Christian Bible, though they lie outside the Jewish canon, give us a good sense of some of the competing visions of Shabbat in the Jewish community at that time. As alternate interpretive paths not followed by later rabbis, these sources help us understand just what was at stake for our tradition in defining the essence of Shabbat and its practices. Let us look at two passages from the Christian Bible, in order to get a clear sense of what a robust ‫ שמור‬model would look like: Gospel of Mark 2:23-28, 3:1-6 One sabbath he was going through the grainfields; and as they made their way his disciples began to pluck heads of grain. And the Pharisees said to him, "Look, why are they doing what is not lawful on the sabbath?" And he said to them, "Have you never read what David did, when he was in need and was hungry, he and those who were with him: how he entered the house of God, when Abi'athar was high priest, and ate the bread of the Presence, which it is not lawful for any but the priests to eat, and also gave it to those who were with him?" And he said to them, "The sabbath was made for man, not man for the sabbath; so the Son of man is lord even of the sabbath." Again he entered the synagogue, and a man was there who had a withered hand. And they watched him, to see whether he would heal him on the sabbath, so that they might accuse him. And he said to the man who had the withered hand, "Come here." And he said to them, "Is it lawful on the sabbath to do good or to do harm, to save life or to kill?" But they were silent. And he looked around at them with anger, grieved at their hardness of heart, and said to the man, "Stretch out your hand." He stretched it out, and his hand was restored. The www.mechonhadar.org 32
                 Preserving human freedom and social justice By contrast, other Jews read the Torah very differently, priv...
Pharisees went out, and immediately held counsel with the Herodians against him, how to destroy him. Gospel of John 5:5-11, 16-17, 7:21-24 One man was there, who had been ill for thirty-eight years. When Jesus saw him and knew that he had been lying there a long time, he said to him, "Do you want to be healed?" The sick man answered him, "Sir, I have no man to put me into the pool when the water is troubled, and while I am going another steps down before me." Jesus said to him, "Rise, take up your pallet, and walk." And at once the man was healed, and he took up his pallet and walked. Now that day was the sabbath. So the Jews said to the man who was cured, "It is the sabbath, it is not lawful for you to carry your pallet."…And this was why the Jews persecuted Jesus, because he did this on the sabbath. But Jesus answered them, "My Father is working still, and I am working." …Jesus answered them, "I did one deed, and you all marvel at it. Moses gave you circumcision…and you circumcise a man upon the sabbath. If on the sabbath a man receives circumcision, so that the law of Moses may not be broken, are you angry with me because on the sabbath I made a man's whole body well? Do not judge by appearances, but judge with right judgment." The “Pharisees” in Mark and the “Jews” in John assume that a number of activities are forbidden on Shabbat, including plucking ears of grain, healing, and transporting objects in the public domain. These prohibitions are all found in rabbinic sources as well and are core elements of Shabbat observance as described in the earliest layers of the rabbinic tradition. It is perhaps tempting to read these Christian sources as nothing more and nothing less than an antinomian attack on Jewish traditions. But this would be incorrect. In fact, what we see here is a competing Jewish interpretation of the Bible and what it does and does not demand of us on Shabbat. We cannot fully understand the rabbinic rejection of this approach without understanding this Jewish-Christian source on its own terms. The close reader will note that Jesus, in these passages, makes internal arguments for the validity of his practice, appealing to Scripture throughout. In defending his tolerance of his disciples picking grain in Shabbat, Jesus first appeals to a case where David seems to have overridden a law in order to feed those with him who were very hungry. But he then makes a broader point about Shabbat itself: it is intended to serve human beings, not to make them miserable by their service to it. This is no antinomian claim; this is an argument about the essence of Shabbat, an argument grounded in the ‫ שמור‬model presented in Deuternonomy’s version of the Ten Commandments. If the purpose of Shabbat is to provide rest to the weary and to free the oppressed, Jesus seems to have reasoned: what possible good could come of making people go hungry on account of Shabbat restrictions? He would likely have considered the plowing and reaping of a full field to be a violation of the Torah’s ban on ‫ ,מלאכה‬or work. But the isolated picking of grain to satisfy temporary hunger, he would have argued, ought not to be www.mechonhadar.org 33
Pharisees went out, and immediately held counsel with the Herodians against him, how to destroy him. Gospel of John 5 5-11...
classified as forbidden in the first place. And Jesus seems to be conscious of another way of reading the Bible, one that he rejects and one that would claim that “man was made for the Sabbath.” Indeed, the ‫ זכור‬model presents Shabbat as prior to human history, with Jews being called to fit themselves into its paradigm of sanctity. Jesus channels the ‫ שמור‬model exclusively here, allowing for dramatic physical manipulation of the world—plucking grain from its source—in order that his students not be uncomfortable. Both the passages in Mark and John detail how Jesus healed people on Shabbat. Healing is another area where the tension between ‫ זכור‬and ‫ שמור‬is particularly stark. There are few more blatant human interventions in the world than healing, which is an explicit attempt to reverse the natural course of events. A ‫ זכור‬conception would be starkly opposed to this sort of involvement in God’s world, seeing such action as an inappropriate human arrogation of authority on God’s day. By contrast, a ‫ שמור‬conception focused on freedom and pleasure would see healing on Shabbat as innocuous, perhaps even mandatory in order to relieve human suffering. Indeed, Jesus offers two internal claims for the validity of his actions. First, as if to counter the ‫זכור‬ paradigm explicitly, he states that God continues to work on Shabbat, thus justifying ongoing work by humans. The claim seems to be: if the world is completely at rest, then why do people’s illnesses continue to progress on Shabbat and why do they continue to suffer? For that matter, why does nature continue to operate—often in dynamic ways—on Shabbat? Surely, he argued, this suggests that we are not mean to cease and desist from all activity, especially those activities that could alleviate suffering and more robustly fulfill Shabbat’s purpose of freeing us from all forms of slavery. Second, he appeals to circumcision, which all Jews agreed supersedes the Sabbath. If this sort of dramatic physical activity is permitted on Shabbat, on account of its being a positive intervention on behalf of the human body, why would we not apply this paradigm to all kinds of physically creative activities that can advance bodily enjoyment and integrity? In John, Jesus concludes his speech with an appeal to “right judgment,” a kind of common sense standard as to what is best for the welfare of the human being. This is in fact a perfectly coherent reading of the Bible, albeit one that interprets the ‫ זכור‬material entirely in light of the ‫ שמור‬model. The mirror image of the sources we saw earlier, these Christian passages show us another extreme in Second Temple times, one that valued human freedom and Deuteronomy’s call for social justice above all else. The Rabbinic Shabbat: Rejecting the Extremes and Listening to the Entire Torah The rabbinic approach to the tension between ‫ זכור‬and ‫ שמור‬is to embrace it. The Mekhilta we began with acknowledges the warring visions of Shabbat that can be inspired by Creation, on the one hand, and Exodus, on the other. We often rest and enjoy a feeling of freedom by dominating the physical world, whereas our pursuit of God and subordinating ourselves to creation can be not only difficult, but even painful at times. But the Mekhilta and www.mechonhadar.org 34
classified as forbidden in the first place. And Jesus seems to be conscious of another way of reading the Bible, one that ...
the rest of rabbinic tradition insist on an unshakeable commitment to the coexistence of ‫ זכור‬and ‫ ,שמור‬both of which were uttered, at once, by the same Living God. A number of aspects of the rabbinic Shabbat can only be fully understood through the lens of this attempted synthesis. Pleasure and its Limits Following the ‫ שמור‬model, many of our songs and prayers emphasize the centrality of rest and joy on this day. Whether it be the Shabbat table song ‫“/מנוחה ושמחה‬Rest and Joy” or the liturgical phrase ‫“/ישמחו במלכותך שומרי שבת‬May those who observe Shabbat rejoice in your kingdom”, the aspect of Shabbat as a day of enjoyment shines through rabbinic prayer and song. The principle of ‫ ,עונג שבת‬the pursuit of various kinds of pleasures on Shabbat, is central in rabbinic thinking and has real legal consequences. There are a number of examples of restrictions that are lifted in the name of ‫ .עונג‬Talmud Bavli Shabbat 113a records a series of traditions forbidding running on Shabbat, and yet, R. Yitzhak of Corbeil (France, 13th c.) rules: ‫ספר מצוות קטן מצוה רפא‬ ‫ונראה לי כי בחורים המתענגים בריצתם ובקפיצתם מותר, שאינם רוצים להרויח, וכן לראות כל דבר‬ ‫שמתענגים בו לראותו‬ Sefer Mitzvot Katan #281 It seems to me that young men who get ‫/עונג‬pleasure from running and jumping are allowed to do so, since they are not doing it out of motive for profit. Similarly, [it is permissible] to watch anything that one gets ‫/עונג‬pleasure from watching. As an extension of this point, R. Yisrael Isserlein (Germany, 15th c.) ruled that the normal ban on frivolous and excessive speech on Shabbat2 can be overridden in the name of ‫/עונג‬pleasure. He therefore justified the practice of gathering on Shabbat to listen to secular accounts of battles and royal adventures, which was a popular pastime in the middle ages: ‫תרומת הדשן סימן סא‬ ‫...דאסור להרבות דברים כמו בחול, וכש"כ יותר מבחול. אמנם אם אותם בני אדם מתענגים בכך, כשמדברים‬ ‫ומספרים שמועות מהמלכים ושרים ומלחמותיהם וכה"ג, כדרך הרבה בני אדם שמתאוים לכך, נראה דודאי‬ ‫שרי. דכה"ג כ' בסמ"ק דבחורים המתענגים במרוצתם ובקפיצותם, מותר; וכן לראות כל דבר שמתענגים בו‬ ‫לראות ע"כ. הא חזינן דאע"ג דדרשו חכמים וכבדתו מעשות דרכיך, שלא יהא הלוכך של שבת כהלוכך של‬ ....‫חול, פי' שלא ירוץ ויקפוץ, ואעפ"כ אם עושה להתענג ולאות נפשו שרי‬ Terumat Hadeshen #61 …It is forbidden to speak as excessively as one does during the week, all the more so to do so more than one does during the week. Nonetheless, if people enjoy speaking and 2 See Talmud Yerushalmi Shabbat 15:3 and Talmud Bavli Shabbat 113a. www.mechonhadar.org 35
the rest of rabbinic tradition insist on an unshakeable commitment to the coexistence of                and     ,         ...
telling tales about kings and princes and their wars—as many people love to do—it seems it is certainly permissible. For [R. Yitzhak of Corbeil] wrote similarly that “young men who get pleasure from running and jumping are allowed to do so…similarly, [it is permissible] to watch anything that one gets pleasure from watching.” We see from here that even though the Sages derived from verses…that one should not run and jump, it is nonetheless permissible to do so if one does it for pleasure and fulfillment of desire. Perhaps more dramatically, rabbinic law strongly embraces the notion that people should not have to die for Shabbat observance. In a passage eerily reminiscent of the passage from Mark we saw above, one Sage argues for desecrating Shabbat in order to save life as follows: ‫מכילתא דרבי ישמעאל כי תשא - מסכתא דשבתא פרשה א‬ .‫ושמרתם את השבת. זה הוא שהיה ר' שמעון בן מנסיא אומר, לכם שבת מסורה, ואי אתם מסורין לשבת‬ Mekhilta of R. Yishmael Ki Tisa, Massekhta Deshabbata Parashah 1 “You shall keep the Shabbat.” This refers to what R. Shimon b. Menasia used to say: Shabbat is in your custody, whereas you are not in the custody of Shabbat. R. Shimon b. Menasia’s point is clear, and emerges from the ‫ שמור‬perspective: If Shabbat is triggered by our memory of slavery and is intended to save human beings from suffering and oppression, it cannot be that they are commanded to die rather than violate it. A ‫ זכור‬perspective of ultimate submission to creation might well lead to the sort of approach we saw in the Dead Sea documents. By contrast, rabbinic tradition rejects this and hears the ‫ שמור‬voice of the Torah loud and clear, setting clear limits on Shabbat’s ability to control us and our lives.3 And yet, there is a dialectical insistence that the Torah’s ‫ זכור‬perspective is equally critical in observing this commandment of sanctifying Shabbat. ‫ עונג‬is never significant enough of a factor in rabbinic law to knock out a core Shabbat violation; only more peripheral, rabbinic restrictions can be so displaced. Rabbinic sources take for granted that Shabbat observance will sometimes be unpleasant and inconvenient and would unanimously treat Jesus’s permission to pick grain for mere hunger to be heretical. Though man’s life was not meant to be laid down for the Sabbath, man was indeed made to be subordinate one day a week to the creation that preceded him. This perspective flows from the perspective of ‫ זכור‬and its vision of a Shabbat that does not serve humans but makes them reach—sometimes in ways that deny pleasure— towards the Creator of heaven and earth. Gilat, in his essay, fills out the picture on fasting on Shabbat with a fantastic example of rabbinic ambivalence that perfectly encapsulates the tension between the ‫ זכור‬and ‫שמור‬ paradigms in this realm. He cites a fundamental debate preserved in the Yerushalmi about the essence of the day: 3 For more on the relationship between early Christian and rabbinic views on the suspension of Shabbat to save lives, see 481-505 :)‫.א. שמש, "פיקוח נפש ודברים אחרים שדוחים את השבת" תרביץ פ (תשעב‬ www.mechonhadar.org 36
telling tales about kings and princes and their wars   as many people love to do   it seems it is certainly permissible. F...
‫ירושלמי שבת טו:ג‬ ‫ר' חגיי בשם ר' שמואל בר נחמן לא ניתנו ימים טובים ושבתות אלא לאכילה ולשתייה ועל ידי שהפה הזה‬ ‫טריח התירו לו לעסוק בהן בדברי תורה. ר' ברכיה בשם ר' חייה בר בא לא ניתנו ימים טובים ושבתות אלא‬ ‫לעסוק בדיברי תורה. בחול על ידי שהוא טורח ואין לו פניי לעסוק בדיברי תורה ניתנו לו ימים טובים ושבתות‬ .‫לעסוק בהן בדיברי תורה‬ 4 Talmud Yerushalmi Shabbat 15:3 R. Haggai in the name of R. Shmuel b. Nahman: Yom Tov and Shabbat were given solely for the purpose of eating and drinking. Only because the mouth would find it cumbersome [not to speak] did they allow a person to study Torah on those days. R. Berekhiah in the name of R. Hiyya b. Ba: Yom Tov and Shabbat were given solely for the purpose of Torah study. During the week, a person is busy and has no free time to study Torah, therefore Yom Tov and Shabbat were given to study Torah. This debate sums up the tension we have seen so far: Is Shabbat a day to run away from slavery and towards the physical pleasures of life or is it a day to run towards God and the life of the spirit, even if that carries one away from various enjoyable activities? Gilat carefully analyzes Talmud Bavli Berakhot 31b and shows that R. Yose b. Zimra pronounced that those who fast on Shabbat annul a lifetime of evil decrees, seemingly praising this practice. A later sage, R. Nahman b. Yitzhak was uncomfortable with this ruling and added: “But such a person is punished for neglecting pursuing the pleasure of Shabbat (‫ ”.)עונג שבת‬And yet, Gilat also points us to Pesahim 68b, where we are told that Mar, son of Ravina, used to fast “every day of the year except for Shavuot, Purim and the day before Yom Kippur.” The presence of Shavuot in this list of exceptions suggests that he fasted on the other festivals, and on Shabbat as well, presumably only eating on the evenings of those days. Fasting is eventually understood to be generally forbidden on Shabbat in rabbinic law, except in extreme situations.5 And even so, not all Jewish communities abandoned the practice entirely, particularly on the Shabbat between Rosh Hashanah and Yom Kippur.6 This uneven legacy captures the split personality of Shabbat in the Torah itself, a day at once for pleasure and for imitating and drawing near to God, a split preserved and not fully resolved in rabbinic sources, culture and practice. Healing and Muktzeh: Hands off the world, within limits Many Jews are familiar with the principle that Shabbat is superseded by the imperative to preserve life and yet surprised to find that healing, more broadly, is forbidden. Indeed, under a ‫ שמור‬paradigm alone, alleviating human pain would seem to be obviously permitted in the 4 The text here is based on a genizah fragment published by Y.N. Epstein in Tarbiz 3 and cited by Gilat in his article. The text in our printed editions of the Yerushalmi has a number of minor variants and corrections, some of which confuse the original meaning. 5 See Shulhan Arukh OH 248:1. 6 See Gilat, 13-15. www.mechonhadar.org 37
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context of a day that celebrates and enshrines our release from slavery. Nonetheless, the prohibition on healing—which we saw referenced in various Christian sources above—remains black letter law in the rabbinic tradition: ‫שולחן ערוך אורח חיים שכח:א‬ ...‫מי שיש לו מיחוש בעלמא והוא מתחזק והולך כבריא אסור לעשות לו שום רפואה‬ Shulhan Arukh Orah Hayyim 328:1 It is forbidden to do any act of healing for someone who is merely in pain but who is otherwise walking around like a healthy person… Even someone who is sick to the point of being bedridden but is in no danger of dying does not trigger a full-scale override of Shabbat prohibitions. Rabbinic restrictions can be lifted in certain circumstances, and the help of Gentiles can be enlisted, but Jews may not perform biblical ‫ מלאכה‬for such a person.7 If the influence of the ‫ שמור‬paradigm is responsible for the desecration of Shabbat to save lives, then the ‫ זכור‬paradigm is a powerful counterpoint, demanding that when life is not on the line, we humbly accept the natural state of affairs for the 25 hours of Shabbat. Healing is one of the ultimate acts of human intervention and Shabbat is a time when humans, like God, step back from intervening. The complex web of laws surrounding human well-being on Shabbat is yet another example of holding the conflicting paradigms of ‫ שמור‬and ‫ זכור‬together. Similarly, a ‫-שמור‬influenced observer will like find the rabbinic laws of Shabbat extreme in the context of ‫ ,מוקצה‬the restrictions surrounding handling objects and tools on Shabbat. If Shabbat is essentially about forbidding the hard labor of slavery, then why would we forbid moving objects and tools even if no work is being done with them? Indeed, various formulations of ‫ מוקצה‬that try to anchor these laws in concern for physical labor can seem forced.8 Instead, ‫ מוקצה‬is best understood as descending from earlier Shabbat practices—like those reflected in the Dead Sea text we saw above—that were object allergic, demanding a withdrawal from most forms of physical contact with the world. Rocks and other raw, natural objects may not be moved on Shabbat, and the earliest rabbinic sources forbid moving tools of any sort except in the context of eating. This sort of withdrawal certainly often makes life less pleasant and convenient, but it dramatically honors Shabbat as a day when we recoil from creation, spurning any manipulation of the natural worlds and any contact with the main means through which we dominate it. Nonetheless, over time, many of the restrictions around the handling of objects were weakened, as the following passage makes clear: 7 See SA OH 328:17 and commentaries for the various views. This seems to have been the primary motivation of Rambam in Hilkhot Shabbat 24:12-13 as he attempts to come up with a theory of ‫ מוקצה‬that is largely detached from direct concerns of doing ‫ .מלאכה‬See Ra’avad’s attack on him there as well. 8 www.mechonhadar.org 38
context of a day that celebrates and enshrines our release from slavery. Nonetheless, the prohibition on healing   which w...
‫תוספתא שבת יד הלכה א‬ ‫בראשונה היו אומ' שלשה כלים ניטלין בשבת מקצוע של דבילה וזומא לסטרון של קדירה וסכין קטנה שעל‬ ‫גבי שלחן. חזרו להיות מוסיפין והולכין עד שאמרו כל הכלים ניטלין בשבת חוץ מן המסר הגדול ויתד של‬ .‫מחרישה‬ Tosefta Shabbat 14:1 At first, they used to say that only three tools could be moved on Shabbat: a knife to chop pressed dates, a soup ladle and a small table knife. They added more and more to this list until they said, “All tools may be moved on Shabbat, except for the large saw (used to cut wood) and the pin of the plow.” As we saw above, one approach preserved in the Dead Sea Scrolls objected to using a tool to lift a person out of a pit, perhaps even if his life was in danger. Not only do rabbinic sources reject that practice, but they eventually permit using even the most objectionable sorts of tools, as long as they were used for acceptable purposes: ‫משנה שבת יז:א-ד‬ ‫כל הכלים ניטלין בשבת...נוטל אדם קורנס לפצע בו את האגוזים וקורדום לחתוך את הדבלה מגירה לגרור בה‬ ‫את הגבינה מגריפה לגרוף בה את הגרוגרות את הרחת ואת המזלג לתת עליו לקטן את הכוש ואת הכרכר‬ ...‫לתחוב בו מחט של יד ליטול בו את הקוץ ושל סקאים לפתוח בו את הדלת‬ Mishnah Shabbat 17:1-4 All tools may be moved on Shabbat…One may take a hammer to crush nuts, a hatchet to cut dates, a saw to grate cheese, a rake to gather up figs, a winnowing shovel or a pitchfork to give food to a child, a spindle or a shuttle to pierce something, a sewing needle to remove a splinter, or a sackmaker’s needle to open a door… This transition reflects a broader shift in rabbinic sources on Shabbat towards the primacy of actions and intentions, away from a focus on objects. Eventually, ‫ מוקצה‬restrictions are often treated as mere rabbinic “fences around the law” that can be waived in the case of illness and other pressing circumstances.9 But when we understand these laws as derivative—and eventually highly vestigial—details of an even more robust ‫ זכור‬model, they are important guardians of a humble posture towards creation and human creativity on Shabbat. Is ‫ מלאכה‬best defined as “work”? We can perhaps best see the synthetic approach of rabbinic sources by paying attention to how they define ‫ .מלאכה‬As we have seen, taking the ‫ זכור‬paradigm seriously greatly expands our conception of ‫ מלאכה‬and what is forbidden on Shabbat. Almost anything that is physically transformative and creative is forbidden, irrespective of how physically taxing or economically 9 See Mishnah Berurah 328:58 for one example. www.mechonhadar.org 39
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significant it may be. In other words, even those actions that don’t evoke slavery—such as picking an individual fruit off a tree, or lighting a candle—still trample on the notion of the world as complete and created. Nonetheless, the ‫ שמור‬model that is focused on work, real work, defines the entire substructure of the rabbinic laws of Shabbat. By the time of the Mishnah’s redaction, the prohibition on ‫מלאכה‬ was understood to be represented by 39 categories, as laid out in the following famous Mishnah: ‫משנה שבת ז:ב‬ :‫אבות מלאכות ארבעים חסר אחת‬ ‫הזורע והחורש והקוצר והמעמר הדש והזורה הבורר הטוחן והמרקד והלש והאופה‬ ‫הגוזז את הצמר המלבנו והמנפצו והצובעו והטווה והמיסך והעושה שתי בתי נירין והאורג שני חוטין והפוצע‬ ‫ב' חוטין הקושר והמתיר והתופר שתי תפירות הקורע ע"מ לתפור שתי תפירות‬ ‫הצד צבי השוחטו והמפשיטו המולחו והמעבד את עורו והמוחקו והמחתכו הכותב שתי אותיות והמוחק על מנת‬ ‫לכתוב שתי אותיות‬ ‫הבונה והסותר‬ ‫המכבה והמבעיר‬ ‫המכה בפטיש‬ ‫המוציא מרשות לרשות‬ :‫הרי אלו אבות מלאכות ארבעים חסר אחת‬ Mishnah Shabbat 7:2 There are 39 categories of melakhah: Planting, plowing, harvesting, binding into sheaves, threshing, winnowing, sorting, grinding, sifting, kneading, baking. Shearing wool, bleaching, combing, dyeing, spinning, warping, making two spindle-trees, weaving two threads, separating two threads, tying a knot, untying a knot, sewing two stitches, tearing in order to sew two stitches. Hunting deer, slaughtering, skinning, salting, preparing the hide, scraping the hair off, cutting it, writing two letters, erasing in order to write two letters. Building and demolishing. Kindling and extinguishing. Hammering. Transferring from one place into another. These are the 39 categories of melakhah. At first blush, moderns may think of this as a very technical list, derived from all sorts of scriptural readings. In fact, it is essentially the to-do list of a person living in antiquity, focused on the activities of baking, making clothing, writing, construction, the use of fire and commerce (which requires the moving of goods from one place to another). That context is made clear by the following text, where Ben Zoma marvels at the consumer economy made possible through division of labor: www.mechonhadar.org 40
significant it may be. In other words, even those actions that don   t evoke slavery   such as picking an individual fruit...
‫תוספתא ברכות ו:ב‬ ‫בן זומא כשראה אוכלסין בהר הבית אומר ברוך מי שברא את אלו לשמשני כמה יגע אדם הראשון ולא טעם‬ ‫לוגמה אחת עד שזרע וחרש וקצר ועמר ודש וזרה וברר וטחן והרקיד ולש ואפה ואחר כך אכל ואני עומד‬ ‫בשחרית ומוצא אני את כל אילו לפני כמה יגע אדם הראשון ולא לבש חלוק עד שגזז ולבן ונפס וצבע וטווה‬ ‫וארג ואחר כך לבש ואני עומד בשחרית ומוצא את כל אילו לפני כמה אומניות שוקדות ומשכימות ואני עומד‬ ‫בשחרית ומוצא כל אילו לפני‬ Tosefta Berakhot 6:2 When Ben Zoma used to see masses of people on the Temple Mount, he used to say, “Blessed is the One who created these in order to serve me! Consider how hard the first human being had to work before even tasting a mouthful of food: planting, plowing, harvesting, binding into sheaves, threshing, winnowing, sorting, grinding, sifting, kneading and baking and only then eating. Whereas I get up in the morning and find everything ready! Consider how hard the first human being had to work before wearing a piece of clothing: shearing, bleaching, dyeing, spinning and weaving and only then wearing it. Whereas I get up in the morning and find everything ready! How many artisans must diligently get up early whereas I get up in the morning and find everything ready! The list here is not religiously motivated, nor does it have to do with Shabbat. It is simply an enumeration of the daily tasks that those involved in the crafts of baking and clothing production must do. As such, they represent “work” and human toil in the ancient world. Placing these categories at the heart of the definition of Shabbat is a ‫-שמור‬influenced move, ensuring that the desire to be humble before creation does not entirely obscure the need to avoid creating another Egypt through our economy. That has lenient ramifications—many of the core definitions of ‫ מלאכה‬are defined by whether something of human use as been accomplished10—as well as stringent ones: even activities that may not be in this list of 39 labors are often forbidden by later authorities when they seem too much like what is commonly experienced as “work”. Indeed, even hundreds of years later, a remarkable little piece of halakhah demonstrates that the common sense distinction between the labors that are “true work” and those that are technically designated as ‫ מלאכה‬was not lost: ‫רבינו ירוחם - תולדות אדם וחוה נתיב יב חלק כ דף קב טור ד‬ ‫לעשות מלאכה כבר כתבתי למעלה דאסור עד שיאמר סדר תפלה...וכל זה מיירי במלאכה כגון אורג או כותב‬ .‫כיוצא בו אבל להדליק נר או להוציא מרשות לרשות אינו צריך כל זה‬ 10 See Mishnah Shabbat chapters 7-13 for many examples of this. www.mechonhadar.org 41
                                                                                                                          ...
Toledot Adam Vehava 12:20, 102d, R. Yeroham, Spain, 14th c. I already wrote above that one may not perform any melakhah until one has prayed [Arvit at the end of Shabbat, with the passage about havdalah]…but this only applies to melakhah like weaving or writing or other similar tasks, as opposed to lighting fires or transferring things from one domain to another [which one may do as soon as it is dark, even if one has not yet said havdalah]. The meaning of R. Yeroham here is plain: certain physical actions are classified as melakhah because of their physical and transformational significance, as in the case of lighting a candle or moving an object from inside one’s house to outside of it. These are, if you will, ‫זכור‬inspired restrictions, posing no threat to social and economic health but constituting meaningful interventions into the created world. By contrast, weaving and writing are classified as melakhah of a different sort, one that can properly be called “work”, in keeping with the ‫ שמור‬paradigm. Though both are equally forbidden on Shabbat, R. Yeroham argues that only performing the latter category requires a verbal declaration of Shabbat’s end. In this small detail, then, the distinction between the ‫ זכור‬and ‫ שמור‬definitions of melakhah is preserved. While later halakhic authorities rejected this practical ruling, R. Yeroham’s insight is testimony to the ongoing echoes of the ancient tension in the nature of Shabbat itself. Shabbat: A day that unites? This framework of ‫ שמור‬and ‫ זכור‬not only unpacks the meaning of the first line of ‫.לכה דודי‬ It can perhaps also help contemporary Jews be united by Shabbat rather than divided by it. I recall once seeing a young boy, raised in an observant home, talking with his grandmother, who did not really observe Shabbat, on a Saturday afternoon. It was a nice warm day, and the grandmother asked her grandson if he would go outside and pick a grapefruit off the tree in the back yard so she could serve it as a snack. The boy responded sheepishly that it was Shabbat and he could not pick the fruit off the tree. She responded with a puzzled look and a dismissive tone: “But that’s not work!” The boy simply shrugged and they moved on to other things. Viewed through the ‫ שמור‬and ‫ זכור‬paradigms, we might view this exchange differently. The grandmother was essentially instinctively deploying a ‫-שמור‬model understanding of ‫.מלאכה‬ Though not observant herself, she clearly had an intuitive respect for a Shabbat observance grounded in the command to remember the Exodus. Refrain from “work”, in the sense of economic enslavement and participation in the office culture, were transparent concepts to her. More opaque to her—and to the grandson who had no tools or vocabulary to explain it—were the restrictions around picking a single fruit off of a tree for pleasure and enjoyment. Indeed, the ‫ שמור‬paradigm would seem to allow for, if not recommend, such an action in the name of ‫עונג‬ ‫ !שבת‬What she needed to hear was a response that evoked the ‫ זכור‬model as another defining factor of traditional Shabbat observance. True, nothing of the mythic fabric of the Exodusinspired command would have been torn by the picking of that grapefruit. But the act would have been a profound rupture in the spiritual practice of imitating the God who stopped creating www.mechonhadar.org 42
Toledot Adam Vehava 12 20, 102d, R. Yeroham, Spain, 14th c. I already wrote above that one may not perform any melakhah un...
on the seventh day. It would have been an act of ‫ ,מלאכה‬not in the sense of “work” as defined in our contemporary culture, but in the sense of manipulating creation in significant physical ways. I suspect this sort of vocabulary would have helped the boy feel better about himself in that moment and would perhaps have engendered respect from his grandmother’s end as well. In any event, we should acknowledge that the tension in these types of interactions is nothing more than the channeling of an ancient balancing act intended to capture the Torah’s multivocality around Shabbat. That would go a long way to increasing both commitment and understanding. This is true for so many Shabbat observances that seem extreme or inappropriate when viewed through the lens of one of these frames alone, but that come into sharp focus when viewed through the other. When a couple with a small child carries a baby stroller up 12 flights of steps, it is hard to see how they are properly honoring Shabbat as a day of rest. Yet refraining from the active use of electric technology to control our environment on Shabbat is one of the most powerful demonstrations of standing humbly before creation, even if those restraints sometimes make you break a sweat. As our world becomes more electrified, we will need to keep both the ‫ שמור‬and ‫ זכור‬paradigms clearly in front of us as we attempt to make wise decisions around the application of halakhah to our lives. Actions that may seem minor—the flipping of a switch, the release of stored electrons—may or may not threaten our spiritual goal of keeping Egypt at bay, but may run roughshod over our attempt to have humanity step back from its domination of the world once every seven days. In the context of the modern state of Israel, what may be good for religious pluralism and may seem minor from the perspective of leaving creation alone—such as the opening of malls on Shabbat—may be the grossest violation of the Torah’s dream of a society at rest, especially its most economically vulnerable. And when we fail to make any distinction between things that are truly “work” and those that are truly not, we can end up with unwarranted stringencies, as in the context of serious physical need and vulnerability. Highlighting the Torah’s own dual program of Shabbat—imitating God through restraint and translating the experience of Egypt into a commitment to a day of social rest—can go a long way to building bridges and opening minds. When we recite ‫ לכה דודי‬on Friday nights, we should redouble our commitment to listening to the entire Torah. Unlike various groups in Second Temple Judaism, Hazal, our Sages of blessed memory, refused to allow one of the Torah’s messages about Shabbat to trample the other. May our conversations about Shabbat always to preserve this ethic of ‫ ,בדבור אחד נאמרו‬gleaning wisdom from the competing models of ‫ זכור‬and ‫ ,שמור‬as well as from the symphony of voices that make up this ever relevant area of halakhah. www.mechonhadar.org 43
on the seventh day. It would have been an act of     ,             not in the sense of    work    as defined in our contem...
Sources for “The Rabbinic Shabbat: Shamor and Zakhor in Stereo” Rabbi Ethan Tucker, Mechon Hadar “Shamor and Zakhor were said at once” ‫מכילתא דרבי ישמעאל יתרו - מסכתא דבחדש פרשה ז‬ .‫"זכור" ו"שמור", שניהם נאמרו בדיבור אחד‬ .‫"מחלליה מות יומת" ו"ביום השבת שני כבשים", שניהם בדיבור אחד נאמרו‬ .‫"ערות אשת אחיך" ו"יבמה יבא עליה", שניהם נאמרו בדיבור אחד‬ .‫"לא תלבש שעטנז" ו"גדילים תעשה לך" שניהם נאמרו בדיבור אחד‬ ":'‫מה שאי איפשר לאדם לומר כן, שנאמר "אחת דבר אלהים שתים זו שמענו", ואומר "הלא כה דברי כאש נאם ה‬ Mekhilta of R. Yishmael, Yitro, Bahodesh #7 “Be mindful of” and “Guard”, both were said at once. “Those who desecrate it shall be put to death” and “On the Shabbat day, sacrifice two lambs”, both were said at once. “Do not be intimate with your brother’s wife” and “her levir shall be intimate with her”, both were said at once. “Do not wear a mixture of wool and linen” and “Place tassels on your garment”, both were said at once. A human being could not have said these things, as it says, “God spoke one thing and we heard two,” and it says, “Is not my word like fire? Says God.” I. Why do we observe Shabbat? ‫דברים ה:יא-יד‬ ‫שמור את יום השבת לקדשו כאשר צוך יקוק אלקיך: ששת ימים תעבד ועשית כל מלאכתך: ויום השביעי שבת ליקוק‬ ‫אלקיך לא תעשה כל מלאכה אתה ובנך ובתך ועבדך ואמתך ושורך וחמרך וכל בהמתך וגרך אשר בשעריך למען ינוח‬ ‫עבדך ואמתך כמוך: וזכרת כי עבד היית בארץ מצרים ויצאך יקוק אלקיך משם ביד חזקה ובזרע נטויה על כן צוך‬ :‫יקוק אלקיך לעשות את יום השבת‬ Deuteronomy 5:11-14 Guard the sabbath day, to keep it holy, as the Lord your God commanded you. Six days shall you labor and do all your melakhah; but the seventh day is a sabbath for the Lord your God; do not do any manner of melakhah on it, not you, your son, your daughter, your male or female servant, your ox, your donkey, any of your animals nor the stranger within your gates; so that your male and female servants can rest just like you. And so that you will be mindful that you were a slave in the land of Egypt, and the Lord your God took you out of there with a mighty hand and an outstretched arm; therefore the Lord your God commanded you to perform the sabbath day. ‫שמות כג:יב‬ :‫ששת ימים תעשה מעשיך וביום השביעי תשבת למען ינוח שורך וחמרך וינפש בן אמתך והגר‬ www.mechonhadar.org 44
Sources for    The Rabbinic Shabbat  Shamor and Zakhor in Stereo    Rabbi Ethan Tucker, Mechon Hadar    Shamor and Zakhor ...
Exodus 23:12 Six days you shall do what you do, but on the seventh day you shall stop, so that your ox and your donkey may rest and so that your servant and the stranger may be refreshed. ‫שמות כ:ז-י‬ ‫זכור את יום השבת לקדשו: ששת ימים תעבד ועשית כל מלאכתך: ויום השביעי שבת ליקוק אלקיך לא תעשה כל‬ ‫מלאכה אתה ובנך ובתך עבדך ואמתך ובהמתך וגרך אשר בשעריך: כי ששת ימים עשה יקוק את השמים ואת הארץ‬ :‫את הים ואת כל אשר בם וינח ביום השביעי על כן ברך יקוק את יום השבת ויקדשהו‬ Exodus 20:7-10 Be mindful of the sabbath day, to keep it holy. Six days shall you labor and do all your melakhah; but the seventh day is a sabbath for the Lord your God; do not do any manner of melakhah on it, not you, your son, your daughter, your male or female servant, your animals nor the stranger within your gates; for in six days the Lord made the heaven, the earth, the sea, and all that is in them, and rested on the seventh day; therefore the Lord blessed the sabbath day and sanctified it. ‫בראשית ב:א-ג‬ ‫ויכלו השמים והארץ וכל צבאם: ויכל אלקים ביום השביעי מלאכתו אשר עשה וישבת ביום השביעי מכל מלאכתו אשר‬ :‫עשה: ויברך אלקים את יום השביעי ויקדש אתו כי בו שבת מכל מלאכתו אשר ברא אלקים לעשות‬ Genesis 2:1-3 The heaven and the earth and all their hosts were completed. On the seventh day, God completed the melakhah which He had done. God stopped on the seventh day from doing all the melakhah that He had done. God blessed the seventh day and sanctified it, for on it He stopped doing all the melakhah that God had created. II. What is the essence of Shabbat: Non-Rabbinic Extremes Josephus, Against Apion 1:161 "There are a people called Jews, and dwell in a city the strongest of all other cities, which the inhabitants call Jerusalem, and are accustomed to rest on every seventh day on which times they make no use of their arms, nor meddle with husbandry, nor take care of any affairs of life, but spread out their hands in their holy places, and pray till the evening.” Damascus Document XI, translation from G. Vermes, The Complete Dead Sea Scrolls in English, New York 1997 But should any man fall into water or (fire), let him not be pulled out with the aid of a ladder or rope or (some such) utensil. 4Q265 If a person falls into water on Shabbat, one should extend him his garment but not pick up any tool. www.mechonhadar.org 45
Exodus 23 12 Six days you shall do what you do, but on the seventh day you shall stop, so that your ox and your donkey may...
Jubilees 50, translation from R.H. Charles, The Apocrypha and Pseudepigrapha of the Old Testament, Oxford 1913 And behold the commandment regarding the Sabbaths -I have written (them) down for thee- and all the judgments of its laws. Six days shalt thou labour, but on the seventh day is the Sabbath of the Lord your God. In it ye shall do no manner of work, ye and your sons, and your menservants and your maid-servants, and all your cattle and the sojourner also who is with you. And the man that does any work on it shall die: whoever desecrates that day, whoever lies with (his) wife, or whoever says he will do something on it, that he will set out on a journey thereon in regard to any buying or selling: and whoever draws water thereon which he had not prepared for himself on the sixth day, and whoever takes up any burden to carry it out of his tent or out of his house shall die. Ye shall do no work whatever on the Sabbath day save what ye have prepared for yourselves on the sixth day, so as to eat, and drink, and rest, and keep Sabbath from all work on that day, and to bless the Lord your God, who has given you a day of festival and a holy day: and a day of the holy kingdom for all Israel is this day among their days for ever. For great is the honor which the Lord has given to Israel that they should eat and drink and be satisfied on this festival day, and rest thereon from all labor which belongs to the labor of the children of men save burning frankincense and bringing oblations and sacrifices before the Lord for days and for Sabbaths. This work alone shall be done on the Sabbath-days in the sanctuary of the Lord your God; that they may atone for Israel with sacrifice continually from day to day for a memorial well-pleasing before the Lord, and that He may receive them always from day to day according as thou hast been commanded. And every man who does any work thereon, or goes a journey, or tills (his) farm, whether in his house or any other place, and whoever lights a fire, or rides on any beast, or travels by ship on the sea, and whoever strikes or kills anything, or slaughters a beast or a bird, or whoever catches an animal or a bird or a fish, or whoever fasts or makes war on the Sabbaths: The man who does any of these things on the Sabbath shall die… Gospel of Mark 2:23-28, 3:1-6 One sabbath he was going through the grainfields; and as they made their way his disciples began to pluck heads of grain. And the Pharisees said to him, "Look, why are they doing what is not lawful on the sabbath?" And he said to them, "Have you never read what David did, when he was in need and was hungry, he and those who were with him: how he entered the house of God, when Abi'athar was high priest, and ate the bread of the Presence, which it is not lawful for any but the priests to eat, and also gave it to those who were with him?" And he said to them, "The sabbath was made for man, not man for the sabbath; so the Son of man is lord even of the sabbath." Again he entered the synagogue, and a man was there who had a withered hand. And they watched him, to see whether he would heal him on the sabbath, so that they might accuse him. And he said to the man who had the withered hand, "Come here." And he said to them, "Is it lawful on the sabbath to do good or to do harm, to save life or to kill?" But they were silent. And he looked around at them with anger, grieved at their hardness of heart, and said to the man, "Stretch out your hand." He stretched it out, and his hand was restored. The Pharisees went out, and immediately held counsel with the Herodians against him, how to destroy him. Gospel of John 5:5-11, 16-17, 7:21-24 One man was there, who had been ill for thirty-eight years. When Jesus saw him and knew that he had been lying there a long time, he said to him, "Do you want to be healed?" The sick man www.mechonhadar.org 46
Jubilees 50, translation from R.H. Charles, The Apocrypha and Pseudepigrapha of the Old Testament, Oxford 1913 And behold ...
answered him, "Sir, I have no man to put me into the pool when the water is troubled, and while I am going another steps down before me." Jesus said to him, "Rise, take up your pallet, and walk." And at once the man was healed, and he took up his pallet and walked. Now that day was the sabbath. So the Jews said to the man who was cured, "It is the sabbath, it is not lawful for you to carry your pallet."…And this was why the Jews persecuted Jesus, because he did this on the sabbath. But Jesus answered them, "My Father is working still, and I am working." …Jesus answered them, "I did one deed, and you all marvel at it. Moses gave you circumcision…and you circumcise a man upon the sabbath. If on the sabbath a man receives circumcision, so that the law of Moses may not be broken, are you angry with me because on the sabbath I made a man's whole body well? Do not judge by appearances, but judge with right judgment." III. What is the essence of Shabbat: Rabbinic Synthesis ‫ספר מצוות קטן מצוה רפא‬ ‫ונראה לי כי בחורים המתענגים בריצתם ובקפיצתם מותר, שאינם רוצים להרויח, וכן לראות כל דבר שמתענגים בו‬ ‫לראותו‬ Sefer Mitzvot Katan #281, R. Yitzhak of Corbeil, France, 13th c. It seems to me that young men who get ‫/עונג‬pleasure from running and jumping are allowed to do so, since they are not doing it out of motive for profit. Similarly, [it is permissible] to watch anything that one gets ‫/עונג‬pleasure from watching. ‫תרומת הדשן סימן סא‬ ‫...דאסור להרבות דברים כמו בחול, וכש"כ יותר מבחול. אמנם אם אותם בני אדם מתענגים בכך, כשמדברים ומספרים‬ '‫שמועות מהמלכים ושרים ומלחמותיהם וכה"ג, כדרך הרבה בני אדם שמתאוים לכך, נראה דודאי שרי. דכה"ג כ‬ ‫בסמ"ק דבחורים המתענגים במרוצתם ובקפיצותם, מותר; וכן לראות כל דבר שמתענגים בו לראות ע"כ. הא חזינן‬ ,‫דאע"ג דדרשו חכמים וכבדתו מעשות דרכיך, שלא יהא הלוכך של שבת כהלוכך של חול, פי' שלא ירוץ ויקפוץ‬ ....‫ואעפ"כ אם עושה להתענג ולאות נפשו שרי‬ Terumat Hadeshen #61, R. Yisrael Isserlein, Germany, 15th c. …It is forbidden to speak as excessively as one does during the week, all the more so to do so more than one does during the week. Nonetheless, if people enjoy speaking and telling tales about kings and princes and their wars—as many people love to do—it seems it is certainly permissible. For [R. Yitzhak of Corbeil] wrote similarly that “young men who get pleasure from running and jumping are allowed to do so…similarly, [it is permissible] to watch anything that one gets pleasure from watching.” We see from here that even though the Sages derived from verses…that one should not run and jump, it is nonetheless permissible to do so if one does it for pleasure and fulfillment of desire. ‫מכילתא דרבי ישמעאל כי תשא - מסכתא דשבתא פרשה א‬ .‫ושמרתם את השבת. זה הוא שהיה ר' שמעון בן מנסיא אומר, לכם שבת מסורה, ואי אתם מסורין לשבת‬ www.mechonhadar.org 47
answered him,  Sir, I have no man to put me into the pool when the water is troubled, and while I am going another steps d...
Mekhilta of R. Yishmael Ki Tisa, Massekhta Deshabbata Parashah 1 “You shall keep the Shabbat.” This refers to what R. Shimon b. Menasia used to say: Shabbat is in your custody, whereas you are not in the custody of Shabbat. ‫ירושלמי שבת טו:ג‬ ‫ר' חגיי בשם ר' שמואל בר נחמן לא ניתנו ימים טובים ושבתות אלא לאכילה ולשתייה ועל ידי שהפה הזה טריח התירו‬ .‫לו לעסוק בהן בדברי תורה. ר' ברכיה בשם ר' חייה בר בא לא ניתנו ימים טובים ושבתות אלא לעסוק בדיברי תורה‬ .‫בחול על ידי שהוא טורח ואין לו פניי לעסוק בדיברי תורה ניתנו לו ימים טובים ושבתות לעסוק בהן בדיברי תורה‬ Talmud Yerushalmi Shabbat 15:3 R. Haggai in the name of R. Shmuel b. Nahman: Yom Tov and Shabbat were given solely for the purpose of eating and drinking. Only because the mouth would find it cumbersome [not to speak] did they allow a person to study Torah on those days. R. Berekhiah in the name of R. Hiyya b. Ba: Yom Tov and Shabbat were given solely for the purpose of Torah study. During the week, a person is busy and has no free time to study Torah, therefore Yom Tov and Shabbat were given to study Torah. ‫שולחן ערוך אורח חיים שכח:א‬ ...‫מי שיש לו מיחוש בעלמא והוא מתחזק והולך כבריא אסור לעשות לו שום רפואה‬ Shulhan Arukh Orah Hayyim 328:1 It is forbidden to do any act of healing for someone who is merely in pain but who is otherwise walking around like a healthy person… ‫תוספתא שבת יד הלכה א‬ .‫בראשונה היו אומ' שלשה כלים ניטלין בשבת מקצוע של דבילה וזומא לסטרון של קדירה וסכין קטנה שעל גבי שלחן‬ .‫חזרו להיות מוסיפין והולכין עד שאמרו כל הכלים ניטלין בשבת חוץ מן המסר הגדול ויתד של מחרישה‬ Tosefta Shabbat 14:1 At first, they used to say that only three tools could be moved on Shabbat: a knife to chop pressed dates, a soup ladle and a small table knife. They added more and more to this list until they said, “All tools may be moved on Shabbat, except for the large saw (used to cut wood) and the pin of the plow.” ‫משנה שבת יז:א-ד‬ ‫כל הכלים ניטלין בשבת...נוטל אדם קורנס לפצע בו את האגוזים וקורדום לחתוך את הדבלה מגירה לגרור בה את‬ ‫הגבינה מגריפה לגרוף בה את הגרוגרות את הרחת ואת המזלג לתת עליו לקטן את הכוש ואת הכרכר לתחוב בו מחט‬ ...‫של יד ליטול בו את הקוץ ושל סקאים לפתוח בו את הדלת‬ Mishnah Shabbat 17:1-4 All tools may be moved on Shabbat…One may take a hammer to crush nuts, a hatchet to cut dates, a saw to grate cheese, a rake to gather up figs, a winnowing shovel or a pitchfork to give food to a child, a spindle or a shuttle to pierce something, a sewing needle to remove a splinter, or a sackmaker’s needle to open a door… www.mechonhadar.org 48
Mekhilta of R. Yishmael Ki Tisa, Massekhta Deshabbata Parashah 1    You shall keep the Shabbat.    This refers to what R. ...
‫משנה שבת ז:ב‬ :‫אבות מלאכות ארבעים חסר אחת‬ ‫הזורע והחורש והקוצר והמעמר הדש והזורה הבורר הטוחן והמרקד והלש והאופה‬ ‫הגוזז את הצמר המלבנו והמנפצו והצובעו והטווה והמיסך והעושה שתי בתי נירין והאורג שני חוטין והפוצע ב' חוטין‬ ‫הקושר והמתיר והתופר שתי תפירות הקורע ע"מ לתפור שתי תפירות‬ ‫הצד צבי השוחטו והמפשיטו המולחו והמעבד את עורו והמוחקו והמחתכו הכותב שתי אותיות והמוחק על מנת לכתוב‬ ‫שתי אותיות‬ ‫הבונה והסותר‬ ‫המכבה והמבעיר‬ ‫המכה בפטיש‬ ‫המוציא מרשות לרשות‬ :‫הרי אלו אבות מלאכות ארבעים חסר אחת‬ Mishnah Shabbat 7:2 There are 39 categories of melakhah: Planting, plowing, harvesting, binding into sheaves, threshing, winnowing, sorting, grinding, sifting, kneading, baking. Shearing wool, bleaching, combing, dyeing, spinning, warping, making two spindle-trees, weaving two threads, separating two threads, tying a knot, untying a knot, sewing two stitches, tearing in order to sew two stitches. Hunting deer, slaughtering, skinning, salting, preparing the hide, scraping the hair off, cutting it, writing two letters, erasing in order to write two letters. Building and demolishing. Kindling and extinguishing. Hammering. Transferring from one place into another. These are the 39 categories of melakhah. ‫תוספתא ברכות ו:ב‬ ‫בן זומא כשראה אוכלסין בהר הבית או' ברוך מי שברא את אלו לשמשני כמה יגע אדם הראשון ולא טעם לוגמה אחת‬ ‫עד שזר' וחרש וקצר ועמר ודש וזרה וברר וטחן והרקיד ולש ואפה ואחר כך אכל ואני עומד בשחרית ומוצא אני את כל‬ ‫אילו לפני כמה יגע אדם הראשון ולא לבש חלוק עד שגזז ולבן ונפס וצבע וטווה וארג ואחר כך לבש ואני עומד‬ ‫בשחרית ומוצא את כל אילו לפני כמה אומניות שוקדות ומשכימות ואני עומד בשחרית ומוצא כל אילו לפני‬ Tosefta Berakhot 6:2 When Ben Zoma used to see masses of people on the Temple Mount, he used to say, “Blessed is the One who created these in order to serve me! Consider how hard the first human being had to work before even tasting a mouthful of food: planting, plowing, harvesting, binding into sheaves, threshing, winnowing, sorting, grinding, sifting, kneading and baking and only then eating. Whereas I get up in the morning and find everything ready! Consider how hard the first human being had to work before wearing a piece of clothing: shearing, bleaching, dyeing, spinning and weaving and only then wearing it. Whereas I get up in the morning and find everything ready! How many artisans must diligently get up early whereas I get up in the morning and find everything. www.mechonhadar.org 49
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‫רבינו ירוחם - תולדות אדם וחוה נתיב יב חלק כ דף קב טור ד‬ ‫לעשות מלאכה כבר כתבתי למעלה דאסור עד שיאמר סדר תפלה...וכל זה מיירי במלאכה כגון אורג או כותב כיוצא בו‬ .‫אבל להדליק נר או להוציא מרשות לרשות אינו צריך כל זה‬ Toledot Adam Vehava 12:20, 102d, R. Yeroham, Spain, 14th c. I already wrote above that one may not perform any melakhah until one has prayed [Arvit at the end of Shabbat, with the passage about havdalah]…but this only applies to melakhah like weaving or writing or other similar tasks, as opposed to lighting fires or transferring things from one domain to another [which one may do as soon as it is dark, even if one has not yet said havdalah]. www.mechonhadar.org 50
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Thoughts on Standing at a Halakhic Frontier Rabbi Ethan Tucker, Center for Jewish Law and Values In the middle of the narrative of ‫ ,הר סיני‬Moshe is up on the mountain receiving instructions from God. But equally important is to remember that ‫ ,זקנים‬a host of other unnamed elders, have been left waiting behind at the base of the mountain. These figures are clearly separate from the rest of the people and enjoy some sort of authority, some key mediating role between Moshe and the rest of the people. Later in the Torah, a group of 70 such ‫ זקנים‬is instrumental in helping Moshe lead the people, and the question arises: Why do they remain anonymous? ‫תלמוד בבלי מסכת ראש השנה דף כה עמוד א-ב‬ ‫תנו רבנן: למה לא נתפרשו שמותם של זקנים הללו - שלא יאמר אדם: פלוני כמשה ואהרן? פלוני כנדב‬ ‫ואביהוא? פלוני כאלדד ומידד? ואומר +שמואל א יב+ ויאמר שמואל אל העם ה' אשר עשה את משה ואת‬ .‫אהרן, ואומר +שמואל א יב+ וישלח ה' את ירבעל ואת בדן ואת יפתח ואת שמואל‬ ,‫ירובעל זה גדעון, ולמה נקרא שמו ירובעל - שעשה מריבה עם הבעל‬ ,‫בדן זה שמשון, ולמה נקרא שמו בדן - דאתי מדן‬ .‫יפתח - כמשמעו‬ ‫ואומר +תהלים צט+ משה ואהרן בכהניו ושמואל בקראי שמו. שקל הכתוב שלשה קלי עולם כשלשה חמורי‬ .‫עולם, לומר לך: ירובעל בדורו - כמשה בדורו, בדן בדורו - כאהרן בדורו, יפתח בדורו - כשמואל בדורו‬ ‫ללמדך שאפילו קל שבקלין ונתמנה פרנס על הצבור - הרי הוא כאביר שבאבירים, ואומר +דברים יז+ ובאת‬ ‫אל הכהנים הלוים ואל השפט אשר יהיה בימים ההם. וכי תעלה על דעתך שאדם הולך אצל הדיין שלא היה‬ ‫בימיו? הא אין לך לילך אלא אצל שופט שבימיו, ואומר +קהלת ז+ אל תאמר מה היה שהימים הראשונים היו‬ .‫טובים מאלה‬ Talmud Bavli Rosh Hashanah 25a-b Our Sages taught: Why were the names of these elders not made explicit? To prevent someone from saying [to a later judge]: “Is so-and-so like Moshe and Aharon? Is so-andso like Nadav and Avihu? Is so-and-so like Eldad and Medad?” Furthermore, [we find that when Shmuel finally consents to the people’s request for a king] Scripture says: “Shmuel said to the people: ‘[In the name of] God who made Moshe and Aharon…God send Yeruba’al, Bedan, Yiftah and Shmuel.” Yeruba’al is Gideon—Why was he called Yeruba’al? Because he fought with Ba’al. Bedan is Shimshon—Why was he called Bedan? Because he came from Dan. Yiftah is who he sounds like he is. [The judge who was the son of a prostitute and delivered the people from Ammon.] And furthermore, Scripture says: “Moshe and Aharon are among God’s priests and Shmuel among those who call on God’s name.” Scripture [in Shmuel’s address to the people] equates three of the biggest lightweights [Gideon, Shimshon and Yiftah] with three of the most weighty personalities [Moshe, Aharon and Shmuel]. This is to tell you: Yeruba’al in his generation is like Moshe in his; Bedan in his generation is like Aharon in his; Yiftah in his generation is like Shmuel in his. This teaches you that once even the biggest lightweight has been appointed a community leader, he is to be treated like the loftiest leaders of all time. Furthermore, it says: “And you shall come to the priests, the Levites and to the judge that will be there in that time.” Would it ever occur to you that a person could go to a judge not in his own time? You must only consult a judge who lives in your own time www.mechonhadar.org 51
Thoughts on Standing at a Halakhic Frontier Rabbi Ethan Tucker, Center for Jewish Law and Values In the middle of the narr...
[irrespective of how he matches up to the virtues of earlier leaders]. And Scripture says: “Don’t say, ‘How has it happened that former times were better than these?’” This passage notes Shmuel’s startling equation of leaders with supremely exemplary character with those possessed of a much more checkered biography. How can Shmuel—equated by the Bible itself with Moshe and Aharon—be mentioned in the same breath as Yiftah—a rash, reckless leader who sacrificed his own daughter because he could not adequately control his speech? The conclusion: No generation can afford to dismiss its own leadership as inadequate, because the leaders of the past are simply not available to weigh in on the great challenges of the day. As much as nostalgia and a deep yearning for earlier times propels us to seek out judges from the past, we must learn to respect and seek out the judges who are in our midst. The first rule of standing at a halakhic frontier is thus that you have only yourself to rely on. To some extent, the map ends. You are entering the phase of the expedition that is uncharted. Those who have not walked where you walk have little to say to you. This is both scary and undeniably true. The anonymity of the ‫ זקנים‬is to remind us that as yet unnamed and unknown leaders will need to arise to confront as yet unnamed and unknown challenges. Perhaps one of the places we feel most alone as we turn to the past is in the context of how to structure committed relationships in the contemporary world. Thoroughgoing assumptions about heterosexuality, patriarchy and the rituals and prohibitions surrounding marriage define the texts of our masters from the past and make it difficult at times to fully conceive of the bridge between ourselves. It often feels that we are plunged into struggles that they could not even have conceived. We must recognize that those earlier texts will not construct those bridges for us. We will need to do that ourselves, with reverence for that past and with deference to those who are most learned and most creative. A second rule of standing at a halakhic frontier is to always think of how we can make what we do today seem eternal to those who come after us. In fact, R. Yehoshua b. Levi tells us that this is the very essence of what Torah is about. The origin of true Torah cannot ultimately be traced to an idiosyncratic moment in history. R. Yehoshua b. Levi comments on the following verse: ‫דברים ט:י‬ ‫וַיִ תֵּ ן יְ קוָק אֵּ לַי אֶ ת שנֵּי לּוחֹת הָ אֲבָ נים כְ תֻ בִ ים בְ אֶ צְ בַ ע אֹלהִ ים ועלֵּיהֶ ם ככָל הדבָ ִרים אֲשֶ ר דבֶ ר יְ קוָק עִ מָ כֶם בָ הָ ר‬ ֹ ִ ְ ֲ ֱ ִ ְ ֹ :‫מתֹוְך הָ אֵּ ש בְ יֹום הַ קָ הָ ל‬ ִ Devarim 9:10 But God gave to me the two tablets of stone, written on by the finger of God, and upon them, corresponding to all the words that God spoke with you on the mountain, from the midst of the fire, on the day of Assembly. R. Yehoshua b. Levi picks up on some of the extra conjunctions, prepositions and articles used in this verse that might have been omitted without loss of comprehension and plumbs them for meaning: www.mechonhadar.org 52
 irrespective of how he matches up to the virtues of earlier leaders . And Scripture says     Don   t say,    How has it h...
‫תלמוד ירושלמי (וילנא) מסכת פאה פרק ב הלכה ב‬ ‫ריב"ל אמר עליהם ועליהם כל ככל דברים הדברים מקרא משנה תלמוד ואגדה אפי' מה שתלמיד ותיק עתיד‬ '‫להורות לפני רבו כבר נאמר למשה בסיני מה טעם [קהלת א י] יש דבר שיאמר אדם ראה זה חדש הוא וגו‬ ‫משיבו חבירו ואומר לו כבר היה לעולמים‬ Talmud Yerushalmi Peah 2:2 R. Yehoshua b. Levi said: “On them”, “And on them”; “All”, “Corresponding to all”; “Words”, “The words”: Scripture, Mishnah, Legal reasoning [Talmud], Aggadah, even that which a senior student will one day teach in the presence of his master—all this was already said to Moshe at Sinai. What is the basis? “Sometimes there is something of which they say, “Look, this one is new!” His colleague responds: “That has been so forever.” The extra word fragments convey the maximal nature of the revelation at Sinai, which included all future pieces of Torah yet to be taught. But the point here is also that true Torah sounds as if it was delivered at Sinai. Like a moving niggun, which upon the first hearing feels like it evokes deep memories from your spiritual past, true Torah connects not only with our present moment, but transports us back to Sinai. Whenever we contemplate staking out new territory at a halakhic frontier, we have to ask ourselves: will my insight and my practice be plausibly received as if it is from Sinai? Will my new approach to a serious issue eventually inspire a certain degree of ho-hum acceptance? That R. Yehoshua b. Levi tells us, counter-intuitively, is the acid test of true creativity: it finds a way to be so thoroughly embedded into one’s spiritual landscape that one hardly notices that it is there. The third rule of standing at a halakhic frontier is to accept a certain degree of indeterminacy. It can take generations for new challenges to be fully digested. In a number of halakhic discussions, various rabbis confront a difficult question, one they feel has not been deeply engaged by the predecessors. In a few keys cases, the Sage responds with a commitment to (at least temporary) indeterminacy: ‫ .לא אומר בזה לא איסור ולא היתר‬I will not pronounce the case before me as permitted—it is simply not clear enough yet what the consequences of such a ruling would be. But I will also not pronounce the case before me as forbidden—it is simply not clear that go-to rulings that would seem to forbid are the right match. Like medieval maps of the world that look absurd to our GPS-trained minds, early maps of halakhic frontiers are likely to be rough sketches. We need to encourage people to sketch—‫—לא אומר בזה איסור‬and we need to acknowledge that at least parts of those sketches are likely to be wrong—‫.לא אומר בזה היתר‬ We need more of this dynamic and tolerance for indeterminacy in our halakhic discourse around our most difficult issues. We must be willing to say that it is going to take some time to sort things out, not as a dilatory tactic to forestall creativity, but as a strategy for enabling multiple approaches with integrity to vie for the hearts and minds of our people and our tradition. Those approaches should use the full depth and breadth of halakhic language. As long as those approaches are “articulated according to the boundaries of discussion of the Oral Torah” (R. Hutner, Pahad Yitzhak, Hanukkah 3), they have the potential to be the words of the living God. www.mechonhadar.org 53
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This last rule requires us to understand the proper role of halakhah in mapping the frontier. We often think of halakhah and its exemplars in the form of a judge. After an initial surge of creativity, the judge makes a decision, delivers a ‫ גזר דין‬and settles the case once and for all. This is, indeed, the mode halakhah must and should have for a community to function. While new circumstances always reopen old questions, conventions properly develop. It is the responsibility of halakhic discourse and the poskim who embody it to sift through a range of well- and long-considered approaches and to make judgment calls as to the best way to proceed. But I would suggest that when it comes to responding to many of the challenges presented by structuring intimate relationships in the contemporary world, it is too early in the discussion for the metaphor of judge to be useful. Instead, I would suggest a different metaphor—with apologies to those from outside the United States—drawn from American football. When standing at a halakhic frontier, you need an offensive lineman. The offensive lineman blocks for the quarterback and the running back and buys time for the wide receiver to get downfield. The offensive lineman never makes a play on his own, and the true glory always goes to the most creative and energetic players who know how to run fast, break tackles and throw long. But the offensive lineman—when playing at his best—prevents the defense from swarming the quarterback, keeps his blind spot clear and allows a great running back to find the gap in the opposing team’s formation. Without him, the most creatively designed plays will end in incompletion, a loss in yards or, God forbid, a sack. This strikes me as a better description of halakhah’s role in these sorts of conversations. We need to find halakhic formulations that can create sufficient space for the more creative among us to play out possible visions for how loving, intimate, committed relationships can be true to the people in them even as they are framed by more transcendent values. It is not the job of halakhah at this stage to give final and full imprimatur to one or more strategies for solving these issues. Rather, it is halakhah’s job—and those who teach it—to point out where the avenues of exploration that are most fruitful seem to be, what approaches will simply be overwhelmed (rightly) by clear, unambiguous values of the tradition, and to block and buy time for the more promising models to play themselves out. There will be plenty of time for judging later; this is the time for expansive thinking, guided, but not always driven by, those who have a good feeling for the rich thinking of the halakhic past. How can we know if we are succeeding in mapping the frontier correctly? I would suggest two simple standards: 1) If nothing proposed in the current flurry of creativity emerges as viable and even normative 200 years from now, we should be deeply disappointed. We will have failed our charge to be honest bearers of the mesorah and our failure to embed those ideas in the observant, committed core of our people is as devastating a retroactive critique of our misguided plans as there could be. We will seem like flat-earth proponents in a world that laughs at that model as outmoded and irrelevant. www.mechonhadar.org 54
This last rule requires us to understand the proper role of halakhah in mapping the frontier. We often think of halakhah a...
2) If nothing proposed in the current flurry of creativity emerges as obviously misguided 200 years from now, we should also be disappointed. Creativity demands a certain degree of daring and even recklessness. It is the job of halakhah as judge to ultimately pass judgment on that daring, to tame it and to keep it in line. But at this early phase, any conversation that is thoughtful and open enough to present something worthy of eternity ought to be producing some ideas that are ultimately meant for history’s trash heap. Otherwise, I doubt the process is as creative as it needs to be. Accepting these two guidelines means that the resources we pour into conversations like this will produce both some of the most beautiful ‫ משכנים‬we are capable of: sacred insights that will sustain our people for generations and help spiritually transport them back to Sinai. If we are honest, however, we will be aware that it is a virtual certainty—perhaps even a necessity—that the same process will produce a few ‫ .עגלי זהב‬How does one tell the difference? Is there a way to know in advance whether the gold one donates is going towards a sanctuary or an idol? It is indeed often hard to know. And yet, there is one notable distinction. Golden calves serve the need of the hour alone. Feeling overwhelmed and abandoned by Moshe’s prolonged absence, the people demand of Aharon: ‫קום עשה לנו אלקים אשר ילכו לפנינו כי זה משה האיש אשר העלנו‬ ‫ .מארץ מצרים לא ידענו מה היה לו‬Make us a god! We need a leader now! Moshe, despite his past kindnesses to us is gone, and we don’t know if he will ever come back. A golden calf is born of desperation, of a feeling of overwhelming vulnerability. But it addresses that loneliness without any regard for the future. It is a rash step that provides short-term relief without addressing the underlying issues in a sustainable way. ‫ ,משכנים‬by contrast, are always blueprints for the ‫ ,בית עולמים‬an eternal house of sanctity that is intended to endure far beyond one’s own spiritual crisis and the exigencies of the hour. Even when such a sanctuary is tailored to the needs of its time and place, even when it is intrinsically a temporary solution, it aims to sketch out contours that will plausibly guide those who will make its guiding values permanent. As we pour our hearts and minds into thinking about these issues, it is that aspiration for eternity that must always guide us. We should approach these topics with the tremendous enthusiasm of those who have been asked to be a part of building the next ‫ ,משכן‬to map the next halakhic frontier. And we must also have the great trepidation of one who knows the fine line between sanctuaries and idols, one who knows that the work of the first surveyors often looks terribly inaccurate to those who later build on their pioneering work. May God guide what we produce and firmly establish it. www.mechonhadar.org 55
2  If nothing proposed in the current flurry of creativity emerges as obviously misguided 200 years from now, we should al...
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R. Ovadiah Yosef—A Halakhic Tribute Rabbi Ethan Tucker, Center for Jewish Law and Values The final halakhah of Tosefta Moed, chapter 2, reads: ‫ .חכם שמת, הכל קרוביו‬The death of the Sage is like the death of direct relatives, black-letter Jewish law prescribing that one tears clothing upon hearing of the loss. Great Sages have a way of penetrating into our lives. Their insights of Torah generate an intimacy with them that can sustain even the absence of familial ties, personal interaction or a shared life narrative. R. Ovadiah has felt close to me for some time. Never having met him, rarely having heard the sound of his voice, the words of his responsa feel integrated into my religious personality and knowledge in so many ways. As the Jewish people sits shiva for this giant of Torah, it is incumbent upon those of us who feel close to enable his learning and teaching to continue and to reach ever greater numbers of people. R. Ovadiah lacked neither for controversy nor for enemies. Some of his off-hand remarks appeared one too many times in the Fringe section of CNN’s website. And like many who spend so much of their time within the inner discourse of rabbinic sources, he sometimes forgot how those sources sound unfiltered to the less learned. Others have documented his more offensive and careless statements over the years, and I make no apology for those. But he was also a gadol batorah—one of the great scholars of his generation, and those of us who study Torah are indebted to him in many ways. R. Ovadiah will be remembered for a number of his rulings that had vast political significance, many of which have been noted in the wake of his death. He validated the Jewish status of potential immigrants from Ethiopia and India and broadened the reach of the Israeli state and its Jewish demographic base. His heroic work on behalf of agunot in the wake of the surprisingly high losses of the 1973 Yom Kippur War allowed hundreds of women to move on with their lives. His landmark articulation of the halakhic plausibility of trading parts of the land of Israel for peace in order to save Jewish lives enabled Shas to be a part of the governmental coalition that supported the Oslo Accords. On matters large and small, whether as the Rishon Letziyyon or as the spiritual head of the Kenesset’s third largest political party, R. Ovadiah was deeply involved in politics. He forced the State of Israel to grapple with religious matters and urged his religious followers to be politically involved. But I want to focus here on three dynamics of his internal halakhic process, which are to me even more important than many of his substantive conclusions. These ought to be his primary legacy for those who long for halakhah to have vibrancy and relevance in the years ahead. Non-Sectarian Halakhah An ongoing tension in the history of halakhah is the relationship of the rules articulated by sometimes insular elites to the actual practices of the communities they hope to influence and shape. Poskim make an implicit choice: Do they see themselves as critics and crusaders alienated from the larger community, with a charge to keep the halakhah as pure and free of www.mechonhadar.org 57
R. Ovadiah Yosef   A Halakhic Tribute Rabbi Ethan Tucker, Center for Jewish Law and Values The final halakhah of Tosefta M...
dross as possible? Or do they deeply identify with their community and use their expertise to bridge the gap between rabbinic expectations and communal realities, both by persuading those they lead but also by articulating in halakhic language the basis for their constituents’ practices? While every leader does some of both, there is no question that some poskim—particularly in the modern period—are decidedly more sectarian than others. There is also no question that R. Ovadiah was decidedly on the non-sectarian end of the spectrum. Anyone who learns R. Ovadiah’s rulings on the laws of Shabbat sees again and again the ways in which he tried to maximize the plausibility of keeping Shabbat, whether by justifying the use of a toothbrush and toothpaste or by permitting children to play with Legos. These were not tendentious leniencies; they were part of a larger worldview that insisted that the average, religiously committed person in Beit Shean had to be able to observe Shabbat while living a basically normal life. R. Ovadiah was not shy of correcting common practice when he thought it was wrong, but he also clearly identified with the broader Sefaradi and Israeli community and sought to have halakhah take responsibility for them and their lives, even as he expected them to take responsibility for mitzvot. This perhaps emerges most clearly in his outsized respect for the inchoate religious instincts possessed by the average observant Jew. More than any other contemporary posek—as far as I can tell—R. Ovadiah cites the Talmudic dictum that codifies our respect for common halakhic intuition: !‫—הנח להם לישראל, אם אינן נביאים בני נביאים הן‬Leave the Jewish people alone! Even if they are not themselves prophets, they are descended from prophets. More than 50 times this aphorism appears in R. Ovadiah’s responsa, reflecting a sense we need more of in the world of psak: While the language of halakhic expertise is (perhaps appropriately) concentrated in the hands of an elite, the religious instincts encoded by that language are much more democratically distributed within the kingdom of priests and the holy nation that is ‘am yisrael. Comprehensiveness Every student of halakhah has experienced the joy of discovering a teshuvah of R. Ovadiah’s on a topic they were researching. Like manna from heaven, such a responsum provides for all the researcher’s basic needs, usually giving a full picture of sources spanning the 2000 years of rabbinic creativity. R. Ovadiah was nothing if not encyclopedic. His memory was epic and his painstaking gathering of sources awe-inspiring. These are feats and talents worthy of appreciation in their own right, and it is always sad to see such genius—in any field—pass from this world. But his comprehensiveness was also a value statement of its own. A passion for comprehensiveness contains within it a profound conviction: the more you look, the more you may find. ‫—בן בג בג אומר: הפך בה והפך בה דכולה בה‬Ben Bag Bag says: turn it and turn it, for everything is in it (Mishnah Avot 5:22). R. Ovadiah refused to accept the notion that a surface reading of halakhah generally yielded all there was to say on a matter. Only someone who probed the depths of halakhic literature, through a thorough survey of ancient, medieval and modern sources alike could claim to have reached true understanding. More than once in his responsa, R. Ovadiah dismisses the briefer rulings of great rabbis—such as R. Moshe Feinstein, R. Ovadiah Hedayah and R. Yosef Shalom Elyashiv—with the assessment: www.mechonhadar.org 58
dross as possible  Or do they deeply identify with their community and use their expertise to bridge the gap between rabbi...
‫ .לא שידד עמקים‬A ruling that does not plumb the depths of halakhic literature and that does not document that research for its readers cannot be the final word. This, too, is an inspiring and lofty charge. We must demand of ourselves and of our teachers and poskim that they account for all of the data offered in halakhic sources and not to slip in to the cherry picking of those views that conveniently think what we thought in the first place. Moreover, the transparency of sharing that research and the basis for one’s view, while accounting for those who take an opposite position, is critical for repairing the breach in trust that so many in our time feel towards halakhah and those who wield its authority. Restoring Balance to Halakhic Conversations Finally, R. Ovadiah’s most remarkable and revolutionary contribution, in my view, is his constant reassessment of the field of halakhic debate, driven by a concern that it not become skewed and unbalanced. Like his obsession with comprehensiveness, this is part of an approach that aims to see the entire map of halakhic discourse, and not just one of its more isolated edges. Much of the time, this was in service of R. Ovadiah’s countercultural project of pushing back on Ashkenazi hegemony and restoring what he felt to be the rightful dominance of Middle Eastern and North African halakhic voices—‫ .להחזיר עטרה ליושנה‬In particular, he aggressively reasserted the authority of R. Yosef Karo in the Shulhan Arukh, insisting that all non-Ashkenazi Jews had not only the right but the obligation to follow his rulings by default. In this, he reversed centuries of Ashkenazi influence over non-European halakhah. I remember well studying the laws of kashrut when preparing for semikhah. Time and again, you would see a ruling of the Shulhan Arukh get gradually eclipsed by a position of R. Moshe Isserless, not just among European scholars, but among giants of Middle Eastern halakhah, such as R. Abdallah Somekh and R. Yosef Hayyim Al-Hakham of 19th century Baghdad. And time and again, R. Ovadiah would revive the “pure” position of the Shulhan Arukh from the dead, as in his permission to rely on Gentiles to taste mixtures of kosher and non-kosher food for contamination rather than rely on a 60:1 ratio of nullification alone. [See Yabia Omer VIII:10.] But more is at work here than just a kulturkampf directed at Ashkenazi halakhic imperialism. R. Ovadiah’s true lesson for us is in never thinking that the debates of the past truly die. I have heard R. Ovadiah’s habit of delivering laundry lists of poskim supporting his view derided as nothing more than an attempt to overwhelm his opponent by numerical advantage. This is a misreading. The heavy-handed use of all the data his disposal is also R. Ovadiah’s way of asserting that positions that become unconventional in a given time and place never really disappear and their ongoing relevance must always be reassessed as those voices may come back to play a more dominant role when the picture is reconsidered later on. This is most profoundly at work in R. Ovadiah’s prolific use of the halakhic principle of permitting something with a ‫—ספק ספיקא‬a double axis of doubt. The standard use of a ‫ספק ספיקא‬ is simple. I assess the facts of a given case and identify two axes of concern. If on both axes I can show that there is a reasonable possibility that no problem exists, then I need not worry about the prohibition in question. For example: let’s say a man is uncertain about his status as a kohen, www.mechonhadar.org 59
    .                           A ruling that does not plumb the depths of halakhic literature and that does not document ...
due to questions about various aspects of his lineage that he cannot resolve. Nonetheless, because there is a good chance that he is a kohen, he avoids walking over graves and defiling himself via contact with the dead. Consider also a plot of land with questionable status as a grave. A kohen would avoid walking over that land, for fear that it was potentially defiling. The principle of ‫ ספק ספיקא‬states that our questionable kohen may walk over the questionable grave. It may be that there is no grave here, and even if there is, it is possible he is not a kohen. There are a number of ways to conceptualize why (and when) this would be permitted, but one simple way of thinking of it is that the first axis of doubt reduces my fear of prohibition to 50%--enough that I still act with caution—whereas the second axis of doubt make it more likely than not that there is no prohibition at all, and I can follow this statistical probability as a basis for being lenient. Now translate this model from empirical to legal reality. Instead of balancing doubtful fact patterns, imagine if we treat conflicting legal views as creating legal and epistemological “doubt.” If a case presented to me features two axes of legal debate—issues 1 and 2 can produce either a lenient or a stringent ruling—I can construct a decision tree with four branches: 1) Lenient1-Lenient2; 2) Lenient1-Stringent2; 3) Stringent1-Lenient2; 4) Stringent1-Stringent2. If the lenient factor in each debate eliminates all possibility of a problem, that means that three of the four potential outcomes produce a permissive ruling, with only one forbidding. Someone living in a tradition that generally follows the stringent ruling on both axes will naturally end up with outcome 4 and forbid. Invoking ‫ ספק ספיקא‬is a way of saying that the legal “doubt” generated by an analysis of all of the positions makes this unnecessary. Since there is only a 25% “chance” that outcome 4 is correct, there is no need to remain on that extreme branch of the halakhic tree. Let’s make this concrete. R. Ovadiah, in one of his responsa (Yehaveh Da’at V:54), addresses the halakhic issue of Jews consuming food that was cooked by Gentiles. Specifically, he is asked whether there is a way to justify hiring Arab cooks for Israeli hotels without constantly having a Jew present to be directly involved of the cooking of the food. Two major debates defined earlier discussions of this sort of situation. 1) German rabbis developed the notion that Jewish “involvement” in the preparation of Jewish food could be limited to providing the fire for the cooking, akin to our lighting of a stove or even a pilot light (=Lenient1). Spanish rabbis had no such notion and required actual involvement in the cooking itself (=Stringent1). 2) R. Avraham held that restrictions around Gentile cooking for Jews did not apply in a Jewish home (=Lenient2). R. Tam rejected this exception and thought such laws applied in all spaces (=Stringent2). The Shulhan Arukh sides with the stringent views in his rulings on both of these debates. R. Ovadiah, however, invokes the principle of ‫ ספק ספיקא‬to permit in cases where both grounds for leniency are present: a Jew generates the fire that is used for cooking and the cooking is happening in a Jewish space (such as an Israeli hotel). Even followers of the stringent positions on each axis need not follow the stringent positions at the same time in a single case. And note that the result is a holding that seems to go against the Shulhan Arukh and push more towards the some of the Ashkenazi positions in this area. www.mechonhadar.org 60
due to questions about various aspects of his lineage that he cannot resolve. Nonetheless, because there is a good chance ...
R. Ovadiah uses the principle of ‫ ספק ספיקא‬hundreds of times in his responsa to this sort of effect. This is not merely a quest for leniency. It is an attempt to sense when the balance of the halakhic discourse has gotten out of whack and is beginning to ignore too much of its own data. It telegraphs an ownership of the entire halakhic tradition, not just the views that achieve conventional dominance in a given time and place. Even if R. Tam prevailed over R. Avraham in his own day, R. Avraham’s voice remains a live factor to be contended with once other debates are brought into the mix and affect the total legal composition of a given case. For the Jewish people to deepen their attachment to halakhah, they must share in its richness and complexity. The voice of halakhah will not command respect and admiration by speaking with the harsh monotony of a megaphone, but only by sounding like the rich symphony that it truly is. R. Ovadiah played some of halakhah’s most beautiful music in that regard and, in his responsa, left us much to listen to for many years. ‫—יהי זכרו ברוך‬May his memory be a blessing. ‫—ותהיינה שפתותיו דובבות בקבר‬May his lips continue to move from the grave as we mine his tremendous legacy for ever greater wisdom and insight. www.mechonhadar.org 61
R. Ovadiah uses the principle of                         hundreds of times in his responsa to this sort of effect. This is...
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Who should fast the day before the Seder? R. Ethan Tucker, Center for Jewish Law and Values Yerushalmi Pesahim 10:1 records that Rabbi used to fast on the day before Pesah because he was a first born. By contrast, R. Yonah, despite being a first born is said to have disregarded this practice. The practice is presented as normative and common in Massekhet Soferim 21:1. Regarding the scope of this practice, the discussion centers around how precisely we track the practice with the midrashic memory of who died in the plague of the first born in Egypt. The Torah says—‫ ,כי אין בית אשר אין שם מת‬that there was no house without someone who died. This suggests a very expansive definition of who died in the plague, since it was certainly not the case that every house had a first-born son born to its father, which would be the standard definition of first born in the context of inheritance and the patriarchal societies of the day. Midrashic sources thus suggest a much broader scope to the plague. Shemot Rabbah 18:3 describes the plague of the first born as affecting all first born, both matrilineal and patrilineal. It goes further, suggesting that first born daughters were killed as well, and that only Bityah, Pharaoh’s daughter, was saved on account of Moshe. Peskita Rabbati cites R. Abba b. Hama as saying that a house lacking a first born would see its head of household (‫)גדול הבית‬ struck down. [The Mekhilta has a different approach to the phrase ‫,כי אין בית אשר אין שם מת‬ suggesting a desecration of already dead first-born and their tombs resulted in a feeling of catastrophe and death in every Egyptian home.] Note that these various categories are different in terms of their resonance with other legal categories. Patrilineal first-born are significant with respect to inheritance, the‫ בכורה‬follows the first born of the father, irrespective of how many prior children a given wife has had with other men. Matrilineal first-born are significant with respect to ‫ ,פדיון הבן‬the redemption of the first born son. In that context, only the mother’s first born is relevant, such that a father’s first child in a second marriage where the wife already had a child with another man is exempt. By contrast, female first-born never otherwise have a legal status, and the same goes for head of household (outside of some peripheral laws related to mourning and the start of shiva). This unevenness plays a role for some later interpreters in deciding which parts of these midrashim should be actualized in the context of the fast the day before Pesah. On some level, the question is: Should the set of people who fast be seen as derivative of other categories in halakhah, or should the aggadah and the social realities it assumes and describes drive the practice? Ra’aviah II:525, based on these midrashim, says that the first born of either the father or the mother must fast, since the plague in Egypt was all-encompassing of both types of first born. However, he says that heads of household need not fast; we do not go that far in putting the midrash’s mythic memory into practice. Shulhan Arukh OH 470:1 follows this view. The children of kohanim/b’not kohanim and levi’im/b’not levi’im are exempt from ‫פדיון‬ ‫ .הבן‬However, Responsa Maharil #14 says that these first born should fast—even if they are not the father’s first-born, such that they have no legal status of a first-born in any area of law—since www.mechonhadar.org 63
Who should fast the day before the Seder  R. Ethan Tucker, Center for Jewish Law and Values Yerushalmi Pesahim 10 1 record...
at the time of the plague in Egypt, they had no special status vis-à-vis regular first born sons and therefore must fast to reflect gratitude and trepidation for having been saved from the plague. Agudah Pesahim #91 follows the midrash in saying that first-born daughters must fast as well. Responsa Maharil #14 reports that his father-in-law in fact made his daughter, Maharil’s divorcee (!), fast on the day before Pesah. However, Sefer Maharil Erev Pesah #4 seems to suggest that most legal authorities did not require this. Shulhan Arukh OH 470:1reports the view of the Agudah. Rema states that it is not the practice to require daughters to fast. Gra grounds this in the fact that we have no evidence of the Torah ever prescribing a special legal status to the female first-born in any other area. Finally, the laws of first-born are more broadly affected by miscarriages and stillbirths. In general, any woman who has miscarried a significant way through her pregnancy or who has a stillbirth does not redeem the next son born to her. However, Magen Avraham states that a first-born son after a miscarriage still fasts on the day before Pesah, since he is still a first-born for purposes of inheritance (through his father, presuming he is indeed his father’s first born). He here appeals to other areas of law to fill in details with respect to this fast. Hok Ya’akov leaves unresolved the case of a Caesarian-section birth, since such a child neither has a ‫ פדיון הבן‬nor is considered the first-born for purposes of inheritance (an interesting discussion in its own right). Based on reinforcement from other legal categories, it would seem we should exempt, and yet based on the person’s social status and how they would have been regarded at the time of the plague of the first born in Egypt, they would certainly have been treated as a first born. Kaf Hahayim says we should resolve this doubt leniently and not require such a person to fast. Shevut Ya’akov II:16 clarifies that any live birth, even if the child dies within 30 days, is considered the first-born for purposes of eliminating the status of subsequent children from that category. In many contemporary communities, this fast is deliberately evaded by attending a celebration completing learning, a tradition that goes back to at least the 16th century. In this context, we might think not about who is expected to fast, but onto whom we project expectations of first-born status and how we maximize our tangible connection to our memory of the plague of the first-born. We perhaps most fully feel the after effects of ‫כי אין בית אשר אין שם‬ ‫ מת‬by making sure that at least one person from every home, and especially all of our first born sons and daughters, begin the day before Pesah at minyan and joining in to an experience of meaningful learning. We can thus enter, one home at a time, into Pesah with a profound sense of gratitude for our redemption through God’s hands. www.mechonhadar.org 64
at the time of the plague in Egypt, they had no special status vis-  -vis regular first born sons and therefore must fast ...
How Loud Can You Pray? R. Ethan Tucker, Center for Jewish Law and Values There are a few indications of engagement with volume during prayer in the Tanakh itself. Most prominent is a fairly detailed description of Hannah's prayer for a son in I Shmuel 1:12-13: : ָ‫וְ הָ יָה כִּ י הִּ ְרבְ תָ ה לְ הִּ תפלֵּל לִּ פְ נֵּי ְיקֹ וָק וְ עֵּלִּ י שֹ מֵּ ר אֶ ת פִּ יה‬ ַּ ְ :‫וְ חַּ נָה הִּ יא מדַּ בֶ רת עַּל לִּ בָ ּה רק שפָתֶ יהָ נָעֹות וְ קֹולָּה ל ֹא יִּשָ מֵּ ע ויַּחְ שבֶ הָ עלִּ י לְ שכֹ רה‬ ָ ִּ ֵּ ְ ַּ ַּ ְ ַּ ֶ ְ We are told that Hannah prayed at length and she was "speaking to herself, only her lips moved but her voice could not be heard." Apparently, this was not a normal protocol for prayer, since Eli, the priest who was watching her, thought her to be drunk. Other models include the image in I Melakhim 18:27 of the prophets of Ba'al, who, in their showdown with Eliyahu on Mount Carmel, call out to Ba'al--with Eliyahu's urging--"in a loud voice." The Gentile king of the city of Nineveh calls on his people to repent in order to avoid the city's destruction at God's hand. As part of the protocol of repentance, he urges the people to "call out to God with force" in Yonah 3:8. A similarly loud prayer is described at a national assembly of the returning Exiles in Nehemiah 9:4. As we enter into the rabbinic period, the details of Hannah's prayer achieve great prominence. The specific concern of not praying too loudly, in the context of the Amidah, is already attested in Tosefta Berakhot 3:6. The Tosefta asks, "Could it be that one should make one's voice heard? The story about Hannah is explicit: 'She spoke to herself.'" On Talmud Bavli Berakhot 31a, a similar tradition emphasizes the part of the verse that says "her voice was not heard" as support for the idea that it is forbidden to raise one's voice in prayer. A baraita on Talmud Bavli Berakhot 24b states that one who makes one's voice heard during the Amidah is of little faith (as it implies that added volume is required for God to hear prayer) and one who raises one's voice in prayer is like a false prophet (perhaps evoking the negative image of the shouting prophets of Ba'al). The formulations here are somewhat ambiguous as to whether they insist that one should not make any sound, or whether one should simply be sure not to be excessively loud. [Indeed, a focus on prayer not being demonstratively public, as opposed to needing to be silent, seems to be the concern in a number of passages in the Christian Bible as well.] One strand took a very hard stance on virtual silence during the Amidah, seeing the negative aspects of loud prayer as extending even to saying the words such that one would hear them oneself. Tanna D'vei Eliyahu 26 (ed. Friedmann), in a clear expansion of the traditions on Bavli Berakhot 24b, states that one who prays loudly enough to hear oneself gives false testimony and/or is of little faith. This implies that prayer should be totally silent. [Some versions of the Tosefta above end up getting influenced by this strand and forbid prayer that reaches even one's own ears.] This view lives on well into the middle ages and is cited by www.mechonhadar.org 65
How Loud Can You Pray  R. Ethan Tucker, Center for Jewish Law and Values There are a few indications of engagement with vo...
Rashba, Meiri and others. Most prominently, Zohar Vayakhel 202a seems to suggest that a prayer heard by any human ear (possibly including the ear of the pray-er himself) cannot fully be heard in the heavens. Another strand seems to be more permissive and possibly even encouraging of moderate volume in prayer. In Talmud Yerushalmi Berakhot 4:1, we hear that R. Abba b. Zavda used to pray audibly (perhaps even loudly). R. Yonah used to pray quietly in the synagogue (presumably so as not to disturb others), but at home, he would pray loudly enough that the members of his house learned the words of the Amidah from him. R. Mana reports that the members of his father's househould similarly learned prayers from his audible prayer. In Yerushalmi Berakhot 2:4, a baraita teaches that one who prays without hearing the prayer has still fulfilled one's obligation. This formulation suggests that, in fact, it is ideal to pray loudly enough in order to hear one's own prayer and perhaps the only problem is highly excessive volume. On Talmud Bavli Berakhot 24b, R. Huna limits the ban on audible or loud prayer to cases where a person can maintain proper focus. One who cannot focus with a whispered prayer alone is allowed to pray audibly. [A later gloss adds that this is only permissible in private; in public, one must avoid disturbing others. See more below.] Indeed, a tradition of praying the Amidah loudly continued into the middle ages, at least in certain times and places. Piskei Tosafot Rosh Hashanah #72 reports that on Rosh Hashanah and Yom Kippur, it was common practice to pray the private Amidah aloud, despite the fact that this would disturb others. In truth, this early data seems to reflect an unresolved tension regarding the best way to pray. A truly silent prayer emphasizes God's ability to hear even the most private requests and avoids all pretensions of excessively outwardly directed piety. On the other hand, the passion of prayer, in addition to some of the educational and contemplative benefits of saying the words aloud argue for more space for increased volume. Later sources try to take sides in this debate and to offer some syntheses that can preserve all the values involved. In Hilkhot Tefillah 5:1, Rambam describes ‫--השויית קול‬moderate volume--as one of the requirements for praying the Amidah. In Hilkhot Tefillah 5:9, he says that one should make sure to hear one's own prayer, but should only be louder if such volume is indispensable to one's ability to focus and one is in private. Rashba states that one should hear one's own prayer but make sure that others do not hear it. He follows R. Huna in making an allowance for those unable to focus and follows the Yerushalmi traditions by reading them as allowing prayer done aloud with the intention of educating the members of one's household. [The plain sense of the Yerushalmi is that this was a by-product of a loud prayer, not necessarily that it was the intention of the entire exercise.] Tur and Shulhan Arukh 101:2 follow this basic compromise position, though R. Yosef Karo, in Bedek Habayit, later becomes concerned for the Zohar and suggests trying to keep prayer entirely silent. Nonetheless, Magen Avraham and Gra reject the notion that the Zohar should even be read this way and insist that one should indeed pray loud enough so that one can hear oneself. Birkei Yosef and Hayyei Adam affirm the other boundary: one's neighbor should not be able to hear one's prayer. www.mechonhadar.org 66
Rashba, Meiri and others. Most prominently, Zohar Vayakhel 202a seems to suggest that a prayer heard by any human ear  pos...
Regarding the practice of praying loudly on Rosh Hashanah and Yom Kippur, Mordechai Yoma #725 justifies it not only for educational purposes, but also explains that concerns about distracting others are moot when everyone has a printed text in front of them, as was the case on Rosh Hashanah and Yom Kippur, when each individual had a Mahzor. Mahari Weil #191, however, seems to oppose audible prayer even on Yom Kippur. Shulhan Arukh seems to tolerate this High Holiday practice and Rema confirms the practice has continued to his day, but accomodates Mahari Weil by insisting that people still not be excessively loud. Magen Avraham nonetheless encourages quiet prayer even on these days unless it is essential for one's personal concentration. It seems the best guidance for the Amidah is thus to say it loud enough to hear oneself pray but not loud enough so others will hear. There might be appropriate leeway in contexts where eveyone has a siddur and a person desperately needs a bit more volume to focus, but that leeway must be exercised very judiciously, particularly in public prayer spaces. What about the other parts of davening? The above sources seem mainly to refer to the Amidah. Is there a premium on praying (at least somewhat) quietly for the other parts of the service? There are indeed a number of voices that emphasize that the volume dynamics of prayer ought to be the same for all parts of the service. R. Yitzhak Luria (clearly influenced by the Zohar) was careful to have all parts of his prayer, even Pesukei DeZimra, be done in virtual silence. Mishnah Berurah 101:7 endorses this approach. This argues for insisting on a degree of quiet throughout the entire service. But another line of thought persisted throughout the ages. Ramban, in his commentary on Shemot 13:16, offers the following dramatic explanation of public acts of prayer: ‫רמב"ן שמות פרק יג:טז‬ ‫וכוונת רוממות הקול בתפלות וכוונת בתי הכנסיות וזכות תפלת הרבים, זהו שיהיה לבני אדם מקום יתקבצו‬ ‫ויודו לאל שבראם והמציאם ויפרסמו זה ויאמרו לפניו בריותיך אנחנו, וזו כוונתם במה שאמרו ז"ל (ירושלמי‬ ‫תענית פ"ב ה"א) ויקראו אל אלהים בחזקה (יונה ג ח), מכאן אתה למד שתפלה צריכה קול, חציפא נצח‬ ‫לבישה‬ Ramban Shemot 13:16 The point of raising our voices in our prayers and the point of synagogues and the merit of the prayer of the community is that people will have a place to gather where they can acknowledge the God who created and made them, so that they can publicize this and say in the Divine Presence: "We are your creations!" This is the meaning of the rabbinic statement: "'They called out to God with force'--From here you learn that prayer requires volume; one with nerve can defeat evil." We do not have an exact full parallel to the source Ramban quotes at the end with its demand for prayer with volume, but the thrust here is clear: there is a power to words being www.mechonhadar.org 67
Regarding the practice of praying loudly on Rosh Hashanah and Yom Kippur, Mordechai Yoma  725 justifies it not only for ed...
shouted out loudly, just as attendees at a political rally makes their full passion an conviction known with a rallying cry, not just by waving signs. Indeed, this mode of more audible prayer, even when rejected for the Amidah, lived on in many Jewish communities and lives on until the present day. R. Yom Tov Lippman Heller (in Malbushei Yom Tov on Levush OH 101) reports that it was common practice for people in his community to shout out the non-Amidah parts of the service so loudly that the Christians often mocked the Jews for this practice. He cites the Ramban as support for what otherwise might be a surprising practice. Karliner Hasidim until today are renowned for the screaming that goes on in their services. Arokh Hashulhan OH 101:8 also defends this approach and even sees to prefer fervent prayer with volume as stirring up greater passion and intention. R. Amram Bloom (Hungary, 19th c.), in Responsa Beit She’arim OH #40 and R. Menashe Klein (Hungary/United States, 20th-21st c.), in notes on the above responsum, both emphatically endorse praying the other parts of the service out loud. And while concerns about distracting others might be relevant, they might be mitigated by some of the above factors, particularly given the ubiquity of prayerbooks in contemporary synagogues. That said, we have already seen serious concerns about being overly disruptive in public spaces, and this extends beyond any local halakhot regarding volume and prayer. In fact, there seems to be a general notion that a person should not behave in a distracting fashion in the context of public prayer. Even if one has a particularly effective spiritual practice one uses in private, one should not import it to the public space if it will not blend in. This is first illustrated by R. Akiva's behavior as described by R. Yehudah in Tosefta Berakhot 3:5: ‫אמ' ר' יהודה כשהיה ר' עקיבא מתפלל עם הצבור היה מקצר בפני כולם וכשהוא מתפלל בינו לבין עצמו אדם‬ ‫מניחו בזוית זו ומוצאו בזוית אחרת מפני הכרעות והשתחואות‬ Said R. Yehudah: When R. Akiva used to pray with the community, he would finish before everyone else. When he prayed alone, a person could leave him in one corner and find him in another corner, on account of the many bows and prostrations that he would do. In the 20th century, R. Moshe Feinstein expanded on this model in Iggerot Moshe OH V:38:6, arguing that one should not do anything strange in the context of synagogue prayer. To the extent that one prays in a fashion that is so loud and so out of context that it distracts others, it would fall under this rubric of concern. A person always has to be sensitive to their environment. While it feels wrong to silence someone who is passionately engaged in prayer, it is also reasonable to demand that one or two individuals not be total outliers to the aesthetic that is otherwise present in a space. If a prayer space is generally more quiet and contemplative, this person should moderate themselves to blend in more and perhaps find other outlets for more fully expressing their passions through volume. www.mechonhadar.org 68
shouted out loudly, just as attendees at a political rally makes their full passion an conviction known with a rallying cr...