Marc B. Shapiro – Forgery and the Halakhic Process, part 3

Forgery and the Halakhic Process, part 3
By Marc B. Shapiro

I thought that I had exhausted all I had to say about Rabbi Zvi Benjamin Auerbach’s edition of the Eshkol — see my first two posts at the Seforim blog, here and here [and elaborations] — but thanks to some helpful comments from readers, there is some more material that should be brought to the public’s attention. Even before looking at this, let me express my gratitude to Dan Rabinowitz who sent me this picture of a youthful Auerbach.
In my first post I cited R. Yitzhak Ratsaby as a very rare example of a posek who is aware of the problems with Auerbach’s Eshkol. A scholar who wishes to remain anonymous, and who has helped me a great deal in the past,[1] called my attention to R. Yehiel Avraham Zilber (the son of R. Binyamin Yehoshua Zilber), who is also aware of the Eshkol problem. In his Berur Halakhah, Yoreh Deah (second series), p. 111, he notes that R. Ovadiah Yosef cites Auerbach’s Eshkol in matters of hilkhot niddah. Yet the authentic Eshkol does not have any section for niddah. In fact, as Yaakov Sussman has pointed out,[2] Auerbach’s Eshkol, vol. 1, p. 117, also refers to the Yerushalmi on Niddah. However, this is impossible as neither R. Abraham ben Isaac nor any of the other rishonim had this volume.

Zilber writes that his own approach is not to rely on anything in either Auerbach’s Eshkol or the Nahal Eshkol. In his Berur Halakhah, Orah Hayyim (third series), p. 16, he also states that a certain passage in Auerbach’s Eshkol, Hilkhot Tzitzit cannot be authentic. Before I was alerted to these two sources I had never examined any of Zilber’s volumes (although I have perused the works of his father). Now that I have looked at them I see that they contain a great deal of learning, but my sense is that they are of no significance in the halakhic world, and are rarely quoted.

This doesn’t mean that they are not valuable in and of themselves, but with so many halakhic books being published, only some can make it to the top. The rest, no matter how learned, remain little studied and even less quoted. One must feel bad for authors who put so much effort into producing their works which could be of great use to people, yet at the end of the day do not have any impact.

As Eliezer Brodt has already pointed out, in a previous post at the Seforim blog, with respect to books on hilkhot shemitah, although new volumes continue to appear, it is hard to believe that much of anything original is being added.[3] The same can be said for the laws of Shabbat, where I don’t see how another new book recording the halakhot can possibly have any value as we already have so many fine books in this area. If the author is going to come up with new rulings, then fine, but it is hard to see how the world will benefit from yet another collection of the various melakhot and what is permitted and forbidden.

This doesn’t mean that up-and-coming halakhic scholars have nothing to write about. For example, there is only one book on the halakhic issues involved in sex change operations, so here is an area that cries out for our best and brightest to direct their talents towards.
For those who are writing books that are not given the attention due them, one should not lose hope. Occasionally a book that is ignored in its time comes back in a future generation and assumes great popularity (e.g., the Minhat Hinnukh), while books which were very popular in previous years fall out of style. One example of the latter is the Kitzur Shulhan Arukh. When I was young everyone seemed to study it. It has been reprinted numerous times and also translated into many languages. According to the Encyclopedia Judaica, it went through fourteen editions in the author’s lifetime, which I think is a record for halakhic works. Yet today, I don’t know anyone who uses it as a work of practical halakhah. (Simply writing this ensures that people will e-mail me to point out that there are indeed some who still use it).

Returning to the anonymous scholar mentioned above, he also alerted me to a letter by R. Michael[4] Aryeh Stiegel which appeared in Tzefunot 1 (Tevet, 5749): 108. In this case I had actually seen the letter, as I own the journal and even have my pen mark on this page. But I had forgotten about it, so once again I am in the anonymous scholar’s debt. Before noting what he says, let me repeat what I mentioned in a previous post, namely, that the publication of the fourth volume of the Eshkol is very strange. We are given no information about the manuscript such as where it came from and why no one, including Auerbach’s family, had ever heard of it until it was published.

There is one other point which I neglected to make in my previous post, but it also is relevant. In 1974 Bernard Bergman published an essay on Auerbach in the Joshua Finkel Festschrift (later included as an appendix to vol. 4 of the Eshkol) in which he defended him against Albeck’s attack. At the time of this essay Bergman knew nothing about any unpublished manuscript of Auerbach’s Eshkol. It is very suspicious, to say the least, that Bergman is also the one to publish the newly discovered volume. Are we supposed to assume that it is just coincidence that Bergman, who earlier had published an essay on Auerbach, discovered this manuscript? (Those who are old enough will recall that during these years Bergman had lots of other things on his mind.) Of course, it is possible that some rare book dealer came into possession of the manuscript and knowing Bergman’s interest in Auerbach, sold it to him. In my previous post I stated that despite the problems that can be raised about the new volume, barring any further evidence we should give Bergman the benefit of the doubt.

Yet Stiegel notes something which should force us to reopen the issue. In volume 4, p. 26 n. 24, we find the following in the Nahal Eshkol.

לא ידעתי למה מביא זה, שהרי רבא הקשה אי הכי במקדש היכי תקעינן. אך מצאתי שגם הראב”ן ר”ה מביא דרש זה, ועי’ באבן שלמה על הראב”ן שם אות ד’ שהאריך ליישב קושיה זו.

The problem is that the edition of Ra’avan with R. Solomon Zalman Ehrenreich’s commentary Even Shlomo only appeared in 1926, many years after Auerbach’s death. This sort of anachronism is often what enables scholars to uncover a fraud.

When problems became apparent in Auerbach’s edition, Albeck called for the manuscript to be produced, and this was never done. Here too, I call for the manuscript of volume 4 to be produced, and for the publisher, Machon Harry Fischel, to join in this demand. Only when we can examine the manuscript will we be able to determine what is going on. If the answer given is that the manuscript cannot be located, which was the same answer given one hundred years ago, then the possibility that Eshkol volume 4 is a late twentieth century forgery will have to be seriously considered.

The anonymous scholar also alerted me to R. Hayyim Krauss’ Toharat ha-Shabbat ke-Hilkhatah. Krauss is known for a campaign he mounted in the 1970’s, culminating in the publication of his books Birkhot ha-Hayyim and Mekhalkel Hayim be-Hesed, which were in large part devoted to showing that the proper – and original — pronunciation in the Amidah is morid ha-geshem, not gashem. There is no doubt that Kraus was correct, but I don’t know if his campaign bore any fruit. Certainly in the United States when I was growing up, virtually everyone said gashem since that is what the siddurim had, including Brinbaum. Matters have changed greatly in the last twenty years because of the ArtScroll siddur. This siddur vocalizes – or, to use the word that ArtScroll prefers, “vowelizes” – גשם as geshem. I have previously noted one example where the Artscroll siddur has changed the davening practices of the American Orthodox community[5] and this is another. Had the ArtScroll siddur given gashem as the pronunciation, that’s what we all would be saying now.

Since this blog is devoted to seforim, with a great focus on bibliographical curiosities, let me mention the following: It has been awhile since I’ve seen the literature about geshem vs. gashem, but I remember that the side that supported gashem was able to show that it was not only grammarians who supported this reading, but R. David Lida (c. 1650-1696) Ashkenazi rav of Amsterdam, also attested to it. In fact, he might be the earliest authority to do so. But those who cited Lida didn’t know a couple of things about him. Neither do the people who keep publishing his works. To begin with, Lida was a plagiarizer, and not a very skilled one at that.[6]

People can live with plagiarism, especially as it is not uncommon in haredi “mehkar.”[7] But worse, much worse, is that Lida also appears to have been a Sabbatian. In my Limits of Orthodox Theology, p. 42 n. 21, I called attention to something similar. The Yemenite kabbalists who attacked R. Yihye Kafih made use of, and defended, a Sabbatian work written by Nehemiah Hayon. It was only after R. Kook pointed out the true nature of Hayon’s work that they excised this defense. As I commented in my book, this shows the elasticity of apologetics, in that if one beleves a work is “kosher,” he will devote great efforts to defending it, but after learning that the author is a Sabbatian the defense is immediately dropped. We must ask, however, why were the ideas in this work acceptable before the author’s biography was known?

Returning to Krauss’ Toharat ha-Shabbat ke-Hilkhatah, in volume 1 of this work he cites Auerbach’s Eshkol. In volume 2, p. 450, Krauss publishes a letter he received from R. David Zvi Hillman. Hillman, in addition to being an outstanding talmid hakham, also has a real historical sense and many years ago edited Iggerot ha-Tanya u-Venei Doro (Jerusalem, 1953). In more recent years he published an interesting, though wrong-headed, article arguing that Meiri’s views of anti-Gentile halakhot are not to be taken seriously but were written due to fear of the censor (which was a concern even in pre-printing days).[8] He has also been involved with the Frankel edition of the Rambam, most recently editing Sefer ha-Mitzvot. Despite its problems, the Frankel edition of the Mishneh Torah is now the standard edition for both yeshivot and the academic world.[9]

As everyone knows, the Frankel edition has been attacked for systematically ignoring the writings of some prominent non-haredi gedolim. For example, there are no references to R. Kook, even though he wrote a commentary on the Rambam’s shemitah laws, which will be mentioned in an upcoming post at the Seforim blog. (He is cited the ArtScroll Mishnah volume on Shevi’it.) It was because of this affront that R. Kook’s followers have put out a separate index of commentaries on the Mishneh Torah, which is now available online. See here.

A particularly harsh criticism of the Frankel edition, which appeared as an “open letter,” is found here:
Hillman chose to answer this critique. He briefly mentions the issue of R. Kook, but has a lot to say about R. Kafih, and his critique of the latter is incredibly sharp. Here is his letter:

Even if one doesn’t agree with him, it should be obvious to all that Hillman has a much broader knowledge than the typical talmid hakham. It therefore should not be surprising that he was critical of Krauss for including Auerbach’s Eshkol. In fact, Krauss does not even print Hillman’s entire letter, but cuts out a section that no doubt would have been seen as disrespectful to Auerbach. Thus, Hillman writes:

ומ”ש באשכול ליתי’ באשכול (הוצ’ אלבעק) אלא . . .
Krauss inserted the three dots since Hillman’s original letter must have continued by referring to Auerbach’s edition. Similarly, a few lines later Hillman writes

(. . . ובנד”ד יש לנו לזה ראיה נוספת ממה שלא הוזכרה שזה דעת האשכול בספר המאירי שהיה הצאצאיו ושמעתתי’ בפומיה תדיר בכינוי גדולי קדמונינו) ואף את”ל . . . ומבעל האשכול יצאו הדברים מ”מ הלכה כהרשב”א דבתראה הוי.

The second ellipsis was inserted by Krauss. In his letter Hillman must have written, “Even if you want to say that Auerbach didn’t forge this section, and it really was stated by the Eshkol.” Yet Krauss didn’t want anything negative about Auerbach to appear in print, so he cut it out. Hillman also calls attention to the comments of R. Hayyim Eleazar Shapira in the introduction to his Darkhei Teshuvah on hilkhot mikvaot. Here Shapira notes that the Maharsham cited Auerbach’s Eshkol, and this once again raises the problem I have earlier discussed, namely, what to do with pesakim that rely on forged texts? (This is not such a problem in hilkhot mikvaot, as Shapira notes that most of what is quoted from Auerbach’s Eshkol is le-humra).

Shapira states that he is not prepared to decide the matter of the authenticity of Auerbach’s Eshkol, yet according to Hillman נראה מכתלי דבריו שדעתו נוטה לצד המערערים על אמיתותו. It is obvious that the reason Shapira does not definitively decide the matter is because of his feeling of respect for Auerbach as a great talmid hakham. The notion that such an outstanding Torah scholar, one of the German rabbinic elite, could perpetrate such a fraud is difficult for people to accept. Yet Shapira is also surprised that the Maharsham cites Auerbach’s Eshkol entirely oblivious to the problems with this edition.

I don’t see this as unusual at all. Shapira was an incredibly learned man, with knowledge of all sorts of things, but the Maharsham was an ish halakah whose life was spent in Shas and Poskim. Similarly, although R. Moshe Feinstein quotes Auerbach’s Eshkol, I would assume that he too had never heard of the controversy, as it is not something that penetrated the walls of the traditional Lithuanian Beit Midrash (at least not until so many bachurim began reading the Seforim blog!). Shapira writes:

ולא באתי להכריע, יען כי כם כבוד הה”ג ז”ל בעל נחל אשכול המו”ל (ואשר האריך לבאר כשיטתו במבואו והקדמתו) לא נקל בעיני . . . (ולא ידעתי מה הי’ לו להג’ מהרש”ם ז”ל וכי לא ראה או לא ידע, מ”ש וערערו על ככה והביא כמעט כל דברי ס’ האשכול כאלו הי’ ברור ומקובל אצלו הללמ”ס שזהוא להראב”ד בלי ספק ופקפוק לעולם).

In his reply to Hillman, Krauss states that he was indeed aware of the problems with Auerbach’s Eshkol, and even referred to Shapira’s introduction, but he did not want to elaborate (and indeed, he never quotes what Shapira says, but only tells the reader to examine it). I think that many people in the traditional world who know about the issue have this problem as well. They are between a rock and a hard place. If they say nothing, then a forgery is allowed to remain part of the Torah world. Yet if they write against it, they must take on someone who in his lifetime was recognized as one of the gedolim of Germany. Like all gedolim, he was also regarded as a great tzaddik.

Krauss does allow himself to say the following:

ובזה צע”ג על שו”ת שבט הלוי ח”א סי’ כ”ד – ועוד כמה מאחרוני הזמן – אשר לא שת לבו לדברים אלו ודורש דברי האשכול כמין חומר.

Prof. Yaakov Spiegel has also called my attention to his article in the latest Sidra[10] focusing on the various terms used for describing the blessing of the new moon. It so happens that in medieval times the term kiddush levanah was not found in either the Sephardic world or among Provencal scholars. Yet as Spiegel notes, this expression is found in Auerbach’s Eshkol, in a section that is missing from Albeck’s edition. This is another proof (if any was needed) that Auerbach’s edition is a forgery.[11]

The Auerbach forgery relates to another issue, that of rabbis lying and making things up for what they view as good reasons (which ties into my current project on censorship). Let me offer one example of this, but first I must give some background. If there is one thing Orthodox Jews know it is that sturgeon is a non-kosher fish. Yet as with so much else that people know, this is not exactly correct. While our practice today is not to eat sturgeon, no less a figure than the great R. Yehezkel Landau, the Noda bi-Yehudah, permitted it.[12] This decision led to enormous controversy as many of the greatest rabbis of Europe lined up in opposition.

Rabbi Aaron Chorin, at this time rav of Arad, Hungary, was a student of R. Yehezkel and he took up the cause of kosher sturgeon, publishing the volume Imrei Noam (Prague 1798) in support of his teacher’s view. At this time he had not yet crossed over to the dark side where he would, in the Hatam Sofer’s words, become known as אחר, an abbreviation of the way Chorin signed his name: Aron Choriner Rabbiner (see Teshuvot Hatam Sofer, 6:96). R. Isaac Grishaber, the rav of Paks, took up the battle against Chorin and published the volume Makel Noam (Vienna 1799). Here is the title page of the book:
Chorin responded with another book on the subject, Shiryon Kaskasim (Prague, 1800).

Grishaber was a fairly well known rabbi, and in recent years Torah journals have begun to print his unpublished writings. The problem that Grishaber was up against was that even with the many rabbis who wrote haskamot for his book, the great R. Yehezkel Landau had ruled differently. How could he destroy Chorin’s argument, convince the people that he was right, and most importantly, spare Jews from eating non-kosher when the recently deceased gadol ha-dor stood in his way?

Even before Chorin published his book, Grishaber had been on a crusade to have sturgeon declared as non-kosher. As part of this battle Grishaber took a fateful step which I have no doubt was done le-shem shamayim, but which from our perspective must be regarded as reprehensible.

In his effort to stop the eating of sturgeon, which he firmly believed was a terrible sin, Grishaber declared that R. Yehezkel sent him a letter retracting his decision and asking him to forward this letter to the rabbi of Temesvar, to whom he originally gave his lenient opinion. Grishaber states that the original letter of R. Yehezkel, which he received and sent on to the other rabbi, was lost in the mail.[13] He also writes that he misplaced the copy he made of R. Yehezkel’s original letter to him. This is all very fishy. Not surprisingly, R. Yehezkel’s son, R. Samuel, and R. Yehezkel’s leading student, R. Eleazar Fleckeles, rejected Grishaber’s testimony. They declared that he never received such a letter. In other words, he was lying when he stated that the Noda bi-Yehudah had retracted his opinion.

These are strong words, but it is hard to read what R. Samuel and R. Fleckeles write and still have any doubts that Grishaber was engaging in a fraud – although as R. Samuel states, Grishaber no doubt believed that in the effort to stop people from eating non-kosher even this was permissible. Here are some of R. Samuel’s words (Noda bi-Yehudah, Yoreh Deah, tinyana, no. 29), which are very interesting in that he keeps the standard respectful phrases at the same time that he is telling Grishaber that he is a liar.

ימחול לי מעלתו שדבר זה הוא שקר מוחלט . . .ופשיטא שאין מעלתו נאמן בזה מאחר שאין בידו גוף האגרת ומרחיק עדותו לומר ששלחו להרב מטו”ו ונאבד . . . כל זה הוא למופת שכבוד מעלתו שקר ענה בשם אאמ”ו הגאון ז”ל. לכן טוב ויפה שכבוד מעלתו ישתוק מזה ומצוה שלא לאמר דבר שאינו נשמע ושאין להאמין, ודבר פשוט הוא שאין מעלתו נאמן לאסור . . . ואני דן את מעלתו לכף זכות שכוונתו בזה לש”ש אחר שלפי טעותו שבעיניו נראה הדג זה לאיסור ויודע בעצמו שלא יהיה דבריו נשמעין נגד פסק של אאמ”ו הגאון ז”ל לכך התחכם לומר שאאמ”ו הדר ביה.

Grishaber also had to deal with the fact that in Turkey the Jews ate sturgeon. To this he replied that one could not rely on the Turkish Jews since many of them were still followers of Shabbetai Zvi. R. Samuel had no patience for this nonsensical assertion.

לא אשיב על זה כי סתם ישראל בחזקת כשרות ולמה זה יוציא דילטורין על ישראל לומר כל מי שאוכל דבר הנראה למעלתו לאיסור הוא מודח מעדת ישראל. ולמה לא מיחו בהם הרבנים שם שהם גדולי ישראל. אין זה כי אם רוח יתירא.
In a second letter to Grishaber (ibid., no. 30), R. Samuel shows that his patience is at an end:

ואני מזהירו שלא ילמד לשונו שקר ומרה תהי’ באחרונה אם יתגלה קלונו ברבים.
Yet interestingly enough, in keeping with the rabbinic tradition of respectful writing he ends his second letter with כ”ד אוהבו.

Fleckeles also speaks harshly (Teshuvah me-Ahavah, vol. 2, Yoreh Deah no. 329), and this comes after beginning his letter with all the customary rabbinic introductory words of praise.

עמו הסליחה לישנא דחוצפות היא זו נגד רבן של ישראל ובדבר שכבר הורה זקן וחלה הוראתו קרוב לעשרי’ שנה . . . ומה שהעיר שרבינו הגדול נ”ע כתב אליו שחוזר מהוראה זו ובקש ממנו להודיע הדבר להרב דק”ק טעמישוואר והמכתב ההוא נאבד ממנו ומכל אדם שארי לי’ מארי מדבר שקר תרחק כתיב ומוציא לעז על אותו צדיק יסוד עולם איך יכתוב אליו שהוא בריחוק מקום ולא יכתוב באתרא דאוכלין אותו הדג על פיו ועוד אלמלא נגנז ספרי יחזקאל הי’ יכול לומר מה שלבו חפץ אבל ספריו כאן וקבע הדברים להלכה ולמעשה מיד ולדורות.

Although there were some who supported R. Yehezkel, this remained a minority opinion. By now no one is in dispute about this matter. Yet I wonder if any readers recall eating sturgeon in the United States. I ask because there was a time when sturgeon was regarded as kosher in this country. Here is a page from the list of kosher fish published by Agudas ha-Rabbonim in Ha-Pardes, April 1933. This advertisement for delicious sturgeon appeared in subsequent issues of Ha-Pardes.

Note that swordfish is also on the list, proof that Orthodox Jews ate this as well. I won’t say much more about this since I know that Dr. Ari Zivotofsky has a lengthy article on the topic about to appear in the Israeli-journal BDD (Bekhol Derakhekha Daehu). Let me just mention the following two points, if only to disabuse people of the notion that it was only the Conservatives who permitted swordfish.

1. The Chief Rabbinate of Israel declared swordfish to be kosher, and in a 1960 responsum R. Isser Yehudah Unterman defended this ruling. In response to R. Moshe Tendler’s objection, Unterman reaffirmed its kosher status.[14] It is likely that the widespread assumption that swordfish is not kosher can be traced to Tendler’s successful efforts in this regard. Today, who even remembers the that swordfish used to be kosher?

2. There was a great rav in Boston named Mordechai Savitsky. To a certain extent he was an adversary of the Rav and was one those tragic figures in American Orthodoxy. His Torah knowledge was the equal of any of the outstanding Roshei Yeshiva who became so popular, but he was never able to find his place. He publicly declared – and in his Shabbat ha-Gadol derashah no less – that swordfish is kosher.

These two points are enough to show that the issue of swordfish is anything but settled, and is certainly not an Orthodox-Conservative issue. Zivotofsky’s article will be quite illuminating in this regard.

Notes:
[1] See The Limits of Orthodox Theology, Preface.
[2] Mehkerei Talmud 2 (1993), 255 n. 196.
[3]”R. Yaakov Lipshitz and Heter Mechirah,” the Seforim blog (October 11, 2007), available here.
[4] In an effort to keep far away from non-Jewish names, many people who are named מיכאל spell it as Michoel. I have even seen Mecheol. Certainly, no one today in the haredi world who has the name משה would write his English name as Moses, as is found on R. Moshe Feinstein’s stationery.
[5] See here at note 8.
[6] See Bazalel Naor, Post-Sabbatian Sabbatianism: Study of an Underground Messianic Movement (Spring Valley, 1999), 38; Marvin Heller, “David ben Aryeh Leib of Lida and his Migdal David: Accusations of Plagiarism in Eighteenth Century Amsterdam,” Shofar 19 (Winter 2001): 117-128.
[7] Yet can they live with a well-known contemporary rabbi who not only falsified a book he worked on, but has ignored a series of summons to a beit din? See here (and here) for more. Since the censorship and forgery he engaged in are directed against Chabad, it is possible that in his mind he has done no wrong. He probably also assumes that a Chabad beit din is not valid, and therefore he can ignore it.
[8] “Leshonot ha-Meiri she-Nikhtevu li-Teshuvat ha-Minim,” Tzefunot 1 (5749): 65-72.
[9] In my forthcoming book, Studies in Maimonides and His Interpreters (University of Scranton, 2008), I give examples of some of the problems. The book should appear in another few months.
[10] “Le-Mashmaut ha-Bituyim: Kiddush Hodesh, Birkat Levanah, Kiddush Levanah,” Sidra 22 (2007): 185-200.
[11] For other forgeries in Auerbach’s Eshkol, see Louis Ginzberg, Perushim ve-Hiddushim Birushalmi, vol. 1, Introduction, p. 84, and vol. 4, p. 6. I owe these references to the anonymous scholar.
[12] Noda bi-Yehudah, Yoreh Deah, tinyana, no. 28.
[13] See Yisrael Natan Heschel, “Mismakhim Nosafim le-Folmos Dag ha-Stirel bi-Shenat 5558,” Beit Aharon ve-Yisrael (Sivan-Tamuz 5755): 109.
[14] See Shevet mi-Yehudah, vol. 2, Yoreh Deah no. 5.



The Agunah Problem, Part 1; Incarceration and Free Speech

The Agunah Problem, Part 1; Incarceration and Free Speech
Marc B. Shapiro

1. There has been a lot of discussion recently about the International Beit Din and its rulings allowing certain marriages to be voided, thus freeing women from being agunot. As is to be expected, this beit din has been subject to strong attacks, even of a personal nature, despite the fact that the members of the beit din are recognized talmidei hakhamim. These dayanim are intent on keeping everything above board and have published the reasoning behind their rulings, thus giving opponents the opportunity to engage in halakhic argumentation.
From what I have read, the International Beit Din has three approaches to freeing agunot. One is annul the marriage based on mekah taut, i.e., there was some problem with the husband that would have prevented the wife from marrying him had she known of it. This is a perfectly valid mechanism that has been used by many poskim, such as R. Zvi Pesah Frank, R. Moshe Feinstein, and R. Avraham Shapiro. Although one can, of course, criticize the application of mekah taut to a particular case, the mechanism itself is part of standard halakhic operating procedure and the International Beit Din is well within its rights to use mekah taut when possible. 

The second approach is to find a problem in the marriage ceremony itself, meaning that the marriage never took place. For example, one can show that there were no proper witnesses to the marriage. Here again, one can disagree with particular rulings, but not with the basic approach.

The third approach is that of get zikui, which in the current context means that the beit din issues a divorce to the woman on behalf of the man, even if the man has not approved of this and even if is against his will.[1] While there has been a good deal of discussion of this approach, I can’t find on the International Beit Din’s website that any marriage has actually been dissolved by using this mechanism. Unlike the other two approaches, there is little precedent for use of a get zikui, which means that its chances of being generally accepted are nil.
The use of a get zikui is actually suggested by R. Jehiel Jacob Weinberg, Seridei Esh, vol. 3, no. 25. In fact, R. Weinberg’s responsum is the most detailed discussion of get zikui but surprisingly it is not included on the International Beit Din’s website. It must be noted, however, that R. Weinberg is only prepared to suggest a get zikui if the husband would want the get to be given. However, in the contemporary agunah situation the problem is that the husbands do not want to give the wives a get, and concerning these cases R. Weinberg writes: נפל היסוד של כתיבת גט מטעם זכי’
Is there another possible approach? How about a heter meah rabbanim for a married woman if she can’t get a get? I know you are thinking that this is crazy, but look at the following page, which comes from the medieval work Etz Hayyim by R. Jacob Hazan.[2] 
As you can see from the very end of the page, it states that the rabbis required a man to give a get if he contracted a marriage באיסור, which in this case means he was already committed to marry someone else. Then it says that if this man disappeared the woman can be freed with a heter meah rabbanim (actually, it says ish, not rabbanim, but I don’t want to get into that now). This is a very radical position, that a woman can be freed by a heter meah rabbanim, and it is attested to nowhere else. Not surprisingly, R. Israel Brodie, the editor of Etz Hayyim,[3] calls attention to this unusual halakhic position. R. Shlomo Yosef Zevin also refers to this novel idea.[4]
But are Rabbis Brodie and Zevin correct? Israel Moshe Ta-Shma and Shlomo Zalman Havlin say no, and see this as a serious mistake. According to them, the last case discussed in Etz Hayyim has nothing to do with the man who married באיסור but refers back to a case mentioned earlier on the page of a man who was only committed to marry a woman. If this man then disappears, מתירין הבחורה במאה איש. In other words, the woman is released from any obligation to marry the missing man, but this has nothing to do with a woman already married. I will let the readers decide for themselves who is correct.[5]
As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce.
Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]:
ברוך ה’ א-להי ישראל אשר הזריח לנו את המאור הגדול הזה אשר במבטו החודר פלש למעמקי הדורות וצפה גם את דורנו הפרוץ לבשתינו ולמגנת לבבנו, אוי לעינים שכך רואות ואוי לאזנים שכך שומעות, ואלו ראו שאר חכמי הדורות את דורנו היו חותמים על פסקו של רבנו בשתי ידים. כי המציאות הוכיחה צדקת רבנו, שכל התובעת ג”פ בימינו וטוענת מאיס עלאי, לא רק עיניה נתנה באחר אלא היא כבר בחיק האחר או האחרים וחביטא קמייהו כמברכתא, ולפיכך מצוה לכוף את הבעל המתעקש בכל כפיה אפשרית כדי להפריד בין הדבקים ויפה שעה אחת קודם.
However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.
I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces. 

I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have.

Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. In Keneset ha-Gedolah, Even ha-Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes:
ובעל משפט צדק ח”א סי’ נ”ט כתב דאפי’ רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי’ לו’ לו שחייב להוציא
Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so. And if we are wrong, and he really does kill her? I guess the reply would be that this isn’t anything we could have anticipated even if we saw the knife in his hand. This example shows how some poskim from prior generations made it extremely difficult for women to receive a divorce.
Let me give a few examples from more recent years. In 1967 the Supreme Rabbinic Court, consisting of Rabbis Yitzhak Nissim, Betzalel Zolty, and Yosef Shalom Elyashiv, concluded as follows.[10]
כשם שאין כופין בעל לגרש את אשתו בגלל טענת מאיס עלי, כך אין מחייבין את הבעל לגרש עקב טענה זו
This approach, which repeats itself again and again, completely undermines the assumption so many have that a man is obligated to give his wife a get when she no longer wishes to be married to him.
Look again at the conclusion of Rabbis Nissim, Zolty and Elyashiv. It couldn’t be any clearer that this woman is not an agunah. Their conclusion also contradicts the definition of agunah provided by JOFA (see here p. 22).

AGUNAH (pl: AGUNOT) A married woman who may not remarry because the death of her husband has not been verified or because (for whatever reason) she is unable to obtain a get from her husband.

It is simply not true that a woman unable to obtain a get from her husband “for whatever reason” is an agunah. I wish it were different, and I wish Maimonides’ ruling carried the day. But that is not the case, which means that an agunah has to be defined as one whose husband refuses to issue a get after ordered to do so by a beit din.
R. Zvi Hirsch Grodzinski, perhaps the leading talmudist and halakhist in the United States in the early years of the twentieth century, discusses a case where a woman committed adultery (or only claimed to have done so; the matter is not clear, but for this post I am assuming she actually did commit adultery). She then wished to get divorced from her husband.[11] She must have had some connection to Judaism as she requested that her husband give her a get. I think most people would assume that in such a case, where the woman will no longer be living with her husband, that it is essential that the husband give her a get so that she is no longer committing adultery. With the get she can repent and move on with her life. Hopefully, she will be able to find another husband and live as pious Jew.
Yet just because most of us might intuitively feel this way, this does not mean all halakhists have to agree. R. Grodzinski concludes that the husband cannot be forced to give the get. To use today’s popular language, this meant that he was allowed to keep her as an agunah for the rest of her life. Of course, R. Grodzinski would deny that the woman was an agunah. Despite the woman’s adultery, I think most people will still be troubled reading the following words from R. Grodzinski, from which we see that he saw no problem in condemning her to live the rest of her life without receiving a get.
כ”ש בנ”ד שנאסרה עליו ע”י זנות דאין כופין אותו לגרשה בגט, כיון שהיא נתנה אצבע בין שיניה, וגרמה לעצמה במעשיה הרעים והוא לא עשה און, ולמה נכוף אותו ליתן לה גט, לא תבעל לו ותוצרר אלמנות חיות כל ימיה, הלא אינה מצווה על פו”ר, וכי בשביל שהיא הולכת אחרי שרירות לבה וזנתה תחתיו נכוף אותו לגרשה
I don’t think you need to be a member of JOFA or Open Orthodox to be upset by what R. Grodzinski writes, as it probably closed off any chance of repentance on the part of the woman. He also views the withholding of the get as a suitable form of punishment for the woman. Not being obligated in the commandment to procreate, she can be kept a “living widow”.[12]
For another noteworthy example, here is the conclusion of a 1953 Jerusalem Beit Din decision, by the dayanim R. Jacob Ades, R. Bezalel Zolty, and R. Yosef Shalom Elyashiv:[13]
החשש כי האשה תצא לתרבות רעה אם הבעל לא יתן לה גט, אינו משמש יסוד לחייב את הבעל לתת לה גט
This decision from the Jerusalem Beit Din has another passage that is very troubling to me. I find it hard to believe that any Modern Orthodox beit din could conclude in this fashion, and it is precisely attitudes such as this that convinced women that the rabbinic courts in Israel were stacked against them.[14]
הא דברועה זונות יש לחייבו לתת לה גט, היינו היכא שהאשה היתה רוצה לחיות אתו, אלמלא שהבעל הוא רועה זונות, במקרה זה יש מקום לחייבו לגרשה כשהיא דורשת גט, משום שרועה זונות יאבד הון וסופו לא יהיה בידו לפרנסה, וגם משום שעצם היותו רועה זונות נוגע לה שהוא גורע מעונתה, וגם יש חשש של סכנה לחיות אתו, אבל במקרה שהאשה מורדת בבעלה ולא רוצה לחיות אתו בגלל איזו סבה שהיא, ואחרי זה נהיה הבעל רועה זונות אף שיש עבירה בידו, מכל מקום אין לחייבו משום זה לתת לה גט, כיון שהיא מורדת בו הרי הוא פטור ממזונותיה ושוב אין החשש שרועה זונות יאבד הון ולא יהיה בידו לפרנסה, וגם אין הטעם שברועה זונות הדבר נוגע לה שהוא גורע מעונתה וגם יש חשש סכנה לחיות אתו, דהלא היא מורדת בו ולא רוצה בכלל לחיות אתו.
What is a woman supposed to do in a case like this? After learning that her husband frequented prostitutes she had even more reason not to want to return to him, and yet the beit din held that in such a case the husband did not have to give her a get since her initial reason for wanting to be divorced was something else. Again we see that a man can, if he chooses, prevent his wife from being free.
Also of interest are the three reasons the court suggests why a woman would not be happy if her husband was going to prostitutes: 1. He will be spending their money, 2. He will be using them as his sexual outlet and will not want to sleep with his wife, 3. He could pass on a disease to her.
While it is true that a wife’s anger will include reasons 1 and 3, these are not the main reasons she will be upset. For example, the husband could be as rich as a former New York governor and have used protection, yet the wife will still be devastated for the simple reason that his actions were a terrible breach of trust. More than anything else, modern marriages are based on trust. As for reason 2, it is hard to imagine that there is any modern woman who, if she discovered that her husband was going to prostitutes, would want to be divorced because of this reason.
Where did the dayanim get these three reasons, as surprisingly, they don’t tell us? I found reason 1 cited in the Beit Yosef, Even ha-Ezer 154 (towards the end, s.v. מצאתי כתוב בשם ספר אגודה). It originates in R. Alexander Susslein Ha-Kohen’s Sefer Agudah: Yevamot, no. 77.[15] Reasons 2 and 3 are found in the Arukh ha-Shulhan, Even ha-Ezer 154:16.[16]
These reasons undoubtedly reflect a different understanding of marriage, one which does not see the modern romantic notion of trust as the centerpiece of a marriage. Since people’s psychology has changed over the centuries, I don’t think that the reasons offered by medieval authorities operating in a completely different environment can determine what modern women will regard as “deal-breakers” when it comes to marriage. If a modern woman has different expectations of what marriage is than what people had years ago, I would think that this must be taken into account by a beit din in determining what situations require ordering the husband to give a get.
In fact, Sefer Agudah cites another reason why the court compels a husband visiting prostitutes to divorce his wife.
פעם אחת בא מעשה לידי לאה טוענת על ראובן שהיה רועה זונות והוא כופר. ופסקתי שאם תביא עדים שהוא כן יוציא ויתן כתובה. איבעית אימא קרא, איבעית אימא גמרא, איבעית אימא סברא . . . ואיבעית אימא סברא דגרע מכל הנהו דפרק המדיר.
In the final words just quoted (and underlined), Sefer Agudah is referring to this Mishnah in Ketubot 77a:

ואלו שכופין אותו להוציא מוכה שחין ובעל פוליפוס והמקמץ והמצרף נחושת והבורסי בין שהיו עד שלא נישאו ובין משנישאו נולדו ועל כולן אמר רבי מאיר אע”פ שהתנה עמה יכולה היא שתאמר סבורה הייתי שאני יכולה לקבל ועכשיו איני יכולה לקבל. 

The following are compelled to divorce [their wives]: A man who is afflicted with boils, or has a polypus, or gathers [objectionable matter] or is a coppersmith or a tanner, whether they were [in such conditions or positions] before they married or whether they arose after they had married and concerning all these R. Meir said: Although the man made a condition with her [that she acquiesces in his defects] she may nevertheless plead, “I thought I could endure him, but now I cannot endure him.”

This final reason given by Sefer Agudah is based on sevara and not on a rabbinic text.[17] I don’t know why it was not cited by the dayanim, but it supports the point I made that the beit din need not be bound by examples given in the Talmud or other rabbinic sources. Rather, it can evaluate the current psychology of women and how they regard marriage.

For another example of how different current understandings are from what they used to be, look at this responsum of R. Zvi Hirsch Ashkenazi, Hakham Zvi, no. 133.
It deals with a man who committed adultery with a married woman, and his wife therefore wishes to divorce him. In such a case, contemporary Orthodox Jews of all persuasions would agree with the general view in society, that if the wife can forgive her husband and remain married, then it is no one else’s business what goes on in their lives. However, contemporary Orthodox Jews would also agree that if the betrayal is so devastating that the wife will never be able to trust her husband again, and she wants a divorce, then the husband should be required to give the divorce. To paraphrase what the Sefer Agudah said, this is certainly on the level of the things for which the Mishnah in Ketubot requires a husband to grant his wife if she requests if.
Yet the Hakham Zvi refuses to require the man to issue the divorce. One of the things he says is that even the Sefer Agudah would agree that in order to force a divorce the husband has to have been given prior warning not to visit prostitutes. In the case the Hakham Zvi was asked about, he says that there is another reason not to require the get, and that is that the man claims that he wishes to repent. So here we have a case where a man commits adultery, his wife cannot accept this and requests a divorce, and the man refuses and says he will repent. Today people would say that this woman is an agunah, as she is trapped in a marriage she doesn’t want to be in with a husband who cheated on her. Yet the Hakham Zvi rules in favor of the man that no divorce is required.
One can find numerous examples where poskim rule similarly. Here, for instance, is a decision of the Tel Aviv Beit Din.[18]
I think people will be shocked to learn that a woman who wants to divorce her husband because he went to a prostitute is being told by the beit din that she must stay with him if he promises not to do it again. But this only illustrates that the so-called agunah problem is inherent to the halakhic system, which according to the dominant interpretation does not recognize that a woman should be able to exit a marriage if she feels she can no longer live with her husband. There are literally hundreds of examples in the responsa literature and beit din proceedings where a woman is told that even though she wants to be divorced, there is no obligation on her husband to give her a get. Isn’t this where poskim must put their efforts to see if changes can be made? What a woman will tolerate today is not necessarily the same thing as what the Sages and earlier poskim assumed, and this is a point that was already made by halakhic authorities in prior generations.[19]
To further illustrate my point, R. Joseph Karo states that even if a husband is beating his wife he can’t be forced to divorce her.[20] She will obviously live apart from him, but R. Karo does not accept the view of some earlier authorities that the husband can be forced to issue her a divorce. This means that the woman is what we would today call an agunah, but the problem we are facing is not just about an evil man but arises from the halakhah itself. As we have just seen, according to R. Karo it is the halakhah that prevents us from forcing a husband to divorce his wife, even if he beats her.
In this case, R. Moses Isserles strongly rejects R. Karo’s opinion and states that we can force a man beating his wife to divorce her.[21] The passage I have underlined is of particular significance regarding the point I made previously.[22]
ואיני רואה בזב דבריו כלל דכדאי הם הגאונים לסמוך עליהם כל שכן שהרמב”ן ומהר”מ הסכימו בתשובותיהן בענין הכאת אשתו והביאו ראיות ברורות לדבריהם גם הסברא מסכמת עמהן ומה שלא הוזכרו בדברי הפוסקים אפשר לומר שהיה פשוט בעיניהם וקל וחומר הוא מהאומר איני זן וכו’
In deciding which opinion to follow, that of R. Karo or R. Isserles, I think that a point made by R. Jehiel Jacob Weinberg is relevant. He states that if there is a dispute among earlier halakhic authorities, we should reject the view that will bring the Torah into disrepute in people’s eyes.[23]
ואגלה להדר”ג [הגרא”י אונטרמן] מה שבלבי: שמקום שיש מחלוקת הראשונים צריכים הרבנים להכריע נגד אותה הדעה, שהיא רחוקה מדעת הבריות וגורמת לזלזול וללעג נגד תוה”ק

Can anyone deny that in the dispute between R. Karo and R. Isserles, the sort of consideration R. Weinberg was referring to would force dayanim, even Sephardic dayanim, to decide in accord with R. Isserles? In today’s day and age, it would be simply incomprehensible to people that a man who regularly beats his wife cannot be forced to give her a get.
There is another noteworthy decision given by the Supreme Rabbinic Court, again consisting of Rabbis Yitzhak Nissim, Bezalel Zolty, and Yosef Shalom Elyashiv.[24] The case was that a married man left his first wife and married another wife. The problem was that he never divorced the first wife, making him a bigamist. Furthermore, he refused to give his first wife a get. The woman therefore turned to the Beit Din asking them to force him to do so. The conclusion of the Beit Din was that while in this case, as opposed to the ones we saw earlier, the man was indeed obligated to divorce his wife, nevertheless the Beit Din could not force him to do so. Since the Beit Din ruled that he was obligated to give the get, his not doing so would make the woman an agunah in the eyes of the court. But since the Beit Din felt that it was unable to force the man to issue the get, who knows how long (maybe her entire life) the woman was forced to remain an agunah. Unfortunately for the woman, R. Shaul Yisraeli, also a member of the Supreme Rabbinic Court, was not one of the dayanim in this case, since he wrote to R. Elyashiv arguing that the court should indeed force the husband to give the get.[25]
Since I mentioned R. Weinberg earlier in this post, take a look at this responsum from Seridei Esh, vol. 3, no. 29.
R. Weinberg was asked about a man who was sent to jail for sexual abuse of young girls. Understandably, his wife wanted a divorce. The rabbi didn’t know what to do and therefore wrote to R. Weinberg. He mentions that he never had to deal with a case of sexual abuse and doesn’t know how to relate to it from a Jewish law perspective. He also assumes that there was no actual sexual relations but only fondling.
R. Weinberg, relying on the Hakham Zvi, states that the husband cannot be forced to divorce his wife, since he was never warned and there was no testimony in a beit din. He also says that one cannot rely on testimony given in a secular court, and makes the valid point that during that time, the Nazi era, there was a great deal of anti-Semitism and pleasure in making the Jews look bad.
None of this could have been of much comfort to the woman. We have no idea about her relationship with her husband. She might have already suspected him of being a pervert, or when he was arrested it might have clarified certain things that she wondered about. She might have confronted him after the arrest and seeing his reaction to her questions she knew he was guilty. Whatever the case, she no longer wished to remain married to someone she believed to be a sexual abuser. R. Weinberg was as open-minded a posek as one could imagine, yet even he was of the opinion that the husband could not be compelled to divorce his wife.
Today, if someone accused of sexual abuse refused to issue his wife a get, rabbis in the United States would call for protests in front of his house. Yet R. Weinberg does not see this as warranted. I think one of the most difficult things for people to grasp in his responsum, and in that of the Hakham Zvi, is the need for the husband to be warned. We are not talking about sentencing him in a beit din, where warning is a technical requirement, but whether or not the woman wants to live with him any more. In the two cases we have just seen, the issues of concern to the wives are one man’s visits to a prostitute and the other’s sexual abuse of children. Neither wife cared if her husband was “warned” in beit din since the offense is the same to her either before or after the “warning”.
Nevertheless, the notion that the husband has to be warned is found elsewhere as well. For example, regarding a husband who beats his wife, R. Moses Isserles, Shulhan Arukh, Even ha-Ezer 154:3, states that according to some such a man can be forced to give his wife a get. The Vilna Gaon explains, in words that lead to a liberal understanding of when a man can be forced to divorce his wife:
יש אומרים שכופין כו’: שאפילו על שאר דברים שאין לה צער כל כך כגון המדיר שלא תלך לבית אביה או לבית האבל כו’ [כתובות עא ע”ב] או שלא תשאל נפה וכברה כו’ [שם, עב ע”א], כל שכן במצערה בגופה. תשובת הרמב”ן סימן ק”ב.
Yet after stating that some say that a man who beats his wife can be forced to divorce her (an opinion he himself held, as we saw earlier in the quotation from Darkhei Moshe [26]), R. Isserles adds that a prior warning is required: ובלבד שמתרין בו תחילה פעם אחת או שתים.

Now that we have seen some of the real halakhic difficulties that stand at the center of the so-called agunah problem, in the next post I will offer a simple suggestion that I think can solve at least some of the cases.

2. Someone who read my earlier posts that discussed various punishments ordered by Jewish courts asked me about a quotation from R. Shlomo Yaffe, dean of the Institute of American and Talmudic Law, which offers a different perspective. See here. Before even getting to the particular quotation, let me say that I have real problems with some of what was said (or at least reported to have been said) at the recent conference on Jewish law reported on the link just given. For example, Rabbi Yaffe was asked, “If there were no First Amendment would we still have the freedom of speech?” The only correct answer has to be that without the First Amendment our freedom of speech will be endangered, and it could even become illegal to speak publicly about certain laws in the Torah (e.g., homosexuality), as this could be categorized as “hate speech”. But instead, Rabbi Yaffe replied: “Absolutely . . . We know that God had freedom of speech. He spoke and the world came into being. . . . We have free will and the ability to express ourselves.” How does this bit of darshanut answer a serious question about the importance of the First Amendment?
Professor Jeremy Waldron stated at the conference, “People have a right to be protected from vicious defamations upon them on account of their religion. So if somebody says, ‘All Muslims are terrorists,’ we believe [Muslims] have a right to be protected against that defamation.”[27] This is exactly why we need a First Amendment and why free speech must be protected. If it became illegal for some idiot to say, “All Muslims are terrorists,” then the next thing would be punishing people for saying that “Muslims are more likely to support terrorism than adherents of other religions,” and bans on the drawing of Muhammad’s picture and insulting the Prophet would not be far behind because after all, these are viewed by Muslims as defamations of their religion. (Muslims in Europe have already demanded that those insulting Muhammad not be protected by free speech laws.)
In other words, giving an inch in this matter would open up the floodgates and would be the end of free speech in America. As I already mentioned, this would also be a big problem for the traditional Jewish community, since it is only the constitutional guarantee of free speech that prevents “progressive” groups from legislating against “hate speech” found in religious communities. Based on the quote from Waldron, I would assume that he is a supporter of the “speech codes” that at one time were so popular at universities, until people began to realize the stifling effect they actually had on free speech. For those who are having trouble remembering what they learnt so many years ago: The First Amendment was created precisely in order to protect unpopular speech.
The particular quote from Rabbi Yaffe that I was asked about is the following: “In general, Jewish law and tradition are extremely opposed to incarceration as fundamentally immoral unless it is to protect someone from inflicting real harm on another human being.” What this means is that incarceration is only designed to protect the innocent, but Jewish law and tradition does not recognize incarceration as a means of punishment. This statement is simply false. Let us remember that incarceration must be seen as an improvement over the physical punishments I have detailed in earlier posts. Given the choice between lashing people and mutilating them, certainly incarceration is preferable. (See also what I wrote here.) As for incarceration itself, the Rambam states as follows in Mishneh Torah, Hilkhot Sanhedrin 24:9:
יש לכפות ידיים ורגליים ולאסור בבית האסורין
What this means is that a judge may bind a prisoner’s hands and feet and may imprison him. Punishment is one of the reasons that this is done, as Maimonides explains ibid. 24:10. Although there is nothing in the Torah about imprisonment, it was used as a punishment throughout Jewish history.[28] Simhah Assaf, who writes a good deal about Jewish prisons in Ha-Onshin Aharei Hatimat ha-Talmud, pp. 25ff, informs us that such prisons were found in Babylonia, Spain, Italy, Moravia, Poland, and Lithuania. One can also add Hungary and Bohemia to this list. According to Assaf, it is only in France and Germany that we don’t find Jewish prisons.[29] In addition to actual prisons, we also find something else: 

A symbolic imprisonment, which served as a means for expiation as well as one of humiliation and embarrassment, consisted of shackling a suspected murderer, for example, during a service. He was to have his hands as well as his body chained. This was apparently a tradition received from R. Judah the Pious.[30]

[1] See R. J. David Bleich’s discussion of get zikui in Tradition 35:4 (2001), available here. See also the responsum of R. Solomon David Kahane in Sefer ha-Yovel Karnot Tzaddik (Kefar Habad, 1992), pp. 253ff. For the Safed beit din’s decision to issue a get to a woman whose husband was in a vegetative state, see here, and see the beit din’s defense of its decision here. An entire book was published in opposition to this decision; see here.
[2] Vol. 2, p. 236.
[3] Vol. 3, p. xi.
[4] See Sinai 60 (1967), p. 319.
[5] See Havlin in Ha-Ma’yan (Tevet 5728), pp. 33-34 n. 14.
[6] In previous posts I have cited numerous examples that show that the notion that men and women are equal is also a modern idea. The standard traditional view was that a woman is secondary to her husband and under his authority. I mention this here only because I recently found a very interesting formulation that is relevant to what we will be discussing. In R. Hayyim Aryeh Leib ben Joseph Hayyim, Sha’ar Bat Rabim (Warsaw, 1900), parashat Tazria, p. 24a-b, he explains why a woman, who is “enslaved to her husband as a slave,” does not choose to run away like other slaves do.
והוא ימשול בך: לעבוד עבודתו. ואעפ”י שהיא משועבדת לבעל כעבד ודרך העבד לברוח מאדונו כדי שלא להשתעבד מ”מ גזר ה’ עלי’ שתחפוץ להשתעבד לבעלה כשפחה מדה כנגד מדה כי חוה נתנה גם לבעלה ויאכל במצותה לכן נענשה שלא תהיה היא עוד מצוה עליו אלא הוא יצוה עלי’ כל רצונו כן כתב רמב”ן.

[7] Mishneh Torah, Hilkhot Ishut 14:8.
[8] Sefer Nashim, vol. 1, pp. 306-307.
[9] See Shulhan Arukh, Even ha-Ezer 77:2.
[10] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol.  7, p. 3 (emphasis in original).
[11] Ha-Measef 9 (5664), nos. 1, 24.
[12] Ha-Measef 9 (5664), p. 1b. Many of his words are taken from She’elot u-Teshuvot ha-Rosh 43:8.
[13] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 1, p. 139. R. Eliezer Waldenberg had a different approach. See Tzitz Eliezer, vol. 4, p. 109:
מכל האמור יש כר נרחב לדון בדבר כפיה לגרש במקום שישנו בטענת המאיס עלי אמתלא מבוררת, ובית הדין רואה צורך השעה לכוף את הבעל לגרש כדי שלא תצא האשה לתרבות רעה.
[14] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 1, p. 141. A decision directly opposed to this was given in 1979 by the Supreme Rabbinical Court. The dayanim were R. Mordechai Eliyahu, R. Joseph Kafih, and R. Shaul Yisraeli. See Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 12, p. 25:
אפילו אם נעשה “רועה זונות” לאחר שאשתו עזבה אותו אין לחייבה לחזור ולחיות אמו.

[15] The Sefer Agudah’s ruling is cited in R. Moses Isserles, Shulhan Arukh, Even ha-Ezer 154:1. However, R. Isserles does not provide the Sefer Agudah’s reason, only his conclusion that a man who visits prostitutes can be forced to divorce his wife.
[16] It appears that the Arukh ha-Shulhan derived reason 2 from a formulation in the Sefer Agudah. However, R. Yosef Goldberg argues that the Arukh ha-Shulhan is mistaken and that the Sefer Agudah cannot be seen as a source for this reason. See Goldberg, “Teviat Ishah le-Hayev et Ba’alah be-Get,” Zekhor le-Avraham  (2000), vol. 2, pp. 669ff.
[17] See also R. Simeon ben Zemah Durah, She’elot u-Teshuvot Tashbetz, vol. 2, no. 8:
ואפילו לכוף אותו להוציא יש לדון מקל וחומר דבעל פוליפוס, דהשתא מפני ריח הפה כופין, מפני צער תדיר שהוא מר ממות לא כל שכן.

[18] Piskei Din shel Batei ha-Din ha-Rabaniyim be-Yisrael, vol. 8, p. 254.
[19] For a detailed discussion of the matter, see R. Avishai Teherani, Amudei Mishpat, vol. 1, Even ha-Ezer, no. 12. R. Teherani’s own conclusion is as follows:
המכה את אשתו, ואין סכנת נפשות לאשה, אין כופין אותו להוציא, שיש לחוש שלא נכשל בגט מעושה, אכן אם יש לאשה סכנת נפשות אמיתית, כופין אותו לגרשה בטרם יהרגנה, ויש לדיין ליתן עיניו בזה הרבה, כי כבר היו מעשים מעולם [!] ברצח האשה
(emphasis added). This is hardly a position that will find a sympathetic ear among most contemporary Orthodox Jews. R. Hanan Aflalo, Asher Hanan, vols. 3-4, no. 77, adopts an entirely different tone. With regard to the matter of a woman who wants a divorce because her husband visited prostitutes, unlike the decisions already mentioned, R Aflalo shows a real understanding of how a modern woman relates to this sort of thing. He writes as follows (p. 421):  
מאסה בו על עצם המחשבה שגופו היה דבק בגופן של נשים אחרות במעשה הניאוף והטינוף שבו, ובכך נגעלת מעצם המחשבה לכך לחזור עמו לחיי אישות ולשלום בית. ובאמת שמילים וטענות אלו יש בהם ממש.
R. Uriel Lavi, av beit din of the Safed beit din that issued the controversial get to a woman whose husband was in a vegetative state (see note 1), and who has been villified in the haredi world and through their pressure kept off the Supreme Rabbinic Court (see here), has the same sympathetic approach as R. Aflalo. See his Ateret Devorah, vol. 2, p. 644:
חיוב הבעל בגט הוא מפני המאיסות שבמעשיו. אמנם בעלמא באומרת מאיס עלי אין כופין גירושין, אך כשמאיסות זו היא כה חמורה ונובעת ממעשיו הנלוזים של הבעל, ואין זו בעיה חריגה של האשה, אלא מאיסות המוכרת והמקובלת בנסיבות אלו אצל כל הנשים, יש לכפות את הבעל.
It is precisely rabbis with this type of modern understanding that can provide a solution to the problem we have been discussing, as we will see in the next post.
[20] Beit Yosef, Even ha-Ezer 154 end, s.v.מצאתי בתשובת רבינו שמחה 
[21] Darkhei Moshe, Even ha-Ezer 154:21 (The text is from the Machon Yerushalayim edition which has added material from Darkhei Moshe ha-Arokh).
[22] R. Isserles also adds the following which is relevant to recent events in which a number of people were sentenced to prison for kidnapping and torturing men who refused to give a get.
נראה דטוב שלא לכופו ליתן גט אלא בדרך זה להחרימו או לתופסו בידי גוים או בשוטים שלא להכותה או שיוציא ויתן גט ובדרך זה לא מיקרי כפייה על הגט רק לקיים מה שמחוייב לעשות.
[23] Kitvei ha-Gaon Rabbi Jehiel Jacob Weinberg, vol. 1, p. 60.
[24] Piskei Din shel Batei ha-Din ha-Rabaniyim be-Yisrael, vol. 7, p. 65.
[25] Mishpetei Shaul, no. 34
[26] For a detailed discussion regarding whether the beit din can force a wife beater to divorce his wife, see R. Isaac ben Walid, Va-Yomer Yitzhak, vol. 1, no. 135.
[27] If someone said, “All NRA members are terrorists,” would Waldron think that NRA members also have a right to be protected against that defamation? And if not, why not? What possible legal distinction is there between belonging to a religion and belonging to an organization?
[28] See R. Yehoshua Inbal, Torah she-Ba’al Peh (Jerusalem, 2015), p. 215.
[29] Assaf, Ha-Onshin, p. 25.
[30] Eric Zimmer, Harmony and Discord (New York, 1970), p. 93.


Elliott Horowitz — Isaiah Berlin on Meir Berlin (Bar-Ilan) and Saul Lieberman

In a previous post at the Seforim blog, Prof. Elliott Horowitz of Bar Ilan University and co-editor of Jewish Quarterly Review, described Edmund Wilson’s unique Christmas card and some thoughts on the Talmud [see here].

This is his third contribution to the Seforim blog. We hope that you enjoy.

Isaiah Berlin on Meir Berlin (Bar-Ilan) and Saul Lieberman
Elliott Horowitz

Although there have been some fine reviews of the collection of letters by Isaiah Berlin published in England under the title Flourishing: Letters 1928-1946 (Chatto and Windus, 2004), and in the United Sates (by Cambridge University Press) under the subtitle of the British edition,[1] not much attention has been given to the candid comments included therein about some of the twentieth century’s leading rabbis and Jewish scholars. Moreover, although one of the reviewers (Ilan Stavans in Forward) commented on the “overzealousness of its editor” Henry Hardy in annotating and contextualizing Berlin’s letters “to the point of dizziness,” this zealousness is less than excessive in his annotations of the letter written by Berlin, who had recently become the first Jew to be elected to a fellowship at Oxford’s All-Souls College, from Jerusalem to his parents in London on the first day of Rosh Ha-Shana, 1934 (pp. 96-98). Among the Jerusalemites he mentions having met since arriving a week earlier are “Dr. Scholem the Kabbalist,” “Baneth of the University,” and “Meir Berlin” – all of whom are dutifully identified by Hardy. The Volozhin-born Berlin, who settled in Jerusalem in 1926 and later changed his name to Bar-Ilan, is described by Isaiah (to whom he was not related) as a “clever cunning man with an unpleasant son in law, who teaches the Yerushalmi at the University.” Hardy informs the reader that the Yerushalmi is “the Jerusalem or Palestinian Talmud,” but he has not been as “overzealous” about identifying the “unpleasant son in law,” who, as most readers of the Seforim blog have already recognized, was Saul Lieberman, who completed his MA at the Hebrew University in 1931 and married the former Judith Berlin in the following year.

In April of 1943, while serving at the British Embassy in Washington, Isaiah dryly informed his parents that “there were some serious social complications about the Sedarim this year (428).” Among those who had invited him were Chaim Weizmann (sometimes referred to as “Charles” in Berlin’s letters), the latter’s “factotum, a certain Weisgal,” and “Meyer (sic) Berlin and his daughter Judith.” Hardy explains what “Sedarim” are, identifies “[Meyer Wolf] Weisgal,” and provides the information that Judith Berlin Lieberman was “married to talmudic scholar Saul Lieberman. (428-29)” Somehow, however, he fails to connect this son-in -law of Berlin’s, who by that time had become a professor at New York’s Jewish Theological Seminary, with the “unpleasant” man who during the previous decade had taught Yerushalmi at the Hebrew University. One of the factors complicating Isaiah’s decision as to where to spend the Sedarim of 1943 was that three of his potential hosts – Meir Berlin, Vera Weizmann, and Tamar de Sola Pool (wife of Rabbi David de Sola Pool and president of Hadassah) – were “reciprocally not on speaking terms,” and thus “to go to one is to insult the other two automatically.” He spent the first Seder with the Weizmann’s and the second, which was “fantastic,” with Meyer Weisgal. Consequently, as he explained to his parents, he found himself in the position of having to “grovel to Rabbi Meyer Berlin…and Mrs Tamar de Sola Pool, great Zionist powers with whom diplomatic relations must be preserved. (430-31).”

In a subsequent letter to the British diplomat Angus Malcolm, however, Berlin referred the Mizrachi leader less charitably as “Rabbi M. Berlin of Palestine and Riverside Drive, an enemy of Weizmann and a clerical maximalist (438).” Although Weizmann (who died in 1952) and Bar-Ilan (who died three years earlier) had their differences, both now have universities named after them – in only one of which, it may be added, is the Yerushalmi taught.

Note:
[1] See, for example, Geoffrey Wheatcroft, “The Book of Isaiah,” The New York Times (June 27, 2004): 11; Simon Schama, “Flourishing,” The New Republic (January 31, 2005): 23-30.



The Yom Tov Lecture of R. Eliezer Hagadol

The Yom Tov Lecture of R. Eliezer
Hagadol

By Chaim Katz, Montreal
Our
Rabbis taught in a baraita: R. Eliezer was sitting and lecturing about
the laws of the festivals the entire day. A first group left and he said: these
people own pithoi (huge storage containers). 
A second group left and he said: these people own amphorae (smaller
storage containers). A third group left . .
.  A forth group left . . .  A fifth group . . .  When a sixth group started to leave. . . He
looked towards his students and their faces turned white. He said:  “my children, I wasn’t speaking to you, but to
those who left, who abandon eternal life and busy themselves with mundane life.”
When the students were dismissed he said to them: “Go, eat delicacies, and
drink sweet drinks . . . for today is a holy day . . .”
The
baraita has: “who abandon eternal life and busy themselves with mundane
life”.   But isn’t the joy of the
festival a mitzva? Rabbi Eliezer’s opinion is that joy of the festival
is a reshut as was taught: Rabbi Eliezer says: A person on Yom Tov has
no way except to eat and drink or to sit and study [Torah].  R. Yehoshua says: divide [the time], half for
eating and drinking and half for the study hall. (Betza 15b) [1]
To
summarize:  1) R. Eliezer was critical of
those who walked out during his lecture. 2) R. Eliezer’s criticism is in
agreement with his opinion that eating on the festival is not a mitzvah. 3)
However, he believes that eating is valid on a holiday and is equivalent to study
on a holiday.  4) R. Eliezer encourages
his students to eat delicacies and drink sweet beverages after the lecture has
ended. 
Something
doesn’t seem right.
In his book on R. Eliezer ben Hyrcanus ,
Professor Yitzhak D Gilat, writes:
From R. Eliezer’s reaction to the groups
leaving the study-room, it appears that the alternative of eating and drinking
is merely a hypothetical one . . .   In
practice he disapproves of it. [2]
I think there
is another way to reconcile the different aspects of the story but first some
background:
The
definition of a derasha (the term for R. Eliezer’s lecture) is a talk
(usually related to the current Sabbath or holiday) that was delivered to the
general public. It had a standard form, and was delivered at a specific time.
[3]
An
eye-witness description of a derasha from the time of the Gaonim
exists: [4]
The
head of the yeshiva of Sura opens the lecture (with a verse) and the meturgaman
stands near to him and proclaims his words to the people. When the head of the yeshiva
lectures, he lectures with awe. He closes his eyes and wraps himself in his tallit,
even his forehead is covered. While he lectures, no one in the congregation
makes a sound or says a word.  If he senses that someone in the audience is
speaking, he opens his eyes and a dread of trembling falls upon the entire
congregation…
The derasha was delivered either at
night (the eve of yontov), or in the morning (after the Torah Reading)
or during the afternoon [5].  
R. Eliezer probably did not lecture the
entire day, [דורש
כל
היום
כולו]. He probably lectured for only part of
the day. Parallels prove this point:
1.      They said about R. Yohanan ben Zakai that
he was sitting in the shade of the Temple sanctuary lecturing the entire day.  (Pesahim 26a)
דתניא אמרו עליו על רבן יוחנן בן זכאי שהיה יושב בצילו של
היכל ודורש כל היום כולו 
R.
Yohanan b Zakai couldn’t have sat in the shade all day unless he started on the
west of the heichal and later moved himself (and the audience) to the
eastern side of the heichal. It’s likely that his derasha took
place in the afternoon, when shadows extend towards the east. [6]
2.      They
immediately sat him [Hillel] at the head and appointed him nassi over them
[the Sanhedrin]. He lectured the entire day on the laws of Passover. (Pesahim
66a)
מיד הושיבוהו בראש ומינוהו נשיא עליהם. והיה דורש כל היום
כולו בהלכות הפסח
As
the Gemarah describes, they first searched for someone who could tell
them what to do when the eve of Passover falls on the Sabbath. They found
Hillel. They interviewed him. He presented his arguments, but his reasoning was
rejected. He argued a different way and his reasoning and halakha were accepted.
They offered him the leadership of the Sanhedrin and he accepted. They gathered
the people and he gave the derasha. All that must have taken some time,
which leads to the conclusion that he also lectured during the second part of
the day.
To summarize:  
1)      The people who attended the derasha were mainly regular shul-goers –
members of the community.
2)      Although R. Eliezer’s disciples where also present, the people who left the
lecture before it ended were the regular shul-goers. [7]
3)      R. Eliezer’s lecture took up only part of the day. Based on the expressionדורש כל היום כולו , the derasha probably took place  in the latter part of the afternoon, (like
the derashot of his teacher and his teacher’s teacher).
4)     
Therefore, we can conclude that R. Eliezer expected his
congregants to eat a yomtov meal and they most probably already did so
before the derasha started. He holds that you can observe the holiday either
by eating or by learning Torah – but neither of these activities has to last the
entire day.  
The
climax of the story, the phrase “they abandon eternal life and busy themselves
with mundane life”, also needs to be explained. The sentence is used a number
of times in the Talmud, but it has a bit of a different meaning each time it’s
used. The primary sense is in Taanit 21a: Ilfa and R. Yohanan decide to leave
the beit-ha midrash in search of a more financially secure lifestyle. At
the start of their journey, an angel is heard saying, they are “abandoning
eternal life and occupying themselves with mundane.”
However, in our story
the simple straightforward meaning doesn’t fit. How
were the congregants abandoning eternal life by leaving the lecture early?  They certainly heard more Torah on this day
than they heard on a regular work day. And why were they more engaged in the
mundane today while eating a holiday meal compared to when they eat a normal week-day
meal on any other day? [8]
Which
leads to another point – we aren’t very
familiar with R. Eliezer and his halakhic opinions. We
know he had an affinity for Beit Shammai (and was maybe the last of the Beit
Shammai) and we know that the sages and most of his own disciples distanced
themselves from him and his teachings were not preserved. [9]
R.
Shaul Lieberman in his commentary to the Tosefta of Berakhot, tells us
something about R. Eliezer that I believe is the key to understanding our
story.
We
read in the Tosefta (Berakhot 4:1):
לא ישתמש אדם בפניו ידיו ורגליו אלא לכבוד קונהו שנא’
(משלי טז)
כל פעל ה’ למענהו
One
should not use his face hands or feet but in honor of his Maker as it says:
Everything G-d creates, He creates for its specific purpose.  (Proverbs 16:4)
Professor
Lieberman explains: [10]
לפי פשוטו משמעו שלא ישתמש אדם בהם להנאתו גרידא אלא לכבוד שמים ואם הוא עושה כן הרי כבוד שמים מתירן לו בהנאה.
A
person is not to act solely for his own pleasure but is to act for the honor of
heaven. When he acts this way, his intention for the sake of heaven grants him a
license to enjoy the pleasure.
R.
Lieberman continues and demonstrates that this is the position of Hillel.
However Shammai has a different approach; Shammai regards physical pleasure as
something to be accepted only grudgingly or maybe even involuntarily:
Everything
you do should be for the sake of Heaven, like Hillel.  . . . 
“Where are you going Hillel”, “I’m going to do a mitzvah.” “What mitzvah
Hillel?” “I’m going to the bath-house.” “Is that a mitzvah”, “Yes . . . ”
But
Shammai wouldn’t say that, rather he would say “let us fulfill our obligation
to this body of ours.” [11]
Prof.
Lieberman points out that R. Eliezer follows and practices the teaching of
Shammai. [12]
Returning
now to our story: R.
Eliezer however, views the yontov food like ordinary week-day food, i.e.
 שמחת יום טוב רשות,
and being an ordinary meal, the physical pleasure of the food or drink cannot be
fully enjoyed. [13]
R. Eliezer expects his community to follow
his own rulings and practices. [14]  He suspects that the groups who left before the lecture concluded
were returning home to drink wine and enjoy tasty food for the physical
pleasure of eating and drinking. They were abandoning eternal life – the life of eating purely without
thinking of the physical pleasure and were engaged in the temporal life of
self-indulgence. [15]
Yet, R. Eliezer could still be conciliatory
to his students and encourage them to eat and drink delicacies in honor of the
holiday because he knew they would eat their food in a befitting way and live
up to his teaching and principals.
I believe it’s possible to clarify the
positions of R. Eliezer based on writings of Maimonides. [16] Starting with Sefer
Ha Mitzvot:
ואחרי עיניכם  – זו זנות שנאמר: ויאמר שמשון
אל אביו וגו’ (שופטים יד, ג (הכוונה באמרם זו זנות רדיפת התענוגות והתאות הגופניות
והעסקת המחשבה בהן תמיד.
The Sifre interprets  . . . don’t follow after your eyes (Numbers
15:39) this refers to promiscuity (zenut)  . . .   including the pursuit of pleasure and pursuit
of physical gratification as well as the constant wishful thinking about them.
[17]
In the Guide, Maimonides expands this
point. [18]
There are some – a partition separates
between them and G-d, the collection of dimwits, who suppress their faculty of
thinking about ideas, who pursue only the sensory feeling which is our greatest
disgrace – the sense of touch. They have no thought or notion except for
thoughts of eating, sex and nothing else . . .
In contrast, the ideal person whom everyone should emulate fits the
following profile [19]
[people] for whom all compulsory
materialness is humiliating and disgraceful;  a flaw  which is forced upon them, especially the
sense of touch, which is humiliating to us as Aristotle wrote, that moves us to
desire eating, drinking and sexual acts, which must be minimized as much as
possible. One must be discreet and pained when engaged in it, not make it the
subject of our speech, not talk about it freely, not sit in assemblies for
these purposes but rather control of all of these needs and reduce them to the
essential minimum as much as we can.
R. Eliezer follows this ideal. I would
argue this is not asceticism. R. Eliezer is doing the same things that everyone
else does. His feelings are different (and that affects his behavior somewhat),
but his feelings follow from his understanding of the Torah’s instruction:  לא תתורו,
and by definition, carrying out the rules
of the Torah is not called asceticism.
In the 5th chapter of the
introduction to his commentary on Abot, Maimonides speaks about dedicating
one’s actions for the sake of heaven, לשם שמיים:
[20]
Know that this level is an outstanding and
difficult accomplishment that is reached by very few, after very much practice.
If there is a man who behaves this way I don’t consider him inferior to the
prophets. Someone who uses all of his powers and directs them solely for the
sake of G-d, who doesn’t perform any big or small activity or speak a word
unless that activity or word brings one toward virtue  . . .
Maimonides’ idea of “for the sake of
heaven” is that certain activities are forbidden unless they are performed for the
sake of heaven. These activities include listening to music, studying science,
spending time on appreciating art or nature and others like them.
For “required” mundane activities like
eating, bathing and so on, the intention for the sake of heaven is also
necessary and permits two things. 1) It allows more elaborate activities (e.g.,
to eat a tasty more elaborate meal, as in Baba Kama 72a- אכילנא בשרא דתורא).
2) It also allows one to enjoy the pleasure associated with the activity
according to Hillel. As we’ve seen, R. Eliezer disagrees with the second point.
[21]
Rabbi Moshe Sokol defines Neutralism: [22] 
Pleasure in itself is neither good nor
bad. Pleasurable activities are also, in themselves, neither good nor evil.
Pleasurable activities derive their value only instrumentally, either by
considering the consequences . . .  or by
considering the intentions of the person engaging in the pleasurable activity .
. .
I believe that R. Eliezer is also a
neutralist because he is not forbidding any permitted pleasurable activity. If a
“mundane” pleasurable activity is clearly a mitzvah, (eating matzah
at the seder(?)), then I would guess the pleasure can probably be
enjoyed. If it’s not a mitzvah then the pleasure can’t be enjoyed.
I saw a midrashic source, which at first
glance seems to describe R. Eliezer’s asceticism.
The
Beit Hamidrash of R. Eliezer was shaped like a stadium. There was a special stone
there which was reserved for R. Eliezer to sit on. Once R. Yehoshua came in and
began to kiss the stone saying this stone is like Mount Sinai and the one who
sat on it is like the Ark of the Covenant. [23]
Why
did R. Eliezer sit on a stone? But this is an invalid question. Everyone in the
beit–hamidrash sat on the floor and this had nothing to do with
asceticism (see Yevamot 105b).  The
teacher however didn’t sit on the floor but sat a little higher, maybe on a
stone like this one [see note 24].
 The same midrash describes R. Eliezer’s
school:
One
time R. Aqiba was late in coming to the beit hamidrash. He sat
outside. A question was asked. They said the halakha is outside  . . . 
the Torah is outside  . . .  Aqiba is outside. They cleared a way and he
came and sat in front of the feet of R. Eliezer. [25]
It
sounds like the students sat (cross-legged) on the ground in concentric circles
around R. Eliezer. R. Eliezer sat (cross-legged) on his stone and R. Aqiba (the
most senior student) sat directly at R. Eliezer’s feet. [26]
If
this arrangement was also in place during R. Eliezer’s derasha, then the
first group – the group of congregants that left the earliest were probably sitting
(on the ground) on the outermost concentric circle closest to the exit so that
they could easily make their get-away. The other groups (who were also planning
on leaving early), also sat on the ground nearer to the exit. The students however,
who planned on staying until the end sat closest to their teacher R. Eliezer.
 [1]
ת”ר מעשה ברבי אליעזר שהיה יושב ודורש כל היום כולו בהלכות
יום טוב יצתה כת ראשונה אמר הללו בעלי פטסין כת שניה  אמר הללו בעלי חביות כת שלישית אמר הללו בעלי כדין כת רביעית
אמר הללו בעלי לגינין כת חמישית אמר הללו בעלי כוסות התחילו כת ששית לצאת אמר הללו
בעלי מארה נתן עיניו בתלמידים התחילו פניהם משתנין אמר להם בני לא לכם אני אומר אלא
להללו שיצאו שמניחים חיי עולם ועוסקים בחיי שעה בשעת פטירתן אמר להם לכו אכלו משמנים
ושתו ממתקים ושלחו מנות לאין נכון לו כי קדוש היום לאדונינו ואל תעצבו כי חדות ה’ היא
מעוזכם
אמר מר שמניחין חיי עולם ועוסקין בחיי שעה והא שמחת יום טוב
מצוה היא רבי אליעזר לטעמיה דאמר שמחת יום טוב רשות דתניא רבי אליעזר אומר אין לו
לאדם ביום טוב אלא או אוכל ושותה או יושב ושונה ר’ יהושע אומר חלקהו חציו לאכילה
ושתיה וחציו לבית המדרש.
[2] Yitzhak D Gilat, R. Eliezer ben
Hyrcanus A Scholar Outcast Bar-Ilan University press 1984, p 279 (English
edition).
[3] In the Practical Talmud Dictionary by Rabbi
Yitzhak Frank, s.v. דורש this example is
quoted (Sota 40a):
R. Abbahu and R.
Hiyya b Abba happened to come to a certain town. R. Abbahu taught aggada; R.
Hiyya b Abba taught halakha.  Everyone
abandoned R. Hiyya b. Abba and went to hear R. Abbahu.
רבי אבהו דרש באגדתא רבי חייא בר אבא דרש בשמעתא שבקוה כולי
עלמא לרבי חייא בר אבא ואזול לגביה דר’ אבהו 
[4] Quoted on page 1 of the  introduction to Sheiltot
d’Rav Achai 
ed. Rabbi Samuel K. Mirsky (Jerusalem, 1960) from Medieval Jewish
Chronicles Seder ha-Ḥakhamim ve-Korot ha-Yamim, (Part ii, page 84)
edited by Adolf (Avrohom) Neubauer.
עד שפותח ראש ישיבת סורא והתורגמן עומד עליו ומשמיע דבריו לעם. וכשדורש דורש באימה וסותם את עיניו
ומחעטף בטליחו עד שהוא מכסה פדחחו. ולא יהיה בקהל בשעה שהוא דורש פוצה פה ומצפעף ומדבר דבר .וכשירגיש באדם שמדבר פותח את עיניו ונופל על הקהל אימה ורעדה.  וכשהוא גומר מתחיל בבעיא ואומר
[5] R. Ezra Zion Melamed in Mavo Lsifrut
Hatalmud page 74. (However the derasha of the head of the Sura
Yeshiva on the occasion of the nomination of the exilarch (previous note) was
given before the reading the Torah.)
[6]
Mishna Midot 2:1
הר הבית היה חמש מאות אמה על חמש מאות אמה רובו מן הדרום, והשני לו מן המזרח, והשלישי לו מן הצפון,
ומיעוטו מן המערב.  מקום שהיה רוב מידתו,
שם היה רוב תשמישו.
The
temple mount was five hundred cubits by five hundred cubits. Most of the free
space was on the south; then on the east; then on the north; and the smallest
area was on the west. The larger the area the more it was used.
[7] Artscroll translated: the first group of students
left . . . the second group of students 
. . .
[8]
The same phrase also appears in Shabbat 10a and there too the plain meaning
doesn’t fit well:
Rava
saw R. Hamnuna prolonging his prayers and said: They abandon eternal life and
busy themselves with the mundane.
Aside
from the plural language, how could one describe prayer (service of the heart
(Taanit 3a)) as “mundane”?  A friend
(res) suggested that if this is the same Rav Hamnuna who was criticized by Rav
Huna for being single (Kiddushin 29b) and if he still wasn’t married by now
then Rava might be telling him that he is abandoning eternal life (marriage and
potential children), and busy with prayer , which is temporal because it
benefits only himself.  Or if it’s the
same Rav Hamnuna who in Berakot 31a taught an approach to prayer based on
Hannah’s prayer, then maybe Rava, who was a descendent of Eli the Priest (Rosh
Hashana 18a – manuscripts), like his forbearer, misunderstood this type of
prayer and considered it to be mundane.    
[9] R. Ezra Zion
Melamed, Pirkey Mavo Lsifrut Hatalmud (Jerusalem 5733), p. 64.
[10] R. Saul Lieberman
Tosefta kiPheshuto, Berakhot, p. 56, explaining the beginning of the
4th chapter.
[11]
Solomon Schechter ed, Abot de-Rabbi Nathan, Vienna, 1887, Recession B,
chapter 30. Page 33b
שמאי לא היה אומר כך אלא יעשה חובותינו עם הגוף הזה
[12] Nedarim 20b
[13]
Mishna Betzah (5:2), reshut is a voluntary type of action that has a
certain dimension of mitvah-bility to it.
כל שחייבין עליו משום שבות, ומשום רשות, ומשום מצוה בשבת–חייבין עליו ביום טוב אלו הם משום רשות–לא דנין, ולא ולא מקדשין, ולא חולצין, ולא מייבמין
[14]
R. Eliezer also said: one may cut down trees to make charcoal for manufacturing
iron tools to perform a circumcision on the Sabbath  . . . Our Rabbis taught: In R. Eliezer’s
locality they would follow his teaching and cut down trees to make charcoal to
make iron tools to circumcise a child on the Sabbath – Shabbath 130a
[15] Rambam
Shebitat Yom Tov  6:18 writes:
The people gather early in the morning in
the synagogues and houses of study. They say the prayers, read the Torah
relevant to the day and return home to eat. They go to the houses of study,
read [Torah], recite [Mishna] until after noon. 
They say the afternoon prayers and return home to eat and drink for the
remainder of the day and night. 
R.
Kapah notes that they return home to eat (after shaharit), but return
home to eat and drink after the minha prayer. Here too, R.
Eliezer mentions the household items used mainly to store wine.
[16]
I assume that vis-à-vis these philosophical teachings, there was no “rupture
and reconstruction” to interrupt between the times of Chazal and Rambam.
[17]
Sefer HaMitzvoth, (Neg. 47) Rabbi
Kapah’s edition:
“ואחרי עיניכם”
– זו זנות שנאמר: ויאמר שמשון אל אביו וגו’ (שופטים יד, ג (הכוונה באמרם זו זנות רדיפת התענוגות והתאות הגופניות
והעסקת המחשבה בהן תמיד.
[18]
Guide section III, chapter 8, R. Kapah’s edition. (R. Kapah, in his Sefer
Hamitvot points out this parallel)
אבל האחרים שמסך מבדיל בינם לבין ה’ והם עדת הסכלים, הרי בהפך זה, ביטלו כל התבוננות ומחשבה במושכל, ועשו תכליתם אותו החוש אשר הוא חרפתנו הגדולה, כלומר: חוש המישוש, ואין להם מחשבה ולא רעיון כי אם באכילה ותשמיש לא יותר
[19]
Guide section III, chapter 8, R. Kapah’s edition.
כל הכרחי החומר אצלם חרפה וגנאי ומגרעות שההכרח מחייבם,
ובפרט חוש המישוש אשר הוא חרפה לנו כפי שאמר אריסטו אשר בו מתאווים אנו האכילה והשתייה והתשמיש, שראוי
למעט בו ככל האפשר, ולהסתתר בו ולהצטער בעשייתו. ושלא ייחד בכך שיחה ולא ירחיב בו דיבור, ולא יקהל
לדברים אלה, אלא יהיה האדם שולט על כל הצרכים הללו, וממעט בהן ככל יכולתו, ולא יקח
מהן כי אם מה שאי אפשר בלעדיו.
[20] Shemone Perakim, Chapter 5, internet
edition here.
ודע, שהמדרגה הזאת היא מדרגה עליונה מאוד וחמודה.
ולא ישיגוה אלא מעטים,
ואחר השתדלות רבה מאוד. וכשתזדמן מציאות-אדם, שזה מצבו, לא אומר, שהוא למטה מן הנביאים,
רצוני לומר: שיוציא כוחות-נפשו כולם וישים תכליתם האלוהים יתעלה לבד,
ולא יעשה מעשה קטון או גדול,
ולא יבטא מילה, אלא שאותו מעשה או אותו ביטוי יביא ל”מעלה” או ל”מה שמביא אל מעלה”.
[21]
I don’t think Maimonides discusses the pleasure associated with physical
activities performed for the sake of heaven. I noticed that in In The Sages
– Their Concepts and Beliefs E.E. Urbach 
(Jerusalem 1978 Heb.), page 299, the author understands that according
to Shammai there is no concept of acting for the sake of heaven when it comes
to activities that fulfill bodily needs like eating, washing and so on, but I
don’t understand why the author says so.
[22]
Attitudes Toward Pleasure in Jewish Thought, Moshe Z. Sokol, in Reverence,
Righteousness and Rahamanut – Esssays in Memory of Rabbi Dr. Leo Jung ed.
Jacob J. Schacter, page 300-304
[23]
Shir Hashirim Rabba 1:3  לריח שמניך טובים
ובית מדרשו של רבי אליעזר היה עשוי כמין ריס, ואבן אחת הייתה שם והיתה מיוחדת לו לישיבה. פעם אחת נכנס רבי יהושע התחיל ונושק אותה האבן ואמר: האבן הזאת, דומה להר סיני, וזה שישב עליה, דומה לארון הברית.
[24]
Magdala stone (via Google images) http://www.antiquities.org.il/article_eng.aspx?sec_id=25&subj_id=240&id=1601
[25] Shir Hashirim Rabba 1:3 
פעם אחת שהה רבי עקיבא לבא לבית המדרש בא וישב לו מבחוץ. נשאלה שאלה: זו הלכה, אמרו: הלכה מבחוץ. חזרה ונשאלה שאלה. אמרו: תורה מבחוץ.  חזרה
ונשאלה שאלה. אמרו: עקיבא מבחוץ. פנו לו מקום. בא וישב לו לפני רגליו של רבי אליעזר.

[26]
The story in Berakhot 28a (and Yerushalmi Berakhot 4:1 (daf 32b in mechon-mamre
and snunit sites), (the question about the obligation of the evening prayer), speaks
about a beit–midrash with benches. Maybe the meeting place of the
Sanhedrin was different and they didn’t sit on the floor?


Blessed art Thou, O Lord, our God, ruler of the universe, for having not made me Rabbi Yitzchak Adlerstein[1]: Traditional Orthodoxy at a Crossroads

By Mrs. Elizabeth Blottstein-Blatt
I am gravely concerned about the future of Jewish Leadership and the survival of traditional Orthodoxy as we know it.

I know it in my bones that the whole community is drifting to the right. Moreover, this rightward drift can hardly be said to produce Jewish leaders of vision and consequence. The rabbis returning from the yeshivas, whether in my native England, or from Eretz Yisrael, or even from those iconic colonies like the Five Towns and Pikesville, seem a rather wobbly basket of eggs.

In my youth, I would ask my grandmother any question about kashrus in the kitchen. She would always answer correctly, though what she knew of the Shulchan Aruch can be summed up by her devotion to using a spotless white tablecloth every Friday night. Yet the same question posed to a kollel chap requires conferral with a maggid shiur who confers with the mashgiach who parlays with the Rosh Yeshiva who makes a call to Israel.[2] Clearly, the spreading of wisdom has lead to epidemic levels of confusion in certain circles.[3] The mesorah is being pummeled from within! I myself am terrified by these yoetzot women, but at least they do not have to go gadding to some indecisive rabbi every time they find a dairy spoon in a meat drawer.

If memory serves the author, there was a time when isolated rabbis could make difficult decisions, but today we have technology. We are drunk with telephones, facsimiles, electronic mail, and so forth, which we use religiously to contact the six or seven gedolim who are permitted to answer questions. Thus everyone else is relieved of any responsibility of having to look up something in the Shulchan Aruch, and is free to tarry long hours studying Tractate Zevachim, eating cholent three nights a week, and waiting for the Mashiach. Glory be the Gan Eden that we live in!

***
In any event, I was recently forwarded a fascinating web article from Cross-Currents, a website whose contributors carry loose and firm associations with the Aguda, Ohr Samayach, the Haredi College for Women and other right-thinking organisations. The article is by a dynamic Los Angeles rabbi, a gevaldeke human being, considering our generation – rachmana liztlan. Astonishingly, this rabbi exhibits extraordinary respect for those with whom he disagrees. Especially the Far Left, which he claims has no “gedolim or stellar halachists,” nor do its members have much “competence with text that comes with many years of serious […] learning.” Correspondingly, these Far Left rabbis must resort to “wide-scale counterfeiting of Torah” to make up for their ignorance. If this is true, I would hardly bother speaking to such people, much less chiding them respectfully. It must be this rabbi’s enduring commitment to tolerance that endows him with such patience and openness to others. Let the Children of Israel learn from his example!

Now to the point, the fine article begins as a sweeping account of the aggressive advances of Far Left- Wing Modern-Orthodox rabbis. From his description, I could hear the clap of cannon blasts and the approaching artillery shells being fired. I could not help but shiver imagining that Gateshead and Ner Yisrael and the Mir were under siege by the International Rabbinic Fellowship, which is really just another name for Yeshivat Chovevei Torah, which are really Rabbi Avi Weiss and his multitudinous fifty graduates and fifty current rabbinic students! The tens of thousands who attend Gateshead and Chofetz Chaim and Ner Yaakov and Yeshiva University are trembling, for these shock troops have “quietly slipped into pulpits around the country” and are representatives of a Judaism that is so “different” that “it can no longer be called Orthodox as the rest of us know it.”

Yet what specific provocation provoked this good minister of the Mosaic faith to finally sound the battle cry and forewarn the “heimishe” community that “partnership minyanim” and “woman’s Tefillah groups” may soon destroy the ehrliche shtieblach of Hancock Park and Monsey? Apparently, there is another “dynamic Los Angeles rabbi, a wonderful human” that has broken all bounds of normative halachah by publicizing that he can no longer recite the morning benediction of shelo asani isha— Blessed art Thou…for having not made me a woman—because it is inherently offensive to women.[4]

How this provocateur extraordinaire—this “wonderful human”—can be described so glowingly when it is later reported “that he mocks […] the previous gadol hador, Rav Moshe Feinstein zt’l” is yet another indication of the good minister’s boundless respect for those with whom he stridently disagrees.

Returning to the matter at hand, it is abundantly self-evident that one cannot overreact to such provocations, and here I quote the good minister again, “hundreds of thousands of our Modern Orthodox brethren” stand “in danger of embracing a treif ideology.” Yet, if so grave is the matter, so black the threat, I must humbly chide the good minister for restraining his rage…for not doing more and speaking louder!

I was particularly astonished that his article contained an almost mythic absence of halachic sources and citations. What good is all the learning of right-thinking rabbis, who are so much more learned than their left-winging brothers (and occasional sisters, as if it needs be said) if they don’t use their vast erudition as an axe to fell these saboteurs of traditional yiddishkeit! For the briefest of moments, there was a reference to R. Samson Raphael Hirsch zt’l and his battle with the 19th century reformers. But this was the equivalent of pulling the pin and pocketing the grenade. Rav Hirsch himself decided to strike Kol Nidre from the Yom Kipper liturgy, as the prayer “was susceptible to misunderstanding” as one scholar put it.[5] Clearly, the saboteurs might make a comparison.

Then there was a shocking reference to the Rambam, with the good minister’s implicit p’sak that those who attempt to change our holy liturgy, may it remain immaculate and pure until the end of days, are not in any way violating the Thirteen Principles of Faith! To quote briefly: “Rambam writes that we have no right to be dismissive of any Jew who accepts the Thirteen Principles of Faith. ‘When a person believes in these principles…he is included in the nation of Israel.’” Such magnanimous tolerance! ….At least those on the Far-Far Left who reject the 13 Principles are not included among body of Israel, may God have compassion upon their souls. (See endnotes.)[6]

Yet mere mention of Maimonides is the intellectual equivalent of a company of airmen parachuting without a chute. Everyone knows that Rambam acted unorthodoxly upon occasion. Did the good minister forget that Rambam omitted the ancient blessing said by a groom over virgin blood from his magnum opus?[7] The arch rationalist clearly thought the benediction was regressive in the extreme. Fortune prick me, but this could be used as a precedent by the Far Left who claim that shelo asani ishah evokes visages of grunting cavemen![8]

In a similar vein, the Rambam offered liturgical latitude to Ovadiah the Convert, as the devout proselyte felt that repeating certain benedictions verbatim would be dishonest![9] And dare we forget how Rambam arose, as if on a whim, and eliminated the silent amidah from the great synagogues of Egypt? Our provocateur extraordinaire eliminated one blessing—half-mumbled in the small hours of the morning while most are mostly asleep—how can we call this ‘dangerous’ when others (following the Rambam) continue to neuter the mussaf service on the Sabbath and Holidays!?[10] The good minister must do better in his combat with the adversarial Far Left!!!

***
Some right-hearted rabbis (not the good minister, but a fellow swimmer or two in Cross-Currents) have erred in the past by making humiliating concessions to liberal sentiment. One duly noted that “interpreted properly,” the blessing of shelo asani ishah yields a meaning that is “loving and sympathetic.”[11] How this is achieved is not stated precisely, though the recipe seems to require a dash of positive attitude and a pinch of fuzzy creativity. My throbbing heart prays earnestly that the heimeshe community may yet evade the seductive embrace of the lovely-jubbly mumbo-jumbo (so endemic on the sing-along Left); but I fear the gates of the faithful are falling!

Still, there are a host of sages who defend the integrity and original intent of the sacred benediction said by men: “Blessed art Thou… for having not made me a woman;” as well as the women’s benediction: “Blessed art Thou…for having made me according to thy will.” A glorious example is Rabbi Jacob ben Asher who well understood the second-class status of the second sex. He suggests that the woman’s prayer is a form of ‘acquiescence to the Almighty’s decree for the evil (of her status)’[12]: ונהגו הנשים לברךשעשאני כרצונו ואפשר שנוהגים כן שהוא כמי שמצדיק עליו הדין על הרעה.

Lest bleeding hearts try to reinterpret Rabbi ben Asher’s words as being “loving and sympathetic,” we ought to cite Rabbi ben Asher’s comment on the Genesis 1.27, where he offers this fascinating novellae: “The mathematical equivalent of the word ‘male’ is ‘blessing,’ while the mathematical equivalent of the word ‘(and) female’ is ‘curse.’” (Hebrew: זכר בגימטריא ברכה. ונקבה בגימטריא קללה )o[13]

Clearly, tradition deems that women have a diminished stature vis-à-vis men.[14] On account of this, the right-thinking rabbis, who represent the sacred platitudes of our great tradition, ought to declare this sentiment without apology or apologetics. But where are these fearless leaders? Do they need permission from three Gedolim—or at very least a conference call with the executive board of the RCA or Agudas Yisrael—before they can fight on behalf of truth?

To be a tad forward, I myself would be happy to oblige, however, women (for their own good) are hardly encouraged to learn such things as gemora and poskim… let alone engage in debates about Da’as Torah! But perhaps I should sigh with relief. For I shall never be criticized for writing a 3600-word polemic without citing a few dozen ma’arei mekomos (scholarly citations), much less a Rashi or two from Bereishis or Tractate Berachot! Fate, thankfully, has absolved me of such responsibility. To which I might add, without meaning any insult: ‘Blessed art Thou, O Lord, our God, ruler of the universe, for having not made me Rabbi Yitzchak Adlerstein.’

[1] I refer the reader to Rabbi Yitzchak Adlerstein’s article, “Modern-Orthodoxy at a Crossroads” of 27 September, 2011 (link).
Additionally, the title refers the reader to Rabbi Dov Fischer’s article, “Who Hast Not Made me a Liberal Rabbi” of 8 August, 2011 (link).
[2]Cf. Soloveitchik, Haym. Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy. Tradition Volume 28:4 (Summer 1994)
[3] It is hardly surprising that the blessing thanking God that ‘one is not an ignoramus’ was, despite its Talmudic prescription, eventually omitted from the liturgy. (Cf. Menachot 43b; Tosefta Berachot 6:18) Though it has been conjectured that the inverse blessing, thanking the Lord for ‘having not been made a scholar,’ was much more prevalent among the masses (amei haaretz), the assertion has yet to find evidentiary support suitable to archeologists. (For the complete tale, see Borges, J.L. in manuscript: La Búsqueda de Geniza Otros El Cairo (The Search for Cairo’s Other Geniza) from Ficciones II. 1957. Located in the Archives of the Biblioteca Nacional de la República Argentina – Buenos Aires. An incomplete edition was once in the custody of the Valmadonna Trust. However, it was exchanged for several damaged Tractates of the “Bomberg Talmud.” The former is rumoured to be held in the basement of a Franciscan monastery in northern France…Basse-Normandie or thereabouts.
[4] Rabbi Yosef Kanefsky (here).
[5] See entrée for Hirsch, Samson Raphael. Encyclopedia Judaica.
[6] See Shapiro, Marc, “The Limits of Orthodox Theology” for a rather long list of Jewish authorities who are sadly no longer among the fold… I would assume the good minister considers Reform and Conservative Jews who reject the Thirteen Principles to be excluded from the nation. Pity.
[7] Chelkat MeChukak. Even HaEzer 63.2 [7]
[8] I must point out that I differ here with the minister’s rather foolish defence of those who claim that man may have descended from apes (link). Obviously, this is wrong, though there may be some truth to the claim that some part of ‘humanity’ descended from demons. (See Guide of the Perplexed I.7, cf. II.30; Eruvin 18b; Bereishit Rabbah 20:28;24:6)
[9] Iggrot ha-Rambam ed. Y. Shilat (333-334)
[10] The Spanish-Portuguese Synagogue is rumoured to practice this neutered Amida, yet I have been unwilling to visit that I.R.F. cabal to attest to the practice. *In order not give ammunition to the adversary, or cite an individual who might be inappropriately hoisted as a Gadol of the Far Left, I have refrained from mentioning the work of Rabbi Dr. Daniel Sperber in the body of my article. See his book: “On Changes in Jewish Liturgy: Options and Limitations.”
[11] R. Dr. Emanuel Feldman. Tradition 29:4 pages 69-74(Summer 1995)
[12] Tur OH 46.4; Similarly, R. David Abudarhim understood the woman’s blessing as a form of tzidduk hadin. See Sperber (above) ch. 4.
[13] Baal HaTurim Gen. 1.27. Oddly, the math for v’nikevah (163) is two less than klalah (165), which lends itself to a number of insights that I have yet to fully explore.
[14] See Beit Yosef’s elucidation of Rashi’s view. On Tur OH 46.4; For further reading, see R. Eliezer Berkovits’ “Jewish Women in Time and Torah.” Chapters 1-2. Ktav, 1990.


The censorship of Rav Kook and other Hebrew books on Hebrew book databases

Today, censorship of Hebrew books takes place on many levels. Although previously the censorship of Hebrew books was driven in large part due to external concerns, today, most of the censorship takes place internally, by Jews for Jews. This censorship is generally driven by the false notion that Orthodox Judaism is and was monolithic. Of course, students of history know that this is entirely false; within the confines of Orthodoxy, there was diversity of opinion and practice (perhaps due to modern day censorship, this diversity has been slowly eroding within the Orthodox community).
It’s worth noting that one of the more insidious examples of censorship is that of the modern Hebrew book databases. Today, there are three distinct databases, although they each borrow from one another.[1] The three are Otzar HaHochma, Otzrot ha-Torah and Hebrewbooks.org. The first two are more explicit about their censorship of some texts. They provide options when purchasing their databases, a scrubbed version and a more complete version. Some refer to the scrubbed version as the “Benei Yeshiva” version. It is unclear why those in Yeshiva, presumably dedicating their time to the study of Jewish literature, became short hand for a database that refuses to allow large portions of Jewish literature to be seen. In all events, these at least clue the buyer or user in on the fact that the databases may be incomplete.

Hebrewbooks, however, is in a different category. Hebrewbooks, which is funded by donations, states that its “goal is to bring to life the many Seforim that were written and unfortunately forgotten, and to make all Torah Publications free and ubiquitous.” (Emphasis added). In truth, not all Torah publications are included in the Hebrewbooks database. This is not a product of happenstance that these authors are left out. To the contrary, in many instances, these works were scanned, uploaded and included in the Hebrewbooks database, only to have them disappear when presumably someone decided that these books should be removed. To be clear – Hebrewbooks will take the time, money and effort to make a Torah publication available online, only to remove it – without ever offering a reason or noting that it has been removed.[2] While Hebrewbooks is a modern day example using modern technology to advance a particular ideology, such ideological censorship, especially regarding R. Kook, has and still takes place.[3]

Regarding censorship, one person who has suffered terribly is R. Kook.[4] And, while one can debate the legacy of his philosophy,[5] it is hard to do so when all vestiges of him are removed. Ironically, some of the censorship of R. Kook is partially cured by Hebrewbooks’ inclusion of many of the originals that include comments or portions from R. Kook that no longer appear in the current editions. [Of course, one hopes that the censor at Hebrewbooks doesn’t read this and “remedy” this.] While R. Kook has been censored in various ways, from not mentioning his name, even when it’s merely a reference to a publishing house bearing his name and is not actually a reference to R. Kook (see here), the most common form of censoring R. Kook is to remove his approbation from works, and there are many, for he was a renowned ga’on in his time. One such work is the excellent and erudite commentary on Torah, Pardes Yosef by R. Yosef Pazanavski. Although Pardes Yosef is described as a Torah commentary, in reality is a veritable encyclopedia of highly interesting Rabbinic miscellany. For comparison, Pardes Yosef is what a Torah commentary would look like if R. Ovadiah Yosef wrote one. It is full of interesting tangents that are treated in an incredibly comprehensive manner. Indeed, many speakers and modern day commentaries appear to be heavily based upon Pardes Yosef even if it’s not always cited.
The first volume, on Bereshit, was first published in Lodz in 1930.[6] This work contains the approbations of many well-known Rabbis, including R. Menachem Mendal of Gur (Gur [Gerrer] Rebbi – Penei Menachem), R. Yosef Hayyim Sonnenfeld, R. Meir Shapira, R. Yisrael Meir ha-Kohen (Hafetz Hayyim). In this instance, unlike the case for many approbations, many of those praising the work actually read it, indeed many include glosses and notes on the text. R. Pazanavski was especially proud of the Gur Rebbi’s approbation as R. Pazanavski was a Gur hassid.[7] Now, not everyone seems to have gotten their approbation back to R. Pazanavski in time to include it at the beginning of volume, instead, R. Pazanavski includes some late-received approbations at the end of the book, one of which is R. Kook’s. R. Pazanavski prefaces R. Kook’s approbation with the following:
From the true Gaon, who is known throughout the world for his wisdom and Torah in both the revealed and hidden Torah, and his many precious works, the glory of our generation, the polymath our leader and Rabbi Avraham Yitzhak ha-Kohen Kook shlit”a. The head of the Rabbanut in Israel and the head of the Bet Din of Jerusalem.
As mentioned above, many of the approbations contain comments on Pardes Yosef, and R. Kook’s is one of these. R. Kook, in attempting to answer a question raised in the work, records an interesting story regarding R. Yehoshua Leib Diskin. R. Kook explains that R. Diskin remained lucid, with all his mental faculties, right up until his death. As proof, R. Kook tells the story of a woman who brought a cloth which had a stain to determine a niddah issue. R. Diskin ruled strictly. The woman was unhappy with the ruling and assumed R. Diskin only ruled that way because he couldn’t really see or understand the issue. So, without telling R. Diskin brought it back to him, but didn’t tell him it was the same as before. R. Diskin looked at it and immediately identified it as the very same cloth and issue as before. Those around him were astounded, how could he possibly know that this nondescript cloth was the same? To which R. Diskin responded that it has such-and-such number of threads. The students then took the cloth apart and sure enough it had exactly the thread-count R. Diskin said.[8]
The Pardes Yosef was and is a fairly popular work and as such has been reprinted multiple times. Indeed, since its publication in 1931, it was published an additional three times in photo-mechanical reproductions. In some of these reproductions, however, R. Kook’s approbation is missing. Instead, there is a blank page where his approbation previously appeared.
Uncensored:
Censored:
The Pardes Yosef while popular was a difficult work. In part this is due to the overuse of obscure abbreviations.[9] In 1995, a new edition of Pardes Yosef was published, and this edition attempted to make the book more user-friendly by removing the abbreviations, resetting the type and other improvements. This edition was published in Benei Berak, and notably includes R. Kook’s approbation in reset type. But, for this edition, only part of the first volume was published and then no more.
In 1998, a new edition, boasting many of the improvements contained in the 1995 edition began being published again in Benei Berak. Although titled Pardes Yosef ha-Shalem (emphasis added), this edition is incomplete at least regarding R. Kook’s approbation. That approbation is again missing.
Today, Hebrewbooks includes the first edition – the edition that includes R. Kook’s approbation (link). While presumably unintended, Hebrewbooks has followed R. Pazanavski’s wish that his work bear the approbation of R. Kook.
[1] In reality there are many more databases which either include Hebrew books or are devoted to Hebrew books. Generally, these are found on various library’s websites and are limited to the works that the particular library owns and are not intended to be comprehensive. The three databases discussed above intend to include all Hebrew books.
[2] A partial list of Hebrew books which appeared, but were removed from Hebrewbooks.org is:
  • Arnold Ehrlich – Mikra Kifshuta (Berlin 1899)
  • R. Gedaliah Nadel – Betorato shel R. Gedaliah (see Rabbi Natan Slifkin on that here)
  • Moses Mendelssohn – Phaedon (Hebrew)
  • Moses Mendelssohn – Netivot Shalom – Bamidbar (Vienna 1846) (40004)
  • Moses Mendelssohn – Netivot Shalom – Devarim (Vienna 1846) (40005)
  • R. Yom Tov Schwartz – Maaneh Leigrot (which is available elsewhere online here)
  • Joseph Perl – Megaleh Temirin 1819 (43110)
  • A Karaite siddur from 1737 (43124)
  • Naftali Herz Wessely – Olelot Naftali – Bereshit 1842 (34363)
  • Naftali Herz Wessely Wessely – Shirei Tiferet 1809 (43205)

The numbers are provided in some cases, where available, showing where they used to be on Hebrewbooks.org. Needless to say, many books remain which would be removed, if the criteria applied to these were able to apply to the many needles in a nearly 50,000 piece-strong haystack.

Here is a graphic depicting how one of these books was on Hebrewbooks.org. It is no longer.
Note that this very book bears approbations from Chacham Isaac Bernays and R. Jacob Ettlinger. For more on Wessely in seforim, see Eliezer Brodt’s post here.

The Otzar Ha-hochma removes books as well, even from it’s standard “non-Benei Torah” version. For example, the periodical Yerushalayim (Zolkiew 1844) was there. Now it is gone.
[3]For other examples of using modern technology and modern methods to promote a traditional (albeit anachronistic) point-of-view, see Yoel Finkelman, Strictly Kosher Reading: Popular Literature and the Condition of Contemporary Orthodoxy, Academic Studies Press: 2011.
[4] For examples of censorship regarding R. Kook see Dr. Meir Raflad “’al Peletat Soforim” Sinai 122 (1998) 229–232; Dr. Meir Raflad “Oy l’Tzadik v’Oy l’Shcheno” Hatzofeh, Sept. 2, 2005.
[5] See, e.g., Gershom Gorenberg, The Unmaking of Israel, HarperCollins Pub., 2011, arguing that the modern-day Israeli settlements and their attendant issues springs from R. Kook’s philosophy.
[6] The title page records the date of publication as the Hebrew year of 5690, (printed in the year “Kechu Sefer Pardes Yosef ha-Zeh”) in reality it wasn’t completed until 5691, as R. Pazanavski signs the final page 13 Tishrei 5691. Ultimately, only three volumes would be published, Berashit, Shemot and Va’yikrah. While R. Pazanavski wrote on all five volumes of the Torah, the remaining manuscript was lost during the Holocaust. The Mandelbaum edition, discussed below, “completes” the remaining volumes in the same style as the first three. Thus, today, Pardes Yosef is available on the entire Torah.
[7] In light of R. Pazanavski’s affilation with Gur and specifically, the then current rebbi, Penei Menachem, it’s unsurprising that R. Pazanavski viewed R. Kook positively. It is well-known that the Penei Menachem had a favorable view of R. Kook. See R. Eliezer Sirkes, Ish ha-Emunah, Yitzhak Alfasi ed., Tel Aviv: 1979, pp. 111, 124, 128, 131. One of the putative goals of the Penei Menachem when he went to Israel was to attempt to reconcile R. Kook and R. Sonnenfeld. Thus, it is especially ironic that, as discussed below, the Mandelbaum edition removes R. Kook’s approbation as Mandelbaum is a Gur hassid.
[8] This story appears to have been related at one of the eulogies after R. Diskin’s death. See Yeshah Orenstein, Ma’amar Shelamut ha-Mitzeyot, in Hiddushei R. Yeshayah Orenstein, Jerusalem: 1972, p. 185. A similar story is told about R. Eliyahu Mizrachi (1450-1526). See R. Abraham Kalphon, Ma’aseh Tzaddim, Assaf Revivi ed., Ashkelon: 2009, p. 160. According to this story the king (presumably it would be the Sultan and not a king as after 1453, Constantinople was ruled by the Ottomans and its leader was a sultan) wanted to show the greatness of R. Mizrachi. To do so, he took a special chair and placed R. Mizrachi upon it and asked him to calculate the distance between him and the sky. R. Mizrachi asked for a pen and paper and, after some calculations, wrote down a number which the king took as proof. Of course, this wasn’t convincing to those around. But what the king then did was some time later the king took out the chair again but this time he ordered a small coin be placed under the chair’s legs, unbeknownst to anyone else. He then had R. Mizrachi come back and the king feigned that he couldn’t recall R. Mizrachi’s prior calculation and asked him to repeat it. This time R. Mizrachi wrote down the same number but said that is now seems that it needs to be reduced by the width of a coin. Like the story with R. Diskin, this demonstrated R. Mizrachi’s amazing estimation ability. Unfortunately, to our knowledge, there are no recorded stories of any famous rabbi winning guess the number of jelly beans in a jar contest.
[9] On the use of obscure abbreviations see Ya’akov Shmuel Speigel, “Ha-Shimush be-Kitzurim ve-Roshei Tevot Shanom Shichim,” Yeshurun 10: 2002, pp. 814-30.