A Note on the Latin Dedication in the Rabbinic Bible of Venice 15

A Note on the Latin Dedication in the Rabbinic Bible of Venice 1517
by: Jordan S. Penkower
In response to the recent post at the Seforim Blog about approbations of Hebrew books, a correction is in order concerning the footnote about the intent of the remarks of Felix Pratensis in his dedication of the Venice 1517 Rabbinic Bible to the Pope. In footnote 3 of the recent post, a conjecture was offered to explain Felix Pratensis’ remarks.
In addition, Pratensis claims that this edition was unique as the prior editions “hav[e] almost as many errors as words in them” and that “no one has attempted [such an edition] before.” Ginsburg in his discussion about this edition shows, however, that in fact previous editions were (close) to error free. Ginsburg bemoans the fact that “Felix Pratensis should have been betrayed to resort to such unfair expedients.”  But, it is possible that Pratensis’ claim regarding the novelty of the work was necessary in part due approbations.  Not Rabbinic approbations but the approbation of the Venetian Senate.  This is so, as in 1517 the Senate passed a law that would abolish all printing monopolies (copyrights) and hence forth would only grant monopolies for works which “are new or which have never been printed before.”  Horatio Brown, The Venetian Printing Press (London 1891), 74. Indeed, Bomberg, the printer of this edition had appealed to the Senate for a monopoly when he began printing in 1515 and which the new law abolished. See Meir Benayahu, Copyright, Authorization & Imprimatour for Hebrew Books Printed in Venice (Israel 1971), 17 (Hebrew).  Thus, it is possible that Pratensis claim of novelty was to argue implicitly that this book qualified for a monopoly even under the new law as it was a “new” book.  
I would like to clarify a number of points about Pratensis’ remarks.
(1) Among his remarks, Pratensis makes the following statements: (a) no one before him had collated a great number of manuscripts to prepare a Bible edition; (b) the errors in the manuscripts are almost as many as their words, and only in this printed edition has the text been restored to its purity (See my PhD, p. 282 and nn. 20-21 for text and translation).
(2) Previous scholars have pointed out the problem with Pratensis’ remarks, which seem to be mere hyperbole. C.D. Ginsburg, in his Introduction (pp. 946-947), who explained Pratensis’ remarks as referring to the text, noted that he found several manuscripts similar to Pratensis’ edition, and on the other hand, never found any manuscripts whose errors were as numerous as its words. P. Kahle, in numerous places, e.g. Cairo Geniza, p.123, offered an explanation of Pratensis’ remarks: Pratensis was referring to the vocalization found in the manuscripts, specifically those manuscripts with “expanded-Tiberian vocalization”, a system that he rejected.
(3) Neither of the above explanations of Pratensis’ remarks is satisfactory. Ginsburg – he himself noted that if Pratensis refers to the text, there are several manuscripts similar to Pratensis’ printed edition. Kahle – his explanation is unsatisfactory because Pratensis said that ALL mss – and not some specific sub-type – were replete with errors. I have offered an explanation several years ago in my doctoral thesis (pp. 187-188) that avoids the shortcomings of these suggestions. In chapter four of my thesis, I presented a detailed comparison of the variants between the Venice 1517 and the 1525 Rabbinic Bibles – in Genesis, Joshua, and Proverbs – both with respect to the text, as well as to the vocalization, accentuation, and ga’ayot. In light of the results of the comparisons between the two editions, I suggested that one should explain Pratensis’ remarks as referring both to the text, as well as to the vocalization, accentuation, and ga’ayot.
(4) I have shown in my fourth chapter that with respect to the TEXT, Pratensis relied mainly on accurate Sefardi manuscripts. These manuscripts do NOT mark the “light ga’aya” consistently; do NOT use qamatz together with shewa to note the qamatz qatan (but only the sign of the qamatz alone); do NOT have a special sub-system of accentuation in Proverbs; and do NOT write “bin-Nun” with a dagesh in the first nun of the name Nun. With respect to all of these latter four phenomena – found in the Rabbinic Bible of Venice 1517 – Pratensis relied upon Ashkenazi manuscripts, which also vary widely from the accurate Sefardi manuscripts with respect to the details of plene-defective spelling (these Ashkenzai manuscripts also vary among themselves with respect to the above four phenomena). From these details it follows that according to Pratensis every manuscript that he saw, its errors were like the number of its words: Ashkenazi manuscripts with respect to the plene-defective spelling (and other topics), and the Sefardi manuscripts with respect to vocalization, accentuation, and ga’ayot.
(5) Thus we see that Pratensis indeed thought that his edition was unique and was the first accurate Bible edition. In his edition, he gathered for the first time phenomena from the above noted Sefardi and Ashkenazi manuscripts, and in his opinion his edition thereby “restored the splendor to the crown” with regard to all of its components: text, vocalization, accentuation, and ga’ayot. In reality, he created a new hybrid that never existed in the manuscripts.
Bibliography: Christian D. Ginsburg, Introduction to the Massoretico Critical Edition of the Hebrew Bible, London 1897, reprint: New York 1966; Paul Kahle, The Cairo Genizah, Oxford 1959; Jordan S. Penkower, Jacob ben Hayyim and the Rise of the Biblia Rabbincia, PhD dissertation, 2 vols, Jerusalem 1982 (Heb.); idem, “Rabbinic Bible”, in: Dictionary of Biblical Interpretation, vol. 2, Abington Press, Nashville Tenn 1999, pp. 361b-364a.



Torah mi-Sinai and More

Torah mi-Sinai and More
by Marc B. Shapiro
1. Some people have requested that I do more posts on theological matters, as I have done in the past. So let me begin with what I think will be a three-part series on Torah mi-Sinai.
In a previous post, available here, I mentioned R. Shlomo Fisher’s rejection of R. Moshe Feinstein’s view that R. Yehudah he-Hasid’s “biblical criticism” was not authentic. As R. Fisher put it, R. Moshe assumed that even in the past everyone had to accept Maimonides’ principles, but that was not the case, and when it came to Mosaic authorship R. Yehudah he-Hasid disagreed with Maimonides. R. Uri Sharki has apparently also discussed this with R. Fisher, as he cites the latter as claiming that the issue of whether post-Mosaic additions are religiously objectionable is a dispute between the medieval Ashkenazic and Sephardic sages. See here. 
What this means is that in medieval Ashkenaz it was not regarded as heretical to posit post-Mosaic additions, while the opposite was the case in the Sephardic world (and this would explain why Ibn Ezra could only hint to his view). I am skeptical of this point, particularly because Ibn Ezra’s secrets are, in fact, explained openly by people who lived in the Sephardic world.[1] Yet Haym Soloveitchik has also recently made same point, and pointed to differences between Jews living in the Christian and Muslim worlds. His argument is that since medieval Ashkenazic Jews were not confronted with a theological challenge of the sort Jews dealt with in the Islamic world, where Jews were accused of altering the text of the Pentateuch, there was no assumption in medieval Europe that belief in what we know as Maimonides’ Eighth Principle was a binding doctrine of faith.
Here is some of what Soloveitchik wrote (the emphasis does not appear in the original):
One tanna had stated, simply and with no ado, that the last eight verses were of Divine origin but not of Mosaic authorship, and R. Yehudah he-Hasid added that there were several more verses that were not penned by Moses. Was such a position seen as being thoroughly mistaken? Most probably. Was it viewed as odd and non-conformist? Undoubtedly; though hardly more eccentric than R. Yehudah’s view that King David, to flesh out his book of Psalms, lifted from the text of the “original” Pentateuch many anonymous “psalms” that Moses had penned! Were these strange and misguided views, however, perceived as being in any way heretical or even dangerous? At that time and place, certainly not. They contained no concession to the surrounding culture, opened no Pandora’s Box of questions. Indeed, one can take the religious temperature of R. Yehudah he-Hasid’s explanation by the matter of fact way European medieval commentators (rishonim) treated the passages in Menahot and Bava Batra where the tannaitic dictum of Joshua’s authorship is brought.[2] In their world, these words did not abut any slippery slope of a “documentary hypothesis” or of “Jewish forgery”. No need, therefore, to reinterpret this passage or to forfend any untoward implications. What concerned R. Yehudah he-Hasid’s contemporaries, the Tosafists, in this statement were its practical halakhic implications for the Sabbath Torah readings, not its theological or dogmatic ones, for to them, as to R. Yehudah, there were none.[3]
Sharki, who is a leading kiruv figure in the Religious Zionist world, adds something quite amazing. From the standpoint of Ibn Ezra and R. Yehudah he-Hasid, which he sees as an acceptable approach, he writes that what is important is the belief that the Torah is true and from God.
 עיקר האמונה הוא להאמין שכל דברי התורה אמת ושהם מפי ה’
In other words, Mosaic authorship is not something people need to put such a focus on.
Sharki goes even further, stating that according to the Kuzari, post-Mosaic prophets could add to and delete material in the Torah. As support for this viewpoint, he cites an article by R. Yosef Kellner in Tzohar 22. (Kellner is a leading interpreter of R. Kook from the hardali camp.) I looked at Kellner’s article and found nothing that says this explicitly. However, I did find an interesting statement in Kellner’s article, and presumably this is what Sharki was referring to (although it still doesn’t say what Sharki claims it does):
אך לכוזרי, כמו לבה”ג, לא כל התרי”ג מצוות התגלו בסיני ההיסתורי, אם כי כולם דברי קבלה ממשה בסיני-הפנימי-נשמתי
This could be a very radical statement, depending on how it is interpreted. On the one hand, it could mean that some mitzvot in the Torah were actually established in a post-Mosaic era, but that is OK since these mitzvot arose from the spiritual wellsprings of Sinai. This is how Sharki must understand the passage. But I think it is obvious that Kellner doesn’t mean this at all, and the reference to the Halakhot Gedolot is the give-away. As is well known, the Halakhot Gedolot counts among the 613 commandments certain rabbinic laws. What the logic of this position is is not our concern at present. For our purposes what is important is that the Behag, and Kuzari, never say that  there are mitzvot in the Torah that are post-Mosaic, only that post-Mosaic mitzvot can be counted as part of the 613. There is an enormous difference between this understanding and the following, which is Sharki’s formulation:
לפי שיטת הכוזרי שגם הנביאים יכולים להוסיף או לגרוע בתורה, בניגוד לדעת הרמב”ם
David Halivni, Breaking the Tablets: Jewish Theology After the Shoah, p. 99 (called to my attention by Cemmie Green), states that according to R. Saadiah Gaon, “certain areas of the Law were originally more complete and more explicit in the Torah given by Moses to the people.” Here is the text he bases this statement on, found in Lewin’s introduction to Iggeret R. Sherira Gaon, p. X:
שבתורת משה אנו מוצאים הרבה ענינים הכתובים באריכות כמו למשל מעשה משכן, פרשת מלואים, פקודי ישראל וחנוכת המזבח. ובנגוד לזה כתובים בקצור נמרץ חוקי הזיבות, וחוקי עבור השנה נכללים רק במלת “אביב” גרידא, מה שהוא תמוה מאד אם לא נניח, שגם החוקים הללו היו כתובים באר היטיב אלא שאינם אצלינו בכתב אלא מסורים בעל פה.
It certainly does seem as if R. Saadiah is saying that some laws were removed from the Torah. Yet I also see how someone can argue that, contrary to Halivni, it does not say anything about these laws originally appearing in the Torah. It could be that he is only telling us that part of the “Oral Law” was written down in Moses’ day.
Assuming the latter explanation is what R. Saadiah means, there is good reason to assume that he was not being frank here. At a lecture at the University of Scranton, Prof. Daniel Lasker memorably stated that “all is fair in love and polemics.” If R. Saadiah issaying that part of the Oral Law was written down in Moses’ day, I believe he was twisting the truth as part of his battle with the Karaites. The Karaites were arguing that the Oral Law was not authentic, and R. Saadiah replied that not only was it authentic, but at least some of it was even written down in Moses’ day, thus precluding the sorts of errors that would arise from an oral tradition. R. Saadiah’s approach here would thus be no different than his claim that the calendar was the original way to determine the new moon, with sighting a later innovation. Already Maimonides declared that R. Saadiah did not really believe this, but found it useful to argue this way in the midst of a polemic against the Karaites.[4]
R. Yuval Sherlo was recently asked if it is acceptable to posit post-Mosaic authorship of passages of the Torah, following in the paths of R. Judah he-Hasid and Ibn Ezra.[5] Rather than reject the latter viewpoint, he claims that it is important to stress the ikkar ha-ikkarim, namely, that the authority of the Torah does not depend on who wrote it. What is crucial is that it was given by God. Even if there are verses that were written by someone else other than Moses, as was held by R. Judah he-Hasid and Ibn Ezra, this is not heresy, unless one assumes that these portions were not written through Divine Inspiration. Sherlo himself acknowledges that there is a good deal of evidence apparently pointing to the fact that some verses are post-Mosaic.
ישנם סימנים רבים בתורה שלכאורה מעידים על כך שחלק מפסוקי התורה נכתבו לאחר משה רבינו
 He concludes:
על כן, בשעה שמאמינים במוצא העליון המוחלט של כל פסוקי התורה אין איסור להרחיב את מה שאמרו חכמינו על הפסוקים האחרונים בתורה לעוד מקומות בתורה, בשל העיקרון הבסיסי הקיים בדברים אלה – התורה היא מוצא “פיו” המוחלט של ריבונו של עולם.
Needless to say, this is in direct contradiction to Maimonides’ Eighth Principle, and is an opening for Higher Biblical Criticism to enter the Orthodox world. For those who don’t read Hebrew, what Sherlo is saying is that Mosaic authorship does not matter, as long as one accepts that the Torah is divine. This is a huge theological step (a “game changer”), which for those who accept it entirely alters the playing field. This is such a break with the standard Orthodox view that I don’t know why Sherlo’s position has not received any publicity. Let me say it again, in case people haven’t been paying close attention: Sherlo’s argument permits Higher Criticism, as long as one asserts that the entire Torah is divinely inspired.
Sherlo is not some fringe figure. He is Rosh Yeshiva of the Hesder Yeshiva in Petah Tikva and a major personality in religious Zionism. (In the next installment of this series I will present further evidence that in some parts of the Modern Orthodox world the old taboo against Higher Criticism has begun to fade.)
Not surprisingly, Sherlo’s position was challenged by some commenters and he in turn defended what he wrote. Interestingly, one of the commenters writes about Ezra editing the Torah, and Sherlo does not reject this. Instead, he asserts that whoever arranged the Torah did it with prophecy that was the equal of Moses’ prophecy.
מי שסידר את התורה אף הוא עשה זאת בנבואה [!] התורה ולא בנבואה שהיא פחות מנבואת משה רבינו
In other words, Sherlo has adopted Rosenzweig’s point that “R”, instead of standing for “Redactor”, really means “Rabbenu.”[6]
When this formulation was challenged, since how could there be prophets of the level of Moses as this would contradict the Seventh Principle, Sherlo was unperturbed.
[שאלה] מה פירוש נביא שסדר את התורה עשה זאת בנבואת משה רבינו. האם היו עוד נביאים כמשה? הלא מעיקרי הדת שלא היו.
[תשובה] לפי הרמב“ם אלו עיקרי הדת. ברם, אפילו אמוראים סברו אחרת לגבי הפסוקים האחרונים בתורה
In other words, since there are amoraim who disagree with Maimonides’ Principle, it is not binding.[7]
In speaking of the Torah, Sherlo uses this provocative formulation (emphasis added):
ניסוח התורה הוא ניסוח שאנו מתייחסים אליו כולו כאילו כולו יצא מרבונו של עולם בדרגת “תורה” ולא בדרגה נמוכה ממנה.
One of the commenters asks as follows (and both of the possibilities he suggests are far from traditional):
הרב כותב כי “ניסוח התורה הוא ניסוח שאנו מתייחסים אליו כולו כאילו כולו יצא מריבונו של עולם”. האם זהו רק יחס שלנו, והיינו שיש לכתוב סמכות של תורה, או שבאמת אלוקים דיבר וסיעתו של עזרא כתבה?
Sherlo replies that he simply does not know, and that we don’t know what the Torah looked like in the years after it was given (until the days when the Torah she-ba’al peh was written down, and quotations of the Torah are found there). In other words, it might be significantly different than the Torah we have today:
אנחנו לא יודעים. יש חור שחור בתולדות מסירת התורה, כי אין לנו בדיוק מושג מה היה באלף השנים שבין מתן תורה לבין כתיבת התורה שבעל פה. לכן התנסחתי בנוסח זה.
In a previous post I already called attention to a comment by the great R. Solomon David Sassoon, who wrote as follows (Natan Hokhmah li-Shelomo, p. 106 [emphasis in original; I learnt of this passage from  R. Moshe Shamah]):

אבל אם יאמר פסוקים אלה נביא אחר כתב אותם מפי הגבורה ומודה שקטע זה הוא מן השמים ומפי הגבורה, אדם שאומר כך אינו נקרא אפיקורוס, מה שהגדיר אותו כאפיקורוס אינו זה שאמר שלא משה כתב את הקטע אלא בזה שהוא אומר שדבר שזה מדעתו ומפי עצמו אמרו ושאין זה מן השמים

This too can provide a religious justification for Biblical Criticism.

Let me make one more comment relating to Biblical Criticism. (There is, of course, more to say, but this can wait until the next installment.) Those who have read my posts know that I find it very interesting when Orthodox figures attack a position as foolish or heretical not knowing that this very position was stated by a great sage. If one was dealing with a detached academic, obviously heresy wouldn’t be a concern. And as for regarding a position as foolish, even if it is pointed out to the detached academic that, for example, Aristotle held this view, he would not retract from his statement that the position he criticized was foolish. It would just be an example where the great Aristotle adopted a foolish position. But in the Torah world, this sort of attitude is improper, so people are in a bind when they learn that the position they thought was foolish was actually held by a great sage.[8] In many cases I assume the people cannot change the way they think. They still think the position is foolish, but they can’t say this publicly anymore. Let me given an example of this relating to Biblical Criticism.

As is well-known, one of the arguments of early Biblical Criticism was that the “Book of the Law”, found by Hilkiah and given to Josiah (see 2 Kings 22 and 2 Chronicles 34), was actually the book of Deuteronomy, which the Critics assume to be the latest of the books of the Pentateuch.[9] They regard it as a pseudepigraphical document, attributed to Moses. In other words, it was a pious fraud created to provide the basis for Josiah’s reform. Readers can correct me if I’m wrong, but I don’t think that this theory has many advocates in recent scholarship. In any event, what concerns me here is that when rabbis and polemicists argue against Biblical Criticism, they often tear part the claim that Deuteronomy is the subject of the Josiah story. One can find lectures online where the speaker will mention this notion, and then reject it with great contempt. The attitude expressed is that anyone with any understanding of the Torah, or even of simple peshat of the relevant verses, would realize that Josiah story must be dealing with a complete Torah, not one book of the Pentateuch. Some go so far as to make it seem that only an idiot could conclude that Josiah is dealing with the book of Deuteronomy. For a traditionalist, this would appear to make perfect sense, since who ever heard of dividing the Torah into separate scrolls?[10]         
Yet if the people arguing so strongly against the Josiah-Deuteronomy connection would look at the version of the story in 2 Chron. 34, they would find something that would shock them. While verses 14 and 15 speak of finding ספר תורת ה’ ביד משה  and ספר התורה, the commentary attributed to Rashi understands this to mean משנה תורה, i.e., the book of Deuteronomy! In other words, the position of the Bible Critics as to which book was “found”,[11] and the position attacked so mercilessly by the opponents of the Biblical Critics, is in fact held by a rishon! I am not saying that this rishon is a proto-Biblical Critic, or that he denies the Mosaic authorship of Deuteronomy. But he does say that the book found, and which was read to Josiah and so affected him, was not the Torah itself, but only the book of Deuteronomy. I grant that this is an unusual position, but now that we have seen what this rishon holds, does this mean that this viewpoint now has to be treated with more respect, as opposed to the current treatment it gets at the hands of Orthodox polemicists?[12]
This notion, that the book Hilkiah found was Deuteronomy, is also advocated by R. Elijah Benamozegh. [13] Benamozegh states that if this viewpoint is correct, it means that from early on there was a practice to write the book of Deuteronomy separately from the rest of the Pentateuch. He also cites a rabbinic view that the Torah that the king carried was only the book of Deuteronomy.[14] Based upon this, he explains why the book found was brought to the king, since it was precisely this book that the king was obligated to write and carry with himself. Benamozegh concludes:
סוף דבר קרוב ונראה שהיו מעתיקים ס’ מ”ת בפ”ע כמו שנוכיח להבא בע”ה כי ספר תורת משה נכתבה בימי קדם חלקים ונתחים כל א’ בפ”ע, ובראש כל אתוון מה שהעידו רבותינו באומרם: תורה מגלה מגלה נתנה
2. Since in the previous section I referred to Ibn Ezra’s view on post-Mosaic additions to the Torah, let me say a little bit more about this. At the beginning of his commentary to Deuteronomy chapter 34, Ibn Ezra states that the last twelve verses of the Pentateuch were written by Joshua. The Talmud only offers this possibility concerning the last eight verses. The Kol Bo, Seder Tefillat ha-Moadot (ed. Avraham [Jerusalem, 1992), vol. 3, p. 220) writes:
ושמנה פסוקים אשר בזאת הברכה שהם מויעל משה עד ויהושע בן נון, יחיד קורא אותם.
The problem with this formulation is that there are twelve verses from ויעל משה (Deut. 34:1), not eight. I presume that instead of ויעל משה  the text should read וימת משה (Deut. 34:5), which is the eighth verse from the end and what the Talmud refers to. It is also possible that instead of stating “eight verses” it should read “twelve verses,” and the Kol Bo would then be agreeing with Ibn Ezra.[15]
In The Limits of Orthodox Theology I referred to Avat Nefesh, an anonymous medieval commentary on Ibn Ezra, as one of those who understood the latter as positing post-Mosaic additions. I had access to the Genesis portion of the commentary which appeared in William Gartig’s 1994 Hebrew Union College doctoral dissertation. A typescript of the complete commentary is now available on Otzar ha-Hokhmah, and this typescript pre-dates 1994. (In the preface to the typescript, the transcriber presents evidence that the author is R. Yedayah ha-Penini [ca. 1270-1340].)[16] In his commentary to Gen. 12:6, Avat Nefesh states that according to Ibn Ezra “many verses” in the Torah were only added after Moses’ death. He also notes that this is the focus of most of Ibn Ezra’s “secrets”.
כי כונתו שזה לא כתב משה אך נכתב אחר שנכבשה הארץ וכן דעתו בהרבה פסוקים ורוב סודותיו סובבים בזה כאשר אמר בראש אלה הדברים.
With the complete commentary we can also see what he says in Deut. 1:1. Here again he explains Ibn Ezra’s secret to be referring to post-Mosaic verses. Yet he also expresses his disagreement with Ibn Ezra and defends Mosaic authorship, although it is not clear if he is disagreeing in general or only with regard to the example he is discussing, where he explains why the expression בעבר הירדן is not an anachronism.
The principle by which Ibn Ezra determined that certain verses are post-Mosaic is if they contain what he regarded as clear anachronisms. All of the examples he gives in his commentary to Deut. 1:1 fall into this category. R. Joseph Bonfils famously argues that while Ibn Ezra acknowledged post-Mosaic additions of individual words and verses, which function as explanatory glosses, Ibn Ezra did not believe that there could be entire sections that are post-Mosaic. This is how Bonfils explains why Ibn Ezra, in his commentary to Gen. 36:31, responded so sharply to Yitzhaki’s suggestion that Gen. 36:31-39 is post-Mosaic:
וחלילה חלילה שהדבר עמו . . . וספרו ראוי להשרף
The problem with these verses is that they begin with the following: “And these are the kings that reigned in the land of Edom, before there reigned any king over the children of Israel.” Some viewed it is an anachronism to speak of the Israelite monarchy when still in the desert. As mentioned in The Limits of Orthodox Theology, R. Judah he-Hasid, R. Avigdor Katz, and according to one Tosafist collection also Rashbam identified these verses as post-Mosaic. As far as I can tell, there is no evidence to support Bonfil’s supposition that Ibn Ezra, for dogmatic reasons, denied that there could be post-Mosaic additions of entire sections. In the case of Gen. 36:31-39, there are internal reasons why Ibn Ezra would not see it as problematic, as he explains in his commentary.
Returning to Avat Nefesh, there is something else noteworthy in the commentary. He mentions that Ibn Ezra believes that “many verses” are post-Mosaic. Although Ibn Ezra himself doesn’t supply us with that many verses, once we assume that Ibn Ezra was guided by what he viewed as anachronisms in pointing to post-Mosaic additions, there is no reason to conclude that the examples he gives in his commentary to Deut. 1:1 exhaust the list. In support of Avat Nefesh’s point, let me mention the following: Ibn Ezra lists Gen. 12:6, “And the Canaanite was then in the land,” as one of the post-Mosaic additions. Understood according to their simple sense, these words can be seen as anachronistic as the Canaanites were still in the Land of Israel in the days of Moses. In other words, the words are written from the perspective of one living in a generation when there were no longer Canaanites in the Land of Israel. If these words are post-Mosaic, then the second half of Gen. 13:7 must also be post-Mosaic, as it says, “And the Canaanite and the Perizzite dwelt then in the land.” Just as Ibn Ezra didn’t feel it was necessary to spell out his view with regard to Gen. 13:7, so too, Avat Nefesh believes, there are other similar cases.
Avat Nefesh provides an example of this in his commentary to Num. 13:24, where he writes that according to Ibn Ezra (see his commentary, ibid.) at least some of what appears in this verse was written in the days of the Judges.
ר”ל שוירדוף עד דן נכתב לפי דעתו בימי השופטים שאז נקרא שם העיר דן כשם דן אביהם, כן כוונתו בנחל אשכול שנכתב אחרי כן בשמו שקראו הקורא
3. Let us now return to R. Shlomo Fisher, with whom we began this post. Despite coming from a very haredi background, he has close ties with the religious Zionist world. You can see many of his shiurim on www.yeshiva.org.il and here is his picture.
It is because of his ties with religious Zionists that R. Shach criticized him in conversation with R. Mordechai Elefant, late Rosh Yeshiva of the ITRI yeshiva, presumably as a way of pressuring R. Elefant to fire R. Fisher.

Here is how R. Elefant told the story, in his own words:

Rav Shlomo Fisher is a member of my faculty and one of the most brilliant talmudists of this generation. He was born and raised in the heart of Meah Shearim, but he has connections with religious Zionist institutions. I once came into Rav Shach, and he started calling Rav Shlomo a kalyekker [someone not firmly devoted to the purest Torah ideals]. I was annoyed, but I didn’t say anything. This happened a second time. I said to myself then, “If this happens again, I have to do something about it.” It happened again. So I went into Rav Shlomo’s room here in the yeshiva, and I took out a letter written by the Steipler in which he calls Rav Shlomo “pe’er ha-dor” (glory of the generation). Next time I went to Rav Shach, he said again that Rav Shlomo is a kalyekker. I said, “Rav Shach, listen to me. The Steipler is also a kalyekker.” He looked at me like I was crazy, but then I showed him the letter. I never heard any more complaints about Rav Shlomo. I told this to Rav Shlomo and it didn’t mean a thing to him. The only thing he cares about is understanding the Torah.
R. Elefant continued with the following story:
Then there was a time when a member of my own staff came to me with similar objections. He wanted me to get rid of Rav Shlomo. He quotes Bialik, Nietzsche, and all sorts of other things that are generally unacceptable in yeshivot.[17] I told him, “You’re right, but I’ve got one problem. You and me, we can teach these boys here how to understand Talmud. But there’s a lot more to education than that. Who’s going to teach these kids about purity, humility, and integrity? You? Me? That’s what we need Rav Shlomo for.” The guy chuckled and agreed with me.
I have previously mentioned that R. Fisher is, to my knowledge, the only gadol be-Yisrael who is also an expert in medieval Jewish philosophy. Many are disappointed that he does not take a public profile and express his views on issues of the day. If you are part of the group that studies with him every week, then you are fortunate to hear his views (which sometimes filter out). But what about the rest of the world?
A couple more stories R. Elefant told of his relationship with R. Shach are worth repeating. The two of them were close friends for decades, from before the time when R. Shach was recognized as the leader of the Lithuanian Torah world. That is why R. Elefant was able to speak to him in a way that others would never have dared.
Once R. Elefant was in Bnei Brak to give a shiur, and he went to visit R. Shach.
I went into Rav Shach’s room. He greeted me and asked what my lecture was about. I said, “Rav Shach, let’s be frank with each other. You don’t want to know what I lectured about, and I don’t want to know what you lectured about. I came here because you want to shoot the breeze.” His laugh was worth a million bucks to me.

The other story relates to a conflict between R. Shach and R. Yehudah Zev Segal of Manchester. R. Shach was upset with R. Segal because the latter didn’t accept R. Shach’s views which were creating great conflict between the yeshiva world and the hasidim.

Rav Shach heard that I was a friend of Rabbi Segal’s, so he told me he wanted to talk with me about him next time I was in Bnei Brak. It wasn’t too long before I was there, and Rav Shach asked me what I knew about Rabbi Segal. I told him, “I’ll tell you the truth. Rav Shach, you are the most powerful man in this world. You build governments, you break governments. What you say goes. People say about you “kocho ug’vuraso molei olam.” But Rabbi Segal is different. His opinion counts over there in the other world.Rav Shach’s attendants were dumbstruck. They couldn’t believe I had the nerve to say that to his face. But I didn’t meant to insult Rav Shach and he wasn’t fazed. He asked, “Do you really mean that?” I said I did, and after that he left Rabbi Segal alone.
Here is some of what R. Elefant said about Saul Lieberman.

When Lieberman came to Israel, the Brisker Rav acted like he was his best friend. They asked him why, and he had a one-word explanation, “mishpochoh.” They were cousins.

One of the Rav’s sons, I think it was Meir, got engaged to a girl from a family called Benedikt. I was invited to the engagement party. The Brisker Rav was sitting next to Saul Lieberman. I saw it. On Lieberman’s other side was the Mir Rosh Yeshiva, Reb Leizer Yehudah Finkel. That time Lieberman was persona non grata.
Here is another story from R. Elefant.
Lieberman was good friends with Rav Hutner. They were both students of Rav Kook, and they palled around in New York back in the fifties. They both used to go to the 42nd Street Library because there were lots of seforim there. Rav Hutner had a beard as black as coal back then. He wore a short jacket. Lieberman was once standing there in the library and who should come in but his friend, Rav Hutner. Lieberman says in Yiddish, “Here comes God’s dog.” Rav Hutner retorted, “Better to be a dog of God than to be a god to dogs.” Rav Hutner told me that one himself.
4. In a recent post on his blog, R. Daniel Eidensohn refers to my comment in this post where I suggested that the lenient attitude towards pedophilia in much of right wing Orthodoxy is due to the fact that the real trauma of sexual abuse is not something that one can learn about in traditional Jewish sources but comes to us from psychology, and as such is suspect in those circles that see psychology as a “non-Jewish” discipline. Let me offer another example that illustrates how today we take sexual abuse much more seriously than in previous years. Here is a responsum no. 378 from R. Joseph Hayyim’s Torah li-Shemah.

As you can see, the sexual abuse of a child under nine years old was not regarded by him as an earth-shattering violation (certainly not at the level of violating Shabbat or eating non-kosher food). While we regard child sexual abuse as one of the worst things imaginable, it is easy to see how someone whose only exposure to these matters would have been through traditional sources would not see it as such a terrible offense, namely, an offense that would require one turn the person into the police. In another responsum, Torah li-Shemah no. 441, R. Joseph Hayyim writes as follows regarding one who has sex with a child under nine years old:
והרי זה הבועל כמי שמשחית זרעו ע”ג עצם ואבנים
In other words, he sees this as an issue of wasting seed, without any cognizance of the terrible damage done to the child.[18] Responsa like this are important in showing how, with increased knowledge, attitudes have changed. What our generation regards as the most vile behavior was often seen in a very different light in previous generations. This is the only limud zekhut for those who in past years did not take sexual abuse seriously.
R. Ysoscher Katz also called my attention to a relevant discussion on a Yiddish site. See here. One of the matters discussed is a responsum of R. Yair Hayyim Bacharach, Havot Yair no. 108.

I think any modern person reading it will be surprised to see that there is no emotion shown, no reflection on the difficult circumstances of the girl. Everything is examined from a halakhic standpoint. But this again shows how differently we approach these sorts of matters than was the case years ago.
If sexual abuse is treated just like another sexual transgression, then the lenient approach some rabbis have adopted towards it makes sense. After all, shouldn’t a rabbi want to give a sinner the opportunity to repent? Sexual sins have always been regarded differently than kashrut or Shabbat violations. If a rebbe was seen eating a hamburger in McDonalds or driving on Shabbat he would immediately be fired, without any opportunity to repent. But more leeway is given when it comes to sexual sins, the reason being, no doubt, that everyone understands the power of the evil inclination in this area. A good illustration of my point is seen in R. Aaron Walkin, Zekan Aharon, vol. 2, no. 30.

The responsum deals with a shochet who was seen entering the home of a “loose” woman. R. Zalman Sorotzkin didn’t know what do about it and wrote to R. Walkin. R. Walkin refuses to disqualify the shochet, and tells R. Sorotzkin that even if there were two witnesses testifying to the matter it would not change his mind, since this would only turn the shochet into a mumar le-davar ehad! It is true that not all rabbis would have been as lenient as R. Walkin,[19] but the fact that this great posek ruled the way he did is quite significant.[20]

Finally, I am curious to hear what some of the lawyers reading this post have to say about the following: Some time ago, I was contacted by a man who wanted to talk to me about being an expert witness for the defense in the appeal of a sexual abuse conviction. The case is actually one of the worst we have seen. I was told that my role would only be to answer questions about sexual mores in the hasidic world, in particular, how they understand tzeniut. While I am far from an expert on this, not being from that world, the defense team wanted an academic on the stand. (Needless to say, there are academics who would also be much better choices than me.) .

Nothing came of this discussion, and I myself decided that I would have nothing to do with the case after learning the particulars, which are indeed sickening. My question is as follows: We know that defense lawyers are not personally tainted even if they represent horrible people. We recognize that this is their job. My sense is that people would not give the same leeway to an expert witness, and he would be viewed very negatively, as one who was helping to free a sexual abuser. Yet I would like to get some feedback from the lawyers. If I would have agreed to be called to the stand to answer general questions about halakhah and tzeniut, does the fact that I was part of the defense team’s strategy mean that I would be “helping” the defense? It was made clear to me that my role would be to simply to answer general questions and I would have nothing to do with the defendant per se. Another way of framing the question is, would it have been immoral for me to agree to this role if, after having examined the evidence, I was convinced that the defendant committed terrible crimes and  should remain in jail?  

5. For the runoff quiz I asked the following:

A. What is the first volume of responsa published in the lifetime of its author?
B. There is a verse in the book of Exodus which has a very strange vocalization of a word, found nowhere else in Tanach. (The word itself is also spelled in an unusual fashion, found only one other time in Tanach). The purpose of this vocalization is apparently in order to make a rhyme. What am I referring to?
Some got the answer to the first question, and others got the answer to the second question. But only one person, Peretz Mochkin, got the answers to both.
The answer to the first question is the responsa volume Binyamin Ze’ev (Venice, 1539), by R. Benjamin Ze’ev of Arta.
The answer to the second question is the word אתכה in Ex. 29:35. It is spelled and vocalized the way it is in order to rhyme with the word ככה that appears earlier in the sentence.
וְעָשִׂיתָ לְאַהֲרֹן וּלְבָנָיו, כָּכָה, כְּכֹל אֲשֶׁר-צִוִּיתִי, אֹתָכָה
One of the sources that refers to this text is Zev Grossman, Darkhei ha-Melitzah be-Sefer Tehillim. This is a very interesting book on aspects of grammar in Tanach. Here is the title page, with an approbation of sorts from William Chomsky. I don’t know of any other book that puts the approbation on the title page, and in this case the approbation is in English. (William Chomsky, incidentally, is the father of Noam Chomsky.)

One of the things Grossman points out in his book is that there are many examples of verses where we find words in non-grammatical forms in order that they rhyme. Here is just one example, from Psalms 5:8:
וַאֲנִי–בְּרֹב חַסְדְּךָ, אָבוֹא בֵיתֶךָ;    אֶשְׁתַּחֲוֶה אֶל-הֵיכַל-קָדְשְׁךָ, בְּיִרְאָתֶךָ
In context, the final word, ביראתך, means “in fear of you”, even though this is not grammatically correct. This form is used to make the rhyme, because if one were applying grammatical rules it would not be spelled this way.
At the end of the Hebrew section of the book, Grossman has a page listing his published books.

As you can see, he also produced a set of gedolim cards. When I was young, in the 1970s, there were gedolim cards. I know this because I collected them.[21] But I never imagined that they existed already in the early 1950s.
6. In my post of January 13, 2013, I wrote: “R. Meir Schiff (Maharam Schiff) is unique in believing that one without arms should put the tefillin shel yad on the head, together with the tefillin shel rosh. This is the upshot of his comment to Gittin 58a.” I saw this comment of Maharam Schiff many years ago, and unfortunately did not examine it carefully before adding this note. As R. Ezra Bick has correctly pointed out, Maharam Schiff is not speaking about wearing tefillin shel yad on the head to fulfill the mitzvah, but only stating that this is a respectful way to carry the tefillin shel yad if you have to remove it from your arm. This has no relevance to what I wrote about someone without arms (unless he has to carry the tefillin shel yad).

[1] In The Limits of Orthodox Theology I listed numerous rishonim and aharonim who understood Ibn Ezra’s hints to mean that there are post-Mosaic additions the Torah. I have added to this list in various blog posts, and we are now up to around thirty-five different sources. Yet until now I overlooked an important text, namely, a comment by Tosafot. See Tosafot ha-Shalem, ed. Gellis, to Gen. 12:6 (p. 14):
זהו אמרו ואם איננו כן יש לו סוד, כי כוונתו שזה לא כתבו משה אך נכתב אחר שנכבשה, וכן דעתו בהרבה פסוקים
Tosafot rejects this opinion, stating:
 ואנחנו לא ניאות בזה הדעת שכל התורה כתבה משה מפי ה’ בלא חילוק ושנוי.
It is significant that Tosafot does not refer to Ibn Ezra’s interpretation as heretical. For another source that assumes that Ibn Ezra believes that there are post-Mosaic additions in the Torah, see R. Aharon Friedman, Be-Har ha-Shem Yeraeh (Kerem be-Yavneh, 2009), p. 30.
[2] I am aware of no evidence that the rishonim in the Islamic world interpreted these passages in a fundamentally different way than the Ashkenazic rishonim. As noted in The Limits of Orthodox Theology, R. Joseph Ibn Migash openly accepted the viewpoint that Joshua wrote the last eight verses of the Torah.
[3] “Two Notes on the Commentary on the Torah of R. Yehudah he-Hasid,” in Michael A. Shmidman, ed. Turim (New York, 2008), pp. 245-246. In his just published The Intellectual History and Rabbinic Culture of Medieval Ashkenaz (Detroit, 2013), p. 32, Ephraim Kanarfogel writes: “The availability of this kind of interpretational freedom and variety also allowed Hasidei Ashkenaz to be comfortable with Ibn Ezra’s stipulation of verses that may have been added to the Torah after the revelation at Sinai.” 
[4] I deal with this in my forthcoming book, where the relevant citations will be found.
[5] See here
http://www.moreshet.co.il/web/shut/shut2.asp?id=68707
[6] Rosenzweig wrote: “We, however, take this R to stand not for Redactor but for rabbenu [our rabbi]. For whoever he was, and whatever text lay before him, he is our teacher, and his theology is our teaching.” See Dan Avnon, Martin Buber: The Hidden Dialogue (Lanham, 1998), p. 50.
[7] Sherlo’s answer is not clear. He was asked about the Seventh Principle, that Moses’ prophecy is superior to all others. Rather than replying to this, he answers that there were amoraim who did not think that Moses wrote the last verses of the Torah. This, however, relates to the Eighth Principle, not the Seventh. None of the amoraim who thought that Joshua wrote the last verses assumed that he was on Moses’ prophetic level, so Sherlo’s answer is really a non-sequitur.
[8] In recent years I have seen many examples of this. Some extreme statement or ban is attributed to a haredi gadol, and commenters on haredi news sites declare that Gadol X could never have made such a hurtful and counterproductive statement. These commenters argue that it must be the “askanim” who are responsible for this. (I specifically remember such arguments in the first few days after the ban on Making of a Godol was announced.) When a few days later it becomes clear that the statement is accurate, and was indeed made by the gadol, what then are these people to do, people who just a few days prior were so adamant in rejecting the position? 

People convincing themselves that their leaders could not really mean what they say is obviously not merely a haredi issue. Here is what Paul Veyne writes: “Under France’s Old Regime, people believed and wanted to believe in the king’s kindness and that the entire problem was the fault of his ministers. If this were not the case, all was lost, since one could not hope to expel the king the way one could remove a mere minister.” See Did the Greeks Believe in Their Myths (Chicago, 1988), p. 91.

[9] Regarding the Sefer Torah found by Hilkiah, R. Jacob Emden, Birat Migdal Oz (Zhitomir, 1874), p. 152a, claims that Josiah was unable to read the old Hebrew script in this Torah, and that is why it had to be read to him. For a rejection of this view, see R. Jacob Bachrach, Ha-Yahas la-Ketav Ashuri u-le-Toldotav (Warsaw, 1854), pp. 47-48.
[10] The division of the Pentateuch into different books is itself quite ancient. See R. Hayyim Hirschensohn, Seder la-Mikra (Jerusalem, 1933), vol. 1, p. 52.
[11] As mentioned already, the Bible Critics of whom I speak don’t really believe that it was “found”.
[12] There is another unusual tradition that appears in Yemenite texts according to which the entire Torah (and also the rest of the Bible) was forgotten by the Jews during the First Exile, and Ezra later reconstituted it from memory. See R. Saadiah ben David, Midrash ha-Beur, ed. Kafih, vol. 2, p. 676. See also here.
[13] Mavo le-Torah she-Baal Peh, ed. Zini (Jerusalem, 2002), pp. 25-26.
[14] See also Bezalel Naor, The Limit of Intellectual Freedom (Spring Valley, 2011), pp. 77, 253. In Deut. 17:18 it says about the king: וְהָיָה כְשִׁבְתּוֹ, עַל כִּסֵּא מַמְלַכְתּוֹ–וְכָתַב לוֹ אֶת-מִשְׁנֵה הַתּוֹרָה הַזֹּאת
For a rejection of the view that the words “Mishneh Torah” refer to Deuteronomy, see Bachrach, Ha-Yahas la-Ketav Ashuri u-le-Toldotav, p. 70.
I have often heard the notion expressed, in line with Ibn Ezra to Deut. 4:14, Nahmanides to Lev. 8:38 and in his introduction toDeuteronomy, and Abarbanel in his introduction to Deuteronomy, that all of the mitzvot were given at Sinai or soon after. I don’t think this is the simple meaning of the Torah. After all, there are loads of mitzvot in the book of Deuteronomy, and this was years after the revelation at Sinai. Apparently, Nahmanides’ viewpoint was motivated by his dogmatic assumption. R. Bahya ben Asher, Commentary to Gen. 24:22, and Radbaz did not share Nahmanides’ outlook, with Radbaz writing: ודברי [הרמב”ן] תימה הם בעיני. See She’elot u-Teshuvot ha-Radbaz, no. 2143. Radbaz has a very provocative formulation in this responsum, and I am not sure what to make of it.
אין הכי נמי שצוה במצוות רבות בערבות מואב וכמה מצוות מצינו שאמרן משה לישראל ולא נאמר בהם צו את בני ישראל או דבר אל בני ישראל אלא משה יושב ודורש והכל יודעין שהכל מפי הגבורה
The words משה יושב ודורש are found in Bava Batra 119b where it means that Moses was expounding on a certain biblical law. As these words are used here, however, they appear to mean that Moses generated new mitzvot by means his יושב ודורש. This is not the same as God directly informing Moses of these new commandments, and I don’t know any earlier source that portrays mitzvot as originating in this fashion. It is also contradicted by how Maimonides describes the revelation of the Torah in his Eighth Principle.
               
Yet I am not certain about this, since the passage immediately following the one quoted above seems to offer a different perspective: 
וכל המצוות המחודשות אשר במשנה תורה הקב”ה אמר למשה בערבות מואב ומשה אמרן לישראל בכלל שבאר להם המצוות אשר כבר נאמרו וכל מה שנתחדש בהם מפי הקב”ה הוא ומשה לא דרש דבר מדעתו.
[15] See R. Eliah Shapiro, Eliah Rabbah 669:17.
[16] Avat Nefesh is discussed here.
[17] One student told me that he would often cite Kierkegaard.
[18] Both of these responsa, and others as well, are analyzed by Dr. Yitzhak Hershkowitz in a forthcoming article. I thank him for sharing his article with me prior to publication.
[19] For more stringent rulings, see R. Yekutiel Yehudah Greenwald, Ha-Shohet ve-ha-Shehitah ve-Sifrut ha-Rabbanut (New York, 1955), pp. 86ff.
[20] In Between the Yeshiva World and Modern Orthodoxy, p. 211 n. 172, I refer to R. Walkin as R. Jehiel Jacob Weinberg’s “short lived successor to the rabbinate of Pilwishki.” Some have wondered how I know this information, and indeed there is nothing about this in Eliezer Katzman’s articles on R. Walkin in Yeshurun vols. 11 and 12. That R. Walkin was rav of Pilwishki is found in R. Weinberg’s article about the town in Kitvei R. Weinberg, vol. 2, p. 390. In a letter to R. Kook, R. Walkin asks his advice on whether he should accept the rabbinate of Pilwishki. See Iggerot la-Reiyah (Jerusalem, 1990), no. 151. The date given in R. Walkin’s letter to R. Kook is Heshvan 5684 (1923), but this can’t be correct, as by this time R. Walkin was the rav of Pinsk. The original must say תרפ”ב not  תרפ”ג.
[21] A few readers might remember my bar mitzvah party, where some of these gedolim pictures were turned into posters. Also, smaller blow-ups were placed on each table as the table identifier. While most of the posters were thrown out, I saved one. When I attended JEC in Elizabeth for high school, I brought in the poster made from this picture of R. Elchanan Wasserman, and hung it on my classroom wall..

Everyone in the class thought this was very nice. One day I came to school and the poster was gone. Someone told me that R. Pinchas Teitz had taken it down. I couldn’t for the life of me understand why he would do that. I didn’t know then what I know now, about how many people strongly opposed R. Elchanan’s viewpoints (e.g., R. Zvi Yehudah Kook wouldn’t allow R. Elchanan’s Kovetz Ma’amarim in Merkaz ha-Rav’s library. See Hilah Wolberstein, Mashmia Yeshuah [Or Etzion, 2010], pp. 192-193, 404). But even if I knew that, this would not have been a reason for R. Teitz to take down the poster. I went to see him, first to get my poster back, and also to understand why he took it down. He explained that since we had a minyan in the classroom, it was improper to have a picture of a man on the wall, even if this man was R. Elchanan.



The Book of Disputes between East and West

The Book of Disputes between East
and West 
or 
A Treasury of Alternate Customs from the Land of Israel and from Babylon 
Translated and Annotated by Leor Jacobi 
Based primarily on the Margulies Edition
with additions from the Appendices of the Miller and Lewin Editions

Menahem Av, 5772
Jerusalem
After the translation of the text itself, various
additional items are added, some of them never before published. Also included
is a translated summary of major sections of Margaliot’s introduction, along
with comments and updates.
Round brackets reflect text found in only certain
Hebrew manuscripts as indicated by Margulies in his
Hebrew edition.
Square brackets contain English insertions of this
translator.
1.                   
People of the East sit while reading the Sh’ma. The
residents of the Land of Israel stand.
2.                   
People of the East do not mourn for a baby [who has died]
unless he has reached 30 days [of life]. The residents of the Land of Israel
[mourn] even if he is only a day old. (He is like a fully-grown groom
[=man]) 
3.                   
People of the East will allow a nursing mother to marry within
twenty-four months of the death of her baby. Residents of the Land of Israel
require her to wait twenty-four months, lest she come to kill her son.
4.                   
People of the East redeem the
firstborn with twenty-eight (and a half) royal pieces of silver. Residents of
the Land of Israel use five shekels, which are equivalent to seven (and a
third) royal pieces of silver.
5.     
 People of the East exempt a mourner [from observing laws and
customs of mourning, if the relation expired just] before a festival, even a
moment [before]. Residents of the Land of Israel only exempt a mourner from the
decree of seven days [of mourning] if at least three days have elapsed before
the festival.
6.                   
People of the East forbid a bride
from [having relations with] her husband for the full seven [days] for she is
considered to be a menstruating as a result of the relations. The residents of
the Land of Israel (say) that since his removing of her hymen is painful [it is
an external wound and] she is permitted immediately.
7.                   
The marriage contract of the
People of the East consists of twenty-five pieces of silver (and their dowry).
The residents of the Land of Israel (say) that anyone who [obligates himself]
to less than two hundred for a maiden or one hundred for a widow, is effecting
a promiscuous relationship.
8.                   
People of the East permit [the
use of] an oven (during Passover), based on the source: “[We may] roll the
Passover [lamb] in the oven at sundown.” (Mishnah Shabbat 1:11) Residents of
the Land of Israel (say): “Disregard the Passover [lamb] since it is a
sacrifice, and we [even] desecrate the Sabbath on account of it.”
9.                   
People of the East do not wash [=
ritual immersion] after experiencing a seminal emission or after relations
(since they reason that “we are in an impure land”). Residents of the Land of
Israel (do wash after a seminal emission or relations, and) even on the Day of
Atonement (for they maintain that those who have seen emissions should wash in
secret on the Sabbath and on the Day of Atonement) as a matter of course,
[which they learn] from the example of Rabbi Yosi bar Halafta, who was seen
immersing himself on the Day of Atonement.
10.               
People of the East permit gentile
butter [alternatively: cheese], (saying) that it cannot become impure.
Residents of the Land of Israel forbid it on account of (three things: because
of) milk which was expressed by a gentile (without a Jew observing him, because
of gentile cooking) and because of impure fat (which it might be mixed
with).
11.               
People of the East say that a
menstruating woman may perform all types of household duties except for three
things: mixing drinks, making the bed, and washing his face, hands, and legs.
According to the residents of the land of Israel, she may not touch anything
moist or household utensils. Only reluctantly was she permitted to even nurse
her child.
12.               
People of the East do not say
recite eulogies [alternatively: the prayer “tsidduk ha-din”] in
the presence of the dead (during the in-between days of the festival).
Residents of the Land of Israel do recite these before him.
13.               
People of the East do not rip up
a divorce contract. Residents of the Land of Israel rip it up. [Acc. to Lewin,
this may have originally referred to whether a mourner rips his garment during
the intermediate days of a festival.]
14.               
People of the East have mourners
come to the synagogue each day. Residents of the Land of Israel do not allow
him to enter, with the sole exception of the Sabbath.
15.               
People of the East do not clean
their posteriors with water. Residents of the Land of Israel do cleanse
themselves [with water], (based on the source:) A generation which considers
itself pure … [but has not cleaned itself from its excrement.] (Proverbs
30:12)
16.               
People of the East [permit one
to] weigh meat on intermediate days of the festival. Residents of the Land of
Israel forbid hanging it on a scale, even just to keep it away from rodents,
(based on the source: “One may not operate a scale at all.” – Mishna Beitza 6,
3) 
17.               
People of the East circumcise
[babies] over water and then dab [the water] onto their faces, (from here: “and
I will wash you with water, [rinse your blood off of you, and anoint you with
oil]” – Ezekiel 16:9)  Residents of the
Land of Israel circumcise over dust, from here: “Also, due to the blood of your
covenant have I sent your prisoners free from a pit with no water in it.”
(Zechariah 9:11)
18.               
People of the East (only) check
the lungs. Residents of the Land of Israel (check) eighteen types of disqualifications.
19.               
People of the East only recite a
blessing [= grace
after meals] over [a cup of] diluted wine.
Residents of the Land of Israel (will recite a blessing) when it is fully
potent.
20.               
When thurmusin [beans] and
tree-fruit are served to People of the East simultaneously, they recite the
blessing for fruit of the tree and set aside the beans. Residents of the Land
of Israel recite a blessing on the thurmusin, since everything is
included in “[the fruits of] the earth.” 
21.               
On the Sabbath, people of the
East break bread on two loaves, for they expound: “a double portion of bread”
(Exodous 16:21) [which fell on the Eve of the Sabbath]. Residents of the Land
of Israel break bread exclusively on a single loaf, so that the [lesser] honor
of the Eve of the Sabbath will not intrude upon [the honor of] the Sabbath. 
22.               
People of the East spread their
hands [= recite the priestly blessing] during fasts and on the on the ninth of
Av as part of the evening benedictions. Residents of the Land of Israel only
spread their hands during the morning services, with the sole exception of the
Day of Atonement. 
23.               
People of the East will not
slaughter a newly-born animal until the eighth day. Residents of the Land of
Israel will slaughter even a newborn, for [they maintain that] the prohibition
of the eighth day applies only to sacrifices.
24.               
People of the East do mention the
word mazon [=nourishment] in the blessings of grace after dining.
Residents of the Land of Israel consider mazon to be [the] central
[component of the blessings] (for everything else is peripheral to mazon]. 
25.               
A ring does not sanctify marriage
according to people of the East. Residents of the Land of Israel consider it
[sufficient to] fully sanctify a marriage. 
26.               
People of the East individually
redeem the second tithe and the planting of the fourth year. Residents of the
Land of Israel only redeem them in [the presence of] three [men]. 
27.               
The divorce contracts of people
of the East contain two ten-letter words [‘dytyhwyyyn’ and ‘ditiṣbyyyn’]. Those of the residents of the Land of Israel contain
three ten-letter words [the third is not known].
28.               
People of the East bless the
[bride and] groom with seven blessing. Residents of the Land of Israel recite
three [blessings, which have been forgotten].
29.               
According to people of the East,
the prayer leader recites the priestly blessing (before the congregation) [in
the absence of Kohanim]. Residents of the Land of Israel do not (allow the
prayer leader to recite the priestly blessing, for they expound [from the
verse]: “So they shall put my name” (Numbers 6:27) that it is strictly
forbidden for anyone to “put” the holy name), unless they are Kohanim. 
30.               
People of the East forbid bread
baked by a gentile, but will consume gentile bread if a Jew threw a piece of
wood into the fire. Residents of the Land of Israel forbid it (even with the
wood, for the wood neither forbids nor permits. When are they lenient? In cases
when there is nothing [else] to eat, and already a day or two have passed
without consuming anything. It was thus permitted to revive his soul so that
his soul should be maintained, but only from a [gentile] baker who has never
brought meat into his bakery, even though it considered a [separate] cooked
dish.) 
31.               
People of the East carry coins
from place to place on the Sabbath. Residents of the Land of Israel (say) that
it is forbidden to even touch them. Why? Because all types of work are done
with them.
32.               
People of the East recite: “meqadesh
ha-shabbat,” [who sanctifies the Sabbath]. Residents of the Land of Israel
recite: “meqadesh Yisrael v’yom ha-shabbat” [who sanctifies Israel and
the Sabbath day].
33.               
Among people of the East, a
disciple does not greet his master with: “shalom”. Among residents of
the Land of Israel a disciple greets his master [by saying]: “shalom
unto you, rabbi.” 
34.               
According to People of the East,
if a yevama [=a woman automatically betrothed to the brother of her
deceased husband] should marry [another man] without halitza [=a legal
procedure which frees her from this betrothal] and her yavam [=the
brother] should return from overseas, he performs the halitza (to her)
and she remains with her (second) husband. Residents of the Land of Israel
remove [=forbid] her from both of them. 
35.               
People of the East exempt a yevama
from halitza [only] once the baby is thirty days old. According to
residents of the Land of Israel, even if only the head and most of the body
emerged alive, and even for only a moment (before the father died), she is
fully exempt from halitza and from yivum [and may remarry
freely], (for they expound: “If he has left seed, she is exempt.”) 
36.               
People of the East turn their
faces (towards the congregation) and their backs towards the aron
[=closet containing the Torah scroll]. Residents of the Land of Israel [are
positioned with] their faces towards the aron.
37.               
According to people of the East,
one [scribe] writes the divorce contract and another signs along with the
writer. Among residents of the Land of Israel, one writes and two [others]
sign.
38.               
People of the East marry the
[bride and] groom on Thursday. Residents of the Land of Israel [marry] on
Wednesday, (according to the law: “a maiden marries on Wednesday.” – Mishnah
Ketubot 1:1)
39.               
People of the East perform labors
on the intermediate days of the festivals. Residents of the Land of Israel do
not do them at all. Rather, they eat and drink and exert their [energies in
learning] Torah, (for the sages have taught that: “it is forbidden to perform
labors on the intermediate days of the festivals.”) 
40.               
People of the East begin [the
initial act of] intercourse with genital insertion in the natural manner.
Residents of the Land of Israel use a finger [to break the hymen and enable
conception through the first act of intercourse. Alternatively, to verify
virginity.] 
41.               
People of the East observe two
festival days. Residents of the Land of Israel observe one, (as per the
commandment of the Torah.) 
42.               
People of the East forbid the
Kohanim from blessing the congregation if they have long, unkempt hair.
[Alternatively: with their heads uncovered]. Among residents of the Land of
Israel Kohanim do () [in fact bless the congregation with long, unkempt hair.] 
43.               
People of the East whisper the
eighteen benedictions while praying. Residents of the Land of Israel [pray] out
loud, in order that people should become familiar with them. 
44.               
People of the East count the Omer
only at night. Residents of the Land of Israel count during the day and at
night. 
45.               
People of the East circumcise
with a razor. Residents of the Land of Israel use a knife. 
46.               
(People of the East mix a remedy
for circumcision from donkey dung and cumin. The residents of the Land of
Israel do not do this.) 
47.               
According to people of the East,
the prayer leader and the congregation read the weekly [Torah] portion [of the
annual cycle] together. Among residents of the Land of Israel, the congregation
reads the weekly portion and the prayer leader [reads] the weekly [triennial]
orders.
48.               
People of the East celebrate Simhat
Torah [the festival of the completion of the Pentateuch] every year.
Residents of the Land of Israel celebrate it once every three-and-a-half years.
49.               
People of the East bless the
Torah while it is being [re-]inserted [into the Aron]. Residents of the
Land of Israel bless both while it is being inserted and while being removed,
(according to scripture and law, as per the verse: “and upon its opening the
entire nation stood.” – Nehemia 8:5)
50.               
(According to people of the East,
a Kohen may not bless the congregation until he has married. Residents of the
Land of Israel [allow him to] bless even before he has married a woman.)
51.               
People of the East do not carry a
palm branch [when the first day of the festival of Tabernacles falls] on the
Sabbath. Rather they take a myrtle branch. Residents of the Land of Israel
(carry both the palm and the myrtle on the first day of the festival which
falls on the Sabbath, according to the verse:) “And you should take for
yourselves” (Leviticus 23:40) [which is expounded to include:] “on the
Sabbath.” (Bavli Sukkah 43a) 
52.               
(Residents of the Land of Israel
permit the consumption of daytra fats. Residents of Babylon forbid it.) 
53.               
People of the East permit [the
consumption of] broad beans which a gentile has boiled, and also locusts.
Residents of the Land of Israel forbid it, (since they mix their boiled meat
with their boiled fruits [= produce].)
54.               
People of the East do not blow
sirens before the onset of the Sabbath. Residents of the Land of Israel sound
three sirens. 
55.               
According to people of the East,
Kohanim lift their hands [to bless the people] three times on the Day of
Atonement. Residents of the Land of Israel [bless] four times on that day: shaharit,
musaf, minha, and neila. 
56.               
(*). Residents of Babylon permit
[the consumption of] milk [from a cow] which a gentile has milked, [even]
without a Jew having watched him, provided that there are no unclean animals in
his flock. Residents of the Land of Israel forbid its’ consumption. (This item
is found in only one manuscript. Thus, Margulies doubts whether it is included
in the original collection; however, he maintains that it is historically authentic
and thus included it in the commentary section.)
Margulies’ running commentary has not been translated.
[Translator’s note on additional items:
There are four different types of items and it is
important to distinguish between them.
A. Items which appear in multiple versions of the Geonic
list collections, the main body of the present work.
B. Items which appear to have been added to certain
manuscript versions of the list after its “publication,” during the Geonic
period or shortly thereafter. This includes items 46, 50, and 56, and possibly
others. Since they may actually be remnants of the original list and do appear
in the manuscripts, Margulies and Lewin did include them in attempting to
produce a critical version of this text itself. [Elkin’s 1998 Tarbiz article
hints that the original work may have been smaller than Margulies supposed and
hence more of the text translated above would fall into this category.]
C. Items which are culled from external Geonic literature
and provide direct testimonial evidence for the historical validity of these
distinctions. They could conceivably have been included in the original list,
but for one reason or another were not. This describes Lewin’s additions, and
the first section of Miller’s additions.
D. Items which were deduced from prior Talmudic
literature. Kaftor w’Ferah seems to have pioneered this field, picked up
and extended by Miller and others. It should be noted that these items should
all be evaluated separately, as they do not necessarily constitute testimonial
evidence and rather, in some cases, may be merely theoretical.]
Additional items collected by R. Yoel HaKohen Miller
(1878)
From
Masekhet Sofrim:
56.               
People of the East recite kaddish and borkhu
with ten men. People of the Land of Israel [recite] with seven (10:7)
57.               
 People of the East
respond “Steadfast are you” after the reading of the prophets while sitting.
Residents of the Land of Israel [respond] while standing. (13:10)
58.               
 People of the East
fast before Purim. People of the Land of Israel [fast] after Purim, based on
Nikanor. (17:4, from Tosefta)
59.               
People of the East recite Kedusha each day. People of
the Land of Israel only recite it on the Sabbath and Festival days. (Tosafot
Sanhedrin 37b ad. Loc. Mknp, citing Geonim
Compiled
by Miller from Kaftor w’Ferah of Rabbi Ashtori HaParḥi (Isaac HaKohen ben
Moses, 1280-1366), deduced from talmudic sources:
60.               
People of the East do not ordain judges. People of the Land of
Israel do ordain. (Sanhedrin Chapter 1)
61.               
People of the East conclude [the threefold benediction]: “for
the land and the fruit.” People of the Land of Israel [conclude]: “for the land
and its fruit” (Berakhot, 6th chapter)
62.               
People of the East first plow and then sow seeds. People of
the Land of Israel first sow and then plow. (Sabbath, 7th chapter)
63.               
People of the East do not chase after idol worship [in order
to destroy it]. People of the Land of Israel do chase after it. (Sifre Devarim
Re’eh 61)
64.               
People of the East do not collect fines. People of the Land of
Israel do collect in court. (end of Ketuvot ch. 3…)
65.               
People of the East permit a brown citron [for use among the
four species]. People of the Land of Israel forbid it. (Sukkah, ch. 3)
66.               
People of the East grind with a small mortar on a
festival day. People of the Land of Israel forbid it (Beitza, ch. 1)
67.               
People of the East [formally] begin the meal [and apply its laws]
once the belt has been released. People of the Land of Israel [begin] once the
hands have been washed. (Shabbat, ch. 1)
68.               
People of the East maintain that one who purchases a slave from a
gentile, who does not wish to become circumcised [immediately], may postpone
and continue deliberations up to twelve months. People of the Land of Israel do
not allow any delay lest sanctified food become defiled through contact with
him. (Yevamot 48b)
69.               
People of the East do not transfer bones of the dead from little
caves to small holes in caves [where presumably whole cadavers could not fit,]
in order to bury other dead. People of the Land of Israel do transfer [bones].
(Rav Hai Gaon, as cited by Ramban, in Torat
ha-adam)
Collected by
Miller from Sefer Erekh
Millin
by Rabbi
Solomon Judah
Loeb Rapoport (SHIR)
70.               
People of the East first marry and then learn Torah. People of the
Land of Israel learn Torah first and then marry. (Kiddushin 29b)
71.               
People of the East recite nineteen blessings. People of the Land
of Israel recite eighteen blessings. (Rabbenu Yeshaya ha-Zaqen,
RID, in
his commentary to Ta’anit, cited here)
72.               
People of the East do not mention “dew” during the summer. People
of the Land of Israel do mention it. (PT Ta’anit ch. 1, Berakhot ch. 5)
73.               
People of the East are not concerned with “pairs.” People of the
Land of Israel are concerned. (Pesahim 110) [in all manuscript and printed
versions of the Talmud known to me it appears in reverse and was apparently
copied by mistake here.]
    I would now
like to present some very special additions of Rabbi Benjamin Wolf Singer
(1855-1930). R. Daniel Sperber published a
volume of his hiddushim/novella. See his biography of the author
here and here. Much more about him later. I hope to devote a future
post to Rabbi Singer and his brother.
      These notes
have never before been published, and were found in the form of his handwritten
notes in the back of his personal copy of Miller’s edition of the work, now
housed in the Bar Ilan University central library. The notes follow the extra
hiluqim of Kaftor v’Ferah, ShIR, and Miller which we have just translated
above. Apparently, they inspired Rabbi Singer to continue their work on the
very same page! His notes look like this:
(Click for large, high-resolution images)

 

What follows is the best I
could do for a transcription. All of the main points are clear, but not all of
the references. Even this I couldn’t have done without a lot of assistance from
my friend R. Yehezkel Druk, who is responsible in no small part for the many
corrections and additions in Moreshet L’Hanhil’s volumes of the new Friedman
Shulhan Arukh.

Hopefully, some of the
readers viewing at home can decipher some more of this. If you can, please
comment! A translation and more follows.
תוספות חלופי מנהגים
של ר’ בנימין זאב זינגער
א. מחלמ”נ [=מחלפי
מנהגים?] דבבבל לא קפדו אטבילת קרי עיין ברכות כ”ב. ובא”י קפדו. ע’ ירושלמי
שם פ”ג ה”ב, תמן נהגין כו’ ע”ש.
ב. בבבל שובתין מתוך
מריעין, שבת לד: מנהג אבותיהן בידיהן. ע”ש.
ג. בבבל קרו הלל בר”ח
ובא”י לא. תענית כח: מנהג אבותיהן בידיהן. ע”ש.
ד. בבבל קרו פרסא עי’
(חולין) פסחים צג: וצ. ולהיפך בא”י קרו רק ד’ מילין. עי’ ירושלמי ברכות פ”א
ה”א ושם נסמן [וירושלמי שבת סוף פרק קמא עד ד’ מיל ועיין יומא כ:] ואותה ?הכחיי?
עצמה דרבי יהודה דאיתא בפסחים פרסא היא בירושלמי במילין. והא דבחולין קכב: עד ד’ מיל
דאמר בשם רבי ינאי ורשל”ק [ריש לקיש] בני ארץ ישראל. ועי’ ברכות טו ע”א [אבל
לאחוריה אפילו מיל אינו חוזר [ומינה] מיל הוא דאינו חוזר הא פחות ממיל חוזר] סוטה
מו: [וכמה א”ר ששת עד פרסה ולא אמרן אלא רבו שאינו מובהק אבל רבו מובהק שלשה
פרסאות] סנה’ ה: [ותניא תלמיד אל יורה הלכה במקום רבו אלא אם כן היה רחוק ממנו שלש
פרסאות כנגד מחנה ישראל] סוכה מד: [אמר אייבו משום רבי אלעזר בר צדוק אל יהלך אדם
בערבי שבתות יותר משלש פרסאות] ושם נראה דראב”ץ [=רבי אלעזר בר צדוק] בבלי
היה מדאמר בלשון פרסי ועי’ תו'[ספתא] ב”ק פ”ח מ”ט [אין פורסין
נשבין ליונין אלא אם כן היה רחוק מן היישוב שלשים ריס]  ל’ ריס (והיינו ד’ פרסי) ועי’ נדה כד: תניא אבא שאול אומר ואי תימא
רבי יוחנן כו’ ורצתי אחריו ג’ פרסאות
ה. לדעת בני א”י
ד’ מפתחות ביד הקב”ו ולדעת הבבלי ג’ עיין ריש תענית ומאיר עיני חכמים דף מב: וכיוצא
בזה ברכו’ ג’ ע”ב רבי אומר ד’ משמרות רבי נתן ג’ ונראה שבא”י קיימו מספר
ד’ ובבל ג’
ו. ירושלמי פ”ק
דראש השנה תמן חשן [תמן חשין לצומא רבה תרין יומין]  ? יומא רבה ב’ יומי’ ועי’ סה”ד [סוף הלכה ד’] שאבוה… בשמת ע”י
זה [פני משה מסכת ראש השנה פרק א: “תמן חשין לצומא רבא תרין יומין. בבבל היו
אנשים שחששו לעשות מספק ב’ ימים יה”כ ולהתענות ואמר להן רב חסדא למה לכם
להכניס עצמיכם למספק הזה שתוכלו להסתכן מחמת כך הלא חזקה היא שאין הב”ד
מתעצלין בו מלשלוח שלוחים להודיע לכל הגולה אם עיברו אלול ואם אין שלוחין באין
תסמכו על הרוב שאין אלול מעובר. ומייתי להאי עובדא דאבוה דר’ שמואל בר רב יצחק
והוא רב יצחק גופיה שחשש ע”ע וצם תרין יומין ואפסק כרוכה ודמיך. כשהפסיק מן
התענית ורצה לכרוך ולאכול נתחלש ונפטר. ועל שהכניס עצמו לסכנה מספק לא הזכירו שמו
להדיא ואמרו אבוה דר’ שמואל בר רב יצחק”.]
ז. ירושלמי ברכות פ”ב
ה”א כך אינון (בבלאי) נהגין גביהון זעירא לא שאל בשלמיה דרבה
ח. עי’ ירושלמי סוכה
פ”ד ה”א ושביעית פ”א ה”ז ועיין שם פ”ד ה”א או’ רבי
יוחנן לרבי חייה בר בא בבלייא תרין מילין סלקון בידיכון מפשיטותא דתעניתא וערובתא
דיומא שביעייא. ורבנן דקיסרין אמרין אף הדא מקזתה ועי’ בבלי סוכה מד. ??
ט. יוסף בבבלי יוסי
בירושלמי עי’ ?יבמות? קג ע”א
7. ברכות פ”ח ה”א
ירו’ אמר אר”י ב”ר נהיגין תמן במקום שאין יין ש”צ עובר לפני התיבה
ואומר ברכה אחת מעין שבע וחותם במקדש ישראל ואת יום השבת. ועי’ ?רא”ש? ?? י”ב
שלא מצאנו כן בבבלי
8. עיין ברכות נ. בבבל
נהגי כרבי ישמעאל ברכו א”ה המבורך – וירושלמי פ”ז דברכות ה”ד [נדצ”ל:
ה”ג] נראה דבא”י כר”ע

9. ירושלמי ברכות פ”ז
ה”ד [נדצ”ל: ה”ג] נראה דבא”י כשקראו כהן במקום לוי לא בירך
שנית ובבבל מברך. עיין שם. תוס’ גיטין נט: [ד”ה כי קאמרינן באותו כהן, והשווה
תוספת לוין סו’ י”ג וי”ד]
10. פסחים
נו: בענין ברוך שכמל”ו [שם כבוד מלכותו לעולם ועד] דבא”י אומרין אותו
בקול רם מפני המינין ובנהרדעא בחשאי שאין שם מינין מב.. לר.. גבי ר’ אבהו ב’. [אולי
הכוונה לצטט ויכוח של מין עם ר’ אבהו.]
Here is a loose translation without the references:
  1. In Babylon they were lax regarding the requirement
    for one who experienced seminal emissions [Ba’al Qeri] to immerse
    himself in a mikva. In the Land of Israel they were stringent.
  2. In Babylonia they commence the Sabbath in the midst
    of the blowing of the shofar teru’ah — They retain their fathers’
    practice. (Sabbath 35b)
  3. In Babylon, they read the hallel on the day of
    the New Moon. In the land of Israel they did not (Ta’anit 28b, “They
    retain their fathers’ practice”).
  4. In Babylon [a large unit of length] is referred to as
    a “parsa.” On the other hand, in the land of Israel, it is referred
    to as “four mil.” [miles]
  5. According to the understanding of the sages of the
    Land of Israel there are four keys in the hands of the holy one, blessed
    be he. According to the understanding of the sages of Babylon, there are
    three.
  6. In Babylon there were sages who fasted two Days of
    Atonement due to uncertainty as to on which day the new month begins.
  7. The Babylonians do not greet [rabbinic authorities],
    so Z’eira [respected their custom and] did not greet Rabbah when he
    visited.
  8. Rabbi Yohanan said to Rav Hiyya bar Bo: “The
    Babylonians have brought two [customs] up with them: full prostration on
    the fast days and the taking of the willow on the seventh day [of Sukkot].
    The Rabbis of Caesarea added bloodletting [to the list] as well.
  9. In the Babylonian Talmud we find: “Yosef.” In
    the Jerusalem Talmud: “Yosi.”
  10. (7) “There, in Babylon, when there is no wine, the
    prayer leader descends to the bima and recites the one blessing in
    place of seven and concludes with meqadesh Israel v’et yom hashabbat.”
    However, in the Babylonian Talmud we do not find this.
  11. (8) In Babylon the custom followed Rabbi Ishmael in
    reciting “borkhu et hashem hamevorakh.” It appears that in the Land
    of Israel they followed Rabbi Akiva [instead].
  12. (9) Is seems that in the Land of Israel, when a Kohen
    was called to the Torah reading in the absence of a Levite, he would not
    recite a second blessing. In Babylon he recites the benediction.
  13. (10) In the Land of Israel they recite “Barukh
    shem kavod malkhuto l’olam va’ed”     out loud because of the heretics. In
    Nehardea they whisper it since there are no heretics there.
As you can see, the numbering switches from Hebrew to
Latin after tet. This is probably because the tet resembles a
six, so he followed it up with seven. Remember, these were just personal notes,
not intended for publication, obviously. Rabbi Singer’s mind was on more
important things, as the erudition of his notes speaks for itself. Anyway, who was Rabbi Singer? We’ll return to that at the end of
this post. Here in the middle of the work there is a citation apparently to a
Yalkut in Parshat VaYeshev, but I can’t make heads or tails of it.

Appendix to
Lewin’s edition. The articles originally appeared in Sinai 10 and 11.

Like
Zinger, Lewin also noted the additional Hiluqim in Miller’s volume and
decided to add more. Instead of adding exclusively from Talmudic sources, Lewin
leaned more on Geonic sources, of which he was the great master.  Some of these additions are quotations, and
some Lewin formulated himself.
1.                   
After completion [of the section from the public reading], the
reader blesses: “Blessed are you … ruler of the world, rock of ages, righteous
of all generations, the steadfast deity …” Then the congregation promptly
rise and say: “Steadfast are you, he, the Lord, our G-d, and steadfast is your
word. Steadfast, living, and lasting is your name and it’s utterance. Always
will you rule over us forever and ever.” This is one of the disputes between
the sons of the East and the sons of the West, for the sons of the East respond
while sitting whereas the sons of the West [respond] while standing.
2.                   
In Zoan, Egypt, which is called Fustat [today part of old
Cairo], there are two synagogues: one for the people of the Land of Israel, the
al-Shamiyin congregation [=the “Yerushalmi”, this name is
still used today to refer to a Jewish Yemenite branch] (It is named after
Elijah, of blessed memory [?, see below]). The other is the congregation of the
people of Babylon, the al-Iraqiyn congregation. They do not observe the
same customs. (Selections from Yosef Sambari, Seder HaHakhamim, Neubauer
I, p. 118. On page 137 it states that the congregational synagogue then still
in use was built before the destruction of the second temple in Jerusalem.)
One, (the people of the Land of Israel) stands during kedusha, while the
other, (that of the residents of Babylon) sit during kedusha. (Rabbi Avraham
ben HaGra, Maspiq l’ovdei hashem. In
the 1989 edition published by Nissim Dana, page 180, the opinions appear in
reverse order)
3.                   
It is written in the responsa of the Geonim that the residents
of the Land of Israel recite kedusha only on the Sabbath, since it is written
[in Isaiah 6:2] that the Hayot have six wings. Each wing sings praises
corresponding to the days of the week. When the Sabbath arrives, the Hayot say
to the holy one, blessed be he: “We do not have another wing!” He replies to
them: “I have another wing which sings praises to me, as in (Isaiah 24:16):
“From the end [literally: wing] of the world we have heard song.” (Tosafot
Sanhedrin 37b, ad. loc. Mikanap, Miller 59)
4.                   
We do not recite kadish or borkhu with
any less than ten [men]. Our sages in the west recite it [in the presence] of
[even] seven [men]. They explain themselves according to the verse: “bifroa
p’raot …” (Judges 5:2) according to the number of words [in the verse = seven.
See also verse 5:9.] Some recite it with even six [men] since [the word] borkhu
is the sixth [word in the verse]. (Some base this opinion on Psalms 68:27,
which contains six words – Avudraham)
5.                   
R.
Joseph said: How fine was the statement which was brought by R. Samuel b. Judah
when he reported that in the West [Israel] they say [in the evening], “Speak
unto the children of Israel and thou shalt say unto them, I am the Lord your
God, True.” (Berakhot 14b, Soncino translation). Still now, several cities [alternatively:
regions] in the Land of Israel observe this custon in the evening. They reason
that shema and v’haya im shamoa, [the first two paragraphs], are
observed both day and night, whereas va’yomer is only observed during
the day [as per Mishna Berakhot 2:2]. (Hilkhot Gedolot 1, Hilkhot Berakhot 2,
p. 37, second Hildesheimer edition)
6.                   
The
sages of the Land of Israel behave as follows: they recite the evening prayers
and later they read the Shema in its proper time. They are not concerned
about connecting [the blessing ending with] geula to the evening
prayers. (Sha’arei Teshuva 76, See Otzar HaGeonim for a list of numerous
rishonim and collections who cite this responsum.)
7.                   
Conserving
a festival which begins after the Sabbath, it is still maintained in the Land
of Israel that a fourth blessing is recited separately… but as for us, Rab
and Samuel instituted for us a precious pearl in Babylon: “Just judgements and
true Torah.” (attributed to Rav Hai Gaon, Otzar HaGeonim Berakhot, Perushim p.
46)
8.                   
On
the final day of the festival miṣwot
u’ḥuqim and bekhor are read (Megilah 31a, acc. to mss.
Munich and rishonim). Rav Hai Gaon explains this passage as a mnemonic sign: 1.
There are those who read “for this miṣwa” (Deut. 30:11) and this is
still read in the Land of Israel. 2. There are those who read from “im be’ḥuqotai
until “qomemiut.” (Lev. 26:3-13) 3. There are those who read: “kol
ha’bekhor” (Deut 15:19). We read “kol ha’bekhor.” (various
sources, Otzar HaGeonim Megillah, p. 62, no. 230)
9.                   
Upon
the conclusion of the Day of Atonement, residents of the Land of Israel blow qashraq
[=tashrat, a serious of various tones]. Residents of Babylon only
sound one plain blow in remembrance of the jubilee. [From here until the end,
Lewin composed most of the statements himself based on the sources he
provides.]
10.               
The
three fast days – Ta’anit Esther – are not observed consecutively, but
rather, separately: Monday, Thursday, and Monday. Our sages in the Land of
Israel were accustomed to fast after the days of Purim, on account of Nicanor
and his company. Also, we delay [unpleasant] payment and do not predicate it.
(Masekhet Sofrim 17)
11.               
Residents
of the Land of Israel would not actually fully prostrate themselves on fast
days. Residents of Babylon would actually fully prostrate themselves.
12.               
Residents
of the Land of Israel did not read Hallel at all on the day of the New
Moon. Residents of Babylon read it while skipping sections [an abbreviated
version].
13.               
Among
residents of the Land of Israel, the first reader from the Torah recites the
beginning blessing, and the last reader recites the final blessing. According
to the residents of Babylonian, each and every reader blesses before and after
the reading, since [members of the congregation may be] coming and going
[during the readings and thus miss one or the other].
14.               
In
the absence of a Levite, residents of the Land of Israel would call a second
Kohen to read from the Torah in his place. Residents of Babylon would call up
the very same Kohen again who just read the first portion.
15.               
Residents
of the Land of Israel permitted writing [Torah] scrolls on the skins of pure
animals even if they were not slaughtered according to specifications of
dietary laws. Residents of Babylon forbade this since they were not
slaughtered.
Translated summary of selected sections of Margaliot’s
introduction
Margulies’ Table of Contents
[The entire Table of Contents of Margulies has been
translated. However, only a summary of chapter 2 and the text of the original
work itself have been translated here.]
Chapter 1
Relations between Babylon and the Land of Israel from the
close of the Talmudic period until the close of the Geonic period
1.                   
The end of the Talmudic Period
2.                   
The Geonic period
3.                   
Attitudes towards divergent
customs until the Geonic period
4.                   
Attitudes of Babylonian Geonim to
the customs of the Land of Israel
Chapter 2
The Book of Disputes between East and West, the nature of
the work and its use by Rabbinic and Karaite Jews.
1.                   
The name of the work
2.                   
The author, his period, and
locale
3.                   
Purpose of the work
4.                   
Characteristics and scope of the
book
5.                   
Language and sources
6.                   
Legal sources and historical
development of the disputes
7.                   
Use of the book by Geonim
8.                   
Use of the book by Rabbinic legal
authorities
9.                   
Use of the book by Karaites
10.               
Scholars who have studied the
work
Chapter 3
Textual sources of
the Book of Disputes, Printed Editions and Manuscripts
1.                   
Text versions, families and
formation
2.                   
The first group
3.                   
The second group
4.                   
The third group
5.                   
This edition’s presentation and
stemmatic diagram of source       relationships
6.                   
The varying order of the disputes
in all of the versions
7.                   
The text
Presentation of the actual text with variant apparatus
Sources, History, and Development of the Disputes
[Systematic Commentary]
Chapter 1 is a general introduction to the context of the
work and is not translated at this time
Chapter 2 Summarized in translation
1.                   
The name of the work
The work appears in numerous manuscript versions and
cited by various Rishonim. Virtually every single one has a different title for
the work – all variations on the same descriptive theme. [Both the variation in
titles and the descriptive nature suggest that the work may have been not only
anonymous, but also untitled. It was simply a list drawn up by a sage, copied
and possibly added to.]
The majority of sources contain a variation of the root ḥlq
in the title, including the
first printed edition (1616, starts at middle of page)
included at the end of Bava Kamma in Yam shel Shelomo, by the
great Ashkenazi sage Rabbi
Solomon Luria, better known as Maharshal (1510-1573).

I don’t know who decided to include the work in
Maharshal’s edition, it led some to believe that the Maharshal himself
collected it, a point justly disputed by Rav Avraham ben HaGra [see below].
Margulies is perplexed as to why Miller chose a title
based on the root ḥlp, which only appears in a few secondary sources like
Ravya, Rosh, and Tur.
[Lewin also followed Miller on this point. It seems that
the selection of this root was designed to minimize the controversial nature of
the work. As Lewin stresses in his introduction, this is a work of divergent
customs, not disputes regarding actual Torah law. The reader can evaluate both
titles, which have themselves both been translated here as “alternates”. In
this writer’s opinion, both of the roots may be “alternate” variations of one
original word (probably from the root ḥlq) as the letters peh
and qof are graphically similar. A supporting example of variation
between these very same words is found in The Epistle of Rav Sherira Gaon in
the “French” manuscript branch. See Lewin’s
edition, page 22, left column, note 19.  There you will find a manuscript with
precisely such an alternate reading.
Also of note is that certain Islamic literature which
records divergent legal opinions is referred to as kḥilaf. See
here, beginning of intro. On the other hand, an 11th
century Karaite work is entitled Ḥilluq ha-qara’im we-ha-rabbanim]
2. The author, his period, and locale
The author is anonymous, and we have no clue as to his
identity.
The first serious recorded attempt to date the work is by
Rabbi
Abraham ben Elijah of Vilna, the son of the famous GRA, in
his work Rav
P’alim, p. 126. He was uncertain as to whether
the work was authored by amoraim or in a later period. [His chief concern here
is disproving the erroneous theory that the Maharshal himself collected
the work from various rabbinic sources.] Miller was able to hone in closer,
from the savoraim at the close of the Talmudic period to the beginning
of the Geonic period. Margulies provides considerable evidence that the work
was composed around the year 700. That is, after the Arab conquest and before Rav Yehudai Gaon.

According to Miller, our author was a native of the Land of Israel and familiar
with Babylonian customs through travel to Babylon. Western Aramaic and Western Hebrew forms abound. In fact, the very
composition in Hebrew suggests composition in the land of Israel, the language
of the “Minor”
Talmudic tractates produced there during the Geonic
period, as well as Hebrew translations of Eastern Aramaic Babylonian Geonic works themselves. Margulies points out
that since Miller’s publication, new evidence has emerged from the Cairo geniza
which shows that after the Arab conquest, Babylonian Jews migrated to the Land
of Israel and formed their own separate congregations in Tiberias, Ramla, and Mivtzar Dan (Panias-Banias), with the most likely speculative location for our
author being Tiberias, which was a native Torah center that may have already
boasted a Babylonian community during the Talmudic period.
3. Purpose of the work
According to Miller, the work was designed to oppose the
Babylonian side in the dispute between the two great Torah centers. He points
out that many more explanations are offered in support of the
“Yerushalmi” side than the Babylonian. Later, Miller appears to
backtrack and seems to conclude that the work is simply meant to impartially
catalog the various discrepancies.

Margulies accepts the claims regarding the basic “Yerushalmi”
orientation, but understands the purpose more subtly. Rather than taking a
confrontational stance, the work merely seeks to explain and rationalize the
local customs and decisions to the new Babylonian immigrants who were not aware
or respectful of the locals. No attempt is made per se to reject the validity
of the Babylonian customs themselves and at times the author troubles himself
to explain them only.
          4. Characteristics and scope of
the book

The items in the work are haphazardly arranged with only occasional grouping according to topic. It is nowhere near complete
in cataloging all of the items of dispute. According to Miller, the complete
version of the work has not yet been transmitted to us. [This understanding may
underly many efforts to expand on this list, discussed in the Appendix.]
Margulies disagrees, on the basis of the numerous manuscript examples at his
disposal. According to him, the author never meant to compile an exhaustive
list.
          5. Language and sources
It has already been pointed out that the work was
composed in “Yerushalmi” Hebrew. A list of words and phrases is
provided by Margulies along with parallel examples from Talmudic and Geonic
“Yerushalmi” literature. He supposes that many more parallels would
be found in halakhic works from the period and region which are no longer
extant.
[This section is of
considerable philological interest especially regarding Geonic material in
Hebrew which may be of uncertain provenance.]
          6. Legal sources and historical
development of the disputes

          Most of the items can be
documented partially in other Talmudic and Geonic literature. As would be
expected, there is a high level of correspondence between the
“Yerushalmi” side and the Jerusalem Talmud; also, between the
Babylonian side and the Babylonian Talmud.
Most of the items appear to predate the collection and stem from the Talmudic period, many probably earlier, from the  Tannaitic period.
In some cases, a Tannaitic dispute may have been
transmitted unresolved to both regions and eventually decided differently in
each locale in a purely internal manner. Conversely, sometimes entirely
external factors may drive the discrepancies in later periods as well.
Of special interest is following the disputes from the
Geonic period until the end of the period of the Rishomin signified by the publication of the Shulhan Arukh. In
general, the Babylonian side prevailed as their hegemony increased, but in a
number of cases, the position native to the Land of Israel in fact dominated,
especially when it did not contradict any explicit statements in the Babylonian
Talmud. This tradition was especially strong in Tsarfat and Ashkenaz (France
and Germany) as opposed to Sepharad (Spain), which historically remained tied
to the Babylonian Geonim. The influence of the Land of Israel side is
especially noticed in the house of study of the great Rashi and his students (items 2, 3, 6, 7, 10, 13, 14, 18, 19, 25, and more).
The period following the publication of the Shulhan Arukh is not discussed systematically in Margulies’ commentary
since to a large extent geographic boundaries were erased by the free transfer
of books from one region to another and a great amount of cross-fertilization
occurred. Nevertheless, it is noted that a number of disputes remain with us to
this very day between Ashkenazi and Sepharadi communities.
          7. Use of the book by Geonim
In Babylonian Geonic responsa literature, a number of
disputes are addressed, but apparently not through direct exposure to the work.
It is more likely that the inquirers from the Land of Israel or North Africa
might have been motivated in their queries by exposure to concepts from the
work.
However, the later European collections of Geonic material did see fit to
gather material from this work into their nets. The collection known as Sha’are Tsedeq includes no fewer than eleven items culled from the
disputes.
In a few cases, items from the collection are attributed
to Babylonain Geonim themselves, but it is difficult to rely on any of these
attributions and most were clearly added by the later compiler.
          8. Use of the book
by Rabbinic legal authorities

Many of the great authorities were most probably unaware of the work as they
never cite it or it’s contents. Others who do cite it generally cite only
sections known to them through second or third-hand rabbinic sources.

Geographic location was clearly a major factor. In France and Provence use was
much more pronounced than in Spain. The work seems to have reached different
locations at different times. By the 14th century the work seems to
have been lost for the most part, as only citations from by previous
authorities are ever quoted.
One reason for the neglect of this work may have been
it’s brevity. [For example, the usual explanation for the grouping of the
twelve prophets in one scroll, and today in one volume, is so that the small
books would not become lost.] However, a more compelling reason appears to be
the negative impression that the work made on certain authorities, most
notably, Nahmanides, Ramban (Avodah Zara 35b). It was (correctly) perceived
that the work contains material which contradicts the Babylonian Talmud,
already considered supremely authoritative. Methods of study which stressed a
proper historical understanding of all legal points of view would become common
in rabbinic circles well before the modern period, but at the time they were
not yet developed. If an opinion could not be utilized for determining the
halakha, it was not deemed worthy of further inquiry. Nahmanides is the only
early Spanish sage who even mentions the work, so it is not at all surprising
that he considers it outside the pale of legal precedent.

Possibly, the Spanish Sages resisted the work as a result of the utility that
Karaites received from it and quoted from it. They may have suspected the work
of being a Karaite forgery.

In contrast, early Provencal authorities made ample use of the work. They
include: Rabbi Abraham ben Isaac of Narbonne (Eshkol), Rabbi Isaac ben
Abba Mari of Marseilles (Ittur), and Rabbi Abraham ben Nathan of Lunel (Manhig).
The textual versions cited by the Provencal sages are similar to those
found in the Geonic Responsa collections which appear to be most original.

Ashkenazi sages also utilized the work widely, but the stylized textual
citations indicate that they were generally quoting secondary and tertiary
rabbinic sources rather than the work directly. The sages include: Rabbi
Eliezer bar Nathan of Mainz (Ra’avan, Even Ha-Ezer), Ravya, Tosafot, Rabbi
Eliezer of Metz (Yereim), Sha’arei Dura, Machzor Vitry.

From the fourteenth century on mention and discussion of the work seems to
virtually disappear. A most notable exception is Rabbi Ashtori HaParḥi (Isaac
HaKohen ben Moses, 1280-1366) in his Kaftor w-Ferah, who traveled from
France to the Land of Israel, on which his work focuses. He cites the work
according to versions not attested to otherwise among French sages.
[Furthermore, he took an interest in expanding upon the principle of the work
as seen in the additions which Miller culled from it. See below after the main
body of the translation.]

Students of the Maharam of Rottenberg, such as Hagahot Maimoniot, Mordechai,
and Rabbenu Asher ben Yehiel (Rosh) mention the work haphazardly.
Other sages who cite the work include Rikanati, Tashbatz, Agur, Or Zarua, and
Shiltei Giborim. None of the early or later sages undertook an
elucidation of the entire work – they left this important work for us to do!
9. Use of the book by Karaites
Karaites took a much keener interest in the disputes than
Rabbanites. This is not at all surprising. The 
Rabbanites claimed to possess an
authoritative Talmudic tradition handed down from the earlier sages. Every
known dispute amongst the Talmudic sages themselves was utilized in order to
argue against these claims. From Beit Hillel and Beit Shammai to disputes
amongst the Babylonian Geonim themselves, the Karaites seized upon the disputes
between East and West eagerly.

The first Karaite sage to quote the work is Jacob Qirqisani (10th century). Since he cites the work in
an overtly apologetic manner (read: missionary), he was wont to exaggerate and
even forge sections of the work. Thus, it goes without saying that his work
cannot be utilized uncritically. Nevertheless, despite this cautionary note,
his early explanations can at times be very useful in understanding the nature
of the disputes themselves.
He explains his interest in the disputes very clearly.
According to him, the disputes between East and West were more extensive than
the disputes between the 
Rabbanites and the Karaites, but nevertheless, claims
of heresy were never leveled and a spirit of tolerance reigned between the
communities. So too, the Karaites should be accepted by the 
Rabbanites . This
stance led him to exaggerate at times the extent of the disputes which were
considered normative. Thus, even though the majority of the disputes concern
extra-legal customs, he would attempt to thrust them into the body of the legal
arena as exemplars of radical opinions. If at times he may have honestly
misunderstood the disputes, in some of them it appears that he was making a
cynical attempt misrepresent them and create confusion to advance his
rhetorical purposes.

One example which stands out is a dispute which Qirqisani appears to have
invented out of whole cloth, an out and our forgery not attested to in any
other versions of the work:
“People of Babylon do not permit one to betrothe a woman
with [the fruit of] the seventh year. People of the Land of Israel permit this.
Therefore, the betrothals of that year in the Land of Israel are not considered
by the Babylonians to effect marriage, and their children are not valid.”

[According to Mordekhai Akiva Friedman (Madaei HaYahadut 31), a maculation of taba’at
to shevi’it resulting from graphic similarity between the letters tet
and shin led item 25 to be misconstrued by Qirqisani in this manner. If
Lewin did not mention this possibility, at the very least, he noticed the
similarities and listed them together in his collection.]
From Qiqisani’s time on, Karaites have continued to
utilize the work in their own disputations with Rabbanites. As we saw earlier,
this may have led to the work’s falling out of favor among Rabbanites in
regions where Karaites were active.
          10. Scholars who have studied
the work

1.                   
Rabbi Abraham
ben Elijah of Vilna, the son of the  GRA, in Rav
Pe’alim
2.     Dr. P. P. Frankl in Monatscrifft,
1871 (Heft 8), p. 352-363 (available through compactmemory)
3.                   
R. Yoel HaCohen
Miller, 1878
4.                   
A.
H. Weiss, Dor
Dor v’Dorshav, Additions to vol. 3, p.
285-, 1883
5.                   
Rabbi Gershon Hanoch
Leiner, the Admor of Radzin,
in his commentary to Orchot Hayyim, mentions that he has composed commentaries
on 50 disputes from the work. This has not been published and according to
Margulies may no longer be extant.
6.                   
R.
Yehudah Meshil HaKohen, Kneset
Hokhmei Israel 1, 60
and 91, 1893
7.                   
R.
Ezra Altshuler, Tosefta, 1899. According to Lewin and
Margulies, he plagiarized Miller (3 above) without mentioning him at all, even
copying his printing errors. Someone should do a study on this work and figure
out if the accusations are justified. Both Eliezer Brodt and I suspect that R.
Ezra did, in fact, add plenty of his own material and didn’t see anything wrong
with copying transcriptions from a previous edition. This version of the Hiluqim
has
been republished
with additional notes from the Aderes.
8.                   
R.
Hayyim Stahon, Eretz Hayyim, 1908
9.                   
R.
Ya’akov Shor, Ner
Ma’aravi  in HaMe’asef, 1910 [for a complete listing of
all issues containing this serial column, see Simha Emanuel’s index, entry 98]. These were
reprinted in כתבי וחדושי הגאון רבי יעקב שור זצ”ל.
10.               
R.
Dr. Benjamin Menashe Lewin, Otzar HaGeonim, [Otzar Hiluf Minhagim, 1942. Lewin’s edition was prepared
more or less simultaneously as Margulies’ edition. Forthcoming from R. Yosaif
Mordechai Dubovick
is a study on the various versions of Lewin’s publication.]
11.               
Dr.
Dov Revel, Horev
1,1.
12.               
[After
over a Jubilee of reliance on the two critical editions of Marulies and Lewin,
without further critical study, Ze’ev Elkin re-opened the field with his
1997 Tarbiz article focusing on the earliest
manuscripts of the work, which are all of Karaite origin. He questioned several
of Margulies conjectures. Elkin later became a member of the Knesset.
13.               
R.
Dr. Uzi Fuchs, Netuim
2003. An
examination of the Rothschild manuscript and its role in the development of the
various textual variants.]
Hillel Neuman in Ha-Ma’asim 2011 discusses several items from
this related work in passing. This is a new revised version of his 1987
master’s thesis
(Hebrew University).
Chapter 3          Textual
sources of the Book of Disputes, Printed Editions and Manuscripts
[This technical section has not been translated, except
for the last section, the text itself, found at the beginning of this article.
According to Elkin’s 1997 article the textual analysis may be in need of an
update and revision.]
Now that we are finished duscussing the Hiluqim, we can
return to the question about who Rabbi Benjamin Zev Singer was. Rabbi Singer
published Hamadrich, a Talmudic anthology, in collaboration with his brother, Rabbi Abraham Singer
of Varpalota in 1882 and Das Buch der Jubiläen (Die Leptogenesis) in 1898
as “Wilhelm Singer.” Also, Neue Lehrmethode
für den hebräischen Lese- und Sprachunerricht in der ersten Klas in 1867, with an additional Hebrew subtitle, אור חדש. This is a slim German Sefer Mesores
for learning the Hebrew alphabet, davvening, handwriting, and selected phrases
in Judeo-German.Singer is identified as a hauptschullehrer, a
schoolteacher.
R. Daniel Sperber published a volume of Rabbi Singer’s
novella/hiddushim on Tractate Shabbat in 1986 and included a biography of him:
That biography is incorporated in a list
of his many unpublished Hebrew works still in
manuscript which are housed in boxes at Bar Ilan. Apparently University of
Toronto houses manuscripts of his writing in German (maybe Hungarian, too, but
he wrote both of his books in German. I noticed that at least one of the items
Singer listed above (four mil) is apparently given fuller treatment in these
manuscripts. Given the sheer quantity of his output, I suspect that many more
items in the list are as well.
On the title page of the book, Singer lists a couple of
learned review articles in German of the Miller volume.  See it here:

One review appears in Graetz’s Monatsschrift,
1879, pp. 87-91 (Heinrich Graetz took over as editor after Zecharias Frankel);
the other is in Brüll’s Jahrbuecher,
vol. 4, pp. 169-173. (Both are available at www.compactmemory.de.)  A couple of
other articles are listed here as well, after the fact. At the top, the
aforementioned 1871 Monatsschrift article of Dr. P. P. Frankl (listed by
Marguleis), p. 357. At the bottom, an additional Brüll Jahrbuecher article
from the first volume of the series, p. 44, where Talmudic customs of the Galil
and Judah are discussed.

It is quite
interesting to see that the Rabbi Singer brothers, the authors of HaMadrich,
featuring haskamot of R. Yitzchak Elchanan Spector, the Netziv, and (over a
hundred!) gedolim, had an openness to modern scholarship which accommodated
Graetz and even Brüll, a reform rabbi who for a time headed the congregation in
Frankfurt opposite R. Shimshon Raphael Hirsch. This openness is also manifest
in the very existence of R. Singer’s volume on the book of Jubilees, Seforim
Hitzoni’im.
Another point worth
mentioning is that HaMadrich is essentially a collection of chapters to
be learned by beginning and intermediate students all in one volume with an
eclectic running commentary. That work was briefly touched on in
this forum previously, but it would be more
interesting to explore in greater detail exactly how eclectic it was once we
have a clearer picture of the depth of lomdus and of academic scholarship
displayed by the authors of this first “Artscroll.”
This “openness” of the Singer brothers did not appeal to
everyone. R.
Yehoshua Monsdhein’s article on HaMadrich details the controversy surrounding the work. It is difficult
to piece together exactly to what extent the opposition was to any change
whatsoever in the education process, and to what extent it was towards
entrusting the enlightened Singer brothers to this task.
If it can be compared
were these haskamot procured (many of them probably after the controversy
already developed!) any more successful than the ones in Rabinowitz’s Dikdukei
Sofrim? How many lomdim actually learned with HaMadrich? It was only
reprinted once and then again twenty years ago.
Back to the Hiluqim notes, It seems to me
that except for the first Monatsschrift 
review, the additional three references were added in pencil by
another hand, perhaps R. Singer’s brother R. Abraham, who worked closely with
him on HaMadrich.  But probably
not the other way around. I consulted with R.
Yechiel Goldhaber – he thinks that these notes are
in the same style as the published hiddushim on Shabbat, and that seems quite
reasonable.
Thanks to Lucia
Raspe for deciphering these journal references, and to Sara
Zfatman for the assist.
—
Translator’s
note: Thanks to Avi Kessner for suggesting and sponsoring this project, also
for proofreading and valuable comments. I am indebted to Sander Kolatch and the
Kolatch Foundation for general assistance during the year. Eliezer Brodt
provided several useful references, without which this post would have been
much poorer. The Guetta, Jacobi, and Peled families who continue with their
unfailing support, especially my wife Dana, who makes it all possible. This translation
is dedicated to my father, Nathan ben Tzipporah, in the hope that he should
enjoy a complete and speedy recovery.


On the Times Commonly Presented for Birkat HaL’vana: Part 2

On the Times Commonly Presented for Birkat HaL’vana: Part 2

By Avi Grossman

Continued from here

The Truth About The Beth Yosef’s Position

A while ago I received this from a disputant (I have not edited any of his writing):

In the Shulkhan Arukh (chapter 426 paragraph 3) it was ruled that one has to wait till seven days have passed, and the Rema did not override the halachik ruling of the Mechaber (the Shulkhan Arukh). Therefore this is the basic core law for Sepharadim and Ashkenasim alike. However, there is an Ashkenasi minhag to make the Kiddush Levana blessing after only three days. This minhag being based on the Gr”A (the Gaon miVilna) as brought down by the Mishna Brura in se’if katan (clause) 20. This minhag has on what to be based, however less than three days, is not the minhag at all. Nevertheless, if bedi’avad (if someone has not done according to the aforementioned minhag, and already has done otherwise i.e. less than three days), if the person made the blessing of Kiddush Levana, Rav Nevensal writes (in his commentary on the Mishna Brura in the name of Rav Shlomo Zalman Auerbach) that he accomplished the mitzva of Kiddush Levana and his blessing was not a brakha levatala, ( a blessing in vain.) This is also understood from the Shar haTziyun.

I have omitted his subsequent attack on my credentials and character. I also believe, that he has made a number of errors:

1. The Beth Yosef’s actual opinion is not as he represented it. 2. His method of discerning the Rema’s opinion is faulty. 3. He does not allow for the numerous times wherein the halacha and the common practice simply do not follow either the Rema or the Beth Yosef.[1] 4. Especially in Israel, there are many groups, usually those associated with Religious Zionism and inspired by the teachings of the Vilna Gaon, that seek to reintroduce the ancients’ practices as described by Hazal, and do not automatically accept later positions that contradict the classic understanding of Hazal. There are too many aspects of Jewish law that are also not even covered by the rulings of the Beth Yosef and the Rema.

I would now like to attempt to show what the Beth Yosef believed. Rabbi Yosef Karo was aware that the halacha, as stated by the Talmud and understood by the rishonim, was that birkat hal’vana should ideally be recited on the first of the month. In his commentary to Maimonides’s explicit ruling that birkat hal’vana be recited on Rosh Hodesh, he even cites the source for this rule. Moreover, Maimonides formulation is taken verbatim from the Yerushalmi in Berachoth 9:2, which also clearly means that the time for the blessing is Rosh Hodesh. The Beth Yosef then has much to say (a few paragraphs’ worth) about the Tur’s formulation of the relevant halachot, and finishes with one line about a much later, kabbalistic, non-talmudic opinion that the blessing should be delayed until seven days after the molad. It is impossible to properly understand his intent in the Shulhan Aruch before reading his longer dissertations in the Beth Yosef, and when we analyze the style he used to present many other halachot in the Shulhan Aruch, we see that when Rabbi Karo actually subscribes to a (usually kabbalistic) position that was explicated later in history as opposed to an earlier explicated halacha, he simply records that later opinion without mentioning the earlier differing opinions, or he may make mention of them and then dismiss them.

In order to see this most clearly one should read the actual text of the Shulhan Aruch as Rabbi Karo himself wrote it, without the interjections of the Rema. A good example is the laws of t’filln. In Orah Hayim 31:2 he writes straight out that it is forbidden to wear t’fillin on Hol Hamoed. This is the kabbalistic opinion, and he does not mention at all the opinion prevalent among the rishonim that t’fililn are meant to be worn on Hol Hamoed, because he dismissed it, and one cannot claim that he was honestly unaware of such an opinion, because in both his commentary to the Tur and the Mishneh Torah, he wrote about that opinion and its sources in the Talmud, and even explained why he rejected it despite the fact that it had been the near universal practice for centuries before him. (See here for more examples.)

However, with regards to the blessing on the new moon, Orah Hayim 426:1, he first states the straight halacha as recorded by the Talmud and the early commentators that “one who sees the moon in its renewal blesses…” and as he wrote in his earlier works, this was always understood to be ideally at the very beginning of the month. It is only in 426:2 that he brings the custom to wait until Saturday night, and in 426:4 he mentions to wait until after seven days. These three rules are all in conflict with each other. Which is it? The first of the month? Saturday night a few days in to the month, or a week after the beginning of the month?

The answer is that he presents the straight law as understood and received by generations, and then alternate practices that each have their own merit, but which do not and cannot trump the original rule. This is made clear when you also read what he wrote in 426:3, before mentioning the seven-day rule: the last time for saying the blessing is the fifteenth of the month. This shows that in 426:1 and 3 he defines the blessing’s set time as ordained by the sages and as to be followed, and only at the end does he mention an optional practice that does not readily fit the enactment. More importantly, if you look even more closely at the exact wording of the Shulhan Aruch you see that 426:2 and 426:4 are not discussing the precise ordained time for the blessing, but rather different issues entirely.

For our reference, here is the full text of Orah Hayim 426 without the Rema and further commentaries:

. א. הרואה לבנה בחדושה מברך אשר במאמרו ברא שחקים וכו‘.

ב. אין מברכין על הירח אלא במוצאי שבת כשהוא מבושם ובגדיו נאים ומיישר רגליו ותולה עיניו ומברך ואומר שלש פעמים סימן טוב תהיה לכל ישראל ברוך יוצרך וכו’.

ג. עד אימתי מברכין עליה עד ט“ז מיום המולד ולא ט“ז בכלל.

ד. אין מברכין עליה עד שיעברו שבעת ימים עליה.

A. One who sees the moon in its renewal blesses, “…Who hast through His speech created the heavens…”

B. We do not recite the blessing upon the moon unless it is the night after the Sabbath, when the reciter is perfumed and his clothes nice. He should raise his eyes high and stand straight, and bless. He should recite three times, “a good omen, blessed be, etc.”

C. Until when may he recite the blessing? Up until but not including the 16th day from the molad.

D. We do not recite the blessing upon [the moon] until seven days have passed on it.

And now for a brief point about an expression used here twice, which I emboldened in both the Hebrew and English. Our heroes have said the following, each in its own context:

אין שמחה אלא בבשר ויין

אין שמחה אלא תורה

אין שמחה כהתרת ספקות

אין שמחה גדולה ומפוארת לפני הקב״ה אלא לשמח לב עניים

Literally translated, each of these begins with “happiness is nothing but”, and each end differently. Respectively: meat and wine, Torah, resolution of doubts, and gladdening the hearts of the poor. How can these all be true? How can there be four ultimate forms of happiness? The answer is that this is the sages’ way of saying that with regard to a particular situation, there is something that can give someone the best feeling. When it comes to celebrating on a festival, the best way is to have a meal with meat and wine. With regards to achieving a sublime intellectual high, there is nothing like Torah study. With regards to feeling the joy of relief, there is nothing like resolving lingering doubts. With regards to doing something good for others, there is nothing greater than picking up those who are down. There is no contradiction.

Now, we can fully understand how to read the four rules of the Shulhan Aruch: The first rule tells us to say the blessing on the moon, and as we saw before, the running assumption of the rishonim and logic is that the first time is right at the beginning of the month. So too, the fact that the Shulhan Aruch places this chapter within the laws of Rosh Hodesh and then says in the third rule that there is a deadline, the assumption, and the only way the first rule can be understood, is that one may start to do recite birkat hal’vana when the month starts. Also, the Shulhan Aruch uses the same exact language as the Yerushalmi and Maimonides did to describe saying the blessing at the first sighting of the new moon, and the Shulhan Aruch has already shown us elsewhere that he knows the implication of using that language. The first and third rules thus form a pair, defining when to say this blessing. The second rule, which mentions Saturday night, is not contradictory, nor does it modify the objective time for saying the blessing. Rather, from the facts that a. it begins with that rabbinical term of speech “ein… ella…” and b. it then explains that it is so that he will be in a proper state of dress, it is telling us the proper mode of reciting this blessing. Dress nicely, smell good, stand straight, and take a good look at the moon. Consider this: Saturday night is not objectively the best time for saying this blessing which should be timed with the new moon regardless of the day of the week, as Rabbeinu Yona pointed out above, but rather it happens to be the time when one is still clean and wearing his Sabbath clothes, implying that if it were Saturday night and he were filthy, he gains nothing by reciting the blessing then, but if it were, say, Thursday night and he has just dressed up in a tuxedo in order to go meet an important personage, he should say the blessing on the moon if the opportunity presents itself. The subsequent gloss of the Rema also shows that this statement of the Beth Yosef is not a hard and fast rule about the timing of blessing. The way the third rule is introduced, it is Rabbi Karo’s way of saying “the best way to perform this commandment, the most gevaldikke way, is to do it like this…” More so, we can now understand why for many authorities (including Maimonides and the Vilna Gaon) the entire discussion of birkat hal’vana in Massechet Sof’rim did not enter their halachic calculus. In the context of the chapters preceding it, Massechet Sof’rim is not making a straightforward halachic statement about the halachic timing of the blessing, but rather about the manner in which it was ritually performed. Finally, the fourth rule also begins with that terminology, “ein… ad…” (the ad replaces ella because ella is used to describe things not defined by time, like gladdening and eating, whereas ad describes a period of time) because, once again, it is Rabbi Karo’s way of saying, “al pi qabbala, the most awesome way to perform this commandment for those who are mystically inclined and on a high enough level is to…”

Therefore, Rabbi Yosef Karo did not rule against saying the blessing on the new moon on Rosh Hodesh, nor did he rule that it may only be recited after seven days from the molad. It is clear that our master’s writings mean that the blessing was meant to be said on Rosh Hodesh, and that there are two conflicting middat-hasidut practices to delay it, and most of the time it is impossible to satisfy both if understood literally, and, as I have shown, the first of those practices is less about when to say the blessing and more about how to say the blessing, and the second is not halacha for the masses. I have written this to defend what he really said, and how his words have been twisted by those who came later, because there is a common claim made that his opinion was to delay the blessing until seven days have passed from the molad under all circumstances, and does not allow for other opinions. The writer above also claimed that this is also the implicit opinion of the Rema (!) and therefore should also be the default practice of all Jews, Ashkenazim and Sephardim alike, to wait until at least a week from the molad in order to recite birkat hal’vana. If our master, the Beth Yosef, had meant as that writer says, he should have written 426:1 thusly:

הרואה הלבנה אחר שעברו עליה שבעה ימים מברך וכו׳

“One who sees the moon after seven days have passed over it blesses…”

thereby combining both 426:1 and 4:26:4 in order to accurately reflect such a purported view, and then we would still be left with the superficial problem of 426:2 adding the practice to wait until Saturday night. But the Beth Yosef did not write the halacha like that because he actually understood the rules as I have presented them here, namely, that he ruled like Maimonides and the sages of old, that the true time for saying birkat hal’vanna is on Rosh Hodesh or as early in the month as possible, and that the seven-day rule is, like he implied in the Beth Yosef, a practice of those who live according to esoteric and uncommon kabbalistic ideas.

Four years after I first wrote this response, I discovered that Rabbi Moshe Elharar of Shlomi in the Northern Galilee has made this point, and has a video online where he declares as much. See here. He maintains that the practice of Moroccan Jewry is and always to recite birkat hal’vana on Rosh Hodesh, if possible.

I also discovered in recent months that there is a school of kabbalistic thought, the Arizal among them, that maintains that al pi qabbala, birkat hal’vana should of course be said on Rosh Hodesh. Indeed, there is a host of modern-day kabbalists and Hasidic rebbes who advocate and maintain this practice. Rabbi Raphael Aharon, a prominent scholar and mekubal from the nearby settlement of Adam has an entire siddur dedicated to birkat hal’vana, Siddur Sim Shalom, and many of these points can be found in his accompanying essays.

Waiting For Exactly Seven 24-Hour Days?

If one were to adopt the mystical practice mentioned by Rabbi Karo, namely to wait seven days to recite birkat hal’vana, Rabbi Karo has already stated that those seven days are a colloquial seven days. This is also the case with regard to many other realms of halacha which deal with groups of days. He dismissed the notion that the final time for the blessing should be calculated me’et l’et, to the second, minute, chelek, or hour. However, just like the Pri M’gadim unilaterally declared that the Rema calculates the first time for the blessing exactly 72 hours after the average molad even though the Rema never even hinted at such a thing (see above), the calendar makers have taken a further step and decided that those seven days mentioned by Rabbi Karo should also be calculated by adding exactly 168 hours from the time of the molad. We can see what may have influenced the Pri M’gadim to make such a claim within the Rema’s opinion, but there is no reason whatsoever for any of us to then extend a possible stringency within the Rema’s opinion to the opinion of the Beth Yosef.

A relevant recent example was Iyar 5775. The announced average molad was early Sunday morning on the 30th of Nisan (April 19, 2015), 1hour, 27 minutes, and 4 chalakim after midnight (6),[2] while the actual molad was a few hours earlier, at 8:57pm Motza’ei Shabbat (April 18, 2015) (7).[3] According to the traditional understanding of the Beth Yosef’s kabbalistic opinions, birkat hal’vana should have been recited the next Motza’ei Shabbat (the night of April 25), the beginning of the 7th of Iyar. Both moladot had occurred on a halachic Sunday, and this Motza’ei Shabbat was already a full week later than both, and it was also a night when many baalei batim would be in attendance at the synagogues, and the moon was clearly at least half full, yet the calendars declared that the it was too early for birkat hal’vana! By their calculations, despite the fact that the moon was already well into its eighth day, the earliest time for birkat hal’vana would only be sometime after midnight, a full 168 hours after the average molad, and at a time shortly after the moon would set that night. Instead, everyone was to have to wait for Sunday night, when attendance in the synagogue would be much less and the chances of cooperative weather would be diminished, thus depriving many unwitting people of the chance to recite the blessing that month.

The calendar makers grossly misrepresent the Beth Yosef’s opinion, and thereby cause many unwitting Jews to miss the proper times for reciting this blessing.

Additional Considerations

In a lecture recently uploaded to yutorah.org, R’ Schachter mentioned the opinion of the P’ri M’gadim (Yoreh Deah 15:2) regarding the eight-day waiting period between an animal’s birth and it becoming fit for sacrifice: the period is calculated as exactly 7 times 24 hours (me’et l’et) after the moment of its birth. R’ Schachter further mentioned that Rabbi Akiva Eiger (ad loc.) takes the P’ri Mgadim to task for this claim, as it contradicts the plain meaning of the relevant Talmudic sources which assume that the eight days are calculated according to the general rule of miqztath hayom k’chullo, that a part of the day is considered the entire day, just like with all the other similar calculations demanded by halacha. This is entirely analogous to he P’ri M’gadim’s opinion regarding birkat hal’vana, which would similarly be rejected by Rabbi Akiva Eiger.

In another lecture, available here, R’ Schachter discussed the issue of two-day Rosh Hodesh in Temple times: On which day of Rosh Hodesh were the additional sacrifices offered? While there is a Talmudic source that assumes that the sacrifices were only brought on one day of Rosh Hodesh, there is also Biblical evidence that even before the Temple was built, Rosh Hodesh was sometimes observed as two days, and even today, it is observed that way about half the time. At about six minutes in, R’ Schachter mentions an answer offered by Rabbi Soloveichik: In Numbers 28, we are bidden to offer the offering of the Sabbath, “olath shabbath b’shabbatto,” which literally means, “the Sabbath burnt offering on its Sabbath,” but which is rendered by Onqelos, “alath shabba tith’aveid b’shabba,” the Sabbath burnt offering should be made on the Sabbath.

Onqelos’s addition clarifies the meaning. However, in the subsequent paragraph describing the Rosh Hodesh offering, we read, “zoth olath hodesh b’hodsho,” literally “this is the [Rosh] Hodesh burnt offering on its Hodesh,” and we would expect Onqelos to render this along the same lines as shabbath b’shabbatto, but he does not. Instead, he abandons a literal translation with a one-word addition, and gives an explanation (which, by the way, is common. Whenever an anthropomorphism is used with regards to God, or whenever the halacha does not fit the literal translation, Onqelos does not translate literally): “da ‘alath reish yarha b’ithkhadathutheh,” which in Hebrew would be “zoth olath rosh yarei’ah b’hiddusho,” or “this is the New Moon burnt offering at the time of [the moon’s] renewal.” Rabbi Soloveichik offered that even if Rosh Hodesh were a two-day event, the special sacrifice of the beginning of the month should only be offered on the day of the renewal, that is, on the day of the two-day Rosh Hodesh that is observed as the renewal of the moon.

Thus, when the Shulhan Aruch (Orah Hayim 426:1) says hal’vana b’hiddusha, “the moon (this time described in the feminine form, l’vana, as opposed to the masculine hodesh, yarei’ah, yarha, or molad) in its renewal,” he means it as Rambam and Rashi meant it, on the first day of the month. The hiddush of the moon is by definition Rosh Hodesh.

It should not come as a surprise then that the Hafetz Hayim himself also was aware of this important halacha, and endorsed it. He held that me’iqqar hadin, according to the letter of the law, birkat hal’vana is to be said on Rosh Hodesh, and that although there are other practices to delay the recitation, none of them override the letter of the law. In Mishna B’rura, 426:20, he responds to the Shulhan Aruch’s proposition that we should wait for seven days to pass over the new moon before reciting the blessing, and mentions that “most Aharonim held that it is sufficient for the moon to be three days old for the blessing to be recited,” and for good measure he adds the P’ri M’gadim’s condition that those three days are calculated as exactly three time 24 hours, and then suggests that there is a way to maybe delay the recitation just a little bit more in order to also recite it on Saturday night. But then, he says something that only someone aware of the letter of the law will fully understand: “And some Aharonim, including the Vilna Gaon, are lenient even in this regard, [i.e., waiting about three days for birkat hal’vana], and they hold that it is not worthwhile to delay the commandment in any event, and therefore, one who practices like that certainly has on whom to rely, especially during the winter and the rainy season; certainly someone punctilious and quick to sanctify [the new moon] is praiseworthy.” Here, in no uncertain terms, the Hafetz Hayim champions those who would say birkat hal’vana at the very first opportunity. When, based on all of the available halachic sources, would that be, if not on Rosh Hodesh itself? Indeed, the primary source for this Gloss is the Magen Avraham ad loc., and there the Magen Avraham, explicitly mentions that the primary law is that the blessing is to be recited on Rosh Hodesh.

As an aside, I would like to dispute what R’ Schachter says in the first five minutes, namely why a particular day is Rosh Hodesh. As far as I understood, there are two reasons: when the Sanhedrin is functioning properly, a day is considered Rosh Hodesh when the court declares it to be Rosh Hodesh based on the testimony of valid witnesses who spotted the new moon, and when the Sanhedrin is not functioning, our set calendar considers only the moladoth of each Tishrei to determine days of weeks for Rosh Hashana, and once a particular year’s length is known, the first days of each month are then determined based upon alternating 30-day and 29-day months, with certain exceptions. Most importantly, the moladoth of the months that are not Tishrei have absolutely no bearing on when the individual rashei hodashim are celebrated, and I believe that the misconception was fostered by the new practice of announcing the molad each month, which leads people to believe that it somehow has weight in determining Rosh Hodesh. On the contrary, announcing the molad seems to be a very recent practice,[4] and one that I would argue the Beth Yosef and others would oppose, because it could lead the masses to think that the molad actually matters month to month. For example, many believe (mistakenly) that we announce the molad precisely because it is forbidden to recite birkat hal’vana either 72 or 168 hours have elapsed from that time. Some of the classical decisors may have tolerated this new practice, but they would certainly believe that if, for example, no one had a calendar to reference during the service, the announcing of the molad could be skipped.

* * * * *

Recently, I discovered the life and work of the prolific and tragic Rabbi Moshe Levi, a prize student of Rabbi Meir Mazuz. Lo and behold, in his treatise on the blessings, Birkat Hashem, he lists the prominent authorities, down to the Magen Avraham, who ruled that according to the straight letter of the law, birkat hal’vana should be said on Rosh Hodesh, and he himself rules that way.

This highlights an argument that is applicable elsewhere. It is well-known that the ideal time for the morning prayer is right at sunrise, which is when the morning sacrificial service is supposed to start in the Temple, and this was the practice of the wathiqin of Jerusalem. However, in Orah Hayim 281, the Rema mentions that the practice on Sabbath morning is to arrive at the synagogue later than on weekdays. It cannot mean that people show up later than they would on weekdays just to make sure that the amida prayer still starts at sunrise, because that would entail somehow abridging the recitation of all of the liturgy that precedes the amida, but that is not possible, because the practice is also to recite more psalms before the reading of the sh’ma and to recite a longer version of the blessings that accompany the sh’ma. The Rema is plainly stating that on the Sabbath, the morning service is delayed, and he even cites the explanation that it is based on what sounds like a d’rasha, that the verse that describes the Sabbath offering says that it is offered by day and not by morning. It must be said that the teaching in question is not a true d’rasha. It is not brought by Hazal, it is not followed by the halacha, as even on the Sabbath the morning lamb was offered at sunrise, and even in context, it is referring to the additional lambs brought after the morning lamb. Now, can one reasonably claim that because “the Minhag” is to pray later Sabbath morning, it is therefore wrong for some of us to pray at sunrise? After all, the Rema is fairly clear that that is the minhag. Of course it cannot be, but I dread the day someone will say that. This point was made implicitly by the Mishna B’rura, who pointed out that the assumption of Rashi was that in Talmudic times, the Sabbath morning service was also at sunrise. By giving this veiled reference, he is respectfully disagreeing with the practice endorsed by the Rema. Just because there is a practice to delay the performance of the commandment, it does not mean that the letter of the law may not be followed.

Similarly, there is a practice to delay the evening service the night of Pentecost. Now, it must be said the very idea postdates the Shulhan Aruch and the Rema, but the letter of the law is and always was that any Sabbath or festival can be accepted before the holy day officially starts, and that is considered a very meritorious deed. Can one reasonably claim that because “the Minhag” is to pray later Pentecost evening, it is therefore wrong for some of us to pray before nightfall? After all, the Mishna B’rura is fairly clear that that is “the Minhag.” Of course it cannot be, but I dread the day someone will say that. Just because there is a practice to delay the performance of the commandment, it does not mean that the letter of the law may not be followed. A few years ago I wrote about my surprise that Rav Aviner ruled that it is forbidden for Ashkenazim to begin the prayers before nightfall on Pentecost, thus ruling that that which the Rema did and the rest of the Ashkenazim did for centuries was against halacha.

Lastly, we come to the issue of birkat hal’vana, which, according to the letter of the law, should be on Rosh Hodesh. Can one reasonably claim that because “the Minhag” is to recite it some days later, it is therefore wrong for some us to say it earlier? After all, the printed calendar is fairly clear that that is “the minhag.” Of course it cannot be, but as punishment for my “sins,” I heard many times from those who should have known better that it may not be said earlier, despite the fact that it only takes a few hours of research to find that the letter of the law’s practice is actually endorsed by the sages, and Rashi, and Maimonides, and the Shulhan Aruch, and the Vilna Gaon, and the Mishna B’rura. Just because there is a practice to delay the performance of the commandment, it does not mean that the letter of the law may not be followed. On the contrary, the punctilious seek to perform commandments as soon as possible.

*****

I welcome any further insights on this matter. I hope and pray that reinstitution of the Sanhedrin and the adjustable calendar will lead to many more Jews seeking to find the appearance of the new moon as soon as possible, which in turn will lead to them understanding why the sages ordained a blessing on the phenomenon in the first place.

I would like to thank Rabbi Mordechai Rabinovitch and Rabbi David Bar Hayim for instigating the research that led to this work, Rabbi Herschel Schachter for his feedback on the first draft and Rabbi Moshe Zuriel for his warm encouragement and approbation.

[1] How many of us start to perform forbidden labors after Shabbat but before 72 minutes after sunset? Both the Rema and the Shulhan Aruch summarily prohibit such activity.

[2] Jerusalem Solar Time. According to Jerusalem Daylight Saving Time, it was 2:06am.

[3] 9:57pm according to Daylight Saving Time.

[4] For a comprehensive background to the minhag, see here.



New Writings from R Kook Part 1 by Marc B. Shapiro

New Writings from R Kook and Assorted Comments, part 1
by Marc B. Shapiro
20 Marheshvan,[1] 5771
I now want to return to R. Kook and discuss some of his writings that have recently appeared. This is the first of what will be a five part post. It will be followed by at least one other multi-part post also dealing with R. Kook’s new writings.
For those who have never read R. Kook and don’t understand why there is such excitement every time a new collection is published, I suggest you do the following: Take one of the volumes and sit with it for an hour, just going through it, page after page. Odds are that you will be hooked. The originality that you find, and the power of his writing, is just breathtaking. It is impossible not to sense the power of his spirit, and it draws you in.
Books will be written on R. Kook, focusing on the insights found in the recently published volumes. They will analyze what is original in these works and the evolution of his thought. My purpose is more limited as I just want to call attention to some passages that caught my attention and which I think are significant, not just in the context of R. Kook’s writings, but also for anyone interested in Jewish thought.
In 2006 R Kook’s Kevatzim mi-Ketav Yad Kodsho appeared, and we can thank Boaz Ofen for this. Included in this volume is what is referred to as the last notebook from Bausk, which was where R. Kook served as rabbi from 1901 until his aliyah in 1904. On pp. 66-67 we find what I think is R. Kook’s first discussion of evolution. Unlike his other writings, here R. Kook mentions that he is relying on Maimonides on how to deal to deal with it. He mentions that Maimonides assumes the eternity of the world when he seeks to prove the existence, unity, and incorporeality of God. Maimonides adopts this model so that his proof will be acceptable to everyone. R. Kook states that this is also how we should deal with the issue of evolution. In other words, even if we don’t accept it, we should, for the sake of argument, assume that evolution is correct and explain the Torah based upon this. This will mean that even people who accept evolution will see the truth of Torah. By rejecting evolution, and declaring that it is in opposition to the Torah, right from the start you are stating that Judaism has no place for those people who accept one of the major conclusions of modern science. It is noteworthy that this text does not have any of R. Kook’s later thought, which speaks of the theory of evolution as being in accord with kabbalistic truth.

Another early statement of his with regard to evolution is found in Shemonah Kevatzim 1:594. Here he says that it is very praiseworthy to attempt to reconcile the Creation story with the latest scientific discoveries. He says that there is no objection to explaining the Creation, described as six days in the Bible, to mean a much longer period. He also states that we can speak of an era of millions of years from the creation of man until he came to the realization that he is separate from the animals. This in turn led to the beginning of family life, in other words, “civilization”.
What R. Kook is saying is that the entire story of the creation of Adam and Eve is not to be viewed as historical. Rather, it is a tale that puts in simple form a long development of man’s intellectual and spiritual nature.[2] He doesn’t see this development as random, for he says that at the end of the long period it was a vision, or perhaps we should call it an epiphany, that offered man the perception that it was time to establish family life. It is, I think, obvious that the אדם referred to by R. Kook as beginning civilized life is not an actual historical man (i.e., Adam), but rather humanity as a whole.[3]

אין מעצור לפרש פרשת אלה תולדות השמים והארץ, שהיא מקפלת בקרבה עולמים של שנות מליונים, עד שבא אדם לידי קצת הכרה שהוא נבדל כבר מכל בעלי החיים, ועל ידי איזה חזיון נדמה לו שצריך הוא לקבע חיי משפחה בקביעות ואצילות רוח.
R. Kook also explains that the deep sleep God placed Adam in (Gen. 2:21) can be understood as representing the length of time it took for humanity to come to the awareness of the idea of “bone of my bones and flesh of my flesh”. In other words, R. Kook sees the opening chapters of Genesis as representing a long period of development of the most important ideas of civilization, that of the dignity of man and the importance of family and the bond of marriage. Nothing here is as it appears, and literalism is out of the question.
We find in R. Kook’s most recently published book, Li-Nevokhei ha-Dor, more passages that relate to what I have been discussing.[4] This is an early work which was being prepared for publication and was released on the internet against the wishes of the editor. It has now been widely distributed and there is no reason not to cite it. R. Kook saw this book as a modern day Guide for the Perplexed, so obviously there is a great deal we can learn from it. Shortly after the work was “released,” another edition of the book was published by the folks at Merkaz ha-Rav. They called it Pinkesei ha-Re’iyah, vol. 2, and like everything else produced by these people, it is heavily censored.[5] (Parts of Pinkesei ha-Re’iyah have been included in the new Humash ha-Re’iyah that was just published. Here is a sample.

Although it would have been better had the editors used Li-Nevokhei ha-Dor, this new Humash is still a wonderful book to take to shul. You can find out more about it here.)

Li-Nevokhei ha-Dor begins (ch. 2) by arguing that it is the “obligation of the true sages of the generation” to follow in the path of the medieval greats who were always concerned about those suffering religious confusion. While the contemporary spiritual leaders must respond to the concerns of modern Jews, R. Kook points out that since the issues confronting people today are so different than those of the medieval period, the works of the rishonim are of only limited value in confronting the current problems.

In ch. 3 R. Kook states that the medieval approach of trying to “prove” religion will not work in our day, and that in place of this, religious leaders should stress justice and righteousness, i.e., the humane values of Judaism.[6] He recognizes that the real problem for modern Jews is not the scientific or philosophical challenges to Torah, but the ethical ones, and that Torah scholars must explain those concepts that appear to stand in contradiction to modern ethical values. He sees this task as just like what the medievals did in dealing with the physical descriptions of God in the Bible, which contradicted the philosophical notion that God has no form. These sages showed the way out of this problem and in the end the truth of the Torah was understood. R. Kook says that contemporary sages must do the same thing with regard to ethical challenges. If not, people will reject the Torah because they view its message as contradicting what they know to be ethical, that which R. Kook refers to as “the laws of natural morality” (חקי המוסר הטבעיים).
With this in mind, let me quote an amazing passage of R. Kook that I have referred to before. It appears in Shemonah Kevatzim 1:75 and the translation is by David Guttmann.[7]

Yir’at Shamayim—fear of heaven—may not supplant the natural sense of morality of a person, for in that case it is not a pure Yir’at Shamayim. The signpost for a pure Yir’at Shamayim is when the natural sense of morality (המוסר הטבעי) that is extant in the straightforward nature of man is improved and elevated by it more than it would have been without it. But if one were to imagine a kind of Yir’at Shamayim that without its input, life would tend to do well and bring to fruition things that benefit the community and the individual, and furthermore, under its influence less of those things would come to fruition, such a Yir’at Shamayim is wrong.

The upshot of this passage is that some (much?) of what passes for piety today is really nothing more than a corrupted religiosity.

This natural morality that R. Kook spoke of was not only in nature, but also in people. This led R. Kook to a unique understanding of the relationship between scholars and masses. Anyone who has studied in a yeshiva knows that it inculcates a certain amount of condescension for the masses. For what could the masses, the typical am ha-aretz, possibly have to offer the scholar? Yet R. Kook saw matters differently, and recognized that there was an element of natural Jewish morality in the masses that was no longer to be found among the scholars, and the scholars ignored this to their own detriment. And let us not forget that the masses that R. Kook was referring to were not like many of our masses who go to day school, yeshiva in Israel, and attend daf yomi before going to work. The East European Jewish masses never opened a Talmud after leaving heder. They were pious and recited Psalms and came to a shiur in Ein Yaakov or Mishnayot, but without having studied in yeshiva, and lacking an Artscroll, the Talmud was closed to them. Incidentally, the rabbis had no problem with this arrangement, unlike today when Talmud study has become a mass movement.

Had the masses in R. Kook’s day had any serious learning, then he couldn’t have said what he did, because his point is precisely that learning “spoils” some of the Jew’s natural morality. Here are R. Kook’s words in Shemonah Kevatzim 1:463:

האנשים הטבעיים שאינם מלומדים, יש להם יתרון בהרבה דברים על המלומדים, בזה שלא נתטשטש אצלם השכל הטבעי והמוסר העצמי על ידי השגיאות העולות מהלימודים, ועל ידי חלישות הכחות וההתקצפות הבאה על ידי העול הלימודי.
This is a an anti-intellectual passage, in which we see R. Kook favoring the natural morality and religiosity of the simple Jew over that of his learned co-religionist. (It was precisely this sort of sentiment that was expressed by Haym Soloveitchik at the end of “Rupture and Reconstruction.”) Can anyone be surprised that this passage was not published by R. Zvi Yehudah? He recognized all too well the implications of these words, which I am only touching on here.

R. Kook continues by saying that the masses need the guidance of the learned ones when it comes to the halakhic details of life. That we can understand, since the masses can’t be expected to know, say, the details of hilkhot Shabbat. But in a passage quite subversive to the intellectual elite’s self-image, R. Kook adds that the learned ones also have a lot to learn from the masses. In fact, if you compare what each side takes from the other, I don’t think there is any question that what the masses give the learned is more substantial than the reverse.
והמלומדים צריכים תמיד לסגל לעצמם כפי האפשרי להם את הכשרון הטבעי של עמי הארץ, בין בהשקפת החיים, בין בהכרת המוסר מצד טעביותו, ואז יתעלו הם בפיתוח שכלם יותר ויותר
In ch. 4 of Li-Nevokhei ha-Dor, R. Kook comes to evolution and here he speaks of the billions of years of history identified by modern science. He says that this is a problem for the קטני דעה who think that evolution is a rejection of God, but those who hold such a position are making a great error. The true believer will be led to even greater wonder at the ways of God when he sees how long it has taken for species to evolve. As for the Creation story, R. Kook begins ch. 5 by telling us that it is not to be understood literally, as Maimonides had already taught. Knowing that some might nevertheless be tied to a literal reading of the opening chapters of Genesis, R. Kook insists that this is not one of the principles of the Torah. (Until a few years ago this was not a principle in the haredi mind either.)
In ch. 5 we see R. Kook’s preference for the evolutionary scheme over the traditional story of creation at one time, and he sees this understanding as bringing us closer to God. Just as we are amazed by the growth of a baby inside the womb, so too we will be in awe at the development of the physical world. He is absolutely clear that the creation story is not a scientific description but is directed towards a moral end:
ויסוד הדבר, שלא דברה תורה כי אם במה שנוגע לכדור ארצינו, וגם זה רק לפי התוכן שיובן הצד המוסרי שנוגע להישרת דרכי האדם הליכותיו החיצוניות ורגשותיו הפנימיים יפה יפה
This is a strong rejection of the neo-fundamentalist hermeneutical acrobatics of people like Gerald Schroeder (and to a lesser extent Nathan Aviezer).[8] They start with the assumption that the Torah’s Creation story is indeed describing scientific reality, yet until they explained it, no one in history had understood the meaning of the verses. From R. Kook’s perspective, this is a great misinterpretation of what the Creation story is telling us. As for the “young earthers’” objection (which I admit to having never understood) that Shabbat depends on seven 24 hour days of creation, R. Kook disposes of that without much ado:
אין כל מניעה בזה לא מצד הכתובים, ולא מצד חובת קדושת השבת שמכוונת כפי הציור הפנימי של האדם
He continues by saying that other parts of the Creation story can also be explained in a non-literal fashion:
ואפילו אם נפרש עוד יותר על פי משל את הסידור של בריאת האדם, שימתו בגן עדן, קריאת השמות, בנין הצלע, אין דבר מתנגד ליסודי התורה . . . ואין קפידא אם נצייר הנחש כולו ציורי, וכן עץ הדעת על התגלות הנטיה לצאת ממצב המנוחה והתמימיות העדינה
Crucial for R. Kook’s understanding is that that there came a point in human development when man was able to recognize the Divine. Only then could he be described as created in the image of God.
Even before the recent publications, these thoughts of R. Kook were not unknown. Here is what he writes in Iggerot ha-Re’iyah, no. 134:
אין לנו שום נפ”מ אם באמת היה בעולם המציאות תור של זהב [=גן עדן], שהתענג אז האדם על רב טובה גשמית ורוחנית, או שהוחלה המציאות שבפועל מלמטה למעלה מתחתית מדרגת ההויה עד רומה, וכך היא הולכת ומתעלה
The last part of this quotation refers to the evolutionary understanding, in that existence works its way “from the bottom up”.
Returning to Li-Nevokhei ha-Dor, ch. 5, as an example of how the allegory works, R. Kook refers to Eve being taken from Adam’s rib, which cannot be understood literally if we are dealing with an evolutionary scheme. He sees this as a vision, designed to show that family life can only succeed if both husband and wife join together. The wife cannot be a helpmate alone, but has to be joined with her husband. A surface read of this passage might lead one to think that according to R. Kook this “vision” was an actual event that occurred with the historical “first man”, which would means that this first man had a relationship with God. Yet from Shemonah Kevatzim 1:594, which is a parallel passage to the one in Li-Nevokhei ha-Dor, we see that this is not the case.
להשוות סיפור מעשה בראשית עם החקירות האחרונות הוא דבר נכבד. אין מעצור לפרש פרשת אלה תולדות השמים והארץ, שהיא מקפלת בקרבה עולמים של שנות מליונים, עד שבא אדם לידי קצת הכרה שהוא נבדל כבר מכל בעלי החיים, ועל ידי איזה חזיון נדמה לו שצריך הוא לקבע חיי משפחה בקביעות ואצילות רוח, על ידי יחוד אשה שתתקשר אליו יותר מאביו ואמו, בעלי המשפחה הטבעיים. התרדמה תוכל להיות חזיונית, וגם היא תקפל איזה תקופה, עד בישול הרעיון של עצם מעצמי ובשר מבשרי. והודיע הכתוב שקדושת המשפחה קדם להבושה הנימוסית בזמן, וכן במעלה, שאחר ההתעוררות מהתרדמה הוחלט דבר זאת הפעם, ומכל מקום היו שניהם ערומים ולא יתבוששו.
According to R. Kook’s portrayal of humanity’s development in the direction of a stable family unit, there is only one word to describe the story told in Gen. 2, and that is “myth.” While in the popular mind myth often is identical with fairy tale, this is not how scholars understand myths. For them, myths communicate cosmic truths in non-historical story form, and they are not synonymous with legends. My dictionary explains myth as “a usually traditional story of ostensibly historical events that serves to unfold part of the world view of a people or explain a practice, belief, or natural phenomenon.” This explanation is a perfect description of what R. Kook writes in the passage just quoted from Shemonah Kevatzim.
The problem is, where do you draw the line? Is it only the stories at the beginning of Genesis that can be interpreted in a non-historical fashion, or has the door been opened to other sections of the Torah as well? R. Kook already confronted this issue in one of his classic letters to his student, Moshe Seidel (Iggerot ha-Re’iyah, vol. 2, no. 478), whom he had encouraged to study Semitic languages.[9] R. Kook admitted that there was no clear dividing line, but that the Jewish people as a whole would come to a proper insight.
ואם אין כל יחיד יכול להציב גבול מדויק בין מה שהוא בדרך משל בתורה ובין מה שהוא ממשי – בא החוש הבהיר של האומה בכללה ומוצא לו את נתיבותיו לא בראיות בודדות כי אם בטביעות עין כללית.
Following this, R. Kook raises the issue of what to do if it can be proven that the Torah’s description of matters is not entirely accurate. Often when R. Kook spoke about these matters, he was referring to the Torah’s description of creation vs. what science tells us. Yet I don’t think that this is what he is referring to in this letter. To begin with, he doesn’t speak about issues of science here. He is talking generally about matters described in the Torah that conflict with research (hakirah). These would also include historical descriptions found in the Torah. We must remember that the letter is to Seidel, who was involved in academic Bible study and was struggling with this. I think it is pretty clear that his concern was not with science and creation but with the larger issue of what the Torah recorded vs. what the critical scholars were saying. (Unfortunately, I am informed that Seidel’s letter to R. Kook, which R. Kook is in turn responding to, is not found in the R. Kook archive.)
R. Kook tells Seidel that even if the Torah’s descriptions (“the commonly accepted description”) are not accurate, there must be an important and sacred purpose for these matters to have been presented in this way, rather than being described in an exact fashion. In order to show that this is a proper approach, R. Kook brings two amazing parallels. The first one is the law of yefat toar. In my earlier post dealing with developing morality, available here, I quoted R. Kook’s other recently published comments about yefat toar. Here is making a different point. He refers to the Talmud in Kiddushin 21b which states that this entire law is a concession to human passions, but it is not proper. The proper thing would be for a Jewish soldier never to do this, but since in the real world this sort of thing will happen, the Torah provides a context for it to be done in a more civilized manner.[10] The parallel R. Kook sees is that just like the morality described in the law of yefat toar is not perfect, but rather a concession to human weakness, so too descriptions of various things in the Torah need not be “perfect”, that is, historically accurate. There are times when for its own purposes the Torah needs to describe matters in ways that will accomplish certain goals, even if the descriptions are not “true,” i.e., historically true.
The next parallel he offers is Ex. 18:19, which describes Mt. Sinai at the time of the Revelation and states that “its smoke ascended like the smoke of the lime pit.” Rashi, based on the Mekhilta, comments that this reference to the smoke being like a lime pit was “to explain to the ear that which it can understand (לשבר את האזן).” In other words, it wasn’t really like a lime pit but this description is used to accomplish a larger goal. R. Kook develops this concept, and refers to this Rashi. Here is the passage in full:
ואם נמצא בתורה כמה דברים, שחושבים אחרים שהם לפי המפורסם מאז, שאינו מתאים עם החקירה של עכשו, הלא אין אנו יודעים כלל אם יש אמת מוחלטת בחקירה הזמנית, ואם יש בה אמת, ודאי יש גם מטרה חשובה וקדושה שלצרכה הוצרכו הדברים לבא בתיאור המפורסם ולא המדויק, כמו שהוא פשוט במושגים הרוחנים ובכמה יסודי מעשה, ש”דבר תורה כנגד יצה”ר” או “לשבר את האזן.”
Elsewhere, in Eder ha-Yekar, pp. 37-38, R. Kook explains that the Torah can describe events in a way not in accord with the astronomical or geological (i.e., historical) truth. This is done in order for the Torah to accomplish its goal, which is not focused on such matters but rather on
ידיעת האלהות והמוסר וענפיהם בחיים ובפועל, בחיי הפרט, האומה והעולם
In words very similar to those in his letter to Seidel, R. Kook writes there:
כבר מפורסם למדי שהנבואה לוקחת את המשלים להדרכה האנושית, לפי המפורסם אז בלשון בני אדם באותו זמן, לסבר את האוזן מה שהיא יכולה לשמוע בהוה, “ועת ומשפט ידע לב חכם”, וכדעת הרמב”ם וביאור הרש”ט במורה נבוכים סוף פרק ז’ משלישי, ופשטם של דברי הירושלמי שלהי תענית לענין קלקול חשבונות של תשעה בתמוז.
What R. Kook is saying here is that prophecy uses what is “widely accepted”, even if mistaken, as well as the forms of speech current among contemporary listeners.[11] With this conception, one can’t be disturbed if the Torah or other prophets describe matters not in accord with the facts as we know them today, because the immediate audience of the prophet did think that these were the facts. So, for example, the Torah does not describe a universe billions of years old because that was not part of the mental conception of the ancient Israelites. What is new in this passage is R. Kook’s reference to Maimonides and Shem Tov’s commentary.
He doesn’t explain what he has in mind when he refers to Maimonides, but by examining Shem Tov’s commentary to Guide 3:7, which R. Kook also refers to, all is revealed. Here Shem Tov is discussing Maimonides’ view of Ezekiel and a scientific error the prophet made. Shem Tov concludes his discussion with the following revealing words:
ידבר הנביא בענינים העיוניים במשפט החכם ולא ידבר בהם כמו נביא אם שאמרם הנביא
What this means is that when the prophet is speaking about philosophical or scientific matters, he is speaking from his own wisdom, not prophetic insight. Shem Tov’s point is that the prophet will assimilate his prophetic message to his own words, and the latter, based as they are on his own life experience and knowledge, could also contain error.
This is all based on what Maimonides himself writes in Guide 2:8. Here he explains that there is a dispute if the heavenly spheres emit sounds. The Sages believe they do, and Aristotle rejects this. Maimonides adopts Aristotle’s view and explains that the Sages were mistaken. In Guide 3:3 Maimonides identifies the wheels (ofanim) in Ezekiel’s vision with the spheres, and if you examine Ezekiel 1:24 and 10:5 you find that the prophet describes the wheels (=spheres) as producing sounds. The upshot of this is that according to Maimonides Ezekiel’s prophecy incorporated a mistaken scientific view, a view which he points out was later shared by the Sages of Israel. This explanation of Maimonides, quoted from Narboni, is recorded by Shem Tov in his commentary to Guide 3:7.[12] As mentioned, this is what R. Kook refers the reader to.
Ralbag, commentary to Gen. 15:4 and to Job, end of ch. 39, also refers to Maimonides’ view that the prophets could be in error about scientific matters. He refers in particular to Ezekiel’s scientific error, and expresses his agreement with Maimonides’ position. In his commentary to Job he explains:
ספר זה עם ספורו שאר הדברים הנעלמים להיות זה נעלם לאיוב כי בנבואה יבואו כמו אלו הענינים לפי המקבל . . . שכבר יגיע לנביא דבר כוזב בעת הנבואה, במה שאין לו מצד שהוא נביא מצד הדעות אשר לו בענינים ההם.
In other words, prophetic books might record mistaken ideas because that is what the prophet thought. Ralbag gives another example of this. In Gen. 15 Abraham was told to look at the sky and just as he could not count the stars of heaven so too his children will be so numerous. According to Ralbag, this is an example of a prophet receiving false information in accord with his mistaken conception. Since Abraham falsely believed that there are many stars, his prophecy contained this false conception, while in reality according to Ralbag there are actually a limited number of stars.
Ralbag further explains his view of the stars in Milhamot ha-Shem 5:1:52, which has not yet been published and is quoted from manuscript in the Birkat Moshe edition of Ralbag on Genesis, pp. 222-223. Here Ralbag rejects the view of those who thought that there were many unseen stars and asserts that the only stars are those that can be seen. (Maimonides, Guide 1:31, states that the number of the stars is unknown.) He mentions that others had assumed that there were unseen stars because otherwise the prophecy of Abraham would not make sense. If you look up at the stars there aren’t so many of them, and therefore, what type of promise is it that Abraham’s descendants will be as many as the stars?
Unlike in his commentary to Genesis, here Ralbag does not claim that Abraham’s prophecy was incorrect when it came to the number of stars. Instead, he states that the meaning of the verse is not that Abraham’s descendants will be so many that they can’t be counted. Rather, just like it is difficult to count the stars, so too it will be difficult to count the descendants of Abraham because they will be so many. His proof for this contention is Moses’ words to Israel, Deut 1:10: “The Lord your God hath multiplied you, and, behold, ye are this day as the stars of heaven for multitude.” Moses says this even though he had already counted the Children of Israel. Yet because they were so many that it was difficult to count them, he refers to them as “the stars of heaven”. According to Ralbag, this proves that the comparison with the stars does not mean “too many to count”, but only “difficult to count”.
Ralbag also cites a talmudic passage (Berakhot 32b) which speaks of an enormous number of stars (three hundred and sixty five thousand myriads). This contradicts his own view that the number of stars are quite limited. Yet Ralbag is not troubled and declares, in words that would get him banned today:
שבכמו אלו הדברים לא נרחיק שיהיו לקצת חכמינו אז דעות בלתי צודקות, כמו שיזכרו שחכמי ישראל היו אומרים שהגלגל קבוע ומזלות חוזרים ומה שדומה לזה.
In his commentary to Genesis 15:4 he writes:
לא יחוייב שיהיו אצל הנביא כל הדעות האמיתיות בענין סודות המציאות
Obviously, if you are prepared to say that great prophets such as Abraham and Ezekiel were wrong in scientific matters, it is only natural to assume the same thing when it comes to the Sages.
Of course, we know today how wrong Ralbag was. In fact, it is only in modern times that one can really appreciate Abraham’s prophecy. Later, in Gen. 22:17, he is told that his descendants will be as numerous as the sand and as the stars in the heaven. Centuries ago I think many people must have wondered about this verse. They could understand the promise that his descendants would be like the sand since the sand is so numerous it can’t be counted. Yet how is this comparable to the stars, since anyone can look up at the sky and see that there aren’t that many stars at all? Thus, pre-modern man should have been troubled since the two parts of the verse don’t correspond, even though they are supposed to. It is only with the invention of telescopes that people could see that the two parts of this verse, the sand and the stars, are really saying the same thing. Scientists now believe that the amount of stars runs into the sextillions and that there are more stars than grains of sand on the earth!

Returning to R. Kook’s letter to Seidel, he also refers to the end of Ta’anit in the Jerusalem Talmud. What is this about? According to Jeremiah 39:2 the Jerusalem city walls were breached on the ninth day of Tamuz. Yet JTa’anit 4:5 states that this occurred on the seventeenth of Tamuz. How to make sense of this contradiction? The Jerusalem Talmud answers as follows:
קלקול חשבונות יש כאן

Korban Edah explains:
מרוב הצרות טעו בחשבונות ולא רצה המקרא לשנות ממה שסמכו הם לומר כביכול אנכי עמו בצרה
In other words, the book of Jeremiah records mistaken information, but that is because it chooses to reflect the mistaken view of the people, rather than record the accurate facts. As the final words of Korban Edah explain, there are more important considerations for the prophet than to be accurate in such matters. R. Kook sees the lesson of this talmudic passage as applicable to elsewhere in the Bible, namely, that absolute accuracy in its descriptions (both scientific and historical) is not vital and can therefore be sacrificed in order to inculcate the Bible’s higher truths. R. Kook does not tell us how far to take this principle, and no doubt he himself was not sure.[13] The only thing he could say was that these matters would be settled by, as mentioned already, החוש הבהיר של האומה
Another example of a biblical book containing incorrect information is found in Nehemiah 7:7, as explained by the medieval commentary attributed to Rashi. After noting that the numbers given in Nehemiah ch. 7 are not always the same as those mentioned in the book of Ezra, “Rashi” states:
ולא דקדק המקרא בחשבונות כל כך אבל הכלל שוה . . . ועל זה הכלל סמך כותב הספר ולא דקדק בחשבון הפרטיות כל כך.
What this means is that the author of the book of Nehemiah was not careful in the details he recorded, as long as the big picture—in this case, the total number of people—was correct. How many other places in the Bible can we apply this insight to?
The fourteenth-century R. Eleazar Ashkenazi ben Nathan ha-Bavli has an even more radical approach, as he believes that there are inaccuracies in the Torah itself.[14] It is true that at times he is quite conservative. For example, he rejects Ibn Ezra’s assumption that there are post-Mosaic elements verses in the Pentateuch.[15] He also strongly rejects the aggadah that the Land of Israel was not included in the Flood,[16] because the verse tells us that all life on earth was destroyed: ואין לחוש על דבר משמכחיש גופי התורה
Yet his more “liberal” side is seen many other places. For example, he assumes that the extremely long lifespans found at the beginning of Genesis are not to be taken literally (p. 29).
וימי חייהם אז היו כימי חיי אנשי דורנו לא פחות ולא יותר כי לא היו אז מזהירים כשמש ולא חזקים כנחושה, אבל היו מבשר ודם ומזרע אשה ומדם נדותה ככל אשר אנחנו עושים פה היום
If people never lived so long, why were these number included in the Torah? R. Eleazar claims that Maimonides’ approach is to regard the lengthy lifespans as simple figures of speech, not meant to be taken literally any more than the statement that the Land of Israel was flowing with milk and honey or that the cities in Canaan were “fortified up to Heaven” (Deut. 1:28).[17]

He also offers another explanation for the lengthy lifespans, namely, that the Torah recorded what the popular belief was, no matter how exaggerated, and Moses was not concerned about these sorts of things. In other words, just like today people say that the Torah is not interested in a scientific presentation of how the world was created, R. Eleazar’s position is that the Torah is not interested in a historically accurate presentation. In his mind, this has nothing to do with the Torah’s goals, and therefore there was no reason for the Torah not to present matters as they were believed at the time, even if these perceptions were inaccurate. The important thing, he says, is that the people would know that from the creation of the world until Israel stood at Sinai was close to three thousand years. This would help solidify belief in creation. The records of lifespans are just a means to illustrate this information.[18] He adds that when it came to events closer to Moses’ time, Moses was careful in preserving a more accurate accounting, while leaving the stories of the distant past cloaked in legend.
There are other ways rationalists have dealt with the lengthy lifespans. For example, R. Nissim of Marseilles regards these years not as indicating an individual life, but rather the “lifespan” of the way of life (i.e., laws, customs) instituted by the figure in question, or the time until another one like him arose. He also assumes that when the Torah says that someone bore a son, it doesn’t have to mean a literal son. Here is what he writes in Ma’aseh Nissim, p. 274:
יש מי שפירש שהכונה בחיים ההם קיום נמוסיו והנהגותיו הזמן [בזמן] הנזכר, בין בחייו בין אחר מותו. כי אלו, אפשר שהיו אנשי שם, מחקים חוקים ונימוסים, ומנהגים במידותיהם, גם במאכלם ומשתיהם ובמלבושיהם, ואחר הזמן ההוא אפשר שנשתכח הכל ובחרו דרך אחרת. או תאמר, שלא קם כמוהו עד זה הסך מן השנים במעלת ידיעת ההנהגה לבני דורו. ובזמן ההוא קם כמוהו במעלה, נמשך לדעתו וכונתו, ונחה רוחו עליו כאשר נחה רוח אליהו על אלישע. ואם לא ראה הראשון זה שקם אחריו ולא היה בזמנו, אפשר למד מספריו או התבונן בדבריו המקובלים, ועל זה כתוב: “ויולד” שהוליד בדמותו במעלה, כאלו הוא הוליד האיש ההוא מאשר הוא בעל הדעת ההוא שלמדוהו.
In support of this approach, he refers to Va-Yikra Rabbah 21:9 which cites an opinion that Scripture intimated to Aaron that he would live 410 years. Although the Torah tells us that he only lived to 123 (Num. 33:39), the Midrash says that the righteous High Priests in the First Temple are called by Aaron’s name. In other words, they represent the spirit of Aaron, so in that sense it can be said that he lived so many hundreds of years. So too, R. Nissim thinks, when Scripture speaks of other people living so many hundreds of years it is to be understood in this fashion.
Another approach was suggested by R. Moses Ibn Tibbon, who is quoted by R. Levi ben Hayyim.[19] According to Ibn Tibbon, the years given for people’s lives are actually the years of the dynasties they established.[20] (His other suggestion is the same as that of R. Nissim, mentioned above.):
והחכם ר’ משה פירש, כי כל אחד מאלו היה מלך או הניח נימוס, וכל זמן התמדת מלכותו ומלכות זרעו, או כל ימי המשכות נימוסו, קרא דור אחד, כאלו היה המלך או מניח הנימוס חי, וטעם “ויולד בנים ובנות” כי לאורך הזמן רבו ועצמו בני מלכותו או אנשי דתו, ושלחו קצתם אל ארץ אחרת.
R. Levi ben Hayyim offers basically the same approach (p. 326):
ונראה לי כי הדורות הנזכרים היו ראשי אבות, וזרע כל אחד נקרא בשמו כפי מספר השנים ההם. כי כל אחד, כמו שנאמר, הוליד בנים ובנות, כמו שנראה היום, עד שנשקע השם מהדורות הבאים אחריו, וקח מאתו זרע איש אחד מפורסם, וקראו בני זרעו ומשפחתו על שמו זמן מה, וכן התמיד עד שנתחדש דור אחר, נקרא [!] בניו ובני בניו על שמו [צ”ל שם] חדש. והורה ספור הדורות ההם מאדם ועד זמן משה על חדוש העולם.
To be continued
* * *
The new semester of Torah in Motion has just begun. The first figure I am dealing with is R. Elijah Benamozegh. You can sign up to participate in the classes here.
You can also sign up for the classes of Moshe Shoshan, Abe Katz, R. Daniel Feldman, and William Gewirtz. Dr. Gewirtz, who has published on the Seforim blog, will be giving three FREE special classes dealing with various aspects of time in Jewish law. This is a topic that few have been able to master and the classes promise to be a treat.
Even if you can’t watch the classes live, videos and audio are sent to you so that you can watch or listen at your convenience.

Also from Torah in Motion, information will soon be coming about the July trip to Central Europe that I will be leading.
[1] For the proper explanation of the etymology of Marheshvan, see Ari Zivotfsky’s article in Jewish Action, Fall 2000, available here. See also Abraham Epstein, Mi-Kadmoniyot ha-Yehudim (Vienna, 1887), pp. 23ff. Zivotofsky does not offer any sources for the mistaken etymology that Heshvan is bitter (mar) because it has no holidays in it. I don’t know the first appearance of this notion, but it already is found in R. David Meldola, Moed David (Amsterdam, 1740), p. 64a.
[2] Among rishonim, Ibn Caspi had already stated that Adam was not the first man. See Matzref ha-Kesef, pp. 16-17 (contained in Mishneh Kesef, vol. 2). In order to understand what Ibn Caspi is saying in this passage, one needs to be attuned to his elusive style. See also his commentary to Guide 1:14, where he understands Maimonides to be saying that the Adam of Genesis is really referring to Moses.
[3] Rishonim already proposed that the word האדם in Gen. ch. 2 refers to humanity, rather than an individual person. See e.g., Ibn Ezra to Gen. 2:8, who states that this interpretation is a secret, i.e., not designed for the masses. See also his commentary to Ex. 3:15. R. David Kimhi also felt that this “truth” should be kept from the masses, who should instead be taught a different “truth”, namely, the Adam and Eve story in a literal fashion. See his esoteric commentary to Genesis, printed in Louis Finkelstein, ed., The Commentary of David Kimhi on Isaiah (New York, 1926), p. LIV:

עתה אשוב לפרש הנסתר אשר מפסוק וייצר ה’ א-להים את האדם (בראשית ב, ז) עד זה ספר תולדות אדם (בראשית ה, א) ותחלה אומר כי האדם הנזכר מפסוק זה עד זה ספר תולדות אדם הנגלה הוא על אדם הראשון והנסתר הוא על שם המין ושניהם אמת אך הנגלה הוא להמון והנסתר הוא ליחידים שהם סגולת ההמון.

Here is how he understands the Garden of Eden (ibid.):

עדן הוא משל לשכל הפועל הוא העדן האמתי הרוחני והא-ל נטע בו גן מקדם בראש בריותיו כשברא השכלים הנבדלים.
[4] You can find the book here
[5] See Eitam Henkin’s post here. For another post by Henkin on this book, see here. English readers are probably unaware of Henkin, the son of R. Yehudah Herzl Henkin. In the last few years he has really created a reputation for himself as he has authored a number of important articles which show an incredible amount of knowledge on the history of Torah Judaism in modern times. He has also written a sefer, soon to be published, which deals with the halakhot of bugs in food. Unlike the rage today, he rejects the extreme positions, one of which is that due to bug infestation, strawberries are no longer permitted to be eaten. See e.g., here. Henkin’s book will carry the following haskamah of R. Meir Mazuz.

[6] R. Jehiel Jacob Weinberg would later argue against trying to “prove” Judaism in the medieval fashion. In the post-Hume and post-Kantian world I thought that this was pretty much agreed upon by everyone. How wrong I was can be attested to all who attended my lecture on Maimonides at the 2008 New York Limmud conference and recall the dispute that took place afterwards. An individual who is involved in kiruv adamantly insisted that the major doctrines of Judaism can be proven to the same degree of certainty as a mathematical proof, and that these truths can thus be proven to non-Jews (who if they don’t accept the proofs are being intellectually dishonest). In this conception, there is no longer room for “belief” or “faith”; since the religion has been “proven” we can only speak of “knowledge”. The notion that Judaism could not be proven in this fashion was, I think, regarded by him as akin to heresy. I have had a lot of contact with “kiruv professionals” and had never come across such an approach. Yes, I know that people speak about the Kuzari proof for the giving of the Torah. However, I always understood this to be more in the way of a strong argument rather that an absolute proof, with the upshot of the latter being that one who denies the proof is regarded as intellectually dishonest or as a slave to his passions. I also know R. Elchanan Wasserman’s strong argument in favor of the viewpoint expressed by my interlocutor (see Kovetz Ma’amarim ve-Iggerot, pp. 1ff.), but before then had never actually found anyone who advocated this position, lock, stock and barrel. So the question to my learned readers is, is there a kiruv “school” today which does outreach based on the “Judaism can be proven” perspective?
[7] See here.
[8] In his latest book, God According to God, Schroeder—who according to his website teaches at Aish ha-Torah— “goes off the haredi reservation” in a much more serious way than Slifkin. Here is how his website describes the book: “In God According to God, Schroeder presents a compelling case for the true God, a dynamic God who is still learning how to relate to creation.” See here. I daresay that one would be hard-pressed to find even a Modern Orthodox rabbi who would not regard this view of an imperfect God as a heretical position.

In a future installment I will deal with Aviezer who unlike Schroeder, has real Judaic learning. Unfortunately, despite his scientific expertise, Schroeder makes numerous errors when he deals with the Jewish side of things. From what I see on the internet, it appears that a majority of his readers are non-Jewish, so these errors will not be noticed by them. Yet they are bound to be annoying to educated Jewish readers. Let me give just a few examples from his new book, God According to God.

P. 11: “The Hebrew word for ‘slave’ is ‘worker’ with all the connotations that differentiate the modern concept of slave from that of a worker.” He then apologetically describes the laws of slavery without distinguishing between the Hebrew slave and the Canaanite slave, and apparently without realizing that the latter was indeed a real slave. See Shulhan Arukh, Yoreh Deah 158:1, where R. Moses Isserles writes:


מותר היה לנסות רפואה בעבד כנעני אם תועיל
P. 11: “Returning an escaped slave to the master was absolutely forbidden (Deut. 23:15-16).” Yet we are not Karaites and a glance at Rashi will show that this is not as “liberal” a law as he makes it out to be.

P. 22: [T]he ancient biblical commentators, those whose writings predate by many centuries the discoveries of modern science (writers of the Talmud, ca. 400; Rashi, ca. 1090; Maimonides, ca. 1190; Nahmanides, ca. 1250), learned from the detailed wording of Genesis that the universe is young and old simultaneously. These ancient commentators actually discuss what science has only recently discovered, that the flow of time is flexible.”

P. 23: “Moses Maimondes refers to a madah teva, the science of nature.”

P. 195: “The [biblical] Hebrew word le’olam has three root meanings: “forever,” “hidden” and “in the universe”.

Nothing I have said should be taken to imply that Schroeder does not have what to offer. However, before he publishes anything it should be reviewed by a Torah scholar, much as I would expect a talmid chacham writing on science to have his writing reviewed by a professional scientist.
[9] See Iggerot la-Re’iyah, vol. 1, no. 108. Seidel would later teach at Yeshiva College where some of the Roshei Yeshiva were upset with his views. See Ari Shvat, “Hahlatato shel ha-Rav Kook le-Tzamtzem et Hazono le-Limud Mehkari-Madai bi-Yeshivat Merkaz ha-Rav,” Talelei Orot 15 (2009), pp. 149-174.
[10] In a recent issue of Iturei Yerushalayim (Sivan 5769, pp. 9-10), R. Shlomo Aviner responds to a soldier who in all seriousness wanted to apply the law of yefat toar today with regard to Palestinian women. The soldier had in mind the understanding that rape of a yefat toar is permitted during battle.
Complete details can be found in the Encyclopedia Talmudit entry for yefat toar. There is a lot in this entry which will distress any reader, and according to the Sages, that is the way people should feel, for the entire law was a concession to human weakness. That is, it was a necessary evil, not something that people should strive for or feel proud of. This is how the entry in the Encylopedia Talmudit begins:

היוצא למלחמה וראה בשביה אשה נכרית וחשק בה, מותר לו לבא עליה – על כרחה.

In other words, it is permitted to rape a captive woman, and it was based on this understanding that R. Aviner was asked the question. Yet it is probably also the case that this view is not held by all. I say this since the Encyclopedia Talmudit entry itself records that there are those who require the woman to be converted before sex, and there are also those who state that the woman cannot be converted against her will. Although I haven’t compared all the positions, it is likely that there is some overlap here, i.e., authorities who require the woman to be converted and also hold that the conversion has to be an act of her free will.

Yet it is also the case that plenty of authorities do permit rape of a yefat toar (including a married woman), either on the battlefield or later. In his commentary to Gen. 34:1, Nahmanides writes:

כל ביאה באונסה תקרא ענוי, וכן לא תתעמר בה תחת אשר עניתה.

I have no doubt that today, when everyone would be horrified by this behavior, and it is forbidden in all civilized societies (and even uncivilized ones), such an action would not be permitted even as a concession to human weakness. I can’t imagine that anyone in our day would condone rape, no matter what the circumstances, and certainly no one would defend the following opinion quoted in the Encyclopedia Talmudit:

היתה השבויה קטנה, כתבו אחרונים שביאה ראשונה – לסוברים שהיא לפני גירות – מותרת אף בקטנותה.

From R. Aviner’s reply we see that he doesn’t believe that the yefat toar law has any applicability today:

בוודאי שאין דין יפת תואר נוהג בימינו, ואני תמה על השאלה הזאת שהנך שואל למעשה, שכידוע לא דיברה תורה אלא כנגד יצר הרע, והרי אדם צריך להלחם ביצר הרע ולא לחפש היתרים ליצר הרע. וכבר כתב רבי יהודה החסיד בספר חסידים [סי’ שעח] שיש דברים שהתורה התירה אבל אם יעשה אותם האדם הוא יבוא לדין עליהם שהרי התורה רק התירה בגלל יצר הרע. ואם אדם נותן שחרור ליצר הרע, הוא ייתן את הדין . . . לגופו של עניין, כל הדין הזה הוא בשביה, ולא שאדם ילך לבתים של אויבים ויעשה שם נבלות, והרי נשים אינן שבויות צה”ל, וגם אם יש שבויה, בוודא שצה”ל לא ירשה כזו נבלה . . . בסיכום, זה לא שייך כלל וכלל. הרחק ממחשבות אלו, אלא אדרבה למד הרבה בספר מסילת ישרים.

In this, R. Aviner is following the approach of R. Kook who speaks of the need to rise above the law of yefat toar. In my previous post dealing with developing morality, referred to in the text, I quoted R. Kook as follows:

כל לב יבין על נקלה כי רק לאומה שלא באה לתכלית חינוך האנושי, או יחידים מהם, יהיה הכרח לדבר כנגד יצר הרע ע”י לקיחת יפת תואר בשביה באופן המדובר. ומזה נלמד שכשם שעלינו להתרומם מדין יפת תואר, כן נזכה להתרומם מעיקר החינוך של מלחמת רשות.

Note that R. Kook speaks of תכלית חינוך האנושי and not Torah education.

We have recently seen the publication of Torat ha-Melekh (which I will discuss in a future installment of this post). When I told a friend about the question of the soldier to R. Aviner, he commented, only half-jokingly, that we will probably soon see a book on how Israeli soldiers can institute the law of yefat toar in modern times.

Finally, I would be remiss in not mentioning that R. Meir Simhah of Dvinsk basically turns the entire law of yefat toar into something completely theoretical, much like ben sorer u-moreh. I say this because R. Meir Simhah assumes that the law is not applicable in a war where the enemy could be holding Jewish prisoners, which in the real world is always the case. Here are his words in Meshekh Hokhmah, Deut. 21:10:

נראה דהוא תנאי בהיתר יפת תואר, שדוקא אם ה’ נותן האויב ביד ישראל. אבל כדרך המלחמות שאלו שובים מהם, והאויב שובה מהם, והדרך כשעושים שלום או בתוך המלחמה, מחליפים שבויים שאינם ניאותים עוד למלחמה. אם כן יתכן כי עבור היפת תואר שמגיירה ונושאה לאשה בעל כרחה, יעכבו ישראל חשוב ונכבד, על זה לא הותר היפת תואר.

[11] The exact same point is made by the Gaon R. Shlomo Fisher, Beit Yishai (Jerusalem, 2004), p. 361:
. . . העיקר גדול שהשרישו לנו הקדמונים שדברה תורה כלשון בני אדם. והכונה היא לאותו לשון שדברו בו בני אדם באותו הדור שבו נאמרו הדברים.

Fisher uses this insight to explain Zechariah 4:10: שבעת אלה עיני ה’ המה משוטטים בכל הארץ

According to Fisher—and this is an incredible insight for a traditional interpreter (although it is already noted in the International Critical Commentary)— this verse alludes to the שבעה כוכבי לכת. These are the seven heavenly bodies identified already by ancient Babylonian astronomers: Mercury, Venus, Mars, Jupiter, Saturn, moon, and sun. Yet with the invention of the telescope we now know that there are more planets, meaning that Zechariah’s prophecy was based on a scientific error. But as Fisher explains, this is not a problem because as mentioned, prophecy is given in accord with the knowledge of the generation. Fisher adds that prophecy is also given in accord with the knowledge of the prophet, which in this case as with Ezekiel was based on a scientific error.
כי הנבואה תבא לו לנביא לפי תמונת העולם שבלבו

As an aside, I wonder why no one has tried to put Fisher’s book under a ban. While Slifkin stated that the Sages didn’t know everything about science, Fisher goes further and says that even the prophets didn’t know it all. He adopts the same approach to explain why classic Kabbalistic texts are based on outmoded scientific assumptions:

שחכמת הקבלה מיוסדת על תמונת העולם וחוקי הטבע שלפי חכמי יון, כגון, מציאות הגלגלים, ז’ כוכבי לכת, וד’ יסודות, וחומר וצורה. וההנחה שכל דבר נמשך למקורו.

Since I deal with R. Eleazar Ashkenazi ben Nathan ha-Bavli in this post, it is worth calling attention to his original understanding of the word שבועה. He sees it as related to the word seven, meaning that one who breaks an oath sins against God who controls the seven heavenly spheres. See Tzafnat Paneah, ed. Rappaport (Johannesburg, 1965), p. 69 (I think he means the seven spheres each of which contains a heavenly body, as opposed to the eighth sphere which contains the so-called כוכבי שבת, or fixed stars):

כי שם נשבעו בשבועת האלה. כי מי שיעבור על הברית ירבצו בו אלות מכח השבעה הגלגלים וזה סוד שם שבועה כי חלל שם ה’ המנהיג השבעה הגלגלים.
[12] Fisher, Beit Yishai, p. 361, accepts this interpretation of Maimonides. Ibn Caspi, Commentary to Guide 2:8, does not believe that Ezekiel’s actual prophecy could contain error. Rather, the error came during a dream of Ezekiel, not an actual prophecy. He also distinguishes between Sages who can err, as they are using their wisdom, and prophets who during actual prophecy do not err. However, when they are not prophesying they are susceptible to error like anyone else.
[13] Shalom Carmy took note of R. Kook’s comments and raised the following questions, without offering any answers:
It seems obvious that Rabbi Kook doesn’t advocate wholesale rejection of biblical statements. To do so would render Tanakh useless as a source of history. Under what circumstances would he countenance “deconstruction” of the text? Only where biblical texts contradict each other or rabbinic statements? Whenever the text appears to contradict well-attested Near Eastern documents? When the exact historicity is immaterial in the judgment of the exegete, to the import of the text? When the exegete detects rhetorical elements in the biblical text itself that point toward such interpretation?
See “A Room With a View, but a Room of Our Own,” in idem, ed., Modern Scholarship in the Study of Torah (Northvale, 1996), pp. 23-24.
[14] As Epstein, Mi-Kadmoniyot ha-Yehudim, pp. 125ff., has shown, Abarbanel used R. Eleazar’s commentary, even though he does not mention him by name (a characteristic that Abarbanel shows at other times as well).
[15] Tzafnat Paneah, p. 46.
[16] Ibid., p. 36. I think one can call this a conservative position with regard to biblical interpretation, but the language he uses to reject the aggadic view, הבל הוא, is quite provocative.
[17] In Guide 2:47 Maimonides says that the people mentioned in the Bible who lived so long were exceptional in this respect, either because of their diet, mode of living, or due to a miracle. R. Eleazar obviously does not see this as reflecting Maimonides’ true view.
[18] He writes (p. 30):

ואל תתמה על זה ואל יקל בעיניך זאת התחבולה הנכבדת שנתכוון אליה כדי לאמץ האמנת החדוש . . . ולזה הוצרך ע”ה לספר לנו חשבון השנים שעברו מזמן חדוש העולם עד זמננו, וזה היה עיקר גדול וצורך נפלא.
[19] Livyat Hen, ed. Kreisel (Beer Sheva, 2004), pp. 324ff. Here is the place to congratulate Howard Kreisel on the publication of the two volumes of Livyat Hen as well as R. Nissim of Marseilles’ Ma’aseh Nissim. As long as people study Jewish philosophy, they will use these editions. R. Joseph Kafih spent the last night of his life studying Ma’aseh Nissim. See Avivit Levi, Holekh Tamim (n.p., 2003), p. 226.
[20] R. Eleazar Ashkenazi, Tzafnat Paneah, p. 29, cites this approach in the name of Ibn Ezra, but he does not tell us where it is to be found in Ibn Ezra’s Torah commentary or other works.
אבל המשמע מדברי החכם ראב”ע ז”ל שהזקנים היו ראשי האבות לא שחיו המה כל כך.


Marc B. Shapiro – Forgery and the Halakhic Process

Forgery and the Halakhic Process
by Marc B. Shapiro


What is the role of academic learning in the determination of halakhah? In particular, I am referring to knowledge which is not available to the posek and which would affect his halakhic decision. This is, of course, a wide-ranging issue of which I will only discuss one aspect here, that relating to forgery. However, since the issue of the Mosaic text and R. Moshe Feinstein is relevant here, and I mentioned both of them in my last posting, let me make a few brief preliminary comments on this.


In The Limits of Orthodox Theology I quoted the following comment of R. Bezalel Naor, who was quoting his teacher, the Gaon R. Shlomo Fisher of Jerusalem: “The truth, known to Torah scholars, is that Maimonides’ formulation of the tenets of Jewish belief is far from universally accepted.” For those who don’t know, R. Fisher is one of the gedolim of our time, and you can see many of his shiurim on yeshiva.org.il. Many of these shiurim focus on Talmud (and he has published the great rabbinic work, Beit Yishai), but R. Fisher is also the only one of our gedolim who is an expert in Jewish philosophy. This explains why his Derashot Beit Yishai are very different than other collections of derashot. Professor Zev Harvey told me that from R. Fisher’s edition of Crescas’ Or ha-Shem, it is clear that he used Wolfson’s Hebrew text found in Crescas’ Critique of Aristotle.[1]

Someone I know currently attends R. Fisher’s weekly shiur on Avnei Miluim, the last half-hour of which is devoted to issues of hashkafah. Interestingly enough, he reported to me that a few weeks ago R. Fisher declared that he believes the Rambam abandoned his system of 13 Principles, the proof being that they are never mentioned as a unit in the Mishneh Torah.[2] In my book, I noted that R. Shlomo Goren held the same view. R. Goren also makes another interesting point, that while in the Commentary on the Mishnah Maimonides requires one to actually believe in certain principles, in the Mishneh Torah he only requires you not to deny any principles. One who has never heard of a principle obviously does not believe in it, which makes him a heretic according to the Commentary on the Mishnah. But according to the Mishneh Torah, since this person does not actually deny the principle, he is not regarded as a heretic.


Getting back to R. Moshe, as is well known, he ruled that the Commentary of R. Yehudah he-Hasid was a forgery, as he could not imagine that a rishon would acknowledge that there were some post-Mosaic passages in the Torah.[3] Only after my book appeared did Rabbi Naor tell me that the comment I quoted above in the name of R. Fisher was stated precisely with reference to R. Moshe’s positon on this issue. After R. Moshe banned R. Yehudah he-Hasid’s Commentary, R. Fisher commented that R. Moshe assumes that R. Yehudah he-Hasid has to accept the Rambam’s Principles, but in truth there were many disagreements with the Rambam, and R. Yehudah he-Hasid’s position on Mosaic authorship is one of them.

Along these lines, I read a recent shiur by R. Moshe Zuriel, a well-known baal machashavah in which he affirmed that all must accept the Thirteen Principles. I wrote to him asking what he would say about those who accepted the views of sages who disagreed with the Rambam, and I specifically referred to Ibn Ezra’s (exoteric) position that the last twelve verses were written by Joshua, which is a rejection of Maimonides’ insistence in the Eighth Principle that the entire Torah is Mosaic. He replied (emphasis added):

ודאי אני מודה שהסומך על ראב”ע (או אברבנאל וכיו”ב) ביחס לפסוקים הנוספים, איננו
נחשב לכופר, והוא נחשב ישראל . . . וכן כל דבר שיש מחלוקת ראשונים
In fact, in addition to the sources I cited in my book, Ralbag also says something interesting in this regard. Joshua 24:6 states:
ויכתב יהושע את הדברים האלה בספר תורת א-להים
Regarding this verse, the Talmud records a view that the reference is to the last eight verses of the Torah. But Ralbag explains it as referring to different verses:

ויכרת יהושע ברית לעם: על זה להיותם עובדים את ה’ ולהשאיר זכר לזה המעשה למען יבושו ישראל אם יסורו מאחרי ה’ כתב יהושע את הדברים האלה בספר תורת הא-להים

Another relevant source, which I also recently found, is R. Solomon David Sassoon, who wrote as follows (Natan Hokhmah li-Shelomo, p. 106; emphasis in original):

הדגש הוא על מה שאומר כי משה אמר זה מפי עצמו, אבל אם יאמר פסוקים אלה נביא אחר כתב אותם מפי הגבורה ומודה שקטע זה הוא מן השמים ומפי הגבורה, אדם שאומר כך אינו נקרא אפיקורוס, מה שהגדיר אותו כאפיקורוס אינו זה שאמר שלא משה כתב את הקטע אלא בזה שהוא אומר שדבר שזה מדעתו ומפי עצמו אמרו ושאין זה מן השמים

According to R. Sassoon, one who believes that parts of the Torah were written by a post-Mosaic prophet is not a heretic. (In another post I might speak more about the great R. Sassoon and his unique family.)

One of the strange passages in R. Yehudah he-Hasid’s Commentary is his assertion that the Hallel ha-Gadol (Psalm 136) was originally part of the Pentateuch and was later removed by David and placed in the Book of Psalms. In my book I note that this idea is also found in both R. Avigdor Katz (a rishon) and R. Menahem Zioni. I wrote: “Apparently, there was some tradition regarding this verse, the source and nature of which is unknown.” After my book appeared, R. Yaakov Hayyim Sofer published his Hadar Yaakov, vol. 1. On page 39, he notes that in two works of R. Eleazer ben Judah of Worms (the Rokeah), he mentions that Hallel ha-Gadol was recited by the Israelites at the Red Sea, a notion that is not found in extant rabbinic literature. (In Pesahim 117a it states that they recited the regular Hallel.) In R. Eleazar’s Siddur, p. 214, he cites Seder Olam as the source for this tradition. The editors refer the reader to Seder Olam Rabbah, yet nothing relevant appears there. Either R. Eleazar had a different version or he was referring to another book with this title. What is important for our purposes is that this tradition ties in with what is quoted by R. Yehudah he-Hasid and R. Avigdor Katz, even though the Rokeah doesn’t mention anything about this section being removed by David. Hopefully, more research into the writings of Ashkenazic rishonim will further illuminate matters.

Let me now speak of another issue, not of falsely ascribing forgery where there is none, but accepting as authentic that which is actually a forgery. The classic example is, of course, Besamim Rosh. There is no doubt that the volume is a forgery. There are those who have believed that at least some of the responsa are authentic, but it is more likely that the non-controversial material is a smokescreen for the controversial responsa. I plan to write an article about Besamim Rosh so I will not now reveal an internal proof, arrived at by use of a computer, that the book is a forgery. In an earlier article, I called attention to the fact that the Besamim Rosh assumes that a suicide has no share in the world to come, which is a popular 18th century conception, but not found among Ashkenazic or Sephardic rishonim.[4]

There is a talmid hakham, Rabbi Reuven Amar, who republished the Besamim Rosh and argues in his introduction that Saul Berlin was one of the gedolim. For all of his talmudic learning, Amar is very ignorant in this matter. He knows nothing about the history of Berlin and his haskalah ties. If he did, he would not have wanted to defend him. Yet Amar did know that many halakhic authorities quoted the Besamim Rosh, and he therefore wanted to turn it into a kosher book.

The problem Amar was faced with is what concerns me. What is one supposed to do with pesakim that rely on the Besamim Rosh? Fortunately, there can’t be many. In fact, offhand, I don’t know of any responsum in which a decision is based entirely, or even heavily, on Besamim Rosh, so that if you took this work away the decision would fall.

However, this is not the case with another forgery, as here the forgery is cited by all halakhic authorities of the last 140 years. I am referring to the Sefer ha-Eshkol, attributed to Rabbi Abraham ben Isaac. It was published by Rabbi Zvi Benjamin Auerbach (1808-1878), one of the leading German rabbis of his time. He was also the most prominent member of the famous Auerbach rabbinic family, which together with the Bamberger and Carlebach families (the ABCs, as they were known) were the most prominent rabbinic families in Germany.

According to Auerbach, his Sefer ha-Eshkol came from a Spanish manuscript. The work quickly became popular among scholars and was adorned with Auerbach’s commentary Nahal Eshkol, which is a mine of rabbinic knowledge. It came as quite a shock when in 1909, many years after Auerbach had died, the great scholar R. Shalom Albeck accused him of having invented the story of the Spanish manuscript in order to enable him to forge the work. This accusation aroused a great storm and four of the leading Orthodox scholars – David Zvi Hoffmann, Abraham Berliner, Jacob Schor, and Hanokh Ehrentreau – rushed to defend Auerbach, publishing the booklet Tzidkat ha-Tzadik (Berlin, 1910).

It is obvious that Auerbach’s defenders never gave Albeck’s charge any serious consideration. In their eyes, the fact that Auerbach was universally regarded as a tzadik, as well as one of the gedolim of Germany, rendered the accusation invalid from the start. There was no way they could impartially consider the evidence. In their mind they knew that for a pious Jew, some things are just impossible. Albeck responded to Tzidkat ha-Tzadik with the booklet Kofer ha-Eshkol (Warsaw, 1911), which explains how Albeck knew that the work is a forgery. In discussing the dispute between the four scholars on one side, and Albeck on the other, R. Shlomo Yosef Zevin[5] showed which side he was on.


אחד מול ארבעה – וההרגשה היא, שהנצחון לצדו של האחד

As far as I know, every academic scholar who has examined the evidence has concluded that Albeck is correct, and Auerbach’s Sefer ha-Eshkol is a forgery. This is so despite the defense of Auerbach by Issachar Dov (Bernard) Bergman in his essay in the Joshua Finkel Festschrift (New York, 1974;[6] it also appears in Sefer ha-Eshkol, vol. 4 [Jerusalem, 1986]).[7]

Needless to say, the supposed Spanish manuscript has never been found. In the words of Prof. Haym Soloveitchik, “Auerbach’s Eshkol appears as a clear forgery, incorporating arguments found in sixteenth, seventeenth, and even eightennth-century writings. . . . [The work] should not be used for historical purposes.[8] For this reason, I criticized Avi Sagi and Zvi Zohar for citing Auerbach’s Eshkol in their Giyur u-Zehut Yehudit.[9] R. Bezalel Naor writes:
I was told the following anecdote by Rabbi Aharon Lichtenstein. Licthenstein’s father-in-law, Rabbi Joseph Baer Soloveitchik (of Boston) expressed to Rabbi [Hayyim] Heller his amazement that the same obscure opinion of Mordecai in Niddah was to be found in the Eshkol, to which his mentor Hayyim Heller responded: “That is all?! You can find in Auerbach’s Eshkol a peckel Peri Megadims.” (Yiddish, a pack of Peri Megadim). . . . Prof. S.Z. Leiman informs me he found other irregularities in Auerbach’s historical works.”[10]
The late Prof. Israel M. Ta-Shma assumed that Auerbach’s Eshkol is a fourteenth-century forgery that he innocently published.[11] In discussing the issue, Ta-Shma makes the following incredible statement:

לדעתי עשה זאת משה די ליאון, וכך שמעתי גם מפי חברי פרופ’ י. זוסמן

De Leon is commonly said to have died in 1305, so unless the forgery was done at the very end of his life, we would be dealing with a 13th century forgery. In his Ha-Nigleh she-ba-Nistar, p. 144 n. 203, Ta Shma indeed writes

ויש רגליים לדבר כי זיופו, במגמה לקרבו לספר הזהר ותכניו, נעשה כבר במאה הי”ג

Yet Ta-Shma’s assumption doesn’t take into account that Auerbach’s Eshkol almost certainly contains material from later centuries. Furthermore, Ta-Shma ignored the well-founded assumption Auerbach forged other documents. According to Moshe Samet, some of Auerbach’s forgeries were actually designed to further a Neo-Orthodox agenda.[12] (It is well known that people who forge rarely do so once. Rather, seeing that they got away with it, they continue in this path, getting some sort of perverse pleasure from fooling the world.)

In Mordechai Breuer’s Modernity Within Tradition, p. 202, in discussing Orthodox scholarship and how it was often not rated highly by others because of its binding preconceptions, he writes:

One such example was the attempt of some scholars, especially R. Kirchheim in Frankfurt and Schalom Albeck in Poland, to expose the chief scholarly work of the late Rabbi B.H. Auerbach of Halberstadt (Ha-Eshkol, with commentary and notes, Nahal Eshkol, Halberstadt, 1861), as a plagiarism and a forgery. In spite of certain discrepancies in Auerbach’s work, this attempt failed after his defenders could prove that the attacks had not been free of prejudice.

In Between The Yeshiva World and Modern Orthodoxy, p. 77 n. 8, I responded to this as follows:

Breuer seems to be mistaken in pointing to the dispute over the authenticity of B. H. Auerbach’s edition of the Eshkol as an example of this phenomenon [i.e., Orthodox scholarship being looked down on]. To begin with, the main assault on Auerbach was led by Shalom Albeck (1858-1920), himself an Orthodox Jew. Secondly, this dispute had nothing to do with dogma interfering with scholarship, but was simply a question of whether Auerbach had forged the text. Finally, it is not so clear that Albeck’s attempt failed, as Breuer would have it. On the contrary, the authenticity of Auerbach’s edition is still highly questionable.
When I wrote this paragraph I didn’t want to appear disrespectful to Prof. Breuer, which is why I used soft language. In truth, as far as scholars of medieval halakhic literature are concerned, Albeck was entirely successful. As I note above, the attack of Albeck on Auerbach had nothing to do with the sort of “Orthodox scholarship” Breuer was referrring to, and which was subject to criticism by non-Orthodox scholars. Albeck wasn’t attacking Auerbach because of his supposed Orthodox close-mindedness.

Yet the point Breuer makes actually has relevance to another aspect of this dispute, and here I refer to the defense of Auerbach by the four scholars. Here we do find dogma of a sort, since they make it clear in their defense that the whole accusation is ipso facto invalid, and they even cite the Rambam, Commentary to Avot 1:6, that if you see a tzaddik do something that looks like a sin, you must assume that there is a reasonable explanation, even if it is very far-fetched.

Albeck’s response to this is that the Rambam is referring to a tzaddik who commits a sin between him and God, but not someone who


מתעה את לבות גדולי ישראל מורי ההלכה ודורשי החכמה, ודאי מצוה וחובה על כל איש המכיר בו, להוציא את בלעו מפיו, למען יהיה לאות לבני מרי, ולא יוסיפו לחלל ש”ש ולזייף את התורה

The issue mentioned by Albeck, that of the poskim being misled by a forgery, is what I would now like to raise. What is one to do if one sees that a posek has decided a halakhah based on the forged Eshkol? Is this person obligated to reject the pesak, or can he rely on the authority of the posek, even though the posek himself was misled. This obviously has implications for the use of the Zohar in pesak as well, as the poskim regard it as a tannaitic work. Yet I think everyone outside of the haredi community who has studied the issue assumes that it is a medieval work.

Rabbi Jehiel Jacob Weinberg raised a similar concern with regard to the Shulhan Arukh. There are certain halakhot which are based on false readings. He wondered if in a case like this we have to establish a new halakhah, or since we have accepted the Shulhan Arukh’s ruling we don’t change the halakhah but rather find a different justification for it.

Some might also see some connection with another position of R. Weinberg. As I noted in my book. R. Tam’s states that sex with a Gentile does not cause a woman to become forbidden to her husband. R. Weinberg had ethical problems with the reason R. Tam gives, and I don’t think it goes too far to say that he thought that, from our modern perspective, R. Tam’s justification is to be regarded as immoral.[13] Yet I also note that in seeking to find a heter for a woman who committed adultery with a non-Jew to return to her husband he is prepared to make use of R. Tam’s position.[14] I don’t think this raises any problems, since at the end of the day, R. Tam’s position is part of the halakhic tradition. If it can be used to to reach a lenient decision, then it serves a purpose, even if the contemporary posek doesn’t agree with the underlying assumptions of R. Tam’s pesak (Parallel to this is the widely accepted view that there is nothing wrong with using information derived from Nazi experiments on humans if it can help people. Obviously, everyone agrees that the experiments should never have been carried out, but once they were, the information can be used) As I said, I don’t see this as problematic, but I mention it since some might see it as an inconsistency in R. Weinberg.

An example which is more directly relevant is the following. In June of this year Prof. David Berger gave a presentation at Yeshivat Chovevei Torah on Jewish views of Christianity (as well as how to relate to Chabad). In his discussion of Christianity he explained the concept of shittuf, first mentioned by the Tosafists, and how in its original meaning it did not mean that non-Jews are permitted to believe in one God divided into different parts. Those who want the details on this can see Katz’ discussion in Exclusiveness and Tolerance. Katz was the first academic scholar to point to what he regarded as the common misinterpretation of the Tosafot. In addition, a number of poskim have concluded similarly, most notably the son of the Noda bi-Yehudah, whose responsum was published in his father’s work.

In my response to Berger I asked the following question (addressing myself to him):

You are certain that the common understanding of Tosafot is mistaken. Yet this understanding became the standard for poskim in Western Europe. It is also shared by the Rama. Do you feel that there is anything wrong with someone who agrees with you as to the historical truth nevertheless relying on those poskim who misinterpreted the Tosafot? In other words, do the decisions of the poskim based on Tosafot have independent validity even if their interpretation of Tosafot is incorrect?[15a]
Prof. Berger replied that he did not regard as illegitimate to rely on a pesak even if from the standpoint of historical scholarship, the pesak is incorrect. In the case we were discussing, one could legitimately rely on heterim which are based on the notion that according to Tosafot Gentiles are not obligated in shittuf, even though from a historical, i.e., factual perspective, Tosafot never said this. Historical truth and halakhic pesak thus occupy different realms.

While I understand Berger’s point, I think some reading this might be very uncomfortable with such a notion, namely, that one can have a historical truth and a halakhic truth, with the two being at odds with each other; or to put it another way, that a halakhic truth can be based on a historical error and yet still have validity. This brings us dangerously close to the old Latin Averroist notion of “double truth.” [15b]


Returning to Auerbach’s Eshkol, I am aware of only one posek who has refused to grant it any validity, and I daresay that the overwhelming majority of poskim are not even aware that it has been subject to controversy. The posek I am referring to is Rabbi Yitzhak Ratsaby. For those who don’t know, R. Ratsaby is one of the leading – if not the leadiing – Yemenite posek in Israel. He is an incredible scholar whose many works are particularly valuable as he records a variety of Yemenite practices and quotes from relatively unknown Yemenite writings, including from manuscript. He comes from the Kabbalah-friendly Yemenites, as uses the appellation of אחר in referring to R. Joseph Kafih. [16] Reflecting the typical haredi outlook, when he needs to refer to R. Kook, he writes “הרא”ק.” Doing so denies R. Kook the rabbinic titles given other great rabbis, and also spares haredi eyes from even seeing the name “Kook” in print.[17] Most haredi readers won’t even recognize who he is referring to. This is particularly unfortunate as it was R. Kook who stood together with many of the great Yemenite rabbis in opposing R. Yihye Kafih’s anti-Kabbalah stand. In Emunat ha-Shem, the volume published against R. Yihye Kafih, R. Kook’s two letters appear at the beginning. R. Kook is referred to as

רבנו הכהן הגדול נר ישראל וקדושו גדול הדור ונזרו מרן

R. Ratsaby is an example of how Ashkenazic haredi extremism and close-mindedness has also influenced those who do not come from this tradition.

Despite this flaw, there are many very interesting things in his works. Because my last post dealt with issues of dogma, let me refer to what R. Ratsaby states in Olat Yitzhak vol. 2 no. 259. He refers to the list of 24 heretics with no share in the world to come, enumerated by Rambam in Hilkhot Teshuvah, ch. 3. Among those are people who say there is no God, or there is more than one god – in other words, classic heretics. But according to R. Ratsaby, even though these people are heretics with no share in the world to come, that doesn’t mean that they can’t fulfill someone else’s religious obligation. As R. Ratsaby puts it

אפילו אותן עשרים וארבעה והנוספים עליהם שברור ומוסכם שאין להן חלק לעוה”ב, לא שמענו שאינן מוציאין אחרים ידי חובתן בברכות וכיוצא בזה, דסוף סוף הוא מחוייב בדבר וכל המחוייב מוציא יד”ח

R. Ratsaby is not referring to allowing such a person to daven for the amud, for which someone must be a proper Jew. Rather, he is speaking of the halakhah per se, i.e., if a heretic can be motzi someone else. I think the instinctive response of people would be that, of course, someone who is a heretic cannot be motzi someone else, and R. Moshe Feinstein states so explicitly. R. Ratsaby removes the issue from one of belief, and instead focuses on the obligation.which all Jews share.

In this same teshuvah, R. Ratsaby also points out something else quite interesting. Following the list of the twenty four who have no share in the world to come, Rambam gives a list of another group who, if they persist in certain evil actions (e.g., embarrassing someone in public, shaming scholars, etc.) also have no share in the world to come. He quotes R. Avraham ben ha-Rambam (hiddushim at the beginning of Ma’aseh Rakah) who cites his father as explaining that the way this works is that someone who is accustomed to do such bad things things will, almost of necessity, not be inclined to do what needs to be done to achieve immortality. In fact, it is much more likely that he will be led to those sins that really do deprive you of the world to come. But one should not take what Rambam writes literally, namely, that these sins by themselves cause one to lose his share in the world to come.


Returning to the Eshkol, many years ago I was studying R. Ratsaby’s Olat Yitzhak, vol. 1, and on page 410 I came across the following:

לענ”ד אין לחוש לדברים מחודשים שבספר זה שהוא בחשש גדול של זיוף, ואין להכחיש מה שהלב מרגיש

I found this quite amazing, since I knew of no other posek that recognized what modern scholars had determined. I was curious if he came to this on his own or had read Albeck’s pamphlet. He replied to me on 13 Iyar 5750


חשד הזיוף אצלי הוא מתוך העיון בדברים החדשים שם בקרב הראשונים ולקוחים מדברי אחרים (מה שראיתי דר”כ [=דרך כלל] היה לקוח מהבית יוסף) וגם הסגנון, שחנני השי”ת להכיר כזאת בטביעות-עין והלואי שאני טועה, אבל רחוק בעיניי מלצרפו עכ”פ לענין הלכה. ספר כופר האשכול לא בא לידי


I wrote back to him asking why, if he regards Auerbach as a forger, does he cite the Nahal Eshkol. He replied

נחל אשכול שאני מביא על אף החשד שלי נגד ספר האשכול גופו משום שאין לפסול גוף הדברים אם הם ניתנים להאמר מצד עצמם, רק לא לסמוך על ספר האשכול כמשקל בהכרעה בהלכה

R. Ovadiah Yosef offers the same justification in his haskamah to Amar’s 1983 edition of Besamim Rosh

חרף הביקורת שנמתחה על הספר “בשמים ראש”, במילי מעלייתא דאית ביה דרשינן

The last words come from Sanhedrin 100b, where R. Joseph says about the book of Ben Sira, “we may expound the good things it contains.” It would seem that using this logic, there can be no objection to studying the talmudic commentaries and halakhic writings of non-Orthodox rabbis, since one might find there a good argument or explanation of the sources. After all, Saul Berlin, the forger of Besamim Rosh, was a subversive, trying to destroy traditional Judaism from within. This makes him much worse than the typical Reform rabbi who has nothing to do with the Orthodox.


The summer is fast coming to an end, and with it, my free time to write things like this. But I have a number of other examples of forgery which I might post here, if people are interested (I am saving my examples of censorship for the book which I am hard at work on). Many people have told me that they like my “derekh agavs,” so I threw a lot of them in here, and I apologize to those who don’t like the many tangents.


Appendix


Since I don’t know when I will have a chance to write a new introduction to my book, and it is once again in the news with Rabbi Leff’s review, let me quote the following passages from R. Kook’s Shemonah Kevatzim 1:30-31 (I hope that R. Kook is still an acceptable authority for Jewish Action). Two important things stand out. First, while not condoning orthopraxy, R. Kook states that one who is observant, despite the fact that he denies ikkarim, is to be regarded as an erring Jew, not as a heretic. R. Kook’s position is a complete rejection of the idea that people who are shomrei Torah u-mitzvot can be read out of the fold and be regarded as heretics because of their incorrect beliefs. The second important point is that he rejects the Rambam’s entire theological conception of Principles of Faith and alligns himself with the Ra’avad, showing once again that the Rambam’s position has not attained unanimity.

אף על פי שהטעות בדברים האלהיים הוא דבר מזיק עד מאוד, מכל מקום אין עיקר ההיזק הנמשך מהמושגים המשובשים יוצא אל הפועל, עד כדי להמית את בעליו מיתת נשמה, רק כשהוא מתגלם במעשים, או לפחות כשהוא יורד לתוך דעות ורגשות כאלה שסופן מוכרח להתגלות במעשים. אבל כל זמן שהדבר עומד בצורתו המופשטת, אין כאן עקירה עקרית
ובזה הננו קרובים לסברת הראב”ד, שהשיג על הרמב”ם במה שקרא למי שמאמין ההגשמה באלהות מין. ונוכל להסכים, שכל זמן שאותו המגשם לא יעשה לו פסל ותמונה, הרי לא גמר את מחשבתו, ונשארה היא עדיין בחוג הרוח שלא תוכל להיות נכללת בשם עקירה ויציאה מן הדת

In a wide-ranging article which deals among other things with R. Kook’s view of heresy, the important scholar R Yoel Bin Nun[19] explains why R. Kook rejected the Rambam’s approach to heresy. R. Bin Nun also states that if you take what the Rambam says seriously, the Rambam himself, if he were alive today and saw how Aristotelian science has been overthrown, would not regard people who disagreed with his principles as heretics. In R. Bin Nun’s words (emphasis added):[19]

שיטת הרמב”ם ברורה: יסוד שתלוי באמונה, ואין בו הוכחה שכלית, וכל החכמים מתווכים עליו, אי אפשר להגדיר את מי שאינו מאמין בו כ”כופר” או כ”מין”. עצם העובדה שהדבר נתון בוויכוח שכלי בין החכמים מאפשר ומחייב לבנות על עולם האמונה, אך אינו מאפשר לשפוט ולדון את הכופרים. רק ודאות שכלית מוחלטת מאפשרת לדון אדם כמזיד בשאלות של אמונה וידיעה

In other words, according to R. Bin Nun there is no justification today for calling people heretics because they reject one (or more) of the Thirteen Principles.[20] (when he refers to hakhamim disputing matters, he is not referring to Torah scholars, but the general scientific-intellectual world). Whether R. Bin Nun is correct in his analysis of Rambam is not my purpose at present; I only wish to show that this outstanding rabbinic figure has a very tolerant view, one which rejects the Thriteen Principles as determining who is a heretic.

Notes:
A future post will deal with other issues of this controversy, and at that time S. Z. Havlin’s article on the issue in Yeshurun vol. 13 will be discussed.

[1] Professor Isadore Twersky once mentioned in class that although this book’s title should have mentioned Maimonides, in 1929 Harvard University Press would not publish a book with such a title. In this regard, he also called attention to the title of Sarah Heller Wilensky’s doctoral dissertation, “The Teaching of Issac Arama in the Framework of Philonic Philosophy.” This, too, is a false title, and the subject of the dissertation is seen more clearly by the title of the Hebrew book: R. Yitzhak Arama u-Mishnato. As Twersky explained, Harvard’s Department of Near Eastern Languages and Civilizations did not want a dissertation on a Spanish Jewish thinker unless it was given a more universal theme, hence the “Philonic Philosophy,” an allusion to Wolfson’s theory of philosophy, but this was put in just for show. Incidentally, Fisher’s edition of Or ha-Shem is responsible for my taking credit as being the only student ever to have made Prof. Twersky laugh in class. It was the 1990-1991 year and we were studying Crescas in his seminar. Twersky would often ask me to read, during the course of which he would often correct my pronounciation. When Fisher’s edition of Crescas appeared I immediately bought it and brought it to class. When Twersky called upon me to read, I replied that this time he wa not going to be able to correct my pronounciation. He asked, “why not?” to which I replied, holding up my new book, that I just purchased a new edition of Or ha-Shem, and it is “menikid.” This was too much for even the eternally staid Twersky, and he too was brought to a chuckle. (From inyana de-yoma, someone asked me if Noah Feldman studied with Prof. Twersky. He was not in any of Twersky’s seminars that year. He was, however, in Prof. Septimus’ seminar as well as that of Prof. Leiman, who was at Harvard in fall 1989 as a visiting scholar. In those years, long before he became famous [now, notorious] I would often tell people that one of my fellow students, an undergraduate taking graduate classes, was perhaps the most brilliant person I knew – a much better head than mine – and I have known many intellectual heavyweights. Yet I have read some people, who certainly don’t know him, describing Feldman as an expert in Shas and poskim. This is laughable. He has a great mind, and can grasp a Tosafot quicker than almost anyone, but he never spent any serious time in limudei kodesh after high school. I think my father best summed matters up after reading his article. He said: “Feldman may be very smart, but he isn’t very wise.”).

[2] R. Fisher has also expressed his support for the position of those rishonim – in opposition to the Rambam and R. Chaim Soloveitchik – who believe that one who, through no fault of his own, holds a heretical view is not to be regarded as a heretic.

[3] R. Moshe also detected a forgery in that R. Yehudah he-Hasid asks why homosexuality is forbidden, and then explains that the prohibition is to ensure that men procreate. According to R. Moshe, even asking such a question, and offering such a weak explanation, is a sign that the passage was not written by R. Yehudah he-Hasid but by a gay-friendly subversive. Yet as R. Chaim Rapoport points out, R. Yehudah he-Hasid is also quoted saying the same thing in the medieval Moshav Zekeinim al ha-Torah. Furthermore, the explanation he offers is also found in Ramban, Sefer ha-Hinnukh and Radbaz. See Rapoport, Judaism and Homosexuality: An Authentic Orthodox View (London, 2004), pp. 155-156.

[4] See my “Suicide and the World to Come,” AJS Review 18.2 (1993): 257 n. 54. Perhaps Prof. Shlomo Zalman Havlin will also use a computer to prove the forgery, much like he used a computer to show that R. Joseph Hayyim also wrote the book Torah li-Shma (link).

[5] Soferim u-Sefarim (Tel Aviv, 1959), p. 107.

[6] See also D. Simonsen, “Ueber die Vorlage des Sefer ha-Eshkol,” in Studies in Jewish Bibliography and Related Subjects in Memory of Abraham Solomon Freidus (New York, 1929), pp. 290-291.

[7] Israel M. Ta-Shma writes, concerning this defense (falsely attributing it to the editors of Sefer ha-Eshkol, vol. 4, rather than Bergman):

אולם לא מפיהם אנו חיים, ואילו זקוק היה הרב אויערבך להגנתם זו היה לוקה בכפלים

See Rabbi Zerahyah ha-Levi Ba’al ha-Meor u-Venei Hugo (Jerusalem, 1992), p. 40 n. 27.

[8] Haym Soloveitchik, “Review of Olam ke-Minhago Noheg, by Yishaq (Eric) Zimmer,” AJS Review 23.2 (1998): 227-228.

[9] See my “Review of Circles of Jewish Identity: A Study in Halakhic Literature by Avi Sagi and Zvi Zohar,” AJS Review 27.1 (2003): 120-122.

[10] Post-Sabbatian Sabbatianism (Spring Valley, 1999), p. 209.

[11] Rabbi Zerahyah ha-Levi Ba’al ha-Meor u-Venei Hugo, pp. 40-41.

[12] He-Hadash Asur min ha-Torah (Jersualem, 2005), pp. 69-70, 152 n. 255.

[13] Regarding judging positions of rishonim as immoral, R. Shlomo Aviner writes (Am ve-Arzto (Jerusalem, 2002), vol. 2 pp. 436-437):

וברור שבהלכה פנים לכאן ולכאן. לכן כיוון שנתיבים אלה הם נתיבים מוסריים יותר, עלינו להכריע על פיהם. לפעמים ההלכה מוכרעת, בגלל שעת הדחק, ולפעמים ההלכה מוכרעת כי כך המנהג. אם כן, בימינו ‘המנהג’ הוא להיות מוסרי . . . שאלה: האם ראשונים אחרים, שלא סוברים כרש”י הם מוסריים פחות? תשובה: כולם מוסריים בתכלית המוסריות, אך יש גם מושגים מוסריים המשתנים על פי המציאות. אב הסוטר לבנו הקטן, אינו דומה לאב הסוטר לבנו בן השמונה עשרה. האם סטירת לחי לבנו היא מעשה מוסרי או לא מוסרי? תלוי בנסיבות. לא כל הכרעות הפוסקים הן הכרעות נצחיות. לכן מזכירים במשנה גם דעת יחיד כדי לסמוך עליה בעתיד (עדויות א, ה). במצבנו כיום ישנם שיקולים מוסריים שמצטרפים להכרעותינו ההלכתיות דוד המלך היה מודד אנשים בחבל, ובוודאי הוא ראה כורח מוסרי לנהוג כן. מרן הרב קוק מסביר, שלא היתה אז דרך אחרת להרתיע את הרשעים (איגרות א, ק). יתכן שבנסיבות שלנו, דוד לא היה נוהג כן

[14] Kitvei R. Weinberg, vol. 1, p. 58.

[15a] One should not assume that this is a verbatim transcription of my remarks, as they were not written out at the time.

[15b] Prof. Berger recently noted to Menachem Butler the following point: “At the same time, those realms [i.e., history and halakhah] are not so distinct that someone weighing the question of which position to adopt must, or even should, ignore his judgment about historical truth. Thus, I personally do not regard the pesak that Christianity is not avodah zarah for Gentiles as one I should adopt, even though it has desirable consequences. I do, however, grant legitimacy to an opinion affirmed by major authorities and do not quarrel with those who rely on it.”

[16] Olat Yitzhak, vol. 2, p. 51.

[17] See ibid., p. 440.

[18] See his biography at http://www.ykd.co.il/hebrew/hebrew.htm.

[19] “’Kahal Shogeg’ Hiloniyim ve-Hiloniyut be-Halakhah,” Akdamut 10 (2000), p. 263.

[20] For those who don’t have access to the article, I should note that when he refers to hakhamim disputing matters, he is not referring to Torah scholars, but the general scientific-intellectual world.