The Agunah Problem, Part 1; Incarceration and Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



Collection of Articles on Sabbatianism Online

The book The Sabbatian Movement and Its Aftermath: Messianism, Sabbatianism and Frankism, edited by Rachel Elior, is available online, in its entirety, for free (see here).

The book includes articles by Elisheva Carlebach, “The Sabbatian Posture of German Jewry,” Jacob J. Schacter, “Motivations for Radical Anti-Sabbatiansim: The Case of Hakham Zevi Ashkenazi,” as well as an excellent article in Hebrew by Moshe Fogal “Sabbatianism of the book Hemdat Yamim: A New Exploration.”




Gelatin, Abraham Goldstein, R. Moses Isserles, and More, Part 2

 Gelatin, Abraham Goldstein, R. Moses Isserles, and More

Marc B. Shapiro

Continued from here

Among the matters I discussed in the previous post were gelatin and consumption of the human body as part of a medical cure. Believe it or not, consumption of human parts not in the context of medicine is mentioned in a short responsum of R. Joseph Kafih. R. Kafih was asked if it permissible to drink various non-Jewish milk products and also gelatin produced from non-kosher animals. He is strict when it comes to milk—and apparently unaware of the widespread rabbinic approval in the United States for regular milk—but lenient regarding gelatin.[1] Incredibly, he assumes that some gelatin comes from human bones, and he believes that it is halakhically preferable to consume this instead of gelatin from animals (although the latter is kosher as well).

Here is an image of the letter sent to R. Kafih and his reply, followed by a transcription of the relevant sections.

האם מותר לאכול כיום:

חלב עכוםאבקת חלב עכוםחמאת עכוםגלטין המיוצר מנבלות וטרפות (במיוחד במוצרים המיובאים מחול בהשגחת הרבנות הראשית)?

חלב גוים נאסר במניןואין להתירואמנם רבני אמעריקא התירו אבקת חלב בשעתווהרבנות כאן סמכה על כך בזמנואך אין להתיר חלב גוי על סמך התר זהחמאת גוים מותרת כמש הרמבם מפני שכבר הלכו צחצוחי חלב שבה. ”ג”לטין‟ לדעתי אין להחמיר בובפרט העשוי מעצמות אדםכי בשר האדם עצמו בעשה להרמבםולאחרים אפלו מצות ”פרוש‟ אין בווכל שכן עצמותיו.

In the comments to the last post, two people referred to the responsa of R. Nahum Zvi Kornmehl as a source regarding gelatin. In the first part of R. Kornmehl’s Tiferet Tzvi, vol. 1, there is a long discussion about gelatin, and it is here that R. Aharon Kotler’s responsum on the topic first appeared. R. Kotler’s letter and other letters found in the sefer also deal with a “kosher gelatin” that was produced by Barton’s candy. R. Kornmehl was the mashgiach of Barton’s so it makes sense that he would be involved in this halakhic issue. What many people might not realize is that R. Kornmehl’s brother-in-law was Stephen Klein, the owner of Barton’s. (Everyone over 50 can certainly remember Barton’s, especially on Passover. Many children, myself included, went house to house taking Barton’s Passover orders. Depending on how much you sold, there were all sorts of great prizes.)

While it was obviously perfectly acceptable for R. Kornmehl to involve himself in the halakhic research regarding Barton’s gelatin, would any of our rabbis today accept a situation where the mashgiach of a factory is a close relative of the owner? I think they would say that this defeats the entire purpose of a mashgiach, whose job is to ensure that kashrut standards are at the highest level, and he is therefore not supposed to have any close personal connections with the owner.

Here is a picture of R. Kornmehl at the Barton’s factory, from Rabbi A. Leib Scheinbaum, The World that Was America 1900-1945 (Brooklyn, 2004), p. 415.

Returning to Abraham Goldstein, one can imagine what he would have said had he been told about R. Moses Isserles’ responsum, no. 54. Here R. Isserles states that there is no halakhic problem consuming olive oil that was stored in containers in which they used pig lard to smooth the surface. (He later notes that there is even stronger support for this ruling if there is only a suspicion, but no certainty, that they used lard on a particular barrel). This ruling by R. Isserles is the exact sort of thing that today we would be told is absolutely forbidden, and Goldstein certainly would have attacked any hashgachah that followed the Rama in this matter.

Interestingly, R. Hanokh Henoch Meyer of Sassov could not accept that the Rama would allow us to eat something that might have pork residue, and he therefore adopted the old approach when confronted with “problematic” texts, namely, asserting that this responsum was not written by R. Isserles. Rather, some student must have been responsible for it, as it is impossible for R. Meyer to believe that R. Isserles would write something that in his mind is so obviously incorrect.[2] R. Judah Leib Landau, in his well-known work Yad Yehudah, Yoreh Deah 103:20 (Perush ha-Arokh), also has his doubts that R. Isserles could have written the responsum:

ובאמת הדבר הוא לפלא מאוד אם יצאו כלל דברים אלו מפי קדשו של הרמא זל

This is the exact approach that was adopted by some in explaining another responsum of R. Isserles, where he justified those in his day who drank non-Jewish wine.[3] There is also another difficult and controversial responsum of R. Moses Isserles—see the discussion on the Seforim Blog here—and in this case R. Yitzhak Hutner also denies that the responsum was written by R. Isserles.[4]

R. Isserles’ opinion in responsum no. 54 is based on the fact that any pork residue would be less than 60, and also that the pork taste is to be regarded as something detrimental to the dish (noten ta’am lifgam). This is indeed a difficult point to understand, as why should pork be noten ta’am lifgam? You can look around and see that lots of people enjoy it. R. Shimon Grunfeld goes so far as to say that it was only because of R. Isserles’ great holiness, which caused him to view pork with such disgust, that he could make the error of seeing pork as noten ta’am lifgam.[5]

עוד דבר אחד חידוש פלא שכתב ששומן חזיר הוא פוגם בכל דבר כמו נבלה מוסרחת עיין שםוהיא תמיה גדולה שהרי אנו רואין כל העכום וכל השרים אוכלים אותו והוא עולה על שלחן מלכיםהן אמת שנפש איש ישראל קצה באכילת חזיר אבל הוא רק משום איסורי של תוהק שאסרה אותו ולכן כל איש ישראל כשרואה חזיר הוא מואס אותו אבל בשביל זה לא חשוב נטלפג דנטלפג היינו שמצד עצם הדבר הוא פוגם . . . ופשוט דאין לסמוך בזה על התשו‘ הנלובודאי שומן חזיר אוסר עד ס‘ או יותר כפי הרגשת הטעםוהרמא זל ברוב קדושתו מחמת איסור התורה על בשר חזיר הי‘ קצה ממנו ככ עד שפלטה קולמסו לכתוב שאינו אוסר משום שהוא פוגם

In his discussion about how pork is noten ta’am lifgam, R. Isserles also says something which I found strange. He writes:

דשאני חזיר דדבר מאוס הוא ביותר מכל שרצים שבעולםעד שאמרו לא יאמר אדם אי אפשי בבשר חזיר וכו‘ ולא אמרו שאר שרציםשמ דזה גרע טפי

R. Isserles cites a passage from Sifra, Kedoshim 9:10, which is quoted in Rashi, Leviticus 20:26, that one should not say that he is repulsed by pork, and that is why he doesn’t eat it, but rather he doesn’t eat it because of the Torah’s command. (Rashi’s version is different than what is found in our versions of the Sifra, and also what is quoted by R. Isserles, but the point is the same.) R. Isserles sees it as significant that of all the non-kosher foods that could have been cited, it is pork that is used as an example, which he believes shows that it is the most repulsive of the non-kosher foods.

The reason I find R. Isserles’ point strange is that R. Isserles’ understanding is the exact opposite of how the passages in Sifra and Rashi are usually understood. The common way of understanding, and I don’t know of anyone who has a different approach, is that you should not say that you are disgusted by pork, and that is why you are not eating it. On the contrary, there is nothing wrong with pork and it is undoubtedly quite tasty. However, we do not eat it because God commanded us not to. This reading appears explicitly in both the Sifra and Rashi, Here is what Rashi states:

רבי אלעזר בן עזריה אומר מנין שלא יאמר אדם נפשי קצה בבשר חזיראי אפשי ללבוש כלאיםאבל יאמר אפשיומה אעשה ואבי שבשמים גזר עלי

This is very different than R. Isserles’ understanding that the rabbinic teaching reinforces the point that we should have a natural aversion to pork, even though the reason for abstaining from it is due to God’s command.

After mentioning how we don’t eat pork, the passage continues in Rashi (and this is also how it is quoted in the Rambam, Shemonah Perakim, ch. 6, but not in our version of the Sifra) that the same lesson is applied to the wearing of sha’atnez. We shouldn’t say that we have no desire to wear it, but on the contrary, we should feel that it would be nice to wear it but we cannot because of the divine command. The Sifra also adds the same point about sexual relations, that we do not avoid it because we are repulsed. Rather, we would enjoy this but abstain because of the divine command. Since the passage cites both pork, sha’atnez, and forbidden sexual relations to teach the same lesson, and there is no natural aversion to sha’atnez and sexual relations, it is clear that just as we might wish to wear sha’atnez and have forbidden relations but avoid them because of the mitzvah, so too one should assume that eating pork would be enjoyable. However, we avoid it because of the mitzvah.

The Rambam elaborates on this point in Shemonah Perakim, ch. 6, and he specifically cites the rabbinic passage we have been discussing. He goes so far as to say “that a man needs to let his soul remain attracted to them [pork, sexual relations, etc.] and not place any obstacle before them other than the Law.” What this means in practice is next time you see lobster in the supermarket, don’t be repulsed by it and think it is disgusting. The Rambam, following the Sages, is telling us that we should say “wow, that looks good. I would really enjoy eating it but the Torah says I can’t.” Easier said than done, I realize, but that is what the Sages and the Rambam have told us.

Returning to R. Moses Isserles, the Taz, Yoreh Deah 108:4, quotes another ruling of his that today would not be regarded as acceptable. R. Isserles testifies that the practice was to buy certain food items cooked by non-Jews in their non-kosher pots (Torat ha-Hatat 35:1):[6]

המנהג להקל לקנות מן הגוים דברים המבושלים בכליהם שאין בהם משום בישול גוים (הוא) [הואילוסתם כליהם אינן בני יומןואעפ דנותן טעם לפגם אסור לכתחלהמכל מקום לא חשבינן הקנייה לכתחלהלכן נוהגים היתר פה קראקא לקנות האגוזים של מים שמבשלים הגויםאו שאר דברים

Regarding other leniencies of R. Isserles, R. Zerach Eidlitz[7] is quoted as saying that it would have been OK for R. Isserles to have omitted all the humrot he records if he also omitted two particular kulot: non-glatt meat (Yoreh Deah 39:13) and that it is permitted to eat worms found in cheese (Yoreh Deah 84:16):

נוהגים בתולעים של גבינה לאכלן אעפ שקופצין הנה והנה על הגבינה אבל אם פירשו לגמרי אוסרין אותן

Returning to Goldstein, he would have been outraged by other halakhic leniencies mentioned by outstanding poskim, but again, he approached matters using logic and intuitive feelings, while the halakhic rules do not always fall into line with this. For example, R. David Ibn Zimra, She’elot u-Teshuvot ha-Radbaz, no. 1032, defends eating meat together with sugar that was cooked with milk. He states that this is permissible because the milk is batel. R. Hayyim Vital testifies that R. Isaac Luria would himself eat such sugar with meat.[8] Not only would Goldstein have protested against this leniency, but to my knowledge there is no kashrut agency today that would give a hashgachah to a meat product that includes sugar cooked with milk.

Another famous responsum which Goldstein would not have been able to accept—and I know that many Orthodox Jews today also would not be able to accept it—is Noda bi-Yehudah, Yoreh Deah, tinyana,[9] no. 56. Here R. Yehezkel Landau permits a drink produced by non-Jews that included a small amount of non-kosher meat (assuming the meat is 1/60 or less). The meat did not add a taste, and R. Landau ruled that it was batel, meaning that the drink was kosher. I could go on with other such examples but I think you get the point, which is that when it comes to kashrut, great halakhic authorities have come to conclusions that are far from what the average Orthodox Jew would regard as acceptable.

The phenomenon of the masses sometimes having stricter views than the rabbis is an old story. In fact, I once spoke to R. Aharon Felder about kitniyot. At the time, R. Felder was the halakhic authority for the KOF-K. As is well known, kitniyot is batel be-rov (see e.g., Mishnah Berurah 453:9), so I asked him why the KOF-K does not put a hashgachah on products with corn syrup since it is batel. He replied: “The people don’t want it.” In other words, the people will not accept that something with kitniyot can be kosher for Passover, even if it is batel be-rov.[10]

R. Felder also told me that if he was asked he would tell people that there is no problem eating a product with kitniyot if it is batel be-rov. According to this approach, one is permitted to drink regular Coke on Passover, and this is indeed the pesak of R. Yitzhak Abadi. (The other issue that comes up with regular Coke is whether kitniyot derivatives are forbidden on Passover.) I realize that if you extrapolate the “halakhot” of kitniyot from Yoreh Deah halakhic principles about when bitul can be applied, there are sources that would be strict in dealing with kitniyot (as the kitniyot is put in as part of production, rather than accidentally falling in). But what is interesting, I think, is that pretty much all the rabbis I have asked about this have replied in the same way. Rather than explain why we don’t follow the principle that kitniyot is batel be-rov, they have stated simply that when it comes to Passover we are extra strict. (R. Hershel Schachter is an exception, and he told me that kitniyot intentionally put in the product is not to be regarded as batel.)

This issue was raised by R. Alfred Cohen a number of years ago:

With this in mind, we should take another look at the furor which in the past few years has arisen concerning chocolate and candy manufactured in Israel under the supervision of the Rabbinate. Many candies contain corn syrup as the sweetener: Should this be considered a problem for Ashkenazic Jews? Based on the principle that if kitniyot are less than half of the total the food may be eaten, many people see no reason why such candy should be avoided.[11]

Returning to the gelatin issue, we saw in the previous post that R. Yehuda Gershuni was one of the rabbis who gave the hashgachah on Jello. This is noteworthy, as in 1952 he wrote a lengthy article in support of the position of his father-in-law, R. Eliezer Silver, that gelatin is forbidden.[12] Either he later changed his mind or perhaps he never really thought gelatin was forbidden, but it was only out of respect for his father-in-law that wrote his lengthy article. It seems that only after his father-in-law died in 1968 did R. Gershuni publicly express his lenient opinion about gelatin. In addition to his hashgachah on Jello, R. Gershuni also gave the hashgachah to Hormel gelatin.[13]

Incidentally, I found another example where R. Gershuni significantly changed his position. In Ha-Pardes, June and August, 1957, R. Gershuni discusses Yom ha-Atzmaut. Surprisingly, knowing how Zionist he was, in these articles he is not very positive about Yom ha-Atzmaut. He even says that according to Nahmanides establishing this holiday is a violation of bal tosif. As for saying Hallel on Yom ha-Atzmaut, R. Gershuni brings a variety of sources according to which this is improper. Yet in 1961 he published an article with the exact opposite perspective, in which he writes of the great significance of Yom ha-Atzmaut and that Hallel should be recited on this day.[14]

Those who wish to see a video of R. Gershuni can view it here. As far as I can tell, this is the only video of him available online. It is from the 1990 Yom Yerushalayim celebration at Merkaz ha-Rav. You can also see R. Shlomo Fisher in attendance.

In addition to gelatin, my previous post dealt with some of the history of hashgachot in America in the 1930s. In those days, no one could have imagined all the different hashgachot we currently have, as well as the various products that are under kosher supervision. In previous posts here I already mentioned how you can now get toilet bowl cleaner with a hashgachah. Here is an American hashgachah.

And for those who live in Israel, here is one with an Israeli hashgachah (thanks to Stanley Emerson for the picture).

I also noted how in Israel you can buy lettuce with no less than six different hashgachot. See here. But it gets even better, as Shimon Steinmetz sent me this image which shows that you can now get romaine lettuce with seven different hashgachot. Do I hear eight . . . ?

Yet I don’t think Israel has what we have, namely, ant and roach killer under hashgachah. (It is pareve.)

(For those who are wondering, the date on upper right of the OU letters is the date that you view the document, not when the contract was signed.)

You can even get enzyme replacement injections under OU supervision. See here.

According to the OU, when they are “approached by companies whose products would not inherently need a hechsher, the OU tells them that certification is not necessary. But some companies request kosher certification because that will make Orthodox Jews more likely to buy them.”[15]

Interestingly, since today we take it for granted that all sorts of unnecessary hashgachot are found on various non-food items, in previous years this was seen in a very different light. In 1896 the New York newspaper Ha-Ivri, in an attack on the rabbinical board headed by R. Bernard Drachman, noted how the board had given hashgachot to salt, soap for washing clothes, and stove polish.[16] This scandalous charge was denied by R. Drachman, who noted that these hashgachot were given by a private individual, not his organization. R. Drachman writes as follows, and look how he describes the unnecessary hashgachot:[17]

ההכשרים המוזרים והמעוררים שחוק אשר רמזת עליהם לא מעשי הועד המה כי אם מעשי ידי איש יחיד

While we are on the subject of hashgachot, I think readers will find it of interest that the OU did not accept all the products certified by R. Soloveitchik in Boston, as his hashgachah did not always meet OU standards which had been established by R. Alexander Rosenberg. R. Berel Wein, who succeeded R. Rosenberg as rabbinic administrator of OU Kashrut, reports that he was constantly criticized for this as people thought it very disrespectful to the Rav that the OU did not accept his hashgachah in all matters. R. Wein, however, explains as follow:

In all my meetings with the Rav. I never discussed this sensitive matter with him. However, he once said to me, “As the rabbi of Boston, it is my duty to grant kashrut certification to products that are kosher, even if they don’t necessarily reach the highest standards of kashrut. I know you have to operate under a different set of rules. Don’t be troubled that the OU doesn’t use certain products I certify. I’m not troubled by it.” I never revealed that conversation to the Kashrut Committee, nor did I change OU policy.[18]

However, my question would be, how is the role of OU kashrut different than what the Rav was trying to do? Isn’t the goal of the OU also to ensure kashrut for all types of Jews? How is the role of a communal rabbi in giving a hashgachah for his community different than that of the OU, which is a nonprofit organization that exists to serve the larger Jewish community?

Since part 1 of this post discussed the OK hashgachah, it should be noted that at one time there were actually two hashgachot identified with the OK symbol. Here is an early OK symbol used by R. Harold Sharfman’s Kosher Overseers Association of America. (A different looking OK symbol was actually first used by his father, R. Hyman Sharfman, in 1927.)[19]

It later developed into what was called the Half-Moon K, surrounded by a circle.

This led to a lawsuit by the OK in the 1990s, with the result that the Half Moon K had to appear without the circle.[20] (I don’t know why, as we have seen on other occasions as well, a dispute between Orthodox rabbis was decided in a secular court instead of in a beit din.) After Rabbi Sharfman’s death, the Half-Moon K was taken over by the OU and its symbol was retired.

Sharfman authored a few interesting works focusing on American Jewish history. He also wrote the book, Global Guide to Kosher Foods and Restaurants (Malibu, 1990), from which the above pictures of the OK symbol were taken. The book’s title is not going to interest many, although the subtitle is more intriguing: “An Illustrated History of Kashruth in 20th Century United States.” This is a very rare book and I recently was able to acquire a copy. I was surprised to find that it is really a fascinating work with some great pictures. Because it is so rare I have made a PDF of the book which you can see here.

When it comes to kashrut supervision in the United States, Roger Horowitz mentions an interesting point that in the 1950s there were rabbis who opposed supermarkets selling kosher meat as they claimed that it was forbidden for the meat to be sold on Shabbat.[21] The real reason for the opposition was presumably to protect the kosher butchers from competition, but the argument was not framed in this fashion. I think most will be surprised by such a stringent approach. After all, we don’t want Sabbath violators to also consume non-kosher meat, so why prevent them from buying kosher if they are in the supermarket on Saturday? Yet when asked by R. Yitzhak Zilberstein, R. Elyashiv ruled that if people are going on a trip on Shabbat, and want to order kosher food from a caterer for the trip, that the caterer should not provide them with the food even though this means they will eat non-kosher.[22]

Another surprising development in the kashrut world is that the OU has recently refused to give a hashgachah to a vegetarian product called Impossible Pork. See the Yeshiva World article here, and see also the Wall Street Journal article here. As the Yeshiva World reports, “[Rabbi Menachem] Genack clarified that although [the] OU certifies items related to pork such as Trader Joe’s ‘spicy porkless plant-based snack rinds,’ the agency decided that certifying a product called ‘pork’ was a red line they aren’t willing to cross right now.” 

In the Wall Street Journal article Rabbi Genack is quoted as follows: “The decision was based on the emotional reaction some kosher eaters have had to kosher-certified pork-related products in the past that also had no actual pork in them.” So now company kashrut decisions are based on people’s emotional reactions? Sounds crazy to me. The article continues: “Rabbi Genack of OU Kosher says he suspects that doubters might one day come around and allow faux pork to be certified as kosher.” I don’t understand this at all. Since when does the OU have to get approval from “doubters” to put a hashgachah on a product? Furthermore, I must note, there are already OU certified products that have the name “bacon” in them and are said to taste like the real thing. This includes Bacos (see here), Bacon Flavored Bits (see here), and even a product called Bacon Bits Milk Chocolate (see here). And of course, the Talmud, Hullin 109b, talks about the shibuta fish whose brain tastes like pork.[23]

Since we have been speaking about kashrut in America, let me make one final point about this. Many people are under the impression that it was Jewish emigration to America that led people to give up kashrut, I must therefore call attention to a fascinating article by Asaf Kaniel that shows that in the years 1937-1939 only one third of the Jews of Warsaw bought kosher meat. Granted, this was a very difficult period for the Jews of Warsaw, and had economic circumstances been different I have no doubt that most of these people would have been buying kosher. However, from the large number who abandoned kashrut, we can get a sense as to how tenuous their attachment to this mitzvah was, as it is always the case that during difficult times the ones who are not so attached to something are the first to give it up.[24] (Kaniel also has another valuable article that shows the growth of irreligiosity in Vilna in the early twentieth century.[25])

I know people will be shocked by hearing this, about Warsaw of all places. So let me note that in a 1937 interview given when he was in the United States, R. Elhanan Wasserman stated that religious life in Poland was worse than in America.[26]

2. In my last post I cited something from R. Shmaryahu Shulman who unfortunately recently passed away. In 1951 R. Shulman published his Be’er Sarim which contains hiddushim on the Talmud.

In R. Yitzhak Ruderman’s approbation he states that this is the first book of hiddushim on Shas published by an American-born author. Is this true? I am not aware of anything earlier. As far as I know, the first traditional rabbinic sefer (not hiddushim on Shas) published by an American-born author is R. Eliezer Zvi Revel’s Otzar ha-Sotah (New York, 1941).

R. Eliezer Zvi was the son of R. Bernard Revel.

Is there an even earlier sefer published by an American-born author? There is another sefer that I am aware of, but as it is not an original sefer, I gave Revel the honors. The other sefer was published by R. Bernard Drachman, who was born in New York in 1861. In 1907 he published an edition of Divrei ha-Rivot by R. Zerahiah ha-Levi and R. Abraham ben David, together with his commentary.

Who was the first American-born author to publish a book in Hebrew? This would appear to be Reuven Grossman (1905-1974; he later took the last name Avinoam). Born in Chicago, Grossman spoke Hebrew as his first language. His first book, Mi-Pi Olel (New York, 1915), containing essays, poetry, and the beginnings of a commentary on the Torah, appeared when he was ten years old. As far as I know, this makes him the youngest published Jewish author in history. One of the essays in the book was earlier published in a newspaper when Grossman was only eight years old. (I wonder how much help he had from his father who was a Hebraist.) You can find Mi-Pi Olel here.

The book contains a picture of the young author .

His next book, Ibim (New York, 1918), appeared when Grossman was thirteen years old. You can find it here.

Ibim also includes a picture of Grossman.

You can learn more about Grossman here and here, and in Yosef Goldman, Hebrew Printing in America (Brooklyn, 2006), p. 325.

3. In my last post, I gave a link to my Torah in Motion classes on Saul Lieberman. I also did a 53-part series on the sefer I published, Iggerot Malkhei Rabbanan. You can see it here. My four-part series on the escape of the Mir Yeshiva can be viewed here. My class on Torah study on Christmas eve is here; my class on kitniyot is here; my discussion of the Hazon Ish and R. Zvi Yehuda is here.

4. I can’t end the post without calling attention to an important new publication by Seforim Blog contributor, R. Bezalel Naor. Navigating Worlds is a collection of Naor’s essays that appeared from 2006-2020, including those that appeared on the Seforim Blog. As is to be expected, there are essays on R. Kook, further solidifying Naor’s standing as the leading expositor of R. Kook’s thought in English. There are also essays on a wide range of other topics including Maimonides, Kabbalah, and Hasidism, as well as discussions of passages in the Torah and Talmud, and book reviews.

In addition to the broad themes discussed, Navigating Worlds is full of individual items of historical and bibliographical interest. To mention just one of the many things I learned from the book, on p. 554 Naor cites a report from R. Uri Moinester in the name of R. Joseph Alexander, that R. Hayyim Soloveitchik told the latter that it had taken him two years to study Maimonides’ Guide.[27] This source should be added to what I mentioned in a previous post  here about R. Hayyim’s study of the Guide.[28]

* * * * * *

[1] In reply to a question from Tamir Ratzon, R. Kafih said that one should only eat a product with gelatin if there was no non-gelatin alternative. See Teshuvot ha-Rav Yosef Kafih le-Talmido Tamir Ratzon, ed. Itamar Cohen (Kiryat Ono, 2019) p. 306. This reply is more stringent than R. Kafih’s letter published in this post.
[2] Yad Hanokh, no. 23.
[3] See my Changing the Immutable, pp. 80ff., 95.
[4] See Sefer ha-Zikaron le-Maran Ba’al “Pahad Yitzhak, p. 334.
[5] She’elot u-Teshuvot Maharshag, vol. 1, Yoreh Deah, no. 68. This source and the two prior sources I mentioned, Yad Hanokh and Yad Yehudah, are noted by R. Yaakov Hayyim Sofer, Zikhron Moshe, vol. 3, no. 38.
[6] See R. Hayyim Oberlander’s article in Or Yisrael 56 (Tamuz 5769), pp. 58-59.
[7] See Literaturblatt des Orients, August 12, 1848 (no. 33), p. 525.
[8] Sha’ar ha-Mitzvot, parashat Mishpatim (end).
[9] In this context, where it means “second,” the word תנינא is pronounced tinyana. See Daniel 7:5 where the word appears. In the Talmud, the word appears as תניינא so the pronunciation is obvious. Onkelos, Gen. 1:8, has תנין, and all the editions I checked vocalize it correctly as tinyan. Yet if you google “Orah Hayyim Tanina” or “Yoreh Deah Tanina” you will find lots of examples where the word תנינא is written as “tanina”. Yet this is an error as tanina is a completely different word and means serpent or sea monster.
[10] I heard a shiur from R. Asher Weiss, and in explaining why things became so strict with kitniyot, he quoted R. Shlomo Zalman Auerbach who once gave a heter that the people did not want to accept. R. Auerbach joked that it was a kula she-ein ha-tzibbur yakhol la’amod bah. In speaking about the standards of the Triangle K hashgachah, Timothy D. Lytton quotes one kashrut professional as follows: “It’s permissible under Jewish law, but it’s a standard that many people are not willing to accept.” Kosher: Private Regulation in the Age of Industrial Food (Cambridge, MA, 2013), p. 83. In speaking of how the Jewish masses will not listen to the greatest rabbis if they tell them to stop observing even a small custom, R. Reuven Katz refers to the German expression that the rabbi is a rabbi, but the regular Jew is a chief rabbi (Oberrabbiner, lit. “above the rabbi”). “Der Rabbiner ist ein Rabbiner, aber der Jude ist ein Oberrabbiner.” Dudaei Reuven, vol. 1, p. 32a, and see also R. Katz’s letter published in R. Avraham Yudelevitz, Hiddushei Beit Av (New York-Jerusalem, 2012), pp. 18-19.
[11] “Kitniyot,” Journal of Halacha and Contemporary Society 6 (Fall 1983), p. 71.
[12] See his article in Kerem, Tishrei 5713, pp. 9ff.
[13] In my prior post I published a responsum on gelatin by R. David Telsner. As Menachem pointed out in his comment to the post, this responsum (with some changes at the end) was mistakenly included in R. Gershuni’s Hokhmat Gershon, pp. 405ff., as if it were written by R. Gershuni. As the editor notes in the preface, because of R. Gershuni’s ill health he was not able to review the book before publication, and this explains how the Telsner responsum could end up in the book (a phenomenon we also know from other books of responsa).
[14] “She’elat Yom ha-Atzmaut,” in R. Shimon Federbush, ed., Torah u-Melukhah (Jerusalem, 1961), pp. 180-192.
[15] Kenneth Lasson, Sacred Cows, Holy Wars (Durham, 2017), pp. 135-136. Lasson also writes (p. 113): “The OU requires that at a minimum all of its mashgichim have Orthodox ordination (semicha) from a recognized rabbinic individual or institution and pray only in Orthodox synagogues.” Yet I know of people in out of the way places who have checked on factories for the OU and they are not rabbis.
[16] See Ha-Ivri, Sep. 11, 1896, p. 1; Harold Gastwirt, Fraud, Corruption and Holiness (Port Washington, N.Y., 1974), pp. 82-83. I once had a rebbetzin insist to me that laundry detergent requires a hashgachah as we put tablecloths in the wash.
[17] Ha-Ivri, Oct. 23, 1896, p. 1.
[18] Wein, Teach Them Dilgently (New Milford, CT, 2014), pp. 97-98. R. Wein also mentions that R. Moshe Feinstein sometimes favored the immigrant rabbis who offered private hashgachot—which was an important source of income for them—over the OU’s more “practical and progressive directions in kashrut” (p. 99).

In earlier years, there were Agudas ha-Rabbonim rabbis who criticized the OU’s hashgachah because there were many synagogues in the OU that did not have mehitzot. These rabbis claimed that you cannot trust an organization that allows non-mehitzah shuls to be part of it. In the 1930s the Agudas ha-Rabbonim rejected the kashrut reliability of the OU after it agreed to work with representatives of the Conservative movement in establishing reliable kashrut in America. See Gastwirt, Fraud, Corruption, and Holiness, pp. 166-167. As for Agudas ha-Rabbonim rabbis, there were those who gave hashgachot—this was how they made a living— but they personally did not eat from all the food under their hashgachah. (Growing up there was a rabbi in my town who told my father not to buy from a certain butcher, even though this butcher was under his hashgachah. The rabbi’s attitude was that the butcher was good enough for non-Orthodox Jews, but Orthodox Jews should not shop there, as he was not able to visit the store as much as he would have liked.) R. Nachum Eliezer Rabinovitch, Siah Nahum, p. 171, completely rejects such an approach.

ברור שאם הרב אינו אוכל מן המאכלים שהוא אמור להשגיח עליהםדבר זה יגרום לזלזול וחילול השם חו

[19] See Harold Sharfman, Global Guide to Kosher Foods and Restaurants (Malibu, 1990), p. 68.
[20] For the lawsuit, see here. Another example of the OK involved in controversy was when it put in a bid to control the proposed “dot-kosher” suffix for Web addresses. The OU, Star K, CRC, and KOF-K opposed the OK’s bid, with the OU stating: “We think that if the term kosher, which has important meaning in the Jewish religion, is commercialized, it will do a disservice to how religion in general should be treated and will harm the kosher public specifically.” See here, and Lasson, Sacred Cows, Holy Wars, pp. 146-147.
[21] Kosher USA (New York, 2016), pp. 190-191.
[22] Zilberstein, Avnei Esh, pp. 892-893.
[23] See here for Ari Zivotofsky and Zohar Amar’s attempt to identify this fish.
[24] Kaniel, “Bein Hilonim Mesorati’im ve-Ortodoksim: Shemirat Mitzvot bi-Re’i ha-Hitmodedut im Gezerat ha-Kashrut,” Gal Ed 22 (2010), pp. 75-106.
[25] “Al Milhamah u-Shemirat ha-Mitzvot: Vilna 1914-1922,” Gal Ed 24 (2015), pp. 37-74. Regarding Kashrut in Vilna, Kaniel notes that due to the difficult economic circumstances, there were occasions when the rabbis permitted butchers to sell non-kosher meat to non-Jews, as long as they were careful to keep the kosher meat separate from that which was non-kosher. See ibid., p. 61.
[26] See R. Wasserman’s Morgen Zhurnal interview included in Mi-Pihem shel Rabbotenu (Bnei Brak, 2008), p. 345.
[27] Moinster, Karnei Re’em (New York, 1951), p. 104 n. 1.
[28] Another source that should be added is Shulamith Soloveitchik Meiselman, The Soloveitchik Heritage: A Daughter’s Memoir (Hoboken, 1995), pp. 109-110, where in addition to discussing R. Hayyim’s interest in the Guide, she also mentions that he had R. Moses Soloveitchik promise never to read this work. “Even years later, when his children were attending the university and the book was part of the family library, Father never touched it. Father always kept a promise” (p. 110).




Daniel J. Lasker – “December 6 Is Coming: Get Out the Umbrellas”

December 6 Is Coming: Get Out the Umbrellas
By Daniel J. Lasker

Daniel J. Lasker is Norbert Blechner Professor of Jewish Values at Ben-Gurion University of the Negev, Beer Sheva, and is chair of the Goldstein-Goren Department of Jewish Thought. His landmark work Jewish Philosophical Polemics against Christianity in the Middle Ages, originally published in 1977, was recently republished with a new introduction in 2007.

This is Professor Lasker’s first post at the Seforim blog.

We Jews in Israel have been praying for rain since the seventh of Marheshvan (the night of Thursday, October 18), but, unfortunately, so far the prayers have generally not yet been answered (especially in Beer Sheva where I live). Next week, it will be the chance of Jews who live in the Diaspora to pray for rain, beginning in Maariv of the night of Wednesday, December 5 (the eve of December 6). As undoubtedly all readers of the Seforim blog know, the dates for asking for rain (adding the words ve-ten tal u-matar li-verakha to the ninth blessing of the Shemoneh Esreh, in the Ashkenazi and Nusah Sefarad rites; or changing the form of that blessing from Barkheinu to Bareikh Aleinu, in what is now usually known as the Edot ha-Mizrah rite) are different for the Land of Israel and for the Diaspora. Perhaps not all readers know 1) why there is a difference; 2) why most years one begins the prayer in Maariv of December 4 (the eve of December 5); and 3) why one begins on December 5 this year.

Why is there a difference?

Mishnah Ta’anit 1:3 reads: “On the third of Marheshvan one is to begin praying for rain; Rabban Gamaliel says: ‘On the seventh of that month, fifteen days after the feast of Tabernacles, so that even the tardiest Israelite may reach the Euphrates [on the return journey from the pilgrimage to Jerusalem].’” The Talmud (Ta’anit 10a) records Rabbi Eleazar as stating that the law follows Rabban Gamaliel. Despite the fact that the pilgrimage on Sukkot is no longer binding, and modern methods of transportation obviate the need to wait two weeks for the pilgrims to return home, the practice has remained constant: in the Land of Israel, she’elat geshamim (the prayer for rain) begins on the eve of the seventh of Marheshvan.

The same Talmudic passage records that, in the Golah, the practice was to wait “until the sixtieth [day] of the [autumnal] equinox (ad shishim ba-tequfah)” before beginning the prayer. No explanation is given for this difference between Israel and Babylonia, but there are good reasons to believe that it has to do with the meteorological and agricultural differences between the countries. Jews in Babylonia did not need, nor did they want, the winter rains to begin until two thirds of the autumn season had passed; therefore, they waited longer before beginning the prayer. Both communities, however, began “mentioning” rain (mashiv ha-ruah) on Shemini Atzeret, and they ceased mentioning rain and saying the special prayer for rain at Passover.[1]

What about Jews in other countries? Should Jews in these areas pray for rain according to the needs of their own country of residence, as did Jews in the Land of Israel and in Babylonia, or should they employ an already established schedule? Since Babylonian procedures were usually followed in the whole Diaspora, it became the practice of Jews almost everywhere outside the Land of Israel to offer their prayers for rain on the same dates as did their Babylonian coreligionists.[2]

This generalization did not go unchallenged, and the most noteworthy attempt to alter the practice was made by Rabbeinu Asher ben Yehiel (Rosh, c. 1250-1328). He tried to establish the principle that each Jewish community would pray for rain when they actually needed it in their country; this attempt was rebuffed by his contemporaries. The Rosh’s failure to innovate a change in the practice, no matter how sensible it might have seemed, was a major reason why no one in the northern hemisphere ever again challenged the prevailing practice. Questions did arise, however, when Jews migrated to areas in the southern hemisphere, when the order of the seasons is reversed. Rabbinic opinion has usually held that the Babylonian pattern should be followed even when the local winter occurs during summer in Babylonia and vice versa. The result is that to this day, Jews throughout the Diaspora set their liturgical calendar in this regard according to the agricultural needs of Iraq, a country which is now almost devoid of Jews.[3]

On most years…

But why December 4? The Talmud says “the sixtieth day of the autumnal equinox,” and the autumnal equinox this year fell on September 23, 2007, at 5:51 AM, on the American eastern seaboard, making the sixtieth day on November 21.[4] The answer to this question is to be found in a miscalculation of the length of the year. Present-day astronomers calculate the mean solar year to be 365.2422 days (365 days, 5 hours, 48 minutes and 46 seconds). This is slightly shorter than the 365.25 days (365 days, 6 hours) assumed by Samuel, the third century amora and astronomer, who gave the rules for calculating the equinoxes and solstices (Eruvin 56a). This is the same assumption which is at the basis of the Julian calendar as well.

The discrepancy between the assumed length of the year and actual length may not seem like much; it is only .0078 days (11 minutes, 14 seconds) a year. Yet, over a period of a thousand years, a difference of 7.8 days (1000 x .0078) exists between a system based on assumed length (the Julian calendar or Samuel’s tequfot) and one based on actual length. It is this difference which led the Catholic Church under Pope Gregory XIII to correct the Julian calendar by dropping 10 days in 1582 (the day after Thursday, October 4 became Friday, October 15), thus creating the Gregorian calendar. To prevent further problems, three leap years were eliminated every 400 years, so that only century years divisible by 400 were leap years. This system, which eventually caught on in the whole world, is not perfect, since in 3300 years another one day discrepancy accumulates.

In Samuel’s calculation, however, there are exactly 365 ¼ days in a year, and each tequfah (solstice or equinox) lasts exactly 91 days and 7 ½ hours (despite the disparate lengths of the various seasons). One autumnal equinox (tequfat tishrei) falls exactly 365 ¼ days after the previous one. Samuel’s calculation has kept in step with the Julian calendar throughout the centuries, and, therefore, just as in Samuel’s time tequfat tishrei fell on the Julian September 24, so, too, today it invariably falls on that date. In this century, however, the Julian September 24 is the Gregorian October 7. The sixtieth day after October 7 is December 5, and one generally begins saying tal u-matar in the Maariv before December 5, namely on December 4.

… but this year.

So why is this year different from all other years, or at least the last three years? This is a function of the exact hour when the equinox falls. Although it is always on October 7, in a four year cycle the tequfah will come at 03:00, 09:00, 15:00 and 21:00 (check your synagogue luah for the times). The fourth year is always a Hebrew year divisible by four (5768), or the year before a civil leap year (2008); in that year, tequfat tishrei is after dark (21:00) and, therefore, it is considered the next day (October 8). Fifty-nine days later is December 6 and tal u-matar begins in Maariv of December 5. Since the coming civil year adds an additional day, next year’s calculated autumnal equinox will again fall on October 7 at 03:00, and tal u-matar will again begin in Maariv of December 4. In the nineteenth century, the prayer for rain began in Maariv of December 3 or 4; since 1900 was not a leap year, it jumped to December 4 or 5 in the twentieth century. 2100 will also not be a leap year, and in the twenty-second century, tal u-matar will begin in Maariv of December 5 or 6. Given enough time, and no calendrical reform, eventually Jews outside Israel will start praying for rain only on the eve of Passover, just in time to stop this prayer when Passover begins.[5]

A few observations can be added to this description of the beginning time of the prayer for rain in the Diaspora. First, the same miscalculation which causes the “sixtieth day of the autumnal equinox” to move forward vis-à-vis the sun is at the base of another Jewish ritual, the once in 28 years “Blessing of the Sun” (Birkat ha-Hammah), scheduled to occur again in one year and five months on Wednesday, April 8, 2009 (coincidentally, fourteenth of Nisan, the eve of Passover; the last time was on Wednesday, April 8, 1981). In the nineteenth century, the Blessing of the Sun occurred on Wednesday, April 7, every 28 years; in the twenty-second century it will be on Wednesday, April 9, every 28 years. Despite the fact that the Blessing commemorates the cyclical repetition of the first vernal equinox at creation, it now falls 18 days after the actual astronomical equinox.

Furthermore, it is clear from the sources that each Jewish community is actually praying for rain for its own needs, and not for rain in the Land of Israel. Nevertheless, many Jews, even relatively knowledgeable ones, think that adding tal u-matar to the prayers on December 5 marks the beginning of the rainy season in Israel, not realizing that she’elat geshamim had already begun in Israel on the seventh of Marheshvan. Perhaps one of the sources of this widespread misconception is the fact that the astronomical sixtieth day of the equinox has meaning only for Iraq, if even there, and the calculated sixtieth day has no meaning anywhere. Thus, when Jews in the Diaspora start praying for rain on December 4, they mistakenly think that they are doing so for the residents of the Land of Israel.

Perhaps their prayers are still valuable. From my experience, often November is a dry month in Israel, and the winds pick up and the rain starts falling only in the first week of December. The sages tell us that the reason Israel has distinct wet and dry seasons and is so dependent upon rainfall (as compared to Egypt; cf. Deut. 11:10-12) is that God delights in hearing the prayers of the righteous who turn to Him in supplication for rain. Perhaps, the beginning of serious rain in the Land of Israel at the beginning of December, just as the prayer for rain starts in the Diaspora, is a sign that God actually delights in the prayers of the ignoramuses, who believe that their supplications for rain at that time are directed for the good of the Jews in the Land of Israel, not realizing that their prayers should be intended to bring rain to their own countries of residence. Whatever the case, we wish along with the High Priest on Yom Kippur that this year in Israel will, indeed, be very wet and not too cold, and that the rain will be only for a blessing!

Notes:
[1] For a discussion of the Babylonian custom, and the reasons behind it, see Arnold A. Lasker and Daniel J. Lasker, “The Jewish Prayer for Rain in Babylonia,” Journal for the Study of Judaism in the Persian, Hellenistic and Roman Period 15 (1984): 124-144.
[2] In the words of the commentary attributed to Rashi on Ta’anit 10a: “Thus we act since all our customs follow the Babylonians (kol minhageinu ahar benei bavel).”
[3] For a fuller description of the long process described in these few sentences, see Arnold A. Lasker and Daniel J. Lasker, “The Jewish Prayer for Rain in the Post-Talmudic Diaspora,” AJS Review 9:2 (Fall 1984): 141-174.
[4] The equinoxes and solstices fall at the same instant all around the world, so in Israel, the autumnal equinox was at 12:51 PM; in Hawaii, at 12:51 AM; all times are daylight savings times.
[5] Details can be found in Arnold A. Lasker and Daniel J. Lasker, “The Strange Case of December 4: A Liturgical Problem,” Conservative Judaism 38:1 (Fall 1985): 91-99.




ועשו להם ציצת – What to Make of Tzitzit

ועשו להם ציצת – What to Make of Tzitzit

By Joseph Wertzberger [1]

ויאמר ה׳ אל משה
דבר אל־בני ישראל ואמרת אלהם ועשו להם ציצת על־כנפי בגדיהם לדרתם ונתנו על ציצת הכנף פתיל תכלת
והיה לכם לציצת וראיתם אתו וזכרתם את כל מצות ה׳ ועשיתם אתם, ולא תתורו אחרי לבבכם ואחרי עיניכם אשר אתם זנים אחריהם
למען תזכרו ועשיתם את כל מצותי והייתם קדשים לאלקיכם
אני ה׳ אלקיכם אשר הוצאתי אתכם מארץ מצרים להיות לכם לאלקים, אני ה׳ אלקיכם
במדבר ט׳׳ו,
ל׳׳ז – מ׳׳א

And HaShem said to Moshe as follows.
Speak to the people of Israel and tell them they should make themselves fringes on the ends of their garments, for generations, and place on the end-fringes a techelet-thread.
And they shall serve you as glance-objects – when you see them you’ll recall all HaShem’s orders and do them, and you won’t follow your hearts’ and eyes’ explorations, after which you tend to stray.
So that you recall and perform all my orders, and are ordained to your god.
I am HaShem, your god, that took you out of the land of Egypt to be your god, I am HaShem your god.

Numbers 15, 37-41

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Archeologists recently published[2] new findings regarding the history of Tel Shiqmona, a site near present-day Haifa that was a large-scale production facility for techelet and argaman,[3] the deep blue and purple dyes used in ancient Israel and throughout the Near East during the First-Temple period and later.

Understanding techelet and its role in the ancient world can help us better appreciate how it, together with tzitzit, may have been viewed in early First-Temple Israel, and to more clearly recognize some of the ideas presented in its parsha and in related parshiot in the Torah.

Techelet was produced from the glandular excretions of the Murex trunculus sea-snail using an elaborate production method, and was the most valuable dye in the ancient Near-Eastern world — by some sources it took two-hundred and fifty thousand shells to produce one ounce of dye, which was then worth, by weight, three times the value of gold.[4] Due to its prized status and high cost, it was used in priestly vestments and royal garments[5] across the ancient Near East, including in Israel’s temple vestments.[6]

Techelet’s role in tzitzit can be understood as a signifier that, in contrast to other ancient Near-Eastern religions, in which the priestly class served as intermediaries between the people and their gods,[7] in ancient Judaism the entirety of the Jewish people and all of its members were conceived as a semi-priestly class, with each individual given direct access and communion to God, and all people required to serve him,[8] with sexual, dietary[9] and clothing rules applicable to each of them and signifying their special status.

Like the Israelite priesthood itself, which utilized techelet extensively in its raiment, and also perhaps in similitude to royal garments, individual Jews wore an article of clothing that included a small amount of techelet as a miniature priestly or royal vestment, reminding the wearer that they belong to a class of people vested with particular rules, and requiring maintenance of a higher order of behavior.[10][11][12]

Tzitzit and techelet are not simply objects randomly chosen to serve as reminders to keep the mitzvot. Rather, they signify the wearer’s membership in an elevated class of people to whom the mitzvot apply as part of class membership.

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The root-word ציץ refers to a bud or a blossom,[13] to fringes or tassels,[14] and to the act of peeking,[15][16][17][18] and in its variants can be used in both noun and verb format.[19]

Understanding this reveals the beautiful and poetic wordplay-based meaning of parshat tzitzit, which juxtaposes two conceptions of the root-word ציץ playing off each other to provide the fuller meaning of the word ציצת, and the message of the passage and of the מצוה itself.

In the word’s initial appearance in verse 38, the Jews are told to make ציצת, bud-like thread-fringes, at the ends of their garments. In the next verse, the meaning of the word based on its sentence-context changes to the noun version of the work peek – an object to peek at.[20] The tzitzit together with their techelet are symbols of Israel’s special relationship with God, and thus serve as reminder-objects to regularly look at — “They shall be for you glance-objects,[21] for when you see them, you’ll recall the commandments…”.[22][23]

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All of which adds color to our understanding of the story of Korach and his arguments against Moshe and Aharon.

The reason the incident of Korach is placed directly after the chapter of tzitzit in the Torah is because Korach’s arguments flow directly from the ideas presented in that chapter. The foundational concept in the parsha of tzitzit is that all Jews are a royal and priestly class, all are קדשים לאלקיכם – sacred and dedicated to God; that God took the Jewish people out of Egypt, להיות לכם לאלקים, to be directly a God of all of the Jewish people – אני ה׳ אלקיכם. Comes Korach and argues, if all Jews are uniquely members of a royal and priestly class in direct communion with God, then why are separate priestly and ruling classes needed to lord over them and to mediate between them and the divine. Korach notes, כי כל העדה כלם קדשים )based on והייתם קדשים לאלקיכם); ובתוכם ה׳ )paralleling אני ה׳ אלקיכם אשר הוצאתי אתכם מארץ מצרים להיות לכם לאלקים, אני ה׳ אלקיכם) and therefore ומדוע תתנשאו על קהל ה׳. The words in Parshat Korach, and Korach’s message, directly address the words and the message in the chapter preceding it.

Many readers are now surely recalling the well-known midrash, a version of which appears in Rashi on the first verse in Parshat Korach, according to which Korach used tzitzit and techelet as a metaphor in his arguments against Moshe and the priesthood’s rule over Israel, contending that an article of clothing made entirely of techelet should not require tzitzit.[24] The meaning of the midrash is made clearer through our understanding of the parshiot. The crux of Korach’s argument is based on techelet’s inclusion in tzitzit as a symbol of priesthood and royalty, signifying the elements of priesthood and royalty carried by all Jews. The midrash elucidates this, and highlights the Korach story’s placement immediately after tzitzit, by elaborating on Korach’s arguments and their premises in the ideas behind techelet. Like a royal garment all of techelet should not need another strand of techelet to make it royal, the Jewish people, who are all part of a royal class, as signified by their own techelet, should not need another royal class to lord over them. Since all Jews have priestly status and are connected to God, what sense is there in adding another priestly appendage? Like a royal or priestly garment does not need an additional purple thread to signify and manifest its meaning, a nation that is itself entirely royal and priestly, should not need other superior and ministerial classes added to it.[25]

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To round out the discussion, let’s take a look at another midrash that discusses tzitzit and touches on many of the ideas and themes mentioned above.

ועשו להם ציצת על כנפי בגדיהם. זה שאמר הכתוב אור זרע לצדיק ולישרי לב שמחה (תהלים צ׳׳ז – י׳׳א), ה’ חפץ למען צדקו (ישעיה מ׳׳ב – כ׳׳א). זרע להם הקדוש ברוך הוא את התורה ואת המצות לישראל, כדי להנחילם חיי העולם הבא, ולא הניח דבר בעולם שלא נתן בו מצוה לישראל. יצא לחרש, לא תחרש בשור ובחמור, לזרע, לא תזרע כרמך כלאים, לקצר, כי תקצר קצירך בשדה… נתכסה בטלית, ועשו להם ציצת

תנחומא, שלח, סי׳ ט׳׳ו; רבה, במדבר, סי׳ י׳׳ז

“And they should make themselves tzitzit”: Regarding this it is written, “A light shines for the righteous, and there is joy for the straight-hearted” (Tehillim 97-11), “God desired the sake of his righteousness” (Yeshaya 42-21). God sowed Torah and mitzvot for Israel, in order that they inherit eternal life, and he did not leave a thing in the world regarding which he didn’t give a commandment to Israel. A person goes out to plow, “Don’t plow with an ox and donkey”; to sow, “Do not sow your vineyard mixed varieties”; to harvest, “When you harvest in the field”… [the midrash then mentions many other mitzvot that apply to various tasks, and ends with] he covers himself with a cloak, “they should make themselves tzitzit”.

Tanchuma Shelach 15; Rabbah Bamidbar 17.

To better understand the midrash and the significance of its two introductory verses, one needs to see the fuller context of those verses.[26]

אור זרע לצדיק ולישרי⁠ לב שמחה. שמחו צדיקים בה׳ והודו לזכר קדשו. תהלים צ׳׳ז, י׳׳א – י׳׳ב

A light is implanted for the righteous, and there is joy for the straight-hearted. Righteous, rejoice in God, and praise the recollection of his sacredness. Tehillim 97, 11-12.

החרשים שמעו והעורים הביטו לראות. מי עור כי אם⁠ עבדי וחרש כמלאכי אשלח, מי עור כמשלם ועור כעבד ה׳. ראות רבות ולא תשמר פקוח אזנים ולא ישמע. ה׳ חפץ למען צדקו יגדיל תורה ויאדיר. ישעיה מ׳׳ב, י׳׳ח – כ׳׳א

Deaf ones, listen, and blind ones, look and see. Who is blind, but only my servant, who as deaf as the messenger I send; who as blind as the wholesome, as blind as the servant of God. Seeing much and paying no heed, open-eared and hearing not. God desires the sake of his righteousness, let the directives be great, and more mighty. Isaiah 42, 18-21.

We can recognize numerous allusions and references to tzitzit, which help us understand the midrash’s message.

אור זרוע לצדיק – Mitzvot, of course, are Ohr Zarua because they are a light that guides our path, and were implanted into the activities of the world; but tzitzit, representing all of the mitzvot, are particularly so – titzit’s root-word includes an allusion to shining light, and to planted blossoms, and it protects the person from sinning, assisting to make him righteous.

ולישרי לב שמחה — In reminding the person of the mitzvot, the tzitzit assist to keep the person’s heart straight, protecting it from straying. (ולא תתורו אחרי לבבכם ואחרי עיניכם אשר אתם זנים אחריהם)

שמחו צדיקים בה׳ והודו לזכר קדשו – That righteous person who thereby kept the mitzvot should praise and be grateful for the tzitzit, the reminders of sacredness – למען תזכרו ועשיתם את כל מצותי והייתם קדשים לאלקיכם.

Now on to the verses in Yeshaya…

והעורים הביטו לראות. מי עור כי אם⁠ עבדי… מי עור כמשלם ועור כעבד ה׳. ראות רבות ולא תשמר… – The midrash exposits these verses as a reference to the person who looks at and sees his tzitzit but whose eyes are at the same time blind to other temptations. As commanded in the verse in Bamidbar, he looks at his tzitzit, recalls and performs all of the mitzvot, is a servant of God, stays wholesome, and becomes righteous, while blind and paying no heed to the things that would otherwise lead him astray (והיה לכם לציצת וראיתם אתו וזכרתם את כל מצות ה׳ ועשיתם אתם, ולא תתורו אחרי… עיניכם אשר אתם זנים אחריהם.).

ה׳ חפץ למען צדקו יגדיל תורה ויאדיר – God desires the sake of righteousness,[27] and therefore he made the Torah and its commandments greater by making them more numerous and all-encompassing, so that they serve to protect us against sinning and keep us righteous.[28] And the tzitzit are what serve to remind us to keep all of those commandments – [29]למען תזכרו ועשיתם את כל מצותי.

Looking back now at the verses in the chapter on tzitzit, one notices how many of its words and ideas are presented and cross-referenced in the two passages in Tehillim and Yeshaya as exposited by the midrash: the meaning of the word Tzitzit as a blossom, and as a shining light, tzitzit assisting their wearer and seer to remain righteous, to recall all of the very many mitzvot, to serve God and keep them, to remain wholesome and righteous, not to stray after one’s heart, and not to stray after one’s eyes.

והיה לכם לציצת וראיתם אתו וזכרתם את כל מצות ה׳ ועשיתם אתם, ולא תתורו אחרי לבבכם ואחרי עיניכם אשר אתם זנים אחריהם. למען תזכרו ועשיתם את כל מצותי והייתם קדשים לאלקיכם

Almost everything in these two verses on tzitzit is cross-referenced somewhere in the passages mentioned in the midrash.

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Having said all of this one cannot help but end with the well-known Mishna that closes Tractate Makot:

רבי חנניה בן עקשיא אומר רצה הקב”ה לזכות את ישראל לפיכך הרבה להם תורה ומצות שנאמר ה’ חפץ למען צדקו יגדיל תורה ויאדיר. מכות ג׳ – ט׳׳ז

In light of the midrash just discussed, we recognize that the word לזכות as used in the Mishna means to purify (rather than to provide merit, the more common contemporary translation of the word as used in the passage). The numerous mitzvot serve to keep those who perform them pure, to help stay them from sin, and to maintain their righteousness.[30]

This also helps explain the Mishna’s placement at the end of the last chapter of Makot, which is comprised of lengthy lists of sins and descriptions of their punishments. In light of that, and also so as not to close the tractate with all of that negative material, the Mishna quotes this teaching regarding how mitzvot’s abundance serves to protect us from the many sins, and leads us in their stead to good.

[1] The author is the creator of the YouTube channel, Understanding Kohelet.
[2] Shalvi G., Sukenik N., Waiman-Barak P., Dunseth Z.C., Bar S., Pinsky S., et al. (2025), Tel Shiqmona during the Iron Age: A first glimpse into an ancient Mediterranean purple dye ‘factory’, PLoS ONE 20(4): e0321082 (https://doi.org/10.1371/journal.pone.0321082); Shalvi, G., & Gilboa, A. (2023). Between Israel and Phoenicia: The Iron IIA–B Fortified Purple-dye Production Centre at Tel Shiqmona, Tel Aviv, 50(1), 75–110 (https://doi.org/10.1080/03344355.2023.2190283).

See also, Mihailo S. Zekic, The Secrets of Tel Shikmona, Let the Stones Speak Magazine, July – August 2023, (https://armstronginstitute.org/933-the-secrets-of-tel-shikmona); Lidz, Franz, In Israel, a 3,000-Year-Old Purple Factory, NYTimes, March 5, 2024, (https://www.nytimes.com/2024/03/05/science/archaeology-tyrian-purple-murex.html); Margolis, Andrea, Archeologists Uncover Ancient “Factory” Used to Produce Coveted Purple Dye Mentioned in Bible, Fox News Online, May 10, 2025 (https://www.foxnews.com/travel/archaeologists-uncover-ancient-factory-used-produce-coveted-purple-dye-mentioned-bible).
[3] Argaman is also known as Tyrian purple.
[4] Zaria Gorvett, Tyrian Purple: The lost ancient pigment that was more valuable than gold, BBC Online, November 24, 2023 (https://www.bbc.com/future/article/20231122-tyrian-purple-the-lost-ancient-pigment-that-was-more-valuable-than-gold#).
[5] E.g., Esther 8-15.
[6] E.g., Shemot, Chapter 28.
[7] See, for example, Ada Taggar-Cohen, Priests and priestesses, ancient near east (June 30, 2015), in The Encyclopedia of Ancient History (https://onlinelibrary.wiley.com/doi/10.1002/9781444338386.wbeah25085).
[8] ואתם תהיו לי ממלכת כהנים וגוי קדוש. שמות י׳׳ט ו׳

And you will be dedicated to me, a nation of priests, and a consecrated people. Shemot 19-6.
[9]  רמב׳׳ם, משנה תורה, סדר קדושה.
[10] This is alluded to in וראיתם אתו… ועשיתם את כל מצותי והייתם קדשים לאלקיכם, which expresses tzitzit’s role as a representative sign of the Jewish nation’s sacredness as a people dedicated to God and ordained to serve him.
[11] It may also be that fringes at the ends of garments themselves also signified royalty or the priestly class. See Stephen Bertman, Tasseled Garments in the Ancient Near East Mediterranean, The Biblical Archeologist, Vol. 24, No. 4 (Dec., 1961); Jacob Milgrom, Hems and Tassels, Biblical Archology Review, Volume IX, No. 3 (May/June 1983). Turning the weft that remained at either end of a garment into ornamental tassels would have been a way of indicating the significance of the wearer, contrasting with ordinary garments which would have had the ends of their wefts sewn into a straight hem, to make the clothing more utilitarian and also more durable. See also, Kelly Olson, Fringed Clothing in Roman iconography and written sources, Chapter 11 in Textiles in Ancient Mediterranean Iconography (Oxbow Books, 2022), and Ancient Fashion: Fringed Clothing in Roman Iconography and Written Sources, at https://brewminate.com/ancient-fashion-fringed-clothing-in-roman-iconography-and-written-sources.
[12] Another area where a parallel exists between the service of Israel’s priestly class and that of the ordinary Jewish “semi-priesthood”, is the prohibition on leaven in the Temple (Shemot, 34-25, and elsewhere), which applies to all of the Jewish people during their Pesach sacrifice and subsequent holiday.
[13] והיתה ציצת נובל צבי תפארתו, אשר על ראש גיא שמנים כבכורה בטרם קיץ, אשר יראה הראה אותה, בעודה בכפו יבלענה. ישעיה כ’’ח ד׳

הבאים ישרש יעקב, יציץ ופרח ישראל, ומלאו פני תבל תנובה. ישעיה כ’’ז ו׳
[14]  וישלח תבנית יד ויקחנו בציצת ראשי. יחזקאל ח׳ ג׳
[15] דומה דודי לצבי או לעפר האילים, הנה זה עומד אחר כתלנו, משגיח מן החלנות מציץ מן החרכים. שה’’ש ב׳ ט׳
[16] Consider also the interesting example of, .בפרח רשעים כמו עשב ויציצו כל פעלי און… ותבט עיני בשורי
[17] Of course the word ציץ‘s meanings of blossom and peek are related, since blossoms are the first peeks of a plant’s flower and color.

It’s interesting to note that just like the English word peek is used to refer both to the thing that is just barely seen peeking out of a crack, and to the person that is peeking and just barely sees something, the Hebrew word מציץ can have a similar dual use, as seen in the poetic utilization of the word מציץin the verse in Shir HaShirim referred to in note 15, where the lover peeking through the cracks in the verse can be understood as the lover looking at his beloved through the cracks (see, for example, Rashi, Rashbam and ibn Ezra), but also as the countenance of the lover just barely appearing to his beloved through the cracks (R’ Yosef Kimchi, Metzudat David and Ho’il Moshe, as well as Rashbam in Shemot 28-36) — the woman gets a glimpse of her lover, who then disappears, and later in verse 14 she beseeches him to appear again.

See also Me’or Eineyim, Bereshit and Pinchas, in the name of the Ba’al Shem Tov, that the concept of מציץ מן החרכים alludes to a person’s tendency to want to do the right thing due to the perception that people are watching and paying attention to them, and that this is in fact a manifestation of what in reality is the person’s desire to do the right thing due to their perception of God observing them. We feel and respond to our perception of human observation, but we are really perceiving God’s essence, so to speak, observing us; manifesting through our perception of humans’ perception – God is, so to speak, מציץ מן החרכים.

Here too, the Baal Shem Tov’s interpretation of the passage as reflected through this teaching can be understood as reading the word מציץ in the verse both as God observing us and watching us through the people that surround us, as well as God appearing to us through our sense of people’s observation.

The teaching contains a similar idea to the Baal Shem Tov’s well-known teaching regarding ה׳ צלך, that not only is God a shadow over the human, protecting them, but also a shadow of the human, appearing to the human as the human understands God; and is also typical of many of the Baal Shem Tov’s teachings in that it contains several layers of meaning that are related to one another and nest inside each other.
[18] With regard to the ציץ of the High Priest, there are various interpretations regarding the source of the word, for example ibn Ezra interprets it as similar to ויקחנו בציצת ראשי (see note 14), while Rashbam says it was called ציץ because it was seen, similarly to מציץ מן החרכים. It’s also possible that the source of the word was due to the shine glancing off of the ציץ, and how it added aura to the appearance of the High Priest, and made it ‘pop’, similarly to ועליו יציץ נזרו in Tehillim 132-18 (see also Chizkuni with a similar explanation). Again, of course all of these meanings are related, and it’s quite possible that the source of the word יציץ’s usage as shine and glance is itself based on light’s bursting forth from the shining object. In a similar light, R.S.R. Hirsch explains that the root word ציץ signifies something that protrudes and pops out of a surface, and that this is the source of the word’s usage for blossoms, fringes, peeking, as well as for the High Priest’s ציץ. See also Sifri, Bamidbar, 15-32, אין ציצת אלא דבר היוצא, ודבר כל שהוא, which supports to R.S.R. Hirsch’s interpretation. See also Divrei Yirmiyahu on Rambam, Mishnah Torah, Tzitzit, 1-1.

Speaking of which, it interesting to note that the ציץ, just like ציצת, incorporated a פתיל תכלת.
[19] אנושׁ כחציר ימיו, כציץ השדה כן יציץ. תהלים ק׳׳ג ט׳׳ו
[20] Rashbam and Ri Bechor Shor also note this change in the word’s meaning between verses 37 and 38. Interestingly, Rashi notes both fringes and looking as possible meanings of the word in verse 37, seemingly not taking the view that the word has different meanings in the two sentences.

The interpolation of the instruction to put techelet on the fringes coming between the two mentions of the word tzitzit, meshes well with reading a change in the word’s meaning between its two appearances, because it’s the techelet that makes the tzitzit a symbol of the Jews’ elevated status, thereby turning it in it into a handy reminder of its associated status’ accompanying behavioral requirements. ונתנו על ציצת הכנף פתיל תכלת –> והיה לכם לציצת In this reading these are not two unrelated phrases in sequence, but are in fact intended to be meaningfully read together, one related to the other.
[21] Unfortunately there is no English-language word equivalent to this concept, so I coined the word glance-object, or alternatively, look-object, somewhat similar to the word looking-glass.
[22] See also Tanchuma Bamidbar 15, Rabah Bamidbar 17-5 – והיה לכם לציצית, שתהא נראית… וראיתם אותו, פרט לכסות לילה. The word tzitzit itself already includes in its meaning the concept of being seen, even without the addition of וראיתם אותו.

Interestingly, this interpretation is first provided by the midrash in verse 38, and not in verse 37, while the Sifri’s exposition of the word tzitzit as signifying anything that protrudes, mentioned in note 18 above (and which seemingly contradicts the continuation of the midrash here in Tanchuma that provides a minimum length for tzitzit based on the requirement for it to be seen), is provided in verse 37. This seems to lend support to the idea that the meaning of the word changes between the two sentences.

Reading the first two uses of the word as fringes, and the third as referring to a larger mitzva of tzitzit with a broader meaning that encompasses both the fringe element and the techelet element works very well with the Rambam’s reading of tzitzit as two elements of one larger mitzva. Rambam, Mishnah Torah, Tzitzit, Chapter 1, Sections 1-5. Furthermore, with this perspective in mind we can also posit that the fringe element of the mitzva does not require a particular length, in accordance with the Tanchuma, while the combined fringe-techelet full mitzva of tzitzit requires a particular length, in accordance with the Sifri, since it is predicated on being seen. And in fact we must reconcile the Tanchuma and Sifri’s two readings halachically, and cannot read them as conflicting opinions, since the Sifri cites the elders of Bet Shamai and Bet Hillel as concurring on the point that tzitzit can be of any length as long as they protrude, while the Tanchuma cites a disagreement between Bet Hillel and Bet Shamai regarding different required lengths for tzitzit based on the requirement for them to be seen. In consonance with the Rambam’s reading and the explanation provided here, the two readings do not in fact contradict each other, neither halachically nor as a literary reading of the text, both of which support each other.

Incidentally, this is a case where one can follow the thread of halachic development very well. The Torah itself simply states in straightforward terms that one should create fringes at the ends of garments, and place techelet on the fringes, to have it be seen and serve as a reminder of the mitzvot. Chazal then flesh out the parameters more precisely based on the passages’ words and contextualized meanings — explaining tzitzit’s baseline concept as a simple protrusion, while noting that fulfillment of the fuller concept and its service as a seeable reminder requires a minimum that can be seen. The Rambam then forms the mitzva into a categorical set of parameterized components and rules tracking the requirements and concepts set out by Chazal. At each stage the mitzva and its details are presented using the language and conceptualization familiar to the Torah and expositors of the particular period, while expressing the same underlying ideas.
[23] Another interesting bit of wordplay in the passage is the juxtaposition of the words tzitzit and mitzvot. Both are somewhat similarly-sounding, and indeed, the tzitzit stand in as a reminder of the mitzvot.

I recall noticing as a child in shul, that when we got to the end of Keriyat Shema, you’d suddenly hear a lot of tz’s, s’s and z’s in the room, which had an interesting sound and ring to it. I used to think it was just a kind of funny random thing a child notices, but it turns out that the particularly perfusive profusion of sound in the passage is not an accident but in fact a feature of the passage’s poetry and wordplay (not dissimilar, for example, to the line צבאות צאנך יצלצלו בקול in Hakalir’s אדירי איומה, recited by Ashkenazim during shacharit on the first day of Rosh Hashana, or the line אלו ואלו בצפצוף מצפצפים in the similarly styled כל שנאני שחק, recited in the same place in the service on the second day).

And if we want to stretch the exercise further we might even say that the ז׳ in זכרתם also serves as a poetic counterpoint to the ז׳ in זנים – the tzitzit pull one back to the mitzvot, acting as a reminder to keep the mitzvot and not wander after the temptations pulling one away.
[24] The midrash is as follows, “’And Korach took…’ What is written prior to this matter, “Speak to the children of Israel and tell them to make themselves tzitzit”. Korach jumped on this point and said to Moshe, “does a garment all of techelet require tzitzit?” Moshe said to him it requires tzitzit. Said Korach, “a garment all of techelet does not exempt itself, and four threads exempt it?” Tanchuma Korach, Siman 2. Another story with a slightly different spin on how Korach arranged talitot and tzitzit to illustrate the ideas behind his argument is presented several lines later in the same midrash.

Note that the midrash also seems to be explicating the phrase “Vayikach Korach”, which is anomalous in that there is no object connected to the subject and verb. The Midrash explains that Korach “took” the chapter and the ideas that immediately precede the word “vayikach”. See also Tanchuma at the start of Siman 3, which states “ויקח קרח – לקח טליתו”, which seems to be phrasing the idea in a similar way, explicating the word “vayikach”.
[25] This is a good example of how classic midrash analyzes and identifies the literary references, and the larger ideas, meanings and messages, that underlie the Torah’s words, phrases and narratives, and their relationships and connections; and explicates and illustrates them using memorable story-form, metaphor and allegory.
[26] This is often the case with midrash. Our written versions of a particular midrashic teaching may quote only a brief snippet of the relevant verse being analyzed, while the full breadth and point of the midrash’s teaching become evident only in the light of, and often apply to, a much fuller extent of the quoted verse(s).
[27] The word צדקו in this verse also serves as a cross-reference to the word צדיק in the Tehillim verses.
[28] An additional connotation of the teaching is that the greater the Torah is (יגדיל), and the more commandments and rules it has, the mightier it is, and the more effect it has (יאדיר).
[29] The verse ה׳ חפץ למען צדקו as exposited in this midrash can also be read as a reference to the verse regarding tzitzit in Devarim 22-12, where tzitzit are called גדלים. ה׳ חפץ למען צדקו יגדיל תורה ויאדיר – in order to increase His desired righteousness, God represented the Torah and mitzvot in the gedilim, so that their wearers may perform the many mitzvot in the Torah and become great. And in fact the verseגדלים תעשה לך על ארבע כנפות כסותך in Devarim 22 – 12 comes directly after several of the other verses quoted in this midrash regarding the many and various mitzvot – the four verses directly preceding גדלים תעשה לך are all directly quoted in the midrash.
[30] This Mishna’s teaching reflects very well Chazal’s own project of building and enlarging Torah shebe’al peh as a means of clarifying, sharpening and expanding the contours of mitzvot and of the Torah, so that they serve as a stronger spiritual lattice and framework for the Jewish people, particularly after the loss of the Temple and its symbolic and ritualistic role as an identifying marker and base for Israel and for its connection to God, and following the exilic loss of the Jewish people’s identity tied to a land and a governing nation. מיום שחרב ביהמ”ק אין לו להקב”ה אלא ד’ אמות של הלכה בלבד (ברכות ח.) – the laws and rules of halacha act as a framework on which the Jewish people’s relationship with God establishes itself and is based upon, thereby serving as a space for God in this world, so to speak, in place of the Bet Hamikdash which had previously served this role.




וְהָאֱמֶת וְהַשָּׁלוֹם אֱהָבוּ; On Changing the Immutable by Marc B. Shapiro

וְהָאֱמֶת וְהַשָּׁלוֹם אֱהָבוּ; On Changing the Immutable by Marc B. Shapiro
By Yitzchok Stroh
Professor Marc Shapiro’s latest work, Changing the Immutable, contains considerable interesting and pertinent information for the student of Jewish history. As stated on the cover, the author attempts to reveal how the (Jewish) orthodox ‘establishment’ silences both past and present dissenting voices through “Orthodox Judaism Rewriting Its History.” I don’t intend this to be a review of the entire work (that would take a lot more time and space), however I did want to share some of my frustration here, because I sense that the author’s bias affected his objectivity, and I am afraid that many a reader will be left with an impression that in many ways does not reflect the reality of this complex topic. In this article, I would like to examine one passage of Shapiro’s work to illustrate this point. In chapter eight, entitled, “Is the truth really that important?” Shapiro writes:
Because my purpose in this chapter is to chart the outer limits of what has been viewed as acceptable when it comes to falsehood and deception. I will be focusing on the more ‘liberal’ positions. My aim is to show just how far some rabbinic decisors were willing to go in sanctioning deviations from the truth. One must bear in mind, however, that there are often views in opposition to the ones I shall be examining. Perhaps this knowledge can serve as a counterweight to the shock that many readers will experience upon learning of some of the positions I will mention.
One ‘liberal’ position was expressed by R. Moses Isserles, who went so far as to say that one can even slander someone for the sake of preserving the community. The particular case he was discussing concerned a terrible community dispute that had created the possibility that the Jewish population would be expelled from the city. In what many will find a problematic decision, Isserles offered the opinion, which was then put into action, that it was acceptable to provide false information about an individual whom the government suspected of wrongdoing, if this would alleviate the situation. Although the Talmud states, with regard to giving a man up for execution in response to a demand made by non-Jews, that this is not the way of the pious, Isserles defended his approach: “Even if we did not act in accord with the way of the pious, nevertheless, we acted in accord with the law. I have proven that it is permitted to speak leshon hara [slander] in order to preserve peace.”[1]
Here, Shapiro portrays the רמ”א, the primary codifier of halacha for Ashkenazic Jewry, to have ruled that for the sake of preserving the peace, it is acceptable to provide false information to non-Jewish authorities about a presumably innocent individual whom the government suspected of wrongdoing.
Shocking indeed.
Unfortunately, Shapiro fails to present the תשובה of the רמ”א thoroughly and accurately, and as a result, the reader is left with an erroneous understanding of the opinion of the רמ”א. Furthermore, Shapiro fails to present the relevant section of Talmud precisely, which may lead to further misunderstanding. I am not accusing Professor Shapiro of intentional distortion, but חז”ל do teach us הוי זהיר בתלמוד ששגגת תלמוד עולה זדון — so, with this in mind, I would like to offer a more careful presentation of the Rema’s position as a counterweight for those who’ve read this (inaccurately presented) ‘shocking’ position of the רמ”א.
סימן י”א in  שו”ת הרמ”א is written in complicated rabbinic style, and does not provide a full account of what transpired — but, as the רמ”א writes in the introduction to the תשובה, we should be able to extract sufficient background information as necessary for our purposes[2]:  
The תשובה is a כתב התנצלות[3] (a “writ of justification”) defending actions taken by the בית דין of the רמ”א in response to a local crisis, and as the  רמ”א makes it quite clear in his description of the events, the ensuing bitter results were unexpected and troubling:
 … הנה בכל אלה לשלום נתכוונו בעצם וראשונה, אף כי במקרה מרה היתה באחרונה, ואף מקצת עזי פנים היו בקרבנו ועכשיו מהפכים דברינו לתוהו ובהו. מיהו אנו לשם שמים נתכוונו, והכל נמשך אחר המחשבה והכוונה. אף כי אחריתו ראש ולענה. “Behold in this entire incident our intention was peace, first and foremost, even though by happenstance the end was bitter. There were also a few brazen individuals amongst us, who are now turning things into utter chaos. However, our intent was for the sake of Heaven, and ‘everything follows one’s thoughts and intentions’, even though the end was gall and wormwood.”

While it is probably impossible to reconstruct a precise account of the incident, the following is obvious from the details presented in the תשובה: (1) The government did not suspect anyone of any type of wrongdoing[4]. (2) It was not an individual that was slandered; it was a group of about one hundred respectable community leaders or activists that were slandered. (3) False information was never provided to non-Jewish authorities, and those slandered were not slandered publicly — they were slandered in a private ruling by the decision of a בית דין which was then recorded in a written document. (4) Furthermore, the document was fashioned in a manner which made it evident that the ruling was an exaggeration and not an actual account, and (5) it was drafted only to be used as a means of forcing two opposing sides to reconcile a community quarrel. Unfortunately, (6) the document did become public knowledge and its intention was misconstrued by unscrupulous individuals.[5] And (7) there were dire consequences, probably due to involvement of the non-Jewish authorities, but we do not know what those consequences were.
The actual events that led up to this action are described at length and can be summed up as follows:
A group of pretentious rabbinic and lay leaders[6] convened to place a ban on a certain individual, causing him great harm[7]. (The reason for the ban is not clear.) This individual then sought to take revenge upon those who had placed the ban upon him[8] and was joined by others who sympathized with his cause,[9] ultimately splitting the entire community between his supporters and his enemies[10]. This caused a tremendous desecration of G-d’s name as the strife continued to escalate[11], which led to placing the entire community in danger of being expelled by the authorities[12].
The רמ”א and his colleagues attempted to intercede with the individual’s opponents, but were completely ignored[13], and the matter escalated to the point of death threats against the man upon whom the ban had been placed[14]. In an attempt to resolve matters, the רמ”א and his partners decided to write a fictitious halachic ruling[15], containing exaggerated and slanderous accusations against the individual’s opponents, with the goal being that the individual in question would then use this document to extort the ruling written against him from his enemies, whereby both the documents would be exchanged and destroyed. 
Now, before you extrapolate from here that the רמ”א  had a flippant attitude towards honesty, please consider:
(1) The רמ”א and his colleagues were quite concerned about the possibility that this individual might use the document inappropriately (i.e. reveal its contents to the authorities), and to prevent this, they had him swear a strict oath that he would not show the document to anyone else, and that he would only use it to get his opponents to hand over their original חרם document to him[16]. Anyone familiar with the severity of an oath in Jewish law, and the general fear of swearing falsely at that time, will understand why the outcome was quite a surprise to the rabbis who signed this slanderous document. Furthermore, רמ”א had taken additional steps to insure that the document would be null and void if misused, and as the רמ”א concludes in his justification, “אבל לא נחתם להרע בו לשום אדם חלילה לנו מרשע” (…it was not signed to inflict harm upon any person; G-d forbid that we should do evil).
(2) Regardless of the fact that the slanderous ruling and the resulting document were extremely limited in nature and not meant to be seen by the public (and certainly not the government), the רמ”א was clearly still troubled by the elements of dishonesty. He makes it quite obvious that he felt that he had no choice, and that it was entirely out of concern for the safety of the community that made speaking and writing falsely and negatively about fellow Jews necessary in this case. It is this decision that the רמ”א is attempting to justify in his כתב התנצלות – and as we will see, this was hardly taken lightly.
The רמ”א goes on to quote various sources to support his decision, and proceeds, in rabbinic style, to argue the point by analyzing a Talmudic ruling. Shapiro, when he discusses the Talmudic ruling tells only half the story. Shapiro writes, “The Talmud states, with regard to giving a man up for execution in response to a demand made by non-Jews, that this is not the way of the pious.” However, as we shall see, giving a man up for execution in response to a demand made by non-Jews has nothing to do with the pious — indeed, it is strictly forbidden according to the Talmud. The Mishnah in תרומות rules that if non-Jews were to approach a group of Jewish women and demand that they hand over one of them be defiled or else they would defile all of them, that it is forbidden to hand over one of the women. The Talmud Yerushalmi adds that the same rule would apply in a situation where a non-Jew demands of a group of Jews that they hand over one Jew to be executed or else they would all be killed, that it is likewise forbidden to hand over one of them[17]. 
In this תשובה the רמ”א applies an analogy: Just as it is forbidden to save the lives or the innocence of all through giving over one individual to be defiled or killed, so too it would be forbidden to slander, ridicule, and deride one individual, or a group of individuals (even if no one ever became aware of the slander) in order to remove slander and ridicule from the entire community.
However, the רמ”א sees two distinctions between the cases: Firstly, the halachah that forbids giving someone over applies to a situation where it is done with an action, whereas if it is a matter of speech it would be permitted. Meaning that if the powers that be needed information with which they could kill one of the group, and they threatened that unless that information is provided they would kill them all, it would be permissible to give this information — since by merely providing information they are not directly participating in the action of murder, and therefore they would not be considered accomplices to the execution. So too in our situation, since slander is a matter of speech, the Talmud’s aforementioned rule would not apply. And secondly, the prohibition not to give someone over to the gentiles, is only in a case where they do not request a specific individual. However, were the non-Jews to demand a specific individual to defile or kill, and threaten that if he isn’t turned over they would defile or kill the entire group, then it would be permitted to turn him over. The רמ”א compared the situation in his city to a situation where specific individuals are being targeted; therefore he permitted falsehood and לשון הרע to be spoken.
Regarding this second limitation, the רמ”א questions his ruling based on the following anecdote related in the Talmud Yerushalmi: An individual was sought by the royal government, and he escaped to לוד. When the government surrounded the מדינה, ר’ יהושע בן לוי handed him over to them. Until this point in time it had been common for Eliyahu HaNavi to visit R. Yehoshua, but after this incident, אליהו הנביא ceased his visits. Subsequently, R. Yehoshua fasted many fasts, and Eliyahu appeared to him, and said, “Shall I reveal myself to a slanderer?” To which R’ Yehoshua responded, “But have I not acted according to the משנה?”  To this Eliyahu replied, “Can this be considered משנת חסידים?”
It is in response to this that the רמ”א states, “even if we did not act in accordance with ‘the way of the pious’, nevertheless, we acted in accordance with the law.” It seems reasonable to assume that since the slander recorded in the document written by the רמ”א and his colleagues was never meant to be seen by anyone and would have alleviated the threat of expulsion, the רמ”א felt that it was not necessary to follow “the ways of the pious” and was satisfied with following the letter of the law[18]. Hence, Shapiro’s claim in the name of the רמ”א “that it was acceptable to provide false information about an individual whom the government suspected of wrongdoing if this would alleviate the situation” is neither fair nor accurate.
In conclusion, I think it is fair to say that the position of the רמ”א in שו”ת הרמ”א סימן י”א does not represent a radical position which may shock many readers as being “on the outer limits of what has been viewed as acceptable when it comes to falsehood and deception”. Rather, there is no reason not to view this as the position of a responsible community leader of a high moral caliber, and it is unfortunate that he has been portrayed differently.
Postscript:
Although the following does not affect the above, I include it for whatever historical interest it may have: From the language of תשובה י”א in שו”ת הרמ”א (קהלתנו, עירנו, רחובותינו, = our community, our city, our streets) it seems almost certain that the case under discussion took place in the author’s city.  If the author was the רמ”א, that city would be Cracow, Poland where the רמ”א served as Rav from an extremely young age until his passing. However R. Asher Ziv, the Rema’s biographer and editor of his תשובות, suggests that the incident took place in the city of Prague in Bohemia[19]; a city plagued by strife and under the constant threat of expulsion. Since the five תשובות following סימן י”א in שו”ת הרמ”א were written by various rabbanim regarding problems in the city of Prague, it is not unlikely that תשובה י”א also concerns a dispute in Prague.
Based on the above, it would seem plausible to conclude that תשובה י”א was not even authored by the [20]רמ”א; rather it was sent to him by a colleague from Prague[21]. It is additionally possible that the תשובה was in no way connected to the רמ”א, however, since the תשובה was found among the other תשובות relating to Prague it was included accidently. This would not be all that surprising, since we do know that there are תשובות in שו”ת הרמ”א which were erroneously included in the collection[22].
   
Response by Marc B. Shapiro

Let me begin by thanking Rabbi Yitzchok Stroh and the many others who have read my book carefully, especially those who have sent comments. Some readers have pointed out errors or alternative ways to read passages and others have called attention to important new sources. I have already mentioned some of these in past posts and will continue to do so in future posts.
Stroh believes that my presentation of a responsum of R. Moses Isserles is inaccurate and suggests that it was my bias that led to my objectivity being affected. I am not sure what my bias would be in this case, presumably a desire to make use of an important source in support of my argument.
Stroh’s summary of the responsum is helpful, especially since as Stroh notes it is difficult to reconstruct exactly what happened. The beginning of the case was, as Stroh states:
A group of pretentious rabbinic and lay leaders convened to place a ban on a certain individual, causing him great harm. (The reason for the ban is not clear.)
In reading over the responsum, I think that the reason for the ban is explained on p. 56 in Siev’s edition. It states:
עליו נגזרה גזירה ונחתך עליו דין מסור הגמורה
I assume this means that they regarded him as a moser, and that is why he was placed under the ban. Earlier it states regarding this man ודמו להיות מותר which apparently alludes to the fact that a moser should be killed.
Stroh notes that I am mistaken in assuming that the government suspected one of the Jews of wrongdoing and that R. Isserles ruled that false information could be provided if this was the only way to save the community. He also states that contrary to my presentation, it was not one person who was to be slandered but numerous community leaders.
I have read over the responsum and I have to agree that the slander was not directed against one person but against a group, so I thank Stroh for this correction. In fact, I am not the only one to make this mistake, and am indeed in good company (not that this is in any way an excuse). Nachum Rakover also describes the case as being one of slander against an individual.[23]
מוציאי הדיבה קיוו, שאם “ישנו את טעמם”, כלומר ישקרו אודות מישהו מהקהילה, יעלה בידם להחזיר את השלום על כנו.
Based on this, Rakover then has an entire section dealing with if it is OK to sacrifice an individual to save the many.
R. Aryeh Pomeranchik writes:[24]
בתשו’ הרמ”א סי’ י”א למד מזה, דמותר להוציא שם רע על אחד מן הצבור כדי להשקיט בזה המריבה שנפלה בין הצבור ולעשות שלום
R. Aharon David Goldberg writes:[25]
אמנם בתשובות הרמ”א סי’ י”א מפורש דלא כדבריו, שדן בשאלה אם מותר להוציא שם רע על אחד מן הצבור כדי להשקיט מריבה
R. Yitzchak Zilberstein might also make this error (although it could be that he was simply not being exact in his description of the case, as his focus is on the underlying halakhah):[26]
ובתשובות הרמ”א (סימן יא) למד מזה, שמותר להוציא שם רע על אחד, כדי להשקיט בזה מריבה שנפלה בין הציבור ולעשות שלום.
It is certain, however, that R. Zilberstein is mistaken when he states[27] שלמעשה הרמ”א לא התיר, as the entire responsum is indeed a justification of the action which occurred, and R. Isserles states: “Even if we did not in accordance with ‘the way of the pious’, nevertheless, we acted in accordance with the law.”
What about the non-Jewish government? Again, I have to agree with Stroh that there is no evidence that the slander was ever directly reported to the government, although I still assume that R. Isserles would agree that to save the community, one would even be permitted to slander someone to the non-Jewish authorities, not merely to the Jewish community. As I see it, and please correct me if I am wrong, the entire logic of R. Isserles’ responsum leads to this result even if, in the case under discussion, the slander was intended to remain in the Jewish community. How else is one to understand his words (p. 53):
דמותר להוציא שם רע אם כוונתו לשמים ולתכלית טוב כדי לעשות שלום
I thank Rabbi Stroh for setting the record straight.
Regarding giving up a man for execution in response to a demand made by non-Jews, I thought I was clear that we were dealing with a demand for a specific person, the details of which Stroh properly explains. Yet I should have also mentioned that the case must be one where the entire community will itself be killed if they do not give up the man.[28]
In his conclusion, Stroh states that the position of R. Isserles should not be seen as radical. “Rather, there is no reason not to view this as the position of a responsible community leader.” Yet I still think that in the eyes of most people what R. Isserles agreed to will be seen as “on the outer limits of what has been viewed as acceptable.” In fact, R. Daniel Eidensohn, who translates some of R. Isserles’ responsum here, writes as follows: “As far as I know the ruling of the Rema was not accepted and is not cited with approval by anyone else. It is the thinking, however, of one our major poskim and illustrates how important community peace is.”
R. Israel Zev Minzberg finds the permission to slander another for the sake of peace incomprehensible, and states that one cannot rely on this ruling.[29]
דברי התשו’ הנז’ נפלאו ממני ולדעתי אין לסמוך ע”ז למעשה כלל וכלל.
R. Yitzhak Hutner also found the responsum unacceptable and stated that it was not written by R. Isserles.[30] In other words, contrary to Stroh, Rabbis Eidensohn, Minzberg and Hutner do find the conclusion of the responsum surprising, and indeed “on the outer limits”.
Finally, I must note that R. Zilberstein refers to the responsum of R. Isserles in another place where he discusses the following problem:[31] Reuven is a very good and God-fearing student. His brother Shimon is not, and causes Reuven all sorts of serious problems. The teacher of Reuven wants to stop Shimon from doing this, and the only way to do so is to tell Shimon’s father, Yaakov, that Shimon said that he was going to steal from Yaakov in order to hire some thugs who would attack Reuven. When Yaakov hears this, he will take steps against Shimon and this will stop Shimon’s harassment of Reuven. Is it permitted for the teacher to lie about Shimon in order to protect Reuven?[32]
R. Zilberstein concludes that it is permitted to tell Yaakov the falsehood about Shimon, since Shimon is a “ba’al mahaloket”. In addition to citing R. Isserles’ responsum, he also cites an opinion of the Hafetz Hayyim.[33] The Hafetz Hayyim states that if one sees that a certain individual will be a bad influence on his son or student, he should warn him to keep away from this individual. If, however, by telling the truth about this individual, it will not be enough to keep one’s son or student away, the Hafetz Hayyim states that “it is possible” that it is permitted to exaggerate the individual’s wrongdoing, on the condition that one does this le-shem shamayim and not because of any personal grudge.
ולענין הפרט שלא יגדל העולה יותר ממה שהיא אם יספר להם כאשר היא לא יתרחקו מאתו ויכול לבוא מזה ריעותא אפשר דמותר לגדל

Although the Hafetz Hayyim shows some hesitation as to whether this is permissible, R. Zilberstein has no such qualms and concludes that it is permitted to lie for the good purpose of helping Reuven.

This decision provides further proof for my point that there are many voices in the tradition that sanction departing from the truth when they deem it necessary.


[1] Shapiro, Changing the Immutable, p. 255.
[2] All excerpts from שו”ת הרמ”א are from R’ Asher Ziv’s 1970 edition. “יבינו הקורא מעצמו מתוך דברי ענין ההתנצלות בעצמו”. (שו”ת הרמ”א נ”ב ע”ב.)
[3] “כתב התנצלות בענין מעשה שנעשה בשנות טעמים מפני רדיפת שלום” (שם).
[4] כנראה שטעותו של שפירא נובע מב’ קטעים בתשובת הרמ”א, הא’ – ממה שכותב הרמ”א שם עמ’ נ”ד “ובנדון דידן ייחד לנו אחם מהם, שאומר האויב כי נפשותיהם של אלו היה מבקש כמו שנתבאר”, וכנראה ששפירא הבין שהמדובר הוא באויב אינו יהודי מאישי הממשלה, אבל ברור שה”אויב” הוא אותו היהודי שהיה מוחרם מתחלה כפי שמבואר בפירוש בהמשך התשובה שהוא היה האויב של קבוצת הקצינים שהחרימו אותו. עי’ בהמשך דברינו בפנים. 
הב’ – ממה שכותב הרמ”א “ולא היה לנו למסור נפש אחת מישראל …”  ושפירא הבין שהכוונה למסור נפש אחת מישראל לעכו”ם, אבל ברור הדבר כפי שכותב הרמ”א בהמשך דבריו שמדובר אודות מסירה ללעג ולקלס ולהוצאת שם רע כמו שכותב הרמ”א “ולא היה לנו למסור נפש אחת מישראל ללעג ולקלס ולהוציא עליו דברים אשר לא כן. כ”ש על חשובים כמאה מנהיגי המדיניה, כמו שעשו במעשה אשר אבאר למטה” וכפי מה שמבאר הרמ”א למטה לא היה מעולם מסירה לאינו יהודים.
וגם בהקטע שם נ”ה ע”א “דמצינו שפת יתר על קציני ארץ ליתן אותם לפני בני בליעל” כוונתו על המסירה לפני אויביהם היהודי הנ”ל וחביריו.
[5] שם עמ’  “… ומפרש בו (בהפסק דין) דברים זרים אשר לא עלו על לבנו מעולם, והתחברו אליו אנשים רקים … מוציאי דבה…”
[6] שמכנף הארץ שמענו שנתחברו יחד כתרנגולים של בית בוקיא, ועי’ ברש”י יבמות פ”ד ע”א שפי’ בקיאים וחריפים ואין מניחים תרנגול נכרי ביניהם.
[7] שם נ”ה ע”א “וזה המעשה אשר אירע לא ראינו מעשה מעולם כזה לרוע, שמכנף הארץ שמענו שנתחברו יחד כתרנגולים של בית בוקיא כל רועי ישראל האזינו גדולי ארץ גודרי פרץ פרשו מצודתם בנציבותינו על אחד ונלכד בחרמם ובמצודתם וכדגי הים יאסוף במצותם, ודמו להיות מותר וכסהו בעפר.”
[8] שם “הנ”ל רצה על אויביו שהמציאו עליו הדברים לנקום ובהם התעבר הצריח ואף התגבר.”
[9] שם “ונתחברו אליו אנשים לעזרתו, אשר היה להם צר בצרתו.”
[10] שם “ובסבת זה נחלקה הקהלה לשנים …”
[11] Apparently the strife came to be judged before the authorities as the רמ”א writes: “כמו שהיה ידוע מקדמות דנא לכל באי שער עירנו, המעשים הרעים שהיו נגד פנינו, ואויבינו היו פלילים. וכאן כנראה כוונתו לאויבים אינו יהודים כמאמר רז”ל המובא ברש”י ריש פרשת משפטים.  
[12] שם. “ובזה נתמוטטו עמודי ארץ ויסודיה. והיה לחוש בן יפוק ח”ו חורבא מיניה מאת פני המלך והשרים לגרש כל העם הזה כולו כהניה ושריה.”
[13] שם. “פתחנו לשלום ודברנו עם הצד שהיה מנגד להשלים אתו והיינו בעיניהם כמתעתע”
[14] שם. “[ואמרו] כי לא ישקטו עד אשר רצו להרוג אותו” (בדפוסים אחרים כתוב עד שרצו להרוג אותנו).
[15] שם עמ’ נ”ז: “גם מתוך השטר ניכר כי לא דינא עבדנו רק ע”ד גיזום … כי השטר מזויף מתוכו … השטר בטל ומבוטל … כי לא נתקן אלא מפני השלום …”
[16] שם נ”ו: “כי נשבע לנו שבועה חמורה שלא רצה לגלות השטר החתום לעולם ובשמנו לא יהא נקרא. רק שיוכל להתפאר בו שגם לו חתומים כאלה, באולי יכול להוציא ע”י זה השטר החתום עליו (כלומר שטר החרם) ויבואו על ידי זה להשלים אתו, ויבערו שני הצדדים השטרות מן העולם. ואם ככה היה עשה לנו לא היה בדבר אלא קדוש השם יתברך … אבל מעולם לא עשינו בכוונה אחרת כי אם להוציא את שלום. ואם לא קיבל עליו להחזיר לנו את חתימתנו.”
[17] כמובן שכל זה  מיירי אף כשברור הדבר שביכולתם להרוג את כולם, ולדוגמא אם נמצאו כמה יהודים בבנין ויש ביכולת הנכרים להרוג כולם ע”י שיפוצצו כל הבנין, והנכרים מבקשים למסור להם אחד מהיהודים אסור מן הדין למוסרו להם. וביאור הדבר הוא כי אף באם לא ימסרו אחד מהיהודים להנכרים יהיה אותו יהודי נהרג עם האחרים אך אין לנו רשות לברר מי הוא זה שיצא להריגה. אך כאשר הנכרים מבקשים איש פרטי אזי מעיקרא דדינא מותר למסור אותו אמנם עפ”י דברי הירושלמי אינה ממידת חסידות כי למעשה אנו מוסרים אותו להריגה וטוב לנו להניח הדבר בידי שמים אף שעל פי דרך הטבע מן הסתם יהיו כולם נהרגים.
[18] If one were to be מדייק in the language used by the רמ”א in formulating his ruling, he will notice that the רמ”א permits one to be משנה (alter) for the sake of peace, but he never allows one to be משקר (lie) for the sake of peace. This רמ”א would be proof to the opinion of the Lubavitcher Rebbe Ztz”l (שיחות קודש שבת פ’ עקב תשמ”א אות כ”ז עי”ש) who explains that one may be משנה (alter) for the sake of peace, but not be משקר (lie) for the sake of peace.
[19] הר’ זיו שם הערה 64, “אבל קרוב הדבר לומר שהכוונה פה לקהילת פראג העתיקה …”
[20] ואולי זהו הכוונה במש”כ בתוכן הענינים שנדפס בדפוס ראשון של שו”ת הרמ”א, כתב התנצלות בענין רדיפות שלום לגדול אחד, היינו שהתשובה הוא לגדול אחד ולא יצא מידי הרמ”א.
הר’ אשר זיו מילת אלו מתוכן הסימנים והעיר בשולי הגליון, בכל ההוצאות נוסף פה ‘לגדול אחד’. ואולי הבין שהכוונה הוא שהתשוב נכתב אל גדול אחד.
[21] אולם הר’ זיו לא הזכיר שתשובה זו אינו להרמ”א
[22] זיו בהמבוא לשו”ת הרמ”א עמ’ 30
[23] Matarah ha-Mekadeshet et ha-Emtza’im (Jerusalem, 2000), p. 176 (emphasis added here and in subsequent quotations).
[24] Emek Berakhah, p. 41.
[25] Shirat David, Bereshit-Shemot, p. 132.
[26] Hashukei Hemed, Sukkah, pp. 443-444.
[27] Ibid., p. 444.
[28] JT Terumot 8:4.
[29] She’erit Yisrael, Orah Hayyim no. 13.
[30] Sefer ha-Zikaron le-Maran Ba’al “Pahad Yitzhak”, p. 334.
[31] Hashukei Hemed, Makot 11a.
[32] One should not assume that this question, or any of the other strange questions in R. Zilberstein’s works, are actual cases. I think it is obvious that he makes them up in order to have a springboard to discuss various halakhic issues.
[33] Hafetz Hayyim, Kelal 4, Be’er Mayim Hayyim, no. 43.