1

Shaving on Chol HaMo’ad the Never-ending Controversy

While we are generally aware that denominations other than Orthodox changes and adapt to the times, in reality Orthodoxy has also made significant changes. Of course, these changes are all within the parameters of Halakah, but they are in part concession to the times.

By way of example, the Mishha and in turn the Gemera record various practices when a person is an אבל (mourner). One such practice is עטיפת הראש winding or wrapping of the head. Tosefot, however, note that although this practice is recorded without controversy – in their time, as it was uncommon to wrap one’s head there is no longer an obligation to do so.

At the time Tosefot offered this decision – a decision which took into account then modern sensibilities – it was fairly unremarkable. This would change significantly when a movement sprung up which took conforming Judaism to modernity to the extreme. The Reform movement which altered numerous, significant practices precipitated a greater hesitancy to effect change – even legitimate change within Orthodoxy.
One example of the battle over changing long established practices relates to Hol haMo’ad. The Mishna in Mo’ad Koton [1] enumerates but a small class of people who are permitted to shave on Hol haMoad. This class is comprised of people, who for reasons out of their control were unable to shave before the holiday. One who is released from prison on the Holiday is one example. But, anyone other than this small class of persons according to the Mishna, are prohibited from shaving on Hol haMo’ad. The Gemera explains the restriction in light of human nature. One, in theory, has more free time on Hol HaMo’ad (assuming one is not working) thus one may procrastinate to shave and get a haircut until Hol HaMo’ad. This would mean that they would begin the holiday unkempt, unshaven. Thus, to avoid this sort of procrastination, one is prohibited from shaving on Hol haMo’ad thus removing any temptation to delay until Hol HaMo’ad.

The question which we will now turn out focus to – is whether this reason is dispositive. That is, assuming one did in fact shave before the holiday can he then shave on Hol HaMo’ad as he did comply with the law.

For hundreds of years the answer to this question was no. Rabbenu Tam (1100-1171) did allow for someone who shaved before the holiday to do so on hol haMoad. This position, however, was uniformly rejected by everyone who voiced an opinion on this matter until the 18th century. The 18th century, however, saw an increase in emancipation and closer contact between Jews and non-Jews. This was on an unprecedented level, Jews did not want to appear strange and thus many Jews began, what is common today, dressing in contemporary style and the like. Jews also, although there were also examples earlier, began to appear clean shaven. Now, during the rest of the year, maintaining a clean shaven look did not pose too significant of a problem. But, there was one time where, based upon precedent, it would be difficult to remain clean shaven – during Hol HaMo’ad.

The first to readdress this issue was R. Yehezikel Landau, the author of the Noda B’Yehuda and one of the greatest Rabbis of his time. In approximately, 1775, R. Landua was asked (O.C. Tinyaha, no. 101) if there was any way for those who shave year round, and did so prior to the holiday, to do so on Hol HaMo’ad. R. Landau ruled in the affirmative, with one important condition – that it be done with a poor barber. This condition was an attempt to conform with the various prior opinions. Namely, R. Landau understood the rejection of Rabbenu Tam’s opinion limited to instances which the person would shave themselves. But, a poor person who needed this to survive and thus was able to do work on Hol HaMo’ad anyways, everyone would agree shaving would be permitted. As R. Landau was highly respected his opinion did not go unnoticed. With the publication of this responsa in his work Noda B’Yehuda, the reaction was almost immediate and negative. From all over Europe various people either directly addressed R. Landau or wrote their own private responses expressing their opinion to maintain the status quo. In the end, R. Landau included four responsa on this topic. The reaction was summed up by R. Hayim Yosef Azulai, the Hida (Yosef Ometz, no. 7),

ואולם בו בפרק ראיתי אשר תיכף אזרו חיל הגאונים רב של ברלין ורב של אמשטרדם וחלקו עליו, ונדפס בספר בינן אריאל. גם ידעתי נאמנה שרבני גאוני פולין ואשכנז היטב חרה להם היתר זה וכמעט נגעו בכבוד הרב. ואין ספק כי רבני ארץ ישראל . . וכל טורקיאה ומצרים . . . וערי המערב . . . כולם יסמכו עם רבני אשכנז ופולין

“During that time I heard immediately they quickly girded themselves, the great ones, the Rabbi of Berlin, the Rabbi of Amsterdam and they disagreed [with R. Landau] and this was printed in Binyan Areiel. I also heard from trustworthy sources that the Rabbis of Poland and Germany were extremely disturbed by this leniency and they went so far as to disparage R. Landau. And I have no doubt that the Rabbis in Israel, Turkey, Egypt, and all the Eastern lands agree with the Rabbis of Poland and Germany.”

There were those, who could not reconcile their high esteem of R. Landau with his permissive stance on shaving, and thus made the claim (which has no support) that R. Landau retracted his statement. [Such a claim – that the author retracted or an errant student was the author of a controversial respona – is rather common. See Speigel, cited below, pp. 271-75 for other examples.]

One particularly fantastic (and well-known) explanation attempting to reconcile the R. Landau’s position was offered by R. Moshe Sofer, the author of Hatam Sofer. R. Sofer (Shu”t Hatam Sofer O.C. no. 154) wants to understand R. Landau’s position in light of another shaving question. One is prohibited from using a straight edge razor on their face. But, as this was before electric shavers many of the other options for shaving were not appealing to some and they used a straightedge anyways. R. Landau was offered a possible justification for this practice, which R. Landau in turn rejected. The justification was one is prohibited from removing “hair” with a straight edge. Hair is only hair, for many other laws, if it is long enough to turn back on itself. Thus, if one shaved every day or so, even with a straightedge they would not be removing hair as it was too short. Now, as I mentioned R. Landau rejected this, however, R. Sofer claims as this position was perhaps the only available understanding of what many did to not consider them sinners, R. Landau in fact accepted this. But, R. Landau also knew that if he came out that shaving was prohibited on Hol HaMo’ad many people even those who use a straightedge will follow that opinion. Thus, at the end of the holiday they would have long enough facial hair to be shaving “hair.” While ascribing such motivation to R. Landau is somewhat far-fetched, it does demonstrate how far people would go to reconcile their views of R. Landau with this position.

This, as would be expected was not the end of this issue. Soon after the Noda B’Yehuda was published, another book – which was controversial in its entirety – was published. This book, Besamim Rosh, (previous discussions here) was published in 1793 but attributed to R. Asher b. Yehiel who lived at the end of the thirteenth and beginning of the fourteenth centuries. Almost immediately after its publication there were those who questioned this attribution and instead said it was not the RoSH who wrote this but instead it was the publisher, R. Saul Berlin. Although there were many controversial statements in this book, R. Saul Berlin retracted only one – his statement regarding shaving on Hol HaMo’ad (no. 40). This was the only pronouncement R. Saul agreed was not from the RoSH.

Thus far, this discussion was limited to single or a few responsa, however, in the 19th century we have the battle of the books. Isaac Samuel Reggio (1784-1855) (mentioned previously here), an Italian Rabbi and admitted maskil, devoted an entire work, Ma’amar HiTeglachat (Vienna, 1835), to the issue of shaving on Hol HaMoad. Reggio was one of the most accomplished Rabbis of his day, he was fluent in numerous languages, founded the Rabbinic Seminary in Padua and was an amazingly prolific writer (and he also went clean-shaven as is evidenced by the portrait accompanying the article on him in the Jewish Encyclopedia here). Perhaps his most accessible book is a translation in Italian and commentary in Hebrew (titled Torat HaElokim, Vienna, 1818)of the bible based upon the simple meaning (pehsat)was recently reprinted. [It appears the sponsor of this reprint was unaware of Reggio’s maskilik leanings and – as the story was related to me – was horrified to find this out and thus this edition is now difficult to obtain.]

Reggio takes the position of R. Landau one step further. You will recall that R. Landau allowed for a poor Jew to cut one’s beard but not the person himself. Reggio, however, offers that even the person themselves can shave. This is so, as he understands that in the time of the original enactment, it was highly uncommon to shave weekly and certainly daily. From this assumption Reggio notes that (1) those who shave more often the hair returns quicker and thus before it was no big deal not to shave over 8 days but today, even in such a short time the hair returns too quickly and (2) since everyone now shaves often this is not the set of circumstances the original enactment was aimed at. That is, only for those for whom shaving was infrequent was there a true fear of forgetting or pushing off shaving but today that is not nearly as much of a consideration. Of course, Reggio notes that if one did not shave prior to the holiday he can not shave on Hol HaMa’od.

This being the most sweeping ruling on this issue and the most comprehensive, an immediate reaction was not short in coming. In fact, there were two books written for the sole purpose of refuting Reggio’s position. The first, a play on Reggio’s title was Tegalachat haMa’amar (Livorno, 1839), was published anonymously. However, we now know that in fact the author was R. Avrohom Reggio, R. Yitzhak’s father!

To this day, shaving on Hol HaMoad remains a contentious issue. R. Moshe Feinstein one of the greatest American Rabbis post-Holocaust allowed for similar reasons to Reggio, one to shave on Hol HaMo’ad. R. Feinstein explains (O.C. vol. 1 no. 163) that “today for those who shave daily, they can shave on Hol HaMo’ad.” Although there is again a permissive opinion, one from a highly respected person it still did not end this issue. In the Shmerat Shabbat K’Helchata (vol. 1 p. 274), on the top portion of the text he records that it is prohibited to shave on Hol HaMo’ad. Then in a footnote he is willing to only cite to R. Feinstein’s responsa without explaining what it contains.

Additionally, in an English book devoted to the laws of Hol HaMo’ad [2] they have taken it one step further by judiciously quoting R. Feinstein to give a different impression than the actual respona. As is provided in this book, R. Feinstein concludes his responsa with “I only offer this permissive opinion to those who have a great need or are in pain from not shaving.” (p. 26 n. 7). This is where the quote ends in the English book [of course, this does not actually appear in the English section, rather this is all relegated to a Hebrew footnote – in the English portion, the authors only allow that if refraining from shaving would result in a loss – davar ha’avod – only then is it permitted]. But R. Feinstein actually continues with “if one wishes to rely upon my permissive stance for appearances sake only [i.e. not only for ‘great need’ or ‘pain’] there is no need to stop him as in reality this is permitted.”

אבל מ”מ איני נוהג להתיר אלא למי שיש לו צורך ביותר או מצטער ביותר, ואם אחד ירצה לסמוך ע”ז גם בשביל היפוי לבד אין למחות בידו כי מעצם הדין הוא מותר לע”ד

Sources: The vast majority of the above comes from M. Samet article on the topic of shaving on Hol HaMo’ad. This article appears in M. Benayhu, Tegalachat B’Holo shel HaMo’ad, Jerusalem, 1995. Benayhu’s book also reprints both Reggio’s books as well as a significant amount of material from manuscript and he provides a history as well. Interestingly, Benayahu attempted to convince R. Shlomo Zalman Aurebach that today it would be permissable to shave on Hol HaMo’ad. Benayahu, however, notes that right when he finished this book, he was planning on showing it to R. Aurebach for his thoughts and comments but R. Aurebach passed away.
[Of course, the primary material contains additional important information]. This book is the most comprehensive discussion on the topic. Samet’s article has now been reprinted in his Hadash Assur min HaTorah, Jerusalem, 2005. Samet, among other things, discusses R. Feinstein and the controversy over his opinion. There are others who discuss this topic, however, as they mainly use the two above sources (with and without attribution), and they do not add much of anything I have not provided additional citations.

I want to thank M. Solomson for providing both editorial corrections and material for this post.

Notes
[1] On the name of this Mescheta and whether it is Mashkim or Mo’ad Koton, see Y. S. Speigel, Amudim b’Toldot Sefer HaIvri, Kitvah v’HaTakah, pp. 326-27; 348-56 (discussing which rishonim referred to it as Mashkim and which referred to it as Mo’ad Koton and whether any conclusions can be drawn from that data).

[2] D. Zucker & M. Francis, Chol HaMoed, Brooklyn, NY, 1981. The book even contains an approbation from R. Feinstein, although R. Feinstein says he did not look in great detail at the book and instead his approbation is based upon the reputation of the authors.




Teffilah Zakah: History of a Controversial Prayer

Teffilah Zakah:
History of a Controversial Prayer*

Yom Kippur has many unique prayers, many of them have been added through the centuries. For instance, R. Hayyim Yosef Dovid Azulai (Hida) has a longer viduy. Another such addition is the prayer known as Teffilah Zakah. In this prayer the person enumerates and connects their various sins with various acts and asks for forgiveness. Additionally, the person forgives any who have caused them pain or harmed them. This prayer was popularized by R. Avraham Danzig, in his Hayye Adam.

There are two reasons offered for reciting this prayer. Dr. Sperber opines (Minhagei Yisrael, vol. 2, p. 37 and esp. n.10) that the purpose of this prayer is to fulfill the opinion of the Ramban who holds that is an additional viduy on directly prior to Kol Nedrei on Erev Yom Kippur. (He offers that either Teffilah Zakah or a piyyut from R. Abraham ibn Ezra, fulfills this purpose). R. Abraham Ashkenazi (Brit Abraham, Warsaw, 1884, no. 129) offers a different reason for Teffilah Zakah. The purpose according to him, is to accept Yom Kippur early. At the end of Teffilah Zakah, one voices that they are accepting “kedushas Yom Kippurim.” In fact, R. Ashkenazi holds that for the purposes of fulfilling the opinion of the Ramban Teffilah Zakah would be insufficient as it differs significantly from the standard viduy. R. Ashkenazi, however, also holds that one should fulfill the Ramban’s opinion and thus recite the regular viduy after Teffilah Zakkah. (Surprisingly, Dr. Sperber doesn’t discuss R. Ashkenazi’s concern).

As mentioned above, Teffilah Zakah has a passage where one forgives others who may have sinned against him. This is necessary, as although Yom Kippur takes care of sins between man and God, it can’t take care of sins between man and man. Thus, it is necessary for each to receive forgiveness from their fellowman to achieve full forgiveness. Teffilah Zakah is long, and this paragraph that forgives others, appears at the end. The Chofetz Chaim attempted to alleviate this problem “and contacted the printers to change the placement of this paragraph of Teffilah Zakah . That is, to place this later paragraph earlier in prayer, to place the paragraph where one forgives others in the middle or the beginning.” According to the Chofetz Chaim’s son, R. Areyeh Leib, some siddurim did in fact shift around the prayer. (Michtevei Chofetz Chaim, p. 21-2 no. 52; quoted in Sperber, Minhagei Yisrael, vol. 4, 274).

The source to popularize this prayer is the book Hayye Adam.[1] Hayye Adam was first published in 1809, then in 1819 (the discussion regarding Teffilah Zakah only appears in this second edition – and thus, perhaps should be called a mahdurah [2]), and the third edition in 1825 – it would be this third edition that would be used for subsequent printing. [3] And, thereafter there was a flood of reprints – by 1960, Hayye Adam had been published at least 103 times (!) – a very popular book by any measure. While the book was reprinted on many occasions there were slight changes (some for the worse – there were many printing errors that crept in). As relevant to our discussion, in some editions, the portion discussing Teffilah Zakah changed as well.[4] The source that R. Danzig lists for Teffilah Zakah (klall 144), is the Sefer Hemdat Yamim. [5] In light of the fact that Hemdat Yamim is controversial in some editions of the Hayye Adam they removed words “Hemdat Yamim” so as not to have that as the source for this prayer.[6] Not all publishers dealt with the mention of Hemdat Yamim in the same manner. The full passage, as per the second edition of the Hayye Adam (see above – this is the first time this prayer appears in the Hayye Adam):

אח”ז ילך לבית הכנסת באימה ורעדה והמנהג בקהלתינו בכל בתי מדרשים להוציא ס”ת מהיכל כמש”כ בכתבי האר”י ז”ל וכבר נדפס בחמדת הימים התפילה שיסדר ואמנם לא כל אדם מבין הדברים רק מי שבא בסוד ה’ ומי שא”י הוא להם כדברי ספר החתום ולכן העתקתי בספרי’ קדמונים תפלה בלשון קל . . . וכו

In the Zolkeiv(1838) edition the words “וכבר נדפס בחמדת הימים” are missing (this makes the next clause – “but not everyone understands those words” and “those words will be like a closed book” unintelligible); while in the Vilna (1849) edition only the words

אח”ז ילך לבית הכנסת באימה ורעדה והמנהג בקהלתינו בכל בתי מדרשים להוציא ס”ת מהיכל כמש”כ בכתבי האר”י ז”ל

and the rest of the paragraph explaining why R. Danzig was required to create a new prayer in a “simple language” doesn’t appear. In the Vilna (1895) edition they have as follows:

אח”ז ילך לבית הכנסת באימה ורעדה והמנהג בקהלתינו בכל בתי מדרשים להוציא ס”ת מהיכל כמש”כ בכתבי האר”י ז”ל והעתקתי בספרים קדמונים לומר אז וידיו בלשון קל

This way they avoid the ambiguous pronoun (the problem with the Zolkeiv) and provide background for the prayer generally, of course they have still altered what R. Danzig found unremarkable.

The twin factors [7] of the use of a suspect work, Hemdat Yamim, and the creation of a new prayer, made some hesitant to adopt Teffilah Zakah. In the Tosefot Hayyim, a commentary on the Hayye Adam written by R. Meshulum Finkelstein, [8] deals with both of these issues and defends the recitation of Teffilah Zakah (klall 144 n.31). First, he alleges the prayer is not the same as that in Hemdat Yamim.[9] Second, he argues that the concern of saying a later prayer – this concern is attributed to the AriZal and is why, according to some the Yigdal prayer is not recited in some circles – is applicable to “yehidei segulah” (special people) and not to the masses. This is demonstrated by the many piyyutim we recite which are later than the cut-off date for prayers (R. Eliezer HaKalir – whenever he may have lived). Additionally, according to some, any prayer that has been accepted by the masses, this concern is not applicable.[10]

What is worthwhile mentioning is that R. Danzig is not the only talmid HaGra to use the Hemdat Yamim. He is also not the only talmid HaGra to have his work censored for such an inclusion. R. Eliach (Avi HaYeshivos, pp. 184-186) notes that the talmidei HaGra had no problem using and praising the Hemdat Yamim. Aside from R. Danzig, R. Alexander Suesskind, author of the Yesod V’Soresh HaAvodah, in his Last Will and Testament he praises the study of Hemdat Yamim. In at least one edition of R. Suesskind’s Last Will and Testament, Tzavah Yesod V’Soresh HaAvodah, Jerusalem, 1955, the reference to the Hemdat Yamim was removed. Thus, on the one hand we have a group of people who had no issues using the Hemdat Yamim, while on the other hand, there is another group of people who wish to remove any such references.

Whatever the ultimate source of this prayer, there is no doubt that today, it is a popular one.

Notes

*The fullest discussion of this prayer can be found in Mordechai Meyer’s article “On ‘Teffilah Zakah'” in Kenishta, vol. 2 pp. 119-138 including the language above of the various editions of the Hayye Adam.

[1] According to R. Barukh haLevi Epstein, (Mekor Barukh, vol. 3 p. 1260 [end of chapter 21]), R. Danzig titled the book Hayye Adam to avoid any attempt to abridge it as it would then be titled Kitzur Hayye Adam (Shortening the Life of Man). If this is true, it appears it did not help as in 1854 an abridged version was published although the title was Kitzur M’Sefer Hayye Adam (An Abridgement of the Work Hayye Adam). Interestingly, R. Y.S. Nathenson refers to the Sefer Hayye Adam as Kitzur Hayye Adam. Shu”t Shoel u’Meshiv, vol. 2 no. 14 (it is unclear whether there should be a Hey prior to Hayye Adam that would have R. Nathenson as merely listing the Sefer Hayye Adam as an abridgment and the “kitzur” part would not be part of the title.)

[2] For the use of this term “mahdurah” and when it should be applied and more specifically should this second edition of the Hayye Adam should be deemed a mahdurah m’Tukenet or mahdurah Sheneiah, see Y.S. Speigel, Amudim b’Toldot Sefer HaIvri: Kitveah v’Hatakah, Ramat Gan, 2005, 109-60.

[3] Teffilah Zakah was published separately numerous times under the title Teffilah Zakah (it was here it seems the usage of Teffilah Zakah became popular – R. Danzig never refers to it as Teffilah Zakah). The first time it was published was in Minsk, 1833 (see Meir, supra, p. 122)(there is possibly one earlier print by a year or so, in Russia also around 1830 but this is not definite) and republished as a seperate prayer on numerous occasions (by 1900 it had been published close to 50 times). It was first incorporated into the Machzor in 1882 in the Romm edition of the Machzor. (Meir, p. 124) Although the title of Teffilah Zakah was well established as late as 1856 this prayer was published under the title Teffilah HaEtkah M’Sefer Hayye Adam and not Teffilah Zakah.

[4] While the exact nusach of Teffilah Zakah does not appear in Hemdat Yamim, much of it does (see notes below for more). There are those who claim that since the teffilah is not the same, thus, Teffilah Zakah doesn’t really come from Hemdat Yamin. This is wrong. First, R. Danzig states it does – so he had no problem with it. Second, even if it is not word for word, and R. Danzig “improved” on the one in Hemdat Yamim, at the very least the basis for it, and much of it does in fact come from Hemdat Yamim. But, it is unsurprising that people would go to great lengths to void Hemdat Yamim as the source for this popular prayer.

[4] The removal of the mention of Hemdat Yamim both here and in other cases (including the discussion below regarding R. Suesskind’s work) is discussed by R. S. Divlitsky, “HaShmotot Mahdirim,” in Taggim, 1 (1969), 76-77 [Ya’ari, in Talmuot Sefer, also mentions the change to the Hayye Adam see under index under Hayye Adam]. For other examples of removal or changes to various editions of the Hayye Adam see R. A.I. Goldroth, “Al HaSefer ‘Hayye Adam’ U’Mechbro,” in Sefer Margoliyos, Jerusalem, 1973, pp. 262-67 esp. n.1. For a discussion about Teffilah Zakah, as well as the Hayye Adam see R. E. Levin & M. I. Blau, “Teffilah Zakah,” in Mishpacha, Kulmus, Tishrei, 2008, 16-19; and Blau’s earlier article, “Al Sefer Hemdat Yamim,” in Kovetz Bet Ahron v’Yisrael, Nissan, 2004 (112), pp. 161-164.

[5] In the Zolikav, 1838, Vilna, 1849; Tchernowitz, 1864; editions the words Hemdat Yamim are cut out and instead, the line reads, “in the works of the AriZal” and then has Teffilah Zakah. This is not the only mention of Hemdat Yamim in Hayye Adam. When discussing (klall 145) what happens if one has a nocturnal emission on Yom Kippur the Hayye Adam again cites to the Hemdat Yamim. In some editions the words “Hemdat Yamim” are missing, in others, it is abbreviated (“ח”ה”), so only those “in the know” will be able to understand.

[6] There is a third concern raised by the former Pupa Rebbi, who notes that as Teffilah Zakah discusses inappropriate sexual behavior, one should avoid saying it as it may lead to improper thoughts about the possible improper behavior. See R. G. Zinner, Neta Gavreil, Hilchot Yom HaKippurim, Jerusalem, 2001, p. 185 n.4. For a list of those who did not say Teffilah Zakah, see Y. Mondshein, Otzar Minhagei Chabad, [Jerusalem], 1995, pp. 200-01. Among other reasons, a similar reason to the Pupa Rebbi is offered by the wife of the Tzemach Tzedek. Additionally, a entirely new reason is given – that Teffilah Zakah is actually a deficient or inadequate prayer. As it is so bad is why, perversly, it has become so popular because, it seems, people like junk. See id. at n.1 in the name of the Sefer Areyeh Sha’ag.
See also, R. T. Ohrenreich, Katseh haMateh, in Mateh Efrahim, no. 619:17 who offers other methods to fulfill the opinions who hold one must do a viduy prior to the onset of Yom Kippur in lieu of Teffilah Zakah.

[7] It was first published in the Warsaw, 1888 edition of the Hayye Adam. R. Finkelstein wrote not only a commentary on Hayye Adam but also on the Matteh Efrahim, Elef HaMogan, first published in Mateh Efrahim HaShalem, Pitrokov, 1908. He also published a collection of commentaries on the Mishna under the title Tosefot Hakhomim, Warsaw, 1916.

[8] See note 4 above. This justification is bizarre. First, as noted above, the Hayye Adam says he is using the Hemdat Yamim – so at the very least he had no problem if it was there. Second, there are entire passages that do appear in Hemdat Yamim. For instance, the Hemdat Yamim has using kissing the sefer Torah to fix various sins (p. 291 of Tzuriel ed. – all citations are to this edition). Or there is an extensive discussion about the inability to fix something that someone stole from someone else (p. 229-36). There is another list of sins that mimic that in Teffilah Zakah (p. 252-57).

[9] This reasoning appears somewhat circular in that how did the prayer get started if one is prohibited from saying it to begin with? Even if one assumes this is merely extending the concept of “im ain neviem, beni neviem hamah,” it doesn’t excuse the R. Danzig from advocating for something that is prohibited.




Two Notes on Censorship and Plagiarism on the Ramban’s Commentary on the Torah

There are a significant number of seforim that are considered “classic” commentaries on the Torah, including, for example, Rashi, Ibn Ezra, Radak, Ralbag and Ramban, et.al. In this post, we shall discuss the Ramban’s commentary on the Torah, as it is also on important work in the history of Hebrew printing.

The first edition, published between 1469-72,[1] in Rome was the first book published in that city and is available online here [it was also reprinted by Mekor with a short introduction by A.M. Habermann]. Over the years the Ramban’s commentary increased in popularity and in commensurate with that popularity many books have been written to further understand this commentary. The most commonly used edition today is the edition by Charles B. Chavel.[2] This edition, published by Mossad HaRav Kook, in two volumes contains a critical edition of the text as well as explanatory notes.

There are two interesting points about the above edition that are perhaps less well-known. The first, a fairly minor point, is the “problem” some apparently have with the fact Mossad HaRav Kook published this edition. In R. Wreschner’s excellent commentary on Masekhet Avodah Zarah, Seder Ya’akov first printed in 1988 (reprinted in 2004, third edition), in his introduction he discusses the problem of censorship (in the “Jewish/Non-Jewish” sense, i.e. removal of mentions of Jesus) in Hebrew books. While he rightfully decries the numerous instance of censorship in the history of the Jewish book, he notes with that of late we have been partially able to rectify the omissions due to censorship.

He singles out various editions and says:

ובעזרת הית”ב החומל על דלותם באורך גלותם, נדפסים היום ספרים כאלו [אם המילים החסרים] מחדש כגון ספר הרמב”ם בהוצ[ת] פראנקל, וכן פרש”י והרמב”ן ורבנו בחיי עה”ת . . . בהוצאת ה.ק. עכ”ל

“With the help of God who has pity on our impoverished state due to the lengthy exile, today we have many such books [with the censorship replaced] anew, for instance the Frankel edition of the Rambam, and also Rashi’s commentary and the Ramban and the Rabbeinu Bachya on the Bible printed by Hey. Kuf.”

What does ה”ק stand for? R. Wreschner a two pages later provides a full page explaining all the abbreviations in his book – this one, however, does not appear there. Of course, this abbreviation is for HaRav Kook, that is, Mossad HaRav Kook. It appears that even fully mentioning the name of this publisher was, in R. Wreschner’s mind, unconscionable, even while bemoaning other forms of censorship. That is, not R. Kook, but a publishing house named after him is also taboo.

What is worthy of noting is that there may actually be a reason not to mention this particular edition – not because of the publisher but of the content. In one of the more interesting introductions, R. Moshe Greenes, in his commentary on the Ramban Karen Peni Moshe, takes the Mossad HaRav Kook edition to task for, in his mind, serious errors in that edition.

R. Greenes opens (after going on a couple of tangents including claiming that then [1988] people were so lazy they can’t get up to look for a sefer, or even turn pages they are so lazy) by praising R. Chavel’s work on the Ramban. Soon after that praise, however, R. Greenes spends the next 8 pages or so pointing out all the inadequacies of R. Chavel’s edition. First, he claims that R. Chavel plagiarized on many occasions from the earlier commentary on the Ramban by R. Mordechai Gimpel, Techelet Mordechai. R. Greenes then accuses R. Chavel of plagiarizing from R. Menachem Zvi Eisenstadt’s edition (recently reprinted both volumes in a single volume but unobtainable by R. Greene at the time).[3]

R. Greenes includes numerous examples of the alleged plagiarisms and even explains that the footnotes with asterisks one can identify with the Techelet Mordechai. These, alleges R. Greenes, were put in only after R. Chavel got the Techelet Mordechai and thus required the insertion into the existing footnotes which necessitated not altering the number scheme and instead we have numbers with asterisks. Whether or not R. Chavel quoted these sources without proper attribution is still up for debate. But, irrespective of whether there was in fact plagiarism, the fact remains that R. Greenes introduction is one of the more unique ones out there.

Notes:
[1] On the date of publication see Moses Marx, “On the Date of Appearance of the First Printed Hebrew Book,” in Alexander Marx Jubilee Volume (New York, 1950) pp. 485-501. For additional information on the Ramban’s Commentary see M.M. Kasher, et al., Sa’arei haElef (Jerusalem, 1985), pp. 90-91, 571.
[2] For bio-bibliographical details about Chavel, see Moshe D. Sherman, Orthodox Judaism in America: A Biographical Dictionary and Sourcebook (Westport; Greenwood, 1996), s.v. “Charles B. Chavel.”
[3] Perush ha-Ramban al ha-Torah (Brooklyn: 5762)




Marc B. Shapiro – Forgery and the Halakhic Process

Forgery and the Halakhic Process
by Marc B. Shapiro


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


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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


אחד מול ארבעה – וההרגשה היא, שהנצחון לצדו של האחד

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

רבנו הכהן הגדול נר ישראל וקדושו גדול הדור ונזרו מרן

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

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

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

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

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


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

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

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


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


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

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

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

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

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


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


Appendix


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[17] See ibid., p. 440.

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

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

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




Rabbi Yehuda Henkin — Opposite of Plagiarism

Rabbi Yehuda Henkin is the author of Shu”T Bnei Banim in four volumes and the commentary Chibah Yeteirah on the Torah. He learned privately with his grandfather, Rabbi Yosef Eliyahu Henkin, and served as Area Rabbi of the Bet Shean Valley in Israel. He now lives in Jerusalem.

Rabbi Henkin has two degrees from Columbia University, and has written extensively in English: Equality Lost–Essays in Torah Commentary, Halacha and Jewish Thought, (Urim Publications); New Interpretations on the Parsha (Ktav); Responsa on Contemporary Jewish Women’s Issues (Ktav); and the forthcoming Understanding Tzniut–Modern Controversies in the Jewish Community (Urim).

This is his first contribution to the Seforim blog.

Opposite of Plagiarism
Rabbi Yehuda Henkin

Plagiarism is a lack of attribution; less common is its opposite, mistaken attribution; rare indeed is the attribution of a defamatory work to the object of the defamation himself! An example of the latter can be found in the entry in the Encyclopedia Judaica [1] concerning my grandfather, R. Yosef Eliyahu Henkin zt”l.

The offending sentence reads: “His published responsa appear in Chaim Bloch’s Even me-Kir Tizak (1953) and his own Perushei Lev Ivra (c. 1925).”[2] But in fact, not only does the pamphlet Even me-Kir Tizak contain no responsa of R. Henkin, it is an unbridled personal attack on him on the part of one who lost a din Torah heard before him. Bloch refused to accept the verdict, and resorted to defamation of the judges. If I recall reading correctly about the affair, he was subsequently put in cherem by the Agudas HaRabbonim.

How did the mix-up in attribution occur? Since the card-catalogue of the Jewish Reading Room of the 42nd Street Library in New York listed Bloch’s pamphlet under R. Henkin, one can surmise that the researcher[3] for the EJ copied the listing without bothering to look up the reference.

Since then the mistake has been copied in Rafael Halperin’s Entziklopedia l’Bet Yisrael and, earlier this year, in the new edition of the EJ (2007). Surely a case of shigegat talmud oleh zadon [4].

Notes:
[1] First published in 1972, vol. 8 column 324. The EJ contains a number of incorrect or partial biographical details; for a comprehensive account see my Equality Lost (Urim), chap. 16. See here for Shnayer Z. Leiman’s review of the NEJ at the Seforim blog.
[2] This confuses two separate works: Perushei Ivra [PDF] (1925) and Lev Ivra [PDF] (1957). Together with Edut leYisrael (1946), all were reprinted in Kitvei haGri”a Henkin, vol. 1 (1981). In addition, Kitvei haGri”a Henkin, vol. 2 (1989) is a collection of his responsa and articles, edited by his son (my father) Avraham Hillel zt”l. (The volumes may or may not be available from Ezras Torah in NY. I have some of vol. 1 and a few more of vol. 2.)
[3] Not to be confused with the rosh yeshiva of the same name, but an otherwise reputable academic scholar.
[4] Avot 4:13.




Critique of the Oz VeHadar Edition of the Arukh HaShulhan

In some of the recent posts we have discussed various new publications of Rabbi Yehiel Mihel Epstein, author of Arukh HaShulhan.

Recently, Makhon Oz VeHadar reprinted the Arukh HaShulhan, and that reprint has been the subject of some harsh criticisms. The critique points to two major problems. First, this edition includes the Piskei Mishnah Berurah which, in the reviewer’s mind, unconscionable. His reasoning is as the Arukh HaShulhan is a “piskei” work in its own right, there is no need to include the work of someone else as it undermines the force of the Arukh HaShulhan’s pesak.

Second, the review highights the biography which is included in the introduction. The reviewer demonstrates that much of this biography comes from two sources, R. Meir Bar-Ilan’s MiVolohzhin l’Yerushalim and R. Maimon’s Sa’are haMeah, neither of which are ever mentioned. R. Lior posits the reason for this exclusion is both of these works are “Zionist” works and thus can not even be cited by some.

Of course, this would not be the first time Oz VeHadar is guilty of such viewpoint censorship. As pointed out previously, another recent Oz VeHadar edition has similar flaws.

You can read the entire article here.