Mekori Q&A – Major Problems with the Kabbalah

Q: Someone asked…

I have heard you mention on several occasions that you object to the kabbalistic idea of there being multiple manifestations of divinity. Do you believe that such ideas are avodah zarah (idolatry)? The kabbalists who employed such language were strict monotheists, and it seems that their depictions amounted to little more than poetic illustrations of the many perceptions of God found within the Tanakh and rabbinic literature. If someone were to affirm such ideas, but still believed in Ein Sof, would you still have a problem with that? Thanks.

A: Thank you for your questions.

I do indeed view the “multiple manifestations of divinity” concept (referred in the kabbalah to as partzufim, or “faces”) as being avodah zarah. The Kabbalists who used this language were not strict monotheists. They were, however, very strict dualists who affirmed a belief in a transcendent god (which they termed Ein Sof, or “The Infinite”) who, prior to the creation, “creates” (or, emanates) another god which is imminent (i.e. finite). This language is explicit in the Zohar literature, especially in its explanation of Bereshit 1:1.

Zohar 1:15a [ד] –

 בְּהַאי רֵאשִׁית בְּרָא הַהוּא סְתִימָא דְּלָא אִתְיְידַע לְהֵיכָלָא דָא
הֵיכָלָא דָא אִקְרֵי אֱלהִים וְרָזָא דָא בְּרֵאשִׁית בָּרָא אֱלהִים

“With this Reishit (beginning), the Concealed One which is not known created (bara) this chamber, and this chamber is called Elohim (God). This is the secret meaning of the verse, ‘Be-Reishit bara Elohim‘ [i.e. ‘Using Reishit, Ein Sof created Elohim’]”

This passage reads Bereshit 1:1 as referring to two gods (powers, potencies, emanations, or what have you), one creating the other. Incidentally, the Gemara on b.Megillah 9a discusses certain changes that were made by the hakhmei ha-sanhedrin when preparing the first Greek translation of the Torah as requested by King Ptolemy. One of the changes they made was to switch the order of the words in their translation from בראשית ברא אלהים to אלהים ברא בראשית in order to avoid the appearance of polytheism since, due to the common style, as enabled by the syntax of the Greek language, the most important word would be placed first. This being the case, the hakhamim were afraid that בראשית, appearing first in the Torah, would be misunderstood as a reference to a deity. As Rashi explains there:

אלהים ברא בראשית. את השמים – שלא יאמר בראשית שם הוא ושתי רשויות הן וראשון ברא את השני

“God created in the beginning – the heavens, etc. [This rewording] was so that no one would say that Bereshit is a name and that there are therefore two gods (reshuyot, “powers”), and the one created the other.”

The commentary of the Tosafot on this passage says that,

הרי בראשית אינו שם כלל אלא בתחילה

“Behold, Bereshit is not a name at all, rather [it means] ‘In the beginning.'”

The Zohar not only adopts the mistaken reading of Bereshit 1:1, but it also purports that it is the “secret” meaning of the original words.

Just in case you think that my reading of the Zohar is uncharitable, the Kisei Eliyahu (written in the 19th century by Eliyahu Suleiman Mani as an introduction to the Zohar and Lurianic Kabbalah) makes a sharp distinction between the Ein Sof – to which he says it is forbidden for us to direct our prayers – and Zeir Anpin (one of the lower manifestations/faces), which is referred to as “our God” and which, together with his celestial wife Nukba, cares for and governs the world on behalf of the Ein Sof.

From page כ”ו – [brackets mine]
kisei-eliyahu-citation-1

“The principle that arises [from the previous section] is that the First Cause – which is called Ein Sof by mouths of all the kabbalists – is the one who emanated, created, formed, and made all things, and he conceals himself within Zeir Anpin. Therefore Zeir Anpin is the ruler of all the created things, and directs them, and nourishes them, and provides for them with the power of Ein Sof that is in him. Therefore, he [i.e. Zeir Anpin] is our God and we are his people, for our souls are a part of him, and he is whom we should worship, etc.”

From page כ”ז – [brackets mine]
kisei-eliyahu-citation-2

“And so you see that all the directing of the world is done through Zeir Anpin, and everything is by the power of Ein Sof, blessed is he, which illumines him like a soul within him For with his power [i.e. the power of Ein Sof] Zeir Anpin performs all of his deeds, and also with all of our calling out to him. All of our prayers are to him [i.e. to Zeir Anpin] because ‘he is our God and we are the people of his pasture, the flock of his hand’ [cf. Tehillim 95:7]. And just as our teacher [Yitzchak Luria] has written (may his merit protect us) in the book Mavo Shaarim, ‘We are his people Israel and all of us are guarded by Zeir and Nukba, and we are their children, as it is written: You are children of HaShem your gods’ [cf. Devarim 14:1, apparently elohim here is being taken by Luria to be plural and a mystical reference to the heavenly couple of Zeir Anpin and Nukba].”

This type of language is unfortunately not rare, and it is highly problematic.

As for the monotheism of those who espoused such ideas, I would say that while they may have strongly professed a strict monotheism, their writings betrayed otherwise. Rav Yihyeh Qafih, z”l refers to this type of profession in his Milhamot HaShem as being no different than when Christians, after explaining all of their ideas about multiplicity within God, the incarnation through a virgin, etc. then proceed to say “but we really just believe in one God” – it is not much more than lip service to a monotheistic idea. In saying this, Rav Qafih quotes directly from a very important passage in the Moreh HaNavokhim of the Rambam which says,

If, however, you have a desire to rise to a higher state, viz., that of reflection, and truly to hold the conviction that God is One and possesses true unity, without admitting plurality or divisibility in any sense whatever, you must understand that God has no essential attribute in any form or in any sense whatever, and that the rejection of corporeality implies the rejection of essential attributes. Those who believe that God is One, and that He has many attributes, declare the unity with their lips, and assume plurality in their thoughts. This is like the doctrine of the Christians, who say that He is one and He is three, and that the three are one. Of the same character is the doctrine of those who say that God is One, but that He has many attributes; and that He with His attributes is One, although they deny corporeality and affirm His most absolute freedom from matter; as if our object were to seek forms of expression, not subjects of belief. For belief is only possible after the apprehension of a thing; it consists in the conviction that the thing apprehended has its existence beyond the mind [in reality] exactly as it is conceived in the mind. If in addition to this we are convinced that the thing cannot be different in any way from what we believe it to be, and that no reasonable argument can be found for the rejection of the belief or for the admission of any deviation from it, then the belief is true. Renounce desires and habits, follow your reason, and study what I am going to say in the chapters which follow on the rejection of the attributes; you will then be fully convinced of what we have said: you will be of those who truly conceive the Unity of God, not of those who utter it with their lips without thought, like men of whom it has been said, “Thou art near in their mouth, and far from their reins” (Jer. 12:2). It is right that a man should belong to that class of men who have a conception of truth and understand it, though they do not speak of it. Thus the pious are advised and addressed, “Commune with your own heart upon your bed and be still. Selah.” (Ps. 4:5)

(I:50 – Friedlander Edition)

True monotheism is necessarily apophatic, and consists in our taking every measure to nullify any corporeality or spatio-temporal attributes from our conception of God. Doing this is essential to “pulling the plug” on even the possibility of idolatry, which a proper monotheistic conception of God necessarily precludes.

The Kabbalah, however, is not only decidedly cataphatic, but its practitioners relate to divinity in very practical and matter-of-fact ways on the basis of such mistaken descriptions of God. I wish that it were an uncommon occurrence, but I regularly hear the kabbalistic rabbis in my own city make bold and unabashed statements such as, “You’re God, I’m God, everything is God. In Judaism we believe that the entire world is just God” (this is a direct quote). The repeated instances of these and similar statements simply disallow me from accepting the thesis of the kabbalistic apologists. To claim that all of the cataphatic statements made in the Zohar and other mystical books are mere “metaphors” or “poetry” to illustrate certain concepts does not stand up to textual scrutiny. Further, it defies the consistent events of history and cannot be maintained with complete intellectual honesty. While I do believe that some kabbalists (e.g. the Ben Ish Hai) worked very hard to distance the kabbalah from this troubling phenomenon, and they should be respected and praised for doing so, the fact is that the majority then did not, and today still do not, do so.

Another important point about the “poetic” language used to express acts of God in the kabbalah is the switch from kingly decrees in the Torah’s creation narrative to very intense and graphic sexual imagery in the narrative of the Zohar. One of the reasons, in my view, that the Torah expressed creation in terms of statements or decrees (i.e. “let there be,” etc.) is because an expression of God’s will in a decree or a statement is one of the least corporeal concepts we can relate to, being readily translated into simile and metaphor. This portrayal was in sharp distinction to nearly every other creation myth in antiquity wherein the world was seen as either being manufactured from the bodies of the gods and goddesses themselves, or as a product of copulation between various divinities. Even the eminent scholar of kabbalah, Gershom Scholem, acknowledges the sexual mythos inherent in the Zoharic depiction of God in the act of creation, describing it as a “re-emergence” and admitting that such imagery is foreign and in direct tension with the Biblical account (cf. On The Mystical Shape of the Godhead, p. 108).

The purpose of not employing such common ancient mythological imagery – even though we do have a principle of torah dibrah ke-lashon benei adam (“the Torah speaks in human terms”) – was, I believe, to immediately divorce the ancient hearer of the Torah from such ideas. That the basis of creation are divine pronouncements or decrees was also explicitly championed by Hazal (cf. Pirkei Avot 5:1ff) – they never made any mention of supposed “divine sexuality.” The kabbalah, however, reintroduced these mythological concepts to the point where kabbalistically-minded individuals truly believe that blessings, etc. come into the world via the supposed unification of male and female forces in a heavenly realm. So, even though Yermiyahu HaNavi (cf. 7:18; 19:4-5; 23:27; 44:17-22, et al) railed against the worship of Baal and the Queen of Heaven (which featured sexual relations with temple prostitutes in order to encourage the deities to do likewise above), husbands and wives are now taught that the mystical purpose of their sexual relations on Friday night is for the supposed unification of the sefirot of Tiferet (also called “Tzadik” and representative in the kabbalah of the male member) and Malkhut (also called “Shekhinah” and representative in the kabbalah of the female genitalia). In effect, we have in many ways returned to our ancient errors through such teachings. “As a dog returns to its vomit, so also does a fool repeat their folly” (Mishlei 26:11). May we be delivered from all such foolishness.

Lastly, and most importantly, the standard for idolatry is much lower than needing to express cataphatic views of God or adopting a form of Panentheism. As Rambam explains in the opening chapters of Hilkhot Avodah Zarah, idolatry – in its most basic form – consists of merely using or appealing to other beings (or perceived beings) as intermediaries between oneself and God – even if one does not believe that such intermediary beings are themselves gods or a part of God (cf. 1:2-3, Yemenite Manuscripts). Rambam is very clear there that professing a strict monotheism does not rescue one from committing serious acts of idolatrous worship.

Thanks for writing. I hope this helped to answer your questions.

Kol tuv,

YB

The Prohibition of Hadash – A Meqori Perspective

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

[Further Note: The position expressed below does not necessitate a functional change in the kashruth of hadash as commonly practiced today. However, it does place an almost identical practical outcome on a newer, and squarely meqori, line of reasoning. This is the intended purpose of what follows.]

What in the world is “hadash”?

The word hadash means “new” and is a reference to “new grain” – in other words, grain that has taken root after the sixteenth day of the Hebrew month of Nisan of one year until after the sixteenth of Nisan of the following year. During that time, the grain which took root is referred to as hadash or “new” and it is forbidden to eat it until after the sixteenth of Nisan.

So, what happens on the sixteenth of Nisan? This is the second day of the week of Pesah when the first of the grain offerings for the year – called the Omer – is offered in the Beyth HaMiqdash, or the Temple. In a time like today when there is no Temple, new grain is forbidden for the entire day of the sixteenth, but when the offering is brought in the time of a Miqdash, new grain becomes permitted directly after the Omer is offered during the day of the sixteenth within Jerusalem and surrounding areas, and after halakhic midday (hassoth) in the outlying areas. After either the Omer is offered or midday or the end of the sixteenth of Nisan, the grain is no longer referred to as hadash (“new”), but yashan (“old”), signifying its new permitted status.

Interestingly enough, the laws related to hadash and yashan stem from a single verse in Wayyiqra 23:14 which says,

TEXT

כג:יד  וְלֶחֶם וְקָלִי וְכַרְמֶל לֹא תֹאכְלוּ, עַד עֶצֶם הַיּוֹם הַזֶּה עַד הֲבִיאֲכֶם, אֶת קָרְבַּן אֱלֹהֵיכֶם:  חֻקַּת עוֹלָם לְדֹרֹתֵיכֶם, בְּכֹל מֹשְׁבֹתֵיכֶם.

TRANSLATION

23:14 And you shall eat neither bread, nor parched grain, nor fresh kernels, until this very day, until you have brought the [omer] offering of your God; it is a statute forever throughout your generations and in all your dwellings.

With such large legal implications stemming from such a short passage, the laws governing the consumption of hadash and yashan seem to be in the category of what the Mishnah in Masekheth Haghiyghah (1:8) refers to as כהררים תלויים בשערה מקרא מועט והלכות מרובות – “Like mountains suspended by a hair, [meaning that in connection to this body of laws there is] little scriptural basis and a multitude of halakhoth.”

This prohibition, however, does not apply to all grains. As with the laws of hallah and hamess, the first mishnah in Masekheth Hallah tells us that the application of the law is the same also with regard to hadash and yashan – namely, that the only grains under the prohibition are the hamesheth miyney daghan (“the five species of grain”) which are listed there as החיטים והשעורים והכוסמין ושיבולת שועל והשיפון. The Rambam in Kitab As-Siraj (his commentary on the mishnayoth) explicitly says – as does the Mishnah and Gemara – that these are exclusively species of Wheat and Barley. The common identification of שיבולת שועל with “oats” is an incorrect identification made by Rashi (cf. b.Pesahiym 35a), as is his identification of several others. This means that oats, rice, and even “buckwheat” (which is actually not “wheat” at all) do not come under the prohibition of hadash at all. As an aside, I always refer to oats by the Modern Hebrew designation קוועקר (pronounced “Keveyker” – i.e. “Quaker [oats]”) and not שיבולת שועל in order to avoid furthering the confusion and misidentification. 

The exact reasoning behind this commandment is unclear. However, In the Guide the Rambam generally places particulars of agricultural commandments under the rubric of opposition to the vast array of idolatrous practices by ancient pagans which were practiced by them in their agriculture. He also usually views them as being important, unlike animal sacrifices, for engendering respect for God and gratitude for His provision for mankind and specifically the Jewish nation. The Sefer HaHiynukh (#303) explains that the offering of the Omer prior to partaking of any grain from the wheat or barley harvest from the previous year is analogous to the requirement to make a berakhah before partaking of food, drink, smell, before performing misswoth, or witnessing certain types of people or phenomena.

Who, When, Where, and How

So, we have gone over the “what” and the “why” – remaining are the questions of “who,” “when,” “where,” and “how.” In other words,

  • Who is obligated to observe the prohibition of hadash, and on whose grain does the prohibition fall?
  • When does this prohibition apply? Just when there is a Beyth HaMiqdash, or in the current era as well?
  • Where does it apply? In the land of Israel, or does it apply outside as well?
  • How does one observe this prohibition in the places and times that it does apply?

The Rambam in Hilkhoth Ma’akhalot Asuroth 10:2-6 specifies that the prohibition of hadash applies in every era, even when there is not a Miqdash. This is the undisputed law from Hazal and it is contested by no one. So, then, this answers the question of “when.” And we will revisit the specific of the Rambam’s opinion a little later on in our discussion.

As for the “who,” it applies to Jews wherever they live whether men or women – and even servants, i.e. everyone who is obligated to the public misswoth associated with the Land. However, there is another aspect of the “who” question which we will also return to in a bit.

However, the central question in our time – and indeed in every era in which these halakhoth were discussed – is the question of “where”: Where does the prohibition of hadash apply? Within Israel or outside of it also?

The Mishnah states in Masekheth Qiydhushiyn (1:9) that

TEXT

א,ט  כל מצוה שאינה תלויה בארץ נוהגת בארץ ובחוצה לארץ וכל מצוה שהיא תלויה בארץ אינה נוהגת אלא בארץ חוץ מן העורלה והכלאיים ורבי אליעזר אומר אף החדש

TRANSLATION

Every commandment which is not dependent on the Land, we conduct ourselves [in accordance with it both] in the Land and outside of the Land. And every commandment that is dependent on the Land, we conduct ourselves [in accordance with it] only in the Land, except for `orlah and kilayyim. And Rebbi Eli`ezer says, even hadash.

Rebbi Eli`ezer includes hadash, along with `orlah and kilayyim, as a prohibition that although it depends on the land it nevertheless is kept even outside of the land. We will examine the position of Rebbi Eli`ezer momentarily.

In Masekheth `Orlah (3:9) it says explicitly that

TEXT

החדש אסור מן התורה בכל מקום

TRANSLATION

Hadash is forbidden from the Torah in every place.

Because of the seemingly explicit nature of this Mishnah, many Rishoniym rule in accordance with the opinion of Rebbi Eli`ezer. However, as we shall see, the opinion of Rebbi Eli`ezer may not be as simple or as straightforward as it seems.

The Unresolved Bavliy

The issue of whether the prohibition of hadash applies everywhere or just in the land of Israel is based on the interpretation of the last phrase in the pasuq (Wayyiqra 23:14) where it says be-khol moshvoteykhem – “in all of your dwelling places.” In other words, what are the halakhic implications of the word be-khol?

In the Talmudh Bavliy, Qiydhushiyn 37a-38b, the discussion of what exactly is implied by the phrase be-khol moshvoteikhem seems to have never been truly resolved, with the hakhamiym being essentially divided. As Rashi comments in his piyrush on the Torah there:

TEXT

בכל משבתיכם: נחלקו בו חכמי ישראל יש שלמדו מכאן שהחדש נוהג בחוצה לארץ ויש אומרים לא בא אלא ללמד שלא נצטוו על החדש אלא לאחר ירושה וישיבה משכבשו וחלקו

TRANSLATION

“The sages of Israel were divided on this matter (i.e. the extent of the halakhah as determined by the interpretation of be-khol moshvoteykhem). There were some that learned [from here] that the [prohibition] of hadash applies outside of the land, and there are some who say that this phrase does not come to teach us anything except that we were not commanded concerning hadash until after taking possession and settling [of the land] after its conquest and division [among the tribes].”

Because of this lack of clarity in the sughyah of the Bavliy, most poseqiym were left to determine their positions on the basis of the Mishnah.

The only direct examination of the position of Rebbi Eli`ezer suggests two different ways of understanding him: [a] he holds that due to be-khol moshvoteikhem the prohibition of hadash applies only in the land, and [b] that he held that it only applied in the land of Israel and was not related to `orlah or kilayyim (this view sees that the Tana Qama in the Mishnah only mentioned `orlah and kilayyim but thereby implied hadash) but was instead governed by the general rule stated by the Mishnah

In other words, his statement in the Mishnah either comes to argue for leniency or stricture. In the end of the discussion, they conclude that Rebbi Eli`ezer’s statement should be seen as an argument for a stricter interpretation as opposed to that of the Tana Qama which excluded hadash.

It should be very carefully noted that the seemingly explicit statement from Masekheth `Orlah cited previously is never brought as a decisive proof in the course of the sughyah in Qiydhushiyn with regard to hadash. It stands to reason that if the Mishnah in `Orlah was supposed to be understood as constituting an explicit and incontestable prohibition of all hadash everywhere in the world that it would have been brought in this discussion. Had they done so, it seems that they would not have had anything much to discuss.

Either way, as noted by the Taz on Shulhan `Arukh, Yoreh De`ah 293:4, the Gemara does not conclude in a very definitive way in favor of the view that the halakhah is definitely like Rebbi Eli`ezer. In fact, it appears that even in the generation of Rav Ashey there was a difference of opinion as to whether the prohibition of hadash outside of Israel was de-rabbanan or a de-oraytha, as it states in b.Menahoth 68b.

So, it seems that the Talmudh Bavliy holds that there is a prohibition of hadash even outside the land, but many particulars seem to simply be left un-examined. For instance, does this apply to Jewish grain outside of Israel, or does it apply to non-Jewish grain as well? What about grain that has been exported to lands outside of Israel – does this have the prohibition of hadash as well?

The Simple and Succinct Talmudh Yerushalmiy

Interestingly enough, the statements of Rebbi Eli`ezer in the Mishnah of both Qiydhushiyn and `Orlah are met with the exact same (i.e. uniform) explanation in the Talmudh Yerushalmiy. For those who may not know, there is no Gemara in the Talmudh Bavliy for any masekhta in the first order of the Mishnah, except for Masekheth Berakhoth. For this reason, `Orlah is simply left without commentary by the Persian hakhamiym. This is mostly due to the fact that such laws were agricultural and tied directly to the land of Israel. In Babylon they simply had little or no relevance.

In `Orlah 20a of the Talmudh Yerushalmiy it comments on the statement of the Mishnah that החדש אסור מן התורה בכל מקום by stating the Mishnah from Qiydhushiyn, but qualifying it as follows

TEXT

החדש אסור מן התורה בכל מקום:  מתניתא דרבי ליעזר דתנינן תמן כל מצוה שאינה תלויה בארץ נוהגת בארץ ובחוצה לארץ וכל [מצוה] שהיא תלויה בארץ אינה נוהגת אלא בארץ חוץ מן הערלה ומן הכלאים.  רבי ליעזר אומר אף החדש.  מה טעמא דרבי ליעזר (ויקרא כג) בכל מושבותיכם בכל מקום בין בארץ בין בחוצה לארץ.  מה מקיימין רבנין טעמא דרבי ליעזר בכל מושבותיכם בחדש שכן יצא בחוץ

TRANSLATION

Hadash is forbidden from the Torah in every place. The Mishnah of Rebbi Li`ezer (i.e. a shorter form of “Eli`ezer” used in the Yerushalmiy) that we learned there: “Every commandment which is not dependent on the Land, we conduct ourselves [in accordance with it both] in the Land and outside of the Land. And every commandment that is dependent on the Land, we conduct ourselves [in accordance with it] only in the Land, except for `orlah and for kilayyim. And Rebbi Li`ezer says, even hadash.” What is the reason [for the statement] of Rebbi Li`ezer? [It is because of the phrase] Be-khol moshvoteykhem, meaning in every place whether in the land or outside of the land. What did the sages realize was the reason [for the statement] of Rebbi Li`ezer? Be-khol moshvoteykhem, meaning that [the prohibition applies] even to hadash that has traveled (i.e. has been carried; exported) outside the land.

Both the Peney Mosheh and the Qorban `Eydhah on the Yerushalmiy affirm that the Yerushalmiy meant by this explanation to exclude grain grown outside of Israel itself, and that Rebbi Eli`ezer’s statement was intended to prohibit only grain grown within Israel that was exported to outlying areas or surrounding countries. This interpretation actually fits quite nicely within the seeming vague resolution of the Bavliy. Being that the vast majority of farmers outside the land of Israel were non-Jews in the Talmudic era, it makes sense that this limitation was put on the prohibition of hadash.

The Position of the Ba”H and Non-Jewish Grain

But what about in later eras when Jews were allowed to own land and farm it in various lands of the Diaspora? Does hadash apply to Jewish grain grown outside of Israel?

First of all, let’s consider the common reasoning given for why the majority of orthodox Jews do not observe the prohibition of hadash today. In fact, it is almost completely ignored. There are two reasons: First is the halakhic position of the Ba”H (the Bayith Hadash) written by Rav Yoel Sirkis z”l on the Tur, and the second – referenced mainly by Hasidic Jews – is a supposed dream of Israel Baal Shem wherein he supposedly received a permissive answer to the question of the halakhic status of hadash.

The second of these reasons is ridiculous and is not worthy of wasted breath. The Torah is not in Heaven (i.e. lo ba-shamayim hiy) and the hakhamiym ruled in the Talmud that דברי חלומות לא מעלין ולא מורידין – “the words of dreams neither elevate a matter or bring it down,” meaning that we do not take the contents of dreams into account as regards halakhic decisions. This is true even for a naviy emeth – a “true prophet” – so how much more so for anyone else, especially a dubious character like the supposed founder of the Hasidism.

As for the position of the Ba”H, it is a bit complex and enlists many different aspects found in the sefariym of his predecessors. His position is basically that since he saw that all of the rabbis of his locale (sixteenth century Poland) – including the more pre-eminent ones among his teachers – completely ignored the prohibition of hadash, there must have been a cogent halakhic reason and therefore he sought a legal justification of such a practice. Citing Rishoniym who held that hadash never applies in the fields of grain which were grown by non-Jews, he brings evidence from several places in the Gemara that the `Omer offering was not able to be offered from grain grown in the fields of non-Jews. He extrapolated from this that grain unsuitable for the `Omer offering must likewise not be subject to the prohibition of hadash.

The view of the Ba”H was harshly criticized by many, most notably the Gr”a and the Sifthey Kohen on the Shulhan `Arukh. The Shulhan `Arukh itself rules that the laws of hadash apply even to grain grown in the fields of non-Jews. However, Rav Qaro likely wrote this because he read the words of the Rambam in Hilkhoth Ma’akhaloth Asuroth chapter 10 as referring to all grain everywhere. However, this – like his reading of the Rambam with regard to `eruviyn – may possibly be an overly strict reading. Nowhere does the Rambam specify in the Mishneh Torah that the grain under discussion is of either Jews or non-Jews.

The Practice of Yemen and the Rambam

Mori Yusef Qafih z”l writes in his piyrush on the Rambam there that while many people understand the position of the Ba”H to be a hiydhush and a da`ath yahiydh (a singularly novel halakhic position), this is actually not the case as it was the practice in Yemen from early times to take a similar position to the Ba”H. In Yemen, the practice was not to apply the prohibition of hadash to the grain of non-Jews. He also writes that while he was growing up and learning in Yemen that he heard from hakhamiym there that it was very possible that this was in actuality the position of the Rambam himself, and he brings various indications for this assertion from within the text of the Mishneh Torah itself.

Rav Ratson Arussi, chief rabbi of Kiryat Ono, rules that this is exactly the position of the Rambam with regard to hadash and the grain of non-Jews. He writes so specifically in a teshuvah.

TEXT

לק”י

כבוד הרב שלום וברכה

רציתי לדעת מה הדין ביום בנושא של תבואה חדשה לדעת הרמב”ם

איזה תבואה אסורה רק בשדה של יהודי? בארץ או גם בחו”ל? האם מותר “להעלים עין” ולא לשלוח משגיחים וכו’ לחו”ל על מנת לפטור את החדש בדרך של ספק ספיקא והאם בכלל אנו צאן הרמב”ם נוקטים בשיטת ספק ספיקא ואם כן מהם התנאים לסברה שכזאת

יורנו הרב וה’ יסייעהו בדבר תורתו

גלעד

תשובה: רק תבואת חו”ל של יהודי – אסורה. אבל תבואת חו”ל של גוי – אינה אסורה

TRANSLATION

Peace and blessing to his honor, the Rav.

I would like to know what is the proper ruling with regard to the new grain today in opinion of the Rambam.

Which grain is forbidden, only that which is grown in the field of a Jew? In the land or outside of it? Is it permitted to “turn a blind eye” and to purposefully not send kashruth inspectors to areas outside of Israel [where grain is grown] etc. and to render it permissible in any case through use of a safeq-safeqa? And can we who are included in the flock of the Rambam adopt the halakhic methodology of such a safeq-safeqa, and if so then what are the conditions for being able to use a line of reasoning such as this?

Guide us, our teacher, and may HaShem give you assistance in the matters of his Torah,

Gil`adh

Response: Only the [new] grain grown outside of Israel by a Jew is forbidden, but the [new] grain grown outside of Israel by a non-Jew is not forbidden.

Summing It All Up

So, it would seem from the sources that there is indeed a prohibition on hadash today, and that it applies even outside of the land of Israel. However, it only properly applies to grain grown by or in the fields specifically owned by Jews. Inside the land, however, it would seem that all grain – whether grown by Jews or non-Jews – is subject to the prohibition of hadash. This appears to be the best and most reasonable interpretation of both Talmudhiym overall, as well as the nuanced position of the Rambam himself.

Practical Considerations and Outcomes

And this brings us to the practical questions of “how”.

In Israel, the Rabbanut and other agencies are already very careful to monitor all grain grown in the land and to make sure that all products sold are, in fact, yashan and not hadash. However, while many Jews avoid imported products, specifically from America, due to concerns of hadash, it seems that there is really no halakhic concern in these instances and those living in Israel may eat of imported products made of wheat and barley grown by non-Jews from outside of Israel.

In America, the only possible concern for yashan would be the imported Israeli products which, as we just said, really present no concern (as long as they are certified kosher) since the Rabbanut and certifying agencies already monitor very closely for hadashThe same goes for most other countries throughout the world.

Europe is mostly the same, however I do remember hearing that Israel exports a lot of durum wheat used for semolina flour to some places along the coast of the Mediterranean. This type of flour is used mainly for noodles, so those in Europe may want to check into the source of flour for these products to make especially sure. Other than this, however, there does not seem to be any real concern for hadash.

I hope that this was clear, insightful, and helpful. I plan to draft a more concise Hebrew version of my understanding with regard to this important halakhic topic, so be on the lookout for that in the near future, be-`ezrath HaShem yithborakh.

Kol tuv,

YB

One Story or Two? – Rosh HaShanah and Breishit 1 & 2

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

The Discussion Of Creation On Rosh HaShanah

In the Talmud Bavli (Rosh HaShanah 11a-b) there is a mahloket between Rabbi Eliezer and Rabbi Yehoshua regarding whether the creation of the world took place in the month of Tishrei or the month of Nissan. While Rabbi Eliezer maintains that the former position, Rabbi Yehoshua is adamant of the later. While both views eventually took on their own respective midrashic implications, only the view of Rabbi Eliezer was accepted for halakhic purposes (cf. b.Rosh HaShanah 27b).

The Baal HaTurim, commenting on the first pasuk of Sefer Breishit, refers to the well-known fact that the letters of בראשית can be rearranged to spell א’ בתשרי (“the first of [the month of] Tishrei”) which would cause the opening phrase of the Torah to be homiletically read as, א’ בתשרי ברא אלוקים – “On the first of Tishrei Elohim created [the heavens and the earth].” This is seen – at least by the author of the Baal HaTurim, Yaakov ben Asher – as decisive proof Rabbi Eliezer’s position on the matter.

As is pointed out by several Talmudic commentators, the actual discussion between these two Tannaim is not when the world was created, but specifically when man – the ultimate purpose of the world – was created (cf. Tosafot on b.Rosh HaShanah 8a, and the Ran on the Rif to b.Rosh HaShanah 3a). In other contexts it is related explicitly that Adam was created on the day of Rosh HaShanah itself (cf. Vayikra Rabbah 29:1, and implied in Pirkei D’Rebbi Eliezer, chapter 8). Thus, both the creation of the world and the creation of Adam Ha-Rishon have been traditional subjects (among others) which make up the study and spirituality of Rosh HaShanah.

Breishit 1-2: Two Creation Stories?

A discussion of creation and the origins of man necessarily brings one to the first two chapters of Parashat Breishit. However, due to the yearly cycle of sidrot both ending and beginning anew within the same festival week on Shemini Atseret (popularly “Simhat Torah”), it rarely – if ever – is apportioned the same one-week period for its study as is the case with the other portions of the Torah throughout the year. Therefore, it makes sense to take the thematic opportunity in the month of Elul to take a closer look at the account of creation found in the opening chapters of the Humash.

As is well-known, the narratives contained in the first two chapters of Sefer Breishit tell very different stories, each seeming to have a respective account of “creation.” This unfortunately has led many to err and assume that these chapters represent two ancient Mesopotamian accounts of the creation of the world which were placed at the beginning of the Torah by a “redactor” who, being religiously unable to decide between them, ultimately settled on including them both. This position has grown to be almost standard in most academic circles of critical Biblical scholarship. However, I would like to suggest that this reading of the text is premature. The claims of redaction and the presence of separate contradictory stories are made in an attempt to account for the various glaring differences between them. However, a question not often considered is: How different do two stories need to be before we must conclude that they were never meant to be the same story? The common position of critical Biblical scholarship – and particularly the Documentary Hypothesis – asserts that Breishit 1-2 were at one time two narrative with conflicting details, but once the Hebrew of the Biblical text is properly examined and understood in context – being taken at face value – it can be clearly seen that these two stories are actually one continuous narrative speaking about different things. Further, when we note certain general findings in the field of anthropology, we find that the cohesive truth of the Torah comes into uncanny focus.

The Rambam’s Use Of Anthropology

It is often wondered whether there is validity to using anthropology to aid our understanding of the Torah. However, the use of relevant cultural, scientific, and historical information is the hallmark of many commentators, from Rav Saadia Gaon to Rashi and many others throughout the ages of Jewish history.

One of the most well-known usages of anthropological texts amongst the Rishonim is found in the Guide to the Perplexed of the Rambam. He makes heavy reference to the culture of the “Sabeans” whom he understood as being a people extant during the lifetime of Avraham and the Avot. Additionally, he refers extensively to a work cited as the “Book of Nabatean Agriculture” which Rambam presents as giving a direct look into the practices of the ancient Canaanite societies of Erets Yisrael (cf. Guide 3:29, et al).

Using these tools, the Rambam comes to many conclusions about the meaning and intent of certain mitsvot that are unique and which are not necessarily in line with the views of his predecessors. He was well aware that as the world progresses, the knowledge of history progresses and it is therefore not only possible but important to use what is available to us in order to better understand the Torah.

Examples of such conclusions, based directly on the “Book of Nabatean Agriculture,” and are in response to ancient pagan agricultural practices. In 3:37 of the Guide, the Rambam explains that the laws of orlah (not eating or benefiting from the fruit of a newly planted tree in its first three years – cf. Vayikra 19:23-25) are to prevent a certain act of witchcraft, wherein the “Sabeans” (an ancient people that the Rambam is convinced by his cultural-anthropological studies are contemporaries of Avraham) put a certain rotted matter around the base of a tree, accompanied by some incantations, as a way to ensure growth. He also explains there that the laws against kilayim (planting mixed seeds in a field) and the cross-grafting of fruit trees stem from similar idolatrous concerns. Throughout the Guide, but especially in the third volume, the Rambam describes the ancient context and cultures of the Biblical world through his research into the pagan and pantheistic cultures of the time. In his view, there was simply no other way to study and obtain an understanding of the practical reasons behind the legal pronouncements of the Torah.

Breishit 1-2: How Are They Different?

While there are many differences between the First Narrative (henceforth FN) and Second Narrative (henceforth SN) of the creation account, I will attempt to highlight those generally viewed as the most significant.

  1. FN recounts a creation of heaven and earth in six days (1:1ff, 2:1-2), while SN states that they were created in a single day (2:4).
  2. FN begins with “the beginning” (1:1) in a seemingly ultimate sense while SN begins with the world already created (2:4-5).
  3. FN mentions the creation of light, day, and night (1:3-5), the sky or atmosphere (1:6-8), land and seas (1:9-10), sun, moon, and stars (1:14-18), fish and sea life (1:20-22) – SN mentions none of them.
  4. SN mentions a “garden” in a place named Eden (2:8,10,15), four rivers (i.e. Pishon, Gihon, Hidekel, and Farat), specific outlying geographical locations (i.e. Havilah, Gihon, Kush, Asshur), and precious metals and stones that are indigenous to the region of Havilah (2:10-14) – FN mentions none of them.
  5. FN presents a chronology wherein vegetation is created first (1:11-12), then animals (1:24-25), and then mankind (1:26-27), whereas the chronology of SN has first the formation of man (2:7-8), then vegetation (2:9), and then animals (2:19).
  6. In FN man and woman appear to be created simultaneously (1:26-17) and both of them only after plants and animals have already been created. In SN man is created first (2:7), then plants (2:8-9), then animals (2:19-20), and then woman (2:21-25).

It is also important to note some key differences in Hebrew terminology between FN and SN.  The terminology is listed below and then defined in the following section.

  1. Creation – In Breishit 1-2 the operative terms of “creation” are bara (ברא), asah (עשה), and yatsar (יצר). FN uses only the bara and asah, while SN uses only yatsar (with a single couplet usage of bara and asah in the introductory statement of 2:4).
  2. Earth – The terminology used for “earth” are more diverse: arets (ארץ), adamah (אדמה), and gan (גן). With a single exception (1:25 – adamah is used as an Adjectival Noun to describe a certain type of animal), FN uses only arets, while SN uses mostly a combination of adamah and gan (the exceptions being the use of arets in the introductory statement in 2:4-2:5 and in reference to certain outlying regions in 2:11-13).
  3. God – In reference to “God,” FN exclusively uses Elohim (א-להים), while SN uses HaShem-Elohim (הוי”ה א-להים).

From the above list of narrative and linguistic discrepancies between the two accounts of Breishit it should become clear that the differences between them are neither subtle or nuanced.  Instead, there is a clear and fundamental diversion of SN from FN, all the while maintaining central themes between them – the Creator, the world, and man.

Lashon HaKodesh: No Synonyms

When these two accounts are read – especially when in English translation – it is often taken for granted that words used in reference to creation, earth, and God are either the same or similar. Even among those who are aware of the essential differences in Hebrew terminology (some of which are listed above), there is a tendency to see these terms as synonymous with one another. It is perhaps from this simplistic error, more than anything else, that the difficulty and confusion among critical Biblical scholars arises in attempting to interpret FN and SN.

The assumption of synonymous language is only made worse when the difference in Hebrew terminology is ascribed to multiple authors, each of which are supposedly using their own unique literary style to relate the same story in contradictory fashion – an a priori assumption which is based on similar unnecessary a priori ontological commitments to multiple authors. Noting such abrupt differences in almost every aspect, a student of the Biblical text must ask themselves at what point it must be concluded that the two narratives are not telling the same story in contradictory fashion, but they are instead telling two different stories.

The Rambam in the Guide dedicates the majority of the first section to making distinctions between various words and phrases used in Biblical Hebrew which appear to be synonyms but in reality are not – their respective nuances being essential for a proper understanding of both the Tanakh and, by extension, the incorporeality and unity of HaShem. There are places in Hazal which either list different Biblical terms used to refer to the same concept or which comment on the use of two words used in similar passages of the Torah. However, the overwhelming consensus among Torah scholars is that although lashon ha-kodesh (i.e. Hebrew used in the Tanakh) contains general synonyms, it does not contain any true synonyms (cf. Malbim, Mevo HaMahberet and Yair Or). While being generally similar in meaning and scope, words in lashon ha-kodesh always maintain a unique meaning and purpose which makes them wholly distinct from all other similar terms.

For a Semitic language such as Hebrew, one which likely began as purely logographic (each symbol representing a word or idea) and eventually – like many Ancient Near Eastern languages – became a purely phonetic language, it makes sense that every word is unique and has no true synonyms, even if it has a relative synonym. Due to the tri-radical system of roots used by Hebrew – which anciently were a combination of [usually] three logograms – many times words which appear to be generally synonymous are in actuality vastly different from one another.

The following is a list of basic definitions of the Hebrew terms listed above:

[A] Arets (ארץ) – A general term for earth or land, which includes all strata within in it and what is on the surface (cf. Malbim, Yair Or – Ot Alef, 42).

[B] Adamah (אדמה) – Denotes “soil” and is used to refer to the top layers of earth (cf. Malbim, Ibid.)

[C] Bara (ברא) – Creation of something from nothing (i.e. yesh me-ayin יש מאין); not necessarily absolute nothingness, but rather the creation of a thing which did not exist prior (cf. Ibn Ezra on Breishit 1:1, Rambam, Guide 2:30, and Malbim, Yair Or, 10:9).

[D] Asah (עשה) – According to some commentators (cf. Rambam, ibid.), asah is a general term for action which can take on the nuances of other verbs used in conjunction with it (essentially equating it in FN with bara). According to others (cf. Malbim, ibid.), it specifically communicates the idea of completing something.

[E] Yatsar (יצר) – The verb form of the word tsurah (צורה), meaning “form” (cf. Malbim, ibid.), it denotes the application of a physical attribute (i.e. “accident”) to an already existing substance (cf. Rambam, ibid.). In other words, the creation or modification of something which existed previously.

[F] Elohim (א-להים) – Used in reference to God when performing strict justice, i.e. calculating and inflexible (cf. Breishit Rabbah 12:15 & 14:1, Shemot Rabbah 30:13, and Pesikta Rabbati 40. See also Rashi on Breishit 1:1). It is also the plural of eloah (אלוה) which is the general term for “god” or “deity,” being coupled with singular verbs when used in reference to God – the plural being what the grammarians call the pluralis excellentiae (“plural of excellence”) or pluralis majestatis (“plural of majesty” – often referred to as the “Royal We”), of which there are many examples in the Tanakh, even in reference to great human figures or those occupying positions of political power (cf. Rav Saadia Gaon, HaNivhar Emunot Ve-Deot II:6). The word underlying both elohim and eloah is el (אל) which can mean deity, but also “power” or “judge.” As such, term can even be used to refer to human judges or courts (cf. Shemot 21:6, Tehilim 82:1, et al).

[G] HaShem (הוי”ה) – The Four-Letter Name, this name of God denotes principally the attribute of mercy (cf. Ibid.). Known also as the Shem Ha-Meforash, this name most aptly expresses the personality and actions of the Creator (cf. Rambam, Guide 1:61) in relation to mankind, and especially Am Yisrael (cf. Shemot 6:1-2, and see Rashi there).

Macro & Micro: Putting It All Together

Based on the above-listed definitions, differences in general context (also listed above), as well as many other details which are too many to enumerate here, it should be clearly seen that is indeed possible to propose an informed and non-forced reading of FN and SN that shows them to be continuous not contradictory at all.

In basic terms, FN (Breishit 1:1-2:3) should be understood to giving a macro perspective – the overall creation of the world (i.e. every location in the world) – and SN  (Breishit 2:4-2:25) to be presenting a micro perspective – the development of Adam and Havah in the garden (i.e. in a specific location in the world, namely Eden). In other words, it might be said that FN is dealing with physical cosmology while SN is dealing with anthropology.

In this vein, the following understanding can be easily proposed:

FN begins with a generic declaration of the creation by God (1:1) and then proceeds to describe a planet which is tohu va-vohu (1:2) – “astonishingly empty” according to Rashi and “completely covered with deep waters like an ocean” according to Rav Saadia Gaon – with the unrealized potential for organic life. After this brief introduction, we see the stages of development from the perspective of the entire planet (which may or may not be intended to be sequential) in a series of separations – light and darkness, clouds and seas, water and dry land, etc. – and a series of generations – vegetation, fish, birds, animals, etc. In the end, we see the creation of mankind, creating them generically as “male and female” with a divinely-appointed purpose to rule the earth (1:26-28).

SN begins with a declaration acknowledging the events of FN, but then proceeds to announce the presentation of the toledot (“outcomes” or “recorded genealogy”) of the creation of heaven and earth (2:4). It begins with noting that no vegetation had sprouted, but uses a curious modifying noun “of the field” (2:5, ha-sadeh) which denotes crops which are cultivated rather than just general flora. In fact, the text of SN explicitly attributes the lack of such cultivated crops being due to that fact of there being “no man to work the soil” (2:5). Man is “formed” (2:7, vayyitser…et ha-adam, from yatsar) – meaning that there was a pre-existing creature known as man that was imbued with a divinely-bestowed faculty that enabled human spirituality, rationality, and intelligence (cf. Ramban on Breishit 2:7, Sforno on Breishit 1:26, and Rambam, Guide 1:7). After “the” man (ha-adam in 2:7 – note the definite article) is formed, he is placed in a garden (2:8, 2:15) which has fruit trees (2:9) and rivers flowing from it, which flow to neighboring lands which are deemed good for mining various metals and stones (2:10-14). The intention of the man being placed there is to engage it agriculturally (2:15). Shortly after this, various animals “of the field” (2:19-20, see above explanation) are “formed” – i.e., “domesticated” (cf. Rashi and Rav Saadia Gaon on 2:19) – and then given names by the man (2:20), which in an Ancient Near Eastern context implies ownership. A woman suitable for the man’s new pursuits is provided for him (2:21-25) and the couple becomes the model for future marital relationships among mankind (2:24).

The basic components of both FN and SN may also be seen as follows:

FN 1:1-2:3 SN 2:4-2:25
Creation of the human species in general Specific human couple being “formed” (i.e. modified) into spiritual and fully rational beings
Creation of the world and what it contains (i.e. a general perspective) Formation of a “garden” (i.e. agricultural plot) in a specific location, complete with cultivated crops and domesticated animals
God is referred to by Elohim, creating definite boundaries and physical “laws” (i.e. the natural order) as applies to the universe as a physical entity – i.e. the raw natural order God is referred to by HaShem Elohim, creating a defined system of human society, industry, and relationships (HaShem being a name signifying self-expression and covenant-devotion to human beings) – i.e. the raw natural order plus the imposition of man’s rational faculty on that order

Far from being contradictory, FN and SN constitute the Torah’s expression of two different and important beginnings – general and specific – each account complimenting the other.

The Neolithic Revolution

According to modern anthropology, humans have undergone several stages of development. The longest stage of human development lasted from their inception (estimated around 2.6 million years ago) until around 5,000-10,000 years ago, known generally as the Paleolithic and Mesolithic eras. During this time, humans were hunter-gatherers that were basically nomadic and lived in groups, very much akin to packs of animals. They had no developed language, only primitive superstition as their religion (if any), and no technology other than primitive implements made of stone, bone, and wood. They ate only what they could fish, hunt, gather from the wild, or scavenge. Human life continued this way until the time which anthropologists call the Neolithic Revolution.

General estimates are proposed for its subtle beginnings (i.e 10-15,000 years ago), but generally date its most complex and punctuated phase (a sort of “boom”) in the region of Mesopotamia (and particularly in region of Sumer in southern Mesopotamia, the site of modern-day Iraq) between 5,000 and 7,000 years ago. This estimate works well if we understand the current Jewish calendar as being representative of the record from mankind in the “Garden” (retrojected at some point when calendrical years began to be tracked by human society) rather than being representative of the complete span of time since the initial creation – which is dated at roughly 13.5 billion years ago.

Thus, Breishit 2:4-2:25 seems to record (not in the technical sense) the evolution of Adam and his mate, Havah, and their sanctification by HaShem from the primitive, brutish (and one could even say that in many ways it was animalistic) hunter-gatherer mode of life, to a more refined pair of the human species which engaged in cultivation of plants for harvest, domestication of fowl and livestock, the systematic use of language, spirituality, monogamy, and other positive developments of the Neolithic Revolution. These developments set the stage for the eventual building of civilizations and societies (cf. Breishit 3-4), which in turn set the stage for the very purpose of the world: Israel and the observance of the Torah (cf. Rashi on Breishit 1:1).

The ultimate goal of this divine bestowal and direction of human development is to refine a person in his relationship with God and with his fellow man (cf. Rambam, Guide 3:27), leading to the merit of Olam HaBa.

Rosh HaShanah, Teshuvah, & Humanity

“Even though the sounding of the shofar on Rosh HaShanah is a decree of the pasuk, it has in it an allusion [to something deeper], as if to say, ‘Awake, awake you sleepers from your sleep! And arise slumberers from you slumber! Search your deeds, return in teshuvah, and remember your Creator…”

– Rambam, Misneh TorahHilkhot Teshuvah 3:4

The connection between the theme of teshuvah and creation on Rosh HaShanah is that we, as the Jewish Nation, are called by the kol shofar to return to our essential God-given human distinctions and fully acknowledge the Source of all existence, HaKadosh Barukh Hu. The Torah reminds us of our “animal” potential and the need to re-dedicate ourselves to the ways in which we are different than the animalistic cultures which bustle around us (cf. Rambam, Pirush HaMishnayot – Intro to Sanhedrin 10:1) while we labor in the “garden” of the Torah and the mitsvot (cf. Targum Yonatan ben Uziel on Breishit 2:15). In other words, we are not supposed to be merely “humans” but “Jews” (cf. b.Keritot 6b, b.Bava Metsia 114b, and Maharal mi-Prag, Tiferet Yisrael, chapter 1).

Breishit 1-2 give us a deep explanation of our origins. It tells us that without that which we share in common with the Divine, we are merely an animal living in the outward form of a human body, but not truly people. We would all do well to remember the fate of Nevukhadhnetsar in Sefer Daniel (chapter 4) when HaShem removed from him his Tselem Elohim (“Divine Image”) for a period of seven years. The passage says that the lesson for Nevukhadhnetsar in being made to live like an animal was so that he would “know that the Most High rules in the kingdom of man, and to whomever He wills, He gives it.” (ibid. 4:29)

When hearing the tekiot ha-shofar on Rosh HaShanah, may we all awaken from the sleep of complacency, shake off the slumber of exile, consider our ways, return to the Torah of HaShem our Creator, and recognize that there is only One King who should rule absolutely in kingdoms of mankind.

Hotamo shel HaKadosh Barukh Hu emet – The seal of the Holy One Blessed is He is truth.” (b.Shabbat 55a)

“Gemar Be-Hathimah Tovah! – Finish with a good seal!”

 

There Are No Three Weeks – A Mekori Perspective

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

The Three Weeks

Today is the 18th day of Tammuz, and most Jews are fasting from sun-up until sundown. Since the 17th, the usual day for the fast, was yesterday – on Shabbat, when it is forbidden to fast – the observance of Tzom Tammuz was delayed until today. As many are aware, Tzom Tammuz begins a period of time that many refer to as “The Three Weeks” and which lasts until Tisha Be-Av (the ninth of the month of Av), a day that traditionally commemorates the destruction of both Temples, as well as a host of other tragedies which occurred in Jewish history.

Although the observance of this period of time is understood by the Haredi-Hasidic world – and even perhaps the majority of mainstream orthodox and Modern Orthodox communities – as an obvious fact of Jewish law, the truth is that it is no such thing. Like many observances that developed over the course of the current long exile, the observances of the “Three Weeks” have no basis in the words of Hazal and amount to little more than a bundle of para-halakhic customs which have led, in certain cases, to the violation of actual halakhot.

Stemming from ascetic Ashkenazic sentiments, most Jews refrain from shaving, trimming, haircuts, listening to music, purchasing new items (especially clothing), swimming, conducting weddings, and some even refrain from bathing during this time (although most who do so usually only abstain specifically between rosh hodesh Av and Tisha be-Av, referred to as “The Nine Days,” as will be explained below).

The “Three Weeks” are also known as bein ha-metzarim (“between the narrows”), an designation that arises from an alternate explanation of Eikhah 1:3, “…all of her pursuers overtook her within the straits (bein ha-metzarim)” in Midrash Eikhah Rabbah (1:29). “Within the straits,” says the Midrash, are the days between the 17th of Tammuz and the 9th of Av. But it wasn’t until the 14th century publication of Sefer HaMinhagim by Austro-Hungarian rabbi, Isaac Mi-Tirna (or, Tyrnau), that the practices of the “Three Weeks” were recorded. This work was then later cited by the Rema in the Shulhan Arukh (Orah Hayim 551:1,2,4, and 10), along with a similar work by the Maharil, as the basis of the European customs observed during this time.

An extended period of abstention from haircuts, shaving, trimming the beard, bathing, and laundering clothes, ends up blatantly impinging on proper kevod Shabbat. During this time, many Haredi/Hasidic Jews enter into Shabbat unkempt, unpresentable, and emitting a foul odor, the result of refusing to properly bathe. Many Ashkenazim have the custom on the Shabbat directly preceding Tisha Be-Av (called Shabbat Hazon) to not wear Shabbath clothes at all, but weekday clothes that have not even been freshly laundered! Aside from these flagrant violations of decorum in halakhah, a mourning period for such an extended period of time is simply too much for people to reasonably handle, an assessment which is not my own, as will be seen below.

The Nine Days

Nested within the “Three Weeks” are “The Nine Days,” the 1st to the 9th day of Av, which is the actual time of mourning according to Hazal, the Geonim, and all of the early Rishonim. But what forms of mourning are actually required by halakhah? Is the mekori position simply to abide by these strictures for only nine days as opposed to twenty-one? Is everything that the Haredi-Hasidic world forbids actually forbidden? The answer to these questions is “no.”

Hazal were not ascetics. In fact, they actively opposed asceticism as “sinful” and out of balance – and this is why there was no original practice of “Three Weeks,” despite the statement of the Midrash. Anyone who wants to read further can look into the discussion in the Gemara as to why the Nazir is required to bring a sin-offering (cf. b.Ta’anit 11a; Rambam, Mishneh Torah, Hilkhot De’ot 3; Rambam, Shemoneh Perakim 4). Their stance is clear, instructive, and eye-opening.

The Rambam summarizes the observance of the “Nine Days” – in three short halakhot – as follows:

TEXT (Mishneh Torah, Hilkhot Ta’aniyot 5:6-8)

משייכנס אב ממעטין בשמחה ושבת שחל תשעה באב להיות בתוכה אסור לספר ולכבס וללבוש כלי מגוהץ אפילו כלי פשתן עד שיעבור התענית ואפילו לכבס ולהניח לאחר התענית אסור וכבר נהגו ישראל שלא לאכול בשר בשבת זו ולא ייכנסו למרחץ עד שיעבור התענית ויש מקומות שנהגו לבטל השחיטה מראש החודש עד התענית

תשעה באב לילו כיומו לכל דבר ואין אוכלין אלא מבעוד יום ובין השמשות שלו אסור כיום הכיפורים ולא יאכל בשר ולא ישתה יין בסעודה המפסיק בה אבל שותה הוא יין מגיתו שיש לו שלושה ימים או פחות ואוכל בשר מליח שיש לו שלושה ימים או יתר ולא יאכל שני תבשילין

במה דברים אמורים שאכל ערב תשעה באב אחר חצות אבל אם סעד קודם חצות אף על פי שהוא מפסיק בה אוכל כל מה שירצה וערב תשעה באב שחל להיות בשבת אוכל ושותה כל צורכו ומעלה על שולחנו אפילו כסעודת שלמה וכן תשעה באב עצמו שחל להיות בשבת אינו מחסר כלום

TRANSLATION (Bracketed comments [ ] are mine)

“From the time that Av enters, we decrease our joy” [a direct citation of the Mishnah in Ta’anit 4:6] and the week within which the 9th of Av falls, it is forbidden to cut hair, to do laundry, or to wear a freshly-ironed garment – even a linen garment [i.e. since they are so drastically prone to wrinkling] – until after the end of the fast [i.e. of the 9th of Av]. And even to launder or iron something that will be set aside and worn only after the fast is forbidden. It has already become a common custom among Jews not to eat meat during this week, or to enter into the bathhouses until after the fast, and there are even places where they have the custom to stop the slaughtering of meat from rosh hodesh until the fast.

The 9th of Av – its night is like its day in every respect. And we do not eat [the day before] unless it is still during the day, since it is forbidden to eat during the beyn ha-shemashot of [the evening before] just like Yom Ha-Kippurim. One does not eat meat or drink wine at the meal just prior to the beginning of the fast [seudah ha-mafsik bah], but wine may be drunk from the press which is three days old or less [i.e. unfermented in any real way; grape juice], and it is permitted to eat salted meat that is three days old or more, but [nevertheless] one should not eat two cooked dishes [at the final meal before the fast].

With regard to what are we speaking? Where someone ate on the day before the 9th of Av after halakhic mid-day [hatzot], but if he ate a meal before halakhic mid-day, even if he considers it his final meal prior to the fast [seudah she-hu mafsik bah], he may eat whatever he wants [at that meal – i.e. since it is before hatzot]. When erev Tisha be-Av falls on Shabbat, one eats and drinks whatever he needs and brings food up onto his table, even to the point of it being as lavish as a meal of Shelomoh HaMelekh. Also if the 9th of Av itself falls on Shabbat, one should not detract from [either the quality or quantity of his food or drink] in any way.”

Important points to note about the Rambam’s words are:

[a] Any halakhic abstentions only apply to the week in which the 9th of Av falls, not to all Nine Days. This means that when Tisha be-Av falls on the first day of the week, then one need not observe any prohibitions on haircuts, drinking wine, eating meat, doing laundry, ironing, etc. at all. According to halakhah, the greatest number of days that these various abstentions could be observed is six, since Shabbat is excluded from expressions of mourning.

[b] Post-Talmudic customs are subject to dismissal. Although he initially mentions a few common customs that he had heard of in his own time in the initial halakhah, the Rambam goes on to overturn those customs by what he codifies – i.e. the law of the Talmud – in the two halakhot that follow. This again shows the methodology of the Rambam in the Mishneh Torah. Although he may make mention of certain customs, and may even praise them as being good or useful options at times, the law ultimately remains as it was determined by Hazal, unless he understands there to have been a genuine change in reality or circumstances since that era, on account of which the law needs to be re-applied.

[c] No mention is made of music, either listening to it or not listening to it during the month of Av. Music, other than folk melodies which were sung a capella, was not a daily occurrence in the times of Hazal, or even in the times of the Rambam. Usually, music was associated with the celebrations that accompanied weddings, which are already forbidden during the first nine days of Av anyhow. Our habits of listening to music today are much different, however, and there are various modern rabbanim that permit listening to music as something ordinary and normal since many today would become unduly depressed without music for more than a day or two. What they exclude instead is live music or concerts during this time. But again, this ruling is not even a contrivance since the halakhah makes no mention of forbidding music during this time in the first place.

[d] There is no halakhic prohibition on bathing during the Nine Days at all. Beside the fact that the Rambam mentions the abstention from bathhouses as being merely a custom, it must also be remembered that in his time – as well as that of the Gemara – people did not bathe regularly. Many bathed only once weekly in honor of Shabbat, while others delayed bathing for even longer periods. Those who bathed regularly in Talmudic times were referred to as istenisim – based on a Greek loanword meaning “weak” which the hakhamim used to refer to someone who is sensitive or finicky about cleanliness. Today, since nearly all people in our culture bathe regularly, the prohibitions on bathing or washing apply only to the specific narrow times in which they were expressly forbidden by the hakhamim – namely, on the days of Tisha Be-Av and Yom Ha-Kippurim.

[e] There is no halakhic prohibition on eating meat during the Nine Days. Again, not eating meat for the first nine days of Av is is mentioned as a custom, not law. The law with regard to the consumption of meat is related in the following halakhot, which expressly permits the eating of meat during this time.

The practical summary from the Rambam is as follows:

Forthodoxy Image - 3wks

Too Much Mourning

While excessive mourning is always discouraged by Hazal, and even forbidden (cf. Rambam, Mishneh Torah, Hilkhot Evel 13:12), the extent of mourning that is considered “too much” had apparently changed from ancient times during the Geonic era. Directly after the halakhot cited above, the Rambam makes the following important statement regarding most peoples’ ability to endure asceticism:

TEXT (Hilkhot Ta’aniyot 4:9)

זו היא מידת כל העם שאינן יכולין לסבול יותר מדיי אבל חסידים הראשונים כך הייתה מידתן ערב תשעה באב מביאין לו לאדם לבדו פת חרבה במלח ושורה במים ויושב בין תנור לכיריים ואוכלה ושותה עליה קיתון של מים בדאגה ובשיממון ובכייה כמי שמתו מוטל לפניו וכזה ראוי לחכמים לעשות או קרוב מזה ומימינו לא אכלנו ערב תשעה באב תבשיל אפילו תבשיל של עדשים אלא אם כן היה בשבת

TRANSLATION (Bracketed comments [ ] are mine)

This is the attribute of the entire nation [kol ha-am], that they are not able to suffer too much. But the ancient pious ones [hasidim ha-rishonim] used to conduct themselves [during the final meal before the fast] on erev Tisha be-Av in this way: They would bring him – while he sat by himself – dried bread with salt. He would dip it into water and sit between the oven and the stove-top, drinking with it a pitcher of water amid worry, dark emptiness, and weeping like one whose dead is lying before him. And in this way, or close to it, it is proper for hakhamim to conduct themselves. Never in all my days [i.e. growing up in the house of his father, Rabbi Maimon] did we eat a tavshil [cooked dish] on erev Tisha be-Av, even a tavshil of cooked lentils, unless that day fell on a Shabbat.

Here the Rambam makes the important observation that the majority of people simply cannot endure too much suffering (i.e. deprivation, asceticism, etc.). He relates how Rav Yehudah bar Ilai (b.Ta’anit 30a-b) used to take his final meal, stating that it is indicative of how the early pious ones used to conduct themselves. Also, he says that “hakhamim” – which I believe specifically refers to acting dayyanim sitting on courts over Israel (see where a few halakhot later, he uses the term talmidhei hakhamim [“Torah scholars”] which are those educated people in any era who may or may not serve on a public court) – should strive to act likewise. He also relates how he was raised in the house of his father, the great Rav Maimon.

However, he clearly says that, apart from these particularly pious people, the majority of the Jewish nation cannot stand up under overly stringent mourning practices. This is a fact that unfortunately eluded the notice of European authorities who many times felt that the evils of the common people needed to be exorcised through harsh ascetic practices, an idea based mostly on ideas associated with the “kabbalah” and mysticism. In my humble opinion, the contrived customs developed around “The Three Weeks” and “The Nine Days” should be all but ignored in favor of the simple, straightforward, mekori instructions of Hazal.

Enjoy your music, meat, and wine.

Minimum Days To Wait Before Counting Seven Clean Days – An Amazing Mekori Perspective from Rav Yosef Qafih z”l

Miqwah Water

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

Several years ago, I was approached by members of the local community kollel in protest of a halakhic ruling made by Rabbi David Bar-Hayim regarding taharat ha-mishpahah which they had found on the internet. It was specifically in regard to whether or not a woman needs to wait a minimum number of days before beginning to count her shivah nekiyim (“seven [clean] days”), or whether she may begin counting mi-she-tifsok (“from [the day] that she will cease”) – i.e. from after tzeit ha-kokhavim on the day she properly ascertains that she has stopped bleeding. Rav Bar-Hayim rules like the Rambam and other rishonim in not requiring a wait for any number of days once bleeding has completely stopped, even if the woman bled for only one day. Since most of the Haredi-Hasidic world – indeed, most of orthodoxy in general – follows the ruling of the Rema in the Shulhan Arukh (cf. Yoreh De’ah 196:11), they were almost beside themselves with concern.

The Rema, who is merely taking the position expressed in the well-known 15th century Ashkenazi work Terumat HaDeshen, requires women to wait at least five full days before being able to count their first clean day, even if they only bled for a day or two. Additionally, the Rema relates that this excessively strict and, as we shall see, nearly baseless ruling, and others similar to it, are “not to be changed” (אין לשנות).

Of course, while rabbanim of other parts of the world took a similar position that required a minimum number of days before counting the shivah nekiyim, the strict “decree” related by the Rema has been ignored by various non-European authorities, including Hakham `Ovadyah Yosef z”l who upheld the opinion of Rabbi Yosef Qaro and required waiting only four days and Mori Yusef Qafih z”l, as we will see shortly, who did not require any at all. Needless to say, the stark contrast in positions between Yemenites and Ashkenazim put these Haredi-Hasidic types on the verge of conniption and they felt constrained to protect the “sanctity” of Judaism from those who would dare take a different approach (note sarcasm).

The reason these rabbis approached me – rather than simply calling Rav Bar-Hayim on the phone and respectfully inquiring as to the reason behind his position – is another story, but it was basically due to three factors: [1] their knowledge that I was connected with Machon Shilo while I lived in Israel and am his friend, [2] an apparent preference for speaking lashon hara and motzi shem ra instead of properly investigating the facts, and [3] a penchant for cowardice. Basically, they thought that it would be easier to discredit Machon Shilo by attacking me, figuring that they would overwhelm me and I would be unable to provide them with a cogent answer as to why the rabbi had ruled this way in such a sensitive area of halakhah. What ended up happening was quite to the contrary.

My immediately reply was that since Rav Bar-Hayim studied under Rav Yosef Qafih z”l, and had acquired personal semikhah from him, he was merely following his rav in this pesaq.

“So, you’re saying that Rav Kapach poskened this way lamaiseh?” they asked.

“Yes,” I said, “and he is not alone. This ruling is somewhat common in the Baladi Yemenite community.”

With looks of disgust and disbelief, they simply said, “We are not mekabbel. There is no way that a gaon like Rav Kapach could be such an am ha’aretz that he doesn’t even know how to read the Shulchan Aruch!”

I responded matter-of-factly, “Well, I have the complete pirush of Rav Yosef Qafih on the Rambam at home. I can prove to you that he held this way. I will find the exact source and get back to you.”

Assuming that in my looking I would find out how mistaken I was, they said, “We would love to see where he says that.”

They carried the content of our conversation back to the ears of the vindictive Rosh Kollel who sent them, and I returned to my office to find proof. What I found was nothing short of amazing. I had seen this elsewhere while doing translations for Makhon Mosheh, the Rambam research institute headed by Rav Ratson Arussi, but I had never looked directly at the pirush of Mori Yusuf z”l until that point.

In Hilkhot Isurei Bi’ah 11 the Rambam discusses the laws of a yoledet (a woman unclean from the bleeding that accompanies childbirth) and counting the shivah nekiyim (the seven clean days). While recounting the halakhot, he also addresses some errors that had crept in during the Geonic Era under the influence of Karaite practices and interpretive errors that brought about the adoption of excessive humrot. Throughout this section, the Rambam demolishes the notion that such humrot and foreign practices – even though they had become fairly common in some regions – were acceptable post facto due to the force of custom. Twice he says, “ein zeh minhag ela ta’ut – this is not custom, but error.” It is important to note that in the view of the Rambam, ta’ut (טעות – “error”) can never be elevated to the level of “custom” just because a lot of people have been engaging in a mistake for an extended period of time. Error must always be corrected and dispelled. The Rambam was not alone in this; it seems that this was also the view of Rav Natronai Gaon, as I have written elsewhere.

He writes,

HALAKHAH (Text)

יב (יד) זה שתמצא במקצת מקומות שהנידה יושבת שבעת ימים בנידתה ואף על פי שלא ראת דם אלא יום אחד ואחר השבעה תשב שבעת ימי נקיים אין זה מנהג אלא טעות היא ממי שהורה להם כך ואין ראוי לפנות לדבר זה כלל אלא אם ראתה יום אחד סופרת אחריו שבעה וטובלת בליל שמיני שהוא ליל שני שלאחר ימי נידתה ומותרת לבעלה

HALAKHAH (Translation)

[12] (14) This [practice] that is found in some places where the niddah will dwell seven days in her niddut even though she only sees blood for one day, and after those seven she will sit for [a further] seven clean days (shivat yemei nekiyim) – this is not a “custom” but an error from the one who told instructed them thusly, and it is not proper to pay attention to this opinion at all. Rather, if [a woman] saw blood for one day, she counts seven [clean days] after that day and immerses on the night of the eighth – which is the second night after the days of her niddut – and she is then permitted to her husband.

COMMENTARY (Rav Yosef Qafih – Bracketed comments [ ] are mine)

On these two halakhot (12-13) the Magid Mishneh writes words that are simple and clear. These words are also no secret and well-known [i.e. there is no need for them to be quoted here].

The Noda BiYehudah writes (in Yoreh De’ah, Mahadurah Tinyana, siman 125):

“…The Geonim did not mention this matter of setirat shikhvat zera [i.e. that semen which issues out of the vagina in the days following marital relations can ‘undo’ or cancel out clean days, causing the need for her count to be restarted] and explained the matter as it was brought by the Rema in Yoreh De’ah 196:11. And there the Rav, the Beit Yosef, that the fact that the Rif omitted this law is not a proof that he holds [a similar opinion] to the Ra’avad, namely, that this matter was not explained [by the hakhamim] except in relation to ritual purity, not in relation to [whether a woman is permitted to have relations with] her husband, since the Rif omitted many laws, for it is his method to omit that which is not common. And says that this is also not a common occurrence since the majority of women usually ‘continue seeing [blood] for five or six days and they therefore have no need for this law’ (see there). [i.e. even if a woman has relations just prior to the onset of her menstruation, she will – according to the view of the Beit Yosef – bleed for a sufficient length of time that even if she were to issue semen at the same time it would not affect her counting of the shivah nekiyim]

But I say that his reasoning is strained [devarav dahukim – דבריו דחוקים] because many women see [blood] for only one or two days and then stop [bleeding]. And it appears, in the poverty of my personal estimation [le-aniyut da’ati – לעניות דעתי], that the intention of the Rif and the Geonim in omitting this matter of setirat shikhvat zera is not because of the position of the Ra’avad, but because of what the Tosafot wrote in b.Niddah 33a, starting at the words רואה הויא : ‘Our teacher Yitzchak says that it is possible to find that a woman that had permissible relations whose clean days are canceled out by pelitah [i.e. the leaking of semen following relations], even after three consecutive days, because the halakhah has been established for us in accordance with the rabbanan, as explained by Rebbi Akiva, that they require six full onot [an onah is a 12-halakhic-hour period, either a day or a night, and so one day is thereby equal to two full onot] etc.” (see what the Tosafot write there). [On the same subject] the opinion of the Rambam – in Hilkhot She’ar Avot HaTuma’ot 5:12-13 –  is that leaked semen does only imparts uncleanness [metam’ah – מטמאה] up until three onot, which is equivalent to a day and a half after the onah is which she had relations. It is not possible to find a practical application of this law that would occur under permissible circumstances at all [i.e. since, as the Tosafot explain, a tum’ah mafseket cannot interrupt the count if it appears and resolves on only one day – see Table 1a below and the explanation of the Tosafot in b.Niddah 33a, starting at the words רואה הויא]. No, this law can only imply in a case where she had transgressed and had relations at a time when she was forbidden to do so, and such a thing is certainly not a common occurrence. And it was for this reason that the Rif and the Geonim did not teach about this matter of pelitat shikhvat zera because they held as did the Rambam that shikhvat zera can only impart uncleanness for three onot and that it is only possible to find these circumstances when a woman has had forbidden relations which is not a common occurrence. The reasoning of the Beit Yosef is strained.” etc. – see there in the Noda BiYehudah.

See also above in comment #17.

It appears to me that the opinion of the Rif, the Rambam, the Ra’avad, and the Rashba that there is no halakhic concern for pelitat shikhvat zera at all, but rather she begins to count the shivah nekiyim from the time that she stops bleeding [mi-she-tifsok – משתפסוק] and afterward immerses. The practical ramifications of this opinion is that in not a few cases there are humrot that prevent couples from fulfilling the mitzvah of ‘be fruitful and multiply’ [i.e. פריה ורביה – having children], especially for those women who ovulate early and, through [unnecessarily] delaying immersion, miss their time for becoming pregnant. The plain halakhah is to be diligent and careful concerning the shivah nekiyim specifically according to the methodology of the Rambam, which is the received tradition from the Geonim, as was mentioned above, because in most cases [today] counting the shivah nekiyim is not just the stringency of Jewish women [humrat banot yisra’el – חומרת בנות ישראל], but is actually de-oraita [i.e. since nowadays the majority of women do not menstruate at a consistent time each month and never establish a veset (וסת) at all, they are zavot in the actual sense and are obligated to carefully count shivah nekiyim before being able to go to the mikveh]. In Yemen there were various customs. There were those who began counting shivah nekiyim as soon she stopped bleeding, there were those who waited [a minimum of] four days and then counted shivah nekiyim, there were those who waited [a minimum of] five days and then counted shivah nekiyim, and there were those who waited [a minimum of] seven days and then counted shivah nekiyim. And the one thing that they all had in common is that they all were careful to count shivah nekiyim in accordance with the truth of the Torah. And that which the Rambam wrote, ‘and it is not proper to pay attention to this opinion at all’ appears to me to indicate that even women who have been accustomed to counting a full seven days before beginning to count the shivah nekiyim and now want to return to the methodology of the Rambam may, and they do not even require hatarat nedarim to do so since ‘this is not a custom but an error.'”

(End Commentary)


And there it was. Nothing could have been a more clear statement by Mori Yusef z”l of his position on the matter – and it indeed was identical to that of his student, Rabbi Bar-Hayim. I sent a picture of this section of commentary to each of the rabbis who had confronted me about this.

One read it and immediately conceded by saying, “Wow. Rav Kapach was a gaon b’toyreh and if he said it then I have no arguments. Yasher koach.”

The other wanted to discuss it and so we met in the shul and I took him through the entire passage. His reaction was guarded and he was in disbelief. “This must just all be his learning. It can’t be lamaiseh,” he said. Then I pointed to the last paragraph. “Ah, so he was discussing the Yemenite mesoyreh,” he said. Then I pointed to the last sentence and he said nothing else but, “Okay. Thank you.”

Once it reached the eyes of the vindictive Rosh Kollel, I got no response other than a smoldering disapproval.

For anyone interested, the following is the passage from the Noda BiYehudah quoted at length above. It is not exact, but remember that Mori Yusef z”l did not use computers or a searchable Bar-Ilan when writing his pirush. He used only a collection of sefarim along with his vast memory and knowledge of the sources – writing each note on 3 x 5 cards in pen before sending the stacks of cards in rubber bands to his students for typesetting. He was nothing short of an amazing talmid ha-hakhamim.

NODA BIYEHUDAH – MAHADURAH TINYANA 125

Noda` BiYehudhah - Mahadurah Tinyana 125

One of the things that really rocked these two Haredi rabbis was not only that Mori Yusef was posek this way le-ma’aseh, but also that a major Ashkenazi figure like the Noda BiYehudah explained his position, even though he himself ruled like the Rema in the end.

Shavua tov le-kulam,

YB

Women Covering Their Hair – A Mekori Perspective

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

At the outset, I want to admit that what I put forth here is my own understanding of kisui rosh le-nashim (כסוי ראש לנשים – “headcovering for women”). As with nearly every subject, there will always be another who disagrees, but when one speaks his own view he cannot be divided. Honest and sincere study demands that one arrive at an honest and sincere conclusions. There are certainly other ways to approach the covering of women’s hair from a halakhic standpoint, but what follows is the approach that I have arrived at based on my own study and consideration – while standing on the shoulders of others – in search of “where hokhmah will be found and in which location is understanding” (Iyov 28:12, see Rashi there). My conclusions are consistent with those of several major Sefardi posekim and allow me to be intellectually honest about this topic, so I am not worried that I have somehow misled myself.

Hair Down 1The subject of women covering their hair when in public has been, and continues to be, a topic of intense discussion among both women and halakhists alike. Who is required to cover their hair? Where are they required to cover their hair? How much of their hair is required to be covered? What type of covering(s) may be used? What is the purpose of covering hair, modesty or some other consideration? Is it a matter of cultural practice or positively enacted law? Although these are all important questions, it seems that many of them elude any explicit explanation by Hazal. In fact, because the primary sources seem to be so sparse on the subject, the few statements which Hazal did make regarding kisui rosh le-nashim gave rise to a host of interpretations by the rishonim. What’s more, the actual text of the Gemara uses terminology that unfortunately caused some expositors – including the Rambam, the “Great Eagle” on whose wings many are carried out of the darkness of ignorance  – to turn an explicit statement of the Mishnah on its head, as will be discussed below, leading only to further confusion among later writers who referred to him.

It is my firm belief that the explanation put forth by the late, innovative, and intrepid halakhist, Rav Yosef Messas z”l (1892-1974) – Moroccan by birth and former rabbi of Tlemcen, Algeria and Haifa, Israel – cohesively explains all relevant texts and correctly contends that kisui rosh le-nashim is no longer a halakhic requirement in our times. The sole English translation of Rav Messas’ teshuvah on this subject is available for free download HERE. My understanding is largely based on his conclusions, but the majority of the analysis below is not covered in Rav Messas’ famous teshuvah.

However, before we discuss the conclusion, let us begin at the beginning.

The Mishnah – Dat Mosheh & Dat Yehudit

The entire subject begins with a short passage in m.Ketubot 7:4[6] that is as follows:

TEXT

אלו יוצאות שלא בכתובה העוברת על דת משה ויהודית איזו היא דת משה מאכילתו שאינו מעושר ומשמשתו נידה ולא קוצה לה חלה ונודרת ואינה מקיימת איזו היא דת יהודית יוצאה וראשה פרוע וטווה בשוק ומדברת עם כל אדם

TRANSLATION

“These are the women that are divorced (lit. “who go out”) without their kethubah payment: one who transgresses a matter of dat Mosheh or [dat] yehudit. What is considered to be dat Mosheh? She feeds her husband produce from which terumot and ma’aserot have not been taken, she has intercourse with him while she is niddah, she does not separate hallah, and she makes a neder and does not fulfill it. What is considered to be dat yehudit? She goes out in public and her head is uncovered, she spins thread in the open marketplace, and she speaks with any man who will engage her.”

As is clearly demonstrated from the text, dat Mosheh refers to the “religious practice” (the actual meaning of “dat – דת”) established by the laws of the Torah, and dat yehudit refers to the religious practices established by Jewish women. While dat Mosheh is never explicitly defined in the sources, dat yehudit is, as the Rambam states in Hilkhot Ishut 24:11[12]: “ואיזו היא דת יהודית הוא מנהג הצניעות שנהגו בנות ישראל – What is dat yehudit? It is the custom of modesty that Jewish women practice.” Rashi defines it similarly: “שנהגו בנות ישראל ואע”ג דלא כתיבא – That which Jewish women practice even though it is not written explicitly in a Biblical verse.” Lastly, the Tosafot HaRid defines it as follows: “דבר שאין בו איסור אלא שהנשים נהגות בו דרך צניעות – Something which is not connected to an actual prohibition, but women practice it as a part of feminine modesty.” But what is most important to note at this point is that the Mishnah places the uncovering of a woman’s hair in public (peru`at rosh – פרועת ראש) firmly in the category of dat yehudit and not in that of dat Mosheh.

Does The Gemara Disagree?

The attendant Gemara for the Mishnaic phrase “she goes out in public and her head is uncovered” on b.Ketubot 72a-b is fairly brief, but its terse and somewhat unclear phrasing has become the occasion for volumes of commentary since the era of Ravina and Rav Ashei (the original redactors of the Talmud Bavli).

TEXT

ואיזוהי דת יהודית יוצאה וראשה פרוע:  ראשה פרוע דאורייתא היא דכתיב ופרע את ראש האשה ותנא דבי רבי ישמעאל אזהרה לבנות ישראל שלא יצאו בפרוע ראש [אמר רב יהודה אמר שמואל – רי”ף] דאורייתא קלתה שפיר דמי דת יהודית אפילו קלתה נמי אסור אמר רבי אסי אמר ר’ יוחנן קלתה אין בה משום פרוע ראש הוי בה רבי זירא היכא אילימא בשוק דת יהודית היא ואלא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה אמר אביי ואיתימא רב כהנא מחצר לחצר ודרך מבוי

TRANSLATION (INITIAL)

“What is considered to be dat yehudit? She goes out in public and her head is uncovered: An uncovered head is referred to in the Torah itself, and it is written, ‘And he uncovers the head of the woman’ (cf. Bamidbar 5:18). The school of Rebbi Yishma’el taught that it is a warning to the daughters of Israel that they should not go out in public with their heads uncovered. [Rav Yehudah said in the name of Shemu’el – girsa of the Rif and other rishonim], ‘According to the Torah, a kalatah (קלתה) is permissible, but [according to] dat yehudit even a kalatah (קלתה) is forbidden.’ Rebbi Asi said in the name of Rebbi Yohanan, ‘[While wearing] a kalatah (קלתה) she is not considered to have an uncovered head.’ Rebbi Zeira raised a difficulty, ‘Where [is the statement of Rebbi Yohanan applicable]? If we say that [he meant] in the open marketplace, then [we already have a statement by Shemu’el that] it is forbidden by dat yehudit, and if [he is referring to] a courtyard, then we will not be able to allow a single daughter of Avraham Avinu to remain married to her husband [i.e. since there is hardly a woman who covers her head while in her private courtyard]!’ Abaye said – and some say it was Rav Kahana – ‘[Rebbi Yohanan was referring to a woman going from] courtyard to courtyard by way of an alley.'”

Several interpretive issues and questions should stand out at first:

[1] NOWHERE in the passage does it mention dat Mosheh, but only dat yehudit. (The use of the term de-oraita will be discussed below, but dat Mosheh is simply not under discussion here.)

[2] Much depends in this passage on the definition of kalatah (קלתה). What is it?

[3] What does “according to the Torah” mean? Is it indicative of a law, or is it merely discussing the implications of the Scriptural passage in Bamidbar 5:18?

[4] Where is the description of the headcovering? The passage never discusses materials, how much hair needs to be covered in each context, or what a covering is supposed to look like. Wouldn’t Hazal have simply told us the answers to all of these pertinent questions, especially when matters of family life (i.e. divorce) is at stake?

[5] What is the meaning of “uncovered” (פרוע)? What does it mean when the kohen “uncovers” (ופרע) the hair of the sotah?

The Meaning of “De-Oraita”

Twice in the above passage, the Gemara uses the Aramaic phrase de-oraita (דאורייתא), generally understood to mean the same as min-hatorah (מן התורה – “from the Torah,” i.e. a Biblical law), but it can also have other meanings. The Sedei Hemed (4:19) demonstrates that there are numerous instances where the term de-oraita (דאורייתא) indicates something rabbinic in nature or that a law is merely hinted at in the Biblical text, using the passage as an asmakhta (“support” – i.e. a verse used as a mnemonic to remember a law, or to lend it Biblical credence, but not as the actual derivation of it). He writes as follows:

TEXT

Sedey Hemedh 4-19

TRANSLATION

19: de-oraita (דאורייתא) – We find that this language is used to describe matters that are not min-hatorah, but the Gemara only wants to say that it has a support in the Torah. This is what maran the Bet Yosef wrote in Yoreh Deah at the beginning of siman 184 (beginning with the words “And at the time…”) with regard to the rulings of the Tosafot, the Rosh, and the Sefer Mitzvot Gadol (Semag) with regard to the mandatory separation before the menstrual cycle, as determined by a woman’s veset (וסת), being de-oraita (דאורייתא) – see there. Our blessed teacher the Derishah writes similarly in Yoreh Deah (at the beginning of siman 183) regarding the opinion of maran (the Tur) that such separation prior to menstruation is “a law of the Torah…” – see there. We also find that maran the Bet Yosef writes in Orah Hayim 418 – at the end of the section beginning with “And the individual…” – that what it says in the Gemara regarding rosh hodesh, that it is de-oraita (דאורייתא), is only the Gemara wanting to say that its asmakhta is only hinted at in the Torah – see there. And look at the Shakh in Hoshen Mishpat 28:14 where according to both the author of the commentary known as Megillat Ester and the Shakh himself, there is a principle of Talmudic interpretation that when it says that something is “de-oraita (דאורייתא),” and is not saying so while asking a question, then it is possible to interpret it as indicating an asmakhta. Also the Afra De-Ara, in commenting the opinion of the Ara De-Rabbanan in 42:144, writes that what Rashi wrote on the Rif in tractate Beitzah (folio 37) that when it states that conducting business on Shabbat is “a Biblical prohibition” (isur de-oraita איסור דאורייתא) it is not necessarily so since it is clearly only rabbinic in origin and the Scriptural verse only comes to strengthen it. In Helek HaShitah 42b, writes in the name of the Mehazeh Avraham that he takes the position on the meaning of what Rabbenu Yonah writes in the third chapter of that Berakhot when he says that it is min-hatorah (“from the Torah”) that he wanted to say that it is hinted at in the Torah. And he concludes by admitting that this is a strained interpretation of Rabbenu Yonah, but that it is reasonable to appeal to this idea that “the Scriptural only comes to strengthen it,” since, being that it is explicit in the words of the Rambam that it is rabbinic in origin, we are comfortable in our opinion that the words of Rabbenu Yonah are in agreement with the reasoning of the Rambam – see there. And there is a further support for this in that we see that also the holy masters mentioned above are comfortable with this interpretation. And see what I have written in the second volume of this work in sections 115 (beginning with the words “And thus”) and 116. Regarding what is stated in the Gemara about melakhah on holo shel mo`ed (b.Mo`ed Katan 11b) where it says, “The laws of avelut (‘mourning’) are rabbinic, melakhah on holo shel mo`ed is Biblical (de-oraita דאורייתא),” There are those among the rishonim that maintain that the intention of saying it is de-oraita (דאורייתא) is to indicate that it has an asmakhta from what is written in the Torah [not that it is necessarily a Biblical law]. See Rabbi Eli`ezer of Metz in the Sefer Yere’im #113, the Hagahot Maimoniot on Hilkhot Yom Tov chapter 7, the Rosh at the beginning of tractate Mo`ed Katan, and the Tosafot on b.Hagigah 18, beginning with the words “The intermediate days…”

It is abundantly clear from the words of the Sedei Hemedh that the term de-oraita (דאורייתא) does not always indicate a Biblical law, but often refers to a rabbinic law that has an allusion within the Biblical text. Le-aniut da`ati, I believe that this is how de-oraita (דאורייתא) in the b.Ketubot 72a-b is properly understood. I am not alone in this, as Rashi there writes in response to the opening assertion that “An uncovered head is de-oraita (דאורייתא)” that “…[if this is so] then why did [the Mishnah] not call it dat Mosheh?!?” (72a). In other words, if going out with an “uncovered head” is Biblical in nature, then why didn’t the Mishnah list it under dat Mosheh instead of dat yehudit? Note this well.

We should hereby take notice of two things: [1] the phrase de-oraita (דאורייתא) is equated to dat Mosheh [at least possibly] by Rashi (the Rambam and other rishonim make this leap as well, as we will see), and [2] with the language of the Mishnah immediately available, why would the Gemara – if it desired to argue that covering the head was not dat yehudit – not simply say “It is dat Mosheh” instead of using the somewhat generic term “de-oraita (דאורייתא)”?

The Mysterious Kalatah

Much of the discussion around this passage of the Gemara hinges on the definition and identification of the word kalatah (קלתה), referred to three times. Rashi (72b) identifies it as a small basket used by women for carrying goods – mostly likely the Greek work basket known as a callathus. The Rambam identifies it as a mitpahat (“kerchief” – cf. Mishneh Torah, Hilkhot Ishut 24:9). Other rishonim also identify it with some sort of cloth. This is most probably due to the reference of a “scarf” in the Tosefta being removed from the head of the sotah (see below), but this doesn’t necessarily make sense since the Gemara here in Ketubot is not discussing the sotah ritual at all.

What is the common thread driving these various identifications? Their relation of the Aramaic word kalatah to a root meaning “woven.”

There are several difficulties with these identifications, however, that occur to me:

[i] If it is a basket, then what does that have to do with the shaming of the sotah in Bamidbar 5:18? Does the kohen remove a basket from her head? Certainly not. Besides, the Tosefta in t.Sotah 3:1 specifically indicates that in those days the kohen removed a tza`ifah (צעיפה – a “scarf”) from the head of the sotah during the process, not a kalatah.

[ii] What are the descriptive parameters of such a basket, a scarf (צעיפה), or kerchief (מטפחת)? If kalatah was meant to refer to either of them, then why did the Gemara not simply use those terms?

[iii] If the assumption of a cloth or kerchief on the head is due to the implication of para` during the sotah ritual, as noted previously, and it may make some initial sense on its surface, but it requires an assumption of other headgear and perhaps even a series of garments by logical extension which are not even mentioned by the Gemara. This seems to be an overly-complicated solution to properly understanding the text of the Talmud itself.

Rabbi Ya`akov Reischer (1661-1733), in his responsa collection entitled Shevut Ya`akov (1:103), suggested a unique position, accepted by several major halakhists (including Rav Yosef Messas z”l), that kalatah (קלתה) means “braids” or “braiding.” He relates the Aramaic kalatah (קלתה) to the Hebrew keli`ot (קליעות). This identification makes sense in the context of the sotah, since the Mishnah says in b.Sotah 7a that “ufara` – and [the kohen] uncovers” means that “he undoes her hair” and Rashi explains “from its braids (מקליעתו) – as the Gemara will explain below.” (see 8a)

It seems clear, then, that kalatah here is a reference to the woman’s hair while braided and/or tied upon her head, apparently even without a covering over the top of them (e.g. a scarf, hat, etc.) This understanding of the word kalatah is also maintained by the Magen Avraham (Rabbi Avraham Gombiner, ca. 1635-1682), as is referenced in the teshuvah of Rav Messas z”l on this topic, available on the website.

The Meaning of “An Uncovered Head”

It is seemingly taken for granted by most commentators that the meaning of word para` (פרע) is “uncovered.” This, however, is not true – or, at least, not completely. What the word means – both in Biblical and Rabbinic usage – is “loose” or “unrestrained,” and has the connotation of hair that is uncovered and unkempt.

Here are examples of Biblical usage with regard to hair:

[a] Vayikra 21:10 – The kohen gadol is not allowed to grow his hair “long” (and unkempt).

[b] Bamidbar 6:5 – The hair of the nazir is supposed to “grow wild” throughout the nezirut.

[c] Devarim 32:42 – Enemies described as having “long/wild hair.”

[d] Yehezkel 44:20 – The kohanim not allowed to either shave or let their hair grow “long/wild” (i.e. unkempt).

Examples of para` not in reference to hair:

[e] Shemot 32:25 – Mosheh saw that the people had “gone wild” or “become unrestrained” during the worship of the golden calf.

[f] Mishlei 29:18 – Without prophecy, the nation is “unrestrained” or “loose.”

In rabbinic usage, the meaning of “loose,” “unrestrained,” “unkempt” is maintained. Also masekhet Kethubot (15b), in the Mishnah there, discusses a virgin bride on her wedding day leaving her special canopy on the way to the huppah while “her head is ‘uncovered'” (roshah parua` – ראשה פרוע), signifying that this is her first marriage. Both Rashi and the Tosafot HaRid explain that this means that her hair is loose and “upon her shoulders.” They further explain that this is the custom of how the bride is when she is escorted from the house of her father to the house of her husband.

Rashi makes a blanket statement in b.Sotah 8a regarding the word para` (פרע):

TEXT

ופרע: בכל מקום לשון גילוי הוא

TRANSLATION

And he loosens: In every place it is the language of revealing.”

This is an interesting statement by Rashi, especially in light of his other explicit statements about the meaning of Bamidbar 5:18 to the effect that it means “to loosen [hair from its braids].” It seems clear, however, that para` in the context of the sotah implies the entire act of removing the covering from the head, revealing the hair underneath, and disheveling it so it is loose across the shoulders.

Putting It All Together

With the language clarified, it is now possible to suggest a more cohesive reading of the Talmudic text. What I suggest is as follows:

TEXT

ואיזוהי דת יהודית יוצאה וראשה פרוע:  ראשה פרוע דאורייתא היא דכתיב ופרע את ראש האשה ותנא דבי רבי ישמעאל אזהרה לבנות ישראל שלא יצאו בפרוע ראש [אמר רב יהודה אמר שמואל – רי”ף] דאורייתא קלתה שפיר דמי דת יהודית אפילו קלתה נמי אסור אמר רבי אסי אמר ר’ יוחנן קלתה אין בה משום פרוע ראש הוי בה רבי זירא היכא אילימא בשוק דת יהודית היא ואלא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה אמר אביי ואיתימא רב כהנא מחצר לחצר ודרך מבוי

TRANSLATION (RESEARCHED)

“What is considered to be dat yehudit? She goes out in public and her hair is loose and upon her shoulders: Having her hair loose and on her shoulders is alluded to by the Torah, as it is written, ‘and the kohen shall loosen the woman’s head [of hair] from its braids [and let it rest upon her shoulders].’ And the School of Rebbi Yishmael taught that this passage is a warning to the daughters of Israel (i.e. Jewish women) not to go out in public with their hair loosened and unkempt. Rabbi Yehudah said in the name of Shemu’el, ‘From the simple implication of the Torah, having her hair up and braided while in public is permissible, but according to the custom of Jewish women even hair while braided in also forbidden to be worn in public (i.e. the braids need to be covered as well with some sort of hat or kerchief).’ Rav Asi said in the name of Rebbi Yohanan, ‘While her hair is braided, we do not consider a woman to have infringed on the prohibition of having her hair loose (i.e. she cannot be divorced without her kethubah as described in the Mishnah).’ Rebbi Zeira raised a difficulty with this statement, ‘Where [is the statement of Rebbi Yohanan applicable]? If we say that he meant in the open marketplace, then we already have a statement by Shemu’el that it is forbidden by the custom of Jewish women, and if he is referring to a courtyard, then we will not be able to allow a single daughter of Avraham Avinu to remain married to her husband [i.e. since there is hardly a woman who worries about her hair while in her private courtyard]! Abaye said – and some say it was Rav Kahana – ‘[Rebbi Yohanan was referring to a woman going from] courtyard to courtyard by way of an alley.'”

So according to the Gemara, nothing – not a covering and not braids – is required either within a house or a private courtyard. Braided hair – as opposed to it being down and loose upon the shoulders – is acceptable when briefly going between private spaces via a semi-public thoroughfare. Another covering, presumably a scarf or a hat, is required by standards of modesty practiced by Jewish women. Although no garment specific is mentioned in the Gemara, it seems reasonable that Hazal assumed that the hair coverings used in each community by women – a practice that was nearly universal in the ancient world, especially in the Middle East and North Africa – would suffice to fulfill dat yehudit and thus did not require an explicit description.

This interpretation makes much more sense and requires the least amount of innovation an assumption on the part of the reader.

The Talmud Yerushalmi

The text of the Talmud Yerushalmi is often terse and uses unfamiliar language and terminology – this case is no exception. This is not to say, as is unfortunately common, that it should be disregarded or that it is not useful as a halakhic source (halilah). To the contrary, it is extremely valuable in a great many ways and for very important reasons. However, due to it being less-developed and less-studied throughout the centuries following its redaction, it often offers us less in the way of explanation than does the Bavli – but this is certainly not always the case. So, for the sake of being thorough and in order to properly honor the hakhamim of Eretz Yisra’el, we will briefly examine y.Ketuvot 7:6, which contains the following passage:

TEXT

וראשה פרוע לחצר אמרו ק”ו למבוי רבי חייה בשם רבי יוחנן היוצאה בקפלטין שלה אין בה משום ראשה פרוע הדא דתימא לחצר אבל למבוי יש בה משום יוצאה וראשה פרוע יש חצר שהוא כמבוי ויש מבוי שהוא כחצר חצר שהרבים בוקעין בתוכה הרי הוא כמבוי ומבוי שאין הרבים בוקעין בתוכו הרי הוא כחצר

TRANSLATION

“…and her head [of hair] is loose – This was spoken in reference to a woman being within a private courtyard, so all the more so (קל וחומר) should this be the case in an alleyway. Rebbi Hiyyah said in the name of Rebbi Yohanan, ‘The woman who goes out with her kaflatin (קפלטין), we do not considered to have transgressed the prohibition of having her hair loose in public [i.e. she cannot be divorced without her ketubah payment because of this].’ This is what you say with regard to a private courtyard, but in an alleyway we do consider a woman to have transgressed the prohibition of having her hair loose in public [i.e. even while wearing her kaflatin (קפלטין)]. There is a courtyard that is like an alleyway – a courtyard into which the public traffic breaks. And behold there is an alleyway into which the traffic of the public does not break and it is like a courtyard.”

Some differences – and possible similarities – with the sugyah in the Bavli are as follows:

[i] Whereas the Bavli uses the word kalatah, the Yerushalmi uses another word altogether: kaflatin (קפלטין), a word that may possibly be in the plural. Both the Penei Mosheh and the Korban Eidah explain kaflatin (קפלטין) with the word mitpahat (מטפחת) and the Arukh brings an opinion that it is Latin for hanging curls of hair and a pe’ah nokhrit (פאה נכרית) which, according to certain opinions, means a wig. The Me’iri, in his Bet HaBehirah on b.Ketubot 72a equates kaflatin (קפלטין) with the kalatah of the Bavli, which he views as being a kerchief (mitpahat מטפחת).

[ii] Rebbi Yohanan, if we assume that this is the same or a similar statement as the one attributed to him in the Bavli, is understood here to be giving the law for a courtyard, whereas in b.Ketubot 72a-b it is determined that he is giving the law for passing between courtyards briefly via a semi-private alley.

[iii] Perhaps the most obvious difference from the Bavli is that the Yerushalmi does not build its case from the parashah involving the sotah in Bamidbar 5:18.

[iv] The passage in the Yerushalmi ends by stipulating that the status of both a courtyard and an alleyway is subject to change on the basis of the amount of public traffic they receive. The Bavli makes no such stipulations.

Tzarikh Iyyun. (The matter needs further investigation.)

The View of the Rambam

Due to the magnificence and centrality of the Mishneh Torah to halakhah, and particularly to mekoriyut, we will now examine the view of the Rambam on this subject. And while I certainly do not believe, as is unfortunately the common conception in the Haredi-Hasidic world, that the Mishneh Torah is essentially a closed and incoherent work from which it is nearly impossible to perceive the position of the Rambam from Hazal on any given issue, in this case a complete understanding is, in some ways, truly difficult.

Completely elucidating the opinion of the Rambam with regard to the issue of kisui rosh le-nashim, dat Mosheh, and dat yehudit is not the most difficult task at hand, however, as he does clearly state his understanding of the law in plain language. The most difficult task in regard to the Rambam is ascertaining how he gets from the text of the talmud to arrive at his particular position.

There is neither need nor space here to go through all the details that comprise the breadth of the view of the Rambam – which would be a major undertaking all by itself – but there are two main points I would like to address here:

[1] First, but not entirely relevant to the main point of our discussion here, is that in the Mishneh Torah, “dat Mosheh” does not refer only to things which are min-hatorah necessarily, but also includes things which are rabbinic in nature (as the Rambam highlights in Hilkhot Ishut 24), yet they are nevertheless thought by the Rambam to be based on actual directives of the Torah itself. This ambiguity as to the definition of dat Mosheh – seemingly being composed of both laws that are min-hatorah and mi-divreihem – is perhaps the central reason for the difficulties present in the Rambam’s expressed perspective vis-à-vis the text of the Gemara in b.Ketubot 72a-b.

[2] Second, and most important to our discussion, is that while the Mishnah clearly lists “going out with an uncovered head” in the category of dat yehudit, the Rambam lists it under dat Mosheh (cf. Hilkhot Ishut 24:9[11]), creating an entirely different category for what constitutes a violation of dat yehudit, namely going out without a full-body cloak known as a radid (רדיד), which is analogous to the khimaar (خمار) or abaayah (عباية) worn by Muslim women (cf. Hilkhot Ishut 13:13; 24:11 and Shir HaShirim 5:7). His understanding of dat Mosheh is his perception of a requirement from the Torah for women to wear a headscarf called a mitpahat (מטפחת – cf. Hilkhot Ishut 24:9). So we can clearly see that the Rambam essentially relates dat Mosheh and dath yehudit to two different garments, each increasing in their level of coverage respectively. But it does not stop there since, as we will see shortly, the Rambam assumes the presence of yet a third garment.

It is my firm contention, and I am not alone in this reading of the Rambam, that he more or less draws lines between the text of the Gemara to the pieces of women’s clothing commonly worn in the Arab-Muslim world in which he resided. The section of the Mishneh Torah that bears this out most clearly is in Hilkhot Sotah 3:5, where he describes the shaming of the suspected adulteress as follows:

TEXT

וכל איש שיחפוץ לבוא ולראותה יבוא ויראה והיא עומדת ביניהן בלא רדיד ולא מטפחת אלא בבגדיה וכופח שעל ראשה כמו שהאישה בתוך ביתה

TRANSLATION

“…and any man who so desires to come and see her comes and sees her, and she stands among them without a full-body cloak (רדיד), without a headscarf (מטפחת) – nothing except for her clothes and the cap (כופח) which is upon her head, just as a woman is dressed while within her house.”

Headcoverings in MT - Table 3

Table 1.1

[Just a side note before moving forward: Whenever punitive “shaming” is mentioned in connection with Jewish jurisprudence, especially when it is a woman, it is important to clearly explain that it is always “measure for measure” (middah ke-neged middah). In other words, the person who is the object of the shame is first found guilty of shameful behavior. In the case of the sotah, it is not true that simply any jealous husband may simply subject his wife to the drinking of the mei ha-marim hame’orerim (“the bitter waters that cause curse” – cf. Bamidbar 5:18). She must first have repeatedly demonstrated the shameful and distasteful behavior of openly spending time alone with other men and talking flirtatiously with them, even after her husband has asked her not to do so. Without these prerequisite actions on her part, establishing her behavior patterns through valid witnesses, and having been properly warned – not only should he not make her drink the waters of curse, it is forbidden by halakhah for him to do so (cf. Hilkhot Sotah 1). Judaism is a system of order based on reason and law – it does not obsess itself with subjugating women and it does not indulge obsessively jealous husbands. דו”ק]

Headcoverings in the MT - Table 2

Table 1.2

Le-aniut da`ati, the claim that the Rambam assumed Arab norms of dress and modesty, reading it back into the Gemara, is incontrovertible based on this text.  The kupah (כופח), which is a small “cap” similar to what some Arab-Muslim women wear under their hijaab, is also mentioned as being part of the kesut (“clothing”) that a husband owes his wife according to halakhah (cf. Hilkhot Ishut 13:1). No reference to this garment or the full-body cloak (radid רדיד), however, exists in the words of Hazal.

Headcoverings MT vs Gemara - Table 4

Table 1.3

Ardent “Rambamists” must deal with this reality. It is incumbent upon them to admit that the construct – as presented in the Mishneh Torah and displayed in the tables above – is derived independently of Talmudic law and only alludes to it in a cursory manner. All of this is said, of course, with only the greatest respect and honor for the Nesher HaGadol, Rav Mosheh ben Maimon z”l.

Practical Summary

In response to the questions posed in the introduction:

Where were Jewish women required to cover their hair in the times of the Gemara? In the times of the Gemara, when it was the standard “custom of Jewish women,” they were only required to cover their hair fully in the public sphere (“the marketplace”) and partially – or perhaps just braided and not covered – in a semi-public place (“an alleyway”). And these places, if frequented by the public may also be places where it is required for a woman to cover their hair (Yerushalmi).

What type of covering is required? A type of covering required to be worn on a woman’s head is never specified by Hazal. Apparently there is a partial type of covering (or, again, more likely not a covering but a woman’s hair being braided), a mysterious object referred to as a kalatah. The required size, material, shape, etc. is never mentioned for the kalatah either.

How much hair needs to be covered – every single hair, most of it, part of it? The amount of hair required to be covered is never explicitly discussed in either the Mishnah and the Talmud.

What is the purpose for covering the hair according to the halakhah? The purpose for covering the hair was for modesty and propriety because it was “the practice of Jewish women.” Rabbi Yishma’el only says that the pasuk in the Torah regarding the sotah is only a “warning” (אזהרה – azharah), not an actual law. Neither the Sanhedrin nor any other bet din ever ruled on this. The courts only upheld the common practice of women, just as they upheld common practices when it came to hiring day-laborers and other halakhic matters tied to the cultural context of a particular place and time.

Jewish women covered their hair in the ancient world because it was the custom of women in nearly every culture in those times to do so. This is the reason why it was not necessary to make it a law in the Torah or for Hazal to make it a ruling. Since the Torah did not make a law, Hazal did not feel it was necessary for them to legislate every detail of feminine modesty, but only to enforce the sentiments of propriety for married women in that time. Since the cultural sentiment of modesty at that time included women covering their hair while in public, and that not doing so was considered shameful and lewd, Hazal entitled a husband at that time to divorce his wife, should she carry herself that way in public, because it was embarrassing. This would also have also been the case, according to the Mishnah, for women who carried on conversations with men who were not their relatives, but today since women and men talk normally in public, no bet din would grant a divorce without a ketubah payment for this reason.

Other things we know:

The covering of heir is listed by Hazal under the category of “custom” not “law” – the Mishnah explicitly calling it dat yehudit and NOT dat Mosheh. Placing it under “dat Mosheh” is a misreading of the Gemara by the Rambam (and those who followed him in his error) which was apparently motivated by Islamic cultural norms.

We also know that covering the hair is no longer “the custom of Jewish women” today. Nothing proves this more than the widespread custom of Haredi women to wear wigs in order to “cover” their hair. There is no difference, in either reality or halakhah, between a woman’s hair and a wig (a pe’ah nokhrit is not a sheitel, and notice that the Gemara here in this sugyah doesn’t mention one either – cf. GR”A, Shenot Eliyahu on Masekhet Shabbat 6:5). All that sheitels have proven is that even the most stringent sectors of orthodox Jewry are completely fine with women wearing a fashionable yet modest hairstyle today.

Finally, Who is required to cover their hair today? In reality, no one. Rav Yosef Messas z”l has written an unassailable defense of women no longer being required to cover their hair at all in modern times. A full English translation of his teshuvah can be downloaded HERE. He explains that since it was merely the custom of Jewish women tied to the broader context of feminine modesty in that time and place, since the societal norms have changed, so has the halakhah in this matter.

Final Thoughts

A great deal more could be written on this subject from the standpoint of halakhah, but perhaps more important is the over-arching religious philosophy connected to it. In other words, what are we trying to accomplish and what reality is before us? These are central questions that demand an answer.

When women are asked why they cover their hair today, they usually respond that it has to do with “tznius” (modesty), but when they are asked how wearing a wig – or even covering their hair in the first place – makes them more modest than the next woman who doesn’t, most women will respond that they do not think that a woman with uncovered hair is necessarily “not tznius” or immodest at all. Instead, they propose new definitions of modesty, such as “modesty does not mean being unattractive or hiding beauty” which of course cannot be true as this is exactly what the concept of modesty was in the ancient world, and to a certain extent it still is. In fact, the word for “modesty” (צניעות) comes from a root meaning “hidden” or “to hide.” Other times, women will express how covering their hair is a personal choice that helps remind them of their “submission to God.” This certainly a nice and meaningful idea, but really has no source in Hazal. Lastly, and this is especially true when discussing wigs, women often give kabbalistic reasons why they cover their hair. All of this is to highlight the fact of Rav Messas’ assessment that the status of women’s hair in our modern world has completely changed from how it was viewed socially in previous eras and in ancient times. Because it is not seen as anything other than a personal religious choice, one which no longer contains any real moral value – only social implications – new reasons for continuing the practice of covering the hair in public needed to be sought out.

This is the reality in front of us. And so the next question is: What is the goal given this reality? Is it to re-create the past? Is it to re-invent the rationale behind Jewish practices? Is it to pretend that cultural norms in this area haven’t changed? As I have said before, other than examining the halakhah honestly, which is the duty of Jews for any subject in Judaism, I do not believe that women’s modesty really even needs to be on the docket. I have never met an honestly religious woman who was not modest. Women already have an innate sense of propriety within moral cultures and so there seems to be little need for Jewish men to worry about it. Maybe this is why the Sanhedrin never ruled on this matter, but simply upheld “the custom of Jewish women” (i.e. dat yehudit)?

Kol tuv,

YB

To Kippah or Not to Kippah – A Meqori Question

[Note: The below is for information purposes only, as is everything on this site. The decision to act upon any of it or not is the personal decision of the reader and any details regarding the observance of any halakhah – especially those laws which are intricate, complicated, and/or severe – should be discussed with a competent rav.]

While learning with my son through the Qissur Shulhan Arukh – Hazon Ovadyah, we came upon a curious passage regarding the [supposed] modern meaning of kippoth. Now, to be sure, we do not learn the Qissur Shulhan Arukh as halakhah le-ma’aseh, but primarily as a guide for discussing halakhah, as some of the time what it puts forth as law is actually latter-day custom and ritual which one may either take or leave. However, since Hakham Ovadyah Yosef z”l was overwhelmingly driven by the sources and by iqqar diyn in his halakhic approach, this particular edition usually does a fine job of spelling out the basics.

In the section of Orah Hayyim, Hilkhoth Hanhaghath Adham Ba-Boqer (siman alef – siman zaan), I encountered the following statement:

TEXT

גילוי הראש לאנשים אינו אסור מן הדין ואין בזה משום בחוקותיהם לא תלכו אלא מידת חסידות היא לכסות את ראשו אולם בזמנינו שהחופשיים הולכים ברשות הרבים בגילוי הראש אדם שהוא דתי עליו להזהר במשנה זהירות לכסות ראשו תמיד שיש בזה יותר ממידת חסידות כי הכיפה שעל ראשו היא לסמל ולמופת שמעידה עליו שהוא דתי

TRANSLATION

“Bareheadedness (giluy ha-rosh) for men is not halakhically prohibited, and there is no relationship between not covering one’s head and the Torah prohibition of ‘you shall not walk in their statutes’ (cf. Wayyiqra 18:3). Rather, it is noted [in the sources] as a practice of the exceptionally pious (middath hasiydhuth). However, in our times where secular people walk around in public bareheaded, it is incumbent upon a religious man to be careful in following the advice of the Mishnah that advises one to cover their head always because there is something more in covering the head than just an exceptionally pious practice, for the kippah upon his head is a symbol and a sign that testifies concerning him that he is [properly] religious…”

Upon reading this, my son and I were both struck with the vast assumption that the final line was making and how, for the most part, it was simply untrue. The kippoth on many people we have encountered in the religious Jewish world are simply not a “symbol and a sign” that they were religious. It seems that in many cases the kippah on the heads of “frum” Jews “testifies” about them, but this testimony is nothing more than `eduth sheqer. With so much blatant dissonance between perceived values and the significance attached to kippoth, I think it is an important question to ask what actual purpose they serve.

In our times, far from being an assurance of actual piety, the kippah has become little more than a sectarian I.D. badge. And I would further contend that, because the Haredi-Hasidic world has decided to focus so much on external modes of dress while allowing spiritual and moral bankruptcy among many of their members, the kippah has essentially become meaningless as an indication of yirath shamayim and instead serves in most cases to project false piety. So it behooves us, in my opinion, to ask the fundamental questions of who, when, where, why, and how Jewish men are supposed to cover their heads after it has been clarified whether Jewish men are even required to cover their heads at all. And, as with most halakhic discussions on this site, we will begin with the statements of Hazal.

Passages from the Gemara

keffiyeh-sudar

A Jordanian Arab wearing a keffiyeh, a garment essentially identical to the sudra/sudar mentioned in the Gemara.

Masekheth Berakhoth 60b – Gives the nosah for the berakhah of “spreading one’s sudar upon his head” as “oter yisra’el be-thif’arah – who crowns each Jew with beauty.” The nosah found in the siddur of Rav Saadyah Gaon, however, is “‘otef yisra’el be-thif’arah – who wraps each Jew with beauty” and he instructs that the berakhah should be said upon donning a [main; outer] garment that is exempt from ssissiyoth (Siddur Rasag, p.89). A sudar that is not too large may be such a garment (cf. Rambam, Mishneh Torah, Hilkhoth Ssiyssiyth 3:1). Giving the text of a blessing without an explicit directive to wear a particular garment carries with it the strong implication of “if” a person chooses to wear such a garment, then they must pronounce the appropriate blessing, but if they choose not to, then they [obviously] do not need to do so. However, there is nothing in this Gemara that would suggest that it is required for Jewish men to wear a head covering.

Masekheth Shabbath 118b – Among various hakhamiym stating why they felt that they merited to greater spiritual reward(s), Rav Huna is recorded as saying that his reward will be due to the fact that in his life he never walked even the distance of four cubits with a bare head (giluy ha-rosh). This, too, does not mandate that Jewish men cover their head, and it shows that Rav Huna’s practice was a matter of personal piety, not a universal law.

Masekheth Shabbath 156b – Perhaps the central reference to covering the head within the talmudhiym, in this passage astrologers are said to have informed the mother of Rav Nahman bar Yisshaq that he is destined to become a thief. Because of this his mother famously told him, “Cover your head so that the fear of Heaven will be upon you, and request [Divine] mercy.” The Gemara says that Rav Nahman was unaware of the reason for her instructions (apparently she did not tell him about the astrologers) and that one day while sitting bareheaded under a fig tree belonging to someone else he was so overcome by temptation that he climbed the tree and began eating a cluster of figs using just his mouth. This passage does not address the covering of the head being required, in fact it indicates again that most Jewish men did not cover their heads. However, doing so – when coupled with prayer – can be a tool for personal development and mussar.

Masekheth Qiddushiyn 29b – Rav Hisda is praising the person of Rav Hamnuna, his friend, to Rav Huna. Rav Huna says that when Rav Hamnuna visits he would like to meet him. Upon his arrival, Rav Huna noticed that Rav Hamnuna did not wear a sudar and when he asked him why he didn’t cover his head, Rav Hamnuna responded that the reason was because he was not yet married. Rav Huna is then said to have turned away from him, telling him not to appear before him again until he was married. This Gemara indicates two things: [1] that in some parts of the Jewish world in the times of the Amora’iym men did not cover their heads at all until they were married and [2] that appearing before hakhamiym with an uncovered head was considered disrespectful in the opinion of some, but not all.

Masekheth Qiddushiyn 31a – As mentioned in Masekheth Shabbath, Rav Huna, the son of Rav Yehoshua, is said to have not walked even the distance of four cubits because he stated that he believed that the Shekhinah (the “presence” of God; a created light sometimes accompanied by other physical phenomena to indicate holiness and/or blessing – NOT a manifestation of the Divine itself) resided just above his head and he wanted to be reverent. Again, no directive for all Jewish men to cover their heads.

There are other instances in the talmudh where kisuy ha-rosh (“covering of the head”) is mentioned in passing, but these are the main ones that are generally referenced by the literature. And, as is clearly seen, no universal directive for Jewish men to cover their heads exists as a matter of law.

The Opinion of the Rambam

The Rambam essentially codifies the sentiments expressed in the above sections of Gemara and relates them to the practices of the talmidhey ha-hakhamiym in which they engage due to their exalted status in Jewish society (cf. Hilkhoth De’oth 5:10[6]). In the Moreh HaNavokhiym (III:52), he relates similarly to covering the head, again calling it the practice of Torah scholars, but also noting that – metaphysically – it is a recognition that the Shekhinah hovers just above the head of a person. His reference there is specifically to the spiritually elite who are on a high level of personal piety.

There is one place in the Mishneh Torah where the Rambam requires that the head be covered – during tefiyllah and especially as shaliyah ssibbur (cf. Hilkhoth Tefiyllah 5:5). This requirement is based on the explicit directive in this regard in the minor tractate Masekheth Soferiym (14:15). However, the Rambam is not referring to a kippah, but rather the covering of one’s head with a talliyth gadhol.

The opinion expressed by the Rambam is generally considered as normative across the board, encompassing the views of both Ashkenazi and Sefaradi rishoniym.

The Opinion of the Taz

The Turey Zahav (pop. “Taz” – Rabbi David HaLevi Segal, c. 1586-1667) was a Polish rabbi whose commentary on the Shulhan `Arukh by the same name is one of the central works reprinted since the 17th Century. Segal was likely an admirer and believer in the false messiah, Shabbetai Tzvi (yimah shemo wa-zikhro), although he passed away before the entirety of his pseudo-messianic charade came to light.

In his comments on Orah Hayyim 8:3, the Taz states that it is forbidden halakhically to uncover one’s head – even for a moment. His reasoning is that being bareheaded is, in his view, an explicit practice of the non-Jewish nations and their cultures, being therefore a violation of Wayyiqra 18:3, which says, “be-huqqotheyhem lo telekhu – in their statues you shall not walk.” Although Rav Mosheh Feinstein z”l rules based on the strict opinion of the Taz that one should do their best to keep their head covered whenever possible (cf. Iggeroth Mosheh, Orah Hayyim 1:1), most authorities – including Rav Feinstein himself – reject the position of the Taz and instead maintain that wearing a kippah is a matter of custom, not law, and that covering the head in general is a middath hasiydhuth for men and is not a halakhic requirement.

The Coup de Gr”a

Perhaps the most famous opinion on the matter is that expressed by the Gaon of Vilna (pop. “Gra” – Rabbi Eliyahu of Vilna, 1720-1797). After examining all of the aforementioned passages and opinions, the Gr”a states emphatically that there is never a halakhic requirement for any Jewish man to cover his head, even while praying. His conclusion (as found in Biur HaGr”a, Orah Hayyim 8:6) is as follows:

TEXT

Biur HaGra OH 8-6 A

Biur HaGra OH 8-6 B

TRANSLATION

“The fundamental principle of the matter is that there is not a prohibition at all to have an uncovered at any time. Only in front of great Torah scholars and also during prayer is it the astute thing to do from the standpoint of proper character development (mussar). And the rest of the day [i.e. outside of prayer and standing before Torah scholars] is only for those holy ones who stand continually before HaShem.”

The last line is meant as a reference to those who, of their own personal piety, decide to cover their heads continually in imitation of those hakhamiym of the Gemara who were said to have done likewise. But the reiteration of the sources by the Gr”a, and his exposition of them, is generally taken as iqqar ha-diyn, as was initially stated above by Qissur Shulhan Arukh of Hakham Ovadyah Yosef z”l.

What to do?

Let me be perfectly clear: I am NOT suggesting that anyone change their current practice. I am not on a campaign to have anyone remove their kippah. However, what I am certainly suggesting is that we see kippoth for what they are – a Jewish custom that is both expedient and astute in certain religious and social contexts, but also possessing the potential (under the current general mindset) to deceive. Therefore, kippoth are not “meaningless” as a symbol of Jewish identity in and of themselves, but they are “meaningless” as a tool for one Jew judging another.

I was once learning with a close friend of mine – who softly identifies as “Haredi” – and in the course of our discussion, the subject of wearing a kippah came up. My friend related that his rav, a prominent Haredi-Hasidic rabbi under whom he learned in yeshivah for years, once stated emphatically that if a Jew does not wear a kippah in public, then he may be assumed to be a qal (“a lightweight,” i.e. someone who is lax in their observance of the Torah and halakhah; in other words, such a person cannot be trusted with kashruth or other religious duties). I was taken aback. “Just like that?” I said, “Without any halakhic basis or personal knowledge of the individual?!” My friend almost immediately realized how harsh and potentially damaging a statement that was and started to try and find a justification for it. I told him that his rav had no right to classify good Jews as sinners without sound halakhic basis for doing so. I further told him that if his rav truly upheld such a position, then ironically it was he himself that was the “qal.” To treat someone as a sinner when they are not – or for a contrived reason not based in halakhah – is the classic definition of siynath hiynam, or “baseless hatred.”

There is a fear, I think, that if rabbis assert the actual laws regarding kippoth and headcovering in general that people will become even more assimilated into non-Jewish culture and eventually leave Judaism as a result. I have seen many great rabbaniym, including Rav Ratson Arussi shlit”a, assert that today “it is different” and that we are now obligated by popular [Haredi-Hasidic] custom to cover our heads, especially when making a berakhah or mention a Divine Name, even though no such halakhic obligation exists. But this begs the question that if not wearing a kippah was somehow some sort of a fast track into apostasy, why didn’t either Hazal, the Geoniym, or the Rishoniym address it? With all of the persecutions and the outright practices of idolatry by the non-Jewish nations around them which historically led to assimilation and apostasy among Jews, yet never was there a decree by Hazal made that Jewish men need to cover their heads in order to solve the problem. And if they did not see it as a solution, then why should we?

The fear is that as secularism encroaches daily upon our faith and our morality, we need every bit of sanctity and personal piety that we can get as religious Jews. Ergo, so this line of thinking goes, giving orthodox Jews the room to choose whether they will wear a kippah or not puts us in danger of losing spiritual ground.  We must make a para-halakhic decree and force everyone to abide by it! In my humble view this is a mistaken philosophy. Not mistaken as in a misunderstanding of the sources, has wa-shalom, but rather a misunderstanding of social reality. As noted above, the orthodox world has unfortunately developed into a situation where dress, not (or, at least more than) deeds or manners, dictate one’s level of devotion to Judaism, and where the presence of a kippah – or lack thereof – can determine how someone will be treated and how their family will be treated. Even the mere color or style of a kippah leads others to make grotesque personal judgments – all completely divorced from an actual examination of moral character. Le-`aniyuth da’ati, it would serve the spirituality and moral atmosphere of Kelal Yisra’el if such empty, external, and ultimately baseless ways of relating to fellow Jews were discouraged, not reinforced. Not placing so much ill-founded emphasis on the wearing of a kippah would eventually force orthodox Jews to relate to actually relate to the person and not their choice of hat.

A Possible Way Forward?

I think that if a significant number of orthodox Jews returned to the practice of carrying a kippah with them to wear at times of prayer, religious ceremonies, or for showing respect to prominent Torah scholars – while all other times being without one – it would eventually cause the Jewish world to be forced to redefine their values. A person who is meticulously shomer shabbath, is careful with kashruth, and in all other ways follows halakhah, yet does not usually wear a kippah while in public might be a moral force to be reckoned with. Perhaps.

So, “to kippah or not to kippah?” is a meqori question – with an answer that definitely comes out on the side of not needing to wear one, but the social impact such a decision makes is potentially complicated and someone who chooses to take that option should think carefully about this.

More later,

Kol tuv,

YB

Haircuts, Shaving, and Music During the Omer – A Meqori Perspective

No haircuts, no trimming, no shaving, no music, no engagements, no marriages – at least not until “Lag Ba-Omer.” Right? …Not exactly.

We have all heard the story about Rabbi Aqiva’s 12,000 (some say 24,000) students who, because they were not polite enough to one another, were wiped out in some sort of a plague. Because of these incredibly sad events – so the traditional story goes – we need to nationally mourn during these days. But when did this begin? Where is it written in Hazal that we need to abstain from such things? The fact is – it doesn’t.

The section of the Gemara that discusses this incident is found in b.Yevamoth 62b, which says:

TEXT

אמרו שנים עשר אלף זוגים תלמידים היו לו לרבי עקיבא מגבת עד אנטיפרס וכולן מתו בפרק אחד מפני שלא נהגו כבוד זה לזה והיה העולם שמם עד שבא ר”ע אצל רבותינו שבדרום ושנאה להם ר”מ ור’ יהודה ור’ יוסי ורבי שמעון ורבי אלעזר בן שמוע והם הם העמידו תורה אותה שעה תנא כולם מתו מפסח ועד עצרת אמר רב חמא בר אבא ואיתימא ר’ חייא בר אבין כולם מתו מיתה רעה מאי היא א”ר נחמן אסכרה

TRANSLATION

“They said, ‘Rebbi Aqiva had twelve thousand pairs of students from Givath to Antifras and all of them died at once because they did not conduct themselves with honor one to another, and the world was desolate until Rebbi Aqiva came to our teachers in the South and taught them [Torah]. Those masters were Rebbi Me’iyr, Rebbi Yehudhah, Rebbi Yosiy, Rebbi Shim’on, and Rebbi Eli’ezer ben Shammua. And they upheld the Torah in that [difficult] hour. It was taught by a Tanna that all of them died between Pesah and Shavu’oth. Rav Hama bar Abba, or possibly Rav Hiyya bar Abiyn, All of them died an evil death. What was it? Rav Nahman says, Asphyxiation.”

Despite the fact that Rav Sherira Gaon (in his well-known Iggereth) describes the cause of death as being shemada (i.e. the Aramaic form of “shmad,” or government murder of Jews), and not askarah (“asphyxiation”) – which lends itself more plausibly, in the view of some scholars, that the original reference is to the death of Rebbi Aqiva’s students who fought during the Second Jewish Revolt under Bar Kokhvah and perished at the hands of the Romans – this passage leaves us with several questions.

[1] Where does it say that Kelal Yisra’el needs to nationally enter a state of mourning due to this?

[2] Which students died between Pesah and Shavu’oth, the twelve thousand pairs or the rabbaniym from the South who arose after them?

[3] Is the story – as told in the Bavli (and the parallel passage in Bereshiyth Rabbah) – midrashic, and therefore metaphoric, in nature or are we to take it literally? It doesn’t seem likely that Rebbi Aqiva would have produced students who were so terrible that they deserved Divine destruction to the point of endangering the Torah.

[4] If it is obvious that the import of this passage is to cause Kelal Yisra’el to actively mourn during sefiyrath ha-omer, then why does the passage not just say so? And, further, why do neither Rashi nor Tosafoth discuss it there on the daf? In fact, the Mahzor Vitry does not mention this practice [i.e. to mourn] at all.

[5] The Rambam never mentions such a thing as national [quasi] mourning for any event during the omer. When he mentions other later customs, why doesn’t he mention this one?

As far as being meqori is concerned, a few of the Geonim mentioned in their writings that due to the tragedy of Rebbi Aqiva’s students some did not contract marriages during the omer. And this is probably a good idea, although it is not a halakhah that was ever mentioned, or even a suggested practice, in the Mishneh Torah. Refraining from the contracting of marriages during the omer likely falls under being respectful to Jewish communal traditions. But refraining from music, haircuts, or shaving – things which are private – are certainly mutar according to halakhah.

According to the Rambam, there is no directive to mourn in this way except for actual halakhic mourning (such as during shiva and sheloshiym – Hilkhoth Evel 6:1-3) and the week in which Tisha Be-Av falls (Hilkhoth Ta’aniyoth 5:6). And so, that which is permissible throughout the year is halakhically permissible during sefiyrath ha-omer.

The entire timbre of the omer period seems to have been turned on its head; from a time of joy and celebration to a time of sadness and mourning. Shavu’oth is referred to as Assereth (עצרת) and as “the” assereth to Pesah. This designation means that Shavu’oth is meant to be the official end (read, culmination) of the Pesah celebration in the same way that Sheminiy Assereth is the capstone to Sukkoth in the Fall. This should strongly indicate to us that the omer is supposed to be a time of quasi-celebration for Kelal Yisra’el, not mourning and sadness at all.

This is yet another example of asceticism and kabbalah obscuring the true meaning of the Torah and the halakhah. In fact, it is a misswah to trim your beard and cut your hair bikhvodh shabbath, which is why Rav Soloveitchik z”l and others took a “lenient” position with regard to the custom of not shaving or taking haircuts during the omer. For those who are interested in his position on the matter, it is easily located in sources written about Rav Soloveitchik and his teshuvoth on various halakhic questions.

In the next post, I will talk about the fake holiday of “Lag Ba-Omer” that has led to some idolatrous practices (halilah) and should, in my opinion, be avoided as much as possible.

Enjoy your haircut and your tunes,

YB

[Note: The above is for information purposes only, as is everything on this site. The decision to act or not act upon any of it is the personal decision of the reader and any details regarding the observance of any halakhah – especially those which are intricate and/or are severe – should be discussed with a competent rav.]

Counting the Omer – A Meqori Perspective

Sefiyrath Ha`Omer – A Relatively Simple Misswah

The Torah, in Wayyiqra 23:15, commands us as follows:

TEXT –

וּסְפַרְתֶּם לָכֶם מִמָּחֳרַת הַשַּׁבָּת מִיּוֹם הֲבִיאֲכֶם אֶת-עֹמֶר הַתְּנוּפָה שֶׁבַע שַׁבָּתוֹת תְּמִימֹת תִּהְיֶינָה

TRANSLATION –

“And you shall count for yourselves, [beginning] from the day after the [festival] sabbath, from the day that you bring the `omer-offering of waving – there shall be seven complete weeks.”

From this pasuq, Hazal taught – among other things – that each male of Kelal Yisra’el, beginning with the second night of Pesah, needs to begin counting (vocally, and with a berakhah) seven weeks (49 days), after which would be the festival of Shavu`oth. Although we cannot currently offer the `omer, we nevertheless count the days and weeks as was done in the days of the Beth HaMiqdash.

What Does It All Mean?

Usually around the time of sefiyrath ha-`omer we begin hearing the kabbalistic buzz of latter-day interpretations of these 49 days, seven weeks. Everything from combining supposed “sefiros” to “tikkun ha-middos” is mentioned in Jewish books and religious newspapers. Some even relate it to the “49 levels of tumah” that are mentioned in the Tiqquney Zohar.

The truth, however, is that the Gemara merely states that it is “zekher le-miqdash – a remembrance of the Temple” (b.Menahoth 66a) and nothing further. The Rambam in the Moreh HaNavokhiym (III:43) expands on this idea and tells us that it is a “countdown” to the anniversary of the Matan Torah (“the Giving of the Torah”) and that, just as one counts the weeks, days, and hours before the arrival of a dear friend, so also does the Jewish nation build anticipation toward Shavu`oth by counting these seven weeks of days.

Traditionally, the anticipation of receiving the Torah “anew” – as it were – has generated a focus on teshuvah and the improvement of the miyddoth (character traits). This is an excellent idea, but unfortunately it has taken on a flaky mystical focus and any real personal growth is usually overshadowed if not forgotten. Le-`aniyuth da’ati (in my humble opinion), I think that the best and most productive tradition in this vein in that of learning a chapter a week of Pirqey Avoth. I also would HIGHLY recommend learning a chapter each day of Hilkhoth De`oth (laws of character development) from the Mishneh Torah, and I consider it no accident that it too contains exactly seven chapters.

Focusing on one’s miyddoth before receiving the Torah is completely appropriate since the halakhah states that Torah is only to be taught to a student whose character is refined and whose deeds are good (cf. Mishneh Torah, Hilkhoth Talmudh Torah 4:1).

The Rambam in the MT: Just Two Short Halakhoth

Did you forget to count at night? Did you forget to count an entire day? Did you forget more than one day? Do you make a berakhah during the day? Can you make a berakhah if you forgot a day? These and other considerations are the common discussion points of the obligation to count the `omer today. The entire conversation has become one infused with many doubts due to a lack of confidence to decide the actual halakhah and has also become subsumed – as have many areas of Jewish law – in kabbalistic sentiments and concerns.

For all of the questions, doubts, and supposed halakhoth that can be found related to sefiyrath ha-`omer – comprising a veritable mountain – the Rambam in the Mishneh Torah dedicates only two to the subject. Two short halakhoth, placed in Hilkhoth Tamiydhiyn Umusafiyn (7:19-20 in the Yemenite [i.e. Correct and Uncorrupted] Editions), give the definition of one’s obligation, and they are as follows:

TEXT –

יט מצות עשה לספור שבע שבתות תמימות מיום הבאת העומר שנאמר “וספרתם לכם ממוחרת השבת” ומצוה למנות הימים עם השבועות שנאמר “תספרו חמישים יום” ומתחילת היום מונין לפיכך מונה בלילה מליל שישה עשר בניסן שכח ולא מנה בלילה מונה ביום ואין מונין אלא מעומד ואם מנה מיושב יצא

כ מצוה זו על כל איש מישראל ובכל מקום ובכל זמן ונשים ועבדים פטורין מספירת העומר וצריך לברך בכל לילה אשר קידשנו במצוותיו וציוונו על ספירת העומר קודם שיספור מנה ולא בירך יצא ואינו חוזר ומברך

TRANSLATION –

19 “It is a positive commandment [of the Torah] to count seven complete weeks, from the day that the `omer is first brought, as it says, ‘And you shall count for yourselves [beginning] from the day after the [festival] sabbath.’ And the commandment includes the counting of the days along with the weeks, as it says, ‘You shall count fifty days.’ And we count at the very beginning of the day, therefore we count at night, from the night of the sixteenth of Nisan onward. One who forgot and did not count at night should count during the day.

And we do not count except when standing [le-khatehilah], but if one counted while sitting then [bedi`avadh] he fulfills his obligation.

20 “This commandment is an obligation for every man of [Kelal] Yisra’el, and it applies in every place and in every time. Women and servants are exempt from sefiyrath ha-`omer. It is necessary to make the berakhah each night, ‘who has sanctified us with his commandments and has commanded concerning the counting of the `omer‘ before one counts.

[Bedi`avadh] if one counted without making a berakhah, he [nevertheless] fulfills his obligation and he does not go back and make the berakhah.”

The Rambam seems to hold the following:

[1] Only men are obligated to count the `omer. Women may [and likely should] count, but without a berakhah. There are opinions that include women fully in the obligation and allow her to count with a berakhah, but this position is not that of the Rambam and I myself do not hold this way. Although, as an aside, I have daughters who hold like me and do not count with a berakhah, another who does not count at all, and another who counts with a berakhah. It is important to me that my children do not feel too separated from their religious Jewish peers as that can be psychologically damaging. If I make distinctions between our family and others in our community in terms of practice, it is only in very foundational issues and the vast majority of the time these distinctions consist of hashqafic tenets (e.g. monotheism, superstitions, `avodhah zarah, “rebbe” worship, “gadolatry,” etc.) – making a berakhah when their hearts are happy and full to do the will of God, especially when they have on whom to rely, is not something that I insert myself too strongly into. I give them a pleasant and non-threatening explanation of how I hold halakhically and leave it at that. (This is good advice for the many meqori parents out there who tend to be too exacting and harsh on their children – believe me this does critical damage to their little psyches!)

[2] Both weeks and days must be enumerated. This is normative halakhah today and needs no explanation.

[3] Counting begins the second night of Pesah. This is normative halakhah today and needs no explanation.

[4] Counting is [le-khatehilah] done at night. This means after complete nightfall (sseth ha-kokhaviym) and no earlier. If one forgot to count at night, then they should still count during the day – and apparently with a berakhah. Although the position of the majority of later rishoniym and poseqiym is to count during the day only without a berakhah, there were Geonic opinions (such as the Halakhoth Gedholoth) who did not object to making the berakhah even during the day. It seems that this was also the opinion of the Rambam. In the style of the Rambam, if he felt that making a berakhah during the day was prohibited, then he would have said so – and he does not. It is important to note that Mori Yusef Qafih z”l interprets the Rambam as being of the position that the berakhah is not said when counting during the day, and since we do have a general halakhic principle of safeq berakhoth le-haqel (“in a doubt of the obligation to make a berakhah we always refrain”), perhaps this is the best course of action. After all, the Rambam states explicitly that the berakhah does not prevent one from fulfilling his obligation.

[5] Counting should be done while standing. As is clearly stated above.

[6] The berakhah is – ברוך אתה ה’ אלהינו מלך העולם אשר קדשנו במצוותיו וצונו על ספירת העומר

Forgotten Days

Although the Rasa”g (Rav Sa`adyah Gaon) in his siddur rules that one may continue counting with a berakhah through the entire seven weeks of the `omer, he does note that if one forgets to count the very first night then he cannot continue counting at all with a berakhah. This is because of his diyyuq of the word “temiymoth – complete” from the pasuq in Waiyyiqra (p. 155 – קנה).

The position of the Rambam in his teshuvoth (as brought there by Mori Yusef Qafih z”l in his commentary on the MT) is that one who forgets on any night, even the first, even if he misses multiple days, may upon remembering (or simply doing teshuvah, whatever the case may be) continue to count throughout the entire seven weeks with a berakhah. The Rambam adds, however, that one who forgets a day may not say the word “temiymoth – complete” in the declaration made on the last night of the `omer. The word “temiymoth – complete” is not said in the nosah of the Baladi Yemenite tradition, but rather the Aramaic word “shalmey – complete,” and it too should be avoided by one who forgot to count for an entire day during the `omer.

Enjoy your countdown to Shavu`oth. I will be posting about the contrived “holiday” of “Lag BaOmer” in the next post.

Until then, berakhoth le-kulam.

YB

[Note: The above is for information purposes only, as is everything on this site. The decision to act or not act upon any of it is the personal decision of the reader and any details regarding the observance of any halakhah – especially those which are intricate and/or are severe – should be discussed with a competent rav.]

Pesah Matters – Meqori Perspectives – Part III: Dishes, Ovens, Beliy`ah, and Shopping

[Note: The following is for information purposes only, as is everything on this site. The decision to act or not act upon any of it is the personal decision of the reader and any details regarding the observance of any halakhah – especially those which are intricate and/or are severe – should be discussed with a competent rav.]

My apologies for the long silences between posts lately on Forthodoxy. Between the needs of my family and the demands of university, my schedule has been inundated almost literally from dawn until dusk, leaving me little or no time to post. Hopefully after the semester draws to a close over the next month I will be able to get back to regular bi-weekly posting.

That being said, what I had initially planned to do for this post was a bit more detailed in nature: comparing the halakhoth of bishuley goyim (when obtaining used utensils from a non-Jew), basar be-halav (kashering utensils between uses of meat and dairy), and hagh`alath keliym (kashering utensils from use with hamess for use during Pesah) in the Mishneh Torah to illustrate the similarities and the differences between them. The current practices of kashering come from the Ashkenazi tendency to be mahmir (in nearly everything) and to simply equate all kashering with the laws of hamess, and to equate the laws of tumah and taharah with kashruth. While the interest of these innovations is halakhic “safety,” doing so has spawned numerous urban myths in the Jewish world, as well as heightened anxiety over mistakes and non-issues to almost a breaking point, illustrating again that being “holier than Hazal” only generally causes problems, not improvements.

Although I would like to write a very detailed post on the subject, it will have to wait for now. Instead, I am going to list some practical points with regard to cleaning and the preparation of dishes for Pesah. Hopefully, the following short list will be helpful and will serve to dispel a few myths.

Hahmarah On Pesah

I want to begin by making something absolutely clear: there IS certainly such a concept as being more stringent on Pesah than with regard to kashruth during the rest of the year. We can see this from the fact that while eating a kezayith of a meat and milk mixture would bring a punishment of malqoth by the court (cf. Mishneh Torah, Hilkhoth Ma’akhaloth Assuroth 9:1), the eating of the same amount of hamess (volitionally) brings a punishment of kareth (Hilkhoth Hamess Umassah 1:1). By further contrast, one who cooks food in used dishes of a non-Jew in which was cooked neveloth is only possibly punished with makkath marduth (Hilkhoth Ma’akhaloth Assuroth 17:26) – and possibly not at all. Being that there is such a severe spiritual penalty for eating hamess on Pesah, Hazal took measures to ensure a greater level of kashruth – even beyond that which is practiced during the rest of the year.

But this is the point – it was Hazal who made these determinations. Not only is it unnecessary to go beyond them, but we do not have the authority to do so. The hahmarah (stringency) due during Pesah is already built into the halakhah. The idea that there is the halakhah and then a “higher level” composed of OCD and outlandish concerns is simply false and stems from the false dichotomy between “torahs” presented by the kabbalah and the Zohar. Must it constantly be pointed out how much damage the idea of a “torah” beyond the Torah has done? Shabbetai Zvi (yimah shemo wa-zikhro) anyone?

Dishing It Out

  1. Glass does not absorb – This includes Pyrex, Corningware, Corelle, etc. and they do not absorb either substance or taste. As such, they do not need special kashering for either Pesah or use with meat and dairy. All that is necessary is to scour them with a harsh detergent or bleach solution until they appear “new.” Again, as I have said before, absorption (beliy`ah) is a visibly perceptible process (cf. b.`Avodhah Zarah 33b-34a). There is no such thing as, “You may not be able to see it, smell it, or taste it, but believe me it’s there” when it comes to kashruth. This understanding of the halakhic nature of glass also happens to be the position of the Shulhan `Arukh (OH 451:26) and nearly all the Tosafoth. The Rambam and others only discussed glass serving utensils, not those used for cooking, since cooking or baking with glass did not begin until the 20th century when an oven-safe glass was invented. However, since we can visibly see that no matter what exposure in a kitchen setting it is subjected to, glass cook/bake ware can always be restored to being completely transparent, enabling us to thereby conclude that our new types of modern glass do not absorb either.
  2. Glazed ceramic does not absorb – Like glass, glazed ceramic also does not absorb. Although this is the case for essentially the same reasons as it is for glass, there are some cautions: [i] the glazing should not be cracked. If it is, then it has the status of kley heres (earthenware) and cannot be kashered for Pesah, and [ii] since it cannot be looked through as can glass, great care must be taken to remove all food particles and residue from glazed ceramic dishes before use on Pesah.
  3. Stainless steel does not absorb – In this video, as well as this teshuvah by Rav Ratzon `Arussi, the position of Rav Dov Lior, chief rabbi of Kiryath Arba`, is explained, i.e. that stainless steel is like glass in that it does not absorb. Although most modern poseqim are hesitant to rule this way practically (Rabbi David Bar-Hayyim being a notable exception), there have been many meqori’im who have used stainless steel utensils for both meat and dairy with only a thoroughly cleaning between each use for decades simply due to the scientific nature of stainless steel itself, i.e. that it does not – and indeed cannot – absorb. Using the same rule as noted above, that beliy`ah is a visible phenomenon, scouring stainless steels pots with steel/copper wool and harsh cleaners prior, being careful to remove all traces of food, certainly makes such utensils kasher le-Pesah. One final note about pots and pans: any sort of non-stick coating, etc. makes the utensil(s) not kasherable for Pesah.
  4. Knives may be scoured or boiled – As I have posted previously, knives only need libun gamur when they have been used as a kliy rishon for roasting (as they often were in the ancient world), not when used as we do today. Scouring them and then boiling them in a pot of water (as usually done) is fine, as long as all food can be removed from around the handles. Otherwise such residue needs to be rendered completely inedible – even by a dog (Mishneh Torah, Hilkhoth Hamess Umassah 4:10) – by putting bleach on it (SEE HERE FOR A PRACTICAL OVERVIEW).
  5. Please, for the love of God, do NOT kasher your refigerator – Every year there are people upon whom the Haredi-Hasidic establishment prevails to pour boiling water on every surface on the inside of their refrigerator. This is ridiculous. Neither do your countertops need such scalding treatment. A simple wiping out and thorough cleaning is all that is needed. It is cold and no food is ever cooked in it. Neither is food placed directly onto the shelving without a container (eww).

Out of The Frying Pan and into… The Oven

Cleaning and kashering ovens seems, in the view of many, to be the most daunting task of Pesah kitchen preparation. This, however, does not need to be the case. The Talmudic sources and the Rishoniym discuss ovens on Pesah for many reasons, not the least of which are the baking of massoth and the roasting of the qorban pesah. Under the circumstances of having clay ovens with small interiors, all of these rules would apply. Further, it was the common practice to bake bread, etc. by sticking the dough to the walls of the oven itself – something we also do not do in our modern ovens. For a highlight of several implications of the differences in our modern ovens versus those in the times of Hazal, see `Arukh HaShulhan 92:55 and my post here.

Kashering the oven for Pesah means simply cleaning it with a harsh oven cleaner, wiping and scrubbing the stovetop, and putting it through a self-cleaning cycle. The only concern about the stovetop is that one will set a hot ladle down on it during Pesah while cooking. This can be solved by either covering the middle with a piece of foil (yes, I said it) or putting a kosher plate/trivet there until the end of Pesah. The fear that charred ash (that used to be food) will somehow jump off of the range and up into a pot is ludicrous. Clean it thoroughly and take proper, reasonable precautions. After that, enjoy your Pesah.

Shopping

Like many things, I wanted to explain this in detail, however I only have time to give you the facts. Many people have become convinced that all products bought for use during Pesah must have a KLP certification. This makes Pesah shopping proprietary and extremely expensive. The fact is that there are only a few products that require such certification and the vast majority of your shopping for the week may be done at your regular grocery store using regular products. Yes, it’s true.

The sons of Rav Yizchak Abadi work tirelessly to confirm the permissibility of a host of products and ingredients for Pesah. They compile their efforts into a list that may be purchased for PDF download HERE, as well as posting thousands of questions on the subject HERE. I would encourage anyone to check out their site and find out just how reasonable your Pesah shopping can be. My kids think that their ability to eat Rice Chex cereals on Pesah is awesome.

Okay, more later. Must run.

Hagh Sameah,

YB