Category Archives: Minhag

The “Minhag” to Not Eat Meals on Friday

I assume that for many people, Friday night dinner is often the first meal eaten in about 24 hours.  We all know the experience – you start cooking Thursday night, and you either snack on what you are preparing for Shabbat or grab a quick bowl of cereal in between doing errands, or something of the sorts.  Friday, especially during the winter, is even worse.  Recently I discovered a Meiri that seems to provide Halachic basis for this “minhag klal yisrael”.  Continue reading The “Minhag” to Not Eat Meals on Friday

Rosh HaShanah All Year Round

Now that Yom Kippur is over, in many ways we return to our normal routines. While Sukkos is just around the corner and so we still have a great many things to do which are not a part of our daily lives, nevertheless, davening has returned to normal, there are no more extra tefillos in the middle of the night, and the constant pressure to do teshuvah has receded. The immediate question which we should be asking is: “what can I take from the last ten days to help me for the rest of the year?” The Alter Rebbe in the Tanya gives an interesting answer:

תניא איגרת הקודש פרק יד
אך הענין יובן ע”פ מ”ש ה’ בחכמה יסד ארץ שיסוד הארץ העליונה היא בחי’ ממלא כ”ע והתחתונה היא ארץ חפץ המכוונת כנגדה ממש ונק’ על שמה ארץ החיים הנה הוא נמשך מהמשכת והארת חכמה עילאה מקור החיים העליונים כדכתיב החכמה תחיה בעליה וכו’ והארה והמשכה זו היא מתחדשת באור חדש ממש בכל שנה ושנה כי הוא יתברך וחכמתו אחד בתכלית היחוד ונק’ בשם אוא”ס ב”ה שאין סוף ואין קץ למעלת וגדולת האור והחיות הנמשך ממנו יתברך ומחכמתו בעילוי אחר עילוי עד אין קץ ותכלית לרום המעלות למעלה מעלה ובכל שנה ושנה יורד ומאיר מחכמה עילאה אור חדש ומחודש שלא היה מאיר עדיין מעולם לארץ העליונה כי אור כל שנה ושנה מסתלק לשרשו בכל ער”ה כשהחדש מתכסה בו ואח”כ ע”י תקיעת שופר והתפלות נמשך אור חדש עליון מבחי’ עליונה יותר שבמדרגת חכמה עילאה להאיר לארץ עליונה ולדרים עליה הם כל העולמות העליונים והתחתונים המקבלים חיותם ממנה דהיינו מן האור א”ס ב”ה וחכמתו המלובש בה כדכתיב כי עמך מקור חיים באורך נראה אור דהיינו אור המאיר מחכמה עילאה מקור החיים (וכנודע לי”ח שבכל ר”ה היא הנסירה ומקבלת מוחין חדשים עליונים יותר כו’) ובפרטי פרטיות כן הוא בכל יום ויום נמשכין מוחין עליונים יותר בכל תפלת השחר ואינן מוחין הראשונים שנסתלקו אחר התפלה רק גבוהין יותר ודרך כלל בכללות העולם בשית אלפי שנין כן הוא בכל ר”ה ור”ה. וז”ש תמיד עיני ה’ אלהיך בה שהעינים הם כינוים להמשכת והארת אור החכמה שלכן נקראו חכמים עיני העדה ואוירא דא”י מחכים והארה והמשכה זו אף שהיא תמידית אעפ”כ אינה בבחי’ ומדרגה אחת לבדה מימי עולם אלא שבכל שנה ושנה הוא אור חדש עליון כי האור שנתחדש והאיר בר”ה זה הוא מסתלק בער”ה הבאה לשרשו. וז”ש מרשית השנה ועד אחרית שנה לבדה ולכן כתיב מרשית חסר א’ רומז על הסתלקות האור שמסתלק בליל ר”ה עד אחר התקיעות שיורד אור חדש עליון יותר שלא היה מאיר עדיין מימי עולם אור עליון כזה והוא מתלבש ומסתתר בארץ החיים שלמעלה ושלמטה להחיות את כל העולמות כל משך שנה זו אך גילויו מההסתר הזה תלוי במעשה התחתונים וזכותם ותשובתם בעשי”ת וד”ל:

Basically, the Alter Rebbe suggests that the blowing of the shofar on Rosh HaShanah brings about a flow of energy and inspiration from G-d (which is stongest by far in Eretz Yisrael) which continues to influence us for the rest of the year. The echoes of the shofar are heard all year round until the last day of the year, something which we symbolize by stopping the blowing of the shofar the day before Rosh HaShanah. That influence is the lasting effect of Asseret Yemei Teshuvah, and it is very much the point of the blowing of the shofar, at least in this piece.

The Alter Rebbe links this inluence specifically to the davening of Shacharis. I don’t have a good reason why it would be linked to Shacharis (except that the shofar is blown in the morning typically, although that does not seem particularly satisfying since the shofar may be blown all day), however, I think that the influence of the Asseret Yemei Teshuvah can be felt palpably in davening every single day. I heard for Rav Moshe Lichtenstein shlit”a once that the first three berachos of shemoneh esreh are contained in the first berachah. When we say the words “hakel hagadol hagibor vehanora” we can see that gadol roughly corresponds witthe first berachah (this becomes stronger when one takes into account the kabbalistic idea of a parallel between gedulah and chesed, and the first berachah is clearly about Hashem’s kindness to our ancestors and to us). The second berachah is parallel to gevurah (it is actually referred to as gevuros). The third berachah is parallel to nora, because it speaks of the awe we fell in out encounter with the divine, and or our urge to praise and our inability to approach. G-d is transcendent and awe inspiring and He controls the world.

I would add to this a further thought. The first berachah continues “gomel chassadim tovim vekoneh hakol vezocher chasdei avos umeivi go’el livnei vneihem lema’an shemo be’ahavah”. Koneh hakol implies G-d mastery over the world. He created the world and therefore He owns it and He control it. This similar to the berachah of malchuyos on Rosh HaShanah which also speaks of G-d’s mastery over the world. Zocher chasdei avos is parallel to the second berachah of mussaf on Rosh HaShanah, zocher haberis. And meivi go’el livnei vneihem lema’an shemo be’ahavah is parallel to the berachah of shefaros which ends on a request that G-d sound his great shofar of ge’ulah and redeem us. If so, we carry the three berachos of mussaf on Rosh HaShanah with us the entire year. Furthermore, those berachos accompany the blowing of the shofar. As such, if we allude to them, we are really alluding to the blowing of the shofar. It is as though we are sounding the shofar for ourselves every day three times before we pray. If Rosh HaShanah is meant to be the moment of Malchus Shamayim which lasts us for the entire year then we tap into it each time we daven, because when we daven we have to be conscious of our standing before the king, and of our dependence upon him.

Are You Too Biased to Poskan for Yourself?

It’s been a while since I summarized my psak shiur, but I’ll try to catch up. In the previous post on this topic, we began dealing with the issue of poskaning for one’s self – when is one qualified, are there different standards for ruling for one’s self than there are for others, etc. The second question is whether even an unquestionably qualified posek should or must refrain from ruling for himself due to bias. In the past, when dealing with the benefits of having a Rebbe (here), we noted that practically it is often good to have an outsiders perspective, both to ensure that you are not too lenient and to ensure you are not to stringent on yourself. Is that a Halachic requirement?   Continue reading Are You Too Biased to Poskan for Yourself?

(Not) Drinking on Purim: A Test Case on the Role of Narrative and History in Psak (Halachic Methodology 20)

My last shiur was both a pre-Purim shiur and a test case in two methodological issues in psak.  It is available here.  We discussed the issue of drinking on Purim.

Without rehashing the entire sugya, as any basic summary will provide the range of positions, I want to make two points.

First, this sugya is a great example of the role that narrative in the Gemara can have in psak (an issue also touched on in a recent shiur by Rabbi J. J. Schachter available.)  As is well known, after the ruling of Rava in the Gemara that מיחייב איניש לבסומי בפוריא עד דלא ידע בין ארור המן לברוך מרדכי, the Gemara then tells the story of when Rava/Rabbah killed R. Zeira in his drunkenness and subsequently resurrected him.  The next year, when he invited R. Zeira to his meal, he was turned down.  R. Zeira declared that “not every year a miracle occurs.” A three way dispute then follows in poskim what the role of this story is on the psak.  Rabbenu Efraim is cited by many Rishonim as ruling that this story shows that we reject the obligation to get drunk on Purim as it can lead to horrible things.  The Eshkol in the questionable Aurbach edition, as well as the Pri Chadash note that one can derive the opposite – if the halacha was indeed rejected, then R. Zeira would not have had reason to fear the following year.  The fact that he did fear meant they were going to get drunk again.  Of course, one could simply respond that Rava never changed his halachic position but R. Zeira indicates that the consensus view opposed him.  [Note that while the Pri Chadash believes that the story supports the position that one should get drunk, because of the terrible things that happen when people get drunk, he rules in accordance with R. Efraim anyways.]  The third possibility is that the story modifies the original ruling – that one should drink but not get that drunk.  Continue reading (Not) Drinking on Purim: A Test Case on the Role of Narrative and History in Psak (Halachic Methodology 20)

Balancing Education, Rebuke, and the Fear of Causing Estrangement

Rabbi Daniel Mann just posted a very sensitive teshuva (here) about a secular Jew whose religious relatives are worried that the more he learns about Judaism, the more likely he will lose his tinok shenishba status and become a Rasha.  I encourage reading his teshuva.  One point that jumps out at me is the inherent tension created by the obligation to educate (or rebuke).  By educating, we provide opportunities for religious growth, but at the same time, we remove the excuse of ignorance from those students who choose to willfully ignore what we teach.  At face value, this flies in the face of the principle mutav sheyiyhu shogegin, it is better that willful sinners remain accidental sinners, a principle that under certain circumstances allows us to refrain from rebuking.  However, it is clear that cannot be the case.  As a community, our goal is to educate and improve the members of our community.  We cannot be held hostage by the possibility that people will choose, despite knowing what is right, to do what is wrong.  Mutav Sheyiyhu Shogegin by definition must therefore be limited. Continue reading Balancing Education, Rebuke, and the Fear of Causing Estrangement

Slippery Slope 3 and Some Thoughts on Globalization in Halacha

One of the questions that has come up several times in the last few days in discussions about the nature of the Slippery Slope Argument and the Halachic process in general is how do we balance the needs of the individual in the context of a community.  This is even more difficult considering the globalization of our community.  I cannot here flesh out the issue entirely, but I just put together a few comments that have been made, and hope to return to the issue in more detail.  Continue reading Slippery Slope 3 and Some Thoughts on Globalization in Halacha

The Slippery Slope Part 2

Thanks to everyone for the feedback on yesterday’s post, which requires a follow-up.  R.  David Wolkenfeld pointed out that R. Yuval Sherlow wrote a piece on the parameters of “The Slippery Slope Argument” (available: here) that makes significant additions to my discussion.   I will try to summarize some of the issues that he raises.

He notes that when deciding whether to make a Slippery Slope Argument, the rules that Chazal set up try to take into account:

1) The likelihood that the sin will be transgressed if fences are not put up.

2) How negative the sin being protected is.

3) Taken together, we then have to determine the cost of setting up the fences.  Meaning, considering how likely it would be for the sin to be transgressed and how bad that would be, we have to consider whether the particular fences being proposed are worth it.  This is true on two levels – too much stringency may make Halacha unbearable and cause people to give up on this Halacha entirely or it might otherwise negatively affect the people involved to an egregious degree.

He compellingly brings several Halachic principles to bear on each of these issues.  I will mention his categories and some main points he makes on them (with some of my own).  Please see his article for more details.

1)      אין גוזרין גזרה על הציבור אלא אם כן רוב הציבור יכול לעמוד בו – we don’t set up a decree if the majority of the community can’t handle it, and in fact, it automatically becomes nullified.

  1. This indicates that if the cost on quality of life is so high that people can’t handle it, the safeguard is illegitimate.

2)      אין גוזרין גזרה לגזרה – we don’t set up safeguards to safeguards.

  1. While this principle is often circumvented, it principle it highlights a few things:

i.      The safeguards are not worth protecting, or in other words, we don’t want to make everything assur just to set up infinite protection for actual issurim.

ii.      If the possible result is several steps removed, the chance is considered low that the negative result we really fear will come about, so we don’t expand the prohibition (my addition).

iii.      If the danger is real, this rule can be circumvented, either by declaring that really we are dealing with one expansive gzeriah, or by saying that in certain cases we are allowed to set up multiple levels of chumrot.  The danger can we significant either because the sin we want to prevent is very serious, or because it is very common (quantity/quality of the sin).

  1. For example, the Kesef Mishna claims that by Niddah we can set up gzeirot l’gzeirot.  Similarly, the Ramban and others say this is what is happening by all the levels of issur set up to prevent intermarriage.

3)      Chazal don’t set up gzeirot for issurim which are not common

  1. This indicates that if the chances the issur will be violated are not significant enough, we cannot justify setting up new issurim.

4)      If we have an alternative method that doesn’t hurt those who would be hurt by the new issur, we choose that one.

5)      The kulot we employ because of hefsed merubeh, or the cases when we choose not to set up chumrot because of hefsed merubeh, indicate we try to avoid the cost when it is too high.

R. Sherlow notes, however, that figuring out when the cost is too high is difficult, and thus it is hard to always judge accurately.

A few other points that I have been thinking about, mostly in response to some very insightful questions by Deborah Klapper:

  • Admittedly, any slippery slope argument makes assumptions about what most people will end up doing if a safeguard is not set up.  This means that there can be people who will face prohibitions that they don’t need.  This is the hard reality of legal systems.  However, it is something that must be taken into account when setting up a fence – is it worth inhibiting those people who could have avoided the real problem without the safeguard, and whose lives are therefore more difficult?
  • When we talk about arguments such as those of R. Moshe Feinstein – those that are both fundamental and slippery slope, we have an added problem.  To take his case, I assume he did not think that every woman who wanted more opportunities was attacking Torah – he just thought a high enough percentage of women had problematic attitudes that he had to oppose the practices that encouraged those attitudes.  This will obviously be difficult for those women who are sincere, making it important for the posek to weigh his decision more carefully and be really careful about how he phrases his decision.
  • Poskim make mistakes in assessing metziut.  One need only look at the debates as to whether a number of given fruit are infested with bugs are bug-free to know that even on relatively innocuous questions the realia is hard to assess.  Kal VaChomer when it comes to predicting the future or correctly reading people’s minds.
  • A posek has a choice whether to make a local decision or a global one, and the complexity of the above issues should factor into which he makes.
  • A posek also has a choice as to make a decision at all or just to set up guidelines.  For example, some poskim, when ruling on a medical decision will consult with doctors, make an assessment of the reality, and then poskan.  Others will present the patient and/or doctor with the halachic parameters and allow them to make the decision as they understand the reality.  The same options exist when it comes to these issues.  However, when making community wide decisions, a posek may have no choice but to make up his mind about the reality as well.
  • With all of the above, I don’t know what to say if one thinks the reality has been read wrong.   I really don’t know what to say so I won’t presume to guess.  And yes, I am evading relating to the Gemara that R. Klapper thinks is the most dangerous to the notion of psak.

I understand that these issues and not just theoretical but very practical.  For that reason, I am even more careful not to say anything definitive, but rather to try to understand the factors the best I can.  Thanks for the feedback and the opportunity to sharpen my thoughts.  I am still in the process of formulating my opinions.

The Slippery Slope Argument… (Halachic Methodology 17)

One of my chavrusas asked me whether I thought the “Slippery Slope Argument” was a legitimate one in Halachic discourse.  I answered in the affirmative and this shiur was my attempt to weigh in on why that is.  Considering the frequency of this type of argument in modern discourse, against my will, this is a sort of foray into Jewish politics.  I hope everyone will forgive me.  The shiur and sources are available here.    In this shiur it is important to read the sources as I purposely did not directly address many of them.  I provided a framework, and then some reading material from the last few weeks that I thought was relevant.

First, a definition is in order.  The “Slippery Slope Argument” asserts that X is problematic because it will lead to Y.  In its fallacious form, it asserts that X will inevitably lead to Y, without explaining all the intermediate steps.  However, if one successfully shows how X leads to Y, it is a valid argument.  Alternatively, and this is more relevant for our discussion, one can claim that X could or is likely to lead to Y, and as a precaution X should be avoided.  Some have claimed that any form of the argument fails because it relies on consequentialist rather than inherent moral objections, but as we will discuss, I think Halacha does not object to such arguments.  In fact, pragmatism would dictate that it is legitimate to oppose things on practical rather than fundamental grounds.

Chazal definitely saw it as legitimate to set up fences to prevent potential Halachic problems.  This in fact is one of the opening statements in Pirkei Avos – “Make a fence around the Torah.”  In the Gemara, this is also described as Asu Mishmeres LeMishmarti – safeguard my laws.  Many sources are provided throughout Chazal, and several are included in the source sheet.  R. Yonah, and many others who follow him, argue that at some level, these fences are greater expression of yirah than the mitzvos themselves, as one shows he is not even willing to come close to sin.  The Magen Avos notes that every generation can set up their own decrees to protect the Torah.  The Rambam in fact rules that any takanah or even minhag set up to protect the Torah is binding under לא תסור, the general obligation to listen to rabbinic authority.

However, there is a danger.  In Avos D’Rabbi Nosson, and in the Midrash, it records that Adam told Chavah that Hashem forbade touching the Eitz HaDaas, when he had only forbidden eating from it.  This allowed the snake to trick her – showing her that touching the tree did not cause death, he claimed that eating from it would also be fine.  The Midrash notes the lesson:  don’t let the ancillary concern be conflated with the real one.  In other words, when you set up a fence, make sure you don’t pretend it is fundamentally problematic.  That will cause a devaluation of that which is really important.   Avos D’Rabbi Nosson even uses this example as its paradigm of a syag, presumably to highlight the dangers of exaggerating the problems of syagim through irony.

The Rambam thought this type of deception was a violation of the prohibition to add to the Torah.  He argues that the rabbis can make decrees, and what distinguishes that from lo tosif is that they are clear to distinguish between rabbinic and biblical laws.

However, there is another perspective.  The Maharil suggests that an asmachta, a possuk provided to substantiate a rabbinic law, is actually meant to cause this type of unclarity, thereby protecting the rabbinic law from being undervalued.  At some level, this perspective makes sense – conflating the different levels will cause those who are only scrupulous for more stringent laws to keep even the syagim, ensuring they never approach the biblical law itself.  However, as shown above, it also causes problems.

These two perspectives came to a fore during the schismatic battles in the nineteenth century.  In response to the Enlightenment and Reform, two general approaches developed (forgive the overgeneralization).  The German school sought to modernize where it was legitimate to show that Halacha could engage modernity, but shows the limits.  The Hungarian approach, with the Chasam Sofer at the head, fought to commit with even greater tenacity to every part of tradition.  As part of this approach, he encouraged protecting every minhag as if it were a full-fledged law, and often found creative ways of explaining why this was so.  Some of his more radical students eventually took this to an extreme, issuing the “Pesak Din of Michalowce” in which they argued that most of the innovations by the orthodox in Germany were forbidden according to the letter of law.  This went too far for even then to-be-leader of Hungarian Jewry, the Maharam Schik.  He argued that to defend minhag was correct, but pretending it was Halacha was a violation of bal tosif as the Rambam formulated it.  Michael Silber has written a fascinating article on this time period, part of which is included in the sources.

Thus, you see the two perspectives coming out in practice – when the tradition is under attack, is it then legitimate to blur all lines between custom and law, or does one still have to maintain honesty and defend the legitimacy of custom and law on their own terms.  Suffice it to say, much of the arguments in our community center around this debate, ודי לחכימא ברמיזא.

Coming back to the general issue- what types things can be prohibited because of the slippery slope?  Obviously, there are local prohibitions that can be instituted – forbidding chicken and milk so that one does not eat meat and milk.  However, there are other things.  Rashba argues that when you see a weak generation who looks for leniencies, one should not go out of his way to be lenient.  This is a general approach which acts as a fence – when observance is lax, don’t be dishonest, but have a proclivity to be stringent.  Rabbi Dr. Judah Goldberg notes that the Gemara encourages poskim not to be lenient on too many things, even if they think they are all permitted.  Having a posek who is seen as always lenient itself leads to the weakening of halachic commitment and respect for Halacha.  The Gemara also forbids permitting things to those who treat them as assur (because of minhag).  All these stress that we don’t only set up local fences – but we try to create an atmosphere that protects the Torah.

A modern contention that was championed by R. Moshe Feinstein is that we should not allow people to engage in actions that could be neutral or even positive if the intentions are bad and belie a problematic attitude towards Halacha.  R. Moshe therefore opposed innovations that were driven (solely?) by feminism because it (often?) stems from a conviction that Hashem/Chazal were flawed/misogynistic, etc.   This argument is a combination of a fundamental and slippery slope argument.  The fact that it could lead to the collapse of Halacha indicates that the attitude is inherently problematic and should not be allowed to instantiate itself in action ever.  R. Schachter in many of his pesakim has followed this approach of R. Moshe.

There are technical problems that have often been raised to the above claim, such as people should not judge the intention of others.  However, I think that poskim have no choice.  One may disagree with their understanding of the reality, but there is no escaping the fact that psak includes making calls about realia, including the psychology of the community.  If they do make the choice to make that call, one should realize that their arguments are serious, and at some level, more important to them and the community than local arguments.  In my sources I include brief citation from R. Henkin and R. David Wolkenfeld’s comment on it.  You will see that many of the issues mentioned above are relevant to understand what drives them.  The same can be said of the psak of R. Schachter and the reaction of R. Katz that I include.

I think Joel Rich really summed up many of the issues in his comments:

There are many things in my understanding that are not 100%assur but varying shades of grey. As avi mori vrabbi zll”hh would often say, “Just because something is permitted doesn’t mean it’s a good idea.” I think the whole guf naki thing is a red herring. The meta question is who will make the call for which community. I don’t know how history will paskin, but I have a greater understanding of how early observers of Chassidus and Conservative Jewry must have wondered how the scales would tip.

The questions being dealt with are 1) When is it legitimate to ban things that might be technically mutar?  2) Who gets to make the calls on when it is time to make those bans?  3) When the bans are issued, how can one have to frame them – as slippery slope arguments of varying sorts, or technical halachic issues?

One last point – even if it were once legitimate to conflate different levels of problems, in an age where anyone can look up the issues online, on Bar Ilan, and the like, I just don’t think it is a good idea.   People will figure out if you’re trying to trick them.  If you think it is assur, explain why.  Don’t use a smokescreen if the argument you want to make is really a form of the slippery slope argument.   It’s a good argument – you just need to explain why.  I may have already said too much, so I’m going to stop there.

Schisms and Lo Tisgodedu (Halachic Methodology 14)

Last week we dealt with the topic of minhag.  We discussed the different types of minhagim, the parameters of when they are binding, and the rationale behind their prominent place in the Halachic system.  This shiur dealt with the other side of that coin – the prohibition of lo tisgodedu (לא תתגודדו).  Chazal derive from the possuk prohibiting cutting oneself in mourning another issur – לא תעשו אגודות אגודות- don’t splinter into different groups.  This prohibition in some circumstances binds people to the practices of the community to prevent them from splitting into factions.  We will not get into the technical issues of how this is derived from the possuk and what its relationship is to the prohibition concerning mourning.  I tried to give a framework to understand the legal and philosophical issues involved in this prohibition. Continue reading Schisms and Lo Tisgodedu (Halachic Methodology 14)

Minhag (Halachic Methodology 13)

Minhag is one of the most complicated issues in Halacha and I did by no stretch of the imagination cover every issue that comes up.  I tried to outline some basic issues, but for the details, you’ll have to look at the sources inside.  Shiur and source available here.

For the other side of the coin, the next shiur was on לא תתגודדו – which binds people to minhag so as not to create divisions within klal yisrael.  I will try to summarize soon.

  1. Types of Minhagim
    1. Source:

i.      Minhag HaMakom

  1. This is the one binding from the perspective of the Gemara (Pesachim Perek Makom Shenahagu)

ii.      Minhag Avot

  1. While the Gemara phrases some minhagim as minhag avot, they seem to really be minhag hamakom.  Continue reading Minhag (Halachic Methodology 13)