Friday, February 20, 2009

Should Our Behavior Follow the Written Halakha or Perhaps Vice Versa

I remember well years ago, not so long after I had made aliyah, that a new oleh moved into the neighborhood. Not just a stam oleh, but a talmid hacham (and I don't use that term lightly).

Well, the practice in our shul, a widespread practice all over Israel, was for the shta"tz to lower the volume of his voice as he prompted the cohanim with birkat cohanim, word by word.

The new oleh was not fond of this practice. Why? Well, in all honesty, the poskim, even the rishonim, talk about this practice, and it's pretty unarguable that their directives call for the sha"tz to remain at the same volume of voice. The new oleh made his discomfort well known, which brought to the shul some degree of discord.

Why discord. It seems pretty reasonable to oppose something the rishonim and poskim opposed, right? I mean, there it was in black and white, just staring at us in the face. And shouldn't our behavior follow the written Halakha?

Let's see how the tosafot may have dealt with this issue.

In the first mishna of the 7th chapter of Berakhot, we learn:

שלשה שאכלו כאחת חייבין לזמן.
Three people who eat together must say zimun.

The gemara brings a disagreement between Rav and R. Yochanan as to whether two men are allowed to make a zimmun.

To answer that question, the Gemara brings the following beraita from Arachin:

תלמוד בבלי מסכת ברכות דף מה עמוד ב
תא שמע: נשים מזמנות לעצמן, ועבדים מזמנים לעצמן, נשים ועבדים וקטנים אם רצו לזמן - אין מזמנין; (והא נשים אפילו מאה) והא מאה נשי כתרי גברי דמיין, וקתני: נשים מזמנות לעצמן ועבדים מזמנין לעצמן! - שאני התם, דאיכא דעות.

That is, since the din of two men is equal to the din of a hundred women, and since we learn in a beratia that women do make a zimmun, then two men should be able to make a zimun. But the Gemara rejects this argument as follows: while it is true that the din of two men is generally equal to the din of three women, in this case it doesn't apply, since … it is critical to have three unique individuals for zimmun.

Now, take a look at Tosafot (patiently … we will get to our issue shortly).

שאני התם דאיכא דעות - מכאן משמע דנשים יכולות לזמן לעצמן וכן עשו בנות רבינו אברהם חמיו של רבינו יהודה ע"פ אביהן ומיהו לא נהגו העולם כן וקשה אמאי לא נהגו מדקתני מזמנות משמע דקאמר חייבות לזמן וי"ל דנשים מזמנות לעצמן היינו אם רצו לזמן מזמנות וכן משמע קצת הלשון מדקתני בסמוך נשים ועבדים אם רצו לזמן אין מזמנין ועוד דמדמה ליה הגמרא לשנים משמע דחובה ליכא והא דקאמר בריש ערכין (דף ג. ושם) הכל מחוייבין בזימון לאתויי נשים לענין רשות קאמר ולא לענין חובה

Tosafot say that from this suggya, it is apparent that three women can make their own zimmun, and, in fact, that's exactly what the daughters of R. Avraham did. Just one problem … tosafot notes that this is not widely practiced. They looked around and saw that women are not making zimmun. Why not? Tosafot concludes that when the Gemara says "women make zimmun" it must have meant they have the option to make zimmun, but not that it is obligatory. But there is a slight problem with this conclusion, note the tosafot. The Gemara in Arachain 3a writes that women are "obligated" to make zimmun.

Now we have a problem. Tosafot note that women are not making zimmun. But the Gemara in Arachin specifically says they are obligated. It's right there, in black and white!

So how do Tosafot resolve this problem … and I kid you not: Nah, that's not what the Gemara in Arachin means. When it says that women are "obligated", it really means that it's "optional".

In the immortal words of Maxwell Smart, "Would you believe." (Google it if you're too young to understand the reference).

So, for those of us who think that our behavior must always follow the written Halakha and never the other way around … guess again. The re-reading of texts to fit common practice is a well known phenomenon among Ashkenazic rishonim. This particular instance is just the most classic case that comes to mind.

As a side note, the development of the minhag whereby the sha"tz lowers the volume of his voice when prompting the cohanim is fascinating. The Yesodei Yeshurun notes that there was a difference between Bavel and Israel. In Bavel, the custom was to prompt, and in Israel not to prompt (based on the prohibition of a non-cohain to do birkat cohanim). I suggest that the minhag for the sha"tz to lower his voice developed as a comprise between the two postions of yes prompting versus no prompting, i.e., the sha"tz lowers his voice significantly when prompting. That a minhag takes the middle road between two approaches in Halakha, adopting neither one of them, is a common phenomenon. Another example is with the placement of mezuzah. There are two approaches in Halakha: vertical and horizontal. A commonly practiced minhag is to place it on a diagonal, as a comprise between the two approaches. This phenomenon is discussed in Sperber's Minhagei Yisrael. The application of it to this particular issue is my own chiddush, which I believe to be correct, but take it for what it's worth.


  1. I was there when the new Oleh couldn't control himself and made a big deal about the way the chazzan called the words for birchat kohanim. Here is the way I look at it. Aren't there bigger more noble issues to fight about. Does our continued dystanny as a pepole turn on whehter the words are said high or low. I think that the Oleh should have asked himself more basic questions like--why are my sons not serving in the army?

  2. Hey! Firstly I just want to say that I'm delighted to have come across your blog and I wish you much hatzlocho in your stated goal.

    A couple of points on this piece, if I may:
    1. Tosafos could only re-read the gemara because mezamnos could be read as voluntarily without being literally incorrect. Have you found cases where the poskim use even more "poetic license"? I'm not saying there aren't but I don't think this is a good proof of your point.
    2. On your chiddush about the compromise: I believe the reason why the diagonal placement of the mezuza works is that it satisfies both shittos, provided it's at exactly 45 degrees or at least looks like it to the eye. In fact based on this, if your doorpost doesn't accommodate that angle, it's questionable whether there's any point in giving it a slight angle. Based on that, I don't see how whispering of the words would be a meaningful compromise. If you hold that it's ossur to say the blessing as a non-cohen, why would whispering help?



  3. Simon thanks for your comments.

    Tosafot are re-reading the beraita in Arachin in a way which is impossible. The Gemara in Berakhot is re-readable in the way he reads it, but not the beraita in Arachin ... they say that when that beraita says "obligated" it means "optional". And what drove them to re-read the beraita was not that the word "mezamnot" in tractate Berakhot can be read as "may make zimun", but what drove them was the common practice they saw that women don't make zimmun. This is clear from a careful reading of the tosafot and also stated by the Tur (I don't remember the siman number by heart, but let me know if you don't find it and I'll look it up).

    Regarding the lowering of the voice, I hypothesize that by lowering the voice, the sha"tz is attempting to show that he is not saying the words as a bracha but as a prompt. The Halakha calls for the cohanim to say the bracha loud enough so the entire kahal can hear, so by not prompting at that volume, the sha"tz is making his role clear.

    Really good comments. If my answers don't make sense, please let me know and give me a second shot at a later point in the day when my eyes are open. Yishar koach!

  4. Quite right you are about the Tosafos. The last line reads chayavin as permitted, which is obviously not what the word means.

    What I think this suggests is that although Torah sheb'al peh was collected and preserved in writing in the Gemara, that doesn't mean that we don't still take into account a living oral tradition that isn't written down.

    It's fascinating though that given that, they also felt the need to have the gemara agree with them! If they felt that the tradition not to mezamen is a valid one, let it stand as a machlokes - why rewrite the gemara?

    The Vilna Gaon does this on occasion to the Shulchan Aruch and Rama in the Biur Hagra. Rather than simply disagree with the mechaber he might say that this is what he means (even though it's clear from the Beis Yosef that he didn't mean that at all!) and even insist on a correction in rare cases.

    Admittedly the Gaon won't do this to justify a widespread practice - rather because of a proof from Chazal or Rishonim. But the idea of re-reading or even re-writing the accepted texts seems to be the same one.

    What do you think?

    Regarding the compromise, I hear what you mean. My issue was with your statement that the minhag adopts neither position. That strikes me as incorrect, since it's far more reasonable to be correct according to one opinion and wrong by the other, rather than be wrong according to both. That's why I understand the diagonal mezuza to be a kiyum of both opinions, rather than an abandonment of both in order to compromise. So long as it's exactly half way, it can claim to be both upright and horizontal!

  5. I couldn't agree more. The tradition of re-reading texts for any number of non-textual considerations is a long-standing one ... starting with Chaza"l' re-reading the chumash. Pure textual considerations are not the only, and sometimes not the primary, consideration in textual interpretations. R. Akiva threw out an existing legal tradition, based on an existing reading of a certain pasuk, and re-read the pasuk ... a re-reading that derived from a value-based issue, not a textual issue.

    Of even greater significance, Me'orei Aish, a commentary on the Tanna Dvei Eliyahu, maintains that "eye for an eye" meant exactly that ... until chaza"l came and re-read the text in the context of monetary compensation. Me'orei Aish interprets a passage in the Tanna Dvei Eliyah to mean that the authority to re-read texts and maintain an ongoing living oral tradition is sanctioned by God.

    We are accustomed to think that the modern equivalent of the tzedukim, who denied the Divine origins of Oral Tradition, (i.e., the Divine sanction to re-read texts in ways they were clearly not orginally understood), is Reform Jewry.

    I look around and ask myself ... which group within the Jewish people is most opposed to re-reading texts in this way, and I don't come up with Reform Jewry.

    More on that later.

  6. Of course Reform Jewry would hardly go to the effort of re-reading texts that they consider to be mostly irrelevant to legal or ethical discussions.

    In other words such "halachic license" should only be exercised by those who need the texts to agree with them as per my point above.

    That is a pretty high barrier to entry.

    Also, in terms of precedent, are there cases that show that this kind of textual revision is done other than to accord with a real oral tradition or as the Gaon does it to fit with some primary source that he feels has been overlooked?

    Where is that Meorei Aish you mention?

  7. The example of R. Akiva fits perfectly, I think. It's in masechet Shabbat 64b:

    'והדוה בנדתה', זקנים הראשונים אמרו: שלא תכחול ולא תפקוס ולא תתקשט בבגדי צבעונין. עד שבא רבי עקיבא ולימד: אם כן אתה מגנה על בעלה, ונמצא בעלה מגרשה. אלא מה תלמוד לומר 'והדוה בנדתה' - בנדתה תהא עד שתבא במים.

    Eliyahu Zuta, chapter 2.

  8. I wish to correct that which I wrote: "The tradition of re-reading texts for any number of non-textual considerations is a long-standing one ... starting with Chaza"l' re-reading the chumash."

    It has been brought to my attention that this phenomenon did not begin with Chaza"l ... it is found in the Bible itself and very prominently in Second Temple literature.