2014 Summer Beit Midrash, Week 2

This week’s dvar torah, akin to last week’s, is a summary of the second week of shiur at the 2014 Summer Beit Midrash by Yakov Ellenbogen and Tzipporah Machlah Klapper

Summary: Although the earliest sources indicate that blind men cannot get aliyot, this was mainly due to the prohibition on reciting the Written Torah without a text. As illiterates became more common and it became a tradition to give aliyot on certain occasions, the current system of reading the Torah – wherein the oleh makes the berakhah and someone else reads – developed. This led to the important question: Given that the current system does not require the oleh to read, can a blind person get an aliyah despite being unable to read, or is the capacity to read still required?

Some poskim, including the Rosh and the Beit Yosef, challenged the premise of the question by saying that the oleh is, in fact, required to read as well. Some – the first being the Eshkol and the most notable being the Maharil – ruled that blind men can get aliyot. Later developments continued this split – the Maset Binyamin ruled that blind men can get aliyot, saying that the prohibition on recitation only created a technical exemption that was now ended, while Rav Yaakov Emden ruled that they cannot.

The historical trend towards being lenient began with the Eshkol and spread. By the nineteenth century, and possibly before, even those who followed the Beit Yosef were forced to admit that the majority minhag was against him.

 We began our studies this week with a gemara on Brachot 58a. The Mishnah there lists a series of brachot recited upon “seeing” kings and scholars. The gemara recounts that Rav Sheishet – along with Rav Yosef, one of the Gemara’s prototypical blind people – went with everyone else to see the king. While he was there, a heretic ridiculed him for going to see the king despite his blindness. Rav Sheishet proceeded to show him that he knew when the king was coming by waiting for the silence of the crowd, based on the principle that kings are like God (he proved this particular case from Melachim Aleph 19).

Rav Sheishet makes a berakhah when the king passes. Our text gives the berakhah, which is in Aramaic and very much not the berakhah given in the Mishnah. Some textual variants merely state that he blessed, with the implication that he recited the regular berakhah.

At the end, either the heretic is blinded or Rav Sheishet “places his eyes” upon him and he is turned into a pile of bones. This is clearly ironic: not only can Rav Sheishet “see” better than sighted people, in one version he has super-vision as well!

We wondered as to the significance of Rav Sheishet’ berakhah. If he made a different, Aramaic berakhah, it could be because he had an obligation even though it wasn’t the same one, or because even though he didn’t have an obligation he wanted to bless and did so. If he made the regular berakhah, he could interpret the Mishnah as being about metaphorical sight. If the first, this would seem to support a pro-inclusion attitude: we create an opportunity to act similarly to others so that one can engage in the regular religious activities. The second could lead to a redefinition of “sight” in halakha.

From this gemara we moved to another gemara in Brachot, this one on 8a. Here we are told that it is wrong to leave a Sefer Torah while it is open. It then lists some minhagim practiced during the Talmudic tradition, among them that Rav Sheishet used to turn his head away from the Sefer Torah and recite Mishnah while it was read. He said: “We in ours and you in yours.”  This suggests that Rav Sheshet saw himself as unconnected to the public Torah reading owing to his blindness.

In roughly historical order, we read a series of halakhic texts that addressed the issues related to blind men and reading the Torah: An anonymous gaonic responsum explains Rav Sheshet as meaning the following: “We as much as we are commanded” – this being the Oral Torah, because he was blind and therefore exempt from Torah reading (the Written Torah).

Rav Nitronai Gaon says that a blind man cannot read the Torah for the congregation; he is incapable of fulfilling their obligations because he cannot read. He also cites the prohibition of reciting the Written Torah without a text. Even if a blind man knows the parshah by heart, he is prohibited to read it because he would violate this prohibition. He also rules like the Chachamim in the Mishnah in Megillah: a blind man can say shma – and its brachot – for the congregation.

That Mishnah, which we studied last week, discusses the capacity of a minor and one wearing torn clothing to perform five public rituals; the translation of the Torah reading, leading Shema, leading prayer, the priestly blessing, and reading Torah.  The printed and manuscript editions of the Mishnah say that a blind person can translate and lead Shema, and do not discuss whether blind people can read Torah, lead prayer, or give the priestly blessing.  The Midrash Tanchuma seems to reflect a version of the Mishnah which says explicitly that a blind person may not do any of these. One edition of RIF has the same text as Tanchuma, but parenthesized to indicate that they should in fact be edited out.  ie has the three cases that were missing from the Mishnah in Megillah, but with all three edited out; a later edition has only the second two edited out, with “he may not read from the Torah” left in. This is probably because Rashi al HaRif directly contradicts the other two cases, but does not explicitly permit a blind person to read Torah.

The Piskei HaRid rules that a blind man cannot read from the Torah even if he knows what he’s doing because of the prohibition cited above. Rabbeinu Yerucham concurs and cites both our Mishnah and the textual variant in the Tanchuma. The Rosh explicitly rules like the Chachamim (as opposed to the Gaonim, who merely did so implicitly) and says that a blind man may lead davening, though he cannot read from the Torah. The Agur rules like the Rosh. The Sefer HaBatim rules that blind men can lead davening and claims that there are those who rule against this (possibly endorsing the idea of an alternate text of the Mishnah).

The Meiri rules explicitly like the Chachamim against R’ Yehudah. His reading of the Mishnah is different from Rashi’s – he explicitly states that the reason that a blind man can say shma for the congregation is that he is merely giving them the order of the brachot, not reciting them for them. He rules that a blind man cannot read the Torah for the same reason as those above. He also cites an opinion that blind men can read from the Torah because the prohibition on reciting the Written Torah only applies to those who are capable of reading.

The gemara in Megillah 32a rules that the process of Torah reading is thus: “he opens [the Torah] and looks and makes the berakhah and reads.” During the time of the Mishnah, the same person who said the berakhah read.

We saw three texts of the Eshkol, a 12th-century book by the Raavad II. The first is the notoriously corrupt Auerbach edition, which says that even though a blind groom cannot read directly from the Torah, he can have another man come up with him and bless and stand beside him. No mention is made of who reads; it is possible here that this is yet another man. The second text, the Albeck edition, seems to cite the Mishnah as saying that a blind man cannot read from the Torah. It also says that the second man follows the entire process given by the gemara in Megillah 32a. The third text was a citation by the Nimukei Yosef, who says that the second man does all of the process except for the blessing in a practice suspiciously similar to our current one.

The Agudah says that in a case where the only Kohen in a city is blind, he can take the aliyah traditionally reserved for kohanim. He says that the prohibition of berakhah levatalah is inapplicable, saying that a sighted person should also be exempt, since he has said the berakhah on Torah learning earlier. Rather, he says, the obligation to read the Torah stems from oneself. He offers no further explanation. We speculated that this was somehow connected to the nature of Torah reading; it is about the kavod of the Torah and not what is being read. The Agudah adds at the end that there has been a change in custom since the times of the Mishnah; those called up to the Torah no longer read themselves. This is the first historical mention we saw of such a custom.

The Shiltei Giborim cites the Rosh and another, unnamed position that rules against him, presumably one of the opinions cited earlier.

The Maharil, the major Ashkenazi posek of the 14th century, rules against the Rosh and says that blind men can get aliyot.

The Tur rules like his father, the Rosh, that a blind man can do everything listed in the Mishnah except read from the Torah. He also gives an explanation for the custom mentioned in the Agudah: people often think they are expert enough to read when this is not in fact the case. He also cites his father’s opinion that the person given the aliyah must read along with the reader softly, and that it is unbefitting to call up people who cannot read. He also cites a Talmudic-era custom to have a man standing next to the one reading; Torah reading is, according to the gemara, a reenactment of Har Sinai, and therefore we require a reminder that the reader is only an agent.

From there we moved to the Beit Yosef – Rav Yosef Caro, also known for writing the Shulchan Arukh. He claims to have a wide consensus that a blind man cannot read from the Torah: the Rosh, the Tur, Rabeinu Yerucham, the Rashba, the Shibolei HaLeket, the Rambam, the Rivash, and Maharin Chaviv. He then quotes the Zohar on Parshas Vayakhel, which says that two people cannot read from the Torah, only one. He says, based on this, that the oleh cannot read along with the reader, because there can be only one person reading at a time. He also says that where there is no gemara, it is proper to rule in accordance with the Zohar against later writers. He reconciles the Rosh to this by saying that the oleh can and should read with the reader, but only so long as he is so quiet that he cannot hear himself. He cites a custom of the Jews of Romania, who would have the reader read a word and the oleh repeat it. Because they read the words consecutively rather than simultaneously, he rules that this is in accordance with the Rosh and the Zohar and a proper custom to follow.

The Darchei Moshe – a book by the Rama, who is best known for his gloss on the Shulchan Aruch – quotes the Maharil’s lenient ruling and concludes with an ambiguous abbreviation tkat means he either agrees or disagrees with the Beit Yosef. Many Achronim – and the Bar Ilan text – read him as agreeing.

The Shulchan Aruch rules that a blind man cannot read the Torah because of the prohibition against reciting the Written Torah. The Rama quotes the Maharil there. Elsewhere in the Shulchan Aruch, Rav Caro gives the same rulings and reasons he gave in the Beit Yosef.

The Bach, a commentary on the Shulchan Aruch, says that the position of the Maharil is widely accepted and many great rabbis allow blind men to get aliyot. He brings in the new idea that only a learned blind man, and not an ignorant one, can get an aliyah. He believes that as long as you have only one exclusionary factor against you – blindness or ignorance – we allow you to read, but not if you have two factors against you. Unlike many earlier sources, he doesn’t really understand the drive to allow ignorant people to get aliyot¸ with the implication that he does understand why you would want to allow blind men to.

The Taz brings a story from the Talmud Yerushalmi wherein R’ Meir made the berakhah on Torah reading and had someone else read for him. He thinks that based on the Bach one can extrapolate a full leniency and allow even ignorant blind people to receive aliyot.

The Arukh HaShulchan rejects the Taz’s proof on the grounds that while R’ Meir – who was sighted – was capable of reading, a blind man is not. He cites the Talmudic principle of kol hara’ui l’bilah, ein bilah m’akevet bah – anything that is capable of [doing something], does not need to [actually do so] – as proof. He is puzzled that the Beit Yosef quotes a Mishnah that seemingly does not exist – one that says that a blind man cannot read from the Torah – and concludes that he must have had the Rif’s text. He says the custom is to allow blind men to get aliyot. He thinks that in the end blind men can recite psukim, since Rav Yosef and Rav Sheishet recited the Hagaddah in their households and that has many psukim in it.

The Turei Even on Megillah 24a – the Mishnah in Megillah so instrumental in the opinions given above – finds it unthinkable that a blind man could be totally exempt from all mitzvot according to anyone, and reinterprets R’ Yehudah as obligating him only in negative commandments such as the one that would allow them to make him chayyav d’rabbanan.

The Sfat Emet says that – according to R’ Yehudah – a blind man is only exempt from commandments that we could not have reasoned out on our own – gzeirot hakatuv – that appear in the Torah. He is still obligated in all other commandments, including all other commandments in the Torah and all gzeirot d’rabbanan. He concludes that though blind men are patur from kriat shma, they still need to say the brachot, which are d’rabbanan. Since these can only be said in conjunction with recitation of the Shma, which is Written Torah, he is essentially obligating them from a different angle.

Both of these last sources clearly feel a moral impetus towards making blind men commanded. To them, it seems obvious that it is wrong for a thinking adult who is otherwise normal to be excluded from regular religious activity merely because he is blind. Since the simple interpretation of R’ Yehudah – that a blind man is not commanded at all – is unthinkable to them, they reinterpret him to say something that seems more rational.

After examining the halakhic literature surrounding the Mishnah in Megillah, we moved on to the responsa that touch on the issue of blind people getting aliyot. The first responsum we saw was in the Maset Binyamin. This responsum is unusual in two ways:

The first is that the response opens with a statement of motivation. Through a rhyming introduction, the author informs us that the Beit Yosef, the standard posek, has decided that the blind can’t get aliyot. He responds, however, that the Torah is open to all to interpret, and we have a concept of “Mitzvah achat lo yevatel,” “[Even] one Mitzvah should not be nullified.” In addition, he writes that at that time he was going blind and feels that the psak of the Beit Yosef is excluding him from the participating in Torah by not letting him get aliyot, a fate he cannot accept due to his love and devotion to Torah. Because of this, he feels that he needs to reexamine the question and set up “battle lines” between those who allow blind people to get aliyot and those who forbid it.

This introduction raises a few interesting questions that we discussed in shiur. Does this stated intent impact on his pure halakhic discussion later in the responsum? If it does, does his bias or subjective treatment of the material lessen the impact of his decision on later halakhic discussions? For that matter, is subjectivity inherently “worse” than objectivity, and would we just not accept anything that has a subjective element? All of these questions need to be thought through before making a final decision on the halakha.

The second unusual aspect of the responsum is that the author sets out his own methodology of deciding halakha. This can also be analyzed from two fronts. First, we can decide whether his methodology is compelling. Do we view his outlook on halakha as comparable to our own or not? Second, we can see whether he follows his own rules throughout his responsum.

The specific argument made in the Maset Binyamin follows the method he states in his introduction of making “battle lines.” First he summarizes all the opinions of the Rosh, Tur, Rivash, and Abudraham, all of whom he says hold that blind people are forbidden from getting aliyot due to the reasons above. Then he summarizes the opinions of the Agudah, Eshkol (the version found in the Nimukei Yosef), Maharil, Binyamin Ze’ev, Shiltei Giborim and Zohar.

It is apparent that the list of those who forbid aliyot to the blind found in the Maset Binyamin is different than the list found in the Beit Yosef. The Maset Binyamin says that this is because all of the other sources that the Beit Yosef lists do not actually believe that it is forbidden for the blind to get aliyot; they only quote from the Gemara which forbids people from reciting Written Torah from memory.

Finally, the Maset Binyamin claims that according to his methodology, it is obvious that those who forbid the blind from getting aliyot are wrong. He states that his criteria for an opinion to be the correct one are (1) precedent in the Gemara and its early interpreters, (2) a majority of poskim on one side of the argument, and (3) later sources that support it (since later sources are considered more authoritative in terms of practical halakha). The Maset Binyamin claims that he wins on all three of these issues.

The next responsum we looked at was the Shut Sheilat Ya’avetz of Rav Yaakov Emden. R. Emden’s investigation into the halakha is drastically different than that found in the Maset Binyamin. To begin with, R. Emden’s presentation seems to be hostile, polemical, and filled with negative rhetoric. We raised the question of whether R. Emden believed his arguments, which involved some things, like siding with R’ Yehudah against Chachamim that a blind person is exempt from mitzvot, that are hard to believe.

In this vein, we discussed whether, if one were to take out all rhetorical language and examine the halakhic arguments, one would be compelled to take them more seriously because R. Yaakov Emden had said them. In other words, should we be compelled by rhetoric, or should we take the arguments and the authority that wrote them for granted?

We also focused on the methodology implicit in R. Emden’s response. It appears that R. Emden believes that one side of the argument needs to be completely airtight in all areas; otherwise, it is wrong. He therefore makes the argument that the other side is right about nothing, while he is completely correct.

This seems to be an abnormal methodology. We usually say that the level of proof needed is not absolutely positive, but compelling to a level the posek views to be proper. We concluded that Rav Yaakov Emden probably felt so compelled to prove himself because he knew common practice was against him, so he couldn’t leave any legitimate leniencies.

We noted that common practice could shift the burden of proof. For example, in contemporary Sefardi psak there are opinions that say that a blind person can get an aliyah, relying on the Maharil against the Shulchan Aruch. Does this shift in common practice change the burden of proof one should place on those allowing blind people to get aliyot, or is the common practice not enough?

This touches on the issue of moral instinct in halakha. We have seen over the past two weeks that moral instinct informed many of the interpretations of the gemaras we sawas well as many of the halakhic rulings, from the Eshkol to Tosfot to the Maset Binyamin. Are we willing to say that since common practice is one way – which agrees with our moral instinct – we should agree with that; or should we say that regardless of common practice, if the underlying halakhic argumentation is faulty, we should not accept it? The Tzitz Eliezer seems to side with the first option, and says we should never embarrass blind people and always give them aliyot based on the common practice.

This conversation about moral instinct will hopefully inform us more as we move on in our discussion of people with disabilities and halakha, due to the sensitive nature of the topic.

Shabbat Shalom

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