Rabbi Ysoscher Katz’s response to Rabbi Fried’s piece. Rabbi Katz is Chair, Department of Talmud and Director of the Lindenbaum Center for Halakhic Studies at Yeshivat Chovevi Torah Rabbinical School as well as Director of Judaic Studies at the Luria Academy of Brooklyn and Rabbi of the Prospect Heights Shul.
עש”ק פרשת שמות, ח”י טבת, תשע”ה
לכבוד תלמידי היקר הרב ר’ דוד שליט”א
I read your teshuvah, it was a pleasure reading it. Your essay is thorough, clear and comprehensive.
As for your critiques of my own Teshuva, האמת אגיד, I am a little surprised. Your arguments are 1) based on a diyuk, 2) an argument from silence, and, finally, on a misunderstanding of my own argument.
As for your actual critiques, אענה בקיצור על ראשון ראשן ועל אחרון אחרון:
1) I argued that according to shitat ha’tosfot the requirement for beis din to be present at the immersion is only a “soft” leketchila. I believe that is true because of the language the Rishonim use when quoting or formulating shitat tosfot; they use phrases like מצוה מן המובחר or הכי עדיף טפי.
I, therefore, fail to understand your critique. You found that Tosafot later on, discussing a related issue, uses the term לכתחילה. My response to you is אז מה. Tosafot in our discussion also uses the term לכתחילה, but as I said, this לכתחילה has to על כרחך mean a soft לכתחילה, given the other quotes that I mentioned.
Therefore, yes, there are certain things we impose on the convert because of the analogy to משפט, and we indeed have to לכתחילה adhere to them. However, unlike most leketchilas, this one is only a “preferred” requirement, one that can be mitigated or compromised under certain circumstances.
2) I argued, based on explicit language from the Ramban, that the reason the Rif requires three for tevila is not because the tevila per se requires the presence of three dayanim. Instead, the reason we need three people is because there is a requirement for a second kabbalat mitzvot and the beis din‘s presence is required for that second kabbalat mitzvot.
Your argument, from silence, is that since the Beis Yosef does not mention that caveat, he must have missed it. It is an argument that is hard for me to believe or accept, especially since there are quite a few Rishonim who say so explicitly, some of whom go even further than the Ramban, saying that the requirement of beis din is for kabbalat mitzvot exclusively. It is, therefore, clear to me that this is what the Ramban meant and that is also how the Beis Yosef understood him.
3) It seems to me that you misunderstood the thrust of my first argument (the לכתחילה argument). I am not relying here on the בדיעבר כשעת הדחק דמי concept at all. I am saying instead that even if such a concept would not have existed in halakha in general, here would be different.
The reason I think we can be meikil here is because this is not your typical leketchila, where you need a real dieved to be meikil. Given the way this opinion is formulated, it is rather obvious that this leketchila is unique in the sense that it is only a “soft” leketchila requirement. Therefore, since this is only a “soft” leketchila requirement, we can be lenient whenever we are presented with mitigating circumstances.
In my opinion, the problematics with tevila post the D.C. scandal satisfies the standard of mitigating circumstances required in this case, allowing us therefore to rely on a be’dieved approach.