Walking Between the Halakhic Raindrops: Why Halakhah (Sometimes) Makes Such Fine Differences Between the Permitted and the Forbidden

by Rabbi Aryeh Klapper

Why does the Torah permit some things and forbid others that seem pretty much the same?

One possibility is that some or all mitzvot are arbitrary. They are meaningful only because G-d commanded us to observe them. The experience and effect of the mitzvot would be substantively the same had G-d banned beef while permitting pork.   

A second possibility is that the mitzvot reflect G-d’s benevolence, but in ways that human beings cannot fathom. This changes our image of G-d, but not our relationship to any particular mitzvah.

A third possibility is that God commands most or all mitzvot for benevolent reasons that some, most, or all human beings can comprehend.

Rambam adopts a version of the third approach. Here is his language in Guide 3:26 (translation edited from Friedlander):

All of us, the common people as well as the scholars, believe that there is a reason for every precept, although there are commandments the reason of which is unknown to us, and in which the ways of God’s wisdom are incomprehensible.This view is distinctly expressed in Scripture: righteous chukim and mishpatim (Deut. 4:8); the mishpatim of Hashem are true, and righteous altogether (Ps. 19:10)…

Those commandments whose object is generally evident are called mishpatim; those whose object is not generally clear are called chuḳim. Thus they say “for it is not an empty thing from you – if it is empty, that (emptiness) comes from you”…

However, Rambam insists that this presumption of meaningfulness applies only to mitzvot taken as wholes. The legal details of any mitzvah may be arbitrary.

I have, however, found one utterance made by them in Bereshit Rabbah (sect. xliv) which might at first sight appear to imply that some commandments have no other reason but the fact that they are commanded, that no other object is intended by them, and that they do not serve any useful object. I mean the following passage:

“What difference does it make to God whether a beast is killed by cutting the neck in front or in the back? Surely the commandments are only intended as a means of refining people (via obedience)” …

Although this passage is very strange, and has no parallel in the writings of our Sages, I explain it…

I will now tell you what intelligent people ought to believe in this respect; namely, that each commandment has necessarily a cause, as far as its general character is concerned, and serves a certain object; but as regards its details, we hold that it has no ulterior object.

Thus killing animals for the purpose of obtaining good food is certainly useful, as we intend to show; that, however, the killing should not be performed by necḥirah, but rather by shecḥitah, and by dividing the œsophagus and the windpipe in a certain place – these regulations and the like are nothing but ways of refining people.

Ironically, however, the midrash chose a poor illustration to make this point. In fact, the details of shechitah are meaningful.

This is the sense you must give to the example quoted by our Sages [that there is no difference] between killing the animal by cutting its neck in front and cutting it in the back. I give this instance only because it has been mentioned by our Sages; but in reality, as it has become necessary to eat the flesh of animals, it was intended by the above regulations to ensure an easy death… 

Rambam nonetheless doubles down on the position that details need not be meaningful.

A more suitable instance can be cited from the detailed commandments concerning sacrifices. The law that sacrifices should be brought is evidently of great use, as will be shown by us; but we cannot say why one offering should be a lamb, whilst another is a ram; and why a fixed number of them should be brought.

Those who trouble themselves to find a cause for any of these detailed rules, are in my eyes void of sense: they do not remove any difficulties, but rather increase them. Those who believe that these detailed rules originate in a certain cause, are as far from the truth as those who assume that the whole law is useless…

Despite Rambam’s strong language, but perhaps emboldened by Rambam’s admission regarding shechitah, Ramban (Devarim 22:6) sees no reason to concede that the details of mitzvot may be arbitrary. He diverts the midrash Rambam cited into an entirely different channel. In Ramban’s reading, the midrash is denying only that the mitzvot serve G-d’s interests. Rather, they confer benefits on human beings; they are calibrated precisely so as to refine human characteristics. (My translation is slightly modified from the Chavel edition on Sefaria)

But those Aggadic statements presenting difficulty to the Rabbi are. in my opinion, intended to express a different thought, as follows:
The benefit from the commandments is not derived by the Holy One Himself, exalted be He. Rather, the advantage is to the human being… to prevent physical harm, or some evil belief, or unseemly trait of character, or to recall the miracles and wonders of the Creator, blessed be He, in order to know the Eternal. This is the meaning of “in order to refine people” – that they may become like “refined silver”, for one who refines silver does not act without purpose, but rather to remove therefrom any impurity…

Now this very same Aggada is mentioned in the (Midrash) Yelamdeinu in the section of These are the living things: ”And what difference does it make to the Holy One, blessed be He, whether one eats of an animal which is ritually slaughtered or if he just stabs it? Do you benefit Him or harm Him at all? …”

How a modern reader feels about the dispute between Rambam and Ramban may depend on how convincing and/or compelling they find Rabbi Samson Raphael Hirsch, whose Biblical commentary brilliantly rationalizes the details of sacrifices in precisely the ways that Rambam thought misguided.

I would like to stake out a position midway between Rambam and Ramban, namely: the details of mitzvot are rarely arbitrary, but their rationales are often not independently sufficient. For example: G-d would not have commanded us to slaughter-for-food from the front of the neck merely to keep us from slaughtering from the back. However, once G-d was standardizing the slaughter ritual, slaughtering from the front became the best way to standardize.

Choosing front over back shechitah was not arbitrary, but front-shechitah is not sufficiently meaningful to be commanded per se. This might justify strong resistance to expanding or altering the halakhic definition of shechitah even if the reason for choosing front over back would point in modernity to including or mandating a different way of killing the animal.

Furthermore: Rambam explained the choice of front over back as intended to reduce the animal’s suffering. Ramban clarifies that it therefore prevents damage to human capacity for empathy. Both recognize that if this rationale were overriding, G-d would have forbidden human beings to be carnivorous. The requirement of a specific mode of slaughter expresses a value subordinated to the values expressed in the permission to eat meat.

This raises the question of what other methods halakhah can use to express the relationship among values it endorses. The simplest is rules of precedence, such as mandating that we violate Shabbat in order to preserve human life. But perhaps we can expand Rambam’s notion of the details to say that which animals are kosher and which not may at core be arbitrary; the point is that Jews live in a world halfway between the vegetarianism of Eden and the unconstrained carnivorousness of Noah.

On this pattern – and I apologize for raising this issue so suddenly and briefly – perhaps we are misguided when we try to distinguish between the good of (permitted) commerce and the evil of (forbidden) usury. This distinction can be quite blurred even on the Biblical level, and I have not been able to find non-arbitrary grounds for what the Rabbis chose to forbid and what to permit. Perhaps the rabbis saw commerce as a sort of carnivorousness.

Shabbat shalom!

In the Absence of Shotrim – Shoftim and Shoftot

by Rabbi Aryeh Klapper

“You must place for yourself shoftim/judges and shotrim/enforcers in all your gates”. Two recent articles by wonderful Modern Orthodox thinkers challenge the Modern Orthodox community to take this opening command of Parshat Shoftim partially to heart. Mr. Michael Feldstein contends in The Jewish Link[1] that our rabbis should be receiving more questions about financial ethics, i.e. serving more often as shoftim, and Rabbi Itamar Rosensweig argues[2] on the Beit Din of America website for relating to the financial beit din as a central communal institution. Neither of them argues for the reinstitution of shotrim, however.

These challenges emerge naturally from our prayers three times each day for G-d to fulfill His promise to “restore our shoftim/judges as at first and our yoatzim/advisers as at the outset” (Yeshayahu 1:26). Note that the promise makes no mention of shotrim, nor do our prayers.

As with ultimate Redemption, it is possible to view the Divine promise as excusing us from political responsibility. Our role in bringing about its fulfillment would then be limited to self-improvement and theurgic prayer.

Radak may take this position in his commentary to Yeshayahu 1:26: 

זה יהיה בימות המשיח

שיכלו הרשעים כלם,

ושארית ישראל לא יעשו עולה ולא ידברו כזב

This will be in the Messianic age,

when all the wicked will be ended,

and the remainder of Israel will do no crookedness and speak no deception 

Radak implies that the restoration of ideal shoftim and yoatzim requires a prior cessation of the wicked and of dishonesty.

This seemingly leads to paradox. A financial-issues beit din functions ideally when it can assume the honesty and good faith of all litigants. But do people of honesty and good faith require a beit din?

Yes. In an honest world, two people suing each other in beit din are in exactly the same position as one congregant asking her rabbi; everyone just wants to know what the right thing to do is, and to be sure that they are properly fulfilling all their responsibilities. The beit din in such a situation exercises authority unconnected to power. They are shoftim with no need for shotrim.

The situation is very different when one or both litigants may be acting in bad faith, and the beit din must enforce its jurisdiction and eventually its ruling if justice is to be had. Here power is necessary, and power famously tends to corrupt.

Less famously, but perhaps more truly, powerlessness tends to corrupt. Let me explain how this applies to American batei din.

Batei din have no direct enforcement power under American law. They acquire indirect power only if all relevant parties sign a binding agreement to arbitrate in beit din and accept the outcome. When a case goes to beit din without such an agreement, a losing party can then sue in secular court as if the beit din never happened. The result is that beit din becomes most useful for con artists suing halakhic suckers – they can collect if they win, because the other side will accept the verdict, and relitigate without prejudice in secular court if they lose. A beit din whose major constituency is con artists will inevitably come to resemble them. Shoftim without shotrim are a bad idea in a world of tricksters.

The proper response is for batei din to refuse cases unless both parties first sign a binding arbitration agreement. This is in fact Beit Din of America’s policy. So we can adapt Rabbi Rosensweig’s question as follows: Why don’t more Modern Orthodox Jews sign more such agreements?

A charitable answer is that these agreements work only if both parties sign, and Modern Orthodox Jews conduct most of their business outside their community. But as Rabbi Rosensweig correctly notes, there is a clear exception to this reality, namely divorce. Happily, the vast majority of Modern Orthodox couples sign binding arbitration agreements before their Jewish marriages for all issues related to the delivery and receipt of a get and to “The Prenup”. (May we get to 100% soon, and may this expand to other communities!) They are given the opportunity to extend that agreement to cover the financial issues of marital dissolution, but almost always refuse, on the advice of lawyers, parents, friends, and sometimes even Orthodox rabbis. Why? I think there are two good reasons.  

The first is that an authority structure will deliver justice only if it is regulated, meaning that it has a clear set of procedures and goals, and accountable, meaning that there are consequences for failure to adhere to those procedures and goals. The Beit Din of America, which employs Rabbi Rosensweig, has made admirable strides in that regard over the past several decades. But it may be alone in that regard within Modern Orthodoxy.

The second is that justice in matters of money and property is largely a function of expectations. When people dispute about a transaction, the justest outcome in most circumstance is generally the outcome they would reasonably anticipate. Law therefore cannot yield justice if people can’t know in advance how the law will be decided. Even the most-qualified and best-intentioned shoftim can decide justly only on the basis of a properly developed set of precedents.

This points to a second seeming paradox. Batei din can yield justice only after many people have used them, but justice-seekers should not use batei din until after many people have used them. So we’re back to a beit din patronized only by grifters.

One solution to this paradox is to minimize or eliminate the arbitrage between batei din and the secular courts, using principles such as dina demalkhuta dina. The secular courts have a record extensive enough to enable justice, and that way, parties who expect to win in secular court can agree to arbitrate in beit din without being suckers. Over time, a beit din that develops a reputation for probity and honesty will be able to carve out distinctively Jewish and yet fully modern doctrines to be applied when parties seek halakhic arbitration, and genuine cases of first impression will occasionally arise.

In this regard, I think Rabbi Rosensweig’s use of the relevance of the ketubah as an argument for beit din is misplaced. Bimchilat kevodo, something has almost certainly gone badly wrong if a contemporary beit din ever considers the value of a ketubah as a serious component of its deliberations. In the absence of a clear prior valuation, the lowest amount will always be the outcome, since the husband can claim “kim li” (= that’s the halakhic position I follow), and one cannot obligate payment in the face of a valid such claim. Moreover, even the highest possible evaluation of the ketubah is unlikely to yield an amount approaching the outcome of equitable distribution or community property, the two most common divorce regimes in American law. To my knowledge, reputable batei din simply ask the woman at the end to explicitly acknowledge that the husband’s ketubah obligations are satisfied by the divorce settlement.  

A second solution to this paradox is to provide an ideological incentive for going to beit din that is worth a certain amount of financial risk.

Here is one possible such incentive. The qualms of some rabbonim and poskim continue to constrain efforts to grant women formal halakhic authority, and that dynamic sets up a vicious cycle in which many interested and talented women are unable to access the kind of education that would enable them to contribute creatively to top-level halakhic discourse. They settle for educations that leave them far short of equally interested and talented men, and this sets up its own vicious cycle of disrespect.

However, to my knowledge there is a halakhic consensus that women can serve as halakhic judges in financial cases if both parties agree to accept their jurisdiction. Compulsory jurisdiction might raise issues – but we have no shotrim. What if we began a program to train women as judges in such cases? That would require more years and higher standards than any existing program, as is the case for yadin yadin programs for men. But would it radically increase the use of halakhah for financial matters, in the manner that the availability of yoatzot halakhah greatly increases the number of niddah questions asked? Would the position of halakhic arbitrator provide a plausible source of employment that would enable learned women to invest the years necessary to achieve their potential as halakhic scholars?

The question is hypothetical, but if we will it, it is no dream. Please contact me at moderntorahleadership.org if you are interested in supporting such an effort.

Shabbat shalom!

---

[1] https://jewishlink.news/should-we-be-asking-more-halachic-questions-of-our-rabbis

[2] https://bethdin.org/the-beit-din-as-a-basic-institution-of-jewish-life/

Week Six Summary SBM 2023: We Allow the Worst (Because you Might do Something Worse)

By Jacob Klein, edited by Rabbi Aryeh Klapper

Shulchan Arukh EH 23:1 writes:

אסור להוציא שכבת זרע לבטלה

ועון זה חמור מכל עבירות שבתורה.

It is forbidden to emit semen for no purpose (levatalah)

and this sin is more severe than all the transgressions in the Torah.

Rabbinic rhetoric of this sort may be hyperbolic. For example, Talmud Bavli Nedarim 32a states that circumcision is given weight equivalent to all the other mitzvot of the Torah, while Tosefta Avodah Zarah 4:3 says exactly the same about settling the Land of Israel, and Talmud Yerushalmi Berakhot 1:5 records Rebbe as saying exactly the same about Shabbat. These statements are mathematically incompatible (unless all mitzvot are weightless). Moreover, substantially identical statements are made in other texts and times about other mitzvot: consider things you’ve heard said about lashon hora, or the three mitzvot one must die rather than transgress, desecration of the Divine Name, and so forth.

Contemporary mental health experts advise strongly against overweighting the sin of emitting semen levatalah. They argue that some degree of masturbation is inevitable and normal, especially for adolescent males, and that emphasizing this halakhah risks turning sexuality into a source of shame and neurosis. Poskim and mechankhim need to take this advice with great seriousness.

We also need to avoid caricaturing our ancestors as hopelessly hobbled and harried by sexual shame. Rabbi Klapper suggests that modern ideas about mental health both reflect and require different attitudes toward sex, shame, and communication. It’s hard to know how past generations were affected by shame that ordinary individuals mostly didn’t discuss, or at least didn’t discuss in ways we can retrieve.

The question is whether the inclusion of this statement about emitting semen levatalah in Shulchan Arukh gives it specifically halakhic weight.

The standard 17^th century commentary Chelkat Mechokek cites Sefer Chasidim as follows:

 אם א’ מתירא שלא יכשל בא”א או באשתו נדה ח”ו –

טוב לו להוציא זרע לבטלה משיכשל ח”ו באיסור א”א או בנדה

רק יתענה מ’ יום בימי הקיץ או ישב בקרח בימי החורף.

If a person is afraid lest he stumble with a married woman or his nidah wife G-d forbid –

It is better for him to emit semen than to stumble G-d forbid in a prohibition of adultery or nidah

just he must fast for forty days in the summer, or he must sit in snow during the winter.

Advising men to commit the sin of emitting semen levatalah in order to forestall a different sin implies that the different sin is more severe, and thus that Shulchan Arukh’s statement is either rejected or else hyperbolic. The second edition of Beit Shmuel, the other 17^th century standard commentary on Shulchan Arukh section Even HaEzer, adopts the second approach. After quoting Chelkat Mechokek, it adds:

According to this,

 what is written in the Zohar and here (in Shulchan Arukh)

that the sin of emitting semen is more severe than all other transgressions –

is not precise.

לפ”ז

מ”ש בזוהר וכאן

דעון מוציא ש”ז חמיר מכל עבירות –

לאו דוק’.

 However, the first edition of Beit Shmuel had included an alternative.

Alternatively, one can say that this sin is more severe than having sex with one of the arayot –

that applies with regard to having sex without emitting semen

as we hold that one is liable (for sex with one of the arayot) from the moment of penetration

but if he emitted semen (during that sex) –

that is also considered emitting semen for no purpose

(and therefore it is certainly worse than masturbation)

א”נ י”ל עון זה חמור מבא על עריות –

היינו לענין אם בא ולא הוציא זרע

דקי”ל משהער’ בערוה חייב

אבל אם הוציא זרע –      

היינו נמי הוצאת זרע לבטלה.

It is not clear why this explanation, which preserves the status of emitting semen as absolutely the most severe sin, was excised for the second edition.

In the 19^th century, Rav Shlomo Kluger (Chokhmat Shlomo to Shulchan Arukh Even haEzer 23a) offered two very different ways of reconciling the Zohar with the Sefer Chasidim. 

In my humble opinion, it is not necessary to force-interpret the words (as hyperbole),

rather it is certainly more severe than all (other) sins,

just that when there are two transgressions that one must choose between, this or that –

it is better to nullify the prohibition against emitting semen,

which includes a permitted case, namely when done for the sake of procreation,

as opposed to (the) other sins (mentioned in Sefer Chasidim, i.e. adultery and sex while niddah)

that do not include a permitted case . . .

We can further explain the matter.

Since emitting semen is permitted in order to raise descendants,

and “the descendants of the righteous are (their) good deeds”,

and if a person is passive and does not transgress a transgression –

they give him reward as if he has done a mitzvah,

if so,

when a matter of transgression comes to (his) hand, such as adultery or sex with a niddah, and he refrained from doing it – this is considered as if he has done a mitzvah,

and the doing of a mitzvah = (having) descendants,

and to raise up descendants – it is permitted to emit semen,

therefore it is permitted for him to emit semen for this purpose…

for the purpose of not transgressing a (different) sin

ולפענ”ד א”צ לדחוק בזה,

דודאי הוא חמור מכל עונות,

רק היכי שיש ב’ עבירות לבחור, זה או זה –

אז מוטב לבטל עון ש”ז,

כיון דהותר מכללו לפ”ו,

משא”כ שאר עברות – לא הותרו מכללן . . .

ויש להסביר הדבר יותר.

כיון דש”ז הותר להעמיד תולדות,

והרי תולדתיהן של צדיקים הוי מע”ט,

והרי ישב אדם ולא עבר עבירה –

נותנין לו שכר כעושה מצוה,

וא”כ, בבא לידו דבר עבירה, כגון א”א או נדה, ולא עשה – הרי נחשב לו כעושי מצוה,

ועשה מצוה הוי תולדות,

והרי להעמיד תולדות הותר להוציא ש”ז –

לכך מותר לו להוציא ש”ז עבור כך…

לכך מותר עבור מניעת עבירה

Rabbi Kluger’s second approach seems far into the world of derush, but may have radical halakhic implications. It seems to say that accomplishing any mitzvah whatsoever, or for that matter avoiding any transgression, is sufficient to justify emitting semen, or at least to ensure that doing so will not be considered doing so levatalah.

Rabbi Kluger’s first approach shakes up our nations of value and severity. Emitting semen levatalah is the worst sin, but it belongs to a category of ‘weaker’ sins. Therefore, one should emit semen levatalah rather than commit a less severe sin that belongs to a ‘stronger’ category. Is this true with regard to any sin whatsoever in the ‘stronger’ category? I cannot tell from Rabbi Kluger.

Regardless of whether one paskens like the apparent implications of Beit Shmuel’s first edition or Chokhmat Shlomo, there seems to be a consensus in support of accepting Sefer Chasidim’s ruling. This provides yet another illustration of a procedure for resolving conflicts of values that seems to straddle the line between halakhah and not-halakhah. (We’ve seen many over the past few weeks, including but not limited to chatei bishvil shetizkeh, desecrate one Shabbat so as to allow him to observe many Shabbatot, and aveirah lishmoh.) How can it not be halakhah if it is quoted with approbation by many commentators on Shulchan Arukh? Yet how can it be halakhah if one is required to atone for following it? That paradox is central to SBM’s theme this summer – stay tuned for the 2023 SBM Sh’aylah (or sh’aylot), coming soon in this space!

Shabbat shalom!

Week Five Summary SBM 2023: A Close Shave with Issurim

By Jacob Klein, edited by Rabbi Klapper

May a man who shave his beard with depilatory (acid) cream on Chol HaMoed, if he is accustomed to shave regularly? The late 18^th century Rabbi Yechezkel Landau reports being asked this question at the outset of Shu”t Noda BiYehudah 1:0C13. However, in later responsa Rabbi Landau concedes that the metzius, the facts of the question, were subtly but significantly different that his initial presentation. He is openly, even aggressively, mysterious about his motivations for making those changes and then acknowledging them.

Rabbi Landau reports that his initial response was “Absolutely not!”. Mishnah Moed Kattan 3:1 lists those who are permitted to shave on Chol HaMoed, essentially because they were unable to shave before Yom Yov. Talmud Moed Kattan 14a deduces that all others are forbidden to shave, and explains that the prohibition was instituted lest people put off shaving before Yom Tov and enter the holiday looking unkempt. The 12th century halakhic giant Rabbeinu Tam argued that people who actually shaved on Erev Yom Tov should therefore be exempt from this prohibition. However, an absolute halakhic consensus of contemporaries and successors rejected Rabbeinu Tam’s leniency. Their strong prima facie case is that the Mishnah does not include such a person in its list of those exempt.

But Rabbi Landau abruptly reverses course. A figure so great as Rabbeinu Tam, he argues, deserves to have an effort made in his defense.

Here some background about Chol HaMoed prohibitions is needed. R. Klapper’s starting point was that all melakhah that is Biblically forbidden on Yom Tov could also be Biblically forbidden on Chol HaMoed. However, the Torah gave the Rabbis discretion (lo mesarkha hakatuv ela lachakhamim) as to whether to maintain those prohibitions.

This formulation raises a challenge for the notion that shaving on Chol HaMoed is a Rabbinic prohibition. Since shaving on Yom Tov is Biblically forbidden, shouldn’t the Rabbis simply have left the Biblical prohibition in place? We might need to say that the Rabbis permitted shaving (and perhaps many other kinds of melakhah)generally, and then made new decrees forbidding them in some but not all circumstances.

This approach makes post-Chazal developments challenging to fit into the framework of Chol HaMoed. Are these developments mutar until proven assur, or assur until proven mutar? R. Klapper claimed that Noda BiYehudah seems to embrace the idea that these developments are assur until proven mutar, and nobody in our shiur brought any challenges to this presumption.

Rabbi Landau understands Talmud Moed Kattan 13a as establishing a blanket exemption from the general prohibitions of melakhah on Chol HaMoed; one may hire a worker who would otherwise not be able to buy food to do such work. This exemption applies to melakhah prohibitions maintained by default, but not necessarily to subsequent Rabbinic prohibitions.

We noted that this exemption’s economic and social impact is interesting. It establishes several days a year when only the poorest Jews can be hired to perform many tasks. This is an economic opportunity for them, possibly at the cost of forcing them to expose their poverty in order to obtain the work. Rabbi Klapper reported that some people express discomfort with having halakhic prohibitions apply differently to the rich and poor, while others see that as intuitively necessary and justified. The question comes up most often nowadays with regard to kashrut and the principle that we are somewhat lenient in contexts of hefsed merubeh, great loss, but Chol HaMoed may be an even more interesting example of deliberately redistributive legislation. We also need to consider how poverty should be verified for these purposes: can/should one hire anyone claiming to be desperately poor, or may/must one demand access to tax returns, expense reports, etc.?

Rabbi Landau argues for Rabbeinu Tam that the permission to shave for those who shaved before Yom Tov is different in kind than the permission for those listed in the Mishnah, who were unable to shave. The Mishnah lists those who fell under the Rabbinic prohibition against shaving made to protect the honor of Yom Tov and are then exempted; those who actually shaved before Yom Tov do not fall under the Rabbinic prohibition at all.

Rabbi Landau then makes a somewhat counterintuitive claim. Rabbeinu Tam held that those who are exempted from the Rabbinic prohibition may shave themselves, or hire anyone to shave them; however, those who never fell under the Rabbinic prohibition may not be shaven by anyone but the desperately poor. Thus Rabbeinu Tam can argue that the Mishnah leaves his case out because it involves a more limited permission.

However, Rabbi Landau continues, perhaps those who reject Rabbeinu Tam’s distinction are actually more lenient than he is; they hold that anyone can hire a desperately poor barber to shave them on Chol HaMoed! Their rejection of Rabbeinu Tam was perhaps based on the mistaken notion that he permitted one who shaved before Yom Tov to hire any barber.

Ultimately, Rabbi Landau concludes this responsum by permitting those who shaved before Yom Tov to hire desperately poor barbers to shave them on Chol HaMoed. He then adds that this is especially so for those who must appear in the society of Gentile nobles, since a. they are accustomed to shaving daily, so that going eight or nine days without shaving will cause them physical pain, and b. they will be mocked if they appear with stubble. Note that the initial question made no mention of noble society, and also that only the initial question mentions the use of depilatory cream as the method of shaving.

Rabbi Landau’s lenient conclusion drew widespread disagreement, and Rabbi Yitzchak Lampronti even claimed in his Pachad Yitzchak that Rabbi Landau had withdrawn it. But the opposite is true; Rabbi Landau actively defended it in several later teshuvot.     

One of those teshuvot is Noda BiYehudah 2:YD80. The questioner, Rabbi Wolf Boskowitz, suggested a clever way to permit close shaves for Jews all year round. A beraita on Talmud Nazir 40b defines the prohibition as against giluach that also involves hashchatah. Hashchatah, or total destruction, requires a razor (so that the hair is cut below the skin); giluach may require the hair to have attained a certain length. One could first scissor-cut the beard, leaving no hair long enough that cutting it would be considered giluach, and then shave with a razor.

Rabbi Landau harshly rejects Rabbi Boskowitz’s proposal on what seemed to us insubstantial grounds. Then, to put things in technical terms, he gets weird and clams up, saying that he will not reply to any further correspondence about the issue “for a reason that I keep to myself”, and that Rabbi Boskowitz should forcefully object to anyone who in practice follows the reasoning outlined in his question. Then, after more harsh rhetoric about the destructive effects of Rabbi Boskowitz’s proposal, he concludes by offering a substantive concern that the initial scissor-cut will not cut every hair to the extent necessary, or that people will delay the razor-cut to the point where some hairs grow back.  

In NBY 2:OC99, Rabbi Landau responds to his in-law’s critique of his willingness to follow Rabbeinu Tam’s da’at yachid in NBY 1:OC13. The critique contends that Rabbi Landau should not have publicized the leniency even if he really believed it, because for a great rabbi to follow a position that was previously rejected by consensus would destabilize halakhic authority in many other areas.

Rabbi Landau responds that his defense of Rabbeinu Tam needs no defense, but concedes that he had thought twice about publishing the leniency. Indeed, he had told the actual questioner that his answer was a one-time hora’at sha’ah based on the unique circumstances presented. However, the reason for his ambivalence was not a concern for the destabilization of halakhic authority on other questions; he dismisses that concern out of hand. Rather, his concern was that Jews who generally shaved themselves daily with razors, in violation of halakhah, but who nonetheless did not shave on Chol HaMoed, would now shave on Chol HaMoed as well. But, Rabbi Landau concludes, “for a reason that I keep hidden with me”, he decided that publishing his leniency was actually a great mitzvah. He repeats this contention forcefully when his in-law seeks to continue the conversation (NBY 2:0C100).

We noted the importance of understanding that people’s relationship to halakhah is not necessarily consistent from the perspective of halakhah, so that for example a person who daily ignores the prohibition against shaving with a razor nonetheless holds meticulously to the prohibition against shaving on Chol HaMoed, even though the latter caused physical suffering and invited social ridicule.

Rabbi Mosheh Sofer (Shu”T Chatam Sofer 1:OC154) somewhat self-mockingly declares that “I will go as a talebearer and reveal the secret” that Rabbi Landau refused to disclose. He contends that Rabbi Landau in fact accepted Rabbi Boskowitz’s argument, perhaps with a different standard of hair-length, on the Biblical level. Rabbi Landau therefore held that publishing his responsum was desirable precisely becausepeople who shaved daily with razors would now do so on Chol HaMoed as well, and therefore keep their beards short enough that they would not end up violating any Biblical prohibition(s) in their first post-holiday shave.

In Rabbi Sofer’s explanation, (which we accepted for lack of an alternative), Rabbi Landau was seeking to improve the halakhic scorecard of the Jewish people by subtly influencing behavior, even though he was changing nothing about the religious attitudes of the population. Specifically, he was publicizing a specious permission of the Rabbinic violation against shaving on Chol HaMoed in order to diminish violations of the Biblical prohibition against shaving generally. This raises important questions about the purposes of psak and the extent to which transparency in psak is a halakhic value.

Shabbat shalom!