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Music During the Omer? A Model Modern Orthodox Responsum

by Rabbi Aryeh Klapper

Dear Rabbi Klapper,

What are your thoughts listening to live music during the Omer?  I know that different people do different things regarding this.

Thanks!

Jack Smith

 

Dear Jack,

Thank you for your question!  Every halakhic question is vitally important in and of itself, but your formulation properly raises a really “big” and broad issue: How should an individual Jew in America today (or Israel, but that deserves separate treatment) decide or discover what their minhag is on issues where multiple legitimate minhagim exist?

A good first step is to study about the existing options.  For an excellent survey of halakhic positions regarding “mourning”, I encourage you to read the essay by Rabbi David Brofsky here.  A very different and valuable presentation is by Rabbi Eliezer Melamed here.  (It may be instructive to compare the breadth and depth of each to the presentations that come up first on Google.)  I won’t try to duplicate their work here, and to some extent will rely on them.  Rather, I will try to frame the discussion in a way that empowers you to make informed and meaningful choices, and look forward to further correspondence.

Mourning is the secondary halakhah of the omer period.  The primary halakhah is the Biblical mitzvah of counting the omer.  This mitzvah connects the barley and wheat harvests, the pilgrimage holidays of Pesach and Shavuot, and marks the period between the Exodus and the Revelation at Sinai.  The counting seems intended to create throughout an atmosphere of excitement, celebration, and anticipation that is wholly incompatible with mourning.  Even without the Beit Hamikdash, and therefore without the mitzvot of sacrifices and pilgrimages, it seems inappropriate to be mourning while on the way to Sinai.

The Omer period begins with Chol HaMoed and the last Yom Tov of Pesach, which override any mourning restrictions.  The rest of Nisan is a period in which certain forms of public mourning, such as eulogies, are forbidden.  If mourning begins on day 1, the first sixteen days are our “Vulcan” period, in which the restrictions of Pesach, Nisan and the Omer combine to forbid both happiness and sadness. It seems that we are required to be purely rational and emotionless, at least in public.  But that doesn’t seem realistic or healthy, and one needs to think about how to handle situations in which, for example, insisting on the absence of music would constitute obvious mourning.  Then Yom HaAtzmaut comes only five days later (or six; another issue deserving separate treatment)!  At the other end, the 3 Days of Hagbalah immediately preceding Shavuot, which commemorate our preparation for Revelation, are also clearly a time of joy.  The New Moons of Sivan and Iyyar also fall within the Omer period.  So how can we mourn?

Yet there is no denying that just about every pre-20th century community observed an Omer mourning custom of 32 or 33 days,  starting either from Omer day 1 (=16 Nissan) or else on 1 or 2 Iyyar.  These customs are generally connected to the report that vast numbers of Rabbi Akiva’s students died during the first 32 or 33 days (as the result of interpersonal misbehavior, the Bar Kochba revolt, or both). The regnant explanation of the later starting dates (1 or 2 Iyyar) is that the mourning period was shifted in some parts of Ashkenaz in order to commemorate the Jewish victims of the Crusades, which reached Ashkenaz in Iyyar.  But why move the dates, rather than just extending them?    I wonder if it was an excuse to leave at least Nissan’s happiness unblemished.

The shifting of the dates yields a very odd halakhic result.  A doubtful custom cannot overcome a certain prohibition (and there is room to question the power of a definite custom as well).  Because there are divergent customs with regard to all dates except Iyyar 2-4 and 6–18, and the vast majority of American Jews do not belong to geographic communities bound by a particular custom, a good formal halakhic argument could be constructed to forbid mourning on many or all the other dates.  Instead, the standard halakhah in practice has been that at least those who identify as generic Ashkenazim may adopt any of the preexisting customs as to dates, and even to change their custom from year to year without hatarat nedarim.  One should ideally develop a consistent practice over time, and strive for consistency within any given year; but there is much space for accommodating the needs of friends who have different minhagim, e.g. friends’ celebrations or roommates who listen to music.  And speaking of music . . .

There are two basic frameworks for Omer mourning

1)  Simchat m’reut – essentially, parties.  In this framework there is no issue with live music per se, only with the atmosphere often generated by live music.  So for example chamber music concerts in a concert hall, when you’re not allowed to talk, would be fine (but receptions before and after would not be, even if there were no music).  Conversely, a party with dancing to recorded music would be forbidden.  Generally any combination of alcohol and music would be forbidden.

2)  Specific customs – Obviously there can be no minhag going back more than a century about recorded music.  Various practices have developed as to whether and how to extend a prior minhag about live music.

These options may reflect two radically divergent approaches to religious expression generally.

The first approach, which was championed (at least in this case) by Rav Yosef Dov Soloveitchik, contends that formal halakhah should set the pattern for all religious behavior.  Ritual creativity is inherently suspect as a potential violation of bal tosif (adding to the Torah) or as an imposition of subjective desire onto objective obligation.

By contrast, Rav Ovadiah Yosef sees popular intuition as a valuable guide to balancing conflicting religious emotions and spiritual sensibilities.  The omer period is legitimately a time of both mourning and celebration.  I contend that this balance is and should be affected by the establishment of the State of Israel and the development of Yom HaAtzmaut, Yom Yerushalayim, Yom HaZikaron, and Yom HaShoah.

If your friends and religious peers do not have a clear practice regarding dates and/or music, and a broadly respected local halakhic authority hasn’t taken a firm stand, and you haven’t been clear about your approach in previous years, there’s a great deal of room for personal choices, but one should have in mind “beli neder” if you want to be able to switch again next year.

I think you should aspire to adopt consistent frameworks for making those choices.

How do you balance the advantages and risks of giving halakhic force to popular spiritual intuition?  Do you see halakhah as a stabilizing force, a kind of spiritual insurance, that enables risk-taking?  As a potentially stultifying and homogenizing force that must be balanced by creativity?  As the best or sole method of turning self-satisfying human actions into service of G-d?

What role does music, recorded or live play in your life and the life of the communities?  Is it an essential and constant background that accompanies all emotions, or limited to celebratory contexts?  Does its periodic conscious absence enable you to focus on religious ideas and contexts that you might otherwise give short shrift to?  Does it make you more susceptible to dwelling unconstructively on negative emotions?  Bear in mind that a powerful halakhic argument can be made that music should always be forbidden while we have no Beit haMikdash, but is nonetheless permitted as a concession to our emotional and religious psychology.

How do you balance the “background” religious emotions generated by the ongoing state of the world and condition of the Jewish people?  Should that balance be different in Israel and the United States?

While you grapple with these questions, I suggest that the default American Modern Orthodox framework is that one should not listen to live music in any context from after Pesach through day 32 (other mourning practices may continue through day 33 for those who identify as Sefardim), excluding Yom Ha’atzmaut, but that listening to recorded music is generally permitted.

Bivrakhah,

Aryeh Klapper

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Ruling Desire and Desiring Rules

This week’s alumni Dvar Torah is by Betsy Morgan

On Shabbat Chol ha’Moed it is customary to read Shir ha’Shirim, a megillah of blooming flowers and blossoming love between two lovers. The are they/aren’t they protagonists are understood to represent God and the Jewish people. Throughout the megillah their metaphors and similes of passion never culminate in a final moment. Indeed, it ends with the Dod running away again.

What is the story of love meant to teach us about our relationship with God? The dialogue is limited to exchanges of compliments, but no conversation. Is this an ideal relationship? The most salient features of the megillah are passion and appreciation, but the megillah also serves an additional purpose in teaching about equality.

The presence of desire in a relationship creates an opportunity for unequal power dynamic. This is first expressed in the Torah in the aftermath of eating from the tree of knowledge. A punishment of Chava is “וְאֶל-אִישֵׁךְ, תְּשׁוּקָתֵךְ, וְהוּא, יִמְשָׁל-בָּךְ”, that she will desire her husband, and he will rule her. Her desire creates a vulnerability that results in an imbalanced relationship. In this archetypical relationship in the Torah, there is a strain of closeness and distance, desire and inequality.

This idea appears again in Bereshit in the aftermath of Kayin killing his brother Hevel. God tells Kayin in regards to sin “הֲלוֹא אִם-תֵּיטִיב, שְׂאֵת, וְאִם לֹא תֵיטִיב, לַפֶּתַח חַטָּאת רֹבֵץ; וְאֵלֶיךָ, תְּשׁוּקָתוֹ, וְאַתָּה תִּמְשָׁל-בּוֹ”, is it not so that if you are good you will overcome it, because sin is crouching at your doorstep, it desires you and you rule over it. Like a virus needs a host, sin desires the sinner, and thus Kayin can rule over it.

The final time this language is used in Tanach is in Shir ha’Shirim “אֲנִי לְדוֹדִי, וְעָלַי תְּשׁוּקָתוֹ”, I am to my beloved and he desires me. Here is a reversal from Bereshit. First, a person is speaking, whereas God was the speaker of both instances in Bereshit. The affected parties are the active ones, aware of their situation and standing. Second, in Shir ha’Shirim, the man desires the woman, the opposite from Chava and Adam. We would expect that this would make him the vulnerable party, at the woman’s mercy to rule over him. However, she is declaring herself to him, making herself equally vulnerable to him. Using her power, she abolishes the power imbalance. They are equal.

Tracing this concept of desire and power gives Shir ha’Shirim a culmination of a larger story, showing how two entities can be vulnerable and equal. God desires us to be His people, as evidenced in the Exodus story from Egypt and throughout our journey in the desert. At Har Sinai we are declared His nation and are sustained in the desert until delivered to Israel. We desire God to be our God, and demonstrate this through the fulfillment of mitzvot and learning His Torah. Pesach is a time when we review the roots of our relationship with God, and renew it by teaching our history to our families at the Seder. The story in Shir ha’Shirim never really ends, because we are still playing the parts in this relationship through the choices we make every day.

Betsy Morgan (SBM 2013, 2014) is a Junior at Drexel University studying Materials Science and Engineering. She is currently serving as the Gabbai for Drexel’s Orthodox Minyan Group and as a Campus Fellow for the Jewish Institute for Ideas and Ideals.

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CMTL Pesach Reader, 2017 Edition

Check out the 2017 edition of the CMTL Pesach Reader for Divrei Torah about Pesach from Rabbi Klapper and CMTL alumni!

http://www.torahleadership.org/categories/pesachreader2017.pdf

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הא לחמא עניא (from the Aryeh Klapper Haggadah, in progress)

  • הא לחמא עניא דאכלו אבהתנא בארעא דמצרים.

    כל דכפין – ייתי וייכול;        כל דצריך – ייתי ויפסח.

    השתא – הכא;                                         לשנה הבאה – בארעא דישראל.

    השתא –  עבדי;                                                                           לשנה הבאה – בני חורין.

    This is the bread of poverty that was eaten by our ancestors in the land of Mitzrayim
    Anyone hungry – let them come and eat!  Anyone in need – let them come eat a Pesach!
         This year – here;                                                        The coming year – in the land of Israel!
    This year – slaves;                                                                            The coming year – free people!

    In the United States, we generally recite this paragraph ritually in a locked house or apartment, or a wellguarded resort complex, where the poor – unless previously invited – could not possible hear us. This seems too ironic for words. But it is also true that we live in environments where the desperately and publicly poor are rarely known to us personally, and so reasonable concerns of safety and privacy make the idealistic framework set out here uncomfortable and likely unwise. Can we nonetheless make sense of it? Let us begin by recognizing that the paragraph is structured chronologically – we start in Mitzrayim at the point of the Exodus (“This is the bread our ancestors ate in the Land of Mitzrayim”), move to Israel during the Temple period (““Anyone in need – let him come eat a Pesach”), acknowledge contemporary reality, and finally express our hopes for the future. Our scripted invitation to the needy is a deliberate flashback to the Temple period, when all Israel was camped out in Jerusalem, and the “haves” provided for those who could not afford their own lamb for the Pesach sacrifice. It is not intended as a direct critique of Diaspora practice. Nonetheless, surely one purpose of the Pesach sacrifice was to create a circumstance in which each Jew of means had direct responsibility for the poor. Can we maintain the spirit of the law when the letter remains sadly out of reach? I don’t think the solution is necessarily open-air barbecue seders in public parks. Chazal (Bava Batra 7b) recognize a legitimate tension between the right to privacy and the obligation to remain accessible to the poor. Residents of a courtyard may legally compel each other to pay for the construction of a gatehouse; yet Elijah the prophet stopped visiting one chasid’s courtyard once a gatehouse was built, in protest against his exclusion of the poor. The proper balance between these values depends on social and individual circumstances. In a perfect world, no one responds to the last-minute Pesach invitation, because all the poor have already been provided for. We can recline in the privacy and freedom of our houses and hotels without guilt, but only if we have done our part in advance to ensure that the poor have the wherewithal to make their own sedarim.

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Rav Soloveitchik on Semikhah

by Rabbi Aryeh Klapper

INTRODUCTION

This essay is devoted to a purely conceptual “Brisker” account of the Rav’s analysis, in many contexts, of classical semikhah and eligibility for the same.  If this analysis survives critique, a subsequent essay will place it in the context of a central theme of the Rav’s philosophic work.  If that analysis as well emerges recognizably from critique, a third and last essay will draw tentative but concrete implications for contemporary practice with regard to eligibility for semikhah, and humbly submit them for critique.

No attempt will be made in this essay to evaluate the Rav’s work, only to present it.  The practical weight of any implications derived from this analysis will depend on the general weight one assigns to the Rav’s opinions in determining individual or communal practice, and/or on evaluation of the argument on its merits as a reading of the tradition.

I have followed the approach of many of the Rav’s direct talmidim in writing the Rav’s material directly, rather than citing him in the third person.  Any content that I believe to be my own is specifically marked {ADK}.  There may be places where I have misunderstood the Rav or made an argument that seems necessary for his thesis but which he himself never made.  Readers are encouraged to check my analysis against the available evidence of his positions, to which I have tried to provide fairly comprehensive access in the endnotes.  Readers who wish to study the Rav’s directly relevant positions in advance of my presentation are directed to

“קביעת מועדים על פי הראיה ועל פי החשבון”, in קובץ חידושי תורה

“בענין תקנת משה”, in שיעורים לזכר אבא מרי ז”ל כרך ב

“קונטרס הסמיכה” in ארץ הצבי

רשימות שיעורים to נדרים ח:, שבועות ל., שבועות לא.,  בבא קמא טו., בבא קמא פד:׳

The Rav Thinking Aloud on the Parsha: Sefer Bamidbar

“Semichah of Yehoshua” in The Rav Thinking Aloud on the Parsha: Sefer Bamidbar

“הערות בריש מסכת אבות”, in בית יצחק כרך כב עמוד סד

 

 

The rest of the article can be found here.

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An Introduction and Tribute to Nechama Leibowitz’s Torah

This week’s alumni Dvar Torah is by Joshua Skootsky

This year, the yartzeit of Nechama Leibowitz (1905 – 1997) falls out during parshat Vayikra. In honor of her incredible work teaching Torah and encouraging the study of Torah, this devar Torah will be based on her teachings. This is meant literally. Perhaps best-known to the English speaking world through the translated essays in “Eyunim – Studies in Torah,” originally published (Hebrew) in 1954, earlier, in 1942, she began printing and mailing out the original parsha sheet – her gilyonot. Unlike today’s parsha sheets, gilyonei Nechama had questions, developed out of reading the text of the parsha closely, sometimes with unfamiliar questions based on familiar commentators, and sometimes along with more obscure or contemporaneous commentators, such as Umberto Cassuto or Benno Jacob. Nechama would mail out the sheets, and her “subscribers” would learn them and attempt to answer them. Then they would mail them back, and Nechama would mark their papers before mailing them back, to give feedback to her many students. To receive a rare יפה from her would fill the “student,” of any age or achievement in Torah learning, with well-deserved pride.

All of her parsha sheets are available online: http://www.nechama.org.il/pages/

This one can be found here: http://www.nechama.org.il/pages/737.html?1

For Vayikra, I will “walk through” the process of reading the gilyon, her questions, and then trying to answer them. For פרשת ויקרא תשי”ג, parshat Vayikra of the year 1953, Nechama first quotes the Abarbanel, who cites the Midrash in Vayikra Rabba to Acharei Mot.

Rabbi Pinchas in the name of Rabbi Levi stated a parable:

“It is like a King whose heart is filled with love for his son, and his son is accustomed to eating non-kosher things. The king said: feed him from my table, and he will learn on his own to no longer eat non-kosher things.

Similarly, the nation of Israel were sinners, worshipping idols, and were bringing sacrifices to forbidden demonic spirits, and causing themselves to be harmed. The Holy One, Blessed Be He, said: Offer your sacrifices before me, near the Tent of Meeting, and separate yourselves from idol worship!”

Nechama then cites Rabbi David Tzvi Hoffman, from his commentary to Vayikra:

“After careful and extensive study, it seems clear that the version of Vayikra Rabba that the Abarbanel cites is completely textually flawed. In the version he cites, the story cannot be understood and is illogical. Indeed, in all the published versions of the midrash, we have a different text:

‘and his son is accustomed to eating non-kosher things. the King said: let this one always be by my table, and he will learn to no longer eat non-kosher things.

Similarly, since the nation of Israel were passionate about idol worship…’”

Then Nechama asks three questions. Some of her questions would be marked with an “x”, indicating that they were harder than usual. Some had “xx”, indicating that they were very hard. For this gilyon, none of the questions are marked with “x”s, so I will venture to answer them.

  1. Explain, how it is possible for the Midrash, in the version cited by the Abarbanel, to serve as a support for the opinion of the Rambam about the sacrifices.
  1. Explain why this version “cannot be understood and is illogical” according to Rabbi David Tzvi Hoffman?
  1. What is the essential difference between these two versions of the midrash?

Before I answer them, note pedagogically what is going on here. Questions 1 and 2 require the student to offer two explanations, from two points of view, that contradict each other! Then, Question 3 asks the student to identify what the difference in meaning between the two versions would be. This is all based on two versions of a Midrash! Nechama’s incredible attention to language and Hebrew was not limited to the text of Chumash, and allowed her to teach incisive lessons where others heedlessly continued reading.

My answers:

  1. Rambam, in Moreh Nevuchim 3:32,  takes the position that the purpose of many commandments, including the sacrifices, was to gradually and gently bring humans to gradual knowledge of God, rather than attempt to bring them from one extreme to another all at once.

Therefore, in the version of Midrash cited by the Abarbanel, the son continues to engage in behavior similar to what he was doing before the King took an interest in him. Eventually, by merely being brought closer to the King, the son will slowly, at his own speed, come to knowledge of God and proper behavior.

  1. According to Rabbi David Tzvi Hoffman, it does not make sense for the King to basically allow his son to continue the same bad behavior. It is implied that the King serves his son the same non-kosher food that he ate before. For Rabbi David Tzvi Hoffman, this seems impossible. Therefore, he prefers the version where the son is brought close to King’s table, so that he can learn which foods ought to be eaten. The change from worshipping idols to worshipping God is analogous to the change from eating non-kosher food to kosher food, even if the means of worship, including animal sacrifice, remain similar.
  1. The essential difference between the two versions of the Midrash is whether or not the King provides non-kosher food for his son. It seems strongly implied in the first version of the Midrash that this is the case, and Rabbi David Tzvi Hoffman’s forceful objection, that the Midrash as cited by Abarbanel “cannot be understood and is illogical,” actually supports and sustains that read.

The Abarbanel says that, in of themselves, the sacrifices were analogous to the non-kosher food of the midrash, but moving the sacrifices into Mikdash, governed by the rules in Sefer Vayikra, was an improvement over the Israelites’ worship of idols. This would eventually lead to proper knowledge of how to serve God.

Rabbi David Tzvi Hoffman says that the purpose of the sacrifices instituted in Sefer Vayikra was to direct the Israelite’s passion for worship towards Hashem exclusively. By directing the sacrifices to Hashem, the means of worship that previously was used for illicit idolatry becomes “kosher.”

So, out of two different texts of the Midrash, cited by two relatively obscure sources, Abarbanel and Rabbi David Tzvi Hoffman, Nechama taught two perspectives on the sacrifices detailed in Sefer Vayikra, each belonging to a great rabbi whose opinions were not explicitly stated, but had to be drawn out by a master teacher.

May her memory, and the Torah that she teaches, be a blessing.

Joshua Skootsky (SBM 2012, 2015) is a student at Yeshiva University.

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Does “It’s Never Been Done” Imply “It Should Never Be Done”? Part 2

by Rabbi Aryeh Klapper

Part 1 of this series can be found here.

PART 1 of this series established that there is no bar under halakhah to arguing that an unprecedented action is halakhically permitted.  This principle is expressed pithily by Mishnah Zevachim 12:4 as “אין לא ראינו ראיה”, “‘We have not seen’ is not proof”.  Nonetheless, scholars may be required to conform when unsophisticated communities object to a practice on the grounds that they have never seen it done, even when the objection is halakhically groundless.  I argued that the Modern Orthodox community should be regarded as sophisticated by historical standards, but that there might – or might not – be reasons to treat it as if it were unsophisticated in certain cases.

RAMO Choshen Mishpat 37:22 expresses the position that despite the Mishnah Zevachim, there are circumstance under which “לא ראינו הוי ראיה”, “‘We have not seen’ is proof”.  This installment will seek to identify as precisely as possible the conditions under which this statement of RAMO applies.

Siftei Cohen (Shakh) to 37:22 connects this RAMO to the opening of Shulchan Arukh Yoreh Deah (YD), the very first topic covered in the formal semikhah curriculum.  YD 1:1 itself is based on the opening line of Mishnah Chullin: “הכל שוחטין ושחיטתן כשרה”, “everyone slaughters, and their slaughtering is valid”.  Who is included in “everyone”?  Talmud Chullin lists a variety of marginal men, which leaves open the possibility that women are excluded.   Beit Yosef mentions that the peculiar work Hilkhot Eretz Yisroel excludes women, but presents the position that women are included as the near-absolute consensus of halakhic authorities, and to my knowledge this claim has not been challenged since.

However, granted that this is true as halakhah, Beit Yosef also cites the position of Agur, a late fifteenth century German-Italian halakhic collection.  Agur writes that while all halakhic authorities agree that women may slaughter legally, a custom has arisen that they do not slaughter, and this custom should be regarded as having legal force going forward.  Agur takes this position using extravagant rhetoric, describing it as “מנהג מבטל הלכה”, “custom nullifying law”.

אף על פי שדעת הפוסקים כן

המנהג בכל גלות ישראל שלא ישחטו  

ומעולם לא ראיתי נוהג לשחוט  

ולכן אין להניחן לשחוט  

כי המנהג מבטל הלכה  

.ומנהג אבותינו תורה היא

Even though the opinion of the decisors is such (that women may slaughter)

the practice in all the diaspora of Jewry is that they should not slaughter

and I have never seen a woman practice slaughter

and therefore one should not allow women to slaughter

because the custom nullifies law

and the custom of our ancestors is Torah.

Beit Yosef himself nonetheless rejects Agur.

:ואני אומר

– שאם היה אומר שהיו רוצות לשחוט ולא הניחון

,היה אפשר לומר שהיא ראיה

.אך ראיית לא ראינו אינה ראיה

But I say:

If he has said that women wished to slaughter and were not allowed to do so –

It would be possible to say that this is a proof

but a proof of the form ‘We have not seen’ is no proof.

He accordingly codifies in Shulchan Arukh that women may slaughter.  RAMO, however, cites what appears to be the position of Agur:

יש אומרים

,שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

וכן המנהג שאין הנשים שוחטות

Some say

that women should not be allowed to slaughter

as they have already adopted the practice of not slaughtering.

and this is the custom: Women don’t slaughter.

Shakh contends that RAMO’s adoption of Agur’s position here reflects his statement in CM 37:22 that under some circumstances “I have not seen” is a valid proof.

[בזה ישבתי בתחילת ספרי שפתי כהן ליורה דעה [סימן א’ סק”א] דברי האגור [סי’ אלף ס”ב

שכתב

שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

.שהב”י שם השיג עליו דלא ראינו אינה ראיה

,ואני כתבתי דבמנהג הוי לא ראינו ראיה

.וכמ”ש מהרי”ק והר”ב כאן  

On this basis I justified at the outset of my work Siftei Cohen to Yoreh Deah the words of Agur,

who wrote that

women should not be allowed to slaughter,

as they have already adopted the practice of not slaughtering.

Beit Yosef there challenged him by saying that “I have not seen” is no proof,

But I wrote that with regard to minhag “I have not seen” is a proof,

as Maharik and RAMO write here.

The key distinction Shakh makes is about the level of halakhah.  In areas that are Biblical or Rabbinic law, “I have not seen” is no proof.  But in areas of customary law, “I have not seen” is proof.  

Shakh does not suggest, or even contemplate, a claim that the fact that something hasn’t been done is the reason that it may not be done going forward; it is merely evidence that a custom to that effect was deliberately instituted.  

,וטעם נכון יש בדבר

דכיון שהמנהג כך

,והדבר שכיח כן

,אם היה הדבר מותר – אי אפשר שלא היינו רואים פעם אחת כן נוהגים להתיר

,אלא ודאי המנהג הוא כן

שנהגו בכונה לאסור

וכן להפך

There is a solid rationale for this.

Since the practice is such

and the matter comes up frequently

if it were permitted – it is impossible that we would not have seen once them practicing allowing this,

rather certainly the custom is such,

meaning that they intentionally adopted the practice of making it forbidden

or vice versa.

Shakh states that his position is based on Maharik and RAMO.  The question then is whether Maharik and RAMO in fact support his distinction between levels of law.  

Shulchan Arukh CM 37:22 discusses a halakhic difficulty with democracy.  In a democracy, every member of the community is party to any suit between the community and an individual member, just as in the United States government attorneys appear for “the People”.  Therefore, every member of the community should be disqualified as a witness in such case as nogeia (interested), and all laws and agreements should be unenforceable.  Mechaber explains that democratic “social contracts” include a waiver of the requirement for valid witnesses.  For this reason, even relatives can testify in such cases.

RAMO adds the following:

– כל דבר התלוי במנהג בני העיר

,אין אומרים בו תרי כמאה

אלא אזלינן ביה בתר הרוב

וכן כל כיוצא בזה

.שאין אנו צריכים עדות ממש

,(וכן לא אמרינן בכיוצא בזה ‘לא ראינו אינו ראיה’, אלא הוי ראיה (מהרי”ק שורש קע”ב

Everything that depends on the minhag of the citizens –

we do not say regarding it that two witnesses are the equivalent of 100;

rather we follow the majority of witnesses.

and all similar standards

since we don’t require formally valid testimony.

Similarly, we do not say in such matters that “’I have not seen’ is no proof”, rather it is a proof (Maharik 172)

The key sentence here is the first – “Everything that depends on the minhag of the citizens”. SHAKH apparently understands minhag here to refer to law at the halakhic level of custom.  I contend, however, that this is clearly incorrect in context.  Minhag here does not refer to customary law, but rather to facts of practice which are in and of themselves halakhically neutral, but which issues of Biblical or Rabbinic law depend on.

For example:  Halakhic day-labor contracts include an implicit stipulation that the hours and conditions of work conform to standard local practice.  Suppose that an employer hired a day-laborer and then sought to force that employee to pay to rent the necessary tools from him.  The employee objects and brings witnesses who state that no employer has ever made such a demand, and that it therefore violates community standards.  A beit din would accept this testimony, even though it has the form “we have not seen”, and decide for the employee.

However – other employees and employers would be free in the future to explicitly agree to such a rental.  The beit din’s ruling is based on descriptive minhag, and relates to Biblical and Rabbinic law; the issue has nothing to do with prescriptive minhag.

Accordingly, RAMO here has no relationship to the position of AGUR regarding prescriptive minhag, and SHAKH has no evidence that testimony of the form “I have not seen” is acceptable in cases regarding prescriptive minhag.  In other words, the argument that “It’s never been done” means “It should never be done” is not correct in any area of halakhah, whether Biblical, Rabbinic, or customary.

In PART 3 of this series we will see that RAMO’s position correctly represents Maharik, and that many great acharonim have similarly concluded that SHAKH’s contention regarding minhag cannot be sustained.

Shabbat shalom!

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