299) HOW WE CHOOSE WHAT WE OBSERVE:

A Guest Post by Rabbi Boruch Clinton

Introduction

Understanding the particular set of minhagim your community has chosen and how they came to choose it is a worthwhile goal. It’s also useful to try to know why it was just this rather than some other combination that, over time, took hold. In some instances, the narrative will revolve around achieving higher levels of adherence to halacha. Other times, choices are framed as the best options for solving looming problems. But there’s often no narrative at all. Some changes just seem to happen organically without any obvious community sponsor or plan.

Those are all ideas I try to address within my Finding Tradition in the Modern Torah World project. [See https://marbitz.com/home/rabbi-s-r-hirsch/finding-tradition-in-the-modern-torah-world/]

But I suspect that successfully identifying the patterns underlying a community’s minhagim is less important than uncovering their incoherence. In fact, the practices observed by many Torah observant communities are probably mostly remarkable for their lack of consistency.

Here, I’m going to explore the problem using concrete and easily verifiable examples of cases where a community’s accepted practice stands opposed to a higher halachic ideal (לכתחילה) or even to baseline halachic standards (בדיעבד).

My theory is that a community’s customs will rarely reflect entirely consistent standards and that no one has a claim to perfection. Not only does this seem factually true, but it’s unavoidable. The authentic halachic process – encompassing thousands of years of growth and dispersion and serving communities in all geographic regions – is far too complex to expect it to produce uniformity.

I’ll focus here primarily on examples of widespread weaknesses in observance within those communities that are perceived as being the most meticulous in their observance and who tend to claim the closest fidelity to core halachic sources. But a similar study would be equally justified for any group of Jews.

I would note that none of this is to suggest that the examples you’ll soon see represent negligence of halachic practice. There are, for each of them, reliable lenient opinions. My point is only to observe how widespread such lenience is even in communities professing to prefer the highest halachic standards.

Similarly, I’m certainly not claiming that there are (or aren’t) systemic flaws in any one community’s observance, or that they’ve somehow lost their connection to authentic Judaism. Rather, I’m only trying to identify and understand the scope and nature of that connection.

Engaging in business activities on Shabbos

Over the past decade or two it’s become acceptable for Orthodox publishers to print hundreds of eye-catching ads in their magazines even though they sell those magazines with the knowledge that they’ll almost always be read on Shabbos. Some of their advertisers promote activities that might be considered mitzva-oriented and, thus, appropriate for Shabbos. But the majority are selling commercial food, clothing, and real estate opportunities.

The magazines are immensely popular, with at least one title purchased by hundreds of thousands of readers each week. For many, browsing through the articles and ads printed in multiple magazines has become a weekly ritual.

But does halacha permit such reading? One may not read mundane documents (שטרי הדיוטות) on Shabbos because it might lead to erasing part of the content (רמב”ם שבת כג:יט). Technically, street signs and food package labelling could fall into the category of שטרי הדיוטות, but I doubt anyone would adopt that restriction these days. Reading patterns have changed a lot over the centuries. But it would be much harder to dismiss the problem that halacha presents for commercial ads.

Beyond that though, reading ads is a kind of business activity, which halacha certainly forbids. The Mishna Brura (307:63) refers to the Shevus Yakov as the lenient party in the debate over reading newspapers on Shabbos. While the Shevus Yakov permits newspapers in general as long as you skip the business parts, others forbid reading any part of a newspaper because of the business information it contains.

It’s highly unlikely that many Shabbos readers of modern charedi magazines are able or even willing to ignore the commercial ads. They’re designed to be attractive and interesting. The hundreds of individual charedi Jews involved with producing those magazines – along with the rabbinic leadership they consult – are obviously fine with that.

Wearing a sheital

Married women who cover their hair with a sheital (wig) rather than some kind of turban or tichel are enthusiastically portrayed in much of the orthodox world as following the ideal route. It can be argued that there are some perfectly sound reasons for permitting the practice, but it’s much harder to claim that, in halachic terms, it’s actually preferred.

There is certainly no shortage of serious halachic authorities who consider a sheital to be an adequate hair covering (ובכללם הרמ“א אורח חיים שג:ו והמגן אברהם אורח חיים עה:ה). But there’s also quite a lineup on the other side. Among the powerful voices who feel that a woman wearing a wig is equivalent to one who exposes her hair in public are the Be’er Sheva (סי’ יח), Rabbi Shlomo Kluger (קנאת סופרים – דף כד ע”ב תשובה עב), the Chasam Sofer (בהגהותיו על שו“ע סימן ע”ה) and, in more recent generations, the Klausenberger Rebbe (שו“ת דברי יציב יו”ד ח“א סימן נו), and Rabbi Ovadya Yosef (יביע אומר ח”ה אה”ע סי’ ה).

One should note that the חזון איש is reported to have preferred the sheital because it will often do a better job covering even loose or stray hairs. However, that won’t help for the stricter opinions, because they believe a woman wearing a sheital has already effectively exposed all of her hair.

So one can’t say it’s categorically wrong for a woman to wear a sheital. But you also can’t say that it reflects the highest halachic values.

Secular courts

Under normal circumstances, a Jew may not have his legal disputes heard before secular courts. The Shulchan Aruch (חושן משפט כו:א) appears unequivocal about it:

אסור לדון בפני דייני עכו“ם ובערכאות שלהם (פי’ מושב קבוע לשרים לדון בו) אפי’ בדין שדנים בדיני ישראל ואפי’ נתרצו ב’ בעלי דינים לדון בפניהם אסור וכל הבא לדון בפניהם הרי זה רשע וכאילו חירף וגידף והרים יד בתורת מרע”ה

It is forbidden to seek a judgment from non-Jewish law courts, even if they would rule like the law of the Torah and even if both litigants agree. Anyone who goes before their courts is evil (הרי הוא רשע) and it is as though he has blasphemed and raised his hand against the Torah of Moshe.

However, as the very next paragraph in Shulchan Aruch illustrates, there are exceptions:

היתה יד עכו“ם תקיפה ובעל דינו אלם ואינו יכול להציל ממנו בדייני ישראל יתבענו לדייני ישראל תחלה אם לא רצה לבא נוטל רשות מב”ד ומציל בדיני עכו”ם מיד בעל דינו

If the non-Jewish court system has jurisdiction and the opposing litigant is recalcitrant, making it impossible to reclaim damages through Jewish judges, you should first make a claim before Jewish judges and if (the litigant) refuses to respond, request permission from the Jewish court so you can reclaim damages through a non-Jewish court.

These days, many of even the most religious Jews take their disputes to non-Jewish courts, often without first gaining the approval of a bais din. It’s a complicated legal and commercial environment that we live in right now, and issues like impartiality and the power of enforcement are frequent and often serious considerations.

But there have been many relatively recent and very public cases involving the leaders of major hasidic communities fighting in non-Jewish courts over property and dynastic authority. Those have also left their mark on how these laws are observed and applied more generally. And this, too, represents a measurable evolution in the way some Jews choose to observe halacha.

Eating before mitzvos

Halacha often limits what and how we eat when there’s a particular mitzva observance pending. As the gemara (Berachos 10b) describes it, taking care of your personal needs before praying for them is a deep internal contradiction. As another example, it’s common in some circles to avoid making kiddush and eating before Musaf on Rosh Hashana because we haven’t yet heard the shofar.

So it’s a bit odd to see the way so many yeshivos and kollelim schedule supper at 6:30 and ma’ariv at 9:45 or 10:00. This will continue even through the winter months when the Shema could and should be recited as early as 5:00.

Invariably, whenever I bring this up I’m told “It’s fine: we won’t forget to recite Shema because we always attend a regular (קבועה) ma’ariv.” As it turns out, I don’t personally know anyone who always attends a regular ma’ariv: who doesn’t have weddings, meetings, or yeshiva dinners at least once or twice a week?

An alternative response is “It’s fine: other people (my wife; my chavrusa) will remind me to recite Shema.” But apparently it’s far too easy to completely forget about hearing the shofar while sitting in a crowded synagogue on Rosh Hashana and eating a piece of cake at a kiddush. After all, who’s there to remind you?

As far as I can tell, this is another case of communities picking and choosing their observance for largely non-halachic considerations.

Laws of mourning

It should hardly be surprising that the ways we observe the rules of mourning evolve from generation to generation. Even though a good few books have been published in recent years presenting a particular set of rules as universal “laws,” arguably, they’re mostly based on ספר גשר החיים. That master work, by Rabbi Y.M. Tucazinsky, describes the customs of the Jerusalem chevra kaddisha in the first half of the 20th Century. I’m not convinced all parts of the book were meant to be taken as permanently and universally applicable.

But we can all agree there’s a core set of halachos in this area that are universally binding. And if any halachos should fit that description, you’d expect it would be those in the Shulchan Aruch. Nevertheless, in at least one respect, the Shulchan Aruch itself is now largely ignored.

Here (Yore Deah 391:2-3) is what I’m referring to:

על כל מתים נכנס לבית המשתה לאחר שלשים יום על אביו ועל אמו לאחר י”ב חדש … הגה: ובחבורת מצוה כגון שמשיא יתום ויתומה לשם שמים ואם לא יאכל שם יתבטל המעשה מותר לאחר ל’

(Mourners) for any relative may enter a house of celebration after 30 days. (If the relative was a) father or mother, after 12 months…(Remah:) And for a group performing a mitzva, like marrying off two orphans for free, such that if (the mourner) doesn’t eat there the event will be cancelled, it’s permitted after 30 days.

ליכנס לחופה שלא בשעת אכילה לשמוע הברכות יש מתירין ויש אוסרין אלא עומד חוץ לבית לשמוע הברכות … הגה: … אבל בחופה שעושין בבית הכנסת שמברכין שם ברכת אירוסין ונישואין ואין שמחה כלל – מותר מיד אחר שבעה (הגהות מיימוני). ויש אוסרין עד שלשים (שם בשם ראבי“ה). וכן נראה לי. … יש מתירין לאבל לאכול בסעודת נשואין או ברית מילה עם המשמשין ובלבד שלא יהא במקום שמחה כגון בבית אחר (כל בו וב”י בשם סמ”ק) ויש אוסרין (הגהות אשירי) וכן נוהגין. רק שהאבל משמש שם אם ירצה ואוכל בביתו ממה ששולחין לו מן הסעודה.

Some permit attending a chuppah ceremony where there is no eating just to hear the blessings. And some only permit standing outside to hear the blessings…(Remah:) But it’s permitted immediately after shiva to attend a chuppah that takes place in a synagogue where they just make the blessings without accompanying celebration. Some forbid that until after 30 days, and that seems correct to me…Some permit a mourner to eat at a wedding or bris with the servants as long as they’re in a different building and not in the celebration hall. And some prohibit (even that), and that is the custom. However, a mourner may assist (at the celebration) if he wants, and then eat food from the celebration in his own house.

I’m certainly not criticizing the current widespread custom to permit, say, parents of a new couple to attend their children’s weddings despite a recent loss. My father attended my wedding in that state, and my wife similarly attended the wedding of one of our children. But I am saying that there doesn’t seem to be any source in classical halachic literature to support the practice. Or, in other words, it’s another informal halachic evolution.

Hats on Shabbos

May one wear a hat on Shabbos – and particularly outside in a place where there’s no eruv? Well, in halachic terms, that would seem to depend on the hat. Here’s how the gemara (Shabbos 138b) presents it:

ואמר רב ששת בריה דרב אידי האי סיאנא שרי והאיתמר סיאנא אסור לא קשיא הא דאית ביה טפח הא דלית ביה טפח אלא מעתה שרביב בגלימא טפח ה“נ דמיחייב אלא לא קשיא הא דמיהדק הא דלא מיהדק רש”י: טעמא לאו משום אהל הוא אלא משום שלא יגביהנו הרוח מראשו ואתי לאתויי ארבע אמות הלכך מיהדק בראשו שפיר שרי לא מיהדק אסור

Rav Sheshes the son of Rav Idi said: “(going out wearing) felt hats (on Shabbos) is permitted.” But does it not say “felt hats are forbidden?” That’s not a problem: one refers to (a brim of at least) a tefach (around four inches – which is considered a halachic roof), while the other refers to a brim that’s less than a tefach. But based on that, a cloak that extends more than a tefach beyond ones head, is it, too, forbidden? Rather, (the felt hat sources are) not a contradictory: one refers to (a hat that’s) on tight and the other refers to (a hat that’s) not on tight. Rashi: … so that the wind won’t be able to blow the hat off perhaps causing you to carry it four amos.

The Shulchan Aruch (Orech Chaim 301:40-41) rules strictly according to both approaches:

כובע שהוא מתפשט להלן מראשו טפח אסור להניחו בראשו אפילו בבית משום אהל

A hat whose brim extends more than a tefach beyond your head may not be worn, even within a house, because of (the prohibition of erecting an) ohel (roof)

לצאת בשבת בכובע שבראשו העשוי להגין מפני החמה יש מי שאוסר משום דחיישינן שיגביהנו הרוח מראשו ואתי לאתויי ד’ אמות ברשות הרבים אלא אם כן הוא מהודק בראשו או שהוא עמוק שראשו נכנס לתוכו ואין הרוח יכול להפרידו מראשו או שהוא קשור ברצועה תחת גרונו דבהכי ליכא למיחש למידי

Some forbid going outside on Shabbos with a hat made to protect from the sun because we’re afraid the wind might blow it from your head and you’ll come to carry it four amos in a public place. But if it’s worn tightly on the head, or it’s made so the head fills it to the point where wind cannot blow it off, or it’s tied with a strap beneath your throat, then there’s nothing to worry about.

It would seem that, even without especially broad brims, current popular Orthodox fashions in hats might not be entirely compatible with the highest levels of halachic observance.

Honesty

Some areas of halacha are complex and can appear ambiguous. Knowing when and how to apply a particular principle can sometimes be confusing. But not this one. The Torah (Devarim 25:16) isn’t shy about telling us what it expects.

כי תועבת ד’ אלו’ כל עשה אלה כל עשה עול

For it is an abomination of God all who do this, all who do wrong

Who is that verse talking about? Jews who own inaccurate weights and measures, even if they don’t actually use them. Such people are an abomination. I can’t imagine what the Torah would say about people who actually cheat.

But I don’t need to imagine what else the Torah teaches us through that passage: the gemara (Bava Metziya 49a) tells us:

שיהא הן שלך צדק ולאו שלך צדק

That your “yes” should be just and your “no” should be just

Meaning, when you say “yes” or “no” it should be a fully accurate reflection of your intent.

Nevertheless, there are communities whose members are taught it’s permitted to scam government programs or cheat insurance companies. These are not just the crimes of desperate people whose judgment is clouded by the pressures of life. But organized, premeditated crime.

The late Rabbi Shimon Schwab addressed this kind of crime years ago in an article:

“Rabbi” so and so, who sits in court with his velvet yarmulka in full view of a television audience composed of millions of viewers, is accused of having ruthlessly enriched himself at the expense of others, flaunting the laws of God and man, exploiting, conniving and manipulating – in short, desecrating all the fundamentals of Torah Judaism…

To defraud and exploit our fellowmen, Jew or gentile, to conspire, to betray the government, to associate with the underworld elements all these are hideous crimes by themselves. Yet to the outrage committed there is added another dimension, namely the profanation of the Divine Name…

Therefore, no white-washing, no condoning, no apologizing on behalf of the desecrators. Let us make it clear that anyone who besmirches the sacred Name ceases to be our friend. he has unwittingly defected from our ranks.

Gratitude

Character counts for a great deal in Torah literature. We’re expected, for instance, to show appreciation for even those whose kindness is far from selfless and spontaneous. To illustrate from Chumash (Devarim 23:8), our historical national experience in Egypt was, shall we say, troubled. Nevertheless we’re still expected to go out of our way to avoid causing pain to individual Egyptians who might live among us.

לא תתעב אדמי כי אחיך הוא לא תתעב מצרי כי גר היית בארצו רש”י: שהיו לכם אכסניא בשעת הדחק

Do not reject the Edomite for he is your bother. Do not reject the Egyptian for you were a stranger in his land. (Rashi:) For they hosted you in a difficult time.

Not a lot of ambiguity there. Which begs the question: why do so many charedi Jews in Israel express hatred for their government in such vile and nasty ways? Why do they permit their children to use such offensive and historically ignorant language (“Naziim”) against the people tasked with protecting them?

And, most of all, where is the gratitude for everything the government has done for the Torah observant community?

Sure, the modern Israeli government – like all governments – does stupid things from time to time. And some of their members and agencies promote reprehensible opinions. But through the past few decades, no one in the Israeli government has, to my knowledge, threatened to shut down or limit the activities of any kollel that finds its own legal source of financial support.

In fact, most “full-time” Torah study undertaken in Israel would be impossible without the financial and security support of the government. By stark contrast, the kings Dovid and Shlomo, with all their fabulous wealth and power, didn’t support a single avrech in kollel. You can hardly fault a secular government for wanting to limit their support to only a few tens of thousands of talmidim!

They don’t distribute public taxpayer-generated funds quite as much as some people would like. But are they worse than Egypt?

Belief

Loud voices in the charedi world have, from time to time, attacked the beliefs taught by various orthodox academics. In my personal opinion, some of those attacks have been justified and others not. The conversation inspired by those attacks has, intentionally or not, led to greater awareness of the principles and sources underlying the issues. Overall, I’d say that’s been healthy.

Respectfully arguing for or against a given position, then, is perfectly reasonable. But such claims must be accompanied by the realization that the full set of beliefs held by any one community is unlikely to align perfectly with the positions taken by traditional Torah sources.

For one thing, there simply is no single set of beliefs agreed to by all rishonim. And, as I observe in my “How Are We Supposed to Pray” and “Between Frankfurt and Tzfas” chapters, Jewish practices relating to our core beliefs have undergone radical changes through the past few centuries. Or, in other words, elements of the dominant belief system of the modern Torah world is built on very modern assumptions that, in some cases, draw from dark origins.