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Halachic Perspective, or Why the Rabbinic Establishment Tends to Rule Certain Ways

March 8, 2014

I wrote this about accepting the Sabbath before nightfall and how in the olden days such was certainly the practice. I feel vindicated that this past week, our town lost power shortly before the Sabbath began, so the local synagogue held Sabbath evening services early this time.

Some students get to a point in their studies where they realize that often the halachic practice does not fit with the received Torah she’bal peh. If they go further, they might even be stymied by teachers who demand that they fully accept the stutus quo despite its lack of coherence. Indeed, after more than a decade involved with yeshivas I can say quite confidently that our institutuitons of education as a whole reject students and faculty alike who show a tendency to think creatively, critically, and classically. And the Jewish community suffers because of it.

Last week, I intended to head up the local mountain to catch a glimpse of the new moon and recite the blessing thereon (see here), but the weather was not permitting. Some years ago, a friend who accompanied me pointed out that those who try to spot the moon as per the Mishna are few and far between, because mainstream Rabbis are charged with maintaining the status quo, even if it means going against the letter of halacha. That is why your local, Orthodox rabbi will never attempt to say the blessing on the new moon or many other commandments that are not “what is done.” It takes a special person, some one who is not afraid to display the courage of his conviction. However, there are two important sources for this modern-day rabbinic stubbornness. Both are in essence hashkafic, but because of their locations in halachi lore, they are given very great halachic weight and inform the mindsets of rabbis and rabbis-in-training.

Exhibit A is the very first folio of the Talmud, Berachoth 2a. There, the Mishna states that the time for the evening Shema is when the priests who had immersed in the miqweh can commence to eat their Teruma, which as the Gemara reveals later, is nightfall, or “when the stars come out”, sometime after sunset. (Maimonides says that it takes about eighteen minutes after sunset for the stars to come out.) Now, Rashi and the Tosafists discuss the corresponding passage in the Yerusahlmi, which mentions that the practice was apparently then, as it is now, to read the shema before that time, when the congregation was in the midst of the evening service, which was sometime late in the afternoon. The evening amida’s proper time is not the same as that of the shema, although together they form what we know as “maariv”. The evening amida may be recited as early as “plag haminha”, one and a half seasonal hours before the sunset, and perhaps it is even preferrable on some days to hold evening services earlier. The approach of the ashkenazic/tosafist tradition is to justify the standard practice of reading the shema and its blessing before the time specified in the mishna. Thus, we have the phenomenon of “early shabbos minyanim” whereby the congreagtion reads the entire shema and its blessings even before sunset, as part of the evening service, and then repeating the shema later that evening without its blessings.

However, according to the Maimonidean/Vilna Gaon theory of halachic decsion making, the Yerushalmi was not saying that the shema was read with its blessings before their early evening services. Rather, they were just  reading the actual shema as a form of preparation for prayer, and they would actually then read the entire shema with its blessings only after nightfall. Thus, and this is an opinion mentioned by, for example, the Mishna Berura, when an individual or a concongregation choose to hold eveing services anytime before night fall, shema is not to be recited with its blessings at that time.

The first approach seeks to fit the receeived text, the record of the oral law, into the standard practice; the second approach seeks to fit the practice into the received text, all the while risking doing that “which is not done.” Today’s Israelis can not appreciate how much practices related to the prayers have been altered by the teachings of the Vilna Gaon from the old ashkenazic custom as it was. It is is even harder to grasp how when he was still alive, his personal practices were limited to the tiny minyan he would attend.

Nowadays, those who would rule as per the style of the Vilna Gaon or Maimonides are branded as trouble makers, despite the fact that it seems that this approach is certainly closer to the one espoused by Haazal. Most rabbis opt to rule in a manner that makes less waves, if any. I beleive that this is often the result of misplaced humility, but that is for a different blog post.


Exhibit B is one of Rabbi Yuter’s favorite examples. The Mishna says (Zevahim 3:1, Soncino ed.) concerning the slaughter of sacrifices in the Temple:


That is, although only the priests may catch the sacirifce’s blood and perform the subsequent parts of the service, non-priests may perform the initial slaughter, and Maimonides rules accordingly (Shehita 4:4):

When one knows the laws of ritual slaughter and slaughters in the presence of a wise man until he becomes familiar with ritual slaughter, he is called an expert. Any expert may slaughter in private as an initial and preferred option. Even women and [Canaanite] servants may slaughter as an initial and preferred option.

This is on the assumption that the laws of slaughter in the Temple are identical with the laws of slaughter with regards to secular meat (hullin).

Thus the first halacha in Yoreh Deah (1:1):

All are [qualified] slaughterers before the fact (“l’hat’hila”), even women. Gloss: Some say that women should not be allowed to slaughter, as they have already practiced (nahagu) that they do not slaughter, and indeed the custom (minhag) is that women do not slaughter. 

The B’e Hagolah identifes the opinion brought by the Rema as that of the Agur.

Shach, ad loc.:

…In my Humble opinion, the Agur’s opinion follows what the Maharik wrote in Principle 172, [namely] that with regards to [matters of] custom and the like “we have not seen” is a proof

That is, the Sages assumed that women could ritually slsughter animals (even in the Temple), yet later authorities prohibitted such actions because it had not been done. “We never saw a woman slaughter a cow before; that must be a proof that such a thing is at least before the fact prohibited,” or as the Shach put’s it, “we have not seen” is a proof. You can probably undertsand why Hazal, Maimonides, and the Beth Yosef would not subscribe to such a principle: it provides a mechanism for prohibitting any positive commandment of the Torah that is neglected for a long enough time. If  a community were to not wear tzitzith for two generations, and some pious individual were to attempt to be the first in his country to wear a tallith in one hundred years, the local Rabbis could prevent him, claiming “we have never seen someone wear tzitzith; we may thus conclude that such should not be done.” Or, “we have never seen someone build a temple, or settle the land of Israel, or wear techeleth, or serve in the Temple, or keep shemitta, or (commandment that is not en vogue); we may thus conclude that such should not be done.”

It is a fact that many adopt that principle, and, despite the fact that it seems unjustified, apply it to all sorts of cases.


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