Volume 12 Number 67
                       Produced: Wed Apr 20  9:09:17 1994

Subjects Discussed In This Issue: 

Are Jewish mommies exempt from davening?
         [Maidi Katz]
Dina Demalchuta Dina (DDD) - The law of the land is law
         [Eli Turkel]
The Mitzvah of Living in Eretz Yisrael
         [R. Shaya Karlinsky]


From: Maidi Katz <Katz+atwain%DEBEVOISE_&<_PLIMPTON@...>
Date: Mon, 18 Apr 94 14:13 EST
Subject: Are Jewish mommies exempt from davening?

Responding to Constance Stillinger's inquiry as to how to sneak in
davening around the demands of children, David Charlap wrote that
"they [women] are exempt from most of the davening, so they don't
have to make time."  Whoa....

It may be true, as a sociological and cultural matter that the
Orthodox Jewish community does not have the same expectations vis
a vis women as men with respect to davening.  And as a practical
matter the fact is that far fewer girls/women than boys/men daven
regularly.  However, let's not confuse this with the halakhic
issues involved.

As far as I know it is pretty well settled that women's daily
obligation to pray, when all is said and done, ends up being
pretty close to men's (with the exception of ma'ariv).  See
Brachot 20b with Rashi and Tosafot; Shulchan Arukh, Orah Hayyim
106:1 (with Magen Avraham and Mishnah Brura); Arukh HaShulchan,
Orah Hayyim, 106:5-7.  The Mishnah clearly states that women are
obligated in "tefillah" (unclear whether this is referring to
shmoneh esrei as the term is generally used in the Talmud or to
some broader category of prayer), but exempt from reading the
Shma.  What exactly the obligation of tefillah entails turns on
whether the basic obligation is d'oraita (from the Torah) or
d'rabban (rabbinic), one's girsa (translation?) in the gemara and
one's concomitant reading/understanding of that gemara.  

The upshot is that minimally (following Maimonides' and Rif's
approach to its logical conclusion) women are obligated to pray a
minimum of once a day and a maximum of twice a day (following
Rashi and Ramban to their logical conclusions).  [Ma'ariv was
initially optional everyone, but men have since accepted it upon
themselves--kiblu allayhu.]  Even though women are exempt from
Shma, it is "recommended" that they say it, because it involves
accepting the yoke of heaven. (See Mishnah Brura). Saying shmoneh
esrei drags along with it the brachot following shma, as well,
because of s'michat geulah l'tefilla (having the bracha of
redemption immediately adjacent to shmoneh esrei).  As far as I
know there isn't really a greater obligation on men to say p'sukei
d'zimra than on women--it's just kind of a warm-up for tefillah
(which halakhically is shemoneh esrei) and all the other stuff we
say is basically "filler" too.  Nor as I understand it do men have
a mitzvah hiyyuvit (positive obligation) to daven b'zibbur (with a
quorum), although every effort should be made to do so. [I'm not
getting into Torah reading issues here].

The only way out of all this (we're basically up to a full
davening at least once and by many opinions twice a day) is by
relying on the Magen Avraham, who, in an attempt to explain why
"the custom of the majority of women is not to pray," says that
since according to Maimonides the obligation of prayer is d'oraita
without any fixed time or form, women can fulfill their obligation
by saying a few words of shevach (praise), bakasha (request) and
hoda'ah (thanksgiving) in the morning. [Shevach, bakasha and
hoda'ah are the three essential components of prayer. Our shmoneh
esrei is therefore structured accordingly.]  In order to use this
rationale, the Magen Avraham has to assume that when the rabbis
transformed the timeless/formless prayer obligation into a
time-bound/pre-drafted one, they imposed no additional obligation
on women.  In any event, it is clear from the Magen Avraham's
language, that his statement was meant to be a justification of
the prevailing custom, rather than a p'sak (ruling) for a
l'chatchila (ab initio) situation.

So that brings us full circle to the sociological/cultural aspect
of this whole deal.  It is true that even very observant women
often tend not to daven, as noted by the Magen Avraham. Can we say
that this "custom" has somehow transformed the obligation out of
existence?  I'm not sure that (a) this really qualifies as
"minhag" (custom) and (b) even if it does, that minhag can be used
to wipe out a positive obligation (even if rabbinic).  Is that how
"minhag mevatel halakha" (a minhag can wipe out a halakha) is
used? Moreover, it's one thing to use the Magen Avraham as a
post-facto justification; quite another as a l'chatchila ruling.

Of course, the issue raised is a good one.  The fact of the matter
is that it is nearly impossible to daven with little kids around. 
So does that mean that it's ok to rely on the Magen Avraham or
does that mean that possibly our community should think harder
about what it encourages and discourages--and encourage men to be
better about dividing responsibilities in such a way that women
can daven too.  And just as an aside--I have observed that when
kids think its ok to bother mommy while she's davening, but not
daddy--it's largely due to messages and vibes sent out by the
parents themselves.


From: <turkel@...> (Eli Turkel)
Date: Mon, 18 Apr 94 14:04:26 +0300
Subject: Dina Demalchuta Dina (DDD) - The law of the land is law

     Several people pointed out that DDD applies only to monetary laws
and so would not apply to drug abuse. I find this hard to accept.
There are many laws whose purpose is to increase the good to the general
community. These laws certainly do not violate any halachic principal and
in many cases would be approved by halacha but are not in "Shulchan Arukh".
I would assume that these are subsumes under DDD. Some examples:

1. Traffic Laws.

     I once heard a story of someone who was driving Rav Lichtenstein through
     the Sinai desert many years ago) and Rav Lichtenstein insisted that he
     drive at the legal speed even though the nearest police was many miles 
     away. Though halacha would condemn "excess speeding" there is no 
     objective way of defining this except by what is given (often arbitrarily)
     by the local law. 
     Similarly, is one permitted to jay walk according to halacha especially
     when there is no traffic on the road?

2. Health Regulations.

     Occasionally certain products are forbidden in certain regions because
     they might spread disease (i.e. one cannot bring in produce from the
     mainland to Hawaii without explicit permissions). There are all sorts
     of regulations on the health conditions of restaurants, slaughter houses,
     etc. Is one required to keep these regulations even when one might not
     be required by strict halacha. This of great relevance because of the
     constant stories of "galtt kosher" establishments that have been found
     to have violated the health regulations. It seems that mashgichim do
     not check the condition of bugs on the floor.

3. Drug abuse.

     Is spite of the responsa of Rav Feinstein it still begs the issue.
     Though Rav Feinstein  demonstrates that narcotics are forbidden by
     halacha the question remains of what is considered a "dangerous drug".
     Every country has a detailed list of drugs that are forbidden and
     those that require a medical prescription. For example, codein requires
     a prescription in the US but not in Israel. According to Rav Feinstein
     would the prohibition of using drugs apply to the list of the US or
     could one ask ones personal physician and then smuggle in an illegal
     drug that the doctor thought was not dangerous.

4. Monetary laws

     Even within monetary laws many of these laws exist for the benefit of
     society rather than for tax revenues by the state. Is one required to
     keep these? One simple example is patent and copyright law. While
     come poskim claim that copyright law is protected by halacha this is
     not universally accepted. Again American law has many details as to
     exactly what can be patented and for how long and there is no counterpart
     to this in halacha. Thus, i doubt that any posek has considered whether
     computer software (e.g. look and feel) is subject to patent protection, 
     which is a major controversy in the US (e.g. the Lotus court suit).
     Would one's halachic duties be determined by this court case?

        I stress that in all these case the local law is not contradicting
     anything in halacha but adding new laws that did not previously exist.
     Everyone agrees that a local law against halacha is not to be obeyed.
     This of great relevance in the present controversy over the ruling of
     Rav Goren, Rav Shapira, Rav Israeli and others that one is not allowed
     to forcibly remove settlers from any part of Israel. There are rabbis
     on both sides of the argument whether this truly is halacha. However,
     I think that all rabbis would agree that "if" it were halacha then it 
     would have to be obeyed despite any rulings of the knessset.



From: R. Shaya Karlinsky <msbillk@...>
Date: Tue, 19 Apr 1994 23:49:23 +0300 (WET)
Subject: The Mitzvah of Living in Eretz Yisrael

     Ari Kurtz <s1553072@...> wrote in MJ V.12 #66
on the "Ramban's views on Eretz Yisroel."  After re-reading the post a
couple of times, I began to suspect that the author was writing tongue-
in-cheek.  But in today's confused times, I can never be sure.
Especially since the author appears to have misinterpreted a couple of
sections of the Ramban (especially Vayikra 25:24).  I will relate to it
seriously, though, since it gives me an opportunity to write some things
that have been on my mind for a long time.  First to the specific
details raised in the post.
     The Ramban in his commentary on the Rambam's Sefer HaMitzvot,
Positive commandment No. 4 counts the settling of Eretz Yisrael as one
of the 613 positive commandments, not allowing us to leave it in the
hands of other nations nor leave it desolate.  There is some very
pointed language on the topic.  The fact that too few Yeshiva students
or graduates know this Ramban (as well as the commentators that question
it and validate it) is something that will require an accounting at some
future time.  This cited source is the Halachic rendering of his
interpretation (arguing on Rashi) of Bamidbar 33:53.
     Ari writes:
>The Ramban continues on this that also anyone who resides outside of
>Israel is considered rebelious to Haashem (Ber 28,17).
     I believe that Ari has misinterpreted this. Nowhere in that section
does the Ramban say that one who resides outside Eretz Yisrael is
rebellious to Hashem (although Chazal in Ketubot 110b say something
similar).  The Ramban is quoting a Mishna in Ketubot.  While a woman may
refuse to join her husband in moving to a less convenient place than
where they had originally lived, and demand a divorce with full rights
if he insists on moving, one who refuses to join her husband in moving
to Eretz Yisrael is judged as a rebellious wife, and she loses her
rights in a divorce.  There is no sex discrimination here: A husband
cannot refuse his wife's demand to move to Eretz Yisrael.
     While the Rambam (Maimonedies) does not COUNT living in Israel as
one of the 613 Mitzvot, the Chazon Ish (Igrot, #175) writes matter-of-
factly that the Rambam CONSIDERS it to be a Mitzvah.  The sources to see
are Ch. 5 Hilchot Melachim, Hal. 9-12; Ch. 6 Hilchot Shabbat Hal. 11.
The signature on some of the Rambam's letters (akin to our e-mail
signatures) may also have indicated his opinion of his being in
violation of this Halacha by not living in Eretz Yisrael.
     Ari also writes:
>Another point the Ramban makes is that one is only obligated to
>perform the mitzvot in Eretz Yisroel and Mitvot outside of Israel is
>just for pratice. (With this you'd expect all those who love to be
>machmer would jump on a plane to Israel the first chance they had)
>And on what does the ramban base all this on ?
     The Ramban (Vayikra 18:25) quotes a Sifrei (Devarim 11:17) that
says that "even though I am exiling you from the Land of Israel to the
diaspora, be "metzuyanim" [noteable] in the commandments, so that when
you return to Israel they will not be new to you."  The Ramban explains
that even the Mitzvot that are independent of the land (Tefillin,
Mezuzah, etc.) are done only 'to keep in shape', because "The "ikar"
[root] of all the Mitzvot are for those dwelling in the land of G-d
(Eretz Yisrael)."
     For further elaboration, an important early Hashkafa source is the
Kuzari Section 2, paragraphs 20-24.
     By this time, I sense a few of our Chutz L'Aretz readers squirming
at their terminals.  "If it was REALLY a Mitzvah that we HAVE to do, how
come there were so many Gedolim and great people that never came.  How
come the Gedolim aren't telling us now that we have to do it."  I am not
sure how valid that response is for a number of reasons.  The Gedolim
may be following a principle that one doesn't publicly declare things
that the community will not or is not able to listen to.  There are many
things the Gedolim say that most people DON'T listen to (cutting down on
lavish weddings, cutting out super-expensive wigs and clothing,
rectifying the low wages of our Jewish educators, being more honest in
our business dealings...).  How come everyone is so meticulously
"listening" to their silence on Eretz Yisrael. And has been discussed on
this list on numerous occasions (some of them quite heated) if a Gadol
says something that doesn't make sense or seems to go against the
sources, we want to question him about it and receive a logical and
consistent explanation.
     Unfortunately, I fear that most Torah Jews today are more
knowledgeable about the Mitzvah of Chalov Yisrael than they are about
the one of Yishuv Eretz Yisrael.  The sugya [topic] is not well studied,
yet it is a serious Halachic issue.  A cursory reading of original
sources in Chazal and Rishonim would show how serious.
     For those interested in the "bottom line" - the source for the
practical psak - I suggest seeing Shulchan Aruch Even HaEzer 75:20, with
the Pitchei Tshuva (note 6) and the sources he brings.  At least know
the heter that is being used for not coming.  And see if it is REALLY
applicable to your situation.  And whether you can't change that.
     So much for the Halachic issues.  The question that has been on my
mind for the last 6 months, if not for the last 7 years (the beginning
of the intifada) and which seems from Chazal to have powerful bearing on
current events: Who has a stronger, more intense desire today for Eretz
Yisrael - Bnei Yisrael (the Jews) or Bnei Yishmael (the descendants of
     The new State of Israel was surgically carved in 1948 to leave out
the three cities the Tanach tells us specifically were purchased by our
ancestors (Hebron, Shchem, and Jerusalem).  In 1967 those and additional
significant portions of Eretz Yisrael were given to us with overt
miracles.  How did Klal Yisrael respond?  How many Jews came from the
diaspora to fill all that new territory?  How many came willingly?  How
did the miracles affect belief in G-d?
     Can there be a greater Chilul HaShem than the present situation?
We have seen G-d fulfill prophecies that looked impossible two or three
hundred years ago and unlikely twenty years ago.  The land of Israel
being rebuilt, Jews being gathered in from the four corners of exile.
Barriers crumbling.  Assimilated Jews returning to Torah.  It is the
first time in over 1900 years that nearly every Jew in the world who
wants to can come to Eretz Yisrael.  Yet we continue our lives as if
nothing happened.  Jews can get on a plane to come to the land our great
grandfathers dreamed about, yearned for, cried about.  And we don't.
Every Jew has the "right of return," yet it is the Arabs who are
fighting and willing to die to give their bretheren the "right of
return," with hundreds of thousands of Palestinians waiting to pour into
Eretz Yisrael that doesn't seem very important to the Jews.
     Can there be a greater Chilul HaShem than the blasphemy coming
daily from the elected leaders of the Jewish State?  Is that alone not
enough to require a hundred thousand Torah Jews to liquidate their
businesses, sell their homes, and come to Eretz Yisrael to change that
situation.  Or at least walk around thinking about how to do it.  How
much sacrifice will it really require?  As much sacrifice as it took our
parents or grandparents to keep Shabbos and Kashrut in the US in the
beginning of the century?  Given the economic realities, I think it
would take less sacrifice.  The question is whether we consider it worth
     In the interest of keeping this post to a length that won't have
Avi banish it to the archives or gopher, I will end here. I still hope
to post some sources from Chazal and a discussion that will give us food
for thought on the present situation.  It is at least as important as
"glatt pots."

Shaya Karlinsky <msbillk@...>
Darche Noam/ Shapell's
PO Box 35209                  Jerusalem, ISRAEL
tel: 9722-511178              fax: 9722-520801


End of Volume 12 Issue 67