Volume 55 Number 88
                    Produced: Tue Nov 27 21:46:40 EST 2007

Subjects Discussed In This Issue: 

Issur Kareth - reward/punishment
         [Russell J Hendel]
Shaot Zemaniyot,Alot HaShaHar, & Earliest time for Talet & Tefilin
         [Hosseinof, Joshua]


From: Russell J Hendel <rjhendel@...>
Date: Tue, 27 Nov 2007 20:19:07 -0500
Subject: Re: Issur Kareth - reward/punishment

In volume 55 there was a series of a dozen postings discussing the
following choice: (A) Introduce a non-religious Jew to a non-Jewish
woman vs (B) introduce him to a non-religious Jewish woman. One posting
(by Jay, v55n57), which did give rise to several responses, made several
blatantlly incorrect statements about Halachah, Judaism and the way we
look at the world.

I deeply admire all those who bypassed refuting Jay but nevertheless
intuitively arived at the correct conclusion: that it is preferable to
introduce the person to a non-religious Jewess. Indeed, Rabbi Joseph
Baer Soloveitchick, the Rav, has explicitly stated that "Before reaching
a legal halachic conclusion one should think of the feeling of the
decision as well as the law" (The Rav mentioned that he always pictured
his (grand)father with his deep piercing eyes and thought to himself
'Would he approve').

Jay himself cited Rabbi Kaminetsky who said that the correct approach is
to introduce the person to a non-religious Jew. But Jay cites someone
who called Jay a "Talmid Chacham" for his analysis and Jay at one point
thought that Rabbi Kaminetsky would "theoretically agree that the
non-Jewish intermarriage is technically better."  Several other rash and
incorrect statements were made which were never answered and
refuted. Finally I note that the impression is given in Jay's posting
that relations with a non-Jewess are not Biblically prohibited and "not
as serious" as relations with a Jewess. I, and I am sure others, have
certainly heard this from time to time. But there are young adults on
this list - I would feel personally responsible if someone read such a
statement and in a moment of weakness sinned. I believe the Mail-Jewish
community has an obligation to undue the damage done by such statements.
Therefore, the purpose of this posting is to carefully itemize the 3
major false statements in Jay's posting and to expose the underlying
halachic concepts by which a true Talmid Chachom, such as Rabbi
Kaminetsky, arrives at conclusions.

First: Jay makes the following explicit statement: "Karet...This word
can be translated by the English word "excision", ...our tradition tells
us that crimes punishable by karet are serious crimes, comparable in
magnitude to crimes that carry the death penalty.  On the other hand, to
...is, at the very worst, only an "'issur lav".  This term denotes a
prohibition for which no specific punishment is mentioned in the Torah,
and it is a kind of crime which can be translated freely but quite
accurately by the English word"misdemeanor".

In other words Jay distinguishes between prohibitions punishable by
death penalty or "excision" which are serious vs. ordinary prohibitions
which he classifies as "misdemeanors."

The answer to this is simple. Jewish law does "recognize" that
"excision" and "death penalty" imply seriousness. But Jewish Law has
"other categories" that equally imply seriousness. In fact one way of
measuring sins is by their expected consequences.

Here is a simple example. I look down thru my alley window and see a
woman being raped (and/or being murdered). If I dont open the window,
take a photograph and scream stop, (and call the police) I have violated
the Biblical prohibition of "Dont stand by the blood of your neighbor."
This prohibition does not have an "explicit punishment." Nevertheless
Maimonides, Murder 1:15 explicitly states "Even though there is no
punishment these sins are nevertheless [classified] as severe." Rambam
defends his analysis by introducing the idea of measuring sins by their
consequences. "Whoever lets a person die is as if he let the whole world

It should not therefore surprise us that Rambam, Forbidden relations,
12:7 when discussing the various prohibitions of relations with a
non-Jewess explicitly says (contradicting Jay) "Even though these sins
do not have death penalties they should not be classified as a
misdemeanor since they have consequences which we find in no other
prohibited relation....since the Children are no longer Jewish...and
relations with non-Jews drive people away from Judaism and cause them to
rebel against God." Here again, Rambam, uses his "seriousness criteria"-
a sin is "serious" if its consequences are severe.

Second: Jay is of the opinion that probably no Biblical prohibition may
be involved. He states "If the non-Jewish woman is not a Canaanite, and
in any event if the sexual relations are not done "lshem 'ishut" --
meaning, in a marital context-- intellectual honesty compels us to admit
(though the unlearned in the audience may be surprised to hear it) that
there is probably no Scriptural prohibition whatsoever."

Again Rambam, Forbidden Relations, 12:1 explicitly rebuffs this
position. Recall that the original question was whether "marriage to a
non-Jewess vs a Jewess is preferable" (The argument being that the laws
of family purity would not apply). So we are talking about marriage. But
the Rambam FOLLOWING THE TALMUD explicitly states "The intermarriage
prohibitions (Deut 7:3) apply with equal Biblical force to both the 7
Canaanite nations as well as to "other non-Jewish nations." The Rambam
simply and forcibly cites Nehemia 10:31 discussing intermarriages with
non-Canaanites to back up his point.

But lo and behold 12:2 answers Jay's point more bluntly. You see the
Talmudic Rabbis were aware of the Biblical loophole. And like all Good
Talmudic Rabbis they closed up the loophole. Rambam states "A permanant
relationship with a non-Jewess involves a rabbinic prohibition of family
purity." (And again to answer Jay: It is permanance which confers this
status - not marriage).

As a final point to refute I note that "classifying an act as 'only
Rabbinic' is very dangerous. There are many 'Rabbinic prohibitions' such
as drinking milk during a meat meal, wetting a rag to clean on the
sabbath (which inevitably leads to wringing it) etc. Before discussing
violating a Rabbinic prohibition we should inquire what corresponding
Biblical prohibition is being avoided. Rambam makes it clear that all
these prohibitions (both Biblical and Rabbinic) are trying to avoid
'joining the non-Jews which leads to deviation from Judaism, deviation
from the Jewish community and probably apostasy and rebellion/redicule
of the Jewish God.' This is indeed, 'how it happens.' If the Jew has no
Jewish dating circle and he 'likes the nonJewish partners he is with'
what is to prevent him from wanting to settle down to a marriage based
on respect and mutual enjoyment.  And then to defend what he has done he
from time to time redicules the people and religion from which he came.

Finally I feel compelled to refute Jays statement (regarding the female
non-Jewish partner who is having relations with the Jew) that " And the
non-Jewish woman, in any event, is completely innocent even
Rabbinically, since non-Jews have no obligation to prevent Jews from
sinning." This is simply false. Rambam makes it clear that she is liable
to a death penalty (And if she is liable to a death penalty then we have
a new answer to Jay's point #1 - this IS something serious). Rambam
points to the Moabite attack on the Jewish people (Numbers 24) which
involved planned seductions by Moabite woman. Quite bluntly Judaims
considers non-Jewesses who have relations (i.e seduce) with Jewish men
as being at war with Judaism.

I might at this point quote some "punishment statistics" of Rabbi
Hirsch: "By the Golden calf, the sin of idolatry, only 3000 Jews died
while by the Moabite seductions 24000 people died." Rav Hirsch uses the
24000 vs 3000 as a new measure of seriousness - intermarriage is more
serious than idolatry!!!! (See Forbidden Relations 12:8).

If I could summarize the above (And I can add a great deal more by
defending any of the above cited laws which have their root in the
Talmud and Jewish methodology): Jay asserted that it is preferable to
have relations/marriage with a non-Jewess then to "risk" violating the
laws of family purity with a non-religious Jewess.  However in examining
the sources we found that a) there is a death penalty involved in
non-Jewish relations b) the Rabbis imposed a family-purity prohibition
structure on the relationship (if it was permanant) and c) Jewish law
judges "seriousness" of sin not only by punishment but also by
"consequence" a sermonic point which is poignantly brought home in the
death statistics of the Golden calf vs the Moabite seduction.

I hope it is clear that I have not refuted Jay's posting merely because
it is wrong. This is not the first time I have heard advice 'do it with
a non-Jewess'---I think mail-jewish can do a world of good by discussing
the whole dating situation (frum and non-frum) as well as develop
guidelines on facilitating avoidance of sin not only on dates but in any
situation. I do hope this posting of mine elicits further discussion
along these lines.

While completing this response I noted the following relevant citation
in the Weekly Parshah sheet of the United Synagogue of the British
Commonwealth (Available online). Rabbi Shindler states

"The midieval commentator R Isaac Arama in his famous work Akaydat
Yitzchak reports an astonishing practice that seems to have been
prevalent in parts of Spain. Some Jewish communities set up and
supported brothels from communal funds to service the 'needs of
unmarried men' arguing that it was preferable to encourage men to avail
themselves of this public amenity rather than risk greater infractions
of the Torah by their having illicit sexual relations with Non-Jewesses
or other people's wives. Apparently this arrangement was common
knowledge in these towns and was tolerated by their Rabbinic leadership.

Rav Arama condemns this practice arguing that it is preferable for an
individual to be held to account for his/her private transgressions, for
which other citizens are blameless, rather than for an entire community,
or town to be held responsible for facilitating immoral behavior that is
forbidden by the Torah."

Russell Jay Hendel; Ph.d. http://www.Rashiyomi.com/


From: Hosseinof, Joshua <JHosseinof@...>
Date: Tue, 27 Nov 2007 18:11:01 -0500
Subject: re: Shaot Zemaniyot,Alot HaShaHar, & Earliest time for Talet & Tefilin

Joseph Mosseri asked a number of interesting questions regarding the
zemanim.  The first is whether or not we should use halachic hours
(Shaot Zemaniyot) for calculating the time of Alot Hashachar (Dawn -
when the first glimmers of light appear in the East, but the sun has not
yet risen).

The Gemara (Pesachim 94a) tells us that Alot Hashachar occurs at a time
equal to the distance it takes to walk 4 (or 5) "mils" (Roman Miles)
before Sunrise.  Based on conflicting explanations in the Rambam, the 4
Mils could be either 72 or 96 minutes (depending on whether a Mil takes
18 minutes or 24 minutes to walk).  With the opinion in the Gemara of 5
mils before sunrise (Rabbi Yochanan), those 5 Mils could be either 90 or
120 minutes.  My understanding is that the generally accepted opinion
for Sephardim is 72 minutes and for Ashkenazim some accept 72 minutes
while others accept 90 mintues (4 x 18 or 5 x 18).

So then the next question is, are those minutes fixed minutes as we see
on our watches, or are they proportional minutes based on the halachic
hour.  On the one hand, almost all the zemanim that we calculate are
based on the halachic hours (longer in summer, shorter in winter, and an
hour is approximately equal to 60 minutes by the equinoxes).  One view
is therefore that all the halachic zemanim are only equal to fixed
minutes in Bavel during Nisan and Tishrei, but during other times of the
year and in other parts of the world, these times need to be adjusted.
But on the other hand, the Gemara told us this particular time
measurement based on the time it takes to walk a certain distance, and
since we don't walk faster or slower based on the season, one would
think that this particular time period is therefore based on fixed
minutes. That is in regards to Alot Hashachar.

In regards to the earliest time to put on Talit and Tefillin, so first
of all there is in theory a different standard for the earliest time to
put on the Talit versus the earliest time to put on Tefillin.  The
standard for the earliest time to put on the talit with a beracha is
"Misheyakir beyn tekhelet lelavan" - the time of day at which you could
distinguish between the color Tekhelet and white on the tzitzit.  The
standard for tefillin is the time at which you could recognize a friend
at distance of 4 Amot (6 1/2 feet away).  In practice however, both
standards are equated to the same time.  There are a number of different
opinions as to when "Misheyakir" is, some say 66 minutes before sunrise,
some say 60 minutes, others say 54 minutes.  And again the same debate
applies here as to whether to use fixed minutes or halachic minutes.
The OU Website Zemanim calculator appears to use a fixed 54 minutes for
their calculation of "misheyakir".  Rav Ovadia Yosef, for example, says
66 halachic minutes when absolutely necessary, but prefers 60 halachic
minutes, but in all cases he insists on halachic minutes even for the
Alot Haschachar calculation..

This question is usually an issue around the time of Hoshanna Rabbah
(very long tefillah but some people need to work that day), and this
year it also became an issue due to the extra week in October before we
changed the clocks as sunrise got later and later.  The other question
to ask regarding the Zemanim is what part of the Tefillah can you say at
"Alot Hashachar" and what parts of the tefillah do you need to wait for
"MiSheyakir" (when presumably you would be wearing Talit and Tefillin).
The least problematic part of the tefillah is Birkot hashachar and
Korbanot, which it seems quite clear you could say from Alot Hashachar.
Birkot Hashachar could even be said as soon as you wake up, even before
Alot Hashachar.  Then things start to get complicated - especially if
you follow the Magen Avraham's opinion of calculating the zeman Kriat
Shema from Alot Hashachar.  There is a strong argument to be made that
you cannot say the berachot of Kriat Shema (or Kriat Shema itself)
before the time of "misheyakir" because "misheyakir" is the earliest
time at which you can put on Talit/Tefillin and we know that it is a
requirement to wear Talit/Tefillin for Keriat Shema of Shacharit.
Baruch Sheamar and Yishtabach seem to fall in a gray zone - I remember
seeing a Rashi on a gemara that indicated that Baruch Sheamar and
Yishtabach could be said even before Alot Hashachar - though I don't
have the citation in front of me at the moment.  And there is nothing
intrinsic about Pesukei Dezimrah that imply that they have to be said
while wearing Talit/Tefilin.  The issue however is whether or not you
can say the berachah on Talit and Tefillin after Yishtabach or is that
considered an interruption.

As you can see there are a lot of different options for calculating
these zemanim which could lead to extremely different answers to the
questions of the earliest time to put on Talit and Tefillin., so as
always with Mail-Jewish answers you should consult with your own Rabbi.

Josh Hosseinof


End of Volume 55 Issue 88