Volume 57 Number 92 
      Produced: Wed, 10 Mar 2010 21:55:32 EST

Subjects Discussed In This Issue:

authority of the Shulchan Aruch 
    [Jacob Sasson]
electronic locks 
    [Rabbi Meir Wise]
hair/modesty (4)
    [Janice Gelb  Hillel (Sabba) Markowitz  Janice Gelb  Alex Heppenheimer]
halakhic relativism (2)
    [Martin Stern  Chana]
Israel's declaration of independence 
    [David Maslow]
saying a beracha on every mitzva (2)
    [Michael Kahn  Avraham Etzion]
    [Menashe Elyashiv]


From: Jacob Sasson <jsasson@...>
Date: Tue, Mar 9,2010 at 02:01 AM
Subject: authority of the Shulchan Aruch

In v57#91, Eitan Fiorino wrote:

Secondly, there are communities which never 
> accepted the binding authority of the shulchan aruch, for example the
> Yemenites, who follow the Rambam.  

This is not entirely accurate.  See "Caro's Shulhan Arukh Versus Maimonides'
Mishne Torah in Yemen" by Yosef Tobi in The Jewish Law Annual, Vol. XV where he
describes how the Shulhan Arukh gained in prominence over the past few centuries.



From: Rabbi Meir Wise <Meirhwise@...>
Date: Sun, Mar 7,2010 at 03:01 AM
Subject: electronic locks

Bernard Raab's V57#90 argument about electronic locks is very subtle. When  
murder was forbidden guns were not invented therefore murder with guns  
must be permitted!

And why is he so dismissive of the Amish? I don't know much about them  
but they seem like harmless Godfearing folk?

With best wishes
Rabbi Meir Wise


From: Janice Gelb <j_gelb@...>
Date: Thu, Feb 25,2010 at 11:01 PM
Subject: hair/modesty

Carl Singer wrote:
> Placing in context (in the U.S. at least, perhaps in other locales) what
> happened 50 (actually closer to 60 / 70 years ago for historical context) there
> were to major changes / the influx of "new" Jews to the U.S. -- those who like
> myself came in the late 1940s post the churban in Europe and those whose coming
> might be attributed to events surrounding the 1956 Hungarian revolution.
> Communities changed -
> halacha didn't change (in one sense the halacha is
> immutable) but accepted
> interpretations and resultant behaviors changed
> [snip]
> What other artifacts of behavior have similarly changed
> over time? (I'm preparing a list)

A friend of mine's mother had a father who was a 
butcher in New York and claims that the community 
standards for kashrut become much more strict 
after this influx in the late 1940s - early 1950s.

-- Janice

From: Hillel (Sabba) Markowitz <sabbahillel@...>
Date: Wed, Mar 3,2010 at 06:01 AM
Subject: hair/modesty

N. Yaakov Ziskind wrote:
> I'll add my own reason: NYSDMV will make you take off a kercheif, etc.
> when taking one's driver's license photo. Not so with a wig (probably
> because they don't know it's there).

My wife had to renew her passport just before Purim. A picture with a
hat or other head covering is invalid according to the State
Department. A wig was acceptable (probably for the reason that you
   Sabba   -         -   Hillel
Hillel (Sabba) Markowitz | Said the fox to the fish, "Join me ashore"
<SabbaHillel@...> | The fish are the Jews, Torah is our water

From: Janice Gelb <j_gelb@...>
Date: Fri, Mar 5,2010 at 12:01 AM
Subject: hair/modesty

In M-J V57#86, David Tzohar wrote:
> The gemarra says "seiar b'isha erva" (A woman's hair
> is lascivious). 
> Only a married woman must cover her hair because
> relations with a married woman are arayot (illicit 
> sexual relations punishable by death) and are 
> therefore much more serious than relations with 
> an unmarried woman which is only the misdemeanor 
> of znut (promiscuity).

I have always found it a source of irony that 
a married woman's hair is considered erotic so 
only her husband should see it, but most married 
women who wear sheitlach end up keeping their 
hair short so the wigs will fit better and be more 
comfortable. The result is that a woman (and 
her "hair") often looks more attractive when 
wearing the sheitl for outsiders than she does  
at home for her husband without it!

-- Janice

From: Alex Heppenheimer <aheppenh@...>
Date: Fri, Mar 5,2010 at 02:01 PM
Subject: hair/modesty

Leah S. R. Gordon wrote:
>When I read this, the obvious question is the same one Golda Meir asked
>regarding a curfew on women to avoid rape: why are we
>restricting the women when we should be restricting the men?

I am sure this was inadvertent, but you do realize that you've just compared a
man who has a (perhaps unconscious) reaction -to a rapist?

>First, let's ignore the significant question of whether hair is lascivious
>(!) by its very nature - and by the way, my impression is that the style,
>i.e. tied up in a bun vs. flowing and bedroom-y, makes a difference.

That's conceivable; the verses that the Gemara cites in this connection (Song of
Songs 4:1, in Berachos 24a; Num. 5:18, in Kesubos 72a) both do seem to refer to
flowing hair ("like goats streaming down Mount Gilead," "the Kohen shall unbind
the woman's hair"). It would certainly be interesting to see whether any of the
classical sources understand the Gemara in this way.

(Although there still is the consideration of "Das Yehudis," the widespread
custom of Jewish women, which a married woman is expected to keep as well. As
codified in Shulchan Aruch, Even Ha'Ezer 115:4, this means full coverage of the
hair, whereas Das Moshe (the basic Torah law) requires only a partial covering.
So even supposing that we explain Das Moshe to mean that tying one's hair in a
bun is sufficient, Das Yehudis would forbid that. It may have started as a
custom, then, but it's attained the status of black-letter law, exactly like the
stringencies which Jewish women originated in regards to the niddah laws
(Rambam, Laws of Forbidden Relations 12:4; Shulchan Aruch, Yoreh De'ah 183:1).)

>I think it is a perfectly good question to ask: shouldn't the onus be
>on the man to avoid being aroused by someone he shouldn't be sleeping
>with? I find irritating this idea that 'because xyz sin is really bad
>for me, you should change your whole lifestyle around to avoid tempting
>me'. Eating treif is pretty bad, but I don't see a halakha that says
>your Christian neighbor can't have a great-smelling barbecue. Oh, that
>is because "we" have control over women [with the exception of the
>angry feminist minority on M.J ;) ]

There have been times in Jewish history when we ruled over the local non-Jews,
and there are indeed some halachos of things that we may and may not allow them
to do (see, for example,Rambam, Laws of Kings chs. 9-10; Lev. 25:53). Yet no one
has ever suggested banning their non-kosher barbecues. So clearly there's got to
be more to it than control.

The key issue here, I think, is that you're assuming that the effects of seeing
"ervah" are something avoidable, and that it ought therefore to be the man's
responsibility to do so. But in fact, as well described by Rabbi Manis Friedman
(in his Doesn't Anyone Blush Anymore (Harper-Collins, 1990)), there is a more
important problem of involuntary effects. The idea behind the tznius [modesty
--MOD] regulations, he says,is to prevent a person from being desensitized
-something that is far more important in connection with intimacy than as
regards food or other sensory pleasures. It is true that the average man, seeing
a woman's hair, is not going to jump from that to propositioning her; he ought
to be able to control his bodily reactions too. But the mental desensitization
is not so easily preventable or overcome, and that in turn reduces to some
degree the intimate bond between husband and wife. (When one sees bareheaded
women every day, is it going to occur to
him, like to the lover in Song of Songs, to sing of his beloved's tresses?
Perhaps indeed this is why the Gemara cites this verse.)

Given this understanding, then, we need to find the least intrusive way of
addressing the issue. "A woman's hair is ervah" means that, objectively, it has
an (a) involuntary effect on (b) the average man in (c) the normal course of his
day [and in that regard it's completely unlike the curfew proposal you
mentioned, where the concern is about the (a) voluntary choice of (b) a small
number of men to (c) go out of their way to commit a crime.] The possible ways
of preventing this, then,are: (1) segregating the sexes entirely, (2) forcing
the men to go about their daily business with their eyes closed or wearing
blinders,or (3) having the women cover their hair.So you tell me: which of these
is it most fair, or reasonable,to require?

>> This is also connected with the ceremony of Sotah
>> where a married woman must publicly uncover her hair
>> as a sign of her immodestbehavior.

>IIRC, the Sotah is innocent until proven guilty! And furthermore,
>doesn't the commentary imply that she was never found guilty by this
>trial by ordeal in actual fact? Hence...what "immodest behavior"?

Remember that for a woman to become a Sotah, her husband has to have previously
formally warned her not to go into seclusion with a certain man, and she has to
have done so anyway in the presence of witnesses (just they didn't see whether
any sexual activity actually occurred). In fact, once this occurs she is
forbidden to be intimate with her husband, and indeed if for whatever reason she
doesn't go through with the ordeal (including, of course, nowadays when we have
no Temple), they have to divorce (Rambam, Laws of Sotah 1:2 passim; Shulchan
Aruch, Even Ha'Ezer 178:7 in Hagah).

So yes, that seclusion itself is immodest behavior (and she has been already
proved guilty of it by the witnesses), and the consequences include having to
suffer the embarrassment of having her hair uncovered in public. [The Midrash,
Bamidbar Rabbah 9:13, makes the connection explicit: "The Kohen therefore
uncovers her head, telling her, 'You left the way of Jewish women (whose
practice is to keep their hair covered) and chose the way of the gentiles (who
go about with uncovered hair); now you have your wish.'" We also see from here,
incidentally, that a woman's keeping her hair covered is one of the many symbols
of her dignity as a Jew, and that having it uncovered represents a loss of that
dignity rather than a gain of freedom.]

Whether she actually dies from drinking the bitter waters is something else
altogether: that indeed depends on whether she actually had sexual relations
with this man. (There is at least one recorded case of a woman who did so and
died after the ordeal (Tanchuma Naso 6:6), so it is incorrect to say that "she
was never found guilty... in actual fact.") But again, that has nothing to do
with what's done up to that point in the ordeal (including the uncovering of her

Kol tuv,


From: Martin Stern <md.stern@...>
Date: Tue, Mar 9,2010 at 03:01 AM
Subject: halakhic relativism

Ira L. Jacobson wrote:
> The prohibition in the Torah is not against killing.  Lo tirtzah
> means "thou shalt not MURDER," not "thou shalt not kill."

Of course, Ira is correct that the word for to kill would be tiktal not
tirtsach but there is an interesting difference in the punctuation of the
phrase "lo tirtzach" between the ta'am tachton (the way it is read
privately) and the ta'am elyon (the way it is read as part of Kriat
Hatorah). In the former the two words are joined by a mercha whereas in the
latter they are separated by a tippecha which would seem to suggest the
meaning "Do not [do this under normal conditions but, under certain
circumstances] you shall murder" which interpretation is mentioned in the
Zohar as a hint to din rodeif [the rule that one is obliged to kill someone
who is trying to kill someone else before he can do so].

Perhaps the fact that this hint is only conveyed in the ta'am elyon [Higher
or Divine understanding] is to teach us not to take the law into our own
hands on our own ta'am tachton [lower understanding].

Martin Stern

From: Chana <Chana@...>
Date: Tue, Mar 9,2010 at 05:01 AM
Subject: halakhic relativism

David Tzohar <davidtzohar@...> writes: 
> There are relatively few instances where halacha has been changed
> significantly because of changes in the social or cultural climate. A
> few examples:

I see that R' EMT has responded on the various examples that were brought in
this post, demonstrating that these are not cases of change in the social or
cultural climate.  But what has been left out of this discussion is the very
particular halacha which set this whole thing off.  The concept of Das
Yehudis.  Das Yehudis is a category of halacha that is, inter alia, set out
in the Mishna in Kesubos 72a.  That Mishna talks about two categories of
halacha, Das Moshe, and Das Yehudis.  Das Moshe would seem to be understood
by the majority of commentators to be referring to a group of Torah
prohibitions (the Rambam may have a different concept, as he includes a
number of what is accepted to be rabbinic prohibitions into his list of
examples of Das Moshe).  Das Yehudis, however, it defined by Rashi there on
this gemora to be "shenohagu benos Yisrael af al pi shelo kasiva" - ie that
which the daughters of Israel are accustomed to do even though it is not

That is, we are discussing here the practices that Jewish women are
accustomed to do, and these have the force of halacha (generally understood
by the commentators to have the force of a rabbinic prohibition).  It is
from this concept of Das Yehudis that many commentators understand that if
the practice of Jewish women in a certain locality is to - eg cover their
ankles, ankle covering is required by force of rabbinic prohibition.

That is, we are discussing a particular class of halacha, that fits under
the description of Das Yehudis, and that only, which is in its very essence
defined to be determined by the social and cultural climate.  Not so
surprising therefore, if the social or cultural climate changes, then so do
the norms of Das Yehudis.  It is built into the very nature of this very
particular form of halacha.

The issue that started this whole thing off was hair covering.  The reason
that somebody might well think that hair covering falls within this very
specific category of Das Yehudis, which is one that can be argued structured
in halacha from the beginning to be determined by social and cultural
climate, is because that same Mishna in Ketubos on 72a - says that hair
covering is Das Yehudis.  That is, the Mishna there lists a whole bunch of
things that are Das Moshe, and a whole bunch of things that are Das Yehudis,
and includes hair covering in Das Yehudis.

So why doesn't everybody agree with Rabbi Broyde that hair covering is
dependent upon social and cultural climate?  Well the reason is that the
gemora on this Mishna, on 72b queries the Mishna specifically on hair
covering.  Not on the concept of Das Yehudis in general, but on whether hair
covering should fit within this concept.  It asks there - is not hair
covering Das Moshe (ie a Torah prohibition)? [-] and cites the reference to the
uncovering of the hair of the Sotah in the Torah.  It then appears to
achieve some form of reconciliation with the Mishna by saying that the Das
Moshe aspect is limited to certain circumstances (see the gemora there for
the circumstances cited, especially as the words need defining) and the
other forms of hair covering (eg in an alley way) is only Das Yehudis.

So the majority opinion of the later day commentators is not that there are
not halachos of modesty specifically based on social and cultural climate,
just that hair covering is not one of them, because of this gemora in
Kesubos which appears to put it into the category of Das Moshe.

And what Rabbi Broyde is arguing is that if you go and read a number of the
rishonim [early Rabbinic leaders --MOD], you can see that while indeed the most
straightforward way of reading the gemora in Kesubos is to reach a conclusion
that hair covering is Das Moshe, a number of the rishonim if you read them
carefully appear not to read the Talmud there in this way, and appear to rely on
the way the Mishna was originally framed to include hair covering under the
category of Das Yehudis.  And if it is included under the rubric of Das Yehudis,
then it would mean that in a climate where the practice of modest Jewish women
is not to cover the hair, it would not be mandatory, due to the way Das Yehudis

That is the essence of his piece.  By the way, one of the people that Rav
Broyde argues includes hair covering under Das Yehudis is no less than the
Shulchan Aruch.  So, if David Tzohar were right, and one could not argue
with the Shulchan Aruch, then the fact that the  vast majority of the later
commentators hold that hair covering for a married woman is Das Moshe would
in fact cut no ice, as they would be going against the Shulchan Aruch.  But
of course Rav Broyde makes no such claim.  All he is claiming is that if you
are talking about otherwise observant women, operating in a framework where
otherwise observant women are not covering their hair, maybe it is because
they are relying on the rishonim and the Shulchan Aruch position that hair
covering is only Das Yehudis.




From: David Maslow <maslowd@...>
Date: Tue, Mar 9,2010 at 02:01 PM
Subject: Israel's declaration of independence

Is anyone aware of a statement signed by many Roshei Yeshiva [heads of Yeshivot
--MOD] shortly after the May 1948 Declaration of Israel's Independence
supporting the new state?

A link to the text or its description would be very much appreciated.

I saw a mention of it recently, but lost the reference.

David E. Maslow


From: Michael Kahn <mi_kahn@...>
Date: Mon, Mar 8,2010 at 09:01 PM
Subject: saying a beracha on every mitzva

> why don't we make a
> bracha over every mitzvah - or at least the positive ones?

See Encyclopedia Talmudis under the entry "birchas hamitzva." It describes your
questions as "a deep question that is discussed by many [Rishonim]... and that
in the final analysis we must rely on what brachos the minhag [custom --MOD] is
to recite and what is not recited as there is no overarching principal that
explains all brachos."  Nevertheless, many different reasons are given for why
certain brachos are not recited.

Yitzchok Kahn

From: Avraham Etzion <atzion@...>
Date: Mon, Mar 8,2010 at 11:01 PM
Subject: saying a beracha on every mitzva

This was discussed in length by the Abudarahamm in his book.  Basically 
we never make a beracha on:

1) Mitzvot bein adam lechavero [between people --MOD] - as the text states 
Asher Kidshonu Bemitzvotov Vetzivonu [who has sanctified us in his commandments
and commanded us --MOD] - and this applies only to Mitzvot that 
are unique to the Jewish people.  All people are expected to fulfill Mitzvoth 
bein Adam Lechavero and they do so even if not commanded. (Aruch Hashulchan) 

2) We make a Beracha on a Mitzvah that can be clearly defined and that has a
specific limited scope-for example when taking the Arva Minim [four species for
Sukkot --MOD] - but when the Mitzva has no limit-such as Kibud Av Veem [honoring
father and mother --MOD] that we can never fully fulfill 
it-there is no Beracha.

3)  There are no Berachot on the act of prayer-we do not make a Beracha before
Davening!  The Rosh states that for this reason we do not recite a Beracha
before reading the Hagada.  As for the specific question on Amalek-there are no
Berachot for reading from the Torah.  The Berachot we make there are not Birkot
Mitzva but Berachot on Talmud Torah (Written Torah and Oral Torah).  Secondly
there is no specific Mitzva to read Parshat Zachor.  The Mitzva is to remember 
what he did-and that is the whole year.

There are specific reasons for many Mitzvot-but the above principles seem 
to cover all the Mitzvoth (as far as I can recall).


From: Menashe Elyashiv <Menashe.Elyashiv@...>
Date: Tue, Mar 9,2010 at 09:01 AM
Subject: yibbum

In MJ 57/91 [it was written]
> It has therefore become the custom (and a fairly recent one) not to give a
> choice of yibbum or chalitza, but to insist on the latter.  Thus, the law 
> is fully observed, but in only one of the two permitted ways...

However, there have been cases of Yibbum in Israel.  One was with a Yabam 
(brother in law) who had lost his foot. The choise was between leaving the 
zekuka (sister in law) an aguna or yibbum. 


End of Volume 57 Issue 92