Volume 59 Number 90 
      Produced: Wed, 05 Jan 2011 12:00:22 EST

Subjects Discussed In This Issue:

Aliya to Mizraim  
    [Elazar M. Teitz]
Full moon in halacha 
    [Alan Cooper]
Hermeneutic question 
    [Martin Stern]
Hospital Discharge on Shabbos 
    [Chana Luntz]
Inheritance of a rabbinical position (4)
    [Anonymous Freda B Birnbaum  Tal S. Benschar  Gilad J. Gevaryahu]
Legal Shiluach Hakein 
    [Orrin Tilevitz]
Married women's hair covering 
    [Ralph Zwier]
opening / closing the Ark 
    [Stu Pilichowski]
Shuckling (2)
    [Bernard Raab  David Tzohar]


From: Elazar M. Teitz <remt@...>
Date: Sun, Jan 2,2011 at 03:01 PM
Subject: Aliya to Mizraim 

Sammy Finkelman writes (MJ 59#89):
> Onkelos translates at the beginning of the Sedrah and Sefer Shemos - coming to
> Mizraim as going UP, (Exodus 1:1) and leaving (or being chased out actually)
> Mizraim as going DOWN (Exodus 6:1),

and questions why, since going to Mitzrayim is referred to in the Torah as going
down.  However, he is mistaken on both counts.  There is no mention in 1:1 to
going up. Sammy was apparently misled by Onkelos' use of the word "alu."

However, despite its similarity to the Hebrew word for going up, the Aramaic
word means "came."  Witness 12:1, "Bo el Paro," come to Pharoah, which is
rendered "ul."  The Aramaic word for going up is "asaka," as in 1:10, "v'ala min
ha'aretz," which is translated as "v'yiskun."

As for 6:1, there is no reference whatsoever in Onkelos to going down.  The
Targum has two verbs, one meaning "to send away" and one meaning "to chase." 
These are the same as the Hebrew verbs in that verse. 



From: Alan Cooper <amcooper@...>
Date: Fri, Dec 31,2010 at 12:01 PM
Subject: Full moon in halacha

Bob Kosovsky <kos@...> wrote (MJ 59#88)
> The rare occurrence of the full moon/winter solstice with an
> accompanying lunar eclipse brings to mind a question I've had.
> While the new moon certainly plays a big role in Judaism, the full moon
> seems to
> play a very minor role.  In fact, the only thing I can think of is the
> occurrence of the first night of Pesach.
> I suppose the two "tu" days (15 Shvat and 15 Av) might have some
> relationship to the full moon, but I don't recall ever hearing/reading
> about it, if in fact there is any.
> Are there any other days or ideas/concepts that depend upon a full
> moon?

It may be worth mentioning the scholarly theory that the original meaning of
Shabbat was "Full Moon," based on the possible Akkadian cognate shab/pattu.
That theory offers a convenient explanation for the biblical cliche hodesh
ve-shabbat (Isaiah 1:13 etc.), which could have meant "New Moon and Full
Moon" at some point, and it also might account for the prevalence of Day
14/15 as a festival date.  One solution to the famous problem posed by the
phrase mi-mohorat ha-shabbat ("on the morrow of the Sabbath") in Leviticus
23 is that it originally meant the day following Full Moon, supporting the
normative halakhic interpretation (e.g., Rashi: mimohorat yom tov) against
the sectarians, particularly if "yom tov" (= Full Moon in this case) is
allowed to retain its astrological significance as an "auspicious day."

Alan Cooper


From: Martin Stern <md.stern@...>
Date: Wed, Jan 5,2011 at 11:01 AM
Subject: Hermeneutic question

It had always puzzled me that we say the braita of Rabbi Yishmael after the
perek of Eizehu Mekoman each morning. I was aware that these were meant to
represent the two aspects of Torah shebe'al peh, Mishnah and Talmud (in the
sense of analysis of the former). The usual reason cited for the choice of
that particular perek of Mishnah is that there are no divergent opinions
(machloket) in it but I have never heard any satisfactory explanation for
the selection of the braita, especially as it does not appear in the Bavli
but only as an introduction to the Sifra (Torat Kohanim).

While learning Daf Hayomi recently, it struck me that there might really be
a close connection between the two passages. In the Gemara to Eizehu
Mekoman, there is a lengthy discussion (Zevachim 49b-51a) about whether, in
regard to kodshim, something learned by one of the middot (hermeneutic
rules) of hekkesh, gezeirah shavah, kal vachomer and binyan av, can then be
used as the basis for learning something else through one of them (davar
halmeid be... mahu sheyachzor vilameid be...? [something learned through
a..., can it be used to teach further using a...?]). Perhaps the braita was
chosen to bring this Gemara to mind. If so, the choice would seem extremely
appropriate. I would be interested to hear if anyone has come across this

There is only one problem with this line of thought, which I have written
about previously, that Rabbi Yishmael does not include the hekkesh in his
list of 13 middot One suggestion was that it was subsumed under the heading
of gezeirah shavah but this would seem to be ruled out by the Gemara in
Eizehu Mekoman. 

If the two were essentially aspects of the same rule, then, having established
Davar halmeid be'gezeirah shavah' yachzor vilameid be'gezeirah shavah'
[something learned through a 'gezeirah shavah' can be used to teach further
using a 'gezeirah shavah'], it would follow that the same would be true were
either 'gezeirah shavah', or both, to be replaced by the word 'hekkesh'. This is
not true, as is proved in the Gemara there (where Rabbi Yishmael's school is
quoted), since one can learn either a hekkesh or gezeirah shavah after a
gezeirah shavah but one cannot learn either after a hekkesh. Can anyone provide
an alternative explanation for Rabbi Yishmael's omission in the Sifra?

Martin Stern


From: Chana Luntz <Chana@...>
Date: Mon, Jan 3,2011 at 02:01 PM
Subject: Hospital Discharge on Shabbos

Sammy Finkelman writes (MJ 59#83):

> Now in this case the answer seems to be it is almost always possible
> to take care of the situation using amira l'akum (telling or asking a
> non-Jew to do something) of a Rabbinical Shabbos violation, and this
> might be one of the purposes for which amira l'akum can be used
> l'chatichilah.
> We need a brief review of the (very complicated) rules for amira
> l'akum (which would not capture it precisely I know)

Sorry I have been busy, and I am not sure if this captures what you would
like captured, but the Shulchan Aruch in Orech Chaim siman 328 si'if 17
states that a sick person who is forced to lie down because of his sickness
but is not in sakana [mortal danger] (and the Rema then adds that if
somebody is sufficiently sick and in pain all over his body even if he is
actually walking around it is like one who needs to lie down) they can say
to a non Jew to perform for him healing  (And the Mishna Brura si'if katan
47, adds here, "even by way of an issur d'orisa [Torah prohibition] and this
is the law for the rest of his needs like to bake or to cook and similar to
these if his needs are such") but not to violate for him an issur d'orisa
[ie by way of a Jew] even if there is danger to a limb.

And the Shulchan Aruch continues: to violate for him an issur d'rabbanan
[rabbinic prohibition] actively [b'yadayim] there are those who permit even
if there is no danger [sakana] to a limb, and there are those who hold that
if there is danger for a limb one can do [a prohibited rabbinic act] and if
there is no danger even to a limb he cannot do [a prohibited rabbinic act]
and there are those who hold that if there is no danger to a limb he should
do it by way of shinui [ie by an unusual means] but if there is danger to a
limb he should do it without a shinui and there are those who hold that even
if there is a danger to a limb he should not do action that is close to a
melacha d'orisa [Torah forbidden  act] but actions that are not close to a
melacha d'orisa he should do even if there is no danger to a limb and the
third opinion appears correct [And the Mishna Brura si'if katan 57 states
that this third opinion is the one that says that it is permitted to do all
shvusim [rabbinic prohibitions] and only by way of a shinui if he is sick
all over his body and there is no danger to a limb and if there is danger to
a limb he does not need a shinui at all].

The Rema then adds here that it is permitted to say to a non-Jew to make
food for a katan [child] who does not have what to eat because the stam
needs of a katan is like a sick person shein bo sakana and [also adds that]
all the prohibitions to be done by way of a Jew are also prohibited to be
done by way of the sick person himself but that if it is done by way of a
non-Jew it is permitted and the sick person can assist him a little because
in assistance there is nothing of substance.

So as you can see, amira l'akum in a situation where you are dealing with a
choleh sheain bo sakana appears to be the straightforward and preferred
option, d'orisas done by a Jew are out of the question and rabbinic
prohibitions are a somewhat more complicated equation.

Hope this helps



From: Anonymous
Date: Fri, Dec 31,2010 at 10:01 AM
Subject: Inheritance of a rabbinical position

Clevelanders will recall Congregation Shomre Shabbos which had a similar
dispute -- but in this case the son was a member of the community and would
serve regularly. The congregation split in two -- some davening in the basement
with the son, others upstairs.  The dispute went to a civil court.

Shuls are run by boards and serve there members.  The story as painted by
anonymous seems to indicate that the Rebbetzin overrides the board.
Perhaps a Chiropractor is needed to see if the board has a spine.  Or
perhaps this is the Rebbetzin's posturing for a pension.

From: Freda B Birnbaum <fbb6@...>
Date: Fri, Dec 31,2010 at 11:01 AM
Subject: Inheritance of a rabbinical position

Very interesting question.

I wonder, how long was the former rabbi there?  Did he himself have any 
such expectations?  Clearly the haredi son isn't very interested.

It seems quite unusual for a "modern Orthodox" shul to find itself in this 

You didn't ask for opinions but for examples, so I'll try to refrain... 
but.... as a synagogue board member myself, I'd have to say that it is the 
congregation as a whole that should be deciding who its leadership should 
be.  Perhaps the son can be engaged to give an occasional lecture or 
something, to maintain the connection.  But it seems clear that he is not 
an appropriate candidate for this position.

Freda Birnbaum, 


From: Tal S. Benschar <tbenschar@...>
Date: Fri, Dec 31,2010 at 11:01 AM
Subject: Inheritance of a rabbinical position

My first reaction when reading this post is that this is a situation which requires halakhic guidance.  The issue, as presented, is complicated.  There is indeed a halakha of inheritance of positions of authority, but clearly that has to be weighed against the needs of the tsibbur.  This is simply NOT something that should be determined by either a shul board nor by a rebbetzin.  You need a very learned poseik to delve into it.

My second reaction is that in this situation, there is no right to inherit because the son does not intend to take up the responsibilities his father had when he was alive.  The poster wrote:  "The rabbi's son has indicated that he will not reside in the community, but rather walk over every few weeks to be in the congregation. He apparently indicated to the board that his main interest in fulfilling the position was to please his mother, more than it was to serve the congregation."

IMHO, even if the son has the right to inherit his father's position, that means to take on all his responsibilities along with the privileges.  It does not sound like that is what he is willing or even wants to do.

Tal Benschar

From: Gilad J. Gevaryahu <gevaryahu@...>
Date: Fri, Dec 31,2010 at 03:01 PM
Subject: Inheritance of a rabbinical position

Anonymous (MJ 59#89) tells us a story of a  Rebbetzin who thinks that she has
the right to install her son to the position to a community rabbi after her
husband, the rabbi, died. This idea is not new, and is discussed in halacha. In
fact we have two halachic questions: 

(1) Is this an issue that halacha has a say at all, as most synagogues in the US
(I assumes that this is a US synagogue, but even if it is not, the concept will
apply anywhere) are established as a not-for-profit institutions with an elected
board of directors who make decisions based on a majority.The not-for-profit has
a title to the place. Why should the Rebbetzin has a say at all? The local law
apply based on dina-de'malchuta dina. It is thus a property 
dispute adjudicated based on local laws. 

(2) But even if it was a private place, does the rabbi acquire a hazaka on his

Many synagogues in the US have a provision in their by-laws that an halachic
dispute with the rabbi can be taken to a Beit Din of his movement. But this kind
of a provision will not be applicable, as it is the rabbi who has such a right,
not the Rebbetzin.

The late Professor Sidney B. Hoenig from YU addressed these very questions in
"Filial Succession in the Rabbinate" Gratz College Annual of Jewish Studies,
Vol. I, Philadelphia, 1972. pp.14-22. He cites among many opinions the Hatam
Sofer who believe that a rabbi has such a right. Hoenig in his conclusion said: 
"In summation to this problem of filial succession, the opinion of Rabbi
Epstein, the author of Aruch Ha-Shulhan is most fitting:

At present the custom of the son having priority is not prevalent. The members
of the community may choose any rabbi they want -- to teach and to judge in the
Jewish community."

Gilad J. Gevaryahu


From: Orrin Tilevitz <tilevitzo@...>
Date: Tue, Jan 4,2011 at 11:01 PM
Subject: Legal Shiluach Hakein

On the way back to my office last week from saying a shehecheyanu upon seeing my
first varied thrush (was that the right beracha? - I only saw the bird, I didn't
eat it) - I was musing on halachot pertaining to bird-watching, so my thoughts
naturally turned to shiluach hakein, the commandment to chase away the mother
bird before taking the eggs or chicks from the nest. 

Of course no self-respecting bird-watcher would think of doing so, in part
because of the federal Migratory Bird Treaty Act, which bar, under penalty of
fine or imprisonment, capturing or taking (among other acts) the eggs of
designated migratory birds. The law is enforced -- it is not merely a dead
letter, only on the books. 

It occurred to me to ask: does this law conflict with the commandment of
shiluach hakein and, if so, does the law take precedence under the principle of
dina demalchuta dina [secular law is treated as binding religious law]? So I did
some research. 

I consulted Shulchan Arukh Yoreh Deah 292 and a parallel source in the Mishneh
Torah, Hilchot Shechitah (I think it's 9:13), the Arukh Hashulkhan at the same
siman, and an article by Rabbi Zvi Goldberg of the Star K at
http://www.star-k.org/kashrus/kk-shiluach-hakan.htm. Interestingly, that article
does not address my question at all. The text of the act is at 


and a complete list of birds covered by it is at 


Here are my (incomplete) conclusions:

1. The mitzvah applies only to kosher birds. However, while one may eat birds
only if there is some tradition that they are kosher, the mitzvah applies even
where there is no such tradition. Therefore, even if one would be permitted to
eat none of the birds on the list, the mitzvah would apply to many of them,
including American robins, numerous varieties of sparrows, Canada and snow
geese, and at least some varieties of ducks (e.g. black ducks, which are related
to mallard ducks).

2. At least according to the Arukh Hashulchan, the commandment is to drive away
the mother and take the eggs (or chicks). One may not say "I don't want, or
can't eat, the eggs, and therefore will abstain". So unless dina demalchuta
applies, one may not use it as an excuse not to perform the mitzvah.

3. The mitzvah includes both driving away the hen and taking the eggs. While it
is not clear to me from the statute that one breaks the law merely by driving
the hen away, one has not fulfilled the mitzvah unless one also takes the eggs
or chicks, which clearly would break the law.

4. We have discussed the breadth of dina demalchuta dina on this list before,
and there is good authority -- which I think is correct -- that it applies to
civil law generally.

5. While the mitzvah is Toraitic and dina demalchuta is rabbinic, so that
ordinarily the mitzvah should take precedence, negative rabbinic commandments at
least some times take precedence over positive Toraitic ones under the principle
of "shev ve-al taaseh". (That is how, for example, the rabbis could ban blowing
the shofar on Shabbat.) Does that reasoning apply here, or is shiluach hakan
different because, perhaps, the reward for it is long life?

Another, chicken-and-egg (I could not help myself) question:

It is possible (I have not analyzed the issue) that notwithstanding the
Migratory Bird Treaty Act, shiluach hakein would be permissible under the    
Constitutions free exercise clause. (See, e.g., Employment Division v. Smith,
Smith, 494 U.S. 872 (1990) and the subsequent federal Religious Freedom
Restoration Act). 

Assuming that shiluach hakein would otherwise be barred because of dina
demalchuta, which doctrine does one apply first, dina demalchuta or the free
exercise clause? That is, does one say 

(1) one never gets to dina demalchuta because the mitzvah is protected by the
free exercise clause, or 

(2) the free exercise clause is designed to break an otherwise unavoidable
conflict between secular law and the practice of religion, and here the religion
itself defers to secular law so one need not invoke the free exercise clause? It
is not clear to me whether this a question of halacha, U.S. constitutional law,
or both.

And that is far as I've gotten. Comments?


From: Ralph Zwier <ralph@...>
Date: Sun, Jan 2,2011 at 12:01 AM
Subject: Married women's hair covering

Has anyone on this list heard of a government decree in the time and at the 
place of the Aruch Hashulchan forcing (married?) women to have their hair 

The website http://www.thehalacha.com/attach/Volume3/Issue28.pdf claims that 

"... In the days of the Aruch Hashulchan the government said married women may
not cover their hair. Therefore he held (footnote 54) that during that time hair
was not considered to be an ervah since people became accustomed to seeing women
with their hair uncovered...."

Ralph Zwier


From: Stu Pilichowski <cshmuel@...>
Date: Sat, Jan 1,2011 at 03:01 PM
Subject: opening / closing the Ark

When is the Aron supposed to be open before reading the Torah to remove the Torah? 
Vayehi Binsoaah Haaron? 
Can it be opened at Ayn Kamochah?
Is it a big deal one way or the other?
How about when you return the Torah? As early as Mizdor LeDovid? Or do you have to wait for Uvenoochoh Yomar?

Stuart Pilichowski 
Mevaseret Zion, Israel


From: Bernard Raab <beraab@...>
Date: Fri, Dec 31,2010 at 04:01 PM
Subject: Shuckling

This discussion seems to have run its course without anyone mentioning the
Christian sect which seems to have engaged in similar fervent forms of worship,
whose very name honors the form: the Shakers. I don't think that their form of
shuckling would seem very familiar to us, however, as it seems to have been
accompanied by fervent singing and dancing, with men and women strictly separated.
On the other hand...

Bernie R.

From: David Tzohar <davidtzohar@...>
Date: Sat, Jan 1,2011 at 02:01 PM
Subject: Shuckling

Stuart Wise (MJ 59#89) asked how shaking enhances kavvanah.

In many cultures and societies rhythmic bodily movement is an important
part of religious prayer and ritual. This can either be with music
i.e. dance, or without music as in shuckling. There are Protestant sects such
as the Quakers and Shakers of Pennsylvania who shake during prayer, and
there are of course the whirling dervishes of Sufi Islam, who work
themselves into a religious frenzy.

Kavvana requires a certain negation of the physical self in order to reach
a higher spiritual state in the hope of communing with the Divine. On the
other hand we can try to let our bodies participate in the act of prayer.
Mind and body must be as one in the service of Hashem. This is also why
totally silent meditation is unacceptable. Movement of the lips (akimat
sfatayim) is required as the minimum participation of the body in what is
ultimately a spiritual pursuit. The body must pay "lip service" to avodat

In the technical sense rhythmic bodily movement is a kind of self hypnotism
which can alter the state of consciousness. I was once in Meron during the Lag
B'omer celebrations, where I joined a group of Spinka chassidim. We were over 50
men, hands linked together in front of the waist and at the small of the back.
In this circle we shuffled one step at a time while singing Pizmon Bar-Yochai,
for over 1/2 an hour without stopping. We were actually in a trance which
unfettered the spirit, where your whole self, body and soul is mekavven.

David Tzohar


End of Volume 59 Issue 90