Volume 9 Number 31
                       Produced: Wed Sep 22 16:23:16 1993

Subjects Discussed In This Issue: 

Halacha K'Batrai
         [Morris Podalak]
Women's Prayer Groups
         [Aliza Berger]


From: Morris Podalak <morris@...>
Date: Wed, 22 Sep 93 05:39:41 -0400
Subject: Halacha K'Batrai

Aliza Berger asked about the principle of "Halacha K'batrai".  The
following is taken from the Encyclopedia Talmudit article on the
subject.  The authority for some of the statements is given in

The concept is not mentioned in the Talmud, and first appears in the 
writings of the Geonim (7th-10th cent.), where it is used in deciding
between Amoraim (Talmudic sages who lived after the closing of the Mishnah
l. 3rd cent.) who disputed, and where no clear ruling was given in the 
Gemara.  In such cases the halachah is decided according to the later sage.

The principle is stated by Rav Sherira Gaon in his Iggeret, and by Rabbi
Shmuel Hanagid in his Mevo Letalmud.  It is used in deciding halachah by
the RIF, RAN, RITVA, ROSH, and countless others.  Some Rishonim (rabbis of 
the 11th - 15th cent.) hold that this principle applies to all Amoraim 
(RIF, RAZAH, TOSAFOT, RAVAD, RASHBA, RAN, Talmidei Rabbenu Yona).  The 
exception is when a student argued with a teacher face to face.  In such
a case the halachah is like the teacher.  But, if the student disagreed
with his teachers ruling after his teacher's death, the halachah is like 
the student because he is considered as "batrai" (later)(RASHBA, RAN,
Yad Malachi).  

Others say that "Halachah Kbatrai" applies only from the time of Rava and
Abbaye (4th cent.) and onward, but that before this time the halachah is
always like the teacher and not like the student (Rabbi Shmuel Hanagid,

The prinicple is even applied to disputes between the 2 Talmuds.  If the
Bavli has a ruling that disagrees with one in the Yerushalmi, the 
halachah is like the Bavli because it was compiled later (RIF, Sefer
Haeshcol).  The principle is very strong and is used to sometimes over-
ride other principles.  For example, the RIF in one case follows a 
minority opinion because the person who stated it (Ravina) lived after
the (majority) sages who disagreed (Rav and Shmuel and others).  The idea
here is that Ravina must have known of the ruling of his predecessors.
The fact that he disagreed nontheless, implies that he had good reason.

This principle applies only if the later authority bases himself on logic.
If, however, he relies on earlier sages, his opinion is not considered
as "batrai" (ROSH).  

If the earlier authorities felt sure of their ruling and the later ones 
were not sure, there are some Rishonim who hold that the doubt of the 
later authority is not sufficient to overturn the ruling of the earlier 
authority (RAMBAN, Rabbi Shmuel Hanagid).  Others say that since the later
authority knew the rulings of the earlier ones, and still saw fit to 
question them, then we too should be in doubt (RAMBAN in the name of the 

This principle applies to disputes that took place after the close of the 
Talmud as well, provided that the opinions of the earlier authorities 
were sufficiently well known (MAHARIK, MAHARASHDAM).  If the rulings are
not well known, it is possible that the later authority was unaware of 
them, and would not have disagreed had he known (MAHARIK, RADBAZ, MAHARAM
Alsheich).  Others say the principle is limited to those arguments in the
Talmud (SHACH, MAHARAM Alshakar based on the wording of the RAMBAM).

Some poskim argue that the principle applies only if the disputants
were of roughly the same intellectual stature, i.e. both Amoraim or
both Rishonim.  In such a case we rule like the later authority.
But if one was an Achron (after 15th cent. roughly) and the other
a Rishon, then the principle doesn't apply, just like an Amora
cannot argue with a Tanna (one of the sages of the Mishnah). (MAHARAM

More details can be found in the encyclopedia article itself.
G'mar Tov


From: <A_BERGER@...> (Aliza Berger)
Date: Wed, 22 Sep 1993 11:07:03 -0400 (EDT)
Subject: Women's Prayer Groups

Eitan Fiorino writes about women's prayer groups:

>if there are other halakhic problems, for instance with the very 
>institution of the services, or with brachot which are of questionable
>halakhic viability, one has entered the realm of actually distancing
>oneself form G-d...

The moderator has already cautioned against this line of argument, since
Orthodox rabbis have sanctioned and support women's prayer groups.  Since
the same arguments are being repeated again, perhaps it is time to end
this line of discussion, unless Rabbi Weiss responds to Eitan's query,
which would be interesting to hear about.

>From: Hayim Hendeles 

>For the past 2000 years, despite all the great women in our history,
>we have never heard of a case of any of them attempting to start
>women's prayers groups. And noone would argue that today's women
>are at a higher spiritual level then these spiritual giants. 

No, but I would argue that in those times, educated women were the
exception, while today many Jewish women are educated.  At no
time in the past was there the critical mass of educated women that is
necessary to form a group such as the women's tefilah.  One could not
have expected a women's tefilah to arise in the past.

>From Eitan Fiorino:

>the fact that prayer with
>the congregation seems to be viewed as preferable for women (not
>required, as it is for men).  

I reiterate (1) that the women's tefilah meets only once a month, and
(although this is really another topic) that (2) one should be careful
about saying that prayer with a congregation is required for any
individual, male or female, since the strongest halakhic statement made
about this is that one should do it if it's reasonably possible; this
isn't the same thing as a requirement (for example, people do not
actually - although the Mishnah Berurah cites approvingly a case where
this was done - leave work in the middle of a business deal to pray with
a minyan).

>If rabbis were invested in "keeping women down," they would have
>permitted women's tefila and forbidden women's learning. 

Yes, the learning is more important.  I would choose it over the women's
tefilah.  As I said above, it is only with the "average" woman's
increased learning that the option of a women's service has become a
possibility.  By this I mean basic knowledge of the siddur and how to
read Hebrew.  However, just as is the case with men, not all women are
inclined toward, capable of, or have the opportunity to spend incredibly
large amounts of time learning.  The women's tefilah can be especially
important for such women, as well as serving women who are doing a lot
of learning.  There is no reason to have to choose either the women's
tefilah or learning.

>A final point which no doubt adds to the controversy is the similarity, in
>outward appearance, of women's tefila to women's and egalitarian
>"minyanim," and the existence of various forms of feminist women's
>prayer services in "liberal" Judaism.  

I have yet to hear of a "women's minyan" that did not include men. Since 
egalitarian minyanim consist of both men and women, they don't look
similar to a women's tefilah.  A liberal service would not likely be using
the Orthodox prayerbook as the women's tefilah does.  

It is correct to say that the Orthodox protest is against the women's
tefilah because it is an innovation.  However, other Orthodox rabbis view
it as a positive innovation in view of women's increased knowledge. 
Women's learning was also protested against when it was first
introduced.  As is well-known, the Chofetz Chaim ruled that it was
permissible to teach women as a response to a "need": the women were
being lost to Judaism because they were acquiring secular learning that
exceeded their Torah learning.  However, many then and now view women's
learning not as a reponse to a need that would ideally not exist, but as a
positive thing in and of itself.  

Many of those who object to women's prayer groups have been 
presenting it as a non-preferable need that ideally would not exist and
which might have to be responded to b'dieved [after the fact].  Kibi 
Hoffman writes that the women themselves have been presenting it this
way.  I myself have been presenting it as an option rather than a need.
I think there is room within the halakha for such options.  There is no 
reason to only perform acts which are required of one.  Some personal taste 
is allowed for.  For example, singing zemirot on Shabbat is spiritually
satisfying to some, while others don't enjoy it.  

Steve Ehrlich writes:

>For things like this that are halachically optional and come from outside 
>traditional channels, I think the evidence indicates he [Rav Moshe] would 
>have ruled against them.

Actually, it is on record that he does rule against them, but the details are 
interesting enough to present here.   This responsum was written down by 
Mordechai Tendler, Rav Moshe's grandson, on Rav Moshe's stationery, in 1983.  
The question was asked by a local synagogue rabbi.
 (The translation and notes in brackets are mine)

First is mentioned Rav Moshe's view in Iggerot Moshe Orach Chaim Part 4
Number 49.  [This responsum concerned Orthodox feminists who do things
such as wear tallitot. Rav Moshe concluded that such actions are
permitted depending on the woman's motivation.  If the woman is doing it
out of a desire to perform a commandment even thought she is not
obligated, then it is fine, just as women shake a lulav even though they
are not obligated.  However, any declared feminist (evidenced by the
general intents of the feminist movement as perceived by Rav Moshe)
would not be doing it for this reason but rather out of protest against
G-d and His Torah.] Then is quoted the part of the Iggerot Moshe
responsum in which Rav Moshe says that performing an act out of protest
against G-d and Torah is not a mitsva. To the contrary, it is forbidden.
For doing something out of a thought that there might be a change the
laws of the Torah is the one of the forms of kefira [denial of the

[The responsum about women's prayer groups continues:]

In practice, it is difficult to find a reality where this lack [i.e.
such an intent] would not be the case, therefore it is difficult to say
about any "women's minyan" that this lack is not present in their

However, just as a svara [conjecture] it is possible to say that if
there is a group of pious women whose intent is only le-shem shamayim
[for the sake of heaven] without any protests against the Torah and
customs of Israel, then of course, how would it be relevant to prevent
them from praying together?  And they may also read from the Sefer
Torah, however, they should be careful not to do this in a manner that
could be mistaken for a public Torah reading.  For example, they should
not say the Torah blessings in public, or rely on what they blessed
before [i.e. in birkhot ha-shachar], or if by chance they have not
blessed before, they should say the blessing quietly.  Of course, there
are other relevant details that would need to be enlightened upon with
reference to this issue.  Every ba'al hora'ah [local rabbi?] should act,
in this issue, in a way that is in accordance with this hashkafa

I close with a blessing that you should conduct your rabbinical duties
le-shem shamayim.

P.S. There is no issur gamur [absolute prohibition] for a woman who is
menstruant to look at or touch a sefer Torah.  Even though it is proper
to be stringent, the custom has spread that the women are lenient with
regard to this. [End of responsum]

Because of the practical details alluded to and outlined by this
responsum, the potential of its practical applicability was raised when
it was first issued.  However, it was later clarified that these details
were meant only as a theoretical argument.  The underlying assumption
is, as in the Iggerot Moshe responsum, that someone who questions the
roles given to men and women by "G-d and the rabbis" cannot be a pious
person.  See the Iggerot Moshe responsum for details on the roles of men
and women: For example, Rav Moshe says there that women are created by
G-d as suited to raising children, therefore they are exempt from Torah
study.  Within Rav Moshe's framework, no questioning of G-d's assigning
different roles to men and women is allowed, hence any actions emanating
from such questioning, such as a women's tefilah, are also forbidden.

Rav Moshe's definition of a women's group acting be shelo le-shem
shamayim [not for the sake of heaven] is that the women consider
themselves a minyan, or have the intent to change the laws of the Torah.
For Rav Moshe, such intent includes changing that men and women have
different roles.  However, other Orthodox rabbis do not include assigned
roles as part of the laws of G-d and the sages.  Thus, the women of the
women's prayer groups would not necessarily fall in the "shelo le-shem
shamayim" category, evidenced by the facts that we don't consider
ourselves a minyan and we are not out to change the laws of the Torah as
these rabbis view them.

Note that that Rav Moshe doesn't think there's an insoluble problem with
confusing the women's prayer group with a minyan.  Also, he does not
differentiate at all between the permissibility of having such a group
for praying and for reading from a sefer Torah.  He doesn't think that
these innovations, in and of themselves, will blur distinctions between
men and women that he believes ought to exist (since he says that in
theory, the actions are permissible).  He does, however, have a strict
definition of the propriety of the motivations behind them.

Aliza Berger


End of Volume 9 Issue 31