The Agunah Problem, Part 1; Incarceration and Free Speech

The Agunah Problem, Part 1; Incarceration and Free Speech

Marc B. Shapiro

1. There has been a lot of discussion recently about the International Beit Din and its rulings allowing certain marriages to be voided, thus freeing women from being agunot. As is to be expected, this beit din has been subject to strong attacks, even of a personal nature, despite the fact that the members of the beit din are recognized talmidei hakhamim. These dayanim are intent on keeping everything above board and have published the reasoning behind their rulings, thus giving opponents the opportunity to engage in halakhic argumentation.

From what I have read, the International Beit Din has three approaches to freeing agunot. One is annul the marriage based on mekah taut, i.e., there was some problem with the husband that would have prevented the wife from marrying him had she known of it. This is a perfectly valid mechanism that has been used by many poskim, such as R. Zvi Pesah Frank, R. Moshe Feinstein, and R. Avraham Shapiro. Although one can, of course, criticize the application ofmekah taut to a particular case, the mechanism itself is part of standard halakhic operating procedure and the International Beit Din is well within its rights to use mekah taut when possible.

The second approach is to find a problem in the marriage ceremony itself, meaning that the marriage never took place. For example, one can show that there were no proper witnesses to the marriage. Here again, one can disagree with particular rulings, but not with the basic approach.

The third approach is that of get zikui, which in the current context means that the beit din issues a divorce to the woman on behalf of the man, even if the man has not approved of this and even if is against his will.[1] While there has been a good deal of discussion of this approach, I can’t find on the International Beit Din’s website that any marriage has actually been dissolved by using this mechanism. Unlike the other two approaches, there is little precedent for use of a get zikui, which means that its chances of being generally accepted are nil.

The use of a get zikui is actually suggested by R. Jehiel Jacob Weinberg, Seridei Esh, vol. 3, no. 25. In fact, R. Weinberg’s responsum is the most detailed discussion of get zikui but surprisingly it is not included on the International Beit Din’s website. It must be noted, however, that R. Weinberg is only prepared to suggest aget zikui if the husband would want the get to be given. However, in the contemporary agunah situation the problem is that the husbands do not want to give the wives a get, and concerning these ’נפל היסוד של כתיבת גט מטעם זכי :cases R. Weinberg writes

Is there another possible approach? How about a heter meah rabbanim for a married woman if she can’t get a get? I know you are thinking that this is crazy, but look at the following page, which comes from the medieval work Etz Hayyim by R. Jacob Hazan.[2] As you can see from the very end of the page, it states that the rabbis required a man to give a get if he contracted a which in this case means he was already ,באיסור marriage committed to marry someone else. Then it says that if this man disappeared the woman can be freed with aheter meah rabbanim (actually, it says ish, not rabbanim, but I don’t want to get into that now). This is a very radical position, that a woman can be freed by a heter meah rabbanim, and it is attested to nowhere else. Not surprisingly, R. Israel Brodie, the editor of Etz Hayyim,[3] calls attention to this unusual halakhic position. R. Shlomo Yosef Zevin also refers to this novel idea.[4]

But are Rabbis Brodie and Zevin correct? Israel Moshe Ta-Shma and Shlomo Zalman Havlin say no, and see this as a serious mistake. According to them, the last case discussed inEtz but באיסור Hayyim has nothing to do with the man who married refers back to a case mentioned earlier on the page of a man who was only committed to marry a woman. If this man then In other words, the woman .מתירין הבחורה במאה איש ,disappears is released from any obligation to marry the missing man, but this has nothing to do with a woman already married. I will let the readers decide for themselves who is correct.[5]

As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce.

Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]:

ברוך ה’ א-להי ישראל אשר הזריח לנו את המאור הגדול הזה אשר במבטו החודר פלש למעמקי הדורות וצפה גם את דורנו הפרוץ לבשתינו ולמגנת לבבנו, אוי לעינים שכך רואות ואוי לאזנים שכך שומעות, ואלו ראו שאר חכמי הדורות את דורנו היו חותמים על פסקו של רבנו בשתי ידים. כי המציאות הוכיחה צדקת רבנו, שכל התובעת ג”פ בימינו וטוענת מאיס עלאי, לא רק עיניה נתנה באחר אלא היא כבר בחיק האחר או האחרים וחביטא קמייהו כמברכתא, ולפיכך מצוה לכוף את הבעל המתעקש בכל כפיה אפשרית כדי להפריד בין הדבקים ויפה שעה אחת קודם.

However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.

I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces.

I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have.

Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. InKeneset ha-Gedolah, Even ha- Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes:

ובעל משפט צדק ח”א סי’ נ”ט כתב דאפי’ רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי’ לו’ לו שחייב להוציא

Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so. And if we are wrong, and he really does kill her? I guess the reply would be that this isn’t anything we could have anticipated even if we saw the knife in his hand. This example shows how some poskim from prior generations made it extremely difficult for women to receive a divorce.

Let me give a few examples from more recent years. In 1967 the Supreme Rabbinic Court, consisting of Rabbis Yitzhak Nissim, Betzalel Zolty, and Yosef Shalom Elyashiv, concluded as follows.[10]

כשם שאין בעלכופין לגרש את אשתו בגלל טענת מאיס עלי, כך אין מחייביןאת הבעל לגרש עקב טענה זו

This approach, which repeats itself again and again, completely undermines the assumption so many have that a man is obligated to give his wife a get when she no longer wishes to be married to him.

Look again at the conclusion of Rabbis Nissim, Zolty and Elyashiv. It couldn’t be any clearer that this woman is not an agunah. Their conclusion also contradicts the definition of agunah provided by JOFA (see here p. 22). AGUNAH (pl: AGUNOT) A married woman who may not remarry because the death of her husband has not been verified or because (for whatever reason) she is unable to obtain a get from her husband.

It is simply not true that a woman unable to obtain a get from her husband “for whatever reason” is an agunah. I wish it were different, and I wish Maimonides’ ruling carried the day. But that is not the case, which means that an agunah has to be defined as one whose husband refuses to issue aget after ordered to do so by a beit din.

R. Zvi Hirsch Grodzinski, perhaps the leading talmudist and halakhist in the United States in the early years of the twentieth century, discusses a case where a woman committed adultery (or only claimed to have done so; the matter is not clear, but for this post I am assuming she actually did commit adultery). She then wished to get divorced from her husband.[11] She must have had some connection to Judaism as she requested that her husband give her a get. I think most people would assume that in such a case, where the woman will no longer be living with her husband, that it is essential that the husband give her a get so that she is no longer committing adultery. With the get she can repent and move on with her life. Hopefully, she will be able to find another husband and live as pious Jew.

Yet just because most of us might intuitively feel this way, this does not mean all halakhists have to agree. R. Grodzinski concludes that the husband cannot be forced to give the get. To use today’s popular language, this meant that he was allowed to keep her as an agunah for the rest of her life. Of course, R. Grodzinski would deny that the woman was an agunah. Despite the woman’s adultery, I think most people will still be troubled reading the following words from R. Grodzinski, from which we see that he saw no problem in condemning her to live the rest of her life without receiving a get.

כ”ש בנ”ד שנאסרה עליו ע”י זנות דאין כופין אותו לגרשה בגט, כיון שהיא נתנה אצבע בין שיניה, וגרמה לעצמה במעשיה הרעים והוא לא עשה און, ולמה נכוף אותו ליתן לה גט, לא תבעל לו ותוצרר אלמנות חיות כל ימיה, הלא אינה מצווה על פו”ר, וכי בשביל שהיא הולכת אחרי שרירות לבה וזנתה תחתיו נכוף אותו לגרשה

I don’t think you need to be a member of JOFA or Open Orthodox to be upset by what R. Grodzinski writes, as it probably closed off any chance of repentance on the part of the woman. He also views the withholding of the get as a suitable form of punishment for the woman. Not being obligated in the commandment to procreate, she can be kept a “living widow”.[12]

For another noteworthy example, here is the conclusion of a 1953 Jerusalem Beit Din decision, by the dayanim R. Jacob Ades, R. Bezalel Zolty, and R. Yosef Shalom Elyashiv:[13]

החשש כי האשה תצא לתרבות רעה אם הבעל לא יתן לה גט, אינו משמש יסוד לחייב את הבעל לתת לה גט

This decision from the Jerusalem Beit Din has another passage that is very troubling to me. I find it hard to believe that any Modern Orthodox beit din could conclude in this fashion, and it is precisely attitudes such as this that convinced women that the rabbinic courts in Israel were stacked against them.[14]

הא דברועה זונות יש לחייבו לתת לה גט, היינו היכא שהאשה היתה רוצה לחיות אתו, אלמלא שהבעל הוא רועה זונות, במקרה זה יש מקום לחייבו לגרשה כשהיא דורשת גט, משום שרועה זונות יאבד הון וסופו לא יהיה בידו לפרנסה, וגם משום שעצם היותו רועה זונות נוגע לה שהוא גורע מעונתה, וגם יש חשש של סכנה לחיות אתו, אבל במקרה שהאשה מורדת בבעלה ולא רוצה לחיות אתו בגלל איזו סבה שהיא, ואחרי זה נהיה הבעל רועה זונות אף שיש עבירה בידו, מכל מקום אין לחייבו משום זה לתת לה גט, כיון שהיא מורדת בו הרי הוא פטור ממזונותיה ושוב אין החשש שרועה זונות יאבד הון ולא יהיה בידו לפרנסה, וגם אין הטעם שברועה זונות הדבר נוגע לה שהוא גורע מעונתה וגם יש חשש סכנה לחיות אתו, דהלא היא מורדת בו ולא רוצה בכלל לחיות אתו.

What is a woman supposed to do in a case like this? After learning that her husband frequented prostitutes she had even more reason not to want to return to him, and yet the beit din held that in such a case the husband did not have to give her a get since her initial reason for wanting to be divorced was something else. Again we see that a man can, if he chooses, prevent his wife from being free.

Also of interest are the three reasons the court suggests why a woman would not be happy if her husband was going to prostitutes: 1. He will be spending their money, 2. He will be using them as his sexual outlet and will not want to sleep with his wife, 3. He could pass on a disease to her.

While it is true that a wife’s anger will include reasons 1 and 3, these are not the main reasons she will be upset. For example, the husband could be as rich as a former New York governor and have used protection, yet the wife will still be devastated for the simple reason that his actions were a terrible breach of trust. More than anything else, modern marriages are based on trust. As for reason 2, it is hard to imagine that there is any modern woman who, if she discovered that her husband was going to prostitutes, would want to be divorced because of this reason.

Where did the dayanim get these three reasons, as surprisingly, they don’t tell us? I found reason 1 cited in מצאתי .the Beit Yosef, Even ha-Ezer 154 (towards the end, s.v It originates in R. Alexander Susslein .(כתוב בשם ספר אגודה Ha-Kohen’s Sefer Agudah: Yevamot, no. 77.[15] Reasons 2 and 3 are found in the Arukh ha-Shulhan, Even ha-Ezer 154:16.[16]

These reasons undoubtedly reflect a different understanding of marriage, one which does not see the modern romantic notion of trust as the centerpiece of a marriage. Since people’s psychology has changed over the centuries, I don’t think that the reasons offered by medieval authorities operating in a completely different environment can determine what modern women will regard as “deal-breakers” when it comes to marriage. If a modern woman has different expectations of what marriage is than what people had years ago, I would think that this must be taken into account by a beit din in determining what situations require ordering the husband to give a get.

In fact, Sefer Agudah cites another reason why the court compels a husband visiting prostitutes to divorce his wife.

פעם אחת בא מעשה לידי לאה טוענת על ראובן שהיה רועה זונות והוא כופר. ופסקתי שאם תביא עדים שהוא כן יוציא ויתן כתובה. איבעית אימא קרא, איבעית אימא גמרא, איבעית אימא סברא . . . ואיבעית אימא סברא דגרע מכל הנהו דפרק המדיר.

In the final words just quoted (and underlined),Sefer Agudah is referring to this Mishnah inKetubot 77a:

ואלו שכופין אותו להוציא מוכה שחין ובעל פוליפוס והמקמץ והמצרף נחושת והבורסי בין שהיו עד שלא נישאו ובין משנישאו נולדו ועל כולן אמר רבי מאיר אע”פ שהתנה עמה יכולה היא שתאמר סבורה הייתי שאני יכולה לקבל ועכשיו איני יכולה לקבל.

The following are compelled to divorce [their wives]: A man who is afflicted with boils, or has a polypus, or gathers [objectionable matter] or is a coppersmith or a tanner, whether they were [in such conditions or positions] before they married or whether they arose after they had married and concerning all these R. Meir said: Although the man made a condition with her [that she acquiesces in his defects] she may nevertheless plead, “I thought I could endure him, but now I cannot endure him.”

This final reason given by Sefer Agudah is based on sevara and not on a rabbinic text.[17] I don’t know why it was not cited by the dayanim, but it supports the point I made that the beit din need not be bound by examples given in the Talmud or other rabbinic sources. Rather, it can evaluate the current psychology of women and how they regard marriage.

For another example of how different current understandings are from what they used to be, look at this responsum of R. Zvi Hirsch Ashkenazi, Hakham Zvi, no. 133.

It deals with a man who committed adultery with a married woman, and his wife therefore wishes to divorce him. In such a case, contemporary Orthodox Jews of all persuasions would agree with the general view in society, that if the wife can forgive her husband and remain married, then it is no one else’s business what goes on in their lives. However, contemporary Orthodox Jews would also agree that if the betrayal is so devastating that the wife will never be able to trust her husband again, and she wants a divorce, then the husband should be required to give the divorce. To paraphrase what the Sefer Agudah said, this is certainly on the level of the things for which the Mishnah in Ketubot requires a husband to grant his wife if she requests if.

Yet the Hakham Zvi refuses to require the man to issue the divorce. One of the things he says is that even theSefer Agudah would agree that in order to force a divorce the husband has to have been given prior warning not to visit prostitutes. In the case the Hakham Zvi was asked about, he says that there is another reason not to require the get, and that is that the man claims that he wishes to repent. So here we have a case where a man commits adultery, his wife cannot accept this and requests a divorce, and the man refuses and says he will repent. Today people would say that this woman is an agunah, as she is trapped in a marriage she doesn’t want to be in with a husband who cheated on her. Yet the Hakham Zvi rules in favor of the man that no divorce is required.

One can find numerous examples where poskim rule similarly. Here, for instance, is a decision of the Tel Aviv Beit Din.[18] I think people will be shocked to learn that a woman who wants to divorce her husband because he went to a prostitute is being told by the beit din that she must stay with him if he promises not to do it again. But this only illustrates that the so-called agunah problem is inherent to the halakhic system, which according to the dominant interpretation does not recognize that a woman should be able to exit a marriage if she feels she can no longer live with her husband. There are literally hundreds of examples in the responsa literature and beit din proceedings where a woman is told that even though she wants to be divorced, there is no obligation on her husband to give her a get. Isn’t this where poskim must put their efforts to see if changes can be made? What a woman will tolerate today is not necessarily the same thing as what the Sages and earlier poskim assumed, and this is a point that was already made by halakhic authorities in prior generations.[19]

To further illustrate my point, R. Joseph Karo states that even if a husband is beating his wife he can’t be forced to divorce her.[20] She will obviously live apart from him, but R. Karo does not accept the view of some earlier authorities that the husband can be forced to issue her a divorce. This means that the woman is what we would today call an agunah, but the problem we are facing is not just about an evil man but arises from the halakhah itself. As we have just seen, according to R. Karo it is the halakhah that prevents us from forcing a husband to divorce his wife, even if he beats her.

In this case, R. Moses Isserles strongly rejects R. Karo’s opinion and states that we can force a man beating his wife to divorce her.[21] The passage I have underlined is of particular significance regarding the point I made previously.[22]

ואיני רואה בזב דבריו כלל דכדאי הם הגאונים לסמוך עליהם כל שכן שהרמב”ן ומהר”מ הסכימו בתשובותיהן בענין הכאת אשתו והביאו ראיות ברורות לדבריהם גם הסברא מסכמת עמהן ומה שלא הוזכרו בדברי הפוסקים אפשר לומר שהיה פשוט בעיניהם וקל וחומר הוא מהאומר איני זן וכו’

In deciding which opinion to follow, that of R. Karo or R. Isserles, I think that a point made by R. Jehiel Jacob Weinberg is relevant. He states that if there is a dispute among earlier halakhic authorities, we should reject the view that will bring the Torah into disrepute in people’s eyes.[23]

ואגלה להדר”ג [הגרא”י אונטרמן] מה שבלבי: שמקום שיש מחלוקת הראשונים צריכים הרבנים להכריע נגד אותה הדעה, שהיא רחוקה מדעת הבריות וגורמת לזלזול וללעג נגד תוה”ק Can anyone deny that in the dispute between R. Karo and R. Isserles, the sort of consideration R. Weinberg was referring to would force dayanim, even Sephardic dayanim, to decide in accord with R. Isserles? In today’s day and age, it would be simply incomprehensible to people that a man who regularly beats his wife cannot be forced to give her a get.

There is another noteworthy decision given by the Supreme Rabbinic Court, again consisting of Rabbis Yitzhak Nissim, Bezalel Zolty, and Yosef Shalom Elyashiv.[24] The case was that a married man left his first wife and married another wife. The problem was that he never divorced the first wife, making him a bigamist. Furthermore, he refused to give his first wife a get. The woman therefore turned to the Beit Din asking them to force him to do so. The conclusion of the Beit Din was that while in this case, as opposed to the ones we saw earlier, the man was indeed obligated to divorce his wife, nevertheless the Beit Din could not force him to do so. Since the Beit Din ruled that he was obligated to give the get, his not doing so would make the woman an agunah in the eyes of the court. But since the Beit Din felt that it was unable to force the man to issue the get, who knows how long (maybe her entire life) the woman was forced to remain an agunah. Unfortunately for the woman, R. Shaul Yisraeli, also a member of the Supreme Rabbinic Court, was not one of the dayanim in this case, since he wrote to R. Elyashiv arguing that the court should indeed force the husband to give the get.[25]

Since I mentioned R. Weinberg earlier in this post, take a look at this responsum from Seridei Esh, vol. 3, no. 29.

R. Weinberg was asked about a man who was sent to jail for sexual abuse of young girls. Understandably, his wife wanted a divorce. The rabbi didn’t know what to do and therefore wrote to R. Weinberg. He mentions that he never had to deal with a case of sexual abuse and doesn’t know how to relate to it from a Jewish law perspective. He also assumes that there was no actual sexual relations but only fondling.

R. Weinberg, relying on the Hakham Zvi, states that the husband cannot be forced to divorce his wife, since he was never warned and there was no testimony in a beit din. He also says that one cannot rely on testimony given in a secular court, and makes the valid point that during that time, the Nazi era, there was a great deal of anti-Semitism and pleasure in making the Jews look bad.

None of this could have been of much comfort to the woman. We have no idea about her relationship with her husband. She might have already suspected him of being a pervert, or when he was arrested it might have clarified certain things that she wondered about. She might have confronted him after the arrest and seeing his reaction to her questions she knew he was guilty. Whatever the case, she no longer wished to remain married to someone she believed to be a sexual abuser. R. Weinberg was as open-minded a posek as one could imagine, yet even he was of the opinion that the husband could not be compelled to divorce his wife.

Today, if someone accused of sexual abuse refused to issue his wife a get, rabbis in the United States would call for protests in front of his house. Yet R. Weinberg does not see this as warranted. I think one of the most difficult things for people to grasp in his responsum, and in that of the Hakham Zvi, is the need for the husband to be warned. We are not talking about sentencing him in a beit din, where warning is a technical requirement, but whether or not the woman wants to live with him any more. In the two cases we have just seen, the issues of concern to the wives are one man’s visits to a prostitute and the other’s sexual abuse of children. Neither wife cared if her husband was “warned” in beit din since the offense is the same to her either before or after the “warning”.

Nevertheless, the notion that the husband has to be warned is found elsewhere as well. For example, regarding a husband who beats his wife, R. Moses Isserles, Shulhan Arukh, Even ha- Ezer 154:3, states that according to some such a man can be forced to give his wife a get. The Vilna Gaon explains, in words that lead to a liberal understanding of when a man can be forced to divorce his wife:

יש אומרים שכופין כו’: שאפילו על שאר דברים שאין לה צער כל כך כגון המדיר שלא תלך לבית אביה או לבית האבל כו’ [כתובות עא ע”ב] או שלא תשאל נפה וכברה כו’ [שם, עב ע”א], כל שכן במצערה בגופה. תשובת הרמב”ן סימן ק”ב.

Yet after stating that some say that a man who beats his wife can be forced to divorce her (an opinion he himself held, as we saw earlier in the quotation from Darkhei Moshe [26]), R. ובלבד שמתרין :Isserles adds that a prior warning is required .בו תחילה פעם אחת או שתים

Now that we have seen some of the real halakhic difficulties that stand at the center of the so-called agunah problem, in the next post I will offer a simple suggestion that I think can solve at least some of the cases.

2. Someone who read my earlier posts that discussed various punishments ordered by Jewish courts asked me about a quotation from R. Shlomo Yaffe, dean of the Institute of American and Talmudic Law, which offers a different perspective. See here. Before even getting to the particular quotation, let me say that I have real problems with some of what was said (or at least reported to have been said) at the recent conference on Jewish law reported on the link just given. For example, Rabbi Yaffe was asked, “If there were no First Amendment would we still have the freedom of speech?” The only correct answer has to be that without the First Amendment our freedom of speech will be endangered, and it could even become illegal to speak publicly about certain laws in the Torah (e.g., homosexuality), as this could be categorized as “hate speech”. But instead, Rabbi Yaffe replied: “Absolutely . . . We know that God had freedom of speech. He spoke and the world came into being. . . . We have free will and the ability to express ourselves.” How does this bit of darshanut answer a serious question about the importance of the First Amendment?

Professor Jeremy Waldron stated at the conference, “People have a right to be protected from vicious defamations upon them on account of their religion. So if somebody says, ‘All Muslims are terrorists,’ we believe [Muslims] have a right to be protected against that defamation.”[27] This is exactly why we need a First Amendment and why free speech must be protected. If it became illegal for some idiot to say, “All Muslims are terrorists,” then the next thing would be punishing people for saying that “Muslims are more likely to support terrorism than adherents of other religions,” and bans on the drawing of Muhammad’s picture and insulting the Prophet would not be far behind because after all, these are viewed by Muslims as defamations of their religion. (Muslims in Europe have already demanded that those insulting Muhammad not be protected by free speech laws.)

In other words, giving an inch in this matter would open up the floodgates and would be the end of free speech in America. As I already mentioned, this would also be a big problem for the traditional Jewish community, since it is only the constitutional guarantee of free speech that prevents “progressive” groups from legislating against “hate speech” found in religious communities. Based on the quote from Waldron, I would assume that he is a supporter of the “speech codes” that at one time were so popular at universities, until people began to realize the stifling effect they actually had on free speech. For those who are having trouble remembering what they learnt so many years ago: The First Amendment was created precisely in order to protect unpopular speech.

The particular quote from Rabbi Yaffe that I was asked about is the following: “In general, Jewish law and tradition are extremely opposed to incarceration as fundamentally immoral unless it is to protect someone from inflicting real harm on another human being.” What this means is that incarceration is only designed to protect the innocent, but Jewish law and tradition does not recognize incarceration as a means of punishment. This statement is simply false. Let us remember that incarceration must be seen as an improvement over the physical punishments I have detailed in earlier posts. Given the choice between lashing people and mutilating them, certainly incarceration is preferable. (See also what I wrote here.) As for incarceration itself, the Rambam states as follows in Mishneh Torah, Hilkhot Sanhedrin 24:9: יש לכפות ידיים ורגליים ולאסור בבית האסורין

What this means is that a judge may bind a prisoner’s hands and feet and may imprison him. Punishment is one of the reasons that this is done, as Maimonides explains ibid. 24:10. Although there is nothing in the Torah about imprisonment, it was used as a punishment throughout Jewish history.[28] Simhah Assaf, who writes a good deal about Jewish prisons inHa- Onshin Aharei Hatimat ha-Talmud, pp. 25ff, informs us that such prisons were found in Babylonia, Spain, Italy, Moravia, Poland, and Lithuania. One can also add Hungary and Bohemia to this list. According to Assaf, it is only in France and Germany that we don’t find Jewish prisons.[29] In addition to actual prisons, we also find something else:

A symbolic imprisonment, which served as a means for expiation as well as one of humiliation and embarrassment, consisted of shackling a suspected murderer, for example, during a service. He was to have his hands as well as his body chained. This was apparently a tradition received from R. Judah the Pious.[30]

[1] See R. J. David Bleich’s discussion getof zikui in Tradition 35:4 (2001), available here. See also the responsum of R. Solomon David Kahane in Sefer ha-Yovel Karnot Tzaddik (Kefar Habad, 1992), pp. 253ff. For the Safed beit din’s decision to issue a get to a woman whose husband was in a vegetative state, see here, and see the beit din’s defense of its decision here. An entire book was published in opposition to this decision; see here. [2] Vol. 2, p. 236. [3] Vol. 3, p. xi. [4] See Sinai 60 (1967), p. 319. [5] See Havlin in Ha-Ma’yan (Tevet 5728), pp. 33-34 n. 14. [6] In previous posts I have cited numerous examples that show that the notion that men and women are equal is also a modern idea. The standard traditional view was that a woman is secondary to her husband and under his authority. I mention this here only because I recently found a very interesting formulation that is relevant to what we will be discussing. In R. Hayyim Aryeh Leib ben Joseph Hayyim,Sha’ar Bat Rabim (Warsaw, 1900), parashat Tazria, p. 24a-b, he explains why a woman, who is “enslaved to her husband as a slave,” does not choose to run away like other slaves do. והוא ימשול בך: לעבוד עבודתו. ואעפ”י שהיא משועבדת לבעל כעבד ודרך העבד לברוח מאדונו כדי שלא להשתעבד מ”מ גזר ה’ עלי’ שתחפוץ להשתעבד לבעלה כשפחה מדה כנגד מדה כי חוה נתנה גם לבעלה ויאכל במצותה לכן נענשה שלא תהיה היא עוד מצוה עליו אלא הוא יצוה עלי’ כל רצונו כן כתב רמב”ן. [7] Mishneh Torah, Hilkhot Ishut 14:8. [8] Sefer Nashim, vol. 1, pp. 306-307. [9] See Shulhan Arukh, Even ha-Ezer 77:2. [10] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 7, p. 3 (emphasis in original). [11] Ha-Measef 9 (5664), nos. 1, 24. [12] Ha-Measef 9 (5664), p. 1b. Many of his words are taken from She’elot u-Teshuvot ha-Rosh 43:8. [13] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 1, p. 139. R. Eliezer Waldenberg had a different approach. See Tzitz Eliezer, vol. 4, p. 109: מכל האמור יש כר נרחב לדון בדבר כפיה לגרש במקום שישנו בטענת המאיס עלי אמתלא מבוררת, ובית הדין רואה צורך השעה לכוף את הבעל לגרש כדי שלא תצא האשה לתרבות רעה. [14] Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 1, p. 141. A decision directly opposed to this was given in 1979 by the Supreme Rabbinical Court. The dayanim were R. Mordechai Eliyahu, R. Joseph Kafih, and R. Shaul Yisraeli. See Piskei Din shel Batei Din ha-Rabaniyim be-Yisrael, vol. 12, p. 25: אפילו אם נעשה “רועה זונות” לאחר שאשתו עזבה אותו אין לחייבה לחזור ולחיות אמו. [15] The Sefer Agudah’s ruling is cited in R. Moses Isserles, Shulhan Arukh, Even ha-Ezer 154:1. However, R. Isserles does not provide the Sefer Agudah’s reason, only his conclusion that a man who visits prostitutes can be forced to divorce his wife. [16] It appears that the Arukh ha-Shulhan derived reason 2 from a formulation in the Sefer Agudah. However, R. Yosef Goldberg argues that the Arukh ha-Shulhan is mistaken and that the Sefer Agudah cannot be seen as a source for this reason. See Goldberg, “Teviat Ishah le-Hayev et Ba’alah be- Get,” Zekhor le-Avraham (2000), vol. 2, pp. 669ff. [17] See also R. Simeon ben Zemah Durah, She’elot u-Teshuvot Tashbetz, vol. 2, no. 8: ואפילו לכוף אותו להוציא יש לדון מקל וחומר דבעל פוליפוס, דהשתא מפני ריח הפה כופין, מפני צער תדיר שהוא מר ממות לא כל שכן. [18] Piskei Din shel Batei ha-Din ha-Rabaniyim be-Yisrael, vol. 8, p. 254. [19] For a detailed discussion of the matter, see R. Avishai Teherani, Amudei Mishpat, vol. 1, Even ha-Ezer, no. 12. R. Teherani’s own conclusion is as follows: המכה את אשתו, ואין סכנת נפשות לאשה, אין כופין אותו להוציא, שיש לחוש שלא נכשל בגט מעושה, אכן אם יש לאשה סכנת נפשות אמיתית, כופין אותו לגרשה בטרם יהרגנה, ויש לדיין ליתן עיניו בזה הרבה, כי כבר היו מעשים מעולם [!] ברצח האשה (emphasis added). This is hardly a position that will find a sympathetic ear among most contemporary Orthodox Jews. R. Hanan Aflalo, Asher Hanan, vols. 3-4, no. 77, adopts an entirely different tone. With regard to the matter of a woman who wants a divorce because her husband visited prostitutes, unlike the decisions already mentioned, R Aflalo shows a real understanding of how a modern woman relates to this sort of thing. He writes as follows (p. 421): מאסה בו על עצם המחשבה שגופו היה דבק בגופן של נשים אחרות במעשה הניאוף והטינוף שבו, ובכך נגעלת מעצם המחשבה לכך לחזור עמו לחיי אישות ולשלום בית. ובאמת שמילים וטענות אלו יש בהם ממש. R. Uriel Lavi, av beit din of the Safed beit din that issued the controversial get to a woman whose husband was in a vegetative state (see note 1), and who has been villified in the haredi world and through their pressure kept off the Supreme Rabbinic Court (see here), has the same sympathetic approach as R. Aflalo. See his Ateret Devorah, vol. 2, p. 644: חיוב הבעל בגט הוא מפני המאיסות שבמעשיו. אמנם בעלמא באומרת מאיס עלי אין כופין גירושין, אך כשמאיסות זו היא כה חמורה ונובעת ממעשיו הנלוזים של הבעל, ואין זו בעיה חריגה של האשה, אלא מאיסות המוכרת והמקובלת בנסיבות אלו אצל כל הנשים, יש לכפות את הבעל. It is precisely rabbis with this type of modern understanding that can provide a solution to the problem we have been discussing, as we will see in the next post. מצאתי בתשובת רבינו.Beit Yosef, Even ha-Ezer 154 end, s.v [20] שמחה [21] Darkhei Moshe, Even ha-Ezer 154:21 (The text is from the Machon Yerushalayim edition which has added material from Darkhei Moshe ha-Arokh). [22] R. Isserles also adds the following which is relevant to recent events in which a number of people were sentenced to prison for kidnapping and torturing men who refused to give a get. נראה דטוב שלא לכופו ליתן גט אלא בדרך זה להחרימו או לתופסו בידי גוים או בשוטיםשלא להכותה או שיוציא ויתן גט ובדרך זה לא מיקרי כפייה על הגט רק לקיים מה שמחוייב לעשות. [23] Kitvei ha-Gaon Rabbi Jehiel Jacob Weinberg, vol. 1, p. 60. [24] Piskei Din shel Batei ha-Din ha-Rabaniyim be- Yisrael, vol. 7, p. 65. [25] Mishpetei Shaul, no. 34 [26] For a detailed discussion regarding whether the beit din can force a wife beater to divorce his wife, see R. Isaac ben Walid, Va-Yomer Yitzhak, vol. 1, no. 135. [27] If someone said, “All NRA members are terrorists,” would Waldron think that NRA members also have a right to be protected against that defamation? And if not, why not? What possible legal distinction is there between belonging to a religion and belonging to an organization? [28] See R. Yehoshua Inbal, Torah she-Ba’al Peh (Jerusalem, 2015), p. 215. [29] Assaf, Ha-Onshin, p. 25. [30] Eric Zimmer, Harmony and Discord (New York, 1970), p. 93.

A Picture and its One Thousand Words: The Old Jewish Cemetery of Vilna Revisited*

A Picture and its One Thousand Words: The Old Jewish Cemetery of Vilna Revisited* by Shnayer Z. Leiman

A. The Photograph. Recently, I had occasion to publish the above photograph – a treasure that offers a glimpse of what the old Jewish cemetery of Vilna looked like in the inter-war period.[1] Indeed, it captures the oldest portion of the rabbinic section of the old Jewish cemetery. The purpose of this essay is to identify the persons buried here and – where possible – to reconstruct and print the epitaphs on their tombstones. Seven partially legible inscriptions can be seen by the naked eye, as one moves from left to right across the photograph. An empty frame that once held a tombstone can be seen in the center of the photograph, as well. With the aid of a magnifying glass, as well as literary evidence, we shall attempt to identify all those buried here and to restore the full texts of their epitaphs. In effect, we shall engage in a virtual tour of a Jewish cemetery that – sadly — exists today almost entirely underground. Briefly, the old Jewish cemetery was the first Jewish cemetery established in Vilna. According to Vilna Jewish tradition, it was founded in 1487. Modern scholars, based on extant documentary evidence, date the founding of the cemetery to 1593, but admit than an earlier date for its founding cannot be ruled out.[2] The cemetery, still standing today (but denuded of its tombstones), lies just north of the center of the city of Vilna, across the Neris (formerly: the Vilia) River, in the section of Vilna called Shnipishkes (Yiddish: Shnipishok). It is across the river from, and just opposite , one of Vilna’s most significant landmarks, Castle Hill with its Gediminas Tower. The cemetery was known as the Piramont[3] cemetery, also (in Yiddish) asder alter feld or der alter beys eylam [so in Lithuanian Yiddish; in Ashkenazic Yiddish: beys oylom]. It was in use from the year it was founded until 1831, when it was officially closed by the municipal authorities. Although burials no longer were possible in the old Jewish cemetery, it became a pilgrimage site, and thousands of Jews visited annually the graves of the many righteous heroes and rabbis buried there, especially the graves of the Ger Tzedek (Avraham b. Avraham, also known as Graf Potocki, d. 1749), the Gaon of Vilna (R. Eliyahu b. Shlomo, d. 1797), and the Hayye Adam (R. Avraham Danzig, d. 1820). Such visits still took place even after World War II.[4] The cemetery, more or less rectangular in shape, was spread over a narrow portion of a sloped hill, the bottom of the hill almost bordering on the Neris River.[5] The photograph captures some of the oldest mausoleums and graves at exactly that spot, i.e. at the bottom of the hill almost bordering on the Neris River. The tombstone inscriptions face north, toward the top of the hill. As one moves from left to right across the photograph, one is in effect moving uphill toward the entrance of the cemetery, a gate built into the northern portion of the cemetery fence.[6] We shall move from left to right, and begin with the first tombstone inscription. 1. R. Menahem Manes Chajes (1560-1636). R. Menahem Manes was among the earliest Chief Rabbis of Vilna. Indeed, his grave was the oldest extant grave in the Jewish cemetery, when Jewish historians first began to record its epitaphs in the nineteenth century.[7] R. Menahem Manes’ father, R. Yitzchok Chajes (d. 1615), was a prolific author who served as Chief Rabbi of Prague. Like his father, R. Menahem Manes published several works in his lifetime, ,Lublin) סליחה על שני קדושים including a dirge entitled ערב a treatise in rhyme encompassing all the laws of ;[8](1596 Lublin, 1621)[9]; and left still other) קבלת שבת entitled ,שבת ,פרשת בלק works in manuscript form (e.g., a commentary on now in the Bodleian Library at Oxford ,דרך תמימים entitled University).[10] His epitaph reads:[11] 2. R. Shaul Katzenellenbogen (ca. 1770-1825).

Son of the Chief Rabbi of Brisk, R. Yosef Katzenellenbogen,[12] R. Shaul frequented Vilna as a youth in order to converse with the Gaon of Vilna. After meeting with ראה זה רך בשנים“ :the young Shaul, the Gaon purportedly said Ultimately, R. Shaul settled in Vilna [וטעם זקנים מלא”.[13 Influenced by .מורה צדק where he served with distinction as a the Gaon’s methodology and piety, it is no coincidence that he was asked to write letters of approbation for the first printed editions of works by the Gaon[14] and by (and about) his favorite disciples, R. Shlomo Zalman[15] (d. 1788) and his brother R. Hayyim of Volozhin[16] (d. 1821). R. Shaul’s glosses on the Talmud are included in the definitive edition of the BabylonianTalmud (ed. Romm Publishing Co.: Vilna, 1880-1886). He left an indelible impression on all who knew him; and especially on his students, among them R. David Luria[17] (d. 1855) and R. Samuel Strashun[18] (d. 1872) – two of the leading rabbinic scholars of 19th century Lithuania. He was honored at his death by being buried next to some of Vilna’s greatest rabbis, despite the fact that he was one of the last rabbis buried in the old Jewish cemetery. In 1826, a kloyz was established in Vilna in his memory. Called “Reb Shaulke’s [probably pronounced: Shoelke’s or Sheyelke’s] kloyz,” it remained in continuous use until, and even during, the Holocaust.[19] The inscription that can be seen on the photograph reads:

This is simply an informational sign (almost certainly of early 20th century origin) that indicates to the visitor that R. Shaul was buried in this mausoleum. In fact, he was buried between R. Menahem Manes Chajes (d. 1636) and R. Moshe Rivkes and ancestor of the Vilna ,באר הגולה d. 1672), author of) Gaon. His tombstone inscription, not visible in the photograph, reads:[20]

3. R. Moshe, Dayyan of Vilna (ca. 1670-1740). Little is known about R. Moshe, other than – as indicated on his epitaph – he served with distinction as adayyan in Vilna.[21] Some of his Torah teachings are preserved in his Altona, 1736).[22] R. Moshe was) מצודת דוד ,son R. David’s being an חר”ז ”,popularly known as “R. Moshe Charaz .son-in-law of R. Zalkind.” R“ חתן ר’ זאלקינד abbreviation for Zalkind should probably be identified with R. Shlomo Zalkind b. Barukh, who lived in the second half of the 17th century, and was a respected lay leader of Vilna’s Jewish community.[23] R. Moshe’s epitaph stands outside a second mausoleum, with its own entrance, separate from the first mausoleum (where R. Menahem Manes Chajes, R. Shaul Katzenellenbogen, and R. Moshe Rivkes were buried). The epitaph reads:[24]

4. R. Hillel b. Yonah (d. 1706). The empty frame in the third mausoleum from the left held a wooden tombstone that existed into the 20th century.[25] Before it was removed for repair, it was photographed in situ, and the photograph was preserved at the Ansky Museum in Vilna. The photograph was published just prior to the onset of World War II.[26] The epitaph on the tombstone commemorates the life and death of R. Hillel b. Yonah, Chief Rabbi of Vilna, and his wife Rachel (d. 1710). They were the only occupants of the third mausoleum. R. Hillel served as Chief Rabbi of Chelm prior to his appointment as Chief Rabbi of Vilna in 1688. Some of his Torah teachings are preserved in R. David b. R. Altona, 1736).[27] The joint epitaph) מצודת דוד Moshe’s reads:[28]

5. R. Moshe Darshan (d. 1726). R. Moshe Darshan was born in Vilna in 1641. His father, R. בית Hillel b. Naftali Hertz, was the celebrated author of on Shulhan Arukh Yoeh De’ah and Even ha-Ezer), who served) הלל on the rabbinic court of R. Moshe b. Yitzchok Yehuda Lima of (on Shulhan Arukh Even ha-Ezer חלקת מחוקק Vilna (author of from 1651-1666, and later served as Chief Rabbi of Altona- ראש בית Hamburg, and then Zolkiev.[29] R. Moshe was appointed of Vilna and served in that capacity until his דרשן and דין death. His epitaph reads:[30] 6. R. Yaakov Kahana (d. 1826).[31]

R. Yaakov b. R. Avraham Kahana, a disciple of the Vilna Gaon, was the son-in-law of R. Yissakhar Ber (d. 1807), a brother of the Vilna Gaon. Supported regally by his father-in-law, R. Yaakov suddenly found himself without support upon the death of his father-in-law. The Vilna kehilla immediately appointed him trustee of its various charities, in order to provide him with a dignified income, while enabling him to continue his pursuit of Torah study. R. Yaakov authored a classic Lemberg, 1863 and later) גאון יעקב ,commentary on B. Eruvin editions).[32] His epitaph reads:[33] 7. R. Eliyahu Hasid (d. 1710).

R. Eliyahu was the son of R. Moshe b. David Kramer, who served as Chief Rabbi of Vilna from 1673 to 1687.[34] R. Eliyahu and also as צדקה גדולה served as an administrator of Vilna’s a dayyan. He was a great-grandfather of the Vilna Gaon, and the Gaon was named after him.[35] The epitaph reads:[36]

8. R. Yosef b. Elyah (d. 1718). in Vilna about whom (ראש, אלוף, מנהיג) A communal leader little else is known.[37] That he was buried in proximity to R. Eliyahu Hasid (d. 1710), and that at a later date R. Moshe Darshan (d. 1726) was buried in proximity to him, is sufficient proof of his prominence, perhaps in wisdom and certainly in wealth. His epitaph reads:[38] ————————- B. A Visit to the Old Jewish Cemetery in 1940. Known affectionately as “Reb Dovid,” Rabbi Meshulam Dovid Soloveitchik is currently Rosh Yeshiva of the Brisk Yeshiva in the Givat Moshe (also called: Gush Shemonim) section of Jerusalem. A descendant of R. Hayyim of Volozhin (d. 1821), and a scion of the Soloveitchik dynasty – his grandfather was R. Hayyim Soloveitchik (d. 1918), Rosh Yeshiva of Volozhin and Chief Rabbi of Brisk; and his father was R. Yitzchok Zev Soloveitchik (d. 1959), last Chief Rabbi of Brisk, and founder of the Brisk dynasty in Jerusalem) – he is a leader of the Haredi community in Israel.

A still active nonagenarian, he was born circa 1923. Upon the outbreak of World War II, he fled from Brisk and made his way to Vilna, which – largely due to the Molotov-Ribbentrop Pact of August 23, 1939, and Stalin’s subsequent decision to hand Vilna over to Lithuania – became the newly recognized capital of Independent Lithuania. Reb Dovid, a teenager at the time, resided in Vilna from October 22, 1939 through January 19, 1941, when together with his father (and other members of the family), he embarked on the arduous and dangerous journey that would bring him to the land of Israel, where the family ultimately settled.[39] Some 15 volumes of Reb Dovid’s teachings have שיעורי רבנו משולם דוד :appeared in print, many under the title These are transcriptions of his lectures as recorded by .הלוי his students, with focus primarily on Torah and Talmud commentary. One of the volumes, however, includes a riveting account – in R. Dovid’s own words – of how he managed to survive the Holocaust. The memoir includes a brief description of a visit he made to the old Jewish cemetery in Vilna in 1940.[40] The passage reads:[41] “When in Vilna, I went several times to visit the cemetery where the Vilna Gaon was buried, but it was closed. The gate was kept locked because burials no longer took place in the old Jewish cemetery, which was inside the city limits. Burials now took place in another cemetery [Zaretcha] which was outside the city limits.[42] Moreover, the caretaker who had the keys [to the old Jewish cemetery] lived far from the cemetery. Once, however, I came to the cemetery and found the gate open and went in to visit the Vilna Gaon’s grave. On my way to the grave, I passed an ancient tombstone with the inscribed on its epitaph.[43] I could not ’משיח ה words understand what this signified and who was buried there.[44] From there I reached the Vilna Gaon’s grave, and nearby, the grave of R. Avraham the Ger Tzedek. (At some later date, I chanced upon a pamphlet which contained a eulogy by R. Shaul Katzenellenbogen,[45] of blessed memory, over the author of Ha-Pardes.[46] In this pamphlet about the author of Ha- Pardes, it is stated that when he died a search was made in the old Jewish cemetery for a place where he could be buried. One empty plot was found, to the right of which was buried [R. Moshe Rivkes] the author of Be’er Ha-Golah, and to the left of which was buried Since no one had been buried in the .’משיח ה R. Manes empty plot next to these rabbis for some 85 years,[47] a rabbinic court was convened to decide whether the plot could be used now for the author ofHa-Pardes . The decision was that he should be buried between the two rabbis. They explained that it was a special privilege for the author of Ha-Pardes to be buried next to these righteous persons, and went on to describe the It seems .’משיח ה righteousness and piety of R. Manes likely that this was the tombstone I saw with the ”.on its epitaph ’משיח ה words

This delightful account offers important testimony regarding what a living witness observed during a visit to the old Jewish cemetery in Vilna in 1940. On his way to the Vilna משיח Gaon’s grave, R. Dovid saw a tombstone with the words inscribed on its epitaph. The reference, of course, is to ’ה the grave of R. Menahem Manes Chajes (see above, epitaph 1). It is indeed nearby to the Gaon’s mausoleum, and one could easily stop to see it on the way to the Gaon’s grave. The alert reader will surely wonder why in the photograph taken in the inter-war period, which includes the epitaph of R. Menahem whereas ,’משיח ה Manes Chajes, one cannot make out the words R. Dovid testifies that in 1940 it was precisely those words that caught his attention. The answer, I believe, is provided by another photograph of R. Menachem Manes Chajes’ epitaph taken in the summer of 1936.[48] משיח It too, at first glance, seems to have the words erased. But if one examines the photograph closely, one can ’ה The white paint that once covered .’משיח ה make out the words these etched letters has been chipped off. The inter-war photograph, a “group” photograph taken from a distance, could not capture the etched letters that now appeared as black on black. The naked eye of a human being, however, could pick up So too, a close up .’משיח ה the etched stone letters that read photograph of the Chajes epitaph alone, taken in 1936. R. Dovid adds that, subsequently, he chanced upon a pamphlet that helped him identify the epitaph he had seen. The pamphlet contained a eulogy by R. Shaul Katzenellenbogen over the author of Ha-Pardes, who apparently died in Vilna. Initially, an appropriate burial place could not be found for him in the old Jewish cemetery. But after much search, an and [R. Moshe ’משיח ה empty plot was found between R. Manes Rivkes,] the author of Be’er Ha-Golah. Since no one had been buried in proximity to these rabbis for some 85 years, a rabbinical court had to convene in order to decide the issue. The ruling was in favor of the burial, and special mention was which clearly ,’משיח ה made of the piety of R. Manes identified the epitaph that R. Dovid had seen. Sadly, I have not succeeded in locating such a pamphlet. If indeed R. Dovid saw such a pamphlet, he cannot be faulted for summarizing its content. It certainly enabled him to identify the epitaph as belonging to the tombstone of R. Menahem Manes Chajes. But problems abound. R. Shaul Katzenellenbogen (see above, epitaph 2) died in 1825. He wrote no pamphlets and published no eulogies. The author ofHa- Pardes was R. Aryeh Leib Epstein, chief Rabbi of Koenigsberg (today: Kaliningrad).[49] He died in 1775 and was buried in Koenigsberg.[50] Thus, R. Shaul Katzenellenbogen, five years old at the time, could not have published a eulogy over him. In fact, it was R. Shaul Katzenellenbogen (as described above in epitaph 2) – and not the author of Ha-Pardes – who was buried between R. Menahem Manes Chajes and R. Moshe Rivkes. One suspects that the pamphlet R. Dovid chanced Vilna and) גבעת שאול upon was R. Zvi Hirsch Katzenellenbogen’s Grodno, 1825). The author, a devoted disciple of R. Shaul,[51] published a eulogy upon the death of his teacher. He writes:[52] “On the day of his [R. Shaul Katzenellenbogen’s] burial, an oracle was heard – a voice without pause[53] – that an empty plot had been found between R. Moshe Rivkes, author of Be’er Ha-Golah and the Gaon R. Manes Chajes already ,’משיח ה who was depicted on his tombstone as) so in the early generations, in the year [5]386 [= 1626],[54] even aside from the seven virtues listed by the Sages that characterize all great individuals[55]). In that section of the cemetery, the gravediggers did not dare to dig a grave during the last 85 years, for they feared for their lives. For that section of the cemetery was filled with holy and pious Jews.[56] But due to an agreement of the Moreh Zedek’s of our community, they began digging and found an empty plot waiting for this righteous Rabbi’s remains since the week of Creation.

Here – and apparently in no other pamphlet – we have all the basic elements in R. Dovid’s account, with one glaring exception. Nothing is mentioned about the author of Ha-Pardes, R. Aryeh Leib Epstein. As indicated above, the author of Ha-Pardes in any event had nothing to do with a burial in Vilna. He lived at the wrong time (when empty plots were still available throughout the old Jewish cemetery) and died and was buried in the wrong place (in Koenigsberg). It is possible that we have in R. Dovid’s account a conflation of .Aside from R .גבעת שאול two unrelated pamphlets, each named cited above), a) גבעת שאול Zvi Hirsch Katzenellenbogen’s pamphlet with the exact same title, and also offering a eulogy, was authored by R. Shemariah Yosef Karelitz (d. 1917).[57] Warsaw, 1892), was a eulogy over) גבעת שאול ,The pamphlet Karelitz’ father-in-law, whose name also happened to be R. Shaul Katzenellenbogen (1828-1892), and who had served with distinction as rabbi of Kossovo and then Kobrin (both today in Belarus). This second R. Shaul Katzenellenbogen was a descendant of R. Aryeh Leib Epstein, author ofHa-Pardes . .R ,גבעת שאול ’Indeed, on the first title page of Karelitz Shaul Katzenellenbogen is described in bold letters as a member of the Epstein family. On the second title page, he is described in bold letters as a descendant of “R. Aryeh Leib Epstein, author of Ha-Pardes.”

[ In sum, R. Dovid’s account provides impeccable testimony that the epitaph on the tombstone of R. Menahem Manes Chajes – the oldest tombstone preserved in the old Jewish cemetery – could still be visited and read in 1940.[58] What he claims to have read in a pamphlet at some later date remains problematic and requires further investigation or, as .צריך עיון ,the later commentators would have put it * In memory of Khaykl Lunski (ca. 1881-1943), fabled librarian of the Strashun Library, who was the embodiment of the very soul of Jewish Vilna. His last essay – a study of the faded tombstone inscriptions in Vilna’s old Jewish cemetery – was written in the Vilna Jewish ghetto created by the Nazis. It perished together with him during the Holocaust. See Shmerke New York, 1947), p. 198) חורבן ווילנע ,Kaczerginski (henceforth: Kaczerginski). Cf. Hirsz Abramowicz, Profiles of a Lost World (Detroit, 1999), p. 264. Kaczerginski’s description of Lunski’s last years in the Vilna ghetto are worth citing here:

Khaykl Lunski (ca. 1881-1943) NOTES:

[1] Sid Z. Leiman, “Lithuanian Government Announces Construction of a $25,000,000 Convention Center in the Center of Vilna’s Oldest Jewish Cemetery,”The Seforim Blog, September 13, 2015, available online here, reprinted here. A similar photograph (from a slightly different angle) appears in Leyzer Ran, Jerusalem of Lithuania (New York, 1974), vol. 1, p. 100 (henceforth: Ran). Alas, its lack of clarity renders it mostly useless. ,Vilna) קורות בית-העלמין הישן בוילנה ,See Israel Klausner [2] 1935; reissued: Jerusalem, 1972), pp. 3-5 (henceforth: Klausner). Cf. Elmantas Meilus, “The History of the Old Jewish Cemetery at Šnipiškes in the Period of the Grand Duchy of Lithuania,” Lithuanian Historical Studies 12 (2007), pp. 64-67 (henceforth: Meilus). [3] It was originally called “Pioromont,” because the old Jewish cemetery was adjacent to a street and neighborhood named after Stanislav Pior, an 18th century starosta who owned land in the area (Meilus, p. 88). [4] See, e.g., the testimony of Chaim Basok, who together with Rabbi Kalman Farber visited the Vilna Gaon’s grave in the old Jewish cemetery at Piramont after Vilna was liberated by the אולקניקי ראדין ,Russian army in 1944. See Kalman Farber Jerusalem, 2007), p. 413. I have personally interviewed) וילנא several former residents of Vilna who visited the Gaon’s grave in the old Jewish cemetery at Piramont between 1945 and 1948. [5] A detailed map of the cemetery, as it appeared in 1935, is appended to Klausner. [6] For an artist’s depiction of the gate at the northern דער גר-צדק ,entrance to the cemetery, see Sholom Zelmanovitch Kovno, 1934), opposite p. 44. Notice) ווילנער גראף פאטאצקי Castle Hill at the upper right hand corner of the sketch; the and the ;והקיצו לקץ הימין ,inscription above the gate בית עולם ,inscriptions on the sides of the gate :and zydu kapines. Here is the sketch ווילנא ,(Vilna, 1860) קריה נאמנה ,See, e.g., Shmuel Yosef Fuenn [7] p. 63 (henceforth: Fuenn 1860). Cf. the second and revised Vilna, 1915), p. 67 (henceforth: Fuenn) קריה נאמנה edition of 1915). .Jerusalem, 1994), vol) אוצר ספר העברי ,Yeshayahu Vinograd [8] 2, p. 359, entry 65. מהר”ר מנחם מאניש חיות וספר קבלת “ ,See Moshe Dovid Chechik [9] .pp. 668-691 ,(שבת,” ישורון 17(2006 [10] Adolf Neubauer, Catalogue of the Hebrew Manuscripts in the Bodleian Library and in the College Libraries of Oxford (Oxford, 1886), column 59, entry 293. [11] We have attempted to transcribe the Hebrew texts exactly as they appear in the photograph. We add in brackets the reconstruction of letters and words that in all likelihood once appeared in the original texts, but were no longer visible when the photograph was taken. For other photographs יאר ,of the epitaph, see Klausner, p. 36; Zalman Szyk ;(Vilna, 1939), pp. 408 and 416 (henceforth: Szyk) ווילנע 1000 Ran, vol. 1, p. 101 ; and Reuben Selevan, A Trip to Remember: New York to Europe 1936 (New York, 2009), p. 113. The reconstructions are based mostly on the earlier transcriptions of the epitaphs in Fuenn and Klausner. Over the years, some of the epitaphs were redone, and the reconstructed texts are often faulty. Enlarged and/or dotted letters (signaling acrostics, names, or dates) were sometimes made small and the dots were omitted. Small letters were sometimes enlarged. Letters and words were added or dropped when a partially erased word could no longer be read. Thus, for example, the first three words of R. Menahem Manes Chajes’ an impossible ,פה נטמן בו :epitaph (in the photograph) read construction in Hebrew. It is obvious that one or more words are missing from the opening line of the epitaph. It is also evident the first lines form an acrostic spelling out his When the epitaphs were redone, the original .מנחם מאנש :name line divisions were not always retained. For the letters in see ,(קדרו )וש מיםbold relating to the year of his death below, note 54. Based upon the earlier transcriptions in Fuenn (Fuenn 1860, p. 63; Fuenn 1915, p. 67) and Klausner (pp. 36-39), and a measure of common sense, the original epitaph probably read:

[12] R. Shaul was also the brother of his father’s successor in the rabbinate of Brisk, R. Aryeh Leib (d. 1837). See Aryeh Leib Feinstein, .Warsaw, 1886), p. 30) עיר תהלה ,Vilna) אבל כבד ,Abraham Dov Baer ha-Kohen Lebensohn [13] .p. 2 ”,תולדות הנאון“ section ,(1825 Vilna and Grodno,1820), page following) ספרא דצניעותא See [14] title page. ,(Dyhernfurth, 1809) תולדות אדם ,See R. Yehezkel Feivel [15] vol. 2, page following title page. ,Vilna and Grodno) נפש החיים ,See R. Hayyim of Volozhin [16] 1824), page following title page. קדמות ,in R. David Luria ”,תולדות הרד”ל“ ,Samuel Luria [17] .New York, 1951), pp. 12-14) ספר הזהר ,Vilna) עיר ווילנא ,See Hillel Noah Maggid Steinschneider [18] 1900), vol. 1, p. 163. [19] See Aliza Cohen-Mushlin, Sergey Kravtsov, Vladimir Levin, Giedrė Mickūnaitė, and Jurgita Šiaučiūnaitė- Verbickienė, Synagogues in Lithuania (Vilnius, 2012), vol. 2, p. 316, item 55. Cf. Ran, vol. 1, p. 112. (The alleged photograph of R. Shaulke’s kloyz in Ran is misidentified; cf. Synagogues in Lithuania, vol. 2, p. 348, n. 248.) The address of the kloyz was Szawelska (later: Žmudskij) [Yiddish: Shavli] 5 (today: Šiauliu 2). The original building no longer stands. During the Holocaust, the kloyz continued to serve as a prayer house and it housed a Yeshiva named in memory of R. Hayyim Ozer Grodzenski (d. 1940). See Kaczerginski, p. 209; .Tel-Aviv, 1977), pp) יומן בגיטו וילנה ,cf. Zelig Kalmanovitch 83 and 100 (English edition: Zelig Kalmanovitch “A Diary of the Nazi Ghetto in Vilna,” Yivo Annual of Jewish Social Science 8[1953], pp. 30 and 47). [20] Fuenn 1860, pp. 236-238; Fuenn 1915, pp. 237-239; Klausner, p. 75. [21] See Fuenn 1860, p. 100; Fuenn 1915, p. 107; and cf. Klausner, pp. 43-44. .pp. 3a, 7a, and 31a ,מצודת דוד .See, e.g [22] [23] Fuenn 1860, p. 107, paragraph 50, number 11; Fuenn 1915, p. 113, paragraph 51, number 11. [24] The text of the epitaph was not recorded either by Fuenn or Klausner. However, it is easily restored by combining the general information they provide with the legible portions of the text in the photograph. [25] There is good reason to believe that wooden tombstones once proliferated in the old Jewish cemetery, but they did not survive the ravages of time and circumstance. See, e.g., Klausner, p. 38 (who indicates that as late as 1810 the fee for stone tombstones was twice the חברא קדישא exacted by the amount exacted for wooden tombstones) and Szyk, p. 406 (who states that the majority of tombstones in the old Jewish cemetery were made of wood but did not survive). Only two wooden tombstones (in the old Jewish cemetery) survived into the twentieth century; those of R. Hillel b. Yonah and R. Yehoshua Heschel b. Saul, who served as Chief Rabbi of Vilna from circa 1725 until his death in 1749. For photographs of R. Yehoshua Heschel’s wooden tombstone, see Klausner, p. 52; Szyk, p. 416; and Ran, vol. 1, p. 101. [26] Klausner, p. 42. Cf. Szyk, p. 416 and Ran, vol. 1, p. 100 (mostly illegible). .p. 27a ,מצודת דוד ,.See, e.g [27] [28] Fuenn 1860, pp. 97-98; Fuenn 1915, pp. 104-105. .Krakau, 1903), pp. 4-7) אוה למושב ,See Eduard Duckesz [29] [30] Fuenn 1860, pp. 99-100; Fuenn 1915, pp. 106-107; Klausner, p. 43. [31] Moving from left to right on the photograph, R. Yaakov Kahana’s tombstone (tombstone 6) appears to the right of R. Moshe Darshan’s tombstone (tombstone 5). But as one walks uphill from the bottom to the top of the cemetery, one passes the three mausoleums, then the twin gravestones of R. Yaakov Kahana and R. Eliyahu Hasid (tombstone 7), and only then the grave of R. Moshe Darshan. [32] For biographical information about R. Yaakov Kahana, see Fuenn 1860, p. 239; Fuenn 1915, pp. 239-240; and the third גאון יעקב entitled ,גאון יעקב edition of Kahana’s Jerusalem, 1997), introductory pages. See also Yaakov) השלם .p. 270, notes 7-9 ,(ספר צוף דבש,” ישורון Polskin, “1998)4 [33] Here too, the photograph presents an empty frame. Only the opening lines (i.e. the marker identifying the grave) can still be read. The original epitaph is recorded in Fuenn 1860, p 240; Fuenn 1915, pp. 240-241. Klausner (p. 53) mentions Kahana’s grave but does not record the epitaph. [34] For biographical information about R. Moshe Kramer, see Fuenn 1860, pp. 95-96; Fuenn 1915, pp. 102-103, and the references cited in the next note. סערת ,(See R. Avraham b. R. Eliyahu (the Gaon’s son [35] Vilna, 1889), p. 18. Cf. R. Yehoshua Heschel) אליהו .Vilna, 1885), p. 39, note 5) עליות אליהו ,Levin [36] The opening lines (i.e. the marker identifying the grave) are painted on the upper portion of the tombstone. The epitaph is encased below the tombstone’s upper portion. For the epitaph, see Fuenn 1860, p. 99; Fuenn 1915, pp. 105-106; and Szyk, p. 408. [37] See Fuenn 1860, p. 107; Fuenn 1915, p. 113. [38] Here too the opening lines represent the marker identifying the grave, almost certainly added at a later date. For the epitaph, see Klausner, p. 43. ,Jerusalem) שיעורי רבנו משולם דוד הלוי: דרוש ואגדה See [39] 2014), pp. 390-396. For the date when R. Dovid left Vilna הרב ,January 19, 1941), we have followed Shimon Yosef Meller) .Jerusalem, 2003), vol. 1, p. 513) מבריסק [40] No precise date is provided by R. Dovid for his visit to the old Jewish cemetery. But since he arrived in Vilna on October 22, 1939, and his first attempts to visit the cemetery were thwarted, we assume the visit took place in 1940, the only full year he spent in Vilna. It is possible, however, that the visit took place late in 1939 or early in 1941. ,(Jerusalem, 2014) שיעורי רבנו משולם דוד הלוי: דרוש ואגדה [41] pp. 393-394. The translation provided here is paraphrastic. The original Hebrew text reads:

[42] In 1940, Jewish burials were still taking place in Zaretcha, the successor cemetery to the old Jewish cemetery, which was closed in 1831. Zaretcha (today: Užupis), just outside the Old Town, and across the Vilenka River, was part of the Vilna municipality in 1940. [43] In the latter part of the 19th century and the first half of the 20th century, the northern gate was no longer used. One entered the old Jewish cemetery from a side entrance on Derewnicka Street. The path from the entrance would lead one to the section where R. Menahem Manes Chajes was buried (on the right) and to the mausoleum where the Vilna Gaon was buried (on the left). see, e.g., I Sam. 24:7 and) ’משיח ה The biblical title [44] Lam. 4:20), rendered “the Lord’s anointed one,” was usually reserved for kings and would-be messiahs (by their followers), not rabbis. R. Dovid could not identify the occupant of the מהור”ר מנחם grave, perhaps because the line with the name .simply didn’t resonate to a 17 year old yeshiva student מאנש One could claim that the line with R. Menahem Manes’ name was no longer legible in 1940 (as it was not legible in the inter- war photograph that forms the basis of this essay), but this seems highly unlikely in the light of the Selevan photograph taken in 1936. See below, note 48. The Selevan photograph is a close-up photo, and R. Dovid was standing directly in front of the same tombstone. He had no trouble reading poorly painted words. [45] See discussion below. [46] See discussion below. [47] R. Menahem Manes Chajes died in 1636; R. Moshe Rivkes died in 1672. Eighty five years after these dates would be between 1721 and 1757. Since, as we shall see, the author of Ha-Pardes died in 1775, “85 years” cannot be referring to the time that elapsed between their deaths and his. “100 years” and more would have been a more accurate estimate. See below, note 56, for a likely explanation of the “85 years.” [48] Reuben Selevan, A Trip to Remember: New York to Europe 1936 (New York, 2009), p. 113. I am deeply grateful to the author for granting me permission to scan and post the photograph (taken by his father in 1936) of R. Menahem Manes Chajes’ epitaph. [49] For a biography of R. Aryeh Leib Epstein, see R. Ephraim Vilna, 1870).Ha-Pardes , only) גבורות ארי ,Mordechai Epstein partially published, was an encyclopedic work encompassing many different genres of rabbinic literature. It includes talmudic commentary, listing and exposition of the 613 commandments, responsa literature, halakhic codes, kabbalistic teaching, sermons, eulogies, and more. The first fascicle with was published in Koenigsberg, 1759. It is ספר הפרדס the title ספרי בעל :a available today in several editions, including ,Jerusalem) ספרי הפרדס Bnei Brak, 1978), 2 vols.; and) הפרדס .Bnei Brak, 1980), pp) מעשה רב חדש vols. See also 4 ,(1983 29-80. [50] His grave is no longer standing. A sketch of his grave, as it looked in 1904, appears in Festschrift zum 200jahrigen Bestehen des israelitischen Vereins für Krankenpflege und Beerdigung Chewra Kaddischa (Koenigsberg, 1904), sketch IV. The full Hebrew epitaph is printed opposite p. XX.

[51] See the entry on him in Encyclopaedia Judaica (Jerusalem, 1973), vol. 10, column 830. .p. 23a. The translation here is paraphrastic ,גבעת שאול [52] The Hebrew text reads:

[53] See Deut. 5:19 and Rashi’s comment ad loc. [54] The year of R. Menahem Manes Chajes’ death was recorded Several of these .קדרו ושמים :on his epitaph with the words letters had protruding dots above them; the numerical value of the dotted letters yields the year of his death. At a very early period, some of the dots could no longer be read. Fuenn (1860, p. 63; 1915, p. 67) writes that he was able to make out But those letters alone .מ and , ר, ו dots above the letters could not possibly refer to his date of death. This passage indicates that in 1825, at least, the dotted letters also totaling [5]386 = 1626. On other ,ם and final קincluded grounds, we know that Chajes died in [5]396 = 1636, so it appears likely that the dotted letters also once included If not for Fuenn’s testimony, we would claim .ושמים of י the yields the (ושמים ( = [that the second word by itself, 396[5 year of Chajes’s death. Cf. Moshe Dovid Chechik (above, note 9), p. 675. [55] See M. Avot 5:7. [56] Given that this passage was written in 1825, “85 years” here refers to the period between 1740 and 1825. As the passage itself makes clear, the reference is to the many rabbinic greats who were buried in this section of the cemetery by 1740 – and not later. See above, epitaphs 1,3,4,5,7, and 8, all of which are samples that support the claim that after 1740 no rabbinic greats were buried in this section of the cemetery. Epitaphs 2 and 6 are in harmony with this claim. Epitaph 2 is the epitaph of R. Shaul Katzenellenbogen, the case at hand. Epitaph 6 (R. Yaakov Kahana) is dated 1826, a year after the case at hand and the publication of the passage in R. Zvi Hirsch .גבעת שאול Katzenellenbogen’s [57] The father of R. Avraham Yeshaya Karelitz (d. 1953), חזון איש. author of 58]] I am deeply grateful to Professor Dovid Katz of Vilnius, mentor and colleague, whose astute comments have enhanced the final version of this essay. The Yom Tov Lecture of R. Eliezer Hagadol

The Yom Tov Lecture of R. Eliezer Hagadol

By Chaim Katz, Montreal Our Rabbis taught in a baraita: R. Eliezer was sitting and lecturing about the laws of the festivals the entire day. A first group left and he said: these people own pithoi (huge storage containers). A second group left and he said: these people own amphorae (smaller storage containers). A third group left . . . A forth group left . . . A fifth group . . . When a sixth group started to leave. . . He looked towards his students and their faces turned white. He said: “my children, I wasn’t speaking to you, but to those who left, who abandon eternal life and busy themselves with mundane life.” When the students were dismissed he said to them: “Go, eat delicacies, and drink sweet drinks . . . for today is a holy day . . .” The baraita has: “who abandon eternal life and busy themselves with mundane life”. But isn’t the joy of the festival a mitzva? Rabbi Eliezer’s opinion is that joy of the festival is a reshut as was taught: Rabbi Eliezer says: A person on Yom Tov has no way except to eat and drink or to sit and study [Torah]. R. Yehoshua says: divide [the time], half for eating and drinking and half for the study hall. (Betza 15b) [1] To summarize: 1) R. Eliezer was critical of those who walked out during his lecture. 2) R. Eliezer’s criticism is in agreement with his opinion that eating on the festival is not a mitzvah. 3) However, he believes that eating is valid on a holiday and is equivalent to study on a holiday. 4) R. Eliezer encourages his students to eat delicacies and drink sweet beverages after the lecture has ended. Something doesn’t seem right. In his book on R. Eliezer ben Hyrcanus , Professor Yitzhak D Gilat, writes: From R. Eliezer’s reaction to the groups leaving the study-room, it appears that the alternative of eating and drinking is merely a hypothetical one . . . In practice he disapproves of it. [2] I think there is another way to reconcile the different aspects of the story but first some background: The definition of a derasha (the term for R. Eliezer’s lecture) is a talk (usually related to the current Sabbath or holiday) that was delivered to the general public. It had a standard form, and was delivered at a specific time. [3] An eye-witness description of a derasha from the time of the Gaonim exists: [4] The head of the yeshiva of Sura opens the lecture (with a verse) and the meturgaman stands near to him and proclaims his words to the people. When the head of the yeshiva lectures, he lectures with awe. He closes his eyes and wraps himself in his tallit, even his forehead is covered. While he lectures, no one in the congregation makes a sound or says a word. If he senses that someone in the audience is speaking, he opens his eyes and a dread of trembling falls upon the entire congregation… The derasha was delivered either at night (the eve of yontov), or in the morning (after the Torah Reading) or during the afternoon [5]. R. Eliezer probably did not lecture the דורש] ,entire day כל היום He probably lectured for only part of .[כולו the day. Parallels prove this point: 1. They said about R. Yohanan ben Zakai that he was sitting in the shade of the Temple sanctuary lecturing the entire day. (Pesahim 26a) דתניא אמרו עליו על רבן יוחנן בן זכאי שהיה יושב בצילו של היכל ודורש כל היום כולו R. Yohanan b Zakai couldn’t have sat in the shade all day unless he started on the west of the heichal and later moved himself (and the audience) to the eastern side of the heichal. It’s likely that his derasha took place in the afternoon, when shadows extend towards the east. [6] 2. They immediately sat him [Hillel] at the head and appointed him nassi over them [the Sanhedrin]. He lectured the entire day on the laws of Passover. (Pesahim 66a) מיד הושיבוהו בראש ומינוהו נשיא עליהם. והיה דורש כל היום כולו בהלכות הפסח As the Gemarah describes, they first searched for someone who could tell them what to do when the eve of Passover falls on the Sabbath. They found Hillel. They interviewed him. He presented his arguments, but his reasoning was rejected. He argued a different way and his reasoning and halakha were accepted. They offered him the leadership of the Sanhedrin and he accepted. They gathered the people and he gave the derasha. All that must have taken some time, which leads to the conclusion that he also lectured during the second part of the day. To summarize: 1) The people who attended the derasha were mainly regular shul-goers – members of the community. 2) Although R. Eliezer’s disciples where also present, the people who left the lecture before it ended were the regular shul-goers. [7] 3) R. Eliezer’s lecture took up only part of the the , דורש כל היום כולוday. Based on the expression derasha probably took place in the latter part of the afternoon, (like the derashot of his teacher and his teacher’s teacher). 4) Therefore, we can conclude that R. Eliezer expected his congregants to eat a yomtov meal and they most probably already did so before the derasha started. He holds that you can observe the holiday either by eating or by learning Torah – but neither of these activities has to last the entire day. The climax of the story, the phrase “they abandon eternal life and busy themselves with mundane life”, also needs to be explained. The sentence is used a number of times in the Talmud, but it has a bit of a different meaning each time it’s used. The primary sense is in Taanit 21a: Ilfa and R. Yohanan decide to leave the beit-ha midrash in search of a more financially secure lifestyle. At the start of their journey, an angel is heard saying, they are “abandoning eternal life and occupying themselves with mundane.” However, in our story the simple straightforward meaning doesn’t fit. How were the congregants abandoning eternal life by leaving the lecture early? They certainly heard more Torah on this day than they heard on a regular work day. And why were they more engaged in the mundane today while eating a holiday meal compared to when they eat a normal week-day meal on any other day? [8] Which leads to another point – we aren’t very familiar with R. Eliezer and his halakhic opinions. We know he had an affinity for Beit Shammai (and was maybe the last of the Beit Shammai) and we know that the sages and most of his own disciples distanced themselves from him and his teachings were not preserved. [9] R. Shaul Lieberman in his commentary to the Tosefta of Berakhot, tells us something about R. Eliezer that I believe is the key to understanding our story. We read in the Tosefta (Berakhot 4:1): לא ישתמש אדם בפניו ידיו ורגליו אלא לכבוד קונהו שנא’ (משלי טז) כל פעל ה’ למענהו One should not use his face hands or feet but in honor of his Maker as it says: Everything G-d creates, He creates for its specific purpose. (Proverbs 16:4) Professor Lieberman explains: [10] לפי פשוטו משמעו שלא ישתמש אדם בהם להנאתו גרידא אלא לכבוד שמים ואם הוא עושה כן הרי כבוד שמים מתירן לו בהנאה. A person is not to act solely for his own pleasure but is to act for the honor of heaven. When he acts this way, his intention for the sake of heaven grants him a license to enjoy the pleasure. R. Lieberman continues and demonstrates that this is the position of Hillel. However Shammai has a different approach; Shammai regards physical pleasure as something to be accepted only grudgingly or maybe even involuntarily: Everything you do should be for the sake of Heaven, like Hillel. . . . “Where are you going Hillel”, “I’m going to do a mitzvah.” “What mitzvah Hillel?” “I’m going to the bath-house.” “Is that a mitzvah”, “Yes . . . ” But Shammai wouldn’t say that, rather he would say “let us fulfill our obligation to this body of ours.” [11] Prof. Lieberman points out that R. Eliezer follows and practices the teaching of Shammai. [12] Returning now to our story: R. Eliezer however, views the yontov food like ordinary week-day food, i.e. ,שמחת יום טוב רשות and being an ordinary meal, the physical pleasure of the food or drink cannot be fully enjoyed. [13] R. Eliezer expects his community to follow his own rulings and practices. [14] He suspects that the groups who left before the lecture concluded were returning home to drink wine and enjoy tasty food for the physical pleasure of eating and drinking. They were abandoning eternal life – the life of eating purely without thinking of the physical pleasure and were engaged in the temporal life of self-indulgence. [15] Yet, R. Eliezer could still be conciliatory to his students and encourage them to eat and drink delicacies in honor of the holiday because he knew they would eat their food in a befitting way and live up to his teaching and principals. I believe it’s possible to clarify the positions of R. Eliezer based on writings of Maimonides. [16] Starting with Sefer Ha Mitzvot: ואחרי עיניכם – זו זנות שנאמר: ויאמר שמשון אל אביו וגו’ (שופטים יד, ג (הכוונה באמרם זו זנות רדיפת התענוגות והתאות הגופניות והעסקת המחשבה בהן תמיד. The Sifre interprets . . . don’t follow after your eyes (Numbers 15:39) this refers to promiscuity zenut( ) . . . including the pursuit of pleasure and pursuit of physical gratification as well as the constant wishful thinking about them. [17] In the Guide, Maimonides expands this point. [18] There are some – a partition separates between them and G-d, the collection of dimwits, who suppress their faculty of thinking about ideas, who pursue only the sensory feeling which is our greatest disgrace – the sense of touch. They have no thought or notion except for thoughts of eating, sex and nothing else . . . In contrast, the ideal person whom everyone should emulate fits the following profile [19] [people] for whom all compulsory materialness is humiliating and disgraceful; a flaw which is forced upon them, especially the sense of touch, which is humiliating to us as Aristotle wrote, that moves us to desire eating, drinking and sexual acts, which must be minimized as much as possible. One must be discreet and pained when engaged in it, not make it the subject of our speech, not talk about it freely, not sit in assemblies for these purposes but rather control of all of these needs and reduce them to the essential minimum as much as we can. R. Eliezer follows this ideal. I would argue this is not asceticism. R. Eliezer is doing the same things that everyone else does. His feelings are different (and that affects his behavior somewhat), but his feelings follow from his understanding of the Torah’s ,לא תתורו :instruction and by definition, carrying out the rules of the Torah is not called asceticism. In the 5th chapter of the introduction to his commentary on Abot, Maimonides speaks about dedicating לשם שמיים: ,one’s actions for the sake of heaven 20]] Know that this level is an outstanding and difficult accomplishment that is reached by very few, after very much practice. If there is a man who behaves this way I don’t consider him inferior to the prophets. Someone who uses all of his powers and directs them solely for the sake of G-d, who doesn’t perform any big or small activity or speak a word unless that activity or word brings one toward virtue . . . Maimonides’ idea of “for the sake of heaven” is that certain activities are forbidden unless they are performed for the sake of heaven. These activities include listening to music, studying science, spending time on appreciating art or nature and others like them. For “required” mundane activities like eating, bathing and so on, the intention for the sake of heaven is also necessary and permits two things. 1) It allows more elaborate activities (e.g., to eat a tasty more elaborate meal, as in Baba Kama 72a- אכילנא בשרא דתורא). 2) It also allows one to enjoy the pleasure associated with the activity according to Hillel. As we’ve seen, R. Eliezer disagrees with the second point. [21] Rabbi Moshe Sokol defines Neutralism: [22] Pleasure in itself is neither good nor bad. Pleasurable activities are also, in themselves, neither good nor evil. Pleasurable activities derive their value only instrumentally, either by considering the consequences . . . or by considering the intentions of the person engaging in the pleasurable activity . . . I believe that R. Eliezer is also a neutralist because he is not forbidding any permitted pleasurable activity. If a “mundane” pleasurable activity is clearly a mitzvah, (eating matzah at the seder(?)), then I would guess the pleasure can probably be enjoyed. If it’s not a mitzvah then the pleasure can’t be enjoyed. I saw a midrashic source, which at first glance seems to describe R. Eliezer’s asceticism. The Beit Hamidrash of R. Eliezer was shaped like a stadium. There was a special stone there which was reserved for R. Eliezer to sit on. Once R. Yehoshua came in and began to kiss the stone saying this stone is like Mount Sinai and the one who sat on it is like the Ark of the Covenant. [23] Why did R. Eliezer sit on a stone? But this is an invalid question. Everyone in the beit–hamidrash sat on the floor and this had nothing to do with asceticism (see Yevamot 105b). The teacher however didn’t sit on the floor but sat a little higher, maybe on a stone like this one [see note 24]. The same midrash describes R. Eliezer’s school: One time R. Aqiba was late in coming to the beit hamidrash. He sat outside. A question was asked. They said the halakha is outside . . . the Torah is outside . . . Aqiba is outside. They cleared a way and he came and sat in front of the feet of R. Eliezer. [25] It sounds like the students sat (cross-legged) on the ground in concentric circles around R. Eliezer. R. Eliezer sat (cross-legged) on his stone and R. Aqiba (the most senior student) sat directly at R. Eliezer’s feet. [26] If this arrangement was also in place during R. Eliezer’s derasha, then the first group – the group of congregants that left the earliest were probably sitting (on the ground) on the outermost concentric circle closest to the exit so that they could easily make their get-away. The other groups (who were also planning on leaving early), also sat on the ground nearer to the exit. The students however, who planned on staying until the end sat closest to their teacher R. Eliezer. [1] ת”ר מעשה ברבי אליעזר שהיה יושב ודורש כל היום כולו בהלכות יום טוב יצתה כת ראשונה אמר הללו בעלי פטסין כת שניה אמר הללו בעלי חביות כת שלישית אמר הללו בעלי כדין כת רביעית אמר הללו בעלי לגינין כת חמישית אמר הללו בעלי כוסות התחילו כת ששית לצאת אמר הללו בעלי מארה נתן עיניו בתלמידים התחילו פניהם משתנין אמר להם בני לא לכם אני אומר אלא להללו שיצאו שמניחים חיי עולם ועוסקים בחיי שעה בשעת פטירתן אמר להם לכו אכלו משמנים ושתו ממתקים ושלחו מנות לאין נכון לו כי קדוש היום לאדונינו ואל תעצבו כי חדות ה’ היא מעוזכם אמר מר שמניחין חיי עולם ועוסקין בחיי שעה והא שמחת יום טוב מצוה היא רבי אליעזר לטעמיה דאמר שמחת יום טוב רשות דתניא רבי אליעזר אומר אין לו לאדם ביום טוב אלא או אוכל ושותה או יושב ושונה ר’ יהושע אומר חלקהו חציו לאכילה ושתיה וחציו לבית המדרש. [2] Yitzhak D Gilat, R. Eliezer ben Hyrcanus A Scholar Outcast Bar-Ilan University press 1984, p 279 (English edition). [3] In the Practical Talmud Dictionary by Rabbi this example is דורש .Yitzhak Frank, s.v quoted (Sota 40a): R. Abbahu and R. Hiyya b Abba happened to come to a certain town. R. Abbahu taught aggada; R. Hiyya b Abba taught halakha. Everyone abandoned R. Hiyya b. Abba and went to hear R. Abbahu. רבי אבהו דרש באגדתא רבי חייא בר אבא דרש בשמעתא שבקוה כולי עלמא לרבי חייא בר אבא ואזול לגביה דר’ אבהו [4] Quoted on page 1 of the introduction to Sheiltot d’Rav Achai ed. Rabbi Samuel K. Mirsky (Jerusalem, 1960) fromMedieval Jewish Chronicles Seder ha-Ḥakhamim ve-Korot ha-Yamim, (Part ii, page 84) edited by Adolf (Avrohom) Neubauer. עד שפותח ראש ישיבת סורא והתורגמן עומד עליו ומשמיע דבריו לעם. וכשדורש דורש באימה וסותם את עיניו ומחעטף בטליחו עד שהוא מכסה פדחחו. ולא יהיה בקהל בשעה שהוא דורש פוצה פה ומצפעף ומדבר דבר .וכשירגיש באדם שמדבר פותח את עיניו ונופל על הקהל אימה ורעדה. וכשהוא גומר מתחיל בבעיא ואומר [5] R. Ezra Zion Melamed in Mavo Lsifrut Hatalmud page 74. (However the derasha of the head of the Sura Yeshiva on the occasion of the nomination of the exilarch (previous note) was given before the reading the Torah.) [6] Mishna Midot 2:1 הר הבית היה חמש מאות אמה על חמש מאות אמה רובו מן הדרום, והשני לו מן המזרח, והשלישי לו מן הצפון, ומיעוטו מן המערב. מקום שהיה רוב מידתו, שם היה רוב תשמישו. The temple mount was five hundred cubits by five hundred cubits. Most of the free space was on the south; then on the east; then on the north; and the smallest area was on the west. The larger the area the more it was used. [7] Artscroll translated: the first group of students left . . . the second group of students . . . [8] The same phrase also appears in Shabbat 10a and there too the plain meaning doesn’t fit well: Rava saw R. Hamnuna prolonging his prayers and said: They abandon eternal life and busy themselves with the mundane. Aside from the plural language, how could one describe prayer (service of the heart (Taanit 3a)) as “mundane”? A friend (res) suggested that if this is the same Rav Hamnuna who was criticized by Rav Huna for being single (Kiddushin 29b) and if he still wasn’t married by now then Rava might be telling him that he is abandoning eternal life (marriage and potential children), and busy with prayer , which is temporal because it benefits only himself. Or if it’s the same Rav Hamnuna who in Berakot 31a taught an approach to prayer based on Hannah’s prayer, then maybe Rava, who was a descendent of Eli the Priest (Rosh Hashana 18a – manuscripts), like his forbearer, misunderstood this type of prayer and considered it to be mundane. [9] R. Ezra Zion Melamed, Pirkey Mavo Lsifrut Hatalmud (Jerusalem 5733), p. 64. [10] R. Saul Lieberman Tosefta kiPheshuto, Berakhot, p. 56, explaining the beginning of the 4th chapter. [11] Solomon Schechter ed, Abot de-Rabbi Nathan, Vienna, 1887, Recession B, chapter 30. Page 33b שמאי לא היה אומר כך אלא יעשה חובותינו עם הגוף הזה [12] Nedarim 20b [13] Mishna Betzah (5:2), reshut is a voluntary type of action that has a certain dimension of mitvah-bility to it. כל שחייבין עליו משום שבות, ומשום רשות, ומשום מצוה בשבת–חייבין עליו ביום טוב אלו הם משום רשות–לא דנין, ולא ולא מקדשין, ולא חולצין, ולא מייבמין [14] R. Eliezer also said: one may cut down trees to make charcoal for manufacturing iron tools to perform a circumcision on the Sabbath . . . Our Rabbis taught: In R. Eliezer’s locality they would follow his teaching and cut down trees to make charcoal to make iron tools to circumcise a child on the Sabbath – Shabbath 130a [15] Rambam Shebitat Yom Tov 6:18 writes: The people gather early in the morning in the synagogues and houses of study. They say the prayers, read the Torah relevant to the day and return home to eat. They go to the houses of study, read [Torah], recite [Mishna] until after noon. They say the afternoon prayers and return home to eat and drink for the remainder of the day and night. R. Kapah notes that they return home to eat (after shaharit), but return home to eat and drink after the minha prayer. Here too, R. Eliezer mentions the household items used mainly to store wine. [16] I assume that vis-à-vis these philosophical teachings, there was no “rupture and reconstruction” to interrupt between the times of Chazal and Rambam. [17] Sefer HaMitzvoth, (Neg. 47) Rabbi Kapah’s edition: “ואחרי עיניכם” – זו זנות שנאמר: ויאמר שמשון אל אביו וגו’ (שופטים יד, ג (הכוונה באמרם זו זנות רדיפת התענוגות והתאות הגופניות והעסקת המחשבה בהן תמיד. [18] Guide section III, chapter 8, R. Kapah’s edition. (R. Kapah, in his Sefer Hamitvot points out this parallel) אבל האחרים שמסך מבדיל בינם לבין ה’ והם עדת הסכלים, הרי בהפך זה, ביטלו כל התבוננות ומחשבה במושכל, ועשו תכליתם אותו החוש אשר הוא חרפתנו הגדולה, כלומר: חוש המישוש, ואין להם מחשבה ולא רעיון כי אם באכילה ותשמיש לא יותר [19] Guide section III, chapter 8, R. Kapah’s edition. כל הכרחי החומר אצלם חרפה וגנאי ומגרעות שההכרח מחייבם, ובפרט חוש המישוש אשר הוא חרפה לנו כפי שאמר אריסטו אשר בו מתאווים אנו האכילה והשתייה והתשמיש, שראוי למעט בו ככל האפשר, ולהסתתר בו ולהצטער בעשייתו. ושלא ייחד בכך שיחה ולא ירחיב בו דיבור, ולא יקהל לדברים אלה, אלא יהיה האדם שולט על כל הצרכים הללו, וממעט בהן ככל יכולתו, ולא יקח מהן כי אם מה שאי אפשר בלעדיו. [20] Shemone Perakim, Chapter 5, internet edition here. ודע, שהמדרגה הזאת היא מדרגה עליונה מאוד וחמודה. ולא ישיגוה אלא מעטים, ואחר השתדלות רבה מאוד. וכשתזדמן מציאות-אדם, שזה מצבו, לא אומר, שהוא למטה מן הנביאים, רצוני לומר: שיוציא כוחות-נפשו כולם וישים תכליתם האלוהים יתעלה לבד, ולא יעשה מעשה קטון או גדול, ולא יבטא מילה, אלא שאותו מעשה או אותו ביטוי יביא ל”מעלה” או ל”מה שמביא אל מעלה”. [21] I don’t think Maimonides discusses the pleasure associated with physical activities performed for the sake of heaven. I noticed that in In The Sages – Their Concepts and Beliefs E.E. Urbach (Jerusalem 1978 Heb.), page 299, the author understands that according to Shammai there is no concept of acting for the sake of heaven when it comes to activities that fulfill bodily needs like eating, washing and so on, but I don’t understand why the author says so. [22] Attitudes Toward Pleasure in Jewish Thought, Moshe Z. Sokol, in Reverence, Righteousness and Rahamanut – Esssays in Memory of Rabbi Dr. Leo Jung ed. Jacob J. Schacter, page 300-304 [23] לריח שמניך טובים Shir Hashirim Rabba 1:3 ובית מדרשו של רבי אליעזר היה עשוי כמין ריס, ואבן אחת הייתה שם והיתה מיוחדת לו לישיבה. פעם אחת נכנס רבי יהושע התחיל ונושק אותה האבן ואמר: האבן הזאת, דומה להר סיני, וזה שישב עליה, דומה לארון הברית. [24] Magdala stone (via Google images) http://www.antiquities.org.il/article_eng.aspx?sec_id=25&subj_ id=240&id=1601

[25] Shir Hashirim Rabba 1:3 פעם אחת שהה רבי עקיבא לבא לבית המדרש בא וישב לו מבחוץ. נשאלה שאלה: זו הלכה, אמרו: הלכה מבחוץ. חזרה ונשאלה שאלה. אמרו: תורה מבחוץ. חזרה ונשאלה שאלה. אמרו: עקיבא מבחוץ. פנו לו מקום. בא וישב לו לפני רגליו של רבי אליעזר.

[26] The story in Berakhot 28a (and Yerushalmi Berakhot 4:1 (daf 32b in mechon-mamre and snunit sites), (the question about the obligation of the evening prayer), speaks about a beit–midrash with benches. Maybe the meeting place of the Sanhedrin was different and they didn’t sit on the floor? Textual Emendations in Minhag Anglia

Textual Emendations in Minhag Anglia

Harry Freedman

Harry Freedman’s The Talmud: A Biography is published by Bloomsbury Publications. His next book, The Murderous History of Bible Translations will be published by Bloomsbury in 2016

In his book Changing the Immutable Mac Shapiro notes that, for reasons of מי propriety, the Birnbaum siddur transliterates the words פטום הקטרת in רגליים 1]], instead of translating them. Philip Birnbaum was not the only translator to be troubled by these words. In 1890 Rev. Simeon Singer produced a prayer book in London, with the sanction and authorisation of Chief Rabbi Nathan Marcus Adler. Singer’s object was to produce ‘a correct text and satisfactory translation’ which could be used in ‘Synagogues, families and schools.’[2] Singer used Yitzhok (Seligman) Baer’s Avodat Yisrael as his base text. As befits a prestigious Victorian publication, Singer’s siddur was grandly entitled The Authorised Prayer Book of the United Hebrew Congregations of the British Empire. Known ever since as The Singer’s, it became and remains the defining text of Minhag Anglia.

Notwithstanding is מי רגליים its source in the gemara, and the fact that itself a euphemism, its translation must have been considered unsuitable for inclusion in Singer’s family friendly siddur. But unlike Birnbaum he did not transliterate the Hebrew words. Instead he just left והלא מי רגליים יפין לה אלא שאין out the entire translation of He left his readers with .מכניסין מי רגליים בעזרה מפני הכבוד no explanatory note as to what he had done. In 1904 Arthur Davis and Herbert Adler published a set of machzorim. Popularly known as the Routledge machzorim they served for many years as minhag anglia’s definitive yomtov texts. They followed Singer in omitting the entire translation והלא מי רגליים יפין לה אלא שאין מכניסין מי רגליים בעזרה of .מפני הכבוד By 1939 Singer’s siddur had run to its 16th impression. Now under the auspices of Chief Rabbi J.H. Hertz, those mitpallelim פטום accustomed to saying would have הקטרת been bemused to find the final sentence missing, not just in English, but now also in Hebrew. Dayan Ivan Binstock, the Minhag Anglia editor of the Sacks Koren machzorim, suggests that Hertz required this change for consistency, to bring the Hebrew and English into line. The alternative remedy, of adding an English translation to the extant Hebrew, was clearly not appropriate. This was not Chief Rabbi Hertz’s only editorial amendment. He substantially reduced the Prayer for the Government (in England this was known as the Prayer for the Royal Family). Amongst other omissions he הפוצה דוד עבדו מחרב removed and רעה significantly reduced the number of verbs required to elevate and protect the monarch. Possibly, such over-anxious concern for the monarch’s welfare was not deemed appropriate for the still-powerful British Empire. Chief Rabbi Hertz had his own concerns about indelicacy. In the siddur with commentary that he published in 1946 he too omitted all But he also .מי רגליים mention, in Hebrew and English, of ameliorated the words of the Shabbat shacharit Amidah. In the Hertz siddur, the who do not dwell in the Sabbath’s rest[3] have ערלים In his commentary Hertz notes that ‘for many .רשעים become ,ערלים centuries most prayer books had this reading instead of which recent editions, through the influence of Baer, have reintroduced’.[4] .is found in a number of siddurim including R לא ישכנו רשעים Shlomo Ganzfried’s Avodat Yisrael, R. Yehudah Leib ben Meir Gordon’s Beit Yehuda and R. Yosef Teumim’s Higayon Lev. R. Yaakov Emden[5] and R. Chaim Elazar Spira[6], amongst others, argue against it on the grounds that whereas are not ערלים .are רשעים obligated to keep the mitzvah of Shabbat, many Baer, whom Hertz holds responsible for the current use of ערלים: כן הנוסחא בכל ס”י (=ספרי :states in a footnote ,ערלים ישנים) ובסדורי Hertz’s [ספרדים וברמב”ם. [7 in place of reflects at best a minority רשעים choice of opinion and has neither precedent nor subsequent inMinhag Anglia. It was almost certainly introduced for reasons of propriety. In 2006 a fourth edition of the Singer’s siddur was published with a new translation by Chief Rabbi Jonathan Sacks. For the first was printed פטום הקטרת ,time in the history ofMinhag Anglia in full, including the final sentence, in both Hebrew and may have not מי רגליים .English but in our מפני הכבוד have been brought to the azarah seems פטום הקטרת more plain-speaking age its restitution to just as .כבוד much to be an expression of

[1] B. Keritot 6a. [2] Preface to 1st edition of the Authorised Daily Prayer Book, ed. Simeon Singer, London 1890 וגם במנוחתו לא ישכנו ערלים [3] [4] J.H. Hertz, Authorised Daily Prayer Book with Commentary, p 458-9 לוח ארש, 312 [5] מאמר נוסח התפילה, 23 [6] [7] Siddur Avodat Yisrael, 5628 edition p. 219.