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TITLE: Halakhic Values: Pesaq or Persuasion
Author: Reuven Matityahu Singer

For centuries scholars have recognized that our tradition is made up of more than just its technical obligations and prohibitions, issurim and hiyyuvim.1  The mesorah has overarching values which can be referred to as the tradition’s telos, axioms, or élan.  The Torah conveys to us its values in a number of ways.  Some of its values are explicitly mandated.  For example, the value of compassion is taught through the rabbinic teaching “just as He [God] is gracious and compassionate so to you [must be] gracious and compassionate” (Shabbat 133b).  Some values are stated explicitly yet not formulated as mandates.  For instance, Rabban Shimon ben Gamliel states, “all my days I grew up among the sages and I never found anything for the body better than silence” (Avot 1:7).  Clearly, Rabban Shimon ben Gamliel values silence, but he does not formulate this value as a directive of “be silent,” or “limit speech.”  He simply informs us that silence is indeed to be valued.  Other values are not stated explicitly.  They may be imbedded implicitly in a narrative.2  For example, the Torah never mentions any preference for monogamy over polygamy.  Nevertheless, the Torah’s description of the problems resulting from the polygamous relationships of the avot might lead one to conclude that the Torah values monogamy.

These Torah values, whether mandated or not, explicit or implicit, stand behind halakhah’s technicalities.  And while halakhah’s formal legal requirements are manifest expressions of these values, these formalities do not exhaust the possible expressions of these values.  Therefore, Jewish tradition has directed us to behave in accordance with both the technical formulations of law and the values for which they stand.  The Torah expects us to go beyond compliance with its technically directed guidelines.3  The Torah counts on us to understand its values and implement them in conduct that lies outside its formalities. 

Recently, a debate has emerged in the orthodox community over the legal force of the mesorah’s instruction to reach beyond the formalities of the law.  We are asking: what is the halakhic status of this need to go beyond the technical parameters of halakhah?  If rabbinic decisors believe a particular behavior, permitted on a technical level, is not in consonance with the overarching objectives of the Torah, does that activity become halakhically forbidden? Would we apply the term asur to it?  Or, perhaps, do individuals have the discretion at a legal level to disregard rabbinic apprehension over such behaviors?  Two leaders of contemporary orthodoxy have articulated opposing views in answering these questions.  As we will see, Rabbi Mayer Twersky has staked out a position claiming that halakhic values have binding force in the halakhic system and can engender legal prohibitions of behaviors that are permissible on a formal and technical level.  For R. Twersky, analysis of halakhic values is part of the process of rendering pesaq halakhah.  Rabbi Saul Berman claims that the mesorah’s directive to go beyond formal legal requirements does not have legal authority.  Behavioral compliance with the implicit values of halakhah is voluntary, and the rabbinic role is to persuade individuals to comply with the telos of the law, rather than to pronounce non-compliance legally forbidden. For R. Berman, analysis of halakhic values must remain separate from pesaq halakhah.

This essay moves to exploring the legitimacy of each approach after outlining and clarifying the extent of this debate. It examines the use of the mandated halakhic value termed “shabbaton” in the responsa literature, revealing precedents for both R. Twersky’s and R. Berman’s positions.  Finally, it considers the implications that may be drawn regarding the force of other Torah values. 

I. The Debate and its Dimension

A good place to begin to trace the dispute is an article by Rabbis Aryeh and Dov Frimer outlining the halakhic positions regarding women's prayer groups.4  In that article they include a position that claims that while women's prayer groups are technically permitted, they should not be instituted:

     Rabbi Joseph B. Soloveitchik, like R. [Moshe] Feinstein, was of the view that a women's prayer service, if properly structured, could be conducted in accordance with halakhah. Nonetheless, the Rav was most hesitant about women's tefillah groups as a general practice and felt that they should not be encouraged. Consistently, he would recommend to his students not to hold such services...5

     The Rav felt strongly that the line between strict halakhah and public policy must not be blurred. 6

     They [Rav Soloveitchik and other halakhists] do not perceive these issues as matters of strict halakhah per se, but rather of hashkafah and public policy... Within the broad framework of the halakhic system, the classification of the rationale is not merely technical; it has significant ramifications and implications as to their mutability and flexibility in reaction to time and place...7

It is clear that these authors claim that the Rav and others made a distinction between hashkafah or public policy and halakhah. According to their understanding of R. Soloveitchik, women's prayer groups are ill-advised, yet permitted. Women who would engage in them would be making a bad decision, but not violating halakhah.

In the following issue of Tradition, Rabbi Mayer Twersky (without explicitly referencing their article) takes issue with the Rabbis Frimer’s understanding of Rav Soloveitchik's stance. He laments:

The discussion regarding women’s tefillah groups has regrettably focused excessively on technical issues and legalities... Undoubtedly such technical perspectives and narrow questions are necessary to ensure our compliance with all minutiae of halakhah.  Torah, however, consists, not only of halakhic details, but also of halakhic values.  Unfortunately the latter have been neglected in the discussion concerning women’s tefillah groups.8

And he counters:

     Halakhah is a two-tiered system consisting of concrete, particularized commandments governing our actions as well as abstract, general imperatives governing the matrix of our actions... The Torah legislates not only actions, but also de'ot (ethical-moral-religious-intellectual dispositions). It prescribes ritual but also establishes boundaries for the concomitant religious experience. 9

     The dual focus of Torah law has important repercussions for the methodology of pesaq. Any contemplated action or course of action must be evaluated on two levels. We must investigate if it is technically correct and permissible - viz., are any particulars of Torah violated. In addition, we must determine if the proposal is consistent with Torah principles, attitudes, values and concepts. The permissibility or appropriateness of any particular action or initiative can only be determined after such a two-pronged analysis-practical and axiological.10

R. Twersky rejects the distinction between “strict halakhah” and “hashkafah” drawn in the Frimer article.  He claims that the hashkafic concerns referred to are actually halakhic values that impinge upon halakhic decision making.  To demonstrate how halakhic values influence legal halakhic decision-making, R. Twersky looks to the comments of Ramban on the word shabbaton:

     It appears to me that this interpretation intends to state that we are commanded by law of the Torah to have rest on a festival day even from activities which are not in the category of melakhah ("work"). Thus we are not to be engaged the whole day in wearisome tasks measuring out crops of the field, weighing fruits and gifts, filling the barrels with wine and clearing away the vessels, and moving stones from house to house and from place to place [although none of these activities is "work" in the strict sense of the term]. Similarly, if it be a city encompassed by a wall and its gates are locked at night, [and it is therefore according to law of the Torah treats as one domain, and the prohibition against taking out aught from one domain to another is inapplicable there], they would be loading heaps on asses, and also wine, grapes, and figs and all manner of burdens they would bring on a festival; and the market place would be full for all business transactions, the shops standing open and the shopkeepers giving credit, the money-changers sitting before their tables with the golden coins before them and the workers would rise early to go to their work and hire themselves out for such works just as on weekdays, and so on! And since all these matters do not entail melakhah, they would be permissible on a festival day and even on the Sabbath itself! Therefore the Torah said that [the festival should be a day of] shabbaton (solemn rest), meaning that it should be a day of rest and ease, not a day of labor [and weariness].11

R. Twersky comments:

     In observing shabbat our behavior must be technically correct- i.e., we must not perform melakhah. But we are also obligated to maintain the élan of shabbat. This requirement, as detailed by Nahmanides, precludes a wide range and array of non-melakhah activities. A contemporary addition to Nahmanides' list of prohibited non-melakhah activities would be taking advantage of an eruv to dress in shorts and t-shirts and engage in sports on shabbat. Such anomalous behavior does not involve any technical violations of the particulars of shabbat, but it certainly conflicts with the principle of shabbaton, the élan of shabbat; such behavior is therefore unequivocally wrong.12

R. Twersky’s line of reasoning may be summarized as follows.  Behind all the technical prohibitions of labor on shabbat stands a halakhic value to create a day of rest and repose termed shabbaton.  Ramban demonstrates how this halakhic value engendered prohibitions which the technicalities of hilkhot shabbat would have left permitted.  This value prohibits activities unmentioned by Ramban like engaging in sports on shabbat because such activities violate the value of shabbaton.

R, Twersky uses a similar logic to prohibit (or explain R. Soloveitchik’s prohibition of) women’s prayer groups.  He seems to acknowledge that women’s prayer groups violate no technical halakhic issurim.  He declares that the fundamental problem with such services is an axiological one.  He begins by demonstrating that the mesorah values the eschewing of active leadership in communal prayer.  He builds this perspective on the following passages written by R. Soloveitchik. 

     If genuine prayer is performed in the heart, there is no need for a master of ceremonies who will mediate between the congregation and the Creator... There is no need for the rabbi to stand on a platform, bedecked in “priestly vestments,” and conduct services.  He and the simple Jew are of equal lineage before the Omnipresent and it is incumbent upon [both of] them to pray on the lower level of the synagogue without any distinction...13

And furthermore:

     Standing in a place above that of the congregation is at odds with service of the heart, which expresses the sentiment of “from the depths.”14

R. Twersky additionally notes that

     Hanna, the quintessential supplicant, seeks neither approbation nor active participation, nor leadership; instead she seeks and beseeches God to find solace for her troubled soul.15

Based upon these sentiments, R. Twersky avers the following axiological principle: “Desiring and emphasizing active participation and leadership are antithetical to authentic service of the heart, which expresses the sentiment of ‘from the depths.’”  Given that “advocates of women’s tefillah groups reason that these gatherings provide women with active, participatory roles in prayer,”16 R. Twersky concludes that they are impermissible based on his analysis of halakhic values.

While at first glance, R. Twersky’s analyses of sports on shabbat and women’s prayer groups seem equally forceful, there is a significant difference between the two.  As noted above, the Torah informs us of its values in different ways.  Some are implicitly embedded in the tradition, others are explicit,  and still others are directly mandated.  One could argue that not all values have equal force.17  Certainly the explicitly mandated values would be the most forceful while values that are not mandated would be less forceful — - and even weaker if they are only implicit.

Such a gradation in the force of Torah values would have an important impact on this discussion.   The Torah itself explicitly directs us to characterize our shabbat experience as one of shabbaton. On the other hand, neither the written Torah nor the rabbinic tradition clearly mandates that our prayers be characterized by the adage of “from the depths.”  To be sure, the term “from the depths” is a phrase from the Bible.   But its context there is a description of how the psalmist happens to be crying out to God, not necessarily a directive to others as to how they should pray to God.  R. Soloveitchik's beautiful words seem to be a description of the phenomenology of prayer, not an explicit halakhic directive that prayer must be categorized as “from the depths.”  Indeed, if one is consistent and takes R. Soloveitchik’s words as prescriptive rather than descriptive, one might claim that his position would forbid the services of a professional hazzan—a conclusion that seems unlikely.  Hannah may have prayed “from the depths,” but that is not equivalent to an explicit directive that all Jewish prayer should be characterized as such. 

This is not to suggest that “from the depths” is not a legitimate halakhic value.  Indeed, certain dinim of hilkhot tefillah seem to be based on the tradition’s distaste for individuals desiring the limelight in tefillah.  R. Soloveitchik understands the prohibition of standing on a platform during prayer to be based on such a principle.  The halakhah instructing individuals to refuse initial requests to serve as shaliah tzibbur18 seems to be based on such an approach to prayer.  While there is no explicit directive to characterize our prayers with the sentiment of “from the depths,” the tradition implicitly through its descriptions of prayer and certain dinim articulates an implicit value.  While the tradition appreciates the value of “from the depths,“ it never explicitly informs us that we must characterize our tefillot according to its spirit.  Unlike shabbaton, “from the depths” is not a halakhic value that is articulated as a directive.  One can argue that shabbaton has halakhic weight because it is mandated, whereas “from the depths” has no halakhic force because it is not.  Yet R. Twersky holds that this value of “from the depths” must be implemented and has a legal force in the halakhic system.  In short, R. Twersky's position is that both explicitly mandated and non-mandated halakhic values can affect the legal system and produce halakhic ramifications.

In contrast to R. Twersky's position, Rabbi Saul Berman gave a lecture at the 2000 Feminism and Orthodoxy conference entitled, “Power, Authority or Persuasion: The Rabbinic Role in the Halakhic Rights and Duties of Women.” R. Berman states that Torah includes a “vital and critical dimension, [the] discretionary spiritual judgment of individuals.”   This dimension includes a realm of behavior that is neither forbidden nor mandated.  Therefore, pesaq halakhah plays no role in this realm.  The rabbinic responsibility in this dimension is not authoritative legal decision making, but rather persuasion.  Rabbis may see fit at times to encourage behaviors that the law does not require.  Likewise, rabbis may discourage behavior that the law allows.  Rabbi Berman maintains that the phrase “ein ruah hakhamim nohe mimmenu” is used by Hazal to indicate rabbinic censure of permissible yet unrecommended behavior.  He asserts that the intent of Hazal in their use of this phrase is, “This [act] is mutar, but we think you shouldn’t be doing this.” It is striking to compare R. Berman’s use of the word “mutar” as characteristic of this phrase with R. Twersky’s understanding.  The latter writes:

     Hazal in many instances highlighted the difference between technical and axiological infractions by delineating different categories of impermissible behavior. Whereas the former are always labelled asur, the latter though categorically wrong and impermissible, are classified as ein ruah hakhamim nohe mimmenu, or alternately without classification unequivocally censured. 19

Just as they disagree over ein ruah hakhamim nohe mimmenu, Rabbi Berman and Rabbi Twersky disagree over Ramban’s understanding of Lev. 19:2, “qedoshim tihiyu.”  Ramban claims there that the laws of the Torah are insufficient; that it is possible to be a scoundrel within the limits of the Torah.  He therefore states that the Torah instructs us to be holy by going beyond the formal explicit requirement of the law.  R. Twersky seems to understand this charge of qedoshim tihiyu to engender actual obligations and prohibitions.  R. Berman, on the other hand, understands Ramban to say that “qedoshim tihiyu” is the vehicle through which we are urged toward the use of our autonomous understanding of God’s role in the world.

For R. Berman, qedoshim tihiyu does not authorize poseqim to forbid behavior.  Compliance with qedoshim tihiyu is left to the individual’s “autonomous understanding.”  R. Berman holds that the whole discussion of women’s prayer groups belongs in this category.  The debate over women’s prayer groups moves away from the categories of permitted and forbidden to the categories of advisable and inadvisable. 

From here, it is clear that R. Berman holds that what we have termed “non-mandated values” have no legal force.  What about explicitly mandated values like shabbaton?  The extent of R. Berman’s position becomes clear in his article entitled “Playing Ball on Shabbat and Yom Tov.”20 

In this article, he analyzes the issue of ball playing on shabbat and concludes that ball playing on shabbat is discouraged by poseqim, but nevertheless is technically permitted: “Ball playing on shabbat and yom tov is a vacuous, pointless activity, almost as useless as sleeping hours on end.  But it is halakhically permissible...”21

In the reader response and author interchanges to The Edah Journal,22 two readers criticize R. Berman for not taking into account the issue of shabbaton.  Echoing R. Twersky‘s position, Terry Novetsky states, “Hilkhot shabbat encompasses a much larger tapestry than mere technical observance of negative precepts.  Thus, when considering those as well as many other factors involved in pesaq halakhah, I do not believe that Rabbi Berman’s absolute and unequivocal position is sustainable.”  Like R. Twersky, Novetsky relies on the passage in Nahmanides.  He writes “The Ramban stresses that the corpus of halakhah is comprised of the combination of the specifics (the issurei melakhah) plus the gaps to be filled in by the themes expressed therein.” 23 

Novetsky correctly notes the absence of any discussion of shabbaton in R. Berman’s article.  Even the mandated telos of shabbaton finds no place in R. Berman's discussion.  Rabbi Berman’s position appears to be that even mandated values do not have halakhic import.  Their role is to inspire voluntary behavior beyond what the law requires. 

II. The Poseqim and Their Use of Shabbaton.

Rabbis Berman and Twersky lay out their divergent positions without pointing to precedents in the halakhic literature that support their positions.  It seems that the next logical step in this discussion is to explore the role of halakhic values in recorded pesaq halakhah.  This is a very complex task given the possibility, noted above, that different types of values may have different halakhic weight.  A full exploration of this question needs to take account of this subtle point.  The weight of mandated values must be explored in isolation from non-mandated values and vice versa.  The remainder of this study’s goal is to explore the role of the mandated value shabbaton in the responsa literature.  It will be shown that both positions have precedents in the poseqim.  Some tentative deductions will be added regarding what might be drawn from the shabbaton discussion to non-mandated values.

Apparently the first major poseq to use this passage in Ramban was the R. Moses Sofer (Hatam Sofer).  In two responsa, the Hatam Sofer uses this passage to  reach halakhic conclusions. Rabbi Sofer was asked about the status of Jews who do commercial business in their stores on shabbat.24 He responds that such individuals are to be considered violators of biblical shabbat prohibitions.  They are in violation of the command to be at rest on the Sabbath day as outlined by Ramban.  While the Torah itself never mentions a prohibition of commerce, the spirit of shabbat as expressed by shabbaton produces an issur.  Rabbi Sofer detects a possible objection to his stance.  He notes that the Talmud considers business transactions to be forbidden rabbinically, not biblically.  How then can he claim that those who keep their stores open are to be considered violators of shabbat de-oraita?  R. Sofer explains that occasional business transactions would not violate any biblical command. Ramban's comments only yield a prohibition of habitual and routine commerce on the Sabbath. The rabbinic enactment was an extension to prohibit even occasional transactions. Here R. Sofer uses this passage as R. Twersky understands it. Even though we find no technical prohibition in the Pentateuch forbidding business activity, the Hatam Sofer understands the élan of shabbaton to engender an actual Biblical issur.

In another responsum,25 the Hatam Sofer was asked whether train travel is permitted on shabbat. After a long discussion, he concludes that train travel would violate the prohibition of tehum shabbat (the boundary, generally 2,000 cubits from the city limits, beyond which movement on shabbat is forbidden). He then notes a striking discrepancy in the halakhot of shabbat. Travel by boat on shabbat is generally forbidden by the rabbis, yet they make an exception for travel to perform a devar mizvah.26 Devar mizvah includes travel to make a livelihood. Similarly, mahshikhin al ha-tehum (beginning a journey on shabbat, going only as far as the boundary, in order to facilitate going further once shabbat ends) is forbidden, but an exception can be made for those whose journey's purpose is for burying the dead or arranging marriages. The Hatam Sofer wonders why a journey for livelihood is not sufficient to allow hahshakhah al ha-tehum. This question is even greater given that hahshakhah al ha-tehum does not involve a noticeable violation of shabbat.  One might expect greater leniency with regard to it. R. Sofer explains that the reason for the greater stringency regarding hahshakhah al ha-tehum is that it involves a Torah prohibition.  The individual who sets out on his journey on shabbat is in violation of the biblical command to observe a restful shabbat as explained by Ramban.  Walking towards the tehum is in violation of the shabbaton of shabbat. Therefore it is permitted only in a case of isqei ha-met (tending to the deceased) or isqei kallah (marriage arrangements).  Boat travel, however, is not a violation of shabbaton, for there is no exertion or movement of the body that violates the restfulness of shabbat.  An individual on a boat may rest just as at home.  Based on this reasoning, R. Sofer deduces another reason for forbidding train travel.  On the train, one’s body is jostled around and is therefore unable to achieve the restfulness that one is accustomed to at home.  He therefore concludes that train travel is biblically forbidden according to Ramban.  Here again the Hatam Sofer understands that the restful spirit of shabbat indicated by the word shabbaton yields a halakhic prohibition of train travel on shabbat.

Based on the Hatam Sofer's use of Ramban's comments, other poseqim have similarly forbidden activities that they felt to be contrary to the élan of shabbaton.  In Heikhal Yizhaq27, Rabbi Isaac Herzog builds on the Hatam Sofer's understanding of the prohibition of conducting business on Shabbat. R. Sofer argues that habitual business activity is biblically forbidden because of shabbaton.  R. Herzog similarly argues that habitual use of non-Jews to perform melakhah for Jews is a biblical violation of shabbaton.  While amirah le-nohhri (requesting a gentile to perform an action on shabbat that is forbidden to a Jew) is usually understood to be a rabbinic prohibition, R. Herzog explains that it is actually an extension of a Biblical prohibition.  Based on the Hatam Sofer’s responsum, R. Herzog claims that routine use of non-Jews to do melakhah is forbidden biblically, and that the rabbinic decree simply  extends the prohibition to even sporadic use.  R. Herzog understands the “élan” of shabbat as expressed in Ramban’s comments to engender a biblical prohibition of routine amirah le-nokhri.28

Rabbi Eliezer Waldenberg29 also built upon the Hatam Sofer's responsa to forbid bicycle ridding on shabbat. He  concluded that the exertion and movement of bicycle riding is forbidden,  on the basis of R. Sofer’s understanding of Ramban’s comments.  Just as R. Sofer forbids the jostling of the body involved in train travel, so too such movement would preclude any permission to ride a bicycle on shabbat.  Rabbi Waldenberg also finds confirmation of his position in a responsum of the She'eilat Ya`aqov, which he cites.

While Rabbis Waldenberg and Herzog built on the position of the Hatam Sofer, Rabbi Benzion Meir Hai Uziel limited the range of  R. Sofer’s position.  Rabbi Uziel was asked about taking local city public transportation on shabbat.30  In the course of his discussion he brings up the Hatam Sofer’s position on train travel and raises a difficulty with it.  He cites  R. Moses Isserles (Rema),31 who states that riding in a wagon driven by non-Jews is forbidden.  The Rema gives the reason for this prohibition, applying to it the rabbinic decree against riding animals lest one cut a branch to prod the animal.32  Based on this statement by Rema, R. Uziel challenges the position of the Hatam Sofer, wondering why Rema does not mention as well the jostling that R. Sofer regarding as contrary to  the requirement of shabbaton.  Rabbi Uziel goes even further, suggesting that  the Hatam Sofer’s argument prohibiting movement of the body should preclude even walking on shabbat!  That absurdity leads R. Uziel to regard the Hatam Sofer's position as very weak.

R. Uziel therefore suggests an alternate understanding of the Hatam Sofer.33  He suggests that R. Sofer's prohibition of bodily movement applies only in cases where the body is in constant motion all or most of shabbat.  Such an occurrence, he claims, would indeed violate the halakhah of shabbaton as explained by Ramban.  While R. Uziel does allow for a halakhic application of Ramban’s comments, it is certainly more limited than that suggested by R. Waldenberg.  Presumably R. Uziel would forbid bicycle riding that lasted most of shabbat as a violation of shabbaton.  However, more limited riding would not violate shabbaton.34  Similarly, prohibiting ball playing for even a few hours on shabbat would also seem to be an over-extension of the principle, according to Rabbi Uziel.  For R. Uziel it seems that the halakhic telos has legal force only when its élan is egregiously violated.  It has no halakhic status on more subtle levels.

Rabbi Mordekhai Halevi Horovitz in his Mattei Levi35 goes even a step beyond limiting the Hatam Sofer.  He rejects Ramban’s view outright as a source for issuing issurim.  In 1906, R. Horovitz was asked by a rabbi in Paris if travelling on the subway is permitted on shabbat.36  He begins his answer by quoting the  responsum of the Hatam Sofer mentioned above regarding train travel.  He writes that R. Sofer built his prohibition of train travel solely37 on the issue of tehumim, which does not arise with respect to subway train travel since the train never leaves the city limits.  He further argues that even if the subway left the city limits, it would not violate tehumim, since the train is always enclosed by underground walls. He nevertheless finds travel by subway  problematic. He states if subway travel were permitted, then those who are not meticulously observant might become lax in other areas of halakhah. Furthermore, even those who are particularly God fearing  might come to imagine that all train travel was permitted and might fail to see the subtle differences between subway and other train travel.

R. Horovitz goes on to say that at first he considered the passage in Ramban as a reason for prohibition.  He had surely seen the Hatam Sofer’s position in the very  responsum from which he quotes.  Yet R. Horovitz refrained from using the passage in Ramban to prohibit. Clearly, Rabbi Horovitz felt that subway travel was not in the spirit or "élan" of shabbat. Why did Rabbi Horovitz reconsider and refrain from relying on this Ramban to forbid subway travel?

He based his change of mind on a discussion38 of the prohibition of setam yeinam (gentile wine). The question is asked, why is cooked wine an exception to the rule prohibiting the drinking of setam yeinam? The reason behind the prohibition, to prevent socialization that may lead to intermarriage, applies just as much to cooked wine as it does to non-cooked wine. To rephrase the question in Rabbi Twersky's terms, the axiological principles of the prohibition against wine apply equally to cooked wine and liquor. The answer quoted by Rabbi Horovitz is that the sages forbade only uncooked wine and that we have no power to forbid other beverages even where the reasoning of the original prohibition applies.

R. Horovitz sees in this answer a direct contradiction to R. Twersky's thesis. The axiological concerns cannot forbid something that has not been technically forbidden. He therefore resists employing Ramban's comments as a source to forbid, 39 even though he clearly sees subway travel as contrary to the spirit of shabbat. R. Horovitz articulates his position quite forcefully in the last paragraph of his responsum. There he states that "the seal of The Holy One Blessed be He is truth and in this matter it is good and urgent to declare the truth; and that is that fundamentally there is no foundation to forbid it (subway travel) but since it may lead to failings, those who fear [God] should distance themselves from ugly deeds and their like, and they should treat it as [an] issur.”  This position is quite consistent with Rabbi Berman’s claim that certain behaviors are neither forbidden nor mandated, and in these areas rabbis are to use their powers of persuasion rather than authority to steer the community to do the right thing.

R. Horovitz does not explain how he understands this Ramban. Perhaps R. Horowitz felt that Ramban understood the Torah to empower the talmudic sages to legislate prohibitions against non-melakhah activity, though not permitting later, individual rabbis, in the absence of such legislation,  to forbid activities they find out of spirit with shabbat. Indeed, such an understanding of Ramban is supported by the fact that all the examples of non-shabbaton activities that Ramban brings are activities against which the rabbis indeed declared decrees.  In fact the Maggid Mishneh seems to understand Ramban in just this way.  Rambam40 suggests that the Torah’s command tishbot (Exod. 23:12) instructs us that we are to refrain from acts that are not melakhah.  He then states “the sages forbade many things because of [the requirement] to rest (shevut).”  The Maggid Mishneh’s comments there read as follows:

       The intention of our master [Rambam] is that the Torah forbade the individual melakhot in the way that we have made clear their matters and measures.  And still an individual could toil in things that are not melakhot the entire day.  Therefore the Torah said “tishbot.”  Thus wrote Ramban z”l in his commentary on the Torah.  And the sages came and forbade many things.

Here the Maggid Mishneh implies that the sages of the past are the ones who determined the prohibitions to which the Torah’s command of “tishbot” apply.  This would suggest that only an authoritative body of sages has the power to determine the non-melakhah acts which tishbot or shabbaton are to restrict.41  He seems to equate this explanation of Rambam with the position of Ramban as he states, “Thus wrote Ramban z“l in his commentary on the Torah.”  Indeed, R. Horovitz understands the act of prohibiting subway travel as a legislative ordinance.  Regarding his hesitance to forbid, he writes “who can say now that he a great leader that the generation will heed his words if he gets up and declares a new decree which earlier generations never legislated.”

III. Conclusion

The Mattei Levi’s position that even the explicitly mandated telos of shabbaton has no legal force is a sound precedent for R. Berman’s approach.  The Hatam Sofer’s position, on the other hand, is incompatible with R. Berman’s omission of shabbaton from his halakhic discussion.  For the Hatam Sofer, mandated values play an essential role in deriving pesaq halakhah.  Nevertheless, even the Hatam Sofer’s position is not necessarily a full endorsement of R. Twersky’s position.  As emphasized above, shabbaton is a mandated value, while “from the depths” is not.  It is therefore conceivable that while the Hatam Sofer gives halakhic weight to the telos of shabbaton, he would not give the same force to values that the tradition does not explicitly mandate.  An exploration of the status that non-mandated values have for poseqim such as the Hatam Sofer is a necessary next step in this discussion.  My hope is that this study has shed light on this debate, and that it will contribute to the ongoing investigation of the place of the mesorah’s values in its legal decision making.

* Many thanks to those who read over this essay and offered their comments.  I am particularly grateful to Rabbi Dov Linzer and my wife Emily for their important comments.

1 See R. Aharon Lichtenstein, “Does Jewish Tradition Recognize an Ethic Independent of Halakhah?” in Contemporary Jewish Ethics, ed. M. Kellner (New York 1978); R. Yitzchak Twersky, “Make a Fence Around the Torah,” The Torah U-Madda Journal 8 (1998-1999) pp, 25-42; and Eugene Korn, “Legal Floors and Moral Ceilings: A Jewish Understanding of Law and Ethics,” The Edah Journal 2,2. 

2 Clearly, values of this sort are more difficult to pin down.  Because they are implicit, great subjectivity is involved in determining what they are.  (For a good example of how the same narrative can be used to draw widely divergent value lessons see Yitzchak Blau, “Ploughshares Into Swords: Contemporary Religious Zionists and Moral Constraints,” Tradition 34, 4 (Winter 2000):42-43, 51-52.)  Nevertheless, the difficulty in determining their nature does not preclude their existence.

3 See n.2

4  Aryeh and Dov Frimer, “Women’s Prayer Services — Theory and Practice, Part 1 – Theory,” Tradition  32:2  Winter 1998): 5-118.

5  Ibid., p. 40.

6  Ibid., p. 43.

7  Ibid., p. 47.

8 R. Mayer Twersky, “Halakhic Values and Halakhic Decisions: Rav Soloveitchik's Pesaq Regarding Women’s Prayer Groups,” Tradition 32:3 (Spring 1998): p. 5.

9  Ibid., p. 8.

10 Ibid.,p. 9.

11  Ramban on Lev. 23:24. Translation from Chavel English edition.

12  Twersky, “Halakhic Values and Halakhic Decisions,” p. 6.

13 R. Joseph Ber Soloveitchik, “Tefillatam shel Yehudim,” in Ma`ayanot, vol. 8, p. 11.

14 Ibid.

15 Twersky, “Halakhic Values and Halakhic Decisions,” p. 12.

16 Ibid., p. 10.  This is R. Twersky’s understanding of the motivation behind the implementation of women’s tefillah groups.  He does not mention other possible motivations such as: a desire for proximity to the Torah and bimah, the educational experience derived from becoming familiar enough with the tefillot to lead them, or the enhancement of kavvanah that some women may accomplish in an exclusively female context.  Nevertheless this study will not pursue an argument against R. Twersky’s understanding of the motivation behind women’s tefillah groups.  For the purpose of exploring the issue of the place of halakhic values in pesaq halakhah, we will presume that indeed women’s tefillah groups violate the axiom of “from the depths.”

17 Rabbi Dov Linzer pointed out this important distinction to me.

18 Berakhot 34a; Shulhan Arukh, Orah Hayyim 53:16.

19  Twersky, “Halakhic Values and Halakhic Decisions,” p.13.

20 R. Saul J. Berman, “Playing Ball on Shabbat and Yom Tov.” The Edah Journal 1:1

21 Ibid.

22 and

23  07/25/01 Reader/Writer responses to Edah Journal

24  She’elot Hatam Sofer 5:195.

25  Ibid., 6:97.

26  Shabbat 19a.

27  Heikhal Yizhaq, Orakh Hayyim #30.

28  See Aseh Lekha Rav, vol. 6 #27 pg. 88 where Rabbi Chaim David Halevy comes to the same conclusion.

29  Ziz Eliezer, vol. 1 #21 and vol. 7 #30.

30  Pisqei Uziel be-She’elot ha-Zeman, #13.

31  Shulhan Arukh, Orah Hayyim 305:18.

32  See Bi’ur Halakhah ad loc., s.v. Gam.

33  Rabbi Dr. David Novak pointed out to me in a phone conversation that R. Uziel may not agree with the Hatam Sofer’s position and  may be offering an alternative understanding of it  so that his own pesaq is yozei kol ha-de`ot (consistent with all views).

34  That is not to say that R. Uziel would not refrain from prohibiting bicycle riding for other reasons.

35  R. Horovitz was a talmid muvhaq of R. Esriel Hildesheimer.  R. Hildesheimer referred to him as “an outstanding student and zaddiq, of whom among all the youth of this generation almost no one can be found...” (Hildesheimer Briefe, letter 47, quoted in David Ellenson, Esriel Hildesheimer and the Creation of a Modern Jewish Orthodoxy (Tuscaloosa, Alabama, 1990), p.97.  R. Horovitz held correspondence with the great sages of his time.  R. Isaac Elhanan Spektor in one such correspondence referred to him as “the Rabbi, the famous gaon, sharp and expert in his learning, pure and clean...” (Mattei Levi, vol. II, p. 123).  For more on R. Horovitz see R. Isaac Unna, “Marcus Horovitz,” in Jewish Leaders, ed. Leo Jung (Jerusalem, 1964), pp. 247-257 and Isaac Heinemann, “Marcus Horovitz,” in Jewish Leaders, ed. Leo Jung (Jerusalem, 1964) 259-272.

36  Mattei Levi, vol. II, Orah Hayyim  #19.

37  This is not accurate.  The Hatam Sofer forbids train travel for two reasons, tehumim and his understanding of Ramban.  By omitting R. Sofer’s reliance on Ramban, R. Horovitz is already hinting at his ultimate rejection of its validity.

38  R. Horovitz quotes this entire discussion in the name of the Taz.  The question was originally asked and answered by  Rabbeinu Asher (Rosh) (Avodah Zarah ch.2, sec. 12).  The Taz (Yoreh De`ah 123:3) merely quotes Rosh and explains some subtle difficulties in Rosh’s articulation of the question.  In fact, the answer that the Mattei Levi quotes in the name of the Taz is a gross oversimplification of the Rosh’s answer.  Rosh claims that the reason for the absence of any prohibition of cooked wine is that it is scarce.  The Mattei Levi seems to build on this and suggest that since the Rabbis excluded cooked wine from their prohibition (because it is scarce), it remains permitted no matter how good the reason to forbid it.  Even if the reason for the original prohibition applies to it (i.e. the élan of the prohibition), cooked wine  remains permissible in the absence of legislation against it.

39 R. Horovitz is similarly cautious in his responsum regarding organs in synagogues.  See Mattei Levi, vol. 2, Orah Hayyim #6 and the analysis of this responsum by David Ellenson, “The role of Reform in Selected German Jewish Orthodox Responsa: A Sociological Analysis,” in Ellenson, Tradition in Transistion (New York: 1989), pp. 53-56.

40  Rambam, Mishneh Torah, Hilkhot Shabbat 21:1.

41  This understanding resembles the approach of the rishonim who claim that melakhah is forbidden on hol hamoed min haTorah. See Beur Halakhah 530 s.v. umutar.  The Lehem Mishneh ad loc rejects this understanding of the Maggid Mishneh because it suggests that the category of shevut then becomes de’oraita.  Nevertheless the Lehem Mishneh’s alternative interpretation is even less supportive of the Hatam Sofer’s understanding of Ramban.

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