meta: {"file": "/data/tomer/Sefaria-Export/txt_done/Modern Works/Gray Matter III/English/merged.txt"}
text: Gray Matter III
  גריי מאטר ג
  merged
  
  This file contains merged sections from the following text versions:
  -Gray Matter, by Chaim Jachter. Teaneck, N.J, 2000-2012
  -
  
  Gray Matter III
  
  Music
  
  Jewish Perspectives on Music
  
  Cultural activities often constitute a defining characteristic of a society, and they certainly represent a large percentage of many people’s leisure pursuits. In the next few chapters, we will discuss Jewish perspectives on one such activity, namely, the propriety of enjoying various forms of music. Of course, the ideas we will share apply to a great extent to all leisure activities.
  General Perspectives on Music
  Before we explore the halachic issues concerning music, we should review some basic ideas about it from the <i>Tanach</i> and Gemara, which are replete with illustrations of the major role that song and music can play. After the splitting of the Yam Suf, for example, Moshe Rabbeinu led the Jewish men in song, and Miriam likewise led the women. The <i>levi’im</i> accompanied the service in the <i>Beit Hamikdash</i> with singing and musical instrumentation, an important aspect of the service and one that we mention in our daily prayers. The Gemara (Megillah 32a, see <i>Tosafot</i> ad. loc. s.v. <i>V’hashoneh</i>) strongly encourages us to sing the Torah we study. As these and other sources indicate, music is a central element in many aspects of Torah life.
  Two sources in particular demonstrate the great importance that the Torah ascribes to music. The first is the Torah’s description (Bereishit 4:20-22) of some of humanity’s first great accomplishments and advances. Included in this list are the breeding of cattle, the use of iron and copper implements (see Targum Onkelos ad. loc.), and the development of music. This shows that the Torah regards music as a core achievement of mankind.
  The second source is a powerful Gemara (Chagigah 15b, see Rashi and Maharshah ad. loc.), which wonders how the great Tanna (scholar of the Mishanic period) Elisha ben Avuyah lost his faith. Why did his great knowledge of Torah fail to prevent him from abandoning the Torah? The Gemara answers that it was because “Greek music never ceased to emerge from his mouth.” The lesson is obvious. Music has a profound effect on both the individual and the community. The negative impact of some popular music on society during the past forty years is a contemporary example of this phenomenon. Music can constitute a crowning achievement, drawing us closer to Hashem and His holy Torah, but it also has the potential, God forbid, to lead us astray. With this idea in mind, let us explore some of the halachic issues concerning music.
  Talmudic Sources
  In light of the above, it is not surprising to find that <i>Chazal</i> issued a number of restrictions regarding music. The Mishnah (Sotah 9:11) records that when the Sanhedrin (high rabinnic court) ceased to function, <i>Chazal</i> forbade song in the wine houses. The Yerushalmi (Sotah 9:12) explains the reason for this decree: “At first, people feared the authority of the Sanhedrin and would not introduce inappropriate content in song, but now [that the Sanhedrin has ceased to function], people no longer fear its authority and would introduce corrupt lyrics into music.”
  The Gemara (Sotah 48a), in keeping with this theme, declares that the song of the ship workers and the farmers is permitted, but the song of the weavers is forbidden. Rashi (ad. loc. s.v. <i>Zimri D’nagdei</i>) explains that the permitted songs were not frivolous – they helped the workers and animals perform their tasks. The weavers’ songs, on the other hand, were forbidden because they served no constructive purpose – they were entirely frivolous.
  The Gemara elsewhere (Gittin 7a) presents a seemingly more drastic prohibition. It records that <i>Chazal</i> simply forbade listening to all music subsequent to the <i>churban</i> (destruction) of the <i>Beit Hamikdash</i>.
  <i>Rishonim</i> – Rashi, <i>Tosafot</i>, and the Rambam<i></i>
  The <i>Rishonim</i> debate to what extent the Rabbis prohibited the enjoyment of music in the post-<i>churban</i> era. Rashi (Gittin 7a s.v. <i>Zimra</i>) indicates that the prohibition is limited to singing in a tavern. <i>Tosafot</i> (<i>ibid</i>. s.v. <i>Zimra Mina Lan D’assur</i>) support Rashi’s contention based on the aforementioned Mishnah in Sotah. <i>Tosafot</i> argue that this source leads us to conclude that the prohibition applies only to playing music in a drinking house.
  <i>Tosafot</i> also add two important qualifications. First, they state that it is inappropriate to listen to music excessively, regardless of the context. As proof, they cite an anecdote that appears in the Yerushalmi (Megillah 3:2) in which Mar Ukva chastised the <i>Reish Galuta </i>(Exilarch) for listening to music when “going to sleep and waking up” – i.e., excessively.1<i class="footnote">On this basis, Rav Shlomo Zalman Auerbach (<i>Halichot Shlomo </i>1:13:18, <i>Devar Halachah</i> 28) rules that it is forbidden to wake up to an alarm clock that plays music, as this is considered “excessive.”</i>
  Second, <i>Tosafot</i> assert that music that is played in the context of a <i>mitzvah</i>, such as at a wedding celebration, is entirely permissible. The Rambam (<i>Hilchot Ta’aniyot</i> 5:14), despite the general stringency of his rulings on this issue (see below), similarly writes that it is permissible to play music of a religious nature. This exception dates back at least to the Geonic era, as Rav Hai Gaon (cited by the Rif, Berachot 21b in the pages of the Rif) espouses this approach. The Shulchan Aruch (O.C. 560:3) codifies this ruling uncontested.
  Although Rashi and <i>Tosafot</i> rule fairly leniently on this issue, permitting listening to music on a moderate basis outside of taverns, the Rambam adopts a much stricter approach. He writes (<i>Hilchot Ta’aniyot</i> 5:14) that instrumental music (other than religious music) is entirely forbidden, and even vocal music without instrumental accompaniment is prohibited if it is in the context of wine consumption. The <i>Tur</i> (O.C. 560) cites a responsum of the Rambam in which he adopts an even stricter stand, prohibiting even vocal music unaccompanied by instruments and not sung in the context of wine-drinking.
  <i>Shulchan Aruch</i> and Its Commentaries<i></i>
  The dispute between the Rambam and Rashi/<i>Tosafot</i> has remained a matter of controversy in every subsequent generation, even to this day. The Shulchan Aruch (O.C. 560:3) rules in accordance with the Rambam’s view as presented in <i>Hilchot Ta’aniyot</i>, but the Rama cites the opinion of Rashi and <i>Tosafot</i>. The Magen Avraham (560:9) cites the <i>Bach</i>, who rules even more strictly, positing that the Rambam’s view as set forth in his responsum is normative. Accordingly, they rule that music is always forbidden unless it is of religious content and nature.
  In addition, the Sha’ar Hatziyun (560:23) cites the Rama’s (<i>Hagahot Mordechai</i>,<i> Gittin </i>1:1) position that even playing music over wine is prohibited only if wine is the only thing being served. If there is a meal being served with the wine, it is permissible to play music. He writes that “perhaps” one need not protest against those who rely on this position.
  Nineteenth-Century Codes
  The great nineteenth-century authorities continued to debate this issue. While the <i>Chayei Adam</i> (137:3) and Mishnah Berurah (560:13) cite the ruling of the Magen Avraham and <i>Bach</i> as normative, the <i>Aruch Hashulchan</i> (560:7) seems to adopt a more lenient approach. He does not cite the opinion of the Magen Avraham and <i>Bach</i>, but he does cite the opinion of the Rama. Whereas the former two authorities are critical of women who sing while doing their work,2<i class="footnote">This ctitique is independent of the prohibition for a man to listen to a woman sing (<i>kol ishah</i>).</i> the <i>Aruch Hashulchan</i> does not criticize them. He appears to regard the lenient approach of Rashi and <i>Tosafot</i> as acceptable.
  Contemporary Authorities
  Contemporary authorities, as well, have disagreed about this question. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:166) adopts a fairly strict stance concerning this matter. Although he writes that one is not required to follow the most stringent opinion of the Magen Avraham and <i>Bach</i>, he regards the strict opinion of the Shulchan Aruch to be normative. On the other hand, Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 15:33) endorses the common practice to follow the ruling of the Rama that music in moderation is permitted outside a tavern. Rav Yehudah Amital told me that he agrees with Rav Waldenberg. In addition, even Rav Moshe (<i>Teshuvot Igrot Moshe</i> O.C. 3:87) writes that one should not object to someone who follows the ruling of the Rama regarding music.3<i class="footnote">We should note that the traditional custom in Jerusalem is not to play music even at weddings; the only music is a drummer who also sings. For a discussion of this custom, see <i>Teshuvot Salmat Chaim </i>1:77 and<i> Teshuvot Tzitz Eliezer </i>15:33:3.</i>
  Possible Exceptions
  An interesting argument appears in Rav Yaakov Breisch’s responsum on this issue (<i>Teshuvot Chelkat Yaakov</i> 1:62). He suggests that even according to the Magen Avraham and <i>Bach</i>, this prohibition applies only to live music, but not to recorded music. This ruling has been applied in practice by some individuals to the periods of time during which it is our custom to refrain from listening to music, such as during <i>sefirat ha’omer</i>,4<i class="footnote">See <i>Aruch Hashulchan</i> (O.C. 493:2), <i>Teshuvot Igrot Moshe</i> (O.C. 3:87), <i>Teshuvot Minchat Yitzchak </i>(1:111), and <i>Teshuvot Yechaveh Da’at</i> (3:30) for an assessment of the sources for this custom.</i> The Three Weeks,5<i class="footnote">Rav Moshe Bleich summarizes the various opinions on this topic in <i>Tradition</i> (41:1:11-15).</i> and the twelve-month mourning period for a parent. However, Rav Moshe Feinstein (in his aforementioned responsum and Y.D. 2:137:2) clearly indicates that he does not subscribe to this approach, as he prohibits instrumental recorded music during <i>sefirat ha’omer</i>. Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 6:34) likewise states explicitly that he does not permit listening to recorded music at any time when live music is prohibited.6<i class="footnote">Rav Dov Brisman (<i>Teshuvot Shalmei Chovah </i>O.C. 78) writes that the accepted practice has become to forbid listening to recorded music during <i>sefirat ha’omer</i> and The Three Weeks. Similarly, Rav Moshe Bleich (<i>Tradition </i>41:1:20) concludes, “The consensus of halakhic opinion is that taped music is forbidden during <i>sefira</i> and the Three Weeks.” We should note that Rav Yosef Dov Soloveitchik (reported by Rav Aharon Lichtenstein) believes that music was not forbidden at all during these time periods, but most <i>poskim</i> do not share this view.</i>
  Rav Shmuel David (<i>Techumin</i> 13:187) suggests another possible exception to this prohibition. He contends that classical music is not necessarily included in the post-<i>churban</i> rabbinic decree against listening to music. He bases this suggestion on the Maharshal (<i>Yam Shel Shlomo</i>, Gittin 1:17), who writes that listening to music “to hear pleasant sounds or to hear something fresh” is permitted.7<i class="footnote">It is reported in the name of Rav Yosef Dov Soloveitchik that classical music was not included in the rabbinic decree. The decree, in Rav Soloveitchik’s view, applies only to music of revelry.</i>
  Conclusion
  Despite music’s central role in Jewish beliefs and practices, Halachah imposes definite restrictions on listening to it. The general practice tends to follow those <i>poskim</i> who permit listening to at least some forms of music, but other forms, such as drinking songs, are universally prohibited. Though the exact parameters and applicability of the restrictions remain unresolved, it is clear that whatever we do listen to must be compatible with a Torah <i>hashkafah</i> (worldview).8<i class="footnote">Dr. Shalom Buchbinder and Dr. Jason DiPoce have co-authored an (as yet unpublished) essay outlining the dangers and halachic problems associated with playing music loudly. One should exercise moderation and caution not only regarding the content of the music he chooses to listen to, but also in the realm of how he listens to it.</i>
  
  Torah Passages in Song
  
  A Strict Ruling
  An interesting article appears in the 5754 edition of <i>Beit Yitzchak</i>. In this essay, Rav Yosef Levenbrown seeks to demonstrate that it is forbidden to sing or listen to songs whose lyrics are derived from Torah sources unless they are conducted in the context of a <i>mitzvah</i>, such as Shabbat, <i>Yom Tov</i>, or a wedding. In fact, he concludes with the following citation from Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe </i>Y.D. 1:173, written in 1957): “In my humble opinion, it is forbidden <i>l’chatchilah </i>(ideally) to make records of [songs whose lyrics are from] <i>pesukim</i> purely for listening enjoyment.”
  This ruling is based on the Gemara (Sanhedrin 101a) that states:
  One who reads a <i>pasuk</i> from Shir Hashirim and transforms it into a sort of song or sings a <i>pasuk</i> in a party house (<i>beit hamishta’ot</i>) at an inappropriate time brings evil to the world, since the Torah wears sackcloth and complains before Hashem, “Your children have made me into a musical instrument that is played by scorners (<i>leitzim</i>).”
  Although this passage is not quoted by the Rambam, the Shulchan Aruch, 1<i class="footnote">This omission is quite puzzling in light of the fact that both the Rif (Berachot 21b and Sanhedrin 19b-20a in the Rif’s pages) and the Rosh (Berachot 5:1 and Sanhedrin 11:3) cite this passage as normative.</i> or the Rama, the Magen Avraham (560:10) cites from the Maharil that it is improper to use <i>pesukim</i> as lyrics for songs that are sung at a “<i>simchat merei’ut</i>” (social gathering). The Taz (O.C 560:5) adopts a similar approach, and the Mishnah Berurah (560:14) and the <i>Aruch Hashulchan</i> (O.C. 560:7) cite the words of the Magen Avraham as normative.
  Nonetheless, the very widespread practice today among observant Jews is to sing and listen to music whose lyrics are from Torah sources. Indeed, even Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:142, written in 1963) acknowledges:
  Many are lenient and listen to tapes [of music whose lyrics are from Torah passages], and even in the previous generation, people would play records of music whose lyrics were derived from Torah passages, and the rabbis of that generation did not protest. And we see [today] that most people listen to such music, including even the most pious of individuals.
  Rav Moshe thus relaxes his strict stance on this matter and advises only those who are <i>ba’alei nefesh</i> (individuals who are exceptionally scrupulous in their observance of Halachah) to avoid listening to “Torah songs” if they are merely for enjoyment. In this chapter, we shall marshal four defenses for the common practice of the overwhelming majority of the observant community to listen to Torah passages set to music.
  Justification One - Shir Hashirim
  Rav Moshe (in his more lenient responsum) suggests that those who are lenient might argue that the Gemara refers only to Shir Hashirim, as there is more concern that the verses from this <i>sefer</i> might be misinterpreted as a simple love song between a man and a woman rather than as an allegory of the love between Hashem and <i>Am Yisrael </i>(the Jewish people), as <i>Chazal</i> interpret it. Rav Moshe notes that the difficulty with this approach is that Rashi (Sanhedrin 101a s.v. <i>Hachi Garsinan</i> and s.v. <i>Hakorei</i>) implies that this prohibition applies to all of the Torah.2<i class="footnote">According to Rashi, the Gemara chose the example of Shir Hashirim because one might have thought that the <i>pesukim</i> of this <i>sefer</i> should be allowed to be made into a song, as they originally were written as one.</i>
  Moreover, the <i>Kitzur Piskei Harosh</i> (Sanhedrin 11:3), <i>Ra’avyah</i> (at the beginning of his commentary to the fifth chapter of Berachot), and Maharshah (s.v. <i>Hakorei</i>) agree with Rashi that this issue applies to all Torah passages. Nonetheless, Rav Reuven Margaliyot (<i>Margaliyot Hayam Sanhedrin</i> 101a) cites the <i>Zohar</i> and <i>Avot D’rabi Natan </i>(at the end of chapter 36) as supporting the view that the prohibition is limited to Shir Hashirim. In addition, Rav Mordechai Willig (in a shiur delivered at the Morasha Kollel) noted that the Rivevan (at the beginning of his commentary to the fifth chapter of Berachot s.v. <i>Pasuk</i>) clearly confines the prohibition to verses from Shir Hashirim.3<i class="footnote">Rav Mordechai Willig told me that he once sat next to Rav Yosef Dov Soloveitchik at a wedding ceremony at which the <i>chazzan</i> (cantor) intoned a song from Shir Hashirim. Rav Soloveitchik commented, “<i>Issur gamur mi’dinah d’Gemara</i>” (this is forbidden based on a passage in the Gemara). It is not clear, though, whether Rav Soloveitchik intended to limit the prohibition to Shir Hashirim or merely was commenting on the case at hand. Rav Willig believes that Rav Soloveitchik intended to confine the prohibition to Shir Hashirim, as Rav Soloveitchik never (to his knowledge) objected to any other songs that contained Torah lyrics.</i> On the other hand, the aforementioned Magen Avraham, Taz, and Mishnah Berurah appear to apply this prohibition to all parts of Torah.
  Justification Two - A Mockery
  A much stronger justification for the common practice might be derived from Rashi (ad. loc. s.v. <i>Hakorei</i>). He explains that the Gemara censures one who “while drinking wine, derives his amusement from words of Torah and reads <i>pesukim</i> aloud to amuse those at the party.” Rashi seems to imply that the prohibition applies only when Torah verses are used in a degrading manner, as the language of the Gemara (ad. loc.) seems to suggest. This gives the impression (unlike Rav Moshe) that as long as the music does not degrade the Torah, there is no prohibition, even if one is not listening to the music in the context of performing a <i>mitzvah</i> (such as rejoicing with a <i>chatan</i> and <i>kallah</i>). This limitation of the prohibition also is implied by the comments of the Rambam (Avot 1:17), wherein he writes, “The Torah forbade turning words of prophecy into songs of baseness and inappropriate things.” This indicates that the prohibition exists only if the <i>pesukim</i> are sung in a degrading manner. If, on the other hand, the songs are not of “baseness and inappropriate things,” it would be permissible.
  Indeed, the <i>Yad Ramah</i> (Sanhedrin 101a s.v. <i>Tanu Rabanan) </i>writes that this prohibition exists only if the <i>pesukim</i> are sung “<i>derech sechok</i>” (in a joking or degrading manner), although he cautions that he is unsure about this matter. However, Rav Yaakov Emden4<i class="footnote">Rav Emden’s opinion appears in his comments to Sanhedrin (101a) that recently have been republished in the Vagshal printing of <i>Masechet Sanhedrin</i>, Yerushalayim 5754.</i> states unequivocally that this prohibition applies only if one degrades the Torah verses into a base love song. Indeed, Rav Aharon Lichtenstein endorsed this position in a personal conversation. This might explain why the Rambam, Shulchan Aruch, and Rama omit any mention of this passage in Sanhedrin. They seem to believe that there is no specific prohibition to enjoy listening to Torah music for entertainment purposes. Rather, the Gemara simply articulates a specific example of the general prohibition of degrading our holy Torah.
  Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 3 O.C. 15 and 4 Y.D. 20) also rules that the prohibition applies only if the <i>pesukim</i> are used for love songs or <i>leitzanut</i> (frivolity). He argues that the <i>Yad Ramah</i>’s uncertainty is resolved by the many eminent rabbanim and communities who have adopted the lenient approach to this issue. The <i>Piskei Teshuvot</i> (560:14 notes 68 and 69) cites several authorities that accept this position. Rav Shlomo Zalman Auerbach5<i class="footnote">Rav Shlomo Zalman’s position is reported in <i>Halichot Shlomo</i> (<i>Orach Halachah: Tefillah </i>13 note 72).</i> similarly permits songs that are sung for “<i>hit’orerut</i>” (awakening feelings of closeness to Hashem) even if they contain <i>pesukim</i>.
  Justification Three - Connection to Hashem
  A third defense is that in today’s world, one has a choice of literally thousands of music stations, both on the radio and the internet, as well as innumerable music CDs of a virtually endless array of styles and artists. Accordingly, one who chooses to listen to “Jewish music” is doing so because he wishes to be inspired and deepen his connection to Hashem and His Torah. Such a person could be considered as doing so for <i>mitzvah</i> purposes, not simply for pleasure, and thus all authorities would permit listening to or singing such songs, since even the Magen Avraham, Taz, and Mishnah Berurah permit singing songs with <i>pesukim</i> if they are sung for a <i>mitzvah</i> purpose.
  Indeed, Rav Yehuda Henkin’s concern (<i>Teshuvot Bnei Banim</i> 3:125) that this prohibition is violated when setting Torah lyrics to rock and country songs if the primary intention is for the music and not the Torah lyrics seems to be irrelevant in most cases. If the primary intention was for the music, one simply would procure the original rock and country music.6<i class="footnote">Only rock and country music that does not contain offensive lyrics is permissible to listen to. </i>
  Justification Four - Spiritual Survival
  Rav Yosef Dov Soloveitchik (see the sources cited in <i>Nefesh Harav</i> p. 88) believes that history sometimes can resolve certain halachic and <i>hashkafic</i> disputes, as it indicates the will of Hashem. In this context, Jewish music has proven itself to be a potent component of the critical struggle for Orthodox Jewish cultural survival. In an environment that is saturated with music, much of which is antithetical to Torah values, the existence of a vibrant Jewish music scene is essential as an alternative to the other deleterious options.
  Moreover, establishing a sort of Orthodox subculture is absolutely essential for cultural survival. Rav Yosef Dov Soloveitchik7<i class="footnote">In an essay entitled <i>Confrontation</i>.</i> argues that we must follow the example of Avraham Avinu, who presented himself to his non-Jewish neighbors as a “stranger and a resident” (Bereishit 23:4). We believe that while on one hand we must be “residents” and integrate into the economic, scientific, and certain aspects of the cultural life in our country of residence, we also must be “strangers” and form our own “subculture” in order to survive in a country that is hospitable and inviting. Along with the creation of Orthodox shuls, schools, camps, and youth groups, the world of Jewish music has made an enormous contribution to the creation of this Orthodox subculture.
  Indeed, the powerful impact of music is evident from the Gemara’s assertion (Chagigah 15b; see the comments of Rashi and the Maharshah ad. loc.) that the famous sage Elisha ben Avuyah, lost his faith because “Greek music never stopped emanating from his mouth.” Additionally, the Gemara (Megillah 32a; see <i>Tosafot</i> ad. loc. s.v. <i>V’hashoneh</i>) stresses the importance of singing the Torah that one studies. 8<i class="footnote">See our earlier chapter on Jewish Perspectives on Music.</i> Accordingly, the experience of the past four decades (since Rav Moshe’s second <i>teshuvah</i> was written) teaches that the approach of Rav Moshe’s later <i>teshuvah</i> must be adopted, since Torah songs are an absolutely essential part of Torah life for the overwhelming majority of the members of our community.
  Interestingly, Rav Moshe permits (even in his first, stricter responsum) making records composed of Torah songs if it will help a child learn Torah.9<i class="footnote">This assertion is based on the next passage in the Gemara (Sanhedrin 101a) and Rashi (ad. loc. s.v. <i>Hakorei</i>).</i> Based on this, we may argue that history teaches that Jewish music helps Orthodox Jews to remain Orthodox Jews and is therefore unquestionably permissible.
  Conclusion
  Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 15:33) cites a very compelling comment made by the <i>Teshuvot Halachot Ketanot</i> (1:9). In the course of defending the common practice to recite “<i>shehakol</i>” on coffee rather than “<i>ha’eitz</i>,” he asserts:
  The following is a fundamental principle has been passed to us as a tradition from earlier generations: If a certain Halachah is unclear to you, go and see what the common practice is. This is true because Hashem, in His love for His nation, would not have allowed the broader community to go follow a minority opinion had that authority not articulated a viable approach.10<i class="footnote">See the commentary of the Ramban to Devarim 17:11 for a possible basis for this argument.</i>
  The same can be said for the issue of creating and listening to Torah songs. Those who wish to adopt a strict approach to the issue may do so, but they should not impose this stringency on others, for it is too difficult to bear and even culturally dangerous.
  Postscript
  When I presented the basic ideas of this chapter to Rav Hershel Schachter, the approach “found favor in his eyes,” though he felt that there was room to be <i>machmir</i> (stringent) for those who want to do so. Avi Levinson also presented the key elements of this chapter to Rav Mordechai Willig, who agreed that they were sound. Both Rav Schachter and Rav Willig note that common practice is to adopt the lenient approach to this issue.
  
  Medical Issues
  
  The Prohibition to Smoke
  
  Anecdotal evidence strongly indicates that it has become accepted within some segments of the Orthodox community not to smoke. Indeed, most <i>poskim</i> have unequivocally stated that it is prohibited to smoke. These authorities include Rav David Cohen, Rav Aharon Lichtenstein, Rav Hershel Schachter, Rav Gedalia Schwartz, Rav Ahron Soloveitchik, Rav Mordechai Willig, and the Halacha Committee of the Rabbinical Council of America. Moreover, one of Rav Moshe Feinstein’s leading students, Rav Efraim Greenblatt, rules (<i>Teshuvot Rivevot Efraim </i>8:586) that smoking is prohibited, as do three major Israeli halachic authorities: Rav Chaim David Halevi (<i>Teshuvot Aseih Lecha Rav </i>2:1, 3:18, and 9:28-29), Rav Avigdor Nebenzahl (<i>Assia</i> 5:261), and Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer </i>15:39). Similarly, Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 2:58:6) writes, “I have never joined those who believe that it remains permissible to smoke [on any day] in our times.” Even Rav Ovadia Yosef, who states in his earlier writings (such as <i>Teshuvot Yechaveh Da’at</i> 5:39, published in 1983) merely that it is preferable to refrain from smoking, has concluded that it is completely prohibited to smoke (<i>Halichot Olam</i> 1 pp. 265-266, published in 1998). Finally, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 2:76) writes that it is forbidden to begin the habit of smoking. Although Rav Moshe’s <i>teshuvah </i>explicitly forbids one to smoke only if he did not begin to do so before the ruling was issued, we shall endeavor to prove that, given current medical data, smoking is prohibited even according to Rav Moshe’s standards.
  In this chapter, we shall examine in depth the rulings of these eminent <i>poskim</i> and seek to explain why smoking is unquestionably forbidden.
  Smoking on <i>Yom Tov</i>
  <i>Poskim</i> began to discuss the halachic propriety of smoking in the eighteenth century. At first, they did not discuss health concerns, as smoking was not, generally speaking, known at the time to pose any,1<i class="footnote">Dr. Fred Rosner (<i>The Jounral of Halacha and Contemporary Society</i>, Fall 1982 p. 33) points out that “Tobacco was first implicated as a cause of cancer in 1761,” but it is possible that this information was not widely known or accepted.</i> but they did debate the permissibility of smoking on <i>Yom Tov</i>.
  The Torah (Shemot 12:16) permits <i>hav’arah</i> (kindling a fire) on <i>Yom Tov</i>, but <i>Chazal</i> (see Bei’ur Halachah 502:1 s.v. <i>Ein</i>) forbade creating a new flame. Hence, when we light any fire on <i>Yom Tov</i>, we light it from a preexisting flame. Even on a Torah level, however, it is forbidden to burn incense on <i>Yom Tov</i> (Beitzah 22b and Shulchan Aruch O.C. 511:4), because Halachah does not permit any <i>melachah </i>(creative activity) that is not <i>shaveh l’chol nefesh</i> (customarily enjoyed by all). Burning incense is regarded as an exotic luxury and therefore is not a permissible form of <i>hav’arah</i> on <i>Yom Tov</i>.
  <i>Poskim</i> in the eighteenth century began to debate whether smoking is considered <i>shaveh l’chol nefesh</i>. The <i>Korban Netanel</i> (Beitzah 2:10) forcefully argues that smoking is not <i>shaveh l’chol nefesh</i>, pointing out that if one who is not accustomed to smoke were to begin smoking on <i>Yom Tov</i>, he would become ill and disoriented. This demonstrates that smoking is not universally enjoyed. The <i>Chayei Adam </i>(95:13) also prohibits smoking on <i>Yom Tov</i>. The Bei’ur Halachah (511:4 s.v. <i>Ein Osin</i>), on the other hand, presents many <i>Acharonim</i>2<i class="footnote">He makes reference to the <i>Sha’arei Teshuvah</i> (511:5), who quotes, among others, the <i>Chacham Tzvi</i>. This position also is espoused by the <i>Pnei Yehoshua</i> (Shabbat 39b s.v. <i>Omnam</i>), who, along with several other <i>Acharonim</i>, is cited approvingly by the <i>Sha’arei Teshuvah</i> (210:9). </i> who permit it. These <i>poskim</i>, the Bei’ur Halachah explains, believe that “Now that many people are accustomed to this, it has become <i>shaveh l’chol nefesh</i>.”
  Interestingly, the <i>Sha’arei Teshuvah</i> (511:5, cited in the Bei’ur Halachah) observes that some (outside of Israel) refrain from smoking on the first day of <i>Yom Tov</i> but smoke on the second day. This practice emerges from the Talmudic rule that one should be strict regarding a Torah matter and but may be lenient regarding a rabbinic matter. Since the observance of the second day of <i>Yom Tov</i> outside of Israel is only a rabbinic obligation, one may be lenient regarding an activity disputed by the <i>poskim</i>. The <i>Aruch Hashulchan</i> (O.C. 511:11) criticizes this practice, arguing that it diminishes the dignity of the second day of <i>Yom Tov</i>. Indeed, <i>Chazal</i> strove to ensure that we not take the observance of the second day of <i>Yom Tov</i> lightly (see, for example, Shabbat 23a).
  Smoking on <i>Yom Tov</i> Nowadays
  Many in prior generations, as is well-known, followed the lenient opinion in practice. However, the dramatically lower percentage of people who smoke today, resulting from the great health risks that smoking entails, has prompted <i>poskim </i>to reexamine this matter. Rav Simcha Bunim Cohen (<i>The Laws of Yom Tov</i> p. 106 footnote 1) observes, “In the United States, it should certainly be forbidden to smoke according to all opinions, as the overwhelming majority refrains from smoking.” He cites (p. 108 footnote 3) the precedents of Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo </i>2:58:6) and Rav Yosef Shalom Eliashiv (quoted in <i>Sefer Hazikaron Mevakshei Torah</i> 1:264), who both rule that today it is forbidden to smoke on <i>Yom Tov</i>. Rav Zalman Nechemia Goldberg (in a responsum printed in <i>Pe’eir Tachat Eifer </i>p. 52) also agrees with this position.
  Additionally, Rav Moshe Shternbuch (<i>Teshuvot V’hanhagot</i> 1:316) argues that since we rely on doctors’ opinions in many serious areas of Halachah, such as the need for a sick individual to eat on Yom Kippur,3<i class="footnote">See our later chapter for more on this topic.</i> we certainly should follow their advice to refrain from smoking, which is merely a recreational activity. Rav Shternbuch believes that the <i>Acharonim</i> who permitted smoking on <i>Yom Tov</i> would not have issued tolerant rulings in the current climate, in which it is accepted that smoking poses a grave health hazard.4<i class="footnote">Rav Shternbuch, in this context writes, “I testify about an eminent Torah scholar who smoked heavily and was struck, Heaven forfend, with lung cancer. A short time before his death, he gathered a <i>minyan</i> of people and proclaimed, ‘I recognize that I caused this sickness and that I am going to die because of my smoking, and I fear that I will be judged by Heaven with the punishment meted out to one who commits suicide, Heaven forfend. Therefore, I seek for my soul some rectification; I ask you to zealously avoid smoking, as it constitutes a very serious prohibition, and with this I hope that since I have thereby brought merit to the community, the Holy One, blessed be He, will ease my punishment’”</i>
  Avoiding Danger Year-Round – <i>V’nishmartem Me’od L’nafshoteichem</i>
  The question of whether smoking is prohibited not only on <i>Yom Tov</i> but at all times hinges upon the general halachic requirement that we refrain from dangerous and unhealthy activities. The source for this requirement is Devarim 4:15, where we are instructed, “<i>V’nishmartem me’od l’nafshoteichem</i>,” “You shall guard your souls exceedingly carefully.”5<i class="footnote">For a full discussion of this matter, see the essay written by Dr. Shalom Buchbinder and Dr. James DiPoce in <i>The Journal of Halacha and Contemporary Society</i> 42:70-99.</i> The Rambam seems to divide this requirement into two different categories. He lists (<i>Hilchot Dei’ot</i> 4:1) certain foods and activities that, because they weaken the body, one needs (“<i>tzarich</i>”) to avoid, but also mentions (<i>Hilchot Rotzeiach Ushmirat Nefesh</i> 11:5) numerous dangerous activities that <i>Chazal</i> outright prohibited. The activities listed in <i>Hilchot Rotzeiach Ushmirat Nefesh</i> appear to be strictly forbidden, while those in <i>Hilchot Dei’ot</i> seem to be discouraged, but not technically forbidden. Rav Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 15:39) understands that this is because the former are far more dangerous than the latter. Thus, while it is technically prohibited to drink from water in which a snake may have placed its venom, it is not outright prohibited to overindulge in fattening foods.
  “Hashem Preserves the Fools”
  Into which of these two categories should we place smoking? One way to distinguish between the two categories is the litmus test suggested by the Gemara in a number of places (Shabbat 129b, Yevamot 12b, and Niddah 31b). The Gemara permits certain activities that involve some risk, positing that “Since the multitudes have trodden upon this matter, [the <i>pasuk</i>] ‘Hashem protects the foolish’ (<i>Tehillim</i> 116:6) [applies].” This Gemara teaches that Halachah has allowed reasonable members of society to define the parameters of the prohibition to engage in risky activities; Halachah permits activities that such people judge to involve a tolerable risk. Based on this standard, <i>Teshuvot Chelkat Yaakov</i> (3:11) writes that it is permissible to travel in an airplane or car even though there is some risk involved.6<i class="footnote">For further explanation of the concept of Hashem protecting the foolish, see Rav Shlomo Cohen-Duras’s discussion of hazardous sporting activities (<i>Techumin</i> 22:120-126) and our chapters about hazardous medical procedures and cosmetic surgery.</i>
  Accordingly, if smoking is included within the “Hashem protects the fools” principle, it should be avoided, but cannot technically be categorized as prohibited. If it is not included within this principle, on the other hand, then it is unequivocally forbidden.
  When Does “Hashem Preserves the Fools” Apply?
  Two great later <i>Acharonim</i> offer definitions of the parameters of the “Hashem preserves the fools” principle. Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 1:23) seems to believe that it applies only when the danger is minimal and results in disaster in only a small minority of cases. According to this standard, airplane travel is acceptable,7<i class="footnote">Rav Ahron Soloveitchik stated as much in a shiur he delivered at Yeshiva University in 1986.</i> whereas cigarette smoking is forbidden, since it involves much more than minimal danger.
  It seems, however, that Halachah tolerates greater risk-taking in case of great need. For example, the Gemara (Bava Metzia 112b) notes without criticism that people risk their lives working high up in trees to earn a living. Apparently, <i>Chazal</i> permit a person to risk his life in order to earn a living, even though such risks would not be tolerated if taken merely for recreation. Accordingly, Rav Yechezkel Landau (<i>Teshuvot Noda Biy’hudah</i> 2 Y.D. 10) permits hunting animals to earn a living but forbids recreational hunting.8<i class="footnote">This Gemara seems to permit entering professions that involve risk to life, such as coal mining and serving as a physician. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 1:104) and Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 9:17:5:9) do not limit the <i>Noda Biy’huda</i>’s permissive ruling to a situation in which one does not have any other way to earn a livelihood.</i> Similarly, since smoking is a recreational activity, Halachah is less tolerant of the risks involved.
  Rav Yaakov Ettlinger (<i>Teshuvot Binyan Tzion</i> 1:137, written in the nineteenth century), in discussing the permissibility of embarking on a sea voyage or a trip across the desert, offers a different definition of “tolerable risk.” He distinguishes between an immediate danger and a long-term danger. Whereas an immediate danger is prohibited in all situations, a future danger may be risked if, in the majority of cases, it can reasonably be expected that no harm will result.
  Rav Moshe’s Application of the Principle to Smoking
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 2:76, published in 1981) writes that smoking should be discouraged, like all other unhealthy habits, as the Rambam states in the fourth chapter of <i>Hilchot Dei’ot </i>(as we discussed above). However, smoking cannot technically be declared forbidden, since only a minority of smokers is afflicted with health problems as a result of the habit. In such circumstances, the “Hashem preserves the fools” principle applies. This argument appears to be in harmony with the <i>Binyan Tzion</i>’s criterion for forbidden dangerous activities.
  Rav Moshe’s lenient ruling seems no longer to apply, as current research indicates that a majority of smokers will suffer ill effects from this unhealthy habit. Rav J. David Bleich writes (<i>Tradition</i> 37:3:97) that according to “presently available evidence, it appears that the cumulative risks of lung cancer, cardiovascular disease and respiratory illnesses will, in the aggregate, foreshorten the lives of a majority of smokers.” Indeed, Dr. Jeffrey Berman9<i class="footnote">Dr. Berman is an expert on recovery from addiction (including smoking) at the Robert Wood Johnson Medical Center in New Jersey.</i> reports that a staggering eighty-five percent of smokers will suffer health problems as a result of their habit.10<i class="footnote">In its ruling, the Halacha Committee of the Rabbinical Council of America cites the <i>British Medical Journal</i> (June 22, 2004, available at www.bmj.com), which reports, based on a fifty-year study, that smokers die, on average, ten years younger than non-smokers, with between one half and two thirds of those who begin smoking during their youth dying from this habit.</i>
  Moreover, Rav Bleich notes (ad. loc. p. 96) that the Gemara applies the “Hashem preserves the fools” principle only when the behavior is “trodden upon by the multitudes.” Although smoking was a path well-trodden by the multitudes when Rav Moshe wrote his original lenient responsum (<i>Teshuvot Igrot Moshe</i> Y.D. 2:49) in 1964, Rav Bleich contends “It is more than likely that, at present, that condition no longer obtains.” In its ruling, the Halacha Committee of the Rabbinical Council of America reports that only about twenty-five percent of Americans currently smoke.11<i class="footnote">The Committee also reports that studies show that in the early-mid 1960s, over fifty percent of adult males were smokers.</i>
  This contrasts sharply with what Rav Bleich wrote in an earlier issue of <i>Tradition</i> (16:4:122-123): “There is little doubt that although the road is fraught with danger it is – at least for the present – indeed a path well-trodden by the multitude.…Since even in light of presently available evidence it appears that the majority of smokers do not compromise their health and do not face premature death as a result of cigarette smoking there is, according to <i>Binyan Zion</i>’s thesis, no halakhic reason to ban this activity.” The contrast between Rav Bleich’s writings in 1977 and 2003 demonstrates that the reality and available information have changed dramatically between these years, and thus Rav Moshe’s responsum from 1981 probably does not reflect the scientific evidence presently available.
  Furthermore, Rav Moshe’s student, Rav Efraim Greenblatt (<i>Teshuvot Rivevot Efraim </i>8:586, printed in 1998), observes that society no longer regards smoking as a tolerable risk. Smoking is outlawed even in bars, despite the fact that imbibing considerable quantities of alcohol is tolerated. Clearly, Rav Moshe’s somewhat lenient ruling about smoking is no longer in effect, as medical information and societal standards have changed.
  Rav Moshe Feinstein’s Prohibition to Begin Smoking After 1981
  Although Rav Moshe did not prohibit smoking entirely, even he agrees that it is forbidden to smoke if one did not begin the habit before 1981.12<i class="footnote">Rav Moshe presumably would require one who began smoking after the time of his ruling to quit. </i> He explains that it is forbidden to habituate oneself to and develop a desire for frivolous worldly pleasures. Rav Moshe also discusses this idea in another responsum (<i>Teshuvot Igrot Moshe</i> Y.D. 3:35), in which he rules that it is forbidden to smoke marijuana or use any other illegal drug. His source is the concept of the <i>ben soreir u’moreh </i>(see Devarim 21:18-21), a rebellious son who is punished for developing frivolous worldly desires (see Sanhedrin 68b).
  Other Arguments Against Smoking
  Many <i>poskim</i> advance even stronger rationales to proscribe smoking. “Who would lie down in the middle of the street,” Rav Greenblatt argues, “and claim ‘Hashem protects the fools?!’ Certainly, smoking is just such a suicidal act and is absolutely prohibited. Smoking is definitely forbidden and there is no halachic justification for it….I have spoken to <i>gedolim</i> and <i>poskim</i> who agree with my conclusion.” Rav Chaim David Halevi (<i>Teshuvot Aseih Lecha Rav</i> 3:18) similarly labels smoking as “slow suicide.” Additionally, Rav Avigdor Nebenzahl argues (<i>Assia</i> 5:261) that we cannot apply the “Hashem protects the fools” principle when we clearly witness that it is not Hashem’s will to protect those who indulge in the activity in question.
  Even the <i>Chafetz Chaim</i>, argues Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer </i>15:39), would agree, despite having permitted smoking on <i>Yom Tov</i>, 13<i class="footnote">The <i>Chafetz Chaim</i> is also the author of the Mishnah Berurah, whom we cited above as permitting smoking on <i>Yom Tov</i>.</i> that under today’s circumstances smoking is prohibited. Rav Waldenberg cites the <i>Chafetz Chaim</i>’s assertion (<i>Likutei Amarim </i>chapter 13 and <i>Zechor L’miriam </i>chapter 23) that it is forbidden for “weak individuals” to smoke given that doctors have concluded that smoking further weakens and endangers those who are already weak. The logical conclusion from the <i>Chafetz Chaim</i>’s assertion is that he would require everyone to adhere to contemporary doctors’ warnings to refrain from smoking, since doctors currently believe that smoking endangers even those who have a strong constitution. It is important to note that Rav Shmuel Wosner (in a letter written in 2000) also writes that it is completely forbidden to begin to smoke and that cigar smoking is included in this prohibition. It seems that he includes pipe smoking as well, as he writes about smoking “cigars, cigarettes, etc.” Rav Wosner also writes that one who already has begun to smoke should make every effort to wean himself from this bad habit.
  The Importance of Avoiding Forbidden Risks
  Halachah regards taking forbidden risks very seriously. The Shulchan Aruch (C.M. 427:10) writes that whoever endangers himself and claims, “Why should others care about my endangering myself if I do not care about it?” should receive <i>makkat mardut</i> (disciplinary lashes) – but whoever refrains from dangerous activities will receive “a blessing of good.” The Torah does not believe that one can do as he pleases with his body; rather, as we state in <i>Selichot</i>, “<i>Haneshamah lach v’haguf pa’olach</i>,” “The soul is Your’s (Hashem’s) and the body is Your handiwork.” In several places in the liturgy, we quote chapter 24 of <i>Tehillim</i>, which begins with the declaration that the entire world belongs to Hashem because He created it. In this vein, the <i>Chafetz Chaim</i> writes that if doctors tell someone that he must stop smoking, he must obey the order, because “How may a slave choose to do as he pleases if he belongs to his Master?”
  The <i>Be’ier HaGolah</i>, commenting on the aforementioned citation from the Shulchan Aruch, offers an explanation for why Halachah forbids us to engage in dangerous activities. Hashem, in His kindness, created the world to benefit His creations – for them to recognize His greatness, worship Him by observing Torah and <i>mitzvot</i>, and earn reward for their positive efforts. One who endangers himself spurns the will of his Creator by implying that he does not want to serve Him and to be rewarded by Him. There can be no greater denigration of and disregard for our Maker than this.
  The <i>Chillul Hashem</i> Argument
  Rav Chaim David Halevi (<i>Teshuvot Aseih Lecha Rav</i> 3:18) advances another argument to forbid smoking. He writes:
  In enlightened countries, smoking is banned in public places, commercial advertisements of smoking are banned, and manufacturers of cigarettes are compelled to print health warnings on every pack of cigarettes. Should we, whose holy Torah is a “<i>Torat Chaim</i>” (a life-giving Torah), lag behind?
  In a number of places, the Torah presents us with the mission of serving as a role model for other nations.14<i class="footnote">See Shemot 19:6, <i>Seforno</i>’s comments ad. loc., and Devarim 4:6.</i> Indeed, part of every Jew’s role is to emulate the <i>kiddush Hashem </i>created by Avraham Avinu, who is referred to by his Hittite neighbors as “a prince of God amongst us” (Bereishit 23:6). <i>Chazal</i> regard a <i>chillul Hashem </i>as such a major infraction (see, for example, Yoma 86a) because setting a positive example for others is at the core of the mission of the Jewish people.
  Accordingly, the sight of an observant Jew smoking in our time constitutes a <i>chillul Hashem</i>, and it certainly does not create the impression of “a knowledgable and wise nation” (Devarim 4:6).
  Why Do Some Pious Jews Smoke?
  When smokers are informed that so many great rabbis rule that smoking is forbidden, they inevitably ask why some pious Jews smoke. A response is that this reality is changing, as, in addition to those cited earlier, many <i>poskim</i> (for example, the Debrecziner Rav, <i>Teshuvot Be’eir Moshe</i> 6:160:9) have either declared smoking to be prohibited or have stated (in 2000) in a joint letter that one is obligated to make all efforts to stop smoking. The <i>gedolim </i>who have signed this letter include Rav Yosef Shalom Eliashiv,15<i class="footnote">Note the dramatic change from what Rav Eliashiv wrote in 1981 in a <i>teshuvah</i> that is printed in <i>Kovetz Teshuvot </i>1:219.</i> Rav Aharon Yehudah Leib Shteinman, Rav Nissim Karelitz, and Rav Shmuel Auerbach. Rav Shlomo Wolbe (in a letter dated 1987), in an impassioned plea to cease smoking, stresses the point that each cigarette that one smokes reduces one’s life expectancy by five minutes. <i>The Jewish Observer</i> (November 2007) even published an article strongly discouraging smoking, citing at some length the ruling of the Halacha Committee of the Rabbincal Council of America.16<i class="footnote">Rav Gidon Weitzman reports that Rav Dr. Mordechai Halperin stated (at a conference held by the Puah Institute of Jerusalem) that Rav Shlomo Zalman Auerbach ruled that one who smokes violates the Torah obligation to guard his health (<i>“V’nishmartem me’od l’nafshoteichem</i>”) and is <i>pasul l’eidut</i> (disqualified from giving testimony). Disqualifying a smoker from giving testimony appears difficult in light of Shulchan Aruch C.M. 34:3 and <i>Teshuvot Rav Akiva Eiger</i> 96.</i>
  Is <i>Oness</i> an Excuse?17<i class="footnote">I acknowledge Rav Asher Bush’s assistance in developing this approach.</i>
  Many smokers seek to excuse their behavior by stating that they are <i>anusim</i>, in effect coerced to smoke, since it is so difficult to free oneself from this addictive habit. In general, Halachah excuses one from sins committed under duress (see Devarim 22:26 and Ketubot 3a). This defense does not apply here, however, as smokers were not forced to begin smoking. The <i>Chafetz Chaim</i> (<i>Likutei Amarim </i>chapter 13 and<i> Zechor L’miriam </i>chapter 23) chides smokers who seek to excuse their behavior on the grounds that it is difficult to stop smoking, arguing that they had no right to start. As proof to his assertion, the <i>Chafetz Chaim</i> cites the Gemara (<i>Bava Kama </i>92) that states that one is not permitted to harm himself.
  In addition, Halachah forbids one to voluntarily put himself into a situation that likely will require him to violate Halachah later. For example, the <i>Ba’al Hama’or</i> (Shabbat 7a in the pages of the Rif) writes that one is forbidden to deliberately put himself into a situation that will necessitate desecrating Shabbat to save a life. Based on the <i>Ba’al Hama’or</i>’s assertion, Rav Moshe Feinstein forbids choosing to undergo elective surgery three days before Shabbat.18<i class="footnote">See <i>Gray Matter 2</i> p. 22.</i> The Rambam (<i>Hilchot Yesodei Hatorah</i> 5:4) strongly condemns those who choose to remain in positions in which they will be coerced to violate the Torah. In fact, the confession we make on the <i>Yom Kippur </i>about sins committed <i>b’oness</i> (under duress) refers, according to <i>Siddur Hagra</i>, to cases where we willingly put ourselves into situations in which we were then coerced to sin.19<i class="footnote">For further discussion of the prohibition to willingly enter a situation in which one will be coerced to sin, see Rav Yosef Dov Soloveitchik’s responsum regarding the propriety of rabbis volunteering to serve as chaplains in the United States Armed Forces (<i>Community, Covenant, and Commitment </i>pp. 23-67).</i>
  In the context of the Halachot of <i>gittin </i>(Shulchan Aruch E.H. 134:4; see Pitchei Teshuvah E.H. 50:8), the Rama rules that a husband who gives his wife a <i>get</i> based on an earlier commitment is not considered coerced. Even though the husband currently does not consent to give the <i>get</i> and is giving it only because of his earlier voluntary agreement, the Rama regards the transfer of the <i>get</i> as voluntary. The Taz (134:6) explains, “There is no coercion, since he voluntarily entered into this agreement.” Accordingly, we see that one cannot claim that he is coerced to smoke, since he initially chose to begin smoking. This is especially true in light of the many medicines and therapies that have helped numerous smokers quit their deadly habit.
  A Father’s Request to Purchase Cigarettes
  Rav Chaim David Halevi (<i>Teshuvot Aseih Lecha Rav</i> 6:58 and 7:65) was asked whether one must honor his father’s request to purchase cigarettes for him. Normally, Halachah requires one to fulfill a parent’s request for service (Kiddushin 31b). On the other hand, one is not required to follow a parent’s order to violate Halachah (Bava Metzia 32a).
  The <i>Beit Lechem Yehudah</i> (commenting on Shulchan Aruch Y.D. 240:15) and <i>Aruch Hashulchan</i> (Y.D. 240:41) address a similar situation. Doctors ordered someone not to drink water or eat a certain food. This individual subsequently asked his son to bring him water and the specified food, and he threatened that he would not forgive his son either in this world or in the next if he failed to obey. The <i>Beit Lechem Yehudah</i> and <i>Aruch Hashulchan </i>rule (based on Bava Metzia 32a) that the son is not obligated to obey his father’s command. Rav Halevi explains that bringing very unhealthy food to someone to eat would violate the prohibition of assisting another to sin (“<i>Lifnei iveir lo titein michshol</i>” [Vayikra 19:14]). Rav Halevi argues that it follows from this ruling that one should not give his father cigarettes if he requests them. Rather, he should politely and gently explain to his father (in accordance with Shulchan Aruch Y.D. 240:11) that smoking is very dangerous and that the Torah obligates us to preserve our bodies.
  Criticizing the Practices of Earlier Generations
  In general, Halachah frowns upon calling into question the halachic practices of earlier generations (<i>motzi la’az</i>, see Gittin 5b). In this vein, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:49) writes that we cannot declare smoking to be technically forbidden, since great Torah scholars of previous generations smoked.
  There are a number of potential responses to this argument. First, the Pitchei Teshuvah (E.H. 125:12) cites opinions that limit the cases in which one should not be <i>motzi la’az</i> on the practices of earlier generations. One suggestion is that this rule applies only to attempting to introduce a mere stringency (<i>chumrah b’alma</i>), not to establishing a behavior as technically forbidden. Another opinion believes that this principle applies only to particularly sensitive matters of <i>ishut</i> (family law), such as calling into question the validity of <i>gittin</i> executed by prior generations. According to these two approaches, considerations of <i>hotza’at la’az </i>on the practices of the past do not impede contemporary <i>Poskim</i> from issuing a stringent ruling regarding smoking.
  Furthermore, previous generations did not have the access to medical data that we have today. Thus, they did not violate the prohibition of endangering themselves, since they did not perceive smoking as dangerous. Similarly, we are not being <i>motzi la’az</i> on Rav Moshe’s rulings, since he was basing himself on data that were current when he wrote his responsa but are no longer up to date.
  Conclusion
  The comments of the Rama (Shulchan Aruch Y.D. 116:5) should dispel any doubts that smoking is prohibited. He writes, “One must avoid dangerous activities because we treat danger even more seriously than <i>issurim </i>(forbidden behaviors; see Chullin 9b). We must be more concerned about even possible danger than about possible violations of <i>issurim</i>.”20<i class="footnote">In fact, avoiding possible danger allows for violation of definite prohibitions. See <i>Gray Matter 2</i> pp. 3-18 for a discussion of this rule as it pertains to the laws of Shabbat.</i> The fact that many prominent <i>poskim</i> have issued rulings forbidding smoking raises the activity at the very least to the level of being possibly forbidden. Thus, smoking is forbidden even if one is uncertain whether it should be technically forbidden or not.
  We can discern three stages in the development of the attitude of contemporary <i>poskim</i> towards smoking. In 1976, Rav Chaim David Halevi became the first major <i>poseik</i> to state publicly that smoking is forbidden, and Rav Hershel Schachter21<i class="footnote">Rav Schachter’s position is reported by Rav Asher Bush.</i> did likewise at around the same time. Rav Eliezer Waldenberg followed suit in the early 1980s. The third stage came in the late 1990s and early 2000s, when Rav Ovadia Yosef, who previously had believed that it is not technically forbidden to smoke, concluded that it is forbidden to smoke based on changing societal behavior and medical data. Accordingly, at this point we may safely affirm that the age in which smoking was possibly permissible has passed, and that it is now forbidden. Indeed, the Halacha Committee of the Rabbinical Council of America ruled (June 30, 2006): “…that smoking is clearly and unquestionably forbidden by Halachah and that this should be made known to all who care about the Torah and their health.”
  Parents and educators must impart to their children and students the unequivocal message that smoking is forbidden according to Halachah. There are sufficient major rabbinic figures who have issued stringent rulings to resolve any uncertainty about this issue.
  Hashem has privileged us to live in an age where it is common for <i>chatanim </i>and <i>kallot </i>to enjoy the presence of grandparents and even great-grandparents at their weddings. What a shame it would be for a person to smoke and very likely miss the opportunity to bestow the great joy of his or her presence at the weddings of his or her children, grandchildren, and great-grandchildren.
  
  High Risk Medical Procedures
  
  
  
  Pregnant Women Fasting on Yom Kippur
  
  It is well-established that one who is dangerously ill on <i>Yom Kippur</i> need not fast (see Yoma 82a). It is also well-known that such a dangerously sick individual should try to limit his eating and drinking to very small quantities on <i>Yom Kippur</i>. In this chapter, we will seek to elucidate some of the issues involved, review the dispute as to whether this rule applies to <i>Tish’ah B’av</i> as well, and offer some suggestions for pregnant women who face this question.
  The <i>Shiur</i> for Eating
  The Torah (Vayikra 23:29) teaches that one who eats on <i>Yom Kippur</i> is punished with <i>kareit</i> (spiritual excision).1<i class="footnote">Rashi (Vayikra 17:9 s.v. <i>V’nichrat</i> and 20:20 s.v. <i>Aririm</i>) mentions that <i>kareit</i> can entail dying childless, burying one’s children, or dying prematurely. The Gemara (<i>Mo’eid Katan</i> 28a) defines “prematurely” as before age fifty.</i> This punishment takes effect, according to the Mishnah (Yoma 8:2), only if he eats or drinks the <i>shiur</i> (requisite amount), which, for <i>Yom Kippur</i>, is a volume of food equivalent to the size of a large date (<i>kakotevet hagasah</i>) or a quantity of liquid that could fill one’s cheek (<i>melo lugmav</i>).
  It should be noted that, to incur the punishment of <i>kareit</i>, the <i>shiur</i> must be consumed in an interval shorter than the time it takes to eat half a loaf of bread (<i>kedei achillat pras</i>). <i>Acharonim</i> debate exactly how many minutes this refers to. The Mishnah Berurah (618:21) cites the <i>Chatam Sofer</i>’s ruling (<i>Teshuvot Chatam Sofer</i> 6:16) that <i>kedei achillat pras</i> is the equivalent of nine minutes, while the <i>Aruch Hashulchan</i> (O.C. 618:14) writes that it is six to seven minutes.2<i class="footnote">For a review of the opinions on this matter, which range from two minutes to nine minutes, see the sources cited in the <i>Shemirat Shabbat K’hilchatah</i> (39:18 footnote 71).</i>
  In a celebrated dispute (Yoma 74a), Reish Lakish and Rabi Yochanan disagree regarding one who ate or drank a <i>chatzi shiur</i> (partial measure) of these amounts. Reish Lakish argues that although it is rabbinically forbidden to eat or drink even a tiny amount of food on <i>Yom Kippur</i>, one who does so has not violated a Torah prohibition, since the Torah does not consider consuming such a small amount to be “eating.” Rabi Yochanan, on the other hand, believes that one who eats or drinks a tiny amount violates a biblical prohibition. He reasons that since the tiny scrap is “<i>chazi l’itzterufei</i>” (has the potential to be combined with more food and contribute to a full <i>shiur</i>), it still qualifies as a Torah prohibition, even though eating this smaller amount it is not punishable by <i>kareit</i>. The position of Rabi Yochanan is codified as normative Halachah (Rambam <i>Hilchot Shevitat Assor</i> 2:3 and Shulchan Aruch O.C. 612:5).
  Eating Less than the <i>Shiur</i>
  In case of a potential threat to life, however, one may eat less than the <i>shiur</i>. The Gemara (<i>Keritot</i> 13a) states, “The Rabbis permitted a pregnant woman to eat less than a <i>shiur</i> due to the danger.” The Gemara clarifies that she certainly may eat more than a full <i>shiur</i> if emergency health considerations require eating and less than a <i>shiur</i> will not suffice to preserve her life. The Ramban (<i>Torat Ha’adam </i>2:28 in Rav Chavel’s <i>Kol Kitvei Haramban</i>), the Rosh (Yoma 8:13), and the <i>Maggid Mishneh</i> (commenting on <i>Hilchot Shvitat Assor</i> 2:8 s.v. <i>V’im</i>) apply the Gemara’s ruling to all illnesses. In their view, any dangerously ill individual should try to limit his eating on <i>Yom Kippur</i> to less than a <i>shiur</i>, as we would prefer that he avoid violating a transgression that is punishable by <i>kareit</i>. Obviously, though, as the Rosh explains, we will require a patient to eat less than a <i>shiur </i>only if the doctor states that eating this amount will suffice; if the doctor believes that more is required, the individual should eat more than a <i>shiur</i>. The Shulchan Aruch (618:7) rules in accordance with this view of the Ramban, Rosh, and <i>Maggid Mishneh</i>. The Netziv (<i>Ha’ameik She’eilah Parashat V’zot Habrachah</i>167:17), however, demonstrates that the Rif and Rambam disagree with this view. These <i>Rishonim</i>, the Netziv argues, believe that a sick individual whose life is endangered and who must eat on <i>Yom Kippur</i> to preserve his life may do so without limitations.
  In practice, Rav Mordechai Willig (<i>Kol Zvi</i> 9:31) believes that one fluid ounce is the <i>shiur</i> for both food and drink. Rav Dovid Heber,3<i class="footnote">Rav Heber’s essay on this topic is available at www.star-k.org.</i> though, presents Rav Moshe Heinemann’s ruling that a <i>kotevet hagasah</i> is 1.5 fluid ounces. He recommends, in order to maximize the amount of food consumed (if necessary), to compact bread, crackers, or cereal into one-and-a-half “schnapps glasses” that are marked as 1oz.-29 ml.
  Rav Heber also explains how to calculate one’s personal <i>melo lugmav</i>, as this <i>shiur</i> is determined by each individual’s own cheek size (<i>Keilim</i> 17:11). He writes that one should fill his mouth completely with water, expel the water into a measuring cup, and divide the resulting measurement in half.4<i class="footnote">This differs from the <i>Shemirat Shabbat K’hilchatah</i>’s (39:18 and 20) method for measuring <i>melo lugmav</i>.</i> He states that <i>melo lugmav</i> of an average adult is 1.5 fluid ounces and that a teenager may have a smaller <i>shiur</i>. 5<i class="footnote">Rav J. David Bleich (personal communication) and Rav Hershel Schachter (personal communication) do not restrict drinking (for those permitted to drink) to water; juice may also be consumed. Rav Dr. Zalman Levine recommends drinking isotonic fluids such as sports drinks or Pedialyte. He explains that neither water nor juice will hydrate a person anywhere near as effectively as an equivalent volume of an isotonic fluid, which stays in the bloodstream better than any other drink because it contains the requisite electrolytes.</i>
  Rav Chaim’s Understanding of this Rule
  Rav Chaim Soloveitchik6<i class="footnote">Rav Chaim’s view is cited by his son, Rav Yitzchak Zev Soloveitchik (commenting on the Rambam <i>Hilchot Shevitat Assor</i> 2:8), and by his grandson, Rav Yosef Dov Soloveitchik (<i>Halachic Man</i> p. 39). Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik fully concurred and ruled in accordance with Rav Chaim’s approach. See <i>Halachic Man</i> (<i>ibid</i>.) for a philosophical perspective on Rav Chaim’s ruling.</i> greatly limits the applicability of this restriction on eating even according to the Shulchan Aruch. He feels that the Shulchan Aruch’s ruling applies only to someone who is not dangerously ill, but who must eat on <i>Yom Kippur</i> to avoid becoming dangerously ill. However, a <i>choleh sheyeish bo sakanah</i> (dangerously ill person) may eat on <i>Yom Kippur</i> without limiting himself to less than a <i>shiur</i>.
  This approach is based on the ruling of the <i>Maggid Mishneh</i> (commenting on <i>Hilchot Shabbat</i> 2:14) and Shulchan Aruch (O.C. 328:4) that one may violate Shabbat in order to take care of even the non-critical needs of a <i>choleh sheyeish bo sakanah</i>.7<i class="footnote">See <i>Gray Matter 2</i> pp. 17-18.</i> Similarly, explains Rav Yitzchak Zev Soloveitchik, once someone is considered dangerously ill to the extent that he must eat on <i>Yom Kippur</i>, all of his needs must be met in an unlimited manner. Thus, he need not limit his eating to less than a <i>shiur</i> even according to the Shulchan Aruch.
  Criticism of Rav Chaim’s Approach
  Although Dr. Abraham S. Abraham (<i>Nishmat Avraham</i> 1:310) records that Rav Yechezkel Abramsky ruled in accordance with Rav Chaim’s view,8<i class="footnote">Although Rav Abramsky was a student of Rav Chaim, his opinion counts as a separate and supporting one (see <i>Aruch Hashulchan</i> C.M. 18:5).</i> the general practice among rabbis, as Rav Shlomo Yosef Zevin (<i>Moadim Bahalachah</i> p. 28) notes, is not to rely on this leniency. The <i>Aruch Hashulchan</i> (O.C. 618:15) does not seem to subscribe to Rav Chaim’s leniency. Similarly, Rav Yehoshua Neuwirth (<i>Shemirat Shabbat K’hilchatah </i>39:6) and Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at </i>6:39) rule against Rav Chaim. Rav Moshe Snow informed me that Rav Moshe Feinstein, as well, did not adopt Rav Chaim’s approach. Those who disagree with Rav Chaim point to the Shulchan Aruch (O.C. 618:7), who simply states that a sick person should try to eat less than a <i>shiur</i>. By not specifying that this rule applies only to one who is not dangerously ill, the Shulchan Aruch apparently extends it even to a <i>choleh sheyeish bo sakanah</i>.
  Furthermore, the Mishnah Berurah (328:14 and Bei’ur Halachah ad. loc. s.v. <i>Kol</i>) demonstrates that many <i>Rishonim</i> disagree with the aforementioned <i>Maggid Mishneh</i> (which serves as the basis for the opinion of Rav Chaim). The Mishnah Berurah concludes that when Torah prohibitions are involved, the <i>Maggid Mishneh</i>’s ruling should not be followed. Hence, since eating even less than a <i>shiur</i> on <i>Yom Kippur</i> constitutes a Torah prohibition, it seems that the Mishnah Berurah should be added to the list of those who dispute the ruling of Rav Chaim. One should ask his Rav for guidance when this issue arises in practice.
  Application to <i>Tish’ah B’av</i>
  <i>Acharonim</i> debate whether the rule of eating less than a <i>shiur</i> applies to <i>Tish’ah B’av</i>. While the Mishnah Berurah (Bei’ur Halachah 554:6 s.v. <i>D’bemakom Choli</i>) states that it does apply,9<i class="footnote">A careful reading of the Mishnah Berurah suggests that he speaks only of a situation where the individual is not dangerously ill but finds it necessary to eat in order to avoid becoming dangerously ill.</i> the <i>Aruch Hashulchan</i> (554:7) rules that it does not. The <i>Aruch Hashulchan</i>’s ruling seems, at a glance, to be more persuasive. He argues that only on <i>Yom Kippur</i> is there reason to distinguish between eating less than a <i>shiur</i> and a full <i>shiur</i>, as it is possible to violate a biblical prohibition without incurring the penalty. Therefore, it is halachically meaningful to eat less than a <i>shiur</i>. On <i>Tish’ah B’av</i>, on the other hand, it seems that one accomplishes nothing by eating less than a <i>shiur</i>. It is a rabbinic prohibition to eat on <i>Tish’ah B’av</i>, and the Rabbis made no distinction between eating more or less than a <i>shiur</i>. Nonetheless, the dispute is unresolved, so one should consult his Rav for a ruling regarding this matter.10<i class="footnote">For further analysis of this dispute, see <i>Ohr Hamizrach</i> (44:3-4:178). The <i>Marcheshet</i> (1:14), a proponent of the strict view, writes, “I recall when I was [once] sick on <i>Tish’ah B’av</i> and it was difficult for me to fast that I ate less than a <i>shiur</i> so as not to lose the fast whose source is in the Prophets and is as strict as <i>Yom Kippur</i>.” Rav Reuvein Feinstein told me that Rav Moshe Feinstein did not require a sick individual to eat less than a <i>shiur</i> on<i> Tish’ah B’av.</i></i>
  Practical Suggestions for Pregnant Women
  Very often, a Rav will rule that a pregnant woman may eat on <i>Yom Kippur</i>, but only less than the <i>shiur</i>. I have heard of problems resulting from such rulings, as it is claimed that fasting triggers the labor process, which can prove disastrous for many women. For example, I was informed of a case of a woman who was twenty-two weeks pregnant and was ordered by her doctor to eat and drink on <i>Yom Kippur</i>. An eminent Rav told her to eat and drink less than the <i>shiur</i>, which proved to be insufficient for this woman. She went into labor and was rushed to the hospital, where she narrowly missed losing the baby.11<i class="footnote">Rav Dovid Heber commented to me that he would find it very surprising for this to happen to a woman who drank the appropriate amount of liquid at the appropriate time. As noted, Rav Heber has found that 1.5 fluid ounces is the average <i>melo lugmav</i>, and he follows Rav Moshe Heinemann’s ruling that a person need wait only seven minutes between each drink. If a woman follows this protocol, she will drink around twelve fluid ounces per hour. Rav Heber reports that physicians have told him that this is more than sufficient for a pregnant woman. </i>
  Accordingly, a woman who needs to eat should ask her Rav and physician if she may follow the ruling of Rav Ovadia Yosef (<i>Yalkut Yosef</i>,<i> Kitzur Shulchan Aruch </i>618:5-6) that although one should wait nine minutes between the small portions when eating (in accordance with the aforementioned view of the <i>Chatam Sofer</i>), one need wait only five minutes between portions when drinking. There is more room to be lenient in regard to drinking because some <i>Rishonim </i>and <i>Acharonim </i>do not require waiting <i>kedei achillat pras</i> for it at all (see Shulchan Aruch O.C. 612:10 and Mishnah Berurah 612:31). Thus, in the context of drinking amounts less than a <i>shiur</i>, one may perhaps follow the opinions that endorse a shorter span for <i>kedei achillat pras</i>.12<i class="footnote">We should clarify that although one must wait between each drink, there is no need to wait between eating and drinking, because eating and drinking do not combine toward a <i>shiur</i> (Yoma 73b). Rav Hershel Schachter told me that one may follow this ruling of Rav Ovadia Yosef, especially in light of the opinion of the <i>Minchat Chinuch</i> (313:2) that <i>kedei achilat pras</i> varies from food to food. A <i>melo lugmav</i> of room temperature liquid certainly can be consumed within five minutes, so the amount of waiting need not be greater than that. Rav Mordechai Willig told me that a woman who feels that she must drink more often may rely on Rav Ovadia’s opinion; otherwise, she should wait nine minutes between drinking less than a <i>shiur</i>. </i>
  Following Rav Ovadia Yosef’s ruling might help pregnant women receive the hydration they need to avoid triggering premature labor. In addition, it would seem prudent for pregnant women to remain at home on <i>Yom Kippur</i>13<i class="footnote">Fasting on <i>Yom Kippur</i>, a biblical obligation that carries the punishment of <i>kareit</i> for its violators, is much more strict than and enjoys priority over the rabbinic obligation (from which women are exempt) to attend services on <i>Yom Kippur</i>.</i> in an air-conditioned environment and to minimize their activity in order to help reduce the risk of dehydration (see <i>Shemirat Shabbat K’hilchatah </i>39:28 and footnote 94). A woman might also consider drinking large volumes of water14<i class="footnote">Rav Dr. Zalman Levine recommends that the liquid consumed for this purpose also should be isotonic fluids.</i> throughout the two days prior to <i>Yom Kippur</i> in order to help prevent dehydration. Furthermore, if on <i>Yom Kippur</i> itself a woman intuits that the minimal amounts of water are insufficient, she should be sure to satisfy her body’s need15<i class="footnote">Dr. Jacob Markovitz informs me that if one already has become dehydrated to the extent that he expresses symptoms of dehydration, drinking less than a <i>shiur </i>is insufficient for rehydration. He advises that one who has experienced such symptoms (which include lightheadedness, lethargy, dizziness, dry mouth, or decreased urine) should drink beyond the <i>shiurim</i> so as to satisfy the body’s need for water. </i> if she feels that she would otherwise be endangering herself or her fetus (see Shulchan Aruch O.C. 618:1). Finally, if any woman on <i>Yom Kippur</i> who is fasting, or eating and drinking limited amounts goes into labor, she should inform her doctors of the restrictions she has been following, as this information might be vitally important for medical personnel, especially for the anesthesiologist.
  Conclusion
  We have highlighted only a few of the many issues involved in eating less than the <i>shiur</i> on <i>Yom Kippur</i>. Thus, it is imperative for one who finds himself or herself in such a situation to consult his or her Rav and doctor, who can offer competent guidance on how to observe safely the holy day of <i>Yom Kippur</i>.16<i class="footnote">It is vital to note that if one’s Rav and doctor require eating, it is forbidden for the patient to ignore their ruling and fast. Indeed, Rav Ovadia Yosef writes (<i>Teshuvot Yechaveh Da’at</i> 1:61), “If the sick individual adopts a strict approach and fasts [when ordered to eat], not only is he not acting piously, but, just the opposite, he will surely be punished by Heaven for having done so.” On the other hand, we should note that although Rav Nachum Rabinovitch (<i>Techumin</i> 17:343-346) rules that every woman more than five months pregnant should drink less than a <i>shiur</i> at a time, almost all <i>poskim</i> reject his view. Thus, each pregnant woman must consult her Rav for a ruling specific to her situation.We should note that if a Rav has permitted someone to eat and/or drink on <i>Yom Kippur</i>, it is not preferable (and might be forbidden) to be fed intravenously in order to avoid the necessity of eating on <i>Yom Kippur</i> (see <i>Teshuvot Igrot Moshe</i> O.C. 3:90, <i>Moadim Uzmanim</i> 1:60,<i> Shemirat Shabbat Kehilchata </i>(39:30), and my essay on this topic available at www.koltorah.org).</i>
  
  Cosmetic Surgery, A Review of Four Classic Teshuvot
  
  In this section, we will discuss the range of opinions regarding the halachic propriety of cosmetic surgery, reviewing four classic responsa on this topic from four great, late twentieth-century <i>poskim</i> – Rav Moshe Feinstein, Rav Yaakov Breisch, Rav Eliezer Waldenberg, and Rav Yitzchak Yaakov Weisz.
  Rav Moshe Feinstein
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe </i>C.M. 2:66) was asked whether it is permissible for a young woman to undergo cosmetic surgery to improve her chances of finding a suitable marriage partner. Rav Moshe approved the surgery based on the Rambam’s (<i>Hilchot Chovel Umazik</i> 5:1) definition of the prohibition of <i>chavalah</i> (wounding). In general, the Torah prohibits both wounding another person (see Devarim 25:3) and, as the Gemara (<i>Bava Kama</i> 91b) adds, even wounding oneself. The Rambam specifies that wounding is forbidden when it is performed “in a degrading manner,” (<i>derech bizayon</i>) or, according to an alternative text, “in a belligerent manner” (<i>derech nitzayon</i>). Thus, although the Rambam rules in accordance with the Tannaitic view (<i>ibid</i>.) that an individual is forbidden to wound himself, Rav Moshe infers from the Rambam’s proviso that if the wounding (whether of others or of oneself) is done in a beneficial manner, the prohibition of <i>chavalah </i>does not apply.1<i class="footnote">For further discussion and a summary of the authorities who either agree or disagree with Rav Moshe interpretation of the Rambam, see Rav Daniel Feldman, <i>The Right and the Good</i> pp. 159-161.</i>
  Rav Moshe cites four Talmudic sources for the Rambam’s ruling. First, the Gemara (<i>ibid</i>.) records that when Rav Chisda walked among thorns, he would roll up his pants so that his skin would be scratched instead of his clothes. He explained that, unlike the clothes, the skin would heal itself. It appears that Rav Chisda was permitted to wound himself because it was not done in a degrading or belligerent manner.
  Another proof is that the <i>Tanach</i> (<i>Melachim I</i> 20:35-36) and Gemara (Sanhedrin 89a-b) condemn the individual who refused to follow the prophet Michayhu’s divinely-received order that the individual wound him. It was necessary for the prophet to appear wounded in order to emphasize what King Achav should have done to the enemy king, ben Haddad of Aram. Once again, we see that wounding for a positive purpose (in this case, fulfillment of the divine command) is permissible when not done in a degrading or belligerent manner. One could question this proof, however, since an explicit divine command would supersede the prohibition in any case.
  Third, the Gemara (Sanhedrin 84b) permits one to perform a bloodletting on his father,2<i class="footnote">We explain later that generally speaking, one may not perform a medical procedure on a parent when another health care professional is available (Rama Y.D. 241:3). For a summary of the sources on this topic, see <i>Nishmat Avraham</i> (2:148-151). </i> citing as a source the celebrated <i>pasuk</i>, “<i>V’ahavta l’rei’acha kamocha</i>,” “Love thy neighbor as thyself.” Rashi (s.v. <i>V’ahavta</i>) elaborates, “We are forbidden only to do to others that which we would not want done to ourselves.” Rav Moshe explains that beneficial wounding, which bloodletting was considered, is something that all (prudent) people want done to them if necessary. Hence, this Gemara would permit wounding for any purpose that most prudent people would want, which Rav Moshe believes the case in question to be.
  Finally, the Mishnah (Bechorot 7:6) discusses a <i>bechor</i> (firstborn) who had an extra finger and removed it, but the Mishnah does not comment on his right to do so. In contrast, earlier Mishnayot (Bechorot 1:1 and 2:1), discussing one who sells his cow to a <i>nochri </i>(gentile), do indeed criticize the sale, adding, “even though one does not enjoy the right to do so.” Since the Mishnah does not condemn removing an extra finger, we may infer that it permits doing so.
  In light of this considerable evidence, Rav Moshe rules that the girl is permitted to undergo cosmetic surgery, since it is done for her benefit and with her consent. 3<i class="footnote">For a discussion of the applicability of the prohibition to injure another person to a situation in which the latter gave consent, see Rav Shlomo Yosef Zevin, <i>L’or Hahalachah</i> pp. 318-328.</i> As it is not done in a degrading or belligerent manner, Rav Moshe asserts that cosmetic surgery does not violate the prohibition of <i>chavalah</i>.4<i class="footnote">Rav Hershel Schachter told me that Rav Yosef Dov Soloveitchik also permitted cosmetic surgery because it is not done in a belligerent or degrading manner. </i>
  Interpreting and Applying Rav Moshe’s <i>Teshuvah</i>
  It is difficult to determine how far Rav Moshe would extend his permissive ruling. Does this <i>teshuvah</i> constitute a sweeping endorsement of the propriety of cosmetic surgery provided that it benefits the patient and has his or her consent? Or does Rav Moshe’s lenient ruling apply only in a situation in which the surgery is of great need, such as in the specific case that he adjudicated? Would Rav Moshe permit one to undergo eye surgery, for instance, to avoid the inconvenience of wearing eyeglasses or contact lenses? Rav Hershel Schachter told me that he believes that Rav Moshe’s permission applies only in a case of need, such as in the case that Rav Moshe adjudicated, where the girl wanted the surgery for purposes of finding an appropriate marriage partner.
  Rav Mordechai Willig noted (in a personal conversation) that Rav Moshe does not at all address the question of safety. Rav Willig infers that Rav Moshe’s permission applies only when there is no safety concern involved in the surgery. The greater the danger, the greater the need must be in order to permit the surgery.
  Rav Yaakov Breisch
  Rav Yaakov Breisch (<i>Teshuvot Chelkat Yaakov</i> 3:11) was also asked whether a young woman, seeking to facilitate her finding a suitable marriage partner, could undergo cosmetic surgery to straighten her nose and reduce its size. Rav Breisch cites the ruling of the Shulchan Aruch (Y.D. 241:3) that forbids removing a thorn, performing a bloodletting, or amputating a limb for one’s father even though he intends to heal him. The Rama (ad. loc.) adds that this is forbidden only if there are others available to perform this task. However, if no one else is available and the father is in pain, the son may perform the bloodletting or amputate the limb so long as the father consents. Rav Breisch, assuming that the Rama addresses even a patient whose life is not in danger, infers that he would permit a doctor to cut a limb merely to alleviate pain.
  Rav Breisch then expands the definition of pain for which a doctor may injure. His source is the Gemara’s (Shabbat 50b) permission for a man to remove scabs from his body to eliminate pain, but not merely to beautify himself. Rashi (ad. loc. s.v. <i>Mishum L’yafot</i>) explains that removing scabs for beautification purposes is forbidden for a male because it is regarded as feminine behavior.5<i class="footnote">Halachah forbids both men and women from imitating the behaviors of the opposite gender; see Devarim 22:5 and Shulchan Aruch (Y.D. 182).</i> <i>Tosafot</i>, however, (ad. loc. s.v. <i>Bishvil</i>) qualify the Gemara’s statement: “If the only pain that he suffers is that he is embarrassed to walk among people then it is permissible, because there is no greater pain than this.” Thus, <i>Tosafot</i> extend the definition of pain to include psychological distress. Accordingly, since the inability to find an appropriate spouse is certainly most distressing and the prohibition to wound does not apply when attempting to alleviate pain, Rav Breisch permits the young woman to undergo cosmetic surgery.
  In addition, Rav Breisch’s <i>teshuvah</i> addresses an issue that Rav Moshe leaves untouched – the prohibition to place oneself in danger (see Shulchan Aruch Y.D. 116 and C.M. 427). The questioner cited a responsum of the <i>Avnei Neizer</i> (<i>Teshuvot Avnei Neizer</i> Y.D. 321) forbidding a child to undergo surgery to straighten his crooked leg because of the danger involved. Rav Breisch, in turn, notes that the Gemara in numerous places (such as Yevamot 72a) permits certain activities that involve some danger if people commonly engage in such behavior.6<i class="footnote">This principle is discussed at length in our chapter about smoking.</i> The Gemara teaches that if society deems an activity to constitute a tolerable risk, the activity is entirely permissible. Accordingly, Rav Breisch writes, we are permitted to travel in an automobile or an airplane despite the risks. Similarly, the risks associated with surgery have decreased dramatically since the times of the <i>Avnei Neizer</i>, and hence society today regards surgery as a tolerable risk, rendering it permissible.
  Rav Breisch’s explicit permission to undergo cosmetic surgery obviously applies only to a situation of great need, as the precedents he cites sanction <i>chavalah</i> only when the individual is suffering physically or psychologically. Indeed, Rav J. David Bleich (<i>Judaism and Healing</i> pp. 126-129) adopts this position as normative. However, Rav Breisch also does not explicitly forbid cosmetic surgery performed for reasons of convenience; he simply does not address the issue.
  Rav Eliezer Waldenberg
  Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 11:41) presents a radically different approach from Rav Moshe’s and Rav Breisch’s. He categorically prohibits all cosmetic surgeries, forbidding both a doctor to perform cosmetic surgery and patients to undergo it.
  Some background information is necessary in order to understand Rav Waldenberg’s concerns. The Gemara (<i>Bava Kama</i> 85a) infers from the obligation that the Torah (Shemot 21:1) imposes upon an injurer to pay his victim’s medical bills that “The Torah permits a physician to heal.” Absent such permission, explain <i>Tosafot</i> (<i>Bava Kamma </i>85a s.v. <i>Shenitnah</i>), we would have thought that we are forbidden to heal because we “appear to be contradicting the King’s decree.” By authorizing medical attention, however, the Torah teaches that we are not contradicting Hashem’s will, because the King who issued the decree for the illness or injury also permitted physicians to heal.
  Rav Waldenberg forcefully argues that the divine license to heal applies only to curing an illness, not to altering one’s appearance. It is certainly forbidden, he adds, to risk one’s life to undergo cosmetic surgery, even if the risk is not great.
  Rav Waldenberg even calls cosmetic surgery an insult to our Creator, because it implies that His work is inadequate. To prove this point, he cites a story in the Gemara (<i>Ta’anit</i> 20b) in which Rabi Elazar ben Shimon met an exceptionally homely individual and asked him whether all of the people in his town were as ugly as he. The man responded that Rabi Elazar had insulted Hashem by implying, “What an ugly vessel You have made!” Rabi Elazar sought his forgiveness, and though the man refused to extend it at first, the townspeople eventually convinced him to relent. <i>Tosafot</i>, citing <i>Masechet Derech Eretz</i>, comment that the ugly man was none other than Eliyahu Hanavi in disguise.
  In another responsum (<i>Teshuvot Tzitz Eliezer</i> 12:43), Rav Waldenberg addresses the permissibility of undergoing elective surgery on a Thursday or a Friday. While the questioner was primarily concerned about the surgery interfering with Shabbat observance and enjoyment,7<i class="footnote">See <i>Gray Matter 2</i> pp. 19-23.</i> Rav Waldenberg simply responds that Halachah never condones elective surgery. If a surgery is not necessary, it may not be undertaken.8<i class="footnote">See the observations of Rav Immanuel Jacobowitz (<i>Noam</i> 6:273) and Dr. Abraham S. Abraham (<i>Nishmat Avraham</i> 2:49) for more regarding Rav Waldenberg’s opinion.</i>
  Rav Yitzchak Yaakov Weisz
  In a very brief responsum (<i>Teshuvot Minchat Yitzchak</i> 6:105:2) concerning cosmetic surgery, Dayan Weisz focuses on two issues - <i>chavalah </i>and <i>sakanah</i> (the prohibition to enter into a dangerous situation). He adopts an identical stance to Rav Moshe’s regarding <i>chavalah</i>, namely, that it is not forbidden unless it is done in a belligerent or degrading manner. Thus, the prohibition of <i>chavalah</i> constitutes no impediment to undergoing cosmetic surgery. Unlike Rav Breisch, however, Dayan Weisz does believe that the danger involved in any surgery, small though it may be, is of major concern.
  Dayan Weisz refers to an earlier responsum (<i>Teshuvot Minchat Yitzchak</i> 1:28:2) in which he forbids undergoing any surgery unless it is necessary to save the patient’s life. In this vein, he interprets the Rama’s aforementioned permission for a son to cut his father’s limb as referring only to a case of life-threatening danger.9<i class="footnote">This reading appears difficult, as had the Rama had intended this, he should have said so explicitly. According to Dayan Weisz, the Rama omits a vital condition from his ruling.</i>
  Accordingly, although Dayan Weisz concedes that some would-be cosmetic surgery patients are defined as <i>cholim</i> (as Rav Breisch argues), he hesitates to permit the surgery, since these people are not <i>cholim sheyeish bahem sakanah</i> (sick individuals whose lives are endangered). Dayan Weisz concludes that he is unsure of this matter, and remarks that with God’s help he might look into the matter further in the future. Though he does acknowledge that Rav Breisch’s argument is a “<i>sevara gedolah</i>” (cogent argument), he stops short of endorsing it.10<i class="footnote">Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi </i>(6:198) similarly forbids cosmetic surgery out of concern for the danger involved, small though it may be.</i>
  I find it illuminating that neither Rav Moshe nor Rav Breisch shares Rav Waldenberg’s fundamental theological concerns about cosmetic surgery. Arguably, cosmetic surgery does not insult the work of the “Craftsman” because He also revealed to mankind the knowledge and ability to perform cosmetic surgery. Perhaps Rav Moshe and Rav Breisch view such surgery as part of our role as “junior partners” with Hashem in the ongoing creation of the world (see Shabbat 10a and Ramban to Bereishit 1:28).11<i class="footnote">Rav Gidon Weitzman suggested to me that Rav Waldenberg might respond that we are considered partners with Hashem only when improving the world, such as when creating a child (see Niddah 31a) or when turning wheat into cake (see <i>Tanchuma</i>, <i>Parashat Tazria</i>, <i>parashah </i>5). Rav Waldenberg could argue that because cosmetic surgery does not constitute a real “improvement” in the world, we are not considered partners with Hashem when performing such a procedure. As such, we are declaring Hashem’s work to be inferior when we attempt to alter it without any real improvement.</i>
  Conclusion
  The four classic <i>teshuvot</i> on the topic of cosmetic surgery present significantly different approaches to the issue. Rav Moshe and Rav Breisch both permit such surgery, at least when it alleviates distress, while Rav Waldenberg and Dayan Weisz both prohibit it. Rav J. David Bleich (<i>Judaism and Healing</i> pp. 126-128) concludes that it is permissible in case of great need. However, there is no published ruling from a major halachic authority that explicitly permits cosmetic surgery for no reason other than convenience. One who is contemplating cosmetic surgery should consult his or her Rav for a ruling on its permissibility.
  
  Sonograms and Kohanim's Wives
  
  A Halachic Stringency Imposed by Technology?
  Usually, technology improves our lives in both mundane and halachic matters. For example, the problem of <i>agunot</i> (women unable to remarry because it is not known if their husbands are dead or alive) has been dramatically ameliorated in our generation due to vastly improved communication technologies and DNA evidence.1<i class="footnote">See <i>Gray Matter 2</i> pp.114-138 and our section about the admissibility of DNA evidence in <i>beit din</i>.</i> However, the emergence of ultrasound testing of pregnant women as a standard procedure might impose some restrictions upon the wives of <i>kohanim</i> if it reveals to them that they are carrying a male child.
  A few points need to be clarified before we begin our discussion. The Torah (Vayikra 21:1) forbids <i>kohanim</i> to come in contact with the dead. This restriction, however, applies only to male <i>kohanim</i> (Sotah 23b, cited by Rashi to Vayikra 21:1). Contact with the dead includes being in the same building as a dead body (Bemidbar 19:14). 2<i class="footnote">For a summary of whether this rule prohibits <i>kohanim</i> from entering hospitals, see<i> Nishmat Avraham</i> (2:209-210). For further discussion of this issue, see <i>Techumin</i> (19:323-334).</i> Although children are not personally obligated to observe this restriction, adults cannot deliberately cause even the youngest of <i>kohanim</i> (even an infant) to come in contact with a dead body (Mishnah Berurah 343:3 and <i>Aruch Hashulchan</i> Y.D. 373:1).
  Thus, a pregnant wife of a <i>kohen</i> who discovers that her child is male might be prohibited from even entering a funeral home or any other building containing a dead body, because she thereby causes her unborn male child to come in contact with the dead. In this chapter, we shall outline both the lenient and strict approaches to this issue, about which the <i>poskim</i> remain divided. Our discussion is based on essays by Rav J. David Bleich, (<i>Tradition </i>39:2:90-96) and Rav Zalman Nechemia Goldberg (<i>Ateret Shlomo </i>pp. 33-39) and on a conversation with Rav Hershel Schachter. The discussion of this issue among the <i>poskim</i> is extraordinarily rich, touching on many fundamental principles and disputes regarding various aspects of the halachic process.
  The <i>S’feik S’feika</i> Argument – the <i>Rokei’ach</i>
  Traditionally, pregnant wives of <i>kohanim</i> did not have to be concerned about the possibility that they might be carrying a boy. The <i>Rokei’ach</i> (366) articulates a leniency based on the rule of <i>s’feik s’feika</i> (double doubt). Although normally one must rule strictly if there is a doubt regarding a Torah-level prohibition, one may be lenient if two aspects of the situation are uncertain. We have such a double uncertainty, argues the <i>Rokei’ach</i>, in the case of the <i>kohen</i>’s wife: first, the child might be a female, and second, even if the child is a male, it might be a <i>neifel</i> (a non-viable child), to whom the restrictions on contact with the dead do not apply. The Shach (Y.D. 371:1) cites the <i>Rokei’ach</i> as normative Halachah.3<i class="footnote">The Shulchan Aruch, Rama, and <i>Aruch Hashulchan</i> do not raise the question of a fetus coming in contact with the dead. We shall deal with this omission later in our discussion.</i>
  Accordingly, many question whether the <i>Rokei’ach</i>’s leniency still applies today, when women are able to discover the gender of their unborn children at their routine sonograms. Resolving the gender of the fetus might break the first prong of the <i>s’feik s’feika</i>. The applicability of the <i>Rokei’ach</i>’s explanation is the focus of much of the debate concerning this issue.
  The Strict Approach – Rav J. David Bleich
  Rav Bleich focuses on a debate amongst the <i>poskim</i> as to whether a <i>s’feik s’feika</i> remains in effect if the doubt can be resolved. The Rama (Y.D. 110:9) rules leniently, but the Shach (Y.D. 110 <i>Klalei S’feik S’feika</i> 35:66) notes that some are strict.4<i class="footnote">This question seems to hinge upon how one understands the role of <i>s’feik s’feika</i>. See Rav Yosef Dov Soloveitchik’s analysis cited by Rav Schachter in the <i>Journal of Halacha and Contemporary Society</i> 9:158. If one believes that we treat a case of <i>s’feik s’feika</i> as if the leniency is conclusively correct with no <i>safeik</i> at all, there is no need to investigate further about either <i>safeik</i>. If, however, a <i>s’feik s’feika</i> is treated as a doubt that is resolved leniently, there might be reason to investigate one or both of the doubts, if possible.</i> The Shach concludes that one should be strict in a case in which it is easy for one to check and there is no expense involved in resolving the doubt. Thus, since it is easy (and involves no extra cost) for a pregnant wife of a <i>kohen</i> to inquire as to the gender of the fetus when she undergoes her routine sonogram, it would seem that she is obligated to make this inquiry and then to avoid contact with the dead if she finds that the fetus is male.
  Nonetheless, the <i>Teshuvot Noda Biy’hudah </i>(Y.D. 43, cited in Pitchei Teshuvah Y.D. 110:35) writes that even the strict opinion would be lenient in a case where only one prong of the double doubt can be clarified. The Pitchei Teshuvah records that Rav Akiva Eiger (<i>Teshuvot Rav Akiva Eiger</i> 77) and the <i>Maharshal </i>(cited in <i>Teshuvot Beit Yaakov</i> 84) agree with this approach, and he cites no dissenting opinions.
  Accordingly, since only one of the prongs of the <i>Rokei’ach</i>’s <i>s’feik s’feika</i> – the fetus’ gender – can be resolved by a sonogram, the <i>s’feik s’feika</i> remains in effect. Hence, the wives of <i>kohanim</i> should not inquire as to the gender of their unborn children, thus preserving the <i>s’feik s’feika</i> and obviating the need to avoid contact with the dead.
  Rav Bleich notes, however, that some <i>Acharonim</i>, including the Pri Megadim (O.C. <i>Eishel Avraham</i> 343:2) and Gilyon Maharsha (Y.D. 371:1), challenge the validity of the <i>s’feik s’feika</i> presented by the <i>Rokei’ach</i>. They note that <i>Tosafot</i> (Ketubot 9a s.v. <i>Ve’iba’it Eima</i>)5<i class="footnote"><i>Tosafot</i>’s view is cited as normative by the Shach (Y.D. 110 <i>Klalei S’feik s’feika</i> 33) and the <i>Aruch Hashulchan</i> (Y.D. 110:115).</i> rule that a doubt can be utilized to create a legitimate <i>s’feik s’feika</i> only if each side is a <i>safeik hashakul</i> (at least a fifty percent chance of occurrence). Accordingly, while the <i>safeik</i> as to the gender of the fetus is a <i>safeik hashakul</i>, since at least fifty percent of babies are female, the <i>safeik</i> as to whether the baby is a <i>neifel</i> is not, since <i>nefalim</i> comprise only a very small percentage of babies.
  This leads the <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer </i>Y.D. 354, referenced in Pitchei Teshuvah Y.D. 371:1) to reinterpret the reasoning of the <i>Rokei’ach</i>. The principle that permits pregnant wives of <i>kohanim</i> to come in contact with the dead, according to the <i>Chatam Sofer</i>’s reading, is not <i>s’feik s’feika</i>. Rather, it is <i>rov</i> (majority): since about fifty percent of fetuses will be girls and several more will be <i>nefalim</i>, there is no concern for contact with the dead regarding the majority of unborn children.
  Rav Bleich notes that basing this lenient ruling on <i>rov</i> rather than on <i>s’feik s’feika</i> has major repercussions. Unlike a <i>s’feik s’feika</i>, which remains intact even if one of the prongs can be readily resolved, one cannot rely on <i>rov</i> to resolve a doubt if the doubt is readily resolved upon inspection.6<i class="footnote">Investigation is not necessary in cases of <i>s’feik s’feika</i>, even where it would be for <i>rov</i>, because <i>s’feik s’feika</i> is a more potent tool for resolving doubt (though there is much discussion of this point, summarized by the <i>Aruch Hashulchan</i> Y.D. 110:96-98).</i> In a situation in which there is a very significant minority (<i>mi’ut hamatzui</i>) of cases that differ from the <i>rov</i>, rabbinic law requires one to investigate the situation if it is possible to do so (see Rashi to Chullin 12a s.v. <i>Pesach </i>and Ramban, <i>Milchamot Hashem</i> to Chullin 4a in the pages in the Rif). Though there is some dispute as to what constitutes a <i>mi’ut hamatzui</i>, it is generally accepted that more than ten percent is considered a <i>mi’ut hamatzui</i>. 7<i class="footnote">See <i>Teshuvot Mishkenot Yaakov</i> 1 Y.D. 17, <i>Teshuvot Minchat Shlomo </i>2:61:1, and Rav Yosef Dov Soloveitchik (cited in <i>Nefesh Harav</i> p. 228). Rav J.David Bleich (<i>Tradition</i> 41:1:56) notes that ten percent is the most widely accepted standard for this matter, though he cites alternative views. Rav Mordechai Willig also mentioned ten percent in a <i>shiur</i> delivered to the Rabbinical Council of America.</i>
  For example, Rav Hershel Schachter told me that if most suit jackets do not contain <i>sha’atnez</i> (a forbidden wool and linen mixture), but more than ten percent do,8<i class="footnote">Rav Schachter noted that this percentage varies based on the price of the suit and the country in which it is manufactured. </i> one would be required, on a rabbinic level, to inspect a suit jacket he has purchased to see if it contains <i>sha’atnez</i>.9<i class="footnote">Also see the last paragraph of <i>Teshuvot Igrot Moshe</i> Y.D. 1:72.</i> In our case, Rav Bleich rules that since viable males constitute a very significant minority of unborn children, a <i>kohen</i>’s wife would be required by rabbinic law to inquire at her sonogram whether the fetus is male. If it is, she would be required to avoid contact with the dead.10<i class="footnote">Included in this requirement is avoiding awnings of a funeral home that hang over a sidewalk, trees that overhang from a cemetery onto a sidewalk or street, and museums that house dead bodies.</i>
  Rav Bleich does, however, permit the wife to give birth in a hospital (despite the possible presence of dead bodies) because of concern for <i>pikuach nefesh</i> (life-threatening danger). Rav Bleich notes that Halachah always regards childbirth as a situation that constitutes such a danger (see Shabbat 128b-129a), and he marshals many recent medical studies to prove that the danger is lessened when the birth takes place in a hospital. Although there are some studies that indicate that home births with a certified professional midwife might be as safe as hospital deliveries, every individual has the halachic right to choose which health care provider and service is the better option for him or her (<i>Shemirat Shabbat K’hilchatah</i> 32:38). Accordingly, even if the sonogram indicates that the fetus is a boy, the <i>kohen</i>’s wife may choose to give birth in a hospital if she believes that it is safer to do so there.
  The Lenient View – Rav Zalman Nechemia Goldberg
  There are, however, many reasons to adopt a lenient approach to our issue. First, it is possible to defend the integrity of the <i>s’feik s’feika</i> from the question of the Pri Megadim and Gilyon Maharsha. Rav Zalman Nechemia Goldberg notes that the Gemara (Yevamot 119a) constructs a similar <i>s’feik s’feika</i>, although it does not specifically mention the term, in the context of the <i>halachot </i>of <i>yibum </i>and <i>chalitzah</i>.
  Some background is necessary to understand the Gemara’s case. If a man dies childless, the Torah (Devarim 25:4-11) obligates the brother of the deceased either to marry the widow (<i>yibum</i>) or participate in a ceremony in which he officially declines to marry her (<i>chalitzah</i>). If the deceased left offspring, however, there is no obligation for his brother to perform either <i>yibum</i> or <i>chalitzah</i>. The Mishnah (Yevamot 16:1) discusses a case where a woman’s husband died childless and the deceased husband did not have a brother, thus avoiding the requirement for <i>yibum</i> or <i>chalitzah</i>. However, the deceased husband’s mother remains alive in a distant land where the wife could not communicate with her. The Mishnah teaches that the wife need not be concerned that the mother gave birth to a male child who would be required to perform <i>yibum</i> or <i>chalitzah</i> because of what may be construed as a <i>s’feik s’feika</i>: “Perhaps she miscarried and perhaps she gave birth to a female.” It thus appears that such a <i>s’feik s’feika</i> is valid.11<i class="footnote">Alternatively, the Gemara’s case could be understood as employing the principle of <i>rov</i>, as we noted earlier from the <i>Chatam Sofer</i>. Rav Zalman Nechemia Goldberg, however, understands <i>s’feik s’feika </i>to be merely a more potent form of<i> rov</i>, and thus one cannot distinguish between the two, since they are identical concepts. For further discussion of this issue, see<i> Aruch Hashulchan </i>Y.D. 110:96-98.</i>
  Rav Zalman Nechemia also points out that the <i>Rivash</i> (372, cited by the <i>Shev Shemateta</i> 1:18) cites this passage as a contradiction to the aforementioned <i>Tosafot</i> in Ketubot. The <i>Rivash</i> distinguishes between the two cases, explaining that a <i>safeik</i> pertaining to a naturally occurring event can be marshaled to construct a <i>s’feik s’feika</i> even if it is not a <i>safeik hashakul</i>. <i>Tosafot</i>, on the other hand, address a case in which the <i>s’feik s’feika</i> is based on doubts regarding how a particular person behaved. Such a doubt, according to the <i>Rivash</i>, can be used to create a <i>s’feik s’feika</i> only if it is a <i>safeik hashakul</i>.
  Accordingly, concludes Rav Zalman Nechemia, the <i>s’feik s’feika</i> of the <i>Rokei’ach</i> is legitimate, since both doubts relate to which naturally occurring event happened, even though one prong is not a <i>safeik hashakul</i>. Since the <i>Rokei’ach</i>’s <i>s’feik s’feika</i> stands, a <i>kohen</i>’s wife may rely on the opinions that one need not resolve a <i>s’feik s’feika</i>, and thus she need not ask about her child’s gender at her sonogram.
  Support for the Lenient View – <i>Tum’ah Belu’ah</i>
  The Magen Avraham (343:2) wonders why the <i>Rokei’ach</i> finds it necessary to construct a <i>s’feik s’feika</i> to permit pregnant wives of <i>kohanim</i> to come in contact with the dead. He notes that the Gemara (Chullin 71a) teaches that something that is “swallowed” (<i>belu’ah</i>) in another item does not contract <i>tum’ah</i> (ritual impurity) from the item that surrounds it. For instance, if someone swallows a <i>tahor</i> (ritually pure) ring and subsequently becomes <i>tamei</i>, the ring remains <i>tahor</i>, since the person shields it from the <i>tum’ah</i>. Accordingly, the fetus should not become <i>tamei</i> even if the mother does, since the mother shields the fetus that is <i>balu’a</i> within her from <i>tum’ah</i>. The Magen Avraham concludes that he is unable to resolve his question.
  The <i>Radbaz</i> (<i>Chadashot</i> 200, cited in Pitchei Teshuvah Y.D. 371:1), writing 150 years before the Magen Avraham, also asks this question. He concludes that the <i>Rokei’ach</i> must be speaking about a particular situation that mandates relying on such a leniency – when the woman is very close to term, and may go into labor suddenly. Since the <i>tum’ah belu’ah</i> leniency would cease to apply the moment the baby is born, which could happen at any time, the <i>Rokei’ach</i>’s <i>s’feik s’feika</i> is needed to justify a non-emergency visit to a place with dead bodies.
  The <i>Netiv Chaim</i> (printed in the standard editions of the Shulchan Aruch O.C. 343) concurs with the <i>Radbaz</i>’s approach, and both the <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> Y.D. 354) and the Mishnah Berurah (343:3) rule in accordance with this lenient interpretation of the <i>Radbaz</i>. Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi</i> 2:205) endorses this reading of the <i>Rokei’ach</i>, though he notes that Rav Yaakov Emden (<i>Teshuvot Ya’avetz</i> 2:177) disagrees. Rav Zalman Nechemia Goldberg, based on the Mishnah Berurah’s approach, likewise rules leniently.
  According to this understanding, a <i>kohen</i>’s wife need not be concerned about coming in contact with the dead until it appears that she is about to give birth. Even after this point, the mother may give birth in a hospital in order to minimize the danger to life during childbirth, as we discussed above.12<i class="footnote">We should note that this argument also allows a <i>kohen </i>to remain at home with his wife if she has miscarried (heaven forfend), even if the expired fetus will remain in her body for a short while until it is medically appropriate to remove. This is because <i>tum’ah belu’ah </i>also prevents the “swallowed” <i>tum’ah </i>from spreading outside its “container.” See also Rav Hershel Schachter’s <i>Be’ikvei Hatzon</i> pp. 234-235 footnote 7.</i>
  Objections to the <i>Tum’ah Belu’ah </i>Justification
  Many <i>Acharonim</i> challenge the validity of the <i>tum’ah belu’ah </i>justification. Both Rav Elchanan Wasserman (<i>Kovetz Shiurim</i> 2:41) and Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:65:5-6) argue that the fetus’ safety from <i>tum’ah</i> does not solve the entire problem, as they claim that a <i>kohen</i> is prohibited to have contact with the dead even if he does not become <i>tamei meit</i> (ritually impure through contact with the dead) thereby. Conversely, according to this logic, a <i>kohen</i> may become <i>tamei meit</i> even though he is not considered to have come in contact with the dead.
  Rav Hershel Schachter (<i>B’ikvei Hatzon</i> pp. 232-238) vigorously supports this view and marshals many sources to prove its correctness.13<i class="footnote">For example, Rav Schachter notes that some authorities (cited and accepted by the Rama Y.D. 369:1) allow a <i>kohen</i> to touch metal that has come in contact with the dead, even though Halachah gives such metal the status of the dead itself (<i>cherev harei hu k’chalal</i>). See <i>Tosafot</i> (<i>Nazir </i>54b s.v. <i>Ta Shma</i>). </i> Accordingly, it is not surprising that he is inclined to reject the Mishnah Berurah’s ruling, which assumes that <i>tum’ah belu’ah</i> is sufficient cause for leniency. Moreover, he told me that the <i>Radbaz</i>’s entire limitation of the <i>Rokei’ach</i>’s explanation does not seem to fit the straightforward reading of the words of the <i>Rokei’ach</i> (Rav Wosner believes otherwise), which removes the issue of <i>tum’ah belu’ah </i>entirely.
  On the other hand, many <i>Acharonim</i> dispute this understanding of the prohibition for <i>kohanim</i> to come in contact with the dead. They believe that the prohibition is indeed focused on contracting <i>tum’at meit</i>. Rav Zalman Nechemia Goldberg, for example, concludes this based on <i>Tosafot </i>(Ketubot 28b s.v. <i>Beit Hapras</i>), who apply the principle of <i>sefeik tum’ah birshut harabim tahor </i>(an item whose purity is in doubt in a public place is assumed to be <i>tahor</i>) to the <i>kohanim</i>’s prohibition. According to Rav Elchanan and Rav Chaim Ozer, it should be forbidden for a <i>kohen</i> to enter an area of doubtful <i>tum’ah</i> in a public place, since he might in fact be coming in contact with the dead despite remaining <i>tahor</i>. The fact that <i>Tosafot</i> believe that a <i>kohen</i> is permitted (in some circumstances) to enter such an area simply because he is not rendered <i>tamei</i>, even though he might come in contact with the dead, seems to demonstrate that <i>Tosafot</i> do not subscribe to Rav Elchanan and Rav Chaim Ozer’s approach.
  The <i>Avnei Milu’im</i> (82:1) objects to the approach of the <i>Radbaz</i> and Magen Avraham for a different reason. Only a foreign object in a body is considered <i>belu’ah</i> and is protected from contracting <i>tum’ah</i> from its host. The <i>Avnei Milu’im</i> argues that a fetus is not “foreign,” and therefore is not shielded by its mother from contracting <i>tum’ah</i>. As proof for his assertion, he cites the Gemara’s (Yevamot 78a-b) ruling that when a pregnant non-Jewish woman immerses in a <i>mikveh</i> to convert to Judaism, the fetus becomes Jewish along with its mother. The Gemara explains that the mother does not constitute a <i>chatzitzah</i> (barrier) between the baby and the <i>mikveh</i> water because “<i>haynu reviteih</i>,” this is the normal manner in which the fetus develops. The <i>Avnei Milu’im</i> infers that just as the mother does not separate between her fetus and the <i>mikveh</i> water, she also does not serve as a barrier between her fetus and <i>tum’ah</i>.
  Rav Zalman Nechemia Goldberg, though, cites the Mishnah’s (<i>Parah</i> 3:2) description of the extreme measures that were taken to ensure the <i>tahorah</i> of the individuals who drew water for the <i>parah adumah</i> (red heifer) ceremony.14<i class="footnote">The only way for a person to remove himself from the status of <i>tum’at meit</i> is to go through a process of purification (described in Bemidbar 19:1-22) involving the ashes of the <i>parah adumah</i>.</i> The Mishnah describes how women would come to specially designed homes in Yerushalayim where they would give birth and raise children who were guaranteed not to have become <i>tamei</i>. This Mishnah, contends Rav Zalman Nechemia, clearly indicates that the concern for <i>tum’ah</i> begins only at birth, as the women would come to this type of home only to give birth, not immediately after conception. Apparently, the mother does shield her fetus from <i>tum’ah</i>, presumably because the fetus is <i>tum’ah belu’ah</i>.15<i class="footnote">This inference from the Gemara also is made by the <i>Me’iri</i> (Sukkah 21a).</i> To defend the <i>Avnei Milu’im</i>, Rav Zalman Nechemia suggests that a fetus can become <i>tamei</i> in utero, but loses all <i>tum’ah</i> when born because it emerges as a new entity (see, however, <i>Teshuvot Binyan Tzion Hachadashot</i> 96). He notes, however, that this answer is inadequate for the <i>Avnei Milu’im</i> himself, who writes (Ketzot Hachoshen 209:1)16<i class="footnote">The author of the <i>Avnei Milu’im</i>, Rav Aryeh Leib ben Yosef Hakohen, also wrote the Ketzot Hachoshen.</i> that a fetus does not emerge as a new entity at birth.
  Moreover, Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi</i> 2:205 and 6:175) adds that the Mishnah (Niddah 5:3) describes how a baby on the day it is born has the potential to become <i>tamei</i>. This clearly indicates that before the baby is born it does not have this potential. Rav Wosner seems to share Rav Zalman Nechemia’s view that the prohibition for a <i>kohen</i> to come in contact with the dead applies only in a situation where the <i>kohen</i> becomes <i>tamei</i>. Indeed, he writes that a wife of a <i>kohen</i> should not hesitate to give birth in a hospital despite the presence of <i>tum’at meit</i>. It seems that Rav Wosner would not require a <i>kohen</i>’s wife to inquire as to the gender of her child when she undergoes a sonogram and that he would permit a <i>kohen</i>’s wife to visit a hospital or funeral home even when she is pregnant.
  Surprisingly, the Shulchan Aruch and Rama do not mention the <i>Rokei’ach</i>’s comment at all. This omission might indicate that they disagree with his basic assumption that a <i>kohen</i> has the potential to become <i>tamei</i> in utero. The <i>Aruch Hashulchan</i> also does not cite the <i>Rokei’ach</i> at all. These authorities might believe that the entire issue is moot, since a fetus cannot become <i>tamei</i>.
  Is a Fetus a <i>Kohen</i>?
  Another possible explanation for the silence of the Shulchan Aruch and Rama on this matter is that they do not share the <i>Rokei’ach</i>’s assumption that a <i>kohen</i>’s son is considered a <i>kohen</i> before he is born. Indeed, the <i>Chatam Sofer</i> (<i>Teshuvot</i> Y.D. 354) proves this from an explicit comment of the Gemara (Yevamot 67a): “A fetus in the womb of a non-<i>kohen</i> is not a <i>kohen</i> (even if the father is a <i>kohen</i>).” The <i>Chatam Sofer</i> explains that since we rule that “<i>Ubar yerech imo</i>,” “A fetus is considered to be a limb of the mother,” the fetus has the same status as its mother. Thus, just as the unborn child’s mother (even if she is the daughter of a <i>kohen</i>) is not forbidden to come in contact with the dead, the fetus is also not forbidden to be in contact with the dead. The <i>Minchat Chinuch</i> (263:3) also suggests that the fetus does not have the status of a <i>kohen</i>.17<i class="footnote">The <i>Teshuvot Binyan Tzion Hachadashot </i>(96) argues that even if the fetus is permitted to become <i>tamei</i>, it will maintain that status after it is born, whereupon, if it is a male, it will violate the prohibition. The cogency of the argument may depend on the aforementioned dispute regarding whether a <i>kohen</i> may become <i>tamei meit</i> if he does not actually come in contact with the dead.</i> However, Rav Moshe Shternbuch (<i>Teshuvot V’hanhagot</i> 1:679) cites Rav Yitzchak Zev Soloveitchik as asserting that a son of a <i>kohen</i> is classified as a <i>kohen</i> even in utero. According to Rav Soloveitchik, the Gemara cited by the <i>Chatam Sofer</i> should not be understood as an all-embracing statement, but rather as a rule that applies uniquely to the ability of a <i>kohen</i>’s wife to eat <i>terumah</i> (the <i>Kohen</i>’s tithe, which a non-<i>Kohen</i> is strictly forbidden to consume), the subject the Gemara there discusses. The <i>Rokei’ach</i> apparently shares this view, since he does not advance this argument to allow a <i>kohen</i>’s pregnant wife to come in contact with the dead.
  Conclusion
  Rav Bleich concludes that a <i>kohen</i>’s wife must inquire at a sonogram if her unborn child is a male, and if she discovers that it is, she must avoid contact with the dead unless this poses a danger to life (such as in childbirth). However, Rav Zalman Nechemia Goldberg rules in accordance with the Mishnah Berurah that a <i>kohen</i>’s wife need not be concerned about <i>tum’at meit </i>until she is ready to give birth, a view that Rav Wosner appears to share. Rav Shternbuch even allows a wife who already knows that her child is male to come in contact with the dead until within a few days of birth, at which point we must be concerned that she suddenly will go into labor. Even after this point, Rav Shternbuch is lenient in case of need.
  The lenient approach is remarkably well-founded on at least three considerations: the <i>Rokei’ach</i>’s <i>s’feik s’feika</i>, the idea that the mother shields the fetus from becoming <i>tamei meit</i>, and the assertion that the fetus does not have the status of a <i>kohen</i>. Nevertheless, Rav Schachter informs me that he is not convinced of any of these lenient approaches. Thus, <i>kohanim</i> and their wives must consult their Rav for a ruling regarding this matter.
  Postscript
  We should note that there is a well-known custom in many communities, independent of the <i>kohanim </i>issue, for pregnant women not to enter cemeteries.
  
  Cosmetics and Halacha
  
  Permanent and Semi Permanent Makeup, Cosmetic Tattooing
  
  Recently, procedures have been developed to tattoo permanent or semi-permanent makeup on women. In the process of applying permanent makeup, also known as micropigmentation, dermapigmentation, or cosmetic tattooing, a needle deposits colored pigments made from iron oxide into the skin’s dermal layer (the layer between the permanent base layer and the constantly changing top layer). This procedure is performed on the lips or around the eyes under antiseptic conditions, with the patient under anesthesia. The tattooing can be either permanent or semi-permanent, with the latter form lasting up to three years and eventually disintegrating. These procedures are very tempting for observant women (especially those blessed with the task of caring for young children), as they save time and avoid the problem of applying makeup on Shabbat.1<i class="footnote">We discuss the issue of applying makeup on Shabbat in a later chapter.</i> However, there are serious halachic problems associated with such makeup. The consensus among contemporary <i>poskim </i>is that it violates the prohibition of <i>kitovet ka’aka</i> (tattooing; Vayikra 19:28). We will explore the prohibition of applying a tattoo and see how contemporary <i>poskim</i> relate it to the issue of permanent and semi-permanent makeup. As with countless other contemporary halachic issues, <i>poskim</i> are compelled to define the parameters of <i>kitovet ka’aka</i> very rigorously in order to arrive at a conclusion.
  We will base our discussions on two essays on this topic that have been published in <i>Techumin</i>, one by Rav Ezra Basri (10:282-287) and the other by Rav Baruch Shraga (18:110-114). In addition, two prominent <i>poskim</i>, Rav Shraga Shneebalg of London (<i>Teshuvot Shraga Hamei’ir</i> 8:44 and 45) and Rav Natan Gestetner of Bnei Brak (<i>Teshuvot L’horot Natan</i> 10:64), have published <i>teshuvot </i>in recent years regarding cosmetic tattooing. Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi</i> 10:137) wrote a brief responsum on this issue as well.
  How Long Must <i>Kitovet Ka’aka</i> Last?
  The <i>Rishonim </i>disagree about how long a tattoo must last in order to constitute a violation of the prohibition of<i> kitovet ka’aka</i>. While Rashi (commentary to Vayikra 19:28 and Gittin 20b s.v. <i>Kitovet</i>) and the Ritva (Makkot 21a s.v. <i>Hakotev</i>) describe <i>kitovet ka’aka</i> as something permanent, the <i>Nimukei Yosef</i> (Makkot 4b in the pages of the Rif s.v. <i>Ad Sheyichtov</i>) defines <i>kitovet ka’aka</i> as something that lasts “for a long time.”
  Rav Gestetner points out that the Rambam (<i>Hilchot Avodat Kochavim</i> 12:11) and the Shulchan Aruch (Y.D. 180:1-4) do not limit the prohibition to permanent tattooing, thus implying that one violates the <i>kitovet ka’aka</i> prohibition even if the markings are not meant to last permanently, as the <i>Nimukei Yosef</i> believes. Moreover, Rav Gestetner suggests that when Rashi writes that <i>kitovet ka’aka</i> lasts “<i>l’olam</i>,” he does not mean “forever” literally. Elsewhere, (Shabbat 111b s.v. <i>V’eilu Kesharim</i>) Rashi uses this term in a context from which it is fairly obvious (in light of his comment on Shabbat 112a s.v. <i>B’d’chumrata</i>) that he means for a long period of time, not necessarily forever.2<i class="footnote">See the Mishnah Berurah’s introduction to O.C. 317, wherein he defines “<i>l’olam</i>,” in the context of tying a knot on Shabbat, as when one does not set a time to undo the knot and the knot is capable of lasting permanently.Ariel Herzog notes that the Torah (Shemot 21:6) states that if a Jewish slave elects to stay with his master at the end of his six years of servitude, he remains in bondage “<i>l’olam</i>,” which the Gemara (Kiddushin 15a) interprets to mean until the <i>yovel</i> (the fiftieth year of the agricultural cycle). This is another instance in which the term “<i>l’olam</i>” does not mean literally forever. Indeed, the Ibn Ezra (<i>Peirush Ha’aroch</i> to Shemot 21:6) proves from elsewhere in <i>Tanach</i> that the term <i>l’olam</i> means for a lengthy time and not forever. </i> Rav Gestetner rules that three years is considered “a long time,” and thus even semi-permanent cosmetic tattoos that last for three years are biblically prohibited even according to Rashi.
  Rav Shneebalg disagrees, but only about the severity of the prohibition – he understands Rashi to mean literally forever, and he therefore is inclined to consider semi-permanent cosmetic tattooing a rabbinic violation.3<i class="footnote">This understanding of Rashi seems to accord with the Mishnah Berurah’s comment cited in the previous footnote.</i> Indeed, all <i>Rishonim </i>agree that one violates at least a rabbinic prohibition even if the tattoo is not a permanent one. The proof to this is the debate in the Gemara (Makkot 21a) about whether one is permitted to put stove ashes on an open wound, which creates a mark that resembles a tattoo. This mark does not last very long and is undoubtedly classified as temporary. That the Gemara even raises the possibility of regarding such a mark as <i>kitovet ka’aka</i> proves that one violates at least a rabbinic prohibition even if the mark does not last forever. The Rivan4<i class="footnote">The primary Talmudic discussion of tattooing appears in <i>Masechet Makkot</i> (21a). Rashi did not finish his commentary to the last few pages of <i>Masechet Makkot</i>, so his son-in-law, the Rivan, completed his father-in-law’s commentary. Hence, we will be referring to the Rivan frequently in this chapter.</i> (ad. loc. s.v. <i>Uchtovet</i>) might also indicate this, as he writes that “It is forbidden to write any writing” on the flesh.
  How Deep Must the Tattoo Be?
  How deeply must the ink or dye be inserted to qualify as <i>kitovet ka’aka</i>? The Ritva (ad. loc.) writes that “The dye enters between the skin and the flesh.” Rav Shneebalg derives from this comment that one violates the prohibition even if the dye is inserted immediately below the skin level. It seems that the Shulchan Aruch (ad. loc.) agrees with this assessment, as he describes <i>kitovet ka’aka</i> as “scratching the flesh.” Even by penetrating one layer of skin, then, one violates the prohibition. As mentioned above, the process of cosmetic tattooing involves the insertion of the pigments into the skin’s dermal layer, which would appear to be included in the prohibition.
  We should clarify that the Mishnah (ad. loc.) imposes the punishment of <i>Malkot</i> (lashes) only on one who both writes and cuts the skin. The <i>Minchat Chinuch</i> (253:1) cites a dispute among the <i>Acharonim</i> as to whether one violates a rabbinic prohibition by merely writing on the skin without cutting it. The <i>Minchat Chinuch</i> observes that since the common practice among Jews is to avoid making indelible markings even if the skin is not cut, the normative Halachah follows the opinions that believe that it is a rabbinic prohibition to do so.
  The <i>Minchat Chinuch</i> clarifies, though, that this rabbinic prohibition obviously applies only if the mark cannot be erased. Simple writing on the hand with ink, however, is not prohibited at all. Although writing with ordinary ink on one’s skin is, generally speaking, undignified, it appears that it is not technically prohibited - <i>Chazal</i> forbade only activities that resemble <i>kitovet ka’aka</i> (see <i>Tosafot Gittin</i> 20b s.v. <i>B’chtovet</i>). Accordingly, it seems that it is permitted to have one’s hand stamped at an amusement park to prove that the admission fee has been paid – amusement park stamps and ordinary writing on the body do not resemble a tattoo at all. The fake tattoos that small children apply also seem to be permitted, even on a rabbinic level.5<i class="footnote">Rav Mordechai Willig told me that he believes this to be permissible.</i>
  The Order of the Process
  As mentioned, the Mishnah (Makkot 3:6) states that one receives <i>malkot</i> only if he both inserts the dye and scratches the skin. The Rivan (ad. loc. s.v. <i>Kitovet</i>) describes the process of <i>kitovet ka’aka</i> as specifically following that order – first writing and then making a tear in the skin. The Rambam (<i>Hilchot Avodat Kochavim</i> 12:11), on the other hand, describes <i>kitovet ka’aka</i> as first tearing the skin and subsequently inserting the dye. Might the status of cosmetic tattooing, in which a cut is made before dye is inserted, hinge on this dispute between the Rambam and the Rivan?
  The <i>Bach</i> (Y.D. 180 s.v. <i>V’hu Shekoteiv</i>) argues that there is in fact no dispute between the Rambam and the Rivan. The Rivan is merely following the order as it is found in the term “<i>kitovet ka’aka</i>” – writing then cutting – whereas the Rambam describes the process as it is normally conducted – cutting before writing. Although the Shulchan Aruch (Y.D. 180:1) describes <i>kitovet ka’aka</i> as first cutting the skin and subsequently inserting the dye, the Shach (Y.D. 180:1) indicates that one violates the biblical prohibition even if the order is reversed.6<i class="footnote">See the <i>Minchat Chinuch</i> (253:1), who interprets the Shach in this manner, but cites authorities who contend that the biblical prohibition applies only to the sequence described by the Rambam and the Shulchan Aruch.</i> Rav Gestetner adds that one also violates the biblical prohibition even if the writing and cutting occur simultaneously, which is what he understands cosmetic tattooing to entail.
  What Must Be Written?
  The <i>Teshuvot Me’il Tzedakah </i>(31, cited in the Pitchei Teshuvah Y.D. 180:1) asks whether one must write letters in order to violate the prohibition of <i>kitovet ka’aka</i> or whether any marking constitutes a violation. Though he suggests that creating a marking without writing is only a rabbinic prohibition, other <i>Acharonim</i> (such as the <i>Minchat Chinuch</i>) note that the <i>Rishonim</i> already disputed this matter.
  The <i>Semak</i> (72), Rabbeinu Peretz (cited in the <i>Semak</i>), the <i>Orchot Chaim</i> (22:4), and the <i>Sefer Hachinuch</i> (253) seem to believe that one violates this prohibition only if he tattoos letters into his skin. This approach might be based on the reason offered by the <i>Rishonim</i> (Rambam <i>Hilchot Avodat Kochavim</i> 12:11 and <i>Tur</i> Y.D. 180) for the prohibition of <i>kitovet ka’aka</i> – that idolaters would often tattoo the names of their gods into their skin, wishing to communicate that they were committed slaves to those particular gods. Accordingly, a number of <i>Rishonim</i> and <i>Acharonim</i> – the majority of them, according to Rav Basri – believe that one violates <i>kitovet ka’aka</i> only by writing letters, since this was the manner in which the idolaters expressed their commitment to idolatry.
  On the other hand, the <i>Minchat Chinuch</i> (253:3) judges that most <i>Rishonim</i> believe that one violates <i>kitovet ka’aka</i> even if he does not write letters. Among the <i>Rishonim</i> who explicitly state that writing is not necessary are the Ra’avad (<i>Torat Kohanim</i>, <i>Kedoshim</i> 76) and the Rash MiShantz (<i>ibid</i>.). Rav Gestetner argues that the Rambam (ad. loc.) and Shulchan Aruch (ad. loc.) also indicate that one violates <i>kitovet ka’aka</i> even without inscribing letters, as they make no mention of any such requirement.
  Rav Shneebalg asserts that all <i>Rishonim</i> would agree that one transgresses at least a rabbinic prohibition even if he does not write letters. He proves this from the Gemara’s suggestion that placing stove ashes on a wound might be prohibited because the resultant scab resembles a tattoo, as we discussed above. The scab obviously does not appear in the form of a letter. Nonetheless, the <i>Teshuvot Me’il Tzedakah</i> (31) suggests that the scab actually does look like a letter, in which case there is not necessarily even a rabbinic prohibition if no letters are written.
  Rav Avigdor Nebenzahl (cited in <i>Techumin</i> 18:113) believes that even the strict opinion among the <i>Rishonim</i> prohibits only imprinting a picture or figure, such as an anchor or a heart. Imprinting amorphous color, he asserts, does not qualify as writing and thus does not constitute <i>kitovet ka’aka</i>. Indeed, in the context of Shabbat, writing letters and drawing pictures are included under the single <i>av melachah</i> (one of the thirty-nine categories of prohibited Shabbat activity; see Rambam <i>Hilchot Shabbat</i> 12:9-17) of <i>koteiv </i>(writing), while coloring a surface is defined as <i>Tzovei’a </i>(coloring), an entirely separate <i>av melachah</i>. The Torah prohibits only <i>kitovet</i> (writing), not coloring. Accordingly, Rav Nebenzahl is inclined to permit semi-permanent cosmetics based on a combination of two lenient factors: the absence of any writing and the impermanence of the markings.
  In contrast, Rav Basri, Rav Gestetner, and Rav Shneebalg argue that according to the strict opinion, any form that is imprinted on the body is included in the prohibition. The Rambam and Shulchan Aruch also apparently endorse this position, as they declare that one transgresses this prohibition when he injects dye beneath the skin. Not only do they make no mention of a requirement for writing letters to violate the prohibition, but they also make no mention of a requirement for a picture or figure to be drawn. Furthermore, we may question Rav Nebenzahl’s proof based on the <i>Sefer Hachinuch</i>’s ruling (ad. loc.) that <i>beit din</i> punishes someone for tattooing just one letter, even though <i>beit din</i> does not punish for writing fewer than two letters on Shabbat. Since the rules governing writing itself are not the same for Shabbat and <i>kitovet ka’aka</i>, the distinction between writing and coloring that we find in the former might be irrelevant to the latter.
  Intriguingly, Rav Wosner forbids cosmetic tattooing not because of a technical violation of <i>kitovet ka’aka</i>, but because of “<i>serach issur kitovet ka’aka</i>,” which translates loosely to “because it will habituate one to <i>kitovet ka’aka</i>.”7<i class="footnote">See a similar usage of “<i>serach</i>” in <i>Masechet Eruvin </i>(40b).</i> Even if cosmetic tattooing is not exactly like tattooing proper (perhaps because of Rav Nebenzahl’s reasoning), it nevertheless resembles <i>kitovet ka’aka</i> too closely for comfort. As <i>Tosafot</i> (Gittin 20b s.v. <i>B’chtovet</i>) teach, <i>Chazal</i> forbade even acts that resemble <i>kitovet ka’aka</i>, such as making permanent markings on the skin without cutting it. Thus, even if Rav Nebentzahl’s argument is correct, it still would not suffice to permit cosmetic tattooing. Nevertheless, it might bolster the argument that the tattooing is only a violation of a rabbinic law.
  Purpose of the Tattooing
  The Mishnah (Makkot 3:6) records the opinion of Rabi Shimon that one is flogged for violating the prohibition of <i>kitovet ka’aka</i> only if he tattoos the name of an idol onto his skin. The <i>Chachamim</i>, however, require flogging for any tattoo. The <i>Rishonim</i> disagree about which opinion is regarded as normative. While we usually accept the majority opinion, the Gemara (<i>ibid</i>.) records a discussion of the opinion of Rabi Shimon, leading some <i>Rishonim</i> to conclude that his opinion is the accepted one. 8<i class="footnote">For a summary of the opinions, see the <i>Otzar Meforshei Hatalmud</i>, Makkot p. 847 note 20.</i> The <i>Beit Yosef</i> (Y.D. 180 s.v. <i>Shechayav</i>) quotes Rabbeinu Yerucham, who cites conflicting opinions and concludes that the Halachah follows the view of the <i>Chachamim</i>. The <i>Beit Yosef</i> agrees, noting that this also appears to be the opinion of the Rambam.
  The Rivan (Makkot 21a s.v. <i>Uchtovet</i>) writes that even Rabi Shimon prohibits tattooing any writing, even if it is not the name of an idol - Rabi Shimon and the <i>Chachamim</i> disagree only about whether one is flogged for such tattooing. It is possible, however, that one violates the prohibition of <i>kitovet ka’aka</i> on a biblical level only if his intention is for idolatry, even according to the stringent opinion of the <i>Chachamim</i>. Recall that the Rambam and the <i>Tur</i> maintain that the reason for the <i>kitovet ka’aka </i>prohibition is to avoid idolatry. Indeed, the <i>Chatam Sofer</i> (commentary to Gittin 20b s.v. <i>B’chtovet</i>) writes that one does not violate a biblical prohibition if he tattoos for non-idolatrous reasons. The Shach (Y.D. 180:6) seems to support this view, as he explains that it is permitted (on a biblical level) to put ashes on a wound because his wound proves that he is not coloring with idolatrous motives. The <i>Teshuvot Sho’eil Umeishiv</i> (2:1:49) agrees with the <i>Chatam Sofer</i>.
  The <i>Aruch Laner</i> (commentary to Makkot 21a s.v. <i>Gam Im</i>), on the other hand, states that one violates a biblical prohibition even if his intention is not for idolatry. The <i>Aruch Laner</i> and Rav Gestetner note that the Rambam and Shulchan Aruch seem to agree with this view, as they do not confine this prohibition only to one whose intention is for idolatry. Moreover, Rav Gestetner observes that <i>Tosafot</i> (Gittin 20b s.v. <i>B’chtovet</i>) clearly indicate that a biblical prohibition is violated even if one’s intention is not for idolatry.9<i class="footnote">The Maharam Schick (commentary to <i>Sefer Hamitzvot</i>, <i>mitzvah</i> 254) contends that the prohibition of <i>kitovet ka’aka</i> is related to the prohibition to imitate gentile practices (Vayikra 18:3) and as such is violated as long as the tattoo is made for no (substantive) reason.</i>
  Branding a Slave
  The <i>Chatam Sofer</i> (ad. loc.) acknowledges that normative Halachah undoubtedly forbids tattooing for non-idolatrous purposes, since the Rama (Y.D. 180:4) forbids branding one’s slave to avoid his escape. It seems from the Shulchan Aruch and Rama, however, that this is prohibited only on a rabbinic level. Commenting on the Shulchan Aruch’s statement that one who performs such a branding is “exempt,” the Rama adds that one should nonetheless refrain from this activity “<i>l’chatchilah</i> (initially).” Generally speaking, the Shulchan Aruch and Rama do not address issues of when one deserves to be flogged, because these authorities do not address issues that apply only in messianic times.10<i class="footnote">When one deserves flogging is currently relevant, though, regarding the laws of giving testimony; see Shulchan Aruch C.M. 34:2.</i> Consequently, it seems that the Shulchan Aruch is “exempting” the brander from the biblical prohibition, and the Rama is adding that one should still avoid such branding <i>l’chatchilah</i> because it entails a rabbinic violation. The reason why no biblical prohibition is violated, asserts the <i>Chatam Sofer</i>, is that there is no intention for idolatry. If so, cosmetic tattooing, which likewise does not involve idolatrous intent, constitutes only a rabbinic prohibition.
  The <i>Get Pashut</i> (124:30, cited by the <i>Minchat Chinuch</i> 253:2), offers a slightly different explanation for the exemption in the case of the slave. He suggests that the criterion for whether one violates the biblical prohibition of <i>kitovet ka’aka</i> is not whether his intent is for idolatry, but whether the purpose of the tattooing is for the writing to appear on one’s body. The <i>Get Pashut</i> asserts that the idolaters’ purpose in tattooing was for the actual writing to appear on the body. Therefore, one who does not do so for the purpose of the writing itself is not imitating the idolatrous practice and is exempt from the biblical prohibition. The objective of one who tattoos his slave is not the actual writing - he simply wants to deter the slave’s escape. As such, he does not violate a biblical prohibition. This is comparable to performing a prohibited labor on Shabbat when one’s purpose is not for the primary result of the labor (<i>melachah she’einah tzerichah l’gufah</i>). Normative Halachah (see Mishnah Berurah 316:34) accepts the opinion of Rabi Shimon that this type of action does not violate a biblical prohibition.
  It is not entirely clear how the <i>Get Pashut</i> would treat cosmetic tattooing. Rav Basri argues that he would not consider it a biblical prohibition, since its purpose is beauty, not writing <i>per se</i>. Rav Gestetner disagrees with this reasoning, contending that the purpose of cosmetic tattooing is indeed the writing, which makes it a full-fledged biblical prohibition.
  Moreover, both the <i>Minchat Chinuch</i> and Rav Gestetner question the <i>Get Pashut</i>’s explanation of the Shulchan Aruch. Rav Gestetner cites <i>Acharonim</i> (based on <i>Tosafot Shabbat</i> 75a s.v. <i>Tfei</i>) who posit that the exemption of <i>melachah she’einah tzerichah l’gufah</i> is unique to Shabbat. In fact, the <i>Pnei Yehoshua</i> (commenting on <i>Tosafot Shabbat </i>46b s.v. <i>D’chol</i>) argues that it does not even apply to <i>Yom Tov</i>! Thus, the concept is entirely irrelevant to the prohibition of <i>kitovet ka’aka</i>.
  Who Violates the Prohibition?
  Precisely how does one violate the prohibition of <i>kitovet ka’aka</i> – by actually inscribing the tattoo, or even by having it inscribed on his body? Which does the Torah intend when it commands (Vayikra 19:28), “<i>Uchtovet ka’aka lo titenu bachem</i>,” “You shall not put a tattoo on yourselves?” The Tosefta (Makkot 3:9) states that both aspects are included – both one who inscribes a tattoo and one who allows a tattoo to be made on his body violate the biblical prohibition.
  The Rambam (<i>Hilchot Avodat Kochavim</i> 12:11) seems to qualify this, stating that the one who permits the tattoo to be inscribed on his body is punished with <i>Malkot</i> only if he actively assists the inscription of the tattoo. This is an application of the rule that one is flogged only if he violates a sin that involves a physical action, such as eating non-kosher food or wearing <i>sha’atnez</i>. Nonetheless, the <i>Minchat Chinuch</i> (253:4) writes, one who allows a tattoo to be inscribed on his body violates a biblical prohibition despite his exemption from <i>Malkot</i>.
  It is not clear whether the Shulchan Aruch agrees with this last point. The Shulchan Aruch (Y.D. 180:2) writes that one who permits a tattoo to be inscribed in his body is “<i>patur</i>” if he did not assist in the inscription. Rav Shneebalg asserts that although one who has a cosmetic tattoo inscribed on his face does not assist in the process (an anesthetic is administered), he nevertheless transgresses a biblical prohibition. It is possible, though, that the terminology of “<i>patur</i>” in the Shulchan Aruch (in contradistinction to the Rambam’s phrasing, “He is not flogged”) might imply that only a rabbinic prohibition is violated. Thus, it is possible that one who undergoes cosmetic tattooing might violate only a rabbinic prohibition.
  It is important to add that Rav Shneebalg cites the <i>Yad Ketanah</i>,11<i class="footnote">The <i>Minchat Chinuch</i> (253:4) adopts this approach as well.</i> who asserts, based on the Tosefta and Rambam, that one violates the <i>kitovet ka’aka</i> prohibition on a Torah level even if the individual who inscribes the tattoo is not Jewish. Thus, the problem of cosmetic tattooing is not mitigated by using a non-Jewish technician, since one is forbidden to have a tattoo inscribed in his body, regardless of who is performing the inscription.
  Must One Remove a Cosmetic Tattoo?
  As we have explained, the Torah prohibits both applying a tattoo and allowing a tattoo to be applied to one’s body. Nowadays, though, tattoo removal is readily possible and is a common procedure. Does the Torah also forbid maintaining a tattoo on one’s body when he can so easily remove it? It seems from the Rambam and Shulchan Aruch that no such prohibition exists. However, it is possible that these authorities did not address this issue because in their time it was impossible to remove a tattoo.
  Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 3:11) discusses a case in which someone had a disgraceful tattoo on his body (applied before he became observant) on the place where he now affixed his <i>tefillin</i>. Dayan Weisz advises him to remove the tattoo, but makes no mention of an obligation to remove the tattoo under the <i>kitovet ka’aka</i> prohibition. Furthermore, Rav Ephraim Oshry (<i>Teshuvot Mima’amakim</i> 4:22) strongly urges a Holocaust survivor not to remove the tattoos that the evil Nazis (<i>yemach shemam</i>) branded on her. He writes, “God forbid that this woman should remove this number, because by doing so, she aids those who wish to erase the evil actions perpetrated on the Jewish people….Just the opposite, it is incumbent upon us to bear this mark with pride.” Accordingly, there appears to be no obligation to remove a tattoo. Still, Rav Eliyahu Bakshi-Doron (<i>Techumin</i> 22:387) recommends removing the tattoo to avoid the constant reminder of an earlier sin. In certain circumstances, he even permits the removal of Hashem’s name that was (sinfully) tattooed on one’s body, even though it is ordinarily forbidden to erase Hashem’s name.
  <i>Kevod Habriyot</i>
  Part of the reason for our preoccupation with whether cosmetic tattooing constitutes a biblical or rabbinic prohibition is that under certain exceptional circumstances, Halachah tolerates the violation of a rabbinic prohibition. The Gemara (Berachot 19b) states, for example, that one may violate a rabbinic prohibition for the sake of kevod habriyot (preserving human dignity).12<i class="footnote">Rav Daniel Feldman discusses this issue in depth in his <i>The Right and the Good </i>pp. 189-206.</i>
  Both Rav Basri and Rav Shneebalg are inclined to permit cosmetic tattooing in a case of <i>kevod habriyot</i>. For example, Rav Basri permits surgeons to tattoo eyebrows onto the forehead of a woman who has no eyebrows. Rav Shneebalg is inclined to permit cosmetic tattooing even in a more common situation – scar removal. In this procedure, a pigment that matches the color of human skin is injected beneath the scar, allowing that area to appear like the rest of the person’s skin. Although it seems to qualify as <i>kitovet ka’aka</i>, Rav Shneebalg permits it due to <i>kevod habriyot</i>.13<i class="footnote">Rav Shneebalg adds another compelling reason to be lenient. The procedure is conducted so that the scar should appear no different from the rest of the skin. “This,” suggests Rav Shneebalg, “does not at all resemble <i>kitovet ka’aka</i>.”</i>
  Conclusion
  The consensus of contemporary <i>poskim</i> forbids permanent and semi-permanent makeup. Rav Wosner rules that cosmetic tattooing is forbidden, though it is not clear if he believes it to constitute a biblical or a rabbinic prohibition. In addition, it is not clear whether Rav Wosner is addressing only permanent makeup or even semi-permanent makeup. Much less ambiguous are the <i>teshuvot</i> of Rav Gestener and Rav Shneebalg, who unequivocally rule that even semi-permanent makeup is forbidden. Rav Shneebalg is inclined to define it as a rabbinic prohibition, whereas Rav Gestetner is inclined to consider it a full-fledged biblical prohibition.
  Rav Baruch Shraga writes that he posed this question to many leading Israeli <i>poskim</i>, all of whom responded that even semi-permanent makeup is prohibited. These authorities included Rav Yosef Shalom Eliashiv, Rav Yisrael Yaakov Fischer, Rav Chaim Kanievsky, and Rav Ovadia Yosef. Rav Dovid Heber writes (p. 49 of the Star-K’s 2004 guide to Passover and Cosmetics) that he consulted many <i>poskim</i> about this matter, all of whom ruled strictly.
  Even so, some <i>poskim</i> are inclined to permit cosmetic tattooing in cases of extraordinary need. Other than such circumstances, it is difficult, as the <i>Minchat Chinuch</i> notes, to develop lenient approaches to this matter when the <i>Rishonim</i> and Shulchan Aruch all seem to allow no exceptions to this prohibition (as Rav Gestener underscores in his responsum).
  Two Final Thoughts
  Yet another problem with cosmetic tattooing, Rav Wosner writes, is that it violates the spirit of Halachah. Elsewhere (<i>Teshuvot Sheivet Halevi</i> 6:33), Rav Wosner frowns upon women putting on an excessive amount of makeup. Immoderate use of cosmetics is one of the reasons that the Gemara (Shabbat 62b) offers for the destruction of the <i>Beit Hamikdash</i>. The same applies, argues Rav Wosner, to cosmetic tattooing. As the Rambam teaches (<i>Hilchot Dei’ot</i> chapters 1-3), the Torah emphasizes moderation as a central value. While makeup for women can be appropriate if used in moderation – if a woman feels makeup is necessary for her in order to have a dignified appearance – inscribing makeup on one’s body is entirely out of proportion and immodest.
  Additionally, the Torah concludes its prohibition of <i>kitovet ka’aka</i> with the addendum, “I am Hashem.” A reason for this might be that Hashem wishes for us to internalize the essential idea that our bodies do not belong to us; rather, they are on loan to us from Him as tools with which to perform His <i>mitzvot</i>. Thus, we are not permitted to do just anything with our bodies. Whereas moderate use of cosmetics is certainly acceptable, almost all <i>poskim</i> deem cosmetic tattooing to be inconsistent with technical Halachah as well as with fundamental Torah values.
  
  Applying Cosmetics on Shabbat and Yom Tov
  
  
  
  
  
  In the next two chapters, we shall discuss a most sensitive topic, that of the use of cosmetics on Shabbat and <i>Yom Tov</i>. Many women consider it a necessity to wear makeup on these days, since it is specifically then that they appear in public in formal dress. Unfortunately, there are myriad halachic challenges associated with applying makeup on these occasions. In this chapter, we shall outline some of the major issues involved in the use of makeup on Shabbat and <i>Yom Tov</i> as well as potential solutions that are approved by some <i>poskim</i>.
  Gemara, <i>Rishonim</i>, and Classic <i>Acharonim</i>
  The Mishnah (Shabbat 10:6) records a dispute as to what level prohibition exists against applying blue color to the area around one’s eyes on Shabbat and <i>Yom Tov</i>. The <i>Chachamim</i> believe that it entails a rabbinic violation, while Rabi Eliezer believes that it is a biblical prohibition. The Gemara (Shabbat 95a) explains that Rabi Eliezer defines this act as <i>Tzovei’a</i> (coloring), one of the thirty-nine categories of creative activities that are forbidden on Shabbat.
  The <i>Rishonim</i> appear to disagree about which opinion is accepted as normative. The <i>Beit Yosef</i> (O.C. 303 s.v. <i>V’lo L’kchol</i>) writes that the Rambam rules in accordance with the <i>Chachamim</i>. The <i>Minchat Chinuch</i> (32:15) explains that this may be inferred from <i>Hilchot Shabbat</i> 22:23, where the Rambam writes, “It is forbidden for a woman to put <i>serek</i> (paint) on her face [on Shabbat and <i>Yom Tov</i>] because it is like painting.” The Rambam’s use of the word “like” implies that he believes that this is only a rabbinic prohibition – otherwise, he would have written, “It is painting.” Moreover, all of the other acts that the Rambam lists in chapter twenty-two are violations of rabbinic law, not biblical law. Thus, the context of this Halachah in the Rambam also indicates that the Rambam categorizes applying <i>serek</i> on Shabbat and <i>Yom Tov</i> as a rabbinic prohibition.
  The <i>Beit Yosef</i> remarks, though, that the <i>Semag</i> (<i>Lo Ta’aseh</i> 65) seems to rule in accordance with the opinion of Rabi Eliezer. The <i>Nishmat Adam</i> (<i>Hilchot Shabbat </i>24:1) notes that another <i>Rishon</i>, the <i>Sefer Yerei’im </i>(102) also agrees with the opinion of the <i>Semag</i>.1<i class="footnote">The <i>Nishmat Adam</i> believes that even the <i>Semag</i> and the <i>Sefer Yerei’im</i> accept the view of the <i>Chachamim</i>. He reinterprets the Gemara to allow for this conclusion.</i> Nevertheless, the <i>Beit Yosef</i> rules in accordance with the <i>Chachamim</i>. This is hardly surprising, as the majority opinion, which the “<i>Chachamim</i>” in the Mishnah generally represent, is usually accepted as normative.
  Among the major commentaries to the Shulchan Aruch, the Magen Avraham (303:19) rules in accordance with the Rambam, and the Vilna Gaon (Bei’ur Hagra 303:25) cites both the Rambam and the <i>Semag</i> (though he critiques the <i>Semag</i>). Later codifiers remain divided. The <i>Chayei Adam</i> (<i>Hilchot Shabbat</i> 24:2) cites both views without deciding which is accepted as normative. On the other hand, the Mishnah Berurah (303:79) and the <i>Aruch Hashulchan</i> (O.C. 303:30) rule unequivocally that it constitutes a rabbinic prohibition, in accordance with the position of the <i>Chachamim</i>, Rambam, <i>Beit Yosef</i>, and Magen Avraham.
  The Category of <i>Davar She’eino Mitkayeim</i>
  Those who rule that applying <i>serek</i> constitutes only a rabbinic prohibition do not explain why this should be. The <i>Chayei Adam</i> elucidates that the Rambam (who follows the <i>Chachamim</i>) considers <i>serek</i> to be an action whose effects are <i>eino mitkayeim</i> (temporary), rendering it only a rabbinic prohibition. The <i>Minchat Chinuch </i>criticizes this explanation, claiming that <i>serek </i>should in fact be considered <i>mitkayeim</i> (permanent). In order to appreciate this dispute, we must briefly explore the concept of <i>eino mitkayeim</i>.
  In the context of the rules concerning <i>boneh</i> (building) on Shabbat, the Mishnah (Shabbat 12:1) states a broad rule: “This is the rule – one who performs a creative act (<i>melachah</i>) that has a permanent effect (<i>mitkayeim</i>) has violated a biblical prohibition.” A <i>melachah</i> that has only a temporary effect, in contrast, entails only a rabbinic prohibition, and a <i>melachah</i> that is <i>eino mitkayeim klal</i> (fleeting) is actually permissible in certain limited situations.
  Although the rule is clear, its application is not, as it is difficult to define precisely the concept and parameters of <i>davar hamitkayeim</i>. The <i>Tiferet Yisrael</i> (<i>Kalkelet Hashabbat</i>, <i>Haboneh</i>) quotes from the Pri Megadim (<i>Eishel Avraham</i> 315:1) that a building that lasts eight or nine days is defined as <i>kavu’a</i> (lasting)2<i class="footnote"><i>Kavu’a</i> and <i>mitkayeim</i> seem to be synonymous.</i> regarding the laws of building on Shabbat. The Sha’ar Hatziyun (303:68) infers from the Rambam (<i>Hilchot Shabbat</i> 9:13) that a <i>melachah</i> is defined as <i>mitkayeim</i> if it lasts through the end of Shabbat, but he adds that Rashi (Shabbat 102b s.v. <i>B’shabbat</i>) believes that <i>mitkayeim</i> means lasting forever.3<i class="footnote">The Mishnah Berurah (introduction to O.C. 317), in the context of tying a knot on Shabbat, explains this to mean that one does not set a time to undo the knot and the knot is capable of lasting permanently. </i> In the context of the <i>melachah</i> of <i>kosheir</i> (tying a knot), the Rama (O.C. 317:1) cites two opinions regarding when a knot is considered “<i>shel kayama</i>” (lasting). One believes that it must last just one day to be defined as “permanent,” while the other holds that it must last seven days.4<i class="footnote">We should clarify that this debate is about whether a rabbinic prohibition is violated. A biblical prohibition is violated only if the knot is meant to last indefinitely (as defined in the preceding footnote).</i>
  To complicate matters further, it is clear that certain acts are considered <i>mitkayeim</i> even though their effects are fleeting. The Rambam (<i>Hilchot Shabbat</i> 12:2) writes that it is biblically prohibited to heat metal on Shabbat until it glows, even though the metal will cool down relatively quickly after it is heated. It is regarded as <i>mitkayeim</i> because one has accomplished his goal thereby.5<i class="footnote">It therefore constitutes <i>melechet machashevet</i> (creative, calculated labor; see <i>The 39 Melochos</i> p. 177-178 for more explanation), which is a prerequisite for violating the biblical prohibition of <i>melachah</i>. See the Rashba, Shabbat 115b s.v. <i>Ha D’amrinan</i>, who asserts that this is the reason why a <i>davar she’eino mitkayeim</i> is not biblically forbidden.</i> Rav Dovid Ribiat (<i>The 39 Melochos</i> 1:134 in the Hebrew section) explains that the concept of <i>mitkayeim</i> varies from <i>melachah</i> to <i>melachah</i> as well as from act to act. Since metal is usually heated to a glow only for a brief period, it is regarded as <i>mitkayeim</i>.6<i class="footnote">For further discussion of this question, see Rav Mordechai Eliyahu’s essay in <i>Techumin</i> (11:107-112) concerning doctors writing on Shabbat and <i>Yom Tov</i> with ink that lasts only until the end of the day.</i>
  Accordingly, we can appreciate the <i>Minchat Chinuch</i>’s criticism of the <i>Chayei Adam</i>’s assertion that putting <i>serek</i> on one’s face is considered <i>eino mitkayeim</i>. The <i>Minchat Chinuch</i> argues that since the applier has accomplished her goal, her act should be considered <i>mitkayeim</i>. Moreover, the <i>Ketzot Hashulchan </i>(146, <i>Badei Hashulchan</i> 20) notes that the Rambam (<i>Hilchot Shabbat</i> 22:23) does not classify the <i>serek</i> on a woman’s face as <i>eino mitkayeim</i>, whereas he does describe (<i>Hilchot Shabbat</i> 9:13) <i>serek</i> placed on iron as such. We must therefore look to other<i> Acharonim</i> for further explanation of this Rambam.
  Alternative Explanations for the Rambam
  The Mishnah Berurah (303:79) explains that applying <i>serek</i> is only a rabbinic prohibition because the biblical <i>melachah</i> of <i>tzovei’a</i> does not apply to coloring human skin. This is a somewhat novel assertion, as it is unclear when <i>melachot</i> do not apply to acts performed on the human body - there is no general rule that they do not. For example, the <i>melachot</i> of <i>boneh</i> (see Shabbat 95a and Ketubot 6b) and <i>koteiv</i> (writing; see Rambam <i>Hilchot Shabbat</i> 11:16) undoubtedly do apply to the human body. Rav Ribiat (<i>The 39 Melochos</i> p. 820) records a dispute among twentieth-century <i>poskim</i> as to whether the <i>melachah</i> of <i>tofeir</i> (sewing) applies to human skin.7<i class="footnote">This has serious implications regarding the question of physicians sewing stitches on Shabbat.</i> Thus, it is not self-evident that the <i>melachah</i> of <i>tzovei’a</i> does not apply to the human body, nor does the Mishnah Berurah cite a source for this assertion, leaving his underlying reasoning indeterminate.
  The <i>Ketzot Hashulchan</i> (146, <i>Badei Hashulchan </i>20) suggests that since women normally apply makeup with the intention to remove it within a few hours (such as before they go to sleep), applying makeup is considered <i>tzovei’a al menat limchok</i> (coloring with the intention to erase). Thus, a woman’s face is not a surface that is normally painted in a manner regarded as <i>mitkayeim</i>, which is why the biblical prohibition of <i>tzovei’a </i>does not apply to human skin and is considered <i>eino mitkayeim</i>.
  Accordingly, although the consensus opinion is that applying <i>serek</i> constitutes only a rabbinic prohibition, the basis for this approach remains unclear. In addition, significant <i>Rishonim</i> and <i>Acharonim</i> consider or rule in accordance with the view that applying <i>serek</i> constitutes a biblical prohibition.
  Twentieth-Century <i>Poskim</i> – the Strict View
  A straightforward application of the sources outlined seems to yield no room for leniency regarding the application of cosmetics on Shabbat – the only debate is whether applying makeup on Shabbat and <i>Yom Tov</i> constitutes a biblical or rabbinic prohibition. Accordingly, it is hardly surprising that many contemporary <i>poskim</i> oppose applying any colored makeup on Shabbat and <i>Yom Tov</i>. These authorities include Rav Shlomo Zalman Auerbach (<i>Shemirat Shabbat K’hilchatah</i> 14:59 footnote 158 and <i>Tikkunim Umili’um ibid</i>.), Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi</i> 6:33), Rav Gedalia Felder (<i>Yesodei Yeshurun</i> 4:72-73), and Rav Shimon Schwab (reported by Rav Dovid Heber). It is important to clarify that these authorities forbid even the use of what is called “<i>Shabbos</i> makeup,” special cosmetics that are produced for Shabbat and <i>Yom Tov</i> use and are approved by some <i>poskim</i>.
  Equally unsurprising, the authors of halachic works geared to popular audiences advocate (with slight variations) the strict approach to this issue. These works include Rav Yehoshua Neuwirth’s <i>Shemirat Shabbat K’hilchatah</i> (14:58-59), Dayan Yechezkel Posen’s <i>Kitzur Hilchot Shabbat</i> (21:4), Rav Dovid Ribiat’s <i>The 39 Melochos </i>(3:743), and Rav Doniel Neustadt’s <i>The Monthly Halachah Discussion</i> (p. 276). Rav J. David Bleich (<i>Contemporary Halakhic Problems IV</i>:113-119) also clearly indicates his preference for the strict approach to this issue. It seems, then, that the consensus among most <i>poskim</i> is to forbid virtually all forms of colored makeup on Shabbat and <i>Yom Tov</i>.
  The Motivations for the Lenient Approach
  Nevertheless, many major <i>poskim</i> present a lenient approach to permit women (in certain circumstances) to apply some cosmetics on Shabbat and <i>Yom Tov</i>. These authorities include Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe </i>O.C. 1:114 and 5:27), Rav Avraham Chaim Na’eh (<i>Ketzot Hashulchan </i>ad. loc.), and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer </i>6 O.C. 38 and <i>Teshuvot Yechaveh Da’at </i>4:28). Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik also agreed with the lenient approach to this issue.
  Rav Ovadia Yosef (in <i>Teshuvot Yabia Omer</i>) explicitly states a motivation for adopting a lenient stance on this issue. He registers concern that domestic tranquility might be disturbed if women are forbidden to wear makeup on Shabbat and <i>Yom Tov</i>. The source for this idea is the Gemara (Shabbat 64b) that records that Rabi Akiva permitted wives to wear makeup even when they were <i>niddot</i> in order to promote <i>shelom bayit </i>(domestic tranquility) between husband and wife.
  We may add that among the ten <i>takanot</i> (decrees) enacted by the biblical Ezra, as recounted in the Gemara (<i>Bava Kama </i>82a), was that towns could not restrict travelling salesmen from supplying perfume and fragrances to the women of each community. This demonstrates the sensitivity the Torah and <i>Chazal</i> display toward the needs of women and families regarding these matters.
  In <i>Teshuvot Yechaveh Da’at</i>, Rav Ovadia refers to the oft-quoted statement of the Gemara (Pesachim 66a) about an area of uncertainty with respect to <i>korban pesach</i>: “Leave it to the Jewish people; if they are not prophets then they are the children of prophets.” Rashi (ad. loc. s.v. <i>B’nei</i>) elaborates, “And [therefore] observe what they (the Jewish people) do,” which will resolve the uncertainty.8<i class="footnote">This principle applies only to an area of uncertainty in Halachah and to the practices of those who carefully observe Halachah.</i> Rav Ovadia applies this principle to our situation, noting that many women who are meticulously observant rely on the lenient approaches of Rav Moshe and Rav Na’eh.9<i class="footnote">Before we begin our presentation of the basis for the lenient view, we should note that there are some cosmetics that are specially formulated to last throughout Shabbat. Some women who follow the strict view apply these cosmetics before Shabbat. Wearing this type of makeup for all of Shabbat does not violate the prohibition of mar’it ayin (appearing to have sinned), since, as Rav Yonatan Eybeshitz (Kereiti Upeleiti), the Mishnah Berurah (467:33), and the Aruch Hashulchan (Y.D. 298:4) record, mar’it ayin does not apply when permissible ways to perform the action in question are known. For example, it is not forbidden to drink red wine, even though it appears like drinking blood, since it is known that people drink red wine. Similarly, a woman need not be concerned that people will think she applied her makeup on Shabbat, since people know that makeup that lasts throughout Shabbat even if it is applied beforehand is available.</i>
  The Lenient Approaches of Rav Moshe, Rav Na’eh and Rav Ovadia
  The point of departure for the lenient view is that the prohibition to apply <i>serek </i>is only rabbinic in nature. Once it is proven that the prohibition to apply <i>serek</i> is only rabbinic in nature, there is more room to be lenient about applying cosmetics than there would be if it were classified as a biblical prohibition.
  To this end, the <i>Ketzot Hashulchan</i> distinguishes between the <i>serek</i> cosmetic that the Gemara, <i>Rishonim</i>, and classic <i>Acharonim</i> discuss and the blush used today that does not adhere to the skin for a significant period of time. He argues that <i>Chazal</i> prohibit only <i>serek</i>, which adheres to the skin. However, blush that is applied directly to the skin without a cosmetic base (“foundation”) does not adhere to the skin, and thus is not included in the rabbinic prohibition to apply <i>serek</i> to one’s face. Rav Ovadia clarifies, though, that this leniency applies only to powders that are not oil-based and contain no creams.10<i class="footnote">Rav Dovid Heber informs me that the fact that the word “oil” does not appear on the label of a cosmetic is not sufficient evidence that it does not in fact contain oil, as one of the other ingredients may be oil-based.</i>
  Rav Moshe takes a similar tack to the <i>Ketzot Hashulchan</i>’s, writing in his first (and exceptionally brief and cryptic) responsum on this topic (<i>Teshuvot Igrot Moshe</i> O.C. 1:114), “White11<i class="footnote">In the later <i>teshuvah</i>, he clarifies that this applies to colored powder as well. </i> powder that does not last at all (“<i>eino mitkayeim klal</i>”) is not included in the prohibition of <i>tzovei’a</i>.”
  We must elucidate the concept of <i>eino mitkayeim klal </i>in order to understand Rav Moshe’s ruling. We mentioned earlier that in very limited circumstances, a <i>melachah</i> that lasts for an exceptionally brief period of time is permitted. The fact that one is permitted (see Shulchan Aruch O.C. 317:1) to tie his shoes on Shabbat (if he ties and unties them daily) is a classic application of this principle. Another example is the lenient ruling of many <i>poskim</i>12<i class="footnote">See <i>Shemirat Shabbat K’hilchatah</i> 15 footnote 250; <i>Teshuvot Yechaveh Da’at </i>6:24; and Rav Moshe Feinstein, cited in <i>The 39 Melochos </i>1:137 in the Hebrew section.</i> that fastening the adhesive tabs on a child’s diaper on Shabbat is permitted, even though fastening two objects to each other is forbidden under the rubric of <i>tofeir</i> (sewing; see Shulchan Aruch O.C. 340:14).
  We can explain Rav Moshe’s leniency regarding makeup in a similar manner. Whereas applying <i>serek</i> is a rabbinic prohibition because <i>Chazal</i> classify it as <i>eino mitkayeim</i>, cosmetic powder that does not last long is not forbidden because it is <i>eino mitkayeim klal</i>.
  Even so, applying those cosmetics that are specially formulated to be long-lasting might constitute a biblical prohibition on Shabbat. These cosmetics, which are often designed to be applied before Shabbat and to last throughout Shabbat, are sometimes referred to as “<i>Shabbos </i>makeup.” Rav Dovid Heber points out that this is a serious misnomer – they should more properly be labeled “<i>erev Shabbos </i>makeup.” A woman should be especially careful not to apply such makeup on Shabbat, as it seems to qualify as <i>mitkayeim</i> according to the Rambam’s definition (presented above), in which case it constitutes a biblical prohibition.13<i class="footnote">Two types of “Shabbos makeup” are marketed today. One type is intended to be applied on Shabbat itself in accordance with the lenient approach of Rav Moshe, Rav Na’eh, and Rav Ovadia. The other type is designed to last for a longer period of time and is applied before Shabbat.</i>
  Rav Shlomo Zalman, however, rejects the lenient approach, stating that there is no source to permit <i>tzovei’a</i> even if it is <i>eino mitkayeim klal</i>.14<i class="footnote">Rav Shlomo Zalman was an extraordinary expert regarding <i>Hilchot Shabbat</i>, so his assertion that no source exists is exceptionally authoritative. </i> Moreover, he writes that one should be especially cautious about this issue since, according to a number of <i>Rishonim</i> (as we discussed above), the application of makeup is always biblically prohibited. In fact, Rav Gedalia Felder (<i>Yesodei Yeshurun </i>4:72) points out that the Shulchan Aruch (O.C. 303:25) forbids a woman to spread dough on her face to give it a red appearance, which seems to indicate that Halachah forbids coloring the face even in a manner that is fleeting.
  Practical Applications
  Rav Moshe (in his later responsum <i>Teshuvot Igrot Moshe </i>O.C. 5:27; see also the publication of Rav Moshe’s Mesivta Tifereth Jerusalem, <i>L’Torah V’hora’ah</i>, 7:28) clarifies that after extensive testing, he discovered that many of the commercially available cosmetic powders are analogous to <i>serek</i>, since they last for a significant amount of time. These powders are therefore subject to the prohibition of <i>tzovei’a</i>. However, he notes that some powders do not last very long and would be permissible, concluding, “Without experience regarding this matter, it is difficult to issue a decision about it.”
  Rav Dovid Heber reports that there are still <i>poskim </i>who participated in Rav Moshe’s thorough investigation and testing of cosmetic powders. He therefore instructs15<i class="footnote">Rav Heber’s essay on this topic is available at www.star-k.org.</i> that to rely on Rav Moshe’s leniency, one must use only powders that have been tested by a <i>poseik</i> who has specific and proper training and who has determined that the powders in question are “temporary” enough to conform to Rav Moshe’s standards.
  Undoubtedly, Rav Moshe’s standards are difficult to quantify objectively. Indeed, Rav Bleich and Rav Neustadt argue that it is nearly impossible to implement Rav Moshe’s lenient ruling in practice because of this lack of objective standards. On the other hand, there are other areas of Halachah that are difficult to quantify, yet we rely on the judgment of <i>poskim </i>who are properly trained and experienced in these matters.16<i class="footnote">For example, judging colors in the context of <i>hilchot niddah</i>; see Shulchan Aruch Y.D. 188 and <i>Badei Hashulchan</i> 188:6. <i>Poskim</i> do not use specific color charts as standards for determining colors in this context. The ability to make such determinations is passed from teacher to student.</i>
  Conclusion
  Many cosmetics are forbidden on Shabbat and <i>Yom Tov</i> according to all opinions. No consensus has been reached, though, regarding the permissibility of the use of temporary makeup on Shabbat and <i>Yom Tov</i>. Undoubtedly, it is best to avoid applying any makeup on these days. However, some <i>poskim</i> believe that if a woman feels that it is essential for her to apply makeup on Shabbat and <i>Yom Tov</i>, she has the right to follow the lenient opinion if she strictly adheres to Rav Moshe’s guidelines. This is especially true in light of the fact that the Rambam, <i>Beit Yosef</i>, Magen Avraham, Mishnah Berurah, and <i>Aruch Hashulchan</i> all agree that the prohibition of applying makeup is only rabbinic in nature. Even those who wish to follow the lenient <i>poskim</i>, however, must keep in mind that they do not permit applying makeup indiscriminately, as we shall see in our next chapter.
  
  
  
  In the last chapter, we reviewed the strict and lenient approaches articulated by the twentieth-century <i>poskim</i> regarding the application of makeup on Shabbat and <i>Yom Tov</i>. We shall now conclude with a discussion of some specific issues and challenges regarding the application of makeup on Shabbat and <i>Yom Tov</i> even according to the lenient opinion.
  Lipstick and Lip Gloss
  Rav Moshe writes (<i>Teshuvot Igrot Moshe </i>O.C. 1:114) that lipstick can not be applied on Shabbat and <i>Yom Tov</i> because doing so violates <i>tzovei’a</i> and <i>memacheik </i>(smoothing), the latter of which occurs when the surface of the lipstick bar is rubbed.1<i class="footnote">This is similar to the practice not to use bar soap on Shabbat; see Mishnah Berurah 326:30. See, though, <i>Teshuvot Yechaveh Da’at</i> (2:50).</i> However, Rav Dovid Heber reports that some commercially available lipstick powders2<i class="footnote">The use of powder rather than a bar circumvents the issue of <i>memacheik</i>.</i> made for Shabbat use are not long-lasting and meet Rav Moshe’s criteria of <i>eino mitkayeim klal</i>, making them permissible for use on Shabbat. Some <i>poskim</i> object to the use of these lip powders anyway, claiming that the powder mixes with saliva and becomes long-lasting. Rav Heber relates, though, that he consulted with three cosmetic chemists, all of whom agreed that the saliva does not make the lip powder long-lasting.
  Rav Moshe forbids even liquid lipstick on Shabbat and <i>Yom Tov</i> because of <i>tzovei’a</i>, which Rav Bleich explains to refer to lip gloss. This appears difficult, as untinted, clear lip gloss merely produces a shine but does not color the lips. The answer lies in the Mishnah Berurah (327:12, as explained by Rav Shlomo Zalman Auerbach, <i>Shemirat Shabbat K’hilchatah</i> 14: footnote 152), who writes that he believes there is concern for <i>tzovei’a </i>even if one creates only a shine. Thus, both Rav Moshe and Rav Shlomo Zalman rule that clear lip gloss is forbidden to be used on Shabbat and <i>Yom Tov </i>(unless it is <i>eino mitkayeim klal</i>, in which case Rav Moshe would permit its use).
  Interestingly, Rav Heber relates that he heard that when Rav Moshe was shown clear lip gloss, he responded that it is forbidden because it creates a shine, but remarked that some authorities are lenient regarding this issue. Indeed, the Mishnah Berurah does not cite a source for his belief that creating a shine constitutes <i>tzovei’a</i>, stating only that there is a concern for <i>tzovei’a</i>, which may indicate that he was not thoroughly convinced of his assertion. Nonetheless, I have not discovered any prominent <i>poskim </i>who disagree with the strict rulings of Rav Moshe and Rav Shlomo Zalman.
  Loose Powder
  Rav Moshe writes (<i>Teshuvot Igrot Moshe </i>O.C. 5:27) that any make-up powder must be prepared before Shabbat. Though he does not present a reason for this requirement, Rav Heber reports that Rav Moshe explained to his students that there is a problem of <i>tochein</i> (grinding)3<i class="footnote"><i>Tochein</i> is the <i>av melachah</i> forbidding the breaking of certain items into very small pieces.</i> if one removes the powder from the cake on Shabbat.
  Rav Moshe’s ruling is somewhat debatable, given that the powder was ground before it was formed into a cake during its manufacture. Thus, it would seem to fall under the rule of <i>ein tochein achar tochein</i>, which dictates that one may perform <i>tochein</i> a second time on an item that was previously ground. For instance, the Rama (O.C. 321:12) specifically permits crumbling bread into crumbs to feed one’s animals on Shabbat, since the bread was ground during its production. The same rule should apply, at first glance, to makeup powder, which would allow the consumer to “grind” the previously ground makeup powder.
  Nevertheless, the principle of <i>ein tochein achar tochein</i> does not appear in the Gemara, nor is it self-evident. The Ran (32a in the pages of the Rif s.v. <i>Amar Rav Papa</i>) and the <i>Sefer Yerei’im </i>(274) present this idea, which is supported by the Tosefta (Shabbat 13:12). However, the <i>Chayei Adam</i> (<i>Hilchot Shabbat</i> 17:4) notes that a minority view does not subscribe to this principle,4<i class="footnote">See the <i>Rishonim</i> cited in the <i>Encyclopedia Talmudit</i> (19:179 footnote 334), who seem not to subscribe to this notion.</i> and the <i>Chayei Adam </i>himself urges one to avoid relying on this leniency.
  Thus, since the principle of <i>ein tochein achar tochein</i> is somewhat novel and is subject to debate, several <i>Acharonim</i> seek to limit its application. In fact, the <i>Ketzot Hashulchan</i> (129:16) cites <i>Acharonim</i> who argue that the principle of <i>ein tochein achar tochein</i> applies only to food items. Since the Rama’s ruling is presented in the context of food – crumbling bread – perhaps we should not extend it beyond the Rama’s ruling (<i>ein lecha bo ela chiddusho</i>). Indeed, Rav Heber reports, Rav Moshe explained to his students that he ruled strictly regarding makeup because he believes that <i>ein tochein achar tochein</i> applies only to food items.
  Moisturizers and <i>Memarei’ach</i>
  Rav Moshe (<i>Teshuvot Igrot Moshe</i> O.C. 5:27) cautions women to avoid violating the <i>melachah</i> of <i>memacheik </i>when applying makeup. A prime example of this is the application of moisturizer on Shabbat and <i>Yom Tov</i> – as Rav Heber observes, almost all varieties of moisturizers are in a cream form, making their application fall under the “<i>memarei’ach</i>” subcategory (<i>toladah</i>) of <i>memacheik</i>.
  <i>Memarei’ach</i> refers to “smoothing soft, pliable substances that may be pressed or molded to a shape” (Rav Dovid Ribiat, <i>The 39 Melochos</i>, 3:913). A prime example of this is the Mishnah (Shabbat 22:3) that forbids spreading wax to seal a hole in a barrel. The Gemara (Shabbat 146b) records a dispute between Rav and Shmuel whether this prohibition applies also to spreading oil to seal such a hole. Rav asserts that it is a rabbinic prohibition5<i class="footnote"><i>Memarei’ach</i> on a biblical level applies only to pliable solids. Oil does not fall into this category and as such is prohibited only on a rabbinic level.</i> to spread oil lest one come to spread wax, whereas Shmuel permits this activity, as he does not see the necessity for creating such a <i>gezeirah </i>(rabbinic enactment). The Halachah follows Rav (Rambam <i>Hilchot Shabbat</i> 23:11 and Shulchan Aruch O.C. 314:11), as is the usual protocol in the context of ritual matters (<i>issurei</i>). Rav Ribiat (<i>The 39 Melochos </i>3:919) writes that rouge creams, eye-shadow creams, petroleum jelly, and hand creams such as Nivea and Desitin are included in this rabbinic prohibition.
  However, even Rav appears to concede that this rabbinic prohibition does not apply to all substances. Rashi (ad. loc. s.v. <i>Mishcha</i>) specifies that it applies only to thick oil, and the Shulchan Aruch (O.C. 314:11, as emphasized by the Mishnah Berurah 314:46) rules in accordance with Rashi. The Mishnah Berurah explains that since thick oil may be spread somewhat, it is similar enough to wax to necessitate the <i>gezeirah</i>, while thin oil does not resemble wax at all and therefore is permitted.
  Defining Memarei’ach
  The question, then, is how to determine precisely which items are considered “thick oils” to be included in this rabbinic prohibition. A classic illustration of this problem is the question of using liquid soap on Shabbat. The <i>Aruch Hashulchan</i> (O.C. 326:11) and the <i>Ketzot Hashulchan</i> (146:32) permit the use of liquid soap on Shabbat, contending that liquid soap is not comparable to thick oil and thus is not subject to the prohibition of <i>memarei’ach</i>. Dayan Posen (<i>Kitzur Hilchot Shabbat</i> p. 74) notes that the common practice is to follow this lenient ruling. The <i>Shemirat Shabbat K’hilchatah </i>(14:16) also rules in accordance with this opinion.
  Based on this ruling, Dayan Posen (ad. loc.; p. 147, 32:19) sets a standard for what items are included in the rabbinic prohibition of <i>memarei’ach</i>: Anything that is thick to the extent that it cannot pour, does not flow by itself, and needs to be smoothed out is similar to <i>memarei’ach </i>and is forbidden. Liquid soap is permissible since it pours, flows by itself, and does not need to be smoothed out.
  Dayan Posen adds that since this is only a rabbinic prohibition for which the classic <i>poskim</i> present no objective standard, one has the right to adopt a limited view of its scope. Rav Ribiat (<i>The 39 Melochos </i>3:920) essentially adopts this approach as normative.6<i class="footnote">He discusses this issue at length in a Hebrew footnote (3:682-685). </i> Based on this standard, Rav Ribiat permits the use of baby oils, lubricating jellies, and olive oil on Shabbat.
  On the other hand, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:113) expresses serious reservations regarding the lenient practice of many to use liquid soap on Shabbat. He is concerned that even liquid soap can be spread and thus should be included in the rabbinic prohibition of <i>memarei’ach</i>. Rav Ribiat notes (ad. loc. 3:680 in a Hebrew footnote) that there are those who accommodate Rav Moshe’s strict view by watering down their liquid soap before Shabbat.
  Rav Heber reports that Rav Moshe Heinemann adopts a compromise position between Rav Moshe and Dayan Posen. Rav Heber reports that Rav Heinemann tested the viscosity7<i class="footnote">Viscosity refers to the property of resistance to flow in a fluid, measured in centipoises (cP).</i> of various liquid soaps. He concluded that only oils with a viscosity of 600 cP or less are not included in the rabbinic prohibition. Thus, he forbids the use of Softsoap Liquid Hand Soap on Shabbat, since its viscosity is higher than 600 cP. On the other hand, he permits Ultra Dawn Concentrated Dish Liquid/Anti-Bacterial Hand Soap, because its viscosity is 600 cP. He notes, though, that this measurement applies only when the room temperature is 70 degrees Fahrenheit; the lower the temperature, the higher the viscosity.
  In summary, three standards exist regarding the definition of <i>memarei’ach</i> on Shabbat: Rav Moshe’s, Dayan Posen’s, and Rav Heinemann’s. One should consult his Rav for a ruling regarding which opinion to follow. This dispute impacts the permissibility of using moisturizers, as a specially prepared, watered-down moisturizer might be permissible to use on Shabbat and <i>Yom Tov</i>. The unresolved question is how much it must be watered down to become permissible for Shabbat and <i>Yom Tov</i> use.
  Finally, we should note that one must be careful when removing makeup to ensure that no <i>melachah</i> is performed in the process. Examples of possible violations include <i>memarei’ach</i> if a thick makeup remover is used and <i>sechitah</i> (squeezing) if a wet cotton ball or Q-tip is used.8<i class="footnote">See <i>The Daily Halachah Discussion </i>(pp. 241-2) for a discussion whether <i>sechitah </i>is violated when using cotton balls and Q-tips.</i>
  Conclusion
  Although many cosmetics are forbidden to be used on Shabbat and <i>Yom Tov</i> according to all <i>poskim</i>, no consensus has emerged regarding the permissibility of temporary makeup. Even according to the lenient opinion, only products that a competent and trained <i>poseik </i>has permitted for use on Shabbat and <i>Yom Tov</i> may be used. It is also strongly recommended that a woman who wants to follow the lenient approach consult Rav Heber’s essay (available at www.star-k.org) for a lengthy description of how to avoid the numerous pitfalls involved in applying and removing makeup on Shabbat and <i>Yom Tov</i>.
  
  Cosmetics and Toiletries for Pesach
  
  There is much debate as to whether cosmetics and toiletries must be <i>chametz</i>-free in order to be used on <i>Pesach</i>. In this chapter, we hope to clarify the points of contention and outline the halachic basis for both the lenient and strict approaches to this issue.
  Talmudic Background – <i>Eino Ra’ui L’achilat Kelev</i> and <i>Achsheveih</i>
  The Gemara (Pesachim 21b) states that if <i>chametz</i> is burned before <i>erev Pesach</i>, one is permitted to benefit from it on <i>Pesach</i>. <i>Tosafot</i> (ad. loc. s.v. <i>Chorcho</i>) clarify that this rule applies only if the bread was so thoroughly burned that it is no longer fit even for a dog to eat.
  A similar rule applies to all forbidden foods – as the Gemara (Avodah Zarah 67b-68a) states, the Torah forbids only food that is fit for human consumption. Regarding <i>Pesach</i>, however, we are stricter, requiring that the <i>chametz</i> be unworthy even for canine consumption.1<i class="footnote">This is consistent with Halachah’s unusually strict overall approach to <i>chametz</i> on <i>Pesach</i>, which manifests itself in such laws as the prohibition to own <i>chametz</i> and the impossibility of nullifying it in a mixture. </i> The Ran (13b in the pages of the Rif s.v. <i>Tanu Rabbanan</i>) and the Magen Avraham (442:14) explain that <i>chametz</i> that is fit for canine consumption has the potential to ferment bread. Hence, it is similar to sourdough, which the Torah (Shemot 12:19) specifically forbids for <i>Pesach</i> consumption.
  Although the Gemara makes clear that one may benefit from <i>chametz</i> that is no longer <i>ra’ui l’achilat kelev</i>, the <i>Rishonim</i> debate the permissibility of actually eating it. The Rosh (Pesachim 2:1) cites opinions that one may even eat such <i>chametz</i>. He himself rejects this view, however, and rules that one may only benefit from such <i>chametz</i> (as explicitly stated in the Gemara); by eating it, one would “elevate” the <i>chametz</i> (<i>achsheveih</i>) from a non-food item to a food item. The basis for this is the Gemara’s (Shevuot 24b) ruling that if one swears not to eat an inedible item and subsequently eats it, he has then violated his oath because he has “elevated” that item to the status of food by consuming it. The Shulchan Aruch (O.C. 442:9; see Mishnah Berurah 442:43) rules in accordance with the Rosh.
  Although normative Halachah does accept that <i>achsheveih</i> creates a food status, the principle has some limitations. The Taz (O.C. 442:8) clarifies that <i>achsheveih</i> creates only a rabbinic prohibition, with which the Mishnah Berurah (442:43) and <i>Aruch Hashulchan</i> (O.C. 442:30) agree.2<i class="footnote">The <i>Bach</i> (O.C. 442 s.v. <i>V’yeish Omrim Shemutar</i>), though, seems to disagree with the Taz.</i> Furthermore, the Shulchan Aruch (O.C. 442:10) permits writing on <i>chol hamo’eid Pesach</i>3<i class="footnote">This is assuming that the situation is one in which writing itself is permissible on <i>chol hamo’eid</i> (see Shulchan Aruch O.C. 545).</i> with ink that was cooked in barley beer in the course of its preparation. The Mishnah Berurah (442:45, citing the Magen Avraham 442:15 in the name of the <i>Terumat Hadeshen </i>129) adds that this is permitted even though a scribe might absentmindedly put his quill in his mouth (as was done in the pre-modern age), because <i>achsheveih</i> applies only if one intentionally eats the item.
  Is Denatured Alcohol Considered <i>Eino Ra’ui L’achilat Kelev</i>?
  It is often difficult to determine what is considered <i>nifsal mei’achilat kelev</i>. In fact, Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo </i>1:17) suggests that just because we modern eaters are finicky (<i>mefunakim</i>) and regard certain items as disgusting does not necessarily give us the right to classify these items as unsuitable for human consumption.4<i class="footnote">Rav Shlomo Zalman is discussing the classification of inedible foods for non-<i>Pesach</i> use, for which the determining factor is whether the food is fit for human consumption. The same question, though, should apply to <i>eino ra’ui l’achilat kelev</i> foods for <i>Pesach</i> use. Just because we think, based on common sense, that a dog would not eat a certain food does not mean that it truly falls into the category of <i>eino ra’ui l’achilat kelev</i>.</i> For example, the Rambam (<i>Hilchot Tum’at Ochlin</i> 10:2) writes that human ear and nose excretions, as well as human urine, are considered suitable for human consumption. Rav Shlomo Zalman is unsure whether such definitions of <i>ra’ui l’achilah</i> are subject to change depending on the standards of each generation.
  One example of the challenge of defining <i>eino ra’ui l’achilat kelev</i> is the dispute between modern <i>poskim</i> about denatured alcohol. The alcohol in cosmetics and toiletries is not pure alcohol – it is significantly modified in ways that render it unsuitable for drinking as a beverage. This is done so that the companies that use such alcohol in their products do not have to pay a liquor tax.5<i class="footnote">Rav Dovid Heber reports that the United States Bureau of Alcohol, Tobacco, Firearms and Explosives is extraordinarily strict (even stricter than the Internal Revenue Service) in monitoring the sale of alcohol. Thus, in order to avoid paying liquor taxes, companies strictly ensure that the alcohol they use for such products is denatured to make it unsuitable for drinking as a beverage.</i> However, certain chemicals can be added to reconstitute the alcohol and render it drinkable. Does Halachah assess the denatured alcohol in cosmetics and toiletries according to its present state or according to its potential state of restored potability?
  Rav Tzvi Pesach Frank (<i>Mikra’ei Kodesh</i> 54) argues that it is forbidden to derive benefit from denatured alcohol on <i>Pesach</i>. He points out that the <i>Chavat Da’at</i> (Y.D. <i>Bei’urim</i> 103:1) distinguishes between a case in which a prohibited item itself is <i>nifsal</i>, which is permissible to benefit from, and a case in which the item is <i>nifsal</i> only due to being mixed with other ingredients, which, if it can be restored, is prohibited even while it remains unrestored. Since denatured alcohol falls into the latter category, it should be prohibited. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 3:62) also prohibits benefiting from denatured alcohol, arguing that it is considered suitable for consumption. Rav Moshe explains that “There are those [indigent alcoholics] who drink this with only slight additions and modifications.” The <i>Teshuvot Minchat Elazar </i>(5:37), on the other hand, rules that pure denatured alcohol technically is not considered suitable for consumption, though he notes that common practice is to be strict about this matter. The <i>Minchat Elazar</i> believes that the aberrant behavior of marginal members of society cannot determine the standards of <i>ra’ui l’achilat kelev</i> for the entire community. In general (see, for example, Shulchan Aruch O.C. 168:6 and Y.D. 198:1), Halachah would say of such people, “<i>Batlah da’atan eitzel kol haberiyot</i>” (their opinion is disregarded in the face of everyone else’s). Rav Yosef Adler told me that Rav Yosef Dov Soloveitchik agreed with this approach.
  Rav Moshe takes it as a given that the potential for the “slight modifications” that make denatured alcohol potable are halachically significant. As Rav Frank notes, many of the great early-twentieth-century <i>poskim </i>doubted whether this potential renders denatured alcohol potable for mainstream society. While Rav Eliyahu Klatzkin (<i>Devar Eliyahu</i> 5) rules stringently, the <i>Teshuvot Atzei Halevanon </i>(17) is lenient and disregards the possibility of chemical restoration. The <i>Teshuvot Minchat Elazar</i> buttresses this lenient view with the observation of <i>Tosafot</i> (Pesachim 46b second s.v. <i>Ho’il</i>) that the Mishnah (Pesachim 2:2) allows benefiting from <i>chametz</i> that a non-Jew owned during <i>Pesach</i>, even though a Jew could easily have purchased the <i>chametz</i> from the non-Jew. Apparently, the feasibility of changing an item’s status is halachically irrelevant. The <i>Minchat Elazar </i>therefore permits one who fueled his car with gasoline that had alcohol mixed in to drive the car on <i>chol hamo’eid Pesach</i>, even though the alcohol can potentially be restored to a drinkable form by a chemical process.
  Proofs to Each Approach
  One proof to the strict approach, offered by Rav Gedalia Felder (<i>Yesodei Yeshurun </i>6 p. 227), is the Gemara (Eruvin 28b) that deems bitter almonds edible because they can be rendered edible by roasting. Apparently, any item that can be rendered edible by a comparably simple process is considered edible even before this process occurs. Raw spaghetti, which can be rendered edible simply by being boiled, is an apt modern analogue to the Gemara’s bitter almonds. Since, Rav Moshe claims, denatured alcohol can be restored to an unquestionably potable state with little effort, it should have the same status as the almonds and spaghetti.
  On the other hand, Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:31)6<i class="footnote">Rav Chaim Ozer is addressing the permissibility of a medicine that contains an inedible non-kosher ingredient. </i> contends (based on the <i>Chavat Da’at </i>Y.D. <i>Bei’urim</i> 103:1) that we consider the potential of an inedible item to be reconstituted only if this is what normally occurs to such items (<i>omeid l’kach)</i>. Raw spaghetti is thus considered edible, since it is normally cooked. Similarly, the Torah forbids using sourdough on <i>Pesach</i> even though it is inedible because it normally facilitates baking bread. Denatured alcohol, on the other hand, is not generally modified for consumption purposes, so it is not analogous to bitter almonds and is not considered edible.
  Rav Felder also suggests a proof to the lenient view. Although we are forbidden even to benefit from <i>chametz</i>, the Shulchan Aruch (O.C. 442:9, and see Mishnah Berurah 442:42) permits using <i>chametz</i> as a seat if the <i>chametz</i> has been smeared with clay. The Mishnah Berurah explains that the clay removes the <i>chametz</i> from the category of food. The Taz (O.C. 442:8) seems to imply that one even may benefit from this <i>chametz</i>, a position that the <i>Aruch Hashulchan</i> (O.C. 442:30) endorses explicitly. The Sha’ar Hatziyun (442:72), however, writes that the smearing of clay merely excuses one from the requirement to remove this <i>chametz</i> from his home. This Halachah appears to prove the lenient approach, as the Shulchan Aruch permits one to own such <i>chametz</i> even though its status as food can easily be restored by removing the clay. This proof does seem compelling according to the <i>Aruch Hashulchan</i>’s view that it is actually permissible to benefit from this <i>chametz</i> so long as it remains covered with clay. According to the Sha’ar Hatziyun, though, this Halachah does not prove that we disregard future restoration; it merely proves that one may own such <i>chametz</i> while it remains in its current state, not that it may be benefited from.
  Rav Frank cites two reasons to consider alcohol <i>chametz </i>even if it is unfit for canine consumption. First, Rav Yosef Shaul Nathanson (<i>Teshuvot Sho’eil Umeishiv </i>1:1:141) rules that the exemption of <i>eino ra’ui l’achilat kelev</i> applies only to items that are normally consumed. Since these items are consumed only when they are edible, the prohibition to consume them does not apply if they are unfit even for canine consumption. However, if an item is not meant for consumption, the prohibition to own and benefit from it (if it contains <i>chametz</i>) applies even if it is inedible.
  Rav Frank himself judges this line of reasoning to be unpersuasive. In fact, he adds, even Rav Nathanson seems to contradict himself in another responsum (<i>Teshuvot Sho’eil Umeishiv</i> 3:2:148) in which he permits soap for <i>Pesach</i> use because the <i>chametz</i> in the soap is inedible. We may add that Rav Nathanson’s reasoning also appears to conflict with the Shulchan Aruch’s aforementioned permission to use ink that was cooked in barley beer, wherein the Shulchan Aruch applies <i>eino ra’ui l’achilat kelev</i> even though ink is not normally consumed. Accordingly, most <i>poskim</i> reject Rav Nathanson’s stringent view, although some take it into account as a reason to be strict when possible about such issues on <i>Pesach</i> (see, for example, <i>Yesodei Yeshurun</i> 6:227).
  The other reason for stringency that Rav Frank quotes is the opinion of the <i>Teshuvot Levushei Mordechai </i>(O.C. 86), who argues that the category of <i>nifsal mei’achilat kelev </i>is irrelevant to alcohol, since dogs would not consume even the conventional alcohol that humans regularly drink. The <i>Teshuvot Minchat Elazar</i> (ad. loc.) challenges this argument, asserting that even dogs can potentially acquire a taste for alcohol (see Rosh Hashanah 4a)7<i class="footnote">Yehuda Ness notes that this response is questionable based on the aforementioned argument that Halachah is not formulated based on exceptions (<i>batlah da’ato eitzel kol haberiyot</i>). Most dogs certainly do not indulge in alcohol. On the other hand, the Gemara refers to a dog being trained to drink alcohol. It is perfectly normal for dogs to do as they are trained, so perhaps the rule of <i>batlah da’ato eitzel kol haberiyot</i> is inapplicable.</i> just as humans can.
  Ultimately, Rav Frank concludes that one should not use denatured alcohol as cooking fuel (apparently a common practice in the early twentieth century) on <i>Pesach</i>.8<i class="footnote">For further discussion of this debate, see <i>She’arim Mitzuyanim Bahalachah </i>(3:78-79).</i>
  Rav Shimon Eider (<i>Halachos of Pesach</i> p. 25 footnote 90) writes that he heard that Rav Isser Zalman Meltzer, Rav Aharon Kotler, and Rav Yaakov Kaminetzky agree with Rav Moshe’s position on denatured alcohol. Accordingly, Rav Doniel Neustadt (<i>The Monthly Halachah Discussion</i> p. 187) concludes that most <i>poskim</i> rule strictly about this matter. However, as I heard Rav Yosef Rottenberg of Baltimore state, the problem with oral reports such as these (when not supported by a written responsum) is that it is difficult to determine whether these great authorities meant their rulings as <i>ikar hadin</i> (bottom-line Halachah) or merely as <i>chumrah </i>(stringency). In fact, Rav Kaminetzky is cited (<i>Emet L’yaakov Al Shulchan Aruch</i> p. 200 note 432) as being lenient regarding this matter in case of very great need (especially since the alcohol might be synthetic, as we shall explain later).
  We should note that even grain alcohol might not be regarded as <i>chametz</i> on a biblical level. Some <i>poskim</i> (cited in <i>Sha’arei Teshuvah</i> 442:3) argue that alcohol is <i>zei’ah b’alma </i>(“mere sweat,” i.e. of no substance; see Berachot 37a) and is forbidden as <i>chametz</i> only on a rabbinic level. Although the Mishnah Berurah (442:4) rules that the consensus opinion classifies grain alcohol as biblically prohibited, Rav Yehudah Amital told me that the lenient opinions might be utilized as a <i>snif l’hakeil </i>(a lenient consideration) regarding the question of owning products that contain <i>chametz</i>. This is also the opinion of Rav Chaim David Halevi (<i>Techumin</i> 3:69).9<i class="footnote">See <i>Bei’ur Halacha </i>489:10 s.v. <i>Af</i>, who considers the lenient opinions in the context of the laws of <i>chadash</i>. </i>
  We should clarify that the Shulchan Aruch’s permitting the use of ink cooked in beer, even though the beer in the ink can be chemically reconstituted, is not an ironclad proof to the lenient opinion, as the technique of chemical reconstitution was not available during the Shulchan Aruch’s time. Thus, the stringent opinion presumably would argue that this lenient ruling of the Shulchan Aruch no longer applies, because reconstitution is now a practicable possibility.10<i class="footnote">Rav Asher Bush adds that because ink is not poisonous, it is not impossible to imagine someone consuming it, yet the Shulchan Aruch permits benefiting from it. Most cosmetics and toiletries, on the hand, are poisonous when consumed, so it is less likely that a person would consume them. As such, there is even more reason to be lenient about cosmetics and toiletries than about ink, which would suggest that the former should be permissible.</i>
  Cosmetics and Toiletries that Contain Denatured Alcohol
  Later twentieth-century authorities continue to debate the status not only of denatured alcohol, but even of products that contain denatured alcohol. Rav Gedalia Felder, though he acknowledges the possibility of allowing ownership of such products on <i>Pesach</i>, concludes that it is forbidden. He bases his strict ruling on the potential of chemically rendering these products as edible and on the stringent rulings of the <i>Teshuvot Sho’eil Umeishiv</i> and <i>Teshuvot Levushei Mordechai </i>cited above. On the other hand, many observant Jews, following the lead of great <i>poskim</i> such as Rav Ovadia Yosef (<i>Yalkut Yosef</i>, <i>Kitzur Shulchan Aruch</i> p. 585 in the 5760 edition) and Rav Yosef Dov Soloveitchik (cited by Rav Yosef Adler and many others), are lenient in this matter. In fact, the <i>Teshuvot Chazon Nachum</i> (46) writes that although he perceives that the common practice is to be strict in these matters, a Rav who rules leniently should not be criticized.
  Rav Shimon Eider (<i>Halachos of Pesach</i> pp. 25-26) articulates a compromise view that is practiced by many people.11<i class="footnote">The Chicago Rabbinical Council, following the rulings of Rav Gedalia Schwartz, Rav Shmuel Fuerst, and other prominent <i>poskim </i>from Chicago, has adopted this approach as its official policy. </i> He writes, “Many Poskim hold that this problem of alcohol concerns only medications, cosmetics, toiletries and the like which are in liquid form.” Such products include cologne, pre-shave and aftershave lotion, mouthwash, and spray and roll-on deodorants. Rav Eider explains that when the alcohol is not in liquid form, Rav Moshe’s concern for those who drink the alcohol with only slight modifications is not relevant. Moreover, Rav Moshe’s concern does not apply to the alcohol in some liquids, such as nail polish, hand lotion, shoe polish, and paint, and hence Rav Eider permits their use.
  Additionally, the alcohol in the products in question often is synthetic, not grain alcohol. Rav Doniel Neustadt (<i>The Monthly Halachah Discussion </i>pp. 187-188) reports that even manufacturers are often unaware of which type of alcohol their products contain. Since they use whatever ingredients are available for the lowest price at the time of manufacture, they often do not have information about the origin of the alcohol in a product manufactured six months before purchase. Obviously, synthetic alcohol would pose no problem for <i>Pesach </i>use.
  Moreover, if a majority of the alcohol that is used in such products is synthetic, then one might be permitted to rely on the <i>rov </i>(majority; see Shulchan Aruch Y.D. 110:2). Indeed, Rav Ovadia Yosef (<i>Yalkut Yosef</i> ad. loc.) rules leniently about using Israeli products specifically because most of the denatured alcohol contained in Israeli products is synthetic.12<i class="footnote">This obviously is subject to change over time. If it becomes more common in Israel to use grain-based denatured alcohol than synthetic denatured alcohol, Rav Ovadia might forbid using products containing denatured alcohol.</i>
  <i>Sichah K’shtiyah</i>
  In addition to the issues already discussed, the principle of sichah k’shtiyah (anointing is equivalent to drinking; see Yoma 76b) poses a potential problem for applying cosmetics that contain inedible chametz. We noted above that although one may own and benefit from inedible chametz, he still may not eat it. Accordingly, if the principle of sichah k’shtiyah applies to chametz on Pesach, it would be forbidden to apply makeup that contains even inedible chametz, as this would be the equivalent of “drinking” the chametz. Thus, we must explore the parameters of sichah k’shtiyah to assess its relevance to the prohibitions of chametz on Pesach.
  The Gemara (<i>ibid</i>.) presents the principle of <i>sichah k’shtiyah</i> as a reason why it is forbidden to anoint oneself on <i>Yom Kippur</i> (see Yoma 73b). The Gemara also uses this principle to forbid a non-<i>Kohen</i> to anoint himself with olive oil of <i>terumah</i> (the <i>kohen</i>’s tithe, which a non-<i>kohen</i> is strictly forbidden to consume). Thus, it appears that the principle of <i>sichah k’shtiyah</i> extends to all areas of Halachah. However, Rabbeinu Tam (cited in <i>Tosafot Yoma</i> 77a s.v. <i>D’tnan </i>and Niddah 32a s.v. <i>Uchshemen</i>) argues that <i>sichah k’shtiyah</i> applies only to <i>Yom Kippur</i>, <i>terumah</i>, and <i>issurei hana’ah</i> (items that we are forbidden to benefit from, such as <i>chametz</i> on <i>Pesach</i>). Thus, Rabbeinu Tam rules that we are permitted to use soap made from pig fat, since Halachah permits benefiting from pigs.13<i class="footnote">Rav Dovid Heber reports that soap continues to be made from pig fat even today.</i>
  Many <i>Rishonim</i>, including the <i>Mordechai</i> (Shabbat 338-339), the <i>Sefer Haterumah</i> (238), and <i>Tosafot Rabbeinu Peretz </i>(Pesachim 24b s.v. <i>Hiniach</i>) challenge Rabbeinu Tam’s ruling and state that the principle of <i>sichah k’shtiyah</i> applies to all prohibitions. They rule, therefore, that it is forbidden to use soap derived from animals that would be forbidden to eat (such as non-kosher or improperly slaughtered animals).
  The commentaries to the Shulchan Aruch continue to debate this issue. The Vilna Gaon (Bei’ur Hagra O.C. 326:10 s.v. <i>Oh Bish’ar Cheilev</i>) notes that the Rama (<i>ibid</i>.) rules that on Shabbat and <i>Yom Tov</i>, it is forbidden to use soaps made from animal fat (such as those commonly used in Europe at that time). This implies that it is permitted to use such soap on other days (even if made from animals which would be forbidden to eat), as Rabbeinu Tam ruled. The Vilna Gaon himself, though, rules in accordance with the <i>Rishonim</i> who reject Rabbeinu Tam’s ruling and forbids soaps made from prohibited animals except in a situation of distress (<i>mekom tza’ar</i>).
  The Shach (<i>Nekudat Hakesef</i>, Y.D. 117:4) observes that the common custom is to be lenient in this matter, but that some follow the strict opinion, which he believes is the “proper” practice. The Bei’ur Halachah (326:10 s.v. <i>Bish’ar Cheilev</i>) also writes that the <i>minhag ha’olam</i> (common custom) is to be lenient, though he, too, notes that “A number of people who are scrupulous about Halachah are strict about this matter.” He concludes that if soap made from a kosher source is readily available, it is “certainly proper” (though not required) to accommodate the stringent opinion.
  <i>Sichah K’shtiyah</i> for Inedible Products<i></i>
  Both the <i>Aruch Hashulchan</i> (Y.D. 117:29) and the <i>Kaf Hachaim</i> (O.C. 326:45) specify that this dispute applies only to soap that is edible; all would agree, however, that it is permitted to use inedible soap. The <i>Aruch Hashulchan</i> records that this is the commonly accepted and unchallenged practice among Jews throughout the world. Nevertheless, Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at </i>4:43), despite agreeing with this lenient position, observes that the Bei’ur Halachah does not distinguish between edible and inedible soap, which implies that it is preferable to avoid using even inedible soap that is derived from a non-kosher source.
  The debate regarding <i>sichah k’shtiyah</i> and soap is relevant to cosmetics as well, since they, too, are applied to the skin. Rav Dovid Heber14<i class="footnote">Rav Heber’s essay on this topic is available at www.star-k.org.</i> relates that the <i>minhag ha’olam</i> today is to apply cosmetics that contain non-kosher ingredients to one’s face throughout the year. He adds, however, that although cosmetics that are unfit for canine consumption are, strictly speaking, permitted on <i>Pesach</i>, “Nonetheless, many individuals are strict and avoid using creams, lotions, and liquids that contain <i>chometz</i>.”15<i class="footnote">Examples of <i>chametz</i> ingredients in cosmetics include wheat protein, wheat germ, avena, beta glucan, oat extracts, and triticum vulgare. </i> In any case, Rav Shimon Eider (<i>Halachos of Pesach</i> p. 27) comments, that it seems that all would agree that it is proper to use a fresh stick of lipstick for <i>Pesach</i>, as this is common practice regarding items that one puts in his mouth and that come in contact with <i>chametz</i>, such as toothbrushes.16<i class="footnote">Although one could simply clean the lipstick or toothbrush, there is concern that one cannot thoroughly clean these items, similar to those described by the Shulchan Aruch (O.C. 442:11) and Rama (<i>ibid</i>.).</i>
  Toothpaste on <i>Pesach</i>
  The toothpaste that we use today is inedible (despite the fact that many have a pleasant taste), but it commonly contains glycerin (which is often manufactured from forbidden animals) and might have <i>chametz</i> ingredients. Thus, there are two potential problems with toothpaste on <i>Pesach</i>: it may have non-kosher ingredients and it may contain <i>chametz</i>. The common practice in the observant community is to be lenient and to use regular toothpaste year-round despite the potential non-kosher ingredients, though some are strict and use only toothpaste with entirely <i>kosher</i> ingredients. What, then, is the halachic status of toothpaste on <i>Pesach</i>?
  Rav Shimon Eider (ad. loc.) cites that Rav Moshe Feinstein ruled that toothpaste is <i>eino ra’ui l’achilat kelev</i> and hence is permissible for use on <i>Pesach</i>. Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik endorsed this position. Rav Moshe adds that we are not concerned about swallowing some of the toothpaste, since <i>achsheveih </i>does not apply to unintended swallowing (as we cited previously from the Mishnah Berurah 442:45). However, he states that since toothpaste that does not contain <i>chametz</i> is readily available, one should not use toothpaste that might contain <i>chametz</i>. Rav Eider reports, based on verbal accounts, that Rav Aharon Kotler agreed with Rav Moshe’s position.
  Rav Moshe’s recommendation appears to be based on a ruling of the Rama (Y.D. 155:3) that we do not permit an ill person to consume a forbidden item, even if it is necessary to preserve his life, if a permitted item that is equally effective in fighting the illness is available.17<i class="footnote">The context of the Rama’s ruling might indicate that the Rama speaks even about a forbidden item that has been rendered inedible. If so, Rav Moshe’s recommendation becomes even more powerful, since the Rama requires using a permissible item even if, as in the modern-day case of toothpaste, the item is inedible. Rav Moshe appears to adopt this approach in his ruling regarding dish soap that is cited later in this chapter. Rav Hershel Schachter told me that Rav Moshe’s preference to avoid using non-kosher items even if they are inedible is due to concern for “<i>timtum halev</i>” (spiritual contamination) resulting from the consumption of non-kosher food, even if it is consumed in a permissible manner. The Rama (Y.D. 81:7) expresses similar sentiments in regard to attempting as much as possible to have a child nurse from someone who consumes only kosher food.</i> The Rama adds that one must wait for the permitted item even if there will be a slight delay in obtaining it, assuming that the delay will not endanger the patient.
  What is not clear from Rav Eider’s reports of oral rulings from these eminent authorities is whether they considered this ruling to constitute the <i>ikar hadin </i>or a <i>chumra</i>. As we quoted earlier from Rav Yosef Rottenberg, rulings that are not supported by written responsa are difficult to fully scrutinize and understand.
  Rav Hershel Schachter told me that even if toothpaste has a pleasant taste, it is nonetheless considered <i>eino ra’ui l’achilat kelev</i> and is permissible to use, since it is still inedible. Rav Schachter understands the Rama’s (Y.D. 108:5) prohibition against tasting a forbidden item to apply only if the item is suitable to be eaten. 18<i class="footnote">Pitchei Teshuvah</i> (Y.D. 98:1), the <i>Mateh Yehonatan</i> (Y.D. 108:5), and the <i>Teshuvot Har Zvi </i>(Y.D. 95) support Rav Schachter’s ruling. 
  On the other hand, Rav Eider (ad. loc.) infers from this Rama that “Flavored lipsticks may not be used on <i>Pesach</i>.” Apparently, Rav Eider believes that one may not taste even an inedible item.19<i class="footnote">Rav Asher Bush argues that this reading of the Rama appears to contradict the aforementioned ruling of the Shulchan Aruch (O.C. 442:10, as interpreted by the <i>Mishnah Beruruah</i> 442:45, citing the Magen Avraham 442:15 in the name of the <i>Terumat Hadeshen </i>129) that it is permitted, from the vantage point of <i>chametz</i>, to write with ink that was cooked in barely beer even though the scribe might absentmindedly put the quill into his mouth and swallow some of the ink.</i>
  Mouthwash
  This debate impacts the question of using mouthwash that contains inedible <i>chametz</i> (many contain denatured alcohol) for <i>Pesach</i>. Whereas Rav Schachter permits using any kind of mouthwash, others forbid using one that has a “minty” or other pleasant taste (as opposed to a medicine-like taste). Indeed, Rav Meir Bransdorfer (<i>Teshuvot Knei Bosem</i> 1:25) writes that mouthwash containing inedible <i>chametz</i> is permitted on <i>Pesach</i> only if one does not intend to eat or enjoy the taste of it.20<i class="footnote">Rav Asher Bush suggests that this may vary from person to person.</i> This seems to imply that he would forbid using mouthwash unless it has a “medicine-like taste.” Rav Eider (ad. loc.), on the other hand, forbids any mouthwash that contains <i>chametz</i> ingredients.21<i class="footnote">Rav Heber writes that breath sprays and breath strip fresheners that are intentionally swallowed require kashrut certification for <i>Pesach </i>and year-round use. Rav Hershel Schachter, on the other hand, told me that these items do not require kashrut certification for <i>Pesach</i> or year round use, since they are inedible and one does not intend to consume them for the purpose of eating.</i>
  Dish Soap
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:30) discusses whether one is permitted to use dishwashing liquid that comes from a source that is not kosher. Rav Moshe rules that it is considered <i>nifsal mei’achilat kelev</i>, citing as a precedent the Shulchan Aruch’s (O.C. 442:10) permission to write on <i>chol hamo’eid Pesach</i> with ink that was cooked in barley beer. Interestingly, Rav Moshe embraces both a leniency and a stringency in this <i>teshuvah</i>. On the one hand, he rules, contrary to the position of some earlier <i>Acharonim </i>(see <i>Yad Efraim</i> to Y.D. 99:5), that one is permitted to manufacture such a liquid and that doing so does not violate the prohibition of <i>ein mevatlin issur l’chatchilah</i> (intentionally nullifying forbidden food) even though it transforms a forbidden item into a permissible one. On the other hand, Rav Moshe does not state that such dishwashing liquid is permitted; rather, he writes, “We cannot forbid it,” implying that it is best not to use such a detergent if an alternative is available. The reason for this might be the aforementioned ruling of the Rama (Y.D. 155:3) that it is forbidden to consume non-kosher items even to fight an illness when kosher ones are available.
  Rav Shimon Eider (ad. loc.), in contrast, writes that one should use only dishwashing liquid that is approved for <i>Pesach</i> use. Rav Eider writes that this is consistent with the common practice to use only dishwashing liquid that has no non-kosher ingredients even though it is <i>nifsal mei’achilat kelev</i>. Rav Eider suggests that we are concerned that such liquid may not be entirely <i>nifsal mei’achilat kelev</i>, in which case our dishes are absorbing non-kosher ingredients from the dishwashing liquid when washed with it in hot water.
  Conclusion
  It is our hope that this chapter has shed some light on this controversial topic. We have seen that there is a basis for both the strict and lenient approaches, and thus it is not appropriate to criticize one who adopts either approach to this issue.
  
  Family Matters
  
  Frivolous Wedding Ceremonies
  
  Occasionally, one hears about a story of a young man “marrying” a young woman in a frivolous wedding ceremony. Though these ceremonies may seem trivial, they can have horrific consequences, as Halachah might not regard them as invalid. Some cases might even necessitate a <i>get</i>, albeit sometimes merely as a precautionary measure.1<i class="footnote">The literature from <i>poskim</i> who have dealt with such regrettable situations in the past is summarized in the Pitchei Teshuvah (E.H. 42:5-6) and <i>Otzar Haposkim</i> (volume 13 pp. 11-26).</i> Tragically, this probably would preclude the woman from marrying a <i>kohen</i> (see Rama E.H. 6:1).2<i class="footnote">The Rama writes that a divorced woman is forbidden to a <i>kohen</i> even if she received a <i>get</i> merely as a precautionary measure. For further discussion of this Rama and its application, see <i>Teshuvot Yabia Omer</i> (6 E.H. 1), Rav Melech Schachter’s essay in <i>Beit Yitzchak</i> (22:157-161), <i>Teshuvot Atzei Besamim</i> (11), and Rav Yirmiyahu Benyowitz’s <i>Kovetz Al Yad</i> (1:148).</i>
  In this chapter, we shall a present a case that was adjudicated by Rav Mendel Senderovic that appears in his collection of responsa (<i>Teshuvot Atzei Besamim</i> 22). A full presentation of this case and Rav Senderovic’s decision will elucidate many fundamental issues concerning both <i>kiddushin</i> in general and frivolous <i>kiddushin</i> in particular.
  Needless to say, it is vital that youngsters never engage in such reckless behavior, the consequences of which can last a lifetime. If any situation does arise, the case must be presented to a Rav of eminent stature for a ruling.
  The Case
  Rav Senderovic’s case involved a group of three boys, all nearly fourteen years old, and two girls nearly thirteen years old. Two of the boys left the group, leaving the others standing together. One of the two girls said to the remaining boy that if he loved the second girl, he should marry her, and she handed him a bottle cap to use for the “ceremony.” The boy, following this suggestion, took the bottle cap and handed it to the second girl, who kept it without casting it away. Meanwhile, one of the other boys returned and saw the bottle cap in the second girl’s hand, but he was later unsure (at the time of testimony) whether he had heard the first girl suggest the “marriage” and whether he had witnessed the delivery of the bottle cap.
  Lack of Intent
  It is tempting to invalidate this ceremony due to the lack of <i>da’at </i>(intent) to marry. <i>Da’at</i> is a basic element of creating valid <i>kiddushin</i>, as is evident in many passages in <i>Masechet Kiddushin</i> (see, for example, Kiddushin 2b, 7b, and 10a).3<i class="footnote">Also see <i>Chidushei Rabbeinu Chaim Halevi Soloveitchik</i> to the Rambam (<i>Hilchot Yibum V’chalitzah</i> 4:16) for a full conceptual analysis of the requirement of <i>da’at</i> for <i>kiddushin</i>.</i> Since this couple presumably lacked <i>da’at</i> to marry, the ceremony should be invalid and no <i>get</i> should be required.
  However, Halachah does not make this assumption easily, as demonstrated by a ruling of the Maharam of Rothenberg (<i>Teshuvot Maharam Mi’ruttenberg</i> 993). In the case brought before him, a woman at first instructed a man to marry her, but when the man threw an item into her lap, she immediately tossed it away. Even though the woman explained that her words were intended as a mere joke, an intention that her actions seemed to confirm, the Maharam ruled that she was married and would require a <i>get</i> to marry another man. The Rama (E.H.HH 42:1) rules in accordance with the Maharam, and none of the commentaries to the Shulchan Aruch challenge this ruling.
  <i>Devarim Sheb’leiv </i>and<i> Umdana D’muchach</i>
  A bit of discussion is necessary to explain this ruling. The Gemara (Kiddushin 49b) presents a fundamental rule that applies to many areas of Halachah: “<i>Devarim sheb’leiv einam devarim</i>” (thoughts that are not articulated are immaterial). <i>Tosafot </i>(ad. loc. s.v. Devarim) add, though, that if his intent is so obvious that it is assumed even when not stated explicitly (<i>umdana d’muchach</i>), the stipulation need not be articulated to be meaningful.
  As an example, <i>Tosafot</i> cite a case (from Bava Batra 132a) in which someone presumed that he had no children and therefore gave his entire estate to someone outside of his family but subsequently discovered that his child was alive. Even though the donor did not explicitly stipulate that his gift was to be valid only on condition that his child was actually dead, the gift is nullified when he discovers that his child is living, because it is glaringly obvious to us – there is an <i>umdana d’muchach</i> – that had he known that the child was living, he would never have gifted his entire estate to a non-family member.
  In the case of the Maharam, the woman in question is considered to be married due to the rule of <i>devarim sheb’leiv einam devarim</i>. The woman did not, before she received the ring, issue a disclaimer (<i>mesirat moda’ah</i>) clarifying that she was merely joking and did not intend to be married. Based on two passages in the Gemara (Yevamot 118b and <i>Bava Kama</i> 111a), the Maharam explains that since some women are satisfied with marginal husbands,4<i class="footnote">For further explanation and discussion of this assertion, see my <i>Gray Matter 1</i> p. 43.</i> there is no <i>umdana d’muchach</i> that she was joking.
  <i>Umdana D’muchah </i>for Marriage<i></i>
  In what appears to be a sweeping statement, the Rama adds to his confirmation of the Maharam that we do not consider <i>umdenot</i> (presumptions) and other evidence that would indicate that the couple did not intend to be married. The scope of this exclusion is somewhat unclear. The <i>Aruch Hashulchan</i> (E.H. 42:7-8) construes the Rama very broadly, interpreting that he completely negates the rules of <i>umdana d’muchach</i> in the context of marriage and divorce. He notes that the Rama does not say that a couple with an <i>umdana</i> that they were not serious is considered only possibly married (<i>safeik kiddushin</i>); they are considered married in all respects. He concludes that the Maharam and Rama are presenting an all-embracing rule: with regard to <i>gittin</i> and <i>kiddushin</i>, we always apply the principle of <i>devarim sheb’leiv einam devarim</i>.5<i class="footnote">We should note, however, that while the <i>Aruch Hashulchan</i> rules elsewhere based on this understanding (E.H. 145:30), he also seems to contradict it in a different place (E.H. 141:63-64).</i>
  The <i>Chazon Ish</i> (E.H. 52:3) adopts a very different approach. He argues that the Gemara never outright excludes <i>gittin</i> and <i>kiddushin</i> from the rules of <i>umdana d’muchach</i>, and we have no evidence that the Maharam and his <i>beit din</i> issued a new edict eliminating the <i>umdana d’muchach</i> exception for <i>kiddushin.</i> Rather, in the specific case addressed by the Maharam and the Rama, there simply was no <i>umdana d’muchach</i> that the couple did not intend to be married. Had there been an authentic <i>umdana</i>, however, the marriage would not have been valid.
  An example of a case with such an <i>umdana</i> is addressed in a <i>teshuvah</i> by Rav Shmuel David (printed in <i>Techumin </i>18:92-99). In Rav David’s situation, a non-observant Israeli couple was scheduled to be married, with a Rav from the Israeli rabbinate officiating at the wedding. The husband found himself unable to attend the wedding, so he asked a friend to substitute for him at the ceremony – not to act as an agent, but to present himself fraudulently to the Rav as the actual husband. The “real” husband subsequently lived with his “wife” and had children with her. One of the children later became observant and wanted to know if she was considered a <i>mamzeret</i> (illegitimate child), since her mother seemed to be married to the substitute husband, not her father.
  Rav David cites Rav Eliyahu Bakshi-Doron, Rav Mordechai Eliyahu, and Rav Aharon Lichtenstein as ruling that the daughter was not a <i>mamzeret</i> since the “marriage” between her mother and the substitute husband was invalid. One of the considerations behind this assessment of the marriage was the <i>umdana d’muchach</i> that her mother and the substitute husband did not intend to be married to each other.6<i class="footnote">We should note, however, that there is more room for leniency in the case of <i>mamzeirut</i>, whose violation is a regular negative prohibition, than in the case of declaring that a <i>get</i> is unnecessary, which could result in violation of the capital crime of adultery and the death penalty associated with it. Moreover, the Torah-level prohibition of <i>mamzeirut</i> does not apply to one who is only a possible <i>mamzeir</i> (Kiddushin 73a).</i>
  In our case, however, Rav Senderovic did not feel that this was sufficient reason to rule leniently. Firstly, the dispute between the <i>Aruch Hashulchan</i> and the <i>Chazon Ish</i> seems to be unresolved, as the <i>Otzar Haposkim</i> (volume 13 pp. 11-26 in the 5740 edition) presents <i>poskim</i> who agree with each. Second, in the case that Rav Senderovic adjudicated, as in the case of the Maharam, there was no <i>umdana d’muchach</i> that the couple had no <i>da’at </i>to marry.7<i class="footnote">Rav Senderovic does not accept the argument of Rav Shmuel David (<i>Techumin</i> 23:149-157) that there is an <i>umdana d’muchach</i> that early teens in contemporary times have no intention to marry, since no one in this milieu gets married at this age. Rav Hershel Schachter (personal communication) and Rav Mordechai Willig (personal communication) also do not accept Rav David’s argument. </i> As opposed to Rav David’s case, wherein the woman was ready to marry another man and obviously did not intend to marry the substitute, those in Rav Senderovic’s case may very well have intended to marry.
  Rav Moshe Feinstein’s Compromise
  We should note that while Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 1:84) seems, for the most part, to adopt the <i>Aruch Hashulchan</i>’s broader reading, he nevertheless presents two limitations on the strict ruling of the Maharam and Rama. First, it appears (based on the Bei’ur Hagra, E.H. 42:4) that the Rama’s disqualification of <i>umdenot</i> regarding <i>kiddushin</i> is a stringency that is imposed only under rabbinic law (but not on a biblical level). Thus, he reasons that there is no reason to be strict in case where there was only one witness, in which the concern that the <i>kiddushin</i> is valid is itself a mere stringency.8<i class="footnote">This point will be discussed at greater length below.</i> According to Rav Moshe, no <i>get</i> is required in such a case.
  In addition, Rav Moshe (ad. loc. 1:82) advocates a suggestion of the <i>Aruch Hashulchan</i> (E.H. 42:12) that if the witnesses are fully aware that there is an <i>umdana d’muchach</i> regarding the couple’s lack of intent, the <i>kiddushin</i> is not valid. This is not due to lack of intent to be married (about which the Maharam and Rama rule that one cannot be lenient), but rather due to the lack of proper witnesses to the ceremony. Rav Moshe explains that one cannot be considered a witness to a <i>kiddushin</i> if he harbors serious doubts as to the efficacy of the ceremony. In other words, the Maharam and Rama are strict only if the witnesses do not realize that the ceremony was a joke. The <i>Otzar Haposkim</i> (ad. loc. pages 19-21) cites several prominent <i>poskim</i> (such as <i>Teshuvot Atzei Halevanon</i> 90 and <i>Teshuvot Zekan Aharon</i> 84) who agree with this assertion, but records that others (such as Rav Kook, <i>Teshuvot Ezrat Kohen</i> 48) disagree.
  However, these two leniencies are not relevant to Rav Senderovic’s case, in which, as mentioned above, there was no <i>umdana d’muchach</i> that the couple did not intend to be married.
  The Bottle Cap’s Lack of Value
  At first glance, it seems that we should be able to invalidate the ceremony for a different reason: the bottle cap’s lack of monetary worth. A fundamental law of kiddushin is that the item used must be worth a <i>perutah</i>9<i class="footnote">Rav Yaakov Luban (in an essay available at www.ou.org) writes, based on the <i>Chazon Ish</i> (C.M. 16-30), that the value of a <i>perutah</i> is 1/1244 of a troy ounce (1/40 of a gram) of pure silver. Rav Hershel Schachter (personal communication; see <i>B’ikvei Hatzon</i> pp. 268-269) and Rav Mordechai Willig (personal communication) agree with this calculation of the value of a <i>perutah</i>. In 1993, a troy ounce of silver was worth approximately $3.75, making a <i>perutah</i> worth 3/10 of a cent. Accordingly, when the value of silver is depressed, it is possible that a bottle cap indeed is worth a <i>perutah</i> (if not in the United States, then perhaps in an undeveloped country, which, as we will see, may be significant). Rav Moshe Heinemann (in an essay available at www.star-k.org), however, cites Rav Moshe Feinstein, who rules that in order to qualify as a <i>shaveh perutah</i>, a coin must have some purchasing power. Rav Heinemann writes that according to this approach, a <i>shaveh perutah</i> is at least a nickel. </i> (Kiddushin 2a). This is so essential that <i>mesadrei kiddushin</i> (rabbinic wedding officiants) commonly clarify under the <i>chuppah</i> that the ring has a value of at least a <i>perutah</i> (Rama E.H. 31:2).
  Nevertheless, the Gemara (Kiddushin 12a) presents the opinion of Shmuel that if one uses an item that was worth less than a <i>perutah</i> in his own locale, we must still be concerned that the item might be worth a <i>perutah</i> somewhere else. Although Rav Chisda disagrees with Shmuel’s opinion, the Shulchan Aruch (E.H. 31:2) rules in accordance with Shmuel, as do almost all <i>Rishonim</i>. Thus, a couple that used an item that was worth less than a <i>perutah</i> is considered only possibly married and would require another <i>kiddushin</i> if they wish to be married to each other (<i>Shulchan Aruch ibid</i>. 4) or a <i>get </i>if they wish to marry others. The Beit Shmuel (31:11) and <i>Aruch Hashulchan</i> (E.H. 31:18) argue that the mainstream opinion among the <i>Rishonim</i> is that the requirement of the <i>get </i>is only rabbinic, as there is no biblical-level concern for the item being worth a <i>perutah</i> elsewhere.
  In our case, although a bottle cap is not worth a <i>perutah</i> in the United States, it might be worth a <i>perutah</i> in an undeveloped country. Accordingly, we cannot assume that the <i>kiddushin</i> is invalid based on the fact that the cap was worth less than a <i>perutah</i>. However, Rav Senderovic cites the <i>Aruch Hashulchan</i>’s (E.H. 31:18) suggestion that if the item would seemingly be worthless anywhere in the world, the marriage should be invalid. Rav Senderovic argues that a bottle cap appears to fit this qualification, making the ceremony in our case void. Although the <i>Aruch Hashulchan</i> himself expresses hesitancy about this distinction, Rav Senderovic uses the <i>Aruch Hashulchan</i>’s suggestion as a consideration for a lenient ruling.10<i class="footnote"><i>Poskim</i> who adjudicate these regrettable cases generally strive to amass many considerations for a lenient ruling (see, for example, <i>Teshuvot Noda Biy’hudah </i>2 E.H. 75, cited in Pitchei Teshuvah E.H. 42:6 and <i>Teshuvot Igrot Moshe</i> E.H. 1:82).</i>
  Omission of “<i>Harei At Mekudeshet Li</i>”
  In our case, the boy was silent. The only one to speak was the girl who said, “If you love her, marry her.” The boy thus did not fulfill the usual practice of the <i>chatan </i>to say “<i>Harei at mekudeshet li b’taba’at zo k’dat Moshe v’yisrael</i>” (behold you are betrothed to me with this ring in accordance with the laws of Moses and Israel) before presenting the ring to the <i>kallah </i>(Shulchan Aruch E.H. 27). However, the Rama (E.H. 27:1) notes that the <i>kiddushin</i> is valid even if the <i>chatan</i> does not address the <i>kallah</i> as long as marriage is discussed in her presence (<i>asukim b’oto inyan</i>; see Kiddushin 6a).
  Even this limited requirement, though, may demand more than was present in our case. Indeed, the Taz (E.H. 27:2) writes that the one to speak must be the <i>chatan</i>, whereas in our case, the boy said nothing. The <i>Otzar Haposkim</i> (27:15:2), however, cites authorities who rule that the marriage is valid even if the <i>chatan</i> is not the speaker. We also cannot invalidate the marriage on the grounds that the sole witness was unsure whether he heard the girl’s words, as the <i>Aruch Hashulchan</i> (E.H. 27:17) raises the possibility that the witnesses might not be required to hear the statement made in the presence of the <i>kallah</i>. It is possible, he asserts, that it is sufficient for the witness simply to see the delivery of the item from the <i>chatan</i> to the <i>kallah</i>.11<i class="footnote">These disputes hinge to a great extent on the role of the marriage statement. If the statement (<i>amirah</i>) is an essential component of the wedding ceremony, as Rashi (Kiddushin 5b s.v. <i>Hachi Ka’amar</i>) seems to indicate, the <i>chatan</i> is required to make the statement himself and the witnesses must hear it. If, however, the statement merely serves to clarify that the delivery of the item from boy to girl is for the purpose of marriage, as the Ran (1b in the pages of the Rif s.v. <i>Tannu Rabbanan</i>) seems to indicate, it might not be necessary for the <i>chatan</i> to make the statement or for the witnesses to hear it.</i> Still, even though the boy’s omission of the statement is insufficient basis to invalidate the ceremony, it does provide another consideration to support a lenient ruling.
  Ownership of the Ring
  Another potential reason for leniency is the basic requirement of weddings that the ring must belong to the <i>chatan</i> (Shulchan Aruch E.H. 28). In fact, <i>mesadrei kiddushin</i> verify with the <i>chatan</i> that he owns the ring and did not simply borrow it. If the <i>chatan</i> forgot to bring the wedding ring, the <i>mesader kiddushin</i> will ensure that the “lender” of a replacement ring transfers title of the ring to the <i>chatan</i> with proper <i>kinyanim</i> (halachic mechanisms of conveyance). Accordingly, the ceremony in our case would appear to be invalid, since the bottle cap did not belong to the boy.
  On the other hand, the Rosh (Kiddushin 1:20) asserts that if a “lender” knows that the “borrower” of a ring intends to use it for <i>kiddushin</i>, it is certain (<i>anan sahadei</i>) that he presents the ring as a gift and not a loan, since he knows that <i>kiddushin</i> can be accomplished only with a ring that belongs to the <i>chatan</i>. This ruling is codified by the Shulchan Aruch (E.H. 28:19) and is applied by the Mishnah Berurah (649:15) in the context of borrowing a <i>lulav</i> on the first day of <i>Sukkot</i>.12<i class="footnote">On the first day, the <i>lulav</i> must belong to the person who is attempting to fulfill the <i>mitzvah</i> with it. For a discussion of whether this issue applies on the second day outside of Israel, as well, see Shulchan Aruch (O.C. 649:5) and Bei’ur Halachah (<i>ibid</i>. s.v. <i>Pesulei</i>).</i> Accordingly, the bottle cap may have belonged to the boy, since we assume that the girl transferred title of the bottle cap to him for the purpose of <i>kiddushin</i>.
  On the other hand, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 1:90, addressing a case of a frivolous marriage ceremony) argues that the Rosh’s <i>anan sahadei</i> did not apply in his case, as most people in his locale were not aware of the requirement for the <i>chatan</i> to own the ring. 13<i class="footnote">Rav Moshe wrote this in the United States in 1949.</i> Moreover, in the context of a joke <i>kiddushin</i>, there is no <i>anan sahadei</i> that the “lender” wished to transfer title to the ring in order to ensure the validity of the <i>kiddushin</i>. In such a situation, it is reasonable to assume that the lender specifically wished to ensure that the <i>kiddushin</i> would be invalid. This is true even if we are unsure whether the lender understood that the couple was not serious, asserts Rav Moshe, as the concept of <i>anan sahadei</i> can apply only where there is relative certainty.14<i class="footnote">He makes a similar assertion in <i>Teshuvot Igrot Moshe</i> E.H. 1:76-77. For further discussion and a list of <i>poskim</i> who agree and disagree with this assertion, see <i>Gray Matter 1</i> p. 72.</i> In this case, there is a strong doubt as to whether the “lender” wished to transfer title of the ring to the <i>chatan</i>. Moreover, perhaps the fact that another male was not summoned to serve as the second witness to the betrothal demonstrates that the couple and the other girl were not seeking to create a valid <i>kiddushin</i>. Thus, it seems that one may assume that the girl did not transfer title of the bottle cap to the boy.
  Rav Senderovic, however, cogently argues that although Rav Moshe’s responsum addresses the Rosh’s <i>anan sahadei</i>, it does not solve a different problem that distinguishes our case. Rav Moshe speaks of transferring ownership of a ring that one wishes to have returned to him. In such a case, it is reasonable to assume that one who is not learned would not be transferring title, since he knows of no such requirement. In our case, however, the girl gave the boy an item (the bottle cap) worth so little that she had no interest in having it returned to her. Thus, there is no reason not to assume that the girl transferred title of the bottle cap to the boy, even if she was unaware of the requirement for the ring to belong to the <i>chatan</i>.
  Rav Senderovic cites <i>Tosafot</i> (Gittin 20b s.v. <i>Ishah</i>), in their comments to the Gemara’s discussion of the requirement that the husband own the <i>get</i> he gives his wife, as a precedent for such a distinction. The Gemara explores whether one may assume that the wife transferred title of her writing tablet (on which the <i>get</i> was written) to the husband. The Gemara suggests that one might assume that the woman was not aware of the need to transfer title of the tablet to the husband, since she presumably was unaware of the requirement that the <i>get</i> belong to the husband, and therefore did not transfer the tablet. <i>Tosafot</i>, in turn, explain that this concern applies only to items that one normally lends; a woman certainly intends to transfer title of a gift that she does not expect to be returned to her. By the same logic, the girl in our case certainly meant to transfer the bottle cap to the boy.
  One Witness at a Wedding
  One might wonder why this incident constituted any problem whatsoever given that there was only one witness at the ceremony. Any wedding must be observed by two witnesses, in accordance with the principle <i>ein davar sheb’ervah pachot mi’shnayim</i> (at least two witnesses are necessary to alter one’s personal status), which appears many times in the Gemara (such as Gittin 2b). Accordingly, it is surprising to discover that the Gemara (Kiddushin 65a-b) discusses the possibility of a marriage being valid even if there is only one witness present.
  The Gemara first cites Shmuel, who insists (as we would expect) that if there is only one witness at the <i>kiddushin</i>, the marriage is invalid, but the Gemara proceeds to cite Rav Yehudah, who is unsure about this point. After the Gemara discusses the matter further, suggesting and rejecting three proofs that we must be concerned for one witness, it queries, “<i>Mai havei alah</i>,” “What is the final resolution of this matter?” The response is that the matter is not resolved, since Rav Kahana rules in accordance with Shmuel, while Rav Papa rules in accordance with Rav Yehudah.
  The simplest explanation for the concern for validity in such a case is that this is a stringency imposed by rabbinic law; biblical law clearly requires a minimum of two witnesses for the <i>kiddushin</i> to be valid. Indeed, the <i>Otzar Haposkim</i> (42:21:2) presents a long list of <i>Acharonim </i>who rule that even Rav Papa believes that this is only a rabbinic stringency. Some <i>poskim</i>, though, believe this to be a biblical-level concern.15<i class="footnote">For further explanation for Rav Papa’s opinion, see <i>Aruch Hashulchan</i> (E.H. 42:20) and <i>Otzar Haposkim</i> (42:21:1).</i>
  The <i>Rishonim</i> are divided as to how to resolve the Gemara’s dispute. The <i>Tur</i> (E.H. 42) states, as the primary opinion, that the betrothal ceremony is invalid, but he cites the <i>Semag</i>’s (<i>Aseih</i> 48) ruling that since the Gemara did not resolve the issue, we must rule strictly. The <i>Beit Yosef</i> (ad. loc. s.v. <i>Hamekadeish</i>) cites the Rambam (<i>Hilchot Ishut</i> 4:6), the Rif (Kiddushin 28a), and the Rosh (Kiddushin 3:13), who also rule that the <i>kiddushin</i> is invalid, and the <i>Otzar Haposkim</i> (42:2:18) likewise cites a very long list of <i>Rishonim</i> who agree with this view. Indeed, the <i>Noda Biy’huda</i> (2 E.H. 75, cited in the Pitchei Teshuvah E.H. 42:6) observes that the overwhelming consensus is that such a ceremony is invalid. However, the <i>Beit Yosef</i> also cites the aforementioned <i>Semag</i>, who cites the <i>Sefer Yerei’im</i> (167) as a precedent for his ruling.
  This matter is not fully resolved in the Shulchan Aruch either. While the Shulchan Aruch (E.H. 42:2) and the Vilna Gaon (Bei’ur Hagra E.H. 42:9) rule that the <i>kiddushin</i> is invalid, the Rama (E.H. 42:2) notes that some are strict about this matter. The Rama concludes that it is proper to be strict (i.e. require a <i>get</i>) except in extraordinary circumstances, which is the ruling accepted by Ashkenazic Jews as authoritative (<i>Aruch Hashulchan</i> E.H. 42:20). Thus, if the husband is cooperative,16<i class="footnote">If the husband does not cooperate, there is more room for leniency. For instance, in a case I dealt with involving a recalcitrant husband who refused to give a <i>get</i> but whose wedding attendees included only one observant Jew (the marriage was performed by a Conservative rabbi), Rav Gedalia Schwartz ruled that the wife could remarry without a <i>get</i>.</i> as in our case, a <i>get</i> is required in order to satisfy the strict opinions despite the absence of a second witness.
  However, Rav Akiva Eiger (<i>Teshuvot Rav Akiva Eiger</i> 2:55) rules that a <i>get</i> would not be required if there is an additional substantive doubt as to the validity of the <i>kiddushin</i>. The <i>Otzar Haposkim</i> (42:21:4) cites an extensive list of <i>Acharonim</i> who agree. This leniency is based in part on a <i>s’feik s’feika</i> (double doubt): perhaps a betrothal ceremony conducted in the presence of only one witness is invalid, and even if it is valid, the additional case-specific doubt indicates that this <i>kiddushin</i> might be invalid anyway. The additional doubt also allows for the lenient argument that since, according to most <i>Acharonim</i>, even those who rule strictly regarding one witness do so only on a rabbinic level, a <i>safeik</i> brings the case into the general category of <i>safeik d’rabbanan l’kula</i> (one may rule leniently about a doubt regarding a matter of rabbinic law).
  On this basis, Rav Senderovic rules that the boy and girl in our case do not require a <i>get</i>. He notes that there are no fewer than three doubts even beyond the issue of a lone witness’s validity: whether the bottle cap was worth a <i>perutah</i>, whether the omission of a statement from the boy invalidates the <i>kiddushin</i>, and whether the witness ever saw the delivery of the bottle cap. Accordingly, Rav Senderovic rules that the boy and girl do not require a <i>get</i>.
  Minor Status of the Boy, Girl, and Witness
  Rav Senderovic proposes another lenient consideration to bolster his ruling. He notes the basic Halachah that the <i>chatan</i>, <i>kallah</i>, and witnesses must be adults in order for the <i>kiddushin</i> to be valid (Shulchan Aruch E.H. 43:1). Although this may seem irrelevant to our case, since the boy and witness were both nearly fourteen and the girl was nearly thirteen, one is actually not considered an adult according to Halachah merely at age twelve or thirteen. Physical maturity, in the form of the appearance of two pubic hairs, is the determining factor. We do generally say that one becomes an adult at <i>bar</i>/<i>bat mitzvah</i>, since Rava (Niddah 48b) articulates a principle (known as <i>chazakah d’rava</i>) that one may assume that the two hairs have appeared by the age of <i>bar</i>/<i>bat mitzvah</i>. However, <i>poskim</i> (Magen Avraham 39:1, Mishnah Berurah 271:3, and <i>Aruch Hashulchan</i> O.C.199:4) caution that we may rely on <i>chazakah d’rava</i> to validate teenage youngsters only for rabbinic requirements, not for biblical ones. Thus, we permit <i>bar mitzvah</i> boys to serve as <i>shlichei tzibbur</i> (leaders of communal prayer), because the <i>shliach tzibbur</i> executes responsibilities (e.g. the repetition of the <i>Amidah</i>) that are of rabbinic nature. However, these boys cannot serve as witnesses to a wedding or a <i>get</i>, recite <i>kiddush</i> on behalf of adults, or adjust a knot of a person’s <i>tefillin </i>until it is evident that they have shown signs of physical maturity (see, for example, Shulchan Aruch E.H. 141:25 and Shulchan Aruch C.M. 35:1). This is because we harbor doubts as to whether the individual is among the minority that does not physically mature by the age of <i>bar</i>/<i>bat mitzvah</i>.
  Accordingly, if any one of those present – the boy, the witness, or the girl – was not physically mature, the ceremony would be invalid. Although this is certainly insufficient grounds to justify a lenient ruling alone, it might serve as an additional consideration to support one. Rav Senderovic suggests, though, that this may not constitute a valid consideration, since it might be only a rabbinic law that for biblical matters we do not rely on <i>chazakah d’rava</i>. In other words, it is possible that on a biblical level we do rely on the assumption that most of those who have reached the age of <i>bar</i>/<i>bat mitzvah</i> have attained physical maturity.17<i class="footnote">On a biblical level, we are permitted to rely on <i>rov</i> (majority), but on a rabbinic level, we must be concerned with significant minorities as well (see Rashi to Chullin 12a s.v. <i>Pesach</i>).</i> Thus, it is questionable whether this consideration can be marshaled as legitimate ancillary support for a lenient ruling.
  Conclusion
  Rav Senderovic was able to reach a favorable outcome due to a fortunate confluence of factors: the presence of only one witness, the possibility that the witness did not see the transfer of the bottle cap, the possibility that the bottle cap may not have been worth a <i>perutah</i>, and the boy’s failure to speak before his delivery of the bottle cap.18<i class="footnote">For other possible considerations for a lenient ruling in such cases, see <i>Teshuvot Yabia Omer</i> (E.H. 9:20-21). For a ruling regarding a case where a man presented a situation thirty years after he (as a young man) gave a ring to a young woman who has since married someone else and has had children, see <i>Teshuvot V’hanhagot</i> (4:291). </i> Many similar situations, however, do not transpire so conveniently and do require <i>gittin</i>.19<i class="footnote">See Teshuvot Igrot Moshe (E.H. 4:79:1) and <i>Teshuvot Shaarei Ezra</i> (1:104) for examples. </i> Even though it seems far-fetched, at first glance, to attach any validity to such frivolous ceremonies, Halachah is actually quite stringent when it comes to matters of personal status. <i>Poskim</i> are averse to risking any slight violation of these <i>halachot</i>, which are of paramount importance.
  It is crucial that we take marriage very seriously and never countenance such outrageous behavior. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 1:84) even urges the caretakers of the youngsters involved in such incidents to punish them for their behavior, despite the fact that in the specific case he adjudicated, he determined that no <i>get</i> was necessary. If such a situation unfortunately does occur, an eminent Halachic authority must be consulted to adjudicate.20<i class="footnote">Rav Mordechai Willig told me that unfortunately, he has been presented quite a number of such cases for adjudication, and he submits the cases to Rav Zalman Nechemia Goldberg for a ruling. </i>
  
  Limitations on Honoring Parents and Minhagim
  
  In today’s socially integrated <i>Am Yisrael</i>, one of the most complex yet common dilemmas is that of conflicting <i>minhagim</i> (customs). Of course, children must generally attempt to follow their parents’ <i>minhagim</i>,1<i class="footnote">Refer to the beginning of our next chapter for a discussion of why children should keep their parents’ <i>minhagim</i>.</i> but exactly what this entails can be difficult to determine, given different family circumstances. One such question was brought before Rav Yosef Shalom Eliashiv (<i>Kovetz Teshuvot</i> 1:12), whose <i>teshuvah</i> (responsum) on the parameters of following family traditions we shall discuss in this chapter.
  The Case in Question
  A man whose non-observant Sephardic parents raised him in an Ashkenazic environment approached Rav Eliashiv with the following dilemma. Despite his Sephardic background, his parents had sent him to Ashkenazic religious schools and synagogues, leading him to follow the Ashkenazic tradition in all matters. Then, when the son was approximately thirty-five years old, his father had returned to his roots and become a fully observant Jew in accordance with Sephardic tradition. The father had demanded that the son return to his Sephardic roots as well, but the son had found this very difficult after following Ashkenazic practice for so long. Now, as the son was planning a wedding for his eldest child, the father insisted that the wedding be conducted according to Sephardic practice, and he even threatened to boycott the wedding if it was not.
  The son presented Rav Eliashiv with two questions. First, was he permitted to continue observing the Torah in accordance with Ashkenazic tradition? Second, would Halachah require him to obey his father’s demands under the <i>mitzvot </i>of <i>kibbud</i> and <i>mora av</i> (honoring and revering one’s father)?
  Minhagim
  Rav Eliashiv begins by emphasizing the importance of abiding by one’s family <i>minhagim</i>. The Gemara (Pesachim 50b) insists that one abide by his family customs even when it is difficult to do so. For example, Rav Eliashiv writes that an Ashkenazic Jew may not change his method of pronunciation to Sephardic or modern Israeli pronunciation; rather, he must recite his prayers using the pronunciation of his ancestors.2<i class="footnote">Not all authorities agree with Rav Eliashiv on this specific point. Rav Yehuda Amital reports that his wife’s grandfather, Rav Isser Zalman Meltzer, permitted changing to modern Israeli pronunciation. Common practice among Ashkenazic students of Yeshivot Hesder is to follow Rav Isser Zalman’s ruling. Rav Avraham Yitzchak Hakohen Kook (<i>Teshuvot Orach Mishpat</i> 17), though, disagrees with Rav Isser Zalman. For further discussion of this issue, see <i>Teshuvot Mishpetei Uzziel</i> (O.C. 1), <i>Teshuvot Seridei Eish</i> (2:5), <i>Teshuvot Igrot Moshe</i> (O.C. 3:5), and Rav Kook’s letter of approbation for <i>Teshuvot Mishpetei Uzziel</i>.</i>
  Rav Eliashiv continues, though, that the prohibition against changing <i>minhagim </i>is not without exception, as demonstrated by a ruling of the <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> C.M. 188). The <i>Chatam Sofer</i> was approached by members of a town where two <i>kehillot </i>(communities), one Sephardic and one Ashkenazic, formerly had functioned. However, a pogrom had caused most of the Jews to leave, and since the remaining populace could not sustain two separate <i>minyanim</i>, the two groups now had to combine into one functioning synagogue. The <i>Chatam Sofer</i> ruled that the remaining members of the community should choose which of the two synagogues would continue to function, whose <i>minhagim</i> they then would follow. Rav Ovadia Yosef (<i>Teshuvot Yabia Omer </i>6 O.C. 10) cites numerous authorities who concur with the <i>Chatam Sofer</i>’s ruling.
  The <i>Chatam Sofer</i> reasons that one may change from practicing all Ashkenazic traditions to practicing all Sephardic traditions and vice versa. Just as a non-Jew who converts to Judaism fully integrates into the Jewish community, so too may an Ashkenazic Jew fully integrate into a Sephardic community and vice versa. Rav Yosef Eliyahu Henkin (<i>Eidut L’yisrael </i>p. 162) similarly rules that if an Ashkenazic Jew decides to join a Sephardic community permanently, he may change his <i>nusach hatefillah</i> (liturgy) to the Sephardic one. He notes that historically, the entire Chassidic community changed from <i>nusach Ashkenaz</i> to <i>nusach Sefard</i> with the noble intention of praying in accordance with the mystical teachings of the Arizal.3<i class="footnote">See <i>Teshuvot Yabia Omer</i> (6 O.C. 10) for a summary of the rich <i>teshuvah</i> literature regarding the legitimacy of the Chassidim’s change of <i>nusach</i>. Some “<i>mitnagdic</i>” <i>poskim</i>, such as <i>Teshuvot Sho’eil Umeishiv </i>(3:1:247) and <i>Teshuvot Maharam Schick </i>(O.C. 43), wrote that the change was illegitimate and violates the obligation not to “abandon the teachings of [one’s] mother” (see Pesachim 50b). Other <i>poskim</i> (especially Chassidic <i>poskim</i>), such as <i>Teshuvot Divrei Chaim</i> (2 O.C. 8), defended the change, and as Rav Henkin notes, this opinion has emerged as the accepted view. Rav Henkin cautions, though, that it is forbidden to make such a change arbitrarily. </i> Of course, one should consult with a Rav before deviating from any family practice, as great caution must be exercised before deviating from practices observed by one’s ancestors for generations.
  This also explains the rulings of twentieth-century authorities (for example, <i>Teshuvot Igrot Moshe </i>O.C. 1:158 and <i>Teshuvot Yabia Omer</i> 5 O.C. 37) that Ashkenazic women who marry Sephardic men or vice versa, a relatively new phenomenon, should follow the husband’s traditional family practices.4<i class="footnote">This issue is discussed at greater length in our next chapter.</i> Although doing so entails deviating from the wife’s family tradition, these <i>poskim</i> apparently believe, as the <i>Chatam Sofer</i> asserts, that a Jew may fully integrate into the practices of a different Jewish community.
  Based on this, Rav Eliashiv rules regarding the case addressed to him that from the vantage point of <i>minhag</i>, the son may continue to practice Torah in accordance with Ashkenazic tradition despite his Sephardic ancestry. Rav Hershel Schachter similarly rules that if someone was raised in a non-Chassidic community, he need not practice Chassidic <i>minhagim</i> even if his paternal grandfather was Chassidic (see <i>Beit Yitzchak</i> 39:520). Indeed, many of us pronounce Hebrew differently from our fathers or paternal grandfathers.5<i class="footnote">Many of the communities in which we reside do not pronounce Hebrew in the Chassidic style. This is an example of community practice prevailing over family custom. For a discussion of how to resolve conflicts between community and family customs, see Rav Zalman Nechemia Goldberg’s <i>Darchei Hapsak</i> (p. 24 note 44).</i>
  We must emphasize that exceptional situations notwithstanding, it is imperative to follow the practices of one’s family and community (see, for example Shulchan Aruch O.C. 468:4 and <i>Mishnah Berurah ibid</i>. 14). In fact, Rav Ovadia Yosef would likely disagree with Rav Eliashiv’s ruling for this very reason, especially if the son lived in <i>Eretz Yisrael</i>. Rav Ovadia (<i>Teshuvot Yabia Omer </i>6 O.C. 10:4 and <i>Teshuvot Yechaveh Da’at </i>5:33; see also <i>Teshuvot Yabia Omer</i> 5 O.C. 37) laments the choice of Ashkenazic Jews in Israel to maintain their Ashkenazic practices instead of acknowledging that the Rambam and Rav Yosef Karo are the halachic authorities of <i>Eretz Yisrael</i>. Though he reluctantly yields to the Israeli Ashkenazim’s adherence to their traditional customs, he would probably instruct anyone of Sephardic origin who lives in Israel to follow Sephardic practice.6<i class="footnote">For a defense of the Ashkenazic Jews in Israel retaining their <i>minhagim</i>, see <i>Chazon Ish</i> (<i>Shevi’it</i> 23:5), Rav Yechiel Michel Tukachinsky’s <i>Ir Hakodesh V’hamikdash</i> (3:24), <i>Pe’at Hashulchan</i> (3:11), and Rav Elyakim (Getsel) Ellinson’s <i>Ish V’ishto</i> (pp. 24-25 note 31).</i>
  <i>Kibbud</i> and <i>Mora Av</i>
  Rav Eliashiv proceeds to discuss whether the son must honor his father’s demand that he follow Sephardic practice. This question hinges on a classic debate concerning the character and scope of the <i>mitzvah </i>of <i>kibbud av va’eim</i>. The Ramban (Yevamot 6a s.v. <i>Mah L’hanach</i>), Rashba (<i>ibid</i>. s.v. <i>Mah L’hanach</i>), and Ritva (<i>ibid</i>. s.v. <i>Yachol</i>) define this <i>mitzvah</i> as providing service to one’s parents but do not necessarily include obeying the will of a parent under it. Thus, one is not obligated to obey a parent’s demand if the requested activity does not benefit the parent. The Vilna Gaon (Bei’ur Hagra Y.D. 240:36) notes that <i>Tosafot</i> (Yevamot 6a s.v. <i>Shekein</i> and Kiddushin 32a s.v. <i>Rav Yehudah</i>) agree with this definition of <i>kibbud av va’eim</i>. These <i>Rishonim</i> base their assertion on the description of the <i>mitzvah</i> that appears in the Gemara (Kiddushin 31b), which gives the examples of “providing food and drink, clothing them, and helping them enter and leave a building.” Accordingly, the <i>mitzvah</i> entails only providing service to the parent.
  The Vilna Gaon (ad. loc.) believes that the Shulchan Aruch and Rama accept the aforementioned <i>Rishonim</i>’s definition of <i>kibbud av va’eim</i>. The Shulchan Aruch codifies a ruling of the <i>Terumat Hadeshen</i> (40) that if a son wishes to study in a particular Yeshiva, he does not have to honor a parent’s request that he not study at that Yeshiva because it is located in a dangerous area. The Rama, in turn, quotes a ruling of the Maharik (167) that a son is not required to honor a parent’s demand that he refrain from marrying a particular woman. The Vilna Gaon explains that these rulings are based on the definition of the <i>mitzvah</i> of honoring parents as servicing them but not necessarily obeying them.7<i class="footnote">See, however, <i>Teshuvot Meishiv Davar</i> (2:50), wherein the Netziv rules that this does not apply if it will cause disparagement to the parents.</i> Rav Eliashiv notes that according to this approach, the son would not be obligated to accede to his father’s demand that he practice the Sephardic tradition.
  The <i>Sefer Hamakneh </i>(Kiddushin 31b s.v. <i>Tanu Rabbanan Eizehu</i>), on the other hand, rules that the <i>mitzvah</i> of <i>mora av va’eim </i>(revering parents) requires one to obey a parent’s request even if it will not benefit the parent. Indeed, the Gemara (Kiddushin 31b) states that this <i>mitzvah</i> forbids a child to contradict his parents’ words, which, the <i>Sefer Hamakneh </i>believes, includes disobeying the parent’s orders. The <i>Sefer Hamakneh </i>also believes, contrary to the Vilna Gaon’s assertion, that the Rama actually supports this approach. The Rama presents a specific situation – when a parent demands the child not marry a specific woman – in which he rules that the child is not required to abide by the parent’s demand. Had the Rama agreed with the Ramban, Rashba, Ritva, and <i>Tosafot</i>, he should have presented a general rule that one need not obey a parent’s request if it is not intended to benefit the parent. Since he does not, his ruling must be specific to situations of marriage for the reasons that the Maharik outlines.8<i class="footnote">For example, the <i>Maharik</i> argues that this demand causes the child to neglect his obligation to marry and have children. </i> According to the <i>Sefer Hamakneh</i>’s approach, it would seem that the son must obey his father’s demand that he abide by Sephardic tradition.
  Rav Eliashiv notes, however, that even the <i>Sefer Hamakneh </i>does not require obedience when it would cause a loss to the child. Whereas ignoring a parent’s request without good reason constitutes a lack of reverence for the parent, ignoring the request out of concern for loss does not. Since, in the case Rav Eliashiv addresses, it would be very disruptive for the son’s family to change its halachic lifestyle so significantly, Rav Eliashiv rules that the son is not required to honor his father’s request that he do so.
  Conclusion
  The Rambam (<i>Hilchot Mamrim </i>6:8), Shulchan Aruch (Y.D. 240:19), <i>Aruch Hashulchan</i> (Y.D. 240:42), and <i>Teshuvot Seridei Eish </i>(3:95) urge the parents of grown children to refrain from imposing unnecessary and burdensome demands on their children. Parents should help their children by not making it excessively difficult for them to fulfill the <i>mitzvot </i>of <i>kibbud </i>and <i>mora av va’eim</i>.9<i class="footnote">For examples of when a child is permitted to disregard a parent’s order, see Shulchan Aruch (Y.D. 240:25) and <i>Aruch Hashulchan</i> (Y.D. 240:36 and 45).</i> On the other hand, children must do their utmost to properly fulfill these <i>mitzvot</i>, which the Rambam (ad. loc. 6:1) greatly extols and the Gemara (Kiddushin 30b) compares to honoring and revering Hashem. Given that the Torah, in a rare occurrence, states the reward for this <i>mitzvah</i> of honoring parents (Shemot 20:12), it is very advisable to consider what is at stake when dealing with these matters.
  
  Divergent Family Customs between Husband and Wife
  
  The obligation to abide by the halachic practices of our families is best illustrated by the following Talmudic passage (Pesachim 50b):
  “<i>Bnei Byshan</i>” had a practice not to travel from Tyre to Sidon on Friday (to avoid detracting from their preparations for Shabbat - Rashi). Their children posed the following question to Rabi Yochanan: “Our fathers were able to abide by this stringent practice because they were wealthy. We, however, find it economically cumbersome to abide by this stringency. Are we obligated to maintain their practice?” Rabi Yochanan answered, “Your ancestors accepted it upon themselves [and you must follow your fathers’ custom], as the <i>pasuk</i> states, “Listen, my son, to the teachings of your father, and do not abandon the Torah of your mother” (Mishlei 1:8).
  A question arises, though, when a husband and wife have divergent family <i>minhagim</i>: whose <i>minhagim</i> should be followed? In this chapter, we will review both published and unpublished responsa on this topic.1<i class="footnote">For a thorough review of this topic and the responsa written about it before 1981, see Rav Menachem Slei’s essay in <i>Noam</i> (23:145-180).</i>
  Whose Customs?
  A major dispute exists regarding the obligation to follow established customs. The <i>Teshuvot Chavot Ya’ir</i> (126), after establishing that this obligation is rabbinic in nature, asserts that it applies only to community <i>minhagim</i> (practices). However, children are not bound to follow the personal stringencies adopted by their parents. This is evident from the Gemara (Chullin 105a) that records that Mar Ukva did not observe his father’s stringency to avoid dairy for twenty-four hours after consuming meat. If children were bound by their parents’ stringencies, Mar Ukva would have been required to continue his father’s practice. Apparently, then, the Gemara that requires children not to abandon their parents’ practices applies only to communal <i>minhagim</i>. This understanding of the story of <i>Bnei Byshan</i> is endorsed by the Gilyon Maharsha (Y.D. 214:2).
  On the other hand, the Pitchei Teshuvah (Y.D. 214:5) cites the <i>Teshuvot Zichron Yosef</i> (Y.D. 14), who disputes the contention of the <i>Chavot Ya’ir</i>. He maintains that the story of <i>Bnei Byshan</i> refers to family practices as well. According to this approach, the reason why Mar Ukva was not obligated to observe his father’s stringency was not because there is no such thing as a binding family practice, but rather because he himself never practiced it.2<i class="footnote">The critical time for evaluating <i>minhagim</i> is when the child becomes independent (<i>Teshuvot Maharam Schick</i> O.C. 259). Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi </i>6:59) writes that such discretion regarding whether one should follow his father’s practices does not apply to practices of one’s “tribe,” meaning the accepted practices of Sephardic and Ashkenazic Jews. Thus, a Sephardic Jew cannot decide not to recite <i>selichot</i> during the month of <i>Elul</i>, and an Ashkenazic Jew cannot absolve himself of the custom to avoid <i>kitniyot</i> (legumes) during <i>Pesach</i> (see <i>Gray Matter 1</i> pp. 239-254). </i> If, however, Mar Ukva had ever practiced his father’s stringency, he would have been bound to it for his entire life. 3<i class="footnote">There is some dispute regarding how many times a child must observe a parent’s practice in order for it to become binding. The <i>Pri Chadash </i>(<i>Kuntress Haminhagim</i> 7) seems to obligate the child to maintain his family’s practice even if he kept it just one time, whereas the <i>Matteh Efraim</i> (589) appears to require the child to uphold the family custom three times in order for it to become binding.</i>
  The issue of communal <i>minhagim</i> has been complicated by contemporary circumstances. As Rav Moshe Feinstein writes (<i>Teshuvot Igrot Moshe</i> O.C. 1:159), “Here in New York and Brooklyn, where people have gathered from many different communities where there were divergent <i>minhagim</i>, everyone should follow the <i>minhagim</i> of the place he came from.” People are resistant to establishing one custom in the United States, as evidenced by a visit to most synagogues on <i>chol hamo’eid</i>, where one will find some men wearing <i>tefillin</i> and others who are not.4<i class="footnote">See <i>Teshuvot Sho’el B’shlomo</i> 30 for a discussion and partial defense of this practice.</i> In many communities, the situation of “two courts in one city” (Yevamot 14a) prevails, as people retain many of the customs of the communities that their parents and grandparents came from. Thus, even according to the <i>Chavot Ya’ir</i>, today, when communal <i>minhagim</i> have not fully emerged in many communities, family practices have to a certain extent replaced them.5<i class="footnote">Rav Hershel Schachter (<i>Beit Yitzchak</i> 39:516) notes that some <i>minhagim</i> are communal and some are familial; however, it sometimes is difficult to determine the category in which a minhag belongs. For example, the practice of Jews from Germany is to wait only three hours between meat and milk. Rav Schachter believes that this is a communal practice and that one who does not reside in a German-Jewish community should follow the practice of most Jews to wait six hours between milk and meat. Rav Yeshaya Siff and Rav Mordechai Willig, however, told me that they believe this to be a familial custom and that Jews from Germany may continue to wait only three hours between meat and milk even though they do not live in a German-Jewish community. </i> Accordingly, when husbands and wives come from families that came from different communities, whose <i>minhagim</i> should be followed - the husband’s or the wife’s?
  The <i>Tashbeitz</i>’s Responsum
  In earlier times, it was unusual for people to marry someone who lived far away. Hence, there was little chance of divergent family customs between husband and wife. The development of modern means of transportation and the mass migration movements of the past century facilitated marriages between Jews of different backgrounds. Therefore, many twentieth-century authorities addressed this issue without the benefit of explicit sources in the writings of earlier <i>poskim</i>. Moreover, in pre-war communities, the principle of community custom (<i>minhag hamakom</i>) prevailed, and the question of whose family customs should be followed was almost moot, as the couple would follow the practices of whichever community they elected to reside in.
  In one of the few responsa on this topic published before the twentieth century, the <i>Tashbeitz</i> (3:179) presents two reasons why the wife should adopt her husband’s customs. First, it would be highly disruptive if both the husband and the wife were to maintain their respective, conflicting family practices. For example, if the husband is Sephardic and the wife is Ashkenazic, the husband would eat <i>kitniyot</i> (legumes) on <i>Pesac</i>h and the wife would not. It would be extremely difficult for the husband and the wife to abide by two different standards of kashrut. Second, the <i>Tashbeitz</i> invokes the Talmudic principle “<i>ishto k’gufo</i>” (lit. his wife is like his own body; see Sanhedrin 28b and <i>Encyclopedia Talmudit</i> 2:300-301). Because we consider a husband and wife as one person, the Gemara states that one is disqualified from testifying about his wife’s relatives just as one is disqualified from testifying about his own relatives. The <i>Tashbeitz</i> understands that based on this principle, the wife should adopt her husband’s family traditions.
  The <i>Tashbeitz</i> also writes that even after the husband dies, the wife should continue practicing her husband’s family customs if the couple has children and she has not remarried. He bases this assertion on the Torah’s laws regarding a woman whose father is not a <i>kohen</i> eating <i>terumah</i> (<i>kohen</i>’s tithe; see Vayikra 22:11-13). If her husband is a <i>kohen</i>, she may eat <i>terumah</i> even after his death if the couple has children and she has not remarried.
  The Responsa of Rav Feinstein, Rav Felder, Dayan Weisz, and Rav Yosef
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:158), Rav Gedalia Felder (<i>Yesodei Yeshurun</i> 6:239-240), Rav Yitzchak Yaakov Weisz (<i>Teshuvot Minchat Yitzchak</i> 4:83), and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 5 O.C. 37) rule that the wife must adopt the halachic customs of her husband. As a precedent, they cite the Mishnah Berurah’s (468:19, and see Bei’ur Halachah 468:4 s.v. <i>Haholeich</i>) ruling that if one permanently relocates to a community whose halachic practices differ from those of the community which he left, he should adopt the new community’s customs. This rule applies whether the new community’s customs are stricter or more lenient than the old community’s.
  These authorities explain that Halachah views a woman who marries as moving to a new community — her husband’s home. Rav Moshe cites a number of biblical verses that demonstrate that the Torah views marriage as a woman moving into her husband’s home. For example, the Torah (Devarim 24:1), in describing the procedure for a divorce, states that the husband “shall send her from his home.” We see that the Torah considers a wife to be in her husband’s domain during the marriage. Accordingly, the wife must accept the customs of her husband’s family. Rav Ovadia and Rav Felder also cite the <i>Tashbeitz</i> as a precedent for their ruling.
  Reflecting the rulings of Rav Moshe, Rav Felder, Dayan Weisz, and Rav Ovadia, wives commonly accept their husbands’ family traditions.
  Rav Ovadia Yosef’s Major Limitation of this Rule
  Rav Ovadia Yosef (<i>Ohr Torah</i>, <i>Iyar</i> 5761 and <i>Yalkut Yosef</i> O.C. 318:12), though, imposes a major limitation on the rule that the wife must adopt her husband’s halachic practices. He writes that this rule applies only to practices that the husband’s family has practiced for generations, such as refraining from <i>kitniyot</i>. However, the wife is not obligated to adopt the stringent practices (<i>chumrot)</i> that her husband accepted upon himself.6<i class="footnote">This recalls the ruling of the <i>Chavot Ya’ir</i> that the obligation not to abandon established practices does not apply to personal stringencies adopted by parents. Rav Ovadia says essentially the same thing regarding personal stringencies of a husband.</i> For instance, if the husband accepted the stringent level of <i>shemittah</i> observance by refusing to rely on the <i>hetter mechirah</i>,7<i class="footnote">This refers to the practice of selling farmland in Israel to non-Jews so as to circumvent the restrictions of <i>shemittah</i>. For a more in-depth discussion of the validity of this practice, see the essays on the topic available at www.koltorah.org.</i> the wife is not required to abide by this stringency.8<i class="footnote">We should note that Rav Ovadia is following his approach (<i>Teshuvot Yabia Omer</i> 3 Y.D. 19:7) that the <i>hetter mechirah</i> is essentially acceptable. Many <i>poskim</i>, however, regard it as possibly invalid (e.g. Rav Shlomo Zalman Auerbach, <i>Teshuvot Minchat Shlomo</i> 1:44) or completely invalid (e.g. Rav Yosef Shalom Eliashiv, cited by Rav Yosef Efrat, <i>Mesorah</i> 1:72).</i> Rav Ovadia writes that if the husband is unable to maintain his strict practice due to his wife’s lack of cooperation, the husband should seek <i>hatarat nedarim</i> (annulment of vows) for his stringency.
  Another common application of this ruling is that if the husband avoids relying on communal <i>eruvin</i>,9<i class="footnote">See <i>Gray Matter 1</i> pp. 165-199 for a discussion of the laws of communal <i>eruvin</i> and why some people do not rely on them.</i> the wife is not bound to follow this stringency. Similarly, if the husband accepts the stringency to observe Shabbat according to Rabbeinu Tam’s standards of assessing when nighttime begins,10<i class="footnote">For a review of the debate between Rabbeinu Tam and the <i>Geonim</i> as to when the halachic night begins, see the essay about counting the <i>omer</i> during <i>bein hashmashot</i> (twilight) available at www.koltorah.org.</i> she does not have to abide by this stringency.
  It appears that common practice reflects Rav Ovadia’s ruling on this matter. For example, Rav Moshe Snow told me that although Rav Moshe Feinstein himself adopted the strict approach to <i>chalav yisrael</i>,11<i class="footnote">See our later chapter about <i>chalav yisrael</i> for a more in-depth discussion of the issues involved.</i> Rebbetzin Feinstein did not. Indeed, Rav Moshe writes (<i>Teshuvot Igrot Moshe</i> E.H. 2:12) that a husband “cannot impose his stringencies on her.”
  Rav Yehuda Henkin’s Responsum
  Rav Yehuda Henkin writes (<i>Teshuvot Bnei Banim</i> 3:29) that although the common practice is for wives to accept their husband’s family customs, in accordance with the aforementioned rulings, there is some room for flexibility. Rav Henkin challenges the fundamental assumption of Rav Moshe, Rav Felder, Dayan Weisz, and Rav Ovadia’s ruling. They assume that the Torah believes that, metaphysically speaking, a wife moves into the home of her husband. Rav Henkin, though, notes the dispute between Rabbeinu Tam and the Maharam of Rothenberg regarding whether a wife must move to the husband’s town or vice versa (see <i>Tur</i> E.H. 75). The Rama (E.H. 75:1) and the Beit Shmuel (<i>ibid</i>. 7) rule that Halacha takes cognizance of Rabbeinu Tam’s ruling that the husband must move to the wife’s town.12<i class="footnote">Rav Elchanan Grunwald argues that the Rama and Beit Shmuel do not accept Rabbeinu Tam’s ruling. Rather, they merely assert that the wife cannot be forced to move into the husband’s town, as she has a strong opinion (i.e. Rabbeinu Tam) to rely upon. Perhaps even the Rama and Beit Shmuel agree that ideally the wife should move to the husband’s town. Indeed, even Rav Henkin notes that most <i>Rishonim</i> disagree with Rabbeinu Tam concerning this matter. </i> If the husband moves to the wife’s town, observes Rav Henkin, then he will be required to observe the local halachic practices — those of his wife’s family.
  Rav Henkin also asserts that the <i>pesukim </i>cited by Rav Moshe do not necessarily constitute a halachic statement that the marital home belongs to the husband. It could be that the Torah merely reflects the sociological reality of the time, in which the husband controlled the marital home and, upon divorce, the wife left the home. Rav Henkin believes that the Torah does not preclude joint-ownership in either an economic13<i class="footnote">See our later chapters about marital financial arrangements for a more thorough analysis of this issue.</i>or a metaphysical sense.
  Moreover, Rav Henkin argues that the responsum of the <i>Tashbeitz</i> does not constitute a relevant precedent because it runs counter to the ruling of the Rama. Rav Henkin observes that the <i>Tashbeitz</i> (1:97 and 3:87 s.v. <i>V’hasomeich</i>) himself rejects Rabbeinu Tam’s ruling that the man must move to the wife’s town. It follows that the Rama, who does consider Rabbeinu Tam’s ruling, would disagree with the <i>Tashbeitz</i>.
  Rav Henkin concludes that we should not abandon the accepted practice for wives to follow their husbands’ family traditions. However, he rules that a wife may continue to follow her family’s traditions regarding a matter that does not impinge on her relationship with her husband and does not impose a hardship on her.14<i class="footnote">These two areas are considered within the husband’s domain, as it is in these areas that he has the right to cancel her vows (<i>hafarat nedarim</i>; see Bemidbar 30:7-17 and Shulchan Aruch Y.D. 234:55).</i> Rav Henkin requires that she stipulate with her fiancée before the marriage that she wants to continue to practice her own family’s traditions. We should note, however, that Rav Hershel Schachter (<i>Beit Yitzchak</i> 39:519) confirms the rulings of Rav Feinstein, Rav Felder, Dayan Weisz, and Rav Ovadia that the wife enters the domain of the husband “since this is the essence of marriage – the wife entering the domain of the husband.”
  Other Situations
  Rav Henkin also writes (in an unpublished responsum) that if the husband is a convert or a <i>ba’al teshuvah</i> and the wife’s family has a longer chain of halachic observance, the husband may adopt his wife’s family traditions. He writes, though, that it might be more appropriate for the husband to follow the prevalent traditions of the community to which he belongs.15<i class="footnote">This is appropriate only in a locale that has communal <i>minhagim</i>.</i> Rav Henkin counsels that the husband seek the guidance of his Rav in choosing the most appropriate approach to this issue. Rav Hershel Schachter (ad. loc.) writes that if the wife’s family is observant and the husband’s family is not, it makes sense to say that the husband is joining her family as far as <i>minhagim</i> are concerned. As such, the wife’s family’s <i>minhagim</i> should be observed.
  Rav Chaim David Halevi (<i>Techumin</i> 6:84) rules that in a marriage where the wife is observant and the husband is not, the family should practice the wife’s family’s traditions. Rav Zalman Nechemia Goldberg told me that he agrees with this ruling.
  Rav Zalman Nechemia also notes (<i>Darchei Hapsak</i> pp. 27-30) that if a couple lives in the same community as the wife’s parents and the husband attends the same synagogue as his father-in-law, he should follow the <i>minhagim</i> of his wife. For example, if an Ashkenazic man marries a Syrian-Jewish woman and moves to the Syrian section of Brooklyn, New York or Deal, New Jersey and joins a Syrian community, he should practice Syrian-Jewish <i>minhagim</i>.16<i class="footnote">Rav Zalman Nechemia cites the Gemara (Eruvin 41a), <i>Tosafot</i> (<i>ibid</i>. s.v. <i>Mibnei</i>), and <i>Teshuvot Chatam Sofer</i> (C.M. 188) as the basis for this ruling. Rav Zalman Nechemia stresses that it is not a question of whether to follow the practices of the husband or the wife, but rather depends on which community the couple resides in. The community’s <i>minhagim</i> determine the practice of the couple. Nonetheless, Rav Zalman Nechemia’s approach applies only to communities where there are established communal practices. </i>
  In addition, Rav Shlomo Zalman Auerbach (cited in <i>Ma’adanei Shlomo</i> p. 17 and <i>Yom Tov Sheini K’hilchato</i> p. 188) rules that a wife must follow her husband’s <i>minhagim</i> as part of her obligations to him. Accordingly, the husband enjoys the right to waive this obligation, which accounts for the common practice for wives to continue to pray with the <i>nusach</i> (liturgy) they are accustomed to.
  Rav Mordechai Willig rules that wives should practice certain aspects of the laws of <i>niddah</i> in accordance with their mothers’ family traditions.17<i class="footnote">This refers to matters that do not directly affect the husband. An example is whether the wife should immerse once, twice, or three times in the <i>mikvah</i>.</i> Rav Willig also maintains this position regarding how many Shabbat candles a woman lights, arguing that both of these matters are passed down from mother to daughter.18<i class="footnote">Rav Doniel Neustadt (<i>The Weekly Halachah Discussion</i> 1:6-8) writes that many women follow the practices of their mothers in regard to Shabbat and <i>Yom Tov</i> candle lighting, and he defends this practice, citing the <i>Teshuvot Ya’avetz</i> (107). </i>
  Conclusion
  Generally speaking, a wife should follow her husband’s family traditions, such as those regarding <i>kitniyot</i> on <i>Pesach</i>. Nevertheless, there are certain limited circumstances in which a wife may continue to follow her family’s traditions.19<i class="footnote">Converts and <i>ba’alei teshuvah</i> should consult their Rav regarding which practices they should follow. The absence of community <i>minhagim</i> in most Jewish communities today complicates this question, as most people simply observe many of the practices of the community from which their families came. Rav Moshe Shternbuch (<i>Teshuvot V’hanhagot</i> 1:369) writes that a <i>ba’al teshuvah</i> should follow the <i>minhagim</i> of his teacher, not of his family before it ceased to be observant. </i>
  
  Beit Din
  
  Marital Finances in Light of Contemporary Arrangements
  
  An <i>Erev Pesach</i> Debate
  I experienced an eye-opening interaction on <i>erev Pesach</i> 5767. I joined a gathering of rabbis who assembled in the office of a leading Rav in New Jersey for the sale of <i>chametz</i>. At that time, close to the fifth halachic hour of the day (when it becomes forbidden to benefit from <i>chametz</i>), I phoned my wife to remind her to nullify her <i>chametz </i>(<i>bittul chametz</i>). The other rabbis present expressed their astonishment that I asked my wife to perform <i>bittul chametz</i>. Their reaction stemmed from the Shulchan Aruch’s (O.C. 434:4) ruling indicating that a wife recites <i>bittul chametz</i> only in a situation in which her husband did not perform the <i>bittul</i>.
  The basis for the Shulchan Aruch’s uncontested approach is that traditionally, the husband was considered the owner of the marital property. This idea is expressed in part by the Talmudic principle (Gittin 77b), “<i>Mah she’kantah ishah kanah ba’alah</i>” (what a woman acquires automatically comes into the ownership of her husband). In fact, the Mishnah Berurah (434:19) writes that in the unusual case in which a wife does proclaim the <i>bittul</i>, she should state that she nullifies “all of the <i>chametz </i>in my husband’s domain”, not “all of the <i>chametz</i> in my domain,” since Halachah regards marital property as belonging solely to the husband.
  I responded that this Halachah might be different today, since contemporary society regards marital property as jointly owned.1<i class="footnote">Of course, this varies from couple to couple and locale to locale. For example, some couples keep their assets in separate accounts, while others keep everything in joint accounts. Some places (such as Israel, many European countries, and some states in the United States) have community property laws in which civil law views assets owned by either spouse as joint marital property, while other places do not have such laws. Still other locales employ equitable distribution laws, which, simply put, are a modified version of community property laws. In addition, these laws do not apply if the couple signed a prenuptial agreement specifying that either party retains ownership of property owned before the marriage. The local civil law regarding the ownership of marital property during a marriage (not only in case of divorce) also must be considered.</i> In general, Halachah takes contemporary practices into consideration in regard to monetary matters (see, for example, Bava Metzia 74a and 83a). With regard to money, there is much more flexibility than in other areas of Halachah, as the Gemara (Bava Metzia 94a) presents the accepted opinion of Rabi Yehudah that “<i>B’davar sheb’mamon tena’o kayam</i>” (a condition in the context of monetary law is valid).” Generally speaking, one may dispose of his money as he sees fit, and one may arrange his monetary affairs even in contradiction to Halachah. A classic example is a lender and borrower who agree that the borrower’s responsibility regarding the borrowed item applies only to the extent of an unpaid watchman (<i>shomer chinam</i>; see Bava Metzia ad. loc. and <i>Gray Matter 2</i> pp. 170-171).
  Indeed, Rav Shlomo Dichovsky of Israel’s Supreme Rabbinic Court insists that Halachah recognizes and incorporates Israeli civil community property laws. I reasoned that according to this approach, my wife and I jointly own the <i>chametz</i>, and therefore both of us should preferably recite <i>bittul chametz</i>. Even though <i>bittul chametz</i> can be accomplished by one’s agent (Shulchan Aruch O.C. 434:3), the Gemara (Kiddushin 41a) articulates a principle, “A <i>mitzvah</i> is greater when done by oneself than when done by his agent.” Hence, I remind my wife every year to recite <i>bittul chametz</i>.
  The other rabbis assembled (with the notable exception of one veteran Rav who commented that he thinks that I might be correct), on the other hand, replied that they believed that <i>mah she’kantah ishah kanah ba’alah</i> still applies despite the change in contemporary society.
  This debate reflects a much larger debate that currently rages among <i>poskim</i> and <i>dayanim</i> as to whether this Talmudic principle applies in the current social circumstances and milieu. In this section, we shall present this debate and its manifold halachic applications, of which <i>bittul chametz</i> is but one of dozens. We shall begin by outlining the basic rules regarding the classic financial relationship of a husband and wife as presented by <i>Chazal</i>.
  A Husband’s Obligations and Entitlements
  The Rambam (<i>Hilchot Ishut</i> 12:1-4) presents ten obligations Halachah demands from a husband, three of which are of biblical origin and seven of which are rabbinic enactments. The three Torah obligations are to provide food, clothes, and intimate relations for his wife (see Shemot 21:10 and Rashi ad. loc.). The seven rabbinic obligations are paying her <i>ketubah </i>money in case of death or divorce, paying her medical bills if she is sick, redeeming her if she is taken captive (a phenomenon not unheard of in the time of the Gemara and in certain countries even today), burying her if she dies, supporting her from his estate and allowing her to live in his house if he predeceases her,2<i class="footnote">She does not, though, inherit him. For ways of allowing a wife to inherit, see our later section about setting up halachically valid wills.</i> supporting their daughters from his estate until they marry, and allowing the male children from their marriage to inherit her <i>ketubah</i> (<i>ketubat banin dichrin</i>). Halachah entitles a man to four items from his wife: her earnings (<i>ma’aseih yadayim</i>), whatever lost items she finds (<i>metzi’ah</i>), the income generated by the property that she brings into the marriage during her lifetime (<i>nichsei melog</i>), and the priority to inherit her if she predeceases him.
  <i>Chazal</i> also instituted, the Rambam continues, that three of each partner’s respective obligations be formulated as quid pro quo arrangements. The husband is entitled to his wife’s <i>ma’aseih yadayim</i> in exchange for supporting her, to benefit from her <i>nichsei melog</i> in exchange for redeeming her, and to inherit her in exchange for burying her.
  The Wife’s Property
  Halachah divides a wife’s property into three sections (see Shulchan Aruch E.H. 85 and <i>Pitchei Choshen </i>volume 8). The first part is the <i>nedunyah</i> (dowry), which is categorized as <i>nichsei tzon barzel</i> (“iron sheep property”).3<i class="footnote">It is referred to as “iron sheep property” because its value does not vary.</i> The <i>nedunyah</i> is, generally speaking, listed in the <i>ketubah</i> and assigned a value. The husband assumes the financial responsibility for this property, and upon his death or divorce, the <i>nedunyah</i> is returned to the wife, either in its original form or as its assigned value in the <i>ketubah</i>, regardless of whether that value has appreciated or depreciated.
  <i>Nichsei melog</i> (“property that is plucked”)4<i class="footnote">It is so called because the husband may “pluck” this property and keep the revenue thereby generated, such as dividends from stocks or rent for an apartment.</i> is all other property that a wife either brings into the marriage (though not listed in the <i>ketubah</i>) or acquires during the marriage. The wife retains title to the <i>nichsei melog</i>, but the husband is entitled to benefit from it during the wife’s lifetime (provided that he does not mismanage it) and potentially inherit it (if she predeceases him).
  Additionally, a wife can own her own property in a marriage. This occurs either when she is gifted the money on condition that the husband enjoys no rights to this property or if the husband waives his rights to the property.
  The <i>Ketubah</i>
  <i>Chazal</i> (Ketubot 11a) instituted the <i>ketubah</i>-obligation to be paid in case of divorce “so that it should not be light in his eyes to divorce her.” This concern was particularly relevant in the era prior to the enactment of <i>cheirem d’Rabbeinu Gershon</i>, which forbade a husband to divorce his wife against her will. The <i>ketubah</i> money was intended to be a very significant sum that in practice constituted a significant disincentive to divorce a woman against her will (as is clear from Gittin 58a, Rama E.H. 119:6, and Pitchei Teshuvah E.H. 154:27). The <i>ketubah</i> also is paid if the husband predeceases the wife so that she will have money to live off before she remarries.
  As is apparent from a study of <i>Masechet Ketubot</i>, the <i>ketubah</i> also serves as a potent tool for <i>beit din</i> to prod a spouse to behave appropriately. If a husband misbehaves, <i>beit din</i> can warn him that if he does not mend his ways, he will be pressured to divorce his wife and pay her the <i>ketubah</i>. If a wife is not acting properly, she may be warned that if she persists, her husband can divorce her without the <i>ketubah</i> payment.
  In case of his death or a divorce in which the wife is not at fault, she receives the <i>nichsei melog</i> she brought into the marriage, the <i>nedunyah</i> itself or its original value as set forth in the <i>ketubah</i>, and the value of <i>ketubah</i> itself (which traditionally was substantial). She also retains, of course, any property designated as her private property. The husband, on the other hand, takes all the money generated in the course of the marriage.
  The monetary arrangements between a husband and wife allow for an even distribution of obligations and rights. A man works hard for his family, and thus the family’s financial assets are in his control. A woman needs to focus her attention on the family, and thus she is relieved from the burden of generating income and managing investments to support the family. In case of death or divorce, she is provided for with the provisions of the <i>ketubah</i>.
  Even during the course of a marriage, there are ramifications of the fact that Halachah regards the marital property to be in the sole possession of the husband. For instance, a wife is not permitted to donate significant mounts of money to <i>tzedakah</i> without her husband’s consent (Shulchan Aruch Y.D. 248:4), while a husband has no such limitation. In regard to ritual matters, the home and marital property belong to the husband, and for this reason it is the husband who must nullify the <i>chametz</i>.
  Contemporary Application
  Applying these rules to the contemporary situation is far from simple. The value of the <i>ketubah</i> as set forth in the Mishnah (Ketubot 1:2) is exceedingly low by contemporary standards and hardly serves as ample means of supporting a woman in case of death or divorce. According to Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 4:91-92), the Ashkenazic <i>ketubah</i> is valued at one hundred pounds of silver, which in January 2008 amounted to $21,870.5<i class="footnote">For alternative views regarding the value of the <i>ketubah</i>, see <i>Techumin</i> (25:180-194).</i> Indeed, Rav Hershel Schachter (at a conference of the Council of Young Israel Rabbis) articulated6<i class="footnote">Rav Schachter told me that Rav Yitzchak Herzog already made this point more than fifty years ago. </i> the need to update the value of the <i>ketubah</i>, but there has been no movement to implement his suggestion.
  In addition, the Ashkenazic<i> ketubah</i> is a standard document, and a list and an evaluation of the <i>nedunyah</i> is not made. Furthermore, many couples list their real estate and financial assets, such as stocks and bonds, as jointly owned between the husband and wife.7<i class="footnote">Some professionals even list all of their assets in their wives’ names to make them “judgment-proof” (i.e. they cannot be sued for malpractice, since technically they do not own any assets). </i> Moreover, most women, at least at some point in the marriage, earn a substantial salary from a job that entails considerable responsibilities. Today, a wife is expected to assume some of the responsibility for the household finances. These considerations may call for a reevaluation of the responsibilities and rights of spouses towards each other in the contemporary setting.
  This issue is the subject of an intense debate between two of the great <i>dayanim</i> of our time, Rav Shlomo Dichovsky and Rav Avraham Sherman, members of the State of Israel Supreme Rabbinic Court.8<i class="footnote">They present their opinions in the eighteenth volume of <i>Techumin</i> and respond to each other’s arguments in the subsequent volume of that Torah journal.</i> We shall focus on the three primary issues involved in this debate: whether the <i>tena’im</i> signed at the wedding constitute a financial partnership agreement between husband and wife, whether Halachah recognizes and incorporates Israeli civil community property laws in accordance with the celebrated rule of <i>dina d’malchuta dina</i> (the halachic obligation to respect the law of the land in which we reside), and whether Halachah recognizes the custom among many married couples in the contemporary era to regard their property as a financial partnership.
  The original debate concerns Israeli secular law, which since 1973 views marital property as “community property,” meaning a financial partnership requiring an equal division in case of divorce. From 1973 until 1992, Israeli secular law stated that the community property laws do not apply to cases adjudicated by State of Israel Rabbinic Courts. However, in 1992, Chief Justice Aharon Barak of Israel’s secular Supreme Court ruled that State of Israel Rabbinical Courts must also adjudicate disputes in accordance with community property laws. This sparked the huge debate between Rav Dichovsky and Rav Sherman as to whether <i>dayanim </i>can tolerate Justice Barak’s order or must resist it.
  <i>Tena’im</i>
  Ashkenazic Jews since the time of the <i>Rishonim</i> have conducted <i>tena’im</i> (lit. conditions) for first marriages, in which the in-laws pledge the financial support they will provide the young couple. Included in this document is a clause stating, “They (the newlyweds) shall not conceal assets from each other, and they shall equally control their property.” Rav Dichovsky points to this clause as a precedent for the halachic recognition of civil community property. He notes that one of the great nineteenth-century halachic authorities, the Maharsham (<i>Teshuvot Maharsham</i> 1:45), applies this clause in practice, claiming that it entitles the wife to give a substantial donation to <i>tzedakah</i> even without her husband’s consent.
  As a precedent, the Maharsham cites the Maharik (57), who excommunicated a husband for concealing marital assets from his wife. The Maharik cited the aforementioned clause in the <i>tena’im</i> as the basis for his action. The Maharsham explains that such action was not taken in the times of the Gemara since the <i>tena’im</i> in that time apparently did not contain this clause. Indeed, Rav Yehudah Leib Graubart (<i>Teshuvot Chavalim Ban’imim</i> 5 E.H. 34), rules on the basis of this clause in our <i>tenai’im</i> (and <i>dina d’malchuta dina</i> of early-twentieth-century Canada) that a wife in contemporary circumstances shares the same right as her husband to donate large sums to <i>tzedakah</i>.
  Rav Sherman responds, however, that two major nineteenth-century halachic authorities do not subscribe to the approach of the Maharsham. Rav Shlomo Kluger (<i>Teshuvot Tuv Ta’am Vada’at </i>3:181) objects to the approach of the Maharik since “so many pages of the Gemara and Shulchan Aruch would be nullified.” He asserts that the clause in the <i>tena’im</i> is merely a blessing bestowed on the couple by the fathers of the bride and groom and the witnesses. He also raises the possibility that the assets mentioned in the <i>tena’im</i> refer only to the <i>nichsei melog</i>. Rav Yitzchak Shmelkes (<i>Teshuvot Beit Yitzchak</i> E.H. 1:110) also expresses doubt as to whether this clause in the <i>tena’im</i> is a binding financial agreement or simply poetics (“<i>shufra d’shtara</i>”).
  Moreover, Rav Sherman notes that the <i>tena’im</i> refer only to the time that the couple is married. It gives the wife the right to fully access the family’s assets, he argues, but does not assign her title or partnership rights in said assets. He points to the concluding sentence of the <i>tena’im</i> - “They should live together with love and affection” - as evidence that the clause applies only to financial arrangements during the marriage, not to the ownership of the assets. Finally, even if the <i>tena’im </i>were to be regarded as binding under all circumstances, their potential impact is limited, since Sephardic Jews and even some Ashkenazic Jews do not sign this document.9<i class="footnote">Rav Hershel Schachter (<i>Mip’ninei Harav</i> p. 213) records that Rav Yosef Dov Soloveitchik advised against signing <i>tena’im</i>, even immediately before a <i>chuppah</i> (as is the practice in some circles), due to concern for the severe <i>cheirem</i> against canceling <i>tena’im</i>.</i>
  Rav Dichovsky responds by acknowledging that <i>tena’im</i> do not assign partnership rights to the wife in the marital assets. However, he explains, it teaches that the system presented in the Gemara and Shulchan Aruch for the financial arrangement in marriage is not immutable and is subject to change in favor of more financial rights for the wife. Rav Dichovsky simply seeks to prove that the Israeli civil law concept of community property is not a “foreign implant within the vineyard of Israel.”
  <i>Dina D’malchuta Dina</i>
  The Gemara (Gittin 10b and elsewhere) presents the principle of <i>dina d’malchuta dina</i>. Thus, Halachah obligates us to pay taxes in accordance with the local laws (see the many sources cited by Rav Ovadia Yosef in <i>Teshuvot Yechaveh Da’at</i> 5:64). However, the scope of this principle remains a matter of unresolved debate. One unsolved matter is the question of whether a <i>beit din</i> should follow civil laws in adjudicating financial disputes between Jews when such laws contradict Halachah. The Rama (C.M. 369:11) rules that if such laws are made “for the betterment of society,” the <i>beit din</i> must honor such rules. The Shach (C.M. 73:69), on the other hand, rules that civil laws that do not conform to Jewish financial law should not be applied by <i>beit din</i> in resolving disputes between two Jews.
  Rav Dichovsky cites prominent nineteenth- and twentieth-century authorities who endorse the view of the Rama. The <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> C.M. 44) rules that government rules prohibiting the number of wine distributors in a certain region should be honored in <i>beit din</i> even if Halachah imposes no such restrictions.10<i class="footnote">Interestingly, the <i>Chatam Sofer</i> emphasizes that if the government had not imposed this restriction, the local <i>beit din</i> would have, since it is such a logical and beneficial rule. It is thus not entirely clear that the <i>Chatam Sofer</i> would require following <i>dina d’malchuta dina</i> if a monetary law is made that contradicts Halachah, even if it is for the betterment of society, if it would not have been imposed by the local <i>beit din</i>.</i> Rav Meir Arik (<i>Teshuvot Imrei Yosher</i> 2:152:2) rules that <i>beit din</i> must honor civil laws prohibiting landlords from expelling tenants from an apartment at the termination of the lease.11<i class="footnote">Rav Arik argues that perhaps even the Shach would agree that disputes relating to land should be governed by <i>dina d’malchuta dina</i>, since the government has ultimate control over the land.</i> Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 2:62) rules that Halachah recognizes the validity of certain aspects of civil bankruptcy laws, which undoubtedly contradict halachic norms. Rav Dichovsky argues that <i>beit din </i>similarly should recognize civil common property laws, since the civil authorities make these laws for the benefit of society.
  Rav Sherman responds that civil community property laws are not enacted “for the betterment of society.” He cites from the writings of Israel’s Chief Justice Aharon Barak (who issued the decision requiring <i>batei din</i> to honor such laws) that these laws are enacted to inculcate within society the secular belief that males and females should be treated in exactly the same manner. Rav Sherman notes that these laws often are unfair to husbands, as on one hand they must support their wives and pay their medical and clothing expenses, but on the other hand they must cede half of their earnings even though their wives are not required to earn money to support the family. Rav Itamar Warhaftig (<i>Alon Shevut</i> 92:39) writes that an unscrupulous wife could be motivated to divorce by the community property rules, especially if the marital assets are large. Thus, far from being a law that serves to better society, it could actually undermine society. In fact, most states in the United States do not have community property laws precisely because in many cases they can lead to dramatically unfair results. Instead, most states use equitable distribution laws, which we shall discuss below.
  Rav Sherman applies a ruling of the Rashba (cited as normative by the aforementioned Rama), who writes that <i>beit din</i> must not adopt the civil laws that state that a father recovers the dowry of his daughter if she dies within the first year of her marriage. The Rashba denounces the adoption of such laws, stating that any <i>dayan</i> who would accept the civil law on this matter “collapses the walls of Torah and eliminates the roots and branches [of Torah], and the Torah will demand justice from his hand.” The Rashba believes that such internal matters of dispute between Jews must be resolved in accordance with Halachah, not by adopting a foreign legal system whose values differ from ours. Rav Sherman believes that the Rashba’s strong reproof applies equally to a <i>beit din</i> that adopts civil community property laws.
  Even without utilizing community property laws, <i>dayanim</i> can ensure that a divorced mother is assured of financial support by ordering the husband to provide support for her and her children even after the divorce. A <i>beit din</i> could award such money, even though it is not mandated by Halachah, based on the idea of “divorce compensation,” which a <i>beit din</i> can issue “using its authority of discretion (as provided for in many <i>beit din</i> arbitration agreements) as appropriate to all the circumstances involved and in accordance with the size of the marital assets and the economic situation of the parties” (<i>Piskei Din Rabbaniyim</i> 1:137).12<i class="footnote">We should note that Rav Yosef Shalom Eliashiv does not accept the approach of divorce compensation (<i>Piskei Din Rabbaniyim</i> 7:111, 8:36, and 9:65). </i>
  <i>Minhag Hamedinah</i>
  Halachah grants much flexibility regarding monetary law if both parties consent. Moreover, if a community has adopted a particular practice regarding a monetary matter, common custom, generally speaking, overrides Halachah (<i>minhag mevateil halachah</i>; see <i>Yerushalmi Bava Metzia</i> 7:1). A classic example is presented in the Mishnah (Bava Metzia 6:1), which states that an employer cannot insist that his employees work from dawn to dusk if the local custom among hired workers is not to work such hours.
  This rule has particular relevance to the manner of paying the <i>ketubah</i> in case of death or divorce. The Rambam (<i>Hilchot Ishut</i> 23:12) and Shulchan Aruch (E.H. 66:11)13<i class="footnote">These comments appear in the context of how much money should be assigned in a <i>ketubah</i>.</i> specifically state that “In all of these matters and those like it, common local custom is a central pillar, and we adjudicate disputes on this basis” unless expressly stipulated to the contrary. One may assume that those who marry or enter in any other relationship without stipulations intend the relationship to function in accordance with the local common custom.
  Indeed, the <i>Chazon Ish</i> (<i>Likuttim </i>C.M. 16:1) states that even in cases in which the rule of <i>dina d’malchuta dina</i> does not apply, nonetheless “the law of the land determines the intentions” of the parties to an agreement. Thus, in dealing with a corporation, one may assume that the parties intend to follow the local laws regarding corporations despite the fact that these laws do not conform to Halachah.14<i class="footnote">See <i>Techumin</i> 26:357-361 for a 2005 ruling of the Tiberias <i>beit din</i> on this subject.</i>
  Rav Dichovsky, in turn, argues that the <i>minhag hamedinah</i> regards the marital relationship as a full financial partnership. He writes:
  The practice, even in <i>Chareidi</i> families – including the families of eminent Torah authorities – is to view the wife as an equal to her husband in the family’s assets. This is expressed in the listing of both spouses as joint owners of the marital residence, by the fact that marital assets are bought and sold only upon mutual consent, and with the bequeathing of the marital estate to the wife. I have probated thousands of wills [as a State of Israel rabbinic judge], including the wills of the most <i>Chareidi</i> families, and I have not found even one of them in which the wife has been requested to forgo her share in the estate in favor of the halachic heirs, with the exception of a second marriage and cases in which the husband died shortly after the wedding….I do not understand why we must object to enforcing community property laws during the husband’s lifetime (i.e. in case of divorce) but consent to it after his death….I believe that the concept of community property has been accepted by Torah-observant families, including the families of practicing <i>dayanim</i>. Every one of us [<i>dayanim</i>], and I say this with certainty, views his wife as a full partner in the family’s assets. Civil courts have not conceived the idea of community property based on an ideology that is antithetical to Torah values; rather, [their rulings] reflect the reality of contemporary families, including <i>Chareidi</i> families.
  Rav Sherman’s Response
  Rav Sherman, on the other hand, notes that the aforementioned Rambam and Shulchan Aruch confine following <i>minhag hamedinah</i> to a situation in which “that custom has been accepted throughout the community.” One may assume that the parties implicitly consent to the common practice only if it is indeed common practice. Rav Sherman argues that it is not widespread practice among all families to manage their assets as an equal partnership. Moreover, involving one’s wife in decisions regarding the family’s finances does not imply that ownership of the assets has been transferred to her.
  Rav Dichovsky responds that what applied during the marriage cannot be reversed in case of divorce. He bases this on the opinion of the <i>Geonim</i> (cited in the Pitchei Teshuvah E.H. 99:7) that if one gifts an item to one’s wife and the marriage later sours, the husband is not entitled to recover the gift. The <i>Geonim</i> compare this to one who presents a gift to a friend. If the friendship later dissolves, he cannot reclaim the gift with the argument that had he known they would become enemies, he never would have gifted the item.
  The story that introduced this essay, in which almost all of those assembled to sell <i>chametz</i> were astonished that I asked my wife to nullify her <i>chametz</i>, seems to indicate the inaccuracy of Rav Dichovsky’s assertion that all communities accept the notion that a husband and wife today are financial partners on an equal footing in the couple’s financial assets.
  Explicit Agreement to Split Assets Based on Community Property Laws
  Rav Sherman goes so far as to rule that Halachah does not recognize community property laws even if both the husband and wife commit in writing to divide the marital assets based on community property laws. Rav Sherman argues that such an agreement violates the prohibition to adjudicate disputes in civil courts. Rav Dichovsky strongly disagrees with this point. In fact, based on a ruling of Rav Zalman Nechemia Goldberg (<i>Lev Mishpat</i> 1:286), the prenuptial agreement endorsed by the Rabbinical Council of America offers the option for a couple about to marry to agree to divide marital assets based on community property laws (or equitable distribution laws) at the time of the signing of the document.15<i class="footnote">See <i>Gray Matter 2 </i>pp. 170-172 for a fuller discussion and analysis of this ruling.</i>
  The Response of Other <i>Dayanim</i>
  Rav Dichovsky (<i>Techumin </i>26:157) concedes that many <i>dayanim</i> have not accepted his approach to communal property. Indeed, Rav Zalman Nechemia Goldberg (cited in <i>Hadarom</i> 70-71:146), considered one of the leading authorities regarding monetary matters, does not seem to accept Rav Dichovsky’s ruling unless the couple explicitly accepted the community property laws in effect on the day of the signing of the agreement. Rav Yaakov Ariel does not accept Rav Dichovsky’s approach due to the inequity of community property laws, although he acknowledges the halachic ramifications of the change in the manner in which spouses manage their collective finances (as we shall discuss below).
  Four Fair Alternatives to Community Property Laws
  There remain at least four alternative means of dividing marital assets without resorting to secular community property laws. A variation of community property laws, known as equitable distribution, is employed by many states in the United States. Equitable distribution is not equal distribution - it means that marital assets are divided fairly. It could be divided fifty-fifty, but it also could be split in a more disparate fashion. Among the factors considered (the factors vary from state to state) are the duration of the marriage, spousal abuse or marital infidelity, economic fault of one spouse in wasting and dissipating marital property, amount of work each did to acquire the property, the respective responsibilities for providing for children of the marriage, earning power of each party, the contribution of a party as a homemaker, and the extent to which a party deferred achieving career goals in order to build the marriage and marital assets. Rav Ronald Warburg reports that some <i>dayanim</i> will employ civil equitable distribution laws as criteria in dividing marital assets. As mentioned, some <i>dayanim</i> adopt the idea of divorce compensation, which works along somewhat similar lines.
  In addition, Rav Warburg writes (<i>Hadarom</i> 70-71:131) that the prevalent view among <i>dayanim</i> in the State of Israel rabbinic courts is to regard property listed in the names of both spouses as jointly-owned property, even if the husband’s assets alone financed the purchase. They view a case in which the husband financed the purchase of a house and listed his wife as co-owner as a gift from the husband to his wife, which is not returned upon divorce (see the aforementioned Pitchei Teshuvah E.H. 99:7). The same applies to joint bank accounts, stock certificates, bonds, mutual funds, etc. Rav Warburg told me that many <i>dayanim</i> who serve on <i>batei din</i> in the United States adopt this approach as well.16<i class="footnote">Avi Levinson reports that Rav Mordechai Willig agrees with this approach.</i> Accordingly, in many marriages, the couple creates a partnership by listing themselves as joint owners of their property.
  Finally, Rav Hershel Schachter17<i class="footnote">Rav Schachter made this assertion in an address to a convention of the Council of Young Israel Rabbis.</i> argues that a woman is entitled to the money she earns from a full time job. Although Halachah states that a wife’s earnings belong to her husband (Shulchan Aruch E.H. 69:3-4), the <i>Dagul Meir’vavah</i> (E.H. 80:1) raises the possibility that a woman is entitled to earnings acquired through extraordinary efforts (<i>ha’adafah al yedei hadechak</i>).
  Rav Schachter asserts that the wife’s earnings that accrue to her husband include only small scale work, such as making small amounts of jewelry for sale. However, if she works as a full-time worker, she may claim <i>kim li</i> (“I follow;” see the <i>Bach</i> cited in the Beit Shmuel 80:2)18<i class="footnote">This approach assumes that the wife technically owns her earnings before they are transferred to her husband’s domain. Accordingly, if she follows the opinions that <i>ha’adfah al yedei hadechak</i> belongs to the wife, the transfer of ownership never takes place, and she retains title to her earnings.</i> the opinions that <i>ha’adafah al yedei hadechak</i> belongs to the wife and that she therefore enjoys the exclusive right to that salary. Rav Schachter applied this approach to an actual case. A husband donated every spare cent in the couple’s joint bank account to <i>tzedakah</i>, leaving no money to spend on even a very modest vacation. Rav Schachter advised the wife to open a separate account in her name to be funded with the money she would earn from her job, which she could then use to pay for a reasonable vacation for the couple.
  We should note that Rav Moshe Feinstein19<i class="footnote">Rav Moshe’s position is cited by his son, Rav Reuvein Feinstein, in an article that appears in the Memorial Volume to Rav Tzvi Tennebaum, <i>Sefer Eitz Erez </i>p. 801.</i> also maintains that a wife’s salary belongs to her. He goes so far as to say that if a wife travels to a discount outlet and buys an item for a much lower price than she would have had she purchased the item at a local store, the price differential belongs to her.
  Rav Yaakov Ariel’s Compromise
  Even halachic authorities who do not accept the approach of Rav Dichovsky may still recognize the many halachic implications of the changing financial relationship between husband and wife. Rav Yaakov Ariel (<i>Techumin</i> 22:129-147) adopts a compromise position. He asserts that even today, the husband assumes the primary responsibility of supporting his wife. He notes that he presented this point to hundreds of couples from all sectors of Israeli society who work in a wide variety of professions, and not one woman stated her willingness to waive the benefit of this right. He contends that a husband also remains responsible to pay for his wife’s medical needs, no matter how steep the cost, based either on his obligation to provide for her needs or on his requirement to redeem her from captivity. He argues, accordingly, that it is profoundly unjust for a husband to shoulder very significant financial responsibilities and yet not retain ownership of the marital assets (notwithstanding the exceptions discussed previously). Rav Ariel does grant, though, that since most women earn a significant salary or have the potential to do so,20<i class="footnote">A couple should consider that Rav Hershel Schachter and Rav Mordechai Willig urge mothers to avoid working outside the home during child-rearing years, if possible. </i> women enter marriages today with less financial dependence and more of a sense of mutuality. He also acknowledges that this attitude is legitimate and recognized by Halachah in a host of areas.
  Obligations of Wife to Husband
  The Shulchan Aruch (E.H. 80) states that as a complement to the husband’s obligations to his wife, a wife has certain obligations to her husband. These include washing his hands and feet, serving him wine, and sewing clothes for the family. Rav Ariel states unequivocally that these specific obligations no longer apply. Halachah mandates that every couple, unless otherwise stipulated, enters a marriage with the intention to act in accordance with commonly accepted community practices. Hence, since the <i>minhag hamedinah</i> is that wives no longer perform these services on behalf of their husbands, husbands have no right to expect their wives to do so.
  Interestingly, Rav Ariel argues that if a woman works outside the home, she is not obligated to cook for the family (despite the fact that the Shulchan Aruch E.H. 80:6 lists this as an obligation), since commercially prepared food can be purchased and subsequently warmed in a microwave oven. This last point appears to be highly debatable, as some families cannot afford (see <i>Shulchan Aruch ibid</i>.) to purchase prepared food on a routine basis. In addition, prepared food is often far less healthy than food prepared at home.
  Moreover, it seems that even in Orthodox families in which the wife works a demanding job, she very often is the one who prepares the food. Thus, the <i>minhag hamedinah</i> still appears to be that working wives cook for their families. It seems that the same applies to issues concerning child care and household chores.
  A Wife’s Control of Family Assets
  It does seem clear, however, that Rav Ariel is correct in his assertion that the <i>minhag hamedinah</i> is that husbands and wives in a healthy relationship make joint decisions about significant monetary issues. Rav Ariel argues that this holds true even if title to marital assets is vested with the husband, since the <i>minhag hamedinah</i> is that couples share equal access to the family’s financial assets.
  Therefore, unlike the times of the Gemara when only husbands made decisions regarding <i>tzedakah </i>allocations (Shulchan Aruch Y.D. 248:4), Rav Ariel rules that today, neither spouse is permitted to donate significant sums without the other, in accordance with the current <i>minhag hamedinah</i>. This would appear to apply to purchases as well.
  Another ramification is in the area of tort liability. In the time of the Gemara, one had difficulty recovering damages from a married woman, since she had no readily available assets from which to collect (<i>Bava Kama </i>87a). However, Rav Ariel argues that today things are different:
  …because it is unreasonable to say that a wife can draw from her account to pay for a variety of needs without any objection from her husband, but when she is obligated to compensate for financial loss that she caused to others, her husband can object. Therefore, it appears that even though the Talmudic principle that ‘What a wife earns belongs to the husband’ still applies in our times, this is insufficient reason to excuse her from indemnifying one to whom she caused loss. As far as this matter is concerned, we relate to her as if she has assets of her own.
  Other halachic authorities do not seem to concur with this view. For example, Rav Yaakov Blau (<i>Pitchei Choshen</i> 8:8:75, published in 1996) presents the classic Halachah regarding this matter without noting any difference in our times. Similarly, Rav Blau (ad. loc. 8:73) presents as normative the classic rules forbidding a wife to donate money to <i>tzedakah</i> without her husband’s consent.
  Perhaps one can reconcile the apparent dispute between Rav Blau and Rav Ariel by distinguishing between different segments of the Orthodox community. Rav Blau’s approach might fit certain communities wherein couples might be presumed to operate based on the classic Talmudic model of the husband-wife financial relationship. Rav Ariel’s approach, on the other hand, seems more appropriate for other communities in which couples seem to function based on a model different from the classic one. Different communities might have differing <i>minhagei hamedinah</i>. In addition, Rav Blau might rule otherwise in a case in which the wife is listed as a joint owner in the family’s bank account and/or securities accounts.
  The change in financial relationships between spouses might impact other areas of Halachah. One issue that may depend on this point is the propriety of the wife appointing the family Rav to sell the <i>chametz</i> on behalf of the family without the husband’s consent or vice versa. Another ramification could be whether the wife can write a <i>prozbul</i>21<i class="footnote">This document allows for the collection of a loan even after the conclusion of the s<i>hemittah</i> year.</i> on her husband’s behalf.22<i class="footnote">Avi Levinson notes that these issues also may depend on the dispute between the Ketzot Hachoshen (243:8) and the <i>Teshuvot Chatam Sofer</i> (E.H. 1:11) regarding whether a person may remove something from another’s control if it is beneficial for the latter not to own the item.</i>
  Ritual Matters
  The Shulchan Aruch (O. C. 529:2) frames the Torah’s obligation to rejoice on <i>Yom Tov</i> as follows:
  One must rejoice and be in a good mood during <i>Yom Tov</i>. He, his wife, his children and all those who are part of his family [must be in a joyous mood]. How does he facilitate their rejoicing? Children are given parched grain and nuts, and for women, one should purchase clothes and jewelry according to his means.
  <i>Rishonim</i> debate the nature of the obligation of women to rejoice on <i>Yom Tov</i>. The Rambam (<i>Hilchot Chagigah</i> 1:1) rules that the wife has an independent obligation to rejoice, and the husband merely facilitates her fulfillment of the <i>mitzvah</i>. Since the husband controls the family finances, he allocates the money for the clothes and jewelry. The Ra’avad (commenting on the Rambam ad. loc.) believes that the wife has no independent <i>mitzvah</i> to rejoice on <i>Yom Tov</i>; rather, the Torah obligates the husband to make her happy on these days. The <i>Sha’agat Aryeh</i> (66) and Mishnah Berurah (529:15) rule in accordance with the Rambam.
  Rav Ariel raises the question of whether the mechanics of this <i>mitzvah</i> have changed in our times now that spouses share control of the family’s funds. He begins by focusing on the Rambam’s opinion. The Rambam believes that essentially the wife is obligated in this <i>mitzvah</i> but that only the husband can facilitate its fulfillment since he controls the finances. Since, however, contemporary wives control finances equally with their husbands, a wife should be obligated to fulfill the <i>mitzvah</i> of rejoicing on <i>Yom Tov</i> independently. Rav Ariel recommends that the best approach to maintaining marital harmony23<i class="footnote">If it is not assumed that the husband has sole control over the family’s finances, he should not make a unilateral financial decision that will affect the wife (by changing the amount of money available for other needs). </i> is for a couple to plan its <i>Yom Tov</i> budget in such a way that they agree on the amount of money that will be allocated for the purchase of clothes and jewelry for the wife.
  Conclusion – <i>Bittul Chametz</i>
  We opened this chapter with the question of whether wives today should perform <i>bittul chametz</i> along with their husbands. Traditionally, there was no need for her to do so, since all the marital assets including the home and its <i>chametz</i> belonged to the husband.
  In our times, however, many women should be concerned with the prohibition to own <i>chametz</i>. Contemporary wives own their <i>chametz </i>either because of Rav Dichovsky’s approach (or a variant thereof) or due to the fact that wives in most cases are listed as joint owners of the marital home. I have heard that in some homes today, husbands and wives recite <i>bittul chametz</i> together, while in others only the husband performs the <i>bittul</i>, as was practiced in preceding generations. In such a case, the husband acts as the wife’s agent in nullifying the <i>chametz</i>.
  We will close with a vitally important assertion made by Rav Ariel. Despite the change of financial control and decision-making in our times, a basic distinction between the roles of husband and wife remain in full effect. The primary responsibility to earn a livelihood for the family still rests upon the husband, and the primary responsibility for child-rearing and homemaking still rests upon the wife. The complementary yet not identical obligations of husband and wife typify the special character of the Jewish home.
  
  Wartime Gittin
  
  Since the time that the Torah was given, <i>poskim</i> have exerted great effort to avoid Jewish women becoming <i>agunot</i>.1<i class="footnote">Literally “anchored women,” this term refers to women who wish to remarry but may not do so according to Halachah. In <i>Gray Matter 1</i>, the first several chapters (pp. 3-59) address the problem of <i>agunot</i> who can not remarry because their husbands cruelly withhold <i>gittin</i>. The present chapter deals with a different kind of <i>agunot</i>: women who may not remarry because their husbands have disappeared and might still be alive. In <i>Gray Matter 2</i>, there is an extensive discussion (pp. 114-138) of how rabbinic courts handled the <i>agunot</i> from the World Trade Center tragedy in 2001. </i> A classic example is the practice (Shabbat 56b and Ketubot 9b) of anyone who went to war with King David’s army to write a <i>get</i> to his wife to avoid her becoming an <i>agunah</i> in case he disappeared in battle. Rashi (Ketubot 9b s.v. <i>Get Keritut</i>) believes that such a <i>get</i> was given conditionally, whereas Rabbeinu Tam (cited in <i>Tosafot Ketubot</i> 9b s.v. <i>Kol Hayotzei</i>) argues that such <i>gittin</i> were given unconditionally. The Rambam (<i>Teshuvot Harambam</i> 439 in the Blau edition) clarifies that the expression “King David’s army” refers to any army that is led by a righteous, God-fearing Jew, and not specifically to the army led by King David.2<i class="footnote">We see from the Rambam that responsible Jewish leadership in any age should take steps to ensure that soldiers’ wives do not become <i>agunot</i>.</i>
  In this chapter, we shall discuss five variations on how such <i>gittin</i> were produced during the wars of the twentieth century, beginning with the Russo-Japanese War (1904-1905), continuing with World War I (1914-1918) and World War II (1939-1945), and concluding with the Israeli War of Independence (1948) and the Six Day War (1967). We will note the advantages and disadvantages of each of the five approaches, discuss the possible applications of the outlined methodologies to contemporary non-war situations, and call for the renewal of the practice of soldiers authorizing such <i>gittin</i> before entering combat.
  A Conventional <i>Get</i> – Rabbeinu Tam and Rabbeinu Yechiel of Paris
  Rav Yosef Eliyahu Henkin (<i>Teshuvot Ivra</i> 80) and Rav Shlomo Yosef Zevin (<i>L’or Hahalachah</i> p. 67) note that the preferred method to avoid wartime <i>agunot</i> is for a married soldier to divorce his wife with a conventional <i>get</i> before he leaves for war. The advantage of solving the problem in this manner is that it is a straightforward halachic procedure.3<i class="footnote">Halachically valid conditions are complex and must meet specific criteria in order to be valid. See Shulchan Aruch (E.H. 143-148) for the many detailed regulations that apply to conditional <i>gittin</i>. </i> Indeed, Rabbeinu Yechiel of Paris (cited in the <i>Mordechai</i>,<i> Gittin</i> 423) instituted the practice that if a <i>get</i> is administered when a childless husband is deathly ill in order for the wife to avoid <i>chalitzah</i>,4<i class="footnote"><i>Chalitzah</i> is the ceremony (outlined in Devarim 25:7-10) in which the brother of a man who died childless officially declines to marry the deceased’s widow, thereby permitting her to remarry.</i> the <i>get</i> should not be given on condition that the husband dies (so that the couple will remain married if he recovers). Instead, the couple should conduct a standard <i>get</i> and solemnly promise5<i class="footnote">This involves both parties accepting, on pain of excommunication, the obligation to remarry if the husband recovers. In addition, a significant financial penalty would be imposed upon a recalcitrant party.</i> to remarry should the husband recover.6<i class="footnote">I recall a case in the 1990s in which a husband was undergoing very risky surgery and wished to give his wife a <i>get</i> so that she would not remain an <i>agunah</i> if the surgery rendered him incapacitated and incompetent. Rav Peretz Steinberg, a noted <i>dayan</i> from Queens, New York, conducted a conventional <i>get</i>. Similarly, Rav Yonah Reiss reports that when the Beth Din of America deals with husbands suffering from an early stage of Alzheimer’s disease, a conventional <i>get</i> is conducted.</i> Indeed, the Maharsha (in his concluding comment to <i>Masechet Gittin</i>) cites the aforementioned view of Rabbeinu Tam that wartime <i>gittin</i> were conducted unconditionally as proof that all <i>gittin</i> should be executed in this way.
  The Rama (E.H. 155:9) rules in accordance with Rabbeinu Yechiel of Paris. The <i>Aruch Hashulchan</i> (E.H. <i>Seder Haget Hatemidi</i> 1; see also E.H. 147:11) likewise notes that we do not administer conditional <i>gittin</i> in our times and that a Rav should refuse to administer a <i>get</i> if the husband insists on attaching a condition.7<i class="footnote">In fact, while observing the Jerusalem Rabbinical Court in 1993, I watched a husband (who happened to be a rabbi) stubbornly insist that the <i>get</i> between him and his wife be conducted conditionally. He argued that the Talmud was replete with discussions of <i>gittin</i> conducted conditionally. One of the <i>dayanim </i>(rabinnic judges), Rav Zalman Nechemia Goldberg, told the man, “You are a <i>talmid chacham </i>(Torah scholar). You have heard of Rabbeinu Yechiel of Paris, yes?” The husband replied in the affirmative. Rav Goldberg continued, “Rabbeinu Yechiel of Paris decreed that we do not conduct conditional <i>gittin</i>,” which ended the discussion.</i>
  There are some obvious disadvantages to conducting <i>gittin</i> unconditionally. First, couples may find it too discomforting. Moreover, there is no absolute guarantee of remarriage, since violation of the solemn promise to remarry does not invalidate the <i>get</i> according to most authorities (see <i>Aruch Hashulchan</i> E.H. 145:30).8<i class="footnote">See, though, <i>Teshuvot Mishkenot Yaakov</i> (E.H. 34), who rules that the <i>get </i>is void if the promise is not kept.</i> Furthermore, it might demoralize soldiers at a time when courage is needed most. Finally, and perhaps most important, this approach is unsuitable for a <i>kohen</i>, since a <i>kohen</i> is forbidden to marry a divorcee, even his former wife. Thus, despite the advantages of unconditional <i>gittin</i>, conditional <i>gittin</i> were often conducted in wartime.
  Conditional Gittin – <i>Teshuvot Divrei Malkiel</i> and Rav Chaim Ozer Grodzinsky
  Many soldiers insisted that a wartime <i>get</i> be given to their wives which would take effect only if they become classified as missing in action. The condition was often formulated as stating that the <i>get</i> takes effect retroactively if he does not return within two years of its execution. The disadvantage of conducting a <i>get</i> in this manner is that it involves the risk of improper execution. Moreover, the Shulchan Aruch (E.H. 147:1) rules in accordance with the view of the Rambam (<i>Hilchot Geirushin</i> 8:3) that conditions not be mentioned during the writing of the <i>get</i>. A condition should be mentioned only at the time of the <i>get</i>’s delivery.
  In wartime situations, the scribes and witnesses constantly were busy with soldiers executing conditional <i>gittin</i> and were very much aware that a condition would be mentioned at the time of the delivery of the <i>get</i> from husband to wife. Many <i>poskim</i> considered this to constitute a very serious problem9<i class="footnote">Since the scribe and witnesses in reality were writing and signing the <i>get</i> conditionally, even though the condition was not formally stated beforehand, the <i>get</i>’s validity is questionable. </i> and therefore sought to convince husbands to execute unconditional <i>gittin</i>. The Maharsham (<i>Teshuvot Maharsham </i>3:7) and other <i>poskim</i> presented arguments that the <i>gittin</i> were valid even in such circumstances.10<i class="footnote">For further discussion of this issue, see Rav Shlomo Yosef Zevin’s <i>Le’or Hahalchah</i> pp. 76-77.</i>
  To compensate for this problem, most of the methodologies advocated by the <i>Teshuvot Divrei Malkiel</i> (4:156) for use by soldiers who fought during the Russo-Japanese war of 1905 involved the husband appointing a <i>sofer</i> to write a <i>get</i>, witnesses to sign it, and an agent to deliver it to the wife. The husband would authorize the agent to stipulate conditions at the time of delivery, giving the <i>sofer</i> no knowledge of any such conditions so as not to encounter the problem associated with such knowledge. The condition stipulated would be that the <i>get</i> takes retroactive effect if the husband does not return from war. Indeed, Rav Chaim Ozer Grodzinsky (in a letter printed in <i>Teshuvot Heichal Yitzchak</i> E.H. 2:36) notes that the standard procedure used by the Rabbis of Vilna for soldiers going to fight in the very early stages of World War II was the conditional <i>get</i>. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 4:111) also advocates use of a conditional <i>get</i>.11<i class="footnote">Rav Moshe, though, adds an additional step, as we shall discuss below.</i>
  A problem that arose with conditional wartime <i>gittin</i> was the situations in which a <i>kohen</i> was not able to return before the stipulated time. In one such case that was presented to the Netziv (<i>Teshuvot Meishiv Davar</i> 3:51), a <i>kohen</i> stipulated that his <i>get</i> take effect if he did not return to a specific town within two years. Hostilities ceased by then, but the army did not permit him to travel to that town within the allotted two years. The husband desperately sought to return home so as to avoid the <i>get</i> taking effect and his wife being rendered forbidden to him forever. Fortunately, the Netziv ruled that the <i>get</i> was rendered invalid because the wife waived the stipulation that was made for her benefit.12<i class="footnote">On the other hand, Rav Avraham Bornstein (<i>Teshuvot Avnei Neizer</i> E.H. 200) validated a <i>get</i> in a similar situation. The case involved a <i>kohen</i> who fought in the Russian army during the Russo-Japanese War and was unable to return within the stipulated two years because he was being held in Japan as a prisoner of war. The <i>Avnei Neizer</i> ruled that the <i>get</i> was valid despite the <i>kohen</i>’s written request to his wife to appear before the <i>beit din</i> and invalidate the conditional <i>get</i> he left for her. Sadly, the couple was forbidden to reunite after his return.</i> To avoid such scenarios, the <i>Teshuvot Divrei Malkiel</i> formulated the stipulation as stating that the <i>get</i> would take effect only after the wife presented the <i>dayan</i> at the <i>beit din</i> with a minimal amount of money. In this manner, the <i>get</i> would not take effect if the wife did not want it to.
  Writing the <i>Get</i> after the War – Rav David Singer of Pilzno, Galicia
  In the fall of 1914, as Jewish young men were being drafted into the armies of World War I, Rav David Singer of Pilzno, Galicia suggested an alternative to soldiers giving their wives conditional <i>gittin</i>. He wrote (as is recorded in <i>Teshuvot Minchat Elazar </i>3:6813<i class="footnote">A reproduced copy of the flier that Rav Singer produced was given to me by his son, Rav Yosef Singer of New York.</i>) that soldiers could appear before a competent <i>beit din</i> and appoint a scribe to write a <i>get</i>, witnesses to sign it, and an agent to deliver it. The <i>beit din</i> would record this event but would write and deliver the <i>get</i> only if the husband did not return from war and his death could not be ascertained.
  The advantage of conducting a <i>get</i> in this manner, writes Rav Singer, is that it is simpler to execute than a conditional <i>get</i>. It is easier on the couple as well, as it avoids the discomfort of the husband handing a <i>get</i> to his beloved wife. This, in turn, motivates soldiers who might otherwise not do so to give a wartime <i>get</i> to avoid a potential <i>agunah</i> situation. Moreover, it facilitates conducting large numbers of wartime <i>gittin</i> for the thousands of soldiers who are being rushed to battle. Appointments of scribes, witnesses, and agents take a fraction of the time that it takes to execute a full <i>get</i>. Furthermore, it eases the toll on morale, as there is a more remote connection between the soldier and the <i>get</i>. If a full <i>get</i> would be performed, it would suggest the disturbing possibility that the husband might die or disappear. Finally, this method is in harmony with Rabbeinu Yechiel of Paris’s edict to avoid conditional <i>gittin</i> as much as possible.14<i class="footnote">The husband does not stipulate any conditions in the execution of the <i>get</i>, for it is understood that the <i>beit din</i> will not allow the scribe, witnesses, and agent to execute the <i>get</i> until it is necessary to do so. This is not considered a conditional <i>get </i>- see <i>Ba’eir Heiteiv</i> (E.H. 147:1).</i>
  Rav Singer’s proposal was endorsed by two renowned <i>poskim</i> of the time, Rav Meir Arik and Rav Yosef Engel, as appears on the poster produced by Rav Singer. The <i>Teshuvot Divrei Malkiel</i> (4:156) also approves the use of Rav Singer’s method if the husband has children, although he does not prefer this method due to concern that one of the people appointed to execute the <i>get </i>will not be available to do so.15<i class="footnote">The <i>Teshuvot Divrei Malkiel</i> advocates the use of Rav Singer’s method only if there is concern that the couple might not remarry if the <i>get </i>is delivered immediately. </i>
  This proposal, however, is not without its disadvantages. It does not address the problem of <i>chalitzah</i>. Accordingly, if the husband is dead or missing, having authorized execution of a <i>get</i> would not obviate the wife’s obligation to undergo <i>chalitzah</i>.16<i class="footnote">Rav Shlomo Goren (<i>Teshuvot Meishiv Milchamah</i> 3:62) records that there were widows who experienced difficulties regarding <i>chalitzah</i> (due to brothers who lived outside the country or who were minors and thus ineligible to perform <i>chalitzah</i>) in the wake of both the Israeli War of Independence and the Yom Kippur War. </i> Unlike the first two options that we outlined, Rav Singer’s solution does not take effect immediately (or retroactively). Instead, it is executed only after the husband is assumed to be dead, at which point the <i>get</i> does not avert the need for <i>chalitzah</i> (Pitchei Teshuvah E.H. 141:70).17<i class="footnote">The <i>get</i> is executed and delivered only if there is insufficient evidence of the husband’s death to permit the wife to remarry. See, though, Pitchei Teshuvah (E.H. 141:72), who presents opinions that a <i>get</i> should not be delivered if the husband is assumed to be dead.</i>
  In addition, since it does not operate retroactively, such a <i>get</i> is not effective in a case of the husband losing his mental faculties in war, since Halachah requires that the husband be of sound mind both at the time of appointing the scribe, witnesses, and agent as well as at the time of the delivery of the <i>get</i> (Shulchan Aruch E.H. 121).18<i class="footnote">The <i>Teshuvot Minchat Elazar</i> (3:68) addresses the question of how we can write a <i>get</i> on behalf of the husband and not be concerned with the possibility that the missing husband became mentally incompetent and incapable of having a <i>get</i> executed on his behalf.</i>
  Finally, Rav Singer does not address the possibility of the scribe, witnesses, or agent moving overseas or dying in the interim. Subsequent variations of Rav Singer’s proposal, such as that of Rav Herzog (<i>Teshuvot Heichal Yitzchak</i> E.H. 2:41), offer the option of appointing alternate scribes, witnesses, and agents in case any of the people appointed to execute the <i>get</i> are unavailable to do so.
  World War II
  <i>Poskim</i> were posed with two great challenges in preparing wartime <i>gittin</i> during World War Two.19<i class="footnote">The Jewish people were blessed with three great <i>poskim</i> who invested much time and energy in executing these <i>gittin</i>: Rav Yechezkel Abramsky in London, Rav Yosef Eliyahu Henkin in New York, and Rav Yitzchak Herzog in Jerusalem. In fact, the Israeli Chief Rabbinate’s archives contain more than two thousand documents, signed by married Jewish residents of Eretz Yisrael who joined the British army to fight the Nazis, authorizing a scribe, witnesses, and an agent to execute a <i>get</i> in case a soldier is declared missing(<i>Techumin</i> 27:420).</i> First, the great number of Jewish soldiers required the <i>poskim</i> to offer options of executing <i>gittin</i> in a most efficient manner. The <i>Encyclopedia Judaica</i> (11:1550) states that more than half a million Jews served in the United States army, over sixty thousand in the British army, and another thirty five thousand Jewish residents of <i>Eretz Yisrael</i> volunteered in the British army. In addition, many of the soldiers had limited commitment to Torah observance, which added to the <i>poskim</i>’s burden to make the issuance of such <i>gittin</i> easy and expedient. Thus, the <i>poskim</i> used the option presented by <i>Teshuvot Divrei Malkiel</i> (4:156) of appointing a scribe and witnesses even not in the presence of the scribe and witnesses.
  Appointing a scribe and witnesses in such a manner is highly controversial.20<i class="footnote">For a review of this controversy, see my article regarding the propriety of executing a <i>get </i>by video teleconference (<i>Techumin</i> 14:272-276 and available at www.koltorah.org).</i> Nonetheless, there were circumstances in which soldiers were located very far from a <i>beit din</i>. In such cases, Rav Abramsky (<i>Hapardeis</i>, <i>Tishrei</i> 5701-1940), Rav Henkin (<i>Teshuvot Ivra</i> 80), and Rav Herzog (ad. loc.) all utilized this option and composed documents authorizing the writing and delivery of a <i>get</i>, which soldiers could effectuate by reading aloud and signing before a competent <i>beit din</i>.
  The <i>Chazon Ish</i> (E.H. 85), however, vigorously protested the appointment of a scribe in such a manner. He writes as an alternative that a soldier stationed far from a <i>beit din</i> should be instructed to write a minimally valid <i>get</i> as a supplement to appointing a scribe to write a conventional <i>get</i> on his behalf. Most authorities, however, did not agree with the <i>Chazon Ish</i>’s approach, and it appears that his suggestion never was implemented.21<i class="footnote">The <i>Chazon Ish</i>’s proposal is not currently used even in cases in which a husband is located far from a <i>beit din</i>. The reason appears to be that implementing this system would cause pandemonium in <i>get</i> administration, as the <i>Chazon Ish</i> himself indicates. A pillar of <i>get</i> administration is that a <i>get</i> may be executed only under the supervision of a highly trained and recognized rabbinical authority. Executing a <i>get</i> in the manner suggested by the <i>Chazon Ish</i> leaves uneducated Jews with the impression that a <i>get</i> may be conducted even in the absence of such supervision and that one may even deviate from the venerated text of the <i>get</i>. </i>
  Furloughs
  The second major hurdle faced by <i>poskim</i> during World War II was that since methods of transportation had improved, soldiers were given furloughs during which they would visit their families for a week or more.22<i class="footnote">The <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> E.H. 2:58) grapples with a situation in which a soldier who had divorced his wife with an unconditional get returned home on furlough. The husband returned to the army (without issuing a second get) and eventually became missing in action. The Chatam Sofer permitted the wife to remarry, asserting that the couple did not intend to remarry during the furlough, as they were under the mistaken impression that their original marriage was still in effect (when, in fact, it had been dissolved by the first get).</i> This posed an enormous problem, since if a husband and wife are secluded (<i>mityacheid</i>) after the scribe, witnesses, and agent are appointed, the appointments are rendered invalid (Shulchan Aruch E.H. 149:7; see the Beit Shmuel and Vilna Gaon thereupon). Rav Henkin (ad. loc.) writes that this problem was taken exceedingly seriously by the American <i>poskim</i>, to the extent that they considered the possibility of not encouraging wartime <i>gittin</i>. In fact, Rav Chaim Ozer Grodzinsky (in a letter printed in <i>Teshuvot Heichal Yitzchak</i> E.H. 2:36) writes that the practice in Vilna was to have Jewish soldiers who returned from furloughs issue appointments of the scribe, witnesses, and agent a second time before returning to the army.
  The <i>poskim</i> sought to solve this problem in various manners. Rav Abramsky referred to the <i>Re’eim</i> (cited in the <i>Kenesset Hagedolah</i> 148:3 and <i>Ba’eir Heiteiv</i> E.H. 148:2), who essentially states that the concern of seclusion with one’s wife canceling authorizations to execute a <i>get </i>does not apply to a situation in which the appointments were issued with the intention of preventing the wife from becoming an <i>agunah</i>. Rav Herzog (<i>Teshuvot Heichal Yitzchak</i> E.H. 2:41) added a clause to the appointments in which the soldier declares that even if he returns home and is secluded with his wife, he does not cancel the appointments of the scribe, witnesses, and agent. Rav Henkin sought to send documents with soldiers so that they could reissue appointments of the scribe, witnesses, and agent before a <i>beit din</i> upon returning to the army after furlough.
  Israel’s War of Independence
  Dramatically lower numbers of married soldiers in the Israeli War of Independence signed authorizations to write <i>gittin</i> to avoid women becoming <i>agunot</i>.23<i class="footnote">Rav Herzog (<i>Teshuvot Heichal Yitzchak </i>E.H. 1:2), in his introduction to his rulings regarding the <i>agunot </i>of the missing defenders of Kfar Etzion in the War of Independence, writes that the Chief Rabbinate made great efforts to ensure that every soldier signed <i>get</i>-authorization documents (as was done during World War II) but that in most cases such authorizations were not signed due to factors within the Israeli military. Rav Herzog therefore writes, “And we are vindicated from Hashem and from Israel.”</i> In that war, the Israel Defense Forces (IDF) issued orders for soldiers to sign <i>get</i> authorizations to avoid <i>agunot</i>. However, the Chief Rabbi of the Israel Defense Forces, Rav Shlomo Goren (<i>Teshuvot Meishiv Milchamah</i> 3 p. 60-61), records that commanders in the fledgling IDF vigorously opposed the signing of such documents, arguing that the toll on the morale of the soldiers was too great to justify their widespread usage. In addition, soldiers refused to issue such orders due to concern that the government would not support their widows in case of death, as it would claim that the couple divorced. Rav Goren notes that the <i>get </i>authorizations would have been signed by soldiers only if they were ordered to do so as a military command with serious punishments for those who did not comply. Rav Goren believes that such compulsion would have invalidated the <i>gittin</i>, since a <i>get</i> issued under coercion is invalid (Shulchan Aruch E.H. 134:7-8).24<i class="footnote">For a more thorough discussion of the parameters of this rule, see <i>Gray Matter 1</i> pp. 3-7.</i> Rav Goren records that he presented this concern to a special meeting of the Council of the Chief Rabbinate headed by Rav Herzog and his Sephardic counterpart, Rav Ben Zion Uzziel, and the council concurred with Rav Goren’s ruling. Rav Shlomo Yosef Zevin (<i>L’or Hahalachah</i> p. 77), however, notes that such <i>gittin</i> would appear to be valid, since Halachah mandates a husband to issue a <i>get</i> under such circumstances and may be coerced to do so (see <i>Teshuvot Harosh</i> 43:13 and Shulchan Aruch E.H. 154:9).25<i class="footnote">The Shulchan Aruch mandates that a <i>beit din</i> coerce a husband to give a get in a case where he is compelled to leave his place of residence due to safety concerns.</i>. He cites the <i>Teshuvot Maharsham</i> (3:7) and the <i>Teshuvot Oneg Yom Tov </i>as support for his approach.26<i class="footnote">Rav Zevin notes, though, that <i>Teshuvot Oneg Yom Tov</i> did not authorize coercion if the couple married after the husband already was drafted into the army, since the wife entered the marriage accepting that he would be going out to war (based on Rama E.H. 154:1 and Beit Shmuel 154:2). </i>
  Nonetheless, the IDF did not compel soldiers to sign <i>get</i> authorizations, following the ruling of the Chief Rabbinate.27<i class="footnote">Rav Goren describes the extreme lengths he went to in order to help the <i>agunot </i>of the Israeli War of Independence. He writes that he obtained special permits (facilitated by the ceasefire commission) from the enemy states to enter enemy territory to painstakingly inspect the battlefields (such as Latrun, Gush Etzion, and Jenin) and interview enemy soldiers and Arab shepherds and thereby piece together the evidence to permit the <i>agunot </i>to remarry. Rav Goren states that it took years for sufficient evidence to be amassed in order to resolve the plight of the <i>agunot</i> (as well as to bury the bodies of the soldiers left in the battlefield behind enemy lines). </i> Today, the IDF certainly does not compel soldiers to sign such documents, and Rav David Eisen, a chaplain in the Israel Defense Forces, informs me that this topic is not part of the training course of the IDF rabbinate. He also told me that before he went into combat in the Second Lebanon War of 2006, the topic of authorizing a <i>get</i> was not broached at all. A new reason not to sign such documents is the reduced risk of a woman being rendered an <i>agunah</i>, as technological breakthroughs such as DNA identification28<i class="footnote">See <i>Gray Matter 2</i> pp. 122-123 and our later chapter about the admissibility of DNA evidence in <i>beit din</i> for an elucidation of the debate regarding how much credence is given to DNA evidence in the context of <i>agunot</i>.</i> and satellite surveillance greatly enhance the IDF’s ability to monitor the whereabouts and possible death of its soldiers. We should note that the risk unfortunately has not entirely been eliminated. A tragic example is captured Israeli aviator Ron Arad, missing (as of this writing) since 1986. His wife, unfortunately, remains an <i>agunah</i> at the present time.
  Rav Eisen informs me that the official policy of the IDF rabbinate for many years has been not to encourage signing such authorizations due to concern for morale. Rav Eisen, though, informs me that quite a few rabbis in the IDF rabbinate seek to change this policy, as they believe that there are ways to conduct such authorizations without undermining morale. They suggest that such authorizations be done immediately before battle at the same time that soldiers sign for special life insurance coverage. Indeed, Rav J. David Bleich (<i>Contemporary Halakhic Problems I</i>:154) criticizes the IDF for not conducting such <i>get</i> authorizations due to concern for morale.
  The Six Day War – Rav Waldenberg and Rav Feinstein
  Although enthusiasm for the signing of authorizations to write a <i>get </i>diminished, individuals continued to authorize the writing and delivery of <i>gittin</i> in specific circumstances. For example, a soldier came to Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 11:90) at the Jerusalem <i>beit din</i> in the weeks before the Six Day War to execute a <i>get </i>before he left for a dangerous mission in enemy territory. He insisted that his wife not be aware of this authorization in order not to unduly alarm her. The appointments of scribe, witnesses, and agent could not occur immediately before he left on the mission, since he might be summoned to duty at a moment’s notice.
  The only manner in which the news of the authorization could be withheld from the wife was for the husband to return home until he was summoned to service and continue living a normal married life. Rav Waldenberg was faced with the quandary of whether he could permit the authorization under such circumstances. In the end, he did permit the soldier to make the authorization, despite the fact that the <i>beit din</i> knew that he would return to his wife before leaving for his mission. Rav Waldenberg based his ruling on the aforementioned lenient approach of the <i>Re’eim</i> and Rav Abramsky.
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 4:111), in a relatively brief responsum written in 1967, mere weeks before the beginning of the Six-Day War and during the Vietnam War, presented a new variation of how to conduct a wartime <i>get</i>. Offering a combination of the approaches previously outlined, his protocol involved the husband appearing before a competent <i>beit din</i> right before leaving for the army and handing a conditional <i>get </i>to his wife that would take effect in case he died or was considered missing. Rav Moshe adds, though, that the husband should also appoint anyone who sees his signature to serve as a scribe, witness, or agent to deliver an additional <i>get</i> to his wife in case the <i>get</i> he handed her became invalidated. This apparently authorizes the <i>beit din</i> to order the execution of another <i>get</i> in case the husband returns on furlough and thereby potentially invalidates the first <i>get</i>.29<i class="footnote">It seems that Rav Moshe’s logic is that in case the first <i>get</i> is possibly invalidated during a furlough, another <i>get</i> can be written, and in case the replacement <i>get</i> is not valid (as per the aforementioned objections of the <i>Chazon Ish</i>), the original <i>get</i> might remain valid despite the husband’s seclusion with his wife during the furlough.It is interesting to note that Rav Moshe does not record the name of the person to whom he addressed this <i>teshuvah</i>. It is not clear whether Rav Moshe was directing Israeli <i>poskim</i> preparing for the Six Day War or the American <i>poskim</i> who were dealing with soldiers leaving for service in Vietnam.</i>
  Conclusion
  We have seen the great lengths to which <i>poskim</i> of old and of the twentieth century went to avoid women becoming <i>agunot</i> as a result of wars. Although such <i>gittin</i> are uncommon today, they are not unheard of30<i class="footnote">Rav Yonah Reiss reports that the Beth Din of America occasionally has executed appointments of scribes, witnesses, and agents to perform<i> gittin </i>for husbands leaving for the war in Iraq.</i> and might be advisable in certain non-military circumstances, such as if a husband is undergoing risky surgery. In such a case, a competent <i>beit din</i> should be consulted to determine which of the options outlined should be used to administer the <i>get</i> and to oversee its execution.
  Moreover, rabbis today should reinstitute the policy for all married soldiers to authorize a <i>get</i> before leaving for combat. After all, this involves simply reinstating a practice that was common even as late as the first half of the twentieth century. Otherwise, the suffering of women such as the wife of Ron Arad is compounded by their inability to renew their lives and remarry.
  
  Blood Tests and DNA in Beit Din
  
  
  
  
  
  Beginning in the twentieth century, <i>poskim</i> have been faced with the issue of whether new forms of evidence, such as blood tests and DNA, are admissible in <i>beit din</i>. These tests have enormous potential to resolve heretofore irresolvable questions in a positive direction, but they also can reveal information that could have catastrophic ramifications. We shall begin with a discussion of blood tests.
  Blood Tests to Determine Paternal Identity – The Majority Opinion
  Since the early twentieth century, <i>poskim</i> have been faced with the question of whether blood tests may be accepted in <i>beit din</i> to help determine paternal identity. In many countries, blood tests were commonly used as evidence that a husband was not the father of his wife’s child. Most <i>poskim</i> ruled that such evidence is inadmissible in <i>beit din</i>. It seems that Rav Ben-Zion Uzziel (<i>Sha’arei Uzziel</i> 2:40:1:18) was the first to address this matter. He rules that blood tests are not admissible evidence based on the celebrated Gemara (Niddah 30a) that states that there are three partners in the creation of a person: Hashem, the mother, and the father. The Gemara goes on to explain what each partner contributes to the creation of the child. The mother, states the Gemara, contributes the red material from which blood is created. This passage is even applied by some authorities in a halachic context (see Rama Y.D. 263:2). Rav Uzziel concludes from this that <i>Chazal</i> believe that blood type is determined exclusively by the mother. Thus, argues Rav Uzziel, the modern scientific belief that blood type is influenced by both the mother and the father contradicts <i>Chazal</i>. Rav Uzziel claims that Halachah is determined by <i>Chazal</i>’s belief and not by scientific assertion, and he accordingly rules that blood tests are not admissible evidence regarding paternal identity.
  Most <i>poskim</i> agree with Rav Uzziel’s ruling. These authorities include many of the great <i>dayanim</i> of the twentieth century, such as Dayan Ehrenberg (<i>Teshuvot Devar Yehoshua</i> 3 E.H. 5), Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 13:104), and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 10 E.H. 12 and 13).1<i class="footnote">Rav Shalom Messas (<i>Teshuvot Shemesh Umagein</i> 3 E.H. 17-18) also utilizes this argument in combination with other factors.</i>
  Rav Waldenberg adds that scientific approaches are very much subject to change, and that which is accepted today is often rejected soon after. This skeptical attitude towards scientific conclusions is commonplace in rabbinic thought throughout the ages, as Rav Waldenberg notes.2<i class="footnote">For a summary of the halachic literature regarding the admissibility of scientific evidence for halachic matters, especially the laws of <i>niddah</i>, see <i>Nishmat Avraham</i> (2:82-85). See our later chapter regarding the interface of archaeology and Halachah for more discussion of this question.</i> Therefore, Rav Waldenberg echoes the ruling of many <i>dayanim</i> that we accept the divinely inspired assertions of <i>Chazal</i>, of which we are certain, and not scientific assertions, which are subject to revision.
  Blood Tests to Determine Paternal Identity – The Minority Opinion
  Not all <i>poskim</i> agree with this approach. Rav Yitzchak Herzog argues (in a letter published in <i>Assia</i> 35) that <i>poskim</i> who adopt this approach are “sticking their heads in the sand” by ignoring scientific facts. Rav Shlomo Zalman Auerbach (cited in <i>Nishmat Avraham</i> 3:30-31) notes that the Gemara need not necessarily be interpreted as teaching that blood type is determined exclusively by the mother. It could be understood as teaching that the mother merely provides the catalyst for the production of blood, leaving open the possibility of paternal influence on blood type even according to <i>Chazal</i>.3<i class="footnote">Dr. Dov Frimer (<i>Shenaton Hamishpat Ha’ivri</i> 5:230 note ב54) records that Rav Shlomo Zalman told him that the Gemara may even be describing metaphysical connections between parents and children, not natural, biological connections.</i>
  Rav Shlomo Dichovsky (in a <i>teshuvah</i> printed in <i>Teshuvot Bikkurei Asher </i>6) points out that the Rambam (<i>Moreh Nevuchim</i> 3:14) and the <i>Tashbeitz </i>(1:165) write that the many medical assertions that appear in the Gemara are not derived from divine sources but rather from the medical knowledge of the time. According to this approach, the accepted scientific evidence in each generation should constitute admissible evidence in a <i>beit din</i> hearing. Rav Dichovsky notes, though, that the Rivash (<i>Teshuvot Harivash</i> 447) disagrees with the Rambam and <i>Tashbeitz</i> and argues that the medical assertions that appear in the Gemara are in fact divinely inspired just like the rest of the Talmud.4<i class="footnote">For a summary of the debate regarding the nature of <i>Chazal</i>’s medical claims, see Rav Yaakov Neuberger’s article in the <i>Torah U-Madda Journal</i> (3:82-89).</i>
  Rav Sa’adiah Gaon’s Blood Test
  It seems that another major consideration lurks beneath the ruling of the majority opinion that rejects blood tests for use in <i>beit din</i>. A fascinating case involving Rav Sa’adiah Gaon is recorded in the <i>Sefer Chassidim</i> (232). A wealthy man once traveled a long distance with his pregnant wife and his slave. The man died, whereupon the slave presented himself as the wealthy man’s son and was awarded the deceased’s fortune by the local authorities. The wife then gave birth, and when the child came of age, he went to Rav Sa’adiah Gaon to complain about what the slave had done. Rav Sa’adiah Gaon exhumed the father’s body and removed one of the bones. He took blood samples from both the son and the slave and placed the exhumed bone into each sample. The bone absorbed the son’s blood but not the slave’s blood, thereby proving, in Rav Saadiah’s opinion, the identity of the true son.
  The <i>Eliyah Rabbah</i> (568) cites this story but poses a question based on an incident recorded in the Gemara (Bava Batra 58a). A couple had ten children, but on his deathbed, the husband said that only one of the sons was truly his child. In order to determine who should inherit the estate, Rav Bena’ah devised an interesting plan. He instructed the boys to hit their father’s grave. All of the boys hit the grave except for one, to whom Rav Bena’ah then awarded the estate. The Rashbam (<i>ibid</i>. s.v. <i>Amar Lehu</i>) explains that this decision was an example of “<i>shuda d’dayni</i>” (loosely translated as a Solomonic decision),5<i class="footnote">For further explanation of this concept, see <i>Tosafot Kiddushin</i> 74a s.v. <i>Shuda D’dayni</i>.</i> as the true son would not have the audacity to hit his father’s grave.
  The <i>Eliyah Rabbah</i> wonders why Rav Bena’ah had to employ <i>shuda d’dayni</i> if he could have used Rav Sa’adiah Gaon’s blood test to determine the true son. The Rashash (commenting on the Rashbam <i>ibid</i>.) asserts that Rav Bena’ah did not want to administer this test since it would reveal that nine of the boys were <i>mamzeirim</i> (illegitimate). Rav Bena’ah’s test, on the other hand, revealed only that one of the boys was a more refined person than his siblings but did not necessarily prove the other siblings’ illegitimacy. The Rashash bases his explanation on the Rambam and <i>Bartenura</i>’s assertion (<i>Eiduyot</i> 8:7 s.v <i>V’kirvah</i>) that <i>mamzeirut</i> should not be publicized.
  An explanation of the Rambam and <i>Bartenura</i>’s approach is that a problem of <i>mamzeirut</i> exists only when one has knowledge of it. At the same time, though, one has no obligation to reveal such knowledge. It seems that the Ran (Kiddushin 30a-b in the pages of the Rif s.v. <i>Tannu Rabbanan</i>, based on Kiddushin 71a) and the Rama (E.H. 2:5; see the comments to this Rama summarized in the <i>Otzar Haposkim ibid</i>.) subscribe to this explanation. Rav Elchanan Wasserman (in an essay printed in the Torah journal <i>Degel HaTorah</i> 5681-5682 pp. 63-64) supports and rules in accordance with this approach, and Rav Hershel Schachter6<i class="footnote">Rav Schachter cites Rav Elchanan’s ruling in <i>B’ikvei Hatzon</i> p. 58. </i> once issued a ruling based on it. Rav Aharon Lichtenstein told me that the practice of many community rabbis in pre-war Europe was to leave a locale when they heard that someone they knew to be a <i>mamzeir</i> was about to marry. Indeed, Rav Shmuel Tokayer told me that Rav Moshe Feinstein advised him to conduct himself accordingly in a similar situation that he encountered when he served as a Rav in the 1960s. The Gemara (ad. loc.) refers to this lenient approach to <i>mamzeirut</i> as a <i>tzedakah</i> (charity) that Hashem does for <i>Am Yisrael</i>.
  It appears that a motivation behind most <i>dayanim</i>’s refusal to admit blood tests as evidence of fatherhood in <i>beit din</i> is that they choose, as Rav Bena’ah did, not to administer a test that could potentially reveal that people are <i>mamzeirim</i>.
  
  
  
  We shall now turn our attention to the issue of whether DNA evidence is admissible in <i>beit din</i>. We shall first present the rulings issued before the World Trade Center terrorist attacks, and then proceed to discuss the propriety of admitting DNA evidence in order to identify the remains of a husband missing from those attacks.
  Rav Shlomo Dichovsky and the Ashdod Beit Din
  In 1982, Rav Shlomo Dichovsky sat as a member of the Ashdod district Israeli Rabbinate <i>beit din</i>. After the <i>beit din</i> had presided over a couple’s divorce agreement and <i>get</i>, the husband opened a file challenging his heretofore presumed fatherhood of his wife’s two children. After ordering the couple to perform a blood test (in accordance with Rav Dichovsky’s opinion that such tests are admissible evidence), the <i>beit din</i> was informed that DNA tests (accurate up to 99.6% at that time) were now being administered to determine paternal identity. The DNA test revealed that the husband was the father of only one of his wife’s two children. When the results were read in <i>beit din</i> in the presence of both parties, the wife still insisted that her husband was the father of both of their children, denying ever having had an affair during the marriage. The question was whether the <i>beit din</i> should regard the results of the DNA test as evidence that the husband was not the father or whether it still should assume that the husband was the father of both children.
  Rav Dichovsky writes (in a <i>teshuvah</i> printed in <i>Teshuvot Bikkurei Asher </i>6) that this question presents a conflict between two mechanisms of resolving doubt regarding paternal identity when a wife is suspected of adultery. On one hand, the Gemara (Sotah 27a) states that in such a case we assume that the husband is the father since “<i>Rov be’ilot achar haba’al</i>,” (a wife will have most of her relations with her husband). On the other hand, the DNA tests are almost always accurate. Rav Dichovsky ruled that since we are faced in this case with a conflict of two presumptions, both of which are true in a majority of situations, the doubt remains unresolved. Therefore, Rav Dichovsky opined that the <i>beit din</i> cannot obligate the husband to pay child support for the child in question since a <i>beit din</i> cannot coerce someone to pay in a case of doubt (<i>Bava Kama</i> 46a).
  On the other hand, Rav Dichovsky stated that the child is not a <i>mamzeir</i> because the level of certainty necessary to presume that the child is a <i>mamzeir</i> against the assumption of <i>rov be’ilot achar haba’al</i> is extremely high. In fact, the Gemara (Yevamot 80b, codified by the Shulchan Aruch E.H. 4:14) states that if a husband travels overseas and his wife gives birth to a child twelve months after his departure, we assume that the husband is the father and that the wife was pregnant for twelve months! Similarly, reasons Rav Dichovsky, since (in 1982) DNA tests were only 99.6% accurate, there is insufficient evidence to pronounce the child a <i>mamzeir</i>.
  The other two <i>dayanim</i> on the court disagreed with Rav Dichovsky and ruled that the DNA evidence was not admissible in this case. They ruled that the husband must pay child support despite the DNA evidence, arguing that the DNA test cannot prove an assertion that contradicts the principle of <i>rov be’ilot achar haba’al </i>and the <i>chazakah </i>(status quo assumption) in existence from the child’s birth until after the administration of the <i>get</i> that the husband was the father of the child. The husband appealed the ruling to the Rabbinic Court of Appeals, which at the time included Rav Avraham Shapira, which sustained the ruling of the Ashdod <i>beit din</i>.
  Rav Ovadia Yosef and the Israeli Rabbinic Court of Appeals
  In 1986, the Israeli Rabbinate’s Rabbinic Court of Appeals, consisting of Rav Ovadia Yosef, Rav Yosef Kafich, and Rav Yitzchak Kulitz, was presented with an appeal of a ruling by a district Israeli Rabbinate <i>beit din</i> regarding a fascinating case. A young man and woman lived together without the benefit of marriage. Some time after the couple separated, the woman was discovered to be pregnant, and she subsequently gave birth to a child. The young man claimed to be the father, while the young woman vigorously denied this claim. The young man demanded that a DNA test be administered to prove the validity of his claim, to which the wife refused to consent. The district <i>beit din</i> ruled that if the woman persisted in her refusal, it would interpret this as an admission that the young man was indeed the father. This ruling implied that DNA evidence is acceptable in <i>beit din</i>, since the <i>beit din</i> essentially accepted the man’s argument that a DNA test should be administered in order to determine paternity.
  The Rabbinic Court of Appeals rejected the ruling of the district <i>beit din. </i>Rav Ovadia (<i>Teshuvot Yabia Omer</i> 10 E.H. 13) explains that just as the consensus view among <i>dayanim</i> is to consider blood tests inadmissible evidence in <i>beit din</i>, so too the consensus should reject DNA tests as proof in <i>beit din</i>. He bases his ruling on a number of passages in the Gemara (e.g. Yevamot 99a) that speak of a child whose father is known to be one of two possible men. The Gemara treats this doubt as irresolvable. Rav Ovadia argues that the fact that the Gemara does not mention either blood tests or DNA tests as a possible means to resolve the doubt indicates that these two methods are not acceptable means of determining paternal identity.
  Although this argument from omission seems a bit far-fetched, the Gemara sometimes presents theoretical possibilities, such as transportation on a “flying camel” (Makkot 5a), in order to bring out certain principles. In our case, the Gemara does not present a theoretical means of resolving the doubt, leaving no precedent for resolving questions of paternal identity by means of DNA testing.
  Rav Yosef Shalom Eliashiv
  Rav Eliashiv (<i>Kovetz Teshuvot</i> 1:135) was asked to adjudicate a case related to DNA testing. A wife had claimed when she was pregnant that her husband was not the father of the unborn child. Years later, the father wished to know whether he should conduct genetic tests to determine if the wife was correct. Rav Eliashiv rules unequivocally, “Since many years have passed, and a <i>chazakah</i> has been established that he is the father of the child, one has no right to cast aspersions on the legitimacy of the child by engaging in testing.”
  As a precedent, Rav Eliashiv cites the Rashash (cited in the previous chapter), who explains that the <i>Amora’im</i> (scholars of the Gemara) did not engage in testing to determine paternal identity at the risk of revealing that someone who was heretofore presumed to be legitimate (<i>b’chezkat kashrut</i>) was in fact a <i>mamzeir</i>. Rav Mendel Senderovic (<i>Teshuvot Atzei Besamim</i> 16) observes that Rav Eliashiv does not rule that DNA evidence is inadmissible evidence in <i>beit din</i>. In fact, it seems he does deem it admissible evidence, since he wanted to avoid having such evidence presented in this particular case.
  Rav Shlomo Zalman Auerbach
  Prior to the World Trade Center attacks, the strongest ruling in support of the admissibility of DNA evidence was issued by Rav Shlomo Zalman Auerbach. His ruling (cited in <i>Nishmat Avraham</i> 3:37) concerned an event that occurred in an Israeli hospital in 1977. Two babies were confused after birth, and all investigations could not conclusively determine the identity of the respective parents of each baby. The hospital administration suggested undergoing DNA testing to reach a final conclusion. Dr. Abraham S. Abraham consulted Rav Shlomo Zalman Auerbach and Rav Eliezer Waldenberg, both of whom permitted utilizing the results as a consideration in the final determination of the identity of the parents of each child.
  This is quite a significant ruling, since Rav Waldenberg (as we noted in our previous chapter) is a staunch opponent of admitting blood tests as evidence in a <i>beit din</i> hearing.1<i class="footnote">Ariel Herzog notes that there is a fundamental distinction between the case that Rav Dichovsky adjudicated, in which, according to the majority opinion, the DNA test contradicted the Talmudic principles of <i>rov be’ilot achar haba’al</i> and <i>chazakah</i>, and the case Rav Waldenberg dealt with regarding the hospital, in which there was no such conflict. Moreover, <i>Chazal</i> seem to have relaxed the rules of admissibility of evidence in the context of identifying a child, as the testimony of the midwife is accepted (Kiddushin 74a; see the Ran, Kiddushin 31a in the pages of the Rif s.v. <i>Ne’emenet</i>). Thus, it is not clear how Rav Waldenberg and the majority opinion in Rav Dichovsky’s case would rule in the other’s case. For a discussion of trusting contemporary hospital identification of babies, see <i>Teshuvot Moznei Tzedek</i> (E.H. 2:2).</i> In addition, Dr. Abraham writes that Rav Shlomo Zalman later wrote to him, “If this [DNA] test is well-known and accepted throughout the world as reliable as a result of numerous and unambiguous tests, it is reasonable to say that the results of this test constitute admissible evidence by halachic standards.”
  The World Trade Center
  Having seen the different opinions regarding DNA evidence, we will now discuss how <i>poskim </i>applied their rulings in the aftermath of the World Trade Center terrorist attacks. In some cases, DNA evidence was the only possible way to identify the remains of a missing husband.2<i class="footnote">The application of DNA evidence to the World Trade center <i>agunot</i> is discussed briefly in <i>Gray Matter 2 </i>pp. 121-123.</i> We will focus on Rav Mendel Senderovic’s discussion (<i>Teshuvot Atzei Besamim</i> 16) of this issue, which presents excellent arguments to support the unequivocal ruling of Rav Zalman Nechemia Goldberg that DNA is admissible evidence to identify the remains of a missing husband.
  DNA Evidence vs. Blood Tests
  Rav Senderovic notes that only blood tests seem to have a passage in the Gemara that precludes their use in determining paternal identity. The same Gemara notes that the father contributes the material that produces the bones and fingernails of the child. Thus, argues Rav Senderovic, a DNA sample may be taken from bones and fingernails in order to determine paternal identity. The Haifa <i>beit din </i>(cited in <i>Assia</i> 35:47) also drew such a distinction. Although there is no precedent in the Gemara that is analogous to DNA identification, there are no clear counter-indications that preclude its use.
  In addition, the skepticism that Rav Waldenberg expressed in regards to scientific evidence seems to be irrelevant to DNA identification of a missing husband’s remains. DNA identification is based on the assertion that no one (save for identical twins) has the same DNA. Rav Senderovic notes that this has been empirically proven regarding more than one million individuals. Accordingly, skepticism about the accuracy of DNA testing appears misplaced in light of the overwhelming evidence supporting its accuracy.
  Can We Devise <i>Simanim</i>?
  Rav Senderovic notes that some have argued that the absence of a Talmudic precedent for DNA testing automatically precludes its use as a new means of identifying individuals. A proof for this might be derived from the <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> O.C. 207, cited by the Mishnah Berurah 648:65),3<i class="footnote">The <i>Chatam Sofer</i>, though, appears to have changed his mind about this issue; see <i>Teshuvot Chatam Sofer</i> O.C. 183, also cited by the Mishnah Berurah 648:65.</i> who rules that we may not rely on the <i>simanim</i> (means of identification) devised by many <i>Acharonim</i> (cited in the <i>Mishnah Berurah ibid</i>.) to determine whether or not an <i>etrog</i> is a hybrid (<i>murkav</i>). The <i>Chatam Sofer</i> explains that the problem with these <i>simanim </i>(such as bumpy skin and an indented stem) is that they do not appear in the Gemara. One could claim that DNA evidence may not be relied upon since it also lacks a Talmudic source.
  One could respond to this argument in a number of ways. Rav Senderovic notes that the Gemara (Chullin 64a) discusses <i>simanim </i>(such as having the yolk on the inside and the albumin on the outside) to identify eggs as the product of a kosher bird. According to Rashi (ad. loc. s.v. <i>Hachi Garsinan</i>), the Gemara rejects the use of these <i>simanim</i> because we do not have a tradition from Sinai that such <i>simanim</i> constitute legitimate evidence of kashrut. Rabbeinu Tam (cited in <i>Tosafot</i> ad. loc. s.v. <i>Simanin</i>), on the other hand, explains that <i>simanim</i> do not constitute adequate evidence because of the counterevidence of the eggs of a raven (a non-kosher bird), which have the <i>simanim</i> of the eggs of a kosher bird. The Ramban (ad. loc. s.v. <i>Hah</i>) combines the reasons of Rashi and Rabbeinu Tam, explaining that we do not rely on <i>simanim</i> for eggs because of both the counterevidence of the raven’s eggs and the lack of a tradition from Sinai.
  Rav Senderovic argues that since after years of testing, scientists have not found two individuals (other than identical twins) with the same DNA, we may rely on DNA as a <i>siman</i> to identify the remains of a missing husband. Since there is no counterevidence to question its accuracy, Rabbeinu Tam and the Ramban would approve of DNA evidence. Rav Senderovic notes that Rashi seems to imply that this is a specific exclusion that applies only to eggs and is not a principle that applies to all halachic realms. Accordingly, all <i>Rishonim</i> would admit DNA evidence as <i>simanim</i>.
  Most important, Rav Zalman Nechemia Goldberg and Rav Senderovic note, is the precedent of <i>poskim</i> relying on fingerprints (see <i>Otzar Haposkim</i> 17, <i>Rishum Simanim</i> 62) to identify the remains of a missing husband. DNA evidence is entirely analogous to finger prints, argue Rav Zalman Nechemia and Rav Senderovic, so DNA evidence, like fingerprints, should be reliable evidence to identify the remains of a missing husband.
  Random Sampling
  Rav Senderovic also notes that some have questioned the efficacy of DNA on the grounds that not every human being alive has been tested to determine if everyone has different DNA. They argue that science has proven only that the over one million people tested do not have the same DNA. This, in their view, does not constitute adequate evidence. Rav Zalman Nechemia responds that when <i>Chazal</i> made determinations, such as that a majority of animals do not have a blemish that would render an animal a <i>treifah</i> (thus permitting us to drink the milk of animals that have not been examined for <i>treifot</i>), they reached their conclusions based on random sampling. Rav Zalman Nechemia finds it counterintuitive to maintain that <i>Chazal</i> traveled throughout the world and inspected every animal to reach this determination.
  Rav Senderovic suggests that one could counter that perhaps the assertions made by <i>Chazal</i> are derived from divine sources and therefore constitute impeccable evidence despite the fact that they did not check every animal in the world. Rav Senderovic rejects this line of thought, noting the Gemara (Chullin 47a) that records an incident in which Rav Ashi thought to classify an animal as a <i>treifah</i> because of what he perceived as an abnormality. However, Rav Huna Mar bar Avya told him that all of these “<i>boryata</i>”4<i class="footnote">Rashi (ad. loc. s.v. <i>Boryata</i>) explains this to mean either rural or healthy.</i> animals have this abnormality and that the butchers are very familiar with it and even have a name for it. The Gemara gives Rav Huna Mar bar Avya the last word, indicating that Rav Ashi accepted his critique. Rav Senderovic derives from this passage that <i>Chazal</i> made at least some determinations based on their experience with animals from the area and did not conduct an investigation of every animal in the world in order to reach their conclusions.
  Combination of Inadequate Simanim
  Rav Senderovic notes that some have argued that DNA testing constitutes inadmissible evidence because its conclusions are based on the combination of thousands of sub-factors that individually constitute inadequate evidence. They cite the ruling of the Rama (E.H. 17:24; see <i>Gray Matter 2</i> pp. 120-121) that many inadequate <i>simanim</i> cannot be combined to constitute one adequate <i>siman</i>. Rav Senderovic responds that one views the thousands of sub-factors as one whole unit, which undoubtedly constitutes adequate evidence.5<i class="footnote">A <i>siman</i> that is unique to fewer than one out of a thousand people constitutes an adequate <i>siman</i> to identify the remains of a missing husband, as noted by the Beit Shmuel (17:74). The possibility of two people having the same DNA ranges from one in ten billion to one in one quintillion.</i>
  As a precedent, Rav Senderovic cites a ruling from the <i>Terumat Hadeshen</i> (239, the source of the aforementioned ruling of the Rama) that one may combine the fact that a missing husband’s remains show that he was blind in an eye and that he had a scar extending from that same eye to his mouth to constitute an adequate <i>siman</i> (also see Pitchei Teshuvah E.H. 17:107). Similarly, the <i>Mishpatim Yesharim</i> (1:39) rules that we accept a tooth that is cracked, protrudes, and has a black spot at its edge as an adequate <i>siman</i>. Just as we view the eye and the tooth as constituting one unit that has more than one feature rather than examining each identifying mark individually, so too we view DNA conclusions as constituting one <i>siman</i> even though they are created through a combination of many sub-factors. Moreover, it is even more compelling to view a person’s DNA as constituting one individual unit of evidence given that the sub-sections of DNA are inherently connected to each other. As support for his contention, Rav Senderovic once again cites the precedent of <i>poskim</i> relying on fingerprints as an adequate <i>siman</i>, as fingerprints prove identity by combining the strands from the entire fingerprint.
  In line with the rulings of Rav Shlomo Zalman Auerbach, Rav Zalman Nechemia Goldberg, and Rav Mendel Senderovic, the Beth Din of America utilized DNA evidence as an important (but not exclusive) consideration in identifying the remains of husbands who were missing as a result of the World Trade Center terrorist attacks.6<i class="footnote">Rav Shmuel Wosner and Rav Nissim Karelitz (<i>Techumin</i> 21:123) both consider DNA to constitute a semi-adequate <i>siman</i>. They also distinguish between DNA evidence taken from the person in question (e.g. his comb or brush), to which they give slightly more credence, and DNA evidence based on comparison to a relative, despite the fact that the possibility of error in the latter form still is less than one in ten billion. Rav Senderovic is astonished that Rav Wosner and Rav Karelitz do not offer a reason for not accepting DNA evidence as a full-fledged <i>siman</i>, as it seems to satisfy the criteria for such categorization. Rav Senderovic also finds the distinction between DNA evidence taken from the victim and DNA evidence based on a comparison to a relative to be shocking, as there seems to be no basis for such a distinction, and Rav Wosner and Rav Karelitz offer no explanation.</i>
  <i>Mamzeirut</i> and DNA Evidence<i></i>
  A potential problem with allowing DNA evidence is that it opens a proverbial Pandora’s box, since once <i>batei din</i> admit DNA as evidence in some cases, they seemingly must accept DNA as evidence of parentage (against the 1986 ruling of the Rabbinic Court of Appeals cited earlier). This potentially opens a floodgate of <i>mamzeirut</i> cases in which DNA evidence indicates that a husband is not the father of his wife’s child.
  We should note that Rav Shlomo Dichovsky’s claim (cited above) that DNA testing is insufficient to determine <i>mamzeirut</i> since it is only 99.6% accurate is no longer valid, since the chance of error in a properly administered DNA test ranges from less than one in ten billion to less than one in one quintillion.7<i class="footnote">See, though, the rulings of Rav Ovadia Yosef and Rav Shalom Messas issued in 1996 and printed in <i>Teshuvot Yabia Omer</i> 10 E.H. 8.</i>
  Rav Mordechai Willig (<i>Kol Zvi</i> 4:12) grapples with this problem and at first argues that we should permit an <i>agunah</i> to remarry based on DNA identification despite concern that it will cause others to be declared <i>mamzeirim</i>. He notes the celebrated Mishnah (<i>Ohalot</i> 7:6) that states, “<i>Ein dochin nefesh mipnei nefesh</i>” (we do not sacrifice one soul in order to save another).8<i class="footnote">This is a poetic way of saying that we do not choose one person’s gain at the expense of another’s loss.</i>
  Rav Willig presents another potential distinction that may solve this problem. In a wide variety of halachic areas, we do not attach any significance to that which is not visible to the naked eye. The <i>Chochmat Adam</i> (<i>Binat Adam</i> 38:49), Rav Shlomo Kluger (<i>Teshuvot Tuv Ta’am Vada’at</i> 2 <i>Kuntress Acharon</i> 53), the <i>Aruch Hashulchan</i> (Y.D. 84:36), and Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 6:47) rule that we need not be concerned about consuming bugs that can be seen only with the aid of a magnifying glass. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 3:120:5) rules that we need not determine that <i>tefillin</i> are square using a microscope.9<i class="footnote">The Gemara (Menachot 35a) states that we have a tradition from Sinai that <i>tefillin</i> must be square.</i> The <i>Tiferet Yisrael</i> (Avodah Zarah 2:3 in <i>Boaz</i>) rules that a fish whose scales are visible only when viewed with a magnifying glass is not kosher. He similarly rules that an animal with a hole in its lung that can be seen only with a magnifying glass is not a <i>treifah</i>. The <i>Teshuvot Even Yekarah</i> (2:33) rules that a <i>Tanach</i> whose tiny letters are visible only if viewed with a magnifying glass is not considered “written.” Rav Yosef Messas (<i>Teshuvot Mayim Chaim</i> 1:259) permits using an <i>etrog</i> whose blemishes can be detected only when examined with a magnifying glass. As such, we need not be concerned with the microscopic strands of DNA that suggest that a child is a <i>mamzeir</i>.
  Accordingly, one may ask how we can rely on DNA evidence if DNA strands are not visible to the naked eye. Rav Willig suggests that a distinction can be drawn between evidence to prove the death of a missing husband (<i>eidut ishah</i>) and other areas of Halachah. Classical halachic sources relax the rules of evidence in many aspects regarding <i>agunot</i>, such as accepting hearsay evidence and the testimony of those who are normally considered invalid witnesses (such as women).10<i class="footnote">See the sources and explanation presented in <i>Gray Matter 2</i> p. 118.</i> Contemporary authorities continue this tradition by accepting the testimony of non-observant Jews who were raised as such (see <i>Gray Matter 2</i> p. 119) in the context of <i>agunot</i>. Similarly, we can argue that even though DNA evidence does not constitute evidence in other areas of Halachah, it does carry weight in the context of permitting an <i>agunah</i> to remarry.
  Rav Mordechai Willig also suggests that DNA evidence would merely prove another man to be the father, not necessarily that the child is a <i>mamzeir</i>, since it is possible that the child was conceived through artificial insemination. According to Rav Yaakov Breisch (<i>Teshuvot Chelkat Yaakov</i> 1:24), Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 1:10), and Rav Yosef Dov Soloveitchik (cited in <i>Nefesh Harav</i> p. 255), a child conceived via artificial insemination is not a <i>mamzeir</i> even if the sperm donor is not the husband.11<i class="footnote">Many <i>poskim</i>, however, disagree; see <i>Teshuvot Minchat Yitzchak</i> 4:5, <i>Teshuvot Minchat Shlomo</i> 3:98, and the ruling of the Satmar Rebbe that appears in <i>Hama’or</i> 5724.</i> As we noted in our previous essay, if a husband was overseas and his wife gave birth to a child up to twelve months after he left, we do not consider the child to be a <i>mamzeir</i>. Thus, we see that Halachah will rely even on remote possibilities (in combination with the Gemara’s assertion that <i>rov be’ilot achar haba’al</i>) in order to avoid problems of <i>mamzeirut</i>.
  A problem with this latter approach is that it has never (to my knowledge) been suggested by any of the other great <i>poskim</i> of the modern period who have been forced to grapple with a large number of potential <i>mamzeirut</i> situations. It also was not mentioned as a viable option in the responsa regarding the admissibility of blood tests as evidence of parentage. We should clarify that it would seem that even according to Rav Willig’s suggested approach, one cannot solve every case of <i>mamzeirut</i> by assuming that the child was conceived by artificial insemination. It seems that this line of reasoning is appropriate only in combination with the assumption of <i>rov be’ilot achar haba’al</i>.
  Conclusion
  While blood tests can be ignored at no “cost,” since there is (for the most part) no halachic benefit to relying on them, DNA evidence can benefit many people. Not surprisingly, we find contemporary <i>poskim</i> relying either fully or partially on DNA evidence, especially to identify the remains of a missing husband. At the same time, most <i>poskim</i> manage to avoid allowing DNA evidence to prove <i>mamzeirut</i>.
  
  Kashrut
  
  Chalav Yisrael
  
  The Mishnah (Avodah Zarah 2:6) records that <i>Chazal</i> forbade the consumption of milk from a kosher animal that was milked by a non-Jew1<i class="footnote">For a discussion of whether a non-observant Jew is included in this category, see <i>Teshuvot Igrot Moshe</i> (Y.D. 1:46), the views of Rav Yosef Shalom Eliashiv and Rav Shmuel Wosner cited in <i>Bin’tiv Hechalav</i> (p. 32 and p. 35), and <i>Encyclopedia Talmudit</i> (15:174).</i> without Jewish supervision (<i>chalav akum</i>, as opposed to <i>chalav yisrael</i>, milk that was supervised). The Gemara explains that this was enacted out of concern that the non-Jew may have mixed non-kosher milk with the kosher milk. In recent times, the limited likelihood of this risk has sparked much debate within the Orthodox community as to how applicable this restriction is today. We shall present both sides of the question, starting with the view of Rav Yosef Dov Soloveitchik.
  It is vitally important to note that we will address the issue as it pertains to the current realities in the United States. In other countries, however, it may be forbidden to consume unsupervised milk according to all authorities.
  Rav Soloveitchik’s Three Considerations for Leniency
  It is well known among Rav Soloveitchik’s students that when he resided in the United States, he drank packaged milk that did not have any special rabbinic supervision. Rav Menachem Genack related (in a <i>shiur</i> at Yeshiva University) that Rav Soloveitchik delineated three considerations to be lenient. First, some authorities rule leniently if there are no non-kosher animals in the herd that is being milked (<i>ein b’edro tamei</i>). Second, we may rely on the government (USDA) supervision and inspections to ensure that the milk we consume is in fact from cows. Finally, the rabbinic edict forbidding the consumption of milk from an animal that was milked by a non-Jew technically does not apply today, since the cows are milked by machines.
  <i>Ein B’edro Tamei</i>
  The <i>Rishonim</i> and <i>Acharonim</i> debate whether the prohibition against <i>chalav akum</i> applies even if the non-Jew has no non-kosher animals in his herd (see <i>Mordechai</i>, Avodah Zarah 826, <i>Teshuvot Radbaz</i> 4:1147, and <i>Semak</i> 223). Some authorities dismiss this exception entirely, while others are lenient only if no non-kosher animals are milked in an entire locale. The later <i>Acharonim</i> are divided as to how to resolve this issue. The <i>Pri Chadash</i> (Y.D. 115:6) and the <i>Chazon Ish</i> (Y.D. 41:4) rule leniently, 2<i class="footnote">See, though, our discussion of the <i>Chazon Ish</i>’s opinion that appears later in this section.</i> whereas the <i>Aruch Hashulchan</i> (Y.D. 115:5),3<i class="footnote">The <i>Aruch Hashulchan</i> (Y.D. 115:6) relates: To emphasize our point (of not following the <i>Pri Chadash</i>’s leniency), I will present what someone once shared with me with a broken heart when I served as a Rav in a certain locale. One of the prominent community members of that locale adopted the lenient approach when traveling to the country’s largest city. He always frequented [a particular inn], and he and other guests, when they would drink their hot drinks every morning, would purchase a “fatty milk” from a non-Jewish merchant whose store was located near the inn. Once, they began to wonder how this very small store got such a large supply of fatty milk, and they went to the merchant to inquire about this matter. The merchant responded that he would purchase large quantities of animal brains from the [non-kosher] butcher, grind [and mix] them together with large quantities of milk, and then cook them together. Upon hearing this, they all fell on their faces upon realizing their great sin of consuming non-kosher meat as well as forbidden mixtures of milk and meat. The community member shared this with me and cried aloud “How great are the words of our sages.”</i> the <i>Chochmat Adam</i> (67:1), and the <i>Chatam Sofer</i> (Y.D. 107, cited in the Pitchei Teshuvah Y.D. 115:3) rule strictly. The latter three authorities note that the custom among Eastern and Central European Jews was to follow the stringent opinion. The <i>Darchei Teshuvah</i> (115:6) reports that this also was the custom in <i>Eretz Yisrael</i>. The <i>Pri Chadash</i>, though, records that Amsterdam’s custom was to be lenient, and the <i>Darchei Teshuvah</i> (<i>ibid</i>.) writes the same about a number of communities.4<i class="footnote">For further sources on this hotly debated issue, see <i>Sdei Chemed</i> 8:45.</i>
  The <i>Beit Meir</i> (cited in the <i>Darchei Teshuvah</i>) argues that even according to the lenient opinion, there is virtually no locale that has no non-kosher animals, so this line of leniency is hardly ever relevant. On the other hand, the <i>Pri Chadash</i> and his supporters believe that <i>ein b’edro tamei</i> means that no non-kosher animals are milked in the area. An animal in the zoo or a pet does not appear to impinge on the applicability of this rule according to the <i>Pri Chadash</i>.
  Even if the strict ruling is adopted, the lenient opinions might still be used as a legitimate <i>snif l’hakel</i> (adjunct consideration) to a lenient ruling. One example of this usage is the responsum of Rav David Tzvi Hoffman (<i>Teshuvot Melamed L’ho’il</i> 2:33) in which he relies on the lenient opinion as one consideration to permit a sick individual, for medicinal purposes, to drink buttermilk that was not supervised. As non-kosher milk is not commercially available in the United States,5<i class="footnote">Rav Avrohom Gordimer of the Orthodox Union confirmed that non-kosher milk is not commercially available in the United States, at least not in normative shopping venues that service the masses.</i> Rav Soloveitchik applies these lenient opinions as one consideration to rule leniently.
  We must clarify, though, that these lenient opinions do not apply in Israel. Rav Zev Weitman, the Rav of the Israeli dairy giant Tnuva, reports (<i>Techumin </i>22:459) that camel milk is (regrettably) commercially available in Israel and actually is used as an ingredient in ice cream for sale in southern portions of <i>Eretz Yisrael</i>. This is one of the reasons that the Israeli Chief Rabbinate is not lenient regarding <i>chalav akum</i>.6<i class="footnote">See Rav Eliyahu Bakshi-Doron’s essay in <i>Techumin</i> (23:463-472).</i>
  Nonetheless, Rav Weitman (<i>Bin’tiv Hechalav</i> p. 40) contends that since the price of non-kosher milk is tens of times greater than that of kosher milk, we need not be concerned that the former was introduced into the latter. He argues for extending the <i>Pri Chadash</i>’s interpretation of <i>ein b’edro tamei</i> to allow <i>chalav akum</i> even where non-kosher animals are milked as long as a large price difference discourages mixing the milks. The basis for this approach is the Gemara’s assertion (Avodah Zarah 34b) that although the Mishnah (Avodah Zarah 2:4) prohibits non-Jews’ <i>muryas</i> (oil from pickled fish, which sometimes contained wine) due to concern that non-kosher wine was added, the prohibition does not apply when wine is far more expensive than pure <i>muryas</i>.
  Government Inspection
  Although the custom in most of Europe was to follow the strict view of the <i>Chatam Sofer</i>, as we cited above, the practice of most observant Jews in the United States during the early part of the twentieth century was to follow the lenient opinion. Those who followed the <i>Chatam Sofer</i> constituted the exception rather than the rule. Rav Melech Schachter related to me that knowledgable American Jews assumed that they were following the lenient approach of the <i>Pri Chadash</i>. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 1:46-48), however, presents two different arguments to defend the lenient practice.7<i class="footnote">In fact, Rav Moshe writes (<i>Teshuvot Igrot Moshe</i> Y.D. 1:46) that the custom of Ashkenazic Jews is not to follow the <i>Pri Chadash</i>. Hence, he forbids purchasing milk directly from a non-Jewish farmer whose milking process is completely unsupervised.</i> One argument is that in America, where the government supervises the milking process to ensure that only cow’s milk is being sold, even the <i>Chatam Sofer</i> would permit consuming <i>chalav akum</i>. This is because Halachah, in the context of the laws of testimony, equates clear and certain knowledge of an event with seeing an event (see Shevuot 34a). Our knowledge that the government monitors the milk in this country is the equivalent, argues Rav Moshe, of watching the milking process ourselves.
  Rav Moshe’s second argument is based on the Gemara (Avodah Zarah 39b) that states that the Jewish supervisor need not constantly watch the milking, for as long as he has easy access to view the milking, the milk is acceptable. This is because the non-Jew milking the cow is afraid (<i>mirtat</i>) to introduce non-kosher milk, lest the Jew see him. It seems clear that as long as the non-Jew is afraid to put non-kosher milk into the kosher milk, one is permitted to consume the non-Jew’s milk. Hence, Rav Moshe asserts (<i>Teshuvot Igrot Moshe</i> Y.D. 1:46), “In any case in which there is fear of government penalty, this rabbinic prohibition does not apply.”
  Many of the great twentieth-century authorities consider reliable government supervision as a factor in their rulings. These authorities include the <i>Chazon Ish</i> (Y. D. 41:4, though see below), Rav Tzvi Pesach Frank (<i>Teshuvot Har Tzvi</i> Y.D. 103, discussing powdered milk),8<i class="footnote">Rav Frank wrote his responsum in the summer of 1944, a very trying period in Eretz Yisrael. He does not specify, though, whether his ruling applies only in such a case of great need or in all cases. Additionally, Rav Frank rules leniently because powdered milk, unlike regular milk, was never included in any prohibition. He does not address the permissibility of regular milk, as that issue was not presented to him.</i> Rav Yosef Eliyahu Henkin (<i>Teshuvot Ivra</i> 43), and Rav Yaakov Kaminetzsky (<i>Emet L’yaakov Al Shulchan Aruch </i>p. 308).9<i class="footnote">Rav Kaminetzky does not explain the basis for his ruling (which he limits to cases of great need); he merely makes reference to the lenient position of the <i>Chazon Ish</i>.</i>
  A Critique of Rav Moshe’s Leniency
  Rav Moshe’s argument is somewhat debatable. The point of the <i>Chatam Sofer </i>(in rejecting the <i>Pri Chadash</i>) appears to be that even though we are certain that no non-kosher milk was introduced into the milk, a Jew still must supervise the milking process. Thus, the <i>Chatam Sofer</i> seems not to accept the argument that knowledge is equivalent to vision in the context of this Halachah. Even in the aforementioned Gemara, the Jew who is not constantly watching at least is minimally involved with the milking process, as he is seated outside the barn. In the case of government supervision, in contrast, no Jew is involved at all in supervising the milking.10<i class="footnote">Those who adopt the strict approach to the <i>chalav yisrael</i> issue discuss whether supervision by video cameras and computers suffices even according to the <i>Chatam Sofer</i>. Rav Zev Weitman (<i>Techumin</i> 22:466-468) and Rav Mordechai Gross (<i>Bin’tiv Hechalav</i> pp. 54-56) address this issue at length. In these situations, a Jew is involved in the supervision process, apparently making them more analogous to the situation described in the aforementioned Gemara than to non-Jewish government supervision. Rav Weitman reports that Rav Yosef Shalom Eliashiv and Rav Shmuel Wosner ruled (in a ruling issued to the rabbinic supervisors of the <i>mehadrin</i> division of Tnuva) that supervision of the milking process by video cameras suffices to satisfy the opinion of the <i>Chatam Sofer</i> and to categorize the milk as <i>chalav yisrael</i>.</i>
  On the other hand, the <i>Pri Chadash</i> (and, correspondingly, the <i>Chatam Sofer</i>) addresses a situation in which there is no external supervision of the milking process, and hence no <i>mirtat</i> on the part of the non-Jews milking the cows. Rather, the <i>Pri Chadash</i> relies solely on the reasoning that the likelihood that the non-Jews would be practically able to introduce non-kosher milk into their product is minute. Thus, it is debatable whether government supervision is closer to the case in the aforementioned Gemara or to that of the <i>Pri Chadash</i>.
  The <i>Chazon Ish</i> (Y.D. 41:4) associates the idea of relying on government supervision with the reasoning of the <i>Pri Chadash</i>. According to the <i>Chazon Ish</i>, then, the <i>Chatam Sofer</i> rejects relying on government supervision in this context. We must clarify, though, that the <i>Chazon Ish</i> himself is quite inclined toward the view of the <i>Pri Chadash</i>, although he does not rule explicitly in accordance with it. The <i>Chazon Ish</i>’s brother-in-law, Rav Yaakov Kanievsky, clarifies (<i>Krayna D’igrata</i> 2:123) that the <i>Chazon Ish</i> relied on the <i>Pri Chadash</i> to permit frail individuals to drink powdered milk in difficult wartime years when milk was not readily available in <i>Eretz Yisrael</i>. Thus, the <i>Chazon Ish</i> essentially accepts the view of the <i>Pri Chadash</i>, although he does so only in a case of great need.11<i class="footnote">For further discussion of the <i>Chazon Ish</i>’s view on this issue, see <i>Bin’tiv Hechalav</i> p. 31.</i>
  Many other <i>Acharonim</i> also adopt the approach that government supervision is inadequate to satisfy the view of the <i>Chatam Sofer</i>. These authorities include Rav Yaakov Breisch (<i>Teshuvot Chelkat Yaakov</i> 3:37-38), Rav Yitzchak Yaakov Weisz (<i>Teshuvot Minchat Yitzchak</i> 9:81), and Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi</i> 4:87).12<i class="footnote">Rav Wosner records a remarkable conversation he had with the <i>Chazon Ish</i> about this matter.</i>
  Moreover, Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 4:42) rules in accordance with the strict view despite the fact that the two primary advocates of the lenient view, the Radbaz and the <i>Pri Chadash</i>, are among the most authoritative Sephardic halachic authorities. Rav Ovadia bases his ruling on the Chida (<i>Shiyurei Berachah</i> 115:1), who records that the custom in <i>Eretz Yisrael</i> and its environs was to follow the strict opinion (as we quoted above from the <i>Darchei Teshuvah</i>).13<i class="footnote">The <i>Shiyurei Berachah </i>adds that if a community does not have an established practice, it should adopt the stringent position.</i> Indeed, Rav Mordechai Eliyahu writes (<i>Kol Tzofayich</i> 145) that even those who observe only the standard level of kashrut (not <i>mehadrin</i>)14<i class="footnote">The Israeli Chief Rabbinate maintains two levels of kashrut certification: basic kosher and <i>mehadrin</i>, the latter being for those who wish to abide by stricter halachic standards.</i> should scrupulously avoid relying on the lenient opinion in this matter. Even Rav Moshe Feinstein writes in his many responsa on this topic that <i>a ba’al nefesh</i> (someone who is very meticulous in his halachic observance) should follow the strict opinion on this issue, as we shall discuss.15<i class="footnote">Rav Moshe writes (<i>Teshuvot Igrot Moshe</i> Y.D. 1:47), though, that one who adopts the stricter approach because he believes that government-supervised milk is even possibly forbidden is mistaken, and does not require <i>hatarat nedarim</i> (annulment of vows) should he choose to discontinue his strict practice. Rav Hershel Schachter stated (at a convention of the Rabinical Council of America) that one who heeds Rav Moshe’s recommendation to be strict need not follow his stringency when visiting others who are not strict about <i>chalav yisrael </i>(and no <i>hatarat nedarim </i>is required). He based this argument on the <i>Dagul Meir’vavah </i>(Y.D. 114:1), who rules that one who adopts a <i>chumra </i>(stringency) does so with the implicit intention that he does not accept it in circumstances where it would be very difficult to observe. We should note, however, that this applies only if one adopts Rav Moshe’s approach that government supervised milk is essentially permitted, not if one follows those <i>poskim </i>who rule that such milk is essentially forbidden.</i>
  <i>Davar Sheb’minyan</i>
  Despite Rav Moshe Feinstein’s lenient ruling, it is well known that he encouraged people, both in writing (<i>Teshuvot Igrot Moshe</i> Y.D. 1:47) and orally, to drink only <i>chalav yisrael </i>milk.16<i class="footnote">See <i>Teshuvot Igrot Moshe </i>(Y.D. 2:35), where Rav Moshe strongly urges Yeshivot to serve only <i>chalav yisrael</i> milk despite the expense and economic difficulty involved in doing so, since “This also is part of a Jewish education - to teach that it is proper for <i>bnei torah</i> (those exceptionally dedicated to Torah life) to be strict even when there is only a mere concern for violating a prohibition, since from this they will realize how one must fear violating Torah prohibitions.” </i> The primary reason for this is the Gemara’s principle (Beitzah 5a), “<i>Davar sheb’minyan tzarich minyan acheir l’hatiro</i>,” which means, effectively, that a rabbinic edict applies even if its reason no longer applies. This point is strongly emphasized by the <i>Chatam Sofer</i> in his aforementioned responsum concerning <i>chalav yisrael</i>. Although the <i>Pri Chadash</i> argues that the decree against <i>chalav akum</i> was not a <i>davar sheb’minyan</i> (i.e. there was no formal prohibition in situations in which there was no practical concern for a mixture of non-kosher milk), the custom in most pre-war communities in Europe was not to rely on the <i>Pri Chadash</i>.
  However, Rav Soloveitchik’s third reason to rule leniently might overcome this obstacle. He argues that the edict applies only if a non-Jew milks the animal, but not if a machine milks it.17<i class="footnote">Actions performed by a machine are not directly attributed to the individual who activated the machine (except for the very first action the machine performs). See Chullin 16a, which discusses indirect <i>shechitah; Teshuvot Yechaveh Da’at</i> (1:14), which summarizes the rich debate regarding machine-baked <i>matzah</i>); and <i>Chazon Ish</i> (O.C. 6) and <i>Teshuvot Har Tzvi</i> (O.C. 1:10), who discuss machines spinning wool for <i>tzitzit</i>. </i> According to this approach, the rabbinic edict technically does not apply to the milk we currently drink even if one assumes that <i>chalav akum </i>was prohibited by <i>Chazal</i> as a full-fledged <i>davar sheb’minyan</i>.18<i class="footnote">One might then ask why wine produced by a non-Jew should be a problem today, when the wine is produced entirely by machinery without any direct contact between the producer and the product. The answer is that regarding wine, the Shulchan Aruch (Y.D. 125:2) states explicitly that if it is produced by non-Jews, it is prohibited even if they produced it indirectly and never touched it. In the Halachot of milk production, by contrast, the Shulchan Aruch includes no such proviso, leaving open the possibility that indirectly produced milk is permissible. Moreover, Rav Soloveitchik’s approach stems from the Mishnah’s formulation of the prohibition of <i>chalav akum</i> as “milk that was milked by a non-Jew,” which might imply that the enactment technically does not apply to milk that was not directly milked by a non-Jew. The prohibition to consume wine produced by a non-Jew is not formulated in this way, but rather as simply “[non-Jewish] wine.”</i>
  None of the other twentieth-century <i>poskim</i> propose Rav Soloveitchik’s argument. Perhaps they believe that since the enactment against <i>chalav akum</i> stems from concern that non-kosher milk was introduced into the product, a concern that is relevant even if the milk was produced by machine, the enactment still applies in such circumstances.
  Following Different Opinions
  Those who follow the strict opinion should certainly not regard those who rule leniently as being unobservant of kashrut laws, since they are following eminent halachic authorities such as Rav Feinstein and Rav Soloveitchik. Rav Yaakov Kaminetzky (<i>Emet L’yaakov Al Shulchan Aruch </i>p. 308) rules that those who follow the strict opinion regarding <i>chalav yisrael</i> are even permitted to eat using the dishes and utensils of those who follow the lenient view. As a precedent, he cites the ruling of the Rama (Y.D. 64:9) regarding a certain fat whose kashrut was subject to halachic dispute, with different communities following different opinions. The Rama rules that those who adopt the strict view are permitted to eat from the dishes and utensils of those who adopt the lenient view. He rules similarly (Y.D. 115:1) regarding the dispute about butter produced by a non-Jew (which we shall discuss below), regarding which there are different practices among different communities.19<i class="footnote">For an explanation of these rulings of the Rama, see <i>Gray Matter 1 </i>p. 247 note 2.</i> Rav Kaminetzky also rules that one who adopts the strict view is permitted to give non-<i>chalav yisrael</i> products to those who are lenient about this issue, and does not thereby violate the prohibition against causing others to sin.20<i class="footnote">For an explanation of this ruling, see <i>Gray Matter 1 </i>p. 171.</i>
  It is also important for one who is lenient to take care to serve only <i>chalav yisrael</i> to those who adopt the strict opinion (see Rama Y.D. 119:7).
  Other Potentially Relevant Issues
  One concern of those who rule strictly is that if <i>chalav yisrael</i> is not observed, this law will be forgotten by <i>Am Yisrael</i> (see <i>Teshuvot Chelkat Yaakov</i> 3:37). We may come to forget this Halachah and not know to apply it even when its reason is applicable, such as in countries or circumstances in which the lenient considerations are not relevant. Accordingly, those who adopt the strict position remind those who are lenient that sometimes milk can be considered non-kosher.
  In addition, Rav Zev Weitman observes (<i>Techumin</i> 22:460-463) that today, a significant number of cows throughout the world undergo a surgical procedure that renders them (and the milk they produce) <i>tereifot</i>.21<i class="footnote">The third chapter of <i>Masechet Chullin</i> outlines eighteen defects in an animal from which one could expect that the animal will die within a year, rendering it forbidden to eat due to the prohibition to eat a <i>tereifah </i>(Shemot 22:30). A perforation in an animal’s stomach is one of these eighteen defects, and a contemporary surgical procedure involves making a hole in the animal’s stomach, albeit for therapeutic purposes.</i> Rabbinic monitoring of the situation is necessary to ascertain that this procedure does not become common enough to render generic milk as non-kosher.22<i class="footnote">Rav Weitman believes that this would cause all milk to become problematic because the lenient approaches outlined above all rely on the assumption that the milk supply is uncontaminated with non-kosher milk. Since milk from <i>treifot</i> is not kosher (following the rule “<i>yotzei min hatamei tamei</i>,” “that which emerges from a non-kosher source is not kosher;” see Bechorot 5b), the original reasons that prompted <i>Chazal</i> to prohibit <i>chalav akum</i> would again apply. One could argue, though, that the enactment stems only due to concern for milk from a non-kosher animal, not milk from an animal defined as a <i>tereifah</i>.</i> The Orthodox Union (see <i>Mesorah</i> 10:62-68), though, follows the rulings of Rav Yisroel Belsky and Rav Moshe Heinemann that this currently is not a problem in the United States, but one may not assume that this is not a problem in other parts of the world without consulting a competent Rav.23<i class="footnote">See Rav Michoel Zylberman’s essay in the <i>Journal of Halacha and Contemporary Society</i> (54:93-113) for a presentation of the lenient considerations and opinions regarding the concern that most dairy cows today are <i>treifot</i>. See also Rav J. David Bleich’s essay on this topic in <i>Tradition</i> (41:1:55-70).</i>
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 1:47) writes: “Most observant Jews and also many <i>rabbanim</i> (rabbis) are lenient regarding this matter, and God forbid that one should declare that they are acting improperly.” Indeed, many of Rav Soloveitchik’s students follow their Rav’s example and adopt the lenient approach to this issue. We should note, though, that today, a much greater percentage of the observant community adopts the strict approach than when Rav Moshe wrote his <i>teshuvah</i> in 1954.
  The lenient position appears to be especially cogent given that there is no concern for violating a Torah prohibition. The Shach (Y.D. 118:8) points out that we are not concerned that the non-Jew added a large amount of non-kosher milk, because then the adulteration would be obvious, since, as the Gemara (Avodah Zarah 35b) notes, non-kosher milk looks different from kosher milk. Since the concern is only that a small amount of non-kosher milk was added, there always is a significant majority of kosher milk, and <i>min b’mino</i> (two like items, in this case the kosher and non-kosher milk)24<i class="footnote">The Pitchei Teshuvah (Y.D. 118:1) questions the reasoning of this Shach based on the difference in taste between the two types of milk, which should therefore be considered <i>min b’she’eino mino</i> (two different items). In such a case, the kosher item must be more than sixty times as plentiful as the non-kosher item in order to nullify it even on a biblical level. Nonetheless, the <i>Chazon Ish</i> (Y.D. 41:1) maintains that the prohibition against unsupervised milk cannot be on a biblical level in any case, since the chance of a mixture of non-kosher milk is so small.</i> is nullified on a biblical level as long as there is a majority of the kosher product (Shulchan Aruch Y.D. 98:2). Thus, there is no biblical-level concern, and it certainly seems reasonable to rely on the well-founded lenient opinions regarding such a rabbinic prohibition.
  The Policy of the Israeli Chief Rabbinate
  Rav Eliyahu Bakshi-Doron writes (<i>Techumin</i> 23:463) that the policy of the Israeli Chief Rabbinate is not to rely on Rav Moshe Feinstein’s leniency even for its regular (non-<i>mehadrin</i>) kashrut standards. He explains that even Rav Moshe permitted government-supervised milk only in a case of need, but that in Israel there is no need, as Israel is a land flowing with <i>chalav yisrael</i> milk. It has no pressing need to import government-supervised milk or dairy products produced by non-Jews.
  Of course, the Chief Rabbinate’s policy supports the dairy industry of <i>Medinat Yisrael</i>, thereby facilitating the fulfillment of <i>yishuv Eretz Yisrael</i>. The availability of more jobs in <i>Eretz Yisrael</i> allows more Jews to live there and brings more tax revenue to the Israeli government, which it can then use to fulfill its role of facilitating Jews living securely in <i>Eretz Yisrael</i>. Those who advocate the purchase of <i>chalav yisrael</i> milk in the United States argue, similarly, that this practice economically supports our fellow Jews. The Torah indeed advocates purchasing a product from Jews if possible.25<i class="footnote">See Rashi to Vayikra 25:14 s.v. <i>V’chi</i>, <i>Teshuvot Rama</i> (10), <i>Ahavat Chessed </i>(1:5:6-7). See Rav Doniel Neustadt’s <i>The Monthly Halachah Discussion</i> (pp. 50-51) for a summary of the parameters of this <i>mitzvah</i>.</i>
  Rav Bakshi-Doron writes that a major motivation behind the stringent ruling of the <i>Chatam Sofer</i> was distancing us socially from <i>nochrim</i>. He argues that <i>Chazal</i> enacted the prohibition of <i>chalav akum</i> not only because of kashrut concerns, but also to protect us from assimilation. He cites the <i>Aruch Hashulchan</i>’s comment (Y.D. 115:6) that <i>Chazal</i> have covert as well as overt reasons for their enactments. The covert reason for <i>chalav yisrael</i>, Rav Bakshi-Doron argues, is to prevent assimilation. Indeed, observing the strict position requires one to live in an area blessed with a heavy concentration of observant Jews where there is sufficient consumer demand for <i>chalav yisrael</i> products.
  Another reason that Rav Bakshi-Doron advances to adopt the strict approach today is the extreme complexity of contemporary food production. He is concerned that the milk producers might add non-kosher ingredients that government supervisors do not find objectionable. According to this reasoning, unsupervised milk would be forbidden today even according to the most lenient approach of the <i>Pri Chadash</i>! However, American rabbinical <i>kashrut </i>professionals do not share this concern.26<i class="footnote">Rav Avrohom Gordimer outlined the policy of the Orthodox Union in this regard:Fresh milk (unflavored, normal refrigerated milk – as opposed to long shelf-life boxed milk) in the United States has no <i>kashrus </i>concerns. The only concern is the use of non-kosher vitamins, which are <i>batel</i> (nullified) anyway, as well as the slight possibility of pasteurization on non-kosher equipment. Although the vitamins are always <i>batel</i>, the Orthodox Union will not certify milk without supervising that kosher vitamins are used. Additionally, the use of shared equipment for milk and non-kosher beverages (e.g. non-kosher grape juice blends) is not common and equipment sanitization between products on an “<i>ikkar hadin”</i> (essential Halacha) level will prevent such equipment from imparting <i>ta’am issur</i> (non-kosher taste particles) to fresh milk. All OU certified milk is made on <i>mashgiach</i>-verified kosher-dedicated equipment. The OU does not certify milk (or any products) based on these types of rationales (such as nullification and equipment sanitization), even though they may be relied upon.</i>
  Traveling Between Countries
  Halachah (see Pesachim 50a and Shulchan Aruch O.C. 468:4) requires a traveler to follow the stringencies of both the place he left and his destination. Accordingly, it would seem that visitors from Israel to the United States should maintain the stringent standard regarding <i>chalav yisrael</i>, since their practice at home is to be strict about this matter. For some reason, this does not seem to be the common practice among many Israeli travelers to America.
  Rav Yaakov Borow told me, however, that the regular kosher (non-<i>mehadrin</i>) dairy products made in Israel often include dried <i>chalav akum</i> additives.27<i class="footnote">Rav Borow informs me that there are general kashrut concerns with dried milk. For example, animal fats are sometimes dried on equipment that is also used for drying milk.</i> As such, the practice in Israel is not to be strict as far as dried milk is concerned. In addition, Rav Moshe Bleich suggests that Rav Moshe Feinstein’s lenient ruling is intended for situations in which <i>chalav yisrael</i> is not readily available. Since Israel is flowing with <i>chalav yisrael</i> milk, there is no pressing need to rely on Rav Moshe’s leniency.28<i class="footnote">Rav Borow informs me that much of the Israeli milk industry uses foreign workers to do the actual milking, and there also are some farms owned by non-Jews. Thus, the Israeli Chief Rabbinate does at times have to take measures (i.e. require supervision) to ensure that the Israeli milk supply is <i>chalav yisrael</i>. </i> Thus, it is possible that even Israelis who drink only <i>chalav yisrael</i> milk may drink non-<i>chalav yisrael</i> milk when traveling in America if <i>chalav yisrael</i> is not readily available. However, since this question remains unresolved, a resident of <i>Eretz Yisrael </i>should consult his Rav regarding whether he may drink non-<i>chalav yisrael</i> fresh milk (or products made from liquid milk) when he travels outside of Israel. A resident of <i>Eretz Yisrael </i>also should ask his Rav if he is permitted to eat products imported from outside of Israel that are made from liquid milk even if the item is ceritified kosher by a reliable North American or European <i>kashrut</i> agency.29<i class="footnote">Conversely, Rav Hershel Schachter told me it is forbidden for residents of the United States to consume products that contain gelatin made from non-kosher sources even if they bear a reliable Israeli rabbinical certification, since the practice of Jews in the United States is to follow the ruling of Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 1:37 and 2:27) and Rav Aharon Kotler (<i>Mishnat Rabi Aharon</i> 1:16-17) forbidding such gelatin. </i>
  <i>Chem’at Akum</i>
  There is much controversy about the applicability of the prohibition of <i>chalav akum</i> to processed dairy products, centering on the question of <i>chem’at akum</i> (unsupervised butter produced by non-Jews). Although the Gemara does not discuss this issue, the Rambam (<i>Hilchot Ma’achalot Asurot</i> 3:15) cites unresolved arguments among the <i>Geonim</i> about it.
  The Rambam explains the reasoning behind these two opinions. The lenient view argues that <i>Chazal</i> never banned consuming the butter of non-Jews, as we can be certain that the butter comes from a kosher animal because the milk of a non-kosher animal cannot be made into butter. The stringent view is concerned that there may remain leftover pockets of non-kosher milk that were in the product from which the butter was made.30<i class="footnote">For an enlightening analysis of the two views, see the Bei’ur Hagra (Y.D. 115:17).</i>
  This issue remains unresolved, as the Shulchan Aruch (Y.D. 115:3) notes that different communities maintain different practices. Rav Zev Weitman records (<i>Bin’tiv Hechalav</i> p. 41) that the policy of the Israeli Chief Rabbinate is to be lenient regarding <i>chem’at akum</i> for standard kashrut certifications and to be strict for <i>mehadrin</i> certifications.
  We should clarify that the lenient approach does not imply that one may eat butter that is not certified as kosher by a reliable kashrut agency. Rather, it implies that butter does not require the type of constant supervision that the <i>Chatam Sofer</i> demands for milk. The kashrut agency still must verify and monitor the product to ensure that all of its ingredients are kosher. What is not required, according to the lenient view, is supervision of the entire butter production process - occasional inspections suffice. The <i>Chochmat Adam</i> (67:9) notes that common practice is to be lenient about this issue, and Rav Mordechai Willig (1981 SOY Guide to Kashrut p. 75) similarly writes that “The custom today is to be lenient and to permit butter produced by a Gentile.” This is why butter produced by large non-Jewish companies commonly receives kashrut certification, unlike comparably produced wine and cheese.
  Powdered Milk – Rav Tzvi Pesach Frank vs. the <i>Chazon Ish</i>
  As we mentioned previously, Rav Tzvi Pesach Frank rules that it is permissible to drink powdered milk that is imported to <i>Eretz Yisrael</i> from the United States. He compares powdered milk to <i>chem’at akum</i>, applying the same logic that would permit butter to permit powdered milk. The lenient opinion regarding butter, he contends, believes that <i>Chazal</i> imposed their decree only on plain milk, not on all milk products. Once the form of the milk has changed, the decree no longer applies.
  The <i>Chazon Ish</i> (Y.D. 41:4) vehemently disagrees with Rav Frank. He completely rejects the comparison of powdered milk to butter, since the basis for leniency regarding butter is the fact that butter cannot be produced from the milk of a non-kosher animal. Powdered milk, on the other hand, can be produced from non-kosher milk as well. Hence, the <i>Chazon Ish</i> concludes that there is no distinction between fresh milk and powdered milk regarding <i>chalav yisrael</i>.31<i class="footnote">Rav Zvi Sobolofsky observed in a <i>shiur</i> that this dispute is characteristic of many halachic disputes that have emerged in the modern age concerning the status of items that have been dried to a powder. Examples include the dispute about the use of reconstituted grape juice for <i>kiddush</i> (see <i>Teshuvot Minchat Shlomo</i> 1:4 and the essay about this topic available at www.koltorah.org) and the <i>berachah</i> on Pringles, which are made from dried potatoes. Part of the question is whether we view the dried food that was reconstituted as a new entity or as the same entity that it was previously. The <i>Chazon Ish</i> seems to assume that drying an item to a powder does not create a new entity.</i>
  This dispute has never been resolved. Rav Bakshi-Doron (<i>Techumin</i> 23:464-465) records that the Israeli Chief Rabbinate historically relied upon Rav Frank’s leniency because of the shortage of <i>chalav yisrael</i> powdered milk in Israel until recent years. Currently, the Chief Rabbinate relies on Rav Frank’s leniency for its standard kashrut certifications but not for its <i>mehadrin</i> certifications. Its policy is to require any product that relies on Rav Frank’s leniency to include a disclaimer on the package stating that it contains powdered milk from <i>chalav akum</i>. Rav Bakshi-Doron explains that the Chief Rabbinate seeks thereby to discourage reliance on Rav Frank’s leniency and eventually to discontinue relying on it entirely, since powdered milk from <i>chalav yisrael</i> sources is readily available in Israel today.32<i class="footnote">Rav Borow informs me that some dairy ingredients, such as certain types of milk protein, are not made in Israel, and many companies continue to use these <i>chalav akum</i> ingredients in powdered products that receive standard kosher (non-<i>mehadrin</i>) certifications.</i>
  Rav Bakshi-Doron also notes that the kashrut status of <i>chalav akum</i> milk proteins that are transformed into powder, such as casein and whey, hinges on this dispute between the <i>Chazon Ish</i> and Rav Frank. Hence, for <i>mehadrin</i> certifications, the Chief Rabbinate insists that milk proteins be derived only from <i>chalav yisrael</i> milk.
  Compromise Opinions
  I have heard that some people in America adopt a compromise position regarding <i>chalav yisrael</i>. They insist on <i>chalav yisrael</i> for actual milk, but they rely on Rav Frank’s leniency regarding powdered milk. The appeal of this compromise is that business people can take non-<i>chalav yisrael</i> powdered milk with them on their travels to places where <i>chalav yisrael</i> is not available. In addition, milk chocolates and ice creams made from powdered milk still can be consumed.33<i class="footnote">Rav Hershel Schachter told me that as a youngster, when he would study at the Mirrer Yeshiva in Brooklyn, New York during summer vacations, the Yeshiva served regular powdered milk when <i>chalav yisrael</i> milk was unavailable.</i>
  Another compromise that some American kashrut organizations once embraced was to permit the use of <i>chalav akum</i> in the production of cheese, even though they would not certify a product containing non-<i>chalav yisrael</i> milk. Their position was based on the Rama’s ruling (Y.D. 115:2) that cheese that was made with <i>chalav akum</i> is acceptable <i>b’dieved </i>(post facto), since cheese cannot be produced from milk from a non-kosher animal. These kashrut agencies reasoned that since at worst a minimally acceptable product would be produced, they could rely on Rav Moshe’s leniency <i>l’chatchilah</i> (ideally), even though they normally would not rely on it, to permit the production of cheese from <i>chalav akum</i>. Indeed, Rav Moshe (<i>Teshuvot Igrot Moshe</i> Y.D. 3:16) rules that even <i>ba’alei nefesh</i> (those who are exceptionally scrupulous in their observance of Halachah) need not be strict about cheese made from milk that did not have supervision.34<i class="footnote">Rav David Tzvi Hoffman’s lenient approach (outlined in <i>Teshuvot Melamed L’ho’il</i> 2:36) also serves as a basis for this compromise.</i> Rav Borow told me, though, that changes in the North American cheese industry have made it more difficult to rely on giving a <i>chalav yisrael</i> certification to a product that started with non-<i>chalav yisrael</i> milk.
  Conclusion
  We have outlined the variety of stances that <i>poskim</i> adopt toward <i>chalav yisrael</i> in the modern context. Each opinion has a strong basis both in traditional sources and among contemporary authorities. Accordingly, it is entirely inappropriate to dismiss any of these legitimate approaches – “<i>Eilu v’eilu divrei elokim chaim</i>” (these and these are the words of the Living God; Eruvin 13b).
  
  Gevinat Yisrael
  
  Unlike the prohibition of <i>chalav akum</i> (milk produced by a non-Jew), the prohibition of <i>gevinat akum</i> (cheese produced by a non-Jew) is upheld by all observant Jews in essentially the same manner. In this chapter, we shall outline the development and the parameters of this prohibition as well as some of the issues that are debated by twentieth-century <i>poskim</i>. We will base our discussion on three essays on this topic that have been written by three Kashrut professionals: Rav Yaakov Borow (Tnuva’s <i>Bin’tiv Hechalav</i> pp. 43-47), Rav Zushe Blech (the Orthodox Union’s <i>Daf Kashrut</i>, Adar I 5757), and Rav Avraham Juravel (Mehadrin kashrut journal, Adar II 5755).
  Talmudic Background
  The Rambam (<i>Hilchot Ma’achalot Asurot</i> 3:12-13) notes that there should be more reason to allow cheese produced by a non-Jew than milk produced by a non-Jew, because milk from a non-kosher animal cannot be made into cheese. Nevertheless, <i>Chazal</i> prohibited consuming cheese produced by a non-Jew. Although the Mishnah (Avodah Zarah 2:5; see Avodah Zarah 35a) indicates that <i>Chazal</i> at first concealed the reason for this prohibition, the Gemara (Avodah Zarah 35a-b), searching for the correct explanation, cites a plethora of reasons. It suggests that the non-Jews curdled the milk with the stomach lining from <i>niveilot</i> (animals that were not properly slaughtered); that the non-Jews did not take adequate care to cover the milk that would be used to make cheese, leading <i>Chazal</i> to worry that snakes would release their venom into the uncovered liquids;1<i class="footnote">This explanation assumes that the decree on cheese is basically an extension of the decree against <i>mayim megulim</i> (water that was left uncovered), which <i>Chazal</i> also forbade out of concern for snake venom.</i> that the non-Jews smoothed over the cheese with pig fat; that there might be leftover drops of milk in the cheese that did not curdle, and these drops might have been from a non-kosher animal; and that the non-Jews made the cheese using non-kosher vinegar.
  <i>Rishonim</i>
  The <i>Rishonim</i> debate which of these reasons is accepted. The Rambam (<i>Hilchot Ma’achalot Asurot</i> 3:13) codifies the reason that they use the stomach lining of <i>niveilot</i> to curdle the cheese. Rabbeinu Tam (cited in <i>Tosafot Avodah Zarah</i> 35a s.v. <i>Chada</i>), on the other hand, believes that the primary concern is that the milk was exposed to snake venom. The Shulchan Aruch (Y.D. 115:2) endorses the approach of the Rambam.
  The <i>Rishonim</i> also debate whether the enactment forbidding <i>gevinat akum</i> applies even when the concerns for the enactment are not relevant. Rabbeinu Tam (<i>ibid</i>.) asserts that the concerns are not relevant today, since snakes are not prevalent in our environs. He argues that <i>Chazal</i> did not issue this enactment in a situation where concern for snake venom is not relevant. Furthermore, he states:
  In many places, Jews eat cheese produced by non-Jews, since the non-Jews use flowers to curdle the milk,2<i class="footnote">Interestingly, Rav Blech writes that there is a type of cheese made in Portugal today that uses an enzyme derived from the thistle flower to curdle the milk. In addition, Rav Juravel writes that during World War I, when there was a severe shortage of animal rennet, people in many countries used date tree sap to make cheese. This sap contains an enzyme known as ficin that serves as a curdling agent.</i> and the great rabbis of Narbonne (Southern France) permitted this practice. However, in our locales (Northern France and Germany) there is reason to be strict, since they use stomach linings to curdle milk.
  The Rambam (<i>Hilchot Ma’achalot Asurot</i> 3:14), however, quotes “some <i>Geonim</i>” as ruling that the prohibition of <i>gevinat akum</i> applies even when the reason for the enactment does not apply. He writes:
  [Regarding] cheese that non-Jews curdle with grass or with fruit juice, such as date tree sap, when it is evident in the cheese [that an animal product was not used to produce it]: some <i>Geonim</i> ruled that it is nevertheless forbidden, because the enactment applies to all cheese produced by non-Jews whether a kosher or non-kosher curdling agent was used.
  The Rambam does not cite any authority who disputes the ruling of these <i>Geonim</i>, nor does he criticize this ruling. Rav Yosef Karo (in both the <i>Kesef Mishneh ibid</i>. and the <i>Beit Yosef </i>Y.D. 115 s.v. <i>gevinot</i>) assumes, therefore, that the Rambam concurs with the ruling of these <i>Geonim</i>. The <i>Maggid Mishneh</i> (<i>ibid</i>.) explains that the reason for this ruling is that <i>gevinat akum</i> is a <i>davar sheb’minyan</i> – a full-fledged decree of <i>Chazal</i> of the sort that remains in effect even when the reason for the prohibition is no longer relevant (see Beitzah 5a).
  <i>Shulchan Aruch</i> and Codes<i></i>
  The Shulchan Aruch (Y.D. 115:2) rules unequivocally in accordance with the Rambam. The Rama adds that this is the accepted custom and warns against being “<i>poreitz geder</i>” (breaking the “fence” of common practice enacted by <i>Am Yisrael</i>). He adds, though, that the stringency does not apply where the Jewish community has a tradition to follow the lenient ruling of the great rabbis of Narbonne. The <i>Beit Yosef </i>(ad. loc.), on the other hand, is far less tolerant of those places that maintain their tradition to follow the lenient approach. He strongly urges those few communities who follow this view to adopt the stringent practice of the overwhelming majority of Jewish communities throughout the world.
  The <i>Chochmat Adam</i> (53:38 and 67:7) and the <i>Aruch Hashulchan</i> (Y.D. 115:16-17) rule in complete accordance with the strict view, giving harsh rebuke to those who follow the lenient opinion. These authorities, writing in the nineteenth century, make no mention of entire communities that are lenient, apparently an indication that by their time, there were no longer any prominent communities that followed the lenient tradition.
  This is an especially relevant issue today, as cheese is generally made using either non-animals sources, such as microbial rennet, or animal sources that have been reduced to a powder, which seems to reduce the stomach lining to “mere wood” (Rama Y.D. 87:10) and remove its prohibited status. Accordingly, the reason for this enactment is virtually never relevant today – yet the prohibition still applies, and all observant Jews strictly adhere to it.
  Stomach Lining of a Kosher Animal
  The <i>Rishonim</i> question why the stomach lining of a <i>niveilah</i> renders cheese non-kosher. Indeed, only a small amount of the lining is used, certainly not amounting to one sixtieth of the amount of milk used, which would seem to make the stomach lining <i>bateil </i>(nullified) in the milk. The <i>Maggid Mishneh</i> (to <i>Hilchot Maachalot Asurot</i> 3:13), citing the Ramban and the Rashba, answers that the fact that the taste of the stomach lining is nullified is irrelevant, because <i>Chazal</i> enacted the prohibition of <i>gevinat akum</i> primarily to create a social barrier between us and <i>nochrim</i> – not because of a kashrut problem. Accordingly, they did not apply the standard rules of kashrut, and they prohibited the cheese even though under normal circumstances such a small quantity of <i>niveilah</i> is <i>bateil</i>. This approach is quite cogent in light of our practice to prohibit <i>gevinat akum</i> even though the stated reason for its enactment does not apply.
  The Rambam (ad. loc.), on the other hand, answers that the stomach is a <i>davar hama’amid</i> (something that establishes the form of the item) – it contains the catalyst that turns the milk into cheese – and therefore is not <i>bateil</i> even if it is outweighed sixty to one. This approach, too, is eminently logical. Normally, placement in a mixture sixty times an item’s volume makes the item <i>bateil</i> because it has no significance in such a large quantity. The stomach lining, though, cannot be described as insignificant, since it is indispensable in creating the cheese.
  The Rambam (<i>ibid</i>. 9:16) then observes that if the stomach lining is never <i>bateil</i> because it is a <i>davar hama’amid</i>, cheese made from the stomach lining of an animal that was slaughtered properly should also be forbidden as a mixture between milk and meat. Why, then, does the Gemara mention concern only for the stomach of a <i>niveilah</i>? He answers, following the reasoning of his father’s Rebbe (the Ri Migash), that the rule that a <i>davar hama’amid</i> is never <i>bateil</i> applies only if the <i>davar hama’amid</i> is prohibited already (such as the stomach lining of a non-kosher animal). An item that is inherently kosher, however, such as the stomach lining from a properly slaughtered animal, cannot create a prohibited mixture of milk and meat just because it is a <i>davar hama’amid</i>.3<i class="footnote">See <i>Tosafot </i>(Avodah Zarah 35a s.v. <i>Mipnei</i>) for a different resolution of this problem.</i>
  One also might ask how it is permissible to make kosher cheese if we are forbidden to intentionally nullify prohibited items (<i>ein mivatlin issur l’chatchilah</i>; see Shach Y.D. 87:33). For example, we are not permitted to intentionally place a bit of meat into a glass of milk if we wish to drink the milk, even if there is sixty times more milk than meat. How, then, are we permitted to add a bit of stomach lining to milk in order to make cheese? Rav Akiva Eiger (<i>Teshuvot Rav Akiva Eiger</i> 207, cited in the Pitchei Teshuvah 87:19) explains that the prohibition of <i>ein mivatlin issur l’chatchilah</i> does not apply if two lenient factors are in effect. In the case of cheese, there is, in addition to the factor of the lining’s nullification in more than sixty times its volume of milk, the common practice from the nineteenth century to produce cheese with completely desiccated stomach linings mixed together with other curdling items (see <i>Aruch Hashulchan</i> Y.D. 87:43). Since the curdling process is effected by other items besides the stomach linings, this becomes a situation of <i>zeh v’zeh goreim</i> (an item that was created by two factors, one permissible and one forbidden). In such a situation, we may disregard the prohibited item if it could not have accomplished the task without the aid of the permitted item (see Rama Y.D. 87:11 and Shach Y.D. 87:35).4<i class="footnote">For further discussion of this issue, see Pitchei Teshuvah (Y.D. 87:19) and <i>Darchei Teshuvah</i> (87:138).</i> This leniency, coupled with the <i>bittul</i>, allows us to produce cheese. 5<i class="footnote">Rav Yaakov Borow notes that to his knowledge, no kosher cheese today is made with stomach linings, even ones that have been desiccated.</i>
  Jewish Supervision or Participation – Rama vs. Shach
  There are two unresolved debates concerning the production of kosher cheese. The Rama (Y.D. 115:2) rules (and notes that this is the common custom) that it is sufficient for a Jew to monitor the cheese-making process to render the cheese kosher. According to the Rama, the prohibition of <i>gevinat akum</i> parallels the prohibition of <i>chalav akum</i>, for which supervision likewise suffices to permit the product. The <i>Aruch Hashulchan</i> (Y.D. 115:19) cites the Rambam in his commentary to the Mishnah (Avodah Zarah 2:5 s.v. <i>Amar Lo</i>), who writes explicitly in accordance with the view of the Rama. The Shach (Y.D. 115:20), on the other hand, requires either Jewish ownership of the cheese or active participation of a Jew in the cheese-making. According to the Shach, then, the rules of <i>gevinat akum</i> parallel those of <i>pat akum</i> (bread baked by a non-Jew) in that Jewish participation is required to render the product permissible.
  The Shach offers a textual proof to his ruling from the language of the Mishnayot that present the prohibitions of <i>chalav akum</i> and <i>gevinat akum</i>. The Mishnah (Avodah Zarah 2:6) that presents the former prohibition states explicitly that the milk is prohibited only if a Jew does not watch the milking, whereas the Mishnah (Avodah Zarah 2:5) that presents the prohibition of <i>gevinat akum</i> states simply that the cheese is prohibited, making no distinction as to whether a Jew must watch the cheese-making process or not. The Shach, accordingly, concludes that Jewish ownership or active participation is indeed required to permit us to eat the cheese.6<i class="footnote">See, however, the comments of Rav Yonatan Eybeshitz (<i>Mateh Yonatan</i> Y.D. 115:2), who seeks to refute this proof. </i>
  This dispute has never been fully resolved. Among eighteenth-century authorities, the <i>Noda Biy’huda</i> (2 O.C. 37) rules in accordance with the Rama and notes that this is the accepted practice, whereas the Vilna Gaon (Bei’ur Hagra Y.D. 115:15) rules in accordance with the Shach. Among the nineteenth-century authorities, the <i>Chochmat Adam</i> (67:7) embraces the Shach’s opinion, but the <i>Aruch Hashulchan</i> (Y.D. 115:19) essentially follows the Rama, though he writes that it is proper to accommodate the Shach’s strict ruling. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 3:16) adopts the same approach as the <i>Aruch Hashulchan</i>. Rav Zushe Blech notes that it seems that the generally accepted practice is to follow the Shach.7<i class="footnote">Rav Avraham Halbfinger told me that Rav Yosef Dov Soloveitchik instructed the Rabbinical Council of New England to follow the Shach. </i>
  This dispute has a major impact on the level of supervision required for the cheese-making process. According to the Rama, occasional inspections suffice, because the Gemara (Chullin 4a) states that <i>yotzei v’nichnas k’omeid al gabav dami</i> (spot checks are equivalent to constant supervision). According to the Shach, however, a <i>mashgiach</i> (supervisor) must constantly be available on location to participate in the cheese-making process. This explains why it is impractical for a large company to have its cheeses certified kosher and why kosher cheeses are generally made by companies that produce cheese specifically for the observant Jewish community.
  Soft Cheeses
  Another major debate rages about whether soft cheeses, such as cottage cheese and cream cheese, are included in the prohibition of <i>gevinat akum</i>. Logically, it would seem that since the concern according to the Rambam and the Shulchan Aruch is that the non-Jews used the stomach lining of a <i>niveilah</i> to curdle the cheese, the prohibition should apply only to cheeses that are produced using the enzyme from the stomach lining. Soft cheeses, on the other hand, were not originally made using enzymes. Before the modern age, cottage cheese was made by passively allowing the milk to ferment and separate into curds and whey. Since soft cheese does not need rennet to curdle it, it would seem that it is totally removed from the enactment against <i>gevinat akum</i>, since the premise of the enactment is that non-kosher stomach linings might be used in the cheese production.8<i class="footnote">Even though, as mentioned above, the prohibition of <i>gevinat akum</i> applies even where the reason is not relevant, perhaps soft cheeses, an entire category to which the reason never applied, were not included in the original prohibition.</i>
  In the modern age, when a small amount of rennet is added to hasten the process of making soft cheeses, it can be argued that since the rennet is unnecessary for the actual cheese-making, it does not qualify as a <i>davar hama’amid</i>. Even if the rennet is not kosher, it would seem reasonable to overlook this ingredient under the principle of <i>zeh v’zeh goreim</i>. This rule, as we explained above, dictates that if both a forbidden and a permitted substance contribute together to the creation of a food product, we may ignore the contribution of the non-kosher item if the kosher item could have accomplished the task even without its aid.9<i class="footnote">Rav Blech notes that soft cheese uses no more than 2 milliliters of rennet per 1000 pounds of milk, whereas hard cheese generally requires between fifty and ninety milliliters of rennet.</i> Since the cheese could have formed even without the rennet, the rennet, even if it is not kosher, does not render the cheese forbidden.
  Accordingly, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:48) is inclined to rule that the prohibition of <i>gevinat akum</i> does not apply to soft cheeses. He comments that the principle of <i>zeh v’zeh goreim</i> appears to apply to the production of cottage cheese. In fact, Rav Blech cites Rav Tuvia Goldstein10<i class="footnote">Rav Moshe writes that some great rabbis permit soft cheeses <i>l’chatchilah</i>. Rav Yisroel Belsky reports that this refers to Rav Yosef Eliyahu Henkin. </i> as ruling that one may even rely on this approach <i>l’chatchilah</i> (ideally), since soft cheeses are equivalent to butter, regarding which most observant Jews follow the lenient view among the <i>poskim</i>.11<i class="footnote">We discuss this issue in our earlier chapter about <i>chalav yisrael</i>.</i>
  Rav Juravel suggests a fascinating proof to Rav Moshe’s approach. As noted earlier, the Rambam rules that cheese that was curdled using date sap is prohibited (even though no rennet was used). Rav Juravel notes that the enzyme from date tree sap creates hard cheese. He proposes that the reason why the Rambam presents the example of date tree sap in his description of the <i>gevinat akum</i> prohibition is specifically to illustrate that only hard cheeses are included in the ban.
  Nonetheless, both the <i>Chochmat Adam</i> (53:38) and the <i>Aruch Hashulchan</i> (Y.D. 115:16) rule that the prohibition applies even to cheeses whose production involves no rennet. This approach fits well with the ruling of the Rambam and the Shulchan Aruch that the prohibition applies even when its reason does not. Indeed, even Rav Moshe does not rule unequivocally that soft cheeses are not included in the prohibition of <i>gevinat akum</i>. He even writes that it is inappropriate for a Rav to publicize his lenient considerations.
  Rav Blech and Rav Borow demonstrate that this dispute has been debated by authorities of previous generations, as well: the Radbaz (<i>Teshuvot Radbaz</i> 6:2291) rules that yogurt (which is made without rennet) is included in the <i>gevinat akum</i> prohibition, but the <i>Pri Chadash</i> (Y.D. 115:21) rules leniently.
  Rav Blech questions Rav Moshe’s particular approach based on the assertion in Frank V. Kosikowski’s <i>Cheese and Fermented Milk Foods</i> (p. 111) that the rennet enzymes added in the production of soft cheeses provide for a sweeter cheese. Since this taste could not be attained without the rennet, one cannot use <i>zeh v’zeh goreim</i> as a lenient consideration. Rav Borow, on the other hand, states that the food technologists at Tnuva with whom he consulted stated that the rennet added to soft cheeses does not play a primary role in creating the cheese. Rather, it allows industrial-scale production of the cheeses to proceed more efficiently.
  This dispute has never been fully resolved. Rav Avrohom Gordimer reports that the Orthodox Union’s policy is to rely on the rationale presented by Rav Moshe, which, although not endorsed <i>l’chatchilah</i> by Rav Moshe, was accepted <i>l’chatchilah</i> by Rav Yosef Eliyahu Henkin. This position explains the certification by reliable kashrut agencies of cottage cheese and cream cheese from companies that do not produce specifically for the observant Jewish community. Other kashrut agencies, though, are stricter and require the active participation of a <i>mashgiach</i> even for the production of soft cheeses. Of course, as Rav Borow notes, all agree that even soft cheese requires a reliable kashrut certification to ensure that all ingredients are kosher.
  Whey
  In the cheese-making process, the milk separates into curds and whey. It is questionable whether the whey (which is essentially a byproduct of the process but is used as an important ingredient in many industries) is included in the prohibition of <i>gevinat akum</i>. While Rav Eliyahu Bakshi-Doron (<i>Techumin</i> 23:466) believes that it should be included, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 3:17) rules that it is not. Rav Moshe argues that the whey should be viewed as distinct from cheese, just as butter is treated as distinct from milk according to the lenient opinions regarding <i>chem’at akum</i>. Rav Shmuel Wosner (Teshuvot <i>Sheivet Halevi</i> 4:87) adopts a middle approach, applying the prohibition to whey only when the whey is heated together with the curd at a temperature higher than <i>yad soledet bo</i> (hot to the touch), which is the halachic definition of heat in the context of kashrut and Shabbat.12<i class="footnote"><i>Poskim</i> have varying opinions regarding the parallel in degrees Fahrenheit, ranging from 110-120 degrees (see <i>Teshuvot Minchat Shlomo</i> 1:91:8, Rav Shimon Eider’s <i>Halachos of Shabbos</i> p. 243, and Rav Mordechai Willig’s <i>Am Mordechai</i>, Shabbat pp. 62-64).</i> Since <i>bli’ah</i> (absorption from food) occurs at <i>yad soledet bo</i>, Rav Wosner reasons that the whey absorbs flavor from the curd and is rendered forbidden as <i>gevinat akum</i>.
  Rav Avrohom Gordimer reports that the policy of the Orthodox Union is to follow the approach of Rav Wosner, using Rav Aharon Kotler’s standard (as reported by Rav Shimon Eider and Rav Moshe Heinemann, cited by Rav Blech) of 120 degrees Fahrenheit for <i>yad soledet bo</i>. Although many ordinarily would not rely on Rav Kotler’s ruling in a context where it serves as a leniency, in this context it is justified because the custom in the United States (as mentioned in Rav Moshe’s <i>teshuvah</i>) and Israel (see <i>Bin’tiv Hechalav</i> p. 42) has been to follow Rav Moshe’s entirely lenient ruling. Accordingly, the OU’s policy actually represents an increase in stringency from the previously accepted practice.13<i class="footnote">The OU also requires that the ingredients used to make the cheese be kosher, including the enzymes.</i>
  Conclusion
  Unlike the area of <i>chalav yisrael</i>, there is near uniformity regarding the prohibition of <i>gevinat akum</i>. However, a few pockets of debate still persist, and about these we say “<i>Eilu v’eilu divrei elokim chaim</i>” (these and these are the words of the Living God; Eruvin 13b).
  Although we can expect further areas of disagreement as modern food technology changes at breakneck speed, the <i>poskim</i> surely will continue to successfully apply our ancient and venerated Halacha to new, contemporary challenges.
  
  Israel
  
  Halachic Perspectives on Civilian Casualties
  
  A critical halachic/ethical issue facing the Jewish State and, indeed, the entire civilized world is the question of avoiding civilian casualties when battling terrorists. Terrorist groups such as Al Qaeda and Hezbollah take advantage of Western sensibilities by deliberately embedding themselves within civilian populations, cynically using them as human shields. The civilized world struggles to strike a balance between combating such evil groups on one hand and trying to limit civilian casualties on the other.
  Israel in particular must confront this terrible challenge. In recent years, Israel has risked and lost many of its precious soldiers in order to reduce Arab civilian casualties. For example, after a series of horrific terrorist attacks in the first half of 2002, which included the bombing of the Park Hotel in Netanya where 29 people participating in a <i>Pesach Seder</i> were murdered by a homicide bomber, the Israel Defense Forces (IDF) launched Operation Defensive Shield to cripple terrorist groups. A hotbed of terrorists was the Jenin refugee camp in the Northern Shomron. The IDF could have bombed this refugee camp from the air but instead chose to send foot soldiers house to house to locate and eliminate the terrorists located in the camp, hoping thereby to reduce civilian losses. Civilian casualties were certainly kept to a minimum in this effort. However, thirteen Israeli soldiers were killed in the Jenin operation, men who likely would have been spared had Israel attacked only from the air.
  Similarly, in the summer of 2006, Hezbollah mercilessly pounded Northern Israel with hundreds of rockets. Israel could have responded by “carpet bombing” Southern Lebanon but instead chose to attack with a combination of aerial attacks and ground forces, in part as an attempt to reduce civilian deaths. While Israel undoubtedly reduced non-combatant losses, more than one hundred Israeli soldiers were killed, and the stated goal of eliminating Hezbollah’s presence in Southern Lebanon was not achieved.
  The question we must ask is whether the Israeli government made an appropriate moral decision regarding both Jenin and Lebanon. In other words, does Halachah require sacrificing our own soldiers in order to reduce enemy civilian losses?
  Rav Yuval Sherlow visited the Torah Academy of Bergen County in March 2007 and told the students of a similar issue that he was asked to resolve. The Israeli Air Force had located a very dangerous terrorist leader and had the opportunity to eliminate him. The terrorist noticed the plane and slipped into a taxi cab that had a civilian passenger in it. The question was whether to bomb the cab despite the presence of non-combatants in the car.
  In this chapter, we shall outline the halachic and <i>hashkafic</i> issues involved in resolving such critical issues. We will not address the political and military questions involved in making these decisions, leaving those considerations for experts in these areas. There has been extensive halachic discussion of this issue, including a <i>teshuvah</i> written by Rav Shaul Yisraeli (<i>Teshuvot Ammud Hayemini</i> 16 and <i>B’tzomet Hatorah V’hamedinah</i> 3:253-289) and a lengthy essay written by Rav Dr. Neriah Gutel that appears in <i>Techumin</i> (23:18-42). We will seek to discover a consensus approach that has emerged from the prominent <i>poskim</i>, including Rav Yisraeli, Rav Yaakov Ariel, Rav J. David Bleich, Rav Aharon Lichtenstein, Rav Hershel Schachter, and Rav Asher Weiss, all of whom have addressed this issue.
  Shimon and Levi at Shechem
  The point of departure for the discussion of this issue is Shimon and Levi’s action at Shechem, recorded in the thirty fourth chapter of <i>Sefer Bereishit</i>. Subsequent to the kidnap and rape of Dinah, Shimon and Levi attacked Shechem and killed not only the rapist (Shechem) and the town leader (Chamor), but also all of the males of Shechem who had a <i>brit milah</i>.1<i class="footnote">For a discussion of whether they actually killed all the males, as well as a full analysis of this event, see Binyamin Malleck’s essay that appears in <i>Megadim</i> (23:9-30).</i> We shall survey the three primary views: the respective approaches of the Rambam, the Ramban and the Maharal.
  The Rambam (<i>Hilchot Melachim</i> 9:14) believes that Shimon and Levi’s action at Shechem was appropriate. He notes that one of the seven Noahide laws that Halachah demands all of humanity abide by is “<i>dinim</i>” – to eliminate evil from its midst. The failure of the males in Shechem to protest and/or prevent the rape and continued abduction of Dinah constituted a violation of the obligation of <i>dinim</i>, a crime punishable by death (see Sanhedrin 57a).
  The Ramban (commentary to Bereishit 34:13 and 49:5-6) strongly disagrees with the Rambam’s opinion. While he believes that Shimon and Levi were justified in killing Shechem and Chamor, he argues that the killing of the other males of Shechem was entirely unjustified. The Ramban presents two basic arguments for his position. Firstly, the residents of Shechem did nothing wrong to Yaakov’s family. The Ramban asserts that the residents of an area do not deserve death for failure to control the evil actions of their leader. He adds that even if the people did in fact deserve to die due to other violations of the Noahide laws, Shimon and Levi were not authorized to execute such punishment.
  Proofs to the Rambam and Ramban
  The Ramban derives support for his opinion from the fact that Yaakov strongly criticized Shimon and Levi’s actions (Bereishit 34:30). The Rambam could counter that the Torah (<i>ibid.</i> 31) records the retort of Shimon and Levi to this criticism, to which Yaakov does not respond. On the other hand, the Ramban could reply that Yaakov further criticized Shimon and Levi on his deathbed (Bereishit 49:5-7). Thus, the Torah gives the last word to Yaakov.
  The Rambam might respond by noting that Yaakov on his deathbed (Bereishit 49:7) criticized Shimon and Levi for their leading roles in the sale of Yosef, but not for killing the residents of Shechem.2<i class="footnote">The Ramban would disagree since he believes that Yaakov never discovered that it was the brothers who sold Yosef; see his commentary to Bereishit 45:27.</i> Indeed, the words “<i>ish</i>” and “<i>shor</i>” used in Yaakov’s rebuke fit Yosef, as he is referred to as a <i>shor</i> in Moshe Rabbeinu’s final blessing (Devarim 34:17) and is called an <i>ish</i> no fewer than fourteen times in <i>Sefer Bereishit</i>.
  The Maharal and Twentieth-Century Applications
  The Maharal (<i>Gur Aryeh</i> to Bereishit 34:13) adopts a compromise approach between the Rambam and the Ramban. On the one hand, he agrees with the Ramban that the people of Shechem cannot be held accountable for the actions of their leader, arguing that their failure to execute <i>dinim</i> was due to coercion by their leaders.
  On the other hand, the Maharal justifies the actions of Shimon and Levi, asserting that the Torah sanctions waging war when a nation attacks us. In such circumstances, we are permitted to respond to the other nation’s provocation. In responding, we attack the other nation and do not distinguish between the guilty members and the innocent members of that nation. Thus, Shimon and Levi appropriately responded to Shechem’s aggression. Once they responded, they were permitted to attack the entire nation, because this is the manner in which war is waged.
  Rav Asher Weiss (<i>Minchat Asher</i>, Devarim p. 222) notes that the Maharal does not sanction frivolous attacks on civilian members of an enemy nation. Rather, he permits them only when the proper execution of battle plans necessitates killing non-combatants and there is no other way to accomplish the military goal. For example, it appears that the Maharal would approve the dropping of atomic bombs on Hiroshima and Nagasaki in 1945 despite the Japanese babies who were killed in this attack. He also would sanction the unrelenting Allied bombing against Germany toward the end of World War II despite the killing of German babies in towns such as Dresden.
  I should stress that many people probably would not be alive today if not for these attacks. My father, for example, served as a combat soldier in the Pacific during World War II and might not have survived an American invasion of Japan. Many Holocaust survivors owe their survival to the Allied bombing of Germany, which brought that evil nation to its knees.
  Applying the Rambam, the Ramban, and the Maharal
  The Rambam and the Ramban argue as to whether Halachah considers an entire population responsible for the evil perpetrated by its leaders. As noted, it is difficult to discern whose opinion is endorsed by the <i>Tanach</i>. Indeed, Rav Shaul Yisraeli (ad. loc.) concludes his discussion of the Rambam-Ramban debate by noting that “In practice, there is insufficient basis to permit action against an entire community that has failed to execute its duty and remove murderers from its midst so long as it is reasonable to excuse them with the claim of fear, pressure, and the like.”
  However, Rav Yaakov Ariel (<i>Arachim B’mivchan Hamilchamah</i> p. 83), Rav Dov Lior (<i>Techumin</i> 4:186), Rav Hershel Schachter (<i>B’ikvei Hatzon</i> p. 207), and Rav Asher Weiss (<i>Minchat Asher</i>, Devarim pp. 217-222) all rely upon the Maharal’s interpretation of the Shechem episode to allow harming anyone who belongs to an enemy nation during wartime. Rav Yitzchak Blau argues, though, that “Maharal is a decidedly minority viewpoint with regard to that story and thus is a shaky leg upon which to build a far reaching position” (<i>Tradition </i>39:4:11). Rav Neriah Gutel (<i>Techumin</i> 23:32) expresses similar reservations about applying the Maharal’s principle in practice. We will seek to demonstrate why the Maharal is a most solid source upon which to base a resolution to our question.
  Support for the Maharal
  The Maharal’s approach to the Shechem incident is endorsed by Rav Zalman Sorotzkin (<i>Oznayim Latorah</i>,<i> Bereishit</i> 34:25), and Rav Schachter (ad. loc.) argues that the Netziv advances a similar principle (<i>Meromei Sadeh</i>, Kiddushin 43a s.v. <i>Mah</i> and Eruvin 45a s.v. <i>Peirush Rashi</i>).
  Even if the various commentators do not share the Maharal’s defense of Shimon and Levi, they do not necessarily imply a rejection of his principle. They could simply believe that killing Shechem and Chamor alone would have sufficed to rescue Dinah and that waging war against the entire town of Shechem was thus unjustified. In other words, the war against Shechem was uncalled for, but in a justified war one may attack without distinguishing between the innocent and guilty if it is impossible to effectively wage war in another manner.
  Furthermore, Rav Asher Weiss points out that the Radak (<i>Divrei Hayamim</i> 1:22:8) also seems to subscribe to the Maharal’s principle. In his explanation of why David was disqualified from building the <i>Beit Hamikdash</i> due to the “blood that he had shed,” he writes that David had killed non-combatants in the course of battle but was not held accountable for their deaths “since his intention was to prevent evildoers from harming our nation.”3<i class="footnote">One might wonder, then, why David was disqualified from building the <i>Beit </i>Hamikdash. Rav Elchanan Samet’s <i>Iyunim B’farshiot Hashavua</i> (1:68-69) explains that even for an “<i>aveirah lishmah</i>” (a sin committed with a noble objective), there are consequences. Thus, although David acted properly, he still was disqualified from building the <i>Beit Hamikdash</i>. Rav Weiss cites this consequence as evidence that civilian casualties are tolerated only if there are no other alternatives.</i>
  In addition, Rav Schachter argues that a principle presented by the <i>Minchat Chinuch</i> (425:1) also accords with the Maharal’s approach. The <i>Minchat Chinuch</i> argues that the rules forbidding endangering oneself do not apply in a situation of war. If a war is mandated by the Torah, then by definition, explains the <i>Minchat Chinuch</i>, it demands that soldiers endanger their lives since, unfortunately, this is the normal course of war. Similarly, asserts Rav Schachter, the Torah expects that civilians will be killed during a war if this is necessary to achieve success. Rav Schachter notes that Rav Yitzchak Zev Soloveitchik (in his commentary to the <i>haftarah</i> of <i>parashat beshalach</i>) and the <i>Teshuvot Devar Yehoshua</i> (2:48)4<i class="footnote">The <i>Devar Yehoshua</i> clarifies that this applies even to a discretionary war.</i> concur with the assertion of the <i>Minchat Chinuch</i>.
  Rav Shaul Yisraeli (ad. loc.) notes that “We do not find the obligation in war to distinguish between blood and blood (combatants and non-combatants). In the course of war, when laying siege to a city and the like, there is no obligation to make such distinctions.” Rav J. David Bleich (<i>Contemporary Halakhic Problems III</i>:277) echoes this observation:
  Not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians, but to this writer’s knowledge, there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic or moral problem.
  Indeed, the Gemara (<i>Bava Kama</i> 92a) seems to articulate this principle when it presents a basis in the <i>Tanach</i> for the folk saying, “The carob tree is struck together with its thorn.” Rashi (<i>ibid</i>. s.v. <i>b’hadei hotza</i>) explains that when one removes a thorn that grows by a carob tree, sometimes the carob tree is uprooted together with the thorn. The idea behind this folk saying, Rashi explains, is that “The neighbors of evildoers are punished along with the evildoers.”
  Accordingly, we see that far from being a “decidedly minority viewpoint,” the Maharal’s principle constitutes a mainstream and normative concept that is appropriately applied by leading <i>poskim</i> such as Rav Ariel, Rav Schachter, and Rav Weiss. This is hardly surprising in light of King Shaul’s warning to the <i>Keini</i> to evacuate their homes lest they be harmed in the course of his war with <i>Amaleik</i>. We see that Shaul was prepared to endanger civilians in the course of war, and he is not censured for this willingness by either the <i>Tanach</i> or <i>Chazal</i>. Both Rav Ariel (<i>Techumin</i> 4:190) and Rav Bleich (ad. loc.) cite this as strong support for the principle articulated by the Maharal.5<i class="footnote">Rav Weiss (ad. loc. p. 219) defends the use of the <i>Tanach</i> and its commentaries to decide this issue:Since the time of the destruction of the <i>Beit Hamikdash </i>and the loss of Jewish sovereignty, these types of questions were not relevant in practice and little attention was devoted [in the Talmud and its commentaries] to the issue of wars and how to wage them. We have no choice other than to base our discussion on the wars waged by Jews as recorded in the <i>Tanach</i> and its commentaries throughout the generations when we come to render a decision in these matters.</i>
  The Maharal and the Geneva Convention
  Rav Yisraeli and Rav Gutel note that Halachah seems to require conforming to the Fourth Geneva Convention and the norms of civilized countries regarding the ethical manner in which to treat non-combatants during war.6<i class="footnote">The Fourth Geneva Convention forbids harming non-combatants and engaging in collective punishment of non-combatants during war. It was ratified by the State of Israel in 1949.</i> This appears to apply even if the Convention contradicts Halachah, just as we were required to honor the treaty we signed with the <i>Givonim</i> (<i>Yehoshua</i> chapter nine) despite the fact that it violated Halachah (see Rambam, <i>Hilchot Melachim</i> 6:5). Rav Yisraeli notes, however, that this applies not to the theory or rhetoric, but rather to the manner in which the Geneva Convention is practiced by civilized countries.7<i class="footnote">This is similar to the idea I heard Rav Mordechai Willig cite in the name of Rav Aharon Kotler and Rav Moshe Feinstein that the rule of <i>dina d’malchuta dina</i> (the obligation to honor the laws of land in which we reside) applies to the law as it is applied, not as it is written. For example, Rav Kotler permitted driving sixty-two miles-per-hour in a fifty-five mile-per-hour zone, since police did not issue a ticket for traveling at less than sixty-three miles-per-hour.</i>
  Regarding warfare, Harvard Law School Professor Alan Dershowitz writes (<i>The Case for Israel</i> p. 167):
  Although collective punishment is prohibited by international law, it is widely practiced throughout the world, including the most democratic and liberty-minded countries. Indeed, no system of international deterrence can be effective without some reliance on collective punishment. Every time one nation retaliates against another, it collectively punishes citizens of that country. The American and British bombings of German cities punished the residents of those cities. The atomic bombings of Hiroshima and Nagasaki killed thousands of innocent Japanese for the crimes of their leaders. The bombing of military targets inevitably kills civilians.
  We may add the following examples to Professor Dershowitz’s list: the Allied blockade of the Central Powers during World War I to force them into submission via starvation; the doctrine of Mutually Assured Destruction, which prevented Soviet attack during the Cold War based on the threat of collective punishment on a massive scale; and the French fight against Algerian terrorists. The practice of Allied forces during the two World Wars established the norm for how civilized nations practice the Geneva Convention when fighting an evil and tenacious enemy that is bent on annihilating its opponents, a norm very much in harmony with the Maharal’s principle of conduct during warfare.
  Rav Ariel, Rav Lior, Rav Schachter, and Rav Weiss are justified in following the principle articulated by the Maharal, which has a solid basis in the <i>Tanach</i>, <i>Chazal</i>, <i>Rishonim</i>, and <i>Acharonim</i>. Thus, Halachah permits waging war without excessive regard for civilian casualties if the war is justified and no viable alternative exists through which to wage a successful battle.
  We should stress that the IDF does not deliberately target civilians in order to weaken the enemy, as the Allies did during World War II. Israel certainly is justified in attacking terrorists who use civilians as human shields, despite the risk of collateral damage.
  Three critical issues must be addressed in order to apply the Maharal to <i>Medinat Yisrael</i>’s current struggle with Arab terrorism. Firstly, is the current struggle categorized as war? Second, is the struggle against a nation? Finally, must Israel risk the lives of its soldiers in an attempt to reduce civilian casualties?
  Is the Current Struggle Defined as War?
  It is important to stress that the Torah permits risking enemy civilians only during wartime. Rav Yisraeli notes that an individual may not save his life by killing another innocent human being. Thus, it is critical to determine if the current struggle against terrorism is defined as war. The intermittent battles against terrorists are fundamentally dissimilar to a “constant” war of the type Israel waged in the past, such as the Yom Kippur War.
  Rav Yisraeli and Rav Hershel Schachter (<i>B’ikvei Hatzon</i> pp. 206-207) argue that the fight against terrorism is defined as a war. Rav Yisraeli addresses a specific situation that occurred in 1953 in which the Israeli forces raided an Arab village named Kibiyeh in response to a series of terrorist attacks that included the murder of a woman and her two small children in Yehud by Arab terrorists. Rav Yisraeli defends the legitimacy of such action as an act of war in which distinction is not drawn between guilty and innocent blood. We again stress that such permission applies only if the war is legitimate and the mission’s success hinges upon risking the lives of enemy civilians.
  Rav Yaakov Kaminetzsky (cited by Rav Schachter) maintains that Israel has been in a constant state of war (from a halachic perspective) since the establishment of the state. Rav Yaakov accordingly ruled in 1970 that it was forbidden to ransom the great Rav Yitzchak Hutner, who at that time was being held captive in Jordan by Arab terrorists who had hijacked the flight on which he was a passenger. There was a suggestion to offer a huge sum to ransom Rav Hutner since <i>Tosafot</i> (Gittin 58a s.v. <i>Kol</i>) permit paying an exorbitant sum to save a great Rav. Rav Yaakov argued that <i>Tosafot</i>’s ruling applies only during peacetime. Since Israel’s ongoing struggle with terrorism constitutes a war, Rav Yaakov ruled, it was forbidden to ransom even one as great as Rav Hutner.
  Indeed, Rav Yuval Sherlow notes the shifting paradigms of the concept of war. Terrorists wage war in a fundamentally different manner than armies during a conventional war. The military response necessarily must differ as well, and we cannot gauge the morality of such responses using the paradigms of “conventional wars.” The bottom line, Rav Sherlow maintains, is that this struggle is defined as war even if it differs from wars waged in prior generations.8<i class="footnote">Based on this, Rav Sherlow rules (in a <i>teshuvah </i>addressed to Rav David Eisen) that the IDF tactic of asking an Arab neighbor to knock on the door of a terrorist’s home, which risks the Arab’s life in an attempt to spare IDF soldiers, is completely in consonance with Halachah.</i>
  Are We Waging War Against a Nation?
  The question arises as to whether or not the State of Israel is considered to be waging a war against the Palestinian community, as it seems that the Maharal’s principle applies only when waging a war against a nation. Rav Yitzchak Blau argues that “Even after recognizing the evil done by terrorists, can it truly be said that modern Israel is in a state of war with the collective body of Palestinians when Israelis frequently hire Palestinian workers?” (<i>Tradition</i> 39:4:17). Nonetheless, Rav Yisraeli and Rav Schachter answer a resounding “Yes” to this question.
  Rav Blau’s question emerges from his misapplication of the paradigm of the definition of war from a conventional war to the war against terrorism. The fact that, for example, Americans did not hire Japanese workers during World War II is entirely irrelevant to the current war on terrorism. Indeed, Israelis’ hire Arab workers with the intention, in part, of motivating them to prefer the stability of peace. Moreover, Rav Blau’s question seems to have become moot when the Palestinians elected Hamas to run the Palestinian Authority in 2006. How can one reasonably claim the innocence of the Palestinian people when they chose to elect a party that explicitly calls for Israel’s destruction? Furthermore, the Gaza Strip, which is governed entirely by Hamas, undoubtedly constitutes an enemy nation entirely analogous to the relationship between Japan and the United States during World War II.
  Moreover, even if one asserts that Israel is engaged in a war against the army or community of terrorists and not the Palestinian people, the Maharal’s principle remains relevant. Shaul warned the <i>Keini</i> people to move away from <i>Amaleik</i> lest they be killed in the ensuing battle. We see that even though Shaul was waging war only against <i>Amaleik</i>, he was allowed to risk harming another people embedded within them.9<i class="footnote">The aforementioned Radak also does not limit the permission to risk non-combatants to members of the enemy nation; as long as the intention is to avoid harm to our nation, it is permissible.</i> Similarly, the Israeli army may risk the lives of Palestinian civilians who live among Palestinian terrorists. The same applies to Hezbollah terrorists embedded within the civilian population of Lebanon. As Rav Hershel Schachter commented to me, a war must be fought properly, not with one hand tied behind one’s back.10<i class="footnote">The idea of properly executing a battle plan even at the expense of civilian members of a nation distinct from the enemy need not necessarily be based on the Maharal. The precedent of Shaul and the <i>Keini</i> serves as a model for Rav Schachter’s assertion even if the Maharal’s principle is inapplicable to such a situation. See also <i>Minchat Asher</i>, Devarim p. 221.</i> Rav Yuval Sherlow similarly stated that there is an ethical obligation for a nation to win a justified war.
  Placing Soldiers at Risk to Reduce Civilian Casualties
  The Israeli army is clearly entitled to risk the lives of civilians in their efforts to eradicate terrorists. The crucial question, though, is whether civilized countries must risk their soldiers’ lives in order to <i>reduce</i> civilian casualties. This question is debated by leading <i>poskim</i> of our generation. Rav Aharon Lichtenstein believes Israel must “absolutely consider the extent of the justification of killing a large group [of civilians mixed with enemy soldiers] in order to save the life of an individual [Israeli soldier]” (<i>Techumin</i> 4:185). He regards the amount of civilian casualties as a factor to consider when conceiving battle plans. Rav Avraham Shapira (<i>Techumin</i> 4:182) and Rav Dov Lior (<i>Techumin</i> 4:186) strongly disagree. Rav Lior writes, “In times of war, there surely exists firm halachic basis for any action taken in order to ensure that not even one soldier is God-forbid harmed.” Rav Schachter and Rav Bleich told me that they agree with Rav Shapira and Rav Lior. In fact, Rav Schachter argues that Israel acted immorally by risking its soldiers in Jenin and Lebanon in order to reduce Arab civilian casualties. Rav Bleich concurred with Rav Schachter that it is forbidden to risk Israeli lives in order to save Arab civilians. Avi Levinson reports that Rav Mordechai Willig told him that he also agrees with the approach of Rav Shapira and Rav Lior.
  We should note that neither side in this debate cites an explicit source regarding this matter.11<i class="footnote">Professor Eliav Shochetman, though, notes that this issue appears analogous to a questioned posed to Radbaz (<i>Teshuvot Radbaz </i>3:627). The Radbaz was asked whether it is permitted for a person to sacrifice one of his limbs in order to save his friend’s life. He responded that if there is a serious chance that the one sacrificing the limb will be endangered thereby, it is a “foolish piety” to do so, since “his chance [of death] is more significant than his friend’s definite [survival].” It thus appears that it is inappropriate for the IDF to risk its own soldiers in order to save enemies from certain death. The Radbaz’s position is accepted by most <i>poskim</i>. See, for example, <i>Teshuvot Chelkat Yaakov</i> 2:143 and <i>Teshuvot Tzitz Eliezer</i> 9:28:3 and 9:45. Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 3:84) thus concludes, “The majority of <i>acharonim</i> concurs that one is forbidden to place himself in great danger in order to save his friend from certain danger.”</i> Rather, it appears to be a question of halachic-moral intuitions of great <i>poskim</i>. We should stress that we cannot say that one side is more stringent or maintains a higher moral standard, because each side believes the opposing position to be morally wrong. One could simply add that just as we cited from Rav Yisraeli and Rav Bleich that there is no halachic source “that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken,” so too there exists no classic halachic source requiring or even permitting risking Israeli soldiers to save Arab civilian lives. In the absence of explicit sources in either direction, it is fair to say that the consensus opinion of major rabbinic authorities does not accord with the approach of Rav Lichtenstein on this matter.
  Rav Bleich cautions, though, that in certain situations it seems that Israel might be justified in risking soldiers’ lives in order to spare Arab civilians if it feels that causing Arab civilian casualties will later endanger Israeli lives as a result of (unjustified) international condemnations. One might add that if Israel fears that Arabs will be incited by civilian casualties and therefore endanger Israeli lives, risking Israeli soldiers to save (other) Israeli lives might be permitted.12<i class="footnote">This is based on the Gemara (Shevuot 35b) that sanctions a king risking one sixth of the population during wartime. We see that leaders may risk a small segment of the population in the short term in order to preserve the population at large in the long term.</i> We should stress, though, that in these cases, risking Israeli soldiers may be justified solely due to the consideration that it will save Israeli lives in the long run.13<i class="footnote">Rav Weiss concludes his discussion by noting that there may be a distinction between Jews and non-Jews in this regard. See also Rav Shlomo Yosef Zevin’s <i>L’or Hahalachah</i> pp. 16-18 regarding the issue of non-Jews waging war.</i>
  Conclusion
  The Torah wishes us to have a degree of compassion even for our enemies. For example, the Ramban (positive <i>mitzvah </i>5 of those the Rambam omitted) cites the <i>Sifri </i>that requires that when besieging an enemy position, we should not completely encircle them. We should leave one side open in order to give the enemy a chance to escape. The Ramban explains that one reason for this rule is that we should have mercy on the enemy soldiers. He adds that it is our interest to do so, since it will encourage enemy soldiers to flee, thereby weakening the morale of our opponents.14<i class="footnote">Professor Shochetman notes that there is a dispute regarding whether this <i>mitzvah</i> applies even to wars that we are required to wage (<i>milchemet mitzvah</i>), such as defending the Jewish people from attack. Rav Shaul Yisraeli (<i>Techumin</i> 4:35-36) believes it applies only to discretionary wars, whereas Rav Shlomo Goren (<i>Teshuvot Meishiv Milchamah</i> 3:5:245) feels that it applies even to an obligatory war.</i>
  Nonetheless, as Rav Hershel Schachter and Rav Yuval Sherlow explain, we must win a war. The compassion we must have for our enemies cannot impede our ability to win a war. Indeed, Rav Sherlow suggests that the IDF’s code of ethics’ first clause should state that that it is a moral obligation for the Israeli army to win its justified battles. He believes that the failure to recognize victory as a fundamental moral principle significantly contributed to the lack of success in the Second Lebanon War of 2006.
  The Jewish leadership in <i>Eretz Yisrael</i> has made extraordinarily generous offers for peace towards its Arab neighbors throughout the past decades. It accepted the Peel Partition Plan of 1937, the United Nations Partition Plan of 1947, offered to exchange land for peace immediately after the Six Day War in 1967 and, in 2000, Prime Minister Ehud Barak offered stunning concessions to Yasser Arafat at Camp David. The Arabs have rejected every one of these concessions and have responded with wars intended to destroy the State of Israel and exterminate its citizens. Israel clearly has the right to defend itself and enjoys the ethical right, nay, obligation to wage war successfully. Misplaced compassion for enemy soldiers and civilians cannot hamstring our efforts to effectively wage war. The failures of 2006 clearly demonstrate this point.15<i class="footnote">We must stress, however, that the Maharal authorizes only a government to harm civilians in war (if it determines that no viable alternative exists). Rav Yoezer Ariel (<i>Techumin</i> 5:356) cites Rav Avraham Shapira, who strictly forbids individuals to take the law into their own hands even if they feel the Israeli government does not adequately punish evildoers amongst our enemies.</i>
  Our patriarch Avraham experienced moral anguish over the enemy soldiers that he killed in the war that he successfully waged against the four Mesopotamian kings (see <i>Bereishit Rabbah</i> 44:5 and Rashi to Bereishit 15:1). However, this emotion did not prevent him from carrying out his moral obligation to wage war vigorously and properly against the four Mesopotamian aggressors.
  Avraham teaches timeless lessons about misplaced compassion toward our enemies. Similarly, the consensus rabbinic opinion regards the risking of Israeli soldiers and restraint from waging war properly in order to reduce Arab civilian casualties as misguided. May Hashem bless His nation with peace and render this discussion an entirely theoretical concern.
  
  Israeli War Veterans and Nesi'at Kapayim
  
  A question that <i>kohanim </i>who serve in the Israel Defense Forces (IDF) might face upon discharge is whether or not they may continue to perform the <i>mitzvah</i> of <i>nesi’at kapayim</i> (raising the hands to bless the people; Bemidbar 6:22-27). The basis of discussion of this issue is the Gemara (Berachot 32b) stating that a <i>kohen</i> who has killed is disqualified from performing <i>nesi’at kapayim</i>. As a source for this principle, the Gemara cites a <i>pasuk </i>from <i>Yeshayahu</i> (1:15), which teaches that because our hands are filled with blood, Hashem ignores us when we extend our hands (interpreted by the Gemara as a reference to <i>nesi’at kapayim</i>). The Rambam (<i>Hilchot Nesi’at Kapayim</i> 15:3) and the Shulchan Aruch (O.C. 128:35) codify this passage as normative Halachah. We will cite the rulings of Rav Moshe Feinstein, Rav Eliezer Waldenberg, and Rav Ovadia Yosef, who focus on the parameters and scope of this prohibition, discussing such issues as whether it applies to one who kills <i>b’oness</i> (under duress), one who kills a <i>nochri</i>, and one who kills in the course of performing a <i>mitzvah</i>.
  Rav Moshe Feinstein – <i>Oness</i>
  In a brief responsum, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:158) rules that a <i>kohen</i> who was drafted into an army during a time of war and killed someone in the course of battle “is obviously eligible to perform <i>nesi’at kapayim</i>.” Rav Moshe cites a ruling of the <i>Pri Chadash</i> (cited by the <i>Ba’eir Heiteiv</i> O.C. 128:59) as a precedent. The <i>Pri Chadash</i> argues that if a <i>kohen</i> killed after being ordered to kill an innocent individual on pain of death, he may continue to perform <i>nesi’at kapayim</i>. Although the <i>kohen</i> acted incorrectly, for in such a case Halachah (Pesachim 25b and Shulchan Aruch Y.D. 157:1) requires that one forfeit his life rather than kill, he is not disqualified, since he was coerced.
  The Mishnah Berurah (128:128) cites the <i>Pri Chadash</i> as normative.1<i class="footnote">See, though, Sha’ar Hatziyun 128:99, where he expresses some reservation about this ruling.</i> Rav Feinstein writes: “If so (the <i>Pri Chadash </i>is correct), how much more so someone who was drafted into the army and is obligated to join due to the government regulations and did not act in contradiction to Halachah is permitted and even obligated to participate in <i>nesi’at kapayim</i>. This is a simple and clear matter.”2<i class="footnote">It appears that Rav Moshe’s ruling applies even to a <i>kohen</i> who was drafted to fight in an unjust war, since he was coerced to do so.</i>
  Rav Eliezer Waldenberg – <i>Nochri</i> Vicitms
  Rav Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 14:60) focuses on whether this prohibition applies to a <i>kohen</i> who has killed a <i>nochri</i>. Halachah clearly forbids murdering a <i>nochri</i>, and, because of the <i>chillul Hashem</i> involved, regards it as a more severe crime than killing a Jew.3<i class="footnote">See <i>Mechilta D’Rabi Yishmael</i>,<i> Mishpatim</i>,<i> Masechta D’nezikin</i>,<i> parashah</i> 4, Ra’avan to <i>Bava Kama</i> 113a, <i>Sefer Yerei’im</i> (245), <i>Meshech Chochmah</i> (Shemot 21:14), and Rav Yehudah Amital’s letter that appears in <i>Alon Shevut</i> 100:55-61 for more information about this subject.</i> Nonetheless, a major rule of Talmudic analysis is that the source of a Halachah shapes its character. Accordingly, the <i>Prishah</i> (O.C. 128:46, printed in the Machon Yerushalayim edition) rules that killing a <i>nochri </i>is not encompassed by this rule, since he understands the <i>pasuk</i> cited from <i>Sefer Yeshayahu</i> as referring only to <i>kohanim</i> who killed Jews.
  On the other hand, the Pri Megadim (O.C. 128:51) cites the <i>Tzeidah Laderech</i> (to <i>Parashat Mishpatim</i>), who believes that this disqualification applies to one who murders a <i>nochri</i> as well, since one who kills a <i>nochri</i> is classified by Halachah as a <i>rotzei’ach</i> (murderer).4<i class="footnote">For further analysis of this dispute between the <i>Prishah </i>and the <i>Tzeidah Laderech</i>, see Rav Moshe Shternbuch’s <i>Teshuvot V’hanhagot</i> (1:131).</i>
  A number of twentieth-century authorities rule in accordance with the <i>Tzeidah Laderech</i>, including Rav Ben-Zion Uzziel (<i>Teshuvot Mishpetei Uzziel</i> 3:10), Rav Gedalia Felder (<i>Yesodei Yeshurun</i>,<i> Ma’arechet Nesi’at Kapayim</i> 31), and Rav She’ar Yashuv Cohen (<i>Techumin</i> 6:31-44).
  Rav Waldenberg, however, rules in accordance with the <i>Prishah</i>. First, he notes that many prominent <i>Acharonim</i> endorse this view. These authorities include the <i>Ma’amar Mordechai</i> (O.C. 128:43) and the <i>Kaf Hachaim</i> (O.C. 128:208). Furthermore, Rav Waldenberg notes that the <i>Prishah</i>’s ruling was omitted from most editions of the <i>Tur</i> and was lost for many years due to censorship. Rav Waldenberg argues that as the <i>Tzeidah Laderech</i> was a student of the <i>Prishah</i> and most likely would not have disagreed with the ruling of his mentor had he been aware of it, the <i>Prishah</i>’s view should be considered authoritative. Rav Waldenberg applies the principle articulated by the Rama (C.M. 25:2) that a ruling of a later <i>poseik</i> need not be followed if an earlier source is discovered that contradicts the later <i>poseik</i>’s ruling, since perhaps the later authority was not aware of the earlier ruling and would have retracted his own ruling had he in fact known of it.
  Rav Waldenberg thus concludes that a <i>kohen</i> who killed a <i>nochri</i> may perform <i>nesi’at kapayim</i>. He writes emphatically, “<i>Kal vachomer ben beno shel kal vachomer</i> (how much more so) a <i>kohen</i> who killed a <i>nochri</i> in case of war or other emergency should be entitled to participate in <i>nesi’at kapayim</i>.”
  Rav Ovadia Yosef – <i>Mitzvah</i>
  Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 2:14) refers to the <i>poskim</i> (<i>Teshuvot Tzvi Tiferet </i>37, <i>Teshuvot Levushei Mordechai</i> O.C. 2:17, and <i>Teshuvot Vayitzbor Yosef</i> 36) who grappled with the question of the eligibility for <i>nesi’at kapayim</i> of <i>kohanim</i> who fought in wars and killed soldiers from the opposing side. Rav Ovadia writes:
  However, they addressed the issue based on their time and place, and the discussion focused primarily on the issue that they killed enemy soldiers among whom were Jews. [A lingering trauma in the collective Jewish conscience is the tragedy of Jews having fired on fellow Jews during World War I, since Jews were drafted into the armies of the opposing forces - C.J.] Here (in the case of Israeli soldiers who killed enemy soldiers), in a defensive war in which <i>kohanim</i> risked their lives to confront the enemy to save Jewish lives, it is proper to tell these soldiers ‘Yeyasher Kochacha and may your hands be strengthened.’ The matter is clear beyond any shadow of a doubt that they are eligible and worthy for <i>nesi’at kapayim</i>, and they should be blessed by the One Above.
  We may add that Rav Ovadia’s ruling applies equally to non-Israeli citizens who volunteer to serve in the Israeli army, since they too are performing a <i>mitzvah</i>.5<i class="footnote">Rav Moshe’s reasoning, though, addresses only soldiers who were drafted into the army and presumably would not apply to volunteers.</i> The ruling also seems to apply to one who has legitimately killed enemy non-combatants in the course of a justifiable military operation, since this is a tragic yet legitimate aspect of the <i>mitzvah </i>of waging war and defending innocent lives.6<i class="footnote">See our earlier chapter on this subject.</i>
  The Shulchan Aruch (O.C. 128:36)7<i class="footnote">See the Mishnah Berurah 128:133, who applies this ruling expansively.</i> supports Rav Ovadia’s ruling. The Shulchan Aruch rules that a <i>kohen</i> remains eligible to perform <i>nesi’at kapayim</i> if an infant died as a result of the <i>brit milah</i> the <i>kohen </i>performed on him. The Mishnah Berurah (128:132, citing the Magen Avraham 128:52) presents three reasons for this ruling: the <i>kohen</i> intended to perform a <i>mitzvah</i>, perhaps the child was a <i>neifel</i> (non-viable),8<i class="footnote">A child less than thirty days old is considered to be a <i>safeik neifel</i>, possibly non-viable (Shabbat 135b). One is not culpable for killing a <i>neifel</i> (Rambam <i>Hilchot Rotzei’ach</i> 2:6).</i> and perhaps the child died of other, unrelated causes.
  The first reason applies to a soldier in the IDF. We should note that this ruling of the Shulchan Aruch also seems to apply to a soldier who mistakenly killed a fellow Israeli soldier in a “friendly fire” incident. Since this is an almost unavoidable, albeit tragic aspect of warfare, it would seem that in such a case a <i>kohen</i> may continue to participate in <i>nesi’at kapayim</i>, since his intentions were noble. This ruling might not apply, though, if the soldier failed to exercise proper care and caution in the action that led to the death of his comrade.9<i class="footnote">A <i>kohen</i> who, G-d forbid, killed someone due to reckless driving should consult a Rav to see if he may continue to perform <i>nesi’at kapayim</i>. See <i>Teshuvot Yechaveh Da’at</i> 6:16, <i>Teshuvot V’hanhagot </i>1:131, and Rav Ezra Basri’s essay in <i>Techumin</i> (3:250-254).</i>
  Conclusion
  Rav Waldenberg, Rav Feinstein, and Rav Yosef offer three distinct justifications for a <i>kohen</i> who killed enemy soldiers in the course of serving in the Israeli army to continue performing <i>nesi’at kapayim</i>.10<i class="footnote">Yosef Dov Soloveitchik (cited in <i>Nefesh Harav</i> p. 132) disagrees with all of the aforementioned <i>poskim</i> and rules that <i>kohanim</i> who killed as part of his service in the IDF is disqualified from performing <i>nesi’at kapayim</i>. As a precedent, he cites that David was disqualified from building the <i>Beit Hamikdash</i> because he had shed much blood (<i>Divrei Hayamim </i>1:22:8). Rav Soloveitchik apparently accepts the ruling of the Pri Megadim (O.C. 128 <i>Eishel Avraham </i>66) that even a <i>kohen</i> who killed under duress is disqualified as well as the rulings of those authorities who maintain that killing a <i>nochri</i> is included in the disqualification. He also apparently feels that the Shulchan Aruch’s dispensation in the case of the <i>brit milah</i> applies only if all three of the reasons cited by the <i>Mishnah Beruruah</i> are relevant, which is almost never the case in battle. It appears that he did not issue this ruling very often, though, as Rav Aharon Lichtenstein (reported by Rav Ezra Frazer) stated that he never heard Rav Soloveitchik do so.Rav Frazer (<i>Beit Yitzchak</i> 35:651-652) notes that the only compelling proof to Rav Soloveitchik’s approach is the <i>Zohar</i> (<i>Parashat Pinchas</i>), which, according to Rav Felder’s understanding (<i>Yesodei Yeshurun</i>,<i> Ma’arechet Nesi’at Kapayim</i> 31), teaches that Pinchas initially was disqualified from serving in the <i>mishkan</i> because he killed Zimri ben Salu (a leader of the tribe of Shimon), despite the fact that Pinchas’s intentions were for the sake of a <i>mitzvah</i> and ended up saving <i>Am Yisrael</i>.Since the Rama (O.C. 128:35; see, though, <i>Shulchan Aruch ibid</i>. and <i>Bei’ur Halachah ibid.</i> s.v. <i>Afilu Asah</i>) rules that a <i>kohen</i> can regain his eligibility if he does <i>teshuvah</i>, it seems that a <i>kohen</i> is disqualified only if he is considered to have sinned. Thus, a soldier in the Israeli army, who certainly has not sinned by killing the enemies, should not be disqualified. Thus, Rav Soloveitchik’s ruling is quite difficult to understand. Furthermore, I recall that the <i>kohanim</i> who fought in the 1982 Lebanon War continued to participate in <i>nesi’at kapayim</i> at Yeshivat Har Etzion despite the fact that Rav Soloveitchik’s son-in-law and leading student, Rav Aharon Lichtenstein, was one of the <i>roshei yeshivah</i> at that time. Following Rav Soloveitchik’s ruling would deal a significant blow to the morale of Israeli soldiers for whom it is essential to enter combat with a clear and unambiguous understanding that the battles that they wage are clearly justified both morally and halachically. (Rav Soloveitchik does not question the legitimacy of these wars, as he compares them to the wars of David.) Indeed, when <i>kohanim</i> who served during the 1982 Lebanon War asked if they may continue to perform <i>nesi’at kapayim</i>, Rav She’ar Yashuv Cohen (<i>Techumin</i> 6:31-44) responded with a resounding “Yes,” stressing the legitimacy of that war. Although Rav Soloveitchik’s ruling emerges from both his profound reverence for human life and his deep moral character, it does not seem to constitute normative halachic practice.</i> Rav Aharon Adler reports that this is the accepted practice in Israel. Indeed, Jesse Dunietz reports that Rav Aharon Lichtenstein told him that he permits IDF veterans to perform <i>nesi’at kapayim</i>.11<i class="footnote">Rav Moshe Shternbuch (<i>Teshuvot V’hanhagot</i> 1:131) records that the practice in England was to permit <i>kohanim</i> who fought in World War I to continue to participate in <i>nesi’at kapayim</i> even though they might have killed other Jews who were in the opposing armies. He does not record a contrary practice.</i>
  
  Must Diaspora Jews Make Aliyah?
  
  Reading <i>Chumash</i> should prompt Jews who voluntarily remain outside of Israel to think about this choice. We should be provoked to ponder whether we are obligated to follow the example of our ancestors and move to Israel.
  We will review this highly sensitive and emotionally charged issue from two different perspectives. The first approach will be that of Rav Moshe Feinstein and Rav Moshe Shternbuch, and the second will be that of Rav Eliezer Waldenberg and Rav Hershel Schachter.
  Rav Moshe Feinstein
  Rav Moshe Feinstein was asked (<i>Teshuvot Igrot Moshe</i> E.H. 1:102, written in 1952) whether one should move to Israel in accordance with the view of the Ramban (Bemidbar 33:53 and <i>mitzvah</i> 4 of the positive <i>mitzvot</i> omitted by the Rambam) that even in our day, every Jew is required to live in Israel, or if one should follow the opinion of Rabbeinu Chaim Cohen (cited in <i>Tosafot Ketubot</i> 110b s.v. <i>Hu Omeir</i> and the <i>Mordechai</i>, Ketubot 313) that the <i>mitzvah</i> to live in Israel does not apply today. The latter is of the opinion that since the journey to and subsequent life in Israel is fraught with danger and since it is difficult to fulfill the <i>mitzvot hatluyot ba’aretz</i> (land based <i>mitzvot</i>, which apply only in Israel), there exists no <i>mitzvah</i> to live in Israel “today” (the twelfth century).
  Rav Feinstein argues that even though most authorities agree with the Ramban, they believe that if one moves to Israel he has fulfilled a <i>mitzvah</i> (<i>mitzvah kiyumit</i>) but that there exists no absolute obligation to do so (<i>mitzvah chiyuvit</i>).1<i class="footnote">An example of a <i>mitzvah kiyumit</i> is the opinion of the Vilna Gaon (<i>Ma’aseh Rav</i> 181, cited by the Mishnah Berurah 475:45) that although there is an obligation to eat <i>matzah</i> only on the <i>seder</i> night, one fulfills a <i>mitzvah</i> every time he eats <i>matzah</i> throughout <i>Pesach</i>.</i> Rav Feinstein believes that even the Ramban believes that living in Israel is only a <i>mitzvah kiyumit</i> and not a <i>mitzvah chiyuvit</i>.
  Rav Feinstein seeks to prove that the Rambam does not believe that there is a <i>mitzvah chiyuvit</i> to move to Israel. The Rambam (<i>Hilchot Melachim</i> 5:9) writes that it is prohibited to leave Israel but does not state that one is prohibited to reside outside Israel. If an absolute obligation to move to Israel exists, writes Rav Feinstein, the Rambam would have recorded a prohibition to live outside of Israel. Rav Feinstein concludes that since there is no absolute obligation to move to Israel, one must "certainly" consider Rabbeinu Chaim Cohen's concern that one might not fulfill the <i>mitzvot hateluyot ba’aretz</i> properly.
  Rav Moshe Shternbuch
  Rav Moshe Shternbuch (<i>Teshuvot V’hanhagot</i> 1:900) adopts a somewhat similar approach to this question. He writes:
  We must weigh each case individually to see if it is appropriate for him to move to Israel, since the impact of the <i>yeitzer hara</i> (evil inclination) in the Holy Land, whose holiness is exceedingly great, is immense and very seductive. Therefore, if one has a great desire to move to Israel because his religious life outside of Israel is inadequate, it is advisable to first visit Israel and ascertain where he will live, where his sons and daughters will study, and how he will earn a livelihood, and only then he should make <i>aliyah</i>, and he will be successful in his service of Hashem in His holy palace.
  Rav Eliezer Waldenberg
  Interestingly, Rav Feinstein does not consider the impact of the establishment of the State of Israel in either a positive or negative direction. By contrast, Rav Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 7:48:12) very much takes <i>Medinat Yisrael</i> into consideration in an emotional and stirring responsum written shortly after the State was established.2<i class="footnote">Rav Waldenberg also wrote a very lengthy work entitled <i>Hilchot Medinah</i>, which discusses how to administer the State of Israel in harmony with Halachah.</i> He writes:
  With the establishment of <i>Medinat Yisrael</i>, the obligation to make <i>aliyah</i> has become magnified in two aspects. First, the barrier and obstacles of the danger to make <i>aliyah</i> have been removed, and [so has] the obstacle of the inability to earn a living in Israel to the extent of suffering to the point of starvation, G-d forbid. With the removal of these barriers, the halachic exemptions that <i>poskim</i> offer from the obligation to move to Israel are eliminated. Second, we can say the current state in which <i>Medinat Yisrael</i> finds itself – that it has now barely ‘gotten out of diapers’ and is surrounded by enemies sworn to its destruction, Heaven forfend – a special obligation devolves to “arm ourselves swiftly” (see Bemidbar 32:17) and quickly move to Israel and come to the aid of the Jewish people from the enemy that attacked them (see Rambam <i>Hilchot Melachim</i> 5:1)….Indeed, all groups that come to Israel, be they organized or not organized, obviously contribute in this effort, either directly or indirectly.
  This nationalistic element does not merit any consideration in Rav Moshe’s <i>teshuvah</i>. Moreover, Rav Waldenberg speaks of moving to Israel as a “central and fundamental <i>mitzvah</i>” and compares it to “children returning to their mother’s embrace.”3<i class="footnote">Somewhat surprisingly, though, Rav Waldenberg approvingly cites Rav Moshe’s approach to <i>aliyah</i> in <i>Teshuvot Tzitz Eliezer </i>14:72, wherein he expresses reservations about encouraging youth to make <i>aliyah</i> against their parents’ wishes.</i> Rav Moshe seems to regard the <i>mitzvah</i> of <i>aliyah</i> as essentially no different than any other <i>mitzvah</i>.
  Rav Hershel Schachter
  Rav Hershel Schachter (<i>Journal of Halacha and Contemporary Society</i> 8:14-33) adopts the approach that is characteristic of Religious Zionist halachic authorities in Israel today. Rav Schachter cites a responsum of the <i>Avnei Neizer</i> (Y.D. 2:454; though see his addendum to this responsum4<i class="footnote">In the addendum, he approvingly cites the Ritva (Yoma 38a s.v. <i>L’alexandria</i>), who asserts that “Nowadays, when it is decreed that we be scattered throughout the world, the only prohibition we have is not to move out of Israel.”</i>), who states that Rabbeinu Chaim Cohen's concerns no longer are relevant. Today, there exists a religious infrastructure that facilitates proper fulfillment of the <i>mitvot hatluyot ba’aretz</i>. No semblance of such a system existed in the days of Rabbeinu Chaim Cohen. Rav Schachter adds that "If conditions were not a hindrance when the <i>Avnei Neizer</i> penned his responsum some ninety years ago, surely now they are no problem."5<i class="footnote">See, however, the <i>Pe’at Hashulchan</i> (1), who rules (in the early nineteenth century) that moving to Israel always constitutes an obligation. It is noteworthy that he ruled thus despite the fact that in his times it was very dangerous to do so - it was not uncommon for residents of Israel to die prematurely. The author of the <i>Pe’at Hashulchan</i> himself lost his first wife and almost all of his children due to the exceedingly difficult conditions in Israel at that time.</i>
  Rav Schachter assumes that the Ramban believes that moving to Israel is an absolute obligation, not merely a <i>mitzvah kiyumit</i>. This assumption is supported by the Ramban’s words, "In my opinion, this is a positive command to live in Israel and to inherit it because it is given to us." The Pitchei Teshuvah (E.H. 75:6) and <i>Sdei Chemed</i> (<i>Ma’arechet Eretz Yisrael</i> 9), both state, “The Ramban counted it as one of the 613 <i>mitzvot</i>…and it applies in all times…and such is the opinion of all the earlier and later <i>poskim</i>.” This appears to corroborate Rav Schachter’s approach.
  Rav Schachter summarizes the many opinions regarding the Rambam’s celebrated omission of the <i>mitzvah</i> of living in Israel from his list of the 613 <i>mitzvot</i>. He presents opinions (cited by <i>Sdei Chemed Ma’arechet Eretz Yisrael</i> 2) that the Rambam believes that the mitzvah to live in Israel is rabbinic and therefore does not list it as one of the 613 <i>mitzvot</i>. Rav Schachter then cites the <i>Avnei Neizer</i> (in his aforementioned responsum), who asserts that once the Rambam counted the <i>mitzvah</i> of conquering the seven nations who lived in Israel prior to the conquest of Yehoshua (Devarim 20:17), he did not find it necessary to count the actual conquest and settlement as a separate <i>mitzvah</i>.
  Rav Schachter questions the approach of the <i>Megillat Ester</i>, who asserts that the Rambam does not list this <i>mitzvah</i> because it applies only in biblical and messianic times. At present, claims the <i>Megillat Ester</i>, we are bound by the oath imposed on the Jewish people not to take <i>Eretz Yisrael</i> by force (Ketubot 111a).6<i class="footnote">The opinion of the <i>Megillat Ester</i> is the cornerstone of the Satmar Rebbe’s opposition to the establishment of the State of Israel prior to the arrival of <i>Mashiach</i>.</i> Rav Schachter cites the <i>Avnei Neizer</i>'s disproof of the <i>Megillat Ester</i> - that the Rambam includes separating <i>terumot</i> (the <i>Kohen</i>’s tithe) and <i>ma’aserot</i> (other tithes) in his count of the 613 <i>mitzvot</i> despite the fact that it does not apply today on a Torah level according to the Rambam himself (<i>Hilchot Terumot</i> 1:26).
  Rav Schachter further notes that the <i>Megillat Ester</i>'s assertion is shocking, because it essentially states that in messianic times, a new <i>mitzvah</i> will be added to the Torah, namely, a <i>mitzvah</i> to live in Israel. The Rambam lists as one of the thirteen principles of faith that no new <i>mitzvot</i> can ever be added to the Torah. Rav Schachter concludes, “In view of the difficulties inherent in the approach of the <i>Megillat Esther</i>, most <i>Acharonim</i> conclude that <i>Yishuv Eretz Yisrael</i> constitutes a <i>mitzvah</i> according to both Ramban and Rambam.” We may add that the relevance of the <i>Megillat Esther</i>’s approach is diminished in light of Rav Meir Simchah of Dvinsk’s statement (cited in the <i>Encyclopedia Talmudit</i> 25:669 footnote 58) that the oath does not apply after the League of Nations endorsed the Balfour Declaration recognizing the right of the Jewish people to establish a homeland in <i>Eretz Yisrael</i>.7<i class="footnote">The <i>Aveni Neizer</i> similarly argues that if Jews have permission to move to Israel, the oath does not apply.</i> As such, establishing Jewish sovereignty there is no longer considered taking it by force.8<i class="footnote">Rav Shlomo Aviner, in his <i>Kuntress Shelo Ya’alu Bachomah</i> (printed at the end of his <i>Hilchot Mashiach</i>) presents thirteen reasons why the oath does not pose an impediment to the creation of the State of Israel or moving to it. </i>
  Rav Schachter therefore concludes that most <i>Acharonim</i> are of the opinion that living in Israel constitutes an obligatory <i>mitzvah</i>, even nowadays, according to both the Rambam and the Ramban. Rav Schachter concludes his essay, “Every period of history has its own <i>mitzvot </i>of the hour. Today, when every Jew settling in Israel contributes measurably to the security and economy of the State, and to the Jews in it, <i>Yishuv Eretz Yisrael</i> may indeed be called a <i>mitzvah</i> of the hour.”9<i class="footnote">Rav Schachter, though, does outline circumstances that would excuse a person from the obligation to move to Israel.</i>
  Reb Tzvi Glatt’s Mei’afar Kumi
  It should be noted that Reb Tzvi Glatt10<i class="footnote">Reb Tzvi was a student at Yeshivat Mercaz Harav who moved to Israel from Brooklyn at age sixteen and was murdered by Arab terrorists in Chevron in 1980.</i> wrote a very special <i>sefer</i> entitled <i>Mei’afar Kumi</i> in response to Rav Feinstein's <i>teshuvah</i>. Reb Tzvi reviews the many <i>Rishonim</i> and <i>Acharonim</i> who comment on the <i>mitzvah</i> of living in Israel and concludes that the overwhelming majority rejects Rav Feinstein's approach to this question.11<i class="footnote">Incidentally, Rav Feinstein wrote a letter of approbation to this book, although he notes that he maintains his ruling and believes that Reb Tzvi “exaggerates.” </i> Reb Tzvi writes that he spoke to many of the great authorities in <i>Eretz Yisrael</i>, including Rav Shlomo Zalman Auerbach (as indicated in <i>Teshuvot Minchat Shlomo</i> 3:158:3), Rav Yosef Shalom Eliashiv (see, though, <i>Kovetz Teshuvot</i> 2:14), and Rav Yitzchak Yaakov Weisz, and they all agreed that there is an obligation upon everyone to move to Israel, even nowadays, if he can make a living. Indeed, Rav Ovadia Yosef, in his letter of approbation to <i>Mei’afar Kumi</i>, approves Reb Tzvi’s approach (consistent with his ruling in <i>Teshuvot Yechaveh Da’at</i> 4:49).
  Conclusion
  The question of whether one should make <i>aliyah</i> is complex and depends to some extent on one’s <i>hashkafah</i> regarding <i>Medinat Yisrael</i> specifically and Jewish nationalism in general. There are special circumstances to be considered,12<i class="footnote">The Pitchei Teshuvah (E.H. 75:6) cites the <i>Teshuvot Mabit</i>’s (2:216) ruling that an area is considered dangerous if merchants do not go there for business. Accordingly, if merchants go to Israel for business, it is not considered dangerous.</i> as we see that even the Pitchei Teshuvah and <i>Sdei Chemed</i> cite authorities who rule that one is not obligated to move to Israel if he is able to earn a living outside of Israel but is not able to do so in Israel. They cite the Gemara's (Shabbat 118a) rule, “<i>Aseih shabatecha chol v’al yitztareich laberiyot</i>” (it is better to eat weekday food on Shabbat than to be reliant on charity) as support for this assertion.
  Nonetheless, we cannot be complacent regarding our decisions concerning the <i>mitzvah</i> of living in <i>Eretz Yisrael</i>. Indeed, <i>Chazal</i> (Ketubot 110b-112b) greatly extol the <i>mitzvah</i> of living in Israel. Moreover, <i>Chazal</i> (Ketubot 110b, codified by the Shulchan Aruch E.H. 75:1) view one spouse’s refusal to fulfill the <i>mitzvah</i> to live in Israel as potential grounds for divorce, and they even permit asking a non-Jew to write on Shabbat to facilitate fulfillment of this <i>mitzvah</i> (Gittin 8b, cited by the Rambam, <i>Hilchot Shabbat</i> 6:11). Rav Aharon Lichtenstein (in a personal conversation) framed the issue succinctly: Just as a Jew would find it painful to live without <i>kedushat hazman</i> (holiness of time, such as Shabbat and <i>Yom Tov</i>), he should find it painful to live without the <i>kedushat makom</i> (holiness of space) of the land of Israel.13<i class="footnote">We must also consider Reish Lakish’s harsh criticism of the Jews of Babylon, who for the most part did not return to Israel when given the opportunity to do so (Yoma 9b). Rav Yehudah Halevi (<i>Sefer Hakuzari</i> 2:23-24) similarly criticized the Jews of his generation for failing to make <i>aliyah</i>. </i>
  
  Halachic Process
  
  Beit Din Explaining Decisions
  
  In the Western world judges are expected to offer reasoned decisions for their rulings, which can be reviewed by an appellate court. They thereby publicly demonstrate that their decisions were not made arbitrarily, but rather were the result of a well-thought out and well-founded approach. This practice is a hallmark of a democratic government, a system in which leaders are subject to scrutiny, and transparency in leadership is very much expected.
  In this chapter, we will discuss the halachic attitude toward a <i>beit din</i> revealing the logic behind its rulings. We shall discuss the classic sources in this regard as well as the practices of contemporary <i>batei din</i> in both Israel and the United States.
  <i>Sanhedrin</i> 29a – No Explanation Required<i></i>
  <i>Chazal</i> do not require a <i>dayan</i> (rabbinic judge) to explain the reasons for his decisions. The Mishnah (Sanhedrin 3:7) presents the procedure for a <i>beit din</i> issuing its decision: “The most prominent of the judges announces, ‘Mr. so-and-so, you have prevailed, and Mr. so-and–so, you are liable.’” No mention is made of a requirement for the <i>beit din</i> to offer explanations for its decision. In fact, the Shulchan Aruch (C.M. 19:2) states that when one of the litigants requests a written decision, the <i>beit din</i> writes, “So-and-so came with so-and-so his fellow litigant before <i>beit din</i>, and it emerged from their words that so-and-so was victorious and so-and-so was liable.” No mention is made of a requirement to explain the decision.
  <i>Sanhedrin</i> 31b and Bava Metzia 69 – Two Possible Exceptions<i></i>
  Despite the absence of any general requirement for a <i>beit din</i> to explain its decision, the Gemara addresses two exceptional situations in which it is expected that a <i>beit din</i> offer reasons for its decision. The Gemara (Sanhedrin 31b) speaks of two belligerent litigants who are fighting as to where their dispute should be adjudicated. One litigant insists that the local <i>beit din</i> decide the matter, while the other demands that the case be brought to the “<i>mekom hava’ad</i>” for adjudication. Rashi (<i>ibid</i>. s.v. <i>Hatokeif</i>) explains that the <i>mekom hava’ad</i> is an assemblage of many eminent Torah scholars.
  The Gemara states that the local <i>beit din</i> may coerce the litigant to arbitrate the matter therein. The Gemara concludes that if the party that wished to go to the <i>mekom hava’ad</i> asks that the local <i>beit din</i> present the reasons for its decision, the <i>beit din</i> writes and delivers it to him. <i>Tosafot</i> (ad. loc. s.v. <i>V’im</i>) state that a litigant enjoys the right to demand an explanation of the decision only if he was coerced to litigate his case in the local <i>beit din</i>. The written decision enables him to bring the decision to the <i>mekom hava’ad</i> or a <i>beit din gadol</i> (rabbinic court of eminent stature) for review.1<i class="footnote">See our later chapter regarding the circumstances in which a decision may be appealed and/or reversed.</i> Otherwise, a <i>beit din</i> is not obligated to honor a request for an explanation of its decision.
  Another case (Bava Metzia 69a-69b) is interpreted by the first opinion in <i>Tosafot</i> (<i>ibid</i>. 69b s.v. <i>Ki Hai Gavna</i>) as presenting another situation in which <i>beit din</i> should offer a reason for its decision. The Gemara describes a case in which one partner in a business venture divided the profits without the consent of the second partner. Rav Papa ruled that the first partner was entitled to do so. Subsequently, the two men partnered to sell wine, and the second partner divided the wine without the first partner’s consent. Rav Papa ruled that the second partner was not entitled to do this, since he might have not divided the wine fairly.
  The second partner complained to Rav Papa that he seemed to always side with the first partner. Rav Papa responded, according to <i>Tosafot</i>’s first interpretation, that in such a situation one must present a reason for his decision, which Rav Papa proceeded to give. <i>Tosafot</i> explain that in such a situation, in which there is a basis for a litigant to suspect the <i>beit din</i> of bias, the <i>beit din</i> should reveal its logic in order to “be clean in the eyes of Hashem and Israel” (Bemidbar 32:22). The <i>Sema</i> (14:23) clarifies, though, that this applies only if there is a reasonable basis for the charge of bias, as there was in Rav Papa’s case.2<i class="footnote">A second opinion in <i>Tosafot</i>, however, does not interpret Rav Papa in a manner that requires a <i>beit din</i> to clarify its grounds in such a case. </i>
  <i>Shulchan Aruch</i>, Rama and <i>Sema</i>
  The <i>Rishonim</i> and <i>Acharonim</i> offer different approaches towards <i>beit din</i> revealing the rationale for its judgment, with some authorities expanding the obligation to present reasoning and others limiting it. The Shulchan Aruch (C.M. 14:1 and 4) codifies both the passage from Sanhedrin 31b (requiring explanation in case of coercion to litigate in the local <i>biet din</i>) and the first opinion in <i>Tosafot</i> (Bava Metzia 69b, requiring the <i>beit din</i> to reveal its logic in cases of suspected biases). The <i>Sema</i> (14:25) adds that even when the <i>beit din</i> is not obligated to disclose its logic, it will do so upon request. This does not seem to constitute an obligation upon <i>beit din</i>, but rather seems to be the appropriate and “righteous” step to take.
  The Rama (ad. loc.), however, places three limitations on the obligation for <i>beit din</i> to explain its decision in case of suspicion. First, <i>beit din</i> is not obligated to disclose its logic by a specific time. Rather, whenever it finds the opportunity to do so, it presents its reasoning. Second, the <i>beit din </i>needs merely to write the respective claims of the litigants and the ruling of the <i>beit din</i>, not the reasons for that ruling. Finally, the Rama states that only a lower <i>beit din</i> must explain its reasoning. A <i>beit din gadol</i> need not state its reasoning “because we are not concerned for error, for if we were, there would be no end to the matter.”
  The <i>Sema</i> (14:24), though, rules that the second limitation to the case applies only when a litigant seeks to appeal a case to a <i>beit din gadol</i>. An eminent <i>beit din</i> will be able to discern the basis for the ruling based on the facts of the case as presented by the lower <i>beit din</i> without any explanation. He argues that in a case of suspicion, <i>beit din</i> should reveal its logic as well.3<i class="footnote">We should also note that the Pitchei Teshuvah (C.M. 14:10) cites the <i>Teshuvot Chavot Ya’ir</i> (in the addendum) as strongly questioning this limitation of the Rama.</i>
  <i>Noda Biy’hudah </i>and <i>Chatam Sofer</i>
  Two major late-seventeenth- and early-eighteenth-century authorities, the <i>Noda Biy’hudah</i> and <i>Chatam Sofer</i>, adopt different approaches as to whether <i>beit din</i> should disclose or withhold explanation. The <i>Noda Biy’hudah</i> (2 C.M. 1, cited by the Pitchei Teshuvah C.M. 14:11), in a characteristically brief but powerful responsum, enlarges the obligation by expanding the definition of coercion in this context. He states that as long as a litigant had to be summoned to <i>beit din</i>,4<i class="footnote">See <i>Gray Matter 2</i> pp. 179-183 for a discussion of how and when these summonses are sent.</i> he is considered to be coerced, requiring <i>beit din</i> to state the claims and ruling in order to facilitate an appeal with a <i>beit din gadol</i>. He adds that this is necessary, “especially in our generation, when mistakes occur frequently.” He also limits a <i>beit din gadol</i>’s exemption from presenting reasons to a court in which each member is a Rav of eminent stature who is renowned for his Torah scholarship. He concludes the responsum with an exceptionally strong statement: “I do not suspect any Rav will refrain from doing so (revealing his reasoning) unless he knows that in truth he did not judge properly, whether deliberately or negligently, and is arrogant and ashamed to acknowledge the truth that he has erred.”
  The <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> C.M. 12, cited by the Pitchei Teshuvah C.M. 14:8), however, seeks to limit the obligation on <i>beit din</i> to disclose its logic. He writes:
  Granted, it is appropriate and proper for a <i>dayan</i> to explain his reasoning to remove any suspicion of impropriety. Nevertheless, a litigant is not authorized to make such a demand on a judge, and it is audacious of him to tell the <i>dayan</i> that he suspects him of wrongdoing. If he does make such a demand, the <i>dayan</i> should neither reveal his reasoning nor respond to the charge. Only if the litigant refrains from articulating his suspicion due to reverence and respect for the <i>dayan</i> is it proper for the <i>dayan</i> to take the initiative to explain his reasoning in order to extricate himself from suspicion.
  These disparate approaches reflect the tension between two competing goals. On the one hand, <i>beit din</i> pursues truth and seeks to preserve its stellar reputation. On the other hand, we are obligated to revere and respect <i>dayanim</i>. Each approach seeks to achieve a balance in the effort to accomplish both goals.
  Contemporary <i>Beit Din</i> Practice
  It seems that the approach limiting the obligation to present reasons prevailed in the age prior to the twentieth century. Rav Gedalia Schwartz told me that it is evident from the responsa literature that in most cases, <i>beit din</i> did not articulate the basis for its ruling. He noted that one only need look at classic works of responsa and notice that the Choshen Mishpat5<i class="footnote">Choshen Mishpat is the part of Shulchan Aruch that deals with monetary law.</i> sections in these works are much smaller than the other sections.6<i class="footnote"><i>Teshuvot Avnei Neizer</i> is one example of this phenomenon.</i>
  Beginning in the twentieth century, however, things began to change. Sir Herbert Samuel,7<i class="footnote">Sir Samuel is cited in Professor Eliav Schochetman’s essay on this topic, which appears in <i>Shenaton Hamishpat Ha’ivri</i> (6-7:355).</i> the first high commissioner of the British Mandate over <i>Eretz Yisrael</i>, pressured the Chief Rabbinate to create rabbinic courts of appeal as a prerequisite for the British authorities recognizing the rulings of any <i>beit din</i>. Samuel stressed the need to inspire confidence in <i>beit din</i> among the Jewish population. The Chief Rabbis at the time of the establishment of <i>Medinat Yisrael</i>, Rav Yitzchak Herzog and Rav Ben-Zion Uzziel, responded very positively to this request. Rav Uzziel writes (<i>Teshuvot Mishpetei Uzziel</i> C.M. 1):
  There is a greater obligation in our times [for <i>beit din</i> to disclose its reasons], since civil courts explain their rulings with proofs to their decisions, and this enhances their reputations in the eyes of the people. Why should we not act similarly to inspire confidence in the eyes of the nation?…It is appropriate for all <i>beit din</i> decisions, except for conventional and simple cases, to present a summary of the respective arguments of the litigants and the reason for the decision in order to provide the opportunity for appellate court review and to teach Torah law to the nation.8<i class="footnote">According to this approach, reasons should be given even for <i>pesharah </i>and<i> pesharah krovah l’din</i> (equity and compromise) decisions, since these rulings also should not be made arbitrarily, as explained in <i>Gray Matter 2</i> pp. 193-200.</i>
  Rav Herzog (cited in Professor Eliav Shochetman’s <i>Seder Hadin</i> p. 370) writes that even the <i>Beit Din Hagadol</i> (the Israeli Supreme Rabbinical Court) should write the basis for its decision, “in order to set an example for others and, besides, this practice has manifold benefits.”9<i class="footnote">Indeed, some Israeli rabbinic court decisions have been printed and published in a collection entitled <i>Piskei Din Rabbaniyim</i>. This series is greatly respected and is a major contribution to the responsa literature. </i>
  In practice, however, many Israeli <i>dayanim</i> do not heed the call of Rav Herzog and Rav Uzziel, following instead the traditional system of refraining from offering an explanation for their rulings. Indeed, Professor Shochetman (ad. loc.) writes, “The facts show that in many cases, <i>dayanim</i> do not include reasons for the decisions they issue.”10<i class="footnote">Professor Shochetman published this assessment in 1988.</i>
  In 1999, responding to the situation described by Professor Shochetman, Rav Tzvi Yehudah Ben Yaakov, a member of the Haifa rabbinic court, renewed the call for <i>batei din</i> to elucidate the reasons for their decisions. He writes (<i>Techumin</i> 19:234): “In our times, one may assume that all <i>dayanim</i> are suspected by the religious public and certainly by the secular public….The broader community suspects that <i>dayanim</i> do not investigate matters thoroughly and rule simply based on impressions and arbitrary reasoning.”
  Conclusion – The Practice in America
  Rav Ben Yaakov’s call has been heeded among some <i>dayanim</i> who recognize the need for <i>beit din</i> to inspire confidence in the community so that people will choose <i>beit din</i> as the venue to resolve disputes instead of using civil courts, which violates a severe prohibition.11<i class="footnote">See <i>Gray Matter 2</i> pp. 164-178 for a discussion of the parameters of this prohibition.</i> Indeed, a number of American <i>dayanim</i> routinely write explanations of their rulings. It should be noted, though, that sometimes it is in the best interest of both parties for the <i>dayanim</i> to refrain from explaining their decision. Thus, the Beth Din of America’s protocols do not include a requirement that <i>dayanim</i> present the reasons for their verdicts.12<i class="footnote">The American Arbitration Association (a leading organization of arbitrators in the United States) advises arbitrators in certain types of cases to refrain from explaining the basis for their decisions. They recommend this both to ensure expediency and to avoid frivolous attempts to have the ruling reversed by civil court (communication from the American Arbitration Association).</i> If the parties notify the <i>beit din</i> before the hearing that they desire an elucidation of the reasoning behind the decision, the <i>beit din</i> will likely agree to that request.
  
  Appealing a Halachic Decision
  
  In this section, we will discuss the parameters of when Halachah permits a second Rav to appeal or reverse a halachic decision of another Rav.1<i class="footnote">For further discussion of the parameters of when a halachic decision may be reversed, see <i>Encyclopedia Talmudit</i> 8:507-510.</i> In this context, we will also discuss the institution of the Rabbinical Court of Appeals that functions in Israel under the auspices of the State of Israel’s Chief Rabbinate.2<i class="footnote">For further discussion of this fascinating institution, see Rav J. David Bleich’s <i>Contemporary Halakhic Problems IV</i>:17-45 and Professor Eliav Shochetman’s <i>Seder Hadin</i> pp. 443-470.</i>
  The Gemara’s Story of Yalta
  The Gemara (Niddah 20b) relates that Yalta, the wife of Rav Nachman and a remarkable Talmudic figure in her own right, once brought <i>dam </i>(blood) to Rabbah bar bar Chanah to determine whether it rendered her a <i>niddah</i>.3<i class="footnote">See <i>Tosafot</i> ad. loc. s.v. <i>Kol</i>, Rosh to <i>Nega’im</i> 2:5, Shach Y.D. 187:5, and <i>Teshuvot Yabia Omer</i> 6 Y.D. 18 for a discussion of why she did not consult her eminent husband for a halachic decision.</i> Rabbah bar bar Chanah ruled that it did render her a <i>niddah</i>. Yalta appealed the ruling to Rav Yitzchak the son of Rav Yehudah, who ruled that she was not a <i>niddah</i>.
  The Gemara is troubled by Rav Yitzchak’s ruling in light of the principle that once a Rav has ruled, it is forbidden for another Rav to reverse the decision of his colleague. The Gemara therefore explains that Rav Yitzchak at first told Yalta that she should follow Rabbah bar bar Chanah’s ruling. Yalta, however, explained to Rav Yitzchak that Rabbah had routinely ruled that the shade of <i>dam</i> that she had shown him did not render her a <i>niddah</i>. It seemed, argued Yalta, that in this instance, Rabbah bar bar Chanah’s eyesight had been impaired, preventing him from rendering an accurate decision. Rav Yitzchak accepted this argument and only then ruled that Yalta was not a <i>niddah</i>. Thus, Yalta’s situation differed from a typical situation of one Rav attempting to reverse another’s decision.
  Limitations on the Second Rav
  The <i>Rishonim</i> offer various theories for why Halachah generally imposes limits on the second Rav. Rashi (ad. loc. s.v. <i>Mei’ikara</i>) indicates that the rule stems from concern for the dignity of the first Rav who was consulted, while the Ran (Avodah Zarah 1b-2a in the pages of the Rif, s.v. <i>Hanish’al</i>) explains that reversal makes it “appear as if there are two Torahs.” The Ran also quotes from the Ra’avad that when one presents an issue to a Rav, he binds himself to the jurisdiction of that Rav, creating an obligation equivalent to that of a <i>neder </i>(vow). This Talmudic concept is referred to as “<i>Shavya anafsheih chaticha d’issura</i>,”- “He has established the item as prohibited for himself.”
  <i>Tosafot</i> (Niddah 20b s.v. <i>Agamrei</i>) are troubled by Yalta’s apparent violation of the Gemara’s (Avodah Zarah 7a) rule that if one posed a question to a Rav and received a strict ruling, he may not appeal the decision to another Rav. Even if Rav Yitzchak was allowed to reverse Rabbah bar bar Chanah’s decision, how was Yalta permitted to ask him to do so? <i>Tosafot</i> explain:
  The prohibition devolves on the Rav, not on the individual posing the question. The questioner may ask as much as he wishes – he will merely cause the second Rav to investigate the matter more thoroughly, and sometimes, as a result, it will be discovered that the first Rav erred.
  In other words, there is no prohibition to appeal a decision, but it has little purpose in most cases, because a Rav cannot reverse a decision under normal circumstances.
  <i>Tosafot</i> in Avodah Zarah (7a s.v. <i>Hanish’al</i>), though, take a more restrictive approach to this issue. They resolve the inconsistency by explaining that the prohibition applies only when the questioner does not disclose to the second Rav that he previously received a strict ruling from another Rav. Since Yalta told Rav Yitzchak that she already received a ruling from Rabbah bar bar Chanah, she was permitted to ask him to reevaluate the situation. <i>Tosafot</i> also state that the second Rav is forbidden to reverse the first Rav’s decision unless he succeeds in convincing the first Rav that he erred. <i>Tosafot</i> in Niddah, by contrast, appear to permit the second Rav to reverse the first Rav’s decision even in the absence of the latter’s consent.
  Rama and <i>Acharonim</i>
  The Rama (Y.D. 242:31), following the Ran,4<i class="footnote">Also see <i>Tosafot</i> to Chullin 44b s.v. <i>Heichi</i>, who present a similar approach.</i> offers a compromise between the two approaches of <i>Tosafot</i>. He rules that the second Rav may overrule the first Rav if the first made a blatant mistake – an error in “<i>devar mishnah</i>,” accepted halachic practice. Additionally, if the second Rav believes the first to have made an error in judgment – what the Gemara calls “<i>ta’ut beshikul hada’at</i>”5<i class="footnote">See Sanhedrin 33a, Rosh to Sanhedrin 4:6, and Shulchan Aruch C.M. 25:2 for the parameters of what is considered <i>shikul hada’at</i> in contradistinction to <i>devar mishnah</i>.</i> – the former should attempt to convince the latter to retract his ruling.6<i class="footnote">The <i>Chochmat Adam</i> (104:6) clarifies that if the second Rav “cannot support his argument with proofs, the [original] strict ruling remains in effect even if the [first] Rav retracts his ruling, since the item already has been established as prohibited.”</i> If the first Rav refuses to retract, though, the second Rav may not reverse the decision of the first.
  The Shach (Y.D. 242:53) cites differing opinions among the <i>Rishonim</i> as to whether the second Rav is authorized to reverse the decision of the first if the former is of greater stature. The lenient view maintains that the greater Rav is indeed authorized to do so, even in a matter of <i>shikul hada’at</i>. The <i>Aruch Hashulchan</i> (Y.D. 242:62) is inclined to follow this approach, arguing that the reasoning of a more eminent Rav should be considered more compelling.7<i class="footnote">The <i>Chochmat Adam</i> (104:6) also presents the lenient position as the primary one.</i> Indeed, superior reasoning ability is often the basis for regarding a particular Rav as greater than his colleagues. On the other hand, Rav Ovadia Yosef (<i>Taharat Habayit </i>1:323) rules in accordance with the <i>Rishonim</i> who forbid even a great Rav to reverse the halachic decisions of a Rav of a lesser stature unless the first Rav erred in a <i>devar mishnah</i>. Needless to say, it is often exceedingly difficult to decide which Rav is of greater stature.
  No restrictions apply, however, if the first individual who rendered a decision was a Torah scholar but not qualified to render halachic decisions (<i>lo higia l’hora’ah</i>). As the <i>Aruch Hashulchan</i> notes, the halachic decisions of such an individual are considered null and void. Of course, it is difficult at times to determine if someone is regarded as <i>lo higiah l’hora’ah</i>. Obviously, each Torah scholar and Rav must be honest with himself and refrain from issuing rulings when it is not appropriate for him to do so.
  The <i>Aruch Hashulchan</i> (Y.D. 242:62) rules that if the Rav is the <i>mara d’atra</i> (Rav of the area or synagogue),8<i class="footnote">The concept of <i>mara d’atra</i> appears in Shabbat 19b, Eruvin 94a, Pesachim 30a, and Chullin 53b.</i> he may reverse a decision issued in violation of his jurisdiction.9<i class="footnote">Conversely, it appears that the decisions of the <i>mara d’atra</i> cannot be reversed even by a Rav of greater stature.</i> It is essential to show proper respect for the authority of a community’s <i>mara d’atra</i>. Rav Hershel Schachter extends this so far as to state that one should not observe a <i>chumrah </i>(stringency) that the Rav of his shul does not observe. Rav Schachter gives the example of standing for <i>keriat hatorah</i>, which essentially is not required by Halachah (see Shulchan Aruch O.C. 146:4).
  If a Rav rendered a halachic decision for a Sephardic Jew in accordance with Ashkenazic authorities but in conflict with Rav Yosef Karo, Rav Ovadia Yosef (<i>Taharat Habayit</i> 1:331) writes that the decision may be overturned, because Rav Yosef Karo is viewed as the <i>mara d’atra</i> of all Sephardic Jews.
  The Israeli Rabbinical Court of Appeals
  The concept of a court of appeals is widely accepted in the Western world as a basic element of a fair judicial system. Accordingly, beginning in 1921, originally upon the insistence of the British Mandatory Authority, the Israeli Chief Rabbinate’s system of rabbinic courts has included a Supreme Rabbinical Court of Appeals. Rav Avraham Yitzchak Hakohen Kook and Rav Ben-Zion Uzziel (<i>Teshuvot Mishpetei Uzziel </i>C.M. 1), the Chief Rabbis of <i>Eretz Yisrael</i>, endorsed the establishment of this institution. Rav Uzziel sees this as an example of incorporating positive ideas from <i>nochrim</i> (non-Jews) into the Torah system.10<i class="footnote">The Gemara (Megillah 9b) refers to this as “<i>Yafyuto shel Yefet yishkon b’aholei Sheim</i>.”</i> Many in the <i>Chareidi</i> community, however, object to this institution, viewing it as an inappropriate emulation of foreign systems of law. Rav Moshe Shternbuch (<i>Teshuvot V’hanhagot</i> 1:796), for instance, writes, “The great rabbis of Israel vigorously protested the establishment of the Rabbinical Court of Appeals as nothing but an imitation of foreign legal systems.”
  Many eminent <i>poskim</i> have sat on this special <i>beit din</i>, including Rav Zalman Nechemia Goldberg, Rav Yitzchak Herzog, Rav Eliezer Waldenberg, and Rav Ovadia Yosef.11<i class="footnote">Hundreds of this beit din’s rulings are cited throughout Professor Eliav Shochetman’s Seder Hadin. Many of these decisions involved the reversal or modification of the rulings of lower batei din.</i>
  The Halachic Basis for the Court of Appeals
  Scouring all of the Talmud, <i>Rishonim</i>, and <i>Acharonim</i> yields no explicit mention of a <i>beit din</i> of appeals in a halachic context.12<i class="footnote">Although the <i>Seforno</i> understands Shemot 18:21 as presenting a system of appeals, the <i>Seforno</i> is generally seen as a commentary meant to explain verses in the Torah, not as a halachic source.</i> Indeed, the Gemara (Bava Batra 138b) states, “<i>Beit dina batar beit dina lo dayki</i>,” “One <i>beit din</i> does not challenge the ruling of another,” which serves as the basis for both the <i>Sema</i> (C.M. 19:2) and the Shach (C.M. 19:3) to forbid a <i>beit din</i> to rehear a case that another <i>beit din</i> already has judged. Nonetheless, rabbinic courts of appeals functioned in a number of Jewish communities before the twentieth century (as noted by Rav Bleich, <i>Contemporary Halakhic Problems IV</i>:21-24). Indeed, the Gemara itself (Sanhedrin 33a) provides criteria for when a judicial decision may be reversed, and it records cases (ibid. and Ketubot 50b) in which this actually was done. Thus, <i>beit din</i> decisions may be reversed, but there appears to be no traditional formal system for doing so.
  Rav Ovadia Yosef (<i>Teshuvot Yabia Omer </i>2 C.M. 2) justifies the institution of the Supreme Rabbinical Court of Appeals with several arguments. First, the Gemara states only that a rabbinic court “does not” review the decisions of another rabbinic court. Rav Ovadia understands this to mean that their practice was not to do so, but not that it is forbidden to do so.
  Second, the Shach and the <i>Sema</i> prohibit only rehearing a case from the beginning. However, Rav Ovadia writes, it is entirely permissible for a second <i>beit din</i> to review the reasons the original <i>beit din</i> gave for its decision and to see if it erred in its decision.
  Finally, since it has become accepted practice to maintain a supreme rabbinical court of appeals, it is understood that the <i>dayanim </i>in the lower <i>batei din </i>issue their decisions only on condition that their rulings are not reversed by the Appeals <i>beit din</i>. Indeed, we saw earlier that the <i>Aruch Hashulchan</i> is inclined to rule that a Rav of greater stature (which the Appeals <i>beit din</i> should be) may always overturn the rulings of a Rav of lesser stature. In addition, since the institution of the Appeals <i>beit din</i> appears in the <i>takanot hadiyun </i>(Rules of Conduct) for the State of Israel Rabbinic Courts, all litigants accept in advance that the Appeals <i>beit din</i> may legitimately reverse the decision of the lower <i>beit din</i> (see <i>Piskei Dinim Rabbaniyim</i> 10:180). The <i>takkanot hadiyun</i> of 5753 (section 135) allow for the Appeals <i>beit din</i> to reverse the decision of the lower <i>beit din</i> if there is either a halachic error, an obvious error in judgment or establishment of the facts, or procedural mistakes that affect the results of the litigation.13<i class="footnote">Rav J. David Bleich (<i>Contemporary Halakhic Problems IV</i>:44) observes that these categories can be understood as conforming with the Gemara’s (Sanhedrin 33a) standards for when a <i>beit din</i>’s ruling may be reversed. The establishment of the Appeals <i>beit din</i>, accordingly, merely formalizes a mechanism presented in the Gemara. However, some <i>Rishonim </i>permit reversal only if the original <i>beit din</i> concedes that it erred. These <i>Rishonim</i> might agree, though, that a <i>beit din </i>of greater stature may reverse the decision even without the consent of the original <i>beit din</i>.</i>
  Rav Ovadia Yosef observes that the Supreme Rabbinical Court of Appeals has worked quite well, and “many times it is found that the lower <i>beit din</i> has erred.” He adds that the Appeals <i>beit din</i> “performs a great <i>mitzvah</i> by insuring proper justice.” Indeed, Rav Yosef Dov Soloveitchik has stated that history can sometimes resolve a <i>hashkafic</i> or halachic dilemma (<i>Nefesh Harav</i> p. 88).14<i class="footnote">See the chapter dealing with incorporating Torah verses into songs and the chapter dealing with the role of archaeology in Halachah for further applications of this assertion.</i> Accordingly, the question of the propriety of the Appeals <i>beit din</i> might be resolved by the fact that it has worked well for many decades.
  Conclusion
  In certain cases, Halachah provides for the reversal of halachic authorities’ decisions in both ritual and monetary matters. However, the authorities of the past did not institute a formal system for making such appeals. It is possible that Halachah has allowed each community to establish its own mechanisms for appealing halachic rulings. In Israel, Rav Ovadia Yosef reports that the institution of a Supreme Rabbinical Court of Appeals has worked well for many decades, and this model could be emulated by Jewish communities elsewhere as well. Indeed, the rules and procedures of the Beth Din of America (available at www.bethdin.org) provide for appealing rulings to the <i>Av Beit Din</i> (chief justice).15<i class="footnote">Rav Ronald Warburg informs me that the <i>Av Beit Din</i> actually has reversed some decisions.</i>
  
  The Role of Archaeology in Halachic Decision Making
  
  A very exciting and relatively new area of halachic concern is the potential effect of archaeological discoveries upon halachic decision-making. The areas of possible impact include proper positioning of <i>mezuzot</i>, <i>mikveh</i> construction, identification of <i>techeilet</i>, the proper time for <i>megillah</i> reading, and the weight of coins used for <i>pidyon haben</i> (redemption of the firstborn).1<i class="footnote">The Torah (Bemidbar 18:15-16) requires that a firstborn male child be “redeemed” by giving five <i>shekalim</i> to a <i>kohen</i>.</i> We will discuss the extent to which Halachah accords credibility to archaeological discoveries and conclusions.
  Four Classic Discussions
  Four classic cases in the Gemara and <i>Rishonim</i> raise the question of the halachic utility of archaeological discoveries. First, the Gemara (Bava Batra 73b-74a) relates that Rabbah bar bar Channah was once traveling in the desert with an Arab guide, who directed him to the graves of the <i>dor hamidbar</i> (those who died during <i>Am Yisrael</i>’s forty-year sojourn in the desert). Rabbah bar bar Channah sought to remove the <i>tzitzit</i> from one of the bodies, hoping to bring it to the <i>beit midrash</i> for scrutiny by the sages, but his efforts failed. When he returned, his colleagues chided him, saying that if he simply wanted to determine whether Halachah follows Beit Shammai or Beit Hillel regarding the number of strings on the <i>tzitzit</i>, he merely had to examine the <i>tzitzit</i> and report his findings, not try to remove a sample.
  Rav Hershel Schachter (<i>Nefesh Harav</i> p. 53 footnote 26) notes that <i>Chazal</i> were willing to consider the <i>tzitzit</i> of the <i>dor hamidbar</i> in deciding between Beit Shammai and Beit Hillel. Apparently, they believed that we may consider archaeological evidence in rendering halachic decisions. On the other hand, Rav Chaim Kanievsky (<i>Ta’ama D’kra</i>, <i>Parshat Shelach</i>) and Rav Shlomo Aviner (<i>Iturei Kohanim</i> 174:34) argue that Rabbah bar bar Channah’s failure to derive halachic conclusions from his discovery indicates that Hashem does not want us to draw such conclusions from artifacts of the past.
  The latter approach seems to contradict the celebrated principle of “<i>lo bashamayim hi</i>” (literally “it is not in heaven”), which states that Heavenly decrees after the time that the Torah was given play no role in halachic decision-making (see Bava Metzia 59b). We may respond that the Gemara merely teaches that halachic authorities should discount divine declarations of agreement with specific rabbinic opinions. However, suggests Rav Yehudah Shaviv (editor’s note to <i>Techumin</i> 24:496), if the divine guidance of history indicates general principles, Halachah might endorse them. Rav Yosef Dov Soloveitchik adopts a similar approach (see <i>Nefesh Harav</i> p. 88 footnote 29; also see <i>Nefesh Harav</i> p. 53 footnote 26), arguing that Hashem’s will is discernible from the direction of history.
  The second classic source on this issue is the <i>Semag</i> (<i>Aseih</i> 22), who endorses the common practice to wear <i>tefillin</i> whose <i>parshiyot</i> are arranged in accordance with Rashi’s view.2<i class="footnote">Rashi and Rabbeinu Tam dispute the order in which the last two <i>parshiyot</i> should be placed in <i>tefillin</i>. Rashi (Menachot 34b s.v. <i>V’hakorei</i>) believes that “<i>Shema</i>” should come before “<i>V’haya im shamo’a</i>,” while Rabbeinu Tam (cited in <i>Tosafot ibid</i>. s.v. <i>V’hakorei</i>) believes that “<i>V’haya im shamo’a</i>” should precede “<i>Shema</i>.”</i> He supports this position from an ancient set of <i>tefillin</i> that were found buried in the area of the prophet Yechezkel’s grave. The <i>Drishah </i>(O.C. 34) objects that this find does not necessarily disprove the dissenting opinion of Rabbeinu Tam, as these <i>tefillin</i> may have been buried precisely because they were invalid! The <i>Bach</i> (ad. loc.) responds, though, that improper ordering of the <i>tefillin</i> would not have warranted burial, as the <i>parshiyot</i> simply could have been rearranged in the proper order.
  A more significant problem with the <i>Semag</i>’s argument is the unreliability of conclusions drawn from one artifact; it is entirely possible that in other digs, <i>tefillin</i> whose <i>parshiyot</i> are ordered according to Rabbeinu Tam’s opinion will be found. In fact, in twentieth-century archaeological excavations of the Dead Sea area, both types of <i>tefillin</i> have been discovered.3<i class="footnote">See the <i>Encyclopedia Judaica </i>(15:904). See also <i>Piskei Tosafot </i>(Menachot 92), which records that “In Nahardea and Jerusalem, two pairs [of <i>tefillin</i>] were found, one in accordance with Rashi and the other in accordance with Rabbeinu Tam.” The discovery that the Rashi-Rabbeinu Tam debate already raged in earlier generations should not surprise us. The Gemara frequently records disputes between the <i>Amoraim</i> about issues that the <i>Tannaim</i> had debated in earlier generations. I encountered this phenomenon in the late 1980s, when I became involved in <i>eruv</i> design and construction. I learned that <i>poskim</i> in America and Israel debated whether the positioning of a <i>lechi</i> beneath a wire should be determined by plumb line or by eyesight alone (see <i>Gray Matter 1</i> pp. 182-184). I thought that I could resolve this debate simply by asking older authorities what the practice was in pre-war Europe. To my surprise, I discovered that the same difference of opinion had existed then and merely had reemerged in the 1980s when Jews began building community <i>eruvin</i> in America.</i>
  The third classic case of discovering ancient artifacts is recorded in some editions of the Ramban’s commentary to Shemot 30:13, where the Ramban discusses the debate between Rashi and the Rif regarding the weight of a <i>shekel</i>. This impacts a number of areas of Halachah, such as determining the minimum weight of the coins used for <i>pidyon haben</i>. According to Rashi’s opinion, the <i>shekel</i> is one-sixth lighter than the Rif believes it to be. Though the Ramban originally supported the opinion of the Rif, he writes that when he made <i>aliyah</i>, the local Samaritans showed him an ancient coin with “<i>shekel hashekalim</i>” written on one side and “<i>Yerushalayim hakedoshah</i>” written on the other. Upon weighing this ancient <i>shekel</i>, he discovered that it accorded with Rashi’s view, whereupon he concluded, “And behold the words of Rabbeinu Shlomo (Rashi) are supported4<i class="footnote">Note that the Ramban states that Rashi’s opinion is “supported,” not “proven,” by the discovered artifact. </i> by a great support.”5<i class="footnote">Rav Yonatan Adler (<i>Techumin</i> 24:497) reports that many such coins have since been discovered throughout <i>Eretz Yisrael</i> and have been dated by academicians to the period of the last years of the Second Temple.</i>
  Interestingly, the Shulchan Aruch (Y.D. 305:1) does not rule in accordance with Rashi despite the Ramban’s discovery. This might be based on two criticisms of the Ramban’s evaluation of his discovery. The Abarbanel (Shemot 30:13-14) notes that it is possible that the <i>shekel</i> lost some of its weight over time.6<i class="footnote">I have been informed, though, that whether or not the <i>shekel</i> lost weight can be tested scientifically.</i> In addition, the <i>Tashbeitz</i> (3:226) is disturbed that the Ramban relied on Samaritans to decipher the writing on the coin. Since we have profound ideological differences with the Samaritans, their testimony holds no halachic credibility. These two criticisms of the Ramban’s approach foreshadow the two main concerns that some <i>poskim</i> express today regarding the reliability of ancient finds – the integrity of the discoveries and the credibility of archaeologists who are not observant Jews.
  The fourth classic case is the dispute (Shabbat 63b) regarding whether the words “<i>kodesh lahashem</i>” (holy to Hashem) on the <i>tzitz</i> (headplate of the <i>kohen gadol</i>) were engraved on one line or two lines. Although the <i>Tanna Kama</i> (the first, anonymous opinion quoted) believes it should be on two lines, Rabi Eliezer the son of Rabi Yose believes it should be on one line. Rabi Eliezer bases his opinion on the fact that he saw the <i>tzitz</i> in Rome, and on that <i>tzitz</i>, the words <i>kodesh lahashem</i> were written on one line.
  The Rambam (<i>Hilchot Klei Hamikdash</i> 9:1) presents a nuanced ruling regarding this issue. On the one hand, he rules in accordance with the <i>Tanna Kama</i> that <i>kodesh lahashem</i> should appear on two lines. However, he also considers the opinion of Rabi Eliezer by stating that if it appears on one line, it is acceptable, and he adds that “Sometimes it was written on one line.” The <i>Kesef Mishneh</i> (ad. loc.) explains that the Rambam partially codifies Rabi Eliezer’s opinion because of his claim that he had seen an actual <i>tzitz</i>. Rav Hershel Schachter told me that this also indicates that Halachah considers archaeological evidence.
  We may add though, that the Rambam does not extrapolate from the <i>tzitz</i> in Rome as much as Rabi Eliezer did. The latter drew the broad conclusion that if this one <i>tzitz</i> had <i>kodesh lahashem</i> on one line, every other <i>tzitz</i> throughout history did as well. The Rambam, on the other hand, concludes from the sighting only that “sometimes” <i>kodesh lahashem</i> is on one line. After all, only one <i>tzitz</i> was sighted. It is possible that the Rambam might be open to changing his ruling if more artifacts were discovered.
  Modern Archaeology and its Limitations
  The four cases we have discussed deal with fairly concrete artifacts. The issues raised by modern archaeology, however, are often much more nuanced and abstract. For example, archaeologists looking to date human bones would likely compare them to pottery found in the same stratum. If the pottery has been determined by archaeologists to be from the Canaanite period (before Avraham Avinu’s arrival), archaeologists might conclude that the bones, too, are from that period and hence must be of non-Jewish origin. Does Halachah permit relying on such assertions of professional archaeologists? To answer this question, we will briefly explore the advances and limitations of modern archaeology.
  The study of archaeology has advanced very significantly in the past hundred years. Archaeology is constantly evolving, and each succeeding generation has introduced new methods for more accurate exploration and assessment of the past. Today, computers and other technological equipment are standard tools in archaeologists’ ever-expanding arsenal of exploratory techniques. Naturally, this means that each generation of archaeologists can produce more reliable conclusions than its predecessors.
  Such rapid evolution, however, is a double-edged sword – archaeology is often questioning and challenging its own findings. Since the early 1900s, each succeeding generation has identified flaws in some of the methods and techniques previously employed. Even some current techniques will possibly be viewed as somewhat antiquated in as little as twenty years as technology makes available new tools for the processing and analysis of artifacts. Accordingly, while we may admire the achievements of archaeologists, we must at the same time recognize the limitations inherent in some of their conclusions.
  On the other hand, certain archaeological findings are unlikely to be challenged, such as the readings of the inscriptions on the hundreds of <i>shekalim</i> that were common after the Second Temple era. Similarly, after finding over one hundred stepped pools in Israel that can be identified as <i>mikva’ot</i>, it is unlikely that significant new classes of <i>mikva’ot</i> will be unearthed.
  There are other significant limitations that we must also bear in mind when assessing the value of archaeological findings. First, the survival of most artifacts is inherently limited, as use and exposure to the environment cause them to deteriorate over time. Organic items such as food, papyrus, and animal skins do not last unprotected for long. Even metal and stone objects often do not survive in their original form, as we noted earlier. Most items were meant to be used – they were not created with the intention that they endure forever – so only a small percentage of the entire corpus of material actually survives. Second, only tiny percentages of areas of interest have been excavated. The reasons for this include excavation costs, the fact that some areas are inhabited and thus unavailable for archaeological digs, and the wish to allow future archaeologists to test their theories and methods on existing sites. Hence, it is difficult to draw broad conclusions based on documents or artifacts that have <i>not yet</i> been found in archaeological excavations.
  Additionally, recorded ancient histories that have been unearthed often include bald lies and exaggerations. Ancient kings frequently employed individuals to record “history” as flatteringly as possible for their regimes rather than as objectively as possible. Even for accurately recorded documents, an integral component of many archaeological studies is the interpretation of the materials that have been unearthed. Interpretation is by definition subjective, and the archaeologist’s political or religious beliefs might color his analyses.
  An example is the conclusion of some archaeologists that the battle of Ai described in <i>Sefer Yehoshua </i>did not occur, a conclusion based on excavations at Ai showing that the city was not inhabited at the time of Yehoshua’s entry into <i>Eretz Yisrael </i>(<i>Encyclopedia Judaica</i> 2:471-472). However, Rav Yoel Bin Nun asserts (<i>Mechkerei Yehudah V’Shomron-Ariel</i>, second conference, 5752, pp. 278-289) that he demonstrated that they had excavated the wrong area. He claims to have found the correct location of Ai, which, when subsequently excavated, yielded evidence that it was in fact inhabited during the time of Yehoshua’s conquest.
  Twentieth-Century Evaluations – <i>Chazon Ish</i> vs. Rav Kook
  Two of the greatest authorities of the first half of the twentieth century expressed their evaluations of archaeological enterprise. The <i>Chazon Ish</i> deals with the question of whether the laws of <i>shemittah</i> apply to produce grown in the city of Beit She’an. The Gemara (Chullin 6b) records that produce grown in Beit She’an is exempt from <i>shemittah</i> restrictions, leading the inhabitants of modern-day Beit She’an to ask whether they could assume their city to be the one the Gemara calls by that name. The <i>Chazon Ish</i> (<i>Shevi’it</i> 3:18-19) rules unequivocally that we may not assume that it is the same Beit She’an. He believes that the practice of identifying places in Israel with their biblical and Talmudic namesakes is built on mere “<i>umdenot</i>” (conjectures), which are insufficient evidence for halachic purposes.7<i class="footnote">Since the time of the <i>Chazon Ish</i>’s death in 1953, the site of Beit She’an has been excavated extensively. Archaeologists today have a much better idea of the borders of the city in ancient times.</i>
  In his letters (<i>Collected Letters of the Chazon Ish</i> 3:19), the <i>Chazon Ish</i> reveals his underlying attitude towards archaeology. He writes, “I am not acquainted with the endeavor of excavations and studies of antiquities, and I oppose this enterprise because of the many uncertainties involved.” The <i>Chazon Ish</i> seems to reject wholesale the value of investigating the past by searching for artifacts, believing that anything we need to know about our past has been preserved throughout the generations; we may assume that anything that was not preserved was not worth preserving.8<i class="footnote">This seems to be identical to the <i>Chazon Ish</i>’s approach to the discovery of previously unknown manuscripts of early halachic authorities. He is famous for rejecting the attachment of any halachic significance to these newly discovered manuscripts. He reasons that Hashem allowed only those manuscripts that were worth preserving to be transmitted from generation to generation; if the transmission of a manuscript was interrupted, it means that Hashem did not want this manuscript to be part of the <i>mesorah</i> (tradition) and the halachic process. It should be noted, though, that not all authorities subscribe to the <i>Chazon Ish</i>’s view on this matter. For example, Rav Ovadia Yosef often relies upon recently discovered manuscripts in issuing halachic rulings. For further discussion of this issue, see Rav Moshe Bleich’s essay in <i>Tradition</i> (27:2:22-25).</i>
  Rav Avraham Yitzchak Hakohen Kook (<i>Igrot Hare’iyah</i> 423) adopts an ostensibly similar yet fundamentally different approach to this issue in a brief but illuminating responsum to Rav Yechiel Michel Tukachinsky. The specific issue he addresses is whether a particular location should read the <i>megillah</i> on the fifteenth of Adar based on contemporary scholarship’s conclusion that the area was surrounded by a wall in the time of Yehoshua bin Nun.9<i class="footnote">Cities surrounded by a wall at the times of Yehoshua read the <i>megillah</i> on the fifteenth of <i>Adar</i>, while those that were not surrounded by a wall at that time read on the fourteenth of <i>Adar</i> (Megillah 1:1).</i> Rav Kook writes (in 1912):
  Regarding the issue of establishing the reading of the <i>megillah</i> in the [new] settlements [on the fifteenth of <i>Adar</i>], I do not find that the evidence you have sent me is sufficient to establish these places as having been surrounded by walls during the period of Yehoshua. The evidence does not even rise to the level of doubt, since it must overcome the Rambam’s observation that the <i>rov </i>(majority) of cities of the world was not surrounded by walls during the time of Yehoshua. This entire enterprise of “<i>Eretz Yisrael</i> scholarship” is filled with guesswork. Although this endeavor is worthy of respect and warm admiration for the scholars involved in this study, due to our love of holy Torah matters, one nonetheless cannot make halachic decisions based on the Arab names of a specific area. Nevertheless, if you have any fundamental doubts or insights regarding any of the new settlements, kindly inform me of them and <i>b’li neder</i> I will express my views on this matter.
  Although Rav Kook shares much of the <i>Chazon Ish</i>’s skepticism regarding the field of academic <i>Eretz Yisrael</i> studies, he nevertheless seems to evaluate the entire enterprise with a crucially different attitude. First, he articulates positive sentiments about archaeological endeavors in general. Second, Rav Kook keeps an open mind about this matter, expressing willingness to consider more conclusive evidence. The only specific tool he rejects is the use of Arab names for an area.10<i class="footnote">It is entirely possible that the Arabs named the town after a different town whose ruins are located in the general vicinity. We rely upon Jewish traditions, such as the identification of an <i>etrog</i> as the “<i>pri eitz hadar</i>” mentioned in the Torah (Vayikra 23:40), because each generation is meticulous about passing on the correct identification to the next generation. We should note that there are other types of evidence that have been used in many cases to identify ancient sites since the time Rav Kook wrote this letter in 1912, as we will see in our later discussion of when to observe <i>Purim</i> in Lod.</i> He expresses a similarly skeptical yet positive and open attitude in <i>Igrot Hare’iyah</i> 574, in which he discusses basing halachic rulings on ancient coins, and in <i>Igrot Hare’iyah </i>91, wherein he discusses the implications of finds from the ancient past regarding the age of the universe.
  The <i>Techeilet</i> Controversy
  In the early 1990s, Rav Eliyahu Tavger11<i class="footnote">Rav Tavger was assisted by Dr. Ari Greenspan, Dr. Baruch Sterman, and Mr. Joel Guberman.</i> (see <i>Techumin</i> 9:425-428) sought to demonstrate that the <i>murex trunculus</i> (a type of snail) is the <i>chilazon</i>, the crustacean whose blood must be used to create the <i>techeilet</i> dye for <i>tzitzit</i>.12<i class="footnote">Some of the <i>tzitzit</i> strings are supposed to be dyed with <i>techeilet</i>, but the Mishnah (Menachot 4:1) states that we fulfill some aspects of the <i>mitzvah</i> even if we do not have this dye, which has been the case for at least one thousand years. </i> Among Rav Tavger’s proofs are archaeological finds on the northern coast of <i>Eretz Yisrael</i>, where huge mounds of <i>murex trunculus</i> shells were discovered alongside dyeing vats (<i>Encyclopedia Judaica</i> 15:914). His claim sparked a great controversy, as some believed it likely that a <i>mitzvah</i> that had been lost from <i>Am Yisrael</i> for over one thousand years13<i class="footnote">For a discussion of when precisely the use of <i>techeilet</i> ceased, see Rav Tavger’s essay on this topic published in <i>Kuntreis - Topics in Tekhelet, 5767</i> (available at www.tekhelet.com). He reviews the debate between the Radzyner Rebbe and Rav Yitzchak Herzog regarding whether <i>techeilet</i> was used during the times of the <i>Geonim</i>.</i> finally had been restored, while others doubted this claim. This controversy still has not been resolved, leading some Jews to wear <i>tzitzit</i> dyed with this “new” <i>techeilet</i> and others to refrain.
  Rav Yosef Shalom Eliashiv argues against wearing this <i>techeilet</i> (<i>Kovetz Teshuvot</i> 1:2). One of his arguments is that the Radzyner Rebbe, writing in the late nineteenth century, also claimed that he had discovered the lost <i>techeilet</i>, identifying it as the <i>sepia officinalis</i> (cuttlefish). Subsequently, in the early twentieth century, Rav Yitzchak Herzog demonstrated that the Radzyner’s identification of the <i>techeilet</i> was incorrect, asserting that the <i>techeilet</i> was actually from a snail known as the Janthina. Now, less than a century later, others have refuted Rav Herzog’s claim, too, and have identified a different snail as the authentic source of <i>techeilet</i>. “And,” Rav Eliashiv argues, “we do not know if, in the coming years, others will come and disprove their claim as well.”14<i class="footnote">Rav Menachem Burstein, in his work <i>Hatecheilet</i>, fully explains the respective approaches of the Radzyner Rebbe and Rav Herzog. Abundant material regarding the current <i>techeilet</i> is available at www.tekhelet.com.</i>
  Rav Eliashiv’s skepticism has ample precedent among the <i>Acharonim</i>. Rav Yonatan Eybeshitz (<i>Kreiti Upleiti</i> 40:4), for one, writes that scientific claims should be treated with great skepticism. He notes that although the works of Galen and Aristotle were accepted as truth for many centuries, they are nowadays dismissed as incorrect. Rav Kook (<i>Teshuvot Da’at Kohen</i> 140) likewise writes that Halachah treats scientific claims as only possibly correct. He even argues that we rely on a physician’s assessment that someone must eat on <i>Yom Kippur</i> merely because of the possibility that he is correct (<i>safeik nefashot l’hakeil</i>).
  Rav Zalman Nechemia Goldberg and Rav Hershel Schachter, on the other hand, consider the current identification of <i>techeilet</i>. Rav Tavger’s identification is based on the work of Rav Herzog, which is based on the work of the Radzyner Rebbe. Each generation does not simply dismiss the previous generation’s work, but rather builds on it to advance the process of identifying <i>techeilet</i>. The contemporary <i>poskim</i> who advocate wearing the <i>techeilet</i> believe that at some point, the evidence becomes convincing enough to rise at least to the level of <i>safeik</i>. Moreover, there are times when <i>poskim</i> accept certain scientific claims as certainly correct, such as in the context of <i>hilchot niddah</i>.15<i class="footnote">See the discussion of the credibility of doctors in <i>Nishmat Avraham </i>2:82-85. </i>
  The advocates of the “new” <i>techeilet</i> therefore believe that while it is wise to maintain a healthy skepticism about archaeological and other scientific claims, it is also wise to keep an open mind about them. These <i>poskim</i> consider the current identification of <i>techeilet</i> to be possibly correct (s<i>afeik techeilet</i>). As a precedent that one must wear <i>safeik techeilet</i> since there is a chance that he will be performing a <i>mitzvah </i>thereby, Rav Tavger (in a letter available at www.tekhelet.com) cites the Mishnah Berurah’s ruling (39:26) that one who has access only to <i>tefillin</i> that are merely possibly kosher must wear such <i>tefillin</i>.16<i class="footnote">Dr. Baruch Sterman and Rav Chaim Twerski have written articles that discuss this topic for the <i>Journal of Halacha and Contemporary Society </i>(43:112-124 and 34:77-102, respectively). Both are available at www.tekhelet.com.Since the new techeilet is at best <i>safeik techeilet </i>even according to its supporters, we must also assess whether wearing it entails any halachic risk – whether wearing potentially false <i>techeilet</i> is worse than wearing none at all. Rav Eliashiv argues that there is such a risk, as the Shulchan Aruch (O.C. 9:5; see the Pri Megadim cited in the Mishnah Berurah 9:15) cites an opinion in the <i>Rishonim</i> that the color of the <i>tzitzit</i> strings not dyed with true <i>techeilet</i> should match the color of the <i>tallit</i> to which they are attached. Rav Hershel Schachter responds (<i>Ginat Egoz</i> 2:13) that the possibility of properly fulfilling the biblical <i>mitzvah</i> of <i>tzitzit</i> with <i>techeilet</i> enjoys priority over satisfying this minority opinion cited in the Shulchan Aruch. Of course, since we are not certain that we have succeeded in identifying the correct <i>techeilet</i>, one should not attach wool <i>tzitzit</i> even with the new <i>techeilet</i> to a four-cornered linen garment (see Shulchan Aruch O.C. 9:2). </i>
  Can Archaeological Discoveries Substitute for a <i>Mesorah</i>?
  Among the reasons marshaled against accepting the “new” <i>techeilet</i> is that a <i>mesorah</i> (tradition) from our ancestors is necessary to identify the authentic <i>chilazon</i>. Indeed, Rav Yosef Dov Soloveitchik (<i>Shiurim L’zeicher Abba Mari Z”l</i> 1:228) reports that his great grandfather, the <i>Beit Halevi</i>, rejected the Radzyner Rebbe’s identification of the <i>techeilet</i> precisely for this reason. Rav Soloveitchik argues that just as we know that the <i>etrog</i> is the “<i>pri eitz hadar</i>” mandated by the Torah (Vayikra 23:40) purely from a tradition handed down from generation to generation, so must the identity of any animal or plant involved in the fulfillment of <i>mitzvot</i> come from such a tradition. This approach inherently rejects the possibility of reviving a lost tradition before the arrival of <i>Mashiach</i>. The <i>Aruch Hashulchan</i> (O.C. 9:12) seems to adopt Rav Soloveitchik’s approach as well, as he writes that the <i>mitzvah</i> of <i>techeilet</i> will not be restored until the time of <i>Mashiach</i>.
  Rav Shabtai Rappaport suggests a creative response to this objection. One may argue that <i>Mashiach</i> himself will be identified by <i>simanim</i> (signs), namely, the descriptions of <i>Mashiach</i> that are outlined by the <i>Tanach</i>, <i>Chazal</i>, and the Rambam. We can identify the <i>techeilet</i> in a similar manner, since the Gemara in various places (such as Menachot 42b-43a) describes many aspects of the <i>techeilet</i>-making process. On the other hand, we may argue that this is precisely why it is necessary for Eliyahu Hanavi to precede <i>Mashiach</i>’s arrival (Eruvin 43b and Rashi <i>ibid</i>. s.v. <i>Lifnei Bo</i>) – to identify the authentic <i>Mashiach</i> without resorting to <i>simanim</i>. <i>Techeilet</i>, too, might require more than just <i>simanim </i>to be trustworthy.
  Rav Hershel Schachter (<i>Nefesh Harav</i> p. 53 footnote 26) notes that the <i>Beit Halevi</i>, in a letter he wrote to the Radzyner Rebbe, adopts a significantly different stance from that presented by his great-grandson.17<i class="footnote">The letter was first published by the Radzyner in <i>Ein Hatecheilet</i> p. 13, and it also appears in Rav Menachem Burstein’s <i>Hatecheilet </i>p. 190. </i> The <i>Beit Halevi</i> emphasizes that the fish (and the method of extracting its dye) that the Radzyner identified as the <i>chilazon</i> was known among Torah scholars for many generations, yet they never identified it as the <i>chilazon</i>. Thus, we have a “de facto <i>mesorah</i>” that this fish is not the authentic <i>chilazon</i>. In contrast, Rav Schachter comments, Torah scholars in earlier generations seem not to have known about the <i>murex trunculus</i>. Moreover, the method of obtaining a sky-blue dye from this snail was unknown until it was discovered serendipitously in an Israeli laboratory in the 1980s.
  The letter published in the Radzyner’s work does not prove Rav Soloveitchik’s presentation of his ancestor’s idea to be incorrect; it simply shows that the <i>Beit Halevi</i> articulated different approaches to this issue. However, the idea expressed in the letter does present an alternative outlook to that presented by Rav Soloveitchik, one that opens the possibility of restoring a lost tradition through the use of archaeology. In fact, the <i>Beit Halevi</i> wrote in his letter that “If this fish [or the method of procuring its dye] was lost and newly rediscovered, we would be obligated to listen to [the Radzyner] and wear [his <i>techeilet</i>].”
  Nonetheless, Rav Eliashiv raises another problem with reviving the <i>mitzvah</i> of <i>techeilet</i> today: we lack a <i>mesorah</i> for how to resolve disputes among the <i>Rishonim</i> about the production of the <i>techeilet</i>. Rav Elazar Meyer Teitz (in a personal communication) similarly pointed out the lack of a <i>mesorah</i> for how to tie the knots of the <i>tzitzit</i> and how many strings to dye with the <i>techeilet</i>, both of which the <i>Rishonim</i> debate.18<i class="footnote">For a discussion of the many opinions regarding these issues, see Rav Yehudah Rock’s essay in <i>Techumin</i> (16:412-432). </i> Other <i>poskim</i>, such as Rav Zalman Nechemia Goldberg (in an essay available at www.tekhelet.com) and Rav Hershel Schachter (<i>Ginat Egoz</i> 2:16-18), argue that sufficient analytical bases exist in the Shulchan Aruch and the <i>Acharonim</i> (for example, Mishnah Berurah 9:7) to resolve these disputes. We also have the precedent of <i>shemittah</i> and other <i>Eretz Yisrael</i>-dependent <i>mitzvot</i>, regarding which modern-day <i>poskim</i> have resolved halachic issues despite the absence of clear halachic precedents.
  <i>Mezuzah</i>
  Archaeological evidence also appears to be relevant in interpreting the Gemara’s statement (Menachot 33a) that mezuzot may not be placed “in the manner of carpenters.” Rashi (ad. loc. s.v. Avida) explains that this forbids placing mezuzot horizontally, while Rabbeinu Tam (cited in Tosafot ad. loc. s.v. Ha) believes that it forbids placing them vertically. Whereas the Sephardic tradition employs Rashi’s vertical orientation (Shulchan Aruch Y.D. 289:6 and Yalkut Yosef, Y.D. 285:5), Ashkenazic Jews customarily attempt to compromise between the two opinions, placing their mezuzot on a slant (see Rama ad. loc.).19<i class="footnote">Essentially, though, even Ashkenazic Jews accept Rashi’s position, as noted by the Vilna Gaon (Bei’ur Hagra Y.D. 289:14).</i> An archaeological perspective on this issue comes from the notches that our ancestors used to etch in their doorways into which they would insert their mezuzot. All the notches that have been found have been vertical or slanted,20<i class="footnote">It is interesting to note that the notches have the top portion facing inward, matching the Ashkenazic custom recorded by the Rama.</i> apparently supporting Rashi’s opinion.21<i class="footnote">Slanted <i>mezuzot</i> are acceptable according to both Rashi and Rabbeinu Tam, as noted by <i>Tosafot</i> (Menachot 33a s.v. <i>Ha</i>).</i> None has yet been found with horizontal notches, which would accord with Rabbeinu Tam’s view.22<i class="footnote">See <i>Tarbut Chomrit B’Eretz Yisrael Biymei Hatalmud</i> pp. 60-69, where Professor Daniel Sperber marshals other archaeological evidence based on the construction of doors unearthed at Beit She’arim in Northern Israel which support Rashi’s view.</i>
  Unlike the evidence for <i>techeilet</i>, this evidence should not move Ashkenazic Jews to change their tradition. Firstly, the archaeological data might be inadequate. It is possible that homes where the <i>mezuzot </i>were affixed in accordance with Rabbeinu Tam will be found, just as <i>tefillin</i> have been found that match each of Rashi and Rabbeinu Tam’s opinions about the order of the <i>parshiyot</i>.
  A second reason for Ashkenazic Jews to maintain their custom is that we should not abandon our tradition even in light of archaeological evidence. As we have seen with respect to the <i>techeilet</i>, archaeology possibly can play a role when there is no <i>mesorah</i>, but it cannot uproot one.23<i class="footnote">The archaeological findings, though, could reinforce Sephardic Jews’ resolve to abide by the ruling of the Shulchan Aruch (Y.D. 289:6) to follow Rashi’s view. Rav Moshe Shternbuch similarly uses archaeological findings to support the non-Chassidic style of writing the letter <i>tzadi</i>, as we shall see later.</i>
  Another reason is that perhaps the debate between Rashi and Rabbeinu Tam already raged in ancient times, and the Jews who kept their <i>mezuzot</i> on a slant did so as a compromise between the two views, much as Ashkenazic Jews do today. Thus, the fact that some <i>mezuzot</i> were slanted does not indicate that the position of Rabbeinu Tam is unfounded.
  <i>Mikveh</i>
  There is no exclusive tradition regarding how to construct a mikveh. In fact, at least five different styles of mikveh construction are employed throughout the world today.24<i class="footnote">See <i>Gray Matter 2</i> pp. 255-298 for a fuller discussion of the various methods of constructing and maintaining <i>mikva’ot</i>.</i> The many mikva’ot unearthed in Jerusalem (Techumin 19:448-455) and Massada (Techumin 17:389-398) were rendered kosher using either zeri’ah25<i class="footnote">This refers to the method of pouring a large amount of non-kosher water into a preexisting kosher pool, which renders the previously unacceptable water kosher.</i> or hashakah.26<i class="footnote">This is the process whereby a pool of non-kosher water is placed next to a kosher pool and allowed to mix freely with it, which makes the non-kosher water acceptable.</i> There were no split-level rainwater collection pools, unlike many of the mikva’ot constructed today (such as those following the model of Rav Yaakov Breisch, Teshuvot Chelkat Yaakov 3:53-54). Should contemporary mikva’ot be adjusted to match the design of those unearthed in Israel, particularly those discovered outside the southern wall of the Temple Mount?
  Contemporary <i>mikveh</i> design does not take these findings into account. Technological advances (and greater availability of water) allow us to construct <i>mikva’ot</i> that meet “higher” standards than were possible in ancient times. In addition , we believe in the concept of <i>yeridat hadorot</i>, meaning that earlier generations, who were closer to the revelation at Sinai, were on a higher spiritual level than we are today (Shabbat 112b). Hence, we require more safeguards in our <i>mikveh</i> design than did our ancestors in Israel. Indeed, contemporary <i>mikveh</i> design is motivated to a great extent by the desire to avoid potential errors.
  <i>Purim</i>
  Since cities that were surrounded by walls during the time of Yehoshua bin Nun celebrate <i>Purim</i> on the fifteenth of <i>Adar</i>, various places in <i>Eretz Yisrael</i> have encountered the question of whether to consider archaeological evidence in determining what their status was at that time. This question has arisen in two variations. The first concerns areas that have not maintained a tradition that they might have been surrounded by walls during the time of Yehoshua, but which twentieth-century archaeological evidence indicates were surrounded by walls at that time. A variant question arises when the archaeological evidence simply confirms an existing tradition that a city might have been surrounded by walls in Yehoshua bin Nun’s time.
  <i>Purim</i> in Beit El<i></i>
  The first variation arises in a number of places, such as the town currently called Beit El. The <i>Tanach</i> (<i>Shoftim</i> 1:22-25) clearly indicates that the town known in biblical times as Beit El was surrounded by a wall during the time of Yehoshua bin Nun. Yoel Elitzur (<i>Techumin</i> 1:109-118) argues that archaeological (and other) evidence proves that the contemporary town of Beit El (established in the 1970s) is located in the same place as the biblical Beit El. He therefore suggests that <i>poskim</i> should consider ruling that <i>Purim</i> be observed exclusively on the fifteenth of <i>Adar</i> in contemporary Beit El.
  The reactions of <i>poskim</i> (recorded in <i>Techumin</i> 1:120-127) were mixed. Rav Shaul Yisraeli felt that <i>Purim</i> should be observed only on the fourteenth of <i>Adar</i>, contending (among other objections) that the archaeological evidence was inadequate to determine that the contemporary Beit El was surrounded by walls during the time of Yehoshua. Rav Ovadia Yosef, though, felt that the evidence was sufficient to rise to the level of <i>safeik</i>, compelling him to rule that “it is worthwhile and proper” to read the <i>megillah</i> in Beit El on the fifteenth of <i>Adar</i> without a <i>berachah</i> in addition to the regular reading on the fourteenth with a <i>berachah</i>.27<i class="footnote">The Gemara (Megillah 5b) records that Chizkiyah maintained such a practice in Tiberias due to unresolved questions as to its status as a walled city. </i> Rav Mordechai Eliyahu was even more inclined to rule that <i>Purim</i> should be observed in Beit El on the fifteenth of <i>Adar</i>, though he stressed the importance of reaching a rabbinic consensus on this matter so as to avoid halachic pandemonium.
  Longtime Beit El residents report that they have never heard of anyone in the city reading the <i>megillah</i> on the fifteenth. They follow the ruling of the longtime Rosh Yeshiva of Yeshivat Beit El, Rav Zalman Melamed, who authored a responsum (<i>Techumin</i> 1:130-134) arguing that it is sufficient to read it on the fourteenth. Rav Melamed emphasizes that he believes the archaeological evidence to be so “far from certain” that “In [my] opinion, even a halachic <i>safeik</i> has not been created.” In a conversation with Rav Melamed in 2004, he confirmed that no one actually reads the <i>megillah</i> on the fifteenth in Beit El. He cited the practical difficulties associated with observing <i>Purim</i> on two days and the majority opinion amongst the <i>poskim</i> (based on the Yerushalmi, Megillah 1:1) that if a resident of a walled city (mistakenly) observes <i>Purim</i> on the fourteenth, he nevertheless fulfills his <i>Purim</i> obligations. Rav Ovadia Yosef also notes this last point in his responsum.
  <i>Purim</i> in Lod<i></i>
  A variation of the Beit El debate has emerged regarding the city of Lod. The Gemara (Megillah 4a) states unequivocally that Lod was surrounded by walls during the time of Yehoshua bin Nun. However, Rav Yechiel Michel Tukachinsky (in his famed <i>Luach Eretz Yisrael</i>) rules that Lod should observe <i>Purim</i> on both the fourteenth and fifteenth days of <i>Adar</i>, since we are uncertain whether the city we refer to today as Lod is located precisely where the ancient city of Lod stood. The suggestion emerged in the 1980s, though, that residents of Lod should observe <i>Purim</i> exclusively on the fifteenth, as archaeological evidence seemed to prove incontrovertibly that the current city of Lod lies on the ruins of its ancient namesake.
  Yoel Elitzur (<i>Techumi</i>n 9:367-380) suggests to <i>poskim</i> that <i>Purim</i> should now be observed only on the fifteenth of <i>Adar</i> in Lod. He presents what he deems to be overwhelming evidence that the city of Lod is built on the ancient city. He notes that in practically every change to the infrastructure of Lod, ancient relics have been discovered.
  Once again, the reactions of <i>poskim </i>(recorded in <i>Techumin</i> 9:365-366) have been mixed. None of the <i>poskim</i> ruled that <i>Purim</i> should now be observed exclusively on the fifteenth of <i>Adar</i> in Lod, but subtle differences are discernible in their respective approaches. Rav Yosef Shalom Eliashiv (<i>Kovetz Teshuvot</i> 1:68:2) seems not to be moved by the archaeological discoveries, writing that the practice recorded by Rav Tukachinsky should be maintained. Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 8:61), on the other hand, writes that although <i>Purim</i> should still primarily be observed on the fourteenth of <i>Adar</i> in Lod, as has been the custom, Lod residents should nevertheless be especially careful to hear the <i>megillah </i>without a <i>berachah</i> on the fifteenth of <i>Adar</i>.
  Rav Natan Ortner, the Rav of Lod (whose comprehensive essay on this topic appears in <i>Techumin </i>9:341-366), told me in 2004 that when asked, he advises that the <i>megillah</i> be read again on the fifteenth without a <i>berachah</i>, in accordance with the rulings of Rav Eliashiv and Dayan Weisz. He added that although <i>Purim</i> generally is observed on the fourteenth of <i>Adar </i>in Lod, some shuls do indeed conduct <i>megillah</i> readings both in the evening and in the morning of the fifteenth.
  Identification of Bones
  Probably the most delicate issue that emerges in the context of the debate over the acceptability of archaeological evidence in Halachah is whether or not <i>poskim</i> may accept an archaeologist’s claim, based on currently accepted archaeological techniques, that a set of human remains is not from a Jewish person.28<i class="footnote">Proof for such an assertion might come from dating the remains to the Canaanite period.</i>
  We should note first that Halachah favors claims presented by Torah-observant archaeologists. Although it also accords credibility to non-Torah-observant professionals because we assume that they do not wish to jeopardize their professional standing (see, for example, Shulchan Aruch O.C. 20:1), Halachah nevertheless prefers the advice of a Torah-observant professional. For example, it is preferable to seek the judgment of an observant doctor to determine if a sick individual must fast on <i>Yom Kippur</i> (see Bei’ur Halachah 618:1 s.v. <i>Choleh</i>).
  The reason for this is straightforward: as the Mishnah (Bechorot 4:10) records, “One who does not observe a particular <i>mitzvah</i> cannot serve as a judge or witness regarding that <i>mitzvah</i>.” For example, one cannot trust the kashrut of someone who does not abide by the laws of kashrut. One who does not observe a Torah law sometimes cannot psychologically grasp the importance of observing that law meticulously. An archaeologist who does not observe Torah law might not be sensitive to the importance of the great dignity with which Halachah requires us to treat the dead.
  However, it is not obvious that Halachah accepts the claims of an observant archaeologist either. <i>Poskim</i> regard many scientific claims with a healthy dose of skepticism, because a later generation of scientists might disprove and reject the claims being made today. Thus, even if a Torah-observant archaeologist claims that scientific methods preclude any chance that bones in an excavation are of Jewish origin, <i>poskim</i> might regard this claim only as possibly correct. <i>Poskim</i> consider the possibility that later generations will reject the validity of the scientific methods of the current generation of archaeologists.
  Nonetheless, Rav Kook does write (<i>Teshuvot Da’at Kohen</i> 79 and 191 and <i>Teshuvot Ezrat Kohen</i> 41) that Halachah can accept scientific claims as being either certain or very likely to be certain when ample empirical evidence exists to support the claims. He cites numerous examples in which <i>Chazal</i> accepted specific scientific claims as the basis for their halachic rulings (see <i>Tosefta Ohalot</i> 4:2, <i>Bava Kama</i> 91a, and Sanhedrin 78a).
  One example of this is the procedure delineated by the Mishnah (Makkot 3:11) for administering <i>malkot</i> (lashes), which relies upon a doctor’s evaluation of how many lashes the offender can sustain. It seems from this Mishnah that we will rely upon a doctor’s counsel if <i>poskim</i> determine that it is based on a solid foundation of evidence. Rav Yonatan Adler thus concludes (<i>Techumin</i> 24:504) that each specific claim of archaeologists should be evaluated by <i>poskim</i> to determine whether it should be dismissed as conjecture, regarded as possibly correct, or accepted as certain or almost certain truth.29<i class="footnote">See our earlier discussion regarding the admissibility of blood tests and DNA evidence in <i>beit din</i> for other examples of how <i>poskim</i> display varying levels of acceptance of scientific claims.</i> Cooperation between <i>poskim</i> and observant archaeologists would be most helpful in reaching appropriate conclusions about such matters.
  Writing the Letter <i>Tzadi</i>
  A final illuminating example of a halachic evaluation of archaeological evidence is a <i>teshuvah</i> of Rav Moshe Shternbuch (<i>Mo’adim Uzmanim</i> 2:166 footnote 2) in which he discusses the celebrated dispute surrounding how to write the Hebrew letter <i>tzadi</i> in Torah scrolls. He reports that ancient <i>tefillin </i>that have been dated to the time of the Bar Kochba revolt support the non-Chassidic, Ashkenazic tradition regarding the shape of this letter. Although Rav Shternbuch expresses very serious reservations about relying on archaeological findings regarding halachic matters, he writes that the <i>tefillin</i> nonetheless demonstrate that many Jews used the non-Chassidic, Ashkenazic style in ancient times. Thus, the Vilna Gaon and the <i>Chazon Ish</i> (O.C. 9:6) are supported in their insistence that non-Chassidic Ashkenazim not deviate from their tradition of how to write the <i>tzadi</i>. Rav Shternbuch even urges them to be sure to hear <i>parashat zachor</i>30<i class="footnote">This is the section from Devarim 25:17-19 that is read the Shabbat before <i>Purim</i>. The consensus amongst <i>poskim</i> is that this reading is biblically mandated (see Shulchan Aruch O.C. 685:7). As such, we are more stringent regarding the requirements for this reading (see, for example, <i>Mishnah Berurah ibid</i>. 18).</i> read from a Torah scroll whose letters are written in accordance with this tradition. He does not suggest, though, that Sephardic or Chassidic Jews alter their practice based on the archaeological evidence; he merely uses the artifacts as support for those who follow the Ashkenazic practice in this matter. Indeed, it is entirely possible that in the future, <i>tefillin</i> will be found supporting the Sephardic and Chassidic <i>tzadi</i>. Moreover, the mid-twentieth-century work <i>Tzidkat Hatzaddik</i>, written expressly to defend the Chassidic and Sephardic form of the <i>tzadi</i>, includes (p. 40) a picture of a Torah scroll written by the Ran in which the <i>tzadi</i> is indeed written in the style of the Sephardim and Chassidim (also see <i>Teshuvot Yabia Omer </i>2 Y.D.20).31<i class="footnote">Another example of a question that could be resolved by archaeology is the size of eggs and olives. The <i>Teshuvot Noda Biy’huda</i> (1 O.C. 38; see also Mishnah Berurah 486:1 and Bei’ur Halachah 271:13 s.v. <i>Shel Revi’it</i>) asserts that eggs today are half as large as those in the times of <i>Chazal</i>, thereby requiring us to use the equivalent of two modern day eggs in order to determine the <i>shiurim</i> of an egg (required for Halachot such as sitting in the <i>sukkah</i>; Shulchan Aruch O.C. 639:2) and an olive (one half of an egg, the <i>shiur</i> required for many <i>mitzvot</i>, including <i>matzah</i>; Shulchan Aruch O.C. 486:1). Other <i>poskim</i>, such as the <i>Aruch Hashulchan</i> (O.C. 168:13 and 472:12), question the <i>Noda Biy’huda</i>’s claim. Professor Avraham Yehudah Greenfield (<i>Techumin</i> 16:433-442) marshals archaeological (and other) evidence that the size of eggs has not changed dramatically since the times of <i>Chazal</i>. Similarly, researchers at Bar-Ilan University announced in 2008 (reported by the Jerusalem Post, April 11, 2008) that they had discovered that the olives in the times of <i>Chazal</i> were in fact smaller than those available today, which would make the <i>shiur</i> of an olive smaller than is commonly assumed. However, the <i>Chazon Ish</i> (O.C. 39:6) rules that the <i>shiurim</i> given by <i>Chazal</i> are by definition imprecise and can be calculated based only on the olives and eggs of each time and place, a position that eliminates the halachic impact of these archaeological findings.</i>
  <img>32<i class="footnote">These pictures, showing the different styles of writing the <i>tzadi</i>, appear in <i>Sefer Torah Shenimtzah Bah Ta’ut</i> p.49.</i>
  Conclusion
  The <i>Chazon Ish</i> and Rav Kook might be interpreted as disagreeing as to whether <i>poskim</i> should consider the findings of archaeology. We have seen this debate play out amongst the late-twentieth-century <i>poskim</i>, some of whom are open to the findings of archaeology, and others of whom seem to disregard them. Indeed, we have seen that Rav Mordechai Eliyahu, Rav Moshe Shternbuch, Dayan Weisz, and Rav Ovadia Yosef consider archaeological evidence in their rulings. However, even those who consider the findings of archaeology to be of halachic significance view the findings critically, declining to rule based on archaeologists’ findings when they contradict a <i>mesorah</i> of <i>Am Yisrael</i>.
  
  Estate Planning
  
  Introduction to the Laws of Yerushah and the Ethics of Jewish Estate Planning
  
  <i>Yerushah</i> (inheritance) is one of the most difficult areas of Halachah to apply in modern-day contexts. This section concerns the basic Torah guidelines and attitudes regarding <i>yerushah</i> and grapples with their application in a world whose standards of inheritance generally do not match those of the Torah. We will begin with a discussion of the background of the Torah’s requirements for inheritance and some basic Torah values that should serve as guidelines when drafting a will that conforms to both Halachah and the spirit of the Torah.
  The Torah Order of Succession
  The Torah (Bemidbar 27:8-11) outlines the halachic order of succession:
  If a man dies and has no son, then you shall pass his inheritance on to his daughter. And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father’s brothers. And if his father has no brothers, then you shall give his inheritance to the relative who is closest to him of his family, and he shall inherit it. This shall be for the children of Israel as a decree of justice (<i>chukat mishpat</i>), as Hashem commanded Moshe.
  A number of points must be clarified regarding the Torah’s order of <i>yerushah</i>. The Mishnah (Bava Batra 8:2) explains that the lineal descendants of any person with priority to succession take precedence over the next in line after that person. For example, the grandchild (son of a son) of the deceased has priority over the daughter of the deceased. If a man dies with no living son, the inheritance passes to any deceased son’s lineal descendants (the grandchildren or great-grandchildren of the deceased), and only if there are no such descendants does it pass to a daughter.
  Sons, as stated clearly in the Torah, have priority to inherit. If the deceased was not survived by any sons, his daughters inherit everything. The Mishnah explains that the decedent’s father is third in the line of succession, after sons and daughters, even though the father is not explicitly mentioned in the Torah’s list. Thus, if the decedent was not survived by children, his father inherits all. If the father is not alive, the decedent’s brothers inherit, if there are any; after that, the closest relative inherits.1<i class="footnote">The entire sequence of looking for heirs is recursively repeated on each of the ancestors and siblings of the deceased until an heir is found. See Shulchan Aruch C.M. 276 and <i>Pitchei Choshen</i> 8:1 for a thorough description of the Torah’s line of succession.</i>
  The Special Status of the Firstborn (<i>Bechor</i>)
  The Torah (Devarim 21:16-17) commands us to give a firstborn male a double portion of his father’s estate.2<i class="footnote">A full presentation of the details concerning the special entitlement of the <i>bechor</i> appears in Shulchan Aruch C.M. 277 and <i>Pitchei Choshen</i> 8:2.</i> Thus, if the deceased was survived by five sons, the <i>bechor</i> receives two-sixths of the inheritance, and the other sons each receive one-sixth.
  There are several important exceptions to this seemingly simple Halachah. First, a son born by Caesarean section does not qualify for the double portion (Bechorot 8:9). In addition, the Mishnah (<i>ibid.</i>) teaches that the <i>bechor</i> is entitled to receive a double share only from assets held by the decedent at the time of his death (<i>muchzak</i>). The <i>bechor</i> does not receive a double portion from the contingent assets (<i>ra’ui</i>) – the assets to which the decedent had a right at the time of death but which he did not actually have in hand (e.g. unpaid debts). There is considerable debate concerning the implementation of this rule. For example, Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 8 C.M. 8) and Rav Yaakov Blau (<i>Pitchei Choshen</i> 8:2:26) rule that money deposited in a bank is considered <i>ra’ui</i>. On the other hand, Rav Hershel Schachter records (<i>Sha’arei Tzedek</i> 7:110) that Rav Moshe Feinstein believed that money deposited in a bank, including the interest accumulated before death, is considered <i>muchzak</i>. A similar dispute exists between Rav Yechezkel Landau (<i>Teshuvot Noda Biy’huda</i> C.M. 1:34) and the <i>Aruch Hashulchan</i> (C.M. 278:13) as to whether government bonds are considered <i>ra’ui</i> or <i>muchzak</i>.
  Spouses
  The husband is heir to his wife’s estate and takes precedence over all other heirs. There is considerable debate as to whether this Halachah is a Torah law or a rabbinic enactment.3<i class="footnote">See Bava Batra 109b; also see Rambam, <i>Hilchot Nachalot</i> 1:8 and the comments of the Ra’avad, <i>Maggid Mishneh</i>, and <i>Kesef Mishneh</i> there.</i> The wife, in contrast, does not inherit her husband’s estate (Bava Batra 111b). She is entitled to be supported out of the husband’s estate only until she remarries or demands payment of her <i>ketubah</i> (Ketubot 4:12).
  Daughters’ Inheritance
  Although a daughter does not inherit if there are sons, each unmarried daughter is entitled to ten percent4<i class="footnote">Attorney Martin Shenkman suggests that this distribution is determined net of any estate tax because of <i>dina d’malchuta dina</i> (the obligation to follow the laws of the country in which we reside), as the tax money effectively belongs to the government from the start.</i> of the estate to be used for her dowry (Ketubot 6:6, <i>ibid</i>. 68a, and Shulchan Aruch E.H. 113:1). In addition, a daughter has the right to be supported by the estate until she is betrothed or reaches the age of <i>bat mitzvah</i> (Ketubot 4:11).
  Ethical Wills
  Rav Yechiel Michel Tukachinsky, in his classic work <i>Gesher Hachaim </i>(1:41), writes that everyone should write an ethical will in addition to the standard will concerning his assets. As a source for this practice, he cites the celebrated <i>pasuk</i> (Bereishit 18:19) that states that Hashem considered Avraham special “because he commands his children and his household after him that they keep the way of Hashem, doing charity and justice.” Moreover, the Ralbag (I <i>Melachim</i> 2:46) writes that everyone should learn from the example set by Moshe Rabbeinu, Yehoshua, and David Hamelech (we may add Yosef Hatzadik to the list), all of whom presented ethical wills before they died. There is a long tradition among great rabbis, including the Vilna Gaon, Rav Aryeh Levine, and Rav Shlomo Wolbe, to follow the example set by these biblical figures.
  A will, or, preferably, a separate personal letter stating one’s Torah vision for his family is a vehicle that can encourage the family and children to follow the Torah lifestyle he wishes for them. Such a personal communication can be extraordinarily beneficial for his children and other heirs. The last communication from parent to child should not be about money alone.
  <i>Shelom Bayit</i>
  The Rambam (<i>Hilchot Nachalot</i> 6:13), in the midst of presenting detailed Halachot concerning inheritance, interjects, “Our rabbis have commanded that one should not treat one child differently from another child even regarding small matters, lest the children come to competition and jealousy, such as what occurred with Yosef and his brothers.” This is surprising, as the Rambam’s <i>Mishneh Torah</i> is a halachic code in which ethical statements are almost always confined to dedicated sections, such as <i>Hilchot Dei’ot</i> and concluding paragraphs of major sections. It appears, then, that the Rambam is teaching that maintaining <i>shelom bayit</i> (familial harmony) should be a prime objective of estate planning.
  Obviously, one maintains familial harmony by fairly distributing his assets in the will. One should take special care to avoid using the will as a tool for revenge. In fact, a <i>beit din</i> might invalidate a will if it is evident that the testator sought to take revenge on a family member (<i>Pachad Yitzchak</i> s.v. <i>Ma’avir Nachalah</i> and <i>Techumin</i> 17:301-311).
  The clearer the parent’s desires concerning the distribution of assets, the smaller the chance of fighting among family members. The <i>Pitchei Choshen</i> (8:168-169) urges one to plan his will with extreme care in order to avoid family disputes. He writes that one should spell out the terms of his will as clearly as possible, determinedly avoiding any ambiguity. An improperly drafted will can lead to horrific consequences, such as those presented in <i>Techumin</i> (20:94-99).
  I believe that one should also avoid discussing the distribution of one’s assets with his heirs; the will should serve as the exclusive (and absolutely clear) determinant of the distribution. Oral instructions create the potential for disharmony, as heirs may note discrepancies between the will and the oral instructions.
  The executor of the will should be chosen on the basis of not only of financial acumen and honesty, but also on ability to resolve conflicts and promote Torah values. He should be familiar with the unique familial dynamics so he can manage challenges prudently and sensitively.
  Furthermore, providing a mechanism for deciding delicate issues, such as designating a specific Rav or <i>beit din</i> to settle any disputes that may arise,5<i class="footnote">See <i>Teshuvot Tzitz Eliezer</i> 5:29 for an example of a rabbinic resolution of a dispute surrounding the interpretation of a will.</i> greatly increases the chances of preserving familial harmony. Potentially contentious issues include transplants, autopsies, end of life health care, telling the truth to patients, arrangements for nursing home care, and burial arrangements.6<i class="footnote">Among the burial matters that one should explicitly clarify is his desired burial location (e.g. Israel, family plot, etc.).</i> The need to stipulate a specific mechanism for resolving such issues is even greater in families in which second marriages have occurred. Special care must be taken in these situations to maintain <i>shelom bayit</i>.
  Attorney Martin Shenkman suggests that in certain cases one should consider including a letter explaining why he chose to distribute the assets in the manner he spelled out in the will – another worthwhile safeguard against familial discord.
  <i>Tzedakah</i> and Truthfulness<i></i>
  In addition to maintaining familial harmony, every will should be in keeping with Torah values of just, righteous behavior. For instance, the <i>Chafetz Chaim</i> specifically encourages making large charitable gifts in wills (<i>Ahavat Chessed</i> 3:4), a point we will discuss in a later chapter. Truthfulness in carrying out a will also carries great significance.7<i class="footnote">Indeed, the Gemara (Shabbat 55a) states that truth is the “seal” of Hashem – the emblem by which He is known. An example of heroic honesty in connection with estates is the story Rav Hanoch Teller (in his work <i>Builders</i> pp. 90-91) relates about Rav Shneur Kotler.</i> This value mandates, among other things, that one present an accurate picture of an estate on any tax filing.
  The Need for a Monetary Will
  According to all authorities, one causes a violation of Halachah if he does not leave a halachically acceptable will to ensure that his estate is distributed properly, because the laws of intestacy (dying without a will) almost always contradict the Torah’s directives for the distribution of an inheritance. Thus, it is proper for every Jew to draft a secular will, and, according to most halachic authorities, to take additional steps, as we shall see. Indeed, Rav Feivel Cohen wrote to me that one is fully obligated to draft these documents. He explains that one who fails to do so violates the prohibition of <i>lifnei iveir lo titein michshol</i> (the prohibition for one to facilitate a violation of Halachah) even though the facilitated prohibition will occur only after his death. Similarly, Rav Yitzchak Elchanan Spektor (in a responsum printed in <i>Teshuvot Mateh Levi</i> 13) rules that one is required to take action to ensure that his heirs abide by the Halachot governing inheritance. He compares this to <i>Tosafot</i>’s ruling (Bava Metzia 30b s.v. <i>Afkerah</i>) that one must take proactive steps to ensure that others do not violate the prohibition of theft.
  Moreover, Rav Feivel Cohen wrote to me that even though the <i>Chaim Uvrachah L’mishmeret Shalom</i> (in his discussion of wills) writes that one should write a will at age fifty, one should write a will considerably earlier than that age. Rav Cohen bases his ruling on the Gemara (Shabbat 153a) that states that one should consider and plan for the possibility that one might die the next day. He notes (<i>Kuntress Midor L’dor</i> p. 6) the vital importance for parents of young children to write a will to name appropriate guardians for their children in case of death or incapacitation.
  Interestingly, the <i>Chaim Uvrachah L’mishmeret Shalom</i> records that Rav Shlomo Kluger wrote a will at age fifty and lived to the age of eighty-six (which was relatively rare in the nineteenth century). Indeed, Rav Ezra Basri writes (<i>Sefer Hatzava’ot</i> p. 5) that one need not be concerned for <i>ayin hara</i> or bad “<i>mazal</i>” as a result of writing a will. He writes that on the contrary, if one’s intentions are to “increase peace in the world,” it “brings one <i>mazal</i>.”
  
  The Halachic Dilemma and Potential Solutions
  
  Although Torah law dictates that wives do not inherit their husbands’ estates and that daughters inherit nothing from a testator who has sons, the most commonly desired distribution today is for sons and daughters to share equally in the estate and for one’s wife (if she is the mother of his children) to inherit the entire estate if he predeceases her. How can one achieve this personal objective without violating the halachic requirements of <i>yerushah</i>? One cannot simply stipulate that he wants his wife1<i class="footnote">Rav Mordechai Willig notes (in an essay entitled “Inheritance Without a Fight,” available at www.torahweb.org) that in the common case of joint ownership of a home or other assets, the surviving spouse probably is the owner according to the Halachah as well (as we discussed in an earlier chapter).</i> and/or daughters to inherit, as Halachah regards this as an invalid stipulation (Bava Batra 8:5). Even though we accept the opinion of Rabi Yehudah that “<i>B’davar sheb’mamon tena’o kayam</i>” (monetary stipulations are valid even if they contradict Torah law; Bava Metzia 94a and Shulchan Aruch E.H. 38:5), stipulations made in contradiction to the Torah rules of <i>yerushah</i> are invalid. The Rambam (<i>Hilchot Nachalot</i> 6:1) explains that the Torah (Bemidbar 27:11) describes the rules of inheritance as “<i>chukat mishpat</i>” (a decree of judgment), meaning that it applies in all circumstances and cannot be overridden by stipulations.
  Thus, we are left in a quandary: how can a person distribute his estate to non-halachic heirs, such as daughters or a wife, in a halachically acceptable manner? We shall discuss this predicament from several angles, starting with the question of whether the principle of <i>dina d’malchuta dina</i>, the halachic obligation to follow the law of the land in which we reside (as codified in the Shulchan Aruch C.M. 369), can be invoked to solve the problem.
  <i>Dina D’malchuta Dina: </i>A Ruling of the Rashba<i></i>
  In a variety of contexts, the Gemara mentions the rule of <i>dina d’malchuta dina</i>, which obligates us to follow civil laws such as taxes and traffic regulations.2<i class="footnote">See our earlier chapter regarding contemporary financial arrangements between a husband and wife for a more thorough discussion of the applicability of this rule when it contradicts the monetary laws of the Torah.</i> However, the rule of <i>dina d’malchuta dina</i> does not apply to <i>yerushah</i>. This point is best illustrated by a responsum of the Rashba (6:254) concerning the following case:
  A woman, whom we shall call “Leah,” daughter of “Reuven,” married “Shimon” and gave birth to a daughter. Shortly afterward, Leah and her daughter both died. Reuven subsequently claimed, based on the law of the land, that he had the right to reclaim the large dowry he had given Leah. Shimon, on the other hand, claimed that he had the right to the dowry as per the Halachah that the husband is the primary heir of his wife. The Rashba responded sharply that the halachic standard prevails over <i>dina d’malchuta dina</i> in such a situation. He writes that <i>dina d’malchuta dina</i> applies only to external matters such as taxes and the functioning of a country, but not to internal matters between Jews. If Jews would embrace the civil laws to govern even internal matters, it would lead to complete abandonment of Talmudic civil law. “In that case,” argues the Rashba, “what would become of the holy books of the Mishnah and the Talmud? God forbid, such a thing must never happen in Israel, lest the Torah wrap itself in the sackcloth of mourning.”
  This responsum of the Rashba is accepted as normative Halachah, cited by both the <i>Beit Yosef</i> (C.M. 26 s.v. <i>Katav Harashba</i>) and the Rama (C.M. 369:11). <i>Dina d’malchuta dina</i>, then, does not override the Halachot governing <i>yerushah</i>. Accordingly, if one does not take active measures to ensure that his estate is distributed in conformity with the Torah’s order of inheritance, his heirs, as defined by civil law, will violate Halachah. If there is no will, the civil authorities will distribute his estate in accordance with the state laws of intestacy, which almost invariably differ from the laws of the Torah (as noted by Rav Feivel Cohen in <i>Kuntress Midor L’dor</i> p. 6). By not taking the necessary measures, one will cause money to be taken from his halachic heirs and to be given to those who are not halachically entitled to the estate. Halachah views this as unmitigated theft on the part of the non-halachic heirs (see <i>Chiddushei Rav Akiva Eiger</i> C.M. 26:1).3<i class="footnote">Beneficiaries who are not halachically entitled to receive their portion of an estate should consult a Rav for guidance on how to rectify this problem.</i>
  Rav Moshe Feinstein’s Ruling
  It is clear from the Rashba that if one dies intestate, Halachah, not civil law, must control the distribution of his assets. Rav Moshe Feinstein, however, argues (<i>Teshuvot Igrot Moshe</i> E.H. 1:104) that a will drafted in compliance with civil law is halachically valid and that the heirs as set forth in the will are not guilty of theft even if Halachah normally excludes them from inheriting. Rav Moshe acknowledges that since a will attempts to bestow a gift (bequest) to be made after the death of the testator, the will normally is not valid in the eyes of Jewish law. This is because halachic heirs inherit immediately upon the death of the testator. The testator then ceases to own the object in question and therefore is unable to enact a proper <i>kinyan</i> (transfer of title) to the beneficiaries (Gittin 13a). Nevertheless, according to the law of the land, one may transfer property after death even though it no longer belongs to the testator. Rav Moshe writes:
  It appears, in my humble opinion, that a [secular] will of this kind, which will definitely be put into effect by the civil authorities of the country in which he resides, does not need a <i>kinyan</i>, for there is no greater <i>kinyan</i> than this [transfer effectuated by the civil law]. Therefore, since a <i>kinyan</i> is not necessary, [the secular will] is halachically effective, even to the extent of receiving money in place of halachic heirs.…And this is a significant basis for the practice [of observant Jews] in this country [the United States] to rely on these types of [secular] wills.
  Critique of Rav Moshe’s Opinion
  Rav Moshe’s ruling aroused great opposition. Dayan Aryeh Leib Grossnass, for instance, wrote a thorough critique of Rav Feinstein’s ruling (<i>Teshuvot Lev Aryeh</i> 2:57). The authorities who concur with Dayan Grossnass include Rav Ezra Basri (<i>Dinei Mammanot </i>3:208-213), Rav Feivel Cohen (<i>Kuntress Midor L’dor</i> pp. 1-4), Rav Zalman Nechemia Goldberg (<i>Techumin</i> 4:342-344), Rav Hershel Schachter (in a lecture to rabbinical students at Yeshiva University), and Rav Mordechai Willig (in an essay entitled “Inheritance Without a Fight,” available at www.torahweb.org). Several classical <i>poskim</i> contradict Rav Moshe’s position, including the <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> C.M. 142), Rav Yaakov Ettlinger (<i>Teshuvot Binyan Tzion Hachadashot</i> 24), and Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:34). All of these authorities reject Rav Moshe’s conclusion and would not sanction the use of a secular will without supplementary halachic mechanisms.
  Dayan Grossnass cites a passage from the Gemara (<i>Temura</i> 25a) that seems to clearly disprove Rav Moshe’s contention. The Gemara teaches that when there is a conflict between an individual’s directive and Hashem’s directive, the latter prevails. For example, if one declares that when a firstborn animal will be born it will be a <i>korban olah </i>(burnt offering), Hashem’s designation of the animal from birth as a <i>bechor</i> (a firstborn, which must be brought as a sacrifice; Shemot 13:2) prevails over the individual’s desire. Similarly, Dayan Grossnass argues, if one stipulates that at death his assets should belong to a halachically unrecognized heir, Hashem’s directive that the assets belong to the halachic heir prevails. Rav Hershel Schachter remarked that he finds this proof particularly convincing.
  Dayan I. Grunfeld (<i>The Jewish Law of Inheritance</i> pp. 81-82) presents another disproof of Rav Moshe’s theory. He cites the following passage from the <i>Sefer Hachinuch</i> (400):
  Hashem teaches that the right of the heir to the hereditary estate is inexorably tied to the estate, and as soon as the individual who transmits the inheritance dies, the heir’s right to the inheritance immediately takes effect on the property.…The relationship of the person who transmits the inheritance to the heir is such as if the bodies of the two persons were glued together, and what emanates from one immediately reaches the other. Hence, <i>Chazal</i> teach that if an individual states, “My son shall not inherit me” or…“My daughter shall inherit me in a case where there is a son,” or [if the testator makes] any similar [stipulation that contradicts the Jewish law of inheritance], these stipulations are entirely invalid. One cannot uproot the word of Hashem, Who ordained that the halachic heir inherits the one who transmits the inheritance.
  As explained by the <i>Sefer Hachinuch</i>, as soon as a person dies, his halachic heirs automatically, without any interruption, possess title to the inheritance. From a halachic perspective, this appears to preclude civil authorities from making a gift on behalf of the deceased. Since the estate belongs to the halachic heirs from the moment of death, a <i>kinyan</i> cannot be enacted on behalf of the deceased, as the estate no longer belongs to him. Therefore, one cannot empower anyone – not even a government authority – to distribute his property in disagreement with Halachah. If an individual signs a secular will (without an adequate halachic supplement), he is effectively directing the civil authorities to take assets improperly from his halachic heirs.
  Accordingly, most <i>poskim</i> require more than a secular will alone to enable one to bequeath his estate to non-halachic heirs. We therefore shall have to resort to several more involved procedures.
  <i>Mitzvah L’kayeim Divrei Hameit</i>
  The Gemara (Gittin 14b) articulates the principle that one must obey the wishes of a deceased person. The source for this rule is Yosef Hatzadik, who honored his father Yaakov’s command to bury him in the Land of Israel. The <i>Mordechai</i> (Bava Batra 600) explains that the Gemara intends this rule to mollify the anxieties of the seriously ill by assuring them that others will honor their instructions should they expire.4<i class="footnote">See <i>Teshuvot Maharsham</i> 2:224:12, who discusses whether this rule is of biblical or rabbinic origin.</i> At first glance, this would seem to allow any testator to impose his wishes for asset distribution upon his heirs and family.
  Unfortunately, this does not fully address our issue. Rabbeinu Tam (cited in <i>Tosafot Gittin</i> 13a s.v. <i>V’ha</i>) limits the applicability of this principle to honoring instructions relating to asset transfers in a situation in which the giver had placed the assets in escrow (deposited them with a third party) before his death.5<i class="footnote">For a discussion of the basis for Rabbeinu Tam’s opinion, see the sources cited in <i>Pitchei Choshen</i> 8:4 footnote 82.</i> Although many <i>Rishonim</i> dispute this ruling, the Shulchan Aruch (C.M. 252:2) codifies Rabbeinu Tam’s view as normative Halachah. Accordingly, the rule of <i>mitzvah l’kayeim divrei hameit</i> does not apply to the posthumous directions of a secular last will and testament, because the money and property involved are not escrowed until after death. 6<i class="footnote">Interestingly, Rav Feivel Cohen wrote to me that money deposited in IRAs is considered to be deposited in the hands of a third party, and <i>mitzvah l’kayeim divrei hameit</i> would apply to such assets even according to Rabbeinu Tam. The <i>Pitchei Choshen</i> (8:1 footnote 65) rules that the same applies to savings accounts (and even to the interest accrued in such an account) in a bank where one designates in writing to whom the money in the account should be given in case of his death. He also rules that it is entirely acceptable to name non-Halachic heirs as beneficiaries of a life insurance policy, and the non-Halachic heirs are entitled to the money they receive from it.</i> Any attempt to “deposit” assets after death with a third party would be ineffective, because the halachic directives for distribution would have already been triggered at the time of death. Additionally, according to the Ran (Gittin 5b in the pages of the Rif), the rule of <i>mitzvah l’kayeim divrei hameit</i> applies only to adults; minor heirs are not obligated to honor the requests of the deceased. 7<i class="footnote">For further discussion and debate concerning this point, see the sources cited in <i>Pitchei Choshen</i> 8:4 footnotes 82 and 87.</i> Thus, the rule of <i>mitzvah l’kayeim divrei hameit</i> does not solve the problems inherent in a secular will if there are minor heirs even according to those who disagree with Rabbeinu Tam.
  Responsa of the <i>Binyan Tzion</i> and <i>Achiezer</i>
  Despite the Shulchan Aruch’s acceptance of Rabbeinu Tam’s ruling as normative, some major <i>Acharonim</i> do not entirely dismiss the dissenting views in the <i>Rishonim</i>. One such authority is Rav Yaakov Ettlinger (<i>Teshuvot Binyan Tzion Hachadashot</i> 24), who was approached by an individual to whom the civil courts had awarded money as stipulated in a secular will. The questioner wanted to know if Halachah entitled him to keep the money in light of the fact that he was not a halachic heir. He thought that he would be required to return the bequests to the halachic heirs, but Rav Ettlinger replied that he could keep the money. Since the questioner was the <i>muchzak</i> (the one in possession of the object in question), the burden of proof fell upon those who sought to extract the money from him, i.e. the halachic heirs. Accordingly, since many <i>Rishonim</i>, including the Ramban (Gittin 13a s.v. <i>L’olam</i>) and the Ritva (<i>ibid</i>. s.v. <i>Rav Zvid</i>),8<i class="footnote">The Shach (252:4) and the <i>Sma</i> (252:8) present the opinion of the Ramban and the Ritva. They believe that <i>mitzvah l’kayeim divrei hameit </i>applies as long as the deceased ordered the halachic heirs to carry out his wishes. A secular will seems to accomplish this goal.</i> disagree with Rabbeinu Tam, the questioner may claim (“<i>kim li</i>”) that he is abiding by the opinions that reject Rabbeinu Tam’s conclusion, making it the responsibility of the halachic heirs to prove that Rabbeinu Tam is correct. Thus, a <i>muchzak</i> is able to keep the money he received under a secular will.
  Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:34) is inclined to endorse Rav Ettlinger’s ruling, though he notes that the <i>Teshuvot Har Hamor</i> (39) and the <i>Teshuvot Chessed L’Avraham</i> (C.M. 43) believe that the <i>muchzak</i> is not permitted to keep the money. Though he does not issue a definitive ruling on this question, Rav Chaim Ozer writes (<i>Kovetz Igrot Achiezer</i>, <i>Divrei Halachah</i> 25) that the practice of <i>batei din</i> is to honor secular wills probated in civil courts, and he reports that the <i>batei din</i> even appoint executors to distribute the deceased’s assets in accordance with the secular will. Dayan Grossnass (<i>Teshuvot Lev Aryeh</i> 2:57) takes this last addition to mean that Rav Chaim Ozer’s leniency does not apply if the assets were distributed by a civil court-appointed executor. In fact, he rules that money received by a non-halachic heir from a secular will probated and distributed by a civil court is considered stolen. One should consult his Rav about this matter, as it is not clear whether this is the conclusive interpretation of Rav Chaim Ozer’s words.
  Even without Rav Ettlinger, Rav Chaim Ozer suggests, we can enforce those parts of secular wills that concern bequeathals to <i>tzedakah</i> based on the rule of <i>amirah l’gavoha k’mesirato l’hedyot</i> (Kiddushin 28b). This rule establishes that a verbal acceptance of financial obligation to a holy cause is equivalent to handing an object to an ordinary individual – both are binding and irrevocable.9<i class="footnote">See <i>Encyclopedia Talmudit</i> (2:40-42) for a discussion of the parameters of this rule.</i> Accordingly, when a testator bequeaths money to <i>tzedakah</i> in a secular will, Halachah might regard his statement of intent as the equivalent of depositing the money in the hands of the charity, which even Rabbeinu Tam would accept as a valid transfer.
  We must emphasize that Rav Ettlinger and Rav Chaim Ozer do not condone sole reliance upon a secular will <i>l’chatchilah</i> (ideally). They merely argue that <i>b’dieved</i> (post facto), the legatees may keep the money distributed to them and need not return it to the halachic heirs. Moreover, Dayan Weisz (<i>Teshuvot Minchat </i>Yitzchak 6:165) disagrees with Rav Ettlinger and Rav Chaim Ozer and rules that a <i>beit </i>din will not honor a will probated in a secular court.10<i class="footnote">For further discussion of whether a <i>beit din</i> will honor a will probated in civil court based on the principle of mitzvah l’kayeim divrei hameit, see Pitchei Choshen 8:4 footnote 85.</i> Accordingly, the principle of <i>mitzvah l’kayeim divrei hameit</i> does not sanction the use of a secular will alone and should not be relied upon as a solution to the halachic requirements of <i>yerushah</i>.
  A New, Practical Solution
  A new suggestion, based on <i>mitzvah l’kayeim divrei hameit</i>, may yet provide a halachically viable solution to the <i>yerushah</i> issues in a manner that is consistent with common secular estate planning. This involves establishing a revocable living trust, a contractual arrangement between a grantor who forms the trust, co-trustees (preferably the grantor and another person) who manage the trust, and beneficiaries (the grantor and his family members, including non-halachic heirs) who receive the economic benefits of the trust. This approach to a living trust is fundamentally different from the more simplistic approach of most living trusts, in which the person who forms the trust would be the sole grantor, trustee, and beneficiary until death. The latter approach is less likely to be respected as a halachically valid legal entity.11<i class="footnote"><i>Poskim</i> in general do not recognize legal entities that lack substance. For example, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:90) does not permit a store to operate on Shabbat merely because its owner incorporated the business. Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:28) rules that a person is not shielded from <i>ribbit</i> (interest) restrictions simply because he borrows money from a corporate entity – if Jews control and run that corporation, the borrower violates the <i>ribbit </i>prohibition (see, though, <i>Teshuvot Igrot Moshe</i> Y.D. 2:62). By the same token, Rav Mordechai Willig told me that an object of <i>avodah zarah</i> (idolatry) or <i>chametz</i> on <i>Pesach</i> that is passed on as part of an estate must be disposed of by the halachic heirs, for they cannot claim that the estate owns the items.</i> If, however, the former kind of trust can be regarded by Halachah as a legal entity (with participants other than the grantor constituting the necessary third party), and if the subsequent transfers of assets to the trust can be characterized as lifetime gifts, then this commonly-used planning technique may afford a new method of complying with the Torah requirements concerning <i>yerushah</i>.
  Rav Feivel Cohen wrote two letters to me concerning this issue. In the first, he wrote that Halachah does not recognize a trust as a legal entity <i>per se</i> – merely placing assets in a trust is not regarded as placing them in the hands of a third party. He believes that money deposited in a trust still belongs to the grantor according to Halachah, since the grantor can revoke the trust at any time that he wishes to do so. In the second letter, however, Rav Cohen clarified that if a trust has a co-trustee who can legally spend the trust money on behalf of the beneficiaries, the money is considered to be deposited in the hands of a third party, allowing the application of <i>mitzvah l’kayeim divrei hameit</i>. Rav Cohen considers this form of a trust to have more substance, granting it recognition as a separate entity. This major ruling provides a practical mechanism for leaving assets to non-halachic heirs in a manner that is consistent with Halachah. One should consult his Rav and his attorney to check whether this is a viable option for his estate plan.
  <i>Kibbud Av Va’eim </i>and Moral Considerations<i></i>
  One should also consider that even in a case in which Halachah does not technically mandate honoring the wishes of the dead, one may have an ethical obligation to act <i>lifnim mishurat hadin</i> (beyond the letter of the law) and honor them anyway (see, for example, <i>Teshuvot Maharsham</i> 2:224 and Rav Ezra Basri’s <i>Sefer Hatzava’ot</i> p. 12). Rav Yaakov Kaminetzky (cited in <i>Emet L’yaakov Al Shulchan Aruch </i>p. 455) rules that even though, strictly speaking, one is not obligated to honor a secular will that is halachically invalid, it nevertheless is “<i>hiddur mizvat kibbud av va’eim</i>” (an enhanced level of fulfilling the obligation to honor one’s parents) to do so.12<i class="footnote">The principle of <i>mitzvah l’kayeim divrei hameit</i> also has an ethical dimension (see Ramban to Gittin 13a s.v. <i>L’olam</i>). This serves as another moral imperative for the halachic heirs to honor the dictates of a secular will.</i>
  In practice, this means that if one’s parents directed in the will that the estate be divided equally among their sons and daughters, the halachic heirs should give of their halachic entitlement to the non-halachic heirs as a gift. This can be accomplished very easily with a <i>kinyan sudar</i>, a transaction that is effected by the beneficiary or his agent giving a symbolic token to the grantor.13<i class="footnote">Most people are familiar with this <i>kinyan</i> from the sale of <i>chametz</i> before <i>Pesach</i> and from the execution of the <i>ketubah</i> before a wedding.</i> It is advisable for a person to ask his Rav for help in executing the <i>kinyan sudar</i> properly, and to consult his attorney regarding the tax consequences of performing such a <i>kinyan</i>. If, however, the halachic heirs insist on following the strict letter of the law and are unwilling to grant portions of the estate to the non-halachic heirs in accordance with the will, the problem remains unsolved. Thus, there still is a need for a means for non-halachic heirs to inherit even according to technical Halachah.14<i class="footnote">I once posed a related question to Rav Zalman Nechemia Goldberg. A testator dictated in his secular will that money be given to a specific “secular” Jewish charity – an Israeli hospital that serves an overwhelmingly secular Jewish community. The testator’s children thought that the money should instead be given to a more “religious” Jewish charity and asked if they could deviate from the wishes of the deceased. The children felt that the secular charity had a much larger pool of potential donors, leaving the religious charity with more of a need for the money. Rav Zalman Nechemia ruled in accordance with the aforementioned decision of Rav Chaim Ozer that money designated as <i>tzedakah</i> must be given even though the rest of the will is halachically invalid. He ruled that it is improper to change the charity to one other than that designated by the testator.</i>
  <i>Shtar Chatzi Zachar</i> and its Contemporary Variation<i></i>
  As we have discussed, modern patterns of estate planning necessitate a method to facilitate non-halachic heirs’ inheritance of a portion of the estate without violating Halachah. American <i>poskim</i> in the last few decades have developed a variation of the traditional <i>shtar chatzi zachar</i> document that can accomplish this goal, providing an ideal solution to <i>yerushah</i> in a modern context.
  The Traditional<i> Shtar Chatzi Zachar</i>
  One classic method of distributing an inheritance to daughters is through a <i>shtar chatzi zachar</i>. The Rama (E.H. 113:2 and C.M. 281:7) records that this was the commonly accepted way to provide each daughter with a share in the estate. This procedure involves the father obligating himself at the time of the daughter’s wedding, as part of the dowry he provides for his daughter, to pay her a very large sum of money (larger than the expected value of the estate), so that the heirs will be motivated to avoid the debt. He stipulates that the debt will be <i>chal</i> (effective) only as of one hour preceding his death. This debt passes to the halachic heirs, generally the sons, although the concept can be extended to any stages of the Torah order of <i>yerushah</i>. However, the father includes a provision voiding the debt if the halachic heirs give the daughters a share (e.g. each daughter receives one-half of what each male child receives) of the inheritance.
  The Maharil (<i>Teshuvot Maharil</i> 88), who mentions writing “documents of inheritance” on behalf of one’s daughters, is a source for the practice recorded by the Rama. The <i>shtar chatzi zachar</i> was common among Ashkenazic Jews, as is evidenced by the extensive responsa literature surrounding it (summarized in the Pitchei Teshuvah C.M. 281:8-13). Indeed, the <i>Kesef Kedoshim</i> (C.M. 282) writes, “We have not heard that even the most pious of individuals has refrained from writing a <i>shtar chatzi zachar</i>.”
  This technique raises a number of issues. If the debt is made too large, the <i>shtar</i> may be challenged as an <i>asmachta</i>.15<i class="footnote"><i>Asmachta</i> refers to a conditional obligation known to have been accepted under the assumption that the condition never would be fulfilled; see Bava Metzia 66a and 73b and Nedarim 27b.</i> The testator can remedy this risk by inserting a clause stating that the debt takes effect “as of now” (<i>mei’achshav</i>) and was effected with a <i>kinyan</i> in a <i>beit din chashuv</i> (an esteemed rabbinic court; <i>Kuntress Midor L’dor</i> pp. 14-15 and <i>Pitchei Choshen</i> 8:175).16<i class="footnote">The impact of executing a <i>kinyan </i>“mei’achshav” and of having it effected in an “esteemed rabbinic court” is presented in Shulchan Aruch (C.M. 207:14-15) and is explained at length in <i>Gray Matter 1</i> pp. 13-14.</i>
  In terms of applicability to the contemporary American situation, one might wonder whether creating such a debt creates concern for gift tax consequences. Rav Feivel Cohen wrote to me that it is halachically feasible to name a charity (instead of a daughter) as the creditor to help address such concerns. Rav J. David Bleich, in his contemporary adaptation of this <i>shtar</i>, addresses this concern by adding a clause that includes the statement, “This instrument shall be regarded as of no effect whatsoever in any proceedings brought before any civil court of competent jurisdiction.”17<i class="footnote">The fact that the document is not applicable in civil law does not detract from its halachic validity; see <i>Teshuvot Chatam Sofer</i> O.C. 113, <i>Teshuvot Divrei Chaim</i> O.C. 2:37, and Rav Shlomo Yosef Zevin’s <i>L’or Hahalachah</i> p. 122. </i> <i>Mechon L’hoyroa </i>(<i>Making a Will the Jewish Way</i> p. 7) advises that the executed <i>shtar</i> be kept with a third-party, Orthodox Jewish attorney who will store it with the documents of the will and/or trust and who will present it only if the halachic heirs challenge the validity of the secular will in <i>beit din</i>.18<i class="footnote">Rav Hershel Schachter (in a <i>shiur</i> delivered at Yeshiva University) added that the <i>shtar chatzi zachar</i> does not violate the rule of e<i>in bereirah</i> (there is no retroactive determination of facts; see <i>Encyclopedia Talmudit</i> 4:216-246 for a full explanation) for biblical-level obligations. Even though the size of the share that the daughter will receive will be determined only after the day of death, we apply the rule of <i>ein bereirah</i> only regarding the primary obligation, not the details of the implementation, as explained by the Ran (Nedarim 45b s.v. <i>Rabi Eliezer</i>). In our case, the primary obligation is the debt; the fact that the debt exists is not clarified retroactively. The potential release from the debt and the details of implementation (the precise size of a half share in the estate) are clarified retroactively, but these are not subject to the rule of <i>ein bereirah</i>.</i>
  <i>Shtar Shaleim Zachar</i>
  In addition to the <i>shtar chatzi zachar</i>, there is another traditional approach to including daughters in wills. Rav Zalman Nechemia Goldberg (<i>Techumin</i> 4:344) notes that the Ketzot Hachoshen (33:3) refers to the use of a <i>shtar shaleim zachar</i>, which, using the same mechanism as the <i>shtar chatzi zachar</i>, gives daughters a full share in the inheritance.19<i class="footnote">Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 1:110) also makes reference to this type of document.</i> One may legitimately make use of this mechanism. Indeed, Rav Asher Weiss relates that Rav Akiva Eiger wrote a <i>shtar shaleim zachar</i> at his daughter’s wedding to the <i>Chatam Sofer</i>.
  Contemporary Variations on the<i> Shtar Chatzi Zachar</i>
  In the past few decades, American <i>poskim</i> have devised a contemporary variant of the traditional <i>shtar chatzi zachar</i>. In many communities, a dowry is no longer expected, so the <i>shtar</i> is not executed at the time of the wedding. Rather, a supplement to a secular will is written by the testator wherein he records that a debt was made to the non-halachic heirs, again with the stipulations that it will take effect an hour before death and that it will be waived if the halachic heirs follow the dictates of the secular will. The debt is formally created by the testator accepting a symbolic token – the <i>kinyan suddar</i> – preferably under the guidance of a Rav who can ensure that this is done properly.
  There are at least five alternative versions of how to create such a document. Rav Cohen presents somewhat lengthy English and Hebrew documents in his <i>Kuntress Midor L’dor</i>.20<i class="footnote">See <i>Pitchei Choshen</i> 8:170-171, who questions many of the concerns Rav Cohen endeavors to circumvent.</i> A shorter version is presented by the <i>Mechon L’hoyroa</i> in its <i>Making a Will the Jewish Way </i>(p. 10 in the Hebrew section and p. 8 in the English section), although it requires that a separate document be written on behalf of each non-halachic heir. Rav Bleich has developed his own version, as has Rav Mordechai Willig (<i>Chavrusa</i>, <i>Kislev</i> 5740 and in the aforementioned article available at www.torahweb.org). Rav Willig’s version is quite simple and straightforward, and many in the Orthodox community make use of it.21<i class="footnote">Because of these advantages, the Rabbinical Council of America has chosen Rav Willig’s version to be posted for download on its website, www.rabbis.org.</i> Rav Hershel Schachter’s ideas regarding this <i>shtar</i>, which constitute the fifth version, appear in the <i>Journal of Halacha and Contemporary Society</i> (1:130-132).
  Rav Schachter explained to me that a testator merely needs to sign the <i>shtar chatzi zachar</i> - no further action is required. It takes effect even though the beneficiary of the debt is unaware of it because of the halachic principle “<i>Zachin l’adam shelo b’fanav</i>” (one may acquire something beneficial on behalf of another individual even if the latter is unaware of the acquisition; Gittin 1:6). The heirs, both halachic and non-halachic, also need not be aware of this document, Rav Schachter explained, as all of the transfers happen automatically. Whether they know it or not, the non-halachic heirs receive the money as a result of the need to relieve the halachic heirs of the conditional debt, not as a proper inheritance. The document attesting to the conditional debt is needed only to uphold the halachic validity of the secular will if the halachic heirs challenge it in <i>beit din</i>; the will can be executed even without the heirs’ awareness of the document’s existence. The document itself, though, must be deposited with someone other than the testator in order for the acquisition of the debt to take effect, since the process of <i>zachin l’adam shelo b’fanav</i> involves one person handing something to another person to acquire on behalf of a third party.
  Rav Cohen (<i>Kuntress Midor L’dor</i> pp. 24-25) requires that steps be taken to render the secular will tamper-proof according to halachic standards. However, none of the other American <i>poskim</i> who address this issue has stated such a requirement. First, <i>poskim</i> have debated for centuries as to whether the standards of non-Jewish courts for rendering documents tamper-proof are accepted by Halachah (see the two opinions cited in Rama C.M. 68:1 and <i>Aruch Hashulchan</i> C.M. 68:6). Second, the measures taken by American courts are quite extensive, and therefore might be acceptable even according to the stricter opinion.22<i class="footnote">See Martin Shenkman’s <i>Estate Planning</i> pp. 102-103 for details regarding these standards.</i> Moreover, Attorney Martin Shenkman informed me that some of the measures that Rav Cohen advocates might render the document invalid in civil court.
  Should a Minor Portion of One’s Estate be Divided According to the Torah Standards?
  The <i>Pitchei Choshen</i> (8:175 note 2) urges that a significant portion of one’s estate be designated to be distributed in accordance with Torah law (such as the <i>bechor</i> receiving a double portion and the daughters not receiving a portion if there are sons). Rav Hershel Schachter (in a <i>shiur</i> delivered at Yeshiva University), though, recommended that only a token amount (such as one thousand dollars) be distributed in accordance with the traditional halachic standards. Indeed, Rav Mordechai Willig (in the aforementioned essay available at www.torahweb.org) echoes Rav Zalman Nechemia Goldberg’s approach (<i>Techumin</i> 4:349) that a small portion of the estate, such as <i>sefarim</i> (holy books), should be divided in accordance with the Torah’s laws of inheritance. On the other hand, both Rav Cohen and the <i>Mechon L’hoyroa</i> make no mention of disbursing any amount in this fashion. Rav Cohen wrote to me that in principle he agrees with the <i>Pitchei Choshen, </i>but that he is concerned that this will cause bitter animosity in families. One solution to this problem would be to follow Rav Goldberg, Rav Schachter, and Rav Willig and designate only a nominal amount to be distributed according to Halachah, a compromise that will both recognize the Torah laws of <i>yerushah</i> and preserve family harmony.23<i class="footnote">Rav Schachter told me that we find other cases of technical halachic circumvention where steps are taken to observe the Torah law at least in a minimal fashion. He noted that Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 4:62) cites the <i>Ben Ish Chai</i> (year one, end of <i>Parashat Ki Tavo</i>), who refers to the practice of pious Jews who, after writing a <i>prozbu</i>l (a document to circumvent the cancellation of debt at the end of the <i>shemittah</i> year), lend a nominal sum to a friend. After Rosh Hashanah, when the borrower comes to pay the loan, the lender refuses to accept repayment and states, “<i>Meshameit Ani</i>” (I cancel the loan or the loan is canceled), thus fulfilling the cancellation of debts mandated by Halachah. Rav Ovadia notes that in order for this method to be effective, one must stipulate that the loan is due prior to the eve of Rosh Hashanah. Similarly, Rav Shlomo Yosef Zevin (<i>L’or Hahalachah</i> p. 126) records the practice of those observant farmers who rely on the <i>heter mechirah</i> (the sale of Israeli farm land to a non-Jew to avoid <i>shemittah</i> agricultural restrictions) to set aside a portion of land to be excluded from the sale so that <i>shemittah</i> regulations can be kept at least on a small parcel of the field.Rav Schachter added that a nominal amount of the estate should be divided in accordance with Torah rules only if this will not create animosity within the family.</i>
  Lifetime Gifts
  Another method by which one may provide daughters with a share in the inheritance is to make a gift to them during his lifetime. Although daughters do not inherit, a person is perfectly permitted to present them with monetary gifts while he is alive. Attorney Martin Shenkman informs me that there are two serious drawbacks to giving such gifts. First, many personal and practical problems are created. If substantial gifts are made to the daughters while the parents are alive, considerable resentment from the sons may result. Practically, it is difficult to equalize lifetime gifts to the daughter with testamentary bequests to the sons on an after-tax basis. Secondly, Halachah recognizes a gift as valid only if the donor owned the money or property at the time he made the gift – one cannot transfer title of something that he does not yet own or does not yet exist (<i>ein adam makneh davar shelo ba la’olam</i>). Thus, one can give to a daughter only that which he already owns, as noted by the Rama (C.M. 281:7), so his gift can account for all the same properties as the will only if the gift is given immediately before death. Therefore, it is difficult to carry out equal distribution to children using outright lifetime gifts, making the modern variation of the <i>shtar chatzi zachar</i> much more preferable.24<i class="footnote">Israeli <i>poskim</i> do advocate including non-halachic heirs in the estate by making genuine gifts (as opposed to those of <i>shtar chatzi zachar</i>) that will take effect an hour before death (see <i>Gesher Hachaim</i> 1:37-42 and Rav Shlomo Sha’anan’s essay in <i>Techumin</i> 13:319-320). This is not a suggested method for those residing in the United States because of gift tax implications.</i>
  Conclusion
  Several mechanisms are available to those who wish to include non-halachic heirs in their wills. Although secular wills do not, according to most opinions, suffice alone, they do generate some level of obligation upon the heirs. More significantly, the methods of revocable living trusts (according to Rav Feivel Cohen) and <i>shtar chatzi zachar</i> (in its various forms) provide full flexibility to distribute one’s estate as he sees fit. God willing, the use of these mechanisms will enable families to achieve both full adherence to Halachah and <i>shelom bayit</i>.
  
  Disinheritance
  
  Previously, we spoke of the need to supplement a secular will to avoid violation of the Halachot of <i>yerushah</i>. Many people ask why these mechanisms do not offend the spirit of Jewish law, given that the halachic heirs do not receive all of the money and property that they are entitled to according to biblical and Talmudic sources. In this chapter, we will attempt to answer this and other related questions.
  Ethical Objections to Altering Inheritance
  If a man will have two wives, one beloved, one hated, and they bear him sons, the beloved one and the hated one, and the firstborn son is the hated one’s. Then it shall be that on the day that he passes on to his sons whatever will be his, he cannot give the right of the firstborn to the son of the beloved one in place of the son of the hated one, the firstborn (Devarim 12:51-61).
  The general lesson of these <i>pesukim</i> is that family members must not permit rivalries or personal preferences to interfere with their obligations and family relationships. For example, a parent should not permit favoritism of one child over another to influence his adherence to Torah law or his behavior toward his children. <i>Chazal</i> caution us against giving even the smallest degree of advantage to one child over the others so as to avoid causing jealousy. This would seem to rule out the acceptability of deviating from the Torah order of <i>yerushah</i>, even when it is technically possible.
  A similar conclusion emerges from the Mishnah’s statement (Bava Batra 8:5) that if one gives his assets to others and leaves nothing for his sons to inherit, what he has done is halachically valid, but “<i>Ein ruach chachamim nochah heimenu</i>” (the sages are not pleased with him). In other words, his actions violate the spirit of Halachah.1<i class="footnote">It should be noted that the term “<i>Ein ruach chachamim nochah heimenu</i>” is not a mild rebuke. The Rashbam (commenting to Bava Batra 133b s.v. <i>Ein</i>) explains this phrase to mean that <i>Chazal</i> are deeply disturbed by someone disinheriting his halachic heirs. The Rashbam’s comments are cited by the <i>Sema</i> (C.M. 282:2) in a halachic context.</i> Although Rabban Shimon ben Gamliel asserts that one who transfers his assets away from misbehaving children should be “remembered for good,” the Gemara (Bava Batra 133b) sides with the authoritative words of Shmuel that one should not engage in “<i>avurei achsanta</i>” (shifting inheritance) even from a bad son to a good son. The Gemara (Ketubot 53a) explains that one cannot know what will become of the “bad” son’s descendants – perhaps they will be righteous and will deserve the financial support of their ancestor. Shmuel’s opinion is codified by the Rambam (<i>Hilchot Nachalot</i> 6:11) and the Shulchan Aruch (C.M. 282). The <i>Sema</i> (282:1) adds that the “bad” son should not be disinherited even if he did not demonstrate proper respect for his father during his lifetime.
  When is Disinheritance Permitted?
  Even though the Gemara’s reasoning for Shmuel seems to overlook the bad son’s character, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 2:50) rules that if the “bad” son has completely abandoned a Torah lifestyle, he may be disinherited. Rav Moshe explains that it is extremely unlikely that a descendant of such an individual will lead a Torah lifestyle.2<i class="footnote">For further discussion of this issue, see <i>Teshuvot Maharam Schick</i> C.M. 43 and <i>Teshuvot Doveiv Meisharim</i> 1:97.</i>
  It is important to note that Rav Moshe penned this responsum in 1965, prior to the emergence of the “<i>ba’al teshuvah</i> movement.” Today, it is possible that a descendant of one who has abandoned a Torah lifestyle will return to the proper path, so Rav Moshe’s ruling might not be applicable. Moreover, Rav Moshe does not actually forbid one to leave assets for a child who has abandoned the Torah. Indeed, in many instances, the child’s alienation from Torah may be deepened if he is disinherited. These matters are complex and vary from case to case. A Rav and a competent attorney should both be consulted if one is faced with such a problem, since both the halachic and the legal issues involved are extremely intricate.
  Attorney Martin Shenkman suggests that a more beneficial alternative to disinheriting a child who has abandoned a Torah lifestyle is to establish a trust which, if carefully and properly planned, will reward the child for adhering to Jewish tradition. The trustee, who should be someone the testator trusts to act appropriately, may be given the discretion to allocate the money for many purposes, so that he may choose to expend funds for Yeshiva education, Orthodox summer camps, visits to Israel, and the like. Mr. Shenkman advises that a statement in a will that any child or grandchild who intermarries will be disinherited might not be enforced by a secular court, as it is a violation of secular public policy. Leaving assets in a trust with multiple beneficiaries and appointing trustees who understand one’s concerns and wishes may be a more viable alternative.
  This method has been endorsed by several <i>poskim</i>. Rav Ovadia Yosef (<i>Teshuvot Yabia Omer </i>8 C.M. 10) offers a similar solution. In addition, Rav Ezra Basri (<i>Sefer Hatzava’ot</i> p. 6) writes:
  One who realizes that his adult children will act irresponsibly with their money and is concerned that they will waste their inheritance on gambling or some other frivolous activity…should appoint trustees over the money he wishes to bequeath these children to ensure that it is properly invested. The trustees should be instructed to give the children a limited amount of money each month.3<i class="footnote">Rav Basri cites the <i>Me’iri </i>(Bava Batra 133b) as a source for this ruling.</i>
  In all cases, it must be strongly emphasized that a will must not be used as a tool for revenge. The Torah explicitly forbids taking revenge (Vayikra 19:18), and this prohibition applies no less on the deathbed.
  Disinheriting Sons in Favor of Daughters
  The aforementioned Gemara (Bava Batra 133b) also teaches that it is highly improper to disinherit sons in favor of daughters. Accordingly, it would appear at first glance that the mechanisms to present daughters with a share in the estate described previously should not be used. Although they successfully enable one to avoid violating the letter of the Jewish law, they appear to violate its spirit. This question was in fact raised many centuries ago (see <i>Nachalat Tzvi</i> 12:2).
  There are several possible answers to this problem, two of which we shall review. First, the Gemara (Ketubot 53a) explains that one may divert money to a daughter to improve her marriage prospects. Rav Zalman Nechemia Goldberg (<i>Techumin </i>4:345) adds that this reasoning permits including even a married daughter in a will, because if it is known when she is single that Halacha allows for the possibility that she will be included in the will after she is married, her marriage prospects would be improved. Second, the Ketzot Hachoshen (282:2) cites the <i>Tashbeitz</i>’s ruling (3:741) that the negative attitude <i>Chazal</i> maintained towards disinheriting halachic heirs does not apply if the halachic heirs are provided with a nominal share in the estate.4<i class="footnote">Interestingly, Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 8 C.M. 9) permits giving a son who studies Torah full-time most of the <i>yerushah</i>, provided he leaves a significant sum to his other sons.</i> Although some authorities disagree (see <i>Teshuvot Chatam Sofer</i> C.M. 151, Pitchei Teshuvah C.M. 282:1, and <i>Pitchei Choshen</i> 8:111), Rav Zalman Nechemia writes that the widespread use of the <i>shtar chatzi zachar</i> throughout the past four centuries indicates that the accepted practice is to follow the opinion of the <i>Tashbeitz </i>and Ketzot Hachoshen.5<i class="footnote">Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe </i>C.M. 2:49) does not recommend following the rulings of the <i>Tashbeitz</i> and the Ketzot Hachoshen. Instead, he counsels leaving the halachic heirs “something significant,” which he believes to be one fifth of the estate. On the other hand, Rav Moshe writes in a second responsum (<i>Teshuvot Igrot Moshe</i> C.M. 2:50) that if one acts in accordance with the <i>Tashbeitz </i>and Ketzot Hachoshen, “One should not say about him that he has acted improperly.” In the latter <i>teshuvah</i>, two of the halachic heirs were left one thousand dollars each (in 1966). Rav Moshe considered this sufficient to satisfy the view of the <i>Tashbeitz </i>and Ketzot Hachoshen.</i> Thus, presenting daughters with a share in the estate through the mechanism of a <i>shtar chatzi zachar</i> or a contemporary variation thereof does not constitute a violation of the spirit of Jewish law.6<i class="footnote">For a somewhat different approach to this issue, see Rav Feivel Cohen’s<i> Kuntress Midor L’dor</i> (pp. 43-44).</i>
  We noted earlier that the Ketzot Hachoshen mentions the option of leaving a daughter a full share in the <i>yerushah</i> and that Rav Akiva Eiger wrote such a <i>shtar </i>for his daughter upon her marriage to the <i>Chatam Sofer</i>. Rav Hershel Schachter, in turn, told me that today one should give his daughters a full share in the <i>yerushah</i> lest there be bitterness and acrimony in the family.7<i class="footnote">Rav Schachter told me that he is following the lead of Rav Shlomo Zalman Auerbach, who also gave such advice (as reported by Rav Meir Goldvicht).</i> Indeed, Rav Yitzchak Herzog (<i>Techukah L’yisrael Al Pi Hatora</i>h 2:110) records that the famed author Shmuel Yosef (“Shai”) Agnon reports that in pre-war Galicia, a great Chassidic Rebbe died and his sons asserted their halachic right to the entire <i>yerushah</i>, whereupon they received the stern disapproval of the entire regional Jewish community. Rav Yaakov Kaminetzky (cited in <i>Emet L’yaakov Al Shulchan Aruch</i> p. 455) expresses a similar sentiment, stating, “In today’s times, it is proper for the daughters to receive an appropriate share of the estate, and it is not considered <i>avurei achsanta</i>. However, the sons should also receive an appropriate share of the estate.” Rav Yechiel Michel Tukachinsky (<i>Gesher Hachaim</i> 1:41-42) espouses a similar approach. Rav Binyamin Rabinowitz-Teumim (in an essay published in <i>Techukah L’yisrael Al Pi HaTorah </i>2:224-226) explains that in an age when women are expected to contribute to the financial well-being of their families, daughters also need a share in the <i>yerushah</i>. Thus, there is ample room to validate including one’s daughters in his will in today’s environment despite <i>Chazal</i>’s statements of general disapproval.8<i class="footnote">For further discussion of <i>avurei achsanta</i>, see <i>Teshuvot Minchat Yitzchak</i> (3:135) and <i>Teshuvot Sheivet Halevi </i>(4:216).</i>
  Disinheritance in Favor of Charity
  The Rama and later authorities give several different opinions regarding how much of a person’s estate may be designated for charity in place of the halachic heirs. The Rama (Y.D. 249:1) seems to permit one to donate his entire estate to charity. Rav Akiva Eiger (<i>ibid</i>. s.v. <i>Kol</i>), however, cites the view of the <i>She’iltot</i> that one should not divert more than one-third of his estate. The <i>Aruch Hashulchan</i> (Y.D. 249:1) rules that one may leave up to half of his estate to charity, reasoning that one may “take a portion alongside his inheritors – half for himself and half for his heirs.” Arguably, one whose estate is unusually large may leave a much larger percentage of his estate to charity, as the halachic heirs nevertheless will receive a sufficient amount of money. Rav Feivel Cohen, however, wrote to me that even a very wealthy person should follow the <i>Aruch Hashulchan</i>’s reasoning and not give more than half of his estate to <i>tzedakah</i>. One should consult his Rav about this issue.
  Generous charitable bequests are encouraged, as they address the needs of the <i>neshamah</i> of the testator. The Gemara (Ketubot 67b) records that Mar Ukva had donated a considerable amount of money during his lifetime. However, prior to his death, he donated half9<i class="footnote">This is the standard version of the text; other versions give different amounts.</i> of his estate to <i>tzedakah</i>.10<i class="footnote">This story is the basis of the <i>Aruch Hashulchan</i>’s limit on how much of one’s estate may be reserved for his own <i>neshamah</i>’s welfare.</i> He explained, “I have prepared few provisions for the long trip that I am about to embark on.” Mar Ukva was concerned that he would not have sufficient merit when he entered the World to Come.11<i class="footnote">This idea is developed at length in the <i>Chafetz Chaim</i>’s work <i>Ahavat Chessed</i> (<i>Inyanei Gemilut Chassadim</i>:14 note 1).</i> Accordingly, Rav Feivel Cohen wrote to me that it is appropriate for a Rav and/or a financial advisor to urge people to leave considerable gifts to <i>tzedakah</i> in their wills. Rav Hershel Schachter (<i>Tradition</i> 29:4:90) cautions, though, that “It should be emphasized that it is prohibited to pressure older people, weak in mind and in body, to bequeath their monies to charities against their wishes.”
  Rav Elazar Meir Teitz related to me that his father, Rav Pinchas Teitz, strongly urged his congregants to leave at least ten percent of their estates to charity, and he in fact did so in his own will. It also should be noted that a trust can be established to motivate children to give charity throughout their lives. This issue, like so many others, requires consultation with a Rav.
  Conclusion
  Whatever mechanism one uses to comply with the Torah requirements of <i>yerushah</i>, it should be handled with care and sensitivity for all people involved, with consideration for fundamental Torah values and with the recognition of the importance of bequeathing some amount to <i>tzedakah</i>.
  
  Health Care Proxies and Living Wills
  
  Proper estate planning includes drafting a health care proxy, which designates someone to make health care decisions on one’s behalf in case of incapacitation, and possibly a living will, which gives specific directions regarding end-of-life medical care. It is essential for every Orthodox Jew to sign at least the first of these documents, and possibly both, to ensure that he will be treated in accordance with Halachah vis-à-vis various medical issues. These issues include end-of-life medical care, defining death, organ donations, autopsy, burial, and other important matters. The halachic approach to these issues differs greatly from what is generally accepted in American society. Moreover, since many disputes exist regarding these Halachot, one must take steps to empower a Rav to render decisions on these matters. Rav Feivel Cohen (in a <i>shiur </i>delivered to the Council of Young Israel Rabbis) stated that he himself signed a health care proxy and expected others to follow his example. Failing to sign a halachically approved health care proxy and (possibly) a living will may make it difficult, or even impossible, to assure that one’s health care decisions will be made in accordance with Halachah.
  In this essay, we shall discuss the various issues that arise when treating dying patients, and how health care proxies and living wills can help resolve those issues.
  Directly Hastening Death
  Halachah categorically forbids any form of active euthanasia. Indeed, the Shulchan Aruch (Y.D. 339:1) rules that anyone who hastens death, even in the slightest, is guilty of murder. One must therefore take great care not to accelerate death in any way when caring for an individual who is very close to dying (<i>gosseis</i>). For example, if touching the <i>gosseis</i> would hasten death, it is forbidden. Dr. Abraham S. Abraham (<i>Nishmat Avraham</i> 2:244) writes that one may not even administer routine hospital procedures to a <i>gosseis</i>, such as taking blood pressure and temperature, if these procedures will not help him survive, because even such standard procedures may precipitate death, and hence cannot be justified halachically if they do not directly benefit the patient. For similar reasons, Rav Hershel Schachter stated (at a symposium in 2006 sponsored by the Orthodox Union) that it is never permissible to remove a ventilator from a patient if doing so will cause death.1<i class="footnote">This appears to constitute the consensus rabbinic opinion; see <i>Teshuvot Minchat Shlomo</i> (2:82:2), <i>Teshuvot Tzitz Eliezer</i> (14:81), Rav Levi Yitzchak Halperin (<i>Halachah Urefuah</i> 2:146-168), and Rav Mordechai Willig (<i>Beit Yitzchak</i> 36:44-49). Rav Willig discusses the option, to be used only in very limited circumstances, of reducing the respirator to the rate of normal breathing and the percentage of oxygen to that found under usual conditions. Also see <i>Teshuvot Tzitz Eliezer</i> 13:89 and 14:81 regarding the propriety of placing a patient on a ventilator that is attached to a timer set to turn off automatically such that it will need to be restarted later.</i>
  Withholding Medical Treatment
  Generally speaking, Halachah considers passive euthanasia comparable to active acceleration of death – the Shulchan Aruch (Y.D. 336:1) writes that one who withholds medical treatment “sheds blood.” Nevertheless, Halachah might allow for withholding certain treatments from a <i>gosseis</i> in extremely limited situations.2<i class="footnote">We must stress that this applies only to one who is near death. Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:91:24), for example, writes that all care must be given to a paralyzed individual even though he is greatly pained by his situation, would prefer death to his current state, and constitutes an enormous psychological and financial burden on his family. </i> The Rama (<i>ibid</i>.) writes that one may, for instance, ask someone to stop chopping wood if the noise is keeping a deathly ill individual from dying. The Rama permits this because “This is not an action, but only the removal of an impediment [to death].”
  Obviously, it is extremely difficult to distinguish between the categories of withholding treatment and removing impediments. Dr. Abraham S. Abraham (<i>Nishmat Avraham</i> 2:245-246) cites the following guidelines from Rav Shlomo Zalman Auerbach:
  We must distinguish between treatments that fulfill a person’s basic needs or are accepted as routine, and treatments that are not considered routine. For example, Halachah forbids withholding oxygen or nutrition from a patient who is suffering from cancer that has spread throughout the body and [therefore] is near death, even though the patient is experiencing great pain and is suffering terribly. If he is diabetic, one may not withhold insulin from him with the intention that he die sooner. One may [also] not withhold blood or antibiotics that are necessary for his care. One may not withhold these treatments even if the intention in doing so is not to hasten the patient’s death. On the other hand, we are not obligated to administer non-routine and painful treatments, which serve only to lengthen life and do not cure the fundamental problem. This applies especially if the patient objects to such treatment because of the suffering he would be forced to endure as a result.
  Dr. Abraham adds that if it is a hopeless situation, there is no obligation to revive a <i>gosseis</i> if doing so will merely serve to amplify his suffering. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 2:73:1) essentially agrees with these guidelines.
  Rav Shlomo Zalman (<i>Teshuvot Minchat Shlomo</i> 1:91:24) maintains that we withhold these extreme life-saving measures if so requested by the <i>gosseis</i>. He adds that although this is permissible, it is preferable to explain to the patient that Torah philosophy advocates living as long as possible even if one experiences pain, as is indicated by the Mishnah in the context of a <i>sotah</i>3<i class="footnote">The Torah states that a <i>sotah</i> (woman suspected of adultery, see Bemidbar 5:11-31) who is found guilty will die a hideous death. However, if she has “merit,” Hashem will grant her a few extra years of life, during which she will slowly deteriorate and experience difficult illness. This indicates that it is preferable to die a slow and painful death rather than die immediately, as the Mishnah teaches that the extra years of life involving great suffering result from merit.</i> (Sotah 3:4; also see Rambam <i>Hilchot Sotah</i> 3:20) and the Mishnah (Avot 4:22) that states, “One hour of <i>teshuvah </i>and good deeds in this world is better than all of the world to come.”4<i class="footnote">See, however, Ketubot 33b, Sotah 46b, Rashi’s comments to Shemot 15:5 s.v. <i>Kemo Even</i>, <i>Teshuvot Igrot Moshe</i> Y.D. 2:174:3, and Rav Hershel Schachter’s <i>B’ikvei Hatzon</i> 34 for situations in which it seems it is preferable to die immediately rather than suffer a prolonged, painful death.</i>
  As a proof to the permissibility of withholding treatment from a <i>gosseis</i>, Rav Moshe cites a passage in the Gemara (Ketubot 104a) that describes the end of Rabi Yehudah Hanasi’s life when he was near death and suffering greatly. His students persisted in <i>tefillah</i>, which kept him alive but did not cure his illness. Rabi Yehudah’s maidservant (described in the Gemara Rosh Hashanah 26b and Megillah 18a as a wise woman) threw a glass into the <i>beit midrash</i> to disrupt the <i>tefillah</i>, at which point Rabi Yehudah died. The Ran (Nedarim 40a s.v. <i>Ein Mevakeish</i>) approves of her actions and accordingly concludes that one may pray for the death of a gravely ill person who is suffering greatly and whom doctors are unable to heal.5<i class="footnote">One must exercise great caution before taking such a dramatic step, and a Rav must be consulted before engaging in such a <i>tefillah</i> (<i>Chikekei Leiv</i> 1 Y.D. 50). We should also note that Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 9:47) forbids praying for someone to die. He believes that the Ran does not constitute normative Halachah, as his idea is not presented by the Rambam, the <i>Tur</i>, or the Shulchan Aruch and its commentaries.</i> Indeed, Rav Feivel Cohen mentioned that many <i>gedolim</i>, including the <i>Chazon Ish</i>, would not pray to prolong the life of someone suffering enormously from an incurable disease. Rav Moshe writes that the aforementioned ruling of the Rama regarding the removal of impediments to death is based on this Gemara and comment of the Ran.
  Rav Zalman Nechemia Goldberg (<i>Halachah Urefuah</i> 2:169-180) and Rav Mordechai Willig (personal communication) agree that one may withhold certain treatments from a <i>gosseis</i> in accordance with the opinion of Rav Moshe and Rav Shlomo Zalman. The Steipler Rav (<i>Krayna D’igrata </i>1:190) expresses his inclination toward the approach of Rav Moshe and Rav Shlomo Zalman, but he declines to issue a ruling on this matter.
  We should note, however, that although Rav Moshe and Rav Shlomo Zalman agree that nutrition and oxygen never should be withheld from a patient,6<i class="footnote">Rav Mordechai Willig told me that he agrees with this approach; however, see Rav Hershel Schachter’s opinion, cited in <i>Tradition</i> 34:2:46.</i> providing nutrition in certain limited circumstances may actually harm the patient.7<i class="footnote">Dr. Beth Popp raised this point at the OU-sponsored symposium.</i> Thus, it is essential that a Rav consult the patient’s doctors and consider their input before rendering a decision.
  Who Makes the Decision?
  Rav Shlomo Zalman addresses a situation in which the patient is capable of making the decision. What should be done, however, if the patient is incapacitated and unable to communicate his will? Who decides his fate? Rav Hershel Schachter (at the OU-sponsored symposium), based on the opinion of Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 2:74:2), stated that in such circumstances, the decision should be made by the patient’s family members, who should assess what the patient would want.8<i class="footnote">See also <i>Teshuvot Melamed L’ho’il</i> 2:104.</i>
  Rav Schachter cautioned, though, that it is very difficult to determine what the desire of the patient would be. Indeed, Rav Zev Schostak (<i>Tradition</i> 34:2:50) writes, “Regrettably, families all too often project their own fears and guilt when making medical decisions on behalf of their loved one. They feel they can no longer bear the emotional burden of the visits, the financial drain of high-tech medical care on their assets (or potential estate).” In addition, there is great potential for dispute among family members in discerning the patient’s will. The only way to make a good decision about this matter and to avoid family fights (whose damage may last for years) is for the individual to designate, in a properly drafted document, a health care proxy who will make decisions for him if he is incapacitated, and to explain to the person designated what he would want should such a situation arise (Heaven forbid). Because of the difficulty and halachic complexities involved in making such decisions, a competent Rav must be consulted in conjunction with drafting these instructions and making the actual decisions. In addition, such instructions should be reviewed and updated every few years, as people’s attitudes about such matters are subject to change.
  We also should add that it is not always simple to obtain the accurate medical information necessary for making the awesome decision to withhold certain treatments from a <i>gosseis</i>. Many advise that one seek a second expert opinion before signing a “do not resuscitate” (DNR) order on a <i>gosseis</i>. One should not be intimidated by medical staff pressure not to seek a second opinion. Families who have signed a DNR order should be vigilant (and assertive, if necessary) in ensuring that their loved one receives proper care even after the DNR order has been signed.
  We should also note that while Rav Yosef Shalom Eliashiv (cited in <i>Nishmat Avraham</i> 4:153) agrees that one may withhold certain treatments from a <i>gosseis</i> if he is suffering greatly and makes such a request, he also rules that if the patient is unconscious, even if he is defined as brain dead,9<i class="footnote">Rav Eliashiv emphatically rejects brain death as a definition of death (his responsum on the matter appears in <i>Nishmat Avraham</i> 4:148-150). </i> “As long as it is not clear that he is suffering greatly, we are obligated to provide all medical treatment, including resuscitation, to extend his life.” However, Dr. Abraham S. Abraham (<i>ibid</i>.) cites Rav Shlomo Zalman Auerbach, who rules that “As long as the patient is in the end stage of his [terminal] illness, there is no obligation to undertake any action that will cause great pain, even if the patient is unconscious and is not suffering.” Similarly, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:174:3) writes that even if the patient is unconscious and the doctors state that he no longer is capable of experiencing pain, one should not believe them, since it is possible that they are incapable of making such a determination.
  Challenges to the Rulings of Rav Moshe and Rav Shlomo Zalman
  Some authorities disagree with Rav Moshe and Rav Shlomo Zalman’s ruling. These authorities believe that one must prolong life under all circumstances, (see <i>Teshuvot Tzitz Eliezer</i>10<i class="footnote">The <i>Tzitz Eliezer</i> makes this exception: “If it is recognized that the time for the departure of the soul has arrived.” Under such circumstances, he does not require the administration of all medical treatments. </i> 14:80 and Rav J. David Bleich’s <i>Judaism and Healing</i> pp. 134-145), forbidding caretakers to withhold any medical treatment from any patient. They argue that the Rama permits removing only a non-medical impediment, such as the woodchopper in the situation he addressed.
  Rav Feivel Cohen stated (in a lecture to the Council of Young Israel Rabbis) that he agrees with this approach, noting that Halachah requires us to violate Shabbat in order to save someone even if he is expected to die very shortly (Shulchan Aruch O.C. 329:4 and <i>Bei’ur Halachah ibid</i>. s.v. <i>Ela</i>). Certainly, then, such efforts to extend the life of a terminally ill patient are required when it is not Shabbat. The Shulchan Aruch, discussing a case of someone on whom a building collapsed and presumably is experiencing great pain, rules that we are required to extend his life. Rav Cohen derived from this ruling that we must act boldly to extend someone’s life even if that person is experiencing great pain and little “quality of life.”11<i class="footnote">See, however, <i>Tiferet Yisrael (Yoma </i>8:3 in <i>Boaz</i>), who explains that we remove the building debris from him because “One certainly reduces his pain even if he will now experience pain longer. Nonetheless, it is better for him to die slowly than to have his life shortened and die a painful death under the weight of the stones.” </i> He argued, paradoxically, that even though the Ran permits praying for the death of one who is suffering greatly from an incurable illness, Halachah obligates one to undertake all measures to help save such an individual.
  Rav Cohen noted that even Rav Moshe and Rav Shlomo Zalman would agree that in many circumstances, it is forbidden for a patient to sign a DNR order. Indeed, one must exercise great care, and consult his Rav before signing a DNR order, as some hospitals and doctors encourage (and sometimes even push strongly for) the signing of such orders when there is absolutely no halachic justification for doing so. Rav Cohen also stated that Rav Moshe’s ruling applies only if the patient is suffering to the extent that he would prefer to die rather than experience such pain.
  In any case, experience teaches, as we mentioned above, that one must be absolutely certain that he has an expert medical evaluation before signing a DNR order, which might necessitate seeking a second expert opinion. Rav Cohen noted that Halachah obligates family members of gravely ill patients to ensure that health care providers are following hospital protocols when treating their loved ones. Unfortunately, some providers tend to neglect the needs of gravely ill patients who are close to death.
  Accordingly, it is vital that one complete a health care proxy in which he clearly chooses and empowers a Rav to render an appropriate decision should the situation (God forbid) arise. Otherwise, it will be difficult to assert his rights to hospital administrators and health insurance providers.12<i class="footnote">Insurance providers might not cover end-of-life care that they believe to be unnecessary. If the patient left directions to provide halachically appropriate medical care until the end, however, the insurance providers are more likely to cover the costs.</i> Moreover, a statement indicating one’s attitude toward receiving intensive end-of-life care can sometimes constitute an important component of a halachic authority’s decision in this area.13<i class="footnote">As noted, Rav Shlomo Zalman Auerbach and Rav Moshe Feinstein leave some of the decision-making power in the patient’s hands.</i>
  We should note, though, that a living will must be formulated with great care, as an improperly drafted living will might be used to deny necessary medical treatment.
  Narcotics and Other Pain Relievers for Patients near Death
  Narcotics or other pain relievers are commonly administered to relieve pain and suffering. This is especially true when doctors have given up hope of curing a patient who is near death. The question arises whether Halachah permits the administration of pain relief in circumstances in which the medication may hasten death.
  Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 13:87) permits the administration of pain medication in such circumstances. He presents two reasons for this ruling. First, relieving pain is a legitimate medical objective,14<i class="footnote">For a discussion of this issue, see Rav J. David Bleich’s essay in <i>Tradition</i> (36:1:89-114). </i> and Halachah permits caregivers to take risks in the attempt to heal a patient (see Ramban, <i>Torat Ha’adam</i> 2:43 in Rav Chavel’s <i>Kol Kitvei Haramban</i>). Hence, one may risk the life of the patient in an attempt to eliminate his pain. Second, the serious pain endured by the patient may itself cause harm or even death if left untreated. Thus, in some circumstances, pain relief may actually extend the life of the patient.
  Rav Shlomo Zalman Auerbach (cited in <i>Nishmat Avraham</i> 2:246; also see <i>Teshuvot Igrot Moshe</i> C.M. 2:73:1) essentially agrees with this ruling, except for one application: administering morphine when a particular injection entails the risk of depressing the patient’s breathing. He permits administering morphine only when each shot will not by itself endanger the patient’s life. Rav Auerbach and Rav Waldenberg also insist that the morphine be administered solely for the purpose of pain relief, not as a backhanded form of euthanasia. The risk in many situations is minimal, so pain relief likely is permissible; however, the benefits and risks can vary considerably depending on the patient’s condition and the procedures to be followed. Because of the complexities involved in implementing these guidelines, it is vitally important to designate (in the health care proxy) a halachic authority who will consult with the attending physician and help decide which course of action should be followed in the patient’s particular circumstances.
  Practical Considerations
  One must account for a number of practical considerations when planning a living will to ensure that his intent to follow Halachah is respected. Separate documents should be signed for the living will and the health care proxy. The health care proxy alone, while effective to a certain extent, does not allow the patient to express whether he wishes to have extraordinary measures taken to prolong even minimal life in case of great suffering if he becomes a <i>gosseis </i>(Heaven forfend). It is also worth considering the option of merely filling out a health care proxy and subsequently writing an informal, non-binding document that is addressed to the proxy and to one’s Rav in which he expresses his feelings regarding the extension of life in case of enormous suffering and no hope for cure. Again, we must stress that one must be exceedingly careful to ensure that a living will does not prevent one from receiving proper medical care. In addition, as Rav Cohen noted, many of the standard forms of a living will are entirely incompatible with Halachah even according to Rav Moshe Feinstein and Rav Shlomo Zalman Auerbach’s standards outlined above. Thus, if one chooses to execute a living will, he must use utmost caution and receive competent rabbinic and legal guidance.
  Each document should specify that health care decisions are to be applied in a manner consistent with Orthodox Jewish law (Halachah). One should clarify that a particular Rav, either selected by his agent or appointed by an organization, is authorized to resolve any halachic issues.
  Attorney Martin Shenkman advises that it is critical to anticipate practical problems: if the Rav one names cannot be reached, who will address halachic issues? Several alternates should be listed in the document with several telephone numbers for each (home, office, and cellular). One should sign several original documents and distribute them to his doctor, his Rav, and his agent. He also should endeavor, although it is difficult, to discuss these issues in advance with family, the people named as agents, and his Rav. These discussions will enable those involved to better implement his wishes within the guidelines of Halachah. It will help them better anticipate how different circumstances may affect the person. One must be sure, though, that his oral instructions conform to his written decisions. His oral instructions should be clear and simple, leaving no room for ambiguity. Most importantly, these discussions, however difficult, will make the decision-making process less traumatic for the family if (God forbid) such a situation arises. One might also consider carrying a card identifying one’s health care proxy at all times. This helps assure that medical personnel will be able to contact the health care proxy in the event of an emergency.
  Organ Donation
  A proper living will specifies which organs, if any, one wishes to donate. Although the particulars are beyond the scope of this discussion, there are many areas of debate among halachic authorities regarding organ donation, including, first and foremost, whether Halachah defines brain death as genuine death. It is possible to contemplate the permissibility of donating a heart, lung, or liver15<i class="footnote">Kidneys, too, might be included in this list.</i> only if brain death is considered halachic death, because currently, doctors can harvest these organs only from donors whose hearts are still functioning.16<i class="footnote">The Rabbinical Council of America’s Halachah Committee has devoted nearly two years to studying this issue and (as of this writing) is expected in the near future to issue rulings regarding the halachic propriety of organ transplants. These rulings are expected to include thorough discussions of the issues and extensive citations of classic and contemporary discussions of this question. It is anticipated that the rulings will become available at www.rabbis.org.</i> In order to avoid family fights (with the potential for great acrimony), one should designate a Rav who will resolve such issues. Otherwise, family members are likely to become embroiled in a fight over which Rav should be consulted.
  Conclusion
  Rav Yisrael Meir Lau (in a responsum printed in <i>Nishmat Avraham</i> 4:155-156) writes that it must be strongly emphasized that in regard to the treatment of a gosseis, cases are not identical, and a halachic ruling in regard to one patient cannot be regarded as a precedent regarding another patient “even if the cases appear as identical as two drops of water.” Thus, we must emphasize in the strongest of terms that a competent Rav must be consulted regarding each and every situation of a <i>gosseis</i>. It is essential for everyone to execute a properly formulated health care proxy that facilitates such rabbinic consultation. One also should carefully consider executing a properly formulated and halachically valid living will. With proper planning, it is possible to ensure that even in the worst of situations, both Halachah and the will of the patient will be executed properly.
  
  Biographical Notes
  
  