Torah Musings Fri, 25 Sep 2015 12:23:23 +0000 en-US hourly 1 Daily Reyd Fri, 25 Sep 2015 12:22:56 +0000
The Etrog, by S.Y. Agnon: Newly Translated Fiction for Sukkot
▪ Attempting to distinguish between Centrist and Modern Orthodoxy. I only disagree with #1 and his point about the development of halakhah, which I think are stated so vaguely that even a Conservative rabbi would agree: Condemning Unfairly: A Reply to Avrohom Gordimer
US Jewish studies professors struggling to find work
Almost Perfect: What a Blown Baseball Call Can Teach Us About Imperfection
Rabbi’s Diary: Chocolate and Eagles and Lions, Oh My!
▪ Will a Jewish boycott make even a dent in the Chinese economy?: Why Jews should not visit China, regardless of what Israel does
▪ I bought from Israel: As Israel’s groves lie fallow, Morocco captures etrog market
▪ A tzaddik from my neighborhood: ‘You’ve Got To Live A Little’: Remembering Rabbi Sholom Morrow
R A Kahn: The Commandment of Hakhel
The Power of Prayer—and Chemotherapy

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Heter Meah Rabbanim for an Insane Wife Fri, 25 Sep 2015 01:30:50 +0000 divorce-law11 Tishrei: Heter Meah Rabbanim for an Insane Wife

by R. Gidon Rothstein

On the eleventh of Tishrei 5610 (1849), R. Yosef Shaul Nathanson in Shut Shoel ve-Nishal Mahadura Kama 1;113 (R. Nathanson was a rabbi in Galicia and Ukraine in the mid-late 1800s) saw the ruling of R. Zvi Hirsch Chajes freeing a man to remarry without a heter meah rabbanim (R. Chajes is more commonly known as Maharatz Chayes, whom Wikipedia tells me is the only commentator in the back of the standard printings of the Gemara who had a PhD).

While, halachically, a man can have two wives, it has long been the practice—for reasons this responsum will discuss—that he cannot. In certain circumstances, if 100 rabbis from at least three countries sign a release, he can take another wife. This obviously creates tension today among those who see it as imbalanced, since a woman has no such option. That’s a discussion for another time, another responsum.

The case here was a man whose wife had become deranged, walking naked and barefoot in the streets, unconcerned with wounds she developed, engaging in promiscuity, and was unable to conduct a coherent conversation. For the past six years, she had been institutionalized.

Her husband, a poor publishing house worker, had small children with a medical need for hot meals, but no one to provide them. To let him marry someone who, among other things, could serve a motherly role for these children, R. Chayes found reason to release him even without a heter meah rabbanim, the document of release by 100 rabbis, which would take time, money, and effort to secure.

Herem Rabbenu Gershom

One reason R. Chayes gave was that the prohibition against marrying two women is attributed to Rabbenu Gershom, the leader of German Jewry two generations before Rashi. Darkei Moshe had said that that rule only applied until the end of the fifth millennium (1240), after which it was a custom, not a rule. R. Chayes felt this man’s circumstances permitted ignoring the custom.

R. Nathanson disagrees, because Ran took for granted that the herem still applies, though he lived a full hundred years after the end of the fifth millennium. While it’s true that R. Yosef Karo believed Ran didn’t know of Rashba’s view that the original ban had a time limit, and would have ruled differently had he known, it’s still true that R. Karo and all others agreed that the leaders of Ashkenazic communities decided to continue those rules beyond that time.

If so, it’s now a rule now promulgated by those Torah scholars, who certainly had the authority to declare the rule still in force.

At the end of the responsum, R. Nathanson also mentions the view of Maharshal, who found no backing in the reports that the herem was instituted for a limited time. Were that true, he wrote, the herem would still have to have been nullified by a court to cease to apply.

Fault on the Woman’s Part and Coercing Divorce

It is true that Rema had included the woman’s becoming insane as an occasion when the herem did not need to be obeyed, but Shvut Ya’akov disagreed, insisting that that was only where the woman had acted wrongly in some way. Here, she had hidden previous mental health episodes and institutionalizations, which Noda BiYehuda Mahadura Kama Even HaEzer 1 held was enough malfeasance to allow a husband to coerce a get on her, he did not see it as enough to allow marrying a second wife. (Coercing a get does not help with an insane woman, since the document is only effective with someone of sound mind).

In this case, were she to recover, we’d have another problem because the man would have two actual wives—he couldn’t divorce the second one against her will, because Herem Rabbenu Gershom also prohibited that, and she’d done nothing wrong, nor could he divorce the first one against her will, since she’s no longer insane. So that while Rema allowed divorcing a woman against her will in some cases, R. Nathanson does not see the relevance to the case here.

Prohibiting What the Torah Explicitly Permits

Aside from the question of which of the two is better to violate, R. Nathanson notes that Taz in several places held that rabbis cannot prohibit that which the Torah explicitly permitted. If so, how could Rabbenu Gershom prohibit this? R. Nathanson notes that the Gemara had already said that the Torah only allowed multiple wives for a man with the financial wherewithal to support them; if so, the herem might have been saying that today, in exile, men cannot be confident they will be able to provide financial support.

Or, possibly, it’s a function of another Gemara, which says that the only reason we can marry—a happy event—after the Destruction of the Beit HaMikdash [a tragedy which is supposed to always be in our thoughts] is the obligation to have children. That does not permit two wives.

Noda BiYehuda had held that if we’d allow coercing a get in some situation, we’d certainly allow taking a second wife (the latter being the less serious of the legislatons of Rabbbenu Gershom), and Maharatz Chayes had relied on that. R. Nathanson prefers the view of Maharam Padua (an ancestor of his), Responsum 13, that having two wives is the more serious issue.

Doubt About a Herem

R. Chayes had also written that we can rule leniently in any doubt about a herem, because it’s divrei kabbalah (sourced in Scripture, but not the Torah, and therefore not having the full force of Biblical law). This, too, was based on a view of Noda BiYehuda, about which R. Nathanson again expresses surprise, and notes that he had previously discussed. Shach and other halachic decisors ruled that doubts about a herem had to be taken stringently.

R. Nathanson holds, also, that a legislation promulgated with a ban of excommunication (a herem) attached, shows that they meant this rule to carry extra force, including that it applied even in cases of doubt.

Adultery’s Impact

R. Chayes also ruled that her infidelity meant she could never return to this husband. He based that on Rambam’s view that a man who has an affair with a minor is not inherently considered as having coerced her [that would be a sensitive topic today, but it’s not clear we rule that way]. If we apply that to a deranged woman as well, this woman cannot stay with her husband because we see her adulterous activity as consensual.

It’s not clear we accept Rambam’s ruling (a majority of authorities, it seems, disagree). Even if we do, his reasoning was that the minor understands that she’s betraying her husband, regardless of her failure to understand the seriousness of the prohibition. That’s not true of a deranged woman. More, R. Nathanson writes, the flaws in intent are different: a minor doesn’t have full intent, where a deranged woman has problematic (his word is mixed up) intent. Her infidelity must be thought of as against her will, meaning the husband is not required to divorce her.

Leaving a Get for Her

With all that, a heter meah rabbanim would clearly allow the husband to remarry. Yet R. Chayes made one more recommendation that troubles R. Nathanson. The general practice, in cases of heter meah rabbanim, is that the husband leaves a get with the court, for the wife to pick up when she is ready. R. Chayes, however, had written that this man should be מזכה a get, which sounds like giving it to someone else on her behalf, as if it already takes effect. Yet he also wrote that, should she recover her health, the husband should write her a new get. Finally, he required the husband to swear, as Noda BiYehuda prescribed for all cases of heter meah rabbanim, that should he marry another woman, he would obey any beit din’s order to give this first wife a get, whenever a beit din would prescribe it.

We do give a get on the woman’s behalf, with the intent that it apply immediately, for a woman who has left observance. In that case, it’s clearly to her benefit, since she’s unconcerned with her marital vows, and we can assume will have adulterous affairs. A divorce does not benefit a deranged woman, since it frees her husband of the responsibility to support her.

It’s not clear, either, that a messenger can do that which the original person cannot. If her mental state means she can’t accept a get, it’s not clear a messenger can accept it on her behalf, even if it’s a clear benefit. That’s a topic many authorities had discussed, including R. Nathanson, at length, in another responsum.

What R. Chayes probably meant, and is the way the concept of heter meah rabbanim was formulated, was that the husband would deposit a get, which would be held for her until such time as she chose to come for it. Until then, she would still be this man’s wife, and he would owe her financial support.

Even that isn’t obviously meaningful, R. Nathanson says, since writing a get when it cannot be given (in this case, because she’s too deranged to accept it) raises questions of validity. A get has to be a sefer keritut, a document that can end a marital relationship at the time of its writing. Earlier authorities had split on the question of whether a heter meah rabbanim in a case of the woman’s derangement required the usual depositing of a get on her behalf, and R. Nathanson leaves the question open.

Sum total: the man (unlike women in this situation, and I don’t mean to minimize this issue; it’s just not the issue of this responsum) can marry, but R. Nathanson thinks he needs a heter meah rabbanim. And he must continue to support the deranged woman in the institution, who will remain his wife until she recovers.

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Understanding The Hallel Fri, 25 Sep 2015 00:00:29 +0000 Halakhic Positions of Rav Joseph B. Soloveitchik

by R. Aharon Ziegler

According to Rav Soloveitchik, after analyzing the various psalms that make up the Hallel, we see that the first two [Psalms 113, 114] are purely Shevach [praise] and Hodaya [thanksgiving] to HaShem. They consist exclusively of Shevach; without a trace of any petition or request and no mention is made of imploring G-d. We do mention in detail about past events which occurred- and many significant events that are connected to our destiny. We describe how a people oppressed, in bondage and in servitude, suddenly arise to a high level of freedom, giving birth to a new nation, -a chosen nation a holy nation, a nation in whose midst HaShem resides. But beginning with the third psalm [115], Lo Lanu through Ahavti,[116], Min HaMeitzar, and Ana HaShem [[118], the structure and approach takes a different turn and we see the petition themes are interwoven into the text of praise. No longer do we find exclusive praise in these sections.

True, we find an outcry of joy, the expressions of a happy person. But at the very moment we achieve the height of happiness, we feel vulnerable, insecure and unhappy. We suddenly realize how much help we still need from HaKadosh-Baruch-Hu. We cry out “HaShem, please save us”. It is not only a shout of joy that we express in Hallel, but also an outcry of pain, for there is an inner contradiction. We say “This is the day that HaShem has made. Let us rejoice and be glad in it”, while in the same breadth we say, “HaShem, please save us”.

That is so true in the real world as well. Even when HaShem does save us we realize how close we were from being destroyed. Even when the Yeshu’a does come- we worry about tomorrow and what it could possibly bring. We are always vulnerable and in a matzav of danger. This is what Hallel expresses and this is what it means to us.

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Books Received Thu, 24 Sep 2015 13:43:34 +0000

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Letter on IBD Resignation Tue, 22 Sep 2015 11:47:14 +0000 letter

This letter was written by Rav Menachem Penner, Dean of RIETS. I have confirmed its authenticity. -Gil

In just a day, the shaliach tzibbur will say, at the end of “Hineni” – “ha-emet ve-hashalom ehavu”. It is in the pursuit of both emet and shalom that I write before Yom HaKippurim.

The recent dispute over the status of the International Bet Din (IBD) for Agunot involves serious and complicated issues. This matter has significant implications for the community at large, but, most of all, for dozens of women to whom all parties are equally sympathetic and about whom they are all equally concerned.

There is much public confusion about the nature of the challenges presented in cases of iggun and the issues at hand with the IBD in particular. All parties in the current debate understand that what separates the IBD from its detractors has nothing to do with differing levels of concern for women left chained by their husbands.  

One of the many areas of misunderstanding with the IBD are the circumstances surrounding the resignation of Rabbi Yosef Blau, Mashgiach Ruchani of Yeshiva University, from the Beth Din. A recently published article in a local paper has, unfortunately, added further misinformation into the mix. While I commend Rabbi Blau for refusing speak to the media, some facts ought to be clarified.

Rabbi Blau stepped down from the court after being met with an unexpected level of disagreement from his colleagues at YU. Many at Yeshiva, including some figures who have worked for decades to ameliorate the plight of agunot, expressed significant halakhic reservations about the Beth Din. Furthermore, as Rabbi Blau is so closely affiliated with Yeshiva, concern arose that Rabbi Blau’s inclusion in the Beth Din signaled, in the absence of public statements to the contrary, institutional support for the new Beth Din. Rabbi Blau was not ready to allow his involvement in the Beth Din to be a source of friction with his colleagues and stepped down willingly – for the sake of shalom. He was neither threatened nor bullied and is happy to corroborate that fact. 

Rabbi Blau maintains his personal opinion about the validity of the Beth Din and its efforts. There have been no claims to the contrary. Rabbi Hershel Schachter, a leading posek and Rosh Yeshiva at YU, in a letter to fellow rabbanim expressing his concerns with the Beth Din mentions that “one of the members of the court” has resigned (translated from the Hebrew), not wanting to mention Rabbi Blau – or any of the Beth Din’s members by name. Neither Rabbi Schachter nor Yeshiva believes that Rabbi Blau has repudiated his opinion about the court’s validity.

Finally, rumors have arisen that, in the course of this important debate, various trusts have been violated. These rumors are also untrue. Rabbi Blau and Rabbi Schachter made no agreements about future steps. The Yeshiva assured Rabbi Blau that it would not issue a public statement that might lead to even further friction – and it, in fact, did not do so. A month later, Rabbi Schachter wrote a letter expressing his significant personal concerns, as a recognized posek, with the Beth Din. While some have expressed surprise about the passion of Rabbi Schachter’s dissent, at no time did Rabbi Schachter commit – or even imply – that if the Beth Din continued to function after Rabbi Blau’s resignation that he would withhold his personal concerns with the Beth Din or its rulings.

Unfortunately, fact is often less exciting than supposition. Both Rabbis Schachter and Blau, shlit”a, will confirm that the information above is the truth. It is my hope that readers will take the time to truly understand the nature of this disagreement and the seriousness of the issues at hand while rejecting rumors about the integrity of the parties.

Gmar chatimah tovah,

Menachem Penner

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Daily Reyd Tue, 22 Sep 2015 11:41:48 +0000
▪ Public profanity: R Hoffman: Avoiding Chillul Hashem
An Unexpected Partner Helps Preserve a Manhattan Synagogue
I’m a rabbi. Here’s why the pope inspires me
The world’s most beautiful synagogues
▪ This is precisely the kind of tit-for-tat religious compromise against which Rav Soloveitchik warned: Why Haven’t Jews Responded to Vatican II After 50 Years?
Yom Kippur in a Buddhist Monastery

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A Review of International Beit Din Case 105 Tue, 22 Sep 2015 01:30:53 +0000 reviewby R. Yaacov Sasson

After publishing an article two weeks ago about the latest Agunah controversy, I would normally let the matter drop. However, with the approval of my editorial committee, I agreed to publish this additional essay because of an anomaly of punctuation. Responsa rarely contain punctuation beyond periods and–occasionally–commas. I recently saw a surprising appearance of punctuation in a responsum of Rav Azriel Hildesheimer (Even Ha-Ezer 31). A student of Rav Hildesheimer, Rabbi Moshe Jacobson (I don’t think this was the Reform leader with the same name), wished to annul a marriage in which the husband had converted to Christianity before the wedding without informing the bride. The man underwent a Jewish wedding, fooling the bride to believe that he considered himself a Jew. The student wrote a responsum on the subject and sent it to Rav Hildesheimer, after speaking with him about it. There seems to be good reason to annul this marriage, as R. Jacobson explains in his responsum. Rav Hildesheimer responded emphatically, “Chalilah! to permit without a get” in that case. He repeated the “Chalilah!” again, using the exclamation point both times. These are not simple matters. Even though the student stated in his responsum that “I will certainly not do anything without the approval of gedolei ha-zeman (leading rabbis of the time),” Rav Hildesheimer still felt a need to respond emphatically. The strongly worded essay that follows was not written by Rav Hildesheimer but rather defends a statement by leading dayanim in the US. -Gil

As the controversy surrounding the International Beit Din (“IBD”) continues to swirl, there is some confusion among the general public regarding the nature of the objections to the IBD. While Batei Din have disagreed from time immemorial, this particular disagreement is qualitatively different, not just a disagreement about conclusions but a disagreement about competence. Leading dayanim have declared the IBD incompetent to decide aguna cases, but their reasons are still unknown to the general public.

Rav Hershel Schachter published a letter encouraging his students and colleagues to not rely on IBD rulings, to which other dayanim across the country added their agreement.1 Specifically, Rav Schachter challenged a particular ruling relying on a well-known opinion of the Ritva. This is a reference to the IBD psak (ruling) on Case 105 (from here on: Psak 105), available in both English and Hebrew on the IBD website.2 The IBD website tells us that “This psak is representative of several decisions handed down by the International Beit Din.” Additionally, Rabbis Simcha Krauss and Yehuda Warburg of the IBD have written with regard to Psak 105 that “This psak din as well as other IBD decisions are available for public scrutiny on our website.”3 As such, it seems appropriate to subject Psak 105 to the examination which Rabbis Krauss and Warburg have invited. I strongly encourage any reader not to take my word, but to read the English and Hebrew versions of Psak 105 in conjunction with this review. This review will assume that the reader is generally familiar with the contents of Psak 105, including the background and final decision.

First, a disclaimer: I am under no delusion of being a halakhic decisor. I am certainly not qualified to issue a psak in the complex areas of Even Ha-ezer and heter agunot. As such, this review will not engage in detailed analysis of the various halakhic issues involved. The purpose of this review is to identify the crucial halakhic issues that a complete and coherent psak crafted by a qualified and competent Beit Din would necessarily address.

I Fundamental Issues

1 – Designation of Witnesses (Yichud Eidim): Generally speaking, if a group of witnesses contains one invalid witness then the entire testimony is invalid. Any wedding includes family members of the bride and groom, who are invalid to testify about their relatives. How can a wedding ever have valid witnesses? Most authorities rule that only someone who intends to testify is considered a witness and, if invalid, can render the entire group invalid. The Ritva offers a minority opinion that intent is irrelevant. Rather, valid witnesses must be designated (yichud eidim) to exclude those relatives and everyone else who is invalid. Absent such a designation of valid witnesses, Ritva posits that the kiddushin (wedding ceremony) is invalid.

IBD’s Psak 105 heavily relies on this “position of Ritva in the name of his teacher Ra’ah which is cited authoritatively by Tzit (sic) Eliezer” to invalidate the kiddushin. The Psak similarly places heavy reliance on three responsa4 of Rav Tzion Boyaron, a dayan on the Beit Din ha-Gadol of Yerushalayim, who “has ruled on numerous occasions regarding the propriety of acts of kiddushin, in accordance with Ritva’s view.” Rav Boyaron’s three responsa themselves rely heavily on the aforementioned teshuva of Rav Waldenberg in Tzitz Eliezer (8:37).

However, there is a critical distinction between the cases in Tzitz Eliezer and Rav Boyaron’s responsa on the one hand, versus the case in Psak 105. Namely, in all of the cases upon which Psak 105 relies, there was yichud eidim of eidim psulim (invalid witnesses were specifically designated to serve as the witnesses, which excludes the possibility of other witnesses.) It is for this reason that all the psakim cited employ Ritva’s position as an additional consideration (senif), not as the main basis for leniency. (Tzitz Eliezer uses the phrase “al ha-amur yesh lizkor”, loosely translated as “additionally we ought to remember” in reference to Ritva’s position. It is certainly a mere senif, almost an afterthought, and not the main basis for his ruling.)

In contrast, we are told explicitly that in the case of Psak 105, there was no yichud eidim whatsoever. This invites the obvious question of whether Ritva’s position is sufficient to, in practice, invalidate potential witnesses under the chupah, in absence of yichud eidim psulim. It is noteworthy that within a lengthy discussion of yichud eidim in Shaarei Tzion Even Ha-ezer 2:10, Rav Boyaron suggests that he would not be concerned with the valid witnesses even in absence of yichud eidim psulim. However, as noted, the case in question was in fact one of yichud eidim psulim. It would therefore remain a significant subject for discussion whether such a statement within a teshuva would constitute sufficient precedent for other dayanim to rely on, given that Rav Boyaron himself did not rely on this in practice, as well as the highly controversial nature of such a ruling, the gravity of the issue under discussion, and the emphasis that Psak 105 places on following precedent. Furthermore, it is highly questionable whether Rav Waldenberg would have himself relied on this in practice, in absence of yichud eidim psulim. Again, it is not my purpose to present a detailed analysis or a resolution to this question. But that Psak 105 fails to raise this crucial distinction or address this issue at all is absolutely stunning.

2 – Other Witnesses: Psak 105 completely ignores the possibility that onlookers other than those standing under the chupah could serve as valid witnesses. In contrast, both Rav Waldenberg and Rav Boyaron deal with this issue at length (and their analyses rely heavily on the yichud eidim to exclude the possibility of other observers serving as witnesses.) That Psak 105 does not entertain the possibility of other potential witnesses, particularly in light of the fact that there was no yichud eidim, is astonishing.

3 – The 5 Other Reasons: Rabbis Krauss and Warburg have written elsewhere, “However, in careful reading of the entire psak, it becomes clear that the IBD decision also offered five other reasons (in addition to Ritva – YS) in support of its leniency, including the husband’s admission that he is not Jewish.”5 This appears to be a misguided attempt to employ the technique of compiling additional reasons for leniency, senifim and tzdadim lekula, a technique typically employed by poskim to bolster their positions. In order to understand the issue here, we ought to enumerate the 5 other reasons. From the “Decision” section, it appears that the 5 reasons are as follows. 1- We are not concerned with kiddushin performed in the presence of rabbinically invalid witnesses (referring to some of the relatives under the chupah.) 2- Those related by marriage may be invalid witnesses on a biblical level. 3- Shulchan Arukh rules that kiddushin in the presence of one witness is invalid. 4- Rema rules that in the case of an aguna, kiddushin in the presence of one witness is invalid. 5- The husband claims that he is not Jewish.

Additional senifim for leniency, as typically used in teshuva literature, each stand independently as a reason to be lenient. In other words, even if previously stated reasons are incorrect, each senif adds an independent argument that is not predicated on the rejected reasons. The IBD’s 5 other reasons do not meet this criterion. For example, reasons 3 and 4 which relate to kiddushin in the presence of one witness, assume the correctness of Reason 1 and/or Reason 2. In order for the situation to be considered one of “kiddushin in the presence of one witness”, we must necessarily assume that the relatives watching under the chupah are invalid as potential witnesses. By the same token, Reasons 1 and 2 are insufficient to invalidate the kiddushin on their own; they require us to assume Reasons 3 or 4 as well. The first 4 reasons are inter-related and so dependent on each other that by no means can they be considered 4 independent reasons upon which to base a lenient ruling. That Rabbis Krauss and Warburg could claim that there are 5 additional reasons for leniency is, at the very least, misleading, and at worst, betrays a lack of understanding of the halakhic process typically employed in teshuva literature with respect to senifim.

4 – Even when viewed collectively, Reasons 1 through 4 do not constitute sufficient grounds to invalidate the kiddushin. Reasons 1 through 4 require the additional assumption that all potential witnesses in the audience were invalid (which is ignored entirely, see number 2 above), as well as the assumption that the unidentified adult male Jew under the chupah was not a valid witness. The entire discussion of the validity of one witness revolves around the possibility that the officiating rabbi (mesader kiddushin) himself might be the lone witness. To assume that this case was one of kiddushin in the presence of one witness, and to invalidate the unidentified adult male, IBD must either assume the Ritva’s position (in which case, again, these are not additional reasons for leniency because they are themselves predicated on Ritva’s position), or IBD must assume that the mystery adult male under the chupah was not Torah observant. The former appears to be IBD’s position, as the “Discussion” section specifies Ritva’s position as the basis for invalidating the adult male. Thus, these additional reasons for leniency are not additional reasons at all, as they are themselves predicated on Ritva’s position. Simply put, this betrays a fundamental ignorance of how senifim are to function.

An overly charitable reader might claim that IBD assumes the latter possibility, that the adult male is invalidated because he is not Torah observant (although this appears not to be the case from the “Discussion” section, as noted.) It would, however, defy reason to suggest that such a significant portion of this psak is based on an assumption that is not only unsubstantiated, but left entirely unstated.

5 – The final reason for leniency, the husband’s claim that he is not Jewish, at first glance appears to be a strong reason, and is in fact independent of the other reasons. However, one then wonders why this was not the main basis for the lenient ruling, rather than the reliance on Ritva’s position. If this claim could be substantiated, it presumably ought to be the main basis for the ruling. If it is unsubstantiated, then it ought not to be included at all, even as a senif. Unfortunately, we are not told whether the IBD found any basis for this claim, or even whether they attempted to investigate this claim at all. Does he have family in the Jewish community? Did he have a bar mitzvah? Did his parents have a Jewish wedding? Did the officiating rabbi at the wedding under discussion conduct any investigation of the Jewish status of the bride and groom? These questions and their answers are not mentioned in Psak 105. Nor is there any halakhic analysis presented regarding the ne’emanut of the husband’s claim, or whether such a claim might run counter to an established chazaka. One might get the impression that the IBD did not bother investigating, because they would anyway nullify the kiddushin on the basis of the Ritva, and could throw this in as a senif. This could be the most important piece of information that could free this aguna. That there is no further elaboration on this issue, and that the IBD sufficed with a lone sentence regarding the husband’s status, is nothing short of stunning.

6 – The final paragraph of the “Discussion” section is incoherent. We are told regarding the potential male witness under the chupah that “Even if he was Torah-observant, in accordance with Ritva and others his testimony is invalid. Nonetheless, the mesader kiddushin may serve as one witness and in pursuance to Rema’s view, we must be concerned that one can consummate kiddushin with the presence of one witness.” How are we to understand that the other male under the chupah is invalid due to Ritva’s position (if one witness is invalid, regardless of intent, then all the witnesses are invalid), but nonetheless the mesader kiddushin can serve as one witness? In truth, the entirety of Psak 105 suffers from a disjointed and garbled train of thought. Any reader who possesses basic familiarity with teshuva literature will immediately recognize the pronounced absence of clarity that characterizes Psak 105.

7 – It is worthwhile to note that Rav Waldenberg and Rav Boyaron, upon whom the IBD explicitly place great reliance, both stipulated that their teshuvot of heter aguna require the approval of other rabbis of great stature. Of the three teshuvot of Rav Boyaron upon which the IBD relies, only the latter two deal with heter aguna. (The first deals with a case where the woman did in fact receive a get from a first husband, and the issue under discussion was whether she would be permissible to a Kohen. This is certainly a weighty issue, but not of the gravity of allowing a woman to marry without a get.) In one of the teshuvot that deals with heter aguna, Rav Boyaron stipulates that his teshuva requires the approval of the “Gadol Ha-dor Rav Ovadya.” He subsequently received the approval of both Rav Ovadya Yosef and the then Rishon Le-tzion Rav Shlomo Amar, and their approvals are printed in Rav Boyaron’s teshuva. In the last teshuva, he stipulates that his teshuva requires the approval of three “Morei Horaa”, as well as that of the Rishon Le-tzion, and that he would prefer to have Rav Ovadya Yosef’s approval as well. Similarly, in the teshuva of Rav Waldenberg upon which the IBD places so much reliance, Rav Waldenberg stipulates that his heter requires the approval of two other “Gedolei Horaa.”

We must bear in mind that it is a great mitzva to free an aguna. When addressing the tragic case of an aguna, rabbis traditionally conduct a thorough search looking for potential reasons to rule leniently. However, they must do so within the halakhic process; otherwise, they might be permitting a married woman to take a second husband. The necessity to maintain this delicate balance has led traditional rabbis to seek approval from leading colleagues before issuing a final ruling.

Given the IBD’s great reliance on the aforementioned teshuvot, it is surprising, to say the least, that the IBD makes no such stipulations in Psak 105. One of the IBD dayanim, Rabbi Warburg, has written an article elsewhere that seems to say that the IBD feels it to be their responsibility to annul marriages even without the approval of great halakhic authorities.6 It should go without saying, though, that such responsibility falls only on those who are capable of shouldering it. Even dayanim on the highest court in Israel maintained the humility to submit their psakim to their colleagues and superiors for approval. The IBD’s independence is not only bold, but contrary to the precedents set by the dayanim that they claim to follow.

II Technical Errors

Psak 105 is riddled with errors in spelling, punctuation, transliteration and basic Talmudic Aramaic, as listed in the Appendix to this review. Even well-crafted and professionally edited books contain typos. However, we find in this ruling an abundance of basic mistakes. Lest any reader conclude that I engaged in some sort of treasure hunt in search of these errors, let me assure you that I didn’t need to look very hard. Both the Hebrew and English versions of Psak 105 are each less than three pages in length. To err is human, but each version of Psak 105 contains such a high concentration of errors that it is jarring to read them. An attuned reader cannot even read through the first two lines of either version without encountering a blatant error.

Read the psak yourself, and scan the Appendix to this review. The carelessness and sloppiness which characterize Psak 105 reflect an overly casual and decidedly non-serious and unprofessional attitude toward the weighty issue of heter agunot. One wonders if any of the dayanim would take such a lackadaisical attitude toward publishing a book, a doctoral dissertation, a college term paper, or even a high school term paper. It is disturbing, to say the least, that the IBD dayanim would treat a psak of heter aguna with less seriousness and attention than a high school term paper would deserve. Such a significant collection of errors bespeaks a lack of respect for the readers, a lack of respect for the complex issue of heter agunot, and indeed, a lack of respect for the aguna herself to whom this psak relates. One cannot help but wonder if any of the dayanim bothered to proofread, or even read these texts before they were placed on the IBD website as a representative example of their work. Even if one dayan alone authored Psak 105, it would be the height of professional irresponsibility for the other dayanim to sign their names to a psak that they have not even read themselves. This gives rise to a serious question: how is the public expected to treat this psak seriously, when the dayanim themselves obviously did not, and their negligence is evident on every page? That we are told that this psak is representative of several other psakim of the IBD is deeply troubling.

III Conclusion

Each one of the fundamental issues raised above would, on its own, provide significant cause to question the IBD’s judgment, to say the least. Collectively, to a careful and qualified dayan, they constitute a stunning display of incompetence. That the IBD would publish and rely on such a fundamentally flawed and lacking psak, and then proudly tout it as a representative example of their work, is scandalous. When viewed in light of the unprofessional and casual attitude towards heter agunot demonstrated by the myriad of technical errors enumerated in the Appendix, it should be clear why leading dayanim in America have declared the IBD and their psakim to be unreliable. The IBD is viewed by leading dayanim and poskim as a group of amateurs attempting to force their entry into an arena reserved for professionals. It is unfortunate that the general public has, until now, remained uninformed as to the specific nature of the opposition to the IBD. It is my hope that this paper will at least remedy this issue.

It is to be expected that the IBD will respond to this review in an attempt to provide solutions to the issues raised, justifications for their omissions, and excuses and/or corrections for their many errors. I would deem futile any such attempt to rehabilitate their image, for the following reasons. A qualified and competent Beit Din should not require my instructions on how to craft a complete and coherent psak; nor should they need to rely on others for complimentary proofreading. Furthermore, the stigma of incompetence is not remedied quite so easily.


The following is a list of spelling, punctuation, typographical and transliteration errors that appear in the English version of IBD Psak 105.7

1 – Synopsis Line 2: “witness who was not relate to the groom” should be “was not related”.

2 – Discussion Paragraph 1 Line 5: “and an rabbi” should be “and a rabbi”.

3 – Discussion Paragraph 2 Line 2: “Amongst, the individuals” should be “Amongst the individuals” with no comma.

4 – Discussion Paragraph 2 Lines 3-5: “Notwithstanding most poskim who rule that such individuals are invalid me’doraita (on a biblical level) in accordance with certain interpretations of Rambam’s view, such testimony is to be invalidated only on a rabbinic level.” This should read “invalid me’doraita (on a biblical level), in accordance with certain interpretations of Rambam’s view, such testimony is to be invalidated only on a rabbinic level” with a comma after the parentheses. The omission of the comma has altered the meaning of the sentence vis-à-vis the certain interpretations of the Rambam.

5 – Discussion Paragraph 3 Line 6: “will not effect the eligibility” should be “will not affect the eligibility”.

6 – Discussion Paragraph 5 Line 1: “Tzit Eliezer” should be “Tzitz Eliezer”.

7 – Footnote 1: “Divrei Ribost” should presumably be “Divrei Rivot”.

8 – Footnote 1: “geonic olam” should be “geonei olam”.

9 – Footnote 5: “Noda be-Yehuda, Mahadura Tanina” should be “Mahadura Tinyana”. This error requires more elaboration. “Tanina” is an Aramaic word found often in the Talmud, which means “we taught”. “Tinyana”, which shares a similar (Hebrew/Aramaic) spelling with “Tanina”, is the Aramaic word for “second”. The second volume/collection of Noda be-Yehuda’s teshuvot is known as “Mahadura Tinyana”, as is the second volume of R’ Akiva Eiger’s teshuvot, among others. Our dayanim are apparently unaware of the proper pronunciation of the Aramaic word that means “second”, having confused it with the common Aramaic word that means “we taught”. It is unfathomable to find such an elementary error in basic Talmudic Aramaic within a psak signed by dayanim who purport to be qualified to be matir eishet ish without a get.

10 – Footnote 8: “Tzit Eliezer” should be “Tzitz Eliezer”.

11 – Footnote 15: “Beit Dn” should be “Beit Din”.

12 – The transliteration is inconsistent throughout the document. For example, khaf sofit is transliterated as “ch” in “Shulhan Aruch” (Discussion paragraph 2, as well as footnote 12) and in “Aruch Hashulhan” (footnote 13), but as “kh” in “Shakh” (footnotes 3,7, and 8). Additionally, khaf is transliterated as “h” in Mordehai (footnotes 5 and 12).

13 – Chet is transliterated as “ch” in “chupah” (Synopsis line 1), but as “h” in “hupah” (throughout the Discussion section).

14 – The transliteration of khaf as “h” in “Mordehai” does not correspond to any transliteration convention that I am aware of.

The following is a list of the spelling, punctuation and typographical errors that appear in the Hebrew version of IBD Psak 105.8

1 – תמצית Line 1: “בםפק” should be “בספק”.

2 – עובדות המקרה Line 3: “לגב.אהרליך”should have a space after the period.

3 – דיון Paragraph 2 Line 2: “בוגר” should presumably be “מבוגר, which would be consistent with תמצית Line 1.

4 – דיון Paragraph 4 Line 2: There should be a period following “עדותן בטלה”.

5 – דיון Paragraph 5 Line 2: There should be no period following “עדותן בטלה”. It appears that the missing period from number 4 above mistakenly made its way here.

6 – החלטה Paragraph 2 Line 6: “כמוכן” should presumably be “כמו כן”.

7 – Footnote 1: “דברי ר’ בות” should presumably be “דברי ריבות”.

8 – Footnote 8: “ורבים קיימיה כוותיה” should be “ורבים קיימי כוותיה”.

9 – Footnote 10: “שו”ת מהרי אסאד” should be “שו”ת מהרי אסאד ג:מ”.

10 – Footnote 13: “תו”ת שערי רחמים” should presumably be “שו”ת שערי רחמים”.

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Audio Roundup Special Mon, 21 Sep 2015 23:30:50 +0000 Introduction to Bioethics-Georgetown University

by Joel Rich

I really wanted to understand how others wrestle with issues that halachists are dealing with.  Interesting parallels and reminder that a Torah state would require us to deal with a lot of issues which we’ve avoided.  Again, I perceive a lot of “heart gut” positions with backed into logic.

Unit 0  Introduction


Up until 1970’s medicine was very paternalistic.  Biotech has introduced many new issues.  (Me – and society has changed.)


Unit 1  Patient Autonomy

Historical Overview

Patient rights were abused up through the 1970’s (me – or maybe rights were evolving?)

Autonomy and Medical Paternalism

Autonomy and paternalism are often a matter of degree.  A patient may be in a weakened emotional, mental or physical state.  Is it paternalistic to not allow someone to die?  (Immediate thought – our halachic focus on obligations vs. American law’s focus on rights.)

Informed Consent

Informed consent is more than just signing a form that you don’t read.  (Is there a halachic parallel to informed consent?)

Truth Telling

Are staged disclosure or ambiguous responses ever-appropriate paternalism?  (I’m pretty sure the halachic response is yes.)

Refusal of Life-saving Treatment

Does patient autonomy allow refusal of life-saving treating (e.g. Christian Science)?

Parental Autonomy

Parents have decision-making rights for their children but are limited by state’s interest in the child’s health and welfare.  [What is the parents’ role according to Halacha (vs. that of beit din)?]


Unit 2  Provider Autonomy

Autonomy Rights

There’s negative autonomy (you can’t stop me from exercising my autonomy) and positive (I need you to help me do something).  The former is clearly a stronger right.  Your obligation to help me may be contingent on (i) are you violating other obligations?; (ii) how serious is my situation?; (iii) how well situated are you to help?; (iv) does your roll have specific responsibility? (e.g. first responder).  [Halacha certainly trumps autonomy in many cases.  It’s the grey ones that are tough.]

Obligations and Autonomy of Providers

Look at those 4 issues above when patient and provider autonomy conflict.  The first is where the real action is when the provider has a conscientious objection.  (I don’t think Halacha recognizes a conscientious objection.)

Conscientious Objection

Seems clear we allow exemptions for individual conscientious objection although there’s a difference between declining to participate vs. putting new obstacles in place.  The boundaries are not clear (me – and continue to change!).


Borderline is unclear in how much involvement makes you guilty for the results of an act.

Institutions and Complicity

Catholic hospitals provide much care.  Do institutions have “rights”?  Catholic hospitals have rules for how much involvement they can have in treatments they disagree with.  Everyone would agree you need clear communication and guidelines.


Unit 3  Disability


What is a disability?  What is a trauma?  What is normal?


What is disability?  What is normal?  We’re all “disabled” at different points in our lives and we’re all dependent on technology and other people just about all our lives.  It’s only “unusual” dependence we notice.

Two Models of Disability

The more traditional medical model is disability is a disease of the body that needs bodily intervention.  The social model looks at the interaction between society (through the environment [physical and non-physical] it creates) and the individual.

Genetic Testing and the Paradox of Harm

While we might think of prenatal genetic testing as a form of our reproductive autonomy, we might also ask about the baby’s autonomy – isn’t existence almost always better than non-existence for the child?

Critiques of Routine Prenatal Testing

Does routine prenatal genetic testing:

  • send a negative message to those already living with the disease?
  • send a negative message to parents that they shouldn’t want imperfect kids?

  • encourage abortion based on prejudice

  • encourage the medical rather than social model of disease/disability and lead to more discrimination.  No one mentioned shomeir ptaim hashem.

Creating a Deaf Child

The deaf community is very active and parents may want their children to be part of it.  Some argue that children are entitled to the broadest options available to them but this is not so clear.


Unit 4  Enhancement


Think about Cyborgs and genome alterations – they’re here already.

The Concept of Biomedical Enhancement

We already have biomedical enhancement (caffeine).  Each possibility needs to be considered in the context of the goal pursued and how we pursue it.  Issues include: 1) how confident are we that we understand all the risks?; 2) what are the implications for social justice?; 3) how will it affect our human identity/sense of self?  (Who makes these decisions?  Who would make them in a Torah run world?)

Enhancement and the Ends of Medicine

What about off label uses (e.g. ritalin for increased concentration)?  Are we aware of all the dangers?  Is the purpose of medicine to combat illness or to enhance our lives?  There is also a social downside – who will have access?  Will there be pressure to be perfect?  Will what’s normal now become unacceptable later?

Performance Enhancing Drugs

What performance enhancing drugs should be banned in sports?  Should we only be concerned with “natural” talent (and how do you define natural)?  Key issues are safety, will everyone be forced to take drugs to compete and what is the goal of sports anyway?


Radical Enhancements

Should we just rely on evolution to do the job but evolution doesn’t really optimize for current happiness.  There are social justice concerns and we need to carefully consider the trade-offs.  (Paradigm shift always hurts some groups – see mid-career changes from a defined benefit to a defined contribution plan.)

Radical Enhancement and the Human Good

While changes occur naturally to the genome over time there are philosophical and practical issue with making them ourselves.  Do the changes violate human dignity or should we change things for the better?  Is the genome a private or a community good?  (Me – law of unintended consequences.)


Unit 5  Collaborative Reproduction


With modern fertility technology, there are a number of participants who could be called parents.  We also now end up with a mixture of contract and family law.  (Lots of Halacha still evolving on this issue – the wheel is still in spin.)

What Is a Parent?

Is  parent defined by who raises them (social parent), the genetic contributor or the gestational parent?!

Is There a Right to Be a Parent?

Do  the children have a right to know their genetic lineage?  Who decides the nature of the relationship of the various participants (including the right to know).  [Me – Halacha seems concerned about the lineage from a forbidden marriage viewpoint, but what about medical and kavod av issues?]

Gamete Donation

More on identity issues.

Reproduction, Markets, & Commodification

Should there be a free market in fertility related field (babies, sperm, eggs…) or are there some elements of human dignity that should not be for sale?  (And would melech or beit din enforce?!)

Surrogacy & Exploitation

Surrogate mothers in India – is this exploitation or an act of beneficence by allowing those women to better themselves compared to the alternative life they might lead?


Unit 6  Abortion


Pro Life vs. Pro Choice – be a little humble and try to understand the other side!

The Concept of Moral Status

The embryo and mother, how do we think about their competing rights?  Think about “moral status” of each and is it possible to have partial (vs. full) moral status and what is it dependent on?  (Me – pre-40 days, pre-crowning seem halachic triggers for varying levels of moral status.)

Restrictive Views of Abortion

Does the embryo have full or partial moral status?  Is it’s status based on future life autonomy?

special dignity

Under natural law we’d define an embryo as having moral status because that’s what it naturally is – in its development state.

fetus or embryo has a moral status

Even under natural law, in case of rape can a mother be forced to take on an involuntary risk or can we place her back in her original condition?

Permissive Views of Abortion

Maybe moral status is based on conscious state of mind (i.e. an embryo isn’t conscious).

early human life develops gradually

Maybe a person develops over time and so moral status isn’t Boolean and you can have partial moral status.

three importantly different permissive views of abortion

Three views that support permissive abortion are:  1) early human life has no moral status; 2) woman’s view is key and she can terminate pregnancy if continuation is a setback (in almost any sense); 3) a woman’s dominion over her body is the key right.


Unit 7  Death & Surrogate Decision-Making


Most folks want to die comfortably at home surrounded by family but in the U.S. this doesn’t happen in the majority of cases.  Part of this may be cultural – we are “battling” death (especially medical folks) and view death as a failure.

Ending Life Support for Others: An Overview

Who decides when it’s time to allow the process of death (brain death, etc.) to continue when the individual is unable to do so?

The Definition of Death

Physiological tests of “brain death” are available (Europe has an additional test) but how does society define death?  1) cessation of circulation?; 2) whole brain death (all brain functions cease) [he says orthodox Jews do not accept this]; 3) higher brain death (e.g. just having a gag reflex isn’t enough to be considered alive).  Defined as irreversible loss of consciousness (yeah – like we know what consciousness really is).  Maybe there should be one standard with options for individuals to choose other definitions.

Ending Life-Support

Is there a duty to continue treatment for all patients?  The consensus view is you don’t have to continue if:  1) stopping is passive; 2) you are not intentionally causing death (not stopping treatment is the same as not starting); 3) not extraordinary measure (extraordinary is defined as where benefit is less than the burden – the mainstream view is anything, even water, can, in the right circumstances, be stopped).  [Me – compare to mainstream halacha – generally can’t stop water, air.  (btw – Halacha requires whom to pay for continued care?]

Surrogate Decision-Making

Where there’s written or prior oral guidance from the patient, you do what they wanted.  If no one is available and the person was never competent, courts will appoint someone to decide.  If no direction, the family is allowed a “reasonable range” to decide “what is in the best interest of the patient”.  [Me – R’HS has said in this case you have to guess what the patient would want which is different from this standard.]


Who gets to decide when more care is futile?  Parties may agree that no improvement will come (physiological futility) but place different value on life.  So why stop treatment?  1) limited medical resources; 2) professional integrity (Dr. doesn’t think it’s appropriate to continue treatment).


Court says if there’s: (i) an ongoing physician relationship; (ii) technically can continue treatment; (iii) no other physician will do it; (iv) there’s equitable (private) funding and (v) no one else will die, then medical provider must continue care in U.S.

(The actuary in me would point out that resources are always limited and “private” insurance funding comes from public pocket pretty much as Medicare does!)


Unit 8  Voluntary Euthanasia

The Euthanasia Debate: Overview and Definitions

Euthanasia (easy death) is a contentious issue.  We need to be clear on definitions – speaker views it as intentional termination of patients life by doctor because doctor thinks death will benefit the patient (reduced suffering).  Need to consider voluntary vs. non-voluntary, active vs. passive interventions.

Three Approaches to the Value of Human Life

Three approaches to putting a value on human life:

1)      Vitalism – human life is the supreme good

2)      Sanctity of life – human life is a basic/intrinsic good but there are other considerations (e.g. Doctrine of Double Effect)

3)      Instrumentality of life – human life is an instrumental good (so just need to worry about what is a good life)

The Argument from Autonomy

“It’s my life and I’ll do what I want” (cue “The Animals”).  The counter arguments are that life is still more important than your autonomy and if someone is depressed, etc. can they truly be considered autonomous?  (Of course we say we’re just trustees of our bodies.)

The Argument from Beneficence

Doctor has right/duty to put an end to suffering.  Even so, couldn’t you do this short of death and who will define applicability (is existential pain actionable?).

The Argument from Hypocrisy

Doctors can accomplish the same end (physician assisted suicide) through legal means.  Yes, but perhaps that doesn’t allow non-moral means.

Slippery Slope Arguments

Maybe physician assisted suicide is OK but it’s a slippery slope to non-voluntary euthanasia and how can you be sure you’ll prevent abuses (e.g. people feeling pressure to do so, depression, palliative care).


Unit 9  Climate Change

Climate Change as a Moral Issue

The global poor are likely to suffer through any environmental improvements.  The likely impact of global warming is dramatic, developed nations must address this.

Costs and Options

How can we deal with climate change?  Combination of adaptation (deal with results) and mitigation (reduce greenhouse gasses).  It’s getting worse and can be expensive.

Models of Moral Responsibility

There are a number of philosophical issues in deciding how to apportion the costs of adaptation and mitigation across countries and individuals.

Climate Change and Human Rights

Using human rights as a basis for allocating responsibility to fix the situation.  Should there be global reciprocity?  [Me – how would Halacha deal with ambiguous causes and damages?]

What Can Individuals Do?

Philosophical positions concerning whether there is a moral case for individuals to take action to offset their (excess?) carbon footprint.


Unit 10  Global Issues in Bioethics


There are a number of ethical issues concerning cost and ethics involved in medical tourism, clinical trials overseas and the manipulation of the food chain.

Medical Tourism

From a pure free market standpoint, medical tourism makes sense and it would be hard to stop as long as there is cost/availability benefit.  However, it can be seen as exploitive of citizens in poorer countries and there are accountability issues if things go wrong).  (Does Halacha have an opinion?)

International Research


Cross border research (conducted on 2nd country population by 1st country).  May be cheaper/easier to recruit participants or it’s about local conditions.  First case has lots of room for exploitation but both can have ethical issues (cultural misunderstandings, informed consent).

What Is Exploitation?

Defining exploitation for our purposes:  Exploiter has direct advantage from offering exploitee poor choices (even if exploitee is still better off than if no choice was offered).

Feeding the World in 2050

Global demand for nutrition is increasing as is the demand for certain types of nutrition.  How will we allocate the resources and outputs with global equity?

Fairness & Concentration of Market Power

Elongated food supply chains have led to market consolidation which can have negative implications for global poor.


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Books Received Mon, 21 Sep 2015 19:00:39 +0000

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Daily Reyd Mon, 21 Sep 2015 12:10:39 +0000
From Medieval Ashkenaz Techinah Supplication to Iconic Segulah: The Chasidic Transformation of G-d of Abraham
R Gordimer: Open Orthodox Theological Challenges for the New Year
R Slifkin: The Rationalist Exodus
Sharp drop in Western Wall prayers before Yom Kippur
Washington scandal reveals politics behind European Jewish memorials
Australian government minister sworn in with Hebrew Bible
R Lipman: The era of ‘Secular’ Israeli Jews is over

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