Please note: This is the second in a series of three articles on this subject.  Please also see the original responsum by Rabbi Alan J. Yuter as well as Rabbi Yuter’s reply to Rabbi Gradofsky.

At https://utj.org/viewpoints/responsa/reading-megillah-and-parshat-zakhor-during-the-corona-virus-epidemic, my teacher Rabbi Alan J. Yuter argues that one who is subject to quarantine ought not go to synagogue to hear Megillah and is halakhically exempt from the obligation to hear Megillah.  Rabbi Yuter further argues that while it is laudable for such a person to hear Megillah via live stream or telephone (herein “telephonically”), such an act does not fulfill a person’s obligation to hear Megillah.

I thoroughly agree with Rabbi Yuter’s conclusion that one would be exempt from the mitzvah while quarantined if the duty to hear Megillah could not be fulfilled telephonically.  In fact, I would argue (and I have confirmed Rabbi Yuter would agree) that a quarantined person is forbidden by halakhah from endangering herself or himself and/or others by going to synagogue in order to hear Megillah.  However, I write to explore further Rabbi Yuter’s conclusion as to whether one may fulfill the mitzvah of Megillah telephonically.  While I may ultimately agree with Rabbi Yuter’s conclusion, I believe that even when applying a rigid legal positivist’s approach to the question there is a possibility of an alternative conclusion.  If, in fact, a person can fulfill her or his obligation to hear Megillah telephonically, then one might not be exempt from the mitzvah if one is in quarantine.

 

DOES THE MISHNAH REQUIRE HEARING MEGILLAH LIVE AND IN PERSON?

In Rabbi Yuter’s positivist approach, the halakhic authority bases her or his ruling “on the language of the Oral Torah norms that are attested in the canonical Tannaitic and Amoraic [i.e. HaZa”L] writings.”  I generally share my teacher’s philosophy in this regard, though we not infrequently disagree on the details of the norms that are attested in the rabbinic canon.  In this case, Rabbi Yuter bases his conclusion on his understanding of Mishnah in Rosh Hashanah 3:7:

התוקע לתוך הבור או לתוך הדות או לתוך הפיטם אם קול שופר שמע יצא ואם קול הברה שמע לא יצא

One who blasts a shofar into a pit, a cistern, or a jar, if he heard the sound of the shofar, he fulfilled his duty (to hear the shofar), but if he heard the sound of havarah, he did not fulfill his duty.

Rabbi Yuter endorses Rabbi Sh’lomo Zalman Auerbach’s understanding that “one must hear the actual sound of the shofar … even if the reproduced sound is both quantitively and qualitatively identical to the original shofar sound.”  While this is a reasonable conclusion based on this Mishnah, I would suggest that this conclusion is far from certain.  Further, I would argue that even if that conclusion were certain, one could still reach an different conclusion based on the principle of hora’at sha’ah, emergency legislation, a topic on which Rabbi Yuter published a learned article in 2001.

Understanding the Mishnah’s ruling turns on the understanding of the term havarah.  Rabbi Yuter understands the term to mean any form of reproduced sound, including an echo.  Indeed, a number of translators render the term as “echo” (see e.g. Soncino Talmud).  However, Marcus Danby renders the term “uncertain noise.”  Similarly, Jastrow translates the term havarah as “confused sound,” in contrast to a sound that is in tune, though in reference to our mishnah he renders the term “indistinct sound (echo, opp. קול שופר [the sound of the shofar])”.  It is thus unclear whether the term havarah refers to an echo and, in any event, if the echo is rejected due to its being secondhand or due to its lack of clarity.  [AUTHOR’S NOTE ADDED 3/2/21 – Rabbi Linzer also reasonably argues that hearing an echo may be a more “indirect” kind of hearing than hearing over a phone or video conference, especially when the listener’s experience is taken into account.] Hence, it does not follow form the Mishnah that the rabbis necessarily invalidated all reproduced sound and it cannot be concluded with certainty that hearing a crisp, real-time reproduction of a reader’s voice over the internet or copper-wire telephone is rendered halakhically invalid by the ruling in Rosh Hashanah 3:7.  Legal positivism requires that we apply HaZa”L’s rulings judiciously and avoid extrapolating to potentially analogous cases in absence of clear and convincing evidence that that analogous case was, indeed, within the meaning of the rabbinic enactment.  It is hard to argue with certainty that HaZa”L’s ruling regarding an echo applies to a paradigm that simply did not exist during HaZa”L’s time.  HaZa”L issued a rule regarding echoes and not about 0s and 1s travelling over the internet or electric signals travelling over copper wire.  Rosh Hashanah 3:7 does not rule that hearing reproduced sound is invalid, but, rather, that hearing havarah is invalid.  While understanding havarah to mean “reproduced sound” is reasonable, it is far from an inevitable conclusion.

 

IF A LEGAL POSITIVIST BELIEVES ROSH HASHANAH 3:7 INVALIDATES HEARING MEGILLAH TELEPHONICALLY, CAN S/HE STILL RULE LENIENTLY?

Safek (Ambiguity) and Relying on a Colleague’s Opinions

Even if one believes that Rosh Hashanah 3:7 invalidates hearing Megillah telephonically, it seems to me there are a few arguments based on which one could still rule leniently.  If, despite believing that hearing Megillah telephonically is invalid, one were to agree that there is reasonable doubt on the issue, one could resolve this doubt toward leniency since Megillah is a rabbinic law[1] and therefore rule that one who hears Megillah telephonically thereby fulfills her or his obligation.  Rambam states at Mamrim 1:5 that in the case of a disputed law:

אם אינך יודע להיכן הדין נוטה, בשל תורה הלך אחר המחמיר בשל סופרים הלך אחר המיקל.

If you do not know in which direction the law inclines, in matters of Torah law, follow the person who is strict, in matters of rabbinic law, follow the person who is lenient.

Application of this rule turns on what it means for one to “know in which direction the law inclines.”  How certain one must be of one’s personal conclusion before one defers to this principal of adjudication is subject to interpretation.  In private email conversations, Rabbi Yuter has argued that since HaZa”L’s ruling on whether telephonic hearing is halakhically sufficient has implications for both Torah and rabbinical law, one may not rule differently for the Torah laws than for the rabbinical laws.  However, it seems to me that since there is a lack of clarity as to whether HaZa”L established a rule on this issue, one can, indeed, resolve that ambiguity toward leniency when analyzing a matter of rabbinic law.

Another potential ground for leniency (which might also apply to Torah law) would be the ability to rely on contrary opinions in pressing times.  For instance, although one generally does not fulfill the requirement of reciting the evening Shema if one recites it after dawn, in certain pressing circumstances (including if one is inebriated, which is not exactly the most pressing of circumstances), one fulfills this mitzvah by reciting the Shema after dawn but before sunrise.[2]  Although this reflects the minority opinion of Rabbi Shimon in the Talmud, which generally has no legal authority, Rabbi Yehoshua b. Levi states that “כדאי הוא רבי שמעון לסמוך עליו בשעת הדחק Rabbi Shimon is fitting to rely on his opinion in pressing circumstances” (BT Berakhot 9a).  If in pressing circumstances one may rely on an opinion which HaZa”L rejected, it follows a fortiori a rabbi should be able to rely on his colleagues’ reasonable opinion in pressing circumstances.[3]  Therefore, even if one is persuaded by the view that Rosh Hashanah 3:7 invalidates hearing Megillah telephonically, it seems to me plausible to rely on the reasonable opinions that understand this Mishnah differently.  Rabbis Linzer and Feinstein are certainly fitting rabbis to rely upon in pressing moments.  However, note that I do not presume that this pressing moment in fact calls for a lenient ruling regarding hearing the Megillah telephonically.  As discussed below in the section regarding hora’at sha’ah (emergency legislation), I think that there are valid arguments both for and against allowing one to fulfill halakhic obligations telephonically and thus arguments in favor or against the idea that this particular pressing circumstance calls for allowing one to fulfill the obligation to hear Megillah telephonically.

 

Hora’at Sha’ah – Emergency Legislation

Rabbi Yuter’s approach to halakhic decision making (with which I largely agree) is strongly constrained by the content of HaZa”L’s rulings.  Thus, for the most part, if HaZa”L enacted a rule that requires hearing Megillah directly from a human being, that law applies even though technology now offers a form of indirect hearing that is better than HaZa”L could have imagined. On the other hand, if HaZa”L did not enact a rule that requires hearing Megillah directly from a human being, then hearing Megillah even from a recording would be presumptively valid, even if HaZa”L could not have imagined the concept of recorded sound, let alone livestreamed sound, because there would be no legislation “on the books” to invalidate such a medium.[4]  However, Rabbi Yuter tempers the rigidity of his approach by emphasizing the individual rabbi’s authority for hora’at sha’ah, emergency legislation.  Rabbi Yuter discusses the nature of hora’at sha’ah  in his 2001 article in Jewish Political Studies Review.  Rabbi Yuter explains:

Just as Jewish law requires the suspension of every law in the Torah except the norms prohibiting murder, sexual offenses, and false religion, in order to preserve individual Jewish life, Jewish law also provides for its own temporary suspension in order to preserve collective Jewish life. Tsebi Hirsch Chayes’ treatment of this theme concludes with the proposition that while the Torah is eternal, Israel is enjoined to do what it must to insure that eternality. If a specific norm required by the Torah creates consequences that endanger the Jewish polity, these norms may be suspended but not abrogated. For Menahem Elon, the hora’at sha’ah idiom refers to temporary, ad hoc emergency legislation grounded in specific social and religious realities at a given time, and in response to specific circumstances, and these temporary rulings may even become a permanent part of standard Jewish law.[5]

Thus, if indeed HaZa”L ruled that commandments that require hearing must be fulfilled through direct hearing, the individual rabbi would be acting within her or his jurisdiction to suspend that requirement if, in the rabbi’s judgment, the application of such a rule would create a serious threat to the Jewish community or to observance of halakhah.  On the other hand, if in fact HaZa”L had not legislated a direct hearing requirement, the individual rabbi would be acting within her or his jurisdiction to institute such a requirement if, in the rabbi’s judgment, the absence of such a rule would create a serious threat to the Jewish community or to observance of halakhah.  Of course, this jurisdiction ought to be exercised carefully and sparingly.

With regard to Megillah reading, there are, indeed, serious existential risks associated with either permitting people to or forbidding people from fulfilling the obligation to to hear Megillah telephonically.  Therefore, it seems to me that even under a legal positivist approach, one could come to either a permissive or a restrictive ruling regardless of how one interprets Rosh Hashanah 3:7.  A short list of arguments for and against hora’at sha’ah follows.  Some arguments apply to the context of a particular emergency only, while some might apply more broadly.  Some of the arguments are purposely in direct conflict with other arguments to demonstrate why different rabbis might come to different conclusions.

 

Arguments in favor of hora’at sha’ah to suspend the requirement of directly hearing the Megillah (or other commandments requiring hearing):

• Reduces the temptation of a person to break quarantine.
• Reduces anxiety and depression that may be associated with a person’s inability to fulfill the mitzvah due to a medical condition.
• May strengthen the sense that halakhah takes medical risk (and other serious negative consequences) seriously and adjusts its expectations accordingly.
• Makes it more likely that people will engage in the Purim mitzvah. Some people who are told they should live stream Megillah but will not thus fulfill the mitzvah by doing so will chose not to do so.
• Makes Judaism more accessible to more people, including Jews who are isolated either by choice or by circumstances beyond their control.
• Emphasizes that while halakhah does not ask us to do the impossible or unwise, it does ask us to do as much as is reasonably possible given the circumstances.
• Reduces the perception that halakhic Judaism is arcane and unable to adjust to modern realities.

 

Arguments against hora’at sha’ah to suspend the requirement of directly hearing the Megillah (or other mitzvot requiring hearing):

• May undermine people’s sense that halakhic requirements are suspended when fulfilling those requirements cause danger (or have other serious negative consequences). “If it’s really true that I don’t have to hear Megillah, why are you bending over backwards to say that I can fulfill my obligation telephonically?”
• Possibility of reducing the desire to fulfill the mitzvah properly in the future. As Rabbi Yuter writes (arguing a slightly different point), “if we pretend that [listening to the Megillah telephonically] is the equivalent of the commanded, sacred act, we abdicate our efforts to do our part to restore the Torah ideal.”
• Suggests that the community is not ready to accept that, sometimes, due to circumstances beyond our control, we are not able to fulfill all mitzvot.
• May undermine the interest of a person in engaging in a live, in person, Jewish community which is important to the long-term survival of Judaism. People may become more interested in doing other mitzvot telephonically.
• Hora’at sha’ah might increase the perception that halakhah bends to the will of modern perceptions and tastes.

 

Arguments in favor of hora’at sha’ah to require directly hearing the Megillah (or other mitzvot requiring hearing) even if HaZa”L didn’t make such an enactment:

• Strengthens the importance of engaging in an actual, live, in person Jewish community which is important to the long-term survival of Judaism.

 

Arguments against hora’at sha’ah to require directly hearing the Megillah (or other mitzvot requiring hearing) even if HaZa”L didn’t make such an enactment:

• Makes observance of commandments more difficult in general (and in particular for Jews who live in isolation) and therefore may serve as a deterrent to engagement with halakhic Judaism or with the particular mitzvah.

 

Would Ruling Leniently Be Dishonest?

In private email conversation (including Rabbi Yuter’s review of a draft of this article), Rabbi Yuter expressed to me some reasons to decline to rely on one some of the above arguments to rule that a person fulfills her or his obligation to hear Megillah by participating in a phone call or live stream.  He fears that a permissive ruling would be dishonest, writing to me that “hora’at sha’ah to cover a falsehood bothers me” and further that “dishonesty is never OK.”  As Rabbi Yuter writes in his article, he fears that “if we tell our communities that hearing an electronic Megillah reading satisfies the Halakhic requirements, we infantilize our communities by treating them as too fragile to handle the truth, which is God’s seal [bShabbat 55a].”  To borrow a joke I’m almost certain I’ve heard from Rabbi Yuter in the past, Rabbi Yuter is arguing against Rabbenu Nicholson, and instead arguing that as Jews, we can, in fact, handle the truth.

For Rabbi Yuter, relying on the permissive opinion of Rabbi Linzer or Rabbi Feinstein, rabbis whom Rabbi Yuter greatly respects but disagrees with both in methodology and in their conclusion in this instance, would be dishonest, as would invoking emergency legislation to suspend the direct-hearing requirement.  Indeed, in a Mishnah that Rabbi Yuter drilled into my head (Horayot 1:1), the Mishnah warns that one is culpable for relying on a permissive opinion which one knows is in error:

הורו בית דין לעבור על אחת מכל מצות האמורות בתורה והלך היחיד ועשה שוגג על פיהם … פטור מפני שתלה בבית דין הורו בית דין וידע אחד מהן שטעו או תלמיד והוא ראוי להוראה והלך ועשה על פיהן … הרי זה חייב מפני שלא תלה בבית דין זה הכלל התולה בעצמו חייב והתולה בבית דין פטור:

If the rabbinical court instructed (in error) for the people to violate one of the commandments of the Torah, and an individual did so in error based on their word …. [he is] exempt because he depended on the rabbinical court.  If the rabbinical court instructed (in error, for the people to violate one of the commandments of the Torah) and one of its members knew that they were in error, or a student who was fit to give instruction (knew that they were in error ), and went and did according to their (i.e. the rabbinical court’s) word … he is liable, because he did not depend on the rabbinical court. This is the rule: One who depends on himself is liable, one who depends on the rabbinical court is exempt.

However, I don’t think that relying on a more lenient colleague’s position in a pressing situation or enacting emergency legislation is in any way dishonest, as both are halakhic methods attested to in the HaZa”L cannon.  As long as the rabbi comes clean as to the method used for coming to a conclusion, and as long as the rabbi believes that that conclusion is, overall, the correct one in the given circumstance, there is no dishonesty.  “I think that Megillah must be heard in person, but I am ruling in accordance with Rabbi Linzer’s lenient opinion,” is not a dishonest statement.

 

Conclusion

My purpose here is not to agree or disagree with my teacher on his conclusion, but, rather, to explore his method of halakhic analysis and to argue for alternative conclusions that could be drawn largely through the same approach.  I appreciate my teacher’s learned excurses as well as his continued conversation with me on this matter.  I hope that this article is enlightening to those who read it, and that the light of the Torah brings hope, comfort, and meaning to during the time that many of us will spend in isolation.  May God grant us all of God’s blessings, including the blessings of wisdom, patience, dedication, and understanding, so that we may help ourselves and others get through this difficult time.

 

Please note: This is the second in a series of three articles on this subject.  Please also see the original responsum by Rabbi Alan J. Yuter as well as Rabbi Yuter’s reply to Rabbi Gradofsky.

 

[1] See e.g. BT Avodah Zarah 7a (“ר’ יהושע בן קרחה אומר: בשל תורה הלך אחר המחמיר, בשל סופרים הלך אחר המיקל Rabbi Joshuah b. Karhah said: On matters of Torah law, follow the strict opinion, on matters of rabbinic law follow the lenient opinion”), Rambam Mishneh Torah Mamrim 1:5, Ritba Niddah 44b s.v. “דלא ברשב”ג”, Taz Yoreh Deah 397:2, Gra Yoreh Deah 397:2.

[2] BT Berakhot 8b, Rambam Laws of Shema 1:10, Shulhan Arukh Orah Hayim 58:5, 235:4.

[3] In his response to my article, I believe Rabbi Yuter overstates what occurs when one relies on a colleague’s opinion in exigent circumstances.  Such deference does not require that the deferring rabbi concedes that her or his original opinion is incorrect or that the rabbi lacks authority to rule in accordance with the rabbi’s conclusions.  Nor does the colleague deferred to have to be of greater stature or particular renown or charisma.  Rather, where a colleague has provided a reasonable and cogent argument for an alternative ruling, possibly based on that rabbi’s differing hermeneutic approach, then the former rabbi may say, “in normal circumstances, I would rule based on my own understanding and my colleague’s ruling would have no authority in my community, however, given the exigent circumstance, I will rely on my colleague’s good-faith interpretation of the law.”  Hence, on any day of the week, Rabbi Yehoshua b. Levi might rule in accordance with the majority opinion and forbid a person from reciting the evening Shema after dawn.  However, in exigent circumstances, Rabbi Yehoshua b. Levi applied Rabbi Shimon’s reasonable but generally rejected opinion.

[4] Note that it is also possible that HaZa”L’s rulings could indicate that a recorded voice would not be valid but be silent as to whether the live voice must be heard in person.

[5] Citations omitted.