Online Megillah and Parshat Zakhor Readings During the Corona Virus Epidemic

Please note: This is the first in a series of three articles on this subject.  Please also see this response by Rabbi Noah Gradofsky as well as Rabbi Yuter’s reply to Rabbi Gradofsky.

1. It has been recommended by some halakhic voices that these two obligations may be discharged by telephone or electronically, such as via Zoom or by Skype. This approach has been approved in the past by leading American poseqim, including Rabbis Moshe Feinstein and Hershel Schachter.  The Israeli National Religious Rabbis Benny Lau and Eliezer Melammed also endorse electronic Megillah readings.
2. The Israeli authorities, Rabbis Sh’lomo Zalman Auerbach and Ovadia Yosef, applying an alternative Halakhic hermeneutic, disagree and rule restrictively. The leading Open Orthodox scholar, Rabbi Dov Linzer, sides with the lenient American authorities [https://library.yctorah.org/lindenbaum/zakhor-and-megillah-for-those-under-quarantine/], while I concur with the restrictive Israeli authorities.

3. The Torah commands Israel to observe zekhirat Amaleq [Deut. 25:17-19], a command that has been popularly and largely misunderstood. The Semitic root zkr is usually rendered “remember.” But in Ugaritic, a Northwest Semitic language discovered in 1929 at Ras Shamra, Syria, the root also means “to speak.” This semantic sense is also attested at Psalms 145:7. Exodus 20:8 commands that Israel “zakhor” the Shabbat, and following this secondary semantic sense, Maimonides maintains that this command must be fulfilled with words, be-d’varim, by saying qiddush [Shabbat 29:1]. Unfailingly precise and meticulously consistent, Maimonides writes that bMegillah 18a rules that this command of zkr is performed with the mouth, and not just with memory. My revered teacher, Prof. Baruch A. Levine, often reminded me that pre-Written Torah ideas and idioms sometimes found their way into the Oral Torah library, demonstrating that “Tradition”  is not merely a matter of faith; it enjoys empirical linguistic attestation.

The Oral Torah does not tell us how, or when, to observe this rule of remembering/mentioning what Amaleq had done to Israel. Rarely cited is Sefer-Hinnuch  603, which stresses the orality of the obligation and its annual or occasional observance. Minhat ha-Hinnukh loc. cit. argues that this zekhira need be done but once in a lifetime. Significantly, the Oral Torah canon says nothing about requiring that this command be fulfilled by reading the Scriptural account from a kosher Torah scroll.

At bMegilla 17b, Tosafot s.v. kol ha-Torah makes the astounding, textually unattested claim that all of the canonical Torah readings are rabbinic, except the Amaleq reading, which is claimed to be a Torah obligation.  This apodictic assertion is proclaimed but not demonstrated, initiating the practice of requiring that Parshat Zakhor be read from a kosher Torah scroll with a minyan [Rosh. Berakhot 7:20].

4. The Mishna Berurah [685:16] and R. Joseph B. Soloveitchik [Hararei Qedem 1:185] both ignore the plain sense of the Oral Torah canon and adopt the innovative Tosafist opinion that we are required to [a] remember what Amaleq did to our ancestors [b] as a Torah obligation [c] from a kosher Torah scroll. Oddly, R. Soloveitchik, usually thinking intuitively as a Nahmanidean, here ignores Nahmanides [to Deut. 25:17] who, citing the canonical Halakhic Midrash Safra, be-Huqqotai 1:3, only requires the telling of the Amaleq narrative, making no mention that it is necessary to read the portion from a kosher Torah scroll.

There is some debate whether we are required to say zecher Amaleq  [two segols, six dots] or zeicher Amaleq [five dots, a tsere and a segol], when reading the  Amaleq Torah portion. Philologically, the five-dot option seems to be the correct reading. At stake in this debate is the nature of Jewish law.  Is Jewish law in theory a rational, rule driven, and publicly accessible hierarchy of norms, following Maimonides [Introduction to the Yad Compendium] or, following medieval Ashkenazi doctrine, is the Great Sage, or  Gadol ha-Dor, the de facto source of Jewish law whose prescriptions [a] require mandatory compliance and [b] are not subject to review?

Since reading Parshat Amaleq  from a proper Torah scroll is certainly a legitimate means of fulfilling the obligation to mention what Amaleq did to Israel, it would be morally improper to and socially unwise to subject the Tosafists, who are Gedolei ha-Dor, what R. Soloveitchik calls Hakhmei ha-Mesorah, to review by anyone who is not himself a recognized, Great  Sage. The fact is that Ashkenazi Orthodox Jewry is only presented with the Tosafist opinion, and not the range, or logic, of the contending views.

By treating the Tosafist view as “official religion” Jewish law, the Orthodox laity as well as rabbinate are conditioned to treat elite religion policies as if they are Torah law, even if they inadvertently add to the roster of Torah law. By assigning this special status to the Amaleq Torah portion, Great Rabbis actually condition the community to accept rabbinic authority based on the charisma of office and personality, not on the power of persuasion.

In my view, once there is a declared medical emergency, those with compromised immunity systems may not attend synagogue or go anywhere that may expose them to the danger of contagion. The [Orthodox] Rabbinical Council of Bergen County ordered that synagogues be closed, restaurants only sell take-out, and Jewish parochial schools be closed [https://www.northjersey.com/story/news/new-jersey/2020/03/12/nj-coronavirus-synagogues-bergen-county-ordered-shut-down-orthodox-rabbis/5031308002/]. This ruling is correct even if the Amaleq Torah portion reading were a Torah obligation.  The fact is one should not feel guilty, compromised, or inauthentic by not hearing the public readings of the Esther Scroll or the Amaleq portion.

5. Unlike reading Parshat Zakhor, reading Megillat Esther from a kosher Esther scroll is a necessary requirement for fulfilling the commandment. If quarantined and unable to attend the synagogue Megillah reading, is one able to discharge one’s obligation electronically, by phone, Zoom, or Skype? Rabbi Herschel Schachter ruled that “[i]n a situation in which it is impossible to have an in person mikra megillah due to pikuach nefesh [protecting life] considerations caused by coronavirus, it is permissible to hear mikra megillah via a live phone call or video? We follow the rule that sha’as had-chak ke-di’eved dami; in a sha’as had-chak [pressing situations] we allow le-chatchila [from the start] what is usually only accepted bidi’eved [in worst-case scenarios]. The beracha of ha-rav es rivainu however should not be made unless there is a minyan present where the megillah is actually being read” [https://judaism.stackexchange.com/questions/111842/megillah-for-someone-in-quarantine-due-to-coronavirus].

R. Shelomo Zalman Auerbach’s understanding follows from his close reading of mRosh ha-Shana3:7, which posits that one must hear the actual sound  [qol] of the shofar, not an echo or any otherwise reproduced sound, even if the reproduced sound is both quantitively and qualitatively identical to the original shofar sound. He explains that the human voice hits a membrane that modifies the sound, rendering that second sound something other than the mandated shofar sound, and hence one does not fulfill the obligation to hear the shofar sound when one is only hearing a sound like/similar to the shofar but not produced by the shofar. If someone is placed in quarantine for health issues and unable to hear the Megillah reading, she or he is an anus, i.e. forced by circumstances to be unable to observe the command, that person is exempt, i.e. not legally obliged to observe that command. The Torah does not command rules that are impossible to fulfill [Deut. 30:12].

6. At Iggarot Moshe Orah Hayyim2:108, R. Feinstein believes that electricity is not adequately understood by the rabbis upon whom it is proper to rely. Given that most Haredi Gedolim are usually not trained in college physics, his point is very well taken. (Ironically, a notable exception to this sensibility is R. Feinstein’s polymath son-in-law, R. Moshe D. Tendler, PhD.) Inclined to leniency when Orthodox discourse, discipline, and sensibilities are not compromised, R. Feinstein insists that what is forbidden and disqualified by Law to fulfill the shofar requirement is the echo, which is not the sound made by the shofar itself when blown by an adult Jewish male.  Since the microphone enhanced sound is indistinguishable from sound made by blowing the shofar, it is improper to protest those who rely on the electronically enhanced Megillah reading. But R. Feinstein, a decisor with a keen sense of Orthodox social propriety, who was ever watchfully fearful of the slippery slope, advises against succumbing to the socially disruptive effect of adopting gratuitous innovations. This is apparently why any proposed change in Orthodox usage is, at least for the Yeshiva “world,” taken to require the approval of Great Rabbis; a proper change in usage may not be allowed to disrupt Orthodox expectations, sensibilities, and propriety.

7. Feinstein is a Legal Realist, for whom the law, in practice, is what the decisor, that is himself, says it is. He is however brutally honest and acutely aware of the responsibility he carries upon his shoulders. In the introduction to his responsa, R. Feinstein concedes that he does not decide questions according to the perfect, Divine perspective, since the world that humankind inhabits is imperfect, the Great Sage may not rule according to the perfect law, but according to his religiously informed and refined intuition regarding what course of action is situationally appropriate. Only a Great Sage possesses the erudition, intuitive wisdom, andstreet smart sensitivity to issue rulings that are socially wise, situationally appropriate, and that resonate to the community of the committed to be spiritually authentic.

Confronting the facts that Jewish law forbids clapping and dancing on holy days [bBetsa 30a], R. Feinstein notes that this norm is widely ignored by the Orthodox faithful, and that the lenient apologia of Tosafot permitting dancing and clapping contradicts a semantically unambiguous rabbinic rule. While R. Feinstein does not       critique the Orthodox rabbis who clap and dance on holy days, he adds that it is proper to be strict (and not dance or clap on holy days, perhaps because he does not want to undermine institutional Orthodoxy’s  claim to exclusive legitimacy and authority) [Iggarot Moshe Orah Hayyim 2:100].

At Iggarot Moshe Yoreh De’ah 2:49. R. Feinstein will not formally forbid smoking cigarettes, in spite of the facts that cigarette smoking has been found to be dangerous and the Torah enjoins Jewry to take exceptional care to preserve  personal health [Deut. 4:15].  The reason he gives is that this rule is ignored by many Orthodox Jews, including Gedolei Torah. In  spite of Leviticus   4:13, which implies that an act done by everybody may indeed be in error, R. Feinstein will not charge the Orthodox faithful with Halakhic infidelity for smoking cigarettes. Ever the consistent Legal Realist, R. Feinstein strains to justify popular Orthodox communal practice. He adds that it is nevertheless proper not smoke, just as it is to his view appropriate not to dance or clap on holy days, in spite of the Tosafist dispensation. In order to preserve the popular perception of the Orthodox community’s integrity, R. Feinstein tolerates some acceptable sins in the imperfect world that Jewry happens to inhabit, just like the case of holy day clapping and dancing.

8. In contrast, Rabbis Auerbach and Ovadia Yosef are Legal Positivists, basing their rulings on the language of the Oral Torah norms that are attested in the canonical  Tannaitic and Amoraic At Yehavveh Da’at 2:68, R. Yosef first notes that partitions, whether of iron [bSota 38b] or, in our situation,  a telephone receiver, cannot impede prayers’ rising to Heaven. He reasons, based on Shulhan Aruch Orah Hayyim 55:20, that absent filth or an idol, it is permissible to answer “amen” to a minyan’s Qaddish and Qedusha, even if one is not standing with the minyan. And there would likely be filth, i.e. sewage, and in Diaspora, prayer statues [for Roman Catholic and Shinto rites in private domiciles]. However, R. Eliyahu b. Solomon Kramer, the Vilna Gaon, disregards such filth if it is unseen [Ma’aseh Rav 47]. Distinguishing between a record and a live radio broadcast, R. Yosef allows answering “amen” to a blessing by radio, Zoom, or Skype, but actual commandments must be performed by people who are commanded to fulfill them, with the conditions imposed by the semantic [and not conjectured conceptual] formulation of the canonically memorialized legal norm of miqra Megillah, of hearing the oral reading of the Megillah from the mouth of an adult Jew.  Hearing the Megillah electronically does not satisfy this requirement. Computers are not issued commandments by the Torah. The sounds they make cannot fulfill commands that are addressed to living, Jewish adults to whom the command is addressed.

9. At https://library.yctorah.org/lindenbaum/zakhor-and-megillah-for-those-under-quarantine/, the Open Orthodox YCT Rosh Yeshiva, R. Dov Linzer, also a Legal Realist, concludes:

For megillah – One may rely on those Aharonim who rule that a person fulfils his or her obligation [by telephone, Zoom. Skype, or the like]. This is based on the position that an electronically reproduced sound that is heard immediately as the person is speaking is considered to be the speaker’s own voice. This is because halakha would focus on the fact that this voice is experienced as the speaker’s own, regardless of the fact that it has been reproduced. If one has a strong internet connection, it would be better to use FaceTime or Zoom, as seeing the person who is speaking makes one experience it even more as hearing from the person directly.

For Zakhor – Ideally the shul can arrange for this to be read in a minyan – without aliyot or brakhot – after Shabbat so that those in quarantine can phone in or Zoom in. Alternatively, once the quarantine is over, the person could read it him or herself directly from a Torah scroll, or have someone do it for them. Another option is to phone into the reading of the Torah on Purim morning, although this is less than ideal.

Having been socialized in the yeshiva world, R. Linzer, like R. Feinstein, assumes that what is done is usually what ought to be done, that familiarity breeds stability, continuity, and a sense of legitimacy. He assumes that the Tosafist “interpretation” is by definition a legitimate opinion because Great Rabbis or “Masoretic Sages” are assumed to enjoy immunity from review or assessment. These Sages are believed to issue opinions that, by dint of their personal charisma, are by definition legitimate because God guides them to rule correctly based on their intimate, intuitive grasp of Torah. The problem with this understanding is that the popular Tosafist opinion is unattested in the Oral Torah canon, and since it is presented as a Torah norm and not as a custom, the uninformed Orthodox street culture is told that the Tosafist view is the only legitimate opinion when, in fact, the claim may, and to my mind, ought to be contested.

R. Linzer tries to rule as leniently and inclusively as responsibly possible. Like his Haredicolleagues, he regards a Great Rabbi’s opinion to be valid by dint of that Great Rabbi’s charisma. In order to maximize communal cohesion, inclusion, and good feeling, R. Linzer strives to limit the social and psychological dislocation wrought by the Corona virus. He therefore regards a Zoom or Skype Megillah and Zachor reading to be acceptable.

 

10. If someone really believes that God is the Torah’s Author, one would apply a positivist or formalist approach to Jewish law, taking God at God’s word. Upon inspection and study, one discovers the law’s humanity, sanctity, and wisdom. Halakhahserves simultaneously as a religious code and as an epistemological map; by surrendering to the law, the faithful discover their personal autonomy, empowering the informed, individual Jew to act as an autonomous moral agent. Any act that is neither forbidden nor required is an authorized, permitted act. Jewish law does recognize rights, legitimates autonomy, and empowers the individual to be an autonomous moral agent who, by citing the Torah  canon, is able to hold the elite Great Rabbis to the actual norms of Jewish law. There are both  Legal Positivists and Legal Realists in the modern [cosmopolitan] and Haredi [so-called “ultra-Orthodox] camps. Orthodox Legal Realists have to realize that presenting their policy decisions as if they are God’s inerrant word can cause confusion. Speaking in an oracular, prophetic voice may be personally thrilling, but this articulation of authority does not reflect the judicious judicial modesty expected of someone who mediates God’s inerrant word. Legal Positivists must take care not to suppress information that is relevant; the Tosafist view that the Amaleq Torah reading is official Jewish law is not only not the only view, it is not even the most logical opinion based upon the Oral Torah evidence.

 

11. In conclusion:

A. There is no recorded Oral Torah norm memorialized in the Oral Torah library that legislates that the commandment to remember and/or mention Amaleq must be observed yearly by reading the portion from a kosher Torah scroll. By canonical statute one may read the Amaleq narrative from a Hummashor, if one wishes, tell the Amaleq narrative in their own words, especially if one is quarantined because of a medical emergency.

B. If one is physically unable to hear or read the Scroll of Esther on Purim due to conditions beyond one’s control, as in the case of a of a governmental quarantine, one is actually exempt from the mitsvah [b’Avoda Zara 54a]. The mitsvah is called miqra Megillah, that is an oral human reading [literally, “calling out loud] from the properly written Esther Scroll by a Jew who is himself or herself obliged to perform the rite. If one is unable to attend a public Megillah reading, hearing the Scroll being read over the radio is certainly a worthwhile commemorative exercise, but we ought not to delude ourselves by suggesting that this act in any way discharges the Megillah reading obligation. Therefore, for one who hears electronic Megillah readings, the attendant blessings should not be said because no commandment has been fulfilled by these electronic sounds. The claim that a Zoom, Skype, or u-tube reproduction of a human Esther Scroll reading actually discharges the Halakhic obligation of miqra Megillah, is dubious, not because this religious innovation is itself   Halakhically improper but because the Oral Torah norm requires that the reading that discharges the Megillah obligation is the reading performed by an adult Jewish reader.

C. Hakham Yosef Faur and ha-Rav Prof. David Halivni both point to bBava Metsi’a 86a for the Rule of Recognition, what the British scholar H.L.A. Hart calls the rules that determine the validity of a proposed Rule of Obligation, or mitsvah, here the principle that apodictic Halakhicnorms that oblige all Israel may not be proclaimed after the Amora’im Ravina I and Rav Ashi. Given the Torah’s predilection for a justified law, Orthodox rabbis would do well to avoid prophetic, apodictic, intuitive or charismatic pesaq, where we assume that rabbinic authority resides in the charismatic rabbinic person rather than by the law’s semantic sense and legal logic as it appears in the canonical rabbinic text.  Intuitions are legitimate hunches that guide and direct one’s Halakhic research; only when a proposed claim is shown to not violate any established Oral Torah norm is that claim valid. Since no Beit Din ha-Gadol has invested  Maimonides, Tosafot, or  for that matter,  any post-Talmudic authority with inherent canonicity, popularly conceived as  Da’as Torah, invoking their names and their charisma is not a legitimate source of  normative law. If we tell our communities that hearing an electronic Megillah broadcast 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].

D. There is no sin in not observing a commandment that one is physically unable to observe. The pastorally appropriate electronic reading may not discharge a real Halakhic obligation, but it does remind the individual not to forget the ideal. We study the laws of ritual sacrifice in order to remember them when the Jerusalem Temple will be restored. We do the best that we are able. Similarly, we do not say a commandment blessing for Hillel’s koreichsandwich, which commemorates [zeicher (and not zecher) miqdash ke-Hillel] rather than celebrates the qorban Pesah offering, which today has sadly fallen into disuse. If we pretend that this commemoration is the equivalent of the commanded, sanctifying act, we abdicate our obligation to do our part to restore the Torah ideal; if we fail to commemorate the command, it may be dropped from our collective memory. By realizing that something is missing when we do not hear a Megillah reading by a Jewish adult from a kosher scroll, we will appreciate observing the commandment at happier and more normal times.

Please note: This is the first in a series of three articles on this subject.  Please also see this response by Rabbi Noah Gradofsky as well as Rabbi Yuter’s reply to Rabbi Gradofsky.