{"id":2346,"date":"2020-03-31T11:12:21","date_gmt":"2020-03-31T15:12:21","guid":{"rendered":"https:\/\/utj.org\/viewpoints\/?p=2346"},"modified":"2021-03-02T15:56:36","modified_gmt":"2021-03-02T20:56:36","slug":"response-to-rabbi-alan-j-yuter-regarding-live-stream-megillah-during-quarantine","status":"publish","type":"post","link":"https:\/\/utj.org\/viewpoints\/2020\/03\/response-to-rabbi-alan-j-yuter-regarding-live-stream-megillah-during-quarantine\/","title":{"rendered":"Response to Rabbi Alan J. Yuter Regarding Live Stream Megillah During Quarantine"},"content":{"rendered":"

Please note: This is the second in a series of three articles on this subject.\u00a0 Please also see the original responsum by Rabbi Alan J. Yuter<\/a> as well as Rabbi Yuter’s reply to Rabbi Gradofsky<\/a>.<\/em><\/p>\n

At https:\/\/utj.org\/viewpoints\/responsa\/reading-megillah-and-parshat-zakhor-during-the-corona-virus-epidemic<\/a>, 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.\u00a0 Rabbi Yuter further argues that while it is laudable for such a person to hear Megillah via live stream or telephone (herein \u201ctelephonically\u201d), such an act does not fulfill a person\u2019s obligation to hear Megillah.<\/p>\n

I thoroughly agree with Rabbi Yuter\u2019s conclusion that one would be exempt from the mitzvah while quarantined if the duty to hear Megillah could not be fulfilled telephonically.\u00a0 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.\u00a0 However, I write to explore further Rabbi Yuter\u2019s conclusion as to whether one may fulfill the mitzvah of Megillah telephonically.\u00a0 While I may ultimately agree with Rabbi Yuter\u2019s conclusion, I believe that even when applying a rigid legal positivist\u2019s approach to the question there is a possibility of an alternative conclusion.\u00a0 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.<\/p>\n

 <\/p>\n

DOES THE MISHNAH REQUIRE HEARING MEGILLAH LIVE AND IN PERSON?<\/strong><\/h1>\n

In Rabbi Yuter\u2019s positivist approach, the halakhic authority bases her or his ruling \u201con the language of the Oral Torah norms that are attested in the\u00a0canonical Tannaitic<\/em>\u00a0and\u00a0Amoraic<\/em>\u00a0[i.e. HaZa\u201dL] writings.\u201d\u00a0 I generally share my teacher\u2019s philosophy in this regard, though we not infrequently disagree on the details of the norms that are attested in the rabbinic canon.\u00a0 In this case, Rabbi Yuter bases his conclusion on his understanding of Mishnah in Rosh Hashanah 3:7:<\/p>\n

\n

\u05d4\u05ea\u05d5\u05e7\u05e2 \u05dc\u05ea\u05d5\u05da \u05d4\u05d1\u05d5\u05e8 \u05d0\u05d5 \u05dc\u05ea\u05d5\u05da \u05d4\u05d3\u05d5\u05ea \u05d0\u05d5 \u05dc\u05ea\u05d5\u05da \u05d4\u05e4\u05d9\u05d8\u05dd \u05d0\u05dd \u05e7\u05d5\u05dc \u05e9\u05d5\u05e4\u05e8 \u05e9\u05de\u05e2 \u05d9\u05e6\u05d0 \u05d5\u05d0\u05dd \u05e7\u05d5\u05dc \u05d4\u05d1\u05e8\u05d4 \u05e9\u05de\u05e2 \u05dc\u05d0 \u05d9\u05e6\u05d0<\/p>\n

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<\/em>, he did not fulfill his duty.<\/p><\/blockquote>\n

Rabbi Yuter endorses Rabbi Sh\u2019lomo Zalman Auerbach\u2019s understanding that \u201cone must hear the actual sound\u00a0of<\/em>\u00a0the\u00a0shofar <\/em>\u2026 even\u00a0<\/em>if the reproduced sound is both quantitively and qualitatively\u00a0identical<\/em>\u00a0to the original shofar sound.\u201d\u00a0 While this is a reasonable conclusion based on this Mishnah, I would suggest that this conclusion is far from certain.\u00a0 Further, I would argue that even if that conclusion were certain, one could still reach an different conclusion based on the principle of hora\u2019at sha\u2019ah<\/em>, emergency legislation, a topic on which Rabbi Yuter published a learned article in 2001<\/a>.<\/p>\n

Understanding the Mishnah\u2019s ruling turns on the understanding of the term havarah<\/em>.\u00a0 Rabbi Yuter understands the term to mean any form of reproduced sound, including an echo.\u00a0 Indeed, a number of translators render the term as \u201cecho\u201d (see e.g. Soncino Talmud).\u00a0 However, Marcus Danby renders the term \u201cuncertain noise.\u201d\u00a0 Similarly, Jastrow translates the term havarah <\/em>as \u201cconfused sound,\u201d in contrast to a sound that is in tune, though in reference to our mishnah he renders the term \u201cindistinct sound (echo, opp. \u05e7\u05d5\u05dc \u05e9\u05d5\u05e4\u05e8 [the sound of the shofar]<\/em>)\u201d.\u00a0 It is thus unclear whether the term havarah<\/em> 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.\u00a0 [AUTHOR’S NOTE ADDED 3\/2\/21 – Rabbi Linzer<\/a> 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.<\/em>] 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\u2019s voice over the internet or copper-wire telephone is rendered halakhically invalid by the ruling in Rosh Hashanah 3:7.\u00a0 Legal positivism requires that we apply HaZa\u201dL\u2019s 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.\u00a0 It is hard to argue with certainty that HaZa\u201dL\u2019s ruling regarding an echo applies to a paradigm that simply did not exist during HaZa\u201dL\u2019s time.\u00a0 HaZa”L issued a rule regarding echoes and not about 0s and 1s travelling over the internet or electric signals travelling over copper wire.\u00a0 Rosh Hashanah 3:7 does not rule that hearing reproduced sound is invalid, but, rather, that hearing havarah<\/em> is invalid.\u00a0 While understanding havarah<\/em> to mean \u201creproduced sound\u201d is reasonable, it is far from an inevitable conclusion.<\/p>\n

 <\/p>\n

IF A LEGAL POSITIVIST BELIEVES ROSH HASHANAH 3:7 INVALIDATES HEARING MEGILLAH TELEPHONICALLY, CAN S\/HE STILL RULE LENIENTLY?<\/h1>\n

Safek (Ambiguity) and Relying on a Colleague\u2019s Opinions<\/h2>\n

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.\u00a0 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]<\/a> and therefore rule that one who hears Megillah telephonically thereby fulfills her or his obligation.\u00a0 Rambam states at Mamrim 1:5 that in the case of a disputed law:<\/p>\n

\n

\u05d0\u05dd \u05d0\u05d9\u05e0\u05da \u05d9\u05d5\u05d3\u05e2 \u05dc\u05d4\u05d9\u05db\u05df \u05d4\u05d3\u05d9\u05df \u05e0\u05d5\u05d8\u05d4, \u05d1\u05e9\u05dc \u05ea\u05d5\u05e8\u05d4 \u05d4\u05dc\u05da \u05d0\u05d7\u05e8 \u05d4\u05de\u05d7\u05de\u05d9\u05e8 \u05d1\u05e9\u05dc \u05e1\u05d5\u05e4\u05e8\u05d9\u05dd \u05d4\u05dc\u05da \u05d0\u05d7\u05e8 \u05d4\u05de\u05d9\u05e7\u05dc.<\/p>\n

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.<\/p>\n<\/blockquote>\n

Application of this rule turns on what it means for one to \u201cknow in which direction the law inclines.\u201d\u00a0 How certain one must be of one\u2019s personal conclusion before one defers to this principal of adjudication is subject to interpretation.\u00a0 In private email conversations, Rabbi Yuter has argued that since HaZa\u201dL\u2019s 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.\u00a0 However, it seems to me that since there is a lack of clarity as to whether HaZa\u201dL established a rule on this issue, one can, indeed, resolve that ambiguity toward leniency when analyzing a matter of rabbinic law.<\/p>\n

Another potential ground for leniency (which might also apply to Torah law) would be the ability to rely on contrary opinions in pressing times.\u00a0 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]<\/a>\u00a0 Although this reflects the minority opinion of Rabbi Shimon in the Talmud, which generally has no legal authority, Rabbi Yehoshua b. Levi states that \u201c\u05db\u05d3\u05d0\u05d9 \u05d4\u05d5\u05d0 \u05e8\u05d1\u05d9 \u05e9\u05de\u05e2\u05d5\u05df \u05dc\u05e1\u05de\u05d5\u05da \u05e2\u05dc\u05d9\u05d5 \u05d1\u05e9\u05e2\u05ea \u05d4\u05d3\u05d7\u05e7 Rabbi Shimon is fitting to rely on his opinion in pressing circumstances\u201d (BT Berakhot 9a).\u00a0 If in pressing circumstances one may rely on an opinion which HaZa\u201dL rejected, it follows a fortiori<\/em> a rabbi should be able to rely on his colleagues\u2019 reasonable opinion in pressing circumstances.[3]<\/a>\u00a0 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.\u00a0 Rabbis Linzer and Feinstein are certainly fitting rabbis to rely upon in pressing moments.\u00a0 However, note that I do not presume that this pressing moment in fact calls for a lenient ruling regarding hearing the Megillah telephonically.\u00a0 As discussed below in the section regarding hora\u2019at sha\u2019ah<\/em> (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.<\/p>\n

 <\/p>\n

Hora\u2019at Sha\u2019ah \u2013 Emergency Legislation<\/h2>\n

Rabbi Yuter\u2019s approach to halakhic decision making (with which I largely agree) is strongly constrained by the content of HaZa”L\u2019s rulings.\u00a0 Thus, for the most part, if HaZa\u201dL 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\u201dL could have imagined. On the other hand, if HaZa\u201dL 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\u201dL could not have imagined the concept of recorded sound, let alone livestreamed sound, because there would be no legislation \u201con the books\u201d to invalidate such a medium.[4]<\/a>\u00a0 However, Rabbi Yuter tempers the rigidity of his approach by emphasizing the individual rabbi\u2019s authority for hora\u2019at sha\u2019ah<\/em>, emergency legislation.\u00a0 Rabbi Yuter discusses the nature of hora\u2019at sha\u2019ah <\/em>\u00a0in his 2001 article in Jewish Political Studies Review<\/a>.\u00a0 Rabbi Yuter explains:<\/p>\n

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<\/em>\u00a0Jewish life, Jewish law also provides for its own temporary suspension in order to preserve\u00a0collective<\/em>\u00a0Jewish life. Tsebi Hirsch Chayes\u2019 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\u2019at sha\u2019ah<\/em> 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]<\/a><\/p><\/blockquote>\n

Thus, if indeed HaZa\u201dL 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\u2019s judgment, the application of such a rule would create a serious threat to the Jewish community or to observance of halakhah.\u00a0 On the other hand, if in fact HaZa\u201dL 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\u2019s judgment, the absence of such a rule would create a serious threat to the Jewish community or to observance of halakhah.\u00a0 Of course, this jurisdiction ought to be exercised carefully and sparingly.<\/p>\n

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.\u00a0 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.\u00a0 A short list of arguments for and against hora\u2019at sha\u2019ah <\/em>follows.\u00a0 Some arguments apply to the context of a particular emergency only, while some might apply more broadly.\u00a0 Some of the arguments are purposely in direct conflict with other arguments to demonstrate why different rabbis might come to different conclusions.<\/p>\n

 <\/p>\n

Arguments in favor of hora\u2019at sha\u2019ah<\/em> to suspend the requirement of directly hearing the Megillah (or other commandments requiring hearing):<\/strong><\/p>\n