Monthly Archives: October 2017

by Rabbi Aryeh Klapper

Dear Rabbi:

Mr. Toviah Goodman has davened 1st day Rosh Hashannah Shacharit and Yom Kippur Neilah for our shul since its founding in 1993.  However, he suffered several health setbacks this year, and now is in a wheelchair full time.  Should he continue to serve as shaliach tzibbur, or should we replace him with someone who is able to stand?

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

 

To the Members of the Ritual Committee, Congregation Mevakshei Psak:

PART 5 – CONCLUSIONS

The halakhic tradition is unequivocal that disability, even a disability that would disqualify a priest from serving in the Temple, is from a purely halakhic perspective fundamentally irrelevant to serving as a shaliach tzibbur.  The simplest proof of this is the universal agreement that a blind man can serve as shaliach tzibbur (so long as one adopts the consensus position that blind people are fully obligated in mitzvot).

One might raise nonetheless raise the technical objection that a shaliach tzibbur in a wheelchair cannot stand.  However, there is no question that such a person is obligated to pray in a private capacity, and would be able to fulfill that obligation while seated in his wheelchair.  There is no evidence that a shaliach tzibbur is more obligated to stand than an individual.  It follows that inability to stand is not a fundamental bar to being a shaliach tzibbur.

One might nonetheless raise the concern that people who are able to stand will mistakenly learn that standing during prayer is unnecessary.  This concern is found in Sefer Chasidim, and cited by some contemporary halakhists.  However, it seems to me that the case in Sefer Chasidim is explicitly one of someone who had no externally obvious disability, but merely lacked strength, and therefore sat on occasion in an ordinary chair.  A casual observer might therefore conclude that he was choosing to sit, and imitate his behavior.  By contrast, a person sitting in a wheelchair is presumably not doing so by choice, and there is no concern that members of the congregation will mistakenly learn from him that they too may sit.

There is accordingly no question that a person in a wheelchair may serve as a shaliach tzibbur, and that the tzibbur led by such a person fulfills all their halakhic obligations.

What remains is the question of whether, all other things being equal, selecting such a shaliach tzibbur is equal, preferable, or less desirable than selecting a person who is able to stand.

Chavot Yair cites kabbalistic reasons for preferring a non-disabled chazan.  I am not competent to evaluate these arguments directly.  But I am comfortable saying that they carry an implication that disturbs me.  So far as I can see, they relate to the nature of the prayer itself, rather than to the quality of representation.  As such, they suggest that a physical disability inherently damages the quality of a person’s prayer.  This is directly against the position of Maharam and Maharshal.  Chavot Yair cites no precedents for applying his arguments in a halakhic context.   One therefore need not be choshesh for them in our case against Maharam and Maharshal.

Chavot Yair further claims that there is a lack of kavod hamitzvah in appointing such a shaliach tzibbur.  Even those who are not kabbalists, he says, should recognize that this is parallel to Malachi’s criticism of the Jews for bringing lame animals as sacrifices.  If such animals were brought as gifts to an overlord, they would generate disfavor rather than favor: why should we expect G-d to act differently?

Maharam explained why – “The dignity of G-d is not like the dignity of flesh and blood”.  But the truth is, Chavot Yair himself explained that it is the tefillah that is the sacrifice, not the mitpallel (pray-er).  Otherwise, one would be devaluating the individual prayers of the disabled.

It is possible that Chavot Yair is not referring to G-d’s reaction, but rather to that of the community: they will perceive themselves as offering G-d the moral equivalent of blemished animals, and they will therefore devalue their own mitzvot.  One might also suggest, as a supplement to Chavot Yair, that there is an issue of kavod hatzibbur in appointing such a shaliach tzibbur, meaning that other communities will see this community as devaluing itself.

I suggest that even if this is halakhically significant in cases where Torah is otherwise neutral, it is not true where Torah is morally committed to opposing and altering the public perception.  In this case, it seems to me that Maharam and Maharshal understood Torah to have such a commitment, while Chavot Yair did not.  On that analysis, I would be comfortable following Maharam and Maharshal.

The problem is that Maharam’s position itself challenges contemporary sensibility regarding disability.  Our social ideal is for men in wheelchairs to become shluchei tzibbur, or not, at the same rate as men on feet, and for the same reasons.  We do not wish to regard disabled men as broken vessels, or for disabled men to relate to themselves as broken.

The reciprocal problem is that contemporary sensibility is also prima facie incompatible with the ban on kohanim with certain disabilities or blemishes serving in the Temple, and that ban is explicit in the Torah.

This difficulty can be raised against Maharam as well.  As the Zohar points out, G-d bans such physically “broken vessels” from serving in the Temple, and therefore our midrash cannot be understood literally.  Rather, it must refer to those with broken spirits or hearts.

Furthermore, Maharam in his teshuvah refers to the disabled man as one who “has been affected by G-d’s attribute of justice”, and it seems reasonable that the reason G-d’s dignity is enhanced by the service of such men is that they remain attached to Him, rather than embittered against Him, despite having been punished.  This too is difficult to square with contemporary sensibility.

Some have tried to resolve this conundrum by framing what I am calling “contemporary sensibility” in terms of the halakhic category of kavod haberiyot, human dignity.  In other words, they seek to give our sensibility formal halakhic weight, and then to discuss our question in formal halakhic terms.

I prefer to avoid categorizing eligibility or ineligibility for public ritual roles as inherently an issue of kavod haberiyot.  It seems to me that halakhah generally understands kavod haberiyot as a function of habit and reasonable expectations based on experience.  Thus a zaken may refrain from returning a lost object if picking it up is beneath his dignity, even if a non-zaken would be obligated.  Similarly, people can receive private tzedakah to maintain their public standard of living, even if that standard is beyond their current means, and likely even if it is beyond the means of some of those donating.

I also find it deeply problematic to define kavod haberiyot halakhically in ways that conflict with incontrovertible halakhic precedents, let alone explicit Biblical categories.

However, it is very likely an issue of kavod haberiyot to deprive people who have been accustomed to lead services of the ability to do so when they become disabled.  This is the basis for Mas’eit Binyamin’s remarkably emotional teshuvah about aliyot for the blind, and for contemporary discussions of whether men with colostomy bags can receive aliyot.

In our case, Mr. Goodman has become accustomed to playing this role, and so our case is comparable to standard precedents regarding kavod haberiyot.  Accordingly, one can add kavod haberiyot to the grounds for permitting him to continue his role without understanding it as a universal levelling principle.

But we must be clear that it is an additional reason rather than a necessary reason.  The fundamental halakhah remains that being in a wheelchair does not disqualify one from serving as a shaliach tzibbur.  What we have failed to resolve is whether, all other things being equal, it is preferable to choose someone in a wheelchair, following Maharam, or preferable not to, following Chavot Yair.  In the absence of such a resolution, the halakhah in fact if accidentally should track the contemporary sensibility and treat being in a wheelchair as halakhically irrelevant.

We have also failed to resolve the underlying question of the relationship between contemporary sensibility and halakhic precedent, and we have left numerous approaches unexplored.  One might for example argue that in a fundamentally egalitarian society, equal treatment becomes a function of habit and a reasonable expectation.  One might argue that the capacity to represent the community ritually has different significances in different societies.  One might seek to embed principles of equal treatment in halakhic or hashkafic categories other than kavod haberiyot.  One might argue that the weight of halakhic precedent should compel us to position ourselves as countercultural, whether in Maharam’s way or in Chavot Yair’s.  However, none of these arguments are necessary to resolve our case, and so this teshuvah is not the proper place to evaluate them.

by Rabbi Aryeh Klapper

(Note:  A seminar is a class discussion with rigorous and formal canons of discussion, often including a requirement that opinions be backed by specific textual evidence. In today’s class, every student is required to make at least one substantive contribution to receive a passing grade.)

Teacher: Today’s seminar will begin from a very brief opening thesis/dvar Torah by Gittel.

Gittel: Hashem wanted people to be good, but they were bad and getting worse.  Hashem warned them that bad things would happen, but they didn’t listen.  Finally He destroyed the world in a flood, leaving only Noach and his family alive.

We should learn from this that we really need to be good, and that we should believe people when they say that Hashem will destroy the world if we’re not good.

Rivky:  But didn’t Hashem promise that He would never bring another Flood?  I think the lesson is that if people tell us that Hashem will destroy the world if we’re not good, we shouldn’t listen to them: Hashem did that once and he won’t do it again.

Elimelekh:  Just because He promised not to bring a flood, doesn’t mean he isn’t going to destroy the world some other way.  “G-d gave Noah the rainbow sign/no more water, it’s the fire next time.”  And in fact, when Sodom gets as evil as the Flood generation, Hashem rains fire on them.

Yaakov:  That’s cheating!  What’s the point of His promise then?

Rivky:  Anyway, people are always telling us that the world’s going to end soon.  We can’t believe all of them, so how do we choose?  I think we shouldn’t believe any of them.

Gittel: We should listen to prophets.

Rivky: But there are no prophets nowadays!  I know that Chazal said that “Prophecy was taken from the wise and given to the insane and children” – is that whom you want us to listen to?

Yaakov: We have people with ruach hakodesh; we should listen to them.

Elimelekh: People with ruach hakodesh can still make really bad mistakes, and anyway we really don’t know who has it or what it means.

Shlomo:  Maybe it means that we should listen to scientists.  I think a lot of them are telling us that the world will become uninhabitable if we don’t stop global warming.

Yaakov:  But stopping global warming isn’t about morality and avodas Hashem!  It’s about reducing our carbon footprint.

Rivky: And anyway, He promised.

Shlomo: Maybe there’s a connection.  Maybe a society would only go on doing things that could kill our whole species if it had completely lost control of its appetites, and so it must be a really evil society.

Yael: But we’re not really one society in the world, so how could Hashem judge us all together?

Elimelekh:  Why should we believe that what scientists tell us is true?  Doesn’t science keep changing?

Rivky: I think that’s cheating.  We assume that science is true in every other class in this school.

Yaakov:  So let’s stop doing that in the other classes too.

Elimelekh:  Are we really living in a society that might be so evil that G-d would destroy us, at least if He hadn’t promised not to?  Didn’t Rav Moshe Feinstein say that America is a “government of chesed”?

Yaakov: Rav Moshe was niftar many years ago, and things have gotten much worse.  One of my rebbeim said that the generation of the Flood was punished because hishchis kol basar es darko al haaretz, meaning rampant sexual confusion – isn’t that happening in America today?

Gittel: Chazal also said that Hashem spares any society that is interpersonally good, even if they’re terrible at bein adam laMakom.  I think at least America qualifies.

Yaakov: I think Hashem does judge the whole world together, as one society, for these purposes.  There’s something powerful in the idea that we and our worst enemies are all one moral ecosystem from Hashem’s perspective.

Batsheva: Why are you so confident that America is a good society interpersonally?  Almost everything I read is about African-American being killed by police, women (and men) being sexually assaulted, and enormous gaps between the rich and the poor.  It may be true that we profess excellent values, but we don’t live up to them.

Elimelekh: I think you need to keep America’s faults in perspective.  Despite everything, almost everyone in the world realizes that they would prefer to live here if they made a purely rational decision.

Batsheva: Yes, but maybe that’s just because we’re so rich.  If we were a poor country, would people feel the same way?

Shlomo:  You’re assuming that virtue and success are unrelated.  Maybe we’re so rich because we’re so good.

Gittel:  Doesn’t Kohelet tell us that virtue and success are unrelated?

Shlomo: I didn’t mean that Hashem rewards us.  I meant that our society gives people the freedom to be creative and the ambition to live well, and that’s a recipe for national wealth.

Batsheva: Part of the message of Kohelet is that it often takes a long time for the economic effects of virtue or vice to wear off.  We might be rich because our grandparents constructed a virtuous society, even though our society is totally corrupt.

Yaakov:  Maybe Hashem judges individuals “ba’asher hu sham”, as they are now, but judges societies on the basis of their potential.  He only brought the flood when there was no hope that anything worthwhile would ever emerge from that society.  Does America still have the potential for moral greatness?

Gittel: I think it would be enough for Hashem if the Jewish people were virtuous or had the potential for moral greatness.  But I don’t see us being better or worse than anyone else.

Yael:  It’s very hard to compare societies.  But I find it difficult to believe that the world today is worse morally than it was in the 1940s, or in the nineteenth century.  So I really don’t think it makes sense to say that we’re under threat of G-d destroying the world today.

Elimelekh: The whole North Korea situation has really scared me, and I’ve read a lot about the Cold War, when many people thought nuclear war was inevitable.  Maybe we’re always under threat of G-d destroying the world:

Shlomo: But why should we be?  If we’re better than the worst ever, there shouldn’t be a threat.

Rivky: Rambam says that every Jew should imagine every year that the whole world’s survival depends on whether their next choice is for good or evil.  Maybe the possibility of the world being destroyed tomorrow is necessary to make us take our free will seriously.

Teacher: So, last round.  What’s your one sentence takeaway from Parshat Noach?

Batsheva: Societies should always consider whether they are badly overestimating themselves.

Elimelekh: Existence is always fragile.  We survive only while Hashem Wills us to.

Gittel: There really isn’t any excuse for being evil if you believe in Hashem.

Rivky: We should act as if the world depends on us, but really G-d will be merciful anyway.

Shlomo: Human beings and animals have the same end, but if we’re good, maybe Hashem will know our names.

Yaakov: The world is an ark, and we are all on it together, whether we like it or not.

Yael: Humanity is too diverse and complex for Hashem ever to find us completely valueless.

Teacher: Thank you very much for your serious participation.  I think this was a powerful discussion: I learned a lot about the parshah, and about you.  I hope you’ll share this discussion with your parents and your shuls.  Shabbat shalom!

(Please note: This dialogue is a work of fiction.  No actual students were stimulated to think in the course of its preparation, but I would be encouraged if it resembled actual classrooms. Do you agree?)

by Rabbi Aryeh Klapper

Dear Rabbi:

Mr. Toviah Goodman has davened 1st day Rosh Hashannah Shacharit and Yom Kippur Neilah for our shul since its founding in 1993.  However, he suffered several health setbacks this year, and now is in a wheelchair full time.  Should he continue to serve as shaliach tzibbur, or should we replace him with someone who is able to stand?

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

ANSWER PART 4

We can sum up our pre-20th century precedents as follows:

Maharam and Maharshal prefer blemished shluchei tzibbur.

Mahari Brona and Chavot Yair prefer shluchei tzibbur who are unblemished and physically whole.

Sefer Chassidim is indifferent to the question of blemishes.  However, Sefer Chasidim sees disability as an issue if it prevents a shaliach tzibbur from fulfilling the prayer obligation in the manner incumbent upon, or perhaps even preferential for, people without disabilities, lest they learn from him.

In the 20th century, the question of a shaliach tzibbur in a wheelchair was addressed, whether analytically, by reporting anecdotes, or by reporting responses they received, by

1. Rabbi Ezra Batzri in Techumin vol. 4
2. Rabbi Shmuel Toledano in Tzohar vol. 3 (5758), and again in Tzohar vol. 10
3. Rabbi Yitzchak Zilberstein in Chashukei Chemed to Berakhot 30a
4. Rabbi Hillel Herzl Yitzchak in Beit Hillel 35 (5768)
5. Rabbi Yitzchak Isaac Leibes in Responsa Beit Avi OC3:38
6. Rabbi Pinchas Toledano in Responsa Brit Shalom 3:7
7. Rabbi Mordekhai Tzvi HaLevi Tziyyon in שו”ת השואל #8

1. R. Batzri concludes forcefully that there is no halakhic issue so long as the community does not object, and the community ought not to object.

2. R. Shmuel Toledano in Tzohar vol. 3 (5758) concludes that there is no issue ad hoc or when the person has a chiyuv.  For Yamim Noraim, the same is true if it is clear that the congregation forgives its dignity in this regard.  (However, he discourages appointing an amputee lekhatchilah for the Yamim Noraim or regularly).

He reports that R. Wozner, author of Responsa Shevet Levi, told him that a chazan who cannot stand can be appointed for the Yamim Noraim if he is best for the tzibbur’s kavvanah, and that he might remember R. Meir Shapiro, founder of Yeshivat Chakhmei Lublin, sitting while being shaliach tzibbur for the Yamim Noraim.

In Tzohar vol. 10, R. Toledano revisits the issue and provides more fascinating anecdotes:  

a) Rabbi Moshe Shaul Klein reported that the Imrei Chayyim (Gerrer Rebbe) served as shaliach tzibbur on the Yamim Noraim while seated.

b) R. Chaim Kanievski distinguishes between ad hoc and regular service.  The logic seems to be that the shaliach tzibbur standing is a matter of the dignity of the congregation, and the congregations is permitted to forgive its dignity only on an ad hoc basis.

3. R. Zilberstein reports that R. Elyashiv preferred a shalaich tzibbur who could stand even if that meant a decline in piety or vocal ability.  He assumes that the shaliach tzibbur standing is not only an issue of the dignity of the congregation, but a fundamental requirement of prayer.

4. In Beit Hillel 35 (5768), Rabbi Hillel Herzl Yitzchak notes that one might argue that when the Chazan is using a wheelchair, everyone will know that he is unable to stand, and there is no risk that people will learn from him to sit.  This would remove the proof from Sefer Chassidim.  He nonetheless adopts the positions of Rabbis Elyashiv and Kanievski.

5. R. Leibes argued that in America, where in his perception standards had slipped, it is particularly important that the shaliach tzibbur stand.  He also finds Chavot Yair’s arguments compelling. Unfortunately, the specific question he is responding to is elided on Hebrewbooks.org.  It seems that he believed that a shliach tzibbur who cannot stand should not be allowed to serve on the Yamim Noraim, even if he has already been appointed and will have to be bought off financially.

6. R. Pinchas Toledano in Responsa Brit Shalom 3:7, assumes the issue is purely one of the dignity of the congregation, and concludes that a chazan whom the community desires can therefore serve, as the community may forgive its honor.

7. R. Tziyyon in Responsa HaShoeil #8 cites a wealth of contemporary poskim, of varying stature, as follows:

a) R. Aviner strongly supported Maharam.

b) R. Nebenzahl also ruled that there was no basis for objecting.

c) The book Tefilah Kehilkhatah rules like Maharam in principle.  However, for the Yamim Noraim it prefers to follow Chavot Yair. However, if there would be a loss of human dignity in excluding someone from serving as shaliach tzibbur, he goes back to Maharam.

d) R. Shammai Gross (following Magen Avrohom) thought that one should not follow Maharam lekhatchilah

e) R. Elchanan Prince distinguishes between ad hoc and fixed appointment

f) R. Eliyahu Schlesinger was opposed

g) R. Herschel Schachter reports that Rav S.Z. Auerbach ruled the same way as R. Zilberstein’s report of R. Elyashiv, and thus Rav Shimon Schwab ceased being shaliach tzibbur for Neilah in Breuer’s

h) R. Tziyyon cites Rav Ovadiah Yosef as opposed.  (However, I think this report is an error, and Rav Ovadiah was referring only to a shaliach tzibbur for keriat haTorah.)

i) R. Tziyyon cites the newsletter Vayishma Moshe, however, as reporting some of these same poskim very differently.  For example, it cites Rav S. Z. Auerbach as saying that there is no issue if the community is agreeable, whereas Rav Schachter’s report indicated a substantive opposition.  It also quotes R. Chaim Wozner, son of the author of Shevet Levi, as saying that he could not imagine any Jew raising the issue against someone who wished to be shaliach tzibbur for a yahrtzeit.

Where does all this leave us?  

Major contemporary poskim apparently reach conclusions ranging from unqualified paskening like Maharam to a hard lekhatchilah preference for chazanim who can stand, even if they are less pious or musical.  However, none of them has given the issue a sustained treatment in print, and the secondhand or anecdotal reports are often contradictory even regarding the same posek.  

From my perspective, the two figures here whose opinions might significantly change the landscape of psak are R. S. Z. Auerbach and R. Yosef.  However, the former’s opinion is reported in contradictory ways, and the report of the latter I think reflects a misunderstanding.  So there is no controlling contemporary authority.

One option is to say that there is no real basis for adjudication here.  Once all the formal arguments have been made, and all positions have survived relatively and roughly equally intact, the issue can and should be left to the lay community to decide.  They may choose to ask a halakhic authority to decide for them anyway, either because leaving it to the congregation would likely lead to intracommunal dissension, or because they resonate with that halakhic authority’s religious intuition.  But that is their choice, and the decision would not be made on what Modern Orthodoxy generally recognizes as formal halakhic grounds.

A second approach is to evaluate the textual evidence ourselves, without regard to the weight of previous authorities.  But in this case, we have already concluded that there is essentially no primary textual evidence.     

A third approach is to frame the issue in terms of broader halakhic issues and values.  For example, three kinds of dignity, or kavod, are mentioned in the responses above.

1. Kavod hamitzvah – the dignity of the commandment.  
2. Kavod hatzibbur – the dignity of the congregation
3. Kavod haberiyot – the dignity of the individual human being

Key questions include:

Is there a halakhic hierarchy among these types of kavod?  How do we evaluate their strength, and relative strength, regarding specific issues and cases?  

Modern Orthodoxy often frames itself as strongly committed to the value of “inclusion”.  Is this just another way of saying “kavod haberityot”, or does it have different connotations and implications?  How does “inclusion” play out halakhically?

A related but not identical approach is to frame the issue in terms of the experiences of the people involved.  For example: Maharam prefers a disabled shaliach tzibbur since “G-d’s formal table-service is broken vessels”.  Would disabled people wish to be shluchei tzibbur if that requires them to perceive themselves as “broken vessels”?

Stay tuned next week for the exciting conclusion of Rabbi Klapper’s responsum!

by Rabbi Aryeh Klapper

Dear Rabbi:

Mr. Toviah Goodman has davened 1st day Rosh Hashannah Shacharit and Yom Kippur Neilah for our shul since its founding in 1993.  However, he suffered several health setbacks this year, and now is in a wheelchair full time.  Should he continue to serve as shaliach tzibbur, or should we replace him with someone who is able to stand?

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

TESHUVAH PART 3 – METHODOLOGICAL EXCURSUS

Halakhic data can be arranged synchronically or diachronically. Synchronic means presenting all positions as if they exist at the same time; diachronic means showing how positions originated, were eliminated, developed or changed over time.

A certain element of diachronicity is ineluctable in current Orthodox halakhah. We have a structure of authority that is popularly understood to give more authority to a precedent the further back it goes. This is not quite true; what is generally true is that halakhah gives more formal authority to texts from an earlier era than texts from a later era. Roughly speaking, there are four eras: Tannaim, Amoraim, Rishonim, and Acharonim.

Halakhah actually has a counter-principle known as halakhah k’batrai, meaning that the law follows the latest authority within every era in a dispute. However, this principle does not seem to operate well in the era of the Rishonim, which from a halakhic perspective ended more with a whimper than a bang. The extent to which it will operate regarding the period of the Acharonim is in question; we’d first have to settle whether that era has ended.

All these principles functioned on the presumption that the halakhic world could reasonably be understood as revolving on a single axis. Thus we speak of “the Rishonim” and “Acharonim” as if the cultural progression of medieval Judaism in Yemen and France were perfectly coordinated. Of course, this was not the case. But each culture could imagine that it was. When cultures met, either one attained dominance, or they negotiated a rough compromise, so that the presumption could be plausibly maintained.

Why should legal authority be affected by who comes first? The notion of descending authority, in Hebrew yeridat hadorot (which Rabbi Norman Lamm brilliantly termed “the degeneration theory”), is rooted in the sense that Torah still emerges out of the experience of Sinai, which grows more and more attenuated over time. The notion of ascending authority uses the imagery of nanas al gabei anak, the dwarf standing on a giant’s shoulders. Since we believe in the possibility of Redemption, progress must be possible. How can progress be possible, if we are moving further away from Sinai? The answer is that our contributions never start from scratch; we build on the advances of our greater predecessors

Standing on the intellectual shoulders of our predecessors requires us to be aware of their work. Here is where modernity and what we might call the “Standard Model of Halakhah” can come into conflict. A combination of astounding wealth and the growth of information technology means that the contemporary talmid chakham has access to a broad array of past texts and halakhic cultures that did not make it into earlier cuts of the tradition, or at least of his or her tradition.

Moreover, it is much easier than before to make a convincing argument that a later source was unaware of an earlier source, or had access only to corrupted versions of that source.

Why does this matter?

Halakhah has a category called toeh bidvar Mishnah, which roughly means that a halakhic ruling can be declared null and void if its author demonstrably was unaware of a relevant precedent that, had he or she known it, would or should have changed the ruling. This demonstration is difficult to accomplish directly; how can you know what you yourself would have thought, let alone what someone else would have thought? So we adopt essentially a “reasonable halakhist” standard, namely that if in our opinion a reasonable halakhist would or should certainly have changed his or her mind, then the ruling can be declared null and void.

Now we have access to much more material of the Rishonim than any of the later Rishonim or early Acharonim did. By the formal rules of halakhah as we understand them today, this means that halakhah k’batrai does not apply; instead, if an acharon decides an issue differently than it was previously decided by a rishon, but was unaware of that rishon’s decision – the acharon’s decision is null and void, and certainly we should pasken like the rishon rather than the acharon.

All this brings us back to our specific question of the shaliach tzibbur who uses a wheelchair.

In the previous two sections of this teshuvah, we studied three strands of the tradition.

The 13th century R. Meir of Rothenburg (Maharam) probably ruled that the disabled are ideal chazzanim. We noted that his responsum exists in at least two versions, only one of which explicitly addresses disability, but thought that the version which does so is likely correct. This version, printed and heartily endorsed by Maharshal in the 16th century, is the one cited by all subsequent authorities.

The 15th century R. Israel (Mahari) of Brona conceded that there was no halakhah barring a disabled shaliach tzibbur. He nonetheless opposes appointing a disabled man as the official shaliach tzibbur, rather than to lead services ad hoc, and, all things being equal, would rather have services led by a man who has none of the physical conditions or characteristics that disqualify a kohen from serving at sacrifices in the Temple. He cites as precedent the 13th century Or Zarua, without a specific source; we were not convinced that Or Zatua took any relevant position.

R. Israel seems wholly unaware of Maharam. We can plausibly conjecture that he would have changed his mind had he known of Maharam. So on a halakhic level, we are entitled to rule like Maharam even though a later rishon ruled otherwise.

It is also true that Maharshal was unaware of Mahari Brona. However, he would likely have made the same calculation we did, and thus discount him.

The 17th century Chavot Yair agrees with Mahari Brona that there is no halakhic issue, and furthermore rejects any analogy to the Temple service. He comes up with a host of independent reasons, however, for reaching Mahari Brona’s conclusion.

Chavot Yair makes a reference to a prooftext cited by Maharam, and soundly rejects its relevance, but he nowhere indicates awareness that Maharam’s authority was relevant to the issue. Can we presume that he was unaware of Maharam’s ruling, and that he would have changed his mind had he been aware of it? It seems to me at least as likely that he would have developed a compromise similar to that of Mahari Brona.

In the 20th century, Rabbi Yitzchak Zilberstein (Chashukei Chemed to Berakhot 39a) casually introduced an early 13th century (pre-Maharam) source that had either been overlooked or been unavailable to all previous decisors. Sefer Chasidim (Margoliot edition) #5756 reads as follows:

אחד זקן היה רגיל להתפלל ביום הכפורים

שנה אחת לא היה חזק לעמוד (ולהתפלל בעמידה)

אמרו מקצתם

כיון שאין לנו כיוצא בו מוטב להתפלל בישיבה,

אמרו הזקנים

כיון שאינו יכול לעמוד – יתפלל אחר אף על פי שאינו כל כך הגון

פן ילמדו ממנו אחרים ויתפללו מיושב,

ואשר כתוב (ש”ב ז’ י”ח) וישב (דוד) לפני ה’ –

ישב לבו בתפלה

ואמרו במכילתין ויקחו אבן וישימו תחתיו וישב עליה (שמות י”ז י”ב) –

ויקחו אבן אלו האבות

וישימו תחתיו אלו מעשה האבות

וישב עליה אלו מעשה האמהות

הרי לא ישב ממש.

An elderly man regularly served as shaliach tzibbur on Yom haKippurim

One year, he was not strong enough to stand (throughout the prayer)

Some of the (?congregants?) said:

Since we have no one equal to him, it is best that he lead services while seated.

The elders said:

Since he cannot stand – let another lead, even though he is not as appropriate

lest others learn from him to pray while seated

As for 2 Samuel 17:12, He yashav=sat before Hashem –

Translate instead he yashav-settled his heart in prayer.

and Mekhilta to Shemot 17:12 They took a rock and they placed it under him and he sat on it

They took a rock – meaning the forefathers;

they placed it under him – these are the deeds of the forefathers

he sat on it- these are the deeds of the foremothers

so (Moshe) never actually sat.

If one takes Sefer Chasidim as a halakhic source, must we take it as halakhically dispositive? Note that Sefer Chasidim is not addressing the question of the nature of the disabled body; he is concerned with the actual inability to stand. Perhaps Maharam would concede in such a case; we cannot prove otherwise, as Maharam’s case so far as we know involved a chazzan whose disability (an arm injury?) had no effect on any of the ritual of prayer. Very likely Mahari Brona and Chavot Yair would agree that this specific form of disability would pose a formal halakhic difficulty.

This week’s section has treated halakhah as if it were purely a formal game – authority is determined by rules, and whoever has more authority, wins. But that is far from an accurate portrait of halakhah. What about our own intellectual evaluation of the evidence provided in precedents? What about values? Moadim lesimchah and please look for Part 4 next week.