A squatter need not pay rent, provided that the owner has not served him notice and the dwelling is not normally rented out. It is a case of "one gains without loss to another" Shulchan Aruch Choshen Mishpat 364:6, paraphrasedRabbi Shimon bar Kahana walked past a vineyard with Rabbi Lazar and asked him to take a splinter for him from the fence to use as a toothpick. He refused, reasoning that if everyone were to do so, the fence would disappear. Talmud Yerushalmi Damai 3:2,There is a dispute about one who "borrows" without the permission of the owner. One rabbi says that he is a legal borrower; another says that he is a thief. Talmud Bava Batra 88aUnauthorised "borrowing" of an item that cannot be damaged by handling is never considered to be theft. Ritva, Bava Metzia 41aIt is permitted to take a tallit and make the blessing over it... Shulchan Aruch, Orach Chaim 14:4This only applies to occasional [use] when performing a mitzvah. Bach to Tur, Orach Chaim 14:4It is forbidden to steal even the slightest amount. Yet if it is something that no-one is bothered about, it is permitted... But the Yerushalmi forbids this, as an act of piety. Shulchan Aruch Choshen Mishpat 369:1 A version of this article first appeared in the Jewish Chronicle. It is republished here with permission.
In February of last year, at an event in Bucharest attended by Bill Gates of Microsoft, the Romanian president, Mr. Traian Basescu, apparently made an astounding statement. Allegedly, he claimed that software piracy (unauthorised duplication of software, such as Microsoft Office products) helps the younger generation discover computers and that it is an investment in Romania’s friendship with Microsoft! It is unlikely that either Mr. Gates or those software pirates languishing in jail for infringement of copyright were especially sympathetic to Mr. Basescu’s views.
‘Piracy’ of this sort has a long history in Jewish sources. Some 450 years ago Rabbi Meir of Padua published a new version of the Rambam’s halachic work Mishneh Torah. Subsequently, a Venetian nobleman, Marco Antonio Justinian, also published an edition of the Rambam, which his detractors claimed would leave Rabbi Meir with many unsold copies. Rabbi Moshe Isserlis of Cracow (d. 1572) upheld Rabbi Meir’s right to sell his stock before the other edition reached the market; meanwhile, he forbade his followers from buying the Venice printing. In 18th-century Livorno, a dispute arose between the author of an edition of the Mishnah and his printer. After publication, the printer removed the author’s commentary from the plates and reused them! Rabbi Yechezkel Landau of Prague (d. 1793) ruled that the printer must compensate the author for his loss.
Legislating rights and responsibilities towards such non-tangible entities as copyright is complex: these landmark rulings were vital steps in the development of halachic attitudes towards intellectual property. We see application of this is legislation nowadays to the problem of software piracy.
It is tricky to identify early Jewish sources that discuss title to intangibles - one that establishes a legal right to a concept or other kinds of non-monetary commodities, the development of which required the investment of expertise, resources or time. Such a source could be used to derive a Jewish view of software piracy.
The Talmud (Kiddushin 59a) records the case of a hungry pauper who discovers a cake; before he picks it up, however, someone else snatches it. The Rabbis describe the ‘snatcher’ as ‘evil’, since he has exploited the pauper’s efforts; however, he is not a ‘thief’, nor is the case actionable. We see that effort alone (which equates in our study to intellectual property) does not confer title, an idea supported by the maxim, ‘one who quotes a statement in the name of its originator brings redemption to the world,’ (Megillah 15a). Using someone else’s ideas without acknowledgement is not actually a crime, just bad manners.
Another permissive view of intellectual property could be based on the rules governing squatters. If a squatter continues to live in a property that is usually rented, he must pay rent after the landlord has served notice. This is because financial benefit accrued by one person, even if there is only a potential loss to another, is claimable. This has ramifications for software piracy. One argument advanced to justify copying is that if one has no intention of buying the product, the manufacturer incurs no loss. If the software is duplicated exclusively for private use and none of the people who use it (or secondary copies made from it) would have bought it (all highly improbable), there might be room for a lenient ruling.
Others adopt a less accommodating position. Following the law that someone entrusted with a manuscript may not copy even one letter from it without authorisation, Rabbi Moshe Feinstein (d. 1986) prohibits translating book segments without the author’s permission. Accordingly, it would be forbidden to duplicate software without consent. Furthermore, the Talmud asserts that whenever a purchaser breaks the conditions of a contract, compensation is payable; indeed someone who ignores the wishes of the ‘owner’ is termed a ‘thief’. Following this, in a responsum about copying music, Rabbi Z.N. Goldberg (contemporary) notes that even after the sale, the original owner is entitled to retain some aspects of ownership. Halachah would thus recognise a software developer’s right to withhold permission to copy the product, and duplication would qualify as theft. Additionally, Rabbi J.S. Nathanson (d. 1875) asserts that ‘logic’ asserts authors’ halachic rights to their works.
We have examined some ingenious responsa, many of which suggest that halachah forbids software piracy. Of course, Jewish law anyway asserts ‘dina demalchuta dina’ (e.g. Nedarim 28a) – in financial matters, at least, once must defer to the law of the land. As software copyright is certainly regulated by English law, halachah obliges one to adhere to the terms of the purchase agreement.
In conclusion, the rabbi wins the case and he has the right to sell his books first, and the only newly-printed edition of Maimonides that one may purchase is the one published by the rabbi. (Responsa Rama – Isserlis – 10)
The printer has caused the author great loss, for if it were not for this new edition, he would have had many more purchasers. (Responsa Noda BiYehudah – Landau – CM 2:24)
Someone who lives in a courtyard without permission must pay rent, whenever the owner intended to rent the courtyard. (Bava Kama 20a, paraphrased; Shulchan Aruch Choshen Mishpat 364:6)
Just as one may not read a (deposited) manuscript, one may not copy even one letter from it. (Shulchan Aruch Choshen Mishpat 292:20)
It is forbidden to translate laws from my works… Some already asked me permission, which I refused. (Responsa Igrot Moshe – Feinstein – YD 3:91)
Anyone who ignores the wishes of the ‘owner’ is called a ‘thief’… If one gives a pauper a coin to buy a shirt, he may not use the money to buy a cloak, since he ignores the wishes of the donor. (Bava Metzia 78a-b)
When one sells an item, one may retain certain rights over it… A cassette vendor may retain sole rights of duplication… Ignoring this is like theft, for with respect to duplication, the cassette is not his property. (Rabbi Z.N. Goldberg, Techumin 6)
An author’s rights to his works are universally established; to say otherwise is illogical… (Responsa Shoel UMaishiv – Nathanson – 1:1:44)
A version of this article first appeared in the Jewish Chronicle. It is republished here with permission.
Shabbat Internet Commerce
Widespread internet use has transformed the way many businesses operate. It is possible to use the internet to sell clothes, household appliances, books, or almost anything. And as websites are ‘open’ around the clock, this raises new issues for Jewish law: since commerce is forbidden on Shabbat, must one close down one’s internet site on Friday afternoon to prevent purchases being made?
Another related ‘hot’ topic is the issue of on-line auctions. May one bid for an item if the auction will end on Shabbat? What if the system bids automatically on Shabbat (when you are outbid in an on-line auction, such as eBay, but have indicated that you will pay more than the current highest bid by putting in a maximum bid before Shabbat)? The core issue is whether a transaction that takes place with no human involvement on Shabbat, even without one’s knowledge, remains prohibited by the laws of Shabbat.
By way of introduction, many authorities assert that the entire corpus of laws regulating commerce on Shabbat is of rabbinical, rather than Biblical origin. While this means they must be taken very seriously (and observed without compromise), in a case of uncertainty, the final ruling may allow for some flexibility.
Some 200 years ago, Rabbi Akiva Eiger considered the permissibility of selling an object when the money is handed over on Friday but remains the property of the vendor until Shabbat. Even though the acquisition happens automatically on Shabbat, he adopts the stringent position and prohibits this.
This point is qualified by Rabbi Zvi Pesah Frank, who asserts that when the entire process occurs on Shabbat, both the vendor and the purchaser transgress, but when the purchase is started before Shabbat and concludes on Shabbat, only the purchaser transgresses. While the owner of a website might not actually sin by ‘trading’ on Shabbat, he or she may be enticing a potential (Jewish) purchaser to sin!
According to this view, it would be difficult to allow a website to remain open on Shabbat, since any purchase made would result in transfer of title to the goods on Shabbat. However, if the vendor’s website can be designed not to actually process the charge on Shabbat, but instead wait to receive payment until the goods are available and ready for shipping, there may be no halachic problem.
Based on this ruling, Rabbi Yisroel Belsky, senior halakhic authority of the American Orthodox Union, is quoted as prohibiting ‘proxy’ bidding for an item when the internet auction ends on Shabbat. However, his ruling seems to ignore the fact that when the sale ends, all that actually happens is that one becomes legally committed to buying the item; until one pays for it after Shabbat, there is no actual transfer of title. This should remain permitted even according to Rabbi Eiger, since no acquisition actually happens on Shabbat.
Offering a fresh approach, Dayan Yitzhak Weiss considered the permissibility of a Jew trading on Shabbat using a vending machine. As the device is left in a public place and is freely accessible to passersby, it provides an excellent precedent for its ether-equivalent, the e-commerce website. After an extensive discussion of the issues, Dayan Weiss permits the use of vending machines when the following conditions are met:
- The owner of the machine must declare that the proceeds of the sales won’t be acquired until after Shabbat (to avoid the above-mentioned concern of Rabbi Eiger).
- The owner must have in mind that any items purchased on Shabbat are notionally considered to have been acquired by the purchaser before Shabbat commences. In certain circumstances, Jewish law allows the status or ownership of items to be determined in this way, even though the actual selection takes place on Shabbat.
- The vending machine is in a public place, which avoids the appearance that the product has been bought from a Jewish business on Shabbat.
It seems reasonable to apply these conditions to e-commerce websites. The website may be considered to be a ‘public place’, and, as discussed above, the site can be designed to avoid the issue of actual acquisition on Shabbat.
While beyond the scope of this study, modern sources also consider the issue of enticing another Jew to sin and the concern that trading in a technically permissible manner degrades the sanctity of Shabbat. However, while there is indeed room for concern that internet trading interferes with the sanctity of Shabbat, even when no humans are involved, many modern halachists have adopted a lenient stance.
The rabbis forbade many things on Shabbat, some because they resemble Biblically prohibited acts and others because they may lead to committing a Biblically prohibited act. (Rambam, Laws of Shabbat 21:1)
Re: the sale of an item on Friday for money on the condition that it becomes your property the next day, such that the acquisition is concluded on Shabbat. Is it permissible, as no prohibited act takes place on Shabbat since the acquisition happens automatically, or forbidden, as the acquisition is concluded on Shabbat? It is forbidden. (Responsa of Rabbi Akiva Eiger 1:159)
The purchaser transgresses by acquiring title to an item on Shabbat, even if the contract was made on Friday… (Responsa Har Zvi, Oreh Hayyim 1:126)
In conclusion, when one fulfils all the conditions: the machine is not in a Jewish place and located such that no-one can identify the owner and all the preparations are made before Shabbat… there is room to permit its use. (Responsa Minhat Yitzhak 3:34)
A version of this article first appeared in the Jewish Chronicle. It is republished here with permission.
God on your screen
Does Jewish law allow one to erase God’s name from a computer disk or monitor?
When I first encountered this question, I assumed that it was a joke. What if the response were negative? Would one have to bury old computer disks? What if God’s name appears on a computer monitor? Would one then have to avoid deleting it and instead of switching off, hope for a power cut?
In a passage dealing with the requirement to eradicate idolatry from Israel, the Torah urges us to ‘eliminate their name from that place’. (Devarim 12:3). This is followed by the warning, ‘do not do so to the Lord your God’. (ibid. 4) The Talmud and the legal codes understand this to constitute the Biblical prohibition of erasing any of God’s names (Sifri Devarim 61).
This has many applications: most notably the prohibition of destroying a text in which God’s name appears. In religious circles, people avoid writing God’s name in full (at least in its original Hebrew form) so that they can later dispose of the text. And every Jewish community has a ‘genizah’, where items containing God’s name, such as worn-out Mezuzot and Siddurim are stored until they can be buried.
But would Jewish law allow one to erase God’s name when it appears in a readable or audible form, although not actually written or printed? May one, for example, dispose of a tape recording of God’s name, or record something over it? What is the status of text stored digitally: for example, a word-processing document saved on a computer’s hard drive?
This question was first addressed in reference to the forerunner of the gramophone – the phonograph, a device in which a needle detected grooves on a revolving foil or paper sheet, amplifying them into sound. In a landmark responsum, Rabbi Z.P. Frank ruled that the markings on the paper are not actually letters (as they can’t be read or even seen) and so the prohibition of erasing God’s name does not apply to smoothing out the paper. He notes that the great Rabbi Shmuel Salant only prohibited this because he didn’t understand how the phonograph worked!
Rabbi Moshe Feinstein takes a slightly more circumspect approach to tape recordings: in a responsum dated 1963, he acknowledges that there are no real letters and hence no clear prohibition of erasing the tape, yet he feels that it is improper to erase the tape directly. He recommends an indirect approach (presumably recording something over the name of God, rather than merely wiping the tape blank).
While there are more stringent views, it seems that these rulings can also be applied to magnetic storage devices such as computer hard drives, which may be erased irrespective of their content. However, how would halachah address God’s name displayed on a computer monitor, when one can actually read the letters?
In the case of a CRT monitor, electrons are fired at the inside of the screen, forming light patterns that can be seen from the front. They are constantly refreshed, but at a rate that the human eye cannot detect: in reality, therefore, each letter is formed from a series of pixels (dots) each of which only appears on the screen for a moment before being replaced by another. Rabbi S.Z. Auerbach is quoted as ruling that since no complete letter ever actually exists, this does not constitute ‘writing’; it follows that deleting God’s name from this type of screen cannot be prohibited.
More modern TFT LCD monitors operate in a different way: the pixels forming the letters are all lit at once. The RJJS Journal quotes a Rabbi Hecht who was once asked about installed light bulbs that spelled out the name of God, would it be permissible to unplug them? He responded positively: since the lights are constantly ‘rewriting’ God’s name, cutting off the electric supply does not delete the name, but prevents it from being written. This reasoning, together with other principles, will suffice to allow us to delete God’s name from a computer screen, since anyway, the erasure is performed indirectly. What a relief!
Someone with a Divine name written on his skin may not wash nor stand in an unclean place. Should he be obliged to immerse in a mikveh, he should do so normally, as only direct erasing is prohibited. (Shabbat 120b)
But for a non-obligatory purpose, even erasing the name indirectly is prohibited, for there is no greater shame than causing God’s name to be erased. (Noda BeYehudah 2:OC:17)
One who erases one of the God’s holy names transgresses a Biblical prohibition. (Rambam, Yesoday HaTorah 6:1)
With respect to a phonograph: if one smoothes out the wrinkles on the paper so that the impression is lost and one can no longer hear the sounds… there is no issue of erasing God’s name… for in reality, there are no actual letters. Even though Rabbi Shmuel Salant wanted to be stringent, it seems that he wasn’t properly aware of how the device works. (Har Zvi, OC 1:280)
With respect to tape recordings, there is no prohibition of erasing God’s name as there are no real letters. Nonetheless, it is improper and one should try to do it indirectly. (Iggrot Moshe YD 2:142)
Shooting electrons is not considered by the Torah as writing, but storing those letters on the diskette may be considered to transgress the Shabbat prohibition of ‘building’... (Nishmat Avraham, quoting Rabbi S.Z. Auerbach)
A version of this article first appeared in the Jewish Chronicle. It is republished here with permission.
The Israeli media recently reported the story of an observant singer, Eliyahu Faizkov, whose high-pitched singing vocals have been banned from some religious radio stations. Apparently, some listeners had objected, assuming that they were listening to the voice of woman.
The mere suggestion that kol ishah (the prohibition of a man listening to a woman singing) should apply in the modern era is bound to raise hackles. In a society where overt sexual behaviour is common-place, this rule seems anachronistic: laughable perhaps, certainly deeply counter-cultural and to many, disempowering and offensive to women. Yet kol ishah is widely observed in the religious world and actually reflects deep truths about male-female interactions.
The key source is the Talmudic statement by Shemuel noting that a woman’s voice is sexually exciting; this indicates that in principle a man should not listen to a woman singing. Almost all sources understand this dictum to refer only to a woman’s singing voice.
The circumstances in which this rule applies has been debated for centuries. Some suggest that Shemuel’s statement was made only with reference to a man reciting the Shema – i.e. he may not say the Shema within earshot of a woman singing. Other important sources understand that the statement is a general one: a man may not listen for pleasure to a woman singing even when he is not praying or saying the Shema, as this would be considered a forbidden form of stimulation. The Shulhan Arukh (code of Jewish law) clearly rules in favour of the second, more stringent opinion.
There is fierce discussion among later sources about men and women singing together in groups, especially around the Shabbat table. Rabbi Yehiel Yaakov Weinberg notes that the common practice was (and remains) that women refrained from singing Shabbat songs in the presence of guests who were not family members. Yet in nineteenth-century Germany women commonly participated in zemirot (table-songs), relying on the Talmudic principle that ‘two voices singing together cannot be distinguished’. This assumes that kol ishah applies only to a solo voice, although the sources do not extend the leniency beyond the Shabbat table. Rabbi Weinberg, while not entirely happy with this reasoning, allows women to sing holy songs in mixed groups, based on the additional assumption that the religious nature of the music precludes arousal. This view has been contested by a number of subsequent authorities and remains a matter of dispute. The ‘traditional’ practice is the norm in most Charedi societies, whereas the ‘German’ custom is common in Modern Orthodox circles.
Contemporary halachists debate whether the restriction of kol ishah should apply to broadcast and recorded music. Rabbi Yaakov Breisch assumes that the prohibition applies with full force in such circumstances, but Rabbi Eliezer Waldenberg contends that in the case of a radio broadcast or recording, one is not actually hearing the voice, but an electronic reproduction of it. While this may seem a technicality, the qualitative distinction between live and recorded music is undeniable and since one cannot fulfil the Mitzvah of hearing the Megillah over the radio, presumably a broadcast of a woman’s voice cannot constitute kol ishah. He also connects visual and aural stimulation and rules that when the man cannot see the woman, he may listen to a radio broadcast of her voice. Rabbi Yosef agrees with this position, but asserts that the same leniency won’t apply to a television show! For obvious reasons, he also restricts it to a case where the man has no idea what the woman singing looks like.
For the modern reader, the halachic issues are insignificant in comparison with the conceptual difficulties raised by kol ishah. Are men really aroused by women’s voices? Why is there no equivalent prohibition for women, called, say kol ish? Shouldn’t these rules be dependent on societal norms? If so, hardly anyone today considers a woman’s singing voice to be erotic. (Rabbi Yosef and others assert that the fact that we are comfortable with women’s voices does not remove the prohibition of kol ishah).
<o:p></o:p>The Talmud places the onus on men to avoid listening to women’s voices. It may be polite (and it certainly makes life easier) for a woman to avoid singing in the presence of a man, but the burden of obligation falls on the man to avoid situations that compromise his religious life. There is no obligation for a woman to refrain from singing and no expectation that a woman should stifle her need to sing: sometimes, a man will have to make himself scarce. As with other areas of Jewish life, great sensitivity is required to weigh competing interests – in this case, the very real need of women to express themselves through the powerful medium of song, balanced against the law of kol ishah.
Judaism offers a wise approach to understanding male-female interactions. We delude ourselves if we think that men and women are sexually stimulated in the same way: a cursory glance at contemporary advertising and media is sufficient to dispel that myth. Judaism recognises that men are more frequently aroused by visual and other sensory stimuli than women. To redress this quite natural imbalance, Jewish law imposes a number of restrictions on men beyond those also incumbent on women: one of these is kol ishah. Put simply, creating a healthy and respectful Jewish society demands recognition and regulation of various stimuli, tailored to the needs of each gender.
In a desensitised world, kol ishah seems quaint, almost absurd. Yet it enables us to understand just how delicate our level of awareness should be. It is a tragedy that most men today claim to find nothing erotic in a woman’s singing voice, something that is natural and healthy. Observing kol ishah is one way to rekindle lost sensitivities, enabling us in turn to invest more of ourselves in our special relationships.
Shemuel said: the voice of a woman is ervah (sexually exciting), as the verse says: (Song 2:14) for your voice is sweet and your appearance attractive. (Talmud Berakhot 24a)
It is prohibited (for a man) to hear the voice of one forbidden to him. (Shulhan Arukh Ever HaEzer 21:1)
Whenever the song isn’t crude and [the man] doesn’t intend to enjoy [the woman’s] voice… while it is certainly appropriate to be stringent (and avoid listening)… it isn’t a surprising view (to be lenient). (Rabbi Chaim Chizkiyahu Medini, Sedey Hemed, quoting Divrey Hefetz)
When I came to the city of Berlin, I saw men and women singing holy Shabbat songs together in the homes of the very orthodox and I was astonished, for it contradicts an explicit law…. But after some investigation, I discovered that Rabbi Ezriel Hildesheimer, and Rabbi S.R. Hirsch from Frankfurt allowed the singing of holy songs together…. (Rabbi Yehiel Yaakov Weinberg, Seridey Aish 2:8)
….Shemuel’s law is not a general proposition as to the sexually arousing character of a woman’s voice, but rather is a restriction on the recitation of Shema under circumstances where it is not possible to maintain proper concentration. (Rabbi Saul Berman, Kol Isha)
The conclusion (of Rabbi Berman)…. is fundamentally mistaken, resulting from the author’s having ignored the key discussion…. (Rabbi Yehuda Henkin, Kol Isha Reviewed)
Do not think that now that everyone is accustomed to women’s voices we are no longer concerned about erotic thoughts…. (Rabbi Ovadiah Yosef, Yabia Omer 1:6)
Joke: May a religious man attend the opera? He’s not over* until the fat lady sings.
* doesn’t transgress
Eating out and Semachot
Congregant to rabbi: ‘Don’t worry rabbi, the food is kosher, it’s just not under supervision. If you want, we’ll get you a special meal.’
Jews love eating and they celebrate their great family occasions with food. The selection of the catering will be a major decision, one which the rabbi may only find out about some while after it has been taken. At least in densely Jewish areas, the variety and sophistication of kosher catering have never been greater, yet for a number of reasons, some choose non-kosher alternatives. From a rabbi’s perspective, this is a great shame; a wedding or bar/bat mitzvah is a key moment in one’s Jewish life, a time to renew and enhance one’s relationship with God through Judaism. Serving non-kosher food demonstrates that the ‘Jewishness’ of the occasion is superficial and the commitment of the celebrants to a real Jewish affair negligible.
Yet someone who arranges a non-kosher dinner knows just what they are serving to their guests; what of the ubiquitous ‘kosher-style’ food? ‘Kosher-style’ catering comes in different guises, calling itself variously: ‘kosher-but-not-supervised’, ‘strictly-kosher-but-without-beth-din-fees’ and ‘we-buy-only-kosher-products-you-can’t-tell-the-difference’. Of course, it is possible that everything served is actually kosher, but this is highly improbable. Here is a very short (and by no means exhaustive) list of issues:
- There is no way to verify that every product used is kosher (hundreds of ingredients are used to prepare every banquet, many very similar to non-kosher alternatives).
- The event cannot be kosher unless the food is prepared in a dedicated kosher facility or the kitchens have been completely kashered by a knowledgeable person.
- The cooking, kitchen, serving and dining utensils must be used exclusively for kosher catering; they cannot have been used previously for anything non-kosher, nor obtained from a regular hire company.
- The correct separation between meat and milk demands distinct kitchen areas and dedicated utensils for each, with no possible confusion or cross-over.
- Careful scrutiny is required to ensure that vegetables are free of infestation, eggs contain no blood-spots and that the cooking of the food is conducted under Jewish supervision.
Not one of the above-mentioned is stringency, indeed each is a basic constituent of kashrut observance; according to most opinions, kosher food cooked in clean utensils previously used for non-kosher food is Biblically forbidden. Regrettably, and there is no pleasant way to say this, all cooked food prepared in these circumstances is treif beyond question; indeed the diner at such a simchah is likely to work his or her way through a considerable number of Biblical prohibitions in the course of the meal. Since the basic ingredients are kosher, the food looks acceptable, but is not; from a Jewish perspective, the difference between this food and ‘really treif’ fare, is that one only feels guilty when eating the latter!
It is improbable that celebrants of the ‘kosher-style’ simchah are aware of all this; they are not serving their guests non-kosher food out of malice, yet they unwittingly give the impression that everything is in order, when it is not. Better to tell one’s guests in advance that the food won’t be kosher and let them make their own decisions; better still, opt for a kosher caterer.
All this leads to a discussion of rabbinical policy, for inevitably rabbis get caught up in this issue. Obviously, one guides one’s congregants to plump for a kosher affair, yet one is always aware of a lurking concern – striking the right balance between encouraging Jewish observance and being so demanding that the punter might ‘take his business elsewhere.’ The policy of the London Beth Din expresses this sensitivity; it will not authorise a chuppah scheduled to take place at the same venue as a non-supervised banquet (obviously this includes ‘kosher-style’), yet will do so if the chuppah is held in a Shul with the festivities elsewhere.
I know of colleagues who impose restrictions on the extent of bar mitzvah celebrations for those who will follow the Shul service with a non-supervised dinner and others who ignore the issue altogether. Some rabbis will attend a ‘kosher-style’ or even ‘not-even-trying-to-look-kosher’ simchah and eat a kosher airline meal, yet others feel that to do so confers legitimacy on the occasion and its catering arrangements. I admit to having declined a number of invitations on this basis and to having persuaded at least one family to hold a kosher function after all when they realised that I wouldn’t otherwise attend. It is actually very hard to achieve the right balance and unlikely that one does so in every case.
Rabbis and communal leaders must also be acutely sensitive to the reasons that lead people to choose non-supervised catering. For some it may be weakness in their commitment to Judaism or the supposed low quality of the catering, although today many kosher caterers offer superlative cuisine and service. Yet for others, it is the perceived cost of hosting a kosher affair. There are modest ways of catering a beautiful kosher simchah, but the client may not find out about them without assistance. Kashrut authorities are always helpful to families who approach them in this regard, but communal rabbis and lay leaders must be at the forefront of ensuring that no one opts for a non-kosher simchah due to the cost.
The discovery that ‘kosher-style’ catering does not produce kosher food may be disconcerting, yet it indicates that kashrut deserves to be taken seriously. In common with every area of Jewish law, it offers a nuanced, sophisticated system of rules and thus penetrates far beyond the superficial appearance of the food. We need to be real about this: fish served in non-kosher restaurants is not kosher, unchecked salads may be crawling with bugs and supermarket pre-packed meals often contain a myriad of hidden animal derivatives. These foods may look kosher, but they are not.
The Origin of a Custom
Out with her child, an Orthodox mother encounters a stranger, who points to the child and says, ‘what a cute kid: how old is she?’ The proud mother answers, ‘almost three, and she’s a he!’
It is common in religious circles to leave a boy’s hair unshorn until his third birthday and then cut it at a party called a chalukah (Hebrew) or opsher’n (Yiddish). This practice is not mentioned in the Talmud, Midrash or even the classic of mysticism, the Zohar. In fact, whether it has Jewish origins at all is hotly disputed: the practice is actually opposed by a number of Lithuanian rabbis for this reason.
Variants of this tradition exist. Some cut the hair on the boy’s third birthday, or on the next convenient day. Others take him to the gravesite of Rabbi Shimon bar Yochay (in mystical tradition, the second-century author of the Zohar) in the Galilean of Meron to perform the hair-cutting. Many do this on Lag BaOmer (33rd day of the Omer-count and the anniversary of Rabbi Shimon’s death). Rabbi Shimon and Lag BaOmer are associated with the most profound secrets of Jewish esoteric thought. Among Skverer Chasidim, the opsher’n is performed on the child’s second birthday. The day often coincides with the start of the boy’s Jewish education, when he will start to wear a kippah and tzitzit. His peyot (side-locks) will be left following the ceremony. The hair is often weighed and its equivalent donated to charity.
The earliest mention of hair-cutting appears in the Sha’ar HaKavvanot (Pesach, exposition 12) of Rabbi Chaim Vital (1543-1620), who reports that his teacher, the Kabbalistic master Rabbi Yitzhak Luria (the Ari), ‘took his young son to Meron with his entire household and cut his hair there, according to the known practice’. Commentators assume that this event happened when the boy was three. Radbaz (David ben Zimri, 1479-1573) refers to the practice in Responsum II:608 (although he mentions performing it at the gravesite of the prophet Samuel), stating that ‘all around people consider it to be a real mandatory obligation’.
Later sources attempt to explain it by referring to Deuteronomy (20:19), which compares a man to a tree. Just as the fruit of the tree must be left for three years (Leviticus 19:23), so the hair of the child is left until the beginning of his fourth year.
A beautiful story is circulating about how the great German scholar Rabbi S.R. Hirsch (the practice was unheard of in Germany) attended the opsher’n of the son of a Hungarian Jew who had settled in Frankfurt. The story even includes the inspirational speech apparently delivered by Rabbi Hirsch. Unfortunately, it is a hoax!
It seems likely that the practice of opsher’n was initially confined to Kabbalistic circles in the Galilee, but was then adopted by many Sephardim and later, Chassidim. It was unknown in communities of Western European origins and among non-Chassidic Eastern-European Jewry; the growing influence of Chassidic practice means that it has recently appeared among them too.
The religious scruples of a Muslim police officer recently made headlines when she refused to shake hands with Sir Ian Blair at her passing-out ceremony. She asserted that her faith barred her from physical contact with men other than her husband or family members. This is reminiscent of the 2004 statement by President Macapagal-Arroyo of the Philippines warning men not to kiss her as a form of greeting. She announced, 'please, all the men in the country, so that I would not be rude to you, do not make kiss kiss with me’.
Jewish law has a strict code of conduct governing interactions between the sexes. Halachah expects care when it comes to physical contact with others, fully cognisant of the non-platonic potential in every touch. While in our society, contact in the form of shaking hands or even kissing has been desexualised, Judaism wishes us to remain sensitive to the majestic potential in each touch.
Contact between members of the opposite sex is forbidden, excepting close family members, where relationships are absolutely platonic. Restricting even casual contact to the marital relationship assures that the mildest touch can be replete with love and meaning. Judaism believes in powerful and passionate intimate relations and takes great care to ensure that every ounce of sensuality is reserved for marriage.
How far does this restriction extend? Halachah forbids any contact between the sexes that can be construed to be ‘derech chibah’ – holding any pleasurable or sexual suggestion whatsoever. This clearly forbids greeting others by kissing them, and, at least according to most halachists, prohibits even casual contact in the form of a handshake. If necessary, as in the case of the Muslim police cadet, one may have to explain oneself to avoid embarrassing others, or, by holding something in each hand, engineer a situation in which handshaking can be avoided altogether.
Yet some current halachists suggest that the handshake that commonly introduces business and social meetings is utterly devoid of sexual meaning. It is simply a means of activating a communication and is not ‘derech chibah’ at all. Accordingly, in this narrow circumstance it would be permissible to shake hands. A common compromise involves not instigating the handshake, but taking a hand offered to avoid embarrassing its owner. It should be emphasised that while this view is commonly relied upon, is not reflective of the view of the majority of halachists. It is however, the view of a respected minority opinion, and indeed, the view of my own teacher.
These restrictions do not apply to a doctor’s examination, as the halachah assumes that the doctor is immersed in his or her professional duties, which eliminates any concern. Whether they apply to other ‘professional’ circumstances, such as at the hairdresser’s, is a subject of discussion too.
At Sukkot-time, one often sees an image of a bearded man examining an etrog with a jeweller’s loupe; those who have seen the popular Israeli film ‘Ushpizin’ will recall that selecting a beautiful etrog is a serious business.
The observance of Sukkot involves the use of four species: lulav - palm branch, etrog - citron, three myrtle sticks and two willow twigs; they are waved in devotion during the Hallel psalms. The Torah stipulates (VaYikra 23:40) that the etrog must be ‘beautiful’, but the rabbis understand beauty to be a prerequisite for all four species. Here, however, beauty is not in the eye of the beholder, for the criteria of ‘beauty’ are very carefully specified in what has become a vast body of halachic literature.
So how does one select a beautiful set? Here is a very brief guide:
The lulav should be fresh and green, especially at its end. The leaves grow in pairs, all of which should be intact and together, particularly at the top. The leaves above the ‘spine’ of the lulav should be completely whole. Special attention must be paid to the central leaves.
The etrog must be undamaged, with its top (pitom) and bottom (uketz) protrusions intact. It should be as free of marks as possible, especially on the part that tapers; any black marks are particularly problematic. The etrog should be yellow, bumpy (not smooth like a lemon), with a wide lower portion narrowing symmetrically towards its pitom. Some varieties grow without a pitom; these are great for clumsy people!
The myrtles should be fresh and green, with the end of the stick and the top leaves intact. Myrtle leaves appear in threes from its stalk (meshulash – tripled); each group of three leaves should emerge at the same level from the stalk, ideally along its entire length, but at least for the majority of it. The leaves should be upright and interlocking, covering the branch.
The willows too should be fresh and green, with the end of the stick and the top leaf intact and the leaves in good condition. One should select a variety with long, smooth-edged leaves and red stems.
Daunted by all this? Fortunately, pre-checked items are available for the uninitiated, although one of the great pleasures of the season is selecting them oneself. As for the loupe, it isn’t necessary, as the naked eye at a normal distance will do; it is only used for resolving uncertainty.