Q&A: A Decree Because of Those Entering
A Decree Because of Those Entering
Question
In Orach Chayim, section 138, it says: “One who reads from the Torah should not leave fewer than three verses in a passage, because of those leaving the synagogue at that time, who will say that the person called up after him will read only the two remaining verses.”
The Mishnah Berurah explains that this refers to an open or closed paragraph break, not to the second and third aliyot. But in Sha’ar HaTziyun he tends to say that one should act this way regarding the second and third aliyot as well, because the reason for the decree applies here.
Isn’t this an oxymoron? After all, either way: if we judge based on the rationale of the decree (“midrashic conservatism,” in your terminology), then one should follow this only regarding the second and third aliyot, since nowadays nobody gives Torah aliyot based on open and closed paragraph breaks. But if we judge in a conservative-literal way, then there is no need at all to apply this to the second and third aliyot as well.
It seems to me that this is a good example of the inflation of Jewish law when one does not use your distinction.
Answer
It does indeed seem that way. But the Mishnah Berurah himself was aware of this. In other words, this is not a matter of carelessness. It is true that with enactments and decrees, we say that we do not follow the rationale of the enactment but rather its formal definition. But there are many qualifications to that rule. Practically speaking, it sounds very reasonable to me to act as you suggest.