Lesson from 7 Shevat 5767

Table of Contents

• The first Rashi, the Book of Genesis, and the “Book of the Upright”
• The commandment of sanctifying the new month in Maimonides and the authority of the religious court
• “You” even if mistaken, and the ruling in the laws of sanctifying the new month
• The Mishnah “Heaven has already sanctified it” and the limitation of authority
• The Talmudic passage in Chullin about a time of persecution and canceling sanctification of the month
• Tosafot in Sanhedrin: the heavenly court versus the earthly court
• Rabbeinu Yonah: “it does not depend on the opinion of the religious court” when not in its proper time
• Maimonides on witnesses who arrived late and the implication for the idea that “Heaven sanctified it”
• Being killed rather than transgressing regarding a positive commandment: the Ritva, the Ran, and a Torah-level doubt
• Kli Chemdah: the need for a justification for the religious court, and the meaning of a decree against the religious court
• The Rema, the Mishnah Berurah, and violating the Sabbath to save someone from coercion into severe sins

Summary

General Overview

The text opens with a desire to deal with material from tractate Chullin that touches on sanctifying the new month and branches off in several directions, and it frames this through the commandment, “This month shall be for you the beginning of months,” and its uniqueness as an authority granted to the religious court. It presents the first Rashi on the Torah as a starting point for the question of why the Torah does not begin with the commandments, and suggests that Genesis comes to define who is “upright in His eyes,” by whose merit the land is given, and that is why it is the “Book of the Upright.” From there it moves to Maimonides and the Talmud in Rosh Hashanah, which establish that the sanctity of the month and the festivals is determined by the religious court in the Land of Israel even if done in error, deliberately, or by mistake, but then raises a limitation from the Mishnah, “if it was not seen in its proper time… Heaven has already sanctified it,” and Jewish law follows Rabbi Elazar son of Rabbi Tzadok. It then brings a Talmudic passage in Chullin about a “time of persecution,” in which the religious court did not sanctify the month so that there would be no Yom Kippur, presents the Ritva’s and Tosafot’s difficulties, and develops a fundamental dispute between Tosafot and Rabbeinu Yonah as to whether “Heaven has sanctified it” refers to an act of the heavenly court or is a description that the thirty-first day is fixed automatically. It concludes with a possible explanation for the distinction between a positive commandment and a prohibition in the law of being killed rather than transgressing, and with the Kli Chemdah’s suggestion that the Ritva needed to say that the gentiles specifically decreed against the religious court, alongside a parallel discussion of the Rema and the Mishnah Berurah regarding violating the Sabbath to save a person from coercion into severe transgressions.

The first Rashi, the Book of Genesis, and the “Book of the Upright”

Rashi asks why the Torah did not begin with the commandments, and what need there was for the Book of Genesis and the beginning of Exodus up to “This month shall be for you.” Rashi answers, “He declared to His people the power of His works, to give them the inheritance of the nations,” in order to answer the nations’ claim that the land was stolen, because God created the land and gives it “to whoever is upright in His eyes.” The text argues that the continuation of Rashi’s wording teaches that what is at stake here is not only the divine right to give the land, but the definition of who those “upright in His eyes” are, and that this is the purpose of Genesis; that is why it is called the “Book of the Upright,” as the book of the upright ones that justifies why the patriarchs and their descendants are worthy of the promise of the land. It suggests that the Torah’s other descriptions also teach what it means to be upright in God’s eyes, including situations in which Israel are not upright and are punished, and ties this to the verse, “For I have known him, so that he may command his children and his household after him to keep the way of the Lord, to do righteousness and justice,” as the justification for what is latent in Abraham and his descendants.

The commandment of sanctifying the new month in Maimonides and the authority of the religious court

Maimonides counts in Sefer HaMitzvot commandment 153: to sanctify months and calculate months and years, based on “This month shall be for you the beginning of months.” Maimonides emphasizes that “this testimony shall be entrusted to you,” and explains that this is not a commandment given to every individual, like the weekly Sabbath, but only to the Great religious court, and only in the Land of Israel. The text sharpens the point that in sanctifying the month, the religious court has both a duty to act and determinative authority, unlike the Sabbath, which is fixed and established on its own, and therefore there is a fundamental difference between a Jewish holiday and the Sabbath.

“You” even if mistaken, and the ruling in the laws of sanctifying the new month

In the Talmud in Rosh Hashanah, there is a case in which Rabban Gamliel fixed the sanctification of the month and Rabbi Yehoshua was distressed, and Rabbi Akiva comforted him from the word “you” repeated three times: “you” even if inadvertent, “you” even if deliberate, “you” even if mistaken. Maimonides rules this way at the end of chapter 2 of the laws of sanctifying the new month: a religious court that sanctified the month, whether inadvertently, mistakenly, or under compulsion, it is sanctified; and everyone must fix the festivals according to the day they sanctified, even if it is known that they erred, because “the matter is entrusted only to them,” and it says, “which you shall proclaim.” The text mentions the controversy at the end of the Geonic period over fixing the calendar between Babylonia and the Land of Israel, and notes that Rav Saadia Gaon stood in a fierce confrontation and in the end “his hand prevailed,” with comments about the continued existence of Geonim in the Land of Israel until roughly the time of Maimonides.

The Mishnah “Heaven has already sanctified it” and the limitation of authority

The Mishnah in Rosh Hashanah 24 states that the first opinion says, “Whether it was seen in its proper time or whether it was not seen in its proper time, they sanctify it,” while Rabbi Elazar son of Rabbi Tzadok says, “If it was not seen in its proper time, they do not sanctify it, because Heaven has already sanctified it.” The text explains the meaning of “in its proper time” and “not in its proper time” as commonly understood by the medieval authorities (Rishonim) and later authorities (Acharonim): the thirtieth day and the thirty-first day. It raises a linguistic difficulty as to why the thirty-first day is called “not in its proper time,” and brings, as an aside, the possibility of interpreting “not in its proper time” as sanctification without actually seeing the moon, mentioning that Rabbi Eliezer Silver in his book Tzemach Erez / Anfei Erez goes in that direction, even though it is against the accepted understanding. The Talmud explains that the first opinion learns this from “you, which you shall proclaim,” and Jewish law is ruled like Rabbi Elazar son of Rabbi Tzadok that when it is not in its proper time one need not sanctify, because “Heaven has already sanctified it,” and the text presents this as a limitation: the religious court cannot determine things beyond the range of day thirty to day thirty-one.

The Talmudic passage in Chullin about a time of persecution and canceling sanctification of the month

In tractate Chullin, within a discussion of “one prohibition cannot take effect on top of another” in a case where Yom Kippur falls on the Sabbath, the Talmud answers that the case is “at a time of persecution,” and Rashi explains that there was a decree not to observe Yom Kippur. The text presents the possibility that the religious court did not sanctify the month of Tishrei so that there would be no Yom Kippur, and thus Israel could desecrate without being killed, and adds that the Talmud also describes arranging for Yom Kippur to fall on the Sabbath so that the gentiles would attribute the abstention from labor to the Sabbath and not to Yom Kippur, with some ambiguity as to whether they actually did not sanctify at all or sanctified in a way that shifted the date. The Ritva asks, based on Tosafot, how it is possible to “cancel Yom Kippur at a time of decree” when “at a time of decree, even over a shoelace one must be killed rather than transgress.” He suggests that sanctifying the month is a positive commandment of the religious court, and regarding a positive commandment, one transgresses rather than being killed; and he adds the possibility that the gentiles decreed against the religious court not to sanctify. The text sharpens the point that according to the Ritva, the focus is the religious court’s transgression in neglecting a positive commandment, not the people’s violation of Yom Kippur, and raises difficulties: how is neglecting a positive commandment lighter than the case of a shoelace; why is there a need to say that the gentiles decreed specifically against the religious court and not only against the people; and what follows from this regarding the possibility that when the religious court does not sanctify, the month does not automatically begin on the thirty-first day.

Tosafot in Sanhedrin: the heavenly court versus the earthly court

Tosafot in Sanhedrin 10b brings an explanation that “the heavenly court always sanctifies it at the time of the molad,” and rejects it, because then even “in its proper time” Heaven has already sanctified it. Tosafot accepts the explanation of the kuntres that on day thirty “the heavenly court waits for the earthly court, perhaps they will declare the month full,” while on day thirty-one “they sanctify it in Heaven from dawn,” because there is no longer any doubt that that day will be fixed. The text infers from Tosafot that there is an active action of the heavenly court based on the knowledge that the earthly court will establish it on day thirty-one, and raises the question of what would happen if the earthly court were to decide actively not to sanctify even on day thirty-one, in a way that could fit with the Ritva’s view that the month could continue until the religious court “releases the matter.” It ties this to a practical implication of the rule that “months are not sanctified at night,” which explains why Tosafot emphasizes “from dawn,” and why, in the question of repeating Ya’aleh VeYavo on the night of Rosh Chodesh, one could build on a conception that the actual sanctification belongs to the morning.

Rabbeinu Yonah: “it does not depend on the opinion of the religious court” when not in its proper time

Rabbeinu Yonah on the passage in Sanhedrin explains “Heaven has already sanctified it” as a description that on day thirty-one “it does not depend on the opinion of the religious court,” and the month “is sanctified automatically,” because the month cannot be delayed any further. He distinguishes between day thirty, when the matter depends on the opinion of the religious court by virtue of “you” even if inadvertent, even if under compulsion, even if mistaken, and the situation after they did not sanctify on day thirty, when there is no further degree of freedom and day thirty-one is fixed on its own. The text presents this as a root-level dispute with Tosafot: is there a “heavenly court” that acts, or is this only a literary expression for an automatic determination? It notes that according to Rabbeinu Yonah there is no room to say that the sanctification happens specifically from the morning, because there is no sanctification at all, only an automatic legal effect from the night.

Maimonides on witnesses who arrived late and the implication for the idea that “Heaven sanctified it”

Maimonides, in chapter 3 of the laws of sanctifying the new month, describes a case where the religious court sat on day thirty and no witnesses came, so they declared the month full; then after several days, even “at the end of the month,” distant witnesses arrived and testified that they saw the moon on the night of day thirty. The religious court tries “not to sanctify it” by intimidating them and examining them, so as not to alter a month that “has gone out with a reputation of being full.” Maimonides rules that if the witnesses stand by their testimony and it is accurate, “they sanctify it and go back to count that month from day thirty,” and the text uses this to emphasize a conception in which there is no heavenly sanctification that prevents correction, unlike the understanding hinted at by Tosafot in Sanhedrin of an active heavenly sanctification on day thirty-one. It points out that the discussion bears on the possibility of retroactively changing calendars and festival dates, and links this to the question of how, according to a view that limits matters to day thirty-one, one can explain the “time of persecution” episode in Chullin.

Being killed rather than transgressing regarding a positive commandment: the Ritva, the Ran, and a Torah-level doubt

The text raises the difficulty of how the Ritva can say that for neglecting a positive commandment one “transgresses rather than being killed” even at a time of persecution, when “a shoelace” requires one to be killed rather than transgress even though it is not a commandment at all. It brings an explanation presented as a comment: in self-sacrifice over a positive commandment there is no gain, because the commandment will not be fulfilled after one is killed, unlike a prohibition, where self-sacrifice prevents the transgression. It notes that this can be challenged, because one could fulfill the positive commandment and then be killed. It then brings the Ran regarding Elisha Ba’al Kenafayim, who distinguishes that at a time of persecution, the law of being killed rather than transgressing was said about prohibitions, whereas in neglecting a positive commandment one “neglects rather than being killed,” because one is not transgressing actively, and also because the gentiles can prevent it from him against his will. It adds a link to Rabbi Akiva Eiger’s inquiry that the principle of being stringent in a Torah-level doubt does not necessarily obligate stringency in a doubtful positive commandment when even the stricter course does not produce a definite result. It notes that there are cases of positive commandments where stringency does in fact ensure avoiding neglect of the commandment, and emphasizes that the distinction is not absolute but depends on the type of doubt and on what is actually gained from the action.

Kli Chemdah: the need for a justification for the religious court, and the meaning of a decree against the religious court

The Kli Chemdah explains that the religious court needs a justification in order not to sanctify the month, because even though its decision takes effect by the rule of “you” even if deliberate, the question still remains whether they are permitted to do so. He argues that if the reason is to prevent Israel from dying in sanctification of the Divine Name at a time of persecution, that is not a justification for canceling sanctification of the month, because “there is nothing greater than dying for sanctification of the Divine Name.” Therefore, the Ritva needed to say that it is possible that the gentiles decreed against the religious court itself not to sanctify. The text connects this to his comments in Parashat Vayeshev on the Levush, that on Hanukkah there is no law of feasting and rejoicing because “there was no saving of lives,” and brings the Taz’s astonishment that spiritual rescue is greater than physical rescue, on the basis of “one who causes another to sin is worse than one who kills him,” along with the halakhic tension surrounding violating the Sabbath to save a person from spiritual kidnapping. It presents here an approach in which the value of saving life is also examined through the possibility of fulfilling commandments, and places the question of justifying the canceling of sanctification of the month opposite the value of sanctification of the Divine Name.

The Rema, the Mishnah Berurah, and violating the Sabbath to save someone from coercion into severe sins

The Rema rules that if people want to force someone to commit a grave sin, “one does not violate the Sabbath for him in order to save him,” based on the principle, “we do not tell a person: sin so that your fellow may benefit.” The Mishnah Berurah is unsure, and writes that if the coercion concerns one of the three cardinal sins, and one estimates that the coerced person will give up his life, “it may be that one must” violate the Sabbath so that it does not come to that. The text attributes the lack of simplicity here to the fact that self-sacrifice can be viewed as rescue from sin rather than rescue of life, while saving life overrides the Sabbath only when it is defined as saving a life. It suggests that this consideration connects to the tension raised by the Kli Chemdah: whether preventing self-sacrifice for sanctification of the Divine Name counts as “rescue” that justifies halakhic action. It concludes with this as another example of the question of hierarchy between fulfilling commandments, saving lives, and giving one’s life.

We wanted to deal with things from tractate Hullin that touch a bit on sanctifying the new month, and in practice branch off in several directions that don’t necessarily have any essential connection to one another, but each of them requires clarification. We’ll try to spend a little time on what comes out of it. The Kli Hemdah brings this in the weekly Torah portion and also comments on some of these points. Some of the things are there, and even some of his solutions also still require discussion. In our context, of course, the commandment of sanctifying the months appears: “This month shall be for you the beginning of months.” This is the section that, in fact, Rashi in his very first comment on the Torah asks why the Torah did not begin with. Why was there any need to write all of Genesis at all? I don’t remember whether we ever spoke about this Rashi, but it’s an interesting Rashi because there is some assumption here that, even without explaining it, he assumes that the Torah is really supposed to focus only on commandments. That’s why he asks what we need all of Genesis for, and the beginning of Exodus until “This month shall be for you the beginning of months”—really it should have started straight from the commandments. Of course, one could continue and ask why we need the rest of the Torah too. We should just have written a collection like Maimonides’ Book of Commandments, and that would be that. It’s not only a question about Genesis, and the answer he gives also doesn’t really answer it, because the answer he gives is “He declared to His people the power of His works, to give them the inheritance of the nations,” meaning that what is written there is that the Holy One, blessed be He, created the world, and therefore He can give the land to whomever seems right in His eyes. If the nations come and say such-and-such, we’ll tell them that the Holy One, blessed be He, created the land and gave it to whomever seemed right in His eyes. So that explains the verses of creation, but what about…? After all, the question was about a whole book and more than a book. A whole book and more than a book, apparently. Where do we know that He gave it to the people of Israel? What? Later on there are promises to Abraham, promises to Isaac, promises to Jacob. Okay, so you can add another four or five verses and in that way explain the promises of the Holy One to the patriarchs too. But still—why the whole chain of events? Why do we need all of it? What is all this surrounding story for? What is the point of the whole story around it? Apparently—and this is just a parenthetical remark, simply because Rashi is dealing with this commandment—the answer is found later in Rashi’s own words. There, within his words, he writes that He created it and gave it to whomever seemed right in His eyes. So we don’t learn from here only the very right of the Holy One to give the land to whomever He decides because He created it, but also who it is that is called “right in His eyes.” There is another element in Rashi there. In other words, not only can the Holy One give the land to whomever He wants, but He also gives it to the one who is upright in His eyes. What does “upright in His eyes” mean? Who is the one upright in His eyes? That is what Genesis is for. In other words, Genesis is meant to show us why, in fact, the patriarchs were the ones upright in the eyes of the Holy One to whom to give the land, and therefore Genesis is indeed called the Book of the Upright. People already wrote this—that it is the book of the upright ones. The book is meant to teach us or show us why the Holy One indeed decided to give the land to the patriarchs—to Abraham and after that to Isaac—and the land, because he was upright in His eyes. And in order to describe what “upright in His eyes” means, all the rest was needed. Maybe this is also an explanation for the rest of the Torah. I said before: why does Rashi ask only about Genesis and not about everything else? The rest of the Torah also comes to teach us not only necessarily to prove that we are the ones upright in the eyes of the Holy One, but to teach us what it means to be upright in the eyes of the Holy One. Sometimes we weren’t, and then we got hit for it. In other words, the whole biblical description comes to teach us what is called upright in the eyes of the Holy One. But you promised these things to Abraham our father, right? So from then on we are upright—why? We know we are upright in the eyes of the Holy One, after all He promised it to Abraham. Obviously. But Scripture shows you why He promised it to Abraham—because he was upright in His eyes. He and his descendants. No, he and his descendants. “The book of the upright” means all the patriarchs were upright. But He promised him. And once He promised him, then he deserves it. His descendants deserve it because he was upright. Obviously, but you want to explain why it was in fact justified that He promised him. He promised him because he was upright in His eyes, he and his descendants. After all, the land was not given to Abraham alone, but to Abraham and his descendants. So in what sense were they upright? With Abraham—He loved Abraham, right? Apparently He loved Abraham and said: you are upright in My eyes; in return for that I promise you that your descendants will be upright, and here is the proof—look at the book, how it describes the descendants. But He already promised him the land, so it sounds redundant; the rest is redundant. No, not redundant. It is the justification that shows us what the Holy One could see in advance. The Holy One saw in advance what was latent in Abraham, and therefore said, “For I have known him, so that he may command his children and his household after him to keep the way of the Lord, to do righteousness and justice,” and then they come to show how this is indeed true—in other words, why it is true that these are the ones upright in the eyes of the Holy One. Fine, that’s really just a side remark.

So in any event, with us the commandments begin—at least the commandments in the more public, general sense, those given to the people of Israel—and this commandment of sanctifying the months and so on is counted by Maimonides in the Book of Commandments. Commandment 153 is: He commanded us, may He be exalted, to sanctify the months and calculate the months and years, and this is the commandment of sanctifying the new month. And this is His saying, may He be exalted: “This month shall be for you the beginning of months.” And the explanation says: “This testimony shall be entrusted to you,” meaning that this commandment is not entrusted to each and every person as the Sabbath of Creation is, where every person counts six days and rests on the seventh, until the moon is seen by each and every person and he establishes that day as the new month, or counts by astronomical calculation and establishes the new month, or examines the lateness of the spring and the other things one must take into account and adds a month. All of that—not so. This commandment is never performed except by the Great Court alone, and only in the Land of Israel. In other words, this commandment of sanctifying the months and calculating the months and the years is a commandment not entrusted to us as the Sabbath is. It is not entrusted to each individual, but only to the court in two senses. First of all, it is the court’s job to count and establish the months and the festivals, unlike the Sabbath, which is fixed and existing: every seven days there is Sabbath, and it does not depend on us. And second, not only are they obligated—that is, they are the addressees of the commandment; they are the ones commanded to do it, namely the court—but they also have the authority to do it. The authority in the sense that only they determine when the months and years are, and not some objective count that exists independently, as with Sabbath. So there is also that dimension of difference between a Jewish holiday and the Sabbath.

Indeed, in the Talmud in Rosh Hashanah a certain case is brought where Rabban Gamliel determined the sanctification of the month according to some tradition in his hands, and Rabbi Yehoshua there was distressed by it. So Rabbi Akiva—Rabbi Akiva was Rabbi Yehoshua’s student—said to him: “My teacher, allow me to say before you one thing that you taught me.” He said to him: “Say it.” He said to him: “It says ‘you,’ ‘you,’ ‘you’ three times—‘you,’ even if you err; ‘you,’ even if you act intentionally; ‘you,’ even if you are misled.” In those words he said to him, “Akiva, you have comforted me, you have comforted me.” In other words, what Rabban Gamliel determined is what determines reality. It makes no difference even if he erred, even if you think he was wrong—if he is the head of the court of the court in the Land of Israel, then he is the one who determines. And indeed Maimonides rules this as Jewish law in the laws of sanctifying the new month at the end of chapter 2: “A court that sanctified the month, whether in error, whether misled, whether under duress, it is sanctified; and everyone is obligated to establish the festivals according to the day they sanctified, even if this one knew that they erred.” Even if there is someone who knows that the court erred, like Rabbi Yehoshua in the case in the Talmud, he is obligated to rely on them, for the matter is entrusted only to them, and He who commanded us to observe the festivals commanded us to rely on them, as it says, “which you shall proclaim them,” and so on. So that is also found in Maimonides as Jewish law.

As is known, there were great controversies over this at the end of the Geonic period. There was a dispute between Babylonia and the Land of Israel—Rabbi Saadia Gaon and the corresponding gaon in the Land of Israel—over who really had the authority to determine it. There was a difference in calendars, and there was a very, very sharp confrontation over who really had the authority to decide. In the end, it seems to me Rabbi Saadia Gaon prevailed, even though he sat in Egypt. How was Rabbi Saadia Gaon in Egypt? Right—wasn’t he in Babylonia? No, in Egypt. This was really the end of the Geonic period. On the contrary, after Rabbi Saadia Gaon there were still gaonim in the Land of Israel even later, until the time of Maimonides. Roughly around the time of Maimonides it ended. And there was still a gaon in Babylonia, just that his status was no longer what it had been during the Geonic period.

The Mishnah says—this is a general introduction—now there is a limitation. Seemingly there is a limitation on this infinite authority of the sages, that whatever they say—whether mistaken, intentional, under duress—it doesn’t matter, whatever they establish, that is what happens in sanctifying the month, unlike other things. So there is some authority here that is very exceptional. On the other hand, we find the Mishnah in Rosh Hashanah 24: “The head of the court says, ‘Sanctified,’ and all the people answer after him, ‘Sanctified, sanctified.’ Whether it was seen in its proper time or whether it was not seen in its proper time, they sanctify it.” The first tanna says that whether it was seen in its proper time or not in its proper time, they sanctify it—the intention being on day 30 or day 31, they always sanctify it. Rabbi Elazar son of Rabbi Tzadok says: “If it was not seen in its proper time, they do not sanctify it, for Heaven has already sanctified it.” In other words, Rabbi Elazar son of Rabbi Tzadok disagrees with the first tanna and holds that if the moon was not seen on the thirtieth day, then the new month is automatically on the thirty-first day. In that case there is no need to sanctify it at all, because Heaven has already sanctified it. Meaning: if it’s on the thirtieth day and witnesses come, then the court needs to sanctify the month. If witnesses did not come, the court did not sanctify the month—what happens on the thirty-first day? No need to sanctify; the thirty-first day is already “sanctified by Heaven.” In other words, it is holiness that comes of itself. Already here you see some limitation on the authority of the sages, because then it comes out that the court did not establish the new month if it does not happen on the thirtieth day but on the thirty-first. In practice, we no longer wait for the court. The court did not establish it; it happens automatically, because Heaven has already sanctified it.

And indeed—is that because they sanctified on the thirtieth…? What? One thing is connected to the other: if they didn’t sanctify on day 30, then automatically… If I want on day 35? No, there’s no such thing. What do you mean, there’s no such thing? After all: intentional, mistaken, under duress—what’s the problem? Why not? The limitation is either day 30 or day 31. Okay, so it’s about that limitation that we are speaking. In other words, within that limitation, it comes out that, at least in terms of sanctifying the month, very little is actually in the hands of the court. They can determine it either on day 30, or else necessarily it will be on day 31; they don’t even need to sanctify—it happens on its own, automatically. So too the Talmud rules as Jewish law.

By the way, just as a side note: “in its proper time” and “not in its proper time” as they appear here in the Talmud—“if seen in its proper time they sanctify it, if not seen in its proper time they do not sanctify it”—all the medieval authorities (Rishonim) and later authorities (Acharonim) explain “its proper time” and “not its proper time” to mean on day 30 and on day 31. Once, when I was a yeshiva student, we learned this—actually no, not then; at the beginning of… a bit after I got married we learned it—and there were… never mind, within the topic there are many difficulties in connection with Rabbi Elazar son of Rabbi Tzadok, and all the medieval and later authorities twist themselves around all those difficulties, but still the explanation accepted by everyone is that “its proper time” means day 30 and “not its proper time” means day 31. Honestly, I didn’t understand it. What does it mean to call day 30 “its proper time” and day 31 “not its proper time”? If it is seen on day 31, then that is its time—why is that called not its proper time? Why is one called “its proper time” and the other “not its proper time”? If it is seen here, then here; if it is not seen, then it isn’t seen, so that’s its proper time. The court has no preference here at all. So why is one called “its proper time” and one “not its proper time”? Really a good question. Later I had another interpretation of the topic, that really “in its proper time” and “not in its proper time” means: at a time when it is visible, if the court decides to sanctify it when it is visible, that is called “in its proper time,” whether that is day 30 or day 31. Sometimes the court may decide to sanctify the month not in its proper time, meaning without the moon having been seen; sometimes there were such fictions. Yes, exactly, sometimes there are such fictions, and that is called “not in its proper time.” And then, never mind for now, within the topic one would have to understand how it works, but that resolves a lot of difficulties there. Then someone referred me to Rabbi Eliezer Silver—he has a book, Tzemach Erez, Anfei Erez, Tzemach Erez—he was head of the Council of Torah Sages in Cincinnati during the Holocaust and a bit after. He really goes in that direction and offers another interpretation. But again, it goes against all the medieval and later authorities, so that is not the accepted interpretation of the topic. Again, that was just a parenthetical note. Because the lunar time is a fixed time—twenty-nine and a half days. No, but you’re looking for a day; the new month is always a full day. What does twenty-nine and a half mean? No, but the time when one sees the moon—if you see it at the time you expect to see it, and if you don’t see it at the time you expect to see it because of clouds… But then you don’t see the conjunction at all; you see it not at the conjunction. That’s in its proper time but you don’t see it. So then you don’t see the conjunction at all; you see the moon only after the conjunction. So again the question is to what extent that is called “not seen” and so on. Fine, maybe.

In any event, that was just a side remark. In any case, the Talmud there explains the dispute: the first tanna says they sanctify whether in its proper time or not in its proper time; Rabbi Elazar son of Rabbi Tzadok says that in its proper time they sanctify it, and not in its proper time it happens automatically. The Talmud discusses from where they derive this. The first tanna, who says one must always sanctify, derives it from the verse “which you shall proclaim them.” And on the thirty-first day it is established automatically, and the Jewish law follows Rabbi Elazar son of Rabbi Tzadok. The Talmud itself says so, and so too it is ruled as Jewish law by Maimonides, that the Jewish law follows Rabbi Elazar son of Rabbi Tzadok. Fine. That they do not sanctify? That they do not need to—if not in its proper time, there is no need to sanctify.

Now, in the Talmud in tractate Hullin, the Talmud discusses the topic of one prohibition not taking effect on top of another prohibition, and the Talmud brings there that if there is a certain situation in which Yom Kippur falls on the Sabbath, then someone who transgresses—there they discuss whether he acted intentionally on the Sabbath and inadvertently on Yom Kippur, or inadvertently on the Sabbath and intentionally on Yom Kippur—and in the end it comes out there that if someone was inadvertent with respect to the Sabbath and intentional with respect to Yom Kippur, he is liable; if he was intentional with respect to the Sabbath and inadvertent with respect to Yom Kippur, he is exempt. The Talmud discusses there exactly how it works, why it happens, what the issue is if Yom Kippur falls on the Sabbath—there is a problem of one prohibition not taking effect on top of another. In the end the Talmud does not fully resolve it; we won’t get into the details of the topic. The Talmud says: no, it was speaking there of a time of persecution. It was speaking there of a time of persecution, and because it was a time of persecution, in practice the court did not establish Yom Kippur. “A time of persecution”—Rashi explains there that it was decreed against them not to observe Yom Kippur. And since it was decreed against them not to observe Yom Kippur, if they had observed Yom Kippur they would have paid with their lives. So what the court did was simply not sanctify the month. They did not sanctify the month of Tishrei, and therefore there was no Yom Kippur there. Then all Israel could desecrate Yom Kippur and would not have to die in order to keep it. That is what is written there in the Talmud.

By the way, the Talmud brings another case, because it explains this—why if he was intentional on the Sabbath and inadvertent on Yom Kippur, or intentional on Yom Kippur and inadvertent on the Sabbath, he is exempt. So the Talmud says: because from the Yom Kippur side he is not liable, because it was not Yom Kippur. But if the court did not sanctify the month, doesn’t that automatically pass to the next day? That’s why I’m bringing this up—that is the question. Okay, we’re getting there already. In any event, that is what the Talmud says there. The Talmud adds that the court set Yom Kippur to be on the Sabbath so that the people of Israel would be able not to do labor, and the surrounding gentiles would not associate it with Yom Kippur. They would think it was like any Sabbath, that we don’t do labor, and therefore they would not kill us, and we could refrain from labor on Yom Kippur as well. For some reason, what bothered them then was only Yom Kippur. There is some ambiguity there in the Talmud as to exactly what they did. It seems that they did sanctify the month, but sanctified it in such a way that Yom Kippur would fall on the Sabbath and not when it was supposed to fall on some weekday. In any case, the Ritva there on the spot says as follows:

“Tosafot asked: how is it possible that they annulled Yom Kippur in a time of persecution? For in a time of persecution, even over a shoelace one must be killed rather than transgress.” After all, if it is a time of persecution, a time of religious oppression, then in practice we are commanded to be killed rather than transgress even over the color of a shoelace. If gentiles come and say, “If you do not change the color of the shoelaces that Jews customarily wear, we will kill you all,” then there is a commandment of being killed rather than transgressing even over the color of shoelaces in a time of persecution. In other words, unlike ordinary times when one must be killed rather than transgress only over the three cardinal sins, in a time of persecution, over any custom, over anything, one must be killed rather than transgress. So the Ritva asks: here too it was a time of persecution, and the intent was that we not keep Yom Kippur. Not keeping Yom Kippur—true, that is not one of the three cardinal sins, and in ordinary times we are not commanded to give our lives to keep Yom Kippur, but here it was a time of persecution. The Talmud itself says that in a time of persecution even over the custom of shoelaces one must be killed rather than transgress. So why here, with Yom Kippur—why did they cancel Yom Kippur? Then the Ritva says: even not in a time of persecution, if it is in public one must be killed rather than transgress. A time of persecution—even if it is not a general time of persecution, here it is public, so one must be killed rather than transgress as well, says the Ritva here. So how did they cancel Yom Kippur?

The Ritva says: “It seems to me that this is not difficult, for sanctifying the month is a positive commandment incumbent on the court, and for a positive commandment one transgresses rather than being killed, as we have explained in several places—unless it is a matter of exceptional piety, like that which we find in the topic in Sabbath,” and so on. “And it is possible that this is what the gentiles decreed against the court—not to sanctify. Then there is no Yom Kippur.” In other words, first one has to understand what he means: why did they not give their lives for Yom Kippur? It was not Yom Kippur. What does he want? What is the problem? After all, if the court did not sanctify, then there was no Yom Kippur, so what is the issue? Why does he expect the people of Israel to give their lives for Yom Kippur when there was no Yom Kippur? His question apparently revolves—as he himself explains—around the court. In other words, the commandment is the commandment to sanctify the month, and the court, what it did was not sanctify the month. And since it did not sanctify the month, there was no Yom Kippur. Then the question is—really, in the Talmud itself one could have explained differently. One could have explained that they canceled Yom Kippur itself—not that the court did not sanctify the month. The Talmud itself says “a time of persecution.” In a time of persecution, they decreed against Yom Kippur, so they transgressed Yom Kippur because of coercion, and therefore he is exempt. On that the Ritva asks: what do you mean? After all, one must be killed rather than transgress even over a custom. The Ritva says: no, it means the court did not sanctify the month because of the time of persecution, and therefore there was no Yom Kippur, so there was nothing for which to give one’s life.

So the Ritva says: fine, but the court itself is still difficult. The court is commanded to sanctify the months. We read before in Maimonides: it is a positive commandment to sanctify the months. How could the court nullify sanctifying the month because of a time of persecution? To save them from Yom Kippur—what did he gain in the whole move? If the problem was Yom Kippur, Yom Kippur involves a prohibition. According to most opinions there is also a positive commandment and also a prohibition. So there is also a prohibition. Therefore one would have to be killed rather than transgress. But since here the court simply did not sanctify the month—not that there was a Yom Kippur and we desecrated it; there simply was no Yom Kippur—the only transgression there was, was the transgression of the positive commandment to sanctify the months, and that was transgressed by the court, not by us. So that is only the nullification of a positive commandment, not a prohibition. And over the nullification of a positive commandment one is not commanded to be killed. Notice—even in a time of persecution. In other words, his claim is that over the nullification of a positive commandment one is not commanded to be killed, even in a time of persecution, even in public. This rule was stated only regarding prohibitions. With regard to the shoelace—if we compare it to a shoelace—then indeed there is a bit of a problem. I’ll return to that in a moment. In any event, that is what the Ritva says.

The Ritva claims that what the Talmud says, that they did not observe Yom Kippur, does not mean that all Israel desecrated Yom Kippur. That would have been forbidden in a time of persecution; they would have had to be killed. Rather, the court, which wanted to exempt them precisely from this matter—it did not want to cause them to be killed over Yom Kippur—simply did not sanctify the month. Since it did not sanctify the month, it was not Yom Kippur, and there is no problem. But the court itself committed a transgression, after all. It annulled the positive commandment of sanctifying the month. So the Ritva says: that is a positive commandment. One may nullify a positive commandment even in a time of persecution. What is forbidden is to transgress a prohibition. That is the Ritva’s claim, and of course a number of difficulties arise here.

The first difficulty is really with the content of his words: how can it be that nullifying a positive commandment is lighter than changing a black shoelace to a white one? There, there is neither a prohibition nor a positive commandment, and nevertheless one is commanded to be killed. So what difference does it make if this is only the nullification of a positive commandment and therefore somehow lighter than a prohibition? In the end, even over something that is not a commandment at all—not Torah-level and not rabbinic—one must be killed. So why is a positive commandment less important than a mere custom or characteristic clothing?

The second point: the Ritva adds at the end that perhaps the gentiles did not decree against observing Yom Kippur; they decreed against the court not to sanctify the month. When he explains that the whole focus shifted to the court—the court in fact did not sanctify the month, not that the people of Israel desecrated Yom Kippur—then the question arises: why does he need to say this? What difference does it make? What? That’s worse. Because that is a head-on collision. Because then you could have answered: they didn’t tell them not to sanctify the month, so it is not considered that we transgressed; there was no confrontation at all. That’s certainly true. In any event, the Ritva adds this, and indeed first of all, the first question in this context is: why does he need it? Why didn’t he just suffice with saying that the gentiles decreed against the people of Israel not to keep Yom Kippur? The court made the calculation and said: wait, why should all Israel be killed? We simply won’t sanctify the month, and then there won’t be a Yom Kippur, and there is no problem. Why does he also need to add, in order to justify that decision of the court, that the gentiles decreed against the court not to sanctify the month, and not only against the people of Israel not to keep Yom Kippur?

And indeed, as an addition, the Kli Hemdah himself brings an addition and asks what you said. He brings some medieval authorities in tractate Ketubot who say that in a place where they decree against the court not to sanctify the month, specifically there the court is commanded to be killed rather than transgress. Because there the confrontation is direct, face to face, with the obligation imposed on them. The gentiles want to tell them: do not fulfill the obligation imposed upon you. There they must be killed. If they did not decree that against them, but the court, in order to solve an indirect problem, nullifies the positive commandment of sanctifying the month, then it may very well be that there is no problem at all. There perhaps they may even be permitted ab initio to do so, which would be a much better solution to the Ritva’s difficulty. After all, the Ritva asked: how did they do it? It was a time of persecution. A very good solution would be: what is the problem? The court nullified the… did not do the sanctification of the month. The court was permitted to do so because the decree was not directed against the court, but against the people of Israel not to observe Yom Kippur. But the Ritva complicates, as it were, his own case even more. Really, in order to resolve this difficulty, he adds that they decreed against the court not to sanctify the month, when in fact in such a situation it is more problematic not to sanctify the month, because that is exactly what the gentiles decreed against you, and specifically there you should have had to be killed rather than transgress. Fine—it is not certain the Ritva accepts that distinction of those medieval authorities in Ketubot, but at least the question why he needs to come to this is certainly a good question.

The additional difficulty is that it emerges from the Ritva’s words—and this is how several later authorities understood him, and this is indeed the plain sense of the Ritva—that if the month is not sanctified, the month simply continues. Even by passive omission? What? Even by passive omission? The Ritva says not. The Ritva says that over nullifying a positive commandment one is not killed rather than transgressing. That is exactly what he says. So the third difficulty is… that from the Ritva’s words—and now this already touches the laws of sanctifying the month—it emerges that if the court does not sanctify the month, the month continues. But we learned from Rabbi Elazar son of Rabbi Tzadok that if the court does not sanctify the month, it enters automatically the next day. You cannot completely play around with the month. But from the Ritva it does not look like that. From the Ritva it looks as though if the court did not sanctify the month, then it continues until they decide. There was no Yom Kippur that year. In other words, the court did not… at that time, until they eventually decided—apparently at some stage, because we see that today there are months. Why not from the Ritva? Why not? I didn’t understand. I didn’t manage to understand why specifically from the Ritva and not from the Talmud. That’s what I said before—because in the Talmud it is not certain that the court did not sanctify the month. In the Talmud one could have understood that they decreed against Yom Kippur, and there was a Yom Kippur, and the people of Israel transgressed because of coercion and therefore were exempt. The Ritva says no—it was not that the people of Israel transgressed Yom Kippur. The court did not sanctify the month, and in that way it exempted them from the problem. That is the third difficulty. Fine, that will suffice for our purposes.

Let us begin with the third point on the page here, because it continues the introduction for a moment, and after that we’ll move on to some other matters that arise here. Regarding this point, that if the court does not sanctify the month then the month continues, whereas seemingly from Rabbi Elazar son of Rabbi Tzadok it emerges otherwise. It says that if the court did not sanctify, the next day it enters automatically. In Tosafot in Sanhedrin 10b, this same Talmud and this same Mishnah with Rabbi Elazar son of Rabbi Tzadok also appear there. Tosafot says as follows: “For Heaven has already sanctified it”—that is what Rabbi Elazar son of Rabbi Tzadok says. If they did not sanctify the month on day 30, then there is no longer any need to sanctify it, “for Heaven has already sanctified it.” What does “Heaven has already sanctified it” mean? Tosafot says: there are some who explain that the Heavenly Court always sanctifies it at the actual conjunction. The Heavenly Court doesn’t wait for day 30 or day 31. The moment the actual conjunction occurs—somewhat similar to what you said earlier—the Heavenly Court sanctifies it. Now if we are waiting, in some sense, after the conjunction, then the month has already been sanctified. This also ties a bit to what I said, that “not in its proper time” really means not sanctifying at the time of the conjunction, but let us leave that now.

Tosafot says: and that does not seem right. Because if so, then even in its proper time it would already have been sanctified in Heaven. And there would be no such distinction between “in its proper time” and “not in its proper time.” That actually rejects what I suggested before. Rather, it seems as Rashi explains: on day 30, the Heavenly Court waits for the earthly court, perhaps they will postpone the month, meaning establish the new month for the day after. But on day 31, when it is impossible that they have not sanctified it by then—from the moment day 31 begins, that’s it, there is no more point waiting. It is absolutely clear that the earthly court will have to sanctify it today, right? There is no possibility after day 31. So Heaven sanctifies it at dawn. Okay? So what is Tosafot really saying? Tosafot says that the Heavenly Court, since they do not sanctify it below on day 30, sanctifies it from the morning of day 31. And there is no doubt here, because certainly that day will be established. Fine? That is how he explains it.

What? Why specifically from the morning? Ah—that in just a moment. Why did he say specifically from the morning? Yes, yes, that is what appears. In a moment we’ll see—that is an interesting point, and it bears on our issue. In any event, from Tosafot’s words it appears that the Heavenly Court sits and decides to see what the earthly court will do. If the earthly court established it on day 30, fine. If the earthly court did not establish it on day 30, then it is clear that they will establish it the next day. There is no other possibility. Since that is so, they no longer wait for them; the Heavenly Court already establishes it from dawn of day 31. Therefore, the new month does not need sanctification if it is “not in its proper time.”

But what do we see from Tosafot’s words? In Tosafot’s words we see that the Heavenly Court sits and sanctifies the month, and it waits for the earthly court to see whether it did or did not do it. And the whole reason the Heavenly Court sanctifies the next day is because it knows that the earthly court will also sanctify it. In other words, if we leave it to the earthly court, they will do it, and the Heavenly Court says: fine, if in any event it is already known in advance, then we won’t wait for the earthly court. But what would happen if the earthly court decided not to sanctify it even on day 31? Let’s send a messenger upstairs: gentlemen, stop—we are not sanctifying this month at all. Not even on day 31. If the whole matter is really some kind of assessment—the Heavenly Court says, well, the earthly court will certainly sanctify on day 31, so we too will sanctify it, because it doesn’t really matter; it is already known in advance—but if there were an active decision by the earthly court not to sanctify the month on day 31, then maybe indeed it would not be sanctified. The whole point that it is “sanctified automatically” is not really automatic. It is because the Heavenly Court thinks ahead about what the earthly court will do. The earthly court will sanctify on day 31? Fine, then we too will sanctify it from the morning. And what does the sanctification of the earthly court accomplish? What? What does the sanctification of the earthly court accomplish? That is really what it means—that it doesn’t accomplish much. It means the earthly court need not sanctify because it is already sanctified on its own. But we obligate them to do it. Why—so what do we want; what are they doing then? What do you mean? “They do not sanctify.” They sanctify, and then it’s good to sanctify below. But according to the law, according to Abaye and Rava, from its own side it doesn’t need sanctification. So why? Because even if it did need sanctification, it was already clear from the morning that today the court would sanctify it. So the Heavenly Court says: why wait until the court sits? It’s already known in advance; we sanctify it from the morning. But wait—you’re still saying that the earthly court has the power to sanctify, but why do they need to do it? No, no. If there were concern that the earthly court would not sanctify, then we would not do this. We say: we estimate that they will do it, so let us do it. Why should the earthly court below do it? Exactly—that is the question how to understand what the Heavenly Court is doing. It could be that the Heavenly Court is just a kind of declaration. They tell the earthly court: listen, you sit there—what’s the issue? This day is inherently already the new month. When the earthly court sits, it is merely to declare it. That is the meaning that the Heavenly Court sanctified it. The intention is that on Yom Kippur, in any case, it already happened. But in Tosafot it really doesn’t look that way, and in a moment we’ll see why.

In Tosafot itself it seems that the Heavenly Court performs an active act. It is not some literary expression just to tell you that there is no need for sanctification. The Heavenly Court performs an act of sanctification in place of the earthly court. And why? Apparently because they don’t want to wait until the earthly court sits and so on. From the outset, it is already the new month. Why not? Why don’t they want to wait below? Because there is some practical concern—for example, someone wakes up that morning and wants to know whether today is the new month or not. So should he now have to wait until the earthly court sanctifies or not? They say: no need to wait. If you know it is day 31, it is already the new month even without the earthly court sitting. After all, there was always a need to get used to this in the period when they relied on sighting: people did not know what day they were in. A regular court—forget “below” and “above”—could decide in the afternoon that today is the new month. Then it turns out that in fact the whole day was the new month; we just didn’t know because the court hadn’t determined it yet. But after they determined it, the whole day had been the new month. So the Talmud says: if there is a situation where this is known in advance, then let’s not leave everyone waiting until whenever the court happens to sit. Heaven already did it, and that’s it—it already exists. But still, the conception is that some action is taking place in Heaven. And what is it based on? On the assessment that the earthly court will in any event do it. But if the earthly court decides not to, do you understand? Tosafot in fact leaves the earthly court’s autonomy fully intact. He is only explaining this expression of Abaye and Rava, that “from its own side” does not mean it is no longer in the hands of the earthly court, or that it is automatic and forced upon them. No. He only says that where it is already known in advance, then indeed there is no need. But if the court makes an active decision—no, we don’t want today—they sat on day 30 and say this month will not be sanctified until further notice, then the Heavenly Court also will not sanctify it, since the whole reason the Heavenly Court sanctifies it is only because it is known that the earthly court will sanctify it. So if that is so, that is what the Ritva said. The Ritva indeed says that if there is a time of persecution and the earthly court decides not to sanctify the month, then the month will not enter automatically on day 31. That is what we asked against the Ritva from Rabbi Elazar son of Rabbi Tzadok. No—the Ritva follows Tosafot, and it will not enter automatically. Until the earthly court releases the matter, it will not be the new month.

Now I can show you from several directions—we don’t have time to get too deeply into it here. What? On day 31? If they did not sanctify. Yes. Do they say Ya’aleh VeYavo at night? Yes. But the court only sanctifies in the morning. No—the Or Sameach explains it that way. It’s a practical ramification of this whole issue. After all, the Shulchan Arukh writes—this comes from Tosafot and then from the Shulchan Arukh afterward—what happens on the night of the new month? If one omitted Ya’aleh VeYavo, does one repeat or not? It is known that they sanctify tomorrow morning. If sunset passed and the court did not sanctify? So I’m saying—in another moment I’ll get there, because I need to present the authorities who disagree, and then we’ll see the practical consequence.

So that is Tosafot’s view, and following Tosafot one can certainly say that perhaps the Ritva also understood that way. Then the month really depends entirely on the court, and the court can determine a month of twenty-two years. Fine—that’s how he decides, he does not sanctify this month. By the way, there are medieval authorities from whom it appears, from various Talmudic passages—I am not going into details now; there are several proofs—that there could be a month of any length we want if the court decides so. In other words, everything is entrusted to the court. But then Rabbi Elazar son of Rabbi Tzadok does not undermine the authority of the court to determine the month, and he is not telling them that you can only play between day 30 and day 31. If they decide, they can do it as long as they want.

By contrast, Rabbenu Yonah on that same topic in Sanhedrin says explicitly not like that. He writes: “If it was not seen in its proper time, they do not sanctify it, for Heaven has already sanctified it.” Explanation: since when it is not in its proper time it does not depend on the opinion of the court—listen to the wording—it does not need sanctification at all, because in any event it is already sanctified. And “sanctification by Heaven” means that the month cannot be delayed any further, into the next month. But if it was seen on day 30, they can sanctify it because the matter depends on their view, for if they sanctify it, it is sanctified, and if not, it is not sanctified, as it says in the chapter “If they do not recognize”: “which you shall proclaim them in their appointed times”—you, even if in error, even if under duress, even if misled.” Rabbenu Yonah writes explicitly that Rabbi Elazar son of Rabbi Tzadok, who says that on day 31 “Heaven has already sanctified it,” is limiting the court’s autonomy. They can determine only one day—day 30 or day 31. More than that, no.

He goes even further. The basis of his disagreement with Tosafot and the Ritva starts even earlier: what does it mean “Heaven has already sanctified it”? Tosafot, and following him probably also the Ritva, understand that “Heaven has already sanctified it” means that some Heavenly Court sits and decides to sanctify day 31. Rabbenu Yonah says: what are you talking about? There is no Heavenly Court and no such thing. “Heaven has already sanctified it” is a literary way of saying that it is forced upon you; it is not up to you. If you did not sanctify on day 30, then day 31 is sanctified. That’s all. It is not that the Heavenly Court sat and sanctified and looked to see what the earthly court would do. It is a literary phrase—“Heaven has already sanctified it” means that it is already sanctified; it is no longer in your hands. All that is in your hands is to decide whether it is day 30 or day 31. So this is, of course, directly against the Ritva. And the core of the dispute is the question of what “Heaven has already sanctified it” means. According to Rabbenu Yonah, it means it is already sanctified, not in your hands, meaning it does not depend on the court. The court can determine whether it is day 30 or not. That is all. It has no further degree of freedom. There is no month longer than 31—really more than 30; that is, the new month cannot begin later than day 31.

Now I return to your question. One of the implications really arises from this. In Berakhot, the Talmud on 30b says that one does not repeat Ya’aleh VeYavo on the night of the new month, because they do not sanctify months at night. Even before that Talmud in Berakhot—you asked before, someone here asked—why does Tosafot say that the Heavenly Court sanctifies it at dawn of day 31? Why at dawn? Can that be said according to Rabbenu Yonah? Certainly not, because nobody is sanctifying anything. On day 31 there is no process of sanctification being carried out by the Heavenly Court. So certainly it happens by itself from the eve of the new month, from the moment the night begins. Tosafot, therefore, says “from the morning,” because Tosafot, consistent with his own view, understands that there is some act of sanctification by the Heavenly Court. If they sit—yes, a Heavenly Court—“the kingship of Heaven parallels earthly kingship,” and what the earthly court does, the Heavenly Court does as well. And if months are not sanctified at night, then the Heavenly Court too sanctifies it in the morning, because it is following the earthly court. In other words, what they will do, it is basically doing just before them. Therefore it does it from the morning. And here lies the implication, because what happens now?

The Talmud—Tosafot there says in Berakhot that on the second night one certainly does repeat, why? Because it was already sanctified the day before. It was automatically sanctified from the previous day. Tosafot himself disagrees with that opinion and says no—even on the second night one does not repeat. And so too the Shulchan Arukh rules in section 422, that one does not repeat even on the second night. Why? Because they do not sanctify the month at night. So the Or Sameach, in the laws of prayer, chapter 10, explains this in light of Tosafot in Sanhedrin that we brought. Since even on the second night the sanctification is really carried out only in the morning, because they do not sanctify the month at night, therefore even on the second night, if he did not say Ya’aleh VeYavo, he does not repeat, because they do not sanctify months at night. There is a sanctification, and it is done the next morning. So with Ya’aleh VeYavo before that—no. There, that is the practical ramification. According to Rabbenu Yonah, of course, one cannot say such a thing. According to Rabbenu Yonah, the new month is certainly in effect from the beginning of the night of day 31. In other words, there is a practical consequence for these metaphysical determinations. Yes, right—only with regard to repetition. Fine, that is another discussion, the question of what… okay, you’re right. That too would need further clarification, but we won’t go here into the whole Ya’aleh VeYavo topic. I only brought it as an example of a practical consequence.

Perhaps another example: Maimonides in the laws of sanctifying the new month, chapter 3, says: “A court that sat all day on the thirtieth and no witnesses came, and then rose early at dawn and declared the month full, as we explained in this chapter; and after four or five days distant witnesses came and testified that they had seen the moon in its proper time, namely on the night of day 30—even if they came at the end of the month,” yes, already twenty-five days had passed, toward the end of the next month—then the witnesses arrive and inform us: do you know, that new month, we saw it on the night of day 30. The court had already determined the new month on day 31 because no witnesses came. Now suddenly they arrived. What do we do? This is one of those fictions we spoke about before. “They threaten them severely and confound them with questions and burden them with examinations and scrutinize their testimony, and the court tries not to sanctify this month, since it has already been publicized as a full month.” They already established it as full, so they try by various tricks and methods to undermine their testimony, to disqualify it, so that we won’t have to reverse the month.

But, Maimonides says in the next law: “If the witnesses stand by their testimony,” despite not having managed to confuse them, “and it is found consistent, and the witnesses are known and intelligent people, and the testimony was properly investigated, then they sanctify it and count that month again from day 30, since the moon was seen that night.” So Maimonides says that if it doesn’t work, because we failed to confuse them, then we move the whole calendar back. Meaning, it turns out that if that month was Tishrei or Nisan, then in fact it turns out that we did not celebrate the Jewish holiday correctly. They do not really move the month back, but they decide retroactively that the new month was day 30 and not day 31. Fine? So then we observed Passover one day late. Yes—what’s the problem? Wait, wait, wait—that is not simple at all. After all, they do things for vegetables and all these other concerns. The court sees the month and does not sanctify it because they have calculations—that there won’t be vegetables and all sorts of things—there are all kinds of considerations for the benefit of Israel. So here, after they had already made the month full, he goes back retroactively and sanctifies it? That is with intercalating the year, not with sanctifying the month. That is what he says. Since this was based on a mistake, and the mistake became clear, you go back and sanctify it on day 30. But they themselves see it and say: I’m not sanctifying it now because they have their own considerations. No—they did not see it. We are not speaking about their seeing. No—if they saw it, then they cancel it? They want to sanctify based on witnesses. That is the commandment. It doesn’t matter that you yourself see it. You must sanctify based on witnesses. There are considerations they bring in. Here Maimonides says that if you don’t have such considerations—maybe if you do have considerations, you can do it. If you don’t, the whole point is that they simply had already established it. What? It is forced upon them. So how could they go and not observe Yom Kippur according to that view? Surely at some point between Rosh Hashanah, between the thirtieth of Elul and the thirty-ninth of Elul, the court itself saw it. You are now asking about the Talmud in Hullin? Yes, of course. Maimonides certainly will not go with the Ritva—that is obvious. That is exactly the point.

So in Maimonides here we see that if—after all, this is just an example—that indeed in Rashi and Tosafot it seems they disagree with Maimonides, and according to them one does not go back. That is, if they established it on day 31, then that does not revert. And why not? It may be that this itself is the dispute. If indeed we follow Tosafot in Sanhedrin, then Tosafot’s view here is also consistent: that the Heavenly Court sanctified day 31. So what does it help that now witnesses came later and informed us: “We saw the moon on day 30”? It is already sanctified. But if we understand like Rabbenu Yonah—and Maimonides apparently understood like Rabbenu Yonah—that nothing happens, there is no sanctification from Heaven, it was not an act of sanctification—rather, it simply became clear that this was the new month—well, now it has become clear that that was not correct, and therefore it reverts. What is the problem if the court sanctified it on day 31 and witnesses testified retroactively that it was day 30? The court did not sanctify on day 31—it was sanctified on its own. But this was a mistake. It’s a mistake. On day 30 it turns out that the testimony returns it to day 30. If the court did nothing and it happened automatically, then it reverts. But if the Heavenly Court sanctified on day 31, then it sanctified it. It was not legitimate for it to sanctify? Why not legitimate? Because retroactively it turned out there were witnesses. Once the Heavenly Court is the relevant court, then in the end when it sanctified, that is what determines—even if in error, even if intentionally. After all, it replaces the earthly court. So there really was an act of sanctification on day 31. Once there was an act of sanctification, that’s it. In Maimonides we see a conception that there really was no act of sanctification; it simply happened on its own. So if it was a mistake, then it simply did not happen. That is like Rabbenu Yonah. And Tosafot follows his own approach, like Tosafot in Sanhedrin, where he understands that there was an act of sanctification. After that it’s over. If the court sanctified on day 31, then it sanctified. What? But why regarding the Heavenly Court? Maybe… it could be, it could be, I’m not ruling it out definitively. Fine—that is one point.

Maybe one remark before I get to the main point, as much as I can manage. What is this reasoning really, that for a positive commandment one need not give up one’s life? After all, we asked: for a positive commandment one need not give up one’s life, but even over a shoelace one must do so in a time of persecution. So how can the Ritva tell us that for a positive commandment one need not give up one’s life? Here, within the discussion, the Kli Hemdah notes this point—it is a very interesting point. His claim is: why indeed, if I give up my life—say they decreed against me not to sanctify the months, and I give up my life—then what has happened? In any event the month will not be sanctified, right? Because I gave up my life. If they tell me not to perform a positive commandment, and I go to perform the positive commandment and they kill me, then the positive commandment in any event will not be done. Since the positive commandment in any event will not be done, there is no obligation to give up one’s life. When is there an obligation to give up one’s life? When by giving up our life we really gain what we want to gain. If they tell me to violate a prohibition—just a second—if they tell me to violate a prohibition, then if I give up my life I will not violate the prohibition, right? But if they tell me, do not perform a positive commandment, and I give up my life, I still will not perform the positive commandment. So why give up my life?

So the distinction—just a second—the distinction is not between a more severe and less severe category of transgressions. The question is whether by giving up your life you gain the thing you are trying to gain. A shoelace is not more important than a positive commandment, but in the case of a shoelace, if I give up my life, then there will not be someone walking around with the wrong-colored shoelace, black instead of white or the other way around. So there it makes sense to give up one’s life. But with a positive commandment, even if I give up my life, in the end there will be nobody to perform the commandment. Therefore one is not commanded to give up one’s life. That is his claim there. What? You could have said they should sanctify the month and afterward they’ll be killed. Ah, so indeed that is really a big question here. That is a good explanation for the distinction, because otherwise it is very difficult. The truth is, that only says we are speaking about very specific situations. Because if they tell me, “If you perform this positive commandment, we will kill you,” and I perform the positive commandment and afterward they kill me—well, I performed it. Right. What is the problem? And the month is sanctified. Yes, exactly. The positive commandment of sanctifying months—they would sanctify the month and afterward they would be killed for sanctifying the month. Fine—but the month is sanctified. The people of Israel… He sets up the Ritva in a situation where they will kill them if they go to sanctify the month, if they go to perform this positive commandment, and then giving up one’s life would not help because it will not be fulfilled in any case. That is a somewhat strained reading. Why assume this happened specifically in that way? The straightforward scenario is that they tell them: if we see that they are going to do it—look, they did it—kill them. So I don’t know. That is one remark.

But indeed the reasoning itself needs clarification. Why is this positive commandment worse than shoelaces? There is a Ran in the topic of Elisha “of the Wings,” in the Talmud in tractate Sabbath 49. The Talmud there tells about Elisha of the Wings. Why was he called “of the Wings”? Once they decreed not to lay tefillin: anyone who lays tefillin, they will pierce his brain. Elisha used to wear them and go out to the marketplace. A certain officer saw him, and he ran from him. When the officer caught up with him, Elisha took them off his head so that he would not see and held them in his hand. The officer said to him: what do you have in your hand? He said to him: dove’s wings. He opened his hand and indeed what was inside was dove’s wings—a miracle happened for him. Therefore they called him Elisha of the Wings.

There the Ran asks: “How did he do this? We hold in the chapter ‘The Judgment Is Concluded’ in Sanhedrin that in a time of persecution even over a shoelace one must be killed rather than transgress.” So how did he take off the tefillin because this officer had decided that one may not wear tefillin? One should be killed rather than transgress. The Ran says: “This applies to transgressing prohibitions, but if they decreed the cancellation of a positive commandment—since he is not actively transgressing, and also because they can prevent him against his will, by placing him in prison and the commandment will thereby lapse on its own—therefore he lets it lapse and is not killed.” Like the Ritva in that sense—that over a positive commandment one is not killed. The question is on what grounds. He combines here two considerations. I don’t know if they are two reasons each standing on its own, or only together. He says: first, since he is not actively transgressing; and second, because they can cause it to lapse against his will by putting him in prison. Therefore, since they can ensure in any case that he will not fulfill it, there is no point giving up one’s life for it.

So I don’t know—perhaps he means the Ritva’s reasoning, this reasoning of the Kli Hemdah. But simply speaking, it seems to me that is not his point. Rather, he is also distinguishing between passive omission and positive action, and this needs to be understood well. A shoelace is considered positive action even though there is no commandment there at all. And a Torah-level positive commandment, since it is passive omission, then one does not give up one’s life, because the point is apparently not to perform an action against the Torah, even if one’s life is threatened. If I do no action, but merely fail to fulfill a commandment, for that I am not commanded to give up my life.

It is somewhat similar to the Kli Hemdah’s reasoning. By the way, we find a famous Rabbi Akiva Eiger about doubt. After all, with a Torah-level doubt we are stringent. Rabbi Akiva Eiger discusses what happens in the case of doubt regarding a positive commandment: does one also need to be stringent or not? Regarding tekhelet, for example, that is one of the consequences. If there is tekhelet about which we are in doubt whether it is valid or not—the Radzyner Rebbe, in his book, discusses this Rabbi Akiva Eiger. He claims that Torah-level doubt requiring stringency applies also to positive commandments, but Rabbi Akiva Eiger says no. Why not? Because the whole rule that Torah-level doubt is treated stringently for prohibitions is to be stringent in such a way that in any event I do not transgress the Torah. If I have some doubtful prohibition, I am stringent with myself and do not perform that act, and then I certainly did not violate a prohibition. But in the case of doubtful positive commandments, even if I do it out of doubt—even if I am stringent and do it out of doubt—it is still only doubtful whether I did it or not. It is not that I am now certainly on the safe side. I have doubtful tekhelet; I don’t know if it is valid or not. Seemingly, since Torah-level doubt is treated stringently, I should wear it anyway. Why? Because Torah-level doubt is treated stringently. Rabbi Akiva Eiger says: what are you talking about? Why? After all, here too, even if I wear the tekhelet, on the possibility that this tekhelet is not the correct one, I did not fulfill the positive commandment. Torah-level doubt requiring stringency with prohibitions is in a case where, if I am stringent, I am definitely safe. But with a positive commandment, even if I am stringent, it is not certain; and there there is no obligation to be stringent. So people ask: what do you mean—why isn’t there an obligation? Fine, you increase the chance. Increasing the chances is nice, but the question is whether that is included in the obligation of Torah-level doubt requiring stringency. He says that this obligation exists only if you come out certainly clean. If you do not come out certainly clean, then there is no Torah-level obligation to be stringent; at least on the Torah level there is no obligation. There is no loss in doing it. No loss, fine, but the question is whether there is an obligation to be stringent. That is another argument—what do you care? Do it; there is nothing to lose. Fine, but the question is whether one is obligated to do so because of Torah-level doubt requiring stringency. He says one is not obligated. So here too, the consideration is fairly similar. You are stringent in Torah-level doubt when you are certain to gain the benefit, and if even the stringency will not necessarily give you the benefit, then perhaps you need not be stringent at all. And again, it seems to me that here too, people always phrase it as a distinction between positive and negative commandments, but it is not so simple; it depends on what kind of doubt it is. Suppose I have doubt about nullifying a positive commandment. I am in a situation such that if I remain in it, I may be nullifying a positive commandment, but if I do some act then I will definitely not have nullified it. Then I would need to be stringent also with positive commandments, parallel to what we saw with sanctifying the month. Fine? The court—I don’t know—is in doubt whether they are required today to sanctify the month or not. I don’t know whether they are required. To be on the safe side, I will sanctify. Fine? If for some reason they are in some doubt—why not? To be stringent is certainly good, because if they sanctify then they are surely okay. In fact there are situations even with positive commandments where stringency leads you to certainty. So the distinction is not always simply positive versus prohibition in terms of whether you are playing it safe or not. Fine, that was just a side remark.

The point with which I really want to finish is what the Ritva actually says. Why did the Ritva add there that perhaps they decreed against the court not to sanctify the month? We asked why the Ritva added this point, right? Why didn’t he suffice with what the Talmud says—that they decreed against them not to keep Yom Kippur, and then the court, in order to spare them the need to die in sanctification of the Divine Name, because they would have been obligated in a time of persecution, simply did not sanctify the month, so there was no Yom Kippur and no problem. Why did the Ritva add that the gentiles also forced the court not to sanctify the month or threatened the court not to sanctify the month?

Here the Kli Hemdah says that for the court not to sanctify the month, there has to be a reason. In other words, they need to do this for some reason. Otherwise they are not allowed simply to fail to sanctify the month. There must be some reason, like the court’s power to confiscate property or similar actions where the court has authority, but it must exercise that authority for some reason. If they do not act for an appropriate reason, then they are not allowed to do it. Notice: of course it will still take effect, because “you,” even if under duress, even if intentional, even if mistaken. But they are not allowed to do it. Those are two different planes. There is no claim here against “you,” even if intentional. If the court deliberately, wrongfully, decides not to sanctify the month although it should have, it still works. Fine? But the question is whether it is permitted.

So he says that basically, in order for it to be permitted, they need a reason. Otherwise, why in the world should they not sanctify it on time? So he says—and I found this from him elsewhere too, where I was already surprised, and now I discovered it here as well—but this is his claim, the Kli Hemdah. He says that if the court does not sanctify the month because maybe the people of Israel will not observe—meaning, if they observe Yom Kippur they will have to die—that is not a reason not to sanctify the month. Why? Because there is nothing greater than dying in sanctification of the Divine Name. In other words, what, why is that a reason not to sanctify the month? All that would happen is that they would fulfill the commandment of sanctifying the Divine Name. What, in order to prevent them from fulfilling the commandment of sanctifying the Divine Name, that is considered a justified reason not to sanctify the month? So that is what he says.

Where else did I see this? I wrote it down. It is Kli Hemdah somewhere else. I once used to go over it every week—it was my Sabbath delight. In the portion of Vayeshev he brings the words of the Levush, who says that unlike Purim, on Hanukkah there is no rule of feasting and rejoicing. On Purim there is feasting and rejoicing for the Jews; on Hanukkah there is no rule of feasting and rejoicing. The Levush says: why? Because there was no rescue of lives there. On Purim there was a rescue of lives; on Hanukkah there was not. So what do you mean there was no rescue of lives? He brings the Levush—sorry, yes—the Levush says there was no feasting and rejoicing because there was no rescue of lives. There is no rule of feasting and rejoicing on Hanukkah because there was no rescue of lives there. And the Taz is astonished by him. Notice what he is astonished by. He says: after all, causing someone to sin is worse than killing him. He does not say there was indeed a rescue of lives. You are right, there was no rescue of lives, but there was spiritual rescue. And spiritual rescue is greater than physical rescue, because causing someone to sin is worse than killing him. You can dispute that argument in many directions, but that is what he claims.

It is known regarding desecrating the Sabbath, for example, there is a dispute between Tosafot and the Rashba: if I hear on the Sabbath that they are taking my daughter—gentiles kidnapped her and are going to raise her as a complete gentile—am I allowed to desecrate the Sabbath in order to save her? The Beit Yosef brings, at the end of section 306, a dispute between Tosafot and the Rashba, and it is not agreed that I am permitted to desecrate the Sabbath for that, even though if she were in mortal danger I certainly could desecrate the Sabbath. So this principle, “causing someone to sin is worse than killing him,” comes with very significant reservations. In any event, as Jewish law certainly one may desecrate the Sabbath—let there be no misunderstanding. It is hard to understand that opinion, but such an opinion exists. In any case, the Shulchan Arukh rules… that is the beginning of the whole topic of causing sin versus killing. Yes, he says they did not have a good concrete example. What? They didn’t have a good concrete example? No, no, no—that is not the issue, and not according to Jewish law either. It is not that Tosafot claims one may not desecrate the Sabbath for that, but the Shulchan Arukh does not rule like them.

In any event, that is what the Taz asks. So the Kli Hemdah says: what does it mean there was no rescue of lives? It seems to me the Taz also agrees with this; he is just asking something else. Why was there no rescue of lives? On Hanukkah they certainly, certainly were rescued. So he says: what do you mean? If on Hanukkah they had not won the war, what would have happened? They would have had to transgress the commandments—that is, not keep the new month, circumcision, Sabbath, and so on. They would have given up their lives and all died. So what happened here? There was a rescue of lives? What rescue of lives? They would have sanctified the Divine Name, given up their lives in sanctification of the Divine Name, and there are no lives greater than those. Even though they die, there are no greater lives than those. So there too he brings this in the name of the Rebbe of Gur. There too you see in him a certain conception. This actually depends on the Talmud in Yoma, yes—the question whether one desecrates one Sabbath for him so that he may observe many Sabbaths. What do you see there? Why may one desecrate the Sabbath to save a life? Because in life one can fulfill many commandments, right? The value of life is not an independent value. The value of life is because in life one can fulfill many commandments. As opposed to the other source brought there in the Talmud, “and live by them,” from which it really seems that the conception is that life itself justifies Sabbath desecration, not because one can fulfill many commandments with it. This has various practical consequences, temporary life and so on. So something like that conception is found here too: the entire value of life is only because one can fulfill commandments with it. So if the greatest commandment is to give up one’s life, and that is worth all the commandments I would fulfill afterward—after all, the Torah itself tells me to give up my life—then apparently this commandment of sanctifying the Divine Name is worth more than all the commandments I would fulfill later while alive. So fine—what is the problem? Why would that be a reason not to sanctify the month because of that? Let them give up their lives. That is what he says.

In any event, we find similar considerations in two additional places. I’ll do this briefly, and with this we’ll finish. One point: the Rema writes that if they want to force someone to commit a grave transgression, we do not desecrate the Sabbath on his behalf in order to save him. Fine? If they force someone to commit a grave transgression, we do not desecrate the Sabbath in order to save him from the transgression. To save a life, we desecrate the Sabbath, but to save a person from a transgression—that is not worth my desecrating the Sabbath. We do not say to a person: sin so that your fellow may merit. Why is my Sabbath desecration worth less than the transgression he is about to commit? So we do not desecrate the Sabbath.

The Mishnah Berurah writes about this: what if it is a transgression over which he would in the future have to give up his life? Then that is already desecrating the Sabbath in order to save a life, not desecrating the Sabbath to prevent transgressions. Seemingly, obviously it should be permitted, right? Life-threatening danger overrides the Sabbath. The Mishnah Berurah says: we do not say to a person, sin so that your fellow may merit. But if the coercion concerns one of the three cardinal sins—idolatry, sexual immorality, or murder—and he estimates that the coerced person will give himself over to death for this, then perhaps one must desecrate the Sabbath so that he not come to that. In other words, what the Rema says, that it is forbidden to desecrate in order to prevent the transgression, but if the person will give up his life because it is one of the three cardinal sins, then one should desecrate the Sabbath in order to save him—because I am saving the life, not the transgression, and in order to save a life one certainly desecrates the Sabbath.

But notice the wording of the Mishnah Berurah: “perhaps one must.” What—this isn’t obvious to you? It should have been completely obvious. What do you mean “perhaps one must”? He has some hesitation—maybe yes, it seems to me one should. Maybe, maybe not. So one could perhaps say because of the doubt: maybe he won’t actually give up his life. But even doubtful danger to life overrides the Sabbath. It seems to me, though, that the point is different. Why am I giving up my life in such a situation? A great commandment. Exactly. After all, I give up my life, in practice… you can phrase this in several ways. I can really say that in such a situation I am not desecrating the Sabbath—what am I desecrating the Sabbath for? What am I desecrating the Sabbath for here? Seemingly I am desecrating the Sabbath in order to save the life of that Jew, because he will give up his life. But why am I desecrating the Sabbath—to save him from the transgression? Because to save his life there is another route: he could commit the transgression. True, he is commanded not to commit the transgression and to give up his life. But am I commanded to desecrate the Sabbath so that he should not commit a transgression? No. The Rema writes that I am not. Rather what? To enable him to fulfill another commandment—I am not commanded for that either. This is a different discourse. Saving life because life itself matters. The wording of the Mishnah Berurah is: here the issue is not the transgression but the life. So I am asking: why is it only “perhaps”? I’m not asking why the Mishnah Berurah rules this way. I’m asking why it wasn’t obvious to him. Why did he have a side to think otherwise? He says “perhaps”; he leans toward saying one should. What does “leans toward” mean? Why wasn’t it obvious? Because giving up one’s life in such a case—we understand it naturally as giving up one’s life in order to save life? Not exactly. It may be that it is giving up one’s life in order to avoid the transgression. Since, after all, life itself is not what is on the line here—you can commit the transgression and your life will be spared. What will you say? That he is commanded to give up his life in order not to commit the transgression. But am I commanded to desecrate the Sabbath so that he should not commit the transgression? No. That is what the Rema says: for transgressions, I am not commanded to desecrate the Sabbath. So the fact that he is in some bind, because he needs to give up his life so as not to commit the transgression—well, what can I do? In the end, why do I give up my life? I give up my life not for the sake of life, but for the sake of preventing the transgression—and for that it is forbidden to desecrate the Sabbath. Of course, in practice according to Jewish law yes, but I am only explaining why for the Mishnah Berurah this was not so simple. This is somewhat like the consideration we saw in the Kli Hemdah. There are several other places one can see such a consideration, but that is not for here.

Maybe that is the meaning today, because the fact that he would transgress—and by being killed over a transgression, those are the greatest lives. Yes, that is the second formulation. I said there are several formulations. Then it is exactly like the Kli Hemdah. Yes. But what does the Minchat Hinukh rule? Not like the Kli Hemdah. Yes, but Abravanel does not connect it that way as a conceptual distinction. Fine—therefore it remains possible.