Answer

Dr. Roznek, hello.

Thank you for your words. I am writing what follows without sufficient in-depth study, because of the breadth of the halakhic and factual scope and because of lack of time. Since you laid out your position to me in detail, I felt I should respond.

It seems to me that there is a major difference between legumes and the seven clean days, mainly in two respects: 1. the nature of the law under discussion; 2. the grounds for canceling it.
1. As for the nature of the law, the seven clean days are a custom or a law (after the daughters of Israel adopted it, some claim it became law, since the Talmud itself calls it “a matter of law”). I am not sure it is actually law, but in any case it is not merely a concern as in the case of legumes (in my column I distinguished among these three categories). With regard to a custom or a law there can be a problem even if the reason no longer applies, unlike legumes, which are at most a concern that has lapsed, as I explained in my article. Admittedly, it is true — and I noted this as well — that these problems regarding canceling customs and laws are not a “wall,” and sages throughout the generations have canceled even laws and certainly customs. Still, the difference remains in place.
2. As for the grounds, in the context of the seven clean days there are arguments for canceling it because the reason has lapsed, and arguments because of distress (halakhic infertility and hormonal intervention). In the case of legumes, the main argument is that there is nothing to cancel, because there is no such law (it is a concern, not a law). The distress there is secondary — desecration of God’s name — not the inability to eat rice. Therefore, the lapse of the reason (that there is no concern) in that context is not an argument for canceling the law but an argument that in such a situation there is no such law in the first place.
None of this is to say, of course, that the argument to cancel the seven clean days is incorrect. I have not gone deeply enough into the matter, so I have not formed a position on it (and certainly I am not familiar with the relevant medical facts). Likewise, I definitely identify with the protest against the conservatism that has spread in our circles and the fear that gives birth to it. In that sense, indeed, our views are similar.

As for the claim itself that the reason for the seven clean days has lapsed, I am not sure that claim stands on its own. Even if it is possible to distinguish between a niddah and a zavah, in practice this will not always be done (in addition, this too requires examinations in doubtful cases, if I understood you correctly — and after all, we are against unnecessary examinations). That is to say, the grounds for canceling the seven clean days require a combination of two claims: the reason has weakened, and there is a great need. Neither one stands on its own, and neither by itself can constitute grounds for cancellation.
Therefore, if I understand correctly, behind all the arguments you raised — which all deal with harms and distress — stands the assumption that the reason has lapsed. Without that, it seems to me that most of these arguments do not hold water. This is difference no. 2 that I pointed to above.

You raised several arguments dealing with distress and difficulties that would require canceling the seven clean days. I must say that I do not agree with some of them, and if one does not accept the assumption that the reason has lapsed, I agree with none of them. So we are back to the question whether the reason really has lapsed.
Now I will try to explain briefly, and as you will see, most of my comments concern only your presentation. You add arguments that do not really add to the claim that the reason has lapsed. Halakhic infertility is the main argument regarding the need for cancellation, and most of the additions here do not help. If there is reason to worry about infertility, that is enough; and if not, then these arguments add nothing.
I will repeat again that I am writing without deep study, since I have not gone into the depths of this topic. I apologize for the brevity and superficiality, which are not appropriate to so weighty an issue.
These were your reasons:
1. Unnecessary hormonal intervention in a woman who is completely healthy.
I do not know the medical facts, but distant concerns about interventions do not always justify a halakhic change. Almost everything in the world is presented as problematic and harmful in certain contexts (from drinking coffee to smoking). This requires a more serious investigation of how problematic such intervention really is. Of course, I do not have the specific data or medical knowledge.
2. Damage to human dignity because these couples need invasive examinations, treatments they do not need by virtue of being healthy people, and must bear the negative stigma of infertility although they are not in fact infertile at all.
If it is necessary, then this reason is beside the point. The infertility is the problem, not the stigma of infertility. As for the damage caused by tests and treatments, see my comments in the previous section.
3. Severe harm to the woman’s physiology, and in effect her “castration,” because she loses her days of desire, which occur precisely during those seven clean days, parallel to the rise in estrogen levels in the seven days after menstruation (after that these levels decline).
I doubt whether there is indeed a significant difference in desire on these days. In any event, this factor always existed, and the sages were not concerned with it. One must distinguish between differences that may exist academically and their practical significance.
4. Disrespect for the woman’s modesty and her bodily autonomy, as well as causing a great waste of time and money through invasive and unnecessary gynecological examinations by “purity examiners” (a new Jewish profession our mothers never knew, founded by the Puah Institute), in order to distinguish between blood originating in the uterus and blood originating from repeated abrasions of the cervix as a result of 15 “examinations” performed by the woman month after month.
I do not dismiss new Jewish professions, so long as they are necessary or useful. If such examinations are indeed required in the seven clean days, then why not help the woman distinguish one kind of blood from another? The disrespect to autonomy and modesty does not seem significant to me. Just as a woman goes to a doctor for tests when there is a need, and he probes her body. The question is whether there is a need for this or not. The claims of disrespect are added here unnecessarily. If there is no need, then we need not invoke disrespect in order to say this should be abolished. And if there is a need, then there is no disrespect here. By the way, this dilemma argument (that is the logical term for the rabbinic expression “whichever way you look at it”) applies to several of your reasons here.
5. Damage to marital harmony as a result of the unnatural distancing between the spouses, contrary to the Torah’s words, for half of their fertile lives and sometimes even more.
If it is necessary, then there is no room for such a consideration. It is like not laying tefillin on the second day of a Jewish holiday outside the Land of Israel. If the enactment exists, then the result — that one does not lay tefillin — is not a problem. Distancing during part of the month can also increase marital harmony, as many have already written (I have not checked this factually; a thorough survey would be needed to examine that claim).
6. Causing transgression of prohibitions such as wasting seed, adultery, and forbidden thoughts, due to the husband’s inability to withstand such distancing, especially given today’s reality overflowing with stimuli.
Here too, this is true only if the stringency really is unnecessary. One does not cancel a prohibition that is needed and valid because of sinners.
7. A stringency that leads to leniency — preserving a stringency that is doubtful whether it is even rabbinic, which leads to relations without immersion and to a Torah prohibition punishable by karet, because many couples cannot endure this distancing and because they assume one cannot immerse unless seven clean days have passed.
Again, if this is unnecessary, then there is no need for this argument. And if it is necessary, one does not cancel prohibitions because of sinners. This relates to the ruling of Rabbi Ilai (let him wear black, go to a distant place, and do what his heart desires), and plainly the law is not in accordance with him (see Rosh and Rif, Moed Katan 16).
8. Distancing large parts of the Jewish people from the commandment of family purity in the Jewish home, which is the basis for maintaining the purity of the Jewish people.
See my comments in the previous section.
9. The need to offer the sacrifice of a “major zavah” every single month when the Temple is rebuilt speedily in our days, something that clearly constitutes “non-sacred slaughter in the Temple courtyard.”
When the Temple is rebuilt, we will examine whether there is a need for this. If the stringency was indeed unjustified, the sages in the Sanhedrin will then decide the matter, and presumably they will cancel the need for a sacrifice.
10. An explicit Torah prohibition, a negative commandment, of “do not add.”
If there is a need, or it is a custom, then there is no violation of “do not add” (otherwise every custom or enactment of the sages would violate “do not add”; see Tosafot, Rosh Hashanah 16b, and Rashba there). And if there is no need, then it should not be done even without invoking “do not add.” The same applies to the issue of non-sacred slaughter in the Temple courtyard from the previous section. In addition, Maimonides’ view seems to be that adding details to a commandment does not violate “do not add”; only adding new commandments does. And if the public is informed that this is rabbinic law or custom, there is no issue of “do not add” at all.

At the margins I would add that piling up arguments in a way that seems artificial interferes with presenting your claim. If there is no need to preserve this stringency, then it should be canceled, and that is enough to say. But if there is a need for it, then in my humble opinion most of these reasons do not stand.
I once heard from Rabbi Medan (head of Yeshivat Har Etzion) that he knows 22 reasons why one reads “From the Ash-heap, Ruth” on Purim, but only one reason for reading the Book of Esther on Purim. When there are many arguments all aiming in the same direction, that arouses suspicion of tendentiousness.

The main issue you discussed before this list was the question of halakhic infertility. But regarding that, I understand there is a dispute (how prevalent the problem of halakhic infertility really is, and whether it can be solved in other ways — and certainly by a specific permission for a couple that suffers from it, without needing to abolish this stringency across the board). I do not agree with what you wrote, that “infertility” after one already has children is indeed a problem that justifies such abolition. Let them be satisfied with three children and raise them calmly. By the same token, I would not recommend fertility treatments to anyone in such a situation.

If so, the discussion is only about lifetime infertility. As for that, if it is indeed a rare problem, or one that can be solved in other ways and by a local dispensation as needed without sweeping abolition, then the force of the argument to cancel the seven clean days is greatly weakened (because its reason has not lapsed, certainly not entirely). As stated, it seems to me that only the combination of the lapse of the reason and the need can provide serious grounds for cancellation.

To conclude, through my sins I am occupied with several other things and cannot at present examine the claims in depth. In any event, it is clear to me that your intention is for the sake of Heaven, and the matter definitely requires much deeper examination than what I have done here.

Wishing you much success.

Thank you, and Sabbath peace,
Michi

 

Arik:

Regarding point 5: why is it really possible to cancel the laying of tefillin because of the second festival day outside the Land of Israel? I understand that this is how they ruled; I’m just wondering about the reason.

Regarding points 6–8, I didn’t understand. After all, the sages made many enactments and invested great effort to prevent people from coming to sin. Why shouldn’t that count as a major need and a consideration for permitting a custom whose rationale has weakened? Especially since we find that the sages uprooted the Torah commandment of blowing the shofar on Rosh Hashanah when it falls on the Sabbath (when there is no ordained court), in order to prevent the rare situation that people might carry a shofar in the public domain on the Sabbath — and seemingly all the more so from a rare concern to a likely concern, and from a Torah commandment to a custom. Admittedly, since this enactment (canceling shofar-blowing on Rosh Hashanah) also seems puzzling (to me, and it seems to me to many others), perhaps one should not learn from it to other laws on the assumption that I, and people like me, simply have not understood it properly.

Rabbi:

It is a question of authority. So long as they have not canceled the second festival day (a matter established by vote requires another vote to permit it, and here it is rabbinic law, so the later court must be greater in wisdom and number; see Maimonides, beginning of chapter 2 of Laws of Rebels), the enactment not to lay tefillin remains in force because it is a rabbinic festival day.

First, this is again a question of authority. But beyond that there is a difference between canceling a positive commandment out of concern for a prohibition, and canceling a prohibition out of concern for another prohibition committed by sinners (so because of that we should turn all of us into sinners? What have we gained?).
Beyond that, the decrees of the sages are because of unintentional sinners (that they might carry four cubits in the public domain). But here we are dealing with intentional sinners. Canceling a law in order to prevent people from sinning intentionally is a very problematic matter.
This issue also relates to the ruling of Rabbi Ilai: if a person sees that his evil inclination is overcoming him, let him wear black, go to a distant place, and do what his heart desires. The Rif and the Rosh in Moed Katan 16 did not rule in accordance with him.
And regarding shofar on Rosh Hashanah, I wrote in my article — the meaning of shofar-blowing is that this is not really a rabbinic cancellation. In the Jerusalem Talmud this is explicit, but it also seems that way in the Babylonian Talmud.

Arik:

My question came from the assumption — which I understood from your words, especially the answer — that since we are talking about a custom whose rationale has weakened, this is not really canceling a prohibition, and a major need is enough to permit it.
Then it is clear what we gain by supposedly turning all of us into sinners in order to prevent the sins.
First, we have replaced Torah prohibitions of niddah, wasting seed, and forbidden thoughts (if such thoughts are Torah-prohibited) with violation of a custom whose rationale has weakened; and second, apparently there is no violation here because one is allowed to cancel such a custom for a major need.

Rabbi:

I do not think its rationale has weakened. The same problem existed already at the time this custom began. Similar to how one does not clear rubble in order to blow shofar (they did not permit the prohibition of muktzeh so that people could blow shofar). A rabbinic prohibition is not always set aside because of concerns that a Torah obligation will not be fulfilled. That is why I referred you to the ruling of Rabbi Ilai, where apparently they permit him a prohibition in order to prevent a more severe prohibition (sexual immorality and desecration of God’s name together). And even so, the Rosh and the Rif wrote that the law is not in accordance with him.

Arik:

I understood that the rabbi accepts that its rationale has weakened from the sentence:
“That is to say, the grounds for canceling the seven clean days require a combination of two claims: the reason has weakened, and there is a great need. Neither one stands on its own, and neither by itself can constitute grounds for cancellation.”

If we are dealing with a full-fledged prohibition and it is clear that it is similar to the case of Rabbi Ilai, why more specifically in the case of actual infertility (assuming there are cases that cannot be solved in another way)?
I thought perhaps one could say that refraining from giving birth is close to saving life with regard to the children who will not be born, but then one should say the same about someone who already has three children.
Perhaps the reasoning is that infertility is considered close to danger to the life of the couple (one who has no children is considered as dead)?

Rabbi:

That sentence described the questioner’s claims, not my position.
I was not speaking about a clear prohibition, but about a custom whose rationale has not weakened. Therefore the resemblance to the ruling of Rabbi Ilai is not complete; it was only meant to sharpen the point.
To permit in specific cases one need not reach saving life. After all, there is a positive commandment of procreation, and a positive commandment overrides a prohibition. Therefore, when fulfillment of the positive commandment is endangered, there is room to permit prohibitions, and certainly customs. Even a major need, like the need for children, can permit violating a custom.

Arik:

So I understand that a positive commandment overrides a prohibition only in the case of an obligatory commandment and not in the case of an existential commandment? Meaning: charity does not override a prohibition if you gave something, and likewise procreation for someone who already has children does not override a prohibition?

If so, what about someone who has children but only boys or only girls, and has not yet fulfilled the Torah obligation?

Rabbi:

How did you infer that from my words? The Raavad at the beginning of Sifra says that even a time-bound positive commandment for women (which in my view is less than an existential commandment) overrides a prohibition.
And regarding someone who has fulfilled the Torah commandment, even after two children there remains the commandment of “populate it” from the Prophets/Writings.

Arik:

I inferred it from the statement that one should not cancel the custom of the seven clean days in order to allow those who already have children to have more children.
If this is still considered a positive commandment and it overrides a prohibition, and certainly a custom, then why shouldn’t the custom be canceled for it?

 

If even for someone who has several children, the positive commandment of having additional children still overrides a prohibition, and certainly a custom, why did the rabbi write:
“I do not agree with what you wrote, that ‘infertility’ after one already has children is indeed a problem that justifies such abolition. Let them be satisfied with three children and raise them calmly.”

Rabbi:

Hello Arik.
Apparently because I am playing simultaneous chess here (answering several threads in parallel at intervals), I have completely lost the thread of the discussion. Unfortunately I do not have time now to go through the whole thread and see where we are holding. Sorry. I will just say that, generally speaking, in my words I was not expressing a position, but only presenting considerations in both directions in order to say that the problem is not as simple as described in his words.

Oren:

I understood that in the rulings of Ethiopian Jews (in the book From Sinai to Ethiopia by Rabbi Shalom Sharon) they are lenient regarding the stringency of Rabbi Zeira. Can that ruling serve as a halakhic precedent that would contribute to lenient rulings on this issue even for Jews who are not Ethiopian?

Rabbi:

The halakhic status of Ethiopian Jews and of their halakhic tradition is a fascinating topic that challenges our halakhic conceptions. Even if one accepts all of their historical claims, they rely on a tradition that predates the Talmuds, and therefore their law does not contain a significant portion of the Oral Torah. In principle, one could broaden the question and wonder whether it is possible to dispense with the Oral Torah altogether in light of the halakhic tradition of Ethiopian Jews.
As for them themselves, the Talmud truly is not binding, because they were not partners in accepting it as the binding code. On the other hand, if they want to join the halakhic-Talmudic community, it seems to me they would have to accept its authority by joining it. They need to “convert” to stringency, at least in this sense. However, they can choose not to join, and then they can quite legitimately continue their tradition, of course. I think that in the Heavenly court no claim could be brought against them.
But it seems to me that precisely because of this, their approach to the stringency of Rabbi Zeira is irrelevant. We accepted the Talmud upon ourselves as the binding halakhic code, and therefore a group not bound by the Talmud cannot serve as a halakhic option for us (although according to their own approach they certainly may act that way). One could go even further and adopt the Christian tradition too, which also split from us at some point.
Commitment to the Talmud means that we do operate within the Talmudic framework. Within that framework one can of course discuss whether the stringency of Rabbi Zeira is binding or not, and that is Dr. Roznek’s topic. But in my opinion the Ethiopian tradition, which does not operate within that framework, is irrelevant to the discussion.

Oren:

I understood that Rabbi Sharon tried to harmonize Talmudic law with Ethiopian tradition as much as possible (for example, he ruled that saving life overrides the Sabbath, even though Ethiopian tradition says the opposite). It seems to me that in places where he saw that we were dealing with decrees or enactments (especially where their rationale had lapsed), he felt freer to rule in accordance with Ethiopian tradition. Perhaps one could say that the very fact that even after Ethiopians were exposed to the Talmudic tradition, they still did not accept upon themselves (at least according to Rabbi Sharon’s rulings) the stringency of Rabbi Zeira — perhaps this could be seen as an opening for canceling the decree, since Maimonides said: “If a court decreed a decree or enacted an enactment or established a custom, and the matter spread throughout all Israel, and another court arose after them and wished to cancel the earlier matters and uproot that enactment, that decree, or that custom, it cannot do so unless it is greater than the first in wisdom and number.” But the decree did not spread throughout all Israel (for the Ethiopians did not accept this decree upon themselves — even after they became aware of it). And Maimonides also said: “If they decreed and assumed that it had spread throughout all Israel, and it remained so for many years, and later another court arose and checked all Israel and saw that that decree had not spread throughout all Israel, it has permission to cancel it even if it was less than the first court in wisdom and number.” What do you think of this idea?

By the way, it is interesting to note in this connection that, similar to the tradition of the sages, in the tradition of Beta Israel the counting of the Omer also begins on the evening after the festival of Passover, but not after the first festival day — rather after the evening of the seventh day of Passover (presumably Rabbi Sharon aligned himself with Talmudic law on this point, but I have not checked).

Rabbi:

With all due respect to Rabbi Sharon (we know each other well), the fact that he tries to coordinate between the traditions has no significance. At this initial stage, anyone can do whatever he wants. Even if one takes their halakhic tradition seriously and relates to it like our own tradition, I doubt to what extent he can even permit desecrating the Sabbath for saving life. After all, if their tradition forbids it, then this is Sabbath desecration — and who appointed him to permit or forbid? Whichever way you look at it, either their tradition is as valid as ours, or one can play with it as one wishes, in which case I too can do so even though I am not Ethiopian. He has no different status from mine on this matter.

As for canceling enactments and decrees: first, this is a custom, not a decree. Second, the “decree” was instituted long ago and did indeed spread completely. The fact that there is a small community that never heard of it and therefore did not accept it upon themselves has no significance.
Even what I said — that they can continue their custom — is itself a novelty, since one could argue that the Jewish people accepted the Talmud and they must join it (just as an individual who never heard of some enactment obviously would not be treated as a separate tradition, and he would be obligated to join what the public accepted). So to use them as a basis for saying that the enactment never spread to the whole public is much less plausible. Beyond that, there are long discussions about enactments that spread and later lapsed, or the reverse. But I do not think we need to get into that.