Further Perspectives on Jewish Law and Contemporary Issues

Contents

PREFACE

INTRODUCTION

JEWISH LAW AND CHANGING TIMES:

THE DIFFERENCES BETWEEN MEN AND WOMEN AND THE IMPLICATIONS

ORAH HAYYIM

TALKING IN SYNAGOGUE

WHEN TEFILLIN ARE REMOVED

COUNTING WOMEN IN THE MINYAN

REFUSAL TO WEAR A HEAD-COVERING

EJECTING AN IMPAIRED KOHEN

RECITING SHE-HE-HEYANU FOR AN ANNIVERSARY

AVOIDING THE NAME OF GOD

SYNAGOGUE DRESS CODES

COMFORTING MOURNERS ON SHABBAT

SPORTS ON SHABBAT

AN EARLY KABBALAT SHABBAT

WOMEN LEADING THE SEDER

FOR PEDAGOGICAL REASONS

WOMEN BLOWING SHOFAR

OUTDOOR SHIVAH MINYANIM

YOREH DE’AH

PLANTING FLOWERS AT GRAVES

KASHERING CHINA

HAIR, HINDUISM, AND IDOLATRY

GENTILE GIFTS TO THE SYNAGOGUE

ANESTHETICS FOR INFANT CIRCUMCISION

SLAVERY

BLESSINGS RECITED AT THE TIME OF CONVERSION

MEZUZAH ON A GARAGE DOOR

WEARING TEFILLIN ON THE FIRST DAY OF SHIVAH

LISTENING TO THE RADIO IN A CEMETERY

TZIDDUK HA-DIN ON NON-TAHANUN DAYS

EVEN HA-EZER

PATRILINEAL DESCENT

ORAL SEX

MIXED DANCING

WHEN TO SIGN TENA’IM

POSITION OF THE BRIDE AND GROOM UNDER THE HUPPAH

STANDING FOR THE BRIDE’S ENTRY

HOSHEN MISHPAT

QUALIFICATIONS FOR CONVERSION COURTS

TOPICS NOT MENTIONED IN THE SHULHAN ARUKH

THE COLOUR OF A BRIDE’S DRESS

THE BOUNDARIES OF PUBLIC ANNOUNCEMENTS

BIBLIOGRAPHY

PREFACE

Since the 2009 publication of my Perspectives on Jewish Law and Contemporary Issues, more questions have been addressed to me about process than about content. I believe that I adequately addressed how I approach resolving halakhic (that is, Jewish legal) issues in the introduction to that volume, but, apparently, not to the satisfaction of some readers. Hence, before I offer a very brief overview of the essays that appear in this collection, I am compelled to add some further remarks on the process of determining Jewish practice today. I begin with two examples.

My esteemed teacher, Rabbi David Weiss Halivni is probably one of the few scholars in the world familiar with fourteenth century Rabbi David Mordechai Kokhavi’s text called Sefer HaBatim. Regarding including women in public Torah reading (Sha’arei Keriat HaTorah 2:6) the author notes that there is one great authority who writes that the stated rules of who may be called up to the Torah (and read as well) apply only to the synagogue. In the synagogue, women are not called up to the Torah. Should prayer services be conducted at home, it is not officially a congregation. Accordingly, a woman may read Torah among the ten men worshipping at home. (A similar opinion appears in Mahzor Vitry, although Mahzor Vitry is generally not considered an halakhic source.) But Rav Halivni is disinclined to cite this text as a precedent for including women in a mixed-gendered reading of Torah since, he argues, Jewish law is not determined by isolated, solitary opinions. And, besides, this opinion is contingent on a group separating itself from the community, an attitude that contravenes the Mishnah (Avot 2:5). Thus, according to Rabbi Halivni, one opinion is insufficient to warrant a change in established practice.

According to my senior colleague of blessed memory, Rabbi Israel Silverman, when Camp Ramah in Canada conferred with Rav Halivni on the matter of women being counted in the ten needed for reciting the expanded introduction to the prayer of thanks for food (Birkat HaMazon), Rav Halivni pointed to the opinion of both Rabbenu Tam and Rabbenu Simhah that allowed it, even though it was disputed by many others (cf. Shiltei Gibborim, Berakhot, Chapter 3, beginning, note 2). In this case, two opinions—even disputed ones—were sufficient to include women. In both cases, it seems, numbers matter. Ecclesiastes (4:9) is correct: two are indeed better than one.

Yet in Jewish law sometimes even one is enough. The long-standing practice in synagogues throughout the world has been to have the prayer leader face the Holy Ark with his back to the congregation (cf. Rabbi Moses Isserles’ gloss on Shulhan Arukh, Orah Hayyim 150:5). At the same time, he writes that the Torah-reading table should be placed in the middle of the synagogue, presumably enabling all the worshippers to hear. By the beginning of the twentieth century, however, synagogues of every affiliation had moved away from this interior design. Instead, lecterns on an elevated podium were placed at the front of the synagogue with Torah-readers and prayers leaders facing the congregation. The transformation was so dramatic and so widespread to warrant the excoriation of the internationally respected Hafetz Hayyim, Rabbi Yisrael Meir HaKoen Kagan (Bi’ur Halakhah to Mishnah Berurah 150:5, s.v. ba-emtza). While emulating the design of churches that centered activity at the front of the sanctuary may be a factor that explains the shift, it may simply be the case that larger modern synagogues required fixing the place of prayer leaders at the front facing the congregation so that they could effectively lead.

In the 1970’s, the late Chief Rabbi of Haifa, Rabbi Joseph Mesas, was asked by a former student of his, Rabbi M. A. Murciano, serving a congregation in Queens, New York, whether this modern innovation was warranted. Rabbi Mesas replied that even though this was a departure from Jewish practice it is not necessarily wrong. He cites several sources that indicate that the internal configuration of the synagogue varies according to need. For instance, on fast days, when the Torah was read outdoors to accommodate a large public gathering, the table was arranged so that the Torah-reader faced the congregation (Tosefta Megillah 4:21 as understood by Rabbi Isaac Alfasi and Rabbenu Nissim; Rabbi Saul Lieberman, Tosefta Kifshutah, ad. loc., n. 78). And Rabbi Joseph Karo (Kessef Mishneh on Maimonides, Mishneh Torah, Laws of Prayer 11:3, s.v. u-ma’amidin) states that the design of a synagogue will vary according to the place and particular time. Hence, Rabbi Mesas concluded, if a variance from the historical configuration of the synagogue interior is required for legitimate reasons, there is no objection.

Important to note is that Rabbi Mesas relied on what he believed to be the correct interpretation of the Tosefta and a single authority’s opinion. And, in turn, Rabbi Murciano relied on the opinion of a single authority, his teacher. In other words, a determination of Jewish law need not rely on some minimum number of authorities. Even a solitary opinion is sometimes sufficient to validate appropriate conduct. This principle is derived from the Talmud (Peshaim 112a) that asserts that anyone who offers an unorthodox opinion should suspend himself from a big oak, that is, have a weighty authority on whom to rely.

This example answers one question but raises another. It shows that a single opinion on Jewish law can be probative and warrant a change from the perceived norm. But it also raises the question concerning what makes an authority sufficiently weighty.

As more and more rabbis voice their opinions on a given issue, how rabbis are to be ranked and how many of a lesser rank are enough to counter a single authority of a greater rank and whether a single authority of greater rank can overrule the majority of opinions of those of a lesser rank is as problematic as it is debatable. As early as the fourteenth century—if not earlier—rabbis have struggled with precisely this dilemma. Thus when Rabbi Jacob Moellin (Responsa MaHaRIL, No. 171) was asked how he decides matters of Jewish law, he says it all depends. Sometimes rabbis follow the majority (cf. Yoma 84b, according to Samuel, the majority does not rule when it comes to saving a life). Sometimes rabbis follow the most recent opinions. Sometimes rabbis may follow the logic of the Talmudic text. Sometimes rabbis will follow strict opinions and at other times the lenient ones. Sometimes rabbis will follow popular custom. Rabbi Moellin attests that he will generally follow the approach of the Tosafists, Rabbi Eliezer ben Rabbi Yoel HaLevi, and Rabbi Meir of Rothenberg.

In other words, authorities need not be consistent in process or follow a fixed pattern or set of rules. So what is left? What counts is whether or not a given response is textually defensible and logically compelling irrespective of the numbers or ranking of authorities, though certain authorities might be privileged above others. Needless to say, Jewish history is the ultimate arbiter of which opinions are definitive. So while each opinion is directed towards the present, it will only be confirmed in the future. Given this reality, the contents of this volume will be judged accordingly.

This volume departs from traditional collections of responsa, aside from the fact that the perspectives I offer are written in English, the language best understood by those posing the questions, rather than in Hebrew, the language of rabbinic discourse. I include two introductory essays that do not address a specific question. While not dealing directly with the issue of process, the first introductory essay in this volume is a small contribution to better understanding how Jewish law changes in response to changes in science and society. From it readers will be able to see how many authorities wrestled with bridging the gap between tradition and reality. Important to note is that the reality of changing facts or changing times never became license for any and all changes in Jewish law by the law’s interpreters.

In contrast to the first volume, this current volume includes significantly fewer responses to matters of death and burial than the first. Matters related to women, directly or indirectly (like mixed dancing), however, continue to be a sizeable portion of questions asked of me. This certainly reflects a pre-occupation with the role of women in Judaism in general. Therefore, I have also included a perspective on the idea of equality and egalitarianism in Judaism as a second introductory essay.

Several of the responses in this volume were originally published separately for the Panel of Halakhic Inquiry of the Union for Traditional Judaism on which I served and are identified accordingly. I am grateful to the U.T.J. for their permission to publish them here, albeit in a somewhat revised format. The revisions, however, do not reflect a change in position but new information and sources that have come my way since the original date of publication, sources that would be of benefit to the reader for me to include.

As a rule, I have italicized technical terms in Hebrew unless they are well known to the general reader. So Shabbat, Kashrut, shivah, and yeshiva for example, will appear un-italicized. All specific Jewish prayers are italicized while all Jewish holidays are not. Talmudic and Geonic authorities are spelled as transliterations from Hebrew or Aramaic but I have chosen to render the names of later authorities I cite by the English spelling (Jacob, rather than Ya’akov). All Israeli author names are in Hebrew transliteration. In some instances where it would be more helpful to the reader I have translated the titles of articles cited from the original Hebrew to English. In other places I have provided the titles in transliteration only. For transliterations, the Hebrew letter khaf is rendered as kh while the letter het is rendered as an underlined h. I have also made some minor changes in the transliteration scheme from the first volume reflecting a more popular and less scholarly rendition. In order to comport more closely with Hebrew, I have rendered all acronyms with capital letters corresponding to the Hebrew acronym, like RaMBaM for Maimonides. American spelling (rather than Canadian) is the standard. I apologize for any lapses that residence in Canada might cause. I have also appended to this volume a bibliography that encompasses volume one as well. Prayer books that are well known and/or easily accessible are not listed.

I need to acknowledge the assistance of my daughter Talia Esther Allen whose critical eye and resultant suggestions only improved the final version of this book. Likewise, I am appreciative of the valued input from my wife Patti. I am also grateful to my colleague and teacher Rabbi Professor David Novak for his comments, suggestion, and corrections. Any mistakes that might be discovered, however, are mine alone.

Rabbi Wayne Allen

Toronto, 2011

INTRODUCTION

JEWISH LAW AND CHANGING TIMES:

TOWARDS SOME GUIDELINES FOR CONFLICT RESOLUTION

(The original version of this essay was published in Halakah and the Modern Jew, Essays in Honor of Horace Bier, ed. Rabbis J. Leonard Romm and Leonard Levy for the Union for Traditional Judaism, 1989)

One fifteenth century dispute centered around whether young rabbis may disagree with their teachers. The questioner suggests that the Talmudic dictum (Berakhot 31b) that a student who renders legal decisions in the presence of his teacher is liable for the death penalty applied only during the Talmudic period. Rabbi Joseph Colon (Responsa MaHaRIK, Shoresh 169, Anaf 3), however, responds that he disagrees.

Carefully analysing the source from which the inquirer derives his assumption, Rabbi Colon claims that the author of this source did not intend a complete repudiation of the Talmudic dictum. Rather, the intent was to challenge the absoluteness of the Talmudic dictum, namely, that rendering legal decisions in the presence of one’s teacher is always forbidden. In other words, explains Rabbi Colon, where the law is clearly and unambiguously set out by the decisors of Jewish law, it remains unchallengeable. Here, the Talmudic dictum applies. But where the law is a matter of scholarly dispute and not even the greatest scholars are capable of garnering universal acceptance of their view, and subsequently, where extraordinary wisdom is required to determine according to whom Jews ought to behave, the Talmudic dictum does not apply.

After explaining the questioner’s source Rabbi Colon then disputes it. He concludes that it does not seem [correct] to differentiate between earlier generations and today when it comes to rendering legal decisions in the presence of one’s teacher.

This statement is rather intriguing. While it affirms the timelessness of the law of respecting one’s teacher, it raises the possibility of the time-limitedness of other laws, where there could be a differentiation between earlier generations and today.

Unfortunately, Rabbi Colon does not list which laws he would place in this category and why. But the very concept of the law changing as conditions change predates Rabbi Colon by more than a millennium. In fact, the concept is given its first expression in the Talmud.

According to the Mishnah (Sotah 9:9), the ordeal of the suspected adulteress, though Biblical in origin (cf. Numbers 5:12ff), was terminated by Rabban Yohanan ben Zakkai in the first century of the Common Era when adultery apparently increased so dramatically so as to make the ordeal meaningless. Similarly, Rabban Yohanan ben Zakkai (ibid.) abolished the Biblical rite of breaking the neck of a calf for an unknown homicide (Deuteronomy 21:1ff) when murder increased. Rav Nahman bar Yitzhak (Hullin 136b) of the fourth century states that priestly gifts are only mandated in Israel, that seminal emissions no longer require ritual immersion before Torah study, and that a violation of the rule against mixing species of grain apply only when sown simultaneously—all contrary to earlier times. By the same period, Rav Yosef (Kiddushin 71b) declares that speaking Babylonian Jewish Aramaic was no longer in and of itself sufficient proof of good breeding to merit marriage to women of high station. The fifth century Babylonian authority Amemar (Shabbat 95a) permitted sprinkling the floors in the town of Mahoza is order to sweep up the dust on Shabbat because all the houses there had stone floors and thus there was no fear of violating Shabbat by levelling depressions in an earthen floor. The Talmud (Ketubot 3a; cf. also Ta’anit 17a, Bava Metzia 42a, Avodah Zarah 69b and the important article by Immanuel Low, Ha-Iddana, in Hebrew Union College Annual, Volume II [1936], pp. 193-201 for other examples) also relates how, contrary to earlier times, the days on which a woman may marry are determined and limited by the days on which the courts were in session.

These earliest expressions of the concept of changing times undoubtedly served as the basis for the medieval Tosafists’ elevation of the concept into a principle of law (cf. Rabbi Louis Jacobs, A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law, p. 126ff for his thoughtful and concise explanation of how Jewish law can change at all when the Mishnah [Eduyot 1:5] rules that no court is empowered to set aside a law promulgated by another court unless the latter is superior to the former in number and wisdom.). For instance, the Tosafists (Betzah 6a, s.v. ha-iddana and Avodah Zara 35a, s.v. hada) rule that liquids left uncovered overnight are no longer forbidden on the grounds that poisonous snakes may have secreted venom into such liquids since poisonous snakes were not commonly found near Jewish homes nowadays. Again, since nowadays we lack the skill to make or even repair musical instruments, the rule prohibiting hand-clapping on Shabbat lest it lead to making musical instruments no longer applies (Betzah 30a, s.v. tenan). Washing hands before feeding a child four or five years old is no longer required, argue the Tosafists (Yoma 77b, s.v. mishum), since the conditions such as those that caused the potential health hazards meriting hand-washing in Babylonia in Talmudic times no longer obtain. The Tosafists (Mo’ed Katan 11a, s.v. kavara) recognized that certain Talmudic remedies are no longer efficacious and therefore no longer applied. And babies delivered after only eight months of gestation were—contrary to the Talmud that compared them to stones—viable, and thus could be moved on Shabbat (Shabbat 135a, s.v. ben). Even rules based on Talmudic statements about animal physiology could no longer be maintained in light of a more sophisticated knowledge of veterinary science (Hullin 47a, s.v. kol).

It is specifically in the area of the exact sciences where significant advances have been made that appeals to the principle of changing times are most compelling. (The Talmud [Rosh Hashanah 25a] states that testimony that contradicted established scientific knowledge was dismissed as erroneous or deliberately false.) In effect, the principle of changing times would more properly be termed the principle of changing facts. Medical science has progressed so far and so rapidly that earlier assumptions of facts have been unequivocally disproven. With increased accuracy especially in the fields of biology, embryology, anatomy, chemistry, and epidemiology, doubts were cast on the continuing applicability of laws based on spurious scientific grounds.

The statement in the Tamud (Bava Batra 119a), for example, that a woman who marries after the age of twenty is only capable of conceiving until she reaches the age of forty and not afterwards is patently wrong and had to be qualified by later authorities (cf. Rabbi Isaac Herzog, Responsa Heikhal Yitzhaq, Even Ha-Ezer, Vol. I, No. 6, p. 54). The Talmud (Niddah 9a) asserts that the blood of a pregnant woman is changed and converted to milk. Indecent behaviour during copulation is often stated as the cause of epilepsy (Pesahim 112b; Ketubot 60b; Gittin 70a). The law of Levirate Marriage would, according to the Talmud (Yevamot 42a and parallels), still apply to a pregnant widow who did not deliver her baby at full term since such a baby would not be viable. This assumption, shared by all ancient physicians (cf. Julius Preuss, Biblical and Talmudic Medicine, trans. Fred Rosner, p. 393), and now known to be incorrect, was challenged by Rabbi Moses Isserles (gloss on Rabbi Joseph Karo, Shulhan Arukh, Even Ha-Ezer 156:4) though codified by Rabbi Joseph Karo (ibid.). In fact, Rav Sherira Gaon, religious head of the Babylonian Jewish community in the tenth century, took the lead in commenting on the popular cures listed in the seventh chapter of the tractate Gittin. We must tell you, he wrote, that our sages were no physicians; they only recommended that which experience had proved helpful. The counsel in this field is by no means law… (cf. Rabbi Immanuel Jackobovits, Jewish Medical Ethics, p. xxxviii).

Today, new discoveries are announced almost daily. Some contradict previously accepted facts, other reaffirm previously discarded ones. In an ever-changing scientific world experiencing and information revolution, it is difficult indeed to keep track of the latest news. It is even more difficult to know how to react when those scientific discoveries come into conflict with the assumptions upon which certain Jewish laws are based. Do we affirm the law and ignore science, or do we accept science and ignore the law?

One contemporary authority helps focus the question and offer a solution. Rabbi Isaac Klein, of blessed memory, correctly notes (A Guide to Jewish Religious Practice, pp. 385-6) that according to traditional Jewish law in order to establish paternity and to safeguard the health of a newborn child, divorcees and widows should nor marry until three months have elapsed after the divorce or death of the husband, not counting the day of the marriage (Shulhan Arukh, Even Ha-Ezer 13:1 based on Yevamot 41b). The only exception for this rule of hav-hanah is remarriage to the same partner. The need for establishing paternity is so critical that this law is applied in all cases even when it is known that the first husband could not have impregnated his wife such as when the first husband is away or in jail or if the women were unable to bear a child. But Rabbi Klein writes: The need for the continuation of this law is in doubt. Three months was once regarded as the period necessary for pregnancy to become apparent, but nowadays pregnancies can be determined much sooner through the Ascheim-Zondek test or other bio-chemical means, and thus the principle of ‘lo pelug’ is irrelevant. Rabbi Klein continues in the very next paragraph: For related reasons, a man should not marry a woman who is pregnant or nursing a child (Even Ha-Ezer 13:11). Nowadays, due to the use of bottle feeding and to the shorter period devoted to nursing, this rule is academic.

Rabbi Klein had little difficulty in applying the principle of changed facts to affirm the latest scientific information at the expense of established law. This is certainly within the tradition of Rav Sherira Gaon and the Tosafists. But are there any guidelines which might help us to apply the principle of changed facts or is it an entirely subjective exercise? I contend that by analyzing several instances in which the principle was invoked or ignored we can extrapolate guidelines that may be used to determine when the principle of changed times may be applied to what we would expect to be a growing number of cases.

Based on the statement of fifth century Mar bar Rav Ashi (Pesahim 76b), the codes (cf. Rabbenu Hananel ad loc.; Rabbi Jacob ben Asher, Tur, Yoreh De’ah 116; Rabbi Joseph Karo, Shulhan Arukh, Yoreh De’ah 116:2 and gloss of Rabbi Moses Isserles; Rabbi Isaac of Corbeil Sefer Mitzvot Katan 213) forbid the roasting or easting of meat and fish together because it may cause foul odors, or, more seriously, leprosy. It is on account of the danger of leprosy that later authorities (cf. Rabbi David HaLevi, on the one hand, and Rabbis Moses Isserles and Shabbetai HaKohen on the other, Yoreh De’ah 116:2) were divided on whether an accidental admixture of meat and fish could be nullified at all—as would be the case with milk and meat—in sixty times the volume of one to the other. Likewise, some authorities (cf. Tur, Even Ha-Ezer 116 in the name of yesh mahmirim, and Rabbi Mordechai Yaffo, Levush Ateret Zahav 116:2) insisted that separate dinnerware be reserved only for fish so that even meat dishes would not come in contact with the fish. While most authorities dispute this latter precaution, the rinsing of one’s mouth between fish and meat courses of a meal or, similarly, the washing of one’s hands, was nonetheless recommended (cf. Tur, Yoreh De’ah 116 in the name of Rabbenu Asher; cf. also, Rabbi Abraham Danzig, Hokhmat Adam 68:1; Rabbi Moses Isserles’ gloss on Yoreh De’ah 116:3). Rabbi Aaron ibn Shimon (Nahar Mitzrayim, Laws of Forbidden Foods, Danger, 16) went so far as to write that even medical science validates the inherent danger of eating fish and meat together. He states: In our day, medical scientists have discovered through their research that eating fish and meat together is harmful to human health because of the incompatibility of the two foods. Modern dieticians and dermatologists, however, find no linkage whatsoever between meat and fish and illness and leprosy. This fact was anticipated by seventeenth century Rabbi Abraham Gumbiner (Magen Avraham, Orah Hayyim 173:1; cf. also Rabbi Yehiel Mikhel Epstein, Arukh HaShulhan, Yoreh De’ah 116:10) who comments that such a danger is neither imminent nor probable with both the change in time and differences of environment. Apparently, Rabbi Gumbiner would advocate ignoring this law despite the fact that it is codified by Rabbi Joseph Karo. Interestingly, this would be in seeming contrast with what he says elsewhere (See below).

The practice of reclining at the Passover seder is well-known. According to the Mishnah (Pesahim 10:1), all Jews—including the poor—had to recline before eating or drinking the required minimum amounts of food during the seder. The Jerusalem Talmud (Pesahim 10:1) explains that this practice reminds us that we are no longer slaves who necessarily had to eat while standing. Alternatively, Maimonides (Commentary on the Mishnah, Pesahim, Chapter 10) explains that the practice of reclining is in emulation of the patricians whose ranks we have joined. In either case, all agree that reclining is a manifestation of freedom. The Talmud (Pesahim 108a) goes on to discuss the manner in which one reclines. Lying on one’s back (or stomach) is not considered reclining. Neither is lying on one’s right side. The Talmud, according to Rabbi Samuel ben Meir (ad loc., s.v. shema yakdim), is fearful that in these positions choking might occur. Thus, leftward reclining is the only hazard-free way of symbolizing the theme of freedom. Even the author of Shibbolei HaLeket, Rabbi Zedekiah ben Rav Avraham (Section 218), though varying somewhat from RaShBaM’s interpretation, agrees that leaning to the right may be harmful to one’s health. Here, however, the stipulated danger is that since most people are right-handed, leaning on the right may compel people to strain while using the restricted right hand or the less adept left hand and the subsequent neck strain may induce choking. By the twelfth century, new table customs raised questions about this practice.

Rabbi Eliezer ben Rav Natan (Sefer RAVaN, Chapter Arvei Pesahim, end) rules that since we are no longer accustomed to eat while reclining, we fulfill our seder obligation by eating seated as we do ordinarily and no reclining, whether right or left, is required. This ruling, based on changed circumstances, is reiterated by his maternal grandson, Rabbi Eliezer ben Rav Yoel HaLevi, known as RAVIaH (cf. Hagahot Maimoniyot, Mishneh Torah, Laws of Hametz and Matzah 7:7, sub-paragraph 2 and Tur, Orah Hayyim 472), and cited by Rabbi Moses Isserles (Shulhan Arukh, Orah Hayyim 472:7). However, Rabbi Abraham Gumbiner still insists on leftward reclining in order to avoid the danger of choking. From this we may deduce that since Rabbi Gumbiner (Magen Avraham, Orah Hayyim 472:4) had no new medical information that would alter the facts upon which the Talmud bases the rule that only leftward reclining is safe, he affirms the law even though there are legal precedents from other authorities to ignore it because the legal precedents were based upon sociological—not medical—factors. A change in table customs was insufficiently strong to warrant a change in the law.

Another case that reinforces this deduction is that of mayyim aharonim. The Talmud (Berakhot 53b and parallels) is very strict regarding washing hands; not only before meals, but after meals as well. The Tosafists (ad loc., s.v. vi-y’hitem and Hullin 105a, s.v. mayyim rishonim), however, contend that unlike the washing before meals which is ritualistic and hence permanently binding, the washing after meals is a health precaution, namely, to remove Sodomite salt which, even in small traces, may cause blindness if it came in contact with the eyes. Since nowadays this salt is no longer found and since the law was laid down only for this reason, the law requiring mayyim aharonim is no longer operative. Rabbi Abraham Gumbiner (Magen Avraham, Orah Hayyim 181, Introduction) agrees with the Tosafists, the teaching of the mystics (cf. Zohar II, 265a) notwithstanding.

From the above cases, we can discern certain characteristics that help formulate the guidelines for applying the principle of changed facts. First, while during the time of the Mishnah, according to Rabbi Louis Jacobs (op. cit., p. 160) the principle of change is accepted… and the right, even the duty, to change even a biblical law when conditions have changed is acknowledged, after the time of the Mishnah, the only laws subject to review under the principle of changed facts are purely rabbinic in origin. The validity of Biblical laws or laws ascribed to Moses at Sinai remains unaffected even if advanced scientific knowledge would seem to nullify the supposed reason for their enactment. Thus, the regulations regarding the fitness of animals for ritual slaughter, though based on the assumption that diseased animals cannot survive more than twelve months (Hullin 31 and 54a), may not be altered even if—as Maimonides (op. cit., Laws of Ritual Slaughter 10:13) writes—It will appear according to our medical knowledge that some [diseased animals] will not die within the expected time because these regulations derive from the explication of the Torah. Similarly, Rabbi Moses Schreiber (Responsa Hatam Sofer, Even HaEzer, No. 17) insists that while medical authorities assure that a man with one diseased testicle removed may still father a child, he is still disallowed to marry since the law is based on a categorical Biblical injunction not subject to review in light of new medical knowledge. Rabbi Moses Schick (Responsa MaHaRaM Schick, Yoreh De’ah, No. 244) condenses the applicability of the rule of changed facts into one short phrase: In matters that are laws ascribed to Moses at Sinai, it is impossible to say that times have changed since the words of our God are eternal.

Second, the cases in which laws were ruled inoperative were of two fundamental types. One type was that in which the changed facts that challenged the established law were based on changed living conditions, attitudes, social customs, and the like, that is, what would be termed social science factors. These are essentially imprecise and subjective. As a result, there is no consensus among the later authorities on Jewish law whether or not to accept these factors as sufficient in and of themselves for warranting a change in law. The Tosafists, as could be seen earlier, were more inclined to accept these factors. However, later authorities did not generally accept their opinions. Another type was that in which the changed facts that challenged established law were based on advances in the exact sciences. These are very precise and objective. As a result, later authorities tend to accept such factors as grounds for warranting a change in law. The debate over the kashrut of swordfish, incidentally, is not a debate about the law or about ichthyology. It is a debate about identification, i.e., are the swordfish caught and sold actually swordfish that had scales but as juveniles but lost them as they matured or sailfish that never had scales in the first place. Rabbi Isaac Klein (Responsa and Halakhic Studies, p. 75ff) and Rabbi Moses Tendler (The Halakhic Status of Swordfish, Jewish Observer, April, 1968 and Gesher, Vol.