Thursday, May 19, 2011

Did Rav Elyashiv put forth this crazy psak?

Rosa Parks
The one about yelling at the woman? You know, this one mentioned at Life In Israel:
Kikar has the story of an avreich who went to Rav Elyashiv and described to him a situation that he had recently been involved in. He had been travelling on a mehadrin bus there was a woman who sat herself down in the front section of the bus, against the rules of the mehadrin arrangement.

He says he approached her and politely asked her to move to the back and respect the desires of the other passengers. She refused to move.

Thinking he was fighting the holy fight, he got very rude, started screaming at her in front of the whole bus full of passengers, said very rude and demeaning things.

Now he wants to know, after a few days of reflection, if he behaved properly or if he should apologize to her for his behavior.

The Psak
Rav Elyashiv supposedly answered that he has no reason to apologize, as she was wrong and she should have moved to the back and not disrupted the mehadrin arrangement.

The avreich persisted and suggested that perhaps she was handicapped and was unable to move to the back despite being screamed at, and maybe he does need to apologize?

Rav Elyashiv, again supposedly, responded that he has no need to apologize as he acted properly.

The Proof
Rav Elyashiv proved his words quoting from the story in the gemara of the amora (article says it was Shmuel but I don't think so) who encountered a woman in the street who was dressed immodestly and he ripped it off her. He is praised even though in the end it was discovered the woman was not even Jewish. Rav Elyashiv said from that we learn that one can shame someone who goes against "Dat Yehudit" in the matters of tzniyus.
Maybe he did. Maybe he didn't. However, in favor of the latter possibility, consider the following, from an article by Rabbis Frimmer:
Some codifiers have suggested that in order to assure the acceptance of his decision, a decisor may falsely attribute his ruling to someone greater than he, provided he is absolutely convinced of its correctness. This is known in the halakhic literature as "le-hi-talot be-ilan gadol" (Eruvin 51a; Pesahim 112a). See Magen AvrahamO.H. sec. 156, no. 2; Tosafot Yom Tov and Tiferet Yisrael,Boaz, no. 2 to Avot 5:2 s.v. "veAl ma she-lo shama shamati"; Birkei YosefY.D. sec. 242, no. 29; Sefer Beit Aharon, IX, "Im bikashta lei-hanek, hi-tale be-ilan gadol," pp. 606-607, and supra, Addendum, Part 3b; Niv Sefatayyimkelal 7; R. Abraham David Horowitz, Resp. Kinyan Torah beHalakha, VII, Y.D. sec. 74; R. Ovadiah Yosef, Me'or Yisrael, II, Eruvin 51a; R. Aryeh Kaplan, "The Structure of Jewish Law," The Aryeh Kaplan Reader (New York: Mesorah Publications, 1983), pp. 211-224-see especially p. 217 and footnote 105. R. Moses Jehiel Weiss, Beit Yehezkel, p. 75, suggests that this is permitted only to prevent others from sinning. In any case, this does not necessarily mean that it is permitted to lie about the reasons for the ruling, merely its attribution. (This distinction is, of course, rejected by the posekim cited above who argue that the dispensation to modify the truth in order to maintain peace applies to misrepresenting halakha).
Thus, there ARE people going around nowadays who believe that it is permitted to lie about the source of a pesak in order to get other people to accept it. It is eminently possible that this avreich yelled at the woman, considers himself a great talmid chacham, and in the right, but knows that people will not accept it from him. Therefore he took what he considers a halachically and hashkafically acceptable path, and falsely attributed the pesak to Rav Elyashiv.

I would note that a related Gadol, Rav Chaim Kanievsky, said: כל מה שאומרים בשמי הוא שקר. False attribution to these Bnei Brak-based Gedolim is common.

Another reason to suspect the statement is that it was not Shmuel in the story in the gemara. It is Rav Adda bar Ahava. In the gemara Berachot 20a:
Said R. Papa to Abaye: How is it that for the former generations miracles were performed and for us miracles are not performed? It cannot be because of their [superiority in] study, because in the years of Rab Judah the whole of their studies was confined to Nezikin, and we study all six Orders, and when Rab Judah came in [the tractate] 'Ukzin [to the law], 'If a woman presses vegetables in a pot'3  (or, according to others, 'olives pressed with their leaves are clean'),4  he used to say, I see all the difficulties of Rab and Samuel here.5  and we have thirteen versions of Ukzin.6  And yet when Rab Judah drew off one shoe,7  rain used to come, whereas we torment ourselves and cry loudly, and no notice is taken of us!8  He replied: The former generations used to be ready to sacrifice their lives for the sanctity of [God's] name; we do not sacrifice our lives for the sanctity of [God's] name. There was the case of R. Adda b. Ahaba who saw a heathen woman wearing a red head-dress9  in the street, and thinking that she was an Israelite woman, he rose and tore it from her. It turned out that she was a heathen woman, and they fined him four hundred zuz. He said to her: What is your name. She replied: Mathun. Mathun, he said to her: that makes four hundred zuz.10
Presumably Rav Elyashiv would not get the attribution incorrect. Of course, it could just be an error in the retelling.

If he DID say it -- which is certainly a remote possibility -- then I respectfully disagree with him, or if that is not possible, then I simply disagree with him. Let us grant that interpretation of the gemara. (Even though Matan, her name, means Patience, and he might well be saying that he acted rashly, incorrectly. The gemara certainly understands his course of action as correct; and even though the explanation of the Geonim was that this כרבלתא was problematic because of the Biblical prohibition of shaatnez, rather than a violation of Daas Yehudis.)  Here are two or three counterpoints that Rav Elyashiv perhaps did not consider, or know about:

1) The woman was not trying to be non-tzanua. Rather, she was likely offended by the suggestion that women must ride in the back of the bus. While various chareidim have decided to impose this tznius practice, unofficially, and many chareidi women have accepted it or promote it, it does not mean that other religious women agree with it. And there are many reasons to oppose it for reasons other than promoting licentiousness. Therefore, the woman might not 'deserve' such a hostile response.

2) Mehadrin bus lines are sitting in shaky territory. Whether it was permitted came before the Israeli Supreme court. Their ruling:
According to the Court, everyone may sit wherever they want on the bus, even in "mehadrin" lines, and drivers must work to prevent passengers from being forced, through violence and other means, to sit elsewhere. However, should passengers decide to voluntarily sit according to gender, it will be permissible.
The court also said that the Transportation Ministry must track the "mehadrin" buses' activity, "including every claim of violence or coercion of any kind and fulfill the necessary supervision according to instructions." 
In November, the committee recommended that while the separation is forbidden by law, it could be allowed to continue on a voluntary basis, as long as bus riders weren’t coerced into sitting separately.

The petitioners claim the mehadrin lines are illegal because they discriminate against women, restrict freedom of movement and fail to protect citizens from religious coercion.
This avreich, this menuval, does not know it, but by attempting to coerce this woman, he may be ruining the possibility of mehadrin bus lines some time in the future. Because (I would hope), if they are indeed tracking incidents of coercion, at some point in the future the Supreme Court might reexamine the evidence and agree with the petitioners that the situation as it stands indeed restricts freedom of movement and fails to protect its citizens from religious coercion.

3) Finally, encouraging kanoim is not a good idea in general. There is a principle of Chachomim, hizharu be-divreichem. And there is a concept of halacha ve'ain morin kein. Who knows where this will end, chas veshalom?


Rafi G. said...

interesting additional points.
I would ask regarding the last one, when does one talmudic dictum take precedence over another? You mention chachomim hizoharu... and Rav Elyashiv, supposedly, mentioned the proof of immodesty being called out in public - when does one override the other? how do we decide which one should be applied when and which should be ignored?

I suspect that people choose such applications based on their lifestyles and beliefs. someone who is more of a live and let live kind of person or someone who is more involved in kiruv, or someone who deals with the secular public or a different public might have one approach on this and many other issues, while someone more extreme, someone more insular, might prefer the other approach.
and the same would be true in many other realms

joshwaxman said...

i agree that there is a good part of meta-halacha, and the spirit of the law, operating here.

to clarify how i would understand that gemara, besides the reinterpretations i alluded to above (that it was not tznius in question or that even Rav Ada bar Ahava rued his actions), i would note that this story of Rav Ada bar Ahava is given as a example of behavior that even the later Amoraim did not engage in. it was because the earlier generation were so 'moser nefesh'. just as there are actions that are appropriate only for a gavra rabba, or someone's whose Torah is his profession, to the exclusion of others, some actions are appropriate for people who are really moser nefesh and kannaim in the positive sense (?), rather than simply being hotheads who want to impose their vision of Jewish religion and wish to be bullies. or something of that nature.

kol tuv,

Hillel Deutsch said...

R' Waxman,
Isn't the bigger issue here the fact that R' Elyashiv may have entered the halachic equivalent of the Tyson Zone? Anyone can say any chumra in his name and many of his followers will believe he actually said it. If the train is that far off the rails, it's hard not to ask few hard questions of the conductor...



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