Sunday, July 06, 2014

What is Bothering the Aruch Hashulchan? Women Wearing Tefillin

What is Bothering the Aruch Hashulchan?
Women Wearing Tefillin
Michael J. Broyde

Please note that this piece isn't meant to be construed one way or another as the view of the Seforim Blog.

In our previous article,[1] we focused on the view of the Mishnah Berurah concerning women wearing tefillin.  In this article, we focus on the Aruch Hashulchan, whose approach is also complex, reflecting the complexity of the area.

The Aruch Hashulchan (OC 38:6) states:

נשים ועבדים פטורים מתפילין מפני שהיא מצות עשה שהזמן גרמא דשבת ויו"ט פטור מתפילין ואם רוצין להחמיר על עצמן מוחין בידן ולא דמי לסוכה ולולב שפטורות ועכ"ז מברכות עליהן דכיון דתפילין צריך זהירות יתירה מגוף נקי כדאמרינן בשבת [מ"ט.] תפילין צריכין גוף נקי כאלישע בעל כנפים ובירושלמי ברכות שם אמרו תמן אמרין כל שאינו כאלישע בעל כנפים אל יניח תפילין אך אנשים שמחויבים בהכרח שיזהרו בהם בשעת ק"ש ותפלה ולכן אין מניחין כל היום כמ"ש בסי' הקודם וא"כ נשים שפטורות למה יכניסו עצמן בחשש גדול כזה ואצלן בשעת ק"ש ותפלה כלאנשים כל היום לפיכך אין מניחין אותן להניח תפילין ואף על גב דתניא בעירובין [צ"ו.] דמיכל בת שאול היתה מנחת תפילין ולא מיחו בה חכמים אין למידין מזה דמסתמא ידעו שהיא צדקת גמורה וידעה להזהר וכן עבדים כה"ג [עמג"א סק"ג וב"י ולפמ"ש א"ש[:

Women and slaves are exempt from the mitzvah of tefillin since it is a positive commandment that is time bound since tefillin are not worn on Shabbat and Yom Tov.  If they wish to adopt this as a stringency, we should protest.  This is not comparable to sukkah and lulav from which they are exempt, but nonetheless recite a blessing. This is because tefillin require extra diligence regarding cleanliness, as it states in Shabbat (49a) that tefillin need a clean body like Elisha .In the Jerusalem Talmud (Berachot) it says that anyone who is not clean like Elisha should not wear tefillin.  Even men must be careful [with cleanliness] when reciting the Shema and Amida which is why they do not wear them all day, as I noted in the previous paragraph.  If this is so, then why should women --- who are exempt [from the mitzva of tefillin] -- place themselves under this great risk, since for them, [wearing tefillin] when the Shema and the Amida are recited is comparable to men [wearing tefillin] the entire day.  Therefore, we do not permit them to put on tefillin.  Even though it recounts in Eruvin (96a) that Michal bat Shaul did don tefillin, and the rabbis did not rebuke her, we should not extrapolate from this, since they knew that she was very righteous and could be careful.  Slaves are in the same situation. [See the Magen Avraham 38:3 and the Bet Yosef; according to what I have written all makes sense.]

There are a few problems with the Aruch Hashulchan that are immediately clear. Four come to mind as requiring resolution in order to understand the Aruch HaShulchan:

·        Why does he not cite the primary source for the halacha of rebuking women, which is the Pesikta?

·        What are the characteristics of women who can put on tefillin according to the Aruch Hashulchan or does he mean that Michal bat Shaul is unique?

·        Can all slaves put on tefillin?  Can any?

·        What is the problem with the Magen Avraham and the Bet Yosef that he is seeking to answer?
In short to understand the Aruch Hashulchan’s approach, one must first comprehend what is bothering him about other approaches.  In this case, he tells the reader what is bother him when he notes in his final parenthetical note [[עמג"א סק"ג וב"י ולפמ"ש א"ש in which each word is abbreviate, but crucial to understanding, so we spell it out:

[עיין מגן אברהם סעיף קטן ג ובית יוסף ולפי מה שכתב אתיא שפיר[:
[See the Magen Avraham call note 3, and the Bet Yoesef, and according to what I have written all is 
In this note, Aruch Hashulchan is claiming that neither the Magen Avraham nor the Bet Yosef have properly solved the problem, and he thus doing so.  This paper is an explanation of that.

The Approach of the Bet Yosef:

Bet Yosef (OC 38) quotes Tosafot, as well as the Pesikta to explain the reasoning behind Chazal’s recorded disapproval of Michal bat Shaul wearing tefillin.  Bet Yosef states and elaborates:

כתב הכל בו (סי' כא) בשם הר"ם שאם רצו הנשים להניח תפילין אין שומעין להן מפני שאינן יודעות לשמור עצמן בנקיות עכ"ל ובספר ארחות חיים (הל' תפילין סי' ג) הקשה עליו מדאמרינן בריש פרק המוצא תפילין (שם) דמיכל בת כושי (פירוש בת שאול) היתה מנחת תפילין ולא מיחו בה חכמים. ולי נראה שטעם הר"ם כמו שכתבו התוספות (ד"ה מיכל) דאיתא בפסיקתא (רבתי פרק כב) שמיחו בה חכמים ופירשו הם דטעמא משום דתפילין צריכין גוף נקי ונשים אינן זריזות ליזהר והר"מ רצה לחוש לדברי הפסיקתא:

The Kol Bo (21) writes in the name of the Maharam that if women wish to wear tefillin, we do not listen to them, since they do not know how to keep themselves clean.  The Orchot Chaim (Tefillin 3) questioned this based on the Talmud in Eruvin 96a that Michal bat Kushi (daughter of Saul) did don tefillin and the rabbis did not rebuke her.  To me, it appears that the view of the Maharam is like that quoted by Tosafot (sv michal) as it appears in the Pesikta that the Sages did rebuke her. They explained the reason to be that tefillin need a clean body and women are not careful about such matters.  Maharam was concerned for the view of the Pesikta.

The Bet Yosef is clear and simple.  He thinks that there is a dispute between rabbinic sources about whether any women can ever wear tefillin.  The Babylonian Talmud rules that Michal bat Shaul can wear tefillin, and she is a model for all other women; the Pesikta states that such is prohibited to all women, even to women like Michal bat Shaul.  Some, the Bet Yosef claims, are concerned with the view of the Pesikta, which they think is normative.

Following his rules to resolve disputes, Rabbi Karo in the Shulchan Aruch rules against the Peskita and like the Bavli, as such is the resolution favored by Rambam, Rif and Rosh. Rabbi Karo states simply:

נשים ועבדים פטורים מתפילין, מפני שהוא מצות עשה שהזמן גרמא.
Women and slaves are exempt from the mitzvah of tefillin since it is a positive time bound commandment.

Nothing is codified to discourage this conduct; only an exemption is noted.  The view of our Talmud is codified and nothing else is cited.  According to Rabbi Karo, tefillin are like lulav, sukkah and shofar, which women need not, but may do, and is a mitzvah for them to do.  The Peskta is rejected.

The Approach of the Magen Avraham

The Rema, however, adds the alternative:
 הגה: ואם הנשים רוצין להחמיר על עצמן, מוחין בידם.
If the women wish to be strict for themselves, we protest.

The Rema seems to be adopting the view of the Pesikta that we ought to protest such conduct, essentially prohibiting it. Much is unclear about the Rama, including why and does he mean all women (although logic inclines one to think that he means all women.)

To explain the position of the Rama, Magen Avraham (38:3) write:

מוחין כו' - מפני שצריכין גוף נקי ונשים אינם זריזות להזהר אבל אם היו חייבים לא היו פטורין מה"ט דהוי רמי אנפשייהו ומזדהרי כנ"ל דלא כע"ת:
We protest: Since they need a clean body and women are not particularly careful with cleanliness; but if they were obligated, they would not be exempt for that reason since they would accept the mitzvah upon themselves and they would thus be conscientious.  Such appears to me to be the rule, and not like the Olat Tamid.

The whole thrust of the Magen Avraham is to explain the view of the Pesikta in contrast to the Bavli.  The Magen Avraham explains that the Pesikta rules once one is not obligated in donning tefillin, one is not careful to be clean and only those obligated are considered careful enough to wear tefillin.  The Magen Avraham’s view is simple and central.  The halacha follows the Pesikta’s view which is that the Rabbis made a decree that no one may don tefillin other than those who are obligated.  Even Michal bat Shaul may not. The Magan Avraham explains the Rama as clearly residing in the camp which rules that the halacha follows the Pesikta against the Bavli.  The whole thrust of the reasoning of the Magen Avraham is to reject the view of the Olat Tamid who argues that Rama is codifying only the rule that women who are not clean should be rebuked.[2]

Understanding the Aruch Hashulchan

The Aruch Hashulchan does not adopt either of these views.  He thinks that the halacha is balanced between two textual imperatives, and he thinks that neither the Magen Avraham nor the Bet Yosef has balanced them correctly, since one accepts that the Bavli is completely correct and one that the Pesikta is the rule.  Not so the Aruch Hashulchan: he accepts the ruling of the Pesikta as codified by the Rama that one needs to rebuke women who don tefillin, but he has to harmonize that ruling with the binding holding of the Babylonia Talmud, which is the center of his (and our) halachic universe that Michal Bat Shaul was not rebuked.

How does he do that?  The answer is clear.  He quotes the Rama’s ruling (twice!) that one rebukes women and then he explains the rule of the Rama consistent with the Talmud.  He never quotes the view of the Pesikta and explains the halacha exclusively on the basis of the Bavli.  His logic is simple and it can be laid out in almost mathematical form.

1.      We are very concerned about physical cleanliness and thus no men wear tefillin other than during morning prayer time when they are obligated to.

2.      Men are obligated and women are not.

3.    Thus, just like we discourage men from wearing tefillin all day long, we discourage women from wearing tefillin even during prayer, since they are not obligated.

4.     But (just like it is not prohibited for a man who is careful to wear his tefillin all day long[3]), it is not prohibited for a woman to wear tefillin if she is careful.  Only exceptional and rare women are careful in that way.

5.     The Babylonian Talmudic discussion about Michal bat Shaul is not – as the Bet Yosef claims – about all women, but only about special and unique women.  The Pesikta claim that the Bavli is wrong even about these special and unique women has to be rejected as the Bavli is controlling when directly on point.  But, in all other cases, we follow the Pesikta, since the Bavli can be read as only speaking about special cases.
Thus, while he quotes the Rama’s view that we must object to women donning tefillin, he modifies it in his last sentence of analysis -- exactly because it goes quite clearly and directly against our Talmud (the touchstone of Jewish law).  Aruch Hashulchan wants to make it clear that we do rule exactly like the Bavli, but as understood though the lenses of the Pesikta.  When the Peskita and the Bavli directly conflict or seem to conflict, then we have to adopt the rule of Bavli: when they do not, we adopt an explanation of the Bavli consistent with that of the Pesikta.  That explanation focuses on the rule of cleanliness, and rules that people who might be unclean and who are not obligated ought to be rebuked when they don tefillin.  In short, the Aruch Hashulchan rules that as a general rule women are rebuked (as the Pesikta states) but exceptional women are not, as the Bavli rules, but even the Bavli agrees that women generally should not don tefillin.[4]

The following things are then apparent from the Aruch Hashulchan.

·      He rejects the view of the Magen Avraham that all women and slaves are categorically prohibited from donning tefillin.

·        The Aruch Hashulchan does not cite the Pesikta because he thinks that the ultimate holding of the Pesikta is wrong, in that Michal bat Shaul is allowed to wear tefillin without rebuke.  But, he does not reject the rule of rebuke generally, as he is concerned that women will cavalierly don tefillin when they are not clean, and that should be discouraged and rebuked.

·        The Aruch Hashulchan thinks that, as a matter of theory, a slave and a cheresh (who are also not obligated in tefillin) are also allowed to wear tefillin when concerns of cleanliness are not present.  It is unclear from his formulation if he adopts the view of the Olat Tamid that all slaves can wear tefillin, or he adopts the view of the Tosaphot Yerushalayim that only slaves who are rare and special like Tevi are allowed to wear tefillin.  But, it is clear from the Aruch Hashulchan’s formulation with regard to a cheresh that one who is not obligated but clean may wear tefillin.[5]  (For reasons explained in the previous article on the Mishnah Berurah, in terms of tefillin law, both slaves and chereshim are harder cases than women.[6])

In Sum: The Aruch HaShulchan preserves the Talmudic rule of non-rebuke in a subset of case, as that is the rule codified in the Talmud.  This is consistent with a proper methodological understanding of the Aruch Hashulchan, who would be very hesitant to rule like a Pesikta against a clear Bavli.  He argues with the Magen Avraham and those many others who codify the rule that rebukes even Michal bat Shaul.  So too, he argues with the Bet Yosef who simply ignores the Pesikta completely.  The Aruch Hashulchan codifies both rules while giving priority to the Bavli when the two sources conflict. 

This approach of the Aruch Hashulchan explains why he is also comfortable arguing with the inclination of the Magen Avraham that even men should not wear tefillin other than during the times of prayer.[7]  Magen Araham is inclined to rule that once a man has fulfilled the tefillin obligation, he should not put them on again, since a man who has already donned tefillin is like a woman who has not, and neither may don again, (based on the rules of the Pesikta).  Aruch Hashulchab rejects the rule of the Pesikta as applicable to all women, treating it only as good advice and permits both very pious and unique men and women to violate it when it is clear that fears about cleanliness do not apply to them.  Such men he calls יחידי סגולה and such women he calls צדקת גמורה.

There is one important thing still unclear in the Aruch Hashulchan.  We do not know who else fits into the Michal bat Shaul rule besides her?  He classifies women who should not be rebuked under the heading of צדקת גמורה וידעה להזהר which literally means that “she was a completely righteous woman who knew to be careful [about cleanliness]”[8]

What is clear, however, is a few things.

1.      The Aruch HaShulchan rejects without citing[9] the view of the Olat Tamid 38:3 that the proper classification of women who may put on tefillin is as elderly, since the Aruch Hashulchan does not connect cleanliness to menstruation (other than in some factual way, as he does in OC 88:4).

2.      Furthermore, the Aruch Hashulchan does not limit to the rule of Michal bat Shaul to a functional null set, like other authorities, who nominally rule like the Bavli in the case of Michal bat Shaul and the Pesikta in all other cases, but insist that the Michal bat Shaul case is limited to daughters of kings who are also wives of kings, as the Levush does (OC 17:2) or various kabbalists (cited by the Klaf Hachaim 38:9) who limit it to women who cannot have children and do not menstruate.  These halachic authorities are trying to solve the problem of the Bavli being in conflict with the Pesikta as limiting the Bavli to a functional null set and the Aruch Hashulchan will have none of that.  To the Aruch Hashulchan, Michal bat Shaul is a functional case, as if he just sought nominal fidelity to the rule of the Bavli, he would have adopted some other rule that totally minimizes the Bavli.

3.   The Aruch HaShulchan, like the Mishnah Berurah before him, rejects without citing the view of the Gra (38:3) who rules that the Bavli and the Pesikta both agree that women ought to be rebuked for donning tefillin.

4.      The Aruch Hashulchan, like the Mishnah Berurah before him, rejects the rule of the Magen Avraham that all those who are not obligated in tefillin may not wear them.

Rather, the Aruch Hashulchan codifies two simple rules: (1) Women generally should not wear tefillin out of concerns of cleanliness; (2) special women who are righteous and clean may do so.

Of course, to what extent this has practical halakhic application is for a different discussion.  For example, there might be other rationales outside of tefillin law prohibiting such conduct,[10] or one could look to the view of the Magen Avraham and Pri Megadim and object to women wearing tefilin due simply to their lack of obligation.  But, the Aruch Hahsulchan standing alone as a matter of tefillin law does not flatly prohibit clean righteous women from wearing tefillin.

[2] As the Pre Megadim notes in his explanation of the Magen Avraham, the Ashel Avraham 3, Magen Avraham rules that all those exempt may not put on tefillin.  This is in direct contrast with the Olat Tamid (38:4) who writes:מהא דאמרנן דלא מיחו בה חכמים משמע דאם האשה זקנה וידעינן בה שיודעת לשמור את עצמה דאין למחות בה ובה"ג מיירי התם:
Nevertheless, the source that says the Rabbis did not rebuke Michal does imply that if a woman is elderly [i.e., post-menopausal] and we know that she is capable of watching herself [to stay clean], one should not rebuke her.  And it is such a case that the Talmud has in mind there [i.e. in me shemeto, where women are said to be exempt from wearing tefilin, not categorically forbidden from doing so].
[3] As Aruch Hashulchan OC 37:3 explicitly notes that uniquely rare men (“יחידי סגולה“) wear tefillin all day even nowadays.
[4] Much more can be said about how the Aruch HaShulchan address tensions between the Bavli and other Talmudic sources, which needs a much longer essay.   See generally
[5]Aruch  Hashulchan 37:12 states simply:
וחרש ושוטה ודאי דאין ליתן להם תפילין דבודאי לא יזהרו בקדושתם:
A cheresh and an insane person should not be given tefillin since certainly they will not be careful with their holiness.
Implying that such a person who can be careful is not prohibited.
[6] See the Mishnah Berurah article cited in note 1.
[7] See Aruch Hashulchan OC 37:3:
ויש שמשמע מדבריהם שמי שירצה עתה להניחם כל היום בבטחו שלא יפיח ולא יסיח דעת ומ"מ לא יניחם כל היום [עמג"א סק"ב] ולענ"ד לא נראה כן וכן שמענו שיש יחידי סגולה ומה גם בדורות שלפנינו שהיו נושאים כל היום ועכשיו נהגו ג"כ היחידים השרידים ללמוד מעט בהם אחר התפלה
There are those who wish to derive from their words that one who wishes to don tefillin all day, certain that he will neither pass gas nor lose focus, still should not do so [Magen Avraham 37:2] and inmy opinion this does not appear correct, and we have heard that there are unique special people even in the generations before us who donned tefillin all day, and even now it is the custom of a few to keep them on a bit after morning prayers.
[8] As I explain above, I think it roughly correspondent to the way he understands men who can wear tefillin all day, who he calls יחידי סגולה (unique and special people) -- special cases which actually do exist, but were not common.
[9] Unlike many of his contemporaries – including the Mishnah Berurah who cites the Olat Tamid more than 400 times -- the Aruch Hashulchan did not cite the Olat Tamid more than 15 times and even then only when he is cited by others (most commonly, the Aliyah Rabba).  I suspect that the Aruch Hashulchan did not actually have the Olat Tamid in his library as it was already a rare work.
[10] See for example, Piskai Teshuva 38:3 who provide one such reason or the recent teshuva of Rabbi Hershel Schachter who provides another.

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