Putting Customs in Their Proper Place: Two Responsa of R. Moshe Feinstein Written on 7 Kislev

I have been writing this series based on serendipity, on finding responsa written on a certain random date in the Jewish calendar (the date of the Shabbat on which I am delivering that shiur). One of the interesting discoveries I have made is that certain dates are dominated by specific rabbis—I have found dates on which Hatam Sofer wrote multiple teshuvot in different years (and not others), and R. Moshe Feinstein and R. Ovadya Yosef as well.

I’m not sure whether this is more than coincidence, but it does feel somewhat that way, as if the rhythms of different rabbis’ lives made certain dates more propitious for them to write responsa.  For the 7th of Kislev, I found six responsa by R. Moshe Feinstein (in different years), two of which I share with you here.

Following Custom

In a responsum from 1976, Orach Chaim 4;34, R. Moshe was asked about a cantor in Paris.  He was originally from elsewhere, and brought with him various customs that ran counter to local practice. The rabbi of the synagogue sought R. Moshe’s advice for whether to try to change the man’s behavior, and how seriously to take his possible recalcitrance.

R. Moshe first noted an issue that often gets neglected or ignored, that diverging from local custom is a religious problem in two ways. First, there is a prohibition in the Torah of lo titgodedu, which rules out creating rifts in the Jewish people (how we have gotten to the rifts we see today is a case by case question, but the ideal was that Jews were supposed to live in unified communities, with all adopting a central set of customs and practices). 

The second issue is the rabbinic principle that we should not act differently than those around us, for fear of causing strife.  The most well-known example of this idea is the set of rules around observing one or two days of Yom Tov in a place where the common practice is the other way.  Israeli Jews stuck outside Israel for Yom Tov, for example, are not allowed to violate Yom Tov if they are in a place of Jewish habitation, because that would be seen as a source of tension with the local Jews (I note that the Talmud seems to assume this applies even in private, that such a Jew could not, for example, watch TV in the room where he is staying, because the rule applies even there).

Those two barriers to acting the way you personally want to, R. Moshe notes, apply even when there is a question of real halachic importance.  Wearing tefillin on Chol haMoed, for example, has reasonably high stakes. If tefillin should be worn, those who do not are neglecting a commandment in the Torah. In reverse, those who wear tefillin– if in fact the sanctity of Chol haMoed militates against so doing– are honoring the holiday insufficiently.

Blatant and Hidden Acts

R. Moshe suggests the man in Paris can stay in his position as long as he can cover up his differences from the community. In his case, that involved three issues: saying vidui, the ashamnu, bagadnu articulation of sins, on days the congregation did not; saying the 13 Attributes of God on days the community did not; and wearing tefillin at minchah.

R. Moshe’s suggestions regarding each are enlightening.  He allowed the man to recite vidui as long as he did not beat his chest as he was saying it.  While this might seem simple, I noted earlier that when it comes to observing a second day of Yom Tov (or not), we often require more than that it not be obvious.  R. Moshe seems to have felt that simply reciting words that others did not would not be sufficient to be seen as adhering to a different custom.

That is not a tenable claim for the question of saying the 13 Attributes of God (i.e., Hashem, e-l rachum ve-chanun, etc.).  There, we require the presence of a minyan (as we do during selichot), so there is no way for the man to act this way in “private.” I note that R. Moshe does not suggest the man say the 13 Attributes to himself, reading them as if he were reading the Torah. While many allow that, I think R. Moshe thought that that is only allowed because it is no longer a recitation of the 13 Attributes, it is a reading of a Biblical verse. In this instance, then, the action is too necessarily public to allow.

Tefillin at Minchah: A Custom to Refrain?

This man’s custom was also to wear tefillin at minchah, which most of us refrain from doing for fears of yuharah, of seeming arrogant. The arrogance stems from the fact that we generally limit our tefillin-wearing time, because we are not confident we can act properly towards them.  The mitzvah to wear tefillin, after all, applies all day—it is only because of our recognition of our inability to treat them with the respect and awareness they deserve that we do not. In this man’s former community, apparently, minchah was also seen as a limited enough time that men could safely wear tefillin and fulfill the mitzvah.

This background explains R. Moshe’s permissive ruling.  Since everyone agrees that it is a mitzvah to do so, it is incorrect to say that they have a community custom not to—rather, the community generally foregoes it, regretfully, for fear of misstepping. If this man’s custom is to do so (that he was only continuing the custom in his hometown, R. Moshe thinks, forestalls seeing him as arrogant), that is not a problematic divergence from the community.

The Definition of Custom

R. Moshe’s discussion reminds us of several unclear aspects of Jewish religiosity. First, we can recall the ideal, that the Jews in a certain place (we limit it to a particular shul, but the ideal was that each town or city have a unified practice) follow the same practices. Second, that even when there is room for differing practices, we still need to be sensitive to not following our own practice in a way that is unnecessarily disturbing or distressing to the general populace. Third, in many cases, that which we cannot see should not bother us—if someone else is saying words that are between them and God, we need not know whether those are the same words we would have said.  Finally, not every communal practice rises to the level of custom; the choice to wear tefillin when others do not  might be arrogant, but it is not a flouting of local custom.

I note that R. Moshe writes that the rabbi should warn the man that he risks losing his communal position if he does not follow the rules being set down.  There is a firmness here that we sometimes forget, but that is important to working fruitfully and productively with others—we try to be cooperative and to make as much room for individual tastes as possible, but we also have a rock-bottom we are willing to enforce.

Where Do We Put the Menorah?

The other responsum I thought interesting, from the next year, and printed in Orach Chaim 4;128 discusses where to place the Chanukkah menorah. The Talmud ordains placing it outside the door to the street, to the left of that door, so that we would be surrounded by mitzvot as we enter and exit—a mezuzah on the right, a menorah on the left.

For hundreds of years, leaving a menorah outside has not been feasible, and many Jews have lit in their homes. R. Moshe was asked whether it wouldn’t be better, in that context, to put the menorah to the left of the door, and his answer captures an important truth to remember.

He notes that the main concern in placing the menorah is pirsumei nisa, publicizing the Chanukkah miracle. Only within that larger concern did the side of the door become a question. Once lighting indoors, the first question is still what place will maximize pirsumei nisa, and the answer is obvious—near a window (which is where, R. Moshe reports, he lights). 

Rambam has a similar example, where he was asked about whether to allow a yibum, a levirate marriage, if the wife had already been twice widowed. He upbraids the questioners for mixing a Torah preference—levirate marriage; in the Sefardi custom, it is preferable for the widow to actually marry the brother, not just perform a halitzah—with the customary practice of not marrying a woman twice widowed. Firmly and unequivocally, he says the marriage should take place.

The key is keeping track of priorities and then building from there to a reasonable practice. R. Moshe’s two responsa for 7 Kislev show us this process in action.

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Mr. Martin Kaufman was educated at Yeshiva Universty and New York University"s Graduate School of Business Administration. Was Chairman and CEO of Philipp Brothers, formerly one of the world's largest commodity trading companies. He is a global consultant to entities in the financial and natural resource sectors all over the world. Mr. Kaufman has lectured extensively in numerous Adult Education programs for many years and presently gives shiurim in the New York City area. He has also served on two boards of Yeshiva University, amongst many other Boards. Mr. Kaufman lives in Manhattan with his wife and three children.

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