Tisha B’Av: A Bifurcated Observance as Understood by the Rambam, by Rabbi Dr. Chaim E. Schertz

Rabbi Schertz received his semicha from Yeshiva University in 1969.  He also received masters in Jewish Philosophy from YU’s Bernard Revel Graduate School.  He has a second masters in the History of Ideas from New York University, and a PhD from New York University in the History of Western Thought.  He taught Classics in Pennsylvania State University and Philosophy at Regis College in Denver, Colorado. Rabbi Schertz served as the Rabbi of Kesher Israel Congregation in Harrisburg, Pennsylvania for over 25 years and is currently retired and living in Harrisburg.

In many aspects, the Talmudic texts which deal with Tisha B’Av are complex, disjointed and incomplete. The best known text which demonstrates this phenomenon is the following Braita.

All the commandments [mitzvot] that are practiced by a mourner apply to Tisha B’av. He [the mourner] is prohibited from eating and drinking, anointing his body, wearing leather shoes and marital intercourse. He is also forbidden to read in the Torah, the Prophets and the Writings…but he is permitted to read the book of Job and the tragic sections that are recorded in the book of Jeremiah. [Taanit 30a]

The problems with the Braita are obvious. The comparison it makes between Tisha B’av and the mourner are faulty at best. A mourner is not restricted from eating or drinking. Indeed, he is encouraged to eat immediately after the burial. He may even eat meat and drink wine which are restricted in the days preceding Tisha B’av.

Rashi tries to resolve these issues in the following manner:

These [food and drink] do not apply to the mourner, nevertheless the Braita mentions others which do apply like washing, anointing and wearing leather shoes. [ad locum]

Rashi, however, is also misleading in his interpretation because the Braita does not mention the prohibition against washing. Thus the Braita adds what does not apply and omits what does apply. Rabbenu Chananel is thus forced to totally reconstruct the Braita to read:

It is forbidden to wash, anoint, wear leather shoes and engage in marital intercourse. [Ad locum]

The issue of not washing because of Tisha B’av is actually recorded in two different locations: in tractate Taanit it discusses the prohibition of washing prior to Tisha B’av [ Taanit 30a ] and in tractate Pesachim it discusses the prohibition of washing during Tisha B’av itself. Here, however, the analogy is derived not from laws of mourning, but rather from laws that apply to Yom Kippur.

Rab Shisha the son of Rav Idi said … [Yom Kippur and Tisha B’av] are the same when it comes to their prohibitions. This is proof for what Rabbi Eliezer said, ‘it is prohibited for a person to insert his finger into water on Tisha B’av as it is to insert his finger on Yom Kippur.’ [Pesachim 54b]

We thus notice that with the exception of eating and drinking all of these prohibitions or afflictions apply equally to mourning, Yom Kippur and Tisha B’av. What exactly is the relationship or the connection between those three events?

Yom Kippur is not a period of mourning. The Torah commands us to afflict ourselves in order to enable us to achieve a requisite level of T’shuva or repentance.   This allows God to grant us forgiveness or atonement. The Rabbis determine that the major affliction which the Torah requires is the refraining from eating and drinking. In addition, there are several minor afflictions based upon various scriptural passages which allowed the Rabbis to impose other restrictions such as prohibitions against bathing, wearing leather shoes, anointing of the body and marital intercourse. These restrictions are imposed not to restrict or eliminate the aspects of joy, but rather to reinforce the possibility of doing T’shuva. By separating from the normal world, one is less likely to be distracted by it and to totally focus his attention on God and realize how crucial it is for man to return to Him.

There is no requirement to grieve or reject simcha or joy on Yom Kippur. In fact the opposite is true. We experience great joy by knowing that our trespasses will be forgiven and that we will be sheltered under the Divine Wings.

Tisha B’av also expresses the element of T’shuva [repentance] but renounces any joy and adds the element of mourning for the Temple. These elements go into effect slowly on the days prior to Tisha B’av as the person is removed from the normal conditions of life. We begin to recognize that a national catastrophe has occurred to us by the destruction of the Temple. And thus, the T’shuva that takes place on Tisha B’av is a recognition of the punishment already meted out to us. All the afflictions to which we submit and the normalcy of life that we reject form a petition to God to remove us from this unbearable state of life through the rebuilding of the Temple and the return to the land of Israel. The level of rejection of joy is taken so far that even the process of learning Torah is greatly restricted. This in no way applies to Yom Kippur. Thus, the nature of the T’shuva which occurs on Yom Kippur is radically different from the one expressed on Tisha B’av. On Yom Kippur we express the belief that God has accepted our prayers and will not punish us for our transgressions. On Tisha B’av we live with the hope that God will lift the afflicted life in which we currently live and overturn the judgment that He has already passed upon us. Thus, our status in which we approach God on Yom Kippur is one of normalcy while on Tisha B’av we approach God in an abnormal living situation.

The status of the mourner introduces a completely different element than the prior two. A mourner has already been removed from normal life in a way that is more personal and heart – wrenching than any expression of communal grief. Personal grief is often a state of being which leads to the total negation of life and even the consideration of ending it. It is for this reason that Jewish Law requires the mourner to express those feelings by rending his garments. The Rabbinic process is to slowly, over a period of substantial time, return the mourner to normal life. Thus, the first requirement that the rabbis require of the mourner is that he eat and drink and that he does not express his grief through fasting which might be his natural tendency in his desire to end his life. Immediately after burial of a relative the community asks him to return by offering him a meal which he is required to eat.   There is no restriction on what he can eat. He can even eat meat and drink wine. The other limitations which are similar to those of Yom Kippur and Tisha B’av are still observed until they also are removed from him over time and until his complete re-entrance into normal life.

TISHA B’AV IN RELATION TO OTHER HISTORICAL FASTS

The Mishna states that prior to the establishment of a Jewish calendar, when the new month was determined by witnesses, messengers were sent in advance of any major Jewish holiday to outlying communities to inform them of the proper time for the observance of these holidays. Included in this process was the observance of Tisha B’av. Messengers were sent by the court in Jerusalem on the first day of Av to reach the location of dispersed Jewish communities prior to the 9th of Av. This did not occur with any other fast day. [Rosh Hashanah 18a]

To deal with the problem of why the court did not send messengers before any other fast day, Rav Papa in the Talmud established a distinction between Tisha B’av and all the other fast days. The distinction would be consequential for commentators a thousand years later. Rav Papa stated:

At a time when there is peace they [the fast days] shall be days of joy and happiness. If there is a royal decree [specifically targeted against Jews] they shall be days of fasting. At a time when there is no decree and no peace if they [the Jews] want they can fast or if they want they do not have to fast. If this is so Tisha B’av should also be included in this category. Rav Papa replied that Tisha B’av is different because a series of troubles occurred on that day. [Rosh Hashanah 18b]

It should be noted that on this Talmudic passage the Magid Mishna interprets the word peace to refer to the rebuilding of the Temple. He is obviously troubled by the concept that peace equals joy. There must be something more than the lack of oppression for a celebration to take place. And thus he connects that term to Israel’s greatest joy the rebuilding of the Temple. Rashi, however, explains that peace could simply mean a time when Gentiles cannot exercise power over Jews. The absence of peace is when Jews are subject to discrimination. If neither condition exists (i.e. neither peace nor a royal decree) then fasting becomes a totally voluntary act. If that is so, why then is there a requirement to send messengers to announce the fast of Tisha B’av? The Talmud explains that Tisha B’av differed because of a series of tragedies that occurred on that day. This is challenged by the Tosafot because a series of tragedies also occurred during the 17th of Tammuz. The answer however is that the gravity of the destruction of the Temple exceeds all other tragedies. In addition, the same tragedy occurred twice on about the same day. As a result of this condition, the fast of Tisha B’av was not based upon the individual decision of the people or indeed because of a minhag [custom] but rather it was established as law and thus required that messengers be sent to announce its coming.

WORKING ON TISHA B ’AV

The question of whether a person is permitted to work on Tisha B’av has crucial ramifications. The term work or “melacha” in this instance is not the concept of melacha which normally applies to the Sabbath or Jewish holidays. Here it is the normal routine which occurs during the week. The implication of this question has to do with the principle of Avelut [mourning] which may or perhaps may not apply to Tisha B’av. Normally a mourner may not appear in public during the initial seven days of his mourning. Going out to work is a violation of this principle. Gauging the nature of this application to Tisha B’av will enable us to understand how the issue of mourning is understood within the context of Tisha B’av.

The mishna states as follows:

A place where the custom is to do work on Tisha B’av we are permitted to work. A place where the custom is not to do work on Tisha B’av we are not permitted to work. And in all places [no matter what the custom is] scholars must refrain from doing work. Rabbi Shimon ben Gamliel says,“a lay person should always adopt the practice of the scholar.” [and refrain from working] [Pesachim 54b]

The Talmud challenges the position of Rabbi Shimon ben Gamliel with reference to a different law: whether a bridegroom is permitted to recite the “Shma” on the night of his wedding. [see Brachot 14a].   Rabbi Shimon ben Gamliel rules that the bridegroom, if he is not a scholar, should not adopt the practice of scholars and should not recite the “Shma” for if he does so he will be engaged in arrogance [YOHARAH]. Why then does Rabbi Shimon ben Gamliel encourage lay persons to adopt the practice of scholars in the matter of working on Tisha B’av? The Talmud draws a distinction between the case of the bridegroom and the issue of not working on Tisha B’av and thus pretending to be a scholar. In the case of the bridegroom, one may attribute his act of saying “Shma” to arrogance. In the case of not working on Tisha B’av, there is no necessity to attribute the lack of work to the pretensions of scholarship because there are enough people who are out of work that it would make it difficult to ascertain why any particular person is not working on any given day.

It should be noted that in Tractate Taanit 30b Rabbi Shimon ben Gamliel maintains that not working is unrelated to any issue of emulating scholars. In a practical vein he states that not working more readily enables one to fast.

THE RAMBAM’S ANALYSIS OF TISHA B’AV

What is first striking about the Rambam’s account of the historical fast days is that he does not distinguish between Tisha B’av and the other fasts. [see Hilchot Taaniyot 5:2] According to his understanding, they are all equally based upon minhag or custom. If that is true, then several consequences follow. First, in a situation when there is neither peace but at the same time there is no specific decree against the people of Israel the fast days that are inferred from the prophets are all based on the will and free choice of the people [Ratzu or Lo Ratzu]. This appears to be against the ruling of the Talmud that Tisha B’av is to be understood as a different type of fast based on rabbinic obligation and is in no way dependent on the will of the people. In addition there is a second objection because the Mishna specifically requires that messengers be sent out to announce the coming of Tisha B’av and that is not required for the other fasts. What then sets Tisha B’av apart? Finally, what does the Rambam gain by this methodology when he himself points out the far greater severity which Tisha B’av possesses?

The Magid Mishna recognizes this problem but offers no solution. He simply repeats the conclusion that is stated by the Talmud and notes that all the fast days have become obligatory [Chova] and there is no need for additional speculation.

What the Rambam gains by establishing the basis of Tisha B’av as a minhag (custom) instead of a Rabbinic edict is far greater latitude in his ability to apportion the various obligations that are established by Tisha B’av. This specifically applies to the three categories that we have been discussing namely: T’shuva; the limitation of Simcha; and Avelut.

As we proceed through the laws of Tisha B’av which the Rambam recorded, we find a novel and remarkable feature. The Rambam distinguishes between those obligations for which all Jews are responsible and specific ones which do not apply to the general population, but only to rabbinic scholars or Talmidei Chachamim. Specifically, the aspects of T’shuva and the diminution of Simcha apply to all. Avelut and its obligations are limited only to scholars.

This is evident in the following rendition of the laws of Tisha B’av. In Hilchot Taaniyot 5:6, the Rambam describes the restrictions of Simcha that begins on the first day of the month of Av which are rooted in minhag. These restrictions are increased in intensity during the week of Tisha B’av. The various restrictions are expressed in matters such as not cutting of the hair; not washing clothing; not wearing freshly cleaned and pressed clothing; and not eating meat or drinking wine during this period.

On the eve of Tisha B’av the restrictions are more intense and have the force of law rather than minhag [custom]. There can be no eating of meat or drinking of wine that could have been used during the time of the Temple for sacrifices and libations.   This limitation did not apply however before noon when there was no legal limitations at all.

In Chapter 5, Halacha 9, the Rambam adds an analysis which is not found in the Talmud:

. . . This is the practice [or measure] of the general population that are not able to endure too much suffering. However, the Chasidim HaRishonim [i.e. those who were righteous] had the following practices: On the eve of Tisha B’av they ate alone, bread dried in salt which was then dipped in a container of water, and sat near the oven and ate it and drank from a pitcher of water with a demeanor of deep worry and concern and a sense of total loss and wailing as one would do in the presence of a corpse of a close relative who had just died. It is fitting for scholars to do likewise and even more than this. . . [Hilchot Taaniyot 5:9]

This practice of the scholars is based upon a Talmudic account of the custom that was attributed to Rabbi Yehuda bar Ilai [see Taanit 30 a-b]. It must be noted, however, that in the Talmudic account there was no differentiation between scholars and non-scholars. It was merely a story that was related about Rabbi Yehuda bar Illai. The Rambam, however, treats this particular story as a universal account. To the Rambam, Rabbi Yehuda bar Illai represents all scholars and eliminates non-scholars from this standard. Thus, according to the Rambam, the Talmud is not interested in relating an Aggadic account of a certain rabbi, but rather is stating a principle which encompassed the requirement upon all scholars.

It is clear that the practices recorded here connote more than a diminution of Simcha. Rather, this is a behavior that is associated with Avelut. One cannot fail to conclude that what the Rambam has done is restrict the practices which occur in mourning only to scholars and furthermore indicated that they should not be engaged in by non-scholars who are unfit for the task.

In Chapter 5: Halacha 10, the Rambam discusses the afflictions which apply on Tisha B’av itself which are identical to those found on Yom Kippur. They include: washing the body; anointing the body for pleasure; the wearing of leather shoes; and cessation of marital intercourse. These are added to the fast which begins at sundown and ends the following nightfall. These are all issues which apply to the whole population and are directed at doing T’shuva. There is no need to view them in the context of Avelut. Indeed the Rambam ends this listing, “as is on the Day of Atonement.” [K’yom HaKippurim] This is not the way the Rambam treats the issue of working on Tisha B’av.

As we have previously indicated, the principle of “Melacha” or work on Tisha B’av is described in the Mishna [Pesachim 54:b]   The issue of working for the average person is based upon the specific custom of his community. Scholars, however, no matter what community they live in, are required by Law to refrain from work. Rabbi Shimon ben Gamliel added to the Mishna the requirement that everyone who is not a scholar should nevertheless accept upon himself the restriction of scholars and refrain from working on Tisha B’av.

At the end of Hilchot Taaniyot Chapter 5 Halacha 10, the Rambam quotes the Mishna, but totally omits the statement of Rabbi Shimon ben Gamliel. It is difficult to understand why he would do so. Rabbi Shimon ben Gamliel did not come to argue or contradict the Mishna. He simply added a caveat which agreed with and in fact enhances what the Mishna attempted to state. There can be only one reason for this omission. The issue of not working on Tisha B’av is a condition of Avelut. One who is in mourning is not permitted in public during his primary mourning period.

It was very important for the Rambam to establish a clear distinction of Avelut between a scholar and a non-scholar when it came to the matter of Tisha B’av. Thus, the caveat of Rabbi Shimon ben Gamliel that people may not necessarily identify a non-scholar as falsely pretending to be a scholar was not good enough for the Rambam. As a matter of principle, the law of mourning was purely applied to the scholar and no facade should cloak it.

This principle becomes more evident when we continue with the next law, Halacha 11.

Scholars do not greet each other on Tisha B’av. Rather they sit forlorn and hopeless as mourners, and if an ignoramus greets them they answer in a low voice and stern countenance. . . [Hilchot Taaniyot 5:11]

The law forbidding scholars to greet one another is based on the Tosephta and the Jerusalem Talmud. The distinction is made clear in these sources that scholars have separate obligations on Tisha B’av in matters which are normally related to Avelut. The Rambam utilizes this example as a basis for the general principle that all matters dealing with Avelut should be restricted only to scholars.

This section of the law concludes with activities that could only apply to scholars and is an intrinsic part of the scholarly activity – the process of learning Torah. Mourners may not study Torah because the study of Torah is an expression of the greatest joy, and the scholar may not express that joy while mourning on Tisha B’av.

. . . And it is forbidden to study on Tishah B’av, the Torah, the prophets and the writings and the Mishna and books of Law and the Gemara and the Aggadot. One can only read the book of Job, Lamentations and the bad incidents which occur in the book of Jeremiah. . . [Hilchot Taaniyot 5:11]

This section concludes with an unusual law. “And some scholars practice not to wear the T’fillin of the head.” [Hilchot Taaniyot 5:11] The Magid Mishna clearly states that it is permitted to wear T’fillin on Tisha B’av as on any other day. [Magid Mishna ad locum] This specific restriction can only apply to scholars. This is an additional confirmation that the issue of Avelut is purely restricted to scholars. The T’fillin of the head demonstrates pride and glory, and not wearing it is an expression by the scholar of the deep sense of grief that the glory of Israel has been taken away from us.

In the laws dealing with Tisha B’av the Talmud does not make distinctions between scholars and non-scholars. This applies to all aspects of Tisha B’av – T’shuva, diminution of simcha and even Avelut. We saw this clearly at the end of tractate Taanit where the Talmud states: “All matters that apply to mourners apply to Tisha B’av.” This is a general statement which makes no distinction between scholars and non-scholars. It is the Rambam who interprets the Talmud through the distinctions which he creates between scholars and non-scholars in matters of Avelut.

The Rambam understands that all Jews are required to fast when great calamities occur as part of the process of doing T’shuva. In addition, fasting and T’shuva have greater chances of success in an environment where normal expressions of joy and happiness are diminished. Thus, the restrictions of Tisha B’av are logically derived from Yom Kippur, the source of T’shuva and Atonement.

Avelut is a totally different process. It is a personal matter and cannot be universally imposed. A death of a close family member or close friend can only be truly felt by immediate family members or friends of the deceased. Only they can appreciate the loss or the void that has been left in their lives.

Who is able to mourn the loss of the Beit Hamikdash except those who understand its intricate role in Jewish life and Jewish tradition? Only scholars can truly experience the destruction which so robbed them of a fully enriched Jewish life. Only they can fully realize that the Temple occasioned the diminution of God’s Shechina in our midst. To the average person, for the most part, life continues as it has before.

This is akin to actual mourning where only close relatives of the deceased are required to express their sorrow and grief through the laws of mourning. If a non-relative wishes to join the family in expressing mourning, this would be seen as an affront rather than a tribute.

The Talmud records that after the Temple was destroyed, the Rabbis, living in deep shock and mourning, discussed forbidding all the items that were part of the Temple Service. They seriously considered banning the eating of meat because it could no longer be sacrificed; the drinking of wine, for no libations could be poured; all grains, for meal sacrifices were no longer possible; fruit, for bikurim could no longer be brought; and even water, because it could not be poured on the alter during Succot. [Bava Basra 60b]  The choice was between life and death. Fortunately they chose life; but it would never be a truly full life for scholars until the Temple was rebuilt. To the Rambam, only such people could truly mourn the destruction of the Beit Hamikdash. Let us hope that it will be rebuilt quickly in our lifetimes.

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