Tuesday, July 21, 2009

Shoes and Gentiles on 9th of Av

Shoes and Gentiles on 9th of Av: The Problem of Being Mocked
by Rabbi Michael J. Broyde*

There is a well established halacha that one may not wear leather shoes on the 9th of Av and this prohibition is listed in the Shulchan Aruch in the same manner as the other central prohibitions of the days. Consider, for example, the simple formulation in Shulchan Aruch OC 554:1.

תשעה באב אסור ברחיצה וסיכה ונעילת הסנדל ותשמיש המטה
On the 9th of Av, it is prohibited to bathe, anoint, wear leather shoes and have marital relationships…
Indeed, there are numerous Talmudic and post Talmudic sources supporting this understanding of the halacha which makes no distinction between any of these four prohibitions: none are permitted unless one is seriously ill and the violation of the prohibition is part of the cure.

Click here to read moreBut yet, the Tur (OC 554) seems to disagree with this formulation. He states:
ואיסור נעילת הסנדל כאיסורו ביה"כ דוקא של עור אבל של בגד או של עץ או של שעם וגמי מותר תנא אבל ומנודה שמהלכין בדרך מותרין בנעילת הסנדל ולכשיגיעו לעיר יחלוצו וכן בט"ב ותענית צבור כתב אבי העזרי נראה דבזמן הזה שאנו בין הא"י שאין לחלוץ אלא כשנכנס ברחוב היהודים או בבית ישראל.
The prohibition of wearing shoes on the the 9th of Av is like the prohibition on Yom Kippur, specifically of leather – but of cloth or wood or cork or rubber are permitted. The Mishnah recites that a mourner or one who is excommunicated who are on the road are permitted to wear leather shoes, but when they come to the city, they should remove them, and the same is true for the 9th of Av and a public fast day. It states in the Avi Ezri that it appears that nowadays when we live among the Gentiles, one should not take off one’s leather shoes until one comes into the street where Jews live or the house of a Jew.
Indeed, this leniency – that one need not go barefoot among Gentiles – is not unique to the Avi Ezri, but is quoted by many other rishonim such as Rabbenu Yerucham (18:2:164), the Mordechai (Moed Katan 934) and Hagahot Maimoniot (5:300). The basic rationale that they all repeat is that the Gentiles, when they see us walking barefoot as a sign of mourning, will laugh at us. Since they will laugh at us, these poskim aver, we ought to avoid being laughed at, and can wear leather shoes until we are out of their sight in our own street or house.

Bet Yosef, while he cites these poskim, rejects them completely and his reason is worth considering. He states (Bet Yosef 554):
ולענין מעשה אין להקל בדבר ואם ילעיגו עליו הגוים מה בכך
As a matter of practical halacha, one should not be lenient on this matter, and if the Gentiles mock us, who cares.
Rama disagrees and accepts the view of the Avi Ezri. He states (OC 554:17):
וכן במקום שדרים בין הא"י, לא יחלוץ כי אם ברחוב היהודים, וכן נהגו
So too, in a place where we live among the Gentiles, one should not take one’s shoes off and that is the custom.
The Magen Avraham explains the reason for the Rama (in his notes 554:17 & 18) as follows:
)יז( נ"ל הטעם דטורח גדול הוא לילך רחוק יחף אבל כשהולך לשדה סמוך לעיר אסור לנעול וה"ה לבית הקברות עבי"ד ססי' שפ"ב אא"כ יש טיט ורפש או בין העכו"ם ונ"ל דכשיושב על העגלה או רוכב צריך לחלוץ אפי' בדרך רחוק:
)יח( ואע"פ שמשכירין קצת חניות לעכו"ם ועכו"ם עוברים שם אסור (רש"מ סי' י"ט) ונ"ל דאם הרבה עכו"ם עוברים שם מותר:
(18) It appears to me that the reason [one may wear leather shoes] is that it is a great stress to go barefoot, but when one goes to a field close to the city, it is prohibited to take off one’s shoes, and the same is true when one goes to a cemetery. See also YD 382:4-5 that this is only true if there is tar or mud or one is among Gentiles. It appears to me that if one is in a carriage or on a horse one needs to take off one’s shoes, even for a long journey.
(17) Even though we rent some stores to Gentiles, and Gentiles go even in the Jewish area, it is prohibited to wear shoes; but it appears to me that if many Gentiles are present, it is permitted to wear leather shoes.
Understanding the Magen Avraham is important to this topic. What he really means by this is the fact that the Gentiles mock us for going barefoot on this day hurts enough that one need not go barefoot, as the Talmudic Sages did not decree this form of mourning in the face of such psychological pain. (Of course, as Kitzur Shulchan Aruch notes in 124:11, even in such a case, one should put dirt or dust on one’s shoes so one should not be perfectly comfortable, as others note.)

Chayei Adam rejects this rationale and accepts the view of the Bet Yosef. Indeed, he adds a modern anti-Semitic twist. While Bet Yosef tells us that we should ignore being mocked as who cares, Chayei Adam states this rule differently: He writes (135:11):
דמה בכך שילעיגו עלינו הנכרים, בלאו הכי מלעיגים עלינו.
What difference does it make that Gentiles laugh at us for going bare foot, even with out this, they laugh at us.
Chayei Adam seems to rule that since they laugh at Jews all the time, there is no reason to permit this leniency now. According to the Chayei Adam, our current times might be different yet, as a Jewish business professional is not generally laughed at, but might well be, if he went to work barefoot.

While the Mishnah Berurah quotes this Chayei Adam in 554:36, it is clear in context (see his notes 33-35) that he is inclined to accept the rule that Jews who work among Gentiles and will be mocked if they go barefoot, may wear shoes. This is made explicitly clear in Mishnah Berurah 554:1, where he states in passing:
אך אותן ההולכים בין הנכרים ועוסקים במשא ומתן אחר חצות אותן מותרין לנעול:
Those who go among the gentiles and work after mid-day are permitted to wear shoes.
(I saw one commentator who seems to have misread this Mishnah Berurah to only permit shoes after mid-day, but this is a mistaken read of the Mishnah Berurah. The Mishnah Berurah only permits work after mid-day (see Rama OC 554:22 and the comments of the Mishnah Berurah) and thus only permits shoes after mid-day. But those who work all day, may wear shoes all day even according to the Mishnah Berurah.)

The Aruch Hashulchan is similarly lenient (554:16) and he notes that many rely on this view to wear leather shoes in all the larger cities.

The crucial question is what is the basis for this leniency? Why should it matter if people poke fun at Jews for observance of mitzvot? Indeed, is that ever a license to cease keeping the mitzvot?

I would like to suggest two different approaches, each with its own intellectual insights and limitations. One approach is grounded in general rabbinic concern for human dignity. In this view, rabbinic decrees to do something (like go barefoot) or to not do something (like wear leather shoes) are simply not generally applicable in cases where their observance causes significant failures of human dignity. In this approach, being mocked by one’s Gentile neighbors is a failure of kavod habriyot and is grounds for declining to fulfill the positive commandment of going barefoot on the 9th of Av. As the fine Encyclopedia Talmudit article “Kavod Habriyot” notes (volume 26:477-542 at page 528) “Rabbinic commandments are pushed aside in the face of human dignity even by an active violation, as the Talmudic Sages permitted such violations.”

I would suggest that there is a second explanation as well. The second view centers more around unique aspects of the 9th of Av and argues that the obligation to go barefoot on the 9th of Av is different from the other prohibitions of the day. Just like the Talmudic Sages did not decree that a mourner ought to go barefoot on a long trip, or that a person on the 9th of Av should walk through a muddy field or a rainy puddle, so too, the rules of the 9th of Av are such that one need not mourn in a way that causes one to be very uncomfortable, whether physically or emotionally. I think this is the explanation adopted by the Aruch Hashulchan in 554:17 who links walking in the rain without shoes, walking a long distance and walking among Gentiles all together and contrasts the halacha with regard to these three activities on the 9th of Av with the same conduct on Yom Kippur, where even being uncomfortable is not a license to wear shoes (but a much higher threshold is needed). This thus explains as well the view of the Chayei Adam, whose style is never to reject the Rama and adopt the view of the Shulchan Aruch. His comment is not a rejection of the Rama at all in the case, but merely noting that Jews are so mocked in general society already, that this additional mocking hardly can make anyone uncomfortable, and is thus to be ignored.

Of course, there is the alternative view adopted by the Shulchan Aruch, which is that Jews ought not be sensitive to these kinds of mocking conversations by our neighbors, but that is a different side of this dispute and is directly rejected by the breadth and depth of Ashkenazi poskim who seem to mandate that shoes be worn if Gentiles will mock us going barefoot.

Three final thoughts in this very sad season:

First, like many difficulty questions of yesteryear, technology has made our life easier and in all but the most unusual situations (such as the military, or fire-fighters, both of whom are in unique categories and have to wear very specific shoes) even one who must go to work on the 9th of Av can purchase very nice looking non-leather shoes and avoid this dispute. That is the custom nowadays.

Second, we now live in a society where Jews ought to seek to conduct themselves in ways that cause the Gentiles around us not to mock us. Halacha frowns on letting Jews be mocked and certainly when not mandated by halacha must be avoided. Indeed, it is my view that the Rama mandates and does not merely permit the wearing of shoes when around Gentiles who will mock us for going barefoot, reflecting a realization that being mocked is such an unwise idea. This should govern our conduct as Jews in the public square all the time, and not merely on the 9th of Av.

Third, all of us yearn and pray for the return of the Bet Hamikdash to its proper place and the redemption of the Jewish people in our time, so that these matters cease to be relevant discussions of halacha as the 9th of Av will be a day of happiness and joy.

Written in honor of my son, Aaron Broyde, who has chosen to serve along with the rest of his hesder class as Yeshivat Petach Tikvah in the Israeli Army. He was inducted into the army right before the beginning of the three weeks, and starts his basic training in the IDF soon after the 9th of Av. May God watch over my beloved son – and all of our beloved children in the Israeli Army – with particular care and love.

* Michael Broyde is a law professor at Emory University, Chaver of the Beth Din of America and the Founding Rabbi of the Young Israel in Atlanta.

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