The Literary Character of the Shulchan Aruch: Does Talking During Prayers Render One Ineligible for Warfare?

The Literary Character of the Shulchan Aruch:

Does Talking During Prayers Render One Ineligible for Warfare?

by Jack Bieler

Literary Flourishes in the Shulchan Aruch

In addition to codifying in succinct fashion a broad range of the laws that comprise the traditional corpus of Jewish law, R. Yosef Karo’s Shulchan Aruch can also be viewed as a literary and spiritual work, complete with nuanced expressions and elegant turns of phrase. The deliberate choice of an intriguing variety of language in R. Karo’s classic work is particularly apparent with respect to the phraseology applied to prohibited actions and behaviors.  Instead of using the same terminology for conveying that certain activities are unacceptable, a range of words and phrases appear.[1] While many of these expressions originate in the Talmud and the Rishonim, the author’s effort to preserve the original Rabbinic language lends a particular flavor to the Shulchan Aruch as a whole, as well as opportunities for investigation and interpretation with respect to specific instances of these diverse formulations.

The Severity of Talking During Prayers

A particularly evocative example of R. Karo’s style regarding prohibited actions appears in Orach Chayim 54:3:

שו”ע אורח חיים סימן נד: ג

המספר בין ישתבח ליוצר עבירה היא בידו וחוזר עליה מעורכי המלחמה

One who converses between “Yishtabach”[3] and “Yotzer”[4] “Aveira Hih BeYado” (it is a sin for which he will be accountable,) “VeChozer Aleha MeiOrchei HaMilchama” (and he returns on account of it (the transgression), from the war [lit. array for battle.])

Mishna Berura #5 sheds light on how such a relatively esoteric transgression [5] is tied to whether or not the individual participates in a certain type of warfare:

משנה ברורה סימן נד ס”ק ה

מעורכי המלחמה – ר”ל דכתיב בקרא מי האיש הירא ורך הלבב ילך וישוב לביתו ואחז”ל הירא מעבירות שבידו וזו ג”כ בכלל עבירה היא והא”ר כתב בשם מטה משה שהקליפות מבטלים לעלות התפלה וע”י פסוקי דזמרה מכריתים אותם וכששח חוזרין עליה בשביל העבירה הזאת אותם הגדודים שהם מעריכים מלחמה בינינו בעו”ה ע”כ ראוי שלא לספר:

That is to say, since it is written (Devarim 20:8) “And the guards continue to speak to the nation,[6] and they said, ‘Who is the fearful person and the soft of heart, he shall go and return to his home and he will not adversely affect the hearts of his brothers to be like his heart.’” And the Rabbis[7] have explained, “(‘The fearful person and the soft of heart’ =) The one who is afraid of the sins for which he is accountable. And this (sin – conversing between “Yishtabach” and “Yotzer”) is also included within the category of “transgression.”

The reference to ‘the Rabbis’ above relates to a passage found in the Talmud on Sota 44a-b, and is a dispute between the Bavli and the Yerushalmi.  Sota 44a lists a three-way disagreement, with R. Akiva pitted against R. Yosi HaGallili and R. Yosi. Whereas the first interpretation (R. Akiva) takes the text (Devarim 20:8) literally in the sense of an individual who simply does not have the inner fortitude to deal with the terror and chaos of warfare, the latter two views (R. Yosi HaGallili, R. Yosi) agree that the text in question ought to be taken spiritually in the sense that the individual is fearful due to a guilty conscience arising from previous sinful behavior.

Which Sins?

The difference between R. Yosi HaGallili and R. Yosi is the severity of the sin involved. R. Yosi lists as examples several sins that are clear violations of Torah law, e.g., a Kohen Gadol marrying a widow¹; a Kohen Hedyot marrying a divorcee²; a Yisrael marrying a  Mamzeret³; a Yisraelite marrying a  Mamzer. Although other cases that R. Yosi cites are only Rabbinic in origin—a Yisrael marrying a Netina or a Yisraelite  marrying a Netin⁴; a Kohen marrying  someone who had been a levirate bride but consequently was rejected by her Yavam and subjected to Chalitza⁵ – one could say that these are all violations of Jewish law involving a marriage partner that has been declared off-limits and are overt, long-term and public.  Yet it does make the language of the above-cited Gemora in Sota 44a difficult, because when the question regarding what the practical difference is between these two views, the Talmud answers, “Aveira D’Rabbanan” (a Rabbinic transgression.)

Interruptions Between Tefilla Shel Yad & Tefilla Shel Rosh

When the Talmud cites a Baraita illustrating a case in which R. Yosi and R. Yosi HaGallili would take different positions, supposedly a more “obvious” example of a Rabbinic prohibition, the example of one conversing between the time he puts on his Tefilla Shel Yad and Tefilla Shel Rosh is presented[8]⁶ The Talmud Yerushalmi purportedly presents the case recorded in the Shulchan Aruch. Yet our text of the Yerushalmi does not contain this passage![9] Conversely, when the Shulchan Aruch discusses the issue of not interrupting verbally while putting on one’s Tefillin, the language of exemption from an optional war is glaringly omitted:

Shulchan Aruch, Orach Chayim 25:9

It is prohibited to interrupt with words between the Tefilla for the hand and the Tefilla for the head; and if one interrupts, one blesses on the Tefilla for the head, “Al Mitzvat Tefillin.”

Mitzvot Protection:  The Connection between Tefillin, War, and Prayer Interruptions

Regardless of the  particular Rabbinic source that associates the interruption between “Yishtabach” and “Yotzer” and returning from an optional war, at least one Rishon posits a specific connection between the Mitzva of Tefillin and fighting wars. ROSh presents the following hypothesis:

ROSh, Hilchot Ketanot, Menachot, Hilchot Tefillin, #15

…because by means of the fulfillment of the Commandment of Tefillin as was legislated (not only the D’Oraita donning of the Tefillin themselves, but also the D’Rabbanan aspects of how they should be put on, including not interrupting between the Tefilla for the hand and the Tefilla for the head), there is fulfilled for men of war (Devarim 33:20) “…and tears the arm with the crown of the head”…[10]

Thus the symbolic parallelism between Tefillin, a Mitzva that involves head and arm and the unique martial style of warriors like the members of the tribe of Gad, would justify an association with warfare in general, and surviving battles and proving victorious in particular (i.e., by virtue of the reward and inspiration for properly and carefully fulfilling the Mitzva of Tefillin, one will have the ability and even Divine Assistance to defeat one’s enemies during wartime).[11] And should there be defects in how a person carries out this commandment, then this could adversely affect his chances for success and survival.

If one were to emphasize such a connection, it then would follow that the association of not interrupting between “Yishtabach” and “Yotzer” with optional wars is either: a) entirely arbitrary, i.e., nothing more than an example of an action that most would consider not very significant and which now, through its association with a life and death context, is attributed religious significance; or b) actually rooted in the context of war itself (much like the connection to Tefillin). I would suggest that a connection involving the laws of reciting the Shema that parallels ROSh’s interpretation regarding Tefillin appears in Sota 42a:

Devarim 20:2,3

And it will be when you approach the war and the Kohen comes near and speaks  to the people.

And he says to them: “Shema Yisrael” you are approaching today the war  against your enemies! Let your hearts not be soft, do not be afraid, do not feel tremble and do not be terrified before them.

Sota 42a

Said R. Yochanan in the name of R. Shimon bar Yochai: The Holy One, Blessed be He Said to Israel, “Even if all you fulfilled was Kriyat Shema in the morning and in the evening, you will not be given over into their hands.”

While the interpretation would appear to be intended to encourage the Jewish people to courageously and confidently face their enemies, particularly those who may not have been punctilious in the majority of the Commandments, perhaps it also constitutes a “double-edged sword”:  if the religious connection that an individual has is tenuous at best (a single Mitzva performance!), unless that performance is perfectly carried out, interrupting between “Yishtabach” and “Yotzer” could be seen as an indication that Shema was not said with conviction and concentration.  If that be the case, the very thing that was intended to serve as a potential protector could be transformed into the opposite—not even this simple commandment could the individual fulfill properly!

“There are no Atheists in Foxholes”

In the spirit of war journalist Ernie Pyle’s famous bon mot, “There are no atheists in foxholes,”  even the relatively irreligious individual, when he finds himself under extreme duress, harks back to any religious practice in his past in order to feel that God will accompany him in these dangerous times. It is then when his attention will not only be drawn to the few actions that  he might have  carried out in general, but also to the perceived deficiencies in those practices, and possibly why “they do not count” towards enlisting God as his Protector. While a person should certainly perform commandments not because they might serve as some sort of magical “shield” from potential dangers and hazards, but rather due to their constituting overt compliance with God’s Will, nevertheless MiToch She-Lo LiShma Ba’in LiShma[12] (even if a Mitzva is initially performed with ulterior motives, there is the potential that eventually it will be done for the “right” reasons.)

At the very least, these ruminations indicate, at least to me, that studying Shulchan Aruch reflectively opens new dimensions in religious thinking.

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[1] Examples of these variations for language of prohibition include:

1. “Eino Ro’eh Siman Beracha” (does not see a sign of blessing)—

Orach Chayim 180:2 (one must avoid reciting Grace after Meals without bread remaining on the table);

Ibid., 151:1 (one should not perform Melacha [Creative Physical Activity] already on Friday afternoon);

Ibid., 585:5 (one should not accept compensation for blowing Shofar on Rosh HaShana, to lead services or serve as a Metargem on Shabbat and/or Yom Tov.)

b’) “Tavo Me’eira L…” (a curse should affect ___)

Yoreh De’ah 240:5 (one should not use money set aside for charity to support one’s parent);

Ibid., 380:2 (neighbors should not allow someone who is observing Shiva to need to work to support himself during that time, no  matter how poor he might be).

c)  “Kelala” (a curse)

Choshen Mishpat 70:1 (one should not lend money to another if there are no witnesses to the transaction);

d) “Ein Onin Acharav Amen” (one should not respond to the one leading the prayers by saying “Amen”)

Orach Chayim 115:2 (one is not to respond to a prayer leader who is an Apikorus, Kuti, minor, or an adult who alters the language of the standard prayers);

e) “Huh Choteh” (he is a sinner)

Orach Chayim 124:7 (one must not converse during the time that the prayer leader is reprising the Silent Devotion);

Ibid., 571:1 (one must not impose upon himself a fast if he is not healthy and steady);

Yoreh De’ah 203:1 (one should not regularly impose upon himself vows);

Even HaEzer 178:21 (a person who does not appropriately supervise the behavior of the members of his family).

f) “Nikra Rasha” (he is called an evil person)

Yoreh De’ah 242:13 (one should not issue Halachic decisions if he is not qualified to do so);

Choshen Mishpat 10:1 (a judge must not reach a hurried judgment before he is sure of the proper answer);

Ibid., 26:1 (Jewish individuals should not bring their disputes to non-Jewish courts)

[2] While hypotheses could be advanced why these specific expressions are used within a particular context, we should not lose sight of the possibility that each case could simply and dryly have been formulated as either permitted or prohibited.

[3] The final blessing of the Pesukei D’Zimra section of Shacharit.

[4] The first blessing in the series of blessings surrounding the recitation of Shema in Shacharit.

[5] One could contend that there is nothing inherently objectionable about such an act since it occurs between two distinct sections of the prayers. The Shulchan Aruch itself continues and states that at least according to some, interruptions at this point for broadly defined Mitzva purposes are permitted. RaMA then offers examples of practices that rely upon this rule. If interrupting at this point was such a serious infraction, justifications short of responding for purposes of either Kavod or Shalom as apply to various points in Birchot Kriyat Shema and the Shema itself should constitute the only acceptable exceptions (see Shulchan Aruch, Orach Chayim 66:1.)

[6] Devarim 20:1-8 describes how four categories of individuals are allowed to bow out from optional (as opposed to mandatory, i.e., defensive) wars, a) (v. 5) someone who has built a house but has yet to dedicate it; b) (v. 6) who has planted a vineyard but has not had the opportunity to eat from it (since there is the need to observe the laws of Orla and Neta Revai); c) (v. 7) who has become engaged but has not consummated the marriage; and d) (v. 8) the case in question.

[7] One could legitimately wonder how  this case is different from the other Rabbinic prohibitions also mentioned by R. Yosi. Perhaps one must posit that despite the fact that some of R. Yosi’s examples are also defined as Issurei D’Rabbanan, they are of the type that a Kohen marrying a Chalutza or a Yisrael marrying a Netina resemble and expand clear Issurei D’Oraita, in the spirit of “Asu Siyag LaTora” (make a fence for the Tora delete comma -Jeremy Bressman 8/23/09 4:44 PM ); in contrast to avoiding an interruption between donning the two Tefillot, which, while reflecting a religious value, is not playing off an actual d’oraita.

The fact that R. Yosi HaGallili lists no examples of prohibitions for which an individual would be allowed to disengage from the battle  allows for the conclusion that regardless of the nature of the sin (Torah law or of Rabbinic origin, public or private, long-term or one-time), if it is sufficient to have disturbed the individual’s equilibrium to the point that he is concerned that Divine punishment could be meted out as part of the high mortality and casualty rate entailed in warfare. Even if he will not be directly or deliberately harmed, but merely not afforded protection from harm, he is excused from the optional war. An additional consideration that might distinguish between sins that qualify for exemption from fighting is a passage in Yerushalmi Sota 8:9 that requires the individual petitioning to be excused to bring proof  that he qualifies. Some actions are more objective and visible than others and therefore will be more easily verified.

[8] In his commentary on Tur, R. Yosef Karo attributes the souce in the Yerushalmi to another Halchic commentator:

And so wrote the HaGahot Maimoniyot, Chapter 7 of the laws of Tefilla, #70, we learn in the Yerushalmi: One who converses between “Yishtabach” and “Yotzer Ohr” is a transgression for which he is accountable, and he returns on account of it from the war…

[9] The apparent absence of this passage is hinted at by Aruch HaShulchan Orach Chayim 54:2:

Although Pesukei D’Zimra and Yotzer Ohr are two separate sections and Kaddish is recited between them, nevertheless it is prohibited to interrupt with conversation between Yishtabach and Yotzer, because they are components of the overall order of prayer, and they are therefore like one continuum. And the Poskim cite from the Yerushalmi (as opposed to the Aruch HaShulchan quoting directly from the Yerushalmi) that one who converses between “Yishtabach” and “Yotzer,” it is a transgression for which he is accountable, and he returns on the basis of this sin from the front lines of the war in order that the sin should not act as a prosecutor against him (and therefore deprive him of Divine Protection during hostilities.)

[10] RaShI: The victims of Gad were recognizable since their heads and their arms were severed with a single stroke. (Chizkuni and Bechor Shor add further detail to this sword-fighting tactic.)

[11] Does the fact that modern warfare has progressively moved away from personal hand-to-hand combat (and even when this occurs, swords are rarely the weapon of choice), alter the symbolic quality of Tefillin vis-à-vis how a soldier might fare in battle, or since hands and heads are mentioned, Tefillin serves as a segulla for a soldier no matter what skill set he employs?

[12] Pesachim 50b

1. VaYikra 21:14 [↩]
2. Ibid., 21:7 [↩]
3. Devarim 23:3 [↩]
4. Yevamot 78b attributes this prohibition to a decree instituted by King David [↩]
5. Yevamot 24a, 85b derive this prohibition from the verse excluding a common Priest marrying a divorcee; however because a woman in this status only resembles a divorcee, it is defined as a Rabbinic violation [↩]
6. although it is also quoted in Sota 44a, the original source for the passage of not interrupting between Tefillot is Menachot 36a. [↩]

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