NYP no. 5760.3

CCAR RESPONSA COMMITTEE
5760.3
A Defective “Holocaust” Torah Scroll


She’elah.

Our congregation possesses one of the Czech Torah scrolls that were taken by the Nazis and then rescued and cared for by London’s Westminster Synagogue Memorial Trust. There are over one thousand scrolls now on “permanent loan” to synagogues around the world. Ours comes from the town of Kolin, near Prague. Some synagogues have scrolls which are fragmentary or incomplete. Our scroll is a complete sefer torah, but sections of script have flaked away. A sofer stam (i.e., a scribe qualified to write Torah scrolls, t’filin, and m’zuzot) has told us that the parchment will not hold new ink. The scroll, since it cannot be repaired, is technically pasul, disqualified for public reading.

Our congregation has decided to use the scroll for Shabbat Torah readings, in places where the script is perfect or at least very clear. In addition, we have allowed many Benei Mitzvah to read their parashah from the scroll. This enables our youngsters to make a tactile connection between themselves and the vanished community of Kolin. We have taken synagogue and youth trips to Kolin and have prayed at its synagogue, which still stands. The scroll and its history have therefore become a significant part of our congregation’s life.

A question has been raised: is it proper for us to read from this scroll, inasmuch as it has been declared pasul? How shall we answer this question, in light of both our tradition and the value we have found as a congregation in the public reading of the scroll? (Rabbi Mark S. Shapiro, Glenview, Illinois)

 

Teshuvah.

This she’elah poses a conflict between two profoundly important Jewish religious values. On the one hand, the honor due to the sefer torah is a matter of great consequence in our tradition,[1] which as we shall see demands that the formal public reading of the Torah (k’ri’at hatorah) be performed from a sefer torah kasher, a scroll that meets the strict requirements of ritual fitness. On the other hand, the events of the Shoah have left a profound imprint upon the Jewish mind and heart, and the remembrance of that tragedy has taken on for us the character of a religious duty.[2] Many congregations have acquired Torah scrolls that were rescued from the Nazis, and by reading from these scrolls they demonstrate in a concrete and moving way the continuity of the Jewish people and faith. How do we accommodate these two religious values, both of which make powerful claims upon our attention?

The Reading of the Torah from a Ritually Unfit Scroll. In his great code of Jewish law, Maimonides (Rambam) offers a list of twenty defects that render the scroll pasul.[3] The fifteenth item reads: “if the form of one letter should be diminished to the point that it cannot be read at all or so that it resembles another letter, whether this occurred at the original writing or through a perforation, a tear, or fading (of the text).” The Czech Torah scroll described in our she’elah is clearly pasul according to this definition. The proper response would be to repair the scroll and to restore it to kashrut, a ritually acceptable condition.[4] Since this is not possible in our case, tradition prescribes that the scroll be buried or stored away in a genizah.[5] In any event, it may not be used to fulfill the required ritual reading (k’ri’at hatorah). As Maimonides writes, “Should any one of these defects be present, the scroll is reduced to the status of a chumash[6] that is used for the teaching of children; it is not to be read before the congregation.”[7] The reason for this prohibition, according to the Talmud, is that to perform the reading from a chumash–that is, from a scroll that is anything less than a complete sefer torah–is an affront to the dignity of the congregation.[8]

The issue, however, is not as cut-and-dried as it seems. The very same Maimonides is the author of a responsum that rules to the opposite effect.[9] His correspondents ask whether a community that does not possess a sefer torah may perform the public reading from chumashim “and recite the blessings before and after the reading, or should they abstain from reading the Torah altogether?” Similarly, may the blessings be recited over a sefer torah that is ritually defective? Rambam answers without hesitation: mutar l’varekh, it is permitted to recite the blessings over the reading from a sefer torah pasul. This is because we recite the blessings over the reading itself and not over the scroll; thus, “one may recite the blessings whether the reading is performed from a scroll that is kasher, from a scroll that is pasul, or even if one recites without reading from a text at all.”[10] Rambam offers two proofs for this theory. He first refers us to the beginning of the morning service (shacharit), where one recites the blessing asher bachar banu mikol ha`amim— the same blessing recited prior to the reading of the Torah–before reciting passages of Scripture and rabbinic literature.[11] The worshiper says this b’rakhah even though he does not recite the passages from a sefer torah. “Thus, the actual mitzvah is the pronunciation (hagayah) of the words of Torah, and the blessing pertains to that pronunciation.” Second, Rambam cites the talmudic passage, mentioned above, that forbids congregational reading from chumashim.[12] A chumash, he notes, is the supreme example of a defective Torah scroll;[13] still, it is not prohibited because it is defective but rather because to read from it is an affront to “the dignity of the congregation.” This suggests that a defective scroll is not disqualified per se for the congregational reading, but simply that it would be unseemly to use such a scroll for that purpose. The reading itself is therefore not invalid and to recite a blessing over such a scroll is not an instance of b’rakhah levatalah (a misplaced or unnecessary benediction).

This permissive ruling remains very much a minority view. Other leading authorities reject Rambam’s arguments outright.[14] First, they write, Rambam’s permit cuts against the grain of accepted talmudic and halakhic thought, which holds that a defective sefer torah is not to be used for public reading even if no other Torah scroll is available.[15] Second, the benedictions are in fact recited over the scroll and not (as Rambam suggests) over the reading itself. Otherwise, we would be able to fulfill the requirement of k’ri’at hatorah by reciting the Torah portion orally; yet the ancient rabbinic ordinance that established the practice[16] requires that the portion be read from a scroll and not from memory.[17] Third, while the Talmud’s language might support Rambam=s leniency with respect to a chumash–that is, one of the Torah’s five books written correctly on a separate scroll–the disqualification of a Torah scroll whose writing is defective or worn away appears to be absolute.[18]  Indeed, it is arguable that a scroll lacking even one letter is not considered a sefer torah at all,[19] so that the reading from it does not “count” toward the fulfillment of the mitzvah of k’ri’at hatorah. [20]

These are serious objections. Rambam’s ruling seems to contradict everything the tradition has to say on the use of ritually-unfit Torah scrolls. It most certainly contradicts the position of his own Mishneh Torah on the subject. It is therefore not surprising that some subsequent authorities sought to account for this problematic responsum by questioning its validity or authenticity.[21] Still, we think it possible to explain this teshuvah without excising it from the literature of Jewish law. Near the conclusion of the responsum, Rambam declares: “It is proper for every community to possess a Torah scroll that is kasher in all respects, and it is preferable (l’khatchilah)[22] to read from that scroll. If this is not possible, however, let them read in public even from a pasul scroll and recite the blessings, on the basis of the reasoning I have supplied.” In other words, Rambam holds that the preferable, optimal standard of observance demands a kasher scroll, and the ruling in the Mishneh Torah reflects that view.[23] The responsum, meanwhile, conveys Rambam=s understanding of the minimally-acceptable standard of observance: when the optimal standard cannot be met, the reading from a sefer torah pasul suffices to fulfill the mitzvah of k’ri’at hatorah.[24] A community that does not possess a sefer torah kasher may perform the reading from a pasul scroll, presumably so that (in the words of a later authority) “the practice of reading the Torah not be forgotten” there.[25]

The Issue From a Reform Jewish Perspective. We could make a good case to support this congregation’s desire to conduct its Shabbat Torah readings from the Czech scroll. We have seen that Jewish law does not clearly forbid the reading from a pasul scroll; the responsum of Maimonides may be a minority opinion, but it is not necessarily “wrong” on that account.[26] We Reform Jews, at any rate, certainly see nothing wrong with adopting a minority opinion as the basis of our own practice, particularly when that opinion expresses an uplifting and “liberally affirmative” interpretation of Jewish tradition.[27] In the present case, we might say that there is no reason to forbid the use of this scroll. To read from it most certainly does not offend the dignity of the congregation. On the contrary: reading from this sefer torah, which symbolizes the horrific events of the Shoah and our people’s determination to survive all attempts to destroy us, is a deeply meaningful religious experience. Thus, just as Rambam and others were concerned that the practice of Torah reading would not be “forgotten” in small communities, we are motivated to use this pasul scroll by our determination that the Shoah never be forgotten.

Yet this “good” case is insufficient, for it fails to consider the central role that the reading of the Torah plays in our practice. K’ri’at hatorah is more than simply one religious observance out of many. It is the re-enactment of the drama of Sinai, a re-affirmation of the covenant that binds God and Israel. We observe this mitzvah, as do all other Jews, by reading from a Torah scroll. By this we mean that we use a scroll, not a printed book,[28] a scroll, moreover, that is written and constructed according to the requirements set forth in Jewish law for a proper sefer torah. These requirements, it must be stressed, are not mere technicalities, nor are they standards of “Orthodox” practice that we Reform Jews are free to ignore. Rather, they are standards of Jewish practice, the rules that define what a sefer torah is, rules universally observed in all Jewish communities, including our Reform congregations. If Rambam permits the reading from a scroll that does not meet these requirements, he does so as a temporary measure; he is speaking, after all, to a community that has no kasher scroll available. To exalt this stopgap device to the status of a permanent and weekly observance is to say that it makes no difference to us that a Torah scroll is defective rather than kasher. It is to suggest that we are satisfied with an ersatz standard of Jewish practice, that appearances count more than reality, that we are perfectly content to read from a scroll that looks like–but is not–a real sefer torah.[29] This is not the sort of statement that any Jewish community, Reform or otherwise, ought to make;[30] we should consider it an affront to the dignity of our congregation. Let us keep in mind, too, that the Czech synagogue from which this sefer torah originates would never had read it publicly in its ritually unfit state. Like observant Jews everywhere, they would have done the proper thing: either to repair the scroll or to consign it lovingly to a genizah. It is not a little ironic that we should seek to perpetuate the memory of that community by means of an act that they themselves would have rejected as an affront to the dignity of their congregation.

It might be argued, of course, that our duty to remember the Shoah outweighs the need to adhere to the rules and regulations concerning the sefer torah. Yet the reading from this scroll is by no means the only way for us to remember the Shoah in our ritual observance. References to the victims and the events of the Nazi persecutions figure prominently in our liturgy, our liturgical calendar, and in our synagogue architecture and furnishings. We have frequent opportunity, in other words, to remember the Shoah, even if we do not read from this scroll. More than that: we must take great care how we remember the Shoah. In particular, we must not allow that memory to supersede our devotion to the laws, customs, and practices that comprise our Judaism. That the Nazis murdered millions of our brothers and sisters is a fact that has seared its way deeply into our collective consciousness, but it is no reason–indeed, it is precisely the wrong reason–to alter the contours and content of our religious practice. To change, detract from or abandon essential religious observances because of the Shoah, to read from a pasul Torah scroll–something we would otherwise not do–because the Nazis murdered the Jews who once possessed it, is to proclaim that the crimes of Hitler take precedence over the “voice of Sinai,” the proper conduct of Jewish religious life. This, too, is a statement we should not make. It is surely the wrong message to send to our young people on the day when, called to the Torah for the first time, they symbolically accept the responsibilities and commitments of Jewish adults.

We should insist, instead, that our regular weekly, Shabbat, and holiday Torah portions be read from a sefer torah kasher. This is the standard bequeathed to us from Jewish tradition. This was the standard observed by the Czech community from which the scroll in question originated. And it remains the standard which informs Reform Jewish life, the standard to which we educate our children and to which we ought to aspire.

The above does not mean that the congregation should never read from its Czech sefer torah. The point is that we should not allow the Shoah to cause us to detract from or alter the nature of our most important observances; the regular, statutory reading of the Torah, therefore, should not be accomplished from a scroll that is ritually unfit for that purpose merely because that scroll survived the Nazis. On the other hand, it is entirely permissible to add to the body of our observance in response to the Shoah. The institution of Yom Hashoah, a special day of memorial for the victims and the survivors of the death camps, is an obvious example of such a creative endeavor. We therefore may read from the pasul scroll after we have read the regular Torah portion for that day from a kasher scroll. This should be done in such a way as to distinguish it from the reading of the first scroll. The rabbi should announce that this is an additional reading, and the appropriate benedictions should not be recited over the pasul scroll. In this manner, the traditional objections to the reading from a pasul scroll are removed.[31] The congregation can observe the laws and customs that define the mitzvah of the reading of the Torah while at the same time honoring the memory of those who perished in the Shoah.

An overriding concern for all the members of this Committee is that the reading from the pasul scroll should be seen as an exceptional occurrence. The too-frequent use of this scroll would likely upset the careful balance we seek to draw between commemorating the Holocaust and focusing our people’s attention upon the enduring content of Jewish life. Most of us urge that the pasul “Holocaust” scroll be read  only on special occasions that have an obvious connection to the Shoah; the Shabbat closest to Yom Hashoah, Kristallnacht, and the “yahrzeit” (i.e., the date of the destruction) of the community from which the scroll originates are possible examples.[32] On those occasions, some of us feel that the pasul scroll may be used for the regular reading, with no distinctions; thus, the berakhot may be recited over it.[33] Others among us hold that even on these special occasions the pasul scroll should be used only for an “additional” reading (that is, not the statutory portion for the day) and that no berakhot should be recited over it.[34] All of us agree, however, that the pasul scroll should not be read every week.

Conclusion.  A congregation may read from a sefer torah pasul in remembrance of the Shoah. This should be done, however, only on appropriate special occasions, and then in such a way as to emphasize that the reading of the Torah ought to be accomplished from a scroll that is, in all respects, a proper sefer torah.

 

NOTES

  1. The rules concerning the honor due to the sefer torah are summarized in SA YD
  2. The chief expression of this duty is the observance of Yom Hashoah. “It is a mitzvah to remember the six million Jews who were murdered in the Sho-ah by attending special memorial services”; Gates of the Seasons, 102-103. See CCAR Yearbook 87 (1987), 87.
  3. Yad, Sefer Torah 10:1.
  4. K’tubot 19b; Yad, Sefer Torah 7:12; SA YD 279:1.
  5. M’gilah 26a; Yad, Sefer Torah 10:1; SA YD 282:10.
  6. “Chumash” here refers to one of the five books of the Pentateuch, written as a separate scroll; Gitin 60a, and Rashi s.v. bachumashin; Yad, Sefer Torah 7:14 and Kesef Mishneh ad loc.
  7. Yad, Sefer Torah 10:1.
  8. Gitin 60a: ein kor’in bachumashin beveit hakeneset mishum kevod tzibur.
  9. The responsum is found in the traditional collections of Rambam’s teshuvot (Pe’er Hador, 9, and Kovetz Tesuvot Harambam, no. 15) as well as in both of the two twentieth-century critical editions: Teshuvot Harambam, ed. A Freimann (Jerusalem: Mekitzei Nirdamim, 1934), no. 43; and Teshuvot Harambam, ed. Y. Blau, vol. 2 (Jerusalem: Mekitzei Nirdamim, 1960), no. 294.
  10. The blessings surrounding the Torah reading, Rambam writes, differ from those we recite over such mitzvot as sukah and lulav. In those instances, should the object itself be pasul we would not recite the appropriate b’rakhah, because “the mitzvah is the taking of a lulav or the dwelling in a sukah, and the blessing is recited over those objects. Should they be ritually unfit [that is, should they not meet the requirements for a valid lulav or sukah], one does not perform the mitzvah (when using them).” The blessing would therefore be an improper one, a b’rakhah l’vatalah. By contrast, the blessings surrounding the Torah reading are said over the reading and not over the Torah scroll itself.
  11. See SA OC 47:5, which lists the three berakhot recited during the beginning of the morning service (birkhot hashachar) over the study of Torah. Our own prayer book omits the third of these blessings, asher bachar banu; see Gates of Prayer, p. 52.
  12. Gitin 60a.
  13. Rambam’s reason for saying this is not altogether clear. Presumably, he means that a chumash, unlike other “defective” scrolls, does not even resemble a proper sefer torah.
  14. This is especially true of R. Shelomo b. Adret (Rashba; Barcelona, d. 1310), whose ruling is not found in the extant collection of his responsa but is cited at length in two early-14th century works–Orchot Chayim, Sefer Torah, no. 5 and Kol Bo, p. 13b-c–and referenced by the fifteenth-century R. Yosef Kolon (Resp. Maharik, no. 69) and R. Shelomo b. Shimeon Duran (Resp. Rashbash, no. 11) and the sixteenth-century R. Yosef Karo (Beit Yosef, OC 143).
  15. This, says Rashba (see note 14), is derived by the Talmud=s language concerning the defective scroll: ein korin bo, “it is not to be read (before the congregation)”; this, he argues, implies an absolute disqualification and not, as Rambam thinks, a provisional disqualification to be waived when no other scroll is available. See also Rashba 1:487. Moreover, the same language–ein korin bo or al yikra bo–is used in tractate Sof’rim with respect to a sefer pasul, and the disqualification there appears to be absolute. See, e.g., Sof’rim 3:7 and 9.
  16. Rabbinic tradition holds that the formal, public Torah reading was established by Moses and Ezra through a series of takanot, or legislative enactments. See Bava Kama 82a and Yad, T’filah 11:1.
  17. This argument is less than airtight. Maimonides could respond that, if the reading is supposed to be carried out from a scroll mishum k’vod tzibur, “due to the dignity of the congregation,” this does not imply that a reading done without the scroll is not valid b’di`avad, or “after the fact.” Yet Rashba makes the point that if the Rabbis ordain that blessings be recited over the performance of a mitzvah, they should be said only when that mitzvah is carried out in its intended form; thus, the berakhot should not be said over anything but a proper (kasher) Torah scroll.
  18. See Gitin 60a: while chumashim are not read in the synagogue because of “the dignity of the congregation” (implying that the congregation may waive its “dignity” and allow the reading to take place), a defective scroll is simply “not read” (ein korin bo), presumably even if the reading would not offend the congregation’s dignity.
  19. See Bava Batra 15a, on Deut. 31:26, and R. Yosef Karo, Kesef Mishneh to Yad, T’filin 1:2.
  20. Thus, according to “most” opinions (da`at rov haposkim; Mishnah Berurah 143, no. 13), when an error is discovered in a sefer torah during the congregational reading, the reading must be repeated from a kasher scroll from the beginning of that day’s appointed section. See R. Asher b. Yechiel, Resp. Harosh 3:8; and Migdal Oz to Yad, T’filin 1:2, in the name of R. Meir Abulafia, R. Avraham b. David of Posquierres, Ramban, and Rashba. This rule is not universally accepted; see below, note 26.
  21. Thus Rashba (cited at note 14) proposes that the responsum represents the opinion of Maimonides “in his youth,” while the Mishneh Torah expresses his more considered and mature viewpoint. Rashbash (cited at note 13) raises the possibility that Rambam is not the actual author of the responsum. He writes that, inasmuch as we cannot be certain that the teshuvah was in face written by Rambam (“is his signature upon it?”), it is wiser to follow the opinion of the Mishneh Torah, of which his authorship is not doubted.
  22. The word l’khatchilah, a technical term of Jewish law, signifies the optimal standard of observance, the practice that ought to be followed if one has a choice. Yet if an individual or community cannot adhere to that standard, they can still fulfill the requirements of the mitzvah provided that they have met the minimally-acceptable standard of observance (b’di`avad).
  23. That is, although a congregation’s “honor” dictates that it should not read from a ritually unfit Torah scroll, the reading therefrom is not invalid; otherwise, it would be unacceptable even b’di`avad, as a “minimally-acceptable” standard. The wording of Yad, Sefer Torah 10:1 suggests that Rambam, unlike Rashba, draws no distinction between the chumash and the defective scroll on this point; see at note 18.
  24. This line of thought is indicated by none other than Rashba in a responsum (1:805). The Talmud (BT Gitin 60a) declares that we do not read from chumashim on the grounds that to do so affronts the dignity of the congregation. This implies that, as a matter of technical law, it is permitted to perform the public reading from a chumash (min hadin mutar), though by all means a proper sefer torah ought to be used. See also R. Yoel Sirkes (17th-century Poland), HaBaCh Hachadashot, no. 42.
  25. See Magen Avraham to SA OC 143, no. 2, and see note 31, below.
  26. In addition, Rambam’s “rejected” teshuvah retains a great deal of influence over Jewish ritual practice. See SA OC 143:4 and YD 279:2: if an error is found in the text of a Sefer Torah during the reading, another scroll is brought from the ark and the reading continues from the place in the text where the error was found. In other words, that part of the reading already performed from the pasul scroll “counts” toward the fulfillment of the mitzvah. This ruling is, on the surface, a curious one: if a Torah scroll is ritually unfit, it stands to reason that none of its text can be utilized for the performance of the mitzvah. That, indeed, is the opinion of “most” authorities (see note 19). R. Yosef Karo, who notes that this custom originated with his colleague R. Ya`akov Berav of Safed, justifies it on the basis of Rambam’s teshuvah: “even though we do not follow Rambam’s ruling, we rely upon it after the fact in order to accept the reading” that was already performed from the Sefer Torah pasul; BY YD
  27. On the tendency of Reform responsa to seek the “liberally affirmative” answer, see R. Solomon B. Freehof, Reform Responsa (Cincinnati: Hebrew Union College Press, 1960), 23. For a more recent, systematic account of the principles of liberal halakhah, see R. Moshe Zemer, Evolving Halakhah (Woodstock, VT: Jewish Lights Publishing, 1999).
  28. This is not to say that we are forbidden to read the Torah portion from a printed chumash during our services. Sometimes, there is no alternative to doing so; see note 31, below. But the act of reading from a printed chumash, however valuable in and of itself, does not meet the definition of the act of k’ri’at hatorah. That mitzvah, a ritual observance that meets its own particular requirements, is accomplished only through the reading from a sefer torah.
  29. See at note 19, above.
  30. On the use of “substitutes” for ritual observance, see our responsum “Non-Traditional Sukkah,” Teshuvot for the Nineties, 5755.4, 91-96.
  31. It is not forbidden to read in public from a non-kasher Torah scroll; the point is that such a reading does not fulfill the mitzvah of k’ri’at hatorah. The blessings, which pertain to that mitzvah, are therefore inappropriate. It follows that to read from the scroll without pronouncing the blessings is permitted, so long as we do not think we are fulfilling the mitzvah See Isserles, OC 143:2 and Magen Avraham ad loc.: a community that does not possess a sefer torah kasher may read from a printed chumash provided that the blessings are not recited. And see P’ri M’gadim to OC 143, Eshel Avraham no. 2: “in a community too small to gather a minyan, perhaps it is proper to read from the sefer torah without the accompanying b’rakhot, so that the practice of k’ri’at hatorah not be forgotten.”
  32. There are others. Our colleague Rabbi David Lilienthal, of the Liberal Jewish congregation in Amsterdam, reports that his community reads from its own pasul “Shoah” Torah scroll on two occasions during the year: Shabbat Zakhor (Deut. 25:17-19, “Remember what Amalek did to you…”) and Shabbat Shuvah (Deut. 32, parashat Ha’azinu).
  33. Here following the theory of Rambam’s responsum: the reading from a sefer torah pasul does fulfill the mitzvah of k’ri’at hatorah, and the reading from it on these special occasions is not to be considered an affront to the congregation=s “honor.”
  34. On the grounds that even on these special occasions the congregation should respond to the Shoah by observing this mitzvah in the form that we generally think proper. The pasul scroll though used for the “additional” reading, will still leave a moving impression upon the congregation.

If needed, please consult Abbreviations used in CCAR Responsa.

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