Friday, 12 July 2019

When Rabbis Make Mistakes


In case anyone was in doubt, rabbis are not only capable of making mistakes – they exercise this capability relatively often. Not necessarily more often than or even as often as the average person, but due to their standing these mistakes tend to have a higher cost for all involved. Needless to say, the more well-respected or influential the rabbi is, the greater the responsibility that he shoulders.

When discussing how we should deal with a situation when a rabbi has erred, it is important to differentiate between two categories. Regarding criminal activity unrelated to the rabbi's status, it is critical that this is dealt with in the same way that any crime committed by a lay person is.[1] Any preferential treatment would be disastrous;[2] there is also no basis for a stricter sentencing based on the person's stature.[3]

The situations I would like to address are the ones where no crime has been committed. For a communal leader it is not sufficient not to be a criminal, or not to transgress commandments of the Torah. What should lead us to conclude that the person is not worthy of the title of 'rabbi', or that he is not capable of doing the job expected of him? And who should be entrusted with making this decision?

Permanent and Temporary Positions

Firstly, it is important to point out that the right to remove a rabbi (or anyone else) from his post depends a lot on the status he was given in the first place. Historically, all positions of authority were seen as something fully 'owned' by those who were appointed. As such, it was extremely difficult to depose a person from his position. Even after the person died, the position was inherited by his children where relevant.[4]

This system is not entirely obsolete today. In the UK, there are still some hereditary peers and life peers whose positions are forever or for life respectively. Under socialist regimes, firing even regular employees can be far from straightforward.

For better or for worse, in the Torah world the old perception of appointments is more prevalent. Many rabbinic positions come with virtually no contractual (or legal) method of forcibly ending the employment.[5] If the terms were not made clear at the time that a rabbi started serving, the default position is that his employment is in accordance with the prevailing local custom for similar jobs.[6]

The truth is that even under this old system, communities often knew how to end the tenure of their rabbi. There may not have been a technical legal way to do it, but if enough of the powers that be were united against the rabbi, they could make his position untenable. This happened to many of those who we now know as being the greatest of our poskim.[7]

In many modern communities today, a rabbi's terms of employment are viewed in a similarly way to those of a regular employee. While at the outset the plan is to keep the rabbi indefinitely, if basic expectations are not met it will not come as a shock if he is asked to leave.

Disputes within a community

Under these circumstances, it is only the rabbi's job to serve his community and not the other way round. While the community certainly are obligated to honour their rabbi for his Torah and for the service he provides them,[8] he is the one who has the basic obligation to provide this service. The same rules apply if the 'community' involved is a class of students,[9] or in the case of those employed by the government, the entire Jewish population.

It therefore follows that the community has the right to decide whether or not the rabbi is meeting the standards required. In order to limit confusion, the community should define their expectations as clearly as possible before commencement of employment. If a dispute does nevertheless arise between the rabbi and the community, the community has the final word.[10] Moreover, a sensible rabbi will realise that to stay in a position where he is not wanted will not be productive.

The problem is that it is rare for the community to speak in a single voice over issues like this. Every rabbi has his detractors, and hopefully most also have their supporters. While more simple disputes within a community may be solved by a simple vote, this is not the case when the rabbi's authority is questioned – it should be easy to see that if 45% of the community think that the rabbi needs to be fired, there is a serious problem.

Ideally, each community should have a clear protocol for situations like these. However, in practice it is rare for this to be the case. If the community are not capable of solving internal disputes independently, they will need to go to a beis din for arbitration.

A secondary role of beis din

In one recent case, there was no significant dispute within the community who remain united in support of their rabbi. Instead, the main person affected by the rabbi's misbehaviour sued (in beis din) for compensation. After complications resulting from a subsequent dispute about the terms of the compensation agreed between the two sides, another beis din was asked (by both sides) to rule on whether the rabbi should carry on in his position.

I do not plan to pass judgement on the compensation, whose details are not all known to me.[11] However, I do think that some clarification needs to be given as to the role of the second beis din. As in this case no accusation of criminal activity was made, the beis din would not have had any authority (halachic or legal) to enforce the deposing of the rabbi against the will of the community. Their role was purely advisory, making a judgement as to the best way to proceed for the good of all involved.[12]

It is important to realise that this role, while being an important one, is not the standard job of a beis din (or of any court). As such, some of the accusations of partiality made against the beis din (and its spiritual leader) were not particularly relevant. They were not judging between the two parties, merely advising (at the behest of both of them) on the correct course of action.[13]

Individual Responsibility

There is another aspect of this case (and other similar ones) which has more far-ranging repercussions. The fact that a rabbi has acted or even ruled inappropriately does not exempt those who follow him blindly from responsibility. Although one who does not know the halacha himself is supposed to ask a rabbi, wherever possible he should ensure that he understands the reasoning behind what he is being told to do. If something sounds strange, it should be questioned and if necessary, researched independently.

This point can be seen most clearly from the words of Rabbeinu Zerachia HaLevi (1130-1186, Spain & Provence). If a dayan makes a mistake in a monetary ruling between two people, under certain circumstances the dayan is obligated to compensate the one who lost out as a result of his error. If however, the mistake was due to the dayan not knowing an explicit halacha (d'var mishna), he is never obligated. The early commentators differ over the rationale for this distinction.

Rabbeinu Zerachia explains that when the mistake is so elementary, the one who loses out is somewhat responsible for his own loss. If he had done a little research, he could have settled the dispute easily. By failing to do so, he waives his right to compensation.[14]

The Ramban disagrees strongly, claiming that it is not reasonable to expect every person to know the considerable amount of material that the dayanim are supposed to know. Thus even if there is an explicit source which proves the dayan wrong, the litigants are not responsible.[15] However, the clear implication is that if it was within the capabilities of the litigant to discover the dayan's error, the Ramban would agree to Rabbeinu Zerachia.

In our generation, rabbis are all too often relied upon in areas that are well beyond their remit. When a rabbi is asked a question about political or medical decisions that he doesn't fully understand, it is his responsibility to refer the question to the experts in the field. Equally though, those who address these questions to rabbis and not to the relevant professionals, bear full responsibility for the results.[16]

[1] Assuming that this system is fair and not in breach of the Torah. In this post I will not be addressing the question of the government's authority to tackle crime, or of which types of punishment are acceptable.
[2] The deterrent created by punishment is necessary for rabbis as well.
[3] Although the Torah does obligate the king to bring a special korban if he sins, this is his private obligation for a personal wrongdoing and not for what we would call a crime (even when the sin contains an aspect of bein adam l'chaveiro, the korban is not connected to this aspect). Furthermore, the Rambam writes that the king brings an elevated korban due to his elevated status (Moreh Nevuchim 3:46), i.e. in his honour and not because he has a higher level of obligation.
[4] See Sifrei, Parshas Shoftim section 162; Kesuvos 103b; Rambam Hilchos Melachim 1:7. There is a dispute among the poskim regarding whether this is true for Torah-related positions (see Shut Chasam Sofer, Orach Chaim simanim 12-3), but even rabbinical posts were certainly the domain of their occupiers during their lifetimes.
[5] In Israel, most official rabbinic appointments can only be terminated
[6] See Shu"t HaRashba, 5:283 and Rema, Yoreh Deah 245:22. Although the Chasam Sofer writes that the fixed term contracts commonly written for rabbis are only meant for the benefit of the rabbi and the congregation have no right to remove him even at the end of the term (Orach Chaim, siman 206), if it is clearly stipulated otherwise or the prevalent custom is clearly different this would clearly not hold true. The Chasam Sofer himself would not have approved of such a stipulation or custom, but he could not have questioned its legal validity.
[7] One example was the Pnei Yehoshua.
[8] The obligation to honour one's own Rav goes further than the obligation to another talmid chacham – see Yoreh Deah 242-4 for details.
[9] At least in this case, even under the old system the conclusion is that as far as monetary matters are concerned, the rav is subservient to his students (Bava Metsia 97a).
[10] This does not absolve the community of any financial obligations towards the rabbi, especially in cases where the rabbi has moved house or given up a previous job for the sake of the community. It goes without saying that any disputes over these issues must be adjudicated by an independent beis din and not by the community.
[11] I do not even have any idea on what basis the claim for compensation was made.
[12] The full 'ruling' (in Hebrew) can be seen here.
[13] Although even in cases like these, one of the factors that those giving the advice must consider is the outward appearance of the process.
[14] HaMaor HaGadol, Rif Sanhedrin 12a.
[15] Milchamos Hashem ibid.
[16] A while ago I was asked by a reader of this blog what I thought about a certain now deceased rabbi who refused to believe that a certain paedophile was guilty of the crimes that he committed, causing many of his followers to believe that he was safe. I replied that while he certainly made a grave error and bears responsibility for this, he cannot be called a wicked person as I am sure that his intentions were pure. The reader then asked why I would not say the same if a doctor acted negligently with his patients, to which I responded that the doctor is supposed to know better. I was then challenged further that the community that this rabbi served in viewed rabbis as experts in all fields. I answered that if this is the case, the entire community brought this tragedy upon themselves and are as responsible as the rabbi is.

Friday, 21 June 2019

Making a Meal of it

For us Jews food has always been important. We all know the famous (if not completely accurate) generic description of all of our festivals ending in "let's eat." Thus the halachic definition of a meal is relevant in a number of areas – Kiddush, eruvin, sukkah, weddings and even mourning to name but a few.

My starting point here will be probably the most basic ramification of this definition – the obligation to say the full Birkas HaMazon after eating. This obligation is a unique one – no other brachos have a Biblical status according to all opinions.[1] The source for this is the following pasuk:

כִּי ה' אֱ-לֹהֶיךָ מְבִיאֲךָ אֶל אֶרֶץ טוֹבָה אֶרֶץ נַחֲלֵי מָיִם עֲיָנֹת וּתְהֹמֹת יֹצְאִים בַּבִּקְעָה וּבָהָר: אֶרֶץ חִטָּה וּשְׂעֹרָה וְגֶפֶן וּתְאֵנָה וְרִמּוֹן אֶרֶץ זֵית שֶׁמֶן וּדְבָשׁ: אֶרֶץ אֲשֶׁר לֹא בְמִסְכֵּנֻת תֹּאכַל בָּהּ לֶחֶם לֹא תֶחְסַר כֹּל בָּהּ אֶרֶץ אֲשֶׁר אֲבָנֶיהָ בַרְזֶל וּמֵהֲרָרֶיהָ תַּחְצֹב נְחֹשֶׁת: וְאָכַלְתָּ וְשָׂבָעְתָּ וּבֵרַכְתָּ אֶת ה' אֱ-לֹהֶיךָ עַל הָאָרֶץ הַטֹּבָה אֲשֶׁר נָתַן לָךְ: (דברים ח, ז-י)

For Hashem your G-d is bringing you to a good land, a land of streams of rivers, springs and deep waters emerging in the valley and in the mountain. A land of wheat, barley, grapes, figs and pomegranates; a land of oil-producing olives and honey. A land where you will not eat bread in misery – you will not be missing anything in it. A land whose stones are iron and from whose mountains you will mine copper. You will eat and be satiated; you shall bless Hashem your G-d for the good land that He has given you. (Devarim 8:7-10)

I suspect the first impression most people will have is that this verse describes any eating up to the point of satiation. It is hard to detect any hint of limitation regarding the type of food that is consumed. As we know, the accepted halacha does include such a limitation – I would like to investigate the source of this, its rationale and some consequences.

What is 'nutrition'?

The truth is that our first impression is not entirely wrong. Which food requires Birkas HaMazon is subject to a dispute in the Mishna. Rabban Gamliel states that one who eats grapes, figs or pomegranates must say the full Birkas HaMazon, whereas the Chachamim disagree. R' Akiva maintains that even one who eats a boiled vegetable as 'his nutrition' (מזונו) must say Birkas HaMazon.[2]

The view of R' Akiva is close to what we might have thought, but with one proviso. Eating alone is not sufficient to obligate a person in Birkas HaMazon – this obligation only applies when one eats 'his nutrition.' Foods eaten as snacks, for pure enjoyment or for social purposes are not considered 'nutrition.' The source for this is presumably the word ושבעת – 'You will be satiated.' However, even according to this view, one who satiates himself in a way unusual even for him would not say the full Birkas HaMazon.

Why do Rabban Gamliel and the Chachamim disagree? The gemara explains that the views of both Rabban Gamliel and Chachamim are based on the previous pesukim. Rabban Gamliel understands that the mitzvah in our pasuk is to be understood in the context of the seven species that Eretz Yisrael is praised for listed previously and is directed only at those who eat these foods. The Chachamim argue that the mitzvah in the last pasuk is only a continuation of the pasuk immediately preceding it, where only the consumption of bread is mentioned.

It is well known that the halacha is in accordance with the Chachamim and that therefore we only say Birkas HaMazon after eating bread. However, it seems unreasonable to say that this limitation is without logic.[3] Bread is the standard staple food on which meals tend to be based.[4] According to the Chachamim, the 'nutrition' that obligates Birkas HaMazon is not subjective to the person – it is limited to the standard 'nutrition.'

What is 'bread'?

The Rambam writes that the fives species of wheat, barley, spelt, oats[5] and rye which are ground into flour, kneaded and baked are called bread.[6] This seems simple enough at first sight, however in reality it is often unclear whether or not this definition has been met.

One question that comes up is when bread is processed or transformed in some way. An example of this is when breadcrumbs are made into croutons or coatings for schnitzels. I would like to discuss a different question regarding the original process of making bread. Much of our bread nowadays is not a pure mixture of flour and water. At what point do different additions to dough change its halachic status?

The gemara discusses the status of bread 'that comes with kisanin.' The conclusion is that the correct bracha on this bread is borei minei mezonos, unless one eats an amount that others would 'make a meal over' (i.e. enough for an average person's meal, even if it is not enough for the person eating it). In addition, if one eats this 'bread' in the middle of a meal after having already made hamotzi on regular bread, he must make a new bracha of borei minei mezonos.[7]

There are several different explanations offered for the meaning of kisanin and the type of bread being referred to. Most of these explanations involve additions of other ingredients to the dough. The apparent common denominator of all the explanations is that the significant difference between this 'bread' and regular bread is that it is not the common practice to base a meal around bread 'that comes with kisanin.'[8]

All this can be easily understood in light of the way we explained what distinguishes bread from other foods. 'Bread' that is not used as a person's basic nutrition is not the bread that the Torah was referring to when talking about 'eating and being satiated.' However, as technically it is made by the same process as regular bread and mostly from the same ingredients, if one eats an amount that most would consider a meal, it can substitute for standard bread.[9]

Is there a doubt?

Due to the numerous possibilities offered for the meaning of bread 'that comes with kisanin,' the Beis Yosef writes that this is a doubt over a Rabbinic question[10] and thus we can be lenient. When eating any of the kinds of 'bread' described by the various rishonim, we should not say hamotzi or Birkas HaMazon unless eating enough for a meal.[11]

While not disagreeing with the conclusion of the Beis Yosef, I find his rationale surprising. Although the rishonim differ over the meaning of the term 'comes with kisanin,' I see no reason to assume that they also dispute the halachic status of the various types of baked products. As the principle behind the law is clear, we should be able to extrapolate that any type of 'bread' not normally used as a basis for a meal has the same halacha, even if it is not the example that the gemara talked about. There is no doubt involved – all these products are equivalent to bread 'that comes with kisanin' according to all views.[12]

There is one major practical difference between my understanding and that of the Beis Yosef. Based on the words of the Beis Yosef, the Mishna Berura writes that as we are not sure of how to define 'comes with kisanin,' in the middle of a meal we should never say a bracha on these foods unless all the characteristics described by the rishonim are present.[13] This is why the common practice is not to say borei minei mezonos on cake and biscuits served as a dessert.

In my humble opinion, this practice is not correct. As no normal people use cake as the staple for a meal, there is no doubt in my mind that it is not equivalent to regular bread. As such, eating it as a dessert requires a bracha according to all the rishonim.

Another questionable practice (even according to the Beis Yosef) is the use of heavily sweetened challos (or those with extraneous ingredients) for Shabbos meals. The challa is supposed to be the food that defines our meals, and if no-one would eat other things with it the purpose is defeated.

This problem is potentially more than just a 'spirit of the law' issue. While it is possible to use bread that 'comes with kisanin' for Shabbos meals, this is only if one eats enough for a meal. And although according to many poskim the required amount can include other food eaten with the 'bread,'[14] this is certainly not the case if the 'bread' is only eaten in isolation and forgotten about when the 'real food' is served.

In our generation we have a lot to thank Hashem for. May He enlighten us all to be able to do so in the correct way.

[1] The Ramban lists Birkas HaTorah as the 15th positive mitzvah that the Rambam 'forgot' to count, arguing that this too is Biblical as the gemara (Berachos 21a) derives it from a pasuk (Devarim 32:3). This position is also accepted by the Chinuch (Mitzvah 430). However, it is clear that the Rambam does not agree with this (see Berachos 1:1-3). These positions follow directly from the fundamental dispute between the Rambam and the Ramban about the nature of typical drashos of Chazal, discussed in Halachic Exegesis.
[2] Brachos 44a. The gemara on 44b explains that cabbage stalks can feasibly be considered a person's 'nutrition.'
[4] This was certainly true in the past and remains true at least to some degree today. It is however somewhat difficult to measure to what degree, as our major meals are influenced by religious factors and thus we probably tend to eat more bread than we would have done otherwise. Either way, whether or not the rules for when we say Birkas HaMazon ought to be changed is a question that only the Sanhedrin will have the authority to decide.
[5] Questions have been raised over whether the שיבולת שועל mentioned by Chazal translates accurately to what we call oats. See for example this article on the topic by Rabbi Michael Broyde.
[6] Hilchos Brachos 3:1.
[7] Brachos 41b-42a.
[8] See Beis Yosef, Orach Chaim 168.
[9] The truth is that even with regular bread, according to many Rishonim there is only a Biblical obligation to say Birkas HaMazon when eating enough for satiation (see Brachos 20b and Rashi there, Rambam Hilchos Brachos 1:1. See also Ra'avad Brachos 5:15; Milchamos Hashem, Rif Brachos 20b). According to these Rishonim, it is likely that the only halachic difference between regular bread and פת הבאה בכיסנין is on a Rabbinic level – see Shulchan Aruch HaRav, Orach Chaim 168:8. However, the obligation to make a new bracha on פת הבאה בכיסנין in the middle of a meal would seem to indicate that there is a fundamental difference, even if the only practical differences come up with Rabbinic halachos.
[10] See previous footnote.
[11] Orach Chaim 168 (and Shulchan Aruch s'if 7 there). The Rema there only disputes the Beis Yosef's understanding of the view of the Rambam and not the principle of how to deal with the doubt.
[12] See Ma'amar Mordechai (quoted by Bi'ur Halacha 168:7) who points out this possibility.
[13] Bi'ur Halacha 168:8, as we are lenient regarding doubts whether to say a bracha or not.
[14] See Magen Avraham 168:13.

Thursday, 30 May 2019

New Chagim

A couple of years ago, in Zionism and Yom Ha'atzmaut, I wrote about the philosophical side of what we have to celebrate regarding the events of recent times. I intentionally left out the halachic aspects of the ways in which we can or should celebrate, as this often clouds the main issue.

Now, enough time has passed and I feel free to write about the unrelated issues of the nature of new festivals, who has the right to institute them and which parts of our tefilos (if any) can be changed in their honour. At least on a theoretical level, these questions are important even for those who may feel that they have nothing to celebrate.

Megilas Ta'anis

In the times of the second Beis HaMikdash (and slightly beforehand), the Chachamim forbade fasting (and in some instances also eulogising) on various days when there was something to celebrate. A list of these days was compiled and named Megilas Ta'anis, as the main institution was the prohibition of fasting.

On most of these days, there was no obligation to do anything positive to celebrate. The Tana'im and Amora'im disputed whether or not the laws of Megilas Ta'anis apply even after the Beis HaMikdash was destroyed, and the final halacha is that it is obsolete with the two exceptions of Chanuka and Purim. As we know, these two festivals do have positive mitzvos, and they were retained because of the fame of the miracles that happened.[1]

The gemara also tells us that according to the accepted view that Megilas Ta'anis no longer applies, certainly we do not add new celebrations. Thus the institution of a festival on the day that the writing of Hashem's name on business documents ceased must have been while the Beis HaMikdash still stood. Similarly, those who declared a festival on the day of the rescinding a decree against Torah learning, bris milah and Shabbos, must have subscribed to the view that Megilas Ta'anis is still in force.[2]

It would appear from here that as long until the Beis Hamikdash is rebuilt, we should not institute new festivals. Even if there is a theoretically legitimate reason to celebrate, it does not justify further distraction from the mourning we are supposed to feel for what we are missing.

However, the Tana R' Yossi says that Megilas Ta'anis became obsolete for a different reason. After the destruction of the Beis HaMikdash, these former celebrations of events connected to it have themselves become a source of mourning.[3] This would seem to imply that celebration of happenings unrelated to the Beis HaMikdash is indeed appropriate. How can we reconcile this contradiction?

The Aroch La'ner[4] explains that as most of the festivals in Megilas Ta'anis were in celebration of events connected to the Beis HaMikdash, it became obsolete when the Beis HaMikdash was destroyed. Although a few of these festivals were not connected, as they were part of Megilas Ta'anis they were also discontinued. The corollary of this is that nowadays there is no problem in adding new festivals – although obviously it would not make any sense to add them to Megilas Ta'anis.[5]

Voluntary Chagim

The Pri Chadash[6] discusses those in his time who instituted festivals celebrating various miracles that happened to them and does invoke the rule that "if the original festivals were ceased, how can we add new ones?!" He therefore concludes that these festivals and celebratory meals cannot be obligatory, even if one observed them for many years.[7] However, it should be noted that even according to the Pri Chadash, we are perfectly entitled to celebrate days like this on a voluntary basis.

Furthermore, it is hard to understand the rationale behind the view of the Pri Chadash. If the leaders of the generation feel that it is appropriate to institute a festival, what limits their authority to do so?[8] I believe that he learned from the gemara that the revoking of Megilas Ta'anis contained an implicit decree that no new chagim could be made until the rebuilding of the Beis HaMikdash.[9] As with other rabbinic decrees, this can only be rescinded by a court of higher wisdom and numbers.[10]

This understanding of the gemara is certainly not obvious. The language used, that Megilas Ta'anis ceased (בטלה), doesn't sound like a beis din issued an active decree to revoke it. It also seems improbable that the Tana'im and Amora'im disputed whether such a historical event occurred. Neither is there any indication that an explicit decree was made to prevent the institution of new festivals.

Therefore I believe that even if we reject the explanation of the Aroch La'ner and find some other resolution to the contradiction in the gemara, the principle of not adding new festivals could only have been a policy and not a strict rule. If the leaders of the generation feel that this policy needs to be changed because of the needs of the times, they have every right to do so.

That being said, obligating people to celebrate a new festival is much less straightforward. As I have pointed out many times before, the only ones who have the power to make binding institutions on the entire Jewish people are the Sanhedrin or its equivalent (all or virtually all the Rabbis of the generation).[11] In the absence of such an authority, although we are all obligated to thank Hashem for the good he has given us, the manner in which we do so remains a matter of personal choice.[12]


Based on the above, any festivals instituted by lesser authorities than the Sanhedrin or its equivalent must not contain any form of observance that requires a formal institution. For example, celebratory meals are clearly appropriate as they do not require any formal institution. By contrast, adding a new 'mitzvah' with its own beracha would not be possible.[13]

The 'grey area' is when we have an existing mitzvah which we want to extend; one example of this being the reciting of Hallel. While adding days on which we say Hallel poses no halachic questions if done for a good reason,[14] we cannot just say extra brachos without establishing the halachic basis for this. Saying a beracha where none is required is a severe transgression.[15]

In Brachos on Mitzvos, I already explained at length that this situation exists regarding Hallel on Rosh Chodesh, a custom started by the people as an extension of the Rabbinic institution of saying Hallel on Yom Tov. The rishonim dispute whether or not the beracha is also extended to Rosh Chodesh.

For those who say it, should the status of Hallel on Yom Ha'atzmaut and Yom Yerushalayim be different to that of Hallel on Rosh Chodesh? One possible reason to distinguish is due to the fact that in contrast to Rosh Chodesh, the custom of saying Hallel on Yom Ha'atzmaut and Yom Yerushalayim has not spread to the entire Orthodox Jewish world. One could argue that only such a widespread custom could justify a beracha being recited, as only such customs may become compulsory.[16]

However, taking a closer look at the history of Hallel on Rosh Chodesh reveals that in the times of the gemara, this custom was not universal. The gemara relates that Rav, who lived in Eretz Yisrael, was not aware of the custom until he visited Bavel.[17] Rabeinu Tam, one of the main proponents of saying a beracha on Hallel on Rosh Chodesh, assumes that even then a beracha was recited.[18]

To summarise, those who don't say a beracha on Hallel on Rosh Chodesh should certainly also not do so on Yom Ha'atzmaut and Yom Yerushalayim. Those who do say a beracha on Hallel on Rosh Chodesh certainly have some justification for doing the same on Yom Ha'atzmaut and Yom Yerushalayim.

My personal practice is to say a beracha on Hallel on Rosh Chodesh, although as I hinted in the above post, I am not 100% convinced that this is correct. Due to this uncertainty, added to the possible distinction between Rosh Chodesh and the newer festivals, I do not say a beracha on Hallel on these days. However, here too I am far from convinced of the correctness of this position and I am open to reconsidering in the future.

Yom Yerushalayim Same'ach!

[1] Rosh HaShana 18b-19b.
[2] Ibid. This festival was a later addition to Megilas Ta'anis, after the destruction of the Beis HaMikdash.
[3] Ibid. 19b.
[4] R' Yaakov Etlinger, Germany 1798-1871.
[5] I have found only one other commentator who deals with this contradiction in the gemara – the Chasam Sofer writes that in fact the conclusion of the gemara rejects the earlier premise that we don't institute any new festivals after the destruction of the Beis HaMikdash. He argues that on the contrary, there is a Biblical obligation to celebrate and praise Hashem on a day that we were saved from danger (Shu"t Chasam Sofer 1:191). I find this explanation more difficult, but either way the halachic conclusion is the same.
[6] R' Chizkiyah di Silo, 1656 (Livorno) – 1695 (Yerushalayim).
[7] The Chasam Sofer quoted above rejects this ruling at length.
[8] Obviously, if those who attempt to impose a festival are not the legitimate authorities, there decision carries no weight. Such people have no right to institute anything. The Pri Chadash clearly means that even those who do have the authority to make other institutions cannot declare a new chag.
[9] Although see B'ikvei HaTzon siman 32, where R' Hershel Shachter explains that adding any festivals not related to the building of the Beis HaMikdash is a violation of the prohibition of Ba'al Tosif (adding new mitzvos. Despite this, he justifies the celebration of Yom Ha'atzmaut as it appears to be the start of the process leading to the rebuilding of the Beis HaMikdash). Without getting into a lengthy discussion of the parameters of this prohibition, I find this argument hard to defend. Adding a new festival should be no worse than the addition of the fourth beracha in Birkat HaMazon.
[10] Mishna, Eduyos 1:5.
[12] Nevertheless, based on the principle of ברוב עם הדרת מלך, finding a way that as many people can identify with as possible is far superior to each person doing his own thing.
[13] We can only make a beracha on a compulsory mitzvah, due to the appearance of the word וצונו (= He commanded us).
[14] Chazal compare saying Hallel to blasphemy (Shabbos 118b), as the mitzvah is belittled and made into a mere song (Rashi). Some have claimed that any reciting of Hallel when halacha does not require it falls under this category of blasphemy (see Nefesh HaRav, page 97), although this position is hard to justify when there is a specific reason for saying Hallel on that day (see Yabia Omer 6, Orach Chaim siman 41).
[15] See Rambam, Hilchos Brachos 1:15.
[16] As explained in Brachos on Mitzvos, some take the position that even these minhagim are never really compulsory unless endorsed by the Sanhedrin, although these rishonim also maintain that a beracha is not said on Hallel on Rosh Chodesh.
[17] Ta'anis 28b.
[18] Sefer HaYashar, Chidushim siman 537. Also quoted by Tosfos in Sukkah 44b and by many other Rishonim.