Parashas Zachor and Megilas Esther - a Halachic Perspective

Introduction

The readings of Parashas Zachor and the Megila this year pose some unique problems. We will sadly not be able to fill our shuls with people as we would normally, and the command of Esther "Gather all the Jews"[1] will not be relived in a literal sense. Some people will likely be unable even to fulfil the basic obligations safely, and few will have the kind of Purim we are used to.

It is critical to clarify as much as possible what the priorities should be – what is mandatory if possible without endangering life, what is usually meritorious but perhaps not so under the circumstances, and what is on a lower level still.

Remembering Amalek

The one Torah command associated with this period is the mitzvah to remember what Amalek did to us:

זָכוֹר אֵת אֲשֶׁר עָשָׂה לְךָ עֲמָלֵק בַּדֶּרֶךְ בְּצֵאתְכֶם מִמִּצְרָיִם: ... לֹא תִּשְׁכָּח:

דברים כה: יז, יט

Remember what Amalek did to you, on the journey when you left Egypt. … Do not forget.

Devarim 25:17, 19

Chazal explain that whereas 'not forgetting' can be fulfilled in the mind, the additional positive command to remember obligates us to express verbally what Amalek did to us.[2] At first glance, there is no hint of this mitzvah being linked to anything public. Although Chazal did institute the reading of Parashas Zachor the week before Purim, there is no indication of this reading having a higher status than that of the other three special sections read for Maftir at this time of year.[3]

However, Tosfos write in a number of places that the reading of Parashas Zachor is a Biblical mitzvah.[4] The Terumas HaDeshen (R' Yisrael Isserlen, Germany/Austria, 1390-1460) infers from the words of the Rosh[5] that this obligation must be fulfilled in the presence of ten men on a Biblical level.[6]

The Scriptural source for this is at best unclear.[7] It should be no surprise that many rishonim do not share the view of Tosfos and the Rosh. Ramban concludes that the mitzvah is merely to transmit the events of Amalek to our descendants informally.[8] Rambam[9] and the Chinuch[10] also omit any individual obligation to read the passage from the Torah.[11]

Furthermore, according to all views this mitzvah can be fulfilled at other times. In the current circumstances, my position is that those who are unable to attend virtually 100% "Covid-friendly" minyanim, (i.e. outdoors, with not too many people and social distancing), should not make an exception because of Parashas Zachor, even for the five minutes that it takes. The risk may be minimal, but it is better to be stringent regarding public safety rather than with the mitzvah of remembering Amalek.[12]

Megilas Esther

On Purim, each individual certainly does have an obligation to read the Megila (or hear it being read). Doing so safely this year will be a challenge, but if enough readers in possession of a kosher megila are willing to put in the time, it should be possible for most of us. Unlike Torah reading, it is generally assumed that one can fulfil the basic obligation without a minyan.

However, the view of R' Asi in the gemara is that a minyan is required for the reading of the megila as well. Furthermore, the gemara tells us that when it came to action, even Rav, who argued with R' Asi, was particular to gather a minyan for the megila reading out of concern for the stringent view.[13] While the consensus of the majority of rishonim is that the halacha does not require a minyan, this is not unanimous.[14] Under normal circumstances, it is certainly better to read the Megila with a large gathering in shul.[15]

"Not at its Time"

For those of fortunate enough to live in Yerushalayim,[16] this year reading without a minyan is even more questionable. The gemara says further that if the reading is not "at its time," all agree that a minyan is required. An example given by the gemara is when the 14^th of Adar falls on a Shabbos (now impossible due to the fixed calendar), when the Megila is read on Friday, the 13^th of Adar.[17] Rashi gives a further example of small villages who had difficulty arranging reading of the Megila, who were allowed to bring the reading forward to market day on Monday or Thursday.[18]

It would seem logical that the same should apply this year in Yerushalayim, where Purim is on the 15^th of Adar, which falls on a Shabbos. The Megila is read on Friday like everywhere else, but surely this is also not "at its time"! The Ran indeed confirms that this is the case.

The Rambam disagrees, writing that the requirement of a minyan applies to those who read earlier than the 14^th.[19] Some commentaries explain that this is based on the Yerushalmi, which limits the requirement of a minyan to those places that read on market day.[20] A possible rationale would be that the requirement of a minyan is in order to publicise the miracle of Purim; in big cities where several minyanim are taking place, it is ok if some read individually.[21]

The difficulty is that were this to be true, a minyan should also not be necessary when the Megila is read on Friday, the 13^th of Adar. This may indeed be the position of the Yerushalmi, but it is clearly in conflict with the Bavli and with the Rambam himself.

Based on the above, the Pri Chadash (Livorno, 1656 – 1695, Yerushalayim) ruled that one unable to gather a minyan for the reading of the Megila in Yerushalayim in a year like this year, should read without a beracha.[22] This is also the position of the Mishna Berura.[23] Although some contemporary poskim do allow a beracha to be said without a minyan,[24] their reasoning is beyond me.[25]

Conclusion

While following all the regulations, we should make every effort to arrange readings of the Megila with a minyan, especially in Yerushalayim this year. This comes a long way ahead of arranging minyanim for Parashas Zachor.

Wishing everyone a safe and happy Purim, and all of Klal Yisrael and the rest of the world a "month turned from sorrow to joy, and from mourning to Yom Tov."[26]

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[1] Esther 4:16

[2] Megila 18a

[3] See Megila 29a-30b. Parashas Zachor is read before Purim in order to have 'memory before action,' but there is no further elaboration.

[4] For example Berachos 13a. Earlier texts of Tosfos stated that Parashas Para is also a Biblical mitzvah, and the Shulchan Aruch (Orach Chaim 685:7) quotes this. It was removed from our prints of the gemara by the Maharshal, who claimed it was a mistake. However, it also appears in other versions of Tosfos such as Tosfos HaRosh.

[5] Berachos 7:20. The Rosh writes that freeing a slave in order to complete a minyan could facilitate the performance of a Biblical mitzvah if the minyan was for the reading of Parashas Zachor.

[6] Terumas HaDeshen siman 108

[7] After the first battle with Amalek, Moshe was told to write in a scroll "I (Hashem) will blot out the memory (זכר) of Amalek from under Heaven" (Shemos 17:14). The obligation to read the Megila on Purim from a scroll, as opposed to by heart, is derived from this scroll, as the similar language "remembered (נזכרים) and actioned" is used in relation to the days of Purim (Esther 9:28, Megila 18a). However, we do not find any mention of a scroll in relation to our mitzvah of remembering Amalek, either in the Torah or in the gemara.

[8] Commentary to Devarim 25:17

[9] Hilchos Melachim 5:5

[10] Mitzvah 603. See also Minchas Chinuch there, who writes that it is 'obvious' that on a Biblical level it is sufficient for each individual to remember Amalek verbally.

[11] The Shulchan Aruch (Orach Chaim 685:7) also writes just "there are those who say" that we are obligated to read Parashas Zachor on a Biblical level. His continuation that those who live in localities where there is no minyan must travel to places with a minyan for Parashas Zachor is surprising. It is noteworthy that the Levush paraphrases this language but makes a crucial change, stating, "According to the view that the two Parshiyos of Zachor and Para Aduma are Biblical, those who live in localities where there is no minyan must travel to places with a minyan."

[12] The above applies to men and women alike. The Chinuch (Mitzvah 603) famously writes that women are exempt from this mitzvah as they do not generally actively participate in war, and the idea for women to make a special effort to come to shul for Parashas Zachor is a modern day phenomenon. The truth is that this ruling of the Chinuch is his own novel idea not found elsewhere (see Minchas Chinuch), but it is quite possible that the reason that women were not particular to attend shul for Parashas Zachor in the past is because neither men nor women have any special obligation on this Shabbos.

[13] Megila 5a

[14] There are in fact several opinions:

1.       Tosfos and the Rif write that the halacha is in accordance with the lenient view of Rav, despite Rav himself not relying on it, as R' Yochanan on 19b also shares this view. This is also the view of the Rambam (1:7).

2.       The Rosh quotes R' Amram Ga'on as ruling according to R' Asi. The Rosh concurs, but explains that R' Asi agrees that one who cannot find ten people must nevertheless read the megila alone. This is also the view of the Ra'avad (1:7).

3.       Behag, as quoted by Semag and the Tur, rules that a minyan is an absolute requirement.

[15] See Shulchan Aruch, Orach Chaim 690:18 and Mishna Berura 62.

[16] Yerushalayim is currently the only city in the world with a Jewish community, known to have been walled at the time of Yehoshua bin Nun. Other cities such as Tverya, Chevron, Lod and Yafo are questionable.

[17] Although the Mishna on 2a says that in this event, the Megila is read on the Thursday, this view is not the accepted halacha.

[18] This also does not apply nowadays, as there are no such market days (see also the gemara on 2a, which says that this leniency only applies when we have a kingdom).

[19] Hilchos Megila 1:7

[20] Or Sameach, based on Yerushalmi Megila 1:3 (as usual, the Yerushalmi is not conclusive about this).

[21] Korban HaEida on the Yerushalmi there.

[22] Orach Chaim 690. R' Chizkiya da Silva (the author of Pri Chadash) was the Rav of Yerushalayim at the end of his life. However, it is unlikely that any minhag developed based on his ruling, as 15^th Adar did not fall on a Shabbos between 1683 (when he was a student) and 1700 (after his death).

[23] 690:61

[24] See for example Yabia Omer 6, Orach Chaim 46.

[25] The way that these poskim are forced to interpret the gemara (in the name of the questioner in Shu"t Chasan Sofer) is a case of extreme halachic gymnastics, which I fail to see any need for. It should also be noted that although these poskim invoke the Chazon Ish (Orach Chaim 155:2), the Chazon Ish himself only wrote that a beracha can be made if there are ten women (a position I concur with).

[26] Esther 9:22

Incitement and Free Speech

Introduction

In the 21^st century, we have become used to seeing a consistent pattern following any personal criticism. Those being criticised accuse their critics of incitement and attempt to silence them, and in turn, the critics cite the right to free speech. Often any principled debate is impossible, with two sides simply shouting over each other and no-one listening to anyone else.

Those looking to delegitimise what they call 'hate speech' rightly point out that the darkest regimes of the 20^th century started by using propaganda to promote their destructive agendas. This propaganda had significant effect, and allowed human forces of evil to carry out their plans without meaningful protest. One of the most important global questions of our times is where to draw the line between free speech and incitement.

As we shall see, although we cannot get a full answer to this from the Torah,[1] the Torah does teach us some important fundamentals as to how to approach the question.

Personal Responsibility

The first thing to establish is that by default, no-one can defend their actions with the claim that they were merely following orders from another human, unless they could not have been expected to know better themselves. This is the principle of אין שליח לדבר עבירה (there is no agency regarding transgressions), which Chazal explain is based on the rationale that when faced with a conflict between instructions, a person is expected to follow the instructions of the higher authority (a metaphor for Hashem).[2]

This principle has a secondary function - the one issuing the sinful instruction does not bear equal responsibility to that of the one who implements it. The rishonim explain that one reason for this is because the one giving the instructions doesn't fully expect them to be carried out, being aware that the 'agent' is supposed to listen to Hashem rather than to him.[3]

Based on this rationale, some write that if the instructions are given to someone who is unaware that the action is prohibited, the full responsibility does lie with the principal.[4] However, the overwhelming consensus is that this is not the case, and even under such circumstances, one is not fully liable for the actions of one's agent.[5] Speech does not carry the same weight as an action, even when there is a good chance that speech will cause others to act.

Reckoning in Heaven

This does not mean that one can say what one wants with impunity. The gemara discusses the view of Shamai HaZaken, who says in the name of the prophet Chagai that one who tells his agent to murder is liable for the actions of his agent. There are different view as to whether even Shamai meant this literally, but the gemara takes it for granted that even those who disagree with Shamai agree that one who issues such a command is culpable when it comes to the Heavenly reckoning (i.e. Hashem will punish him appropriately).[6]

While it appears that the gemara's discussion applies only to murder and not to other transgressions, the common-sense assumption that there is something wrong with telling someone to violate a prohibition must be universal.[7]

The 'Inciter'

There are exceptions to the rule of אין שליח לדבר עבירה, but they mostly involve transgressions that are not common occurrences in our generation.[8] However, one extreme case may be instructive.

One who incites others to worship idols is subject to harsher treatment than the standard procedures for capital punishment. One example of this is that whereas with other capital offenders, the court searches for any possible defence before execution, with an inciter this is not the case and it is solely up to the accused to defend himself (אין טוענין למסית). The gemara derives this from the punishment given to the snake in Eden, despite the potential defence that it was Adam and Chava who were at fault and should have listened to Hashem rather than the snake.[9]

Tosfos ask why this line of defence is invalid for any inciter – although we will not make the argument for him, if he makes the claim himself he should be acquitted! Tosfos answer that when the Torah commanded not to incite others, this loophole was closed. In other words, the Torah made an explicit qualification to the rule that the main responsibility lies with the active party.

The simple understanding is that due to the severity of the prohibition, the rule of אין שליח לדבר עבירה does not apply to idol worship. However, the gemara does not explicitly compare the case of the inciter to this rule, other than the mention of the same logic of the responsibility to follow the higher authority (דברי הרב ודברי התלמיד דברי מי שומעים).

R' Moshe Feinstein indeed claims that although only an inciter to idolatry is liable to capital punishment, Hashem does not seek to acquit an inciter to the transgression of any prohibition. He proves this from the case of the snake, who merely incited Chava to eat the forbidden fruit and not to worship idols.[10]

According to this, it appears that the rule of אין שליח לדבר עבירה never meant that giving instructions to do wrong is a lesser transgression than the act itself. The only 'leniency' is that for prohibitions other than idolatry, for technical reasons there is no punishment executed by the earthly Beis Din.

This understanding is not easily reconcilable with the explanation of Tosfos quoted above, that we would accept a defence claim from an inciter were it not for the command of the Torah not to incite. Elsewhere, the gemara discusses where the command not to incite is to be found, and one option is the injunction on mentioning the name of 'other gods.'[11] There does not appear to be any explicit command not to incite to lesser transgressions.

We can see that even regarding direct incitement, incriminating the inciter to transgressions of a lesser severity than idolatry or murder is not at all straightforward (although intentionally inciting is certainly reprehensible).

Care with Words

One who does not give a direct instruction to commit a crime is not an 'inciter,' especially if there was not even an intention to cause the crime. However, this does not absolve us from considering the possible effect of our words. Chazal tell us in Pirkei Avos (1:11):

אבטליון אומר: חכמים הזהרו בדבריכם, שמא תחובו חובת גלות ותגלו למקום מים הרעים וישתו התלמידים הבאים אחריכם וימותו, ונמצא שם שמים מתחלל.

Avtalyon says: Sages, be careful with your words, lest you become liable to exile to a place of 'bad water,' the students who follow you drink and die and the Name of Heaven will be profaned.

The Rambam writes that an example of this happened with Tzadok and Bythus, students of Antigonos of Socho. Elsewhere, Chazal describe that these students heard Antigonos's motto that one should "serve the Master (Hashem) without regard to reward" and taught it to their own students without adequate explanation. Eventually, the students concluded that Antigonos would not have made such a statement had there been any reward in the World to Come, and left the ways of the Torah.[12]

Conclusion

Returning to our original question, it should be clear that those who have the potential to influence others (today including anyone with a following on social media) should certainly take care with the way that they express themselves. The more influence that they have, the more care is required.

On the other hand, the same responsibility lies with those who attempt to silence others, even when the required care has not been taken. We must remember that terms such as 'hate speech' are subjective, and consider the effect of censorship of views that we do not like. The power to censor will ultimately change hands, and it may result in the silencing of those who espouse the values that we hold dearest.

My conclusion is therefore that although it would indeed be better if many public statements had not been made, in a public forum only a direct instruction or request for criminal activity should be forbidden.[13] Any short-term benefit of further censorship is far outweighed by the potential long-term damage.

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[1] This is actually true about almost any contemporary question, including those that appear to be purely halachic. For example, questions about the use of electricity on Shabbos require extrapolation from principles written before the discovery of electricity.

[2] Kiddushin 42b and other places.

[3] See for example Tosfos Rosh, Bava Metsia 10b (ד"ה הני).

[4] Tosfos, Bava Kama 79a (ד"ה נתנו); Yam Shel Shlomo there.

[5] Ramban Bava Metsia 10b, Shach Choshen Mishpat 348:6, Ktzos HaChoshen there 4 (see however Nesivos HaMishpat, Biurim 4).

[6] Kiddushin 43a. See also Rambam, Hilchos Rotzeach 2:2, who writes that such a person is a murderer and liable to death at the hands of Heaven.

[7] For those who want an explicit written source, this is confirmed by the Taz in Yoreh Deah 160:11. This is independent of the mitzvah of 'Lifnei Iver' (not to lead the unknowing astray), which may not apply here as the agent may not be unknowing and also may not be expected to listen. See The 'laws' of Tznius.

[8] See Kiddushin 42b-43a.

[9] Sanhedrin 29a

[10] Igros Moshe, Orach Chaim 1:99. See also 2:7, where R' Moshe contends with the claim that the snake did in fact incite to idolatry. See also the second chapter of this article (in Hebrew) by R' Zvi Rysman, for further sources supporting this claim.

[11] Sanhedrin 63b. Although the gemara concludes that there is a more explicit source in the last verse of the Torah section about the inciter, the implication is that it was only necessary to find a command not to incite to idolatry.

[12] Avos d'Rabbi Nasan, chapter 5. Incidentally, in my view this passage indicates that Chazal had a tradition regarding the World to Come and did not merely deduce this from Tanach and their own logic (in The Limits of Legitimate Belief I mentioned that some have questioned this).

[13] This does not detract from the ambition for Torah prohibitions to be criminalised, once the majority of society accepts the Torah.