Lust- Permitted and Forbidden

In recent years there seems to have been a constant spotlight on the attitudes of public figures to ‘alternative lifestyles.’ Generally (non-charedi) politicians have faced criticism from only one direction, when their views have been deemed by some to be primitive.

When rabbis and other religious leaders have expressed their positions, the reactions have been more varied. Some have faced similar criticisms of being ‘unenlightened,’ some have been labelled as dangerous or accused of compromising on halacha, and others have faced the wrath of both sides of the spectrum. As one friend told me, for those interested in avoiding this, it seems that the best thing is to keep quiet.

For a long time my inclination was also not to write about this topic, as in terms of halacha there is not much to speak about. However, over time I have realised that there are questions that we need to address, mainly philosophical ones. As in my view the standard answers one can find are not sufficient, I have decided to present things the way I see them. Hopefully the net result will be positive.

Ideals and necessities

The question that bothers many people is what exactly the Torah expects from a person whose only sexual drive is towards people of the same gender. I believe that in order to answer this question, we first need to clarify something about the Torah attitude to physical desires for things that are permitted.

It is well known that the Ramban explains that the command to be holy is a general instruction to be abstinent. He understands that without this mitzvah, it would be permitted to eat uncontrolled quantities of kosher food, and to conduct marital relations constantly with an unlimited number of wives (as long as the wife is not in her menstrual state).

Although the Rambam does not count this command as a mitzvah,[1] the same principle appears in his writings in even stronger terms. The importance of distancing oneself as much as possible from pursuit of all forms of physical pleasure is a recurring theme in Moreh Nevuchim. He writes that it is a necessity for one who wishes to achieve wisdom, closeness to Hashem and certainly prophecy.[2]

The Rambam explains further that sexual pleasure is (spiritually) lower than all other physical pleasures. In no fewer than four places, he quotes the statement of Aristotle that this part of our existence is a disgrace to humanity.[3] While eating and drinking for a human can be qualitatively different than for animals, intercourse is purely animalistic.[4]

However, the lowliness of this human instinct is something the world cannot manage without. Obviously without procreation humanity (and all life) would die out, and without animalistic desire there would be no procreation. When the Knesses Hagdola experimented removing this desire, the result was that even chickens stopped laying eggs.[5]

For this reason, the Torah not only obligates men to engage in procreation.[6] Even when procreation is impossible, under normal circumstances man and wife may not withhold marital relations from each other (unless there is mutual consent).[7] Without this, marriages could break down and there would be no firm basis for the birth and raising of children.

At the same time, we are urged not to let our lives revolve around animalistic acts. We are told about how the Chachamim did all that they could to limit the physical pleasure involved, and that everyone should try to emulate them on their own level.[8] If we lose sight of this, the results can be disastrous.

Extraneous desires

The Rambam explains that the purpose of many of the mitzvos of the Torah is to keep our animalistic instincts in check. The most obvious is the prohibition of intimate relations with a single woman, limiting such activity to a framework with obligations.[9]

We also cannot marry whoever we want. Many family members, even some without any blood relationship, are forbidden as they are often at close quarters. This prohibition helps ensure that the relationships which inevitably exist between opposite genders within a family do not get out of control.[10]

According to the Rambam the purpose of circumcision, the positive mitzvah kept by the highest percentage of Jews today, is to limit physical pleasure during marital relations.[11]

With all of this in mind we can start to explain what the Torah was addressing when it forbade homosexual relations. This prohibition certainly applies both to those who are attracted to the opposite sex and those who are not, but since the nature of the action is so different for these two types of people, we need to ask which group this command was designed for.

As we have written before, although there is a tangible, perceivable benefit to the performance of mitzvos, this can only be true for the majority of people, times and places.[12] It therefore makes sense to say that at least the prime purpose of this prohibition is for the heterosexual majority. If constraining our natural desires is important, refraining from pursuing unnatural ones is critical. Thus the prohibition of homosexual relations is similar in nature to the prohibition of bestiality.

Variation or Disorder?

We now need to address the issue of the minority of people who have no attraction to the opposite gender. Based on what we have written already, it is clearly impractical to expect people to marry without this attraction. The question we must ask is if anything can be done to engineer such an attraction, and if not, is there any way that these people can develop intimate relationships within a halachic framework.

First we must state some scientific information, based on research done by professionals:[13]

1) Unlike disorders like paedophilia, homosexual orientation is not associated with any other disorder (i.e. homosexuals are not more likely to have mental or physical defects).

2) It is believed that homosexuality is caused by a combination of factors, one of which is genetics. However, no explanation has been found for the ability of ‘homosexual genes’ to survive the obvious reproductive disadvantage.

3) A person’s sexual orientation can change, but there is no evidence that any human treatment can influence this.

Because of this, most of the modern world views any attempted corrective treatment in a very negative light. The argument is that not only will such treatment fail, in the mind of the patient it will reinforce the idea that there is something wrong with him, causing unnecessary psychological problems.

This position is also accepted by some orthodox religious Jewish movements for homosexuals, who want to keep halacha and complain that they get no sensible answers from rabbis about how to do this. They concede that there is no way to allow homosexual intercourse, but demand that guidelines should be given about what exactly is permitted and what is not.[14]

I partially accept these complaints. Irresponsible statements made by those ignorant of the basic issues can cause untold damage, creating the impression that people who are different to the majority have no place in Judaism. It is also unhelpful to give people false hopes by prescribing treatments with no evidence of success.

However, I also believe that it is a mistake to fully accept the position of those who do not share our faith in the Torah. For them, there is no reason to place any constraints on animalistic desires and thus no point in trying to facilitate normal family relationships.

When people are convinced that there is a problem, there is no way of telling what creative solutions can be found. Over the last hundred years scientists have found successful treatments for conditions that few would have believed possible. And psychologists continuously search for better ways to treat a wide range of mental conditions, even when there are no clear scientific rules.

In our case the first step is to recognise that homosexual orientation is a problem, even if it is unrelated to other mental disorders. If the lack of drive for reproduction was more widespread, the human race would be an endangered species. And as scientists already know that sexual orientation can change, there is a clear opportunity to research what can cause this change.

Temporary solutions

The likelihood is that even if the whole world would accept that this phenomenon is a problem, it would take some time to find an effective solution. We still need to provide guidance to those who recognise their problem, and want to know how to live their lives while there is no known solution.

The halachic question of what exactly is forbidden and permitted for homosexuals is not straightforward. As many of the prohibitions of contact between people of opposite gender are preventative measures, without a good understanding of homosexual desires it is hard to extrapolate.

Perhaps the more significant question here is non-halachic (or meta-halachic). Although we need to care for and sympathise with everyone, we must put the needs of the majority before those of the individual. For communities to accept the legitimacy of same-sex ‘couples’ would reinforce the perception of most of the modern world that already has somewhat permeated into our society, with many negative effects.

There is no uniform answer that we can give here for all people. Religious leaders need to understand both the ethos of the Torah and the nature of the problem they are dealing with, and work with individuals to find the best course of action.

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[1] In his fourth rule at the beginning of Sefer Hamitzvos he explains that this command merely emphasises that we must keep the whole Torah, and does not add anything specific.

[2] Moreh 2:36

[3] Ibid., and 2:40, 3:8 and 3:49

[4] Ibid. 2:36

[5] Sanhedrin 64a

[6] Technically this obligation applies only to men, and a woman may choose not to get married. Although clearly if a large number of women made this choice it would become very hard for men to fulfil their obligation.

[7] See for example Mishnayos in Kesuvos 61b and 63a.

[8] See for example Nedarim 20a, and Shulchan Aruch Orach Chaim 240:8

[9] Moreh Nevuchim 3:49

[10] Ibid.

[11] Ibid.

[12] See Eternal or Obsolete.

[13] I am no professional in this field, and this information comes primarily from this article on Wikipedia. Some may want to dismiss this research as the work of those with a pre-written agenda, a claim which is not easy to prove or disprove. As I believe that nothing here is contradictory to the Torah, I am assuming that the information is correct.

[14] See for example the website of 'havruta' (mainly in Hebrew).

Eternal or Obsolete?

A question that we often have to deal with as religious Jews is whether the Torah or some parts of it are relevant to the modern world. The main halachic question is when and if a mitzvah can be declared inapplicable due to the reason behind it becoming obsolete. This topic is huge in terms of the amount written by Chazal and their commentaries, but I will try to explain the general principles and discuss a few examples.

Ta’ama d’Kra

The gemara in many places explains that there is a fundamental dispute between the Tana’im whether we expound the ta’ama d’Kra, the reason for what is written in the Torah. From the cases given, it is clear that the dispute includes whether or not we have the right to limit prohibitions to cases where the reason is relevant.

The classic case is the commandment not to take the clothing of a widow as security for a loan.[1] R’ Yehuda says that this prohibition applies to any widow, rich or poor. R’ Shimon disagrees, maintaining that the only problem with taking this security is the necessity to return it whenever the borrower needs it.[2] A poor widow will need the clothing often, and if the lender is constantly coming to her house to return people will suspect an inappropriate relationship. With a rich widow this problem doesn’t exist, as she will have plenty of clothes and will manage without one item.[3]

The halacha follows the opinion of R’ Yehuda, and it is forbidden to take clothing as security even from a rich widow.[4] However, the Rambam explains that this does not mean that the reason of R’ Shimon is rejected. The reason for the prohibition is indeed the possible bad name that the widow may get, but it applies even when the reason does not exist.[5]

As the Rambam writes elsewhere, the benefit that comes from mitzvos can only be for the majority of people. Some will even lose out in this world by keeping the Torah, but it is nevertheless necessary to have one rule for everyone. The alternative, allowing different boundaries according to the person, would cause everyone to lose out. Similarly, the mitzvos cannot all be tuned to the needs of every generation.[6]

For this reason, the Torah gave certain powers to the Chachamim to uproot mitzvos at times of need. Examples of this are the writing down of the Oral Law to prevent it being forgotten,[7] and the institution of Pruzbul to prevent loans being absolved in the shmita year.[8] However, these powers have boundaries and are limited to cases where the need is communal. Furthermore, only the Sanhedrin is granted such powers.[9]

Without the Sanhedrin we really are left with major problems without good solutions.[10] But we can have no complaints about this, as it is our responsibility to take steps to facilitate the re-establishment of the Sanhedrin (see Ubitul Sanhedreya).

Rabbinical Institutions

Until now we have discussed Torah laws, given to us by Hashem. When it comes to rabbinic enactments, the issue becomes more complicated. The mishna tells us that even the Sanhedrin cannot rescind a decree of previous generations, unless they are greater both in wisdom and numbers than their predecessors.[11]

Without a Sanhedrin, under normal circumstances we cannot even consider annulling a rabbinic enactment (with the exception of monetary issues, which can be defined by communal agreement as we explained in Nezikin) The question we need to answer is what happens when the reason behind them ceases to be relevant.

This question is debated by the Rishonim. The Rambam writes explicitly that a Beis Din cannot rescind an institution of its predecessors unless they are greater in wisdom and numbers, even if the reason for this institution disappears. The Ra’avad points out a difficulty with this statement, seemingly indicating that he disagrees.[12] However, from the case that the Ra’avad quotes, it is clear that his disagreement is only about the requirement for a greater Beis Din. He maintains that even a lesser Beis Din can rescind a decree that has become obsolete, but he also agrees that the decree does not dissolve automatically.[13]

This would seem to shut the door on any possibility of the rules changing from the times of the gemara onwards.[14] The truth is that it is not so simple, as elsewhere it is explicit that some rabbinic enactments do dissolve automatically when they become irrelevant. In the mishna we are told that a virgin woman must get married on a Wednesday.[15] The gemara discusses the reasons for this, and concludes that as nowadays these reasons are no longer relevant, this requirement no longer applies.[16]

The Ritva explains that although usually rabbinic decrees do not dissolve automatically, this case is different. Here, a clause in the original decree stated that it would apply only as long as the current conditions applied. The clear implication is that most decrees were made without such a clause. But is this true about all other decrees?

This question seems to be an issue of some debate. Tosfos in many places assume that certain rabbinic prohibitions and obligations only apply when the reason for them still exists. Thus in places where snakes are uncommon there is no prohibition of drinking water that was left uncovered,[17] in places where there is no ‘salt of Sodom’ there is no obligation to wash ones hands after a meal,[18] and when we do not know how to fix musical instruments, dancing on Shabbos is permitted.[19]

All of these issues are debated, although to different degrees. The Vilna Gaon was stringent concerning all of these questions,[20] and the Rambam also does not mention any leniencies. However, while many are particular about washing after a meal, and some refrain from dancing on Shabbos for halachic reasons, it is extremely rare to find someone who is particular about drinking water that was left uncovered.[21] How can we understand this, and what is the correct way to decide these questions?

Sadly, I have no great answer. It is extremely hard to prove the issue either way. As we are dealing with a question on a rabbinic level and the prevalent custom is not to be particular about uncovered water or washing hands after a meal,[22] I also am not particular about these issues. When it comes to dancing on Shabbos I tend to refrain, as it is not at all clear to me that the reason for this prohibition does not exist.[23]

Advice

Sometimes it is more straightforward to be lenient. Often Chazal advised against certain practices without making an official decree. For example, in the Mishna we are told that teaching one’s daughter Torah is tantamount to teaching her promiscuity.[24] Although the Rambam limits this statement to the Oral Torah, he maintains that one should ideally not even teach his daughter the Written Torah.[25]

Without getting into a discussion about the reasons for this statement of Chazal, to my knowledge no sect of Judaism still applies it literally. Even the most Chasidish girls schools teach Chumash (usually with Rashi as well). Why here did no-one think to claim that the words of Chazal hold strong here even if the reason has gone?

The answer is that here no enactment was made in the first place. It was never forbidden to teach women Torah, it was just ill-advised according to Chazal. The moment that teaching Torah to women became something positive, it was obvious that it must be done.

There are many other examples of statements of Chazal that were meant as advice, rather than formal enactments. When deciding whether changing circumstances change the halacha, it is crucial first to determine whether we are dealing with a prohibition or obligation, or merely with good advice. It is not always one hundred percent clear what falls into which category, and clarifying this often requires familiarity with the language of Chazal.

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[1] In Devarim 24:17

[2] See Shemos 22:25-6, Devarim 24:12-3 and Bava Metsia 113a-114b

[3] Bava Metsia 115a

[4] See Choshen Mishpat 97:14

[5] Commentary to the Mishna, Bava Metsia 9:13. See also Sma and Shach to Choshen Mishpat 97:14, who give alternative reasons applicable to all widows.

[6] Moreh Nevuchim 3:34. See also 3:29 there, where the Rambam explains that many of the mitzvos were necessary in order to distance us from the idolatrous and ridiculous practices of the ‘Tzaba’ sect that were prevalent in the times of Avraham Avinu.

[7] See Temura 14b, and the Rambam’s introduction to Yad HaChazaka.

[8] See Gitin 36a. See also Rambam and Ra’avad, Hilchos Shmita v’Yovel 9:16 who dispute whether this could work during times when Shmita applies Biblically. Here, a mitzvah meant to help the poor by wiping debts, in fact caused them more problems when no-one was prepared to lend them money.

[9] If everyone could decide for himself, we would come back to the same problem described by the Rambam. See Responsa Sridei Eish 1:77, at the end of section 8.

[10] One example that bothers me a lot is the prohibition of lending and borrowing with interest. This mitvah was clearly intended to prevent exploitation of the poor, and to encourage helping those in need. However, nowadays when the global (and local) economy depends on the ability to borrow large sums of money, it simply is not possible to run a country while avoiding this prohibition in simple terms. The solution of heter iska is far from perfect halachically, and also can effectively kill off the entire prohibition with all its benefits. Other potential solutions would require some creativity, and the power of the Sanhedrin to make them practical and enforceable.

[11] Eduyos 1:5. The gemara in Avoda Zara 36a goes even further, explaining that some decrees that were accepted by all of the Jewish People cannot be nullified even by a greater Beis Din. See Rambam, Hilchos Mamrim 2:2-3 and Ra’avad there who dispute exactly when this applies.

[12] Mamrim 2:2

[13] His proof is from the gemara in Beitsa 5a-b concerning fruit produced by a tree in its fourth year. Such fruit must either be taken to Yerushalayim and eaten there in a state of purity, or redeemed with money (this money must later be taken to Yerushalayim in order to buy food there to eat in a state of purity). An institution was made that any fruit within a day’s journey from Yerushalayim should be taken itself and not redeemed, in order to decorate the streets of Yerushalayim with fruit. When the city was destroyed and occupied by non-Jews, R’ Yochanan ben Zakai (the head of the Sanhedrin at the time) annulled this obligation despite the fact that he was not as great as those who instituted it.

[14] See How does halacha work? where we explained why nowadays (until the re-establishment of the Sanhedrin) the gemara is the only ultimate halachic authority.

[15] Kesuvos 2a

[16] Ibid. 3a. The gemara stipulates that this is on condition that the husband ensures to make all the required preparations beforehand.

[17] Avoda Zara 35a (ד"ה חדא). Chazal forbade drinking such water, as they believed that it was dangerous to drink water that snakes had drunk from.

[18] Berachos 53b (ד"ה והייתם קדושים)

[19] Beitsa 30a (ד"ה תנן). Chazal forbade dancing on Shabbos out of concern that people might fix musical instruments (Ibid. 36b). Here even if we don’t except the position of Tosfos, there is some discussion as to what kind of dancing was prohibited. See Aruch Hashulchan, Orach Chaim 339:9.

[20] Biur Hagra, Orach Chaim 181:10 (concerning washing after a meal); Ma’aseh Rav, Hilchos Ma’achlos Asuros 95 (concerning water left uncovered).

[21] Even in Eretz Yisrael, where snakes are far more common than in Western Europe (where the Ba’alei Hatosfos lived).

[22] Although many men have taken on mayim acharonim (washing hands after a meal), I have very rarely seen families where the women were particular about this. As there is no halachic difference between men and women here, this can only mean that even those men who are particular about this do so as a chumra (additional stringency).

[23] See Aruch Hashulchan, Orach Chaim 339:8. If everyone is dancing and abstaining would make a scene, I simply walk round in the circle with everyone else. This certainly cannot be considered dancing.

[24] Sotah 20a. See Rambam, Hilchos Talmud Torah 1:13 and Shulchan Aruch, Yoreh Deah 246:6 who rule like this view in the Mishna.

[25] Ibid.

Capital Punishment

While the Knesset have been debating whether or not to make it easier for courts to apply the death penalty that already exists in Israeli law, various misleading statements have been issued. I thought it would be appropriate to clarify the halachic side of this discussion.

As I have already written about the special status of war (see War and Peace), for the purposes of this post I am assuming that this special status does not exist. I will also not be discussing any ‘leniencies’ that may exist when it comes to non-Jews.[1]

Anyone who has read the Torah will know that the death penalty does exist in Judaism. Equally, anyone who has learnt some amount of gemara (or read halachic literature derived from it) will know that in practice the application of the death penalty was always rare. The conditions required are so strict to make it virtually impossible.[2]

However, these conditions exist only when it comes to the statutory death penalty. The gemara tells us that a king has the right to kill anyone who disobeys his orders, as long as they do not contradict the Torah.[3] This is derived from an explicit verse, in which the people assure Yehoshua bin Nun that anyone who disobeys him will be killed.[4] The Chinuch states the obvious, that he does not need to have the usual standard of proof to impose this punishment.[5]

Who has the authority?

What happens when there is no king? Clearly the right to punish is not limited to a bona fide king, as Yehoshua bin Nun himself was not one.[6] But exactly how far does this go?

The gemara tells us that Beis Din can punish even when there is no Torah source for doing so, in order to make a ‘fence’ for the Torah. In one example of this, when a certain person rode on a horse on Shabbos (a violation of a rabbinic decree), it was deemed necessary to put him to death. In another example, due to the needs of the time, a man was given lashes for carrying our marital relations in public.[7]

The Ran explains that enforcement of the laws of the Torah is always the responsibility of Beis Din. However, in order to run a country, additional laws and forms of enforcement are necessary. These additions are generally the domain of the king. However, when there is no king, Beis Din is given charge of both of these tasks. This is why Yehoshua bin Nun was given the power to put people to death, even though he was not a king.[8]

The implication is that any ruler accepted by the people, by whatever means is normal in that country, has the right to enforce law like a king does. As the Rambam writes concerning the other powers of a king (whether Jewish or not), if the population accept the coinage of a king they have in effect accepted him as a ruler, and they are his subjects.[9]

A similar point is made by the Meiri (1249-1315, Provence). Explaining why we find cases in the gemara where laws were enforced by dayanim who did not have semicha (see Ubitul Sanhedreya), he says that when authority was given by the state authorities, the assumption is that the community also accepts this authority. He adds that this authority even enables the dayanim to impose capital punishment.[10]

This power is not necessarily limited to religious leadership. The Rosh (1250-1327) writes that the Tovei Ha’ir (lay leaders of the community) also have the power to impose punishments not stipulated by the Torah.[11] This ruling is codified by the Rema.[12]

From all of this it should be clear that any legitimate government does have the halachic authority to impose punishments as they see fit, including capital punishment. If we accept the legitimacy of the Israeli government regarding tax collection and the like,[13] we cannot deny their right to determine when and if capital punishment is appropriate.

Limits and Responsibility

Common sense tells us that this considerable power that the government has is not unlimited. If the government decided to impose capital punishment on anyone caught jay-walking, we would rightly call them murderous. As I wrote in The right to resist the abuse of power, governments are bound by the accepted standards of the time. Where to draw the line is not a hundred percent clear, but when many parts of the western world still have the death penalty for murder this cannot be considered illegitimate.

Obviously, none of the above necessarily implies that it is sensible to impose capital punishment. We have seen two reasons that may necessitate punishments not prescribed by the Torah. The first reason, strengthening the Torah by building a fence (to reinforce to people the severity of transgressions) is clearly not practical or effective when the majority of people are not Torah observant.

The second reason is for maintenance of law and order, as described by the Ran. This may be relevant even now, but the government must act responsibly and examine carefully whether the death penalty will achieve this aim. Above all, they must conduct themselves in the way the Rambam writes about a king:

Just like the Torah gives him great honour, and all are obligated to honour him, so did the Torah command him to make his heart humble inside him.…. He should not deal with Israel with too much brazenness, …. he should be merciful to the lowly and great (of stature) and deal with their desires and interests……. He should always act with exceptional humility.[14]

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[1] The truth is that there is little evidence for any difference between Jews and non-Jews in the bottom line halacha here. Furthermore, as the accepted ruling is that we even can break Shabbos to save the life of a non-Jew to avoid animosity, we certainly cannot afford to make any differentiation here.

[2] See Makos 7a and Shevuos 34a for examples of how clear the evidence has to be. In addition, for beis din to be able to apply the death penalty it is necessary to warn the offender of this penalty within a few seconds of committing the crime, and for him to state explicitly that he doesn’t care (Sanhedrin 40b).

[3] Sanhedrin 49a. See also Rambam Melachim 3:8-10

[4] Yehoshua 1:18

[5] Mitzva 497. See also Minchas Chinuch there, who explains that this applies only to putting someone to death, or confiscating the property of one deserving of death.

[6] See Mishpat Kohen siman 144 for a discussion of the halachic status of Yehoshua bin Nun.

[7] Sanhedrin 46a

[8] Drashos HaRan, Drush 11

[9] Hilchos Gezeila 5:18

[10] Beis Habchira, Bava Kama 84b (ד"ה ויש מתרצין)

[11] Bava Kama 9:5

[12] Choshen Mishpat 2:1

[13] As Rav Ovadya Yosef does in Yechave Da’as 5:64, and the Tzitz Eliezer does in 16:49.

[14] Melachim 2:6

The Twilight Zone

Introduction

Few halachic questions come up as often as the one about when the day starts. Once a week all religious Jews ask “When does Shabbos come in?” (except in the summer for those who bring it in early at the same time), and a day later they ask “When does Shabbos go out?” Every day our davening times are affected by the same question, and at times like Chanuka things get even more confusing.

For this reason, I am sure that virtually all readers will have at least some knowledge of the topic. Some will also know how complex the issue is in the gemara and commentaries, and hopefully some will also know enough to argue with some of my conclusions.

Sunset and Stars

We first need to state an assumption which may be obvious for most. The halachic day (24 hours) starts at the beginning of the night.[1] Thus the critical question is when the night starts.

The gemara derives that the halachic daytime goes from Alos Hashachar (dawn) until the stars come out. Thus mitzvos such as circumcision, which must be done during the day, have to be done during this period.[2]  From here it would seem that we just need to define more clearly what ‘the stars coming out’ means, and this time will be the start of the next day.

The reality is not that simple. Elsewhere we are introduced to the concept of Bein Hashmashos (literally ‘between the suns’), a time when uncertainty exists whether it is day or night. Several opinions exist in the gemara, but for the purposes of simplification here we will present just the view of R’ Yehuda, according to Rabba (the view that is accepted in halacha, at least for most purposes).

Once the sun sets, we have entered Bein Hashmashos. This continues as long as there is redness on the western horizon, and even after the bottom part of the horizon has darkened. Only when the top part of the horizon has darkened to the same degree as the bottom part, we can be sure that it is night. The length of Bein Hashmashos is the time that it takes to walk three quarters of a mil (mil= 2000 amos, about 960 metres).[3]

The gemara continues with another way to tell the difference between day and night. If only one star can be seen, it is definitely still day. If two can be seen, it is Bein Hashmashos. If three can be seen, it is definitely night. The gemara clarifies that the stars referred to are not the big ones that can be seen even during the day (perhaps a reference to Venus), nor the small ones that can only be seen well into the night. Rather, we are referring to medium-sized stars.[4]

Tosfos point out the seemingly clear contradiction. If, as the gemara says in one place unambiguously, night starts when the stars come out, why elsewhere are we told about a doubtful period? They answer that the uncertainty is over the very definition of ‘the stars coming out,’ as is explicit in the gemara that there are different sizes of stars.[5] The implication is that from sunset there is already a doubt whether ‘the stars have come out.’[6]

The Rambam writes that the period between sunset and the appearance of three medium-sized stars is called Bein Hashmashos in all places.[7] Understandably, when formulating most of the other halachos dependant on day and night he gives no further explanation, relying on the definition given already.

However, there is one exception. In Hilchos Kiddush HaChodesh, the Rambam states the halacha that the declaration of the new month can only be done during the day.[8] Here he clarifies that this declaration can be made until two stars have come out. After this it is too late (as it may already be night), and the declaration has to wait until morning.[9] What is special about Kiddush HaChodesh?[10]

The Maharalbach explains that only when it comes to Kiddush HaChodesh can we rely on stars to determine when the day has ended, as this mitzvah is under the jurisdiction of Beis Din. Due to the difficulty in determining exactly when the right stars come out, we need a clearer measurement for mitzvos that all are responsible for. Thus from sunset we must be concerned that the next day may have already started. However, when it comes to Kiddush HaChodesh, Beis Din can know that it is still day even after sunset.[11]

How long is a mil?

Even after we have been given sunset as a clear indicator of the start of Bein Hashmashos, we are left with the appearance of three stars as the indicator of the end of it.[12] However, as we mentioned already, Chazal did tell us that Bein Hashmashos lasts the time it takes to walk three quarters of a mil. If we can determine how much time this is, now that we have clocks we should be able to pinpoint Bein Hashmashos exactly.

Theoretically, one way to do this would be to use the time that it takes an average person to walk three quarters of a mil (about 740 metres[13]). This would give us a time of about nine minutes. However, this is impossible for many reasons. Firstly, nine minutes after sunset no-one can see three stars. Secondly, as we will see this would not fit with what the gemara says elsewhere. We must conclude that in the time of Chazal people did not walk as fast as they do now.[14]

The truth is that how long it took to walk a mil in the time of Chazal can be extrapolated directly from another section of the gemara.[15] Rabbah bar bar Chana says in the name of R’ Yochanan that an average person can walk 10 parsa (parsa= 4 mil) in a day. The first 5 mil are walked from Alos Hashachar until sunrise, and the last 5 mil are walked between sunset and the stars coming out.

However, this statement is refuted by a braisa (Mishnaic period source) that says that only 4 mil are walked between Alos Hashachar and sunrise, and another 4 mil between sunset and the appearance of stars.[16] Thus the time taken for the sun to pass through the ‘thickness of the sky’ is a tenth of the length of the day.

The gemara concludes that although the statement of R’ Yochanan as given above is definitely problematic, it is possible that a more accurate version of his statement is correct. It could be that R’ Yochanan “only spoke about the day, and the rabbis made a mistake in calculating the time before and after.” How we understand this correction of the original statement is critical.

Rashi explains that R’ Yochanan merely said that an average person walks 10 parsa a day, and did not specify when they start or finish walking. In fact they usually start before Alos Hashachar and finish after the stars have appeared, allowing them to walk 5 mil before sunrise and 5 mil after sunset. Between Alos Hashachar and sunrise, and between sunset and the stars appearing, there is only enough time to walk 4 mil.

With this information, calculating the time taken to walk a mil is relatively simple. Assuming that the gemara is talking about the average day, with 12 hours between sunset and sunrise,[17] it takes 12 hours to walk 8 parsa (one parsa is walked before sunrise, and another parsa after sunset). Thus it takes one and a half hours to walk one parsa, or 22.5 minutes to walk a mil. So Bein Hashmashos is three quarters of 22.5 minutes, just under 17 minutes.

The Vilna Gaon explains differently. R’ Yochanan really meant that a person walks 10 parsa in the 12 hours between sunrise and sunset, but he was misinterpreted to include the time before sunrise and after sunset. Thus each parsa takes 72 minutes to walk, and each mil 18 minutes. The length of Bein Hashmashos is three quarters of 18 minutes, 13.5 minutes.[18] [19]

The Rambam writes that one can walk 15 mil between sunrise and midday (6 hours).[20] According to this a mil takes 24 minutes to walk,[21] so Bein Hashmashos is three quarters of this, 18 minutes. This position seems difficult, being in accordance with the original version of the statement of R’ Yochanan which the gemara rejected.[22]

Practical Application

Whether Bein Hashmashos is 13.5, 17 or 18 minutes, there seems to be a problem when it comes to translating this into reality. Even in Eretz Yisrael, we generally see three stars only about 25 minutes after sunset[23] (this increases further from the equator).

Even if we do accept a length of Bein Hashmashos of 17-18 minutes (13.5 is usually discounted as being unrealistic), this is certainly not uniform. As the Vilna Gaon points out, the length varies during the year, and with altitude.[24]

In order to achieve logical times for the whole year in all places, many suggest that we assume a Bein Hashmashos of 18 minutes at sea level, at the equinox in Eretz Yisrael.[25] We should measure how many degrees the sun is below the horizon 18 minutes after sunset, and extrapolate that at all times and in all places, ‘the stars come out’ when the sun is this number of degrees below the horizon.[26]

In my eyes, the big problem with this is that the gemara glaringly omitted to mention any difference based on time of year or altitude. To assume that the gemara spoke specifically at the equinox and at sea level seems fanciful. The problem is magnified by the fact that some of the differing views in the gemara disagree over only a few minutes, implying that they believed the times they were giving were to a high degree of accuracy.

It is interesting to note that as we quoted above, the Rambam in Hilchos Shabbos tells us only that Bein Hashmashos is until the stars have come out, and does not say how long this is. Elsewhere he tells us vaguely that it is ‘about a third of an hour.’[27] It could be that he was aware that the times given in the gemara are not 100% reliable, and to be safe we should check for the stars ourselves.

I conclude that although the halachic calendars we have are immensely helpful, we should be aware that they are not the final word. While the times given for the end of Shabbos usually include enough stringency to make them reliable, the more sophisticated calendars that give times that appear to be exceedingly accurate are probably not. When it comes to mitzvos like saying Shema at night, or deciding which day a baby boy was born for the purposes of fixing when the Bris will be, great care must be taken.

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[1] Although Rashbam in his commentary to Bereishis 1:5 (in uncensored versions) seems to dispute this, his explanation was only meant on the level of pshat (simple meaning) and not halachically. This is clear from his introduction.

[2] Megila 20b, from a verse in Nechemia 4:15

[3] Shabbos 34b

[4] Ibid. 35b

[5] Megila 20b ד"ה והא, Pesachim 2a ד"ה והא

[6] Although based on other comments of Tosfos, the ‘sunset’ they are referring to is not what it seems. They accept the explanation of Rabeinu Tam, that sunset here means ‘the end of the sunset’, which is much later than what we call sunset. Throughout this post we have assumed the position of the Vilna Gaon (and the Geonim), who rejects the view of Rabbeinu Tam as it does not fit with reality.

[7] Hilchos Shabbos 5:4

[8] When there is a Sanhedrin, for the start of the new month to be on the thirtieth day from the previous new month, it was necessary to first accept testimony about the sighting of the new moon and then for the Sanhedrin to designate that day as Rosh Chodesh.

[9] Hilchos Kiddush HaChodesh 2:9. Although there is a seeming internal contradiction within this halacha, almost all the commentators I have seen explain that the cut-off point is two stars, and based on the gemara this must be the case. See for example Biur Chadash Maspik.

[10] According to the Rambam sunset cannot be synonymous to the appearance of two stars (similar to the answer of Tosfos above), as if this was the case he would not have needed to give a different indicator of Bein Hashmashos to the normal one.

[11] Shu”t Maharalbach siman 144. He explains that the appearance of two stars sometimes occurs immediatetly at sunset, but it can be up to a twelfth of a mil (one and a half to two minutes) later than this.

[12] This is not a difficulty with the explanation of the Maharlbach, as one who cannot discern three stars will remain in doubt until he can. It is only critical to have a clear indicator of the beginning of  Bein Hashmashos, so that people do not erroneously think it is still day when they fail to notice the stars. See Piskei Ri’az, Shabbos 2:4 (paragraph 8) who says that the indicator of the appearance of stars was given only as a stringency and cannot be relied on to be lenient.

[13] As you might expect, this is also an issue of a debate and according to some poskim it is as much as 864 metres. The figure given above is the more accepted one (and also the more realistic one, but showing this would require another post).

[14] This fact can be supported by other evidence from sources in halacha and elsewhere, but there is a limit to what I can write here.

[15] Pesachim 94a

[16] The commentaries point out the seeming major contradiction between this and the three quarters of a mil measurement given above, a problem I have not dealt with here.

[17] Many early poskim mistakenly believed that the average day has twelve hours between Alos Hashachar and the appearance of stars, throwing these calculations off. See Levush, Orach Chaim 267:2 and Biur HaGra, Orach Chaim 459:2 who point out this mistake.

[18] Biur HaGra ibid. He brings support for this from the Rambam’s commentary to the first Mishna in Berachos. Here the Rambam says that the time between Alos Hashachar and sunrise is 72 minutes (although it seems that the Rambam retracted from this position, as we will explain).

[19] It is worth noting that the Gra in Orach Chaim 261:2 writes that the statement that one star is day, two Bein Hashmashos and three night, is according to the differing view of R’ Yosi. His position is that Bein Hashmashos does not start at sunset, but 13.5 minutes later (according to the Gra), and lasts only for ‘the twinkling of an eye.’

[20] Hilchos Korban Pesach 5:9

[21] A position stated also in his commentary to the Mishna in Pesachim 3:2

[22] The Gra writes that the Rambam must have had a different text of the gemara.

[23] Although some have claimed that people with astronomical knowledge do know where to see stars at the appropriate times. See this article (in Hebrew) for details.

[24] Places that are high up (like Yerushalayim) see sunset later, but the appearance of stars is unaffected by altitude. Thus Bein Hashmashos is shorter at higher altitudes.

[25] The equinox is chosen in order to achieve 12 hours between sunrise and sunset.

[26] At the equinox Bein Hashmashos is at its shortest. Using this method means that in the middle of the winter and in the middle of the summer, Bein Hashmashos in Eretz Yisrael at sea level is 24 minutes.

[27] Hilchos Trumos 7:2. This fits with the time of 18 minutes that follows from what he wrote in Hilchos Korban Pesach.