Subjective Experience in Halakhah: Music During Sefirah as a Case Study

A recurring concern regarding the mourning periods during Sefirat Haomer and Bein Hamitzarim (“The Three Weeks”) is the chasm between our “ritual” acts of mourning and our emotional experience during this time. We may get into the technicalities of if and when men are allowed to shave and which activities are permitted, but we struggle to feel a deeply personal sense of loss during this time period. Rabbi Mosheh Lichtenstein^[1] compared observance of Sefirah in Eretz Yisrael to an “obstacle course” – the object of the prohibitions is to get around them. Yet, while he gets a myriad of questions about what is permissible to do during Sefirah and what is not, he has never been asked if it is acceptable to go to a movie or hold a concert on the night of Yom Hashoah or Yom Hazikaron. The reason, he says, is simple – we want to feel restricted on Yom Hashoah/Yom Hazikaron because we feel the tragedy; they “assist, not restrict.” But the trauma of the death of Rabbi Akiva’s students and the Crusades seem too far removed to feel a natural motivation to mourn. So, too, during Bein Hamitzarim, we struggle with this as well. Dr. Erica Brown writes:

Even when we recognize the cognitive importance of recalling the past, we are not always capable of rising to the emotional challenge of reliving it. Instead, we often find ourselves immersed in the particularities of Jewish law, reviewing the minutiae of observance, not always as a preparation for this period but often as a distraction. If we lose ourselves in the questions of whether or not to listen to music on a radio, buy particular objects of clothing if they are discounted, or engage in instructional swimming, we may avoid the more essential task of the season: creating genuine sorrow over the incalculable loss of our Jewish spiritual center. We measure ourselves by outward displays of mourning – the unshaven beard, the unironed clothes, the limitations on external expressions of happiness – but the heart often remains untouched.^[2]

We find it challenging in these “forced” periods of mourning to force ourselves to mourn. Halakhah tells us to do certain things or not to do certain things to generate mourning, but we struggle to feel the impact.

One area of mourning customs during these time periods where we struggle with this tension and that has an important impact on our experience is that of the restrictions on music.

The halakhic literature related to music during Sefirah and Bein Hamitzarim obviously contends with the fact that music can bring joy. Magen Avraham (493:1) says that one should avoid dancing during this time period, which logically leads to the prohibition of live music. The question in contemporary times, though, surrounds recorded music. While, based on Magen Avraham, it is widely accepted that listening to live music during the mourning period of Sefirah is prohibited, poskim disagree about the extent of the prohibition. Some assert that all music is prohibited (regardless of whether or not it is live, recorded, instrumental, or a cappella), with others arguing that a cappella music is acceptable, and others contending that one may listen to even instrumental music on a personal device.^[3]

It seems that these poskim focus on recorded music as a “heftza,” as a categorical object, but this status does not necessarily depend on the subjective experience of the “gavra,” the person.^[4] This is reasonably consistent with how Halakhah often works; we have objective definitions for what is permitted and forbidden. Of course all poskim are trying to define joy, but it comes from a relatively objective definition as opposed to a subjective definition. While it may seem counterintuitive, objectivity is a cornerstone of Halakhah. As Rabbi Joseph B. Soloveitchik writes in Halakhic Man, “A subjective religiosity comprised of spiritual moods, of emotions and affections, of outlooks and desires, will never be blessed with success.”^[5]

As applied to the periods of Sefirah and Bein Hamitzarim, making our own internal decisions about how to mourn – and even what music we listen to – would make it very difficult to experience religious mourning. Can we make those determinations in the moment? How do we define those standards? Consistent structure gives a framework for interacting with mourning, particularly to mourning events in history (avelut yeshanah) to which we lack personal relationships. Unlike examples of avelut hadashah, where we personally experience the rupture in the relationship, when it comes to avelut yeshanah, Halakhah gives us a means for creating the emotional experience when it otherwise would not be there.

Still, objective standards may not entirely define the mood that we try to capture during these times. Can what causes overly abundant joy really be defined by instruments versus vocals or the live versus recorded nature of the music? This is particularly an issue because in the last two decades, much of the a cappella music—which is sometimes specifically prepared for Sefirah and the Three Weeks and is careful to specify that it only involves vocal music—is engineered to sound very much like instrumental music. Sometimes, songs that were originally techno are covered and turned into upbeat, a cappella versions. On the one hand, it is a cappella and sounds reasonably different; on the other hand, such music may or may not contribute to a feeling that one is in mourning.

Furthermore, how do we account for the different ways in which people experience mourning? When we look broadly at halakhic standards for mourning, these standards are meant to concretize what is supposed to be an inwardly emotional experience. In fact, R. Soloveitchik himself argues that while objectivity is necessary in Halakhah, it does not preclude spiritual experience: “The Halakhah, which was given to us from Sinai, is the objectification of religion in clear and determinate forms, in precise and authoritative laws, and in definite principles. It translates subjectivity into objectivity, the amorphous flow of religious experience into a fixed pattern of lawfulness.”^[6]

As applied to mourning, our emotions are channeled into the acts of refraining from shaving, attending celebrations, and listening to music that might lead to dancing, but that is not meant to negate the point of origin, namely the spirit of mourning. Our choices on Spotify are meant to reflect something we feel, not some sort of emotionally detached religious stricture.

Furthermore, while Halakhah mandates certain actions in the realm of mourning and rejoicing, those acts are not meant to be robotic. As R. Soloveitchik writes:

Let us not forget that avelut (mourning) in Halacha consists of more than the performance of external ritual or ceremony. It is far more than that. It is an inner experience of black despair, of complete existential failure, of the absurdity of being. It is a grisly experience which overwhelms man, which shatters his faith and exposes his I-awareness as a delusion. Similarly, the precept of simhat Yom Tov includes, not only ceremonial actions, but a genuine experience of joy as well. When the Torah decreed “and thou shall rejoice in thy feast,” it referred, not to merry-making and entertaining, to artificial gaiety or some sort of shallow hilarity, but to an all-penetrating depth-experience of spiritual joy, serenity and peace of mind deriving from faith and the awareness of God’s presence.^[7]

R. Soloveitchik’s invoking simhat Yom Tov is an important proof because while the Talmud defines meat and wine as providing joy on Yom Tov, the directive extends to experiencing joy in whichever way one finds it on their subjective terms.^[8] Perhaps this should be true in the area of mourning as well. Hilkhot Aveilut and their relevant applications for Sefirah and Bein Hamitzarim include concrete regulations, yet perhaps in certain areas, such as music restrictions, it might matter how one experiences mourning.

Two contemporary and popular Israeli poskim seem to approach music during Sefirah and the Three Weeks in this manner. In his work Peninei Halakha, Rabbi Eliezer Melamed explains that, first of all, listening to music on a device is not a catalyst for extraordinary joy, given how regularly we do it now (which is different than going to a live concert, which is a whole event and is a likely catalyst for dancing). But unlike other poskim, he does not distinguish between a cappella versus instrumental, or live versus recorded. He writes that the emotional nature of the song is what matters most:

In addition, a distinction should be made between joyous songs and regular songs. Only regarding joyous songs is it logical to prohibit household devices, but one should not prohibit regular music – and certainly not sad tunes – during the mourning period of the Omer. One who wishes to act leniently may rely on this opinion and listen to regular and sad songs on a household, electronic device. He should not, however, listen to them loudly, because the force of the sound that fills the room generates a certain atmosphere of jubilation.^[9]

R. Melamed’s criteria are not so quantifiable. While we can know that some music technically is produced solely through vocals or involves instruments, and likewise we can define music as being transmitted live versus through a recording, it is much harder to define the emotional status of a piece of music. What is considered “sad?” The criterion of volume is incisive, but what qualifies as loud versus soft? These are relatively subjective criteria and do not involve the clear cut definitions that are often examined by the poskim.

Similarly, Rabbi Yosef Tzvi Rimon also distinguishes based on the emotional vibe of the song, but he takes it one step further in basing these considerations on personal experience:

The customs of mourning during Sefirat Haomer were not established to prohibit “enjoyment” but in order to decrease “joy.” Therefore, one could distinguish between music which causes joy and thereby is prohibited, and music (from an electronic device) that merely gives one pleasure and is not prohibited. Therefore, it would seem that there is apparently room to permit listening to quiet and relaxing songs from an electronic device if they are relaxing and pleasurable, as long as they do not bring one to “joy.”

Practically, it seems appropriate to distinguish between different people. There are some people for whom all music causes them joy. It would seem that for those people, it should be prohibited to listen to almost all music (even electronically). But there are some people for whom relaxing music does not cause them joy but pleasure, and it helps them work, drive, and carry out daily chores. For such people, it would be permitted to listen to background music (through an electronic device).^[10]

Rav Rimon goes the furthest in suggesting that, while one should not listen to recorded music that induces joy, a posek cannot objectively say that certain songs are permissible or prohibited. Each individual has to craft that experience for themselves.

A practical difference between the approach of R. Melamed/R. Rimon and other poskim might be the a capella music that sounds akin to instrumental music. From a technical halakhic perspective, this should not be problematic for those who listen to a cappella music. But anecdotally, some have argued that because of that, as far as “the spirit of the law” goes, this music does not really contribute to the relatively mournful mood that is meant to be created during this time period. Thus, one who follows R. Melamed or R. Rimon could find themselves avoiding certain types of a cappella music while in fact listening to some instrumental music!^[11]

Personal Reflections

Long before I developed a love of learning Torah, music was the bedrock of my Avodat Hashem, my service of God. While my musicality as a child included playing violin, singing, especially as part of tefillah, was integral to my religious connection. Music, in general, is intertwined with my emotional experience.

In applying the approaches I have discussed to my own relationship with music and Sefirah/Bein Hamitzarim, R. Rimon’s approach strongly resonates. Practically speaking, at least one of my personal halakhic authorities permits listening to recorded music fundamentally. Based on that alone, it would seem that there is not much to discuss. Still, I have long followed the minhag of listening to only a cappella music.

Indeed, because of how central music is to my life, despite the fact that some a cappella music may sound similar to instrumental music, I can viscerally feel the difference. Not to say that the production quality of a cappella music is bad; to the contrary, today’s a cappella music is very well done. But in my own subjective way, I can feel the difference between listening to lively Yom Tov music on Pesah and then transitioning Motzaei Pesah to music that does not have the fullness of instrumental music. And still, a cappella music with upbeat percussion, especially when it’s a cappella simhah songs, feels strange to me. And yet, despite my personally identifying with R. Melamed and R. Rimon’s approach, I have not quite shaken my minhag of only listening to a cappella music. I find myself looking for a cappella music that is slow and solemn, while saving the more upbeat a cappella music for exercising and driving.

I have found a great niche in soulful a cappella music, which is interestingly very much on the rise in the last decade. Projects such as Ari Goldwag’s A Cappella Soul, Benny Friedman’s Whispers of the Heart, and Doni Gross’s Kumzitz in the Rain have attempted to cultivate the spirit of these time periods and do so quite successfully. It is not even that every tune is slow, but they are more melancholy. While one could choose not to listen to this music altogether, as it too can bring “enjoyment,” R. Rimon’s approach teaches that that is not the point. In fact, I think there is a mitzvah to be found in listening to soulful a cappella at this time. With music being so integral to my Avodat Hashem, the right tunes with the right spirit can actually define this time period as one of yearning, improvement, and connection. If the Halakhah were to unequivocally prohibit this, then so be it, but music of the right tone may in fact not be a distraction, it may be an enhancement of what this time period is all about. One could arguably say that some of the slow, instrumental “kumzitz” music achieves this same objective as well.

I should be clear that individuals should follow their personal/communal rabbinic authorities. But where one has latitude, it is worthwhile for each of us to consider how music enhances or detracts from the stated goals of these time periods. That could mean that different people will have different musical preferences for these time periods that all have validity. In a world where observant Jews seek to strike the balance between authority and autonomy, it is possible that here not only is some autonomy acceptable, but it may be necessary to truly carry out the Halakhah both in name and in spirit.^[12]

One way or another, when I return to my instrumental, fast-paced music on Lag Ba-omer, I am again reminded of the difference in spirit, and I personally feel the distinction between the time for mourning and the time for joy. As the Talmud tells us, “Whether one decreases or whether one increases, as long as they direct their heart to Heaven” (Menahot 110a).