How Halakhah Changes: From Nahem to the “Tisha be-Av Kumzitz”

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Overt Change: The Nahem Model

In the weeks leading up to Tisha be-Av, the Religious Zionist and Modern Orthodox communities engage in the annual rite of agonizing over the relevance of Tisha be-Av in light of the State of Israel and unified Jerusalem. The discussion focuses on the text of a short liturgical prayer titled Naḥem, recited only once a year during the afternoon Tisha be-Av service (in the Ashkenazic practice). Following Rabbi Sacks’ translation, Nahem describes Jerusalem as “laid waste of its dwellings, robbed of its glory, desolate without inhabitants. [Sitting] with her head covered like a barren childless woman.” The image is stark—and totally at odds with current reality.

Over the years, numerous articles, blog posts, and online forums have debated the continued viability of the received text. As several of the referenced articles note, positions range from advocating wholesale reconstruction to instituting minor amendments, allowing for deviations so long as they remain “private,” and, finally, resisting all efforts at change.

The dilemma is easy to understand. On its face, the liturgy strikes a false note—which a community that takes prayer seriously should try and avoid. Further, retaining the liturgy smacks of ingratitude, crying out as if Jerusalem lay in smoldering ruins, when God has granted a beautiful, populated city which sprawls out amongst the hills.[1] On the other hand, the Temple is still not rebuilt—the site currently occupied by a shrine of another religion—and the Jewish hold on the city is not without its complications. There is also a more sweeping objection: “Who are we moderns to tinker with texts that have served as the bedrock of Jewish identity for millennia?” My sense is that within Religious Zionism, there is a slow drift towards allowing for liturgical accommodation, yet the matter remains hotly debated and far from resolved.

In some quarters, the issue has moved beyond (relatively) minor points of liturgy, to questioning whether the fasts commemorating the destruction of the Temple (other than Tisha be-Av itself) remain obligatory in the era of Jewish sovereignty over Jerusalem. From a halakhic perspective, the issue revolves around talmudic interpretations of the prophet Zekhariah’s vision which indicates that when peace returns to Israel, the fast days will become holidays, and/or when Jews coexist peaceably with the Gentiles, the fast days become optional. From a theological standpoint, the matter touches on whether the Temple will be rebuilt through human actions by or via miraculous divine intervention (as the text of Nahem suggests). At the moment, the discussion about the fast days remains more of a thought experiment than a direct call to action.[2] But that this has become a thinkable thought within mainstream Orthodox Zionism, is bound up with efforts to assert Jewish rights over the Temple Mount, and reflects a sustained drift towards the idea that Jews may take an active hand in rebuilding the third Temple.

Stepping back, these debates assume a predictable form. Those advocating for change directly challenge an established halakhic norm, (text of a prayer, practice of fasting) and insist that, as a matter of coherence, authenticity, internal logic, and ideology, traditional practice must accommodate to new circumstances. However compelling the claim, this proposition inevitably engages halakhah’s reflexive resistance to change and galvanizes a reactionary movement. Conservatives respond that halakhah is immune to such arguments, and that even if the matter can be justified locally, the long-term costs of sustaining halakhic malleability far outweigh what may be gained in this particular instance.

There are times when frontal attacks on established practice gain traction, though it is more common for these movements to peter out, as few are willing to deliberately cross a bright halakhic line. But no matter the outcome, the result is vocal opposition, and, quite often, creation of yet another communal fault line.

While direct attempts to change halakhah engender public debate and attention, in recent years the practices and mood of Tisha be-Av have shifted in far more dramatic ways than modifying the lines of Nahem. These changes respond not only to the contemporary political reality (the Nahem issue) but to the cultural dissonance of wailing over the ruined Temple and bitter exile, as we live in great comfort and security. And yet, these changes go largely unnoticed and unopposed. For even as they bump up against conventional halakhic norms, rather than issue a direct challenge to established practice, they operate just beneath the surface.

Solitude and Despair: The Traditional Account of Tisha be-Av Mourning 

Any schoolchild knows that the laws of Tisha be-Av contain five basic prohibitions: no eating/drinking, washing, applying oils or creams, sexual intimacy, or wearing of leather shoes. These “capital L” Laws of Tisha be-Av determine the structure the fast, and at least within Orthodoxy, there is little movement afoot to change them.

There are, however, another set of laws, drawn from the halakhot of mourning, that work to shape the atmospherics of the day. On Tisha be-Av one is prohibited from studying Torah, either because it brings joy by engaging with God’s word, or because it will distract from the mourning of the day.[3] The Talmudic rabbis permitted studying some of the lachrymose sections of the Bible and Talmud, but even here, halakhic authorities warned that one should not dwell on matters at length, lest one reach some novel insight and find joy in the process.[4]

Other restrictions are designed to highlight a sense of forlorn solitude and suspend the normal rhythms of social and communal life. On Tisha be-Av, Jews are enjoined from greeting one another,[5] and the final meal before the fast is eaten in solitude,[6] so as to minimize the social camaraderie that naturally attends a shared meal. Finally, a ban on instrumental music applies not only to Tisha be-Av itself but to the period leading up to it.[7] This too, stems from a cessation of communal festivities, since in Talmudic times, music was synonymous with wedding celebrations.

Classically understood, Tisha be-Av, particularly the initial night through the following mid-day, was not a time to feel close to God through Torah study, prayer, or thoughts of repentance as on the other fast days. Rather the focus for Tisha be-Av was on mourning which produces a disengagement from life and society and from any sense of routine, or, as the first kinna of the morning service opens, “Cease! Get away from me!” Anyone aware of the rabbis’ appreciation of Torah study understands that prohibiting it is far more severe than forbidding food. Tisha be-Av reflects “alienation from God, complete separation or isolation from [Him],” as Rabbi Soloveitchik explained.[8] Even prayers are limited, because “all the doors and gates of prayer are closed, barricaded.”[9] The pain of destruction ought to send one into such isolation and despair that he must disconnect from the community, and, in some ways, even from the divine presence itself.[10] 

Until recently, at least in Orthodox circles, this image of Tisha be-Av was the universally regarded ideal. This does not mean it was consistently met; like all ideals, it rarely was. But in terms of what Tisha be-Av was supposed to feel like, the halakhic goals were clear. Plenty of people surely whiled away the hours in less rabbinicallysanctioned pursuits, but there were no public programs or activities signalling anything to the contrary.

Making Mourning Meaningful: Tisha be-Av as a Time for Religious Growth

Nevertheless, over the past generation, three innovations have significantly altered how Tisha be-Av is commemorated, and, in turn, what the day stands for. First, as VHS technology became widely available in the mid-1980s, synagogues started screening “Tisha be-Av videos” throughout the afternoon. These are professionally produced programs that focus on the Holocaust, the tragic points on Jewish history, and/or the dangers of speaking lashon hara (gossip and slander). 

Today the practice continues both in synagogues and online, and some of these videos even contain a slight musical accompaniment in the background. Though hardly billed as “social events,” these programs have proven popular because they bring the community together and edu-tain them during the long hours of the fast. Notably, the practice does not break along ideological lines, communities from liberal Orthodox to [American] haredi all air programming—although the tone and content may differ substantially. As a friend of mine quipped, haredim, notoriously wary of all forms of entertainment technology, likely get more screen time on Tisha be-Av than any other day of the year!

The second change relates to the in-synagogue services on Tisha be-Av morning. Traditionally, people sat on the synagogue floor until midday reciting complex liturgical elegies known as kinnot in a low, dirge-like tune with little embellishment or explanation.[11] Few had any idea what these poems meant, such that sitting uncomfortably on the floor in a darkened room did most of the work. Boredom and lack of interest were no doubt common, and as far back as the seventeenth century, rabbis already expressed their displeasure at the practice of impromptu games of “bottle-cap soccer” that took place on the synagogue floor during kinnot recitation.[12] Around the mid-2000s, technology enabled day-long lectures/shiurim/seminars on kinnot and related themes to be webcast into homes and synagogues across the county.

One of the most successful exemplars is sponsored by Yeshiva University and led by Rabbi Dr. Jacob J. Schacter. Following Rabbi Soloveitchik’s model, Rabbi Schacter begins the presentation at 9.15 am with a sophisticated, twohour source-based exploration of central Tisha be-Av themes. The program then continues with kinnot until its conclusion at 5 pm. While people sit on the floor and the kinnot are recited in the traditional tune, the overall feel is a far cry (or lack thereof) from the classic kinnot service. The program has a clear intellectual focus (in 2016, the source pack ran over 70 pages), and Rabbi Schacter emphasizes the historical, conceptual, and theological ideas that emerge from these obscure liturgical texts. (Full disclosure: I tune into this webcast every year.)

In addition to YU’s program, the Orthodox Union runs its own events in both the US and Israel. Further, even communities that do not subscribe to any of the simulcasts have local rabbis prepare detailed explanatory programs for kinnot recitation which are then advertised to the community in advance. Here, too, we should note the tension between these kinnot seminars and the classical image of Tisha be-Av. While Torah study related to Tisha be-Av themes is permitted, previous authorities stressed that learning should be limited to topics that one is not familiar with and that the study should not delve too deeply into the substantive ideas.[13] These programs, by contrast, are led by scholars who have studied the topics for years and invested considerable energy in preparing the Tisha be-Av lectures. They aim to illuminate Jewish law, theology, and history for their audiences. They are hardly superficial.

“Shall I Weep in the Fifth Month … as I have Done All These Years?”[14] 

Notwithstanding the largely diasporic changes described above, the most dramatic shift to the tenor of Tisha be-Av has taken place in Israel, particularly at the Kotel, or what was once called the Wailing Wall. As Hillel Halkin notes, Western writers, Arabs, and Jews of the modern era all referred to the spot as the “Wailing Place” and then the “Wailing Wall,” following the Arabic appellation. Travelogues written in the 1870s indicate that wailing was the site’s primary activity—and not just on Tisha be-Av.[15] Since 1967 however, Jews refer to it almost exclusively through the older, but less morose Hebrew term, the “Western Wall.” In the past generation or two, the Kotel has further transitioned from being the focal the point of Jewish wailing to the locus of Jewish pride, strength, and national resolve. There is no shortage of Facebook wall photos (including my own) that show vacationing Jewish families broadly smiling in front of the Kotel, and for years, the IDF has been holding swearing-in ceremonies for new enlistees at the Kotel plaza. The Wailing Wall is indeed no more.

While rabbis, thought-leaders, and liturgists argue whether these realities should be reflected in the text of Nahem, the experience of Tisha be-Av has already changed on the ground. Since the Kotel is a popular Tisha be-Av destination, it becomes something of a communal gathering, where one inevitably runs into long lost friends and acquaintances. This begets an awkward (and generally unsuccessful) attempt of friends trying to acknowledge one another without running afoul of the halakhic restrictions on greeting. In jest, though reflecting a deeper truth, some have taken to wishing each other a “gutte hurban” (“happy destruction day”). Whereas classical sources warned against congregating in groups on Tisha be-Av, even for otherwise perfectly appropriate activities,[16] lest it turn into a social gathering and distract from the mourning mindset of the sad day,[17] this concern is far less salient to the crowds congregating at the Kotel. The wall that acquired its name due to the Jews’ persistent wailing now elicits more smiles than wails—even on Tisha be-Av itself.

The gathering at the Kotel has publicized and popularized another new tradition (likely started in Orthodox summer camps), the “Tisha be-Av kumzitz.” (Let that phrase sink in for a moment.) This involves people either sitting on the floor or standing and swaying together at the Kotel plaza while singing soulful Jewish songs—a practice common to periods of intense spiritual focus, but not classically associated with Tisha be-Av.[18] Numerous videos attest to song sessions on the night of Tisha be-Av, as well as throughout the afternoon, but the crowds and intensity clearly grow as the day wears on, culminating in the final hours of the fast. By now, these spontaneous sessions of song have become institutionalized, and the setting is used to strengthen the spiritual resolve and bonds of national/Jewish unity amongst the assembled.

Explaining this practice, one often hears that since the Temple was destroyed due to sinat hinnam—baseless hatred between Jewish sub-groups—it is only proper that Tisha be-Av serve to remedy this national shortcoming. But while the classical literature surely maintains the Temple was destroyed due to baseless hatred, the halakhot of Tisha be-Av all push against the idea that the day itself should be marked by community building and social healing. (In fact, the laws of Purim are far more suited to these aims.)

In any event, by swaying, hugging, and soulfully chanting with Jews of different stripes, the intensity and slight deliriousness that attends the end of 25hour fast, becomes a moving, ecstatic, and in many ways optimistically joyful expression of religious fervor and unity.This effect is reinforced when these videos are proudly shared across social media, symbolizing the triumph of the Jewish soul and national and spirit. By contrast, can you imagine Jews in eleventh century Worms or nineteenth century Vilna sharing images of their Tisha be-Av as a triumph of Jewish peoplehood? And, while one suspects that members of Jerusalem’s older Lithuanian communities, and perhaps even some Religious Zionists, find these “sing-ins” in bad taste and pushing the appropriate boundaries of the day, the practice is rarely criticized. Every year, the size and ideological diversity of the chanting crowds seems to grow.

Analysis and Conclusion

The afternoon videos and lectures, the extended kinnot and Torah-study sessions in the morning, and the kumzitz at the Kotel plaza are all in tension with the spirit, if not the letter, of what until quite recently were accepted halakhic norms of Tisha be-Av. The first two aim to create a more relevant and spiritually “productive” Tisha be-Av. These draw on the modern preference for more affirming and engaging religious experiences, though what they yield is somewhat at odds with the halakhic vision of mourning. The third shift ties the quest for ritual relevance to the process of making Tisha be-Av more congruent with the national state of mind. Though it is exceedingly difficult to square communal song and embrace with the halakhic thrust of the day, the scene at the Kotel reflects the fact that, in a unified Jerusalem, Jews no longer wail in solitude lamenting a distant Temple. Instead, they gather at the theological one-yard line to fervently demonstrate just how close they are to it. And though the event is neither as formally sanctioned or as celebratory as the priestly blessing ceremony held on the major holidays, the effect is not altogether different.

Despite their apparent novelty, these practices range throughout Orthodoxy, and none is associated with liberal or reformist groups seeking to reinterpret or change the character of the day. To take it a step further, those participating in these events tend to be of the most serious and committed Jews who aspire to spend Tisha be-Av engaging its central themes. People who observe Tisha be-Av in a more perfunctory manner are not interested in learned lectures or soulful chants, opting instead to pass the time at home, watching TV or fiddling with electronic devices; to say nothing of the great number of Jews who do not observe Tisha be-Av at all.

In sum, when the status of Tisha be-Av is argued frontally and ideologically, the result is friction, dissention, and a status quo stalemate. The most significant changes, however, occur underneath. Without mounting a structural assault on Tisha be-Av’s rules or underlying premises, communities have refashioned the halakhah to fit both their religious sensibilities and political commitments. Thus, the day that classical halakhah portrays as a forlorn emptiness, devoid of community, Torah, and song, is now commemorated—we might even say celebrated—through Torah study, community building, and song.

The fast of the fourth month, the fast of the fifth month, the fast of the seventh month, and the fast of the tenth month shall become occasions for joy and gladness, happy festivals for the House of Judah; but you must love honesty and integrity.

[1] See Rabbi David Shloush, Resp. Hemdah Genuzah § 22:8, who advocates for changing the received text due to concerns of of making false statements in prayer and demonstrating ingratitude to God.

[2] Rabbi Shloush’s responsa cited above contains a detailed halahkic analysis of this issue as well.

[3] SA, OH § 554:1. The competing reasons are cited in Taz to OḤ § 554:2 and Maharsha to Taanit 30b.

[4] Mishnah Berurah to OḤ§ 554: 4-5. Arukh ha-Shulhan to OḤ § 554:3.

[5] SA OH§ 554:20.

[6] SA OH § 552:8.

[7] Mishnah Berurah to OḤ § 551:16.

[8] Joseph B. Soloveitchik, The Lord is Righteous in All His Ways: Reflections on the Tish’ah be-Av Kinnot, ed. Jacob J. Schacter (Jersey City: Ktav, 2006), 19.

[9] Ibid, 15.

[10] See ibid., 1-31.

[11] SA, OH § 559: 3 & 5.

[12] See Eliyah Rabbah to OH § 559:17; see also Mishnah Berurah to OH § 559:22.

[13] See notes 3 & 4 above.

[14] This is the question the Jews asked to the prophet Zecharia: Must they continue to fast on Tisha be-Av in commemoration of the First Temple, when the Second Temple was standing?

[15] Halkin quotes the British Reverend Samuel Manning, who traveled to Jerusalem in the 1870 and wrote, “[a] little further along the western [retaining] wall we come to the Wailing-place of the Jews … Here the Jews assemble every Friday to mourn over their fallen state … Some press their lips against crevices in the masonry as though imploring an answer from some unseen presence within, others utter loud cries of anguish.”

[16] Rema, OḤ § 559:10 (approvingly citing custom of visiting a cemetery on Tisha be-Av).

[17] See Mishnah Berurah OH § 559:41, citing Rabbi Isaiah Horowitz’s Shenei Luhot ha-Berit.

[18] A parallel development is the shift from the pre-Selihot fire and brimstone mussar talk, to the “pre-Selihot kumzitz,” a phenomenon itself worthy of study. However, there seem to be fewer formal halakhic impediments to communal song before Selihot than on Tisha be-Av.

Chaim Saiman, a Lehrhaus Consulting Editor, is a Professor and Chair in Jewish Law at Villanova University’s Charles Widger School of Law where he teaches Jewish law, contracts, and insurance. He has served as the Gruss Professor of Jewish Law at both Harvard and U. Penn’s law schools and as fellow in Religion and Public Life at Princeton University. His book, Halakhah: The Rabbinic Idea of Law was published by Princeton in 2018.