Shlomo Zuckier
Introduction
The crisis precipitated by the novel Coronavirus and the distancing measures in its wake have led to a flurry of halakhic decisions, many of which reflect deep questions of Jewish law and values. Placing any system under stress serves to reveal its tensions and gaps, and Halakhah is no different.
Possibly the most acute example of this appears in the case of Zoom Sedarim, which featured a controversy starting around Rosh Hodesh Nisan on both sides of the Atlantic. As we will see, these discussions are complex, as several different scenarios are being discussed, and a variety of halakhic and meta-halakhic issues are at stake – the halakhic status of electricity, questions of unity and diversity in halakhic decision-making, and the phenomenology of virtual reality.
The goal of this article is to make some seder, some order, out of the controversy, to separate out the various issues at hand and emphasize both new trends as well as consensus views that emerge from the discussion. The decisions presented on a variety of issues reflect in many cases surprising developments or applications of Halakhah, and we will find several cases of unlikely alliances between divergent parties.
Recap of Events
The debate began with the pronouncement of the “Association of Rabbis of the Maghreb in Israel,” a group of fourteen Moroccan rabbis who asserted that, in order to allow families to include grandparents in their Seders this year as usual, despite social distancing, it would be permissible to set up a Zoom call before Hag and include the larger family together in one festive seudah. The response was immediate and powerful: it was attacked by current Ashkenazic Chief Rabbi of Israel David Lau and even more forcefully by former Sephardic Chief Rabbi Shlomo Amar. Rabbi Yitzchok Zilberstein, a major decisor for the Haredi world, penned an objection as well. Several rabbis retracted their endorsement of the original position almost immediately, and the decision was reissued with a mere seven of the original fourteen signatories. Rabbi Yosef Tzvi Rimon offered an alternative – having a Zoom pre-Seder on the afternoon of Erev Pesah to sing holiday tunes with extended family prior to logging off and holding a classical Seder with the smaller group in the room – a suggestion that has gained much traction, echoed by both Israeli and American colleagues.
In America, while some have addressed the question of using Zoom to facilitate multi-generational Seders, most of the discourse surrounds a different issue, those who live alone and for whom being isolated for three days might lead to mental health challenges. In cases of danger to life there is an uncontroversial permission to violate the usual rules of Yom Tov; the question here has primarily been what exactly is included in pikuah nefesh, life-saving measures.
Speaking generally, then, there are really two separate discourses going on – an Israeli discussion over family unity and preserving the multi-generational Seder, and an American discussion over preserving life through cellphones, Zoom meetings and other virtual means. This is at least partially a function of circumstance: the calendar outside Israel this year features a so-called “three day Yom Tov,” over 72 hours without electronic communication, a real challenge for some who are isolated physically and may have a history of mental health challenges. One wonders whether certain deep-seated cultural differences may play a role as well: Israel, and particularly its sizable Sephardic community, is very committed to the hamulah, close familial kinship, and especially joint religious experiences. As some of the written decisions indicate, it is not clear that everyone will partake in a Seder if it does not include the extended family. On the other side, Orthodox communities in the United States are increasingly weakening the stigma of mental health and raising publicly more halakhic issues in that vein.
I would like to consider here three different debates or shifts that have occurred as a part of these discussions, and to analyze what underlies these debates.
Zoom be-Seder?
The dispute here does not feature much purely halakhic discussion aside from one major, longstanding debate. On both sides, the Israeli decisors have rarely invoked technical halakhic considerations in their decisions, preferring to focus on the broader policy concerns: will people follow the details and scope of the permissive view? Will this lead to disunity among rabbinic decisors? Will this facilitate increased observance and health?
The major halakhic debate lurking in the background is the question, first raised in the late nineteenth century, as to how electricity should be viewed by Halakhah. All agree that the use of electrical appliances is prohibited on Shabbat, but there are four different theories that have been offered as to why this is the case. Everyone knew electricity must be prohibited, but they just didn’t know what the precise basis of the prohibition would be. The approaches, discussed at length in many volumes, can be roughly summarized in bare-bones fashion as follows:
- Eish – Electricity is like a fire in the wire, prohibited due to the melakhah of Eish.
- Boneh – The use of electricity, which entails building circuits and empowering electronic appliances, entails the completion of a building project, prohibited due to the melakhah of Boneh. This view is most closely associated with the Hazon Ish.
- Derabanan/Molid – Electricity is not biblically prohibited, but it entails a rabbinic prohibition (or possibly a “strong minhag,” in some formulations), possibly because it creates something new. This is the view attributed to R. Shlomo Zalman Auerbach, and is also the most prevalent view among responsa today.
- Makkeh be-Patish – Since using electricity involves a constructive, creative act, it is included in this “catch-all” melakhah. This view is championed by R. Asher Weiss.
There are many differences between these views in their application on Shabbat. Possibly the most significant difference between these views applies in connection with Yom Tov. Since fire is permitted to be used on Yom Tov for a purpose, those who see electricity as Eish may generally use it. This is not only the view of many Moroccan decisors, but of other Sephardic and Ashkenazic poskim as well, most prominently the Arukh ha-Shulhan. (Several students of Rabbi Joseph B. Soloveitchik have related that it was his practice to turn on and off lights on Yom Tov, as well.)
Over the past half-century, the consensus view has been primarily to follow approach 3, which gives a fair amount of flexibility in applying the prohibition of electricity on Shabbat, although it also means it is generally prohibited on Yom Tov. To a significant degree, Moroccan and other decisors have minimized communal reliance on the opposing position, despite still accepting it “me-ikkar ha-din,” as the basic law. There seems to have been a preference for uniform communal standards: if Morroccan and other Sephardic Jews use electricity on Yom Tov while their Ashkenazi neighbors are told not to, that would weaken that prohibition and create an unusual communal dynamic. (Consider the parallel scenario of kitniyot, where Israel has seen a trend in recent years of Ashkenazim giving up the practice.)
The question is, what happens in a moment of crisis? Is there room to rely on that permissive position once again? The Moroccan rabbis’ decision asserted that, with the proper safeguards, they could rely on it. In a scenario with the computer set up before Yom Tov (so adjusting it hopefully wouldn’t even be necessary), very clear statements that this be done only in extreme circumstances like this year for those who need it, and a clear purpose serving the sanctity of the day, they saw fit to allow Zoom Seders.
Those representing the opposing view have generally not attempted to delegitimize the halakhic position itself, but instead to raise policy questions surrounding it that serve to render the position moot. Several of these are raised by the original pesak and parried, only to be resurrected by its critics, including concerns of a slippery slope and the argument that using Zoom is uvdin de-hol, a weekday-like activity.
In addition to these policy questions, the main animating force behind the Israeli discussion is how to apply the widespread view among some Moroccan and Ashkenazi decisors of the previous generation that electricity may be used on Yom Tov for one’s holiday needs. It is for that reason that the attacks on that decision, as well as the retractions, invoked considerations such as “rabbinic unity,” “the nature of halakhic decision-making,” and the like. While several of the opposing arguments refer in a general sense to issues of Jewish law that permitting Zoom raises, they generally do not make sustained halakhic arguments (with the exceptions largely stemming from American decisors). This can be attributed to the fact that, at least before one gets to the meta-halakhic issues, all agree that there is a strong argument to be made in the Moroccan tradition to permit Zoom Seders.
In fact, one argument offered against the Zoom Seder by an Israeli decisor, when considered closely, reveals the difficulty of using meta-halakhic categories. Rav Yitzchok Zilberstein, a prolific author on halakhic topics, was asked by his brother-in-law and acknowledged gadol R. Chaim Kanievsky to offer a response to Zoom Seders stemming from the Haredi world. His response draws primarily on a responsum by Rav Moshe Feinstein disallowing use of timers to set automatic activities to take place on Shabbat because that entails zilzul Shabbat, a denigration of the day. Hosting a Zoom Seder, even if set up before Yom Tov, he argues, would similarly serve as a denigration of Yom Tov. The problem with this position is that ziluta is inherently a subjective thing; the greatest proof to this is that, at least in American observant communities, the use of timers and “Shabbos clocks” is widespread, relying on several positions that disagree with Rav Moshe. Presumably this shift away from Rav Moshe’s decision is at least partially due to the fact that as various technologies became more ubiquitous and less jarring, they became less of a denigration to Shabbat for them to happen automatically.
Thus, one might raise the question that, while Rav Zilberstein’s decision works to prohibit Zoom on Yom Tov today, it might not work at some future point when automated videos are more widespread and less of a denigration to the day. Consider the fact that many shuls have rotating screens running all Shabbat giving the day’s schedule, which would have felt antithetical to the spirit of the day just 25 years ago.
And yet, one can turn the question of technology’s relentless advance around, as well: even if one might theoretically find a permissible way to use Zoom on Yom Tov, would the day still offer the experience we have come to associate with it? Or has the phenomenon of “twenty-four hours without screens” merged with the identity of Yom Tov (and Shabbat) to such a degree that such a distinction is not possible? This question might reveal a tension between technical and experiential ways of approaching Yom Tov here, a distinction to which we will return below.
The meta- and para-halakhic arguments deployed against the Moroccan permissive ruling thus argue against relying on that decision, but generally do not attack its fundamental basis. As reliance on electronic appliances and communication becomes more central to day-to-day life, these broader arguments might militate either for greater stringency (to distinguish Shabbat from weekdays) or, alternatively, greater leniency in applying existing halakhic categories to use of Zoom and similar applications.
Zooming to Save Lives
Across the pond, the discussion in the United States regarding use of Zoom to support those in danger has also been an interesting one. Once again, the core halakhic issue has been laid out long ago – this case in consensus rather than debate. As the Talmud and Shulhan Arukh set out, when a person’s life is endangered, even if only doubtfully so, one may – and must! – violate Shabbat or Yom Tov without any worry. The divergences among different opinions thus hinge on questions of where to draw the line, as well as how exactly to implement and publicize this permissive ruling.
As to the extent of pikuah nefesh that would justify performance of melakhah, Rav Hershel Schachter published an important and fairly wide-ranging permissive position. He writes that it is permitted to violate Yom Tov through whatever means would be helpful, not only in a case where there is certain risk to a person’s life (through self-harm), but even in a case where there is a minor possibility of risk. Furthermore, even in cases that don’t carry any risk to a person’s life, but would potentially lead to significant downgrading of one’s mental health (“losing one’s mind”), it is permitted to violate Yom Tov by whatever means necessary, including phone or Zoom calls to the relevant individuals. This is a permissive position, although it draws upon earlier principles, both that of the aforementioned Shulhan Arukh and the position of the Soloveitchik family that loss of mental health qualifies for pikuah nefesh as well. Rabbi Yoni Rosensweig went into even greater detail in delineating specific scenarios and where he would see the threshold of health risks permitting the violation of Yom Tov.
Maybe the most significant shift is one focused on messaging rather than content. Rav Schachter’s important decision was originally communicated to rabbis with the stipulation that it not be publicly disseminated, presumably based on the fear that it might be misconstrued or misapplied. Days later, presumably after consultation with rabbis and others regarding the risks, the same decision was publicized in fleshed-out form for public consumption.
His decision was followed by a similar ruling by Rav Dovid Cohen, more squarely in the Haredi American world, also endorsing use of technology in cases of risk. Just yesterday, Rav Mordechai Willig suggested that all rabbis be accessible by phone to congregants who may be in crisis over Yom Tov. Presumably the decision by all these rabbis to publicize their ruling in this way was made with the understanding that the risk of publicizing the pesak and having it be misunderstood was dwarfed by the risk of not having enough people be aware of the permissive position, which might lead to them endangering their lives.
Is Zoom for Real?
One other set of discussions taking place primarily in America relates to the way that one classifies the use of electronic communications. This discourse builds upon but extends beyond the various positions noted above as to why electricity is prohibited on Shabbat. It focuses on the question of how to understand virtual communication, as part of the broader phenomenological question of how to understand and classify virtual reality, which is becoming more and more pressing each day. In a sense, these questions are relevant not only because it is necessary to consider the nature of Zoom and other technologies in evaluating their halakhic permissibility, but also because the world we live in has migrated communication almost exclusively to the medium of texting, e-mail, WhatsApp, Zoom, and other virtual means. This shift in experience can be seen as a question not only of Halakhah but of phenomenology as well.
This question of how to evaluate technologies in this vein carries countless ramifications. For example: Is sending someone a text message, or writing on a computer screen, considered a form of “writing” that is prohibited on Shabbat? If one hears a berakhah over Zoom, is it proper to say Amen? Can one fulfill mitzvot through virtual modes of communication?
There are essentially two views of this issue of how to view virtual reality from the perspective of Halakhah: a realist and a formalist view. Do we take seriously these new experiences with technology and say that, in real terms, typing a text on a computer or phone accomplishes the same goal of writing letters and is to be considered “Kotev?” Or do we say that, formally applying the halakhic categories, the text needs to be written on paper with some form of ink (see Shabbat 104b), and this does not qualify, at least not in full form?
As should be clear, this is not a question of leniency versus stringency – it runs in both directions, and is primarily a question of phenomenology and definition of categories. Every legal system has to define and redefine its categories as it faces new realities. With the shift in human interaction, and the corresponding new halakhic realities, this question of defining virtual reality emerges. (And, of course, it is possible to distinguish between different scenarios and emerge with complex views that depend on the particular category at hand. Still, there is a certain commonality among the examples that make them worth exploring together.)
This question first arose recently not in the context of Pesah but a month prior, right before Purim, when Rav Schachter wrote, drawing upon a position of Rav Moshe Feinstein, that those in quarantine with no other option could listen to the Megillah via Zoom or a phone call and fulfill the commandment in that way. This presumes that listening to the Megillah through a virtual medium qualifies as “hearing it” rather than serving as a detached experience.
There is another hint of a realist view in Rav Schachter’s distinction between phone calls and Zoom meetings. He asserts that, in cases that do not rise to pikuah nefesh but have some other overriding reason to allow contact (such as helping someone carry out their Seder despite lacking other options), it is possible to start a phone call before Yom Tov and continue it over the Seder. (He is very hesitant in embracing this option, and suggests that every alternative option be considered.) However, he asserts, one should not have a Zoom meeting, because that would violate Roshem, a subcategory of the prohibited action of Kotev (writing), as participating in a video means one is broadcasting a particular picture. While, he asserts, it is not prohibited to look into one’s own computer, because that is “like a mirror,” communicating that image to others over Zoom qualifies as Roshem. The difference-maker between a case of turning on one’s own camera and the scenario of sending it to others is presumably based not on electronic differences but on experiential ones – the real effect of having others see one’s video at a distance, qualifies as the prohibition of Roshem.
There are limits to this realist view, however: while one can “hear” or “write” from a distance, one cannot form a virtual quorum; presence is still lacking, as Rav Schachter spells out in another recent decision. Presumably there are distinctions to be made between the various categories. As technologies advance and new questions emerge, we will have to wait and see how various decisors treat each scenario.
The Israel-based decisors do not raise these issues. Presumably, part of this is attributable to their views on how to apply Roshem. But one might also see an opposition to the realist approach reflected here.[1] Additionally, some of the Israeli teshuvot go out of their way to note that one cannot fulfill the mitzvot of the Seder by hearing it over Zoom – virtual presence is insufficient. Generally speaking, the formalist approach will continue applying the previous, technical categories – use of electricity and the like – and not consider emergent categories such as Roshem. This seems to characterize both sides of the Israeli discourse fairly well.
On the other hand, Rav Schachter has found some unlikely allies in conceptualizing virtual communication as “real” – Rabbi Ysoscher Katz of Yeshivat Chovevei Torah and two rabbis of the egalitarian halakhic Yeshivat Hadar, Rabbis Ethan Tucker and Aviva Richman.
- Katz published a primer giving practical advice as to how to use Zoom over Yom Tov for those at mental health risk. While generally following the guidelines that R. Schachter did, R. Katz asserts that both activating a new Zoom session and turning on a computer may be prohibited biblically, which has implications for how one might try to use a shinui in doing so, where possible. This argument has not, to my knowledge, been asserted by any of the many articles that have discussed this issue (although see now the recent position publicized by Eretz Hemdah). R. Katz notes further that, in cases where there is no risk, using Zoom on Yom Tov “is not merely a biblical or Rabbinic prohibition; it is, in fact, much worse… [it] will undermine the core essence of Shabbat and chag.” Related to his realist view of technology, R. Katz makes an appeal based on the nature of the day and the human experience of interaction with technology as something that should be prohibited, and severely so, regardless of one’s views of the technicalities of electricity. It appears that R. Katz is self-aware of his phenomenological stance; he argued several months ago that “once the definition of what is considered ‘doing’ changes, our understanding of what constitutes a ‘melacha’ has to change as well.”
The Hadar article regarding Zoom goes in several other interesting directions. It not only invokes “writing” as potentially prohibiting several scenarios including use of chat functions, saving a recording, or possibly having one’s image be seen (the last in agreement with Rav Schachter), but it also suggests some new potentially forbidden activities involved in using Zoom. One is the issue of Hashma’at Kol, making noise, which is not usually applied for transmission of regular human speech. Most surprising is the invocation of the prohibition of Tehum, the prohibition to walk outside of one’s area on Shabbat and Yom Tov. While applying this category is “admittedly more of a metaphoric concern” as no one is moving, the article argues that “part of Shabbat and Yom Tov is remaining local and making do with the things and people who were in your spatial civilization when you began Shabbat.” (One reading this line hears echoes of a critique of the Conservative movement’s teshuvah permitting driving to shul on Shabbat.)
While I don’t think arguments of this type have been offered in halakhic sources in the past, and I don’t see them gaining traction within Orthodoxy in the future, this view does reflect a similarly realist conception of technology. If on Shabbat one is meant to interact only with one’s local geographic community, that should remain true for interaction through technology as well.
This realist view appears in a different context in the letter, as well. Specifically, Rabbis Tucker and Richman are open to the possibility of fulfilling various verbal and aural obligations at the Seder over a Zoom or phone call, although they assert it is better for one to not rely on this and rather recite those texts oneself, if possible. This reflects that same realist approach, although applied here for the sake of a leniency.
Conclusion
The halakhic debates over Zoom and Pesah, when dissected into their component parts, bring to light deep-seated debates on a variety of halakhic and meta-halakhic issues. Questions of the halakhic status of electricity as well as its phenomenology and the ramifications of offering differential decisions for various groups and doing so publicly or privately, all shape various parts of this debate. When one boils down the questions that divide between the various positions, rather than the standard “right wing versus left wing” explanation, one finds a distinct set of differentiating factors:
- What are one’s views about the halakhic status of electricity on Yom Tov, both in theory and in practice? This largely breaks down along communal lines, between Moroccan rabbis (along with some Ashkenazi precedents) and the mainstream view.
- To what extent is one thinking locally or globally in deciding these halakhic issues? For example: Should one worry about implications for different communities? The “slippery slope” extending this permission to future scenarios? For what Yom Tov and Shabbat might look like in the future? Is it better to keep a decision “under wraps” or to disseminate it, and what are the stakes?
- Is one a realist or a formalist regarding virtual reality technology? Does hearing over Zoom constitute actual halakhic hearing? Does commenting online or projecting one’s image over Zoom constitute halakhic writing? Can one fulfill various mitzvot like the Megillah or parts of the Seder virtually?
Amid the great challenges posed by the novel Coronavirus, we find fascinating new developments and halakhic disputes coming to the fore as well. The changes to daily life, caused by advances in technology and exacerbated by social distancing, present both new realities and new halakhic questions. This debate over Zoom Seders lays bare several of these issues, all of which have yet to be fully resolved. Although there is widespread agreement on some of the practical rulings this year, the divergent reasoning employed by the various decisors makes it clear that tensions still remain and that we can expect these fundamental questions to continue rearing their heads for years to come.
[1] Additionally, Rav Eliezer Melamed of Yeshivat Har Bracha, who allows saying Kaddish and Barkhu over “virtual Minyanim” (a topic for another occasion!) does so on the basis that there is no prohibition of taking God’s name in vain in doing so, but not that there is any constituting of a Minyan in doing so.
Site Operations and Technology by The Berman Consulting Group.