Special Holiday Shiur

The Aveilut of Tisha be-Av
By Rav Moshe Taragin
 

 As previously noted (shiur entitled "The issur for an avel to attend a simcha"), the aveilut of Tisha be-Av itself is patterned, in scope and intensity, after the period of shiv'a which a person experiences immediately after the loss of a loved one.  To this end the gemara in Ta'anit (30a) composes a list of items which are forbidden on Tisha be-Av proper.  The list of forbidden activities is reminiscent of the week of shiv'a: skin ointments, leather shoes, sexual activity and Torah study.  At first glance, no disparity between this catalogue and individual aveilut is noticed. Closer inspection, however, reveals significant differences both in what is mentioned and what isn't cited in this register.  These differences might help focus upon the essence of Tisha be-Av aveilut and how it differs from individual aveilut.

 Though Torah study is listed as prohibited during Tisha be-Av, the beraita does include two significant qualifications.  One is permitted to study topics which sadden rather than provide joy to a person; studying from Iyov, Ekha and the somber prophecies of Yirmiya are permissible. Similarly, according to R. Yehuda's position, one is allowed to study unfamiliar sections of Torah.  He reasons that, given the unfamiliarity with these segments and the initial difficulty in comprehension, no tangible pleasure will be received (we certainly acknowledge this analysis:  Despite the incomparable relish we experience when we finally master a topic or text, we all undergo an initial struggle in grappling with that which initially appears unyielding).  As such, studying in this manner will not produce delight and isn't disallowed.  In fact, R. Yehuda's position is adopted by several Rishonim (primarily the Rambam Ta'anit perek 5).  To summarize: what is striking about the Tisha be-Av issur are its qualifications: studying lamentable sections as well as (according to R. Yehuda) studying unfamiliar sections.

 By stark contrast, the issur of Torah study for an individual avel is stated without any exemptions.  The gemara in Mo'ed Katan (21a) declares an issur for an avel to study Torah; no permits are allowed for learning sorrowful sections or unfamiliar topics.  Tosafot notices this discrepancy and shares with us the lifelong deliberations of Rabenu Tam. Initially, he prohibited an avel from studying these depressing sections, in light of the unconditional prohibition which the gemara in Mo'ed Katan imposes for a personal avel. Subsequently, though, as an old man, Rabenu Tam reconsidered and permitted this type of learning based upon the 'heter' which already exists on Tisha be-Av; why, after all, should they be different!!!

 In truth, if we accept this discrepancy and discriminate between personal aveilut and Tisha be-Av we must closely examine the source for the issur for an avel to learn Torah. The gemara in Ta'anit (30a) bases this halakha upon the principle that an avel may not experience enjoyment or happiness.  As Torah learning represents the highest state of happiness (pekudei Hashem yesharim mesamchei lev - see Tehillim 19), its study and the resultant joy is forbidden. In this respect, learning Torah can be compared, "le-havdil," to taking a bath or wearing leather shoes; all these experiences are proscribed because of the pleasure they will induce.  Given this view we would certainly concur with the gemara's ruling that Torah study which dispirits rather than rejoices, should be permissible.  The gemara, however, in Mo'ed Katan (15a) presents a second source for the prohibition of Torah study.  The gemara cites a prophecy given to Yechezkel (Yechezkel 24) that he will conduct himself as an avel and he will "sigh in silence (ha'anek dom)".  As part of his silence he cannot learn Torah (since silence is taken not just in the verbal sense but also in the overall experiential manner - a complete shutdown of creative or cognitive activity).  By ceasing to engage in Torah study, an avel punctuates the overall shutdown of human activity.  This pasuk provides a drastically different theme for the issur of Torah study.  Torah study is not banned because of the resulting emotions but INHERENTLY.  If Torah study were prohibited only to prevent pleasure, certain tragic segments would not be included within the issur.  However, the process of halting this study to insure complete 'silence' encompasses all areas of Torah.  Essentially there are two issurim which apply to an avel in the study of Torah.  Though, in general, they overlap, in some instances  only one clause applies.

 In fact, these two strands seem to reflect two distinct dimensions of aveilut.  On the one hand, aveilut is commonly associated with the privation of pleasure.  The principle of "ha'anek dom", however, seems to demand much more.  An avel must also actively display his PERSONAL SENSE of aveilut primarily by distinguishing and distancing himself from the rest of society.  This is accomplished to some degree by his 'code of silence'.  The texture of aveilut is not limited to refraining from delightful or pleasurable practices.  Indeed, it includes active displays of mourning to highlight the unique condition of the avel and to 'segregate' him.  The issur of Torah partakes of each of these two aspects.  It causes happiness and therefore is forbidden.  In addition, it reflects the normal and common intellectual and emotional 'routine' of a Jewish person and desisting from this exercise underscores the shutdown of the avel's lifestyle.

 Finally, to reflect  again on the discrepancies between Tisha be-Av and personal aveilut, one might question to what degree each of these 'aveilut factors' are equally relevant to individual aveilut and to Tisha be-Av.  Clearly, avoiding simcha is equally applicable to them both.  When it comes to the second strand - the active displays of aveilut - one calls into serious question its relevancy to Tisha be-Av.  After all, on Tisha be-Av we are all considered mourners and distinguishing one person is just as futile as distinguishing them all.  Though the 'issur simcha' might apply, the 'Nihugei Gavrah' (the active display of mourning) might not.  As a result, Torah on Tisha be-Av is only forbidden because of the simcha which is caused in its wake; hence, gloomy segments of Torah are permissible.  There is no purpose in outright silence and therefore Torah is not universally forbidden.  By contrast, Torah study for an individual avel is forbidden so that he may be silent and no distinction is drawn between joyous segments and mournful ones.

SUMMARY:
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 The discrepancy in the scope of the issur Talmud Torah might reflect a fundamental disparity in the aveilut of Tisha be-Av and that of an individual avel.  An avel must remain absolutely silent and hence cannot engage in any Torah study. On Tisha be-Av we must merely avoid rejoicing through Torah study; mournful segments may still be studied.

 Can this fundamental difference be discerned in additional halakhic incongruities between Tisha be-Av and individual aveilut?  We have focused above upon an issur which, though it applied to each, exhibited some slight differences.  A quick glance at the Tisha be-Av list provided by the gemara in Ta'anit (30a) demonstrates more dramatic discrepancies between the two.  Quite striking is the complete absence from the Tisha be-Av list of several aspects of individual aveilut.  Within the list of Tisha be-Av issurim there is no mention of not greeting or answering others, of not wearing tefillin, nor of turning one's bed upside down. All these however, apply to a personal avel.  Might this confirm an essential gap between the two experiences?

 The gemara in Mo'ed Katan (21a) describes the prohibition for an avel to don tefillin for the first three days of his aveilut.  Though no mention of tefillin is made regarding Tisha be-Av (and one might interpret this reticence as indicating its permissibility) the Rishonim debate this issue.The Maharam Mi-Rotenberg (Teshuva 51) equates Tisha be-Av and individual aveilut, concluding that on Tisha be-Av we refrain from tefillin.  By contrast, the Ritva in Ta'anit (30a) distinguishes between the two, accepting the simple reading of the gemara that there is no prohibition of tefillin on Tisha be-Av.  Presumably this distinction, as well, is a product of the aforementioned basic difference between Tisha be-Av and individual aveilut.  Though one may not rejoice during Tisha be-Av, no concept of publicly displaying aveilut entails. Tefillin is forbidden for an avel because Hashem told Yechezkel to 'bind his turban' as part of exhibiting his mourning.  In this respect it is aligned both in spirit and textually with the second facet of the issur Talmud Torah (they each appear in the same directive to Yechezkel) - they are each geared to actively demonstrate the state of aveilut. As such, on Tisha be-Av when no PERSONAL PUBLIC display is implemented this is not necessary and tefillin may be donned.

 In a similar vein, there is some discrepancy between individual aveilut and Tisha be-Av regarding whether one can leave the house.  The gemara in Mo'ed Katan (23a) rules that a mourner may not leave his house during the week of shiv'a.  A similar halakha does not appear regarding Tisha be-Av. Tosafot (Mo'ed Katan 21b), considering this difference, expresses some uneasiness about our practice of attending shul on Tisha be-Av.  "Why not", they ask, "pattern it exactly after personal aveilut?"  Their only answer is based on a parallel text which limits the prohibition of an avel to the first three days of shiv'a, which are the most intense.  Since Tisha be-Av is likened to the latter phase of shiv'a one need not be sequestered on Tisha be-Av.  Essentially, though, Tosafot feel that Tisha be-Av and personal aveilut are comparable.

 In theory, one might have concluded differently from Tosafot based upon the stated differences between the kinds of aveilut.  Leaving the house, it would seem, is not forbidden because of simcha.  This prohibition vividly highlights the requirement of an avel to publicly display his mourning and separate himself from the rest of society.  This obviously has no relevance to Tisha be-Av and therefore we may all leave our houses.

METHODOLOGICAL POINTS:
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1. Oftentimes comparisons between halakhot are incomplete. These 'equations' should be carefully studied for their discrepancies.
2. These disparities can be of two forms.  Sometimes there exist elements which do not apply to each of the compared halakhot.  Alternatively, there are aspects which apply to each halakha but to different degrees.  Though Torah study is assur on Tisha be-Av as well as during shiv'a, certain exceptions might apply to Tisha be-Av and not during shiv'a.
3. Are these differences incidental or do they reflect a fundamental distinction?

AFTERWORD:
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1. This article addresses primarily the treatment of Tisha be- Av at the level of the gemara and Rishonim.  I suggested that at this level, while simcha is prohibited, there is no attempt, at the private level, to actively display aveilut through the standard acts which a personal avel engages in. Clearly, at the public level, aveilut is very much projected. In addition, by and large halakha has developed many displays of aveilut EVEN at the private level.  The Shulchan Arukh rules that we may not greet each other on Tisha be-Av.  Indeed some aspects of turning over one's bed also applies to Tisha be-Av.  Again at the level of the gemara most of these aren't applied to Tisha be-Av.
2. See the Me'iri and Mikhtam to Mo'ed Katan 15 for a clear formulation of the issur Talmud Torah.  Each attaches the issur not just to the  production of simcha but as part of an attempt to create utmost silence.  Compare to the pasuk of Va- yidom Aharon (Vayikra 10:3).
3. See the Rambam in Hilkhot Ta'anit 5:11 who distinguishes between tefillin shel yad and shel rosh on Tisha be-Av.  In light of the aforementioned analysis, how might we explain the difference?
4. I assumed that donning tefillin was not prohibited because of simcha but to display aveilut.  See Rashi in Sukka (25) who provides a slightly different view.
5. See also the 'Ritz Gei'ut' (a Geonic work) who quotes Rabenu Hai Gaon that leaving the house is prohibited for an avel because of the simcha it will produce.  Whoever mourns Jerusalem will be zokheh to share in the joy of its rebuilding (Ta'anit 30b).

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