Halachic Musings

By Rabbi Yair Hoffman
It is May 30, 1959. Rav Moshe Feinstein, zt’l, pens a response to a rebbe who is teaching in Rav Binyamin Kamenetzky’s Yeshiva of South Shore (I.M. E.H., Vol. I #96). The rebbe, Rav Shmuel Dishon, had asked Rav Moshe about a certain artist who once had an excellent reputation, having made a number of musical compositions that captured the hearts of the Torah community. Unfortunately, the artist had gone astray. Is it permitted to listen and sing the tunes that he had composed while he was still “fully kosher”? The halachic issue is that of giving a “good name” to evildoers, which would violate a principle found in the Talmud (Yuma 38b.)
Rav Moshe, zt’l, rules that there is nothing wrong with doing so for tunes that he had composed while he was “fully kosher.” For tunes that he had composed after his fall, Rav Feinstein writes, “It is likely that we should not be stringent, since tunes do not essentially have to do with matters of kedushah, but b’nei Torah and ba’alei nefesh should avoid it.”
Rav Feinstein bases his ruling on the fact that some authorities (see Meleches Shlomo on Maaser Sheini) are of the view that the Yochanan Kohein Gadol who had promulgated many decrees in regard to Maaser Sheini was, in fact, the same Yochanan Kohein Gadol who eventually became a Sadducee. These decrees, however, were made while he was still “fully kosher.”
Rav Feinstein also addresses the fact that Rambam specifically points out that this was not the Yochanan Kohein Gadol who became a Sadducee. He further writes that the composition of tunes is essentially a matter that has nothing to do with a davar sheb’kedushah and should be no different from inventions of machinery or medicine.

Those That Forbid

Rav Menashe Klein (Mishneh Halachos Vol. VI #108), without mentioning the view of Rav Feinstein, comes to the opposite conclusion and writes that it is entirely forbidden to enjoy these tunes–even those composed while he was still “kosher.”
Rav Moshe Stern (Be’er Moshe Vol. VI #74 in the notes), the Debreciner Rav, also forbids the matter and even writes that it is forbidden to sell tapes of such individuals. Indeed, Rav Stern writes that one must investigate a person who would stoop to sell such tapes. Interestingly enough, Rav Stern also does not mention the more permissive view of Rav Feinstein on the topic.
And while most readers of this article are not Skver chassidim, the halachic publication of the Skver Rebbe’s kollelim (Zera Yaakov Gilyon #26) cites the more stringent view of Rav Moshe Stern in their halachic conclusions–ignoring entirely the view of Rav Feinstein.

Once Again An Issue

While this debate, at first glance, may seem to center on a somewhat esoteric area of halachah, very recent revelations in other news have brought this halachic matter to the fore once again. What is the status of eiruvin and other works and rulings of those that have gone astray?
The issue therefore calls for a closer examination of the sources that are cited in order to understand the halachah. The stringent view compares the cases to a sefer Torah that is written by apikorsim, which should be placed in geniza and not used. Rav Feinstein, however, cites the Pischei Teshuvah in Yoreh Deah (281:2), who rules that if the author of the sefer Torah became an apikores after he wrote the Torah, there is nothing wrong with the sefer Torah.
This latter point is highly significant and it is somewhat wondrous how the stringent authorities could have overlooked this Pischei Teshuvah.
Rav Feinstein further writes that the “giving a good name” would only refer to the period of time that he was acting properly and correct, and thus would not be considered a halachic problem. Rav Feinstein also distinguishes between matters of kefirah, religious infidelity, and matters of personal failing in the area of unseemly activity.
It is not that the personal failing in unseemly activity is not problematic. The Shach writes (Y.D. 251:1) that someone who regularly fails in one area of halachah is deemed an avaryan. The Netziv (She’eilos uTeshuvos Meishiv Davar Vol. I #8) has a responsum that deals with a sofer who was not careful in his halachic observance and concludes that the tefillin that he had written are still kosher, but do require examination.

Timing Is Crucial

Getting back to how the Be’er Moshe and Mishneh Halachos might address the aforementioned Pischei Teshuvah, one can only assume that they questioned how it would be possible to ascertain exactly when the musician went astray. The answer to this question would lie in the notion of a chezkas kashrus (see Kerisus 12a)–every person begins with the status that he is considered kosher until the moment when something new has clearly developed. Thus, even according to the stringent view, one would have to research when the problems first began and only stay away from that which developed after that time.
Timing would also be an issue even according to the responsum of the Netziv–as one would have to ascertain what tefillin the sofer may have written after he became lax in his halachic observance. Indeed, even Rav Feinstein’s permissive view did not apply to b’nei Torah and ba’alei nefesh–timing would therefore be an issue for Rav Feinstein’s view as well.
It is also clear that Rav Feinstein’s lenient view was predicated upon the idea that music is essentially something that does not directly relate to davar sheb’kedushah.
What about Torah writings, however? This issue is also somewhat nuanced, as it depends upon how we understand the issue of Elisha ben Avuyah mentioned in Rav Feinsteins’s responsum as well. Did all the Torah of Elisha ben Avuyah mentioned in the Talmud strictly come from the time period before he “went astray”? Rav Feinstein understands this to be the case, but other authorities explain otherwise.
One last thought. Might the halachah here be different if we were to view the fallen artist, or other person under discussion, as having been subjected to the throes of mental illness or addiction? While the subject is yet under these influences and has neither received treatment nor recovered, there would be no distinction. But if it was determined that the “fall of the artist” was due to mental illness–and he had subsequently recovered–might the music of that era be permitted, even for b’nei Torah?
It is also important to note that in all this we must not lose sight of the enormous chillul Hashem and damage to human beings that surround such questions. This also includes damage to the innocent family members of those who have gone astray. May Hashem prevent such devastation in the future and may we see only yeshuos and nechamos.
The author can be reached at Yairhoffman2@gmail.com.

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