Rosh ha-Shanah 5771/ September 9-10, 2010
the weekly Torah reading by the faculty of
Halakhic strictures observed during the Ten Days of Repentance
Rabbi Oren Duvdevani
Department of Talmud
The Shulhan Arukh contains a rule of Halakhah which demands our attention: “Even someone who does not take care about not eating the bread of Gentiles should take care not to eat it during the Ten Days of Repentance” (Orah Hayyim 603.1). Any intellectually alert person ought to feel discomfort on reading these words. Why precisely during the Ten Days of Repentance should one take care regarding something which is not of particular concern throughout the rest of the year? If a person tends to follow a certain leniency, why should these days be different? If a person believes in a strict approach, consistency would dictate that he be strict throughout the entire year.
In order to truly appreciate the significance of this rule one must understand the origins of this halakhah. It comes from the Jerusalem Talmud, Shabbat 1.3, where we find that Rabbi Hiyya instructed Rav that even if he does not usually eat unsanctified food (hullin) in a state of purity, he should do so during the Ten Days of Repentance. Tur comments on this (Orah Hayyim 603):
Rai Hiyya commanded Rav: "If you can see
your way to eating unsanctified food in a state of holiness all year round, do
so; if not, then do so at least seven days of the year." About this the
Ravyah (R. Eliezer ben Yoel Halevy, born c.
Tur’s remarks must be read closely. He ties the matter at hand to another rule, namely the obligation which applies to everyone to purify themselves for the Festivals.  The very act of applying this obligation and extending it to the days of the New Year is itself an innovation. If we do not accept this innovation, why were the two days of New Year was not included in Rabbi Hiyya’s statement in the Jerusalem Talmud? Or Zarua (Part II, Hilkhot Rosh ha-Shannah 257) views 'seven days' as evidence of the ancient practice of fasting on the New Year, therefore the days of Rosh Hashanah and the Day of Atonement are not included in the computation.
Another point is the connection the Tur makes between R. Hiyya's command to Rav and the custom to abstain on the Ten Days of Repentance from eating the bread of gentiles, based on the words of Ravyah. This is how we understand the Tur: in our time we are all considered to be impure due to contact with the dead, hence eating non-sanctified food in a state of purity is no longer practiced.  How then could the words of the Jerusalem Talmud be given expression? The solution according to the Tur is to put the words of the gemara into practice by taking care to avoid another sort of impurity: not eating the bread of gentiles.
We can point to other rulings by later halakhic authorities that show a similar inclination. For example, the assertion by Kaf ha-Hayyim that during the Ten Days of Repentance one should not eat meat or fowl whose kashrut was questionable and had to be decided upon by rabbinical ruling (Orah Hayyim, par. 608.31),  or the assertion by Maharil, actually presented by Rema in Shulhan Arukh, that a person should not be ostracized, a ban put on him/her, or made to take an oath in court during these days (par. 602). Recommendations that greater piety and strictures be observed during the Ten Days of Repentance were greatly expanded by the later rabbinic authorities. Resp. Mahazeh Abraham rules that during the Ten Days of Repentance one should avoid luxuries (Part I, par. 36), and Baer Heitev says that one should abstain from sexual intercourse during the Ten Days of Repentance (Orah Hayyim, 240.4). These restrictions make our initial question all the more poignant.
One way of approaching this question would be to say that the change of behavior during the Ten Days of Repentance is supposed to lay the foundation for a change later on. The Ten Days of Repentance are not only days of judgment, but days of renewal; this is the season of the New Year, and these days give us a chance to change our ways even if we have doubts about being able to persist in them.
Underlying such an approach is the unique point of view of the Torah regarding the concept of time. Unlike other nations, and certainly unlike the peoples of the ancient world, the Torah and the Sages emphasize that time is not linear, rather circular and cyclical.  This is the point of the name tekufat ha-shannah, or “the turn of the year,” with which the Torah dubs the period of the High Holy Days and Tabernacles. Rashi comments on this use of the expression “the turn of the year,” saying that it is when the year comes back to a new beginning. The beginning of the new year is when the old year comes full circle. While there is rejuvenation and progress, these are none other than a repetition of what was already, closing and completing the circle. The cyclical view calls for viewing the natural and the spiritual alike from a circular point of view, including what might be called “spiritual declines.” As Maimonides wrote in Guide for the Perplexed (Part III, ch. 36, Friedlander ed., pp. 478-479):
It is clear that repentance is likewise included in this class … For it is impossible for man to be entirely free from error and sin… If we were convinced that we could never make our crooked ways straight, we should for ever continue in our errors, and perhaps add other sins to them since we did not see that any remedy was left to us. But the belief in the effect of repentance causes us to improve, to return to the best of the ways, and to become more perfect that we were before we sinned. For this reason many things are prescribed for the promotion of this very useful principle: e.g., confessions and sacrifices for sins committed unknowingly, and in some cases even for sins committed intentionally, and fasts, and that which is common to all cases of repentance from sin, the resolve to discontinue sinning. For that is the aim of this principle. Of all these precepts the use is obvious.
The essence of Creation itself, of human life, is a cyclical pattern of rising from having fallen into sin, a never-ending circle of repentance in which precisely this cyclic motion is what brings us closer to perfection, to the Holy One, blessed be He. This approach seems to underlie the bold remarks made by Rabbi Kook in Orot ha-Teshuvah (ch. 5.6):
Without repentance and the peace and security that it provides, a man would never find rest and the spiritual life could never develop. The ethical sense in a person demands justice, the good, and completeness—but how distant from Man is spiritual wholeness! How may a man strive for what is not in his capability at all? For this reason repentance is built into the nature of Man, and that is what makes him complete. Even if a man always stumbles, thereby impairing justice and ethics, it does not disturb his completeness, because deep within him is the constant yearning for wholeness. This desire for wholeness is the basis of Teshuvah, which always conducts a man's path in life and brings him to completeness.
A close reading of these words makes us aware how truly innovative an idea they convey. Here Rav Kook undermines the generally accepted notion of repentance as the correction of wrong. The normal state might seem to be the absence of sin, and consequently also the absence of repentance; but Rav Kook thinks otherwise. In his opinion, repentance is part of the nature of the world and the nature of man. All of existence, including man, was created in a pattern of ups and downs, and repentance is a process that takes place and is intended to take place at all times.
These are words of cardinal importance. A person aspires towards perfection, knowing that there will be failings along the way. The New Year, the turn of the seasons, is a point in time in this process of renewal. This finds expression, in my view, in the striking difference in the language used in Parashat Phinehas to describe the additional offering of the New Year as opposed to the additional offerings of the other festivals. With respect to the other festivals the Torah uses the Hebrew root k-r-v in describing the offerings, but with respect to the offerings of the New Year it uses the exceptional root `-s-h (Num. 29:2). The authors of the midrash could not ignore this exceptional use of language, and said (Leviticus Rabbah, ch. 29 [Freedman ed., p. 379]):
R. Tahlifa the Caesarean said:
In connection with all other additional
offerings it is written, “And ye shall offer,” while in connection with
the present one the expression used is, “And ye shall make a burnt
offering.” How is this to be
explained? The Holy One, blessed be He,
in effect said to
Thus we can say that the strictures observed at the beginning of the year represent an attempt to turn over a new leaf. A person who had been in the practice of eating bread baked by gentiles, at the beginning of his/her creation anew should attempt to improve and not eat such bread; even if such attempts have thus far not proven successful, a new attempt should be made on the chance that this time one might succeed in persisting in the better way. Despite our shortcomings, we nevertheless are obliged to aspire to perfection. 
Even with this proposed answer, a difficulty still remains. Pausing a moment to look at the subjects in regard of which we found customs of greater strictness during the Ten Days of Repentance, we observe that a temporary approach of greater strictness during the Ten Days of Repentance is actually likely to set up stumbling blocks further on throughout the year. The following is noted in Arukh ha-Shulhan (Orah Hayyim 705.2):
It seems to me that to accept more stringent behavior applies only to matters which are not prohibited by law, and the stringency is therefore but finer behavior (hiddur) and proper for these days. But if the issue is something which is prohibited by some authorities and people generally accept the more lenient view, such as using hadash (wheat made into grain before the date of the Omer) out of Israel and eating meat which had a lesion (sirkha) on the lung, one should not take the more stringent view during the Days of Repentance, because this shows acceptance of that view and how may one return afterwards to the lenient opinion?
The author of Arukh ha-Shulhan apparently contended with the difficulty which we pointed out above, since the very idea of a temporary strictness also appeared problematic to him. 
I believe we might answer these questions by developing the
argument in a direction taken in one of the basic books on customs for the High
Holy Days, Elef ha-Magen by R. Meshulam Finkelstein of
As Rabbi Moses Cordovero wrote in Seder Avodat Yom ha-Kippurim, if one takes special care only during these days, it is a proper thing to do, even though one might not carry on with such piety [Heb. hassidut] afterwards. He gives a reason for this, namely that the Holy One, blessed be He, sits on the Throne of Mercy and behaves benevolently [Heb. hassidut] during these days… Therefore it is right and proper for us to behave as piously as we can. (603.2)
According to Rabbi Moses Cordovero (1522-1570), such behavior is not intended to influence our standing in judgment or to be part of a process of repentance. Rather, it is a sort of imitatio Dei; during this period we act better than required by the letter of the law, and hope that G-d will be benevolent in turn and not call us to task with the full force of the law, but temper justice with mercy.
Above we mentioned the cyclic notion of time, implying that
a fleeting period of blossoming or improvement has its place and value in the
world of worshipping G-d. For many of us these days are a
All this has a practical impact on the nature of the days of repentance. During this time we should aspire to the maximum in all spheres of life, although we know we cannot sustain such maximal behavior. Thus we are faced with a double challenge. On the one hand, we hope to persist throughout the year in the goals which we have set ourselves the previous year, full of hope and aspiration that in the coming year we will be able to achieve goals which previously were beyond us. On the other hand, we should not be put off from resolutions which we know in advance that we will not be able to live up to entirely. For it is the experience of the pursuit of a higher level itself which is important. We move on from the Ten Days of Repentance with sweet memories of a time in which we felt a closeness to G-d, remembering throughout the entire year how for just ten days we lived in a state of spiritual elation, all our longings focusing in a single direction, towards closeness with G-d. This experience can refine the soul through the long drab days of the year.
Tractate Rosh ha-Shannah 16a.
Halakhic authorities differ as to whether this law of the gemara
is applicable in our time, there being no
 Cf. Magen Avraham, Orah Hayyim 603, who espoused the view that one ought to be strict in this regard in our day as well. However many authorities disagree with him.
 Also cf. Matteh Ephraim 603, by Rabbi Ephraim Zalman Margaliyot of Brodt.
 This is undoubtedly the reason the Jewish calendar is lunar and not solar, and specifically explains the significance of the blessing of the moon; cf. Takanat ha-Shavin by Rabbi Zadok ha-Cohen of Lublin, who wrote on this extensively in sections 5-6.
 It seems one could suggest another explanation from a different angle. In one of his well-known sermons, Rabbi Shneur Zalman Borokhovitz of Liady (the Alte Rebbe), author of Tanya, wrote: “It is well-known that Elul is the season revelation of the thirteen attributes of mercy… This can be understood through the parable of a king, who is met by the city folk who go out to greet him in the countryside before his arrival in the city. Then, whoever wishes may go out and greet him, and he receives everyone graciously, smiling on all. And when he comes into the city, they walk after him” (Alte Rebbe, Likutei Torah, Parashat Reeh, 32.1). In this season one can feel especially close to the Holy One, blessed be He, and in this season the chances of succeeding are greater since these are days when the world is graced with divine abundance by virtue of which we are capable of doing things which at other times of the year might be too difficult for us.
 As we said, Tur made a transition from the gemara’s remarks about eating unsanctified food in a state of purity to the subject of eating bread baked by gentiles. Tashbetz (par. 117) challenged this, since there is no proscription against eating unsanctified food in a state of impurity, only a positive act in eating in a pure state, but this is not the case with bread baked by gentiles. Beit Yosef retorted by saying, “This is no argument, since it is not clearly forbidden, rather it is a matter of custom, since when he takes care not to eat it his intention is only to take care during those days alone, for it is patently clear that it is not forbidden throughout the rest of the year” (Beit Yosef, Orah Hayyim 603). It is clear from these remarks that he does not concur with Arukh ha-Shulhan.