Shabbat 148

Interestingly, though all three of these practices are generally assumed to be forbidden on account of the concern that those who do so may be prompted to fix or make a musical instrument, Rashi (both on Shabbat 148b and Beitzah 30a) notes that the concern for clapping was also due to the fact that those accompanying mourners would clap their hands and chests (see Mishna Moed Katan 3:9, 28b).

However, as the Gemara points out,וקא חזינן דעבדין – ‘we see that [people] do this’, ולא אמרינן להו ולא מידי – ‘and yet [halachic leaders] say nothing to them’. Given this observation, the Gemara introduces us to an exceedingly important principle of halachic leadership: מוטב שיהו שוגגין ואל יהו מזידין – meaning, ‘better that people do certain things unwittingly [in ignorance], than [trangress] deliberately [by ignoring a law that they have been told about]’.

Before proceeding, it should be noted that there is considerable debate about how far the principle of מוטב שיהו שוגגין ואל יהו מזידין applies (although the general consensus is that it does not apply to an explicit Torah law). Nevertheless, what this principle does teach us is that a halachic leader needs to be aware – as best they can – of how those whom they halachically instruct will receive halachic instruction, such that they should instruct those whom they think will adopt greater halachic observance, and they should not (yet) instruct those whom they think are not (yet) in a place to do so.

With this in mind, I would like to turn to the Responsa of Rabbi Asher Weiss (Sh’ut Minchat Asher 3:24) where he is asked by a questioner about the appropriate halachic response to the fact that clapping and dancing on Shabbat and Yom Tov is now commonplace in many Chassidic [and non-Chassidic] communities, firstly because I think that all of Rabbi Weiss’ responsa are masterclasses in rabbinic decision-making, and secondly because this particular responsum is particularly enlightening.

Rabbi Weiss begins his responsum by referring to the above-mentioned Mishna, and he then cites the Rema (Orach Chaim 339:3) who addresses the question of clapping and dancing on Shabbat (and Yom Tov) and whose remarks are the basis for much of his examination:

“And that which they clap and dance nowadays and [halachic leaders] do not protest, this is due to the principle of מוטב שיהו שוגגין ואל יהו מזידין. And there are those who say that nowadays this is all permitted since we are no longer proficient in making musical instruments and therefore the decree of ‘maybe they might fix a musical instrument’ no longer applies as this is no longer something that many people do, and it seems that this is why it has become customary to be lenient about all these things [of clapping and dancing].”

In his explanation of the Rema, Rabbi Weiss points out that two reasons are provided as to why halachic leaders have not historically protested about clapping and dancing on Shabbat and Yom Tov. The first, מוטב שיהו שוגגין ואל יהו מזידין, teaches us that the silence of such halachic leaders is not because they regard such practice as being permitted, and that ideally it should not be done. However, according to the Rema’s second explanation (which is based on Tosfot Beitzah 30a), it seems that clapping and dancing on Shabbat and Yom Tov is, in fact, nowadays perfectly permissible.

However, this second answer raises a significant concern for Rabbi Weiss due to the principle (see Beitzah 5a) that rabbinic decrees are not annulled even when the concern/s that prompted their initial promulgation are nowadays highly improbable, and this leads Rabbi Weiss to suggest that the original rabbinical decree was, in fact, a broader decree against playing musical instruments on Shabbat and Yom Tov (which was why there was a concern for fixing musical instruments), and that clapping and dancing were derivatives of this original decree. Given this, since the concern of ‘maybe they might fix a musical instrument’ no longer applies, the secondary decree of clapping and dancing is nowadays permitted, while the overall rabbinic decree against playing musical instruments on Shabbat and Yom Tov remains valid.

Having offered this bold interpretation, Rabbi Weiss then offers a further justification for the practice of clapping and dancing on Shabbat and Yom Tov. Basing himself on numerous sources (see for example Magen Avraham on OC 559:1 quoting Maharik) which record how it was customary in many communities to clap and dance on Simchat Torah, Rabbi Weiss argues that it is halachically permitted to clap and dance on Shabbat and Yom Tov for the sake of a mitzvah, and he even cites a tradition from the Geonim that this decree was never originally applied to mitzvah activities. Moreover, Rabbi Weiss also initially offers further support for this thesis from the Mishna (Ta’anit 4:8, 26b) which states how it was customary on Tu B’Av (which we will be celebrating this week) and Yom Kippur for maidens to go out and dance in the vineyards where many would meet their prospective husbands. However, as he points out, this source is not compelling for his argument as the practice of going out to the vineyards on Tu B’Av and Yom Kippur likely ceased prior to the decree against clapping and dancing being established.

Though Rabbi Weiss notes how the Mishna Brura (OC 339:8) and others (eg. Shulchan Aruch HaRav, Pri Megadim) limit the practice of clapping and dancing only to Simchat Torah, Rabbi Weiss believes that significant justification can be provided for permitted clapping and dancing for all mitzvah celebrations, and given this, he ends his responsum by stating:

“It would appear, based on my humble opinion, that what I have written is [a satisfactory answer] to justify the custom in Jewish communities [of clapping and dancing on Shabbat and Yom Tov]… Custom is greatly valued [within halacha]… and [our Sages] have already ruled that custom can annul halacha. [Moreover, clapping and dancing] is an ancient custom as stated by Tosfot and in the words of the Rema, and especially in more recent generations where [clapping and dancing] has become commonplace in all Chassidic communities, they have [halachic basis] on which they can [justifiably] rely. Nevertheless, [as our Sages say], ‘every river has its own course’, and each person should behave in accordance with the custom of their place and their community.”