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Parshat Vayishlach          16 Kislev 5766             December 17, 2005             Vol.15 No.13


The Prohibition to Smoke - Part One
by Rabbi Chaim Jachter

Anecdotal evidence strongly indicates that within the Modern Orthodox community it has become accepted not to smoke. Indeed, the Poskim whom the Modern Orthodox community regards as authoritative have unequivocally stated that it is prohibited to smoke. These authorities include Rav Aharon Lichtenstein, Rav Hershel Schachter, Rav Gedalia Schwartz, and Rav Aharon Soloveitichik. Moreover, one of Rav Moshe Feinstein’s leading Talimidim, Rav Efraim Greenblatt, rules (Teshuvot Rivevot Efraim 8:586) that smoking is prohibited. Indeed, three major Israeli Halachic authorities- Rav Chaim David Halevi (Teshuvot Asei Lecha Rav 2:1,3:18, and 9:28-29), Rav Avigdor Neventzahl (Asyah 5:261) and Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 15:39) - have written that smoking is prohibited.
Additionally, Rav Ovadia Yosef has concluded that it is prohibited to smoke (Halichot Olam 1:265-266, published in 1998). This contrasts with Rav Ovada’s earlier writings (such as Teshuvot Yechave Daat 5:39, published in 1983) in which he states that it is preferable to refrain from smoking due to the health hazards involved. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:58:6) writes, “I have never joined those who believe that it remains permissible to smoke [on any day] in our times.” Finally, Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat 2:76) writes (in 1981) that it is forbidden to begin the habit of smoking. Thus, according to Rav Feinstein, it is forbidden for one to smoke if he did not begin to do so before this Psak was given. We shall argue that, given current medical data, smoking is prohibited even according to Rav Moshe’s standards.
In this series I seek to explain why smoking is unquestionably forbidden for those Jews who study science and take its findings seriously. I am motivated to a great extent by the premature death of my father due to lung cancer (my father smoked cigarettes). I wish to insure that Bar and Bat Mitzva celebrants should have the pleasure and honor of their grandparents participating in their Simcha. I do not wish that others should share my experience of having gone to the Chuppah without my parents. I thank Rav Asher Bush whose writings on this topic helped me formulate this series.

Smoking on Yom Tov
It seems that Jews began to smoke in the seventeenth and eighteenth centuries, as this is when the Poskim begin to discuss its Halachic permissibility. Poskim did not discuss health concerns as it was not known at the time that smoking posed health concerns. Poskim did, however, debate the permissibility of smoking on Yom Tov.
The Torah (Shemot 12:16) permits Havara (kindling a fire) on Yom Tov, although Chazal (see Biur Halacha 502:1 s.v. Ein) forbid creating fire on Yom Tov. Thus, when we light something on Yom Tov, we light it from a preexisting flame. The Halacha forbids, however, burning incense on Yom Tov (Beitza 22b and Shulchan Aruch Orach Chaim 511:4). The reason is that the Halacha does not permit burning that is not “Shaveh LeChol Nefesh”, something that is customarily enjoyed by all. Burning incense is regarded as exotic and not included in the Halacha’s permission to engage in Havara on Yom Tov.
Poskim, in the seventeenth and eighteenth centuries began to debate whether smoking is considered Shaveh LeChol Nefesh. The Korban Netanel (Beitzah 2:10) forcefully argues that smoking is not Shaveh LeChol Nefesh. He notes that if one who is not accustomed to smoke were to begin smoking on Yom Tov, he would become ill and disoriented. This, he believes, demonstrates that smoking is not Shaveh LeChol Nefesh. The Chayei Adam (95:13) also prohibits smoking on Yom Tov. The Biur Halacha (511:4 s.v. Ein Osin), on the other hand, notes that many Acharonim (including the Chacham Tzvi, cited in the Shaarei Teshuva 511:5 and the Pnei Yehoshua, Shabbat 39b s.v. Omnam) permit smoking on Yom Tov. The Biur Halacha notes that those who rule leniently point to the fact that “now that many people are accustomed to this, it has become Shaveh LeChol Nefesh”.
Interestingly, the Biur Halacha cites the Shaarei Teshuva (511:5) who observes that some have the practice to refrain from smoking on the first day of Yom Tov but to smoke on the second day of Yom Tov (in Chutz LaAretz). This practice emerges from the Talmudic rule that one should be strict regarding a Torah matter and lenient regarding a rabbinic matter. Thus, since the observance of the second day of Yom Tov in Chutz LaAretz is currently only a rabbinic obligation, one may be lenient regarding an activity disputed by the Poskim. The Aruch Hashulchan (O.C. 511:11) criticizes this approach, arguing that this diminishes the dignity of the second day of Yom Tov. Indeed, Chazal strove to insure that we not take the observance of the second day of Yom Tov lightly (see, for example, Rambam Hilchot Chanukah 3:5).

Smoking on Yom Tov Nowadays
Prior generations, as is well known, adopted the lenient opinion in practice. However, Poskim today have noted the need to reexamine this matter in light of the fact that the percentage of people who smoke has dramatically reduced due to the great health risks involved with smoking. Rav Simcha Bunim Cohen (The Laws of Yom Tov p. 106 footnote 1) observes, “In the United States it should certainly be forbidden to smoke according to all opinions, as the overwhelming majority refrain from smoking.” Furthermore, he cites (page 108 footnote 3) Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:58:6) and Rav Shalom Yosef Elyashiv (cited in Sefer Hazikaron Mevakshei Torah 1:264) as ruling that today it is forbidden to smoke on Yom Tov. Indeed, Rav Zalman Nechemia Goldberg writes that it is prohibited to smoke on Yom Tov in our times (in a responsum printed in Pe’eir Tachat Eifer p. 52).
Additionally, Rav Moshe Shternbach (Teshuvot VeHanhagot 1:316) argues that since we rely on doctors’ opinions regarding many serious areas of Halacha (such as the need for a sick individual to eat on Yom Kippur), we should follow their opinions to refrain from engaging in smoking, which is merely a recreational activity. Rav Shternbach believes that the Acharonim who permitted smoking on Yom Tov would not have issued permissible rulings in the current climate where it is accepted that smoking poses a grave health hazard. See, however, the posthumously published volume of Teshuvot Igrot Moshe (O.C. 5:34) where Rav Moshe is presented as stating (in 1984) that it is difficult to proclaim cigarette smoking as prohibited on Yom Tov since millions of people throughout the world smoke.

Avoiding Danger Year-Round – VeNishmartem Meod LeNafshoteichem
The question, though, is whether smoking is forbidden at all times and not merely on Yom Tov. In general, the Halacha requires that we refrain from dangerous and unhealthy activities. The source for this requirement is Devarim 4:15 where we are instructed VeNishmartem Meod LeNafshoteichem, that one should carefully guard his soul. For a full discussion of this matter see the essay written by Dr. Shalom Buchbinder and my dear Talmid Dr. James Dipoce (Journal of Halacha and Contemporary Society Fall 2001).
The Halacha, however, seems to divide this requirement into two different categories. The Rambam (Hilchot Rotzeiach Ushemirat Nefesh 11:5) writes that Chazal prohibited engaging in numerous activities because they are dangerous. The Rambam also writes (Hilchot Deiot 4:1) that one should (Tzarich) avoid eating certain foods or engaging in certain activities that weaken the body. The activities listed in Hilchot Rotzeiach Ushemirat Nefesh appear to be strictly forbidden, while the activities that the Rambam discusses in Hilchot Deiot seem to be discouraged but not technically forbidden. Rav Waldenberg seems to understand that the activities mentioned in Hilchot Rotzeiach Ushemirat Nefesh are far more dangerous than those mentioned in Hilchot Dei’ot. Thus, while it is technically forbidden to drink from water that a snake may have placed his venom, it is not technically forbidden to overindulge in pizza even though it is not the healthiest of foods.
The question is in which of these two categories we place smoking. A possible manner to distinguish between the two categories is the litmus test suggested by the Gemara in a number of places (Shabbat 129b, Yevamot 12b, and Niddah 31b). The Gemara permits certain activities that involve some risk, “Since the multitudes have tread upon this matter, then [the Pasuk, Tehillim 116:6, that states that] ‘Hashem protects the foolish [applies].’” Rav Moshe Tendler (Beit Yitzchak 15:71) explains this Gemara as teaching that the Halacha has allowed reasonable members of society to define the parameters of the prohibition to engage in risky activities; Halacha permits an activity that reasonable members of society deem to involve a tolerable risk. Based on this standard, Teshuvot Chelkat Yaakov (Choshen Mishpat 31 in the new edition) writes that it is permissible to travel in an airplane or car even though there is some risk involved. For further explanation of this concept of Hashem protecting the foolish, see Rav J. David Bleich’s discussion of hazardous medical procedures (Tradition Fall 2003 pp. 76-100) and Rav Shlomo Cohen-Duras’s discussion of hazardous sporting activities (Techumin 22:120-126).
Accordingly, if smoking is included within the “Hashem protects the fools” principle, it should be avoided, but nevertheless cannot technically be categorized as prohibited. On the other hand, if it is not included within this principle, then it is unequivocally forbidden.

Conclusion
Next week we shall discuss the parameters of the “Hashem protects the fools” principle and see how the Poskim of the twentieth century applied it to smoking. We will conclude that it is undoubtedly prohibited for Jews who study and apply modern science seriously, to smoke.

 

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