The Prohibition for an Avel to Wear Tefillin
Several gemarot (Berakhot 11, Ketuvot 6 and Sukka 25) cite a statement of Rav identifying the one mitzva that an avel (mourner) is excused from – the mitzva of tefillin. In a famous passage in Sefer Yechezkel (chapter 24), Hashem instructs the prophet to deliberately demonstrate that he is not adhering to the rules of mourning. He is instructed to wear his “pe’er,” literally “magnificence,” a reference to tefillin. Cleary, the implication is, that while HE is allowed to don his tefillin, other mourners may not. What makes tefillin unique in that it is the only mitzva from which an avel is excused? An onen, who is preoccupied with attending to the burial of the deceased, is excused from mitzvot based on the principle of osek be-mitzva patur min ha-mitzva. But why should an avel be excused from tefillin if he is fundamentally obligated to perform all other mitzvot?
The simple approach suggests that tefillin, unlike other mitzvot, interrupts the mitzva of aveilut and is therefore forbidden. Since an avel must exhibit mourning, he may not wear tefillin, which create a “majestic” experience of pe’er. Typically, the Chakhamim can suspend a mitzva de-oraita. In this case, to generate aveilut (a Rabbinic institution), they ordered the suspension of the mitzva of tefillin. This is the position of the Tosafot Rabbenu Yechiel in his comments to Mo’ed Katan (21a).
Several comments of Rashi suggest a different concern: Tefillin is not suspended merely to allow an avel to preserve the mentality of mourning and prevent the experience of pe’er. Only SIMCHA is forbidden for an avel, not feeling grand or magnificent. In fact, the grandeur of tefillin is spiritual in nature and should not constitute a clash with aveilut. Instead, the avel is excused from tefillin because he cannot ACHIEVE the requisite experience of pe’er central to tefillin performance. In an earlier shiur [Maintaining Tefillin Awareness], we discussed the mental/emotional layer of tefillin as essential to the mitzva performance. In addition to mere mechanical donning, tefillin demands a corresponding inner state of expanded religious consciousness. Since the avel is incapable of achieving that state, he is excused from tefillin. As Rashi summarizes (Berakhot 11a), “Since an avel is dejected and rolling in his personal [emotional] dust, he cannot achieve [the state] of pe’er.” Similar sentiments are voiced by Tosafot in Mo’ed Katan (21a).
Apparently, the exemption of tefillin is derived from the word pe’er, and not the general instructions delivered to Yechezkel. As tefillin are referred to as pe’er, this inner feeling is central to the mitzva performance. Since an avel is incapable of achieving pe’er, he is excused from the mitzva.
Rashi in Ketuvot (6b) augments this idea by asserting that not only is an avel EXEMPTED from the mitzva of tefillin, he is also FORBIDDEN from performing it. The unique kedusha of tefillin mandates mental and emotional focus, and a dejected avel spoils the kedusha of tefillin. Either way Rashi maintains that the suspension of tefillin for an avel is not based on the laws prohibiting an avel from experiencing or expressing joy or magnificence. Instead, they stem form a unique hazard that the avel poses to the Tefillin.
Several interesting nafka minot emerge from this debate. Typically, the “term” of an avel is truncated based on the principle of miktzat ha-yom ke-kulo – expressing aveilut for a part of the day is equivalent to expressing it the entire day. Most famously, the “shiva” seven-day aveilut period concludes a few minutes into the seventh day, after part of the day has been experienced as an avel. Does this principle apply to an avel and tefillin? In other words, is the prohibition to wear tefillin limited to the early part of the day based upon the rule of miktzat ha-yom ke-kulo?
The gemara in Mo’ed Katan (21a) cites a machloket between R. Eliezer and R. Yehoshua regarding whether an avel is prohibited to wear tefillin for two days of his aveilut or for three days. Commenting on the Rif, who limits the prohibition to one day, the Rosh claims that the Rif agrees with R. Yehoshua that - fundamentally - the prohibition lasts two days, but since the principle of miktzat ha-yom ke-kulo truncates the second day, practically speaking, tefillin may be worn on the second day and are only forbidden on the first day. Other Rishonim (see the Ran in Sukka) do not assume that Rif implements miktzat ha-yom ke-kulo regarding this prohibition. Perhaps they disagree about the NATURE of the prohibition. If the prohibition stems from aveilut concerns – not to disrupt the mourning with the magnificence of tefillin – perhaps the classic rule of miktzat ha-yom should apply, as it does to all aveilut practices. If, however, tefillin is suspended because the avel, in his state of dejection, cannot achieve the necessary experience of tefillin, we would not apply the aveilut-based principle of miktzat ha-yom ke-kulo.
A second important question surrounds tefillin for an avel who is not suffering the despair typically associated with the first days of aveilut. Tosafot (Moed Katan 21a) claim that tefillin may be worn on Tisha Be-Av, whereas the Rosh in Ta’anit cites the Maharam Mi-Rotenburg, who forbade this. Perhaps the debate surrounds the nature of the tefillin exemption for an avel. If the tefillin are viewed as a disrupter of aveilut and forbidden similar to other aveilut disruptions, the prohibition should apply to Tisha Be-Av; all the classic prohibitions of personal aveilut apply on Tisha Be-Av. Alternatively, if an avel is exempt from tefillin in order to protect tefillin from his sorrowful impact, perhaps the Tisha Be-Av experience does not present that danger. Since Tisha Be-Av constitutes collective mourning and is also based on remote events, perhaps Tisha Be-av does not instigate the experience of dreadful sorrow which threatens the tefillin. Even though a Jew’s halakhic status on Tisha Be-Av mirrors that of an actual avel, his EMOTIONAL state isn’t as tumultuous, and tefillin therefore do not have to be protected.
A similar question arises regarding a shmu’a kerova, the state of aveilut upon receiving information about a recent death and burial. Halakha demands the launch of classic aveilut in this case, but the issue of this avel wearing tefillin is debated (see the Beit Yosef, Yoreh Deah 320). An avel responding to a report of death may be obligated to obey the classic rules of aveilut, but he may not experience the raw pain and dejection of a classic avel who experiences the death and burial firsthand. If an avel is prohibited from wearing tefillin as an expression of elegance that disrupts his aveilut, perhaps this person should also be forbidden to wear tefillin. Alternatively, perhaps his mourning is not as intense and therefore does not endanger tefillin in the manner that a classic avel does, and he may therefore be obligated to wear tefillin.
A similar question arises in a third scenario, in which a person passes on Yom Tov and the entire aveilut is delayed until after Yom Tov. Should an avel wear tefillin when the aveilut begins after the chag? Most authorities maintain that he should (see Pri Megadim 548), but at least one opinion claims that he should not (see Kenesset Ha-Gedola, Yoreh De’ah 388). These positions may also be debating whether tefillin is prohibited for an avel so as not to disrupt his aveilut or in order to protect the tefillin. When the aveilut commences after Yom Tov, the full intensity of the first day of aveilut emerges. However, the PERSONAL sorrow and dejection of the mourner may not be as potent given the time delay.
Interestingly, this question of why tefillin are suspended for an avel may help solve an intriguing linguistic issue. The original statement of Rav claimed that an avel is chayav in every mitzva except for tefillin. Many question the sweeping generalization that an avel is obligated in every mitzva, since he is forbidden from studying Torah. Assuming that an avel does not wear tefillin for tefillin-related reasons (and not to protect the integrity of the avel’s mourning), the distinction between Torah and tefillin is clear. An avel is ALWAYS obligated to study Torah, but to protect his aveilut from intrusions of Torah-based simcha, he is excused from Torah study. There is no INTERNAL reason that he is EXEMPT from Torah. His aveilut responsibilities simply override his mitzva to study Torah. By contrast, an avel is EXCLUDED from tefillin because he cannot possibly attain pe’er and cannot preserve that status. He is truly EXCUSED from the mitzva of tefillin. His exemption is not an OVERRIDE, but rather an INTERNAL EXCEPTION. The statement that an avel is obligated in every mitzva – including Torah - but with the exception of tefillin – makes sense if gauged at a fundamental and not a practical level.