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Adding "Ha-melekh Ha-kadosh" and "Ha-melekh Ha-mishpat"

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Translated and adapted by Rav Eliezer Kwass
[The original hebrew, appearing in Daf Kesher #150, Yom Kippur 5749, vol. 2, pp. 126-130, is a student summary of a shiur given on Shabbat Parashat Shoftim 5748.]
            The shift to "Ha-melekh ha-kadosh" and "Ha-melekh ha-mishpat" in the text of the Amida during the Ten Days of Repentance has its roots in the Talmud.  This shiur investigates the nature of these additions to prayers through a discussion of the primary talmudic source.
            The gemara (Berakhot 12a) says:
"Rabba son of Chanina Saba said in the name of Rav: During the whole year the text of prayer is 'Ha-E-l Ha-kadosh,' 'Melekh ohev tzedaka u-mishpat' (according to Rambam, 'Ohev tzedaka u-mishpat'), whereas during the ten days between Rosh Hashana and Yom Ha-kippurim it is 'Ha-melekh ha-kadosh' and 'Ha-melekh ha-mishpat.'  R. Elazar said: Even if one says 'Ha-E-l Ha-kadosh' he fulfills his obligation, for it is written, 'The Lord of Hosts is elevated through law and the Holy God (Ha-E-l ha-kadosh) is sanctified through tzedaka.'  When is the Lord of Hosts elevated through law?  In the ten days between Rosh Hashana and Yom Kippurim - yet He is still referred to as 'Ha-E-l Ha-kadosh'.
What do we rule?  Rav Yosef said: 'Ha-E-l Ha-kadosh' and 'Melekh ohev tzedaka u-mishpat.'  Rabba said: 'Ha-melekh ha-kadosh' and 'Ha-melekh ha-mishpat.'  The halakha is like Rabba."
            The Rishonim dispute how to understand the argument between Rav and R. Elazar.  Most of the Rishonim hold that they differ about whether one fulfills his obligation if he mistakenly says "Ha-E-l Ha-kadosh."  This seems to flow out of the simple reading of the gemara - "R. Elazar said: Even if he said 'Ha-E-l Ha-kadosh' he fulfills his obligation."  It seems that Rav does not hold that he fulfills his obligation.
            The Ba'al Ha-ma'or, however, writes:
"The halakha is like Rabba that one should ideally [say 'Ha-E-l Ha-kadosh'], but if one mistakenly did not, we do not require him to repeat [the Shemoneh Esrei].  When Rabba son of Rav Chana said in the name of Rav that during the ten days between Rosh Hashana and Yom Kippur we should say 'Ha-melekh ha-kadosh' and 'Ha-melekh ha-mishpat', he meant IDEALLY (le-khatchila).  When R. Elazar said that one fulfills his obligation through 'Ha-E-l Ha-kadosh' and 'Ha-E-l Ha-mishpat,' he referred to a case where one said them mistakenly ('be-di'avad').  They do not argue; rather, each speaks about a different situation."
            The Ba'al Ha-ma'or thus claims that Rav and R. Elazar do not argue at all.  R. Elazar only comes to explain that Rav was only referring to what should ideally be said.
            Although the Ra'avad in his glosses on the Ba'al Ha-ma'or argues with him, he ends up ruling in his glosses on the Rambam's Mishneh Torah in accordance with the Ba'al Ha-ma'or.  In Hilkhot Tefilla (10:13) the Rambam rules:
"During the ten days between Rosh Hashana and Yom Kippur, if one mistakenly closed the third blessing of the Shemoneh Esrei with 'Ha-E-l Ha-kadosh,' he should return to the beginning of Shemoneh Esrei.  If he mistakenly said 'Melekh ohev tzedaka u-mishpat in the eleventh blessing, he should return to the beginning of the blessing and end 'Ha-melekh ha-mishpat' and continue to pray in order ..." 
The Ra'avad comments:
"Some say that one need not return to the beginning.  When the gemara said 'he did not fulfill his obligation' it meant that he did not say the blessing as it should be said.  We find [a similar expression] with regard to Keriat Shema: they say that one who reads with men of the Mishmar or the Ma'amad does not fulfill his obligation because they say it too early.  It is well known, though, that they read after alot ha-shachar (when it is already light but still before sunrise) and  that one can be-di'avad fulfill his obligation then in pressure situations.  The expression 'he does not fulfill his obligation' means, as we said, that he did not fulfill it in the ideal way.  This is also such a case."
            Even though the Ba'al Ha-ma'or and the Ra'avad both hold that one who mistakenly did not say "Ha-melekh ha-kadosh" fulfills his obligation, they might still differ in their understandings of the passage in the Talmud.  The Ba'al Ha-ma'or might learn that Rav and R. Elazar do not argue at all - that mistakenly not saying "Ha-melekh ha-kadosh" does not flaw one's prayer at all, whereas the Ra'avad might hold that if one did not say "Ha-melekh ha-kadosh" his prayer is flawed.  Still, he need not repeat the Shemoneh Esrei for such a mistake.
            There are two other plausible ways of understanding Rav and R. Elazar in our passage.  1. They might argue, but only about what should ideally be done; both agree though that one fulfills his obligation if he mistakenly forgets.  2. They might have radically different approaches.  Rav might hold that one must say "Ha-melekh ha-kadosh" and repeat Shemoneh Esrei if he forgets to, and R. Elazar might say that one MUST say "Ha-E-l ha-kadosh" and repeat Shemoneh Esrei if he forgets it.
            Rav and R. Elazar either:
1. argue about whether one fulfills his obligation be-di'avad (most Rishonim);
2. agree totally and are just speaking about different situations, be-di'avad and le-khatchila (Ba'al Ha-ma'or);
3. argue just about what should ideally be done;
4. argue radically, one seeing one text as essential and the other seeing the second text as essential.
            What is the relationship between the two arguments the gemara quotes: that of Rav and R. Elazar and that of Rabba and R. Yosef?  The answer to this question is crucial to determining how we finally rule in a be-di'avad case.  The gemara concludes that we rule like Rabba but it is unclear about the question of whether the two arguments are independent (or whether Rabba follows Rav and R. Yosef follows R. Elazar).
            The simplest way of reading the gemara is to view the two arguments as distinct: Rav and R. Elazar argue about the be-di'avad level and Rabba and R. Yosef about what to say le-khatchila.  The ruling at the end of the gemara (like Rabba) does not indicate how we rule in the first dispute (Rav or R. Elazar).
            The Tosafot (Berakhot 12a s.v. Ve-hilkheta Kavatei De-Rabba) write:
"One must close with 'Ha-melekh ha-kadosh' and 'Ha-melekh ha-mishpat'.  If he did not, he must repeat [the Shemoneh Esrei].  The same holds true for 'Zakhreinu' and 'Mi Kamokha' and 'Be-sefer Chaim' - if they were not said, one must go back, for 'anyone who deviates from the text that the Sages set for prayers does not fulfill his obligation.'"
            It seems that the Tosafot viewed the two amoraic arguments as interdependent.  Let us clarify the nature of this interdependency.
            There are two ways of approaching the argument about whether one fulfills his requirement through mistakenly saying "Ha-E-l ha-kadosh."  It might, on the one hand, be a factual argument about what the Sages decreed - whether they just ideally (le-khatchila) required "Ha-melekh ha-kadosh," or they decreed that one does not fulfill his obligation without saying it (in other words, even be-di'avad one must say "Ha-melekh ...").  Without mentioning God's sovereignty during this time period, one does not fulfill his obligation of prayer.  The latter opinion can be formulated in one of two ways: 
1. Mentioning God's sovereignty during the Ten Days of Repentance is so crucial to prayer that it is inconceivable to not say "Ha-melekh ha-kadosh."  They therefore decreed that one must repeat the Shemoneh Esrei if he forgot it.
2. Once the Sages decreed to say "Ha-melekh ha-kadosh," it became the text of prayer; and based on the principle, "Anyone who deviates from the text of prayer does not fulfill his obligation," it became essential.  One must repeat the Shemoneh Esrei if he forgot "Ha-melekh ha-kadosh" because he deviated from the Sages' text of prayer.
            Tosafot seem to have taken the second approach, for they cite the reasoning that "Anyone who deviates from the text that the Sages set for prayers does not fulfill his obligation."  It follows that there is no way to read the two arguments in the gemara as dealing with two separate issues, one (Rabba - R. Yosef) relating to the ideal text (le-khatchila) and the other (Rav - R. Elazar) relating to which text is essential to fulfilling your obligation (necessary even be-di'avad).  One can never say the non-ideal text because it means deviating from the Sages' text.  [How far to go with this rule demands attention: it is difficult to say that any change is considered a deviation, for praying in another language is permissible, and the Hebrew text has variant texts (nuscha'ot).  Which changes are considered deviating from the Sages' text - any change in content?  Is there some standard of a radically different text?  These questions require separate treatment.]
            It is possible to offer a third approach to understanding the argument between the Amoraim.  The Ra'avia (siman 40) writes:
"It seems to me that if one makes a mistake he need not go back [and repeat the Shemoneh Esrei].  One should not say that since Rav says that one fulfills his obligation through 'Ha-E-l Ha-kadosh,' R. Elazar must argue and say one does not.  For we rule like the passage in 'Ba-meh Madlikin' that on days where there is no sacrifice and Mussaf if one mistakenly does not say ... he need not go back."
            The passage the Ra'avia referred to is in Shabbat (24a):
"Rav Oshia quoted a beraita: Days on which a Musaf (additional) sacrifice is brought, like Rosh Chodesh and the Intermediate Festival Days ... one says the Shemoneh Esrei at Arvit, Shacharit, and Mincha and adds a special mention of the day ('Ya'aleh ve-yavo') in the blessing 'Avoda' ('Retzei ... Ha-machazir Shekhinato Le-tzion') and must repeat [the entire Amida] if he mistakenly forgets it ... Days on which no Musaf sacrifice is brought, like Mondays and Thursdays of [drought] fasts and the Ma'amadot (bi-weekly pilgrimage to Jerusalem) ... one says the Shemoneh Esrei at Arvit, Shacharit, and Mincha and adds a special mention of the day in the blessing 'Shome'a Tefilla.'  If he mistakenly forgets, he need not go back."
            This gemara seems to lend explicit support to the Ra'avia's assertion that one need not repeat the Shemoneh Esrei if he forgets "Ha-melekh ha-kadosh."  The Ra'avia there continues:
"It is incorrect to claim that the two cases are qualitatively different, the one a MISTAKE ('Ha-E-l' instead of 'Ha-melekh') and the other an OMISSION (skipping the addition for the fast day) and therefore more lenient.  This ('Ha-E-l' instead of 'Ha-melekh') is also an omission - forgetting to mention sovereignty (malkhut)."
            The Ra'avia, though he distinguishes between an incorrect text (which demands repeating Shemoneh Esrei) and an omission (which does not), views substituting "Ha-E-l" for "Ha-melekh" as an omission of mention of God's sovereignty, not as saying an incorrect text.
            Three approaches present themselves about how Rabba and R. Yosef's argument relates to Rav and R. Elazar's:
1.  Rabba and R. Yosef argue about whether 'Ha-melekh ha-kadosh' needs to be said ideally (le-khatchila), while Rav and R. Elazar argue about whether it is essential (even be-di'avad) to Shemoneh Esrei (the simple reading of the gemara).
2.  The two arguments are interdependent because once the Sages formulated the text of prayer (if only as an ideal), deviating from that text becomes by definition incorrect and illegitimate (most likely Tosafot's approach);
3.  Both pairs of Amoraim must only argue about the ideal text, for from Shabbat 24a it is clear that one does not have to repeat Shemoneh Esrei if he mistakenly leaves out "Ha-melekh ha-kadosh" (Ra'avia).
            As mentioned, the Ra'avia believes that, based on Shabbat 24a, there is no need to ever repeat Shemoneh Esrei because of forgetting "Ha-melekh Ha-kadosh."  Only forgetting "Ya'aleh Ve-Yavo," said on days when a Mussaf sacrifice was offered, demands repeating the Shemoneh Esrei.  "Ha-melekh Ha-kadosh" is more akin to the additions made on fast days or Ma'amadot; one does not go back if they were forgotten.  How can we explain the other Rishonim's reluctance to make this comparison?
            A comment made by Ha-rav Yosef Dov Soloveitchik zt"l explaining an argument between the Rema and the Gra should be helpful in understanding the argument between the Ra'avia and other Rishonim.  The Rema (OC 557) rules: "One who ate on Tisha Be-Av should say 'Nacheim' in Birkat Ha-mazon."  The Gra (ibid.) argues with him:
"He learned this from what he said in the laws of Yom Ha-kippurim (OC 618) [where the Shulchan Arukh ruled: 'A sick person who ate on Yom Kippur and had enough presence of mind to be able to say Birkat Ha-mazon should mention Yom Kippur in Birkat Ha-mazon by saying 'Ya'aleh Ve-yavo' in the blessing 'Boneh Yerushalayim.'].  This is not a legitimate comparison, because we say on Shabbat 24a that on days where there is no Mussaf sacrifice, one must not repeat the Amida if he omits mention of the day ... and [these days] are also not mentioned in Birkat Ha-mazon ...."
            Rav Soloveitchik explained that there are two types of additions to Shemoneh Esrei and Birkat Ha-mazon.
1.  Those that are not organically integrated into the Shemoneh Esrei, which are added in "Retzei."  The Sages saw a need to mention Rosh Chodesh and Chol Ha-mo'ed, so they found a place in the Amida to do it.
2.  Those additions that become an organic part of the Shemoneh Esrei are added in the blessing that is most naturally appropriate.  "Nacheim" is therefore added to "Boneh Yerushalayim."  It is not something extraneous "planted" in Shemoneh Esrei, but part of the natural text of Shemoneh Esrei - on Tisha Be-Av the blessing about Jerusalem is modified.
            This distinction might be the key for understanding the Rema.  At first glance, as the Gra points out, the Rema seems to go directly against the gemara in Shabbat 24a - only days when there is a Mussaf sacrifice get special mention in Birkat Ha-mazon.  However, according to the Rema that gemara only refers to additions that are not an organic part of the Birkat Ha-mazon, like those relating to the holidays and fasts and ma'amadot.  "Nacheim," though, is organically integrated into "Boneh Yerushalayim" in Birkat Ha-mazon.  The distinction between days when there is a Mussaf and those when there is not is irrelevant to these types of additions.
            The Rishonim who argue against the Ra'avia might likewise view "Ha-melekh Ha-kadosh" as an integral part of the prayers during the Ten Days of Teshuva (like "Nacheim" on Tisha Be-Av), not something the Sages decreed to say within the context of prayer (like "Ya'aleh Ve-yavo").  Perhaps the distinction between days when there is a Mussaf and those when there is not does not apply to organic additions in Shemoneh Esrei and not just Birkat Ha-mazon.  [Though one does not NECESSARILY repeat the Shemoneh Esrei for forgetting any organic addition (just as one need not repeat if he forgot 'Al Ha-nissim,' an organic addition), it is still POSSIBLE to require repeating.]
            According to this approach, the Ra'avia and others argue about whether "Ha-melekh Ha-kadosh" is an organic part of the flow of Shemoneh Esrei (the other Rishonim) and therefore not bound by the principle laid down on Shabbat 24, or is rather an external addition planted in Shemoneh Esrei (Ra'avia) that must follow the rule laid down in Shabbat 24 and therefore would not require repeating Shemoneh Esrei if forgotten.
            An alternate approach to this dispute centers around another distinction between two types of additions to the prayers.  There are two reasons why something might be added to the text of the prayer.  According to this approach, the Ra'avia and his opponents differ about what function "Ha-melekh Ha-kadosh" serves.
            One reason to modify the text of the prayers emerges from Sukka 46a:
"We learn in a beraita: If one wants to fulfill a number of mitzvot, he says the blessing, 'Blessed ... who sanctified us through his commandments and commanded us concerning the commandments' [instead of the name of a specific mitzva].  Rabbi Yehuda says: He makes a separate blessing on each of them. ... What is the source of Rabbi Yehuda's opinion?  'Blessed is God day by day,' ... Each day give Him according to His blessings.  Here likewise, each matter should be blessed accordingly."
            The verse teaches us a principle of prayer - our prayers should be modified to match the particular situation we are in.  The text of our Shemoneh Esrei must fit the nature of the day, and our blessings must be specific enough to relate to the food we are eating.  This verse is the source for one type of addition to prayer - adapting the text of prayer to particular situations.
            There is, though, a second function for additions to the standard text of prayer: fulfilling the mitzvot required on particular days.  For instance, the Torah commands, "Remember the Shabbat day and sanctify it."  This is "a positive mitzva to sanctify the Shabbat through words" (Rambam, Hilkhot Shabbat 29:1) and is fulfilled, among other places, in the Amida.  Similarly, Yom Tov must also be declared in prayer.
            [Mentioning Rosh Chodesh in prayer might also function as a way of sanctifying the new month.  The community mentioning Rosh Chodesh in prayer might be a modern replacement for the declaration the community would make at the end of the kiddush ha-chodesh ceremony.  "After the testimony about the new moon is affirmed, the head of the court says 'It is sanctified,' and all of the people answer after him, 'It is sanctified; it is sanctified'" (Rambam, Hilkhot Kiddush Ha-chodesh 2:8).  Even though we do not retain the monthly declaration of Rosh Chodesh any more (through the fixed calendar system), the public declaration might have been retained.]
            Perhaps the first requirement, adapting our prayers to the particular situations, is only an ideal (le-khatchila) requirement, while the second, fulfilling the mitzva in the context of prayer, might be required on an essential level (be-di'avad).  This is borne out by the mishna and gemara in Berakhot.  The mishna (35a) reads, "On vegetables one says 'Borei peri ha-adama' (He creates the fruit of the ground).  Rabbi Yehuda says, 'Borei minei desha'im' (He creates many types of vegetation)."  The gemara (40a) sees Rabbi Yehuda's ruling as based on the principle "'Blessed is God day by day' - Each day give Him according to His blessings," concluding, "Bless him in a way appropriate to each individual species."  Certainly, even according to Rabbi Yehuda, "Borei peri ha-adama" is still an acceptable blessing over vegetables - for the mishna (40a) teaches that one even fulfills his obligation through "She-hakol nihyeh bi-devaro."  Apparently the rule of adapting prayer to special situations is only required le-khatchila.
            If this is accurate, then repeating a prayer because of omitting a mention of a holiday or a special text must stem from a particular requirement of that holiday or situation [although this is not always necessarily so - despite the obligation of pirsumei nisa, we do not repeat the Amida if we omit "Al Ha-nissim" on Chanuka].  One who prayed the weekday Shemoneh Esrei on Shabbat repeats the silent prayer because of his not remembering Shabbat, not because of his prayer being flawed.
            This might explain the differing opinions about "Ha-melekh Ha-kadosh."  The Orchot Chaim (Tefila 104) explains:
"In the ten days between Rosh Hashana and Yom Ha-kippurim one closes the third blessing with 'Ha-melekh Ha-kadosh' and the eleventh blessing with 'Ha-melekh Ha-mishpat.'  The reason is in order that he remember that the time has arrived to come before the King of the world.  Closing with 'Ha-melekh Ha-mishpat' likewise is in order that he be in awe and fear from God when the time comes for him to be judged.  He should fear this and repent completely."
            If so, it seems that mentioning "Ha-melekh Ha-kadosh" and "Ha-melekh Ha-mishpat" is part of the special mitzva of repentance that applies to the ten days between Rosh Hashana and Yom Kippur.  Therefore, if one forgets, he must repeat because he has not related to the Ten Days of Repentance properly, not because his prayer per se was flawed.
            We might thus be able to explain the opinion of Tosafot R. Yehuda Sirleon (Berakhot 12b, also quoted in the Hagahot Maimoniot, Hilkhot Tefila 10:50) which distinguishes between "Ha-melekh Ha-kadosh" - where one need not repeat Shemoneh Esrei if he mistakenly omitted it - and "Ha-melekh Ha-mishpat" - where he must.  The explanation offered there is that "He deviated from the Sages' text of blessings."  This is difficult, for omitting "Ha-meklekh Ha-kadosh" is also a deviation from the text of the prayer (unless we wish to say that "Ha-melekh Ha-mishpat" is a greater deviation from "Melekh ohev tzedaka u-mishpat" than "Ha-melekh Ha-kadosh" is from "Ha-E-l Ha-kadosh").
            One way of explaining this halakha (though without retaining the explanation written there) is by maintaining that the special obligation to repent during the Ten Days comes to expression in supplicatory section of the Amida, where man's dependence is highlighted and his awe and dread of God come to the fore.  Changing the text to read "Ha-melekh ha-mishpat" thus arouses fear of judgement and brings one to repent.  Therefore, the prayer must be repeated if this section is forgotten, for one has not fulfilled his requirement to arouse penitence.  By contrast, the change "Ha-melekh Ha-kadosh" stems merely from the requirement that one's prayer make note of the time it is recited.  The prayer need not be repeated if this was mistakenly omitted.  In other words, "Ha-melekh ha-mishpat" is due to the mitzva of teshuva, and "Ha-melekh ha-kadosh" is due to the requirement of "Each day give Him according to His blessings."  The former necessitates repetition if omitted; the latter does not.
            Based on the above, we might suggest a further distinction - between Rosh Hashana and Yom Kippur on the one hand, and the rest of the Ten Days of Teshuva on the other.  On Rosh Hashana there is a mitzva of coronating God as King, as we say in the prayers, "Rule over the whole world in Your honor."  We say Malkhuyot, Zikhronot, and Shofarot "so you should make Me your King."  Certainly, saying "Ha-melekh Ha-kadosh" on Rosh Hashana is not only a way of adapting the prayers to the time, but fulfilling the mitzvot of Rosh Hashana. 
            Concerning Yom Kippur, the Rishonim argue over whether we should say "Ya'aleh Ve-yavo" and "Melokh (Rule)" or not.  All agree that we should say "Forgive our sins ..."  The Tur (OC 619) quotes the dispute between R. Yitzchak Giat - who rules to say them - and Rav Amram who says not to.  In Ashkenaz the custom was to say "Ya'aleh Ve-yavo" and not "Melokh", while in Sefarad "Melokh" was also said.  This might reflect a dispute about whether there is a mitzva of acknowledging God's sovereignty on Yom Kippur.  If so, we might suggest that on Rosh Hashana, and perhaps on Yom Kippur, when there is a mitzva to acknowledge God's sovereignty, one must repeat the prayers if he mistakenly omitted "Ha-melekh Ha-kadosh."  During the other of the days of repentance, the mention of "Ha-melekh Ha-kadosh" is only part of adapting the prayers to the time period and therefore need not be repeated if forgotten.

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