Responsum: On the Evening Prayer

Answer: [ . . . ] All the difficulties you raised can be resolved. The fact that all Israel pray the evening prayer in synagogues is not a problem. Do we say that they are obligated to do so, that one who does not follow this practice can expect punishment? One can say that they perform this custom as an optional matter, not an obligation. After all, everyone agrees, both those who maintain that it is obligatory and those who say that it is optional, that it is a commandment. Now, there are two types of commandments: Some of them are obligatory, which means that one who does not perform them has committed a transgression, whereas others are optional, and therefore one who performs them will be rewarded. For example, one who is careful to perform charity and acts of lovingkindness will receive a reward from heaven, while one who refrains from such acts is not considered to have transgressed, like one who fails to pray entirely, or who neglects to put on ritual fringes or sit in a sukkah. Rather, he merely forfeits the reward. But whether it is optional or obligatory, it is still classified as a commandment. For example, we learned regarding the recitation of Shema‘ that its command [applies] with sunrise [b. Berakhot 26b], and that commandment is optional. One who reads it at that time, in the manner of pious individuals, has fulfilled a commandment and can anticipate a reward, whereas one who delays its recitation has not committed the transgression of one who did not read Shema‘ at all. Rather, he has merely forfeited that reward. If it were an obligation, he would be considered to have transgressed. [ . . . ]

The same applies to the evening prayer. Everyone agrees that it is a commandment, but one who maintains that it is obligatory is saying that someone who does not pray has committed a transgression, and it is for that reason that he calls it obligatory, whereas one who claims that it is optional is saying that it is a commandment regarding which a person has the option of whether or not he will perform it. If he wants a reward, he will fulfill this commandment and earn the reward, and if not, he can forfeit the reward without being considered a transgressor. [ . . . ] It can be inferred that if one has not yet loosened his belt and thereby diverted his attention from prayer, it is a commandment for him to pray, but even so, this is an optional commandment. However, if he has loosened his belt, it is not a commandment for him to pray, not even an optional one, and if he did go to the trouble of praying, then it is considered a pious act, like one who arises in the middle of the night to sing songs and praises to God, which is not a commandment but an act of piety.

Since it is a commandment, especially as people are already sitting in the synagogue, and it is a very good thing to pray, and one who neglects to do it will forfeit a great benefit, it has become the custom in Israel not to lose out on such a reward, which they can obtain. [ . . . ]

Regarding marital relations, it has been established as law that they are forbidden to a mourner, and [refraining from them is] not optional, but [refraining from] wearing shoes and washing remains elective; a mourner who refrains from these can expect a reward. Nevertheless, it has become the practice of all Israel not to forfeit this reward, even though one who does not refrain from these activities has not committed a transgression. Thus, it cannot be said that this custom is effectively a ruling in favor of the opinion that these practices are obligatory. [ . . . ]

You can [in fact] raise a difficulty from the verse itself,¹ as Daniel subjected himself to death on account of this commandment. This is certainly a difficulty for the opinion that the evening prayer is optional: how could Daniel place himself under the risk of being killed for something that is not even obligatory? The resolution of this difficulty is that even according to the opinion that the evening prayer is obligatory, a person must subject himself to possible death only for the three cardinal sins [i.e., idolatry, bloodshed, and illicit sexual relations], as the sages concluded after counting their votes in the upper story of the house of Nitzah in Lod [see b. Sanhedrin 74a]. The reason why Daniel subjected himself to death is because it was a time of persecution, as when Ravin came he said in the name of R. Yoḥanan: They taught this only when it is not a time of persecution, but in a time of persecution one must always be killed and not transgress. And Rabbah bar R. Isaac said in the name of Rav: This applies even to changing the strap of a sandal, when it is the custom for Jews to wear black ones while non-Jews wear red ones. This last statement comes to explain that in such circumstances one is obligated to subject himself to death even for a custom, and since one can say that it is for this reason that Daniel subjected himself to death, the difficulty is resolved.