Artificial Halacha: Two More Flavors

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[Warning to readers. If you believe that you have no valid reason to read details about approaches to halacha best described as kefirah, please go no further. This piece is not for you, and you will miss nothing by skipping it.]

The academic view of halachic literature that we discussed in an earlier post is just one of several competitors to traditional methods of approaching rabbinic texts. Two others should be understood by thinking Torah Jews. These deal with reaching halachic conclusions when the gemara, rishonim, and acharonim do indeed (unlike the kabbolas mitzvos issue above) yield different halachic conclusions. In the absence of a Sanhedrin, or a firm conclusion in a gemara, how are we supposed to sort things out and come to some sort of practical determination?

With much simplification, you can take hundreds of years of responsa literature and detect a modal methodology for dealing with halachically weighty issues. Roughly, an author will inventory earlier halachic literature for principles and sources that are relevant to a question. He will offer a tentative solution, based on some of them. Let’s assume that he came up with what he felt was a strong case based on Tosafos. He may push and prod a bit, finding objections internally, or in other places that Tosafos comment. He will consider other, possibly conflicting readings of Tosafos, and show why he believes that his is best. From there, the argument goes somewhat like this:

1) The Rif and the Rashba seem to disagree with that of Tosafos.
2) It can be demonstrated that the Rif’s opinion is not substantively different, even if it appears to be. Alternatively, while there usually is a disagreement, both opinions would coincide in the case at hand.
3) The Rashba is linked to another position of his elsewhere. That second position is rejected by Shulchan Aruch/ rov Rishonim, etc. Therefore, we needn’t take it into account.
4) One could counter the main argument with the Meiri, the Teshuvos HaRosh, and a Mordechai. Examination shows that they are all address related, but slightly different issues. They therefore have little or no impact upon the main argument.
5) The argument based on Tosafos, therefore, is the strongest and should be accepted as dispositive.

In other words, a proper halachic argument is a search for halachic “truth:” the best fit with the majority of evidence. “Evidence” means Talmudic texts, consequences that flow from them, and the positions of Rishonim (and important Acharonim, weighted according to stature and prominence). An argument is not complete unless all important counterarguments are considered and dealt with.It could not be otherwise. How could one arrive at the truth without careful consideration of all evidence, and all important voices that have considered it?

In one of my law school classes, I take students through a comprehensive responsum by the Tzitz Eliezer regarding the status of women whose husbands were taken away on transports to Nazi extermination camps, and never heard from again. I show them how he touches on a variety of gemaros and the consequences that ensue from each of them. More tellingly, I demonstrate how thoroughly he deals with perhaps the most important of them, mayim she-ein lahem sof. He finds three completely different ways of understanding it in the Rishonim – and then show why each individually would be satisfied in this case to pronounce the husbands dead and permit the women to remarry. He only rules leniently because he can satisfy every important objection.

The sharpest contrast to this methodology comes not from academic circles, but from the responsa of other denominations. I have seen quite a few (they used to be far more popular decades ago, when they made more of a pretense of being halachic) that follow a predictable sequence:

1) Decide what conclusion you want to arrive at. This will often be based on predicting what the Jewish ethical response must be in a world that has changed so significantly from the early legal texts of Judaism, that the modern author is given much leeway.
2) Find a few gemaros that seem to deal with the issue. If they don’t agree with your conclusion, either ignore them altogether, or find some understanding of each counterexample which will make it irrelevant to our times. This can be done by finding a single Rishon whose explanation of the gemara makes it possible to argue that the rabbis of the Talmud simply would not have said the same thing today. It doesn’t matter if that Rishon’s thinking is outweighed by a huge number of contradictory opinions.
3) Alternatively, show why such thinking is simply at odds with contemporary insight and reasonableness, and therefore must be discarded as foreign to the “spirit” of Jewish law and its inherent resiliency and flexibility.
4) Find a medrash as a springboard to show how quintessentially Jewish, how much in the spirit of Jewish law your own conclusion is.
5) Accept your original argument.

I teach a class in halacha to high school senior girls. None have any background in gemara. Most years, I manage to offer them an old Rabbinic Assembly (Conservative) responsum on why it is permissible to drive a car on Shabbos. I am most interested in their seeing the backbone of the responsum. It argues that burning fuel in an engine is the sole objection to driving (completely ignoring issues of lights and hotza’ah), and it is a melachah she-eino tzrichah legufah. This is so because there are two major understandings of the concept, Rashi’s and that of the Tosafos. Now, Rashi’s is difficult to understand, so the author says it can be ignored! According to Tosafos, if a melachah is done in the same manner as it was done in the Mishkan, but for a different objective, it is a melachah she-eino tzrichah legufah. In the Mishkan, they used fire to heat water, not for transportation. Melachah she-eino tzrichah legufah is only prohibited rabbinically. All rabbinic laws don’t apply when most of the tzibbur cannot abide by them. Most Jews drive on Shabbos. In any event, rabbinic prohibitions are waived in situations of mitzvah, like driving to shul. Ergo, driving is permissible.

I ask the girls to critique it – and inevitably, they quickly find three or four major errors. (There are more than that.)

I’m presenting the worst-case scenario, to make a point, which has nothing to do with Conservative responsa, as will soon become clear. There were certainly figures in the Conservative world – Saul Lieberman, David Feldman – who did much better. And there are responsa that still appear today that are as bad as this, e.g. a recent Hechsher Tzedek opinion that based so much on a complete misreading of a teshuva of Rav Moshe.)

Cross-Currents readers will smirk or shudder at this description, depending on their sympathies. But for all that it wreaks havoc with the halachic process in century after century of recorded literature, this contrasting approach is at least honest. It delivers what it promises. It does not claim to uncover an inherent truth that flows from Divine Revelation, because it does not believe in a truth that can be so uncovered – partly because it is uneasy about whether such a Revelation ever literally occurred, and partly because it does not see an organic connection between the Oral Law and the Written Law. It sees halacha as an ongoing search in every generation for what we can guess G-d wants of us. Our educated guess is based on the sum total of all human knowledge, importantly including the collected Jewish wisdom of the past. When we find connections and allusions to our findings within that tradition, when we honor it by enlisting any of the voices of our glorious path, we are doing the best that G-d could ask of us.

Those who do believe in both Revelation and the Sinaitic source of Torah She-b’al Peh fully and firmly reject this approach, of course. That leaves us with the approach I outlined above. So one would think. As of late, however, we can discern yet another approach to texts and the conflicts therein.

A stylized version goes somewhat like this:

1) According to the Rambam, the Rosh, and the Kol Bo, activity X is proscribed. The Mordechai takes an even stricter view than the others, seeing multiple issurim involved.
2) No one explicitly permits it. However, a responsum by the Nodah Be-Yehudah includes an argument by his interlocutor which presents a lenient line of reasoning. The Nodah Be-Yehudah himself rejects it, with cause.
3) Poskim for the last few hundred years have all accepted the Nodah Be-Yehudah. However, Responsa Minchas Pinchas argues that in a sha’as ha-dechak situation, we can rely on the rejected line of reasoning – although he only uses it together with other extenuating circumstances. (The Minchas Pinchas, who wrote in Cincinnati at the turn of the twentieth century, is not well established as a halachic powerhouse, which is lamentable since he demonstrates a proclivity towards leniency. Living in America, having no Shomer Shabbos congregants, provided him with an enlightened and practical view of modernity and its demands. In any event, his is as legitimate a halachic voice as any other, so it may be relied upon.)
4) We find ourselves equally in a sha’as ha-dechak situation today. For the large part of the Orthodox world that is unhappy with the constraints of Jewish law, we likewise have halachic sanction to be lenient.
5) Therefore accept the lenient opinion.

The assumptions here are certainly different from the Conservative model. Halacha is taken much more seriously. We must live within its boundaries; its right to make demands upon us is unquestioned.

It doesn’t quite believe in the best-fit model either, however. It’s underlying assumption is that halacha is about process, rather than conclusion. There is no “best” answer to be uncovered, one that rings “truer” than others. When you follow the process of halacha, the decisor is given much latitude. Regarding any halachic issue, there are many halachic voices.
All these voices are legitimate, so long as they follow the process of taking halachic texts seriously.

. They can be followed. The decisor carefully weighs the impact that consequences of the different voices will have, and then makes a good-faith decision based on circumstances and need. Every rabbi is charged with making the decisions for his tzibbur. The decisor need not be as learned or insightful as others; he simply must be competent and credentialed.

You will find plenty of examples of this paradigm, and plenty more to come. Over the last years, responsa modeled on it have appeared on topics like women’s prayer groups, and the ordination of women. People know which journals publish this kind of thought, and where such rabbis are trained.

Some people see a danger in the collected oeuvre of this group. They see a change in women’s roles that is too dramatic, too sudden, not traditional enough.

I think this is a mistake. Reasonable people can disagree as to whether these changes are horrific or welcome. The key danger is that it is a repudiation of the model of halachic inquiry with which the rest of us live our lives. We do so not just because our rabbei’im taught us as much (although that would be sufficient reason), but because the texts unmistakably speak to us that way.

This new approach is different from the traditional, as surely as is the Conservative one. It is far more dangerous, because fewer people will notice the difference. It is nothing less than a trivializing of halachic process.

We have a problem on our hands.

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32 Responses

  1. Jon Baker says:

    R’ Adlerstein here contrasts “the traditional” methodology of psak (find a Rishon with a strong argument, then prove why other counter-arguments are not dispositive) with the heterodox (decide at the beginning what the answer is, then find texts to support it) and the “modern” (find a kula, figuring society has changed, and use a sh’at hadechak to push the kula to the fore).

    R’ Adlerstein neglects a common enough traditional mode which is almost indistinguishable from the heterodox mode: that of Daas Torah, as explained by R’ Simcha Weinberg in a lecture at Lincoln Square Synagogue perhaps 15 years ago. According to R’ Weinberg, who I think was drawing on his father as a model, one learns all one’s life, to the point where one becomes so imbued with the Torah and its ways of thinking about law and life, that one becomes in effect a living Torah. Then, one’s off-the-cuff reactions to questions are likely to be correct. So a Daas Torah response to a question will be either an unsupported dictum, or an argument constructed to rationalize a decision reached without thought.

    So the Daas Torah mode, which is probably followed by most Gedolim who are Gedolim by virtue of their having incorporated the Torah fully into their minds and lives, has become a “traditional” (but really pretty modern) mode that is all but indistinguishable from the heterodox mode.

    [YA – “Probably followed” is hardly impressive. I’ve seen no examples of it, other than statements that are acknowledged as not based by thorough halachic discourse. (People who respect the notion of Daas Torah will follow such opinions, even lacking the halachic backup. Rav Yisrael Salanter, in fact, claimed that this was the essence of Emunas Chachamim – following their opinion when they admitted they could not immediately provide the halachic source.) Many questions do not lend themselves to this, or suffice with it. When that happens, traditional halachic discourse is needed, and the models I reported do show a disturbing bifurcation as of late.]

    It’s all very well to sit back and look down upon the way the Others do things, but one should really make sure that the Other way is not so similar to Our way.

  2. Bruce says:

    RYA: Science is progressive. It keeps adding layers of understanding. Torah, unlike science, is revealed wisdom. The further we move from the moment of revelation (for a number of reasons; my favorite is NOT the “playing telephone” model, but the more mystical approach of the Ran in the Derashos) the more attenuated the signal, the greater the noise-to-signal ratio. In a revealed system, the most important knowledge is available instantly, and only has to be reconstructed later when doubt arises.

    Could you explain a little more about the Ran’s model. (I apologize if this is a basic questions.) I understand the claim that the generation at Sinai, or even a few generations after them, would have superior halachic knowledge and understanding. But I’m puzzled why the Rishonim (~2400 years after Sinai) would necessarily have superior knowledge or understanding than a Gadol Hador today (~3250 years after Sinai). The signal is pretty attenuated in either case, the noise is constant, and the contemporary Gadol Hador has some advantages, including generations of previous scholars as well as contemporary scientific and academic scholarship (like economics, or law) that sometimes provides some non-obvious but important insights. Standing on the shoulders of giants, etc.

    RYA: a freshman physics student might find an error in one of Einstein’s calculations. […] Halacha goes with the odds.

    A better analogy to my argument might be that an Einstein might revise Newton’s theories. Again, I’m thinking of a contemporary Gador Hador (not a student) disagreeing with a Rishonim.

    Thank you again for your insights. I have been puzzled by this question for a long time.

  3. Joel Rich says:

    R’YA,
    Precisely the point. Science is progressive. It keeps adding layers of understanding. Torah, unlike science, is revealed wisdom. The further we move from the moment of revelation (for a number of reasons; my favorite is NOT the “playing telephone” model, but the more mystical approach of the Ran in the Derashos) the more attenuated the signal, the greater the noise-to-signal ratio
    So let’s say the shulchan aruch paskined based on the position of the Ramban and a few generations later 4 new manuscripts were found that clearly demonstrated that there was a scribal error in the version of the Ramban that the shulchan aruch had. In your model, would halacha change?

    [YA- You are going to have to look pretty hard to find cases that rest upon the Rambam alone, whereby the discovery of the slam-dunk “correct” version will make a crucial difference. Usually, the Rambam will be one of several on one side. Would the calculus of who-is-on-what-side change if a “better” text were found? Sure. Happens all the time. Lots of places where acharonim will shift a rishon from one column to the other on the basis of a different reading.]

    . When poskim felt that people were having a hard enough time hewing to any halachic standard, they could argue that it was proper to be more meikal. They did not, and could not, pull halachic rabbits out of a hat.

    So again the issue is not process but who is a “baal horah” – this differentiates “they” who are viewed as meikal versus those who are viewed as rabbit pullers.

    [YA – Nope. Comparing apples and oranges. In the art of weighing different established positions and deciding within ESTABLISHED borders of flexibility, who is doing it will certainly make a difference. A greater talmid chacham will inspire more confidence, whether lehakel or lehachmir. In charting new territory, the aura surrounding a particular personage will usually only suffice for his own circle, or only in his lifetime. Here, you need solid thinking that will survive the criticism of time. The methodology I detect – certainly for several hundred years back – across the Jewish world is what I labled the traditional methodology.]

    She-nir’eh et nehamat Yerushalayim u-binyanah bi-mherah ve-yamenu

    KT

  4. Bob Miller says:

    Rabbi Adlerstein wrote,

    “The further we move from the moment of revelation…the more attenuated the signal, the greater the noise-to-signal ratio.”

    Since the “signal” is meant to be heard and obeyed by all future generations, we can be assured that the “noise” will never overcome it altogether.

  5. Yitzchok Adlerstein says:

    Michoel wrote: An interesting historical fact may shed some light on why it is not so simple to speak in terms of halachic “truth” There are a number of cases in which it can clearly be demonstrated that major Poskim in the late nineteenth and twentieth centuries established a line of teshuvos whihc are matir things that were clearly not considered mutar by the large majority of earlier poskim. They did this not by finding new Girsoos in Chazal, but by using existing positions of Gedolei Haposkim which had clearly been considered by their forbears, and rejected by them, atr least to the extent that these positions were ignored. Suddenly, it was felt that the time had come to address these issues in a new way. This is what some people refer to as the evolution of halacha.

    In my experience, these examples make my case rather than break it. The new pesakim did not discover anything new. What changed was the calculus. At some points in history, and in some communities, if the head count of Rishonim was for example 6 for leniency and 4 for strictness, the psak was for strictness. Who wanted to take a chance when the sides were almost evenly drawn – even in regard to a rabbanan? Now, had you asked poskim in the 17th century whether this is the only conclusion that you could come up with, they would be the first to admit that the protocols of psak in the gemara and Rishonim would certainly justify going with the majority – even a small majority. In matters of derabbanan, there would be even more flexibility. When poskim felt that people were having a hard enough time hewing to any halachic standard, they could argue that it was proper to be more meikal. They did not, and could not, pull halachic rabbits out of a hat. The old saw, “Where there is a halachic will, there is a halachic way” is anti-halachic, and demonstrably wrong. (It’s author reportedly has repudiated it.) There are plenty of teshuvos by the same matirim that cannot find heterim, try as hard as they do, even in regard to matters where there is a tradition to be as lenient as possible, like agunah. The system knows its own limits.

    Perhaps we should state explicitly and unequivocally that in the absence of a Sanhedrin HaGadol, there is rarely if ever a single halachic truth, but a number of possible positions. All to them lie within a circle of halachic “truth.” (in the meta-halacha of the issue, it cannot be any other way. If there is no agency that can rule an argument absolutely invalid, contradictory arguments will coexist, and can theoretically all be considered part of the Truth that He wants us to access. Depending on the nature of the question – d’orayso or derabbanan, etc. – there can be some flexibility, and some change between communities and generations. It does not follow in any manner or form that there are an infinite number of acceptable positions.

    Michoel wrote: The difference between this type of activity and what happens today, most of the time, is that the people who did this were not suspect of intentional desire to modify Judaism, they simply wanted to address a problem. In fact even in our times there are pesokim which are issued by Bona Fide Baalei Horaah which seek to address a perceived problem in a slightly different way. They can be challenged on their own terms, but one should never attack the posek in such a case. Nevertheless it happens every day that poskim who do not want to always tow the line are attacked as issuing heterodox statements (read: “kefirah”)

    Sorry. You can’t weigh in on kefirah. We know that you attended NYU Law School! 

  6. Yitzchok Adlerstein says:

    Bruce wrote: Let’s assume that is true. That is, there is a halachic truth at the center that we are trying to discover. This might be a very basic question, but I am not sure how the halachic process you describe works to find this true halachic path or the true will of God. It is certainly possible that a contemporary scholar would have some insight that none of the Amoraim, Geonim, or Rishonim had. If so, the old rule should simply be changed because contemporary thinkers thought of something better.

    Certainly. It is also true that a freshman physics student might find an error in one of Einstein’s calculations. The odds are not in favor of the student. Analagously, a contemporary scholar might find an error in the thinking of a Tanna, but our collective sense of history is that it is so unlikely to be trivial. Halacha goes with the odds.

    Bruce wrote: It is not clear, at least to me, why a truth-seeking enterprise would (1) place such a high emphasis on the opinions and rulings of previous generations, and (2) fix the ideas of previous generations to such a high degree. By analogy, science (another truth-seeking enterprise) does not operate this way.

    Precisely the point. Science is progressive. It keeps adding layers of understanding. Torah, unlike science, is revealed wisdom. The further we move from the moment of revelation (for a number of reasons; my favorite is NOT the “playing telephone” model, but the more mystical approach of the Ran in the Derashos) the more attenuated the signal, the greater the noise-to-signal ratio. In a revealed system, the most important knowledge is available instantly, and only has to be reconstructed later when doubt arises. (Yes, I am oversimplifying things, but this model holds true of major parts of halacha.)

  7. dr. bill says:

    RYA: “It is the essential nature of halacha that I describe as halachic truth. To Conservative thinkers – and I am afraid to many on the far left of Orthodoxy – halacha is about process, but not about discovery of an essential truth that is assumed, a priori, to lie at its core.”

    The difficulty with this notion of “an” essential truth (and I noticed you did not say “the”) is that it makes eilu ve’ielu much more intractable and history of halakha less rational. Instead, I believe in a revelation that established principles that are absolute but not necessarily complete. Poskim must remain consistent with those principles as reflected in established practice.

    Discovering principles(truths), like gedolai hamesorah have done throughout history actually creates more subjectivity in a quest for less. I often ask rhetorically , did abaye and rava discover the formulation of yiush shelo medaat? And where precisely was it in the times of tannaim? Clearly it was there in one sense and not in another. You can ask a similar question about many intellectual revolutions by gedolai hamesorah – Rambam, Rabbeinu Tam, Raavad, the Gaon, R. Chaim, etc. They each created a comprehensive but different system for limmud hatorah and to a somemwhat lesser extent, psak.

    Chiddush both in the sense of an intellectual framework and a brilliant insight was revealed at Sinai. You can interpret that literally (as you appear to in some sense) or as consistent with the mesorah whose source is the revelation at Sinai. I strongly prefer the latter.

  8. Bruce says:

    RYA: I indeed use the word “truth” in a non-typical manner, at least from the Western perspective. See Seforno to Bereishis 24:49. […] He seems to suggest that holding true to preexisting principles of behavior is “true,” while deviating from them is false.

    This makes sense. although it might just be an example of the standard correspondence-theory of truth. If God wants us to do X, then the statement “You should do X” is factually true (with the trivial addition of the normative premise “You should do want God wants you to do.”)

    RYA: Both advantages are pragmatic, however, not essential. It is the essential nature of halacha that I describe as halachic truth. To Conservative thinkers – and I am afraid to many on the far left of Orthodoxy – halacha is about process, but not about discovery of an essential truth that is assumed, a priori, to lie at its core.

    Yes, my points were pragmatic and consequentialist, not essential. I think we agree that both systems pragmatically suit their particular communities.

    Your deeper point is that there is an essential truth here that the more liberal approaches miss. That is, a more flexible system of halachic interpretation or rulemaking that takes into account contemporary values may suite a community that wants to take these values into account, but the problem is that that is not what God wants. That is not leading בְּדֶרֶךְ אֱמֶת as Eliezer in Gen 24:48 (the verse before the one you cited) put it. There is certainly much to be said regarding this point, all of which I would like to skip.

    Let’s assume that is true. That is, there is a halachic truth at the center that we are trying to discover. This might be a very basic question, but I am not sure how the halachic process you describe works to find this true halachic path or the true will of God. It is certainly possible that a contemporary scholar would have some insight that none of the Amoraim, Geonim, or Rishonim had. If so, the old rule should simply be changed because contemporary thinkers thought of something better. It is not clear, at least to me, why a truth-seeking enterprise would (1) place such a high emphasis on the opinions and rulings of previous generations, and (2) fix the ideas of previous generations to such a high degree. By analogy, science (another truth-seeking enterprise) does not operate this way.

    Contrast halacha with secular law. The truth-seeking model you describe had been the dominant one in the 19th century and earlier and was reflected in cases like Swift v. Tyson, 41 U.S. 1 (1842). Judges tried to find the “true” legal rules. This understanding was later discarded in favor of a more pragmatic model, reflected in cases like Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). But even under the earlier formalism model, there was nothing like the type of institutional conservativism reflected in traditional halacha. Recent cases tended to have more weight than older cases, and earlier decisions were frequently modified and sometimes completely reversed in light of changed circumstances. The fact that Blackstone or Coke (or Solon) had ruled a certain way was sometimes a persuasive point, but never dispositive or anything close to it.

    I think the traditional approach to halacha can be justified on pragmatic grounds, along the lines I suggested earlier. But I don’t understand how the truth-seeking approach leads to this type of halachic approach. Of course, this has been the approach for a very long time, and so I am sure I am missing something. Any thought you have would certainly be appreciated.

    (Just a quick clarification: some of what you described can only be characterized as incomplete or even sloppy reasoning: not dealing with counter-arguments, ignoring important principles, etc. Those are problematic under any system.)

  9. DF says:

    With all due respect to R. Adlerstein, Cross-Currents is not the best forum to discuss this in. You need a more honest forum, like Hirhurim. Ask if you can guest post over there.

    Just to pick one small example, you criticize the left-wing groups for forming pre-conceived notions of what the halacha should be, and then finding and ignoring sources to support that pre-conceivec conclusion. Yet we know the Chasam Sofer said explictly that he followed that method, and it is intuitively obvious that many well-known poskim do the same. [one small example, as Dr. Marc Shapiro has pointed out, was anyone shocked when the Satmar Rebbe came out against Israeli esrogim, while the more Mizrachi poskim came out in favor of it? One can mutliply this example a thousand-fold.]

    I’ve no doubt you will censor and delete this comment, but at least you should stop and think about it. Be honest.

    [YA – You may know this about the Chasam Sofer, but I don’t. What the Chasam Sofer said according to the accounts I read is that he sometimes sensed what the bottom line of a halachic issue was, and afterwards found the arguments to support it. He did not, as some groups today do, figure out what he would like halacha to say, and then conjure up misguided and shallow arguments to support it. Nor could he ever get away with simplistics, or relying on a single shitah and ignoring others. Ever notice how long his teshuvos are? They are filled with deep and complex understanding of Rishonim, not sermons on public policy.

    In a recorded shiur, R Hershel Schachter deals with the kashrut of shmittah esrogim. He mentions the arguments of the Satmar Rov, z”l who forbad them, and his own rebbi, R YB Soloveitchik z”l who permitted them. He then added some choice words (which I will not repeat) for anyone who thinks that their positions halachically were determined by their politics.

    We can’t prove it one way or another, of course. But I will prefer to stick with R Schachter’s analysis.]

  10. dr. bill says:

    Rabbi Adlerstein, Bob Miller and Garnel Ironheart, one of the conclusions of prof. Katz’s work, is that often religious values derive from the community to be shaped as necessary by the halakhic rulings of its rabbis. What is called daas torah, is rarely strictly halakhic and often involves those religious values. Therein lies, at least for me, the reasons/proof that both the term as well as its application is of more recent vintage.

    When the term is further extended beyond the religious domain, you enter the realm where a posek’s advice and wisdom, which ought carry weight, is invested not just with weight but with authority. Non-halakhic advice from gedolai hamesorah and rabbis in general derives from their wisdom not their authority.

  11. Garnel Ironheart says:

    Bob Miller, the paradigm for me is the metzitzah b’peh issue a few years back where “daas Torah” announced that only direct suction by the mouth was halachically acceptable despite a wealth of legitimate halachic opinions allowing indirect suction. Suddenly we were told: oh, our Gedolim said you can ignore all those. He says daas Torah tells him there’s only one opinion that matters and you can’t argue because, well because it’s daas Torah.”

    [YA – As a firm believer in the notion of da’as Torah, I can nonetheless agree that the single largest threat to the idea of da’as Torah is the misuse (and recent broadened application) of the term]

  12. dr. bill says:

    One of the most powerful and dangerous and indespensible tools for a posek is to say – previously the circumstance was X, but given circumstance Y we must do/allow/encourage/permit this or that. It has beeen used in many contexts by gedolai hamesorah, almost always with some degree of controversy. Additionally, the motivation to use a changed circumstance as a basis for valid change within the halakha, leaves the posek/psak vulnerable to attack as well. Eilu ve’eilu often applies to such disagreements about the validity of changed circumstance.

    two brief examples: 1) tea is tavlin. does finely cut tea, make it me’kalei habishul? 2) women ought not be taught Torah. does the modern world where women receive a general education outside the home change that? i could go on and on with dozens of similar examples. Some are clearer than others, but ironclad rules are elusive. Often one’s judgment about the posek is the only basis that carries weight.

    Notions like “chadash assur min hatorah,” or the notion of “breitah plaitzes” should be understood in this context. These notions are better thought of as not halakhic but as meta-halakhic assertions.

  13. Bob Miller says:

    Garnel, genuine chumros are not the outcome of a halachic inquiry, because they are beyond the letter of the law and are followed at the option of the person or community adopting them. On the other hand, there are strict opinions that are based on halachic inquiry, and these are understood by the authorities involved to be the law itself, not an expansion.

  14. othie says:

    “or in any case served as the status quo for the past 2K years”

    someone’s bound to point out that this is not accurate for women’s prayer groups, so I acknowledge that even that is overstated.

  15. Eric says:

    “Alas, we have so few people in the yeshiva world today willing to take on any of the intellectual challenges of our generation!”

    Part of the problem is that such people quickly get defined as being outside the “yeshiva world” by virtue of that same willingness!

  16. othie says:

    “I think this is a mistake. Reasonable people can disagree as to whether these changes are horrific or welcome. The key danger is that it is a repudiation of the model of halachic inquiry with which the rest of us live our lives. We do so not just because our rabbei’im taught us as much (although that would be sufficient reason), but because the texts unmistakably speak to us that way.”

    I don’t think so. I think the key danger is that it’s a repudiation of what to do when mainstream rabbonim speak with one voice.
    One difficulty is that the degree of unanimity among rabbonim is sometimes overstated – say wrt initial reactions to Zionism or to science/torah issues, etc etc etc – with the result that when there really is broad agreement and only a few outlying opinions, among the laity there are those who look to lone opinions outside the consensus, because they have become used to viewing claims of consensus as artificial. (Of course there are those who’d look to lone opinions anyway, but I believe the problem has been exacerbated)

    kol tuv to you and i want to take the opportunity to say that I enjoy your thoughtful and well-written posts even when I find myself quibbling or even disagreeing. Yeyasher chaylcha loreisa.

  17. othie says:

    “private spiritual needs trump objective spiritual benefit of tefila betzibur”

    should read “of non-mandatory tefila betzibur” (though of course there’s also an argument to be made that it trumps tefila betzibur even for men, and this argument has indeed been made, namely that vasikin which is only a maala of tefila, overrides tefila betzibur, therefore tefila betzibur for the individual (as opposed to the requirement for the kahal to set up a minyan) is itself only a maala of tefila and so for example, kavana (which is a chiyuv of tefila me’ikur hadin) can trump tefila betzibur. If this argument is valid for men – and it’s made in yeshivishe circles as I’m sure you know – then how can it not be valid for women?

  18. othie says:

    “You will find plenty of examples of this paradigm, and plenty more to come. Over the last years, responsa modeled on it have appeared on topics like women’s prayer groups, and the ordination of women. People know which journals publish this kind of thought, and where such rabbis are trained.”

    These two examples – women’s prayer groups and ordination of women – seem like strange ones to give to contrast the approach of going through all the sources to arrive at a position vs cherrypicking sources, b/c arguments here are more metahalachic than halachic and don’t much revolve around sources. One side will point out that women’s prayer groups are not tefila betzibur and say that a rabbi setting one up or approving it is giving bad spiritual advice (lifnei iver). Another will say that private spiritual needs trump objective spiritual benefit of tefila betzibur, so women can do as they please. Is this really a halachic argument going through the stylized steps you list – on either side? You write:

    “Some people see a danger in the collected oeuvre of this group. They see a change in women’s roles that is too dramatic, too sudden, not traditional enough.

    I think this is a mistake. Reasonable people can disagree as to whether these changes are horrific or welcome. The key danger is that it is a repudiation of the model of halachic inquiry with which the rest of us live our lives. We do so not just because our rabbei’im taught us as much (although that would be sufficient reason), but because the texts unmistakably speak to us that way.”

    but if women’s issues is where it comes down to, is women’s ordination really a battle based on sources? Someplace down the line – when it comes to assigning women roles they can’t halachically do – sure. But when we are simply discussing ordination *to teach* is your analysis actually right? The arguments are about tradition and what changes can be borne, not about sources and a long list of gemara, rishonim and achronim and how they are weighed! Indeed, the problem for those opposed, whether to Women’s prayer groups or to women’s ordination, is the lack of textual sources to underline what was either taken for granted in the past or in any case served as the status quo for the past 2K years. With respect, I think it’s precisely in these areas that your analysis fails.

  19. Bruce says:

    As always, the depth and thoughtfulness of your blog posts makes for wonderful reading and even more wonderful thinking afterwards.

    Could you elaborate more on your notion of halachic rules being “true”?

    The main view of truth is the that it is a property of sentences making factual assertions, and the sentence is true if it corresponds with external reality. So “Plony has an apple” is true if in the real world there is a Plony and he in fact has a apple. In contrast, sentences making normative claims — “Do X” or “You shouldn’t do Y” — are not true or false, simply because they do not describe real world facts. Instead, they are usually evaluated as to whether or not they are persuasive. And that depends upon normative goals: goodness, holiness, reasonableness, efficacy, economic efficiency, etc.

    This understanding fits in well with your explanation of the different approaches to halacha. The traditional understanding of traditional Judaism is that it placed a great deal of emphasis on internal consistency and minimizing changes (lower-case c conservatism) and not much emphasis on making accommodations to secular ideals). As a result, it generated the system of making halachic decisions that you described. One characteristic of this system is that these decisions were often out-of-step with contemporary secular society. But that is a good thing, according to this approach, since these decision were based solely on Jewish values.

    The more liberal approached you describe do value contemporary or secular values. Today, these would include things like egalitarianism, feminism, secular knowledge and science, free inquiry, and democracy. When deciding halachic questions, these values often conflict with more traditional understandings, and are given a much higher weight in resolving the issues. So that fact that a particular scholar 800 years ago held a particular opinion on the issue is seen as relevant but not dispositive. The result is a system that has fewer conflicts with secular society. And that is a good thing, according to this approach, since secular society embodies important and valuable values.

    But your blog post makes a stronger point. You note that the traditional approach is based on determining whether these halachic rules are “true” or not. I am not sure what “truth” means in this context, and my initial. Any thoughts you have along these lines would be appreciated.

    [YA – Reb Bruce – I indeed use the word “truth” in a non-typical manner, at least from the Western perspective. See Seforno to Bereishis 24:49. Eliezer prods Rivka’s family to let her accompany him back to Yitzchok, where she will become his bride. He speaks of “doing chesed and truth.” The Seforno explains that the truth lies in having proper regard for the best interests of Rivka. He seems to suggest that holding true to preexisitng principles of behavior is “true,” while deviating from them is false.
    You contrasted two of the halachic approaches I discussed, and shown the advantages of each. You see an advantage of consistency in Traditional halacha, if I understand you correctly, and one of plasticity in the Conservative approach.
    Both advantages are pragmatic, however, not essential. It is the essential nature of halacha that I describe as halachic truth. To Conservative thinkers – and I am afraid to many on the far left of Orthodoxy – halacha is about process, but not about discovery of an essential truth that is assumed, a priori, to lie at its core. We do not follow the steps of halachic discovery because it is the Will of G-d that we do so. Rather, we expect that by following those steps we discover the Will of G-d. To the untrained observer, two halachic practitioners from the camps of traditional halacha and far-left halacha may seem to be doing the same thing, using similar texts and vocabulary. But the practitioner who believes that he is pursuing a preexisting halachic “truth” rather than following a group of protocols will approach those texts with greater depth, greater concern, and yes – somewhat more caution and conservatism.
    As several commenters correctly point out, the pursuit of halachic “truth” does not mean that there is a single, true answer to every halachic question. I hope to write more about this in a response to another commenter.]

  20. Michoel Halberstam says:

    An interesting historical fact may shed some light on why it is not so simple to speak in terms of halachic “truth” There are a number of cases in which it can clearly be demonstrated that major Poskim in the late nineteenth and twentieth centuries established a line of teshuvos whihc are matir things that were clearly not considered mutar by the large majority of earlier poskim. They did this not by finding new Girsoos in Chazal, but by using existing positions of Gedolei Haposkim which had clearly been considered by their forbears, and rejected by them, atr least to the extent that these positions were ignored. Suddenly, it was felt that the time had come to address these issues in a new way. This is what some people refer to as the evolution of halacha.

    The difference between this type of activity and what happens today, most of the time, is that the people who did this were not suspect of intentional desire to modify Judaism, they simply wanted to address a problem. In fact even in our times there are pesokim which are issued by Bona Fide Baalei Horaah which seek to address a perceived problem in a slightly different way. They can be challenged on their own terms, but one should never attack the posek in such a case. Nevertheless it happens every day that poskim who do not want to always tow the line are attacked as issuing heterodox statements (read: “kefirah”)

    I think it is difficult to continue this discussion in the abstract Because too many people will feel that their buttons have been pushed, it is hard to be specific. However, I think we can all agree that these isssues should not be simplified.

  21. Garnel Ironheart says:

    On the other hand, I could add a (6) to your legitimate halachic process:
    6) If you can’t find what you’re looking for in Toasfos, declare “Daas Torah” and implement the chumrah anyway!

  22. Bob Miller says:

    Jacob Suslovich wrote (July 19, 2009 @ 10:51 am),

    “But the Torah also has general values that have to be taken into consideration.”

    The problem alluded to in this article is that there are other general values held by not-so-Orthodox decisors, which, in fact, originate from the broader society and not from Torah. These other values can lead them to introduce undesirable subjective elements into a superficially halachic process.

  23. Jacob Suslovich says:

    You contrast the following approach “a proper halachic argument is a search for halachic “truth:” the best fit with the majority of evidence. “Evidence” means Talmudic texts, consequences that flow from them, and the positions of Rishonim (and important Acharonim, weighted according to stature and prominence). An argument is not complete unless all important counterarguments are considered and dealt with.It could not be otherwise. How could one arrive at the truth without careful consideration of all evidence, and all important voices that have considered it? ” with “Decide what conclusion you want to arrive at. This will often be based on predicting what the Jewish ethical response must be in a world that has changed so significantly from the early legal texts of Judaism, that the modern author is given much leeway.” Why are the two inconsistent if deciding what conclusion you would like to arrive at is based on values clearly favored by the Torah?
    I am not at all sure that a posek deciding a qustion of, for example, freeing an agunah who has to decide between competing legitamite views of Rishonim does not put into the mix the “ethical” value of freeing an Agunah. A Posek can not be replaced by a computer progaram who evaluates an issue based on a formulae consisting of counting the number of views on either sode of a technical issue even if they are weighted to take into consideration the relative stature of the various Rishonim, etc. The halachic process is an effort to determine what G-d wants us to do. The best way of determing that is to see what he has told us to do when he gave us the Torah. But the Torah also has genral values that have to be taken into consideration.

  24. Dov says:

    Very nice article – specifically in your analysis of intent and goals of the process seperate from the process itself.

    But I think you need to reconsider your statement that this does not happen on the right as much as it happens on the left. Consider:

    1. The degree of severity around girls wearing socks – relies on a daas yachid concerning upper and lower leg being “shok,” and general statements about how “the velt is noheg.”

    2. Prohibitions of TV or movies – the psak is always a function of what the writer thinks is best, not on reasons in sources to prohibit. Obviously there is basis to prohibit movies or TV shows with illicit content or images. But assuring the medium is always based on a general sense that it’s bad for kids (which I’m not disagreeing) and concluding from that that it’s assur.

    3. Against secular education – these psaks are always selective quotation about chochmas yevanis, and a deliberate blurring between philosophy and practical education needed to work. Assuring a BA in the Liberal Arts might fit, but generalizing from there to math and science is a generalization that is never supported, given the conclusion that they want to reach.

    I look forward to hearing your thoughts on this. Yasher Koach!

  25. Garnel Ironheart says:

    Rav Adlerstein, in your analysis of the Conservative and “new” halachic methodologies you missed a couple of steps. To wit:

    In the Conservative methodology, there is step 4.5:
    4.5) If you can’t find anything supportive at all anywhere, then hold a vote at the Rabbinical Assembly and vote that it’s permitted.

    Inthe “new” halachic methodology, there is also 4.5:
    4.5) There is a positive injunction to be happy. God wants us to be happy. This innovation will make us happy. Therefore, the aseh of being happy pushes aside whatever lo taaseh we’re concerned with.

  26. JR says:

    R’Adlerstein,

    In reality, the problem here is not in your statement of “It sees halacha as an ongoing search in every generation for what we can guess G-d wants of us. Our educated guess is based on the sum total of all human knowledge, importantly including the collected Jewish wisdom of the past.” That IS what halacha is. See the debate over organ transplantation and brain death, as an example where several decisors can come up with diametrically opposite conclusions in a matter as weighty as life and death. All knowledge is taken into account.
    The real problem is our innate inability to accept any left leaning decision, AND DECISOR, as valid even if we do not hold by it. But we seem to have much less problem accepting any stricter decision AND the decisor as acceptable, even if we personally view it as crazy and don’t hold by it.

  27. dr. bill says:

    A very important and thought provoking post; four comments:

    First, your comment on Prof. Lieberman and Rabbi Feldman is really damning with faint praise. You write: “There were certainly figures in the Conservative world – Saul Lieberman, David Feldman – who did much better.” To compare them to those who allowed driving on Shabbat is insufficiently respectful.

    Second, you underemphasize the mimetic and overemphasize the conceptual element in the work of some major poskim. One anecdote concerning RMF. On a famous psak where RMF makes a mimetic argument, explicitly mentioning the psak’s observational consistency with practice in Lita, RMF brushed aside criticism of his logic, by asking: was the psak correct? It was, and he viewed the relevance of the conceptual disagreement as secondary. Of course, I do not have the audacity to claim RMF thought in these terms, but he apparently behaved that way in a number of tshuvot.

    Third, I do agree with you and believe there is strong correlation between how Torah She’beal Peh and Halakha leMoshe miSinai are interpreted and how one conceptualizes the halakhic process. However, the range of nuanced opinions even among those clearly in the orthodox camp is broad. This area is not black and white and is IMHO inappropriate for this type of forum.

    Fourth, it is important to remember the time when a rabbi speaking in vernacular language was opposed. I believe that ordination of women is a religious issue as opposed to a halakhic one. In such areas, change happens albeit slowly. I find those who oppose ordination in any form, tend to be uncomfortable with a toenet or yoetzet where their halakhic base is questionable at best. I think R. Lamm’s comments on this area were dead on! (Not that R.Lamm needs my haskama and he is not associated with as you say “where such rabbis are trained.”)

  28. Daniel B. Schwartz says:

    I think the concern to have about the third approach is not so much in the approach, but in the credentials of the posek. After all, that approach, can also lead to reaching a more stringent conclusion, as it relies to a great degree on the shikul ha’daas of the posek. This is always a problem when we try to interject policy into Halachik decision making. And we can’t avoid resorting to policy considerations when the vox populi clamors for relief. The ideal process, the traditional approach outlined by R. Adlerstein only works when the laity is so committed to that high level of honest inquiry that they will accept unquestioningly the conclusions of poskim who apply those rigorous standards. The dedication to the true result has to be such that it makes no difference if the conclusion is lenient or stringent, since there is no alternative but to live in accordance with Halacha. That fealty can come from true religious conviction or as a result of a socio-political reality (i.e. I’m not so sure that all the denizens of the ghettos of old were so pious that they would have comported themselves in so “frum” a manner given other alternatives. But choices were in short supply back then). Emancipation however, the and attendant haskalah forced the Halachik system to incorporate irrelevant policy considerations into the calculus of p’sak. The “true” result now must compete with the public’s willingness to accept it. As a result leniencies, once unthinkable, are applied since the alternative (the complete abandonment of Halacha by the masses) is worse. Sometimes, all that can be done is to preserve some semblance of the old system in the analysis of the issue and hope that in the days to come, things will get better. (A bit more protest or expressed reluctance to adopt the policy driven kula would be in order). The question is who is weighing the issues? Does the rabbi or posek in question have the learning/experience/judgment/technical or practical knowledge necessary to make a learned policy decision? Sadly, those with the requisite Torah learning are often unwilling to enter this fray, and those willing (and sometiems eager) to do so often lack the Torah learning. It’s one more symptom of the destruction of Orthodoxy happening before our very eyes.

  29. Bob Miller says:

    A parallel in industry:

    Where I once worked, there were major hurdles to getting a new project approved and funded. The would-be project leader had to submit detailed information and projections in a standard format. One of the managers, who was very adept at computation on his PC, had a great batting average in getting his proposals approved. Basically, he had figured out how to game the system by adjusting his input information as needed to achieve the desired result.

  30. Chaim Saiman says:

    R’YA
    Your recents posts on halakhic methodology are an important contribution to the way we concpetualize halakha, a conversation I think we would all benefit from.
    In that vein, I would be interested to see you review 1. Jacob Katz’s “Shabbes Goy,” 2 Haym Soloveitchik’s “Hayayim be’yemei ha’beinayim” 3. Y. Galit’s Perakim behishtalshelut hahalakha, or really any other of the many works that seriously traces the development of halakha in the post- talmudic era in its different social and historical settings.

    [YA – Let me explain to readers what is going on here. I recently had the pleasure of spending some time with Professor Saiman, and we traded thoughts about our different perspectives and interests in the area of halacha. The lines above are a reflection of his menchlichkeit and integrity. Rather than say, “Adlerstein, you may be burying your head in the sand,” he found a way to issue a challenge without hurling accusations or claims for the need of yeshivos to open themselves up at least a little to the more kosher forms of Western academic-style study of Torah. Being acquainted with only one of the three works (Prof. Katz’s), and that having taken place decades ago, I’m not the person to respond to the challenge in the short run. (Alas, we have so few people in the yeshiva world today willing to take on any of the intellectual challenges of our generation!) I will hope that some others can respond – or that Prof. Saiman will allow me a good deal of time to get to those sources, after remembering that he dropped off quite a bit of other reading he asked me to do first on classic legal theory! Maybe the next time we meet at the Philadelphia Kollel…]

  31. Joel Rich says:

    This new approach is different from the traditional, as surely as is the Conservative one. It is far more dangerous, because fewer people will notice the difference. It is nothing less than a trivializing of halachic process.
    =================
    WADR R’YA your description of the traditional model is accurate for some but not all of the historical world of psak. The “halachic heart” of the posek has for many cases been a primary contributor to the algorithm of psak. This doesn’t trivialize the process, it is a major part of the process. I suspect the real disagreement is who has a right to use their halachic heart (in addition to which cases it can be used in).

    One example from R’ N Kaplan on dolls,pictures et al. “Lmaasch a lot of people assered in the old days. Lmaaseh the minhag all the poskim say that today there is no makom to be machmir and a person even cannot take upon himself such a chumrah before he is yarei shumayim bchol kocho, and is mdakdek in all the different chumrah’s”

    She-nir’eh et nehamat Yerushalayim u-binyanah bi-mherah ve-yamenu

    KT

  32. Mike S. says:

    I agree with you that this mode of halachic thinking is dangerous. I do not agree that it is only, or even primarily, to be found on the Left. There is far more written on the Right demanding that a shitah dechuya l’chumra become normative than about women’s role on the left. One can consider ever increasing stringencies in tzniut and gender separation, the ever widening definition of k’firah, the need for advanced scientific instruments to search for bugs, or the growing gap between the size of a k’zayit after which we must make a bracha acharona and the k’zayit we need to eat on Pesach.

    [YA – I agree that at times it can and is just as much a threat to the integrity of the halachic system, and have heard the same from people on top. I am optimistic, however, that those who maintain a rigorous and deep involvement with Torah learning in depth eventually will wake up and remember what is ikar ha-din and what is beyond. I cannot be as sanguine about the Left.]