Sarah Palin and the State of Halachic Discourse


Last week, Sarah Palin went from looking very bad to looking very victimized. How and why that happened may shed some light on the conduct of an internecine dispute in progress on organ donation and halachic criteria for ascertaining death.

Angry fingers pointed to Palin in the aftermath of the Tucson shootings. Her map had targeted – literally – Gabby Giffords. Moreover, the rhetoric of contempt churned out by the political right had surely contributed to the climate that produced the killer.

Or so they said, “they” being the expected critics, like the New York Times and Keith Olbermann. Within a short period of time, it became clear that the shooter dwelt in a fantasy world in which the government exercised mind control through bad currency and conniving grammar. The books he read were not screeds of the political right. He didn’t pay much attention to popular media.

Palin, like her or not, could not be blamed for this one. Her critics lost the moral high ground, and looked like shameless opportunists. Their initial attacks on her were so off-base, that they left room for people to wonder whether the critics were driven more by desperation than by unvarnished malice. Unable to come to grips with an America in which Palin and the Tea Party could be seen as ascendant forces, these critics seize for themselves the moral license to stop at nothing to quash their opponents. If you can’t convince them, then whipping up popular hysteria against them is the next best thing.

The Orthodox community has more at stake in the so-called “brain death” controversy than in the etiology of Jared Lee Loughner’s delusions. Rabbi Dov Fischer discussed some of the issues in an earlier piece on Cross-Currents,
including the impropriety of an online petition in favor of the “brain death” criteria. Rabbi Fischer correctly bemoaned the fact that a group of rabbis would be setting fires of public criticism of the Torah community, rather than putting them out. (By way of contrast, a friend of mine was asked by a leader of a state legislature about Orthodox attitudes towards organ donation, having read some disturbing material in the popular press. My friend, who has good background in both the halachic and medical aspects of the issue, sat down with the legislator, and explained the traditional point of view, after which the politician “got it,” without rancor or resentment.) I would go further than Rabbi Fischer. Calling a position that is embraced by rov minyan v’rov binyan of serious halachists “morally untenable” is nothing less than morally untenable!

Beyond the ill effects of this petition, I believe it to be hashkafically still-born. Halacha has to be decided by halachic debate, not be popular acclaim. The RCA report was put together painstakingly by a group of fine young talmidei chachamim, who did their due diligence in preparing the sugyos, studying the medical issues, and interviewing key personalities. Halacha thrives on – insists upon – debate. Those who champion neurological criteria of death rather than cessation of cardio-pulmonary activity should point to any errors they see in either the lomdus of the other side, or its grasp of the medical realities. An online petition offers none of this.

Moreover, scanning the list of signatories, we find many fine pulpit rabbis, but no names at all associated with the serious conduct of halachic debate. What, exactly, does it mean when someone signs a petition affirming the validity of a halachic position when he is not in a position to either defend or critique it? (The starting lineup at the MLB All-Star game is determined by the input of pros – the managers and players – and popular sentiment. This is defensible. But would it make sense for the fans at Fenway Park to vote for Nobel laureates in chemistry?)

At least one of the better known signatories opens a window to his mind, in a letter he sent out to a mailing list. “We have received a good deal of press, which will hopefully do some good in shaping the public perception of the permissibility and mitzvah of organ donation…Please urge your local rabbi and other rabbis that you know to consider signing on as well. … You can be part of this important effort to change the community’s perception and to help save lives!”

Will we see popular campaigns and petitions that will militate to accept minority opinions, or decide between disputes between Rishonim, in other areas? Shall we place conversion standards, or women’s hair covering, or even the acceptability of sherry casks in the docket of popular opinion? Is this the way halacha is done? Do people who would like to see lenient decisions in some of these areas wish to see the demise of halachic process as we know it?

I pose the question with more pain than facetiousness. I do not believe that there is a campaign afoot to destroy halacha from within. I do, however, believe that the Orthodox world has already split into two camps regarding its assumptions – in some cases, I would be charitable and suppose that they are unconscious assumptions – about halacha. I also believe that when they cannot marshal enough traditional halachic strength to win an argument that they get desperate, just like Krugman and Olbermann.

I have written about these two camps elsewhere. Briefly, the process of halachic decision that we see in centuries of response literature is a search for evidence. Halachic arguments, which require a good deal of background to formulate in the first place, are not accepted unless they can be supported by evidence. When competing arguments are presented, we try to weigh the evidence. (We will require less evidence to satisfy ourselves regarding a rabbinic law than one that is d’orayso; we will require the most evidence in the weightiest matters – like organ donation, where taking an organ too early is a violation of the stricture against murder.) This was always called “birur” and “leevun” of halacha – for good reason. You arrived at a conclusion by way of best-fit with the internal evidence of the sugya.

We see in an increasing number of articles and blog posts a very different process. There are rabbis – never ones who have demonstrated stellar understanding of complex source material – who believe that halacha is about process, not finding truth. All halachic “voices” can be heard, so long as what they say is couched in the language of rabbinic source material. Once they are heard, each local rabbi decides on the basis of perceived need and his own understanding of overarching morality which voice should be heeded. I underscore that the voice heeded is chosen through external need, not though the internal consistency of that voice. (Ironically, when advocates of this approach cite their minority opinions, they remain oblivious to the fact that the authors of those opinions did try to the best of their ability to demonstrate the attractiveness their positions by adducing evidence from within the sugya!)

I believe that this approach is dangerous and counterfeit. Many of its advocates, not surprisingly, come from Orthodoxy’s far left. They are overrepresented as well on the petition. If I am correct, it may make it easier for those who have to decide whether or not to keep the YCT/IRF/far left axis within the Big Tent of Orthodoxy, or whether it is time to civilly show them the door.

In terms of the way they conceive of halachic process, they may have already walked out on their own.

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52 Responses

  1. noam stadlan says:

    Thanks for the remarks. I am not privy to the inner workings of the RCA, but from what has been conveyed to my by a number of sources, the issue is as follows: In 1991 the RCA Va’ad (I think it was the Va’ad HaPoskim) voted about brain death and there were votes on both sides. Therefore both circulation and brain death were and still are recognized as options by the RCA as reflected in the RCA living will(available on the RCA website). From what I understand, there have been those who have tried for close to 20 years now to undo that decision and revoke the acceptance of brain death. The paper put out by Rabbi Bush fits with this agenda. The most accurate title for it would be: “All the reasons we can think of to oppose accepting brain death.” I invite you to read all 110 pages, and my review, and again I will be happy to address any questions or concerns. This is not to say that opposing brain death is wrong. I very much respect the poskim who hold that view. In fact I have great respect for the authors of the report. But that doesn’t change the fact that they are attempting to influence the minds and hearts of the RCA membership in a particular direction. The biggest problem is that they presented the report so that the casual reader would not realize that it had an agenda. The paper is not a dispassionate citations of facts with some conclusions. It was written so that the reader would come to a specific conclusion. If it was labelled as such, there wouldn’t be a problem. Because it was presented as an open-minded search for truth, was necessary to make sure that the readers of the paper knew that it was biased.

    Regarding the second issue, if you are thinking of going to college, and ask a posek what he thinks, you will get a lot of different answers. Those who do not value college will probably tell you not to go, and instead go to kollel or get married. Those who do value college will tell you of course you should go. There is no way the two poskim will ever agree, as their underlying values are too far apart. Similarly, there are poskim for whom it is important to know why the Chatam Sofer wrote what he did, and under what circumstances. It is also important to them to know the medical assumptions of the gemara and Rashi. There are other poskim who would put a lot less value on that knowledge, and focus more on the specifics of what was said and written. Therefore, it is not likely that the poskim will arrive at agreement. I think there is a lot of hashkafa and methodology in psak that underlies this halachic debate, and it is something that has not been readily recognized.

    [YA – I have reason to believe that the Vaad in the near future will be offering some sort of answer to critics or clarification of their intent. Perhaps, instead of going more rounds here, we all wait to see what they have to say.]

  2. Miriam says:

    A Rabbinic proponent of brain death was recently taken to task on other blog pages for his approach that for all this time Rabbinic science has been in complete error regarding criteria for death. No longer killing lice is one thing, discarding longstanding criteria for murder is another. (Generally poskim who discuss this, the blog writer claimed, look for brain vs. heart death within the halachic statements of the existing sources, they don’t just cross out sections in their gemaras!)

    As neither Rabbi nor scientist, I can only remark on the posturing I see from the outside. When one of the bigger petition Rabbis goes public with the blanket declaration, “…brain-stem death constitutes halachic death; our rabbis don’t have the necessary background to understand it….” I only wonder where the emunas chachomim is – in other words why does he attempt to negate the validity of any active posek’s involvement in the matter? Because I may be an outsider to this issue, but I know full well big poskim (and responsible shul Rabbis) don’t just pull a psak out of a hat – much consultation goes on both to gather facts and to confer regarding halacha.

    While I certainly haven’t surveyed the shu”tim out there, there don’t seem to be many heavy-weight poskim (i.e. Gedolim) who have unequivocally gone on record in complete favor of brain stem death. Maybe because the definition is very precise and narrow, and a definitive, general psak would cause very ignorant public application and therefore ch”v murder by all opinions? Or maybe because as some poskim have said, safek deoraita l’chumra. I certainly don’t know.

    If the need to go to the Jewish Week was because access to Gedolim/poskim was prevented, it isn’t the first time this secular paper was used to reveal otherwise concealed information to the Orthodox public. But in order to merit that assessment, I’m not sure whether calling the RCA report “biased” is the ticket, as much as claiming that they are stonewalling a debate that should otherwise remain unresolved.

    Even your own remarks could go either way:
    (1) “Since the paper was designed to assist rabbis in their decision making, there were few to no other options to channel accurate information to those rabbis.” In other words, due to one-sided stonewalling in the Rabbinic sector, we want to encourage pulpit Rabbis and their congregants not to assume one opinion out there but rather they should confer with poskim with expertise on the matter – don’t reach a conclusion based on this one paper.

    (2) “It seems that we have a basic disagreement on the value of science and logic in Halacha, and my guess is that this is a hashkafic divide that is not easily bridged.” In other words, the two sides have a fundamental difference that can only be settled by bigger, perhaps visionary Rabbanim. I’ve picked mine, you pick yours.