Halachic Decision Making in Extenuating Circumstances (Part 1 – Halachic Methodology Part 9)

From my perspective, this is one of the most important topics for understanding the nature of Halacha.  As Rabbi Moshe Taragin says often, to understand Superman you need to understand Kryptonite.  Similarly, understanding the cases under which normal procedures of psak change, i.e. the parameters of psak in shaat hadechak (extenuating circumstances), helps one understand Halacha.  The shiur and sources are available: here.

To begin with, it should be taken as a given that under certain circumstances, we rely on positions that would not be relied upon in general.  This is problematic philosophically, as Divine law should be applied consistently, if one believes that Divine values are incommensurate with human ones.  If Halacha bends nonetheless, this can only be because God has built into the system a level of flexibility because He values things other than strict interpretation of His law.  We will discuss what those values are in future weeks.  This is the subject of much of Mori VeRabi, R. Aharon Lichtenstein’s article: here.

From a philosophical perspective, one might think that the ability to rely on minority positions depends on whether one believes in multiple truths or not (discussed: here and here).  If you do, then rejected opinions are still “true”, and can be pulled out when necessary.  However, Rabbi Michael Rosensweig notes this is not the case (here).  If one believes that there are multiple truths, it is the process of psak that eliminates those as live options.  Once the system has rejected it, it is not obvious is can be relied on, even if it has a kernel of truth.  On the flip side, one might not want to rely on rejected positions if he thinks there is only one truth, as the rejected position is presumably false.  However, one can equally claim that there is a truth but we are bound to emet lehoraah, procedural truth, and just like we don’t worry about reaching the ultimate truth in general, we don’t worry about it beshaat hadechak.  Either way, it is process that allows rejected opinions to remain options when necessary.

As a theoretical structure, Rabbi Aharon Lichtenstein suggests that any position one thinks is 100% false is closed no matter what.  In general cases one relies on the position one thinks most likely.  However, when there are external pressures, then one has to make  a decision balancing how unlikely a position is with how strong the external pressure is to rely on it.  Ex. – if one thinks two sides of an issue are 51% and 49% likely, it will take very little pressure to rule like the latter possibility.  If it is 90-10, the pressure has to be very strong.  See his article above.

The Gemara in several places (ex. Niddah 9b) sets the parameters for ruling on rejected positions.  It can only be in a case where “lo itmar hilchata” –the issue is not closed.  What it means for an issue to be closed can mean many things.  At one extreme, it can mean that only things explicitly ruled on in the Talmud are closed, but any position ruled on based on klalei psak, even in the Tanaaim, is open (Or Zarua, Taz).  One can push this farther to the Talmud (Chacham Tzvi), or farther to anything decided by “the poskim” (Chazon Ish’s official position, though in practice his own psak seems to differ from this).

The next issue is to determine what position is legitimate.  Shach says any position ruled by Rov is absolute.  Bach argues.  Presumably, he thinks that rov is only in a case of Sanhedrin (where there is a formal vote).  He may also think that determining rov across generations is impossible because so many positions were never written or were lost (R. Yaakov Emden and R. Yonatan Eibshitz).  Bach, however, thinks that when a great chacham rules against a lesser one, the lesser position is rejected.  Shach argues.  There is a similar discussion concerning the position of a student when his teacher argues.

Shach and Bach also dispute whether these rules only apply by rabbinic laws (Shach, and R. Shachter) or even by biblical ones (Bach and R. Lichtenstein).

We will flesh out the details in future weeks.

I noted that these rules must only be used as exceptions and when the coutner pressures are accidental (we will return to this).  When one posits that a Halacha per se violates a meta-value, or uses these rules for all halachic questions, he shows no consistency or integrity, and that reflects an inauthentic approach to Halacha in general.  We will focus on this next week when we discuss the legitimate and illegitimate uses of kavod habriyot.  This has obviously been the basis of much recent controversy, and my rejection of certain rabbis positions is based on their gross misuse of the principle.

For helpful summaries of some of these issues, see:

• R. Rosensweig’s article on Eilu V’Eilu
•  R. Lichtenstein’s article “Mah Enosh”
•  R. Helfgot’s article in Milin Havivin 4
• עין יצחק – אות קלז
• שדי חמד מערכת כ אות קט-קי
• שעת הדחק כגורם בפסיקת ההלכה- הרב נתנאל הלפגוט
• כללי הוראה בהלכות מסופקות – הרב אלישע אבינר