Monthly Archives: February 2014

Balancing Education, Rebuke, and the Fear of Causing Estrangement

Rabbi Daniel Mann just posted a very sensitive teshuva (here) about a secular Jew whose religious relatives are worried that the more he learns about Judaism, the more likely he will lose his tinok shenishba status and become a Rasha.  I encourage reading his teshuva.  One point that jumps out at me is the inherent tension created by the obligation to educate (or rebuke).  By educating, we provide opportunities for religious growth, but at the same time, we remove the excuse of ignorance from those students who choose to willfully ignore what we teach.  At face value, this flies in the face of the principle mutav sheyiyhu shogegin, it is better that willful sinners remain accidental sinners, a principle that under certain circumstances allows us to refrain from rebuking.  However, it is clear that cannot be the case.  As a community, our goal is to educate and improve the members of our community.  We cannot be held hostage by the possibility that people will choose, despite knowing what is right, to do what is wrong.  Mutav Sheyiyhu Shogegin by definition must therefore be limited. Continue reading Balancing Education, Rebuke, and the Fear of Causing Estrangement

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Slippery Slope 3 and Some Thoughts on Globalization in Halacha

One of the questions that has come up several times in the last few days in discussions about the nature of the Slippery Slope Argument and the Halachic process in general is how do we balance the needs of the individual in the context of a community.  This is even more difficult considering the globalization of our community.  I cannot here flesh out the issue entirely, but I just put together a few comments that have been made, and hope to return to the issue in more detail.  Continue reading Slippery Slope 3 and Some Thoughts on Globalization in Halacha

The Slippery Slope Part 2

Thanks to everyone for the feedback on yesterday’s post, which requires a follow-up.  R.  David Wolkenfeld pointed out that R. Yuval Sherlow wrote a piece on the parameters of “The Slippery Slope Argument” (available: here) that makes significant additions to my discussion.   I will try to summarize some of the issues that he raises.

He notes that when deciding whether to make a Slippery Slope Argument, the rules that Chazal set up try to take into account:

1) The likelihood that the sin will be transgressed if fences are not put up.

2) How negative the sin being protected is.

3) Taken together, we then have to determine the cost of setting up the fences.  Meaning, considering how likely it would be for the sin to be transgressed and how bad that would be, we have to consider whether the particular fences being proposed are worth it.  This is true on two levels – too much stringency may make Halacha unbearable and cause people to give up on this Halacha entirely or it might otherwise negatively affect the people involved to an egregious degree.

He compellingly brings several Halachic principles to bear on each of these issues.  I will mention his categories and some main points he makes on them (with some of my own).  Please see his article for more details.

1)      אין גוזרין גזרה על הציבור אלא אם כן רוב הציבור יכול לעמוד בו – we don’t set up a decree if the majority of the community can’t handle it, and in fact, it automatically becomes nullified.

  1. This indicates that if the cost on quality of life is so high that people can’t handle it, the safeguard is illegitimate.

2)      אין גוזרין גזרה לגזרה – we don’t set up safeguards to safeguards.

  1. While this principle is often circumvented, it principle it highlights a few things:

i.      The safeguards are not worth protecting, or in other words, we don’t want to make everything assur just to set up infinite protection for actual issurim.

ii.      If the possible result is several steps removed, the chance is considered low that the negative result we really fear will come about, so we don’t expand the prohibition (my addition).

iii.      If the danger is real, this rule can be circumvented, either by declaring that really we are dealing with one expansive gzeriah, or by saying that in certain cases we are allowed to set up multiple levels of chumrot.  The danger can we significant either because the sin we want to prevent is very serious, or because it is very common (quantity/quality of the sin).

  1. For example, the Kesef Mishna claims that by Niddah we can set up gzeirot l’gzeirot.  Similarly, the Ramban and others say this is what is happening by all the levels of issur set up to prevent intermarriage.

3)      Chazal don’t set up gzeirot for issurim which are not common

  1. This indicates that if the chances the issur will be violated are not significant enough, we cannot justify setting up new issurim.

4)      If we have an alternative method that doesn’t hurt those who would be hurt by the new issur, we choose that one.

5)      The kulot we employ because of hefsed merubeh, or the cases when we choose not to set up chumrot because of hefsed merubeh, indicate we try to avoid the cost when it is too high.

R. Sherlow notes, however, that figuring out when the cost is too high is difficult, and thus it is hard to always judge accurately.

A few other points that I have been thinking about, mostly in response to some very insightful questions by Deborah Klapper:

  • Admittedly, any slippery slope argument makes assumptions about what most people will end up doing if a safeguard is not set up.  This means that there can be people who will face prohibitions that they don’t need.  This is the hard reality of legal systems.  However, it is something that must be taken into account when setting up a fence – is it worth inhibiting those people who could have avoided the real problem without the safeguard, and whose lives are therefore more difficult?
  • When we talk about arguments such as those of R. Moshe Feinstein – those that are both fundamental and slippery slope, we have an added problem.  To take his case, I assume he did not think that every woman who wanted more opportunities was attacking Torah – he just thought a high enough percentage of women had problematic attitudes that he had to oppose the practices that encouraged those attitudes.  This will obviously be difficult for those women who are sincere, making it important for the posek to weigh his decision more carefully and be really careful about how he phrases his decision.
  • Poskim make mistakes in assessing metziut.  One need only look at the debates as to whether a number of given fruit are infested with bugs are bug-free to know that even on relatively innocuous questions the realia is hard to assess.  Kal VaChomer when it comes to predicting the future or correctly reading people’s minds.
  • A posek has a choice whether to make a local decision or a global one, and the complexity of the above issues should factor into which he makes.
  • A posek also has a choice as to make a decision at all or just to set up guidelines.  For example, some poskim, when ruling on a medical decision will consult with doctors, make an assessment of the reality, and then poskan.  Others will present the patient and/or doctor with the halachic parameters and allow them to make the decision as they understand the reality.  The same options exist when it comes to these issues.  However, when making community wide decisions, a posek may have no choice but to make up his mind about the reality as well.
  • With all of the above, I don’t know what to say if one thinks the reality has been read wrong.   I really don’t know what to say so I won’t presume to guess.  And yes, I am evading relating to the Gemara that R. Klapper thinks is the most dangerous to the notion of psak.

I understand that these issues and not just theoretical but very practical.  For that reason, I am even more careful not to say anything definitive, but rather to try to understand the factors the best I can.  Thanks for the feedback and the opportunity to sharpen my thoughts.  I am still in the process of formulating my opinions.

The Slippery Slope Argument… (Halachic Methodology 17)

One of my chavrusas asked me whether I thought the “Slippery Slope Argument” was a legitimate one in Halachic discourse.  I answered in the affirmative and this shiur was my attempt to weigh in on why that is.  Considering the frequency of this type of argument in modern discourse, against my will, this is a sort of foray into Jewish politics.  I hope everyone will forgive me.  The shiur and sources are available here.    In this shiur it is important to read the sources as I purposely did not directly address many of them.  I provided a framework, and then some reading material from the last few weeks that I thought was relevant.

First, a definition is in order.  The “Slippery Slope Argument” asserts that X is problematic because it will lead to Y.  In its fallacious form, it asserts that X will inevitably lead to Y, without explaining all the intermediate steps.  However, if one successfully shows how X leads to Y, it is a valid argument.  Alternatively, and this is more relevant for our discussion, one can claim that X could or is likely to lead to Y, and as a precaution X should be avoided.  Some have claimed that any form of the argument fails because it relies on consequentialist rather than inherent moral objections, but as we will discuss, I think Halacha does not object to such arguments.  In fact, pragmatism would dictate that it is legitimate to oppose things on practical rather than fundamental grounds.

Chazal definitely saw it as legitimate to set up fences to prevent potential Halachic problems.  This in fact is one of the opening statements in Pirkei Avos – “Make a fence around the Torah.”  In the Gemara, this is also described as Asu Mishmeres LeMishmarti – safeguard my laws.  Many sources are provided throughout Chazal, and several are included in the source sheet.  R. Yonah, and many others who follow him, argue that at some level, these fences are greater expression of yirah than the mitzvos themselves, as one shows he is not even willing to come close to sin.  The Magen Avos notes that every generation can set up their own decrees to protect the Torah.  The Rambam in fact rules that any takanah or even minhag set up to protect the Torah is binding under לא תסור, the general obligation to listen to rabbinic authority.

However, there is a danger.  In Avos D’Rabbi Nosson, and in the Midrash, it records that Adam told Chavah that Hashem forbade touching the Eitz HaDaas, when he had only forbidden eating from it.  This allowed the snake to trick her – showing her that touching the tree did not cause death, he claimed that eating from it would also be fine.  The Midrash notes the lesson:  don’t let the ancillary concern be conflated with the real one.  In other words, when you set up a fence, make sure you don’t pretend it is fundamentally problematic.  That will cause a devaluation of that which is really important.   Avos D’Rabbi Nosson even uses this example as its paradigm of a syag, presumably to highlight the dangers of exaggerating the problems of syagim through irony.

The Rambam thought this type of deception was a violation of the prohibition to add to the Torah.  He argues that the rabbis can make decrees, and what distinguishes that from lo tosif is that they are clear to distinguish between rabbinic and biblical laws.

However, there is another perspective.  The Maharil suggests that an asmachta, a possuk provided to substantiate a rabbinic law, is actually meant to cause this type of unclarity, thereby protecting the rabbinic law from being undervalued.  At some level, this perspective makes sense – conflating the different levels will cause those who are only scrupulous for more stringent laws to keep even the syagim, ensuring they never approach the biblical law itself.  However, as shown above, it also causes problems.

These two perspectives came to a fore during the schismatic battles in the nineteenth century.  In response to the Enlightenment and Reform, two general approaches developed (forgive the overgeneralization).  The German school sought to modernize where it was legitimate to show that Halacha could engage modernity, but shows the limits.  The Hungarian approach, with the Chasam Sofer at the head, fought to commit with even greater tenacity to every part of tradition.  As part of this approach, he encouraged protecting every minhag as if it were a full-fledged law, and often found creative ways of explaining why this was so.  Some of his more radical students eventually took this to an extreme, issuing the “Pesak Din of Michalowce” in which they argued that most of the innovations by the orthodox in Germany were forbidden according to the letter of law.  This went too far for even then to-be-leader of Hungarian Jewry, the Maharam Schik.  He argued that to defend minhag was correct, but pretending it was Halacha was a violation of bal tosif as the Rambam formulated it.  Michael Silber has written a fascinating article on this time period, part of which is included in the sources.

Thus, you see the two perspectives coming out in practice – when the tradition is under attack, is it then legitimate to blur all lines between custom and law, or does one still have to maintain honesty and defend the legitimacy of custom and law on their own terms.  Suffice it to say, much of the arguments in our community center around this debate, ודי לחכימא ברמיזא.

Coming back to the general issue- what types things can be prohibited because of the slippery slope?  Obviously, there are local prohibitions that can be instituted – forbidding chicken and milk so that one does not eat meat and milk.  However, there are other things.  Rashba argues that when you see a weak generation who looks for leniencies, one should not go out of his way to be lenient.  This is a general approach which acts as a fence – when observance is lax, don’t be dishonest, but have a proclivity to be stringent.  Rabbi Dr. Judah Goldberg notes that the Gemara encourages poskim not to be lenient on too many things, even if they think they are all permitted.  Having a posek who is seen as always lenient itself leads to the weakening of halachic commitment and respect for Halacha.  The Gemara also forbids permitting things to those who treat them as assur (because of minhag).  All these stress that we don’t only set up local fences – but we try to create an atmosphere that protects the Torah.

A modern contention that was championed by R. Moshe Feinstein is that we should not allow people to engage in actions that could be neutral or even positive if the intentions are bad and belie a problematic attitude towards Halacha.  R. Moshe therefore opposed innovations that were driven (solely?) by feminism because it (often?) stems from a conviction that Hashem/Chazal were flawed/misogynistic, etc.   This argument is a combination of a fundamental and slippery slope argument.  The fact that it could lead to the collapse of Halacha indicates that the attitude is inherently problematic and should not be allowed to instantiate itself in action ever.  R. Schachter in many of his pesakim has followed this approach of R. Moshe.

There are technical problems that have often been raised to the above claim, such as people should not judge the intention of others.  However, I think that poskim have no choice.  One may disagree with their understanding of the reality, but there is no escaping the fact that psak includes making calls about realia, including the psychology of the community.  If they do make the choice to make that call, one should realize that their arguments are serious, and at some level, more important to them and the community than local arguments.  In my sources I include brief citation from R. Henkin and R. David Wolkenfeld’s comment on it.  You will see that many of the issues mentioned above are relevant to understand what drives them.  The same can be said of the psak of R. Schachter and the reaction of R. Katz that I include.

I think Joel Rich really summed up many of the issues in his comments:

There are many things in my understanding that are not 100%assur but varying shades of grey. As avi mori vrabbi zll”hh would often say, “Just because something is permitted doesn’t mean it’s a good idea.” I think the whole guf naki thing is a red herring. The meta question is who will make the call for which community. I don’t know how history will paskin, but I have a greater understanding of how early observers of Chassidus and Conservative Jewry must have wondered how the scales would tip.

The questions being dealt with are 1) When is it legitimate to ban things that might be technically mutar?  2) Who gets to make the calls on when it is time to make those bans?  3) When the bans are issued, how can one have to frame them – as slippery slope arguments of varying sorts, or technical halachic issues?

One last point – even if it were once legitimate to conflate different levels of problems, in an age where anyone can look up the issues online, on Bar Ilan, and the like, I just don’t think it is a good idea.   People will figure out if you’re trying to trick them.  If you think it is assur, explain why.  Don’t use a smokescreen if the argument you want to make is really a form of the slippery slope argument.   It’s a good argument – you just need to explain why.  I may have already said too much, so I’m going to stop there.

Yuhara (Halachic Methodology 16)

There has been much discussion recently about the issur of Yuhara, of acting with spiritual arrogance.  The issue is quite complicated, but I tried to summarize some of the main issues.  The shiur and source are available here.

The Gemara in Berachos and Pesachim presents a dispute as to whether a newly married man, who is exempt from Shema, is allowed to say Shema if he wants to.  The Rabanan permit it while R. Shimon ben Gamliel forbids it.  The Gemara first suggests that they dispute whether we forbid people from acting in certain ways because of Yuhara or not.  However, it notes that there seems to be a contradiction.  The Gemara rules that in a place where the custom is not to work on Erev Pesach, Talmidei Chacham should not work.  R. Shimon ben Gamliel permits anyone to act like a Talmid Chacham and not work.  Here, as opposed to the case above, the Rabanan seem to worry about Yuhara and R. Shimon does not, creating a double contradiction.  The Gemara suggests two resolutions: 1) The names in one of the disputes are switched.  2) The Rabanan worry about Yuhara when you are doing something different than most people.  Thus, in the case of Krias Shema, the groom is simply joining the crowd so there is no Yuhara.  In the case of the Melacha, the person is standing out.  R. Shimon, on the other hand, says that in the Shema case, the only reason he would be saying Shema is because he claims, against all odds, he can have kavana.   That is Yuhara.  In the Melacha case, people will perceive him as simply having no work to do, so there is no problem.

The Rambam and Rif rules that one can say Shema.  The Beis Yosef explains that they understand like possibility one, and conclude that R. Shimon rules that there is not a problem of Yuhara and rule accordingly.  Tosfos and the Rosh rule that it is forbidden, like the Chachamim.  Lehalacha, however, they think that no one has kavana in general, so a groom is not worse than anyone else and can say Shema.  This is accepted in Shulchan Aruch.

Yuhara is also found in Bava Kama, where Eliezer Zeira is punished for mourning excessively for the destruction of the Beis HaMikdash, until he proves that is in fact a Talmid Chacham for whom such actions are befitting.

In Taanis, the Gemara records a dispute whether people are allowed to fast on the fasts for rain set aside for scholars or not.  One position rules that they cannot as it is Yuhara.  The other position (R. Shimon ben Gamliel) says there is no problem of Yuhara when the action being accepted is painful.

Many explanations for the problem of Yuhara are suggested.  For example:

1)      Arrogance (Rashi)

  1. This could be internal or external – either he feels arrogant or shows arrogance.

2)      It caused discord with others (Rashi)

3)      The person is separating from the community.

4)      It is presumptuous – the person is acting as if he belonged to a higher class than he actually does.  This is more formal than mere arrogance.  (See below, and Prof. Woolf’s piece).

  1. This is indicated by the lashon of the Gemara – a person cannot make himself like a Talmid Chacham.

5)      It impugns others – related to 4.

  1. 4-5 do not require negative intentions, while 1 does.

Some of these overlap, and I will not try to flesh out in this summary all the differences between them or the proofs for each side.  The most obvious implication: Does one violate in private?  (Internal arrogance, perhaps a formal presumptuousness – yes.  The others, no).  For this, see the Yam Shel Shelomo and Yerushalmi.

R. Lichtenstein favors the formal explanation – you are taking a status you don’t deserve.  If so, he notes that if one does belong to the class of Talmidei Chachamim, one would be obligated to be machmir.  This is the position of Taz and others in the case of the fasts for rain.

Mahari Bruna seems to go in this direction as well, if you read his language.  See also Prof. Woolf’s piece:

Jeffery Woolf: 2) There has been much discussion of the description of women who don Tefillin in public as being guilty of מחזי כיוהרא. This phrase does does not mean ‘appearance of arrogance,’ but of being presumptuous (just as מחזי כמבשל doesn’t mean cooking, but appearing to cook which will lead to people suspecting one’s actions or possibly leading one to cook). Demonstratively practicing a mitzva that one is not obliged to do, according to Tradition, impugns others who do not do so. That, for example, is why R. Israel of Brunn (Resp. Israel Bruna no. 96) forbade wearing one’s tzitzit outside of one’s clothes. The category has ABSOLUTELY NOTHING TO DO with the questioning the motives of the individual. It does question the sensitivities of the individual who is ipso facto making a statement about others who do not accept their new practice. Did anyone ask other women if they are put off by women putting on Tefillin, with the implied judgement that they are less spiritual or less committed?.

3) For the same reason, there is more reason and room to allow women to wear Tefillin in private, not because it is wrong (necessarily), but because doing so keeps their act of piety pure. That is true of every Humra, and rabbis should condemn people who use any personal Humra for self-aggrandizement.

4) I am stunned by the persistent, superficial equation of Black Hats and Tefillin. Yes, black hats are frequently arrogant displays (and prove my point about מחזי כיוהרא).  However, wearing a hat has no religious significance, though it is socially significant as a sub-group marker of identity. Adding religious obligations (whatever the legal mechanism in force there, נדר or חובה) is a deadly serious question. Those who dismiss it in the name of spiritual self-fulfillment only show that they are insensitive to the long term issue of sins of omission, when these same women may not be able to maintain their newly found personal obligation. And the reply that there are men who aren’t fastidious in their observance is myopic. Since when do we justify religious lassitude by pointing out that of others?

 

Another issue is whether it is better or worse if one is part of a small group – see Shvus Yaakov.

Rabbi Daniel Goldstein notes that the Rama believed one could even be forced to rely on kulos (such as bitul), or even less than intuitive shitos (such as davening before nightfall) if one was not of the caliber where he should be machmir.  On the latter point, however, the Achronim challenged Rama strongly, as one is allowed to keep normative Halacha without concerns for Yuhara.

This issue is quite complicated, but I tried to outline some of the issues and sensitivities involved.  I think that it is a category that should be taken seriously, and not only when it suits our political needs at the moment.  However, even when the community doesn’t always take it seriously, that doesn’t give license for others to ignore the category.   (Again, see Prof. Woolf).    More work must be done to balance the benefits of Chumra against the pitfalls of Yuhara, but that for another time.

Chillul Hashem as a Factor in Psak (Halachic Methodology 15)

Most of what I have to say on this topic comes from R. Yaakov Charlop’s article in Techumin 25 on the topic, though I’ve added a few sources here and there.  The shiur is available here.

First, it is clear that the categories of Kiddush Hashem and Chillul Hashem are very important.   As the Gemara highlights at the end of Yoma, causing a Chillul Hashem is considered a sin in a class of its own, which either requires death to achieve atonement (Rambam), or death cannot offer atonement and the sinner loses his portion in the world to come (R. Yonah).  R. Yonah explains that as all creatures are created to bring glory to God, desecrating his name undermines a person’s reason for existence.  Continue reading Chillul Hashem as a Factor in Psak (Halachic Methodology 15)