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.
- 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.
- 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).
- 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
- 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.