Akirat Davar Min HaTorah 2 (Halachic Methodology 19)

This is the second shiur on this topic and it is available here. As I mentioned in my last post on this topic (here), what makes the cases in which akirat davar min haTorah, and to a lesser extent pesikat halacha beshaat hadechak (here), is that they assume the result they need.  In the former case, even if it is against Halacha, the Beit Din/Posek or navi decides that it must be done so he temporarily suspends the law.  In the latter, the posek tries to remain within the bounds of interpretation, but allows for leeway than he normally would have.

Due to this similarity, when the notion of akirat davar min haTorah or its cognate, eit laasot la-Hashem heferu toratecha, is used in poskim, it is often unclear whether it is being used seriously or as rhetoric.  In other words, is the posek really relying on it, or he just making the point that in this case he has assumed his conclusion but is really relying on more tenuous legal arguments, and explaining why it was legitimate to treat this case as a shaat hadechak.  This is made more difficult because poskim often want to shy away from actually relying on akirat davar min haTorah by itself, as in the wrong hands it is disastrous.  You don’t want any rabbi to be able to decide the Torah shouldn’t, and therefore doesn’t apply when he wants to.  With these thoughts in mind, I discussed three cases when poskim use this mechanism in the twentieth century.

The first related to the issur of taking money to learn or teach Torah.  The Rambam famously opposed this strongly (Avot 4:5, Hilchot Talmud Torah 3:10-11).  The Kesef Mishna takes every one of the Rambam’s many proofs and attempts to refute them.  When he finishes, he writes that even if the Rambam were right, we have no choice – eit laasot la-Hashem.  If we didn’t allow teachers of Torah to take money for teaching, Torah would have been forgotten (alluding to the Gemara’s dispensation for writing down the Oral Torah).  This psak is recorded as one opinion in Shulchan Aruch, and is accepted by the Nosei Kelim (see Shach, for example).

R. Moshe Feinstein takes this farther.  He asserts that the basic argument remains true – if we did not allow people to take money to learn and teach Torah, Torah would be forgotten.  No one, he asserts, can both pursue Torah and a full-time profession.  He argues that anyone who claims they are being righteous and trying to be machmir like the Rambam is following his yetzer hara and just wants to be mevatel Torah.  His language is harsh, but the reason is obvious.  He thinks the assessment of reality, that it is necessary, remains true – therefore, he cannot allow for people to think that is room for another legal position.  Whether his assessment of reality was correct or remains correct is not my issue.  In the Kesef Mishna, Shach, and R. Moshe, you see the points I made above – a mixing of interpretation and eit laasot –making it unclear whether we are really relying on normal rules of law or not, a conviction that the result can only go in one direction, and an explanation of why the reality requires this psak.

The same can be seen in R. Ovadiah Yosef’s heter to marry Karaites.  This position I already mentioned in my shiur about Chilul Hashem in psak (here).  He cites Besamim Rosh (who he acknowledges is likely a forgery) as saying that would be worth uprooting the Torah rather than cause the Chillul Hashem of pushing away those who have lived and died as Jews.  However, here too, I’m not sure this is more than rhetoric. Both the Besamim Rosh and R. Ovadiah have other reasons to be matir – they just assert that even if it wouldn’t be mutar, they would have to prevent the Chillul Hashem that would have been caused by forbidding it.

The third example is the Sridei Esh’s permission for co-ed programming and his leniency for Kol Isha.  This teshuvah is often cited as a straight heter, but if you read it, you will see that on a pure Halachic level he is very uncomfortable with the heterim.  He does not accept the notion that “two voices cannot be heard” and the notion that shirei kodesh are mutar.  However, he is lenient for youth movements who asked him.  He writes at length about the dangers of assimilation and how the German rabbanim who were lenient in these areas managed to keep the youth frum, while the Hungarian rabbis who were machmir could not.  Thus, as the results prove the efficacy of the German method, their methods must be followed.  He accuses those who are machmir of not understanding the reality and how to deal with it.  He relies therefore on  eit laasot (and the authority of the German rabbis).   However, at the end, he notes the danger of using eit laasot, and backtracks, claiming that one can put together a heter without it.  However, the teshuvah purposely goes back and forth between the legal arguments and the eit laasot/sociological ones making it hard to determine which really drives the teshuvah.  What is clear is that he is convinced of his conclusion, no matter how he needs to get there.

I won’t get into too much detail – it is worth reading the teshuvot and seeing how poskim deal with difficult cases where they need a specific result, and how they mix interpretation and eit laasot, along with healthy rhetoric to create very powerful pieces.  In each case, also realize that if the reality were to change, so would their positions.  Thus, to apply the teshuvot, a posek would need to determine if the reality is the same.

And please – read the teshuvot, especially the Sridei Esh.  It is a masterpiece, whether you agree with him or not.

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