Last week we dealt with the topic of minhag. We discussed the different types of minhagim, the parameters of when they are binding, and the rationale behind their prominent place in the Halachic system. This shiur dealt with the other side of that coin – the prohibition of lo tisgodedu (לא תתגודדו). Chazal derive from the possuk prohibiting cutting oneself in mourning another issur – לא תעשו אגודות אגודות- don’t splinter into different groups. This prohibition in some circumstances binds people to the practices of the community to prevent them from splitting into factions. We will not get into the technical issues of how this is derived from the possuk and what its relationship is to the prohibition concerning mourning. I tried to give a framework to understand the legal and philosophical issues involved in this prohibition. Continue reading Schisms and Lo Tisgodedu (Halachic Methodology 14)
Another classic factor in psak that causes poskim to rely on positions they wouldn’t normally rely on is hefsed – monetary loss. Shiur and sources (including many summaries from Encyclopedia Talmudit) are available: here.
That the Torah cares about the economic stability of the Jewish people is clear. There are two formulations of this that are explicitly connected by the Yerushalmi (and many Rishonim and Achronim). Specifically, the notion of HaTorah Chasah al Mamonam shel Yisrael, the Torah had pity on the money of the Jews, and the dispensation found throughout Shas in cases of hefsed merubeh, great economic loss.
The former concept explicitly appears in Shas to explain why certain mitzvoth are patterned the way they are. For example, the Gemara explains that while the Kohen Gadol uses a golden shovel for the ketoret on Yom Kippur, during the rest of the year he uses a silver one, so as not to incur extra expenses for the Jewish people. The exact parameters of this principle are unclear. Continue reading God is Concerned about the Jews’ Money (Halachic Methodology 11, Shaat HaDechak 3)
Before I begin, what I am about to write has absolutely no relevance to Halacha. None.
I recently gave one example (here)of a Rishon who took R. Meir’s explanation for Hilchot Niddah as normative rather than homiletic. I was reminded by a friend (h/t Shaya) of a radical position in the Achronim that takes this farther. Again, R. Meir argues that the laws of Niddah and the distance created are supposed to increase the desire a husband has for his wife. On the basis of this, the Toras HaShelamim toys with the possibility that the laws of Niddah would not apply Continue reading Homiletics or Halacha: Another Radical Example from Niddah
Another example relates to a famous statement by R. Meir about the issur of Niddah.
תלמוד בבלי מסכת נדה דף לא עמוד ב
תניא, היה ר”מ אומר: מפני מה אמרה תורה נדה לשבעה – מפני שרגיל בה, וקץ בה, אמרה תורה: תהא טמאה שבעה ימים, כדי שתהא חביבה על בעלה כשעת כניסתה לחופה.
R. Meir asks why a Niddah is assurah to her husband for seven days. He answers that the Torah wanted to separate them for seven days so that when they are together again “she will be as beloved to her husband as he was she got married.” R. Meir can either be understand as explaining why there is a notion of separating for Niddah at all, or why the issur formulated as it was – as seven days with all the laws that go along with, regardless of when she stops bleeding. [Separating during menstruation was relatively common in many ancient cultures. The specific laws of Niddah are more of a chiddush than the basic notion of separation.] Either way, he offers an explanation for the laws of Niddah.
The simplest understanding is that this is homiletic/philosophical, but has no normative value. For example, there is no obligation to be a Niddah for a week every month, and if someone uses hormones to minimize how often she is a Niddah, that is fine. There is no obligation to create this distance that makes the heart grow fonder.
However, there was one Rishon (that I know of) who thought it did have (quasi-)normative value. Continue reading Homiletics or Halacha: An Example from Niddah
I always find it fascinating when seemingly aggadic statements become the basis of Halachic argumentation. An interesting example that I just came across appears concerning the topic of eglah arguah. The Gemara in Sotah asks why the eglah arufah ritual is done with a childless calf in a barren valley. It answers that something that has borne no fruit brought in a place that bears no fruit will come to atone for the person who was killed and can no longer produce fruit. The Gemara then questions what fruit are being referred to. It rejects the possibility that it refers to children, as logically that would dictate that an elderly or impotent person who was killed would not obligate the bringing of an eglah arufah. Thus, the Gemara concludes that the killed person is no longer able to perform mitzvoth. Continue reading Homiletics or Halacha: An Example from Eglah Arufah
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
Sorry for the hiatus. Things have been a bit crazy. The shiur and sources are available: here.
In this shiur I spoke about the role that Kabbalah plays in the Halachic process. This question can be asked on several levels, but I focused primarily on the role of the Zohar and the Arizal in psak. [One can also speak about the role of dreams, bas kols, etc.]
There are two extremes: 1) The view of the Chasam Sofer, that is traditional in many Ashkenazi circles, that Kabbalistic material does not affect Halacha. He pithily calls any psak based on a synthesis Kilayim. 2) The view often cited of the Masas Binyamin, that the Zohar outweighs all post-Talmudic authorities combined. The Ben Ish Chai and Chida, as well as many poskim of various Edot HaMizrach have similar sentiments about the Arizal. One can in theory accept only one of these authorities in this way. Continue reading Halacha and Kabbala (Halachic Methodology 8)