Tag Archives: methodology

How the Notion of Chumra Can Unite or Divide a Community: Rabbi Moshe Feinstein on Chalav Yisrael

Everyone knows the power of chumra to divide people.   In the past we have discussed the problems that can emerge because of yuhara (here), lo taaseh aggudot aggudot (here), and other issues. However, sometimes chumra can be used as a way to unite a community, as can be seen from Rabbi Moshe Feinstein’s treatment of chalav stam yisrael. The shiur and sources can be found: here.

The Gemara prohibits a series of products and interactions with non-Jews. Some of those are prohibited because of concerns for chatnut, roughly translated as intermarriage, though the actual definition is probably more expansive. Others are prohibited for concerns of kashrut. The Gemara entertains other explanations for some of these prohibitions as well. One of the prohibitions is that of chalav akum, milk that was milked by a non-Jew. The Gemara limits this to cases where there was not a Jew watching the milking, or at least sitting outside where he could in theory come in and see. The Gemara suggests that this was instituted to prevent the mixing of non-kosher milk, though there are commentaries who assume that it was also for issues of chatnut. Continue reading How the Notion of Chumra Can Unite or Divide a Community: Rabbi Moshe Feinstein on Chalav Yisrael

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The Role of Aggada in Psak

The Talmud, while primarily comprised of legal sections, also devotes a significant percentage of its text to aggada.  While these have moral and theological, their status legally is difficult to ascertain.  Thus, I devoted a shiur to exploring this topic: source and shiur here.

Before I deal with aggada proper, I should note that there is a related category which clearly has legal value which is maaseh rav.  When stories are brought to specifically support or reject a legal principle, recording how a reliable authority did or did not act in accordance with a  specific position, they clearly have normative value.  Sometimes the specific conclusion to be drawn is unclear, as in the case of drinking on Purim (discussed here), but in principle these are clearly legal texts.  The stories I refer to here are those that are less explicitly legal.

Here, there is a range of possible positions that could be taken.  Continue reading The Role of Aggada in Psak

Intellectual Property: When Halacha Has to Deal with New Categories

It is always fascinating to see how poskim deal with issue, concepts, and categories that are new to Halachic discourse. They have many options at their disposal – they can integrate them, ignore, them, or find precedent to explain why they are not new at all. One telling example is the question of intellectual property and copyright law. Classically, Halacha recognized ownership of tangible objects. The paradigm of stealing was the case of a weapon being stolen out of someone’s hand. Ideas were not owned. Even more than that, it was often acceptable to copy others ideas – it was a sign of respect. For example, the fact that a large majority of Chiddushei HaRashba and Ritva copy the Chiddushim of the Ramban is a sign of the prominence of the Ramban, even when they don’t cite him directly.` However, when the outside world started recognizing a notion of intellectual property, poskim had to decide how to respond. Continue reading Intellectual Property: When Halacha Has to Deal with New Categories

Halacha’s Response to the Emergence of Denominations: Tinok Shenishba

I have always thought that examining teshuvot that are self-consciously dealing with new situations is a particularly effective way of understanding the process of psak.  Therefore, we explored the teshuvah of Rabbi Yaakov Ettlinger that first suggested that members of non-orthodox denominations should be classified legally as tinokot shenishbu.  The shiur and sources are available here.

The Binyan Tzion, in a teshuva (23) that has a preface indicating that it is not meant as practical Halacha, was asked whether non-shomrei Shabbos Jews in his day invalidated wine like classic Shabbos violators.  [The Minchas Elazar assumes the printer put this preface in – I’m not sure why he thinks that.]  At first, he establishes the standard Halacha and asserts that they should.  However, in the middle of the teshuvah he notes that the reality he is dealing with is fundamentally different from that of Chazal.  Rashi, he notes, explains that the reason that one who violates Shabbos has the status of an idol-worshipper is because he denies the creator and creation.  This was true in an era where everyone understood that there was basically only one way to be a Jew – keeping Halacha.  Obviously some people were derelict or even rebellious, but there was not alternate model.  Thus, violating Shabbos meant that you rejected the system and what it represented.  However, in Germany in the nineteenth century, there was another vision.  The Reform Movement had begun. Continue reading Halacha’s Response to the Emergence of Denominations: Tinok Shenishba

Akirat Davar Min HaTorah Part 1 (Halachic Methodology 18)

Perhaps one of the most critical topics to understand the nature of the halachic process is akirat davar min haTorah, the ability of the courts, navi, or king to temporarily uproot a law in the Torah.  As we argued when discussion pesikat halacha bishaat hadechak, the parameters of making halachic decisions in extenuating circumstances, understanding Superman requires understanding Kryptonite – understand when the normal rules break down to understand the nature of the system.   As I was focusing on some of the broader issues, I unfortunately had to skip some of the more complicated theoretical issues.  The shiur and sources are available here.  The second shiur is available here.  Summary to follow.

The importance of this topic can be seen in another way.  Rabbi Tzvi Hirsch Chayes, the Mahartz Chayes, in his Torat Neviim explains why he wrote a book dedicated to this topic.  To this he responded that he was living in an age (the early years of the Reform Movement), when there were movements that were uprooting the Torah in the name of modernity.  He wanted to explain what circumstances warranted akirat davar min haTorah and reflected commitment to the system as a whole, and what circumstances showed rebellion.  Understanding this topic sheds light on the cognate topic mentioned above – when is trying to push the halachic system to its limits legitimate pesikah bishaat hadechak (here and following posts), and when is it rebellion, an attempt to jettison the word of God for other values.  Continue reading Akirat Davar Min HaTorah Part 1 (Halachic Methodology 18)

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.

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.