Tag Archives: Moshe Feinstein

What is the Role of “Baal Habatim” in Psak?

Last year I devoted my series on the methodology of psak to the issues that poskim deal with when making decisions. This year, I want to explore the role of the “baal habatim” in psak – the balance between authority and autonomy, how one picks poskim, why one is bound to psak, when one can poskan for himself, and other related issues. Anyone who has ideas, please leave them in the comments.

To begin with (here), I outlined five models of psak which highlight the balance of power between poskim and the laity, using mostly teshuvot that I have dealt with in previous shiurim: Continue reading What is the Role of “Baal Habatim” in Psak?

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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

The Nature of Sin in Philosophy and Law: Doctors/Soldiers Switching Shabbos Shifts and Yichud

I was always intrigued by the quasi-legal discussions in the Gemara that reflect highly sophisticated philosophical issues.  Even more fascinating is when those same discussions are translated into law.  Perhaps the most striking example emerges from a passage about the nature of sin that appears in several places in Shas (Kiddushin  81b and Nazir 23a).  By coincidence, I was reminded of R. Shlomo Zalman Aurbach’s approach to this Gemara from a legal perspective when giving a shiur on soldiers/doctors switching shifts on Shabbos (here) and another shiur on Yichud (here). Continue reading The Nature of Sin in Philosophy and Law: Doctors/Soldiers Switching Shabbos Shifts and Yichud

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.

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.

Schisms and Lo Tisgodedu (Halachic Methodology 14)

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)

Minhag (Halachic Methodology 13)

Minhag is one of the most complicated issues in Halacha and I did by no stretch of the imagination cover every issue that comes up.  I tried to outline some basic issues, but for the details, you’ll have to look at the sources inside.  Shiur and source available here.

For the other side of the coin, the next shiur was on לא תתגודדו – which binds people to minhag so as not to create divisions within klal yisrael.  I will try to summarize soon.

  1. Types of Minhagim
    1. Source:

i.      Minhag HaMakom

  1. This is the one binding from the perspective of the Gemara (Pesachim Perek Makom Shenahagu)

ii.      Minhag Avot

  1. While the Gemara phrases some minhagim as minhag avot, they seem to really be minhag hamakom.  Continue reading Minhag (Halachic Methodology 13)

God is Concerned about the Jews’ Money (Halachic Methodology 11, Shaat HaDechak 3)

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)

Policy and Psak – The Rav on Women’s Learning (Halachic Methodology 7)

This shiur is a case study in how a psak acts to set communal policy, focusing on the issue of women’s learning.  The shiur and sources are available: here.

The Rav wrote two letters when asked whether girls should be taught Gemara.  The second, which is much more famous, affirms that we should open the halls of תורה שבעל פה  to women.  However, in the first letter, which I think is critical to understanding the letter, first requests assurance that his answer will be accepted as binding.  Continue reading Policy and Psak – The Rav on Women’s Learning (Halachic Methodology 7)