Tag Archives: tefillin

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.