Halachic Process, interlude: What it isn’t

(I am going to do something I try to avoid when writing in public — dedicate a post to criticism. This post may someday disappear, if I ever change my mind, so read it now while you can.)

The story so far: In part I, I suggested that the process of pesaq isn’t a set of rules to be followed, but a set of rules that define pros and cons that the poseiq must weigh. In most cases, the difference is irrelevent But in complex cases (all the interesting ones), a rigid algorithm can not handle conflicts in values, the complexity of the real world. The heustic therefore adds more voice to halakhah by allowing some guidelines beyond those cases. Most of the previous post was dedicated to a philosophical discussion of why the A-lmighty would choose this system.

I had originally planned to continue with examples and details, flushing out the system. However, preliminary discussions about this notion led me to conclude it may be more useful to start out by defining what adding fuzzy edges to the system doesn’t do. How does this not simply lead to anarchy? I think this question is sufficiently pressing to deserve an interruption before drilling down into the details.

So, even though we inherently can’t articulate the weights one uses in judging the various conflicting desirata, here are some criteria they must meet:

  1. Honesty
  2. Consistency
  3. Loyal to Traditional Priorities
  4. Formally sound
  5. Produced from within a Torah gestalt
  6. Produced to find how to serve Hashem, not some other goal

But that’s too vague to be usable even as mottos. I therefore had to rely on examples for illustration. So, taking from using the Conservative legal process (hereafter “C”) and a couple of other examples as a foil to help explain these limits, this is what the halachic process isn’t:

1- Dishonesty: Obviously, dishonesty does not create valid halakhah. The few C responsa I have looked at have flaws such as partial quoting, or quoting a hava amina (a rejected suggestion) as though it was a conclusion.

For example, in Silverman’s responsum allowing pasteurized wine as yayin mevushal, he cites a teshuvah from the Rama. In it, the Rama deals with the question of how to treat the Jews of Moravia, who were willing to drink stam yeinam. At no point in time does the Rama say they are right for doing so, but he does conclude that since the current generation learnt this sin from their parents and grandparents, they are mistaken, not rebellious, and should not be categorized as mumarim. Silverman uses this as precedent for being lenient on stam yeinam itself.

2- Inconsistency: C will use conflicting weighting systems depending on the desired answer. Internal consistency is a clearly defined requirement, only a shade less self-evident than the need for honesty. As I wrote in the previous entry:

Someone who changes the weights to find a desired result is no longer simplifying an Infinite Truth to fit it into this universe. Different shadows of the same object are each valid. But if you trace the shadow while changing the direction of the lighting mid-stream, you are left with a picture something that isn’t a shadow of the original.

One can’t be self-contradictory in halachic ruling. To take an Orthodox example, the normal observance of omer is not to listen to music during some part of the omer. And therefore most people will not put a music station on the radio during that period. But they might throw a party, but not hire a musician for it. According to R’ YB Soloveitchik, the primary problem is partying, that music was cited because until recorded music, it was generally associated with celebration. Therefore his students do listen to music on the radio, but should not throw a party even without a musician. It would be inconsistent for someone to both listen to music privately, and attend parties that have no musicians.

The same is true in process. For example, many (but a decreasing number) Orthodox women do not cover their hair outside of the context of synagogue, because they believe there is a mimetic tradition, a minhag avos, of doing so. Therefore, it must be justifiable, even if we don’t know how. (This argument is flawed in that even back in Lithuania where this was the norm, it was acknowledged that it was an error for married women not to cover their hair. The rabbis complained, albeit most — including many of their wives — didn’t listen.) Meanwhile, there are Orthodox women looking to organize Women’s Prayer Groups, crafting a way to innovate a ritual service for women that fits the letter of halakhah (as their rabbis decide it).

I would argue, that this pair is procedurally inconsistent. If someone feels that mimetic tradition is the more weighty concern, then how can one innovate a kind of prayer service our ancestors would not have? And if instead one looks primarily at what is formally permitted in the texts, how can one not cover her hair after marriage? Perhaps one can draw a distinction between the two cases on other grounds, despite their similarity of domain, but the argument (flawed or not) illustrates what I mean by the need for procedural consistency.

3- Ignoring the Important: C will fail to weight matters that are indisputably important.

Example: C denies that the Torah was necessarily dictated by the A-lmighty, and therefore Torah law and particularly those Torah laws derived by derashah are considered the products of human invention. Therefore, even the distinction between Torah and Rabbinic law can be overlooked if they want to outweigh a Torah prohibition.

Or, amoraim were unwilling/unable to dispute the conclusions reached by tanaim, assuming we’re not just talking about choosing one tanna‘s position over another. Notably, the gemara often takes the time to point out “Rav tanna hu upalig — Rav counts as a tanna, and so could disgree.” and argue with tannaim despite not being Rav. In numerous places an amora’s position is questioned on the grounds “vehatenan — but didn’t the tanna say otherwise?” The inability to dispute a tanna was a given.

Similarly, with the closing of the talmud we are told that “Ravina veRav Ashi sof hora’ah — Ravina and Rav Ashi, the compilers of the gemara, were the end of real halachic decisionmaking.

The line between rishon and acharon is less clearly defined, and many hold it’s a matter of convention and respect, not authority. This is how we can have exceptions, like students of the Vilna Gaon or of the Ba’al Shem Tov, claiming their mentor as a “throwback” to the greater times. (Someone who managed to recover some of the Sinai culture, so that they “speak the language” more like a native than their era would indicate.)

But there is unanimity that rishonim‘s opinions get much more weight than those of (nearly all) acharonim, and that one must invoke one of the modes of halachic change to explain how one can defy what seems to be the precedent by Chazal (tannaim and amoraim). In other words, the dictum that they are “sof hora’ah” means that their opinions get SO much weight as to be indistinguishable from an absolute rule in the algorithmic sense that we can not defy their conclusions.

C responsa are willing to dispute mishnaic and talmudic conclusions.

An Orthodox example: Nearly all poseqim (with the exception of R’ Rackman) are not willing to anul a marriage. The gemara has 5 cases in which the court can anul a marriage, based on the notion that “kol demeqadeish adaas derabbanan meqadeish — anyone who weds does so on the acknowledgment of the rabbis.” (The standard wedding formula makes this explicit, as we have the groom say “according to the rite of Moshe and Yisrael.” But it’s a presumed condition on marriage even without this declaration.) But we find that there are nearly no examples of this being applied after the geonic era. And every application is not a by-case decision, but a general rule. Such as “Anyone who weds in a bar, we annul the marriage.” Today, one would have to ask, which rabbis does this conditional refer to? There is no historic community which anulled qidushin – and the possibility for a halachically married couple not being legally married (by civil law) has existed since slightly before the Emancipation!

Why? Because aishes ish (having relations with a married woman) and mamzeirus are very weighty issues. They can’t simply be ignored, even for the sake of the poor women whose husbands abuse the system to make them agunos. At some point, there is no dispute that one is working with misplaced priorities.

And so, R’ JB Soloveitchik broke from norm, and the only time he condemned the actions of one of his students in public was when Rabbi Rackman established a beis din that would anull such marriages.

4- Formally Unsound. C will weight “textual” factors, formal rules that simply are invented of whole cloth.

Such as their rule that the Committee on Law and Jewish Standards (their central lawmaking body) does not decide law by majority vote. Rather, any minority of at least 6 members is considered a valid alternative. This voting model simply has no precedent or place in the halachic process.

5- Not produced from within Torah: C values objectivity, and therefore end up trying NOT to bring the right gestalt / da’as Torah to the process.

C conflates rabbinics with modern notions of scholarship. However, the point of a scholar is to understand a topic objectively, from the outside. The purpose of talmud Torah is to internalize the values and priorities conveyed in the Torah.

Therefore, the inarticulatable part of the system, the proper weighing of pros and cons, is impossible.

E.g. There is a concept when it comes to eating kosher that non-kosher food is “metamteim es haleiv — closes up the heart”. (Whether one understands this mystically, or as a a psychological statement about people who do not try to elevate their eating to be more than that of an animal aside.) The C rabbi is incapable of feeling this tradition in his bones, because he was taught to learn the notion with an attempt at precision coming from cold detachment. And therefore, the C rabbinate was far more lenient on matters of kashrus than O would be.

5b- Ends-driven to non-Torah goals. C is “ends driven”, trying to get the desired pesaq. With this model in hand, I would now say that C is using values to weight their decisions that are more Western than rooted in aggadita. (Which is how C can seem to end up wherever R does, just 15 years later.) By adopting historical school beliefs, they invent a history of weighting things that bears no resemblance to halakhah but rather political power ploys. Both between rabbinic schools and to accommodate the masses.

Recently C decided that women could serve as witnesses (in matters beyond determining permissability; e.g. to validate a wedding), entirely on the grounds that once it allowed them to be rabbis and cantors, drawing the line at witnessing is absurd. This was simply an acknowledgement that they imported the modern western version of Egalitarianism into their judgement system, aside from the procedural problems mentioned above in ignoring Chazal’s decision without showing how it wouldn’t apply.

In the next (and last) post in this series, I will drill down into the details of the model and show how this description of how halakhah is made conforms to various famous halachic decisions.

Halachic Process, part I

Eilu va’eilu divrei E-lokim Chaim, vehalakhah keBeis Hillel — These and those are the words of the ‘Living’ G-d, but the halakhah is like Beis Hillel.” The voice rung out from heaven that even though the law is ruled according to Beis Hillel, Beis Shammai’s position is also the word of G-d. There is some variation in halakhah between people — and yet both are right. We can’t expect every halachic decisor to take the same data and reach the same conclusion, even if no one errs. In the past, we compared different models for explaining how multiple correct answers could coexist (see Eilu vaEilu parts I and II). Here, that would keep the conversation too broad. I will instead just explore the problem from the Maharal’s perspective.

The Maharal’s position is that “divrei E-lokim Chaim — the word of the ‘Living’ G-d” is simply too rich and too complex to exist in this world. Therefore they are mapped to oversimplified models, related to Hashem’s words the way a shadow is a flattened representation of the original. And thus, different people looking at the problem from different directions will get different shadows — even though they are all accurate representations of the same thing.

To finish out the metaphor: The angle at which we look at Devar Hashem is our “derekh“, our path in how we . This derekh, just like the lamp, is determined by two things: mei’ayin basa, ule’an ata holeikh — from where do you come, and to where are you going? Where the lamp is, and the angle it points. Different people were put together differently, and can have different emphases in how they interpret the ultimate goal.

The complexity of Devar Hashem causes the illusion (to us) of paradox. It’s no more real of a paradox than the 5 blind men who argue about the nature of the elephant. The one who felt the elephant’s ear would argue an elephant is like a fan. The one who felt its leg would think it is like a tree. But it’s only because we can’t capture the full picture.

We therefore see the Torah as demanding conflicting values and duties. (Unresolvable dialectics, in R YB Soloveitchik-speak.) Depending upon which we choose to prioritize, followers of different derakhim will obtain different results. But you won’t make it to the top of the mountain if you first try this route and that that. You need a consistent plan.

Someone who changes the weights to find a desired result is no longer simplifying an Infinite Truth to fit it into this universe. Different shadows of the same object are each valid. But if you trace the shadow while changing the direction of the lighting mid-stream, you are left with a picture something that isn’t a shadow of the original. The weighting can’t simply be to justify the result; and in that sense even including human cost is different than ends-driven decision making (picking the pesaq to fit some non-Torah desire). The weighting system, the angle of the light, is the a priori — and must itself be a product of the halakhos of making halakhah.
This notion, that halakhah is a human-sized model of something far richer, also dovetails well with another idea I fell in love with, something from Professor Moshe Koppel’s book, “Metahalakhah”. There are two ways to learn a language: The native speaker doesn’t learn rules of grammar before using them, he just knows what “sounds right”. In contrast, an immigrant builds his sentences by using formalized rules, learning such terms as “past imperfect” and memorizing the forms that fit each category. R’ Koppel notes that the rules can never perfectly capture the full right vs wrong. A poet has to know when one can take license.

He argues that halakhah is similarly best transmitted by creating “native speakers”. It is only due to loss of our progressive loss of the Sinai culture with each generation that we need to rely on transmitting codified rules. (RMK notes in a footnote the connection between this idea and some ideas in R’ Dr Haym Soloveitchik’s essay “Rupture and Reconstruction“, Tradition, Summer 1994.) Earlier cited cases are the loss of culture that occurred with Moshe Rabbeinu’s death, when 300 halakhos were forgotten, and Osniel ben Kenaz reestablished them – chazar veyasdum. Similarly the reestablishment of numerous dinim by Anshei Keneses haGedolah after the return from the Babylonian exile — shakhechum vechazar veyasdum. Leyaseid, he suggests, is this codification.The informal knowledge of a “native speaker” is limited by the capacity of the human mind. But still, it captures more of the ineffable whole, the true “divrei E-lokim Chaim” than can be set down as formal rules.

Even the codified rules, therefore, are not all-or-nothing absolutes. Rather, they give clarity to the issues that a poseiq must weight, highlighting the relevant aspects to different elements of the fuller picture. For example, “acharei rabim lehatos” means that rulings follow the majority. But this doesn’t mean the minority is entirely ignorable; and in fact one may need to rely on that minority opinion if other factors come into play. The poseiq can then weigh pro vs. con.

We’re dealing with a fuzzy system, which acknowledges a realm where answers may be more or less halachic, rather than entirely within or outside the fold. Of course in many situations, the answer is clear and the difference between this kind of system and a straight rule-based algorithm is moot. But those are not the scenarios that require complex pesaqim and become the “interesting cases” in our responsa.

This weight-based methodology doesn’t make for looser requirements. In fact, often quite the opposite. If all rules were absolute, always of the form that factor X always trumps factor Y, then our language for dealing with conflicts in priorities would be quite limited. In cases where conflicts come into play, where the Maharal’s notion of simplification of the Infinite is manifest, one is given no guidelines — and thus full autonomy would have been granted. Rather than an algorithmic interpretation of halakhah being more defining, it’s less.

To explain further by metaphor:
If you have a digital thermostat, it probably is based on Fuzzy Logic. I’m not sure Zadeh’s “Fuzzy Logic” is the best way to represent more or less vs all or nothing, but it was that meaning that I was suggesting. There are other multi-valued logics. Statistics could even be adapted as one. Quantum Mechanics suggests a third, etc… But it is a good example to serve as a parallel for our purposes.

Fuzzy Logic is one in which AND means “take the minimum”, and OR means “take the maximum”. Say two balls are different shades of red, one a real primary red — we’ll say it’s .9 red, and another somewhat muddier, some might even call it brown — just a .2 red. In FL, we would say that the statement “both balls are red” is also a .2 (AND — the minimum of .2 and .9), while the statement “at least one of these balls is red” is a .9 (this ball is red OR that one [or both] — the maximum).

Fuzzy Logic is used in thermostats because the question “is it hot?” really needs to be able to represent “no”, “a little”, “very”, etc… Without such gradations, digital thermostats tend to turn the heat on and off too often (or need some even more complicated solution). Now, one thermostat manufacturer may weigh the heat based on degrees above comfort zone. Another might acknowledge that these things are non-linear, that I’m not nearly half as uncomfortable when the temp is 5 deg off than when it’s 10, and may have some fancier weighting system.

Notice that there are basic rules that any thermostat must comply to. For example, the temperature should be within the desired range at all times. All thermostats will end up sharing certain properties of the rules and the weightings used.

In Artificial Intelligence software, the word “heuristic” is used to describe a system for finding a solution that is less formal than an algorithm, might not always get the optimal solution, but is used because the perfect algorithm either doesn’t exist or would be too slow or complicated to ever get used. In truth, computers are algorithm machines, and thus the heuristic is really a just a much faster or simpler algorithm than one aimed directly at solving the problem perfectly.

Heuristics better represent human thought, as people aren’t algorithm machines. Heuristics better capture that looseness. Like in this case, we weigh pros and cons, not follow strict “IF … THEN …” rules on true vs false prepositions.

And so we find a range of dependence on formal rules in teshuvos. There are those I would call da’as Torah teshuvos, where it’s clear the poseiq was enough of a “native speaker” to realize the issues and weigh them before he was even conscious of needing to. The teshuvah then becomes an excercise in explaining the ruling post facto, perhaps to confirm than the instinctive answer was sound.

My favorite example of the da’as Torah pesaq is the prohibition of electricity on Shabbos. There is far more universal agreement that electricity just doesn’t fit the feel of Shabbos, as shaped by hours of talmud Torah, than on the reason why it’s assur. And in fact, some of the reasons found are self-evidently stretches to explain after the fact what seemed obvious. Boneh (building) a circuit? Where else do we see something called boneh on Shabbos where there is no actual roof involved?

Then there are the teshuvos where the poseiq relies very heavily on rules and precedent.

In between are the typical teshuvos, ones where the heuristic nature stands out quite clearly. A common form of teshuvah in Even haEzer and Yoreh Dei’ah (as well as some parts of Orakh Chaim, e.g. eiruvin) is where the author starts out by proving the law in question is rabbinic, or that some major issue doesn’t apply, and then provide snifim lehaqeil, motivations for leniency, where no one is sufficient but the poseiq combines them as justification.


In a future entry, I will explore how this notion is applied differently by various poseqim, and what it means to understanding machloqes and the limits of pesaq. Defining a limit is more difficult when one can’t rely on checking compliance to specific rules. How does one differentiate between differences in prioritization of issues and outright violation of the system?

Halachic Change

Pesaq “changes” in a number of very different ways. I put the word in quotes, because I’m including things I do not consider an actual change in pesaq. R’ Herschel Schachter writes in a number of places of the difference between appropriate halachic innovation, “chiddush“, vs unauthorized change in established din, “shinui“. Much rests on whether one is actually changing established din, and whether that change is authorized.1- The realia change in some subtle but relevent way. What seems like a new pesaq for an old situation is actually a pesaq for a new situation. This isn’t what RHS would call chidush or shinui, it’s not really a change of halakhah. Chiddush — it’s a new pesaq for a new case.

If teaching girls Torah were declared “assur” rather than “tiflus“, the Chafetz Chaim’s grounds for backing Beis Yaakov would qualify. He held that universal secular education for girls was a change in realia which in turn changed the definition of “teaching them enough for them to observe Torah”. Teaching halakhah is no longer enough; they now must also see that Torah has greater beauty than the other systems of thought to which they are exposed. As it is, the Chafetz Chaim justified a change in minhag Yisrael, which is KEdin (like law) and thus follows the same rules — but what was changed wasn’t actually din itself.

1b- Technology advanced to make a new option possible. With a new set of options, we have a new reality. This may well call for a new pesaq.

Eg 1: If a woman ovulates before day 12, how do they ever have children? Many poseqim have historically permitted the couple not to fulfill the full 5+7 days of waiting, because the obligation to “be fruitful and multiply” outweighs a late practice of treating every period as though it might be zivah. However, with the advent of IVF-H (in vitro fertilization from the husband), a poseiq might decide not to wave the law, and require them to use IVF to fulfill the obligation to reproduce. If he so decides, it’s a new pesaq for a new case — not overturning precedent.

Eg 2: R’ SZ Aurbach held that modern ink making methods have advanced greatly due to superior grinding and therefore mixing of the ingrediants. In fact, he rules that indoor mezuzos ought not be checked. The chance of a letter cracking due to age are far smaller than the risk caused by unrolling and rerolling the parchment. Previous pesaqim are ignorable, since they speak to an inferior ink, not the situation now facing the rabbi.

1c- One can not overturn din because of the motivation of the din. If the motivation no longer applies, eg not using medicines on Shabbos lest someone may grind one (not that any of us grind our own medicines today), we may find that the balance of conflicting values shifted. But the din itself, to be implemented no conflict exists, stays on the books.

The exception to (1c) is where the motivation is codified in the din. For example, YD 1:1, women don’t shecht because it would make them queasy. If the pesaq was that queasy people who would be unable to maintain the settled mind necessary for good shechitah should shecht, eg women, then a veteran of a MASH unit may very well be allowed to shecht even as decided before employing her. However, if the pesaq is that women may not shecht, and the pesaq made because of assumptions about women, then we do not have such latitude.

This is a subcategory of #1 because we aren’t giving a new pesaq to an old situation. We are recognizing the fact that the current situation is actually a different one than what the precedent was set for.

2- “Halachic technology” advanced. Someone thought of this once-new concept of a heter mechirah (selling the land to a non-Jew so that the land may be worked during shemittah), or of a heter iska  (configuring something similar to a loan with interest, but structured as a permissible investment), etc… If a poseiq feels that this invention is obvious enough that if it were valid, someone would have utilized it by now, then he would find that lack of usage to be a proof that it must be flawed. However, if it’s not obvious, then pruzbul or a rider for the kesuvah to protect the bride in case the groom might someday refuse to give her a get, etc… have not been ruled out. And so, some such proposals are actually shinuyim, and others are healthy new growth, chiddushim.

Here we aren’t changing the pesaq, we are orchestrating a new situation in order to be able to be subject to a different pesaq.

3- The realia don’t change, our knowledge of them does. The advance of science. But what to do when the realia change is a huge dispute with three basic approaches:

Rav Kook allowed changes in scientific theory to make rulings more stringent, not more lenient. This is based in an idea earlier expressed by the Vilna Gaon, that for every known reason for a law, there could be many undocumented reasons. Therefore a change in science might remove a cause for a stringency, but other, unknown, causes may still exist. However, if  it removes a single explanation for leniency, then we have sufficient grounds to be strict.

Alternatively, one could argue that changes in theory do not warrant such change. Either on the grounds that we lack the pro forma authority to make changes (we lack the legal authority of Chazal), or because of a skepticism about scientific theory. Why change the law when the theory is bound to change eventually anyway?

A third possibility is to handle each one on a case-by-case basis. Often in effect this is means a resistance to change in halakhah, but in each case a distinct reason is found to support the original ruling. See for example this earlier essay in which I discuss my recollection of Rav Dovid Lifshitz explananing the kashrus of maggots.

Here, in the United States, around the 1980s, it became more common to have concern about the bugs on vegetables we eat. Any bug that is large enough to be seen by the naked eye may not be eaten. However, one need not use a magnifying glass or microscope to find tiny insects. My rebbe, R. Dovid Lifshitz, used a similar idea to explain a different problem. The Gemara explains that maggots found inside a piece of meat are kosher. (I presume that the case if where someone ate them accidentally and now wants to know whether he must bring a sacrifice.) The reason given is that they were born from the meat, and idea known in the history of science as spontaneous generation.” Therefore, halachah treats the maggots identically to the meat.

Spontaneous generation has since been disproven. Maggots come from microscopic eggs. Now that we know that the underlying science is wrong, does this mean that the halachic ruling is also wrong?

Rav Dovid taught that the halachic ruling is still correct. The microscopic eggs and maggot larvae are not within the realm of human experience. The only cause for the current presence of maggots that we can see is the meat. In terms of human experience, the meat is the source of the maggots.

Thus Rav Dovid manages to save the ruling, but does so by finding reasoning specific to the case. I do not know if Rav Dovid had an article of faith that such reasoning would always be found, and if not, what he would do when it couldn’t — change the halakhah or not?

The subject of chiddush vs shinui will therefore be omitted in this case; it depends on how one believes the halakhah should change — or not. Does precedent matter, or was the earlier ruling simply in error (technically: a valid ruling about a situation that doesn’t arise)?