Halachic Process, addenda

With this post, I am closing the series (for now) with three other thoughts that came up during the Avodah discussion, but aren’t part of my core thesis.


The concept of minhag hamaqom impacts two different things — actual minhagim and local pesaqim. I’m now addressing only the latter. A community can’t survive with too much variation, so we standardize local pesaq on many issues.To my mind, this means that a kehillah’s members are limited in the “angle” at which they look at the Torah. One is obligated to follow minhag hamaqom, and if one is going to be consistent, one is limited to derakhim that include that element in their “shadow”.Nowadays that tends to run in the reverse — people who have strong opinions one way or the other pick their kehillah. Someone chooses to be chassidish or to join Rabbi Soloveitchik’s followers at YU, I even heard of people leaving “Breuer’s” (!), and the pesaqim follow.

This also impacts the parameters of pesaq shopping. If one isn’t careful, one could be left with an inconsistent set of rulings. The image they live by doesn’t represent Devar H’ because they have bits of a shadow as seen from one lighting, and bits as seen from another — producing something that could never be cast by the actual object.

A second problem with pesaq shopping is not only must a person be consistent, an object can assume a particular chalos (halachic state). And because we all share the same universe (within limits, pace REED or Slabodka hashkafos), that state can only be one thing. When a rav is proclaiming a chalos, pesaq shopping is impossible. When he is proclaiming only a duty or a prohibition on the person (and not a chalos that causes them) you have some lattitude.Personally, I would think that latitude would require:(1) One must be motivated to perfect one’s avodah rather than adding ease (or glory of being more machmir than the neighbors).(2) One still must go back to the first rav to close the circle. This isn’t so much a chiyuv direcly because of the rules of pesaq, but midinei kavod harav one is better to be inconsistent than to imply disrespect of the first rav.


Chana Luntz (RtCL, in Avodah-speak) introduced the notion of bottom-up pesaq. In one post she writes:

In Yevamos 116b the gemora brings a mayse shehaya about a woman whose husband was bitten by a snake when he went out to the wheat harvest, and she came and testified to beis din that her husband had died, and they went and checked it out and indeed he had died, and at that point they legislated that a woman is believed if she comes to beis din and says her husband has died to allow her to remarry. And the Mishna there brings a machlokus between Beis Hillel and Beis Shammai regarding whether or not they believe a woman just in a case similar to the mase shehaya or not – for example if the woman and her husband went to midinas hayam and she testified about his death there, with Hillel saying no it must be similar to the mase shehaya and Beis Shamai saying not necessarily, and Beis Hillel eventually retracted and agreed to the position of Beis Shamai.

And in another:

… I find that while your argument that pessaq worked and sometimes may still work (that needs further analysis) partly bottom up, this in no way justifies the shoel looking for a particular outcome.

In fact, from another sugya, in Ketubot 23a, about a woman, and later two who says that she was imprisoned but remained tehorah, we see how it was preferable to manipulate the reality (making sure that the daughters of Mar Shemuel came to beit din while the captors were kept at a distance — a weird situation, where the captors would be willing to wait at a distance. Either the captors had been caught, or they were government forces confident that the women could not disappear under their watch, having numerous forces with them. The latter is indicated by Rashi s.v. Deatyyan liNharda’ah, where he explains that the women came to be redeemed).

AIUI, “bottom-up” here is used to refer to two elements:

1- Building a pesaq based on case law, rather than starting from Divrei E-lokim Chaim and applying to the case.Here I would say it is “bottom up”, but it’s not instead of top-down. If we accept the Maharal’s notion that pesaq is the art of mapping DEC to a finite reality, then we will map things differently as our reality, knowledge of reality, and attitude toward reality change.

When the woman’s report that her husband was killed by a snake was proven to be true, Chazal realized they until then had a gap in their knowledge of how women behave, and whether the report would in general be reliable. The lenient ruling wasn’t a breach of applying divrei E-lokim Chaim downward as much as a shift in what that downward was understood to be.

So, I still think halakhah is more like Platonic Idealism than Aristotilian Realism. Truth becomes a set of instances, rather than one collects instances, finds a pattern, and constructs a truth. What changed is how one does the “becomes” as one knows more, not the direction of application.

2- Taking the human cost into account.

Personally, I wouldn’t consider this different in kind to “top down”. One factor that needs to be weighed, residing well within our “triangle”, is human cost. Mar Shemuel isn’t taken to task for applying strict ideals without accommodating the human reality as much as ignoring a whole subsection of those ideals. Whether it’s the textual rule of hefsed meruba (undo personal cost) or of not needing to spend more than 20% on an asei, there are many such formalizations. In the realm of aggadic values, it’s easy to see cases where the person’s sacrifice offsets any climbing up the spiritual ladder one might gain by being machmir. And of course, there could well be a pragmatic history that in this case we protected the person. It isn’t a concern from the bottom that we are imposing upwards, but part of the ideal the poseiq is trying to cast onto the situation.


I’m not sure what if anything we should assess about how conclusions were reached from the phrasing of the mishnah. (Another issue raised by RtCL.) This is a style of composition that values rememberability over everything, even precision (chesurei mechasra vehakhi ketani; or bameh devarim amurim, without the “meh‘ written in; etc… a mishnah can have elided words, or be discussing a particular unnamed situation to the exclusion of others). Why would we think that it reflects the actual process used to reach the conclusion?

Halachic Process, part II

So far, I’ve discussed how I think halakhah works, and how I think it doesn’t. To refresh — fitting devar Hashem into this world an our minds requires simplifying modeling, “shadows” that only capture aspects of the fuller truth. These models can conflict, leading to machloqes. It also means that living by halakhah will requires assessing conflicting priorities. Ideally this should be made by someone immersed in the culture. As we lose the Sinai culture, the poseiq has to rely ever more heavily on formal rules. However, the purpose is to clarify the issues to be weighed; halakhah is a heuristic process to find an acceptable balance.

Thus, machloqes initially comes from different rabbis giving different issues different weights. Approaching the same goal from different directions. But there is also a second effect — the process itself is halakhah, and subject to machloqes. Thus, “correct process” diverges over time, and decisions could be made off weighing different formal rules. (But the existence of those differences in rules originate in differing weights.)
Therefore, at this point in time, the outermost layer of the onion might look different in different people’s hands.

Some of the thornier problems of eilu va’eilu come the self referential nature of halakhah. One paradox discussed here before is that the range of opinions about which one can say eilu va’eilu is itself subject to eilu va’eilu. But how can I say that I accept someone’s position as a “va’eilu“, an expression of the word of G-d, when part of that position is not to accept mine?

This is true both of the issues, and in how one weights them. They must make sense in relation to the halakhos of halakhah-making (hora’ah). To take an extreme case: A process that values a 15 minute interruption (perhaps on the ground of tirkha detziburah — bothering the community) more than a fundamental issue like mamzeirus would not be considered halachic. And this notion has profound consequences on aggadic issues — whether one considers a particular religious feeling to be a desideratum or as assimilationist would be the difference between mandating and prohibiting!

Let’s say we define a valid “eilu” as one produced by a proper use of the halachic process. Well, since that process itself is subject to dispute, there are bound to be decisions that aren’t in my range of “va’eilu” because they follow a different set of rulings about how to make halakhah than I follow. But those pesaqim too came from the process… at some point there must have been a common ancestor, and it could very well be that if we look at this metaprocess, both sets of pesaqim-about-making-pesaqim are valid after all. A self-denying paradox, depending on how deep you look at rules for making rules or the rules for making the rules by which we make the rules…. If so, there is no end (im kein ein ladavar sof), no?

These various factors that the poseiq must weigh come in three general areas: legal procedure, minhag and aggadah.

Legal Procedure: Not only do the formal halachic texts spell out the various values for consideration, the process itself is an issue that suggests how they are weighed. The difference in authority based on the era in which the idea is first articulated — tanna, amora, rishon or acharon. Within an era, where two sides can be considered worthy disputants, the notion of ruling according to the latter. Or one’s rebbe. Or the majority. Etc…

Here are some examples of halachic procedural issues and how they play out.

1- The Gra and Brisk place the greatest emphasis on sevarah and the mechanics of the halachic rules as laid out in various texts.Within that basic orientation, the Gra has a strong emphasis on Ravina veRav Ashi sof hora’a that true halachic decision-making ended with Ravina and Rav Ashi, the compilers of gemara. There is also a story in which one of his students told another that their rebbe was like a tanna. The Vilna Gaon overheard that conversation and corrected him. “Not at a tanna, only one of the later rishonim.” In any case, someone with the authority to engage in a dispute with anyone else after the close of the gemara. The Chazon Ish also accords the Gra the authority of a rishon. (And among Chassidim, the same is said of the Ba’al Shem Tov.)

2- Rav Moshe Feinsteinzt”l was asked by the New York Times how he rose to prominence as America’s premier halachic decisor. Rav Moshe explained that he simply answered one student’s question, and then another, and word of mouth lead to consensus. This is a derivative of the notion of following majority, and one of following one’s rebbe, not quite either. Therefore, it lacks the effectively absolute weighting of a majority counted in Sanhedrin, or following one’s primary rebbe. But similar enough to lend Rav Moshe’s position great authority. Thus, this is the weighting of Rav Moshe’s a formal ruling, not an absolute rule itself.

3- A longer example of differences in procedural concerns: The Rif (end of Eiruvin) states that the greater authority of the Talmud Bavli over the Yerushalmi is an application of the rule that halakhah kebasra’i, the law follows the later authority, since he represents a later development of the law, taking the earlier into consideration. And that is what we generally see in Sepharadic practice. Ashkenazic practice has more exceptions, cases where the norm of early Ashkenaz is defended and continues through to this day despite running against the gemara. The rule is simply less central to Ashkenazi weighting systems.

Professor Agus traced a number of Jewish practices, Hebrew pronunciation and population flows. He concluded that the immigrants that became the Sepharadi community came almost exclusively from Bavel. Ashkenaz was formed by a richer mixture of Babylonian and Israeli refugees. This would explain why so many Ashkenazic practices that Tosafos and other rishonim have to creative defend against the Bavli find their sources in the halachic midrashim and the Yerushalmi. Israeli sources. This would explain the lesser Ashkenazi weighting for the Bavli as being about local ruling and following one’s own rabbeim. Having these stattered sources rather than the Sepharadic tradition based on the same sources as the single text of the Bavli means that Ashkenazi rishomin perforce had to value minhag avos more, whereas Sepharadim would not cause the same upheaval by being textualists.

There are two reasons given for washing mayim achronim before benching. The gemara explains that (1) one’s hands should be washed of before benching, no less than one does before eating hamotzi. A naive read would seem to imply this is about tum’ah, just as the initial washing is. And (2) they used to use a kind of salt from the Sodom area which could injure the eye. Therefore, for health reasons, one should wash one’s hands at the end of every meal.

Tosafos start their discussion with the realization that in practice, Ashkenazim do not wash mayim achronim after every meal. They do not make the implication from the comparison to washing before the meal that this washing is related to tum’ah. And since we no longer use Sodom salt, there is no motivation any more to wash. In other words, we have minhag avos saying don’t wash, and the Bavli could be read in a way as to not imply that we today need to wash. And so they rule we do not need to wash. In fact, this could be said as following the Yerushalmi, which only mentions the salt problem and doesn’t make the comparison to washing off tum’ah before the meal altogether.The Vilna Gaon and Shulchan Arukh haRav, who both share a textual focus that centers on the Talmud Bavli, both recommend washing mayim achronim. But since the gemara’s conclusion is escapable, only as custom, not as law. As law, and as practiced by Sepharadim, the obligation would be like washing before bread — applying to women no less than men. The custom, however, was only accepted by men.

Minhag: Among Yekkes, in contrast to the Litvisher yeshiva’s focus on textual sources and authority, far more emphasis is placed on minhag avos, following the ruling upheld in practice by the community. Every community gives some priority to existing pesaq, but among some it is more pronounced. Leading to differences in when to follow consensus or informal majority, or some other procedural gray area (even if the gray might be quite dark or almost off-white).

One also sees this distinction in tendencies in the Mishnah Berurah vs. those of the Arukh haShulchan. The Mishnah Berurah rules according to halachic mechanics, often coming up with conclusions not actually in practice by any community. His general approach is to follow the majority of later published opinions, focusing on the development of halakhah after that implied by the standardization of the part of Shulchan Arukh with the Bach and Taz. (Looking at the introduction, it was not the Chafeitz Chaim’s intent to produce a book of pragmatic rulings, but rather a survey of these later opinions that came out after the last book readily available to most Jews — the standard edition Shulchan Arukh. However, this distinction only shifts the point from the Chafeitz Chaim’s intent in writing it to those rashei yeshiva who did shift the use of the Mishnah Berurah to the pragmatic plane.)

The Arukh haShulchan, on the other hand, gives emphasis to what was the local minhag, and will consider factors like the minority opinion if that justifies the halakhah as practiced. Because, as noted above, the rule to follow majority only loosely applies to counting published texts. And besides, does not common practice imply that many unpublished rabbinic opinions did support it?

Rav Dovid Lifshitzzt”l‘s advice to me when I was setting up my home was to follow the Arukh haShulchan as a pragmatic guide, as it best represents the halakhah as followed by my ancestors in Litta. R’ Henkin and R’ Yaakov Weinberger are recorded by students as telling them similarly. Someone who follows this preference for the Arukh haShulchan is likely to have a minhag avos orientation; although following it over the Mishnah Berurah isn’t itself an example of such behavior. What Rav Dovid taught me to do is follow a formal ruling, a text, written by someone with a strong belief in the authority of minhag. That is different than accepting halakhah as a culture passed from parent to child, and not requiring this formal analysis. A difference between seeing halakhah entirely as law, or also acknowledging it as “Orakh Chaim“, (literally) a “lifestyle”.

This is also a paradox in following the Chasam Sofer’s motto of “chadash assur min haTorah“. (“The new is prohibited by Torah law”, a motto taken from a quote about the law of using the new year’s grain for one’s own food before the omer offering.) This path calls for one to consciously imitate a kind of Judaism that wasn’t founded on conscious imitation of the past! It itself is “the new”! And in fact, because it is lifted to formal process, and a conscious attempt to preserve, the result is less fluid than the pre-declaration lifestyle they are trying to preserve.

I didn’t mean this “paradox” as a disproof. Rather, just pointing out that “chadash assur min haTorah” is an equal and opposite reaction, and not (as it seems at first glance from the words) a preservation of pre-Haskalah life. Like Chassidus, neo-Orthodoxy, the Yeshiva movement or Mussar, it too is a shift away from minhag avos to reliance on a formalization. Which was inevitable; the ghetto lifestyle had no equivalent anymore.

Aggadic Values: When multiple solutions are supportable, the poseiq may choose the conclusion that best satisfies the questioner’s quest to be holy and whole. There are numerous examples of such rulings from Chassidic or Mussar sources. Such as: Chassidim permitting hand-clapping to enhance one’s singing and Shabbos experience. The preference to prohibit that one would be left if considering only textual sources of formal halachic codification is outweighed by the aggadic value of having a more passionate ecstatic Shabbos experience. Similarly, Mussar stories of Rav Yisrael relying on a lenient ruling on how much water to use for hand washing rather than be stringent at the expense of demands the ultimately fall to water drawer or the maid who brings the water to the table. It reflects a different prioritization of the values that the situation brings into conflict.I feel R’ Dr Haym Soloveitchik neglected this element of aggadic value in his famous essay “Rupture and Reconstruction” (Tradition Magazine, Summer 1994). Dr Soloveitchik creates a dichotomy between an intellectualized formal halakhah, and a felt halakhah of culture. With the rupture in culture caused by the Holocaust, we shifted to relying more on texts and formalization. And Dr Soloveitchik associates this with his father, R’ JB Soloveitchik’s lament about the loss of the erev Shabbos Jew; the Jew who not only keeps the precise details of Shabbos, but can feel the anticipation of its arrival on erev Shabbos. As R’ JB Solovetichik describes experiencing as a child in Chaslovitch, a town with a Litvisher rav and a primarily Chabad community.

However, to my mind, one misses something by conflating cultural observance with the cultural transmission of values. One of the dangers we all face in our observance is falling into the trap of mitzvos anashim meilumadah, following the law simply because it is how we were raised, with no underlying belief or quest for holiness. Similarly, the first generation of Chassidim changed their practices in accordance with their new path to holiness without a mimetic tradition, and in fact, despite it. These two factors are distinct alternative is formal legal process. The space of factors to consider contains three extremes in a triangle, not a dichotomy.

I believe that it was this element that changed most with the rupture in Jewish culture caused by the Holocaust. The drift away from prioritizing minhag avos was already well underway since the days of the Baal Shem Tov and Vilna Gaon, with the fall of the ghetto walls. But they were ideological motivated — the new perspectives (new angles of lighting) caused by their respective movements forced new pesaqim. With the Holocaust, we lost touch with those ideals, thereby needing to rely more heavily on the weightings implied by the formal process, shifting the Mishnah Berurah from a tool for studying halakhah in theory to a renormalization of practice.

And so, the 19th century was largely one of Isms. And during that time, aggadic supporting  pesaq came to the fore in many circles. Personally, this is where my own preferences lie; I would be happier if more poseqim resolved their gray areas and chose their sides of machloqesin based on their overall view of the values in conflict. Deciding which branch of the tree best fits the forest they’re trying to plant.

The interplay between these basic tendencies is critical. Without minhag, we could allow halakhah to drift into something unrecognizable based on the latest theory. Without the occasional textualist being willing to challenge the status quo, forgotten halakhos would lead to erroneous practices that are then enshrined over time. And without someone trying halakhah back to the basic goal of “his-haleikh lefanai veheyei samim — walk yourself before Me and be whole”, we fall into the current trap described by R’ Dr Haym Soloveitchik. “Having lost the touch of His presence, they seek now solace in the pressure of His yoke.” Repeatedly but unsuccessfully trying to fill a spiritual void by seeking stringency after stringency in halakhah.And even within each of these three categories (procedure, minhag and aggadic value), different poseqim would weigh different factors differently. What does the notion that Ravina veRav Ashi sof hora’ah (Ravina and Rav Ashi, the primary compilers of the Talmud, mark the end of halachic determination) mean for the relative weights to give rulings that have no known formal discussion until after them? Different poseqim, different prioritization.The Gra is not only process-centric, he also places a huge gap in authority between the Talmud and Ravina veRav Ashi and anyone afterward. Between the two, the Talmud’s authority ends up very great. Much more than in the weighting system of anyone else that comes to mind. (Except maybe the Rambamists, in theory. But they believe the Geonim and the Rambam’s Yad accurately record pre-Talmud textual mesorah, and thus give them that kind of weight as well.) For example, he follows the implication of the gemara that one should only use two matzos at the seider, even though one is broken well before hamotzi, and thus one doesn’t haver two full “loaves”. The Talmud considers the concept of “poor man’s bread” is part of the same concept as the meal’s hamotzi, and thus recommends using less than the usual two full loaves, not more by adding a third!Brisk stresses the Rambam not just in study methodology but also as a consequence they also de facto end up giving him more priority in pesaq than would other East Europeans. This gives their process orientation a different skew than the Vilna Gaon’s.

To show how differences in stressing various corners of this triangle play out, let’s look at women bentching with a mezuman. (For a good survey of the halachic issues as a whole, see R’ AZ Zivitofsky’s LegalEase column.) The supported possibilities are:(1) The gemara seems to say that three women who eat together must, just as three men must.(2) The Beis Yosef says they may make a mezuman, and should do so, but are not obligated to.(3) The Mishnah Berurah shifts that preference to concluce that while three women may makes a mezuman, the preference it that they don’t.The minhag avos oriented poseiq would have to explain why the answer is “don’t”, or at most “rarely”. After all, how many of our grandmothers took care to participate in a mezuman in this situation?The aggadic value oriented poseiq would be looking at the asker to see whether her goal is maximizing her avodas Hashem or some kind of adulteration of Torah values, or…. And then, depending on whether his aggadic orientation is toward finding ways to cleave to Hashem or toward the discipline necessary for wholeness, or …. he would have to come up with a ruling.The formalist’s answer would depend on whether he emphasizes Shas (the end of hora’ah), the Beis Yoseif (the end of the previous era with his Shulchan Arukha) or Mishnah Berurah (relatively recent codification).

Interestingly, though, the non-American Briskers (trying to exclude RYBS, RAS, RALichtenstein and the YU community) are NOT true to form on this. By their normal stress on their usual sources, the Brisker Rav and his talmidim should have required zimun for women, for the same reason the Gra does. His fealty to minhag avos and aggadic values are not non-zero, and for him they lead to not quite loyally following the usual sources. Even though in this case it’s a leniency.

This concludes my core thesis about how halakhah is made. Starting from the impossibility of capturing Hashem’s Word to forcing equally valid simplified models. The need to construct and follow a single consistent model. How the mapping is also bound to have to deal with conflicting values even within a single position. The shift over time with how we weigh the sides of these conflicts as the process is less inculcated and more conscious and though out. The three core areas of such issues, the nuances of differences within each, and how they interact: the relative weights of the formal rules used to identify the issues, the common practice that is actually followed and inherited from our ancestors, and choosing a model of the halakhah that fits our aggadic values and the path we are following to sanctity. Hopefully the discussion included enough examples along the way from teshuvos and famous rulings to show that this theory, while not articulated, does explain how halakhah is, in reality, done.I still have enough notes left from the Avodah discussion of these ideas I wish to share to warrant another blog entry of random related thoughts, be”H.