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.

14 thoughts on “Halachic Process, interlude: What it isn’t

  1. <>

    there is zero prohibition of listening to music in the omer nor of parting in the rishonim

    the ONLY issur is reikkudim to music. This morphed by the acharonim to go further.

    The original Rishonic model would permit BOTH
    listening to music as in a concert
    partying bu w/o any musical accompaniment

    Any other model is strictly an aharonic humra, and not ikkar halacha.

    This can be verified by reading the Tur and Beis yosef, the Shulchan aruch etc The first introduction of greater issur is the Magen Avrham and is codified by the Aruch hshulchan

    What has happened is givne the facts on the ground after these humros are in place an anchronistic ratoinalization is formed to make this the structure of the original aveilus. the Tur says “miktzas aveilus” So does the Kitzur.
    KT
    RRW

  2. <>

    The 10 commandments imporews us that our animals are to ‘rest” on Shabbos just as we do.

    yet the Tur [end of orach chayyim Siman 246] quoting Rabbeinu peretzsays that a simple act of hefker beino uvein atzmo FOR THE DURATION OF SHABBOS ONLY is sufficient to be mattir a Jew to have aGentile hire his animal on Shabbos despite the Biblical requirement of “shevisas behemto” “af al pi she’eino mafkir legamrei… ayein sham

    re: consistencies: how differenet really is this then the C loophole of selling one’s business on Shabbos?

    KT
    RRw

  3. <>

    I would suggest reading Dr. Jacob {ya’alkov] Katz’s works espcially Shabbos Go and his artcile on permitting travelling on a boat on Shabbos for “end-driven” pesak.

    I would suggest taht O p’sak is often “goal driven” sometimes to be mattir what is being done [e.g. clapping/dancing on Shabbos] or to produce issurim where there used to be none [e.g. women reading the Megillah for themselves or for other women - celearly permittd by Beis Yosef himself a Kabbalist]

    I am not sure how clapping/slpping on Shabbos for musical purposes is any better halahcially than playing a guitra on Shabbos, the same Talmudic g’zeria applies – shema yetkanken klei shir. I am bewildered as to how the current halachic norms are objective on this matter, either BOTH should be assur or BOTH muttar.

    Maybe C halahc IS highly subjective, but are we wiling to use this lense on ourselves, too, or only focus on the shortcomings of others?

    Shouldn’t keshot atzmecha v’achar kach keshot acheirim exhort us to greater objectivity and fairness in our own pesak BEFORE we point fingers?

    KT
    RRW

  4. “”Or, amoraim were unwilling/unable to dispute the conclusions reached by tanaim, 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.””

    An amora could not dispute a Tannaitic statement otright. OTOH amoraim qualify virutalyl any and every Tannaitic statement and limt or expand its scope.

    Even today, suicides are nearly ALWAYS deemed shelo midaa’s. Thsi was not always the case and in earlier generations suicides wer often buried at the edge of a cemetery. This is rare today. We have raised the bar of “mida’ato” so that virtually any suicied is ruled against their will.

    There is a worthwhile read by Ruth Sandberg on the expansion and contraction of Halchic norms over the generations

  5. <>

    See Artscrol Kesubos 85a note 17: in later tiems when econmic conditions changed the enacted that even movable items…

    See ARtscroll Kesubos 85a3 note 26: Rif citing a Gaon that no judge can decare… even though it is found in the Talmud…

    See Artscroll Kesubbos 85a2 note 10 all 3 laws are clear and uncontested neverthelss Rambam states taht nowadays no judge may exact property from orphans on the basis of his own assessment

    KT
    RRW

  6. <>

    FWIW Kesubos 85a Rava unconditionally accepts the testimony of his wife [both a woman AND A a relative] regarding the trustworthiness of a omwn re: giving an oath but rejects the ingular testimony of Rav Pappa because he is ONLY 1 witness!

    Rava ssates: re: bas rav Hisda [i.e his own wife} I am CERTAIN she would not lie, about Rav Pappa I am not so positive.

    KT
    RRW

  7. I think you were a little careless in your discussion of nulifying marriages. Rav Rackman’s innovation was to nullify marriages retrospectively. It was fairly common in the Middle Ages, before our current practice of performing eirusin and Nissuin at the same ceremony, for communities to enact general takkanos prospectively nullifying marriages not made in accord with the takanah (any kiddushin not performed with a minyan was a pretty common one.) There are a number of t’shuvot of the Rishonim and Acharonim paskening that such takannos are valid and enforcable, and the girl (it was usually a girl and not a grown woman as the bride in these cases) did not require a get. If I recall correctly Rav Kook wrote a t’shuvah regarding the applicability of such a takkanah in the Sephardic community in Yerushalayim to kiddushin given in the marketplace elsewhere in Israel.

  8. Mike,

    I believe you are mistaken. I have been listening to over a year of weekly lectures given by R’ Rakeffet in 1993-1994 on the subject of hafka’as qedushin. It was never common. By the end of the eonic period, we have no record of it being used at all. Even the Rosh, who proposed such a taqanah did not actually apply it when the case came up halakhah lemaaseh. Similarly the Rashba, in his teshuvos. The Rashba simply concludes that if hafkaas qedushin were so easy — why do the last 2 chapters of Yevamos exist?

    There is also a significant difference between saying a unified qehillah can pass a law that declares all future ceremonies of a certain format invalid (or an invalidation of a get declared as grounds for retroactive annulment) and annulling marriages on a casewise basis.

    -micha

  9. I think you missed my point. I was trying to say what I think you meant by your second paragraph. However, I think the key difference is not blanket takkana versus case-by-case, but the difference between prospective and retrospective application.

    Takkanos to nullify a marriage prospectively, i.e. to prevent the kiddushin from being chal in the first place, despite their having no d’oraita defect, were fairly common in the Middle Ages, and were enforced even into this century. They eventually led to our current ceremony, combining Kiddushin and nissuin. What was uncommon, if not unheard of, and what is Rav Rackman’s innovation, is to use hafka’at kiddushin to nullify retrospectively, that is, l’mafreya after some period of them having been (or seeming to be) a valid marriage. If I have time I will provide ma’arei mekomot after Shabbat.

  10. I don’t have much time, but Sh”ut Tashbat”z 1:133 has a discussion of the difference between prospective and retrospective cases. Rav Rakeffet’s lectures of 12/25/2005 and 1/1/2005 (and maybe a couple around them) discuss a couple of cases in Eretz Yisrael 100 years ago.

  11. Since I’m still in the 1990s, it’ll be a while before I get to those shiurim. But you’re right, I saw “it was fairly common in the Middle Ages”, misunderstood your “it” and didn’t get your point.

    So far, RAR noted that of the cases in the gemara, all share two properties:

    1- They are rules set in advance. E.g. Anyone who weds in the marketplace. Or anyone who sends a get and invalidates it before the get reaches his wife.

    2- They all involve an action, either a wedding ceremony that would otherwise have been valid, or a get that would otherwise have been invalid.

    And there is a question as to whether anyone after the gemara, or perhaps after the end of the central authority of the geonim, could enact such laws.

    Rabbi Rackman’s usages seems to be unprecedented. But I think you would agree to that.

    -micha

    PS: The teshuvah you half remember… Was it perhaps the Chacham Bashi about a Teimani wedding in the 1880s? I’m not in the 20th cent yet, but since you only half remember and it seems to fit…

  12. As you surmise, I was not intending to defend Rav Rackman, but to clarify exactly what was so radical about his p’sak.

    There was some dispute about the ability of communities to prevent kiddushin from being chal by a takkanah, but I believe that we genrally pasken that such takkanos are enforced. However, I do not believe kiddushin were nullified l’mafreya by the Rishonim or Acharonim, as you said. Indeed, there would have been no need whatsoever to deal with the gittin of m’shumadim, a substantial body of Shu”t literature, if the Rishonim and Acharonim felt they could just be mafkiya kiddushin l’mafreya.

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