Who may, and who must, issue halakhic rulings? Underlying issues in the partnership minyan debate

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In one of the later volumes of his misnamed Hitchhiker’s Trilogy, the late Douglas Adams has a character learn two life lessons:

a)      One should never go back for one’s handbag (lest one miss an essential opportunity)

b)      One must always go back for one’s handbag (lest one blow an essential opportunity)

The problem is that the two lessons contradict, and the character never learns which rule applies when.

The issue of “partnership minyanim” is appropriately generating much polemic and counterpolemic  and antipolemic, but I have no interest in adding more at present.  Instead, I’d like to ensure that the discussion – presumably all leshem Shomayim (for the sake of Heaven)  – generates some Torah lishmoh (Torah for its own sake) as well.  I think this is vital, because in the course of polemic debate each side runs the risk of sacrificing the capacity for reexamining evidence, lest changing one’s mind about what a particular text means be taken as a sign that one’s overall commitments are weakening or as an admission that they are insufficiently grounded in the Tradition.    

So – Rabbi Herschel Schachter’s public letter regarding “partnership minyanim” emphasizes that not every student who has learned in yeshiva, or in kollel, or even received semikhah, should consider themselves as competent to issue halakhic rulings.  In response, my friend Rabbi Ysoscher Katz notes that the Talmud (Sotah 22a, Avodah Zarah 19b) cites R. Abahu quoting R. Huna quoting Rav interpreting MIshlei 7:26 as criticizing in parallel those who issue halakhic rulings when they should not, and those who don’t issue halakhic rulings when they should.

מאי דכתיב

כי רבים חללים הפילה

ועצומים כל הרוגיה“?

כי רבים חללים הפילה

זה ת”ח שלא הגיע להוראה


ועצומים כל הרוגיה

זה ת”ח שהגיע להוראה

ואינו מורה.

What is meant by

for many are the corpses she has miscarried, and atzumim are all those she has killed”?

for many are the corpses she has miscarried

this is a scholar (talmid chakham) who has not reached the level of issuing halakhic rulings

and issues halakhic rulings;

and atzumim are all those she has killed

this is a scholar who has reached the level of issuing halakhic rulings

and does not issue halakhic rulings.

I think it is inarguable that R. Abahu teaches both lessons – the question is whether or how any of us can reliably know which rule applies to us, regarding what areas of halakhah, which degree of halakhic complexity, and under what political, social, and religious circumstances.

Rabbi Katz argues that

  1. Maharsha and Rashi disagree as to whether R. Abahu is criticizing all competent scholars who fail to issue halakhic rulings (Rashi), or only great scholars (Maharsha). 
  2. However, Shulchan Arukh 242:14 rules in accordance with Rashi against Maharsha:
  3. Pitchei Teshuvah YD 242:8 explicitly makes the point that Shulchan Arukh rejects Maharsha
  4. Rabbi Schachter’s critique assumes that a scholar risks more my overestimating than by underestimating their stature.  Since the Talmud equated the risks, he must implicitly be following Maharsha against Rashi and arguing that the risk of underestimation applies only to scholars who are great.   However, scholars who may be competent, but are certainly not great, have no obligation to rule, and therefore run no risk by refusing to do so.
  5. However, we follow Shulchan Arukh and Pitchei Teshuvah in ruling like Rashi.  Therefore we run equivalent risks either way, and each person must make their own fraught determinations as to when to go back for their handbag.

I am not convinced that Maharsha and Rashi disagree in the way Rabbi Katz argues, or that either Shulchan Arukh or Pitchei Teshuvha relate to that alleged disagreement.   

Here are the texts of Rashi and Maharsha:

Rashi to Sotah 22a

ועצומים – לשון “עוצם עיניו” (ישעיהו לג) שסוגרים פיהם ואינם מורים לצורכי הוראה.

VaAtzumim – derived from “one who forcefully closes (otzem) his eyes” (Yeshayah 33:15)

Rashi to Avodah Zarah19b

ועצומים – המתעצמים והמחרישים ומתאפקים מלהורות – הורגין את דורן ועצומים לשון “ועוצם עיניו”.

VaAtzumim – those who overpower themselves and are mute and control themselves from issueing halakhic rulings – they kill their generation;

VaAtzumim is derived from “one who forcefully closes (otzem) his eyes”

Maharsha to Sotah 22

ועצומים כל הרוגיה – זה ת”ח שהגיע כו’ –

פירש”י מלשון עוצם עיניו

ויש לפרש כמשמעו

ור”ל גדולים וחשובים שהגיעו להוראה

כמ”ש לעיל ספ”ק

“ואת עצומים יחלק שלל” –

כאברהם יצחק ויעקב וק”ל:

and atzumim are all those she has killed – this is a scholar who has reached etc.

Rashi explains atzumim as derived from “one who forcefully closes (otzem) his eyes”

But one can explain atzumim in its literal sense,

so that it means “great and important”,

as the Talmud writes at the end of the first chapter (Sotah 14a):

“and with atzumim he will take a share of spoils” (Yeshayah 53:12) –

just like Avraham, Yitzchak, and Yaakov

Rabbi Katz reads “great and important” in Maharsha as adding a qualification beyond “reached the level of issuing halakhic rulings”.  But I think Maharsha is merely offering an alternate etymology.  The question is how the Hebrew atzumim can refer to “those who have reached the level of issuing halakhic rulings but do not issue such rulings”.  Rashi argues that atzumim means “those who are otzem their eyes”.  Maharsha argues that this is not compelling, as no other instance of the noun form atzumim in Tanakh means that.  Rather, atzumim consistently means “powerful”, and is often paired with גדולים = great.  Therefore, here as well the etymology of atzumim is “great, important”.  In other words, for Maharsha anyone who has reached the level of issuing halakhic rulings is described by this verse as great and important.  Rabbi Schachter of course agrees – the remaining question is whether one can use the equation in reverse, and conclude that anyone who is not great and important has not reached the level  of issuing halakhic rulings. 

Shulchan Arukh 242:14 writes as follows:

כל חכם שהגיע להוראה

ואינו מורה –

הרי זה מונע תורה ונותן מכשולות לפני רבים,

ועליו נאמר: ועצומים כל הרוגיה

Every sage (kol chakham) who has reached the level of issuing halakhic rulings

and does not issue halakhic rulings –

behold he is withholding Torah and placing obstacles before multitudes,

and regarding him Scripture says:  and atzumim are all those she has killed

Rabbi Katz argues that the opening “Every” is intended to reject Maharsha’s claim that only some scholars – namely, those who are great and important – are criticized for not issuing halakhic rulings when they have reached the level of doing so.  However, I argue that Maharsha never made such a claim, and therefore everyone agrees that the criticism applies to all competent scholars, and the only question is the definition of competence.

Pitchei Teshuvah YD 242:8 writes as follows:

“כל חכם כו'” –

עיין במהרש”א בח”א פ”ג דסוטה שכתב

ובדורות הללו

אותם שמורים הלכה מתוך הש”ע

והרי הם אין יודעים טעם הענין של כל דבר

אם לא ידקדקו תחלה בדבר מתוך התלמוד

שהוא שימוש ת”ח –

טעות נפל בהוראתן

והרי הן בכלל מבלי עולם

ולכן יש לגעור בהן


ואפשר דדוקא בזמן הרב מהרש”א

שלא היה עדיין שום חיבור על הש”ע

אבל האידנא

שנתחברו הט”ז וש”ך ומג”א ושארי אחרונים

וכל דין מבואר הטעם במקומו

שפיר דמי להורות מתוך הש”ע והאחרונים:

“Every sage etc.” –

See Maharsha Sotah Chapter 3, who wrote

But in these generations,

those who issue halakhic rulings on the basis of the Shulchan Arukh

when behold they do not know the underlying rationale of every matter

unless they carefully examine the matter first on the basis of the Talmud

which is (the contemporary equivalent of) apprenticing with scholars –

error befalls their halakhic rulings

and they are in the category of “those who wear out the world”

and therefore one should castigate them

(see the source!).

But perhaps that was only in the time of the Rabbi the Maharsha,

when there was as yet no commentary on Shulchan Arukh,

but nowadays

that TaZ and SHaKH and Magen Avraham and other later commentaries have been written,

so that every law has its rationale explained right where the law is found,

it is fine to rule on the basis of Shulchan Arukh and the later commentaries.

Rabbi Katz seems to read Pitchei Teshuvah as relating to the word “every”, and arguing that even Maharsha would broaden the franchise today, when the existence of supercommentaries to ShulchanArukh lowers the risk that merely competent scholars will err.

I disagree.  I think Pitchei Teshuvah and Maharsha here are making a procedural , not a substantive point.  Maharsha states that there are some scholars who have reached the level of issuing halakhic rulings but only if they first study the primary Talmudic sources, as otherwise they will not understand the underlying principles of Shulchan Arukh’s rulings and misapply them.  Such scholars might feel compelled to issue rulings even when they only have time to look up the Shulchan Arukh, lest they fall into the category of “and atzumim are all those she has killed; but this would itself be an error on their part.  Pitchei Teshuvah notes that Maharsha’s argument may no longer apply, since the underlying principles of Shulchan Arukh’s rulings are now explained by commentaries on the spot and can therefore be understood without researching the primary sources.  This discussion has no necessary connection with Maharsha’s opinion as to the etymology of atzumim.

Nonetheless, both Maharsha and Pitchei Teshuvah make points that are relevant to the issue Rabbi Katz raises, in the following way:  Maharsha states explicitly that a person can be considered competent on the basis of research even if they might not be competent to answer other questions without additional research, and Pitchei Teshuvah states explicitly that a person can be considered competent if they know Shulchan Arukh and commentaries even though they do not recall the primary sources.  Each of these can reasonably be considered as setting a fairly low standard as to which scholars are not only permitted but even obligated to issue halakhic rulings.

However, here again I don’t think Rabbi Schachter would disagree.  On both Sotah 22a and Avodah Zarah 19b the Talmud continues as follows:

ועד כמה?

עד ארבעין שנין.

איני – והא רבה אורי!?


How old must one be (before one is considered competent to issue halakhic rulings)?

Forty years old.

But [Rabbah] (Rava) issued rulings (even though he died at 40)?!

(The permission and therefore obligation to rule applies to those under 40 only) if they are equal

(in scholarship to those above 40).

In other words, the question is not whether one is obligated to issue rulings in the abstract; it is whether one is obligated to issue rulings (when asked) even though someone else more technically competent is available.   Put differently, the question is whether competence is defined objectively, or relative to the available talent pool.   A related question is whether competence can be defined on a sliding scale, so that one can be obligated to answer basic questions and yet forbidden to issue rulings on more complex or weighty issues. 

My own opinion is that competence can be defined relatively, and on a sliding scale.  Nonetheless, I think it is reasonable to say that there is a standard of competence above which one may, and perhaps must, express an opinion even if others more technically competent are available.  I also think that technical competence is not the only consideration – sometimes a technically greater posek may be less aware of the social reality of a particular community, or have hashkafic positions less compatible with those of that community, or simply have done less extensive research, than a technically lesser posek.  Under such circumstances again, I suggest that the lesser posek may, and perhaps must, express their opinion.

Shabbat shalom!


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