Monthly Archives: December 2016

2016 SBM Teshuvot

by Rabbi Aryeh Klapper

Link to the Teshuvot can be found here.

The first level of moral responsibility is stimulus-response.  When presented with an opportunity to do the right thing, people at this level notice the prompt and acts properly.  This may involve as small a thing as expressing gratitude for an unexpected kindness, or as large as jumping into a burning building to rescue a trapped child.        

The second level of moral responsibility is commitment.  People at this level act not only for the moment but in order to become who they wish to be.  This may involve as small a thing as learning daf yomi in order to know Shas, or as large as practicing smiling in bleak times so that one can greet every human being with a pleasant countenance.

The third level of moral responsibility is accountability.  People at this level act not only for their own development, but for the sake of building a society that exemplifies their ideals.  This may involve as small a thing as actively seeking out and supporting the people and work that bring one’s ideals to life, or as large as genuinely seeking out constructive criticism of one’s own character and work.

The highest level of accountability – and of love – is embodied in contracts, or covenants.  Stimulus-response people make great dates; commitment people make great boyfriends and girlfriends; but halakhah teaches that true love is constituted by binding contracts that can be enforced on you even if you no longer feel the same way.  This is why signing the halakhic prenuptial agreement is an ultimate Jewish expression of love.

And yet – halakhah permits divorce, and recognizes widowhood.  Sometimes commitments end, and sometimes they need to be broken.  Some should never have started.  The job of halakhah is to create a framework of personal and social accountability that does not chain or imprison or even constrain autonomy more than absolutely necessary.   (One task of a Jewish human is to become the kind of person who experiences halakhic observance as liberating.)  

The 2016 Summer Beit Midrash grew out of my recognition that halakhah sometimes allows legal commitments, even marriage, to be torn out at the roots as if they never happened.  How can that be done without jeopardizing the whole framework of accountability?  If contracts can be broken just because they turned out badly for one party, aren’t all commercial relationships reduced to fly-by-night romances that exist only so long as they provide instant gratification?

My initial interest was in marriage, and was stimulated by the efforts of Rav Dovid Bigman and Rav Uriel Lavie to use the principle “She did not marry with that in mind” to free women who would otherwise be bound hopelessly to vegetative or absconded husbands.  I thought of kiddushin and nisuin as specific kinds of contractual relationships, and so though it might be productive to understand how that principle had played out in Choshen Mishpat (civil law) as well as in Even HaEzer (family law).

But as so often happens in Talmud, an apparent tangent turned out to be the main line of inquiry.

The SBM Fellows and I ended up seeing contract law as a fascinating window on the nature and purpose of halakhah both classically and in our day.  We grappled with general legal theory through the worknotes of Professor Chaim Saiman of Villanova Law School; with comparative contract law through the generosity of Professor David Morris Phillips of Northeastern University Law School; and with comparative marriage law through the generosity of Dr. Lisa Fishbayn Joffe of the Hadassah Brandeis Institute and the Boston Agunah Taskforce. We were privileged to hear guest shiurim and test ideas with Rabbi Chaim Jachter, author of the acclaimed Gray Matters book series; Rabbi Dov Linzer, Rosh Yeshiva of Yeshivat Chovevei Torah; and distinguished and beloved SBM alums Rabbi Jonathan Ziring and Yoetzet Halacha Ora Ziring of the Yeshiva University Torah MiTzion Beit Midrash Zichron Dov of Toronto.  Most of all, we built a community of learning that was grounded in commitment and accountability.  This was exemplified by the deeply serious responsa written by the fellows and myself individually and honed through collective critique.

It goes without saying that for those who care about halakhah, about Modern Orthodox halakhah, and about the full participation of women in the development and discourse of halakhah – there is nothing at all comparable.   

It is my privilege to present you here with some of the fruits of our labors.  We hope that they will give you joy in the moment; deepen your commitment to Torah; and help us build a relationship of mutual support and accountability.

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2016 CMTL Reader

 

Want to read the best CMTL articles from 2016? Look no further!

http://www.torahleadership.org/categories/2016cmtlreader.pdf

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The Secret Plan to Fight Famine

This week’s alumni Dvar Torah is by Tuvy Miller

Ripped from his jail cell because of his unique powers of interpretation, Yosef appears before Pharaoh and offers a well-received reading of the king’s enigmatic dream. Plenty followed by famine will strike Egypt, though he does not say why. Yosef then shifts suddenly and declares the following (Bereshit 41:33):

וְעַתָּה יֵרֶא פַרְעֹה אִישׁ נָבוֹן וְחָכָם וִישִׁיתֵהוּ עַל אֶרֶץ מִצְרָיִם

Now let Pharaoh see (lit. look out) a man discreet and wise, and set him over the land of Egypt. [1]

Pharaoh never solicited Yosef’s counsel and it seems foolish to offer it, especially given his lowly status. Nonetheless, he suggest a forward-thinking plan to ensure Egypt’s survival which Pharaoh not only adopts, but places in Yosef’s hands. He elevates Yosef to a position of tremendous power within the government that far outstrips even the powers that Yosef outlines in his proposal. Even if Yosef anticipated Pharaoh’s favorable reaction, where did he get the gumption to speak this way, and how did he know that Pharaoh would choose him? More importantly, what motivated him to suggest the plan?

Our approach begins with understanding Yosef’s use of the word ירא.  We would expect יבקש (as in Esther 2:2) as the proper verb for a personnel search process.  By saying “point out” rather than “seek”, Yosef implies that the person is already standing before Pharaoh.  He thus subtly shifts Pharaoh’s focus onto those present, including himself.

ירא also bolsters the significance of verse 37, where the “matter was good in Pharaoh’s eyes and in the eyes of his servants.”  Pharaoh and his servants recognize Yosef’s hint and they use their “eyes” to gaze upon him and select him.  Finally, when Pharaoh finishes formalizing Yosef’s royal appointment, he declaims “ רְאֵה נָתַתִּי אֹתְךָ עַל כָּל אֶרֶץ מִצְרָיִם-See, I have set you over all the land of Egypt” a sign that Pharaoh recognized the subtlety of Yosef’s formulation and respected the ambition that he perceived behind it. Yosef took a risk in presenting this plan.  

But even if Yosef limited the field to those in Pharaoh’s presence, on what basis could he expect Pharaoh to choose him specifically?  Pharaoh would presumably look for someone with experience in food collection and management.  Could Pharaoh have known that Yosef possessed such skills? [2] Where would have gained such experience?   

Upon his arrival in Egypt, Yosef was bought by Potiphar, an advisor of the king described as the שר הטבחים. Rashi understands this appellation to mean that Potiphar was the chief butcher for Pharaoh. [3] The text describes Yosef’s rise to prominence which eventually led him to oversee all the household affairs, even the food that Potiphar ate (following Rashbam’s understanding of כי אם הלחם אשר הוא אוכל).

If Potiphar was the king’s chief butcher, then to run his household, including the culinary apparatus, must have required prodigious skill. With responsibility for an extensive food supply, not to mention the need to entertain guests in a manner befitting a royal minister, the head of his household would spend time handling large shipments of food, management of the storehouses and the actual cooking. Yosef’s success directly contributed to Potiphar’s political stability and prestige. Furthermore, the meteoric rise and success of a slave would likely have attracted the attention of Potiphar’s peers, possibly even the king himself. This argument is reinforced through the textual link of the word פקד that appears in the Potiphar section  (ויפקדהו על ביתו) and in Yosef’s advice to Pharaoh (ויפקד פקידים על הארץ). The link signifies that in his advice to Pharaoh, Yosef was appealing to his previous experience in Potiphar’s house to legitimize his plan and also indicates that at least in Yosef’s understanding, Pharaoh knew of his success in managing the household.

Thus, Yosef had prior experience of which Pharaoh was aware and would have contextualized Yosef’s apparent outburst in front of the court.

Having explored one possible source for the audacity to speak in front of the king, we must explore the question of why Yosef felt the need to suggest his plan in the first place. Perhaps he word ראה will play an even more central role in answering this question.

In the beginning of chapter 42, the famine has hit the land of Cana’an and Ya’akov decides that his family requires additional supplies in order to survive. The verse that describes this realization is quite telling:

וַיַּרְא יַעֲקֹב כִּי יֶשׁ שֶׁבֶר בְּמִצְרָיִם וַיֹּאמֶר יַעֲקֹב לְבָנָיו לָמָּה תִּתְרָאוּ

Now Jacob saw that there was food in Egypt, and Jacob said to his sons: ‘Why do you look one upon another?’

The double usage of ראה here is not intrinsically significant, unless we read it in light of Yosef’s use of the same root in the previous chapter. Bolstered by the knowledge that Pharaoh already acknowledged his prowess, and by the confidence that God had granted him the ability to interpret dreams, Yosef presents his plan to Pharaoh. The unstated reason for doing this is that he knows the residents of Cana’an will require food during the famine and wants his family to come to Egypt. [4] Yosef cannot mention this outright to Pharaoh, but the ראה link signals to the reader that this is the core of his plan. In essence, Yosef’s utters ירא in order to ensure וַיַּרְא יַעֲקֹב.

Further evidence that this was Yosef’s motive emerges from the fact that when the brothers actually go down to Egypt, the verse tells us that they did so “כִּי הָיָה הָרָעָב בְּאֶרֶץ כְּנָעַן.” This seems to be unnecessary information [5] given the implicit reason Ya’akov exhorts his sons to go to Egypt for food and given the verse (41:44) which indicates that the famine had spread to the lands beyond Egypt, presumably including Cana’an. The very next verse provides an additional piece of information, describing Yosef’s role as the primary food distributor in the area. On one level that anticipates their meeting with him, but also hints to the fact that the famine in the Land and his role as the משביר are closely linked. He became the משביר so that when the famine hit Cana’an, he could assist his family. The last piece of evidence for our approach to Yosef’s plan is that when the verse talks about the brothers coming before him for the first time it says “וירא יוסף את אחיו.” When they come before him, Yosef obviously sees them, but the “seeing” here is meant to signify that on a deeper level, this has been Yosef’s plan all along. He wanted his family to come down to Egypt so that they would have food during the famine. [6]

This episode presents a powerful notion to ponder.  We often assume that a frontal, vocal approach works best with people we want to help.  This is partly because we want to demonstrate to others that we care about them, and on some level, we seek a certain measure of self-gratification that comes with a more public display. Yosef pushes us to consider that sometimes, we may be most effective at caring for others by using subtler, more staid means. The other person may not have any hint that I was involved in helping them and though I lose a certain dimension self-gratification, I gain another when I see that acting in this way was best for them.

 

Notes:

[1] All Biblical translations adapted from JPS 1917 ed.

[2] It is of course possible that Yosef’s audacity derived from the confidence that his dreams gave him or, as Netsiv argues, from the knowledge that God was with him and that he was an agent of the Divine plan. Our interpretation takes a different route that attempts to explain Yosef’s behavior in slightly more naturalistic terms. This alternate perspective does not, however, necessarily negate the first two.

[3] Many of the other classical commentaries (Radak, Ibn Ezra, Ramban) contend that he was the king’s chief executioner, the king’s justice. This approach yields a slightly different approach to Yosef’s prior experience, but further analysis is beyond the scope of this discussion.

[4] Either to have them bow before him in fulfillment of his earlier dreams, to provide for them or both. Upon further reflection, given that the text (42:9) indicates that Yosef’s  recollection of the dreams occurs after they appear before him, it would seem that his primary aim here is to provide for them. This overall interpretation of Yosef’s ‘hidden’ plan assumes that Yosef bad a far more active role in this Divinely ordained process than one might originally have thought.

[5] Radak implies this and Shadal explicitly notes this.

[6] See Ramban (41:33) and Abarbanel (end of ch. 41) for approaches that overlap with ours.

 

Tuvy Miller (SBM 2013) is in his second year of semikha at RIETS and teaches at SAR High School as a Beit Midrash Fellow.

 

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Brain Death and Halakhah: A Footnote with Uncertain Implications

by Rabbi Aryeh Klapper

People who die as the result of errors in halakhic reasoning are no less dead than people who die from medical errors. [1] Paskening life-and-death issues is properly terrifying – what if one errs?  and yet, because the stakes are so high, the responsibility to speak if one has something to say is also tremendous.

But over time, at least the textual grounds for decisionmaking are usually clarified.  Psak on such issues is usually a choice among the positions of gedolim without presuming to add new evidence.  

Formal philosophic reasoning can sometimes add new dimensions to a halakhic argument that has been well-trodden by much greater scholars.  I try to make a contribution along those lines to the issue of brain death in my essay “An Alternate Construction of the Debate”. [2]

Here, with great trepidation, I want to offer a simple reading of what may be an important text for some definition-of-death purposes.  I acknowledge up front that the reading as developed in response to one offered by Rav Nachum Rabinovich of Yeshivat Birkat Mosheh, who is an overwhelmingly greater posek and scholar than am I.  Furthermore, Rav Rabinovich has seen my arguments and they have not convinced him.  Halakhic readers should weight our positions accordingly.  

Nonetheless, I feel obligated to present the truth as I currently see it, and to see whether it finds a place in the discussion.  Critiques are of course welcomed and encouraged.

The halakhic argument about brain death is often represented as a dispute between Rav Moshe Tendler and my teacher Rav J. David Bleich.  I recently discovered that in a 1968 article (“What is the Halakhah for Organ Transplants”. Tradition 9:4), Rav Rabinovich anticipates one of Rabbi Tendler’s key arguments.  He states that a brain-dead body lacks a central controlling force, and is therefore dead.  

Rabbi Bleich denies that the diagnosis of brain-death means that the body has lost all integration.  Many have discussed whether he is correct.  But reading Rav Rabinovich, it became clear to me that there has been insufficient discussion of whether the definition is halakhically true in principle.    

Rav Rabinovich cites Rambam’s Commentary to Mishnah Ohalot 1:6 as his source.  As his scholarship is astonishing, and his readings in my experience generally impeccable, I was very bothered that this citation didn’t ring true.  

Yeshivat Birkat Moshe’s website has a שאל את הרב link, so I emailed to ask whether Rav Rabinovich still maintained this reading.  To my delight, Rav Rabinovich responded directly, assured me that he still maintained it and referred me to the discussion in his later עיונים במשנת הרמב”ם (p. 160-161).  In a further iteration, I failed to convince him to hold otherwise.  So it is my privilege and responsibility to now lay both readings before you, and ask for your comments.

Here is Rav Rabinovich’s original formulation:

It is also clear from the case mentioned of the woman who was decapitated that the absence of any possibility of revival confirms the status of death even though there may still be muscular spasms. Maimonides (Commentary to Mishnah Ohalot 1:6) explains that the organism is no longer considered to be alive “when the power of locomotion that is spread throughout the limbs does not originate in one centre, but is independently spread throughout the body. ”  It follows that if the restoration of central control is feasible, the commandment to save life applies. Obviously then the definition of death depends upon the availability of more sophisticated techniques of resuscitation. Here again, the applicability of such methods and the consequent decision as to the onset of death is determined according to the judgment of the physicians.

Mishnah Ohalot 1:6 reads as follows:

,אדם – אינו מטמא עד שתצא נפשו

ואפי’ מגוייד ואפי’ גוסס – זוקק ליבום, ופוטר מן היבום, מאכיל בתרומה, ופוסל בתרומה

;וכן בהמה וחיה – אינן מטמאין עד שתצא נפשם

,הותזו ראשיהם, אף על פי שמפרכסים – טמאין

:כגון זנב של לטאה שהיא מפרכסת

Human beings are not metamei until their nefesh departs –

even if their arteries are severed, or if they are irreversibly and imminently dying – they (are legally alive for all legal matters, including those that affect the status of others, such as marriage).

So too, beheimot and chayot are not metamei until their nefesh departs.

However, if they are decapitated, even though they are mefarkheis (=twitching?tremoring?) they are metamei,

This like the tail of the lizard, which is mefarkheis.

The problem with the Mishnah’s last line is that a lizard with its tail cut off is not dead, and the tail by itself never contained a nefesh.  In other words, the twitching lizard tail provides no information whatsoever about the presence or absence of a lizard nefesh.  How, then, can it be a useful analogy for determining whether a decapitated but twitching cow still has a nefesh?

Here is Rambam’s commentary, in the Hebrew translation by R. Yosef Kapach (the differences in the Ibn Tibbon translation are minor and don’t affect our discussion):

.והתנועה שמתנועעין האברים אחר המות קוראים אותה פרכוס

.ולטאה – הוא “אלסאם אבוץ”, לפי שבעל חי זה מתנועע זנבו זמן מה אחר שנכרת

.ויארע זה למקצת מיני בעלי החיים אם לא היה הכח המניע מתפשט בכל האברים מיסוד ומוצא אחד אלא יהיה מפולג בכל הגוף

The movement which the limbs move after death is called pirkus.

The (=Arabic translation of /lizard/) because this animal – its tail moves for some time after it is severed.

This happens to some species of animal if the motive force was not spread to all the limbs from one foundation and source, but rather is divided throughout the body.  

Rambam explains why the lizard’s tail moves after being severed.  It is because the lizard, even when fully alive (=possessed of its nefesh), has a motive force that is distributed throughout its limbs rather than centralized.  (For our purposes, it does not matter whether Rambam’s explanation is scientifically correct.)   This is true of the lizard before its tail is severed, and after.

How can we learn anything from the lizard about species that have a central motive force?  Rambam explains that the severed tail of a lizard does not contain a nefesh, and yet it moves!  Therefore movement does not prove the presence of a nefesh.  

Rambam is careful not to say that the absence of a central motive force equals death or proves the absence of a nefesh.  Lizards are alive, with tails and without.  

Now it is possible that other animals are considered dead when they become like living lizards, i.e. when they lack a central motive force.  This argument can be made on the basis of pure reason, or on the ground that it is the best reason for saying that decapitation equals death.  (Although one must think about which part of the animal would be alive if decapitation does not equal death.)  But I contend, with all humility against R. Rabinovich, that nothing in Rambam’s Commentary strengthens this explanation of the Mishnah.

On p. 104-5 of his Defining the Moment, Rabbi Dr. David Shabtai makes a subtly different point.  (He accurately notes that R. Herschel Schachter makes a “similar rebuttal of this argument” in B’Ikvei haTzon 36:12 p. 250).  He suggests that “while Rambam certainly claimed that integrated motion is indicative of a living being, he never claimed that it was the very definition of what it means to be alive”.  I do not agree that Rambam claims that integrated motion is proof of life – all he says is that motion per se is not proof of life.  

If I am correct, there may be no textual evidence at all for the “dis-integrated organism” definition of death, especially as applied to the nervous system exclusively.  

This may matter to very few people; I suspect that the appeal of the definition is fundamentally intuitive.  I think Rabbi Tendler generally presents it as a given, rather than as something that requires demonstration.  I don’t know that Rabbi Bleich ever fully rejects it.  It gains enormous practical support if we acknowledge that many cells in the body remain functional long after death is declared by any definition.

But I wonder now whether it wasn’t Rav Rabinovich’s argument that enabled this definition to gain an initial foothold, and if so, whether it bears rethinking, regardless of one’s overall position on the question of whether braindeath equals halakhic death.

 

Notes:

[1] I borrowed this formulation from one regarding moral reasoning found on the back cover of Janet Radcliffe Richards, The Ethic of Transplants; Why Careless Thought Costs Lives (Oxford).  The copy I read had been distributed by the Halakhic Organ Donation Society.  My HODS card is here.

[2] forthcoming in Halakhic Realities: Collected Essays on Organ Donation, Vol.2, to be published by Maggid and IRF, edited by Rabbi Dr. Zev Farber.  See also http://torahleadership.org/categories/vayigashbraindeath_1.pdf,  http://torahleadership.org/categories/linzerbraindeath_2.pdf,  http://torahleadership.org/categories/brain_death__halakhah__and_ethics0.mp3,  http://torahleadership.org/categories/brandeisbraindeath.mp3.

[3] The Ibn Tibbon translation reads:

והתנועה אשר ינועו האיברים אחר המות יקרא פרכוס

הלטאה – הוא שם השרץ וזה בעל חי יתנועע זנבו מאד מאד אחר חתוכו

ואמנם יקרה זה לקצת מיני בעלי חיים כאשר לא יהיה הכח המתנועע מתפשט בכלל האיברים משרש והתחלה אחת אבל תהיה מתפרדת בכל הגוף

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Are Day Schools Worth the Money?

by Rabbi Aryeh Klapper

Many Orthodox Jews assume that socially isolating schoolchildren is an absolute cultural necessity, and some further believe the same about intellectual isolation.  The cost of setting up and running a school that meets governmental standards, and that enables graduates to earn a decent living, is therefore a given.  Day schools only have to justify expenses above and beyond that minimum, and they are competing only with each other.

Many Modern Orthodox and just about all non-Orthodox Jews, however, have additional (or conflicting) educational values and priorities for their children.  Some require a school to meet minimal standards such as having enough AP classes to enable competitive application to elite universities, or a genuine team sports program.  Others go further and will choose a school for their children based primarily on whether it will enable their children to thrive emotionally, socially, or academically, with Jewish content and influence just one among a constellation of competing values.    

For these families, Jewish day schools are competing with public and private schools.  We seem to be winning the competition less often than in the past.  This is a crisis both because we need the students generally, and because we particularly need the parents who can afford other private schools.  

How can we win the competition more often?  Dr. Harry Bloom recently argued that we need to showcase the objective secular academic achievements of students, such as SAT scores.  I think that is very likely true, but that doesn’t necessarily mean that we should put a greater percentage of our  resources into such education.

Premise 1: Jewish day schools have no innate economic advantages over either private or public schools.  The only special workplace benefit we offer is adaptation to the Jewish calendar and – perhaps owing to the cost of day school tuition – there is no deep pool of highly talented Jewishly observant science or literature teachers who might take less money in exchange for this benefit.  Furthermore, because we appeal to a wealthy community, we tend to compete with well-funded public schools.

Premise 2: Jewish day schools have an innate academic disadvantage with regard to public or private schools, namely that we need to spend time on Jewish stuff.  Time matters – all other things being equal, students will learn more math etc. in a school that spends more time on math, and there will be more time for office hours, professional development, and the like in a school with fewer classtime needs.

Premise 3: There is no reason to believe that Jews, or members of the Jewish community, are better at running schools than other people with similar educational backgrounds and experience.  

Conclusion:  Therefore, it is unreasonable and unrealistic to expect day schools to be better academically on average than their secular peer schools, public or private.  Every school should strive for excellence, but in the end, we do not live in Lake Wobegon.  If the claim of academic superiority is our only hope for sustainability, we have no hope, unless the Jewish education we provide makes the overall academic product superior.

Here is the same argument in a historical key.

Once upon a time, Jewish day schools were academically superior to non-Jewish competitors because

  1. they drew students from a community that was on average more academically motivated and intellectually developed than its economic peer communities.

This is no longer true, not because Jews are less motivated than we were, but because we have become  much wealthier, and so are now competing with more motivated peers.

  1.  Jewish studies, owing to the amount of time spent on them with high academic expectations, gave many students – especially very talented students – a more challenging and rigorous academic experience than they could receive at the same grade level in other subjects.  Thus the standard claim that studying Talmud improved math SAT scores, and in general fostered logical clarity and evidence-based argumentation.

It was true, however, that successful Talmudic rigor did not consistently translate into Jewish inspiration or identification, and worse, that mediocrity or failure in Jewish studies sometimes led to serious alienation from religion or broad self-image issues.  The result of this was that Jewish Studies curricula and pedagogy became less focused on the immediately cognitive, and much more focused on broad life-relevance than on Jewish cultural density.  The result of this is that students and parents now look for ways that students’ Jewish Studies performance can be improved by other disciplines, rather than vice versa.  We now learn Tanakh and Talmud (sometimes) “just like literature”, and Talmud (sometimes) just like geometry.

I am agnostic for the purposes of this post as to whether these changes overall improve the affectiveness of Jewish Studies.  I do want to suggest, however, that they have significantly diminished our only sustainable competitive academic advantage.  Restoring that advantage may therefore be an economic and sociological necessity even if in a perfect world, i.e one in which Jewish day schools had no external competitors, we might not put cognitive achievement quite so high on our list of goals.  

  

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Is There a Modern Orthodox Way to Decide Halakhah?

by Rabbi Aryeh Klapper

Any viable Orthodox ideology must at some point find expression through Halakhah.  But it would be unwise to create a hermetically sealed off Modern Orthodox Halakhic space.  When your community no longer communicates with other Halakhic communities, you have sectarianism rather than healthy diversity.  So while some aspects of Halachic decision-making are properly distinctive to Modern Orthodoxy, this doesn’t mean that every aspect of Halachic decision-making should be distinctive to Modern Orthodoxy.   

I see the primary Halakhic conversation partner of Modern Orthodoxy being to its right, rather than to its left, meaning that I’m more interested in the distinction from what we’ll “Charedi Halakhic decision-making” than from what we’ll call “Conservative Halakhic decision-making”.  But since in conversations with the right we are constantly asked to explain how we’re different than the left, there’s always a need to distinguish ourselves at both ends.

Here’s how Wikipedia formulates these differences:

Charedi Orthodoxy, Modern Orthodoxy, Conservative Judaism.

Orthodox Judaism has a range of opinions on the circumstances and extent to which change is permissible.

Chareidi Jews generally hold that even minhagim, customs, must be retained, and that existing precedents cannot be reconsidered.

Modern Orthodox authorities are generally more inclined to permit limited changes in customs and some reconsideration of precedents.

Conservative Judaism holds that its rabbinical body’s powers are not limited to reconsidering precedents based on earlier sources, but that the Committee on Jewish Laws and Standards is empowered to override Biblical and Tannaitic prohibitions by takanah when perceived to be inconsistent with modern requirements and our views of ethics.

The Wikipedian distinction between Chareidi and Modern Orthodoxy makes everything a matter of degree, which is unsatisfying.  Furthermore, I think it’s not very true.  Let me explain why via a joke:

There are two complaints that people always make about the way Halakhah (not Modern Orthodox Halakhah) exists in the world today.

The first is that it’s absolutely frozen, and nobody’s willing to introduce any changes. Even minhagim, customs, must be retained. Existing precedents cannot be reconsidered.

The second thing we can’t stand are all the new chumrot. Where do all these stringencies come from?

But you realize, of course, that these complaints contradict one another!  You can’t be upset both about the freezing of Halakhah and about all the new chumrot, because all the new chumrot are changes.  Both in reality and perception, the Charedi community is not unchanging; rather, the Charedi community makes many changes, and I don’t think that we want to characterize the unique Modern Orthodox approach to Halakhah as “we’re willing to make a few more changes, as long as they’re l’kula (towards leniency), but we’re not willing to consider anything that creates a stringency.” That doesn’t seem to me to be a viable, self-respecting approach.   And if Chareidi Halakhah has changed dramatically, then change per se cannot be the basis of a uniquely Modern Orthodox approach.

Furthermore, the whole notion of a Halakhah which is an inflexible continuation of the past is a fiction. There are two simple ways of demonstrating that.

1) The Halakhah which is a direct continuation of the past regarding electricity. It can’t be! There wasn’t any such Halakhah.

2)  Customs – how many of the people supposedly following “inflexible customs” are following the customs their parents did?  Customs/minhagim are local and geographic, and relate to specific people and communities.  But geographic minhagim were already breaking down in the aftermath of World War I, and by the aftermath of World War II everyone had moved. Furthermore, many if not most currently observant American Jews grew up in homes that were not fully observant, and therefore are properly unwilling to treat their parents’ behavior as precedent.  Rather, these baalei teshuvah belong to constructed communities of practice that often adopt practices en masse that were previously limited to books or pietists, or combine practices in unprecedented ways.

Here is one more illustration. The Artscroll Talmud is often depicted as if it were a bastion of traditionalism.  Specifically, what purportedly made the Artscroll Talmud the bastion of traditionalism, as opposed to the Steinsaltz Talmud, is that Artscroll maintains the sacred tzurat hadaf (form of the page) of the Vilna Talmud, the classic traditional Yeshiva page of the Talmud.  Indeed, the new Koren edition of Steinsaltz reverts to the Vilna tzurat hadaf.

But ArtScroll in fact represents radical change.   The popularization of Talmud, to the point where people with no Yeshiva education, no access, no direct tradition from teachers – where, let’s say, a very bright 12-year-old girl can start learning Talmud on her own, and can become highly competent learning Talmud – that is a direct result of Artscroll. That could not have happened before, and it revolutionizes the community.

Furthermore, Artscroll doesn’t actually maintain the Vilna Shas.  It actually uses a very fine contemporary reprinting of the Talmud called “Oz v’Hadar” that graphically is very much like the Vilna Shas, but includes all sort of commentaries that were never there in the Vilna, and actually emends the Vilna text to correct obvious scribal errors. It’s a wonderful, beautiful modern update.  This makes it an excellent symbolic refutation of the notion that the distinction between Modern Orthodoxy and Charedi Judaism is one of change as opposed to non-change. It might be about different kinds of change, it might be about the way in which change is presented, but it’s not about change, per se.

We also should not limit the differences between Modern Orthodoxy and Conservative Judaism to extreme cases of takkanot.  (Takkanot are rabbinic decrees that explicitly make law, as opposed to interpreting law.)   First of all, it’s not clear that Modern Orthodoxy should be opposed in principle to contemporary takkanot.  Rav Yitchak Herzog, the first chief Rabbi of Israel, wrote a hypothetical Halachic constitution for the state of Israel, and it began with a list of the takkanot you would have to make about inheritance and testimony and minority rights and all sorts of similar things.  Modern Orthodox should follow the commonsense halakhic rule that one cannot legislate for communities that have not accepted one’s authority to do so,  But It is both untrue and unwise to say that Modern Orthodoxy should be opposed in principle to takkanot, let alone that we should define ourselves on the basis of that opposition.

More broadly, I don’t want willingness to overrule precedent to be the primary axis that differentiates us from Conservative Judaism.  Explicit change is always radical and rare, and the heart of halakhah is how it continues and grows naturally.  We should be able to define ourselves in ways that relate to ordinary halakhic process, and not just to extreme cases where some people feel that halakhah is in crisis and must be changed.  Ideally, in the extreme cases you’re just continuing a standard process, as opposed to abrogating your normal procedures and using emergency methods.  My sense is that emergency methods rarely work.

Another possible approach is to define a halachic process by who gets quoted how often.  So you might say that what defines Modern Orthodox halakhah is that it quotes the Rav a lot, and to not be Modern Orthodox is to never quote the Rav, and there’s an in-between status, like the Artscroll chumash, which involves quoting the Rav once, and for something completely conventional. I don’t know of psak emerging from the Chareidi community that makes any reference to the Rav’s halachic positions (which largely survived only through oral transmission, although a variety of posthumous compilations have appeared.  My sense is that these works are read exclusively in the Modern Orthodox community).

On the converse side, perhaps the primary distinction between Modern Orthodox and Conservative halakhah is whether once cites the positions of past Conservative halakhists as precedent.  There are occasional citations of Professor Shaul Lieberman, but on the whole, it’s fair to say that a responsum citing a position of the Committee of Jewish Law and Standards as meaningful precedent would per se be excluded from Orthodoxy.

But this doesn’t seem to me a sufficient or desirable description, even though it is often accurate. When you have a clear vision, and you’re identified with something, over time you tend to become much more attached to the accidental positions of the poskim who support that vision. You develop a tradition which favors the poskim who believe x or work in the following way, and it happens that all those poskim for some entirely incidental reason take one side of a technical dispute regarding Shabbat – perhaps they believe that you can’t brush your teeth with toothpaste on Shabbat.  So you stop using toothpaste on Shabbat.  

That’s how I understand Beit Hillel and Beit Shammai.   There are many expansive explanations that account for every detail of every disputes between Beit Hillel and Beit Shammai, because how else to explain why all the people in Beit Hillel always agree, and all the people in Beit Shammai always agree? I suggest there was at some point an ideological dispute which we can’t recover, and over time they started quoting only members of their own school.  Positions gradually hardened on accidental issues; Beit Hillel and Beit Shammai started arguing about toothpaste, which had nothing whatsoever to do with their ideologies.

I don’t want to define Modern Orthodoxy as a post-ideological community, which no longer has ideas, but just follows precedent.  So there must be a better and deeper defining feature of our halakhah than who we quote.

Another possible approach is result-based.  Only a posek within Modern Orthodoxy would reach conclusions TYPE A, and only a posek within the Charedi or Conservative community would reach conclusion TYPE B, and/or no posek who reaches conclusion TYPE X is Modern Orthodox, and no posek who reaches conclusion TYPE Y is Charedi or Conservative.  For example, perhaps Modern Orthodox psak is consistently more liberal than Chareidi psak about issues such as what amount of their hair married women must cover, and on the other hand, in contrast to Conservative psak, a Modern Orthodox teshuvah works on the presumption that all forms of homosexual contact are forbidden.

This approach also fails to satisfy me.  Leaving aside the question of whether there are enough specific grounds of this sort to generate a useful definition, it describes the past but doesn’t provide guidance for the future. Modern Orthodoxy psak is anything which accepts these past outcomes, and Chareidi or Conservative psak is one which accepts those past outcomes.  Without underlying ideas, this leads nowhere.

What underlying ideas might distinguish Modern Orthodox psak?

Many people think that Modern Orthodox psak should be more inclined to be “science-friendly”.  But I think that Modern Orthodox psak should be more skeptical than Chareidi psak of whatever the “official” scientific consensus is right now.  

Why?  Charedi psak generally (Rav Shlomo Zalman Auerbach zt”l of course was a shining exception) approaches science as a foreign body of knowledge which must be accepted when it impinges on halakhah. Scientists get to determine what the truths of science are.  Science may be rejected if specific Jewish traditions seem inconsistent with those truths (which occurs much more often in the realm of theology than in the realm of halakhah), but otherwise, experts from the world of religion should not presume to evaluate science.  

Modern Orthodox psak should not accept this approach.  Rather, our poskim should relate to the physical sciences as part and parcel of the knowledge they need to decide halakhah, and to achieve love and fear of G-d.  They should either be at home in both worlds, or preferably believe that there is only one intellectual world.  As a result, they will be less likely to take scientific claims on faith, and more inclined to do their own research.  (This will also make them less susceptible to relying on a single, perhaps mistakenly, trusted scientist’s reports, an issue which has dogged even great poskim.)

Another possible underlying framework is attitude towards manuscript, historical, or archeological evidence.  One might reasonably expect Modern Orthodoxy to be much open than Charedism to reconstructing texts, or to understanding legal texts in historical context, or to archeological evidence.  

Here the personality of Rabbi Soloveitchik was a confounding factor.  At least in his ideological statements about Halakhah (possibly as opposed to in his actual psak), the Rav strongly rejected such methods and evidence, because they suggested that halakhah was historically contingent.  A number of poskim in the Modern Orthodox community have begun changing that, including Rav Nachum Rabinovitch, Rav Yehudah Herzl Henkin, and in principle Rav Herschel Schachter.  But certainly that’s not how poskim are trained in YU.

Rather, because of the legacy of the Rav, Modern Orthodox halakhists in the late 20th century were Briskers, which is to say that they adopted a conceptual model of Halakhah which was otherwise associated with a fairly extreme form of Lithuanian Chareidi Judaism.   This conceptual method had no necessary connection to Modern Orthodoxy; it was a historical accident generated by the Rav’s intellectual charisma.   So methodology of learning is not currently a useful definition or description of Modern Orthodox halakhah.

This raises a critical issue.  Are we trying to describe what Modern Orthodox psak is, or rather to prescribe what Modern Orthodox psak should be?

A descriptive definition is problematic because there is no clear picture of what Modern Orthodoxy is.  For example: Sociological Modern Orthodoxy can be defined by its lesser and weaker commitment to halakhah, particularly on issues of sexuality, whereas ideological Modern Orthodoxy may be defined by visions of women’s rights, treatment of non-Jews, and similar issues.     

Meanwhile, who are the Modern Orthodox poskim in America?  Descriptively, I think the obvious candidateds are YU roshei yeshiva such as my teacher Rav Mordechai Willig, Rav Herschel Schachter and Rav Tzvi Sobolovsky.  They cannot be considered Chareidi.  First of all, they quote the Rav all the time! And on many other issues their sensibilities are clearly not Chareidi: they presume that their students will pursue degrees, for instance.  Yet, I would be very hesitant to view them as methodological models.

On the other hand, choosing Rabbi Daniel Sperber or Rabbi Mendel Shapiro as models seems to be disingenuous. People know only the teshuvot that implement changes or allow practices they very much want permitted; no one knows what they think about using preset dishwashers on Shabbat or other less fraught issues.  One cannot extrapolate a method from a small set of extraordinary cases.

Here is another example of the fine boundary between prescriptive and descriptive, from my own work:

Let me emphasize again in closing that the halakhic arguments above show that torture can be forbidden halakhically, not that it must be. Technical counterclaims can easily be made; for example, one might suggest that the blanket prohibition I describe could only be rabbinic, and that there is no capacity to legislate rabbinically in our day. Halakhic decisors and halakhic communities must take responsibility for the way Torah responds to moral challenges. I describe halakhah as I believe it ought to be, and as it can be if we acknowledge that ethical principles have a critical role to play in both physical war and in milhamtah shel Torah.

This is a clear statement of prescriptive Modern Orthodox halakhah. which believes that ethical principles have a critical role to play in both the physical world and milchamtah shel Torah. What’s interesting about it for our purposes is that I wrote it in response to an article by Rabbi Michael Broyde, who by that time was unquestionably a substantively and sociologically important Modern Orthodox posek.   For several years thereafter, the admissions interview for Yeshivat Chovevei Torah required applicants to read our two articles and explain which of us appealed to them methodologically. So I identified as a Modern Orthodox posek, and everyone identified Rabbi Broyde as a Modern Orthodox posek, and yet it seems on critical methodological issues we differed quite dramatically. Similarly, Rabbi Chaim Jachter is certainly an important Modern Orthodox posek. whom I bring in each year to speak to the Summer Beit Midrash, and yet we disagree on some central methodological issues.

It may be that the attempt to define a whole set of unifying characteristics and expect everyone to agree with all of them is excessive. Possibly we should should instead identify a cluster of methods and attitudes, and say that to be Modern Orthodox, psak must adopt some but not all of them.

But I think that at some level the issue will boil down to the values that are implemented in halakhic decisionmaking  This is true even though some Modern Orthodox poskim have denied that values legitimately play a role in psak.  At the same time, we cannot say that poskim must always confirm the values of their communities.  Halakhah has no dignity if it cannot critique as well as support, and poskim must be allowed to lead and even be countercultural.

What values must play major roles in a body of halakhic work for it to be Modern Orthodox?  We can probably find consensus on religious Zionism, the right of women to full religious experience, and the obligation to treat all human beings Jewish or non-Jewish as tzalmei Elokim as values that define halakhic outcomes as Modern Orthodox.

But it isn’t sufficient to define values that are reflected in outcomes of the halakhic process.  It is at least as important for the nature of the process to reflect Modern Orthodox commitments.  I contend that the fundamental value that should distinguish Modern Orthodox halakhah process is autonomy.

Autonomy means the ability to live by rules of one’s own choice, and ideally of one’s own devising.   It is often framed as a right.  But in the context of halakhah, rights always come linked to responsibilities.

We live in a post-Nuremburg culture, in which the excuse “I was just following orders” carries the worst possible connotations.  Modern Orthodox Jews can’t want people to excuse or justify immoral actions on the ground that they were obeying the command of a religious authority.  

Nonetheless, there are several obvious objections to incorporating the value of autonomy into halakhic process.

1)  Rav Aharon Lichtenstein said that “The essence of Judaism is the metzaveh/metzuveh (commander/commanded) relationship.  Even if one does not go so far as “essence”, there is no denying the centrality of “tzivui” which seems antonymic to autonomy.

2) Halakhah is (partially) a system of law, and law by definition requires authority.  Legal authority is also socially necessary, because the alternative is anarchy, and in anarchy the weak always suffer.   

3)  If having a better Torah education doesn’t privilege you in the values discourse of Judaism, what’s the point of learning Torah?

Each of these objections is overdrawn.  Autonomy can be balanced with authority; it’s not a zero-sum game.

A Modern Orthodox halachic process will not presume that the person with the highest level of Torah scholarship automatically gets all values-decisions correct.   Psak Halakhah is not like playing Stratego.  Moreover, it will recognize that elite Talmudists and halakhic scholars, even those with earned reputations for righteousness, are susceptible to moral error.  But it will endorse significant deference to such scholars, and mandate accountability – not unquestioning submission, but accountability – to one’s peers and superiors in Torah knowledge.

At the same time, Torah scholars who value autonomy will seek to avoid imposing their authority on others, and within the limits of halakhah will try to leave maximal space for people to live by their own conceptions of the right, the good, and the holy.  

This vision emerges from the dispute between Moshe and Yehoshua about Eldad and Meidad.   Should the presence of multiple prophets be seen as a threat to central authority, or rather “וּמִי יִתֵּן כָּל-עַם ה, נְבִיאִים”, “May it be that all the nation of G-d are prophets”?  Modern Orthodoxy adopts Mosheh’s position, and ideally wants every Jew to have reliable independent religious intuition.  But we recognize the fallibility of even the most educated intuition, and the danger of overestimating our education.  

The goal of empowering people to make autonomous decisions obligates us to understand what constitutes a sufficient education on what kind of halakhic issues.  Even the most autonomy-affirming halakhist must sometimes say: “You raised this question, let’s look at the sources together and read the following articles,  But – after all that, this is an issue that requires trained intuition and experience. and therefore ultimately I think you should formally ask a shaylah”.  It will take a lot of work to figure out the boundaries of autonomy, and the nature and boundaries of authority, particularly as we have unprecedented forms of knowledgeability.  We have laypeople who never studied formally but know Shas by heart because they’ve been to daf yomi shiur and read through the Artscroll Talmud, and people with good web-searching skills can know more than most of their rabbis on any subject within 10 minutes, because they read 3 articles which clearly explain in English what all the sources say.

One possible approach would be to separate the jobs of moral and halakhic analysis.  When technical and authority grounds lead to halakhic stalemate, but one side is morally preferable, non-poskim can make their own decision on other grounds, such as morality.  At the extreme version of this model, any time you have a dispute amongst poskim which makes it legitimate to adopt either position, private individuals can choose on moral grounds.

The problem with this model is that it reduces halakhah to expert knowledge, and sees Torah knowledge as conferring no authority in nontechnical discourse.  In a world where anyone with internet skills can find a formal halakhic argument for almost any practice, this would turn halakhic discourse and Torah knowledge into trivialities.  

I contend that halakhic Jews who see autonomy as conferring responsibility will reject this model because they seek accountability to Torah.  Seeking accountability means deference without total submission, and a bias toward learning more and toward becoming more and more able to make more and more decisions, without ever desiring to achieve a state in which there are no heteronomous constraints on one’s will or intuition.  It means that we seek out teachers and poskim with whom we share our deepest Torah convictions but who are willing to say things to us that we really don’t want to hear.

In short: Modern Orthodoxy halakhic process should be distinguished by the moral responsibility assigned to the laity. The challenge is – can we build a morally responsible laity which nonetheless genuinely accepts halachic authority? I like to think we can.

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Intro to Halakhah

by Rabbi Aryeh Klapper

Hello Rabbi Klapper,

I am currently learning with some beginners to Judaism and people interested in conversion, and I want to help them conceptualize the idea and process of traditional Halakha. I feel like very often ‘beginners’ classes tell people what certain halakhot are (i.e., we don’t do this on Shabbat) without giving them the tools, historical context and skills to be able to understand why something is part of halakha and how much legal weight it holds (from understanding biblical vs. rabbinic origins, to the evolution of the oral law, to understanding the ‘weight’ of post-talmudic halakhic writings, thinking about machloket in halakha, etc).

In other words – do you know of a good article or work that helps present a sophisticated overview of halakha that’s appropriate to help teach beginners? I’m especially looking for a traditional approach since my learners will be operating within Orthodox communities.

Thanks!

Yana Tzviyah

 

Dear Yana:  

I have many times felt the lack of an adequate article for these purposes.  Your letter inspired me to make the following attempt at filling that gap.

INTRODUCTION

Halakhah is a spiritual language of the Jewish people.  It is both a set of rules-for-action and a mode of thought.  It tells Jews how to behave in situations that have already been thought through, and how to make decisions in new situations.

A. ABSTRACT CATEGORIES OF HALAKHAH

All of Halakhah is under the authority of the Torah.  Within that basic framework, there are many different levels and sources.  The two most important categories are deoraita and derabbanan.  Other significant categories include halakhah l’Mosheh miSinai and minhag.

Deoraita (literally: “of the Torah”) laws are derived by Biblical interpretation.  Some laws are explicit in the text, such as the prohibition against cursing the deaf.  But even seemingly explicit statements become law only via the decisions of interpreters.  For example, halakhah takes the Biblical prohibition “Do not place a stumbling block before the blind” metaphorically, as a prohibition against giving self-serving advice or enticing others into sin.  (All authorities agree that it is forbidden to place a physical stumbling block in front of a person who can’t see.  But there is a possibility that is it not forbidden by this particular verse!)

Derabbanan (literally: of the rabbis) laws are legislated by rabbis.  It is important to recognize that the assignment of a law to one category or the other is itself a decision made by rabbis.

Derabbanan laws divide into the categories gezeirot and takkanot.  

Gezeirot are laws that are framed as direct extensions of deoraita laws, either because the cases are similar or to avoid slippery slopes.     

Takkanot are laws that inculcate Torah values in society but are not necessarily connected to any specific deoraita law.  For example, the phrase “tikkun olam”, which you may have heard in its modern usage (making the world a better place), enters Halakhah as a justification for a set of takkanot intended to encourage community and protect wives from unscrupulous husbands.

When deoraita and derabbanan obligations conflict, one generally (but not always!) follows the deoraita.  When one is in doubt about a deoraita obligation, one must act stringently; when in doubt about a derabbanan obligation, one may act leniently. “Doubt”, “stringent” and “lenient” are themselves halakhic terms of art.

Halakhah l’Mosheh miSinai (literally: law given to Moses at Sinai) is a term used either to describe laws that G-d told Moses about at Sinai but nonetheless – for reasons unknown to human beings – told him not to write in the Torah, or else laws that have been part of the halakhic corpus for all of Jewish memory but no one knows when and where they entered.  An example of the first category is that tefillin must be black.

Maimonides uses the term kabbalah l’Mosheh miSinai to refer to laws derived by a Biblical interpretation that is and always has been universally accepted by Jews.

Minhag (literally: what is practiced) refers to local or family/ancestral custom.  The weight given to such customs varies greatly in different times and places, and depends on many factors.  The weight given to any particular custom depends on many factors, not least whether halakhic authorities see it as constructive.

In our day, localities rarely have defined customs, and people often come from a quite varied set of ancestors.  This attenuation of shared experience is still being worked out in many areas of halakhah.  

You may see people using siddurim with different texts in the same synagogue, and members of a single community may have different practices on basic issues such as how to check vegetables for bugs and how to prepare tea on Shabbat.  It is important to clarify when an issue is purely one of custom, when different “customs” actually reflect different underlying legal positions, and when a “custom” may result from unjustified halakhic laxity.

Halakhah in all these areas generally functions on the assumption that precedent is binding.  However, as circumstances change, there is always a valid question as to how precedents apply to new circumstances.  For example, should the rules about kashering metals apply to modern alloys with unprecedented physical properties?  

There is also important and valid conversation about how halakhah should respond to historical events or modern sensibilities.  For example, should we change the liturgy for 9t Av in light of the establishment of Israel and the liberation of the Temple Mount?

B. SOURCES OF HALAKHAH

Deoraita law is derived by interpretation of the Pentateuch.  Interpretation of the other books of Tanakh can yield only a special category of derabannan called divrei kabbalah (literally “words of tradition”; the term kabbalah here has no mystical subtext).

For almost all practical purposes, all halakhically relevant Biblical interpretation can be found in the Babylonian Talmud (henceforth Bavli).  Post-Talmudic halakhists will rarely if ever derive law directly from the Biblical text, but rather will work with a Talmudic interpretation.  Occasionally they will cite interpretations from other works that preceded the completed Babylonian Talmud (anywhere between 500 and 900 CE) such as the Jerusalem Talmud or the various compilations of Biblical legal interpretations knows as midrashei halakhah.

Similarly, almost all relevant legislation can be found in the Bavli.  Post-Talmudic rabbis almost never seek to legislate beyond the confines of their own community.  Some rabbis had expansive understandings of their own community, however.  For example, Rabbeinu Gershom of Mainz banned polygamy, opening other people’s mail, and divorcing women against their will for all those who considered themselves Ashkenazim.  The decree against polygamy was not universally accepted as binding by all Jews until the State of Israel enforced it on a forward-looking basis on the Yemenite Jewish community when they immigrated.

The key source of contemporary halakhah is therefore the Bavli.

The Bavli is organized around the Mishnah, a summary of the Oral Law composed by Rabbi Yehudah the Nasi around 220 CE.  The Mishnah is somewhere between a code and a textbook, and contained just about all legal topics but not all legal texts.   It rarely cites the Biblical source for even deoraita laws.  It records many disagreements, including the names of the relevant rabbis, but also many anonymous positions that may or not reflect consensus or conclusion.

The Bavli cites sources for the Mishnah, undoes the Mishnah’s summary by citing parallel and conflicting texts and treating them as equally authoritative, and seeks to formulate the boundaries and reasoning of the positions in the Mishnah.  The Bavli is in dialogic form, framed by an anonymous narrator (according to Maimonides and much of the subsequent tradition, the overall editors were the 5th century Rav Ashi and the 6th century Ravina), but cites the comments and positions of Babylonian and Palestinian Rabbis from the post-Mishnaic era through the fifth century.  Only some of its discussions end in formal halakhic conclusions, and those conclusions often vary in manuscript, and therefore may reflect rather than generate practice.  Nonetheless, a complex set of rules has evolved as to how to derive halakhah from the Bavli.

In the millennium-plus since the Bavli’s completion, halakhah has developed via three different types of literature.

The first is direct interpretation of the Talmud, in works often called peirushim (commentaries) or chiddushim (novellae).  The most famous peirush is that of Rabbi Shlomo Yitzchaki, known as Rashi.  Perhaps the best-known chiddushim are those of Nachmanides, Rabbi Mosheh ben Nachman.  A famous contemporary peirush is that of Rabbi Adin Steinsaltz; famous contemporary chiddushim are those of Rabbi Yisroel Meir Karelitz, known as Chazon Ish.  However, contemporary halakhic scholars rarely offer interpretations that cannot be found, at least implicitly, in medieval predecessors.

The second is through essays that address specific cases or topics.  These are known as sh’eilot u’ teshuvot, or responsa.  The most influential responsa produced in America thus far are those of Rabbi Moshe Feinstein, in volumes known as Igrot Mosheh.

The third is through codes that synthesize the practical outcomes of the commentaries, novellae, and responsa.  The most comprehensive code remains Maimonides’ Mishneh Torah, which uniquely includes the laws that will be practiced only when the Temple is rebuilt, and laws that can be practiced only in Israel or with regard to Israeli produce.  The most influential code, however, is the 16th century Shulchan Arukh, which in current usage refers to the original work of that title by Rabbi Yosef Caro together with the glosses added by Rabbi Moshe Isserles.  That work contains only laws that can be practiced outside Israel.

One reason for the Shulchan Arukh’s enduring influence is that Rabbi Caro was a Sefardi, whereas Rabbi Isserles was Ashkenazi.  The combined book therefore brought together the two mainstreams of halakhah and became a universal basis for conversation.

The Shulchan Arukh generated its own set of commentaries.  The most influential in popular Ashkenazic practice today is the early 20th century Mishnah Berurah, edited by the saintly Rabbi Yisroel Meir Kagan of Radin, Poland.  It deals only with ritual.  The enormously influential 20th century Sefardic giant Rabbi Ovadiah Yosef treated Rabbi Caro’s rulings as completely authoritative.  Summary presentations of his positions are still popular.

C. IS THERE ONE HALAKHAH, OR ARE THERE MANY HALAKHOT?

Several times we’ve already referred to differences in the halakhah followed by contemporary Sefardim and Ashkenazim.  Those categories have a complex and illustrious history, and unpacking it will help us understand several broader issues about the nature and process of halakhah.

Sometime before the 10th century, Jews spread out across much or all of Europe.  Whether because of different origins, or because of their new contexts, many communities developed distinct halakhic traditions.  Each of these communities followed both the consensus and the idiosyncratic rulings of their past and present great halakhists.

The influence of particular traditions waxed and waned, in response to intellectual, economic, and political circumstances.  By the time of the Spanish Expulsion in 1492, the two dominant European cultures were those of Spain and Portugal on the one hand, and of France and Germany on the other.

The Jews of Sefarad, unlike those of most previous European expulsions, did not assimilate into the halakhic cultures of their exile.  They set up independent communities wherever they went, even where there was an established Ashkenazic culture.  This seems like a violation of the deoraita prohibition “lo titgodedu”, which bans halakhic factionalism, but for various reasons, the Sefardim were convinced that it did not apply to their situation.  Perhaps they thought of themselves as a dominant culture, and all others as outliers.

For perhaps the first time, there were now two different halakhic cultures in the same location.  The emergence of the Shulkhan Arukh as a composite work embodied and legitimized that phenomenon.  Over time, both Ashkenaz and Sefarad have repeatedly fractured and recombined, but until the emergence of the modern State of Israel, there was no sense that they should recombine with each other, and such efforts in the State have failed almost completely.

The modern era saw another new phenomenon – denominational splits, and then ideological splits within denominations.  In North American Orthodoxy today, Modern Orthodox, Yeshivishe, and Chassidic groups each see themselves as somewhat self-sufficient halakhic cultures, although they join in rejecting Conservative Judaism’s version of halakhah.  In Israel, Religious Zionists play somewhat the same role as Modern Orthodoxy in America, although the communities’ ideologies are not quite parallel.

Denominational/ideological splits differ from geographic splits in that they foster much greater personnal religious mobility.  The ubiquity of multiple halakhic cultures today, coupled with the general modern tendency to value autonomy and individualism, raises the question of whether people should be bound to adopt a halakhic culture in its entirety, rather than treating themselves from a smorgasbord of legitimate religious options.  This question is especially pertinent for converts and baalei teshuvah, who cannot be told to continue the traditions of their parents.

Another axis which at times seems to create multiple halakhot is the lekhatchilah/bediavad axis,

Lekahtchilah (literally “what one should do from the beginning”) is the pristine halakhah, the way one should behave in the absence of external pressures.

Bediavad (literally “once it has already been done; often pronounced “bedieved”) is the baseline halakhah, the minimum one has to do to avoid having to do it over, or to avoid negative consequences.

For example, one should lekhatchilah hear the Scroll of Esther on Purim in the presence of a minyan. However, one who heard it privately has fulfilled their obligation and need not hear it again, even if a minyan becomes available.  Similarly, many laws of kashrut set up lekhatchilah standards for separating milk and meat whose violation does not render the food or the utensils nonkosher.

What makes this confusing is that

  1. External economic or moral pressures (called sh’at had’chak) can enable and even compel one to choose the bediavad option.  For example, one should eat food that is kosher only to bediavad standards if the alternative is humiliating a well-intentioned host.  Another example: In otherwise identical situations, a wealthy family may be told that they cannot eat the product of a “kashrut disaster” in their kitchen, whereas a poor family may be told to go ahead and eat it.  
  2. Often the lekhatchilah and bediavad options track the sides of an underlying dispute, or reflect attempts to accommodate as many sides as possible of an underlying dispute
  3. Sometimes a bediavad choice is sufficient post facto only if one did not consider and reject the lekhatchilah option.

Halakhah actually has many other levels on this axis, such as mitzvah min hamuvchar (an elite fulfillment of a mitzvah), and sh’at had’chak gadol (great necessity).

D. HOW HALAKHIC DECISIONS ARE AND SHOULD BE MADE

Some of Halakhah is settled law in all traditions.  Some of the rest is settled law within specific traditions.  Answering questions about usual cases that are covered by settled law is simply a matter of finding a sufficiently knowledgeable person, or a clear enough book.

On many issues, however, one can find controversy among authorities across traditions and through the ages, including the present day.  If a layperson knows this, how is he or she to make a decision?  Which is the right question — what to do, or whom to ask?

Other issues are new or newish.  On such issues, how should decisions be made, both by halakhists and by laypersons?  

There are no easy answers.  What is most important is to avoid both arrogance and excessive humility.  Arrogance leads to making decisions one is unqualified to make, and to being afraid to ask questions lest they expose one’s failings of knowledge or judgment.  Excessive humility leads to surrendering one’s moral judgment to others, or surrendering one’s practical judgment when no one else really knows the facts of the case.

Every Jew has the obligation to learn all the Torah they can, not least so they know when they don’t know enough, and need to ask.  But whom to ask is a crucial decision.

One reason that the broad halakhic tradition has always preserved so many voices is to give halakhists the discretion to find the answers that work in specific circumstances, or that resonate with specific souls.  Halakhah has a built-in set of objective factors that allow decisors to rule in accordance with usually non-normative positions in isolated cases, such as risk of great financial loss, or damage to human dignity.  These rules apply differently in deoraita and derabbanan issues, etc.

Even more importantly, the Torah contains so many distinct mitzvot because each soul properly has its own hierarchy and balance of values.  Every life lived with Torah integrity is a unique and valid interpretation of Torah.  Some may prioritize study, others action; some may focus more on their relationship with G-d, others on their relationships with people.  The job of a Jew is to live out his or her soul’s Torah to the fullest.

To that end, you should look to ask your questions to halakhists who genuinely understand you, and who have the depth and breadth of Torah and worldly knowledge to know as many of the relevant halakhic options as possible.  This requires forming a genuine relationship with the halakhist, and naturally creates a bias toward asking most questions to the same person.  But it is appropriate and reasonable to ask questions in specific areas to specialists, or to recognize that one resonates with the values of a halakhist in some areas but not in others.

It is also important to realize that one can ask questions to someone without being bound by their answer. So long as you are upfront about your intent, a halakhist will often be willing to talk through the options with you and give you the knowledge and parameters you need to make your own decision.  Some great halakhists will do this in a way that helps you internalize their process and make you more autonomous in the future.  Sometimes the halakhist will tell you frankly that you should not ask for a binding psak.

What is not okay is to ask multiple authorities until one gets the answer one wants, without caring whether it fits precedent or is intellectually or morally convincing.  This is generally an abuse of the system and the people, and lacks all integrity.  For this reason, competent halakhists will often refuse to tell you their opinion – especially if it differs from the conventional wisdom – unless and until you agree to be bound by their decision.

It is also important to understand that even great halakhists can make mistakes, especially about who you are and your specific circumstances, especially if your case is presented to them through a third party such as your synagogue rabbi.  If you receive a psak that causes you or someone else significant emotional, economic, or spiritual hardship, please ask another halakhist for help after disclosing that you received the previous psak.

E. THE SCOPE OF HALAKHAH

Halakhah covers the entire range of embodied human experience.  It has rules about sex and speech, business and bathrooms, ritual and recreation, and everything else you can imagine.  There is, however, disagreement about whether it ever directly regulates emotions, or only actions that usually express emotions.  Are Jews actually obligated to love their fellow as they love themselves, or only to act as if they do?   

One reason for Halakhah’s comprehensiveness is that it enables every decision in life to be meaningful.

Moreover, every halakhic decision one makes for oneself, or receives from another, should be a moment of growth.  Every decision should leave you better prepared to make future decisions, and under more pressure or when the stakes are greater.

But while halakhah applies to everything, halakhah should not be the entirety of one’s religious experience or study of Torah.  It is important to learn Tanakh and commentaries, Jewish philosophy, Talmudic narratives, or other authentic Torah genres – each person focusing on what resonates with their individual soul – and the principles and values derived from them should complement your halakhic reasoning and challenge your halakhic assumptions.

There are also decisions – often the biggest decisions in life – that only you can make, and for which halakhah prepares you without telling you what to do.  Halakhah does not tell you whom to marry, or when to become a conscientious objector in wartime, or which political party to support.  Halakhah often provides only vague guidelines as to how to choose when obligations bein adam lachaveiro (interpersonal) conflict with obligations bein adam lamakom (between man and G-d).  Making these decisions requires a broad Torah perspective.

F. CONCLUSION

This article has in a sense tried to teach you all about halakhah while you stand on one foot.  All the rest is up to you – go learn!

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