Response by Dov Weinstein
In his CMTL Devar Torah Does “It’s Never Been Done” Imply “It Should Never Be Done?, Rabbi Klapper asked:
Whether Modern Orthodoxy is a safe haven for halakhic radicalism, then, should depend on whether our community is halakhically sophisticated. I think that by historical standards it surely is. Do you agree?
I agree that our community is relatively halakhically sophisticated. But I don’t think that makes us a safe haven for halakhic radicalism. If anything, the opposite is true.
The basis for halakhic radicalism is the principle that “‘We have not seen’ is not a proof.” This principle, says Gemara Pesachim 51a, does not apply in places that “have little exposure to rabbis.”
Rabbi Klapper contends that it is “reasonable to take rabbinic exposure as a proxy for halakhic sophistication.”
I do not think this is correct.
The classic Rabbinic term for one who lacks halakhic sophistication is am ha’aretz. The Gemara in several places addresses the need to avoid publicizing certain halakhot in the presence of amei ha’aretz.
- On Chulin 15a Rav taught his students the lenient opinion of Rebbi Meir regarding deriving benefit from inadvertent chillul Shabbat. But when he spoke in public, Rav taught the stringent opinion of Rav Yehuda “because of the amei ha’aretz.”
- On Menachot 99b, Rebbi Yochanan says it is forbidden to tell an am ha’aretz that he can fulfil his obligation to learn Torah “day and night” merely by reciting Kriat Shema twice a day.
In these cases, the underlying assumption is that the am ha’aretz will blindly accept the words of the sages, and therefore it is better not to teach them halakhot which will be to their spiritual detriment.
But on Pesachim 51a, the Gemara does not say that those with “little exposure to rabbis” are amei ha’aretz. Rather it says they are like Kutim. And I think there is a significant difference between the two.
If Kuti was just a stand-in for am ha’aretz, the concern would be a too-literal acceptance of the words of the Rabbis. But here the problem is different. As Rabbeinu Chananel explains, the problem is the slippery slope:
Because they [Kutim and, by extension, those with little exposure to rabbis] will go astray – they will say ‘We used to treat that matter as forbidden, but it was permitted; so too this thing is permitted’, and they will end up permitting the truly forbidden.
What makes a Kuti a Kuti is not a lack of Torah knowledge. Rather, what makes a Kuti is that he does not accept the authority of Chazal to determine the meaning of the Torah. In other words, he makes up his own rules.
So, when the Gemara says that those with “little exposure to rabbis” are like Kutim, it does not mean that they are ignorant. It means than they, like Kutim, are overly prone to drawing their own incorrect conclusions from the evidence presented. Unlike Kutim, they accept the Talmud and Rabbinic tradition. But, like Kutim, they do not accept that contemporary Rabbinic authorities draw the bounds of which interpretations may be properly put into practice. And therefore the Gemara rules that such communities should not be exposed to halakhic radicalism, lest it lead them down the wrong path.
Widespread halakhic sophistication does not ameliorate this fear, it makes it worse. When apparently plausible halakhic arguments for anything are but a Google search away, the slippery slope becomes positively frictionless. And, lest we forget, the slope is not exclusively progressive – tax-evasion, wife-beating, and a total ban on math and science education are not without their sources either.
It is only the recognition that new approaches require both sophisticated halakhic argumentation and the validation of recognized authorities to become live options in practice that allows for appropriate innovation. This is why we keep halakhic radicalism away from Kutim and those who have little appreciation for authority.
The question of whether Modern Orthodoxy is a safe haven for halakhic radicalism, then, comes down to this: what sort of a community are we?
A community of traditional amei ha’arets accepts authority unreflectively, and their authorities are properly paternalistic in their public psak. There is no risk in halakhic radicalism, but there is no demand for it either.
In a Da’at Torah community, the halakhic sophistication of the people is coupled with a deep ideological deference to authority. Halakhic radicalism is therefore both appreciated and safely wielded. But it is necessarily limited to a small cadre of Gedolim. Any innovation by others is swiftly rejected and its adherents ostracized.
Our community is neither of these. In our community, relative halakhic sophistication is coupled with a reflexive rejection of heteronomous authority. This has lead us to see Halakha as a smorgasbord of equally legitimate opinions from which we select based exclusively on our unreflective moral or political intuitions. This makes us both particularly vulnerable to the dangers of halakhic radicalism, and particularly disinterested in the limitations of Halakhic conservatism.
Only through the development of serious Talmidei and Talmidot Chachamim from within ourselves, and concomitantly the development of serious respect for, and even deference to, their authority will we be able to benefit from the halakhic radicalism we so desire, without the negative consequences it entails for those unsuited to it.
Rabbi Klapper suggests that “hav[ing] little exposure to rabbis” means lacking halakhic sophistication. That would make our current community fundamentally a safe haven for halakhic radicalism, although there may be external reasons for caution.
I suggest that “hav[ing] little exposure to rabbis” means a lack of accepted Rabbinic authority. That would make our current community fundamentally ill-suited for halakhic radicalism, although there may be external reasons to endorse it nevertheless.
In practice, however, I suspect the differences between us are small. I tend to agree with Rabbi Klapper’s approach to halakhic and communal issues of the day. Not only are his arguments usually convincing, he is also a Rabbinic authority worth recognizing.
 Conversely, a community which has among it authoritative Talmidei Chakhamim can, and indeed should, be exposed to halakhic radicalism. The fear of the slippery slope does not apply because the people will see that, even though halakhically sophisticated arguments may be available to justify some never-before-seen practice further down the slope, the fact that the Talmidei Chakhamim among them reject it will put a stop to the slide.
 As Rabbi Klapper himself puts it in “Are Partnership Minyanim Orthodox?”: “One premise of mine should be clear – the existence of an intellectually plausible argument for a halakhic position does not ipso facto legitimate that position as an option for practice. … Rather, I believe that arguments generally confer legitimacy only in the company of authority.”
 Moral intuition is a legitimate element of psak, but it is not by itself sufficient to decide among intellectually plausible halakhic positions. Mistakenly thinking that it is sufficient renders serious talmud Torah both unnecessary and meaningless. After all, if you cast your net wide enough, there is almost always already a machloket haposkim on any topic of interest. Why then should Modern Orthodoxy bother invest the financial and human resources necessary to develop our own Talmidei Chacahmim? Add to this our tendency to be generous in our definition of “intellectually plausible” and halakha becomes a plaything in the hands of our desired outcomes. Which, to me at least, is an obviously bad result. Rabbi Klapper generously included my reflection on this topic in a post here.
 I granted at the onset that our community is halakhically sophisticated by historical standards. But this may require qualification. We are sophisticated in the sense that we have access to far more information than all but the greatest talmidei chachamim of previous generations. But this doesn’t necessarily mean we are wiser. As an example – above I quoted two Gemaras – one from Chulin and one from Menachot – regarding the proper approach to paskening for amei ha’aretz. This gives the impression that I am well-versed in Gemara, and am able to apply my wide-ranging learning to the issue at hand. But this impression is false. I found both Gemaras on the Hebrew Wikipedia page for הלכה ואין מורין כן subsection בפני עמי ארצות. For all I know, there are dozens of counter-examples out there, but nobody has edited the entry to include them yet. Does this qualify me as “halakhically sophisticated”? Not so clear.
 The fact that he actively solicits counter-opinions from his students is further indication of this.
Dov Weinstein (‘Never) Missed attending SBM ’07 to woo the sister of an SBM alum. They would soon thereafter wed. They now live in Jerusalem with their four children.
Response by Rabbi David Fried
In response to Rabbi Klapper’s original article:
I don’t think one can refer to the modern Orthodox community as a single community. Each rabbi has to decide for their own community whether they can handle halachic radicalism. What that gemara shows us as much as that there are certain communities that can’t handle halachic radicalism is that we don’t ban something from the whole world because there is some community somewhere that can’t handle it. We ban it only in that community. (I imagine one could plausibly argue that a world of instantaneous communication makes us all one community, but I don’t buy it.)
In response to Dov Weinstein:
I think he offers a highly plausible alternative read to the sugya, and I appreciate his recognition that the slippery slope is not merely in the progressive direction. However, with regard to the need for “gedolim” to endorse a radical shita, I would respond with Rabbi Klapper’s own words:
But this puts the cart before the horse. In much of contemporary Orthodoxy, the positions of gedolim (past and present) are in the hands of Procrustean censors who strive to ensure that nothing genuinely novel or idiosyncratic escapes, let alone anything “suspicious.” When such a position nonetheless escapes, the result is generally loss of gadol status rather than legitimization of the position.
In my mind, the reason why we can’t rely on shitot that would permit tax-evasion or wife-beating is not because the “gedolim” don’t endorse them, but because halacha needs to be in conversation with Agada. We have certain metahalakhic values that will render certain shitot untenable, but those values need to be defended rigorously within the agada of our tradition, they cannot merely be asserted by “gedolim.”
Rabbi David Fried (SBM 2010) teaches Judaics at the Hebrew High School of New England in West Hartford, CT, and is a musmakh of Yeshivat Chovevei Torah.