Halakhah: More than Just Exegesis
BY: Jonathan Ziring
One of the most important functions of talmud Torah is “la-asukei shema’teta alibba de-hilkheta,” to learn Torah with the goal of deriving practical halakhic conclusions. However, to be honest, throughout high school, yeshivah in Israel and my first year in YU, most of my learning was purely theoretical. Then, this summer I attended the Summer Beit Midrash directed by Rabbi Aryeh Klapper, where the goal was to study a halakhic topic in-depth and eventually write a legal responsum, or teshuvah, answering a simulated question that encompassed all the aspects of the topic. Furthermore, this year, back at YU, I have been studying Hilkhot Shabbat in Rabbi Willig’s shi’ur, where the clear focus is to come to practical conclusions. Thus, for the first time I have had the opportunity to think seriously about the nature of pesak (legal ruling), and it is with this background that I share some things I have noticed. While I had often thought of pesak in almost Platonic terms as a result of pure halakhic exegesis and the application of theoretical principles, my recent exposure to the halakhic process has convinced me of the numerous other factors involved and has made me rethink how pesak works.
The process of pesak is almost always couched in exegesis, as it should be. Every posek‘s goal is to take all the sources of our tradition and come to a ruling that reflects what he feels is the best interpretation of the sources. However, as Gerald J. Blidstein, professor of Jewish thought at Ben-Gurion University, aptly puts it, “Texts can be interpreted … [and] Scripture is never a match for ingenuity,” or, as Hazal strikingly seem to say, “Ein moshivin ba-Sanhedrin ella mi she-yodea le-taher sherets min ha-Torah” – we do not seat someone in the Sanhedrin unless he knows how to render pure a [dead] rodent based on the Torah. Almost no exegetical claim can be proven conclusively; a clever enough scholar can take a text and interpret it in contradictory ways, and nothing in the text can prove which way is correct.
To take an extreme example, the Gemara, commenting on Tamar’s willingness to be killed rather than defame Yehudah’s reputation and reveal that he had impregnated her, states that “a person should rather throw himself into the fiery furnace than embarrass his friend publicly.” Tosafot and other commentators take this statement at face value, though they struggle to explain why the sin of embarrassing someone is not counted among the traditionally accepted cardinal sins. Rivash, on the other hand, rules categorically that although there are many sins that Hazal compared to the three cardinal sins, they do not fall under the category of yehareg ve-al ya’avor (be killed rather than transgress). He exclaims that the notion that one should die before committing these sins “never entered anyone’s mind and no one ever thought [such an idea]! Rather, it is the way of Hazal to exaggerate the greatness of sins so people will take care not to stumble in them.” Thus, although some scholars simply accept the explicit passage in the Talmud that embarrassing people is a cardinal sin, others feel it self evident that the Gemara’s ruling is not to be taken seriously.
Of course, commentaries rarely diverge from the literal meaning so drastically as in this case, and as much as possible shy away from reading seemingly halakhic statements as mere exaggerations. Otherwise, if taken to the extreme, we could negate all of Torah by claiming that every command was meant rhetorically. As I have heard many times from Professor Moshe J. Bernstein, if one is not careful, instead of understanding the latter half of the Ten Commandments as imperatives, he could end up reading “Lo tirtsah, lo tin’af” as rhetorical questions: “Should you not kill?! Should you not commit adultery?!” However, it is clear that, given enough of a motivation, a true scholar can make almost any claim and support it exegetically.
To further complicate matters, if one has an expansive view of the concept of eilu ve-eilu divrei E-lohim Hayyim (these and those are the words of the Living God) and understands the Gemara when it says that both the opinion of those who permit and the opinion of those who forbid were given by God at Sinai to allow for multiple halakhic truths, then there can be numerous valid ways of reading a given set of sources. Thus, one is confronted with the question of the Gemara, “[If this is the case,] how can I learn Torah?,” or, more precisely, “How can I decide Halakhah?” Even if there are multiple correct understandings, clearly some reads are better than others, and some are altogether invalid. As Mori ve-Rabbi R. Aharon Lichtenstein has pointed out, while the possibility of multiple correct interpretations leaves open the potential to rule leniently bi-she’at ha-dehak (in a dire situation) or because of kevod ha-beriyyot (human dignity), if an opinion is clearly wrong or the posek himself does not consider it a viable possibility, he may not rely on it. However, if there are multiple answers to most questions, and exegesis cannot always determine which is correct, what factors enter the decision-making process and what parameters can be used to forge responsible pesak?
Concerning the question of what other factors enter the process of pesak, it is clear that a posek‘s conception that Halakhah has to allow a person to live a normal life often enters the halakhic process. Some Rishonim even quote the Yerushalmi as claiming that it must be that ed ehad ne’eman be-issurin, a single witness is believed with regards to ritual matters, because otherwise it would be impossible to eat at other people’s houses, as one could not trust the kashrut of the food that was prepared under the watch of only one individual., No exegetical claim is made whatsoever; it is simply based on the intuition that Halakhah must provide a mechanism to enable basic social interactions. R. Shelomoh Zalman Auerbach argues that one does not have to allow resha’im, wicked people, to manipulate the halakhic system. Therefore, a plaintiff is entitled to demand money even if the defendant threatens to blaspheme if brought to court, despite the fact that this would seem to violate the prohibition of “lifnei ivver lo titten mikhshol“
(placing an obstacle in front of a blind person) by causing him to sin. He even extends this argument to permit a person to receive medical help from a Jewish doctor who threatens to violate Shabbat gratuitously against the patient’s wishes in the course of treating him. Behind this ruling seems to be the assumption that Halakhah cannot allow resha’im to cripple the system, and those who follow Halakhah are entitled to lead a normal life.
Similarly, many famous Rishonim and Aharonim made halakhic decisions based on the premise that the Jewish people are fundamentally righteous, and therefore whatever they do must be correct, even if the only possible support is textually tenuous. Sometimes, these arguments are framed as a limmud zekhut (post facto justification), where the posek suggests not relying on the hetter (permitting ruling) if possible, but sometimes they become the basis for accepted pesak. The Ba’alei ha-Tosafot are known for using this notion of kehillah kedoshah (holy congregation) – the assumption that the Jewish people are fundamentally righteous, and that, even if they act in questionable ways, their practices can be justified – as a basis for reading texts in ways that ratify the status quo. The Arukh ha-Shulhan, which is more recent, is replete with arguments that are explicitly based on this principle. To take one striking example with regard to borer (the prohibition of selectively separating on Shabbat), the author writes that he presents his kullot (leniencies) in this area in order to defend the questionable practices of the women of Israel, who devote so much time to preparing for Shabbat, against the attacks of the author of the Mishnah Berurah, who accuses them of doing wrong.
Even those who are hesitant to stake halakhic opinions based on the minhag of the masses may be willing to do so based on the actions of one or many halakhic authorities. Maharik, for example, claims that in the case of ancient customs that were established by prominent scholars, one can apply the principle of Minhag oker Halakhah, custom uproots law. Sometimes, posekim are even willing to take moral considerations into account. As I have often heard from R. Lichtenstein, if he were in a situation in which a non-Jew was in fatal danger on Shabbat and there was no concern of eivah (enmity) on the part of the non-Jewish population toward the Jews – for instance, if he were isolated on an island where no one else would know whether or not he had saved the non-Jew – he would rely on the opinion of Me’iri and rescue him, as he would consider it a moral she’at ha-dehak.
However, if exegetical claims are insufficient and posekim rely on other, non-halakhic values in making their final decisions, what ensures that a pesak will responsibly reflect Halakhah? It seems to me that there are at least two criteria. One is that the posek be someone who understands the system in its totality. When this is the case, even if he cannot prove his argument exegetically, he can justifiably claim that his intuitions are in line with the Torah system. I have heard many times from R. Michael Rosensweig about the halakhic intuition that comes from knowledge of the entire Torah, and it is in order to ensure such intuition that Rambam requires that one be able to paskn in all areas of Torah in order to even be granted permission to paskn in a limited area. It is only with this scope and vision that one can truly understand how Halakhah works.
The second criterion can, I think, be observed in the codification of the rules of pesak in Shulhan Arukh. The halakhot concerning who can paskn, when he has the authority to do so, and what issues he can paskn on are all addressed in the same siman as Hilkhot Kevod Rabbo ve-Talmid Hakham, the laws of respect towards one’s rabbi and a Torah scholar. Many of those halakhot limit even those capable of issuing legal rulings from doing so in situations where exercising that authority would be disrespectful to their teachers. It seems that the reason for this limitation is obvious: even if one has the requisite erudition, he cannot paskn if he does not have respect for the system and its leaders, a prerequisite for being a responsible transmitter of Jewish tradition. This plays itself out in the prohibition against ruling on a halakhic issue in front of one’s teacher without his permission, as well as not referring to one’s teacher by his first name. From the writings of Rema and his placement of the prohibition against ruling while intoxicated in this siman, it seems that Halakhah also requires that one paskn with the utmost seriousness. It follows that these restrictions are relaxed if the posek is not issuing a ruling that requires his own input but is rather simply relying on earlier sources. The common denominator is that part of being allowed to paskn is recognizing the limits of one’s own abilities and the respect one must accord to the system and all that it entails.
However, I think there is one factor that makes the process of pesak more complicated today, and that is the vast body of resources available to us without exposure to human transmitters of the masorah (tradition). The Lehem Mishneh suggests that the prohibition against ruling in front of one’s teacher no longer applies because books are now our teachers. If this was true in the time of Lehem Mishneh in the 16th century, it is definitely true today in the age of the Bar-Ilan Responsa Project and the Internet. Nevertheless, even if books and online resources are technically considered our teachers, the fundamental values represented by those laws of kevod rabbo must be kept in mind; we must still respect the scholars who are transmitting the masorah, especially those who continue to teach us, whether or not they exactly fit the category of rabbi muvhak (primary teacher). When a posek approaches the halakhic process with this respect, his opinion can legitimately enter the canon of valid pesak, or divrei E-lohim Hayyim. Without this respect, however, his opinion, despite its legal brilliance, is fundamentally flawed, because deciding Halakhah is about much more than exegesis.
Jonathan Ziring is a senior at YC majoring in Philosophy and Jewish Studies and is a Staff Writer for Kol Hamevaser.
