103)THE POSITIVE ROLE OF SUBJECTIVITY WITHIN HALACHA:

INTRODUCTION:

It is a well established principle that Torah interpretation was handed over to the jurisdiction of human beings who would apply their minds in order to determine a halachic response for all future generations. 

It is similarly established that the Torah is ‘not in Heaven’ because its custodians are not the angels but rather humans of flesh and blood.

The question begs: With humans using their interpretative skills to determine halachic outcomes - to what extent are their deliberations influenced by their obvious and natural subjectivity.

It is the aim of this article to explore just how far the role of subjectivity can be extended with regard to determining halacha, and to observe how this process may sometimes have been abused.

HALACHIC ‘DEVELOPMENT’:

We tend to forget that many things which we take for granted as definitive halacha, were (and still are) part of an evolutionary process.

For example, originally electricity on Shabbat was treated more leniently than it is today. It was only over time that the prohibition of the use of electricity came to be regarded (although not unanimously) as falling under the category of ‘fire’.

Another example is the case of tourists visiting Israel over the festivals. For many years, visitors from the Diaspora kept two days of Yom Tov. However, nowadays due to the fact that more tourists are visiting Israel than before, this view is slowly beginning to be challenged by the popularity of a ruling of the Chacham Tzvi[1] that they need only keep one day. R. Herschel Schachter says; “In recent years this opinion of Chacham Tzvi has gained more popularity among the poskim (halachic decisors).”

So to the careful observer, halacha, far from being static, is often subjected to a process of evolutionary development.

HALACHIC EVOLUTION BASED ON APPROPRIATE SUBJECTIVITY:

This subtle development is often the result of a greater or lesser degree of subjectivity on the part of the halachic decision maker.

R. Eliezer Berkovits writes;

“Halacha is not subjective, but it has a subjective creative element to it....This is our share in the covenant...notwithstanding the risk involved in the subjective aspect of our participation.”[2]

 R. Yitzchok A. Breitowitz writes;

“...the Rabbi cannot answer...a question with his nose buried in the books, but must be sensitive to the individual characteristics of the questioner.” These characteristics will obviously differ from person to person and era to era.

R. Yitzchok Hutner...once told a disciple;

 ‘Do not rely on anything that I ever said to someone else. Each psak (ruling) is unique.’

R. Moshe Feinstein...writes[3] (in his introduction to his epic responsa work) that ‘each Rav must apply his own judgement and discretion in applying the responsa to the facts of his particular case...rather than blindly accepting his reading of them.’”[4]

In essence, the halachic process requires that the rabbi also responds to the questioner – not just the question. “

All the above shows how subjectivity plays, not just a de facto role in determining halacha, but also how critical it is in the first instance.

In other words, halacha is meant to be relatively pliable.

HALACHIC EVOLUTION BASED ON INFORMATION (OR LACK THEREOF):

Let me share two examples, separated by 800 years, of evolutionary development of halachic rulings that were predicated upon new knowledge that had previously not been available:

In 1964, the Surgeon General determined that smoking was dangerous to one’s health. 

This prompted R. Moshe Feinstein to write;

“The truth is that one should not smoke. However since there are very many who do smoke, including Gedolim, it is difficult to say that smoking is an absolute prohibition.”[5]

Years later, his son R. David Feinstein said that had his father been more aware of the medical dangers of smoking, he most certainly would have prohibited smoking outright (see here).

The second example concerns the question of whether or not it is respectful to live in an apartment that is directly above a synagogue. Many poskim ruled against this practice. However the Chida ruled leniently, permitting one to live above a synagogue based upon a ruling of Rambam. The Chida goes on to explain that those who ruled strictly had not seen the ruling of Rambam and had they seen it, they certainly would have reversed their decisions.[6]

Thus different halachic outcomes are reached depending upon the availability of relative information. In this sense, information can often drive a halachic ruling one way or the other – again emphasizing a degree of subjectivity (in terms of who has what information) inherent within the process.

INAPPROPRIATE SUBJECTIVITY?

Professor Marc Shapiro points out a number of fascinating cases where it seems as if subjectivity may have been taken too far:[7]

The Talmud records R. Papa’s statement that if one drinks wine instead of beer, he is considered as having wasted the wine (baal tashchit).[8] The Maharsha comments that R. Papa acted out of self interest because he traded in beer!

The Rashash takes issue with the Maharsha for accusing R. Papa of lying regarding a matter of halacha, for personal and selfish reasons.

There is another case where R. Yehudah haNasi declared thirteen fasts during a time of distress and wanted to introduce another one when the situation did not get any better. However, R. Ami said they should not overburden the community with the discomfort of yet another fast. R. Abba remarked that R. Ami only said what he did because he personally did not want to fast another day. Thus he too was acting out of selfish considerations.[9]

A third example is where R. Abbahu said in the name of R. Yochanan; “It is permitted for a man to teach Greek to his daughter, because such learning is an ornament to her.” Shimon bar Ba heard this and said; “It is (simply) because R. Abbahu wants to teach his daughter Greek, that he (selfishly and falsely) assigned the teaching to R. Yochanan.”[10]

Incidents like these must have been relatively common because the Ramoh writes; “Any scholar who says something out of self interest should not be listened to.”[11]

So we see that although a degree of subjectivity is inevitable within the halachic process, one has always to be cautious not to allow subjectivity to lean towards personal interest.

HOW ORDERLY IS THE HALACHIK PROCESS?

Nevertheless, the popular perception is that the halachic process is very logical, orderly, following clear and incontrovertible guidelines, and well controlled by careful unambiguous and unanimous oversight.

But as we have seen, a study of the actual historic halachic process reveals a very different story.

According to R. Moshe Sokol[12];

“...the innumerable changes in the Halacha – drastic modifications as well as moderate adjustments...are so varied – in subject matter, in geographic distribution, in historical period – that one is at a loss to delineate the precise parameters of halachic development...”[13]

Accordingly, the process of halachic development may actually be more random and organic than most people realize.

This apparent natural and multifaceted approach was already alluded to in the Talmud;

“G-d said: Do it (build the Sanctuary) in whichever way you are able - and it will be satisfactory.”[14]

So, as we mentioned in the introduction, the Torah was handed over to human beings to apply their minds as they saw fit and thereby determine halachic outcomes which would then become universal Jewish practices. And this was not an accident or a mistake - but rather part of the plan to keep halacha within the human domain.

ANALYSIS:

Thinking that this almost ‘haphazard’ process of halachic transmission is a terrible weakness, I discussed the matter with an observant psychologist friend, Kevin Furman, and he said it was anything but. He went on to explain that a society is strongest when allowed to develop freely.

He explained that “identity ‘is also formed’ by what we choose to reject. This is important as it allows particular thought objects to be revealed as a spectrum which has grades. This allows flexibility and relativity. E.g. Shabbat observance if seen as an ‘absolute truth’ would not allow saving a life.”

This means that what may appear as rivalry within a group (of people or even thought concepts), is healthy because it guarantees the group’s survival - and is even more beneficial than apparent cohesion of thought.

It’s like the old story about a Jew on a desert island who needs two shuls –  one to go to and one not to go to. The truth is that even the shul he won’t go to is just as important for the perpetuation of his faith as the one he does go to!

The openness and free flow of the halachic process is what gives it its strength and endurance.

This is why halacha is allowed to meander somewhat because it is FROM Heaven but not IN Heaven. 

And counter intuitively, it is precisely because subjectivity and individuality are tolerated and even encouraged within the halachic sphere, that the system has proved to be so effective.

..............................................................

GUEST POST

THE HALACHIK METHODOLOGY: 

By Rabbi Chaim Finkelstein.

Head of the Yeshiva L'Rabbanut and Institute for Halachik Research South Africa.

I was most excited when Rabbi Michal mentioned the subject of his next blog as being the flexibility of Halacha and its evolutionary process, not only due to the nature of the composition but also because it is something that I have dedicated my life to and founded two institutions on.

The essence of the blog is to introduce the role of subjectivity in the halachik making process and the scope of such latitude when faced with a set construct of rules and regulations, namely the Shulchan Aruch and its commentators. Contemporary writers on the genre, which include esteemed Rashei Yeshivos and Rabbonim, have clarified for the greater public the need and historical useage of subjectivity in dealing with novel and or scientific phenomena that require halachik attention. However what the writers and indeed the protagonists themselves have not clarified for themselves, let alone the public, is an aspect of the halachik decision making process that lies at the heart of "psak", of a final verdict, and it is this aspect which determines the place of human intervention in the halachik decision.

Even to the seasoned Rav the sea of Halacha can be a maelstrom of diverging opinions ad infinitum, compounded sometimes by the lack of a president from an earlier source that can guide one through these opinions. The obvious issue is how to choose an opinion or how to proceed when a novel situation, previously never dealt with, presents itself? The article quoted by Rabbi Michal from senior Rosh Yeshivas does not address this issue clearly, which may indicate that there is no clear cut guide. This would appear to be disturbing as the halachik mode is now called into question, lacking a proper method of conclusion drawing!

What is also bothering is the prevalent attitude amongst the halachik leaders in their ideology of paranoia against territory new and unchartered. What is new is best left untouched. In addition to the fact that not all new cases can realistically be left untouched, the evolution of Halacha, and indeed the oral Torah, is left stunted and atrophied, doomed to a fate similar to other dogmas stuck in time.

There is indeed a methodology in deciding which opinion emerges as the final ruling. There is also a methodology in dealing with new and uncharted territory. It is the same methodology employed by the earlier codifies, dating back to the Talmud, nay, even to Sinai. This method involves distilling principles from the halachik material studied. The way to extract the principles is involved, it involves a clear analysis of the provenance of the Halacha, viz. the sugya or Talmudic discussion which created the background and context of that Halacha. This includes asking questions, posing contradictions and being intellectually brutal in the pursuit of the underlying principle. And the coup de gras; formulating a chidush.

A chidush is a novel idea that the learner has read into the sugya which unlocks the depth and scope of the sugya. That idea can then be seen to run through the thought processes of the codifiers who followed the era of the Talmud. When the idea runs consistently a halachik principle has been successfully formed. And it is precisely this principle which determines the final ruling and whether the circumstances presented by the petitioner are worthy of the application of the principle.

This method of halachik exposition dates back to Biblical times, as the Gemara demonstrates in that halachik precepts which became obfuscated and forgotten after Moshe Rabbeinu's passing, which were restored and clarified by the expository vision of Osniel ben Knaz (Talmud Temurah 15b). Not through prophesy nor intuition, not even through combing a plethora of halachik opinions,but through "pilpul", analytical insights. And post Biblical times too, this style of analysis was the method of halachik exposition employed by the Talmud itself, as is stated that the purpose of group study is to arrive at principles (Talmud Brochos 6b).

Not to increase dissent and overly detailed case studies, but to simplify a course of study by reducing it to its basic rationale. And it didn't stop at the close of the Talmud, for we can clearly see this system of analysis in the responsa literature of the Rishonim and Achronim. Even in our times we have prime examples of the classical halachik analysis in the works of Rav Shlomo Zalman Auerbach Zt"l and Rav Moshe Feinstein Zt"l, who carefully dissected the opinions before them and drew their own conclusions. And this is the way of the future, for scholars to unabashedly question and plumb and innovate and test and apply. For opinion polls are not always an accurate alternative.

To illustrate our point let us present a contemporary halachik controversy; the need to wait after eating hard cheese before eating meat. The idea first appeared in the work entitled Issur veheter by Rabbeinu Yona (ch.40 #10) and was discussed by the Turei Zahav, one of the most significant commentaries on Shulchan Aruch ever written ( siman 89 #4 ) . The original sources discussed the sharp tasting cultured and matured cheeses of their time and the contemporary works debated whether our processed cheeses are also classified as "hard cheese" insofar as requiring a waiting period before eating meat. Here begins the controversy, for one opinion maintains that our processed cheese resembles the old style hard cheese, only that the maturation is accelerated by modern technology. While others opine that a slow maturation is key to creating the old style hard cheese. See responsa of Rabbi Evers שו״ת ושב ורפא סימן כו which includes a list of various cheeses and their maturation schedules.

The result; a debate with no borders, details with no end and a need to err on the side of caution by waiting after every cheese meal. Whereas if we were to probe the matter further and ask ourselves whether there is a need to wait after cheese at all since the Talmud only mentioned waiting after meat (Hullin 105a), and then further probe why hard cheese was ever comparable to meat, and then through understanding the principles of Talmudic preventative measures we arrive at a conclusion that the debate over contemporary cheese is over an unknown entity. Which gives us a different result; that our processed cheeses are at best a dubious rabbinic injunction (ספיקא דרבנן לקולא ) which is inclined to the side of permissibility. Without the extraneous facts and figures we arrive at a simple and workable maxim (although we could extend this issue further, more crucial factors to address lie beyond the scope of this article).

The above thesis gives us an idea of where human interpretation meets Divine origin in the halachik making process. The human intellect that has been fine honed by Talmudic studies now applies itself to Halacha and brings a degree of intellectual subjectivity into the interpretation of the halachik code, while remaining intellectually honest to keep the interpretation accurate and  undiluted. The checking process is achieved by sounding the ideas off other halachik thinkers with no agendas, what the Mishnah (Avos 6:1) calls "dibbuk chaveirim", intellectual discourse. In addition to the human checking process, the scholar must research proofs or precedents in earlier writings, which will guarantee the outcome to be unbiased and well founded.

Unfortunately the yeshiva and rabbinic communities have separated the "lamdan", the learner capable of abstruse conceptual reasoning, and the "posek" the halachik decison maker, in that the latter is more capable of sourcing numerous opinions in the pursuit of a final head count, rather than analysis of texts and reason. That is why the posek of the current generation cannot account for the final conclusions drawn. Instead the system should and must encourage the lamdan to graduate to become the posek, the one using analytical skills in determining rulings in Halacha. Another unfortunate feature is the yardstick by which we measure competence in Halacha, for we are inclined to venerate scholars with keen memories and vast book knowledge instead of scholars with refined analytical skills who can determine the appropriateness of a law and its application far better than the former. Although the last sentence is worthy of its own article, suffice to say that the wealth of Torah information available today and the search engines to access it, obviates the need for a human repository of such nature. 

I hope the above has provided more light than heat on a subject that touches me deeply and I am one dedicated to the restoration of the halachik lamdan, the healthy combination of well rounded knowledge and creative insight allowing for the continued evolvement of the oral Torah.

A fitting conclusion to this essay lies in an interpretation of a piece of Talmud proffered by Rabbi Shlomo Eidels in his work Chidushei Maharsha. The Talmud (Bavaria Metziya 59b) presents an epic tale of fierce rabbinic debate resulting in Rabbi Eliezer manipulating the forces of nature to dramatically prove his view, eventually receiving Divine confirmation by way of a Heavenly voice announcing to the rabbis that the Halacha is in accordance with Rabbi Eliezer. The dissenting rabbis proclaim that Torah is not in Heaven, but rather a human project for man to decide over, a project which no Heavenly proclamations can interfere with. And Hashem's response to such an affront: נצחוני בני נצחוני, you have defeated me my sons, you have defeated me.

The Hebrew word נצח, in addition to meaning gain victory can also mean eternal, and based on the latter meaning of the word the Maharsha translates Heaven's response of נצחוני בני נצחוני as "you have immortalized me my sons you have immortalized me!" For by defending the position that Torah is a human project the sages had made the Torah an eternal truth, one that cannot be adjusted by any concerns, human or Divine.

For me this confrontation of the sages is seminal, second to the giving of the Torah on Sinai itself, for in their confrontation with Heaven the sages asserted the human aspect of developing G-d's Torah, precisely the aspect that keeps the Torah and the learner dynamic and alive, leaving every generation and its scholars to unlock and decode the great depth therein.

Ultimately immortalizing the word of G-d. 

---

[1] Chacham Tzvi  167

[2] Essential Essays on Judaism, by Eliezer Berkovits and David Hazony, p. 97

[3] Introduction to  Volume 1, Igrot Moshe Orach Chaim 1

[4] R, Yitzchok A. Breitowitz, Synopsis of Presentation, Conference on Jewish Medical Ethics, San Francisco, CA 1996:  

“In cases, however, of genuine unresolved disagreement (some authorities conclude one way, others conclude another way), the halachic system does contain within its own structure the recognition of extenuating circumstances that may allow the consideration of particular "extralegal" factors in a case. These include, in part, concepts such as "hefsed merubah" (great financial loss), "shaat ha'dechak" (a situation of urgency), "shalom bayit" (promotion of domestic tranquility in a marriage), "darchai noam" (the ways of the Torah are ways of pleasantness, not dissention). It must be emphasized that these factors alone are rarely taken into account in determining halacha on a primary level. In the event that the objective halachic considerations are balanced in both directions, however, these subjective factors will often tip the scale.”

[5] See Igrot Moshe, Yoreh Deah vol. 2, 49

[6] See Peninei Halacha, Likkutim 1, p. 165

[7] See Seforim Blog, April 22 2010

[8] Shabbat 140b

[9] Ta’anit 14a: Rashi - ‘DeLoh amar elah lefi sheHu lo rotzeh leHitanut.’ On ‘le Azmo dorash.’

[10] Yerushalmi, Shabbat  6:1 Of course R. Abbahu denied this.

[11] Yoreh Deah 242,36: ‘Talmid Chacham sheAmer davar halacha beDavar haShayach leDideh...ein shomin leDideh.’

[12] R. Sokol is the Dean of the Lander College for Men, and a graduate of Torah Vodaas. He has a Doctorate in Philosophy and is a member of the Vaad HaRabbanim of Flatbush.

[13] Rabbinic Authority and Personal Autonomy. Ed. By Moshe Z. Sokol, p.87

[14] Berachot 17b.  See also  Ohr Yisrael: The Classic Writings of Rav Salanter and his Disciple Rav Yitzchak Blazer, ch. 30