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Sunday, 5 August 2018

188) HALACHA - ‘DEEP STATE’ OR FULL DISCLOSURE?


MUTUALLY EXCLUSIVE HALACHIC METHODOLOGIES:

INTRODUCTION:

Sometimes there appear to be two faces to Judaism:

One face is presented to the ‘new recruit’ who comes from a secular or moderately Jewish background. He or she is often the target of outreach work, a listener to a talk, or a participant at a weekend learning programme. This ‘new recruit’ can also be the first year student at a yeshiva or seminary specially geared for such initiates.

To these people, Judaism is presented as being open-minded and sensitive to all approaches and able to offer something to everyone relative to their particular path and level. There are no holds barred and any question goes. The rabbis appear broad-minded and charming; they speak well and smile a lot.

But after some time, when the student starts to move on to some higher form of Torah education - that wonderful multifacetedness begins to give way to subtly dominating dogmas.  Slowly hashkafic or politically religious nuances begin to shut out that initial universal openness.

And when the student has, after some years, come full circle and perhaps wants to assume a leadership role or go into the rabbinate, suddenly he is confronted with a type of ‘deep state’[1] and a strong persuasion to start towing party lines.

Depending on the institution’s affiliation, he is taught to suspend his thinking and adopt the thinking of the group. This is how ‘we’ pasken or rule halachically. This is what ‘we’ eat or don’t eat. This is ‘our’ stance on these issues and ‘we’ only study this book but not that one.
The student has thus been transformed from an inquirer and seeker of truth to a mere ‘spokesperson’ for a religious faction.

This occurs particularly as the student is exposed to the raw mechanics of the popular halachic system.

The procedure of determining a psak or halachic ruling, is an elaborate system which one learns through a process of shimush or a type of apprenticeship. But it is not an exact science and the fact remains that a strong subjective component is often present.

In this article, we will explore a number of different halachhic methodologies and see whether one, in fact, has no option but to become a subjective preacher of dogma - or whether it is still possible to remain an objective pursuant of Torah truth?

R. ARYEH KAPLAN:

R. Aryeh Kaplan (1934-1983) writes about a ‘collective Divine inspiration’ which the Jewish People possess when it comes to determining halachic practice:

“God...granted the Jewish people as a whole a sort of collective Divine Inspiration so that they would be able to recognize the correct opinion in questions of Torah law. 
Therefore, when there is any question, it is ultimately decided on the basis of what becomes common practice. Hence, when a decision is accepted as a general custom, it becomes universally binding.
Therefore, any practice, decision or code that is universally accepted by the Jewish people is assumed to represent God's will and is binding as such. Even when a decision is initially disputed, the commonly accepted opinion becomes binding as law.”[2]

R. ASHER WEISS (b. 1953):

This principle as described by R. Kaplan, is reflected in the view of the well-known contemporary posek and dayan R. Asher Weiss. 

Responding to a question on halachic methodology, regarding how to choose from a wide array of different opinions on any given issue, he answers:

“A qualified Rav will have the expertise and training to know which of the opinions is the ‘mainstream’ [and] generally accepted...opinion to rule in accordance with, as well as which other opinions may be relied upon in extenuating circumstances.”[3]

DEFINING ‘MAINSTREAM’?

Of course, the question now becomes what is considered ‘mainstream’ by R. Weiss; and - considering all the different types of Jewish communities -  who are ‘the Jewish People’ and what is ‘common practice’ according to R. Kaplan?

The Orthodox Jewish world today is far from monolithic.  The term ‘mainstream’ would take on many different meanings depending upon who one asks. Try inquiring as to whether one can wear a watch on Shabbat, carry in an eruv, sing Hatikvah, drink milk from a government dairy store, don tefillin on Chol haMoed, and whether a feeding mother should fast on Tisha be Av.

The number of permutations of answers to these questions alone would be astounding.
In theory, the principle of the majority works well - but in practice, it depends upon which constituency one belongs to.

In terms of numbers, the majority of the religious orthodox population today is now Chareidi and that creates a de facto Chareidi mainstream. Does this mean that all orthodox practices must now follow that particular ideology?

THE KABBALAH COMPONENT:

The question of how to define a halachic ‘mainstream’ becomes even more compounded when we take into consideration the role that kabbalah has to play in halacha. As a general rule, Ashkenazim do not rule by kabbalah (even those Ashkenazim who study Kabbalah) - while Sefaradim do.

Thus the kabbalah component complicates the matter of determining halacha even further.

THE DA’AT TORAH COMPONENT:

It becomes even more mystifying when in some circles, the notion of Da’at Torah is introduced as a pivotal factor in arriving at a psak or halachic conclusion.  

It is difficult to refer to Da’at Torah as a methodology as such because it is rather dictatorial in its nature and does not require a technical process of derivation and certainly does not feel the need to offer explanation or elucidation.

Da’at Torah is a perfect example of a ‘Deep State’ at play in some of the more conservative systems of halacha, and in many cases, its authority extends well beyond basic halacha and infringes upon personal, psychological, medical and financial areas as well.  (See KOTZK BLOG 48.)

R. AVRAHAM YITZCHAK HACOHEN KOOK:

Rav Kook (1865-1935) dealt with a dispute with the Chareidim of Jerusalem in his letter to their rabbinic court.
Rabbi Kook had certified as kosher for Passover a factory that produced sesame oil[4], and the Jerusalem rabbis argued that his permissive ruling damaged the ‘wall’ or ‘protective fence’ of halachah. If the smallest opening were allowed for the opinion of those who ruled leniently, they feared the entire wall would be breached.

Against the Chareidi claim that this leniency would undermine the entire wall, Rabbi Kook wrote as follows:

“...I well know the character of our contemporaries [i.e.; the non-Chareidi society].
It is precisely by seeing that we are willing to permit whatever an in-depth reading of the law makes permissible that they will understand that we are permitting it because of the truth of Torah, and many who adhere to Torah will come, with God’s help, to heed the words of halakhic teachers.

But if it is found that there are things that the law itself would permit but that the rabbis leave as prohibited, showing no concern about the resulting burdens and difficulties imposed on Jews, the result will be, God forbid, a great desecration of God’s name, as many of those who violate halakhah will come to say of important principles of Torah that if the rabbis wanted to permit them, they could do so; and the law will be perverted as a result.”[5]

Rav Kook is cautioning halachic decisors to be exacting and particularly accurate in their rulings and not to ‘err’ too much ‘on the side of caution’ - as although well intended, such an approach creates distrust and ultimately may be more detrimental to the structural integrity of the halachic enterprise.

R. DAVID BAR-HAYIM (b. 1960):

R. David Bar-Hayim suggests that we go back to a halachic methodology that was well used in the past. He says (in a talk):

 “...One studies the sources in depth. One does one’s utmost to understand, based on a thorough acquaintance with all the sources and all the interpretations of all the great authorities that came before us - and weighing all these things up - and if necessary and where appropriate, perhaps suggesting a new interpretation or a new understanding - and based on all that process, which is all based on intellectual honesty and trying to fully understand and arrive at the truth...one can finally express an halachic opinion.

-As opposed to what we see nowadays [where] by and large...yeshiva students who go on to become rabbis...are taught that you have no opinion, you do not know and you cannot know what the truth of the matter is, and all you are expected to do - and all you are in fact allowed to do - is to parrot the view of others to say this is what...Rabbi so-and-so holds and therefore that is what you should do – without any reference to the question of whether you actually understand the issue at hand fully, or believe this pesak halacha to be correct and fitting the reality before us.”

In other words, after a full and complete study of all the sources, the halachic decisor must apply his mind and decide according to what is most logical to him as to what will be the most meaningful application of all his research, to the particular circumstances he is dealing with.

He goes on to say that this was indeed the methodology of the Maharshal (R. Shlomo Luria 1510-1574) in his Yam Shel Shlomo.

The Maharshal, famously, objected to the Ramo’s method of presenting halakhic rulings without discussing their derivation. He wrote Yam Shel Shlomo to "probe the depths of the halacha" and to clarify the thought process by which those halachot are reached. He suggested one study all the sources including the Rishonim and then “deciding on which is the more reasonable – and following that view”.

This was also the path of the Chazon Ish (R. Avraham Yeshaya Karelitz 1878-1953) who would weigh up all the sources and options in his mind and based on that accumulation of sources and thought, he would decide the halacha. The Chazon Ish is known for avoiding formulaic or technically methodical analysis of Talmudic passages, instead preferring a more varied and intuitive approach similar to that of the Rishonim.

This was similarly the approach of the Vilna Gaon and his student R. Chaim of Volozhin. It was also the methodology of the Rogotchover. In fact, this was the general methodology of “all the Geonim and all the Rishonim”.

R. Bar-Hayim goes on to share a story about R. Yisrael Salanter (1809-1883), who is known primarily for his works on Mussar (ethics) but was also a great scholar. He refused to take up a position of rabbinic leadership in any community because:

“I know that some of the better-known poskim (halachic decisors) are not correct in my view - and when asked (for) my opinion, I would have to choose between repeating some earlier authorities even though I am convinced it is not true; or expressing my own view and running the risk of being told ‘how can you disagree with so-and-so, or don’t you know this is not how we hold.’”

R. Bar-Hayim concludes:

“But there is as a solution: - To return to the form of Torah study that has always been the gold standard for all our Chachamim; - To study the sources honestly and openly (and) not to accept any view or position as unassailable; - Always to strive for the truth; - To be objective (and) honest... - That has always been the true methodology for study and understanding the Torah.

 - This is the way that Torah students, who wish to achieve greatness, should follow.”


THE CONTRASTING MORE POPULAR VIEW:

Finally, in the interests of balance and fairness, we return to the more popular position of R. Asher Weis. He was asked whether one can rule halacha based on the earlier Rishonim (scholars from 1038-1500) like Rambam or Rosh - or whether we can only rule based on the opinions of the later Acharonim (the codifiers from the 1500’s - after the Shulchan Aruch - till the present day)?

He responds:

“Our psak is based on the Shulchan Aruch and Rama [i.e. the later codifiers] with the opinions of the great poskim after them. Generally, one cannot override their psak because of an opinion in the Rishonim which was not codified.”[6] 

In other words, we cannot take the views of all the Rishonim and others into consideration if they were not endorsed and canonised by the codification process of the Shulchan Aruch and later Acharonim. This follows the well-known principle of Hilchata k’batrai, where the practical law follows the most recent of opinions.

ANALYSIS:

There is no doubt that R. Asher Weiss is echoing the sentiment of the prevailing view in the halachic world today.

His position is certainly not without precedent.

This would be in sharp contradistinction to the view of R. Bar-Hayim who would have no difficulty in determining halacha based on ”all the interpretations of all the great authorities that came before us - and weighing all these things up” and then ruling accordingly.

Interestingly, as he points out, this view is also not without precedent.

Hence we have two mutually exclusive halachic methodologies.


R. BENJAMIN LAU:

THE MODERN INFORMATION EXPLOSION:

R. Benjamin Lau makes a salient point and perhaps offers another angle to the discussion:

In the 12th century, when Rambam wrote his Mishneh Torah which was basically a summary of the entire Talmud, he was confronted by much opposition. Part of the resistance against him was due to the fact that he was taking authority away from other leading rabbis who no longer needed to be consulted on matters of law as everything was suddenly contained in a single concise, precise and even well-indexed work.

A similar phenomenon is taking place today in the aftermath of the information explosion of the internet.

R. Benjamin Lau suggests a shift of emphasis from deciding issues of halacha to one of ‘full disclosure’ and to ‘managing’ the vast and unprecedented array of halachic information so readily available to all who seek it:

“Knowledge has moved into the public domain.

Everyone can know everything.

Halakhic sages must recognize that change and become advisors and navigators on a sea of uncertainties. The Torah’s truth is revealed in all its expansiveness.

The rabbi is expected to know and present the various aspects of each issue and not to conceal those aspects that are inconsistent with his own point of view. If a rabbi is untrue to the sources and reaches his decision without taking account of conflicting views, he will be seen to be untrustworthy.

And a lack of trust between a rabbi and his community of questioners will drive a wedge between that community and the Torah overall. Stating the truth, of course, does not require the decisor to remain neutral; his role requires him to reach a decision one way or the other. But the decision must be reached through disclosure, not concealment, of the alternatives.

.... Now, when everyone has access to the Responsa Project data base and Google provides answers to all imaginable questions, everyone can check every responsum and examine its trustworthiness. A rabbi who rules in an oversimplified way, whether strictly or leniently, in an area of halakhic complexity will be caught as untrustworthy.”[7]

We are now, whether we like it or not, in an internet age where “everyone can know everything”.  This certainly applies to halacha as well. The horse has already bolted from the stable. Many posekim even consult the internet databases to research their sources.
We can no longer rely on the ‘grey art’, ‘deep state’ and sometimes ‘lottery’ of the halachic process.

[A colleague of mine once made a controversial statement in his shul which upset some of the congregants. He needed halachic backup so he consulted his Rosh Yeshiva, who responded: “Do you want me to find for you or against you?”]

The decisor today should choose, according to R. Lau,  to make full disclosure of all the halachic options - because he needs to know that the questioner has probably already done much of the research anyway - and only after that should he express his opinion, coupled with his clear motivation and convincing reasoning behind his opinion.


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


POSTSCRIPT:

In an insightful article, The Yerushalmi as a Source of Halacha, by R. Michael Broydehe explains which of the Halachic decisors were prepared to rely on the Yerushalmi and which were not. Then he writes about Rambam's view:

"A good claim could be made that Rambam did not fall clearly into either of these camps and his exact methodology for resolving Talmudic disputes remains cloaked in mystery. However, it is clear that he was quite familiar with the Yerushalmi and sometimes accepted its rulings even when they stood in opposition to apparent rulings of the Bavli. My own intuition is that Rambam used logical tools to resolve disputes and was not even fully wedded to the notion of the complete superiority of the Bavli over the Yerushalmi in all cases.

....Rambam had an affinity to accept Talmudic views that are supported by logic over views supported by scriptural verses. As an initial proof to this proposition...(see) four examples from Tractate Sanhedrin: 8b, R. Yose omer; 10a, Rava amar malkot bimkom mitah; 30a-b, R. Natan ve-R. Yehoshua ben Korchah; and 16b, R. Shimon hayah doresh ta’ama de-kra."





[1] The term "deep state" was defined in 2014 by Mike Lofgren, a former Republican U.S. congressional aide, as "a hybrid association of elements of government and parts of top-level finance and industry that is effectively able to govern the United States without reference to the consent of the governed as expressed through the formal political process." According to the journalist Robert Worth, "The expression `deep state’ had originated in Turkey in the 1990s, where the military colluded with drug traffickers and hit men to wage a dirty war against Kurdish insurgents."
[2] See "The Handbook of Jewish Thought" (Vol. 2, Moznaim Publishing).
[3] See “Beit Midrash for Biurei Halacha Binyan Zion”.
[4] Which some consider being legumes or kitniyot.
[5] See Responsa Orah Mishpat, 112.
[6] See Beit Midrash for Biurei Halacha Binyan Zion.
[7] See “The Challenge of Halakhic Innovation”, by Benjamin Lau.

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