The varying faces of Piskei Halacha:
A Psak Din from R. Henkin 1934 regarding an inheritance
A Psak Din signed by 250 rabbis declaring the Lubavitcher Rebbe the Messiah
Introduction
This article – based extensively on the research by Professor Adiel Schremer[1] − takes an in-depth and forthright look at the sometimes mysterious process of Halachic decision-making as practised by the Posek (Halachic judge or decisor). The Torah teaches that if any matter of law shall arise in the future that is too difficult for people to determine by themselves, then they must approach the “judge who shall be in those days” (Deut. 17:8-11) for adjudication:
וּבָאתָ֗ אֶל־הַכֹּהֲנִים֙ הַלְוִיִּ֔ם וְאֶ֨ל־הַשֹּׁפֵ֔ט אֲשֶׁ֥ר יִהְיֶ֖ה בַּיָּמִ֣ים הָהֵ֑ם וְדָרַשְׁתָּ֙ וְהִגִּ֣ידוּ לְךָ֔ אֵ֖ת דְּבַ֥ר הַמִּשְׁפָּֽט
However, the Torah is silent on exactly how the judge is to go about deciding the law:
“Scripture offers no answer, and surprisingly it is neither discussed by later classical Jewish tradition, nor addressed by modern students of Jewish law” (Schremer 2010:5).
In practice, we all know that the simple answer is to ‘ask a rabbi,’ or, under more pressing circumstances, to ‘ask a Posek’ (an authoritative Halachic decisor). The question, though, in light of the silence on the matter, is what specific process or methodology (if any) does the Posek (have to) follow? Various interest groups sometimes propose direct or indirect 'guidelines,' but, as we shall see, that only contributes to the problem.
Schremer’s notion that Halachic rulings are determined,
not found
For many, the process of consulting a Posek is ‘self-evident’ and ‘obvious’ – the Posek is a scholar, a rabbi’s rabbi, and he ‘looks it up’ and finds the Halacha.
“The hidden assumption behind this tacit view is that the Halakha ‘exists’ out there, that is, in the halakhic sources, and it needs only to be ‘found’. Once the Posek ‘finds’, as it were, the Halakha in the halakhic texts he ‘declares’ it, and this is the heart of the halakhic process” (Schremer 2010:8).
However, as Schremer points out, the process of determining Halacha is not so straightforward and certainly is not standardised. In reality, the ruling is not found, but rather determined based on certain predispositions often based on social, cultural and economic criteria (which we shall develop further in this article).
Pushback
The notion that the Posek or Halachic decisor, may be subjected to societal influences, is ꟷ obviously ꟷ not something readily admitted by Posekim, and many deny that outside factors could ever influence the clear and focused thinking of the Posek. Some, like R. Haym Soloveitchik, for example, actually belittle the role social and economic reality plays in the shaping of Halacha (Soloveitchik 2004:77-78).[2]
Aryeh A. Frimer adopts a similar approach to R. Soloveitchik, highlighting the independent and self-governing nature and authority of Halacha to withstand outside influences:
“In the absence of prophecy, we have no direct way of knowing what God’s will is. Classical Orthodoxy maintains, however, that the Divine Law-Giver gave us the tools to indirectly discover His will via the halakhic process…The halakhic system and process yields the pesak Halakha (halakhic decision) which is considered by tradition to be the closest human beings can come to approximating the Divine will [retzon haBoreh]” (Frimer 2004:4).[3]
Frimer also mentions that the Posek arrives at the Halachic
judgement using “rules of pesak,” or rules of adjudication.
Schremer disagrees with Frimer that there even are formal rules of adjudication;
and he disagrees with Soloveitchik that predispositions and even policy
preferences have no bearing on the rendering of the Halachic psak, or
ruling.
Instead, Schremer finds it helpful to show evidence that extraneous factors, outside of the technical legal source texts, indeed affect the rulings issued by all judges whether secular or religious.
Comparisons with secular law
Research on the judicial process of decision-making by judges in secular courts similarly reveals a subtle and non-standardised approach, where policy preferences influence legal reasoning more than law books:
“More than a half century of empirical research tells us that judges tend to decide cases in ways that are consistent with their policy predispositions.” (Braman 2009:13).[4]
R. Haym Soloveitchick does not acknowledge that such a notion of influence is even possible within the Halachic system because the Posek is (at least theoretically) regarded as being God-fearing:
“If law is conceived of, as religious law must be, as a revelation of the divine will, then any attempt to align that will with human wants, any attempt to have reality control rather than to be itself controlled by the divine norm, is an act of blasphemy and is inconceivable to a God-fearing man” (Soloveitchick 1987:205).[5]
R. David Bleich follows a similar line of thought as Soloveitchik and Frimer that Halacha remains essentially impermeable to any outside societal influences:
“[Halakha] does not permit policy considerations to adjudicate between competing theories or precedents” (Bleich 1995:xvii).[6]
Schremer disagrees with these views and he challenges the three perceptions that: 1) the Posek is never influenced by policy; 2) the Posek never shapes or determines Halacha, and; 3) the Posek only discovers and reveals Halacha in its ‘pure’ form, thus representing the Divine Will.
Legal Formalism vs Legal Realism
Going back to secular law for a moment, there are two schools of jurisprudence known respectively as ‘Legal Formalism’ and ‘Legal Realism.’ By understanding the differences between these two general approaches to law, we might be better able to determine what system of law Halacha follows.
1) Legal Formalism seeks to enforce what the law actually says, rather than what it could or should say; and it sees the law as a series of rules and principles independent of outside political and social institutions. In this system, the letter of the law dominates.
2) Legal Realism, on the other hand, sees law, as a body of guidelines to be enforced as a positive agent to serve justice and the greater good. In this system, the spirit of the law dominates.[7]
1) Is Halacha Legal Formalism?
The aforementioned views of Frimer, Soloveitchick and Bleich seem to understand Halacha as a system of Legal Formalism, with the outcomes and judgements waiting in texts to be discovered and implemented. They see an almost tangible entity called ‘the Halacha’ that is waiting to be exposed. And in a case where ‘the Halacha’ remains elusive, then there is a set of clear ‘rules of interpretation’ that can be applied. This is what Benjamin Brown refers to as “Halakha’s formalism.” He, too, subscribes to this system and writes:
“Our fundamental point of departure should be that the Halakha is a system with a strong formalistic character” (Brown 2006:244).[8]
2) Is Halacha Legal Realism?
Opposing the body of scholars who believe Halacha is Legal formalism, is Schremer, who disagrees strenuously. Schremer claims rather sharply that adopting the formalist approach to Halacha only serves the Posek himself:
“This approach helps maintain the view of the Posek as a ‘holy man’, as it were, who decides matters only in accordance with the Divine will…[A] formalist view enables the Posek to confer Divine authority on his decision. It is not ‘his’ decision; it is not what he, the Posek, says, but rather it is ‘the Torah’, or ‘the Halakha’, who speaks (through him). By presenting Halakha as a pre-existing ruling, which the Posek merely ‘discovers’, the halakhic decision of the Posek is endowed with divine authority, and its status is thus elevated” (Schremer 2010:24).
Schremer rejects Legal Formalism as the basis of Halacha, and instead, sides with other scholars who adopt the view that the Halachic process is more related to Legal Realism. Schremer maintains that Halacha is far more multifaceted and that it developed considerably by responding to historical and social conditions. But Schremer is not only opposed to the formalist approach to Halacha from a theoretical, historical and pragmatic perspective because he maintains ꟷ once again very sharply ꟷ that the formalist approach is not rooted in Jewish tradition! Schremer writes:
“[I]t is erroneous, from a hermeneutical point of view, to accept the formalistic image of the halakhic process” (Schremer 2010:27).
The active silent choice
The problem Schremer has with the formalist approach is that very often the Halacha is ambiguous. This means that at some stage a choice of which Halacha to choose has to be made. The important but often-overlooked question is, what determines that choice of one Halachic outcome over another? The reason for the choice is not usually explained. The anti-formalist E. W. Tomas makes this same observation in a secular legal sense as well:
“Essentially, a formalistic approach masks the manifold choices facing the judge in the course of reaching a decision. Judicial reasoning is then diverted into a more or less artificial process in which the reality of choice is ignored or denied” (Tomas 2005:55).[9]
Schremer, siding with Legal Realists like E. W. Tomas and Hanoch Dagan, quotes the latter, “doctrinal multiplicity is endemic to law” (Dagan 2007:615).[10] In other words, in any law, there is always some material or interpretative choice that has to be made between alternative but equally valid aspects of the law. The problem is that it usually remains a silent choice.
Now, this notion of choice is particularly relevant to Judaism because Halacha, by its inherent nature, draws from a vast array of source literature and interpretation spanning over two thousand years of Jewish learning and legal thinking.
“Most frequently, the Posek chooses – whether consciously or not – which halakhic rule is the most fitting one to the case at hand, based on his understanding of the nature of the problem. Yet, other Poskim may think that a different rule is more applicable, without any possibility for us to decide which of the options is more valid” (Schremer 2010:29).
Unfortunately, this active choice is not usually admitted nor
acknowledged, and it remains a hidden and silent choice, excluding a neglected
and potentially equally valid alternative outcome. The formalist approach turns
a blind eye to ambiguity in law and creates the impression that “the law” lurks
within legal texts, waiting to be discovered and implemented.
Sometimes, one can try to defend the Posek who follows the formalist approach and declares that he is simply following ‘the Halacha.’ However:
“the truth of the matter is that he [the Posek] was choosing legal materials from a variety of relevant sources, and he was reading them in a specific manner that ultimately produced his legal opinion. Another Posek could have reached a different conclusion, as a result of different choices he would have made, whether consciously or unconsciously” (Schremer 2010:31).
This means that in reality, it is very difficult to truthfully argue that a Posek is simply following ‘the Halacha.’ Which Halacha is he following? The one he chose to highlight.
The alleged ‘rules’ of interpretation
If the choices of potential and theoretical law in the lawbooks, and particularly within Halacha, are multifarious, so too are the so-called ‘rules of interpretation.’ Sometimes these ‘rules’ are contradictory, and sometimes the Posek does not even abide by the ‘rules.’ An example follows:
In the Talmud, when one is faced with two contradictory rulings or opinions, the solution is simple. We have a well-established principle that we abide by the most recent opinion, הלכתא כלישנא בתרא. However, according to Tosafot in Avodah Zara 7a (ד״ה בשל) the principle is the exact opposite, and we must follow the first and oldest opinion:
בשל תורה הלך אחר המחמיר - רש"י היה פוסק בכל איכא דאמרי שבתלמוד בשל תורה הלך אחר המחמיר בשל סופרים הלך אחר האחרון וריב"א פי' דכל איכא דאמרי לגבי לשון ראשון כטפל לעיקר והלכה כלישנא קמא ור"ת פירש בדאורייתא לחומרא בדרבנן לקולא כרבי יהושע בן קרחה דהכא ורבינו שמשון היה מפרש דבכל מקום שיש להתברר כחד מינייהו משיטת התלמוד בתריה אזלינן
So, what do we do? Do we abide by the ‘oldest’ OR the ‘most recent’ legal precedent ꟷ and who do we ask?
Is ‘passive reading’ of Halacha possible?
A further complication, as all students of hermeneutics (the theory of textual interpretation) know, is that a reader:
“never approaches the text free of values, interests, and predispositions…[and the] reading cannot be described in any simple manner as a passive ‘listening’ to the message that ‘exists down there in the text’…The meaning of the text is thus produced, or comes-into-being, in the very process of its reading and interpretation. In other words: there is no text in any meaningful sense prior to its reading, for reading is the process by which the text receives its meaning” (Schremer 2010:31-32).
This understanding is also expressed by Bernard Jackson:
“the reading of ancient texts by legal historians cannot be ‘innocent’. All meaning is constructed: texts do not ‘make sense’; we attribute sense to them…[by] the resources we bring to that process” (Jackson 2003-3:1).[11]
R.
Akiva as Legal Realist
An example of a reader bringing their own interpretation to a text, this time a biblical text, is R. Akiva (50-135 CE). He was confronted by the verse in Leviticus 15:33 which states וְהַדָּוָה בְּנִדָּתָהּ, referring to a menstruant woman. R. Akiva notes that the זקנים הראשונים, or classical elders, had always interpreted these words to mean that a menstruant woman (who is to separate from her husband for her menstruation period) is to make herself unappealing to her husband.
R. Akiva well-knew the provenance and authority of this ancient practice but he was worried that if the woman made herself unappealing, her husband may decide to divorce her. The classical interpretation created a social problem. He set about changing the law and completely revised the long-standing practice by suggesting that, instead, she should adorn herself. R. Akiva was innovative in the face of an old interpretation of Leviticus 15:33 and read וְהַדָּוָה֙ בְּנִדָּתָ֔הּ to imply the very opposite of its original interpretation.
“Now, consider Rabbi Aqiva’s argument…[h]e claims that such an understanding as held by the Early Sages, that is, accepted by the tradition up to his own days, might yield undesirable results. He is then putting forward a new understanding of the Torah, which is based on, and motivated by, his understanding of the institution of marriage and his value judgment concerning divorce…and these perceptions shape, in turn, his halakhic stance…
The representation of the halakhic process as a journey, in which the Posek sets himself to ‘study’ – and then to ‘accept’ and ‘declare’ – the halakhic ‘truth’ that is ‘hiding’, as it were, in the halakhic texts, distorts the unique nature of halakhic interpretation as a legal enterprise” (Schremer 2010:37).
Schremmer’s
total rejection of the Legal Formalism model for Halacha
Schremer is not only opposed to the formalist approach to Halacha but declares that:
“A ‘formalist’ view of halakhic decision-making is wrong…It is erroneous…to claim that the Halakha is ‘discovered and implemented’, for it is rather made by the Posek… the Posek is never ‘compelled’, as it were, by the Halakha, but rather it is he who shapes it through his selections and decisions which texts to rely upon…and there are no fixed ‘rules of Pesak’…and therefore the claim that the Halakha itself guides the Posek on how to rend a halakhic decision is nothing but a delusion” (Schremer 2010:39-40).
This same point is made by the anti-formalist E. W. Tomas:
“Simply stated, judges cannot exercise the choice or choices that make law and at the same time be declaring a pre-existing law” (Tomas 2005:25).
The
Psak (official Halachic ruling) is G-d’s Will
To enhance the status and authority of the Posek, the final rulings are often portrayed as the ultimate fulfilment of the Divine Will through the agency of the human Posek. However, Schremer argues that this position is not the message portrayed by the early Talmudic rabbis. In the famous Talmudic story of תַּנּוּר שֶׁל עַכְנַאי or Achnai’s Oven (b. Bava Metzia 59b), the notion of Halacha as G-d’s Will is refuted.
In short, R. Eliezer is depicted as arguing a point of Halacha with the rest of the Sages. R. Eliezer brings every possible legal proof to support his opinion, but the Sages refuse to accept his ruling. In the end, out of desperation, he is described as performing miracles to prove that he is correct ꟷ but the Sages still refuse to accept his opinion. Eventually, G-d Himself declares R. Eliezer to be correct ꟷ but the Sages are still not appeased. The point of the story is then briefly summarized by the spokesperson of the Sages, R. Yehoshua, who famously declares ‘לא בשמים היא, [The law] is not determined by Heaven.’ Instead, the official position of Judaism is always to be determined by the consensus of the majority of the Sages and not by one individual, even if G-d says the individual is right!
This story is often told to emphasise that miracles and the supernatural have no place in the Halachic process. But it seems that the deeper message of this famous story is that Halacha is not necessarily to be viewed as an expression of G-d’s will!
“What is so striking, in my opinion, is that we have here a clear case where the will of God on how to decide the halakhic question under discussion is known, yet the Sages refuse to consider it as a criterion for their halakhic decision making” (Schremer 2010:44).
According to this interpretation, establishing the unattested Divine Will has no centrality in the Halachic process. Halacha does not, nor it is supposed to, represent Divine Will on earth.
Supporting this is the well-known notion of ‘אלו ואלו דברי אלקים חיים, these [laws] and those [laws] are the words of the living G-d,’ so the idea of a Psak Halacha representing the singular will of G-d seems, by definition, to be somewhat misplaced.
Notwithstanding all this:
“Poskim are virtually always insulted when confronted with the claim that their decisions are based on considerations other than the Halakha, and therefore they should openly be guided by recognition of contemporary social needs. They reject this view, claiming, instead, that they decide matters only according to their understanding of the demands of ‘the sources’…not by any desired outcome” (Schremer 2010:47).
Fascinatingly, according to Braman (2009:19-28), secular Judges following the Formalist approach, similarly reject challenges to their decision-making. They wholeheartedly and sincerely maintain that they make only ‘legal; considerations, and that their decisions are based on ‘the law’, not on policy or personal preferences. Yet, as mentioned at the beginning, empirical studies have shown that the rulings of Judges are largely shaped by their (conservative or liberal) policies attitudes, social values and beliefs.
This phenomenon, according to Schremer, is reflected in the Posek, who begins the process of his Psak, or ruling, with:
“a possible halakhic stance…constructed in his mind. When he then proceeds to ‘learn’ the halakhic sources his learning is already guided by the initial stance intuitively constructed in his mind. That process of learning and reasoning, therefore, is, almost by definition, a process of justification and anchoring… [W]e must not fall into the trap of assuming that they were present in halakhic discourse from its very beginnings, as if they were ‘given to Moses at Sinai’” (Schremer 2010:48-50).
According to Schremer, applying the approach of Legal Formalism to Halacha is intrinsically “wrong.” It is based on a misunderstanding of the nature of legal interpretation. He strongly argues that Law and Halacha cannot uncover the intent of the author the way a philologist would read literature, or the way a historian would read a historical text. The philologist and historian can ꟷ and must ꟷ attempt to put themselves in the mind of the author, but a Posek (because of the many possible Halachic choices) should aim to read the specific sources that give the text the best practical and ethical meaning he can find for its implementation in the present.
When a historian reads Josephus, he or she must put themselves in the mind of Josephus to understand as best as possible who Josephus was. The Posek cannot do the same with Halacha because Halacha is not a single entity that the Posek can uncover and reveal ‘the Halacha’ (let alone claim to express the Divine Will).
The
suggestion of a critical approach to reading the Psak of the Posek
Schremer suggests a critical (and that does not mean to criticise but to interpret intellectually, essentially and critically) approach to reading the rulings of the Posek. This is because he rejects the model of Legal Formalism for Halacha, and submits that the model of Legal Realism, instead, best corresponds to the traditional Talmudic approach.
Schremer, therefore, advocates that, when examining any Halachic ruling, we should ask the following critical questions:
“[W]hat was the social problem which the Posek was
facing, and which he attempted to solve?
What were the social – economic, political,
power-relational, and other – interests involved, and which may have shaped his
approach to the problem? And only at last (but not least)…ask: how did the
Posek justify his halakhic decision?
What were the sources he chose to quote, and which [were
the] sources he decided to disregard?
The notion of ambiguity inherent in Halacha, lends itself to more to defining Halacha as Legal Realism rather than Leal Formalism. Halacha, in all its formulations, is usually presented as a spectrum with some degree of choice. In fact, this ambiguity is one of the most common factors that students of Halacha grapple with while studying Haklachic texts. To impose an almost binary and formalistic approach to Halacha simply does not represent the reality of the disciple.
Further Reading
For
more on the spectrum of Halacha, see Kotzk
Blog: 173) MISHNA BERURA – HOW ‘SOFT STRINGENCY’ EVOLVED INTO ‘HARD
STRINGENCY’:
[1]
Schremer, A., 2010, ‘Toward Critical Halakhic Studies’, Tikvah Working Paper
04/ 10, 1-56.
[2]
Haym Soloveitchik, H., 2004, ‘Halakhah, Hermeneutics, and Martyrdom in Medieval
Ashkenaz (Part I of II)’, Jewish Quarterly Review 94.
[3]
Aryeh Frimer, A., 2004, ‘Feminist Innovations in Orthodoxy Today: Is Everything
in Halakha—Halakhic?’, JOFA 5:2.
[4]
Braman, E, 2009, Law, Politics, and Perception: How Policy Preferences
Influence Legal Reasoning, University of Virginia Press, Charlottesville
and London.
[5]
Soloveitchik, H., 1987, ‘Religious Law and Change: The Medieval Ashkenazic
Example’, AJS Review 12.
[6]
Bleich, J. D., 1995, Contemporary Halakhic Problems, Volume 4, Ktav and
Yeshiva University, New York.
[7]
Online source: https://sftlawyers.com/legal-formalism-vs-legal-realism-the-law-and-the-human-condition/.
[8]
Benjamin Brown, B., 2008, ‘פורמליזם וערכין: שלושה דגמים’ (‘Formalism
and Values: Three Models’), in New Stream s in Philosophy of Halakhah, edited
by Aviezer Ravitzky and Avinoam Rosenak, Magnes Press and Van Leer Institute, Jerusalem.
[9]
Thomas, E.W., 2005, The Judicial Process: Realism, Pragmatism, Practical
Reasoning and Principles, Cambridge University Press, Cambridge.
[10]
Hanoch Dagan, H., 2007, ‘The Realist Conception of Law’, University of
Toronto Law Journal 57, 607-660.
[11]
Bernard S. Jackson, B. S., 2002-3, ‘Models in Legal History: The Case of
Biblical Law’, Journal of Law and Religion 18, 1-30.
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