Wednesday, May 2, 2018

Lomdus And Psak Halacha - Part 1

One very common phenomenon in todays world is that Halacha is paskened by people who are not lamdanim. It could be Rabbis or "Rabbas" or "yoatzot" etc. If someone is not a talmid chochom with broad knowledge of Shas, then he or she has no right to pasken Halacha and doing so is a corruption of the halachic system [if a "yoetzet" merely tells a woman a straightforward Halacha written in Shulchan Aruch or directs her question to a Rav then there is obviously no problem. If the yoetzet is a bkiah b'shas and poskim then it is a different story - if such a woman exists]. Just because somebody completed a study "program" and answered a few questions on a test doesn't make them halachic authorities. It just makes them someone who completed a study program and answered a few questions on a test. A sefer recently came out written by women on the halachos of  niddah. From the little I saw, it is just a likkut - a compilation of the various opinions on different question. There are a thousand sfarim on the halachos of niddah and this sefer summarized what some of them said. Likkutim are very helpful but that doesn't make such sfarim authoritative. If someone wants to become an authority that requires years and years of intense learning in the Beis Medrash.

Here is the preface of the book Contemporary Halachic Problems Vol. 5 that talks about what it means to be a posek. The author, Rav Bleich Shlita, is a unique Talmid Chochom who has enriched English language Torah literature in ways few others have. His scope is extremely broad, he has mastered not only tremendous amounts of Torah but many secular wisdoms such as science and law.    

Rabbi J.D. Bleich

As I have written elsewhere, to my mind, halakhic decision-making is primarily a science but it is also an art. Halakhah is a science in the sense that, in its pristine form, there is no room for subjectivity. That is not to say that there is no room for disagreement. Disagreement abounds in the natural sciences no less so than in Halakhah. But, in picking and choosing between contradictory and conflicting theses, the scientist acts on the basis of the canons of his discipline as understood by his quite fallible intellect, not on the basis of subjective predilections. The halakhic decisor faces the same constraints.

The decisor must seek neither the stringent ruling nor the lenient ruling but the view that is most authoritative. Moreover, there usually is a view that has been accepted in practice by the majority of poskim as the accepted standard. Thereupon, such a ruling becomes normative and deviation cannot be considered other than by virtue of compelling reasons. It was the view of many of the most renowned personages in the annals of halakhic scholarship that the rulings accepted as authoritative by the community of Israel were accepted as such by virtue of the operation of divine providence.

To be sure, not all minds think alike. As expressed long ago by the Sages, "Just as their countenances are not similar one to another, so are their intellects not similar one to another" (Palestinian Talmud, Berakhot 1:9). One person may regard an argument as compelling; another may not. One person may assign greater weight to a precedent or to the position of a given authority while another may assign lesser weight to the same precedent or position. Each may regard his assessment as crystal clear and regard the opposing view as ill-informed.

But halakhic decision-making is indeed an art as well as a science. Its kunst lies precisely in the ability to make judgment calls in evaluating citations, precedents, arguments, etc. It is not sufficient for a halakhic decisor to have a full command of relevant sources. If so, in theory at least, the decisor par excellence would be a computer rather than a person. The decisor must have a keen understanding of the underlying principles and postulates of Halakhah as well as of their applicable ramifications and must be capable of applying them with fidelity to matters placed before him. No amount of book learning can compensate for inadequacy in what may be termed the "artistic" component. The epithet "a donkey carrying books" is the derisive reference employed in rabbinic literature to describe such a person.

This talent is partially innate and partially acquired. No one springs from the womb as an accomplished musician. Training and practice are necessary prerequisites. Some teachers are certainly better pedagogues than others; some are certainly more proficient than others in transmitting subtlety in analysis, novelty in interpretation and sophistication in execution. But no amount of instruction and practice will make a musician of one lacking in musical talent. Any teacher of high school math will certify that a student who experiences little difficulty in solving problems presented in mathematical form but who scores significantly lower in analyzing verbal problems is the rule rather than the exception. Law school examinations typically take the form of hypotheticals and fact patterns designed to test, not simply knowledge of the law, but the ability to identify multifaceted issues as well as agility in applying legal theories to novel situations, Quite apart from breadth of knowledge, it is recognition of applicable categories and principles as well as depth of analysis with regard to substantive matters that distinguish the consummate halakhic scholar from the neophyte. When confronting conflicting positions and precedents, it is nuanced sophistication in applying canons of decision-making that is the hallmark of a proficient decisor.

In order to understand the role of lomdut it is necessary to focus attention upon the process by means of which definitive rulings are derived from fundamental principles. Only by means of the halakhic dialectic is it possible to appreciate the halakhic process as it is employed le-hasik shematteta aliba de-hilkheta, in reaching definitive conclusions on the basis of pertinent sources.

There are really two distinct forms of psak halakhah. The first, which at least in our day is by far the most prevalent, involves a decision-maker who either regards himself as a talmid she-lo higi'a le-hora'ah, who is not entitled to an independent authoritative opinion of his own, or a person who for whatever reason has no strongly held opinion with regard to the question before him. Such an individual must perforce pick and choose from positions enunciated by earlier decisors. A person in such a position must employ various kellalei hora'ah or canons of halakhic decision-making (e.g., majority rule, halakhah ke-batra'i, safek de-oraita, safek de-rabbanan) in adjudicating between conflicting positions. Application of such rules is scientific in the sense that there is little room for subjective judgment. Of course, a determination must be made with regard to which positions are to be considered in the evaluation process and which are to be dismissed as entirely unworthy of consideration in the balancing of competing factors. More likely than not, determination is made, not with regard to the position itself, but with regard to the author of the opinion: Is the opinion that of a person whose erudition commands respect or of a talmid to'eh (errant student)? In principle, that, too, is a determination made on the basis of objective criteria.

A purer or more basic form of psak takes place when a scholar, upon analysis of the problem and perusal of relevant sources, independently formulates an opinion to which he adheres with conviction. Assuming that the decisor is an individual who is higi'a le-hora'ah and that the deliberative process has been undertaken with intellectual honesty, the decisor need not feel conflicted because of opposing views, and those subject to his authority may rely upon his opinion with equanimity.

Apart from perusal of sources, precisely what is the nature of the deliberation that yields a psak halakhah? In the vast majority of cases, it involves what in secular law schools is termed "issue-spotting." But, at least at times, it is something entirely different, viz., theoretical analysis of a halakhic concept or provision that proves to be dispositive. I regard both enterprises as scientific because, if carried out properly, both are compelled by the intellect. However, at the same time, it must be candidly recognized that theoretical analysis and, to a lesser degree, "issue-spotting" as well, requires acumen that is far from universal and in that sense may be regarded as an art.

Traditionally, the curricula of yeshivot did not emphasize study of psak halakhah. Although study of psak halakhah often received scant attention, the process through which psak halakhah is derived was all but ignored. And for good reason: The process cannot be taught. One does not teach a toddler how to walk; walking involves a skill that develops innately. The most that we can do is provide an example to be emulated. National law schools pride themselves on not teaching the law but on teaching their students "to think like lawyers." And how does one teach a law student to think like a lawyer? Not by teaching logic or epistemology but by example. The infant observes adults walking, seeks to emulate them, tries to do so repeatedly, falls each time, finally succeeds in taking a number of faltering steps and ultimately masters the science of walking. The law school student is forced to analyze case after case, to trace the reasoning that leads from X to Y and to understand why, given the antecedent assumptions and goals, the reasoning is compelled. The student stumbles and falls repeatedly but ultimately learns by doing. The process parallels that of Eastern European yeshivot which concerned themselves with theory, analysis and methodology rather than with Halakhah per se on the assumption that factual information can be readily obtained at any time but that theory and skills can be mastered only upon assiduous application over a prolonged period of time. It was precisely this awareness that prompted Hazal to observe with regard to the training process: "Gedolah shimmushah shel Torah yoter mi-limmudah."

This is merely a verbose way of saying that (1) psak is impossible without lomdut and (2) that lomdut cannot be taught other than by example. Of course, the Halakhah, once definitively formulated, can be presented in capsule form. But not every hypothetical can be spelled out and not every eventuality can be anticipated. Rambam's codification of the corpus of Jewish law in the form of the Mishneh Torah and later R. Joseph Karo's restatement in the form of theShulḥan Arukh met with opposition not so much because of objections to specific rulings or because those rulings could not be lightly overturned but because students might erroneously believe that, having mastered the factual material, they might dispense with both the underlying theory as well as the skills necessary to derive halakhic formulations from primary sources with the result that they would be quite incapable of applying the concise, cryptic rulings presented in those works to novel situations that must inevitably arise and to complex questions that can be resolved only upon identification of component issues.

Maharsha, Hiddushei Aggadot, Sotah 22a, remonstrated:

In these generations those who render halahkic decisions on the basis of the Shulḥan Arukh, but do not know the reason underlying every point, if they do not previously examine the matter on the basis of the Talmud…, errors will occur in their decisions and they are among the destroyers of the world. Therefore, one should reprimand them.

At a much later date, the author of Pitḥei Teshuvah, Yoreh De'ah 242:8, modified Maharsha's comments with the observation that "perhaps" those remarks were cogent

"in the time of Maharsha when there was as yet no commentary on the Shulḥan Arukh. But now that the Taz, the Shakh, the Magen Avraham and other latter-day works have been authored and the reason for every ruling is explained in its place, it is proper to render decisions on the basis of the Shulḥan Arukh and the latter-day authorities".

It is questionable whether Pitḥei Teshuvah's assessment was correct when it was enunciated. Perhaps a question of a spoon and a pot can be decided on the basis of information available in a compendium, perhaps not. Experience teaches that quite frequently the serious questions presented to rabbinic decisors in this generation do not involve matters that are straightforward and clear-cut in nature. Those matters cannot possibly be addressed by persons lacking analytic skills.

American law schools teach students "to think like a lawyer" by forcing the student to analyze actual cases. The cases serve as examples of legal reasoning. I know of no way to illustrate the relationship of lomdut to psak other than by concrete example. The illustrations may appear to be but a string of anecdotes designed to demonstrate what to many is self-evident.

"Brisk" has come to be synonymous with the analytic method. Yet, as reflected in the following anecdote, R. Chaim pointed to the "issue-spotting" aspect oflomdut when pressed to justify his insistence upon lomdut as a sine qua non of psak. I heard the narrative as a youth during the course of a shi'ur on Pesaḥim delivered by a rosh yeshivah who was a talmid of the Brisker Rav during the war years. To my regret, I did not commit the material to writing at the time and since I am unaware of any published version I must rely upon my memory which is all too fallible.

As related by R. Velvel, apparently R. Chaim and a prominent non-Lithuanian rabbinic personage met at a wedding. Not surprisingly, the rabbi inveighed against the Lithuanian mode of study and decried the lack of emphasis uponpsak halakhah in Lithuanian yeshivot. R. Chaim countered with the assertion that, in order to arrive at a correct psak, lomdut is essential. The response was met with derision. Thereupon, R. Chaim offered to prove his point by presenting a question to the rabbi which R. Chaim was fully confident that, not being trained in the Lithuanian methodology, the rabbi would answer incorrectly.

The hypothetical involved two women, one Jewish, the other a gentile, each cooking meat outdoors in separate pots over adjacent fires. The question: The gentile woman shakes her pot, causing a piece of non-kosher meat of indeterminate size to fly through the air and land in the pot belonging to the Jewish woman. Is the food in the Jewish woman's pot permissible or is it impermissible because of the admixture of non-kosher meat? The rabbi responded by observing that the answer hinges upon whether or not the quantity of kosher food is sixty times as great as the quantity of non-kosher food that fell into the pot. When the non-kosher food is of a variety different from the kosher food, the requirement for a quantity sixty times as great for nullification to be effective is biblical; if both foods are of the same variety, biblical law regards the non-kosher food to be nullified even if the kosher food is only slightly greater in quantity. In order to prevent confusion, rabbinic law established a uniform principle for nullification and requires that the quantity of kosher food always be at least sixty times as great as the quantity of non-kosher food. In the case under discussion, the kosher food was greater in quantity than the piece of non-kosher meat but it was doubtful whether or not the quantity of kosher food was sixty times as great as that of the non-kosher food. Accordingly, the rabbi responded that since the kosher food and the non-kosher foodstuffs were meat having the same taste, the requirement of a quantity of kosher food sixty times the quantity of the non-kosher food is rabbinic in nature. Hence, he concluded, the principle that matters of doubt with regard to rabbinic matters are adjudicated permissively applies.

To that R. Chaim responded that the rabbi had forgotten to take into account the fact that the gentile woman had no reason to soak and salt her meat and therefore the non-kosher food consisted not only of meat but of blood as well. Blood is distinct from meat and differs also in taste. The rabbi immediately reversed himself and conceded that since the doubt was with regard to nullification of a foodstuff in an entirely different type of food the doubt is with regard to a matter of biblical law and must be adjudicated on the side of stringency.

R. Chaim countered by informing the rabbi that he was again in error because he had overlooked the fact that the meat had already been cooked in the pot for some time and hence the blood within the meat had been cooked as well. Most early-day decisors rule that blood that has been cooked is prohibited by virtue of rabbinic decree rather than by biblical law. Hence, the matter still involved only a possible rabbinic violation. The rabbi was forced to concede error for the second time.

Thereupon, R. Chaim told him that he was in error yet again. Blood of a properly slaughtered animal is prohibited as blood and is biblically prohibited only in an uncooked state; blood of carrion [נבילה], in addition to being prohibited as blood, is prohibited as carrion as well. However, cooked and uncooked carrion are equally proscribed by biblical law. Therefore, contended R. Chaim, the matter involves a possible biblical violation of the prohibition against carrion. The rabbi confessed that the point had not occurred to him. R. Chaim then countered once again by pointing to Tosafot, Pesaḥim 22a, s.v. ve-harei dam, that establishes that blood is not included in the biblical usage of the term "animal" and hence is not to be equated with meat for purposes of the prohibition against carrion.

Even a consummate lamdan such as R. Chaim did not always immediately recognize all aspects of a problem. R. Yechiel Michal Rabinowitz, Afikei Yam, II, no. 32, reports an incident in which R. Chaim expressed regret for not having adequately analyzed the issues in a question brought before him. In a situation in which a patient afflicted with a serious illness requires meat on Shabbat and there is a choice between feeding him already available non-kosher meat or slaughtering kosher meat on Shabbat the accepted rule is to slaughter the animal in order to obtain kosher meat. Such is the accepted rule despite the fact that violation of Shabbat restrictions is a much more severe transgression than consumption of non-kosher meat. Various rationales have been advanced for the rule by early-day authorities.

Such a case arose in Brisk and, to no one's surprise, R. Chaim directed the shoḥet to slaughter on Shabbat. Subsequently, the Dayyan of Brisk, R. Simchah Zelig Reguer, recalled an item that he had earlier come upon in Givat Olam, authored by R. Tevel of Minsk. Givat Olam cites Ran who explains that, although slaughtering an animal on Shabbat constitutes a capital transgression, it involves but a single act, whereas eating a quantity of carrion, although involving only violation of a negative commandment, involves multiple infractions since consumption of each piece of meat equal to the size of an olive constitutes a separate violation. That rationale, contends Givat Olam, is cogent only if the patient is to be fed meat. If, however, the patient is to be given soup prepared from the meat, rules Givat Olam, non-kosher soup is to be preferred since consuming non-kosher soup involves only partaking of the "taste" of meat rather than of the meat itself. The prohibition of ta'am ke-ikkar, asserts Givat Olam, is rabbinic in nature and hence far less severe.

When informed of that ruling, R. Chaim reportedly responded that had that consideration been brought to his attention he would not have directed that an animal be slaughtered but would have ordered soup to be obtained from a non-Jewish restaurant. R. Chaim added the comment that the ruling of Shulḥan Arukh to the effect that the principle of ta'am ke-ikkar is biblical in nature is intended only as a stringency.

Both anecdotes involve not simply analysis of a situation in which all salient factual elements are expressly stated but contextual analysis in the sense of an ability to draw upon general savoir faire in order to identify unexpressed factors relevant to a halakhic analysis, i.e., awareness that soup rather than meat is the fare of the ill and, more obviously, that gentiles do not draw blood from meat.

Perhaps a better example is the well-known story of the person who came to R. Joseph Ber Soloveitchik of Brisk to ask if milk could be used for arba kossot. Instead of answering the question, R. Joseph Ber took a sum of money from his pocket and gave it to the person with instructions to use it to purchase wine. His wife pointed out to him that the sum proffered was far in excess of the money necessary to purchase wine. R. Joseph Ber responded with the observation that no Jew would contemplate drinking milk after eating meat. Therefore, if the person sought advice regarding use of milk for all four of thearba kossot he obviously did not have the wherewithal to buy meat for Yom Tov. A person so obviously needy requires more than the price of four cups of wine.

Such analyses require greater or lesser degrees of insight but hardly require singular intellectual prowess and hardly warrant the appellation lomdut. Of far greater intellectual significance is not identification of issues which, when pointed out, are immediately grasped by all, but delineation and proof of the nature of halakhic provisions. The nature and categorization of a halakhic provision may have a profound impact upon specific psak.

This is true not only of Halakhah but of any system of law. Numerous examples can be found in any legal system. For purposes of illustration it may be useful to take as an example a recent U.S. Supreme Court case that has received media attention. The case involved a fairly simple issue of this nature. Pursuant to provisions of law, an Independent Counsel was appointed to investigate whether crimes had been committed by members of the Executive Branch during the course of prior investigations into the 1993 dismissal of employees of the White House Travel Office. During the course of those investigations, Deputy White House Counsel Vincent Foster, Jr., met with an attorney for the purpose of obtaining legal representation. The attorney took notes during the course of the meeting. Foster committed suicide some days later. Subsequently, a Federal Grand Jury, at the request of the Independent Counsel, issued subpoenas for those notes. The attorney sought to quash the subpoenas on the grounds that the notes were protected by attorney-client privilege.

The issue before the Supreme Court in Swidler & Berlin and James Hamilton v.United States was whether the attorney-client privilege survives the death of a client. Resolution of the question depends upon the nature of the attorney-client relationship. Is the privilege rooted in, and is it an expression of, the right against self-incrimination? If so, it should not survive the death of the client since the deceased is now beyond the reach of the law. Or is the privilege designed to encourage full and frank communication between attorneys and their clients for much broader purposes that do not necessarily involve criminal liability, e.g., personal and family matters, financial matters and problems arising in the course of operating a business? Knowledge that such communications might be revealed after the client's death would have a chilling effect upon a person desirous of such advice.

The Court of Appeals ruled that posthumous revelation may be compelled in situations in which the relative importance of the communication to a particular criminal litigation is substantial. The Supreme Court found such a holding to be consistent with the notion that the attorney-client privilege is but another aspect of the privilege against self-incrimination but, upon determining that the attorney-client privilege is designed to promote an entirely different goal, reversed the Court of Appeals. The issue in Swidler could readily be formulated in Brisker terminology, i.e., as a ḥakirah concerning the nature of the attorney-client privilege.

Brisker ḥakirot of this genre are legend. A sampling of such incisive analyses is included by R. Shlomoh Yosef Zevin in the pointed vignettes of R. Chaim he presents in his characteristically keen portrayal of the scholarly personality of R. Chaim in Ishim ve-Shitot. One, actually definitively resolved much earlier by R. Akiva Eger in the latter's novellae on Oraḥ Hayyim 294, involves the following question: A person, for whatever reason, does not recite the shemoneh esreh for moza'ei Shabbat. The following morning he is required to recite the prayer twice, the first for shaḥarit and the second as tashlumin or a "make-up" for the missed evening prayer. In which of the two shemoneh esreh prayers should he include attah ḥonantanu which he did not recite the previous evening? The intuitive reaction is that attah ḥonantanu should be included in the second shemoneh esreh, i.e., the substitute for the prayer omitted the previous evening. Apparently, as reported by R. Zevin, such was the about-to-be rendered opinion of a rabbinic colleague, who lacked R. Chaim's acumen.

The correct answer, however, hinges upon an analysis of the nature of the ordination of attah ḥonantanu. Was it ordained for inclusion in the ma'ariv shemoneh esreh of moza'ei Shabbat or for inclusion in the first shemoneh esreh of the new week? If the latter is the case, then were, through some vagary of the calendar, Sunday morning to occur before Saturday evening, attah ḥonantanuwould properly be included in the Sunday morning prayer. To formulate theḥakirah is to recognize the answer. As R. Chaim and R. Akiva Eger before him realized, there is no reason to associate attah ḥonantanu with the ma'ariv prayer; there is every reason to associate it with the first shemoneh esreh recited after the conclusion of Shabbat. Accordingly, a person who did not recite shemoneh esreh on moza'ei Shabbat should include attah ḥonantanu in the very first shemoneh esreh of the new week that he does recite, viz., the firstshemoneh esreh of shaḥarit on Sunday morning. In this instance at least, the question of the ḥakham is more than half an answer; it is the entire answer.

The crucial difference between the analytic approach of rabbinic scholars and the analyses of secular jurists operating within other legal systems is that the former disclaim any originality. The endeavor involves a pristine marshalling of sources and examination of text. Expediency, policy considerations and intellectual bias dare not be permitted to intrude. Widespread ascription of the appellation "ḥiddush" to the analysis must be understood in the sense of "discovery" rather than "novellum." The purpose is not to read into the text but to make explicit that which is already inherent in the text. Such was the task of rabbinic scholars from time immemorial in all ages and in all lands. Some were simply more successful in those endeavors than others. It has been said that all of Western philosophy is but a series of footnotes to Plato. In a very real sense, all of rabbinic scholarship is but a series of footnotes to the talmudic texts, although sometimes the footnotes take the form of footnotes to footnotes authored by early-day authorities.