Nishmat - The Jeanie Schottenstein Center for Advanced Torah Study for Women

Essays

Authority and Autonomy in Pesikat HaHalacha - Kislev, 5763

Rabbi Zvi Leshem (Blobstein)

Introduction

I will begin with an anecdote.For many years I taught Halacha at various schools, including Nishmat, both for beginners, with the basic text being Mishna Brura, and for more advanced students, where we would use the research method of tracing the development of the Halacha from Talmudic sources through the latest responsa.In both the goals were threefold; to teach methodology, to foster an appreciation of the Halachic system and its logic, and to arrive at a decision regarding Halacha leMaase. Initially I would ask the students, according to whom did they think the final decision would be based. The answer would often be that the Halacha goes according to the Mishna Brura.I would then surprise them with the answer, (hopefully given with humility) that in my shiur, the final Halacha is according to me! Of course intrinsic to the study was that the students would learn to go through the process with me, to understand my analysis of the sources, how I weighed the evidence, and what factors went into my decision-making process.It was not a case of being told to blindly accept my "mysterious" rulings! I was reminded of myself going through a similar stage.I once asked my Rav, Yehoshua Reich regarding a question in Orach Chaim.When I pointed out that his answer was not in agreement with the Mishna Brura, he put me in my place with a simple "you didn't ask the Mishna Brura-you asked me!"Eventually I was able to study with him issues of "Meta-Halacha", such as klallei pesika, and came to both understand where he was coming from, and to adopt his position as my own.

I wish to address the autonomy of the posek in his relationship with prior Halachic authority. How much freedom does he have in determining the Halacha?Can he disagree with earlier authorities, even if they are greater than himself?Is his decision making determined primarily by who said what, or by his understanding of the truth, and if so, how is that truth to be defined?In this paper I will not deal with the issue of autonomy of the posek from the Halachic system, if such a thing exists, but only within that system.Nor will I deal with the autonomy of the "average Jew" in relation to the posek and to the Halacha.The usage of masculine gender in this paper is not meant to imply any gender-determined difference between women and men of equal Halachic knowledge and stature.

Two Paradigms of Halachic Decision Making

There are essentially two paradigms, although they may exist only in theory, for the reality is probably closer to a continuum, with every posek fitting in at a different place.There are a great variety of sub-positions, and no one is really purely one or the other.

The Netziv, in his introduction to his commentary to the Sheiltot, creates a dichotomy between the decision making process of the Talmud Yerushalmi, and that of the Bavli.(In his commentary on the Chumash he attributes these models to Moshe and Aaron, but I prefer to deal with rabbinic literature only).The Yerushalmi tends to make decisions based upon accepted traditions, whereas the Bavli decides based upon sefora, Halachic reasoning.The Geonim and the Rambam are seen as the continuation of the Yerushalmi's approach, with the Baalei HaTosaphot in the tradition of the Bavli.

While it is an oversimplification, we can label the two paradigms are Sefaradi and Ashkenazi.It is however important to remember that there are crossovers, i.e. Ashkenazim who poskin with Sefaradi methodology, and the opposite.In addition, as I have pointed out, most poskim are not "pure forms" and will be found somewhere on the continuum. We will now begin to trace these two paradigms from the time of the early Rishonim.Due to the vast amount of material, we will limit ourselves to a few of the examples where the poskim spoke reflexively of their own methodology.

Rav Yosef Ibn Migash (ha Ri MiGash), was a student of the Rif, teacher of the Rambam's father, and indirectly of the Rambam himself.In his Responsa, #114, he is asked if it is preferable for a community to engage a Rav who is an expert in the responsa of the Geonim (for our purposes, roughly parallel to "popular" Halachic literature today) but does not know how to study the Talmud, or one who knows the Talmud, but has not studied the responsa of the Geonim.He responds that the former is the preferred candidate, for he who attempts to decide the Halacha based upon the Talmud is more likely to err, whereas the one who bases his decisions upon the Geonim even though he does not understand the background, is nonetheless relying upon proper authority.He does not completely forbid the latter, but expresses great skepticism regarding the likelihood of people "today" having that ability.It is therefore preferable to "play it safe", not taking risks when it comes to determining the Halacha, the expression of God's will. Implicitly we can see that the most important aspect of pesika is "getting it right", for which, the Talmud is the ultimate authority (on that point both schools are in agreement).This clearly takes precedence over the posek's own "autonomy" or "creativity".This position seems imminently reasonable, and the challenge will be to understand the theoretical underpinnings of the Ashkenazi opinion.

We now come to the complicated case of the Rambam, who is within the tradition of the Ri MiGash.In the introduction to the Mishna Tora he writes;

"So that no one will require any other work of Jewish Law.Rather, this work will collect the entire Oral Law….Therefore I have called it Mishna Tora (the Second Tora), for one can read the Written Law first, and then this work, and he will know the entire Oral Law, without needing any other book in between."

We will not enter the debate over the educational ramifications pertaining to the place of Talmud in the curriculum, but will restrict ourselves to the issue of Halachic decision making.Before attempting to analyze the Rambam's own position in light of the two paradigms suggested above, it will be instructive to note both the attack upon, and the defense of, his words.The Raavad, (R. Avraham Ben David, a contemporary of the Rambam from Provence), attacks the Rambam's entire methodology:

"He did not help, for he abandoned the accepted methodology, and did not bring support for his words….Why should I give up my position for that of this author?If the other position is held by someone greater than myself, fine, but if not, why should I give up my own position?Furthermore, there are cases where the Geonim disagreed, and this author chose one position over the other.Why should I rely upon his choice?"

The Raavad poses three questions.Firstly, the Rambam, unlike earlier Halachic authors, neither quoted his Talmudic sources, not did he quote dissenting opinions.If so, his work is essentially useless.It does not contain within it the information through which it can be evaluated.Without the ability to analyze the Rambam's sources, there is no way to validate his findings, and therefore no justification for accepting them.Secondly, by not quoting his sources, he gives no indication of what authority he is relying upon, other than his own judgment.Thus, even if the later posek wished to rely upon prior authority he has none, other than the Rambam himself.And thirdly, in cases where two earlier traditions existed, since the Rambam did not share with us his own decision making criteria, we are in no position to evaluate his judgment.The Raavad's position is clearly within what we are referring to as the Ashkenazi position.He is unwilling to accept a Halachic decision unless he can validate it by his own reasoning.In order to do so, he needs first hand access to the Talmudic sources upon which the decision has been based, or at the very least, information regarding who said what in the previous generations.The fact that the Rambam himself said something is irrelevant to the Raavad, who cannot accept his decision as being authoritative, since it has not been proven.

The position of the Rambam himself is a bit more complicated.On the one hand, he seems to be asking his reader to take his word for it, and in that sense sounds like a "Sefardi" posek.On the other hand, in his own decision making process, he displays much independence in deciding the law based on his own criteria, (not spelled out for us).It would therefore seem that he could be classified as an "Ashkenazi" in his own work as a posek, but one who urged its acceptance from the posture of a Sefaradi.Rav Yosef Karo (author of the Shulchan Aruch), defends the Rambam.In his Kesef Mishna, he writes:

"Why should the Rambam have written in the style of those who preceded him?Since he usually agrees with the Rif, it what would he have added?He came to write the Halacha in clear and concise language…and a later authority can rely upon him.And if there will be a great authority who will not wish to rely upon him until he analyzes the question for himself, who is stopping him?...And if he is in a hurry he can rely upon the Rambam….knowing the Rambam's own position is not a small matter."

Rav Yosef Caro, whose own methodology we shall analyze shortly, clearly comes down on the "Sefardi" side, i.e. accepting the possibility of accepting prior Halachic authority, as a legitimate source for making a decision.

The clearest early exponent of the Ashkenazi position is the Rosh, Rav Asher ben Yechial.We will examine two of his writings.In his Responsa, #33:9, he prohibits making a decision on the basis of the Mishna Tora:

"All of those who decide from the Rambam without prior knowledge of the Talmudic sources are in error, and come to permit the prohibited and prohibit the permitted….No one should rely upon his rulings unless he can find a proof for them in the Gamara."

The Rosh here makes two points.Firstly, it is not possible to properly understand the Rambam without knowledge of the Gamara.Therefore the posek is likely to err.Secondly, it is not permissible to rely upon the authority of the Rambam's own judgment.Comparing this with the position of the Ri MiGash that we began with, we have clearly come full circle.There, one was not permitted to make a judgment based upon the Talmud, lest he err.Rather, he was to rely upon the authority of the Geonim, who had already done the work.Here, one is not permitted to make a decision without the Talmud, lest one errs, and it is forbidden to accept a position just because it comes from an authoritative source.The Rosh's position would appear puzzling in at least one crucial point.Most people would agree that the Talmud is a much more difficult text than the Rambam, and therefore it would seem more likely that one would make a mistake in trying to poskin from the Gamara!The answer is found in the Rosh's commentary to the Talmud, Sanhedrin, in chapter 4:6:

"The judge in any given time may disagree with earlier authority since anything which is not stated in the Talmud…one can disagree with, and even disagree with the Geonim….and in a case where two greats have disagreed; the judge may not decide arbitrarily to follow one of them.If he does so, it is a false judgment, (din sheker). Rather if he is a great scholar…and knows how to decide, he has permission.And even if a previous authority has made a certain decision, the later authority has the right to disprove his words and rule against him."

The Rosh's position is based upon an understanding that the Talmud is the only absolutely binding canon for the Halachic decision.Any later authority is open to question, as the ultimate arbitrator of Halachic truth is the Talmudic text, itself subject to numerous interpretations.The Rosh however, goes further than to give permission for a posek to question earlier decisions, he demands it!Anything less is falsehood!Here the qualified posek, is enjoined to exercise his autonomy.Similar to the critique of the Raavad on the Rambam, the posek may not rely upon early authority unless he is convinced that his decision is true.Returning to my own Halacha class, the answer that the Halacha is decided according to me, is in fact the only legitimate position. It would have been forbidden for me to "take the easy way out", and give the Mishna Brura's answer as final simply because he is the Mishna Brura. (This assumes that I have the proper credentials and stature.Nor does this take into account other aspects of Halachic decision making, such as the power of Minhag, custom, which will be one ingredient of the posek's thought process in making a decision.)

These Ashkenazi and Sefardi paradigms can be traced throughout the medieval period and to our own day.In the Medieval period we should mention the methodology of Rav Yosef Caro, author of the Shulchan Aruch.In the introduction to his commentary on the Tur, the Beit Yosef, he laments the difficulty of analyzing all of the opinions of the early authorities in light of the Talmud, in order to arrive at the "truth".He therefore adopts the ingenious method of deciding each question by a two out of three vote, based upon the three greatest poskim of all time (in his estimation), the Rif, the Rambam, and the Rosh.This methodology was attacked by the most vocal of his critics, Rav Shlomo Luria, the Maharshal, on two main grounds.In his Yam Shel Shlomo, the Maharshal takes issue with Rav Yosef Karo's choice of the three "Pillars" of the Law.He argues against the exclusion of the great Ashkenazi authorities, such as Rashi and Rabbenu Tam.This argument is less pertinent to our discussion.His other point, however, is very relevant.He questions the entire basis of Halachic decisions being made on the basis of any sort of numerical scheme, (The Talmudic principle of Halacha following the majority is relevant only in the case of face to face discussions in the Sanhedrin or a bet-din.), and argues forcefully that the posek must base his decisions on his own original analysis of the relevant Talmudic sources.

Before discussing contemporary authorities, let us make one important observation regarding the "Ashkenazi" approach.While it is easy to understand the "Sefardi" approach of "playing it safe" in relation to fulfilling the word of God, the "Ashkenazi" view seems difficult to fathom.This search for the truth seems to be a very risky venture.If we really believe that the Halacha represents the will of HaShem, how dare we take chances of this sort?This question becomes even more acute when seen in light of its more radical formulations.For example, the Maharal of Prague writes in Netiv HaTora, that:

"It is proper that the posek decide from the Talmud, and even though there is the possibility that he will not …give a ruling in accordance with the truth, nonetheless the only criterion is what he understands based upon the Talmud, and even when his understanding leads him astray he is still beloved to HaShem…and he is better than someone who decides from a Code without understanding, for he is like a blind man stumbling along the way."

Here we find the polar opposite of the words of the Ri MiGash.It is preferable (!) to decide based upon the Talmud, even if in error, than to "get it right" from the Codes!How this position can be squared with the religious imperative to serve God through the meticulous fulfillment of the minutia of Halacha is a serious challenge.While it is beyond the scope of this paper to analyze this fascinating issue, suffice it to say, that in our opinion, it must be understood in the light of mystical notions regarding the nature of the Tora She Baal Peh, which are already found in rabbinic literature, and later developed by medieval thinkers such as the Maharal, and in modern times by the Chassidic Rebbe, Rav Zaddok HaKohen, and others.

In the contemporary period, the two greatest representatives of these approaches have been Rav Ovadia Yosef on the one hand, and the late Rav Moshe Feinstein on the other.Rav Ovadia insists on complete fidelity to the rulings of the Shulchan Aruch.One quote from Responsa Yechava Daat will suffice for our purposes,

"Since we have accepted the rulings of Maran ("our master", a common Sefardi appellation for Rav Yosef Karo, telling in and of itself), we will follow him even if the Rama and another thousand similar authorities disagree with him!"(Yechava Daat, volume one, Klallai HaShulchan Aruch).

The truth is that Rav Ovadia does occasionally disagree with the Shulchan Aruch.These cases are, however, very rare, and a somewhat apologetic tone often accompanies the Halachic analysis.In general his responsa are typified by a lengthy summary of all previous opinions on the question at hand, and it is clear that prior authority is of preeminent importance.

Rav Moshe Feinstein represents the other extreme.His Responsa Igrot Moshe are noted by their creative analysis of the relevant Talmudic passages, often in almost complete absence of reference to earlier authority, and especially of more recent deciders.He has no problem disagreeing with them, and sees it as his duty to decide according to the truth as he sees it:

"Of course the posek is obligated to determine the law, and decide accordingly, and not merely to give a ruling based upon what is written in another book…and even if this involves disagreeing with another authority that preceded him, so what, he is obligated to go against the later authorities, and sometimes even against the medieval authorities."(Igrot Moshe, Yora Daya, 1:101).

In another responsa, he explicitly encourages others to disagree with the rulings of the greatest authorities of the generation (no doubt referring to himself as well), so long as this is done respectfully.

Conclusions

The posek's relationship to prior authority, versus autonomy based upon Talmudic reasoning is central to his self-awareness.Even though these two paradigms are in fact pure forms that do not actually exist, they do raise certain educational challenges.One issue is the training of rabbanim.To what extent are these issues studied and are rabbinical students helped to forge a personal identity within the range of options described above? This will no doubt be affected as well by the student's relationship with his own Rav, the latter's position on this issue, and to the extent that he encourages or discourages his student from adopting an autonomous approach.Needless to say, one would not expect to find the same approach in Ashkenazi as in Sefardi Yeshivot.

In the teaching of Halacha to less advanced students, it is important, while clarifying the teacher's own perspective, to stress as well, the differences between teacher and student.Even a highly autonomous Rav, and one who wishes to instill such an approach in his students, must nonetheless make them aware of the vast chasm that exists between their current level of knowledge and Halachic training, and his own. Hence, their autonomous prerogatives, at least for the present, are much more limited.For just as one who is properly trained has the responsibility to make Halachic judgments, so is one not yet trained enjoined from them.Acceptance of authority, at this stage, would seem to be the prerequisite to autonomy later on.


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