May it be Thy will, O Lord my God, that no mishap occur through me and that I not err in a matter of Halakhah … that I not declare the impure pure or the pure impure.
The words cited above are the text of the prayer that R. Neḥunia ben ha-Kaneh was wont to utter upon entering the House of Study. Halakhah is an intellectual discipline but its pursuit is accompanied by awesome moral and religious responsibility. Halakhic pronouncements should bear a Surgeon General's warning that they may be dangerous to spiritual health and well-being. The onus of error is entirely analogous to that which in the realm of the physical accompanies the granting of a seal of approval or the issuance of a public warning of impending danger. An erroneous endorsement can easily lead to serious danger; an unwarranted interdiction can wreak havoc with human lives. R. Neḥunia ben ha-Kaneh well understood the awesome nature of every halakhic determination and the need for divine assistance in avoiding error. The prayer recorded in the Gemara is a poignant reminder for posterity that halakhic matters must be regarded with at least the same seriousness that attends the mundane. In its most fundamental sense yir'at shamayim, fear of Heaven, is the reflection of a conviction that halakhic error or laxity is as dangerous to the soul as other forms of error may be to the body.
In the absence of fear of Heaven, fulfillment of mizvot is, in essence, a matter of cultural expression. Folk practices may be valued, but they are unlikely to become all-consuming. Chauvinism may dictate enthusiastic participation in ceremonies and rituals but will hardly command concern with minutiae and details. Fear of Heaven is the hallmark that serves to distinguish between cultural observance and religious observance; it is the factor that serves to separate those sectors of our community that recognize the centrality of Halakhah and its study from those that fail to accord Halakhah such primacy. For the latter, mizvot are a matter of taste and preference and even of personal satisfaction; for the former, they are a matter of spiritual life and health. For the former, thirst for knowledge is never quenched.
It is that thirst that in recent years has elicited a plethora of publications, both in Hebrew and in the vernacular, devoted to matters of Halakhah. With the appearance of the fourth volume in this series it is perhaps time to examine the goals that works of this genre are designed to achieve and the effectiveness of the first three volumes in meeting those goals.
An author is often motivated as much by a desire to write for himself as by a desire to write for the reader. This is true not only in the sense of "More than the calf wishes to suckle, the cow desires to nurse" (Pesaḥim 112a) but also in an even more rudimentary sense. A colleague recently remarked, "We write in order to forget." To my ears, the comment initially seemed entirely inapt, if not nonsensical. But, upon reflection, the comment strikes me as an observation that serves to explain a phenomenon that has long puzzled me. I have often noticed that, after delivering a shi'ur (talmudic discourse), I am unable to concentrate with single-minded attention upon other matters. I tend to be unresponsive and distracted until the task of committing to writing any novellae developed in the course of the presentation has been completed. Once the material has been transcribed, the mind is again free to wander without fear that some insight may be forgotten and hence forever lost. In some strange way that perhaps a psychologist might be able to explain, fear of forgetting generates a tension that itself becomes an aide-mémoire. Experience teaches that, unfortunately, dissipation of the tension actually precipitates forgetfulness. The enduring nature of the written word serves to compensate for the fallibility of the human mind.
The same is assuredly true for the marshalling of sources dealing with any halakhic topic. References are culled, precedents discovered, analogies formulated and deductions made, but with the distinct danger that the process may not be recalled or even comprehensively replicated at some future time. At the very least, transcription serves to obviate the need for a time-consuming repetition of the entire process. Thus, the published volume becomes a reference work for the writer who becomes his own reader. Works such as this are designed primarily to identify sources and arguments and to make them accessible to one and all. The purpose of such works is to draw attention to particular problems, to isolate component issues and to indicate possible modes of resolution. Whatever else is accomplished in the process, although welcome, is secondary.
This much is certain: There is nothing in these volumes—or in others of this genre—that is innovative in the true sense of that term, just as there is nothing innovative in a treatise on physics. Both disciplines have as their subject matter a closed, immutable system of law—physical in the case of the latter, regulative in the case of the former. To be sure, the theoretical physicist may propose a previously unexpounded thesis in an attempt to explain the operation of the laws of nature; so also may a rosh yeshivah develop conceptual novellae in the course of an endeavor to explicate the meaning of the revealed law. In physics, a newly developed hypothesis may have a predictive value with regard to empirical phenomena; likewise, talmudic novellae may yield heretofore unarticulated halakhic propositions. But both in physics and in Halakhah the outgrowth is likely to be marginal to each of the systems viewed in its entirety. In each case the thesis must be tested against the totality of the system. Generally, contradiction by other aspects of the system is tantamount to demonstration of an inherent fallacy in the thesis.
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.
An anecdote that is perhaps apocryphal is related concerning one of the eminent rabbinic scholars of recent years, an individual renowned for his prodigious memory and encyclopedic knowledge. In the course of a discussion concerning a particular halakhic problem a student pointed out that a lenient view was to be found in a certain halakhic source. "To be sure, there is a lenient view," responded the scholar. "However, it is not necessarily compelling. One can usually find a lenient view if one searches determinedly. But one must be wary of ruling in accordance with such non-normative views. Indeed, if you knew the contents of as many responsa as do I and accepted each and every permissive view recorded in those responsa," he concluded, "you would in the end live as a goy," i.e., be entirely free of the yoke of commandments.
Leniencies and permissive rulings exist in abundance. The point is to seek neither the stringent nor the lenient, but the view that is most authoritative. Moreover, there usually is a view which 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.
Serious students of Halakhah trained in its methodology will regard the aforesaid as axiomatic and will but wonder why these points are being belabored. To the uninstructed—or better, the incompletely instructed—they are likely to be a source of puzzlement. In every age there are certain views that are "politically correct" and certain views that are "politically incorrect." In our age, men and women of good will, intelligence, of a liberal bent and unafraid of the modern world, are presumed to share a common Weltanschauung. That Halakhah is not always congruent with such views comes as something of a shock to some. It is not too surprising that, quite frequently, the reaction is to attack the messenger rather than the message. All too often there is a failure to recognize that a student of Halakhah—or of any intellectual discipline—is not autonomous in arriving at determinations drawn from a corpus of material accepted as authoritative. There are areas in which free will is simply not operational.
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.
Halakhah 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.1See, for example, Ḥovot ha-Levavot, Sha‘ar Avodat ha-Elokim, chap. 4.
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.
Halakhah differs from other systems of law in that it does not permit policy considerations to adjudicate between competing theories or precedents. Nevertheless, in terms of public guidance, rabbinic authorities often do counsel, and correctly so, on the basis of what can best be described as "policy." Thus, the Gemara, Hullin 15a, reports that Rav accepted as normative a certain permissive tannaitic view concerning the permissibility of partkaing of food cooked on Shabbat in ignorance of the prohibited nature of the act and instructed his students accordingly, while in public discussions he promulgated the stricter view because of the presence of the ignorant masses.2See also, Tosafot, Baba Kamma 99b, who similarly explain that Rav forbade an ignorant person to eat the meat of an animal that had been slaughtered by severance of the uppermost ring of the windpipe despite the fact that Rav espoused the permissive view that accepts such slaughter as proper. Tosafot assert that Rav counseled in accordance with the stringent view because he feared that the ignorant person would fail to appreciate the distinction between the uppermost ring and lower rings and consequently regard incision in the lower rings of the trachea as also being acceptable. Similarly, the Gemara, Shabbat 139a, reports that the inhabitants of a place known as Bashkar requested halakhic rulings concerning a number of different matters and received negative replies despite the fact that there were authoritative bases for permissive responses. One query regarded spreading a canopy over a bed on Shabbat. They were told, "We have investigated all ways of [erecting] a canopy but we did not find any way in which it is permissible" despite the fact that an expedient was readily available. The reason given for the negative response was that the inhabitants of Bashkar "were not students of Torah." In effect, perfectly acceptable forms of activity on Shabbat were forbidden because the inhabitants of that city were poorly schooled in the laws of the Torah. Hence, they were likely to misapply a permissive ruling and incorrectly perceive other forbidden activities as halakhically sanctioned.3Similarly, the Gemara, Avodah Zarah 59a, relates that R. Yoḥanan forbade the people of Gabla to eat certain vegetables preapred by gentiles despite the fact that the food in question was perfectly permissible. Again, the reason given is that the people of Gabla “were not students of Torah” and might be led to believe that other foods banned by rabbinic decree were permitted as well.
Indeed, such considerations often led to formal rabbinic legislation designed to establish a fence around that which is biblically prohibited. The Mishnah, Shabbat 153a, indicates the manner in which a wayfarer who fails to reach his destination before the advent of Shabbat may safeguard his wallet and other valuables. Transporting an object a distance less than four cubits wholly within the public domain involves no infraction. Therefore, the Gemara, Shabbat 153b, in its discussion of the Mishnah, questions why the Mishnah does not advise a person to employ the simple expedient of transporting the valuables for a distance of less than four cubits, stopping or placing the object on the ground4Some authorities advise the person to sit or to place the object on the ground; others deem stopping to be sufficient. See Mishnah Berurah 266:18. and then repeating the process as many times as necessary until reaching a secure place. Citing the verse "Honor of God [requires] concealing a matter" (Proverbs 25:2), the Gemara declares that this information was purposely suppressed lest a person in such a situation transport the object over a distance greater than that which is, in fact, permitted. The Gemara further indicates that, in this instance, because of a fear of actual desecration of the Sabbath, the Sages promulgated a formal ordinance prohibiting the carrying of valuables in a public thoroughfare for a distance of less than four cubits when another expedient is available. In a similar vein, the Gemara, Shabbat 115a, reports that, upon becoming aware of the fact that his family was engaging in a certain practice in an improper manner, Rabbah informed members of his household that R. Yoḥanan had forbidden the practice entirely.5See Oraḥ Meisharim, no. 9.
In the case of the inhabitants of Bashkar no formal rabbinic ban was enacted, but the selfsame policy considerations dictated restrictive counsel. Concern for the wayward, desire to promote a lifestyle likely to foster enhanced religious observance and spiritual sensitivity, as well as promotion of physical and social welfare contribute to what in some circles is termed "da'at Torah," i.e., policy considerations reflected in, and dictated by, the corpus of Torah in its entirety. While Halakhah is normative and unchanging, matters of policy are undoubtedly situational and may vary with changing mores and perceptions.
Shakh, Yoreh De'ah 242, addenda, sec. 9, declares that when a decisor rules that something is forbidden, not because he is absolutely certain that such is the case, but because he is unable to decide between two conflicting views or because he regards the restrictive ruling as representing an accepted stringency beyond the normative Halakhah, he must so inform his interlocutor. Failure to do so may lead to confusion and, on occasion, to unacceptable leniencies in consequential ramifications stemming from a basically restrictive rule. Unfortunately or otherwise, it has become the practice in some highly erudite and respected rabbinic circles for halakhic authorities to issue pronouncements decrying certain practices without indicating that those statements are prompted by policy concerns rather than by immutable halakhic standards. This has given rise, in the eyes of some, to the entirely erroneous perception that Halakhah itself is policy-driven and hence, in the final analysis, subjective in nature.
There is a clear need to distinguish between matters of Halakhah and matters of policy. By the same token, it must be recognized that formulation of public policy with regard to such matters is properly within the province of masters of Halakhah. It is they who are most sensitive to the need to assure the integrity of Halakhah and it is they who are best able properly to understand and interpret the values and ideals that Halakhah is designed to foster.
In any such enterprise, issues must be presented within the framework of Halakhah as an autonomous discipline with its own sources, its own dialectic and its own values. The values and mores of other disciplines dare not be permitted to intrude. It is not sufficient that "politically correct" views of contemporary society not be accepted as dispositive; they must be given no deference.
The halakhic enterprise, of necessity, proceeds without reference or openness to, much less acceptance or rejection of, modernity. Modernity is irrelevant to the formulation of halakhic determinations. Torah is timeless and eternal. Modern insights may help us to understand and appreciate both principles and minutiae of Halakhah in ways heretofore unknown, but they do not at all effect particular determinations of Halakhah. Strides made in the modern age have facilitated observance of mizvot with ease and comfort. Although modernity has opened new vistas it has, at the same time, created new problems. Modernity has also given rise to social as well as technological phenomena unknown in days gone by. Those problems and those phenomena must be appreciated by a halakhic decisor functioning in the modern age, but his decisions are made within a transcendental framework in which the term "modernity" has no cognitive meaning.
The social, political and economic upheavals of the past century resulted in displacement of entire Jewish communities. An entire way of life was uprooted. Adaptation to new habitats became a matter of physical and economic necessity. Acculturation to the mores of a new society was also widely perceived as a necessary means of retaining the religious identity and loyalty of a generation reared under changed conditions. The task of finding a way to accept the advantages proffered by a modern and open society without falling prey to alien ideological blandishments represented a formidable challenge. Unfortunately, during its period of nascent development, American Jewry did not rise to this challenge. For a variety of reasons that, given the circumstances of the time, are themselves quite understandable, the Jewish community did not develop either the leadership or the institutions necessary to cope with the multifaceted problems faced by the vast number of immigrants that flocked to these shores. As a result, the modest success that was achieved can only be regarded as wondrous.
Partially as a result of improved economic conditions, partially as a result of a process of communal maturation and partially as a result of an influx of immigrants to whom a traditional way of life was still a living memory, the spiritual health of the American Jewish community has taken a marked turn for the better during the post-World War II period. We have, however, suffered an irretrievable loss—not simply in terms of the number that have been lost through assimilation and disaffection—but also in terms of the quality of Jewish life that has been preserved. The decades of confrontation and compromise constitute a breach in the transmission of a positive value system from one generation to the next. The breach in the transmission of the heritage of Judaism, Heaven be praised, was far from total—but even a partial breach makes it necessary to scrutinize accepted mores through the crucible of authenticity. All ba'alei teshuvah, as it is now fashionable to term those who have found Judaism for the first time, are disadvantaged by virtue of not having had the benefit of the mesorah of Judaism in their formative years. They must not only learn new lessons, but unlearn old ones; they must not only assimilate new values, but shed false ones. All of us who were raised on these shores are "ba'alei teshuvah" in that we have been continually forced to overcome the pervasive and corrosive ideologies that insidiously made their way into our own camp. As a community, we have made great strides in "restoring the crown to its ancient [glory]," but the task is far from complete.
Our age has been phenomenally successful in rearing a generation of observant Jews. It has not had the same measure of success in transmitting the yir'at shamayim of past generations. As a result, there are in our community significant numbers who may be described as culturally observant Jews rather than as religiously observant Jews. Integral to the commitment for which we must strive is recognition and acceptance of the divine nature of the Halakhah in its entirety and its status as a self-contained value system. To those committed to modernity in all its guises, such notions are truly threatening. That threat must be met and countered. Denying its existence results only in arrested intellectual and spiritual development. These volumes were not intentionally designed to underscore the threat or to negate the premises upon which it is based. But if, for some, that has been the effect, that purpose alone would justify and ennoble the endeavor.
Indeed, matters of Halakhah must be presented with accuracy, clarity and comprehensiveness and dare not be tailored to predilections of the audience. However, no value is discrete and no teaching stands alone. All individual values are part of a system of values and all particular teachings are part of an all-inclusive corpus. In concentration upon details, the whole may not be adequately perceived just as, at times, the forest may not be seen because of the trees. Thus, almost paradoxically, the panoramic beauty of Torah may, at times, not be fully revealed when viewed through the prism of halakhic dialectic. The author of a work such as this seeks not simply to convey information but also to cultivate appreciation. For that reason the prayer of R. Neḥunia ben ha-Kaneh, in itself, does not suffice. To the words of that prayer I add a paraphrase of the words of the blessing recited each morning: May the words of Torah always be sweet to our mouths and to the mouths of all of Israel; may we and our children and our children's children, as well as the children of the entire people of Israel, ever be students of Torah for its own sake.