Introduction מבוא
1 א

Lomdut and Psak: Theoretical Analysis and Halakhic Decision-Making

2 ב

"If you walk in My statutes and observe My commandments…." When [Scripture] states, "and observe My commandments" [observance of] commandments is denoted. How then will I fulfill "If you walk in My statutes?" That you travail in [the study of] Torah.

3 ג

SIFRA, LEVITICUS 26:3

4 ד

As I have written elsewhere, to my mind, halakhic decision-making is primarily a science but it is also an art.1Contemporary Halakhic Problems, IV (New York, 1995), xiv. See also this writer’s “Is There an Ethic Beyond Halakhah?” Studies in Jewish Philosophy, ed. Norbert M. Samuelson (Lanham, 1987), p. 543. 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.

5 ה

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.2See, for example, R. Yonatan Eybeschutz, Urim ve-Tumim, Kiẓur Tokpo Kohen, sec. 124, who states that a defendant cannot claim to rely upon an opinion ignored by Shulḥan Arukh and Rema because their rulings were guided by the Divine Spirit.

6 ו

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.

7 ז

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.3See, for example, Ḥovot ha-Levavot, Sha’ar Avodat ha-Elokim, chap. 4.

8 ח

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.4See Contemporary Halakhic Problems, IV, xiii-xv.

9 ט

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.

10 י

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.

11 יא

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.5Although the matter is not quoted by any of the poskim it seems to me that a person intellectually convinced of the correctness of his own position may not himself inform an interlocutor that another more highly regarded authority is of an opposite view, but must refer the individual to that authority directly. There is a talmudic controversy with regard to whether the taste of the gid ha-nasheh is sufficiently pungent so that, if cooked with other food, it renders such food non-kosher. R. Ammi regarded such food to be prohibited. Nevertheless, the Gemara, Ḥullin 99b, reports that when a person brought such a matter before R. Ammi he would refer the person to R. Yitzchak ben Ḥalov who would rule permissively. Quite obviously, R. Ammi regarded R. Yitzchak ben Ḥalov as at least his equal and as a person whose opinion might be relied upon. Why did he not simply inform the interlocutor that, although in his own opinion the food is not permissible, the interlocutor might in good conscience rely upon the lenient view of R. Yitzchak ben Ḥalov?
The talmudic narrative seems to reflect two distinct canons of psak: (1) One decisor may refer with equanimity to a person whose antithetical view is within the parameters of elu ve-elu divrei Elokim ḥayyim. (2) The same decisor dare not himself utter the word “muttar” in the name of another unless he believes that to be true. Perhaps it is the phrase “zekenekha ve-yomru lakh” (Deut. 32:7) that requires the zaken to announce his own opinion rather than the opinion of another. Cf., however, R. Shlomoh Zalman Auerbach, Minḥat Shlomoh, I, 44, who, while not directly contradicting the foregoing, opines that in cases of controversy regarding a matter of rabbinic prohibition, the posek must inform the interlocutor of the dispute and of the principle that the permissive view may be relied upon. If that is correct, why then, according to the authorities who maintain that the prohibition of ta‘am ke-ikkar is rabbinic in nature, did R. Ammi not himself inform the people in question of the opinion of R. Yitzchak ben Ḥalov and advise them that safek de-rabbanan le-kula?
The same point seems to be reflected in the narrative recorded in Ḥullin 48a regarding the kashrut of an animal whose lungs had areas filled with pus. The Gemara relates that when a case of that nature came before R. Yoḥanan he would send it to R. Judah ben Simeon who would rule that it was permitted. Rashi comments that R. Yoḥanan himself maintained that the animal was not kosher but declined to forbid its use because he was not in possession of a received tradition to that effect. But, if R. Judah ben Simeon’s opinion could be relied upon why did R. Yoḥanan himself not make that information available?
More cryptic but equally germane is the narrative recorded by the Gemara, Ḥullin 44b. An animal with a severed trachea was brought before Rav. Rav proceeded to examine the outer circumference of the trachea with a view to pronouncing the animal non-kosher if the greater part of the outer circumference had not remained intact. R. Kahana and R. Assi objected: “But have you not taught us, Master, to examine it on the basis of the greater part of the hollow [i.e., the inner circumference]?” Thereupon, Rav sent the matter to Rabbah the son of Bar Ḥana who examined the inner part of the circumference and, finding the greater portion to be intact, ruled the animal to be kosher. In this case, Rav was apparently prepared to rule in accordance with the stricter view but, when reminded by his students of his own earlier held permissive view, refused to state that the lenient view might be relied upon and instead put the person consulting him to the trouble of himself seeking out the scholar who would rule permissively.

12 יב

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.

13 יג

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."6Berakhot 7b.

14 יד

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 the Shulḥan 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.7See Maharal of Prague, Derekh Ḥayyim, Avot 6:6.

15 טו

Maharsha, Hiddushei Aggadot, Sotah 22a, remonstrated:

16 טז

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.

17 יז

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

18 יח

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.

19 יט

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.8See R. Abraham Elimelech Kornfein, Shimmushah shel Hora’ah (Jerusalem, 5754), p. xii.

20 כ

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.9Indeed, Rabbi Kornfein’s Shimmushah shel Hora’ah, cited supra, note 8, is designed to serve as a pedagogic tool to train the student in issue-spotting. Actual questions and hypothetical fact patterns are presented and analyzed in terms of the salient issues that might be addressed in order to arrive at a determinant psak. For purposes of illustration one simple example will suffice: A non-kosher chicken leg was cooked in a cauldron of soup together with other kosher chicken legs. The total quantity of soup and chicken was only fifty-five times greater than the non-kosher chicken leg. The intuitive response of a neophyte student is that, since the permitted foodstuffs are less than sixty times greater than the non-kosher piece of chicken, the contents of the pot are non-kosher. However, upon proper analysis, the opposite is the case. Hard, inedible bones of a non-kosher animal, when cooked with kosher food, do not render the kosher food impermissible. However, since bones are absorbent, the bones of a kosher animal (and, for some authorities, even of the non-kosher animal) may be included as part of the aggregate necessary to nullify non-kosher food. Accordingly, since only the meat of the non-kosher chicken need be considered, a quantity of food fifty-five times greater than the entire chicken leg is ultimately more than sixty times greater than the non-kosher meat alone. See Shimmushah shel Hora’ah, no. 13.

21 כא

"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 of lomdut 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.10A similar anecdote, but minus any confrontation or discussion of analytic method, is presented by R. Shimon Yosef Miller in his recently published Uvdot ve-Hanhagot le-Bet Brisk (Jerusalem, 5759), I, 217-218. The source of that anecdote is apparently a report of R. Menachem Mendel Chen published in Moriah, vol. 4, no. 3-4 (Sivan-Tammuz 5732), p. 9.

22 כב

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 upon psak 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.

23 כג

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.

24 כד

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.

25 כה

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.

26 כו

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, 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.11In the version recorded in Moriah and in Uvdot ve-Hanhagot, supra, note 10, R. Chaim carried the “issue-spotting” one step further. In that report the non-kosher meat was not carrion but a kosher-slaughtered animal found to be a tereifah. R. Chaim incisively distinguished between neveilah and tereifah and declared the blood of a tereifah (and presumably also of a member of a non-kosher “unclean” species) to be biblically prohibited. Although, as Tosafot, Pesaḥim 22a, rule, the blood of an animal is not encompassed in biblical references to an animal, the blood is nevertheless the yoẓei of the animal, i.e., it is produced by the animal. Biblical law posits a specific prohibition banning the yoẓei or product emitted by a forbidden substance. Accordingly, since the blood of an animal is a product of the animal, the blood produced by an animal that has already become a tereifah is biblically prohibited as yoẓei and hence any doubt with regard to nullification of the blood of a tereifah is a doubt with regard to a biblical infraction. The same is not true with regard to blood of carrion since the blood, having been produced while the animal was still alive, is not the yoẓei of a neveilah. Accordingly, in the case of the meat of a tereifah that became mixed with kosher meat, R. Chaim concluded that, because of the presence of blood biblically prohibited as yoẓei, the matter involved a doubt with regard to a possible biblical infraction and hence he ruled that the meat was forbidden.

27 כז

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.12See, inter alia, Rosh, Yoma 9:14; Teshuvot ha-Rashba, no. 689; and Bet Yosef, Oraḥ Ḥayyim 328.

28 כח

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.

29 כט

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.

30 ל

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.

31 לא

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 the arba 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.

32 לב

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.

33 לג

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.

34 לד

The issue before the Supreme Court in Swidler & Berlin and James Hamilton v. United States13118 S.Ct. 2081 (1998). 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.

35 לה

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.

36 לו

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.142nd ed. (Jerusalem, 5718), p. 61. See infra, note 29. See also Ḥiddushei ha-Graḥ al ha-Shas (Jerusalem, 5729), p. 1 and Ḥiddushei ha-Graḥ ve-ha-Griz al ha-Shas (n.d.), p. 1. 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.15Indeed, Mishnah Berurah 294:2 rules contra the position of R. Chaim. It is surprising that Mishnah Berurah either overlooked or ignored the comment of R. Akiva Eger, particularly since there is no other authority who unequivocally rules to the contrary. For the rule in the case of a person who in the interim has recited havdalah over wine, see the conflicting sources cited by Bi’ur Halakhah, ad locum, and Mishnah Berurah 108:33.
Members of the Soloveitchik family recount a slightly different version of this incident. According to that version, R. Chaim himself instinctively responded that attah ḥonantanu should be recited in the second shemoneh esreh but immediately reversed himself. They also report that both R. Naphtali Zevi Judah Berlin and R. Raphael Shapiro, although impressed by R. Chaim’s novel insight in this matter, disagreed with his ruling.

37 לז

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 ḥonantanu would properly be included in the Sunday morning prayer. To formulate the ḥakirah is to recognize the answer. As R. Chaim and R. Akiva Eger before him16This is but one instance in which a “Brisker” ruling can be traced to earlier scholars. The analytic method was not invented in Lithuania but oft-times a much sharper presentation was formulated in those circles, as in this case the quixotic hypothetical of Sunday morning occurring before Saturday evening. Once, in the course of a yahrẓeit shi‘ur, Rabbi J. B. Soloveitchik presented R. Chaim’s analysis of the nature of a shetar and then pointed out that the analysis had actually been formulated much earlier by the Keẓot ha-Ḥoshen. Rabbi Soloveitchik concluded the citation with the pithy observation: “Nor der Keẓos hot es gezokt ohn hendt und ohn fiss.” 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 first shemoneh 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.

38 לח

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."17Elsewhere (Contemporary Halakhic Problems, IV, xiii), I have commented that there is nothing innovative in Halakhah in the true sense of that term, just as there is nothing inherently innovative in 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. 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.

39 לט

Examples illustrating this point are virtually inexhaustable. It may be relevant to point to an example or two of the analytic approach in earlier ages and of its effect in the formulation of Halakhah. The Sages sought to enhance the honor and dignity of Yom Tov by encouraging haircutting before the advent of the festival. To accomplish that end they employed a simple expedient. They prohibited cutting hair during the intermediate days of the festival, thereby assuring that people would not put off a visit to the barber so that it would become a leisure time activity for ḥol ha-mo'ed. Noda bi-Yehudah18Mahadurah Kammah, Oraḥ Ḥayyim, no. 13. marshals evidence showing that their edict was not simply an exercise of general rabbinic legislative power but had the effect of delineating the type of "labor" prohibited on the intermediate days of the festival. The prohibition against haircutting, asserts Noda bi-Yehudah, is nothing more and nothing less than categorization of haircutting as a prohibited form of labor. The logical result is that hair may be cut on ḥol ha-mo'ed under precisely the same conditions under which other proscribed forms of labor may be performed on Yom Tov. The chief practical application is that a needy person lacking funds for celebration of Yom Tov who is permitted to engage in otherwise prohibited activities in order to earn sufficient funds for that purpose may also work as a barber and others may avail themselves of his services with impunity.

40 מ

Analyses of such nature appear in the responsa of virtually all of the prominent poskim where seminal teshuvot have left an indelible imprint upon the halakhic process, although, to be sure, they seldom employed either the form or vocabulary later developed in Lithuanian circles. One example culled from Teshuvot Hatam Sofer will serve as illustration.

41 מא

It is, of course, forbidden to eat non-kosher foodstuffs. There is also a second prohibition against consuming food that has acquired the taste of a non-kosher substance. An example would be a situation in which a piece of non-kosher meat is placed in a pot of cooking vegetables and then removed. No meat remains in the pot of vegetables, but the flavor of the non-kosher meat is clearly discernible. The vegetables are prohibited on the basis of ta'am ke-ikkar, i.e., the prohibition against eating food endowed with the "taste" of a non-kosher substance.

42 מב

Hakirah: Are the vegetables prohibited because of a new prohibition against ta'am, i.e., a superimposed prohibition forbidding the taste or flavor of a non-kosher substance that is quite distinct from the antecedent prohibition proscribing the non-kosher food itself? Or is the prohibition against partaking of the ta'am of a prohibited substance simply a novel expression of the underlying prohibition against eating a non-kosher food? But, comes the objection, if ta'am ke-ikkar is really part and parcel of the original prohibition why is it formulated as a separate and distinct prohibition? Answer: Were the basic prohibition not to have been supplemented by the principle of ta'am ke-ikkar the vegetables would be entirely permissible. Biblical law provides for nullification of prohibited foods by adulteration of the forbidden food with kosher food of even a slightly more than equal quantity. The principle of bittul be-rov, in terms of its own canons, would apply to adulteration of any food product even if the flavor of the non-kosher food may be detected in the mixture. However, a new rule in the form of ta'am ke-ikkar renders the mixture impermissible so long as the taste of the non-kosher food is discernible (generally unless the kosher elements are sixty times as great). Accordingly, the principle of ta'am ke-ikkar may not constitute a novel prohibition at all but may merely be a limitation upon, or an exception to, the rule of bittul be-rov which has the effect of causing the underlying prohibition to reassert itself.

43 מג

The conceptual distinction between the two formulations is clear, but is there any halakhic difference that flows therefrom? [The thrust of such a question I would term "halakhic positivism," i.e., the ultimate meaning of a ḥakirah is its verification in a concrete nafka minah, just as logical positivism insists that the meaning of a proposition is its mode of verification.]

44 מד

The difference becomes manifest with regard to the prohibition against ever min ha-ḥai as it applies to Noahides and to Jews providing Noahides with food. Are food products containing the flavor of ever min ha-ḥai forbidden to Noahides? Ever min ha-ḥai is prohibited to gentiles but the principle of ta'am ke-ikkar is not incorporated in the Noahide Code. Accordingly, if ta'am ke-ikkar is a novel and distinct prohibition, vegetables in which ever min ha-ḥai has been steeped would be permitted to Noahides, although, to be sure, there can be no flavor of ever min ha-ḥai without the presence of at least a minute quantity of the prohibited substance. The quantity of the prohibited foodstuff is so infinitesimal as to be non-existent for purposes of Halakhah: De minimis non curat lex (the law does not concern itself with trifles). But, if it is understood that halakhically recognized particles of matter exist wherever flavor is detectable and if ta'am ke-ikkar is understood as merely the recission of what would otherwise be permitted by invocation of bittul be-rov, the vegetables remain prohibited to Noahides because the principle of bittul be-rov is not one of the canons of the Noahide Code.

45 מה

Teshuvot Hatam Sofer, Yoreh De'ah no. 19, s.v. ve-adayin, citing a comment of Rashi, Hullin 98b, adopts the latter position in cryptically ruling that "taste" of ever min ha-ḥai is forbidden to Noahides because the principle of bittul is not applicable to them.19Cf., however, Noda bi-Yehudah, Mahadurah Tinyanah, no. 45; Melo ha-Ro‘im, erekh ben Noah, sec. 21; Sefer ha-Makneh, I, no. 8, sec. 1; Minḥat Ḥinnukh, no. 5; and Ḥiddushei Rabbeinu Ḥayyim ha-Levi al ha-Rambam, Hilkhot Ma‘aseh ha-Korbanot 10:12 and Hilkhot Ma’akhalot Assurot 9:9.

46 מו

Another much earlier example having a novel modern-day ramification is found in a responsum of an early eighteenth-century authority, R. Ezekiel Katzenellenbogen, who served as the immediate predecessor of R. Yonatan Eybeschutz as chief rabbi of Altona.

47 מז

A young Jew who lived in the city of Apt was accused of having frequented a Moslem prostitute. The man was imprisoned and faced death or forced apostasy. There was, however, a possibility of securing his release upon payment of an exorbitant sum of money. The leaders of the community turned to Maharam of Lublin with a query concerning whether, given the totality of the circumstances, they were obligated to secure his release by virtue of the mizvah of "ransoming captives" and, if so, whether they were obligated to expend even an exorbitant sum in order to rescue him. Maharam of Lublin, Teshuvot Maharam Lublin, no. 15, responded that the young man had the status of a "captive" whom it is a mizvah to ransom but that, despite the danger to his life, "it appears obvious to me that there is no obligation to pay a ransom greater than his value; nor do I know from whence it would enter one's mind that there is an obligation to ransom him by paying more than his value."20The statement of Pitḥei Teshuvah, Yoreh De‘ah 262:4, to the effect that Maharam ruled that the townspeople should expend even an exorbitant sum because of the consideration of ḥillul ha-Shem is inaccurate.

48 מח

Maharam's ruling became the object of severe criticism. The Mishnah, Gittin 45a, does indeed declare that captives should not be redeemed for more than their value. However, Tosafot, Gittin 58a, indicate that the Mishnah refers only to captives who are held solely for ransom. If, however, the captives are threatened with death they must be ransomed even if the sum required to secure their release is greater than their value. Maharam of Lublin was accused of having ruled as he did because he had overlooked the comments of Tosafot.

49 מט

R. Ezekiel Katzenellenbogen, Teshuvot Knesset Yeḥezkel, no. 38, focuses attention upon the discussion of the Gemara, Gittin 45a. The Gemara elucidates the rationale underlying the limitation placed by the Mishnah upon the sum that may be expended for the ransom of a captive. The Gemara posits two alternative explanations: (1) payment of a larger sum would constitute an undue burden upon the community; (2) payment of excessive ransom would encourage future kidnapping of Jews in order that exorbitant sums might be demanded for their release.

50 נ

Knesset Yeḥezkel notes that Tosafot, Gittin 58a, in addition to their comment concerning captives whose lives are endangered, offer an alternative solution to the problem addressed in that comment. Tosafot advance the position that even an exorbitant sum may be paid to secure the release of a renowned scholar. The latter distinction, argues Knesset Yeḥezkel, is not at all cogent if a maximum limit was established because of the burden the ransom represents to the community. All individuals are equal insofar as obligations of charity are concerned. Hence, contends Knesset Yeḥezkel, there is no reason why a community should assume an excessive burden for the ransom of a scholar. If, however, the limit was set in order not to encourage the kidnapping of Jews and holding them for excessive ransom, the exception made for a scholar of renown is readily perceived: Persons of such stature are few and far between. Rarely will gentiles have the opportunity to kidnap such a personage. The captor, knowing full well that the huge sum they received was forthcoming only because of the scholarly attainments of their captive, will not be encouraged to engage in a similar enterprise in the future.21As reported by R. Shlomoh Luria, Yam shel Shlomoh, Gittin 4:66, Maharam of Rothenburg did not permit himself to be ransomed for an exorbitant sum. It need not, however, be assumed that Maharam of Rothenburg disagreed with the position of Knesset Yeḥezkel. If popular accounts of the imprisonment of Maharam of Rothenburg are accurate in their report of the commodious circumstances of his confinement, Maharam of Rothenburg may not have regarded himself as a “captive” to whom the miẓvah of pidyon shevuyim pertains. If so, it is probable that the reason why, when first imprisoned, Maharam of Rothenberg reportedly cooperated in a failed attempt to raise the necessary revenue was that, at that time, he had no way of knowing that he would not be oppressed in captivity.

51 נא

By the same token, argues Knesset Yeḥezkel, the alternative resolution offered by Tosafot in positing an exclusion in instances of a threat to the life of a captive is not at all cogent if the concern is not to encourage future acts of a like nature. Once kidnappers become aware of the fact that unlimited sums are available for the ransom of Jews threatened with death they will quickly realize that they can extort vast sums simply by threatening to execute their captives. That position, contends Knesset Yeḥezkel, can be understood only if it is predicated upon the consideration that a limit was placed upon the ransom to be paid because of consideration of communal burden. A limitation based upon fear of creating onerous financial difficulties for a community is cogent with regard to establishing a limitation upon obligations of charity. However, such considerations are not germane with regard to the rescue of a human life. Thus, each of the two resolutions offered is designed to satisfy only one of the respective rationales advanced by the Gemara.22Knesset Yeḥezkel also notes that in their comments on Gittin 45a, s.v. de-lo legeivu, Tosafot fail to posit an exception in cases of danger to life because those comments are offered in explication of the discouragement rationale as is clearly indicated in the caption preceeding those comments. R. Jacob Emden’s derogatory remarks regarding R. Ezekiel Katzenellenbogen, Megillat Sefer, ed. David Kahane (Warsaw, 5657), pp. 121-140, and indeed much of the material in that work, should be taken with several grains of salt. In particular, R. Jacob Emden’s comments regarding Rabbi Katzenellenbogen, ibid., pp. 134-135, are clearly at variance with the intellectual acumen displayed in the responsum herein discussed.

52 נב

Shulḥan Arukh, Yoreh De'ah 252:4, rules that a prominent scholar may be ransomed even for an extravagant sum but makes no mention of a similar exception in instances in which the life of the captive is in jeopardy. According to Knesset Yeḥezkel's analysis, Shulḥan Arukh's position flows directly from his categorization of the limit placed upon the ransom to be paid as designed to discourage future kidnapping. It may be further noted that Rambam, Hilkhot Matnot Aniyim 8:12, codifies the same explanation in limiting the ransom to be paid to the value of the captive despite the fact that earlier, in Hilkhot Matnot Aniyim 8:15, he speaks of such captives as being in danger of losing their lives.

53 נג

Knesset Yeḥezkel's keen analysis of Tosafot's comment not only illustrates the role of analytic prowess in halakhic decision-making but also reflects a facet of pikuaḥ nefesh having far-reaching implications.

54 נד

Knesset Yeḥezkel takes it for granted that there is no obligation to rescue a captive from certain death if the result will be seizure and ultimate execution of others. This is his position despite the fact that the danger to the present captive is imminent whereas the danger to others lies sometime in the future. The clear implication is that future danger, at least when it is a matter of certainty, is to be equated with present danger. Hence, rescue of a person presently endangered should not to be undertaken if it will result in the loss of a greater number of lives at some future time.

55 נה

It is precisely that issue that is involved in the controversy concerning divulging a diagnosis of AIDS to the victim's spouse or sexual partner. Failure to divulge such information results in an ongoing danger to an innocent sexual partner. Breach of confidentiality, it is argued, will have a chilling effect upon others who, fearing that a positive diagnosis will be divulged to their spouses, will refuse to be tested for the presence of the disease. If that does indeed prove to be the case, the result will be the loss of an even greater number of lives. Assuming that such a fear would inhibit a significant number of AIDS victims from availing themselves of testing and treatment — a matter which I believe has yet to be empirically demonstrated — the argument for non-disclosure finds significant support in Knesset Yeḥezkel's discussion of Tosafot's comments.23For a fuller discussion of the halakhic issue involved see this writer’s Bioethical Dilemmas: A Jewish Perspective, I (Hoboken, 1998), 152–159. Although evidence that disclosure of a diagnosis of AIDS would result in the loss of a greater number of lives is lacking, the underlying principle, i.e., that prevention of present loss of life should not be undertaken if the result will be greater loss of life in the future, is applicable in a host of other situations.24For some examples see Bioethical Dilemmas, I, 156–157.

56 נו

In our own day, resolution of one vexing religio-social problem hinges upon analytic categorization of a particular ḥazakah. Do people who have entered into a civil marriage or who have been married under Reform or Conservative auspices without benefit of halakhically qualified witnesses require a religious divorce for dissolution of their relationship? In principle, Jewish law recognizes the equivalent of common law marriage on the basis of ḥazakah ein adam oseh be'ilato be'ilat zenut, i.e., a halakhic presumption that people do not wish to engage in fornication and therefore, when the option is available, cohabit with intent to establish a marital relationship. The facile understanding of that statement is that the ḥazakah is but an example or instantiation of a general ḥezkat kashrut, i.e., people are, and desire to be, law-abiding. Therefore they seek marriage rather than an illicit relationship. But what of a person whose lifestyle and general comportment betray a total lack of fidelity to Halakhah? It would stand to reason that, for them, no such presumption exists with regard to marriage any more so than with regard to other aspects of their behavior. So concluded R. Moshe Feinstein.25Iggerot Mosheh, Even ha-Ezer, I, nos. 74-76 and Even ha-Ezer, II, no. 19. See also, Iggerot Mosheh, Even ha-Ezer, III, no. 25.

57 נז

R. Yosef Eliyahu Henkin, however, reached a totally different conclusion on the basis of his analysis of the same ḥazakah. For R. Henkin the ḥazakah was not at all an instance of ḥezkat kashrut but a ḥezkat hanhagah, a matter of comportment rooted in human psychology and reflective of the essence of marriage. The essence of marriage, argued R. Henkin, is a woman's entry into an exclusive conjugal relationship. The human male, by operation of his psyche, seeks exclusivity in his sexual partner and will go to great lengths to prevent others from seeking the sexual favors of his partner. Whenever a male and female enter into that type of relationship the effect is matrimony whether or not such a formal institution is either sought or acknowledged. Accordingly, R. Henkin ruled that parties to any such relationship require a get for its termination,26Perushei Ivra, chaps. 3-5. while R. Moshe Feinstein ruled that in such circumstances a get was not needed. The controversy in this grave area of family law hinges entirely upon the lomdut underlying the ḥazakah ein adam oseh be'ilato be'ilat zenut.

58 נח

These examples are taken more or less at random as illustrations of the effect of lomdut upon psak over a period of several centuries. It should be quite evident that lomdut did not originate in late nineteenth-century Lithuania. To be sure, the lomdut of Brisk was not the lomdut of Telshe; the responsa of R. Akiva Eger are markedly different in style from those of Hatam Sofer. Assuredly, among those engaged in the analytic dialectic of Halakhah there are differences of style, language, vocabulary, expression and even of insights and thought processes.27R. Shlomoh Yosef Zevin’s Ishim ve-Shitot is a collection of stunning intellectual biographies of various foremost late nineteenth- and early twentieth-century rabbinic scholars. Rabbi Zevin brilliantly employs representative vignettes of analytic thinking in an emblematic portrayal of the unique thought processes of each of those lomdim. However, when all is said and done, halakhic analysis is either cogent or it is not. Cogency is immanent in the analysis, regardless of variations of language, style and flavor.28At the risk of flippancy, it may be noted that the purveyor of a popular brand of ice cream advertises that the company’s product is available in twenty-eight flavors. Chocolate ice cream does not have the same taste as vanilla ice cream; the flavor of butterscotch is quite different from that of pistachio. But the product is essentially the same; any dissimilarity is only a matter of taste. Ice cream has the same nutritional value regardless of the flavor.

59 נט

Of course, some scholars will experience and give voice to insightful observations that elude others. Given the nature of the human intellect, there may be, and indeed there often is, disagreement with regard to the accuracy of such observations and the cogency of analytic formulations. Conflicting analyses of gedolei hora'ah are well within the parameters of elu ve-elu divrei Elokim ḥayyim.29Nevertheless, even a consummate posek may prove to be less than infallible. At times, a theoretical analysis, no matter how cogent and enticing, may simply be contradicted by an overlooked source. The prowess of an oker harim can be validly employed only when accompanied by the knowledge of a sinai. One example will suffice.
In the course of a now classic responsum discussing the permissibility of blended whiskey containing a small but significant quantity of wine, R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah, I, no. 62, in effect, formulates a ḥakirah: Is wine nullified in six parts of water (rather than sixty) because, although the taste of wine remains present, it serves to ruin rather than to enhance the water or because the taste that is perceived is no longer the taste of wine? Iggerot Mosheh seeks to demonstrate that it is the latter rationale that forms the basis of the relaxation governing nullification of wine. A necessary concomitant of that hypothesis is that wine can never have the status of a condiment that remains unnullified even in a mixture sixty times as great. A contradictory statement by Rambam in his Commentary on the Mishnah, Orlah 2:10, indicating that wine may be a pungent agent, is dismissed as a copyist’s error. As a corollary, Iggerot Mosheh then formulates the theory that the residue of the grapes from which wine is pressed is prohibited, not because it absorbs non-kosher wine, but by virtue of an entirely independent prohibition. That analysis follows from Iggerot Mosheh’s premise that the “taste” of wine can never survive adulteration with a substance six times as great.
Alas, Darkei Mosheh, Yoreh De‘ah 114, citing an early-day authority, specifically refers to the pungency of the “wine” rather than the residue per se as responsible for rendering the food with which it is mixed non-kosher. Be’er ha-Golah, ad locum, cites a comment of Bet Yosef to the same effect. That rationale is also reflected in the comment of Shakh, Yoreh De‘ah 98:31. Iggerot Mosheh’s lomdut is appealing but, in this case, appears to be contradicted by the sources.
Cf., R. Yitzchak Weisz, Teshuvot Minḥat Yiẓḥak, II, no. 28, who cites these sources but does not refer to Iggerot Mosheh’s ḥiddush. Minḥat Yiẓḥak nevertheless finds grounds tentatively to permit blended whiskey on the basis of an entirely different analytic consideration.
Not so with the patent errors of a talmid she-lo higi'a le-hora'ah. Just as correct analysis is necessary for correct psak, faulty analysis necessarily results in faulty psak. Failure to appreciate the lomdut or conceptual subtlety of a talmudic aphorism can lead to serious confusion. In yeshiva circles the caricature of lomdut gone hay-wire is the application of the principle kelutah ke-mi she-huneḥah damya in ruling that a pot of milk over which a chicken has flown is thereby rendered non-kosher. Even a school child would have no difficulty in recognizing that kelutah ke-mi she-huneḥah damya is a "meta"-physical constructor, as some would prefer, a legal fiction, whereas an admixture of milk and meat depends upon the quite physical, and indeed sensual, attribute of taste, or in the Gemara's own formulation, "derekh bishul asrah Torah."

60 ס

In other instances, incongruous analysis is much less obvious. Elsewhere,30Tradition, vol. 33, no. 1 (Fall, 1998), pp. 102ff. I have had occasion to point out that the gross distortion of Halakhah that has been committed in some quarters in groundlessly declaring a state of kiddushei ta'ut and issuing annulments is based upon a misunderstanding of the principle tav le-meitav tan du mi-le-meitav armelu (better to dwell as two than to dwell alone). The proposition that women prefer marriage to persons suffering from certain physical defects over spinsterhood is cited by the Gemara, Bava Kamma 110b, in explaining why levirate obligations exist even when the brother-in-law suffers from such a condition.

61 סא

In recent decades the argument has been made that in the modern era, in light of changed economic conditions making it possible for women to earn their own livelihood, different social attitudes toward single women, the higher regard and dignity in which women are held, as well as women's own heightened sense of esteem and self-worth, the talmudic vision of women has been rendered obsolete, and continues the argument, halakhic provisions based upon the presumption of tav le-meitav must be regarded as nugatory. Years ago, R. Joseph B. Soloveitchik declared that rejection of Hazal's application of tav le-meitav "borders… on the heretical."31See lecture transcribed by Dr. Isaac Hersch, Light, 17 Kislev 5736, p. 13, reprinted in the Jewish Press, October 16, 1998, p. 22. To my mind, the more fundamental point is that such rejection does not border upon, but is squarely within, the boundaries of am ha'arazut. Nonsense is nonsense; theological analysis of nonsense can only create an aura of cogency where none exists.

62 סב

The notion that sociological, psychological, economic and attitudinal effects and/or values of the talmudic period were different from those of our day is not at all supported by the aphorism. Writing in a different context, R. Moshe Feinstein32Iggerot Mosheh, Even ha-Ezer, 1, no. 79, anaf 1. marshals comments of the Gemara as well as observations of Tosafot indicating that women of the talmudic period relish the prospect of marriage to a mukeh sheḥin no more so than do their progeny in our day. Bet ha-Levi33III, no. 3. demonstrates that the Gemara, in context, is seeking grounds for positing an implied condition upon which the marriage may be presumed to be predicated, viz., that if the result would be a levirate relationship with a mukeh sheḥin the marriage is to be nullified retroactively. For such an unstated condition to rise to the level of an implied condition it must be a universally recognized presumption (anan sahadi). Since some women do consent to give themselves in marriage to mukei sheḥin because tav le-meitav tan du, i.e., those women prefer a mukeh sheḥin to spinsterhood, such a presumption is clearly not universal. Hence, the suggestion that the original marriage was conditional in nature is firmly rebutted.

63 סג

"Lomdut" is required in order to recognize that (1) a theory for negating the levirate obligation is absolutely necessary even if tav le-meitav is not accepted as cogent; (2) that the only available theory is conditional marriage; and, finally, (3) that, in order to defeat the argument, tav le-meitav need not be posited as a universal principle. Ockham's razor applies to talmudic dialectic no less than to metaphysics. The Gemara does not posit theorems, postulate hypotheses or advance theories unless necessary for a halakhic contingency and, when it does, the theorem, postulate or hypothesis is crafted narrowly to fit the purpose.

64 סד

A student recently informed me that when he had interviewed for a rabbinic position he was asked, "And who will be your posek?" He was quite perturbed and told me that when he had answered, "I will," he felt that the committee members viewed him as an arrogant whippersnapper. What he had meant was: I shall pasken and if there is a complicated matter I will decide who is the expert in that particular area with whom I wish to consult. That is as it should be. A rav should be a moreh hora'ah and ba'alei battim should expect no less.

65 סה

Warmth, tact, dignity, vision, oratorical talent, administrative skills and many other qualities are necessary to assure a rabbi's effectiveness. But a rabbi who is not qualified to be a moreh hora'ah cannot be, and should not claim to be, a rav. And without the analytic skills of a lamdan it is not possible to function as a moreh hora'ah. Ergo, a rav, to merit the appelation, must be a lamdan.

66 סו

"Now these are the ordinances which you shall set before them. "It should not enter your mind to say, "I shall teach them a section of Torah or a halakhah twice or thrice… but I shall not trouble myself to cause them to understand the reasons for the matter and its explanation…."

67 סז

RASHI, EXODUS 21:1