Rav Yitzchok Aderlstein's latest essay on Cross Currents is, for me, groundbreaking. Mostly because I agree with most of it!
In his last few pieces, Rav Adlerstein notes that halachic methodology and academic methodology are not the same thing. Too often Modern Orthodox authorities with a strong academic background forget this and apply the skills they learned at their Ivy League alma mater to the field of decision-making in Jewish law.
Rav Adlerstein notes, in 5 easy steps, how a real posek makes a halachic decision:
With much simplification, you can take hundreds of years of responsa literature and detect a modal methodology for dealing with halachically weighty issues. Roughly, an author will inventory earlier halachic literature for principles and sources that are relevant to a question. He will offer a tentative solution, based on some of them. Let’s assume that he came up with what he felt was a strong case based on Tosafos. He may push and prod a bit, finding objections internally, or in other places that Tosafos comment. He will consider other, possibly conflicting readings of Tosafos, and show why he believes that his is best. From there, the argument goes somewhat like this:
1) The Rif and the Rashba seem to disagree with that of Tosafos.
2) It can be demonstrated that the Rif’s opinion is not substantively different, even if it appears to be. Alternatively, while there usually is a disagreement, both opinions would coincide in the case at hand.
3) The Rashba is linked to another position of his elsewhere. That second position is rejected by Shulchan Aruch/ rov Rishonim, etc. Therefore, we needn’t take it into account.
4) One could counter the main argument with the Meiri, the Teshuvos HaRosh, and a Mordechai. Examination shows that they are all address related, but slightly different issues. They therefore have little or no impact upon the main argument.
5) The argument based on Tosafos, therefore, is the strongest and should be accepted as dispositive.
In other words, a proper halachic argument is a search for halachic “truth:” the best fit with the majority of evidence. “Evidence” means Talmudic texts, consequences that flow from them, and the positions of Rishonim (and important Acharonim, weighted according to stature and prominence). An argument is not complete unless all important counterarguments are considered and dealt with.It could not be otherwise. How could one arrive at the truth without careful consideration of all evidence, and all important voices that have considered it?
He follows up with a striking contrast, that of those Conservatives who still mistakenly believe that they are a halachic form of Judaism:
The sharpest contrast to this methodology comes not from academic circles, but from the responsa of other denominations. I have seen quite a few (they used to be far more popular decades ago, when they made more of a pretense of being halachic) that follow a predictable sequence:
1) Decide what conclusion you want to arrive at. This will often be based on predicting what the Jewish ethical response must be in a world that has changed so significantly from the early legal texts of Judaism, that the modern author is given much leeway.
2) Find a few gemaros that seem to deal with the issue. If they don’t agree with your conclusion, either ignore them altogether, or find some understanding of each counterexample which will make it irrelevant to our times. This can be done by finding a single Rishon whose explanation of the gemara makes it possible to argue that the rabbis of the Talmud simply would not have said the same thing today. It doesn’t matter if that Rishon’s thinking is outweighed by a huge number of contradictory opinions.
3) Alternatively, show why such thinking is simply at odds with contemporary insight and reasonableness, and therefore must be discarded as foreign to the “spirit” of Jewish law and its inherent resiliency and flexibility.
4) Find a medrash as a springboard to show how quintessentially Jewish, how much in the spirit of Jewish law your own conclusion is.
5) Accept your original argument.
He then proceeds to analyze the left wing Modern Orthodox method of paskening and the differences, while bluntly stated, seem quite accurate:
1) According to the Rambam, the Rosh, and the Kol Bo, activity X is proscribed. The Mordechai takes an even stricter view than the others, seeing multiple issurim involved.
2) No one explicitly permits it. However, a responsum by the Nodah Be-Yehudah includes an argument by his interlocutor which presents a lenient line of reasoning. The Nodah Be-Yehudah himself rejects it, with cause.
3) Poskim for the last few hundred years have all accepted the Nodah Be-Yehudah. However, Responsa Minchas Pinchas argues that in a sha’as ha-dechak situation, we can rely on the rejected line of reasoning – although he only uses it together with other extenuating circumstances. (The Minchas Pinchas, who wrote in Cincinnati at the turn of the twentieth century, is not well established as a halachic powerhouse, which is lamentable since he demonstrates a proclivity towards leniency. Living in America, having no Shomer Shabbos congregants, provided him with an enlightened and practical view of modernity and its demands. In any event, his is as legitimate a halachic voice as any other, so it may be relied upon.)
4) We find ourselves equally in a sha’as ha-dechak situation today. For the large part of the Orthodox world that is unhappy with the constraints of Jewish law, we likewise have halachic sanction to be lenient.
5) Therefore accept the lenient opinion.
Unfortunatley, anyone who has spent time following the Torah thinking of the YCT crowd can easily see that this is quite an accurate representation.
However, Rav Adlerstein does miss out on a few points. He could have made a stronger point by noting that the real (1) for left wing Modern Orthodoxy is to predetermine what conclusion you want to come out with, just like the Conservatives. The only difference then between the two groups is how to get to that conclusion in the face of unlrelenting halachic opposition. While the Conservatives will deal with such a road block by simply holding a vote, of their rabbis if likely to pass, of the entire JTS faculty if not, LWMO folks will avoid such an obvious end-run around halacha. Instead there will be a leap of logic - well, we looked at the Mordechai and he didn't actually forbid it (probably because he never actually addressed the subject0 so based on his lack of forbidding, we'll rule it's permitted.
There is one final point that Rav Adlerstein omitted, probably for ideological reasons. There is a (6) to the proper halachic methodology, something I like to call the Chareidi option:
6) If you can’t find what you’re looking for in Toasfos, declare “Daas Torah” and implement the chumrah anyway!