Monday, 9 August 2010

Guest Post

A big thank you to Rav Ben Hecht, shlit"a, for this contribution.  Please check out Rav Hecht's home site, Nishma, for great articles, divrei Torah and thoughts.

Balancing the Universals of Halachic Theory and the Specifics of the Facts

A few weeks ago, Garnel wrote a post entitled All Halacha Is Local which effectively maintained that psak is local, i.e. directed and tied to specific circumstances. I commented that while there was much truth to Garnel’s contentions, there were also some difficulties with it. Psak is actually a balance between what we may term the universal and the specific or, I think, more succinctly, the universal-general nature of halachic theory and the specifics of a particular fact situation. Indeed, as Garnel and others who commented on the original post argued, the over-extension of the universal nature of psak is often overlooked with the result being a concretization of psak in what is effectively a most unhealthy and essentially deviant manner. On the other hand, though, much of this over-generalization is a result of a fear of an over-extension of the role of the specific facts. In further conversations I had with Garnel regarding this issue, I further explained my position and expanded on the challenge that exists in maintaining a correct balance between the universal and the specific. He subsequently asked me if I would be willing to write a further post on this subject for his blog. This is that result.

Of course, it must first be understood that psak is by definition the application of specific halachic legal principles to a specific fact situation. It, as such, demands an evaluation of the exact nature of these legal principles and an exact determination of the facts. A disagreement in psak, as such, may, thus, emerge because of a disagreement in the nature of the applicable legal principle or a distinction in the facts. One posek simply could express a different conclusion from another because he has reached a different conclusion regarding the nature of the applicable halachic maxim or because he/she is actually responding to a different set of facts. It is the difference between these two scenarios that is at the essence of Garnel’s point. He argued that it was important to recognize the distinction in facts between the variant circumstances upon which a posek is adjudicating as this will affect the application of this psak in different circumstances. He is correct – but it is also important to recognize that there still is a side to psak that has a universal dimension and thus will not change due to differences in facts including the local circumstances.

His example regarding a distinction in psak between Rav Moshe Feinstein (RMF) and Rav Shlomo Zalman Aeurbach (RSZA) regarding the permissibility of violating Shabbat when one is returning from responding to a life-threatening situation illustrates this issue. Garnel maintained that given that RMF was responding to the situation in America and RSZA was responding to the situation in Israel, it is understandable that the former would be more lenient and the latter would be more stringent; in America there would be a greater need for such a person to return home. He presented this as an example of what he termed the local nature of Halacha. The problem is, though, that neither posek limited their decision to the facts of their local situation. Both contended that their position was of a universal nature. They presented differing opinions on the universal applicable halachic maxim. As such, RMF would state that his psak is applicable even in Israel and RSZA would similarly contend that his psak is even applicable in America. His would not be a classic case of a psak changing due to a change in circumstances. The psak of each of these poskim was actually not local but of a universal nature.

The second example that Garnel gave regarding medical students switching their on-call Shabbat assignments with other Jews, though, may reflect a case where psak does have a significant local nature – because the specific facts are integrated into the psak. As such, if the facts change, the psak indeed does change. This is not to say that there was no inherent disagreement between RMF and RSZA in the applicable halachic maxim regarding switching (there was) but, in responding to this shaila, there was also a need to clarify the specific facts including the nature of the Jew with whom one would be switching. For example, was this individual a tinnok she’nishba? Was this person one who was born frum? How would we answer such questions and others in the general sense? It may be that RMF and RSZA needed to consider the nature of the general population with whom one would be asked to switch and this affected their psak. But in such a case, both RMF and RSZA would also agree that their psak would be different due to the change in facts and, unlike the above example, would possible admit that their psak was intended for America or Israel respectively. A posek though may not clearly articulate such a distinction – i.e. clearly stating that their psak is tied to a specific set of facts – and it is in such cases that it is important not to universalize a law that clearly was intended for specific local circumstances (just as it is similarly important not to localize a certain law, tying it to specific facts, when it actually of a universal nature reflecting a consistent halachic maxim).

Having said all this, though, one other affect of local circumstances should also, perhaps, be mentioned. This affect, though, must be approached with extreme caution and, actually, may have very limited practical application. It is indeed possible that local circumstances may affect the conclusion reached by a posek regarding a universal halachic maxim yet this may be most difficult to determine and even if it is true may have no practical significance. Allow me to explain.

The nature of Halacha is that we are called upon to analyze the halachic system to attempt to determine the underlying halachic principles and maxims that are to be applied in further life situations. Most significant parameters in this regard are the rules of logic. A proposed maxim that can be challenged in such a regard is simply to be discarded. Nonetheless, the nature of Halacha is such that it is very much possible that different halachic theories cam emerge, meeting the challenge of logic, to explain the cases as we have them. The challenge then is to choose between these logical possibilities as to what is believed to be the correct one. This is one of the tasks of a posek – to determine which of the variant maxims or principles he believes to be the correct one and thus to be applied in the case before him and in future cases.

This determination is referred to as shikul hada’at, the weighing of the mind and is a most difficult process to clearly define. It is not an evaluation through logic as, by definition, all the possibilities being considered have already met this test. It simply reflects a determination of which possibility the posek believes to be the truth. It is not a determination of what the posek wants to be the conclusion or which view the posek happens to like. It is a determination by the posek of what he honestly believes to be the emet haTorah. The question exists, though, by what factor does a posek make such a conclusion?

The first factor is his understanding of the corpus of Halacha. Through his extensive knowledge and learning, he has some feel for the halachic system and this inherent perception clearly plays a role in his application of his shikul hada’at. One’s perception of this nature may be affected by one’s education, the overall halachic system to which he was introduced. This could indeed be potentially described as an example of local circumstances affecting a determination of universal principles yet, as mentioned, must be approached with great caution. It is not a simple case of the subjective affecting the objective. It is a fact that may have some validity – but with limited practical affect. The conclusion of the posek in regard to a halachic principle, still stands as of universal significance and cannot be dismissed because of the promotion of such application of local circumstances in the development of this person’s shikul hada’at. The idea itself still must be the focus.

This enters into the whole realm of the role of subjectivity in Halacha. It is a basic principle of the halachic system that subjectivity should have no role. The reality, though, is that this principle really calls upon us to limit subjectivity as much as humanly possible. We must make decisions with a view of the objective – what we believe to be the truth. The reality is, though, that there is an inherent subjective nature to us as human beings. Our personalities are different. Our upbringings are different. We cannot totally dismiss our subjectivity. There are numerous statements in Torah thought that recognize that distinctions in determinations of shikul hada’at may reflect distinctions in the personalities of souls (Beit Hillel, for example, being tied to chesed; Beit Shammai being tied to gevurah). Similarly upbringing and locale can affect shikul hada’at. The point is, though, that one’s objective in psak must be to limit such effects. In the end, the posek must determine what is the correct halachic practice based upon a determination that this is the truth, the universal truth given certain facts. That this determination may be affected by an unperceived or undefined subjective factor is a reality of the human condition which HaKodesh Baruch Hu considered in formulating the halachic system and directing us to apply and follow it. Piercing the veil to determine that there is a subjective or local nature to a posek or a psak must not only be done with great caution but may also have limited practical application for the Halacha itself calls upon us, when analyzing and applying such maxims, to discount their effect on the determination of universal principles.

Another effect of local factors or subjectivity in psak may be in the various motivations in rendering a psak. For example, Rabbi Herschel Schacter describes the Rav going to great lengths to try and find a heter to allow a kohein to marry a certain woman who it would seem he could not marry. Rabbi Schacter describes the Rav as being very distraught in not being able to find such a heter. The Rav gave great value to romantic love and, we can say subjectively, it motivated him to work hard and review the various halachic sources to try and find a heter. To fully illustrate this, allow me to refer to another similar situation where I asked a colleague to raise a similar issue with another gadol with whom he was close. My colleague responded that there would be no point for this gadol would simply say ‘there is always another girl, let the boy simply continuing looking.’ This gadol did not have the same value for romantic love and thus was not motivated to further investigate this issue. But the subjectivity of the Rav still did not lead him to actually pasken that it was permitted – that demanded his conclusion objectively, at least to the extent objectivity is humanely possible. Subjectivity and locality can affect the motivation in a major way but not the conclusion.

Indeed Halacha may have a local nature – but it must be understood what that means within the very parameters of Halacha. Not all Halacha is local but neither is all Halacha, every halachic statement, universal.

Rabbi Ben Hecht

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