Navonim - The Ramblings of Garnel Ironheart

Navonim - The Ramblings of Garnel Ironheart

Tuesday, 21 July 2009

The Wrong Methodology

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!


Not Brisk said...

The C process looks like how some groups decide which Hashkafah is dispositive. Start with the conclusion, etc.

Anonymous said...

We are so screwed!

David said...

"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."

That's a longer and more elevated way of describing exactly what the "other denominations" are accused of doing. Think up the answer, review the materials, then show why, in light of the materials, the answer you had in mind from the start is the right one. Oh, of course you'll claim that the oh-so-honest frum posek won't really have thought up the answer to begin with... and yet, I'm sure the "other denominations" would say the same thing.

T said...

I'm going to have to agree with David in saying that you're being a little disingenuous about how a lot of the Jewish law you might consider acceptable today comes about. Yes, of course, there is always, most importantly, a serious look at the previous writings on the issue. But often, the final ruling made is a view that is completely new, and that is made specifically to fit with the current communal trends, in order to steer the community in the right direction, or accommodate it. Whether it's a brand new interpretation or just a proper determination of how the nuances of the time fit into previous halachic rulings is always arguable. But any review of responsa over the years will show that politics are always involved in the rulings of the time. Whether this is good or bad can be argued, though clearly the rabbeim are always intending to protect their community from what they see as the wrong direction (though sometimes it's just a case of finding a way to find something to be not assur because it is just not kept and/or seems impossible for us to keep).

The article you are referencing even gives an example of this. He talks about rulings on cases where husbands were taken to concentration camps and their fates were unknown. It is clear that they were looking to find a way to allow the wives to remarry, and luckily, they were able to based on the sources. But it's pretty clear that they knew what conclusion they wanted to reach before approaching the sources.

It seems to me that with modern halachic rulings, it's almost always an issue of whether the community leaders want to find a way to rule one way or the other on something. If there is a will, there is a way. But certainly, there is always some sort of agenda going into it, even in the first method.

Garnel Ironhaert said...

Hi T and welcome

There is one essential difference between the proper halachic method and the other two. Rav Avi Shafran, in his classic "The Conservative Lie" noted that if you peruse the corpus of Conservative responsa, you will not find a single one in which the answer to a request is "no, that's not allowed." No matter what the question, no matter how little support a "yes" answer would have in halacha, the Conservatives would still answer "yes".

True, in Orthodox there are agendas. No rabbi wants to tell a woman she's an agunah. No rabbi wants to deny an inheritance to a child. No rabbi wants to ruin his congregant's business. As a result, he will use the halachic process to do his best to give the questioner what they want. Rav Moshe Feinstein, zt"l, did some groundbreaking work for agunot, for example, and after the 9/11 tragedy many of his principles were used to prevent women from becoming agunot. But in REAL halachic thinking, sometimes the answer is "no" and when it is, there's no way around it. No vote at the JTA to make a new halacha. no "but we don't want anyone to be inconvenienced by strict opinions" of LWMO. Just a plain "no" at times.

And it's interesting how in this case, it's seen as another way Orthodoxy just can't win any arguments. If the posek finds a way to say "yes" he's accused of twisting the halacha to fit a pre-determined conclusion, just like the Conservative guy. If he says "no" he's a medieval reactionary who wants everyone to live like the Amish. That, however, does not change the legitimacy of the system.

Dr Mike said...

There's another way of looking at it.

The frum way, Tosafos says it's permitted while the Rif and Rosh say it isn't. I can't just say "Well, I'm going to hold like Tosafos." No, you have to explain why you're not going with the Rif and Rosh instead.

In the LWMO way, at best they'll say "Well, we hold like Tosafos" without explaining why the negative opinions should be discounted.

David said...


You're squirming again. You keep insisting on some kind of big difference between "REAL" (i.e., your preferred method of) halakhic thinking and everyone else's. In the end, you've shown no difference besides a matter of degree.

Garnel Ironheart said...

David, you're discounting my arguments with simplistic rejoinders. I am not squirming. There is a huge difference between a system that tries to say yes but accepted the occasional no and a system which predetermines that the answer will be yes no matter what.

David said...
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David said...

Garnel, if my rejoinders seem simplistic, then they are well matched to the arguments you've raised.

So your system is valid because it says "no?" How is that a test of validity? I'm sure the Conservatives would argue that they also say "no" sometimes. Granted, they probably say it less than you, but then, you say it less than the Chareidim, so does that mean that your version is less valid than the Chareidi version? As we've discussed in the past, the Chareidim certainly think so.
Sorry, but other than being at different spots on a halakhic continuum, I'm not sure that you've pointed out any real substantive difference.

"Orthodoxy is my doxy; heterodoxy is your doxy."

Garnel Ironheart said...

Okay, let's test the validity. There are two types of questions: those with obvious answers and those with not so obvious ones.
For example, obvious: Rabbi, can I have a ham sandwich? Even (most) Conservatives will answer "no" to that one. These are not the kind of questions the halachic process is referring to because the answer and cut and dried.
And yet even there the Conservatives have budged. "Rabbi, despite homosexual intercourse being forbidden by the Torah and marriage being defined as a union of one man and one (or more) women, can Joe and Bob marry each other and carry on a sexual relationship?"
The Conservative answer to that should have been as simple as the ham sandwich: no. Yet it was yes despite the written Torah itself forbidding it.
Thus their system is to have no system. The Torah may suggest things to them but does not provide any firm guidance. There are, in essence, no red lines for them.
Thus while there may be a halachic continuum difference between MO's (and I'll remind you that I'm not MO) and Chareidism, Conservatism is not on the continuum.

David said...

Nu, so let's test the validity. If you like there can be two types of questions, as you stated.

You keep repeating the same thing-- they have no system; they never say no, etc. But you're wrong, and repeating your error does not correct it. They have a system-- it's just not as anal-retentive as yours (yours not being as anal-retentive as the Chareidi one). And, they do say "no" (see, e.g., rulings on cooking on Shabbat, tattoing, etc.).

The real difference, if you insist on categorizing things, is not that the Orthodox don't use result-oriented jurisprudence while the Conservatives do. Rather, it's that the Conservatives openly admit that they take other factors into account as well, while the Orthodox pretend that they don't. Of course, the Orthodox are not really being very honest; merely by way of example, they also ordain homosexuals-- the difference is, they force them into the closet first, and then send them off to molest boys in yeshivot afterwards. Is that really so much better than what the Conservatives do?

The Conservatives respect tradition; the Orthodox are hide-bound by it, and insist on keeping it alive for its own sake, rather than for any real purpose it may serve. You can't convince me that God really wants women to be agunot. The Conservative movement figured out a solution that maintains Jewish tradition and respect for the Torah-- the Orthodox came up with a solution that basically ruins women's lives. Of course, I'll willingly admit that, if the Torah said the opposite, and men could become agunot, then the Orthodox would have found a much more creative solution long ago...

Garnel Ironheart said...

I never said they don't have a system. In fact, I clearly outlined their system in the post. I did say they don't use a halachic system. That's the difference.

The Conservatives respect tradition until it gets in their way, then they discard it. The Orthodox treat tradition as sacrosant, you can't go against it. From a non-religious perspective, I can understand why you don't see a purpose but you need to see that from our perspective it's the basis for our legal culture.

As for the agunot, yes it's all nice and good for the Conservatives to come up with "solutions" but if they don't pass halachic muster, then you are creating a situation where children will be born who are potentially mamzerim. Then who's ruining lives? Yes, you can say it's the Orthodox for holding by their standards but from our perspective those are the correct standards. It's like saying the laws an ass. Fine, but it's still the law.

David said...

"I never said they don't have a system."
--Garnel, last post
"Thus their system is to have no system."
--Garnel, two posts ago.

Why is it better to treat tradition as sacrosanct than to respect it but not allow it to ruin peoples' lives? And, as to the agunot, your answer is ridiculous. Obviously, the Orthodox are ruining peoples' lives-- there would be no question of mamzerut if people simply adopted the Conservative solution. You cannot seriously believe that God wants women to be agunot, or that the hyperliteralist reading of the text which insists that a man "give" his wife a divorce precludes a legitimate interpretation that a court may grant it against his will.

A priest I knew once explained to me the difference between tradition and traditionalism. Tradition is keeping faith with the dead; traditionalism is keeping alive a dead faith.

Garnel Ironheart said...

I look at it from the other perspective. God wants us to obey His law as best we can. That means that sometimes there's a lousy outcome - an agunah. God does not want us permitting forbidden marriages or creating spritually blemished children.
What kind of legal system guarantees a happy ending for everyone involved? In such a scenario, all of Bernie Madoff's victims should have their money refunded by the government. What do you mean they don't get their stolen funds back?
The Conservative solution does not fit within halachic principles, therefore it cannot be applied even if it leads to happier outcomes because happier outcomes is not an official product of the system, rather justice within the parameters of the system is.

And my statements aren't contradictory. The Conservative system is to not have a system but rather to improvise whenever necessary.

David said...
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David said...

It's nice for you to be so sure about what God wants. I can't really claim that.

In the end, your argument is that "the Conservative solution does not fit within halachic principles." Which halachic principles? Why, Orthodox ones, of course. Which is to say that Conservative is not Orthodox. But they already knew that...

The problem is that your halachic principles are valid only in a self-referential way. The first line in the Koran is "This book is not to be doubted." It sounds foolish when someone else says it, doesn't it?