Saturday, February 18, 2017

The Human Approach to Halakha

In the previous post, "Robot Rabbis," I cited Rabbi J. David Bleich's strange claims that it is impossible for a posek to change his approach over the years, or to be a machmir or a meikil. In response to my post, a leading scholar of rabbinic intellectual history referred me to a fascinating article by Rav Aharon Lichtenstein, ztz"l, entitled "The Human and Social Factor in Halakha." This scholar informed me that he was told that Rav Aharon specifically wrote this article as a critique of Rabbi Bleich's approach. While this must refer to earlier examples of Rabbi Bleich's approach rather than the statements that he made in the interview, here is an extract from the article that precisely refutes his comments in the interview:
...the cogency and legitimacy of a “human” approach to pesak, appears, to many, problematic. They would have us believe that the ideal posek is a faceless and heartless supercomputer into whom all of the relevant data is fed and who then produces the right answer. Should this standard not be met, the shortfall is to be regarded as a failing, the lamentable result of human frailty—in Bacon’s terms, a manifestation of the besetting “idols” which hamper and hinder the capacity for reasoned judgment. On this reading, the process of pesika, properly conceived and executed, bears no semblance to an existential encounter between seeker and respondent. It entails, rather, the application of text to problem, the coupling of code and situation. This conception does not necessarily preclude reckoning with the specific circumstances of the question and questioner, as these may very well be part of the relevant objective data. The prevailing tendency, however, would be to dwarf this factor; and as to the human aspect of the meshiv, that would be obviated entirely. He, for his part, is to be animated by the precept that “we do not have mercy in judgment,” and hence, to pass on the merits of the issue with imperviously stony objectivity.
Purist proponents of this approach often cry it up as the “frum” view of pesika. In reality, however, this portrait of a posek is mere caricature, limned by those who, at most, kar’u ve-shanu, but certainly lo shimshu. As anyone who has been privileged to observe gedolim at close hand can readily attest, they approach pesak doubly animated by responsibility to halakha and sensitivity to human concerns. The balance between norm and need may be variously struck. There certainly are ideological differences among posekim over how much weight to assign the human factor—although, as Rav Avraham Schapira once noted, the classical meshivim are likely to be among the more lenient, inasmuch as inquirers are disinclined to turn to mahmirim. In principle, however, recognition of this factor is the rule rather than the exception; and responsa include frank acknowledgments of this theme. Writing to a colleague who had dissented from a lenient pesak he had rendered with regard to an aguna, Rav Hayyim Volozhiner asserts:
"And I saw that in most matters, we were of like mind, except for [the fact that] his honor leans towards stringency, since the matter does not depend upon him. Likewise, before the yoke of practical decision was thrust upon me, I too did not incline toward the leniencies arising from [legal] analysis. In our great sins, however, the generation has been orphaned of sages, and now the yoke of practical halakhic decision-making has been thrust upon me, for in our entire region they do not free [agunot] in any manner without the concurrence of my meager opinion. Therefore I have taken counsel with my Maker, and feel obliged to gird all my strength and devote myself to remedying [the situation of] agunot. And may the blessed Lord save me from error."
Note that in contrast to Rabbi Bleich's assertion that "there is no such thing as a machmir and a meikil" and "anyone who talks in that language is not a posek," Rav Aharon both uses that language and quotes others who do likewise. Likewise, note that in contrast to Rabbi Bleich's claim that it is impossible (and even sacrilegious) for a true posek to change his approach over the years, Rav Chaim Volozhiner states explicitly that he changed his own approach.

(The article is online in PDF format at this link, and there is also a text version at this link, but that version lacks formatting to distinguish Rav Lichtenstein's own words from the sources that he cites.)


  1. Is Rabbi Bleich actually a posek? He seems to be more like a law professor whose specialty is subjecting others' work to criticism. He has written articles in which he tries to tear apart the hetterim of others, most recently the Get Zikkui case in the Tzefas Beis Din. But has he ever actually been mattir an agunah himself?

    1. But if that's the question, then there's another reason to give "caf zchus" to Rav Bleich. Imagine a doctor who sits around all day just doing research and then publishes a paper on a certain subject which has a harsh, cold approach to something real people suffer with. No one who actually practises medicine will actually approach the patient from that cold perspective, it will simply inform their decision making. Similarly, if Rav Bleich is simply presenting a survey of (some) halachic opinions but not actually paskening then his essays are there is inform, not to determine.

    2. He was applying a position on halacha to public policy. In effect he was paskening policy and by extension aligning with policy in a journal with signficant reach in the frum world. So defacto he was a posek on even a larger scale than a posek with just one case at a time before him.

  2. There are 3 kinds of people: people who look for leniency, people who look for stringency, and people who try to be as objective as possible. Unfortunately, nowadays in the charedi and orthodox world, they seem to look for the stringency; it is appalling. Even with the poskim who have are supposedly known for to be a "maikel", at least on certain issues, like R' Ovadia Yosef and others, there are still many issues where they seem to go out of their way to be stringent either in halacha or hashkafa.

    Usually, rabbonim warn people that they have biases trying to make halacha more lenient out of their laziness or taavah. However, it seems that for every schmooze or shiur rabbis give on bias about being lenient they have to give the same schmooze on how people use their bias to make things stringent. You don't only see it with rabbis, you also see it by the layperson especially in charedi and orthodox circles; they look for the chumra; they loo for a reason to be stringent. It's called sadomasochism; it's called the desire to be a slave.

    People often look at the concept of chumra as a higher level to aspire to and being maekil just means that one is not on the "level" to embrace the stringency. This is obvious nonsense. There is no virtue in subjecting oneself to potentially unnecessary restriction and discomfort. Chumra comes out of genuine doubt in halacha not out of virtue. For orthodox Jews, the most basic and common sensical behavior seems to be in question and doubt. A rabbi can go though a whole sugya and refute any reason to say issur, and still he will say in the end that "tov lehachmir" or "yesh lehizaheir" or "hamorei shamayaim yachmir al atzmo", etc. The default pull to chumra is very strange. It is a sign of weakness, not virtue.

  3. Worth also seeing the views of Rav David Bigman (who is a posek).

    Video Part One:

    Video Part Two:

    Related Article:

  4. I still think we need to look at the context of the interview and the times. We have, for the first time in a long while, a movement which claims to be Orthodox while rejecting many Orthodox principles, including the process of rendering a halachic decision properly. If an Orthodox Rav talks about leniencies and stringencies and a non-Orthodox rabbi tries to say that he does the same thing no one really takes him seriously. But if a rabbi who states he's Orthodox but uses a pick-a-posek system to create the illusion of serious p'sak (which often reaches unhalachic conclusions) then there has to be a different response.
    Rav Bleich is simply circling the wagons, as it were, as his brand of Orthodoxy retrenches itself to keep separate from those who look Orthodox but aren't.

    1. I think too many people are confusing the word "Orthodox" with "Jewish"
      More and more Orthodoxy is drifting away from Judaism and becoming something else. So the retrenching is entirely understandable from an "Orthodox" perspective, but from a Jewish perspective it just looks more and more like they are trying to keep holding up the curtain that the Grand-Rebbe of Oz is hiding behind.

      And on the other side, the Open Orthodox need to get some confidence and point out that they are not really Orthodox, but that doesn't mean "not authentically Jewish"; but rather they have a much better case to make to the Jewish public about what is the better way to be Jewish.

      Arguments such as those quoted here by Rabbi Bleich would be good grist for those mills.

  5. Anecdotal anonymous speculation about the background of this article aside, Rabbi Bleich has written exactly the opposite of the view that you are ascribing to him. In the Introduction to Volume IV of Contemporary Halakhic Problems, he write "Halakha is indeed an art as well as a science" and explains in detail why a decisor par excellence must be a person, not a computer. See also "Is there an Ethic Beyond Halahkha?" in The Philosophical Quest.

    RD, yes, he was, in a famous case. His view was cited by R' Leibes in Beis Avi and by R' Elyashiv. (It was a case of a suspected murder but no body was found. Due to his efforts, they actually apprehended the murderer.)

    1. He didn't say in the interview that there is *no* human element. But he did deny two *particular* human elements (namely, that people can have tendencies to be strict or lenient, and that people can change their approach over time). As far as I noticed, nothing in the articles you mention contradicts that (and if it did, then it would mean that he changed over time!)

  6. You all know how Rabbi Bleich and all like-minded chariedi poskim will reconcile the fracture between their chumra encrusted world and that of Rav Lichtenstein and Rav Volozhiner's orthodox normalcy?
    They will say their is no fracture because you are really not representing truthfully what those great poskim really say.
    It will go something like this with apologies to Jackie Mason.
    "That's not what Rav Lichtenstein and Rav Volozhiner said because no true great posek would ever say anything like this. And even if they did say something like this, they really didn't mean what they really said because that would be an implication that they did mean what they said and that would make them really less than great poskim, which both you and I know is impossible. "And also consider that you are making a shem-ra against those two great poskim and as such, I must end all discussion with you in this matter>"

  7. While the critiques of Rav Bleich's posture are valid, to my way of thinking, this attitude towards halacha appears to have prominent supporters in the halachic world. That is my impression of Rav Soloveitchik's view in his Halachic Man and Rav Elyashiv in his psakim.

    Y. Aharon

  8. Dear, Rabbi Slifkin,

    Usually I follow your posts with great interest, but this time you are disappointing. Of course, lawers (whatever law they belong to) should follow their respective law rather than their human feelings.
    Imagine you are arrested by a policeman - how wuld like like to be treated, according to the law or according to feelings of that policeman who might be leftist, anti-dati and Zohar believer?
    It's obvious that personal aspects of the questioner and/or other people may be a part "relevant data" fed to "the supercomputer", according to the respective question. I don't believe that Rav Bleich would disagree with that. He did not elaborate this issue due to very simple reason - after all, it was the short interview's answer rather than 25 pages essay!
    The question is different - should we (the poskim) look for stringency or leniency intendedly? Or to follow the law (of course, with taking or relevant issues and the law articles, like all judges do, into consideration) "as is"?
    The answer, in my humble opinion, depends on question - "to whom do you serve".
    If you serve the Lord, should are assumed to take his law "as is".
    If, in contrary, you serve humans (a community, some specific aguna, the entire Jewish nation or your own bank balance - does not matter), then it is clear that you will adapt The Lord's law to respective mortals needs.
    Rav Bleich claimed for himself to belong to the first category (yet I highly suspect he is in reality).
    Rav Lichteinshtein, Rav Hayyim Volozhiner and most of "gedolim" (those for whom Torah is profession and source of earning) clearly belong to the second category.

  9. Many years ago I heard that the difference between the Mishna Berura and the Aruch HaShulchan is that the latter was the Rav of city. As such and because of his responsibility towards the community, in many instances he was melamed zechus instead of taking a strict rendering of the halacha. The Mishna Berura was under no restrictions in this regard.

    1. Or in other words the Mishna Berura missed the whole point of what halacha is: a system to be applied to life.

      Perhaps we can extend your point: under no circumstances should we listen to the halachic teachings of rashei yeshiva as they clearly have the wrong end of the stick on this issue?

    2. Halachic teachings, sure, but not piskei halacha. Rashei yeshiva should not be poskim and vice versa. They are two different roles, and they are often in conflict.


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