The Perils of Pesak

If you're reading this blog, odds are you've read something about Jewish Law. You might have seen one of the many codifications such as the Mishnah Torah or Shulhan Aruch. Perhaps you've come across a commentary on one of these codes, common ones being the Ramo or Mishnah Berurah. You may have even read published rabbinic teshuvot - responsa addressing specific questions - like Yehaveh Da'at by R. Ovadia Yosef or the Iggros Moshe by R. Moshe Feinstein. Contemporary publishers such as Feldheim or Artscroll compile popular positions of Jewish Law on selected topics. All these works contain Rabbis' opinions, rulings, and occasionally reasonings for their halakhic decisions. In all of these works, the Rabbinic writers intend to shape Jewish practice - albeit to different degrees depending on the intended audience and the intended effect of their decisions.
If you've seen these types of sources, you're also probably aware that for any given issue, there are multiple opinions. Considering all the halakhic debates, it's hard enough deciding whom to follow, let alone making a decision for other people. Each posek has his own methodologies for reaching his conclusions, and to fully understand each one requires a complete and detailed study of their individual works. However, all "poskim" share similar challenges in publishing their works. One such challenge is distinguishing normative Jewish Law with statements of public policy.


Contrary to popular beliefs, halakha and religious social policy are not necessarily one and the same. Halakha is objective normative law presented in definitive terms of, mutar - permitted, assur - forbidden, or hiyuv - obligatory. Furthermore, halakha is binding on all Jews regardless of location or ethnicity. Simply, halakha is in fact, Jewish Law.
Policy on the other hand, is not law, but guidelines for practice. For example, an action may not be required, but a Rabbi may deem it appropriate for an action to be mandated. For an example, think of a Rabbi instituting a new custom, ritual, or interpretation which doesn't contradict halakha. Similarly, an an action may be permitted, but a Rabbi may decide to prohibit something due to potential negative ramifications. Policy statements are usually distinguished not by prescriptive legal statements of obligation or prohibition, but of ethical or subjective statements such as "ought" or "should."
This does not mean the public policy has no halakhic consequences. When a Rabbi of a shul legitimately establishes halakhic policy for his shul, that policy becomes normative law for that congregation. Part of the rabbinical law allows for a communal rabbi to establish his own mandate. When a rabbi does this, his pesak becomes normative for his own congregation. However, while his own community is rabbinically obligated to follow their rabbi, other communities are not. As the terms suggest, policy is a suggestion - perhaps a strong suggestion - but it is not law.
Not surprisingly, there is much confusion between the two concepts of halakha and policy. Even worse, is that this confusion perpetuates even more halakhic uncertainty though Rabbis' own pesak halakha.
If a Rabbi uses the halakhic terms of assur or hiyyuv when non exists, he risks criticism, and perhaps a loss of respect for creating a rule when none exists. The Rabbi may face claims of arrogance for inventing a law, or perhaps risk claims of dubious logic all intended to justify his a priori conclusion. In short, he compromises his integrity.
On the other hand, if a Rabbi writes a strongly worded suggestion, then his words may still be misinterpreted. If a Rabbi refrains from writing in the legal terms of obligation or prohibition, then he risks the public ignoring his position, or even manipulated for a different agenda.
To illustrate this tension and its ramifications, I like to give involves two different decisions by Rabbi Joseph Soloveitchik. In 1959 R. Soloveitchik wrote a harshly worded responsa regarding praying in a synagogue which had mixed seating of the sexes. Of the more controversial positions he took, R. Soloveitchik wrote that mixed seating violated a biblical commandment, the requirement for a physical barrier (mehitza) for prayer between men and women was a rabbinic obligation, and that it was preferable to avoid hearing the shofar blown than to hear it in a synagogue which did not have a mehitza.
Halakhically, this responsa is troubling for several reasons, the primary one being his invention of a midrash halakha on Deut. 23:15 to validate his intuition.1 From the perspective of policy, R. Soloveitchik's concerns were very much justified. At the time, the Conservative movement was seen as a legitimate threat to Orthodoxy and this was the "dividing line" if you will which Orthodoxy would not cross. From a halakhic perspective, R. Soloveitchik's responsa is disconcerting, such that his most devoted students have difficulty explaining his position. Even biographer R. Aharon Rakeffet-Rothkoff admitted2 that R. Soloveitchik was probably writing using the authority of hora'at sha'ah - a temporary injunction for the greater good of the Jewish community.
Why then couldn't R. Soloveitchik simply have said that his ruling was because of hora'at sha'ah? I suggest it is because then his ruling would have had a fraction of the influence. Unless he unequivocally ruled that a mehitza was obligatory, people would have contended that it was essentially optional, thus supporting the Conservative position.
To support this second side of the equation, I offer the example of women's prayer groups. As wonderfully summarized by Simcha, R. Soloveitchik never explicitly prohibited the groups, but it is clear from his other writings and practices that he did not approve of them. However, since he never ruled prohibitively, some students argue that not only are women's prayer groups not prohibited, but they are also within the tradition of R. Soloveitchik himself.3 R. Soloveitchik intended to establish policy, but his lack of halakhic force allowed others to more easily ignore his policies.
When a posek writes anything in print, it becomes a matter of public record. Anyone with a knowledge of Hebrew or English can read most halakhic works, without being formally trained in any aspect of Jewish law. Consequently, any written piece of Jewish law is subject to, and often the victim of gross misinterpretations.
As a Rabbi's audience grows, so do his responsibilities in formulating an accurate legal ruling which will be followed as intended. A shul Rabbi writing for a weekly bulletin need not be as concerned as a more prominent Rabbi writing complicated halakhic decisions. When published, people can and will interpreted responsas in whichever way they see fit. It is the responsibility of the Rabbi to be careful with his words (Avot 1:11) - to be clear with his words to the laity, yet sophisticated enough for the elite. With the great power a prominent Rabbi wields, he must also face this great responsibility.

1. For a thorough analysis of this responsa, see my father's Mehitza Midrash and Modernity in Judaism 28, 1 (1979) 147-159.
2. In personal conversations, once with my father, and once with myself when I was at Gruss.
3. In an uncharacteristically accessible article, R. Aharon Lichtenstein criticized the Edah organization in a letter to the editor for this very reason.

Posted in Jewish Culture, Jewish Law / Halakha, Jewish Thought, Theology, and Machshava, Rabbi Week.

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