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.

  1. These are continuing to be slightly controversal…I hope you know what I mean. You are putting out there what laypeople need to know, but do the higher uppers what us to know this? If I am not mistaken, becuase hiyuv/mutar/assur and there various degrees of how they are written down ( ok this is not written down well), when a rabbi wants something not permitted in his community that is is mutar, becuase of the way is written is sounds assur… You are pointing out the sociological aspect of this, which makes us all seem much more human and much less holy. and makes religion much less holy (though personally, i find it much more comforting that religion is human.) Josh…be careful. You are young now, but one day you could find yourself in the public eye with this, and not everyone is ready to confront themselves in the eyes of god.

  2. Once again, you hit the nail right on the head. So has Shana (per our other discussion). I think you can take it, though.

  3. Well-thought-out and clear. Thank you for this post. I hadn’t thought before about the similarity and the distinction between halakha and policy.

  4. Excellent article. I think there is a mistake in the second sentence of the fifth paragraph — after the comma, “shul” should be “policy”.
    I can’t comment on your mekhitza example, but I am not sure RYBS did anything other than he intended with regard to WPG. In his view, they are not “assur,” but in the circumstances presented to him they were wrong and should not be sanctioned. On the other hand, different circumstances could result in different conclusions. In other words, he was presenting the halakha exactly as it was (in his view), neither adding or subtracting from it. It may be that other Rabbis used poor judgment in analyzing the circumstances to permit WPGs later, but that is their fault. The blame cannot be laid at RYBS’ feet. If the halakha is that discretion and judgment are required, then it is the responsibility of Rabbis to exercise that judgment and for the community to figure out whose judgment counts.

  5. Although I am sure that it was not your intention, reading this essay may lead some people to believe that rabbinic policy is at all times of lesser importance than Halakha. In fact the opposite is often true. While we often cite the fact that we treat biblical laws stringently and rabbinic laws leniently when IN DOUBT, often rabbic policy has the FULL WEIGHT OF HALAKHA and more. For instance, there is no rabbinic law which exempts women because of its time-bound positive committment. Often Rabbinic decrees are given further stringencies in order to prevent people from dismissing them.
    Therefore, the Rav’s pesak re. Shofar may seem to contradicxt halakha but is essentially on equal footing (horaat shaa should also have the full effect of biblical Halakha).
    Remember, the mishna in Sanhedrin says that one loses their share in the world to come through disputing the words of the sages, or by refusing to accept their right to interpret Torah.

  6. Danny —
    For me, one key conceptual “take-away” from this post is not that Rabbinic “policy” should be taken lightly by lay people, but instead that the “policy” status should (ideally) be clear to other poskim evaluating its precedential effect when making subsequent decisions. This in turn influences lay perception and acceptance as well.
    For example, suppose that Rav A decides that a particular activity is technically muttar but forbids it in a p’sak for policy reasons.
    Twenty years pass, and Rav B now has to address the same halachik issue with a new factual twist.
    Query: Will Rav B make a better decision with or without clear knowledge of: (1) the policy basis for Rav A’s earlier p’sak, and (2)the knowledge that Rav A had concluded that the activity was technically muttar?
    Finally, consider the effects of the absence of such knowledge on the wider community. Let’s assume that the relevant community/ies comply with Rav A’s earlier p’sak, and further that they are unaware of both Rav A’s “technically muttar” conclusion and of the policy underpinning of Rav A’s p’sak.
    These lay people now hear of a new p’sak by Rav B that appears to be contrary to Rav A’s 20-year-old p’sak. What will they make of this? Will they be equally respectful of Rav B’s p’sak (and/or attempt to educate themselves as to the distinctions made), or will a good number instead be outraged at Rav B based on their (incorrect) assumption that the contemporary (and usually perceived as lesser) Rav B has cavalierly paskened contrary to Rav A?

  7. This is, p[erhaps, somewhat technical, but R. Soloveitchik’s psak on shofar was not directed to shuls without a mechitzah; they were directed to shuls with mixed seating. The difference is minor, but since there are shuls without mechitzot which have separate seating, and since R. Soloveitchik was very careful in the terminology he used, this distinction should not be forgotten.