Tag: Halakhic Process

Introduction

Regular readers of halakhic literature will inevitably encounter appeals to “consensus,” either of a select sample of halakhic decisiors, frequently using the Hebrew idiom “rov poskim,” or of a community’s popular perceptions. 1 The distinguishing characteristic of these appeals to consensus is that the legitimacy or rejection of an opinion is not determined by intrinsic, objective, qualifiable criteria or its merits, but by its adoption by certain people. 2 The primary premise of such arguments is that unanimity or a plurality of agreement among a given collective is halakhically binding on the Jewish population 3 and cannot be further contested or subject to review. 4

Appeals to consensus are common and relatively simply to assert, but those who rely on consensus rarely if ever acknowledge, address, or defend, the assumptions inherent with the invoking of consensus as a source – if not the determinant – of practical Jewish law. As I will demonstrate, appeals to consensus are laden with problematic logical and halakhic assumptions such that while “consensus” may constitute one factor in determining a specific psak, it is not nearly the definitive halakhic criterion its proponents would like to believe.

Notes:

  1. While in this essay I am focusing on halakhah, similar appeals to consensus are found in discussions of Jewish thought, in particular regarding the status of Maimonides’ 13 Principles of Faith.
  2. In Brisker terms, this would be a distinction between the “heftza” of a position’s content versus the “gavra” of those who accept it.
  3. This is not to be confused with the use of consensus as a form of colloquial rhetorical flourish. For example, The Talmud records hundreds of claims of “kulei ‘alma,” literally meaning “the whole world” agrees to a particular position. Given the certitude that one can produce a single lone dissenter on the planet to falsify this claim, it seems reasonable to assume that Talmudic sages were conscious of their hyperbole. But even in the Talmudic vernacular, an appeal to “kulei ‘alma” was most often employed to define a point of agreement between specific parties in order to better understand the true point of halakhic contention. See B. Berachot 23a for just one example. These appeals to “the whole world” are not the basis of a halakhic argument – which must be defended on its merits – but instead are descriptive of a certain context, albeit exaggerated, with the intent of advancing a specific point in the discussion.
  4. Alternative or contradictory opinions may be suggested, but only with the caveat they remain theoretical and are not to be implemented in practice.

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