This past Sunday YU’s newly formed Medical Ethics Society’s held its first annual conference, this one being titled, “Organ Donation: A Matter of Life and Death – A Conference on Organ Donation in Jewish Law.” In general when YU puts on one of these events, the result is positive and this was no exception. The organizers did a fantastic job of setting up the program and managing the flow of the conference, as well as adapting to unforseen scheduling conflicts. The speaker list was very impressive, including a nice range of speakers and topics, but more importantly, everyone spoke surprisingly well. Despite the complexities and nuances of the halakhic and medical issues involved, all speakers were clear, lucid, and articulate making these complicated topics accessibly to a lay audience. I found this to be especially notable in the Roshei Yeshiva R. Willig, R. Schachter, and R. Tendler who were all very well focused on their presentations. The end result was a highly poignant, informative and occasionally entertaining. I was told that there is a plan to have something published for the event, and perhaps the audio of the presentations will find their way on line. Until then, here’s my recap and analysis of the conference including the classic R. Schachter/R. Tendler showdown on the controversial topic of Brain Death.
UPDATE You may also want to check out CuriousJew’s transcription.

In this season of teshuva leading up to the yamim nora’im religious discussions primarily focus on personal change. We look to change our practices, ideally becoming more committed to Torah. We seek to change our religious perspectives, hopefully reconnecting with the Divine. For Rambam, this process of change is not simply behavioral, but existential. As we acknowledge and renounce our transgressions we also take measures demonstrating that we have changed to the point where we “are no longer the same person who committed these actions” (Hilchot Teshuva 2:4).

But what does it mean that we are no longer the same person? How does the process of teshuva effect a change so substantive that it alters our fundamental identity? In order to fully understand this transition we must tackle the philosophical question of what is the true essence of our personal identity – to find the essential determinant which makes us “us” such that changing this element constitutes a meaningful change in our identity. While this challenge may seem daunting to lesser minds, it is no match for the discerning duo of The Incredible Hulk…and an Oxford PhD.

While there is no shortage of Biblical verses rebuking Benei Yisrael for their various transgressions, one such indictment which seems imprecise and perhaps overly harsh is the comparison with the people of S’dom and ‘Amorah. As we know, the legacy of S’dom and ‘Amorah is one of unmitigated evil and a benchmark for immorality which is used to this day. Their sins were so complete and evil so absolute that Hashem does not simply cause the cities’ destruction, but completely obliterates them with unparalleled divine wrath. And yet in Eicha we are told that “the sins of the daughter of my people is greater than that of S’dom” (Eicha 4:6), and in the Haftara of Hazon the Navi exclaims “Heed the word of Hashem you leaders of S’dom, listen to the words of our God’s Torah you people of ‘Amorah” (Yeshayahu 1:10). Were the sins of the Jews in fact as serious and complete to warrant such comparisons with S’dom and ‘Amorah?

Despite the expectation from its title, Rabbi Herschel Schachter’s recent Beit Yitzchak article “Kuntres B’Inyanei Pesak Halakha” (PDF) does not articulate a system or method of deciding and applying Jewish law. Instead of outlining his views of how pesak works, the article is nearly entirely comprised of sources and anecdotes illustrating the dangers of blindly following observed practices even when they have been approved or enacted by rabbinic authorities. For example in some cases a rabbi could be responding to extenuating circumstances and in a different situation could pasken differently. It is also possible (if not likely) that a person will simply misunderstand or misinterpret the given pesak and thus not be competent to apply that pesak to other cases.

We’ve discussed these concerns in our Perils of Pesak from the perspective of the posek in terms of taking care in formulating responses. Here, R. Schachter passively argues that there is a corresponding responsibility on the recipient or observer of the pesak. Specifically, while non-gedolim are expected to follow the “hachmei ha-mesorah,” the typical Jew is not allowed to apply that pesak or observed practice to other situations since it is likely that a “ba’al ha-bayit” will be missing crucial information or intellectual sophistication to process and apply a gadol‘s pesak on his own.

By itself, this is a completely reasonable position considering how often people misunderstand or misquote Rabbis, but it does raise the question of what should be done. To answer this questions, R. Schachter tacitly argues for an additional level in a rabbinic hierarchy. Towards the conclusion of the first paragraph, R. Schachter refers to Rabba’s statement in (B. Avoda Zara 5b (English) that a person “does not stand/rely on the thoughts of his teacher until after forty years,” meaning it takes forty years to truly understand the methods of one’s teacher. This citation reveals the intention in the article’s first sentence, in which R. Schachter’s refers to his education with R. Soloveitchik “more than forty years ago.” Taking the Talmudic citation and the introductory statement together, R. Schachter establishes himself as one of the few genuine and authoritative interpreters of R. Soloveitchik.1

R. Schachter has previously argued for a restrictive model of halakhic discourse in which only certain individuals are entitled to an opinion. See for example his comments on Yom Tov Sheni:2

If one is a then he is entitled and indeed obligated to research each and every halakhic issue and to follow his own personal view on any matter. But, if one is not higia lehoraah (as the overwhelming majority of people who learned in yeshiva would be classified) then one may not pick and chose arbitrarily from amongst the various opinions of the poskim.

However, R. Schachter does not define exactly who is higi’ah l’hora’ah or how one achieves this status.3 From Kuntres, it is possible he is distinguishing higi’ah l’hora’ah with ba’al mesorah, where one can decide for himself but cannot speak for others, or if the two are in fact synonymous. In either case, pesak must only be made by approved people, but only those with the requisite experience may speak on behalf of the gedolim. I would suggest that for R. Schachter the two must work in tandem, since otherwise anyone who was in the Rav’s shiur 40 years ago would have equal standing for interpreting R. Soloveitchik – a common perception considering how many people claim to speak for R. Soloveitchik.

Practically speaking, R. Schachter’s suggestion further restricts the possibility of personal autonomy in following halakha. Only certain people allowed to go back to the original sources, and everyone else must ask them for halakhic decisions. However, even though one may have a pesak for one case, or observes how someone paskened in another case, one still should not repeat the pesak in other instances, but ostensibly should once again ask for another pesak. In other words, the solution to people not being able to follow the gadol system correctly, is to have an intermediary to explain and apply the gadol’s pesak for us.

While I can understand the pragmatic need for such a position, I think this is ultimately unhelpful since adding the additional rabbinic level simply creates another person to be misunderstood. If there is a risk of misapplying the pesak of a gadol, there is an equal risk of misapplying or misunderstanding the pesak of his student. Furthermore, we would also have to assume that the student does not have an agenda of his own or a desire to see his Rebbe portrayed in a certain light. Again using R. Soloveitchik as an example, there are numerous Rabbis trying to re-create R. Soloveitchik in their own image which requires ignoring or rationalizing certain decisions or behaviors of the Rav which are inconsistent with the student’s perception. For example, one Rabbi remarked at R. Soloveitchik’s funeral that he never saw the Rav reading a secular book. While this may be entirely true, the implication is misleading. Or for another example, despite R. Soloveitchik’s vehement stance against mixed seating, he allowed an uncle of mine to take a non-mehitza pulpit. When I mentioned this to one YU Rosh Yeshiva, the response was, “it couldn’t be – he must have misunderstood.” I cannot comment on who is right here, but the problem is the same regardless. If the gadol is widely accepted (or expected to be accepted), then of course there will be more of a desire to interpret his positions in a particular way to coincide with a student’s own hashkafa.

It would seem to me that the cause of such misapplications of halakha is the very lack of perceived autonomy in the “gadol system” of halakha. We have trained people to simply follow the gedolim, and that is exactly what people are doing. If the problem is that people do not know what they are doing in following the gedolim, then perhaps education in the halakhic nuances of pesak would be a more effective long-term solution.4

1. And by constantly referring to R. Soloveitchik as our teacher (rabbeinu), R. Schachter implies that this authority is sweeping.
2. Hat tip to Shaya for the link.
3. Though it’s clear that he does not consider most smikhas to be sufficient.
4. Or we could change the system, but that is not likely to happen anytime soon.

My previous post on Ryan Karben prompted an interesting conversation with someone who knew him from the YU days. According to this person, Karben’s affinities were an “open secret” at YU and he personally knew people who had been propositioned by Karben.
We then discussed the question of if and when someone’s tendencies should be “outed.” If we are aware that someone is potentially dangerous, to what extent do we pursue this person or expose the risks of being involved with such a person.
On one hand, we do have the obligation of lo ta’amod ‘al dam rei’echa and cannot sit idly by while people are being harmed. If we know that there is a risk in the community, can we risk doing nothing?
On the other hand, pursuing such people needs evidence and as the Gafni and Lanner cases have shown us, they might not do much good. Furthermore, there is always the risk of slander, which is prevalent enough as it is let alone being motivated by religious or political agendas.
I’m open to suggestions.
Update: In an IM, The Town Crier points to other recent examples of whistleblowing both good and bad, including Un-Orthodox Jew and the Kolko issue as well as Jewschool apologizing (and perhaps retracting the apology) for reporting that Gafni was accused of rape. In the Internet Age and instant anonymous blogging, the whistleblowing reporting can be used for good or evil faster with more immediate consequences.

The Jewish Week recently created a stir when it reported that “the Chief Rabbinate in Israel is refusing to accept conversions performed by several leading Rabbinical Council of America (RCA) rabbis,” a revelation which many in the Orthodox world found unsettling. In addition to challenging foreign Rabbinic authority, this policy aversely affects hundreds if not thousands of converts who have trained and studied under Orthodox auspices. The RCA itself was tentative in its initial response, leading some to claim that R. Herring was selling out his constituency. Having discussed the issue more thoroughly at their recent convention, the RCA responded saying that the Israeli Rabbinate was not singling out or delegitimizing the RCA conversions, but generally reevaluating their methods for accepting conversions worldwide.

SIW correctly notes, “While the Chief Rabbinate may not have specifically ‘rejected a conversion authorized by the Beth Din of America,’ it seems by all accounts certainly to be rejecting those authorizations.” This analysis is supported by other quotes in the original article:

The difference is that since Rabbi Amar assumed his position in 2003, he said, “we have been operating according to a list of approved rabbis.”

The list, obtained by The Jewish Week, has fewer than 50 names on it, including some rabbis who are deceased.
“A member of the RCA is not automatically recognized,” Rabbi Krispel said.

The ramifications of such a policy are extensive. Since Israel lacks the clear division of Church and State, the religious decisions made by the Israeli Rabbinate affect many areas of social policy. For example, the halakhic rulings of Who is a Jew will determine if one can get married in Israel, or if one may be included under the Law of Return for citizenship.

The purpose of having the Rabbinate wielding such authority is ostensibly to ensure that Jewish law is being followed properly. However, in light of their decisions to reevaluate its accepting of certain conversions, we should question if the standards being drafted are entirely in line with the standards mandated by halakha.

With Purim nearly upon us, it’s time once again for the reading of the four special parshiyot. We’re actually in the middle, having already covered sheqalim last week, but this week we get the spectacular fun of zachor (Devarim 25:17-19). Invariably, this reading generates much discussion as to how this passage should be read (including the practice of repeaing the last verse – a discussion for another time), and the extreme importance of being in shul to hear zachor being read.

Most of these discussions are based on the preception that the reading of parashat zachor is biblically mandated. This assumption has bothered me for some time, as well as the cavalier attitude with which it is presented. Despite the lack of textual evidence or logical consistency, few people question the nature of keriat parashat zachor. As luck would have it, my new upgraded Bar Ilan CD just came in and it’s all all revved up for a test spin.