We have been discussing the qualifications of a person rendering an halachic argument or decision, noting that personal qualities are an important element in determining the Orthodoxy of the position asserted. In that list of qualifications, there is also the question of the breadth of the person’s halachic interests.

One-Shot Wonders and the World of Orthodoxy

Some fully traditional and authoritative halachists, it is true, focus on one topic and its details. Indeed, single-minded focus might lead to a greater authority in that subject area than achieved by generalists. Certainly the history of halacha knows of, and has been enriched by, one-shot wonders, unquestionably traditional writers who left only one major work, or only one of whose works became standard on its topic. At the same time, too narrow a focus sometimes warns of a politically charged agenda. In such cases, we might begin to wonder whether the decisor is being influenced by factors and sources external to—and therefore possibly alien to– the system itself. Interestingly, that might happen either way: the decisor might be overly quick to reject avenues for flexibility because of the overtones of the question, or, in reverse, be inordinately moved by a perspective that is not sufficiently grounded in halacha and Jewish thought.

The scholar might equally well have tested his or her ideas to insure that they do fit the system, so the external origin is not itself proof of non-Orthodoxy. In perhaps the most famous example, Rambam would certainly claim that he only adopted those philosophical ideas he found to be consonant with the system of Torah. The various poskim of the 20th century to whom we have referred were also clearly involved with and attuned to the issues of their day, and yet grounded their halachic decisions in the original intent and tenor of the sources they cite. Nonetheless, the breadth of a person’s halachic interests seem to me one consideration in the extent to which we rely on their authority.

Like everything else in this section, the concern with a halachist’s stature and qualifications should not be seen as a recipe for stasis or as discouraging appropriate innovation. Judaism has seen many daring writers; R. Elijah of Vilna, known as the Vilna Gaon, disagreed with earlier sources on occasion as did R. Abraham Isaiah Karelitz, known as Chazon Ish [i]. Their path is open to others, to be sure, but the level of authority it requires is considerable.

Aside from the halachist’s person, the idea being advocated can sometimes announce its questionable place in Orthodoxy. For the most banal example, no argument or source, no matter how authoritative or convincing, can successfully advocate idol worship. To get less trivial, I offer two more questions to ask of the substance of an halachic ruling.

Question 3: Evolution or Revolution?

The greater the change to current practice being advocated, the greater the burden of proof and/or underlying authority it bears. Evolutionary change, which looks for the next step in the system’s slow unfolding, obligates a lesser level of proof than revolution, a completely new idea as to how Jews can serve God.

That halacha will evolve is clear from the recognition that the same system must apply to various cultures and eras. On simpler matters, where the legacy of the past is clear, arguing that x is the logical extension will be easier; as the complexity heightens, or the specificity of the legacy abates, a concomitantly higher level of textual and/or rabbinic authority will be necessary to bestow authenticity on an halachic claim. The same goes for arguing that conditions have changed sufficiently to lead to a different conclusion than the one offered in the Talmud; while it happens, it requires a greater level of authority and of persuasiveness of argument [ii].

Beyond that, there are occasions where halachists successfully offer a new way of looking at a topic that is nonetheless fully Orthodox. An excellent example is R. Zvi Ashkenazi, known by the title of his responsa, Chacham Zvi, who argued that diaspora Jews could observe only one day of a holiday, like the residents of Israel, whenever they were in Israel. His argument was that the ordinary way of thinking about the issue was erroneous and that correct analysis would yield agreement with his perspective [iii].

There has been great resistance to his ruling, and many still abide by the earlier view [iv]. Among the factors that give it any legitimacy, though, are his personal halachic stature, his following ordinary halachic process, and his recognizing and engaging the earlier sources in categories and modes of thinking familiar and customary within the system.

Question 4: How Significant a Change?

The distinction between evolutionary and revolutionary change focused on how related the new idea was to those that had come before. Within either of those categories, we can again differentiate changes by their impact on the system. Change to a custom observed by only a small contingent of Jews, even if it were revolutionary, would still be less significant than that affecting a Torah law, or one that touched the lives of a larger number of Jews. As before, the more significant the change (halachic or sociological, a category of practices we will discuss in upcoming posts), the greater the level of halachic authority we would hope for in those who authorize this change.

It would be more Orthodoxly satisfying, that is, to join the Zionist movement because great rabbis have agreed to its value and validity than to do so simply because it strikes the private individual as correct. Similarly, the early twentieth century Yeshiva University hired various European rabbis, implicitly attaining greater halachic legitimacy; the presence of Rabbi Joseph B. Soloveitchik z”l, in the mid and late twentieth century crucially continued that legitimacy. Some of that is certainly sociological, but the greater the innovation at hand, as an halachic matter, the greater backing authority needed as well.

Question 5: What Kinds of Sources Are Being Cited?

Moving beyond the person of the decisor, the first step of halachic process is to consult texts, the sources of plausible halachic truths. The wealth of texts bequeathed by Jewish history and tradition means that supporting any halachic argument will involve selecting and interpreting sources, either of which can foster error.

Selecting sources involves decisions on relevance, on which sources to consult, and authority, which sources to accept as more probative than others. While relevance is often a matter of personal library (no one cites as widely as R. Ovadya Yosef, yet even he has more and less preferred sources), authority questions arise both within and without the canon of traditional Jewish texts.

Some texts that are undeniably part of the tradition nonetheless wield questionable halachic weight. Aggadic (loosely: storytelling) Midrashim, those texts that tend to expand the storytelling aspect of Jewish literature, for example, are not always intended to convey halachic information, as we suggested in an earlier post about the story of Hillel and the convert. Works devoted to religious exhortation, Jewish history and/or Jewish philosophy might have either dispensed with or lost their claim to halachic authority [v]. In addition, some apparently useful sources are of questionable authorship or include conclusions that have been roundly rejected by other halachists [vi].

An extension of this question is how to use non-halachic books as part of the halachic process [vii]. If, for example, someone were discussing medical ethics, we can imagine non-halachic literature that would be useful, even necessary, for the discussion.

In relying on such citations, though, we must remember that their validity stems only from their validity, not from any inherent commitment Jews have to following their perspectives. Whereas a Torah scholar’s ideas about Torah and halacha are valuable by virtue of their partaking of the chain of Torah study extending back to Sinai (even if we ultimately reject the conclusions), other fields’ value for halacha is limited to the extent that they reveal or articulate truths. Were such a source to be discredited or its conclusions disproved, it would fall out of our halachic interest and consciousness.

Some of that hesitation should, it seems to me, permeate our use of any sources that run counter to current halachic assumptions even when no question has been raised about their soundness. While halacha has always proven adaptable to newly discovered truths, that process of adaptation properly occurs only when what has been discovered is a truth rather than a fad. Just as the failure to absorb newly discovered truths puts unneeded stress on Jews’ ability to adhere to God’s law, falling for the latest social whim and bending halacha to it violates proper halachic process. The challenge lies in distinguishing newly discovered truths from passing fancies.

Question 6: How Broad a Sample of Sources?

Aside from which sources an author uses, the question of how many also shapes our reaction to halachic writing. Some writers attempt to be comprehensive, others cite more selectively. Either can work in the hands of a capable writer, a fact that itself needs stressing, but the strategies leave us with different burdens in evaluating the results.

Those who quote widely can sometimes blur the weight appropriate to the various authors being cited. If twenty authors have addressed an issue, but half of them are of significantly lesser renown than the others, the halachic system sees their opinion as carrying less weight than the well-known ones. If the author of an halachic opinion ignores this, his conclusions becomes suspect as well.

This applies not only to unknowns, but within the well-known halachic pantheon. There is no cut-and-dried set of comparisons, but such names as Rashi, Rambam, Ramban, and Rashba generally have greater authority than writers such as R. Hayyim Cohen (the Tosafist), R. Shlomo of Montpellier (min ha-har), R. Hillel of Verona, and Maharah Or Zarua. I do not mean to denigrate or make light of the learning or piety of the latter group, only to note that the flow of halachic literature does apply a loose ranking system. Granting the unclear borderline, we can still note the danger of justifying conclusions by relying on authorities from the second group who are opposed by authorities in the first.

For the narrower citers, the main challenge is making sure not to omit importantly relevant sources. For an example so obvious that I cannot imagine it occurring, researching a topic without consulting Shulchan Aruch—even if later discussions allowed for a different ruling—would be a sure warning sign that the writer was not operating within an Orthodox perspective of halachah. [viii].

Question 7: Is the Reading of Sources Plausible?

Sources have to be used correctly to be actual sources. Often, this is a matter of plain Hebrew, with a consensus view of a text’s meaning and little room for error; other times, interpretational issues muddy the waters, as there is no clear definition of what constitutes a “proper” reading of a text. It is, as so much in life, the kind of thing we know when we see it, but others may know something else when they see that.

There is a charming story, almost definitely apocryphal, that makes the point. An Chasidic and Mitnagdic rabbi had decided to pair up in a chavruta, a study fellowship. Beginning at the first tractate of Talmud, the Mitnaged read “מאימתי קורין את שמע בערבין, when do we read the night time Shema?” to which the Chasid responded, “I read the text as מאימת ה’ [splitting the word מאימתי, from when, into two words] we read the Shema at night.” At which point, with no common ground on which to build, the Mitnaged shut his volume and the chavruta ended.

This comes up especially when a source uses a word or phrase without bothering to define it, taking the meaning so obvious as to not need further clarification. As the generations pass and language changes, the decoding of such earlier writings can often become fraught with disagreement. To take an example, the statement “Cooking is prohibited on Shabbat” might seem free of any need for elaboration. In fact, however, while the contemporary view of cooking focuses on the impact of heat on the food, the rules of Shabbat focus on the source of that heat. A simple term, ripe for misinterpretation.

Unfortunately, there are no clear parameters for reasonable reading of sources, making the answer to this question likely to be personal and subjective [ix]. Even so, it bears asking, as it reminds us of the goal of accurate interpretation of the system, in contrast to imposing our own concerns and beliefs on the texts at hand.

Question 8: Has the Author Stayed Faithful to the Intent of the Original Source?

Perhaps one way to gauge the accuracy of the reading of the text is to go beyond words and phrases to the intent of a source. Much like a movie advertisement that selectively excerpts a negative review, halachic sources can be quoted to effects their authors did not intend and would likely have opposed. Even more of a judgment call than the issues we have raised thus far, this is yet at least as important, since accurate halachic process always sees itself as faithfully representing the original intent of earlier texts. Proper extrapolation from, and application of, earlier ideas must be built on accurate citation and interpretation of those ideas.

The overeager writer will certainly be tempted to stretch sources beyond where that earlier author, were he here to weigh in, would have gone. Alternatively, the overly traditional writer might miss new directions the earlier writer left room for in his formulations. In reading contemporary halachic arguments, then, we need to ascertain the extent to which the contemporary writer has accurately conveyed the content and general thrust of the citation, in addition to its technical meaning.

I do not mean these questions as an exact checklist against which we can verify the Orthodoxy of halachic writings, but as a broad and purposely vague set of categories into which Orthodox halacha necessarily falls. Many whom I would not consider Orthodox, I am sure, see themselves as fitting perfectly into these parameters; others more halachically conservative than I might consider me as having moved outside of them. In trying to answer these questions, though, I believe we can keep the central issues of what makes halacha Orthodox in mind.

Having moved from theology to practice to legal decision-making, I hope to have shown the essence of the Orthodox world in its most pure expression, the extent to which it seeks a focus on God and building a life and a world that relate to God regularly, if not always. But Jews, like all humans, do not live by theory alone.

In the world of real life, the expression of Judaism is rarely, if ever, exactly as the sources of Judaism call for it. In the Orthodox world as well, certain practices and expressions of religiosity take on a role and centrality the system itself never designed. This phenomenon has both positive and negative aspects, and it is differentiating the two that we take up in the next series of posts, to come following what I hope is a happy and kosher Pesach for all.

[i] As noted by A. Rosenak, “Borderlines and Deviance in Orthodoxy: Conservative Halakhic Adjudication and Post-Modern Orthodoxy” in Orthodox Judaism: New Perspectives, p. 165. In contrast to my assumption and experience of them as exceptional in the world of Orthodox halachah, he takes them as proof that Orthodox rabbis, like Conservative ones, disregard earlier sources.

[ii] Here we also meet the question of prioritization. Granted that some halachic change is defensible, the person advocating it should, it seems to me, consider whether the change being advocated is among the most pressing concerns for moving Orthodoxy forward. If not, advocacy for that idea becomes a distraction that is best shooed away for a time when the more pressing issues have been solved or resolved.

[iii] Responsa Chacham Zvi, 167. The traditional view, first espoused by the highly authoritative R. Yosef Karo (author of the Shulchan Aruch), was that this was an example of a person from a place with one custom arriving in a place with differing ones. In such cases, halacha follows the well-known principle that the person follows the stringencies of both places; he can only discard the old place’s customs when he takes up permanent residence in the new place. Chacham Zvi argued instead that the two-day holiday should be seen as an extension of the system when the calendar was fixed by eyewitness testimony. Since, back then, anyone actually in Israel would know when the New Moon had been declared, such a person would only observe one day; the same should be true now. I argued for a similar rethinking of a topic in BaDaD 14, where I claimed that the Talmud and rishonim meant a different physical phenomenon when they referred to sunset than what we mean by that term.

[iv] Indeed, the major rabbinic authorities, such as Mishnah Berurah, Aruch haShulchan, and R. Moshe Feinstein, seem not to even take account of his suggestion.

[v] In the introduction to his חפץ חיים (Chafetz Chayim) on the laws of slander and gossip, R. Yisrael Meir Kagan feels the need to defend his reliance on Rabbenu Yonah’s שערי תשובה, Gates of Repentance. Despite its being an exhortative work, he notes, Rabbenu Yonah wrote carefully in halachic terms as well.

[vi] Examples include Besamim Rosh, a set of responsa apparently forged in the name of the authoritative R. Asher b. Yehiel of the early fourteenth century, the Zohar, which met early opposition (in our times, many will cite it as fully authoritative, but not all); and the last volume of Iggerot Moshe, given R. Feinstein’s age and perhaps physical condition at the time they were written. An author’s lack of renown in his own era might also limit his halachic influence; such has largely been the case with the works of R. Menachem haMeiri, most of which only achieved any prominence in the 20th century. Similarly, even as the writings of R. Hayyim Hirschensohn garner great attention among Israeli academics, his halachic authority is unclear. Interestingly, Rosenak, p. 137, notes that Hirschensohn’s halachic positions bear similarities to those of Conservative decisors.

[vii] Rosenak, p. 154-5, assumes that the Modern Orthodox commitment to modernity includes accepting all the truths of modern society, and relates it to Rambam’s embrace of philosophy. I disagree with both claims; as far as I understand it, Orthodox Jews accept only those outside texts or ideas, modern, Aristotelian, or otherwise, that capture truths that, once noted, are seen to be—to borrow the formulation of my teacher, R. Aharon Lichtenstein– congruent, confluent, or convergent with Orthodox ones.

[viii] Rosenak, e.g., notes a tendency among Conservative writers to dispense with later literature in favor of finding the original intent of the Talmud. Among other issues, this violates the principle suggested here, that the sources quoted have to include the major relevant ones.

[ix] In a non-halachic context, I showed some of this kind of difference in my doctoral dissertation, Writing Midrash Avot, available at www.yasharbooks.com/open/#current.