Who Do We Pasken Like?

Who Do We Pasken Like?

Thoughts on Rabbi Yehudah B. Ilan’s “Following the Rulings of the Rambam: A Recent Discussion of Consistency in Deciding Halakhah”

At https://forthodoxy.wordpress.com/2017/07/01/following-the-rulings-of-the-rambam-a-recent-discussion-of-consistency-in-deciding-halakhah/ (with full pdf at https://forthodoxy.files.wordpress.com/2017/07/a-recent-exchange-1.pdf), Rabbi Yehudah B. Ilan presents a dialogue in which he defends himself from the argument that “we don’t pasken like the Rambam.”

Rabbi Ilan correctly, and importantly, notes that the vast majority of rulings in Shulhan Arukh are consistent with Rambam’s rulings and that plenty of rabbis follow Rambam on plenty of different subjects.  More importantly, Rabbi Ilan lays waste to the myth that anyone actually consistently follows the opinions of any one rabbi, be it Rabbi Yosef Karo (author of Shulhan Arukh), Rabbi Moshe Isserless (Ashkenazi glossator of Shulhan Arukh), or Rabbi Yisrael Meir Kagan (author of the Mishnah Berurah commentary on Shulhan Arukh).  This observation is clearly correct.  In fact, I suspect that, in a case of the tail wagging the dog, the rabbis who are considered most authoritative are considered to be so because their rulings happened to have reflected common practice, rather than common practice following their rulings because they were authoritative.  In those cases where the rabbi objected to common practice, they were not necessarily heeded.  For instance, by and large Asheknazi Orthodoxy doesn’t “pasken like” like the Mishnah Berurah, who decried the practice of waiting until marriage to wear a tallit (See MB 17:10).

Rabbi Ilan’s interlocutor writes that “if one would hold like the Rambam then consistency would dictate that he or she not use an eruv” and says that Rabbi Ilan “pasken[s] like Rav Kapach.”   The argument seems to be that one must consistently follow the rulings of a single rabbi.  True sages raise students who are trained to think independently and thereby to advance understanding of Torah and halakhah.  Those teachers empower their students to disagree with them.  Students of such teachers revere and respect their teachers, but are trained not to merely defer to them.  This is certainly what my teachers at ITJ taught me and what Rav Kapach, one of the great halakhic luminaries of the 20^th century, taught Rabbi Ilan.

Rabbi Ilan correctly argues that the expectation that one consistently follow the rulings of a single rabbi lacks Talmudic basis.  I would add that such an expectation trivializes what it means genuinely to “follow” certain rabbis and in particular to follow Rambam.  In his introduction to Mishneh Torah Rambam speaks about how no halakhic authority is bound to follow any other post-Talmudic authority’s decisions and that, instead, halakhah follows whoever has the convincing argument based on the sources.  While slavishly adhering to Rambam’s rulings might have the appearance of “following” Rambam, in fact it is anything but consistent with Rambam’s approach to halakhah.  As a side note, a similar attitude is often heard toward Rashi’s interpretations of Torah.  One often hears the argument, “how can you disagree with Rashi’s interpretation?”  I often retort that we can disagree with Rashi because, among other things, we have documented evidence that Rashi believed his commentary could stand improvement and because he influenced his grandson to continue the search for better understandings of the text (see Rashbam Genesis 37:2).  Those who simply assume Rashi’s interpretation of a text is correct, rather than using all available resources to consider other possible interpretations, are doing anything but “following” Rashi.

I must, however, take issue with Rabbi Ilan’s argument that “pesikat halakhah bizemanenu” (deciding law in our days) is “cherry-picking kulot” (leniencies).  While I agree that there is Talmudic basis to prefer lenient rulings, I think it is far more important for a rabbi to analyze the sources and apply them to the halakhic issue in question through a consistent methodology, regardless of whether that method results in humrah (stringency) or kulah in any particular situation.  Admittedly, legal principles such as “safek d’rabanan l’hakel,” that matters of legal uncertainty in areas of rabbinic law are decided leniently, may make lenient rulings more common.  However, it is worth remembering that the Mishnah dedicates a chapter and half to rulings in which Beth Hillel were stricter than Beth Shamai (Eduyot 4:1-5:5).  Rabbi Ilan’s quotation regarding Rabbi Yehiel Michael Epstein (author of Arukh haShulhan), demonstrates the latter’s awareness of a pernicious humrah bias in his day (which no doubt continues today), and that, for Rabbi Epstein, leniency was the default principle, not that it was the goal.

Based on his comment on September 25, 2017, it seems that perhaps Rabbi Ilan undervalues philosophical consistency in halakhic decision making (though I could be misreading him).  While it is true that, as Ralph Waldo Emerson wrote, “a foolish consistency is the hobgoblin of little minds,” there is still a lot to be said for philosophical consistency.  The fact that the rabbis established principles for interpreting the Torah and numerous logical principles of legal analysis in the Talmud certainly indicates an interest in philosophical consistency.  In his September 25 comment, Rabbi Ilan notes that “concerns for avoiding contradictions are rarely, if ever expressed,” which is a claim which would require much more research.  To the extent this claim is true, perhaps this is the result of the fact that halakhic decision making involves many factors, so that an apparently inconsistent ruling often results from the rabbi giving weight to a particular consideration in issue B that might not have been a significant factor with regard to issue A.

Finally, Rabbi Ilan argues that Tosefta Eduyot 2:3, which says that one should not follow the strict opinions of both Beth Hillel and Beth Shammai, nor the lenient opinions of both schools, does not require consistently following the opinions of a particular rabbi.[1]  While I agree with Rabbi Ilan’s conclusion, I believe there is a much more powerful argument in this regard which in fact would strengthen the overall argument.

Rabbi Ilan argues that Tosefta Eduyot 2:3 does not relate to the discussion since it refers to disputes between Beth Shamai and Beth Hillel, since the halakhah has been firmly established (in almost all cases) in favor of Beth Hillel so that anyone who finds viable leniencies today is only finding leniencies that derive from Beth Hillel’s rulings.  This is true enough, but the Talmud in Eruvin 6b-7a quite reasonably applies the logic of this Tosefta to disagreements between other sages,[2] so the question of whether accepting a certain rabbi’s leniencies while not accepting all of that rabbi’s strictures would render one a rasha (evildoer) stands.

The Talmud introduces a very important qualification to the understanding of this Tosefta which is of particular significance to this discussion:

אמר רב שיזבי: כי לא עבדינן כחומרי דבי תרי – היכא דסתרי אהדדי  … אבל היכא דלא סתרי אהדדי – עבדינן.

Rav Shizbi stated: When do we not act in accordance with the strictures of two opinions?  When they contradict each other.  But where they do not contradict, we may act [in accordance with both strictures].[3]

Presumably, Rav Shizbi’s argument applies equally to lenient rulings – that as long as one is internally consistent by applying both the strict and lenient implications of any given ruling, one need not follow all the strict rulings of a certain rabbi if one agrees with a certain lenient ruling of that rabbi.

[1] The Tosefta reads:

לעולם הלכה כדברי בית הילל והרוצה להחמיר על עצמו לנהוג כחומרי בית שמאי וכחומרי בית הילל על זה נאמ’ הכסיל בחושך הולך התופס קולי בית שמאי וקולי בית הילל רשע אלא או כדברי בית שמאי כקוליהון וכחומריהון או כדברי בית הלל כקוליהון וכחומריהון:

The halakhah follows the words of Beth Hillel.  One who wishes to be strict upon oneself and to follow the strictures of both Beth Hillel and Beth Shammai, regarding this person it is said “the fool walks in darkness” (Ecclesiastes 2:14), while one who accepts the leniencies of Beth Shamai and the leniencies of Beth Hillel is evil – [one must follow] either Beth Shammai in accordance with their leniencies and strictures, or Beth Hillel in accordance with their leniencies and strictures.

 

[2] See particularly the ואיבעית אימא at the top of BT Eruvin 7a, the logic of which seems to be the basis of the question on 6a as to how the Nehardeans could accept Rav’s strict ruling over Samuel’s leniency on one issue and Samuel’s strict ruling over Rav’s lenient ruling  on another issue.  See further footnote 3 below.

[3] BT Eruvin 7a.  The Talmud provides the following examples: On 7a the Talmud tells us that the logic behind an argument between Beth Hillel and Beth Shammai as how much of a corpse must be missing in order to cause it to no longer confer impurity is the same logic behind their debate as to how much of an animal’s body must be missing to render it treif (unkosher).  The Talmud tells us that one must apply the same standard to laws of impurity (requiring a larger part of the body to be missing would make more corpses confer impurity, hence a stricture) as to the laws of kashruth (ruling that more of a body must be missing to render it unkosher would be a leniency).  Similarly, the Talmud uses this logic to explain how the people of Nehardea (on 6b) required a certain alleyway to require doors in order to permit carrying on Shabbat, a result which could only come from accepting Rav’s ruling that such an alleyway is considered “open” (as opposed to Samuel who would rule it to be considered a “closed” alleyway) and Samuel’s ruling that an “open” alleyway requires doors (as opposed to Rav’s ruling that “open” alleyways only require a doorway).