{"id":1748,"date":"2018-08-27T08:49:48","date_gmt":"2018-08-27T12:49:48","guid":{"rendered":"https:\/\/utj.org\/viewpoints\/?p=1748"},"modified":"2018-08-28T11:20:23","modified_gmt":"2018-08-28T15:20:23","slug":"who-do-we-pasken-like","status":"publish","type":"post","link":"https:\/\/utj.org\/viewpoints\/2018\/08\/who-do-we-pasken-like\/","title":{"rendered":"Who Do We Pasken Like?"},"content":{"rendered":"

Who Do We Pasken Like?<\/strong><\/p>\n

Thoughts on Rabbi Yehudah B. Ilan’s \u201cFollowing the Rulings of the Rambam: A Recent Discussion of Consistency in Deciding Halakhah\u201d<\/p>\n

At https:\/\/forthodoxy.wordpress.com\/2017\/07\/01\/following-the-rulings-of-the-rambam-a-recent-discussion-of-consistency-in-deciding-halakhah\/<\/a> (with full pdf at https:\/\/forthodoxy.files.wordpress.com\/2017\/07\/a-recent-exchange-1.pdf<\/a>), Rabbi Yehudah B. Ilan presents a dialogue in which he defends himself from the argument that \u201cwe don\u2019t pasken like the Rambam.\u201d<\/p>\n

Rabbi Ilan correctly, and importantly, notes that the vast majority of rulings in Shulhan Arukh are consistent with Rambam\u2019s rulings and that plenty of rabbis follow Rambam on plenty of different subjects.\u00a0 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).\u00a0 This observation is clearly correct.\u00a0 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.\u00a0 In those cases where the rabbi objected to common practice, they were not necessarily heeded.\u00a0 For instance, by and large Asheknazi Orthodoxy doesn\u2019t \u201cpasken like\u201d like the Mishnah Berurah, who decried the practice of waiting until marriage to wear a tallit (See MB 17:10).<\/p>\n

Rabbi Ilan\u2019s interlocutor writes that \u201cif one would hold like the Rambam then consistency would dictate that he or she not use an eruv\u201d and says that Rabbi Ilan \u201cpasken[s] like Rav Kapach.\u201d\u00a0 \u00a0The argument seems to be that one must consistently follow the rulings of a single rabbi.\u00a0 True sages raise students who are trained to think independently and thereby to advance understanding of Torah and halakhah.\u00a0 Those teachers empower their students to disagree with them.\u00a0 Students of such teachers revere and respect their teachers, but are trained not to merely defer to them. \u00a0This is certainly what my teachers at ITJ taught me and what Rav Kapach, one of the great halakhic luminaries of the 20th<\/sup> century, taught Rabbi Ilan.<\/p>\n

Rabbi Ilan correctly argues that the expectation that one consistently follow the rulings of a single rabbi lacks Talmudic basis.\u00a0 I would add that such an expectation trivializes what it means genuinely to \u201cfollow\u201d certain rabbis and in particular to follow Rambam.\u00a0 In his introduction to Mishneh Torah Rambam speaks about how no halakhic authority is bound to follow any other post-Talmudic authority\u2019s decisions and that, instead, halakhah follows whoever has the convincing argument based on the sources.\u00a0 While slavishly adhering to Rambam\u2019s rulings might have the appearance of \u201cfollowing\u201d Rambam, in fact it is anything but consistent with Rambam\u2019s approach to halakhah.\u00a0 As a side note, a similar attitude is often heard toward Rashi\u2019s interpretations of Torah.\u00a0 One often hears the argument, \u201chow can you disagree with Rashi\u2019s interpretation?\u201d\u00a0 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).\u00a0 Those who simply assume Rashi\u2019s interpretation of a text is correct, rather than using all available resources to consider other possible interpretations, are doing anything but \u201cfollowing\u201d Rashi.<\/p>\n

I must, however, take issue with Rabbi Ilan\u2019s argument that \u201cpesikat halakhah bizemanenu\u201d (deciding law in our days) is \u201ccherry-picking kulot\u201d (leniencies).\u00a0 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.\u00a0 Admittedly, legal principles such as \u201csafek d\u2019rabanan l\u2019hakel,\u201d that matters of legal uncertainty in areas of rabbinic law are decided leniently, may make lenient rulings more common.\u00a0 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).\u00a0 Rabbi Ilan\u2019s quotation regarding Rabbi Yehiel Michael Epstein (author of Arukh haShulhan), demonstrates the latter\u2019s 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.<\/p>\n

Based on his comment on September 25, 2017<\/a>, it seems that perhaps Rabbi Ilan undervalues philosophical consistency in halakhic decision making (though I could be misreading him).\u00a0 While it is true that, as Ralph Waldo Emerson wrote, \u201ca foolish consistency is the hobgoblin of little minds,\u201d there is still a lot to be said for philosophical consistency.\u00a0 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.\u00a0 In his September 25 comment, Rabbi Ilan notes that \u201cconcerns for avoiding contradictions are rarely, if ever expressed,\u201d which is a claim which would require much more research.\u00a0 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.<\/p>\n

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]<\/a>\u00a0 While I agree with Rabbi Ilan\u2019s conclusion, I believe there is a much more powerful argument in this regard which in fact would strengthen the overall argument.<\/p>\n

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\u2019s rulings.\u00a0 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]<\/a> so the question of whether accepting a certain rabbi\u2019s leniencies while not accepting all of that rabbi\u2019s strictures would render one a rasha<\/em> (evildoer) stands.<\/p>\n

The Talmud introduces a very important qualification to the understanding of this Tosefta which is of particular significance to this discussion:<\/p>\n

\n

\u05d0\u05de\u05e8 \u05e8\u05d1 \u05e9\u05d9\u05d6\u05d1\u05d9: \u05db\u05d9 \u05dc\u05d0 \u05e2\u05d1\u05d3\u05d9\u05e0\u05df \u05db\u05d7\u05d5\u05de\u05e8\u05d9 \u05d3\u05d1\u05d9 \u05ea\u05e8\u05d9 – \u05d4\u05d9\u05db\u05d0 \u05d3\u05e1\u05ea\u05e8\u05d9 \u05d0\u05d4\u05d3\u05d3\u05d9 \u00a0… \u05d0\u05d1\u05dc \u05d4\u05d9\u05db\u05d0 \u05d3\u05dc\u05d0 \u05e1\u05ea\u05e8\u05d9 \u05d0\u05d4\u05d3\u05d3\u05d9 – \u05e2\u05d1\u05d3\u05d9\u05e0\u05df.<\/p>\n

Rav Shizbi stated: When do we not act in accordance with the strictures of two opinions?\u00a0 When they contradict each other.\u00a0 But where they do not contradict, we may act [in accordance with both strictures].[3]<\/a><\/p>\n<\/blockquote>\n

Presumably, Rav Shizbi\u2019s argument applies equally to lenient rulings \u2013 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.<\/p>\n

[1]<\/a> The Tosefta reads:<\/p>\n

\u05dc\u05e2\u05d5\u05dc\u05dd \u05d4\u05dc\u05db\u05d4 \u05db\u05d3\u05d1\u05e8\u05d9 \u05d1\u05d9\u05ea \u05d4\u05d9\u05dc\u05dc \u05d5\u05d4\u05e8\u05d5\u05e6\u05d4 \u05dc\u05d4\u05d7\u05de\u05d9\u05e8 \u05e2\u05dc \u05e2\u05e6\u05de\u05d5 \u05dc\u05e0\u05d4\u05d5\u05d2 \u05db\u05d7\u05d5\u05de\u05e8\u05d9 \u05d1\u05d9\u05ea \u05e9\u05de\u05d0\u05d9 \u05d5\u05db\u05d7\u05d5\u05de\u05e8\u05d9 \u05d1\u05d9\u05ea \u05d4\u05d9\u05dc\u05dc \u05e2\u05dc \u05d6\u05d4 \u05e0\u05d0\u05de’ \u05d4\u05db\u05e1\u05d9\u05dc \u05d1\u05d7\u05d5\u05e9\u05da \u05d4\u05d5\u05dc\u05da \u05d4\u05ea\u05d5\u05e4\u05e1 \u05e7\u05d5\u05dc\u05d9 \u05d1\u05d9\u05ea \u05e9\u05de\u05d0\u05d9 \u05d5\u05e7\u05d5\u05dc\u05d9 \u05d1\u05d9\u05ea \u05d4\u05d9\u05dc\u05dc \u05e8\u05e9\u05e2 \u05d0\u05dc\u05d0 \u05d0\u05d5 \u05db\u05d3\u05d1\u05e8\u05d9 \u05d1\u05d9\u05ea \u05e9\u05de\u05d0\u05d9 \u05db\u05e7\u05d5\u05dc\u05d9\u05d4\u05d5\u05df \u05d5\u05db\u05d7\u05d5\u05de\u05e8\u05d9\u05d4\u05d5\u05df \u05d0\u05d5 \u05db\u05d3\u05d1\u05e8\u05d9 \u05d1\u05d9\u05ea \u05d4\u05dc\u05dc \u05db\u05e7\u05d5\u05dc\u05d9\u05d4\u05d5\u05df \u05d5\u05db\u05d7\u05d5\u05de\u05e8\u05d9\u05d4\u05d5\u05df:<\/p>\n

The halakhah follows the words of Beth Hillel.\u00a0 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 \u201cthe fool walks in darkness\u201d (Ecclesiastes 2:14), while one who accepts the leniencies of Beth Shamai and the leniencies of Beth Hillel is evil \u2013 [one must follow] either Beth Shammai in accordance with their leniencies and strictures, or Beth Hillel in accordance with their leniencies and strictures.<\/p>\n

 <\/p>\n

[2]<\/a> See particularly the \u05d5\u05d0\u05d9\u05d1\u05e2\u05d9\u05ea \u05d0\u05d9\u05de\u05d0 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\u2019s strict ruling over Samuel\u2019s leniency on one issue and Samuel\u2019s strict ruling over Rav\u2019s lenient ruling \u00a0on another issue.\u00a0 See further footnote 3 below.<\/p>\n

[3]<\/a> BT Eruvin 7a.\u00a0 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\u2019s body must be missing to render it treif<\/em> (unkosher).\u00a0 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).\u00a0 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\u2019s ruling that such an alleyway is considered \u201copen\u201d (as opposed to Samuel who would rule it to be considered a \u201cclosed\u201d alleyway) and Samuel\u2019s ruling that an \u201copen\u201d alleyway requires doors (as opposed to Rav\u2019s ruling that \u201copen\u201d alleyways only require a doorway).<\/p>\n

 <\/p>\n\n

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In his introduction to Mishneh Torah Rambam speaks about how no halakhic authority is bound to follow any other post-Talmudic authority\u2019s decisions and that, instead, halakhah follows whoever has the convincing argument based on the sources.\u00a0 While slavishly adhering to Rambam\u2019s rulings might have the appearance of \u201cfollowing\u201d Rambam, in fact it is anything but consistent with Rambam\u2019s approach to halakhah.\u00a0 … [Similarly t]hose who simply assume Rashi\u2019s interpretation of a text is correct, rather than using all available resources to consider other possible interpretations, are doing anything but \u201cfollowing\u201d Rashi.<\/p>\n","protected":false},"author":13,"featured_media":1749,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[82],"tags":[],"coauthors":[89],"class_list":["post-1748","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-halakhah"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/posts\/1748","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/users\/13"}],"replies":[{"embeddable":true,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/comments?post=1748"}],"version-history":[{"count":4,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/posts\/1748\/revisions"}],"predecessor-version":[{"id":1753,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/posts\/1748\/revisions\/1753"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/media\/1749"}],"wp:attachment":[{"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/media?parent=1748"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/categories?post=1748"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/tags?post=1748"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/utj.org\/viewpoints\/wp-json\/wp\/v2\/coauthors?post=1748"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}