Volume 9 Number 10
                       Produced: Mon Sep  6 11:20:09 1993

Subjects Discussed In This Issue: 

Halakhic Agendas
         [Anthony Fiorino]
Rabbinical agendas
         [Dov (Bruce) Krulwich]
Tefilla Be-Tzibbur
         [Israel Botnick]
Women and Mitzvot
         [David Charlap]


From: Anthony Fiorino <fiorino@...>
Date: Thu, 26 Aug 93 16:02:31 -0400
Subject: Halakhic Agendas

David Novak wrote:

> Eitan takes issue with my argument . . . saying these agendas are really
> "halachic inyanim," etc.  No.  In a purely intellectual discussion, as any
> student of philosophy knows, one may run around in circles by arguing
> about categorical definitions.

Well, I guess I'm just not a student of philosophy then.  Which is nice,
because it means that I am entitled to adhere to my categorical
definitions, because they are not a semantic game but are in fact the
truth.  There are halachic concepts (ie, hefsed meruba [a large financial
loss], shalom bayit [a peaceful house]), and there are extra-halachic
concepts (ie, the pronouncements of psychology and sociology, such as the
idea that one is morally free to choose one's own sexual orientation). 
A posek will invoke the former, *not* the latter, in arriving at a
halachic decision.

David claims that Rav Moshe had an agenda, and thus found leniencies
regarding agunot.  As Yosef Bechhofer pointed out long ago, "Chazal were
lenient in the case of Agunos (but even there not always -- as in one who
is lost at sea)."  Thus, the "agenda" of being lenient in the case of
agunot is already a well established principle in halachic decision-making.

But there is something more which disturbs me; it is, I think, the very
broad manner in which David is using the term "agenda." I don't know to
which of Rav Moshe's responsa Davis is refering, so I can only discuss
this in a general sense.  It is clear that there are subjective elements
in halachic decision-making -- this was never denied, but certainly does
not constitute an "agenda." Aaron Kirschenbaum has astutely noted that
Halacha must "negotiate the tension between its static rules and the
dynamic flow of events" ("Subjectivity in Halakhic Decision-Making" in
_Rabbinic Authority and Personal Autonomy_), and each posek must negotiate
this tension when arriving at a decision.  A posek, depending on his
disposition, his derech halimud [way of learning], his mesorah
[tradition], may read the same set of sources differently than another
posek.  Pressing situations and external crises also influence decisions
-- thus, a psak rendered in one time and place may not be applicable to
another.  The Ritva (on Eruvin 13b) wrote "when Moshe ascended to receive
the Torah, it was demonstrated to him that every matter was subject to 49
lenient and 49 stringent approaches.  When he queried about this, G-d
responded that the *scholars* of each generation were given the authority
to decide among those perspectives in order to establish the normative
halacha" (translation from R. M. Rosenzweig, emphasis mine). 

There are 2 major caveats here.  The first is the highlighted word
scholars.  It is not just anyone with smicha who is allowed to determine
halacha.  As has been noted by Jonathan Sacks "The Jewish traditional
community has consistantly insisted that its halakhic decision-makers be
men of impeccable honesty, intense personal piety and profound faith, so
that even the subjective element in their decisions may be confidently
accepted as reflecting the 'true intent of the divine Legislator and His
successors.'" ("Creativity and Innovation in Halachah," in _Rabbinic
Authority_).  The second caveat is that this is not permission to apply
any methodology or predetermined goal onto the process of determining
halacha.  Rav Moshe himself wrote (Igrot Moshe Orach Chaim 4:49) that it
is misconceived and heretical to apply public pressure to bring about
changes in halacha; Torah is eternal and does not yield to local
conditions or public opinion.

Thus, there is that balance, noted by R. Kirschenbaum, between the
rigidity and integrity of the sytem of laws, and the application of those
laws to individual and exceptional cases; between the Ritva's statement
above, and Rav Moshe's.

> If we are to live in a world of stringent halacha only, a world where
> the inner logic of halacha governs, a world where the "halachic dialectic"
> is more important than people's needs, all may rest assured that I will be
> crying rather than applauding.

Who ever said that a world in which the halachic dialectic governs is a
world of halachic stringencies only?  The halachic dialectic contains within
it elements which lead to both stringencies and leniencies.  

I may not be a philosopher, but I am a scientist, and every scientist
knows that a major test of a hypothesis is its ability to predict.  If
David's model of the halachic process, which is one in which people's
needs are more important that the halachic dialectic, were correct, then
there would never be any stringent decisions.  For instance, Rav Moshe's
refusal to accept financial and psychological stress as legitimate reasons
for allowing the use of birth control -- if, as David claims, poskim
placed people's needs before the halachic dialectic, then Rav Moshe could not
have arrived at this psak.  He simply would have seen the poor suffering
souls before him, and allowed the birth control.  However, my model, in
which the halachic dialectic is applied to the situation by a halachic
authority, accounts for the generation of both stringencies and

R. Haym Soloveitchik has expressed this in a voice infinitely more
authoritative than mine: "If law is conceived of, as religious law must
be, as a revelation of the divine will, then any attempt to align that
will with human wants, any attempt to have reality control rather than
itself be controlled by the divine norm, is an act of blasphemy and is
inconceivable to a G-d-fearing man." ("Religious Change: the Medieval
Ashkenazic Example" AJS Review 12:2, 1987)

Eitan Fiorino


From: Dov (Bruce) Krulwich <krulwich@...>
Date: Fri, 3 Sep 93 17:07:04 -0400
Subject: Rabbinical agendas

There's been alot of discussion lately abou Rabbinical agendas and their
application to psak [Halachic decision-making].  I've felt strongly in
reading through the various thoughts people have written that there's a
major point being overlooked.

Suppose we were to take it as an assumption that poskim should take
societal agendas into account to whatever degree possible (by
introducing the relevant halachic concepts, as Eitan says, or by
searching for any possible reason to permit something, as others have
suggested).  Even if we take that as a given, there is still no reason
for us to expect that in every specific instance (or in any specific
instance) our Rabbaim will pasken in line with what we want.

To put it another way, even if a Rav takes societal agendas, and
personal ones, etc, into account in his decision-making, he will still
sometimes have to say "no."  Even if a Rav tries to be lenient in order
to fit the needs of his constituents, he will still sometimes have to
say "no."  Perhaps before accusing Rabbaim of having a wrong approach to
psak, we should consider that they may be taking everything into account
that they can, and are nonetheless saying "no."

Dov (Bruce) Krulwich


From: <icb@...> (Israel Botnick)
Date: Wed, 25 Aug 93 10:35:39 EDT
Subject: Tefilla Be-Tzibbur

In several recent postings, there has been a difference of opinion as to
whether tefilla be-tzibbur [Public Prayer] is a CHOVAS HA-YACHID
[obligation for an individual to find or gather 9 others for prayer] or
a CHOVAS HA-TZIBBUR [obligation for the community (as a whole), to have
tefilla be-tzibbur]. I would like to suggest that both opinions are
correct and that each of these obligations exist independently.

The following sources (many have been quoted already) suggest the
existence of a chovas ha-tzibbur.

1) The talmud states (Brachot 7b) that when HKBH comes to a synagogue
and finds that there is no minyan[quorum for prayer], he responds
'lama'h bahtee ve'ain ish' - why did I come and noone else arrived. This
passage seems to be discussing a communal obligation to have tefilla
be-tzibbur. Note that the gemoro does NOT say that all those individuals
who slept late are asked why they didn't come. The gemoro only discusses
HKBH being makpid [holding an objection] about the lack of the EXISTENCE
of the minyan which is the responsibility of the tzibbur [congregation]
as a whole, not of any individual.

2) The shulchan aruch (orach chaim 55)states that if there is difficulty
gathering a minyan, the leaders of the community can impose fines on
those who don't show up. This fine is not to get people to fulfill a
chovas yachid [individual obligation].  We never see such fines when the
minyan is plentiful. The fine here is a tool of the tzibbur to help them
fulfill their communal obligation.

3) It is interesting that the shulchan aruch (orach chaim 90) says that
one should try to be one of the 1st 10 to synagogue.  As far as one's
individual obligation is concerned, what is the difference between being
number 10 or 11 (assuming you come on time). It seems then, that if you
are in the first 10, you get extra credit for being one of those who
"made" the minyan and thus contributed to the obligation of the tzibbur
to maintain tefilla betzibbur.

As far as the individual's obligation to pray with a tzibbur, this is
clearly evident from the following 2 gemoros:

1) pesachim 46a - legabel ultefilah daled milin [for kneading and for
prayer one is required to travel 4 mil].  According to Rashi and Tosfot,
prayer here refers to praying with a tzibbur. If not for the existence
of an inherent INDIVIDUAL obligation to pray with a tzibbur, there would
certainly be no obligation to walk 4 mil to find one. (this obligation
exists even when there are already 10, thus it is not related to the
chovas tzibbur).

2) brachot 7b - R. Yitzchok said to R. Nachman howcome you didn't come
to synagogue? His response was "I was feeling weak". R. Yitzchok then
said why didn't you gather 10 people in your house to pray? His response
was that it was too much trouble for him.

 From the fact that R. Yitzchok expected R. Nachman to GATHER 10 people
together for his individual prayer, it is evident that he is obligated
to pray with a tzibbur.  The Magen Avraham by the way points to this
gemara as an important source for how much trouble one is required (or
not required) to go through to find/gather a minyan.

BTW - all of the above is only in regard to what is classically defined
as tefilla betzibbur - namely the recitation of the silent shemona esreh
by 10 men together. Devarim shebikedusha and the chazarat hashatz
[repetition of the shemona esreh] are treated separately by poskim as to
whether the obligation is on the individual or on the tzibbur.

Israel Botnick


From: <dic5340@...> (David Charlap)
Date: Wed, 25 Aug 93 16:02:00 -0400
Subject: Women and Mitzvot

I did something I should not have done here.  I forgot one of the
examples that the Gemara quoted, and filled in one that I thought would
be good enough, and it was not.  So as not to detract from the rest of
the material, I am posting this to point out the error that is mine.

<dic5340@...> (David Charlap) writes:
>Well, I did a bit of research into this last week.  Here's what I
>found:  (Any errors are mine, any truth is from the Gemara)
>There is a mishna in Gemara Kidushin (29a) that states that women are
>exempt from positive time-bound commandments.
> ...
>It goes on to cite examples of non-time-bound mitzvot that women are
>exempt from (like procreation), and time-bound mitzvot that women are
>obligated in (like Shabbat), and states that this is not a
>contradiction - but it is a general rule with a few exception to it.

The example of Shabbat given was mine.  It is a bad example.  It was
pointed out to me in e-mail that Shabbat may actually be a negative
mitzvah, which women are obligated in anyway.

The first example (of procreation) as being a non-time-bound mitzvah
that women are exempt from is a proper example.  I believe the Gemara
does use that one as well.


End of Volume 9 Issue 10