Halachic Process, addenda

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With this post, I am closing the series (for now) with three other thoughts that came up during the Avodah discussion, but aren’t part of my core thesis.


The concept of minhag hamaqom impacts two different things — actual minhagim and local pesaqim. I’m now addressing only the latter. A community can’t survive with too much variation, so we standardize local pesaq on many issues.To my mind, this means that a kehillah’s members are limited in the “angle” at which they look at the Torah. One is obligated to follow minhag hamaqom, and if one is going to be consistent, one is limited to derakhim that include that element in their “shadow”.Nowadays that tends to run in the reverse — people who have strong opinions one way or the other pick their kehillah. Someone chooses to be chassidish or to join Rabbi Soloveitchik’s followers at YU, I even heard of people leaving “Breuer’s” (!), and the pesaqim follow.

This also impacts the parameters of pesaq shopping. If one isn’t careful, one could be left with an inconsistent set of rulings. The image they live by doesn’t represent Devar H’ because they have bits of a shadow as seen from one lighting, and bits as seen from another — producing something that could never be cast by the actual object.

A second problem with pesaq shopping is not only must a person be consistent, an object can assume a particular chalos (halachic state). And because we all share the same universe (within limits, pace REED or Slabodka hashkafos), that state can only be one thing. When a rav is proclaiming a chalos, pesaq shopping is impossible. When he is proclaiming only a duty or a prohibition on the person (and not a chalos that causes them) you have some lattitude.Personally, I would think that latitude would require:(1) One must be motivated to perfect one’s avodah rather than adding ease (or glory of being more machmir than the neighbors).(2) One still must go back to the first rav to close the circle. This isn’t so much a chiyuv direcly because of the rules of pesaq, but midinei kavod harav one is better to be inconsistent than to imply disrespect of the first rav.


Chana Luntz (RtCL, in Avodah-speak) introduced the notion of bottom-up pesaq. In one post she writes:

In Yevamos 116b the gemora brings a mayse shehaya about a woman whose husband was bitten by a snake when he went out to the wheat harvest, and she came and testified to beis din that her husband had died, and they went and checked it out and indeed he had died, and at that point they legislated that a woman is believed if she comes to beis din and says her husband has died to allow her to remarry. And the Mishna there brings a machlokus between Beis Hillel and Beis Shammai regarding whether or not they believe a woman just in a case similar to the mase shehaya or not – for example if the woman and her husband went to midinas hayam and she testified about his death there, with Hillel saying no it must be similar to the mase shehaya and Beis Shamai saying not necessarily, and Beis Hillel eventually retracted and agreed to the position of Beis Shamai.

And in another:

… I find that while your argument that pessaq worked and sometimes may still work (that needs further analysis) partly bottom up, this in no way justifies the shoel looking for a particular outcome.

In fact, from another sugya, in Ketubot 23a, about a woman, and later two who says that she was imprisoned but remained tehorah, we see how it was preferable to manipulate the reality (making sure that the daughters of Mar Shemuel came to beit din while the captors were kept at a distance — a weird situation, where the captors would be willing to wait at a distance. Either the captors had been caught, or they were government forces confident that the women could not disappear under their watch, having numerous forces with them. The latter is indicated by Rashi s.v. Deatyyan liNharda’ah, where he explains that the women came to be redeemed).

AIUI, “bottom-up” here is used to refer to two elements:

1- Building a pesaq based on case law, rather than starting from Divrei E-lokim Chaim and applying to the case.Here I would say it is “bottom up”, but it’s not instead of top-down. If we accept the Maharal’s notion that pesaq is the art of mapping DEC to a finite reality, then we will map things differently as our reality, knowledge of reality, and attitude toward reality change.

When the woman’s report that her husband was killed by a snake was proven to be true, Chazal realized they until then had a gap in their knowledge of how women behave, and whether the report would in general be reliable. The lenient ruling wasn’t a breach of applying divrei E-lokim Chaim downward as much as a shift in what that downward was understood to be.

So, I still think halakhah is more like Platonic Idealism than Aristotilian Realism. Truth becomes a set of instances, rather than one collects instances, finds a pattern, and constructs a truth. What changed is how one does the “becomes” as one knows more, not the direction of application.

2- Taking the human cost into account.

Personally, I wouldn’t consider this different in kind to “top down”. One factor that needs to be weighed, residing well within our “triangle”, is human cost. Mar Shemuel isn’t taken to task for applying strict ideals without accommodating the human reality as much as ignoring a whole subsection of those ideals. Whether it’s the textual rule of hefsed meruba (undo personal cost) or of not needing to spend more than 20% on an asei, there are many such formalizations. In the realm of aggadic values, it’s easy to see cases where the person’s sacrifice offsets any climbing up the spiritual ladder one might gain by being machmir. And of course, there could well be a pragmatic history that in this case we protected the person. It isn’t a concern from the bottom that we are imposing upwards, but part of the ideal the poseiq is trying to cast onto the situation.


I’m not sure what if anything we should assess about how conclusions were reached from the phrasing of the mishnah. (Another issue raised by RtCL.) This is a style of composition that values rememberability over everything, even precision (chesurei mechasra vehakhi ketani; or bameh devarim amurim, without the “meh‘ written in; etc… a mishnah can have elided words, or be discussing a particular unnamed situation to the exclusion of others). Why would we think that it reflects the actual process used to reach the conclusion?

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