Halakhah is the means G-d gave us to actively and creatively complete ourselves, to use our Image-of-G-d ability to be who choose to make ourselves and become ever close to that “Image”. The word we generally use is “mitzvah” — that which someone commanded. Notably it is not the more direct conjugation, “tzava” — commandment. It is written as though the fact that the deed was commanded is only a distinguishing feature, not its essence. The seventh Lubavitcher Rebbe zt”l goes further and suggests that the word “mitzvah” is cognate to an Aramaic word “tzivsah” — to receive nourishment. A mitzvah is not only commanded, but also our sustenance. “For those are our lives, and the length of our days.” We have trust in Hashem that the actions He commanded are in our own best interests. For this reason the Zohar translates “Taryag mitzvos” as “Taryag Ittin” — 613 pieces of advice or solutions. (“Ittin” is cognate to the Hebrew “eitzos“.)

The distinction between mitzvah and tzivui could be understood with a metaphor. Someone goes to a doctor and is advised not to eat red meat. A few days later, the same man is a guest at someone’s home and is offered some steak. He declines, explaining to his host that he is under “Doctor’s orders”. The purpose of refraining from red meat isn’t in order to obey the doctor. Rather, he has trust in his doctor’s greater understanding of medicine, and feels secure that the abstention is in his own best interest. The doctor’s order is therefore akin to a mitzvah, not a tzivui.

The name of the parashah lacks the richness of the word mitzvah. It doesn’t refer to both Doctor’s and General’s orders by including the letter mem to hint at nursing. “Tzav” means to command. King David wrote, “Ani avdekha ben amasekha — I am Your servant, the son of your handmaiden.” The meaning is actually richer than that translation. An eved is someone who is submerged under and lost to his work. Rav Hirsch understands the word as an intensive form of avad, to be lost or destroyed, made by replacing the unvoiced opening alef with a voiced ayin. And an amah is not only a female servant, but also a forearm. So we can also translate the verse, “I am second to Your work, the son of someone who made herself a tool for Your Will.” Or as the Zohar says (and we repeat upon taking out the Torah in shul), “Ana avda deQBH — I am the servant of the Holy One, blessed is He.”

The obedience aspect of avodas Hashem is a tough sell in today’s society. Perhaps the most central value in Western Culture today is autonomy, giving people the ability and opportunity to be able to do what they want — as long as it doesn’t interfere with others. Submission?

And so we find among our non-Orthodox brothers a growing population who self-identify as “Post-Denominational” and who seek a DIY — Do It Yourself — Judaism. The chaburah movement, and so on. But this tendency has reached Orthodoxy as well.

For example, R’ Natan Slifkin wrote an article about how the shiur of a kazayis has evolved over time. We know from archaeological evidence that the olives of Chazal’s day were somewhat smaller than the kezayis advocated by the Rambam, and is used today by many Sepharadim. Must smaller than the range of value generally discussed by Ashkenazim, even R Chaim Naeh’s position based on the custom of Yerushalayim in his day (early 20th cent). An Ashkenazi position in line with this  finding is Rav Chaim Volozhiner’s opinion, that a kezayis is the size of a typical olive of our olives as they are bred and grow in our day and age. But this opinion isn’t considered very often. At least not in print. Memories of our ancestors’ seder tables indicates otherwise.

Facebook and the j-blogosphere has been full lately of people who take this historical analysis and proclaim that they will use it to justify using smaller measures for matzah and maror. Taking halakhah into their own hands, even though the argument they are relying on is primarily historical, not halachic. What happened to following halachic authorities? Finding a poseiq and relying on someone else’s expertise? Isn’t that how pesaq supposed to work? Similarly, someone commented on Rabbi Reuven Spolter’s blog, Chopping Wood:

Many in the thinking MO community agree with the rationale, underlying assumptions, and thinking set forth by Rav Bigman, and certainly do not agree with Chareidi views of society and the place for women. Why should they adopt the Chareidi psak? If you think that Rav Bigman’s view should not be followed, then in order to make a case that will fall on accepting ears you have to address the issues. For the thinking MO, it is the quality of the argument, not who said it (within reason) or how many said it, that matters. So if you oppose the action, you have to make an argument based on sources and logic, not a list of poskim.

Actually, there are many halachic rules based on who said it. Following Beis Hillel over Beis Shammai. Obeying the majority rule in a Sanhedrin. The Shulchan Arukh, in general, follows the majority of the Rif, the Rambam and the Tur — not the ruling he finds most reasonable. The Rambam, in the introduction to his Mishneh Torah, sources the gemara‘s authority in the fact that its rulings spread across the observant community — not because of the power of its arguments. And similarly of later rabbis, and the local communities they led.

(As a historical point, the actual universal acceptance of the Tamud Bavli as the final word on what Chazal say (when the Bavli actually has an opinion) post-dated the Rambam. Ashkenaz still had a large population from Eretz Yisrael who were loyal to minhagim from that area. In fact, even to this day Ashkenazim do some things that fit the Yerushalmi or the medrashei halakhah better than they conform to the Bavli. But the Bavli didn’t become THE Gemara in Ashkenaz until the Tosafists. Which is why they were the first to show a struggle between the gemara’s content and (locally) accepted halakhah.)

Because the Rambam is thought of as our tradition’s arch-rationalist (a title Rav Saadia Geon or the Ralbag should also be in the running for), I’m going to quote the words of the introduction to reinforce the point that even our rationalists understood that halakhah requires working within its own process, and not an a priori rationality given historical facts. This is from Mechon Mamre’s translation (see there for the Hebrew too; I just figured most people following this discussion wouldn’t bother reading it if I put up the Hebrew):

32 The enacted legislations or enacted customs of the courts that were established in any town after the time of the Talmud for the town’s residents or for several towns’ residents did not gain the acceptance of all Israel….
34 These matters apply to rulings, enactments, and customs that arose after the Talmud was written. But whatever is in the Babylonian Talmud is binding on all of the people of Israel; and every city and town is forced to observe all the customs observed by the Talmud’s sages and to enact their restrictive legislations and to observe their positive legislations.
35 For all those matters in the Talmud received the assent of all of Israel, and those sages who enacted the positive and negative legislations, enacted binding customs, ruled the rulings, and found that a certain understanding of the Law was correct constituted all of Israel’s sages, or most of them, and it was they who received the traditions of the Oral Law concerning the fundamentals of the whole Law in unbroken succession back to Moshe Our Teacher.

Rav JB Soloveitchik applies the Rambam’s reasoning to an instance that post-dates the Rambam’s life — the acceptance of the Shulchan Arukh. The Shulchan Arukh, with the Rama, was so broadly accepted by the Jewish People it became the yardstick from which we measure the novelty of all our rulings, and therefore the need to justify a divergent conclusion. And why the Shulchan Arukh is the central book in the curriculum we use for ordination programs.

Rabbi Spolter’s response to that qol ishah comment begins (minus the author’s name):

…’s comments concretized exactly why Modern Orthodox practice regarding kol isha bothers me so much. Since when has the Shulchan Aruch been appropriated by the Chareidi community? Suddenly, every rav and posek who doesn’t conform to our values is now Chareidi?

One can be leinient in qol ishah because of halachic arguments: perhaps it only applies to live performances, to cases where the woman can be seen, to solos, or that it excludes liturgical or religious music. But to simply refuse to conform because compromising one’s autonomy, doing what makes sense to my own mind, because I share my halachic decision-making with my LOR (Local Orthodox Rabbi, in Jewish Internet-speak)?

So we have two examples of recent phenomenon that point to a trend away from seeing mitzvos in terms of submission to Hashem’s Will (in addition to whatever it is He is trying to provide for us in them), a Western over-emphasis on autonomy. I tried to cite one case, that of the kezayis, where the results could well be correct, but the attitude and process to get there is not. In the case of qol ishah, the same tendency produces a clearly non-halachic result — the assumption that the prohibition is some chareidi chumerah.

There are actually two aspects to the issue I am raising:

First, the need to use halachic methodology to produce halakhah. Halakhah is a legal process, not a fact-finding one. Sometimes the law drifts from history but is binding because it conforms to the legal principles that make interpretations binding. The altar designed by Solomon was unusable in the 2nd Temple, as the new cadre decided to take a more stringent position on how to pour libations than that proven by altars of the past. Similarly, who said we today are supposed to ignore centuries of evolution of the halakhah about how much matzah to eat, and what a “kezayis” measure is in general? Our debate over this issue — the role of historical research on how we decide halakhah — is what distinguished the bulk of Orthodoxy from the Historical School, and why that originally Orthodox movement evolved into Conservative Judaism. The Torah is to be understood from the inside, by subjective study, internalization, and developing a feel for its flow. Not an objective academic study like other topics, that it always can be dovetailed with our conclusions in those disciplines.

There is a question whether one can use archeology — or any external field — to overturn accepted halakhah. When the Radziner Rebbe concluded that the chilazon, the source of the blue tekheiles dye, was the cuttlefish, R’ Chaim Brisker wouldn’t even weigh the quality of his arguments. Rav Chaim would not accept external evidence to reestablish the identity of the chilazon in the face of halachic silence. I found that a chiddush, but I find the overturning of halakhah when it was not silent to be a greater one.

The Torah Temimah (Maqor Barukh 583) repeats a tradition he received from a Rav Eliyahu Goldberg about Rav Chaim Volozhiner. A knife takes on the meatiness (or milkiness) of the food it cut in two cases: if the food is physically hot, or if the food a davar charif, something with a sharp or hot taste. The Shulchan Arukh’s examples are garlic, onion or leek (YD 96:1). Later on (96:5), the Shulchan Arukh discusses turnips among other things.

But when a woman came to Rav Chaim asking about just such a case — she cut meat and turnips with a dairy knife, Rav Chaim didn’t simply tell her the food wasn’t kosher. He instead asked he the color of the turnip. She said it was a white turnip. Rav Chaim allowed her to eat the food. Why? Because while the Shulchan Arukh said that turnips were a davar charif, Rav Chaim didn’t believe this to be true experientially. Still, R’ Chaim wouldn’t overturn an accepted halakhah in the Shulchan Arukh! So, he drew a distinction between the dark skinned turnips the SA’s author would have encountered in the middle east, with the white skinned ones more common in Lithuania, and thereby felt comfortable ruling. In other words, R’ Chaim Volozhiner was willing to give some authority (at least in the case he was undeniably speaking of) to the Shulchan Arukh even when it was based on a reality that ran counter to his senses.

It’s this kind of sensibility to the notion of halachic authority, to building upon generations past, to submission to the law, that I feel is lacking when someone takes it upon himself to reverse the trend of the kezayis of the past hundred and something years on the basis of someone’s booklet about classical-period olives.

Whether it makes sense to us or not, it’s a fact a minimum of R’ Chaim Naeh’s position became the accepted ruling in many communities. Again, overwhelmingly so on the theoretical plane, if a weaker but still reason consensus in practice. Overturning it to produce a result one has a predisposition for requires caution and a feel for how to weigh various considerations.

Second, the consequent need to have a poseiq. Someone whose rabbi gave them a certificate that says “yoreh yoreh — you have permission and thus the duty to do hora’ah“, you know how to interpret law that has no one settled ruling, and how to extrapolate from existing law to new cases. Someone who apprenticed under a rebbe and has a feel for how to “do halakhah“. The alternative is that one is judging the “quality of the arguments” while under the subconscious influence of having a desired outcome, and without the expertise in and practice with the halachic yardstick for measuring quality of argument.

I would think that ideally a person should face a halachic question as follows:

1- If you have time, open up an Arukh haShulchan, MB or the like, or compare a few guides (Chayei//Chokhmas Adam, Qitzur SA, more recent guides) and see if this case has settled law (zil q’ri bei rav), or if the question is still open (hora’ah).
If it’s settled law, then you know what to do. If not…
2- Did your mentor tell you he is comfortable with your ability to pasqen (ie do you have semichah)? Is this case one that you can decide for yourself with some modicum of objectivity? Can you reach a conclusion you yourself are comfortable with?
If all of the above are “yes”, then go ahead with your conclusion. If not…
3- Consult your rabbi! Not the rabbi most likely to be lenient, not some rabbi who knows you, not even some random gadol. The mishnah says “asei lekha rav — make for yourself a rebbe“. Being able to speak with someone who knows you, your proclitivies, and your situation is a big part of pesaq. The only time you should be sacrificing that kind of ability to fit the situation and your own path up the mountain is when there is no other way to get sufficient technical expertise — and even that should be minimized. (Your rabbi may similarly consult his rabbi, if the question is beyond him, and so on recursively as needed.)
This way, you should get an answer that fits where you are — and where you are going — without giving dangerous autonomy to people with little practice separating halachic concerns from personal desires and from misunderstandings of what the halachic concerns are.

Thus the Oral Torah is a dialog down the ages, from the encounter with G-d at Sinai as explained by Moshe Rabbeinu through Yehoshua and so on down to ourselves. As I wrote in 2009:

Mesorah is a living tradition of a development of ideas. The Oral Torah is oral, a dialog across the generations. If we see a quote in the gemara from Rav Yochanan, we might be curious about the historical intent of Rav Yochanan. But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi’s meaning to be, which in turn can only be understood through the eyes of the Shaagas Aryeh and R’ Chaim Brisker.  That is the true meaning, in terms of Torah, of Rav Yoachanan’s statement.

By sharing the job one’s halakhah decision-making with a mentor-poseiq one is connecting to something eternal. Fealty to halakhah with all its notions of authority and precedence (or should that be: authority including precedence?) saves one from existential angst. Being part of something eternal means my contributions to the fate of the universe will survive my death. Joining the community, finding a different balance between personal expression and fealty to that community and its laws than the “do your own thing”, “self made man”, idealization of autonomy in American and Western society gives me the leverage to be part of something bigger than I am alone.

Am Yisrael Chai for far more than 120 years.

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  1. Moshe says:

    Can you elaborate on any sources for this paragraph?

    (As a historical point, the actual universal acceptance of the Tamud Bavli as the final word on what Chazal say (when the Bavli actually has an opinion) posr-dated the Rambam. Ashkenaz still had a large population from Eretz Yisrael who were loyal to minhagim from that area. In fact, even to this day Ashkenazim do some things that fit the Yerushalmi or the medrashei halakhah better than they conform to the Bavli. But the Bavli didn’t become THE Gemara in Ashkenaz until the Tosafists. Which is why they were the first to show a struggle between the gemara’s content and (locally) accepted halakhah)

  2. J. says:

    Your characterisation of the kezayis issue is misleading. R. Chaim Volozhhyner was far from the only one, and both the Chazon Ish and RSZA held this way me’ikkar hadin. See here for details:

    • J, if you think the point of the issue is whether there are halachic grounds to be meiqil, then my whole post wasn’t clear.

      I’m arguing against this trend deciding halakhah for themselves what’s reasonable, because:
      1- “reasonable” isn’t necessarily based on halachic, legal, thinking, and
      2- it’s too often based on ulterior motives.

      In the case of the kezayis. People who don’t enjoy eating large amounts of matzah will want proof that a kezayis matzah is less than what we’re being told. They therefore take to an argument they see in a booklet written by someone who doesn’t “do halakhah” where the primary thrust doesn’t even have to do with halakhah. But they want larger shiurim to be absurd, and this booklet validates that.

      My greatgrandfather, who learned full time and had a kloiz in Suvalke ate kezeisim far smaller than what’s in the books. A cousin of my grandfather’s generation had the zekhus of being in the homes of a number of gedolim around Lithuania and Northern Poland, and never saw such kezeisim. My grandfather (on the other side) told me that his father, Rav Yisrael Avraham Abba Krieger, who held the rabbinate of Kashduri (Lithuania), Frankfurt-am-Main (the Orthodox Gemeinde community) and Boston, who spent the second part of his childhood in the Or Sameiach’s home, at his table the kezeisim were smaller.

      So I think there is, a valid argument for smaller kezeisim. Even if I didn’t present it.

      My problem isn’t with the result, but with the methodology.

      I have no problem with someone who feels a certain ruling makes more sense than what’s in the books talking it out with his rav, and making sure that the ruling is one for him to follow. But for someone who never had his skill at hora’ah checked out to make such a decision on their own… It has to do with an unwillingness to submit, to at times do things that make less sense to me because I trust that they make more sense by some objective standard.

      Time for me to hone the text. After the next round of Pesach cleaning…

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