Da’at Torah: The Missing Chapter in the Shulchan Aruch

 

jbuThe passing of Rav Ovadia Yosef, zt”l, last year marked the end of a remarkable life, brilliant mind and revolutionary posek. As others have noted, Rav Ovadia reinstated the Sephardic tradition of following Rav Yosef Karo’s Shulchan Aruch, which had previously been surpassed by the Ben Ish Chai. Rav Yosef accomplished this through encyclopedic knowledge, exhaustive analysis and unshakable confidence in the power of traditional halachic methodology. In his well-over a dozen volumes of responsa, he quotes every available source on the topics he addresses and explains in detail how he reaches his conclusions.

The type of analysis in which Rav Ovadia engaged could only have been accomplished because the posekim he quoted and with whom he engaged followed the age-old tradition of including within their responsa not only the bottom line—the conclusion—but a detailed exposition of the halachic basis for their rulings. This enabled other posekim, both contemporaneous and subsequent, to tackle the issue and agree or disagree with the analysis contained in the responsum.

On the other hand, had the posekim of yesteryear adopted the increasingly popular style of da’at Torah rulings without explanations, Rav Ovadia could not have accomplished his analyses. The only data that would be available to posekim would be the question and answer, leaving later rabbis guessing the underlying reasoning and textual interpretations. In his Mishneh Torah, Rambam provided only rulings and no sources. He was roundly criticized for this, and he later expressed regret for this failure. Rambam recognized that the omission of sources and arguments yields confusion, as proven by the many debates over Rambam’s true intentions, still ongoing centuries after his death.

Despite this, some rabbis today persist in issuing brief rulings without providing sources or explanations. Consequently, there is no way to intelligently discuss the ruling, understand its basis or engage in any meaningful dialogue about it. The end result: the colloquial two, three or even four ships passing in the night. The lack of support for da’at Torah rulings undermines their very usefulness and acceptability beyond their immediate context.

I do not oppose the concept of da’at Torah, the invocation of intuitive, unexplained rabbinic authority that must be followed regarding non-halachic issues. Rav Joseph B. Soloveitchik, zt”l, in his eulogy for Rav Chaim Ozer Grodzinski, the foremost halachic authority of the first half of the twentieth century, extolled the intuition and insight of the Torah giant in all areas. While Rav Soloveitchik later modified his view of da’at Torah significantly, I cannot dismiss someone who follows the early Soloveitchikian approach to da’at Torah. What I question here is the undisciplined use of this method. The centuries-old manner of formulating a halachic commentary or responsum, i.e., including citation of authorities relied upon and the analysis that led to the ruling, is indispensable to the appropriate search for Torah truth.

When posekim offer their public support to specific political parties, are they issuing halachic rulings, da’at Torah pronouncements or strong personal views?

What is lacking in these da’at Torah proclamations is what I call “the missing chapter in Shulchan Aruch.” The Shulchan Aruch itself is a compendium of rulings that is accompanied by lengthy explanations of all its rulings in the Beit Yosef, in which Rav Yosef Karo expertly surveys the extant halachic literature of his day. I imagine that a chapter in Shulchan Aruch on da’at Torah would enumerate what is lacking in some of the contemporary halachic discourse. I suggest that this proposed chapter would contain at least the following three paragraphs describing da’at Torah requirements: 1. qualifications of the posek making the ruling; 2. a declaration that one is issuing a da’at Torah ruling and 3. the structure of the ruling itself.

  1. Qualifications—It goes without saying that only someone fully knowledgeable in a subject may rule on it. The posek must not only be fully versed in the specific subject under discussion but must also be accepted by the community as an expert. For example, only someone who is both a master of the halachot of eruvin and has practical experience in building and checking them should rule on an eruv. Similarly, the Talmud emphasizes that only someone who is an expert in the laws of marriage and divorce should pasken on them.

Returning to the world of da’at Torah, we can find similar examples. When the movement developed decades ago to pressure the Kremlin to allow Soviet Jews to emigrate to the West and permit those who stayed to practice their religion, a disagreement arose among the activists whether to protest publicly or lobby privately. A number of leading rabbis opted for the latter, decrying public protests. When this question was posed to Rav Soloveitchik, he first acknowledged the historical approach of private shtadlanut but went on to point out that the ultimate determinant must be what is most effective in dealing with the current leaders of Russia. Thus, he consulted with Kremlinologists—the leading experts on the subject.

Rav Moshe Bick, zt”l, took a similar approach in connection with a proposed amendment to the New York autopsy law. The law mandated that an autopsy be performed when the precise cause of death is unknown or when there is suspicion of foul play. Laws like this often run counter to the halachic mandate of preserving the body of a deceased and have continued to bedevil the observant Jewish community. Over the years, efforts to resolve the conflict have met with varying degrees of success.

The challenges facing the draftsmen of the proposed New York law were formidable. A proposed law seeking to protect our religious rights must also accommodate, to some extent, the needs of the medical examiners in meeting their responsibilities under general autopsy laws. The question arose as to which autopsies would not be contested, and who would decide.

At the time, COLPA (the National Jewish Commission on Law and Public Affairs) was saddled with the problem. On the advice of leading rabbinic advisors, a meeting was arranged with the COLPA representatives and renowned posek Rav Moshe Bick and the Voideslover Rav, at the time the Satmar dayan. When the proposed compromises were raised with Rav Bick and the Voideslover Rav, Rav Bick immediately responded, “You are certainly welcome in my home, but why are you here? I am satisfied with your integrity and desire to achieve as much protection as possible. But let me ask, do you think more is possible?” The COLPA representatives responded in the negative. Rav Bick then said, “How could I possibly know more than you on this issue; of course we have to rely on your judgment.”

It is evident from the above incidents and simple logic that even a recognized posek, an expert in all areas of Torah, is ill-equipped to render a da’at Torah ruling without complete knowledge of the issues involved. I write this by way of introduction, not accusation, because I assume that everyone agrees with this sentiment and abides by it in principle, if not always in practice.

  1. Declaring that one is issuing a da’at Torah ruling—Expanding the concept of da’at Torah to include virtually every difficult decision in life would certainly make life much easier for those who prefer to avoid the burden and fear of choosing among alternatives. However, bechirah chofshit, the free will afforded to each individual, demands each individual make his own choices. Rav Aharon Lichtenstein, shlit”a, once set forth, in his inimitable fashion, the appropriate principle to non-halachic areas as follows:

We respond to the prospect of total Halakhah with reservation, if not recoil. The thought that everything has been programmed, all eventualities anticipated, so that we can rest assured that if only we mine long enough and deep enough we will discover the definitive right solution, is staggering, in one sense, and stifling, in another. It emasculates us intellectually and—in some respects, religiously—because it effectively denies genuine spiritual choice and this severely limits responsibility. We are reduced to deciphering possibly encoded messages and to implementation of detailed orders.

Jewishly and humanly, we yearn for more. We have been nurtured on the centrality of free will in the Torah life; and we instinctively assume that the creative impulse finds expression not only in the elucidation and explication of concepts and texts but in the process of the application as well. A committed Jew obviously does not arrogate autonomy. He regards behirah hofshit as the capacity to accept or reject Halakhah, but not as the right to do so. He does, however, presume that, in addition to being charged with navigating his ship, he has some latitude in charting its course (Varieties of Jewish Experience [New Jersey, 2011], 64).

However, even accepting—as I do—Rav Lichtenstein’s analysis of the limitations of da’at Torah, applying it to daily issues does not come easily. I expect that the expansion or limitation of da’at Torah will continue to be debated. However, all agree that in the absence of da’at Torah, a person may freely make choices. Therefore, I strongly encourage posekim to explicitly state that a ruling is predicated on da’at Torah. This will prevent public confusion over statements that are grounded in neither halachah nor da’at Torah.

For example, when posekim offer their public support to specific political parties, are they issuing halachic rulings, da’at Torah pronouncements or strong personal views? Confusion about such statements is rampant. The public needs to be able to differentiate between pesak, da’at Torah and opinion.

  1. The structure of the ruling—If a posek feels obligated to set forth the basis for his ruling—his sources and detailed reasoning—we will find the following benefits:

The mere fact that the posek follows the traditional format of explaining his ruling will constrain him to ensure that his position can withstand critique. He will engage the sources, marshall his arguments and provide a rigorous analysis. Rav Ovadia’s encyclopedic style of responsa is not the only type. Some responsa build from the primary texts, constructing an original approach that comprehensively addresses the topic. Others adduce debates among earlier authorities, explaining the different views and then applying them to the question at hand. There are many ways to write a responsum. What is important is that it provide a rationale and textual basis for the conclusion. Putting this explanation in writing ensures, to a great degree, that the posek is confident that his analysis can withstand scholarly scrutiny.

The format will allow for give-and-take among posekim, generating a vibrant and healthy Torah literature. Even in the times of the Sanhedrin, the authoritative court in Jerusalem, decisions were reached by majority vote. Implied in this process is the inevitability of disagreement among even the greatest Torah scholars. Indeed, in capital cases, when the Sanhedrin was authorized to adjudicate them, a lack of even minimal disagreement among judges invalidated a guilty verdict. Debate is natural and healthy. A published literature allows for a meeting of the minds as well as further clarifying the issues and significantly advancing the search for Torah truth.

What I call for here is not a blurring of the communal lines between different segments of Orthodoxy, nor an imposition of my personal views on others. I ask the leaders of halachah, the Torah giants of our generation and those who influence and interact with them, for help. I need help in understanding them and help in ensuring that the Torah conversation continues as a discussion across the ages. We live in a time of unprecedented magnitude of yeshivah education and Torah publications, yet we risk becoming a dark age of halachah, lost to the future because of our failure to connect our conclusions to the breadth and depth of tradition.

Julius Berman, a former president of the OU (1974-1984), is past chairman of the Conference of Presidents of Major American Jewish Organizations and president of the Conference of Jewish Material Claims Against Germany. He is former chairman of the OU Kashrut Commission and chairman of OU Press. Additionally, he is a board member of the Toras HoRav Foundation, dedicated to the publication of Rabbi Joseph B. Soloveitchik’s unpublished manuscripts.

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This article was featured in the Fall 2014 issue of Jewish Action.
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