Halachic Decision Making in First Rank Posekim

A debate between Rabbis Hillel Goldberg and Michael Broyde

Rabbi Hillel Goldberg
An exchange between Rabbis Aharon Lichtenstein and Aharon Feldman in the pages of Jewish Action (“Dear Reb Aharon,” summer 2010) prompted a letter by Rabbi Michael Broyde, which prompted a letter by Yosef Wiener, which now prompts a letter from me.

I wish to comment on one point in the exchange between Rabbi Broyde and Wiener, namely, the approach of Rav Moshe Feinstein to halachic decision-making (pesak halachah) as reflected in a critical methodological statement in one of Rav Moshe’s responsa.

The stakes here are broad: not only the fundamental method of Rav Moshe Feinstein, but of other first-rank posekim, too. The issue is the definition of intellectual honesty within halalchic decision-making.

The difference of opinion between Rabbi Broyde and Wiener shows that, in essence, the correct interpretation of even one single word in a sophisticated rabbinic responsum can make a critical difference.

Rabbi Broyde cites a short phrase of Rav Moshe Feinstein, and, in essence, builds a theory of halachic decision-making on one word in that phrase. Rabbi Broyde writes that his critic, Wiener, “misunderstood” him.

I don’t think so. I think Wiener did understand Rabbi Broyde, did have the correct reading of Rav Moshe, and that it was Rabbi Broyde who misunderstood Rav Moshe. I say this notwithstanding Wiener’s confusion of im rak and rak im, which Rabbi Broyde correctly pointed out (see below).

The issue is whether plausibilities in halachic sources may be snatched up at will, or whether authoritative halachic analysis operates on the basis of what Wiener calls “conviction.”

The phrase and the word of Rabbi Feinstein that Rabbi Broyde focuses on is this:   “…im rak nir’eh lanu lehatir.” The essential word is nir’eh.

Wiener translated the context of that phrase, and the phrase itself, this way: “ . . . but in cases of great need . . . we are certainly obligated to rule [leniently] only if it appears to us to be permitted [emphasis added], and it is forbidden for us to be among the humble . . . .”

Rabbi Broyde objects to this translation, and he is right to do so, insofar as im rak does not mean only if. It means if only, or, as Rabbi Broyde prefers, if merely. However, Rabbi Broyde’s rendering of the entirety of Rav Moshe’s words remains problematic. Rabbi Broyde translates:

“ . . . but in cases of great need . . . we are certainly obligated to rule [leniently], even if we merely deem it plausible to be lenient [my emphasis], and it is forbidden for us to be among the humble . . . .”

We arrive at the essence of the issue in the interpretation of Rav Moshe: Is leniency the right way to go if “it appears to us” to be permitted—if our best halachic reasoning leads us to a lenient conclusion—or if we merely “deem” a leniency “plausible”?

Writes Rabbi Broyde: “Rav Moshe meant that in cases of urgent need, ‘a posek can adopt an understanding of the halachah that he genuinely thinks is reasonable, even if he himself recognizes that other understandings of the Talmudic sources can be just as correct . . . .’”

Is that what Rabbi Feinstein actually said? The essence comes down to that one single word: nir’eh.

Nir’eh indeed denotes “it appears.” That is, “I am not dogmatic on the question.” From this, bolstered by Rav Moshe’s introductory im rak (“if only”), out pops Rabbi Broyde’s “even if we merely deem it plausible.” That is, Rabbi Broyde says that Rav Moshe says: Take your pick among the plausibilities. According to Rabbi Broyde, Rav Moshe cherry-picked the decision he found reasonable because it could be defended as well as another decision that could emerge from the sources.

Rabbi Broyde says this is “a common situation in Jewish law.”

However, while nir’eh does denote “it appears,” it frequently connotes something very different, certainly in the writings of many first-rank posekim.

In my acquaintance with the Chazon Ish, for example, when this posek introduces one of his comments with “it appears,” what this connotes is that a mere mortal, about to make a pronouncement on the Divine Law—a being of flesh and blood who will someday expire, about to act in light of the tremendous weight of generations of halachic masters and claiming to reflect the will of God Himself—will couch his halachic conclusions modestly. He will say only, “nir’eh, it appears.”

That is vis-a-vis halachic history.

But in the Chazon Ish’s determination to ascertain the Divine intent in the given case, he is not hedging when he uses nir’eh. The halachic rulings of that formidable giant are often introduced by “nir’eh”—an expression of modesty before the tradition, coexisting with a ferocious determination to have his halachic ruling seen as nothing less than compelled by the sources.

Likewise, in my acquaintance with the comments of the Vilna Gaon on the Shulchan Aruch, when this extraordinary posek introduces a source with “it appears to me” (nir’eh li), what this connotes is a hammering conviction, not a mere plausibility.

So, too, in my acquaintance with Rav Moshe, when he writes (I translate literally now), “ . . . if only it appears to us to rule leniently,” the connotation is: The full force of my polymathic halachic knowledge yields a lenient ruling here because it is compelled by the sources. Rav Moshe’s complete conviction in his reading of the sources is on full display in the very teshuvah that Rabbi Broyde cites, in which Rav Moshe himself bridles at the suggestion of his questioner that the sources do not really say what Rav Moshe says they decisively say.

There is a way of indicating that a conclusion is merely “plausible” — for example, im rak heichah timtza—but Rav Moshe did not write that. He wrote nir’eh, expressing his connotatively clear conviction.

This does not mean that Rav Moshe never revisited or altered his rulings, but again, such developments represented his further thought, not his supple readjustment of plausibilities.

If Rav Moshe merely made choices among plausibilities, since he could justify it, he would not have become the universally acknowledged posek that he became.

Rabbi Broyde concludes: “[Rabbi Feinstein’s] vision, breadth, knowledge and wisdom are missed in this time of terrible need.”

What was Rav Moshe’s wisdom? His phenomenal knowledge, coupled with his determination to seek the most cogent and compelling reading of halachic sources in response to every question put to him—in a word, his conviction. It was this, not some supple selection among plausibilities, that constituted his wisdom.

The real issue in assessing different first-rank posekim is not their aspiration to identify the most truthful reading possible within the sources, but their actual findings. Findings, of course, can differ. That is another story—and that is the real story—not a supposedly limitless pliancy, based on a misleading, denotative reading of im rak nir’eh.

The odd thing is, Rabbi Broyde seems to acknowledge all this himself in other parts of his original letter to Jewish Action. Rabbi Broyde quotes Rav Moshe, from the very same teshuvah that contains the im rak nir’eh quote, as saying that the qualified posek “must rule decisively . . . to the best of his ability,” based on “diligent investigation” and “a clear understanding and valid proof.” Right: A decisive ruling based on a clear understanding, not a “reasonable” ruling based on a “mere” understanding, is the context of im rak nir’eh lanu lehatir. Rabbi Broyde himself asserts the value of general rabbinic leadership that is “willing to assert what it thought the halachah really was.”

Precisely.

Rabbi Hillel Goldberg, PhD, executive editor of the Intermountain Jewish News, in Denver, Colorado, is a contributing editor of Jewish Action.

Rabbi Michael J. Broyde
Rabbi Hillel Goldberg’s insight that Jewish law authorities frequently use the term nir’eh li or nir’eh leaniyat da’ati merely as a term of modesty, but are, in fact, sharing their opinion as to what the halachah undoubtedly is in their view, is certainly correct.  Rabbi Feinstein did so hundreds of times in his teshuvot.

But that is not the case here.  Rabbi Feinstein states:

However, one ought not be haughty in one’s instructive rulings–this should be avoided whenever possible, but in cases of great need, and certainly in serious matters regarding the ending of marriages as this case, we are certainly obligated to rule [leniently], even if we merely deem it plausible to be lenient [im rak nir’eh lanu lehatir] and it is forbidden for us to be among the “humble” and [thereby] cause Jewish women to remain unable to marry, or cause fellow Jews to stumble in prohibited activities, or even simply cause a Jew’s financial loss.

Let me explain why: There are hundreds of cases in Iggerot Moshe where Rav Moshe invokes the phrase “it appears to me in my humble opinion” (nir’eh leaniyat da’ati) or “it appears to me” (nire’eh li) and if this had been one of them, Rabbi Goldberg would certainly be correct.

But it is not and this is clear for three reasons.

First, Rabbi Feinstein is not writing in this paragraph about this particular matter anymore, but he is writing more generally about how Jewish law ought to operate in all cases for all decisors (posekim).  Thus, he invokes the plural phrase nir’eh lanu “it appears to us” —a phrase not used anywhere else in Iggerot Moshe to voice his view—exactly to tell the reader that he is speaking here not in a merely modest tone about his view, but about how Jewish law needs to function for us all.  That is why this whole paragraph is written in the plural (anachnu, lanu, mechuyavin).  In time of urgent need, Rabbi Feinstein claims, a posek should rule as he deems reasonable to be lenient.

Second, Rabbi Feinstein invokes the plural phrase nir’eh lanu “it appears to us”—a phrase used only one other time (YD 1:33) and used to note an empirical fact—to tell the reader that he is speaking about an empirical fact that something merely appears to be lenient (what I translated as “deem it plausible to be lenient”), and not simply modestly voicing his view. In Iggerot Moshe, the phrase nir’eh lanu (“it appears to us”) is not a humble recitation inserted before one voices one’s view, but a factual claim about how matters appear.

Third, there is an analytic proof that this approach is correct. Rabbi Goldberg and I certainly agree that Rabbi Feinstein is not saying that one should put forward a Jewish law answer that one merely thinks is plausible but yet is wrong.  Rabbi Feinstein means that there are cases where posekim think an idea is correct, but yet other posekim advanced contrary approaches that lead to a different result and one cannot prove his idea to be any more persuasive or correct than a number of other valid approaches that are also correct. In such a case, generally one should be silent, since he might very well not be able to be proved correct. However, in a case where the lenient approach will allow a couple to remain married, or prevent a fellow Jew from stumbling into prohibited activities, or avoid a Jew’s financial loss, a posek must voice it anyway, as that is the job of great posekim. If my translation is not correct, and Rabbi Goldberg’s is correct (and Rabbi Feinstein was speaking about only ideas that his “polymathic halachic knowledge yields a lenient ruling here because it is compelled by the sources”), there is no reason to limit sharing such categorically correct views to cases of urgent need; rather, in all cases, one ought to share what one thinks is the indisputable truth. Of course, I certainly agree that Rabbi Feinstein is not in favor of advocating ideas that a posek himself does not think are true and correct, but I think Rabbi Feinstein is advocating putting forward halachic insights in times of urgent need that even the posek in question recognizes are less than 100 percent compelling. The words nir’eh lanu used by Rabbi Feinstein here are to denote the category of ideas that are more likely than not to be correct, but not at all “compelled by the sources.”

Thus, Rabbi Goldberg’s reading of the source is reasonably, but actually incorrectly, confusing the rabbinic idiom nir’eh leaniyat da’ati with a factual statement of how things actually appear (nir’eh lanu).  The phrase “I have a frog in my throat” and “I have a cyst in my throat” are very similar but totally different types of statements, in that in the former all the words have a non-literal meaning and in the latter all the words have a literal meaning. One word can change everything from an idiom to a factual recitation. So too, here: nir’eh lanu is not an idiom, and nir’eh leaniyat da’ati is.

Thus, one sees that my translation is correct—in a case of urgent need, Rabbi Feinstein recognizes that a posek may share approaches that merely “appear” to be correct, but are far from “compelled by the sources.”

Rabbi Michael J. Broyde is professor of law at Emory University School of Law in Atlanta, Georgia, and a dayan of the Beth Din of America.