August 7, 2018

Responsa and Rabbinic decision-making in our digital post-modern world

In this shiur I would like to describe a series of developments in the world of halacha which some of you may have noticed, but which – I believe – have yet to be fully addressed in public.

Still, notwithstanding the paucity of discussions about the trends and iterations of contemporary halachic discourse, I believe that – as observant Jews – we need to be aware not only of the problems that halacha must address in each generation, but also the form and tone of halachic discourse in each generation.
So let’s begin at the beginning and define a few terms, and I’ll start with Responsa, which are the Jewish legal questions that are asked of religious authorities, and their Jewish legal responses received from those authorities.

Significantly, the Torah itself contains responsa. For example, when a group of people were impure and were unable to participate in the Korban Pesach, they turned to Moshe to ask him what to do, and it was from his reply that we learn about the law of Pesach Sheni.

Similarly, just a few weeks ago we read the story of the daughters of Tzelofchad who approached Moshe with the question of whether they – as daughters – could inherit their fathers share of the land, and as we know, having consulted with God, Moshe replied in the affirmative.

Both of these cases are examples of responsa where new questions were asked of the Jewish legal expert who, upon consultation with God – in the case of Moshe and other prophets – or Torah texts – in the case of later sage – rendered rulings in response to those particular circumstances.

Since then, millions of questions have been asked to poskim, with both the questions and answers – the She’elot and the Teshuvot – being published in responsa literature, and notwithstanding the fact that every responsa ruling is, in some way, an exception to the rule, it is from these exceptions that new precedents are established and new halachic practice emerges.

Based on this brief introduction I hope it is clear that we can learn much from responsa. However, the purpose of this talk is for us to focus on three important elements of Rabbinic decision-making which, I believe, are undergoing a process of radical transformation, and they are: a) the authority of the decisor, b) the role of the questioner, and c) the forum where halachic consultations occur and are recorded.

In terms of the authority of the decisor, let us look back at some of the earliest responsa such as those produced by the Geonim which were often very brief with only some of their responses citing Talmudic sources to justify their ruling.
For example, an extreme example printed in Teshuvot HaGeonim is a question posed of Rav Hai Gaon:

Concerning a ship that enters the harbor and the Shabbat limit on Friday afternoon – may [the passengers] alight on Shabbat?

Rav Hai’s response was short. In fact, it was so short that it contained just one word – “permitted”.

Now while not all the Geonic responsa were precisely of this form, many were brief and few contained lengthy justifications of the ruling. What this means is that, through this brevity, Geonic Responsa literature projects the legal authority of the Gaon as being the sole source of authority.

Later on in the responsa of the 12th-15th century, we notice a slight shift where argumentation and logic play a more prominent role in responsa.

For example, the 13th century Rabbi Shlomo Ben Aderet, otherwise known as the Rashba, addresses the question of whether it is permitted to crumble pieces of bread to feed chickens on Shabbat given the concern for the melacha of “tochen”- grinding?

Within his lengthy reply the Rashba explains that to chop up in order to eat immediately is permitted, ‘for they did not forbid a person to eat his food in large or small pieces. Rather, as they said (Shabbat 74a) regarding borer…One may select something and eat it right away…The present case is similar…We also derive from the Yerushalmi that everything hinges on whether one does an action and consumes the food immediately and one who does the same action and leaves the food for later in the day…And so the conclusion is…that one may even crumble bread to place before chickens that one is responsible to feed, for them to eat immediately, for we permit turning things into food’.

Significantly, though still emphasizing his authority, this form of responsa emphasizes the logic of the ruling ahead of the decision, and in doing so the Rashba and his contemporaries pulled back the curtain of halachic reasoning and shared their thinking with their questioners.

Over time this curtain was pulled back even further, and while innovation and creativity continued to feature in rabbinic responsa, so did the need to justify such innovation and creativity which is why so many responsa from the 16-19th century are so long and complex.

What this means is that the rhetoric and tone of responsa reflect the nature of the relationship between rabbinic authorities and their questioners, such that the greater Jewish legal justification incorporated within a responsum to support a particular halachic conclusion, the less is the inherent authority possessed by the rabbinic decisor.

Still, until the modern era, the weight of rabbinic authority was sufficiently great that once a rabbinic authority penned a responsum, it was assumed that the questioner would follow what they say without question.

However, as we know, the past two centuries have led to a radical shift in terms of the place of the individual in society and their autonomy in the face of religious authority. As Moshe Sokol observed, ‘the modern concept of autonomy was… born on the pyre of traditional religious authority’ . Yes, as Sokol also explains, there are varying different expressions of autonomy – specifically, hard autonomy and soft autonomy.

According to Sokol, hard autonomy expresses an attitude to the law that only accepts law when autonomously imposed, whereas soft autonomy reflects an attitude to the law that, while not self-imposed, may still be binding.

In terms of the development of halacha, the earliest examples of Responsa emphasise the place of authority with little regard towards the autonomy of the questioner, such that once a questioner asks a decisor to rule for them, they are presumed to be bound to that ruling. We can call this paradigm one of hard authority and little to no autonomy.

Over time, and as I have explained, we saw a shift in responsa, with the increased effort to justify decisions suggesting that the chair of authority was softening in the eyes of the wider public, and more recently I believe that we’ve moved to a place of soft authority and soft autonomy where, to quote Rav Soloveitchik, ‘we have a blending of the obligation with the self-consciousness, a merging of the norm with the individual, and a union of an outside command with the inner will and conscience of man’ .

Still, as Moshe Sokol explained in article – which, it should be noted, was originally delivered at the first Orthodox Forum Conference in 1989 – ‘the thesis of hard autonomy in all its dimensions… could never be reconciled with a theistic system, in which religious authority, via revelation and halakhah, provides the critical link between varying concepts of the good and God himself.’

Yet, it is precisely this desire for autonomy and yearning for authenticity which has led some to reject all forms of authority. As Rabbi Jonathan Sacks explains, ‘from the perspective of the autonomous self… halakhic existence is inauthentic because it flees from making personal choice the centre of its universe. From the perspective of tradition, much of contemporary ethics is inauthentic precisely because it makes personal choice the measure of all things.’

And this now brings me to the second half of my title – our digital post-modern world – because while some postmodernists regard themselves as hard autonomists, many argue that the very concepts of authority and autonomy do not speak to postmodernists. As Rabbi Shimon Gershon Rosenberg, otherwise known by his acronym Rav Shagar explained, ‘The present-day problem is not the integration of modernity and Orthodoxy, but rather the fact that in our postmodern world, both have been rendered obsolete’ .

Of course, there remain some communities where the authority of the posek remains core to the fabric of that community, and in those settings the Mara D’Atra’s decisions are binding on their community. However, they are exceptions to the rule, and this generates a serious challenge about the way Jews, and specifically younger Jews relate to halacha and to poskim.

Now there may be some of you who may be thinking that I am merely musing and that all Orthodox Jews recognise the inherent conflict with postmodernism and the halachic system and choose the latter over the former. However, as someone who teaching young women who are between their high school and university studies, I can assure you that what I am describing is very real, and as Gil Perl explained in a thought provoking 2017 Lehrhaus article titled ‘Postmodern Orthodoxy: Giving Voice to a New Generation’, the challenge of postmodern Jews is that in the place of a religious authority who may be likened to a “sage on the stage,” they are seeking friendly non-authoritarian guidance or what may be described as a “guide on the side.” Simply put, it’s not just that they don’t want to be told what to do; it’s the fact that the very concept of being told what to do is, for them, absurd!

This now brings me to my interest in the internet, and how the web has radically transformed the form and tone of halachic discourse, because aside from the web offering information and, in doing so, democratising halachic sources, the many ‘Ask the Rabbi’ websites have enable people to ask halachic questions anonymously without feeling beholden to the answers or the answerers. Moreover, some of these sites even allow room for other questioners to comment on the answers.

What this means is that while some people regard the web as merely offering a new format for responsa literature, others, such as myself, regard online responsa as reflecting a further shift in the relationship between the questioner and the decisor, where the responses are more comparable to an online chat than a formal responsum, and whether the decisor is merely ‘an opinion’ within a larger online conversation.

Undoubtedly, the individual who has explored this topic the most is Rav Yuval Sherlow, who – aside from having answered thousands of questions on the Moreshet website – has also written a fascinating paper on this specific subject where he explains that for the halachic system to withstand the challenge of postmodernism, poskim must change the way they rule:

‘The status and role of a posek has not changed. However, the pesak process has undergone a radical transformation. Specifically, the role of the posek is now far more as a Torah teacher and as someone who can lay out the different halachic options and their implications, and less someone whose individual evaluation is the deciding force to render a ruling. In its place, the weight of the individual questioner has increased in terms of aligning the different halachic options presented with their given situation which they understand more than any other’.

This may sound radical, but I believe it has its roots in classical pesika as I explain in an article I wrote in 2014 titled ‘Process psak’ where I remarked that pesika in the postmodern world reflects ‘the nexus point where the halakhic knowledge of the posek and the self-knowledge of the shoel can meet within a coaching situation to enable the shoel to find the right answers to their questions…because ‘process psak’ seeks to empower the shoel and make them a significant contributor when discussing a question whose answer they believe should be no less theirs than of the posek.’

In conclusion, the world is changing, and while I am a halachic purest, I am also a halachic lobbyist, meaning that in order for halacha to speak to the younger generation, we need to learn how to speak halacha to the younger generation.

Rather than presuming that a questioner will follow a particular ruling, poskim must present halacha in a way that is attractive to be followed. They should treat pesika as a halachic consultation, while also recognising that while they may wish to be the “sage on the stage”, they are – in fact – a “guide on the side” whose encouragement, no less than whose scholarship, will be the critical factor in encouraging and inspiring younger people to remain loyal to halacha in our postmodern world.

For a handout that accompanies this shiur, click here.

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