ja Fall 2011_Layout 1 8/16/11 12:56 PM Page 84

Counterpoint

Halachic Decision Making in First-Rank Posekim: A Debate Between Hillel Goldberg and Michael Broyde

Rabbi Hillel Goldberg “...im rak nir’eh lanu lehatir.” The essential Moshe cherry-picked the decision he found word is nir’eh. reasonable because it could be defended as n exchange between Rabbis Aharon Wiener translated the context of that well as another decision that could emerge ALichtenstein and in phrase, and the phrase itself, this way: “ . . . from the sources. the pages of Jewish Action (“Dear Reb but in cases of great need . . . we are cer- Broyde says this is “a common Aharon,” summer 2010) prompted a letter tainly obligated to rule [leniently] only if it situation in Jewish law.” by Rabbi Michael Broyde, which prompted appears to us to be permitted [emphasis However, while nir’eh does denote “it a letter by Yosef Wiener, which now added], and it is forbidden for us to be appears,” it frequently connotes something prompts a letter from me. among the humble . . . .” very different, certainly in the writings of I wish to comment on one point in the Rabbi Broyde objects to this translation, many first-rank posekim. exchange between Rabbi Broyde and and he is right to do so, insofar as im rak In my acquaintance with the Chazon Wiener, namely, the approach of does not mean only if. It means if only, or, as Ish, for example, when this intro- Moshe Feinstein to halachic decision-mak- Rabbi Broyde prefers, if merely. However, duces one of his comments with “it ap- ing (pesak halachah) as reflected in a criti- Rabbi Broyde’s rendering of the entirety of pears,” what this connotes is that a mere cal methodological statement in one of Rav Rav Moshe’s words remains problematic. mortal, about to make a pronouncement on Moshe’s responsa. Rabbi Broyde translates: the Divine Law—a being of flesh and blood The stakes here are broad: not only the “ . . . but in cases of great need . . . we are who will someday expire, about to act in fundamental method of Rav Moshe Fein- certainly obligated to rule [leniently], even light of the tremendous weight of genera- stein, but of other first-rank posekim, too. if we merely deem it plausible to be lenient tions of halachic masters and claiming to The issue is the definition of intellectual [my emphasis], and it is forbidden for us to reflect the will of God Himself—will couch honesty within halalchic decision-making. be among the humble . . . .” his halachic conclusions modestly. He will The difference of opinion between We arrive at the essence of the issue in say only, “nir’eh, it appears.” Rabbi Broyde and Wiener shows that, in the interpretation of Rav Moshe: Is leniency That is vis-a-vis halachic history. essence, the correct interpretation of even the right way to go if “it appears to us” to be But in the Chazon Ish’s determination one single word in a sophisticated rabbinic permitted—if our best halachic reasoning to ascertain the Divine intent in the given responsum can make a critical difference. leads us to a lenient conclusion—or if we case, he is not hedging when he uses nir’eh. Rabbi Broyde cites a short phrase of merely “deem” a leniency “plausible”? The halachic rulings of that formidable Rav Moshe Feinstein, and, in essence, Writes Rabbi Broyde: “Rav Moshe giant are often introduced by “nir’eh”—an builds a theory of halachic decision-making meant that in cases of urgent need, ‘a posek expression of modesty before the tradition, on one word in that phrase. Rabbi Broyde can adopt an understanding of the halachah coexisting with a ferocious determination writes that his critic, Wiener, “misunder- that he genuinely thinks is reasonable, even to have his halachic ruling seen as nothing stood” him. if he himself recognizes that other under- less than compelled by the sources. I don’t think so. I think Wiener did un- standings of the Talmudic sources can be Likewise, in my acquaintance with the derstand Rabbi Broyde, did have the correct just as correct . . . .’” comments of the on the reading of Rav Moshe, and that it was Rabbi Is that what Rabbi Feinstein actually Shulchan Aruch, when this extraordinary Broyde who misunderstood Rav Moshe. I said? The essence comes down to that one posek introduces a source with “it appears say this notwithstanding Wiener’s confu- single word: nir’eh. to me” (nir’eh li), what this connotes is a sion of im rak and rak im, which Rabbi Nir’eh indeed denotes “it appears.” That hammering conviction, not a mere plausi- Broyde correctly pointed out (see below). is, “I am not dogmatic on the question.” bility. The issue is whether plausibilities in From this, bolstered by Rav Moshe’s intro- So, too, in my acquaintance with Rav halachic sources may be snatched up at ductory im rak (“if only”), out pops Rabbi Moshe, when he writes (I translate literally will, or whether authoritative halachic Broyde’s “even if we merely deem it plausi- now), “ . . . if only it appears to us to rule le- analysis operates on the basis of what ble.” That is, Rabbi Broyde says that Rav niently,” the connotation is: The full force of Wiener calls “conviction.” Moshe says: Take your pick among the plau- my polymathic halachic knowledge yields a The phrase and the word of Rabbi Fein- sibilities. According to Rabbi Broyde, Rav lenient ruling here because it is compelled by stein that Rabbi Broyde focuses on is this:

84 I JEWISH ACTION Fall 5772/2011 ja Fall 2011_Layout 1 8/16/11 12:56 PM Page 85

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 Sukkot in ? questioner that the sources do not really say what Rav Moshe says they decisively say. The choiice is easy!! There is a way of indicating that a conclusion is merely “plausible” — for example, im rak heichah timtza—but Rav NEEWW SRRAAEL & Moshe did not write that. He wrote nir’eh, expressing his conno- tatively clear conviction. INTERNAATTIONAL CCAALLING ² 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 ac- knowledged 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 com- pelling 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 con- tains 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 gen- eral 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 abbi Hillel Goldberg’s insight that Jewish law authorities fre- Rquently 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 finan- cial 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.

Fall 5772/2011 JEWISH ACTION I 85 ja Fall 2011_Layout 1 8/16/11 12:56 PM Page 86

But it is not and this is clear for and I certainly agree that Rabbi Feinstein is ting forward halachic insights in times of three reasons. not saying that one should put forward a urgent need that even the posek in question First, Rabbi Feinstein is not writing in Jewish law answer that one merely thinks recognizes are less than 100 percent com- this paragraph about this particular matter is plausible but yet is wrong. Rabbi Fein- pelling. The words nir’eh lanu used by anymore, but he is writing more generally stein means that there are cases where Rabbi Feinstein here are to denote the cate- about how Jewish law ought to operate in posekim think an idea is correct, but yet gory of ideas that are more likely than not all cases for all decisors (posekim). Thus, he other posekim advanced contrary ap- to be correct, but not at all “compelled by invokes the plural phrase nir’eh lanu “it ap- proaches that lead to a different result and the sources.” pears to us” —a phrase not used anywhere one cannot prove his idea to be any more Thus, Rabbi Goldberg’s reading of the else in Iggerot Moshe to voice his view—ex- persuasive or correct than a number of source is reasonably, but actually incor- actly to tell the reader that he is speaking other valid approaches that are also correct. rectly, confusing the rabbinic idiom nir’eh here not in a merely modest tone about his In such a case, generally one should be silent, view, but about how Jewish law needs to since he might very well not be able to be leaniyat da’ati with a factual statement of function for us all. That is why this whole proved correct. However, in a case where how things actually appear (nir’eh lanu). paragraph is written in the plural (anachnu, the lenient approach will allow a couple to The phrase “I have a frog in my throat” and lanu, mechuyavin). In time of urgent need, remain married, or prevent a fellow Jew “I have a cyst in my throat” are very similar Rabbi Feinstein claims, a posek should rule from stumbling into prohibited activities, or but totally different types of statements, in as he deems reasonable to be lenient. avoid a Jew’s financial loss, a posek must that in the former all the words have a non- Second, Rabbi Feinstein invokes the voice it anyway, as that is the job of great literal meaning and in the latter all the plural phrase nir’eh lanu “it appears to us”— posekim. If my translation is not correct, words have a literal meaning. One word can a phrase used only one other time (YD 1:33) and Rabbi Goldberg’s is correct (and Rabbi change everything from an idiom to a fac- and used to note an empirical fact—to tell Feinstein was speaking about only ideas tual recitation. So too, here: nir’eh lanu is the reader that he is speaking about an em- that his “polymathic halachic knowledge not an idiom, and nir’eh leaniyat da’ati is. pirical fact that something merely appears yields a lenient ruling here because it is Thus, one sees that my translation is to be lenient (what I translated as “deem it compelled by the sources”), there is no rea- correct—in a case of urgent need, Rabbi Fe- plausible to be lenient”), and not simply son to limit sharing such categorically cor- instein recognizes that a posek may share rect views to cases of urgent need; rather, in modestly voicing his view. In Iggerot Moshe, approaches that merely “appear” to be cor- the phrase nir’eh lanu (“it appears to us”) is all cases, one ought to share what one rect, but are far from “compelled by the not a humble recitation inserted before one thinks is the indisputable truth. Of course, I sources.” voices one’s view, but a factual claim about certainly agree that Rabbi Feinstein is not in g how matters appear. favor of advocating ideas that a posek him- Rabbi Michael J. Broyde is professor of law at Third, there is an analytic proof that self does not think are true and correct, but Emory University School of Law in Atlanta, Geor- this approach is correct. Rabbi Goldberg I think Rabbi Feinstein is advocating put- gia, and a dayan of the Beth Din of America.

s"xc Why did the Chofetz Chaim & R' Chaim Ozer Grodzinsky start EZRAS ?

TO SAVE TALMIDEI CHOCHOMIM FROM THE PAIN AND SHAME OF POVERTY n an ideal world, those who devote Funds, Wedding Orphan Assistance, Yom their lives to Torah would be Tov Grants and Special Need's Grants STAND UP Irecognized as the spiritual heroes that and Loans. FOR TORAH! they are. Support Ezras Torah's Tzedakah Make a life of Torah devotion and Help Ezras Torah's Programs and make that ideal a reality. commitment an everlasting edifice that In Eretz Yisrael today, Ezras Torah will bring us the Rabbonim, Dayanim and committed scholars and provides Housing, Emergency Medical Leaders of tomorrow! families stand strong!

I would like to help Ezras Torah! Please contact me regarding establishing an Ezras Torah Fund for a: Ì Ì Ì Enclosed is my tax-deductible Endownment Fund Emg. Medical Fund Free Loan Fund Yes! contribution for: Name Ì $18 Ì $36 Ì $100 Ì $250 Address Ì $360 Ì $500 Ì $1,000 Ì Other $_____ City State Zip Method of payment: Phone Ezras Torah Ì Check Ì Visa Ì M/C Ì A/E Ì DISC. Make payments to: EZRAS TORAH publishes the Acc. # 235 East Broadway, famed Ezras Exp. Date: New York, NY 10002, 212-227-8960 Torah Luach  Ezras Torah is a non-profit 501(c)3 federally tax-exempt charitable organization.

86 I JEWISH ACTION Fall 5772/2011 ja Fall 2011_Layout 1 8/16/11 12:56 PM Page 87

The National Association of Day Schools Serving Special Children The New Jersey Association of Jewish Day Schools Divisions of Yachad/NJCD Proudly present: Two Conferences in One! “ Torah Al Pi Darko- Reaching all of our Students”

National Special Education Professional Development – 2 Day Conference Monday, November 7th at the Headquarters , New York. • 8:30 a.m.– 4:30 p.m. And Tuesday, November 8th at the Joseph Kushner Hebrew Academy Livingston, New Jersey • 8:00 a.m.– 3:15 p.m. Tu e s d a y’s conference is in conjunction with the New Jersey Association of Jewish Day Schools Statewide Professional Development Conference. Keynote speaker: Dr. Jeffrey Lichtman, Rick Lavoie, and Dr. Rona Novick.

Highlighted Speakers SPECIAL LIMUDEI KODESH EDUCATION: & SECULAR STUDIES: Dr. Joel Dickstein Dr. Alex Bailey Dr. David Katz Rabbi Naftali Helfgot Dr. Rebecca Mannis Rabbi Naphtali Hoff Dr. Jill Slansky Dr. Kristina Scharaldi

Workshop concentrations in Early Childhood, Elementary, and Middle School Levels, Mental Health, Administration, and Special Education.

Special presentation by Faculty of Rhode Island College: “Baseball and the Curriulum: Sports, Schools, and the Community”

For pricing, further information, and to register, contact Batya Jacob at (212) 613-8127 / (551) 404-4447 or [email protected]

Please note: Special travel subsidy available on a limited basis for educators outside the NY/NJ area. For a complete conference schedule, to register online, and for a list of participating vendors, visit www.njcd.org/schoolservices.