Who is a Posek?

The ready-made access to Sforim means that a student of Torah is able to muster sources which are relevant to a particular Halachic issue at will. Whether it is through Bar Ilan’s excellent resource, hebrewbooks.org, or plain google/bing searches,  those who have the will may well find a way through the halachic maze. There are many “ask the Rabbi” style websites, ranging from the askmoses variety, through to wesbsites featuring personalities such as Rav Aviner and Rav Ovadya, to kollelim with a halachic branch whose members are ready and able to respond to curly questions. There are a range of online mailing lists, of open and closed variety that one can approach and thereby interact with people , past psokim and mekoros related to the question at hand. There are also the encyclopaedic style Nitei Gavriel seforim or specialist seforim devoted to just one area of halacha in a compendium.

Clearly, the concept of “your local orthodox Rabbi” is important. To answer a halachic question, the context of the questioner is often critical. A Posek may issue a different answer to the same question depending on who the questioner is and their particular context. This aspect is often lost on those who read quotes ascribed to various Poskim.

Whereas in the past, Psokim have exclusively been published L’Halacha and U’LeMa’aseh, in learned responsa, we  now have exposure, in both English and Hebrew, to what I would call halachic surveys. Rabbi Bleich of YU may have been one of the earliest to publish regular quality reviews of recent halachic responsa. The Rabanut also has publications devoted to this purpose. Everyone is acquainted with articles in Tradition of a halachic variety and the RJJ journal and more.

It seems to me that whilst ready made access is a great thing, it may also induce a dangerous sciolism where para-students convince themselves that they can research and pasken. They may feel that they can use such resources to be Medameh Milsa LeMilsa or to ascribe a Mesora or find a Tana D’M’Sayeyah.

To be sure, aspects of pure ritual, even complex ones, may be dealt with in this way. Matters which are clear in Shulchan Aruch don’t need a Posek. They need a Talmid! For example, one can research where it is permitted to interrupt prayer. Other issues, even seemingly mundane, are more complex. For example, may one wear sunglasses on Shabbos? This question itself depends on various factors: the health needs of the questioner, the scientific data on the risks of exposure to the sun in a particular locale, the determination of what is considered “clothing” and what is considered an appendage, the style of sunglasses in respect of whether they are commonly removed outdoors or whether they are commonly perched on the head when not in use, and indeed whether giving a permissive ruling for one locale or person may cause others to be Moreh Hetter for themselves. This last point cannot be stressed enough.

I remember reading about the question of giving a Hetter to an establishment to remain open on Shabbos through the device of shutfus with a Goy. This issue came up recently and one Rabbi allegedly said words that “it’s done everywhere”. Rav Soloveitchik, however, did not permit it under any circumstances. The reason given by the Rav was that whilst one may be able to ensure that the current owner’s quality of Shabbos and adherence to Shabbos will be unaffected, who can decide whether such a practice will have an effect on the children and grand children? The credentialed Posek must make a determination that transcends the particular question and examine, perhaps with a value judgement, the effect of such a Psak on future generations. These are not lightweight matters and they are not the domain of the “ordinary” Rabbi.

More recently, we have witnessed certain practices and innovations that can be considered as חדש according to any definition. Two examples include the ordination of women to a quasi-rabbinatic position and the emergence of Shira Chadasha style services that push the envelope of acceptable Tfilla B’Tzibur to, or beyond, a limit. What type of Posek is qualified to deal with such issues? The issues are discussed online, of course, and survey-style articles have been written discussing various aspects, but these articles in of themselves do not qualify as Psak. At best, they can be L’Halacha but certainly not L’Maaseh. The careful author will always state this. A professional with Smicha for whom Toroso is not Umanoso, and who seemingly has little credentials heretofore in Psak across all 4 Chelkei Shulchan Aruch is not someone who can simply parachute down into an issue and render a binding decision or a Psak that should be relied on, both LeHatir or LeIssur on matters of such gravity. Similarly, an halachic academic who  may well be brilliant and has Smicha, but who does not devote their time to Psak across the 4 Chelkei Shulchan Aruch, is possibly also not the type of person who should render momentous and critical Piskei Din.

I am an academic, albeit not in the sphere of Judaism. A Posek learns how to pasken especially through the shimush he undertakes which is a continuation of a Mesora. At University, there is no Mesora by definition. We can and should choose an argument because it makes most logical sense as long as we can justify it to (some) peers. The study of halacha is an intellectual exercise, but the determination of halacha by a Yid transcends the intellectual exercise. It must envelop a fealty to a Mesora that began from Moshe Rabeinu. It must be brave enough on Pesach to say that although one can’t see a reason to be Machmir on item X, since that is the Mesora of one’s family, that family is choshesh to this chumra and on Pesach, Yidden have a specific Mesora to be Machmir.

On the other hand, one cannot also be frozen by so called Daas Torah. The Rav notes that in pre-war Europe there was no such concept of Daas Torah. This is a new innovation, ironically, which some, like Rav Nachum Rabinowicz have said is also ill-defined. A Rav HaMuvhak, however, is a concept which is explicit in Shulchan Aruch in Yoreh Deah Hilchos Kvod Talmidei Chachomim (see the Aruch Hashulchan for example).

There are three categories of Rabbi.

  1. The Rav Hamuvhak
    Rav Yosef Eliyahu Henkin: a leading posek in America before R' Moshe Feinstein

    who one normally (but not necessarily) has learned most of one’s Torah from

  2. A Rav, Talmid Chacham who has taught you.
  3. A Rav, Talmid Chacham who hasn’t taught you.

In general, our local Rav is not category 1. Indeed, in our day, there is not a single person in category 1; rather  a range of Rabbi’s who are Muvhakim, and who are now called Gedolim. Who can say that Rav X is greater than Rav Y? The bottom line is that your Rav, or local orthodox Rabbi will consult a Rav in category 1 on a needs basis. Indeed, knowing when one needs to consult is one of the primary reasons R’ Moshe Feinstein apparently directed his Smicha program towards.

So where does it leave us, the lonely man in the street? I can’t speak for anyone else but myself, of course. Innately, when I read or speak or hear a Rav who seems to be category 1, I just know they are. How? You can ask them a question and they don’t just blurt out a set of Tshuvos and then inform you that on the balance of matters, one should act like this. This a category 2 Rabbi in my mind. A category 1 Rabbi immediately sees Gemoras. He sees how those Gemoras interrelate to the question. He has to reconcile Gemoras and then Rishonim and Achronim. He is able to do that at will. He will develop his thoughts, often out loud . He may well change his mind between the bottom of a stair case until he reaches the top of the stair case (as was alleged by Rav Tendler about R’ Moshe). He has access to primary sources. He isn’t a prisoner to Acharonim. He considers himself an Acharon (albeit humbly in most cases). As an example, consider the case of brushing one’s teeth on Shabbos with tooth paste. Some will tell you straight away that it’s a machlokes between the Shmiras Shabbos Kehilchoso and others. Fine. You can read that in an English compendium of Hilchos Shabbos today. Rav Soloveitchik however, was Mattir toothpaste on Shabbos. Why? Because he said that toothpaste didn’t qualitatively constitute the Melacha defined in the Gemora and later codified in Shulchan Aruch. Some call this “Breyte Playtzes” or “wide shoulders”. That is true, but you have to be able to back it up. Peer review and analysis has to be something that a Rav can stand up to and argue his way through.

On the other hand, when a talmid of Rav Soloveitchik, came to ask whether he could invite a Mechallel Shabbos to his house, even though there was a high likelihood that the guest would drive, the Rav would not budge. He said it was absolutely Assur. The Talmid tried to explain there was a chance of Kiruv etc. The Rav didn’t budge. The Talmid then told the Rav that the Shoel U’Meyshiv was lenient in such a situation (as is R’ Shlomo Zalman, apparently). The Rav’s reply was educational:  “Nu, the Shoel U’Meyshiv is an Acharon and I am an Acharon. I say it’s Assur”.

Author: pitputim

I'm a computer science professor in Melbourne, Australia although my views have naught​ to do with my employer. I skylark as the band leader/singer for the Schnapps Band. My high schooling was in Chabad and I continued at Yeshivat Kerem B'Yavneh in Israel.

4 thoughts on “Who is a Posek?”

  1. >It seems to me that whilst ready made access is a great thing, it may also induce a dangerous sciolism where para-students convince themselves that they can research and pasken. They may feel that they can use such resources to be Medameh Milsa LeMilsa or to ascribe a Mesora or find a Tana D’M’Sayeyah.

    100%. One of the unique rabbinic challenges of the day is to articulate to the masses what they bring to the table in terms of psak. The yeshivishe velt puts great effort into hashkafic indoctrination, so it is obvious to yeshivishe people that learning seforim doesn’t make you a posek. Outside of that camp it may not be obvious, and rabbis will have to figure out how to convey it in a convincing way. I once termed a contemporary phenomenon the existence of “semi-talmidei chachomim, or semi-am-haratzim,” which is a unique challenge to rabbinic authority. The same rabbis who have been pushing talmud torah for the masses now must deal with its fallout. People who are exposed to many sources in the Gemara, rishonim, halachic literature are not going to view rabbis the way people who sat through an En Yaakov shiur did.

    Like

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