Monday, January 01, 2007

Halakhic Discussions and Poskim Bashing

A recent article in the Jerusalem Post quotes a doctor who specializes in infertility issues who raised the issue of “Orthodox Infetility” -- i.e. infertility where the woman has a very short cycle and the keeping of Hilchos Niddah with all its chumras can result in difficulty in the woman conceiving. This doctor suggested that the entire Jewish world cease keeping certain chumras related to Hilkhos Niddah, in particular what is know as the Minhag d’Rabbi Zeira.

Now this suggestion has many halakhic problems, which I will not go into here. Suffice it to say that many very prominent poskim and talmidei chachamim, including R Moshe Feinstein, R. Ovadya Yosef and Rav. Y.D. Soloveichik considered and rejected this very hetter for this very purpose.

Furthermore, it is not altogether clear to me that the person suggesting this, not to mention many in the J-Blogosphere who have supported him, even understand all the halakhic parameters.*

The current essay does not address these halakhic intricacies, however. Rather, it addresses what has become a common-place rhetorical device which is trotted out every time a controversial or sensitive halakhic issue comes out. Sooner or later, someone who is desirous of a hetter will say (or blog) something like, “the current poskim are cowards” or “they are fearful of sticking their neck out and advocating a hetter” or “the poskim lack the courage to be mattir” or some variation thereof.


This line of rhetoric was popularized some 30 years ago by a prominent Orthodox academic who claimed to have single-handedly found the solution to the modern-day Agunah problem. The problem was, virtually no poseik nor talmid chacham of any stature agreed – and in fact several vehemently disagreed. His retort – the poskim all really agreed with him, but they were all “afraid” of a negative reaction from the nefarious “right.”

The gemara in Berachos 19a is pertinent:

”One who talks after the biers of Torah scholars {who denigrates them after their death}” What is this? As we learn: He {Akavia ben Mehalalel} would say: we do not give the convert nor freed maidservant to drink {the bitter waters} And the Sages say: we do give to drink. And they said to him {Akavia}: there was a story with Karkemit, a freed maidservant in Yerushalayim, and Shemaya and Avtalyon gave her to drink.

And he {Akavia} said to them {the Sages}: as a dugma they caused her to drink And {as a result} they {the Sages} excommunicated him {Akavia}, and he died in a state of excommunication And the court stoned his coffin {after his death}.

Rashi gives as explanation of dugma -- Akavya was alleging that the reason Shemaya and Avtalyon give this woman to drink was that they were descended from converts, and they had a desire to legitimize and mainstream converts, and so they held as the Sages held.


Amazing! What did Akavia do to deserve excommuncation? He called into question the integrity of two of the Chachmei ha Masorah in paskening a shaylo! That was enough to put him into nidui and stone his coffin after his death!

The charge that poskim are “afraid” to poskein as they believe is correct is a grave act of hotzaas shem ra – for after all, there is an issur of los saguru mipnei ish. Anyone who makes this claim has to explain how these poskim violate this issur.

The charge is also belied by history and common sense. All three of the prominent talmidei chachamim I cited above at one time or another held controversial positions and issued controversial psakim. Indeed, R. Moshe Feinstein was subject to physical threats over his psakim on artificial insemination. They were undeterred from holding as they believed were correct. That being the case, what reason would one have to believe that in some other area – e.g. agunot or hilkhos niddah, they would be any less fearless to paskein as they believed appropriate?

Simply put, the charge as applied to the gedolei ha poskim is utterly bogus and is a rhetorical dodge used to hide weak halakhic arguments.

Now before anyone attempts to give counter-examples, let me cite two examples of reluctance to issue a psak which are legitimate and do happen, although not for the reason charged:

1. Humility – It is a truism that not everyone who is a talmid chacham is on the same level, and certainly not everyone who is a talmid chacham is a gadol ha dor. There are many fine, outstanding talmidei chachamim who certainly learn very well and know how to pasken, yet they defer to those they consider greater than them. This is what in Yiddish used to be called breite pleitzes – broad shoulders. Certain talmidei chachamim, by dint of their outstanding learning and yiras shomayim are deferred to by others.

2. Public Policies Require Broad Acceptance – Certain areas of halakha affect only individuals or small groups of people. Other areas affect the public at large. For example, a determination in the area of agunos and eishes ish has the potential for affecting whether certain families can marry into others. One can easily see that, if one group of poskim were to hold by a hetter in agunos and others did not, that klal yisroel could quickly become split into different camps who cannot marry one another. That is something we simply cannot afford at this point in history.

For that reason, there are poskim who will seek a general consensus in these “public policy” type halakhos because they do not wish to create such a split. That perforce sometimes means not insisting upon all of one’s views, no matter how strongly held.

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*Apart from the Minhag d’Rabbi Zeira (which is that even for a tiny speck of blood, a woman must count 7 clean days), there is also (a) a gezeira of Rebbe that every instance of menstrual blood by a woman be treated as safeik niddah/safeik zava and (b) the minhag of the Rema to wait at least five days before a woman can do a hefseik tahara. The din under (a) is even more severe than the Minhag d’Rabbi Zeira and cannot be undone without a beis din greater than that who established it. If you do away with the Minhag d’Rabbi Zeira but keep the gezeira of Rebbe then, practically, you have helped very few women with infertility by OTOH, the minhag of the Rema is more lenient, and indeed the poskim do discuss how one can be lenient on that minhag where there are fertility issues.

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