A Look at Leniency and Stringency and at Halakhic Ruling: B. The Role of the Posek and the Nature of Halakhic Decision-Making (Column 742)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I defined the terms “leniency” (kula) and “stringency” (chumra), and we saw that a halakhic leniency means opening up more options, irrespective of how convenient any given option is for the addressee of the law. Now we will consider the implications of this distinction for the role of a halakhic decisor (posek) and for the very meaning of halakhic ruling.

Separating Two Planes of Consideration

According to a naïve view, a “lenient” posek is one who, from among all the options, chooses for the questioner the “lenient” (more convenient) course of action; hence the astonishment at the leniencies of the author of Beit HaLevi cited in the previous column. Ultimately, I explained there that this is not the posek’s job. The posek is supposed to present to the questioner the full set of legitimate halakhic options, for he functions as a halakhic expert (like a physician). He lays out the options, explains the levels of stringency or hiddur, the costs and benefits of each option, and there his role ends. The choice among the options is made by the questioner. He is the one who decides which to choose, and the considerations are his. As I explained in the previous column, while laying out more options usually enables freer choice, and those seeking convenience will often succeed at that after a lenient ruling (because it leaves them with more options), convenience itself does not define leniency and stringency.

In light of that picture, we should distinguish two planes in a halakhic decision: (1) laying out the possible halakhic options; (2) choosing among them. The naïve conception of “ruling leniently,” as described above, assigns it to the second plane: a lenient posek is one who chooses the easiest (most convenient) option. But as we have seen, ruling leniently pertains specifically to the first plane. A posek who sets out the full range of options will be considered more lenient than another posek if he presents more options than the latter. I now wish to argue that the second plane—i.e., choosing among the options, what to do in practice—belongs to the person himself (the questioner), not to the posek.

The questioner may choose what is most convenient for him (not to recite the blessing), or what most advances him spiritually (to recite it). It may be that he chooses to commit a prohibition—for what is forbidden or permitted is not in his hands—but that is his choice. Naturally, this choice is made according to the questioner’s inclinations, spiritual level, impulses, convenience, or any other consideration. At this stage the posek can at most serve as an adviser or a recommender, and above all restate the costs and benefits of each of the options.

An Alternative Formulation: Norms vs. Facts

Put differently: Halakhah is a normative system that guides our practical behavior. Halakhah deals not with facts and acts but with norms. The choice whether to obey the normative directive is a practical decision. It therefore seems reasonable that the characterization of a “lenient ruling” does not relate to operative steps (plane 2), but rather to norms (plane 1). The posek addresses the normative question—what is permitted and what is forbidden—just as a doctor addresses what medicine says regarding the case. In both instances, one consults an expert; in both, the questioner decides the practical step, what to do in fact.

Hence, when we rule leniently in cases of doubt concerning blessings (safek berakhot), it does not mean that the operative step is the easier one (= not to bless), but that the normative map is broader. When norms do not apply to the situation (= there is no obligation to bless), more possibilities open before the questioner. A leniency concerns determining the absence of a binding norm—whether a positive command or a prohibition—regarding the case at hand. The absence of a norm (of either sort) opens up more legitimate options and is therefore considered a leniency.

Rejecting Mistaken Views of the Posek’s Role

The analogy to a physician is very helpful here. The physician, too, lays out the set of options and the costs of each, but the decision belongs to the patient, and each patient will decide according to his own considerations. Obviously, if a patient chooses to commit suicide, that is not a correct medical decision; i.e., his decision does not change anything on the medical plane. The expert—the physician—is entrusted with the medical analysis, but the practical decision is made only after the expert has had his say. So too in halakhic determination. A questioner who chooses one of the options does not thereby turn the forbidden into permitted or vice versa. The facts remain what they are. But he chooses what price he is willing to pay to fulfill the halakhah; only he knows how important it is to him and how difficult or easy each option is for him, and therefore only he can decide which option to choose in practice.

There will be cases in which his choice is poor and wrong, and yet that is what he chose. The rabbi can only present the different options and their costs. Sometimes the questioner’s choice determines the “right” and “wrong” in the matter. For example, in questions of having children (family planning) it is very common that several options exist, and the choice among them depends on how much difficulty each one creates for the questioner(s). Here the rabbi cannot decide in their stead—and not only because it is not his role. Only the questioners themselves know the psychological weight of each option, how important the commandment of procreation is to them, etc. In other cases there is a correct answer for the situation, but the questioner still has to decide whether to choose it or not.

Clearly there are cases in which there is only one reasonable option on the halakhic plane, and then the posek can shorten the process and state only that option to the questioner. There is no point in laying out hypothetical options that are not halakhically possible. But in many cases there are several options, and at times—even if the posek himself favors one—he must present them all and leave the choice to the questioner.

This can be likened to the analysis I presented regarding moral decision (see, for example, column 128). I explained there that moral autonomy (or freedom) does not mean that you legislate your own values. Good and evil are given and are not in your hands. What is entrusted to you is the choice whether to do good or to do evil (and sometimes also in what manner to do good or evil). The One who determines good and evil is the Holy One, blessed be He; but the choice of what to do is in your hands. So too regarding halakhah. What determines the forbidden and the permitted is the halakhah—and the posek who represents it in the process of decision. But in the end, the questioner himself must decide what he chooses to do. As I explained, sometimes the decision itself is not objective—i.e., halakhah does not determine for all of us that some act or state is bad or good; rather there is a person for whom this is the right choice, and another for whom that very same choice is not.

One implication here concerns a very prevalent attitude in the religious public—among poskim and questioners alike—according to which the posek is supposed to “permit” or “forbid” something for me. For example, a couple debating whether to postpone a pregnancy in a given situation (both are students and it is very hard for them now to devote themselves to pregnancy and raising a child). As noted, in such questions there are often situations in which there is no single correct answer for everyone; each couple has its constraints and pressures, etc. Different couples may have different halakhic answers. Hence the very common statement that the couple should find a “lenient” posek who will permit it for them in their situation. But this is a misunderstanding. The posek cannot permit or forbid. He can describe for them the different options before them, explain the prices (halakhic, moral, human) of each option, and now leave the decision to them. Therefore there is no difference between an answer received from a “lenient” posek and that of a “stringent” posek. The posek should present to them the full set of options that stand before them; from here on, the decision is theirs.

We must understand that this is not some arbitrary division of labor. A posek who “permits” them to postpone pregnancy changes nothing in terms of halakhic truth. That remains as it is and is not in any posek’s hands. And even if the situation is flexible and requires a case-specific decision—and perhaps especially in such a case—the decision is not his. The couple knows how important this is to them, the extent of their distress, and the prices they will pay for the different decisions; only they can decide. If, before the Almighty, they made the wrong decision, the posek’s “permission” changes nothing. The decision is still wrong. A posek is a halakhic expert; he cannot permit or forbid. He only tells them what halakhah says—which means laying out the various possibilities and their prices. Just as a doctor cannot turn a dangerous step into a neutral one. A doctor who recommends a dangerous step endangers them; the “permission” they received from him will not save them.

My friend Nadav Shnerb, in his essay “The Jewish Ark of Lies,” elaborated this point. He added there that the praise often lavished on those poskim who “get to the bottom of the questioner’s mind” and tailor a ruling to each questioner is, to a significant degree, misplaced. It is not the posek’s role to plumb the questioner’s mind. He cannot do so, and therefore it is not his task. Only the questioner can do that. The posek must present the halakhic facts, and the questioner—using his own judgment (perhaps with the posek’s guidance and advice)—will decide. A posek who “gets to the bottom of the questioner’s mind” is doing the work of Heaven deceitfully. He is essentially lying to the questioner by presenting the forbidden as permitted or vice versa. Think of the classic story of a poor, miserable woman who comes to the posek with a chicken in hand and asks whether it is kosher. The prevalent myth is that the posek should realize that this is a poor and unfortunate woman and permit it for her if there is any basis to permit. But that is not his role at all. He should present to her the different possibilities: some authorities permit and others forbid; such-and-such doubts; and the rules of doubts in halakhah. He should explain what is permitted in exigent circumstances, and what counts as exigent circumstances (with examples), and now leave her to decide.

I do not wish to claim the extreme view that in all cases this is what a posek should do. At times he can see that the woman will be unable to make a balanced decision in her state, and then perhaps there is justification to rule—i.e., to decide which option to choose—in her stead. Sometimes there is no dilemma and the decision is clear and called for, and then the posek can spare himself the full study of the issue with the questioner. In practice, however, many questioners find it more convenient for the rabbi to choose for them and spare them the need to decide. When there is a dilemma, and the case does not involve especially severe distress, the rabbi should not accede to such requests. The duty and the right to decide your own question are yours alone.

Ruling Leniently in Exigent Circumstances: The Difficulty

There are halakhic rules that instruct us to be lenient in cases of doubt—for example, doubts in rabbinic law are treated leniently. But there are other situations in which poskim instruct leniencies due to exigent circumstances or great need. Already in the Talmud we find determinations such as, “Rabbi Shimon is weighty enough to rely upon in a press of circumstances,” and more.[1]

Such a mode of decision is prima facie very problematic. If halakhah instructs us to act in manner A, how can one instruct someone, under exigency, to do B? Are prohibitions permitted under exigency? For example, when a woman comes to a rabbi with a question about a trefa in a slaughtered chicken, the rabbi sees that she is in a dire economic situation and allows himself to be lenient and permit her to eat the chicken. Now the question arises: if he really holds this is the primary law, he should have permitted it always, to everyone; but if he holds that this chicken is trefa, we do not find that eating treifot is permitted under exigency. Why, then, does he allow himself to be lenient? There is an implicit assumption that the very existence of an additional opinion or another side—even though this posek does not hold like them—allows him to be lenient in exigency. This calls for explanation.

Let us take an example from the Talmud. In Bavli Shabbat 45a there is a dispute concerning muktzeh:

And does Rav hold like Rabbi Yehuda? For they asked Rav: What about moving a Hanukkah lamp away from the “Chaveri” (Gentile authorities who decreed against lighting Hanukkah candles) on Shabbat? He said to them: It is permitted. — A press of circumstances is different. For Rav Kahana and Rav Assi said to Rav: Is that the halakhah? He said to them: Rabbi Shimon is weighty enough to rely upon in a press of circumstances.

In the background is a tannaitic dispute between Rabbi Yehuda and Rabbi Shimon over muktzeh. In this sugya we are told that the Amora Rav ruled like Rabbi Yehuda, that muktzeh is forbidden. A question then arises concerning a Hanukkah lamp, which is muktzeh: is it permitted to move it because of the “Chaveri” (=Gentile authorities who forbade Jews to light Hanukkah lamps)? Rav, who rules like Rabbi Yehuda, permits moving the lamp because of exigency. Is the prohibition of muktzeh permitted under exigency? Rabbi Yehuda himself, who forbids muktzeh, apparently does not permit it. But Rav allows himself to permit it, because “Rabbi Shimon is weighty enough to rely upon in a press of circumstances.” The very fact that there is a lenient opinion allows him to act according to it in exigency, even though he himself does not rule like it.

This picture arouses precisely the difficulty we described above. According to Rav, who holds like Rabbi Yehuda, there is a prohibition of muktzeh. Why should the existence of a different view—that of Rabbi Shimon—allow him, even while he holds the opposing view, to be lenient in exigency? Any other rabbinic prohibition about which there is no dispute would not be set aside in such a situation. Why, then, for someone who holds there is a rabbinic prohibition of muktzeh is this case different from a regular rabbinic prohibition? Conversely, if Rabbi Shimon’s view is also correct, why not rule like him always, and not only in exigency?

The Rema and His Opponents

In Responsa of Mahari Mintz, §15, we read:

As for what you asked about “Ma’Sh” (= on Erev Shabbat): know, your honor, that the rich on his Sabbath and the poor all year are equal. For sometimes you will find a gaon who forbids something against his own inclination due to some reason; but his inclination leans that it is a complete permission. Then, if a concrete case comes before him and the questioner is poor, or if it is Erev Shabbat and close to Shabbat—even if he is rich, the honor of Shabbat makes him like a poor man—he permits it for him. And nevertheless the custom is to tell them the reason: for this one, “because he is poor,” and for that one, “because of the honor of Shabbat,” so that they will not wonder that sometimes he forbids and sometimes he permits.

The Rema (Rabbi Moshe Isserles), who is known for several leniencies brought in his halakhic works,[2] cites Mahari Mintz’s words in the introduction to his book Torat Chatat and writes:

And behold, I will justify myself in one matter, lest the reader suspect me: for sometimes I wrote to be lenient in cases of great financial loss, or for a pauper in a significant matter, or for the honor of Shabbat. This is because in those places it appeared to me that it is a complete permission according to the halakhah, only that the later authorities were stringent about it. Therefore I wrote that where it is not possible, one may uphold the matter in accordance with its true law. And so we find that earlier and later authorities did so. And Mahari Mintz wrote in Responsa §15 that the poor on weekdays and the rich on Erev Shabbat are equal; nevertheless, the custom is to tell them the reason—this one “because he is poor,” and that one “because of the honor of Shabbat”—so that they will not wonder that sometimes he forbids and sometimes he permits, end quote.

The Rema and Mahari Mintz explain that the leniencies in exigency and poverty, or on Erev Shabbat for the honor of Shabbat (even for the rich), apply only where the matter is permitted by primary law, but a stringency was adopted for some reason.

It follows that there is no place for leniency, even in exigency, where the law forbids the act by primary rule. Only where the matter is permitted by primary law and the practice is to be stringent is there room to be lenient in exigency or for great need. The “leniency” here is merely the removal of the extra stringency beyond the halakhic duty and a return to primary law. This, of course, resolves the difficulty raised above: we are not permitting a prohibition because of exigency; on the contrary, we are declining to impose an extra prohibition that is not present in non-exigent times (which is itself not simple). In any case, this is a novel position in halakhah, and it seems that most authorities do not accept it.

It is important to understand that according to the Rema’s approach, when we see a statement like “Rabbi Shimon is weighty enough to rely upon in a press of circumstances,” we ought to infer that the law actually follows Rabbi Shimon, only that for some tangential reason the practice is to be stringent like Rabbi Yehuda. A responsible code should then rule like Rabbi Shimon and add that a pious person should be stringent (when possible). But a review of the sugyot and the authorities shows that usually this is not the case. The aforementioned sugya in Shabbat explicitly says that Rav rules like Rabbi Yehuda, only that he is lenient like Rabbi Shimon in exigency (because of the “Chaveri”). So too Rashi writes there explicitly: “In a press of circumstances—danger; hence, not in exigency—it is forbidden.”[3]

In such sugyot three possible types of rulings appear: one can rule like Rabbi Yehuda and note that in exigency there is room to be lenient; one can rule like Rabbi Yehuda without any further note (as the poskim indeed do in Shabbat 45a),[4] and one can rule like Rabbi Shimon and add that it is proper to be stringent like Rabbi Yehuda (which is what I would expect from those who follow the Rema’s approach).

In Berakhot 9a, however, we find a different example. The Gemara there discusses whether one can recite the evening Shema close to sunrise (after dawn):

Some teach the statement of Rav Acha bar Ḥanina on this: as it is taught, Rabbi Shimon b. Yoḥai said in the name of Rabbi Akiva: Sometimes a person recites the Shema twice in one day, once before sunrise and once after sunrise, and thereby fulfills his obligation—one for the day and one for the night. This itself is difficult! You said: “Sometimes a person recites the Shema twice in one day”—which implies that before sunrise it is day; yet you then say: “thereby fulfills his obligation—one for the day and one for the night”—which implies that it is night! No; in truth it is day, and the reason they call it “night” is that there are people who still sleep at that time. Rabbi Acha bar Rabbi Ḥanina said in the name of Rabbi Yehoshua b. Levi: The law follows Rabbi Shimon who said in the name of Rabbi Akiva. Rabbi Zeira said: Provided that he does not say the blessing “Hashkiveinu.” When Rav Yitzḥak bar Yosef came, he said: That statement of Rabbi Acha bar Rabbi Ḥanina in the name of Rabbi Yehoshua b. Levi was not said explicitly, but was inferred: for that pair of rabbis became intoxicated at the wedding of Rabbi Yehoshua b. Levi’s son; they came before Rabbi Yehoshua b. Levi, and he said: Rabbi Shimon is weighty enough to rely upon in a press of circumstances.

Here we have a statement of Rashbi in the name of Rabbi Akiva that one can recite the evening Shema before sunrise (without “Hashkiveinu,” as it is not the time of going to bed), and then Rav Yitzḥak bar Yosef comes and argues that the earlier words were inferred—from “Rabbi Shimon is weighty enough to rely upon in a press of circumstances.”

This is very difficult, since in the Shabbat sugya we saw that the statement “Rabbi Shimon is weighty enough to rely upon in exigency” means that the law does not follow him—except in exigency. From Berakhot it would seem to be proven explicitly, as Mahari Mintz and the Rema said, that when we are lenient in exigency it is because that is in fact the primary law.

A look at the poskim on this sugya shows that they bring it as a law for exigent circumstances. Note, however, the wording of Rambam, Laws of Shema 1:10:

One who recites the evening Shema after dawn but before sunrise does not fulfill his obligation, unless he was under duress, such as drunk or ill, and the like; and one who recites it under duress at this time does not say “Hashkiveinu.”

One who recites the evening Shema after dawn does not fulfill his obligation—i.e., the law certainly does not follow Rashbi, for one who acts like him does not fulfill his obligation; only in exigency is there room to be lenient.[5] This view is directly opposed to the Rema’s view quoted above, which would not allow leniency where the primary law forbids.

The Shulchan Aruch (O.C. 235:4) also cites Rambam’s wording. But the Mishnah Berurah there (s.k. 30) writes:

“Does not fulfill …” — For although by Torah law “when you lie down” extends until sunrise, since there are still some people who sleep at that time, nevertheless where there is no duress the Sages revoked the mitzvah of Shema from him for having delayed so much, and he does not fulfill his obligation by reciting it then.

He sees this as a penalty imposed by the Sages. That is, by primary law this is still the time for the evening Shema; hence there is room to be lenient in exigency. The fact that one who does so (not in exigency) “does not fulfill his obligation” is only because the Sages penalized one who reads at that time without duress. Here, at least on the conceptual plane, we see the Rema’s approach: leniency in exigency is possible only where the act is permitted by primary law. Therefore he also writes here that by primary law one may read the evening Shema after dawn, and the fact that one who does so (without duress) does not fulfill his obligation is due only to a penalty. The leniency like Rashbi in exigency teaches that the law follows him even not in exigency (were it not for the penalty).

In sum, the Rema and Mahari Mintz present a rather rigid thesis regarding leniencies in exigency: only where the matter is permitted by primary law and the stringency is for some ancillary reason is there room for leniency in exigency. Where the act is forbidden by primary law, it remains forbidden even in exigency. We noted that in the sugyot and in Rambam and other Rishonim (and even in the Rema’s own words) this picture does not always appear. For example, in Shabbat 45a it seems that the leniency in exigency runs counter to the primary law.

As an anecdote illustrating the other side of the coin, consider the well-known story about the Brisker Rav (the GRIZ Soloveitchik), famous for great stringency (as is the Brisker tradition), who was seen drinking water outside the sukkah. It is written in the Shulchan Aruch (O.C. 639:2) that a God-fearing person will be stringent not to drink even water outside the sukkah. When asked to explain, he replied that he is not among the “stringent.” All he does is ensure that there is no concern that he failed to fulfill his obligation according to any halakhic view. But an act defined from the outset as a stringency he does not see himself on the level to adopt. Here we see the mirror image of the Rema: the Rema was lenient only where the matter is permitted by law; the GRIZ was stringent only where there is an opinion that the act is forbidden by law. A “pure stringency” he did not practice at all.

Relating to the Laws of Doubt: “Safeka de-Rabvata”

The Rema’s approach solves the difficulty raised above. We asked: if something is primary law, why does the existence of a lenient view change our stance? For one who rules like Rabbi Yehuda, there is a prohibition of muktzeh, and ordinary rabbinic prohibitions are not set aside because of concern for the “Chaveri.” Why should the existence of a dissenting view allow us to be lenient in exigency? According to the Rema, it does not change anything: only if we rule like Rabbi Shimon by primary law can we be lenient like him in exigency. For one who rules like Rabbi Yehuda there is no possibility of being lenient like Rabbi Shimon, even in exigency. But as we saw, in that sugya and among other poskim the picture is different: in their view, the very fact that there is another opinion allows even one who rules like Opinion A to be lenient in exigency. This is not the same as a case with no dissent, where the prohibition would not be set aside even in exigency.

We are compelled to say that the existence of differing views weakens the force of our hold on our own position (cf. the discussion in columns 244, 247, and elsewhere). If I rule like Rabbi Yehuda that there is muktzeh, but Rabbi Shimon holds that there is no muktzeh, then even according to me the prohibition of muktzeh is lighter, and there is room to be lenient. It is important to understand that this is not about the general laws of doubt. It is not correct to say that where there are two views I am “in doubt,” for if that were the case we should follow the rules of doubt: be lenient for rabbinic law and stringent for Torah law.[6] I am not in doubt—I have my own position in the matter—and nevertheless one may be lenient in exigency.[7]

This is not the place to expand on the meaning of halakhic ruling. I will only propose a preliminary direction that allows us to understand this problematic picture. Such rulings may be understood as follows: the posek to whom the question is addressed is essentially telling the questioner: “It is true that this is my view; however, you could have asked a posek who holds differently, and you may rely on his view.” If so, at least in exigency, the posek must inform the questioner that other positions exist besides his own. On this suggestion, the lenient “ruling” is not his decision at all but rather a deferral of decision and reliance on another posek’s opinion. In effect, this means that the “ruling” here is that multiple ways are possible (and that is exactly what leniency is, as we saw above, on Plane A of the halakhic decision). Now, on Plane B, the questioner himself should decide which of them to follow. Thus it can be seen as the questioner’s decision, not the posek’s.

Something like this appears in Responsa Minḥat Shlomo I §44, where he discusses buying shevi’it produce from a grocer who relies on the “heter mechirah,” and he writes as follows:

Also the Ḥatam Sofer (Yoreh De’ah §77), although he did not at all know of the Mabit, nevertheless concurred with his words and even added several proofs, and he wrote that one who practices stringency in some matter from his own reasoning or because he follows the stringent view may give of his own to one who follows the lenient view; there is no “placing a stumbling block before the blind,” nor aiding transgressors, since his fellow also knows that there are those who forbid, only that he follows those who permit. And he concludes that even in such a case, where the giver is certain it is forbidden and, in his opinion, one who permits is simply mistaken—still it is permitted. And although he cites the Sha’arei Teshuvah (on Rambam, Hilkhot Ishut 7:12) who wrote that one who is stringent not to smoke on Yom Tov is forbidden to supply tobacco to one who is lenient, due to “placing a stumbling block,” there he (the Ḥatam Sofer) rejects his proof (and see also Ḥatam Sofer, Orach Ḥayyim §66, who is astonished that the Sha’arei Teshuvah contradicts himself, for in Hilkhot Lulav 3:25 he wrote that it is permitted to sweep and give a pipe to one who is lenient, and there is no muktzeh nor “placing a stumbling block”); and he writes: “Since the proof of Sha’arei Teshuvah is refuted from the start, we stand by our view which God has enlightened us about in this matter,” end quote. And it is clear from the Ḥatam Sofer that he permits even for a Torah prohibition, see there; and in our case, which is only rabbinic, it is possible that even the Sha’arei Teshuvah, who wrote in Hilkhot Ishut to be stringent, spoke only regarding smoking on Yom Tov—for according to those who forbid, since it is not equal for all [i.e., not a universal need], it is a Torah prohibition—but for a rabbinic matter perhaps he would also agree that it is permitted.

He writes that even for a Torah prohibition, where there are two views, one who is stringent may give something (which he believes forbidden) to someone who follows the lenient view. In other words, this is not the law of doubt; for under the law of doubt we should be stringent. Rather, it is a law of stepping back from one’s own position and recognizing that other views exist.

Up to this point he discussed the conduct of a private person. He now continues and adds an implication for how poskim should relate to such cases:

And I think that if one comes to ask two sages and one forbids while the other permits—since it is a rule that for the words of the Scribes we follow the lenient view, as stated in Avodah Zarah 7a—it makes sense that even if the forbidding sage stands and cries like a crane that the permitting sage is mistaken, nevertheless if the permitting sage is also one qualified to rule, then after the debate between the forbidding and permitting sages is concluded, if the questioner returns and asks them “How should I conduct myself?” it seems that even the forbidding sage should tell him the rule that for a rabbinic matter we follow the lenient.

This appears to be exactly as we said. Here, however, he says it only regarding rabbinic law, implying that for Torah law this would not be the case. Moreover, he seems to treat it here as a doubt, unlike our earlier suggestion—for as we have seen, this is not a state of doubt but a determination that there are multiple legitimate ways. In any case, this is correct for his own position; but according to the Ḥatam Sofer himself (whose position in that responsum was different), he would likely instruct the posek to present to the questioner the lenient position even in a Torah prohibition. And that is what we argued above. It may be that the Minḥat Shlomo followed the Rema’s path and held that one should not be lenient where by primary law it is forbidden. But the Ḥatam Sofer apparently followed the second path, according to which one may be lenient even where, in the view of the posek asked, it is forbidden by law.

All this concerns ordinary ruling, not specifically exigency; therein lies the Minḥat Shlomo’s innovation. But certainly we may learn from here that at least in exigency we can relate to it this way; this provides a basis for leniency where a dispute exists. In effect, what the posek does is to put all the options on the table and leave the decision to the questioner. Why only in exigency? Perhaps because if it is not exigency, the answer is simple and obvious and there is no point in laying out additional possibilities. As I explained above, when there is no dilemma there is no point in dividing the process into two planes; the posek himself can do it all in one stroke. If so, the meaning of “ruling leniently” in exigency is also interpreted in light of the conceptual picture described above.

Relating to the Laws of Doubt: Ordinary Doubts

Up to now we have dealt with “safeka de-rabvata”, i.e., situations where there are two views among the authorities. But we should also consider leniency in exigency where there is no dispute among poskim and I myself am in doubt—halakhic or factual. Here there are two sides but not necessarily two authorities. One might argue a fortiori: if a posek may be lenient when he himself is not in doubt (in a dispute among authorities), then all the more so may he be lenient in exigency when he himself is in doubt (even in a Torah doubt, where by primary rule he should be stringent).

On the other hand, according to the Rema and those who follow him, leniency is only where the matter is possible by primary law; but for a Torah doubt there is no possibility, by primary law, to be lenient, for our duty is to be stringent. Moreover, even according to those who allow leniency where primary law forbids, the possibility of leniency is grounded in stepping back and opening the stage to another authority. But where there is no other posek with a different position, the duty to decide rests upon him; thus here, seemingly, there is no place to be lenient in a Torah doubt.

Yet in the halakhic literature we find quite a few leniencies even in such doubtful situations. For example, when the Rema is lenient to sleep in the sukkah inside one’s house (see O.C. 639:2) or to light the Hanukkah lamp inside the house (see O.C. 671:7–8), he does not rely on the existence of lenient views, but rules leniently in exigency due to considerations of his own.[8]

This can be explained as follows. When we are in a state of doubt, the rules for deciding doubtful cases apply, such as the rule that for Torah doubts we are stringent and for rabbinic doubts we may be lenient.[9] But what if we find a different mode of decision for the doubt? In that case we are no longer in doubt, and the rules for doubtful cases do not bind us. There is a well-known story about R. Yonatan Eybeschutz: a priest challenged him—why do Jews not follow the Christians, since they are the majority, and the Torah says “follow the majority”? R. Yonatan replied that the duty to follow the majority is a rule for deciding doubts; it applies only to those in a state of doubt. One who is not in doubt is not bound by the rules for doubtful cases.[10]

To illustrate the distinction between rules of conduct in doubt and rules that resolve the matter, consider an example in the other direction. There is an amoraic view that in a case of two-against-two witnesses (trei u-trei) we treat it as a rabbinic doubt (see Yevamot 30b and parallels). According to this view, a ḥazakah (presumption) applies even where two sets of witnesses contradict each other. In Kovetz Shiurim (Bava Batra §78) he asks: why should a ḥazakah help where even two witnesses would not help (for two are as a hundred)? He answers that a ḥazakah is not evidence but a rule for how to act in situations of doubt. According to this opinion, trei u-trei is an absolute doubt; in such a case, two witnesses cannot add anything—two witnesses are additional evidence, and in matters of evidence two are as a hundred. But ḥazakah is not evidence; it is a rule that tells us how to act in a doubtful situation; hence if trei u-trei is a doubt we follow the ḥazakah.[11]

We can now ask: what is the nature of the rule that in exigency one may be lenient in a case of doubt? Is it a rule of conduct, or a rule that resolves (or a third category: a rule that “as if resolves”)? If in exigency one may be lenient—meaning that all options are legitimate—then we are no longer in doubt, for we do not doubt which option is correct; all are correct. In such a case the rules of conduct for doubtful cases do not apply. Thus, at least if we do not follow the Rema (i.e., we allow leniency in doubtful cases because we recognize multiple legitimate rulings), there is room to be lenient in doubtful cases. The reason is that when two ways are legitimate, this is not a doubtful state but the situation of “who acts like this master has acted, and who acts like that master has acted” (see Shevuot 48b; Berakhot 27a; and in my essay), and therefore the rule “for Torah doubts be stringent” does not apply. Once the doubt has been resolved (or removed), there is no need to act according to the laws of doubt.

And what would we say according to the Rema? It may be that here he would join those who disagree with him and also agree that the rule of being lenient in exigency is a rule that “as if resolves.” According to him, this rule does not allow acting against primary law; but where there is doubt in primary law, perhaps he would agree that in exigency one may be lenient.

A Note on the Binary Nature of Halakhah

The entire discussion thus far has assumed a binary view of halakhah: every act is either forbidden or permitted, with no intermediate states. But one can certainly imagine a different model of halakhic decision, and for lack of space I will only note it here. One may view halakhah as consisting of various considerations on each side, and the decision is an assessment of the relative weight to be given to those reasons. There are “150 reasons to declare pure and 150 to declare impure,” and in the end the posek must decide which side prevails.

For example, in the laws of Shabbat, later authorities distinguish between two types of rabbinic prohibitions (shvut). There is a prohibition to select edible food from inedible refuse (borer), which is a rabbinic prohibition. One might understand the reason as concern that one will come to separate refuse from food; but one might also understand that such an act has certain elements of the Torah-level melakhah of borer that are not strong enough to forbid it by Torah law, yet there is room to “expand” the melakhah and forbid it rabbinically. On this view, separating food from refuse is “70%” of Torah-level borer; although it does not cross the Torah threshold, the Sages “lower the threshold” of borer and include it. By contrast, the prohibition to ride a horse lest one break a branch is a newly instituted rabbinic prohibition; there is no room to view it as “lowering the threshold” for the melakhah of reaping, for there is no form of reaping here. This is certainly a newly instituted prohibition, not “70% reaping.”

We learn, then, that not all acts are always evaluated by a binary yardstick of permitted/forbidden. Some acts may lie on a spectrum between 0 and 1, and we must set the threshold beyond which the act is forbidden by Torah law; below that threshold we sometimes forbid rabbinically.[12]

Accordingly, when the Rema writes that he is lenient only for acts permitted by law, this may be intended also for ordinary doubts (and not only for disputes among authorities). His claim is that leniencies are legitimate only where the act was forbidden due to certain elements of prohibition present in it, which are insufficient to cross the threshold of prohibition on the purely halakhic plane. Therefore, ideally one should be stringent; but in exigency there is room to be lenient.

This rationale applies to ordinary doubts as well, not only to “safeka de-rabvata.” The possibility of leniency does not require the existence of dissenting authorities; it suffices that there are counter-considerations for leniency. It may be that even in cases of “safeka de-rabvata” (where dissenting views exist) the leniency is grounded in the fact that the very existence of a dispute indicates that there are considerations for leniency within that prohibition (i.e., that it is not a sharp, unequivocal prohibition). This topic is, of course, very broad, and this is not the place to expand.

[1] See Berakhot 9a; Shabbat 45a; and Gittin 19a; likewise regarding Rabbi Elazar in Eruvin 46a, and regarding Rabbi Eliezer in Niddah 6b and 9a.

[2] The Rema permitted several matters out of human dignity—for example, betrothing a woman on Shabbat (Responsa §125), and for a kidney patient with incontinence to pray with the congregation in the synagogue, to recite the Shema, and to don tefillin (Responsa §98), and more. We also find permissions to sleep outside the sukkah due to danger (O.C. 639:2); to extinguish a fire on Shabbat due to danger (O.C. 334:26); to wear shoes on Tisha b’Av for one who is among Gentiles (Darkei Moshe, O.C. 554:6); to light the Hanukkah lamp inside the house due to danger (O.C. 671:7–8); to engage in commerce with Gentiles on their festival day (Y.D. 148:12); to drink ordinary Gentile wine (Responsa §124); to recite the Shema opposite women’s hair that commonly appears outside their braids (O.C. 75:2); as well as two well-known leniencies in the laws of terefot (Y.D. 37 and 39) on which the Beit Yosef disagrees, resulting in the difference between Ashkenazim and Sephardim regarding “ḥalak” (glatt) meat. See all these in Rabbi Dr. Asher Ziv, Rabbeinu Moshe Isserles. This is not the place to elaborate.

[3] It is difficult to assume that “forbidden” here means merely “it is proper to be stringent,” and that in truth Rabbi Yehuda by primary law agrees with Rabbi Shimon. As noted, the Gemara itself says Rav holds like Rabbi Yehuda.

[4] This does not mean they deny leniency in exigency. It may be that they treat the principle of leniency in exigency as a general principle, not unique to this case—i.e., that in any rabbinic law (at least where there is a dissenting view) one may be lenient in exigency.

[5] In the Kesef Mishneh there, he strains to explain this; but even according to him, this is Rashbi’s own position—i.e., Rashbi himself holds that one does not fulfill the obligation unless there was exigency. For our purposes, this is still a good example. See also there (in HYB?) and in the Kesef Mishneh.

[6] Where there are two views among authorities this is a “safeka de-dina” (or de-rabvata), and even in such doubtful situations it is not clear that one may always be lenient; one must also consider ḥazakah and other rules of doubt.

[7] See at length in my essay, “On Autonomy and Authority in Halakhic Decision-Making.”

[8] The assumption is that these are doubtful situations, for he does not write that one who does otherwise is an ignoramus. That is, he does not determine unequivocally that this is the law; he only says that in exigency one may act thus.

[9] Note well: the difference between a rabbinic doubt and a Torah doubt is not the recommended conclusion—leniency versus stringency—but the nature of the obligation. In a Torah doubt there is a duty to be stringent; in a rabbinic doubt there is permission to be lenient (i.e., one is not obliged to be stringent). Put differently: the main difference is better expressed by the words “obligatory” and “permitted” than by “stringent” and “lenient.” The upshot is that in a rabbinic doubt one may be lenient, but one is not obliged to do so. As we concluded above, being lenient is only about presenting more halakhic options; it does not speak to choosing any particular one. One further implication is that one who is stringent in a rabbinic doubt is not an ignoramus, nor is he considered as unnecessarily “doing what he is exempt from.” He is permitted to be lenient; he is not required to be. Indeed, according to most early authorities, the rule of “an item that will become permitted” (davar she-yesh lo matirin)—which instructs us to be stringent about a prohibition that will become permitted later—rests on the claim “rather than eat it in a state of prohibition, eat it in a state of permission” (see Rashi, Beitzah 3b s.v. “afilu,” and many others). That is, we do not permit such an item now if, after a few days, it can be eaten in a completely permitted fashion (“glatt”). This implies that eating it now, in a state of doubt—even a rabbinic doubt where one may be lenient—is not an unequivocal halakhic ruling to permit. There is permission to be lenient, but such leniency is certainly problematic. From here we may learn that if it is not exigency there is even an interest to be stringent in a rabbinic doubt.

[10] I discussed this point at length in my essay, “Autonomy and Authority in Halakhic Decision-Making.”

[11] The author of Kovetz Shiurim there also explains, in light of this principle, the rule that where “majority” and “proximity” conflict, we follow the majority (see Bava Batra 24a). He proves that following the majority is a resolving rule—that is, a rule that eliminates the doubt—and once we are no longer in doubt, the rule to follow “proximity” cannot apply, for following proximity is a rule of conduct in doubtful cases (derived from the section of the “eglah arufah,” where we do not know from which city the murderer came; see the sugya there).

[12] See an interesting example and proof for such a conception from the sugya of the “Golden City” in D. Weil, “The Logic of Ḥazal’s Completion and Greek Logic,” Higayon 1 (1989), pp. 102–124. I will note here that such a picture of halakhah relates to what is called in philosophy the “sorites paradox,” which I have discussed more than once in the past.