On Leniency and Stringency

With God's help

Festschrift for Rabbi Sperber – 2014

In Lieu of the Tribute

When the editor of this volume approached me with a request to write an article in honor of Rabbi Professor Sperber upon his reaching venerable old age, may it be for many good years, he added that I should keep his image before my eyes as I wrote. It seems to me that, in the eyes of many, that image is closely bound up with the concept of 'leniency,' and with the related (though certainly not identical), and no less charged, concept of 'changes in Jewish law' (or adapting Jewish law to changing reality). As is well known, there are those for whom these concepts are terms of reproach, and others who invoke them in praise. It seems to me that in this matter I, the humble one, join the principled position of Rabbi Professor Sperber (even if not always agreeing with every detail): the situation is more complex and less dichotomous than it is usually presented. Sometimes these concepts ought to be invoked critically, and sometimes they ought to be invoked approvingly; and the heart (and the Holy One, blessed be He) knows whether it is for straightforwardness or for crookedness.

In an earlier article[1] I outlined some preliminary lines regarding the question of changes in Jewish law, and there too I sometimes interpreted them positively and sometimes negatively. Anyone who studies that article will see that one of the main roots of the dichotomous and superficial attitude toward these concepts is the absence of a priori analysis and conceptual clarification. These are very necessary in order to formulate a position on any question, and especially on questions as charged and important as these. In that earlier article I proposed an initial systematic-conceptual clarification regarding changes in Jewish law, a concept that suffers from great vagueness. It seems to me that such inquiry sheds a different, more complex light on the dilemmas surrounding such changes.

I thought that this invitation provides an opportunity (one I have been seeking for some time) to do the same with respect to the second concept, 'leniency,' and to see where and why we ought to invoke it one way or the other. And as with the first, so with the second. The beginning of wisdom is first to clarify a priori the definition of the concept of 'leniency' itself, which is also not free of vagueness and ambiguity, and only afterwards to address questions regarding its application. At the end I will briefly return to the question of the connection between ruling leniently and halakhic change.

Because of limitations of space, I cannot encompass this broad subject here, and therefore I will make do with sketching several preliminary lines of its profile. The sources cited here are not exhaustive, and should be seen only as illustrations.

Introduction

In the traditional halakhic world, the concept of 'leniency' often evokes negative connotations. On the other hand, it cannot be denied that it has an established place in halakhic literature and in the activity of halakhic decisors. The negative connotation that accompanies unfounded leniency is not new in the world of Jewish law (see Eruvin 6b: "One who follows the leniencies of Beit Shammai and the leniencies of Beit Hillel is wicked"), but it has greatly intensified in the wake of the social and ideological changes that Jewish society has undergone over the last few centuries. Criticism and demands for halakhic reforms (in different senses and from different perspectives) have aroused, and continue to arouse, a defensive instinct on the part of the central halakhic establishment.

On the one hand, there is a feeling that the place of leniency is almost absent today from public halakhic discourse. There are many demands for easing 'from below,' but relatively little response 'from above.' Yet on the other hand, those same demands for change and leniency sometimes assume that decisors can do with Jewish law as they please. The general impression that emerges from them is that almost all halakhic directives are nothing more than local caprices of various decisors and an unwillingness to rule leniently. This picture is no less distorted, and it seems to me that it too is based in part on the same conceptual lack of clarity mentioned above.

This article seeks to contribute something to clarifying this charged and vague concept, and thereby to dispel a bit of the fog that surrounds several of the discussions about it.

A. What Is Leniency?

Introduction

The first question I would like to touch on is the very definition of the concept. What exactly is a 'leniency'? Is leniency the ruling that is more convenient for the questioner, or for the decisor (that is, the one that exacts the lowest 'price')? How is that 'price' determined? For example, it is told of Rabbi Yekutiel Yehuda Halberstam, the previous Rebbe of Sanz-Klausenburg, that he sat in the sukkah even when it rained (despite the exemption for one who is in discomfort), because for him it was more painful not to be in the sukkah on the festival. If such a person faces a rabbinic doubt in which he should rule leniently, is his leniency to sit in the sukkah or to exempt himself from sitting? By contrast, the previous Lubavitcher Rebbe did not sleep in the sukkah on the festival, on the grounds that sleeping in the sukkah in the presence of the encompassing divine light causes him distress. We see that there are Jews for whom convenience lies precisely in fulfilling the commandment; from their perspective, does ruling leniently mean obligating fulfillment of the commandment or exempting one from it?

One could solve this by saying that the opinions of these Rebbes are nullified in comparison with everyone else, and that the concepts of 'leniency' and 'stringency' are determined in accordance with the average person, who certainly does not relate this way. If we accept this, the question shifts to the psychological plane: why does the average person really see not sitting in the sukkah as a leniency and not as a stringency? But here I want to address the question on the essential plane: why is this in fact a leniency? Why does Jewish law itself see it that way? Is this merely psychology, or is there a more substantive definition here?

On Leniencies That Look Like Stringencies

To sharpen the point, let us consider a passage from a story brought at the end of the first volume of Brisk Haggadah, MiBeit Levi (ed. M. M. Gerlitz), Jerusalem, 1983, pp. 305–306:

On one of the visits of the master, the author of Beit HaLevi, to the city of Minsk, one of the wealthy and powerful men of the city, who belonged to the camp of the Maskilim, entered and suggested to him that the time had already come for the great rabbis of the generation to try to ease the severe laws somewhat, and thus surely those who had distanced themselves from the path of Torah would once again draw near.

The author of Beit HaLevi smiled and revealed to the proposer of this honorable proposal that in fact he himself was among the rabbis who had for ages been very lenient in many laws…

'It is the way of merchants not to display all their wares immediately,' answered the author of Beit HaLevi. 'So I too will offer you seven examples, and they will testify to the rest of my merchandise'…:

• Some are stringent that the time for the evening prayer extends only until midnight, and afterwards one may no longer pray. I have ruled leniently that one may pray until dawn.
• Some are stringent regarding the tefillin of Rabbeinu Tam that one must have an established reputation for piety in order to wear them. I have ruled that anyone may wear them.
• Some are stringent not to recite liturgical poems in the middle of the prayer because that constitutes an interruption in the prayer. I have ruled leniently that one may recite them.
• Some are stringent not to study on the eve of Tisha B'Av when it falls on the Sabbath. I, however, have ruled leniently that one may study even actual laws.
• Some are stringent not to fast on Rosh Hashanah. I have ruled leniently that it is permitted.
• Some are stringent that one may not observe two days of Yom Kippur. I have ruled leniently that it is permitted to fast for two days.
• Some are stringent that if one forgot one night to count the Omer, one can no longer count with a blessing. I have ruled leniently that one may count with a blessing.

One can only imagine the reaction of that 'Maskil' upon hearing these 'leniencies.' But our concern here is not stories of Maskilim; it is the interesting halakhic angle that peeks through here. In the halakhic context one may ask why these really are not leniencies. Why is the feeling aroused in us one of irony, mockery, or brushing someone off? After all, the author of Beit HaLevi did in fact permit what others forbade. So why are these not leniencies? Or perhaps they really are genuine leniencies? It does not seem that there is merely a problem here of hostile Enlightenment, since the author of the above Haggadah himself brings the story as an anecdote. If these were ordinary leniencies, what novelty did he find in this story? Seemingly there is here nothing more than a collection of leniencies, and no more.

Is the Definition of Leniency Connected to a Conflict of Interests Between Us and Jewish Law?

The intuitive feeling is that we somehow stand 'opposite' Jewish law, and therefore the legal interest is always stringency, while our interest (=convenience) is leniency. Is that really the basis for the definition of leniency?

To understand that this is not the case, let us look at the laws of blessings. The rule in Jewish law is that in cases of doubt concerning blessings we go leniently (see Berakhot 21a and the decisors). We must now ask ourselves what it means to be lenient regarding a blessing. Does leniency mean that one may bless despite the doubt, or that leniency means not to bless? Despite disputes on this issue, all decisors hold that the leniency is not to bless. That is, if a person is holding an apple in his hand and does not remember whether he recited the blessing or not, he may not recite it. The Talmud ties this to the rule that a rabbinic doubt is resolved leniently, that is, this directive receives the title 'leniency.' Why indeed is this a leniency? Seemingly this is a stringency, for it forbids us to do something. Another possibility would be that it is permitted to bless, or that one is obligated to bless. Obligation too is a stringency, since it imposes something upon us. Therefore we would have expected that the leniency here would be that one may bless but is not obligated to. Seemingly it emerges from here that in the Talmud itself, not only among the 'wicked Maskilim,' leniency means not performing the commandment. And from here it follows that a leniency such as the seventh leniency of Beit HaLevi is indeed not a leniency.

However, further reflection shows that blessings are a more complex case, because if we were to permit blessing there would be a cost to such a directive: an unnecessary blessing, which is forbidden because of "You shall not take the Name in vain" (the decisors disagree whether its prohibition is biblical or whether it is rabbinic and the verse is merely a support-text). If so, the rule that doubtful blessings are treated leniently means that one is not obligated to bless, not that one is forbidden to bless. But a blessing for which we are not obligated is forbidden because of "You shall not take the Name in vain". If so, there is leniency in the laws of blessings, but stringency in the laws of "You shall not take the Name in vain". And indeed some decisors maintain that the prohibition of an unnecessary blessing is not biblical, and therefore they permit blessing in such a case, since this is a doubt regarding a rabbinic prohibition.[2]

The conclusion that emerges from this picture is that a lenient ruling in the case of doubtful blessings means that one is not obligated to bless, not that one is forbidden to bless. The prohibition against blessing is a stringency, not a leniency; it is a result of stringency in the laws of "You shall not take the Name in vain". This means that a lenient ruling opens before us the maximum number of options: to bless or not to bless. Only because there is, in addition, a prohibition of an unnecessary blessing does the leniency in the laws of blessings lead to a prohibition against blessing. But that prohibition is not a direct result of the lenient ruling; it is a side effect of it. There is here leniency in the laws of blessings, and stringency in the laws of "You shall not take the Name in vain".[3]

Leniency Is the Opening of the Maximum Number of Options

We thus see that the definition of leniency is not the outcome that is more comfortable for the person (=not to bless). Even for a person who tends to bless, the ruling that one is not obligated to bless is the leniency. Why? Because the ruling that does not obligate blessing opens before us more options than the other two rulings, and is therefore what is defined here as a leniency. Once the options are open, each person will decide between them according to his own inclination. The Klausenburger Rebbe would presumably have blessed (were it not for the prohibition of "You shall not take the Name in vain"), while other people, less eager to fulfill commandments, would have omitted the blessing even if an unnecessary blessing had been permitted.

To sum up, the definition of a lenient ruling is a ruling that allows more halakhic options; that is, one that imposes fewer constraints upon us. This is true whether the options are options to fulfill, or options not to fulfill. Opening options for performance is a leniency just like opening options for non-performance (=omission).

If we now return to the story about the author of Beit HaLevi, surprisingly our conclusion is that it really is a list of leniencies. In all those cases he rules that a person may bless or pray, not that he must do so. These are leniencies that allow performance rather than omission, but they are still leniencies, because they open options that in the alternative ruling would have been forbidden. The reason such leniencies are not beloved by one who stands 'opposite' Jewish law is that if there is indeed an option to fulfill the commandment, it is likely that the Holy One, blessed be He, expects us (and perhaps even commands us) to do so. But as we saw in the context of blessings, this too is a side effect and not a direct implication of the lenient ruling.

At the margins of these remarks we may note that a state in which more options are open to us is indeed more comfortable for us, psychologically as well. Not necessarily because we love not to perform commandments, but because the absence of constraints is indeed a leniency on the objective plane. This does not follow from our seeing ourselves as standing 'opposite' Jewish law, that is, as if our interests are opposed to its own. As we saw, sometimes the options that are opened precisely enable us to perform a commandment, and yet this is still called a leniency. The decision what to do with the options opened before us בעקבות a lenient ruling is what reflects our spiritual inclination. But that belongs to the psychological sphere of the discussion. The classification of the ruling itself as a leniency is unrelated to that, and lies entirely in the objective halakhic sphere.

A Separation Between Two Planes of Reference

In light of the picture presented here, a distinction is called for between two planes of reference: 1. the presentation of the possible halakhic options; 2. the choice among them. The naïve conception of ruling leniently assigns it to the second plane. According to this conception, the decisor is supposed to choose for the questioner the 'lenient' step (the one more comfortable for him), and from this arises the puzzlement regarding the leniencies of Beit HaLevi. But in light of what we have said here, that is not the decisor's task. The decisor is supposed to present to the questioner the full range of legitimate halakhic options, and the questioner then decides which of them to choose. The characterization of a ruling as a leniency pertains only to the first plane of the discussion, not the second. Once the options have been presented, the questioner himself, the addressee of Jewish law, is the one who must choose among them. He does so according to his inclinations, his spiritual level, his impulses, his convenience, or any other consideration. Here the decisor can at most serve as an adviser or a recommender. Choosing the easier or more comfortable option is the questioner's business, and that is not what is meant by a lenient halakhic ruling.

Put differently, the characterization 'leniency' does not refer to operative steps (which are the concern of plane 2), but to norms (which are the concern of plane 1). When we rule leniently in the case of doubtful blessings, this does not mean that the operative step is the easiest one (=not to bless), but that the norms do not apply (=there is no obligation to bless), and therefore more possibilities are opened to the questioner. Leniency concerns a determination that no norm, whether a positive commandment or a prohibition, applies to the case at hand. The absence of a norm (of either type) opens more legitimate options, and therefore it is considered a leniency. Below we will see several further implications of this conclusion.

B. A Lenient Ruling in Pressing Circumstances

On the Problem Itself

There are halakhic rules that instruct us that in situations of doubt we may go leniently. For example, a rabbinic doubt is treated leniently. But there are other situations in which decisors issue lenient directives because of pressing circumstances or great need. Already in the Talmud we find rulings such as "Rabbi Shimon is worthy to be relied upon in pressing circumstances" and the like.[4]

Such a mode of ruling is, on its face, highly problematic. If Jewish law indeed instructs us to behave in way A, how can one instruct someone in pressing circumstances to do B? Is it permitted, in pressing circumstances, to violate prohibitions? For example, if a woman comes to a rabbi with a question about a terefah in a slaughtered chicken, and the rabbi sees that she is in difficult economic circumstances and allows himself to be lenient and permit her to eat the bird, the following question arises: if he indeed thinks that this is the law, he should have permitted it to everyone always. But if he thinks that this chicken is non-kosher, then we do not find that prohibitions of terefah and eating forbidden foods are permitted in pressing circumstances. Why, then, does he allow himself to be lenient? There is an assumption here that the very existence of another opinion, or of another side to the question (see below on the difference between those two), even though he himself does not accept it, enables him to be lenient in pressing circumstances. This requires explanation.

Let us take another example from a Talmudic passage. In Babylonian Talmud, Shabbat 45a, a dispute is brought regarding the laws of muktzeh:

And does Rav really hold like Rabbi Yehuda? But they asked Rav: What is the law regarding moving a Hanukkah lamp because of the chaveri on the Sabbath? And he said to them: It is entirely permitted. — Pressing circumstances are different. For Rav Kahana and Rav Ashi said to Rav: Is that the halakhah? — He said to them: Rabbi Shimon is worthy to be relied upon in pressing circumstances.

There is a tannaitic dispute between Rabbi Yehuda and Rabbi Shimon regarding the laws of muktzeh. In this passage it is reported that the amora Rav ruled like Rabbi Yehuda, that muktzeh is forbidden. The question then arises regarding a Hanukkah lamp that is muktzeh: may one move it because of the chaveri (=Gentiles who decreed that Jews were not permitted to light Hanukkah candles)? Rav, who rules like Rabbi Yehuda, permits moving the lamp because of pressing circumstances. Is the prohibition of muktzeh permitted in pressing circumstances? Rabbi Yehuda himself, who forbids muktzeh, presumably does not permit this. But Rav allows himself to permit it, because Rabbi Shimon is worthy to be relied upon in pressing circumstances. The fact that there is a lenient opinion allows him to act in accordance with it in pressing circumstances, even though he himself does not rule that way.

This picture raises the difficulty we described above. According to Rav, who holds like Rabbi Yehuda, there is here a prohibition of muktzeh. Why does the fact that there is another opinion, that of Rabbi Shimon, enable him—even though he himself holds the opposite view—to be lenient in pressing circumstances? Any other rabbinic prohibition, concerning which there is no dispute, would not be set aside in such a situation. So why, according to one who holds that there is a rabbinic prohibition of muktzeh, is the situation here not like an ordinary rabbinic prohibition? On the other hand, if Rabbi Shimon's opinion is also correct, then why should we not always rule in accordance with it?

The Dispute Between the Rema and Those Who Differ from Him

In the responsa of Mahari Mintz, Cracow, 1882, sec. 15, he writes as follows:

As for what you asked regarding the eve of the Sabbath: you know, your honor, that a wealthy person on Sabbath eves and a poor person all year are equivalent. For sometimes you will find a great authority who forbids something contrary to his own opinion for some reason or other, while his own view inclines to the conclusion that it is entirely permitted. Then, if a case comes before him and the questioner is poor, or if it is the eve of the Sabbath and close to the Sabbath—even if he is wealthy, the honor of the Sabbath renders him like a poor person—he permits it for him. Nevertheless, the practice is to tell them the reason: this one because of his poverty, and that one because of the honor of the Sabbath, so that they will not wonder why at times he forbids and at times he permits.

The Rema, who is known for several leniencies brought in his books of halakhic rulings,[5] cites the words of Mahari Mintz in the introduction to his book Torat Chatat, Piotrków, 1904, and writes as follows:

And here I will excuse myself in one matter, so that the reader will not suspect me: at times I wrote leniently in cases of great financial loss, or for a poor person in an important matter, or for the honor of the Sabbath. The reason is that in those places it seemed to me that, according to the law, it was entirely permitted, except that the later authorities of blessed memory were stringent in the matter. Therefore I wrote that where it is impossible, the matter should be left on its original legal footing. And so too we find that the earlier and later authorities acted in this way. And Mahari Mintz wrote in his responsum, sec. 15, that a poor person all the weekdays and a wealthy person on Sabbath eves are equivalent; nevertheless the practice is to tell them the reason—this one because of his poverty and that one because of the honor of the Sabbath—so that they will not wonder why at times one forbids and at times one permits. End quote.

The Rema and Mahari Mintz explain that leniencies in pressing circumstances, in poverty, or on the eve of the Sabbath for the sake of the honor of the Sabbath (even for a wealthy person), apply only where the matter is permitted according to the core law, but for some reason it has become customary to be stringent.

It follows from this that there is no room for leniency in a case of need where the act is forbidden according to the law itself. Only where the matter is permitted by the core law, but it has become customary to be stringent, is there room to be lenient in pressing circumstances or because of great need. It seems that this is a rather innovative approach in Jewish law, and it appears that most decisors do not accept it.

It is important to understand that according to the Rema's approach, when we encounter a statement like "Rabbi Shimon is worthy to be relied upon in pressing circumstances," we should really conclude that the law follows Rabbi Shimon, and that there is merely some side reason to behave stringently in accordance with Rabbi Yehuda's view. A responsible code of law should therefore, in such a case, present Rabbi Shimon's opinion as the law, and write that a scrupulous person should be stringent (when possible). But an examination of the passages and the decisors shows that this is generally not the case. The passage in Shabbat cited above states explicitly that Rav rules like Rabbi Yehuda, except that he is lenient like Rabbi Shimon in pressing circumstances (because of the chaveri). So too Rashi writes there explicitly: "In pressing circumstances—that is, danger; from this it follows that when there are no pressing circumstances, it is forbidden."[6]

In such passages there are three possible rulings: one may rule like Rabbi Yehuda and note that in pressing circumstances there is room to be lenient. One may rule like Rabbi Yehuda without any further remark (and that is indeed what the decisors do in the case of Shabbat 45a).[7] And one may rule like Rabbi Shimon and note that it is proper to be stringent like Rabbi Yehuda (which is what we would have expected from those who share the Rema's approach).

However, in Berakhot 9a we find a different example. The Talmud there discusses whether one may recite the evening Shema close to sunrise (after dawn has risen):

Some taught this statement of Rav Acha bar Chanina in connection with the following baraita: Rabbi Shimon bar Yochai 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 as the daytime Shema and one as the nighttime Shema. This itself is difficult: you said, 'Sometimes a person recites the Shema twice in one day,' which implies that before sunrise it is already daytime; and then you teach that he fulfills by them one of day and one of night, which implies that it is still night! No; in truth it is daytime, but it is called 'night' because there are people who are still sleeping at that hour. Rabbi Acha bar Rabbi Chanina said in the name of Rabbi Yehoshua ben Levi: The halakhah follows Rabbi Shimon, who said this in the name of Rabbi Akiva. Rabbi Zeira said: Provided that he does not recite Hashkivenu. When Rav Yitzhak bar Yosef came, he said: That statement of Rabbi Acha bar Rabbi Chanina in the name of Rabbi Yehoshua ben Levi was not said explicitly, but only by implication. For a certain pair of rabbis became drunk at the wedding feast of Rabbi Yehoshua ben Levi's son, and they came before Rabbi Yehoshua ben Levi, and he said: Rabbi Shimon is worthy to be relied upon in pressing circumstances.

We have here a statement of Rashbi in the name of Rabbi Akiva that one may recite the evening Shema before sunrise (without Hashkivenu, because that is not the time for going to sleep). Then Rabbi Yitzhak bar Yosef comes and argues that Rabbi Acha bar Chanina's words were said only by implication, namely that Rabbi Shimon is worthy to be relied upon in pressing circumstances.

This is very difficult, for in the passage in Shabbat we saw that the statement "Rabbi Shimon is worthy to be relied upon in pressing circumstances" means that the law does not follow him except in pressing circumstances. Seemingly, the passage in Berakhot proves explicitly like Mahari Mintz and the Rema: when we are lenient in pressing circumstances, it is because that is the law according to its fundamental definition.

Examining the decisors on this passage shows that they presented this law as applying only in pressing circumstances. But attention should be paid to Maimonides' wording, Laws of Shema 1:10, where he wrote:

One who recited the evening Shema after dawn has arisen, before sunrise, has not fulfilled his obligation unless he was compelled, such as if he was drunk or ill or the like; and one who was compelled and recited at that time does not say Hashkivenu.

One who recited the evening Shema after dawn did not fulfill his obligation. That is, the law certainly does not follow Rashbi; nevertheless, in pressing circumstances there is room to be lenient like him.[8] This is a position that directly contradicts the view of the Rema cited above, according to which one may not be lenient where that is not the core law.

The Shulchan Arukh, Orach Chayim 235:4, also brought Maimonides' wording. But the Mishnah Berurah there, subsec. 30, wrote:

'Has not fulfilled, etc.'—For although by Torah law we read 'when you lie down' until sunrise, because there are still some people who sleep at that time, nevertheless where he was not compelled, the Sages removed from him the commandment of the Shema because he delayed so long, and he can no longer fulfill his obligation by reciting it then.

He understands this as a penalty imposed by the Sages. That is, according to the core law this really is a time for the evening Shema, and therefore there is room to be lenient in pressing circumstances. The fact that one does not fulfill the obligation is only because the Sages penalized one who reads at such an hour without pressing circumstances. If so, we return to the Rema's position above: one may be lenient in pressing circumstances only where the act is permitted according to the core law. Here too, according to the core law it is permitted to recite the evening Shema after dawn, and the reason one does not fulfill the obligation is only because of a rabbinic penalty. The leniency like Rashbi in pressing circumstances teaches that indeed the law follows him even outside pressing circumstances (were it not for the penalty).

To sum up, the Rema and Mahari Mintz present a fairly rigid thesis concerning leniencies in pressing circumstances. Only where the matter is permitted according to the core law, and what makes us stringent is some side reason, is there room for leniency in pressing circumstances. Where the act is forbidden according to the core law, it remains forbidden even in pressing circumstances. We noted that in the Talmudic passages, in Maimonides, and in other medieval authorities (and also in the Rema's own words), this does not seem to be the full picture. For example, in the passage in Shabbat 45a it appears that the leniency in pressing circumstances runs against the core law.

As an anecdote illustrating the other side of the coin, let us mention a well-known story about the Brisker Rav (=Rabbi Yitzhak Zev HaLevi), who was known as extremely stringent (as is characteristic of the house of Brisk), and who was seen drinking water outside the sukkah. As is well known, the Shulchan Arukh (Orach Chayim 639:2) states that a God-fearing person should be stringent and not even drink water outside the sukkah. When he was asked to explain this, he answered that he was not at all among the stringent. All that he did was to ensure that there be no concern whatsoever that he had not fulfilled his obligation according to some halakhic opinion. But an act that is defined from the outset as a pure stringency he did not regard himself as being on the appropriate level to perform. Here we see the mirror image of the Rema: the Rema was lenient only where the matter is permitted by the law, and the Brisker Rav was stringent only where there is some approach according to which the act is forbidden by the law. A stringency that is a pure stringency he did not adopt.

The Relation to the Laws of Doubt: A Dispute Among Authorities

The Rema's approach solves the puzzlement presented above. There we asked: if this is the core law, why does the fact that there is a lenient opinion change our attitude? For one who rules like Rabbi Yehuda there is a prohibition of muktzeh, and ordinary rabbinic prohibitions are not set aside because of fear of the chaveri. So why does the fact that there is a dissenting opinion enable us to be lenient in pressing circumstances? According to the Rema, in truth it changes nothing at all. Only if we rule like Rabbi Shimon in the core law is there room to be lenient like him in pressing circumstances. For one who rules like Rabbi Yehuda, there is no possibility whatsoever of being lenient in accordance with Rabbi Shimon, even in pressing circumstances.

But as we have seen, a different picture emerges from this passage and from the decisors. According to that view, the very existence of view B allows even one who rules like view A to be lenient in pressing circumstances. This is not like a case in which there is no other opinion, where the prohibition would not be set aside even in pressing circumstances.

We are forced to conclude that there is here a conception according to which the existence of differing opinions undermines the firmness of our hold on our own opinion. If I rule like Rabbi Yehuda that there is muktzeh, but there is Rabbi Shimon's opinion that there is no muktzeh, then even in my own eyes the prohibition of muktzeh is lighter, and there is room to be lenient regarding it. It is important to understand that this is not a matter of the laws of doubt. It is not correct to say that where there are two opinions I am in doubt, for if that were so we would have to proceed according to the laws of doubt: leniently in rabbinic matters and stringently in Torah matters.[9] I am not in doubt, for I have my own position in the passage under discussion, and yet I am still permitted to be lenient in pressing circumstances.

To address this question we would have to enter the foundations of halakhic ruling and its meanings, and this is not the place to elaborate. Here I will only suggest a preliminary direction that enables us to understand this problematic picture. The decisor to whom the question comes says to the questioner: this is indeed my opinion, but you could have asked another decisor whose opinion is different, and you are permitted to rely on him. If so, at least in pressing circumstances, the decisor is obligated to reveal to the questioner that there are also opinions different from his own. According to this proposal, the lenient ruling is not his ruling; it is a withdrawal from ruling and reliance on the opinion of another decisor. It may be that this should be seen as the questioner's ruling, not the decisor's.

Something along these lines is found in Rabbi Shlomo Zalman Auerbach, Responsa Minchat Shlomo, Jerusalem, 1986, part 1, sec. 44. There he discusses purchasing Sabbatical-year produce from a shopkeeper who relies on the sale permit (heter mekhira), and writes the following:

Also, the Ketav Sofer, in Yoreh De'ah sec. 77, although he had no knowledge at all of the Mabit, arrived at the same view and even added several proofs. He wrote that one who personally follows a prohibition in some matter, either on the basis of his own reasoning or because he adopts the position of those who forbid it, is permitted to give of his own to someone who follows the lenient position, and this does not violate "do not place a stumbling block" nor the prohibition of assisting transgressors, since the other person also knows that there are those who forbid it, but he follows those who permit it. He also concludes that even in such a case, where the giver himself thinks it is certainly forbidden and, in his view, the one who permits is simply mistaken, nevertheless it is permitted. Although he cites the Sha'ah Melekh, who wrote in chapter 7 of the Laws of Marriage, halakhah 12, that one who is stringent not to smoke on a festival may not provide tobacco to one who permits it because of "do not place a stumbling block," see there that he rejects this proof (and see also the Ketav Sofer, Orach Chayim sec. 66, who wondered that the Sha'ah Melekh contradicts himself, for in chapter 3 of the Laws of Lulav, halakhah 25, he wrote that one may honor someone and give him a pipe if he follows the lenient position, and this does not violate muktzeh or "do not place a stumbling block"). And he wrote: 'Since the proof of the Sha'ah Melekh is rejected from the outset, we stand by our words, which God has illuminated for us in this matter,' end quote.

And it is clear from the Ketav Sofer that he permits this even in a Torah prohibition

, see there. In any case, in our case, which is only rabbinic, it is possible that even the Sha'ah Melekh, who wrote stringently in the laws of marriage, was stringent only regarding smoking on a festival, because according to those who forbid it on the ground that it is not equally suited for everyone, it is biblically forbidden; but in rabbinic matters it is possible that he too, of blessed memory, would agree that it is permitted.

He writes that even in a Torah prohibition, where there are two opinions, one who is stringent may give something that in his view is forbidden to one who follows the lenient opinion. This shows that we are not dealing with the laws of doubt, for by the laws of doubt we should have had to be stringent. Rather, this is a rule of withdrawing from my own position and recognizing that there are other positions as well.

Up to that point his discussion concerned the conduct of a private individual. He now continues and adds an implication regarding the conduct of decisors:

And I think that if someone comes to ask two sages and one forbids while the other permits, since the general rule is that in matters of rabbinic law one follows the lenient opinion, as stated in the Talmud, Avodah Zarah 7a, it is reasonable that even if the one who forbids stands and cries out loudly that the one who permits is mistaken, nevertheless, if the one who permits is also a sage qualified to issue rulings, then it seems that if, after the debate between the forbidding and permitting sages has concluded, the questioner returns and asks them again, 'How should I conduct myself?' it is reasonable that even the one who forbids must tell him that general rule, that in rabbinic matters one follows the lenient opinion.

Seemingly this is exactly our point. Except that here he says it only regarding rabbinic law, implying that in Torah law this is not the case. For some reason it seems that here he treats the situation as one of doubt, and that is not like our suggestion above. But it seems that this is true only according to his own view. According to the same line of thought, it appears that the Ketav Sofer himself—whose view he cites as different from his own—would have instructed the ruling sage to present to the questioner even the lenient position in a Torah prohibition. And that is precisely our point above. It may be that the author of Minchat Shlomo followed the path of the Rema, who held that one may not be lenient where, according to my own understanding of the core law, the matter is forbidden. But the Ketav Sofer apparently followed the second path, and in his view one may be lenient even where my own opinion is that the law forbids it.

Admittedly, all this concerns halakhic ruling in an ordinary situation, and not specifically pressing circumstances, and in that lies the innovation of Minchat Shlomo. But certainly one can learn from this that at least in pressing circumstances it is possible to relate to the matter in this way, and that this is a basis for the possibility of leniency where there is a dispute.

The Meaning of This: What Is 'Leniency'?

It should be noted that this picture is a direct result of the distinction between the two planes of discussion of which we spoke in the first chapter. There we saw that ruling leniently means presenting a broader range of options to the questioner. We also saw that the choice among them is the questioner's business, not the decisor's (who may only recommend what to choose). Here too we see that in pressing circumstances the decisor is charged with presenting to the questioner the whole range of options and leaving the choice to him. More than that: that is precisely what a lenient ruling means. In pressing circumstances, even views with which the decisor does not agree may be treated as legitimate views, and therefore the number of legitimate options available here increases. Let us sharpen the point: a lenient ruling enables the questioner who so desires (like Beit HaLevi, or the Klausenburger Rebbe) to be stringent, and not necessarily to be lenient. As we saw, ruling leniently means presenting more possible options, whether the additional options are lenient or stringent. Choosing among them is not the business of the decisor but of the questioner, and it is not connected to the question of ruling leniently.

The Relation to the Laws of Doubt: Ordinary Doubts

Up to this point we have dealt with a dispute among authorities, that is, a situation in which there are two opinions. But there is also room to wonder about a lenient ruling in pressing circumstances in a case where there is no dispute among the decisors, and rather I myself am in doubt, whether halakhically or factually.

At first glance one might derive this by an a fortiori argument: if a decisor may be lenient when he himself is not in doubt (in a dispute among authorities), then all the more so he may be lenient in pressing circumstances when he himself is in doubt (even in a Torah-level doubt, where according to the core law he should have been stringent).

On the other hand, according to the Rema and those who follow him, the ability to be lenient exists only where the matter is possible according to the core law. But in a Torah-level doubt there is no possibility according to the core law of being lenient, for our duty there is to be stringent. Moreover, even according to the other views concerning leniency, which allow one to be lenient even where according to the core law the matter is forbidden, in light of what we said above the possibility of leniency is based on stepping aside and opening the stage to another opinion. But when there is no decisor with another position, the duty to decide rests upon him, and therefore here there would seemingly be no room to be lenient in a Torah-level doubt.

Yet in halakhic literature we find quite a few leniencies even in doubts of this sort. For example, when the Rema permits sleeping during Sukkot inside one's house (see sec. 639:2) or lighting the Hanukkah candle inside the house (see sec. 671:7–8), he does not rely on the existence of lenient opinions, but rules leniently in pressing circumstances because of considerations that he himself has for leniency.[10]

This can be explained as follows. When we are in doubt, rules of decision apply to us that are intended for cases of doubt, such as the rule that in Torah matters one must be stringent, whereas in rabbinic matters one may be lenient.[11] But what if we find another form of deciding the doubt? In such a case we are not in doubt at all, and therefore there is no obligation upon us to act according to the rules of decision for doubts. The well-known story is told about Rabbi Jonathan Eybeschitz, to whom a priest objected: why do we Jews not act like the Christians, after all they are the majority, and the Torah says "follow the majority"? Rabbi Jonathan answered that the obligation to follow the majority is a rule of decision for situations of doubt, and therefore it applies only to one who is in doubt. One who is not in a state of doubt is not subject to the rules of decision that govern doubts.[12]

To illustrate the distinction between rules of conduct in doubt and rules that resolve doubt, let us take an example in the opposite direction. There is an amoraic approach that where two witnesses testify one way and two testify the opposite way, the case is treated as a rabbinic doubt (see Yevamot 30b and parallels). According to this approach, the original presumption is effective even in a case of two sets of witnesses that contradict one another. Rabbi Elchanan Wasserman, in his book Kovetz Shiurim, Tel Aviv, 1964, Bava Batra sec. 78, asks why a presumption is effective where even two witnesses would not have been effective (after all, two are like a hundred). He answers that a presumption is not evidence but a rule of decision in cases of doubt. According to this approach, the case of two against two is a state of complete doubt. In such a state, two witnesses cannot add anything, because two witnesses are additional evidence, and with evidence we accept the principle that two are like a hundred. But a presumption is not evidence; it is a rule that instructs us how to act in situations of doubt, and therefore if two against two is a state of doubt, then in that case too we should follow the presumption.[13]

We may now ask: what is the nature of the rule that in pressing circumstances one may be lenient in a case of doubt? Is it a rule of conduct, or a rule that resolves doubt (or perhaps a third type: a rule that is 'as if it resolves')? If in pressing circumstances one may go leniently, meaning that all the options are legitimate, then at that point we are no longer in doubt, for we have no doubt which option is correct. In such a situation all the options are correct. Therefore the rules of conduct in situations of doubt do not apply here. We thus learn that at least if we reject the Rema's view—namely, if we allow leniency in cases of doubt because we recognize both paths as legitimate rulings—then there is room to be lenient in cases of doubt. The reason is that when both paths are legitimate, this is not a situation of doubt but a situation of "one may act like this authority and one may act like that authority" (see Shevuot 48b and Berakhot 27a, and in my above-mentioned article in Meisharim), and therefore the rule that a Torah-level doubt is treated stringently does not apply here. Once the doubt has been resolved, there is no need to act according to the laws of doubt.

And what according to the Rema? It may be that here he joins those who differ from him, and also agrees that the rule of going leniently should be seen as a rule that quasi-resolves. In his view, this rule does not permit acting against the core law, but where there is doubt about the core law itself, it may be that he too would agree that in pressing circumstances one may be lenient.

A Note on the Binarity of Jewish Law

All of the discussion until this point has assumed a binary conception of Jewish law, according to which every act is either forbidden or permitted, with no middle states. But one can certainly think in terms of a different model of halakhic decision, and because of lack of space I will only note it here.

There is room to see Jewish law as composed of different considerations on each side, and the ruling is a decision about how to weight those considerations against one another. There are one hundred and fifty reasons to declare pure and one hundred and fifty to declare impure, and in the end the decisor must decide which side prevails.

For example, in the laws of the Sabbath, later authorities distinguish between two types of rabbinic prohibitions called shevut. There is a prohibition against selecting food from waste, which is a rabbinic prohibition. One can understand the reason for the prohibition as a concern lest one come to select waste from food. But one can also understand that such an act has certain dimensions of the labor of selecting itself; although those dimensions are not strong enough to forbid it biblically, there is room to extend the labor of selecting and forbid it rabbinically. According to this conception, selecting food from waste is 70% of biblical selecting, and therefore although it does not cross the threshold of a Torah prohibition, the Rabbis expand and lower the threshold of the prohibition of selecting and include within it even selecting food from waste. By contrast, the prohibition against riding a horse lest one detach a branch is a different kind of rabbinic prohibition. There is no room to view this as a rabbinic extension (or lowering of the threshold) of the labor of reaping, for there is no form of reaping here. That is certainly a novel rabbinic prohibition, and not 70% of reaping.

We thus learn that acts are not always measured on a binary scale of forbidden or permitted. Some of them may lie on a continuum between 0 and 1, and one must determine the threshold from which onward the matter is biblically forbidden. Below that threshold we sometimes forbid it rabbinically.[14]

According to this, when the Rema writes that he is lenient only in acts that are permitted by the law, he may mean this even regarding an ordinary doubt (and not only a dispute among authorities). His claim is that leniencies are legitimate only in situations where the act is forbidden because it has certain dimensions of prohibition, but those dimensions are not sufficient to cross the threshold of prohibition on the pure halakhic plane. Therefore one should initially be stringent, but in pressing circumstances there is room to be lenient.

This reasoning applies also to ordinary doubts, and not only to a dispute among authorities. The possibility of leniency does not require the existence of other opinions; it is enough that there are additional considerations for leniency. It is possible that even in cases of disagreement among authorities, the permission to be lenient is based on the fact that the existence of a dispute is an indication that there are grounds for permission in this prohibition (that is, that it is not an unequivocal prohibition).

This subject is, of course, a very broad one, and despite its clear connection to our matter, it requires a discussion of its own, and this is not the place for it.

C. Ambiguous Situations: Leniency Versus the Consideration of Minimal Cost

Introduction

In this chapter I would like to deal briefly with ambiguous situations, that is, situations in which it is difficult to define which directive should count as a stringency and which as a leniency.

Pathological Situations: An Asymmetry Between Leniency and Stringency

A first example is found in Ketubot 15b, where we find a discussion of majority with respect to an abandoned infant:

To return to the matter itself: If one found there an abandoned infant, if the majority are Gentiles, he is a Gentile; if the majority are Jews, he is a Jew; if it is half and half, he is a Jew;

The Talmud determines that where there is an abandoned infant and his origin is unknown, his status is determined according to the environment in which he is found: if there is a Jewish majority, he is considered Jewish; if there is a Gentile majority, he is considered Gentile. If the situation is half and half, then he is in a state of doubt, and for Torah matters one must be stringent. Later in the passage various practical consequences are discussed, and they are decided according to the laws of doubt (leniently in rabbinic matters and stringently in Torah matters). A question may arise here: what should he do regarding Torah study or Sabbath observance? In both of these obligations there is a situation in which a Jew has an obligation (and not merely permission) to do them, while a Gentile is forbidden (and not merely not obligated). If so, with respect to these two questions there is no solution that is either leniency or stringency, because every halakhic ruling carries with it some halakhic cost. There is no 'safe' ruling that can be viewed as a stringency.

What creates the difficulty here? Usually one thinks that a stringent solution is one with no halakhic cost. For example, regarding the question whether one is obligated to save his life, either there is an obligation to save him (on the Sabbath) or there is not. In such a case, a stringent ruling means that there is an obligation to save him. Such a ruling is stringent because it carries no halakhic cost alongside it (at most, we saved someone whom we were not obligated to save). But in a situation in which each of the two possible rulings entails a prohibition (=a halakhic cost) if we were mistaken, it is difficult to define what is leniency and what is stringency.

In a certain sense, doubtful blessings are also like this: on the one hand, there is an obligation to recite a blessing of enjoyment; on the other hand, there is a prohibition against reciting an unnecessary blessing. If so, every ruling carries a cost with it: if we bless, perhaps we recited an unnecessary blessing; if we do not bless, perhaps we enjoyed this world without a blessing. We saw there that the ruling is a lenient one, and it works as follows: with respect to the obligation to bless, this is a rabbinic obligation, and therefore we rule leniently. This does not mean that we decide not to bless; rather, we decide that both paths are legitimate (as we saw, leniency means the absence of a norm, or opening the maximum number of options). But with respect to the prohibition of "You shall not take the Name in vain", if that is a Torah prohibition then we rule stringently, namely, not to bless. Only the combination of those two directives together yields the final halakhic ruling. In this case, since it is a rabbinic obligation against a Torah prohibition, the ruling is not to bless. The final ruling is neither leniency nor stringency, because it pertains to the question of what to do in practice, whereas leniency and stringency concern the existence or nonexistence of norms, not the practical decision. The final ruling on the practical plane is a combination of two rulings on the normative plane: leniency (regarding blessings) together with stringency (regarding "You shall not take the Name in vain").

And what about the abandoned infant? There there is a prohibition for a Gentile to keep the Sabbath, and there is a prohibition for a Jew not to keep the Sabbath. These are two Torah prohibitions, and therefore we have here a collision with no simple solution within the laws of doubt. Yet according to our definitions, the situation is different from what one might have thought. The lenient ruling is in fact well defined even here. We saw that a lenient ruling means that both possibilities are legitimate, and that will be true here as well.[15] The stringent ruling is not unambiguously defined here, because proceeding stringently from both sides leads us to contradictory outcomes.

If so, the conclusion from our discussion is that leniency and stringency are not always complementary rulings. We see here that there are cases in which the state of leniency is clearly defined, while the state of stringency is not defined.

To be sure, when we separate the discussions and address each prohibition independently, stringency is also well defined. With respect to the prohibition on a Gentile's keeping the Sabbath, the stringent directive is not to keep the Sabbath. With respect to the obligation of a Jew to keep the Sabbath, the stringent directive is to keep the Sabbath. The problem arises only when the two prohibitions are combined in one and the same situation. But as we saw above, in such a discussion it is not correct to speak of leniency and stringency, because leniency and stringency refer to prohibitions (=norms) and not to operative rulings. Even in these cases, the state of stringency is well defined with respect to each of the two prohibitions, and it is only with respect to the operative directive for the situation as a whole that it is not defined. The conclusion is that stringency and leniency are always defined in a univocal way with respect to the halakhic norm (a prohibition or an obligation). The ambiguity is a feature of situations with respect to which we must apply several halakhic norms together. The ambiguity characterizes reality, not Jewish law.

'Passive Omission Is Preferable'

What, then, does one do in such cases? Seemingly, the obvious solution for situations of this kind is the principle that 'passive omission is preferable.' The source is the passage in Eruvin 100a, which also deals with a situation in which norms of the same type collide:

Rav Huna the son of Rav Yehoshua said: This is subject to a tannaitic dispute. If offerings whose blood is applied in one placement became mixed with others requiring one placement, they are to be applied in one placement. If those requiring four placements became mixed with those requiring four placements, they are to be applied in four placements. If those requiring four placements became mixed with those requiring one placement, Rabbi Eliezer says: They are to be applied in four placements. Rabbi Yehoshua says: They are to be applied in one placement. Rabbi Eliezer said to him: But he thereby violates 'do not diminish'! Rabbi Yehoshua said to him: But he thereby violates 'do not add'! Rabbi Eliezer said: That was stated only when the matter stands by itself. Rabbi Yehoshua said to him: The prohibition of 'do not diminish' too was stated only when the matter stands by itself. And Rabbi Yehoshua further said: When you give, you violate 'do not add' and perform an action with your own hands; when you do not give, you violate 'do not diminish' but do not perform an action with your own hands. According to Rabbi Eliezer, who said there that positive action is preferable, here too he should descend. According to Rabbi Yehoshua, who said there that passive omission is preferable, here too he should not descend. — Perhaps not: Rabbi Eliezer said there that positive action is preferable only because he performs a commandment; but here, where he performs no commandment, perhaps he too would say he should not descend. Alternatively, Rabbi Yehoshua said there that passive omission is preferable only because he does not commit a prohibition; but here, where he does commit a prohibition, perhaps he too would say he should descend.

Without entering the details of the discussion, the dispute is what to do in a situation in which there are two contradictory norms, both of them biblical. According to Rabbi Yehoshua, passive omission is preferable, and according to Rabbi Eliezer, positive action is preferable. The flow of the Talmudic discussion indicates that generally the solution is that passive omission is preferable, except that according to Rabbi Eliezer there are special reasons here to depart from that (because he violates bal tigra, and that is like a transgression by positive action). In any event, Maimonides rules like Rabbi Yehoshua, who gives one application, meaning that here too passive omission is preferable. From this one may learn that in a situation in which there are two colliding norms and there is no difference between the sides, the ruling is that passive omission is preferable.

If so, with regard to the abandoned infant as well, it seems that the ruling should be that he should neither study Torah nor keep the Sabbath.[16] Some would call such a ruling a stringency, but as we have seen, that is a mistake. This ruling too has a halakhic cost (on the possibility that he is Jewish), and yet it is the halakhic solution.

Why is this indeed the solution? In a certain sense, even negative non-action is a lower cost than negative action. If so, the solution that passive omission is preferable is simply a solution of minimal cost. This is not proceeding stringently by definition, but rather a different method of deciding in favor of the step that has the minimal cost.

Minimal-Cost Decisions: Passive Omission, Stringency, and 'Whoever Changes Course Is at a Disadvantage'

The question of minimal cost is tied very deeply to the question of 'leniency.' The reason is that in many cases decisors decide to go stringently because of considerations of minimal cost, and therefore they choose the ruling that passive omission is preferable. In light of what we have said here, these rulings should be reexamined. In order to sharpen the matter, I will briefly consider two examples that I discussed in greater detail elsewhere.

• The separation of Siamese twins.[17] There are cases in which two babies are born joined to one another in various ways, and they share an internal organ (such as a heart). In many cases the medical assessment is that if they are not separated they are likely to die within a short time. When the organ can be attributed to one of them, the ruling of most decisors is to perform separation surgery and save the owner of the organ. But in symmetrical cases, when the organ cannot be clearly attributed to one of them, all the decisors agree that the separation surgery should not be performed, and in my view the conception in the background of this ruling is the principle that passive omission is preferable.

In my article I pointed out that when we examine the cost of the two possibilities, we must take into account not only the question whether I violated the prohibition of murder, but also the result—namely, whether I saved life. The decisors assume that the choice not to perform separation surgery is the ruling of minimal cost, because such a choice certainly saves us from a prohibition of murder. But in my humble opinion, precisely the opposite ruling is the ruling of minimal cost, because judged by the outcome we lose only one life and not two.

• Organ donation.[18] In another article I discussed the obligation to donate organs in order to save another, even before the formal moment of death. There too the feeling is that the prohibition on donating organs before the moment of death stems from the concern of destroying oneself. There too I argued that we must see the cost on the other side as well—the failure to save life. Therefore, precisely the ruling to permit organ donation is the ruling of minimal cost in this case.

The meaning of this is that a ruling of passive omission does not always mean being passive. Its deeper meaning is a ruling that chooses the side with the lowest halakhic/moral cost. Some readers of those two articles responded as though they contained a special leniency, but as we have seen this is actually a different sort of stringent ruling. It is like the story about Rabbi Chaim of Brisk, before whom there came a woman whose son had been taken into the Russian army and she feared for his life, both spiritual and physical. Rabbi Chaim instructed her to travel on the Sabbath and try to save him from military service. When he was asked why he was lenient in the laws of the Sabbath, he replied that he was stringent in the laws of saving life.

Once again we see that the categories of leniency and stringency refer to norms and not to situations. Rabbi Chaim was stringent with respect to the norm of saving life, and lenient with respect to the norm of the Sabbath. Leniency and stringency are characteristics of rulings with respect to norms. With respect to the operative decision of what to do in practice in the given situation, it is not possible at all to define states of leniency or stringency. This too was a ruling of minimal cost.

To sum up, rules of decision of the 'minimal cost' type refer to practical situations, whereas rules of deciding leniently or stringently refer to norms. The two types of reference and decision complement one another, since each relates to one of the two planes defined above.

This picture sheds additional light on innovative halakhic rulings that appear to many as lenient rulings. Sometimes what we have here is not leniency but minimal cost. The conception that there is leniency here feeds on a partial conception of reality and of Jewish law. Once one takes all the considerations into account, this is the ruling with the minimal halakhic/moral cost, and in a certain sense it can even be seen as a stringent ruling.

Back to the Question of Changes

I began with the connection between the question of leniency and stringency and the question of changes in Jewish law. If we now return from the question of leniency to the question of changes, we can see there the same picture. In place of the rule that 'passive omission is preferable,' there operates there its cousin, the rule that 'whoever changes course is at a disadvantage.'[19] This is the basis for the tendency to oppose every change and to place the burden of proof on whoever demands change. On the other hand, as we saw with respect to the rule that passive omission is preferable, the analysis here is parallel. This rule applies only when change and non-change have the same cost. But in cases in which there is a heavy cost to not changing, then whoever does not change is the one at a disadvantage. Questions of Jewish law and renewed reality, such as the status of women, in which Rabbi Sperber has dealt in several contexts, raise precisely these dilemmas. Very often the innovative rulings are classified as 'leniency,' and the changer is seen as the one who is at a disadvantage. But sometimes this attitude stems from ignoring the costs attached to the ruling that appears 'stringent'—costs that actually turn it into the lenient position. Halakhic stagnation too has heavy costs, and it is only an illusion to think that stagnation is a 'safe' solution, that is, the solution of minimal cost. One may say that stagnation has an aspect of leniency, and not only of stringency.

In the halakhic tradition it was accepted that when one sees a law becoming lax in the public, the solution is to erect a fence, that is, to be more stringent. Since the stringency is not really obligatory, but rather a tactical policy, it is important to examine its effectiveness on the tactical level (does it work or not?). It turns out that in our time, in many cases, this approach does not work. The main reason is public accessibility to halakhic information, so that anyone who wishes can see that the stringency is not anchored in halakhic sources. When people see that the halakhic directives they receive are not grounded in the sources, or at least are not necessary, they lose trust in the giver of those directives, and may thereby come to transgress in matters that are entirely forbidden. In our terms, one may describe this as follows: not all of the legitimate options were presented to them, and in light of our definitions above this means that the decisor ruled stringently.

The implication is that our attitude toward changes in Jewish law itself needs to change in light of reality. This is a second-order change, since it speaks of a change in our attitude toward changes in Jewish law. The question of legitimate change was discussed in my aforementioned article, and I will not enter it here.

Summary

The picture that emerges from our discussion is that when we come to discuss the question of leniency and stringency, it is important to distinguish between two planes of discussion: the question of setting out the legitimate options before us, and the question of choosing among them.

In the first chapter we saw that the concept of 'leniency' is mistakenly understood as a ruling that is more comfortable for the questioner, that is, as referring to the second plane. There we argued that the more precise definition is that a lenient ruling refers to the first plane. Its meaning is the opening of more legitimate options before the questioner (or the determination that no norm applies in the case under discussion). We also saw that the questions of the second plane (which of the options to choose) are not entrusted to the decisor but to the questioner. A lenient ruling by the decisor pertains only to the first plane, that is, to the presentation of more options as legitimate.

In the course of the discussion we noted several additional implications of this distinction: in the first chapter we saw that there are leniencies that look like stringencies, but they really are leniencies. We also saw in the second chapter that there are views according to which, when one comes before a decisor, he must present all the opinions. From these we concluded that at least in pressing circumstances the decisor must present more options as legitimate (for he withdraws from the seat of decision and presents the full range of existing positions). Presenting all the existing opinions (including the stringent ones) as legitimate options is itself the lenient ruling. We also saw that from the picture presented here it follows that one who is stringent in a rabbinic doubt is not an ignoramus. In the third chapter we saw that from this it follows that in certain situations the symmetry between leniency and stringency breaks down (the state of leniency is clear, but the state of stringency is not univocal).

At the end of our discussion we addressed the relationship between going stringently or leniently and parallel decision-guidelines, such as 'whoever changes course is at a disadvantage' and 'passive omission is preferable.' We saw that at bottom these are decisions of minimal cost, except that they usually relate to the second plane of discussion (the practical choice), whereas decisions of stringency (which is also a minimal-cost decision) or leniency relate to the first, normative plane (the denial of legitimacy to some of the options).

From this we returned to note the question of changes in Jewish law in light of changing reality, and the identification of such changes with approaches that rule leniently. The picture that emerges from all of the above is that it is not correct instinctively to fear change, nor is it correct to identify non-change (passive omission is preferable; whoever changes course is at a disadvantage) with a decision of minimal cost, or with stringency. Sometimes the minimal cost is precisely to act, to change, and to be lenient, thereby thawing the halakhic ossification that troubles many people today, and not without justice. It seems to me that these remarks accord to no small degree with the approach of Rabbi Professor Sperber, insofar as I have had occasion to know it, and perhaps in these remarks I have succeeded in clarifying a little of the fundamental conception that lies behind that approach.

[1] M. Abraham, 'Is There an "Enlightened" Idolatry?', Akdamot 19 (Tammuz 2007), 65–86.

[2] See Rabbi A. Danzig, Nishmat Adam, 1848, rule 5 sec. 1, on the view of Tosafot, Rosh Hashanah 33a. Also Rabbi Y. Joshua, Pnei Yehoshua, Or HaChokhmah, Jerusalem (1998), Berakhot 12a. See also Rabbi Yehoshua Wolk Katz, Derishah, Machon Yerushalayim (1993), Orach Chayim sec. 29, letter 1. However, there are also those who hold that this is a rabbinic prohibition and nonetheless forbid it, on the grounds that it is a more severe rabbinic prohibition. See Rabbi Yisrael Meir HaKohen, Sha'ar HaTziyun (within Mishnah Berurah), Wagshal, Jerusalem (1996), sec. 215 subsec. 21. Also the Netziv, Ha'amek She'elah, Vilna (1861), sec. 53 on Yitro, regarding the author of the She'iltot.

[3] This also clarifies a puzzling formulation of the medieval authorities (Rishonim) in the passage concerning the blessing of thanksgiving (HaGomel) in Berakhot 54b. The Talmud there hesitates whether the blessing must be recited before ten, two of whom are scholars, or before twelve, two of whom are scholars. In Tosafot, s.v. Ve'eima: "And we act stringently, even if there are not two scholars." And Tosafot ha-Rosh there writes: "And since the matter was not resolved for us, we go stringently and require both."

And the later authorities there wondered how the stringency is defined here. For example, Rabbi Y. Landau, Tzelach, Jerusalem (1995), there, writes:

Tosafot, s.v. Ve'eima: 'And we act stringently, even if there are not two scholars,' etc. I do not know how to explain Tosafot's intention, for what stringency is this? To bless without two scholars? After all, in every doubt concerning blessings we go leniently and do not bless because of the doubt of "You shall not take the Name in vain"… And it seems that this is the intention of the Rosh and the Tur, that we go stringently and require both; see there. But at first glance it is difficult: what stringency is this for him, after all he is not blessing? Even though the law is correct that in doubtful cases of blessings one does not bless, nevertheless it is called a leniency, as all the decisors say: in doubtful blessings we are lenient.

See there, where he explained that one must distinguish between a discussion of the obligation to bless and a discussion of the obligation to seek out a group of twelve people, and he left the matter unresolved. But according to our approach, Tosafot's intention is to be stringent in the laws of blessings (and therefore he obligates blessing even with ten), whereas the Rosh is stringent in the laws of "You shall not take the Name in vain" (and therefore forbids blessing when there are not twelve). Each such stringency offers fewer options with respect to the norm under discussion (either "You shall not take the Name in vain" or the obligation to bless), and therefore it is defined as a stringency.

[4] See Berakhot 9a, Shabbat 45a, and Gittin 19a. Also with respect to Rabbi Elazar in Eruvin 46a, and with respect to Rabbi Eliezer in Niddah 6b and 9b.

[5] The Rema permitted several things because of human dignity. For example, to recite Kiddush on the Sabbath (responsa, sec. 125), and for a kidney patient whose urine drips involuntarily to pray with the congregation in the synagogue and recite Shema and wear tefillin (responsa, sec. 98), and more. So too we find that he permitted sleeping outside the sukkah because of danger (Orach Chayim, sec. 639:2), extinguishing a fire on the Sabbath because of danger (Orach Chayim, sec. 334:26), wearing shoes on Tisha B'Av for one who must go among Gentiles (Darkhei Moshe, Orach Chayim, sec. 554 subsec. 6), lighting the Hanukkah candle inside the house because of danger (Orach Chayim, sec. 671:7–8), commerce with Gentiles on the day of their festival (Yoreh De'ah, sec. 148:12), drinking their ordinary wine (responsa, sec. 124), reciting Shema in the presence of women's hair that customarily protrudes from outside their braids (Orach Chayim, sec. 75:2), and also two well-known leniencies in the laws of terefot (Yoreh De'ah, secs. 37 and 39), with which Rabbi Yosef Karo disagrees, and from which emerges the difference between Ashkenazim and Sephardim regarding 'glatt' meat. See all these in the book by Rabbi Dr. Asher Ziv, Rabbenu Moshe Isserles, expanded edition, Yeshiva University Press, New York (1972).

[6] It is difficult to assume that 'forbidden' here should be interpreted as 'proper to be stringent,' and that in essence Rabbi Yehuda really agrees with Rabbi Shimon. As noted, the Talmud itself says that he holds like Rabbi Yehuda.

[7] This does not mean that in their view one may not be lenient even in pressing circumstances. It may be that they regard the principle of leniency in pressing circumstances as a general principle, not one unique to this case; that is, that in every rabbinic law (at least where there is a dissenting opinion) one may be lenient in pressing circumstances.

[8] In Kesef Mishneh there he forces the wording, but even according to his approach this is Rashbi's own position. That is, Rashbi himself holds that one has not fulfilled the obligation unless there was a pressing circumstance. So for our purposes this is still a good example. See also 1:12 and Kesef Mishneh there.

[9] And where there are two opinions, this is a legal doubt (or a doubt among authorities), and there, even in cases of doubt, it is not clear that one may always be lenient. Moreover, one must follow the presumption and the rest of the rules governing doubt.

[10] The assumption is that these are situations of doubt, since he does not write that one who does not do this is an ignoramus. That is, he does not rule unequivocally that this is the law, but only says that one may behave this way in pressing circumstances.

[11] It is important to note: the difference between a rabbinic doubt and a Torah doubt is not the question of what the recommended ruling is—whether to be lenient or stringent. The main difference is that in Torah matters there is one recommended ruling (=one is obligated to be stringent), whereas in rabbinic matters there is not (=one may be lenient, or one is not obligated to be stringent). In other words, the main difference is not expressed by the words 'to be lenient' and 'to be stringent,' but by the words 'obligatory' and 'permitted.'

The unavoidable conclusion is that in a rabbinic doubt one may go leniently, but one is not obligated to do so. As we concluded above, going leniently means only positing a greater number of halakhic options, and it does not pertain to the choice of one of them. Another implication that follows from this is that one who is stringent in a rabbinic doubt is not an ignoramus, and is not considered like one who is exempt from a matter and nevertheless performs it. He is permitted to be lenient, but he is not obligated to do so (there is no obligation to be stringent, but certainly one may also be stringent).

[12] I discussed this point at length in my article, 'Autonomy and Authority in Halakhic Decision-Making,' Meisharim 1 (2002), 79–124.

[13] The author of Kovetz Shiurim there explains in light of this principle also the rule that where majority and proximity conflict, we follow the majority (see Bava Batra 24a). He proves that following the majority is a doubt-resolving rule, that is, it is a rule that removes the doubt. And now that we are no longer in a state of doubt, the rule to follow proximity cannot apply, because following proximity is a rule of conduct in cases of doubt (learned from the passage of the heifer with the broken neck, where we do not know from which city the murderer came; see the Bava Batra passage there).

[14] See an interesting example and proof for this conception from the passage of 'the city of gold' in D. Weil's article, 'The Completion Logic of the Sages and Greek Logic,' Higgayon 1 (1989), 102–124.

I note here that such a picture of Jewish law is connected to what in philosophy is called the 'sorites paradox.' See briefly in my article, 'The Expertise of a Halakhic Decisor as an Evaluator of Reality,' Tzohar 7 (Summer 2001), 21–33.

[15] Let us sharpen this further. According to Maimonides, for whom the obligation to be stringent in cases of doubt is only rabbinic, the biblical rule is that a Torah-level doubt is treated leniently. According to his approach, in the case of an infant in a mixed environment, biblically both possibilities are legitimate, and the 'infant' (when he grows up) can choose between them himself.

[16] One may disagree with this and say that the prohibitions are not of equal force (the obligation of a Jew to keep the Sabbath is stronger than the prohibition on a Gentile's doing so). I use this case only as an example, and therefore I will not enter a more detailed discussion.

[17] See a fuller discussion in my article, 'The Separation of Siamese Twins,' Tehumin 27 (2007), 144–156.

[18] See a fuller discussion in my article, 'Organ Donation,' Tehumin 29 (2009), 329–339.

[19] This is, of course, a borrowed expression. In its original source (see Mishnah Bava Metzia 76a and parallels) it expresses a monetary rule, not a meta-halakhic approach. I use it here as an expression for a common meta-halakhic conception, and this formulation is the common way of describing it.