The Role of Context in Halakhic Ruling: A Look at Academic Explanation and Halakhic Argument (Column 166)

With God's help

Not infrequently I have received questions dealing with the role of context in halakhic ruling. On the one hand, it is clear that a halakhic decisor is supposed to be rooted in his surroundings and to respond to what happens in them. Ruling must take circumstances into account and not be carried out in a laboratory, that is, in a closed room and in a purely logical manner. These are living questions, not merely theoretical ones. On the other hand, to the best of my understanding, in most cases it is not correct for context to serve as a direct and conscious halakhic consideration for the decisor. I touched a bit on this tension in Column 139 about Rabbi Elishiv Knohl, of blessed memory. In this column I will try to shed light, from a different and more principled angle, on the tension between these two poles.

Heating Mikveh Water

A few months ago I received a comment on this issue based on the words of Arukh HaShulchan (=AHS), Yoreh De'ah sec. 201, where he discusses the question whether it is permissible to heat mikveh water:

Our master the Beit Yosef wrote… There are those who forbid placing a kettle full of hot water into the mikveh in order to warm it, and likewise filling a mikveh with hot water and connecting it to a river by a tube the width of a wineskin's mouth. End quote. And our master the Rema wrote that there are those who are lenient and permit adding hot water to the mikveh in order to warm it; nevertheless one should be stringent unless it is in a place where the custom is to be lenient, in which case they should not be protested. But with the hot springs of Tiberias it is permitted according to all opinions. End quote.

And our master the Beit Yosef ruled stringently, for certainly it is proper to be stringent; while our master the Rema ruled leniently, because our master the Beit Yosef lived all his life in warm countries, where one could be stringent, unlike our master the Rema, who lived all his life in Krakow, where in winter it is very cold, and he was compelled to be lenient in this matter. Yet even so he wrote that one should be stringent unless it is in a place where the custom is to be lenient, for in his day the women were healthy and with difficulty perhaps could endure it.

But in all our countries, for several generations now, they have poured hot water into the mikveh or heated it by means of a machine called a steam boiler, and in our country it is simply impossible in winter to immerse in cold water, and even in summer as well, since our mikvaot are from springs and the cold is very great. Were we to be stringent in this matter, procreation among Israel would already have ceased, or the women would certainly come into danger, and there would be many stumbling blocks, as is obvious. Therefore this has long been the custom, and no one opens his mouth or chirps against it; heaven forbid to cast doubt on this, and one who does so will be called to account. But we have never heard of anyone casting doubt on it.

And I am not worthy to decide conclusively; nevertheless, since this is the accepted practice, I will explain what appears to me, namely, that there is no proof whatsoever for prohibition from the passages in Berakhot and Ta'anit, and this is to defend the practice of the Jewish people…

The claim was that the author of AHS proceeded here in the manner of academic researchers and made a halakhic ruling dependent on the context in which the decisor operates. According to him, the Beit Yosef, who lived in the warm Land of Israel, was stringent and did not permit heating mikveh water; but the Rema, who lived and worked in cold Europe, permitted it. The halakhic decision was thus not made on the basis of legal considerations of what is permitted and forbidden, but on the basis of social and circumstantial considerations and influences.

This especially requires clarification, since the decisors he discusses did not mention this consideration in their own words. This is a contextual interpretation that he offers for their words, in the manner of the academic scholars—heaven forfend. In yeshivot, of course, such an explanation of a decisor's position, whether one of the medieval or later authorities, would never be proposed. There they would explain it in terms of different halakhic methods and reasonings (as AHS himself does in the concluding paragraph, part of which was cited here), and would clarify the theoretical and conceptual assumptions that underlie these rulings. Context, of course, is not to be mentioned there.

An Example: The Laws of Sanctifying God's Name

A clear example of this can be found in the well-known dispute among the medieval authorities (Rishonim) regarding the laws of sanctifying God's name.[1] There are several disputes between the Spanish authorities (Maimonides) and the French authorities (the Tosafot masters) concerning the laws of sanctifying God's name and the obligation of self-sacrifice, and it is patently evident that they reflect two opposite principled approaches on the conceptual plane. As a rule, the French authorities are very stringent and demand total self-sacrifice, whereas the Spanish authorities are more relaxed and lenient. Our academic cousins tend to explain this on the basis of the historical background: the French authorities lived and worked under the terror of the Crusades and had to be stringent in their demands of community members in order to spur them to confront the threats and to prevent surrender and collapse. The Spanish authorities functioned in a more relaxed environment, and their rulings were correspondingly more lenient. Academic explanations, by their nature, tend toward an analytic approach—that is, they separate the views and place each of them on a different contextual platform, dependent on different circumstances.

If one takes this form of explanation to an extreme,[2] the conclusion is that each sage's halakhic position is a product of his native landscape. It is determined on the basis of the circumstances in which he acts. Hence, had the French authorities operated in Spain, they would have ruled like Maimonides, and had the Spanish authorities lived in France, they would have ruled like Tosafot. According to this conception, what determines the halakhic decision is not the sage but the circumstances in which he acted. He is merely a vehicle through which those circumstances find expression, and the ruling is produced through him (this is the essence of the structuralist conception in hermeneutics)[3]. This approach holds that there is no real dispute here; each sage simply happened to find himself in different circumstances, and so a different conception took shape in him. Disputes are generated through the Zeitgeist (=the spirit of the age) and under the influence of circumstances, and they do not reflect a genuine difference in the positions of the various decisors.

It is now tempting to take this approach one step further. It would follow from this that when I today deliberate about a question relating to sanctifying God's name, all I need to do is examine whether the circumstances in which I operate resemble those that prevailed in Crusader France (the environment of Tosafot) or in Maimonides' Spain, and thus arrive at the halakhic decision. There is no room here to decide which of them was right, since there is no essential or principled dispute between them. This is halakhic determinism, which sees dispute as a reflection of circumstances rather than as an expression of a sage's unique view, one that truly deserves a place on the map of opinions. In fact, according to this approach there is no map of opinions at all. There is only a geographic map: at every point in space and time there is one binding ruling.

The Traditional Response

This is indeed an extreme description, but these are conclusions that naturally emerge from the contextual approach. It is more plausible and more correct to say that circumstances influence the decision rather than dictate it unambiguously. The decisor's own judgment, even when he acts within those circumstances, is also a component of his halakhic ruling. Even so, when a contextual explanation is proposed for a halakhic view, it implicitly assumes such a conception.

It is no wonder that the traditional yeshiva world is angered by the academic approach. There the assumption is that we are dealing with a substantive dispute in Jewish law that reflects different conceptions. The ruling should be reached by examining the views in light of the sources and the reasoning, and by deciding who is right. The decision is not supposed to depend on the question of where the questioner lives.

From here develop statements as though all our sages were heavenly seraphs who were unaffected by their environment and formed positions only on the basis of their own purified and distilled Torah judgment. On what, then, is their dispute based? Apparently on different ideological conceptions, each of which has its place. The halakhic ruling is supposed to be reached by examining the views, the conceptions, and the reasonings on their own merits, and the practical decision as to which of them to follow should be made by comparing them to one another, without regard to circumstances.

But these conceptions too are not altogether convincing. Clearly the sages of all generations were human beings, and like you and me they were influenced by their surroundings. The differences between approaches are certainly affected as well by the circumstances and formative milieu of the sage and decisor. In many cases these influences can be seen fairly easily. Even if academic research is sometimes hasty and superficial, it is not correct to say that this mode of thought is categorically mistaken. When research is done properly, its conclusions can be accepted. Thus, in the example of the dispute between Tosafot and Maimonides regarding the laws of sanctifying God's name, the consistency and the connection to the circumstances indicate that this dispute really is a product of the circumstances in which it arose. Again, it is not right to conclude that this is wholly deterministic—that is, that had Maimonides lived in France he would necessarily have ruled like Tosafot, and vice versa. But it is certainly correct to say that circumstances influence ruling.

Another Look at Context: Between Ruling and Research[4]

We have seen that it is hard to dismiss out of hand the claim that context influences the decisor, and that disputes are affected by differences in circumstances. But the conclusion we drew from this—that therefore there is no substantive dispute between the views—does not necessarily follow. It may be that circumstances caused the sages of the generations to arrive at their different halakhic positions. But that process has now brought those positions to the table of halakhic deliberation, and each of them has genuine standing even apart from the circumstances in which it arose. Once history has extracted from Tosafot and Maimonides different positions regarding the laws of sanctifying God's name, we can see that each of those positions has its own justification and internal logic, and each can be anchored in the Talmudic sources.

Moreover, Maimonides arrived at his position through analysis of the relevant passages and through his reasonings, and so did Tosafot. In their conscious minds, probably what predominated were reasons and sources, not context. But the context is what caused—or was among the causes of—those to be their reasonings. The scientific-historical-circumstantial description of how the dispute came into being may very well be correct, but it describes only the mode of its formation. The meaning of the views that emerged through that process does not necessarily depend on the way they were formed. Once they came into being, they stand on their own and should be discussed against one another. Even the practical ruling between them should be made on their own merits, not by comparing my context to the circumstances of medieval France or Spain. But it is important to understand that this does not necessarily require rejecting the academic-historical thesis about how they came into being. There is no need to reach the bizarre conclusion that the medieval authorities were angels untouched by their surroundings. The more accurate claim is that they were indeed influenced, but those influences are irrelevant in halakhic discussion. In that discussion, only the reasonings and the sources stand for decision. Making the ruling dependent on circumstances is true—partially. Circumstances influence it, but do not determine it—but that dependence is not relevant to the halakhic discussion.

It follows that when I face a decision about the laws of sanctifying God's name, I must take into account the reasonings from all sides and decide among them on the basis of my sources and arguments. True, years later researchers will come and explain my ruling as well, showing why it too stemmed from—more accurately, was influenced by—the circumstances in which I acted, just as they did with Maimonides and Tosafot. But that is a perfectly legitimate researcher's perspective. As a decisor, I am not supposed to relate to it at all. I issue rulings as though Maimonides and the Tosafot masters and Rav Ashi and Rabbi Akiva and Moses our teacher were thinking together with me around a round table, and all of us were debating matters of law until we reached a decision. The circumstances in which everyone sitting around that virtual table acted are the concern of researchers alone, not of people of Jewish law.

The conclusion is that both the research-academic perspective and the traditional perspective have their place, and of this dispute too one may say these and those are both the words of the living God ("these and those are both the words of the living God"), and usually one should add: "and the ruling follows the traditional perspective." That is, halakhic ruling should draw on the traditional perspective and not on the academic one—not because the latter is untrue, but because it is not the plane that determines halakhic ruling. I should note that this picture is also related to my distinction between first-order and second-order ruling, but I will not enter into that here.

The Context of Discovery and Justification

The distinction between these planes is completely parallel to the well-known distinction in philosophy of science between the context of discovery and the context of justification. A scientist may arrive at a theory by mystical means or any other route, and that really makes no difference. Perhaps what brought him to his ideas were the circumstances in which he worked, or perhaps his late grandmother appeared to him in a dream and told him about them. Historians of science do indeed tend to analyze his ideas in that way (through the Zeitgeist, the spirit of the age). This is the context of discovery (how the theory was discovered). But on the scientific plane, none of this matters. Here the ideas stand to be tested on their own, by their internal logic and their fit with the empirical findings. This is the context of justification, and it alone is the concern of science.

And corresponding to this distinction, in the halakhic context too we must ignore the circumstances in which the halakhic position arose (the context of discovery), and focus on what it itself says and on the question whether it accords with the sources and with reason (the context of justification). The first plane is the concern of academic research into Jewish law, which deals with context; but the halakhic discussion itself must focus on the second plane, and only on it.

On Leniency and Stringency in Ruling

There is, of course, room to say that if, after the clarification, two views or two possibilities remain before the decisor and he sees no substantive reason to prefer one over the other (whether on grounds of logic or in light of the sources), then when he comes to decide how he himself or the questioner should act, he chooses one of them on the basis of other considerations. There are, of course, the laws of doubt; but it is accepted in Jewish law that in such a situation circumstances can also have an effect. Thus, for example, if this is a difficult situation and a case of great exigency, one may be lenient and follow the lenient view. So in such cases the circumstances also affect the decision. They do not affect the interpretation of the sources or the examination of the views on their own merits, but if after that examination on their own merits several possibilities remain without a decision among them, then there is room to decide in light of the circumstances. That is something a decisor certainly can do, and in fact does not infrequently.

Such a decision, of course, does not require a contextual explanation of the views of the medieval authorities under discussion. If I rule leniently in the laws of saving life because the circumstances I am dealing with require it (in my view), I will do so without resorting to a contextual interpretation of Tosafot or Maimonides. The contextual considerations will be mine, not part of my interpretation of their views. As far as I am concerned, there are two legitimate possible courses of action (like Tosafot or like Maimonides), and for me as a decisor they derive solely from halakhic conceptions (sources and reasonings). Context is the business of the academic researcher. But the practical halakhic decision between the various possibilities may take into account the context in which I myself live.

Back to 'AHS'

If this was indeed what the author of AHS meant above, there is nothing new in it. If he thought that the views of the Rema and the Beit Yosef are both halakhically possible, and only decided between them because of the circumstances prevailing where he himself lived, that would be an entirely legitimate move. And indeed this is what he does in this paragraph:

But in all our countries, for several generations now, they have poured hot water into the mikveh or heated it by means of a machine called a steam boiler, and in our country it is simply impossible in winter to immerse in cold water, and even in summer as well, since our mikvaot are from springs and the cold is very great. Were we to be stringent in this matter, procreation among Israel would already have ceased, or the women would certainly come into danger, and there would be many stumbling blocks, as is obvious. Therefore this has long been the custom, and no one opens his mouth or chirps against it; heaven forbid to cast doubt on this, and one who does so will be called to account. But we have never heard of anyone casting doubt on it.

But in the previous paragraph his move was not of that kind. There he reports that the Beit Yosef expresses a certain halakhic position (a stringent one) and grounds it in certain halakhic reasons and sources, and likewise the Rema. Neither of them wrote that there are views this way and that way, and that he rules leniently or stringently according to the circumstances in which he operates. Had they written that, it would not have been especially novel, as noted. But they wrote a pure halakhic ruling, each on the basis of his own reasons (sources and reasonings). The author of AHS is the one who comes and gives their halakhic positions a contextual explanation of his own. That is, he claims that they presented a halakhic ruling based on sources, but in fact did not do so because that is what seemed halakhically correct to them, but because of the influence of context (consciously or unconsciously). This is precisely the way of academic research, and it ought not to be the way of a halakhic decisor.

But one should note that AHS himself goes on, in the last paragraph I cited, to prove that there is no prohibition whatsoever from the standpoint of pure Jewish law against heating mikveh water. In his view this is merely a stringency. In such a case there is indeed room to make the stringency dependent on circumstances. If this is only a stringency, it is certainly plausible to say that one who adopts it does so because of the circumstances in which he operates. Under other circumstances it may appear to be an excessive and unwarranted stringency. In such a case, even if the decisor himself (the Beit Yosef or the Rema) does not note this in his words, I can explain that from his perspective this was a non-obligatory stringency, because under such circumstances it is indeed not an excessive stringency. Moreover, when some decisor instructs people to be stringent in accordance with one view not because he rules like it, but merely as a stringency, he usually does so without explicitly making the decision dependent on circumstances. Those are the circumstances in which he lives, and so it is self-evident to him whether it is or is not appropriate to be stringent. In such a situation, a later decisor can certainly form an impression of what the earlier decisor's circumstances were and examine to what extent the circumstances in which he himself lives (AHS was in Europe like the Rema) allow leniency or not. So when is this possible, and when not?

Two Stages in Halakhic Decision-Making[5]

The conclusion is that halakhic ruling is carried out in two stages: A. clarifying the law in the given situation. B. assuming that the clarification in stage A shows that several modes of conduct are possible, deciding in favor of one of them. Circumstances are not supposed to affect stage A. Here the clarification is done on the basis of reasonings and sources. The circumstances are only the data that must be taken into account in order to decide what the law is under those circumstances (for every halakhic ruling deals with some concrete real-world situation). But at the second stage there is room for contextual and circumstantial considerations. The influence of context certainly exists at the first stage too, but the decisor is not supposed to be aware of it or take it into account. That is the business of academic researchers, not of people of Jewish law.

It is worthwhile to cite the Rema here. He is usually known as stringent in Jewish law, but he is no less well known for a number of leniencies that are brought in his books of rulings.[6] In the introduction to his book, Torat Chatat, he cites the words of Mahari Mintz (see his responsa, sec. 15):

And here I will excuse myself concerning one matter, lest the reader suspect me: sometimes I wrote leniently in a case of substantial loss, or for a poor person in an important matter, or for the honor of the Sabbath. The reason is that in those cases it seemed to me that according to the law there was a full permission, except that the later authorities of blessed memory were stringent in the matter. Therefore I wrote that in a place where one cannot manage otherwise, the matter should be left in accordance with the law. And so too we find among the earlier and later authorities that they acted in this way. And Mahari Mintz wrote in his responsum, sec. 15, that a poor man all the days of the week and a rich man on Sabbath eves are equivalent. Nevertheless, the custom is to tell them the reason in this way: for the former because of his poverty, and for the latter because of the honor of the Sabbath, so that they should not wonder why sometimes one forbids and sometimes one permits. End quote.

The Rema and Mahari Mintz explain that the leniencies in a time of exigency, in poverty, or on the eve of the Sabbath because of the honor of the Sabbath (even for a rich person), apply only where the act is permitted according to the primary law, except that the later authorities of blessed memory were stringent about it for some reason. It follows that there is no room for leniency in a case of need or pressure if the matter is forbidden according to the law. Only where the matter is permitted according to the primary law but people adopted a stringent practice (or if there are two possible paths and there is no clear decision between them at stage A), there is room to be lenient (at stage B) in a time of exigency or because of substantial need.[7]

There are similar situations in which there is a preferred path, and yet people are lenient in a time of exigency. Thus, for example, in permitting agunot or in a death sentence in a religious court (and the congregation shall save, "the congregation shall save"), they look for ways to be lenient, and at times even beyond the strict law. But in all these places this is an unusual halakhic procedure, and things are done explicitly (there is no need for contextual interpretation; the context is on the table). In these cases, Jewish law itself says to take context into account; that is, it itself unites the two planes (the halakhic and the contextual).

To conclude, I should note that in my article on birth control (and also in my above-mentioned article on leniency and stringency) I argued that these are not really two stages in halakhic ruling at all. Only the first of these two stages is the decisor's business. Once he has his conclusions, he should present the various options, along with their implications and the costs involved in them, to the questioner. The decision at the second stage (what to do in practice, which option to choose) should be made by the questioner himself.

A Polite Way of Referring to Error

There is another situation in which decisors use context as a halakhic explanation. In places where we encounter a puzzling and unreasonable approach on the part of some decisor (one that does not fit the sources or is very difficult to justify logically), contextual explanations are sometimes used there as well (for example, that this was an emergency enactment or anomalous conduct due to the circumstances). Usually this is done in order to explain why that view should not be taken into account (because it was said only for its own time and place). An extreme example is statements that a "mistaken student" surely wrote these words (for surely the decisor under discussion himself did not make so gross an error). It seems to me that in many cases this is simply a polite way of saying that this is a gross error. But the exception here proves the rule. In the ordinary case there is no room for contextual explanations in halakhic discussion. Again, this is not because they are untrue, but because they are not relevant to halakhic discussion.

[1] See on this also in my articles: Wisdom, Understanding, Knowledge: On the Dialectic of Torah and Science, Tzohar 35, Tevet 5769, p. 67; The Hermeneutics of Canonical Texts, Akdamot 9, 5760, p. 161; Is There "Enlightened" Idolatry? – On Attitudes toward Gentiles and Changes in Jewish Law, Akdamot 19, Sivan 5767, p. 65; Academic Research and the Prohibition on Touching, the Shabbat supplement, 5 Shevat, 5776; Scholar and Member of the Covenant, Akdamot 14.

[2] This is, of course, a somewhat simplistic generalization about the academic perspective. But I think I am not too far off in the general direction.

[3] See on this in my article on hermeneutics here.

[4] See my above-mentioned article on hermeneutics, although what is said there now seems somewhat too extreme for my taste. See also the unpublished continuation here, and more briefly as well in the thread here on the site.

[5] See my article on leniency and stringency, where I elaborated on the meaning of these matters.

[6] The Rema permitted several things on grounds of human dignity, for example betrothing a woman on the Sabbath (responsa, sec. 125), and allowing a kidney patient whose urine dribbles to pray with the congregation in the synagogue, recite the Shema, and put on tefillin (responsa, sec. 98), and more. We also find for him permissions to sleep outside the sukkah because of danger (Orach Chayim, sec. 639:2), to extinguish a fire on the Sabbath because of danger (Orach Chayim, sec. 334:26), to wear shoes on Tisha B'Av for one who goes among gentiles (Darkhei Moshe Orach Chayim, sec. 554, no. 6), to light the Hanukkah lamp inside the house because of danger (Orach Chayim, sec. 671:7-8), to do business with gentiles on their festival day (Yoreh De'ah, sec. 148:12), to drink ordinary gentile wine (responsa, sec. 124), to recite the Shema in the presence of the hair of women whose hair customarily protrudes beyond their braids (Orach Chayim, sec. 75:2), as well as two well-known leniencies in the laws of non-kosher defects (Yoreh De'ah, secs. 37 and 39), over which the Beit Yosef disagrees, and from which derives the difference between Ashkenazim and Sephardim regarding "glatt" meat. See all this in Rabbi Dr. Asher Ziv's book, Rabbenu Moshe Isserles, expanded edition, published by Yeshiva University, New York, 1978.

[7] In my above-mentioned article on leniency and stringency I elaborated on the meaning of these matters and explained these words of the Rema, and through them also several Talmudic sources that instruct leniency in a time of exigency (for example, Rabbi Shimon is worthy to be relied upon in a time of exigency — "Rabbi Shimon is worthy to be relied upon in a time of exigency").