Topics in Halakhic Thought – Lecture 24

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[Rabbi Michael Abraham] If somewhere he thinks it is proper to prohibit something, as far as I’m concerned that’s a clause that can be ignored. There’s no need to bring it in a responsum, not even to discuss it. Because what seems right to the Rashba doesn’t interest me. The Rashba is not the Holy One, blessed be He. If the Rashba says, “It seems to me that this is forbidden,” not “it seems to me that it is proper to prohibit it,” that’s something else. Because then the Rashba is claiming that some Torah-level or rabbinic prohibition applies to this situation, and according to him it really is forbidden. Fine—now we have to check whether he is right, whether others disagree with him, whether there is a distinction between our case and what the Rashba was talking about. That’s where a discussion begins. But take things like—many times you know these discussions where people say, yes, Rabbi Ovadia forbids it and this rabbi permits it and that rabbi says this and that rabbi is uncertain, and there are views of halakhic decisors this way and views that way, and nobody even states what the discussion is about. What prohibition are we talking about? What commandment are we talking about? What are we talking about? So that’s a flawed discussion. Because why should I care what all these important Jews say if there is nothing to discuss? That’s what happened with the orphan’s Kaddish. In the orphan’s Kaddish case, what happened was that they brought, in a very learned way, all kinds of sources that deal with it—this one like this and that one like that, this one forbids and that one permits, and in our community they practiced this way and in our community they didn’t—and every one of those sources, down to the last one, is completely irrelevant. And of no interest to anyone; they shouldn’t interest anyone. Because why should I care if the Havot Yair forbids it? If he brings me a Torah-level or rabbinic prohibition that applies here, great—then we have to check, discuss, and see: is he right or not? But the fact that the Havot Yair thinks it isn’t advisable—when he becomes the Sanhedrin or the Holy One, blessed be He, then we’ll talk. But he isn’t. He has no authority to invent prohibitions. All a halakhic decisor can do is take an existing prohibition from a valid source and discuss its parameters and its application to the case before him. He cannot invent prohibitions. And therefore the sources that you need to put on the page in the first step toward a responsum, toward writing a halakhic responsum, must be valid authoritative sources. Meaning: either a decision of the Sanhedrin, or something written in the Torah, or something written in the Talmud. That’s it, nothing besides that. Now, obviously what is written in the Talmud can be interpreted by Maimonides this way, by the Rashba that way, and Rabbi Akiva Eiger that way; that’s all fine, as long as they are interpreting the Talmud. In the final analysis, the claim is that this is what is written in the Talmud—not that this is what Maimonides says. What Maimonides says by itself doesn’t interest me. If Maimonides says that this is what is written in the Talmud, that interests me. That doesn’t mean I will necessarily accept it, but at least it is worth discussing, because here there is Talmud, and the Talmud has formal authority. So then we have to discuss whether the Rashba is right, whether Maimonides is right, who disagrees, who agrees, whether I agree. Fine, then you can begin discussing. Okay? Therefore this list that you put on the page cannot be a list of what various halakhic decisors say, unless they are claiming that this is their interpretation of the Torah, the Talmud, or the decisions of some ancient Sanhedrin. That’s it, only that. Other than that, nothing. Sorry,

[Speaker D] What about using general concepts like human dignity, the essence of the Sabbath, the hermeneutic principles by which the Torah is interpreted?

[Rabbi Michael Abraham] All those things—so what is human dignity? Those aren’t general concepts; human dignity is a law, human dignity. It’s a law that appears in the Talmud. You can tell me what your interpretation of human dignity is. Is Kaddish within the framework of…

[Speaker D] Does it enter into such a thing?

[Rabbi Michael Abraham] That’s a different discussion; that’s interpretation. I have no problem—if you tell me that human dignity is relevant here, then we open the discussion. Now we have to begin discussing whether human dignity is relevant here or not relevant here, but I understand that there is a clause here to discuss, because human dignity appears in the Talmud. But a clause to discuss cannot be a sentence from the Rashba. No—it just isn’t a clause to discuss. Unless the Rashba says that human dignity as written in the Talmud means doing such-and-such. Okay? Then that means there is an opinion of an important halakhic sage telling me that human dignity is an issue we need to discuss in this context, and of course I am very far from belittling that. That must be discussed. But if the Rashba says, “It seems to me proper to prohibit it,” fine—to me it seems proper to fly to the moon. So what? It seems proper to him to prohibit it; that doesn’t make something forbidden. For something to become forbidden, it has to be forbidden either by the Holy One, blessed be He, or by an authorized institution of sages—the Sanhedrin or the Talmud. That’s it. Yes. If medieval authorities (Rishonim) or later authorities (Acharonim) say that here it is proper to prohibit something, then it is completely permitted, without the slightest trace of doubt. Proper to prohibit? Let them establish a Sanhedrin and there will be law; then they can also prohibit it because it is proper to prohibit. But it is not forbidden. The Hazon Ish has this in two places—I quote him in the book—two places where he writes, he feels this difficulty. Because the way of halakhic decisors is often to say: ah, this seems to me rabbinically forbidden. There is no Torah-level prohibition here, so it is rabbinically forbidden. Now on its face that is absurd. Let’s say, for example, the category of trapping. Fine, you’re discussing some law of trapping, and you say that in Torah-level terms it doesn’t enter the category because it is not a species that is ordinarily trapped, so it’s not a Torah-level prohibition—but it seems to me that it is a rabbinic prohibition. What does it mean, “it seems to you that it is a rabbinic prohibition”? Was there a court that established a prohibition on this? An authorized court? A Sanhedrin that established this? If not, then there is no prohibition. The fact that it seems to you proper to prohibit it—excellent. Establish a Sanhedrin and prohibit it. As long as there is no Sanhedrin, why should I care what seems right to you? You can say, “It seems to me proper to refrain.” That’s good advice, so I will try to refrain. But you cannot say that it is forbidden. Because “forbidden” means forbidden only if an authorized court established it. Eating poultry with milk—until the court forbade it, it was permitted, even though the reason to prohibit it existed before as well, lest one come to eat meat with milk. But it was permitted. Why was it permitted? Because in order for something to be forbidden, a court has to sit and prohibit it; it is not enough that it makes sense to prohibit it. But only an authorized court can do that, one to which “you shall not deviate” applies—the Great Court—or the Talmud as we discussed. That’s it. Nothing else can constitute a clause for discussion. And this is so distorted in responsa and halakhic articles that I tear my hair out every time I see these things. They begin discussing some question and immediately it’s “the Mishnah Berurah said this” and “Arukh HaShulchan said that” and “the Rashba writes thus.” Tell me what you’re discussing. What prohibition is here? What commandment is here? Then we can start seeing what all the medieval and later authorities say about each such clause. You cannot start from medieval and later authorities who say that something is forbidden. So what if they say so? They said it, so they said it. This is simply the methodology of ignoramuses. These are Mishnah Berurah-style decisors. Now, in that same article, I think that was the first time I wrote this concept of first-order ruling and second-order ruling. Second-order ruling means ruling based on precedents. First-order ruling is ruling as I described it here. I do not forbid something because the Rashba forbade it. I am not interested in whether the Rashba forbade it or not. If there is a clause from the Talmud, from the Torah, from wherever, and the Rashba says that according to that clause this is forbidden, that is definitely worth discussing. And I also won’t necessarily accept it, because the Rashba is not the Sanhedrin; there is no obligation. But the Rashba is certainly an important halakhic expert, so he has substantive authority even if not formal authority. He cannot invent prohibitions; he can interpret existing prohibitions. That is the difference between a first-order decisor and a second-order decisor. But that is only one of the differences. The second difference is that even if you begin properly, even if you do it according to the methodology I suggested—you begin with the clauses of Torah-level prohibitions, rabbinic prohibitions, Torah-level commandments, rabbinic commandments, customs, you write all the clauses on the page, work on each one, check what the medieval authorities, the later authorities, the reasoning, everything says, analyze each clause, and at the end summarize everything and arrive at a bottom-line ruling—how do you rule? If you rule because that precedent said so, or because you take a majority vote among the halakhic decisors, then you are still a second-order decisor. You are a second-order decisor working with a correct methodology. First-order ruling does not mean only beginning with the Talmud and the Sanhedrin and the Torah, but also ending there. Meaning, not to follow the majority of halakhic decisors—what they say and what they do not say—but to follow what seems to you to actually be written there. Of course you use the halakhic decisors, the medieval authorities and the later authorities, because they help you, they illuminate different aspects for you, you take their views into account as important Torah scholars, all of that is fine. But in the end you rule this way because you understand that this is what the Talmud says, not because there is a majority of decisors who forbid it, but because you were persuaded that this is probably what the Talmud says. That is why you rule that way. So in short, in order to be a first-order decisor—that is, in order to be a decisor, because a second-order decisor is not a decisor—you need two things. First, you need to work with the correct methodology: not to begin immediately with “this one forbids and that one permits,” but to begin from the primary clauses, conduct a discussion on each such clause, and then summarize all the aspects and arrive at an integration of the whole, a final decision that weighs everything. That is the methodology. But beyond the methodology of how one works, the form of decision is also important here. Do you decide because the majority of halakhic decisors said so, or do you decide because you were convinced that this is right? In principle I am supposed to be convinced that this is what is written in the Talmud or this is what is written in the Torah, not that this is what the Rashba says or what most decisors say. Unless the majority of decisors persuaded me—because there are so many of them and they are so wise—that I became convinced that this is probably what the Talmud says. Fine, that is legitimate, although one need not do it that way, but it is legitimate, because in the end if you were convinced that this is what the Talmud says, then what you are ruling is according to an authoritative source, and that is fine. But my sense is that very often people rule because it says so in the Mishnah Berurah. And that is by definition a second-order decisor, not only because of the methodology, but also because of the mode of decision. Do you understand what I’m saying? And these two things are really necessary if a ruling is truly to be a halakhic ruling; otherwise you are just reciting. We spoke a little about—one more sentence—we spoke a little about autonomy in halakhic ruling versus reliance on precedents; this is definitely connected. Meaning, autonomy in halakhic ruling is what characterizes first-order ruling. You are really supposed to rule according to your own best understanding of what the Talmud, the Torah, or whatever says. You make use of all the medieval authorities, later authorities, and halakhic decisors, and of course you can consult; all that is fine. But in the end, after you have spoken with everyone, the decision itself is according to what you think is written in the authoritative source. That is what the decision should be. I do not do something because the Shulchan Arukh says so; I do something because the Shulchan Arukh persuaded me that this is what is written in the Talmud—if he persuaded me, and if not, then not.

[Speaker A] All right, let’s take a five-minute break and come back. “These are the records of the Tabernacle, the Tabernacle of Testimony.” Moses gives an accounting of all the silver and gold. Why does he do that? After all, the Torah testifies about him, “In all My house he is trusted.” Rather, this teaches us that one must be clean in the eyes of God and of Israel. “The Tabernacle of Testimony”—it is testimony to all the inhabitants of the world that the Holy One, blessed be He, forgave Israel for the sin of the golden calf. The moment the Divine Presence dwells in the Tabernacle, everyone knows that the Holy One, blessed be He, once again dwells among us. “Let them make Me a sanctuary, that I may dwell among them.” At the end of the portion and at the end of the book: “And the cloud covered the Tent of Meeting, and the glory of the Lord filled the Tabernacle.” May it be His will that we merit the indwelling of the Divine Presence in all the work of our hands. Be strong, be strong, and let us be strengthened. “These are the records of the Tabernacle, the Tabernacle of Testimony, which were recorded according to the command of Moses, the work of the Levites under the hand of Ithamar son of Aaron the priest. And Bezalel son of Uri son of Hur, of the tribe of Judah, made all that the Lord had commanded Moses. And with him was Oholiab son of Ahisamach, of the tribe of Dan, an engraver and designer and embroiderer in blue, purple, crimson, and fine linen. All the gold that was used for the work, in all the work of the sanctuary—the gold of the elevation offering was twenty-nine talents and seven hundred and thirty shekels by the sanctuary shekel. And the silver of those of the community who were counted was one hundred talents and one thousand seven hundred and seventy-five shekels by the sanctuary shekel. A beka per head, half a shekel by the sanctuary shekel, for everyone who passed over to those counted, from twenty years old and upward, for six hundred and three thousand five hundred and fifty. And the hundred talents of silver were for casting the sockets of the sanctuary and the sockets of the curtain—one hundred sockets for one hundred talents, one talent per socket. And from the thousand seven hundred and seventy-five he made hooks for the pillars and overlaid their tops and banded them. And the bronze of the elevation offering was seventy talents and two thousand four hundred shekels. And with it he made the sockets for the entrance of the Tent of Meeting, and the bronze altar and its bronze grating, and all the utensils of the altar. And the sockets of the courtyard all around, and the sockets of the gate of the courtyard, and all the pegs of the Tabernacle, and all the pegs of the courtyard all around. And from the blue, purple, and crimson they made service garments for ministering in the sanctuary, and they made the holy garments for Aaron, as the Lord had commanded Moses. And he made the ephod of gold, blue, purple, crimson, and twisted fine linen. And they hammered out the gold into thin sheets and cut it into threads to work into the blue and into the purple and into the crimson and into the fine linen, the work of a designer. They made shoulder-pieces for it, joined; at its two ends it was joined. And the decorated band of his ephod that was upon it was of one piece with it, of gold, blue, purple, crimson, and twisted fine linen, as the Lord had commanded Moses. And they made the onyx stones set in gold settings, engraved like the engravings of a seal with the names of the children of Israel. And he placed them on the shoulder-pieces of the ephod as memorial stones for the children of Israel, as the Lord had commanded Moses. And he made the breastplate, the work of a designer, like the work of the ephod, of gold, blue, purple, crimson, and twisted fine linen. It was square; they made the breastplate doubled, a span its length and a span its width, doubled. And they set in it four rows of stone: a row of ruby, topaz, and emerald was the first row. And the second row: turquoise, sapphire, and diamond. And the third row: jacinth, agate, and amethyst. And the fourth row: beryl, onyx, and jasper, set in gold settings in their mountings. And the stones were according to the names of the children of Israel, twelve according to their names, engraved like a seal, each man according to his name, for the twelve tribes. And they made on the breastplate braided chains, corded work of pure gold. And they made two gold settings and two gold rings, and they put the two rings on the two ends of the breastplate. And they put the two braided chains of gold on the two rings at the ends of the breastplate. And the two ends of the two braided chains they put on the two settings, and put them on the shoulder-pieces of the ephod at its front. And they made two gold rings and placed them on the two ends of the breastplate, on its edge that was on the inner side of the ephod. And they made two gold rings and put them on the two shoulder-pieces of the ephod below, at its front, close to its joining, above the decorated band of the ephod. And they bound the breastplate by its rings to the rings of the ephod with a blue cord, so that it would remain on the decorated band of the ephod, and the breastplate would not come loose from the ephod, as the Lord had commanded Moses. And he made the robe of the ephod, woven work, all of blue. And the opening of the robe was in its middle, like the opening of a coat of mail, with a binding around its opening, so that it should not tear. And they made on the hem of the robe pomegranates of blue, purple, and crimson, twisted. And they made bells of pure gold and put the bells among the pomegranates on the hem of the robe all around, among the pomegranates. A bell and a pomegranate, a bell and a pomegranate, around the hem of the robe for ministering, as the Lord had commanded Moses.” All right, we’re starting. Hello friends, cameras and all the procedure. Fine, Rafael, Shimon, are you with us? Yes. Gideon, is Shimon here, Gideon? Uriel? There—you are

[Rabbi Michael Abraham] with two connections. Fine. So let’s continue. At the basis of the whole picture I described here really lies the question of authority. And why? Because as I described when we spoke—because we had a chapter on the issue of authority, and there I said that there are two types of authority: formal authority and substantive authority. Formal authority is authority to obey someone because of who he is, not because he is right. And substantive authority is like the authority of an expert: I listen to him because he is probably right. And formal authority is given, as I said, either to the Sanhedrin or from below—or we spoke about this—to the Talmud. Substantive authority belongs to every expert. Down to our own day, whoever is an expert in Jewish law, one should take his opinion into account; that is, he is an expert like any expert in any field. Precisely because of this, only someone who has formal authority can innovate prohibitions. Someone who has substantive authority can interpret prohibitions, but not create them. In order to create them, one needs legislative authority. To interpret, you only need to be right; meaning, if you interpret an existing source, then if you are right—right, that is what is written in this source—and since that source is authoritative, then practically speaking the thing is forbidden. Therefore the difference between substantive authority and formal authority, which also distinguishes between the different sources—that is, the Sanhedrin and the Talmud versus post-Talmudic sources—really projects onto the whole picture I described here. And when I speak of first-order ruling, I am really saying two things: first, you need to begin from sources that have formal authority—the Torah, the Talmud, and Sanhedrins that interpret the Torah, expound and interpret the Torah. And in the end as well, you also need to rely in your decision only on such sources. Everything beyond that—the medieval authorities, later authorities, Geonim, everything after the Talmud—these people are Torah scholars, they have substantive authority, but substantive authority does not mean they can legislate, because they cannot. This is what I said before: if the Rashba says that something seems to him forbidden, that does not matter. If the Rashba says that it seems to him to be included in an existing Torah-level or rabbinic prohibition, that is something else, because here he is functioning as someone with substantive authority, as an expert. So if he says that this is what is written in this enactment or this verse, then that has weight. If that is what is written there, then it is forbidden. But if the Rashba himself prohibits it, then he prohibited it—but he cannot prohibit it. Okay? And therefore in that sense you also cannot rule something simply by relying on the Rashba, because the Rashba’s whole role is as an expert. And once he is an expert, then okay, check whether the expert here was right or not right. You can of course say, okay, I am not on his level; I trust the Rashba that he was probably right, and rule because the Rashba said so. In principle that is legitimate. But still, in the end, it is because of the trust you place in the Rashba. In the final analysis it is your ruling, not his. Because formal authority gives a person the ability to rule; with substantive authority he cannot rule. With substantive authority, all he can do is tell me what Jewish law says, and if I am persuaded, then I will decide to do it because that is what Jewish law says. The final decision is mine, not his. That is a very significant difference between formal authority and substantive authority. And that really brings me to the second part of this topic. I will begin the—meaning, I already spoke in the previous lesson, I spoke about or finished the previous topic of Jewish law and facts; now I spoke briefly about first-order ruling and second-order ruling—that was the first subchapter in this chapter dealing with the work of a halakhic decisor.

[Speaker D] Sorry, is the ruling style of the Mishnah Berurah second-order ruling in the Rabbi’s view?

[Rabbi Michael Abraham] Yes, yes, to a large extent. He does not begin the discussion with the passages; he brings halakhic decisors, summarizes them, and makes decisions about whom to follow. What he did in his own home, how he did the—how he learned before he wrote the Mishnah Berurah, that’s a different discussion. I assume that he did indeed learn it from the primary sources.

[Speaker D] Wait, when he says that something is forbidden, he says it not on the basis that—

[Rabbi Michael Abraham] that he—no, I said, there are two things that characterize first-order ruling: there is the methodology and there is the mode of decision. So in terms of methodology, in the Mishnah Berurah he does not begin from primary sources, not even in the Bi’ur Halakhah. In the Bi’ur Halakhah sometimes—and only sometimes. I don’t know; it could be that the inquiry he did at home before writing his conclusions was done fully. I want to believe that it was, but in the book it does not appear. The book is not a book of the kind of—even the Shulchan Arukh is not. The Shulchan Arukh gives bottom lines; it is not first-order ruling. But in the Beit Yosef you do see that he went through the Talmudic passages and the medieval authorities, meaning he really did the work. In the Shulchan Arukh he only writes the bottom lines. The second question that relates to first-order and second-order ruling is how you decide: do you decide because you were convinced that this is what the Talmud says, or do you decide because that is what the majority of decisors say? That is what I meant when I spoke about the Mishnah Berurah. His mode of decision seems to me closer to second-order than to first-order. He did not go against the great decisors. He did not. He would decide between groups of decisors on various questions, but he would not go against the great decisors and tell me, no, it does not seem that way. That won’t happen there. Okay, so the last remark I gave about the difference between formal authority and substantive authority and how that connects to the picture I described brings me to our next topic. And essentially I want to show that a halakhic decisor is simply an expert in Jewish law. Meaning—and what do I mean by that? What am I trying to exclude? I am trying to exclude the conception that says that the decisor constitutes the law. When we come—my friend, my good friend Nadav Shner, the professor of physics in the physics department at Bar-Ilan. He once wrote an article called—I think it was the article “The Jewish Closet of Lies.” That’s what he called it.

[Speaker E] He was my professor in electrical engineering.

[Rabbi Michael Abraham] Okay, we’re old friends from the doctoral period; we were also study partners, we learned together for about a year. In any case, he wrote there “The Jewish Closet of Lies,” and one of his claims there is that people come to a rabbi, and many times we praise the rabbi for understanding who is standing before him and how to rule correctly for him, and that it is not always right to rule for every person in the same way; one needs to understand his circumstances, his spiritual level, his economic state, and all kinds of things of that sort. And he says that this approach is outrageous, because what is really happening is this: let’s say a couple comes to a rabbi—it has happened to me too more than once—and says they want to postpone having children. It doesn’t suit them right now; they are in one or another stage of life and want to delay it a bit. The question is whether they are halakhically permitted to do so. So the rabbi tells them either that they are permitted or that they are forbidden, I don’t know; he gives them some ruling. And they relate to this as though the rabbi permitted it for them. You know this expression? “That decisor permitted it for me.” A decisor cannot permit. A decisor can only tell you that it is permitted. A decisor has no power to constitute law. A decisor can reveal to you as an expert that this is the law. That is a huge difference. And I’ll sharpen this further later. Meaning, if the decisor erred, then it is forbidden for you even though he said it was permitted. And if it is permitted, then it is permitted for you even without the decisor telling you that it is permitted, because it is permitted. All you can do is use the decisor in order to know what Jewish law says, just as you use a doctor in order to know what medicine says. He is an expert in Jewish law. The decisor is a halakhic consultant. And in this he is very different from a judge. Because a judge constitutes the law. When the judge determines that I have to pay you, that imposes on me an obligation to pay you. The very fact that he determined it. By contrast, a decisor—even if he tells me that something is forbidden, I am allowed to do it if I think it is permitted. Because in my view it is permitted, so why should I care that he said it is forbidden? Because the decisor does not constitute the law; the decisor reveals the law. And I go to him as an expert because he is an expert in Jewish law, and if I want to know what Jewish law says, then I go to an expert. That’s all. Now this is a completely different conception from the one common in the street. People come—you know this, when someone comes to a rabbi and pressures him to permit something? “Permit it for me, please permit it for me, I need a dispensation, I’m in trouble.” If you think it’s permitted, then do it. If it’s not permitted, what good will it do if I permit it for you? If I tell you it’s permitted and I lie to you? Whicheve way you look at it, if it is permitted then do it even without my saying so. If it is not permitted, then what do you want me to do? I cannot permit you something that is forbidden. I have no constitutive power in Jewish law. All I can do is tell you what Jewish law says. Therefore there is no such thing as a decisor who permits something to someone. That’s nonsense. And therefore a decisor also should not give a ruling that suits the questioner. That is a foolish myth. The decisor should tell the questioner what Jewish law is, and the questioner will decide what to do. It is not the decisor who decides for him what to do; the questioner decides what to do. And in order to see this, that is the bottom line—that is where I want to get. Now I’ll step back and let’s begin to see this slowly. In order to see this, I want to begin with a question that seems on the face of it different. I want to ask the question: what does it mean to rule leniently and what does it mean to rule stringently? There is—you know—a story. Now, many times people treat this statement as some kind of joke or sharp quip, but it is neither a joke nor a quip. How would you define such a ruling? Is it a lenient ruling or a stringent ruling?

[Speaker B] It depends what the answer to that question is. That she is permitted—

[Rabbi Michael Abraham] She is even required to travel on the Sabbath in order to try to save her son.

[Speaker D] Wait, if it is required, then that reduced her options.

[Rabbi Michael Abraham] If she is required… you already know the thesis.

[Speaker D] No, no, I’m just saying, if you said it in a way that she is required. If she is permitted, that’s another story.

[Rabbi Michael Abraham] I said that she is required.

[Speaker D] You already know the thesis, Yitzhak.

[Rabbi Michael Abraham] One second, let me do it step by step. So then—she is permitted, not required, fine? She is permitted to travel on the Sabbath. So is that lenient or stringent? It is lenient in the laws of saving life, and stringent… lenient in the laws of the Sabbath and stringent in the laws of saving life. So is it lenient or stringent, practically speaking? I don’t know. It depends from what angle you look at it. Meaning, the concepts of leniency and stringency are not so clearly defined in the way people think. These are more complex concepts than people imagine. And let me bring you a few stories so you can see the significance of this.

[Speaker D] Sorry, why if it is permitted is that stringent regarding saving life? If it is permitted, not required—why is that stringent?

[Rabbi Michael Abraham] If it is permitted, then in the end it is also required. I’ll get to that in a moment. Because if it is permitted, then you are obligated to do it. After all, on the Sabbath there is no such thing as something that is merely permitted to desecrate the Sabbath for. There is no situation where it is permitted to desecrate the Sabbath… meaning, it is permitted only if it is necessary. And if it is not necessary, then it is forbidden. There is no situation in which there is just a permission to desecrate the Sabbath. Either there is an obligation to desecrate the Sabbath, or it is forbidden to desecrate the Sabbath. There is no in-between. I am only ruling for you in terms of the laws of the Sabbath that it is permitted. But once it is permitted, then clearly it is also obligatory to do it. Fine, I’ll show that later, in a moment. Look, I… there is some story in… maybe I’ll ask another question before the story. In a case of doubt regarding blessings, we are lenient. If I am in doubt whether I recited a blessing over an apple or I did not recite one, and I now want to eat it, then in a case of doubt regarding blessings we are lenient. The law says that I do not recite the blessing. Okay. Why is that called being lenient?

[Speaker B] Because the prohibition of uttering God’s name in vain is more severe than not reciting the blessing.

[Rabbi Michael Abraham] Then that’s stringency! What you are describing now is stringency. It is stringency about uttering God’s name in vain—you are forbidden to recite the blessing again because that would be uttering God’s name in vain.

[Speaker B] Fair enough, yes, yes, it’s stringency.

[Rabbi Michael Abraham] But there’s seemingly one side here that’s lenient… so why do they say, “In cases of doubt about blessings, we rule leniently”? They should have written, “In cases of doubt about blessings, we rule stringently.” Let me ask a different question. “Leniently” means not to recite the blessing. Why? Because it’s more convenient for me not to recite it. In other words, I’m basically standing opposite the Jewish law: the fewer laws I have to keep, that’s called a leniency. Why? Because my real interest is not to keep the Jewish law. Sometimes I have no choice, I have to. To be lenient with me means to waive the law for me; that’s called a leniency. In other words, my interest is… and “leniency” means going with my interest. Now I ask: what about someone whose interest is דווקא to recite the blessing? A great righteous person—he can’t eat without making a blessing. So let’s be lenient with him; let’s allow him to recite the blessing. We’re going with his interest. His interest is to bless; he’s built differently from us. So maybe “in cases of doubt about blessings, we rule leniently,” for such a person, means that he should recite the blessing? After all, that’s what he wants. An ordinary person is against the Jewish law; the more he can get out of extra obligations, the more comfortable it is for him, so that’s called a leniency—we let him off. But there are people whose interest is specifically to fulfill as much as possible, so from that standpoint… for them, the leniency would actually be to recite the blessing.

It reminds me of the story about the previous Klausenburger Rebbe. I once heard that he sat in the sukkah even when it was raining. He said he couldn’t bear leaving the sukkah on Sukkot; it was simply impossible for him. “One who is distressed is exempt from the sukkah”—fine, exempt is exempt from the sukkah. Meaning, he was so distressed by sitting outside the sukkah on Sukkot, by eating in the house on Sukkot, that he simply couldn’t do it, so he sat in the sukkah in the rain and ate there. On the face of it, that really was his distress: not fulfilling the commandment of sukkah. My distress is when I’m sitting in the sukkah and rain is pouring on me, so they tell me, okay, one who is distressed is exempt from the sukkah; you’re exempt, go eat in the house. But he was distressed by eating in the house, not by eating in the sukkah. He was distressed by not fulfilling the commandment—that’s what pained him. He’s built differently; he’s not standing opposite the Jewish law, he’s working with the Jewish law. So maybe a lenient ruling for him should be different from a lenient ruling for ordinary people? Seemingly yes—we go in his direction.

Now look at this nice little story that appears in the Brisk Haggadah. I’ll share the… the Brisk Haggadah, edited by Gerlitz, is called MiBeit Levi. At the end of the first volume—there are two volumes—at the end of the first volume there are stories, saintly tales about the Briskers. There are Lithuanian stories too, like Hasidic tales. The story goes like this:

“During one of Maran, the author of Beit HaLevi’s visits to the city of Minsk, one of the wealthy and powerful men of the city entered to see him, a member of the enlightened circle, and suggested to him that the time had already come for the great rabbis of the generation to try to ease some of the severe laws a bit, and in that way those who had drifted from the path of Torah would surely draw closer again.” He has a proposal.

Beit HaLevi—who, after all, was such an extreme strict one—smiled and revealed to the worthy proposer that in fact he himself was among those rabbis who had long since been very lenient in many laws. He was a famous lenient authority, Beit HaLevi. Yes.

“Just as merchants do not immediately display all their wares,” said Beit HaLevi, “so too I will present to you seven examples, and these will testify to the rest of my merchandise.”

There are those who are strict and hold that the time for the evening prayer is only until midnight, and after that it can no longer be recited, whereas I ruled leniently that it is permitted to pray until dawn rises.

There are those who are strict regarding Rabbenu Tam’s tefillin, that one must be established in piety in order to put them on, whereas I ruled that anyone may put them on. So he was lenient in that matter too.

There are those who are strict not to say liturgical poems in the middle of prayer because it constitutes an interruption in prayer, and I ruled leniently that it is permitted to say them.

There are those who are strict not to study on the eve of Tisha B’Av when it falls on the Sabbath, whereas I ruled leniently that one may study even the actual laws.

There are those who are strict not to fast on Rosh Hashanah, and I ruled leniently that it is permitted to fast on Rosh Hashanah.

There are those who are strict and say it is forbidden to observe two days of Yom Kippur—yes, some Yom Kippur in Shanghai—and I ruled leniently that it is permitted to fast for two days. Yes, that’s a well-known leniency.

There are those who are strict that if one forgot one night of counting the Omer, he can no longer continue counting with a blessing, whereas I was lenient and held that one may continue counting with a blessing.”

Now actually, by the way, that last leniency is exactly the leniency I talked about before—the leniency where he permits counting with a blessing, not where he forbids the blessing. “In cases of doubt about blessings, we rule leniently” usually means that we forbid reciting the blessing. Here he says: right, the leniency is that I permit the blessing, not that I forbid it—that’s what’s called leniency.

When you go through this, it sounds absurd. Why does it sound absurd? Because all these leniencies are leniencies that work against us. They’re leniencies that actually make our lives less comfortable, not more comfortable. And our instinct is that “to be lenient” means to make my life easier, right? That’s what’s called lenient. So now I also have to study on the eve of Tisha B’Av when it falls on the Sabbath, fast on Rosh Hashanah, fast for two days on Yom Kippur—that’s all making life heavier. How can things like that be called leniencies? A leniency is supposed to make life easier, like not counting with a blessing, not reciting a blessing, or all kinds of things where you’re exempt from doing something. But fasting for two days—that’s a leniency?

But on the other hand, go through them one by one: every one of those clauses really is a leniency. They are leniencies. He permits things that others forbid. There’s someone who forbids fasting on Rosh Hashanah—to our great joy, of course, because naturally we want that—but he forbids fasting on Rosh Hashanah, and Beit HaLevi is lenient: he permits this forbidden thing. Someone who permits a prohibition is being lenient, no? That really is a leniency. Or fasting for two days on Yom Kippur. There are those who forbid it; Beit HaLevi is lenient, he permits fasting on Yom Kippur. Why isn’t that a leniency? It is a leniency. But if those are leniencies, then again I return to the basic question: does “leniency” mean making my life easier, and that’s why it’s called a leniency? Making life easier, more convenient? From here it looks like no—if I accept that these seven leniencies really are leniencies. So then what is it? What is the definition, what exactly is the definition of a leniency? What does it mean to be lenient?

There’s something here—if I go back to “in cases of doubt about blessings, we rule leniently,” if I go back to that, then there too I really asked the same question. “In cases of doubt about blessings, we rule leniently” means not to recite the blessing. Now usually that seems natural to us. Why? Because we want an easy life. If we don’t have to recite the blessing, life is easier. Therefore exempting us from a blessing is a leniency. But there I asked: yes, but what if someone actually prefers to recite the blessing? Then from his perspective that’s a stringency, not a leniency. So maybe if the rule is “in cases of doubt about blessings, we rule leniently,” then someone who likes to bless should bless, and someone who doesn’t like to bless shouldn’t bless—that’s called being lenient, no? So in what sense is the rule “in cases of doubt about blessings, we rule leniently”?

I want to make the following claim. In the context of blessings, the situation is complex. In almost every context it’s like this, but in the context of blessings it’s especially clear. Why? Because if the blessing is an unnecessary blessing, then you violate “You shall not take.” After all, you’re saying God’s name in vain. So there’s a prohibition here—whether Torah-level or rabbinic, that’s a dispute among the medieval authorities—but there is a prohibition here.

So what happens? When you say “in cases of doubt about blessings, we rule leniently,” you’re basically saying: do not recite the blessing. But the fact that one may not recite the blessing is not the result of the rule “in cases of doubt about blessings, we rule leniently.” It’s the result of the concern about taking God’s name in vain. Or in other words, the rule is this: “In cases of doubt about blessings, we rule leniently” means you are exempt from reciting the blessing. You can recite it and you can choose not to recite it. You are exempt; there is no obligation to recite the blessing. That is what “in cases of doubt about blessings, we rule leniently” means. Except that once I have been lenient in the laws of blessings, and now I have before me two options—either to recite the blessing or not to recite it—then the prohibition of “You shall not take” comes and says: fine, if you have two options, then don’t recite it; don’t get yourself entangled in taking God’s name in vain. That is actually a stringency. The prohibition against reciting the blessing is a stringency. “In cases of doubt about blessings, we rule leniently” only means that there is no obligation to recite the blessing. Once there is no obligation, the stringency arrives and says: if so, then it is forbidden to recite it, because that would be taking God’s name in vain.

Or in other words, I’ll now define the concept of leniency. The concept of leniency means opening up more legitimate halakhic options. That is what it means to be lenient. To be lenient means that there is no prohibition and no obligation. What is the connection between saying there is no prohibition and saying there is no obligation? It means you have more options open to you. You thought something was forbidden? It isn’t forbidden—that option is open to you. You thought there was an obligation, meaning you had no option not to do it? They tell you no, there’s no obligation—you have the option not to do it. In other words, leniency means opening additional options. That is what leniency means. That is the definition of leniency, conceptually.

And people don’t understand this, including halakhic decisors. That is the concept of leniency. The concept of leniency means this: a lenient approach versus a strict approach is measured not by the question of the bottom line; it is measured by the question of how many open options it allows, how many legitimate options it places before the questioner. A strict decisor places fewer options before the questioner. A lenient decisor places more options before the questioner. If one person has three options and someone else allows four options, then the second is the lenient one and the first is the strict one. That is the difference between leniency and stringency.

And this additional option that he opens may be an option that is very inconvenient for me in life. For example, Beit HaLevi says one of his leniencies is that there are those who forbid fasting for two days on Yom Kippur. And he is lenient. What does lenient mean? That he does not forbid fasting for two days. He does not obligate you to fast for two days. You can fast for two days and you can choose not to fast for two days. In other words, those who forbid fasting for two days have closed off the option of fasting for two days; there is only one option—to fast one day. He says there is no prohibition on fasting for two days. What does that mean? It means there are two options: either to fast one day or to fast two days. So he opened up more options. If he opened up more options, he is lenient. That is the definition of leniency.

Except that if it is permitted to fast for two days on Yom Kippur and you are in a case of uncertainty about the day, then it is completely clear that from the standpoint of the laws of doubt you need to fast for two days, because otherwise it may be that you didn’t fast on Yom Kippur. But the fact that you need to fast for two days is not part of Beit HaLevi’s leniency. Beit HaLevi’s leniency is only the first statement: you can fast one day and you can fast two days; there is no prohibition on fasting for two days. Except that after both options are open, now the consideration of the laws of doubt comes and says: fine, then a Torah-level doubt is ruled stringently. If you don’t know when Yom Kippur is, fast for two days. If it were forbidden to fast for two days, then under the laws of doubt they would not require me to fast for two days, because it would be forbidden. But once it is permitted—and that permission is a leniency—once that permission exists, then the laws of doubt come and say: fine, so now you must fast for two days.

Do you notice the structure? It is exactly like the structure of “in cases of doubt about blessings, we rule leniently.” “In cases of doubt about blessings, we rule leniently” means you can recite the blessing and you can choose not to recite it. Except that after both options are open to you—and therefore it is a leniency, because both options are open to you—now the prohibition of “You shall not take” arrives and says: fine, if you are not obligated to recite the blessing, then it is forbidden. But the prohibition on reciting the blessing is a stringency, not a leniency. That is a stringency from the laws of “You shall not take.” The leniency is a leniency in the laws of blessings. From the standpoint of the laws of blessings, you have no obligation to recite the blessing. The stringency is a stringency in the laws of “You shall not take.”

Do you see the parallel to Rabbi Chaim, who is strict in the laws of saving life and lenient in the laws of the Sabbath? Almost every halakhic dilemma is like this. Almost every halakhic dilemma really involves two values, or prohibitions, or commandments, or something like that, standing opposite each other. And when you are lenient in one, the other comes in. Therefore, it depends from which side you are looking in order to determine whether something is a leniency or a stringency.

So when they say, “In cases of doubt about blessings, we rule leniently,” they do not mean the final bottom line, which is that you may not recite the blessing. The bottom line is not the leniency. What they mean is the first line, which says: it is permitted to recite the blessing and it is permitted not to recite the blessing. Everything is open. Both options are open. Except that after both options are open, because of “You shall not take,” you don’t recite the blessing. That is already a stringency. “In cases of doubt about blessings, we rule leniently” is not talking about that. It is only talking about the first stage.

And all the leniencies that seem strange to you are of this type. Leniency always means opening options, except that very often when options are opened, another law comes and says: fine, then choose the more demanding option. So then you ask yourself, wait a second—in what sense is that a leniency? You permit me to recite the evening prayer after midnight if I missed it. That really is a leniency. Why? Because without him it would have been forbidden to pray, and he opened the option of praying. That’s another option. On the other hand, if you have the option of praying after midnight, then you have to pray, because you didn’t pray before midnight. So from the standpoint of the laws of prayer, there’s a stringency here. But in his conception, where he says it is permitted to pray after midnight, that really is a leniency. He removes the prohibition on praying after midnight. So he opened another option; that is a leniency.

All of Beit HaLevi’s leniencies here are of the same sort. And they really are leniencies; it’s not a joke. They really are leniencies. It’s just that these are leniencies that end up giving us a hard life. Because leniency does not necessarily mean an easy life. Leniency means more options. The additional option that was added for you through the lenient ruling may be a terribly irritating option—like fasting for two days on Yom Kippur, or fasting on Rosh Hashanah, or reciting the evening prayer at three in the morning, which you don’t want, or reciting a blessing in a situation where you might otherwise have been exempt. All these options are, so to speak, irritating options, so it seems to us that this is not a leniency. But as long as these options are added because of the ruling, it really is a lenient ruling, because it added another option. I don’t care that the option it added is one that annoys us.

For the Klausenburger Rebbe it wasn’t annoying, because that’s already a subjective matter. But in order to say that something is lenient, I am not supposed to stand opposite the Jewish law in an oppositional way, so that whenever there are halakhic demands on me that is called a stringency, and whenever I am exempted from halakhic demands that is called a leniency. That’s how we usually think. It’s not correct.

The option not to sit in the sukkah when it’s raining—the exemption from the commandment of sukkah when it’s raining—that is a leniency even for the Klausenburger Rebbe, even though it bothers him. It is a leniency. It is a leniency because it allows him to sit and allows him not to sit. After that he comes along with his meshugas, and he decides to sit anyway. That’s his own decision. But the ruling itself, that he is exempt from the sukkah—exempting someone from the sukkah is a leniency. It makes no difference at all whether from his perspective that makes life harder or easier. There is no connection between a lenient ruling and an easy life.

It’s true that if you open more options than someone else has, then of course your life can never be harder than the other person’s. Right? If you have three options, and I have your three options plus one more, then my life will always be easier or equal—not harder than yours. Why? Because if the easiest option is one of the first three, then both of us can choose it. If the easiest option—the easiest on life, I mean—is the fourth one, then I can choose it and you can’t, so my life is easier.

You know, it’s like restaurants. A kosher restaurant can never be tastier than a non-kosher restaurant. It can only be less tasty or the same. Why? Because if the kosher food were the tastier option, then the non-kosher restaurant would choose the kosher food. It has no problem with that. It just also has the option to choose non-kosher food if that is tastier—an option the kosher restaurant does not have. Therefore always—and this isn’t a joke, these things are not jokes, it’s a mathematical law—a kosher restaurant will always be less tasty than a non-kosher restaurant, or the same. Or more expensive. Money also plays a role here, but if we say everything costs the same, then it will always be less tasty. Less or equal. This is a mathematical rule, there’s no trick here.

And in that sense, a lenient ruling really does make life somewhat easier. Easier, or at least not harder. Even if you opened an option that in itself is more burdensome, I can always choose not to take it. So it doesn’t make my life harder. Except that after you open that option, another halakhic rule may come and say, ah—but now you have to choose that option. Once it’s open, you are now also obligated to do it. Like the examples I brought earlier.

That’s why this issue of leniency and stringency is so confusing. In the next class I’ll try to move on from here and bring you to where I promised we would get. This is only the first step on the way. Any comments or questions? Okay. Goodbye. Thank you very much. Shalom.