Q&A: Policy Considerations
Policy Considerations
Question
Hello Rabbi!
You wrote in several places against mixing policy considerations into halakhic rulings. Can it not be said that just as human dignity, suffering, loss, and so on are considerations that must be weighed in a halakhic ruling, so too considerations of “what will people say” or “what will result” must be included in the strict letter of the law? (I emphasize the strict letter of the law, meaning that this is actually what Jewish law says, which also somewhat softens the problem of falsehood.) And perhaps one should distinguish here between Torah-level law and rabbinic law?
In other words, do you categorically reject considerations of “what will people say” or “what will result,” holding that they have no halakhic validity, or do you think their use is correct only in extreme cases (especially nowadays)?
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An additional question: in your remarks about changes in Jewish law following changes in reality, which in your view are not really changes at all (midrashic conservatism), one could seemingly say that the Sanhedrin established—or that one could argue logically—that even when reality changes, only an authorized religious court can change the strict letter of the law, so as to avoid halakhic chaos (because otherwise it could happen that a hundred Jews would practice in a hundred different ways, since they assessed reality differently).
Thank you very much
Answer
I never wrote against that anywhere. What I did write is that it should be put on the table that this is policy and not pure halakhic ruling.
Human dignity is not policy but a halakhic rule.
Preventing chaos is a policy consideration and cannot change the Jewish law, unless the Sanhedrin determines it. And even then, one should say that the reason for the ruling is preventing chaos and not a purely halakhic consideration. That way, each person will retain the consideration of whether to accept it or not.
Discussion on Answer
A–C. He is not violating Jewish law; otherwise it would have been Jewish law.
D. I completely agree: if the original understanding of reality was mistaken, there is no need for formal repeal. It is nullified automatically, like a mistaken transaction. But if reality changed, then that is a change in Jewish law, and in principle it requires a Sanhedrin. Except that in practice this often happens without a Sanhedrin, apparently when the need is great enough.
Regarding D:
1. According to the reasoning I suggested, why should there be a difference between an error in reading reality and a reality that has changed? After all, in both cases the Sanhedrin established Jewish law on the basis of a certain reality (as it understood it), and today reality is different (and so we are acting improperly). And in both cases there is a concern about chaos.
2. How does this fit with the mechanism of midrashic conservatism? Seemingly, according to this, one cannot use that mechanism. Do we need to add the assumption that the absolute authority of the Sanhedrin is correct only in a situation where there is no Sanhedrin—or rather, not when for 2,000 years we have already been without a supreme religious court?
I explained this in the book. When the original ruling is based on an error, it is automatically void. When reality changed, the original Jewish law was valid, and now they want to repeal or change it. For that, a decision of a religious court is required.
A. According to what you’re saying, if someone, let’s say, accepts the rationale of halakhic policy but acts the opposite way, is he violating Jewish law or something more general? (the will of the Torah or something like that—in other words, it’s just proper not to act that way).
B. If one holds that he is actually violating Jewish law, then it would seemingly follow that a policy consideration is a halakhic consideration in every respect. In other words, one could seemingly say that there is no difference at all between “what will happen if” and “human dignity,” meaning that both are halakhic considerations. Why make the distinction between them at all?
C. True, policy considerations depend on reasoning according to the case and do not necessarily have proof from the sources, but that does not detract from saying that they are a halakhic consideration for one who adopts them. The use of “human dignity” is also subjective.
This also does not contradict what you said, that a halakhic authority should present things to the questioner as they are.
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D. In my opinion, you missed my second question. It is not related to the first question at all.
A question came to me regarding your remarks that changing Jewish law due to a change in reality is not really a change at all and happens automatically without the need for the Sanhedrin’s approval. Seemingly one could say (and it sounds reasonable) that the Sanhedrin limited this mechanism and kept it only for itself. The reasoning: if everyone changes the law according to reality, every Jew will observe a different Jewish law. Therefore it should be said that any change in reality that seemingly entails a change in law requires a determination by the Sanhedrin.