RISE! PARTE DEUX

BS"D


Enjoy this update after you read the earlier post:
 
First of all, I believe that minhag can basically "change" Halakhah in many different instances, but it will never be  defined that way.  The rabbis will find some formalistic way to justify that it was indeed Halakhic all along.  For example, regarding this Minhag for women to not say brakhot when they are in niddah, the Magen Avraham suggests that a woman can just say amen to other people's brakhot during that time.  I am sure I do not need to explain to you the stretch of this attempt to justify a practice.  What I respect is that I believe he is doing it to justify the practice of women.  I don't think he is trying to keep women from saying brakhot.  After all, it's just a minhag, not Halakhah.  He is rather trying to smooth out this odd statement of the Rama that reflects an existing minhag . 
 
Regarding the second question of what is Halakhah, that was actually the last research project.  I looked into the idea of multiple truths in halakhah.  Obviously, different people have different ideas, but I will try tro explain a few approaches on one foot.  Rav Moshe Feinstein believed there is one truth that theoretically could be understood in Halakhah (meaning that there is actually one right answer to every question), but that that truth is not accessible to us, so our job is to try to reach the truth through honest intellectual pursuit, and to be consistent, thereby allowing the possibility that we could be working within the "right" framework.  So his explanation of "Eilu Ve-eilu divrei Elokim Hayyim," the famous statement in the Talmud that the words of Hillel and Shammai (and others) are all the words of the living G@d, is only in this limited context. 
 
I don't know if I can quote the other approaches by name, but there are those who believe that every opinion that meets intellectual scrutiny is valid, and that G@d intentionally created a system with multiple truths.  This approach is limited, however, by the idea that if an actual mistake was made, that is retroactively not a valid option.  Rabbi Clapper (I think) from Harvard Hillel (I think) wrote a really interesting article (that I didn't actually read) about this crazy case that I will tell you about.  (I may not get it all exactly right...)  We learn in one place in the Talmud that if the Sanhedrin makes a decision, none of the rabbis there may go back to his town and poskin the opposite.  They may teach another opinion, but as an invalid Halakhic option.  They may also not act against the voted Halakhah, by punishment of death.  Elsewhere in the Talmud we learn that a rabbi who knows the Sanhedrin is mistaken on a point, he must do what he knows is right (perhaps distinguished in the first case by the fact that there there are differences of interpretation, but here he feels confident that there is a true mistake).  As a result, the possibility arises that there could be a case in which if the rabbi opposes the Sanhedrin and behaves against it, he will be killed, but if he goes with them and it turns out that they are all transgressing a punishable by death law, he could be killed for that.  I may not be getting it exactly right, but that is the gist (on one foot). 
 
The point is that there are some things that are simply wrong.  How are they determined?  Good question.  But for example, perhaps someone didn't have all the information, and we realize that he was missing a critical element of the Halakhah.  In the realm of minhag, there is an idea of "minhag taut"-- a "mistaken minhag."  I can't remember if he exactly uses that phrase, but Rav Ovadiah Yosef basically says that about several customs that originated from this "baraita de Niddah" that got us started on this discussion.  It is not clear in his teshuvot that he is aware that the customs come from this sectarian source (which may be none other than a remnant of the traditions of Beit Shammai), but when he is asked by someone if they have to follow their minhag that when in Niddah a woman has to be in a separate bedroom with separate bedding and clothing for her niddah time, and her family can't benefit from any of her works during that time (ie. she can't cook them dinner, etc.) and on and on and on, he totally rejects this minhag as against Torah (and thus they can stop without an anullment of vows that is required usually to stop a minhag-- this was the question asked of him).
 
Beyond these two examples, I don't know what exactly defines Halakhah.  There is clearly an element of what the community is ready for, but then you have such different communities, and that too ends up being a really fuzzy line.  In the minhag class, the teacher kept asking whether via minhag, the practice of women reading Torah for men could become Halakhah over time.  I never fully understood how, if it could be Halakhic in the future, it isn't now, but clearly there is some sort of element of communal acceptance (it turns out that Rav Henkin raises exactly this point, saying that it may be that in 50 years these Torah readings will be "accepted" and will then be "Halakhic.") .  The question is (phrased in my own terms), if a minhag creates a practice that is then later justified formally through Halakhic language, since the language is that it was truly Halakhic, surely it was Halakhic all along, and we just never knew!  But that's just my own thought. 
 
For me there are two questions about how we approach the search for p'sak.  One is whether or not your understanding is comprehensible to the world of Halakhic authorities.   The other is whether or not you yourself are working within a consistent framework.  Are you yourself trying to get at G@d's truth?  My hevruta is very into saying that we are all just doing what we want anyway, and implying that my choice to wear pants [around women] or to not cover all my hair or whatever is really about my own personal comfort, and not at all about fearing G@d.  But when I am engrossed in the struggle of trying to undersatnd the Halakhah in order to understand how I believe I can dress or whatever, that is when I feel closest to G@d.  That is when I am most living in tension of my own reality and my commitment to behave according to what G@d wants from me.  I think taking the "frummest" approach to dress and everything else can be sort of a cop out, when done in lieu of immersing yoursenf in trying to understand Torah, and that is a loss.
 
What I can articulate best about the Halakhic approach is my own conclusion, which is that I believe the idea is to approach inquiry with rigour, intellectual honesty, and Yirat Shamayim (fear of Heaven).  When I want to, for example, permit something that most believe to be forbidden, I need to be particularly careful in my research that I am really trying to understand the sources and what they are saying and what is behind them, with a consciousness that if I am "fooling" myself through clever readings I need to answer not just to the Halakhic world, but to a G@d who allows for multiple truths , but only for those who are seeking truth. This is also why it is so important, when possible, to have a rabbi (or similarly educated individual) who has a much more solid understanding of the vast Rabbinic literature, as well as someone to keep me in check when I am dealing with questions that are too personal to answer objectively.  The flip side of that is that it has to be a rabbi who you know and trust and who know you, because p'sak Halakhah is not entirely objecitve. 
 
An example:  Until recently, I didn't know exactly how I felt about the Shira Hadash style minyan (where women read Torah for men).  I knew there was a way to Halakhically justify it, but I also think there are Halakhic ways to justify just about everything, and who is little old me to know if this is really intended.  So I went to an evening at Yedidya, where thay had Rav Henkin and Professor Rabbi Daniel Sperber speak on the topic.  Henkin is against.  Sperber wrote the most authoritative teshuvah for.  I was not so impressed with Rav Henkin's arguments, which are complicated so I won't go into them now, but I can tell you what I thought was impressive about R' Prof. Sperber.  First of all, he is not part of a world that wants these Torah readings.  He is a rabbi of a shul that would never allow for such a thing.  But he read about the issue, and he read Rav Henkin's arguments against, and moved by an intellectual discomfort of what was written, he felt compelled to write a response, because he believes the readings are both Halakhic and potentially valuable in today's world.  The way he read the sources I found so compelling, and I felt that he was showing how the tradition has really important values that have been stifled in our time for a variety of sociological reasons, and that these losses are really bad for the Jewish people today.  For example, he sites a Gemara about how in the days of the Temple, they allowed women to put their hands on the korbanot ("smicha") because, even though it was forbidden to them, it provided them with "Nachat Ruach" ("spiritual comfort).  A later example of this is regarding the minhag of women not entering a shul in niddah.  Those who forbid it actually permit it on high holidays for basically the same reason - that it would be too sad for them to not be able to be there when everyone else is.  As R' Prof. Sperber argues, when they are willing to bend the Halakhah in cases that are clearly forbidden, shouldn't they in cases where there is clear permissiveness in the Talmud? (and to add something that may not be exactly the way he said it, in a world where public ritual participation is quite important to spiritual growth for many modern women in a way it wasn't in the past, all the more so is it impotrant!). 
 
He also brings a proof from showing that in every case in the Talmud (except maybe one, he says), when the Talmud says something is Halakhically permitted but not recommended for some specific reason (as is the case with women reading Torah for men and "K'vod Hatzibbur"), it is not taken as Halakhah, but rather, as a recommended practice for now, with the understanding that there will be different realities in the future.  I believe this is part of the beauty of the nuance of Rabbinic sources.  I was so moved by his speech, not because of his permissiveness in this one issue, but rather, because I know he is extremely knowledgeble, and he has a very compelling understanding of the Halakhic system, intellectually and morally.  He sees the beauty in the system that I know is there but I feel is sometimes hidden in contemporary Halakhah (largely because of a fear of modernity and feminism).  I believe that if 300 years ago a group of women wanted to get together and read from a sefer Torah, it would not have met with the kind of hostility that women's Torah readings met however many decades ago.  It may have just been seen as pious. 
 
What is Halakhah?  Good question.  In our transient and post-Modern world, there is no clear answer to that question. In a world where everyone is out to deligitimize everyone else, we have no choice but to follow our conscience regarding what seems compelling to us - where we feel G@d is.  I personally feel that since most of the Jewish world is confused (I can't speak for the non-Jewish world) as to where is the true word of G@d, there msut be some point to that. So I try very hard to respect that any system may be right, while I go with the one that seems most "right" to me.  All that said, part of what is compelling to me about the Modern Orthodox model of, say, Rabbi Berman et al. (as opposed to, shall we call it, "popular Modern orthodox practice") is the idea of constantly pursuing truth.  I don't see as much meaning in the idea that if there is a kula (leniency) -- go for it.  That's just me personally.  When I researched the idea of multiple truths in the Talmud, I felt very strongly that there is an idea of multiple truths and respect for differing opinions, but always in the context of each rabbi/person pursuing truth.  (ie. in the passages of Eilu v'eilu that I mentioned above, it says they are all the words of the living G@d and the Halakhah is like Hillel, and if you have a tradition like Shammai, you can follow that, but you can't take just the leniencies of both or the stringencies of both (it tells you what you are if you do both, but I can't remember, and I am really trying to get to some kind of conclusion here). 
 
The holiness, for me, is in pursuing truth in the sources, while accepting the approaches that allow me to observe the Torah in both fear and love.