Creativity, Not Formalism: Towards A Survey of Rav Yoel Bin-Nun’s Halakhic Methodology
BY: Shlomo Zuckier
Rav Yoel Bin-Nun is known as one of the most creative minds of the past generation in the Orthodox world. His most acknowledged accomplishments are in the world of Tanakh, where he has been one of the leading revivers of Orthodox literary Tanakh scholarship in Israel over the last 30 years, presiding over the Tanakh revolution. He has lectured extensively in Talmud, serving as a Rosh Yeshivah at Yeshivat ha-Kibbuts ha-Dati for several years, until his retirement in 2006. He has spent significant time and energy in the realm of Mahashavah (philosophy) as well, recently finishing his dissertation on R. Abraham Isaac ha-Kohen Kook.
This article, however, will ignore all of those accomplishments and focus on the halakhic output of this ish eshkolot (Renaissance man). Over the last couple of years, R. Yoel has published a collection of halakhic works (Me-Hevyon Oz). A different book he recently published also contains some halakhic material, and he has also lectured on his halakhic opinions, some of which are well known. While this article will present a preliminary thesis of his halakhic methodology and principles, it will not serve as a true critique of the validity of his positions, though it will note cases where he diverges from standard positions.
I will note at the outset that this article’s purpose is to attempt to outline R. Yoel’s approach to pesak
Halakhah based on principles that are reflected in his halakhic positions. Due to limitations of space and the author’s limited assertiveness, it will not attempt to locate where this position falls among the gamut of approaches to Halakhah (though follow-up articles on the matter are welcome).
R. Yoel is a creative and maverick thinker, in all areas of his Jewish oeuvre, including his halakhic pesakim. One notices this approach immediately upon meeting R. Yoel, as he usually is found wearing his tsitsit on his suit jacket, an extremely rare halakhic practice. The sources that he utilizes as the bases for his pesak are the traditional halakhic works of the Shulhan
Arukh and its commentaries, as they follow the track laid out for them by the Gemara and Rishonim. However, there is a certain distinctive nature in the methodology of how he reaches his decisions, which this article will attempt to spell out.
An important preliminary note to make is that R. Yoel’s positions are neither consistently meikel (lenient) nor mahamir (stringent), but are certainly often distinct from the norm. If he feels that a certain position is right, he will argue powerfully for it, regardless of how it squares with mainstream contemporary practice.
Probably the most important and basic principle of R. Yoel’s halakhic methodology is the idea of returning to the original sources and principles and ensuring that they are being followed in current-day reality, as opposed to certain other approaches that favor traditional interpretation and development. As explained above, this can make his opinion fall out on the meikel or the mahamir side of things, and sometimes on both sides within the same issue. A particularly good representative case of this ideology is R. Yoel’s opinion concerning the prohibition (for some) against eating kitniyot (legumes) on Pesah. The original prohibition was on legumes, such as beans, and on rice, with the idea that they resembled hamets and might present problems if hamets and kitniyot were confused. R. Yoel’s approach to this law, which he maintains for the general public as well, diverges in two major practical senses from the standard pesak Halakhah. R. Yoel’s first contravention of mainstream current practice is his claim that processed legumes (e.g. corn oil) are permissible. He argues this based on the fact that the original reason for the law does not apply since such processed foods cannot possibly be mistaken for hamets, and also that the formal Rabbinic institution against such foods was only said about them in their solid forms, not their processed versions. This is obviously a significant kulla (leniency), and it makes R. Yoel’s following point more surprising. His other argument is that, since the original reason of the takkanah (decree) is to prevent people from confusing hamets with non-hamets, one should refrain from consuming cakes and the like which closely resemble hamets, even if they do not contain rice or legumes. (These foods have a major market, both in Israel and in huts la-arets.) In other words, R. Yoel ignores the formal categories usually made of kitniyot and non-kitniyot foods, focusing instead on the practical categories used when the law was instituted in the first place: food that can be confused with hamets and food that cannot be confused with hamets – and applying it to today’s reality. Thus, the original intention behind the law is preferred to its practical application.
This reliance on the original reason for the law and not the technical details that developed over time, especially when they do not fit the original purpose, is part of a broader idea in R. Yoel’s halakhic philosophy that values making Halakhah applicable and realistic to our generation. One particularly striking application of this philosophy is how he views the law of sof zeman keri’at Shema (the latest time to recite the Shema). The Mishnah says that those who are obligated in reading Shema daily can do so until the third hour of the day because that is when princes, the latest risers, awake. R. Yoel claims (it is unclear if he is claiming what the halakhah should be or what it is and whether he advises this in practice) that in our day, when it is standard for people to awake even later, the time period for saying Shema should be later. He sees the law as not mandating specifically the third hour, but as representing the realistic time when people tend to awake.
Another significant example of this approach appears in R. Yoel’s suggested valuation of a ketubbah agreement. In an article he wrote on this topic, he presents several different monetary sums at which the ketubbah is generally valued.. They are based on the value of silver in our time and compared to the Gemara’s value of ketubbah (200 zuz plus tosefet ketubbah [additional and technically optional though universally given ketubbah money]), and are mostly in the range of 2,500 shekel. He rejects these positions (favoring the last, though) on the basis of several conceptual errors he claims were made in calculating these values. His primary argument is that these sums are not sufficient to accomplish the purpose of ketubbah, which is to provide financial stability for the kallah (bride) in the event of divorce or her husband’s death, and he therefore proposes a vastly different model. R. Yoel connects the 200 zuz necessary for a ketubbah to the Mishnah in Pe’ah (8:8) that defines 200 zuz as the average yearly income, and he calculates, including tosefet and nedunya (standard dowry), that a standard contemporary ketubbah should be about 50,000 shekel today. In other words, he ignores the formalistic method of calculating and instead relies on the principle of supplying the kallah with a livelihood in the event of divorce or her husband’s death. Interestingly, in a response to this piece, R. Gideon Binyamin argues:
“It is important to remember in general that even though this or that takkanah of Hazal has a specific reason, once Hazal instituted and defined (higdiru) it, we do not any longer consider the reason of the institution, but we relate to it as it was defined by Hazal.”
This comment fairly represents the consensus view of most posekim, but it is on this very principle that R. Yoel argues. He does not see the halakhic system as based on Hazal-mandated details, but rather on the principles that motivated them, and thus he feels comfortable not following the standard practice and going instead in directions of his own.
In keeping with his view that the halakhic system has to be relevant to any time, R. Yoel not only has different halakhic positions on classic halakhic issues (such as the ones discussed above), but at times he also creates novel halakhic categories.
One example of R. Yoel’s preference for reality-based and non-formalistic understandings of halakhot manifests itself in his article, “The Obligation of Aliyyah to Erets Yisrael and the Prohibition against Leaving Erets
Yisrael in Our Time.” While many who approach this case argue for a formal rule – that one must live within certain borders formally recognized as Erets Yisrael from some period of previous conquest or historical return, or that one is prohibited from leaving Israel under any circumstance, R. Yoel takes a decidedly real-world stance. Based on Rambam’s formulation, he considers the Land of Israel (at least for these purposes) to be land under “Jewish sovereignty within the borders of historical Erets Yisrael.” This formulation is reflective of the current reality because, at least in our time, it only includes the state of Israel and is not based upon conquests from thousands of years ago. R. Yoel takes this realistic approach a step further and says that exceptions can be made in multiple circumstances, given that the law of leaving Erets Yisrael is not a formalistic one. For R. Yoel, the most important thing is that one hold an Israeli passport and leaves Israel as a tourist, demonstrating identification with the Jewish state, and, if that is the case, then he may travel wherever he wishes for whatever (temporary) period of time. Aside from the shocking application of passports as a halakhic category, this opinion is significant because it fits with the reality of the time. The law against leaving Israel is not technical, but it is rather one of identity, that one should identify oneself with the Jewish state and not ignore the charge of being a citizen of the Jewish people and its nation, Israel. In this regard, R. Yoel connects this fact with the point that some characters in Tanakh are punished and/or reprimanded while others are unscathed in their different departures from Erets Yisrael, based on whether they viewed themselves as citizens of Israel or not. This reflects R. Yoel’s affinity for using Tanakh in the context of Halakhah, which is a significant factor in his pesak, but it is one that must be further explored.
In concert with the above discussion, a clear principle that is reflected in R. Yoel’s work, as in the works of many Israeli posekim, is the goal of making Halakhah practical for contemporary society.
For instance, posekim such as R. Shlomo Goren and R. Shaul Yisraeli attempted to establish a pragmatic halakhic system for a newly-independent Jewish society in Israel where no such society with its own halakhic system had existed for hundreds of years. However, R. Yoel, while party to this approach, has by no means limited himself in adopting this accomodationist approach. While calling for a pragmatic Halakhah that people will be able to observe, R. Yoel simultaneously strives, as much as possible, to preserve the values and spirit of the original law, despite the constraints against fulfilling it in its classical sense. His dual goal concerning Halakhah in general is apparent in some of his opinions on the nexus between public policy and Halakhah. For example, he advances leaving movie theatres open on Shabbat in Israel, not only because alternate approaches would never pass in the Knesset and Israeli society as a whole, but also because he feels that the spirit of Shabbat is not impinged by having hillonim (secular Israelis) watch movies, and, in fact, such a phenomenon could even promote an experience of relaxation that is in the spirit of Shabbat, despite the fact that it might technically oppose Halakhah. For similar reasons, he supports (after using the hetter mekhirah [a halakhic loophole involving selling the land of Israel so that shemittah laws do not apply] to circumvent technical halakhic problems during the shemittah year) a reworked shemittah where, instead of having one year in which all farmers do not work their fields, each farmer, as well as every worker, takes his own year of sabbatical from work for the purposes of some spiritual endeavor every seven years. This not only allows the Israeli economy to function without shutting down every seven years (and gets around technical problems with hetter
mekhirah), but it also provides each farmer with an experience similar to that of shemittah. Thus, R. Yoel both follows the standard Israeli approach of using ha’aramot (circumvention through legal fictions) to make Halakhah relevant to contemporary Israeli society, while at the same time preserving the spirit of the law as much as possible under mitigating circumstances.
Another principle inherent in R. Yoel’s approach is that of halakhic self-determination. One area where this applies is to minority subgroups within Kelal Yisrael. R. Yoel, though he does have specific opinions about women’s issues (which are controversial), has stated that he feels that women’s halakhic issues should be decided by women. I believe this attitude is related to a story he likes to tell about the first time he got tsitsit custom-made for his suit, which is colored. He relates that he was asked whether he would like to have the non-tekhelet strings be white, like the opinion of Rema, or the color of his suit, as Rambam rules. (There is no accepted minhag on the issue because wearing tsitsit on clothes is a rare practice.) Upon telling this story (he chose white), he marveled at the fact that this was a situation where he could choose what he wanted and the halakhah was not dictated for him by earlier decisors and traditions, as is usually the case. Thus, R. Yoel, both for women and for halakhic situations with no clear mandate, reveals a certain preference for situations where one has the leeway to choose his or her own halakhic observance (within the traditional halakhic system), or halakhic self-determination.
This preliminary piece has explored some of R. Yoel’s views on Halakhah, most significantly his focus on the original reasons for the laws and their applications in our society, and not on some formalistic system of Halakhah. This principle can be applied in different areas of Halakhah, and the manifestations of this principle can be intriguing, to say the least. At times, he creates new halakhic categories (carrying a passport) as a result of this approach. [He also has an affinity for self-determination of halakhic rules, when applicable, and also returns to Tanakh texts in the deciding of Halakhah.] Though this anti-formalistic understanding of Halakhah does not have too many adherents and it is, to some degree, a departure from standard pesak, R. Yoel’s presentation of the halakhic system definitely raises the profile of original reasons within the halakhic process, raising questions for us about how Halakhah truly works.
Shlomo Zuckier is a senior at YC majoring in Philosophy and Jewish Studies and is an Associate Editor for Kol Hamevaser.