An Interview with Rabbi Hershel Schachter
BY: Staff
Who is qualified to give a pesak Halakhah (halakhic ruling)? What makes his ruling binding upon a large group of people?
To give an original pesak on a new she’eilah (halachic question) or a hachra’ah (decision) on an old machalokes is not easy. A person has to have a strong tradition in Torah logic. Common sense has its own system of logic and so does Halachah. And to know Talmudic, halachic logic, you have to be learned in all areas of Torah. A posek cannot “specialize” in one area of Halachah alone. In order to be an expert in medical Halachah, you have to know Nashim, Nezikin, Kodashim, and Tohoros, because everything in Halachah is interconnected and interrelated.
Most rabbanim who have semichah are not qualified to issue an original pesak – not just on a new she’eilah that comes up, but even an old one where there are different opinions. If a person does not have the tradition of how to navigate and decide, he is simply not eligible to do so. The Gemara in Avodah Zarah (5a) says that you have to be 40 years old to paskn a halachic question, unless there is no other talmid chacham over the age of forty who is available. I once taught this in public, and Dr. Lamm got very upset with me, saying that we are not going to withhold every musmach‘s semichah until he is forty. I responded, though, that if a musmach is going to lead a community where there is no one else over the age of forty who is qualified to paskn, you have no bereirah (choice) and should grant him semichah. Otherwise, if he is going to live in New York, there are plenty of other talmidei chachamim over 40 available by telephone. In such a case, it is inappropriate for such a young musmach to paskn.
Sometimes, of course, it is an open-and-shut she’eilah. In such a situation of mar’eh makom ani lach (I am simply pointing you to a source), it would be appropriate for a person under 40 to paskn. However, in a lot of instances, it might, when looked at from a circumscribed, focused perspective, seem to be the exact same she’eilah, but because of some outside factors it in fact is not and you have to apply a different se’if (paragraph) when paskening. Oftentimes, because the world is changing so quickly, a question that once received one answer will today require a different one.
In terms of authority in pesak, the Chummash tells us that the pesakim of the Beis Din ha-Gadol (Great Court) are binding on everybody. I think the reason that they are binding is that the Beis Din ha-Gadol is not a political body, but is rather composed of the gedolei ha-dor (greatest men of the generation). As a result, its members have the status of rav muvhak (primary teacher) for the entirety of Kelal Yisrael, even if they have never met their talmidim, and the din is that the pesak of a rav muvhak is binding on his students. Similarly, the mara de-asra (local rabbinic authority) of a particular area is considered the rav muvhak of all of his balabatim, which gives his pesak a level of authority over them. If a person davens in a few shuls, he should listen to the pesakim of the person he considers his rav muvhak, who made him into a talmid chacham and a Torah personality.
Which characteristics should a person look for when choosing a personal/family posek? Is it appropriate to choose one posek for one area of Halakhah and another for a different area? Is it problematic, halakhically or otherwise, for someone to ask she’eilot to a rabbi other than the leader of his or her shul/kehillah?
The Mishnah says “aseh lecha rav“
– you have to pick a rav to paskn all of your she’eilos. He has to first and foremost be very knowledgeable. If I know that my rabbi is not so learned, even if he is a very nice person, I simply cannot rely on him to paskn.
Second, he has to be humble. The Gemara says that we paskn like the Beis Hillel against the Beis Shammai, because, among other reasons, the Beis Hillel were more humble than the Beis Shammai, and one who is more humble stands a better chance of succeeding in pesak. If one lacks humility, he will make up his mind in advance that he is going to stick to his opinion and will not be willing to listen to the facts or be open to changing his view. Conversely, a person who is humble is not going to insist that his muskal rishon (first impression) is correct, but will rather consider everything before him.
He also has to be an honest person. Sometimes you have a rabbi who is a politician and says one thing to one person and another thing to a different person, giving everyone the answer that he wants to hear. That is obviously inappropriate.
Finally, he must be a yere Shamayim (God-fearer). The Gemara talks about why the pesakim of talmidei chachamim are binding and says that it is because “sod Hashem li-yere’av” – God gives the secrets of understanding the Torah to those who fear Him. Usually, we assume that the more learned one is, the more yir’as Shamayim he has. If, however, the rabbi of my choice is very learned but seems, unfortunately, to lack yir’as Shamayim, he is not ra’ui (worthy) to receive divine assistance in figuring out what the dinim are.
In picking a rabbi, then, you have to make sure he is very learned, humble, honest, and God-fearing, and then we assume that God will assist him and prevent him from making a mistake in pesak.
In terms of seeking out multiple posekim, the Chazon Ish writes that years ago there was one rabbi in each community who was an expert on everything; he was able to paskn, give
a pilpul shi’ur, and decipher difficult statements of the Rambam. The Noda bi-Yehudah [Rav Yechezkel Landau] is a good example of this model: he gave shi’urim to his talmidim, wrote teshuvos and paskened she’eilos, and delivered derashos (sermons)
to balabatim. Then, after the Industrial Revolution, when everything began to run according to a division of labor – this person made the right sleeves on the suit, the other one the left sleeves, and a third one the pockets – the same thing happened in the world of learning: one person became an expert in one area of Halachah and another an expert in a different area. We, too, have developed a division of labor. In fact, Rav Chayyim Ozer Grodzenski, when Rabbi Elie Munk asked him about the eruv in Paris, sent the she’eilah to the Chazon Ish in Bnei Brak, because he considered him an expert in eruvin. Similarly, when he had a question in Hilchos Mikva’os, he sent it to the Chazon Ish’s brother, who was considered an expert in that area. In every yeshivah today, you encounter the same thing: you have the Rosh Yeshivah who says the pilpul shi’ur and explains difficult statements of the Rambam, the posek who paskens the she’eilos, and the mashgiach who gives shi’urim on Hashkafah and emunah (faith).
This trend, however, is somewhat problematic, because each person has a different style and mahalach (method) in his machashavah and mode of pesak. No two people are exactly the same. Rav Chayyim Soloveitchik’s and Rav Velvele’s sefarim share much in common but are, in fact, very different stylistically. So if you are going to follow one person’s pesakim in mikva’os and another’s in eruvin, there may be contradictions in style that you do not notice as an outsider. Ideally, then, it is more correct to ask all of one’s she’eilos of the same person. But we live in a generation where we have divided up these roles among different religious figures. As a result, you should try to pick experts in each field of Halachah who have approximately the same style of learning so that you maintain some level of consistency.
Can you pick someone other than your local shul rabbi? Sometimes, you do not have a choice. The local rabbi is often a nice person who succeeds in maintaining peace and order in the shul. That, perhaps, is the main function of a rabbi today. The Avnei Nezer has a teshuvah in which he quotes the pasuk in Mishlei (29:4), “Melech be-mishpat ya’amid erets” (A king sustains the land through justice), and explains that just as the role of the government is to keep law and order, so, too, the role of the rabbi is not so much to paskn she’eilos – the majority of which have been worked out already in Shulchan Aruch – but rather to maintain peace in his community. So sometimes your local Orthodox rabbi does an excellent job of leading his kehillah but is not so strong in Halachah, and in that case it does not make sense to ask your she’eilos of him, since that is not really his expertise. In Europe, they used to have a rav and a dayyan (judge); the balabatim asked their she’eilos to the dayyan and the rav had other responsibilities.
What does it mean that koah de-hetteira adif (the power of permissibility is greater) and how does one apply that rule? How does this principle accord with concepts like ha-mahamir, tavo alav berakhah (blessing should descend upon the stringent) and yere Shamayim yetse yedei sheneihem (a God-fearer tries to fulfill both)? When, if ever, is it a good idea to take upon oneself a personal humra (stricture)?
Koach de-hetteira adif in the original context in the beginning of Beitsah (2b) only means that if you are a Tanna composing Mishnayos or Beraisos and you can present a din or machalokes
ha-Tanna’im in two ways, one of which will emphasize a chiddush lehachamir (a novel stringency) and the other of which will emphasize a chiddush lehakel (a novel leniency), it is preferable to do the latter, because, Rashi explains, anyone can be machamir. You do not have to be so knowledgeable to be machamir, but to be meikel, you really need to know how to learn in order to ensure that your kulla is correct.
In the works of the Acharonim, though, this expression has changed and is used when a posek thinks that the tsad hetter (lenient side) in a case is stronger than the tsad issur (prohibited side). A lot of times, a she’eilah that comes up is not so straightforward and easy, because there are different opinions on the matter. So when a moreh hora’ah (halachic decisor) wants to be meikel in a particular case, he will use that expression to justify doing so. But it is still just an expression; I do not think it is a halachah or a din. It is a din, though, that you are not allowed to be machamir unnecessarily, because doing so causes a hefsed mamon Yisrael (a financial loss to a Jew). Why should you tell someone to throw out something which is perfectly kosher? If it is muttar, it is muttar. In the Viddui (Confessional) quoted from Rabbeinu Nissim Gaon which is recited on Yom Kippur, we say that we made mistakes in both directions – things that were asur we treated as muttar, and things that were muttar we treated as asur.
The concept of ha-machamir, tavo alav berachah appears in Tosafos. It was also a policy of the Chasidei Ashkenaz that developed over the course of many years. The attitude was that while me-ikkar ha-din (strictly speaking), we know that we paskn according to the meikel opinion in a particular machalokes, we should really treat every machalokes as if it were a safek what the din should be. That attitude was then combined with the teaching of the Midrash, based on the pasuk in Koheles 7:18, that “yere E-lohim yetse es kullam” – zeh Rabbi Abbahu be-Kisrei (“a God-fearer fulfills them all” – this refers to Rabbi Abbahu in Caesarea). Rabbi Abbahu was the one who made the takkanah (edict) to blow all the possible combinations of shofar blasts on Rosh ha-Shanah – tasha”t, tara”t, and tashra”t – because he was not sure what the correct teru’ah sound should be, and so the Chasidei Ashkenaz towards the end of the period of the Ba’alei ha-Tosafos adopted the view that everyone should try to be machamir and satisfy the opinions of all the posekim on a given topic.
The Mishnah Berurah then picked up on that idea and took it further. The truth is that the Mishnah Berurah is really more appropriate for benei ha-yeshivah and not for balabatim, since yeshivah bachurim usually have the luxury of being machamir, whereas balabatim generally do not. They used to quote in the name of Rav Henkin that the Mishnah Berurah is meant for yeshivah bachurim while the Aruch ha-Shulchan is more for balabatim, because the Aruch ha-Shulchan is often noteh le-hakel (tends more to be lenient).
Still, if a ben yeshivah is lacking in the basics, it does not make sense to be machamir like the Mishnah Berurah. We simply do not recommend chumros for anybody and everybody. They were known as Chasidei Ashkenaz for a reason – they were tsaddikim who tried to observe all the dinim and then some.
I have heard that Rabbi Yehuda Amital would often comment that when he learned in yeshivah as a teenager, they would study Mishnah Berurah, and whenever they would arrive at the words “ba’al nefesh yachamir” (an ambitious person should be stringent), they would say that that phrase refers to someone else – not them. But now, he observed, every bachur in the yeshivah thinks that he is the ba’al nefesh. Who says that you are on the madregah (level) of a yere Shamayim? Maybe after you get married and become known as a medakdek be-mitsvos (scrupulous person in mitsvah observance) – maybe then you will fall under that category. A lot of times, people accept upon themselves chumros when they are not on the madregah to observe them. Chumros are like jewelry, something extra that you take on in order to enhance your avodas Hashem (service of God). If you are not yet keeping the basic dinim, adopting a chumra is like a woman who is wearing pajamas putting on a piece of jewelry – it does not enhance her good looks. If she is wearing a nice dress or suit and puts on jewelry, that is one thing; otherwise, the jewelry is out of place.
It should be noted that one who is in a position of leadership is supposed to be machamir. The Rambam in the end of Hilchos Melachim (5:9) says that you are not allowed to leave Erets Yisrael unless there is a real famine there. However, he notes, even in that situation it is a middas chasidus (sign of piety) not to do so, as we learn from Megillas Rus, in which Elimelech, Machlon, and Kilyon were punished, the Gemara says, for having left the land, even though there was a famine at the time. The reason is that they were the gedolei ha-dor – Rashi translates the word “Efrasim” to mean “chashuvim” (important people) – and should have been machamir to stay. They were looked up to and were the leaders of the community, so we learn from them that the rabbanim are supposed to be machamir whenever possible. Balabatim generally think they can observe ten levels lower than the rabbi does, so if the rabbi is just following the ikkar ha-din, it will turn out to be a problem. The rabbi has to grow into his position and act like a ba’al nefesh and a yere Shamayim, even if he is not fully on that level yet. The phrase “adam chashuv shanei” (an important person is different) appears throughout the Gemara precisely for this reason.
Does Halakhah change over time and, if so, in what ways? When, if ever, are halakhic innovations acceptable?
Halachah does not change over time. We believe “ani Hashem lo shanisi” (I am Hashem, I have not changed). Because the essence of God does not change, and we assume that the Torah is a description of E-lohus (Godliness), Halachah cannot change either. However, the world around us is ever-changing, and because of that, the way Halachah is practiced today is not exactly the same as it was one hundred years ago, fifty years ago, or even yesterday. There are so many changes taking place and the slightest one makes for a new she’eilah. In almost every siman in Shulchan Aruch, you have many se’ifim, not just one, so that under different conditions, you follow a different se’if. Every she’eilah has to be taken within the historical context in which it comes up and with the proper perspective. So the application of Halachah changes, even as Halachah itself does not.
In my introduction to Erets ha-Tsevi, I give the mashal (example) that Avraham Avinu, when there was a famine, left Erets Yisrael for Mitsrayim. Then, in the days of Yitschak, there was another famine, so he thought to go to Mitsrayim also. Yitschak was known for following the traditions of his father – he dug the same wells as his father had and gave them the same names, etc. So the Zohar, quoted by Ha-Kesav ve-ha-Kabbalah, comments that Yitschak followed the whole masorah (tradition) of his father, and wanted to continue doing so by leaving for Egypt, but then the Ribbono shel Olam told him no – you are an olah temimah (a perfect offering) brought on the mizbeach (altar); you are not allowed to leave for Chuts la-Arets. He thought he was doing exactly the same thing as his father by deciding to leave, but Hashem informed him that the circumstances had changed.
Similarly, the Gemara tells us that Moshe Rabbeinu made many charamim (bans) on cities Benei Yisrael fought against, so Yehoshua bin Nun made a cherem on Yericho thinking that he was doing the exact same thing as his rebbe had. The Ribbono shel Olam got angry with him for having done so, though, because the circumstances had changed: Moshe Rabbeinu made his charamim before Benei Yisrael crossed the Yarden, so there was no din of kol Yisrael arevim zeh ba-zeh (every Jew is mutually responsible for the next); Yehoshua, though, made his cherem after that din took effect, so all of Benei Yisrael would be responsible for the sins of those like Achan who violated the cherem, potentially endangering them all. He simply did not realize that he was living in a different generation and the she’eilah was a different she’eilah.
Oftentimes, people will say, “My father belonged to the Agudah, so I belong to the Agudah; my father belonged to the Mizrachi, so I belong to the Mizrachi,” without taking into consideration that today everything is totally different: that was before Hakkamas ha-Medinah (the establishment of the State) and before Milchemet Sheshet ha-Yamim (the Six Day War)! The Agudah today is not necessarily the same as the Agudah of 50 years ago. Everything is changing in the world. Halachah does not change but its application does.
In terms of innovation, Halachah always has room for chiddush. The Yalkut Shim’oni comments on the pasuk in Shiras Devorah, “Yivchar E-lohim chadashim” (Hashem chooses new things), that Hashem cherishes chiddushei Torah (Torah novella). However, we do not allow shinnuyim (changes). You need to be a big talmid chacham to know what is considered a shinnui and what is considered a chiddush. Rav Moshe Feinstein is kullo chiddush (completely novel) – every teshuvah has a chiddush, and there is what to argue on in each case. But he is still working within the system of Halachah: he is using principles in the Gemara in order to change the application of Halachah, because he thinks that is what is necessary in our changing circumstances.
What effect, if any, does scholarly research and manuscript use have on Halakhah? What effect, if any, does the discovery of new commentaries and hiddushim by Rishonim have on the halakhic process?
Manuscript use is very important. We have to find out what the proper text is supposed to be. The Rema usually follows the opinions of Tosafos for Ashkenazim, but a lot of times there are gaps in Tosafos’ comments with words or even whole sentences missing that change the meaning entirely. In Avodah Zarah, for example, it is obvious that there are four whole lines missing in one Tosafos. Only if you look in the kisvei yad (manuscripts) and parallel sources, like the Or Zarua, Tosafos Rabbeinu Elchanan, and Tosefei ha-Rosh, do you realize that they got lost in transmission. We live in a generation when we have the original versions of all of these texts and that helps a lot.
The Seridei Esh has an essay in which he encourages everyone to use the Tosefei ha-Rosh and Tosafos Rabbeinu Elchanan because doing so helps a person understand the comments of Tosafos. Today, that goes without saying, but if you lived 60 years ago, it was a big chiddush for him to have said that, because the attitude was that these sources were irrelevant. For example, Rav Moshe has a couple of teshuvos in which he says his own peshat in Tosafos and notes that even though the Tosefei ha-Rosh explains differently, we do not have follow it. What do you mean? Tosefei ha-Rosh gives you the peshat in Tosafos! It is all very strange. So at the time that the Seridei Esh was writing, he was revolutionary and his contemporaries did not go along with him. Today, though, it is a davar pashut that one should look at the original set of the Ba’alei ha-Tosafos to make sure that one understands Tosafos properly.
Similarly, it is very important to know what scholarly research has to say about the words of the Gemara. A lot of times scholars can help explain what the metsi’us (realia) was at the time of the Gemara. If you do not know the metsi’us, you will be misapplying the dinim or misunderstanding the Halachah. This rule applies both lehachamir and lehakel – if we find out that the way we have been understanding the text all along is incorrect, it can change how we practice Halachah.
The discovery of new commentaries and Rishonim, however, is more complicated. The Mishnah Berurah used to always take these into consideration and, by doing so, reversed the pesak ha-mekubbal (accepted ruling) on almost every page of Shulchan Aruch (like the Vilna Gaon, he largely disregarded historic precedent). The reason he got away with it is that he was a holy tsaddik and a humble person. But the Chazon Ish was not happy about what the Mishnah Berurah had done – he thought Halachah had already been worked out. He felt that if you discover that there is a misprint in the Tosafos, that is one thing, but if you find new Rishonim besides Tosafos who say otherwise, that should not affect halachic practice – we have already decided to follow the Rishonim with which we have been familiar all these years.
Is it valid for modern societal values and movements, like freedom of speech, rationalism, egalitarianism, and nationalism, to affect halakhic decision-making and practice?
Of course they affect pesak. A posek cannot give a pesak ha-tamuah al ha-rabbim (a ruling which surprises the masses). You have to give a pesak that people can live with and take all of these things into consideration when doing so. Everything going on in the generation is part of the she’eilah. A she’eilah has to be considered from all of its perspectives and one of the many perspectives is how the pesak will be accepted by the public. So a posek has to be attuned to the needs and attitudes of his community.
A posek also has to be aware of the personal needs of the sho’el. If the posek knows that the person asking will not be able to follow a machamir
pesak and will get frustrated and give up on his Jewish observance, he cannot say that what he is asking for is absolutely asur. He has to show him that there are different positions in Halachah on the issue and remind him that by following the more lenient opinion he is still acting within the halachic framework. We believe that eilu va-eilu divrei E-lohim Chayyim (these and those are the words of the Living God) is a halachic principle and that bi-she’as ha-dechak (in extremis) you can rely on the shittah ha-mekilah (lenient opinion). You have to give a pesak that people can live with and so the entire social and historical context of the she’eilah must be taken into consideration.
How important is historical precedent in determining normative halakhic practice? When do we honor popular practice as halakhically justified?
Most posekim usually follow a tradition in pesak. If you find that a community follows a certain practice against what you think to be normative, it is nevertheless valid, as long as you can establish that the practice was properly instituted by rabbanim in earlier generations. If, however, you find that the community’s posek said something that does not make sense, you may not follow it, even if it has become the basis for traditional practice there.
Tosafos quotes the opinion of the Halachos Gedolos [Beha”g] that if you forget to count sefirah for one day, you should no longer continue to count with a berachah, but rejects it as completely incorrect. Nonetheless, because the Halachos Gedolos was from the tekufas ha-Ge’onim (Geonic period), we are choshesh (concerned) for his opinion and we continue counting on successive nights but without a berachah. Similarly, the Halachos Gedolos rules that a woman may not be motsi (cause to fulfill) a man in keri’as
ha-megillah (the reading of the megillah). So even though it seems that Tosafos disagrees with that position, the Shulchan Aruch says that out of deference for the Beha”g, we do not allow a woman to be motsi a man. If a person is stuck and no one else is around to help him fulfill his chiyyuv (obligation) other than a woman, then bottom line we paskn that a woman can be motsi him. But if someone in our generation decides that a woman can read the megillah for men even when men are available to read, that is considered a chutspah gedolah (an extreme form of audacity) – unless it is someone, like Rav Moshe, who is very humble and is so convinced that the pesak ha-mekubbal is wrong and will be mevi li-yedei kilkul (lead to mistakes) if it continues to be followed. In a lot of instances, Rav Moshe felt that way and actually reversed normative practice quite a bit, as did the Mishnah Berurah. But to do that, you have to be a humble person steeped in learning and so convinced that the din is with you that you cannot allow Halachah to be followed in any other way.
What qualifies a minhag as a minhag shetut (a foolish practice)?
The first Mishnah in Bava Basra discusses the required width of different types of walls built between neighboring properties and then concludes by saying “ha-kol ke-minhag ha-medinah” (everything follows local practice). Tosafos there quotes Rabbeinu Tam as saying that from the fact that the Mishnah had to specify widths of different types of walls and not just say “ha-kol ke-minhag ha-medinah,” we see that there are certain minhagim, minhagei shetus, that one is not supposed to observe. Similarly, in Rabbeinu Tam’s teshuvah, quoted by the Shiltei ha-Gibborim on the bottom of the Mordechai in Gittin, he says that the word “minhag” has the same letters as “Gehinnom,” showing that sometimes minhagim are ridiculous and lead you to Gehinnom. So a minhag shetus is any practice which has no kiyyum (fulfillment) in Halachah whatsoever.
In order for a minhag to be considered valid, it must be a minhag vasikin (a minhag established or approved generations ago by talmidei chachamim). That is how the Magen Avraham explains the minhag to klap (make noise) when you hear Haman’s name during the keri’as ha-megillah. Even though it interferes with the megillah reading, he says, the minhag is apparently a minhag vasikin and so we should follow it. On the other hand, the Rambam writes that making a kinyan suddar (symbolic act of acquisition) when appointing a shaliach (messenger) for mechiras chamets (selling of the chamets) makes no sense because you do not need a kinyan at all. As a result, the Chazon Ish thought it was a minhag shetus and never made such a kinyan. In every generation, you have to reassess whether the minhagim are proper or improper.
Is there a concept of minhag ha-makom (local practice) and lo titgodedu (do not create groups with different halakhic practices) in today’s Diaspora and Israeli Jewish communities?
We still have a concept of minhag ha-makom today. There are certainly places where they have long-standing minhagim that must be honored. The question that comes up, though, is how long does the minhag have to have been practiced for it to be considered minhag ha-makom? Rav Moshe has a teshuvah in which he recommends, like Rabbi Akiva Eiger, that one first recite the berachah of kores ha-beris (Who seals the covenant), drink the wine, and then say “kayyem es ha-yeled
ha-zeh…” (sustain this child…), even though the common minhag is to wait until the end to drink. His son asked him why he was changing the minhag, so Rav Moshe responded that every 50 years the practice switches back and forth and there really is no established minhag ha-makom. The truth is, though, that this answer is a bit surprising – would Rav Moshe require that a community be settled for a hundred years before it could establish a minhag ha-makom? The pashtus (simple understanding) is that minhag ha-makom, both in a shul and in a community, can be established in a couple years. I do not know why Rav Moshe does not think that 50 years is enough.
Regarding lo sisgodedu, Rav Ovadiah Yosef thinks that, regarding any halachic issue about which it is well known that there is a difference of opinion, there is no problem of lo sisgodedu. However, the pashtus in the Mishnah Berurah is not so. Everyone knows that half of the Jews in the world wear tefillin on Chol ha-Mo’ed and half do not. Nevertheless, the Mishnah Berurah quotes from the Artsos ha-Chayyim that you should not allow these two groups to davn together in the same shul; they should davn in different rooms. Otherwise, he notes, it looks like there are shtei Toros (two Torahs). I think most do not assume like Rav Ovadiah, and they hold that there is an issue of lo sisgodedu even nowadays.
How important is it for an individual to take on the minhagim of his/her spouse? Is it acceptable for a man to take on his wife’s minhagim?
The Shulchan Aruch writes in Yoreh De’ah 214, quoting the Ran to Nedarim 80b, that a minhag is binding mi-ta’am neder mi-de-Rabbanan (because it is Rabbinically considered a vow). In other words, aside from being bound by any nidrei ha-yachid (individual vows) a person makes, he is subject to the nedarim of the tsibbur (community) as well. But this latter category depends on which tsibbur he belongs to. Once a person moves to a different community, he is subject to that community’s minhagim, unless he intends to return home.
Usually, when a couple gets married, we assume that they become part of the same tsibbur. But who enters whose community? It depends. If the husband is a ba’al teshuvah (recently became religious) and the wife has a long-standing tradition of observance, we would assume that the husband enters the reshus (domain) of the wife. But if they are both observant and each has a strong family tradition, we usually say that the wife enters the husband’s reshus. Rav Moshe thinks that in such a case the wife does not even need a hattaras nedarim (annulment of vows), because she is no longer a member of the tsibbur in which she grew up.
How far, though, does that extend? If the husband davens
Nusach Ashkenaz and the wife Nusach
Sefarad, or if the husband waits six hours and the wife three hours before eating dairy after eating meat, is that a problem? Or does the rule of taking on the same minhagim only apply to things that they do together – like the minhag of refraining from gebroks (foods made with matsah meal) or kitniyos (legumes) on Pesach, which affects the meals they eat together? One might argue that they do not have to share private practices, like which nusach they use. At the same time, though, it is a little strange to say that with regard to eating kitniyos the wife belongs to one tsibbur and for davening to another. I would assume that she probably has to join the husband’s tsibbur completely and accept all of his minhagim.
The issue of minhagim is very murky and has not been clarified well. Rav Dovidl Karliner, in She’eilas David, has a long kunteres (exposition) on minhagim. I was once very eager to read it because it is such a major issue today, but afterward I came out unsatisfied; he did not really make anything clearer for me than it was before. Rav Moshe also does not tackle the whole issue systematically.
As students or community members who do not have the time or ability to fully devote to learning every area of Halakhah in-depth, should we focus on learning Halakhah from its biblical and Talmudic sources and study how it developed into modern practice or focus on practical Halakhah le-ma’aseh?
A person should first learn Halachah le-ma’aseh to know how to keep the mitsvos properly – ha-ma’aseh asher ya’asun – and only then focus on Gemaros like Bava Kamma and Eruvin and others which typically are not as relevant for day-to-day practice. In my opinion, learning the Kitsur Shulchan Aruch is the best way to get a grasp on Halachah le-ma’aseh. Unfortunately, it is a little bit out of style now. Years ago, it was one of the most popular sefarim in the Jewish community, especially among balabatim, and was reprinted many times over. I think there was a period of time in which it was printed more often than the Chummash!
It is important to ensure that the sefarim you are using for Halachah le-ma’aseh learning are up-to-date. Rav Benny Lau put out a Kitsur Shulchan Aruch for modern times with all the piskei Halachah that are relevant for Jews today. It is an important resource.
Is there any one area of halakhic observance that you think could be improved in the YU community? in the broader Modern Orthodox community?
We believe that learning Torah is supposed to lead to yir’as Shamayim because we believe that the Torah is a description of God, a “mashal ha-Kadmoni” (a parable for the Ancient One). Sometimes, boys in Yeshiva enjoy learning because it is fun and an intellectual delight. There is nothing wrong, of course, with enjoying one’s learning – the Eglei Tal writes that it is part of the mitsvah and even enhances the mitsvah if you enjoy the learning. But still, a person should realize that learning is not a game. The Torah is very serious and should not be studied purely as an intellectual pursuit. We have to realize that the Torah is supposed to have an influence on us and change us. We should not make up our minds about Judaism before looking at what it has to say. Rather, we should have a blank mind and let the Torah influence our views and hashkafos on issues. I feel that that attitude toward learning is a bit lacking in our yeshivah and should be worked on. You should enjoy the learning on an intellectual level, but it should also be done in such a way that it enhances your yir’as Shamayim and shemiras ha-mitsvos.
With regard to the rest of the community, the Gemara in Avodah Zarah (20b) quotes the Beraisa of Rabbi Pinchas ben Ya’ir that Torah learning leads to successive levels of heightened spirituality, even up to techiyyas ha-mesim (the ability to resuscitate the dead). Everything starts with limmud ha-Torah. I think we should encourage the broader Modern Orthodox community to try to set aside more time for learning. A person should make sure he goes through the Kitsur Shulchan Aruch to learn Halachah le-ma’aseh and when he graduates that, he can go on to learn Chayyei Adam. I would also suggest that people be ma’avir sidrah (go over the weekly Torah portion) every week with Chummash and Rashi and make sure to have a kevi’us (set time) of learning every day. The Modern Orthodox community is not interested in learning as much as it should be, I feel, and has to work to improve that.
Rabbi Hershel Schachter is a Rosh Yeshivah in MYP/RIETS, occupies YU’s Nathan and Vivian Fink Distinguished Professorial Chair in Talmud, and is the Rosh Kollel in RIETS’ Marcos and Adina Katz Kollel.
An Interview with Rabbi Hershel Schachter
An Interview with Rabbi Hershel Schachter
BY: Staff
Who is qualified to give a pesak Halakhah (halakhic ruling)? What makes his ruling binding upon a large group of people?
To give an original pesak on a new she’eilah (halachic question) or a hachra’ah (decision) on an old machalokes is not easy. A person has to have a strong tradition in Torah logic. Common sense has its own system of logic and so does Halachah. And to know Talmudic, halachic logic, you have to be learned in all areas of Torah. A posek cannot “specialize” in one area of Halachah alone. In order to be an expert in medical Halachah, you have to know Nashim, Nezikin, Kodashim, and Tohoros, because everything in Halachah is interconnected and interrelated.
Most rabbanim who have semichah are not qualified to issue an original pesak – not just on a new she’eilah that comes up, but even an old one where there are different opinions. If a person does not have the tradition of how to navigate and decide, he is simply not eligible to do so. The Gemara in Avodah Zarah (5a) says that you have to be 40 years old to paskn a halachic question, unless there is no other talmid chacham over the age of forty who is available. I once taught this in public, and Dr. Lamm got very upset with me, saying that we are not going to withhold every musmach‘s semichah until he is forty. I responded, though, that if a musmach is going to lead a community where there is no one else over the age of forty who is qualified to paskn, you have no bereirah (choice) and should grant him semichah. Otherwise, if he is going to live in New York, there are plenty of other talmidei chachamim over 40 available by telephone. In such a case, it is inappropriate for such a young musmach to paskn.
Sometimes, of course, it is an open-and-shut she’eilah. In such a situation of mar’eh makom ani lach (I am simply pointing you to a source), it would be appropriate for a person under 40 to paskn. However, in a lot of instances, it might, when looked at from a circumscribed, focused perspective, seem to be the exact same she’eilah, but because of some outside factors it in fact is not and you have to apply a different se’if (paragraph) when paskening. Oftentimes, because the world is changing so quickly, a question that once received one answer will today require a different one.
In terms of authority in pesak, the Chummash tells us that the pesakim of the Beis Din ha-Gadol (Great Court) are binding on everybody. I think the reason that they are binding is that the Beis Din ha-Gadol is not a political body, but is rather composed of the gedolei ha-dor (greatest men of the generation). As a result, its members have the status of rav muvhak (primary teacher) for the entirety of Kelal Yisrael, even if they have never met their talmidim, and the din is that the pesak of a rav muvhak is binding on his students. Similarly, the mara de-asra (local rabbinic authority) of a particular area is considered the rav muvhak of all of his balabatim, which gives his pesak a level of authority over them. If a person davens in a few shuls, he should listen to the pesakim of the person he considers his rav muvhak, who made him into a talmid chacham and a Torah personality.
Which characteristics should a person look for when choosing a personal/family posek? Is it appropriate to choose one posek for one area of Halakhah and another for a different area? Is it problematic, halakhically or otherwise, for someone to ask she’eilot to a rabbi other than the leader of his or her shul/kehillah?
The Mishnah says “aseh lecha rav“
– you have to pick a rav to paskn all of your she’eilos. He has to first and foremost be very knowledgeable. If I know that my rabbi is not so learned, even if he is a very nice person, I simply cannot rely on him to paskn.
Second, he has to be humble. The Gemara says that we paskn like the Beis Hillel against the Beis Shammai, because, among other reasons, the Beis Hillel were more humble than the Beis Shammai, and one who is more humble stands a better chance of succeeding in pesak. If one lacks humility, he will make up his mind in advance that he is going to stick to his opinion and will not be willing to listen to the facts or be open to changing his view. Conversely, a person who is humble is not going to insist that his muskal rishon (first impression) is correct, but will rather consider everything before him.
He also has to be an honest person. Sometimes you have a rabbi who is a politician and says one thing to one person and another thing to a different person, giving everyone the answer that he wants to hear. That is obviously inappropriate.
Finally, he must be a yere Shamayim (God-fearer). The Gemara talks about why the pesakim of talmidei chachamim are binding and says that it is because “sod Hashem li-yere’av” – God gives the secrets of understanding the Torah to those who fear Him. Usually, we assume that the more learned one is, the more yir’as Shamayim he has. If, however, the rabbi of my choice is very learned but seems, unfortunately, to lack yir’as Shamayim, he is not ra’ui (worthy) to receive divine assistance in figuring out what the dinim are.
In picking a rabbi, then, you have to make sure he is very learned, humble, honest, and God-fearing, and then we assume that God will assist him and prevent him from making a mistake in pesak.
In terms of seeking out multiple posekim, the Chazon Ish writes that years ago there was one rabbi in each community who was an expert on everything; he was able to paskn, give
a pilpul shi’ur, and decipher difficult statements of the Rambam. The Noda bi-Yehudah [Rav Yechezkel Landau] is a good example of this model: he gave shi’urim to his talmidim, wrote teshuvos and paskened she’eilos, and delivered derashos (sermons)
to balabatim. Then, after the Industrial Revolution, when everything began to run according to a division of labor – this person made the right sleeves on the suit, the other one the left sleeves, and a third one the pockets – the same thing happened in the world of learning: one person became an expert in one area of Halachah and another an expert in a different area. We, too, have developed a division of labor. In fact, Rav Chayyim Ozer Grodzenski, when Rabbi Elie Munk asked him about the eruv in Paris, sent the she’eilah to the Chazon Ish in Bnei Brak, because he considered him an expert in eruvin. Similarly, when he had a question in Hilchos Mikva’os, he sent it to the Chazon Ish’s brother, who was considered an expert in that area. In every yeshivah today, you encounter the same thing: you have the Rosh Yeshivah who says the pilpul shi’ur and explains difficult statements of the Rambam, the posek who paskens the she’eilos, and the mashgiach who gives shi’urim on Hashkafah and emunah (faith).
This trend, however, is somewhat problematic, because each person has a different style and mahalach (method) in his machashavah and mode of pesak. No two people are exactly the same. Rav Chayyim Soloveitchik’s and Rav Velvele’s sefarim share much in common but are, in fact, very different stylistically. So if you are going to follow one person’s pesakim in mikva’os and another’s in eruvin, there may be contradictions in style that you do not notice as an outsider. Ideally, then, it is more correct to ask all of one’s she’eilos of the same person. But we live in a generation where we have divided up these roles among different religious figures. As a result, you should try to pick experts in each field of Halachah who have approximately the same style of learning so that you maintain some level of consistency.
Can you pick someone other than your local shul rabbi? Sometimes, you do not have a choice. The local rabbi is often a nice person who succeeds in maintaining peace and order in the shul. That, perhaps, is the main function of a rabbi today. The Avnei Nezer has a teshuvah in which he quotes the pasuk in Mishlei (29:4), “Melech be-mishpat ya’amid erets” (A king sustains the land through justice), and explains that just as the role of the government is to keep law and order, so, too, the role of the rabbi is not so much to paskn she’eilos – the majority of which have been worked out already in Shulchan Aruch – but rather to maintain peace in his community. So sometimes your local Orthodox rabbi does an excellent job of leading his kehillah but is not so strong in Halachah, and in that case it does not make sense to ask your she’eilos of him, since that is not really his expertise. In Europe, they used to have a rav and a dayyan (judge); the balabatim asked their she’eilos to the dayyan and the rav had other responsibilities.
What does it mean that koah de-hetteira adif (the power of permissibility is greater) and how does one apply that rule? How does this principle accord with concepts like ha-mahamir, tavo alav berakhah (blessing should descend upon the stringent) and yere Shamayim yetse yedei sheneihem (a God-fearer tries to fulfill both)? When, if ever, is it a good idea to take upon oneself a personal humra (stricture)?
Koach de-hetteira adif in the original context in the beginning of Beitsah (2b) only means that if you are a Tanna composing Mishnayos or Beraisos and you can present a din or machalokes
ha-Tanna’im in two ways, one of which will emphasize a chiddush lehachamir (a novel stringency) and the other of which will emphasize a chiddush lehakel (a novel leniency), it is preferable to do the latter, because, Rashi explains, anyone can be machamir. You do not have to be so knowledgeable to be machamir, but to be meikel, you really need to know how to learn in order to ensure that your kulla is correct.
In the works of the Acharonim, though, this expression has changed and is used when a posek thinks that the tsad hetter (lenient side) in a case is stronger than the tsad issur (prohibited side). A lot of times, a she’eilah that comes up is not so straightforward and easy, because there are different opinions on the matter. So when a moreh hora’ah (halachic decisor) wants to be meikel in a particular case, he will use that expression to justify doing so. But it is still just an expression; I do not think it is a halachah or a din. It is a din, though, that you are not allowed to be machamir unnecessarily, because doing so causes a hefsed mamon Yisrael (a financial loss to a Jew). Why should you tell someone to throw out something which is perfectly kosher? If it is muttar, it is muttar. In the Viddui (Confessional) quoted from Rabbeinu Nissim Gaon which is recited on Yom Kippur, we say that we made mistakes in both directions – things that were asur we treated as muttar, and things that were muttar we treated as asur.
The concept of ha-machamir, tavo alav berachah appears in Tosafos. It was also a policy of the Chasidei Ashkenaz that developed over the course of many years. The attitude was that while me-ikkar ha-din (strictly speaking), we know that we paskn according to the meikel opinion in a particular machalokes, we should really treat every machalokes as if it were a safek what the din should be. That attitude was then combined with the teaching of the Midrash, based on the pasuk in Koheles 7:18, that “yere E-lohim yetse es kullam” – zeh Rabbi Abbahu be-Kisrei (“a God-fearer fulfills them all” – this refers to Rabbi Abbahu in Caesarea). Rabbi Abbahu was the one who made the takkanah (edict) to blow all the possible combinations of shofar blasts on Rosh ha-Shanah – tasha”t, tara”t, and tashra”t – because he was not sure what the correct teru’ah sound should be, and so the Chasidei Ashkenaz towards the end of the period of the Ba’alei ha-Tosafos adopted the view that everyone should try to be machamir and satisfy the opinions of all the posekim on a given topic.
The Mishnah Berurah then picked up on that idea and took it further. The truth is that the Mishnah Berurah is really more appropriate for benei ha-yeshivah and not for balabatim, since yeshivah bachurim usually have the luxury of being machamir, whereas balabatim generally do not. They used to quote in the name of Rav Henkin that the Mishnah Berurah is meant for yeshivah bachurim while the Aruch ha-Shulchan is more for balabatim, because the Aruch ha-Shulchan is often noteh le-hakel (tends more to be lenient).
Still, if a ben yeshivah is lacking in the basics, it does not make sense to be machamir like the Mishnah Berurah. We simply do not recommend chumros for anybody and everybody. They were known as Chasidei Ashkenaz for a reason – they were tsaddikim who tried to observe all the dinim and then some.
I have heard that Rabbi Yehuda Amital would often comment that when he learned in yeshivah as a teenager, they would study Mishnah Berurah, and whenever they would arrive at the words “ba’al nefesh yachamir” (an ambitious person should be stringent), they would say that that phrase refers to someone else – not them. But now, he observed, every bachur in the yeshivah thinks that he is the ba’al nefesh. Who says that you are on the madregah (level) of a yere Shamayim? Maybe after you get married and become known as a medakdek be-mitsvos (scrupulous person in mitsvah observance) – maybe then you will fall under that category. A lot of times, people accept upon themselves chumros when they are not on the madregah to observe them. Chumros are like jewelry, something extra that you take on in order to enhance your avodas Hashem (service of God). If you are not yet keeping the basic dinim, adopting a chumra is like a woman who is wearing pajamas putting on a piece of jewelry – it does not enhance her good looks. If she is wearing a nice dress or suit and puts on jewelry, that is one thing; otherwise, the jewelry is out of place.
It should be noted that one who is in a position of leadership is supposed to be machamir. The Rambam in the end of Hilchos Melachim (5:9) says that you are not allowed to leave Erets Yisrael unless there is a real famine there. However, he notes, even in that situation it is a middas chasidus (sign of piety) not to do so, as we learn from Megillas Rus, in which Elimelech, Machlon, and Kilyon were punished, the Gemara says, for having left the land, even though there was a famine at the time. The reason is that they were the gedolei ha-dor – Rashi translates the word “Efrasim” to mean “chashuvim” (important people) – and should have been machamir to stay. They were looked up to and were the leaders of the community, so we learn from them that the rabbanim are supposed to be machamir whenever possible. Balabatim generally think they can observe ten levels lower than the rabbi does, so if the rabbi is just following the ikkar ha-din, it will turn out to be a problem. The rabbi has to grow into his position and act like a ba’al nefesh and a yere Shamayim, even if he is not fully on that level yet. The phrase “adam chashuv shanei” (an important person is different) appears throughout the Gemara precisely for this reason.
Does Halakhah change over time and, if so, in what ways? When, if ever, are halakhic innovations acceptable?
Halachah does not change over time. We believe “ani Hashem lo shanisi” (I am Hashem, I have not changed). Because the essence of God does not change, and we assume that the Torah is a description of E-lohus (Godliness), Halachah cannot change either. However, the world around us is ever-changing, and because of that, the way Halachah is practiced today is not exactly the same as it was one hundred years ago, fifty years ago, or even yesterday. There are so many changes taking place and the slightest one makes for a new she’eilah. In almost every siman in Shulchan Aruch, you have many se’ifim, not just one, so that under different conditions, you follow a different se’if. Every she’eilah has to be taken within the historical context in which it comes up and with the proper perspective. So the application of Halachah changes, even as Halachah itself does not.
In my introduction to Erets ha-Tsevi, I give the mashal (example) that Avraham Avinu, when there was a famine, left Erets Yisrael for Mitsrayim. Then, in the days of Yitschak, there was another famine, so he thought to go to Mitsrayim also. Yitschak was known for following the traditions of his father – he dug the same wells as his father had and gave them the same names, etc. So the Zohar, quoted by Ha-Kesav ve-ha-Kabbalah, comments that Yitschak followed the whole masorah (tradition) of his father, and wanted to continue doing so by leaving for Egypt, but then the Ribbono shel Olam told him no – you are an olah temimah (a perfect offering) brought on the mizbeach (altar); you are not allowed to leave for Chuts la-Arets. He thought he was doing exactly the same thing as his father by deciding to leave, but Hashem informed him that the circumstances had changed.
Similarly, the Gemara tells us that Moshe Rabbeinu made many charamim (bans) on cities Benei Yisrael fought against, so Yehoshua bin Nun made a cherem on Yericho thinking that he was doing the exact same thing as his rebbe had. The Ribbono shel Olam got angry with him for having done so, though, because the circumstances had changed: Moshe Rabbeinu made his charamim before Benei Yisrael crossed the Yarden, so there was no din of kol Yisrael arevim zeh ba-zeh (every Jew is mutually responsible for the next); Yehoshua, though, made his cherem after that din took effect, so all of Benei Yisrael would be responsible for the sins of those like Achan who violated the cherem, potentially endangering them all. He simply did not realize that he was living in a different generation and the she’eilah was a different she’eilah.
Oftentimes, people will say, “My father belonged to the Agudah, so I belong to the Agudah; my father belonged to the Mizrachi, so I belong to the Mizrachi,” without taking into consideration that today everything is totally different: that was before Hakkamas ha-Medinah (the establishment of the State) and before Milchemet Sheshet ha-Yamim (the Six Day War)! The Agudah today is not necessarily the same as the Agudah of 50 years ago. Everything is changing in the world. Halachah does not change but its application does.
In terms of innovation, Halachah always has room for chiddush. The Yalkut Shim’oni comments on the pasuk in Shiras Devorah, “Yivchar E-lohim chadashim” (Hashem chooses new things), that Hashem cherishes chiddushei Torah (Torah novella). However, we do not allow shinnuyim (changes). You need to be a big talmid chacham to know what is considered a shinnui and what is considered a chiddush. Rav Moshe Feinstein is kullo chiddush (completely novel) – every teshuvah has a chiddush, and there is what to argue on in each case. But he is still working within the system of Halachah: he is using principles in the Gemara in order to change the application of Halachah, because he thinks that is what is necessary in our changing circumstances.
What effect, if any, does scholarly research and manuscript use have on Halakhah? What effect, if any, does the discovery of new commentaries and hiddushim by Rishonim have on the halakhic process?
Manuscript use is very important. We have to find out what the proper text is supposed to be. The Rema usually follows the opinions of Tosafos for Ashkenazim, but a lot of times there are gaps in Tosafos’ comments with words or even whole sentences missing that change the meaning entirely. In Avodah Zarah, for example, it is obvious that there are four whole lines missing in one Tosafos. Only if you look in the kisvei yad (manuscripts) and parallel sources, like the Or Zarua, Tosafos Rabbeinu Elchanan, and Tosefei ha-Rosh, do you realize that they got lost in transmission. We live in a generation when we have the original versions of all of these texts and that helps a lot.
The Seridei Esh has an essay in which he encourages everyone to use the Tosefei ha-Rosh and Tosafos Rabbeinu Elchanan because doing so helps a person understand the comments of Tosafos. Today, that goes without saying, but if you lived 60 years ago, it was a big chiddush for him to have said that, because the attitude was that these sources were irrelevant. For example, Rav Moshe has a couple of teshuvos in which he says his own peshat in Tosafos and notes that even though the Tosefei ha-Rosh explains differently, we do not have follow it. What do you mean? Tosefei ha-Rosh gives you the peshat in Tosafos! It is all very strange. So at the time that the Seridei Esh was writing, he was revolutionary and his contemporaries did not go along with him. Today, though, it is a davar pashut that one should look at the original set of the Ba’alei ha-Tosafos to make sure that one understands Tosafos properly.
Similarly, it is very important to know what scholarly research has to say about the words of the Gemara. A lot of times scholars can help explain what the metsi’us (realia) was at the time of the Gemara. If you do not know the metsi’us, you will be misapplying the dinim or misunderstanding the Halachah. This rule applies both lehachamir and lehakel – if we find out that the way we have been understanding the text all along is incorrect, it can change how we practice Halachah.
The discovery of new commentaries and Rishonim, however, is more complicated. The Mishnah Berurah used to always take these into consideration and, by doing so, reversed the pesak ha-mekubbal (accepted ruling) on almost every page of Shulchan Aruch (like the Vilna Gaon, he largely disregarded historic precedent). The reason he got away with it is that he was a holy tsaddik and a humble person. But the Chazon Ish was not happy about what the Mishnah Berurah had done – he thought Halachah had already been worked out. He felt that if you discover that there is a misprint in the Tosafos, that is one thing, but if you find new Rishonim besides Tosafos who say otherwise, that should not affect halachic practice – we have already decided to follow the Rishonim with which we have been familiar all these years.
Is it valid for modern societal values and movements, like freedom of speech, rationalism, egalitarianism, and nationalism, to affect halakhic decision-making and practice?
Of course they affect pesak. A posek cannot give a pesak ha-tamuah al ha-rabbim (a ruling which surprises the masses). You have to give a pesak that people can live with and take all of these things into consideration when doing so. Everything going on in the generation is part of the she’eilah. A she’eilah has to be considered from all of its perspectives and one of the many perspectives is how the pesak will be accepted by the public. So a posek has to be attuned to the needs and attitudes of his community.
A posek also has to be aware of the personal needs of the sho’el. If the posek knows that the person asking will not be able to follow a machamir
pesak and will get frustrated and give up on his Jewish observance, he cannot say that what he is asking for is absolutely asur. He has to show him that there are different positions in Halachah on the issue and remind him that by following the more lenient opinion he is still acting within the halachic framework. We believe that eilu va-eilu divrei E-lohim Chayyim (these and those are the words of the Living God) is a halachic principle and that bi-she’as ha-dechak (in extremis) you can rely on the shittah ha-mekilah (lenient opinion). You have to give a pesak that people can live with and so the entire social and historical context of the she’eilah must be taken into consideration.
How important is historical precedent in determining normative halakhic practice? When do we honor popular practice as halakhically justified?
Most posekim usually follow a tradition in pesak. If you find that a community follows a certain practice against what you think to be normative, it is nevertheless valid, as long as you can establish that the practice was properly instituted by rabbanim in earlier generations. If, however, you find that the community’s posek said something that does not make sense, you may not follow it, even if it has become the basis for traditional practice there.
Tosafos quotes the opinion of the Halachos Gedolos [Beha”g] that if you forget to count sefirah for one day, you should no longer continue to count with a berachah, but rejects it as completely incorrect. Nonetheless, because the Halachos Gedolos was from the tekufas ha-Ge’onim (Geonic period), we are choshesh (concerned) for his opinion and we continue counting on successive nights but without a berachah. Similarly, the Halachos Gedolos rules that a woman may not be motsi (cause to fulfill) a man in keri’as
ha-megillah (the reading of the megillah). So even though it seems that Tosafos disagrees with that position, the Shulchan Aruch says that out of deference for the Beha”g, we do not allow a woman to be motsi a man. If a person is stuck and no one else is around to help him fulfill his chiyyuv (obligation) other than a woman, then bottom line we paskn that a woman can be motsi him. But if someone in our generation decides that a woman can read the megillah for men even when men are available to read, that is considered a chutspah gedolah (an extreme form of audacity) – unless it is someone, like Rav Moshe, who is very humble and is so convinced that the pesak ha-mekubbal is wrong and will be mevi li-yedei kilkul (lead to mistakes) if it continues to be followed. In a lot of instances, Rav Moshe felt that way and actually reversed normative practice quite a bit, as did the Mishnah Berurah. But to do that, you have to be a humble person steeped in learning and so convinced that the din is with you that you cannot allow Halachah to be followed in any other way.
What qualifies a minhag as a minhag shetut (a foolish practice)?
The first Mishnah in Bava Basra discusses the required width of different types of walls built between neighboring properties and then concludes by saying “ha-kol ke-minhag ha-medinah” (everything follows local practice). Tosafos there quotes Rabbeinu Tam as saying that from the fact that the Mishnah had to specify widths of different types of walls and not just say “ha-kol ke-minhag ha-medinah,” we see that there are certain minhagim, minhagei shetus, that one is not supposed to observe. Similarly, in Rabbeinu Tam’s teshuvah, quoted by the Shiltei ha-Gibborim on the bottom of the Mordechai in Gittin, he says that the word “minhag” has the same letters as “Gehinnom,” showing that sometimes minhagim are ridiculous and lead you to Gehinnom. So a minhag shetus is any practice which has no kiyyum (fulfillment) in Halachah whatsoever.
In order for a minhag to be considered valid, it must be a minhag vasikin (a minhag established or approved generations ago by talmidei chachamim). That is how the Magen Avraham explains the minhag to klap (make noise) when you hear Haman’s name during the keri’as ha-megillah. Even though it interferes with the megillah reading, he says, the minhag is apparently a minhag vasikin and so we should follow it. On the other hand, the Rambam writes that making a kinyan suddar (symbolic act of acquisition) when appointing a shaliach (messenger) for mechiras chamets (selling of the chamets) makes no sense because you do not need a kinyan at all. As a result, the Chazon Ish thought it was a minhag shetus and never made such a kinyan. In every generation, you have to reassess whether the minhagim are proper or improper.
Is there a concept of minhag ha-makom (local practice) and lo titgodedu (do not create groups with different halakhic practices) in today’s Diaspora and Israeli Jewish communities?
We still have a concept of minhag ha-makom today. There are certainly places where they have long-standing minhagim that must be honored. The question that comes up, though, is how long does the minhag have to have been practiced for it to be considered minhag ha-makom? Rav Moshe has a teshuvah in which he recommends, like Rabbi Akiva Eiger, that one first recite the berachah of kores ha-beris (Who seals the covenant), drink the wine, and then say “kayyem es ha-yeled
ha-zeh…” (sustain this child…), even though the common minhag is to wait until the end to drink. His son asked him why he was changing the minhag, so Rav Moshe responded that every 50 years the practice switches back and forth and there really is no established minhag ha-makom. The truth is, though, that this answer is a bit surprising – would Rav Moshe require that a community be settled for a hundred years before it could establish a minhag ha-makom? The pashtus (simple understanding) is that minhag ha-makom, both in a shul and in a community, can be established in a couple years. I do not know why Rav Moshe does not think that 50 years is enough.
Regarding lo sisgodedu, Rav Ovadiah Yosef thinks that, regarding any halachic issue about which it is well known that there is a difference of opinion, there is no problem of lo sisgodedu. However, the pashtus in the Mishnah Berurah is not so. Everyone knows that half of the Jews in the world wear tefillin on Chol ha-Mo’ed and half do not. Nevertheless, the Mishnah Berurah quotes from the Artsos ha-Chayyim that you should not allow these two groups to davn together in the same shul; they should davn in different rooms. Otherwise, he notes, it looks like there are shtei Toros (two Torahs). I think most do not assume like Rav Ovadiah, and they hold that there is an issue of lo sisgodedu even nowadays.
How important is it for an individual to take on the minhagim of his/her spouse? Is it acceptable for a man to take on his wife’s minhagim?
The Shulchan Aruch writes in Yoreh De’ah 214, quoting the Ran to Nedarim 80b, that a minhag is binding mi-ta’am neder mi-de-Rabbanan (because it is Rabbinically considered a vow). In other words, aside from being bound by any nidrei ha-yachid (individual vows) a person makes, he is subject to the nedarim of the tsibbur (community) as well. But this latter category depends on which tsibbur he belongs to. Once a person moves to a different community, he is subject to that community’s minhagim, unless he intends to return home.
Usually, when a couple gets married, we assume that they become part of the same tsibbur. But who enters whose community? It depends. If the husband is a ba’al teshuvah (recently became religious) and the wife has a long-standing tradition of observance, we would assume that the husband enters the reshus (domain) of the wife. But if they are both observant and each has a strong family tradition, we usually say that the wife enters the husband’s reshus. Rav Moshe thinks that in such a case the wife does not even need a hattaras nedarim (annulment of vows), because she is no longer a member of the tsibbur in which she grew up.
How far, though, does that extend? If the husband davens
Nusach Ashkenaz and the wife Nusach
Sefarad, or if the husband waits six hours and the wife three hours before eating dairy after eating meat, is that a problem? Or does the rule of taking on the same minhagim only apply to things that they do together – like the minhag of refraining from gebroks (foods made with matsah meal) or kitniyos (legumes) on Pesach, which affects the meals they eat together? One might argue that they do not have to share private practices, like which nusach they use. At the same time, though, it is a little strange to say that with regard to eating kitniyos the wife belongs to one tsibbur and for davening to another. I would assume that she probably has to join the husband’s tsibbur completely and accept all of his minhagim.
The issue of minhagim is very murky and has not been clarified well. Rav Dovidl Karliner, in She’eilas David, has a long kunteres (exposition) on minhagim. I was once very eager to read it because it is such a major issue today, but afterward I came out unsatisfied; he did not really make anything clearer for me than it was before. Rav Moshe also does not tackle the whole issue systematically.
As students or community members who do not have the time or ability to fully devote to learning every area of Halakhah in-depth, should we focus on learning Halakhah from its biblical and Talmudic sources and study how it developed into modern practice or focus on practical Halakhah le-ma’aseh?
A person should first learn Halachah le-ma’aseh to know how to keep the mitsvos properly – ha-ma’aseh asher ya’asun – and only then focus on Gemaros like Bava Kamma and Eruvin and others which typically are not as relevant for day-to-day practice. In my opinion, learning the Kitsur Shulchan Aruch is the best way to get a grasp on Halachah le-ma’aseh. Unfortunately, it is a little bit out of style now. Years ago, it was one of the most popular sefarim in the Jewish community, especially among balabatim, and was reprinted many times over. I think there was a period of time in which it was printed more often than the Chummash!
It is important to ensure that the sefarim you are using for Halachah le-ma’aseh learning are up-to-date. Rav Benny Lau put out a Kitsur Shulchan Aruch for modern times with all the piskei Halachah that are relevant for Jews today. It is an important resource.
Is there any one area of halakhic observance that you think could be improved in the YU community? in the broader Modern Orthodox community?
We believe that learning Torah is supposed to lead to yir’as Shamayim because we believe that the Torah is a description of God, a “mashal ha-Kadmoni” (a parable for the Ancient One). Sometimes, boys in Yeshiva enjoy learning because it is fun and an intellectual delight. There is nothing wrong, of course, with enjoying one’s learning – the Eglei Tal writes that it is part of the mitsvah and even enhances the mitsvah if you enjoy the learning. But still, a person should realize that learning is not a game. The Torah is very serious and should not be studied purely as an intellectual pursuit. We have to realize that the Torah is supposed to have an influence on us and change us. We should not make up our minds about Judaism before looking at what it has to say. Rather, we should have a blank mind and let the Torah influence our views and hashkafos on issues. I feel that that attitude toward learning is a bit lacking in our yeshivah and should be worked on. You should enjoy the learning on an intellectual level, but it should also be done in such a way that it enhances your yir’as Shamayim and shemiras ha-mitsvos.
With regard to the rest of the community, the Gemara in Avodah Zarah (20b) quotes the Beraisa of Rabbi Pinchas ben Ya’ir that Torah learning leads to successive levels of heightened spirituality, even up to techiyyas ha-mesim (the ability to resuscitate the dead). Everything starts with limmud ha-Torah. I think we should encourage the broader Modern Orthodox community to try to set aside more time for learning. A person should make sure he goes through the Kitsur Shulchan Aruch to learn Halachah le-ma’aseh and when he graduates that, he can go on to learn Chayyei Adam. I would also suggest that people be ma’avir sidrah (go over the weekly Torah portion) every week with Chummash and Rashi and make sure to have a kevi’us (set time) of learning every day. The Modern Orthodox community is not interested in learning as much as it should be, I feel, and has to work to improve that.
Rabbi Hershel Schachter is a Rosh Yeshivah in MYP/RIETS, occupies YU’s Nathan and Vivian Fink Distinguished Professorial Chair in Talmud, and is the Rosh Kollel in RIETS’ Marcos and Adina Katz Kollel.