Teleological Decision Making in Halakha

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In this paper I discuss teleological decision-making in halakhah, cite examples of such decisions (by Sephardic rabbis of recent centuries), analyze these examples and discuss some of the important implications of such decision-making. By
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    15  TELEOLOGICAL DECISION-MAKING IN  HALAKHAH  : EMPIRICAL EXAMPLES AND GENERAL PRINCIPLES  by ZVI ZOHAR  *    Introduction In this paper I will discuss teleological decision-making in halakhah , cite examples of such decisions, analyze these examples and discuss some of the important implications of such decision-making. By “teleological decision-making” I refer to halakhic deliberations that explicitly take into consideration the probable consequences of ruling according to conventional halakhah , and allow these consequences to affect the decision in the matter under consideration. 1  This may be contrasted with rulings that present themselves as “pure” application of the halakhic literature of past generations, based on standard interpretations of texts and precedents. 2   *   Zvi Zohar is Chauncey Stillman Professor of Sephardic Law and Ethics at Bar Ilan University, where he teaches at the Faculty of Law and the Faculty of Jewish Studies, and is a Senior Research Fellow at the Shalom Hartman Institute of Advanced Judaic Studies in Jerusalem. I would like to thank Yahav Zohar who translated an earlier version of this paper that formed the basis for the current  publication. I also thank the anonymous reviewer for his comments and critique, which were helpful in formulating the final version of this article.   1  It may well be that in many (all?) rulings that present themselves as “straightforward halakhah ” and that make no use of explicit teleological arguments, the authors have in fact considered the consequences, but chose to conceal this from their readers for strategic or tactical reasons. That is why I focus here only on halakhic rulings in which the teleology is explicit. A further note: The term “teleological” seems appropriate to me, although I do not have a great stake in its use, nor do I seek to  preclude the use of other, similar terms to describe the halakhic phenomenon discussed in this paper. 2  Such decision-making is sometimes referred to as “formalistic decision-making”; the approach that advocates such a mode of decision-making is known as “formalism”. With regard to formalism in Israeli law, see Menachem Mautner, The Decline of Formalism and the Rise of Values in Israeli Law  (Tel Aviv: Ma’aglei Da’at, 1993 [Heb.]). Many legal scholars maintain that for a significant part of the 19 th  century, American courts practiced formalism. Recently it has been argued that historically this was not so. See Brian Z. Tamanaha, “The Bogus Tale About the Legal Formalists”, April 2008 ( St. John’s  Legal Studies Research Paper No. 08-0130  (http://papers.ssrn.com/sol3/papers.cfm?abstract_id =1123498). Be that as it may, I make no empirical claim about the prevalence of formalistic rulings in halakhah. My focus here is upon a particular type of non-formalistic decision-making in halakhah, i.e., teleological decision-making.  332   “ Wisdom and Understanding”  :  Studies in Honour of Bernard S. Jackson One must of course distinguish between teleological decision-making and the formulation of ordinances; the formulation of halakhic ordinances ( takkanot  ) is aimed at effecting results, and bears some similarities to the matters discussed  below. However, this paper relates only to teleological decisions regarding existing halakhic norms. 3  First, I will classify teleological decisions by the extent of the change they aim to effect: amending the entire halakhic sphere, amending a certain realm of halakhah  or amending one specific matter. Subsequently, I will discuss decisions of the latter type, and cite seven such examples, analyzing each. Finally, I will suggest some tentative generalizations regarding the teleological decision-making process that seem to follow from the cases discussed.  Differing Extents of Aims and Effects One may distinguish between the aims of halakhic decisions according to the scope of the results sought by the decisor. I shall first briefly mention considerations that relate to a result affecting more than just one specific case. Thus, for example, some rabbis aspired to  reform the entire sphere of halakhah by putting it in overall order.  A premier example of this is Rabbi Yosef Karo’s express purpose in his monumental project of the  Beit Yosef   and Shul  x  an ‘Arukh . 4  In his introduction to the  Beit Yosef   Karo laments the fact that following the trials and tribulations of the diaspora “the Torah has become not as two Torahs but as innumerable ones” and explains that in his work he wishes to present the scholars of his generation with a digest of the writings of all great halakhic scholars of the past on every halakhic issue. However, he continues, his aim is not merely encyclopedic: “I have resolved that after this I will make a halakhic decision, deciding between the different opinions since this is the goal: that there shall be for us one law and one manner  ” .  This goal was seen by Karo as an overarching religious and cultural desideratum  of self-evident validity – although the meaning he attributes to the  biblical phrase “One law and one ordinance shall [there] be” is relatively rare in the Jewish tradition. 5  He goes on to write that this purpose cannot be achieved by 3  In one sense any decision is aimed at a result: resolving the issue at hand. The need for halakhic decisions creates the demand for the function of the decisor. However, this is obviously not what I mean to discuss here. 4  Joseph Karo (1488-1775) is considered one of the pre-eminent halakhic authorities. The  Beit Yosef includes a detailed précis and discussion of the unfolding of halakhah  on all topics relevant to Jewish life in Karo’s time (16 th  century), following the order of topics employed in Rabbi Ya‘akov bar Asher’s 14 th  century work  Arba’ah Turim . The Shul  x  an   ‘Arukh  presents the “bottom line” of all this, i.e., the norms which obligate Jews today. 5  This expression “one law and one ordinance shall be for you [and for the stranger that sojourneth with you]” is a quote from  Num . 15:16. In its srcinal context it does not mean that there is no room for variety in the normative life of the Jewish people, but that whatever the normative state of     Zohar: Teleological Decision-Making in Halakhah 333   deciding every disagreement between great rabbis of the past based on the relative merits of each position, since such a decision is beyond human capabilities, both  because of the amount of time this would require and due to our intellectual limitations. But he did not therefore abandon the realization of this ultimate goal. Rather, he proposed to achieve it by a completely formal process. Karo’s innovative solution was to create an imagined  Beit Din  whose members were “the three pillars of teaching upon whom the House of Israel rests” and to rule on every halakhic issue according to the “majority” of these three. 6  When one or two of these rabbis was silent on a specific issue, Karo “sat” other leading decisors on the “bench” of this “court”. It is notable that the method is formal – but Karo’s goal is not formal at all, but rather the realization of what he regards as an ultimate religious value: the unification of halakhah . A second example of an explicit overall religious-social telos guiding halakhic decision-making is Rabbi Ovadia Yosef’s (b. 1920) project of “restoring the crown to its ancient glory”. This project aims at correcting the religious-normative situation among Jews in Israel, so as to end the current multiplicity of norms. Rather, all should follow the decisions of Rabbi Karo. Rabbi Yosef sees this as the realization of a basic religious duty: that of following the rulings of the  Mara  De’Atra  [Aramaic: “the master of the place”] of the land of Israel. For Sephardi Jews there is the added duty of obeying the sage whom the great Sephardi rabbis of the past “accepted”. But Rabbi Yosef believes that above and beyond these formal obligations to Karo’s authority, the acceptance of Karo’s rulings by all Jews in Israel will promote the realization of a transcendent religious-historical aim, since it foreshadows the situation in messianic times, when “they [the people of Israel] shall be no more two nations, neither shall they be divided into two kingdoms any more at all” (  Ezek  . 37:22) but rather all shall follow the same halakhic path – as set forth by Rabbi Karo. 7   _____ the Jews is, that of the “sojourners” living with them must be identical. This is how Maimonides understands it in his responsa  (§293). In rabbinic texts composed before the 16 th  century, only a few rabbis interpreted this verse in a manner similar to Karo. These include, e.g., Rabbi Yehuda HaLevi (Kuzari, III, 38 and 49) and Na x  manides ( novellae to  Meg.  2a). 6  These three authorities were R. Isaac Alfasi (d. 1103), Maimonides (d. 1204) and R. Ya‘akov  bar Asher (d. 1340). Since each lived in a different century, the notion that they could constitute a  Beit  Din (halakhic court) is not in consonance with any standard definition of this legal institution, but rather an imaginative move. 7  In my book  He’iru Pnei Hamizra x    (Tel Aviv: Kakkibutz Hameuchad, 2001), 312-352 (Heb.), I discuss R. Ovadia Yosef’s project to reinstate the authority of Karo’s rulings over all Jews residing in Israel. Rabbi Dr. Benny Lau holds a different interpretation of the scope of Yosef’s project, and wrote in his Ph.D. dissertation (Bar Ilan University 2002) that Rabbi Yosef aims only for all the Sephardi Jews to follow Karo’s rulings, and acknowledges that Ashkenazic Jews may act otherwise. He notes, inter alia , that Rabbi Ratson Arussi’s view on this matter is identical to mine. In any case, even a teleological principle that applies “only” to all Sephardi Jews is of quite broad scope.  334   “ Wisdom and Understanding”  :  Studies in Honour of Bernard S. Jackson A third example of an overall telos governing the considerations of a halakhic decisor is the goal reflected in the strategic principle “the new is forbidden by the Torah” as applied by the -  atam Sofer. Rabbi Sofer (1762-1839) had a general aim, i.e., the negation of initiatives by various “reformers” to change the norms governing Jewish life. Some of the reformers did not see themselves as operating within the bounds of  Halakhah , and these Rabbi Sofer did not view as a serious threat. The more significant threat was posed, as he saw it, by reformers who  perceived themselves as acting within  Halakhah , who justified their innovations by recourse to halakhic arguments and sources. Instead of replying to their various specific arguments, Rabbi Sofer invoked a strategy of total disqualification of any  proposal for change, even if it appeared to be based on precedents and halakhic argumentation. The principle “the new is forbidden by the Torah” (as advocated by Rabbi Sofer) ascribes a uniform status to a whole set of halakhic changes without exploring their individual merits; by this method he sought to achieve an overall telos  – negation of reform. Organizing or Reforming a Wide Realm of Halakhah Above I related to rules or aims that apply to the entire halakhic system. I shall now present teleological considerations aimed at amending a wide but limited realm of halakhah . One well known example is the general leniency in evidentiary law and other matters, instituted expressly in order to ease the release of agunot, women whose husbands are missing. 8  Another example is the improved treatment of idolaters or non-Jews “to prevent hatred” or “to promote peace”. In this last case many halakhic rules expressing a stringent or hostile attitude towards Gentiles are moderated or entirely suspended because of wider considerations, beyond the specific decision within which the rule is applied. 9  In both these cases the amendments are contrary to the rules of halakhic decision-making that would govern them if not for these general policies. Following the establishment of this policy, individual decisions based on the merits of each case are no longer required, but rather the very identification of the case as  belonging to one of these categories (‘ iggun or gentiles) entails the activation of the general policy. 8  “Because of ‘ iggun the rabbis were lenient ” ; see, e.g., Yeb. 78a; Gitt. 3b. This maxim appears numerous times in the responsa literature. There is extensive discussion of this issue in both halakhic and academic texts. 9  Once again, there is extensive literature on this topic. See, e.g., Eliav Shochetman, “Jewish Gentile Relations: ‘In the Interest of Peace’ and ‘Because of Hate’”,  Ma x  anayim  1 (1992), 52-73 (Heb.).     Zohar: Teleological Decision-Making in Halakhah 335  Teleological Considerations in Specific Halakhic Issues As I wrote in the introduction, this paper focuses on the appearance and use of teleological considerations in specific halakhic cases. The following examples are mostly from Sephardi/Mizra x  i halakhic writings of the 19 th  and 20 th  century, which are relatively familiar to me. This is not to say that the phenomenon of teleological decision-making does not exist in the decisions of other rabbis of the same period and earlier periods. 10  After presenting these examples I will seek to offer some more general observations. 10  I will cite two examples. One is the decision of Rabbenu Tam, accepted in Europe and later throughout almost the entire Jewish world, not to force a man to divorce his wife if she says that her husband is repugnant to her, despite the fact that the great rabbis who preceded Rabbenu Tam had ruled that if a woman says her husband is repugnant to her he should be forced to divorce her. The decisions of Ashkenazic rabbis on this matter are clearly teleological. Rabbi Asher Ben Ye x  iel explains what he considers to be the relevant teleological consideration: “Jewish women in this generation are conceited, and if a woman could free herself from her husband by saying ‘he is not to my liking’, you would have nary a daughter of Abraham left sitting beneath her husband. They would fix their eyes on other men and revolt against their husbands; therefore it is better to refrain from forcing (husbands to) divorce” (Rabbi Asher Ben Ye x  iel,  Resp . §43.8). In order to prevent a result that these rabbis viewed as intolerable, they ruled against what had been standard halakhah  for hundreds of years. A second example can be found in a responsum  by Rabbi Ya‘akov Breisch, who was rabbi of the x  aredi  community in Zurich (d. 1976). He was consulted with regard to the case of a woman about to be married, who according to views current in the ultra-Orthodox community might be considered “damaged” because her parents did not observe ritual purity: should a person aware of her parents’ lifestyle inform the woman’s fiancé of this? After citing a few sources indicating that such information must indeed be revealed to the fiancé, Rabbi Breisch wrote: ... despite this, in this case one should remember that the rabbis wrote “their God would not like you to talk of them thus” ( Sanh.  111a; see Rashi ad loc. ). In recent times, thank God, the generation has  become more observant, and many daughters of reform Jews are being educated according to x  aredi  Judaism. If we apply the law stringently, what will happen to these girls? Would we send them to marry reform men and prevent them from leading an observant life? Furthermore, after the terrible destruction [of the Holocaust] many surviving children were raised as observant Jews and in some cases we don’t know much about their parents. Therefore it should suffice that according to the letter of the law they are permitted to marry, and not to apply supra-legal norms of piety. For while of course these are important matters reaching to the highest heaven, but on the other hand, if we  preach these matters in public we would be giving a hand in pushing them out of the observant world (  Resp . -  elkat Ya‘akov ,  Even Ha‘Ezer   §1). I.e., following x  aredi  custom in rejecting people with such “defects” of parentage would under current circumstances be so destructive that it is better to avoid it, despite the firm base for such rejection in standard halakhic sources that Breisch himself had quoted earlier in his responsum . Rabbi Breisch adds another sentence implying that he was still undecided whether to rule against full disclosure to the fiancé: “Appropriate to this case is what Rabbi Yo x  anan Ben Zakkai says in Tractate  Baba Batra  of the Babylonian Talmud 89b: ‘I will be wrong to say it and wrong not to say it.’” But the conclusion of the responsum indicates that he ultimately ruled according to the teleological consideration.
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