Author: Rabbi Moshe Walter. Title: The Making of a Halachic Decision The Making of a Halachic Decision. Pages: 231.
Price: $24.00 Publisher: Menucha Publishers.ISBN: 1614650896. Rating: 3* out of 5.
Any student of Jewish law has often wondered about the origin of the Halachic decision making process. True, the Talmud is full of arguments. If you ask a Jew his opinion, he will give you at least two different answers.
Rabbi Moshe Walter’s new book, The Making of a Halachic Decision The Making of a Halachic Decision, examines such questions as, “What constitutes a halachic decision? How we arrive at a conclusion when there are a myriad of perspectives to choose? Why are some decisions considered more valid than others? What about minority opinions?
For many years, I have grappled with many of these same questions. So, with great interest, I read Rabbi Walter’s book to see how an Orthodox scholar arrives at his conclusion.
The first part of the book attempts to define the Halacha. The root of the term “Halacha” derives from the verb, halach “to go.” Halacha is thus, “a process; just as one walks from point A to point B, so too, halachah is a process that begins at point A and finishes at point B” (p. 19).
Sounds pretty simple, but wait!
The author goes on to stress that the study of the halachah is more important than the actual study of the Talmud. This is a refreshing perspective. Too many yeshivas tend to worry about Talmudic pilpul, a process that involves intricate hair-splitting arguments over the thought processes of the Talmud.
Walter stresses that halachah is vital because it has a practical application; of course, the halachah can be quite theoretical as well. Among the other points Walter stresses is the importance of studying the section of Jewish law dealing with everyday issues, known as “Orach Hayyim,” the “path of life.”
Thus far, I agree with his observations. The practical matters of prayer are activities we do every day. Yet, it is amazing how ignorant even young rabbis are when it comes to applying these basic principles at a Torah reading, or when the minyan is less than ten.
Walter divides his book into three sections: Klalei Hapsak (Principles of Decision Making), The Halachos of Hora’ah (Laws of Rendering Decisions), and Klalei Haposkim (Principles utilized by the Halachic scholars in rendering their legal decisions.
The section on Klalei Hapsak provides the reader with a short synopsis of the medieval authorities that created the Codes that would later inspire the creation and formation of the Shulchan Aruch. These sources include: Rif, Maimonides’ Mishnah Torah, the glosses of the Rosh, and Tur, and why each of these sages decided to write their books and codify halacha the way they did and the reactions they received.
One of the questions Walter raises is whether Maimonides ever intended to create a substitute for the Talmud, or did he intend for his Mishnah Torah to be used concurrently with it?
In the second section, “Halachos of Hor’ah” Walter raises some interesting questions about the dynamic relationship between the person making a halachic query to the rabbi he is asking. He touches upon questions such as: What information must the questioner share with the rabbi? When may a questioner ask a different rabbi? What is the role of the rabbi? Which rabbis are bona fide halachic authorities? How is a rabbi expected to respond to a halachic question? What is semicha today?
In the section pertaining to not creating factionalism in matters of Halacha, (lo tisgedenu based on the verse “Do not make a bald spot between your eyes in Deut. 14:1), the author attempts to explain the rational for not challenging a decision once rendered in a court. Walter correctly notes that other courts within the city are free to make their own decisions (p. 135).
My objection to Walter’s work is that he fails to take into consideration the reality of realpolitik when it comes to making halachic decisions. Aristotle said it best, “Man is a political animal destined naturally for political life.” Rabbis of the Haredi community would do themselves a favor and utilize Aristotle in their deliberations of Jewish law.
Walter also fails to discuss why the Israeli and Haredi environment routinely disrespect this principle and insist that every Jewish community in the Diaspora or in Israel, follow the rulings of a Haredi scholar, whom has a large following. Questions like whether a Jew can accept the definition of brain death is important since it pertains to the importance of organ transplants. Yet, many Haredi rabbis claim that a Jew can receive a heart from someone who is brain dead, but can never return the favor in reverse. Such intellectual chicanery disgraces and discredits the halacha as we have witnessed countless times in Israel.
In practical terms, these rabbinical scholars routinely negate other rabbinical conversions if a woman should fail to cover her hair (if she is married), or if she wears pants. Rav Joseph B. Soloveitchik’s wife did not cover her hair. Would today’s extreme Haredi rabbanim dare to negate the Rav’s halachic rulings?
There is an outstanding work entitled HaMachloket b Halacha edited byHanina Ben-Menahem, Neil Hecht, Shai Wosner. This massive two volume work spans over a 1400 pages. I am astounded that Walter did not think to quote from this study. The authors systematize the material far better and Walter should familiarize himself with this study in the next revision of his book.
Here is another criticism I have of the book. Walter quotes Maimonides:
- Know firstly that I did not say, Heaven forbid, not to engage in either the study of the Gemara or the halachas of the rav, Rabbi Yitzchak [the Rif] or another besides him . . .For I did command or think that I would burn all the sefarim that were authored prior to me as a result of my work? Did I ever state explicitly in the beginning of my work that I only wrote it . . . for one who is unable to delve into the depths of the Talmud and will be unable to understand from it the way of the forbidden and the way of the permissible [p. 44].
Walter’s view of Maimonides does not convince me at all. Maimonides makes his position super-clear in his Introduction to the Mishnah Torah:
- A person should study the written Torah first, and then read this [book], and thereby know the entire oral Torah, so that he will not need to read any other book in between them.” The criticism also reflected divergent local traditions and custom (minhag).
Maimonides’ greatest Ashkenazi critic, R. Abraham b. David of Posquières (Ravad),wrote these scathing words in his Introduction to Maimonides’ Mishnah Torah:
- Maimonides “has abandoned the method of all the authors who preceded him, because they brought proofs for their words, and cited their sources … But this way, I do not know why I should disregard my tradition and my proof for the sake of this author’s book.”
Ravad saw through Maimonides subterfuge.
Frankly speaking, Maimonides had no illusion of what he was attempting to accomplish. Bear in mind the Talmud in his time hardly resemble the Vilna Shass used by Artscroll today. The Talmud was a scattered document; haphazardly produced. Maimonides penchant for order viewed the Talmud with disdain—especially because of its theological penchant toward anthropomorphism. His inclusion of theological ideas represented a vast improvement over the original Talmud.
In short, Walter’s book is a fine for a beginner interested in explaining how halacha is arrived, but the Hebrew encyclopedia work HaMachloket b’Halacha mentioned earlier does a vastly better job for anyone familiar with Modern Hebrew and the halachic sources the authors quote.