The Human and Social Factor in Halakha

by Aharon Lichtenstein

Originally published in Tradition 36 (2002) pp. 89-114. Appears here with permission.

Any comprehensive overview of the concern for the human and social factor within halakha needs to relate, perhaps both substantively and historically, to several planes. We need to consider, first, the primal halakhic core. What is its presumed, and possibly avowed, telos? And how “friendly” is its codex—how rigorous its demand and how permissive its latitude? Secondly, we must examine the halakhic process, from a historical (albeit not from a historicistic) perspective. In part, this is simply a complementary extension of the initial phase. Pursuant to an analysis of the scope and nature of the concern for man implicit in the de-oraita bedrock of Torah, we could similarly probe the character and content of its de-rabbanan accretions. In part, however, it presents us with an independent challenge—examination of whether and how sensitivity to the human and social factor has impacted, legitimately, upon the formulation and implementation of halakha.

The first question itself bears a dual aspect, relating to both intent and content. With respect to the former, the Torah itself describes its regimen as destined to enhance human good:

And now, Israel, what doth the Lord thy God require of thee, but to fear the Lord thy God, to walk in all His ways, and to love Him, and to serve the Lord thy God with all thy heart and with all thy soul; to keep for thy good the commandments of the Lord, and His statutes, which I command thee this day? 1

A similar chord is struck in familiar texts in Hazal. In a general vein, we are told:

The Holy One, blessed be He, desired to give Israel merit, therefore He gave them much Torah and many mitsvot, as it is said, “The Lord was pleased, for the sake of His righteousness, to make the Torah great and glorious."2

And, at the pragmatic and utilitarian level, several halakhot are explicated in light of the assumption, “The Torah was concerned with [unnecessary expenditure of] Israel's money.”3

At bottom, however, such prooftexts are inconclusive, as they leave open the critical issue of the definition of key terms. “To give merit” could range from material bounty to spiritual purgation. To which sphere does “for thy good” refer, the mundane arena of psychosocial benefit or the posthumous olam she-kulo tov?4 We are therefore driven to move from teleology to substance, to encounter the fabric of halakha proper. We would need to examine, on the one hand, whether, and to what extent, its corpus promotes and/or mandates affirmation or denial; its consonance with the realization of natural desire or aspiration; where its norms, taken collectively, stand on a scale of asceticism. On the other hand, we would have to analyze the extent to which there is allowance for deviation, on human and social grounds, in particularly trying circumstances; to test, in effect, the scope of the Rambam’s assertion with respect to the dispensation of pikuah nefesh:

Hence you learn that the ordinances of the Law were meant to bring upon the world not vengeance, but mercy, lovingkindness and peace. It is of heretics—who assert that this is nevertheless a violation of the Sabbath and therefore prohibited—that Scripture says, “Wherefore I gave them also statutes that were not good, and ordinances whereby they should not live.”5

Such an examination, even if exhaustive, would hardly produce a definitive response. So much depends on the eye of the beholder and upon the standards employed. Moreover, the elements of the halakhic order are, in this respect, widely divergent, exacting rigor seemingly reflected in some and general acceptance in others, so that an observer can focus upon components highlighting his own emphases while apologetically parrying others, apparently inconsonant with them. And, of course, one’s conclusions might be subtly multifaceted, postulating dialectical interplay, the concept of intermediate constriction as leading to ultimate human efflorescence, or both.

The last, broadly speaking, was the position of the Rav z.t.l. He repeatedly—alternately and, at times, even concurrently—developed twin themes. On the one hand, at both the ethical and the religious planes, he celebrated inhibition and restraint. At times, he almost identified yahadut with denial and sacrifice, through which the Jew both heroically attains spiritual catharsis and submissively bonds with the Ribbono Shel Olam.6 On the other hand, he consistently rejected asceticism and emphasized that halakha neither accepted nor rejected the world but affirmatively mandated its sanctification through disciplined channeling of physical and passional experience.7 His emphasis fluctuated, and the relation between the respective elements underwent changes. But the basic adherence to this dual motif remained fairly constant, and it served as one of the linchpins of his thought.

Even barring definitive conclusions, then, an analysis of the degree of halakhic concern with human and social reality and aspiration would bear valuable fruit. On balance, it would sharpen our insight into the substance and spirit of devar Hashem. At the very least, it would delineate attitudinal parameters framing possible conceptions of the place of human and social concerns within halakha. And it would reinforce our sense of the role, within yahadut, of halakha, as a ballast countering possible hashkafic excesses of either ascetic rigor or affirmative exuberance. Whatever instinctive or ideological reservations a purist may have about sexuality, these cannot exceed a certain point in light of the simple normative dictum—particularly as applied to a spiritual elite:

Sexual relations are considered a form of Sabbath pleasure. Therefore, scholars who are healthy set aside Friday night as the night when they fulfill their [weekly] conjugal duties.8

Valuable as such a discussion might be, it is not, if I understand my mandate correctly, the focus of this paper. My primary concern shall not be the bedrock halakha, quintessential devar Hashem, but ba’alei halakha, hakhmei ha-mesora in whom it is embedded and through whom it is developed, implemented, and transmitted. And I shall narrow the discussion still further by largely ignoring the basic phases of halakhic discourse—exegesis, hermeneutics, and analysis—and instead concentrating, with particular emphasis upon the post-Hazal era, on its latter stages of decision and hora’a.

Hora’a is comprised of two elements: pesak and pesika, respectively. The former refers to codification, the formulation of the law pertinent to a given area; and it is most characteristically manifested in the adoption, on textual or logical grounds, of one position in preference to others. As such, it is, essentially, the concluding phase of the learning process proper, whether on a grand or a narrow scale, and its locus is the bet midrash. Pesika, by contrast, denominates implementation. It bespeaks the application of what has already been forged in the crucible of the learning experience to a particular situation. It does not entail the definitive postulation of the law governing a delimited area or its detail, but, rather, the concurrent and coordinate meshing of all aspects, possibly drawn from widely divergent spheres, obtaining in a concrete situation. Its venue is, publicly, the bet din or, privately, the meeting of inquirer and respondent. It does not necessarily demand of the posek that he take a stand or break fresh ground. Its challenge lies in the need to harness knowledge and responsibility at the interface of reality and halakha.

The human and social factor is relevant to halakha at its various levels; and the point can be briefly illustrated by the example of shalom—perceived not only in moral and hortatory terms, with primary reference to the aggadic sphere, but as a halakhic element. At the teleological plane, it is described in one context as the impulse for the entire Torah. In the wake of Abaye’s query to Rav Yosef, as to why the mishna in Gittin ascribes the sequence of aliyot to the quest for synagogal harmony, and hence of de-rabbanan origin, when it could presumably be accorded de-oraita status, as a fulfillment of the commandment of “ve-kiddashto,” that we sanctify and entitle kohanim and leviyim, the gemara cites a brief discussion:

He answered: [This law] does derive from the Torah, but its object is to promote peace. [He objected:] But the whole of the Torah is also for the purpose of promoting peace, as it is written, “Her ways are ways of pleasantness and all her paths are peace!”9

It then goes on to present an alternate explanation, clearly implying that the basis of the rejoinder had been accepted.

What in the gemara is advanced, en passant, in the course of discursive debate, was posited by the Rambam in definitive terms; and furthermore, was linked to specific halakhot. As the coda to Sefer Zemanim, he elaborates upon a din cited from a gemara in Shabbat:

If [a poor man] needs oil for both a Sabbath lamp and a Hanukka lamp, or oil for a Sabbath lamp and wine for Kiddush, the Sabbath lamp should have priority, for the sake of peace in the household, seeing that even a Divine Name may be erased to make peace between husband and wife. Great indeed is peace, forasmuch as the purpose for which the whole of the Law was given is to bring peace upon the world, as it is said, “Her ways are ways of pleasantness, and all her paths are peace."10

The stark contrast between the situation at issue—concern lest domestic tranquility be perturbed should a member of the household bump himself in the dark—and the grandiloquent generalization only serves to sharpen awareness of harmony as a value.

At the plane of substantive content, we may regard the quest for harmony as the underpinning of a number of halakhot, if not of whole halakhic areas, mi-de-oraita. From a certain perspective, the mandate of bet din is not only juristic but social, and its primary function in that connection is the preservation of comity.11 Or, to take an individual example, the laws of harhakat shekhenim are intended not only to avert inflicting damage, but positively, to promote interpersonal civility.12 And, of course, the point is fully explicit as regards takkanot de-rabbanan, with respect to which the link is variously formulated. It may be viewed, as in the Yerushalmi’s13 explanation of eruvei hatserot, as an impetus to promote camaraderie, in positive terms. It may be the source of ordinances, instituted mi-penei darkhei shalom, intended to forestall possible friction.14 And, more sharply, it may underlie halakhot legislated mishum eva, with an eye to averting potential enmity, not only between Jew and Gentile but within the Jewish community proper, whether the resentment of a mate15 or the vindictiveness of a parent.16 The primary chord, the need to preserve and enhance interpersonal and communal harmony, is uniformly clear, however.

The element of shalom is likewise in force as an overriding factor, preempting the “normal” halakha. In Hazal, this aspect, at the level of particular implementation rather than general legislation, only appears explicitly vis-a-vis de-rabbanan ordinances. However, the Rama extended it to the de-oraita level as well. Invoking an aggadic account of Ahitophel’s extension of the license presumably implicit in the erasure of the divine name in order to establish marital reconciliation, he daringly elevates this to the status of general procedural principle:

We have learned from here that it is permissible to modify [the truth] for the sake of peace, and it is permissible to violate the injunction, “Thou shalt distance thyself from falsehood.” [The consideration of peace] also overrides the biblical prohibition of “Thou shalt not do thus to the Lord thy God,” which bans the erasure of God's Name, as is explained in the Sifri to Parashat Re'eh and counted by the Rambam and the Semag in their respective enumerations of the mitsvot. Since this is so, I say that it is also the case that [peace] overrides the prohibition of defamation; in other words, it is permissible to defame another if one's intention is for the sake of Heaven and for a good cause, [namely,] to promote peace.17

In certain respects, the application is ironic, inasmuch as the overridden issur is that of slander, presumably itself predicated, inter alia, by the concern for preserving peace and reducing acrimony. Moreover, as a routine operative principle, the use of so amorphous and highly subjective a criterion to dispense with any lo ta’aseh is potentially subversive. However, these reflections only reinforce awareness of the weight the Rama assigned to shalom as a halakhic category.

That weight is, finally, relevant, although not always manifestly so, at the plane of decision. In a sense, this point is manifested in Rava’s resolution of the question as to how one who can only afford either a candle for his home or wine for kiddush should choose, with the statement, “a candle for his home is preferable because of the peace of his household."18 Strictly speaking, however, this is not quite a decision, as Rava confronts options but not opinions. However, the same theme is indeed encountered in hora’a, narrowly defined, as exemplified by the Rosh’s determination that educated judicial opinion could substitute for hard evidence:

For by means of judgment there is peace in the world; therefore they empowered the judge to adjudicate and to do as he pleases, even without offering a reason or a proof, in order to foster peace in the world.19

Illustrations apart, however, the cogency and legitimacy of a “human” approach to pesak, appears, to many, problematic. They would have us believe that the ideal posek is a faceless and heartless supercomputer into whom all of the relevant data is fed and who then produces the right answer. Should this standard not be met, the shortfall is to be regarded as a failing, the lamentable result of human frailty—in Bacon’s terms, a manifestation of the besetting “idols” which hamper and hinder the capacity for reasoned judgment. On this reading, the process of pesika, properly conceived and executed, bears no semblance to an existential encounter between seeker and respondent. It entails, rather, the application of text to problem, the coupling of code and situation. This conception does not necessarily preclude reckoning with the specific circumstances of the question and questioner, as these may very well be part of the relevant objective data. The prevailing tendency, however, would be to dwarf this factor; and as to the human aspect of the meshiv, that would be obviated entirely. He, for his part, is to be animated by the precept that “we do not have mercy in judgment,” and hence, to pass on the merits of the issue with imperviously stony objectivity.

Purist proponents of this approach often cry it up as the “frum” view of pesika. In reality, however, this portrait of a posek is mere caricature, limned by those who, at most, kar’u ve-shanu, but certainly lo shimshu. As anyone who has been privileged to observe gedolim at close hand can readily attest, they approach pesak doubly animated by responsibility to halakha and sensitivity to human concerns. The balance between norm and need may be variously struck. There certainly are ideological differences among posekim over how much weight to assign the human factor—although, as Rav Avraham Schapira once noted, the classical meshivim are likely to be among the more lenient, inasmuch as inquirers are disinclined to turn to mahmirim. In principle, however, recognition of this factor is the rule rather than the exception; and responsa include frank acknowledgments of this theme. Writing to a colleague who had dissented from a lenient pesak he had rendered with regard to an aguna, Rav Hayyim Volozhiner asserts:

And I saw that in most matters, we were of like mind, except for [the fact that] his honor leans towards stringency, since the matter does not depend upon him. Likewise, before the yoke of practical decision was thrust upon me, I too did not incline toward the leniencies arising from [legal] analysis. In our great sins, however, the generation has been orphaned of sages, and now the yoke of practical halakhic decision-making has been thrust upon me, for in our entire region they do not free [agunot] in any manner without the concurrence of my meager opinion. Therefore I have taken counsel with my Maker, and feel obliged to gird all my strength and devote myself to remedying [the situation of] agunot. And may the blessed Lord save me from error.20

And does not the whole history of coping with agunot reflect this concern?21 To anyone familiar with that history, the point is self-evident; but no less an authority than the Mas’et Binyamin provides express witness:

In truth, I have written too expansively on this matter, when I should have been brief. [I did so] because I know that the way of some of the sages of our generation, may the Lord preserve them, is to follow the shining path and to avoid any doubt in the world, [refusing to rule on halakhic matters] unless they can determine a clear and unequivocal ruling, untinged by any contradictory considerations. They do this for the sake of Heaven, out of a fear of rendering halakhic decisions. This is a good and a straight path in all other areas of halakhic decision-making; but regarding agunot, such is not my position. Rather, I follow the well-trodden path of the earlier and later shepherds, who sought with all their strength all manner of considerations, primary and secondary, to be lenient in matters pertaining to agunot, as I have cited above.22

Or, to take a far more limited issue, we are privy to the pained determination of the same meshiv who, upon losing his vision, found himself grappling with the Bet Yosef’s conclusion that a blind person could not qualify for an aliya:

For now, in my old age, my eyes have become dim, and according to [the Bet Yosef's] opinion I should be banished from sharing in the Lord's inheritance (for the Torah of truth is eternal life), and I should not be counted among those suitable for an aliyah; therefore I said and determined to myself, “Heaven forfend that I depart from the path of the Tree of Life and cease grasping its branches! I have loved this law from earliest youth; it has always enjoyed primacy [in my life]. Even in my old age I shall not discard it, and I shall walk in it[s path].” [Thus,] I commenced halakhic research, to determine why the [Bet Yosef] has done this to me.23

It is, here, the posek’s own anguish, and with reference to a religious, as opposed to a mundane, need. But it is nonetheless profoundly human and bears ample witness to the rightful place of sensitivity within the process of halakhic decision. And would we have it otherwise? Does anyone truly yearn for a dayan who approaches an aguna and a blitztrop with the same degree of equanimity?

Hazal certainly did not. The operative rule, “Rabbi So-and-so is worthy of being relied on under exigent circumstances,”24 is clearly predicated upon the assumption that a posek can recognize an hour of need and may strive to respond to it. Implicit in this formulation is the concept of differential pesak, the principle that divergent answers may be given to the identical halakhic question, depending upon attendant human and social circumstances; and it is this concept which holds the key to the advocacy of sensitivity in halakhic decision.

And yet, whatever its precedents, the question of the moral and religious validity of this approach persists. Presumably, it cannot be grounded in the preempting of halakha by alternate normative or pragmatic considerations. One recalls, by analogy, Newman’s striking declaration: “The Catholic Church holds it better for the sun and moon to drop from heaven, for the earth to fail, and for all the many millions who are upon it to die of starvation in extremest agony, as far as temporal affliction goes, than that one soul, I will not say, should be lost, but should commit one venial sin, should tell one wilful untruth, though it harmed no one, or should steal one poor farthing without excuse.”25 Contemporaries may find it difficult to believe this sentence was not written by a virulent critic of Roman Catholicism but by one of its leading nineteenth-century spokesmen—indeed, by one of its most liberal spokesmen, and, mirabile dictu, in a work addressed to Anglicans, at that. The statement rings harsh if not cruel, and it aroused Kingsley’s strident ire. And yet, the very harshness of the dictum serves to point up the dimensions of the problem to which, in context, it addresses itself.

The difference between temporal and eternal bliss is one of kind rather than duration. As the metaphysician holds that timeless eternity is not to be confused with infinite time, so the moralist contends that no amount of mundane joy can equal a single grain of transcendental bliss. Since he “regards this world, and all that is in it, as a mere shade, as dust and ashes, compared with the value of one single soul,” he “considers the action of this world and the action of the soul simply incommensurate, viewed in their respective spheres.” The difference between them being qualitative rather than quantitative, no measure of physical or emotional good can compensate for even the minutest spiritual evil. Hence, once a normative duty has been established, it becomes inviolate. Moral and religious law defines principles of right and wrong, and henceforth—except insofar as that law itself provides for dispensations—these can be sacrificed to nothing.

Given its premises, Newman’s position, paradoxically harsh as it may seem, is grounded upon an inexorable logic. The Church is right in insisting that it “would rather save the soul of one wild bandit of Calabria, or whining beggar of Palermo, than draw a hundred lines of railroad through the length of Italy or carry out a sanitary reform, in its fullest details, in every city of Sicily, except so far as these great national works tended to some spiritual good beyond them.”26 Even in a moment of crisis, can one sacrifice bliss of hayyei olam upon the altar of hayyei sha’a? How, then, can the same halakhist issue varied responses to an identical question?

The clear answer is that while, of course, for the committed Jew, halakha, as a normative order, can never be superseded by external pressures, a specific halakha may be flexibly applied—and, in a sense, superseded—by the internal dynamics of the halakhic system proper. And this, in two distinct, albeit related, ways. The first entails recourse to a phalanx of factors, of human and social import, which affect decision as acknowledged halakhic elements. At the apex stands, of course, pikuah nefesh, but other factors, local or general, of lesser gravity, also abound. These include physical and psychological pain, financial hardship, social harmony, and human dignity, sensitivity to any or all of which can affect pesak measurably.

Yet, while the modus operandi concerning these factors—the measure of a posek’s awareness, how they are defined, and how liberally they are applied—may be of crucial practical significance, they do not constitute, philosophically, the heart of our problem. For their inclusion in the halakhic equation means that, even at the formal and technical level, two supposedly identical situations are, in effect, not identical at all. Our primary concern is therefore the second route—the latitude allowed a posek for differential decisions even when all things are indeed, formally and technically, even.

That latitude is grounded in the pluralistic aspect of halakha. The halakhic order comprises three distinct tiers. There is, first, an ideal, and presumably monistic, plane, the Torah which is ba-shamayyim. It is to this that the gemara in Bava Metsia alludes when it ascribes to the Ribbono Shel Olam a position with respect to an issue in taharot.27 There is, as the final stage, the definitive corpus, the genre of the Shulhan Arukh, which, having decided among various views, posits—again, monistically—what is demanded of the Jew. Intermediately, however, there is the vibrant and entrancing world within which exegetical debate and analytic controversy are the order of the day, and within which divergent and even contradictory views are equally accredited. The operative assumption is that, inherently and immanently, the raw material of Torah is open to diverse interpretations; that gedolei yisrael, all fully committed and conscientiously and responsibly applying their talents and their knowledge to the elucidation of texts and problems, may arrive at different conclusions. License having been given to them all to engage in the quest, the results all attain the status of Torah, as a tenable variant reading of devar Hashem: “Both these and those are words of the living God.”28

In one sense, this pluralistic conception is most immediately relevant to the gadol himself, possibly authorizing him to act in accordance with his own dissenting lights, even in the face of a prevalent consensus.29 However, it has ramifications for others as well. Were pure monism the order of the day, no degree of trauma—unless it constituted an acknowledged halakhic basis for dispensation—could justify deviating from standard norms. Against our grain, we would have to bow to Newman’s trenchant logic. However, the introduction of the principle of “Both these and those are words of the living God” alters the situation radically. Positions espoused by one talmid hakham are not only defined as a parcel of Torah with regard to himself. Within certain limits, they attain that status for adversaries as well. Time spent by Bet Hillel analyzing a view of Bet Shammai would be credited as a fulfillment of the mitsva of talmud Torah; a fortiori so, with respect to later posekim who had confronted both views before accepting one.

It is this concept which undergirds the legitimacy of recourse to minority opinions bi-sh’at ha-dehak. Inasmuch as these opinions are not simply dismissed as erroneous but procedurally rejected—in practice, we can’t have it both ways—they are very much alive, held in reserve where they can be culled from the shelf in a crisis.30 In effect, the principle of “Rabbi So-and-so is worthy of being relied on in exigent circumstances,” states, that while a given view has been accepted le-halakha, as part of our third tier, in an emergency we envision ourselves back at our middle tier, sans decisive resolution, and hence as authorized to heed another view. Moreover—and this is no less remarkable—under the pressure of circumstance, we are not bound by the general directive of sefeka de-oraita le-humra, but are entitled to follow a lenient minority.31

This license raises obvious questions. How liberally and by whom can it be exercised? >From how far back can discarded shitot be extracted—from the mishna, the gemara, rishonim, early aharonim? Which views, if any, might indeed be treated as error, and on what basis? At the practical plane, these issues need to be clarified, but that task lies beyond my present scope. Here, I content myself with an account of the principle and its rationale, as a manifestation of concern for the human and social element within pesika.

It is sometimes thought that the Rav was opposed to this approach. To the best of my knowledge, this assumption is primarily based upon a page drawn from Ma Dodekh Midod in which he emphatically rejects the notion that psychosocial elements are factored into the halakhic process and affect its course. Several sentences in this vein are admittedly sharp and sweeping. And yet, careful examination of this tenuously balanced passage reveals that its primary thrust is not denial of human considerations but insistence upon the autonomy of halakha. Commiseration is acknowledged as a legitimate factor stimulating the posek’s quest for a solution but is barred as a component of the halakhic process proper, once that has been set in motion:

However, the mutual connection between law and event does not take place within the realm of pure halakhic thought, but rather within the depths of the halakhic man's soul. The event is a psychological impetus, prodding pure thought into its track. However, once pure thought begins to move in its specific track, it performs its movement not in surrender to the event, but rather in obedience to the normative-ideal lawfulness particular to it.32

It is a nice distinction, and I confess that I am not certain it can be readily sustained in practice. In any event, it leaves the fundamental perspective I have outlined previously intact.

Moreover, the Rav’s own experience as a posek—admittedly, not his primary task—over the years reflected this outlook. And I might add a salient recollection. During the mid-sixties, Yeshiva University launched the Rogosin Institute for Jewish Ethics. One of its primary projects, under the direction of my late brother-in-law, Rav Professor Yitzhak Twersky z.t.l., was a group enterprise which entailed ferreting out and analyzing teshuvot in which the ethical moment figured significantly, either by dint of the topic or by the impetus of the response. I recall vividly how the Rav appeared at one of the opening sessions, warmly endorsed the project, and enthusiastically recounted how Reb Lippa Mirrer had gone to great lengths in order to overcome prima facie considerations which had seemed to portend an almost certain issur for the wife of a kohen.33

The autonomy so dearly and rightly cherished by the Rav is of course vital; but insofar as we deal with human and social elements which are related to the internal dynamics of the halakhic process proper, it remains largely intact. In this respect, one factor is, however, critical: the degree of self-conscious awareness which a posek brings to his encounter with extraneous considerations. Where that level is low, the danger of distortion is great. A talmid hakham needs to examine himself and his situation candidly, to ascertain that whatever cultural forces, possibly unknown to predecessors, he confronts and perhaps absorbs, are filtered through the prism of his Torah personality and do not simply seep through the pores of his semi-conscious being. To be sure, intellectual historians revel in emphasizing that it is precisely with respect to unquestioned assumptions that the most significant change, subtle and incremental, takes place; and, within certain proportions, some shift in the parameters of thought cannot be denied. Hopefully, however, here, too, there is a filter, more relevant to attitudes than to perception. As the body rejects certain grafts, so the soul; and the nobler the soul, the more selective its system. Be this as it may, however, the counsel regarding a posek’s active inclusion of human and social factors within his deliberations is that of controlled and critical sensibility.

Recognition of the possibility of differential pesak leaves open the question of the circumstances under which recourse to it is valid, advisable, and perhaps even mandatory.34 Clearly, on so delicate an issue we can hardly expect unanimity, possibly not even a clear consensus. A number of variables are involved, and each is susceptible of a broad spectrum of definition. Inasmuch as the issue turns on the balance between the halakhic order and human need, any resolution hinges on the degree of flexibility—in light of hermeneutic and/or analytic canons and the modus operandi of the system—assumed with respect to halakha, on the one hand, and the importance ascribed to personal or communal travail, on the other. Even the most caring and sensitive posek, confronted with genuine tragedy, may rule le-humra because, despite his most profound commiseration, he cannot traverse what are, on his conception, the bounds of the halakhic universe; because he cannot make a travesty of a din in order to relieve a personal crisis.

The issue is most keenly perceived at the individual level, but, to the extent that it involves the formulation of standards, may be general as well. How is pikuah nefesh to be defined? How great and how immediate must danger be? And how is nefesh itself, in this context, to be understood? What of sakkanat ever, of derangement, of apostasy? Can endangered public safety, even where no loss of life is in prospect, be viewed as its equivalent? What degree of pain invokes the license of tsa’ar and how great a loss justifies the license of hefsed merubeh?

These are immanent questions, to be honestly and conscientiously confronted; and surely we have no right to demand of a posek, almost as a matter of moral and personal right, the most comforting answer. The notion that “where there is a rabbinic will there is a halakhic way” both insults gedolei Torah, collectively, and, in its insouciant view of the totality of halakha, verges on the blasphemous. What we do expect of a posek is that he walk the extra mile—wherever, for him, it may be—harnessing knowledge and imagination, in an attempt to abide by his responsibility to both the Torah with which he has been entrusted and to his anguished fellow, whose pangs he has internalized. For insensitive pesika is not only lamentable apathy or poor public policy. It is bad halakha. To the extent that kevod ha-beriot, for instance, permits a “violation,” be it of a de-rabbanan injunction, actively, or of a de-oraita, passively, failure to act on that principle undercuts a spiritual ideal. The Rav was fond of quoting the Hafets Hayyim to the effect that interruption of keriat shema, where enabled, mi-penei ha-kavod, was not permissible but mandatory. Human dignity—the Rav would have preferred the term, “human sanctity”—is hardly a neutral matter.

Posekim, especially in the modern era, are often reluctant to invoke broad axiological hetterim when they can construct more narrowly based decisions, in which local and possibly technical factors are more prominent. Pesika can congeal into pesak, and a decision issued, with trepidation, in light of special circumstances, may then enter the halakhic world as a precedent. The danger is particularly acute at a time when many, within and without the pale of commitment, seek to pounce upon every such pesak in order to promote an ideological agenda. We should realize, however, that such reserve may exact a practical and educational toll, as awareness of certain values and their place within halakha may become jaded. Be this as it may, we can recognize the position of the human and social factor within halakhic decision as firmly secure. And, were visible evidence necessary, surely, the two greatest posekim of our generation, Rav Moshe Feinstein and Rav Shelomo Zalman Auerbach z.t.l., are prime exemplars.

Differential pesika requires the raison d’etre of a human or social desideratum. With an eye to Mill and Moore, in defining it, we obviously need to distinguish between the desired and the desirable. I would not, with reference to our context, rule out entirely assigning weight to the former. As there is a concept of subjective need, asher yehesar lo, with respect to tsedaka, so that the mitsva may encompass supplying a fallen aristocrat with a servant and conveyance,35 so empathetic concern for one’s fellow may include taking into account matters which, for most, might entail mere comfort and convenience but, for him, constitute genuine present want. Clearly, however, our focus is the desirable—not just what a person or community wants but what they should want.

Movement from is to ought may raise, in the posek’s mind and heart, basic moral, hashkafic, and halakhic issues, possibly concerning his existential stance vis-a-vis certain halakhot; and these, in turn, greatly expand the horizons of our discussion. Some cases, tragic as they may be, induce, in the posek, profound commiseration, but little tension. The situation of an aguna whose husband has disappeared in battle is palpably and uniformly perceived as pitiably bad. Trapped in a web of circumstance, she is bound by a norm whose inherent value a committed Jew readily comprehends but which, for her, has tragic ramifications. The situation might be somewhat different, however, in the case of a kohen who had fallen in love with a divorcee—or, worse still, who had become a ba’al teshuva after marrying her. In this case, a posek could find himself torn between empathy for the young couple and appreciation of the ideal of kedushat kehuna, even in its devalued contemporary form.36

He might lament the lack of an escape hatch which could provide dispensatory relief. But his appreciation of the norm per se and of the weight assigned it as a value is beyond question. However, in a third situation, that of kiddushei ketana on the part of a vindictive father, he, almost certainly, would not only regard the mekaddesh as a scoundrel but would regret that the institution exists. He would not, has ve-shalom, sit in judgment upon the license or question its morality. “Should the axe boast itself against him that heweth therewith? Should the saw magnify itself against him that moveth it?”37

He would, however, candidly assume that what had been apt and perhaps even necessary in a given sociohistorical setting was no longer ideally suited to his own. The assumption would certainly not exempt him from mastering the relevant halakhot nor dim his enthusiasm for analyzing the nuances of devar Hashem as, in accordance with Hazal’s authoritative exegesis, initially formulated. It might, however, in his mind and in ours, raise certain pertinent questions.

With respect to the last example, this might be particularly so, inasmuch as our posek evidently does not stand alone. Rav Yehuda in the name of Rav (or possibly, Rav Elazar) possibly had similar reservations and, hence, issued a prohibition:

It is forbidden for one to give his daughter in betrothal when a minor; [rather, he must wait] until she grows up and states, “I desire so-and-so.”

Ba’alei ha-Tosafot38 state that, due to changed historical circumstances, the issur was not observed in their society; and the Rambam softened the impact of Rav’s injunction somewhat by substituting for asur the milder admonition, en ra’uy la’asot ken.39 Be this as it may, the fundamental issue raised by Rav’s innovation is clear. What are we to assume, what did he assume, about the previous situation? In which respect and on what basis was the change justified, if not necessitated? Did the danger that the betrothed daughter would not be pleased with her father’s choice only surface in Rav’s time? And if it preexisted, why had there been no previous concern about it? Was his sensibility more sharply honed than that of the Torah?

The question is general, and can be raised with reference to almost any takkana, of human or social import. On the very same daf in Kiddushin, we hear of an analogous injunction, again cited by Rav Yehuda in Rav’s name:

A man may not betroth a woman before he sees her, lest he [subsequently] see something repulsive in her, and she become loathsome to him, whereas the All-Merciful said, “But thou shalt love thy neighbor as thyself.”40

Had the concern for amity been heretofore ignored? Or, to take a later example, how are we to regard Rabbenu Gershom’s ban upon polygamy, and how do its before and after relate?

Theoretically, several explanations may be suggested. One is that historical circumstances had, in a given instance, indeed changed. The fabric or structure of the community had been altered or the mindset of its members had been transformed so that phenomena which had previously been regarded favorably or apathetically now were resented, so that the hardship engendered bore redress. Alternatively, it might be contended that while a given procedure, for reasons we can only conjecture, had been enabled by the Torah, it had ab initio never been truly sanctioned, morally, but only permitted, if not quite at the level of “The Torah merely provided for man’s evil inclination,”41 then in a similar vein. From this perspective, the takkana would constitute spiritual progress, as a collective “Sanctify yourself with what is permitted to you.” Finally, change could be ascribed to the refined sensibility of reformers who, in effect, challenged the ethos upon which heretofore fully approved elements had been grounded.

The last is grist for the mill of secular maskilim but, virtually by definition, is, to the committed Jew, unconscionable. It ascribes injustice to Torah and rebelliousness to hakhmei ha-mesora, and we patently and vigorously deny both. Each of the preceding interpretations is, however, fully tenable. Assuming a stable standard, revised circumstances might militate a takkana regarding the applicable halakhot. The societal change might be for the better, as I suppose we would regard the yearning for interpersonal harmony in Rav’s examples. Or it might be for the worse. Mi-de-oraita, a parent is not obligated—unless, possibly, under the overarching rubric of tsedaka—to provide for his young;42 and this, notwithstanding the allusion to such failure in a pasuk in Eikha (4:3) as the epitome of cruelty. Presumably, the Torah here relied upon natural instinct. When that proved insufficient, the resultant social and moral lacuna required a takkana. Or again, Prozbul, so dear to the hearts of secular historians as a paradigm of progressive reform, was, rather, defined by the mishna as the result of moral and religious decline:

When he saw that people were avoiding lending each other money, thus transgressing what is written in the Torah . . . Hillel enacted Prozbul .43

Whatever the course of change, however, a takkana of this vintage serves to reinforce the initial corpus and reassert its formal and axiological thrust.

The second alternative is equally tenable. The possibility that, in the course of halakhic history, the moral bar might be raised, cannot, a priori, be precluded. Our unflinching commitment to Torah and its values need not entail assent to the proposition that its charge is, in every area and in every respect, maximal. Our firm faith in Torat Hashem temima need not assume that, at the formal normative plane, temimut has always been demanded of us, across the board. Quite the contrary. As the Ramban’s famous portrayal of a “scoundrel with Torah license” and comparable pronouncements clearly predicate, there may be room for complementing or supplementing its demands; and this, not only in order to plug loopholes, but by way of elevating the whole front. This endeavor may be communal no less than personal, and certain takkanot may be viewed as initiatives in this direction. In making specific judgments, we must of course be highly cautious. We need to check our own standards so as to ascertain that they are an outgrowth of the ben Torahin us and not simply an expression of an ephemeral zeitgeist; and we need to examine the relevant evidence, internal and/or external, in order to determine whether our reading of the previous and later phases is sustainable. Granted this caveat, however, this interpretive mode is clearly possible.

For some, the issues are considerably complicated, philosophically and practically, if the focus is shifted from the primal Torah datum to its subsequent development through the interpretive and legislative endeavors of Hazal and their successors. They contend, first, that these labors were significantly influenced by extraneous factors—personal mindset, ambient culture, current assumptions, or contemporary attitudes; second, that many of these are inconsonant with the modern temper; and third, that, in consequence, some halakhot are no longer binding.

The argument is familiar and appears in various contexts and guises. However, as committed benei Torah, we reject both the premises and the conclusion—particularly, with reference to Hazal. Certainly, they had predilections and attitudes. However, our faith in them inspires us with confidence that the halakhic process was governed by halakhic factors, that halakhic decisions rested on halakhic grounds. We have neither the right nor the desire to suggest that their judgment was diverted or warped by extraneous factors. We trust that they were fully aware of what they were doing and totally responsible to ammita shel Torah. The last thing we want to do is presume to understand them better than they understood themselves; to contend that while they may have thought they were pursuing one course, impelled by a given impetus, we, firmly ensconced in our social-scientific panopticon, know it was really another. The claim to superior retrospective insight is not uncommon in other contexts; but as to the critical transmitters—artificers of Torah she-be-al peh, we shall have no truck with it. We shall impugn neither the wisdom nor the integrity of Hazal.

But, it will be rejoined, granted that Hazal were indeed doing what they thought they were doing—formulating halakhot in light of exegetical and logical principles—don’t certain attitudes predispose to applying those principles in a given way and toward a specific end? In limited value-laden areas—tefilla, for instance—quite possibly. Even if that be the case, however, it is essential, in this connection, to bear a critical point in mind. The attitudes themselves are directives. “Blessed be He who chose them and their teachings” (Avot 6:1). Emunat hakhamim relates not only to the normative corpus but to the axiological realm as well. Hazal are, for us—if I may invert Ben Jonson’s phrase—not only commanders but guides. We follow in their footsteps not only out of deference to the formal and technical authority of the ultimate arbiter but because we recognize and are overawed by their greatness. They are, to adapt Justice Jackson’s formulation, both right because final and final because right. Hence, their attitudes—no mere intrusive graft but an organic outgrowth of the gavra rabba in them, can indeed provide the proper infrastructure for certain halakhot.

Hazal’s factual perceptions are, relatively speaking, more historically conditioned. Their reading of human nature, in its permanent metaphysical aspect, retains its full force; but observations of given sociological tendencies may be more relative and of lesser normative status. In an age of rampant speculative investment, no one is bound to a mercantilist ethos by dint of the gemara’s assumption that property is only sold in distress—“Whatever a person sells, he would not have sold had he not been under compulsion,”44 and presumably, no dispute should be abjudicated on the basis of avowedly anachronistic readings, insofar as their factuality is crucial. Hence, in certain areas, cautious reappraisal may very well be in order. There is, however, nothing in this process to undermine the halakhic order or to challenge its architects.

The situation is patently different, however, as regards attitudinal elements and practical implications of alleged obsolescence. Here, the gauntlet is patently and assertively thrown and we, for our part, reject both the critic’s factual premises and his legal conclusions.

Even if one were to grant that some halakhot were grounded in attitudes, at least partially ascribed to various influences, and if one were to acknowledge license to confront the attitudes, it hardly follows that the halakhot in question can be dismissed cavalierly. We still have to deal, with respect to legislated takkanot, with the weighty issue of the scope of the concept of “every prohibition decided by a majority vote requires another majority vote to rescind it,”45 the principle that a law retains formal validity unless and until abrogated by an authority comparable to that which had promulgated it; with respect to exegesis and interpretation, with the authority imbedded in, and derived from, the reality of “their decision has spread throughout Israel.”46

Of course, in certain instances, historical change may be such that the current situation, given its different character, had never been subsumed under the presumed original halakha. To take a relatively non-controversial example—one which entails the abrogation of leniency rather than of stringency—the late medieval Terumat ha-Deshen defended the view that a woman ought not to go to the mikve on Friday night, at least where she could have gone previously. This runs counter to a mishna in Betsa which had explicitly stated that Bet Hillel held that utensils could not be immersed on Shabbat, but that human immersion was permissible.47 The explanation given is that, on Rava’s view, the distinction is grounded in the concern that the utensil’s immersion appears to resemble its repair while, with respect to a person, it may simply be regarded as bathing. This distinction, contends the Terumat ha-Deshen, is no longer valid, inasmuch as, in fifteenth-century Germany, no one bathes on Shabbat; hence, the dispensation for tevila, is likewise rescinded.48 Or again, it is surely arguable that the halakhot concerning the exchange of coins of various metals do not apply if one changes nickels for a quarter, as Hazal dealt with multiple currencies and the United States has only a single currency, albeit with units of different metals.49 However, where the case remains essentially similar but only attitudes have changed, the halakha remains binding. Obviously, the line between the two categories is not always clearly drawn and may be the subject of controversy. Here, I simply note the direction relevant discussion might pursue.

What has been suggested with respect to Hazal is similarly applicable, albeit to a lesser extent, of subsequent hakhmei ha-mesora whose views have been incorporated in the standard halakhic codex. Them, too, we hold in dual esteem, seeking from them both guidance and command; and they, too, we trust, were generally able to evaluate critically influences to which they were exposed, on the one hand, and to base their halakhic conclusions upon elements genuinely germane to devar Hashem, on the other. Admittedly, later posekim enjoy lesser standing than that of Hazal, with respect to being either right or final. We may take license, attitudinally, to explain the proscription of kilayyim differently from the Ramban;50 and it is not inconceivable that, at some point, fully responsible and fully committed gedolim will reexamine the Mahari Mullen’s position regarding women’s wearing tsitsit.51 With respect to halakhic issues which verge upon public policy, particularly, we might feel that, at times, response to events has impacted upon the course of decision. Nevertheless, broadly speaking, our commitment to halakha and its authority entails faith in the integrity of the halakhic process and its outcome.

In conclusion, let me add three brief comments. In dealing with the human aspect of pesak, I have focused upon the personal plane. It is at that plane that, ordinarily, the most critical issues are likely to arise—that potential tragedy may be most acute and pain most sharply experienced. The same basic considerations obtain equally, however, in the public sphere. Hardship may be differently conceived, scope compensating for intensity; but the overarching approach would be quite similar. In a sense, a fresh qualitative dimension is added here, inasmuch as we deal with the well being of a tsibbur as such and not only with multiple individual problems. Hence, economic factors, at a level short of privation, which might not have been decisive at a personal plane, may nonetheless carry the day in the public sphere. But again, the governing halakhic and hashkafic elements are essentially similar.

Reference to the public sector serves to introduce a second comment. I have spoken throughout of sensitivity to the human or social factor as a basis for leniency. With regard to decisions a posek is called upon to render vis-&-vis an individual, this is indeed ordinarily, although not invariably, the case. In the communal arena, however, concern over the human factor may rather stimulate humra. Decisions made at this plane, even of the nature of pesika, are less ad hoc in character and take a more panoramic view of public policy. Part of that policy surely involves sustaining the human aspect of a society and enhancing its moral fiber; and that may militate stringency as well as leniency. The Meiri noted this point with reference to concern for maintaining adherence to din Torah generally; but, for our purposes, his comment can be focused upon our particular topic. Apparently somewhat puzzled, as was Rabbenu Tam, by Rav’s statement that appointees to the Sanhedrin should know how to purify a creeping thing according to the Torah,52 he explains:

It would seem to me in explanation of this matter that if they see in their generation stumbling blocks emerging from certain Torah laws, they will innovate laws or add or subtract, [enacting] temporary measures and bringing support for them from the Torah. Similarly, the geonim have written in their principles of the Talmud that rabbis or geonim possess the authority to innovate decrees and regulations, on a general or particular level, to remove unseemly matters as they see fit in their time, with only minimal support [from the sources]. On a similar matter, the greatest of commentators [i.e., Rabad] wrote: The Talmud has not been given over to anyone to detract or add or derive [laws], except for those who possess expert traditions or those who possess proper analytic skills and clear and deliberate judgment. However, this curtain has been drawn before the majority of people, and only one who is outstanding in his generation in his knowledge, sharpness [of thought], straightforward argumentation, and calmness of mind is worthy [of penetrating the curtain].53

Parts of the passage are striking and require further analysis. The balance of initiative, concern, and caution which characterize it is clear, however; and equally clear is the fact that its application can expand obligation rather than relieve it.

Finally, we need, in candor, to avoid merely stonewalling realities or sidestepping issues. No one questions the fact that, in some instances, our primary sources and our primal attitudes diverge. Moreover, it is not our baser predatory instincts but our nobler spiritual self which is engaged. And the problem is not one of hukkim as opposed to mishpatim. On the contrary, the eating of pork and wearing of sha’atnez, with respect to which the Torah has constructed an arena ex nihilo and has established the ground rules for working within it, pose relatively little philosophic difficulty. That is more likely to arise, if at all, where halakha has confronted areas immanent in the human condition and has legislated with respect to them. Broadly speaking, Hoshen Mishpat and Even ha-Ezer are fraught with greater difficulty than Orah Hayyim or Yoreh De’a.

These concerns, related to the larger issue of moral conscience and normative fealty, are real. We encounter elements which we describe, not only euphemistically but genuinely, as difficult; and the art of halakhic living is, at times, not so much discovering the answers as knowing how to live with the questions. Hence, our commitment to Torah and, a fortiori, to its integrative mesora, constitutes an article of faith and embodies emuna, genuinely conceivable. The facile conjectural assertions of historicistic critics, steeped in the mindset and vocabulary of relativistic multiculturalism and limited by tepid appreciation and admiration of Hazal, are well-known. In certain instances, the justice of some specific assertions may be acknowledged, but as a general onslaught their approach is wholly untenable. Each of us, who is halakhically knowledgeable, could compile a shorter or longer list of cruces, of directives which, had we authored the definitive codex, would never have been written. We did not, and are not presently authorized to do so; and each of us, who is halakhically committed, abides by devar Hashem, even when we have not fully comprehended or, possibly, not fully internalized, its total message. Even as we cope—at times, even as we agonize—our commitment remains firm and vibrant, and our passionate conviction, ashreinu ma tov helkenu, in every sense of tov, abides, keen and deep. In practice, our response may be multiple. Where we can, we seek recourse to proper adaptive change. “Truly, it would impede the proper running of a state,” Reb Hayyim Ozer wrote to Rav Herzog, “were a thief to exempt himself from a [punitive] double fine, for [Torah law dictates that] one who confesses his crime is exempt from paying a fine; therefore, in such a case it is necessary to enact regulations of the state.”54 Where we cannot, we live and work, animated by the humility and honesty of Reb Akiva Eiger’s poignant plea—ve-Hashem yair enai.

[We thank Reuven Ziegler for translations of Hebrew sources in the text.—Ed.]

1 Deuteronomy 10:12-13; see, especially, Ramban, ad locum.

2Makkot 23b.

3Rosh Hashanna 27a.

4See Rashi, Deuteronomy 10:13 and Maharal, Tiferet Israel, ch. [5]

5Mishne Torah, Shabbat 2:3.

6See, e.g., Divrei Hagut ve-Ha’arakha (Jerusalem, 1982), pp. 270-271.

7See, e.g., U-Vikkashtem mi-Sham in Ish ha-Halakha, Galui ve-Nistar (Jerusalem, 1979), pp. 207-215.

8Mishne Torah, Shabbat 30:14. The context in which the Rambam places this halakha underscores the fact that at issue is an aspect of the mitsva of oneg and not only the fulfillment of obligation to a spouse.

9Gittin 59b. It is not clear from the text as to whether the rejoinder is Abaye’s. Whether ve-kiddashto applies with respect to a levi is in dispute; see Tur Orah Hayyim, 201. If not, the gemara’s question is confined to kohen. For a parallel discussion, see Yevamot 21a.

10Mishne Torah, Hanukka 4:14. Rashi, Shabbat 23b, assumes the ner discussed in the sugya is a Shabbat candle. However, no mention of this appears in the sugya, and the Ritva, ad locum, explains that an ordinary weekday candle is intended. This clearly appears to have been the Rambam’s view as well. Some manuscripts omit the word “ba-olam.” The omission reduces the statement’s sweep but not its substance.

11See Sanhedrin 6b. I take it for granted that R. Elazar, who rejects peshara as an option for bet din, does not deny their role in preserving comity, but only holds that it is superseded by the obligation to absolute truth.

12See Teshuvot ha-Rosh, 108:10. I assume here that these ordinances are mi-de-oraita. This point is in dispute, however. See Rabbenu Hananel, Sanhedrin 7b, and Be’urei ha-Gra, Hoshen Mishpat, 155:8.

13See Yerushalmi, Eruvin, 3:2.

14In some instances, inasmuch as this extraneous factor is the basis, the legal force of whatever is mandated may be reduced, and the ownership generated by it limited. See Gittin 61a, Shevuot 41a, and Bava Metsia 12a.

15See Ketubbot 66a and 96a.

16See Bava Kamma 87a-b.

17Teshuvot ha-Rama, 11. The Rama goes on to cite the concepts of avera lishma and et la’asot la-shem. These terms seem to divert the discussion in another direction, the net effect being the raising of problematic hashkafic and halakhic elements, on the one hand, but significantly circumscribing the scope of the license, on the other.

18See Shabbat 23b.

19Teshuvot ha-Rosh, 107:6 (in Yudlov’s ed., p. 444).

20Hut ha-Meshulash, 8.

21See Yitzhak Zev Kahana, Le-Takkanat Agunot (Jerusalem, 1947), passim.

22109. The principle that leniency should prevail with respect to aguna appears in Hazal, notably, as regards the dispensation with the need for two proper witnesses; see Yevamot 88a and Rambam, Mishne Torah, Gerushin, 13:29. It is strikingly counterbalanced, however, by the far-reaching humra of mayyim she-en lahem sof; the seeming contrast requires some thought.

23Ibid., 62.

24See, inter alia, Berakhot 9a and Shabbat 45a.

25John Henry Newman, Lectures on Certain Difficulties Felt by Anglicans in Submitting to the Catholic Church (London, 1850), p. 199.

26Loc. cit.

27See Bava Metsia 86a.

28See Shalom Rosenberg, Lo ba-Shamayim Hi (Alon Shevut, 1997), passim; and see, particularly, the bibliographic note, p. 9n.

29See Rosh, Pesakim Sanhedrin 4:6; and cf. my remarks in “Legitimization of Modernity,” in Engaging Modernity, ed. Moshe Z. Sokol (Northvale, 1997), pp. 11-14.

30My discussion is based on the assumption that minority views can also be relied upon in crisis, even if the issue is a de-oraita injunction. This is disputable, however. See the references cited in Encyclopaedia Talmudit, 9:260.

31See, however, Nidda 9b, where the gemara states that the principle of bi-sh’at ha-dehak suspends the normal canons of pesika—e.g., the provenance of majority opinions—but does not apply when a minority view has been explicitly and categorically rejected.

32Rav Yosef Dov Soloveitchik, Divrei Hagut ve-Ha’arakha (Jerusalem, 1982), p. 77.

33The teshuva cited is in Malbushei Yom Tov, Even ha-Ezer, 7.

34I have been unable to track down where the pesak appears, but my recollection on this point is clear.

35See Ketubbot 67b.

36It is doubly devalued: 1) halakhically, as the status of meyuhas is generally lacking; and 2) experientially, inasmuch as the positive aspect of avoda is relatively muted, and the confining prohibitions are dominant.

37Kiddushin 41a.

38S.v. asur. See also Mordechai, Ketubot, 179.

39Ishut 3:19.

40Kiddushin 41a. The Rambam, loc. cit., again substitutes en ra’uy for asur.

41See Kiddushin 21b; and cf. Teshuvot ha-Rambam, ed. J. Blau (Jerusalem, 1960), p. 374.

42See Ketubbot 49-50.

43Shevi’it, 10:3.

44Bava Batra 47b.

45Betsa 5b. This is, of course, a very broad subject in its own right, whose proper treatment is well beyond my present scope.

46See Avoda Zara 36a.

47See Betsa 17b-18a where four reasons for the prohibition concerning utensils—and hence, implicitly, for the dispensation concerning persons—are suggested. It is not clear which prevails, le-halakha—or whether, indeed, one needs to choose between them; see Rif and Rosh ad loc. However, the Rambam, Shabbat 23:8, adopted Rava’s view with regard to Shabbat (but cf. Yom Tov, 4: 17-18), and it is to this that the T.H. relates.

48See Resp. 256-7. The logic of this contention should presumably proscribe tevila on Shabbat even if there had been no opportunity to immerse earlier. However, the T.H. does not push the argument this far.

49See Bava Metsia 44a-45b.

50See his comments on Genesis 1:11 and Leviticus 19:19, in which he bases the injunction upon a highly static view of the physical world and upon a very limited and conservative role for man within it.

51See Sefer ha-Agur, Hilkhot Tsitsit, 27. The pesak runs counter to the view prevalent amongst rishonim, and the explanation for it suggested by the Rama, Orah Hayyim 17:2, “ho’il ve-eno hovat gavra,” is rather difficult.

52See Sanhedrin 17a. For Rabbenu Tam, see Tosafot, s.v. she-yode’a.

53Bet ha-Behira, Sanhedrin, p. 55.

54Quoted in Rav Y.I.H. Herzog, ha-Hukka le-Yisrael Al Pi ha-Torah (Jerusalem, 1989), 2:75n.