Why Rabbis cannot agree on Halachah [sometimes]

[Post I’m reading: On Halakhic Integrity: A Reaction to Gordon and Levy at My Obiter Dicta]

This past Sunday night, I participated in a panel discussion on the topic of “Determining Death: The Brain Death Controversy and Organ Donation in the Jewish Community”. My primary goal, in my allotted 20 minutes, was to explain why this is such an intractable issue; there was no way I could actually go through the sources and debates in anything like that time, but I felt this was a good goal as well. [You can listen to my audio here.]

I identified four elements which I believe are necessary, in order to establish halachic consensus in any matter of law:
1. A clear understanding of our traditional sources
2. A clear understanding of physical reality
3. A culture that encourages healthy debate
4. A compelling argument

A clear understanding of our traditional sources
We need a clear understanding of the traditional sources, in order to develop an approach which is consistent with those sources.

A clear understanding of physical reality
We need a clear understanding of physical reality, in order to understand the circumstances in which halachah is operating, and to be able to apply halachic considerations to the specific cases involved.

A culture that encourages healthy debate
We need a culture that encourages healthy debate so that rabbis will be able to take positions or change positions, challenge ideas and receive serious replies.

A compelling argument
And we need a compelling argument that says, “We need to go this route,” when matters are not entirely clear or unanimous. Halachah is inherently conservative [ ברי ושמא ברי עדיף, שב ואל תעשה עדיף and so on], and quite comfortable saying, “I don’t know.” In order to move from “I don’t know” or “Better not” to a practical verdict of action in a case of uncertainty, there must be a compelling reason to do so – pikuach nefesh, for example.

In the Brain Death issue, we have none of the above.
1. The primary sources themselves are complex, and certainly appear contradictory.
2. Most of the responsa with which today's rabbis wrestle were written at a time when the scientific data on the state of the brain during "brain death" was still evolving - indeed, many argue it is still evolving today.
3. The discussion is taking place against a backdrop of acrimonious accusations and a resulting defensiveness.
4. The compelling arguments on each side balance each other out - Pikuach Nefesh is used on both sides. And the cases themselves are rare enough that the issue isn't coming up daily, to demand resolution.

I believe this Set of 4 applies beyond the Brain Death issue; we can apply this to any number of on-going debates in the Jewish community, from Conversion to Use of Electricity on Shabbat to the Role of Women in the Synagogue.

If we have these four elements present, we’ll see a conclusion. Otherwise, we’re likely to be left with a תיקו [“Let the debate stand”]. {Which isn’t always a bad thing.}