Two reflections from a wonderful Shabbos

I had the pleasure of hearing Rabbi Dr. Avraham Steinberg speak three times this past Shabbos, on issues related to advances in reproductive medicine and the question of how we define (1) human being, (2) mother, and (3) father. I've read him and many others on these topics before, but live is different, particularly when you are hearing from a person who has discussed these questions with many of the leading halachic authorities of the past forty years.

Listening to the shiurim brought home a couple of key points I have thought about before, but perhaps not as clearly:

1. The hierarchy of halachic authority when dealing with cutting-edge questions

There are people like me, who read as widely as possible and disseminate the information in classes. Our contribution is in making the information accessible, and perhaps, occasionally, raising a question for those higher up to discuss.

On the next rung up are the people who deal with these issues regularly, perhaps professionally, and not only when preparing a shiur. They are fluent in the relevant Torah and technical sources, and they converse with the major halachic authorities of the day. They raise the questions, provide information on the technical issues, study the work of the major halachic authorities and discuss and challenge and debate with them.

On the highest rung are the top halachic authorities. They have achieved this role by dint of their breadth and brilliance, demonstrated in their publications. They possess the creativity and diversity of knowledge to find precedents for dealing with new issues, and the depth of analytical skill to either pick apart those precedents or defend them against challenge.

This is important for someone in my position to remember; there is a real difference between the levels, and it should not be blurred.

2. The centrality of Israel

To the best of my recollection, the only non-Israeli halachic authority from the past 100 years to be mentioned in any of the three presentations was Rabbi Moshe Feinstein – and then only briefly. To my mind, this was not because Rabbi Dr. Steinberg was biased against any of the great halachic authorities of the Diaspora, but because the ones who are dealing with these issues, and publishing articles and teshuvot on them, tend to be in Israel. 

Depressingly, most of the names cited were of authorities who have left this world – Rav Elyashiv, Rav Shlomo Zalman Auerbach, Rav Eliezer Waldenberg, Rav Shaul Yisraeli, Rav Ovadia Yosef, Rav Unterman, Rav Neuwirth… but the point remains strong: This is yet another example of the fact that Jewish life in Israel is strong, and Jewish life outside of Israel is only, as it should be, a satellite.

Yet another reason for aliyah.

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.}