Picking and Choosing Poskim

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by R. Gidon Rothstein

Rosh Chodesh Menachem Av: R. Betzalel Stern on Picking and Choosing Poskim

Posek-shopping is a natural instinct; we want to be told our desired course of action is also an or the appropriate one. Shu”t Betzel HaChochmah 6;29, dated Rosh Chodesh Menachem Av 5747 (1987) takes up the issue, how to choose a posek without predetermining the answer we get.

A Question About Asking Questions

The questioner lived in a city with two rabbinic authorities, known to differ on issues of mar’ot, of how and when spotting and other experiences of blood-flow relate to whether a woman becomes a niddah (or stays one if she’s already in the middle of the experience). In one instance, a questioner showed a piece of cloth with a spot on it to one of the two, who ruled it not evidence of being a niddah. The question then showed it to the other [itself an inappropriate act, as we’ll discuss], who held the spot was blood (and the woman is or continues to be a niddah].

Can the man and his wife listen to the lenient decisor? If not, would they be allowed to were the question one of Rabbinic law?

Asking Two People

Pesachim 52b shows R. Stern a first example of someone asking two different rabbis their opinion. R. Safra left Israel and then realized he had some shemittah wine in his possession. He asked his two traveling companions (R. Huna the son of R. Ika and R. Kahana) whether they had heard from R. Avahu (their teacher) whether he followed R. Shimon b. Elazar’s ruling, which obligated one who brings shemittah produce from outside of Israel to return it to Israel and burn it there.

They gave him conflicting answers, and he decided to follow the lenient report of R. Huna, since he knew R. Huna to be particularly assiduous about learning from his teacher, R. Avahu. R. Yosef was displeased with the incident, and called R. Safra a fulfillment of Hoshe’a 4;12, ‘ami be-‘etzo yishal ve-maklo yagid lo, my nation asks its wood and its staff will tell it [what it should do in various situations; the person is finding the answer he wants, not looking for the truth]. Maklo, R. Yosef says, can be read as “kol hamekeil lo, whoever is more lenient with him.”

Rashi and Ra”h explained R. Yosef’s criticism. R. Avahu had the right to rule leniently, since the unnamed view in a baraita (and therefore presumably the majority) adopts that position. R. Huna the son of R. Ika reported what he heard from his teacher, which was his right, but R. Safra had conflicting reports about how to rule on this issue. Picking the convenient one struck R. Yosef as maklo yagid lo, taking the lenient view from whatever source.

Tzelach (better known as Noda Bi-Yehuda) thought the discussion in Pesachim showed the question of whether to burn shemittah produce taken out of Israel must be a question of Torah law, since we do follow the lenient view on issues of Rabbinic law.

How would R. Safra have defended himself? R. Stern says R. Safra tells us—he followed R. Huna because R. Huna was known to be very careful in reporting what his teacher said. Since R. Avahu was a reputable authority, R. Safra had the right to follow his view, and R. Huna was a qualified reporter of those views. [Of course, R. Kahana reported another view; I think R. Stern is saying R. Safra had good reason to believe R. Huna was accurately reporting what R. Avahu said at some point, and was therefore allowed to follow it.]

When There’s Still Permissible Choice

R. Avahu was choosing sides in a debate which started with tannaim, rabbis of the time of the Mishnah, but he had the right to do so. Any tannaitic debate where no specific ruling was articulated left amoraim the right to rule as seemed correct to them.

That’s even true of the debates between Beit Shammai and Beit Hillel. While we today assume we (almost) always follow Beit Hillel, Eruvin 6b allows following either. The Gemara there criticizes those who always adopt the lenient view of two (such a person is a rasha, an evildoer) or the stringent (a kesil, a fool). On the next page, R. Shizvi permits following a leniency of Beit Shammai on one issue and of Beit Hillel on another as long as the two rulings do not contradict.

Until there’s been a decision, the amora can use his own reasoning to figure out which view seems more correct, and as long as his various choices do not contradict, he’s not an example of maklo yagid lo, leniency-shopping.

Picking Among Decisors

Theoretically, each of us would have the same right, to survey the various halachic opinions and choose the one which seems more correct to us, as long as the two do not contradict and no formal decision process has closed the issue. Unfortunately, most of us are not competent halachic authorities (as the amoraim were), so we cannot assume we know how to distinguish more from less correct. If we choose anyway, or go to one rabbi on one kind of issue and another on another, we might not be the evildoer of whom Eruvin spoke, but it would be maklo yagid lo.

The case before R. Stern is a bit better, because we don’t know how each decisor will rule on specific cases, we only know their tendencies. We might bring a question to the rabbi known to be lenient and he’ll surprise us with a stringent ruling or vice verse.

Too, the more lenient rabbi might have invested more in the study of this set of halachot, making him a sufficiently great expert to protect us from the accusation of leniency shopping. R. Stern says Eruvin 7a permits going to the greater scholar even on a matter of Torah law, regardless of his lenient tendencies. He knows Shach toYoreh De’ah 242 disagreed with his reading of Eruvin. Sha”ch thought only Rashba (of the rishonim) applied this idea to Torah law, Rambam and Semag limited it to Rabbinic law.

But Rema, Choshen Mishpat 25;2, followed Rashba’s view, as did Peri Megadim in his general introduction to his commentary, and Aruch HaShulchan 242;63. Since our case does not yet have actual conflicting rulings, even Sha”ch might have agreed.

Halachah or Facts?

The questioner had also worried about whether niddah questions constitute issues of metzi’ut, of physical facts, which would seem to rule out following the lenient decisor, since he might be contradicting simple physical facts, such as that the stain came from blood. R. Stern points out, however, thinks the phrasing misconstrues what’s going on.

The two decisors agree on the color of the stain, they disagree about how halachah  requires us to respond to such a colored stain [I am not as certain as he is of the facts—I think sometimes one person sees a stain as red and the other as brown, and they would have agreed about the ruling were they to have agreed on the color. On the other hand, the questioner seems to assume the point of color is to verify whether the stain started with blood, where it seems to me the issue is dealt with more technically—color makes her a niddahcolor does not, and we do not have to think about where it started].

Etiquette of Halachic Questioning

The last point R. Stern makes is to reprove the questioner for not telling the second rabbi he had already shown the stain to the first, and the ruling the first one gave. Rema Yoreh De’ah 242;31 allows bringing a question to multiple authorities, as long as the later ones are told what the earlier one(s) said.

Aside from changing how the second one might choose to respond (he might choose to contact the first one and discuss it before answering, for example), it also stops him from contradicting the first on issues of shikkul ha-da’at, judgment calls (a blatant error by the first one has to be dealt with; but the second one’s tendency to rule differently in a gray area would not permit him to contravene the first, and he is required not to).

To summarize (as R. Stern does), people have the right to choose either of two reputable halachic authorities to be their overall halachic decisor, regardless of their general tendencies towards leniency or stringency.  There’s an argument to be made to allow bringing all of one type of question to one of the two, and another kind of topic to the other (since we do not know for sure ahead of time how that decisor will rule); on matters of Torah law, however, it would seem there’s some issue of leniency-shopping in this latter conduct.

Unless the lenient decisor has some advantage over the stringent one, such as particular expertise in that topic area. 

The rules just stated are for those of us who are not competent halachic authorities in our own right. A competent Torah scholar has every right to investigate an issue and rule on disputes that have not yet been firmly decided one way or other, as long as his lenient rulings do not place him in self-contradiction [R. Stern does not elaborate, but he means such as ruling like Beit Hillel or Beit Shammai before a principle was laid down; today, that would likely include not ruling against Shulchan Aruch, but might include deciding about current issues on which even greater Torah scholars were still in disagreement].

As long as we’re not shaping halachah in our own image, are searching for a valid reading of the truth of Torah, we’re not running afoul of the derogated maklo yagid lo.

About Gidon Rothstein

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