Chaim I. Waxman

Professor Waxman teaches in the Department of Sociologyat Rutgers University.

TOWARD A SOCIOLOGY OF PSAK

This article is entitled, "Toward a Sociology of Psak," for several rea-sons. One is to emphasize its tentative nature. Rather than definitive, it isintended to be suggestive, both in terms of the realm of the subject matterand any and all specific issues which the article raises.

Secondly, it is by no means exhaustive. Rather, it points to a varietyof areas and issues which might well belong in a sociology of psak, butclearly there are many others which have not even touched upon. Hope-fully, this article wil stimulate further deliberation which will lead tobroader and deeper analyses of the entire area. Ideally, a sociology of psakshould include, as a beginning, an analysis of the role of the social in psak,such as the role of social conditions in the determination of halakhah; thesocial factors which influence who is viewed as the posek, in general andin particular; and an analysis of which segments in the community arelikely to seek out psak and from whom.

To some, the whole notion of a sociology of psak is hereticaL. AsHaym Soloveitchik suggests, "If law is conceived of, as religious lawmust be, as a revelation of the divine will, then any attempt to align thatwill with human wants, any attempt to have reality control rather than tobe itself controlled by the divine norm, is an act of blasphemy andinconceivable to a God-fearing man."!

If not necessarily heretical, the notion of a sociology of psak might atleast be viewed as inherently untenable because the very phrase is viewedas a contradiction in terms. As some see it, to speak of psak is to speak ofpure halakhah, which is rendered solely on the characteristics of thespecific case involved. It is rendered by a pasek, an expert in halakhah onthe basis of principles which are centuries old, in an almost scientific

This article is a revision of a paper delivered at the Orthodox Forum, sponsored by YeshivaUniversity, which was held at The Jewish Center, New York City, September 10-n, 1989. The criticalcomments of the participants in that forum, and especially Rabbi Emanuel Feldman, who chaired thesession in which it was presented, as well as those of Rabbis Chaim Bronstein and Ari Waxman on anearlier draft of the paper, are greatly appreciated.

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manner, and is impervious to either social forces or social patterns. Thegreater the knowledge of the posek, the more widely known and acceptedwil his psakim be. It is as simple and as complex as that.

Such an understanding of psak is probably widespread in whatHelmreich calls "the world of the Yeshiva, "2 but might also be inferredfrom the writings of certain "centrist" authorities as well. For example, itcan readily be read into the writings of David Bleich, although he maywell not subscribe to such a view. At least at first glance, Bleich appears toconcur when he writes:

The ability to formulate definitive psak is the product of highly specialized skils. Itis in choosing between conflicting precedents and opinions that the consummateexpertise of the decisor is apparent. The decisor . . . must carefully weigh notmerely on the basis of sheer number but also on the relative stature of the scholarswhose opinions are under consideration, and must at the same time assess thecomplexities and relative importance of any number of component factors.3

Despite the tendency, particularly within the right-wing Orthodoxcommunities, for an almost reflex-action rejection of the role of socialforces in psak, the more carefully one considers the issue the more it isapparent that poskim are not simply computers and that, indeed, there aremany social forces which enter into psak, both in terms of specific rulingsmade for individual cases and in terms of who is recognized at any giventime as a reputable pasek. Nor is this an issue over which there is anyimplicit dispute between learned "right-wingers" and "modernists." Afew examples from history should suffice to indicate the role of socialforces and conditions in psak.

Probably the most often cited example is that of the prozbul, insti-tuted by Hillel, lest Jews cease lending money to their fellow Jews.However, within the context of this paper that is probably also the leasteffective example because that case has been most frequently abused andserved as part of the legitimation for unacceptable reform.4 Indeed, it

might be suggested that one of the strongest barriers to the developmentof a sociology of psak is the well-founded fear that the mere suggestionthat social factors can influence psak may lend support to those who seekto have social factors be the determinants of psak. 5 It should, therefore, bestated at the outset that no such argument is intended herein. Such anargument is to be rejected not solely on ideological grounds; I wouldargue that an empirical examination of the psakim of the most widelyaccepted poskim in this and every other generation would find that it issimply not true that social factors alone determine halakhah.6 On the otherhand, that same examination would uncover numerous instances wheresocial conditions affected halakhah. For example, the concept of "hefsedmeruba (great financial loss)" is the basis for lenient halakhic decisions,not only those involving rabbinic prohibitions (issurei d'Rabbanan) but,

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apparently, in several involving Torah prohibitions (issurei d'Oreita), aswell.? Although hefsed meruba alone is clearly not a valid basis fordetermining psak, it can influence halakhic decisions in that it can providethe necessary basis for adopting a minority halakhic position, one whichotherwise would not be adopted.

But it was not only in the case of great economic loss that thehalakhah took the situation into account. Ephraim Urbach cites a numberof the Tosafists who adopted rather lenient stances on matters dealing notonly with the permissiblity of engaging in commercial enterprises withChristians but also in dealing in those objects which would overtlycontribute to religious worshipping in Christianity.s

Likewise, without entering into the details of their application, thereare also such principles as "eit laasot laShem, heferu Tora tekh a, " whichallows the actual breaking of a Torah law in order to preserve the corpus,and the dictum that "ein gozrin gezeirah im ezn rov hatzibur yekholin

laamod bo," an edict which is not capable of being complied with by themajority of the community cannot be pronounced. Although the latterpertains only to the enactment of an edict, not to its specific applicabiltyonce the edict is enacted, both of the principles cited, as well as numerousothers, clearly indicate that the social is, indeed, a very important factor inhalakhah.

Nor is it only with reference to economic factors that the the socialplays a role in psak. Haym Soloveitchik deals at length with the issues ofsuicide and the killing of one's children in the face of forced apostacy inthe Ashkenazic community during the period of the Crusades. Althoughheretofore "one knows of no allowance for committing suicide to avoidforced conversion," the scholars of the Ashenazic communities

evolved, in the course of times, a doctrine of the permissibility of voluntarymartyrdom, and even allowing suicide. They did this by scrounging all the can-onized and semi-canonized literature for supportive tales and hortatory aggadah, allof dubious legal worth. But by massing them together, Ashkenazic scholars pro-duced, with a few deft twists, a tenable if not quite persuasive case for thepermissibility of suicide in times of religious persecution. For murder of one'schildren few could find a defense, and almost all passed that over in audiblesilence.9

Neither that case nor those cited previously should be mistaken asproviding the basis for virtually unlimited freedom to revise halakhah inaccordance with perceived needs at any given time. The innovations ofthe Ashkenazic scholars were not undertaken to conform with thedemands of an increasingly secularized community. On the contrary, "theFranco-German community was permeated by a profound sense of itsown religiosity, and of the rightness of its traditions, and could notimagine any sharp difference between its practices and the law which itsmembers studied and observed with such devotion." 10 The condition of

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Ashkenazic Jewry since the enlightenment is radically different and, thus,the stances of its scholars have frequently been quite different.

Nevertheless, even within the twentieth century, there have beenoccasions when the most outstanding poskim supported major change

based on contemporary social conditions. Consider, for example, that noless a figure than Hafetz Hayyim-who was neither a "modernist" nor a"centrist" -declared that the prohibition against teaching of Torah towomen is no longer relevant today because of the social conditions of thepresent: "All the doubts about the prohibition of teaching one's daughterTorah are without basis and cause for apprehension in our days (" einshum be it mihush lazeh beyameinu eileh") because our generation isdifferent from previous generations where every Jewish home had atradition to follow the path of the Torah . . ." 11

It should be emphasized that this is not meant to suggest that thateither Rambam or Hafetz Hayyim maintained that halakhah is actuallydetermined or even influenced by environmental or sociological factors.Rather, they would have undoubtedly insisted, when a particular halakhahvaries from time to time and place to place, it is only so because its veryapplicability may change under certain changing conditions. That is, thehalakhah as originally conceived applied in one way under conditions Xand in another way under conditions Y. In all cases, however, they wouldhave insisted, every psak derives from traditional objective process ofhalakhic decision-making.12

Nevertheless, as suggested initially, Orthodoxy in general, and espe-cially its more traditionalist, haredi, or "right- wing" components, wouldhave an instinctive negative reaction to the notion of a sociology of psak.In part, this is probably related to the nature of contemporary Orthodoxreligiosity which, somewhat similar to the Ashkenazic community of thetwelfth and thirteenth centuries, is characterized by the "simplicity ofreligious belief." 13 The further right one goes along the Orthodox spec-trum, the less is the concern with religious philosophy. Religion is hala-khah, and halakhah has a self- evident, taken-for-granted status. "It is sobecause it is so." Halakhah is mesorah, traditon, which Moshe Rabbeinugave to Yehoshua, who in turn gave it to the Judges, until it reaches us.

But there is another way in which the social affects psak, and withthis the more right-wing components would probably have no disagree-ment. That is, when the socially-accepted is even more "rigorous,""stringent," mahmir, than strict halakhah requires, the socially acceptednorms become part of the psak process. There is nothing new in thisdevelopment; as Soloveitchik points out, it was prevalent in Ashkenazduring the era of the Tosafists.14 There is, however, one basic differencebetween more stringent behavior of the masses in Ashkenaz and thepattern which is prevalent in contemporary Orthodoxy, and that is thattoday there is a conscious, almost ideological, drive to be more mahmir,

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more stringent, in the observance of certain areas of halakhah. To someextent, this is what Rabbi Simcha Elberg, the editor of Hapardes, theoldest extant Torah journal in the United States, and a prolific writer whoespouses right-wing Orthodoxy, had in mind when he described "BneiBrakism. "

The character and stature of Bnei Brak express themselves not only in religiosityand traditional piety. . . it consists of its own unique and independent approach. . .A yeshiva student under the spiritual influence of the Hazon Ish of Bnei Brakactually lives and breathes the Shulhan Arukh with all of its humrot (stringencies).When he takes the Shulhan Arukh to look up any question, his perspective is towardthe mahmžr, and he wil neither seek out nor favor the more lenient opinion. Hisintention is not to be lenient but to be more stringent. He constantly makes an effortto search and dig, perhaps one of the commentaries tends toward greater stringency.And when he finds a more stringent opinion, it is as if his very being was refreshedand rejuvenated, and this humra becomes the norm which he established in hishome and which he realized in his daily life.15

Elberg attributes the growth of "Bnei Brakism" to the continuinginfluence of the powerful, almost charismatic quality of the late Rabbi

Avraham Yeshayahu Karelitz, "Hazon Ish" (1878-1953). Hazon Ish wasone of the most widely revered halakhic authorities in his time and,although many of his rulings were lenient, his disciples tended to emphas-ize and follow his more stringent rulings as the norm. The most obviousexamples are those which relate to the measurements required in thefulfillment of certain mitzvot, especially wine and matza at the Seder onPesach.16

Menachem Friedman astutely argues that the source of Bnei Brakismgoes far beyond that of any individual, even one so influential as HazonIsh. Rather, he suggests, its source is to be found in the very structure andculture of the higher yeshiva, the yeshiva gedola, of the Eastern Europeantype of which the model is the yeshiva in Volozhin. Among its manyfeatures, the yeshiva gedola "is a total-like institution whose students are,for the most part, alienated from their surroundings and cut off from theirfamilies for most of the year, as a result of which they are united amongstthemselves, especially around the figure of the rosh yeshiva (head of theyeshiva) and his family."17

Although not in quite the same way as Friedman, I would argue thatit is these two characteristics of the "world of the yeshiva," which havegrown significantly in the United States and in Israel since World War II,which account for much of the widely-observed "shift to the right" withinOrthodoxy, and has determined the trend of accepted psak. Specifically,the fact that the yeshiva students are separated from their families and theoutside world means that the regular relationship with those traditionalsources of social control, that is, socialization and influence, is broken.Within the yeshiva, it is the rash yeshiva who is the central authorityfigure, and it is he who determines the proper norms of behavior.

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What this means is that, whereas historically, the traditions of boththe family and the local community played a central role in setting thestandards of proper behavior within the religious realm-minhag, custom,often took on the authority of halakhah 18-with the growth of the yeshivagedola a new pattern emerged. The rosh yeshiva now determines properbehavioral norms, and the folkways and mores of the family and localcommunity are often not taken very seriously. Likewise, whereas tradi-tionally the local rav was the halakhic authority for his community, theemergence of the yeshiva gedola resulted in a growing struggle betweenthe rav and rosh yeshiva for halakhic authority.

To clarify and amplify this last point, mention must be made of oneof its other basic features. As Friedman points out, the yeshiva gedola ofthe Volozhin type "is not an institution of the community, but rather aneconomically independent organization supported by the contributions ofindividuals from many regions." Also, "the vast majority of the yeshivastudents are not from the community but come from near and far for thepurpose of studying there." i 9

Until the beginning of the nineteenth century, there was no strugglebetween rav and rosh yeshiva because the yeshiva was a local institutionand the rav and rosh yeshiva were usually one and the same. Not only didthose two roles not conflict with each other, they most frequently aug-mented each other and compensated for conflicts in other areas. As JacobKatz analyzed the pre- nineteenth century yeshiva:

The identity of purpose of the rabbi and yeshiva head, which was customary in thisperiod, was another typical feature. . . Since the nucleus of the yeshiva consisted ofstudents whose only loyalty was to their rabbinic head, an atmosphere was createdconducive to the creation of a close personal link between them. These circum-stances facilitated the formation of an educational framework of an unusuallyintensive nature. The combining of the tasks of president of the local rabbinic courtand yeshiva head decreased rather than increased the prospects that this wouldhappen. The advancement of the yeshiva was, after all, only one of the rabbi's manytasks. . . The relationship of the kehila to the rabbi, which was not lacking inconflict and tension, was likely, for its part, to have its equilbrium restored throughthe halo which surrounded the rabbi in the line of his yeshiva duties. The honoraccorded the rabbi as head of the yeshiva and as disseminator of learning among thepeople, values that were universally esteemed, also strenghtened his hand as hecarried out his function as arbiter of the values of the entire community.20

By the nineteenth century, when R. Hayyim of Volozhin (1749-1821)established the yeshiva there in 1802, the basic roles had changed becausethe relationships were radically altered. Although R. Hayyim was therabbi of Volozhin, when he wanted to establish a yeshiva there he wentoutside of his community for the requisite financial resources.21 Althoughthat is the common pattern today, and many strong arguments can bemade in its defense (such as that it eases the financial burden of the localcommunity), the fact is that this new pattern radically restructured some

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of the basic relationships within the traditional Jewish community. Specif-ically, it restructured the nature of the relationship between the yeshivaand the local community, between the head of the yeshiva, the roshyeshiva, and the local community, and between rosh yeshiva and therabbi. The broadening of the base of financial support for the yeshivameant that the yeshiva was no longer under the direct control of thecommunity within which it was located, that the rosh yeshiva, too, wasnow much more independent of the local community, and that not onlywere the rosh yeshiva and rabbi not one and the same, they were nowpotentially in conflict with one another for the loyalties of the members ofthe community as well as for those of the yeshiva students from within thecommunity. Not infrequently, each attempted to enhance his own statureat the expense of the other. Within this development, the tendency towardstringency, humra, played a special role in that the more stringent ruling isfrequently posited as and viewed as the more "authentic" one.22

Several related points should be made at this point with respect to theapproach to and the use of humra. Although the vast majority of authori-ties define it, at most, as within the realm of rabbinic law, the authority toinstitute stringencies is defined as rooted in the Torah, deriving from thedictum, "asu mishmeret lemishmarti." Thus, rabbinic leaders in eachgeneration have not hesitated to impose restrictions when they deemedthem to be necessary to prevent the further deterioration of religious life.Since many of the traditional rabbinic leaders viewed modernity itself asthreatening, they not infrequently instituted stringencies against any inno-vations simply because the innovations themselves were deemed to beinherently destructive. The classic statement in this regard is probably thatof Rabbi Moses Sofer, the Hatam Sofer, who, by way of a pun, declared-"hadash assur min HaTorah" -that all innovations are prohibited by theTorah.23 Be that as it may, he opposed all innovations and frequentlyadopted stringencies, particularly in opposition to the nascent movementto reform Judaism.24 Following the lead of Hatam Sofer, traditionalistswho are ideologically opposed to modernity and all innovations legitimatetheir opposition and the stringencies imposed under that same banner.This is possibly one of the major reasons for the greater Orthodox

militancy in Hungary than in Russia during the nineteenth century. Specif-ically, the impact of modernity and secularization were already being feltin Hungary at the end of the eighteenth century, whereas they did notmanifest themselves in Russia almost until the twentieth century.

Although the number of yeshivot gedolot grew significantly through-out Eastern Europe in the nineteenth and early twentieth centuries,25 themost dramatic growth in both the number of such institutions and thenumber of students learning in them has occurred within the past threedecades of the twentieth century. In 1945, there were nine yeshiva highschools in United States; thirty years later, in 1975, the figure grew to

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138.26 On the post-high school level, the growth is even more dramatic,and it is at its greatest with respect to kolleZim. By 1976, David Singersuggested, "the number of students. . . studying Talmud on an advancedlevel. . . (compared) quite favorably with the number who were enrolledin the great yeshivot of Eastern Europe during their heyday-and thisdespite the fact that the yeshivot have made no concessions to modernity,and few to the American environment. "27

Within the context of this paper, all of this has meant the growth ofright-wing or "sectarian" Orthodoxy-the "yeshiva world" is, over-whelmingly, the world of right-wing Orthodoxy-and the growth of theperspective which is more punctilious and stringent, both in terms of psakand in terms of observance. To clarify and demonstrate this point, it isnow necessary to distinguish between two types of Modern Orthodoxy.One may be called philosophical, while the other is more appropriatelycharacterized as behavioraL. Within the category of philosophical ModernOrthodox (or "Centrist Orthodox") would be those who are meticulouslyobservant of halakhah but are, nevertheless, philosophically modern.Within this context, being modern means, at minimum, having a positiveperspective on general education and knowledge and being positivelydisposed to Israel and religious Zionism.

The behaviorally Modern Orthodox, on the other hand, are notdeeply concerned with philosophical ideas about either modernity orreligious Zionism. By and large, they define themselves as ModernOrthodox in the sense that they are not meticulously observant. In manyways, their definition of themselves as Modern Orthodox has the samebasis as did those whom Marshall Sklare found to define themselves asConservative. That is, when asked, "What do you mean when you sayyou are Conservative?," the responses were, typically: "Now-I'd guessyou'd call it middle of the road, as far as (not) being as strict as theOrthodox, yet not quite as Reformed as the Reformed," or ." . . I don'tlike the old-fashioned type, or the Reform. I'm between the two ofthem. "28 Similarly, most of those who define themselves as ModernOrthodox do so in reference to right-wing or "sectarian" Orthodoxy, andthey define themselves as modern in the sense that they are not asobservant. As Heilman and Cohen put it,

Others, the so-called "Modern Orthodox," have tried to find a way of remaininglinked to the contemporary non-Jewish world in which they find themselves and tothe traditions and practices of Judaism to which they remain loyaL. For some, thishas meant little more than a nominal attachment to Orthodoxy while for others ithas meant little more than a partial attachment to the demands of the tradition.29

Lest it be argued that Heilman and Cohen's description is in itselfideological but that it would not hold up under careful examination, theydo, in fact, present empirical evidence to substantiate their assertion.

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Using a range of ritual practices, they demonstrate that the traditionalists,those on the right, are consistently much more observant than are thosewho identify themselves as centrist or modern.3D Much as the ideologicalModern Orthodox may protest and argue that they disapprove of theprevalent laxity of ritual practice as much as do those on the right, the factremains that the majority of those who define themselves as ModernOrthodox are of the behavioral category and are considerably less carefulabout ritual observance than are those on the right.

The implications of all of this for psak should by now be evident.Specifically, the yeshiva is likely to produce an individual who is morepunctilious in observance and who is likely to adopt a more stringentpattern of religious behavior. The number of yeshivot and the number ofstudents learning in them has grown dramatically. They are much morelikely to turn to their rosh yeshiva on halakhic matters, and he is morelikely to adopt a more stringent stance on practical issues than is the rabbiof the community. (This may be due to many factors: he may be lessvulnerable to community pressures; he may be possessed of deeperlearning than the communal rabbi; he may have less contact with dailycommunal issues). Furthermore, the sectarian, or right-wing componentof Orthodoxy has much more of a say in whose psakim are accepted sinceits followers are more observant and are, therefore, the ones who aremuch more likely to abide by those halakhic decisions.

A further element which adds to the virtual monopoly of the right indetermining who is the posek is its communal organization. Structurally,sectarian Orthodoxy is much more organized, at least potentially so, thanis Modern Orthodoxy in a number of respects. The more right-wingcomponents are more likely to live in intensively sectarian Orthodoxcommunities. Although unofficial, there is a strong tie between the"yeshiva world" and Agudat Israel of America, which is not only apolitical organization but a vast social welfare agency as well. And thereis nothing in the Modern Orthodox community which comes even close tothat kind of organization. Thus, not only in terms of its educational

institutions, the yeshivot, but also in terms of its broader political andsocial welfare institutions, the more right-wing component has a muchfirmer structural base than does Modern Orthodoxy. And, since sectarianOrthodoxy can demand the loyalty of its adherents on religious grounds,they are, in fact, much more loyal to their leaders than are the ModernOrthodox.

Finally, no analysis would be complete without some attention givento the role of technology both in the diffusion of psak into and through thelarger Orthodox community and on the statuses of poskim. One stands inawe at the speed with which halakhic decisions are spread through thepopulation today compared with, say, a century ago. Many more religiousbooks, sefarim, are published today than ever before, and many individual

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Orthodox Jews have the financial ability to purchase those sefarim, andthey do. This is a very important aspect of the sociology of psak because,as in all fields of knowledge, it is the scholar whose works are known whohas the best chance of being recognized as an authority. Publishing iscrucial to the process of being known.

This, of course, does not mean that publishing is either a prerequisiteor a guarantee. On the one hand, there are and have been some "world-class" poskim who have not published widely. On the other hand, thereare some widely published poskim who are, neverthless, not uniformlyrecognized as authoritative. Obviously, there are many other factors, suchas breadth and depth of learning, rigorousness of analysis, perceived yiratshamayim ("fear of God"), that are prerequisites for being accepted as aposek. But publishing is an increasingly important means by which thosequalities are widely recognized; it allows a much wider community ofscholars to see the scholarship of the posek. Therefore, all other thingsbeing equal, the posek who publishes wil likely become much moreauthoritative than the one who does not.

In addition to the more traditional sefarim of the yeshiva world, thereis a whole new type of Orthodox Jewish book being published today.However one may judge the intellectual quality of most of the bookspublished by ArtScroll,31 there can be no question of the major impact ofwhat may be termed the" ArtScroll phenomenon." It most assuredly doesenhance the sectarian perspective. In addition, it has probably also ledsome who might have otherwise been completely ignorant of Jewishlearning to become aware of some aspects of it and, presumably, to seekout authorities for both Torah knowledge per se and for halakhic guidanceas welL.

There also exists today a series of English-language periodicals

which often serve as vehicles for the dissemination of psak. Among theseare the Journal of Halacha and Contemporary Society, Tradition, theJewish Observer, and even the Jewish Press. Periodicals such as these aresignificant not only in terms of the speed with which they are able tocommunicate psak, but also for the size of the audience to whom theycommunicate. Obviously they vary, and the Jewish Press is read by manymore than read the Jewish Observer which, in turn, is probably read bymany more than read either Tradition or the Journal of Halacha andContemporary Society. Nevertheless, if one were to compare the numberof people reading such periodicals today with the number reading similarperiodicals several decades ago, it is virtually certain that the numbershave grown significantly.

In addition to the printed media, the advent of the telephone hasundoubtedly had great impact on the dissemination of psak. In brief, onecan simply pick up the telephone and immediately get an answer to

virtually any halakhic question (assuming, of course, that it is the kind of

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question for which an immediate answer is actually appropriate). In thatway, halakhic decisions are publicized worldwide almost instantaneously.

Although this has many obvious benefits, the instant communicationof psak may also have negative consequence on psak itself. Because apsak can longer be considered a private, individual or even local commu-nity matter, some poskim-though probably not the "giants" amongthem-may be more cautious. They may even be hesitant to open them-selves up to such potentially broad criticism, or at least to criticism fromsuch a broad public. Although such cases may be relatively rare, they dooccur periodically, particularly when the specific issue has become part ofa larger, religio-political struggle. The possibility and, indeed, likelihoodof instant communications in such cases could feasibly inhibit psak andcause the posek to be much more consensus-oriented than he mightotherwise be. In essence, he and his followers may become "victims" ofthe politics of psak.

Returning to the issue of the community rabbi, all of these develop-ments have had impact upon his position. Aside from the already dis-cussed tendency to consult with a rosh yeshiva rather than a communityrabbi, with the increase in the numbers of those who studied in yeshivotgedolot, there are now more yeshiva- educated laymen who may feelcompetent to render psak on their own without consulting with anyoneelse, especially a community rabbi. Not only have they learned in in theyeshivot, they have the necessary tools-the sefarim-in their own

libraries. And, should there arise a case in which they might not feelcompetent to render a psak, they can easily obtain a telephonic decisionfrom the one whom they feel is the best authority.

Lest it appear that" these developments have had a solely negativeimpact on the status of rabbi as posek, it should be emphasized that rabbis,too, are able to take advantage of these same tools. Community rabbis cannow much more easily turn to their halakhic mentors for psak and nothave to wait the weeks and even months that that might have taken in thepast.

Also, the fact that there is a larger community of yeshiva alumni mayresult in the emergence of a new type of rabbi in the United States, onemuch more similar to that of the past. That is, more congregations mayseek out rabbis who are, in fact, primarily Torah scholars and authoritiesin the world of psak, rather than being broader communal workers. If so,we may yet see a realignment and much closer interaction between rabbiand rosh yeshiva, and a continued shifting of the parameters of thesociology of psak.

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NOTES

1. Haym Soloveitchik, "Religious Law and Change: The Medieval Ashkenazic Example," AJSReview 12:2 (Fall), 1987: 205.

2. Wiliam B. Helmreich, The World of the Yeshiva (New York: Free Press, 1983). This is the"world" known as the haredi, "black-hat," "right-wing," or "ultra-Orthodox" community.Actually, He1mreich also includes Yeshiva University's Rabbi Isaac EIchanan Theological

Seminary (RIETS) in his analysis. However, RIETS is clearly peripheral the the world of theyeshiva and not considered as part of that world by the overwhelming majority of that world. Ashe suggests, it "is viewed by many in the other major yeshivas as not being part of thecommunity because it not only permits secular education but maintains a college on its campusthat is a required part of study for all undergraduates." (p. 36)

3. J. David Bleich, Contemporary Halakhic Problems (New York: Ktav and Yeshiva UniversityPress, 1977), p. xvii.

4. A case in point: Michael A. Meyer, in his comprehensive work, Response to Modernity: A

History of the Reform Movement in Judaism (New York: Oxford University Press, 1988) beginswith a discussion of the precedents for reform and specifically cites the case of prozbul (p. 5).

5. Such a stance is the basis of the argument of David E. Ostrich, "Creativity in the Halachah,"Sh'ma 17/339 (Oct. 16, 1987), pp. 147-48.

6. Cf., Emanuel Feldman's response to Ostrich's assertions, "The Torah, More God's Law ThanOurs," Sh'ma, loco cit., pp. 148-50.

7. Cf., Eliezer Berkovitz, HaHalakhah: Kokhah Vetafkidah (Jerusalem: Mossad Harav Kook, 1981),pp. 64-74. Also see Jacob Katz, The Sabbath Gentile: The Socio-Economic and Halakhic

Background of the Employment of Gentiles on Jewish Sabbaths and Festivals (in Hebrew)(Jerusalem: Zalman Shazar Center, 1983).

8. Ephraim E. Urbach, Baalei HaTosafot: Toldoteihem, Hibureihem, Shitatam, 4th expanded ed.

(Jerusalem: Bialik Institute, 5740), VoL. 1, pp. 350-52. Earlier, in his discussion of Raban'shaving permitted the selling of clothing and other objects to non-Jews and even priests despitethe possibility that they might be used in the service of Christian worship, Urbach starkly assertsthat even though Raban does derive the permission from Talmudic discourses, "the conditions ofthe situation were those which forced upon him the derivations and distinctions." (Ibid., p. 177.For a critique of Urbach's assertion, see Jacob Katz, Halakhah and Kabbalah: Studies in theHistory of Jewish Religion, its Various Faces and Social Relevance (in Hebrew) (Jerusalem:Magnes Press, 1986), pp. 340-49. Also see Soloveitchik, "Religious Law and Change,"pp. 207-21; Avraham Grossman, The Early Sages of Ashkenaz: Their Lives, Leadership andWorks (900-1096) (in Hebrew) (Jerusalem: Magnes Press, 1981), pp. 126-27.

9. Soloveitchik, "Religious Law and Change," pp. 208-1010. Ibid., pp. 211-12.

11. Israel Meir HaCohen, "Letter to the Supporters of Torah in the City of Pristik," 23 Shvat, 5693(Feb. 19. 1933). Reprinted in Dos Yiddishe Vort 31 (No. 252, March (Adar-Nissan 5745)), 1985,p. 51. In his Likutei Halakhot (VoL. 2, Sotah (Jerusalem: Sacks Family, circa 1980), pp. 21-22),where the text mentions that, a priori (lekhathila), one should not even teach one's daughter thewritten Torah (Torah Shebikhtav), Hafetz Hayyim asserts that that no longer applies. On thecontrary, he says, "in our time. . . parental traditions have become very, very weak, and it iscommon that one does not at all live in the same place as one's parents, and especially sincefemales take courses to learn to read and write in the languages of the nations, it is definitely agreat mitzvah to teach them Humash, Nevíím and Ketuvim, as well as ethical works of Haza"l,such as the Tractate Avot, Menorat Hamaor, and the like. . ."

12. See the quote from David Bleich below. For evidence of the sensitivity of this issue withincontemporary Orthodox rabbinic circles, see the exchange between Rabbis Dovid Cohen andIsrael Poleyeff, Journal of Halacha and Contemporary Society 15 (Spring), 1988, pp. 125-28. Butthe matter actually seems more complex than that. There do appear to be situations in whichconditions do affect psak. Specifically, certain social conditions may affect the degree to whichone seeks a more lenient position, a heter. For example, virtually every halakhic authority assertsthat conversion for the sake of marriage, especially where it is evident that the individualinvolved wil not be an observant Jew, is invalid. Nevertheless, it is common practice in Israeland even with many sectarian Orthodox rabbis of considerable stature to attempt to convince the

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non-Jewish spouse in an intermarriage to convert. For a survey an analysis of responsa on thisissue, see David Ellenson, "Representative Orthodox Responsa on Conversion and Intermarriagein the Contemporary Era," Jewish Social Studies 47: 3-4 (Summer-Fall), 1985, pp. 209-20.

13. That is how Soloveitchik characterized the Ashkenazic community. See his "Religious Law andChange," p. 213.

14. Ibid., p. 220.

15. Editorial, Hapardes 38:3 (Kislev 5724 (Nov.-Dec.)), 1963: 5 (in Hebrew). For a somewhatdifferent rendition of Elberg's concept, based perhaps on the translation of another version of theElberg editorial which also appeared in the Israeli Agudat Israel periodical, Digleinu, KIslev-Tevet 5725, see Menachem Friedman, "Life Tradition and Book Tradition in the Development ofUltraorthodox Judaism, in Harvey E. Goldberg, ed., Judaism Viewed From Within and FromWithout: Anthropological Studies (Albany: State University of New York Press, 1987), p. 235.

16. Friedman, "Life Tradition and Book Tradition," pp. 236-38. Also see David Singer, "Thumbsand Eggs," Moment 3: 9 (Sept.), 1978, pp. 36-37.

17. Friedman, p. 242. For further developments in his analysis of the the implications of the yeshivagedola of the Volozhin type, see Menachem Friedman, "Haredim Confront the Modern City," inPeter Y. Medding, ed., Studies in Contemporary Jewry, VoL. 2 (Bloomington: Indiana University

Press, 1986), pp. 74-96; Menachem Friedman, "Mifgash Yahadut Torah 1m Derekh Eretz 1mHaharediut Hamizrah Eiropit," in Mordechai Breuer, ed., Torah 1m Derekh Eretz Movement (inHebrew) (Ramat Gan, Israel: Bar-I1an University Press, 1987), pp. 173-78.

18. On the status of minhag, see Yedidya Alter Dinari, The Rabbis of Germany and Austria at theClose of the Middle Ages: Their Conceptions and Halakha-Writings (in Hebrew) (Jerusalem:Bialik Institute, 1984), pp. 190-228.

19. Friedman, "Life Tradition and Book Tradition," p. 242. Emphasis added.20. Jacob Katz, Tradition and Crisis: Jewish Society at the End of the Middle Ages (New York:

Schocken Books, 1971), pp. 197-98.21. On the founding of the yeshiva in Volozhin, see S. Shtampfer, Shalosh Yeshivot Litaiot Bameah

Hatesha Esrei (Ph.D. Diss.: Hebrew University of Jerusalem, 1981), pp. 12ff; Samuel K. Mirsky,Mosdot Torah B'Eiropah Bevinyanam U'vehurbanam (New York: Histadrut Halvrit BeAmerica,1956).

22. Cf. R. Yeshayahu Horowitz (1565-1630) (a.k.a. "Shelah Hakadosh"), Shnei Luhot Habrit

(Jerusalem: 5735 (1975), VoL. 1, p. 19a, wherein the author gives a somewhat mystical reason forwhat he describes as the continuously increasing prevalence of sin. The increasing prevalence ofsin, he says, is actually the constantly spreading venom of the snake for which he prescribeshumrot, stringencies, as the "antitoxin" and defines them not as rabbinic stringencies but ashumrot ordained by the Torah: "Therefore, in each generation when it is proper to addstringencies, then all of that is from the Torah (mideoreita)." Although both Menachem Fried-man and I emphasize the role of the yeshiva movement in the tendency toward humra, I amgrateful to Rabbi Emanuel Feldman for pointing out that at least mention should also be made ofthe influences of both hasidism and the mussar movement on this development.

23. See, for example, Tshuvot Hatam Sofer: Orah Chaim (New York: M. P. Press, 1958), p. 68b,Responsum 181, and Tshuvot Hatam Sofer: Yoreh Deah (New York: M. P. Press, 1958), p. 8a,Responsum 19. For a biography of Hatam Sofer, see Yehuda Nachshoni, Rabbeinu Moshe Sofer:HaHatam Sofer (Jerusalem: Hotzaat Mashabim, 1981). Also see Jacob Katz, Halakhah andKabbalah, pp. 353-386; Moshe Samet, "Kavim Nosafim Lebiographia She! HaHatam Sofer,' "in Mordechai Breuer, ed., Torah 1m Derekh Eretz Movement, pp. 65-73

24. Michael A. Meyer, Response to Modernity.25. In addition to the works by Shtampfer and Mirsky cited in N. 15 above, see R. Baruch Halevi

Epstein, Mekor Barukh, 4 vols. (Vilna: Rom, 1928), in which describes the surge of Torahlearning in Eastern Europe during the nineteenth century. I specifically use the term" learning,"rather than "studying," because of the unique character of that process in yeshivot gedolot. Itperhaps best captured in Samuel Heilman, The People of the Book (Chicago: University ofChicago Press, 1983), wherein he uses the term, "lemen."

26. Egon Mayer and Chaim i. Waxman, "Modern Jewish Orthodoxy in America: Toward the Year2000," Tradition 16:3 (Spring), 1977: 99.

27. David Singer, "The Yeshivah World," Commentary 62: 4 (October), 1976, p. 70. Also seeHerbert W. Bomzer, The Kollel in America (New York: Shengold, 1985). This, of course, is not tosay that the extent of learning is the same in the USA today as it was in Eastern Europe.Obviously, a much greater precentage of Jews in Eastern Europe spent some hours each day in

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learning than do American Jews today. Equally obvious is the fact that observant Jews comprise amuch smaller proportion of today's American Jewish population that they did of EasternEurope's Jewish population. Singer is only dealing with the number of students in higher

yeshivot. Likewise, although I am not as convinced as Singer that the American yeshivot havemade no concessions to modernity, that is an issue which not directly germane to this article.

28. Marshall Sklare, Conservative Judaism: An American Religious Movement, Augmented Ed.(New York: Schocken Books, 1972), p. 208.

29. Samuel C. Heilman and Steven M. Cohen, Cosmopolitans and Parochials: Modern OrthodoxJews in America (Chicago: University of Chicago Press, 1989, p. 39.

30. Pp. 40-81. Also see Samuel C. Heilman and Steven M. Cohen, "Ritual Variation Among ModernOrthodox Jews in the United States," in Peter Y Medding, ed., Studies in Contemporary Jewry,Vol II, pp. 164-87.

31. For a critique of the ArtScroll phenomenon, see B. Barry Levy, "Judge Not a Book by itsCover," Traditon 19: 1 (Spring), 1981, pp. 89-95. For a rejoinder, see the response by EmanuelFeldman, Tradition 19:2 (Summer), 1981, p. 192. For a more extensive version of Levy's critique,see his article, "Our Torah, Your Torah and Their Torah: An Evaluation of the ArtscrollPhenomenon," in Howard Joseph, Jack N. Lightstone, and Michael D. Oppenheim, eds., Truthand Compassion: Essays on Judaism and Religion in MemOlY of Rabbi D,: Solomon Frank(Waterloo, Ont.: Canadian Corporation for Studies in Religion/Wilfrid Laurier University Press,1983), pp. 137-89.

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