Pressures Faced by Posekim: A Personal Reflection 1
by Michael J. Broyde
When someone poses a halakhic question, the authority offering an answer or issuing a
decision—the posek, or decisor, and in plural, posekim or decisors—is faced with five important
considerations (or pressures, if you prefer) that can incline them to answer the question in
different ways. These considerations are as follows:
1. Is the Jewish law in this case clear or indeterminate? If indeterminate, what presses one to
pick this option over another?
2. How will the person who asks the question respond to the answer? Is this something that
the decisor needs to consider when resolving the issue at hand?
3. How will the community respond to the question and the answer? Is this a pressing
matter for the community, one in which an answer will likely bring a swift and vocal
communal response? Or, rather, is this of relative insignificance to the broader
community?
4. Are there reasons to answer publicly so that others will see both the question and the
answer?
5. Will people misunderstand the answer to permit something that the posek does not intend
to permit, or prohibit what was not intended to prohibit?
Each of these considerations generates complexities worth exploring—and I am sure there
are others that I am not considering here. My hope is that those who ask and answer questions of
Jewish law will be girded and guided by this short essay. May both those who ask and those who
answer remain virtuous and determined to stand for the authentic values one needs to stand for,
resisting the social tides that can dilute our observance.
The Starting Point: Is Applied Jewish Law Clear or Indeterminate?
The first question is very basic, but also the most important because it asks: “What really
is the halakha in this case?” There are two possible scenarios that the decisor might find
themselves in. First, in some matters of halakha, Jewish law accepts the possible propriety of
more than one answer. Thus, the job of the decisor in those cases is to decide not only what the
ideal halakhic answer is in that particular case, but also which answer best fits the needs of
person asking the question. This, of course, differs sharply from the second scenario, where only
one answer is consistent with Jewish Law—and there are many cases where this is true. But, this
essay focuses on cases where more than one answer is possible.
Importantly, halakha has deep doctrines of indeterminacy in ritual law. Broadly speaking,
Jewish law considers minority opinions that are not proven wrong as possibly correct. Thus, they
may be relied on in a time of need. In fact, even opinions of just one significant authority can be
relied on in cases of urgent need. 2 This principle impacts the role of the decisor as follows:
Sometimes one is asked a question regarding a matter for which one does not have a firm and
clear view of the halakha, nor can one find a single correct answer that is supported by both
custom and practice. I will give an example of such a case later in this article. Nevertheless, the
decisor is called upon to figure out which approach is the correct one for the matter at hand. 3
Based on my conversations with others, this question—how many disputes are still open and
how much discretion does an individual decisor have—is the single most important point of
disparity among authorities who answer questions of halakha. 4
Some claim that most legal disputes in Jewish law (maybe all, at least in theory) can be
resolved internally and textually by reference to certain talmudic logical rules that are universally
accepted within traditional Jewish jurisprudence. While this is not the case (this group of
decisors concedes) for secondary matters of ritual custom or theology, it is for matters of
functional Jewish law. Indeed, for this school of decisors, properly applied logic will resolve
almost all the disputes of previous generations. Furthermore, many decisors have a deep trust of
their own logic and comfortably consider disputes closed because they have thought about a
matter in detail and have determined what they consider to be the correct answer.
A second, separate school of thought reaches essentially the same outcome—nearly all
disputes can be conclusively resolved—but does so from a very different starting point. These
decisors posit that almost no dispute can actually be resolved by reference to first tier rules of
Jewish jurisprudence (unlike school one, above), since—at least among giants of Jewish law—it
is exceedingly rare that one view is demonstrably incorrect. Instead, they resolve disputes by
resorting to binding second tier rules which resolve disputes, rules such as “follow the current
majority” or “be strict on matters of biblical law.” Ashkenazim, for instance, follow Rabbi
Moshe Isserless (Rama), and Orthodox Jews in America accept the authority of Rabbi Moshe
Feinstein. All such rules are to be followed. Disputes are thus functionally closed by reference to
the customs around us.
A third school of thought argues that the two approaches outlined above are functionally
correct with respect to how people and communities ought to function on a regular basis. They
give power to custom (minhag) both in ritual, commercial, and family law matters, since in the
real world, law needs consistency of outcomes and certainty of results. These rules are thus
binding because they are followed and not the other way around. This is the way (argues this
school of thought) that Jewish legal theory has evolved over time, and it allows (if you will
excuse me for saying this) Jewish law to be considered a legal system rather than merely a
personal ethical system. Yet what this means practically is that if you live in a place with a well-
established ritual practice, that practice is the halakha for all intents and purposes, even as one
can agree in theory that it is no better than a different outcome and is no more correct in God’s
eyes.
The final school of thought rejects all of this, both as a matter of legal theory and also as
a matter of actual practice, at least in a time of need, certainly for personal questions that impact
no one else. 5 Instead they construct Jewish law as a spectrum of opinions from the ideal view to
keep to one that is minimally acceptable in time of urgent need. This school of thought proposes
three basic ideas. First, very few opinions are ever truly and completely rejected as definitively
wrong. 6 Second, in a time of need, any opinion can be relied on unless it is one of those opinions
that is distinctly considered wrong. Third, this matter is left to the judgment of individual Jewish
law authorities who may decide for themselves and their followers what the rules ought to be,
both as an ideal and in a time of need. There is no formal hierarchy at all. In this model, Jewish
law is much more open, and the customs mentioned in school three above are social and not
jurisprudential. 7
As I have noted elsewhere, 8 I am inclined to think that the dominant model of Jewish
ritual law follows the final school of thought because any halakhic authority who confronts a
real-world problem of ritual law has many more choices and options than we might give them
credit for at first glance.
Allow me to give you a simple illustrative example (which I will return to at the end of this
paper). How many days of Yom Tov should a tourist from the Diaspora observe when in Israel?
Is the answer one (as they do in Israel) or two (as they do in America)? This matter was the focal
point of a dispute between Rabbi Yosef Karo and Rabbi Tzvi Ashkenazi many centuries ago.
Rabbi Karo (d. 1575) adopts the view that a tourist in Israel keeps two days, as this is a matter of
personal practice, and argues that, so long as one is a resident of the Diaspora, wherever one
is—even in Israel—one keeps two days. Rabbi Ashkenazi (d. 1718) maintains the opposite, that
one who is in Israel only observes one day of Yom Tov. To him, this is not a personal custom, but
a geographical one—and everyone in Israel keeps one day only. Most classical Jewish law
authorities adopt the view of Rabbi Karo, and only a minority adopt the view of Rabbi
Ashkenazi. So, how do different decisors resolve this matter for their communities?
1. Some examine the talmudic and other sources and determine the correct answer on their
own, using the logical and textual tools of rabbinics.
2. Some argue that this matter is settled by the rulings of the previous generations, and one
should follow the majority view.
3. Some argue that this matter is in doubt, and one should follow the view of Rabbi Karo
and be strict for Rabbi Ashkenazi, and some reverse this and adopt the view of Rabbi
Ashkenazi while being strict for Rabbi Karo. Some treat this as a matter of full doubt and
are strict for both views.
4. Some rule that this matter is in doubt, and one should follow the custom of the
community they are in and the rabbi(s) who established those rules. 9
Of course, one should not be surprised to discover that some think it is best to follow Rabbi
Karo, but posit that, in a time of need, one can follow Rabbi Ashkenazi. 10
This example offers an important takeaway: Jewish law is a somewhat flexible legal
system vis-a-vis ritual matters. While there might be an ideal answer to a question, there are also
less-than-ideal answers that are also viable. Practitioners of Jewish law know this, and that is
why different communities of followers of halakha exist and one of the reasons decisors differ
from each other. Anyone who has learned any substantive area of halakha knows that cases of
urgent need are treated differently. The idea that in some ideal world all authorities of halakha
would answer all questions identically for all people misses exactly that one person’s
circumstances are not the same as another’s, and one community’s situation is not identical to
another’s.
What this means is that in the “real world” of answering questions from people—rather
than in writing a “Code of Jewish Law for all times and all places” like the Rambam’s Mishneh
Torah—one learns to listen closely to the person asking the question. Placing the question in
context and in a situation is important, and recognizing the range of options that are present is
crucial. On the other hand, there are questions that presuppose a value system that is outside the
pale of Torah Judaism—one that reflects a set of values that are rejected by the overwhelming
consensus of halakhic decisions of the centuries. Determining what is the range of viable
halakhic opinions helps one understand both what is in and what is outside the range of Torah
values.
The Next Step: Objectively Correct versus Subjectively Right
The next set of questions that a decisor always asks concerns a common set of problems
dealing with responses to the decisor’s decision. These questions are:
1. How will the person who asks the question respond to the answer? Is this another
consequence that needs to be considered?
2. How will the community respond to the question and the answer?
Another equally important question—one unstated (and virtually undiscussed) in the halakhic
literature—is, “What gives a decisor the right to consider people’s (and community’s) responses
to the decisor’s decisions—decisions based on the truth as the decisor sees it?”
I suspect that the ability of a decisor to ask these questions is also unique to halakha as a
legal system. 11 Sometimes, decisors decline to answer questions and affirmatively refer
questioners to someone who will provide them with the lenient answer that the questioner needed
but that the original answerer was unwilling to provide. This "punting" is a way that a posek
deals with pressure of "I need this answer" from a questioner, even where the decisor thinks that
the answer they want is not the correct answer, but nevertheless recognizes the real need for the
questioner. The posek therefore sends the question to another authoritative decisor who is
prepared to rule as the questioner senses they need.
Consider, for example, the practice of the late great Jewish law authority, Rabbi Shlomo
Zalman Auerbach, with regard to a subset of questions relating to aborting fetuses with certain
types of defects. 12 He would refer such people to Rabbi Eliezer Waldenberg [Tzitiz Eliezer] who
permitted those abortions, although Rabbi Auerbach himself thought that such abortions were
prohibited and perhaps even tantamount to murder. Nevertheless, he recognized that the
consequences of his answer would be difficult or bad for this individual person, and, since there
was a legitimate view found among recognized halakhic decisors, he would send such questions
to those recognized decisors.
His practice teaches a vital point about issuing decisions [pesak]: One decisor can (but need
not) send a person to a decisor who can provide a person with the answer they need. But what
right does one posek have to send the case to a different posek?
The justification is revealing about the role and practice of Jewish law decisors generally.
First and most importantly, it demonstrates that these authorities are meant to safeguard the
community; they consider the impact of their answers on the people around them. Second, it
demonstrates that the decisor is aware that there are clearly cases where not seeking the
objectively right answer is proper. Rather, the decisor may (and perhaps should) find the answer
that fits the needs of the questioner and their community as a valid expression of Jewish law. 13
There are at least six different approaches to “punting” that are worth noting, each of which
points to a different aspect of the decisor’s role. The first is derived from a talmudic story in
Hullin 99b:
When people would come before Rabbi Ami to ask about the halakha of a thigh that was
cooked with the sciatic nerve inside, he would send them before Rabbi Yitzḥak ben Ḥalov,
who would rule leniently about this issue and say that is was permitted, in the name of
Rabbi Yehoshua ben Levi. Rabbi Ami himself did not hold accordingly, but he did not
wish to rule stringently for others. And the halakha is that sciatic nerves do not impart
flavor at all. (Translation from Sefaria.)
This story suggests the following guidance on “punting” (similar to what was discussed
above): One decisor many decline to answer a question and send it to another of equal status and
authority. This is permitted even when the first is sure that the second view is wrong. Now, why
Rabbi Ami did this, and how he was justified in doing so, are good questions and not explained
by the Talmud. Rashi implies that Rabbi Ami was justified in punting simply because the
questioner was expecting a more liberal view. In other words, according to Rashi, decisors can
generally punt matters where they do not want to impose their stricter standards on those seeking
more liberal answers.
A second approach to punting can be construed as an example of “soft pluralism.” In other
words, Jewish law recognizes many questions has three (or more) answers: the right one, the
wrong one, and the one (or ones) that one can accept in a time of need. The Talmud sometimes
even acknowledges that in times of urgent need, one can accept any view as legitimate so long as
it is plausible. 14 Halakhic authorities frequently concede that views other than their own (even as
they think their view is most correct) are plausible, and in a time of need, these other views can
be accepted as correct. In this model, halakhic authorities decide what views besides their own
are subjectively right even if they are not objectively correct. 15
There is a corollary to this notion. A decisor may consider another’s subjectively right
decision as completely wrong, and yet still be comfortable in allowing the questioner to rely on
that decision because it is based on the holdings of a scholar or rabbi who himself is reliable (bar
samcha). I would go even further and say that although this second view is incomprehensibly
wrong to the first decisor, he may direct people to that second view simply because the one who
is articulating it is a respected authority of Jewish law. 16
A third way of conceptualizing punting, and of understanding the talmudic source above, is
to maintain that the only time an authority may refer a questioner to another authority is when
the first truly believes the second authority’s view of Jewish law is correct. This issue, rather, is
merely that his own view is stricter than the minimal legal standard. That is a possible reading of
the above passage, particularly if one understands that the normative Jewish law codified in the
last line of the page rejects the view of Rabbi Ami. 17
A fourth view—taken from the talmudic recounting in Hullin 48a—seems to be that that one
can “punt” a questioner to another decisor only when he is uncertain as to what the correct legal
ruling ought to be. That Talmudic source states:
The Gemara relates that Rabbi Yitzḥak bar Yosef was walking after Rabbi Yirmeya in
the butchers’ market. He saw these lungs that were full of cysts, and he wished to
determine the halakha with regard to them. He said to Rabbi Yirmeya: Doesn’t the Master
desire a piece of meat? If so, meat from those animals is for sale. Rabbi Yirmeya, not
wanting to issue a ruling with regard to the meat, said to him: I have no money. Rabbi
Yitzḥak bar Yosef said to him: I will buy them for you on credit. Rabbi Yirmeya realized
that he could not avoid issuing a ruling, so he said to him: What can I do for you? As
when people came before Rabbi Yoḥanan with such lungs, he would send them before
Rabbi Yehuda, son of Rabbi Shimon, who would instruct them in such cases in the name
of Rabbi Elazar, son of Rabbi Shimon, to permit the meat for consumption. But Rabbi
Yoḥanan himself does not hold accordingly and does not permit the meat. I practice
stringency in accordance with his opinion. (Translation from Sefaria.)
The narrative here seems to limit referrals to cases of uncertainty. 18
A fifth view involves hierarchical authority. The work Vealayhu Lo Yuval, which is about
questions asked to the great Rabbi Shlomo Zalman Auerbach, recounts the following incident: 19
Sending the Questioner to the Chief Rabbis: Rabbi Ephraim Greenfeld told me that a
relative of his suffered a brain hemorrhage. The doctors were certain that he had no
chance of survival and asked the family’s permission to donate his organs to other
patients. Rabbi Ephraim spoke with his relatives and knew that whatever ruling the Rabbi
[Shlomo Zalman Auerbach] would give on this matter would be accepted by them, so he
approached with a religious doctor from the hospital during the late-night hours to ask
Rabbi Auerbach what to do. Rabbi Auerbach told them: In my opinion, it is forbidden to
take organs from him to save other patients, but I am aware that the Chief Rabbis of
Israel [Rabbi Avraham Elkana Kahana Shapira and the Rishon LeZion Rabbi Mordechai
Eliyahu] permit in such a situation to take organs to save other patients—you should go
and ask them!
It is possible to read this story as permitting only referrals to the “chief rabbis” or maybe only to
decisors viewed by oneself as superior, and even so only on communal questions. 20
A final view on punting, this anecdote notwithstanding, a close read of the article “Mah
Enosh: Reflections on the Relation between Judaism and Humanism” by Rabbi Aharon
Lichtenstein inclines one to think that maybe this phenomenon is simply another example of
Jewish law’s desire to accommodate the humanity of people, without a deep specific unique
jurisprudential basis. In other words, “punting” reflects the desire of Jewish law to allow people
to function in a time of need, with a variety of tools, not each of which is fully individually
jurisprudentially based, but more reflective of human necessity and the desire of halakha to
function than any other idea. 21
Whatever the reason is, there is no doubt that sometimes decisors refer questions to other
authorities, and that this is part of the job. It is consistent with how authorities of Jewish law help
people find the right answer for a person without personally saying things that the decisor thinks
are mistaken. In this process, the decisor considers how the questioner would respond to their
answer, as well as how the community will understand and respond. 22
A Final Consideration and a Caveat: Will the Decision Be Properly Understood?
There are two final, but no less important, factors that a decisor must consider before offering
their legal decision:
1. Are there reasons to answer this question publicly to bring this discussion to broader
attention?
2. Will people misunderstand the answer to permit something that the decisor does not
intend to permit, or else prohibit something that the decisor does not intend to prohibit?
Both questions are more sociological than legal. Consider, for instance, the following
illustrative example: Over the last decade, decisors have seen increasingly more questions on
what role a person who is in a same-sex relationship (SSR) can play in an Orthodox community.
At some point, these questions need to be addressed not on an ad-hoc basis, but in a more
systemic way. This is true for three reasons. First, reasoned written material allows people to
understand the logic of the decision-maker and thereby the Jewish legal process. Second, written
material creates communal and general expectations so that people are not put in a situation in
which they are unaware of what is expected of them as a matter of Jewish law (whether they
follow the law or not) and thereby made to be unexpectedly embarrassed. Third, written
discussion allows many authorities to see what others are doing and modify their public (and
private) expectations considering the norms of other communities.
Yet, in writing decisions down, there is always the concern of misunderstanding. Every
authority worries that rulings will be misunderstood beyond their proper parameters and will be
taken to permit something that the writer did not intend to permit or to prohibit something that
they did not intend to prohibit. This fear of misunderstanding—or sometimes understanding all
too well what is on the authority’s mind, but what they are (in fact) unwilling to permit—is
critically important in understanding when one chooses to write an answer (teshuva) or an
article, or, why a decisor might issue a resolution with no firm reason that clearly addresses the
situation, thus leaving the explanation of “why” somewhat unresolved. A desire to contain, or
better still, avoid misunderstandings will often dictate much of what one writes and in what
language one writes and even in what style one chooses to speak. Writing about SSRs is an
excellent example of that. Sometimes one wants to convey a complex idea, namely, that while
this conduct is a violation of Jewish law, one does not want to see these violators treated any
differently than any other violators of comparable matters of Jewish law. 23
Let me add an important caveat: We are discussing in this article the pressures on the
decisor who is answering question, and not on the questioner, a topic certainly worthy of another
article. Jewish law has a clear rule prohibiting a petitioner from asking the same question to more
than one authority; once a person directly asks a question to an authority and the question is
answered, the questioner is bound by the answer. The authority can punt, but the questioner
cannot. The ability to choose which opinion is the correct one is left to the person who answers
the question and not to the person who asks it. The questioner has one—and only
one—enormous decision: to whom should they ask the question. Indeed, to a great extent, this is
the most fundamental question all Jews have—one that shapes the Jewish law as they actually
practice it: What community should they join, and to whom should they direct questions of
Jewish law and ethics? 24
Six Examples that Highlight the Complexities Faced by Authorities
Let us move away from the abstract toward six concrete examples that provide insight into
the complexities decisors regularly face. 25
1. End of Shabbat
The first example deals with an oft-asked question: When is the earliest time one can end
Shabbat? I was recently asked by a congregational rabbi, on behalf of a congregant in a dire
financial-legal situation, when was the earliest time they could sign a document on a Saturday
night to avoid a significant financial problem. Sunset in New York City is at 4:28 pm on
December 9, and, for reasons that are beyond the scope of this paragraph, the congregant needed
to personally sign a document in front of a judge before 5:00 pm on Saturday. The person
worshipped in a Chabad synagogue, which ends Shabbat at 5:15, 45 minutes after sunset. Jewish
law here is far from clear, with opinions permitting Shabbat violations 13.5 minutes (relative) a
mil after sunset, as early as 4:46 pm (Gra), and some being even more strict, arguing that Shabbat
ends at 5:57 (Rabbenu Tam). 26 Yet, it is also clear that the normative custom in America does not
follow either the minimalist understanding of the Gra, or the maximalist understand of Rabbenu
Tam. Nearly all synagogues end Shabbat no earlier than 35 minutes after sunset and no later than
50 or 72 minutes after sunset. Chabad synagogues uniformly ended Shabbat 45 minutes after
sunset, as is their custom. 27 This person needed to be in a judge’s chambers to sign no later than
32 minute before sunset and also needed some time to prepare to do so. Given the indeterminacy
of the law, the fact that most American communities adopt the view of the Gra, treating
additional waiting as fulfilling the special mitzvah of adding additional time for Shabbat, and
that this question could be answered without setting any general policy, I told the rabbi to tell his
congregant that he could walk to the location in question with his identification in hand (in a
place where there was an eruv) and sign the form any time after 4:51 pm. 28
2. SSM Kohen Performing the Priestly Blessing
Over the past few years, I have been occasionally asked about whether a man who is in a same-
sex marriage (SSM) and is a kohen can engage in the priestly blessing (duchen). Although at first
glance one might intuit that this is prohibited, actually the law is reasonable clear
that—anomalously and unusually for sexual sins by kohanim—same-sex relations are not the
type of sexual sin that prevent a kohen from blessing the people. This is in accordance with the
Mishnah Berurah, Arukh haShulhan, Kaf haHaim, and Yalkut Yosef, and is unlike many other
serious sexual sins. The exact reason for this is set out in the note below. 29 Yet, as Rabbi Feinstein
notes in his answer on whether a kohen who violates Shabbat can engage in the priestly blessing
(where there is some basis, although far from controlling, to prohibit such), there is an argument
that a synagogue rabbi can ask kohanim to leave the sanctuary and not engage in the blessing to
protect other values. 30 For a long time, I answered similarly. However, after engaging different
questions over time, I set out a few months ago to lay out my views in an article, so that (1)
leniently permitting a kohen in a SSM to engage in the priestly blessing should not be
misunderstood as lenient in other areas related to SSRs or other sexual sins by kohanim; (2) these
types of questions are relatively recent and community-wide guidance is needed; and (3) I
thought it was good to combat the sense that halakha was always unduly strict in this area which
was preventing people from doing a mitzvah.
3. Second Day Yom Tov in Israel
A regular question asked of almost all American rabbis—including me—involves what to do as a
tourist in Israel during a holy day. Should one observe one day of the holy day, two days, or
some combination? Many views abound. I personally try very hard to follow the view of Rabbi
Aharon Lichtenstein and observe the second day as a stricture (lehumra); I do not observe the
second day of Yom Tov prayer and ritual when in Israel, though I abstain from work in general
and from what would be biblically prohibited work on the first day. 31 Even my own family thinks
my view is difficult to implement and hard to understand. Yet, after due consideration, it is my
view that correctly balances the views of the Rabbis Karo and Ashkenazi. Nonetheless, when
people who are not uniquely my students ask me this question, I tend to send them to one of my
many friends who are Chabad rabbis—some of whom even were my students—who tell them to
observe only one day, since that is the common custom in fact in our community. I recognize that
what I think the best legal decision might be is viewed by many as burdensome, complex, and
intellectually indeterminant. Sometimes, one does not have to share one’s view, and one can send
people to decisors that provide them with answers that resonate with their expectations and allow
them to function.
4. Error in the Creation of Marriage
Many years ago, I wrote an article on the rare situation in which a woman can leave her marriage
without a divorce (and yet where her husband is still alive) entitled “Error in the Creation of
Jewish Marriages: Under what Circumstances Can Error in the Creation of a Marriage Void the
Marriage without Requiring a Get according to halakha.” 32 The piece explains Rabbi Moshe
Feinstein’s views on this matter. For many years, I was privileged to have assisted Rabbi Gedalia
Dov Schwartz zt”l on some matters in which a woman was permitted to remarry without a
religious divorce decree (get) based on an error in the creation of the marriage, and I have been
involved in other such matters since his passing. Such cases are rare and complex, and one easily
worries that they will be subject to abuse by some in our community who are sincerely seeking
to solve very sad agunah cases (cases where one spouse has left but the other cannot remarry
with a religious divorce), yet lack the firm legal foundation to validly argue for a marriage to be
void in its creation. 33 In addition, determinations of this type are very public and are subject to
review by many great authorities. While my view is that cases like these are worthy of ending
without a religious divorce decree, others do not agree, and the child that results might be labeled
a mamzer—born of a forbidden union—by their community. Based on all these factors, I only
issue decision letters when they are endorsed by great Jewish law authorities, and I abstain from
merely voicing my personal opinions unsupported by a leading scholar. I do work exceedingly
hard to find giants of Jewish law to agree in cases as needed. In some areas of legal decision-
making, consensus is needed, and idiosyncratic views are unwise for a community.
5. Tripartite Prenuptial Agreement
The same can be said for the tripartite prenuptial agreement I authored many years ago. Solutions
to the agunah problems abound. However, we all recognize that “solutions” that are not accepted
by the Orthodox community are functionally ineffective, since the woman will think she is free
of her Jewish marriage, but the community will not. This is a bad place to be in; thinking oneself
as single and yet being married is unwise, and so too is thinking of oneself as single when most
Jewish law authorities deny it. Even if some rabbis think an individual is single, it might be just
as bad a status. Thus, in terms of my decision-making, I am swayed by the force of the question,
“How will the person asking the question respond to the answer? Is there another consequence
that one must consider?” This drives me to conclude that until a critical mass of significant legal
authorities endorses this tripartite prenuptial agreement, it ought to remain something I think is
correct, but not something I instruct people to use. Even so, I am aware of the fact that many,
many couples in Israel and America actually are using this document, 34 and that it has many
advantages in cases of spousal death (especially halitza procedures), men in a permanent
vegetative state, 35 and in terms of its independence from secular law. So, I share the document
with the community, uncertain of the legal consequences and without instructing people to use it
or not.
6. Hair Covering
Our final example is, at some level, the one that is most complex. Many years ago, I wrote an
article in Tradition explaining the legal basis for married women to not cover their hair, and it
provided what I considered then (and my sense that this is correct has only increased) an
excellent justification for conduct, without endorsing it as a legal determination (limud zekhut). 36
My abstract view is that Jewish law here is indeterminate—there are numerous pre-modern
decisors who rule that in a society where modest women do not cover their hair, Jewish law does
not require it—and thus a person who comes from a family where married women do not cover
their hair need not start. I am also aware that none of the great legal decisors with whom I
regularly consult actually agrees with my view, and the same is true for nearly all authorities of
the last century. Furthermore, many women view this matter as a critical one; some do not want
to be part of a community in which women think they need to cover their hair, and others have
the exact opposite view. Furthermore, I worry that people will understand any permissive ruling
with regard to hair to apply to many other situations of modesty, a uniquely problematic issue in
an immodest society. Based on these factors, I wrote the article only as a thought exercise.
Nevertheless, I regularly get asked questions from women about hair covering. I have
three basic approaches to these questions. First, I try my hardest to avoid directly answering
them. I say things like, “In the article I explain the basis for not covering,” or “Read the article,”
or “The Ben Ish Hai permits women not to cover their hair when modest women generally do
not,” or “There certainly are Jewish law authorities who think married women need not cover
their hair when modest women do not,” and other such comments that do not directly speak in
my own name. Second, I appreciate the public complexity associated with these
questions—being liberal on issues of modesty in immodest times is hard. Third, I do not answer
these questions in writing having already written once.
But, truth be told, sometimes rules are meant to be broken—I was recently called by a
great Jewish law authority in Brooklyn who told me “Mrs. X will be calling you shortly to speak
with you about hair covering, and you should tell her that she does not have to cover her hair.”
So, I asked this great Jewish law authority, “If that is the right answer to this question, why don’t
you tell, after all, you are a Torah giant!” He responded, “I am Rabbi Ami and you are Rabbi
Yitzḥak ben Ḥalov in this question.” [See Hullin 99b, cited above at page 13 .] So, I did as I was
told and directed this woman that she need not continue to cover her hair.
Conclusions
The process of answering Jewish legal questions starts with knowing the answer, but it
does not end there. It moves from there to knowing what other answers are possible and who
provides those other answers. It then moves on to formulating answers in a way that works for
the community that one is serving, including sending questions to others. Nuance, complexity,
and sensitivity to the community are part of the tools used by those who answer questions of
Jewish law.
1 Thank you to Rabbi Hayyim Angel, editor of Conversations, for inviting me to prepare this article. His posing of
the thoughtful question to me of “I thought it would be a very valuable contribution for you to reflect on what it is
like to be a posek [one who answers questions of Jewish Law], the pressures you face to conform, other communal
issues that you think the public should be aware of, etc. Given your expertise and integrity to stand up for your own
principles, I think it would be a very worthwhile perspective to bring to the public” framed this article. I attempt to
answer the questions he poses, aware of my limitations. Thank you as well to Rabbi Reuven Travis for his editorial
help.
In this article, I do not discuss the pressures—actually very different—as a dayan in commercial matters where one
is adjudicating between two parties or pressures faced by dayanim generally in many matters. The pressures in those
situations are different, and much more governed by technical halakha, as found in Shulhan Arukh Hoshen Mishpat
9, 10, 12 25 and other places.
2 See, for example, Encyclopedia Talmudit, Hefsed Merubeh 10:36 around notes 44–50.
3 I am aware of Rav Aharon Lichtenstein’s insightful presentation of the difference between a rule [pesak] and a
ruling [pseika], as explained in “The Human and Social Factor in Halakha” (Tradition 36:1 1–25 (2002). If Rav
Aharon (truly one of the greatest minds our community has ever produced) is arguing that pesak [in the sense of
writing a rule] is the idealized form of Jewish law, and pseika is the practical application of these idealized rules to
the reality that we live in, then I think almost all halakhic authorities are engaging in pseika when they answer
questions, and this distinction is not valuable, even as it is true. On the other hand, if Rav Aharon means that halakha
in less-than-ideal situations is pseika and halakha in a perfect word is pesak, then I think this distinction is over-
stated in the real world. Even the real world of talmudic, medieval, and early pre-modern authorities, these sages
considered the hard and complex nature of reality in which they lived when they wrote rules. Therefore, all is just
pseika, other than just a few works of idealized Jewish law, like the Mishneh Torah. For example, is instructing
someone to use a heter iska [pro-forma document than permits charging interest] an act of pesak or pseika? Is
instructing a woman that birth control is proper in any particular situation pesak or pseika? Is permitting carrying a
gun on Shabbat pesak or pseika? Sadly enough, we live in a less than ideal world—where it does not rain gold coins,
raising children is complex, and antisemitism abounds—so many challenges are present. Let me add that there is
palpable tension between the above article and another article of Rav Aharon on halakhic process entitled “Mah
Enosh,” to be discussed later.
4 To be clear, there are times when one might have a clear view of the halakha or can answer the question based on
both custom and practice but declines to do so. Later in this article, I will discuss “punting”—the Jewish law
phenomenon in which a halakhic authority is certain what the answer is, and yet will decline to answer the question
because it provides the questioner an answer that they do not want in a case that is important to them. Needless to
say, this phenomenon requires that there be an authentic posek who is comfortable providing the answer the party is
seeking.
5 This is in contrast to question where even though this is actually a personal ritual matter as a matter of fact, it is a
communal matter since the community actually adjudicates by its conduct whether the result is accepted. For
example, whether a woman needs a Jewish divorce or not is a personal ritual question only she may ask about
herself—but a determination by a rabbi that she does not is, in fact, second guessed by anyone who she wishes to
marry.
6 When I say “wrong” in this context, I mean that the view cannot be relied on in any circumstances, even though of
course the view is well within the umbrella of Torah, and one fulfills the mitzvah of Torah study by studying them.
The views of Beit Shammai in the Mishnah are one such as example, as the talmudic rabbis themselves note.
7 The contrast between Jewish law and American law here is complete: Minority opinions in American law are just
for study, but are of no legal value at all, whereas in Jewish law, most minority opinions are validly used in
situations of need.
8 I do not discuss this issue here at great length, but I have a few books that do discuss this issue in various forms.
See Setting the Table: An Introduction to the Jurisprudence of Rabbi Yechiel Mikhel Epstein’s Arukh haShulhan,
Academic Studies Press (2021) (co-author: Shlomo Pill) and The Codification of Jewish Law and an Introduction to
the Jurisprudence of the Mishna Berura, Brighton, Mass.: Academic Studies Press (2013). (co-author: Ira Bedzow)
and Innovation in Jewish Law: A Case Study of Chiddush in Havineinu Jerusalem, Urim Publications (2010). The
reality of legal indeterminacy helps explain why works of Jewish Jurisprudence are of less common in Jewish law,
since if legal indeterminacy governs, jurisprudence is less significant.
9 See Rabbi Joseph Karo, Avkot Rochel 26 and Rabbi Tzvi Ashkenazi, Chachmat Tzvi 167. For more on this, see the
excellent discussion by my friend and former co-author Rabbi Howard Jachter, in Gray Matter I at 217–224 at
https://www.sefaria.org.il/Gray_Matter_I%2C_Laws_of_Holidays%2C_The_Second_Day_of_Yom_Tov_for_Visito
rs_to_Israel.10?lang=he and Rabbi Dr. David Horowitz, “Visitors in Israel and Yom Tov Sheni,” JHCS 6:79–92
(1983) at https://www.yutorah.org/lectures/735671/ . Of course, within the views that compromise between the two
views there is much nuance on issues.
10 See for example Rabbi Hershel Schachter, “Regarding the Second Day Yom Tov for Visitors in Eretz Yisroel” on
Torahweb.org.
11 American law and the common law from which it descends certainly does not allow this question to be asked. See
Code of Conduct for United States Judges, Canon 3.
12 See for example “Abortion in halakha” https://www.yutorah.org/lectures/lecture.cfm/1021843/rabbi-hershel-
schachter/abortion-in- halakha/ at minute 22:30 to 23:10 for Rabbi Hershel Schachter recounting such. If you listen
closely, you see that Rabbi Auerbach recognized that the consequences of his answer for this person was bad for this
person, and since there was a different legitimate view found among recognized posekim, he would send such
questions to that recognized halakhic authority. I was told that Rabbi Aharon Lichtenstein also had this approach to
abortion as I note in “What Does Jewish Law Think American Abortion Law Ought to Be?” at note 16. I was told that it
was the practice of the Lubavitcher Rebbe with regard to some questions related to Jewish law and adoption to
instruct people to ask Rabbi Soloveitchik; See R. Tzvi Schachter, Penina HaRav page 268 which notes one such
story.
13 It is clear that there are some halakhic authorities who did not think this correct. For example, the great Rabbi
Moshe Feinstein in Iggrot Moshe OC 5:20:16 prohibits declining to answer questions when both the facts and the
law are clear to the person who is being asked. He states, “But, when one is asked on a clearly defined set of facts
what he thinks the Jewish law is, it is obvious that he must respond as is proper for this person and it is prohibited to
decline to answer and send them to other experts …”. Furthermore, this idea is found rather directly and
unmistakably in the penultimate paragraph of his introduction to volume 1 of the same work as well. There are two
possible ways to explain Rav Moshe: One is that if he felt that if a leniency was needed, he would find it and give it
himself, and the second that a Jewish law authority when asked is called upon to answer and not punt even if this
authority is stricter than others. Furthermore, it seems clear that Rabbi Feinstein felt this was the rule even if others
around one was more eminent authorities. See Iggrot Moshe YD 1:101. Let me add as support to this view, and
maybe as an explanation of what this dispute is about, that the core question might be whether the formulation found
in Shulhan Arukh YD 242:14, which notes that “Any scholar who is eligible to rule and does not rule, is depriving
people of Torah and putting a stumbling block in front of the masses” is rule of law, or a rule of reason, or simply
ethical advice, or limited to the situations where the scholar solves the problem. Rabbi Feinstein understands this as
a rule of law, and others as a practical application to help people.
14 In the words of the Talmud “It is proper to accept the rule of Rabbi X in a time of need.”
15 See, for example, Ktav Sofer YD 77, who in parts of the teshuva formulates the rule this way.
16 In the above Ktav Sofer, other parts of the same teshuva can be read this way.
17 This seems to be the view of Rama. See YD 228:21 in the name of some say and Rama OC 472:7 and Responsa of
Rashba 3:304 and others. This is part of the discussion of why—in cases of urgent economic need—we are lenient
in ritual matters. See also Pri Megadim, Formulation of the Question (first order).
18 That seems to be the view supported by the above Iggrot Moshe in OC 5:20:16, which denies the right to send a
question to another who will provide a different answer when the initial person asked is sure of the answer.
19 See Nachum Stepansky, Ve’alayhu Lo Yuval: The Insights and Practices of Rabbi Shlomo Zalman Auerbach, YD
58 at page 91. A thoughtful reader of this article suggested that in cases in which the person will do the sin anyway,
it is better to find them some authority who will permit this action, since it is better pastorally that a person not view
themselves as a sinner, and this is a rationale for punting, as well.
20 The next story (59) in this work involves a similar referral, but on a communal matter to the Chief Rabbi. It seems
to this writer unlikely that Rabbi Auerbach viewed himself as intellectually subordinate to either of the Chief Rabbis
mentioned although one never knows for certain. At some level, the question posed is whether this is a punt or a
lateral, or a forward pass, to continue the football metaphor.
21 See Rabbi Aharon Lichtenstein “Mah Enosh: Reflections on the Relation between Judaism and Humanism” The
Torah Umaddah Journal 14:1–61 (2006/7) also at https://www.etzion.org.il/sites/default/files/2021-01/RAL-
Mah%20Enosh-%20Judaism%20and%20Humanism.pdf particularly in section VI, from pages 29 to 42 as well as
crucial paragraphs on the bottom of page 43 and the top of page 44.
By contrast, the principle to be explored presently—that normative standards may be compromised in
straitened circumstances—does concern the clash of human and halakhic factors. It suggests that, within
limits, extraneous factors may validly intrude upon halakhic judgments; that, for the posek or his
respondent, non-normative considerations may properly enter into normative decision. Clearly,
however—as regards the respondent, certainly—the consideration of such factors must be, at best, a matter
of license. If one may, as a concession to his condition, take certain liberties, these can hardly be elevated
into duties. And even if one argues correctly that it is the halakha itself, which has sanctioned these
liberties—so that they be rightfully regarded as grounded in principle rather than convenience—it has
sanctioned them only as such, as an option of which one may avail himself rather than as an imperative
duty. Hence, the humanistic moment implicit in such permissiveness must be regarded as more significant
than that reflected in pikuach. nefesh or kevod haBeriyyot. Whereas they constitute particular halakhic
concepts relevant to specific areas of halakha, this principle represents a broad flexibility within the
halakhic process generally; and whereas they remain genuinely internal elements, it can, in a very real
sense, be construed as an extraneous factor.
Translating this into the idea of one posek looking for another posek who permits this conduct is not so hard.
22 Not explicitly addressed here, and certainly worthy of more analysis is when should a posek decide to provide a
simple verbal answer, a simple written answer or write a clear explanation. There is no doubt that the same factors
that are considered when deciding to send the question to another are at play in these decisions as well. Of course,
the temperament of the posek is also important, with some extremely hesitant to write, and other more comfortable.
23 See the examples section for more.
24 Forum shopping, prior to asking a question, is abstractly permitted; indeed, many people make very important
religious choices by examining diverse religious communities, considering their views on important matter, and
deciding to join one of them, and then asking the rabbi or rabbis of that community their questions, tempered by the
important idea found in Eruvin 6b that a person who forum shops for both the leniencies of the Shammai school and
the leniencies of the Hillel School is called evil. Of course, people can switch communities when they decide that
such is proper and change who they ask questions to. What they cannot do, however, is ask a question to a rabbi, be
given an answer, decide that this answer does not fit what they want and ask another rabbi the same question, hoping
for a better answer. This article does not explain the unique role and responsibility of a posek who is the rebbe
muvhak—a teacher who one has personally committed to following lockstep—since I think such relationships are
exceedingly rare among readers of this journal, even if it is more common, perhaps, among Belzer Chassidim. For
more on these issues, see Shulhan Arukh YD 242 and the elaborate discussion there among the commentators there
as well as the comments of Shach on SA CM 25:5.
25 I have slightly changed the facts of each of the cases relevant to preserve the anonymity of the questioners. The
details of the questioners hardly matters for the examples.
26 See https://www.myzmanim.com/day.aspx?vars=68949485/12-9-2023/elab///////////////3b6def for a recitation of the
various possible halakhic times. For an excellent new book on the various view, see Rabbi Ahron Notis, The Great
Z’manim Debate (2022). It is worth noting that the above link gives 11 different answers to when Shabbat ends,
from 4:45 to 5:56 and notes on the top of the page that Shabbat ends at 5:14 and others wait until 5:41.
27 See https://www.chabad.org/calendar/candlelighting_cdo/aid/6226/locationid/370/locationtype/1/save/1/tdate/12-
09-2023/jewish/Shabbat-Candle-Lighting-Times.htm which notes that on December 9, 2023, shabbat ends at 5:13,
45 minutes after sunset in New York.
28 Let me contrast this approach with one that I think is rejected by modern posekim nearly universally. Ra'avya
(cited by the Ohr Zarua, Shabbat 76) limiting the torah prohibition of writing to Hebrew and Greek [neither the
language of use in this case]. Although Rama cites this view in SA OC 306:11 as thus only prohibiting writing in the
vernacular rabbinically, there is a distinct sense among the posekim (as noted by Mishna Berurah 306:47 and Arukh
haShulhan OC 306:21) that this view of the Rama is either wrong or a typo and not to be followed as the view of the
Ra’avya is incorrect or alone. If that view were correct, one could have addressed this issue—which would then be a
rabbinic prohibition—in many other different ways. Indeed, I have no doubt that if the Ra’avya were alive today and
still held to his view, it is possible that I would have sent this questioner to the Ra’avya to have him answer this
question. But, in the current generation, I am unaware of any halakhic authority who thinks the Ra’avya is correct.
29 A prepublication version of the article can be found at
https://www.broydeblog.net/uploads/8/0/4/0/80408218/allowing_a_kohein_in_a_same_sex_marriage_to_duchen_fo
r_publication_review_with_ai_appendix_includeded_near_final_for_sharing.pdf and in essence this article
highlights that a kohen in a SSR or SSM is not in a prohibited relationship with anyone uniquely prohibited to marry
a kohen which is the central test for whether a kohen should be prohibited from the priestly blessing (duchaning).
Please read the article if you wish.
30 See Iggrot Moshe OC 1:33 and this discussion in the above article on pages 13–14.
31 See above for more information. For more background see Rabbi David Brofsky, Yom Tov Sheni. who notes "This
position has been adopted by numerous Posekim, although they differ as to the extent to which one should observe
Yom Tov Sheni. While some suggest that one should merely refrain from melakhot [work], others recommend that
one should fulfill the positive commandments, such as the mitzvot of the second seder, hearing the berakhot
[blessings] from another person. R. Soloveitchik and R. Aharon Lichtenstein also rule that one visiting Eretz Yisrael,
including students who come to study but intend to return, should refrain from performing melakhot [work] on the
second day of Yom Tov."
32 https://www.jlaw.com/Articles/KidusheiTaut.html
33 See for example, https://www.torahmusings.com/wp-content/uploads/2005/08/4_2_Broyde.pdf
34 See https://jewishprenup.org/ and see "Tripartite Agreement is Jewish Law" Techumin 37:228–240 (2017). For an
excellent criticism of this agreement, see the thoughtful recording by Rabbi Yona Reiss at
https://www.yutorah.org/sidebar/lecturedata/867961/Response-to-Tripartite-Solution-for-Agunos and his article in
Techumin 37:240-247 (2017) entitled “Veim Shlosh Ayla Lo Ye’aseh La.” For a more sympathetic review, see
Rabbi Mordechai Torczyner, “The Tripartite Agreement: A Prenup Like No Other” at
https://www.yutorah.org/sidebar/lecturedata/918245/The-Tripartite-Agreement:-A-Prenup-Like-No-Other.
35 See my article “Plonit v. Ploni: The Get from the Man in a Permanent Vegetative State,” Hakirah: The Flatbush
Journal of Jewish Law and Thought 18 (2014), 59–90.
36 See Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat
Yehudit)? Published in: Tradition: A Journal of Jewish Thought 42:3 (Fall 2009), 95–179.
