[Avodah] Fwd: Eilu va'Eilu

Fri Aug 25 12:29:48 PDT 2017

Because how can I /not/ share something on eilu va'eilu?

-micha

----- Forwarded message from torahweb at torahweb.org -----
Date: Fri, 25 Aug 2017 10:31:45 -0400
From: torahweb at torahweb.org
Subject: updates to Rav Schachter's dvar Torah
To: weeklydt at torahweb.org

TorahWeb
EILU V'EILU
Rabbi Hershel Schachter

The Talmud, as well as later rabbinical literature, is replete with
halachic disputes. The halacha has had to decide which opinion should be
followed. Should we assume that the rejected view was mistaken and simply
incorrect? The Gemara (Eruvin 13b) states regarding the many disputes
between Beis Shamai and Beis Hillel that, "eilu v'eilu divrei Elokim
Chaim -- both opinions are the words of the Living G-d." although in
the overwhelming majority of cases we have not accepted the views of
Beis Shamai, this does not mean that they were wrong; one who spends
time learning the views of Beis Shamai is in fulfillment of the mitzvah
of Talmud Torah. Beis Shamai were also basing their opinions on middos
she'ha'Torah nidreshes bohein; they were following the principles and
the rules of the Torah She'b'al Peh, just that they came to a different
conclusion than Beis Hillel. Therefore learning their opinions would
also constitute a proper fulfillment of the mitzvah of Talmud Torah. To
use the terminology of Rav Soloveitchik, their views also constitute a
cheftza shel Torah.

The Ritva (ibid) explains as follows: when Moshe Rabbeinu was on Har Sinai
and received the Torah from Hashem, he asked the Ribbono Shel Olam what
the din would be in various cases, and in some Hashem told him the din
is assur, in some He told Moshe muttar, and in some Hashem told him that
the case had elements of issur and elements of hetter and He leaves the
matter up to the Torah scholars of each generation to determine whether
-- according to their perspective -- the elements of issur outweigh the
elements of hetter, or the reverse; and since different people can each
have different perspectives even though they are looking at the same
thing, more than one can be correct. This is the meaning of the idea
that, "eilu v'eilu divrei Elokim Chaim."

This concept does not always apply in all cases. Rashi and Tosafos
(Kesubos 57a) point out that sometimes we must assume that one of the
opinions is clearly incorrect. Sometimes we see a dispute among the
later rabbinic authorities where one of the opinions imply overlooked
a passage in the Talmud, or sometimes even an explicit passuk in the
Chumash. In such a case we clearly will not apply the idea of eilu v'eilu.

Even when we do apply "eilu v'eilu divrei Elokim Chaim" it does not mean
that halacha l'ma'aseh one has the right to follow either opinion. The
original statement in the gemara regarding eilu v'eilu was with respect
to the many disputes between Beis Shamai and Beis Hillel and nonetheless
the gemara (Berachos 36b) states that, "Beis Shamai b'makom Beis Hille
eina Mishna", i.e. we totally ignore the opinions of Beis Shamai with
respect to psak Halacha, and unlike other minority views that were also
not accepted, we don't even consider the views of Beis Shamai as creating
even the slightest safeik (safeik kol-d'hu.) Regarding Hilchos Aveilus
and Orla b'chutz la'aretzm, even when dealing with a d'oraysa issue, the
halacha says that in the presence of any slight safeik we go l'hakeil,
even if the probability of the doubt is nowhere near 50%. A minority
opinion which was not accepted constitutes a slight safeik. But because
the views of Beis Shamai were outvoted by Beis Hillel when they met
together and debated their issues, their opinions are totally ignored
halacha l'ma'aseh. (See my sefer, B'Ikvei Hatzon, siman 38, for more on
this topic.)

Likewise the poskim assume that when you have a shitah y'chida'ah,
a lone opinion among poskim not shared by others, this view also does
not constitute a slight safeik. The Beis Shmuel (Shulchan Aruch, Even
HoEzer siman 90, s'if kattan 6) thinks that even if the Rambam agrees
with the Ri Migash on an position not agreed upon by other poskim,
this view should be totally ignored, since the Rambam was so taken by
the genius of the Ri Migash (his father's rebbe), and would naturally be
inclined to accept his opinion without even thinking twice (even though
in several instances the Rambam does reject his opinion), this psak
would be considered a shitah y'chida'ah and should be totally ignored.

It was recently reported that a certain "beis din" permitted a
married woman to remarry without a get, because it was ascertained
that her husband was not Sabbath observant at the time he married her,
and the halacha considers one who is mechalel Shabbos b'farhesia to
be like a non-Jew. And, they reasoned, we all know that if a non-Jew
marries a Jewish woman the marriage does not take effect. This ruling
is absolutely scandalous. First of all, the consensus of recent poskim
has been that the concept of mechalel Shabbos b'farhesia doesn't apply
today since so many Jews are not shomer Shabbos and the term "b'farhesia"
has the connotation that this individual is breaking the discipline in
the community (Chazon Ish and Binyan Tzion.) The members of this "beis
din" would most certainly have been the first to say that such a Jew
would not cause wine he touched to become prohibited because he is not
considered to be like a non-Jew. More importantly, the view that a Jew
who is treated as a non-Jew because he is mechalel Shabbos b'farhesia
can't effectively marry a Jewish woman is totally ignored, because it
is against an explicit gemara (Yevamos 47b) that states that even if a
Jew converts to another religion and marries a Jewish woman the marriage
does in fact take effect. We can't apply the concept of eilu v'eilu to
this view; it is simply incorrect.

Even in an instance where we do apply eilu v'eilu, for example regarding
the views of Beis Shamai, one may not follow their opinion. Eilu v'eilu
means that one who spends time delving into the understanding of the
views of Beis Shamai is fulfilling the mitzvah of Talmud Torah, but it
does notmean that it has ramifications halacha l'ma'aseh.

There are rules and regulations regarding psak halacha; this discipline is
not hefker (is not a free for all.) The parsha tells us that the halachic
positions of the Beis Din Hagadol are binding on all Jews. The Sanhedrin
was a group of Torah scholars who were clearly head and shoulders above
all of their contemporaries. They were the gedolei hador (the Torah
giants of their generation), and the gedolei hador have the status of
rabo muvhak for their entire generation, even for those who never even
met them (see Tosafos on Berachos 31b and Shulchan Aruch, Yoreh Deah
244:10.) The halachic positions of one's rebbe muvhak are binding on
him, and the halachic views of the gedolei hador (who are clearly head
and shoulders above the other Torah scholars of their generation) may
not be ignored. None of the members of the aforementioned "beis din"
are recognized by anyone as belonging to the category of gedolei hador,
and even if it had been a case where we would apply eilu v'eilu, since
the gedolei hador have unanimously rejected it for generations, no one
today who is not in the category of gedolei hador has the right to go
against this rejection!

Rabbinic leaders throughout the generations are always concerned with
the plight of agunos, but coming up with non-halachic solutions is not
the Orthodox way. The Talmud Yerushalmi seems to hold that the concept of
pikuach nefesh doesn't only apply when one's life is in danger, but also
if one's life will be made extremely miserable this too falls under the
category of pikuach nefesh, which allows one to violate Torah laws. The
Yerushalmi (quoted by Rav Yosef Engle in Teshuvas Aguna) says that we
would have allowed every agunah to violate the prohibition of adultery
if not for the fact that we are dealing with gilui arayos (forbidden
marriages) where the halacha does not permit one to violate the mitzvah
even in a case of literal pikuach nefesh -- even to save one's life.

The aforementioned "beis din" is doing a disservice to the Orthodox Jewish
community at large, and specifically to these poor agunos, by misleading
them with absolutely scandalously fallacious piskei halacha. Let the
public beware! One must be of the caliber of Rav Chaim Ozer Grodzinski in
his generation or Rav Moshe Feinstein in the past generation in order to
determine in a given case if the halacha permits a woman to get remarried
without a get.

POSTSCRIPT:
Regarding the aforementioned "beis din", also see important letter from
Rav Hershel Schachter, Rav Gedalia Dov Schwartz, Rav Nota Greenblatt,
Rav Avrohom Union, and Rav Menachem Mendel Senderovitz regarding the
"International Beit Din" <http://www.torahweb.org/torah/docs/ibd-machaa.html>.