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Paskening Hashkafa: Academic vs. Practical Rationales

Posted by Rabbi Shapiro , in Torah & Science 13 March 2011 · 0 views

A common error in some circles is the idea that we do not “pasken” Hashkafa. The truth is we do. Rav Hutner used to cite a Gemora that says this explicitly.

“Agadita is also considered Halchah, as is proven from the Gemora in Eruvin (13b), that the disagreement between Bais Shammai and Bais Hillel was decided by way of vote, that noach lo shelo nivra. Thus, psak halachah is also applicable to Deos, and that is what is referred to as ‘Hilchos Deos and Chovos Halevovos’, for the difference [between Halachah and Agada] is only in respect to how and with what they are fulfilled: The Chovos HaEvarim are fulfilled with the limbs, and the Hilchos Deos are fulfilled with the understanding of the mind of those who accept the Torah … this idea the Rosh Yeshiva ZTL planted within us very much, pertinent to the fundamentals of Hichos Deos and Chovos Halevovos” (Rav Yonason David, Kuntres Shavuos, p.34)

The Rambam paskens in several places regarding hashkafa as well as action-Halchah, and the fact that he codifies 13 Ikarim in Mishna Torah is the simplest example of that. The Chasam Sofer, in his last Teshuva on Yoreh Deah, points out that there is an opinion in the Gemora – that of R. Hillel - that there will be no Moshiach (rather, Hashem Himself will redeem Klall Yisroel). Of course, one of the Rambam’s 13 Ikarim is belief in Moshiach. If so, he asks, why would R. Hillel not qualify as a heretic?

The Chasam Sofer answers that if anybody nowadays would hold like R. Hillel he would indeed be considered a Apikores, but when R. Hillel said this, the Halachah that Bias HaMashiach is a required belief had not yet been paskened and therefore it was, at that point in time, permitted to hold such an opinion. Today, however, after the dispute between R. Hillel and his peers has been paskened, anybody who holds like R. Hillel’s opinion is a heretic and has no share in Olam Habah.[1]

But besides the Ikarim there are many non-halachic disputes the Rambam paskens. As but one example of many, the Gemora in Brachos (34b) brings a dispute between R. Yochanan and R. Avohu whether a Baal Teshuva is on a higher level than someone who never needs Teshuva in the first place, or someone who never sinned is higher than the Baal Teshuva. The Rambam (Hilchos Teshuva 7:4) rules that a Baal Teshuva is on a higher level than someone who never sinned. There is no practical instruction here; just a Hashkafa.

Another example is the Gemora in Sanhedrin (91a) regarding what will be when Moshiach comes.

רבי חסדא רמי כתיב וחפרה הלבנה ובושה החמה כי מלך ה' צבאות וכתיב והיה אור הלבנה כאור החמה ואור החמה יהיה שבעתים כאור שבעת הימים לא קשיא כאן לימות המשיח כאן לעולם הבא ולשמואל דאמר אין בין העולם הזה לימות המשיח אלא שיעבוד גליות בלבד לא קשיא כאן במחנה צדיקים כאן במחנה שכינה

The Rambam in Hilchos Melachem only cites the opinion of Shmuel, not R. Yochanan. The Abarbanel (Yeshuos Meshicho end of ch. 7) asks on the Rambam that the Halachah is like R. Yochanan when disagreeing with Shmuel. Clearly, the Abarbanel understood the Rambam to be paskening this Agada like one side, and he voices his disapproval, as based on the principles of Halachah he should have rules like the other side.

The Abarbanel does not think to explain that because this is Agada, with not practical Halachic difference, the Rambam is entitled to follow whichever opinion he chooses.

Source of the error

The reason some people think that we do not pasken Hashkafa is because of an erroneous understanding of something the Rambam himself wrote elsewhere (Perush HaMishnayos Sanhedrin 10:3) regarding a disagreement in the Mishna whether the ten tribes will ever return, that because there is no practical difference, and the disagreement is only in “emunas davar bilvad”, there is no reason to pasken like one opinion over the other. The Rambam adds that he has said this “many times.” It is also in Peirush HaMishnayos Sotah (ch 3:4-5), Peirush HaMIshnayos Shevuos(1:4) and Sefer HaMiztvos (Lo Saseh 133). This principle is mentioned by R. Shmuel HaNagid, Ramak and Abarbanel as well. Those are the only early authorities I am aware of that mention this rule.

It should be noted that it is clear from the Rambam himself that his intent with this rule is not to single out Hashkafa per se as not subject to Psak Halachah, since he uses this rule regarding a dispute as to whether a certain sin incurs the punishment of Misah bidei shamayim (Sefer HaMitzvos ibid) which of course is an entirely Halachic dispute. The Rambam’s point, rather, is that any dispute, Halachic or Hashkafic, that has no practical difference, is not subject to Psak Halachah. Still, it would seem that Hashkafic disputes never have a practical nafka mineh, and so they would always be disqualified for being subject to Psak Halachah . [2]

But this is an erroneous understanding of the Rambam. The word “pasken” has two completely different meanings, and confusing them is the root cause of the misunderstanding of the Rambam.

Often when we pasken a shailah, it is because we are forced to do so but would rather not. We are faced with two contradictory directives – the two opinions in the Mahclokes – we have no reason to accept one opinion over the other, yet here we are with a shailah in front of us, and we to do something. So we “pasken,” meaning, we are forced to formulate a course of action in the face of contrary, but equally acceptable directives.

The Maharik (165) explains that when Chazal paskened one way or another, most of the time it does not mean to say that they independently decided which opinion is the more correct, but rather, they decided how to proceed based on the odds (“rove”), because one of the parties in the disagreement was perhaps sharper than the other, more accepted than the other, etc. This is why in general we rule like a Rebbi over a Talmid, etc. However, where Chazal had independent reason to believe that the Halachah is different than the normal rules of psak indicate, they would resolve the dispute as per their judgment, not the general rules. The rules of Psak were designed for a case where we cannot determine on our own which of the Halachich opinions in the dispute is more acceptable than the other.

That is why, says the Maharik, we do not Pasken issues that have no practical difference – his example is hilchasa l’meshicha. It’s not that non-applicable issues are somehow out of the scope of psak halachah. Rather, the only reason we pasken applicable issues to begin with is because we have no choice. The ideal is not to need a psak, since psak is only based on the odds anyway. Where we have to pasken, we do, but where we don’t have to, why would we?

In fact, to pasken a question without a practical application would be meaningless, because a psak is, in this context, an answer to the question: OK, now that there’s a disagreement and we do not know what to do, what l’maaseh should we do in actual practice?

Because that question is meaningless where there is no actual practice, the entire concept of psak in this context, does not exist.

This is the reason the Rambam says we do not pasken questions that have no practical difference – be they Halachic or Hashkafic.

However, the Maharik says, if there is a case – even a hilchasa l’meshicha case – where a Rishon will independently decide that one opinion is more correct than the other, that the weight of authority lies more heavily on one side than the other – of course he can “pasken!” When a certain opinion is disproved or rejected by greater authority, then it is absolutely normal to reject that shitah. Even if it is has no practical application .

The rules of psak do not apply where there is no practical application[4] , but that doesn’t mean all opinions must be equally accepted. If, for example, a Godol would decide that a certain Hashkafic position is erroneous, certainly he would be allowed to rule that he believes it to be wrong. And so too, in a dispute, whether it be Halachic, Agadic, or Hilchasa L’Meshicha, if a Godol holds that there is sufficient proof or authority backing one side, then he will rule accordingly. Not because people need guidance regarding how to proceed in an unresolved dispute, but because we can resolve the dispute.

We can pasken a shailah for practical reasons or for academic reasons. If the reason is practical, we would not pasken unless there is a nafka minah l’halachah. But if the reason for paskening is academic, we would pasken even with no Halachic difference.

There is more than one reason to academically pasken a shailah. The most obvious is to prove the correctness of one of the sides. But even when that is not feasible, such as in a case of a Machlokes Rishonim where we do not have license to declare one side as mistaken, the Halachic due process includes ways to resolve the dispute, requiring us to follow one side over the other.

For example, if there is an opinion that we cannot decipher, cannot reconcile with established principles, cannot reconcile what appear to be inherent contradictions in the shitah or contradictions to the positions of higher authorities, in such cases we would abandon such a shitah, in and follow the opposing one – even in a case of a machlokes rishonim. Not because we claim to have disproven one of the Rishonim, but because a position that we do not understand, either due to internal or external contradictions, intrinsic or extrinsic inconsistencies or conflicts, we do not use l’halachah.

This is normal Halachich due process. For example, the Nodah Beyehuda (II:EH:54) writes:
כבר ביארתי כמה פעמים שמדבר שלא עמדנו על דעתו, מה כוונתו ומה טעמו, אין להביא ראיה ממנו לא לראיה ולא לסתירה על דבר אחר

From the Chazon Ish (OH 52:5):
ולדינא אחרי שאין אנו יודעין כוונת הר"מ בבירור, אנו חייבם לעשות כדברי רבותנו אשר דבריהם מפורשים לנו, כי אנו תלמידיהם בהלכות אלו

Again, Chazon Ish (OH 102:24)
לדינא אין לנו אלא המבואר בגמ' ופוסקים, ואי אפשר לן ללמוד משנת הרמב"ם כל שלא נתגלה לן טעמו, עד יבא מורה צדק

The same thing applies to the Rambam’s statement about paskening issues with no practical difference. All he means is, where there is no need for practical guidance, we don’t need to give people practical guidance – which is what he means by “psak” in his context – but that doesn’t mean we can’t accept one opinion and reject the other, if the weight of the evidence, or superior understandability demands. [6]

The Maharitz Chayus in Yevamos (86b) echoes this as well. There, he asks about a Tosfos that says "kaima lan" - we hold - like a certain opinion in a historical, not halachic or hashkafic, dispute. The Maharitz Chayes asks, what does "we hold" like one opinion over the other? There is no halachic difference, so why would we pasken this case at all?


His answer is that since the Targum seems to support one opinion over the other, it would then be justified to say "we hold" like that side, since that is the side supported by the authority of the Targum.

Ergo, when there is sufficient superior authority to support one opinion over the other, we do indeed accept that opinion over that of its opponents, even if there is no nafka minah l'halachah.

However, Where There Is No Psak …

In a case of an Agada – or Halacha – even where there is no psak, it does not mean that we have the right to accept one as correct and the other as incorrect. Ruling between statements of Chazal – or Rishonim etc. – demand the requisite qualifications and due process, regardless of whether the dispute is Halachic, Hashkafic or Agadic.

That having been said, if a person feels more inspired by a certain statement of Chazal, or if a person’s particular spiritual needs require that he focus on a particular Hashkafic idea, or for some other reason a person finds that he is able to understand a certain statement of Chazal better than that of the opposing opinion, then he may use that Chazal as his practical outlook, but he can never say that that Chazal is the correct viewpoint. In the words of the Ramak (Alimah 1) :

Someone who does not believe even in one letter of the Torah but disagrees with it is a heretic. And that applies not only to the written Torah but even to the Oral Torah, anyone who disbelieves even a part of it, or any of the things in it, even the statements of Chazal or their drashos, because these things were established as Torah SheBal Peh, someone who disagrees with them [is a heretic]. With the exception of a case where Chazal disagree regarding something. He can rule Halachicly like either side, if there is no Halachic ruling already. And so regarding topics that are not Halachah, but from Medrashim or items that are dependent on Torah [content] and are subject to dispute in the Medrash, one says this way, another says the other way, and one of the items are closer to a person’s thinking according to one of the disagreeing opinions, and he grabs on to that opinion – such a person is not called a heretic.
For example, the Gemora has a Medrashic disagreement about Iyov – one opinion is that he really existed and another opinion is that he didn’t. A person has the option to choose either one of these opinions, on the condition that the person should not think that he can decide between the sages’ [opinions], and may not say “this is what I hold” because of whatever reason, for we do not have the ability to decide between the opinions based on logic of the philosophers or other such methods, for this issue [i.e. whether Iyov existed or not] touches on very deep subjects [7] .


This applies to Halachah and Agada. And just as in cases where there is no clear psak in Halachah, we sometimes say “d’avid kemar avid” – you can follow either opinion, it does not mean that you have the right to say you hold like one and not the other, but rather you follow one and not the other because there is no set of clear instructions, so too in Agada where there is no psak halachah – and often there is – you can follow either opinion, but you cannot say you hold like one opinion over the other.

But when there is a psak – in Halachah or Agada – we cannot follow, neither in practice, nor in policy – abandoned opinions.

And so, getting back to the Rambam who rules like R. Avohu that a Baal Teshuva is on a higher level than someone who never sinned, there are two possible explanations for why the Rambam would decide that way, even though there is no practical difference. Either (a) the Rambam had a reason to believe that the opinion of R. Avohu is more authoritative, or ( b ) he really was not paskening at all, but chose to associate with and present side of the dispute for some reason, possibly because it may be inspirational to potential Baalei Teshuva to know how high they can reach, or some other reason.

And these two explanations of this Rambam are actually put forth in the Sefer Seder Mishna, by Rav Wolf of Boskowitz, the son of the Machtzis HaShekel. Noteworthy is that he, too, from his parenthetical discussion of the Rambam seemed to understand the Rambam in accordance with the Maharik quoted above.

Key Takeaways:
1. We do pasken Hashkofo, even with no difference in Halachah, if we have academic reason to do so
2. We do not pasken Hashkofo if the posek cannot find any academic advantage in one side over the other
3. Academic advantage includes sufficient evidence or authoritative power on one side of the dispute, or a sufficient level of understanding of one opinion over the other .
4. Where we do not pasken the issue, one may profess any side of the dispute that he chooses but under no circumstances can he believe in the correctness or superiority of one opinion over the other.



[1] R. M. Kasher was one of those who erred about this rule, claiming that we do not pasken Hashkafic questions. In his Zionist tract “HaTekufahHaGedolah” he admits that this Chasam Sofer contradicts his position. He retains his position and pronounces the Chasam Sofer “tzorich iyun.”

[2] See also Yismach Moshe (Ki Sisa p.187:4)
הלא כבר נאמר בכל הספרים דכל כללי הלכות אינם אלא בדינים הנהוגין בינינו, אבל לא בעניני שמים
It is stated in all the seforim that we do only pasken laws that are relevant to us, but not laws relevant to Heaven. So Yismach Moshe understands this rule to mean that whereas we do pasken questions that are relevant to our actions, we do not pasken questions regarding actions that Hashem does. Divrei Yoel (Vaeira p.191) explains that the “Halachos” that Hashem’s fulfills follow principles (midos), which are dynamic, but the Torah rules that determine Halachah for us do not change, and that this is the meaning behind the Rambam.
In any case, the statement of the Rambam that we only pasken issues with practical applications for us has nothing to do with not paskening Hashkafa. The issue is totally different – we only pasken to provide instructions for ourselves - not Hashem.

[3] Note the error of R. Aryeh Kaplan in this respect, in his “The Age of the Universe:”

[There is] a principle that the Rambam makes in his Perush HaMishnayos. When one has a question of historical fact of hashkafa – there is no psak …
The Rambam makes this point in his Perush HaMishnayos on Shavus, at the end of Makkos, and in a few other palces in Shas. Of course, there are allusions to it. The Gemora in Menachos and other places speaks of hilchasa le-meshicha – “a law pertaining to Moshiach.” The Gemora says that we do not posken halachos for Moshiach.” (emphasis mine)

He is absolutely correct that paskening Hashkofo is similar to paskening Hilchasa LeMeshicha. R. Kaplan was apparently unaware of the Maharik that explains when and why we indeed do pasken hilchasa LeMeshicha, and in such cases, we would pasken Hashkafa as well.

[4] An illustrative case of the difference between not applying rules of psak vs not paskening altogether is where the rules of psak restrict us from paskening . Such restrictions would not apply in a case with no practical difference, and so, absent such restrictions, we would be able to pasken the issue only because there is no practical difference. Such an idea is found in the Yismach Moshe (Ki Sisa). There, he says that the rule of Torah Lo Bashamayim Hi and Ain Mashgichin B’Bas Kol – that we do not pasken according to heavenly voices, would only apply in a case with a practical difference to us. But because where there is no practical difference, the rules of psak do not apply, neither do the restrictive rules such as An Mashgichin B’Bas Kol. Thus, we would be able to pasken a disagreement such as whether the world was created in Tisheir or Nisan (Rosh HaSHanah 11a) based on a Bas Kol, whereas a disagreement with a practical difference for us would not be able to be paskened that way.

[5] And as ageneral idea for what is considered “not understandable”, see Avodah Zorah 14b

אמר ליה רבחסדא לאבימי גמירי דעבודת כוכבים דאברהם אבינו ד' מאה פירקי הויין ואנן חמשה תנן ולא ידעינן מאי קאמרינן ומאי קשיא דקתני רבי מאיר אומר אף דקל טב חצב ונקלס אסור למכור לעובדי כוכבים וכו'

Because of one unanswerable question one one Halachah, Chazal declared about the entire Mesechta לא ידעינן מאי קאמרינן.

[6] See also Abarbanel Yeshuos Meshicho vol. 2 that when two Agadic statements disagree, if one is general and the other specific, we follow the general one and disregard the specific.

[7] So for example, if someonewas wronged by another, and plans on taking revenge, there is nothing wrong withtrying to convince him that he should not take revenge because whateverhappened to him was ordained by G-d from the outset, and the perpetrator didnot really cause any harm himself. It would be appropriate to pacify someonewho was hurt by another in this manner, even though this issue is subject to amachlokes. However, it is forbidden to say that you hold this opinion isnecessarily the correct one.




Very important piece, thank you so much!
I have already referenced it ([url="[url="http://youngerlight.blogspot.com/2011/04/psak-in-hashkafa.html"]here[/url]"]here[/url]).
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Rabbi Shapiro
May 29 2011 07:32 PM

Very important piece, thank you so much!
I have already referenced it ([url="[url="http://youngerlight.blogspot.com/2011/04/psak-in-hashkafa.html"]here[/url]"]here[/url]).


Thank you. And Hatzlachah with your blog!
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on the lower left column he cites a rambam, is that rambam different from what you cited "The Rambam (Hilchos Teshuva 7:4) rules that a Baal Teshuva is on a higher level than someone who never sinned. There is no practical instruction here; just a Hashkafa. "
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http://hebrewbooks.o.....D7&pgnum=199

on the lower left column he cites a rambam, is that rambam different from what you cited "The Rambam (Hilchos Teshuva 7:4) rules that a Baal Teshuva is on a higher level than someone who never sinned. There is no practical instruction here; just a Hashkafa. "
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Rabbi Shapiro
Nov 06 2011 08:02 AM
That Rambam is talking about something else entirely. He is not talking about Baalei Teshuva at all there. He is referring to two people who did not sin. One did not sin because he had no desire to do so; the other, because he did have a desire but resisted. Which is better?

That's the Rambam you are referring to. My Rambam is talking about someone who did sin and did Teshuva versus someone who never sinned and did not need Teshuva. Two different questions.
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