osewalrus (osewalrus) wrote,

Jewish: Proper Application of Law and Expertise

Recently, I was having an argument about the nature of rabbinic authority and application of principles: notably "hasagas g'vul." Hasagas g'vul is a concept that where one Jewish rabbinic court has authority, another should not intrude. This issue has acquired a great deal of importance as various courts of Jewish authority and individual Rabbis operate on different local, regional and national basis -- particularly in the area of granting rabbinic supervision/certification on products and services.

We have particularly nasty fights here in DC between the Washington DC Area Vaad "(Capital Kosher) and the Star-K. The Star-K certifies businesses based in Baltimore (a much larger Jewish community than the DC area) and is also offers international certification services for food products. Constant flare ups involve the use of providers based in Baltimore or extension of restaraunts already under Star-K supervision. Capital Kosher maintains that these businesses must acquire an additional (or separate) Capital Kosher heksher (certification) to operate in the DC metro area, and that failure to do so constitutes hasagas g'vul. This costs significant money and complicates matters enormously, prompting many Baltimore based providers to avoid the Washington DC metro area or, in the alternative, prompting significant arguments within the community (in particular over what the appropriate border of the theoretical Capital Kosher Va'ad "community").

The person I was arguing with was maintaining that Star K violates hasagas g'vul outrageously in their practices (I shall add that he is a friend of one of the more vocal Capital Va'ad Rabbis). He cited as evidence the recent acquisition (he claims) of the certification of a Va'ad in a Texas community. "Is this the way Kashrus should be practiced?" He asked. "With the bigger heksherim taking over the smaller ones."

I replied that it was impossible to answer without some real world knowledge of industrial organization and empirical study of how these organizations operate as businesses. It also requires an understanding of the essential values and principles of halacha and their application to the real world situation. It is not enough to know that in Europe in the 17th century the practice was X or that a similar case was determined in such a way at time Y. To properly apply such precedents requires an understanding of the underlying facts of the world and how it operates. To this, he responded that because neither he or I were Rabbis, we should not presume to express opinions (depsite having previously expressed several).

My response:

A structure that does not recognize the economic reality of this issue is inherently unsustainable. To attempt to psak (adjudicate) halacha without that understanding is simply madness. I'm sorry. But the notion that being an expert in halacha provides you with all the knowledge you need to answer these questions is contrary to our halachic tradition and fundamentally flawed. Our Rabbis of old never failed to consult actual craftsmen and specialists (even among the goyim) to provide needed inputs in rendering their halachic decisions.

Because a Rav is the juridical specialist trained in halacha, the poseik (lachic authority) must make the adjudication of how halacha applies to a specific set of facts. But the understanding of the specific facts must be complete to properly render halachic judgement. One of the things I respect about Star-K is that they train their Rabbis in industrial processes and the economics of food distribution. This allows them to properly evaluate the companies they supervise and apply halacha in an appropriate and infomred matter.

I would urge that you (and others) guard against the reflexive protectiveness demonstrated in your arguments. To state that Rabbis who are not troubling themselves to consult economic experts or considering application of economic principles when applying halachic precedent is neither heresy nor rejection of proper halachic authority. To the contrary, it is to call for a return to the traditions of our most learned Rabbis and scholars, who took care to deeply study practical applications and potential impacts before rendering a judgement.

Consider your question about the Star-K's take over of a smaller Vaad. *Why* would that be bad? Why might it be good? Is it neither bad nor good? Was this, for example, a case of a smaller organization no longer able to sustain itself, that by merging was the Star-K continues to provide needed services to the local community? Alternatively, is it an inappropriate usurpation of local authority for functions that must remain inherently local? These are not questions that can be answered solely by recourse to precedent. Rather, Rebbeim must apply the halachic principles derived from precedent to the new and complex situations that emerge.

End quote.

Where I'm deeply troubled is my growing feeling that there are a substantial number of people who have a fundamentally different conception of how judicial halachic authority has worked in the past, and what makes it sustainable. Because the alternative is to go down the route that the Conservative are taking, which is ultimately self-destructive (I give the conservative movement another 50 years or so before it becomes, for all intents and purposes, indistinguishable from the Reform movement). Ironicly, the drive for this fundamental misunderstanding comes in no small part from the fear that application of the proper judicial standard is too reletavistic and results in the sort of counter-traditional Juridical rulemaking that the Conservative movement uses.

The deference to my mind is the nature and use of precedent and its applications. In the instant case, the economic and social reality of the world is wholly new. When examining precedent, we must be careful to determine how the actual law was applied to the specific case so that we may see if the same result obtains. This is fundamentally different from refusing to apply previous precedent because we have a new "understanding" of underlying spiritual or social equities.

To take an example: we had locally an issue where a local bakery moved to a new location near other Jewish businesses. They wanted to expand their food and food service offerings in a way that potentially competed with a nneighboring kosher resteraunt already present. There is halachic precedent for saying that Jewish businesses in such a situation should not directly compete with each other lest one Jew deprive another of a living.

I argue there are two ways to analyze whether to apply this precedent in the case described above. One way is to decide that because we no longer believe in a philosophy of protectionism, but believe in a philosophy of capitalism and freedom of action, we should discard the previous precedent as no longer applicable. Indeed, one could go so far as to say that economic protectionism of this sort -- which has only a vague basis in the Torah by appealing to general commands pertaining to social justice -- has no place in the practice of religion. i.e., that Rabbis should not "meddle" in economic matters because they lie outside the scope of their jurisdiction.

The other approach is to examine whether the underlying economic reasoning is still applicable. The economic reality under which these rules developed has utterly changed. Having multiple resteraunts serving breakfast may attract more people to eat out. Both may draw on non-Jewish customers as well as Jewish customers. The old economic reality of a sharply delineated "static pie" that shaped the application of social justice principles has changed, making the precedent inapplicable rather than prompting us to simply disgard the precedent as contrary to our current economic and social philosophy.

The third possibility is to simply say "this is the law, you can't offer a competing service, and to suggest otherwise is a violation of the law."

Obviously, I regard the second approach as superior and -- and one which has a much greater basis in history than either the first or the third approach. The Conservative movement -- to my observation -- increasingly employs the first approach, as it did last summer when it decided that rabbinic (as opposed to Torahitic) prohibitions on homosexual and lesbian conduct should be eliminated because we now have a better understanding that such attraction is genetic and cannot be changed. Even assuming that this is the case (which, I agree, accords with the weight of medical evidence -- at least with regard to the fixed nature of secual preference), it is unclear why such an understanding alters the applicability of past precedent. Past preccedent was not based on a misunderstanding that people could alter their sexual desires at whim. It was based on a presumption that the ability to form a relationship with a sexual component must yield to other considerations in halacha.

My problem with this approach is that it results in a gradual evolution of practice away from set overarching principles in our tradition. This approach does not conclude that prior precedent is inapplicable because the actual facts of the instant case differ in significant ways, it concludes that prior precedent must be overruled because we have found a counterveiling social principle that we think more important. This presumes that we go beyond our rule in interpreting a set body of halacha and traditional and may now freely (if cautiously) legislate halacha to our own ends. In my view, such an approach is inherently unsustainable and must ultimately swallow halacha and tradition as subject to continued evolution of our social norms.

By contrast, the Orthodox movement increasingly applies the third approach. Again, this is inherently unsustainable. The unsustainability comes here from the fact that reality will eventually bite you in the ass, and that layering reality-ignoring application of precedent on the modern world creates a structure that breeds disatisfaction, discontent, and disrespect for the law. Since this appears merely to re-enforce rigidity as necessary to safeguard the law, the result creates a feedback loop that shatters communities into those that disrespect the law and its applications and those who escape into isolation and mental rigidity. Protectors of rigidity equate their misapplication of precedent with the law itself, so that any attempt to argue that precedent is misapplied is regarded as abandonment of the entire halachic structure. As the number of applications of inapplicable and unworkable precedent accumulate, spawning further applications in turn, the pressure within the community grows unbearable and ultimately unsustainable as a social dynamic, driving out members who are told that the only choice is between a halachic rule set that bears no realtionship to the workings of the real world and complete abandonment of Torah.

All in all, a gloomy picture. But that's why I'm such a grumpy Osewalrus. Happily, as I have often remarked, my relationship with God depends on God, not on the quality of those who claim to speak for God. And, lest it appear that I regard all of the Rabbinate as falling into an unfrotunate error, I should stress that I know a number of Rabbis, learned in the law, who recognize their limitations and seek appropriate inputs. My gripe is with those who are no better then bullies, and whose behavior brings the law into disrepute.

Wheel of Kohelet, turn, turn, turn. What is the lesson that we must learn?
"Wisdom is better than weapons of war, but one sinner destroys much good."

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