To Begin to Appreciate Rav Ovadia's Derech
HaGaon HaRav Ovadia Yosef zt”l was a giant among giants, one of the foremost poskim (decisors) across the several generations of great poskim during which he was active. The most complex and difficult questions stopped at his desk, and Rav Ovadia either personally authored or served as the primary resource for Teshuvot (responsa) and other Halachic literature across the entire spectrum of both classical and contemporary issues in Torah law. His legacy to the Torah world is breathtakingly broad and deep, and his influence and impact on the eternity of the Torah is beyond anyone's capacity to appropriately – let alone comprehensively – appreciate.
Even an attempt to assess Rav Ovadia's derech, his methodology of psak (rendering Halachic decisions), is beyond the scope of voluminous book, let alone an essay in a magazine. Moreover, Rav Ovadia's unique, encyclopedic approach to every issue upon which he writes, would make it a disservice for us to examine his conclusions – even his most famous ones – without an accompanying analysis of the manner in which he proceeded, systematically and comprehensively, from the very verses in Tanach, when relevant, through the sources in Chazal (the Talmudic literature), the Rishonim (the medieval authorities), and the Acharonim (the later authorities). Rather, we will focus here on a very specific aspect of Rav Ovadia's derech – viz., how in his methodology Rav Ovadia followed in the footsteps of the greatest codifier of Halacha – and, specifically, the wellspring of the Halachic systems of the Edot HaMizrach – the author of the great masterpiece, the Shulchan Aruch, Rabbi Yosef Karo (also known as Maran among Edot Hamizrach and as the Mechaber among Ashkenazim, 1488-15751).
In a brilliant, essay at the end of the fifth volume of Shu”t Yechaveh Da'at, Rav Ovadia expounds on the principles that underlie the Mechaber's psakim in the Shulchan Aruch.
In the first of six sections, Rav Ovadia explains that the Mechaber's rulings rest upon the three great pillars of Halacha among the Rishonim: The Rif (Rabbi Yitzchak Alfasi, 1013-1103), the Rambam (Rabbi Moshe ben Maimon, 1138-1204) and the Rosh(Rabbi Asher the disciple of the Maharam MeRuttenberg, Rabbi Meir of Rothenberg, 1250 or 1259-1327). When two of these three authorities are in agreement as to the law, the Mechaber rules accordingly – even if most of the Rishonim disagree with their position. As the Mechaber explains in the introduction to his work the Beit Yosef on the Tur:2
And it occurred to me to determine Halacha and decide among the various opinions, in accordance with the ultimate goal of forging one Torah and one Code of Law. But I perceived that if we would attempt to determine the law from among the various opinions by following the form of Talmudic discussions – viz., by asserting positions and mustering evidence – then we would encounter the Tosafot,3 the Ramban (Rabbi Moshe ben Nachman, 1194-1270), the Rashba (Rabbi Shlomo ben Aderet, 1235-1310), the Ran (Rabbi Nissim of Gerona, 1320-1376) and other Halachic authorities, and be entagled in contradictory positions and evidence. Who is so bold as to place his head between these towering mountains and decide among them?! Our intellectal powers are inadequate to fully understand the profundity of their writings, let alone to assert the superior knowledge required to decide among their positions! I therefore decided, that since the three great pillars of Halacha upon which our nation rests are the Rif, the Rambam and the Rosh, therefore, wherever two of them are in agreement, we should rule accordingly – with rare exceptions of cases in which all of the sages of Israel or most of them disagree with their position, and in which, accordingly, a custom contrary to the positions of the three great pillars has been established.
In a case in which one of the three great pillars has not expressed an opinion, and the two other pillars are not in accordance, then there are before us the Ramban, the Rashba, the Ran, the Mordechai (Rabbi Mordechai ben Hillel, 1250-1298) and the Semag (the Sefer Mitzvot Gadol, Rabbi Moshe of Coucy, a Tosafist of the first half of the thirteenth century). It is surely the Divine will that we should follow in the direction to which they tend, so we will rule in accordance with the opinion to which most of them are inclined.
Rav Ovadia notes that this methodology provoked the ire of the great sages of Ashkenaz. Among them was the Maharshal (Rabbi Shlomo Luria of Lublin, 1510-1573) in his work the Yam Shel Shlomo (in the introduction to Mesechta Chullin):
Rabbi Yosef Karo composed the Beit Yosef on the Tur, in which he omits none of the opinions of those who preceded him. He barely left any room to improve on his work. However, in his Halachic decisions he made many compromises in matters of issur v'heter (matters that are forbidden vs. matters that are permitted) based on his own sevarat ha'keres (literally, “the logic of the stomach,” a derogatory appellation bestowed upon a logic perceived as baseless – also known, in Yiddish, as a boich sevara) as if he possessed such a tradition from the days of the ancients. He goes against the traditions that we have received from our masters, and by which we conduct ourselves to this day. And the students who follow his rulings do not realize that they are risking their souls, for in relying on the three greats – the Rif, the Rambam and the Rosh – he rendered decisions against the positions of the Tosafot and their adherents.
The Rema (Rabbi Moshe Isserles of Cracow, 1520-1572, the author of the glosses on the Shulchan Aruch), in the introduction to his Darchei Moshe on the Tur, issued a similar critique:
The Rav HaMechaber of the Beit Yosef's nature was to incline to focus on the great [pillars]. Hence, he always ruled on the basis of the “two or three witnesses,”4 the adored great authorities – the Rif, the Rambam and the Rosh. He did not concern himself with the other great authorities – viz., the Tosafot, the Mordechai and their adherents. Yet in most cases, we (viz., the Ashkenazic communities) rule in accordance with their opinions, as stated by the Mahari Weil (Rabbi Yaakov Weil of Erfurt, of the first half of the fifteenth century) in his responsa, siman 171. Thus, according to the Beit Yosef, all of the customs that prevail in our [European] countries, are null and void!
Nevertheless, writes Rav Ovadia, the methodology of the Mechaber is universally accepted among the Edot HaMizrach, as noted by Rabbi Yosef Karo's great contemporary, the Radbaz (Rabbi David ben Zimra of Cairo and Tzfat, who was also one of those banished from Spain, ca. 1479-1573):5
For in truth in all these regions we have accepted upon ourselves the words of the Rif, the Rambam and the Rosh. Their Halachic decisions are binding upon us, whether they are lenient or they are stringent, whether they exempt a person or they obligate him.
But what of the great principle of acharei rabbim l'hattot – “follow the majority?”6 If a preponderance of authorities, to the extent that they constitute a majority, disagree with the three authorities upon which the Mechaber relies, how could he ignore them and rule against them?
Rav Ovadia suggests7 an explanation based on the principle that a majority of judges only overrule a minority of judges when they have considered a matter as a group, in face-to-face deliberations in a court of law. In such cases, when the majority rejects the view of the minority, the view of the minority is nullified. This principle, however, does not apply to cases in which authorities have issued their rulings separately and independently, in their writings, across the span of ages. In such cases, explains Rav Ovadia, an argument can be made that if the majority had been confronted by the logic of the minority, they would have changed their minds and conceded the point. Accordingly, writes Rav Ovadia, it is possible that theMechaber did not feel bound to take the other authorities into account – since, had they been confronted by the Rif, the Rambam or the Rosh and the logic of their positions, they may well have reconsidered.
Rav Ovadia adds that we often find in the Talmud that an Amora (a sage of the Gemara) will rule in accordance with the opinion of an individual authority in preference to the opinion of several authorities – even in a matter that concerns Torah law. He explains8 that this does not contradict the principle of “follow the majority,” because that principle applies specifically to the Bet Din that is judging a specific case. While the ruling issued by the majority is binding in that case, in the time and place of that Bet Din's jurisdiction, it is not necessarily binding at other times in other places. Thus, a Bet Din of a subsequent generation can overturn the ruling of the majority of the earlier Bet Din and rule in accordance with the opinion of itsminority.9 Accordingly, posits Rav Ovadia, the Mechaber evidently regarded the three great pillars of Halacha as a kind of “super” Bet Din that could reject the majority of other opinions.10
Rav Ovadia thus postulates two twin principles that underlie the psakim of the Beit Yosef: 1. We follow a majority; 2. That majority is among a circumscribed group of authorities.
It is possible to trace these principles in Rav Ovadia's own methodology of psak. Although, as we have mentioned, whole books must - and will – be written about his methodology, we will have to suffice with two examples.
Sifrei Torah with Punctuation
Both Rabbi Moshe Feinstein zt”l and Rav Ovadia address the question of the kashrut of a Sefer Torah in which punctuation marks have been etched. Reb Moshe11 is inclined to be lenient, while Rav Ovadia12 tends towards stringency. Their teshuvot on the issue are long and complex, but a critical issue in both responsa is the interpretation of the position of the Rivash (Rabbi Yitzchak ben Sheshet Perfet of Barcelona, 1326-1408).13
The Rivash was asked about a Sefer Torah in which the Sofer (Scribe), by way of punctuation, deliberately left gaps the size of the width of a letter between each of the pesukim (verses). The Rivash begins his response by noting that in Massechet Sofrim14 we find that a Sefer Torah with actual punctuation marks is pasul (invalid). The Rivash notes that, on the one hand, the Rashba confirms this ruling – although, on the other hand, the Rambam does not mention it. However, writes the Rivash, it is possible that even if we accept the opinion of the Rashba that the ruling in Massechet Sofrim is the law, it is possible that the ruling applies only to punctuation marks written in ink, but not to punctuation by gaps. The Rivash explains that the distinction: Inked punctuation marks never occur “naturally” in a Sefer Torah, whereas gaps do “naturally” occur in any handwritten document. Therefore, rules the Rivash, so long as the gaps are not as wide as the breaks between parashiyot – the gaps that mark the “open” (petuchah) and the “closed” (setumah) paragraphs in a Sefer Torah – the Sefer Torah remains kosher.
Both Reb Moshe and Rav Ovadia extrapolate from the Rivash's case to the case they are considering – viz., a Sefer Torah in which the punctuation marks are etched – without ink – into the parchment.
Reb Moshe argues that the Rivash's distinction cannot be taken at face value – for although an occasional gap may occur by chance, there is no way that more than 5800 (the number of pesukim in the Torah) gaps – in the exact places where pesukimbegin and end – would occur by chance! Rather, writes Reb Moshe, we must focus on something the Rivash wrote earlier in his teshuvah – viz., that gaps are not the same as actual punctuation, in that they do not intrinsically separate the verses, but only serve to indicate to the Ba'al Keri'ah how to intone his reading. Now, were gaps never to occur “naturally” they would constitute intrinsic separations between pesukim – just like inked marks. But since they do occur naturally and randomly, they cannot be regarded as intrinsic separations between pesukim. Reb Moshe argues that since indentations etched into the parchment of a Sefer Torah can only be understood as punctuation by one who is familiar with the “code” the represent, they also cannot be regarded as intrinsic separations. Hence, concludes Reb Moshe, a Sefer Torah punctuated by such indentations is kosher according to the Rivash.
Reb Moshe relies on his analysis of the Rivash to reject the opinions of several other authorities, including the Maharam Schick (Rabbi Moshe Schick of Yeregin and Huszt, 1807-1879”).15 This is a manifestation of Reb Moshe's methodology of psak, which relies heavily on independent analysis of selected definitive sources.
Rav Ovadia, on the other hand, rejects Reb Moshe's analysis. He notes that Reb Moshe was evidently unaware of a preponderance of other authorities – besides the Maharam Schick – who invalidate such a Sefer Torah. He therefore proposes an alternative explanation of the Rivash – an explanation that would put the Rivash in line with the prepoderance of authorities – viz., that only a symbol of punctuation that could otherwise occur “naturally” - i.e., a gap – is permitted, whereas any artificial symbol of punctuation – including an etched indentation – invalidates a Sefer Torah.
Although Rav Ovadia also engages in analysis of the Rivash, ultimately it is not that analysis that is the basis of his position. While he offers an alternative to Reb Moshe's understanding of the words of the Rivash, his primary basis for his position is based on his survey of the sources and his assessment of the opinion of the majority of the authorities. This is an almost precise reflection of Rav Ovadia's presentation of the first principle of the Mechaber's methodology.16
Entering a Mosque
Rabbi Eliezer Waldenberg zt”l (the Tzitz Eliezer) and Rav Ovadia disagree on the question of whether it is permissible to enter a mosque. The Ran17 explicitly prohibits entry into a mosque.18 However, no such prohibition appears either in theRambam's Mishneh Torah or in the Shulchan Aruch.
The Tzitz Eliezer19 takes the position that when a Rishon's ruling is available to us, we must follow it. As the Ran is a Rishon, we are bound to follow his ruling. Accordingly, he forbids entering a mosque.
Rav Ovadia,20 on the other hand, maintains that the ruling of a Rishon that is not codified in the Mishneh Torah or in the Shulchan Aruch is not binding upon us. The one definitive ruling of the Rambam that may bear on this issue, is his ruling that Islam is not considered Avodah Zarah.21 The inference of that ruling is against the ruling of the Ran. Rav Ovadia therefore rules that it is permitted to enter a mosque.22 This curtailing of the scope of authorities to exclude the Ran – even by inference – is an almost precise reflection of Rav Ovadia's presentation of the second principle of the Mechaber's methodology.
We did not propose, nor purport, to present anything resembling a comprehensive appreciation of Rav Ovadia's vast and profound contributions to the Torah world in general, even specifically to the Halachic process. Nevertheless, we have identified two important principles of psak that Rav Ovadia both elucidates and deploys. Perhaps we can use these principles as examples to contemplate, to extrapolate from them and realize that there many other such principles and vast numbers of expositions and applications of such principles across dozens of volumes of Yabi'a Omer, Yechaveh Da'at, Chazon Ovadia and Yalkut Yosef. This contemplation would then serve us well to begin to appreciate the breathtakingly extraordinary scope of Rav Ovadia's legacy to Am Yisrael and our eternal Torah.
1The Mechaber was born in Toledo, and his family was one of those banished from Spain in 1492 and from Portugal in 1497. He lived in Turkey until 1535, when he moved to Tzfat, where he completed the Shulchan Aruch in 1555 and published it in 1565.
2The Arba'ah Turim, the forerunner to the Shulchan Aruch and its basis, written by Rabbi Yaakov the son of the Rosh (ca. 1269-ca. 1343).
3The commentaries of approximately 130 German and French authorities of the twelfth and the thirteenth centuries, most of whom were descended – literally, or intellectually – from Rashi (1040-1105).
4See Devarim 17:6.
5Shu”t HaRadbaz 2:626.
6See Shmot 23:2. The principle is expounded in the famous story of the disagreement between Rabbi Eliezer ben Hyrkonos and the rest of the sages that is related in Bava Metzi'a 59b.
7On the basis of an explanation of Shu”t Torat Emet siman 207 in explanation of Tosafot in Bava Kamma 27b.
8On the basis of Get Pashut klal 6 d”h Gam.
9See Eduyot 1:5 and the Ravad's commentary ad loc.
10He notes that the Radbaz (4:116) disagrees with this position, and therefore goes on to present an alternative basis for Maran's reliance on the Rif, the Rambam and the Rosh – particularly on the Rambam. Rav Ovadia then discusses Maran's approach to Rashi and the Tosafot; the extent to whichMaran's rulings have been accepted; and the status of the Rema's rulings for Edot HaMizrach.
11Shu”t Igrot Moshe, Yoreh Deah 3:117.
12Shu”t Yechaveh Da'at 6:54.
13Shu”t HaRivash siman 286.
14One of the several minor tractates of the Talmud that consist primarily of braytot on specific topics in Halacha and Agada.
15Shu”t Maharam Schick, Yoreh Deah siman 278.
16Although beyond the scope of this essay, it is worth noting another aspect of Rav Ovadia's methodology that is manifest in his ruling here. The Sifrei Torah in question are Yemenite Sifrei Torah. They have such etched punctuation marks on account of the Yemenite custom to have the person who receives an aliyah to read his Torah portion. Since not all persons receiving aliyot are acquainted with the punctuation of the pesukim, such etchings serve to let them know the location of the middle and the end of a pasuk. A major Yemenite posek, Rabbi David Mashariki, permitted such Sifrei Torah (Revid HaZahav siman 29). Hence, noting the concept of a Mara d'Atra (local rabbinic authority), Reb Moshe takes into account that a Yemenite authority permitted such Sifrei Torah in issuing his own lenient ruling for Yemenite congregations. Rav Ovadia, on the other hand, is known to have been of the opinion that all Edot HaMizrach should unify their customs of the basis of the standards promulgated by the Mechaber in the Shulchan Aruch. He therefore takes the position that the concept of Mara d'Atra should not be applied to this case, and accordingly issues his own stringent ruling – even for Yemenite congregations.
18The Ran makes it clear that he does not regard Islam as Avodah Zarah. He opines, however, that the veneration of Mohammed that Moslems practice in their mosques is tantamount to an idolatrous practice, and that it is therefore forbidden to enter the places in which such veneration is practiced.
19Shu”t Tzitz Eliezer 14:91.
20Shu”t Yabi'a Omer vol. 3, Yoreh Deah siman 15.
21Hilchot Ma'achalot Assurot 11:7. See, in greater detail, Shu”t HaRambam siman 448.
22While beyond the scope of this essay, it is noteworthy that the methodology of the Tzitz Eliezer here is similar to the methodology of the Chazon Ish zt”l in the great International Dateline debate, while Rav Ovadia's methodology is similar to that of Rabbi Tzvi Pesach Frank zt”l in the same debate(see http://www.chabad.org/library/article_cdo/aid/1736567/jewish/The-Sabbath-the-International-Date-Line-and-Jewish-Law.htm and http://www.koltorah.org/ravj/The%20International%20Date%20Line%20and%20Halacha.htm).