Thursday, June 29th, 2017

The Dangers of “Soft Stringency:” Hearing Aids, Chumrot, and Moral Sensitivity in Halakhic Handbooks

November 9, 2009 by  
Filed under Philosophy

Hearing Aids

The Dangers of “Soft Stringency:” Hearing Aids, Chumrot, and Moral Sensitivity in Halakhic Handbooks

By Shlomo Brody

Is it forbidden to speak to someone wearing a hearing aid on Shabbat?

In an earlier post, I discussed the impact of halakha handbooks on contemporary halakhic discourse, focusing on the whether certain books change their rulings given the broad intended audience of the book.  The specific example I used related to the principle of halakha ve-ein morin ken, exemplifying cases in which one does not state the (lenient) law for fear of public confusion or denigration.

In this post, I would like to focus on the stringent tendencies that are frequently found in these works, using as an example a questionable psak in a very popular work on Hilchot Shabbat regarding the propriety of speaking to someone wearing a hearing aid.

“Chumra of the Week” or Ignorance?

Allow me to state from the outset that the tendency to criticize these works for their “chumra of the week“  is occasionally overblown and frequently stems from ignorance.  On a number of occasions, I have heard people complain about statements in these works which in fact reflect basic halakha (in the gemara, Shulchan Aruch, and poskim).  It is one thing to state that we should pasken le-kula like the Ohr Sameach (and against the Mishna Berurah) that borer does not apply to silverware.  It is quite another matter, however, to complain that a handbook outlines the laws of borer at all, simply because one was not educated or raised to be aware of this melacha.

Motivations to be Machmir

Nonetheless, I think that most people correctly understand that these works take a more stringent approach to many matters of law.  One motivation to be machmir – or at least to approvingly cite the more stringent opinion – is to appeal to the widest range of poskim (and their haskamot) and communities, thereby increasing the readership.

A more integral concern, however, relates to one’s relationship with their readers.  As a teacher, one does not always know how well students will understand or comprehend that which one teaches.1 One has to worry about misunderstanding, and even when properly understood, one still fears potentially flawed deductions that students make from your remarks.  This is all-the-more-so true of the written word, when one has no personal interaction with the reader.  One cannot know the erudition of the readers, or answer follow-up questions, etc…  Almost every handbook includes the disclaimer that this work is only a reference book for consultation, but should not replace actual sheilot.  Nonetheless, every author understands that the work will be used le-ma’aseh, and therefore takes necessary precautionary measures by ruling le-chumra.

“Soft Stringency” in Cases of Makhloket

I believe, however, that a third factor looms over the tendency toward chumra, relating to the ethos of “soft stringency.” As opposed to “Hard Stringency,” in which one straight-forwardly rules le-chumra, adherents to “soft stringency” acknowledge the legitimacy and even cogency of a more mekil position, but ultimately follow the more machmir position.  As my teacher, Professor Benjamin Brown of The Hebrew University, has explained, this ethos stems partly from an ideal of simplicity (I don’t want to get involved with the complex nitty-gritty of this disagreement, and will instead opt for the safer choice), and partly from an “mussar” ideal of spiritual aspiration, in which one sacrifices by opting for a more stringent position that presumably reflects, and also builds, greater yirat chet and yirat shamayim.2 As Brown notes, this phenomenon is found in many halakhic works, usually indicated by phrases like “It is appropriate to be stringent here,” “A God-Fearing person should adopt the stringent position,” or “He who is stringent will be blessed.”  The most prominent user of this approach was the Mishna Berurah, as any student of his work will readily recognize, and as Brown quantitatively documents.  In his fascinating study on the topic, Brown contends that the Mishna Berurah actually employed this principle as a means to allow room for individual choice and leniency, and that it has been ironically adopted by contemporary Haredi society in an entirely different manner.3

Be that as it may, the phenomenon is quite prevalent in halakhic handbooks, in which multiple opinions will be cited, with the more stringent option given preference.  Sometimes the more lenient opinion will be cited in the body of the text, while at other times it is relegated to a footnote, or simply referenced without comment. 4  In one form or another, however, one gets the sense that the lenient position, while legitimate, should be shunned, unless in times of great need.  It goes without saying, moreover, that there is a selective process with regard to whose opinions get cited, even as the eschewed lenient position.  Which Hilchot Shabbat handbook quotes Rav Soloveitchik’s more mekil positions regarding brushing one’s teeth, preparing tea, or warming foods on Shabbat?

To my mind, this tendency has unfortunate consequences for pesikat halakha.  For starters, the “psak” given in the book isn’t really a psak halakhaPesikat halakha entails a serious intellectual and sociological exercise that takes into account erudite questions of hermeneutics, tradition, and sociological considerations.  Soft stringency is a statement of piety which goes beyond those factors and considerations by essentially ignoring them.  How or why the posek came to a given conclusion is irrelevant – we have a makholet, so let’s err on the safe side.  Writers might retort that the stated intent of these works is only to inform one of the different positions, but not to replace asking a she’elah.  Yet if that was the case, then one should simply write the different opinions, without passing judgment.  Moreover, intended or otherwise, it is clear that in effect, people “answer their she’elot” through these works, and therefore they function as piskei halakha.5

Sensitivity to the Human Condition

More fundamentally, however, the approach of “soft stringency” frequently ignores one of the more significant elements of responsible piskei halakha:  sensitivity to human factors.  As we all know, halakhists have always employed an array of legal principles to remain sensitive to exigencies of the human condition (hefsed gadol, shalom bayit, etc…).  Of course, certain laws or psakim, reflective of either a Divine text or an intellectually honest understanding of sifrei halakha, can ultimately lead a posek to decide the law in a manner which leads to heartache and anguish, frequently despite the posek‘s best wishes.  Nonetheless, piskei halakha attempt, whether explicitly or implicitly, to preserve values such as kavod ha-briyot, when possible.

Let us now imagine the following scenario:  One posek, inspired by factors of kavod ha-briyot, shapes the sources in a manner that allows one to be mekil.  Another posek, on the other hand, either because they do not consider the factors at hand to be worthy of kavod ha-briyot considerations, or alternatively, does not think one can honestly construe the sources toward a mekil decision, rules lechumra.  What does the advocate of “soft stringency” do?  He goes lechumra.  Yet is the pious decision?  Perhaps he is being mekil in kavod ha-briyot?  Is that not also an important factor in halakhic behavior?

I would now like to give an example of a psak in a halakhic handbook which I believe entails all of the above factors:  Soft stringency, an incomplete or inaccurate presentation of the range of halakhic opinions, stringency to prevent popular misunderstandings of halakha (ala the factor of halakha ve-ein morin ken) and (unintentional) insensitivity to kavod ha-briyot.  Before doing so, however, I want to stress that my criticism is launched at this specific passage in the book, and not the author himself, or even the book as a whole.  In fact, I think the book as a whole has many virtues (as I noted in a previous post), and the author should be commended for his contribution to klal Yisrael.  Nonetheless, the specific psak in question is an egregious example of irresponsible writing, and must be publicly corrected.  Nonetheless, to try to indicate my overall respect for the author and the book, I will not mention the author’s name, as there is nothing personal in this criticism.6.

Can One Speak to Someone Wearing a Hearing Aid?

rav-shlomo-zalman-auerbach

The use of a hearing aide on Shabbat has long bothered poskim.  While a more thorough explanation of the halakhic issues are beyond the scope of this blog, suffice to say that a hearing aide basically works the same way as a microphone: it converts sounds waves into electrical signals that can be adjusted to control the sound’s volume.  (For a brief explanation of the halakhic issues on this topic, see my recent Ask the Rabbi column in The Jerusalem Post.)7 The vast majority of mid-20th century poskim, for one reason or another, prohibited the use of microphones on Shabbat, even if the microphone was turned on before Shabbat (e.g. no electric circuit would be opened).  The question thus arose regarding the appropriateness of using a hearing aid on Shabbat.  In addition to questions of muktzah and hotza’ah (carrying in a public domain), a major question became whether one could speak to someone wearing a hearing aid.  Is this essentially the same as speaking into a microphone, or could one distinguish between the two cases?

The halakhic issues are complex, but in the end of the day, a series of major league poskim all conclude that not only is it mutar to use a hearing aid (when turned on before Shabbat), but that it is also mutar for someone to speak to a hearing-impaired person who is wearing one.  For many poskim, the basic heter stemmed from the fact that the increased current generated by speaking into the hearing aid does not violate any Shabbat issurim, and that any of the other side issurim (avsha milta, shema yitaken kli) associated with microphones are not applicable to hearing aids.  While each posek took a slightly different approach, it remains clear in the writings of many of these poskim that the wellbeing and dignity of the hearing impaired was a major concern that inspired a heter.  Take, for example, Rav Yitzchak Weiss (Minhat Yitzchak 3:41), who put together a series of different arguments (snifim) to build his heter, even invoking the factor of kavod ha-briyot docheh lo ta’aseh.  The imprint of Rav Shlomo Zalman Auerbach’s (relatively mekil) writings on electricity are clearly felt in these teshuvot, and certainly made it easier to issue a heter (Minchat Shlomo 1:9).  In addition to Rav Shlomo Zalman and Rav Weiss, other poskim who rule leniently include Rav Ovadiah Yosef (Yabia Omer 1:9) and Rav Eliezer Waldenburg (Tzitz Eliezer 6:6).

Igrot Moshe

To the best of my knowledge, the closest opinion, at least at the time of publication of The 39 Melachos, to asserting that one should not speak to someone wearing a hearing aid is that of Rav Moshe Feinstein.8 After ruling the microphones are assur in the previous teshuva (Igrot Moshe OC 4:84), Rav Moshe subsequently addressed the issue of hearing aids.  In the first several paragraphs, he aims to show why the halakhic concerns in microphones are not a problem with hearing aids that have been turned on before Shabbat.

Regarding the essential halakhic violations, he concludes,

ונמצא שמאלו איסורים הברורים שאיכא במייקראפאן ליתנהו במכונת השמיעה.

This conclusion is reached partially because he recognizes that there is tzorech gadol here to allow the person to wear the hearing aide.  Equally important, he recognizes the fact that the actual issurim with regard to microphones, and certainly hearing aids, are not particularly clear.9  As such, it becomes inappropriate to rule stringently in such a scenario.

נמי אינו איסור ברור ואף לא ספק ברור, וכמדומני שבמכונה ליכא חלוק בהדבורים וממילא ליכא חשש זה כלל, ולכן גם בשביל חשש זה שאינו ברור אין לאסור לחולה ולצורך גדול כזה כדלעיל

Despite these sentiments, Rav Moshe ends his teshuva with a surprising conclusion.  Noting that the heterim of psik reisha or davar she-eino mitkaven wouldn’t apply here, he concludes that it would be best to communicate indirectly with the hearing-impaired, or to alternatively ensure that a second person is in the room (thereby making the hearing-impaired person a secondary or unintended receiver)

ולכן כשאפשר טוב שלא ידברו ביחוד להחרש ותועיל המכונה לרוב הדברים שצריך לשמוע שהוא למה שמדברין בכלל לעלמא כגון מה שצריך לשמוע כשהוא נמצא ברחוב ובביהכ”נ ועל הדברים ששואל ישיבו לו שלא בדבור אלא ברמיזה, ואם א”א כעובדא זו שהיא קטנה בת שש שמוכרחין להשיב לה ולפעמים דוקא בדבור אין לאסור.

He does note, however, that if this is not possible or feasible (such as when dealing with children), then there is no prohibition to talk directly to the person.

I admit that I do not fully understand Rav Moshe’s position.  Given that he just finished explaining why there is really no halakhic problem here at all (me-ikar ha-din), and that there is a general need to be mekil to help the hearing-impaired, it remains unclear to me why he believes one should try to err on the machmir side.  In effect, Rav Moshe seemingly makes the dichotomy that we need to be mekil with regard to allowing one to wear a hearing-aide, to avoid endangering the person, but do not need to be mekil (e.g. we do not consider it a tzorech gadol) to allow prosaic conversation.  I struggle to understand this distinction, since it seems to me that most would consider it to be tzorech gadol to have regular conversation (just try getting the silent treatment for 25 hours by all of your friends and family). Be that as it may, Rav Moshe himself allows one to be mekil on an individual basis, and certainly understands this to be necessary in the case of little children.

39 Melachos

Imagine now you are a writing a book on Hilchot Shabbat as the year 2000 approaches.  Rav Moshe Feinstein was inclined to say that people should be hesitant to speak alone to people wearing hearing aides, but Rav Ovadiah Yosef, Rav Yitzchak Weiss, Rav Eliezer Waldenburg, and Rav Shlomo Zalman Auerbach (the pre-eminent posek who most dedicated himself to understanding electricity in the 20th century) all ruled that one should be mekil.  Moreover, you are probably aware of the fact that there are techno-halakha experts, such as those that work in the Zomet Institute, who think that even microphones themselves can be mutar on Shabbat, when they are set to turn on before Shabbat.  How would you rule, given the serious issues of dignity and safety for the hearing-impaired?

I would write the following:  “The rabbinic consensus is that one can speak without hesitation to those wearing hearing-aids.”  In fact, this is indeed how Shemirat Shabbat Ke-Hilchata ruled.  In the initial volume (Vol 1, 34:28, p.479), Rav Y.Y. Neuwirth explicitly rules that one may wear a hearing aid on Shabbat, and also adjust the volume according to need (as long as one does not open an electric circuit or heat any wires in the process, which does not pose a problem in contemporary hearing aids).  In the follow-up volume of addenda (Tikkunim p.57), Rav Shlomo Zalman Auerbach explicitly added that it is mutar to speak with someone wearing a hearing aid.10

Let’s see, however, how the halakha is written in the work, The 39 Melachos (Vol 4, p. 1236-1238).  The author initially explains that the consensus of poskim asserts that, for one reason or another, microphones are forbidden on Shabbat.  The author then states that one may wear a hearing aid, as long as they do not adjust the controls (more on this latter clause shortly).  Then he dedicates a separate section entitled “Speaking to the hearing aid wearer.”  Let’s outline the different stages of his presentation.

1)      At first he notes that there is a halakhic problem, since speaking into a hearing aid is akin to speaking into a microphone.

2)      He then notes that there is a “firm basis” to speak, since many poskim believe that appliances using only electric current and no light do not involve any melocha me-deoraitta, and that while rabbinic ordinances are involved, these can be waived in the cases of serious physical of health needs.  In the footnotes, he cites Rav Shlomo Zalman’s position, as quoted by Shemirat Shabbat ke-Hilchata, and also Rav Moshe’s teshuva which understood that speaking a hearing aid is me-ikar ha-din mutar.

3)      He then warns, however, that the waiver of a Rabbinic ordinance “is not its repeal.  It is merely a Halakhic consideration for certain difficult circumstances.  Therefore it is best (according to this second view) to avoid talking ‘one on one’ to the person through this hearing aid.”  Since this is based on Rav Moshe’s position, he then adds that one may always talk directly to a child.

4)      He then adds the following, “Some outstanding authorities assert that there is no Shabbos transgression whatsoever with speaking to a person wearing a hearing aid (although a microphone is still forbidden for different reasons).  Based upon this last view, use of a hearing aid on Shabbat would be permitted without restrictions.”

Having now laid out the makhloket ha-poskim, which he seemingly deems to be between Rav Moshe and Rav Shlomo Zalman, he now issues his final ruling.

“However, since this is a matter of Halakhic dispute amongst the foremost poskim (with some restricting their use), one should avoid compromise if possible and not speak individually to a person wearing a hearing aid on Shabbos.”

 In other words, the superior value here is chilul Shabbat.  As such, one should avoid compromising on this, and avoid speaking alone with a person wearing a hearing aid.  What about other values, like kavod ha-briyot?  What about the long list of major-league poskim who were mekil on this position, partly because they understood that there is no issur in altering a circuit, and partially because they felt that there was a competing value here which compelled us to look for a reason to be mekil.

Lest one think that I am misreading his intent, please note that when he references hearing aids in other parts of the section dedicated to electric appliances (e.g. home intercom systems, battery operated appliances) he states that it is forbidden (p. 1206) to speak into hearing aids, or at least “preferable not to speak directly into” the ear (p. 1216).  He then only references his lengthier discussion on hearing aids, thereby re-emphasizing his belief that this is the preferred position.

What I find remarkable is that in the case of the home intercom system, he mentions that there is room to be mekil in cases of need, such as a sleeping baby who is not near its parents.  He then footnotes Rav Shlomo Zalman’s fundamentally mekil ruling regarding altering currents, and also notes that Rav Moshe himself understood this to be mutar me-ikar ha-din.  I simply find it difficult to understand how he does display the same type of sensitivity and discretion for the hearing-impaired, especially given the clear inclination of the vast majority of poskim (including Rav Moshe!) to believe that this action is essentially mutar.

Adjusting Volume

A similarly egregious line is the following paragraph.  When addressing whether or not one may adjust the volume on the hearing aid, he writes, “It appears that a large consensus of Poskim rules that the volume controls may not be adjusted on Shabbos, but should instead be taped or covered before Shabbat.  However, some Poskim permit adjusting the volume if it is known without a doubt that changing the volume will not ignite any sparks or indicator lights, and will not cause any internal wires to glow.”

Where does this psak come from? In earlier addition, one does not know who is the source of the permissive position, but in the 2004 corrected edition, the footnotes cite both Shemirat Shabbat Kehilchata and Shu”T Be’er Moshe (1:17:6).  One can similarly find mekil positions in both Nishmat Avraham (Vol 5) and the Encyclopedia of Jewish Medical Ethics, who do not bring a makhloket on this issue.

So who exactly forbids this?  In the notes, he cites a number of poskim, including Rav Y. E. Henkin, who, when referring to older models of hearing aids, asserted that one must fasten the hearing aids in a manner “so that one will not come to turn them on or off.”  As Rabbi Elysha Sandler has already noted (Journal of Halacha and Contemporary Society 41, p. 67), there is a huge difference between turning on and off a hearing aid (which creates or closes a circuit), and adjusting the volume (which merely alters it).  I fail to understand why the author cites these sources as prohibitive.  My best bet is that he understood these sources to mean that to prevent people from turning on/off the aids, one would have to prevent any change in volume.  Yet it is clear that the major concern was turning on/off the device, and remarkably, the author knows this himself, since he posits in the end of his footnote that one might make this distinction!  That being the case, I wonder, as does Rabbi Sandler, how the author can write that we have a major makhloket poskim here, and earlier on (p.1236) state a default rule that one may not adjust the volume.

Please note that I am not arguing that one could not theoretically contend that changing the volume is problematic for some other given reason, and that despite our best wishes, we have to rule stringently, at the unfortunate cost to the hearing impaired.  Rather I am contending that a) the sources provided do not attest to the halakhic makhloket that the author claims to exist on this topic, b) the author himself seems to know this, and therefore c) it is inexcusable to write and pasken in this machmir manner, especially given the implications for the dignity of the hearing-impaired.

Conclusion

Putting this all together, I think we have the following phenomenon included in this problematic passage:

1)       Soft Stringency, where the primary concern is Hilchot Shabbat, to the exclusion of all other values

2)      An inaccurate perspective on the full range of halakhic opinions, presenting a dominant stringent tendency that does not exist amongst the poskim

3)      A subsequent insensitivity to the dignity of the hearing-impaired

Why does this occur in such an egregious manner in our case?  I cannot be for sure, but I sense a subtle yet clear tension in these chapters.  On the one hand, the author wants to accurately present the various halakhic issues and real-world applications, as he does so well in other areas of the book.  On the other hand, he is afraid of presenting too mekil a position, as he fears that this might lead to general confusion and serious violations through electricity.    As I will show in a forthcoming post, this is a clear phenomenon in other psakim regarding electricity and Shabbat.

Yet polemics, especially outdated ones, cannot justify this type of writing, and the dignity of the hearing impaired – and our community as a whole – suffers from such presentations.

 

  1. This point was also highlighted by Rabbi David Brofsky in his comments to my previous post. []
  2. Seemingly, once any given practice becomes a societal norm, it becomes more and more difficult to view these chumras as reflection of personal sacrifice or yirat shamayim.  Subsequently, therefore, the chumra is seen less as a sign of individual piety, and more of a proof of communal piety, and even proof of religious superiority.  This phenomenon requires further exploration. []
  3. See Benjamin Brown, “Soft Stringency in the Mishnah Brurah:  Jurisprudential, Social, and Ideological Aspects of a Halakhic Formulation,” Contemporary Jewry, Vol 27 (2007). []
  4. This is a particular danger, parenthetically, with regard to the English version of Shemirat Shabbat Kehilchata.  In the original Hebrew version, one finds many important notes and caveats in the footnotes, including a few leniencies.  The English translation, however, entirely omits these footnotes. []
  5. Furthermore, as I noted in previous post, one frequently finds in these works piskei halakha that do not include thorough argumentation, even in the footnotes.  Such psakim are almost never included if they are le-kulah, because a leniency would require justification.  As such, what is sometimes the ultimate result?  Da’at Torah + Mussar.  Accept the machmir position, without understanding or caring about the reasoning, because this is religiously praiseworthy. Granted, this last scenario is not reflective of all, or even most, paragraphs in the given books.  Nonetheless, it highlights the larger phenomenon of how halakhic handbooks, which are frequently consulted by rabbis in issuing psak halakha, have changed pesikat halakha, and not necessarily for the better.  I hope to return to this matter in a forthcoming post. []
  6. Unfortunately, it remains impossible not to mention the book’s name []
  7. For a detailed discussion regarding hearing aids, see Rav Elysha Sandler’s excellent article in Volume 41 of the Journal of Halakha and Contemporary Society. For more on the topic of electricity and Shabbat, see here for an article by Rabbi Michael Broyde and Rabbi Howard Jachter. []
  8. In a followup article, I hope to discuss a very recent halakhic handbook which lists a contemporary leading posek who rules stringently in a more definitive manner, but this is irrelevant for our discussion of The 39 Melachos, first published in 1999. []
  9. In fact, Rabbi Yisrael Rozen of the Tzomet Institute writes in Techumin 15 (= Crossroads 5) that there is really nothing inherently wrong with microphone systems, and following the haskamah of R’ Chayim David Halevi and R’ Shaul Yisraeli, he allows for microphone systems to be employed when necessary precautionary measures are taken.  He further contends that the rabbinic inclination to forbid microphones in the mid-20th century stemmed from polemic concerns with the Conservative and Reform movements. We will discuss this position in a future post. []
  10. I assume that this was  done A) to clarify what was obvious beforehand, since adjusting the volume and speaking to a person does the same thing – it alters the current, but does not open or close it;  b) to clarify that the heter to wearing a hearing aid also means that people can talk to the hearing-impaired person; and c) to combat those who whisper or state outright that this should be assur. []
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