The final halakhah of Tosefta Moed, chapter 2, reads: חכם שמת, הכל קרוביו. The death of the Sage is like the death of direct relatives, black-letter Jewish law prescribing that one tears clothing upon hearing of the loss. Great Sages have a way of penetrating into our lives. Their insights of Torah generate an intimacy with them that can sustain even the absence of familial ties, personal interaction or a shared life narrative.
R. Ovadiah has felt close to me for some time. Never having met him, rarely having heard the sound of his voice, the words of his responsa feel integrated into my religious personality and knowledge in so many ways. As the Jewish people sits shiva for this giant of Torah, it is incumbent upon those of us who feel close to enable his learning and teaching to continue and to reach ever greater numbers of people.
R. Ovadiah lacked neither for controversy nor for enemies. Some of his off-hand remarks appeared one too many times in the Fringe section of CNN’s website. And like many who spend so much of their time within the inner discourse of rabbinic sources, he sometimes forgot how those sources sound unfiltered to the less learned. Others have documented and discussed his more offensive and careless statements over the years, and I make no apology for those. But he was also a gadol batorah—one of the great scholars of his generation, and those of us who study Torah are indebted to him in many ways.
R. Ovadiah will be remembered for a number of his rulings that had vast political significance, many of which have been noted in the wake of his death. He validated the Jewish status of potential immigrants from Ethiopia and India and broadened the reach of the Israeli state and its Jewish demographic base. His heroic work on behalf of agunot in the wake of the surprisingly high losses of the 1973 Yom Kippur War allowed hundreds of women to move on with their lives. His landmark articulation of the halakhic plausibility of trading parts of the land of Israel for peace in order to save Jewish lives enabled Shas to be a part of the governmental coalition that supported the Oslo Accords. On matters large and small, whether as the Rishon Letziyyon or as the spiritual head of the Kenesset’s third largest political party, R. Ovadiah was deeply involved in politics. He forced the State of Israel to grapple with religious matters and urged his religious followers to be politically involved.
But I want to focus here on three dynamics of his internal halakhic process, which are to me even more important than many of his substantive conclusions. These ought to be his primary legacy for those who long for halakhah to have vibrancy and relevance in the years ahead.
An ongoing tension in the history of halakhah is the relationship of the rules articulated by sometimes insular elites to the actual practices of the communities they hope to influence and shape. Poskim make an implicit choice: Do they see themselves as critics and crusaders alienated from the larger community, with a charge to keep the halakhah as pure and free of dross as possible? Or do they deeply identify with their community and use their expertise to bridge the gap between rabbinic expectations and communal realities, both by persuading those they lead but also by articulating in halakhic language the basis for their constituents’ practices?
While every leader does some of both, there is no question that some poskim—particularly in the modern period—are decidedly more sectarian than others. There is also no question that R. Ovadiah was decidedly on the non-sectarian end of the spectrum. Anyone who learns R. Ovadiah’s rulings on the laws of Shabbat sees again and again the ways in which he tried to maximize the plausibility of keeping Shabbat, whether by justifying the use of a toothbrush and toothpaste or by permitting children to play with Legos. These were not tendentious leniencies; they were part of a larger worldview that insisted that the average, religiously committed person in Beit Shean had to be able to observe Shabbat while living a basically normal life. R. Ovadiah was not shy of correcting common practice when he thought it was wrong, but he also clearly identified with the broader Sefaradi and Israeli community and sought to have halakhah take responsibility for them and their lives, even as he expected them to take responsibility for mitzvot.
This perhaps emerges most clearly in his outsized respect for the inchoate religious instincts possessed by the average observant Jew. More than any other contemporary posek—as far as I can tell—R. Ovadiah cites the Talmudic dictum that codifies our respect for common halakhic intuition: !הנח להם לישראל, אם אינן נביאים בני נביאים הן—Leave the Jewish people alone! Even if they are not themselves prophets, they are descended from prophets. More than 50 times this aphorism appears in R. Ovadiah’s responsa, reflecting a sense we need more of in the world of psak: While the language of halakhic expertise is (perhaps appropriately) concentrated in the hands of an elite, the religious instincts encoded by that language are much more democratically distributed within the kingdom of priests and the holy nation that is ‘am yisrael.
Every student of halakhah has experienced the joy of discovering a teshuvah of R. Ovadiah’s on a topic they were researching. Like manna from heaven, such a responsum provides for all the researcher’s basic needs, usually giving a full picture of sources spanning the 2000 years of rabbinic creativity. R. Ovadiah was nothing if not encyclopedic. His memory was epic and his painstaking gathering of sources awe-inspiring.
These are feats and talents worthy of appreciation in their own right, and it is always sad to see such genius—in any field—pass from this world. But his comprehensiveness was also a value statement of its own. A passion for comprehensiveness contains within it a profound conviction: the more you look, the more you may find. בן בג בג אומר: הפך בה והפך בה דכולה בה—Ben Bag Bag says: turn it and turn it, for everything is in it (Mishnah Avot 5:22). R. Ovadiah refused to accept the notion that a surface reading of halakhah generally yielded all there was to say on a matter. Only someone who probed the depths of halakhic literature, through a thorough survey of ancient, medieval and modern sources alike could claim to have reached true understanding. More than once in his responsa, R. Ovadiah dismisses the briefer rulings of great rabbis—such as R. Moshe Feinstein, R. Ovadiah Hedayah and R. Yosef Shalom Elyashiv—with the assessment: לא שידד עמקים. A ruling that does not plumb the depths of halakhic literature and that does not document that research for its readers cannot be the final word.
This, too, is an inspiring and lofty charge. We must demand of ourselves and of our teachers and poskim that they account for all of the data offered in halakhic sources and not to slip in to the cherry picking of those views that conveniently think what we thought in the first place. Moreover, the transparency of sharing that research and the basis for one’s view, while accounting for those who take an opposite position, is critical for repairing the breach in trust that so many in our time feel towards halakhah and those who wield its authority.
Restoring Balance to Halakhic Conversations
Finally, R. Ovadiah’s most remarkable and revolutionary contribution, in my view, is his constant reassessment of the field of halakhic debate, driven by a concern that it not become skewed and unbalanced. Like his obsession with comprehensiveness, this is part of an approach that aims to see the entire map of halakhic discourse, and not just one of its more isolated edges.
Much of the time, this was in service of R. Ovadiah’s countercultural project of pushing back on Ashkenazi hegemony and restoring what he felt to be the rightful dominance of Middle Eastern and North African halakhic voices—להחזיר עטרה ליושנה. In particular, he aggressively reasserted the authority of R. Yosef Karo in the Shulhan Arukh, insisting that all non-Ashkenazi Jews had not only the right but the obligation to follow his rulings by default. In this, he reversed centuries of Ashkenazi influence over non-European halakhah. I remember well studying the laws of kashrut when preparing for semikhah. Time and again, you would see a ruling of the Shulhan Arukh get gradually eclipsed by a position of R. Moshe Isserless, not just among European scholars, but among giants of Middle Eastern halakhah, such as R. Abdallah Somekh and R. Yosef Hayyim Al-Hakham of 19th century Baghdad. And time and again, R. Ovadiah would revive the “pure” position of the Shulhan Arukh from the dead, as in his permission to rely on Gentiles to taste mixtures of kosher and non-kosher food for contamination rather than rely on a 60:1 ratio of nullification alone. [See Yabia Omer VIII:10.]
But more is at work here than just a kulturkampf directed at Ashkenazi halakhic imperialism. R. Ovadiah’s true lesson for us is in never thinking that the debates of the past truly die. I have heard R. Ovadiah’s habit of delivering laundry lists of poskim supporting his view derided as nothing more than an attempt to overwhelm his opponent by numerical advantage. This is a misreading. The heavy-handed use of all the data his disposal is also R. Ovadiah’s way of asserting that positions that become unconventional in a given time and place never really disappear and their ongoing relevance must always be reassessed as those voices may come back to play a more dominant role when the picture is reconsidered later on.
This is most profoundly at work in R. Ovadiah’s prolific use of the halakhic principle of permitting something with a ספק ספיקא—a double axis of doubt. The standard use of a ספק ספיקא is simple. I assess the facts of a given case and identify two axes of concern. If on both axes I can show that there is a reasonable possibility that no problem exists, then I need not worry about the prohibition in question. For example: let’s say a man is uncertain about his status as a kohen, due to questions about various aspects of his lineage that he cannot resolve. Nonetheless, because there is a good chance that he is a kohen, he avoids walking over graves and defiling himself via contact with the dead. Consider also a plot of land with questionable status as a grave. A kohen would avoid walking over that land, for fear that it was potentially defiling. The principle of ספק ספיקא states that our questionable kohen may walk over the questionable grave. It may be that there is no grave here, and even if there is, it is possible he is not a kohen. There are a number of ways to conceptualize why (and when) this would be permitted, but one simple way of thinking of it is that the first axis of doubt reduces my fear of prohibition to 50%–enough that I still act with caution—whereas the second axis of doubt make it more likely than not that there is no prohibition at all, and I can follow this statistical probability as a basis for being lenient.
Now translate this model from empirical to legal reality. Instead of balancing doubtful fact patterns, imagine if we treat conflicting legal views as creating legal and epistemological “doubt.” If a case presented to me features two axes of legal debate—issues 1 and 2 can produce either a lenient or a stringent ruling—I can construct a decision tree with four branches: 1) Lenient1-Lenient2; 2) Lenient1-Stringent2; 3) Stringent1-Lenient2; 4) Stringent1-Stringent2. If the lenient factor in each debate eliminates all possibility of a problem, that means that three of the four potential outcomes produce a permissive ruling, with only one forbidding. Someone living in a tradition that generally follows the stringent ruling on both axes will naturally end up with outcome 4 and forbid. Invoking ספק ספיקא is a way of saying that the legal “doubt” generated by an analysis of all of the positions makes this unnecessary. Since there is only a 25% “chance” that outcome 4 is correct, there is no need to remain on that extreme branch of the halakhic tree.
Let’s make this concrete. R. Ovadiah, in one of his responsa (Yehaveh Da’at V:54), addresses the halakhic issue of Jews consuming food that was cooked by Gentiles. Specifically, he is asked whether there is a way to justify hiring Arab cooks for Israeli hotels without constantly having a Jew present to be directly involved of the cooking of the food.
Two major debates defined earlier discussions of this sort of situation. 1) German rabbis developed the notion that Jewish “involvement” in the preparation of Jewish food could be limited to providing the fire for the cooking, akin to our lighting of a stove or even a pilot light (=Lenient1). Spanish rabbis had no such notion and required actual involvement in the cooking itself (=Stringent1). 2) R. Avraham held that restrictions around Gentile cooking for Jews did not apply in a Jewish home (=Lenient2). R. Tam rejected this exception and thought such laws applied in all spaces (=Stringent2).
The Shulhan Arukh sides with the stringent views in his rulings on both of these debates. R. Ovadiah, however, invokes the principle of ספק ספיקא to permit in cases where both grounds for leniency are present: a Jew generates the fire that is used for cooking and the cooking is happening in a Jewish space (such as an Israeli hotel). Even followers of the stringent positions on each axis need not follow the stringent positions at the same time in a single case. And note that the result is a holding that seems to go against the Shulhan Arukh and push more towards the some of the Ashkenazi positions in this area.
R. Ovadiah uses the principle of ספק ספיקא hundreds of times in his responsa to this sort of effect. This is not merely a quest for leniency. It is an attempt to sense when the balance of the halakhic discourse has gotten out of whack and is beginning to ignore too much of its own data. It telegraphs an ownership of the entire halakhic tradition, not just the views that achieve conventional dominance in a given time and place. Even if R. Tam prevailed over R. Avraham in his own day, R. Avraham’s voice remains a live factor to be contended with once other debates are brought into the mix and affect the total legal composition of a given case. For the Jewish people to deepen their attachment to halakhah, they must share in its richness and complexity. The voice of halakhah will not command respect and admiration by speaking with the harsh monotony of a megaphone, but only by sounding like the rich symphony that it truly is. R. Ovadiah played some of halakhah’s most beautiful music in that regard and, in his responsa, left us much to listen to for many years.
יהי זכרו ברוך—May his memory be a blessing. ותהיינה שפתותיו דובבות בקבר—May his lips continue to move from the grave as we mine his tremendous legacy for ever greater wisdom and insight.