Initial Thoughts on R. Henkin as Posek

Laurie Novick Tradition Online | January 6, 2021

R. Yehuda Herzl Henkin zt”l

On the morning of December 23, less than two days before his death, mori ve-rabbi Rav Yehuda H. Henkin zt”l was still issuing halakhic rulings. That day, he presented the group working on COVID-19 policy for Yoatzot Halacha with guidelines for helping women navigate halakhic and health concerns related to the vaccine. With his loss still fresh, it is hard to imagine that he will not be continuing to offer his guidance to us Yoatzot Halacha, to the many tens of thousands of women whose lives he has impacted through our work, and to rabbis and laity worldwide. 

In my capacity as a responder on Nishmat’s Yoetzot Halacha website, it was my privilege to work under R. Henkin’s guidance for seventeen years, on more than 10,000 nidda questions and numerous other points of halakha. I also merited to spend many hours discussing other Torah matters with him. In order to provide a greater sense of what we have lost, I offer here some preliminary thoughts on his methodology of pesika in his collected responsa, Benei Banim.

These notes will draw from his teshuvot directly related to nidda, tevila, and contraception, areas of focus for our work together. Though R. Henkin’s wide-ranging halachic corpus deserves more comprehensive treatment, summaries of salient points from this sampling of teshuvot, supplemented by occasional notes based on his day-to-day work in the field, have much to teach us about his overall halakhic approach.1

Defining the role of a posek, R. Henkin once wrote that, “Besides scholarship, the posek needs the intangibles of intuition and insight, experience and common sense.” A picture of R. Henkin as a posek who met this description and exceeded it emerges from even this limited study.

Before we get started with teshuvot, an introduction: R. Henkin, grandson of Rav Yosef Eliyahu Henkin zt”l, one of the foremost posekim of the twentieth century, studied intensively with his grandfather in America before making aliya in 1971 and establishing himself as a first-class halakhic authority as Regional Rabbi of the Beit Shean Valley and the Southern Golan. In the ensuing decades, he published four volumes of Benei Banim (Hebrew, 1981-2004), as well as numerous other works of halakha and Biblical exegesis, most recently last summer’s Mahalakhim Ba-Mikra.

The way that Rav Henkin introduces the first volume of his responsa is revealing. As was his wont, he quotes a familiar trope—in this case, the parable of dwarfs on the shoulders of giants—to interrogate it and open up new avenues for analysis.

In the Introduction to Shibbolei HaLeket, the author asks how we can discuss and contradict the words of the early halakhic authorities, and he resolves the issue in accordance with the parable of Rav Yeshaya Di Trani, that we are like dwarfs riding on the backs of the giants and therefore see farther than they. But it still demands explanation: who revealed to him that he merited understanding the words of the early authorities? And who set him astride the back of the giant? Indeed, thus is the way of Torah…we need to climb onto the backs of the giants and rely on their rationales and explanations. But God gave us the strength to climb and sit on their backs, and to understand the words of the earlier authorities, from much exertion and travail, and through this sometimes to see far.

God is the ultimate source of the dwarf’s strength and farsightedness, but the dwarf manages to scramble onto the giants’ shoulders through his own, substantial effort. It is the understanding of the earlier halakhic authorities that the posek achieves through “much exertion and travail” that enables him, “sometimes,” to trust that he in fact sees far. 

R. Henkin takes nothing, starting with his own authority, for granted. Even the name of his responsa, Benei Banim, acknowledges his debt to his renowned grandfather, while its content highlights the fruits of diligent study. As he writes in his introduction to the second volume, “Along with the few talents that I inherited [from my grandfather], I delivered myself to clarifying the truth of the halakha.”

The great corrective for limited vision is a commitment to original thinking and research. As R. Henkin wrote earlier in the first introduction, “I did not take matters as received, but rather I checked after them to see if they would stand.” Finally, introducing the third volume, he expanded on the nature of his efforts, describing himself as taking multiple passes at reading all relevant sources “each time with greater precision.” 

Precise and original analyses in pursuit of halakhic truth are hallmarks of the responsa in Benei Banim, and of R. Henkin’s supervisory work for Nishmat’s Yoatzot Halacha. 

Brown Stains: Close Reading, Context, and Trust

Even a seemingly mundane halakhic response can point at essential traits of a posek, some of which become clearer off the page. In Benei Banim I:29 (1977), R. Henkin discusses the case of a woman who had a brown stain on a synthetic undergarment and asked if this rendered her nidda only after she had already laundered it. 

Stains on synthetic fabric can typically be disregarded, since such a surface does not receive ritual impurity.2 Still, R. Henkin discusses opinions according to which knowing the stain came from a woman’s body would render that leniency inapplicable. His final ruling that the woman is not a nidda rests on two halakhic factors: the stain’s color and the woman’s halakhic credibility.

Regarding the first factor, color, R. Henkin acknowledges the paucity of early halakhic sources referring to shades of brown. Given the prevalence of brown stains, this silence is both surprising and keenly felt. His transparency about it comes together with a fascinating argument to address it:

In Shir Hashirim 1, “I am black and comely, daughters of Jerusalem… Don’t be afeared of me for I am blackish, for the sun has tanned me.” Therefore, before the tanning the language “black” does not apply to them, and presumably they had skin of the color of Sefaradim today and like the Israelites in the time of the Mishna (viz. Nega’im 2:1), and therefore regarding a light brown, such as  beige, one need not be concerned that this is a color of [nidda] blood. The halachic authorities use the language “broin” in the vernacular because what we call brown does not appear in Tanakh or in the Talmud… and if so, what name did they give to what we call brown? Rather it certainly was included in the word “black” (Benei Banim I:29).

Here, a close reading of Tanakh supports a final ruling that this woman’s stain as she describes it was not a nidda color (though darker browns could be, as forms of black). 

In his responsa, R. Henkin consistently considers whether a ruling based on a close reading can square with more stringent opening positions. In the case of proposed leniencies, testing and contextualizing help determine their proper application, so that they remain well-rooted in halakhic discourse. Here, R. Henkin demonstrates that even a mainstream authority who was stringent about stains that definitely come from the body was lenient about browns in all circumstances.

R. Henkin takes up the second factor, a woman’s credibility, only in passing. Its significance for him emerged more clearly through his work with the Yoatzot Halacha. In the teshuva, he treats the question as calling for straightforward application of the halakhic dictum that “a woman is given halakhic credibility to say, ‘I saw something like this, and I lost it’” (Nidda 20b). He also notes that he had shown her color samples of a range of browns, to confirm that he understood precisely which color she meant. This is fairly standard.

Supervising Yoatzot Halacha, however, R. Henkin demonstrated the extent to which he viewed halakha’s trust of women as a guiding principle. He guided us—entrusted us—to freely apply his ruling about brown stains. Although written halakhic works tend to be more stringent than oral teachings, he also instructed us to write to women on a routine basis that discharge of a light brown color with no hint of a reddish tint was not a nidda color, even on a hefsek taharah. In practice, he did not require women who were confident that their stains or bedika cloths met this description to show their stains to or review other colors with a halakhic authority.3

 

R. Yehuda Henkin and Rabbanit Chana Henkin (center) at last year’s Nishmat Yoatzot Halacha graduation ceremony. The author is at bottom left. (Photo credit: Shimrit Binyamin)

Contraception: Grandfather and Grandson

R. Henkin’s responsa often elucidate and apply the rulings of his grandfather. In Benei Banim I:30 (1978), he takes up the elder R. Henkin’s position that a diaphragm with spermicide is a halakhically permissible form of contraception. Emboldened by his grandfather’s ruling and by close readings of early authorities, R. Henkin systematically counters R. Moshe Feinstein’s reading of the relevant Talmudic sugya and resulting pesak limiting diaphragm use to a narrow range of cases (Iggerot Moshe E.H. I:63).

R. Henkin first works through a number of early authorities to argue that a moch (cloth wadding) would be used to impede sperm after relations, thus providing no precedent for diaphragm use during relations. He next claims that use of a diaphragm during relations can nevertheless be permitted because it differs substantially from a moch in size and in placement. He adds that placing the diaphragm and spermicide in advance of relations is a form of geramma (indirect action) and blocks the sperm rather than actively removing it, thus skirting the question of whether a woman is permitted to destroy a man’s seed.

Of perhaps greater interest, R. Henkin explains his grandfather’s ruling that contraceptive use may be permitted for years in order to space children, even before the mitzva to procreate has been fulfilled. He adds his own proof, based on the halakha that a mother is permitted to nurse a child after age two when there has been no break in the nursing. This is the case even though nursing may have contraceptive effects.

It is known that when a woman nurses for more than two years, sometimes she will not conceive on account of the nursing. How did they permit her to delay the husand’s mitzva to procreate for something that is not a matter of danger [to the nursing child]? One must say that since it is for the good of the child that she continue to nurse, this too is permissible and is included in the mitzva of procreation, and with this the words of my Grandfather are explained…If a question comes, I clarify if the woman wants to prevent future pregnancy for the sake of her current child or in order to go off to work (Benei Banim I:30).

Here R. Henkin moves from explaining his grandfather’s ruling to applying it. In practice, he permitted women to space children for two years as long as attention to existing children was a main factor in their decision. Permission to space for longer would depend on the specific case. He restates the conceptual underpinning of this halakhic approach more succinctly in a later responsum:

My grandfather permitted [contraceptive use] for four or five years if the woman is occupied with the child, because the mitzva of procreation is not only pregnancy and giving birth but also raising the children (Benei Banim II:38, 1989).

The mitzva to procreate is uniquely complex because the keys to fertility don’t lie in human hands (Taanit 2a). Classic halakhic discourse addresses whether fulfillment of this mitzva is complete with the birth of fertile children or with a man’s efforts toward conception (or some combination).4 The new insight here is that this obligation may extend beyond simply having a healthy, fertile child to include more qualitative aspects of child-rearing.

The responsum in which this line appears is concerned with the question of whether there is a mitzva to have additional children once a son and daughter have been born. Where the first responsum leaves it to the reader to note the sharp contrast between the rulings of R. Moshe Feinstein and the elder R. Henkin, this ruling opens with a statement of frustration at R. Moshe’s not having acknowledged the latter’s more lenient approach to contraception in Iggerot Moshe (E.H. 1:64).

In this case, R. Henkin has no clear tradition from his grandfather. He rules that continuing to have children fulfills a mitzva, but is not obligatory, especially when shalom bayit and financial stability are at stake. In addition to his usual close reading of halakhic authorities, R. Henkin makes his argument by building on his grandfather’s known views:

I’m not aware of [my grandfather’s] ruling on this exact question, but I will write my humble opinion and perhaps in doing so will intuit his vaunted view…. She [the questioner’s wife] need not destroy herself in order to build up the world. What I wrote in I:30 is only to explain the view of my grandfather, who permitted delaying pregnancy for a few years after the birth of a child even if he had not yet fulfilled the mitzva to procreate. But when one has fulfilled the mitzva to procreate and has some more children, there is no need to look into it further, for he is not obligated in a place of sorrow and challenges making a livelihood to add children (Benei Banim II:38, 1989).

Some of R. Henkin’s arguments in this teshuva are more fully original. For example, in the above excerpt, he makes special note of the personal impact of multiple births on the mother, considering her perspective and not only her older child’s needs or husband’s obligations. Additionally, in a summary of the ruling and in its English version, R. Henkin adds that any obligation to continue to procreate would be fulfilled by having a second son and second daughter, in line with the principle that rabbinic enactments resemble their Torah-level antecedents.5

Another point follows from a statement in Birkei Yosef that a man who has fulfilled the Torah-level mitzva need not have relations with his wife as frequently as beforehand, if his wife agrees (E.H. 1:2). R. Henkin suggests that this idea paves the way for allowing the couple to use contraception:

[Birkei Yosef suggested that] it is sufficient [to have relations] at longer intervals, and the verse thus writes “in the evening you should not rest your hands,” that you not let it rest altogether… According to this…what difference does it make if he doesn’t have relations at all or if they have relations with a diaphragm, which is itself permitted (Benei Banim II:38).6

This argument, that using contraception should be no less permitted than spacing relations, foreshadows Benei Banim IV:15 (2003). In this teshuva, R. Henkin does not generally permit a couple to push off procreation indefinitely after they wed, but does grant blanket permission to use contraceptives for up to six months from the wedding. Six months is the maximum interval permitted between relations when the husband is a sailor and spends much time at sea: 

I customarily permit a couple to prevent pregnancy for up to six months after the wedding, for a groom would be permitted to choose to be a sailor, whose minimum obligation to have relations with his wife is once every six months… Naturally he would not fulfill the mitzva to procreate during that time… The span of six months is enough to address most of the hesitations and fears approaching marriage, especially from the side of the bride, who may be concerned that the marriage will not go well (Benei Banim IV:15).

Engaged couples frequently raise a number of shared reasons why they might prefer to delay conception. But the concern that the marriage won’t work is often a major unspoken factor underlying such hesitations, especially for the bride who would carry the pregnancy. The elder R. Henkin’s qualitative approach to the mitzva of procreation paves the way for his grandson to recognize concerns about the beginning of marriage as a relevant factor in permitting contraception.  [See here for more on R. Henkin’s rulings on family planning.]

Again, that factor only allows R. Henkin to go as far as he thinks the sources can take him. In practice, when couples would ask about contraception at the beginning of marriage, R. Henkin advised Yoatzot Halacha to repeat his ruling, and then to suggest that the couple seek further halakhic counsel if they sought to extend this timeframe. In my experience, his ruling diffused young couples’ immediate concerns in a way that encouraged them to explore the relevant issues with the gravity that halakha requires. 

Nidda Questions: Understanding the Situation

In a number of nidda questions, R. Henkin displayed another important aspect of his work as a posek – his ability to connect sources with a deep grasp of the human situation at hand.

For example, in Benei Banim II:31 (1986), R. Henkin permits a pregnant convert to remarry her husband in a Jewish ceremony right after conversion. First, some background: A bride usually must observe seven blood-free days in advance of her wedding out of concern for dam himmud (uterine bleeding stimulated by her excitement at the upcoming events), even if she is not ritually impure from menstruation.7 R. Henkin ruled that the bride in this case need not observe seven clean days before the Jewish wedding ceremony.

Weddings in Israel fall under religious jurisdiction. Rabbanit Henkin related to me that the rabbinic registrar (responsible for filing marriage certificates) was at first hesitant to allow this, but R. Henkin’s arguments convinced him, as did a surprise visit and expression of assent from R. Shalom Messas, then Chief Sefardi Rabbi of Jerusalem, who makes an appearance at the end of the responsum.

R. Henkin provides three reasons for his ruling, backed up with close readings of sources: the woman’s case is stronger than that of a divorcee reconciling with her husband, who arguably need not observe seven clean days; concern for dam himmud may apply specifically when both the wedding and marital relations will be new for the couple; the wedding proposal, which is typically the trigger for a woman becoming subject to this halakha, took place for this convert before she was Jewish and subject to the Torah laws of nidda. R. Henkin understood the practical importance of this woman being able to marry as soon as possible and found cogent backing in traditional sources to permit it. (He and Rabbanit Henkin also made the wedding in their home.)

In another question (II:32, 1986), R. Henkin responds to a rabbi who ruled that a woman with head lice needs to treat her condition chemically prior to immersion. Here, R. Henkin distinguishes scientifically between three different types of lice: head lice, body lice, and crab lice. He then categorizes the relevant traditional sources, sometimes based on subtle textual clues, according to the type of lice they discuss. R. Henkin notes that a requirement among later halakhic authorities for more vigorous delousing must refer specifically to crab lice, which adhere to the skin. Again, his ability to apply a factual grasp of the situation to tease out more precise readings of the key texts allows him both to uphold the earlier viewpoints and to allow for immersion after a reasonable effort at combing, even if some eggs or even lice might remain. 

We see a similar depth of understanding in a response to the question of whether a woman can immerse in the mikve when her husband is out of town (II:33, undated). For a combination of reasons, some kabbalistic and others related to perceived danger, women in this situation are often encouraged not to immerse until their husbands’ return. So, for example, a woman whose date for immersion might arrive during the husband’s absence would delay her mikve visit until the night of his return, only immersing earlier if he is set to arrive during the day or if there are other extenuating circumstances.8

R. Henkin follows some later authorities in permitting women to immerse earlier if there is even a chance that their husbands may return home before they next become nidda. But then he adds an important point about implementing the ruling:

If her husband is set to come the next day, for example in the morning, then it is a mitzva to immerse beforehand in order that they be permitted to each other with respect to hugging, kissing, and other intimacies, for they too are a mitzva… Even if her husband arrives in the evening and is tired and worn out and will need to watch the children while his wife prepares for mikve and immerses, this is not “ways of pleasantness.” Rather, she should immerse in advance…. It is quite common in Israel that a husband serving in the army gets a one night furlough and there is no time to notify his wife before he sets out on his way, and he arrives in the middle of the night when it is no longer possible for his wife to immerse in the mikve, but he must return the next day (Benei Banim II:33). 

Instructing a woman to wait to immerse until after her husband returns will affect the tenor of their reunion. Even when the husband would be expected at night, R. Henkin suggests that his wife immerse earlier. When women would ask this question on yoatzot.org, he directed us to recommend immersing at least a night in advance, and certainly earlier if the husband might return sooner than expected.

Sometimes his practical bent shows shades of rationalism. Even so, R. Henkin relates in this responsum with great respect to more restrictive practices, such as not immersing when the husband is away, or sleeping with a knife under the bed, based on concern for danger to a woman who immerses when her husband is absent. Rather than disagree or dismiss these concerns, he explores them, and finally notes that post-Talmudic concerns about danger only apply in communities in which the danger is perceived to truly exist. On the website, he instructed us to distinguish between fundamental law and custom, and to encourage women to follow their custom in this matter when they had one.

So, too, in response to a radical proposal to change the halakhic categorization of dam betulim, hymenal bleeding (IV:14, 1999). Virgin brides are considered nidda after their first act of relations, a halakha that the questioner sought to reframe. R. Henkin both acknowledged the challenges that observing this halakha can present to a young couple and affirms his commitment to treating every question with respect:

I, too, am fearful about the stumbling blocks that a separation of eleven days after first relations can present to the new groom and bride, and in any case his halakhic proposal is far from the truth…to the extent that it is difficult to relate to [the points raised]. But in any case that which I would not wish done to me I will not do to others – to nullify their halakhic question without discussion (Benei Banim I:14).

Ultimately, R. Henkin does permit a virgin bride to undergo a hymenectomy, circumventing the complications of dam betulim, on condition that she communicate with her hatan, and that the physician attests that no hymenal tissue remains. In practice, when asked this question, R. Henkin guided us to explain the possible halakhic implications of hymenectomy, but not to encourage women to undergo an elective surgical procedure.

Tevila for Teshuva: Women’s Motives and Potential

On women’s issues, R. Henkin was known for his fundamental respect for women’s motivations and potential. His responsum on Erev Yom Kippur immersion (III:5, 1993) illustrates this beautifully. Many men, and a number of women, have the custom to immerse on Erev Yom Kippur.9 At the same time, single women are generally prohibited from immersing in a mikve by a fourteenth-century decree (Teshuvot Rivash 425). In this teshuva, R. Henkin permits single women to join in the custom.

As usual, R. Henkin first quotes the permissive precedent of early and later authorities on this matter. He then notes that the concern that motivated the decree, that such immersion would foster promiscuity, does not apply to an annual immersion for the purpose of teshuva, with no preliminary steps undertaken to remove a woman’s nidda status.

R. Henkin suggests that younger women go to the mikve with their mothers, as a further step to ensure that they immerse with seriousness. He adds that local rabbis may have reason to rule more stringently than he for their communities.

At another point in the same responsum, R. Henkin addresses the claim that women cannot immerse because immersion facilitates resembling angels on Yom Kippur, and women cannot resemble angels. 

For we do not come to resemble angels in their masculine aspect, but rather for matters of Yom Kippur, and in this women can resemble them well… For behold on Yom Kippur, with respect to eating and drinking and going barefoot and cleansing from sin, there is no distinction between men and women (Benei Banim III:5).

As usual, R. Henkin treats the argument with respect before he counters it. He further supports his claim with sources that establish that reciting “barukh shem kevod malkhuto le-olam va’ed” aloud in Shema is an act that resembles angels, in which women freely participate. Ultimately, his argument is animated by the belief that spiritual potential is not defined by gender.

Parting Thoughts

If there is one common thread to all of these teshuvot, it is R. Henkin’s commitment to showing how the words of earlier and later halakhic authorities can be read and applied faithfully in a way that meets the needs of today. Some who teach halakha would claim that current conditions render many prior positions irrelevant or out of touch. Others reject modern, or post-modern, perspectives out of hand, as irreconcilable with classic halakhic texts. R. Henkin staked out a different path. 

He connected past to present not by playing fast and loose with the texts, but by reading them with exceptional precision. Whether a given ruling is lenient or stringent, the arguments behind it always seek to show how it fits into halakhic tradition, on which giants’ backs it sits, and what footholds were found on the climb. 

By learning from R. Henkin’s honesty, precision, consideration of multiple viewpoints, original inferences, trust of his questioners, family heritage, depth of understanding, respectful discourse, and belief in all Jews’ spiritual potential, perhaps we, too, can learn to see far.

Laurie Novick is Director and Head Writer of Yeshivat Har Etzion’s Deracheha: Women and Mitzvot, a Yoetzet Halacha and writer for yoatzot.org, a Nishmat Fertility Counselor, and has taught for many years at Nishmat.

 

  1.  I hope in the future to have the opportunity to write something more systematic and comprehensive in scope, as well as to record the full range of R. Henkin’s rulings on taharat ha-mishpaha. R. Dov Linzer offered an analysis of R. Henkin’s rulings from a more sociological perspective in his “Pesaq and the Modern Orthodox Community,” The Edah Journal 3:1 (2003). This essay, particularly its conclusion, benefitted from discussion with R. Henkin’s longtime student, R. Da’vid Sperling.
  2. Iggerot MosheD. III:53.
  3.  See, for example, “Hefsek Taharah”: “Please note that according to most halachic authorities, a hefsek taharahneed not be totally clear. If all discharge on the cloth is white, clear, light yellow, or light brown with no hint of a reddish tint, then you can count the next day as the first of the shivah neki’im (seven blood-free days). If the discharge is obviously red, another hefsek taharah will be needed. Any other color should be shown to a halachic authority.” Contrast this with R. Binyamin Forst, A Woman’s Guide to the Laws of Niddah (Mesorah Publications, 1999), 124, “Most stains are brown. Brown is the subject of much dispute among Poskim… One must show any brown stain to a Rav”;  R. Mordechai Eliyahu, Darkhei Tahara (Sucath David, 1984), 30, “Brown – which does not tend to red, like coffee or chestnut—is pure. Since the color of coffee differs in type and there is a doubt regarding the color of chestnuts, whether the intention is raw or cooked chestnuts, one should ask a halachic question with any hefsek tahara or bedikot following an internal hargashah [sensation of menses].”
  4. See, e.g., Rema E.H. 1:6, Teshuvot Radbaz 7:2, Arukh HaShulhanH. 1:19.
  5. The English version can be found in Yehuda Henkin, Responsa on Contemporary Jewish Women’s Issues (Ktav, 2003), 186.
  6. Later in the teshuva, R. Henkin also finds a felicitous reference to six months in a rabbinic text with a connection to a central Talmudic passage about the consequences of delaying conception.
  7. Shulhan ArukhD. 192.
  8. For instance, R. Forst writes: “If her husband is not home, a woman is not required to be tovel. Indeed, according to kabbalah, a woman should not be tovel if her husband is not at home. For example, a couple is away for the summer and the husband remains in the city during the week and joins his wife only for weekends. If the woman’s tevilah is scheduled for Tuesday night, she should not be tovel. If he will return during the next day, or even if there is only a chance that her husband may return the following day, she may be tovel. If her tevilah is scheduled for Thursday night and no mikveh is available on Shabbos, she may be tovel even though he will arrive only shortly before Shabbos” (168). 
  9. Maharil Minhagim, Erev Yom Kippur 3-4.

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