Baal Nefesh Yachmir

Continuing on the prior post… A recurring topic on Avodah is the Mishnah Berurah’s use of the concept of ba’al nefesh yachmir, that while the halakhah itself allows for some leniency, “one who masters their nefesh should be stringent”. (By the way, the idiom only appears 24 times in the MB, although the general notion of going beyond the letter does come up more frequently.)

What is a ba’al nefesh, and why are some chumeros more related to this ideal than someone else’s?

Rav Chaim Volozhiner (Ruach Chaim on Avos 3:1); see also Nefesh haChaim 3:1) defines the ba’al nefesh as:

This is what our Rabbis (Chagiga 12a) intended by: Adam was as tall as from the earth to the sky. And when he sinned, HQBH places His “Hand” on him and reduced him, standing him on two levels.

If he wants, like at the time when he has a neshamah [the higher aspects of the soul], even though he has feet on the ground, his body and essence are planted in the storehouses of on high. And when he sins, the Holy One blessed be He places His “Hand” on him and reduces him etc… two levels — it means to say two steps: nefesh [the soul's more animalistic functions] and ru’ach [its spiritual functions].

והנה הבחירה חפשית באדם ברצותו מהפך חומרו המגושם להיות רוחני, וכן להיפוך חס ושלום פוגם הרוח ושבה כבשרו, ובדור המבול הרעו לעשות, ופגמו הרוח ושב כבשר, ולזה אמר הכתוב (בראשית ו’) “לֹא-יָדוֹן רוּחִי [בָאָדָם לְעֹלָם, בְּשַׁגַּם, הוּא בָשָׂר; וְהָיוּ יָמָיו, מֵאָה וְעֶשְׂרִים שָׁנָה].” לא יהיה עוד הרוח בתוך הגוף בשגם הוא בשר נהפך לגשמי.
והאנשים המהפכים הבשר והיו לרוח נקראים בעלי הנפש…

A person’s free will turns his physicality into ruchani according to his will. Similarly in the reverse (chas veshalom) he can damage the ru’ach and reduce it to his flesh. In the generation of the flood they made their actions evil, they damaged their ruach and reduced it to flesh. It is about this the scripture says “My ‘Soul’ shall not put up with man for ever, for he also is flesh and blood; therefore his days shall be 120 years.” (Bereishis 6:3) There will no longer be a soul in a body, because [the soul] too is flesh — turned into something physical.

The people who change their flesh so that it becomes spirit are called “baalei nefesh”.  However, because of our many sins, these people who have the ruach within them are few. Rather [only] at a time when they have some merit, they lower it down into their bodies. This is what is written (Iyov 32) “And so it is ru’ach in man, and nishmas Sha-dai will understand them.” The ru’ach at times is in man — in him literally! — and the neshamah isn’t in him. Rather, it sends to him from on high a response to the ru’ach, the “Ru’ach Hashem, ru’ach chochmah ubinah … — the spirit of Hashem, the spirit of wisdom and understanding…”

So, the sinner obsesses with physicality until his nefesh, the “lowest” aspects and functions of his soul, is entirely about flesh and is physical. Whereas the baal nefesh is someone who can take even his body, and elevate it to being a pure vehicle for his nefesh. (Rav Chaim Volozhiner continues to explain how this is related to both reward and punishment in general, and how sin naturally caused the original fall from Gan Eden.)

This idea is also found in the Yerushalmi (AZ 5:4, vilna 33b). R’ Shimon ben Lazar went to a town in Shomron, and it seems he really wanted wine. The problem was that the locals were Kusim, not Jews. (The Kusiim were a tribe who presumably converted to Judaism, but as time progressed doubt arose as to their original sincerity. So, while they were initially treated as Jews, at some point the matter was treated as one of doubt, then probably not, until eventually they were considered non-Jewish.) At this point in history, it was permissible to drink a sealed barrel in a Kusi town. But an open barrel was too likely handled by someone capable of using the wine for religious libations. The town did hire a Jewish schoolteacher. RSBL asked him if there was any kosher wine available. The teacher offered him some water from a spring. Rav Shimon ben [E]lazar asked again, and the teacher replied:

אין את מריה דנפשך הא מבועא קמך שתי ואין נפשך מרתך “שַׂמְתָּ שַׂכִּין בְּלֹעֶךָ, אִם בַּעַל נֶפֶשׁ אָתָּה” כבר נתקלקלו הכותים

If you are the master of your nefesh, then the spring is before you — drink!

But if your nefesh is your master, “they placed a knife at your throat if you are a person of nefesh” [a glutton] — the Kusiim already ruined it.

The pasuq’s ba’al nefesh is a glutton, and therefore not quite the same usage as a modern description of someone who chooses stringency. Or is it? Perhaps the point is that someone who knows they have an internal tendency toward gluttony, hedonism, or the like is the one who needs to work on it — and therefor a “ba’al nefesh” should adopt extra practices to harness this tendency in a positive direction.

However, it is more consistent with what we saw from Rav Chaim Volozhiner to assume that the more recent Hebrew usage of “ba’al nefesh” actually derives from the Yerushalmi’s Aramaic, rather than the Biblical coinage. That the ba’al nefesh of today is the marei denafshei — master of one’s nefesh, the more animalistic functions of the soul — who turns his flesh and nefesh into something more spiritual (ruach, ruchnius).
Although this wouldn’t change the scope of ba’al nefesh yachmir. Rather than prescriptively advising the glutton to adopt the practice to sublimate his instincts, the phrase would be descriptive — the stringency would naturally fit the temperament of a spiritual idealist. (And of someone who wants to be one.)
This definition fits the older examples I found.
Shulchan Arukh (OC 240:8) discusses tzenius even during marital relations, and concludes “these are further separations, and a ba’al nefesh must be stringent in these”.
And in Yoreh Dei’ah (116:7), the Rama writes that an animal that was ruled kosher by the force of reason rather than established tradition is permissible, a baal nefesh shouldn’t eat it.
But the Mishnah Berurah (27 s”q 44) advises every ba’al nefesh to teach his shul-mates how to wear tefillin correctly. And similarly (32 s”q 189) that a ba’al nefesh would make the titura, the part of the tefillin base that the strap runs through, at least 2 fingers wide. Similarly, as we mentioned before, the MB (301 s”q 141) that a ba’al nefesh would not use a neighborhood-wide eiruv.
It would seem usage broadened by his day. Still, it’s possible that the MB does exclusively use the idiom for someone more focused on working on becoming in touch with his own soul than our other ideals –anavah (modesty), ahavas Hashem (Love of G-d), etc…. (Appointing oneself in charge of others’ tefillin poses a challenge with regard to anavah, actually.) So it is interesting to contrast the stringencies appropriate for the baal nefesh to that motivated by other ideals. I am not capable of a broad survey of this sort, so if you notice any that fit or violate this pattern, please leave a note in the comments.
To get the list going, let me open with what I feel is a glaring example:
The Chasam Sofer (YD 39) discusses the shocheit peeling off adhesions from the lungs and testing them for holes in warm water. If the adhesion can be removed without tearing the lung, the adhesion is external enough for Ashkenazim to still consider the animal kosher, albeit not glatt. He concludes that if done by a proper shocheit, “yokhlu anavim veyisbe’u — the modest will eat and be satiated” (Tehillim 22:27). However, “shomer nafsho yirchaq – one who guards his soul should stay away.” There are conflicting priorities here. The person working on his estimate of his own self-worth in relation to others’ should trust the shocheit to have checked correctly. But the person working on subduing his physical side should avoid all questions involving food and is advised by the CS to make a policy of only eating glatt.

Texualism and the Mishnah Berurah

In 1998 I suggested that the MB, having been written by the Chafeitz Chaim, reflects an attitude where the line between halakhah and personal improvement is intentionally blurry. To a ba’al mussar (although the CC was not an adherent of the movement), halakhah can be viewed as the bare minimum of a mussar regimen. Mitzvos exist to hone oneself, but someone who is serious about this task would try to harness them consciously toward that end, would commit to other practices toward that goal, etc… So, we can view “ba’al nefesh yachmir” as mussar advice, but that doesn’t stand entirely separate from pesaq.

Although… it’s not 100% clear that the Mishnah Berurah was even written with the intent that it be used as a practical halachic guide. The Chafeitz Chaim writes in his introduction (traditionally found in the beginning of volume IV, tr. Rabi Seth Mandel, posted here):

First is that the SA by itself without learning the Tur is not comprehensible, because when he wrote the SA it was the BY’s intention that people should first learn the sources of the halokho in the Tur and the BY, so that he would understand the reasoning and logic of each shitta and the practical differences between each… Many times it happens that the SA combines in one s’if something that is only l’khat’hilla with another that is b’di’eved and l’iqquva, something that is d’orayso with something d’rabbonon, and there will be a difference if there is a safeq etc… But learning every din in the SA with its sources and reasons from the Tur and the SA is too great a task for most people nowadays… since in this way one medium siman may take several days and sometimes a few weeks…

The second reason… is that it is difficult to know the halokho l’ma’aseh because of the multiple disagreements brought by the acharonim… and even if he would want always to be mahmir in the matter, that is also not a safe way, because sometimes it will be a chumra that leads to a kula. I also see that from the time the B’er Heitev summarized the Taz and the Mogen Avrohom and others and responsa about 150 years have passed, and in the meantime there have been very many famous g’onim who have dealt with the matters, such as the Elya Rabba, the Matteh Y’hudah, and many others, and the Sha’arei T’shuva only brings a little bit of this in some places. In particular, the Pri M’godim, which is a great work and deals in each siman with new questions l’ma’aseh, and whose conclusions have been accepted is almost not quoted almost at all in the Sha’arei T’shuva… and similarly many many other famous g’onim whose views have been accepted after the Sha’arei T’shuva was printed, such as R. ‘Aqiva Eiger, Derekh haHayyim… So that now if a person wants to understand some halokho l’ma’aseh that is not fully discussed in the SA, he will have so search in many acharonim… Therefore I have strengthened myself with the grace of G-d to fix these matters. I have written an explanation to the SA that is sufficient in my opinion… and explained each din in the SA with its reasons and logic from the g’moro and posqim… and in each matter where there are disagreements among the posqim I have presented the conclusions of the acharonim (gathered from the BaH, the D’risha, the Elya Rabba, the G’Ro the P’ri M’godim…)

It appears that the purpose of the book was not to provide his own ruling, but to survey the later posqim who have added complexity to the field so that someone looking to reach a decision knows who wrote on the matter.

Yes, the CC often gives his own opinion, including our “ba’al nefesh yachmir“, but it is unclear to me he intended that opinion to be a pragmatic ruling rather than a theoretical statement. This would explain why the Mishnah Berurah’s rulings diverge from accepted practice so much more often than the Arukh haShulchan (a contemporary work from the same region). Halakhah lemaaseh, pragmatic rulings, need to take such precedent and continuity into account; discussions of textual theory do not.

Dr Haym Solovetichik, in his famous paper “Rupture and Reconstruction“, describes the difference between the two as follows:

This dual tradition of the intellectual and the mimetic, law as taught and law as practiced, which stretched back for centuries, begins to break down in the twilight years of the author of the Arukh ha-Shulhan, in the closing decades of the nineteenth century. The change is strikingly attested to in the famous code of the next generation, the Mishnah Berurah.6 This influential work reflects no such reflexive justification of established religious practice, which is not to say that it condemns received practice. Its author, the Hafetz Hayyim, was hardly a revolutionary. His instincts were conservative and strongly inclined him toward some post facto justification. The difference between his posture and that of his predecessor, the author of the Arukh ha-Shulhan, is that he surveys the entire literature and then shows that the practice is plausibly justifiable in terms of that literature. His interpretations, while not necessarily persuasive, always stay within the bounds of the reasonable. And the legal coordinates upon which the Mishnah Berurah plots the issue are the written literature and the written literature alone.7 With sufficient erudition and inclination, received practice can almost invariably be charted on these axes, but it is no longer inherently valid. It can stand on its own no more.

6 Israel Meir ha-Kohen, Mishnah Berurah. This six volume work, which has been photo-offset innumerable times, was initially published over the span of eleven years, 1896-1907, and appears contemporaneous with the Arukh ha-Shulhan. Bibliographically, this is correct; culturally, nothing could be farther from the truth. Though born only nine years apart, their temperaments and life experiences were such that they belong to different ages. The Arukh ha-Shulhan stands firmly in a traditional society, un-assaulted and undisturbed by secular movements, in which rabbinic Judaism still “moved easy in harness,” R. Israel Meir Ha-Kohen, better known as the Hafetz Hayyim, stood, throughout his long life (1838- 1933), in the forefront of the battle against Enlightenment and the growing forces of Socialism and Zionism in Eastern Europe. His response to the growing impact of modernity was not only general and attitudinal, as noted here and below, n. 20 sec. c, but also specific and substantive. When asked to rule on the permissibility of Torah instruction for women, he replied that, in the past, the traditional home had provided women with the requisite religious background; now, however, the home had lost its capacity for effective transmission, and text instruction was not only permissible, but necessary. What is remarkable is not that he perceived the erosion of the mimetic society, most observers by that time (1917-1918) did, but rather that he sensed at this early a date, the necessity of a textual substitute. (Likkutei Halakhot, Sotah 2 la [Pieterkow, 1918].) The remarks of the Hafetz Hayyim should be contrasted with the traditional stand both taken and described by the Arukh ha-Shulhan, Yoreh De’ah 246:19. One might take this as further evidence of the difference between these two halakhists set forth in the text and documented in n. 7. One should note, however, that this passage was written at a much later date than the Mishnah Berurah, at the close of World War I, when traditional Jewish society was clearly undergoing massive shock. (For simplicity’s sake, I described the Mishnah Berurah in the text as a “code,” as, in effect, it is. Strictly speaking, it is, of course, is a commentary to a code.)

7 Contrast the differing treatments of the Arukh ha-Shulhan and the Mishnah Berurah at Orah Hayyim 345:7, 539:15 (in the Arukh ha-Shulhan) 539:5 (in the Mishnah Berurah), 668:1, 560:1, 321:9 (Arukh ha-Shulhan) 321:12 (Mishnah Berurah). See also the revelatory remarks of the Arukh ha-Shulhan at 552:11. For an example of differing arguments, even when in basic agreement as to the final position, compare 202:15 (Arukh ha-Shulhan) with 272:6 (Mishnah Berurah). This generalization, like all others, will serve only to distort if pushed too far. The Mishnah Berurah, on occasion, attempts to justify common practice rather unpersuasively, as in the instance of eating fish on Sabbath, (319:4), cited above n. 3, and, de facto, ratifies the contemporary eruv (345:7). Nor did the Arukh ha-Shulhan defend every common practice; see, for example, Orah Hayyim 551:23. (S. Z. Leiman has pointed out to me the distinction between the Arukh ha-Shulhan and the Mishnah Berurah is well mirrored in their respective positions as to the need for requisite shiurim in the standard tallit katan, noted by Rabbi E. Y. Waldenburg in the recently published twentieth volume of his Tzitz Eliezer [Jerusalem, 1994], no. 8, a responsum that itself epitomizes the tension between the mimetic culture and the emerging textual one.)

I am suggesting, though that this shift deemphasizing mimetic tradition (the flow of practice transmitted culturally) in favor of a near-exclusive focus on texts was not actually part of the Chafetz Chaim’s worldview as much as those post-war rashei yeshiva (such as R’ Aharon Kotler) who promoted the idea of using the Mishnah Berurah as a poseiq acharon. The Chafetz Chaim wrote textually because he was intentionally giving a survey of textual theory.

As further evidence that the Mishnah Berurah was not intended to be a practical law guide, we have a lot of testimony that shows that its own author often followed the common Lithuanian practice over his own “ruling”. Despite the origin of wearing one’s tzitzis strings out being in the MB, the CC did not. His qiddush cup doesn’t hold as much wine as the MB would require. (It is still in the hands of the Zaks family and has been checked repeatedly.) He used city eiruvin for carrying on Shabbos. The Chafeitz Chaim did not say “Berikh Shemeih” when taking out the Torah. Etc…

Eilu va’Eilu part II

[Updated 1/9/2014. The story so far: In part I I gave a survey of opinions from rishonim discussed in essays by RM Halbertal and Rav Michael Rosensweig.]
RMHalbertal spelled out three approaches to machloqes: (1) retreival — all machloqes are about recovering forgotten laws, attributed to many ge’onim; (2) accumulative — Torah is built analytically, which means different people can reach different legitimate conclusions (eg the Rambam); (3) constitutive — the halakhah is constructed by the poseiq.
As I noted in the last section, I am not sure the latter two categories are necessarily different. But in any case, the Yerushalmi (Sanhedrin 4:1, vilna 21a-b) seems to assume at least one of them:

Rabbi Yanai says, had the Torah been given clear-cut [predecided] there would be no place for the leg to stand. What is the source, “Vayedaber Hashem el Moshe leimor — and Hashem spoke to Moshe to say”.

Usually this is taken to mean “… saying”. But it can also, and perhaps more grammatically, taken to mean that Hashem told Moshe and the sages to say something. The verse implies rabbinic development of the initial revelation. Continuing:

[Moshe] said before Him: Master of the world! Please let me know how the halakhah should be.
[Hashem] said to him: “Follow after the majority. It the majority find merit, then merit, if the majority obligate [either a duty or a punishment], obligate him. So that the Torah is expounded 49 ways tamei and 49 ways tahor. From where do you know [the number]? It is the number [of the gematria], “vediglo” [and His flag].
Similarly [Tehillim 12:7] says, “The words of Hashem are tahor words, as silver tried in a crucible on the earth, refined seven times.” And [Shir haShirim 1:4], “they love Him meisharim — sincerely.”

As the Penei Moshe explains, the verse in Tehillim is taken as proof of the 49 ways by being read as “seven times seven”. And Shir haShirim is cited to find balance, meisharim, through the conflicting opinions. The Yershalmi is advocating a dialectic approach, in which the Torah’s truth is in the process as much or more than the conclusion.

But in any case, the entire discussion starts from and elaborates on Rabbi Yanai’s idea that the Torah does not give one true ruling for us to recover.

My personal inclination is close to the philosophy of the Maharal’s. If I can use a variant on Plato’s metaphor, we are like people looking at shadows of an object. Since reality can not capture all “three dimensions” of “divrei E-lokim Chaim“, we see what looks like conflicting “two dimensional” shadows. Shapes that accurately represent the whole, but only from the direction from which we are shining the light. The process of pesaq is that of deciding how we should grow and develop given where we stand; what are angle ought to be in relation to that 3 dimentional object and therefore what shadow it casts.One can’t adopt two conflicting positions, neither leniencies (as would the Conservative movement do) nor stringencies (as per the insufficiently fictional “Chumrah of the Month Club”). That would be combining two different angles, to produce a “shadow” the object could never really cast. One is no longer representing the “object”, the Word of G-d.True pluralism (within a range of valid positions) seems to be a compelling conclusion from the Gemara (Hagigah 3b) is concerned about the person who will note when “those [Rabbis] prohibit, yet those [authorities] permit [the very same thing]… how can I possibly learn Torah today?” The answer is found in the words of Koheles 12, “Nasnu meiRo’eh echad – both views were given by the same shepherd.”

Rav Tzadoq haKohein (Resisei Laylah sec. 17), defines a different kind of logic when it comes to thought than when it comes to action, and uses this to understand the nature of pluralism.

Whenever a new thing found about the Torah by any wise person, simultaneously arises its opposite…. When it comes to the realm of action (po’al) it can not be that two things true simultaneously. In the realm of the mind (machshavah), on the other hand, it is impossible for a man to think about one thing without considering the opposite.

This model differs from the Maharal’s. The Maharal assumes that truths can’t contradict. Rav Tzadoq denies the applicability of the rule of contradiction. The two ideas can coexist: Man’s thoughts are designed to be able to handle conflicting truths because it is the best way to approximate a full understanding of the Divine Truth. Like the famous parable of the blind men and the elephant: the elephant is not a fan, a wall, a rope or a tree trunk, and the complete picture is closer to the contradiction as a whole than any one position.

This is actually the literal meaning of the word “teiqu“. When the gemara’s debate can not reach a conclusion, it says teiku. Most students are taught the medrashic meaning, that it’s an acronym for “tishbi yetzareitz qushyos ve’ibayos — Eliyahu the Tishbi will answer all questions”. But the word itself means “let it stand”. Not that there is a question left unanswered, but that both positions stand — despite the contradiction.

For the mathematically inclined, then there’s Goedel’s Theorem. Everyone else may choose to stop at this point.In short and without lots of formula and Greek letters, Kurt Goedel presented a set of theorems that boil down to showing that any sufficiently robust finite formal system that is consistent (i.e. does not claim both something and its opposite — A and not A) must be incomplete. This includes all systems that have formal rules from getting from a finite set of givens to an infinite set of conclusions, and are robust enough to be used to describe mathematics. All such systems must either be able to produce contradictory conclusions, or be unable to produce conclusions that are known to be true.According to the Malbim (intro. to Vayiqra), all of the Oral Torah could be reconstructed from the Written Torah and 613 rules of logic and derashah. Even if we add the halakhos leMosheh miSinai, to fit the understanding of most that these have no source in the written Torah (the Malbim’s statement would imply they do), this is a finite number of postulates and a finite set of rules for elaborating on them. What about Goedel’s Theorem.Given eilu va’eilu The question could be resolved on a number of levels:

As Rav Tzadoq haKohein writes, Divrei E-lokim Chaim are not consistant. Either inherently so, or — as the Maharal takes it — our comprehension is limited to inconsistent approximations. Divrei E-lokim Chaim can therefore be complete.

Halakhah as ruled would have to be constitutive, Rabbanim given the power to define which position is correct. If we took a “retrieval” (Rabbanim try to reconstruct the forgotten) or “accumulative” (deductions from the known) model without a constitutive component, then when we rule out contradictions we would necessarily create areas in which no ruling could be produced.

Halakhah and Orthodoxy

(Much of this is a popularization of things already posted in this category, originally posted to Facebook.)

As I see it, halachic decision-making involves the weighing of numerous items — the strength of the legal logic, the authority of one’s sources, the breadth of acceptance (in both time and population) of the particular ruling, and which ruling better enables the asker to fulfill their obligations to “be holy for I am Holy” and “you shall do the upright and the good”.

And then different communities give each domain different weights. Rav Ovadia Yosef zt”l focused on the authority of the Shulchan Arukh and on numbers of preceding decisors and then on legal weight. Overturning precedent wasn’t an issue for him, and often that precedent was the Ben Ish Chai’s putting practice in line with Qabbalah — his framework for looking at the pursuit of holiness. German Jews look at the age of the longevity of existing pesaq (“authentic Minhag Ashkenaz”), being loathe to overturn precedent, in a way few other communities do. The Gra and then later the Briskers and others in the Lithuanian Yeshiva world, focused on strength of the halachic logic. Etc…

Halakhah decision-making is an art, not an algorithm. It requires comparing apples and oranges for their importance, and thus can’t be reduced to clear numbers and programmable results. The result is that the rules of pesaq cannot be articulated. To cast it in terms used in Computer Science, in particular the field of Artificial Intelligence, we would say that the halachic process is a heuristic, not an algorithm. While a poet who isn’t writing coherent clauses doesn’t make sense, the person who takes poetic license is not following the rules of grammar as formalized in a textbooks for immigrants learning English as a Second Language. (H/T Dr. Moshe Koppel, who composed that metaphor.) And like a language, to fully learn the way it’s used one must be immersed in its culture. An aspiring halachic decisor needs shimush, apprenticeship, under a skilled poseiq to truly learn the craft. Studying the texts in a formal teaching setting is insufficient.

The process of identifying expertise and bequeathing halachic authority might seem circular. Solomon Schechter’s system was prone to this flaw: He considered “halakhah” to be the practices accepted by Catholic Israel, and Catholic Israel the community of Jews who observe halakhah. The hole in this definition is that nothing prevents a group of Reform Jews to decide that they are part of Catholic Israel, that thus their practices are halachic — and because they’re following halakhah, their claims to being within Catholic Israel are justified. Schechter  failed to articulate anything about “Constitutional Law”, something that anchors current process to defining elements existing halakhah. To provide rules for knowing which changes in Catholic Israel’s norms are valid, and which not.

I would say it’s more a cycle than a circle. Those with the expertise to understand what halakhah IS are those who decide what halakhah WILL BE. The skill has to reside among the poets who mastered the feel of the system from existing law; they are the ones we empower to make future law. And as R Moshe Feinstein told the NY Times, halachic authority comes from public acclimation. R’ Moshe told the interviewer something like “Someone asked me a question, he and those he interacted with liked my answer, so more people started sending me questions…”

Going back a moment to the factors being weighed themselves,two of them take halakhah beyond black-letter law. The first is that precedent has legal import. To give more strength to this idea: the Oral Torah is a dialog down the ages. If we allow too frequent overriding of the precedent, we rob the past of its voice in that dialog. Mesorah loses its continuity, and contemporary practice is cut off from the Sinai moment. We give the past authority because they were closer to Sinai — both in culture and simply as links in the chain we ourselves depend on.

The second is that being that holiness and being upright and good are themselves calls to go beyond black letter law, and to not be — as the Ramban put it — “disgusting with the ‘permission’ of the Torah”.) There are halakhos (Hilkhos Dei’os and parts of Hilkhos Teshuvah in the Rambam) that obligate us to pursue the Spirit of the Law to the best extent we can understand it in addition to its specific letter.

This does mean that decisions can at times be ends driven. For example we seek ways to free agunos from being locked into dead marriages. But those ends must be Torah values, and not convenience. And only as one weighting factor among many — the importance of the goal does not mean that we can find “solutions” that violate halachic process. Not every time that there is Rabbinic Will can we necessarily find a Halachic Way, and often when a mechanism does exist, that Way can only be found after generations of searching.

Thus all of Orthodoxy’s defining practices are halakhah. In fact, I would say that’s a tautology; a definition of Orthodoxy. However, some are specific laws, and some are the laws about trying to remake oneself into a holy person who pursues the Torah’s ideals. And unlike Catholic Israel, Orthodox subgroups can accept practices that violate the feel of the process and thus to a greater or lesser extent they could cease being Orthodox.


Halakhah is the means G-d gave us to actively and creatively complete ourselves, to use our Image-of-G-d ability to be who choose to make ourselves and become ever close to that “Image”. The word we generally use is “mitzvah” — that which someone commanded. Notably it is not the more direct conjugation, “tzava” — commandment. It is written as though the fact that the deed was commanded is only a distinguishing feature, not its essence. The seventh Lubavitcher Rebbe zt”l goes further and suggests that the word “mitzvah” is cognate to an Aramaic word “tzivsah” — to receive nourishment. A mitzvah is not only commanded, but also our sustenance. “For those are our lives, and the length of our days.” We have trust in Hashem that the actions He commanded are in our own best interests. For this reason the Zohar translates “Taryag mitzvos” as “Taryag Ittin” — 613 pieces of advice or solutions. (“Ittin” is cognate to the Hebrew “eitzos“.)

The distinction between mitzvah and tzivui could be understood with a metaphor. Someone goes to a doctor and is advised not to eat red meat. A few days later, the same man is a guest at someone’s home and is offered some steak. He declines, explaining to his host that he is under “Doctor’s orders”. The purpose of refraining from red meat isn’t in order to obey the doctor. Rather, he has trust in his doctor’s greater understanding of medicine, and feels secure that the abstention is in his own best interest. The doctor’s order is therefore akin to a mitzvah, not a tzivui.

The name of the parashah lacks the richness of the word mitzvah. It doesn’t refer to both Doctor’s and General’s orders by including the letter mem to hint at nursing. “Tzav” means to command. King David wrote, “Ani avdekha ben amasekha — I am Your servant, the son of your handmaiden.” The meaning is actually richer than that translation. An eved is someone who is submerged under and lost to his work. Rav Hirsch understands the word as an intensive form of avad, to be lost or destroyed, made by replacing the unvoiced opening alef with a voiced ayin. And an amah is not only a female servant, but also a forearm. So we can also translate the verse, “I am second to Your work, the son of someone who made herself a tool for Your Will.” Or as the Zohar says (and we repeat upon taking out the Torah in shul), “Ana avda deQBH — I am the servant of the Holy One, blessed is He.”

The obedience aspect of avodas Hashem is a tough sell in today’s society. Perhaps the most central value in Western Culture today is autonomy, giving people the ability and opportunity to be able to do what they want — as long as it doesn’t interfere with others. Submission?

And so we find among our non-Orthodox brothers a growing population who self-identify as “Post-Denominational” and who seek a DIY — Do It Yourself — Judaism. The chaburah movement, and so on. But this tendency has reached Orthodoxy as well.

For example, R’ Natan Slifkin wrote an article about how the shiur of a kazayis has evolved over time. We know from archaeological evidence that the olives of Chazal’s day were somewhat smaller than the kezayis advocated by the Rambam, and is used today by many Sepharadim. Must smaller than the range of value generally discussed by Ashkenazim, even R Chaim Naeh’s position based on the custom of Yerushalayim in his day (early 20th cent). An Ashkenazi position in line with this  finding is Rav Chaim Volozhiner’s opinion, that a kezayis is the size of a typical olive of our olives as they are bred and grow in our day and age. But this opinion isn’t considered very often. At least not in print. Memories of our ancestors’ seder tables indicates otherwise.

Facebook and the j-blogosphere has been full lately of people who take this historical analysis and proclaim that they will use it to justify using smaller measures for matzah and maror. Taking halakhah into their own hands, even though the argument they are relying on is primarily historical, not halachic. What happened to following halachic authorities? Finding a poseiq and relying on someone else’s expertise? Isn’t that how pesaq supposed to work? Similarly, someone commented on Rabbi Reuven Spolter’s blog, Chopping Wood:

Many in the thinking MO community agree with the rationale, underlying assumptions, and thinking set forth by Rav Bigman, and certainly do not agree with Chareidi views of society and the place for women. Why should they adopt the Chareidi psak? If you think that Rav Bigman’s view should not be followed, then in order to make a case that will fall on accepting ears you have to address the issues. For the thinking MO, it is the quality of the argument, not who said it (within reason) or how many said it, that matters. So if you oppose the action, you have to make an argument based on sources and logic, not a list of poskim.

Actually, there are many halachic rules based on who said it. Following Beis Hillel over Beis Shammai. Obeying the majority rule in a Sanhedrin. The Shulchan Arukh, in general, follows the majority of the Rif, the Rambam and the Tur — not the ruling he finds most reasonable. The Rambam, in the introduction to his Mishneh Torah, sources the gemara‘s authority in the fact that its rulings spread across the observant community — not because of the power of its arguments. And similarly of later rabbis, and the local communities they led.

(As a historical point, the actual universal acceptance of the Tamud Bavli as the final word on what Chazal say (when the Bavli actually has an opinion) post-dated the Rambam. Ashkenaz still had a large population from Eretz Yisrael who were loyal to minhagim from that area. In fact, even to this day Ashkenazim do some things that fit the Yerushalmi or the medrashei halakhah better than they conform to the Bavli. But the Bavli didn’t become THE Gemara in Ashkenaz until the Tosafists. Which is why they were the first to show a struggle between the gemara’s content and (locally) accepted halakhah.)

Because the Rambam is thought of as our tradition’s arch-rationalist (a title Rav Saadia Geon or the Ralbag should also be in the running for), I’m going to quote the words of the introduction to reinforce the point that even our rationalists understood that halakhah requires working within its own process, and not an a priori rationality given historical facts. This is from Mechon Mamre’s translation (see there for the Hebrew too; I just figured most people following this discussion wouldn’t bother reading it if I put up the Hebrew):

32 The enacted legislations or enacted customs of the courts that were established in any town after the time of the Talmud for the town’s residents or for several towns’ residents did not gain the acceptance of all Israel….
34 These matters apply to rulings, enactments, and customs that arose after the Talmud was written. But whatever is in the Babylonian Talmud is binding on all of the people of Israel; and every city and town is forced to observe all the customs observed by the Talmud’s sages and to enact their restrictive legislations and to observe their positive legislations.
35 For all those matters in the Talmud received the assent of all of Israel, and those sages who enacted the positive and negative legislations, enacted binding customs, ruled the rulings, and found that a certain understanding of the Law was correct constituted all of Israel’s sages, or most of them, and it was they who received the traditions of the Oral Law concerning the fundamentals of the whole Law in unbroken succession back to Moshe Our Teacher.

Rav JB Soloveitchik applies the Rambam’s reasoning to an instance that post-dates the Rambam’s life — the acceptance of the Shulchan Arukh. The Shulchan Arukh, with the Rama, was so broadly accepted by the Jewish People it became the yardstick from which we measure the novelty of all our rulings, and therefore the need to justify a divergent conclusion. And why the Shulchan Arukh is the central book in the curriculum we use for ordination programs.

Rabbi Spolter’s response to that qol ishah comment begins (minus the author’s name):

…’s comments concretized exactly why Modern Orthodox practice regarding kol isha bothers me so much. Since when has the Shulchan Aruch been appropriated by the Chareidi community? Suddenly, every rav and posek who doesn’t conform to our values is now Chareidi?

One can be leinient in qol ishah because of halachic arguments: perhaps it only applies to live performances, to cases where the woman can be seen, to solos, or that it excludes liturgical or religious music. But to simply refuse to conform because compromising one’s autonomy, doing what makes sense to my own mind, because I share my halachic decision-making with my LOR (Local Orthodox Rabbi, in Jewish Internet-speak)?

So we have two examples of recent phenomenon that point to a trend away from seeing mitzvos in terms of submission to Hashem’s Will (in addition to whatever it is He is trying to provide for us in them), a Western over-emphasis on autonomy. I tried to cite one case, that of the kezayis, where the results could well be correct, but the attitude and process to get there is not. In the case of qol ishah, the same tendency produces a clearly non-halachic result — the assumption that the prohibition is some chareidi chumerah.

There are actually two aspects to the issue I am raising:

First, the need to use halachic methodology to produce halakhah. Halakhah is a legal process, not a fact-finding one. Sometimes the law drifts from history but is binding because it conforms to the legal principles that make interpretations binding. The altar designed by Solomon was unusable in the 2nd Temple, as the new cadre decided to take a more stringent position on how to pour libations than that proven by altars of the past. Similarly, who said we today are supposed to ignore centuries of evolution of the halakhah about how much matzah to eat, and what a “kezayis” measure is in general? Our debate over this issue — the role of historical research on how we decide halakhah — is what distinguished the bulk of Orthodoxy from the Historical School, and why that originally Orthodox movement evolved into Conservative Judaism. The Torah is to be understood from the inside, by subjective study, internalization, and developing a feel for its flow. Not an objective academic study like other topics, that it always can be dovetailed with our conclusions in those disciplines.

There is a question whether one can use archeology — or any external field — to overturn accepted halakhah. When the Radziner Rebbe concluded that the chilazon, the source of the blue tekheiles dye, was the cuttlefish, R’ Chaim Brisker wouldn’t even weigh the quality of his arguments. Rav Chaim would not accept external evidence to reestablish the identity of the chilazon in the face of halachic silence. I found that a chiddush, but I find the overturning of halakhah when it was not silent to be a greater one.

The Torah Temimah (Maqor Barukh 583) repeats a tradition he received from a Rav Eliyahu Goldberg about Rav Chaim Volozhiner. A knife takes on the meatiness (or milkiness) of the food it cut in two cases: if the food is physically hot, or if the food a davar charif, something with a sharp or hot taste. The Shulchan Arukh’s examples are garlic, onion or leek (YD 96:1). Later on (96:5), the Shulchan Arukh discusses turnips among other things.

But when a woman came to Rav Chaim asking about just such a case — she cut meat and turnips with a dairy knife, Rav Chaim didn’t simply tell her the food wasn’t kosher. He instead asked he the color of the turnip. She said it was a white turnip. Rav Chaim allowed her to eat the food. Why? Because while the Shulchan Arukh said that turnips were a davar charif, Rav Chaim didn’t believe this to be true experientially. Still, R’ Chaim wouldn’t overturn an accepted halakhah in the Shulchan Arukh! So, he drew a distinction between the dark skinned turnips the SA’s author would have encountered in the middle east, with the white skinned ones more common in Lithuania, and thereby felt comfortable ruling. In other words, R’ Chaim Volozhiner was willing to give some authority (at least in the case he was undeniably speaking of) to the Shulchan Arukh even when it was based on a reality that ran counter to his senses.

It’s this kind of sensibility to the notion of halachic authority, to building upon generations past, to submission to the law, that I feel is lacking when someone takes it upon himself to reverse the trend of the kezayis of the past hundred and something years on the basis of someone’s booklet about classical-period olives.

Whether it makes sense to us or not, it’s a fact a minimum of R’ Chaim Naeh’s position became the accepted ruling in many communities. Again, overwhelmingly so on the theoretical plane, if a weaker but still reason consensus in practice. Overturning it to produce a result one has a predisposition for requires caution and a feel for how to weigh various considerations.

Second, the consequent need to have a poseiq. Someone whose rabbi gave them a certificate that says “yoreh yoreh — you have permission and thus the duty to do hora’ah“, you know how to interpret law that has no one settled ruling, and how to extrapolate from existing law to new cases. Someone who apprenticed under a rebbe and has a feel for how to “do halakhah“. The alternative is that one is judging the “quality of the arguments” while under the subconscious influence of having a desired outcome, and without the expertise in and practice with the halachic yardstick for measuring quality of argument.

I would think that ideally a person should face a halachic question as follows:

1- If you have time, open up an Arukh haShulchan, MB or the like, or compare a few guides (Chayei//Chokhmas Adam, Qitzur SA, more recent guides) and see if this case has settled law (zil q’ri bei rav), or if the question is still open (hora’ah).
If it’s settled law, then you know what to do. If not…
2- Did your mentor tell you he is comfortable with your ability to pasqen (ie do you have semichah)? Is this case one that you can decide for yourself with some modicum of objectivity? Can you reach a conclusion you yourself are comfortable with?
If all of the above are “yes”, then go ahead with your conclusion. If not…
3- Consult your rabbi! Not the rabbi most likely to be lenient, not some rabbi who knows you, not even some random gadol. The mishnah says “asei lekha rav — make for yourself a rebbe“. Being able to speak with someone who knows you, your proclitivies, and your situation is a big part of pesaq. The only time you should be sacrificing that kind of ability to fit the situation and your own path up the mountain is when there is no other way to get sufficient technical expertise — and even that should be minimized. (Your rabbi may similarly consult his rabbi, if the question is beyond him, and so on recursively as needed.)
This way, you should get an answer that fits where you are — and where you are going — without giving dangerous autonomy to people with little practice separating halachic concerns from personal desires and from misunderstandings of what the halachic concerns are.

Thus the Oral Torah is a dialog down the ages, from the encounter with G-d at Sinai as explained by Moshe Rabbeinu through Yehoshua and so on down to ourselves. As I wrote in 2009:

Mesorah is a living tradition of a development of ideas. The Oral Torah is oral, a dialog across the generations. If we see a quote in the gemara from Rav Yochanan, we might be curious about the historical intent of Rav Yochanan. But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi’s meaning to be, which in turn can only be understood through the eyes of the Shaagas Aryeh and R’ Chaim Brisker.  That is the true meaning, in terms of Torah, of Rav Yoachanan’s statement.

By sharing the job one’s halakhah decision-making with a mentor-poseiq one is connecting to something eternal. Fealty to halakhah with all its notions of authority and precedence (or should that be: authority including precedence?) saves one from existential angst. Being part of something eternal means my contributions to the fate of the universe will survive my death. Joining the community, finding a different balance between personal expression and fealty to that community and its laws than the “do your own thing”, “self made man”, idealization of autonomy in American and Western society gives me the leverage to be part of something bigger than I am alone.

Am Yisrael Chai for far more than 120 years.

Halakhah: Truth or Law?

R’ Moshe Halbertal’s paper on the nature of machloqes found three classical positions. (I blogged on this back in 2005; and you can see RMH’s original 1994 paper “The History of Halakhah, Views from Within: Three Medieval Approaches to Tradition and Controversy“.) As I summarized it then:

RM Halbertal proposes that there are three basic positions on plurality in halakhah:

1- Retrieval: All of Torah was given at Sinai, and therefore machloqesin (debates) are due to forgotten information.

He finds this opinion to be typical of many ge’onim

2- Accumulative: Torah is built analytically from what was given. Therefore, machloqesin come from different minds reaching different conclusions. This is the Rambam’s position among others. It comes from sources like Rabbi Aqiva’s “finding mounds and mounds of laws in the crowns atop the letters”….

3- Constitutive: The poseiq (halachic decisor) doesn’t discover what’s correct halakhah. Rather, part of the definition of “correct” is the poseiq‘s say-so; Hashem gave them the power to decide and define law. This is the position of the Ramban, the Ritva and the Ran.

The Accumulative and Constitutive approach are both open to taking “Eilu va’Eilu divrei E-lokim Chaim“, that before pesaq, each side of a machloqes are the words of the “Living” G-d, quite literally. The difference is whether we limit this domain to, or also to deciding halakhah in cases that are already addressed, but it’s unclear yet how. Accumulative theory would mean that the only real machloqesin are when we need to extrapolate from existing halakhah to new cases. Otherwise, the role of a poseiq is to find the truth: What did Hashem tell us was allowed or not? What was the original intent of the beis din that established the law? And to find the truth, he uses the halachic process to get an answer he is permitted to rely upon.

I believe this is why the Rambam has the rule that there was never a true machloqes in an law that is halakhah leMoshe miSinai. Because such a law never had a formation period, there was no time in which one could extrapolate in different ways to different valid options. Any disputes in halakhos leMoshe miSinai are not true machloqesin — there was a correct answer, and someone in error. (And this distinction between “true machloqes” and machloqes being used non-technically to refer to a dispute even when between right and wrong would explain why the Rambam himself often discusses disagreements which seem to violate his rule. He could say that in these cases, one of the amoraim are wrong, as opposed to the pre-legislativtrue machloqes before either ruling accumulated to the law.)

Whereas Constitutive theory would include situations where the existing halakhah itself is open to multiple interpretations because halakhah is a law-defining process, not a fact-finding one. The halachic process guarantees a result that is valid, and by selecting one result out of a range of possibilities, the poseiq makes that one correct.

Also in that 2005 post I looked at R’ Michael Rosensweig’s article “Elu Va-Elu Divre Elokim Hayyim: Halakhic Pluralism And Theories Of Controversy“. R’ Rosensweig cites Rashi (Kesuvos 57a, “QM”L”) who discusses this kind of plurality. To quote:

When a debate revolves around the attribution of a doctrine to a particular individual, there is only room for one truth. However, when two Amoraim enter into a halakhic dispute, each arguing the halakhic merits of his view, each drawing upon comparisons to establish the authenticity of his perspective, there is no absolute truth and falsehood. About such issues one can declare that both represent the view of the living God. On some occasions one perspective will prove more authentic, and under other circumstances the other view will appear to be more compelling. The effectiveness of particular rationales shift as conditions of their application change even if only subtly.

Notice that this also puts Rashi with the other rishonim on the Constitutive side of the question. Rashi does not limit true machloqes to decisions about new laws, but also in the realm of interpretations of existing ones.

In the past I posted my own opinion on the question:

Mesorah is a living tradition of a development of ideas. The Oral Torah is oral, a dialog across the generations. If we see a quote in the gemara from Rav Yochanan, we might be curious about the historical intent of Rav Yochanan. But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi’s meaning to be, which in turn can only be understood through the eyes of the Shaagas Aryeh and R’ Chaim Brisker.  That is the true meaning, in terms of Torah, of Rav Yochanan’s statement.

My instinct is that halakhah is Constitutive, and that in fact it’s really “only” the Rambam among the rishonim who holds otherwise. (What the geonim hold is a different discussion, and I have too little access to the sources to discuss it.) What’s interesting enough to me for me to have reopened the topic, is that this again is consistent the Rambam’s Aristotelianism. (Making this post a successor to the previous two: The Rambam’s Philosophy and Mesorah, and The Rambam, Knowledge and Akrasia.)

Aristotilian logic has two laws that force everything to be true or false in a very black-and-white manner:

  • The Law of Excluded Middle: for any proposition, either that proposition is true, or its negation is.
  • The Law of Contradiction: contradictory statements cannot both be true in the same sense at the same time.

In Aristotilian logic, a ball is either red or it is not. Which sounds logical until you consider concepts that have a more and a less — the ball is red in comparison to a blue one, but it seems a little less red than that third ball over there.

The Rambam actually drifts from this idea a bit in his discussion of Providence (Guide 3:18):

HAVING shown in the preceding chapter that of all living beings mankind alone is directly under the control of Divine Providence, I will now add the following remarks: It is an established fact that species have no existence except in our own minds. Species and other classes are merely ideas formed in our minds, whilst everything in real existence is an individual object, or an aggregate of individual objects. This being granted, it must further be admitted that the result of the existing Divine influence, that reaches mankind through the human intellect, is identical with individual intellects really in existence, with which, e.g., Zeiḍ, Amr, Kaled and Bekr, are endowed. Hence it follows, in accordance with what I have mentioned in the preceding chapter, that the greater the share is which a person has obtained of this Divine influence, on account of both his physical predisposition and his training, the greater must also be the effect of Divine Providence upon him, for the action of Divine Providence is proportional to the endowment of intellect, as has been mentioned above. The relation of Divine Providence is therefore not the same to all men; the greater the human perfection a person has attained, the greater the benefit he derives from Divine Providence.

The Rambam modifies the position he just attributes to Chazal by making humanness a set with blurry edges, something someone can be more or less of. And therefore someone who is fully human is fully subject to Divine Providence, but most of us are somewhere short of the end of the spectrum, and therefore receive Providence only occasionally.

But in general, his reasoning is very consistent with Aristotle’s work on logic and syllogisms. And so the Rambam will not gravitate toward a model in which a rabbi can explore a pre-existent fact and yet there are multiple possible correct answers. It violates the black-and-white nature of Aristotilian Logic, in which there is only one Truth. In the Rambam’s worldview, pesaq constructs new facts. There is no history of interpretation of a law.

To close with an example… When a gemara concludes that a mishnah should be taken in a manner that is far from the naive understanding of its words, Rashi will understand the mishnah accordingly. This is typical for a Constructivist, or as I wrote (quoted above), “But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi…” The Rambam, on the other hand, will rule as closely to the literal mishnah, and fit his understanding of the gemara accordingly. Because in his eyes, the entire discussion is an exploration of what the author or Author of the law meant, and thus one’s understanding of that source is the discussion’s anchor.

For an example of this example, Zava Qama 2:1, the topic of “chatzi nezeq tzeros — paying half the damages for damage caused by kicked pebbles”:

כֵּיצַד הָרֶגֶל מוּעֶדֶת לְשַׁבֵּר בְּדֶרֶךְ הִלּוּכָהּ? הַבְּהֵמָה מוּעֶדֶת לְהַלֵּךְ כְּדַרְכָּהּ וּלְשַׁבֵּר; הָיְתָה מְבַעֶטֶת, אוֹ שֶׁהָיוּ צְרוֹרוֹת מְנַתְּזִין מִתַּחַת רַגְלֶיהָ וְשִׁבְּרָה אֶת הַכֵּלִים מְשַׁלֵּם חֲצִי נֶזֶק….

In what way can ‘the [animal's] foot’ be regularly [destructive] in the way it walks? The animal regularly walks on its way and breaks things. If [a calm animal] was kicking, or if pebbles were kicked from under its feet and broke utensils [its owner] must pay half-damages….

The gemara (ad loc, 17b) says:

אמר רבא: בשלמא סומכוס קסבר כחו כגופו דמי, אלא רבנן. אי כגופו, דמי כוליה נזק בעי לשלם, ואי לא כגופו דמי, חצי נזק נמי לא לשלם. הדר אמר רבא לעולם כגופו דמי, וחצי נזק צרורות הלכתא גמירי לה.

Rava said: It is well according to Sumkhus, who reasons that [the animal's] power [which set the pebble moving] is like its body. But according to the Rabbanan — if [the power] is like its body, he should have to pay the entire cost of the damages, and if it is nore like [the animal's] body, even half the damages he shouldn’t have to pay.
Afterward Rava said: It was always that [the animal's power] is like its body, and the half-damages of pebbles is a received halakhah.

Rashi quotes “הלכתא גמירי לה — it is a received halakhah” in his commentary on the mishnah. Meaning, the whole issue is beyond our ken, but that’s what we got from Sinai.

The Rambam, in contrast, does provide an explanation of the halakhah. In his commentary to the mishnah, the Rambam says that this is an instance of an animal doing damage shelo kedarkah — in an unusual manner. He explains that there are two kinds of unusual manners: (1) a tame animal that rarely damages anything, or (2) the damage is indirect, caused by something that the animal set in motion, not the animal itself.

(Aside from them also disagreeing as to what “הלכתא גמירי לה” means, but that’s not our discussion.)

Rashi’s commentary fits Rava’s explanation, the Rambam’s fits the mishnah‘s opening question: What does it mean to have an animal whose leg regularly breaks things? Rashi follows halakhah as it flows down the ages, a process in which legislation unfolds. The Rambam tries to get at the meaning of the original source.

For the same reason the Rambam, between writing his Peirush haMishnayos and writing the Mishnah Torah, dismissed the notion of relying on later sources to interpret earlier ones — he instead confronts the texts themselves with a clean slate, trying to reach original meaning. He writes (Igeros haRambam, Silat ed. pg 305, 647) about approaching Chazal only through the primary sources without the tradition of interpretation of the ge’onim (tr. R’ Dr Marc Shapiro):

This confusion that people have with regard to the Perush HaMishnah is entirely due to the fact that I corrected it in places. The Creator knows that most of my mistakes were due to my having followed Geonim, z”l, such as Rabbeinu Nissim in his Megilas Setarim and Rav Chefetz, z”l, in the Sefer HaMitzvos, and others whom it is difficult for me to mention. (pg 305)
That which is codified in the chibbur [i.e. the Mishneh Torah -mb] is undoubtedly correct, and so we wrote as well in the Perush HaMishnah, and that which is in your hands [an early version of the Peirush haMishnayos -mb] is the first version which I released without proper diligence. And I was influenced in this by the Sefer HaMitzvos of Rav Chefetz, z”l, and the mistake was in his [analysis], and I just followed after him without verifying. And when I further evaluated and analyzed the statements [of Chazal], it became clear that the truth was what we recorded in the chibbur and we corrected the Perush HaMishnah accordingly. The same happened in so many places that the first version of the Perush HaMishnah was subsequently modified, tens of times. Each case we had originally followed the opinion of some Gaon, z”l, and afterwards the area of error became clear. (pg 647)

This focus on primary sources rather than an acknowledgment of the Torah’s inherent orality and fluidity means that the Rambam isn’t using a halachic process that remotely resembles the ones “everyone” else does.

If we buy into the Rambam’s model of what halakhah is — which, again, betrays an Aristotelian foundation that we have no compelling need to accept — it wasn’t just the innovations of the chassidim that bent the halachic process into an unacceptable pretzel, there are NO observant Jews today. And thus the contrapositive, if we accept the halachic process as practiced by acharonim and arguably most rishonim, then what do we do with what the Rambam describes?

On the other hand, that self-same “halachic process as practiced by acharonim” gives much weight to the Rambam’s opinion as a source.

So, can someone help reconcile me with shitas haRambam?

Today’s Daas Torah

Here’s a theory that I developed recently [when this was posted in its first, much shorter, version on 26-Nov-04]…

The gemara uses the term “da’as Torah” in a sense totally different than today’s usage. It appears once, in Chullin 90b, to ask whether a cited opinion on a halachic matter was from sources, which it calls “da’as Torah“, or whether it is the tanna‘s own conclusion, da’as atzmo. Orthodoxy requires giving rabbis authority on halachic questions. And it’s not overly novel to say that such authority doesn’t come from just formal knowledge, but also having a feel for the material and perspective caused by long exposure to Torah. Otherwise, someone with a good CD should be able to out-pasqen a learned rav who relies on his own memory. But it’s ironic that we call this feel “da’as Torah“, since it is an instance of what the gemara identified in contrast to da’as Torah.

It is also not overly controversial to extend this authority to Torah questions that aren’t halachic, such as questions of philosophy or identifying appropriate areas for going lifnim mishuras hadin (beyond the letter of the law).

Where da’as Torah as meant by the contemporary usage hits shakier ground is when it’s extended in the other direction: pragmatic questions where the unknowns revolve around the facts on the ground rather than the Torah issues. Such as most career or shidduch questions. After all, the gemara advises the rabbinate to leave military questions to the generals. Should we not leave medical ones to the doctors, career questions to career counselors — or at least people who work in the jobs in question?

The extension of da’as Torah from the Talmudic usage is first found in R’ Yisra’el Salanter’s Or Yisra’el. In Mussar, it’s about the role of Torah in personal development. Yes, his formulation justified approaching the rav on non-halachic issues by noting that every decision has impact on which life experiences one has, and in turn on one’s mussar growth. Someone who chooses to consult a rav who knows their personality and in which ways they’re trying to grow, could use the insight.

However, robbed of the connection to Mussar, the original motivation is gone and the term has a totally knew meaning. What’s called “da’as Torah” today often involves approaching a gadol who doesn’t know the asker well enough to give such mashgi’ach-style help. Or even if one’s own rosh yeshivah, it could be done even years after their daily contact. Not at all what Rav Yisra’el was describing.

Rav Yisra’el does ascribe importance to the effect of Torah on shaping the thought of the one who learns it. If I may add, the word da’as is not merely zikaron (memory), but knowledge that both comes from chokhmah and binah, but is also at times replaced by the sefirah of keser which is their cause. Knowledge that comes from thought, and shapes thought.

The current conceptualization of da’as Torah relies entirely on this notion, which Rav Yisra’el cited as buttress for why one should seek about Mussar advice. Without it being about Mussar advice, and fitting in one’s plan to shteig, to ascend the ladder, da’as Torah is a totally new invention.

Yes, da’as Torah should give the rav better ability to analyze questions than the asker, or anyone else whose mind lacks that Torah development. However, does that ability compensate for not having as many of the facts about which to reason — including the da’as (if I may use my own conceit) of the topic at hand? My personal opinion is, rarely. HaRav Aharon Lichtenstein makes this point far more scathingly in a talk to Yeshivat Har Etzion titled “אם דעת אין, מנהיגות מנין?”, available in Hebrew here, and in unauthorized translation by Joseph Faith titled “If There Is No ‘Da’at,’ How Can We Have Leadership?”, here.

So we’re discussing rabbinic authority in three different domains:

  • Pesaq halakhah, where (barring grievous errors discernible to all, mistakes in zil q’ri bei Rav) it is binding.
  • Spiritual guidance, as proposed by Rav Yisrael Salanter. The advice is certainly of value, (not being legal) is not binding.
  • Guidance where the primary question involves unknowns about the logistics of the situation. That if we understood what was involved better, the religious dictates would be obvious.

There is obvious gray area, in fact, I identified a minimum of two:

  1. The line between what is a bad idea in terms of values and what is halachically prohibited is complex. In his famous commentary on “you shall be holy“, the Ramban coins the phrase “menuval bireshus haTorah — disgusting but with the permission of the Torah”, and tells us it is prohibited. But if it’s prohibited, how is it “bireshus haTorah“? His point, following the Toras Kohanim before him, is that not everything that which is permitted by the Torah’s black-letter law is actually permissible in practice. For each person to know when and how to follow the obligation to go lifnim mishuras hadin, beyond the black-letter law, is in a way halachic, and in a way aggadic.
  2. When we do not know all the facts of a situation and have to work only with probabilities, we are doing risk assessment. Risk is a combination of both the odds, and the gains or costs if the situation comes to pass — probability and religious merit merged into one. Knowing which risks are halachicly acceptable, and which long-shot opportunities we are allowed to ignore is itself a religious assessment.

Rabbi Avi Shafran, Agudath Israel of America’s spokesman, described the mechanism of da’as Torah in the terms I described above in an article in the the New York Jewish Week:

Da’at Torah is not some Jewish equivalent to the Catholic doctrine of papal infallibility. Not only can rabbis make mistakes of judgment, there is an entire tractate of the Talmud, Horiut, predicated on the assumption that they can, that even the Sanhedrin is capable of erring, even in halachic matters. What Da’at Torah means, simply put, is that those most imbued with Torah-knowledge and who have internalized a large degree of the perfection of values and refinement of character that the Torah idealizes are thereby rendered particularly, indeed extraordinarily, qualified to offer an authentic Jewish perspective on matters of import to Jews – just as expert doctors are those most qualified (though still fallible, to be sure) to offer medical advice.

I would have thought that this yeshivish conception is to be distinguished from the chassidic belief in the ru’ach haqodesh (holy inspiration) Hashem grants tzadiqim, so that their decisions even in non-Torah matters is of value. One is about the quality of mind, the other about Divine Aid given people who carry their kehillos‘ burdens. There it’s from Hashem, the rebbe‘s own knowledge is irrelevant so this objection wouldn’t apply. One either believes the help is granted freely, or less so. However, here is how Rabbi Bernard Weinberger describes da’as Torah back in the second issue of Jewish Observer (1963). To him, da’as Torah is:

a lot more than Torah weltanschauung or a Torah saturated perspective. It assumes a special endowment or capacity to penetrate objective reality, recognize the facts as they ‘really’ are, and apply pertinent Halachic principles. It is a form of ‘Ruach HaKodesh,’ as it were, which borders if not remotely on the periphery of prophecy.

(According to the Rambam’s Guide to the Perplexed 3:36, one might be justified in identifying the two. Prophecy is a natural faculty of an intellect developed enough to receive it. But then, today’s da’as Torah has come out against learning the Guide… ☺)

But even among Chassidim, the near-prophetic version of trust in rabbeim was originally resisted. Here is the Tanya’s description, from Igeres haQodesh #22 (notice the contrast between the close of this quote to the last words I quoted from Rabbi Weinberger):

Has such a thing ever happened in days past? Where indeed have you found such a custom in any of the books of the early or latter sages of Israel, that it should be the custom and established norm to ask for advice in mundane matters, as to what one ought to do in matters of the physical world?

[Such questions were not asked] even of the greatest of the former sages of Israel, such as the tannaim and amoraim, the authors of the Mishnah and the Gemara, “from whom no secret was hidden,” and “for whom all the paths of heaven were clearly illuminated,” but only of actual prophets who used to live among the Jewish people, such as Samuel the Seer to whom Saul went to inquire of G-d through him about the donkeys that his father had lost.

Why, indeed, were sages of stature such as the tannaim and amoraim not asked about mundane matters? For in fact all matters pertaining to man, except for words of Torah and the fear of heaven, are apprehended only by prophecy.

The other issue that is different than R’ Yisra’el’s original formulation is a shift to an all-or-nothing. Something “the gedolim” have that the rest of us lack. Rather, it ought to be relative. Whomever learned more Torah should be more shaped by it; whomever less, less. This artificial division into have and have-not has returned back to affect the core of Torah questions, halakhah. The local shul rav lost most of his authority, both in his mispallelim‘s eyes and in his own, as he’s from the have-not class. Many local rabbanim are merely conduits, forwarding all but the most trivial questions to their rashei yeshiva.

By making such a class, “the gedolim“, as opposed to speaking of relative greatness, the community is subtly guided toward believing that da’as Torah is monolithic. And with a bit of unconscious circular reasoning, this is made true. The definition of da’as Torah is made to be the conclusion of the gedolim and the definition of who is a gadol is restricted by who agrees with the accepted answer.

This is so well accepted that authors and publishers can not put out histories that disprove such unity of thought. If it’s told that the Netziv read the newspaper on Shabbos, or allowed secular studied in Vilozhin, or that fellows in Salbodka argued issues like Communism, Freud, or the other hot topics of their time, the hoi polloi will question the rav‘s greatness, which raises problems of shemiras halashon. Even when from an unimpeachable source, like the Torah Temimah or R’ Noson Kamenetzky. It’s not a judgment of fiction, but of inappropriate truth.

There is another way in which absolutism is turning today’s da’as Torah into something new. Hyperbolic retoric has pronouncements of da’as Torah introduced as pesaq. For example, a poseiq told an audience of tens of thousands that he pasqened that non-business use of the internet was assur. But then days later spoke about the need for filters in the home. Relative authority between halachic pesaq and aggadic guidance is gone, and the masses increasingly think both are legally binding.

Without the core notion of having a Mussar plan, one can’t transplant the notions that depend upon it. Such drastic transvaluation of terms is inevitable. Having a moreh derekh, a mentor providing religious guidance in the areas beyond black-letter halakhah is one thing. Abdicating difficult decisions, perhaps to a gadol who can’t know you or the side-effects of his advice due to you life situation, and then saying the answer is a pesaq that must be followed, is something new entirely.

The Eilu vaEilu Paradox

The notion of eilu va’eilu is taken by many to be quite literal — that two conflicting halachic opinions can both be equally correct, both equally truly representing the Will of G-d. This is a product of halakhah being a mapping from Hashem’s infinite Thought to human reality and/or His leaving us a process that has room for our creativity because that creativity is itself part of the redemptive process, etc…

Here’s the paradox… Say camp A holds that some limit X is involate, that people who deny X believe in heresy (albeit may not have the laws of a heretic). Camp B denies X, but has no similar red line that camp A crossed.

B is in the position of believing eilu va’eilu includes the truth of A’s approach to Torah — including the belief that B’s own approach isn’t true (isn’t within eilu va’eilu)? Paradox!

This comic presented a nice mashal, if you have some knowledge, even on the popularization level, of some of the odder hypotheses in physics:

Abstruse Goose: Many World Problem

Midgets on the Shoulders of Giants

Someone recently (when I first wrote an earlier version of this post, Feb 2007) asked me about nisqatnu hadoros, the decline over time from one generation to the next. How is this possible, given that we now have universal education, and the masses know more Torah than any other generation in millennia?

Pigmaei gigantum humeris impositi plusquam ipsi gigantes vident.
Pigmies placed on the shoulders of giants see more than the giants themselves.

– Didacus Stella in Lucan 10, tom. ii. (39-65 CE)

So, sometime around the end of the Second Beis haMiqdash period is the earliest documentation of the idea that people of later generations, even if not as great as those of earlier generations, could still get further — because we start with their accomplishments.

This metaphor first enters Jewish Thought with the Tosafos Rid, Rav Yishaya di-Trani (1180-1250). His student, the Shibolei haLeqet, is clear that the Tosafos Rid was using “an aphorism that he heard from the non Jewish scholars. … [W]e are dwarves riding on the neck of giants because we see their wisdom and delve deeper, and we learn from their wisdom to discover everything that we say. Not because we are greater than they were.” Quoted from translation by R’ David Sedley in his blog (see there for a discussion focusing on this particular expression). R’ Sedley identifies the “non Jewish scholars” as Bernard of Chartres, quoted by John of Salisbury.

Meanwhile, the idea, if not the metaphor, has a long standing amongst Chazal well before the Tosafos Rid. The most similar is probably:

Rabbi Zeira said that Rava bar Zimuna said: If the earlier [Sages] were the sons of angels, then we are mortals; but if the earlier ones were mortals, then we are donkeys – and not the donkeys of Rav Chanina Ben Dosa and Rabbi Pinchas ben Yair but like the other donkeys.

- Shabbos 112b

The term I rendered “mortals” is “benei temusa — sons of death”. There is a version which has “benei adam — children of man”, i.e. people. But I think this variant is more telling.

The reference to Rav Chanina ben Dosa’s donkey is explained in the gemara. Thieves stole the donkey and gave it untithed grain to eat. The donkey refused to eat. Eventually, the thieves realized that the donkey was useless to them; if they kept it, it would starve to death. So they released it, and the donkey returned home. Rabbi Pinechas ben Yair sold his donkey to non-Jews, but the donkey somehow knew when it was Shabbos, and refused to work.

We have three levels:

1- Angels, which are purely spiritual. They embody Hashem’s Will, and therefore do not change.

2- People, who are body and soul. Particularly if we are actually being called “mortals”, ones who are destined to separate soul from body.

3- Donkeys. The word is “chamor“, which we noted in the past is standard midrashic idiom for symbolizing man’s physical nature, due to the word’s similarity to “chomer“, substance. Thus our heroes come riding donkeys — in full control of their bodily desires and urges, and channeling them constructively.

A second metaphoric use of “chamor” is that person with knowledge is often compared to a donkey carrying a burden. For example, in how our sages (as quoted by Rashi, Bereishis 49:14) explain Yaaqov comparing Yissachar to a donkey in his blessing, that Yissachar was a tribe that was noted for its Torah knowledge.

A donkey would not be the animal chosen to represent ignorance. There is also no basis that I know of for saying that angels are more informed than people.

Within the class of donkeys, this gemara defines two sets:

  1. the special donkeys of the two tannaim, and
  2. regular donkeys.

Donkeys can’t think as humans do. When they act, they are responding to stimuli, acting as per habit, rote.

Notice, though, what we skip a level. Either we are like mortals to our predecessors’ angels, or we are like regular donkeys to their humanity. It is never suggested that we are like the special donkeys.

I think this is what this gemara is saying. If we view the earlier generations as angels in their perfection, then we must view ourselves as mortals — beings in a process to reach for that perfection, as an unattainable goal to strive for. If we view them as beings-in-process, then we should realize that they act as their souls dictate, and our actions are the rote of donkeys. And it’s not even like we have the best possible habits! If we were speaking of R’ Chanina ben Dosa’s or R’ Pinchas ben Yair’s donkeys, then at least we could invoke “mitokh shelo lishmah ba lishmah — from acting without the proper intent, one is brought to proper intent.” The process could begin with even donkey-like action and that bring us to our spiritual selves, but only if it were instinctively, habitually, following proper action.

So as I see it, the message of this gemara is that either we see how our perfection falls short of theirs (angels vs. mortals) or of how our pursuit of perfection falls short of theirs (mortals vs. regular donkeys). Again, the message appears to be about a decline in commitment, rather than knowledge.

This same question of how we differ from earlier generations was asked in a second gemara. What I want to focus on is exactly in which way we are lesser than those who came before, and how does that not interfere with our utilizing what they left us. I believe my take on R’ Zeira’s words are more explicitly made by here by Abayei:

R. Papa said to [his teacher] Abayei: What is the difference between those earlier [than us], for whom miracles were common, and us, for whom miracles are not common? If it is because of tenuyei

I want to break off here for a second. Tenuyei is from tani, to repeat, the root means “two”. It is also the root for masnisin, Mishna. Clearly the word means information memorized and repeated, the chain of masorah, in distinction to ideas that are derived or reasoned from those facts we inherited.

…in the years of R. Yehuda, all of tenuyei was in Neziqin, and we are masnisin…

which either means “learn mishnayos” or “repeat what we learned”. The difference wasn’t all that significant in those days. Mishnayos existed as an easily memorizable form for halakhah.

…6 orders. And when R. Yehuda delineates in [tractate] Uqtzin, [the case of] “A woman who dries vegetables in a pot”, or, some say [the case of] “Olives that were dried cut off”, [his students] Rav and Shmuel’s entire existances [were tied up in the resolution] of this issue. Yet we are masnisin Uqtzin in 13 schools [of thought, with 13 different explanations - Rashi]….
[Abayei] said to him: The are mosir nefesh [commit their souls] to sanctify The Name, we are not mosir nefesh to sanctify The Name.

- Brachos 20a

The gemara very clearly states that it is possible for one generation to know more than an earlier one. Abayei’s conclusion is that the lessening of the generations is in mersiras nefesh – commitment, not in knowledge.

Here’s R JB Soloveitchik’s way of describing the decline, as written in Pinchas Peli’s notes of his pre-Rosh haShanah lectures (“Soloveitchik On Repentance”, pp 88-89):

Allow me, please, to make a “private confession” concerning a matter that has caused me such loss of sleep. I am not so very old, yet I remember a time when ninety percent of world Jewry were observant and the secularists were a small minority at the fringes of the camp. I still remember – it was not so long ago – when Jews were still close to G-d and lived in an atmosphere perverted with holiness. But, today, what do we see? The profane and the secular are in control wherever we turn.

Even in those neighborhoods made up predominantly of religious Jews one can no longer talk of the “sanctity of the Sabbath day.” True, there are Jews in America who observe the Sabbath. The label “Sabbath observer” has come to be used as a title of honor in our circles, just like “Harav HaGaon” – neither really indicates anything and both testify to the lowly state of our generation. But it is not for the Sabbath that my heart aches, it is for the “eve of the Sabbath.” There are Sabbath-observing Jews in America, but there are not “eve-of-the-Sabbath” Jews who go out to greet the Sabbath with beating hearts and pulsating souls. There are many who observe the precepts with their hands, with their feet and/or with their mouths – but there are few, indeed, who truly know the meaning of service of the heart! What is the percentage of religious Jews today in contrast to the ninety percent only two generations ago? It seems to me that religious Jewry survives today solely by force of the Name of G-d who is there after man sins.

Otherwise we should have utterly despaired and given in to the feeling, with which I am often overcome as I lie awake at night, that we are building castles of sand, and any moment a wave will come and wipe out everything. But G-d who is there after man sins does not allow us to despair. He whispers in our ears the “Jerusalem is surrounded by mountains” – one must do much climbing and work hard, grasp every hand-hold and out-cropping, slide backward and try again to climb the mountain so as to be able to reach Jerusalem. “Who shall climb the mountain unto the Lord?” I do not believe that it is easy to return and repent. The path of repentance, for the individual, as well as the community, is arduous and many boulders are strewn about which can be overcome only with supreme effort. The road is long and tortuous until one arrives at the stage of: “Be cleansed before the Lord,” the cleansing of the Name of G-d who is there before man sins.

Now that we have universal education, we know more more. We are “higher”. However, in terms of religious passion we are “pand add far less to the total height. It is this poverty that is seen as now reaching crisis levels.

I like the metaphor of the rules of grammar that Moshe Koppel uses in his seifer “Metahalakha”. A native speaker of a language may not know its rules, whereas an immigrant who went to enough ulpan or ESL classes would know how to conjugate past pluperfect irregular verbs. The native speaker, though, knows what “sounds right”. And thus, with his less knowledge, is capable of knowing acceptable poetic license to make his point more elloquently and poignantly. The immigrant will make precisely grammatically correct sentences. If he learns two grammarians opinions, and he is sufficiently scared of sounding like an idiot, he will often choose a sentence that conforms to both interpretations. The immigrant, because he lacks that feel for the subject, will play safe.

If this was all there was to it.

One of the basic differences between Orthodox and Conservative thought is the mutability of decisions made by earlier generations. Orthodoxy breaks history down into eras: tana’im, amora’im, rishonim and achronim (roughly: mishnaic, talmudic, medieval, and late authorities). A rabbi of a later era may not or would not dispute one of an earlier era without having another earlier Rabbi in support. The dictum used to support this system is that no court can overrule another court unless it is greater in chokhmah (to be translated later) and in number. Since we can get arbitrarily large courts today, we seem to assume that later generations have less chokhmah than earlier ones.

Chokhmah, therefore, is some mental process, but if we want our quote from the gemara to stand, it is not required for masnisin. So chokhmah doesn’t refer to collecting information.

There is a famous quote, from Mes. Tamid: “Who is a chokham? One who sees what will be born.” Chokhmah here is a mental skill. But are we saying it is a necesary skill to be able to trace cause to effects (think before you do?); or even, chokhmah is acquired by studying causes to get effects. This seemingly straightforward quote didn’t help as much as I’d guess it would.

What is chokhmah? Well, I went to my copy of the Tanya, the book describing a Judaism based on Chokhmah Bina vaDa’asChabad. I figured that R. Shneur Zalman of Liadi must define his terms somewhere. Sure enough, this is what I found in Chapter 3. (Disclaimer: I am not a student of Chabad, my knowledge is very superficial. This is just a quote from an authorized translation by R. Nissan Mindel (1962).)

The intellect of the rational soul, which is the faculty which conceives of any thing, is given the appellation of chokhmahkoach mah – the “potentiality” of “what is”. When one brings forth this power from the potential to the actual, that is when [a person] cogitates with his intellect in order to understand a thing truly and profoundly as it evolves from the concept which he has conceived in his intellect, this is called binah.

Chokhmah, then, is the ability to conceive, to imagine, to create new information, which is then developed by binah. Neither refer to just warehousing information spoon-fed by the outside world — the ability most related to the masnisin of M. Brachos. Chokhmah would be the ability to perform thought-experiments. This helps understand our quote from Tamid. A chokham is the one who is ABLE to envision consequences before acting.

(But what about the oft-quoted mishnah of Ben Zoma (Avos 4:1) “Who is a chokham? One who learns from all men…”? I don’t see how this works with the either gemara that we quoted, or the Tanya’s definition. I considered the same three alternatives as I did for the mishnah in Tamid: 1- A chokham is one who is able to learn from any person. This seems to be a statement about middos (personality traits) not intellect. 2- A chokham would know that you ought to learn from anyone. This could be, but so would a navon (one blessed with binah, deductive abilities). 3- Chokhmah is acquired by learning from any person. This is, again, about masnisin — remembering and being able to repeat what you learned.

(Perhaps, and I admit this is a lame reply, chokham is used in Avos in a broad non-technical sense. A chokham could be one who has chokhmah, or one who has any intellectual prowess.)

We can tie these two types of generational descent together by positing a single cause. Clearly, for mesiras nefesh — committing oneself to G-d, one requires Yir’as Hashem — awe of G-d. Similarly, we say upon waking up every morning: reishis chokhmah yir’as Hashem — the beginning or source of Chokhmah is awe of G-d.

It seems to me from these two phenomena that it is yir’as Shamayim that is the primary trait that is diminishing through the years. The gemara in Brachos about mesiras nefesh, and the increasing crystallization of halachic decision are the outward manifestations.

Yir’as Shamayim, an awareness of the magnitude and import of the One in Heaven and our relationship to Him is the essence of the Sinai experience. Someone who can feel it and live by it is truly a “native speaker” of halakhah. We who do not spend erev Shabbos in anticipation of Shabbos must rely on strict adherence to formalized rules.

Any Torah Which Has No Ancestral Home

Certain mitzvos must be done on a specific day, such as the beris milah of a boy who is healthy on the 8th day, or the Qorban Pesach. In these cases, the mitzvah overrides Shabbos. According to Rabbi Eliezer, this includes even preparatory steps before the mitzvah itself, such as carrying the milah knife in a public domain, things that could have been done before Shabbos, but in this instance they were forgotten. The dominant opinion is that only things that must be done on Shabbos itself override Shabbos, The Qorban Pesach is offered the afternoon before Pesach, even on a Shabbos. The question therefore came up toward the end of the Second Beis haMiqdash period:

שאלו להלל הזקן מה לעשות לעם שלא הביאו סכיניהן עמהם. אמר להן הלכה שמעתי ושכחתי אלא הניחו להן לישראל אם אינן נביאים בני נביאים הן. מיד כל מי שהיה פסחו טלה היה תוחבה בגיזתה. גדי היה קושרו בקרניו. ונמצאו פסחיהן מביאין סכיניהן עמהן. כיון שראה מעשה נזכר הלכה. אמר להן כך שמעתי מפי שמעיה ואבטליון. ר’ זעירה בשם ר”א כל תורה שאין לה בית אב אינה תורה.

They asked Hillel the Elder what to do for the masses who did not bring their knives with them [before Shabbos, so that they could have their qorban slaughtered]. He said to them, “I heard the law, but I forgot it. Leave it to Israel — if they are not prophets, they are the children of prophets.” Immediately, someone whose Pesach offering was a lamb buried [the knife] in its hair. A kid — he would tie [the knife] to its horns. And so it turned out that their Pesach offerings brought their knives with them. Once [Hillel] saw the event, he remembered the law. He said to them, “Like this is what I heard from [my mentors] Shemaya and Avtalyon!”

Rav Ze’ieira in the name of Rabbi Eliezer: Any Torah which has no “ancestral home” isn’t Torah.

- Yerushalmi Shabbos 19:1, vilna 86b-87a

This same story is told in a different, and longer, form in the Bavli:

תנו רבנן הלכה זו נתעלמה מבני בתירא פעם אחת חל ארבעה עשר להיות בשבת שכחו ולא ידעו אם פסח דוחה את השבת אם לאו אמרו כלום יש אדם שיודע אם פסח דוחה את השבת אם לאו אמרו להם אדם אחד יש שעלה מבבל והלל הבבלי שמו ששימש שני גדולי הדור שמעיה ואבטליון ויודע אם פסח דוחה את השבת אם לאו שלחו וקראו לו אמרו לו כלום אתה יודע אם הפסח דוחה את השבת אם לאו אמר להם וכי … מיד הושיבוהו בראש ומינוהו נשיא עליהם והיה דורש כל היום כולו בהלכות הפסח התחיל מקנטרן בדברים אמר להן מי גרם לכם שאעלה מבבל ואהיה נשיא עליכם עצלות שהיתה בכם שלא שמשתם שני גדולי הדור שמעיה ואבטליון אמרו לו ר’ שכח ולא הביא סכין מע”ש מהו אמר להן הלכה זו שמעתי ושכחתי אלא הנח להן לישראל אם אין נביאים הן בני נביאים הן למחר מי שפסחו טלה תוחבו בצמרו מי שפסחו גדי תוחבו בין קרניו ראה מעשה ונזכר הלכה ואמר כך מקובלני מפי שמעיה ואבטליון

Our Rabbis repeated: This law [that the Qorban Pesach is to be brought on Shabbos] was hidden from the sons of Beseirah [who headed the Sanhedrin at the time]. One time, the 14th [of Nissan] fell out on Shabbos. They forgot and did not know whether the pesach trumps Shabbos or not.

The said: Is there no person who knows if the pesach pushes aside Shabbos or not?

They said to them: There is one person, who came up from Babylon named Hillel the Babylonian, who served two great men of the generation, Shemaya and Avtalyon, and would know if the pesach offering pushes aside Shabbos, or if not.

They sent and called for him and said to him: Do you not know if the pesach offering pushes aside Shabbos, or if not?

… [Hillel's proofs that it does override Shabbos based on derashah and logic ellided] …

Immediately they gave him to sit at the head and appointed him their Nasi. He expoinded the laws of Pesach that whole say. He started to accuse them with words. [Hillel] said to them: Who caused to you that I would come up from Babylon and be Nasi over you? The laziness that was within you, that you did not serve these two greats of the generation, Shemaya and Avtalyon.

They said to him: Rebbe, if he forgot and did not bring the knife on Friday, what is [the halakhah]?

He said to them: I heard the law, but I forgot it. Leave it to Israel — if they are not prophets, they are the children of prophets.

The next day, someone whose Pesach offering was a lamb buried [the knife] in its hair. A kid — he would tie [the knife] to its horns. Once [Hillel] saw the event, he remembered the law. He said to them, “Like this is what I heard from [my mentors] Shemaya and Avtalyon!”

- Shabbos 66a-b

Notice that R Zeira’s (as Rav Ze’ira was called in the Bavli) is missing from this version. Instead there is emphasis placed on Hillel’s ability to prove the first law, and so we are left with the contrasting impression: that had Hillel had a proof and no tradition from the past, he would have been equally willing to give an answer on that basis about the knife, just as he did about the slaughtering itself.

(Side-note: The Bavli’s version makes a mussar point. The implication is that Hillel forgot the halakhah as a consequence of his standing in judgment of Benei Beseira and their Sanhedrin, holding himself superior to them for serving his mentors.)

In any case, the two Talmuds are consistent with their respective general approaches. As I wrote on my notes summarizing my first impressions of learning Yerushalmi, “Invoking Tradition“:

I don’t just mean that because there was no Bavli-style shaqla vetarya, the Yerushalmi fell back onto relying more on sources. Rather, in Eretz Yisrael the feeling was that citations and word-of-mouth transmission is more reliable and more meaningful than relying on reasoning. And this mode was more viable for people who were actually living on the same land and using the same institutions as the tannaim. We saw that Rav Yehudah held it was prohibited for his students to move from Pumbedisa to Israel, as the loss of deep reasoned learning was too great. But also, that kind of reasoning was more critical in Bavel, where there was that extra discontinuity.

It is thus unsurprising that the Yerushalmi sees in the story Hillel’s loyalty to the received tradition. In the Bavli’s version, the focus is instead on Hillel’s mastery of the rules of derashah, and his dispute and give-and-take with the Benei Beseirah defending the merits of argument — and only when he cannot convince based on the merits of the argument does Hillel mention having received the ruling from his mentors.

This notion of loyalty to tradition as it was experienced from one’s mentors also appears in the mishnah in relation to Hillel:

הלל אומר, מלא הין מים שאובין, פוסלין את המקוה–שאדם חייב לומר כלשון רבו; שמאי אומר, תשעת קבין.  וחכמים אומרין, לא כדברי זה ולא כדברי זה; עד שבאו שני גרדיים משער האשפות שבירושלים, והעידו משם שמעיה ואבטליון, ששלושת לוגין מים שאובין פוסלין את המקוה, וקיימו את דבריהם.

Hillel says: A full hin of stored water invalidates a migvah — for a person is obligate to speak in his rebbe’s language. Shammai says: 9 qavin. The Sages say: neither like this one’s words nor like that one’s words. Until two weavers entered via the Trash Gate of Jerusalem, and testified in the name of Shemaya and Avtalyon that three lug of stored water invalidate a miqvah. Then the Sages established their words [to the law].

Edios 1:3

What does the mishnah mean when Hillel adds “for a person is obligate to speak in his rebbe’s language”? Rashi says that Hillel was explaining why he used the measure of a hin rather than one of the older, halachic standard units. Of course, Hillel’s comment only shifts the question back a generation. If we are to expect tannaim to use halachic-standard units, why didn’t Shemaya and Avtalyon do so? The Rambam rejects this expectation, and instead says that Hillel was commenting on pronunciation. Hillel was so concerned with preserving the tradition as experienced, he immitated his mentors’ accent. Shemaya and Avtalyon were converts, and therefore didn’t grow up with Hebrew. Greek has no /h/ sound, so Hillel repeated the words as they said it, “melo ‘in — a full ‘in“. And then had to explain the dropped hei.

While this mishnah is consistent with Rabbi Ze’ira’s comment, “Any Torah which has no ‘ancestral home’ isn’t Torah”, it actually reduces the power of the story as a proof of the point. All agree that Hillel’s fidelity to the words of his rabbeim was unique, that we aren’t expected to imitate the accent in which we heard the words. So, perhaps it is also part of this uniqueness that kept Hillel from trying to deduce a law he wasn’t taught.