Aspaqlaria

This post, like the one I blogged last week, reflects a conversation with R’ Rich Wolpoe and R’ Ben Hecht on NishmaBlog and email, on the topic of R’ Nathan Lopez Cardozo’s “On the Nature and Future of Halakha in Relation to Autonomous Religiosity“. That issue appears to be closely tied to the role of communal pesaq, and why do we need some kind of unity in practice, anyway. Comments on that blog entry also revolve around the role of communal acceptance of a particular pesaq and how that creates authority.

How do we balance that communal nature of a halachic community, of being a Chosen People, with the individual’s personal perspective and unique nature? And how does that balance express itself how halachic rulings should be made and followed?

Both Mussar and Self Help involve a definition of the ideal, becoming cognizant of the real, and finding a path from the real to the ideal. Where things differ is in who defines the ideal. In Self Help, the focus is on actualizing the person you wish to be. Thus there is a focus on personal choice, doing your own thing, and autonomy.

In Mussar, it’s to become the person Hashem created you to be. For that matter, the same could be said of the Yeshiva Movement, and the ideal Jew as described in Rav Chaim Volozhiner’s Nefesh haChaim. The split within Lithuania was about the amount of conscious effort one must place in the task of refining oneself. Rav Yisrael Salanter taught that one must actively pursue middah work. The Yeshiva Movement as it evolved in Volozhin and its daughter schools taught that Torah in-and-of-itself will effect this change, and one need only set out to study Torah, with the traditional focus on talmud and halakhah to become the people Hashem created us to be.

To that contrast, let me add a third alternative (in addition to self-help and Mussar): In Chassidus, the ideal is to cleave to G-d. There is a definition of an ideal person, although not phrased in terms of personal refinement but rather in how he relates to the Almighty. And so we can say that in both in the Vilna Gaon’s legacy and in that of the Baal Shem Tov, Judaism is defined in terms of personal becoming — whether it a process of becoming ever more shaleim (whole) or davuq (attached [to the Creator]), respectively.

And for that matter, Rav Hirsch’s approach to the purpose of mitzvos is as symbols and actions that inculcate lessons — and therefore also phrased as a personal transformation.

Given this focus, where then does national membership belong? Shouldn’t we each just follow those halachic positions that best express our own, personal, religiosity? R’ Cardozo’s playing down the role of codification is all about using the fluidity that would enable to better find meaningful religious experience. And yet I objected entirely because I assigned an importance to conformity, and in particular to the extent that we’re taught that accepted precedent is binding and closes the door on practicing the alternative. Why?

If we were discussing self-help this question would be valid. If self refinement were to be the person I defined as ideal, then such limitations would have not place.

However, an ideal of sheleimus and deveiqus defines an ideal in which each individual’s meaning is found as part of the whole. In playing a role in a larger community. Someone who tries to live as a metaphoric island can not be whole.

Kelal Yisrael is a corporate entity of which the Rambam in Seifer haMitzvos can discuss mitzvos that apply between two Jews in terms of “haqatzeh el haqatzeh”, what “one end” does to “another end”. But Israel is also a set of Jews, a number of individuals.

The Rav argued that beris Noach and beris avos were covenants made between G-d and individuals, Noach and the forefathers respectively. Whereas beris Sinai created a corporate entity — the Jewish People. And from this he draws distinctions between stories in Bereishis and how we observe Torah today.

Personally, I would have made the personal covenent vs. national covenent distinction later, between the two berisim Hashem makes with us in the desert — at Sinai, and “the words of the beris … aside from the beris which He made with them in Horeb” (Devarim 28:69) at the plains of Moav. It is in describing this latter covenent that was given shortly before crossing the Jordan into Israel in which Hashem relays most of the nation-building laws of the Torah.

Rabbi Hecht beautifully described the national character of Torah as:

… [W]hat we may term the model of the symphony which advocates for the a collective of individuals who are actualizing their individuality but in a collective manner so that the result is greater than the sum of the parts…

The Ramban (among numerous others) likens the Jews to organs in a body. It’s like the symphony model. Not uniformity in action, but unity though each playing a different part toward the same combined action.

Or, putting it in the covenental terms — the beris at the plains of Moav had to come after a generation of people raised in a mileu of the beris Sinai. However, beris Sinai couldn’t be complete without it. Until the details spelled out in Devarim, given at Arvos Moav, there was only an incomplete definition of the entity the individual is to try to be an effective part of. At Sinai we were given the tools to learn how to play music, if we chose to pick them up. But at Arvos Moav the musicians were given the score to which the orchestra will be playing.

Does this deny the idea we saw in common in all those schools of thought that place the centrality of halakhah in how it shapes the person following it? Not at all! The goal is to be the best musician you can, to choose the instrument best suited to your proclivities and abilities and master it.

By giving us free will, Hashem offers us autonomy in two ways — first, we could choose to violate the beris. We have bechirah whether or not to fulfill the terms of the covenant. But even within conforming, we can choose our intrument. And a point somewhere in between these two extremes, by choosing how much we invest in studying music we have some input into whether that role in the symphony is first violin, or part of the chorus. Between the skills with which we were blessed, how and if we choose to develop them, we have some autonomy in our choice of role to play in the orchestra.

This post is in response to R’ Nathan Lopez Cordozo’s “On the Nature and Future of Halakha in Relation to Autonomous Religiosity” on the Institute for Jewish Ideas and Ideals web site.

First to quote some points with which I firmly agree:

I teach Jewish Philosophy. I am confronted daily with countless young Jews who search for an authentic Jewish religious way of life, but are unable to find spiritual satisfaction in the prevalent halakhic system as practiced today in most Ultra or Modern-Orthodox communities. For many of them, typical halakhic life is not synonymous with genuine religiosity. They feel that halakha has become too monotonous, too standardized and too external for them to experience the presence of God on a day-to-day basis. Beyond “observance”, they look for holiness and meaning. Many of them feel there is too much formalism in the halakhic system, and not enough internal meaning; too much obedience and not enough room for the individualistic soul, or for religious spontaneity.

…

A careful read of modern Jewish Orthodox literature reveals that many authors misunderstand the nature of Jewish law. Much of this literature is dedicated to extreme and obsessive codification, which goes hand in hand with a desire to “fix” halakha once and for all. The laws of muktzeh, tevilath kelim, tzeniut and many others are codified in much greater detail than ever before. These works have become the standard by which the young growing observant community lives its life. When studying them one wonders whether our forefathers were ever really observant, since such compendia were never available to them and they could never have known all the minutiae presented today to the observant Jew. Over the years we have embalmed Judaism while claiming it is alive because it continues to maintain its external shape.

The majority of halakhic literature today is streamlined, allowing little room for halakhic flexibility and for the spiritual need for novelty. For the most part, the reader is encouraged to follow the most stringent view without asking whether this will actually help her or him in their Avodath Ha-Borei (service of the Almighty) according to her or his distinct personality. The song of the halakha, its spirit and mission are entirely lost in this type of literature. When the student looks beyond these works seeking music, he is often confronted with a dogmatic approach to Judaism which entirely misses the mark. We are plagued by over-codification and dogmatization.

Another obsessive attempt which contrasts the very nature of Judaism is the attempt to codify Jewish beliefs. Jewish beliefs are constantly dogmatized and halakhicized by rabbinic authorities, and anyone who does not accept these rigid beliefs is no longer considered to be a real religious Jew. A spirit of finalization has taken over Judaism.

An easy example is a comparison of R’ Maurice Lamm’s “The Jewish Way in Death and Mourning” with a more recent guide for the aveil, such as ArtScroll’s “Mourning in Halachah”. The former weaves together halakhah, agadah, and the experience of the mourner in the current generation.

However, I feel that R’ Cardozo, in his battle against ossification, errs too far on the other side. I do not know if it’s his actual position, the article appears to say that he is intentionally being provocative in order to spark a dialog:

Surely there are many arguments which can be brought against the contents of this essay, some of which I can point to myself. However, the purpose of this essay is to get people thinking, not to claim the definitive truth of my observations and suggestions.

I am fully aware that the views expressed may not be palatable to most bona fide and respected poskim. My analysis and suggestions will probably not carry their approval. I hope only to act as a catalyst in the hope that some halakhic authorities and Jewish thinkers will take my suggestions seriously and be prepared to discuss them. They are nothing more than thoughts which came to mind when contemplating and discussing these issues with students.

That said, he ties the current spate of quickie guides for the sound-bite generation, “just give me the bottom line” to the objections against codification in the days of the rishonim.

Over the last five hundred years, famous rabbinic leaders have called to limit the overwhelming authority of Rabbi Josef Karo’s Shulhan Arukh and Maimonides’ Mishneh Torah. They felt that these works do not reflect authentic Judaism and its halakhic tradition. The reason is obvious. Both these great codes of Jewish Law are very un-Jewish in spirit. They present halakha in ways which oppose the heart and soul of the Talmud, and therefore of Judaism itself. They deprived Judaism of its multifaceted halakhic tradition and its inherent music. It is not the works themselves which are the problem but the ideology which they represent: The ethos of codifying and finalizing Jewish Law.

…

Halakha is the practical upshot of un-finalized beliefs, a practical way of life while remaining in theological suspense. In matters of the spirit and the quest to find God, it is not possible to come to final conclusions. The quest for God must remain open-ended to enable the human spirit to find its way through trial and discovery. As such, Judaism has no catechism. It has an inherent aversion to dogma. Although it includes strong beliefs, they are not susceptible to formulation in any kind of authoritative system. It is up to the Talmudic scholar to choose between many opinions, for they are all authentic. They are part of God’s Torah, and even opposing opinions “are all from one Shepherd” (Hagiga 3b).

…

Three early authorities were deeply concerned about this development: Rabbi Shelomo Luria, known as Maharshal (1510-1573); Rabbi Yehudah Low ben Betzalel, known as the Maharal of Prague (1520-1609); and Rabbi Haim Ben Betzalel (1530-1588), brother of the Maharal. Each in his own way attacked the Mishneh Torah and the Shulhan Arukh, claiming they were anti-Talmudic and therefore anti-halakhic. Maharshal accused Maimonides of acting “as if (he) received it (the Mishneh Torah) directly from Moshe at Mount Sinai who received it directly from Heaven, offering no proof …” (Yam shel Shelomo, Introduction to Bava Kama). Directing his attack to Rabbi Joseph Karo’s Shulhan Arukh in which the author follows the majority opinion of three authorities (Rif, Rosh and Maimonides), Maharshal asked how the author had the right to do so. Did Rabbi Joseph Karo receive such a tradition going back to the days of the sages? (ibid)

Maharshal goes on to state that the Shulhan Arukh’s entire enterprise is dangerous. Those who study it will come to believe that what Rabbi Joseph Karo wrote has finality…

R’ Cardozo, by going further than most of his audience would be (and I will argue below — should be) willing to, loses that audience with respect to the primary problem. The same flaw can be found in Rav Gidon Rothstein’s response to the article, “Halacha and Autonomous Religiosity: What’s the Problem?” on the RCA‘s blog, Text and Texture. In response to an article which suggests too much fluidity in halakhah, he posits a more rigid definition of halakhah than commonly accepted.

As to Talmudic times, the Tosefta in Sotah 14;9, cited in Sanhedrin 98b, blames the multiplicity of debates on students’ failure to study properly, hardly an encomium for diversity of opinion in the halachic world; turning to elu va-elu itself, while Kabbalists did, indeed, find an interpretation in which it meant that all those opinions were right, most rishonim (and R. Moshe Feinstein, in his introduction to Iggerot Moshe) understand the phrase as allowing us to tolerate a wrong opinion as long as it was reached through valid process.  Indeed, the general understanding of the mitzvah to follow majority rule—and the largely-ignored obligation of lo titgodedu, not to have Jewish communities be split by multiple forms of practice– seems to prefer avoiding precisely the kinds of splits R. Cardozo wants to uphold as an ideal.

And in a response to a comment on that blog entry, R’ Rothstein adds, “…it seems to me that Elu Va-Elu was taken in a completely different direction from about the 15th century on, a guess that ties in to my PhD dissertation and my feelings about detours of Jewish thought, but that’s not for here…”

However, as we saw in the past, the notion that halakhah contains “49 ways to declare [something] impure and 49 ways to declare [it] pure” is a more clear-cut source for plurality than the talmud about eilu va’eilu“. For sources in the gemara, Rashi, the Ran (who was a rationalist, not a Qabbalist), and numerous other pre-15th cent. CE baalei mesorah, please see my summary of articles on the subject by R’ Moshe Halbertal (“Controversy in Halacha“) and R’ Michael Rosensweig (“Elu Va-Elu Divre Elokim Hayyim: Halakhic Pluralism And Theories Of Controversy“).

I also find an interesting point of commonality between the two positions. R’ Marc Angel questions the binding nature of evolution to halakhah since the gemara. R’ Gidon Rothstein questions the significance of the evolution of aggadita since the rishonim. Both are therefore calling for some sort of roll back to what they believe to be an earlier state that was more to their liking. (And neither describe the past as I would.)

To present my own take on the subject…

I think there is a major failing in his essay in not clearly distinguishing between codification and the need for codification. When we say that Rebbe’s decision to codify the mishnah was an instance of overturning a specific law for the sake of the whole (“eis la’asos Lashem, heifeiru Sorasekha — it’s time to do for G-d, overturn Your Torah”), we’re clearly saying the situation was a step down. BUT, that doesn’t mean that codifying — whether the Medrashei Halakhah completed before Rebbe’s day, his completion of the Mishnah, the Tosefta, the Talmuds, the Beha”g, the Rif, the Rambam, the Tur, the Shulchan Arukh, the Rama, the Levush, the Shulchan Arukh haRav, the Chayei Adam, the Qitzur, the Arukh haShulchan, the Mishnah Berurah, the Ben Ish Hai, etc, etc, etc.. were themselves a bad idea. It is sad when we reach an impasse that requires a new round of codification. But when we do need it, producing a code is the right response. It is not codification itself which is ill, and until we repair the cause for the need, the progressive codification is still necessary.

The formula the Rambam uses to describe the what gave the Talmud Bavli its binding nature is that it was accepted by “all of Israel”. Not in every one of its rulings, but as the point of origin for further study. And today, across the gamut, semichah studies center around the Shulchan Arukh (with the exception of Bal’adi Teimanim who center their pisqa on the Rambam). The same mechanism which gives the gemara the authority R’ Cardozo attributes to it gives the Shulchan Arukh its authority.
Someone who davens from R’ Saadia Gaon’s (much shorter) siddur, omitting things said by all our communities for centuries, or to take a real case, from Nusach Eretz Yisrael as found in the Cairo Geniza, isn’t following the halachic process. The plurality caused by having a distinctly oral and fluid tradition is part of a stream down time; by leaving that stream, that dialog down the generations, one abandoned the core of Judaism.

Orthodox Jews today are under the impression that the job of religion is to provide answers; and moreso, easy-to-understand answers that can resolve life’s dilemmas in one sitting — all tied up with a nice bow.

In reality, life’s problems are hard. Let me give a story from personal experience. Someone close to me is a baalas teshuvah. The only one in her family in a few generations to embrace observance. And she, like most baalei teshuvah, was presented a worldview in which, if you just believe enough, the only airplane one would miss is the one that was going to crash. (Many of you are familiar with this genre of story that I’m trying to portray.) But she, alone among all her siblings and cousins, went through the crashing pain of losing a daughter. So, where is the “better life” the kiruv professionals led her to expect? Life is not simple, and we do ourselves a disservice pretending it is.

Religion’s job isn’t to resolve life’s struggles, but to give us a meaningful way to grapple with them. Whether we’re talking about our perspective on life, or about pesaq halakhah.

Quick and cut-and-dry one-size-fits-all rulings isn’t how halakhah is supposed to work. While I’m arguing that a ruling that “all of Israel” accepts is binding, we have gone well beyond that with the current proliferation of English halachic guides. There is a feel to the give-and-take of halakhah, to its responses to the costs to the individual, to their personal talents and emotional proclivities, where they stand spiritually, the challenges and gifts Hashem placed in their path, and how they view life, that one really not only needs a human halachic decisor, but preferably one who knows the asker and can help them coordinate a spiritual journey through life.

There is enough room among decisions which have so far not reached universal consenus (“nishpasheit bekhol Yisrael“) nor canonized as the person’s inviolate minhag (eg: qitniyos) to address the contemporary Orthodox Jew’s need for a meaninful spiritual life through a synthesis of religion (aish) and rite (das).

מעשה ברבי ישבב שעמד והחליק את כל נכסיו לעניים. שלח לו ר”ג, “והלא אמרו חומש מנכסיו למצות?” ור”ג לא קודם לאושא היה? ר’ יוסי בר’ בון בשם ר’ לוי: כך היתה הלכה בידם, ושכחוה, ועמדו השנים והסכימו על דעת הראשונים. ללמדך שכל דבר שבית דין נותנין נפשן עליו הוא מתקיים, כמה שנאמר למשה מסיני.
ואתייא כיי דאמר רבי מנא: “כי לא דבר רק הוא מכם” — ואם הוא רק מכם, הוא למה שאין אתם יגיעין בתורה. “כי הוא חייכם” — אימתי הוא חייכם? כשאתם יגיעי’ בו.
רבי תנחומא בשם רב הונא: (שמות לה) “ובצלאל בן אורי בן חור למטה יהודה עשה את כל אשר צוה ה’ את משה”. “אותו משה” אין כתיב כאן אלא “אשר צוה ה’ את משה” — אפי’ דברים שלא שמע מפי רבו, הסכימה דעתו כמה שנאמר למשה מסיני.
ר’ יוחנן בשם ר’ בניי: “כאשר צוה ה’ את משה עבדו” כן צוה משה את יהושע, וכן עשה יהושע. “לא הסיר דבר מכל אשר צוה ה’ את משה” — “אותו משה” אין כתיב כאן, אלא “מכל אשר צוה ה’ את משה” — אפי’ דברים שלא שמע מפי משה הסכימה דעתו כמה שנאמר למשה מסיני.

An event with Rabbi Yeshovav, that he stood and divided all his property amongst the poor. Rabban Gamliel sent for him.  ”Didn’t they say [that a most] one fifth of his property [should be spent] for mitzvos?”

But wasn’t Rabban Gamliel before Usha [where they ruled this law about one fifth]?

Rabbi Yosi beRabbi Bun in the name of Rabbi Levi: This was the accepted law in their hands. It was forgotten, and the later ones established and agreed to the intent of the early ones. This comes to teach you that anything a court puts their souls into endures, as though it was said to Moshe from Sinai.

This goes like that which Rabbi Mana said: “For it is not an empty thing from you” — and if it were empty, it would be because you didn’t study the Torah deeply. “For it is your life” — when is it your life? Then you do study Torah deeply.

Rabbi Tanchuma in the name of Rabbi Huna: “And Betzalel ben Uri ben Chur of the tribe of Yehudah did all that Hashem commanded Moshe.” It doesn’t say here “that Moshe commanded him”, just “that Hashem commanded Moshe”. Even things which [Betzalel] did not hear from his rebbe’s [Moshe's] mouth, his idea agreed [with the rest of the Torah, or perhaps: with the Will of G-d] as though it were said to Moshe from Sinai.

Rabbi Yochanan in the name of Rabbi Benayei: “As Hashem commanded his servant Moshe” so Moshe commanded Yehoshua, and so Yehoshua did. “He did not veer from anything that Hashem commanded Moshe” — it doesn’t say here “that Moshe commanded him”, rather “from all that Hashem commended Moshe”. Even things which he didn’t hear from Moshe is ideas agreed [with the rest of the Torah] as though it were said to Moshe from Sinai.

– Yerushalmi Pei’ah 1:1, 3a
(see also a Yerushami Shevi’is 1:5, 2b for a discussion similar to the first part of the above)

… הזורע את שדהו שני מיני חטים: עשאן גורן א’, נותן פאה אחת. עשאן שתי גרנות, נותן שתי פאות.

מעשה שזרע ר”ש איש המצפה לפני ר”ג ועלו ללשכת הגזית ושאלו אמר נחום הלבלר מקובל אני מר’ מישא שקיבל מאבא שקיבל מן הזוגות שקיבלו מן הנביאים הלכה למשה מסיני בזורע את שדהו שני מיני חטים עשאן גורן אחת נותן פאה אחת עשאן שתי גרנות נותן שתי פאות:

… Someone who plants his field with two breeds of wheat: If he make of them one storage in the silo [and thereby treats them as one crop], he gives one pei’ah [corner left over for the poor, in this case from the combined crop]. If he makes of them two storages [treating each breed as its own crop], he must give two pei’os [one from each breed].

An event where Rav Shimon, a man of Mitzpah, planted in front of Rabban Gamliel [such a crop]. They went up to the Chamber of Hewn [Wood, the meeting room for the Sanhedrin in the Beis haMiqdash], and they asked [what to do]. Nachum the Record-Keeper said, “I received from Rabbi Meisha, who received from his father who received from the Pairs [of sages who led the first generations of tannaim, starting with the end of the Great Assembly and of prophecy] who received from the prophets a law [given] to Moshe from Sinai that someone who plants his field with two breeds of wheat: if he makes of them one storage he gives one pei’ah, if he makes of them two storages he must give two pei’os.

– Mishnah Pei’ah 2:4

It seems to me that there are two different means given for how we could receive a law that is considered “halakhah leMoshe miSinai — a law [given] to Moshe from Sinai”.

1. The mishnah states the obvious meaning: Moshe received the law, and it was faithfully transmitted down the ages.
2. The Yerushalmi on the previous chapter gives another possibility — that someone toiled in Torah to discover a result that was certainly given to Moshe, even though it was not then passed on down the generations.

This second possibility requires more analysis.

אמר רבי אילעאי: שאלתי את רבי יהושע, “באלו עומרים פליגי בית שמאי וב”ה?”

אמר לי, “בתורה הזאת, עומר הסמוך לגפה ולגדיש ולבקר ולכלים ושכחו — בית שמאי אומרים ‘אינו שכחה’; ובית הלל אומרים, ‘שכחה’.”

וכשבאתי אצל רבי אליעזר, אמר לי, “לא נחלקו בית שמאי ובית הלל על העומר שהוא סמוך לגפה ולגדיש ולבקר ולכלים ושכחה, שהוא שכחה. ועל מה נחלקו? על העומר שנטלו ונתנו בצד הגפה, בצד הגדיש, בצד הבקר, בצד הכלים, ושכחו. שבית שמאי אומרים, ‘אינו שכחה’, מפני שזכה בו; ובית הלל אומרים, ‘שכחה ‘.”

וכשבאת, והרציתי את הדברים לפני רבי אליעזר בן עזריה, אמר לי, “הברי’ הן הן הדברים שנאמרו למשה בחורב.”

Rabbi Ilai said: I asked Rabbi Yehoshua about which sheaves the Beis Shammai and Beis Hillel disagree. He said to me, “In this Torah: a sheaf that is next to a wall, a stack, a heard or utensils and [the owner] forgot it. Beis Shammai say, “It is not shikhekhah [and thus not sufficiently forgotten for the owner to obligated to leave the sheaf for the poor].” Beis Hillel say, “It is shikhekhah.”

When I went to Rabbi Eliezer, he said to me, “Beis Shammai and Beis Hillel did not disagree about a sheaf that is next to a wall, a stack, a heard or utensils and [the owner] forgot it, that it is shikhekhah. About what did they disagree? About a sheaf that he picked up and placed on the side of a wall, the side of a stack, the side of a heard or the side of utensils. That Beis Shamai say, “It is not shikhekhah” because he put significance to it. Beis Hillel say, “It is shikhekhah” [because the reminder he used is mobile, and not guaranteed to be there later anyway].

And when I came and presented these ideas before Rabbi Elazer ben Azariah, he said to me, “By the Creator! These are the very things that were said to Moshe in Choreiv.”

– Yerushalmi Pei’ah 6:5, Vilna ed. 29a

Here we have the explanation of the scope of a dispute between Beis Hillel and Beis Shammai as being given to Moshe at Mount Sinai (a/k/a Choreiv), and yet the two schools obviously couldn’t have had that dispute until a millennium after the revelation!

But the gemara doesn’t speak of a “halakhah” given to Moshe, but rather “hadevarim” — echoing the first half of the voice from heaven “אלו ואלו דברי א-לוהים חיים הן, והלכה כבית הלל — These and those are the words of the Living G-d, and the halakhah is like Beis Hillel”.  Perhaps Rabbi Elazar ben Azariah was saying that this understanding of the dispute captures at least part of the plurality of thought that Hashem gave Moshe on the topic of grain forgotten near movable but significant items.

In terms of the two types of leMoshe miSinai, though, this truth — an understanding of a dispute a millenium later — must be of the discovery of a truth sort (type 2), and couldn’t possibly have been handed down teacher to student since Horeb.

The Rambam has a famous difficult statement with respect to halakhos leMoshe miSinai. He writes that they are never touched by machloqes. The obvious difficulty — there are countless counterexamples.  (For example, the list of deformities that would render an animal tereifah and thus make any shechitah irrelevant is both halakhah leMoshe miSinai and the subject of numerous disputes.)

It doesn’t fit in the words of the Rambam, but I wish could have used the above distinction to resolve the question. Within halakhos that we know are miSinai because Moshe told Yehoshua who told the Zeqeinim and to on down the generations could in theory lose their details in transmission, and machloqes could ensue.

However, through true yegi’ah beTorah (as the first Yerushalmi puts it, above) one can rediscover a truth that we know must have been given to Moshe. If that truth is a halakhah (rather than a spectrum of divrei E-lokim Chaim), then we would only realize its miSinai nature because it is so clearcut in hindsight that no one would consider an alternative position.As the Talmud puts it, “ללמדך שכל דבר שבית דין נותנין נפשן עליו הוא מתקיים, כמה שנאמר למשה מסיני — to teach you that any matter that a beis din gives over their souls to it endures, as though it was said to Moshe from Sinai.”

As I wrote, though, this can not be the Rambam’s meaning. His exact words in his introduction to his commentary to the mishnah (pg 11 in the Qafech edition) are “כל זמן שיאמר אדם קבלתי כך וכך — any times that a person says ‘I received such and such…’” It is explicitly a received halakhah leMoshe miSinai, and not one discovered through yegi’ah.

Still, the Rambam’s position is difficult as at face value it contradicts statements he himself makes elsewhere. And most other rishonim dispute it. So perhaps this suggestion stands as a possibility without his great name attached to it.

In response to my previous post, Shmuel commented:

“They learned facts from their rabbeim, but without spending the time that comes from watching them live, they didn’t learn attitude.”

That statement alone is worth its own post, or many, for that matter…

So, a little more elaboration. Here’s the section we’re discussing:

Qabbalistically, Beis Shammai is described as embodying the sephirah of Din, strict Justice and uncompromising Truth, whereas Beis Hillel draws from the sephirah of Chessed, Generosity and Lovingkindness. This fits the observation that Beis Hillel is far more often the more lenient of the two. Also, we are told that Beis Hillel’s position was codified as law over Beis Shammai’s because Beis Shammai would only teach their own position, whereas when a member of Beis Hillel taught, he started with Beis Shammai’s position, and then his own. Procedurally, we follow Beis Hillel because they were the larger school, and halakhah follows the majority. Beis Shammai was a smaller school that had stricter entrance requirements. Also, Chessed vs. Din. But their attitude might also explain how Beis Hillel grew more rapidly.

Furthermore, the reason given for the radical increase in the number of disputes between the generation of Hillel and Shammai and those of their schools is “shelo shimshu es rabosam — they did not properly serve their mentors.” They learned facts from their rabbeim, but without spending the time that comes from watching them live, they didn’t learn attitude. The Maharal explains that since Hillel was the nasi, his job was to distribute funds and build an infrastructure for society. His job was Chessed. Shammai, as the head of the court, had Din as a profession. The students, because of their distance from the rebbes, could not separate the differences due to their roles from the rebbeim’s approach to Torah.

The first element is a Tosefta (Chagiga 2:4), which also appears in a slightly different form in the Yerushalmi (Chagiga 1:4, Vilna ed. 8b), and the same basic idea in the Bavli (Sanhedrin 88b). It begins by telling us how machloqes was avoided in the days of the zugos, by having questioned referred up a hierarchy of courts for resolution, and once resolved, the answer was promulgated in the streets. However, “משרבו תלמידי שמאי והלל שלא שמשו כל צרכן [הרבו] מחלוקת בישראל [ונעשו כשתי תורות...] – when the number multiplied of students of Hillel and Shammai who did not serve [their mentors] as much as they needed, machloqes multiplied in Israel and it became as though there were two Torahs.” From then on they would check and inspect anyone who was wise, modest, of positive character, fearful of sin, who has a distinguished appearance and in whom people’s spirits find pleasant, and appoint him a local judge. And from there, the judge would rise up the ranks.

There is a second Tosefta (Sotah 14:1): “משרבו זהיהי\זהוהי הלב רבו מחלוקת בישראל והן שופכי דמים משרבו תלמידי שמאי והלל שלא שמשו כל צרכן הרבו מחלוקת בישראל ונעשית התורה כשתי תורות — When the number of deep-hearted multiplied, machloqes multiplied in Israel — and they spill blood. When the number multiplied of students of Hillel and Shammai who did not serve [their mentors] as much as they needed, machloqes multiplied in Israel and it became as though there were two Torahs.”

(Notice that both tie the lack of shimush, of serving one’s rebbe, to attitude and middos, not a loss of facts. The first Tosefta says that the loss forced us to select judges who are not only wise, but also of proper middos (and who people would obey). The second cites the problem with the students of Hillel and Shammai as a follow up to those whose love of sophistry led to divisions and death.)

In contrast, we have this explanation for why Yehoshuah was selected as Moshe’s successor, from Bamidbar Rabba (21:14). After dealing with the daughters of Tzelafchad’s question about inheriting their father’s land, Moshe turned to Hashem and asked about his own successor. Hashem first ruled out Moshe’s own children, since they did not sufficiently toil in Torah. But “יהושע הרבה שרתך והרבה חלק לך כבוד והוא היה משכים ומעריב בבית הועד שלך הוא היה מסדר את הספסלים והוא פורס את המחצלאות הואיל והוא שרתך בכל כחו כדאי הוא שישמש את ישראל שאינו מאבד שכרו קח לך את יהושע בן נון לקיים מה שנאמר נוצר תאנה יאכל פריה. — Yehoshua served you a lot and accorded you much honor. And he would awaken early and stay late in the evenings in your house of study. He would set up the benches and he would spread the mats. Since he served you with all his strength, is is appropriate that he serve Israel fir he does not lose his reward. Take for yourself Yehoshua bin Nun to fulfill what is days ‘The one who plants the fig shall eat its fruit.’ (Mishlei 27:18)”

The key attribute that distinguished Yehoshua from Moshe’s sons’ lack of toil in Torah was in how he served his teacher.

Generation 1:

Nasi: Yosi ben Y’oezer – Have your home open to sages, you should attach yourself to their dust, and drink their words with thirst.
ABD: Yosi ben Yochanan – Your home should be open to guest, you should be generous, minimize flirtatiousness…

In short, the Maharal notes that the nasi‘s advice has us developing our ahavah, our love of G-d, through His Torah. The ABD, however, is promoting yir’ah, warning us against an excessively material focus and greed. And the Maharal sees this pattern in each of the subsequent generations as well. The nasi is known for preaching a message of ahavah, and the head of the court, one of yir’ah.

Generation 2:

Nasi: Yehoshua ben Perachiah – Get yourself a rabbi and a friend, and judge everyone favorably — ahavah
ABD: Nitai haArbeili – Avoid a bad neighbor, don’t befriend evil people, and don’t give up in times of trouble — yir’ah

Generation 3:

Nasi: Yehudah ben Tabai – A judge should act like an advocate; when the litigants come before you, assume they’re both guilty, but when they leave, since they follow your ruling, assume they’re both righteous — ahavah
ABD: Shin’on ben Shetach – Meticulously cross-examine the witnesses, and be careful not to ask leading questions — yir’ah

Generation 4:

Nasi: Shemaya – Love work, hate leadership, and avoid government ties — ahavah
ABD: Avtalyon – Sages, be careful with your words! The wrong words could get you exile, mislead your students and lead to chillul Hashem! – yir’ah

Generation 5:

Nasi: Hillel- Be like the students of Aharon: love and pursue peace, love all people and bring them to the Torah — ahavah
ABD: Shamai – Sages, be careful with your words! The wrong words could get you exile, mislead your students and lead to chillul Hashem! – yir’ah

A pattern. Until we get to the students who didn’t sufficiently serve their mentors, and we needed a new sort of transmission and a new sort of leadership. No longer did we have zugos, a pair of leaders attached to the Sanhedrin. As we saw from the Tosefta, no longer was the Sanhedrin sufficient to resolve all the differences of opinion between them.

As I put it in that earlier post:

They learned facts from their rabbeim, but without spending the time that comes from watching them live, they didn’t learn attitude. The Maharal explains that since Hillel was the nasi, his job was to distribute funds and build an infrastructure for society. His job was Chessed. Shammai, as the head of the court, had Din as a profession. The students, because of their distance from the rebbes, could not separate the differences due to their roles from the rebbeim’s approach to Torah.

And so, rather than each having a job of preaching one side of a balance, each school lost that balance. One can view the halachic process as a search to reintegrate, to become whole. And so, with balance lost, the process became far more complex, and the search for integration that much more difficult.

Mishnah: These are the things which separate Beis Shammai and Beis Hillel with [respect to the laws of] a meal.
Beis Shammai say: [In Qiddush] bless the day [i.e. make the berakhah referring to the qedushah of Shabbos], and then bless on the wine.
And Beis Hillel say: Bless on the wine, and then bless the day.

גמרא מה טעמהון דבית שמאי שהקדושת היום גרמה ליין שיבוא וכבר נתחייב בקדושת היום עד שלא בא היין מה טעמהון דבית הלל שהיין גורם לקדושת היום שתאמר ד”א היין תדיר וקדושה אינה תדירה

Talmud: What is Beis Shammai’s reason?
The sanctity of the day causes that the wine be brought, and one is already obligated to sanctify the day even when the wine hadn’t yet arrived.
What is Beis Hillel’s reason?
The wine causes that the sanctity of the day be declared.
Another thought: The wine is [relatively more] frequent, and the sanctity is not [as] frequent [and there is a rule with mitzvos, that all else being equal, the more frequent one is done first.

- Yerushalmi Shabbos 8:1, 56b

Rav Shelomo Yoseif Zevin (LeTorah uleMo’adim) comments on a famous dispute between Beis Hillel and Beis Shammai, and from it establishes a basic pattern to their philosophies. The most preferred way of lighting Chanukah lights is to differ the number with the number of days. We follow Beis Hillel, and light one on the first day, two on the second, etc… We “increase and proceed”. Beis Shammai, however, started with eight on the first day, second on the second… — “decrease and proceed”. Why?

Rav Zevin notes that there is a general pattern in their disputes. Beis Hillel see the situation in terms of what is, whereas Beis Shammai look at the potential. Since with each day, we added to what was, we also add lights in our menorah. Each day the miracle was greater than the day before. Beis Shammai look at the potential inherent in the remaining oil of the original Chanukah, as well as in our remaining Chanukah celebration. Each day there is less to look forward to, less opportunity before us. Therefore Beis Shammai reduce the number of lights as we progress.

A second, more common explanation of the difference in their basic philosophical orientation:

Qabbalistically, Beis Shammai is described as embodying the sephirah of Din, strict Justice and uncompromising Truth, whereas Beis Hillel draws from the sephirah of Chessed, Generosity and Lovingkindness. This fits the observation that Beis Hillel is far more often the more lenient of the two. Also, we are told that Beis Hillel’s position was codified as law over Beis Shammai’s because Beis Shammai would only teach their own position, whereas when a member of Beis Hillel taught, he started with Beis Shammai’s position, and then his own. Procedurally, we follow Beis Hillel because they were the larger school, and halakhah follows the majority. Beis Shammai was a smaller school that had stricter entrance requirements. Also, Chessed vs. Din. But their attitude might also explain how Beis Hillel grew more rapidly.

Furthermore, the reason given for the radical increase in the number of disputes between the generation of Hillel and Shammai and those of their schools is “shelo shimshu es rabosam — they did not properly serve their mentors.” They learned facts from their rabbeim, but without spending the time that comes from watching them live, they didn’t learn attitude. The Maharal explains that since Hillel was the nasi, his job was to distribute funds and build an infrastructure for society. His job was Chessed. Shammai, as the head of the court, had Din as a profession. The students, because of their distance from the rebbes, could not separate the differences due to their roles from the rebbeim’s approach to Torah.

Taking thes to our opening dispute, with Beis Hillel as explained by the first opinion in the gemara…

Beis Shammai say the order of blessings in the night-time Qiddush is the order in which the obligations arrived. First it became Shabbos, then you sat at the table with the cup of wine. Therefore, Qiddush should start with the sanctification of Shabbos and end with the blessing on the wine.

Beis Hillel instead focus on the order in which we are able to fulfill each obligation.

So Rav Zevin’s explanation works. Beis Shammai follows the order in which one gains the potential to do the mitzvah. Beis Hillel follows the order in which one can actualize that potential.

Also, the Sephirotic interpretation: Beis Shammai look to the obligation, the chiyuv – which also means “debt”, even though the person has no ability to fulfill it. So, blessing Shabbos comes first. Beis Hillel take a more generous approach, and don’t consider such a chiyuv to be fully real. Therefore, the sequence is when one can act upon it.

The Chief Rabbi Sir Jonathan Sacks wrote the following in an article included in the 1992 book, Rabbinic Authority and Personal Autonomy (Dr. Moshe Sokol ed.), pp. 165-167:

[S]urely we are sociologically and philosophically sophisticate enough to realize — given the wealth of studies on this very point — that it is this modern consciousness that is radically subversive of tradition of all kinds. At the very heart of Judaism, biblical and rabbinic, is an insistence on standing apart from, sometimes maintaining an oppositional stance to, the secular ethos of the age. The very concept — itself biblical — of a “fence around the law” recognizes that there may be behaviors which, while not directly in conflict with Jewish law or values, are nonetheless subversive of them. It was remarkable, therefore, to find a series of “responsa” rejecting a set of halakhic assumptions in favor of an uncritical acceptance of a late-twentieth-century American view of what is “sexist” or undemocratic. This fails to pass a minimal threshold of sociological insight, let alone halakhic integrity.

I would hazard this view: that concepts like ervah and kavod are culturally determined, and that a general disposition to find them meaningless testifies to a failure of cultural transmission. I have argued that [Conservative Rabbi Joel] Roth’s responsum fails the test of integrity, or what I have called Daat Torah, by concentrating on narrow and formal argumentation and ignoring the wider ambit of halakhic values. It fails, in fact, exactly on those grounds in which Conservative thinkers claim prowess: historical and sociological sophistication. But this is part of a wider failures.

Halakhah is often taken to be a set of rules, and as such is governed by the general jurisprudential considerations that apply to rules. This view governs, for example, the entire presentation of Roth’s book, The Halakhic Process: A Systemic Analysis. But this is not so, as Maimonides makes clear in the Guide. The laws of Torah, he argues, are intended to do more than govern behavior. They are meant to shape character and cognition. That is why one cannot be halakhically indifferent to secular culture insofar as it shapes character and cognition in way antithetical to or subversive of Torah. We can go further. The extraordinary emphasis in both biblical and rabbinic Judaism on Torah not only or even primarily as law, but as an object of perpetual study, testifies to the degree to which Judaism finds its meanings not self-evident on the surface of either society or nature, but acquired through extended, indeed continual, education. A failure of talmud Torah will eventually lead to a failure of halakhah, for there will then be exactly the cognitive dissonance between law and sensibility that we find in the Conservative responsa. The answer to this is not halakhic change.

(Hat tip: R’ Gil Student on Hirhurim.)

Note how Rabbi Sacks words “it is this modern consciousness that is radically subversive of tradition of all kinds” are echoed in the sentiment in my most recent philosophy post, on Postmodernism and Mesorah. There I discuss the modern’s approach to texts and it’s relationship to more recent Conservative Jewish thought.

One popular Postmodern school is Deconstructionism. Rather than looking look for the meaning the text had to the author, but the meaning the text has to the reader. A hyper-correction to the opposite extreme. I think it’s the key to the Conservative movement’s approach to halakhah, once it left the classical academic approach of Historical School under the influence of Mordechai Kaplan’s concept of transvaluation. It literally asks the reader to recreate Judaism according to how he wants it to be.

…

[In contrast, m]esorah 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.

Definitionally, talmud Torah is entering the stream. Not seeing a statement as a point to isolate in time and space, but as a being within current that runs through history from creation to redemption.

I

I don’t think I can touch this topic without first defining what I mean by Postmodernism.

The old way of doing things, from the Enlightenment until the middle of the 20th century, was to encounter texts by trying to determine the author’s original intent. This requires finding the historical context of the author, learning about his mental state, etc…

Of course, it was rapidly found to be error prone. Whether we wish to or not, we can’t really recreate the world and the mind of the author, and we are still encountering the text based on our own definitions of things.

Postmodernism can be defined as “Incredulity to all metanarratives.” (Jean-Francois Lyotard, The Postmodern Condition)

Meaning, we have stories, narratives.  After being exposed to a number of them, we develop “social constructs“, concepts that these narratives have in common. And then we end up combining these social constructs into metanarratives, stories about stories. A metanarrative is “global or totalizing cultural narrative schema which orders and explains knowledge and experience.” (John Stephans) It could be the underlying unity of all fairy tales that leads us to a particular expectation and understanding of them.

For example, is a Postmodernist understanding of feminism would be about narratives, stories and explanations given to life events that lead one to a certain set of contstructs about men, women, and the relationship between them that is then built into a metanarrative about how men and women are supposed to relate. The suffragettes questioned this metanarrative, and thus noticed a new opportunity.

(For more detail, see this page from Adam D Jones’s blog.)

So while the classical academic tried to find the original intent of the text, the postmodern found this impossible and therefore doesn’t try. Instead, he looks to see what social constructs the text implies for the primary purpose of questioning it.

One can see a central theme of Judaism, or almost any religion, is to make a point of imparting a metanarrative. Questioning the metanarrative means never really encountering a religious narrative. You can’t sit on the outside peering in and truly experience a religion. Without “טַֽעֲמ֣וּ — taste”, one will never get to “וּ֭רְאוּ כִּי־ט֣וֹב ה֑ — see that G-d is good!” (Tehillim 34:9)

II

One popular Postmodern school is Deconstructionism. Rather than looking look for the meaning the text had to the author, but the meaning the text has to the reader. A hyper-correction to the opposite extreme. I think it’s the key to the Conservative movement’s approach to halakhah, once it left the classical academic approach of Historical School under the influence of Mordechai Kaplan’s concept of transvaluation. It literally asks the reader to recreate Judaism according to how he wants it to be.

One example of what I mean about Conservative Judaism: I once heard a Conservative rabbi present on the topic of the first chapter of Mesilas Yesharim. According to his presentation, Olam haBa (the World to Come) is something that can be experienced in the here and now, godliness is something we feel most when interacting with other people. And so, he takes words in which the Ramchal speaks of preparing in the “corridor” so that one may “enjoy the sweetness of the Divine Presence” in the World to Come, and makes it into an interpersonal imperative. Mesilas Yesharim stripped of classical Jewish theology (or the Ramchal’s riff on that theme in Derekh Hashem) and replaced with some Levinisian encounter with the other. And when he was done, there were people in the audience who were nodding as though he really captured the Ramchal for them!

Prof Marc Shapiro writes (Tradition 31:3, Spring 1997):

Furthermore, it is possible that an author is not aware of all the wisdom contained in his work. This idea is well established in literary circles, which stress that the most reasonable interpretation is not necessarily identical with the position of the author. Although the notion that an author understands his words better than everyone else would appear to be self-evident, and most intellectual historians still operate in this fashion, modern literary and philosophical thought argue that even the author does not recognize all that is found in his work, both in terms of background and motivation as well as content.

Professor Shapiro is taking the same step from classical academics to Deconstructionism that I laid out earlier. Since we can not know the full intent of the author, and in fact the author himself may not realize every implication of the idea he is describing, we instead look for the interpretation that is more reasonable to us. And I fear that if we accept the premise, that we are to take an academic approach — classical or postmodern — to the text, we will inevitably end up with something more resembling Conservative Judaism.

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.

Definitionally, talmud Torah is entering the stream. Not seeing a statement as a point to isolate in time and space, but as a being within current that runs through history from creation to redemption.

(This notion of process, that G-d “planted within us eternal life” [as the berakhah puts it], that the job of the Jewish People is to nurture that seedling until “truth arises from the ground”, is developed quite beautifully by the Qetzos haChoshen. Hopefully those quotes were enough to tempt you to read this earlier blog entry.)

III

Both the classical academic and the Deconstructionist share one thing in common — they see themselves as encountering the text. The idea is that the material is “other”, outside, to remain objectively studied. One looks for the context for which the text was written. The other looks for how the text can be understood with minimal assumptions about context.

Wissenschaft des Judentums, the “science” — i.e. academic study — “of Judaism”, isn’t inherently evil. It is quite possible, and in some circles quite common, to combine Orthodoxy and Wissenschaft. However, as implied at the end of the previous section, it is not to be confused with Talmud Torah as per the mitzvah.

The academic’s job is the objective study of the material. Trying to get to the truth by eliminating personal bias and hidden assumptions. Talmud Torah is about internalizing the lessons of the Torah. Rather than trying to be objective, the entire goal is subjectivity. If mesorah is a discussion down the generations, studying Torah is adding one’s voice to the conversation.

אמר רב יהודה אמר רב בשעה שנפטר משה רבינו לגן עדן אמר לו ליהושע שאל ממני כל ספיקות שיש לך אמר לו רבי כלום הנחתיך שעה אחת והלכתי למקום אחר לא כך כתבת בי (שמות לג) ומשרתו יהושע בן נון נער לא ימיש מתוך האהל מיד תשש כחו של יהושע ונשתכחו ממנו שלש מאות הלכות ונולדו לו שבע מאות ספיקות ועמדו כל ישראל להרגו אמר לו הקב”ה לומר לך אי אפשר לך וטורדן במלחמה שנאמר (יהושוע א) ויהי אחרי מות משה עבד ה’ ויאמר ה’ וגו’ במתניתין תנא אלף ושבע מאות קלין וחמורין וגזירות שוות ודקדוקי סופרים נשתכחו בימי אבלו של משה אמר רבי אבהו אעפ”כ החזירן עתניאל בן קנז מתוך פלפולו

Rav Yehudah said that Rav said: At the time that our teacher Moshe was released to gen eden, he said to Yehoshua, “Ask me about any uncertainty you may have.” [Yehoshua said, "Have I ever left your side, even for a moment? You have written about me, 'and his assistant, the young Yehoshua, did not stir from the ohel MO (Modern Orthodox)'eid.' " Immediately, Yehoshua's strength waned and he forgot 300 halakhos and 700 doubts were born to him. All of Israel got up to kill [Yehoshua]. Hashem said to him, “It is impossilbe for Me to [let Myself] tell you. Go, distract Israel with war.” As it says, “and it was, after Moshe, Hashem’s servant, died . . . God said, ‘Go and cross the Jordan…’ .” (Yehoshua 1)

- Temurah 16a

אמר רבי יוחנן שעורין ועונשין הלכה למשה מסיני עונשין מכתב כתיבי אלא הכי קאמר שיעורים של עונשין הלכה למשה מסיני תניא נמי הכי שיעורין של עונשין הלכה למשה מסיני אחרים אומרים בית דינו של יעבץ תיקנום והכתיב (ויקרא כז) אלה המצות שאין נביא רשאי לחדש דבר מעתה אלא שכחום וחזרו ויסדום

Rabbi Yochanan said: Measures and punishments are [all] laws given to Moshe from Sinai. “Punishments”? They are written [and thus wrong to classify them as orally given to Moshe]! Rather, this is what was said: The measures over which one is punished were given to Moshe from Sinai. Other say the court of Yaavetz established them. But doesn’t it say “These are the mitzvos” (Vayiqra 27) — that no prophet is worthy of adding anything from now on? Rather, they forgot them, and they went back and reestablished them.

- Yuma 80a

תנא הוא עתניאל הוא יעבץ

Mishna: Asniel is Yaavetz.

- Temurah (ibid)

Today, the 7th of Adar, not only marks the birth and death of Moshe. I want to point out another significant event. Until Moshe’s death, one could resolve halakhah by turning to Moshe to ask Hashem. However, we see in this gemara that the moment Moshe died, “lo bashamayim hi — it [the Torah] is not in heaven” took effect. Hashem couldn’t restore the lost Torah to Yehoshua, that’s not what Torah is supposed to be.

Osniel ben Qenaz did something new. He was the first rabbi in the sense of the halachic give-and-take we find in the mishnah, gemara, codes, commentaries, responsa and lomdus. The era of Rabbinic Judaism begins with Osniel, even as Yehoshua carries on the prophetic inspired approach to Torah.

Osniel prefigures another event in Jewish history. Note the phrase “שכחום וחזרו ויסדום — they forgot [the laws], and they went back and reestablished them.

דאמר רבי ירמיה ואיתימא רבי חייא בר אבא מנצפ”ך צופים אמרום ותיסברא והכתיב (ויקרא כז) אלה המצות שאין הנביא רשאי לחדש דבר מעתה אלא מה’ הואי, מידע לא הוה ידעין הי באמצע תיבה הי בסוף תיבה, ואתו צופים תקנינהו. -ואכתי, אלה המצות – שאין הנביא רשאי לחדש דבר מעתה! – אלא: שכחום וחזרו ויסדום

Rabbi Yirmiyah said and others believe it was Rav Chiya bar Abba: Menatzpa”kh [an acronym listing the letters that have final forms] were said by the seers. Is this logical?  But doesn’t it say “These are the mitzvos” (Vayiqra 27) — that no prophet is worthy of adding anything from now on? Rather, they are from Hashem, but they didn’t know which went in the middle of the word and which at the end of the word, and the seers came and fixed it. But again “These are the mitzvos” (Vayiqra 27) — that no prophet is worthy of adding anything from now on! Rather, they forgot them, and they went back and reestablished them.

- Shabbos 104a, Megillah 3a

And similarly the Ashuris script is described as restored,  as well as many other things forgotten during the Babylonian Exile. This same using reason to restore what was forgotten was a key part of the job of the Anshei Kenesses haGdolah. Theirs was not only an era after much Torah was forgotten during the pressures and assimilation of exile, but also the end of a prophetic alternative. The Great Assembly included the last of the prophets. One couldn’t “feel for” the right answer as reliably, and halachic reasoning came to the fore.

I fell in love with one of the central ideas in Professor Moshe Koppel’s book, “Metahalakhah”. There are two ways to learn a language: The native speaker doesn’t learn rules of grammar before using them, he just knows what “sounds right”. In contrast, an immigrant builds his sentences by using formalized rules, learning such terms as “past imperfect” and memorizing the forms that fit each category. R’ Koppel notes that the rules can never perfectly capture the full right vs wrong. A poet has to know when one can take license.

He argues that halakhah is similarly best transmitted by creating “native speakers”. It is only due to loss of our progressive loss of the Sinai culture with each generation that we need to rely on transmitting codified rules. In each of our cases, there was a major cultural shift.

With Moshe’s death, we not only lost Moshe’s level of prophecy. Note the words spoken by Yehoshua. “I have no doubts; I never left your side.” Overconfidence, in contrast to Moshe’s anavah. And therefore there was a shift from knowing by having a prophetic feel for what’s right to formal rules of derashah, of qal vachomer and gezeira shava.

Similarly the reestablishment of numerous laws by Anshei Keneses haGedolah when their prophecy was waning, and they needed to restore the Torah forgotten by our being mingled among the nations by Sancheirev.

The 7th of Adar therefore also represents Torah in our generation. We’re still reeling from the cultural dislocation caused by the Holocaust and the shift of Torah centers from Europe to Israel and the United States. From Sepharadim being forced out of century old communities. We’re still rebuilding. And again we see a focus on formal rules, on halachic guides.

However, there is a next step. Osniel was from the tribe of Yehudah and later became the first of the Judges, but he is not the one with whom Hashem established the kingship. It’s not until a leader emerges who is not only king, warrior and sage, but also the author of Tehillim — David.

Perhaps this is what it means when we say in the birkhas ahavah, the second blessing before the morning Shema, “lishmor vela’asos ulqayeim — to guard, to do, and to make permanent.” Shemirah, guarding, is a term used for prohibitions, mitzvos lo sa’asei. Asiyah obviously refers to duties, mitzvos asei. However, after watching to refrain from the prohibited and to do the mandatory, one has to allow them to make a permanent impact on one’s soul. This is qiyum hamitzvos –making the permanence of the mitzvos.

An Osniel can reestablish a mitzvah. Yasdum, literally — he gave them a foundation. But we still had Yehoshua giving us a building atop that foundation. We are now rebuilding our foundations. Now we need to Davidically stand upon them and sing.

(See also “Halachic Process – part I“.)

Last week I drew the conclusion from the Qetzos haChoshen that Torah is not Truth, it — combined with the Jewish People — is the process by which “Truth will bloom from the earth”. As I wrote then:

One wonders if this is related to the Maharal’s explanation of machloqes (disputes in halakhah). In an earlier entry, I described his position as follows:

The Maharal’s position is that “divrei E-lokim Chaim — the word of the ‘Living’ G-d” is simply too rich and too complex to exist in this world. Therefore they are mapped to oversimplified models, related to Hashem’s words the way a shadow is a flattened representation of the original. And thus, different people looking at the problem from different directions will get different shadows — even though they are all accurate representations of the same thing.

…

It is possible to say that history is the process of closing the gap between Truth in its full richness, and Torah as our ability to make it manifest. Or, as the mequbalim would say, “Lesheim yichud Qudshah berikh Hu uShechintei – For the sake of the unity of the Holy” — i.e. Remote — “One and His Presence” — i.e. as we Perceive her amongst us.

I want to make explicit what this says about the case of the Tanur shel Achnai. This tanur is a kind of oven where the parts are just fitted together. Is it a single oven and can become tamei, or not? (I discussed this a while back in a post titled “The Legislative Authority of Bas Qol“, a summary of the Encyclopedia Talmudica entry. It should be noted again here that there is a clear dispute as to whether this story describes the norm for revelation and halakhah, or if our accepting the Bas Qol authorization to hold like Beis Hillel is an example the norm. Here we will just avoid the question, and assume like most do that it is indicative of the norm.)

An Achna’i-style oven was made from pieces of pottery that were not cemented together. So, the question arose: Can it, like any other oven, become tamei? Or, is it like shards of pottery which can not? Rabbi Yehoshua and the other sages ruled stringently. Rabbi Yehoshua ruled leniently.

When the vote was taken, Rabbi Eliezer disputed the result. “If I am right, let the carob tree prove it.” The tree flew through the air. But the chakhamim replied that we don’t accept halachic rulings from trees. He similarly makes a stream flowed backwards, and even the walls of the beis medrash started to buckle. All three times, the miracles back Rabbi Eliezer, but the sages insist the law follows the majority. Rabbi Eliezer then appeals to heaven, and a bas qol declares, “Why are you disputing with R. Eliezar, for the Halakhah is according to him everywhere”. Rabbi Yehoshua rose to his feet and said, “It is not in Heaven.” (Devarim 30:12)

Several generations later, Rav Noson asked Eliyahu haNavi what happened in heaven during that story. He is told that G-d “smiled” and said, “Nitzchuni banai – My children have defeated me!”

In light of the idea we’re currently developing, we can say as follows. Rav Eliezer may have even been closer to Emes than the final ruling was. But the purpose of halakhah isn’t directly to obtain the Truth. It’s to make the Truth bloom within us and be manifest in the world. Thus, the essence is our working the process. And thus, by implementing it, “nitzchuni banai!”

Rav Moshe Feinstein discusses the halachic process and the role of poseiq in his introduction to Igros Mosheh. (The introduction itself deserves serious study.)  He writes about “ha’emes lehora’ah umichuyav lehoros kein af al pi im be’etzem galyah kelapei shemaya galya she’eino kein hapeirush – the true ruling, and one is obligated to teach accordingly, even if in essence is it revealed in heaven that this isn’t the correct eplanation!” The ideal is following the pesaq as according to the process.

As proof, Rav Moshe brings the gemara in Shabbos 130. We rule that only the milah itself overrules Shabbos. All preparation before the milah must be done in advance. Rabbi Eliezer ruled that anything necessary for the milah, even cutting wood to make the fire to make the knife, etc… could also be done on Shabbos. There was a town in Israel that followed Rabbi Eliezer. The gemara says that Hashem rewarded them for their tenacity for the mitzvah of milah. No one in that town died an early death. And when the Romans passed a law in Israel against milah, they exempted that one town from the law!

Who was right — this town, which was rewarded for their position, or we, who rule differently? If we understand that the essence of halakhah is that it and the Jewish People become one in a process to make truth bloom in this world, we can understand how the answer could be “both”.

Torah, like life, is about becoming, not being.

With this post, I am closing the series (for now) with three other thoughts that came up during the Avodah discussion, but aren’t part of my core thesis.

I

The concept of minhag hamaqom impacts two different things — actual minhagim and local pesaqim. I’m now addressing only the latter. A community can’t survive with too much variation, so we standardize local pesaq on many issues.To my mind, this means that a kehillah’s members are limited in the “angle” at which they look at the Torah. One is obligated to follow minhag hamaqom, and if one is going to be consistent, one is limited to derakhim that include that element in their “shadow”.Nowadays that tends to run in the reverse — people who have strong opinions one way or the other pick their kehillah. Someone chooses to be chassidish or to join Rabbi Soloveitchik’s followers at YU, I even heard of people leaving “Breuer’s” (!), and the pesaqim follow.

This also impacts the parameters of pesaq shopping. If one isn’t careful, one could be left with an inconsistent set of rulings. The image they live by doesn’t represent Devar H’ because they have bits of a shadow as seen from one lighting, and bits as seen from another — producing something that could never be cast by the actual object.

II

Chana Luntz (RtCL, in Avodah-speak) introduced the notion of bottom-up pesaq. In one post she writes:

In Yevamos 116b the gemora brings a mayse shehaya about a woman whose husband was bitten by a snake when he went out to the wheat harvest, and she came and testified to beis din that her husband had died, and they went and checked it out and indeed he had died, and at that point they legislated that a woman is believed if she comes to beis din and says her husband has died to allow her to remarry. And the Mishna there brings a machlokus between Beis Hillel and Beis Shammai regarding whether or not they believe a woman just in a case similar to the mase shehaya or not – for example if the woman and her husband went to midinas hayam and she testified about his death there, with Hillel saying no it must be similar to the mase shehaya and Beis Shamai saying not necessarily, and Beis Hillel eventually retracted and agreed to the position of Beis Shamai.

And in another:

… I find that while your argument that pessaq worked and sometimes may still work (that needs further analysis) partly bottom up, this in no way justifies the shoel looking for a particular outcome.

In fact, from another sugya, in Ketubot 23a, about a woman, and later two who says that she was imprisoned but remained tehorah, we see how it was preferable to manipulate the reality (making sure that the daughters of Mar Shemuel came to beit din while the captors were kept at a distance — a weird situation, where the captors would be willing to wait at a distance. Either the captors had been caught, or they were government forces confident that the women could not disappear under their watch, having numerous forces with them. The latter is indicated by Rashi s.v. Deatyyan liNharda’ah, where he explains that the women came to be redeemed).

AIUI (As I Understand It), “bottom-up” here is used to refer to two elements:

1- Building a pesaq based on case law, rather than starting from Divrei E-lokim Chaim and applying to the case.Here I would say it is “bottom up”, but it’s not instead of top-down. If we accept the Maharal’s notion that pesaq is the art of mapping DEC to a finite reality, then we will map things differently as our reality, knowledge of reality, and attitude toward reality change.

When the woman’s report that her husband was killed by a snake was proven to be true, Chazal realized they until then had a gap in their knowledge of how women behave, and whether the report would in general be reliable. The lenient ruling wasn’t a breach of applying divrei E-lokim Chaim downward as much as a shift in what that downward was understood to be.

So, I still think halakhah is more like Platonic Idealism than Aristotilian Realism. Truth becomes a set of instances, rather than one collects instances, finds a pattern, and constructs a truth. What changed is how one does the “becomes” as one knows more, not the direction of application.

2- Taking the human cost into account.

Personally, I wouldn’t consider this different in kind to “top down”. One factor that needs to be weighed, residing well within our “triangle”, is human cost. Mar Shemuel isn’t taken to task for applying strict ideals without accommodating the human reality as much as ignoring a whole subsection of those ideals. Whether it’s the textual rule of hefsed meruba (undo personal cost) or of not needing to spend more than 20% on an asei, there are many such formalizations. In the realm of aggadic values, it’s easy to see cases where the person’s sacrifice offsets any climbing up the spiritual ladder one might gain by being machmir. And of course, there could well be a pragmatic history that in this case we protected the person. It isn’t a concern from the bottom that we are imposing upwards, but part of the ideal the poseiq is trying to cast onto the situation.

III

I’m not sure what if anything we should assess about how conclusions were reached from the phrasing of the mishnah. (Another issue raised by RtCL.) This is a style of composition that values rememberability over everything, even precision (chesurei mechasra vehakhi ketani; or bameh devarim amurim, without the “meh‘ written in; etc… a mishnah can have elided words, or be discussing a particular unnamed situation to the exclusion of others). Why would we think that it reflects the actual process used to reach the conclusion?