The Legislative Authority of a Bas Qol

A brief summary of the Encyclopedia Talmudit entry on “Bas Qol”, the paragraph about its impact on halachah: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!”

However, in Eiruvin 13b, the bas qol is relied upon to give precedence to Beis Hillel. “These and those are the words of the living G-d, but the halachah is like BH.”

The two stories therefore appear to conflict on the question of the precedence of bas qol vs. normal halachic process.

1- Rav Nissim Gaon (Berachos 19a), opinion I: The bas qol said “halachah k’moso b’chol makom”. As a general rule, the halachah is like R’ Eliezer, but not here. The halachic conclusion does not contradict the bas qol, and it’s even possible that the BQ caused them to reach their decision.

2- Ibid, opinion II: The bas qol was only a test for the sages. Again, normally BQ would have halachic power.

3- Tosfos (Eiruvin 6b) I: The bas qol was only for the kavod of R’ Eliezer, who called down the opinion of Shamayim. BQ does NOT have halachic authority.

#3 is only possible (assuming that G-d doesn’t lie) by saying that R’ Eliezer and R’ Yehoshua were in an eilu va’eilu situation — both were right. Therefore, to show R’ Eliezer respect, G-d asserts that R Eliezer isn’t wrong even though the halachah is like R’ Yehoshua. In short, exactly the same point made by the BH vs BS story.

4- Tosfos II: There is a difference between whether the bas qol runs counter to metahalachah (normal halachic process), or in accordance with it. Bas qol can confirm a ruling, but not run counter to normal halachic process. Metahalachically, we follow BH because they are the majority. The BQ only confirms that fact.

(Why did it need confirmation? Probably because this is the first generation that the Sanhedrin was in exile, and because BS were generally considered the sharper group. Therefore there was a crisis in confidence in rejecting BS’s opinion without word from the Chamber of Hewn Wood.)

5- Or Samei’ach (Yesodei HaTorah 9:4): There is a distinction between whether the bas qol is clarifying a particular halachah and whether it speaks of a person’s ruling. In the first case, BQ is certainly not followed — metahalachah is the G-d-given means of creating new halachah. (cf
Temurah 16:1, where the prophet Yehoshua refuses to retrieve lost halachos via prophecy.) In the second, we do follow Beis Hillel, as per the BQ. (Although R’ Yehoshua disagreed about this use of bas qol as well.)

#5 appears to be nearly identical to #4, but with the added statement that given two true answers (speaking of one of two extant rulings), i.e. metahalachah allows one to follow either, BK can be followed. His conclusion is that even had BH and BS been of equal number, the halakhah would still be like BH.

In short, RNG gives authority to BQ to override halachic process, and the Achnai story’s bas qol is a special case for two different reasons. Tosafos and the OS agree that BQ has less authority than metahalachah, and possibly even no halachic say at all.

In either case it’s a question of whether one follows pre-existing rules for making halachic decisions despite supernatural evidence. It’s support for the notion of metahalachah, not for arbitrary leeway in making decisions.

FWIW, RYB Soloveitchik notes that “nitzchuni” does not mean “conquered”. Rather, by the normal rules of grammar it would be singular first person passive causitive of netzach (eternal). At the end of the Achnai story G-d is actually saying “My children have made Me [i.e. My Torah] eternal”. Which it would not be if we were limited to those decisions revealed at Sinai that weren’t lost.

Eilu vaEilu – part I

Before giving my own thoughts, I would like to discuss two recent articles on Eilu va’eilu:

As background: The gemara (Eiruvin 13b) speaks of a protracted debate between Batei Hillel and Shammai. Finally, a bas qol emerged and said “Eilu va’eilu divrei E-lokim Chaim, vehalakhah keBeis Hillel — these and those are the Words of the Living G-d (or: G-d of Life), but the law is like Beis Hillel.” (I already wrote on the role of this bas qol in defining law.) The question is whether this is meant literally, that G-d gave us multiple contadicting messages, and if so, how and why?

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 and the Seifer haQabbalah, and is based on statements like “Why were there so many debates between the schools of Hillel and Shammai [when there were so few between the mentors themselves? Because they did not properly serve their rabbis." Implied is that much was forgotten because of this lack of connection to the previous generation.

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".

Personally, I would be inclined to say that these need not contradict, and perhaps both types of debates occur. Except that according to the Rambam, there are no machloqesin in underived law; in his opinion this is one of the critical features of a halakhah leMosheh miSinai (a law given to Moshe since Sinai). The Rambam makes the flawlessness of the mesorah incontravertable. Only contructions are open to debate. So, while one may choose to embrace the idea that both occured, one must be aware that that's not shitas haRambam.

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. A typical source: In order to make sanhedrin you needed to be able to find 49 arguments that something is tamei, and 49 that the same something is tahor. G-d gave us all 98 arguments, and empowered the rabbinate to decide which is law.

Here, I don't see why one must assert they are different. After all, even the Ramban and his students don't give the poseiq carte blanche. He may have the power to define law, but there are limits to which definitions are valid. It would seem from the Ritva (see the quote below, in the discussion of the other article) that the process of finding choices fit the "accumulative" model; G-d could have given us all 98 arguments not directly, but implicitly for us to derive. The argument the poseiq actually derives and finds authoritative could then be correct because of the "constitutive" model, because that's man's role in the halachic process.

R' Michael Rosensweig's article gives a different perspective. (I'm skipping the first two sections, getting right to the subject of machloqes within halakhah. Otherwise the scope would be too broad for this format.)RMR cites the ma'aseh of "eilu va'eilu" (Eiruvin 13b) and the gemara (Chagiga 3b) describing learning as one rav insisting tamei, the other tahor to open a discussion of halakhic plurality.The Nesivos haMishpat holds that in reality one opinion is wrong, but the mitzvah of talmud Torah includes the studying and winnowing out of wrong opnions. RMR understands this to mean that studying these opinions is part of the encounter with devar Hashem (word of G-d).The Netziv defines two types of pesaq:

  • Hora'ah, dating back to the role of the kohein. From this perspective, both positions are the "substance" Torah, in a literal understanding of "eilu va'eilu".
  • Hakhra'ah ledoros (making a determination for generations), the logical analysis of the shofeit mechoqeiq (legislating judge). This produces the hilkheta gemirei (deduced conclusion), and as Moshe Rabbeinu was taught "everything that a student will in the future give hora'ah", Moshe was actually taught that one was more true than the other as he was told which will be the future hora'ah. Within this category, there are two subtypes:
    • Nitzotzos (term taken from Sanhedrin 34a), or netu'im (from Chagiga 3b), which maintain some or Torah (light of Torah), but of lesser quantity.
    • Those which are outright rejected.

RMR then shows that the Rama might conform to this model.

Rashi (Kesuvos 57a, "QM"L") seems to support a real 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 Amorairn 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.

The Ritva (on "eilu va'eilu", Eiruvin 13b) writes, "When Moshe ascended to receive the Torah, it was demonstrated to him that every matter was subject to forty-nine lenient and forty-nine stringent approaches. When he queried about this, God responded that the scholars of each generation were given the authority to decide among these perspectives in order to establish the normative halakha."

The Ritva's phrasing, that matters being subject to 98 different approaches rather than Moshe being given 98 interpretations seems to me to be what R' Moshe Halbertal called the "accumulative" approach, even though he then continues to weave it with the "constitutive" one. But to return to R' Rosensweig...

The Maharshal writes that since each soul was at Har Sinai, each soul presents its perspective on emes. The soul doesn't simply passively report the emes. The Maharal similarly peaks of a the Ideal pesaq as manifest in heaven, and how man in the "real world" can only approximate that Ideal. (Very Platonic, to my ear.) The reason for plurality is because the actual truth can't be fully captured within this world.

This last opinion reminds me of R' Moshe Koppel's position in "Metahalakhah". He argues that halakhah is best transmitted the same way grammar is: the native speaker's feel for right and wrong. It's only due to loss of our status as "native speakers", our progressive lost of the Sinai culture, that we need to codify rules. And just like codified rules of grammer, the rules only approximate the reality they're trying to describe. The Maharal says that this world can't capture halakhic truth, whereas RMK is arguing that even of that which was given at Sinai, it could not fit a rule set.

RMR opens section IV with an explicit statement of the "constitutive" perspective. Since halachic truth includes plural views, the poseiq is defining which truth is law. The fact that the other is true doesn't make is any more acceptable as a fall-back position legally.

According to the Maharshal and the Arukh haShulchan, the need for pesaq is "so that it will not be like there are two Toros". Since either position is truth, it's not a need to determine Torah, but that of communal unity. The zaqein mamrei (a rebellious elder who refuses to bring his ruling in line with the Sanhedrin's) is punished because the effects of his actions ("like two Toros", ruining the entire concept of halachic process) are so damaging -- not because he's promoting falsehood.

The Ran and the Chinukh apply lo sasur (do not disagree) to modern rejections of rabbinic conclusions, not only the zaqein mamrei in the Sanhedrin. Maharam ibn Habib (aside: should I recognize this name?) applies a ZM parallel to any judge, and "we do not divide money according to the majority" (ie rulings are all or nothing, you don't make someone repay proportionally according to the percentages of votes among the judges) requires him to acquiesce to the majority.

[In part II I will iy"H discuss my own thoughts and opinions on the subject.]

Appropriate and Inappropriate Kulos, Good Chumros and Bad

It is this rupture in the traditional religious sensibilities [caused by the Holocaust and the subsequent displacement in geographic location] that underlies much of the transformation of contemporary Orthodoxy. Zealous to continue traditional Judaism unimpaired, religious Jews seek to ground their new emerging spirituality less on a now unattainable intimacy with Him, than on an intimacy with His Will, avidly eliciting Its intricate demands and saturating their daily lives with Its exactions. Having lost the touch of His presence, they seek now solace in the pressure of His yoke.

- R’ Dr Haym Solovetichik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy” Tradition, Vol. 28, No. 4 (Summer 1994)

This is how R’ Dr Soloveitchik concludes an essay about a shift in the relationship to halakhah caused by the Holocaust. Before the war, he writes, halakhah contained a much stronger mimetic component, a notion of halakhah-as-lifestyle, seeing “what the people do”. Now, with the rupture in culture caused by the war and subsequent relocations, we rely less on mimeticism and more on textualism, referring back to the formal sources of halakhah, halakhah as a legal code.

Since the publication of that essay, they caused a bit of a backlash. By giving a motivation to the rise of chumros in post-WWII orthodox, he unintentionally gave a tool to people for implementing the equal and opposite reaction. Just one example:

It is true that in pre-war Lithuania, it was common for married women not to cover their hair. In the hands of some, this becomes “mimetic tradition”, following the culture of the observant community, and therefore an argument in favor of preserving that norm.

Interestingly, many of the same people argue in favor of ordaining women on textual grounds: Since semichah today has no real halachic significance, there is no reason that ordination be limited to men. Anyone with the skill to learn how to advise others ought be declared competent for “Yoreh Yoreh”. On the one hand, finding leniency despite the sources; on the other, finding it despite the leniency causing drastic change in Jewish lifestyle.

As I hope the reader can tell, I find both approaches problematic: Both the search for chumros and that for kulos.

I think both problems emerged from something overlooked in the essay. The fall of mimeticism was much earlier, back during the Enlightenment and its aftermath. The culture was lost, and Orthodoxy split into movements, each group seeking a rationale and motivation to continue keeping to the Sinaitic Covenant. What happened more recently, then, was not the loss of a mimetic tradition, a living Torah culture, but the loss of this ideological alternative. Whereas in the 19th century communities were built on ideologies, today all that is watered down. I discuss this two-stage shift in my entry “The Fall of Mimeticism and Forks in the Hashkafic Road“.

(There was one special case, I didn’t discuss then, Hungarian Orthodoxy. The Chasam Sofer took the ruling banning new grain, “Chadash assur min haTorah — the new is prohibited by the Torah”, and turned it into a motto for tenaciously holding on not only to the halakhah, but the culture as it existed at the time the ghetto fell. They therefore rejected all of these up-and-coming Orthodox movements, writing polemics against both Chassidus and Mussar. However, it too was an innovation. There is a fundamental difference between unselfconsciously following a living and changing culture and deciding to set out to preserve a given snapshot of it.)

What I would seek is not a return to the pre-emancipation mimetic Orthodoxy, but the movements of the late 18th and 19th centuries. They provided not only a communal structure that supported observing halakhah, but also the tools to engage one’s mind and heart. That was my focus in the earlier entry; now I want to look at the halachic implications.

The rise of the “Chumrah of the Month Club” is a product of a number of factors. Today’s greater affluence and free time give more opportunity to follow new practices. However, one factor we ought to seek to change is living without a well-articulated basis.

Disconnecting our ideological basis from our mitzvah observance contributes to chumros in two ways:

First, it leads to a religious vacuum. Someone who hungers for a connection to the Creator will seek to do more of the one thing he associates with that connection — more mitzvos ma’asiyos, more actions. This doesn’t really address his need. Rare is the observant Jew whose religious need is caused by not spending enough of his day engaged in religious action. He is really seeking a connection between his soul and that action, but is unaware of the gap. So, misdiagnosed, he instead chooses more action. Which leaves him still hungering, so as soon as the newness wears off, he seeks the next practice and the next one…

Second, without being grounded in an ideology, our practice lacks a value system by which we can assess various positions. The “Brisker Chumrah” has gained such currency in the current generation. In it, one avoids a machloqes, a disagreement in halakhah, by “being chosheish (concerned) for” both opinions. In Brisker thought, halakhah is only based on halakhah. This is a stark contrast from innovative practices based on ideology. The Chassid who started wearing a gartel rather than relying on a belt when davening did so because the separation between upper and lower was more fundamental to his worldview than that of his father. The Mussarnik is more likely to accept a chumrah of avoiding something not required by the letter of the law, not to do something not really mandatory. But the same rationale applies: Every new chumrah adopted was done so because the effort was deemed to be outweighed by the payoff, the chance to further inculcate a value into oneself.

To me it would seem to be the only appropriate grounds for their adoption. Going lifnim mishuras hadin, beyond the line of the law, can only be based on having a yardstick and knowing what is beyond the line, and which not.

I’m reminded of one of Stephen Covey’s “7 Habits”. Habit #2: Begin with the end in mind. As he puts it, “Before you climb a ladder, make sure it is leaning against the right wall.” Start with deciding where you want to end up, and decide your actions based on where they fit in achieving that goal. Without a definition of your own personal role in avodas Hashem (serving G-d), there is little way to make choices about appropriate action.

Covey’s advice on how to reconnect your day-to-day activities with your greater goals gives us an interesting variation on the theme of contemplating the day of one’s death:

In your mind’s eye, see yourself going to the funeral of a loved one. Picture yourself driving to the funeral parlor or chapel, parking the car, and getting out. As you walk inside the building, you notice the flowers, the soft organ music. You see the faces of friends and family you pass along the way. You feel the shared sorrow of losing, the joy of having known, that radiates from the hearts of the people there.As you walk down to the front of the room and look inside the casket, you suddenly come face to face with yourself. This is your funeral, three years from today. All these people have come to honor you, to express feelings of love and appreciation for your life.

As you take a seat and wait for the services to begin, you look at the program in your hand. There are to be four speakers. The first is from your family, immediate and also extended – children, brothers, sisters, nephews, nieces, aunts, uncles, cousins, and grandparents who have come from all over the country to attend. The second speaker is one of your friends, someone who can give a sense of what you were as a person. The third speaker is from your work or profession. And the fourth is from your church or some community organization where you’ve been involved in service.

Now think deeply. What would you like each of these speakers to say about you and your life? What kind of husband, wife, father, or mother would you like their words to reflect? What kind of son or daughter or cousin? What kind of friend? What kind of working associate?

What character would you like them to have seen in you? What contributions, what achievements would you want them to remember? Look carefully at the people around you. What difference would you like to have made in their lives?

Midrashei Halakhah

There are two kinds of medrash (which should technically be called “midrash” to be grammatically correct). Midrashei Aggada are non-halakhic statements, those of mussar, Jewish thought, Qabbalah, and the like. The thought is usually connected to the text through details added to the narrative, or other stories intended as metaphor (whether in addition to being historical or not).I want to discuss here Midrashei Halakhah, which derive laws from the text. Most often, through the rules of derashah. Hillel made a science of derashah, and reduced it to 7 rules. R’ Yishma’el and R’ Aqiva, broke down those rules into subcategories. Because of the differences in approach, R’ Yishma’el’s exposition yeilded 13 laws, R’ Aqiva’s, 19.
Derashah could be understood in 2 ways: Either as applied to the semantics, the meaning of the clauses of the verses, or as applied to the syntax — that particular words have coded meaning.R’ Yishma’el’s school believed the former. “The Torah is written in human idiom”. Therefore, derashos apply to the meaning of clauses, not individual word choice — if it’s normal idiom or metaphoric description. This also lead R’ Yishmael to view derashah as a means of getting what the Torah is telling us, such as “shomei’ah ani” (I hear).R’ Aqiva learned “mounds of halakhos from the tags and serrifs on the letters”. He understood derashah to be about the text itself. Doubled words (e.g. “aseir ta’aseir — you shall tithe” is also taken to mean “aseir bishvil sheti’asheir — tithe so that you may become wealthy”), or the presence of limiting or inclusive keywords (akh – except; raq – only) are grounds for derashah. R’ Aqiva’s language is more one of finding truths, “yachol”, it could be that… Being less related to the plain meaning of the verse, he understands a suggested derashah as less compelling than R’ Yishma’el would.

By their day, these rules of derashah were descriptive only. While Hillel and Shammai may have had the power to make new derashos (there is debate on this point), R’s Aqiva and Yishma’el generation certainly didn’t beyond qal vachomer (deriving from the less obvious case to the more).

Also, none of this necessarily means they invented the rules of derashah or even disagreed over fundamentals. The debate between the two schools of medrash were not over the creation of new laws of derashah. For that matter, it is clear that Hillel’s laws were known to the previous heads of the Sanhedrin, the Benei Beseira. The discussion is over taxonomy; how to understand derashah as being the product of a few clear rules. They could well have simply divided the existing derashos into existing categories, and categorized differently. In fact, we find R’ Yishma’el using ribui umi’ut (a principle of R’ Aqiva’s list) and R’ Aqiva using kelal uperat.

The two series of medrashei halakhah are:

R’ Aqiva’s schoolR’ Yishma’el’s school
ShemosMekhilta deRabbi Shim’on bar YochaiMekhilta (a/k/a Mekhilta deRabbi Yeshima’el).
VayiqraSifra (a/k/a Toras Kohanim and Sifra deVei Rav)Sifrei (lost sometime during the late geonim or early rishonim)
BamidbarSifrei Zutah (“Small Sifrei”)Sifrei (the remaining portion)
DevarimSifreiMekhilta Devarim (largely lost; some portions were recovered from citations including some only found in the Cairo genizah)

The texts seem to have been redacted in the 3rd and 4th centuries.

The traditional publication of the medrashei halakhah includes four books, mixing the two schools: Mekhilta, Sifra, Sifrei (on Bamidbar) and Sifrei (on Devarim). In fact, the two Sifrei’s often get published as a single volume, despite the difference in style that makes their different origin obvious (once you know to look for it).

A more complete publication would have all seven books, typically published in the order: Mekhilta, Mehilta deR’ Shim’on bar Yochai, Sifra, Sifrei (Bamidbar), Sifrei Zuta, Sifrei (Devarim), Mekhilta Devarim.

The word “mekhilta” is Aramaic, and means “measure” or “rule”. The words “sifra” and “sifrei” are conjugations of the root /spr/, meaning “book” or “writing a book”. Sometimes the word “sifrei” is used to refer to all 4 books.

After Rabbi Yehudah haNasi compiled the Mishnah, organizing halakhah by topic rather than verse, the notion of composing Medrashei Halakhah fell out of use. However, as he was from R’ Aqiva’s school (a student of R’ Aqiva’s student, R’ Meir), that school ended up making greater impact on the final law.

Types of Halachic Rulings

The following taxonomy of kinds of halachic ruling was culled from the Rambam, Hilkhos Mamrim ch. 2, and includes thoughts learned at a shi’ur given by R’ Yonasan Sachs (of RIETS and the Agudath Israel of Passaic).
(I posted an earlier version on soc.culture.jewish, and from there made it into the group’s FAQ. I later repeated it on Avodah, and the following reflects comments and corrections made there.)
  1. Minhag. Custom. Custom, although not really part of halakhah, can change. Minhag is any act that the masses, on their own, accept. According to the Rambam, to qualify as a minhag the practice must then ratified by the rabbinate. Any minhag that is against actual halakhah, is called a minhag ta’os, a mistaken minhag. Any that is based on a misunderstanding is a minhag shetus, a foolish custom. These two subtypes should not be followed. Any nearly universal minhag is called a minhag Yisrael, and has most of the stringencies of law. Yarmulka and ma’ariv services are two examples of a minhag Yisrael.
  2. Din deRabanan. A rabbinic law. These are set up by the rabbinate, instead of the masses, in order to preserve the spirit of the law. For example, Purim and Chanukah. There are 7 new commandments that are entirely rabbinic. According to the Rambam, who only counts biblical mitzvos amongst the 613, this means there are actually 620 mitzvos altogether.
  3. Gezeira deRabanan. A rabbinic “fence”. These are enacted to prevent a common cause for breaking the act of the law. For example, one may not place food directly on a fire before Shabbos in order to keep it heated during Shabbos. This is a fence around the law against cooking on Shabbos. To prevent the gezeira from being violated, a metal cover, called a “blech” in Yiddish, is placed on the stove top before Shabbos with the flame (turned to a low setting) under one section and the pot with food placed on the blech. This blech serves as a fence, allowing heating of the food without any danger of violating the law. Note that a “gezeira dirabanan” becomes binding only if the community accepts it.According to the Rambam, a gezeira cannot be overturned. However, a gezeirah where the law’s purpose is included in the legislation is implicitly conditional on the purpose. The problem is in knowing when the purpose is given in the quoted gezeirah, and when the gemara provides a motivation on its own, after quoting the gezeirah. For example, meat must be salted within three days of slaughter, or the prohibited blood will be too soaked into the meat to be retrieved. What about the contemporary situation, where meat is generally frozen solid? Some rule that since the reason is given in the legislation, and the reason doesn’t apply, neither does the time limit. Others rule stringently, presumably because they do not believe the reasoning about the blood being soaked into the meat was part of the legislation as initially codified.

    According to the Tif’eres Yisrael (Ediyos 1), there are actually two sub-categories:

    1. Siyag. Fence (Hebrew; “gezeirah” is Aramaic). Something that will lead to a future violation to do an error in understanding the law. Such as the ban on mixing poultry and milk, lest people become lenient in mixing meat and milk.
    2. Cheshash. Concern. Cases where the threat of violation is in the current situation, because one is in a circumstance where habit taking over or other accident is likely.

    The Tif’eres Yisrael says that a cheshash can be deemed inapplicable if the norms change such that the threat no longer exists. It does not require a beis din that is greater in number or wisdom as the law is not lifted, just that the current situation is deemed to be outside the limits the law addressed.

  4. Asmachta. Mnemonic. The Raavad (on Mamrim 2) considers laws backed by a mnemonic in the Torah are in a different category than other rabbinic laws. He writes that Hashem wrote these asmachtos as a way to suggest laws to us to enact as needed.
  5. Divrei Qabbalah. The words that were received; i.e. laws enacted by a beis din like the Great Assembly that included nevi’im (prophets). Many consider these rabbinic laws one step closer to Torahitic law than most others, since the law was ratified by consulting with Hashem Himself. This is like the Raavad’s concept of asmachta, but more so — not only suggested by Hashem to be used as needed, but we’re told that the situation justified it.Those who believe this is a distinct category would include Purim as divrei Soferim rather than usual rabbinic law. Some achronim rule that the obligation for women must hear megillah and the other mitzvos of Purim is rabbinic but for men it’s divrei qabbalah. Thus, their obligation is lesser.
  6. Pesaq. A rabbinic ruling. This ruling addresses a the questionable area of some law or custom. A pesaq that is not prima facie in violation of accepted halakhah can only be overruled by another body that is both larger in number (or perhaps number of students), and greater in “chokhmah”. (The ability to know how to use the facts. Not more knowledgeable book-wise, but more steeped in the Torah weltanschauung.)
  7. Derashah. A law derived by hermaneutics. Some hold that derashah only serves as support for already known laws, and therefore are tools in pesaq. However others, including the Rambam, see them as constructive, a means for discovering new Torahitic laws. This appears to be supported by a medrash on Rus, in which Boaz is credited as being the first to rule that “Moavi” means males from Moav in particular.
  8. A last category has only two related examples. Torah law mandates a shevus, a law to rest on Shabbos. It also requires resting from some of the melachos, constructive work activities, even on chol hamo’ed. However, Hashem left it up to man to decide the parameters of these forms of rest.

The distinction between the second and third categories is subtle. In order to be a din (or issur, or melakhah) deRabanan, the prohibited action is one that is similar in purpose to the permitted one.

In contrast, a gezeira does not even require an action. In the example I gave, it was inaction, leaving the pot where it is, that is prohibited. Second, the category includes things that are similar in means to the prohibited act, and will therefore cause confusion about what is and what isn’t okay; and things which will allow people to be caught up in habit, and forget about the prohibition. Only a gezeira may defy an actual Divine law (although a pesaq will often define one), and even so only under specific circumstances. All of the following must be satisfied:

  • The law being protected is more stringent than the one being violated. This determination isn’t easy.
  • The law is being violated only through inaction. No one is being told to actively violate G-d’s commandment.
  • According to the Ta”z, the law being violated will still be applicable in most situations. It still must exist in some form. (Not every acharon agrees with this requirement.)

In another way, a gezeira is less powerful than a normal rabbinic law in that it cannot be compounded. One may not make a “fence” for the express purpose of protecting another “fence”.

A law is considered accepted if it becomes common practice. Any din or gezeira that does not get accepted by the masses in the short run, does not become binding in the long run. Similarly, there are rules for pesaq, but they are violated if the masses choose to follows some other rabbinic body’s pesaq. Notice, however, that this need for acceptance is only in the short run, to enact the law. Once a law is accepted, it may only be overruled by pesaq. It does not cease to exist just because it faded out of practice.

Chidush and Shinui

Rabbi Yochanan ben Beroka and Rabbi Elazar ben Chisma went to Peki’in to visit their rebbe, Rabbi Yehoshua. Rabbi Yehoshua asked them to repeat something they had learned in the beis medrash since their last encounter. They answered, “We are your students, and we drink of your waters.” Rabbi Yehoshua replied, “Ee efshar leveis hamedrash belo chidush — It is impossible to have a beis medrash where nothing new is taught.” (Chagigah 3a)

Innovation is a critical element of Torah study. In Ish haHalakhah (pg. 73), Rav JB Soloveitchik explains that the recipient of the mesorah is not passive; rather, he receives while acting in the image (as it were) of the Creator of Worlds.

Obviously, though, this isn’t a carte blanche. Not all creative intepretations the Torah could possibly be equally valid. Rav Soloveitchik distinguishes between chidush, the positive process of innovation, with shinui, inappropriate changes to halakhah. But he writes in the halachic domain, where this conclusion is obvious; what is a legal system without a well-defined legislative process?

A month ago (“Ikkarei Emunah”, end) , we looked at the list of beliefs listed in Avos 3:11 (or 15 in some editions that Rav Elazar haModi’in says could keep one from having a share in the World to Come. Among them is “megaleh panim baTorah shelo kehalakhah — revealing perspectives in the Torah which are not according to halachah”. One might think this refers to halachic statements, however, it could also mean aggadic statements that somehow violate the halakhah. In fact, the Tosafos Yom Tov (ad loc) gives “veTimna haysah pilegesh — and Timna was a concubine” as an example, the textbook case of a verse that not only has no halachic impact, but also its philosophical or ethical content is unknown.

The Tosafos Yom Tov is clearly applying the concept R’ Soloveitchik calls “shinui” well beyond law, in the realm of parshanut, explaining the text.

So, given that this distinction between chidush and shinui goes beyond violating the legal process, how do we determine what it is?

Let’s first make a Kantian distinction between analytic judgements and synthetic ones. Analytic judgements are tautologically true, true by definition, or inherently false because they’re paradoxical. Synthetic judgements are ones that, as a matter of fact, happen to correspond to reality.Examples:

  • Analytic: All black houses are black.
  • Synthetic: My house is not black.

Analytic judgments must be true. They are neither mesorah, nor philosophy, nor science. The gemara sometimes questions a source text by asking “Lamah li qera, sevarah hi — Why do I need a verse, it is logical!” If a statement logically derives only from definitions provided by the Torah, it too is Torah. Such judgments must be chidush.

Therefore we can define mesorah as follows: The body of knowledge revealed at Sinai, and all further analytic judgments, including sevarah (logic, inductive and deductive reasoning) and derashah (exegesis), that are based entirely upon that knowledge.

Halakhah is a different thing, as it includes rules for legislation and therefore laws and decisions that are enacted rabbinically. Chiddush, the growth of the body of mesorah through identification of its implications, is only part of the evolution of halakhah. However, halakhah therefore also excludes parts of mesorah. In particular rulings that are well grounded in the Torah but run against rabbinic decision. For example, the overwhelming majority of Beis Shammai’s rulings. Shinui in halakhah is therefore straightforward: it’s a violation of any of the halakhos about how to determine halakhah. For example (caveats and subtleties glossed over): rescinding established precedent, following a rejected minority opinion, etc…

Synthetic judgments depend on research, on accumulating new facts. One can only know if “My house is not black” by finding out about my house. Here, the information is capable of being Torah, or non-Torah, depending on the kind of information it adds — is one accumulating a fact about the Torah that was until now unnoticed or forgotten, or is one making a scientific or sociological observation?

Only in the case of non-Torah synthetic judgements one can ask whether or not it qualifies as shinui, manipulation of Torah into something it isn’t. The question becomes what is the mesorah’s position on the matter? Is there one, or a spectrum of them? Are you taking one side of a debate? Can your statement be shown to be implied or supported by a mesoretic concept? Are you voicing an opinion in the face of mesoretic silence? Or, are you proposing a new solution to a question the Torah addresses in order to accomodate something you believe to be true for other reasons?

We can in principle encounter four situations:

1- The mesorah, either in explicitly relayed statement, or in another statement that one can find implied our conclusion. In other words, the statement is a chidush, an expansion of a Torah idea — either because it is an implication, or resolves what would otherwise be a problem.

2- The mesorah is total silent on the point. We have not been able to resolve any position. Then such new ideas can not be “shinui”, since there is no old position to have been changed.

3- Multiple positions coexist in an “eilu va’eilu”, a plurality of Torah approaches. In which case, the position is supportable from the Torah, as the opinion preexisted the novellum. It’s not shinui, so it would be valid to use this new idea to choose one side of the debate over the other.

4- The mesorah relays a single range of opinions, and this new idea is neither within it, nor implied by some other point similarly relayed. This case, and this case alone would be problematic in my model.

Since shinui depends on trying to accomodate information other than Torah, one of the key areas in which it comes up in an aggadic context would be in questions of science and Torah. Here we often face a dilemma. We have two sources of truth. They therefore must agree — or one of them be assumed to be incorrect.The Rambam’s position in this regard, the centrality he gives Aristotilian physics, has gotten much criticism. Not only from the anti-Maimonidians of the period of the rishonim, but even such authorities who embraced science as the Vilna Gaon and Rav Samson Raphael Hirsch take issue. So, perhaps we can look to his shitah with an awareness that the Rambam defines the more liberal edge on this in our mesorah.The more famous quote in the Rambam is where he explains why he rejects Aristotle’s argument that the universe could not have had a beginning in time and but yet asserts the incorporeality of G-d despite the literal text (e.g. “the Mighty Hand”, “for the Hand is on the throne of G-d”, etc…) seemingly asserting He does have a body:

For two reasons, however, we have not done so, and have not accepted the Eternity of the Universe. First, the … the Eternity of the Universe has not been proved, and there is no need to force interpretations on scripture to make it fit one position, as long as the other position is defendable.

Secondly, our belief in the Incorporeality of God is not contrary to any of the fundamental principles of our religion, and it is not contrary to the words of any prophet. … On the contrary, Scripture itself teaches the Incorporeality of God. …

But if we assume that the Universe has the present form as the result of necessity, there would be occasion for the above questions. And these could only be answered in an objectionable way, implying denial and nullification of all the simple statements of the Torah, which no enlightened person doubts are meant as they simply are. … If … Aristotle had a proof for his theory, the whole teaching of Scripture would be rejected, and we should be forced to other opinions. I have thus shown that all depends on this question. Note it. (Guide, II:25)

The Rambam has two requirements:
1- that the philosophy (which included “natural philosophy”, science, in his day) be compelling, and
2- that it not run counter to the words of the prophets, the fundamentals of our religion, and what no Torah enlightened person doubts; in other words, does not run counter to mesorah. Unfortunately, the Rambam discusses the point in the context of claims that would defy basic beliefs. So his description of the second criterion is not as forceful as it could be. However, the reference to the Torah-enlightened does disambiguate.

Secondly, the Rambam’s insistence that he was not innovating in contradiction to earlier sages (shinui) forms a core part of the introduction to the Moreh.

… I adjure any reader of my book, in the name of the Most High, not to add any explanation even to a single word: nor to explain to another any portion of it except such passages as have been fully treated of by previous theological authorities: he must not teach others anything that he has learnt from my work alone, and that has not been hitherto discussed by any of our authorities. The reader must, moreover, beware of raising objections to any of my statements, because it is very probable that he may understand my words to mean the exact opposite to what I intended to say. He will injure me, while I endeavoured to benefit him.” He will requite me evil for good.” Let the reader make a careful study of this work; and if his doubt be removed on even one point, let him praise his Maker and rest contented with the knowledge he has acquired. But if he derive from it no benefit whatever, he may consider the book as if it had never been written. Should he notice any opinions with which he does not agree, let him endeavour to find a suitable explanation, even if it seem far-fetched, in order that he may judge me charitably. Such a duty we owe to every one. We owe it especially to our scholars and theologians, who endeavour to teach us what is the truth according to the best of their ability. I feel assured that those of my readers who have not studied philosophy, will still derive profit from many a chapter. But the thinker whose studies have brought him into collision with religion, will, as I have already mentioned, derive much benefit from every chapter. How greatly will he rejoice! How agreeably will my words strike his ears! Those, however, whose minds are confused with false notions and perverse methods, who regard their misleading studies as sciences, and imagine themselves philosophers, though they have no knowledge that could truly be termed science, will object to many chapters, and will find in them many insuperable difficulties, because they do not understand their meaning, and because I expose therein the absurdity of their perverse notions, which constitute their riches and peculiar treasure, “stored up for their ruin”….

He insists that his words will only be understood if explained in accordance with mesorah. It would seem the Rambam did not set out to give alternate explanations to those offered by Chazal. Aside from that, he feels the need to do so would only be by someone who thinks they know science and philosophy but are “confused with false notions and perverse methods”.

Rav Kook letter 134, addressed to Moshe Zeidel (written 1908), addresses the question of evolution. Rav Kook comes out positively, showing parallels between the progressive unfolding of life that evolution entails with the Jewish worldview. In that letter he writes (tr. Meir Shinnar):

My opinion is, that all whose opinions are straight should know, that even though there is no truth demonstrated in all these new investigations, still we are under no obligation to contradict them outright and to stand against them, because it is not at all the main point of Torah (ikar shel Torah) to tell us simple facts and events that happened.

Later he writes:

And in general, this is a great principle in the battle of opinions, that any opinion that comes to contradict something from the Torah, we have to in the beginning not to contradict it, but to build the palace of Torah above it, and that way we are elevated by it, and through this elevation the opinions are exposed, and later, when we are not pressed by anything, we can with a full and confident heart to fight against it as well. There are several examples that prove the point, but it it is difficult for me to elaborate, and for a wise heart like you the short form is suuficient, inorder to know how to worhip Hashem (lidgol bshem Hashem) above all the winds that blow, and to use everything for our true good, that is also the good of all.

Rav Kook would seem to advocate accepting scientific data even when it requires building our edifice of Torah around it.

However, where does he say that we are to rebuild, rather than to build? In other words, shinui rather than chidush?

Why would Rav Kook be asking us to rebuild Torah around something in which “no truth [is] demonstrated”? Clearly the letter is not about truth, but education and communication. Rav Kook is telling us not to bother with confrontation. The essence is the essence, the lesson of the history. This letter is strategic advice, not epistomological statement. It does not pay to distract people from that to debate their deeply held positions about history.

The basic problem with shinui, adapting the Torah to another discipline is one of epistomology. Isn’t emunah sheleimah taking the Torah as fact, part of the reality that needs explaining, rather than one of the explanations?The alternative is essentially taking a pagan, “god of the gaps” approach to religion; that religion exists to explain the incomprehensible, and therefore only exists in the gaps in our understanding. As those gaps close, the room for paganism deminishes.Thor was a “god of the gaps”. Lightining wasn’t understood, and it was powerful and scarey. So, they proposed a god to explain it, and thus safety comes from keeping him happy and understanding it boils down to reading his myth and moods. Once they felt they understood lightening scientifically, they could do away with Thor.

It the same attitude as “There is nothing left to do but pray”. Aren’t we supposed to pray WHILE there are still other things left to do? Doesn’t our belief in a scientific resolution coexist with our belief in a theistic one?

The idea that the mesorah includes beliefs, even as non-essentials (such as history, or aggadic beliefs which have no halachic impact), which are simply stopgaps until science gives us a “real answer” is a “god of the gaps” approach to religion.

This epistomology becomes really unsupportable when extended to its logical conclusion. The theory that Canaan had so few residents that there was no way 3 million Jews would have had to fight to conquer the country — they would have overwhelmed it by sheer numbers. The typical biblical archeologist similarly questions the numbers cited in the Exodus altogether. Once one permits reinterpretations to accomodate scientific consensus, one removed the basis for belief even in the revelation in Sinai. After all, as most Conservative Rabbis would argue, couldn’t one preserve the “inner truth” of the Exodus and the Siniaitic Revelation without embracing the historicity of the events themselves? How can one explain accepting the methodology when it would mean innovating new understandings of the flood, and yet reject the same method’s conclusions when it comes to an essential belief?

This returns to a theme I raised a while back. Neither side of the dispute as it is playing out now is embracing all their sources of truth equally. If questions of science and religion are to be resolved, it’s only by taking the known facts of each as known facts, and only accepting theories that really accomodate both. If that can’t be done, we are forced to set the question aside until we can — not accept a poor answer. See Trends in Resolving Torah and Science.

What is Judaism?

Since Mosheh received the Torah in the Sinai, the Torah has evolved. It evolved according to the rules set out in the Torah itself, but still, halakhah has grown, courts of greater number and wisdom have overruled the precedent of inferior courts, etc… As the famous story goes (Menachos 29b):

When Mosheh ascended to the Heavens, he found Haqadosh barukh Hu (HQBH) sitting and tying crowns onto the letters [in the Torah]. He said before Him, “Ribono shel olam — Master of the universe! What could compel You (lit: who holds back Your ‘hand’) [to do this]?”
He answered him, “There will be a man in the future after many generations and Aqiva ben Yosef will be his name. In the future, he will clarify every point and mounds of law [from them].”
He said before Him, “Ribbono shel olam, show him to me.”
He told him, “Turn around.”
He turned around and went and sat at the back of eight benches [at Rabbi Aqiva's academy]. When Moshe had no idea what they were discussing, he became distressed until the students asked, “Rebbe, from where do you learn that?”
Rebbe Akiva answered them, “It is a halakhah that goes back to Moshe from Sinai.”
At that time, [Moshe's] mind became settled, and he returned to HQBH.
He said before Him, “Ribbono shel olam, You have one such as he and You wish to give the Torah through me?!” He answered him, “Silence! This is what occurred before Me!”
He said before Him, “Ribbono shel olam, You showed me his Torah, now show me his reward!”
He told him, “Turn around.”
He turned around and saw them weighing his flesh in the market place, and he said before Him [in horror], “Ribbono shel olam! This is Torah and this is its reward?!”
He answered him, “Silence! This is what occurred before Me!”

(Side note, the comment about deriving “mounds of laws” from the serifs and crowns on the letters probably has something to do with the difference between Rabbi Aqiva’s school of derashah (derivation from the Torah) and Rabbi Yishma’el’s. See my earlier blog entry on this subject. In short, there is a theory that Rabbi Aqiva’s school (from which we have Rabbi Meir and Rabbi Yehudah haNasi, and thus the mishnah) saw derashah as being about syntax. Rabbi Yishma’el is the one who coined the idiom “the Toreah speaks in the language of man”, and it’s unsurprising that his rules of derashah focus on semantics. Rabbi Aqiva’s school literally derived “mounds of halakhos” from the presence of specific words and letters in the Torah.)

Note that although Mosheh Rabbeinu didn’t know this law outright, Rabbi Aqiva said it comes from him. Many rishonim take this to mean that it derived from Mosheh’s teaching. (A notable exception is Rashi, who says that it was simply a law Mosheh learned later, after receiving this vision.)

With the power to evolve comes the possibility that in different communities and schools of thought it halakhah evolves in different ways. And so, “These and those are the words of the ‘Living’ G-d, but the halakhah is according to Beis Hillel.” As we lived together, to coexist the Sanhedrin found consensus, and since then we have other means of reaching uniform ruling on issues that become contentious or pragmatically impact Jewish unity. (Such as laws of conversion, marriage and divorce.)

Picture how life was for the typical person in the days of the first Beis haMiqdash. Land was divided once, by sheivet and beis avos (tribe and clan). When, Yehoshua’s generation passed away, it inherited by their children, and then again by their children, etc… Women moved off to their husband’s beis av, but for men — you lived next door to your brother, two doors down from your uncle, and most of your other neighbors were relatives. The sole exceptions being tenants of your relatives.

I think much of what drives the Torah’s laws of inheritance is Hashem’s desire for each sheivet to have a distinct derekh avodah, and each beis av to have its own subspecies. Without that, there is little rationale for choosing one gender over the other, and from Chazal until today we find ways to avoid being obligated to do so.

In fact, most questions must not have gone forward to the central beis din in Yerushalayim, the Sanhedrin. Each sheivet had their own judicial system as well, and their own high court. Israel was much bigger then than once the Greeks and Romans brought more modern means of harnessing, modern roads, etc… There was opportunity for much greater variety of opinions than those of Beis Shammai and Beis Hillel. Each sheivet had the opportunity to forge very distinct implementations of the covenant of Sinai. Each evolved according to the rules of halakhah, (in addition to the idolatrous and irreligious amongst us) and therefore all within the covenant, all of them “the words of the living G-d”, but with much less frequent need to impose “but the law is according to…”

The 12 nesi’im, the heads of the tribes, each gave the same gift for the inauguration of the Mishkan. And yet, for each day the Torah lists the items in the gift again, repeating the same text (or nearly so) twelve times. (Bamidbar 7:12-83) The Ramban explains that even though the items given were identical, a silver platter, a silver sprinking bowel, fine flower mixed with oil, a gold pan, a bull, a ram, a lamb, a goat, and shelamim offerings, the intent was distinct. And he goes through the gift of each nasi, explaining how he related it to his own tribe’s history, talents, and culture.

It’s mind-stretching to think how different their expressions of Torah would be. Perhaps they would even seem like different religions.

We are called Yehudim, Jews, because we are the descendents of the Kingdom of Judea, a population numerically dominated by members of the tribes of Judah. The first time we find the word “Yehudi” is in the megillah, describing Mordechai, “A Yehudi man was in Shushan, and his name — Mordechai the son of Ya’ir the son of Shim’i, a descendent of Kish, a Benjaminite.” Of all of the expressions of the covenant, only Judah’s survived. Just as within that tradition, we usually follow Beis Hillel over Beis Shammai. Rabbi Aqiva’s position is not the only one Mosheh Rabbeinu could see as a child of his own.

Yissachar was well known for their Torah study; despite living in the more idolatrous northern kingdom. I sometimes wonder what Isaacarism would have been like, as opposed to Judaism. Yehudah was more open to contemporary society. That’s how they merited to rule — they were known for he ability to admit wrongdoing (such as the story of Judah and Tamar, or David and Bethsheba), were spiritually committed, and were in touch with the facts on the ground. Yisachar were more isolected. Supporting their sheivet was a project of the sheivet of Zevulun, who tended to be seafaring traders and dye-makers. (Zevulun had a monopoly on techeiles for tzitzis and kohanic uniforms, as well as royal purple — both made from sea creatures.) A common model invoked for contemporary kollel is called “a Yissachar – Zevulun arrangement” for this reason. Would Isaacarism necessarily be ascetic, a religion of hermits and nezirim, with many gezeiros fencing in our physical desires from any taint of prohibition? Or is that too much speculation on too little data?

It’s interesting that the word for a halachic decision is a pesaq, a word meaning a break or an interruption. To pasqen is not to find a new position as much as to narrow down the set of permissable halachic rulings.

What is Judaism? Only one of the many possible expressions of the covenant of Sinai. Through the laws of halachic evolution and the forces of history, the only such expression that is still valid. But not the only one that could have been. Had we evolved differently as a people, the expression of the Torah that would address who we are would have been different as well.

Safeiq deRabbanan

R’ Aharon Rakeffet has a 10 year series on responsa literature and the art of making a halachic rulings. The classes are available on The following is primarily from his shiur of Dec. 19th, 1994 “Safek from Torah or Rabbanan” (starting at around 52 min. in). As is my norm, I add bits here and there.

The Rama writes that if one can not find a reason to choose one side of a machloqes (dispute) over another, he must use the rules of doubt. Which means that if the halakhah is fiscal, then the person holding the money keeps the money (hamotzi meichaveiro alav hara’ayah – he who wants to take from his peer has the burden of proof, “posession is 9/10 of the law”); when it is Torah prohibition or obligation, one must rule strictly; and in rabbinic prohibitions or obligations, one is supposed to be lenient. And thus much of responsa literature is about figuring out whether the prohibition is Torahitic or rabbinic. And once you find out it’s derabbanan, you can start adding up senifim lehaqeil, flaws in taking the law for granted, until one can consider the cumulative doubt sufficient to say safeiq deRabbanan lehaqeil.

But why do we rule leniently for a rabbinic law? Isn’t every rabbinic law really a Torah law of “do not veer from what they tell you, neither to the left nor to the right”?

1- Ramban (on Seifer haMizvos, shoresh 1): The same Rabbis who made the rabbinic prohibitions and duties made them only applicable in the case of certainty. They desired to make a clear distinction between Torah and rabbinic law.

2- [My own addition] R’ Shimon Shkop allows us to say the same thing, 180º off. In Shaarei Yosher, he asks the question of why a sefeiq sefeiqah (a doubt added upon a second doubt) is ruled leniently.

The Rashba (Shu”t 1:401) holds it’s a variant on the notion of relying on majority. If the first doubt is roughly 50:50, and the second doubt is roughly 50:50, the chance of violation is 1/4, and therefore ignorable. However, Rav Shim’on asks, why then do we have the rule “mi’ut bemaqom safeiq lo amrinan — we do not speak of a minority added to a safeiq“? After all, if the first doubt is 50:50, any minority to whittle away at one side would make a majority? And yet, a case of doubt plus minority is no more lenient than without the minority?

Rav Shimon explains sefeiq sefeiqa on other grounds. Who said that a doubt in Torah law must be ruled stringently? It wasn’t the Torah, it is rabbinic! And therefore, a second doubt on top of that first one is a doubt in a rabbinic law — and therefore we rule leniently.

(This reasoning also argues for accepting a sefeiq sefeiqa she’eina mis-hapekhes (an issue at the core of eating chadash), but that discussion would take us even further afield.)

So, rather than the Ramban’s limiting the specific prohibition to only cases where we are certain about the realia, it’s possible that we could limit the rabbinic enactment of ruling stringently on Torah law to have only been made about the other 612 laws. With the same consequent rationale.

3- Rav Meir Simchah haKohein miDvinsk (Meshekh Chokhmah, Devarim 17:11): A Torahitic prohibition describes something that is inherently wrong. The universe is made such that combining meat and milk is a problem (metu’af, meshuqatz).

A rabbinic prohibition lacks that reality. Chicken and milk isn’t inherently damaging, it is that it leads to error through habit or accident. Therefore, one needn’t the same care when dealing with rabbinic extension as when dealing with the damaging or refining thing itself.

4- Rav Elchanan Wasserman (Qunterus Divrei Soferim): Of course there is a reality to rabbinic statements. It is all revealed from the Creator, all the Ratzon Hashem yisbarakh (the Will of the Creator, blessed be He).  The difference between a derabbanan and a de’oraisa is the explicitness. Therefore it is less sacred, and violation involves lesser realities. A difference of quantity, not quality.

Rabbi Rakeffet links Rav Elchanan’s position to his belief in da’as Torah; both imply a belief that there is revelation of Hashem’s Will today through the rabbis.

5-  Shulchan Arukh haRav [another addition not in the lecture]: In a rare case of where the Shulchan Arukh haRav discusses the purpose of a law rather than just codifying practice, he discusses the significance of yom tov sheini shel galiyos, the observance of a second day of Yom Tov outside of Israel.

He explains that there is no time in the heavenly realms. The supernal “Pesach” is not associated with any particular time. Hashem made a connection between that Pesach and the 15th of Nissan, giving us a worldly manifestation within time. The SAhR continues that the 16th of Nissan is connected to the very same supernal Pesach. The seder on the 2nd night is a manifestation of the same metaphysical reality. What differs is  who draws down the connection, not what it is we are connected to.

Perhaps this is generalizable to rabbinic legislation in general. This would result in an opinion similar to Rav Elchanan’s in that it gives a reality to rabbinic law, rather than their just being pragmatics for how to keep Torah law. However, the opinions are also quite different in that it makes the rabbinic legislator a metaphysical engineer, building the reality, rather than a conduit of Hashem’s revelation of that reality.

And, to continue R’ Rakeffet’s thought, Chassidic attachment to the Tzaddiq is not the same as the Yeshiva World’s notion da’as Torah.

6- Seifer Me’iras Einayim (SM”A, Ch”M 67, #2): The berakhah that Hashem gives to those who keep shemittah , that they will have sufficient crops in the 6th year for the 6th, 7th and 8th years, is only when shemittah is mandatory by Torah law. (I.e. when the majority of the tribes are in their lands, and therefore there is a yoveil every 50th year.) Today, someone who keeps rabbinic shemittah gets no such guarantees.

7- Chazon Ish (Deshevi’is 18, #4): The blessing did apply during the 2nd Temple and after its destruction, for the heavenly court fulfills based on what’s decreed down below.

Rabbi Rakeffet identifies the SMA with the position of the Meshekh Chokhmah, and the Chazon Ish with R’ Elchanan Wassermnn’s. To my mind, it’s possible that his position is more like the Shulchan Arukh haRav.

However, this explains why the Chazon Ish was so willing to be stringent when it came to keeping shemittah. Had he felt that the observance didn’t come with insurance from the A-lmighty, perhaps he would have ruled leniently.

Halachic Change

Pesaq “changes” in a number of very different ways. I put the word in quotes, because I’m including things I do not consider an actual change in pesaq. R’ Herschel Schachter writes in a number of places of the difference between appropriate halachic innovation, “chiddush“, vs unauthorized change in established din, “shinui“. Much rests on whether one is actually changing established din, and whether that change is authorized.1- The realia change in some subtle but relevent way. What seems like a new pesaq for an old situation is actually a pesaq for a new situation. This isn’t what RHS would call chidush or shinui, it’s not really a change of halakhah. Chiddush — it’s a new pesaq for a new case.

If teaching girls Torah were declared “assur” rather than “tiflus“, the Chafetz Chaim’s grounds for backing Beis Yaakov would qualify. He held that universal secular education for girls was a change in realia which in turn changed the definition of “teaching them enough for them to observe Torah”. Teaching halakhah is no longer enough; they now must also see that Torah has greater beauty than the other systems of thought to which they are exposed. As it is, the Chafetz Chaim justified a change in minhag Yisrael, which is KEdin (like law) and thus follows the same rules — but what was changed wasn’t actually din itself.

1b- Technology advanced to make a new option possible. With a new set of options, we have a new reality. This may well call for a new pesaq.

Eg 1: If a woman ovulates before day 12, how do they ever have children? Many poseqim have historically permitted the couple not to fulfill the full 5+7 days of waiting, because the obligation to “be fruitful and multiply” outweighs a late practice of treating every period as though it might be zivah. However, with the advent of IVF-H (in vitro fertilization from the husband), a poseiq might decide not to wave the law, and require them to use IVF to fulfill the obligation to reproduce. If he so decides, it’s a new pesaq for a new case — not overturning precedent.

Eg 2: R’ SZ Aurbach held that modern ink making methods have advanced greatly due to superior grinding and therefore mixing of the ingrediants. In fact, he rules that indoor mezuzos ought not be checked. The chance of a letter cracking due to age are far smaller than the risk caused by unrolling and rerolling the parchment. Previous pesaqim are ignorable, since they speak to an inferior ink, not the situation now facing the rabbi.

1c- One can not overturn din because of the motivation of the din. If the motivation no longer applies, eg not using medicines on Shabbos lest someone may grind one (not that any of us grind our own medicines today), we may find that the balance of conflicting values shifted. But the din itself, to be implemented no conflict exists, stays on the books.

The exception to (1c) is where the motivation is codified in the din. For example, YD 1:1, women don’t shecht because it would make them queasy. If the pesaq was that queasy people who would be unable to maintain the settled mind necessary for good shechitah should shecht, eg women, then a veteran of a MASH unit may very well be allowed to shecht even as decided before employing her. However, if the pesaq is that women may not shecht, and the pesaq made because of assumptions about women, then we do not have such latitude.

This is a subcategory of #1 because we aren’t giving a new pesaq to an old situation. We are recognizing the fact that the current situation is actually a different one than what the precedent was set for.

2- “Halachic technology” advanced. Someone thought of this once-new concept of a heter mechirah (selling the land to a non-Jew so that the land may be worked during shemittah), or of a heter iska  (configuring something similar to a loan with interest, but structured as a permissible investment), etc… If a poseiq feels that this invention is obvious enough that if it were valid, someone would have utilized it by now, then he would find that lack of usage to be a proof that it must be flawed. However, if it’s not obvious, then pruzbul or a rider for the kesuvah to protect the bride in case the groom might someday refuse to give her a get, etc… have not been ruled out. And so, some such proposals are actually shinuyim, and others are healthy new growth, chiddushim.

Here we aren’t changing the pesaq, we are orchestrating a new situation in order to be able to be subject to a different pesaq.

3- The realia don’t change, our knowledge of them does. The advance of science. But what to do when the realia change is a huge dispute with three basic approaches:

Rav Kook allowed changes in scientific theory to make rulings more stringent, not more lenient. This is based in an idea earlier expressed by the Vilna Gaon, that for every known reason for a law, there could be many undocumented reasons. Therefore a change in science might remove a cause for a stringency, but other, unknown, causes may still exist. However, if  it removes a single explanation for leniency, then we have sufficient grounds to be strict.

Alternatively, one could argue that changes in theory do not warrant such change. Either on the grounds that we lack the pro forma authority to make changes (we lack the legal authority of Chazal), or because of a skepticism about scientific theory. Why change the law when the theory is bound to change eventually anyway?

A third possibility is to handle each one on a case-by-case basis. Often in effect this is means a resistance to change in halakhah, but in each case a distinct reason is found to support the original ruling. See for example this earlier essay in which I discuss my recollection of Rav Dovid Lifshitz explananing the kashrus of maggots.

Here, in the United States, around the 1980s, it became more common to have concern about the bugs on vegetables we eat. Any bug that is large enough to be seen by the naked eye may not be eaten. However, one need not use a magnifying glass or microscope to find tiny insects. My rebbe, R. Dovid Lifshitz, used a similar idea to explain a different problem. The Gemara explains that maggots found inside a piece of meat are kosher. (I presume that the case if where someone ate them accidentally and now wants to know whether he must bring a sacrifice.) The reason given is that they were born from the meat, and idea known in the history of science as spontaneous generation.” Therefore, halachah treats the maggots identically to the meat.

Spontaneous generation has since been disproven. Maggots come from microscopic eggs. Now that we know that the underlying science is wrong, does this mean that the halachic ruling is also wrong?

Rav Dovid taught that the halachic ruling is still correct. The microscopic eggs and maggot larvae are not within the realm of human experience. The only cause for the current presence of maggots that we can see is the meat. In terms of human experience, the meat is the source of the maggots.

Thus Rav Dovid manages to save the ruling, but does so by finding reasoning specific to the case. I do not know if Rav Dovid had an article of faith that such reasoning would always be found, and if not, what he would do when it couldn’t — change the halakhah or not?

The subject of chiddush vs shinui will therefore be omitted in this case; it depends on how one believes the halakhah should change — or not. Does precedent matter, or was the earlier ruling simply in error (technically: a valid ruling about a situation that doesn’t arise)?

Halachic Process, part I

Eilu va’eilu divrei E-lokim Chaim, vehalakhah keBeis Hillel — These and those are the words of the ‘Living’ G-d, but the halakhah is like Beis Hillel.” The voice rung out from heaven that even though the law is ruled according to Beis Hillel, Beis Shammai’s position is also the word of G-d. There is some variation in halakhah between people — and yet both are right. We can’t expect every halachic decisor to take the same data and reach the same conclusion, even if no one errs. In the past, we compared different models for explaining how multiple correct answers could coexist (see Eilu vaEilu parts I and II). Here, that would keep the conversation too broad. I will instead just explore the problem from the Maharal’s perspective.

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.

To finish out the metaphor: The angle at which we look at Devar Hashem is our “derekh“, our path in how we . This derekh, just like the lamp, is determined by two things: mei’ayin basa, ule’an ata holeikh — from where do you come, and to where are you going? Where the lamp is, and the angle it points. Different people were put together differently, and can have different emphases in how they interpret the ultimate goal.

The complexity of Devar Hashem causes the illusion (to us) of paradox. It’s no more real of a paradox than the 5 blind men who argue about the nature of the elephant. The one who felt the elephant’s ear would argue an elephant is like a fan. The one who felt its leg would think it is like a tree. But it’s only because we can’t capture the full picture.

We therefore see the Torah as demanding conflicting values and duties. (Unresolvable dialectics, in R YB Soloveitchik-speak.) Depending upon which we choose to prioritize, followers of different derakhim will obtain different results. But you won’t make it to the top of the mountain if you first try this route and that that. You need a consistent plan.

Someone who changes the weights to find a desired result is no longer simplifying an Infinite Truth to fit it into this universe. Different shadows of the same object are each valid. But if you trace the shadow while changing the direction of the lighting mid-stream, you are left with a picture something that isn’t a shadow of the original. The weighting can’t simply be to justify the result; and in that sense even including human cost is different than ends-driven decision making (picking the pesaq to fit some non-Torah desire). The weighting system, the angle of the light, is the a priori — and must itself be a product of the halakhos of making halakhah.
This notion, that halakhah is a human-sized model of something far richer, also dovetails well with another idea I fell in love with, something from 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. (RMK notes in a footnote the connection between this idea and some ideas in R’ Dr Haym Soloveitchik’s essay “Rupture and Reconstruction“, Tradition, Summer 1994.) Earlier cited cases are the loss of culture that occurred with Moshe Rabbeinu’s death, when 300 halakhos were forgotten, and Osniel ben Kenaz reestablished them – chazar veyasdum. Similarly the reestablishment of numerous dinim by Anshei Keneses haGedolah after the return from the Babylonian exile — shakhechum vechazar veyasdum. Leyaseid, he suggests, is this codification.The informal knowledge of a “native speaker” is limited by the capacity of the human mind. But still, it captures more of the ineffable whole, the true “divrei E-lokim Chaim” than can be set down as formal rules.

Even the codified rules, therefore, are not all-or-nothing absolutes. Rather, they give clarity to the issues that a poseiq must weight, highlighting the relevant aspects to different elements of the fuller picture. For example, “acharei rabim lehatos” means that rulings follow the majority. But this doesn’t mean the minority is entirely ignorable; and in fact one may need to rely on that minority opinion if other factors come into play. The poseiq can then weigh pro vs. con.

We’re dealing with a fuzzy system, which acknowledges a realm where answers may be more or less halachic, rather than entirely within or outside the fold. Of course in many situations, the answer is clear and the difference between this kind of system and a straight rule-based algorithm is moot. But those are not the scenarios that require complex pesaqim and become the “interesting cases” in our responsa.

This weight-based methodology doesn’t make for looser requirements. In fact, often quite the opposite. If all rules were absolute, always of the form that factor X always trumps factor Y, then our language for dealing with conflicts in priorities would be quite limited. In cases where conflicts come into play, where the Maharal’s notion of simplification of the Infinite is manifest, one is given no guidelines — and thus full autonomy would have been granted. Rather than an algorithmic interpretation of halakhah being more defining, it’s less.

To explain further by metaphor:
If you have a digital thermostat, it probably is based on Fuzzy Logic. I’m not sure Zadeh’s “Fuzzy Logic” is the best way to represent more or less vs all or nothing, but it was that meaning that I was suggesting. There are other multi-valued logics. Statistics could even be adapted as one. Quantum Mechanics suggests a third, etc… But it is a good example to serve as a parallel for our purposes.

Fuzzy Logic is one in which AND means “take the minimum”, and OR means “take the maximum”. Say two balls are different shades of red, one a real primary red — we’ll say it’s .9 red, and another somewhat muddier, some might even call it brown — just a .2 red. In FL, we would say that the statement “both balls are red” is also a .2 (AND — the minimum of .2 and .9), while the statement “at least one of these balls is red” is a .9 (this ball is red OR that one [or both] — the maximum).

Fuzzy Logic is used in thermostats because the question “is it hot?” really needs to be able to represent “no”, “a little”, “very”, etc… Without such gradations, digital thermostats tend to turn the heat on and off too often (or need some even more complicated solution). Now, one thermostat manufacturer may weigh the heat based on degrees above comfort zone. Another might acknowledge that these things are non-linear, that I’m not nearly half as uncomfortable when the temp is 5 deg off than when it’s 10, and may have some fancier weighting system.

Notice that there are basic rules that any thermostat must comply to. For example, the temperature should be within the desired range at all times. All thermostats will end up sharing certain properties of the rules and the weightings used.

In Artificial Intelligence software, the word “heuristic” is used to describe a system for finding a solution that is less formal than an algorithm, might not always get the optimal solution, but is used because the perfect algorithm either doesn’t exist or would be too slow or complicated to ever get used. In truth, computers are algorithm machines, and thus the heuristic is really a just a much faster or simpler algorithm than one aimed directly at solving the problem perfectly.

Heuristics better represent human thought, as people aren’t algorithm machines. Heuristics better capture that looseness. Like in this case, we weigh pros and cons, not follow strict “IF … THEN …” rules on true vs false prepositions.

And so we find a range of dependence on formal rules in teshuvos. There are those I would call da’as Torah teshuvos, where it’s clear the poseiq was enough of a “native speaker” to realize the issues and weigh them before he was even conscious of needing to. The teshuvah then becomes an excercise in explaining the ruling post facto, perhaps to confirm than the instinctive answer was sound.

My favorite example of the da’as Torah pesaq is the prohibition of electricity on Shabbos. There is far more universal agreement that electricity just doesn’t fit the feel of Shabbos, as shaped by hours of talmud Torah, than on the reason why it’s assur. And in fact, some of the reasons found are self-evidently stretches to explain after the fact what seemed obvious. Boneh (building) a circuit? Where else do we see something called boneh on Shabbos where there is no actual roof involved?

Then there are the teshuvos where the poseiq relies very heavily on rules and precedent.

In between are the typical teshuvos, ones where the heuristic nature stands out quite clearly. A common form of teshuvah in Even haEzer and Yoreh Dei’ah (as well as some parts of Orakh Chaim, e.g. eiruvin) is where the author starts out by proving the law in question is rabbinic, or that some major issue doesn’t apply, and then provide snifim lehaqeil, motivations for leniency, where no one is sufficient but the poseiq combines them as justification.

In a future entry, I will explore how this notion is applied differently by various poseqim, and what it means to understanding machloqes and the limits of pesaq. Defining a limit is more difficult when one can’t rely on checking compliance to specific rules. How does one differentiate between differences in prioritization of issues and outright violation of the system?