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?

Halachic Process, interlude: What it isn’t

(I am going to do something I try to avoid when writing in public — dedicate a post to criticism. This post may someday disappear, if I ever change my mind, so read it now while you can.)

The story so far: In part I, I suggested that the process of pesaq isn’t a set of rules to be followed, but a set of rules that define pros and cons that the poseiq must weigh. In most cases, the difference is irrelevent But in complex cases (all the interesting ones), a rigid algorithm can not handle conflicts in values, the complexity of the real world. The heustic therefore adds more voice to halakhah by allowing some guidelines beyond those cases. Most of the previous post was dedicated to a philosophical discussion of why the A-lmighty would choose this system.

I had originally planned to continue with examples and details, flushing out the system. However, preliminary discussions about this notion led me to conclude it may be more useful to start out by defining what adding fuzzy edges to the system doesn’t do. How does this not simply lead to anarchy? I think this question is sufficiently pressing to deserve an interruption before drilling down into the details.

So, even though we inherently can’t articulate the weights one uses in judging the various conflicting desirata, here are some criteria they must meet:

  1. Honesty
  2. Consistency
  3. Loyal to Traditional Priorities
  4. Formally sound
  5. Produced from within a Torah gestalt
  6. Produced to find how to serve Hashem, not some other goal

But that’s too vague to be usable even as mottos. I therefore had to rely on examples for illustration. So, taking from using the Conservative legal process (hereafter “C”) and a couple of other examples as a foil to help explain these limits, this is what the halachic process isn’t:

1- Dishonesty: Obviously, dishonesty does not create valid halakhah. The few C responsa I have looked at have flaws such as partial quoting, or quoting a hava amina (a rejected suggestion) as though it was a conclusion.

For example, in Silverman’s responsum allowing pasteurized wine as yayin mevushal, he cites a teshuvah from the Rama. In it, the Rama deals with the question of how to treat the Jews of Moravia, who were willing to drink stam yeinam. At no point in time does the Rama say they are right for doing so, but he does conclude that since the current generation learnt this sin from their parents and grandparents, they are mistaken, not rebellious, and should not be categorized as mumarim. Silverman uses this as precedent for being lenient on stam yeinam itself.

2- Inconsistency: C will use conflicting weighting systems depending on the desired answer. Internal consistency is a clearly defined requirement, only a shade less self-evident than the need for honesty. As I wrote in the previous entry:

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.

One can’t be self-contradictory in halachic ruling. To take an Orthodox example, the normal observance of omer is not to listen to music during some part of the omer. And therefore most people will not put a music station on the radio during that period. But they might throw a party, but not hire a musician for it. According to R’ YB Soloveitchik, the primary problem is partying, that music was cited because until recorded music, it was generally associated with celebration. Therefore his students do listen to music on the radio, but should not throw a party even without a musician. It would be inconsistent for someone to both listen to music privately, and attend parties that have no musicians.

The same is true in process. For example, many (but a decreasing number) Orthodox women do not cover their hair outside of the context of synagogue, because they believe there is a mimetic tradition, a minhag avos, of doing so. Therefore, it must be justifiable, even if we don’t know how. (This argument is flawed in that even back in Lithuania where this was the norm, it was acknowledged that it was an error for married women not to cover their hair. The rabbis complained, albeit most — including many of their wives — didn’t listen.) Meanwhile, there are Orthodox women looking to organize Women’s Prayer Groups, crafting a way to innovate a ritual service for women that fits the letter of halakhah (as their rabbis decide it).

I would argue, that this pair is procedurally inconsistent. If someone feels that mimetic tradition is the more weighty concern, then how can one innovate a kind of prayer service our ancestors would not have? And if instead one looks primarily at what is formally permitted in the texts, how can one not cover her hair after marriage? Perhaps one can draw a distinction between the two cases on other grounds, despite their similarity of domain, but the argument (flawed or not) illustrates what I mean by the need for procedural consistency.

3- Ignoring the Important: C will fail to weight matters that are indisputably important.

Example: C denies that the Torah was necessarily dictated by the A-lmighty, and therefore Torah law and particularly those Torah laws derived by derashah are considered the products of human invention. Therefore, even the distinction between Torah and Rabbinic law can be overlooked if they want to outweigh a Torah prohibition.

Or, amoraim were unwilling/unable to dispute the conclusions reached by tanaim, assuming we’re not just talking about choosing one tanna‘s position over another. Notably, the gemara often takes the time to point out “Rav tanna hu upalig — Rav counts as a tanna, and so could disgree.” and argue with tannaim despite not being Rav. In numerous places an amora’s position is questioned on the grounds “vehatenan — but didn’t the tanna say otherwise?” The inability to dispute a tanna was a given.

Similarly, with the closing of the talmud we are told that “Ravina veRav Ashi sof hora’ah — Ravina and Rav Ashi, the compilers of the gemara, were the end of real halachic decisionmaking.

The line between rishon and acharon is less clearly defined, and many hold it’s a matter of convention and respect, not authority. This is how we can have exceptions, like students of the Vilna Gaon or of the Ba’al Shem Tov, claiming their mentor as a “throwback” to the greater times. (Someone who managed to recover some of the Sinai culture, so that they “speak the language” more like a native than their era would indicate.)

But there is unanimity that rishonim‘s opinions get much more weight than those of (nearly all) acharonim, and that one must invoke one of the modes of halachic change to explain how one can defy what seems to be the precedent by Chazal (tannaim and amoraim). In other words, the dictum that they are “sof hora’ah” means that their opinions get SO much weight as to be indistinguishable from an absolute rule in the algorithmic sense that we can not defy their conclusions.

C responsa are willing to dispute mishnaic and talmudic conclusions.

An Orthodox example: Nearly all poseqim (with the exception of R’ Rackman) are not willing to anul a marriage. The gemara has 5 cases in which the court can anul a marriage, based on the notion that “kol demeqadeish adaas derabbanan meqadeish — anyone who weds does so on the acknowledgment of the rabbis.” (The standard wedding formula makes this explicit, as we have the groom say “according to the rite of Moshe and Yisrael.” But it’s a presumed condition on marriage even without this declaration.) But we find that there are nearly no examples of this being applied after the geonic era. And every application is not a by-case decision, but a general rule. Such as “Anyone who weds in a bar, we annul the marriage.” Today, one would have to ask, which rabbis does this conditional refer to? There is no historic community which anulled qidushin – and the possibility for a halachically married couple not being legally married (by civil law) has existed since slightly before the Emancipation!

Why? Because aishes ish (having relations with a married woman) and mamzeirus are very weighty issues. They can’t simply be ignored, even for the sake of the poor women whose husbands abuse the system to make them agunos. At some point, there is no dispute that one is working with misplaced priorities.

And so, R’ JB Soloveitchik broke from norm, and the only time he condemned the actions of one of his students in public was when Rabbi Rackman established a beis din that would anull such marriages.

4- Formally Unsound. C will weight “textual” factors, formal rules that simply are invented of whole cloth.

Such as their rule that the Committee on Law and Jewish Standards (their central lawmaking body) does not decide law by majority vote. Rather, any minority of at least 6 members is considered a valid alternative. This voting model simply has no precedent or place in the halachic process.

5- Not produced from within Torah: C values objectivity, and therefore end up trying NOT to bring the right gestalt / da’as Torah to the process.

C conflates rabbinics with modern notions of scholarship. However, the point of a scholar is to understand a topic objectively, from the outside. The purpose of talmud Torah is to internalize the values and priorities conveyed in the Torah.

Therefore, the inarticulatable part of the system, the proper weighing of pros and cons, is impossible.

E.g. There is a concept when it comes to eating kosher that non-kosher food is “metamteim es haleiv — closes up the heart”. (Whether one understands this mystically, or as a a psychological statement about people who do not try to elevate their eating to be more than that of an animal aside.) The C rabbi is incapable of feeling this tradition in his bones, because he was taught to learn the notion with an attempt at precision coming from cold detachment. And therefore, the C rabbinate was far more lenient on matters of kashrus than O would be.

5b- Ends-driven to non-Torah goals. C is “ends driven”, trying to get the desired pesaq. With this model in hand, I would now say that C is using values to weight their decisions that are more Western than rooted in aggadita. (Which is how C can seem to end up wherever R does, just 15 years later.) By adopting historical school beliefs, they invent a history of weighting things that bears no resemblance to halakhah but rather political power ploys. Both between rabbinic schools and to accommodate the masses.

Recently C decided that women could serve as witnesses (in matters beyond determining permissability; e.g. to validate a wedding), entirely on the grounds that once it allowed them to be rabbis and cantors, drawing the line at witnessing is absurd. This was simply an acknowledgement that they imported the modern western version of Egalitarianism into their judgement system, aside from the procedural problems mentioned above in ignoring Chazal’s decision without showing how it wouldn’t apply.

In the next (and last) post in this series, I will drill down into the details of the model and show how this description of how halakhah is made conforms to various famous halachic decisions.

Halachic Process, part II

So far, I’ve discussed how I think halakhah works, and how I think it doesn’t. To refresh — fitting devar Hashem into this world an our minds requires simplifying modeling, “shadows” that only capture aspects of the fuller truth. These models can conflict, leading to machloqes. It also means that living by halakhah will requires assessing conflicting priorities. Ideally this should be made by someone immersed in the culture. As we lose the Sinai culture, the poseiq has to rely ever more heavily on formal rules. However, the purpose is to clarify the issues to be weighed; halakhah is a heuristic process to find an acceptable balance.

Thus, machloqes initially comes from different rabbis giving different issues different weights. Approaching the same goal from different directions. But there is also a second effect — the process itself is halakhah, and subject to machloqes. Thus, “correct process” diverges over time, and decisions could be made off weighing different formal rules. (But the existence of those differences in rules originate in differing weights.)
Therefore, at this point in time, the outermost layer of the onion might look different in different people’s hands.

Some of the thornier problems of eilu va’eilu come the self referential nature of halakhah. One paradox discussed here before is that the range of opinions about which one can say eilu va’eilu is itself subject to eilu va’eilu. But how can I say that I accept someone’s position as a “va’eilu“, an expression of the word of G-d, when part of that position is not to accept mine?

This is true both of the issues, and in how one weights them. They must make sense in relation to the halakhos of halakhah-making (hora’ah). To take an extreme case: A process that values a 15 minute interruption (perhaps on the ground of tirkha detziburah — bothering the community) more than a fundamental issue like mamzeirus would not be considered halachic. And this notion has profound consequences on aggadic issues — whether one considers a particular religious feeling to be a desideratum or as assimilationist would be the difference between mandating and prohibiting!

Let’s say we define a valid “eilu” as one produced by a proper use of the halachic process. Well, since that process itself is subject to dispute, there are bound to be decisions that aren’t in my range of “va’eilu” because they follow a different set of rulings about how to make halakhah than I follow. But those pesaqim too came from the process… at some point there must have been a common ancestor, and it could very well be that if we look at this metaprocess, both sets of pesaqim-about-making-pesaqim are valid after all. A self-denying paradox, depending on how deep you look at rules for making rules or the rules for making the rules by which we make the rules…. If so, there is no end (im kein ein ladavar sof), no?

These various factors that the poseiq must weigh come in three general areas: legal procedure, minhag and aggadah.

Legal Procedure: Not only do the formal halachic texts spell out the various values for consideration, the process itself is an issue that suggests how they are weighed. The difference in authority based on the era in which the idea is first articulated — tanna, amora, rishon or acharon. Within an era, where two sides can be considered worthy disputants, the notion of ruling according to the latter. Or one’s rebbe. Or the majority. Etc…

Here are some examples of halachic procedural issues and how they play out.

1- The Gra and Brisk place the greatest emphasis on sevarah and the mechanics of the halachic rules as laid out in various texts.Within that basic orientation, the Gra has a strong emphasis on Ravina veRav Ashi sof hora’a that true halachic decision-making ended with Ravina and Rav Ashi, the compilers of gemara. There is also a story in which one of his students told another that their rebbe was like a tanna. The Vilna Gaon overheard that conversation and corrected him. “Not at a tanna, only one of the later rishonim.” In any case, someone with the authority to engage in a dispute with anyone else after the close of the gemara. The Chazon Ish also accords the Gra the authority of a rishon. (And among Chassidim, the same is said of the Ba’al Shem Tov.)

2- Rav Moshe Feinsteinzt”l was asked by the New York Times how he rose to prominence as America’s premier halachic decisor. Rav Moshe explained that he simply answered one student’s question, and then another, and word of mouth lead to consensus. This is a derivative of the notion of following majority, and one of following one’s rebbe, not quite either. Therefore, it lacks the effectively absolute weighting of a majority counted in Sanhedrin, or following one’s primary rebbe. But similar enough to lend Rav Moshe’s position great authority. Thus, this is the weighting of Rav Moshe’s a formal ruling, not an absolute rule itself.

3- A longer example of differences in procedural concerns: The Rif (end of Eiruvin) states that the greater authority of the Talmud Bavli over the Yerushalmi is an application of the rule that halakhah kebasra’i, the law follows the later authority, since he represents a later development of the law, taking the earlier into consideration. And that is what we generally see in Sepharadic practice. Ashkenazic practice has more exceptions, cases where the norm of early Ashkenaz is defended and continues through to this day despite running against the gemara. The rule is simply less central to Ashkenazi weighting systems.

Professor Agus traced a number of Jewish practices, Hebrew pronunciation and population flows. He concluded that the immigrants that became the Sepharadi community came almost exclusively from Bavel. Ashkenaz was formed by a richer mixture of Babylonian and Israeli refugees. This would explain why so many Ashkenazic practices that Tosafos and other rishonim have to creative defend against the Bavli find their sources in the halachic midrashim and the Yerushalmi. Israeli sources. This would explain the lesser Ashkenazi weighting for the Bavli as being about local ruling and following one’s own rabbeim. Having these stattered sources rather than the Sepharadic tradition based on the same sources as the single text of the Bavli means that Ashkenazi rishomin perforce had to value minhag avos more, whereas Sepharadim would not cause the same upheaval by being textualists.

There are two reasons given for washing mayim achronim before benching. The gemara explains that (1) one’s hands should be washed of before benching, no less than one does before eating hamotzi. A naive read would seem to imply this is about tum’ah, just as the initial washing is. And (2) they used to use a kind of salt from the Sodom area which could injure the eye. Therefore, for health reasons, one should wash one’s hands at the end of every meal.

Tosafos start their discussion with the realization that in practice, Ashkenazim do not wash mayim achronim after every meal. They do not make the implication from the comparison to washing before the meal that this washing is related to tum’ah. And since we no longer use Sodom salt, there is no motivation any more to wash. In other words, we have minhag avos saying don’t wash, and the Bavli could be read in a way as to not imply that we today need to wash. And so they rule we do not need to wash. In fact, this could be said as following the Yerushalmi, which only mentions the salt problem and doesn’t make the comparison to washing off tum’ah before the meal altogether.The Vilna Gaon and Shulchan Arukh haRav, who both share a textual focus that centers on the Talmud Bavli, both recommend washing mayim achronim. But since the gemara’s conclusion is escapable, only as custom, not as law. As law, and as practiced by Sepharadim, the obligation would be like washing before bread — applying to women no less than men. The custom, however, was only accepted by men.

Minhag: Among Yekkes, in contrast to the Litvisher yeshiva’s focus on textual sources and authority, far more emphasis is placed on minhag avos, following the ruling upheld in practice by the community. Every community gives some priority to existing pesaq, but among some it is more pronounced. Leading to differences in when to follow consensus or informal majority, or some other procedural gray area (even if the gray might be quite dark or almost off-white).

One also sees this distinction in tendencies in the Mishnah Berurah vs. those of the Arukh haShulchan. The Mishnah Berurah rules according to halachic mechanics, often coming up with conclusions not actually in practice by any community. His general approach is to follow the majority of later published opinions, focusing on the development of halakhah after that implied by the standardization of the part of Shulchan Arukh with the Bach and Taz. (Looking at the introduction, it was not the Chafeitz Chaim’s intent to produce a book of pragmatic rulings, but rather a survey of these later opinions that came out after the last book readily available to most Jews — the standard edition Shulchan Arukh. However, this distinction only shifts the point from the Chafeitz Chaim’s intent in writing it to those rashei yeshiva who did shift the use of the Mishnah Berurah to the pragmatic plane.)

The Arukh haShulchan, on the other hand, gives emphasis to what was the local minhag, and will consider factors like the minority opinion if that justifies the halakhah as practiced. Because, as noted above, the rule to follow majority only loosely applies to counting published texts. And besides, does not common practice imply that many unpublished rabbinic opinions did support it?

Rav Dovid Lifshitzzt”l‘s advice to me when I was setting up my home was to follow the Arukh haShulchan as a pragmatic guide, as it best represents the halakhah as followed by my ancestors in Litta. R’ Henkin and R’ Yaakov Weinberger are recorded by students as telling them similarly. Someone who follows this preference for the Arukh haShulchan is likely to have a minhag avos orientation; although following it over the Mishnah Berurah isn’t itself an example of such behavior. What Rav Dovid taught me to do is follow a formal ruling, a text, written by someone with a strong belief in the authority of minhag. That is different than accepting halakhah as a culture passed from parent to child, and not requiring this formal analysis. A difference between seeing halakhah entirely as law, or also acknowledging it as “Orakh Chaim“, (literally) a “lifestyle”.

This is also a paradox in following the Chasam Sofer’s motto of “chadash assur min haTorah“. (“The new is prohibited by Torah law”, a motto taken from a quote about the law of using the new year’s grain for one’s own food before the omer offering.) This path calls for one to consciously imitate a kind of Judaism that wasn’t founded on conscious imitation of the past! It itself is “the new”! And in fact, because it is lifted to formal process, and a conscious attempt to preserve, the result is less fluid than the pre-declaration lifestyle they are trying to preserve.

I didn’t mean this “paradox” as a disproof. Rather, just pointing out that “chadash assur min haTorah” is an equal and opposite reaction, and not (as it seems at first glance from the words) a preservation of pre-Haskalah life. Like Chassidus, neo-Orthodoxy, the Yeshiva movement or Mussar, it too is a shift away from minhag avos to reliance on a formalization. Which was inevitable; the ghetto lifestyle had no equivalent anymore.

Aggadic Values: When multiple solutions are supportable, the poseiq may choose the conclusion that best satisfies the questioner’s quest to be holy and whole. There are numerous examples of such rulings from Chassidic or Mussar sources. Such as: Chassidim permitting hand-clapping to enhance one’s singing and Shabbos experience. The preference to prohibit that one would be left if considering only textual sources of formal halachic codification is outweighed by the aggadic value of having a more passionate ecstatic Shabbos experience. Similarly, Mussar stories of Rav Yisrael relying on a lenient ruling on how much water to use for hand washing rather than be stringent at the expense of demands the ultimately fall to water drawer or the maid who brings the water to the table. It reflects a different prioritization of the values that the situation brings into conflict.I feel R’ Dr Haym Soloveitchik neglected this element of aggadic value in his famous essay “Rupture and Reconstruction” (Tradition Magazine, Summer 1994). Dr Soloveitchik creates a dichotomy between an intellectualized formal halakhah, and a felt halakhah of culture. With the rupture in culture caused by the Holocaust, we shifted to relying more on texts and formalization. And Dr Soloveitchik associates this with his father, R’ JB Soloveitchik’s lament about the loss of the erev Shabbos Jew; the Jew who not only keeps the precise details of Shabbos, but can feel the anticipation of its arrival on erev Shabbos. As R’ JB Solovetichik describes experiencing as a child in Chaslovitch, a town with a Litvisher rav and a primarily Chabad community.

However, to my mind, one misses something by conflating cultural observance with the cultural transmission of values. One of the dangers we all face in our observance is falling into the trap of mitzvos anashim meilumadah, following the law simply because it is how we were raised, with no underlying belief or quest for holiness. Similarly, the first generation of Chassidim changed their practices in accordance with their new path to holiness without a mimetic tradition, and in fact, despite it. These two factors are distinct alternative is formal legal process. The space of factors to consider contains three extremes in a triangle, not a dichotomy.

I believe that it was this element that changed most with the rupture in Jewish culture caused by the Holocaust. The drift away from prioritizing minhag avos was already well underway since the days of the Baal Shem Tov and Vilna Gaon, with the fall of the ghetto walls. But they were ideological motivated — the new perspectives (new angles of lighting) caused by their respective movements forced new pesaqim. With the Holocaust, we lost touch with those ideals, thereby needing to rely more heavily on the weightings implied by the formal process, shifting the Mishnah Berurah from a tool for studying halakhah in theory to a renormalization of practice.

And so, the 19th century was largely one of Isms. And during that time, aggadic supporting  pesaq came to the fore in many circles. Personally, this is where my own preferences lie; I would be happier if more poseqim resolved their gray areas and chose their sides of machloqesin based on their overall view of the values in conflict. Deciding which branch of the tree best fits the forest they’re trying to plant.

The interplay between these basic tendencies is critical. Without minhag, we could allow halakhah to drift into something unrecognizable based on the latest theory. Without the occasional textualist being willing to challenge the status quo, forgotten halakhos would lead to erroneous practices that are then enshrined over time. And without someone trying halakhah back to the basic goal of “his-haleikh lefanai veheyei samim — walk yourself before Me and be whole”, we fall into the current trap described by R’ Dr Haym Soloveitchik. “Having lost the touch of His presence, they seek now solace in the pressure of His yoke.” Repeatedly but unsuccessfully trying to fill a spiritual void by seeking stringency after stringency in halakhah.And even within each of these three categories (procedure, minhag and aggadic value), different poseqim would weigh different factors differently. What does the notion that Ravina veRav Ashi sof hora’ah (Ravina and Rav Ashi, the primary compilers of the Talmud, mark the end of halachic determination) mean for the relative weights to give rulings that have no known formal discussion until after them? Different poseqim, different prioritization.The Gra is not only process-centric, he also places a huge gap in authority between the Talmud and Ravina veRav Ashi and anyone afterward. Between the two, the Talmud’s authority ends up very great. Much more than in the weighting system of anyone else that comes to mind. (Except maybe the Rambamists, in theory. But they believe the Geonim and the Rambam’s Yad accurately record pre-Talmud textual mesorah, and thus give them that kind of weight as well.) For example, he follows the implication of the gemara that one should only use two matzos at the seider, even though one is broken well before hamotzi, and thus one doesn’t haver two full “loaves”. The Talmud considers the concept of “poor man’s bread” is part of the same concept as the meal’s hamotzi, and thus recommends using less than the usual two full loaves, not more by adding a third!Brisk stresses the Rambam not just in study methodology but also as a consequence they also de facto end up giving him more priority in pesaq than would other East Europeans. This gives their process orientation a different skew than the Vilna Gaon’s.

To show how differences in stressing various corners of this triangle play out, let’s look at women bentching with a mezuman. (For a good survey of the halachic issues as a whole, see R’ AZ Zivitofsky’s LegalEase column.) The supported possibilities are:(1) The gemara seems to say that three women who eat together must, just as three men must.(2) The Beis Yosef says they may make a mezuman, and should do so, but are not obligated to.(3) The Mishnah Berurah shifts that preference to concluce that while three women may makes a mezuman, the preference it that they don’t.The minhag avos oriented poseiq would have to explain why the answer is “don’t”, or at most “rarely”. After all, how many of our grandmothers took care to participate in a mezuman in this situation?The aggadic value oriented poseiq would be looking at the asker to see whether her goal is maximizing her avodas Hashem or some kind of adulteration of Torah values, or…. And then, depending on whether his aggadic orientation is toward finding ways to cleave to Hashem or toward the discipline necessary for wholeness, or …. he would have to come up with a ruling.The formalist’s answer would depend on whether he emphasizes Shas (the end of hora’ah), the Beis Yoseif (the end of the previous era with his Shulchan Arukha) or Mishnah Berurah (relatively recent codification).

Interestingly, though, the non-American Briskers (trying to exclude RYBS, RAS, RALichtenstein and the YU community) are NOT true to form on this. By their normal stress on their usual sources, the Brisker Rav and his talmidim should have required zimun for women, for the same reason the Gra does. His fealty to minhag avos and aggadic values are not non-zero, and for him they lead to not quite loyally following the usual sources. Even though in this case it’s a leniency.

This concludes my core thesis about how halakhah is made. Starting from the impossibility of capturing Hashem’s Word to forcing equally valid simplified models. The need to construct and follow a single consistent model. How the mapping is also bound to have to deal with conflicting values even within a single position. The shift over time with how we weigh the sides of these conflicts as the process is less inculcated and more conscious and though out. The three core areas of such issues, the nuances of differences within each, and how they interact: the relative weights of the formal rules used to identify the issues, the common practice that is actually followed and inherited from our ancestors, and choosing a model of the halakhah that fits our aggadic values and the path we are following to sanctity. Hopefully the discussion included enough examples along the way from teshuvos and famous rulings to show that this theory, while not articulated, does explain how halakhah is, in reality, done.I still have enough notes left from the Avodah discussion of these ideas I wish to share to warrant another blog entry of random related thoughts, be”H.

Halachic Process, addenda

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.


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.

A second problem with pesaq shopping is not only must a person be consistent, an object can assume a particular chalos (halachic state). And because we all share the same universe (within limits, pace REED or Slabodka hashkafos), that state can only be one thing. When a rav is proclaiming a chalos, pesaq shopping is impossible. When he is proclaiming only a duty or a prohibition on the person (and not a chalos that causes them) you have some lattitude.Personally, I would think that latitude would require:(1) One must be motivated to perfect one’s avodah rather than adding ease (or glory of being more machmir than the neighbors).(2) One still must go back to the first rav to close the circle. This isn’t so much a chiyuv direcly because of the rules of pesaq, but midinei kavod harav one is better to be inconsistent than to imply disrespect of the first rav.


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, “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.


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?

Ge’ulah and the Halachic Process

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.

Osniel ben Kenaz

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’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“.)

Postmodernism and Mesorah


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)


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.)


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.

Modern Consciousness and Mesorah

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.

Reality vs. Potential

משנה אלו דברים שבין בית שמאי ובית הלל בסעודה בית שמאי אומרים מברך על היום ואח”כ מברך על היין וב”ה אומרים מברך על היין ואח”כ מברך על היום:

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.

Because they did not serve…

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.

In Derekh haChaim (on Avos 1:15), the Maharal analyzes the structure of Avos 1:4-15. We are given the maxims of the zugos, the pairs of nasi (prince/president) and av beis din (ABD; head of the Sanhedrin) of each generation. The Mahral notes a pattern.

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.

Halakhah leMosheh miSinai

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.

Balancing Simplicity and Authenticity

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).

Balancing Community and Authenticity

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?

When speaking to people about getting started in Mussar, one of the more asked questions is how all this middah work differs from a self-help program. Through repetition, I have a pretty standardized answer.

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.

In R’ JB Soloveitchik’s essay “Community”, the Rav defines a basic dialectic in how people relate to the community: On the one hand, the purpose of the collective is to work together for the good of its members. The whole social contract philosophy of government is based on that perspective. On the other hand, the individual’s higher calling is to aid the the community.

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.


Now that the US’s role in Iraq has formally changed, I want to mention something about the city of Falluja. During the early years of US presence in Iraq, we heard a lot about violence there. E.g. four contractors were dragged from their cars, beaten and set on fire — and then their bodies were dragged through the streets and hung off the bridge.

Well, Falluja is well known to those of us who learned gemara, but under its Aramaic name, Pumbedisa, which was a borough of the larger area of Nehardea.

Shemuel (a 1st generation amora) had already established a school in Nehardea, but it didn’t really survive his death. His and Rav’s student (thus 2nd generation), Rav Yehudah [ben Yechzqeil] (220-299 CE), re-established the school in Pumbedisa, which already boasted a large Jewish population. Pumbedisa was the home of one of the two Babylonian academies that gave us the Talmud. (The other was in Sura.)

Rav Yehudah’s style of learning becomes part of Pumbedisa throughout the centuries that the academy survived. Rav Yehudah was dialectical, finding the exact distinctions between similar but not-quite-the-same laws. (See Bava Metzia 38b, Sanhedrin 17b and Chullin 110b.) We also find this identification in a discussion between Rav Sheishes and Rav Amram in Naharda’a (which we saw was the home of the predecessor school whose glory had faded), R’ Sheishes belittles R’ Amram statement by asking “Are you from Pumbedita, where they push an elephant through the eye of a needle?” (Bava Metzia 38b)

Pumbedisa produced very little aggadita (the non-halachic portions of Oral Torah); its names are known almost entirely for halachic statements.

In these two ways, Rav Yehudah sounded to me much like what Brisk later became. Rav Yehudah even determined that the center of Torah study was in Babylonia, and said it was prohibited therefore to leave Bavel for Israel (Kesuvos 111a) — perhaps prefiguring Rav Chaim Brisker’s anti-Zionism. (Gilgulim of the same soul?)

Rav Yehudah seems to have enjoyed exploring the meanings of words and precision in speech, both halachic (Pesachim 2a, Sukkah 50b, Moed Qatan 6b, Beitzah 35b), and as far as I can tell this is all of his aggadic statements (Taanis 9b, Gittin 31b, Nedarim 62b, Chullin 63a). And in regular conversation as well — Rav Nachman compliments him for it.

The Jewish Encyclopedia  conjectures that Rav Zeira rebelled against R’ Yehudah’s new mode of study, since he does leave Pumbedisa and goes to Israel. Adding my own 2 cents: Rav Zeira not only discusses aggadita, he is a figure in a significant number of its narratives.

During the Saboraic (the early ge’onim who lived before the Talmud was fully closed and therefore occasionally appear in it) and Geonic periods, Sura tended to have the more prominent role of the two schools — such as Rav Amaram Gaon and Rav Saadia Gaon. However, Pumbedisa closed later, and its last two heads, R’ Sherira Gaon and R’ Hai Gaon, who are also among the most famous of the geonim. The school finally shut down in 1038 (839 years after its founder’s death), with Rav Hai Gaon’s death, and the role of Sepharadic and Ashkenazic centers of learning came to the fore.

(Actually Sura didn’t really close. Yes, it ceased being the center of learning of geonim, but there was a school for the mainstream in existence with a direct lineage to Sura until 1958. That’s when the Baath Party, makers of Sadam Hussein, shut it down. Sura was the longest lasting institution of learning in human history, operating approximately 2100 years.)

But because Pumbedisa was the only Babylonian academy during this transition, most of our mesorah today comes via rishonim who took Pumbedisa’s Torah with them to Spain, Italy, Germany and France. It was Pumbedisa’s R’ Hai Gaon that taught Rabbeinu Gershom Meor haGolah and started the Ashkenazic line which produced Rashi, the Baalei Tosafos, Chassidei Ashkenaz, etc… He also taught Rav Yaaqov Gaon, who started a school in Kairouan, Teunisia, where Rav Yaaqov’s son, R’ Nissim Gaon (“the Ran”) studied, who in turn passes the torch to R’ Yitzchaq el-Fasi (the Rif), and eventually the Rambam.

And so, Rav Yehudah’s style of learning became the centerpiece of the Babylonian Talmud and of all learning since. (I would like to write in the near future about how the Yerushalmi’s style of learning differs, as seen from a look at its first 5-1/2 mesechtos. Part I, Part II – TBA)

It’s not an exaggeration to say כי מפלוג’א יצאה תורה!

Invoking Tradition

So, I recently described Rav Yehudah’s trip down to Pumbedisa, where he founded a yeshiva where learning was based on the dialectic method, the style of shaqla vetarya (question and answer) that typifies the gemara. So what was happening back in Eretz Yisrael?

To put the same question in a more straightforward way — after learning the first six mesechtos of Talmud Yerushalmi, I would like to discuss some differences in style I noted between the two talmuds.

The Talmud Yerushalmi, despite the name, was written in Northern Israel. In fact, you hear disdain for the “deromai”, the rabbis of the south, those in Judea — including Yerushalayim. As well as those in Babylonia. The work on it begins with Rabbi Yochanan and his student and brother-in-law Rabbi Shimon ben Laqish (“Reish Laqish”), in the very first generation after Rebbe compiled the mishnah. Rabbi Yochanan started out in Tzippori, which was the center of learning and housed the Sanhedrin. However, as a young rabbi, his shiur grew so popular that it caused friction with the older rabbis both due to competition for students and the number of disputes. So rather than hurt them, Rabbi Chanina was named in particular, Rabbi Yochanan moved to Teveryah. (I think something should be made of the point that R’ Chanina, the example of the older generation, is named in past tense, whereas R’ Yochanan has pretty much the future tense version of the same name. The Jerusalem Talmud is thus really a product of his school in Teveryah and the rabbis of either Katzrin (in the Golan) or perhaps Ceasarea.

(Side note: Rabbi Yochanan and Reish Laqish play a parallel role to the one Abayei and Rava do in the Bavli. They started the process that over a century later culminates in the talmud. More so than their being like Rav Ashi and Ravina, who close the vast majority of the text, with only light refinements by the savora’im. However, R’ Yochanan and Reish Laqish appear far more often, at least in the first six mesechtos of the Y-mi, than Abayei veRava do in the Bavli.)

One of the more pronounced differences one sees between the two talmuds is the greater reliance on tradition one finds in the Yerushalmi, and I intend to save other differences for another post.


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

As a metaphor, I am reminded of Rabbi Yehudah haLevi’s description of Greek Philosophy:

(יג) אמר החבר: מה שאתה אומר נכון הוא בנוגע לדת המיסדת על ההגיון ומכונת להנהגת מדינה דת הנובעת אמנם מן העיון אך נופלים בה ספקות רבים ואם עליה תשאל את הפילוסופים לא תמצאם מסכימים על מעשה אחד ולא לדעה אחת כי דת כזאת בנויה על טענות אשר רק חלק מהן יכולים הפילוסופים להוכיח במופת ואלו על אחרות נתן להביא ראיות מספיקות בלבד ויתרן אין להביא עליהן אפילו ראיה מספקת אף כי להוכיחן במופת: (tr. R’ Yehudah ibn Tibon)

13. The Rabbi: That which thou dost express is religion based on speculation and system, the research of thought, but open to many doubts. Now ask the philosophers, and thou wilt find that they do not agree on one action or one principle, since some doctrines can be established by arguments, which are only partially satisfactory, and still much less capable of being proved. (tr. Hartwig Herschfeld)

Rav Yehudah haLevi says that the dependence on reasoning introduces uncertainty, and is a stop-gap  for those who do not have a tradition. Taking this from philosophy to be a metaphor for halachic styles, this parallels Rabbi Yochanan’s view, as opposed to Rav Yehudah’s down in Pumbedisa.


We see this also in terminology. The term used in Bavel for a volume of the talmud is masekhes, from the word that is also used to refer to the network of threads on a loom. Whereas in the Yerushalmi, the more common term is meikhlah, a measure or portion. (E.g. Shevi’is 10:3, Vilna 30b – R’ Yosi rules that someone who knows one meikhla who comes to a new town where they honor him for knowing two, must confess to only knowing one.) None of the implication of constructivism or filling in the holes in the network that one finds in meseches.

Another example is the difference in meaning of the keyword “ta’ama“. This appears so often in the Bavli, that I am still pretty consistently thrown by the Yerushalmi. When the Bavli asks “Mai ta’ama?” it is asking “What’s the reason?” And the answer will be the logic behind the ruling. However, in the Yerushalmi, “Mai ta’ama?” is answered with a citation of the verse that is the source of the law.

The word ba’ei is used in the Bavli in the sense of “wants to know”, introducing a question. It sometimes appears as be’ai lemeimar, “wants to say”, introducting a suggested novellum. In the Yerushalmi, just the word ba’ei is used for both, and the “wants to say” sense is far more common. In light of their distrust of deductions about existing laws, it makes sense that the rabbis of Teveryah would be more prone to mark them. It also would explain why they didn’t find it confusing to use the same keyword for “R’ X wants to know, is the halachah A?” and for “R’ X wants to say the halakhah is A”.  The difference between not knowing at all, and suggesting something without a basis, apparently wasn’t seen as that being all that great. Since otherwise confusion would have driven one of them away from using the word “ba’ei“.

(Linguistic side note: In the Yerushalmi, it seems that words were pronounced with an emphasis on the later syllables, whereas in the Bavli, the emphasis was moved forward. So, the same amora we know in the Bavli as Rav Avin, the Yerushalmi calls Rabbi Bun. Note how in Bavel, the “-i” fell off the end of “Rabbi”, so that the amoraim there are called “Rav”, and in Israel, the leading letter fell off. Similarly, R’ Elazer becomes R’ Lazer, R’ Yehudah – R’ Yuda, or sometimes, with a more Greek ending, R’ Yudan, but in either case, the hei slurs away. More dramatic — and often confusing — is when the amora the Bavli refers to as Rav Ila is called Rabbi Lo, and one has to guess whether R’ Ila is being quoted, or Rebbe is saying something starting with the word “lo” [no]. We also see alefs simply dropped out of the spelling of words and other inconsistencies, but we don’t know how many of these are simply do to inferior transcription. Unlike what I noted about names, where there is a clear pattern.)

Quoting Style:

So, given the value placed on quotes and citations, the Yerushalmi sometimes quotes entire sections repeatedly. Not just repeating the one opinion, but including the whole dialog. Usually, this is at most two or three repetitions of the same dialog in the same mesechta, each time to bring out a different point related to the current topic. But a stark example, in Mes’ Shevi’is daf 10, an entire segment is repeated in two versions that are only trivially different, Rabbi Yaaqov bar Zevidei’s version vs. Rabbi Mana’s:

1) אמר רבי יעקב בר זבדי קומי רבי אבהו לא כן אמר רבי זעירא ורבי יוחנן בשם רבי ינאי רבי ירמיה רבי יוחנן בשם ר”ש בן יוצדק נמנו בעליית בית נתזה בלוד על כל התורה מניין אם יאמר עכו”ם לישראל לעבור על אחת מכל מצות האמורות בתורה חוץ מעבודה זרה וגילוי עריות ושפיכת דמים יעבור ולא יהרג הדא דתימר בינו לבין עצמו אבל ברבים אפילו מצוה קלה לא ישמע לו כגון לולינוס ופפוס אחיו שנתנו להם מים בכלי זכוכית צבועה ולא קיבלו מהן אמר לא מתכוין משמדתכון ולא איתכווין אלא מיגבי ארנונין כמה הם רבים רבנין דקיסרין אמרי עשרה דכתיב (דף י:) (ויקרא כג) ונקדשתי בתוך בני ישראל>רבי אבונה זעירא חמנוניה פרי חורי חמרא בשבתא רבי יונה ורבי יוסי הורין מפי לארסקינס בשובתא
2) אמר רבי מנא קשיתי קומי רבי יונה אבא לא כן אמר רבי זעירא רבי יוחנן בשם רבי ינאי רבי ירמיה רבי יוחנן בשם ר”ש בן יוצדק נמנו בעליית בית נתזה בלוד על כל התורה כולה מניין אם יאמר עכו”ם לישראל לעבור על אחת מכל מצות האמורות בתורה חוץ מן העבודה זרה וגילוי עריות ושפיכת דמים יעבור ולא יהרג הדא דתימא בינו לבין עצמו אבל ברבים אפילו מצוה קלה לא ישמע לו כגון לוליינוס ופפוס אחיו שנתנו להם מים בכלי זכוכית צבועה ולא קיבלו מהן אמר לא אתכווין משמדתון ולא אתכווין אלא מיכל פיתא חמימה כמה הם רבים רבנן דקיסרין אמרין עשרה דכתיב (שם) ונקדשתי בתוך בני ישראל

This shows the significance given to precise citation. Or, this segment from Maaseros 5:3, Vilna 24b. Notice how not only is the mishnah under discussion re-quoted before Rabbi Avohu’s comment is repeated, but R’ Avohu’s introduction, that sometimes the idea he is about to give is said in the name of Rabbi Lazer and sometimes in the name of Rabbi Yossi bei Rabbi Chanina is also repeated just a couple of lines later — all to make the two word point at the end “והוא שהחמיץ” that when Rabbi Yehudah says that water that was run through wine dregs that weren’t tithed and didn’t even increase in volume is obligated in maaser anway (because it was changed by the maaser-requiring dregs), it’s only if the mixture fermented.

משנה המתמד ונתן מים במידה ומצא כדי מדתו פטור.  רבי יהודה מחייב.  …
גמרא א”ר אבהו זימנין אמר לה בשם רבי לעזר זימנין אמר לה בשם רבי יוסי בי רבי חנינא והוא שהחמיץ. תמן תנינן התמד עד שלא החמיץ אינו ניקח בכסף מעשר ופוסל את המקוה.  משהחמיץ ניקח בכסף מעשר ואינו פוסל את המקוה.  מתני’ דרבי יודה היא דתנינן תמן המתמד ונתן מים במידה ומצא כדי מידתו פטור רבי יודה מחייב.  אמר רבי אבהו זמנין אמר לה בשם רבי לעזר וזמנין אמר לה בשם רבי יוסי בי רבי חנינה והוא שהחמיץ.

The Ridvaz comments on this (Maaser Sheini 4:1, vilna pg 28a “תםן ללא יתיר פיריי…”:

פי׳ דהוא שייך למס׳ שביעית פ״ד דשם פריך מהברייתא ההיא לענין שביעית ומשני שם דתננן דלא יתיר פירוי כו׳ ואגב גררא דמביא הברייתא מביא גם כאן זאת כדרך הש״ס הזה  ככמה מקומות כידוע לדרגילין בו :

Meaning, that this is relevant to tractate Shevi’is ch. 4, because there it asksand it answers there… Because of “dragging”, that [once] it brought the beraisa it also brings here [this following discussion], as is the way in this talmud in numerous places, as is known to those who are used to it.

And then there is the opposite extreme — instead of repetitious verbiage in a desire to preserve the older discussion intact, the gemara will instead refer to opinions with the briefest of citations, leaving the commentaries scrambling to chase down what is being referred to. Sometimes, to wildly different conclusions. “A machloqes between what Rabbi Yehudah said on Sukkah and Rabbi Yosi said in Menachos.” Or, “since we see in the famous case of …” (without telling you the case), etc…

Similarly too, the Yerushalmi quotes the tannaim in the Tosefta regularly, far more often than the Bavli.

What one is clearly listening to is a group of rabbanim who follow very closely the exact wording of the statement. And knowing that they relied on studying that wording, they took caution to preserve it.

Things not said:

Therefore, the use of using reasoning to fill in gaps in our knowledge about the din under discussion occurs far less often. Many discussions end with an open question, rather than extrapolating from his words what a tanna probably would have said. Again, this isn’t only because the kind of reasoning Rabbi Yehudah developed was with him in Bavel. As we will see in another post, the Yerushalmi does engage in its own style of reasoning. (To give a teaser: there is more use of analogy to apply the parallel of a din to a different area of halakhah.)

Rather, I think this willingness to leave the question open is because they were very aware of the gap between the actual quote and a deduction. Also, tampering with the quote with suggestions contaminates the repetition process — they are actually detrimental to what the Yerushalmi is trying to do.

One amora who particularly suffered from this was Rabbi Yirmiyah. Every several pages or so, Rabbi Yirmiyah would propose some implausible case, something that would measure the limits of the just-quoted halakhah. In fact, he only arrives in Eretz Yisrael after being thrown out of the beis medrash in Bavel for doing this one time too many (Bava Basra 23b). For example, ֛Maaseros 3:4, 17b discusses how many fruit a picker may hold such that it still qualifies as a snack, as one may only snack in the field from food that hasn’t yet had terumah and maaser removed. R’ Yirmiyah asks about the case where the picker juggles the olives. Does the one in the air count as being “held”? In general, these questions don’t get answered.

Citation Culture:

Less directly connected, but I think part of this culture, is the Yerushalmi’s greater emphasis on finding sources in general.

For example, there is a halachic principle “ein sheliach lidvar aveirah — there are no messengers (or: proxies) for something that is a sin.” The Bavli’s explanation is logical, “the words of the Master, the words of the servant, which do you listen to?” Obviously, when given a choice between Hashem’s law and a person’s order, the Torah comes first. Therefore, someone who accepts such an appointment is culpable for making the wrong choice.

In the Yerushalmi (Terumos 35a), the source is a verse. “שליח לוקה והוא פטור דָּ֣ם יֵֽחָשֵׁ֞ב לָאִ֤ישׁ הַהוּ ולא לשולחיו – the messenger is punished and he [the sender] is not culpable. ‘[The murder] will be considered blood for this man’ — and not the one who sent him.”

We see this more often in the greater emphasis the Yerushalmi gives asmachtos, finding references or mnemonics for rabbinic law in the Torah. For example, by Torah law, there is no minimum for terumah. However, according to Beis Hillel, the Rabbis set that the miserly must give at least 1/60th to a kohein, the norm would be to give 1/50th, and the generous would give 1/40th. According to Beis Shammai, the rabbinic range for terumah was instead 1/50th, 1/40th and 1/30th, respectively.  The Yerushalmi (Terumos 4:3, vilna 19b-20a) textually supports all six measures with asmachtos.

כתיב ששית האיפה מחומר החיטים וששיתם את האיפה מחומר השעורים יכול תורם חיטים א’ משלשים ושעורים אחד מששים ת”ל וכל תרומת שיהיו כל התרומות שוות שמואל אמר תן ששית על ששיתם ונמצא תורם אחד מארבעים בינונית אחד מחמשים א”ר לוי כתיב וממחצית בני ישראל תקח אחד אחוז מן החמשים כל שאתה אוחז ממקום אחר הרי הוא כזה מה זה אחד מן החמשים אף מה שאתה אוחז ממקום אחר הרי הוא כזה והרעה אחד מששים דכתיב וששיתם את האיפה מחומר השעורים. בית שמאי אומרים משלשים וששית האיפה מחומר השעורים בינונית מארבעים מן הדא דשמואל והרעה מששים מן הדא דר’ לוי דאמר רבי לוי בר חינא כל המוציא מעשרותיו כתקנן אינו מפסיד כלום מה טעמא ועשירית החומר יהיה האיפה מן החומר

Last, the Bavli will only cite a mishnah if it provides a clear source as to the law under discussion. In what I think is another instance of “Citation Culture”, the Yerushalmi will quote a mishnah that hints at the law, even if it is not usable as an indisputable proof. On Terumos 6:1, vilna 31b, Rabbi Yosi quotes a mishnah as saying “that which grows from [planting] terumah is terumah“. If someone plants terumah wheat, the entire resulting crop must be given to kohanim as terumah. (This is only rabbinically. Therefore, the Torahitic obligation of tithing still applies to the crop, and must be given by the kohanim.) Rabbi Yosi uses this mishnah to show that it’s specifically when one plants terumah itself. If someone consumes terumah and then has to reimburse the kohanim, “that which goes reimbursement for terumah is not terumah” as the mishnah speaks of terumah specifically, not reimbursements.

(One might see this as reading more into a source than what is there, thus potentially corrupting the purity of the transmitted quote. In short, as defying the entire thesis of this post. I rather see it as an implication inherent in the text, but one that simply doesn’t reach the unimpeachable source level of certainty, and thus in line with trying to find a connection to tradition for every existing law.)

Coming attractions:

In the first installment I argued that the style of dialectic (shaqla vetarya) was honed by Rav Yehudah, the founder of the yeshiva at Pumbedisa. In this essay, I tried to show how rarely the Yerushalmi engages in this argument style, instead preferring a dependency on existing sources. Next, I hope to illustrate the modes of reasoning one does find in the Yerushalmi insead.

On Nets and Pieces

The story so far: In the first post, I suggested that it was Rav Yehudah, founder of the Yeshiva in Pumbedisa, who really developed the style of shaqla vetarya (dialectic) that we find in the Talmud Bavli. Which implied that we wouldn’t expect to find the similar argument style in Israel. In the second post, I tried to show how in the Talmud Yerushalmi they not only didn’t use the same dialectic style, they give every appearance of eschewing it. Preferring instead a system of learning more centered on the transmission of traditions, an emphasis on quotes. Therefore the Israeli amoraim not only had less reason to engage in such dialectics, even when they could not resolve a question by dialectic they refused to. In fact, they often ridicule the Bavliim and their circuitous lines of reasoning. Such extrapolation would adulterate memory of the tanna’s actual statement.

This does not mean, however, that there is a dirth of logical argument in the Talmud. Rather, the argument is of a very different style. That will be the topic of the majority of this post. But first, a discussion of how the Yerushalmi does handle unanswered questions.

I already mentioned the difference in nomeclature between the Bavli and the Yerushalmi. What the Bavli calls a mesechta, the Yerushalmi calls a meikhla. To translate: The Bavli considers one volume of Talmud to be a “net”, with gaps that the amoraim must fill in. The Yerushalmi considers it a “piece”, and as we’ll see, their analysis involves more connected the pieces to a larger whole.

Lateral Reasoning:

Here is an example of a style of reasoning one would find much more readily in the Yerushalmi than in the Bavli:

  1. רב הונא אמר: ג’ שאכלו זה בפני עצמו וזה בפני עצמו וזה בפני עצמו ונתערבו מזמנין.
  2. רב חסדא אמר: והן שבאו משלש חבורות.
  3. על דעתיה דרבי זעירא וחבורתיה: והן שאכלו ג’ כאחת.

רבי יונה על הדא דרב הונא הטביל ג’ איזובות זה בפני עצמו וזה בפני עצמו ונתערבו מזה בהן.

רב חסדא אמר והן שבאו מג’ חבילות.

על דעתיה דר’ זעירא וחבורתיה והוא שהטביל שלשתן כאחת.

אין תימר אין למידין אזוב מברכה ואנן חזינן רבנן קיימין בסוכה וילפין מטיט הנרוק.  כיי דתנינן תמן הרחיק את הסיכוך מן הדפנות שלשה טפחים פסולה הא פחות מיכן כשירה מהו לישן תחתיו התיב רבי יצחק בן אלישיב הרי טיט הנרוק משלים במקוה ואין מטבילין בו אף הכא משלים בסוכה ואין ישינין תחתיו.

  1. Rav Huna said: Three who eat, this one by himself, this one by himself, and this one by himself, who then mix together should bentch with a mezuman.
  2. Rav Chisda said: But this is [only] when they come from three [separate] groups [of three people, so that each ate with an obligation of zimun, even if from different groups].
  3. According to the logic of Rabbi Zei’ira and his friends: But [the only may make a zimun] when they ate together.
  1. Rabbi Yonah [commented] on that which Rab Hunah [was just quoted as saying]: If [the kohein] dipped three hyssop sprigs [into the water made with the ashes of a parah adumah], this one by itself and this one by itself, and mixed them [the hyssops] together, one may sprinkle [the person needing taharah] with them.
  2. Rav Chisda said: But this is [only] when they come from three [separate] groups [of three sprigs, so that each sprig was dipped as part of a group of three, even if different groups].
  3. Acording to the logic of Rabbi Zei’ira and his friends: But [the only may may be used for sprinkling parah adumah water] when they were dipped together.

- Yerushalmi Berakhos 7:1, 51b

The Yerushalmi draws a parallel between what could have been two separate disputes. One was about zimun, saying the opening blessing before bentchin, and the other about the hyssop used to sprinkle the water from a parah adumah to purify them after contact with a dead body. Both require a group of three. Typically, three men who ate together and now wish to bentch together, or three sprigs that were one bunch when they were dipped as well as when the person is sprinkled.

Rav Hunah says that a group of three is defined by the time of the mitzvah. Therefore, three people could eat separately, and Rabbi Yonah extrapolates that he would say the three sprigs could be dipped separately — as long as they are together at the time of bentching or sprinkling, respectively.

Rav Chisda, who speaks for himself in both disputes, feels that while they only need to be a group for the mitzvah itself, to be a member of the group requires being part of an obligating group when doing the preparation. Therefore, three men who each ate alone could not combine to make a zimun, only three men who each ate in a group of at least three. But they could recombine to create a new group of three for zimun. Similarly, one could take a sprig of hyssop out of three different groups to make a new group, because such sprigs were both dipped as part of a group of three and used for sprinkling as part of a group. This would mean that if a kohein had three people before him to sprinkle and dipped three large bunches of hyssop for them, and then along comes a fourth person, the kohein can redivide the hyssop into four groups and sprinkle all four.

Rav Zeira and his peers require that the group be the same group throughout. You can’t recombine people from different zimun groups, or sprigs from different bunches to make a new one.

This is “horizontal” reasoning. We saw one dispute, we are trying to find how it relates to other topics. The search is for a general philosophy of some aspect of halakhah.

Logical discourse in the Bavli is far more “vertical”, drilling down into the details of the particular decision before us, finding how it can be understood in an internally consistent way. What does either opinion do with the other’s proofs and source texts, and the like.

A second example, from Terumos, vilna 13b, that I will treat more concisely:

תמן תנינן: כביצה אוכלין שהניחן בחמה ונתמעטו, כן כזית מן הנבילה, וכעדשה מן השרץ, כזית פיגול, כזית נותר, כזית חלב — הרי אילו טהורין.
דרומאי אמרי: והוא שיהא כזית מעיקרו.
ר’ יוחנן ור”ש בן לקיש תריהון אמרין: ואע”פ שאין כזית מעיקרו.
תמן תנינן: אמרו לו, “אף היא היתה חסירה או יתירה.” מני אמרו לו? ר”מ: פעמים שהשאור יפה והוא תפוח. הא אילו סולת היתה צמוקה, ועכשיו שהוא שאור יפה והוא תפוח, את רואה את התפוח כילו צמק ונראית חסירה. ופעמים שהשאור רע, והוא צמק. הא אלו סולת היתה תפוחה, ועכשיו שהשאור רע, והוא צמוק את רואה את הצמק כילו תפח ונראית יתירה.
על דעתיה דר’ ירמיה דרומאי ור’ יוחנן ור”ש בן לקיש שלשתן אמרו דבר אחד ביתירה. על דעתייהו דר’ יונה ור’ יוסי שלשתן אמרו דבר אחד בחסירה. אילין דבר פטי בשלון אורז אנשין מתקנתה יתיה חברייא סברין מימר ייסב חיי לו לקביל מבשל אמר לון ר’ יוסי אף אנא אמר כן למה שדרכו לתפוח:

Here the gemara links together three statements, showing how they have a common theme. In all three cases, the issue is whether we measure intial volume, current volume or whether the fact that it is normal to go to that current volume should make a difference. This is seen as being a common principle whether it’s something that dries up and shrinks, or something that soaks up water and bloats, whether we are speaking of tum’ah or of tithing rice.


Suppose you saw a discussion in which the following distinction is made with regard to food bought with money that had the sanctity of maaser sheini placed upon it. (In lieu of bringing the second tenth of one’s fruit to Yerushalayim, the sanctity was transfered to money, which is then used upon arrival to buy food to be eaten there.)

In one ruling, shelamim which one bought with maaser sheini money does not have the sanctity of maaser sheini, only that of the offering. In another, if a kohein buys with such money terumah, the result is that the food bought is now both terumah AND maaser sheini.

Vus iz der chiluq? (What’s the difference between the cases of maaser sheini and terumah?)

There is a mitzvah to buy a qorban shelamim with maaser sheini money. Therefore, if one buys a shelamim with maaser money one completed the job of handling maaser. The chalos sheim maaser sheini (the fitting under the label of maaser sheini) falls off with the purchase.  However, there is no such mitzvah of buying terumah over any other food, and therefore it’s maaser sheini until consumed or as long as it remains edible.

The way I phrased it, this discussion sounds like 19th century lomdus, the style of logic they used for analyzing the Bavli and rishonim. However, the above is a description of the discussion in the Yerushalmi at the top of Maaser Sheini 16a (3:2). (There is also a similar discussion about when a law of maaser sheini ends on Maaser Sheini 1:2 5b.)

What the Brisker method does in its lomdus is divide  laws into categories, often using and reusing the same set of mechanisms. In the above, I invoked the Brisker idiom of “chalos sheim“, when something enters or leaves a halachic state (literally, when a label falls upon an object). Other such meta-principles: mitzvos that depend on the gavra, the subject doing the verb, vs. those that depend on the cheftza, the object. The distinction between a discussion of the pe’ulah, the action, and the chalos, the change in halachic state. Etc…

In Brisk, these rules are used to analyze a specific halakhah. Why do the Rambam and Tosafos disagree? Does one say the chalos comes with the pe’ulah and the other not? Does one see the obligation on the subject’s doing it, while the other sees it on the object having it done (gavra vs cheftzah)? Brisk drills downward.

However, these rules also have an orthoganal value — they are in common across a wide variety of halakhos. To the Brisker, these are tools for finding chaqiros, distinctions, between similar cases that have different rulings, or between one opinion and another. In the Yerushalmi, tools like those used in Brisk and other 19th century Lithuanian yeshivos are a the product of this same notion of lateral analysis. They are principles of mechanics seen in numerous  ways of connecting the law to others than use the same mechanism.

Another example, this one from Pei’ah 3:5, Vilna ed. pg 16a:

משנה: המוכר קלחי אילן בתוך שדהו, נותן פאה מכל אחד ואחד. אמר רבי יהודא: אימתי? בזמן שלא שייר בעל השדה. אבל אם שייר שדהו הוא נותן פאה לכל:
גמרא: עד כדון כשהתחיל לקצור. אפי’ כשלא התחיל לקצור?
נישמעינה מן הדא: לקח גז צאנו של חבירו. אם שייר המוכר, המוכר חייב. ואם לאו, הלוקח חייב. ר’ ירמיה בשם ר’ יוחנן: דר’ יהודא היא.
שנייא היא תמן בין שהתחיל לגזוז צאנו בין שלא התחיל לגזוז. וכא, לא. שניי’ ליה, בין שהתחיל לקצור, בין שלא התחיל לקצור.
מ”ט דר”י? משום דחובת הקציר בקמה, או משום דמוכר לו חוץ מחובתו?
נישמעינה מן הדא: לקח גז צאן חבירו. אם שייר המוכר, המוכר חייב. ואם לאו, הלוקח חייב. א”ר ירמיה בשם ר’ יוחנן: דר’ יהודא היא.
אית לך למימר: תמן, שחובת קציר בקמה לא משום דמכרו לו חוץ מחובתו וכא במכרו חוץ מחובתו.
מה נפק מביניהן?
  1. עבר הלוקח ומפריש. אין תימר משום שחובת הקציר בקמה, הפריש הפריש. ואין תימר משום דמוכר לו חוץ מחובתו, הפריש ונוטל ממנו דמים.
  2. נשרף חלקו של מוכר. אין תימר משום דחובת קציר בקמה, נשרף נשרף. ואין תימר משום במוכר לו חוץ מחובתו, נשרף נוטל ממנו דמים:

Mishnah: Someone who sold tree stalks [i.e. tree trunks or stalks of a plant] from within his field [where the pei’ah, the corner of the field, was not left for the poor to gather], he must give pei’ah from each stalk. Rabbi Yehudah said: When is this? When there is nothing left by the owner of the field [for himself]. But if he did leave something of his field, he gives pei’ah [from that] for the whole.

Gemara: Until now [we were only considering] when he already began to harvest [the crop produced when he started selling the trees themselves]. But what if he didn’t start to harvest?

We hear [this implication] from this [following ruling]: Someone who buys the shearings from his friend’s flock [without the first shearing first being given to a kohein]. If the seller left any [for himself], then the seller if obligated [to give the kohein replacement wool]. If not, the buyer is obligated. Rabbi Yirmiyah said in the name of Rabbi Yochanan that this is Rabbi Yehudah’s [position].

It makes a difference over there whether he began to shear his sheep or whether he did not begin to shear. Here, could it make no difference whether he began to harvest [the stalks] whether he did not begin to harvest?

What’s the reason of Rabbi Yehudah — Is it because the obligation with respect to harvesting [and pei’ah] is with standing [grain]? Or is it that he sold it to him outside of his obligation?

We hear [this implication] from this [following ruling]: Someone who buys the shearings from his friend’s flock [without the first shearing first being given to a kohein]. If the seller left any [for himself], then the seller if obligated [to give the kohein replacement wool]. If not, the buyer is obligated. Rabbi Yirmiyah said in the name of Rabbi Yochanan that this is Rabbi Yehudah’s [position].

You must [therefore] say: Over there, it is where the obligation of harvesting is when it’s still standing, and not because he sold it ouside of his obligation, [whereas] here he sold it outside of his obligation.

What is the [pragmatic] distinction between them? …

Notice here a number of things, touching on much of the past two posts in this series.

First, there is a full repetition of a quote rather than abbreviating it in the second iteration. The latter risks compromising how it is passed down in the future, so this would be against the Yerushalmi’s citation culture.

Second, note the lomdisher use of making a distinction based on when the obligation applies. Why does the law of pei’ah from harvested grain that is sold to another differ than the law of reishis hagaz that was sold rather than being given to a kohein? Why is it that in the case of pei’ah it makes no difference whether or not he began to harvest, but when it comes to reishis hagaz it does make a difference whether or not he began to shear? And the difference is that reishis hagaz only comes into effect after the shearing. An issue of when the halachic category takes hold.

Third, note that this lamdus is being used to compare to disparate laws. Lateral reasoning.