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The History of Halakhah, Views from Within: Three Medieval Approaches to
Tradition and Controversy
by Moshe Halbertal
Copyright 1994 by Moshe Halbertal
Table of Contents
Introduction
A.
The Retrieval View
B.
The Accumulative View
C.
The Constitutive View
Introduction
Few texts within halakhic
literature attempt to describe the history of halakhah. The ones that do, vary
from short comments focusing on a particular period to comprehensive and
ambitious attempts to structure a chain of knowledge leading from Sinai down to
the author's own time. Prominent examples of such text include: Igeret R. Shrira
Gaon, the introduction by R. Nissim Gaon to his Sefer ha-Mafteach le-Manulei
ha-Talmud, Shmuel ben Hofni's Mavo la-Talmud, Abraham ibn Daud's Sefer
ha-Kabbalah, Maimonides' introduction to Perush ha-Mishnah and the Mishneh
Torah, Meiri's introduction to Avot and to Berachot, Sh'arei Zion by Yitzchak
di-Letas, the Introduction by R. David ha-Kokhavi to Sefer ha-Batim, Chisdai
Crescas' introduction to Or ha-Shem, Meggilat Yochasin of Abraham Zakut,
Maharshal's introduction to his commentary on Hullin, Naziv's Hakdem Sheelah -
his introduction to his commentary on Sheiltot, and few others. Among the
concerns expressed in these texts are: establishing an order of transmission of
knowledge; analyzing crises within those complicated chains; understanding and
describing the emergence of debates and controversies within the body of
halakhic knowledge; establishing relations of authority between different
generational layers of the tradition. My aim in this essay is not to examine
these texts in constructing a history of halakhah, although many of them would
be of great value in such an endeavor. My question, is rather: how is the
history of knowledge viewed by such texts themselves, and what guides them in
their description of the history of the body of halakhic knowledge? The aim of
this essay is thus an analysis of certain moments of self-reflection articulated
by halakhic authorities concerning the history of halakhic learning, focusing
not on the history of this body of knowledge per-se, but as it is viewed from
within.
There is yet another more basic question which bears
far-reaching implications on our analysis. The history of halakhah is not a
traditional subject treated within the framework of halakhic learning [this
statement may be true about any historical writing within traditional Jewish
sources], and for that reason, moments of self-reflection on history of halakhah
in the writings of halakhic authorities are both rare and precious. Since
articulating any view whether partial or comprehensive of the history of
halakhic learning is not part and parcel of halakhic study itself, in addition
to understanding the substantive picture outlined by an author, we must address
a more fundamental issue: i.e., why the author is engaged in such an attempt in
the first place, and what connection might be between the way an author
structures the history of halakhah and his own work.
I would like to
examine three radically different models of the history of halakhah as they are
presented from within by medieval authors: Abraham ibn Daud, who follows Geonic
tradition; Maimonides who diverts from this tradition; and Nachmanides, who does
not offer a complete account of the problem but does seem to have made some
important comments leading in a new direction, to be developed further by his
students. This controversy concerning structuring the history of halakhic
knowledge is rooted in alternative theological concerns, which in turn help to
recreate the histories of knowledge. I will like to show how the various methods
of structuring the history of halakhah as told from within, affect basic notions
of the halakhic process such as the role of legal reasoning, notions of
authority, the conception of halakhic "truth" and the place of controversy and
its status. The models sketched by each author shape and reformulate the
fundamental aspects of the system in a completely different manner.
A. The Retrieval View
Let us turn, first of
all, to the view I will entitle the 'retrieval model' held by Abraham ibn Daud,
who follows a long tradition among the Geonim. According to this model, the
halakhic process is understood as a orally trasmitted ody of revealed halakhah
from generation to generation. Moses received the entire written and oral Law,
and at its source, tradition was complete and perfect. The entire halakhah was
revealed and transmitted to us through a continuous unbroken chain of scholars
who received from one another. Through time, forgetfulness and carelessness (due
also to harsh political circumstances) caused this knowledge to erode. Halakhic
reasoning became essential, not merely to organize, justify and transmit given
knowledge, but as a vital tool in the desperate attempt to reconstruct, through
argumentation, the lost portions of a once complete body of knowledge. The main
advantage of such a view lies in the elimination of human creativity in the
halakhic process and the grounding of the oral Law in God's revelation. From
that perspective, there is no difference between the source of authority - both
the oral and the written Torah are founded on direct revelation. It is no wonder
that the birthplace of some of the most important articulations of this picture
are created in the context of anti-Karaite polemics.[1]
This
view of the history of halakhic knowledge, also determines the aim of writing a
history of halakhah. The task of such an undertaking is to establish the chain
of transmission as continuous with no lapses from Moses to the author's own
days. It thus retraces the present halakhah to its source and grounds it in
God's revelation to Moses. This aim is expressed in the programmatic statement
made by Abraham ibn Daud in his introduction to Sefer ha-Kabbalah:
The
purpose of this Book of Tradition is to provide students with the evidence that
all the teachings of our rabbis of blessed memory, namely, the sages of the
Mishnah and the Talmud, have been transmitted: each great sage and righteous man
having received them from a great sage and righteous man, each head of an
academy and his school having received them from the head of an academy and his
school, as far back as the men of the Great Assembly, who received them from the
prophets, of blessed memory all. Never did the sages of the Talmud, and
certainly not the sages of the Mishnah, teach anything, however trivial, of
their own invention, except for the enactments which were made by universal
agreement in order to make a hedge around the Torah.
Sefer ha-Kabbalah
seeks to establish the chain of transmission beyond any doubt , and to prove
that asides from some takanot, there is no human component in the halakhah. Ibn
Daud's view which is certainly connected to anti Karaite polemics continues a
long trend in Geonic writings; all of them subscribe to the same view of
structuring the history of halakhah and perceive the project of writing such a
history as a confirmation of the ongoing chain of transmission.
R.
Shrira Gaon structured the history of halakhah on the same model, although his
account is more complex than the mere mention of the links in the chain of
tradition. The question posed to R. Shrira Gaon by Kiruan community articulates
the problem: the overwhelming presence of R. Akiba's students in the Mishnah and
the fact that the Mishnah was written only in the days of R. Yehudah the Prince,
would seem to support the Karaite challenge that the Mishnah is a late invention
of the rabbis. In essence, the question troubling the Kiruan community was: If
the Mishnah is a received tradition, why did the early sages leave so much of
the task of formulating and presenting it in the hands of later generations? In
his response, R. Shrira Gaon cannot merely refer to a chain of transmission, but
must address the troubling challenge of Karaism to such a view; the model he
formulates is thus complex. Although he adheres to the contention already voiced
by Sa'dia that the Mishnah is a received tradition,[2]
he claims that the particular halakhot were ordered and formulated in different
versions by different schools and that R. Yehudah the Prince based his Mishnah
on R. Akiba's version. The halakhot taught by different sages were essentially
identical but each had his own manner of presenting and ordering them. The
presence of Akiba's students in the Mishnah is not a proof that the halakhot are
their own invention but that their version of the Mishnah serves as the basis of
R. Yehuda's Mishnah. According to R. Shrira Gaon, there is a human component to
the oral tradition of halakhah , but this component affects only the version of
the norms and the method of their organization, but not their content.[3]
This variation on the strict notion of tradition enables R. Shrira to explain
the presence of relatively late generations in the Mishnah. In his introduction
to Mafteach le-Man'ulei ha-Talmud, R. Nissim Gaon follows the same line of
argument: "..We have no need to bring evidence which proves the authenticity of
the sages' tradition (kabbalah) ...since our predecessors made it clear, but I
will clarify the time in which the Mishnah and the Talmud were written and I
will show that the preserved kabbalah and tradition never faded from the
nation.." R. Nissim then describes the Mishnah in the following terms: "He (R.
Yehudha the Prince) made up his mind to gather everything they had in their
hands from the tradition ...".
The main problem with such a model is the
presence of controversy within the body of halakhic knowledge. If halakhah is
independent of the fluctuations of human legal reasoning which naturally produce
controversy, why are there controversies in the Mishnah and Talmud? This problem
is immediately raised by ibn Daud, and his answer is that neglect on the part of
a certain segment in the chain gave rise to controversy:
Now should
anyone infected with heresy attempt to mislead you, saying: "It is because the
rabbis differed on a number of issues that I doubt their words," you should
retort bluntly and inform him that he is "a rebel against the decision of the
court"; and that our rabbis of blessed memory never differed with respect to a
commandment in principle, but only with respect to its detail; for they had
heard the principle from their teachers, but had not inquired as to its details
since they had not waited upon their masters sufficiently. As a case in point
they did not differ as to whether or not it is obligatory to light the Sabbath
lamp; what they did dispute was "with what it may be lighted and with what it
may not be lighted." Similarly, they did not differ as to whether we are
required to recite the Shema evenings and mornings' what they differed on was
"from when may the shema' be recited in the evenings" and "from when may the
Shema' be recited in the mornings." This holds true for all of their
discussions.[4]
In other words, ibn Daud argues, all halakhic knowledge was available
and explicits in the earliest stages of tradition, and it is the students, who
did not clarify the complete details of all the rules from their teachers, who
are to blame for the crisis in the transmission of tradition and for the rise of
controversy. . From then on halakhic reasoning evolved as an attempt to uncover
a lost body of knowledge due to students' neglect.
The existence of
controversy obligates authors who hold such a model to recognize some sort of
crisis within the chain of transmission. It includes an implicit dangers as
well. Demonstrating the presence of crisis, threatens to cast doubt on the
credibility of the process of transmission as a whole. If both neglect and
forgetfulness eroded a given body of knowledge transmitted from Moses onwards,
what guarantees the credibility of the core of tradition itself? Authors who
hold such a view naturally tend to marginalize the extent of controversy within
halakhah in order to preserve the credibility of the chain of transmission. Ibn
Daud claims that no controversy exists concerning the main body of
halakhah:"...Our rabbis of blessed memory never differed with respect to a
commandment in principle, but only with respect to its detail".
The
picture of the history of halakhah presented by the Geonim reappears in later
constructions of the history of halakhah. In Nieto's Mate Dan (ha-Kuzari
ha-Sheni), the main elements of ibn Daud's account are repeated. Nieto cites
the talmudic passage which accounts for the emergence of controversy: "When the
disciples of Shammai and Hillel who had insufficiently studied , increased in
number, disputes multiplied in Israel and the Torah became as two Torot (T.b.
Sanhedrin 88b). He offers the following explanation: "'They studied
insufficiently' i.e., they didn't stay with their teachers long enough to
receive the interpretation of the principles and thus controversy emerged" (p.
63) One innovative element in Nieto's account - although it naturally follows
the internal logic of the scenario - is his conception of the authority of the
ancients. According to such a model, the source of the authority of early
generations of sages over sages of later generations is in the proximity of the
earlier generations to the first stages of the transmission before the process
of erosion was enhanced. Karo's argument that the authority of the Mishnah stems
from the legally binding agreement made by the Amoraim not to argue with the
Tanaim, is explicitly rejected by Nieto. He contents instead that: "..since they
[the Amoraim] thought that all the words of the Tanaim are received (kabbalah)
and because the Tanaim had received from earlier generations there was no
controversy in what they said" (ha-Kuzari ha-Sheni p. 67).[5]
The retrieval picture of the history of halakhah raised by the Geonim,
and articulated by ibn Daud and later authors, thus shapes basic elements of the
halakhic process: the account of the emergence of controversy, a clear
conception of authority and a definite secondary role for halakhic reasoning.
All these are challenged by Maimonides, who presents a different structure of
the history of halakhic knowledge.
B. The Accumulative View
Maimonides
departed from the Geonic picture of the history of halakhah and from ibn Daud's
formulation.[6]
He was the first to claim that alongside the received tradition from Moses, the
sages introduced new interpretations of the Torah of their own invention. The
halakhic process in Maimonides' eyes, is therefore accumulative, each generation
adding substantive norms derived by their own reasoning to the given, revealed
body of knowledge.[7]
In the previous model, the relation between halakhic reasoning and revelation
was that of an attempt to uncover lost data, or to attach received oral material
to its source in the written Torah. In Maimonides' view, the relation is one of
derivation. The sages, equipped with rules of derivation, deduce from the given
material of revelation - both oral and written- new norms which in turn become
part of the accumulative material of halakhic knowledge. Only in relation to the
newly derived halakhot controversy emerges, since these hermeneutical inferences
are not strictly logical inferences where a deduction necessarily follows from
given premises.[8]
In the received normative material transmitted by the sages of each generation
controversy according to Maimonides never occurs. In his view, the phenomenon of
controversy is therefore restricted to the normative material which is newly
derived by hermeneutical inferences.[9]
On this point, in addition to his unique view of the accumulative nature of the
history of halakhah and the power of derivation inherent in hermeneutical
meta-norms, Maimonides diverts from ibn Daud's account of the emergence of
controversy. Maimonides issues a direct and blunt attack on ibn Daud's
conception:
"But the opinion of one who thought that also the laws
wherein there is disagreement are received from Moses, and that disagreement
took place due to an error in receiving the tradition or due to frightfulness,
i. e., that one [disputant] is correct in his tradition and the second errs in
his tradition, or he forgot or he did not hear from his teacher all that he
should have; and he [who holds this opinion] offers as evidence for this what
they said, "When the disciples [of Shammai and Hillel who had insufficiently
studied, increased in number, disputes multiplied in Israel and the Torah became
as two Torot" . Behold this, as God knows, is a despicable and very strange
position, and it is an incorrect matter and not compatible to principles. And he
{who holds this position] suspects people from whom we received the Torah and
this is falsehood.".
Controversy, as Maimonides explains in the next
passage, actually arises due to the inherent limitations of legal reasoning,
while he describes the ibn Daud's model in harsh terms as 'despicable and very
strange'. The students of Hillel and Shamai are not to blame for neglect in
transmission of tradition:
And when the study of their students became
less and the methods of argument became weakened for them in comparison to
Shammai and Hille, their teachers, disagreement befell them during the
give-and-take on many issues, because each one of them reasoned according to the
power of his intellect and according to the principles known to him...And in
this manner befell disagreement, not that they erred intheir receiving of
tradition and one's tradition is true and the other's false... .
It seems
that the problem which concerns Maimonides is that by the attempt to ground the
Mishnah and the Talmud in the solid foundation of revelation and tradition,
tradition itself is put into question. By explaining controversy as neglect and
forgetfulness in the process of transmission, proponents of the retrieval model
thus cast doubt on the reliability of tradition. In Maimonides own words one who
make such a claim "suspects people from whom we received the Torah".
Paradoxically, ibn Daud's minimization of human inventiveness in the history of
the halakhic process results in the undermining of the authority of tradition.
On the other hand, Maimonides' attempt to guard the purity of the process of
transmission in the history of halakhah, detaches a major portion of the legal
material from its direct grounding in revelation and gives rise to a contingent
foundation for the authority of the oral law.
According to Maimonides,
while no argument can be raised against the received material of halakhah, a
later generation can in principle debate the newly derived halakhot of previous
ones. The authority of the Mishnah cannot rest solely on tradition, since in
those areas of debates there is no tradition; its authority, rather, rests on
the fact that the Mishnah and the Talmud where widely accepted by the nation of
Israel as a whole. Theoretically Amoraim could have argue with Tanaim, and
Geonim with Amoraim, concerning the newly derived halakhot which constitutes
most of the material of the Mishnah. The Mishnah's and Talmud's authority is
thus founded on the historically contingent fact of acceptance, a ground for
authority that was rejected by later adherents to the geonic approach. The
Maimonidean accumulative model, which opposes the geonic tradition, provides an
alternative understanding of legal reasoning and its role both in controversy
and intergenerational authority. According to the Maimonidian accumulative view,
the role of legal reasoning is not to retrieve but to derive; controversy arises
in the process of derivation rather than through a crisis in transmission, and
the authority of the Mishnah and Talmud is based not only in manifesting an
ongoing chain of tradition but also in the historically contingent fact of
widespread acceptance. These two variant accounts of the history of halakhah
especially the emergence of controversy, provide completely different
understandings of its fundamental aspects.
It is important to stress,
that according to both ibn-Daud's and Maimonides' accounts, the spread of
controversy is viewed as a fall, since both - for completely different reasons -
assume a notion of truth in halakhah. Ibn Daud's conception, can be described as
a simple correspondence theory of halakhic truth. An halakhic opinion is defined
true or false relative to the complete revelation of Sinai. For example, in a
controversy concerning the proper time to recite the Shema at the evening, the
determination of the true opinion or the false one is dependent on the question
which opinion corresponds to the rule which was given at Sinai and was lost in
the process of transmission. As we saw Maimonides rejected this correspondence
theory of halakhic truth, since he asserts that in case of controversy there was
never a prior received tradition which can serve as a criterion to examine the
correctness of the matter. Nevertheless, Maimonides does assume a conception of
halakhic truth which is analogous not to correspondence theory of truth but to
what in modern philosophy is called coherence theory of truth. According to
Maimonides, a margin of debates is inevitable in human legal reasoning, since
such a reasoning is not conducted within the framework of strict logical
deductions. Yet, in principle, a high quality of deductive powers combined with
shared premises and methods of deduction, a correct and agreed upon answer can
be reached. Such an answer will be correct in the sense that it successfully
coheres with the earlier premisses which this new conclusion has been derived
from. Its correctness is not a function of its not in the sense of corresponding
to a prior given halakhic tradition grounded in the complete revelation.
According to Maimonides, it is for this reason that Hillel and Shammai who
shared the deductive method and high quality of deductive powers had only very
few halakhic disputes:
...for when two people are identical in
understanding and in study and knowledge of the principles from which they
learn, there will not occur at all between them disagreement in what they learn
by one of the hermeneutic principles, and if there will disagreements they will
be few just as we have never found disagreements between Hillel and Shammai
other than in a few laws, for their methods of study in all they would lean by
one of the principles were similar to one another, and also the correct general
principles which were held by one were held by the other
Maimonides then
proceeds to explain why in the period of the students of Hillel and Shammai
disputes increased: "And when the study of their students became less and the
methods of argument became weakened for them in comparison to Shammai and
Hillel, their teachers, disagreement befell them during the give-and-take on
many issues,...". Maimonides claims that the students of Shammai and Hillel
cannot be blamed for the increase in disputes, in the way ibn Daud implies.
Unfortunately there is a natural gap between intellectual skills of different
scholars and no one can be blamed for not reasoning above his skills. Yet, in
case of high quality of intellectual capabilities with the application of
correct legal reasoning, disputes could be significantly minimized. The
retrieval view of ibn Daud and the accumulative approach of Maimonides imply a
different conception of what counts as a true correct halakhic opinion.[10]
Let us turn to the third model which altogether breaks with the very conception
of a correct halakhic answer.
C. The Constitutive View
Although less
developed, the third model can be traced to the writings of Nachmanides and his
students, the fourteenth century Catalonian scholars Yom Tov Ishbili (Ritba) and
Nissim Gerondi (Ran). This approach, which I will call the constitutive model,
has its source in the explanation Nachmanides provides for obeying every legal
ruling made by the court even if it says "of the right that is left and of the
left that is right": "...Scripture, therefore, defined the law that we are to
obey the Great Court...For it was subject to their judgment that He gave them
the Torah, even if it appears to you to exchange right for left". This
explanation does not recognize an a-priori right and left; rather, the court
itself defines what is right and what is left. In other words, the court cannot
be mistaken about the halakhah, because tit has the privilege granted by the
author, to constitute the very meaning of the text.[11]
According to the constitutive view, legal reasoning does not retrieve a given
lost body of knowledge, nor does it derive new norms from a fixed body of
transmitted tradition, but rather it constitutes those norms. Nachmanides'
explanation - "For it was subject to their judgment that He gave them the Torah"
reappears in his students' work who provide new account for controversy. While
both ibn Daud's and Maimonides' attempt to explain the rise of controversy
focused on the story of the students of Hillel and Shammai which describes
controversy as a sign of decline Ritba comments instead, on a talmudic statement
with a different orientation to the problem:
'These and these are the
words of the living God'. The French Rabbis of blessed memory asked how it were
possible that both positions could be the words of the living God when one
prohibits and the other permits, and they answered: When Moses ascended to
heaven to receive that Torha they have shown him forty nine reasons for
prohibition and forty nine reasons for permission concerning each rule. He asked
God about this and God answered that the matter will be given to the sages of
Israel in each generation and the ruling will be as they decide.[12]
The same question is raised by Nissim Gerondi in his Derashot ha-Ran,
and his answer explicates in fullness the constitutive account of the history of
halakhah:
It is a known fact that the entire Torah, written and oral,
was transmitted to Moses, as it says in the tract ate Meggilah, R. Hiyya bar
Abba said in the Name of R. Yohanan: The verse:...and on them was written
according to all the words.." teaches that the Holy One blessed be He showed
Moses the details prescribed by the Torah and by the Sages, including the
innovations they would later enact. And what are those? the reading of Meggila.
The 'details' provided by the rabbis are halakhic disputes and conflicting views
held by the sages of Israel. Moses learned them all by divine word with no
resolution every controversy in detail. Yet [God] also gave him a rule whose
truth is manifest, i.e., 'Favor the majority opinion'....as the sages of that
generation saw fit, for the decision had already been delegated to them as it is
written: 'And you shall come to the priest the Levites , and to the judge that
shall be in those days' and 'You shall not deviate....".
Unlike ibn
Daud's explanation that controversy arises through a crisis in the process of
transmission and unlike Maimonides who claimed that controversy begins with the
introduction of the human component in the creation of halakhah, both Ritba and
Nissim Gerondi describe controversy as rooted in the very structure of
revelation. The body of knowledge transmitted to Moses was not complete and
final as ibn Daud described it, but rather open-ended, including all future
controversies as well. Moses passed on this multifaceted body of knowledge and
left it to the court in each generation to constitute the norm. The process of
the dissemination of knowledge is thus perceived as the inverse of ibn Daud's
model. Ibn Daud represents a complete and a clear cut body of knowledge at
tradition's starting point, which gradually erodes and becomes open-ended
through neglect. In the Ritba and Ran's account open-endedness and
multifacedness is the starting point while in time this open-ended body of
knowledge becomes definitive, each generation constituting - out of the
multiplicity of options transmitted to them - clear-cut norms. In this respect
the constitutive model differs as well from the Maimonidean accumulative
approach, and in his argument that controversy arose through the attempt to
derive newly reasoned norms from a clear-cut body of knowledge.[13]
In addition to a completely different account of controversy and history of
knowledge, this approach offers an alternative view of legal reasoning. Legal
reasoning is not used to reconstruct and restore a lost, perfect moment, nor is
it used to derive new norms by way of induction from given clear premises.
Instead, it constitutes and shapes an open-ended body of material. This model
affects notion of authority as well. The authority of the scholars in matters of
halakhah, does not rest on proximity to the source, which is open-ended in any
case. It is based on a privilege given by the Torah itself that norms should be
constituted by the sages. A challenge to the interpretative process through an
appeal to true 'true' meaning of the text is ruled out, since it is the court
that constitutes this meaning out of the multiplicity of given options. It comes
as no surprise, then, that in the constitutive view generational gaps are in
theory not crucial. Indeed, the Ran continues to say: "Permission has been
granted to the rabbis of each generation to resolve disputes raised by the Sages
as they see fit, even if their predecessors were greater or more numerous. And
we have been commanded to accept their decisions, whether they correspond to the
truth or to its opposite".
Nachmanides was the first halakhist to
introduce the bold conception that the Torah was given: `subject to their [the
sages] judgment that He gave them the Torah'. As was shown above, this statement
provided the foundation for the constitutive approach among his school. Yet, it
is important to stress that the statement was understood differently by Ritba
and the Ran. In addition it received a third explication by another author who
belonged to Nachmanides school the anonymous author of Sefer ha-Chinukh. Ritba
understood revelation as completely open-ended and pluralistic, attributing from
God's point of view equal weight to each side of the debate. The sages have in
such a case a strong constitutive power to determine and shape the law out of
multiple equal options. In contrast, the Ran argues that although God revealed
the Torah with different opposing options, from God's own perspective there is a
right answer. Such a right answer can even be accessed for example by a prophet,
or expressed directly by God through a 'bat kol' a heavenly voice. The Ran
argues innovatively that although there is a right answer, from God's point of
view, and although the sages are aware of that right answer, they have to follow
their own understanding since `Torah is not in heaven'. The Ran's position is
manifested in his explanation of the famous story of `Tanuro shel Achnai', where
the sages refused to follow the heavenly voice which ruled according to their
opponent R. Eliezer:
..they all saw that R. Eliezer follows the truth
more then them, and his mirales were all true and right and it was ruled from
heaven according to his [R. Eiezer's] opinion, nevertheless they acted according
to their ruling. Since their reason tended to declare [the oven] impure, even
though they knew that they rule opposite the truth they did not want to purify,
because if they ruled [the oven] pure they would have transgresed the words of
the Torha. This is the case because their reason tended to [rule the oven as]
impure and the ruling was granted to the sages of the generation - whatever they
decide it is what God commanded.
According to the Ran, the sages who
argued with R. Eliezer knew God's contrary opinion on the matter through the
heavenly voice induced by R. Eliezer, nevertheless they followed their own
understanding. The rule that the `Torah is not in heaven', grants the sages a
constitutive privilege, even against God's own choice. The sages constitute the
truth of the matter from the human point of view aided by their reasoning,
autonomously from their knowledge of God's opinion. Thus, the Ran differs from
the Ritba in understanding the constitutive privilege of the sages as formulated
by Nachmanides (both use Nachmanides own terminology). Ritba, on the one hand
grants a greater constitutive power to the sages, since they shape the truth of
the matter out of a completely open-ended revelation. On the other hand,
although the sages constitutive power - according to the Ran - is more limited
in its scope, it is more daring in its application. Since, according to the Ran,
the sages constitute halakhic answers even against what they know to be God's
view of the matter. Yet, inspite of their differences the Ritba and the Ran
share the constitute approach. Both describe controversy as rooted in revelation
itself, and both assume a constitutive power of the sages.[14]
In that respect they deeply differ from the retrieval and the accumulative
models of Ibn-Daud and Maimonides.
Each of these three 'histories' has a
history of its own in the writings of halakhic authorities after the Middle Ages
which needs further exploration. Among them I would like to present a
fascinating responsum of R. Yair Bakhrakh. In this responsum which appears in
Bakhrakh Havot Yair, all three models are juxtaposed. Through his attempt to
find his own way among the different alternatives, Bakhrakh sheds light on
internal problems inherent in each model, and his discussion is of great value
for further explication of what is at stake in the way the history of halakhah
is perceived.
In the first part of his responsum Bakhrakh marshals an
impressive amount of counter-evidence, to Maimonides view that on laws that were
given to Moses at Sinai there is no controversy. Through his long and detailed
criticism of Maimonides' position, R. Yair Bakhrakh shows that the Talmud is
full of controversies concerning such norms. Among the interesting talmudic
material Bakhrakh uses are not only the actual controversies that exist
throughout the Talmud on 'halakhot le-Moshe me-Sinai', but aggadic material as
well that attests to the pervasiveness of forgetfulness. Three thousands
halakhot were forgotten after Moses' death, and even Moses himself forgot
halakhot that were given to him at Sinai. Forgetfulness is imminent from the
very moment of reception and tradition can only erode further in each subsequent
stages of transmission. Bakhrakh's explanation for the rise of controversy is
thus similar to ibn Daud's and the motif of forgetting is present throughout his
responsum. He concludes: 'It is clear that forgetfulness and controversy are
present in halakhah le-Moshe me-Sinai'. (Havot Yair, 192)
After refuting
Maimonides position, Bakhrakh has a wonderful formulation of what is at stake in
this debate:
Behold, the Rav [Maimonides] built a fortified wall around
the oral law - in writing that concerning [the received traditions from Moses]
forgetfulness never exists. Would that we could strengthen and rebuild such a
wall! What in my [Bakhrakh's] opinion is impossible. Indeed, all that was gained
[in Maimonides' position that there are no controversies concerning the norms
Moses received] was lost, through his declaration that the reminder of the
Sages' controversies - which constitute most of the oral Torah and almost all of
the Mishnah- are not from Sinai.
Bakhrakh points out that the price paid
by Maimonides' position, which strengthens the credibility of tradition by
ruling out the possibility of controversy, is to exclude most of the oral Torah,
replete as it is with controversies, from its divine source at Sinai. Bakhrakh,
supported by massive evidence from the Talmud itself, opts for a
counter-Maimonidean history of knowledge which roots the entirety of oral law in
revelation. He thus arrives at a position very similar to that of ibn Daud's.
But in the heat of his debate with Maimonides, Bakhrakh distanced himself from
the retrieval model on an important point. As I mentioned earlier this model
typically marginalizes the place of controversy. Bakhrakh's affirmation -
central to his argument against Maimonides - that most of the Mishnah and the
oral Torah is replete with controversies - is a diversion from the retrieval
model . This argument, used so skillfully against Maimonides, seems, in fact to
undermine Bakharakh's own position. If Bakharakh is right in simultaneously
asserting two positions i.e., that all of the oral law was given at Sinai and
that the Mishnah is composed almost entirely of debates, it follows that most of
the oral law was forgotten. It makes sense to base the authority and meaning of
the oral law in revelation at Sinai if we marginalize the place of controversy,
as ibn Daud and Nieto asserted. If most of the oral Law was indeed forgotten,
not much is gained by claiming that it was all given at Sinai. Under the
pressure of this problem, Bakhrakh explores the constitutive approach - that all
of the oral law was given at Sinai including controversies. His examination of
this view reveals other internal conflicts in the attempt to portray an ideal
structure of the history of knowledge:
And concerning the statement in
the first chapter of tractate Berakhot, that the Mishnah and Talmud were given
to Moses from Sinai, there is yet a vital issue demands investigation: Does that
mean that all the opinions mentioned in the Mishnah and Talmud and their
counterparts were revealed to Moses? As it is said in the tractate Hagigah, the
verse "all were given by one Shepherd", refers to the opinions of those who
defile and those who purify, those who disqualify and those who approve, those
who prohibit and those who permit, those who obligate and those who acquit. And
the Ritba said that the expression "These and these are the words of the living
God" means that God told Moses that ruling should be handed over to the
generation's sages... .
Bakhrakh then proceeds to criticize the
constitutive view:
..This is questionable, since what advantage could
come from the sages' decision that something is pure if it is truly impure and
that [truly impure thing] has the power to arouse the Kelippah and defilement
and the Sitra Akhra? Of what good is a physician's contention that poison is the
elixir of life? We could content ourselves with what, in truth, is an
unsatisfactory explanation, saying that impurity and the evil husks do not gain
strength with every instance of contact or eating or intercourse or any
loathsome act, but only because certain acts are evil and despicable in the eyes
of God; and if God would say that the court can decide the matter as they wish,
no harm would be done... .
Bakhrakh's discussion of the constitutive
model links the view of the history of halakhah with the problem of the meaning
and effect of the mizvot. According to Bakhrakh, the claim that the Torah was
given open-ended and left to the sages' future decisions is incompatible with a
strict ontological conception of the commandments. According to such a
conception, halakhic categories such as pure and impure do not reflect mere
legal concepts. They are, rather, causally connected to the very nature of
reality. The proper analogy to impurity is poison. This view of halakhic
categories defines a strict notion of truth in the legal process. Something is
truly impure if it affects reality in a negative manner and vice versa.
Therefore, such a view of the causal impact of halahkhic categories makes those
categories completely independent from human decisions. Just as a physician's
pronouncement that a poison is curative is devoid of sense so the sages' ruling
that something truly impure is pure has no meaning.[15]
The constitutive approach is thus completely foreign to a strict ontological
conception of mitzot. The problem of the place of human creativity in halakhah,
as reflected in opposing accounts of its history, is thus connected to a deeper
issue of the ontological status of halakhic legal categories.
Bakhrakh,
who adheres to the ontological view, attempts to reconcile it with the
constitutive approach. According to his reformulation, reconciling the two, the
ontological impact of halakhic categories ought to be mediated through God's
will. There is nothing in the nature of impurity as such that affects reality.
Rather, it is because impurity is despicable in God's eyes that it has a
negative impact on reality. Therefore, if God grants the court the privilege to
distinguish pure from impure, that will in turn bear a causal impact on reality.
According to this reformulation of the causal connection, there is nothing
'"truly" impure as such, but only through God's will. Bakhrakh's discussion of
the constitutive view introduces the tension between the ontological qualities
he attributes to halakhic categories, and the open-endendness of revelation,
which depends on future human decisions. Although he formulates an ontology that
seems to solve the problem, Bakhrakh is dissatisfied with the solution. In the
continuation of the responsum he returns to explore the Ritba's formulation and
rejects it:
Concerning what is written in the first chapter of Erubin,
'These and these are the words of the living God' , and in the fourth chapter of
Hagigah "all of them [conflicting opinions] were spoken by one God": The Ritba
wrote that God gave Moses forty nine arguments for [a ruling of] impure, and
forty nine for [a ruling of] pure, and that the final decision should be left to
the sages of Israel....How very strange it is to say that God did not express
His true opinion and will concerning the halakhah and the interpretation of
scripture. In fact, the opposite is more reasonable - that in apprehension of
controversy God should have clarified the norms and made His will known.
....Therefore on what basis can one fabricate the contention that God pronounced
a mistaken opinion along with the true opinion? Perhaps He said only the truth
but it was forgotten... .
In a pattern very similar to his criticism of
Maimonides' accumulative history of halakhah, Bakhrakh criticizes Ritba's
constitutive approach. The Ritba's attempt to ground all of the oral Law,
including contradictions, in open-ended revelation undermines the element of
truth in revelation. It is interesting to note that R. Yair Bachrach faces a
tension inherent to his kabbalistic backround. On the one hand, the theology of
Kabbalah that pictures God as a multi-dimensional organic being, allows for a
conception of an open-ended revelation filled with many contrary opinions
mirroring God's own inner multiplicity; and indeed many formulations of an
open-ended pluralistic revelation are cast in kabbalistic terminology.[16]
On the other hand, the ontological view is at the center of kabbalistic
conceptions of halakhah. Bachrach opts for the strict ontological view, and
claiming that open-ended conceptions of revelation undermine the ontological
causual effect of halakhah. Faced with this dilemma, Bakhrakh returns to the
retrieval model: truth was given in complete and definitive form at Sinai but it
was forgotten. By juxtaposing all three models Bakhrakh's fascinating discussion
reveals the internal tensions inherent in all three of them. Do we have to
safeguard tradition at the expense of the exclusion of debates from revelation,
debates which make up most of the Mishnah? Must we include controversies in the
open-ended revelation at the expense of the very idea of halakhic truth and the
ontological effect of legal categories? The alternative to the accumulative and
constitutive models - the retrieval model - is what Bakhrakh chooses. Yet the
undeniable impression remains that the pervasive presence of forgetfulness in
the retrieval model troubles Bakhrakh all through the responsum. At times he
seems to be less like a proponent of any one position, than a juggler who would
like to keep all three of them in the air at the same time.
We have
examined three different histories of halakhah and especially the emergence of
controversy as they are described from within. Each structures the basic
conceptions of the halakhah in its own way through the story it tells about its
history.[17]
The role of legal reasoning, the emergence and account of controversy, and
notions of authority - elements that are fundamental to any legal system - are
shaped differently in each of the three versions. In addition essential to each
model is a different understanding of truth in halakhah. Ibn Doubt's retrieval
model assumes a corespondense theory of halkhaic truth, Maimonides' accumulative
model implies a coherence notion of halakhic truth, and the constitutive model
as presented by the Ritba, undermines the very idea of an a-priori critirion for
examining such an issue. In R. Yair Bakhrakh discussion a fourth conception of
halakhic truth was introduced, that of ontological causal affect on the state of
the world. As told from within these histories attempt not to uncover the past
for its own sake, but to organize the complex legal reality into a coherent
structure. In this respect, they function like mythologies which account for the
most fundamental aspects of human reality - death, birth, labor, evil and so on.
The complex matrix of life cannot be reduced to one story, and for that reason
the body of halakhic literature present us with multiple ones.
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