[Avodah] Lo Bashamayim Hee

[Michael Makovi]

A much-expanded version of a previous post of mine to this thread,
regarding my...err...radical view of TSBP:

> Hazal wanted us to know that once the
> Torah left the heavens it would no longer remain the pristine Perfect
> Handiwork of HKBH, but would henceforth be managed and interpreted by
> error-prone humans. Nevertheless - despite the loss of innocence for
> the Torah - this step was necessary. The time had come for the
> innocent Torah to mix it up with the mortals and to help us even if if
> would not remain in its original state.
>
> Kol Tuv / Best Regards,
> RabbiRichWolpoe at Gmail.com
> see: http://nishmablog.blogspot.com/

Rabbi Moshe Shmuel Glasner makes a large point of this, saying that
the truth of Torah She'be'al'pe is not what Hashem says but what we
say (Rabbi Eliezer and the oven), in line with Drashot haRan #5 on the
oven and Sefer haChinuch on the mitzvah of following the judges, that
we follow our rabbis even when they're wrong.

See also Rabbi Gil Student's "Halachic Responses To Scientific
Developments" (http://www.aishdas.org/toratemet/science.html) citation
of Yad Yehuda 30:3, quoting Rambam Hilkhot Shekhita 10:12-13, that we
cannot question Chazal's decisions regarding which animals are treifa,
because all we have is Chazal's decisions, and they are sealed.

According to Rambam, drashot can be overturned by a later Sanhedrin.

In fact, Rabbi Glasner, quoting the Midrash Shmuel on Avot, "aseh
sayag laTorah", says that the Oral Law was oral davka to make it
flexible and subject to change. This explains the Gemara's apocalyptic
permission to write the Oral Law, viz "eit la'asot lashem"; by writing
the Oral Law, to save it, a vital piece of it was destroyed, part of
its raison d'etre in fact! Because once a piece of the Oral Law was
written, it became authoritative, and no longer subject to change and
evolution as was previously the case.

Rabbi Eliezer Berkovits  (who received semicha from Rabbi Glasner's
son, Rabbi Akiva Glasner) expands extensively on this point, that the
writing of the Mishna, Gemara, and the Codes successively ossified the
halacha in a way that the Oral Law was never meant to be, making us
Karaites of the Oral Law.

See Rabbi Glasner's hakdamah to his Dor Revi'i, perush on Chullin. It
is partially translated by Rabbi Yaakov Elman at
http://www.math.psu.edu/glasner/Dor4/elman.html. See also the
biography by David Glasner at
http://www.math.psu.edu/glasner/Dor4/Dorrev7.html. As for Rabbi
Berkovits, he makes his points in a variety of locations, including
Not in Heaven: The Nature and Function of Halakha (aimed at
secularly-educated scholars), Halakha: Kocha v'Tafkida (aimed at
rabbinical scholars), Towards Historic Judaism, and Crisis and Faith.

Rabbi Glasner simply takes this entire philosophy a bit further than
most. Likewise Rabbi Berkovits on Moshe seeing Rabbi Akiva's class and
not understanding and learning from this that Torah does evolve over
time; both are more extreme than most, but the gist of what they say
is quite normative, as far as it seems to me. In fact, once we say
that

1) halachot could be forgotten and had to be recovered by humans,
2) many drashot were in fact used by humans to actually derive the law
(often **but not always** they were asmachtot for laws already known
as kabbalot)

(See, for example, Dynamics of Dispute by Rabbi Zvi Lampel,
"Interpretation" by Menachem Elon in Encyclopedia Judaica, Rabbi
Isidore Epstein's introduction to the Soncino Midrash Rabbah, Rabbi
Gil Student "Midrash Halakha" at
http://hirhurim.blogspot.com/2004/11/midrash-halakhah.html)

we are admitting the human element of many halachot, and we can no
longer say it is purely m'Sinai as most say Torah She'be'al Pe is, and
we are forced, as it seems to me, to adopt some sort of opinion
similar if not as extreme as those of Rabbis Glasner and Berkovits, as
least as far as theory goes (Rabbi Berkovits's actualization of this
philosophy is a matter for a separate debate.)

Therefore, for example, we ought to realize that an Amora's
explanation of a Tanna may be his own personal thoughts, similar to
any rav's understanding today of the intent of a prior authority.
Rabbi Adin Steinsaltz in his Essential Talmud remarks on the peculiar
Talmudic method of okimta, remarking that it aspires not for
historicity, but rather, it attempts to make as many pieces of
evidence agree as much as it possible.

There is thus no guarantee that a creative drasha is the correct
intent of Torah, nor is there any guarantee that an Amora correctly
understood a Tanna - see Tosafot Yom Tov Nazir 5:5 for permission to
permit mishna differently than the Gemara.

Evidently, the Shadal (Shmuel David Luzzatto) held similarly to this
whole line of thought, that Chazal's drashot on mikra are not
necessarily "correct". See Shmuel Vargon's "Samuel David Luzzatto's
Critique of Rabbinic Exegesis Which Contradicts the Plain Meaning of
Scripture", http://www.biu.ac.il/JS/JSIJ/sum2.html (note: my Hebrew is
insufficient to have read this article yet, so I am relying on the
abstract).

Rabbi David Bigman, rosh hayeshiva of Yeshivat Maaleh Gilboa (on Har
haGilboa in the Jezre'el), for example, advocates critical Talmud
study, asking, for example, what the Tanna meant independent what the
Amora thought he meant; what different codifications of Oral Law say
(Bavli, Yerushalmi, Tosefta, etc.), each in their own light. See his
"Finding a Home for Critical Talmud Study",
http://www.edah.org/backend/JournalArticle/bigman2_1.pdf,
http://www.myjewishlearning.com/texts/talmud/Gemara/ModernStudy/BigmanCritical.

The Kuzari in 3:41 opines that the omer could be brought on any date
chosen by Chazal, and it was Chazal who chose the second day of
Pesach. If so, then it means the contrary opinions of the Tzadukim
(that it was to fall on Sunday, as the literal mikra indicates) is
wrong only insofar as it goes against the binding ruling of Chazal,
and not because it was an invalid drasha. It seems to me that perhaps
alternatively, we simply don't listen to Tzadukim even if they are
correct; there is a story in the Gemara of one rabbi being put to
death, and he realized it was because he once found a drasha of a min
to be pleasing; even though the drasha was valid, he still should have
ignored it. In any case, we can extrapolate that in general, freedom
of midrash is restricted more by Chazal's binding decisions than any
claim of theirs to being the only correct opinion.

I thank Rabbi Yaakov Elman of Yeshiva University for providing me with
sources (most notably, he introduced me to Rabbi Glasner when I
mentioned Rabbi Berkovits), as well as having extensive discussion
with me on their implications. It should be noted, however, that this
philosophy is still a work in progress by me, especially as I continue
to learn more Chumash, Gemara, and Halacha. It should also be noted
that any errors are mine, not Rabbi Elman's, as he has already pointed
out certain errors in my thinking, and no doubt there are still more
to be found.

Mikh'el Makovi