[Avodah] Geonim, Rambam and Other Rishonim on Mesorah and Pesak and RMH's essay

[Micha Berger via Avodah]

Before getting into the core topic itself, I want to clarify something
about the playing field.

We grow up in a culture where Aristotle's Logic is well embedded. The 3
Classical Laws of Thought appear self-evident. But to show that we should
neither accept 2 of them uncritically or even assume that Chazal agreed.

After all, I am asserting that the majority position among rishonim,
and the way of of us do halakhah today is in defiance of at least one of
these laws. Until I can establish that chazal didn't hold of such things,
I won't get very far.

More than that, I want to argue that our default position should be that
both opinions were given at Sinai, that neither side of a machloqes
is "wrong", despite the fact that they disagree. That machloqes is
about which correct answer is being made law. And that in fact, the
burden of proof is on the position RMHalbertal ascribes to the Rambam,
that machloqes is about which extrapolation from established halakhah
is correct.

Anyway, the three laws:

1- The Law of Identity:
    Whatever is, is.
    A = A.

2- Law of Non-Contradition
   2 or more contradictory statements cannot both be true in the same
   sense at the same time
   not (A and not-A)

But in the real world, we often get propositions about the human
condition that is subject to antinomies. As just one of the examples
RYBS pointed out (Community), society exists to further the wlefare of
its members AND a person's highest calling is to serve his society.

Similarly, we take the ambivalence of someone who became suddenly rich
by inheritence for granted -- he says both dayan ha'emes and hatov
vehameitiv.

3- The Law of Excluded Middle
   Everything must either be or not be
   A or not-A

But most categories have a huge gray area between them. Is indigo a
shade of blue, or of purple. Is an American man who is 5'1" "tall"?
In Yiddish, we have the idiom of complementing someone in the negative,
"He's not ugly." Or, "She's not dumb." Attempting to avoid giving an
ayin hara by only implying handsomeness or brilliance; after all, plain
looking people are also "not ugly", and people of normal intelligence
are also "not dumb".

(This is also part of understanding the machloqes over mikelal lav,
atah shomeia' hein. The other part being whether someone would bother
saying "If A then B" if they didn't mean "If and only if A, then B."
And if not, not. A question of rhetoric, not logic.)

If this is true of questions about the human condition, all the more
so theological questions or trying to second-guess the Mind of G-d.
We can't fully capture the Truth, never mind assign it a boolean
white-or-black answer. The Maharal explains machloqes in these terms.
We have conflicting models of a Truth that can't fit in this world;
not a real contradiction.


I hope that was enough to raise questions about classical two-valued
(true-vs-false) logic. Or even whether it's necessarily the better system.
Now to draw a wedge between Western and Rabbinic logic.

Rashi says "'Issah' - lashon safeiq" (Kesuvos 14a) An almanah whose
family's status is unknown is a "dough", a mixture.

Similarly, RYBS proved from hilkhos esrog that the safeiq associated
with bein hashemashos is an irbuvia, an "erev" of the two days. An
esrog that is set aside for one day's use is assur behanaah that day,
and since it's qadosh bein hashemashos, it's assue the next day too.
Notice it's only qadosh during BhS because BhS is part of the prior
day, and the qedushah is only extended to the next day because it's
simultaneously the next day too. Issah - lashon safeiq.

So much for the Law of Contradiction. Or maybe you consider Issah / Erev /
Safieq a middle term, a third option, denying the Law of Excluded Middle.


Pashut peshat in Chazal is that machloqes is understood in these terms
as well.

"Eilu va'eilu divrei E-lokim, vehalakhah keBH."

Yerushalmi Sanhedrin 4:2 (a similar passage in Tractate Sofrim 16:5):
    R' Yanai said: Had the Torah been given decided, we wouldn't
    have a leg to stand on. Where? "And Hashem spoke to Moshe." He said
    before Him: Master of the World, tell me what is the halakhah. He
    responded "Decide according to the majority...." So that the Torah
    be interpretable 49 ways tamei and 49 ways tahor.

And then there's the problem of explaining the Tanur shel Akhnai story
if we're seeking the One True Pesaq. We got the siyata diShmaya; if it
was telling us the One True Pesaq, how could we possibly choose rabbim
over siyata diShmaya?

Notice RMH quotes the Ritva's citation of Yerushalmi.

The Ran's justification of acharei rabim lehatos is similar. RMH's
translation:
    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...

Again, the Divrei Elokim Chaim is described as going beyond the Law of
Contradiction. Majority opinion isn't advocated as a way of maximizing
the chance of getting the One Right Answer, but the given methodology
for picking /a/ right answer. And Moshe was given all the Torah, even
derabbanans -- or at least divrei soferim (megillah is which?) -- and
we choose which version is halakhah.

I think in light of these three sources (four, if you want to count
Soferim separately)the burden of proof is on someone who says that pesaq
creates laws through extrapolation or interpolation from existing Torah,
rather than selecting among pre-existing options.


One last note, as part of this laying-the-groundwork email:

I drew a distinction between finding Truth and finding Law. Realized that
in rabbinic idiom, this could be referred to as Emes vs Din. But it is
also -- perhaps more often -- phrased as Emes leAmito vs Emes leHoraah.

One needs to see what kind of emes a rishon is describing, and not just
rely on the use of the word emes.

Tir'u baTov!
-Micha

-- 
Micha Berger             Never must we think that the Jewish element
micha at aishdas.org        in us could exist without the human element
http://www.aishdas.org   or vice versa.
Fax: (270) 514-1507                     - Rabbi Samson Raphael Hirsch