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

[Micha Berger via Avodah]

To recap my verion of the story so far...

I was alleging that the Rambam (and perhaps the Chinukh, perhaps not)
supported a position that there was One True halakhah, and it is the job
of the poseiq to try his best to use the system Hashem gave us to find
it. Because it was possible for the poseiq to err, the Rambam's system
would give more power to later posqim who are convinced they found the
true pesaq to overturn earlier interpretations.

Meanwhile, the majority of rishonim, including Rashi, the Ritva and the
Ran, do not believe that the Law of Contradiction applies to halakhah. And
there are a number of gemaros that call conflicting opinions both divrei
E-lokim Chaim [DEC] (letaheir and letam'ei, Beis Shammai and Beis Hillel,
etc...)

And in this system, reaching a different answer doesn't mean the earlier
answer was wrong in an absolute sense. And so there is an authority given
to the fact that one tzad was made halakhah lema'aseh and nispasheit as
such beyond the authority the Rambam would give. "Ein ladayan ela mah
she'einav ro'os" would only apply to an existing pesaq that the poseiq
feels rested on error, a faulty application of the process. Not simply
because he feels an alternate shitah is far more compelling.

And the tanur shel achnai appears to tell us to follow the procedure for
determining halakhah even against outright supernatural proof otherwise.
Which would be problematic if we were talking about a truth-finding
system, as the beis medrash no longer had a safeiq levareir once the carob
tree uprooted itself. OTOH, if both positions are DEC, and the system is
how to pick which one is halakhah, then proof that R' Eliezer was speaking
truth does not rule out R Yehoshua's position from also being true.

And the third line of argument I empoyed was looking at Shelomo's vs
Ezra's mizbeiach -- according to Shelomo's pesaq, the mizbeiach in bayis
sheini was pasul, and accordng to Ezra's pesaq, the nisuch hamayim during
bayis rishon was no good. Ezra even knew he was switching pesaqim!
How could he do so unless he thought he outsmarted Shelomo haMelekh
and centuries of batei dinim (which I am summarily dismissing), or if
he thought that both shitos were DEC and the new era called for a new
halachic response? Similarly, halakhah following Beis Hillel because
they cited Bei Shammai because they showed more kavod, or because they
were more numerous, even though Beis Shammai were brighter. The
criteria don't make sense from a truth-finding perspective.

This position avoids the question of why HQBH would give us a system
by which it's possible to derive wrong answers. After all, He knew He
left the derivation in there; in what sense is it not part of His intent
when giving us the Torah? But from this perspective aren't wrong; they
are simply not the route up Har Hashem best fitting how we as a society
choose to ascend Har Hashem.

Notice, though, that both sides could explain Moshe Rabbeinu's visit to
R' Aqiva's class identically. Moshe received the lesson even though he
personally didn't recognize its content because he received the system by
which R' Aqiva and those before him reached the conclusions presented.
However, the position I'm ascribing to rov rishonim would have it more
literally true -- everything derivable with that system IS the Torah given
to Moshe. The Rambam would have to explain what comfort it is to Moshe,
if knowing that in principle he can go from what he was taught to R'
Aqiva's teachings does not mean that he would necessarily know that R
Aqiva's teaching were Emes leAmito. And it is only the conclusions that
Moshe received outright that are halakhah leMoshe miSinai. Although the
idiom would also be used for halakhos lemaaseh that can be derived from
the system Moshe received for which no valid derivation for an opposing
shitah exists.

I noted that the Law of Excluded Middle and the Law of Contradiction fail
when dealing with the human condition, as we are riddled with antinomies,
dialectics and ambivalence. And the role of halakhah is to address that
condition, no? But the LoEM and LEC also fail when trying to discuss
things that operate along spectra, where drawing a line for a predicate
to end -- this shade is a kind of red but this almost identical shade is
not, this number of grains of sand in a pile is a heap. A fetus at this
point of development is a human with all the moral rights that entails,
but a moment earlier? It is therefore unsurprising to claim that some
rule the Greeks had success with when describing the world of action in
a theoretical abstract do not apply to the world of halakhah applied to
shades-of-gray reality.

In my previous post I looked at RZL's quotes from the Ritva and Rashi,
where they appear to me to be saying that machloqesin directly about what
the din is are superior, because eilu va'eilu; whereas a machloqes about
what an earlier rav said is inferior because one position must be wrong.
RZL is generalizing from that exception, rather than looking at the
text before the highlight, describing a more typical machloqes.

Implied, by the way, is that "eilu va'eilu" does not simply mean that
each are to be creedited for trying their best, since that could also be
true if they were arguing about what their rebbe held. It is about both
shitos being emes le'amito, which is harder to be true when speaking
about a specific rav's shitah. (Although they could have heard him at
different times, before and after changing shitah. In which case, the
one who testified to what he held "before" thinking that's the rav's
maskanah, is really in error.)

And that Rashi talks about "lehavkhin ei zeh YI-kasher -- to decide which
YOU MAKE kosher" and that is who you are qoveia' the halakhah to be like.

Now adding the Derashos haRan
<http://www.aishdas.org/avodah/faxes/mesorahPsakSources2.pdf#page=1>:

    This thing requires iyun -- how can it be said that the two
    katos in the machloqes were said to Moshe miPi haGevurah, behold
    Shamai and Hillel dispute..
    However, the matter is like this. It is a known thing that the
    whole TSBK and TSBP were given over to Moshe... And Moshe learned
    them all miPi haGevurah, WITHOUT DETERMINATION OF EACH MACHLOQES
    individually. However, he was given the rule by which the truth is
    known, which is: acharei rabbim lehatos.

Again we see that MRAH was given both opinions by HQBH. Then he was given
a rule for determining which is halakhah. A rule he himself could only
apply if throgh nevu'ah he would see what will in the future be nimnu
begamru; a rule that depends on a future event, not the revelation at
Sinai. Not a rule for determining emes le'amito -- after all, Hashem
Himself taught him both! -- but emes lehora'ah.

As for emes le'amito and the metaphysics behind halakhhah (eg tum'ah
or qedushah as metaphysical attributes with objective reality), the Ran
tells us the point of halakhah is to align us with tiqun to foster growth
in general. Not that it should or even can align 100%.


We also raised the Maharal, Be'eir haGolah, be'er 1, end of pereq 5,
into 6:
    That which it said that all of them are from Adon haMaasim. Why
    does it have to say here "miPi Adon Kol haMaasim", and what is it's
    inyan here? Rather, he wants to say that just as H' yisbarakh is the
    Adon Kol haMaasim, and from Him one finds a universe of mixture, that
    has in it opposites, and where there is one the opposite of the other.
    ... And so... even though one thing has changing bechinos [we just
    came off a discussion of 4 element theory] all were given from H'
    yisbarakh. Just that one is more iqar and it is determining,
    VEHU HALAKHAH.

Not emes le'amito, notice. In  fact, the Maharal compares the plurality
of shitos coming from HQBH to the plurality of different things that
He made in this universe. He is Adon KOL haMaasin, even those that
are opposites.

    Mikol maqom, do not say that the thing which is not iqar has no
    significance as all, this is not true. For someone who listens to
    all the dei'os grasps the idea according to the thing's bechinos
    mischalfos, and he learned Torah of WHAT THE THING IS, THAT IS HAS
    BECHINOS MISCHALFOS. IT IS ONLY LE'INYAN HALAKHAH THAT ONE IS MAKHRIA'
    ON THE OTHER.

Ch 6 continues by saying that sometimes the bechinos are equal, and there
is no mackhria' and that is why Hillel and Shammai needed a bas qol --
to tell us that both arguments deal with aspects of reality that are
equally at the fore, and that even so there is only one din. But in
other machloqesin, it pays to keep on looking to find which facet of
the Torah is iqar at our point in history.

As I said: not more true ("Hu bara hadavar sheyeish bo shenei bechinos"),
but more appropriate given how we are climbing Har H'.


:                                                Tiyuvta is a 
: checkmate against a shiita, and establishes the other shittah as the 
: correct one. Because the authoritative facts--sometimes an authoritative 
: memra, sometimes a posuk--supports the opposite halacha from the one 
: maintained by the opposition...

Yes, because allowing Contradiction in the ream of shitos doesn't mean
that an amora who wouldn't contradict a tanna intentionally contradicted
one. Or that he would follow a daas yachid, or...

Denying the LoC doesn't mean logical anarchy. There would be no reasoning
at all that way!

:> Here's a related quote from R Tzadoq haKohein, Resisei Laylah #[16]:
:> Whenever a new thing about the Torah is found by a wise person, its 
:> opposite simultaneously arises... When it comes to the realm of po'el, 
:> it cannot be that two [contradictory] things are true simultaneously. 
:> In the realm of machashavah, on the other hand, it is impossible for a 
:> person to think about one thing without considering the opposite,

: Not a rishon...

Same is true of the Maharal. But whose understanding of the rishonim are
you going to bet on -- your and mine, or the Maharal's and R' Tzadoq's?
Or are you saying that either is capable of going against all the rishonim
without even trying to address that fact?

: machshava when one thinks of one thing he /considers/ the opposite...

More than that:
    Therefore, every chidush divrei Torah which comes into the world
    via some chakham, bechreikh the opposite does to. This ta'am
    (Mishlei 17:14), "poteir mayim reishis madon" -- mayim is Torah,
    whomever opens some gate and speaks (or: opens some gate and idea --
    vedibeir? vedavar?) is the source of strife and machloqes.

    They za"l [Shemu'el to R' Yehudah, on this verse] said in the first
    pereq of Sanhedrin (7a), "the beginning of 100 [gematria 'madon']
    strifes". Meaning: There are 40 sha'arei bbinah and that is why
    there are 49 panim tamei, and 49 panim tahor...

R' Tzadoq is placing the gemara of 49 letamei and 49 letaheir in terms
of the lack of LoC in the realm of thought.

> ...
: When RITVA on the same daf quotes Rashi as the correct peshat, it is
: because he too is working with the Law of Non-Contradiction .(Yes, the
: same Ritva who elsewhere quotes the kabbalistic teaching about Moshe
: being told 49 considerations pointing to opposite conclusions...

> This is not some qabbalistic esoterica -- it's in both Talmuds and
> Mes Soferim! Chazal benigleh say that Moshe was given both set of
> arguments.

: I'm surprised that someone who repeatedly invokes the Rambam's rule 
: about not taking Aggadta literally would argue this, especially to 
: support a literal interpretation that posits a logical impossibility.

Not taking agggadita historically does not mean ignoring a statement
the gemara makes about how halakhah works. IOW, eilu va'eilu DEC
has to describe how halakhah works even if I had reason to deny the
literal story.

And agian it is not a logical impossibility. It is only impossible
within a given system of logic. One we have no evidence Chazal accepted.
One that is avoided in many artificial intelligence applications and in
studying quantum phenomenona.

See some alternatives in
https://en.wikipedia.org/wiki/Non-classical_logic
There is a box of some 25 other logical systems hidden at the
bottom of the page. Hit "show" and see what's out there.

THAT was the non-esoterica I was speaking of. "Classical Logic" is only
Classical in the culture built atop the Greeks. We have no indication
Chazal accepted it, and a number of gemaros we would have to twist to
fit them to Western intutions. To me, that makes Chazal's use of a
different logic exoteric.

There are also overt cases, like when Rashi explains that an "almanas
isa" is called a doubh because "isa lashon safeiq hu". Doubt is a mixed
state, a different kind of truth value than "I don't know". And covertly
as I mentioned, I heard RYBS use the term "multivalent logic" in the
middle of his Yiddish when discussing bein hashemshos. (Why an esrog that
is qadosh bh"s because it was used on the day before is therefore qadosh
the entire day the bh"s begins. Because bh"s is an 'isa' of both days.)

Actually, I even proposed that this was the whole parish vs qavua split
-- qavua deals with things that already entered the realm of po'el, as
R Tzadoq put it, and therefore the LoC applies. The din is one or the
other, we don't know which, so play safe on a deOraisa -- kemechtza al
mechtza. Whereas kol deparish is still in machashavah logic, and its
halachic "state" is an isa of conflicting pesaqim.

But given that there are a multiplicity of logic systems, and Chazal
never say "we follow the Greek system", if the gemara looks like it
defies that system we need proof that we should read it otherwise.
The fact that Classical Logic seems self-evident to those of us who
grew up in the West is insufficient. After all, had we been exiled
to Persia, India or the Far East, we wouldn't have such assumptions.

:> [If] You want to argue that these rishonim did not take those gemaras
:> at face value, do so.

: Yes, I do. And I proved it.

I think I showed that your proofs do not remain when we quote the same
source more fully, and remove your insertions. Which brings us to the
Shelah (Toledos Adam Beis Chochma, 3rd):

    The Ritva za"l.... It is masur to the chakhmei ha'emes of Yisrael
    in every generation, and the hakhra'ah would be like them. This is
    correct lefi haderash, and in the derekh ha'emes there is ta'am
    [and sod] in this matter. Ad kan.

First let's note that the Shelah starts by bringing the Ritva as I understood
him, which he then follows up with:

:     And I say, where it is possible to uphold the words of both of them
:     [...                                           ], then their adage
:     "eilu v'eilu" is justified (yitsdak). And indeed this is justified
:     in the account of Pilegesh B'Giveah...because it is possible to
:     maintain both their words. However, (a) when this one prohibits and
:     that one permits, it is impossible to uphold both their words. And
:     (b) regarding decision-making [for practical halacha] (hach-ra-a),

This isn't (a) and (b). The sentence begins "aval" and the next clause
is "ve'im bishvil". So I would translate this part:
				However, when this one prohibits and
    that one permits, it is impossible to uphold both their words. And
    regarding decision-making (hach-ra-a),
    being that it only follows one side's opinion, and we do not uphold
    the words of his colleague, if they were divrei Elokim Chaim, how
    can one of His devarim be thrown to the ground?

IOW, halakhah lemaaseh, po'el, is different than what could be done with
PbG (where they could establish both sides), and therefore when it comes
to hakhra'ah only one stands. Which continues the idea as he presented
it in the Ritva.

:     Rabbanei Tsarfas, z"l. For they are not sufficient (ainam maspikim)
:     in this. But let it [the meaning of eilu v'eilu] rest [instead]
:     b'taam v'sod sheyaish bo, al derech ha-emes hamekubal [acceptable]
:     as the Rav (Ritva) z"l indicated (k'mo sheramaz haRav z"l).

Therefore, he rejects the Aristotilians from Provence who were enamored
with shitas haRambam.

RZL's next source...

: RAMBAN on Devarim 17:11 says that one should not be afraid to
: follow Beis Din Gadol even if one thinks they erred...          He
: is working with the assumption that the mikreh has a specific intent 
: that is subject to error. Or a range of valid intents that a 
: Sanhedrin could miss.

DH "Yemin uSemol". The Rambam tells you that the reason for having a
single right pesaaq is that otherwise "the machloqos will multiply,
and the Torah will become multiple Toros." Not because we need to find
the one Retzon haBorei, but pragmatically it wouldn't work. After all,
"al mashma'us da'atam nasan li haTorah" -- a pretty literal description of
Constitutive Theory, that the pesaq is right because Hashem gave chakhamim
the power to define right. Continuing the Ramban "Even if they err" --
but as he clarifies in the seifa, "looks to me like they err." The
Ramban rules out actually erring by (basically) invoking siyata diShmaya.
An apparent error just means I found a different shitah more compelling.

It is over real error vs apparent error that he disagrees with Rashi's
girsa of the medrash. According to Rashi, the pasuq is saying that even
if they actually decide on something that is neither eilu nor va'eilu.
According to the Ramban, that doesn't happen, and the pasuq is telling
you that if they aren't ruling like your eilu, they are correctly ruling
like their va'eilu.


(Tangent: why does the Ramban bring the calendar controversy between
R' Yehoshua and Rabban Gamliel as an example? The calendar is based
on "hachodesh hazeh lakhem" -- we have the power to set the dates,
and astronomy is secondary. Regardless of what one thinks of pesaq
in general. Now, had it been a machloqes over which day was Shabbos...)

And next, Tosafos Rabbeinu Peretz, we don't ecen necessarily argue:

: TOS RABBEYNU PERETZ (Eruvin 13b)begins by taking eilu v'eilu as you do,
: but cannot accept it because it is illogical. "If something is 
: assur it cannnot be muttar, and if something is muttar it cannot be 
: assur." He too is working with the Law of Non-Contradiction...
:                       ... I take it that he means that both shittos 
: of a machlokess are worthy of consideration. Or, that both are 
: emes, but you cannot in practice hold both.

Yes, the reisha talks about DEC, where contradiction is logical, and
the seifa says but we need to pasqen like only one, since in action
we have the Law of Contradiction. IOW, I fully agree with the "Or"
in your final sentence.

:> > :> 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. > > : I don't have 
: peshat in why we would be at a disadvantage if we were >  : explicitly 
: given a pesak for each and every situation that may > arise. > > ... 
: aside from it being physically impossible. Not a limitation on > the 
: RBSO, but on human language. There isn't enough room on the > planet for 
: microfilm of text to cover every possible case.

: Then why in the world are you taking, and basing your position, on a 
: reading of "har'u lo /al kol va-davar/ 49  panim etc." that proposes 
: that Moshe Rabbeynu handed down two halachos for each of those countless 
: devarim?

I don't know what you're asking. HQBH gave the Torah that way because
it was the only way the Infinite can talk to the finite. By giving
us the means to reach answers ourselves for most things, since we can't
possibly receive from Him every answer.

:  > > Except that you're working with a Hashem [Who] gave both 
: conclusions > to Moshe.

: Literally? As opposed to just leaving it to the sages to determine the 
: correct halacha through application of the rules they were given? And 
: Moshe literally and explicitly gave those conclusions to bnei Yisroel? 
: You just nixed that possibility!

No, not literally. Via the rules. IOW, there is no procedurally correct
way to get a non-emes result. Even though the procedures can produce
conflicting answers to the same question.

One last source, the Yam Shel Shelomo.

:> ... Down to the Yam shel Shlomo, who wrote (Introduction to Bava
:> Kamma) "Never did two opposite predicates for one subject escape
:> the lips of Moshe" ("shelo yatza hadavar mipi Moshe l-olom lihyos
:> shnei hafachim b-nosei echad")...

:> Which he contrasts with that which is deduced from what Moshe said
:> ... because nothing emerges from the seikhel hapo'al, which does not
:> arise sensible seconds and thirds.

: Yes, one can deduce things from what someone says, either correctly or 
: incorrectly gauging what he meant or would have thought...

The Yam shel Shelomo is saying that halakhah leMoshe miSinai is
beyond machloqes, because Moshe could only have repeated one shitah.

(And PERHAPS, like the Ritva and Rashi say about machloqesin geru'in
between two rabbanim arguing about what their rebbe said, one side must
be wrong.)

However, Torah given to Moshe implicitly via rules of deduction waas
done so done so for the very purpose of allowing for dialectic.

(Dialectic isn't just about two conflicting theses; it's about how some
questions and the discussion getting to an answer could be of more value
than the answer itself. It is why we still learn Shas, and the focus
didn't shift to the Rif.)

Tir'u baTov!
-Micha

-- 
Micha Berger             "I hear, then I forget; I see, then I remember;
micha at aishdas.org        I do, then I understand." - Confucius
http://www.aishdas.org   "Hearing doesn't compare to seeing." - Mechilta
Fax: (270) 514-1507      "We will do and we will listen." - Israelites