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

[Micha Berger via Avodah]

The sources to RZL's most recent post are available at
<http://www.aishdas.org/avodah/faxes/mesorahPsakSources3.pdf>
including part of Derashos haRan #5 and Yevamos 62b.

On Sun, Dec 18, 2016 at 08:53:49PM -0500, H Lampel via Avodah wrote:
: RMB (Avodah Digest, Vol 34, Issue 157) maintains that the Ran broke
: with the Rambam and Geonim by asserting that Hashem and Moshe
: literally transmitted, as truth, both sides of future disputes,
: despite their being contradictory and incompatible...

Not at all.

I am again going to back away from the sources and draw the big picture,
since the feedback I'm getting from RZL's posts is that my position is
not coming across.

I am saying that according to all rishonim, Hashem gave Moshe most of
the peratim of halakhah by giving him a system from which they could
be derived (*). This is how the story of MRAH visiting R' Aqiva's shiur is
most popularly explained in contemporary sources. Moshe didn't know the
conclusions, but they were given to Moshe implicitly.

As RZL put it:
: This is similar to what R. Avahu tells us in Sh'mos Rabbah (41:6):
: And did Moses actually learn the entire Torah?! It (Iyov 11:9) says
: that '[the Torah] is vaster than the Earth ... and wider than the
: Sea.' And in forty days Moses learned it all?! No. It was the
: overall principles that G-d taught Moshe."

Also, the rishonim realized that in practice we regularly do reach
conflicting conclusions using the rules of derashah and sevarah.

According to the vast majority of Rishonim, this is understood by taking
the gemara (found in both shasin) literally -- Hashem intentionally gave
us 49 means of proving each side of the din. He also gave us a rule for
deciding which to follow. But it's not that one is wrong and one is right,
because MRAH (for example) would be incapable of counting the heads when
they voted on one of the dinim he heard R' Aqiva present. The answer, like
the head count, is contextual -- which is better for us as our history,
culture and avodas Hashem evolve. (Or, as the Maharal put it, which of
the elements that go into the din come to the fore in our situation.)

This is also what one would conclude reading "eilu va'eilu divrei E-lokim
chaim" literally.

According to the Rambam, and Maimonidians like Chakhmei Provence
(mentioned by the Shlah; possibly also according to the Chinukh,
but he could be read either way) this is logically impossible. Law of
Contradiction and all -- how can two conflicting answers both be emes?
So, HQBH did know that we humans would give divergent interpretations
of halakhah -- but only because of human fraily. Rov is not part
of what makes the law the law, but a means of minimizing the chance
that we are following a faulty derivation of the din rather than
the rish one.

But then one has to read peshatim into what the gemaros "must have"
meant.

And there is no proof that the mesorah bought into the LoC. There are
other indications, such as the treatment of safeiq and tannaim, to show
that Classical Logic may not be how halakhah works.

I've pointed out known cases where Classical Logic is eschewed for more
modern variants. Two central examples:

1- When describing a spectrum, Fuzzy Logic, Proability, Confidence levels
work better than trying to make binary predicates and falling prey to
the Sorites Paradox (removing which grain of sand separates a mound of
sand from having no mound)?

2- The human condition is all about conflicting values, dialectics,
antinomies and ambivalence. When you describe human events, two ways of
analyzing what happened can produce conflicting but accurate results.

Both of these appy. When human life begins is an example of a 9 month long
Sorites Paradox. And whether one chases Chesed or Gevurah, Shalom or
Emes, can separate Batei Hillel and Shammai. But does that make either
choice "immoral"?

AND... Halakhah is a law, not a truth. Even if we were in a domain where
conflicting truths cannot co-exist, does that rule out conflicting valid
interpretations of the law?

And from this we get the Rambam's pesaq in Mamrim 2:1, that accepted
interpretations do not require says that new legislation requires a BD
gadol mimenu bechokhmah uvminyan to be overturned. (Even though 2:2 says
that new legislation does.) Because "ein ladayan mah she'einav ro'os"
and if that earlier BD's conclusion appears to be in error, then he can
overturn it.

Most of our qehillos have a far stronger notion of precedent than that.
For example, the rules in the Shakh's qunterus (after YD 242) #1 -- a
poseiq can overturn a ta'us on a devar mishnah, but not when the cause
for differing is shiqul hada'as.

Even the Gra and Brisk only follow their own interpretations lehachmir
(mayim acharonim) or when they would be equally yotzei either way
(eg 2 matzos, skipping the pasuq from Zekhariah at the end of Aleinu,
or the like).

 ---

Flamebait:

I think that the Rambam's desire to treat halakhah as a Classical Logic
truth system ties back to his Aristotilian theory of akrasia. (Akrasia:
why people make bad choices.) That it's all about opionion, which can
be faulty, versus knowledge. Right behavior is a side-effect of correct
knowldge. Just as he opens and closes the Moreh by talking about how
knowledge is the ultimate form of human perfection, moreso than ethics
and middos. And he puts nevu'ah on the same spectrum as philosophy,
if beyond it. Hashgachah peratis is also proportional to knowledge.

All of which is very hard to justify from Chazal as well. The Ramnbam's
very Greek way of looking at Torah impacted how he saw the process of
pesaq as well.


 ---

* On the subjevt of all rishonim believing that most of halakhah was
given implicitly, in derivable form:

Rashi appears to say differently on that gemara (Menachos 29b, DH
"nisyashvah da'ato). Rashi says that Moshe was calmed because it was
given in his name "even though he hadn't yet received it". One could
ttake that to mean that Moshe did receive every perat during the course of
matan Torah, but he visited the future before finishing his own studies.

However, Rashi himself (and followed by the Ritva) draws a distinction
between disputes in law and disputes in what someone said. So Rashi
must mean that even the means of deriving the dinim Moshe heard in R'
Aqiva's shiur weren't given yet. With Rashi assuming that MRAH would
be capable of filling in the gap himself and realizing how R' Aqiva and
the rabbanim before him reach the taught law. Had Moshe's education been
complete before the trip.


 --- 

: I argued that this is a misreading of the Ran, because he explicitly
: rejected the concept that it is merely by the decree of the sages
: that objects are tahor or tamie, and actions are mutar or assur.

Not mutar or assur.

: Just as poison is poisonous even if the consensus of doctors
: otherwise, he says, so too a tamei object or a forbidden action will
: produce negative effects on the soul, regardless of the consensus of
: the sages.

And yet he also says that Hashem gave us both shitos. The answer being
that he only expects halakhah to minimize our exposure such metaphysical
danger, to usually be right. In fact, the text you circle in blue (on daf
19, pg 2 of the pdf) says "umah shehayu metam'in LO HAYAH RAQ MIQOTZER
SIKHLAM". I am not sure why you circled this, did you miss the "lo"?

But I already played this game twice now, you cite things, I show how
parts you didn't highlight contradict your conclusion, you cite more
things, not addressing my quotes. I'm kinda done with that. Here was
something interesting, as in that paragraph the Ran spells out the
Constitutive theory. Including in the part you circle.

...
: In his more recent post, RMB raises an interesting point, that
: Hashem's response to Moshe's request for clarity does not direct him
: to apply the methodology to arrive at the halacha...

My point was that the methodology doesn't guarantee truth. Moshe is
told that the future generations' vote is more determinant than his own
first-hand opinion.

: Additionally, if one speaks of ''rov rishonim,'' one must factor in
: the opinion of (how many?) Geonim in addition to the Rambam.

And how many baalei Tosafos?

In any case, as you hopefully now see, the difference between the Rambam's
understanding of the other derivation being wrong and the rov's position
that the other derivation is simply less useful for us as we stand now
is too subtle to assume that we know what the geonim held.


Tir'u baTov!
-Micha

-- 
Micha Berger             It is harder to eat the day before Yom Kippur
micha at aishdas.org        with the proper intent than to fast on Yom
http://www.aishdas.org   Kippur with that intent.
Fax: (270) 514-1507                       - Rav Yisrael Salanter