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

[H Lampel via Avodah]

On 10/6/2016 4:32 PM, Micha Berger wrote:
> The Rambam, on when halakhah can be overturned, from Mamrim 2:

> 2:1- A law made by derashah, ANY later beis din can overturn. "veDan
> kefi mah shenir'eh be'einav."

> 2:2- A gezeirah, zaqanah or minhag requires a beis din hagadol mimnu
> bechokhmah uveminyan.

> 3:2- A siyag cannot be overturned at all.

> The contrast betwen halakhah 1 vs 2 & 2 is due to the Rambam's
> Accumulative model. Legislation is a matter of legal authority of the
> BD that made the new law. But interpretation of existing law is a
> matter of correctly understanding the Torah or the legislating BD.
> So, whatever the "shofeit asher yihyeh beyamim haheim" thinks is the
> truth is din.

> Which I presume is because he holds like BB 130b-131a.

--the mekor Rav Hai Gaon cites in advocating for this view.

> ... On Tue, Sep 27, 2016 at 04:26:21PM -0400, H Lampel via Avodah
> wrote:

[DIFFERING WITH A PREVIOUS BEIS DIN GADOL

At the end of your second response, you wrote,

> in a Constitutive system [attributed to Ritva, Ramban and Ran, vs
> Rambam who is said to hold the ''Accumulative'' system], whatever
> shitah he [Osniel ben Kenaz, in retrieving through his pilpul the
> forgotten laws supported by the 13 middos shehHaTorah nidreshess
> bahen--ZL] justifies would then be the version of divrei E-lokim
> Chaim that is the new din.

> With a HUGE resulting difference in the power of later authorities to
> second-guess those conclusions.]

> ZL:
>: If I understand you correctly, you are saying that it is only Rambam's
>: acceptance of an "Accumulative" view, that allowed him to  maintain that
>: a Beis Din Gadol could second-guess the drash of a  former one, but the
>: Ramban's and Ran's view does not provide that  power.

And now I add, I don't see why holding that Hashem told Moshe to transmit
opposite verdicts, between which future sages were to choose, would
entail opposing the Rambam's view about the power of later authorities
to second-guess the conclusions of earlier ones. On the contrary: If,
as alleged, the Ran holds the decision is not based on anchorage to
an original intent, that would seem to give plenty leeway for sages to
disagree with the conclusions of an earlier generation.

> :ZL: ...RMH himself wrote, :...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.

> RMB: This is not an example of overturning a conclusion, but closing
> a question they left open. As he translates the Ran "to resolve
> disputes raised by the sages".

Let me break up the Ran's wording into three parts:

      And He transmitted to him a rule through which the truth will be
    known, and that is, ''acharei rabbim l'hatos,'' and similarly, ''lo
    sasur min hadavar asher yahid lach.'' And when machlokess increased
    among the chachamim, if it was and individual against a multitude,
    they would establish the halacha as the words of the majority; and a
    multitude against a multitude, or an individual against an
    individual, as seen by the sages of that generation. For the
    decision was handed over to them, as it says, ''And you shall come
    to...the judge that will be in those days...and they will tell you
    the verdict,'' and similarly, "lo tasur."

      Behold [this means] that He gave permission to the sages of the
    generations to decide between opinions in machlokess of the sages
    according to how it seems to them.

      And even if those who preceded them were greater than them and
    more numerous than them, for such it is that we were commanded to
    follow that consensus of the sages of the generations who will agree
    to the truth or otherwise, and this is made clear in many places.

It's true that in the first part he is specifically speaking of where 
the sages are not opposing a past majority opinion. But, especially in 
view of the third part, I see the second part as abstracting the 
principal to broaden its application, acting as a segue to the last 
part, which then expands it even further, to allow them to side againsta 
majority of the past ''even if those who preceded them were greater than 
them and more numerous than them, for such it is that we were commanded 
to follow that consensus of the sages of the generations who will agree 
to the truth or its opposite.''

I.e. the Ran is saying that the principal behind the permission given to 
the sages of each generation to follow their own reasoning to decide 
between open questions, entails their ability to disagree even  with the 
conclusions reached by the majority of sages in the previous generation. 
If the Ran was still speaking of merely deciding issues disputed by two 
multitudes,why would the circumstance that the sages of either side were 
greater or more numerous than they, require their being given permission 
to resolve that question?  And what would one think instead? That they 
are not allowed to address and resolve the question?

Zvi Lampel

ומסר בו כלל אשר בו יודע האמת, והוא אחרי רבים להטות, וכן לא תסור מן הדבר 
אשר יגידו לך 96 ‏. וכשרבו המחלוקות בין החכמים, אם היה יחיד אצל רבים היו 
קובעים הלכה כדברי המרובים, ואם רבים אצל רבים או יחיד אצל יחיד כפי הנראה 
לחכמי הדור ההוא, שכבר נמסרה להם ההכרעה. כאמרו 97 ‏: ובאת אל הכהנים הלוים 
או אל השופט אשר יהיה בימים ההם ודרשת והגידו לך את המשפט, וכן לא תסור. 
הרי שנתן רשות לחכמי הדורות להכריע במחלוקת החכמים כפי הנראה להם, ואפילו 
אם יהיו הקודמים מהם גדולים מהם ורבים מהם, שכן נצטוינו ללכת אחרי הסכמת 
חכמי הדורות שיסכימו לאמת או להפכו, וזה מבואר בהרבה מקומות 98 ‏•




[Email #2]

RMB: The difference between these two models is more whether:

1- G-d gave neither position at Sinai, and the poseiq's job is to
extrapolate and interpolate from what we have to created new positions
than then "Accumulate", or
2- Hashem gave both positions at Sinai and therefore it is the job of
the poseiq to decide which shitah should be "Constitute" the din.

IOW, how do we understand "peirush" -- is it a tool for posqim to use
> to invent new halakhah, or something inherent in the Torah for posqim  > to discover?

ZL: To my mind this is not a matter of either/or. As I see it, all hold 
that analysis of  pesukim to reach a ''Peirush'' thereof is a tool for 
poskim to use to discover ''new'' halachos that were inherent in the 
Torah for them to discover. When Chazal-poskim did not have extant data 
from predecessors sourced to Sinai that explicitly addressed a situation 
(remember, Rambam begins his Mishnah commentary stating that Moshe 
received and transmitted every detail of performance for every mitzva), 
they looked to statements from them from which they could decipher the 
correct halacha. They also utilized drashos of pesukim and a tool with 
which to extract and thereby discover halachic details inherent in those 
pesukim (because they were so encoded in them by Hashem, who also 
provided the methods of drash).
> > : 1) Together with every mitzvah that HaKadosh Baruch Hu gave to > 
Moshe : Rabbeynu, He gave its payrush... and everything included in > 
the : posuk... This is the meaning of the statement, "The general > 
principles, : the particulars, and the details of the entire Torah > 
were spoken on : Sinai" (Sifra, Vayikra 25:1)," namely, that those > 
matters which may : be extracted through the interpretive rule of > "the 
general reference : written in the Torah followed by a > particular 
reference," or through : any of the other interpretive > rules, "were 
received by us through Moshe : [who received them from > God] on Sinai." 
 > > Rambam here tells you that by "peirush" he means the former -- we > 
received through Moshe the interprative rules for creating the > 
particulars.

Technically, in this passage (as opposed to the one in Shoresh Shayni of 
Sefer HaMitzvos, about Osniel ben Kenaz) the Rambam is speaking of 
drashos found to support already known details that were known to have 
been explicated by Hashem. But if you merely mean to say by extension 
that when these rules, having been given at Sinai, are used to generate 
details no longer extant, the results have Hashem's imprimatur, then I 
agree. But again I go a step further and say they were rightly 
confident,successfully reconstructed the originally intended detail 
accurately ( just as the sages were confident that Osniel ben Kenaz was 
successful in accurately retrieving the new mitzva-details originally 
generated while Moshe Rabbeynu was alive, but which became lost upon his 
death).


> He could equally as well be saying the latter definition [of  > "peirush" --... something inherent in the Torah for posqim to > 
discover], except that this would require ignoring how the Rambam > 
himself says machloqes works.

I don't see how Rambam's explanation of how machlokess works is at odds 
with the fact that the sages saw the peirushim of pesukim as being 
inherent in the Torah's pesukim.--even if  you look at the ''anafim'' to 
which the Rambam restricts machlokess, as new requirements in ideally 
performing mitzvos, or  in assigning halachic status to people or 
objects. But anyway, machlokos are also about what the original way 
mitzvos were meant to be performed, whose protagonists rally proofs from 
pesukim not as to a preferable way to perform a mitzva, but as to the 
only way.

Now, the latter case brings up a problem, a solution to which bears 
seriously on the Rambam's shittah about loss of oral laws Hashem stated 
at Sinai. There is a machlokess Tannaim over whether the minimum size of 
a sukkah is 4 amos square or 6x6 tefachim or 7x7 tefachim. Yet the 
Rambam says that Hashem told Moshe explicitly exactly how to perform 
every single mitzva. (He uses Ayin Tachas Ayin never meaning anything 
beyond monetary compensation as an example: that pri etz hadar meant an 
esrog never was an optional matter. And in using Sukkah as an example, 
he lists not only the laws that women, children, sick or travelers are 
exempt, but also the minimum and maximum dimensions. And he states 
categorically that one of the things Hashem told Moshe was that the 
minimum area of a sukka is 7x7. Now, if it is a machlokess, how can the 
Rambam assert that Hashem told Moshe the answer, and that this answer 
was transmitted just as was the identity of pri etz haddar?

There is no escaping the conclusion that the Rambam holds that 1. Hashem 
told Moshe the minimum shiur; 2. That shiur was somehow lost; 3. the 
darkei pesak are so efficient in discovering the original intent that by 
applying them we can confidently conclude what the original intent was, 
and 4.the way machlokess works is that whereas no one would question 
whatever was extant from Sinai, the anafim over which there can be 
machlokoss include facts that were told at Sinai but for whatever reason 
were lost.

> Skipping ahead to where you address that: : One must strive to get a > complete picture of a Gaon's or rishon's : position, and not stop at 
 > some broadly-worded statements, ignoring further : qualifications... 
 > > Except here there are no further qualifications. You are arguing 
from > example, not contrary explanation. [Frm email #2: You are arguing 
 > that rishon X couldn't mean what he actually said, because there are 
 > counter-examples in specific dinim.]

I had asked what I said that you're referring to, and I still don't have 
an answer. Where or what is ''here,'' for which there are no further 
qualifications? Please quote my words that are arguing from example vs 
explanation, where I'm arguing that rishon X couldn't mean what he 
actually said because there are counter-examples in specific dinim. What 
I wrote immediately preceding "One must strive to get a complete picture 
of a Gaon's or rishon's position, and not stop at some broadly-worded 
statements, ignoring further qualifications..." was:

A complete reading of the Ramban (Devarim 17:11) and the Drashos HaRan 
11 will show
that they held that the obligation to obey Beis Din rests in the supreme
confidence that in a given situation and time, the Beis Din is correctly 
corresponding to the original intent.

The Ramban aon Devarim 17:11 and Drashos HaRan 11 are clearly 
explanatory and over-arching, not examples in specific dinim.

If, on the other hand, you were skipping back to my citing of Rambam on 
shofar, just one of four citations I brought to prove my point, let me 
know, and I'll explain why even if the shofar citation were taken 
independently of the other three citations, I believe your objection is 
not valid.

> At most it would show that the broad statement might be a rule that  > yet has exceptions. (Eg the cases where the SA doesn't follow his > 
self-declared "beis din".)

There is also the possibility that what looks like an exception to the 
rule is really an indication that one should reexamine the rule to see 
if he possibly misunderstood it. He may then find that the rule 
correctly understood works wonderfully without exceptions.

[email 2:Mashal:

> The Rambam holds a pesaq is a human invention. [It means t]hat G-d  > giving the kelalei hapesaq (in grandfather form -- they too were > 
subjevt to pesaq over the millenia!) does not mean He gave every > 
conclusion, and therefore that both tzadadim could be right.

Not only the Rambam, but the rishonim (R. Nissim Gerondi in Drashos 
HaRan and the Ritva) to whom the essay attributes the ''Constitutional 
View'' as well, do not say that Moshe's not being directly told which 
side of a machlokess to teach means that both sides are right. The Ran 
is most explicit that only one side could be right, and the Ritva makes 
no statement about correctness. Both explicitly reject the idea that 
opposite conclusions can both be true. This does not contradict the fact 
that all opinions formed during the process of striving to ascertain the 
correct applications of the halachic factors to a given situation, even 
those conclusions that are incorrect, form bona fide limud Torah, and in 
that sense are divrei E-okim Chaim (a typical approach by rishonim and 
acharonim to avoid the impossiblity that Hashem would have given Moshe 
contradicting halachos).

> The Rambam couldn't hold that -- it defies Aristo's Logic. Or Boolean  > Logic. <https://en.wikipedia.org/wiki/Law_of_noncontradiction> > > 
The majority of rishonim give HQBH "ownership" of all the > conclusions, 
even though they contradict. Choosing not to > reinterpret the gemaros 
-- "kulam nitnu miro'eh echad", "49 panim > tahor, 49 panim tamei", 
"eilu va'eilu" etc... to fit the Law of > Non-Contradiction.

If it were true, this would be an argument from silence. But it's not 
even true. Rashi, Tosefos, and the Ran (and later, Maharshal, Maharal, 
R. Yisroel Salanter, R. Yitchak Hutner, R. Gedlaiah Schorr) qualify such 
statements in ways that avoid transgressing the law of 
non-contradiction. So who are the rov rishonim who do not?

...

  > Therefore, according to the Rambam, there could be a solid proof that
> an earlier beis din erred, and then the law would change. Authority > is only an issue with dinim derabbanan (gezeiros and taqanos), and > 
who can repeal a law, not with interpetation of existing law. > > 
Whereas according to rov rishonim, it's a matter of which BD could > 
give more authority to one valid shitah or the other.

I don't understand this sentence.


: to an opposing opinion (such as that of the Karaites) that entailed
: strongly-expressed verbiage...

> My real problem here is that you're calling for an esoteric > interpretation,that the rishonim quoted didn't really mean what they 
 > said.

Chas V'chalilah!!I utterly oppose that nonsense, and made that clear in 
past posts. As  you write,

> If the Rambam doesn't mean what the book says, we should just drop > any any attempt to determine what he really did hold. This ways lies 
 > non-O academic understandings of the Moreh and other such shtuyot; > 
the methodology is useless. The esoteric interpretation claims that 
Maimonides shrewdly said things he disbelieved. I'm advocating taking a 
rishon at his word, and furthermore getting a thorough and complete 
picture of a rishon's shittah, and against (a) focusing on one 
broadly-sounding statement and ignoring others (broadly stated or 
otherwise) that temper and clarify the rishon's position, and (b) 
treating the rishon as if he is oblivious to reason and/or to talmudic 
passages even if he may not mention them.
> > Jumping back for a bit: : 3) Temura states "1,700 kal vachomers and > 
gezeyra shavvos and dikdukei : soferim became forgotten during the > 
days of mourning for Moshe, but : even so, Othniel ben Kenaz > retrieved 
them through his pilpul... > > The difference being, that in an 
Accumulative system, Osniel ben > Kenaz could hypothetically have been 
*wrong*; BH he wasn't. There > was a particular shitah that was made 
din, and he managed to retrieve > it. Whereas in a Constitutive system, 
whatever shitah he justifies > would then be the version of divrei 
E-lokim Chaim that is the new > din.

Again, the Drashos HaRan (to whom is attributed the Constitutive system) 
emphatically holds that as a rule the analysis produces the emes (Drash 
11). And the Rambam (to whom is attributed the ''Accumulative'' system) 
also holds that the conclusion of the Bes Din is the version of divrei 
E-okim Chaim that is the new din. How do we know Osniel ben Kenaz wasn't 
wrong? Because the nation and Chazal recognized as flawless the results 
of the methodology, in the hands of experts such as he. (See above 
regarding the minimum shiur of a sukkah.)


[Email #3]

RMH and ''Constitutional'' system vs. ''Accumulative'' system

RMH writes,

...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 ... 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.

It is not clear that the Ran (R. Nissim Gerondi) holds that after Hashem 
''showed'' him the future sages having their disputes, ''Moses passed on 
this multifaceted body of knowledge'' in the sense of explicitly 
transmitting opposing conclusions between which the future sages would 
pick.

Here is part of the Drashos HaRan:

Since the words of those who declare something tameiand those who 
declare it tahor are intrinsically contradictory, it is impossible for 
both sides of the dispute to be conforming to the Truth. How then could 
we say that they were both told to Moses by G-d? Does G-d have any 
doubts as to what the Truth is?! ^But the answer is that G-d [Himself] 
commanded us to follow the Sages .... [A]nd we must also believe that if 
the Sages should agree to the opposite of the Truth-and we could know 
this through a Bas Kol or a prophet-it is still improper to veer away 
from their consensus (No. 5).

Now, this approach will satisfy those who hold that there are no reasons 
behind the mitzvos at all and that they all simply follow the 
[arbitrary] Will of G-d .... But we do not choose this approach. We 
believe that everything the Torah warns us against is indeed 
[intrinsically] harmful to us, and creates a negative imprint on our 
souls, even though we may not know the mechanics behind that process. 
Therefore, if the consensus of the Sages is that something [that is 
tamei is] tahor, so what?! Won't it still harm us and produce its 
natural effect, whatever it is? … How could the nature of that thing 
change itself just because of the Sages' consensus that it is permitted? 
This is impossible short of a miracle. It would therefore seem that we 
preferably /should/ follow the revelation of a prophet or Bas Kol, which 
would tell us the true nature of the thing.

The Torah took means to prevent a misfortune that can always arise, and 
that is the divergence of opinions and the creation of machlokess, 
almost creating a situation of two Torahs. The Torah's remedy for this 
ever-present danger was to hand over to each generation's Sages the 
right to resolve halachic questions. For in the majority of cases this 
will result in both a remedy [of the problem of machlokess] and the 
correct decision.... And even though there is the extremely remote and 
practically absurd possibility that they may make a mistake, the Torah did
not concern itself with that remote danger. The risk is worth taking for 
the benefit accrued.

Furthermore, I feel that it is really impossible for any harm at all to 
come to one's soul by following the Sanhedrins decision ... [F]or the 
benefit which the soul receives through [its submissiveness to] the 
Sages' decisions and decrees-that is the thing which is most beloved by 
Hashem .... One's following their counsel and one's submission to their 
words will remove from his soul all the harm produced by eating the 
forbidden thing [which the Sages mistakenly permitted]. This is why the 
Torah
commanded us, "You shall not turn aside from the thing they tell you, 
right or left," [upon which the Tradition comments, even if they tell 
you that Right is Left] (Drash 11).

The only difference between the Ran and the Rambam is that the Ran 
speaks directly about the Gemora that states that Hashem showed Moshe 
the future machlokos without explicitly telling him the correct pesak. 
Rambam is silent on that passage. But whether the Rambam takes it 
literally or as a poetic way of saying that Hashem left some matters to 
be solved by applying the interpretation rules, he and the Ran are in 
agreement as to the basics.

·Both the Ran and the Rambam begin their description of the appearance 
of machlokess over mitzvah performance with the broad statement that 
Hashem taught Moshe the entire oral law.

·Both the Ran and the Rambam then go on to relegate the issues of 
machlokess to anafim or details that had to be defined in order to 
address circumstances the extant information did not directly address.

·The Ran, even more explicitly than the Rambam, maintains that only one 
side of future machlokos represents the truth and Hashem's original intent.

·Both the Ran and the Rambam maintain that the interpretation rules 
Hashem gave Moshe, and which Moshe transmitted to the nation would, if 
accurately applied, determine which side of future machlokosin is correct.


·Both the Ran and the Rambam agree that Hashem wants us to follow the 
results of analysis using the methodologies he prescribed as can be 
comprehended through human comprehension, even in the rare instances 
where this may be at odds with what can be known through prophecy or bas 
kol.

The Drashos HaRan (Drash 7) refers to the majority rule as a means to 
uncover an originally intended true side of a machlokess. Regarding the 
halakhic disputes and conflicting views held by the sages, he states,

Moses learned them all by divine word with no resolution, every
controversy in detail. But [God] gave him a rule /through which one
knows the truth/, 'Favor the majority opinion'...

The last sentence reads, in Hebrew,

/aval massar lo klall yivadda bo ha-emmess/.

This contradicts the idea that the Ran differs with the Rambam's view
that the sages were invested in recovering an original intent.

Zvi Lampel