Rechtsgeschichte
The History of Halakhah, Views from Within:
Three Medieval Approaches to Tradition and Controversy
by Moshe Halbertal
Copyright 1994 by Moshe Halbertal
Table of Contents
Introduction
A. The Retrieval View
B. The Accumulative View
C. The Constitutive View
Introduction
Few texts within halakhic literature attempt to describe the history of
halakhah. The ones that do, vary from short comments focusing on a
particular period to comprehensive and ambitious attempts to structure a
chain of knowledge leading from Sinai down to the author's own time.
Prominent examples of such text include: Igeret R. Shrira Gaon, the
introduction by R. Nissim Gaon to his Sefer ha-Mafteach le-Manulei
ha-Talmud, Shmuel ben Hofni's Mavo la-Talmud, Abraham ibn Daud's Sefer ha-Kabbalah,
Maimonides' introduction to Perush ha-Mishnah and the Mishneh Torah, Meiri's
introduction to Avot and to Berachot, Sh'arei Zion by Yitzchak di-Letas, the
Introduction by R. David ha-Kokhavi to Sefer ha-Batim, Chisdai Crescas'
introduction to Or ha-Shem, Meggilat Yochasin of Abraham Zakut, Maharshal's
introduction to his commentary on Hullin, Naziv's Hakdem Sheelah - his
introduction to his commentary on Sheiltot, and few others. Among the
concerns expressed in these texts are: establishing an order of transmission
of knowledge; analyzing crises within those complicated chains;
understanding and describing the emergence of debates and controversies
within the body of halakhic knowledge; establishing relations of authority
between different generational layers of the tradition. My aim in this essay
is not to examine these texts in constructing a history of halakhah,
although many of them would be of great value in such an endeavor. My
question, is rather: how is the history of knowledge viewed by such texts
themselves, and what guides them in their description of the history of the
body of halakhic knowledge? The aim of this essay is thus an analysis of
certain moments of self-reflection articulated by halakhic authorities
concerning the history of halakhic learning, focusing not on the history of
this body of knowledge per-se, but as it is viewed from within.
There is yet another more basic question which bears far-reaching
implications on our analysis. The history of halakhah is not a traditional
subject treated within the framework of halakhic learning [this statement
may be true about any historical writing within traditional Jewish sources],
and for that reason, moments of self-reflection on history of halakhah in
the writings of halakhic authorities are both rare and precious. Since
articulating any view whether partial or comprehensive of the history of
halakhic learning is not part and parcel of halakhic study itself, in
addition to understanding the substantive picture outlined by an author, we
must address a more fundamental issue: i.e., why the author is engaged in
such an attempt in the first place, and what connection might be between the
way an author structures the history of halakhah and his own work.
I would like to examine three radically different models of the history of
halakhah as they are presented from within by medieval authors: Abraham ibn
Daud, who follows Geonic tradition; Maimonides who diverts from this
tradition; and Nachmanides, who does not offer a complete account of the
problem but does seem to have made some important comments leading in a new
direction, to be developed further by his students. This controversy
concerning structuring the history of halakhic knowledge is rooted in
alternative theological concerns, which in turn help to recreate the
histories of knowledge. I will like to show how the various methods of
structuring the history of halakhah as told from within, affect basic
notions of the halakhic process such as the role of legal reasoning, notions
of authority, the conception of halakhic "truth" and the place of
controversy and its status. The models sketched by each author shape and
reformulate the fundamental aspects of the system in a completely different
manner.
A. The Retrieval View
Let us turn, first of all, to the view I will entitle the 'retrieval model'
held by Abraham ibn Daud, who follows a long tradition among the Geonim.
According to this model, the halakhic process is understood as a orally
trasmitted ody of revealed halakhah from generation to generation. Moses
received the entire written and oral Law, and at its source, tradition was
complete and perfect. The entire halakhah was revealed and transmitted to us
through a continuous unbroken chain of scholars who received from one
another. Through time, forgetfulness and carelessness (due also to harsh
political circumstances) caused this knowledge to erode. Halakhic reasoning
became essential, not merely to organize, justify and transmit given
knowledge, but as a vital tool in the desperate attempt to reconstruct,
through argumentation, the lost portions of a once complete body of
knowledge. The main advantage of such a view lies in the elimination of
human creativity in the halakhic process and the grounding of the oral Law
in God's revelation. From that perspective, there is no difference between
the source of authority - both the oral and the written Torah are founded on
direct revelation. It is no wonder that the birthplace of some of the most
important articulations of this picture are created in the context of anti-Karaite
polemics.[1]
This view of the history of halakhic knowledge, also determines the aim of
writing a history of halakhah. The task of such an undertaking is to
establish the chain of transmission as continuous with no lapses from Moses
to the author's own days. It thus retraces the present halakhah to its
source and grounds it in God's revelation to Moses. This aim is expressed in
the programmatic statement made by Abraham ibn Daud in his introduction to
Sefer ha-Kabbalah:
The purpose of this Book of Tradition is to provide students with the
evidence that all the teachings of our rabbis of blessed memory, namely, the
sages of the Mishnah and the Talmud, have been transmitted: each great sage
and righteous man having received them from a great sage and righteous man,
each head of an academy and his school having received them from the head of
an academy and his school, as far back as the men of the Great Assembly, who
received them from the prophets, of blessed memory all. Never did the sages
of the Talmud, and certainly not the sages of the Mishnah, teach anything,
however trivial, of their own invention, except for the enactments which
were made by universal agreement in order to make a hedge around the Torah.
Sefer ha-Kabbalah seeks to establish the chain of transmission beyond any
doubt , and to prove that asides from some takanot, there is no human
component in the halakhah. Ibn Daud's view which is certainly connected to
anti Karaite polemics continues a long trend in Geonic writings; all of them
subscribe to the same view of structuring the history of halakhah and
perceive the project of writing such a history as a confirmation of the
ongoing chain of transmission.
R. Shrira Gaon structured the history of halakhah on the same model,
although his account is more complex than the mere mention of the links in
the chain of tradition. The question posed to R. Shrira Gaon by Kiruan
community articulates the problem: the overwhelming presence of R. Akiba's
students in the Mishnah and the fact that the Mishnah was written only in
the days of R. Yehudah the Prince, would seem to support the Karaite
challenge that the Mishnah is a late invention of the rabbis. In essence,
the question troubling the Kiruan community was: If the Mishnah is a
received tradition, why did the early sages leave so much of the task of
formulating and presenting it in the hands of later generations? In his
response, R. Shrira Gaon cannot merely refer to a chain of transmission, but
must address the troubling challenge of Karaism to such a view; the model he
formulates is thus complex. Although he adheres to the contention already
voiced by Sa'dia that the Mishnah is a received tradition,[2] he claims that
the particular halakhot were ordered and formulated in different versions by
different schools and that R. Yehudah the Prince based his Mishnah on R.
Akiba's version. The halakhot taught by different sages were essentially
identical but each had his own manner of presenting and ordering them. The
presence of Akiba's students in the Mishnah is not a proof that the halakhot
are their own invention but that their version of the Mishnah serves as the
basis of R. Yehuda's Mishnah. According to R. Shrira Gaon, there is a human
component to the oral tradition of halakhah , but this component affects
only the version of the norms and the method of their organization, but not
their content.[3] This variation on the strict notion of tradition enables
R. Shrira to explain the presence of relatively late generations in the
Mishnah. In his introduction to Mafteach le-Man'ulei ha-Talmud, R. Nissim
Gaon follows the same line of argument: "..We have no need to bring evidence
which proves the authenticity of the sages' tradition (kabbalah) ...since
our predecessors made it clear, but I will clarify the time in which the
Mishnah and the Talmud were written and I will show that the preserved
kabbalah and tradition never faded from the nation.." R. Nissim then
describes the Mishnah in the following terms: "He (R. Yehudha the Prince)
made up his mind to gather everything they had in their hands from the
tradition ...".
The main problem with such a model is the presence of controversy within the
body of halakhic knowledge. If halakhah is independent of the fluctuations
of human legal reasoning which naturally produce controversy, why are there
controversies in the Mishnah and Talmud? This problem is immediately raised
by ibn Daud, and his answer is that neglect on the part of a certain segment
in the chain gave rise to controversy:
Now should anyone infected with heresy attempt to mislead you, saying: "It
is because the rabbis differed on a number of issues that I doubt their
words," you should retort bluntly and inform him that he is "a rebel against
the decision of the court"; and that our rabbis of blessed memory never
differed with respect to a commandment in principle, but only with respect
to its detail; for they had heard the principle from their teachers, but had
not inquired as to its details since they had not waited upon their masters
sufficiently. As a case in point they did not differ as to whether or not it
is obligatory to light the Sabbath lamp; what they did dispute was "with
what it may be lighted and with what it may not be lighted." Similarly, they
did not differ as to whether we are required to recite the Shema evenings
and mornings' what they differed on was "from when may the shema' be recited
in the evenings" and "from when may the Shema' be recited in the mornings."
This holds true for all of their discussions.[4]
In other words, ibn Daud argues, all halakhic knowledge was available and
explicits in the earliest stages of tradition, and it is the students, who
did not clarify the complete details of all the rules from their teachers,
who are to blame for the crisis in the transmission of tradition and for the
rise of controversy. . From then on halakhic reasoning evolved as an attempt
to uncover a lost body of knowledge due to students' neglect.
The existence of controversy obligates authors who hold such a model to
recognize some sort of crisis within the chain of transmission. It includes
an implicit dangers as well. Demonstrating the presence of crisis, threatens
to cast doubt on the credibility of the process of transmission as a whole.
If both neglect and forgetfulness eroded a given body of knowledge
transmitted from Moses onwards, what guarantees the credibility of the core
of tradition itself? Authors who hold such a view naturally tend to
marginalize the extent of controversy within halakhah in order to preserve
the credibility of the chain of transmission. Ibn Daud claims that no
controversy exists concerning the main body of halakhah:"...Our rabbis of
blessed memory never differed with respect to a commandment in principle,
but only with respect to its detail".
The picture of the history of halakhah presented by the Geonim reappears in
later constructions of the history of halakhah. In Nieto's Mate Dan (ha-Kuzari
ha-Sheni), the main elements of ibn Daud's account are repeated. Nieto
cites the talmudic passage which accounts for the emergence of controversy:
"When the disciples of Shammai and Hillel who had insufficiently studied ,
increased in number, disputes multiplied in Israel and the Torah became as
two Torot (T.b. Sanhedrin 88b). He offers the following explanation: "'They
studied insufficiently' i.e., they didn't stay with their teachers long
enough to receive the interpretation of the principles and thus controversy
emerged" (p. 63) One innovative element in Nieto's account - although it
naturally follows the internal logic of the scenario - is his conception of
the authority of the ancients. According to such a model, the source of the
authority of early generations of sages over sages of later generations is
in the proximity of the earlier generations to the first stages of the
transmission before the process of erosion was enhanced. Karo's argument
that the authority of the Mishnah stems from the legally binding agreement
made by the Amoraim not to argue with the Tanaim, is explicitly rejected by
Nieto. He contents instead that: "..since they [the Amoraim] thought that
all the words of the Tanaim are received (kabbalah) and because the Tanaim
had received from earlier generations there was no controversy in what they
said" (ha-Kuzari ha-Sheni p. 67).[5]
The retrieval picture of the history of halakhah raised by the Geonim, and
articulated by ibn Daud and later authors, thus shapes basic elements of the
halakhic process: the account of the emergence of controversy, a clear
conception of authority and a definite secondary role for halakhic
reasoning. All these are challenged by Maimonides, who presents a different
structure of the history of halakhic knowledge.
B. The Accumulative View
Maimonides departed from the Geonic picture of the history of halakhah and
from ibn Daud's formulation.[6] He was the first to claim that alongside the
received tradition from Moses, the sages introduced new interpretations of
the Torah of their own invention. The halakhic process in Maimonides' eyes,
is therefore accumulative, each generation adding substantive norms derived
by their own reasoning to the given, revealed body of knowledge.[7] In the
previous model, the relation between halakhic reasoning and revelation was
that of an attempt to uncover lost data, or to attach received oral material
to its source in the written Torah. In Maimonides' view, the relation is one
of derivation. The sages, equipped with rules of derivation, deduce from the
given material of revelation - both oral and written- new norms which in
turn become part of the accumulative material of halakhic knowledge. Only in
relation to the newly derived halakhot controversy emerges, since these
hermeneutical inferences are not strictly logical inferences where a
deduction necessarily follows from given premises.[8] In the received
normative material transmitted by the sages of each generation controversy
according to Maimonides never occurs. In his view, the phenomenon of
controversy is therefore restricted to the normative material which is newly
derived by hermeneutical inferences.[9] On this point, in addition to his
unique view of the accumulative nature of the history of halakhah and the
power of derivation inherent in hermeneutical meta-norms, Maimonides diverts
from ibn Daud's account of the emergence of controversy. Maimonides issues a
direct and blunt attack on ibn Daud's conception:
"But the opinion of one who thought that also the laws wherein there is
disagreement are received from Moses, and that disagreement took place due
to an error in receiving the tradition or due to frightfulness, i. e., that
one [disputant] is correct in his tradition and the second errs in his
tradition, or he forgot or he did not hear from his teacher all that he
should have; and he [who holds this opinion] offers as evidence for this
what they said, "When the disciples [of Shammai and Hillel who had
insufficiently studied, increased in number, disputes multiplied in Israel
and the Torah became as two Torot" . Behold this, as God knows, is a
despicable and very strange position, and it is an incorrect matter and not
compatible to principles. And he {who holds this position] suspects people
from whom we received the Torah and this is falsehood.".
Controversy, as Maimonides explains in the next passage, actually arises due
to the inherent limitations of legal reasoning, while he describes the ibn
Daud's model in harsh terms as 'despicable and very strange'. The students
of Hillel and Shamai are not to blame for neglect in transmission of
tradition:
And when the study of their students became less and the methods of argument
became weakened for them in comparison to Shammai and Hille, their teachers,
disagreement befell them during the give-and-take on many issues, because
each one of them reasoned according to the power of his intellect and
according to the principles known to him...And in this manner befell
disagreement, not that they erred intheir receiving of tradition and one's
tradition is true and the other's false... .
It seems that the problem which concerns Maimonides is that by the attempt
to ground the Mishnah and the Talmud in the solid foundation of revelation
and tradition, tradition itself is put into question. By explaining
controversy as neglect and forgetfulness in the process of transmission,
proponents of the retrieval model thus cast doubt on the reliability of
tradition. In Maimonides own words one who make such a claim "suspects
people from whom we received the Torah". Paradoxically, ibn Daud's
minimization of human inventiveness in the history of the halakhic process
results in the undermining of the authority of tradition. On the other hand,
Maimonides' attempt to guard the purity of the process of transmission in
the history of halakhah, detaches a major portion of the legal material from
its direct grounding in revelation and gives rise to a contingent foundation
for the authority of the oral law.
According to Maimonides, while no argument can be raised against the
received material of halakhah, a later generation can in principle debate
the newly derived halakhot of previous ones. The authority of the Mishnah
cannot rest solely on tradition, since in those areas of debates there is no
tradition; its authority, rather, rests on the fact that the Mishnah and the
Talmud where widely accepted by the nation of Israel as a whole.
Theoretically Amoraim could have argue with Tanaim, and Geonim with Amoraim,
concerning the newly derived halakhot which constitutes most of the material
of the Mishnah. The Mishnah's and Talmud's authority is thus founded on the
historically contingent fact of acceptance, a ground for authority that was
rejected by later adherents to the geonic approach. The Maimonidean
accumulative model, which opposes the geonic tradition, provides an
alternative understanding of legal reasoning and its role both in
controversy and intergenerational authority. According to the Maimonidian
accumulative view, the role of legal reasoning is not to retrieve but to
derive; controversy arises in the process of derivation rather than through
a crisis in transmission, and the authority of the Mishnah and Talmud is
based not only in manifesting an ongoing chain of tradition but also in the
historically contingent fact of widespread acceptance. These two variant
accounts of the history of halakhah especially the emergence of controversy,
provide completely different understandings of its fundamental aspects.
It is important to stress, that according to both ibn-Daud's and Maimonides'
accounts, the spread of controversy is viewed as a fall, since both - for
completely different reasons - assume a notion of truth in halakhah. Ibn
Daud's conception, can be described as a simple correspondence theory of
halakhic truth. An halakhic opinion is defined true or false relative to the
complete revelation of Sinai. For example, in a controversy concerning the
proper time to recite the Shema at the evening, the determination of the
true opinion or the false one is dependent on the question which opinion
corresponds to the rule which was given at Sinai and was lost in the process
of transmission. As we saw Maimonides rejected this correspondence theory of
halakhic truth, since he asserts that in case of controversy there was never
a prior received tradition which can serve as a criterion to examine the
correctness of the matter. Nevertheless, Maimonides does assume a conception
of halakhic truth which is analogous not to correspondence theory of truth
but to what in modern philosophy is called coherence theory of truth.
According to Maimonides, a margin of debates is inevitable in human legal
reasoning, since such a reasoning is not conducted within the framework of
strict logical deductions. Yet, in principle, a high quality of deductive
powers combined with shared premises and methods of deduction, a correct and
agreed upon answer can be reached. Such an answer will be correct in the
sense that it successfully coheres with the earlier premisses which this new
conclusion has been derived from. Its correctness is not a function of its
not in the sense of corresponding to a prior given halakhic tradition
grounded in the complete revelation. According to Maimonides, it is for this
reason that Hillel and Shammai who shared the deductive method and high
quality of deductive powers had only very few halakhic disputes:
...for when two people are identical in understanding and in study and
knowledge of the principles from which they learn, there will not occur at
all between them disagreement in what they learn by one of the hermeneutic
principles, and if there will disagreements they will be few just as we have
never found disagreements between Hillel and Shammai other than in a few
laws, for their methods of study in all they would lean by one of the
principles were similar to one another, and also the correct general
principles which were held by one were held by the other
Maimonides then proceeds to explain why in the period of the students of
Hillel and Shammai disputes increased: "And when the study of their students
became less and the methods of argument became weakened for them in
comparison to Shammai and Hillel, their teachers, disagreement befell them
during the give-and-take on many issues,...". Maimonides claims that the
students of Shammai and Hillel cannot be blamed for the increase in
disputes, in the way ibn Daud implies. Unfortunately there is a natural gap
between intellectual skills of different scholars and no one can be blamed
for not reasoning above his skills. Yet, in case of high quality of
intellectual capabilities with the application of correct legal reasoning,
disputes could be significantly minimized. The retrieval view of ibn Daud
and the accumulative approach of Maimonides imply a different conception of
what counts as a true correct halakhic opinion.[10] Let us turn to the third
model which altogether breaks with the very conception of a correct halakhic
answer.
C. The Constitutive View
Although less developed, the third model can be traced to the writings of
Nachmanides and his students, the fourteenth century Catalonian scholars Yom
Tov Ishbili (Ritba) and Nissim Gerondi (Ran). This approach, which I will
call the constitutive model, has its source in the explanation Nachmanides
provides for obeying every legal ruling made by the court even if it says
"of the right that is left and of the left that is right": "...Scripture,
therefore, defined the law that we are to obey the Great Court...For it was
subject to their judgment that He gave them the Torah, even if it appears to
you to exchange right for left". This explanation does not recognize an
a-priori right and left; rather, the court itself defines what is right and
what is left. In other words, the court cannot be mistaken about the
halakhah, because tit has the privilege granted by the author, to constitute
the very meaning of the text.[11] According to the constitutive view, legal
reasoning does not retrieve a given lost body of knowledge, nor does it
derive new norms from a fixed body of transmitted tradition, but rather it
constitutes those norms. Nachmanides' explanation - "For it was subject to
their judgment that He gave them the Torah" reappears in his students' work
who provide new account for controversy. While both ibn Daud's and
Maimonides' attempt to explain the rise of controversy focused on the story
of the students of Hillel and Shammai which describes controversy as a sign
of decline Ritba comments instead, on a talmudic statement with a different
orientation to the problem:
'These and these are the words of the living God'. The French Rabbis of
blessed memory asked how it were possible that both positions could be the
words of the living God when one prohibits and the other permits, and they
answered: When Moses ascended to heaven to receive that Torha they have
shown him forty nine reasons for prohibition and forty nine reasons for
permission concerning each rule. He asked God about this and God answered
that the matter will be given to the sages of Israel in each generation and
the ruling will be as they decide.[12]
The same question is raised by Nissim Gerondi in his Derashot ha-Ran, and
his answer explicates in fullness the constitutive account of the history of
halakhah:
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
as it is written: 'And you shall come to the priest the Levites , and to the
judge that shall be in those days' and 'You shall not deviate....".
Unlike ibn Daud's explanation that controversy arises through a crisis in
the process of transmission and 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 as ibn Daud described it,
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. The process of the dissemination of
knowledge is thus perceived as the inverse of ibn Daud's model. Ibn Daud
represents a complete and a clear cut body of knowledge at tradition's
starting point, which gradually erodes and becomes open-ended through
neglect. In the Ritba and Ran's account open-endedness and multifacedness is
the starting point while in time this open-ended body of knowledge becomes
definitive, each generation constituting - out of the multiplicity of
options transmitted to them - clear-cut norms. In this respect the
constitutive model differs as well from the Maimonidean accumulative
approach, and in his argument that controversy arose through the attempt to
derive newly reasoned norms from a clear-cut body of knowledge.[13] In
addition to a completely different account of controversy and history of
knowledge, this approach offers an alternative view of legal reasoning.
Legal reasoning is not used to reconstruct and restore a lost, perfect
moment, nor is it used to derive new norms by way of induction from given
clear premises. Instead, it constitutes and shapes an open-ended body of
material. This model affects notion of authority as well. The authority of
the scholars in matters of halakhah, does not rest on proximity to the
source, which is open-ended in any case. It is based on a privilege given by
the Torah itself that norms should be constituted by the sages. A challenge
to the interpretative process through an appeal to true 'true' meaning of
the text is ruled out, since 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".
Nachmanides was the first halakhist to introduce the bold conception that
the Torah was given: `subject to their [the sages] judgment that He gave
them the Torah'. As was shown above, this statement provided the foundation
for the constitutive approach among his school. Yet, it is important to
stress that the statement was understood differently by Ritba and the Ran.
In addition it received a third explication by another author who belonged
to Nachmanides school the anonymous author of Sefer ha-Chinukh. Ritba
understood revelation as completely open-ended and pluralistic, attributing
from God's point of view equal weight to each side of the debate. The sages
have in such a case a strong constitutive power to determine and shape the
law out of multiple equal options. In contrast, the Ran argues that although
God revealed the Torah with different opposing options, from God's own
perspective there is a right answer. Such a right answer can even be
accessed for example by a prophet, or expressed directly by God through a
'bat kol' a heavenly voice. The Ran argues innovatively that although there
is a right answer, from God's point of view, and although the sages are
aware of that right answer, they have to follow their own understanding
since `Torah is not in heaven'. The Ran's position is manifested in his
explanation of the famous story of `Tanuro shel Achnai', where the sages
refused to follow the heavenly voice which ruled according to their opponent
R. Eliezer:
..they all saw that R. Eliezer follows the truth more then them, and his
mirales were all true and right and it was ruled from heaven according to
his [R. Eiezer's] opinion, nevertheless they acted according to their
ruling. Since their reason tended to declare [the oven] impure, even though
they knew that they rule opposite the truth they did not want to purify,
because if they ruled [the oven] pure they would have transgresed the words
of the Torha. This is the case because their reason tended to [rule the oven
as] impure and the ruling was granted to the sages of the generation -
whatever they decide it is what God commanded.
According to the Ran, the sages who argued with R. Eliezer knew God's
contrary opinion on the matter through the heavenly voice induced by R.
Eliezer, nevertheless they followed their own understanding. The rule that
the `Torah is not in heaven', grants the sages a constitutive privilege,
even against God's own choice. The sages constitute the truth of the matter
from the human point of view aided by their reasoning, autonomously from
their knowledge of God's opinion. Thus, the Ran differs from the Ritba in
understanding the constitutive privilege of the sages as formulated by
Nachmanides (both use Nachmanides own terminology). Ritba, on the one hand
grants a greater constitutive power to the sages, since they shape the truth
of the matter out of a completely open-ended revelation. On the other hand,
although the sages constitutive power - according to the Ran - is more
limited in its scope, it is more daring in its application. Since, according
to the Ran, the sages constitute halakhic answers even against what they
know to be God's view of the matter. Yet, inspite of their differences the
Ritba and the Ran share the constitute approach. Both describe controversy
as rooted in revelation itself, and both assume a constitutive power of the
sages.[14] In that respect they deeply differ from the retrieval and the
accumulative models of Ibn-Daud and Maimonides.
Each of these three 'histories' has a history of its own in the writings of
halakhic authorities after the Middle Ages which needs further exploration.
Among them I would like to present a fascinating responsum of R. Yair
Bakhrakh. In this responsum which appears in Bakhrakh Havot Yair, all three
models are juxtaposed. Through his attempt to find his own way among the
different alternatives, Bakhrakh sheds light on internal problems inherent
in each model, and his discussion is of great value for further explication
of what is at stake in the way the history of halakhah is perceived.
In the first part of his responsum Bakhrakh marshals an impressive amount of
counter-evidence, to Maimonides view that on laws that were given to Moses
at Sinai there is no controversy. Through his long and detailed criticism of
Maimonides' position, R. Yair Bakhrakh shows that the Talmud is full of
controversies concerning such norms. Among the interesting talmudic material
Bakhrakh uses are not only the actual controversies that exist throughout
the Talmud on 'halakhot le-Moshe me-Sinai', but aggadic material as well
that attests to the pervasiveness of forgetfulness. Three thousands halakhot
were forgotten after Moses' death, and even Moses himself forgot halakhot
that were given to him at Sinai. Forgetfulness is imminent from the very
moment of reception and tradition can only erode further in each subsequent
stages of transmission. Bakhrakh's explanation for the rise of controversy
is thus similar to ibn Daud's and the motif of forgetting is present
throughout his responsum. He concludes: 'It is clear that forgetfulness and
controversy are present in halakhah le-Moshe me-Sinai'. (Havot Yair, 192)
After refuting Maimonides position, Bakhrakh has a wonderful formulation of
what is at stake in this debate:
Behold, the Rav [Maimonides] built a fortified wall around the oral law - in
writing that concerning [the received traditions from Moses] forgetfulness
never exists. Would that we could strengthen and rebuild such a wall! What
in my [Bakhrakh's] opinion is impossible. Indeed, all that was gained [in
Maimonides' position that there are no controversies concerning the norms
Moses received] was lost, through his declaration that the reminder of the
Sages' controversies - which constitute most of the oral Torah and almost
all of the Mishnah- are not from Sinai.
Bakhrakh points out that the price paid by Maimonides' position, which
strengthens the credibility of tradition by ruling out the possibility of
controversy, is to exclude most of the oral Torah, replete as it is with
controversies, from its divine source at Sinai. Bakhrakh, supported by
massive evidence from the Talmud itself, opts for a counter-Maimonidean
history of knowledge which roots the entirety of oral law in revelation. He
thus arrives at a position very similar to that of ibn Daud's. But in the
heat of his debate with Maimonides, Bakhrakh distanced himself from the
retrieval model on an important point. As I mentioned earlier this model
typically marginalizes the place of controversy. Bakhrakh's affirmation -
central to his argument against Maimonides - that most of the Mishnah and
the oral Torah is replete with controversies - is a diversion from the
retrieval model . This argument, used so skillfully against Maimonides,
seems, in fact to undermine Bakharakh's own position. If Bakharakh is right
in simultaneously asserting two positions i.e., that all of the oral law was
given at Sinai and that the Mishnah is composed almost entirely of debates,
it follows that most of the oral law was forgotten. It makes sense to base
the authority and meaning of the oral law in revelation at Sinai if we
marginalize the place of controversy, as ibn Daud and Nieto asserted. If
most of the oral Law was indeed forgotten, not much is gained by claiming
that it was all given at Sinai. Under the pressure of this problem, Bakhrakh
explores the constitutive approach - that all of the oral law was given at
Sinai including controversies. His examination of this view reveals other
internal conflicts in the attempt to portray an ideal structure of the
history of knowledge:
And concerning the statement in the first chapter of tractate Berakhot, that
the Mishnah and Talmud were given to Moses from Sinai, there is yet a vital
issue demands investigation: Does that mean that all the opinions mentioned
in the Mishnah and Talmud and their counterparts were revealed to Moses? As
it is said in the tractate Hagigah, the verse "all were given by one
Shepherd", refers to the opinions of those who defile and those who purify,
those who disqualify and those who approve, those who prohibit and those who
permit, those who obligate and those who acquit. And the Ritba said that the
expression "These and these are the words of the living God" means that God
told Moses that ruling should be handed over to the generation's sages... .
Bakhrakh then proceeds to criticize the constitutive view:
..This is questionable, since what advantage could come from the sages'
decision that something is pure if it is truly impure and that [truly impure
thing] has the power to arouse the Kelippah and defilement and the Sitra
Akhra? Of what good is a physician's contention that poison is the elixir of
life? We could content ourselves with what, in truth, is an unsatisfactory
explanation, saying that impurity and the evil husks do not gain strength
with every instance of contact or eating or intercourse or any loathsome
act, but only because certain acts are evil and despicable in the eyes of
God; and if God would say that the court can decide the matter as they wish,
no harm would be done... .
Bakhrakh's discussion of the constitutive model links the view of the
history of halakhah with the problem of the meaning and effect of the mizvot.
According to Bakhrakh, the claim that the Torah was given open-ended and
left to the sages' future decisions is incompatible with a strict
ontological conception of the commandments. According to such a conception,
halakhic categories such as pure and impure do not reflect mere legal
concepts. They are, rather, causally connected to the very nature of
reality. The proper analogy to impurity is poison. This view of halakhic
categories defines a strict notion of truth in the legal process. Something
is truly impure if it affects reality in a negative manner and vice versa.
Therefore, such a view of the causal impact of halahkhic categories makes
those categories completely independent from human decisions. Just as a
physician's pronouncement that a poison is curative is devoid of sense so
the sages' ruling that something truly impure is pure has no meaning.[15]
The constitutive approach is thus completely foreign to a strict ontological
conception of mitzot. The problem of the place of human creativity in
halakhah, as reflected in opposing accounts of its history, is thus
connected to a deeper issue of the ontological status of halakhic legal
categories.
Bakhrakh, who adheres to the ontological view, attempts to reconcile it with
the constitutive approach. According to his reformulation, reconciling the
two, the ontological impact of halakhic categories ought to be mediated
through God's will. There is nothing in the nature of impurity as such that
affects reality. Rather, it is because impurity is despicable in God's eyes
that it has a negative impact on reality. Therefore, if God grants the court
the privilege to distinguish pure from impure, that will in turn bear a
causal impact on reality. According to this reformulation of the causal
connection, there is nothing '"truly" impure as such, but only through God's
will. Bakhrakh's discussion of the constitutive view introduces the tension
between the ontological qualities he attributes to halakhic categories, and
the open-endendness of revelation, which depends on future human decisions.
Although he formulates an ontology that seems to solve the problem, Bakhrakh
is dissatisfied with the solution. In the continuation of the responsum he
returns to explore the Ritba's formulation and rejects it:
Concerning what is written in the first chapter of Erubin, 'These and these
are the words of the living God' , and in the fourth chapter of Hagigah "all
of them [conflicting opinions] were spoken by one God": The Ritba wrote that
God gave Moses forty nine arguments for [a ruling of] impure, and forty nine
for [a ruling of] pure, and that the final decision should be left to the
sages of Israel....How very strange it is to say that God did not express
His true opinion and will concerning the halakhah and the interpretation of
scripture. In fact, the opposite is more reasonable - that in apprehension
of controversy God should have clarified the norms and made His will known.
....Therefore on what basis can one fabricate the contention that God
pronounced a mistaken opinion along with the true opinion? Perhaps He said
only the truth but it was forgotten... .
In a pattern very similar to his criticism of Maimonides' accumulative
history of halakhah, Bakhrakh criticizes Ritba's constitutive approach. The
Ritba's attempt to ground all of the oral Law, including contradictions, in
open-ended revelation undermines the element of truth in revelation. It is
interesting to note that R. Yair Bachrach faces a tension inherent to his
kabbalistic backround. On the one hand, the theology of Kabbalah that
pictures God as a multi-dimensional organic being, allows for a conception
of an open-ended revelation filled with many contrary opinions mirroring
God's own inner multiplicity; and indeed many formulations of an open-ended
pluralistic revelation are cast in kabbalistic terminology.[16] On the other
hand, the ontological view is at the center of kabbalistic conceptions of
halakhah. Bachrach opts for the strict ontological view, and claiming that
open-ended conceptions of revelation undermine the ontological causual
effect of halakhah. Faced with this dilemma, Bakhrakh returns to the
retrieval model: truth was given in complete and definitive form at Sinai
but it was forgotten. By juxtaposing all three models Bakhrakh's fascinating
discussion reveals the internal tensions inherent in all three of them. Do
we have to safeguard tradition at the expense of the exclusion of debates
from revelation, debates which make up most of the Mishnah? Must we include
controversies in the open-ended revelation at the expense of the very idea
of halakhic truth and the ontological effect of legal categories? The
alternative to the accumulative and constitutive models - the retrieval
model - is what Bakhrakh chooses. Yet the undeniable impression remains that
the pervasive presence of forgetfulness in the retrieval model troubles
Bakhrakh all through the responsum. At times he seems to be less like a
proponent of any one position, than a juggler who would like to keep all
three of them in the air at the same time.
We have examined three different histories of halakhah and especially the
emergence of controversy as they are described from within. Each structures
the basic conceptions of the halakhah in its own way through the story it
tells about its history.[17] The role of legal reasoning, the emergence and
account of controversy, and notions of authority - elements that are
fundamental to any legal system - are shaped differently in each of the
three versions. In addition essential to each model is a different
understanding of truth in halakhah. Ibn Doubt's retrieval model assumes a
corespondense theory of halkhaic truth, Maimonides' accumulative model
implies a coherence notion of halakhic truth, and the constitutive model as
presented by the Ritba, undermines the very idea of an a-priori critirion
for examining such an issue. In R. Yair Bakhrakh discussion a fourth
conception of halakhic truth was introduced, that of ontological causal
affect on the state of the world. As told from within these histories
attempt not to uncover the past for its own sake, but to organize the
complex legal reality into a coherent structure. In this respect, they
function like mythologies which account for the most fundamental aspects of
human reality - death, birth, labor, evil and so on. The complex matrix of
life cannot be reduced to one story, and for that reason the body of
halakhic literature present us with multiple ones.
Unless otherwise noted, all
material is
Copyright © 1997 The President and Fellows of Harvard College.
All rights reserved.
This page was last updated January 3, 1997.
We welcome your comments.
Site Administrator: mjkelly@law.harvard.edu
FOOTNOTES
1. On the background of Karaite polemics to Ibn Daud's view see G. Cohen,
Introduction to Sefer ha-Kabbalah (Philadelphia, 1967) and also see B. M.
Levin, Igeret Rab Shrira Gaon (Jerusalem, 1972) pp. 3-7.
2. See ibid. p. 6-8, and also the material from the Geonim quoted in notes
3,6.
3. See ibid. p 18-19.
4.
Sefer ha-Kabbalh, pp. 3-4
5.
Ibn Daud mentions another source for the sages' authority which is universal
agreement, but this principle is restricted only to enactments not to the
Mishnah as such. For an extensive discussion of the complicated problem of
intergenerational authority in halakhah see I. Ta-Shma, "Halakhah ke-Batrai"
Shnaton ha-Mishpat ha-Ivri vol. 6-7 1979-1980, and I. Yubal, "Rishonim
ve-Achronim" Zion 57 (1992) pp. 369-394.
For a modern debate on the source of the authority of the Talmud see: R.
Elchanan Vasserman's opinion in Kovetz Shiurim, Divrei Sofrim pp.
96-97. Hazon Ish, Kovetz Inyanim pp. 194-7. For an extensive
discussion on the problem see S. Z. Havlin, "al ha-Chatimah ha- Sifrutit" in
Mechkarim ba-Sifrut ha-Talmudit, (Jerusalem, 1983) pp. 148-192.
6. Maimonides innovative approach in relation to the Geonim was pointed out
by C. Tchernowitz, Toldot ha-Halkhah (New York 1948) vol. I p. 88,
see also the extensive discussion on the problem in I. Twersky,
Introduction to the Gode of Maimonides (Mishneh Torah) (New Haven, 1980)
pp. 62-74.
7. Maimonides repeats this point in his intorduction to the commentary of
the Mishnah and his introduction to the Mishneh Torah. In the introduction
to the Mishneh Torah he describes this category in the followitg terms: "The
norms that were innovated in each generation - laws that were not received
by tradition - but [were derived] through a midah of the thirteen midot".
8. On the relationship between Ibn Daud's account of controversy and
Maimonides account see D. Hartman Maimonides Torah and Philosphic Quest,
(Philadelphia, 1976) pp. 112-116.
9. On the nature of interpretation as derivation and rules of interpretation
as rules of inference and the consequence of this conception of
interpretation and controversy see M. Halbertal, "Sefer ha-Mitzvot la-Rambam"
Tarbiz 59 (1990) pp. 457-480.
10. On notions of halakhic truth, see A. Sagi, important discussion in "Halakhic
Praxis and the Word of God: A Study of Two Models" in J. Jewish Thought
and Philosophy vol. 1 (1992) pp. 305-329.
11. See also Ramban, Sefer ha-Mitzvot Hasagah le-Soresh Rishon.
12.
Hidushei ha-Ritba, Erubin 13b.
The tosafist R. Samson of Sens might have been the source of Ritba's
conception of an the open-ended revelation. According to R. Samson this
conception provides the reason why the Mishnah records minority opinions:
"..Although the individual's claim were at first not accepted and many
disagreed with him, at other times many may come to agree with his reasons
and Halakhah will follow them. The whole Torah was given to Moses with
aspects of purity and aspects of impurity, and when they asked him how long
they should continue to debate he said to them follow the many but both are
the words of the livin God". Tosfot Shantz Eduyot 1,5. For another medieval
author who prexcribes to the same model see R. Jacob of Marvege, Shelot
u-Tshubot min ha-Sahmaim R. Margaliot ed. (Jerusalem: Mosad ha-Rav Kook)
3. The same idea is expressed in kabbalistic terminology for example Meir
ibn Gabai, Avodat ha-Kodesh (Cracow, 1576) Helek ha-Tachlit ch. 23.
Shlomo Lurya, Yam shel Shlomoh (Bnei Brak, 1959-60) introduction to
tractate Hulin and in R. Shmuel be-Rabi Izhac, Midrash Shmuel (Cracow,
1593) Avot 5, 19. R. Shlomoh Ephraim of Lunzeiz, a sixteenth century figure
made a bold analogy between the revelation at Sinai and the structure of the
Mishnah. Like the Mishnah the revelation was handed to Moses with counter
arguments with the intention that future generation can rely upon those
overrule the existing law according to the need of the hour, the Torah
itself was revealed as a flexible canon see Amudei Shesh (Prague,
1607) ch. 20.
13. It is important to note that the different accounts of the history of
halakhah and controversy which we analyze stem from tensions within the
Talmudic material itself - as for example the difference between contoversy
as a result of decline or controversy as inherent to revelation. This point
will need further explication.
14. Unlike Ritba and Ran, the author of Sefer ha-Chinuch an adherent of
Nachmanides, uses Nachmanides terminology in a noconstitutive fashion.
According to Sefer ha-Chinukh, "the intention of the Torah was handed to the
sages of isrel". But such a privilege is merely procedural and not
consitutive. The sages have to be obeyed even if they are mistaken since a
legal system cannot allow anarchy: 'it is better to endure one mistke, and
everybody will be obedient to their opinion which is usualy correct, and not
that each will follow his poinion which will result in the destruction of
the law and the division of he heart of the people and the complete loss of
the nation. Because of such considerations the intention of the Torah was
handed to the sages of Israel' Mitzvah 508.
15. The same ontological outlook of halakhah is manifested in Yehudah
ha-Levi's Kuzari. Ha-Levi who uses the medical metaphor as well attemtps to
minimize the human innovation in halkhah and relies heavely on the concept
of recieved tradition, since he is an adherent of the ontological outlook.
See Kuzari 3; 39.
16. See above note 12, for such formulations which many of them are cast in
kabbalistic language.
17. For a very helpfull phenomenological analysis of different notions of
the Oral Law, and their relations to problems of authority and innovation,
see Y. Silman, "Torah Elohit sh"Lo ba-Sahmaim - Beirur Tipologi" Sefer
Bar Ilan, Jerusalem 1988, pp. 261-286.