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.
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