The Spirit(s) of Halacha

There are parallel legitimate halachic Judaisms which dwell in parallel universes. The contours of mainstream Sefardic halachic practice is different from mainstream Ashkenazic halachic practice. And the contours of each differ from e.g. the halachic practice of the Rambam.

This is fine. After all, תני יצאת בת קול ואמרה אלו ואלו דברי אלהים חיים אבל הלכה כדברי בית הלל (Berachot 9a). Each is the end-product of a legitimate halachic paradigm. Each such halachic Judaism is formed by its laws, decisors, and practitioners.

Part of this legitimacy stems from Emunas Chachamim. (See Pirkei Avot 6:5.) This has been defined in one of two ways. (A) One is trust that everything that the Chachamim say is absolutely correct, such that we cannot question it. (B) The other is trust in the Chachamim to be Chachamim, and to try to rise above personal agendas.

I take the second definition of Emunas Chachamim, that is:

Yes, indeed, emunas chachomim is a very fundamental principle in our faith: we believe Hakadosh Baruch Hu will give divine assistance to an honest and deserving talmid chochom that he should be above his personal negios in issuing a psak; he will not have an agenda. But it doesn't mean that we should believe in nonsense.

It would be a great insult to a member of Chazal to say that he would invent halacha or tradition in order to achieve a particular desired end. (See Yerushalmi Peah 1:15; and Berachot 19a.)

Yet -- while perhaps this takes me outside the pale -- I do think that there is foreign influence on pesak, from the surrounding culture. For example, the Rambam was greatly influenced by Greek philosophy, and lived in Arab countries. This does not mean that he deliberately modified halacha to conform with Aristotle or with Sharia. But it makes sense that his world-view could color his interpretation of ambiguous statements in the gemara, or would make one line of argument more compelling than another.

Certain methodologies of interpretation gained favor in specific parts of the world, or in specific times, but not others. For example, as Professor Haym Soloveitchik said about how the approach of Tosafot differed from that of the Geonim:

They worked on different assumptions. They were aware of contradictions between sugyas and occasionally attempted to resolve them. However, in instances of conflict, the Geonim generally privileged, what was called ‘the sugya de-shemattsa.’ There was a major, controlling sugya where the issue is discussed in the fullest manner, and the halakhah is in accord with the upshot of this sugya. Other minor sugyas, if they contradicted the major one, were not to be heeded.

I would not be at all surprised if the rise, or spread, of different methodologies correlated someone to the zeitgeist, the spirit of the times.

This sort of development of a halachic system is natural and organic. It is not a deliberate discarding of the Torah worldview and deliberate imposition of an external worldview upon it. And it is a flavor of legitimate halachic Judaism.

While I have emunas Chachamim, I must confess that I don't have emunah in the Chachamim of YCT, Open Orthodoxy, Morethodoxy, and so on. Gideon Slifkin wrote recently about Partnership Minyanim:

It's religious politics masquerading as lomdishe debates in psak. Where there's a Rabbinic will there's a Halachic way is the most relevant thing ever said on this topic, and it cuts both ways.

And Ysoscher Katz (of YCT) responded:

Nice summary, Gideon. (As usual) I agree with everything you said up to the last line. (I'm just slightly less cynical-I'm a glass-half-full type) I would paraphrase your conclusion as follows: it's ideology masquerading as halakha. And that is the essence of my debate with Rav Schachter. I believe that ideology is also halakha and as such needs to follow the same standards we have for when we are conducting halakhic debates.

If we genuinely want the debate to move forward, two things need to happen: A) Each side needs to clearly articulate the ideological beliefs that inform their opinion. B) Halakhic debates are textual, they are conducted by evaluating and debating sources. The same needs to happen here. Each side should be required to identify the texts and articulate the sources that form the basis for their ideology.

I believe that Rav Schachter is extracting his ideology, methodology, and his sense of the way that halachic practice should go, from one such legitimate halachic Judaism.

Meanwhile, some others acknowledge, or assert, that Judaism as it has been practiced until now has a patriarchal system which has been unfair to women, and that it needs to be reformed. And if a bunch of halachic sources can be interpreted to achieve that end, and to overturn existing halachic practice, then so be it. This is a good thing. After all, where there is a Rabbinic Will, there is a Halachic Way. Partnership minyanim seems to be one such example, of combining a series of pesakim to achieve a desired end. I don't see that is legitimate, or intellectually honest.

These pesakim don't reflect the ruach halacha, or even a ruach halacha. And in such instances, it would pay to consult those who have gained a sense of the ruach halacha, which was influenced by reading through Shas and poskim, hashkafic works, and so on, rather than American pop-culture.

Further, it is specifically in the face of such deliberate reworking of halacha to meet the external agenda that one should oppose the specific halachic conclusions.

Could Devarim be subjective? Or is this theologically treif?

In a previous post, I explained how apparent differences between Devarim and the rest of Torah might be due to the agenda of author.

For example, in Shemot, in a narrative section about Yitro, it makes sense to mention Yitro's input into setting up the court system. Whereas, in Devarim, where the authorial agenda is placed elsewhere (e.g. movement of power from Moshe to others), there is no purpose in mentioning Yitro, and so he is not mentioned. Yitro is simply irrelevant, and his omission is not a contradiction. Since this is a retelling, rather than a first telling, and the audience already is expected to be familiar with the Torah, there is no fear that Yitro's role will be lost to posterity, and so the author of Devarim can focus on what he wants. Devarim is thus an agenda-driven interpretation of the previous text, rather than a dry Biblical history based on otherwise unknown sources.

The reaction, by some, was that this would not be palatable to an uber-frum audience. [This is somewhat beyond the point, because my main thrust was that from an academic perspective, this theory is more nuanced, and the competing theory is simplistic and non-nuanced. Further, who says we care about this uber-frum audience.] But, I am not so convinced that this would not be so palatable to a frum audience.

Let us look at some of the objections people raised:

Charedi TMS [ed: Torah miSinai] means that everything was given to Moses. It would be impossible to say that Moses had some fancy intent to explain why he made certain choices.

I can simply point to a pasuk from last week's parsha, in a perek from which many apparent differences came, Devarim 10:12-13:

יב  וְעַתָּה, יִשְׂרָאֵל--מָה ה אֱלֹהֶיךָ, שֹׁאֵל מֵעִמָּךְ:  כִּי אִם-לְיִרְאָה אֶת-ה אֱלֹהֶיךָ לָלֶכֶת בְּכָל-דְּרָכָיו, וּלְאַהֲבָה אֹתוֹ, וְלַעֲבֹד אֶת-ה אֱלֹהֶיךָ, בְּכָל-לְבָבְךָ וּבְכָל-נַפְשֶׁךָ.	12 And now, Israel, what doth the LORD thy God require of thee, but to fear the LORD thy God, to walk in all His ways, and to love Him, and to serve the LORD thy God with all thy heart and with all thy soul;
יג  לִשְׁמֹר אֶת-מִצְו‍ֹת ה, וְאֶת-חֻקֹּתָיו, אֲשֶׁר אָנֹכִי מְצַוְּךָ, הַיּוֹם--לְטוֹב, לָךְ.	13 to keep for thy good the commandments of the LORD, and His statutes, which I command thee this day?

Yeah, that's all Hashem wants. No biggie!

Turn to Berachot 33b:

R. Hanina further said: Everything is in the hand of heaven except the fear of heaven,²⁵  as it says, And now, Israel, what doth the Lord thy God require of thee but to fear.²⁶  Is the fear of heaven such a little thing? Has not R. Hanina said in the name R. Simeon b. Yohai: The Holy One, blessed be He, has in His treasury nought except a store of the fear of heaven, as it says, The fear of the Lord is His treasure?²⁷  — Yes; for Moses it was a small thing; as R. Hanina said: To illustrate by a parable, if a man is asked for a big article and he has it, it seems like a small article to him; if he is asked for a small article and he does not possess it, it seems like a big article to him.

In other words, Moshe said this from his own, subjective, perspective. This idea should not be earth-shattering. It is a pasuk, that this is a report of Moshe's speech. Devarim 1:5:

ה  בְּעֵבֶר הַיַּרְדֵּן, בְּאֶרֶץ מוֹאָב, הוֹאִיל מֹשֶׁה, בֵּאֵר אֶת-הַתּוֹרָה הַזֹּאת לֵאמֹר.

5 beyond the Jordan, in the land of Moab, took Moses upon him to expound this law, saying:

Or, for example, in Devarim 1, we see that a blessing Moshe gave the Israelites was his own blessing, rather than a blessing from Hashem.

May the Lord God of your forefathers add to you a thousandfold as many as you are, and may He bless you, as He spoke concerning you!		יא. ה אֱלֹהֵי אֲבוֹתֵכֶם יֹסֵף עֲלֵיכֶם כָּכֶם אֶלֶף פְּעָמִים וִיבָרֵךְ אֶתְכֶם כַּאֲשֶׁר דִּבֶּר לָכֶם:
May… add to you a thousandfold as many as you are: What is [the purpose of] repeating further [in the verse]: “And He will bless you, as He has spoken concerning you?” They [the Israelites] said to him, “Moses, you are limiting our blessings [i.e., our numbers being multiplied only a thousandfold]. The Holy One, blessed is He, already promised to Abraham (Gen. 13:16), 'so that if a man will be able to count [the dust of the earth, so will your seed be counted]!’” [Moses] replied to them: “This [blessing of a thousandfold] is mine, but He will bless you as He spoke concerning you!” (Sifrei)		יוסף עליכם ככם אלף פעמים: מהו שוב ויברך אתכם כאשר דבר לכם, אלא אמרו לו משה אתה נותן קצבה לברכתינו, כבר הבטיח הקב"ה את אברהם (בראשית יג, טז) אשר אם יוכל איש למנות וגו', אמר להם זו משלי היא, אבל הוא יברך אתכם כאשר דבר לכם:

Were this all Moshe merely speaking Divine speech, this distinction would make no sense!

Another example of Moshe having fancy intent when making certain choices in presentation is the distinction Chazal make between Devarim and the rest of the Torah in interpreting juxtapositions:

The Gemara (in several place, e.g. BT Yevamot 4a) notes that although there is a dispute among the Tannaim as to whether or not it is appropriate to make contextually-driven inferences (known as "S'mukhin") in the Torah, this dispute only obtains in reference to the first four books of the Torah. In other words, whether we can infer details of one law from a "neighboring" law simply by virtue of their juxtaposition is subject to debate among the scholars of the Mishnah. This is, however, not true with regards to Sefer D'varim - there is a consensus that juxtaposition is meaningful in D'varim and that such inferences are valid. This principle is known as "Darshinan S'mukhin b'Mishneh Torah" - we allow for juxtapositionally-driven inferences in "Mishneh Torah" (D'varim).

(Of course, that does not mean that one cannot darshen in Devarim, which then reflects Divine word choice. Also, who says that Moshe's authorial intent did not reflect Hashem's will?)

Another objection, from a chareidi perspective (or from non-chareidim attributing this to chareidim) is that any imprecision is theologically unpalatable, since it would be a falsehood. For instance, in response to the idea that Moshe is giving a quick summary of the masaot after Har Sinai, to show that Aharon died elsewhere, but that the reader is expected to know that of course Aharon died at Hor Hahar, the following comment:

That would be fine with a human writer living in the 7th century BC, yet i find this hard to reconcile with the concept of torah min hashamayim. What sort of a God is this, who doesn't care about creating accurate historical recounts of the past? isn't he the one who is supposed to have said "midvar sheker tirchak"?

Or, in response to the general idea of changed wording or details, e.g. the omission of Yisro's role:

1. Given that our tradition views the Torah as very precise document i.e. every single word and maybe even every letter is not supposed to be redundant, so whether one says different traditions or applies your suggestion, the question remains how does our traditional view allow for conflicting details of narratives. Was Moishe being disingenuous? Did Moishe never hear of “ha-omer dover b’shem omro”? or did he simply forget details? I really don’t see how this works.

From a chareidi perspective where every word or letter is meaningful to the extent that this answer would be a problem, the question does not even start. That same chareidi perspective has midrashic explanations, based on these slight divergences. And one uses these meaningful extra letters as a basis for a parallel Oral tradition which answers up any contradictions.

From a less extreme perspective, for the frum perspective I was never saying that these accounts were sheker, or that Moshe was being disingenuous. I was simply saying that he focused on what he focused on, and spoke in the language of man. Dibra Torah kilshon benei adam.

For an example from Midrash, let us consider the manna. As I discussed in a previous post, the Torah says that it became wormy and rotten:

20. But [some] men did not obey Moses and left over [some] of it until morning, and it bred worms and became putrid, and Moses became angry with them.

כ. וְלֹא שָׁמְעוּ אֶל מֹשֶׁה וַיּוֹתִרוּ אֲנָשִׁים מִמֶּנּוּ עַד בֹּקֶר וַיָּרֻם תּוֹלָעִים וַיִּבְאַשׁ וַיִּקְצֹף עֲלֵהֶם מֹשֶׁה:

Rashi writes regarding this as follows:

and became putrid: This verse is transposed, because first it became putrid and later it bred worms, as it says: “and it did not become putrid, and not a worm was in it” (verse 24), and such is the nature of all things that become wormy. — [from Mechilta]

ויבאש: הרי זה מקרא הפוך, שתחלה הבאיש ולבסוף התליע, כענין שנאמר (פסוק כד) ולא הבאיש ורמה לא היתה בו, וכן דרך כל המתליעים:

And that Mechilta:

וירם תולעים ויבאש - הרי מקרא זה מסורס. וכי מרחיש ואח"כ מבאיש, אלא מבאיש ואח"כ מרחיש, כענין שנאמר: ולא הבאיש וגו'. 

The driving force behind this midrash is a belief in spontaneous generation. Obviously, first something must become putrid and only afterwards become wormy.

One might well ask regarding this midrash:

What sort of a God is this, who doesn't care about creating accurate historical recounts of the past? isn't he the one who is supposed to have said "midvar sheker tirchak"?

The answer is that the transposed order is not "sheker" and it is not an "[in]accurate historical [ac]count". Rather, it is a way of speaking, a dibra Torah kilshon benei adam. See how many times Rashi writes that something is mikra mesuras or is mikra katzer.

The importance of calculating tekufot

According to Rabbi Yochanan in Shabbat 75a, it is important,
based on a pasuk in VaEtchanan (4:5),  וּשְׁמַרְתֶּם, וַעֲשִׂיתֶם--כִּי הִוא חָכְמַתְכֶם וּבִינַתְכֶם, לְעֵינֵי הָעַמִּים:

R. Simeon b. Pazzi said in the name of R. Joshua b. Levi on the authority of Bar Kappara: He who knows how to calculate the cycles and planetary courses, but does not, of him Scripture saith, but they regard not the work of the Lord, neither have they considered the operation of his hands.⁷  R. Samuel b. Nahmani said in R. Johanan's name: How do we know that it is one's duty to calculate the cycles and planetary courses? Because it is written, for this is your wisdom and understanding in the sight of the peoples:⁸  what wisdom and understanding is in the sight of the peoples?⁹  Say, that it is the science of cycles and planets.

Rashi explains how this is understanding in the sight of the peoples:

לעיני העמים - שחכמה הניכרת היא שמראה להם סימן לדבריו בהילוך החמה והמזלו' שמעידין כדבריו שאומר שנה זו גשומה והיא כן שנה זו שחונה והיא כן שכל העיתים לפי מהלך החמה במזלותיה ומולדותיה במזל תלוי הכל לפי השעה המתחלת לשמש בכניסת החמה למזל:

If so, why don't rabbis regularly study astronomy anymore? See the Shevus Yaakov for one explanation.

But maybe it is that this is now recognized not to be the way to predict weather patterns, and astrology has been dismissed as a science, such that it is not חָכְמַתְכֶם וּבִינַתְכֶם, לְעֵינֵי הָעַמִּים. Peshat in the pasuk anyway is to follow the mitzvos, because that is the chochmah and binah. The derasha is homiletic. And the way to follow the homiletic lesson is not specifically the tekufot. It is rather like the Gra who studied mathematics, or the Chazon Ish who studied medicine.

In other words, there is a value in Torah Umadda, to be a person knowledgeable in the sciences, and thus an advanced individual in the eyes of the umos haOlam.

Have you seen my Alps?

There is a famous story, I don't know if true, told about Rav Shamshon Refael Hirsch:

Rabbi Shmuel Alter, a prominent rabbinic figure of the past generation, explains that by stressing "these you will eat", the Torah is hinting to us that it is a mitzvah to eat. The Talmud (Yerushalmi Tractate Kiddushin) explains that in the future, Hashem will hold us responsible if we do not enjoy the beautiful things He created in this world. The story is told that at the end of his life, Rabbi Samson Raphael Hirsch, the great 19^th century leader of German Jewry, traveled to Switzerland by foot. When his students tried to dissuade him from risking his health to travel, Rabbi Hirsch explained to them, "When I come before Hashem, I will have to answer for many things. But what will I tell Him when He asks me, 'Have you seen My Alps?'" The Torah is telling us that Hashem created kosher food for us to enjoy, and to enable us to serve Him in greater joy and gratitude for the blessing He has given us.

(The Yerushalmi is this one:

The interpretation [of "And Hashem God commanded the man, saying, ‘Of every tree in the garden you may eat freely.'"] is that it is a commandment, a requirement, to eat freely and enjoy from everything in the garden, as the Talmud states, "In the future, a person is required to give an accounting for every opportunity that they had to enjoy this world and refrained from it." (Talmud Yerushalmi, Kiddushin 4:12)

)

As you can see, there is a Jewish world-view associated with this story, in which there is a religious value in engaging the beauty the world has to offer. One can disagree with this worldview, and argue that we are meant to spend all waking hours either learning Torah in the beis medrash, and that the wonders of Hashem's creation are mere backdrop or, worse, distractions. But I do think that it is a worldview with much merit and even sources and personalities to back it up.

I saw the following in a rather chareidi parsha sheet for Pinchas the other day. Click to zoom in.

It is possible the story in the parshasheet was fabricated to attack the position, or it is possible that the rabbi in the story was simply unaware that this fellow was quoting R' Shamshon Refael Hirsch, who certainly knew the gemara in Bavli Kiddishin, and was likely riffing off of it. Do people still go to Swiss spas nowadays for their health?