Rabbeinu Avraham vs. the Rambam?
In Rabbi Meiselman's attempt to discredit the Discourse, he finds a number of instances where he believes that the Discourse differs from the position of the Rambam. Since Rabbeinu Avraham strongly defended the his father’s position in many cases, Rabbi Meiselman takes this as evidence that Rabbeinu Avraham did not author those parts of the Discourse. While there is little reason to think that a lack of correspondence with the Rambam would create any doubt as to the authorship of the Discourse, in my humble opinion, there is in fact no divergence to speak of. Let’s examine the evidence.
Rabbi Meiselman's first example is based a statement in the Discourse about the argument between the Jewish and Gentile sage regarding the path of the Sun at night (emphasis and translation mine):
Consider the wisdom of this secret, that Rabbi [Yehudah HaNasi] did not rule [lo pasak] in accordance with the opinion of the Gentile sages rather he decided according to them using a judgement based on the proof that we discussed. That is why [the Talmud] says “their words appear correct” which is a word that indicates decision [as opposed to “rule”].Rabbi Meiselman judges this to be a deviation from the text quoted by the Rambam in the Guide 2:8 which we referenced in a earlier post (emphasis mine):
The theory of the music of the spheres is connected with the theory of the motion of the stars in a fixed sphere, and our Sages have, in this astronomical question, abandoned their own theory in favour of the theory of others. Thus, it is distinctly stated, "The wise men of other nations have defeated the wise men of Israel."Here the Rambam seems to have a different text of the Talmud from Rabbeinu Avraham. Rabbeinu Avraham emphasizes that Rabbi Yehuda HaNasi specifically used the language "their words appear correct" to emphasize the uncertainty in their arguments. In contrast, the language quoted by the Rambam is very strong. Thus, in Rabbi Meiselmans opinion, this conflict indicates that Rabbeinu Avraham was not the author of this section of the Discourse.
In my humble opinion, this divergence proves nothing. To begin with, the Rambam's quotation provides no evidence that Rabbeinu Avraham's text does not appear. It is entirely possible that the Rambam's Talmud contained both texts and he chose to illustrate his point with the stronger statement of contradiction to the opinion of Chazal in order to better support his own disagreement with Chazal's theory of the music of the spheres.
In fact, Rabbeinu Avraham does quote the Rambam's text a few lines later when he says:
If it had been clear to him [Rabbi Yehudah Hanasi] definitively with a clear proof that the sphere rotates while the stars are fixed within, he would have ruled according to them [i.e. the Gentile sages], as other of our Sages said elsewhere: "The wise men of other nations have defeated the wise men of Israel."Thus, Rabbeinu Avraham did have the same text as the Rambam. It is unclear where Rabbeinu Avraham locates this statement in the Talmud, and it is likewise unclear where the Rambam locates his statement but there is no evidence of conflict between the two. In fact, the parallel citation of the same phrasing is evidence of correspondence, since our text of the Talmud does not contain this phrase at all.
Morever, Rabbeinu Avraham refers to this same Gemara in his book Milchamos Hashem, where he defends the Rambam against some of his critics:
As you can seen from the graphic above, Rabbeinu Avraham also refers to the same text with the same phrase that he quotes in the Discourse: “their words appear correct”! Unless Milchamos Hashem is also a forgery, the purported inconsistency proves nothing.
In fact, this example demonstrates why the entire enterprise of picking out “unexpected” phrases from the Discourse is doomed to failure. The notion that we can look at a text and discern the probability that author could have written that text is fanciful. Every text is going to have some unusual or unexpected content or we wouldn't bother to read it to begin with.
In this case, Rabbi Meiselman honestly judged the text so out of character for Rabbeinu Avraham, that it must be fraudulent, and despite his great erudition, his judgement proved incorrect. The reason is straightforward: the entire methodology is faulty to begin with.
Arguing with Authority
Rabbi Meiselman's second example of an inconsistency involves Chulin 124a. Briefly, a ruling of R. Yochanan is related to R. Nachman. R. Nachman rejects the ruling and says that "even if R. Yochanan himself had told it me by his own mouth I should not have accepted it!" Later, the discussion is reported to R. Ammi who objects to R. Nachman's language saying "And even if R. Nahman is the son-in-law of the Exilarch shall he make light of the teaching of R. Yochanan?"
However, when the details of the story are properly explained to R. Ammi, he realizes that the ruling given to R. Nachman had been garbled. With respect to this mistaken version, R. Ammi exclaims: "even if Yehoshua bin Nun had told it me by his own mouth I should not have accepted it!" 
Rabbeinu Avraham uses this story to support the idea that one should only accept an idea based on its veracity and not based on authority. R. Ammi would not accept a ruling, even from a prophet, unless it could be explained using the the methods of argument that were given over for deriving halachos. Similarly, if we see a scientific assertion in the Talmud that does not hold up to scrutiny, we must reject it.
Rabbi Meiselman asks a number of questions here that are, in my humble opinion, quite puzzling. He writes as follows (TCS pg 112):
The Gemara indicates further than an Amora could not even disagree with a Tanna. This, too, is affirmed by the Rambam in all his works. How, then could an Amora possibly have claimed the right to disagree with Yehoshua bin Nun? Where do we ever find such an outright dismissal of the authority of a scholar from a previous period of history?
What is more, the author of this piece seems to imply that sevorah -- logical reasoning -- trumps even a mesorah, yet the Rambam writes in his Introduction to Peirush HaMishnayos that a Tanna or Amora cound not disagree even with a contemporary if the latter was backed by a mesorah. It is hard to imagine, therefore, that any mainstream halachic authority could have penned these words.The line of questioning is difficult to understand. To begin with, it is R. Ammi, not the Discourse, that tells us that he would disagree with Yehoshua Bin Nun. Rabbi Meiselman's expression of wonder seems better directed at the Gemara than at the Discourse.
Moreover, Rav Moshe Sofer (Chasam Sofer) explictly writes what Rabbi Meiselman claims that no mainstream halachic authority could write. He asks the following question: why did R. Ammi use Yehoshua and not Moshe Rabbeinu as his example? His answer is that R. Ammi could disagree with Yehoshua whether or not Yehoshua argued from reason or from tradition (mesorah). In contrast, we are permitted to disagree with Moshe Rabbeinu only when he argues from reason; doubting Moshe Rabbeinu's tradition would be tantamount to doubting Moshe Rabbeinu's revelation from Sinai and thus rejecting the system of halacha postulated at Sinai. Thus, both of Rabbi Meiselman's "red lines" were crossed by one of our greatest halachic authorities!
We've shown that the Discourse, as interpreted by Rabbi Meiselman, is not "out of bounds" for a genuine halachic authority. However, we still need to deal with Rabbi Meiselman's secondary argument: that the Disource is inconsistent with the position of the Rambam. While, in my humble opinion, disagreement with the Rambam would not discredit the Discourse, there is no discernable disagreement to begin with.
In reality, the Rambam does not affirm in all his works that a Amora cannot disagree with a Tanna because the later or lesser figure cannot argue with greater or earlier figures. In fact, the Rambam rules explicitly that any court can overrule a previous court's ruling based on reason, even if the later court is lesser in wisdom than the prior court. One is obligated to listen to the court that functions in his or her day, even when it overrules an admittedly greater authority. This is entirely consistent with the approach of the Discourse. 
Rabbi Meiselman also claims the following inconsistency:
- The Discourse implies that R. Ammi could disagree with Yehoshua on a matter of reason.
- However, the Rambam (Introduction to the Mishna) uses R. Ammi's statement as one of two pieces of evidence that prophecy plays no role in deciding halacha.
Rabbi Meiselman argues that these two interpretations are contradictory and thus the Discourse is in disagreement with Rambam.
In my humble opinion, there is no contradiction at all. The Rambam's interpretation simply implies that R. Ammi would have disagreed with Yehoshua whether or not he argued based on prophecy or based on his authority and greatness. To see that this must be the case, suppose that the Rambam meant that R. Ammi would not have accepted Yehoshua's prophecy, but would have accepted his authority, as Rabbi Meiselman suggests.
In that case, the R. Ammi's statement becomes nonsensical. R. Ammi's point is that the halacha in question is so obviously mistaken that he would not accept even Yehoshua's authority in support. But if he was merely saying that he would not accept the authority of any prophecy, then that would apply even if he had complete 50/50 doubt as to the status of the halacha. In fact, he would not accept a prophecy even in support of a halacha that he agreed with. According the the Rambam, no weight at all is given to prophecy in deciding halacha, even in cases of doubt. The fact that he would reject prophecy would have no polemic value, since we never accept prophecy in deciding halacha.
Rather, the Rambam's reasoning must be as follows: R Ammi was able to use Yehoshua as an example of an unaccepted authority, even though is he is also a prophet, only because we don't accept prophecy in the halachic process. Were we to accept prophecy to decide halacha, then R. Ammi would likely have used the example of another great figure who was not a prophet, to avoid any ambiguity and make his polemic more convincing. However, the meaning of R. Ammi's polemic is that he was so sure of the halacha that he would not accept the authority of someone greater to overturn his judgement. This interpretation is further supported by the fact that R. Nachman's original parallel exclamation, which R. Ammi is strengthening, related to R. Yochanan who was not a prophet.
Finally, Rabbi Meiselman writes that "the author of this piece seems to imply that sevorah -- logical reasoning -- trumps even a mesorah". We have shown that the Chasam Sofer believes that compelling reasoning can be used to infer a mistake in a tradition, so such an idea would not be by any means controversial. Nevertheless, such an idea would seem to diverge from the Rambam's position in his introduction to his Commentary on Mishnah, where he indicates that arguments in the Talmud are not based on arguments about whose tradition is more correct.
However, there is nothing in the Discourse to imply disagreement with the Rambam on this point. Rabbeinu Avraham later quotes the very principle that "If this is a halachah, we shall accept it; but if it is only an inference, an objection can be pointed out. (אם הלכה נקבל ואם לדין יש תשובה)". Furthermore, the Discourse quite clearly contrasts science and Torah and indicates that although we do bow to the authority of Chazal in Torah matters, we are not required to defend them in matters of science.  In the case of R Ammi, there is no claim of a tradition, nor is the original purported author of the statement available for questioning. Thus, there is nothing in the Discourse to contradict the Rambam's principle.
Still, one might ask: If Rabbeinu Avraham agrees that one cannot refute a tradition with reason, then how can we be sure that that we can rely on scientific evidence against a statement from the Talmud? We could assume, of course, that like Rav Hirsch writes, Rabbeinu Avraham simply didn't think that the Rabbis were particularly experts in science, and that they were never speaking from tradition in these areas. But let's instead make the assumption, arguendo, that some science of of the Talmud stemmed from tradition. Why isn't Rabbeinu Avraham worried about such a case? And if we are worried about such a case, then R. Ammi's example cannot help us because he is speaking of a case where there was no claim of tradition.
To answer this, we first need to answer the following question: Why is it that reasoning cannot trump an authentic tradition from Sinai? The answer is quite simple: authentic traditions are the postulates of the Torah's legal system. It makes no sense to argue, say, that it is illogical to prohibit cooking a kid in its mother's milk, since the Torah's most basic halachos need not conform to any logic.  The Chasam Sofer referenced above makes this clear: if the systems allows argument with Moshe Rabbeinu's mesorah, then you can reject the laws of the Red Heifer as illogical. The rules of derivation and logic that the Torah gave to us allows to extend and adapt to additional cases not mentioned, but can't be used to override the underlying postulates themselves. Thus the system relies on a notion of a tradition that is an inviolable starting point. 
In science, there is no such limitation. Any time there is a conflict between science and the apparent words of the Talmud, the question can be resolved by examining the evidence on which the science is based. If the scientific evidence is dispositive, then we can confidently say that the contradictory words of the Talmud, if taken literally, could not have been an authentic tradition from Sinai. This is the Rambam's reasoning when he writes that "for speculative matters every one treats according to the results of his own study, and every one accepts that which appears to him established by proof," and "A man should never cast his reason behind him, for the eyes are set in front, not in back". Whereas in areas of halacha, if reasoning contradicts an authenticated teaching, then the system by its nature tells us to follow the authenticated teaching. As a result, even under assumptions most favorable to Rabbi Meiselman's thesis, there is no contradiction between the Rambam's consideration for tradition in halacha with the Discourse's (and the Rambam's) treatment of science as always subject to verification.
So far, we haven't see any cases where the opinions of Rabbeinu Avraham contradict the words of the of his father. But Rabbi Meislman proffers other contradictions between the Discourse and the Rambam. We'll deal with those, with God's help, in the next post.
Comments are both welcome and encouraged. I'll make every effort to address any questions or arguments posted in the comments.
 GEMARA. ‘Ulla said in the name of R. Johanan. This rule applies only to the case where a wild beast tore it away, but where it was cut away by the knife [in flaying] it certainly is deemed negligible. R. Nahman enquired of ‘Ulla, ‘Did R. Johanan also say so even if it was as large as a tirta? — He replied. ‘Yes’. ‘And even as large as a sieve?’ — He replied. ‘Yes’. ‘By God!’ said the other; ‘even if R. Johanan himself had told it me by his own mouth I should not have accepted it!’ When R. Oshaia went up [to Palestine] he met R. Ammi and reported to him the discussion, ‘So said ‘Ulla and so answered R. Nahman’. Said [R. Ammi] to him, ‘And even if R. Nahman is the son-in-law of the Exilarch shall he make light of the teaching of R. Johanan?’ On another occasion he [R. Oshaia] found him [R. Ammi] sitting and expounding it with reference to the second clause [of our Mishnah] thus: ‘IF THERE WERE TWO PIECES OF FLESH EACH A HALF-OLIVE'S BULK UPON IT. THEY CONVEY UNCLEANNESS BY CARRYING BUT NOT BY CONTACT: SO R. ISHMAEL. R. AKIBA SAYS, NEITHER BY CONTACT NOR BY CARRYING. Thereupon R. Johanan had said: This rule applies only to the case where a wild beast tore them away, but where they were cut away by the knife [in flaying] they are deemed negligible’. Then said [R. Oshaia]. ‘Does the Master refer it to the second clause?’ — He replied. ‘Yes; did ‘Ulla tell it you with reference to the first clause?’ Said the other, ‘He did’. ‘By God!’ said R. Ammi, ‘even if Joshua the son of Nun had told it me by his own mouth I should not have accepted it!’
 How can this reconciled with the fact Amoraim don't generally argue with Tannaim? Rabbi Meiselman mentions the opinions of the Kesef Mishnah and the Rav Elchanan Wasserman. The Kesef Mishnah offers the explanation that they simply accepted upon themselves not to do so. Rav Elchanan Wasserman (Divrei Sofrim 2:5) objects to the Kesef Mishna (TCS pg 114 n. 326 IMHO mistakenly identifies this as a concurrence): if so, the Amora could simply disagree with that acceptance. He argues that the universal acceptance of the Mishna and later the Gemara has the same status as decision by a Bais Din Gadol. So an Amora could argue with a Mishna, but he would have to get similar universal acceptance or convene a Bais Din Gadol, since a later Beis Din Gadol could disagree with an earlier, greater one and could even disagree with the Mishnah or Gemara. However, with either explanation, there is no principle that a lesser figure cannot disagree with a greater figure. The Rambam's rule that a lesser and later Bais Din can overrule a earlier and greater one stands.
We can go one step further. Suppose, arguendo, that lesser figures could not disagree with greater figures and that furthermore, we assume that greater figures preceded lesser figures. If so, the resulting rule would be that one could not argue with someone more than, say, 150 years earlier. In that case, late Tannaim could not argue with early Tannaim, but early Amoraim could argue with later Tannaim. Similarly, early Geonim could argue with the later Amoraim, but later Amoraim could not argue with early Amoraim. But this is inconsistent with the practice. So the issue is not precedence or greatness, but the fact that the "redaction" of either the Mishnah or Gemara somehow set a binding precedent; the nature of that authority is disputed, but it does not rest on a principle of complete deference to authority or even deference to a recognized superior.
 According to this preamble, then, we are not duty bound to defend the opinions of the sages of the Talmud, concerning medicine, physics and astrology, as right in every respect simply because we know the sages to be great men with a full knowledge of all things regarding the Torah, in its various details. Although it is true that in so far as knowledge of our Torah is concerned, we must believe the sages arrived at the highest stage of knowledge, as it is said (Deu. 17, 11.) In accordance with the instructions which they may instruct thee, etc., still it is not necessarily so concerning any other
branch of knowledge.
 That is not to say that these laws don't have reasons behind them. Both Rambam and Ramban empahsize even "Chukim" have reasons.
 This doesn't imply that there can never be a mistake in the transmission of a tradition. Chasam Sofer makes explicit that there can be such a mistake after Moshe Rabbeinu. Even the Rambam does not have to maintain that the Torah's transmission is infallible, just that we assume it to be so with respect to halacha in some cases. This can be compared to the following quotation from the Mishneh Torah with respect to the command to follow the words of the Prophets:
The result is that any prophet who arises after Moshe Rabbeinu is not to be believed merely because of the miraculous sign (אות) that he produces. Thus, we don’t say that once he produces a sign, we listen to anything that he says. Rather, it is because Moshe commanded us in the Torah and proclaimed that if one can produce a sign that we must listen to this person. Just as he commanded us to decide matters in accordance with the testimony of two witnesses, even though we don’t know if they actually testified truthfully or not, so too we are commanded to listen to the prophet, even though we don’t know if his sign is a true one or if it was produced by way of sorcery. (Hilchos Yesodei HaTorah, 8:2)