Wednesday, June 15, 2011

4G

Yesterday, I noted how Chasam Sofer was of the view that the Sanhedrin may be mistaken in their rulings, and yet they must be obeyed, due to the importance of a centralized rabbinic authority. In this, he was following the approach of Sefer HaChinnuch (and, arguably, some others). Rav Yosef Caro, as explained by Rabbi Shlomo Fisher, takes the same approach to Chazal. Chazal could indeed be mistaken; nevertheless, we never dispute their rulings. This is because the Jewish People canonized the Gemara; we accept its binding authority, regardless of whether or not Chazal were correct. (Cases involving matters of life and death are an exception to this, as discussed previously).

In my book Sacred Monsters, I noted that Rav Yitzchak HaLevi Herzog applies this approach to the famous case of lice. The Gemara permits killing lice, on the basis that they (were believed to) spontaneously generate. Rav Herzog acknowledged that spontaneous generation had been rejected by modern science, and understood that the ruling permitting lice to be killed on Shabbos was based on this belief. Yet he nevertheless ruled that it is still permissible to kill lice on Shabbos:
…It is permissible to kill a louse on Shabbos, due to it not reproducing, as explained in Tractate Shabbos 107b, i.e. that since a louse does not come from a male and female but rather from sweat, it is not considered a creature such as to prohibit killing it on Shabbos… Although modern science, as far as I know, does not acknowledge the existence of spontaneous generation, for halachic purposes we have nothing other than the words of the Sages. (Rabbi Yitzchak Herzog, Heichal Yitzchak, Orach Chaim 29)

Until now, while I thought that this was also implicit in earlier sources, Rav Herzog was the only authority that I knew of to explicitly apply this approach with the case of lice. But I recently found another such source. Rabbi Moshe Shmuel Glasner (1856-1924) was chief rabbi of Klausenberg in Hungary, who was widely celebrated for his extraordinary commentary on Chullin entitled Dor Revi'i. He writes as follows:

Due to the canonization of the Oral Torah in writing, the statement that “[According to the law that they direct you… you shall do…] even if they say right is left” — by which the Torah instructed that the minority of a given generation is bound by the decision of the majority — applies now, after the completion of the Mishnah, Talmud, and the like, also between generations. This means that if a generation subsequent to the finalization of the Mishnah discovers that the authors of the Mishnah erred, or similarly, if a generation subsequent to the completion of the Talmud finds that the authors of the Talmud erred, we remain with the consensus of the earlier ones, whether this result in stringency or leniency. This is just as the Sefer HaChinnuch writes, that it is better to tolerate one error in one law, than to destroy, God forbid, the entire edifice. We cannot deviate from that which they established as law in the Mishnah or Gemara even regarding something based on science or other disciplines... Consider also that we rule that one is not liable for killing a louse on Shabbat (Orach Chaim 316:9), and that it is permissible to eat fruit and cheese that have developed worms, provided the worms have not separated from the fruit (Yoreh De’ah 84). These laws are founded upon the consensus of the Sages (Shabbat 107b) that these insects spontaneously generated rather than through sexual reproduction… Now in truth, the scientific consensus today is that there is no insect that does not procreate by means of eggs. Nevertheless, we shall not overturn the law, even in the name of stringency, against the ruling and consensus of our Sages… Once compelling need necessitated that the Oral Torah be canonized for future generations, we do not have the authority to change even the slightest detail which they decided and agreed upon, whether with regard to the explication of verses or matters relating to science, for all their Torah is holy to us, and one must not deviate from it… (Rabbi Moshe Shmuel Glasner, Dor Revi’i, Chullin, Introduction)

I don't know how I missed this source, all these years, but it's going to be in the next edition of Sacred Monsters! Thanks to Rabbi Dr. Edward Reichman for bringing it to my attention.

63 comments:

  1. perhaps you've dealt with this issue before ; you say "(Cases involving matters of life and death are an exception to this, as discussed previously)"

    Why ,philosophically, wouldn't the "psak" of the gemorah apply here as well (a la the story of the machloket in psak about treifa impacting where a sick person should live)?
    KT
    Joel Rich

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  2. >"Chazal could indeed be mistaken; nevertheless, we never dispute their rulings. This is because the Jewish People canonized the Gemara".

    In talmudic methodology there is an exception for every rule. These exceptions are frequently invented by achronim; Yad Malachi will give you scores of examples. So, if we assume this to be a rule - ie, the supposed cannoization of the Gemara - ought there not to be an exception for cases in which the amoaraim based their statements on physical facts that we see openly (Ba'chush) are wrong?

    Or would this exceptions swallow the rule?

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  3. Eh? Rules do not *have* to have exceptions. And here, the whole point of canonization is precisely that the halachos hold true regardless of whether we think they are correct.

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  4. Rules, do not "have" to have exceptions, correct. Nevertheless, most of them do. Therefore, if you posit it as a rule that we accept talmudic precedent, it does not follow that we must *always* do so - you can make a logical exceptions for cases where it contradicts fact.

    Example: the rule is we do not change the rulings of previous "beis dins", despite theis obsalescence. Yet we find in many cases that the law has, in fact, changed. Silk mixtures, for example, were forbidden as shaatnez. Yet in Shulchan Aruch (YD 298) we find it is permitted nowadays, because everyone knows what silk is. Look at the commentaries there for citations to other (invented) exceptions to the rule of following previous precedent.

    So I repeat - should there be an exception to following talmudic law in cases where it is based on plain error, or would this exception swallow the rule?

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  5. ... we remain with the consensus of the earlier ones, whether this result in stringency or leniency....

    R' Slifkin -- in practice, are there many examples of the community as a whole adhering to the consensus of lenient rulings of earlier sages, even after more scientifically "correct" and machmir approaches are identified? It seems to me that le-maaseh it usually goes in the other direction, but my perspective is very limited.

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  6. "These laws are founded upon the consensus of the Sages (Shabbat 107b) that these insects spontaneously generated"

    Is "consensus" the right word to use here? It implies that chazal admitted that there could be another scientific reality, but the consesus was to go with spontaneous generation.

    Also, I'm sure it's been covered before, but why did chazal not even admit the possibility of tiny eggs? They knew of thousands of animals reproduce via eggs of all sizes.

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  7. The Gemara in Horiyos 2b talks about someone who has to bring a korban b/c טעה במצוה לשמוע דברי חכמים. How do you explain this?

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  8. I have always understood this issue in terms of the Sanhedrin as a supreme legislative court. Its gezeiros and takanos are binding, even if based on erroneous understandings of the relevant facts because, as a supreme legislative body, the Sanhedrin makes law, and the law cannot be violated until properly repealed or changed (unless it is irreconcilably inconsistent with normative Torah law).

    The Sanhedrin's judicial rulings too must be followed regardless of their correctness. I think Justice Hugo Black's famous aphorism is appropriate: "We are not final because we are infallible; we are infallible because we are final." Some body must have ultimate legal authority on any given question. The Sanhedrin's rulings - correct or not - are binding because they have that final authority.

    Of course, this conception allows later generations lattitude to interpret the Sanhedrin's takanos and gezeiros, and distinguish its judicial rulings in light of contemporary conditions. Where we run into problems - and where I think the chareidi world departs from the normative mode of halachic thought that responds to local and temporal conditions within the normative framework of halacha and Torah Shebaal Peh - is whether we apply this principle to post Talmudic authorities.

    Chareidim would have us believe - in line with the daas Torah concept - that we must follow "the Gedolim" whether they are right or wrong. Of course, applying "lo sasur" to contemporary poskim/talmidei chachamim misses the whole point of why it did apply to the Sanhedrin. We could say "follow the laws and rulings promulgated by the Sanhedrin, even if they are wrong" precisely because it was the Sanhedrin - a deliberative body of the greatest authorities in the generation sitting together at an appointed place, each voicing his opinion without fear, with a final majority vote carrying the day. Also, of course, the Sanhedrin, by virtue of smichah ish m'pi ish, and the manner in which new members were chosen, had a sense of historical continuity and decisional legitimacy.

    All these things are lacking in any post-Talmudic rulings. At best a kehilla beis din's ruling could be binding on that kehilla the way the Sanhedrin's bound everyone, and for the same reasons. But to say that a ruling - signed by one litvish posek in yerushalayim, another in bnei brak, a chassish rebbe, and a rosh yeshiva, as a handful of roshei yeshiva, rebbes, poskim, and pulpit rabbonim in American, without their meeting or deliberating with each other, and without their being appointed to a position of authority by those they seek to bind - is authoritative whether wrong or right, is simply ludicrous, and anti-halachic.

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  9. By the way, here is how R. Herzog cites the Gemara in Horiyos (Heichal Yitzchak EH 1:1):
    שם בהוריות הוא נקרא טועה, שאם ברור לו שזה חלב מן התורה, ואוכל מפני שסובר שמצוה לשמוע דברי חכמים, הרי זו טעות, שאין זה בכלל לא תסור, ואין בכלל זה אלא שלא יורה לאחרים שחלב זה אסור. אבל הוא בעצמו אינו רשאי לאכול חלב דאורייתא, שבי"ד הגדול התירו בטעות

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  10. The principle of following the rulings of the sages of the talmud even if they are contradicted by our knowledge may be cogent. However, it is not universally applied - even in cases not involving saving a life. For example, Tosafot remark that the talmudic conclusion about 2 year old cows being unable to produce calves is no longer true. They presume that nature has changed (the change is presumably due to innate differences between European cows and Afro-Asian ones, together with breeding practices which produced earlier sexual maturity in cows). They do not conclude, to my recollection, that we still must maintain the talmudic presumption of no prior birth in purchasing such a cow from a Gentile.

    More importantly, it seems preferable to me to seek ways to justify a talmudic halacha than to accept the idea that the sages were mistaken, but we follow their rulings anyway. In the case of killing lice on shabbat, one need only reject the mistaken idea of Rav Yosef that the centuries old permissibility of such killing (Bet Hillel had permitted it without giving a reason) was due to their presumed lack of sexual reproduction. Indeed, Abaye brings a cogent text that mentions lice eggs (betzei kinim). Rav Yosef is forced to defend his view with the argument that 'betzei kinim' is some (otherwise unknown)species. Rav Dessler has been often cited as stating that the talmudic halacha may be correct even if the given rationale isn't.

    The latter modus operandi is even more applicable tothe rationales given by the medieval authorities. Thus, we need not impute the halachot pertaining to the permissibility of worms found in stored produce to a mistaken belief in spontaneous generation -as they did. It would be better to attribute it to the idea that eggs too small to be seen by the unaided eye is of no halachic consequence. The latter consideration, which Rav Auerbach was said to support, also pertains to the current anisakis issue.

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  11. R'YA,
    IMHO the problem with that approach is extrapolating to the next new thing. If we don't distill the underlying principle but rather accept it as a chok, we can't apply to new situations.

    It's not unusual to see the siman/sibah(prescriptive/descriptive) differentiation made when trying to explain inconvenient rulings/applications, but then we are left with a hodgepodge of approaches which imho seem very results based rather than theoretically consistent.
    KT
    Joel Rich

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  12. More mythology I believe. "The Jewish People canonized the Gemara, accept its binding authority, regardless of whether or not Chazal were correct."

    No one group or sect of people from a particular time and place can legally bind subsequent generations forever and ever. Moreover the cannon of the Talmud was "not done" with the full authority, consent, knowledge etc., of the Klal Israel like we say Matan Torah was. The cannon was done by an unknown group of redactors over two or three hundred years.(see HaRav Hagoan Davis Weiss Halivni's writings)

    We agree the Torah says we must have a standard of law and judges but there is no such obligation to believe Judges are incapable of error or they have divinely inspired holy ruling and their mistakes should never be corrected. True righteous Judges would recognize the errors sooner or later and repair any possible problems with them and update them as the communities needs dictate.

    Rather we have many right wing Orthodox Rabbis who would rather act as preservationists and posit many false Jewish notions and continue to claim full authority over what is authentic Judaism.

    I commend Rabbi Silfkin for speaking out correctly, there are many injustices that need repairing.

    Kol Tov,

    Rabbi S. Rosenberg

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  13. No one group or sect of people from a particular time and place can legally bind subsequent generations forever and ever.

    Maybe not - but a people can choose to be legally bound by the past. That is the choice that the Amora'im made about the Mishnah, and that is the choice that the Rishonim made about the Gemara.

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  14. It is logically very simple (I think).
    Hashem gave authority to the sanhendrine (the elders) to pasken halachah for the nation, the first elders being given some of the "ruach" from Moshe.

    This athority recognized the possibility of a mistake, and hence Hashem set up a communal sacrifice if the sanhedrine realized it had been wrong.

    Once there is no more sanhedrine, the rulings cannot be "fixed" and therefore no corrections are possible until we make a new Sanhedrine.

    Since we are following Hashem's directive to follow the rulings of the Sanhedrine, if the metzias would otherwise cause a sin, it does not anymore because it is a question of competing deoriysas (the asei to listen to the rulings, and the lo sa'ase of killing creatures on Shabbos for example).

    However if we are talking about killing lice, one is not obligated to kill them for any reason, so one could choose to be strict and not kill them. We just can't tell anyone that it's forbidden.

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  15. "Maybe not - but a people can choose to be legally bound by the past. That is the choice that the Amora'im made about the Mishnah, and that is the choice that the Rishonim made about the Gemara."

    Couldn't one claim that the same choice was made by the leading scholars of the generation regarding Mishneh Torah, Tur or the Shulchan Aruch?

    This would seem to create a quandary.

    Additionally, do we know that the acceptance of the Talmud--or its acceptance as inerrant--was the unanimous position of the Gaonim? Do we know that the acceptance of the Bavli over the Yerushalmi was unanimous?

    Do we know that the sages of the Talmud saw themselves and their "Sanhedrin" as possessing the same authority as the Sanhedrin in Israel at the time of the Mishna, or beforehand, at Yavneh or Yerushalayim B'Zman SheBeit HaMikdash Haya Kayam?

    It seems to me that we have no clear definition for exactly when and how any particular set of halachic rulings, or the authority of a particular generation of sages became unimpeachable.

    Others have cited above various instances in which halacha or halachic reasoning changed via critical inspection of earlier rulings, so the very nature of unimpeachable authority is also not clear.

    Furthermore, the conditions under which Klal Yisrael is considered a halachic body politic, where a group of religious leaders can assume the authority of a Supreme Court and issue obligatory directives changeable only through formal judicial review, are themselves unclear.

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  16. Couldn't one claim that the same choice was made by the leading scholars of the generation regarding Mishneh Torah, Tur or the Shulchan Aruch?

    No, because all those texts are regularly argued upon.

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  17. Rabbi Silfkin wrote.... Maybe not -but a people can choose to be legally bound by the past. That is the choice that the Amora'im made about the Mishnah, and that is the choice that the Rishonim made about the Gemara....

    Again how a few from a like minded people (say the Rabbis of Amoratic time period) bind the many? Where can we obtain proof that they spoke for all Jews in their time and then bound all Jews? From post biblical times forward there’s never been one group who spoke for all Jews. We know from history many Jewish sects were competing and all made claims in their own way to believe each was correctly following the Torah. No one can deny the authority of the Sadducees for example in their day. The Rabbi’s early on lead by Ben Zakai did a great job of gaining political recognition from Rome as the post Temple Jewish authorities. This political position that propelled them to grow is not proof of truth or efficacy regarding a true Torah claim to all thing Jewish or the divine right to rule the forever more.

    We must ask where their authority came from. The Torah doesn't provide this type of executive order by anyone group on behave of all others in a single mass decision. The Torah gives authority to Judges in court proceedings that are brought before the Judges to adjudicate. See Parsha Yisro or Shoftim, I'm sure you know what I'm saying.

    A self serving claim, a political appointment by ancient gentiles rulers or public service announcement of authority and leadership over all things Jewish doesn’t qualify as truth.

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  18. You should read Michael Berger's book on Rabbinic Authority. If you want to claim that the Talmud has no binding authority, don't expect to be considered part of Orthodox Jewish society!

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  19. "Even if they say right is left." seems to be a different case than "a louse is not derived from male and female, rather from spontaneous generation."

    The concepts of "right" and "left" are man made concepts. They can switch at any time. They're just conventions of speaking about different sides of something. If people want to start calling the right side "left" and vice versa, there is nothing wrong with that. Just as long as everybody agrees.

    The same cannot be said for spontaneous generation. That's a fact independent of any human convention.

    I think that needs to be noted. This way, we can see that the law applied to the situation of lice is a human application of a divine principle. The actual practice is more important (inasmuch as everybody goes along) than the underlying reasons for it.

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  20. You're reading the phrase "right is left" too literally. It means, even if they say what appears to be the opposite of the truth.

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  21. R' Joel Rich, I never stated that all the halachot of the sages must be accepted even when we have evidence that they were mistaken in fact. If, anything, such a view is more consistent with the thesis of the blog post. I only differentiated between halachot and the reasons given for them in the talmud. If the reasons are shown to be fallacious, then the associated halacha need not be discarded. Examples are the talmudic designations of a treifa, which are still accepted despite the evidence that some of them will not lead to the death of the animal within the year. The traditional understanding of the matter is that the sages were correct in their assumptionsor tradition. It's just that nature (or veterinary practice) has changed, so that what was once a fatal flaw is now survivable. A similar situation pertains to killing lice on shabbat. The halacha remains even if the only rationale explicitly offered in the gemara is known to be mistaken.

    While new believable rationales may not always be available or of general scope, some are. An example is the idea mentioned that things not visible to the unaided eye are not halachically significant, such as very tiny eggs. Some of these matters are discussed in the lengthy review article by Rabbi Prof. Shlomo Sternberg in the Bar Ilan journal, BDD some years ago.

    In general, I don't believe that there is a rule that dictates what halachot apparently based on erroneous assumptions are to be continued or discarded. It sometimes appears to be a matter of mazal, some halachot have it and some don't. For example, metal pots are still considered to absorb foodstuffs, while glass cookware is no longer so considered (to my knowledge)- despite the view of the Rema that both types of vessels absorb throughout their volume. In fact, only cast iron pots, in the above list can be said to be truly absorptive.

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  22. "If you want to claim that the Talmud has no binding authority, don't expect to be considered part of Orthodox Jewish society!"

    The crushingly overwhelming amount of orthodox Jews, in all generations, never once ceded binding authority to the talmud - they simply never thought about it. They just did what they were told and continued the way they grew up. Most people who take the time to think about it would never cede authority to talmudic rabbis whom, deep down or otherwise, they really dont believe always interpreted the biblical text correctly.

    The better explanation, RNS, is that people accept the Talmud because of a dislike of the alternative. Rejecting the talmud is tantamount to a complete lack of observance, because Jewish observance today is more or less identical with talmudic tradition. Also, even thinking people do have respect for chazal, after all, even if they disagree withm from time to time. For these reasons, and not because they ceded authority to it, people continue to follow talmudic Judaism.

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  23. Orthodox Judaism contains a broad spectrum of views and something that can not be defined by one issue such as Talmudic authority on face value.

    Many "Orthodox" Rabbis and Scholars today believe the Talmud is a great source of Jewish information and law etc.. but can not be taken on face value without examination for it's current value to modern circumstances. Modern Orthodox Jews now believe in the growth of the generations not the decline of etc. and realize much Talmudic thinking is not as accurate as once posited without question.

    Who is really Orthodox and how should it be defined today.

    A. Superstitious preservationists who dismiss modern knowledge place their brains in limbo for two thousand year old concepts and claims of authenticity or B. Modern educated religious minded people who study Torah from all angles of the knowledge, science, reason to better themselves and the world.

    The later sounds better to many Orthodox people.

    DF you also make some good points, however not following the Talmud because of lack of observance is too vague. Some laws or customs we follow as Orthodox are plain wrong and have no place in normative Judaim. We should start by correcting previous errors and take it from there. I believe Judaism may become more attractive to more Jews at that point.

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  24. In the Gemara itself we find many Rabbis disagreeing with one another.
    We see many Gedolim, e.g. Rambam, Ramban, and many many more, disagreeing with Chazal. None of them take this approach.
    The Gemara itself states it is not always correct, e.g. Bava Metzia 59b.

    Everyone has an opinion.
    What makes Rabbi Moshe Shmuel Glasner's, (chief rabbi of Klausenberg in Hungary) opinion erase what Jewish scholars have been doing for millennium?

    Are we not to learn Torah for it's own sake?
    Are we not to learn the Torah of truth, to learn it's truths?

    If we canonize, is it not tantamount to idol worship.
    Is this why we learn Torah, to idolize someone who taught us a wrong, and then, to live that lie?

    Tell me, am I misunderstanding something here, or are you just putting us on over here with all this?
    o

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  25. Here are R. David Zvi Hoffman's mareh mekomos on the contradiction between the Sifri which says "אפילו אומרים לך על ימין שהוא שמאל" and the the Bavli which says that you cannot listen to the Sanhedrin if it is in error:
    שו"ת מלמד להועיל חלק ג (אבן העזר וחושן משפט) סימן פב

    שאלה: איתא בספרי פ' שופטים ומובא ברש"י עה"ת: ימין ושמאל אפילו מראים בעיניך על שמאל שהוא ימין ועל ימין שהוא שמאל שמע להם, ע"כ. ובברייתא בירושלמי הוריות פ"א ה"א איתא יכול אם יאמרו לך על ימין שהיא שמאל ועל שמאל שהיא ימין תשמע להם ת"ל ללכת ימין ושמאל שיאמרו לך על ימין שהוא ימין ועל שמאל שהוא שמאל, וקשיין אהדדי.

    תשובה: הנה גם הש"ס בבלי סותר לדרשת הספרי, דאיתא בהוריות דף ב' ע"ב: הורו ב"ד וידע תלמיד שראוי להוראה ועשה על פיהם דמשכחת לה שהוא שוגג כגון דקא טעי במצוה לשמוע דברי חכמים אפילו למיעבד איסורא, ואלו לדעת הספרי אין זה טעות כלל דהא באמת מצוה לשמוע אל דברי ב"ד הגדול אפילו אמרו על ימין שהוא שמאל וכו' דהיינו שהתירו את האיסור.

    וכבר עמדו על דבר זה ראשונים ואחרונים ודחקו לתרץ. עיין רא"ם בספר יראים סי' ל"ד, מזרחי על רש"י לתורה, באר שבע על מסכת הוריות, מהר"י אלבו בספר עיקרים ג', כ"ג, רמב"ן בהשגותיו על ס' המצות לרמב"ם שורש א' (וזה דלא כמו שכתב בפירושו על התורה בפ' שופטים), ספר החינוך בפ' שופטים, דרשות להר"ן דרשה י"א, חידושי הר"ן לסנהדרין צ"ט ע"א סוף ד"ה ר' יהודה, בעל עקידה שער מ"ג, אברבנאל בפירושו לפ' שופטים, יפה מראה לירושלמי ברכות פ"א הי"ד, ובאריכות בספר שער יוסף למס' הוריות, וע"ג ספר והזהיר חלק א' צד /צח/ ומ"ש שם בענפי יהודה בשם רבו
    Without addressing this question, I do not see how you can assert that the Gemara is the final word. The authority of the Gemara is surely no greater than that of the Sanhedrin ha-gadol.

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  26. Sephardic BachurJune 16, 2011 at 3:09 AM

    I could be wrong but is below not saying the same thing as R' Herzog?

    ר' משה לוי, מנוחת אהבה, פרק יח, מי מנוחות 13 (בני ברק, תשנ"א, כרך ג); ז"ל

    ודע שלפי מה שגילו חכמי המדע בזמננו שהכינים פרים ורבים מזכר ונקבה, שהכינה מטילה ביצים ויוצאים מהם כינים, ודלא כמו שאמרו בגמ' (שבת קז:) שאין הכינה מטילה ביצים. ועיין שם שדחקו לפרש מ"ש שהקב"ה יושב וזן מקרני רמים ועד ביצי כינים, דהיינו מין בעל חיים שנקרא ביצי כינים. ולפי מה שהתברר היום שהכינה מטילה ביצים, אתי שפיר כפשוטו. אולם עכ"ז עיקר הדין שמותר להרוג כינה בשבת בודאי שהוא אמת ויציב וקיים לעד, ואין אנו יכולים לפקפק כלל בדברי חכמינו ז"ל, ואפי' יאמרו לנו על שמאל שהוא ימין מחוייבים אנו לקבל דבריהם. ובנ"ד שהתנאים לא בארו לנו במפורש הטעם שמותר להרוג כינה בשבת אע"פ שהאמוראים בארו שהוא משום שאינם פרים ורבים, יש לומר שאמרו כן לפי מה שסברו שאינם פרים ורבים, אבל בהגלות נגלות שבאמת הם פרים ורבים יש לומר שהטעם שמותר להרגם משום שאינם פרים ורבים מזכר ונקבה בלבד, שהרי הביצה שמטילה הכינה לא תרקם ממנה כינה אלא במקום זוהמה כמו בשערות הראש שיש בהם מלמולי זיעה. וא"כ לא דמי לאילים ותחשים שפרים ורבים בכל מקום. כנלע"ד להעמיד דברי חכמים ז"ל. ועיין בירושלמי שבארו הטעם שמותר להרוג כינה בשבת משום דהוי בריה שאין לה עצם, וכל בריה שאין לה עצם אינה חיה ששה חדשים והו"ל כדבר שאין לו חיות. ע"ש. אלא שלפ"ז גם פרעוש ושאר יתושים ובריות שאין להם עצמות מותר להרגן בשבת מה"ת, ובהדיא אמרינן בתלמודא דידן (שבת קז:) שההורג פרעוש בשבת חייב. ושמע מינה דלא ס"ל טעמא דירושלמי הנ"ל. ומ"מ י"ל כמש"ל. עכ"ל

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  27. No, he's not saying the same thing. He's saying that the halachah was instituted for a correct reason.

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  28. A legislative act can certainly be binding even if it's based on a mistake. But to repeat the mistake as truth when you know better and to silence anyone who speaks the truth is repugnant. To do it purely in the name of obedience to men when it contradicts the will of the Almighty as expressed in every atom of the Creation is well over the line into idolatry.

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  29. What makes you say that it contradicts the will of God? The story of the Achnai oven indicates otherwise.

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  30. a perfect example of being obligated to listen to BEIS DIN HAGADOL,even if they rule on something contrary to HALACHA,is the example of not blowing the SHOFAR,and not taking the LULAV on shabbos,even though the TORAH obligates us to do it even on SHABBOS,we cannot do the MITZVAH,because of ''YESH KOACH B'YAD CHACHOMIM L'AKOR DAVAR MIN HA'TORAH.
    chaim.s

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  31. This sounds very different from the Rambam's view. According to the Rambam, not only can the Sanhedrin (and chazal) have erred, but we also don't necessarily go by "whoever came first" to decide the law. I realize this is balanced with an overall hierarchy of authority and acceptance for the Talmud/Oral Torah as a whole, but nonetheless, the idea that a view which we find errant should be followed because it's old, seems quite contrary to Rambam's overall point of view.

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  32. No, it's not. Look at what Rambam says regarding terefos: “with anything which they enumerated as a terefah, even if with some it is seen not to be fatal based on modern medicine, such that an animal [with such an injury] might sometimes live, we have only what the Sages enumerated, as it says, ‘According to the law that they direct you’.”

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  33. "I have always understood this issue in terms of the Sanhedrin as a supreme legislative court. Its gezeiros and takanos are binding, even if based on erroneous understandings of the relevant facts because, as a supreme legislative body, the Sanhedrin makes law, and the law cannot be violated until properly repealed or changed (unless it is irreconcilably inconsistent with normative Torah law).

    The Sanhedrin's judicial rulings too must be followed regardless of their correctness. I think Justice Hugo Black's famous aphorism is appropriate: "We are not final because we are infallible; we are infallible because we are final." Some body must have ultimate legal authority on any given question. The Sanhedrin's rulings - correct or not - are binding because they have that final authority."


    What Shlomo said here is one of the main reasons why it is incredibly stupid that the Jewish people refuse to reconstitute a Sanhedrin.

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  34. "Additionally, do we know that the acceptance of the Talmud--or its acceptance as inerrant--was the unanimous position of the Gaonim?"

    I don't believe Rabbi Slifkin called it inerrant. The gaonim of course did accept the "talmud" (whatever form it was in at that time) and the scholars show that they (the gaonim) added a few things to it here and there. But it's what the gaonim studied and taught and promulgated. There's no dispute about that.

    "Do we know that the acceptance of the Bavli over the Yerushalmi was unanimous?"

    No, in fact we know it was not. In Eretz Yisrael they went by the Yerushalmi, and in Bavel they went by the Bavli.

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  35. to Rabbi Slifkin - Interesting. But Rambam does say explicitly that a later Sanhedrin can uproot the ruling of a previous one and specifically we don't just go by who came first but which logic is more appealing (ie, the scholars determine the legal decision based on logic and strength of argument, not on whose psak or ruling came earlier in history). Maybe there is some subtlety between the scenarios which I am missing here. What differentiates between the situation I speak of and the one you described about treifos?

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  36. The difference is, chasimas haTalmud. See Kesef Mishneh to Mamrim 2:1.

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  37. The comments here are all very interesting. However, it seems to me that the issue is much more complicated then various people are making it sound.

    On the one hand, we say that we follow the Bavli more than the Yerushalmi because it is "later", and for many generations, we always followed the "later" ruling. The older the ruling, the more we assumed it didn't have all the relevant information etc.

    However, after the Shulchan Aruch, (and perhaps after the Zohar?) the reverse happened. We tended to go by the older the ruling the more authentic it was.

    This creates a mobius strip/catch 22/infinite loop, where we follow the earlier opinions which tell us to always follow the later opinions, which tell us to follow the older opinions.. etc.

    It is also true, that after the period of the Shoftim, the Jewish people never agreed on anything religiously. There was always differing opinions regarding what was binding and what wasn't after that period. Some, I believe the Zohar, likes to argue that even before then, there were always 12 equally valid ways of doing things, and 70 ways to understand each of those 12 halachot.

    I know that Rabbi David bar-Hayim apparently gave a very good lecture about why the Talmud is binding, but I never saw it posted online, so I don't know what he said. Maybe somebody here could tell us. But the reason why I find Rabbi David Bar-Hayim's answer to that question interesting, is because he is of the opinion that most takkanot and halachot recorded in the Talmud Bavli are not actually based on the rulings of Sanhedrin, but rather were the rulings of the Yeshivot in Bavel or the rulings of the Exliarch. Same with many of the rulings in the Yerushalmi.

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  38. 1)ומעולם לא נמנעו האחרונים מלסתור דברי הראשונים

    2) and some read that Amoraim could argue on a Tana but chose not to

    3) and do we throw out all minhagim against the Gemera.

    4) Is Tos. tossing mayim achronim against this? Is an interpretation of reason (we dont have melech sedomis) to change a practice OK

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  39. So, our dear Rabbi. What is the bottom line?

    What dose this all mean as far as your future views, and will you review and reverse your past viewpoints?

    Dose your blog shift from a Rationalist, Reasonable, Senible, Sound reasoning, Thoughtful thinking, Sane, Lucid, Normal, Advisable, Judicious, Judaism theme,... to a Unrationalistic, Fanatical, Overzealous, Monomaniacal, Radical, Ultraistic, Rabid, Extremeness, (every word in the thesaurus) Judaism theme?

    If this is the transition you are making, which is what it sounds like, then you have rendered yourself obsolete for this blog.
    o

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  40. I haven't made any shifts lately. I have always maintained this approach to canonized halachah in the Gemara. And I don't see anything remotely Unrationalistic, Fanatical, Overzealous, Monomaniacal, Radical, Ultraistic, Rabid, or Extreme about it.

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  41. What goes against God's will? Let's take a couple simple examples.

    God said we live on a ball of rock with a thin coat of gas that travels around a giant fusion reactor. A distressing number of the Orthodox believe it's the other way around and say heliocentrism is true because men said so. God says one thing. Man says another. They have complete faith in a man-made image.

    Certain religious scholars say no animals with the signs of kosher animals - cloven hooves, milk which curdles, cud-chewing ruminants - exist other than those which were known in the Ancient Near East. When presented with clear evidence that such exist - pronghorn, vicuna, musk ox, arguably the babirus to name a few - they deny it because men said it couldn't be true.

    I don't have any issue with their legal decisions being binding until such time as Israel collectively says otherwise. If they say "Killing lice is alright on Shabbos" that's the law. The idea that the Bronze Age beliefs they borrowed from their neighbors about the nature of the world must be accepted as true when they can be easily disproved isn't. It makes the Author of reality subordinate to fallible human beings.

    When people try to force others to believe that something false is true they are liars. Nothing good can come from building lies into the foundation of ones religion.

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  42. I appreciate some of the comments here and some are on point. There's still a problem of sorts in interpretation of Talmudic Law with regards to overturning previous rulings or courts. Many people seem to miss the fact of the matter.
    True rationalist and truly honest judges and courts are of the opinion as follows;

    A. When new evidence and knowledge is known that wasn't known before it must be taken into account and not ignored due to some preservationist approach to Torah. The law must be adjusted accordingly to what we know as reality in our day and age.

    B. There is a huge flip/flop by Talmudists as they have created a fictional philosophy that claims there's a "Decline of Generations". We know this is not true and the Rambam rejects this notion out right and writes that in the future people will become more knowledgeable etc...

    Moreover the Torah clearly enunciates that we "Shall listen to the Judge in our day" Parsha Shoftim and Rashi comments that regardless of the fact that a greater court in a previous generation may have ruled, all we have to go by is the current courts that how God arranged it to be so to speak. Based on direct Torah commandments previous courts are not now and never were the final word on all matters.

    Moreover any current rabbinic court that denies science, facts, reason, logic etc. should not be followed or even considered a legitimate court by any Jewish standard because their judgments cannot be trusted due to the fact they deny reality and are therefore false leaders.
    Rationalists and truth seekers can't have it both ways nor can they walk the fence regarding the absolute truth and justice in order to satisfy community pressure from false Torah teachers claiming authority. God commanded we act and judge with Justice and Righteousness.

    These are not my words but of the Rambam and others great Jewish Philosophers.

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  43. And yet Rambam, who did not believe in yeridas hadoros, did not argue with the halachic conclusions of Chazal. Why? Because there's nothing anti-rationalist or dishonest about accepting to uphold a system of authority.

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  44. To add to my last comment the Rambam was in major disagreement with many things Chazal claimed including, life after death and resurrection concepts. Anything they claimed that had something to do with demons, astrology he flatly rejected.

    These are not minor disagreements but major ones that have a lot of impact on jewish thought.

    I'm not saying the Rambam disagreed with all of Chazal I don't think anyone ever did but we still have an obligation today to look at each halalcha and re-examine and repair or update them as halacha requires for the benefit of Judaism.

    Shalom

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  45. But these were not halachos. Where there were halachos based on these things, he usually accepted them, and gave other reasons for them. Although I agree that sometimes he simply ignored them.

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  46. Good point about the Rambam, I think he was great at reframing many halachot to make them acceptable to rational thought.

    I'm not sure how many people realize that it seemed he was trying to re-shape much Jewish thought that was handed down to us by the Talmudists.

    It also seems reasonable to take the position from the Rambams writings he was actually in great dis-agreement with the Rabbi's including Halacha but would not openly be so bold as to say that publically.

    On one hand he'd tell us we must follow the Halacha (Mishnah Torah)and on the other hand in (Morah) he would tell us not to follow superstitious and non rational thought that contradicted knowledge and reason. That statement would be worthless had he not meant to include Halachot as well when it failed to meet rationalist standards.

    That's why some people feel we have to pick a side. Either be a rationalist or a traditionalist steeped in superstition and many false notions at it base.

    I believe more and more religious Jews "orthodox" are leaning towards rational thinking.

    Thoughts?

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  47. You cite kesef mishna but the reality is Rambam never "qualifies" or negates the existence or operation of a Sanhedrin because of a post talmudic world. In fact he says it will be re-established at some point in history (we are obligated to) and that is why he lists those halachot. So why if the talmud is in substitution for a sanhedrin for the time being (although he doesn't say that explicitly but it can be understood from him and other sources or implicit understanding) why would the analogous case of the sanhedrin not be applied to a post talmudic posek? All the moreso if a sanhedrin can be negated certainly a psak from talmud can, no? We all are aware of rambams intro to mishne torah and we all know that the talmud the document covers a period of interpretation and discussion that was several hundred years after his final lynchpins ravina and rav ashi.

    I will look up the source you listed.

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  48. I'm not sure if Student V is talking to me, sorry if I'm speaking out of line but you made a couple of interesting comments.

    1. There's nothing in Rational Thinking that would argue against re-establishing a Sanhedrin as you mentioned or that at some point in time it will happen al pi the Rambam. However since Judaism is much splintered even with-in the range of Orthodox communities who or what criteria of the Judges would satisfy all Jews. There could be possibly multiple Sanhedrin’s as there are multiple philosophies in Judaism.

    2. Many Rabbi’s and Scholars feel the Talmud can never ever be in any sense a substitute for any type of Sanhedrin. The Talmud is a collection of concepts, thoughts, practices, theories, references, stories, etc...

    The Talmud surely helps with insights to Jewish traditions in some sense but is not definitive and again limited to the time and place it was created for starters. Some concepts still may apply today while others clearly do not therefore it all comes down to what level the people will allow the Talmud to influence their practices.

    Shalom

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  49. Even if one were to To canonize chazal. Doing it through the Gemara would be problematic, for the following facts.

    1) Both, the Jerusalem Talmud was written by one person, Rabbi Yochanan, and the Babylonian Talmud was written by one person, Rav Ashi.
    Do we know if their writtings were prove read by any of the other Rabbis, and most important, were they selective and opinionated of what they wished and believed should go into their Gemara, contrary to the other Rabbis?

    2) These Rabbis had left out many words from their writings, leaving it's interpretations open to the commentators, e.g. Rashi, on whom many mainly rely on, and who lived many centuries later.

    3) Many of the commentators do not agree with each other on of what the Gemara is precisely saying.
    With whom dose one follow?

    4) As we all know, the Gemara was redacted by outside influences, not to enhance the Torah view, but to delete certain truths, to the pleasings of the pagans and christians etc.
    No one knows for sure to what extent, and how many times it happened.
    What did this missing info say?
    e.g. The Gemara could have ment to say that this is "not" the way the sun travels across the sky.

    5) The Gemara's conclusions are based on the cases that had been resolved in the Rabbinical courts of those days and of centuries before.
    How accurate were the records of the courts throughout these many centuries kept?

    6) Who knows for sure, of how many of the details that was of significance to the outcome of these cases, is not mentioned in the Gemara? As we see in any trial one would observe, in any Rabbinical court of today, details matter.

    7) After finding many inaccuracies, (for whatever reason it may be,) in the Gemara, how reliable dose it tell us it is.
    In other words, it, the Gemara itself is saying, "it is not to be relied upon."

    8) The most important fact we all must consider.
    The cononizing of the Gemara was done at a time before it's many inaccuracies were discovered by the masses. At a time when it made all the sense in the world, making it very easy to do so.

    To exaggerate my point. If the Gemara would say, put water in your gas tank, would there still be a canonization?
    o

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  50. This comment has been removed by the author.

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  51. I deleted my last post because of a couple of type o's, here is the corrected post, I hope.

    Issac let me add to your points something else.

    As you mention there are many various views in the Talmud so how can law be decided from that etc...

    If you recall the Rabbis use a seemingly "fictional philosophy" to follow the majority. They base this concept from a Torah pasuk that says "Don't follow the majority to do evil". Ex. 23:2 The Talmudists usually quote it to say the opposite "follow the majority for good" which is incorrect.

    A Rationalist will immediately notice the Pasuk is flipped 180 degrees to help establish a concept that doesn't exist in Torah or at least is very very vague. In terms of Halacha to follow the majority gives Rabbis the legislative power to vote on law according to the majority opinion vs. truth. This is a very common practice used in the Shulchan Orech by R. Yosef Karo.

    For governing of a people I see why this was done to create some order, however as far as truth and efficacy it is very questionable and brings us to the concept of a Zakain Mamre (Rebellious Elder or Sage) brought down in the TB Sanhedren, which means even if the majority is 100% wrong and the minority is 100% correct the minority is obligated to follow regardless based on this flipped around pasuk.

    However this system can easily subjugate the truth by a majority vote. Many have a hard time with a system that will let truth be overturned just to get passed problematic issues. Is this the way of righteous and justice God commanded or is this the short coming of the Talmudical and Rabbinic leaders and their lack of knowledge and wisdom to deal with truths?

    Some have said and I believe this is important to realize; Maybe the Torah never meant for there to be only one correct answer or one way to interpret the mitzvot and each Jew or community is free to investigate these truths for themselves. The Shulchan Orech brings down one ruling based on the majority of a few selected rabbis the codifier subjectively picked. Why should one person decide who's opinions should be used to decide the laws. Others could have picked other sources and came up with an entirely different set of Halachic standards. The Talmud gave us various opinions because maybe they knew that Halacha is subjective to the time and place it's being applied.

    From this we can see why the Talmud can't be used as some sort of pseudo Sanhedren or definitively method to decide laws and why Talmudic authority can't be considered forever binding. We can only look to the Talmud for insights that help us decide how to live in our time.

    Sorry for the long post these are important concepts in Rationalist Torah thought worthy of study.

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  52. Rabbi Simon, In concert to what you have said.

    As you have said, this verse Exodus 23:2 states, "Do not follow the majority to do evil." but then it states "Do not respond with your opinion in a dispute to lean [toward one side]. It must be decided by the marjority."

    But not if the latter violates the former, i.e. To follow the majority to do evil.

    The verse is referring to a court case, when passing judgment of an individual on trial. (At least it seems so on the surface of it.) And therefore becomes questionable (in my opinion) if it can be used to decide Halachah.

    But in the Gemara, Bava Metzia 59b, Rabbi Yehoshua borrows this verse to win his argument on a matter of whether an oven is Tahor or Tamei against Rabbi Eliezer. He quotes "According to the majority [the matter] shall be decided." Ex. 23:2.

    And then, Even though a Heavenly voice proclaimed "That the Halachah follows Rabbi Eliezer, Rabbi Yehoshua declared "The Torah is not in Heaven." Displaying no fear of Heaven.

    The Gemara then goes on and says that not only was Rabbi Yehoshua and his majority wrong (through the meeting of Rabbi Nassan and Elijah) But, the majority after having already prevailed, had then went and collected all the things Rabbi Eliezea (the minority) had declared to his ruling, to be burnt in his presence, and then voted on him to/and excommunicated him, for no justifiable reason. Leaving Rabbi Eliezer utterly devastated.

    And even after many calamities had fallen on the world, do to this harsh, cruel, and unfair treatment of Rabbi Eliezer, there dose not seem to have been any reversal of their decision.

    As I had mentioned above the verse states in Ex. 23:2 "Do not follow the marjority to do evil."

    All of these actions that was perpetrated by this majority, that the Gemara states that took place in this dispute, Bava Metzia 59b, is by any standard considered an evil act, not only against a true Halachah, but of a fellow Jew and a great and wonderful sage.

    If this is what actually happened, it is therefore in violation of the 76th Mitzvo of the Taryag Mitzvos.
    "Do not follow the majority to do evil."
    o

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  53. Thanks Isaac, I'm glad you added that. I want to but didn't feel like writing a post that's too long people may not read it.
    Anyway here comes a big post.

    This is a new source to me the Dor Revi'i and can't wait to study his works a bit. Maybe some of you are more familiar? Copied in part from Wikipedia.

    “…Written text received at Sinai. That process of interpreting the written text and applying it to ever-changing circumstances constitutes the Oral Law or Tradition. The Oral Law, like any living tradition, cannot remain static and unchanging. Nor was it intended by the Divine Author of Written Law that the Oral Law be static. Indeed, the dynamic nature of the Tradition was imbedded in the Oral Law by the ancient prohibition against writing down the rulings of the Oral Law in an authoritative text. As long as the Oral Law was transmitted orally and not in writing, later authorities had the right to overturn the rulings of their predecessors that were predicated on a particular interpretation of the Scriptures (Maimonides Mishneh Torah, Hilchot Mamrim 2:1-2). This purely oral transmission of the Oral Law ensured its flexibility and adaptability to changing circumstances. However, the right of later authorities to change the rulings of earlier authorities was radically circumscribed when the prohibition against writing down the Oral Law in a canonical text was abrogated by Rabbi Judah the Prince (second century of the common era) in order to produce the Mishnah. The justification for abrogating the prohibition against creating an authoritative text of the Oral Law was that the looming onset of the Diaspora would make preserving the Oral Law as it had been known previously impossible. Only through the creation of an authoritative text could the integrity of halakhah be maintained under the unprecedented conditions of prolonged exile in the absence of any supreme halakhic authority. But clearly the resulting ossification of the Oral Law owing to the combined effects of exile, persecution and an authoritative written text was very far from the process of halakhic evolution and development which Rabbi Glasner believed was the Divine intention. It was from this philosophical perspective that he conceived of Zionism as a vehicle not only for national rebirth in the Holy Land, but for restoring the Oral Law to its ancient position as the means by which the spirit of the Jewish people in each generation could find concrete expression…”

    There's a lot to say here, any thoughts?

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  54. Rabbi Simon, The universe physically, is constantly expanding.

    People are always being confronted with contrast, for the purpose of expanding to higher levels

    The universe is set up to cause us to expand.
    One can not be standing still.

    In every moment no matter where we stand there is contrast, that is causing us to grow and if we don't go with the expansion, then we feel the resistance of being pulled apart.(so to speak)

    The Oral Torah, itself declares there has to be change.

    The Midrash says, Jews should be like a reed in the water--flexible enough to bend with the winds of time, but not so flexible as to be washed away by the tide.

    Meaning, there should be a balance in the changes we make for the times we live, not far right, nor far left.

    Everyone has desire.
    No one can be standing in middle of a buffet of choices all around us, that is causing constant growth without any change.

    To canonize the past (the Gemara) is to canonize stagnation.
    o

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  55. Thanks Issac not much there that doesn't make good sense.

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  56. R. Slifkin:

    Where does Rabbi Shlomo Fisher say that R. Yosef Caro says that Chazal may be mistaken in their rulings?

    Thanks.

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  57. Derashos Beis Yishai 15. He doesn't say that R. Caro says it explicitly, but he does explain that it is the clear inference.

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  58. רמב"ם הלכות שגגות יג:ה הורו בית דין לאכול חלב הקיבה כולו, וידע אחד מן הקהל שטעו ושחלב הקיבה אסור, ואכלו מפני הוריתן, שהיה עולה על דעתו שמצוה לשמוע מבית דין, אף על פי שהם טועים--הרי זה האוכל חייב חטאת קבועה על אכילתו, ואינו מצטרף למניין השוגגים על פיהם. במה דברים אמורים, בשהיה זה שידע שטעו חכם או תלמיד שהגיע להוראה; אבל אם היה עם הארץ, הרי זה פטור--שאין ידיעתו באיסור ידיעה ודאית, ומצטרף לכלל השוגגים על פיהם

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  59. דברי הרב ודברי התלמיד

    I do not see how you can violate a Divine biblical prohibition because of what an earlier generation thought. If there's no alternative reason that can be given to permit something, why would it matter that they once thought it was permitted? Why should the 'easier way' take priority over the truth? What would chazal themselves say if they knew the science?
    A more tenable position would be to follow earlier authorities such as the Talmud in area that do not have clear-cut definitions that they formulated in a certain way, even if we might have chosen a different way. See the chapter on science in Iyunim B'Mishnato shel haRambam. by R.N.L. Rabinovitvch.

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  60. I don't see how R. Fisher can be read to hold that R. Caro holds that Chazal could have been "mistaken" (but we are bound by Talmud Bavli nontheless).

    R Fisher is explaining that we are bound by Chazal's rulings because at the time of the canonization of the Bavli, all or most of the big Rabbis accepted upon themselves that later generations cannot argue with the Bavli.

    This does not necessarily mean that they recognized that Chazal of the Bavli could have been "mistaken"; R, Fisher can (and probably does) hold like most other Chareidim, that the later Rabbis accepted that the earlier rulings were divinely inspired. R. Fisher is explaining why we accept that they were divinely inspired: because all of the Rabbis accepted that at the time of the canonization of the Bavli.

    In the absence of a clear statement from R. Fisher that R. Caro held that Chazal could have been mistaken, I believe that it's a stretch to say that that is what he holds.

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  61. Did you read the whole piece? He specifically disputes the Chazon Ish's claim that the reason for not arguing on Chazal is that they are more likely to be correct.

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  62. Found a similar approach to R. Rabinovitch's in R. Yehudah Henkin's
    שו"ת בני בנים ח"ב סי' כ"ג אות ו'
    והנה בכמה עניני העולם החוש מכחיש מה שמסופר בתלמוד וכגון ברפואות ותרצו הראשונים שנשתנה הטבע, ולא תרצו שנכחיש החוש ושבדברים אלה אפילו יאמרו לך על ימין שהוא שמאל שמע להם כי זה לא נאמר אלא בדברי התורה כמו שכתוב על פי התורה אשר יורוך וגו' וכן פרשו כל הראשונים שהכתוב מיירי בדברי תורה, בספר המצות עשה קע"ד לעשות כל מה שיצוו מאיסור והיתר וכו' עכ"ל ובהשגות לשורש הראשון אין הלאו הזה לא תסור אלא במה שאמרו בפירושי התורה עכ" ל ובספר החינוך מצוה תצ"ו ועובר ע"ז ופורץ גדר בכל מה שלמדונו רבותינו בפי' התורה כגון באחת מי"ג מדות או בדבר שהוא אסור מהלכה למשה מסיני וכו' עכ"ל וכן בכולם. ולפי זה תבין דברי הרמב"ם בהלכות שגגות פרק י"ד הלכה ג', שכתב הורו בית דין שיצא השבת לפי שנתכסית החמה ודימו ששקעה החמה ואחר כך זרחה, אין זו הוראה אלא טעות, וכל שעשה מלאכה חייב וכו' וכן אם התירו בית דין אשת איש להנשא לפי שהעידו בפניהם שמת בעלה ואחר כך בא בעלה אין זו הוראה אלא טעות וכו' עכ"ל והקשו במשנה למלך שם ובלחם משנה פרק ה' הלכה ה' שאפילו אינה טעות הלא יחיד שעשה בהוראת בית דין חייב, ולע"ד השמיענו הרמב"ם בי מה שהורו שהשמש שקעה או שהבעל מת הוי טעות במציאות ולכן אפילו עם הארץ כיון שראה את השמש או את הבעל אינו רשאי לסמוך על בית דין. ושונה עניני העולם מעניני התורה כי בעניני התורה הראשונים הם כמלאכים ובפרט שהם קרובים יותר לנתינת התורה ולדברי רבותינו כל אחד לפי דורו, אבל בעניני העולם ככל שעוברים הדורות נלמד יותר מהי הנהגת הקב"ה בעולמו
    I was actually thinking of something like this--but more generally, that a mistake does not have a שם הוראה, which would explain the Rambam in הלכות שגגות יג:ה as well.

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  63. “Indeed, even our sages asked this question: How is it that for the former generations miracles were performed and for us miracles are not performed?… [BT Berakhot 20a].

    Thus, although it is obvious, both to the one who asks and to the one who answers, that the first were more important than they, with respect to Torah and wisdom, Rav Papa and Abbaye were more important than the first. Thus, although the first generations were more important than the latter generations in the essence of their souls, because the purer is selected to come to the world first, with respect to the wisdom of Torah, it is increasingly revealed in the latter generations. This is so for the reason we have mentioned, that the overall measure is completed specifically by the latter ones. This is why more complete lights are extended to them, although their own essence is far worse.

    Hence, we could ask, ‘Why, then, is it forbidden to disagree with the first ones in the revealed Torah?’ It is because, as far as the practical part of the commandments is concerned, it is to the contrary, the first were more complete in them than the last. This is because the act extends from the holy vessels of the sefirot, and the Secrets of Torah and flavours of the commandments extend from the lights in the sefirot. You already know that there is an inverse relation between lights and vessels: in the vessel, the higher ones grow first, which is why the first were more complete in the practical part than the last. But with the lights, where the lower ones enter first, the last are more complete than the first [this picture fits with Maimonides’ notion of scientific development cf. Guide of the Perplexed 3:14: Do not ask me to show that eveything the sages have said concerning astronomical matters conforms to the way things really are. For at that time mathematics were imperfect]” (Ba’al ha-Sullam, Rav Yehudah Ashlag, Introduction to the Book of Zohar, 64-65).

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