Friday, January 17, 2014

Guest Post: Can we “pasken” the age of the universe? (Part 1)

Copyright 2014 by David Ohsie. All rights reserved

“We’ve already mentioned to you many times that with regard to any argument between the sages which does not involve practice, but rather the establishment of a theory, there is no room to render a p’sak that the halacha is like one of them” -- Rambam, Peirush HaMishnayos, Sanhedrin 10:3.

Introduction

A recurring theme in the ideological battles over Torah and Science is a dispute over a somewhat technical issue: what is the role of halachic decision making (P’sak) in deciding theological questions and the interpretations of the Torah? Is a majority considered authoritative in such matters? Are minority opinions and individual opinions (Daas Yachid) excluded? Rabbi Aharon Feldman says “yes”, while Rabbi Aryeh Carmell and Rabbi Aryeh Kaplan, say “no”. In this series of posts, we will explore this dispute mainly from the perspective of the Rambam and some recently published interpretations of his work.


The Position of the Rambam

The Rambam declares clearly, in many of his writings, that binding halachic decision-making, or p’sak, only applies to practical halacha. It is not possible to making binding halachic decisions on matters of fact or theory. So whether or not wearing an amulet on Shabbos constitutes prohibited carrying is subject to p’sak. However, whether or not the an amulet actually works as an effective cure is not subject to p’sak. The start and end times for Shabbos are subject to p’sak, but whether the path of the sun at night goes over the sky or under the earth is not.

This principle is easy to understand. P’sak is a legal phenomena that can have effect on “halachic (legal) reality”. Halacha itself has delegated the power to make binding decisions in halacha to the Sanhedrin, Dayanim of a Beis Din, to local rabbinic authority, or to B’nei Yisrael as a whole, depending on the circumstance. However, a halachic decision can only change the halachic ruling; it can’t change the path of the sun. By way of analogy, the American legal system delegates power to decide legal guilt or innocence to a jury; however a jury decision cannot change the fact that a “guilty” defendant was actually framed for the crime.

The Rambam makes clear this reasoning in his commentary on שבועות 1:4 in a dispute over which public sacrifices atone for certain types of sins of negligence:
With regard to this argument, it is not said “the halacha is in accordance with the words of so-and-so”, since the matter rests with God … and we’ve already said with regard to any theory which has no practical impact which the sages argued about, it is not said “the halacha in accordance with so-and-so.”
Since the matter rests with God, and there is no practical implication, it makes no sense to “decide” the issue in favor of one side or the other. Furthermore, in any case where the dispute is purely theoretical and has no impact on practical matters, there is no place for saying that the Halacha follows one or the other of the disputants.

The Rambam also makes clear that when Halachic decision making processes are appropriate, they enable practical decisions to be made, but they cannot change the underlying reality. The reality may not match the decision, but we are required to follow the process anyhow. For example, we are required to follow a Prophet who backs up his prophecy with miraculous signs, even though we don’t completely trust those signs, and we accept the testimony of two witnesses even though we don’t know whether they are telling the truth (translation and emphasis, mine):
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)
As a result, when we follow the testimony of witnesses or even the commands of an accepted prophet, we are following a halachic process, but the underlying reality may differ. By way of analogy, Justice Robert Jackson once wrote of the US Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final."

We can provide further support and understanding of the Rambam’s position from a well-known statement in the Gemara (Eiruvin 13b):
R. Abba stated in the name of Samuel: For three years there was a dispute between Beth Shammai and Beth Hillel, the former asserting, ‘The halachah is in agreement with our views’ and the latter contending, ‘The halachah is in agreement with our views’. Then a bath kol issued announcing, ‘[The utterances of] both are the words of the living God, but the halachah is in agreement with the rulings of Beth Hillel’. Since, however, both are the words of the living God’ what was it that entitled Beth Hillel to have the halachah fixed in agreement with their rulings? Because they were kindly and modest, they studied their own rulings and those of Beth Shammai, and were even so [humble] as to mention the actions of Beth Shammai before theirs.
We must always take care in interpreting words of Aggadah. But it seems clear that one of the possible simple implications of the Gemara is as follows: while we must decide the Halacha in favor of one or the other schools of thought for practical purposes, each position retains its original value as “words of a living God”. There is no final decision as to who was “right” and who was “wrong” and both positions are still worthy of study. This fits in well with the Rambam’s conception of deriving Halachos as a human endeavor subject to human limitations. The Rambam writes in the introduction to the Peirush HaMishnayos that there was originally little argument between Bais Shammai and Bais Hillel, but that
…when the studies of their students were curtailed, and the ways of deduction became weak in their hands compared to that of Shammai and Hillel their teachers, there arose among them argument in the course of the give and take of discussion on many topics, because each of them deduced conclusions according to the strength of his knowledge and according the principles known to him. And we don’t blame them for this because we cannot force two people who are arguing to argue on the level of understanding of Yehoshua and Pinchas. And we are not permitted to doubt what they argued just because they are not like Shammai and Hillel or greater than them, because God did not require this of us; rather he required us to listen to the sages of whatever generation we are in…
Each side in an argument adduces whatever support they can based on highest level of understanding attainable in their generation. Thus when we “pasken” a halacha, we are not claiming to have definitively reached the same conclusion that Moshe Rabbeinu would have reached; we are rather following a procedure handed down to us to decide Halacha. If so, where there is no practical impact, it makes no sense to rule for one or another interpretation of a Pasuk as the definitive meaning.

In our next posts, with God’s help, we will take up some objections that have been raised to the positions of Rabbi Carmell and Rabbi Kaplan on this topic, in the context of resolving potential conflicts between Torah and science.

UPDATE: Commenter "rt" points out that Rav Moshe Feinstein gives a substantially similar (but more eloquent) interpretation in the introduction to Igros Moshe.  Here is an excerpt (translation mine):
But this is the correct reason, in my humble opinion, that the sages of later generations are both permitted and required to pasken, even though they would not have been considered fit for p'sak in generations of the sages of the Gemara.  Even though there is a definite possibility that they [the later sages] did not understand the law accurately as it would be understood in the heavens,  [the reason is that they can pasken] is that the "truth" with respect to P'sak is not in the heavens (לא בשמים היא), rather it is according to the understand of the sage after he has properly investigated to clarify the halacha using the Talmud and later poskim according to his abilities, with due sense of gravity and fear of God.  If it then appears to him that this is the correct ruling, this is is the truth for the purposes of P'sak (הוא האמת להוראה) and he is required to pasken.  Even if in reality,  from the point of view of the heavens his explanation is faulty, with respect to this we say that his words are also "words of a living God" (דברי אלקים חיים) since in his opinion, he paskened according to the proper explanation and there was no disproof to his opinion.  And he receives reward for his p'sak even though the his explanation is not true.  
Note: I’d like to thank Rabbi Slifkin for allowing me access to his excellent forum as an outlet for these posts. The views in this post are mine and may not represent the views of the blog owner. I encourage comments and will make every attempt to address any questions in the comments section, although your satisfaction with my answers (or my post) is certainly not guaranteed!

50 comments:

  1. "By way of analogy, the American legal system delegates power to decide legal guilt or innocence to a jury; however a jury decision cannot change the fact that a “guilty” defendant was actually framed for the crime." — This seems to me to be an inexact analogy, since paskening the time of tzeit hakochavim seems to me more analogous to legislating a certain legal standard for, say, a particular crime. There are probably lots of ways of making this philosophically exact, and depending on your philosophy of halakha, you'll choose different expressions, but the analogy you chose seems off to me because when you posken, you're poskening a norm (presumably not rendering an opinion on the metziut). Paskening what time tzeit is is one thing (establishing or clarifying a norm), ruling that a particular property once belonged to ploni's father is another (issuing a finding of fact—which might well have legal consequences) and "the fact of the matter" is yet a third. The only reason I raise the point is I think you're actually under-selling your argument; poskim/dayanim *do* issue findings of fact that could conceivably be falsified, it's just that some psak halakhah (like legislation in American law, if different in other ways) cannot be falsified by the metziut at all (though presumably it can be disproved by svara and contradictory mekorot).

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  2. The age of the Universe: 29^2*2^14 kiloyears.

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  3. You have explained the obvious, what does the opposing view hold?

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  4. might tie into the classic brisker birur(the methodology establishes a fact) versus nihug (the methodology establishes how to act, but we can't say with certainty what the facts are) differentiation in psak.

    however some will argue that the issue at hand does have current halachic application in determining the individual's halachic status as an apikores which then informs on other issues(e.g. testimony)
    KT
    Joel Rich

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  5. Thank you for this very informative post! My question is whether the same applies to emunah. Can we pasken such things? Am I entitled to believe in a shitas yachid or must I believe what has become accepted. For example, Marc Shapiro demonstrates that many of the Rambam's ikkurim were subject to dispute. It certainly seems like many people would hold that we do pasken like the Rambam in these areas?

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  6. Raffi, thank you for your thoughtful comment. I agree there can be a distinction between rulings that are purely "legal" (halachic) and those that implicate facts, at least in theory. I think that my quotation from Justice Jackson is a better analogy for the case that you describe.

    In fact, the time of Tzeis is a very interesting crossover case, in my opinion. First of all, you have R. Karo paskening in Shulchan Aruch in accordance with Rabbeinu Tam that Shabbos starts after sunset and that Shabbos candles can be lit after sunset. I'm not up on the history of this dispute, but I can only assume that people in R. Karo's communities followed this P'sak which means that they lit candles after sundown. Yet this would be considered a Shabbos violation today. On the other hand, you have communities in Israel that end Shabbos quite early, and probably would have been considered by R. Karo to be ending Shabbos when it was still Shabbos (and maybe even before Bein Hashmashos has started). So we have an example of P'sak being definitional, but not globally "definitive". We don't know what Moshe Rabbeinu did, and in some ways, it make no difference what he did. We follow our own best interpretation.

    In addition, we have a lot of writing about Tzeis among Rishonim and Acharonim that is not well founded factually or contradict factually. For example, the Minchas Cohen paskens like Rabbeinu Tam, but then observes that Shabbos ends in Amsterdam, based on the emergence of 3 stars, in something like 40 minutes after sunset (I don't have the source in front of me). He is puzzled by the fact that this less than 4 mil. He answers that this is possibly due to the low altitude of Amsterdam, but this explanation does not hold up in fact.

    Also, you have poskim (maybe Minchas Cohen included; I don't remember) who claim that Tzeis varies with length of the day, getting shorter in the winter time. In reality the stars "come out fastest" near the spring and fall equinoxes when day and night are equal and they come out slower near winter and summer solstices.

    Ironically, in this dispute, the Minchas Kohen claims that the Shitah of the Gaonim implies a Tzeis which is too early and doesn't match with the observable facts, while the Gra claims that Rabbeinu Tam's Tzeis is too late and doesn't match with the observable facts!

    So you have "factual" implications as well.

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  7. Aren't there some mandatory beliefs that don't fall into the legal/judicial world of psak?

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  8. You have explained the obvious, what does the opposing view hold?

    At the risk of trying your patience, I'll say that all good things come to those who wait. Also, what is obvious to some is ambiguous or false to others.

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  9. see the hakdama to igros moshe

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  10. might tie into the classic brisker birur(the methodology establishes a fact) versus nihug (the methodology establishes how to act, but we can't say with certainty what the facts are) differentiation in psak.

    Joel Rich, I'm not enough of a scholar to know of the "brisker birur". Can you give me a reference?

    An example that always comes to mind wrt to facts affecting interpretation is R. Ya'akov Kamenetsky reaction to the moon landing http://hirhurim.blogspot.com/2004/12/rabbis-and-traveling-to-moon.html.
    'These words of the Ramban are what carried me when we saw men descending from a space ship on a ladder onto the surface of the moon. I thought to myself: "What would the Rambam, who wrote that the moon has a spiritual form, answer now?" I thought that at that point Kabbalah defeated Philosophy, and comforted myself with the words of the Ramban'...We are forced to say that what the Rambam told us in these chapters [Hilkhos Yesodei Ha-Torah, chs. 1-4] is neither ma'aseh merkavah nor ma'aseh bereishis. Rather, he wrote those four chapters from his deep mind and from his knowledge of secular wisdom, i.e. not from the wisdom of Torah but only from Philosophy... and the Rambam only wrote these as an introduction to the Mishneh Torah while the main part of the book begins with chapter 5...'.

    The fact that he had to say that the words of the first 4 perakim of Mishneh Torah are different than the rest implies that he thought that the "real Mishnah Torah" could not be mistaken in the same way.

    Of course, I'm also puzzled as to what the moon landing had to do with it. We knew for a long time that the moon was a physical body.

    however some will argue that the issue at hand does have current halachic application in determining the individual's halachic status as an apikores which then informs on other issues(e.g. testimony)

    You are absolutely correct. I'll take up that argument in future posts.

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  11. Thank you for this very informative post! My question is whether the same applies to emunah. Can we pasken such things? Am I entitled to believe in a shitas yachid or must I believe what has become accepted. For example, Marc Shapiro demonstrates that many of the Rambam's ikkurim were subject to dispute. It certainly seems like many people would hold that we do pasken like the Rambam in these areas?

    This is a good question. I'll take that up in the posts that follow.

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  12. RAM said...
    Aren't there some mandatory beliefs that don't fall into the legal/judicial world of psak?


    I'll discuss mandatory beliefs later. But you could you either clarify your question or post a comment on my later posts if they don't answer your question?

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  13. Thank you for this very informative post!

    And also, thank you for the kind words!

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  14. Anonymous rt said...
    see the hakdama to igros moshe


    Dear "rt", this is an excellent reference. I updated my post to include an excerpt.

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  15. other poskim disagree with R' Moshe's rationale and understand that HKB"H gives the poseik hashrat schechina so that he gets "the" correct psak. However ISTM that this would not be an issue in the the "belief with no practical application" cases since that hashraat shecahin requires aiui an actual case in front of the poseik so that he get "the" right answer because it will be acted on.

    KT
    Joel Rich
    BTW I'm looking for a write up on the Brisker but you can hear it in the later part of this shiur iirc

    http://www.yutorah.org/lectures/lecture.cfm/803393/Rabbi_Yonason_Sacks/Special_Shiur_in_Mevaseret:_HaMotzee_Meichaveiro_Alav_Hara'aya
    Rabbi Yonason Sacks -Special Shiur in Mevaseret: HaMotzee Meichaveiro Alav Hara'aya

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  16. עי' שו"ת רלב"ח (רבי לוי אבן חביב) סימן ח' וז"ל "ובענין השאלה הג' ששאלת אם אמונת הגלגול הוא דבר הכרחי להאמין בו הכל, גם אם מותר לדרוש בו ברבים, וכלנו אנחנו חייבים לשמוע דברי אלו האחרונים ולהאמין האמונה הזאת בלי שום פקפוק כלל. האמנם לדרוש בה ברבים וכו'".
    וצ"ב מהו המחייב "ולהאמין האמונה הזאת בלי שום פקפוק כלל"? שמא הוא משום "דבר ה' בזה" כיון שאינו מאמין בדבר א' מן התורה, ע' יש"ש ב"ק פ"ד סימן ט'" עכ"ל. ולכא' ענין זה של "חיוב להאמין" איזה דבר בהשקפה הוא מחלוקת גדולה בין החכמים, ועי' בשו"ת חתם סופר יו"ד ח"ב סימן שנ"ו וז"ל "...אלא שאין משיח מלך, וגם בזה לית הלכתה כוותי', והאומר אין משיח וקים ליה כרבי הלל הרי הוא כופר בכלל התורה דכיילי אחרי הרבים להטות כיון שרבו עליו חכמי ישראל ואמרו דלא כוותי' שוב אין אדם ראוי להמשך אחריו כמו ע"ד משל במקומו של ר"א הי' כורתים עצים לעשות פחמין לעשות ברזל לצורך מילה, ואחר דאיפסקא הלכתה ע"פ רבי' מחכמי ישראל דלא כוותי' העושה כן בשבת בעדים והתראה סקול יסקל ולא מצי למימר קים לי' כר"א....". אבל עי' באגרות הראי"ה (ר' אברהם יצחק הכהן קוק זצ"ל) ח"א סימן ש"ב שכתב וז"ל "... ושיטתו היא שבדעות אין פסק הלכה כחד מ"ד, ואפשר לכ"א להכריע, אבל לא במעשים, שע"ז אנו מצווים בלא תסור. וזהוי שיטת חובות הלבבות בהקדמתו ד"ה האחד, שפרשת לא תסור כוללת רק דברים מעשיים, בין דם לדם, בין דין לדין, וזהו כפי שיטת הבבלי ס"פ הנחנקין דפ"ח, שמתפרשת שם כל הפרשה בדברים מעשיים, אבל הירושלמי, שם ה"ג דבר זו אגדה, ואגדה היא כולה מעניני דעות. ולפי"ז גם ע"ז נאמרה אזהרת ל"ת, ושייך בה פסק הלכה. ומזה נובע דעת הגאונים, ר"ש ורב האי, ולעומתם ר"ש בר חפני ור"ס ההולכים בעקבותיהם, ואלו ואלו דא"ח.... ושיטת הר"מ כרשב"ח והר"ס בעלי שיקול הדעת, דס"ל שאע"פ שאסור להכריע במעשה נגד חתימת התלמוד, מ"מ אפשר להכריע בעיון לבחור איזה דעת המסתברת יותר לכ"א לפי דעתו, אם גם היא מיוסדת ע"פ כוללת התורה ודעת חז"ל". עוד עיין שם בסימן ק"ג שכתב חידוש גדול וז"ל "אבל בסדר לימוד שבחוץ לארץ, שאינה ראויה לנבואה וממילא אין ענפי רוה"ק מתלכדים עם ההלכה ונתוחיה, הדעות הנן רק מה שאפשר להוציא מתוך השכל ההגיוני, ואין לעניני האגדות שייכות להלכה ולא שייך עליהם לא תסור, וזה החילוק טבע את חותם בין בבלי לירושלמי".
    יש לעיין בגמ' ערובין דף יג: שכתב "ת"ר שתי שנים ומחצה נחלקו ב"ש וב"ה, הללו אומרים נוח לו לאדם שלא נברא יותר משנברא, והללו אומרים נוח לו לאדם שנברא יותר משלא נברא, נמנו וגמרו נוח לו לאדם שלא נברא יותר משנברא". ולכא' משמע מלשון "נמנו וגמרו" ששייך פסק בזה. ע"ע רמב"ם בפירוש המשניות סנה' פ"י מ"ג וז"ל "כבר זכרנו לך כמה פעמים שכל מחלוקת שתהיה בין החכמים ואינה תלויה במעשה אלא קביעות סברא בלבד אין מקום לפסוק הלכה כאחד מהם". ע"ע בשדי חמד מערכת הה"א כלל ל"ב שחקר כן ("יש להסתפק אם נאמרו כללים גם כיי נחלקו במילי דאגדה בפי' הכתוב ולא בא מחלוקותם לענין דינא וכו'").
    שמעתי שיש להביא ראיה מגמ' סנהדרין דף קד: (וכ"ה בבמדבר רבה פרשה י"ד) וכן הוא שיש כח ביד בית דין לפסוק שאיזה בן אדם הוא בן עולם הבא או לאו, שהרי איתא שם שבקשו חז"ל למנות גם שלמה המלך עם אלו שאין להם חלק בעולם הבא, והגיד להם הקב"ה "וכי הבחירה בכם תלויה ולא בי לומר מי שיש לו חלק ומי אין לו חלק הלא בי הדבר תלוי", משמע שבשאר דברים שייך פסק דין של סנהדרין, אף שאין נוגע למעשי. והוא רצה לבאר שכל מה שמכריע חז"ל הוא הוא המציאות (וכן הוא בהלכה למעשה), וכמו שמצינו בירושלמי שאם נתעברו השנה בתוליה חוזרות עד סוף שנה ג', כמו כן בעניני השקפה כל מה שהכריעו חז"ל כך הוא נעשה המציאות. וכך מצינו שכתב בשיעורי דעת ח"א (דרכה של תורה פ"ז) וז"ל "... שהעמידה למנין וקביעת ההלכה ע"פ רבים קובעת את הטבע הבריאה ע"פ ההלכה שנקבעה ולא רק מציאות איסור והיתר, טומאה וטהרה נטבעין על פי קביעת ההלכה, אלא אפילו מצבי החיים לא ישתנו בשום אופן בזמן מן הזמנים לישתנגדו לקביעת הלכה זו, כי כמו שתליית המאורות וכו' כמו כן אור דעת התורה קובעת את המציאות לעד לעולם וכו'", עיי"ש.

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  17. Congratulations! That's quite an elegant thesis you got yourself there, Mr Ohsie. Elegant, eyebrow-raising, with a moderate splash, but far-ranging ripples if one may speculate. Long term forecast is high winds and turbulence; don't forget your Sou'wester!

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  18. However deciding whether the amulet is effective is significant to whether one can carry it on shabbos.

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  19. David Ohsie: Excellent post. With reference to the comment of Rav Yaakov Kamenetsky: First, it is clear that the entire first chapter of Yesodei ha-Torah and the first two paragraphs of Chapter 2 are meant by the Rambam as halakhah. Second, it is also clear from what the Rambam himself says that the rest of chapter two and all of chapters 3 and 4 of YT are NOT meant as halakhah. Thus the Rambam says at the end of YT 2:2: "And in accordance with these things [that is, that contemplating the cosmos is necessary in order to fulfill the commandment to love God] I will explain great principles from the deeds of the Master of the Universe, so as to serve as an introduction for the understanding person to love God." So the Rambam is, in effect, saying: "What I am about to explain now is NOT halakhah. Why, then, is it in the MT, a work of halakhah? Because it is connected with the fulfillment of a mitvah."

    I also agree with you that what is troubling with Rav Yaakov's view is that we did not need the moon landing to know that the moon, sun, other planets and stars were not comprised from a fifth refined and spiritual essence,

    Lawrence Kaplan

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  20. "I'll discuss mandatory beliefs later."

    There is no such thing as "mandatory beliefs". That is a christian idea. Halakha only truly governs ma'ase. see fara'id al-qulub.
    if you are going to bring m. sanhedrin chapter 10 into this, please note the verb being used.

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  21. might tie into the classic brisker birur(the methodology establishes a fact) versus nihug (the methodology establishes how to act, but we can't say with certainty what the facts are) differentiation in psak.

    I see that misread your words a bit in haste. I could still use a reference to the brisker birur vs. nihug distinction. Is it similar to this? http://elomdus.blogspot.com/2007/12/nimtza-echad-mehem-karov-o-pasul.html

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  22. Anonymous said...
    other poskim disagree with R' Moshe's rationale and understand that HKB"H gives the poseik hashrat schechina so that he gets "the" correct psak.


    Joel Rich, thank you for you thoughtful comments.

    1) Undoubtedly, there is a range of views, but I think that R. Moshe's view fits the Rambam's view of Machlokes in P'sak being in part a result of lesser ability in using the pricniples of derivatoin better than the opposing view. But I can't prove it.

    2) I have heard this idea with respect to widespread practice of the nation, but I don't see how it can be true of individual poskim, since they disagree. And of course, even the nation has changed practice over time (e.g. the Shabbos times that I mentioned in a comment). Since I've never seen a thorough explication of this theory, it is hard to for me to understand it thoroughly. References would be welcome.

    However ISTM that this would not be an issue in the the "belief with no practical application" cases since that hashraat shecahin requires aiui an actual case in front of the poseik so that he get "the" right answer because it will be acted on.

    Hmmm... I think that if you believe this, you might also believe that God would also assist in "important" matters of belief. Which is another reason to think that this is not the Rambam's position.

    BTW I'm looking for a write up on the Brisker but you can hear it in the later part of this shiur iirc

    http://www.yutorah.org/lectures/lecture.cfm/803393/Rabbi_Yonason_Sacks/Special_Shiur_in_Mevaseret:_HaMotzee_Meichaveiro_Alav_Hara'aya
    Rabbi Yonason Sacks -Special Shiur in Mevaseret: HaMotzee Meichaveiro Alav Hara'aya


    Thank you and please ignore my prior comment which crossed with yours.

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  23. Zvi M said...
    However deciding whether the amulet is effective is significant to whether one can carry it on shabbos.


    Yes, it might be (I'll explain below why I say "might"). And certainly an understanding of the facts go into P'sak all the time. But that doesn't mean that the P'sak can change the facts. At least, I don't believe that this is the Rambam's position. As Joel Rich mentioned, it is possible to simultaneously hold that there is some special Ruach Hakodesh around P'sak that eliminates any error and also hold like the Rambam that P'sak doesn't apply outside of practical cases, but I think that this is unlikely to be the Rambam's position.

    The reason I say that the effectiveness of an amulet "might be" relevant to the halacha is that the Shulchan Aruch famously rules that incantations for scorpion bites are permitted even on Shabbos even though they are ineffective (Y"D 179:6) (this is where the Gra gives his well-known response to the Rambam on "philosophy"). But this is a related, but different topic deserving its own discussion.

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  24. You broughtup "elu v'elu." Rashi Ksuvos 57a limits it to svara. With regard to svara, two opinions can be true. With regard to occurence (or in Rashi's case what the Rabbi had said) there is no possibility of elu ve'elu.

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  25. What does this mean with regards to theology? According to judaism (as described in derech haShem) the point of the mitzvot is to get closer to God. One would assume that the mitzvot have some intrinsic spiritual power. e.g. making kiddush spiritually moves your soul closer to God whilst eating pork would move it further away. For this to happen surely there has to be a fixed system with fixed cause and effect.
    So, if as you say, there is no absolute halachic truth, how can we still believe in the intrinsic power of mitzvot. If one rabbi says a and another says b, how can you say that both equal c?

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  26. rt and David Ohsie: The Hakdamh of Rav Moshe to Igros Moshe appears to be based on the Hakdamah of Rav Aryeh Leib ha-Kohen to the Ketzos ha-Hoshen, which, in turn, cites several passages from Derashot ha-Ran maintaining that we can only decide matters of halakhah using our human, finite, and fallible intellects, which decisions are binding though they may not correspond to the divine truth.

    Lawrence Kaplan

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  27. r'do,
    from a real talmid chacham that I asked for a source on birur vs. nihug: shev shmaysa 2:15 differentiating between ruba disa kaman and ruba dleisa Kaman

    btw the eidiim lkiyum vs birur is also great :-)
    KT

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  28. David Ohsie: Excellent post. With reference to the comment of Rav Yaakov Kamenetsky: First, it is clear that the entire first chapter of Yesodei ha-Torah and the first two paragraphs of Chapter 2 are meant by the Rambam as halakhah. Second, it is also clear from what the Rambam himself says that the rest of chapter two and all of chapters 3 and 4 of YT are NOT meant as halakhah. Thus the Rambam says at the end of YT 2:2: "And in accordance with these things [that is, that contemplating the cosmos is necessary in order to fulfill the commandment to love God] I will explain great principles from the deeds of the Master of the Universe, so as to serve as an introduction for the understanding person to love God." So the Rambam is, in effect, saying: "What I am about to explain now is NOT halakhah. Why, then, is it in the MT, a work of halakhah? Because it is connected with the fulfillment of a mitvah."

    Professor Kaplan, thank you for your comment.

    This makes a lot of sense and in a later post I mention the fact that MT is not all halacha p'sukah. I was loose in my language when I said "real Mishneh Torah". That does leave 1:7 where he references the unceasing motion of the outer sphere.

    ז וֵאלֹהֵינוּ בָּרוּךְ שְׁמוֹ, הוֹאִיל וְכוֹחוֹ אֵין לוֹ קֵץ וְאֵינוּ פּוֹסֵק, שֶׁהֲרֵי הַגַּלְגַּל סוֹבֵב תָּמִיד, אֵין כּוֹחוֹ כּוֹחַ גּוּף. וְהוֹאִיל וְאֵינוּ גּוּף, לֹא יֵארְעוּ מְאֹרְעוֹת הַגּוּפוֹת כְּדֵי שֶׁיְּהֶא נֶחְלָק וְנִפְרָד מֵאַחֵר; לְפִיכָּךְ אֵי אִפְשָׁר שֶׁיִּהְיֶה אֵלָא אֶחָד. וִידִיעַת דָּבָר זֶה--מִצְוַת עֲשֵׂה, שֶׁנֶּאֱמָר "ה' אֱלֹהֵינוּ, ה' אֶחָד" (דברים ו,ד).

    My point about the quotation from Rav Kamenetsky is that he deduced from the fact that there was apparent error in the Rambam that this part of Mishneh Torah was different from the rest (as you mention, this is correct in some ways). The other point of view would be the following:

    1) I can see from the content that this is (natural) philosophy and not halacha.

    2) I already knew that anything that references science is not "p'sak" per se and could disproved factually.

    3) Even areas of halacha can have mistakes in their scientific bases. The most obvious would be Halachos around insects said to be spontaneously generated. The Rambam is pretty explicit in basing some explanations on spontaneous generation. Even those straining to explain the Gemara as referring to something else have to agree that the Rambam himself was talking about spontaneous generation (well, I guess that they don't *have* to :).

    I don't think that Rav Kamenetsky would take that point of view.

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  29. Aaron said...
    "I'll discuss mandatory beliefs later."

    There is no such thing as "mandatory beliefs". That is a christian idea. Halakha only truly governs ma'ase. see fara'id al-qulub.
    if you are going to bring m. sanhedrin chapter 10 into this, please note the verb being used.


    This is not a debate that I want to enter. In these posts, I'm trying to discern the Rambam's position and he makes it pretty clear that he believes that it is a Mitzvah to believe or know certain things and not to believe other things:

    HILCHOT YESODEI HATORAH

    THE LAWS [WHICH ARE] THE FOUNDATIONS OF THE TORAH

    They contain ten mitzvot: six positive commandments and four negative commandments. They are:1

    1. To know that there is a God

    2. Not to consider the thought that there is another divinity aside from God

    ...

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  30. Anonymous said...

    עי' שו"ת רלב"ח (רבי לוי אבן חביב) סימן ח' וז"ל "ובענין השאלה הג' ששאלת אם אמונת הגלגול הוא דבר הכרחי להאמין בו הכל


    Dear Anonymous, is this your analysis or are you quoting someone? I'll repeat that I'm not enough of a scholar to discern the source even if it should be obvious.

    I would disagree with the premise that halacha with respect to belief in the spheres can be equated with belief in the eventual coming of the Mashiach, but I'll address that in a later post.

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  31. josh, the idea that there are spiritual forces that are invoked in doing mitzvot and aveirot in a causal manner is not a rational or elevated approach to religion. This may be shown in an analogy. When a child customarily follows the instructions of a parent, that tends to foster a close relationship; the actions of a rebellious child, on the other hand, tends to weaken the relationship. It's not the action per se that dictates the strength of the relationship, but the general attitude of child and parent. There is no need to invoke mysterious mystic forces. The prophets and sages have compared our relationship with GOD to a child with a father. That relationship is where we should look for guidance as to the dynamics of relating with the divine. The danger of a mystical approach is that it turns mitzvot into a magical act. Rational, if not also elevated, religion should be devoid of magic.

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  32. Joel Rich: Thanks for the references. I'll look at them "when I have time" :). About the source that I linked to, I think that the issue is orthogonal. Even "Eidei Birur" can be "wrong", as the Rambam states explicitly.

    Professor Kaplan: Thank you for the scholarship and participation. Again, I hope to have time to read those sources.

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  33. josh said...
    What does this mean with regards to theology? According to judaism (as described in derech haShem) the point of the mitzvot is to get closer to God. One would assume that the mitzvot have some intrinsic spiritual power. e.g. making kiddush spiritually moves your soul closer to God whilst eating pork would move it further away. For this to happen surely there has to be a fixed system with fixed cause and effect.
    So, if as you say, there is no absolute halachic truth, how can we still believe in the intrinsic power of mitzvot. If one rabbi says a and another says b, how can you say that both equal c?


    Josh,

    I would respond in three ways:

    1) That there are different places and communities with different Minhagim is self-evident, so the question can be asked whether or not one endorses the view of Rav Moshe on this.

    2) I believe the Rambam's view is somewhat different. His view of the Mitzvos is that they have broadly practical and understandable benefits in this world, although the reasons that he provides for some are controversial.

    I will show that all these and similar laws must have some bearing upon one of the following three things, viz., the regulation of our opinions, or the improvement of our social relations, which implies two things, the removal of injustice, and the teaching of good morals.(Moreh 3:28

    The Rambam says explicitly, however, that the details of each Mitzvah may not have an explanation and may simply be a test of man's obedience:

    [E]ach commandment has necessarily a cause, as far as its general character is concerned, and serves a certain object; but as regards its details we hold that it has no ulterior object. Thus killing animals for the purpose of obtaining good food is certainly useful, as we intend to show (below, ch. xlviii.); that, however, the killing should not be performed by neḥirah (poleaxing the animal), but by sheḥitah (cutting the neck), and by dividing the œsophagus and the windpipe in a certain place; these regulations and the like are nothing but tests for man's obedience.[...]
    The law that sacrifices should be brought is evidently of great use, as will be shown by us (infra, chap. xlvi.); but we cannot say why one offering should be a lamb, whilst another is a ram; and why a fixed number of them should be brought. Those who trouble themselves to find a cause for any of these detailed rules, are in my eyes void of sense: they do not remove any difficulties, but rather increase them. Those who believe that these detailed rules originate in a certain cause, are as far from the truth as those who assume that the whole law is useless. You must know that Divine Wisdom demanded it--or, if you prefer, say that circumstances made it necessary--that there should be parts [of His work] which have no certain object: and as regards the Law, it appears to be impossible that it should not include some matter of this kind. That it cannot be avoided may be seen from the following instance. You ask why must a lamb be sacrificed and not a ram? but the same question would be asked, why a ram had been commanded instead of a lamb, so long as one particular kind is required.[...] The repeated assertion of our Sages that there are reasons for all commandments, and the tradition that Solomon knew them, refer to the general purpose of the commandments, and not to the object of every detail. (Moreh 3:26)


    So for the Rambam, there is no question. The purpose of Tefillin is fulfilled by someone wearing Rashi's Tefillin, whether or not the original order of the Parshios was really that of Rabbeinu Tam.

    3) For those who take a different approach, I presume that they would say P'sak itself has a spiritual power to change the spiritual realm of cause and effect.

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  34. kollel nick said...
    You broughtup "elu v'elu." Rashi Ksuvos 57a limits it to svara. With regard to svara, two opinions can be true. With regard to occurence (or in Rashi's case what the Rabbi had said) there is no possibility of elu ve'elu.


    We starting to get far afield, but Rashi says that "Eilu v'eilu" would apply to "Din" and "Issur v'Heter" as long as the disputants are arguing based on reason (Sevara). If they are arguing based on "authority" (what they think some other Amora said), then that would be different.

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  35. "I'm not up on the history of this dispute, but I can only assume that people in R. Karo's communities followed this P'sak which means that they lit candles after sundown."

    Not everything written in the Shulchan Aruch was accepted as final psak even in his own town. I think that even the biggest proponent of the ShA, ROY, would admit that this psak was never accepted.

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  36. David-- Thanks for this full and thoughtful reply. a) I never knew that calculating tzeit was so interesting! b) I'm no longer sure about the categories I started with and need to give the matter more thought!

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  37. Anonymous said...

    עי' שו"ת רלב"ח (רבי לוי אבן חביב) סימן ח' וז"ל "ובענין השאלה הג' ששאלת אם אמונת הגלגול הוא דבר הכרחי להאמין בו הכל


    Dear Anonymous, is this your analysis or are you quoting someone? I'll repeat that I'm not enough of a scholar to discern the source even if it should be obvious.

    I would disagree with the premise that halacha with respect to belief in the spheres can be equated with belief in the eventual coming of the Mashiach, but I'll address that in a later post.


    Whoops, I blundered and read sphere for reincarnation :).

    In any case, my point would remain the same: I would disagree with the premise that halacha with respect to belief in reincarnation can be equated with belief in the eventual coming of the Mashiach, but I'll address that in a later post.

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  38. David Ohsie: Thank you for your kind words.

    My point was that a careful reading of the last part of Yesodei ha-Torah 2:2 indicates that what follows is not halakhah, which is why the Rmambam has to offer a rationale as to why he is including it. We didn't need any moon landing to figure that out.

    Another example of the Rambam including a non-halakhic section in the MT is Chapter 4 of Deot, consisting of medical advice. Again, the Rambam has to offer a special rationale for including this chapter, since medical advice is not halakhah.

    As for Yesodei ha-Torah 1:7: Both there and in 1:5 the Rambam speaks of the eternal movement of the outermost sphere. He includes this information in these paragraphs since, in his view, this movement constitutes proof of both the existence and the Oneness of God. Since for the Rambam it is mitzvah to KNOW that God exists and a mitzvah to KNOW that He is One, knowledge of these proofs is an integral part of the fulfillment of these mitzvot.

    Lawrence Kaplan

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  39. David Ohsie: I believe you missed the point of the lengthy citation brought by anonymous. The issue the citation raises is NOT belief in reincarnation. That is a side point. Rather what we have here is a very learned discussion of the issue at hand, namely, the Rambam's position that there is no hakhraah in matters of opinions. The author cites views both pro and con. Note that the exceptionally learned rabbinic author cites both Rav Kook's Iggerot Reiyah and and Shiurei Daas. This limits the field of candidates considerably. Rav Ovaday Yosef, perhaps?

    Lawrence Kaplan

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  40. Thank you for your reply.

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  41. James said...
    "I'm not up on the history of this dispute, but I can only assume that people in R. Karo's communities followed this P'sak which means that they lit candles after sundown."

    Not everything written in the Shulchan Aruch was accepted as final psak even in his own town. I think that even the biggest proponent of the ShA, ROY, would admit that this psak was never accepted.


    OK, I really don't know the history enough to say one way or the other. The Minchas Cohen indicates at least that he was paskening with respect to Bris Milah like Rabbeinu Tam.

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  42. Professor Kaplan, I think that we are in agreement, but if you have time, please see the 3rd and later posts in the series where this issue of non-halacha in the MT plays a larger role and comment if you feel that the analysis there is lacking, if you have time.

    To all: the comments are really enlightening to me and hopefully to the other readers, please keep them coming on the later posts as well.

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  43. Anonymous said...
    David Ohsie: I believe you missed the point of the lengthy citation brought by anonymous. The issue the citation raises is NOT belief in reincarnation. That is a side point. Rather what we have here is a very learned discussion of the issue at hand, namely, the Rambam's position that there is no hakhraah in matters of opinions. The author cites views both pro and con.
    Lawrence Kaplan


    Professor Kaplan, I agree that there is a lot to study in that citation, and I was just commenting on one element. However, I believe that the possible equation between the Chasam Sofer's comment on Rabbi Hillel and p'sak in belief general (including reincarnation) is not a slam dunk. Certainly the Chasam Sofer's position opens up the possibility for P'sak in some matters of belief, but belief in Mashiach is a well established principle of "required" belief by the Gemara itself, inasmuch as the Talmud itself quotes Rav Yosef’s response to Rabbi Hillel’s statement as “May God forgive him for saying this.” (cut and pasted this quote from R. Slifkin's Chakira article). I could easily imagine that Chasam Sofer would not apply the same principle to belief in reincarnation due to both to its controversial nature and because it is not an essential belief. I certainly could be wrong.

    Note that the exceptionally learned rabbinic author cites both Rav Kook's Iggerot Reiyah and and Shiurei Daas. This limits the field of candidates considerably. Rav Ovaday Yosef, perhaps?

    I'm out of my league here :).

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  44. David Ohsie: Rav Ovadya Yosef wa just a guess. But why doesn't anonymous who cut and pasted this very interesting and learned passage tell us where it is from instead of leaving us guessing in the dark?

    Lawrence Kaplan

    BTW, the letters in the robot test are almost impossible to make out.

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  45. I don't understand the cited view of Rav Moshe Sofer (Chatam Sofer) that the refutation of the view of the Amora, Rabbi Hillel constitutes a pesak in matters of belief. Rav Yosef merely pointed out to R' Hillel that his view was based on a totally erroneous assumption about messianic prophesies after king Hezekiah. It's not a matter of the view of an individual vs. an opposing majority. It is simply an error that even a Heder youth should not have made. Hence the refutation teaches nothing about pesak in a matter of hashkafa.

    The citations about how the decision of a court (bet din) determines reality is hardly a rational position. Moreover, I recall from T.B. Shabbat, I believe, that a bet din which ruled that Shabbat was over in a totally overcast day, and then the people left the court and saw that the sun had come out. Is it still shabbat or not. The gemara states that this wasn't a valid pesak of bet din, but merely an error.

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  46. Anonymous said...
    David Ohsie: Rav Ovadya Yosef wa just a guess. But why doesn't anonymous who cut and pasted this very interesting and learned passage tell us where it is from instead of leaving us guessing in the dark?


    I second your request! Unfortunately, the position of guest blogger does not come with subpoena power :).


    BTW, the letters in the robot test are almost impossible to make out.


    Off topic, but I have had the same problem as well. Unfortunately, I think that this is controlled by Google and affects many websites.

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  47. The citations about how the decision of a court (bet din) determines reality is hardly a rational position.

    Y. Aharon, which citations are you referring to?

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  48. הדברים הנכתבים בעילום שמם הם מאתי, אברהם נ. ביין - לייקווד

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  49. David, I was referring to the last paragraph that Anonymous cited from some anonymous text.

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  50. Is all this really necessary? The Torah is not a 'science book', and so attempts to find proofs or otherwise to support or debunk it scientifically are a waste of time. There is one principle thought that does apply given the Torah is a legal work for the most part. It does require evidence, and evidence IS provides by Ha Kadosh Barukh Hu....if people choose to read the Torah in detail. How much detail? How much evidence is sufficient in a court of law? Currently a bit of DNA can be used to convict, so look for very small evidence in Torah which is all that's required to prove there is no conflict with science or Science. If someone doesn't see the evidence, they ought not to make a legal case out of the argument :-)

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