Sunday, January 19, 2014

Guest Post: Evidence from the Rambam on P'sak [Can we "pasken" the age of the universe? (Part 3)]

Copyright 2014 by David Ohsie. All rights reserved

“... The Rambam states that he does not feel compelled to decide issues with no practical ramifications. In the Mishneh Torah, however [...] he often rules even on such matters”. -- Rabbi Moshe Meiselman, Torah, Chazal and Science, pg 618.

In our previous post, we described Rabbi Meiselman’s view of the Rambam on P’sak outside areas of practical halacha. In this post, we’ll examine the first element of Rabbi Meiselman’s thesis.

Rabbi Meiselman first argues that the Rambam actually issues p’sak all the time on matters that are not of practical import, and his principle is that he merely “will not necessarily give a definitive ruling” (TCS pg. 616).  In my humble opinion, this thesis is very difficult to maintain for three reasons: it contradicts the words of the Rambam; it contradicts the Rambam’s reasoning; the evidence adduced for this thesis does not actually provide any support.



Textual Evidence

First of all, we’ll examine the Rambam’s words. (For this analysis, we'll use the same translation of the Rambam into Hebrew that Rabbi Meiselman uses.  A better analysis would go back to the original Arabic).  As has been previously described, in at least five places, the Rambam describes an argument or dispute that has no practical impact and then offers his principle that P'sak does not apply outside of practical halacha:
1. He writes with regard to the argument in Sotah 3:5 “אין לומר שם הלכה כפלוני” or “it is not [fitting] to say there that the halacha follows so-and-so”. 
2. In Sanhedrin 10:3, he writes “אין מקום לפסוק כאחד מהם” or “there is no place to ‘pasken’ like one of them [the disputants]”. 
3. In commentary to Shevuos 1:4, he writes “לא נאמר בו הלכה כפלוני” or “it is not said in it [this dispute] the halacha follows so-and-so”. 
4. In Sefer Hamitzvos, negative commandment 233 he writes “לא אפסוק בו הלכה ולא אומר הלכה כפלוני” or “I will not ‘pasken’ in it [this dispute] a halacha and I will not say that it is said in it [this dispute] that the halacha is like so-and-so”. 
5. Finally, in Maamar Techiyas HaMeisim he writes “דבר שיש בו מחלוקת ולא יביא למעשה ,אפשר להכריע בו אחד משני מאמרים על חבירו” or “In any matter where there is an argument without practical implication, it is possible to decide according to either of the two positions over the other”.
It is clear from the first two quotations that the Rambam is saying that it is inappropriate or impossible to issue a p’sak outside of halachah.    The third quotation also indicates that P'sak in these areas is not possible, but this quotation is somewhat ambigous.  The fourth quotation could be interpreted either way.

It is important to note that in each these places, the Rambam explicitly refers back to his other statements in the Peirush HaMishnayos with phrases such as "I’ve already said to you once". In all cases, he writes that he is enunciating a single principle, so it is infeasible to maintain that each of the sources given represents a different principle.  Therefore, the first two quotations alone are enough to refute Rabbi Meiselman's thesis.

However, the final quotation (#5) deserves further consideration. At first glance, it seems to support Rabbi Meiselman’s contention that in non-halachic matters, it is possible, but not required to decide (להכריע) the matter; thus P’sak is optional.   However, this would be a clear misreading of the sentence.

In this instance, the Rambam is discussing the story of Yechezkel's revival of the dry bones (Yechezkel 37:1-14).  The Rambam is explaining that, while belief in resurrection of the dead is a mandatory belief in general, it is permissible to believe that this particular of episode of resurrection may be interpreted either literally or figuratively.  His purpose here is to indicate that it is permitted for each qualified individual “to decide” (להכריע) that the story of Yechezkel’s revival of the dry bones was either figurative or literal precisely because no P’sak is possible.

If the word להכריע (to decide) meant that it was possible to decide the issue definitively with a P'sak, but that the Rambam was merely refraining from making the decision, then the implication of the statement would be reversed.  Since it is possible to decide the issue using p'sak, one would need to remain neutral in his belief, since a decision by a Posek could render his or her belief heretical or at least "against the halacha".  This is the precisely the opposite of the Rambam's intention.

Thus, the word להכריע in quotation #5 refers to a decision to prefer one or the other interpretations (literal or figurative) outside the halachic process.  It is thus permitted for each qualified individual “to decide” (להכריע) that the story of Yechezkel’s revival of the dry bones was either figurative or literal precisely because no P’sak is possible.  As a result, the words of the Rambam in Maamar Techiyas HaMeisim don’t fit Rabbi Meiselman’s thesis.

Evidence from the Rambam’s reasoning

Aside from the Rambam’s basic language, his explanation of his principle also contradicts R. Meiselman’s thesis that he is merely “refraining” from issuing a P’sak.  In most of the places where he refers to this principle, he says that in any non-practical or theoretical matter P’sak is not appropriate, with no further explanation.  By itself, this strongly implies the theory that we described in the out first post: P’sak is a legal process that cannot “decide” the underlying non-halachic reality. Thus it is impossible to decide the issue through p'sak. Sometimes the majority is right, but sometimes the majority is incorrect. 

However, we can do better. In Shevous 1:4, the Rambam is even more explicit. There he says that we don’t give a p’sak about which sacrifices give atonement for which sins “because it [the dispute] is dependent on God”.  Here, he is clearly saying that we don’t decide the issue because the underlying decision as to which sacrifices give atonement to which sins is out of our hands.  He is clear in this case that P’sak is simply not possible.

Rabbi Meiselman’s evidence

Rabbi Meiselman adduces as evidence for his thesis that the Rambam’s principle is that “P’sak is optional” the following interesting fact: with regard to some of the arguments where he mentions in Peirush Hamishnayos or Sefer Hamitzvos that he will not give a P’sak deciding between two opinions, he does give what R. Meiselman calls “definitive rulings” in the Mishneh Torah deciding between the opinions. Since Mishneh Torah is a book of Halacha, Rabbi Meiselman asserts, we see that in fact the Rambam does give a P’sak. We see that, according to this reasoning, P’sak in cases not bearing on practical Halachah is possible.

There are some obvious problems with Rabbi Meiselman’s evidence. For one thing, just because something is recorded in the Mishneh Torah, doesn’t mean that it is P’sak. For example, the Rambam writes in Yesodei Hatorah 3:1:
The spheres are called the heavens, the firmament, the habitation, the skies. There are nine spheres. The closest sphere is the sphere of the moon. [...] The ninth sphere is the sphere which revolves each day from the east to the west. It surrounds and encompasses everything.
I think that is clear that the Rambam is recording contemporary scientific understanding (which he considers relevant to understanding Maaseh Breishis) and not p’sak. Many other halachos of the Mishneh Torah are of this nature.  So the mere fact that the Rambam records something in Mishneh Torah does not indicate that he is rendering a P'sak.  (Professor Lawrence Kaplan notes additional examples and inferences from the Rambam's language in the comments to the first post in the series).

The second issue is that it is unclear what would be meant by P’sak in these cases. For example, as Rabbi Meiselman notes, the Rambam records in Shegagot 11:9:
If he did not have knowledge neither at the outset, nor ultimately, the goats offered on the festivals and on Rosh Chodesh, bring about atonement.
This is in accordance with the opinion of Rabbi Yehuda in the Mishnah (Shevous 1:4). But, as we pointed out above, this in an example where the Rambam explicitly mentions that he will not rule because the matter is “dependent on God”. It is very difficult to imagine that the Rambam is rendering a P’sak for God on which sacrifices atone for which sins.

The obvious explanation in these cases is that the Rambam felt that the principle was important enough to record in Mishneh Torah.  However, in Mishneh Torah the Rambam rarely records a dispute, as opposed to the Peirush Hamishnayos which is a commentary on the Mishneh including all of its disputes.  Unless the Rambam was willing to simply omit the topic of a dispute altogether, he was forced to bring down some opinion in the dispute, perhaps the one that he felt was most likely.  For this reason, when the Rambam records a single opinion in Mishneh Torah, this does not automatically imply that he is giving a “definitive ruling”.

Other authorities and academic analysis

Commenter "Ephraim" points out that the Tosfos Yom Tov on Sotah 3:5 notices the phenomenon described by Rabbi Meiselman.  Despite the fact that the Rambam says that no P'sak is possible in this Mishnah, he appears to give a ruling in Mishneh Torah in accordance with Rebbi.  Tosfos Yom Tov offers two possible explanations:
1.  The Rambam holds that Rebbi is not coming to argue, but rather to explain the Tanna Kama.
2.  "He was not intending to pasken a halacha [in Mishneh Torah] since he already wrote in his Peirush HaMishnayos that when there is a dispute between the sages in a belief which has no practical impact that we don't say that the halacha is like so-and-so.  Rather he felt that Rebbi's reasoning was more compelling and therefore he quoted his words".
The Tosfos Yom Tov explicitly supports our contention here that the Rambam's principle is to be interpreted in a straightforward manner: P'sak is not possible in non-practical matters.  He also offers up our suggested resolution as a possibility: not everything in Mishneh Torah is P'sak.

Likewise, Prof. Marc Shapiro describes Prof. David Henshke in "Is There a 'Pesak' for Jewish Thought?", (published in Jewish Thought and Jewish Belief, Beer Sheva: Ben-Gurion University Press, 2012.) as maintaining that "the fact that Maimonides in the Mishneh Torah rules on disputes that in the Commentary on the Mishnah he had claimed were not to be decided halakhically shows that he changed his mind."  Prof. Shapiro responds that
[A]ll Maimonides is doing in the Mishneh Torah in these examples[...] is offering his opinion about non-halakhic matters.  He is not expressing any binding decision, for as he explained in his Commentary on the Mishnah, these sorts of matters are in God's hand alone.
Neither considers the resolution offered by Rabbi Meiselman that the Rambam's principle indicates that P'sak is merely optional.

Other Evidence

However, some of the most compelling evidence, in my opinion, against the notion that the Rambam rules definitively on non-halachic areas in the Mishneh Torah is cited by Rabbi Meiselman himself.  We’ll explore this evidence in the next post.

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

27 comments:

  1. The fact that Rambam elucidated thirteen principles of Judaism shows that he holds that there is pesak regarding beliefs. However, pesak regarding facts can perforce only refer to "legal facts". There are similar instances in secular law using words like "constructive" and "effective".

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  2. "The fact that Rambam elucidated thirteen principles of Judaism shows that he holds that there is pesak regarding beliefs."

    But the Rambam himself wrote that there's no psak in belief. Surely, a distinction should be made between עיקרי אמונה and other areas of belief. The whole structure of Torah Judaism rests on such fundamentals. The very concept of "psak"- that there can be a authoritative and definitive decision is entirely dependent on these fundamental principles. The 13 ikkarim are not the result of the Rambam's psak, they are the basis for it. How could "psak" be possible without the idea that Torah is from Heaven? You can't pasken ikkarim!

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  3. A crucial source in the understanding of Rambam's opinion on this matter is Abarbanel on parshas Vaeschanan. (P 91 in the new edition.) After a lengthy discussion of Mazal he quotes Rambam as instructing us that it is up to the individual to decide as he see fits in these matters even against conventional rules of pesak such as deciding like the majority opinion. (I saw this source many years ago and it is also mentioned in Dr Shapiro's article). In my opinion Rabbi Meiselman's understanding of Rambam is refuted from Abarbanel.

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  4. Lawrence Kaplan:

    This is why Sefer ha-Mitzvot, negative commandment 133, is so important. Here at the beginning the Rambam says a zar who eats terumah deserves death at the hands of heaven, while later on in this very paragraph he refers to his commentary on the Mishnah pointing to a debate on this issue and saying that he will NOT rule that the halakhah is like one of the views. So obviously his statement at the beginning was not meant as halakhah pesukah. In which case Prof. Henshke's argument from the MT that the Rambam changed his mind falls to the ground.




    המצווה הקל"ג
    האזהרה שהזהר כל זר מלאכל שום תרומה
    והוא אמרו: "וכל זר לא יאכל קדש" (שם כב, י)
    וכוונתו ב"קדש" זה - התרומה. וכן הביכורים, לפי שגם הם נקראו: תרומה, כמו שאבאר, ולזאת כוונתי באמרי שום תרומה והוא הדין לכל מועל בקודשים בזדון.

    ואם אכל תרומה בזדון חייב מיתה בידי שמים, ואינו חייב תוספת חמש כמו שנתבאר בפרק ו' ופרק ז' ממסכת תרומה. ובפרק ט' מסנהדרין מנו מחייבי מיתה בידי שמים ובכללם: זר שאכל תרומה, והביאו ראיה לכך מאמרו: "ומתו בו כי יחללהו" (שם, ט) ואחריו "וכל זר לא יאכל קדש".

    ובפרק ב' מביכורים אמרו:
    "התרומה והביכורים חייבים עליהם מיתה וחומש ואסורים לזרים";
    ורב חולק על כל המשניות האלה ואומר:
    זר שאכל תרומה - לוקה.
    וידוע שרב תנא הוא פליג. וכבר ביארנו בחיבורנו בפירוש המשנה, שכל מחלוקת שאינה מחייבת מחלקת למעשה אלא בסברא בלבד, לא אפסוק בה הלכה, ולא אמר: הלכה כפלוני; ולפיכך לא אמר כאן הלכה כרב או כסתם משנה, כיון שלדברי הכל לוקה.

    לפי שכל מחייב מיתה בידי שמים על אחד הלאווין - לוקה גם כן, כמו שביארנו בהקדמות מאמר זה.

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  5. In my opinion Rabbi Meiselman's understanding of Rambam is refuted from Abarbanel.

    Jay, thank you for your comment. While I think that Abarbanel is relevant, I don't think that he can "refute" Rabbi Meiselman, since Rabbi Meiselman is not bound by Abarbanel's interpretation. For this reason, I endeavor in the posts, as much as possible, to use the Rambam's own words to prove my points.

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  6. To the extent that Rabbi Meiselman cares about convention in the system of Talmudic debate, especially in a work that purports to uphold and defend the authority of Chazal, he should consider himself at odds with a Rishon regarding the interpretation of another Rishon. Where I come from that's a nono.

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  7. So what would you answer concerning the 13 principles?
    Doesn't the fact the rambam stated them complicate matters?

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  8. 1) You write: Neither considers the resolution offered by Rabbi Meiselman that the Rambam's principle indicates that P'sak is merely optional.
    However, as I mentioned previously, R' Meiselman's overall goal is served even better by Henschke's thesis, than by his own. Henschke believes that by the time he wrote MT, the Rambam believed that there is pesak in hashkafa. Please read Henschke's article to see all his arguments. I can email it to you if you want.

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  9. 2) You still have not explained R' Meiselman's reasoning for why there should be optional pesak in hashkafa.

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  10. Avi Keslinger said...
    The fact that Rambam elucidated thirteen principles of Judaism shows that he holds that there is pesak regarding beliefs. However, pesak regarding facts can perforce only refer to "legal facts". There are similar instances in secular law using words like "constructive" and "effective".


    Avi, thank you for your comment. This distinction is difficult because beliefs are beliefs about facts. Unless you are willing to entertain the notion that halacha requires you to believe in a false statement, p'sak over belief is p'sak over facts in many (all?) instances. Prof. Shapiro discusses this difficulty in his article.

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  11. Blogger Jay said...
    To the extent that Rabbi Meiselman cares about convention in the system of Talmudic debate, especially in a work that purports to uphold and defend the authority of Chazal, he should consider himself at odds with a Rishon regarding the interpretation of another Rishon. Where I come from that's a nono.


    1) Rabbi Meiselman does not consider Abarbanel to be one of the Chachmei HaMesorah. He bases himself on the Rav. So he says that he is to be accorded great respect, but that he is not an authority. See TCS pg. 656. I'm reporting Rabbi Meiselman's view; I'm not offering my own opinion.

    2) Basing myself on the Rambam that we are discussing, I would say that there is no such thing as "authority" in interpreting the Rambam :). Disputing a Rishon in his interpretation of a Rishon is not a "nono" IMHO.

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  12. josh said...
    So what would you answer concerning the 13 principles?
    Doesn't the fact the rambam stated them complicate matters?


    This is related to third element of Rabbi Meiselman's thesis (in my enumeration). I'll deal with that in a later post.

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  13. sanhedrin said...
    1) You write: Neither considers the resolution offered by Rabbi Meiselman that the Rambam's principle indicates that P'sak is merely optional.
    However, as I mentioned previously, R' Meiselman's overall goal is served even better by Henschke's thesis, than by his own. Henschke believes that by the time he wrote MT, the Rambam believed that there is pesak in hashkafa. Please read Henschke's article to see all his arguments. I can email it to you if you want.


    Yes, please, I would like to see the article. Please email it or your contact info to R. Slifkin, as I don't want to share my email address here.

    My point in (indirectly) quoting Prof. Henschke is that even though he thought that the Rambam "contradicted" himself, he saw no way to resolve the contradiction by parsing the Rambam's statements the way that Rabbi Meiselman does.

    As far as Prof. Henschke's underlying thesis, my unfair reaction, without reading his article, is that Prof. Shapiro is correct. Also, I don't think that R. Meiselman could accommodate Prof. Henschke since he is insistent in reading the Rambam as a whole and is very dismissive of attempts resolve such contradictions by resorting to the explanation that the Rambam changed his mind (see TCS page 473). Since my purpose here is to assess Rabbi Meiselman's position relative to that of Rabbi Carmell and Rabbi Kaplan, I think that Prof. Henschke's position is interesting, but not necessarily relevant.

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  14. Anonymous said...
    Lawrence Kaplan:

    This is why Sefer ha-Mitzvot, negative commandment 133, is so important.


    I'm starting to get my "Anonymous's" confused. Is this Prof. Kaplan or someone responding to him?

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  15. David Ohsie:

    It was my comment. Sorry for the confusion.

    Lawrence Kaplan

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  16. I don't see what the Ikkarim have anything to do with whether or not you can pasken. The Rambam's principle is very logical - halacha is a legal system; it tells you what to do but does not tell you what happened. Once there is a psak, that is what you have to do. But a psak doesn't affect reality. If you pasken that it's assur to drink unfiltered water, that doesn't create bugs in the water. It could very well be that there are no bugs in the water. But the halacha is that you can not drink it. It follows then, that something which is pure metzius, cannot be paskened. Now the thirteen ikkarim are all metzius. The metzius of G-d, the metzius of prophecy, the metzius of the messianic era. How can you pasken whether Hashem has a body? He either does or he doesn't, but the fact that Rabbis said that he does or doesn't, doesn't make it so. Now one could say that even though we can't pasken the metzius of the Ikkarim, we can paken that you have to believe them. But this is very dochek. How can you fully believe something to be true while at the same time acknowledging the very real possibility that it is not true?

    The simple resolution is that the Rambam is not pakening the Ikkarim. He is simply expressing the truth. It is possible for something to be empirically true, without resorting to the halachic system. Now the Rambam feels that these thirteen principles are absolute truth and anyone who doesn't believe in them is a heretic. Now another Rishon can come along and say that some of these principles are not true. In fact anyone off the street can say that the principles are not true, it's just that the Rambam thinks they are true based on his understanding of the Torah which is far superior to anyone off the street's understanding of Torah, hence it would be foolish to disagree with the Rambam. But if there is a machlokes rishonim, in which case both sides have the same high level of Torah understanding, then it does not seem possible to pasken that one is right and the other is wrong.

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  17. I'm very much enjoying the long-overdue discussion on this very important subject. I'm also very much enjoying the civil tone of the conversation.

    Just a few references and thoughts copied from my old notes on this topic:

    לשם שבו ואחלמה בספר הדע"ה ח"ב דרוש ד' ענף י"ט סימן ו:
    כי הרי מחויב כ"א לבטל שכלו ודעתו תמיד נגד כל מה שנטועה באמונת לב כל ישראל מכל הדורות שלפנינו בכל הנודע ומפורסם בתוך כלל ישראל. וכל המהרהר אחריהם גם באיזה פרט קטן וקל שבהם כאלו מהרהר אחר שכינה

    ע' מכות כג, ב "אמר רב אדא בר אהבה אמר רב הלכה כר' חנניה בן גמליאל {דאמר כל חייבי כריתות שלקו נפטרו כריתתם} אמר רב יוסף מאן סליק לעילא ואתא ואמר אמר ליה אביי אלא הא דאמר רבי יהושע בן לוי ... אלא קראי קא דרשינן ה"נ קראי קא דרשינן". אבל ע' ערוך לנר ומהר"ץ חיות
    וגליוני הש"ס שיש בזה נ"מ למעשה.

    - Sefer Maasei Hashem from R' Eliezer Ashkenazi (a contemporary of the Beis Yoseph) perek 31 states explicitly that there's no psak in hashkafa.

    The חיד"א in שו"ת חיים שאל, צח writes (regarding an אמורא that he says argues on the תנאים about the nature of ימות המשיח) that it’s widely accepted that when there’s no נ"מ להלכה a late אמורא can argue even on רוב תנאים, since when there’s no נ"מ להלכה there’s רשות for anyone to speak his own mind. וע"ע גופי הלכות לר' שלמה אלגזי, כללי האל"ף, לה. [I got this source from somewhere, but I didn't write down in my notes where that was. Marc Shapiro, maybe?]

    - The approach to psak in hashkafa depends partly (largely?) on why there's psak in halacha. My strong impression is that most chareidim understand the authority of psak to be because it's our best bet (though not necessarily infallible, depending on who you ask) at the truth. The following are a few references that seem to say we need to listen to psak in halacha even if it's wrong:

    שו"ת הרשב"א ב, שכב; דרשות הר"ן דרשה ה (נוסח ב); שם דרשה ז; וכן בחת"ס חו"מ בהשמטות סי' קצא ד"ה ועוד בפירושו לדברי הרמב"ן דברים יז, יח; וע"ע ספר החינוך מצוה תצו; וע"ע שו"ת תרומת הדשן, פסקים וכתבים, רמא; וע"ע מאורות הרמב"ם הערה 174 מש"כ ע"פ הרב יעקב ווינברג זצ"ל בענין מקור תוקפו של התלמוד.

    - If we are following the גדרי הפסק then, just as with הלכה, we should be allowed to follow our local פוסק even if he disagrees with the גדולי הדור.

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  18. 2) You still have not explained R' Meiselman's reasoning for why there should be optional pesak in hashkafa.

    I have explained Rav Meiselman's reasoning as to why he feels the Rambam was never saying P'sak is inappropriate outside halacha. It is because of the problem mentioned by Prof. Henschke. I have not discussed in detail yet his further exclusion of "Hashkafah" entirely from the Rambam's principle. That will come later.

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  19. I don't see what the Ikkarim have anything to do with whether or not you can pasken.

    There is one area where there is a true, if tenuous, connection: if you going to the extreme step of formally excluding someone from the community in some way, then you would have to pick one halachic definition of "Min" on which to base your "practical" decision. I discuss this a bit more later.

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  20. First Last: You are simply wrong. See Sefer Ha-Mizvot, shoresh 9. There the Rambam states black in white that there are mitzvoth with respect to Deot, beliefs. There is a mitzvah to believe in or better know that God exists. There is another mitzvah to believe in or rather know that He is one. One may not believe that God is a body, since to say that God has a body negates His oneness, etc. So there are obligatory beliefs and pesak with reference to those beliefs. This is a davar pashut.

    The issue here is that we are not talking about obligatory beliefs, just sevara. Is it obligatory to believe that a zar who eats Terumah dies at the hands of heaven? It is obligatory to believe in Tehiyyat ha-Meitim, but whether the dead Yehezkel saw being resurrected were actually resurrected or it was just a mashal in a vision is a matter of individual judgment, not obligatory belief. I think it is obvious that in Maamar Tehiyyat ha-Meitim when the Rambam says that each person is machria he means that each person decides for himself which view is more convincing. Since this is a matter of individual judgment how can one say, as does R. Meiselman, that the Rambam means that a person has the right to decide for others?!

    Also, by the way, the correct text in the Commentary on the Mishnah (CM) is, according to the Arabic, "I will not say here that the halakhah is like ploni." The point is that the Rambam says in the Intro to CM that one of the goals of CM is that whenever there is a debate he will say that the halakhah is like ploni. In the cases in question, however, since resolving the debate is not relevant for practice and we are not speaking about obligatory beliefs, it MAKES NO SENSE to say that the halakhah is like ploni.

    I do not understand how Dr. Henschke and R. Meiselman can say that in the MT the Rambam was paskening the halakhah that a zar who eats terumah willfully dies at the hands of heaven. Is he saying that one is obliged to believe this? Is he paskening for God? Moreover, I have already showed that Sefer ha-Mitzvot, negative commandment 133, disproves Dr. Henchke's contention that in the MT the Rambam changed his mind and retracted his view in the CM.

    Lawrence Kaplan

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  22. This is why Sefer ha-Mitzvot, negative commandment 133, is so important.

    Professor Kaplan, upon further reflection, I think that this is a very good point (for whatever my opinion is worth). Commandment 133 by itself, might be explained as a single idea expressed in a somewhat confused way. But when you combine it with MT, you can see that it is likely that the Rambam was quite careful in his writing Sefer Hamitzvos to distinguish his preferred version from a "p'sak" and then brought in MT his own preferred theory as described previously in Sefer Hamitzvos, since in MT he generally avoids citing disputes.

    (As a not very important side point, if you choose the "Name/URL" option when posting, you can type your name in without doing any kind of login. This lets people know up front that you are posting. Try it if you think it might be more convenient for you.)

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  23. Also, by the way, the correct text in the Commentary on the Mishnah (CM) is, according to the Arabic, "I will not say here that the halakhah is like ploni."

    Professor Kaplan, the commentary on which Mishnah are you referring to? I'm asking because part of my argument is based on the Hebrew translation where the Rambam seems to be more explicit and say things "אין מקום לפסוק כאחד מהם" and "אין לומר שם הלכה כפלוני". Are those mis-translations in your opinion?

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  24. First Last: You are simply wrong. See Sefer Ha-Mizvot, shoresh 9. There the Rambam states black in white that there are mitzvoth with respect to Deot, beliefs. There is a mitzvah to believe in or better know that God exists. There is another mitzvah to believe in or rather know that He is one. One may not believe that God is a body, since to say that God has a body negates His oneness, etc. So there are obligatory beliefs and pesak with reference to those beliefs. This is a davar pashut.

    Professor Kaplan, I think that "First Last" may be right in part. There is no question that the Rambam requires some beliefs as Mitzvos, as you point out. But assuming that a belief can only be required if it is true, and assuming that the elements of "P'sak" like "majority rule" cannot only reach a decision, but not the truth, then the natural consequence is that such "tools of P'sak" would be invalid in areas of required belief.

    The result is that if there was ever a dispute in areas of required belief, then the usual rules of P'sak could not be used to decide them and those Mitzvos would have different rules for resolving disputes, if any arose. Professor Shapiro quotes R. Aharon Lichtenstein as saying "I do not see why we must think that in the realm of philosophical thought there has been absolute consensus throughout the generations. Moreover, in the realm of Jewish thought, matters
    frequently remain unresolved, since there exists no mechanism similar to the one of pesika that guides practical halakhah.
    " I think this is consistent with part of what "First Last" is saying, although R. Lichtenstein is referring to Jewish thought in general.

    Professor Shapiro brings this issue as a hypothetical in his article. According to the notion that "dogmas" can be decided by P'sak (e.g. Chasam Sofer) "If the majority of Rabbis were to decide that one must believe that God has a body, this then would become a principle of faith and it would be forbidden to believe otherwise. If the following year the rabbis change their minds, it would then become a principle of faith to believe that God is incorporeal." Of course one could argue that God woudn't let this happen.

    So I think that one can say that certain beliefs are Mitzvos, but still not subject to P'sak with regard to dispute resolution.

    In my posts, I try to steer clear of this issue by showing that, according to the Rambam, the topics under consideration by Rabbis Aryeh Carmell and Aryeh Kaplan don't fall into this category anyhow.

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  25. Argghh...

    That should be 'assuming that the elements of "P'sak" like "majority rule" can only reach a decision, but not the truth,...'

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  26. Professor Kaplan:
    I am not denying that there are mitzvos with regadr to beliefs. Of course there are. All I am saying is that when the Rambam enumerates the required beliefs, it is not via the mechanism of psak, rather it is via the mechanism of expressing the truth. I.e. the Rambam in is analysis of the Torah, knows that it is empirically true that Hashem cannot have a body, and if you believe otherwise you are a heretic, and it's so pashut that even though the Gemara doesn't tell us this, you are still a heretic. But the Rambam did not pasken that Hashem has no body. The nafka mina is that if other rishonim dispute the Rambam, we have no way to pasken which side is right; we can only attempt to objectively seek out the truth, in which klalei hapsak won't help because klalei hapsak are not meant to tell us reality - they are meant to tell us halachic reality i.e what to do in a given situation.

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  27. David Ohsie: I do not have access right now to Rav Kapach's bi-lingual edition of the
    CM. But I do have access to his bi-lingual edition of the SHM. There in negative commandment, 133, the Arabic is very clear. The Rambam states "I will not issue a halakhic pesak and I will not say that the Halakhah is like Ploni."

    But on the main issue, the question seems to me more complicated than I had thought to begin with. I see now that when the Rambam in SHM states that when there is a debate in a matter of theory, the Arabic word he uses is :"roi." But he uses the same word in SHM, Shoresh 9, in speaking about obligatory beliefs. Again the word is "roi." My inclination is still to say that in the cases in the CM and negative commandment, 133, he is speaking about debates with regard to non-obligatory beliefs, and his point is that since however we resolve the debate it makes no difference for practice, there is no room for pesak. I wish, however, that he had been clearer.

    Lawrence Kaplan

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