Tuesday, January 21, 2014

Guest Post: More Evidence From the Rambam On P'sak [Can we "pasken" the age of the universe? (Part 4)]

Copyright 2014 by David Ohsie.  All rights reserved.

“The Rambam, more than any other Rishon, rendered specific decisions regarding hashkafah”. -- Rabbi Moshe Meiselman, Torah, Chazal and Science, pg 625.

In our last post, we discussed the evidence against the first two elements of Rabbi Meiselman’s thesis: that the Rambam considered P’sak to be optional on non-halachic matters, and in fact did rule definitively on many of these matters in Mishneh Torah. In this post, we provide additional evidence.

In my humble opinion, the most compelling evidence against Rabbi Meiselman’s thesis that the Rambam’s statements in the Mishneh Torah comprise definitive rulings on non-halachic matters is cited by Rabbi Meiselman in TCS on page 621:
The Mishnah in Brachos states that one may not pray that God have mercy upon us just as He had mercy upon the mother bird when He proclaimed the law of shiluach haken. [...] In the Mishneh Torah the Rambam follows the view that shiluach haken is a manifestation of Divine will, not mercy. In Moreh Nevuchim, by contrast, he states that the mitzvah is indeed an expression of mercy.
R. Meiselman is referring to the the following in Moreh 3:48:
The same reason applies to the law which enjoins that we should let the mother fly away when we take the young. The eggs over which the bird sits, and the young that are in need of their mother, are generally unfit for food, and when the mother is sent away she does not see the taking of her young ones, and does not feel any pain. In most cases, however, this commandment will cause man to leave the whole nest untouched, because [the young or the eggs], which he is allowed to take, are, as a rule, unfit for food. If the Law provides that such grief should not be caused to cattle or birch, how much more careful must we be that we should not cause grief to our fellowmen. When in the Talmud (Ber. p. 33b) those are blamed who use in their prayer the phrase," Thy mercy extendeth to young birds," it is the expression of the one of the two opinions mentioned by us, namely, that the precepts of the Law have no other reason but the Divine will. We follow the other opinion. 
As Rabbi Meiselman notes, the Rambam brings down this halacha in Mishneh Torah Tefilah 9:7:
One who says in his supplicatory prayers: "May He who showed mercy on a bird's nest prohibiting the taking of the mother together with the chicks, or the slaughter of an animal and its calf on the same day, also show mercy on us," or [makes other] similar statements should be silenced, because these mitzvot are God's decrees and not [expressions] of mercy. Were they [expressions] of mercy, He would not permit us to slaughter at all.
Now, let’s examine this apparent contradiction according to Rabbi Meiselman’s thesis. According to Rabbi Meiselman, the Rambam “definitively rules” in Mishneh Torah that the Mitzvah of Shiluach Haken is not rooted in God’s mercy, but is rather merely an expression of divine will and that therefore one must not invoke this Mitzvah in asking for mercy from God in prayer.  Furthermore, in Moreh Nevuchim, the Rambam equates this Halacha with the position of those who maintain that Mitzvos in general have no reason but the Divine will.  Since the Rambam makes this “definitive ruling” (according to Rabbi Meiselman), it follows that he must hold that this is a mandated belief and that those who maintain that there are reasons for Mitzvos are in error and possibly sinning in their belief.

But this is impossible! As Rabbi Meiselman notes, the Rambam himself takes the position that all Mitzvos have a rational basis Moreh 3:26:
As Theologians are divided on the question whether the actions of God are the result of His wisdom, or only of His will without being intended for any purpose whatever, so they are also divided as regards the object of the commandments which God gave us. Some of them hold that the commandments have no object at all; and are only dictated by the will of God. Others are of opinion that all commandments and prohibitions are dictated by His wisdom and serve a certain aim; consequently there is a reason for each one of the precepts: they are enjoined because they are useful. All of us, the common people as well as the scholars, believe that there is a reason for every precept, although there are commandments the reason of which is unknown to us, and in which the ways of God's wisdom are incomprehensible. [Emphasis mine.]
If Rabbi Meiselman’s thesis is correct, and the halacha in the Mishneh Torah is a “definitive ruling”, then the Rambam should say in the Moreh Nevuchim that it is prohibited to believe that the Mitzvos are anything other than divine will.

In my humble opinion, the true explanation is clear. P’sak applies to practical halacha, and the Rambam rules, in accordance with the Mishneh, that it is not appropriate to invoke Shiluach Haken in asking for mercy from God in prayer as a practical matter. However, this does not compel the Rambam to agree with the principle underlying this Halacha. He is free to use his own reason and interpretation based on Pesukim and Chazal to decide whether or not the all the Mitzvos have underlying reasons.

Another example of the same phenomenon can be be cited. In Breishis 18:3, we have the following:
וַיֹּאמַר: אֲדֹנָי, אִם-נָא מָצָאתִי חֵן בְּעֵינֶיךָ--אַל-נָא תַעֲבֹר, מֵעַל עַבְדֶּךָ.
And he said, "My lords, if only I have found favor in your eyes, please do not pass on from beside your servant.”
The plain meaning of the pasuk is that the word אֲדֹנָי refers, not to God, but to the visiting angels. However, Rashi gives another interpretation based on Bereishis Rabba:
Another explanation: It (אֲדֹנָי) is holy, and he was telling the Holy One, blessed be He, to wait for him until he would run and bring in the wayfarers.
In Mishneh Torah, the Rambam rules in accordance with this midrash that word אֲדֹנָי in the pasuk refers to God and thus is a Shem Kodesh: (Yesodei Hatorah 6:9)
כל השמות האמורים באברהם קדש אף זה שנאמר אדני אם נא מצאתי חן הרי הוא קדש
All the [possible] names of God mentioned with regard to Avraham are Kodesh [refer to God] including [Breishis 18:3]
However in the Moreh 1:61, he explains that the word is “Chol” and refers to angels and not to God:
"An angel is also addressed as "Adonay"; e.g., "Adonay (My lord), pass not away, I pray thee"
So on the one hand, the halacha is that the word אֲדֹנָי in Breishis 18:3 represents God’s name and must be written with that intent in order to make the Sefer Torah kosher. On the other hand, that P’sak does not bind his interpretation of the Pasuk, which he maintains actually refers to the angels visiting Avraham. The P’sak is binding for practical matters, but in matters of theory, the Rambam is free to interpret the Pasuk as he sees fit.

[In the interests of full disclosure, Professor Marc Shapiro opined in a personal communication that the while the first example in this post is sensible, that the second may simply be an example of the Rambam changing his mind, as Chazal already dispute the meaning of the this Pasuk.   However, even if this is correct, we are left with the result that while the Rambam's ruling in Mishneh Torah was not the final word.  Even if the Rambam had not changed his mind, others would not be bound by his ruling in Mishneh Torah for interpretation of the Pasuk, nor are we necessarily bound in our interpretation by the halachos of writing a Sefer Torah as practiced today.]

At this point, we’ve see that that it appears that Rabbi Meiselman’s position that the Rambam ruled definitively in Mishneh Torah on non-halachic disputes is not well supported by the evidence.  In the next post, we’ll examine the next element Rabbi Meiselman’s thesis: that the Rambam excluded “Hashkafah” altogether from his principle of non-P’sak.

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.

46 comments:

  1. Surely R' Meiselman would acknowledge that rabbonim can change their mind, as in your second example and many more besides. So does this mean that every P'sak is only tentative during its author's lifetime but is sealed by their death? That seems an odd and arbitrary position: some rabbonim are, rachmana litzlan, struck down suddenly. Who is to say whether they would have later changed their position?

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  2. Joe in Australia said...
    Surely R' Meiselman would acknowledge that rabbonim can change their mind, as in your second example and many more besides. So does this mean that every P'sak is only tentative during its author's lifetime but is sealed by their death? That seems an odd and arbitrary position: some rabbonim are, rachmana litzlan, struck down suddenly. Who is to say whether they would have later changed their position?


    You make a good point. I assume that Rabbi Meiselman could say that the authority is overruled by other authorities. But to even in the lifetime of a single Posek, there will be communities with different poskim. I would certainly be odd to say that one community is required to believe one thing while another community is required to believe another.

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  3. one phenomenon.
    plural phenomena

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  4. Central to R' Meiselman's thesis, as I understand it, is the differentiation between what he calls "hashkafa" issues and other matters that aren't halacha but aren't "hashkafa". As far as I could tell R' Meiselman never clearly defines what "hashkafa" is. On the one hand, he dismisses all the references in Peirush Hamishnayos as not hashkafa. On the other hand, he brings a proof from "noach lo l'adam shelo nivrah" (Eiruvin 13b) that there's psak in hashkafa. So apparently that is hashkafa.

    My impression is that he's making some sort of fuzzy distinction between "fundamental" vs. "non-fundamental" beliefs. The problem with such a fuzzy definition is that it could mean almost anything. So if you bring a proof that we see there's no psak in topic x, he could just argue that's not fundamental for whatever reason.

    He could also perhaps distinguish between matters that have been accepted by a clear plurality of the "baalei mesorah" (another fuzzy term) and those that have not. This would mean that if something was debated at one time in history but later became the normal belief, then only later was did it become "accepted" and therefore dogma.

    Another point: The part in Ma'amar Techiyas HaMeisim about the techiyas hameisim of Yechezkel he says is historical fact, which he seems to equate with hashkafa for some reason, but he says at least there's no practical issue there. If he's equating historical fact with hashkafa then is he backtracking on his position that we always need to pasken on hashkafa?

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  5. dikduk said...
    one phenomenon.
    plural phenomena


    Thanks, corrected.

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  6. (I know you haven't gotten to this part of the discussion yet, but I'm jumping the gun a little. I'm working out these thoughts as I write them, and if I wait until you get to this part I'm afraid I'll forget my train of thought.)

    R' Meiselman holds that many of the "non-allowed" hashkafos under discussion are actually kefira / apikorsus. It seems to me that if there's psak in hashkafa (at least with regards to apikorsus) in the sense that at one point it was an ok belief but not anymore, then that's completely incompatible with saying nebach an apikores is still an apikores. Saying nebach an apikores is still an apikores is based (the way I've always understood it, at least) on the assumption that there are certain fundamental facts about Hashem / the Torah that just *are*, and if someone doesn't know those facts then by definition they're an apikores. In other words, the definition of apikores is based on certain constant facts. Saying that there's psak in hashkafa, by contrast, assumes that the definition of apikores is not based on constants but rather on what's been "paskened".

    If my reasoning is correct, then mima nafshoch R' Slifkin can't be an apikores - if you hold there's no psak in hashkafa he's certainly off the hook, and if you hold there is psak in hashkafa but he's basing himself on his own reasoning which, even if he's wrong, only labels him as a "nebach apikores" which isn't an apikores.

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  7. Central to R' Meiselman's thesis, as I understand it, is the differentiation between what he calls "hashkafa" issues and other matters that aren't halacha but aren't "hashkafa". As far as I could tell R' Meiselman never clearly defines what "hashkafa" is.

    "iarwain", I think that you are correct. I discuss this issue specifically in the remaining posts. Until now, I've only been dealing with Rav Meiselman's contention that it is a misinterpretation of the Rambam altogether to say that you can't Pasken theoretical questions even outside the sphere of "Hashkafah" and his contention that the Rambam paskened theoretical "non-Haskafic" questions.

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  8. Thoughts to ponder.
    Can one pasken that you have to beleive the truth?

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  9. See R Yosef Kafah in Moreh 1:61 note 11

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  10. iarwain said...
    (I know you haven't gotten to this part of the discussion yet, but I'm jumping the gun a little. I'm working out these thoughts as I write them, and if I wait until you get to this part I'm afraid I'll forget my train of thought.)


    No worries. If you have good ideas, I'll simply appropriate them (with credit) as I have been doing :).

    More seriously, I am revising my nexts posts a bit, in part based on the comments that I've seen so far. The area of P'sak in required beliefs is difficult, as Prof. Shapiro says in his paper on the topic "The issue this paper has discussed is quite complicated, and certainly
    requires further examination."

    If my reasoning is correct, then mima nafshoch R' Slifkin can't be an apikores - if you hold there's no psak in hashkafa he's certainly off the hook, and if you hold there is psak in hashkafa but he's basing himself on his own reasoning which, even if he's wrong, only labels him as a "nebach apikores" which isn't an apikores.

    I wonder if R. Slifkin would appreciate such a defense. He is not an apikores, but merely a "nebuch" :).

    Seriously, you are making a good point. In fact, Rabbi Meiselman would probably agree in part. He is not calling R. Kaplan, R. Carmell, or R. Sacks apikorsim. If you look at pages 631 and 632 you see some distinction that he makes there, although he does say that a non-apikores can lose his Chelek, so I'm not sure that is much comfort.

    So, on second thought, your question is even better. According to Rav Meiselman, the person should be considered halachically a kofer, but in terms of Olam Habah, who knows? He says the reverse at least in the case on page 631/632.

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  11. kollel nick said...
    See R Yosef Kafah in Moreh 1:61 note 11


    Here is what he says:

    ואין סתירה ממה שפסק בהלכות יסודי התורה פ"ו הל' ט אף זה שנאמר אדני אם מצאתי, הן הרי הוא קודש, כי שם פסק מספקא לחומרא, אם הוא קודש הרי קדשו, ואם חול הוא הרי שם חול שקדשו אין בכך כלום

    He says that he was doubtful as to whether it was Kodesh or not, so he went "L'Chumrah" with respect to the halachah. This certainly possible, but usually the Rishonim make up their minds and don't pasken from Safek. He could simply have had a different opinion.

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  12. David, the different approaches to 'shiluach hakan' in the Rambam aren't really contradictions. I would explain them somewhat differently from your approach. In Mishne Torah, he rules according to the Bavli that a 'shaliach tzibbur' is not allowed to interject his explanation for the mitzva in his tefila. He is supposed to be acting on behalf of the congregation. His interpretation need not be that held by others, and he is not allowed to impose his private interpretation on the community. Besides, it may not be the primary reason for the mitzva, i.e., he may be viewed as having uttered a falsehood. On the other hand, the Rambam in his Moreh does allude to mercy as a reason for the mitzva. Of course, it's not the only possible reason. Another is that seizing the mother who is attempting to defend her nest runs counter to and takes advantage of the divine plan which implanted the drive to defend her young in the mother. His action is then an affront to that divinely sanctioned or implanted parental drive. That's why someone who obeys the prohibition is given the same reward as someone who honors his parents.

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  13. In my humble opinion, the true explanation is clear. P’sak applies to practical halacha, and the Rambam rules, in accordance with the Mishneh, that it is not appropriate to invoke Shiluach Haken in asking for mercy from God in prayer as a practical matter.

    Your solution does not reflect the text of Mishna Torah. If all the Rambam was doing was state the practical halacha without entering the hashkafic realm, all he should have stated was that one cannot invoke Shiluach Haken in asking for mercy.
    But the Rambam does NOT stop at stating the practical halacha. He proceeds to rule between the two competing hashkafic reasons behind it.
    The contradiction with the Moreh over a hashkafic idea is real and you evade it by ignoring the specific reason for the practical halacha given in Mishna Torah.

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  14. Y. Aharon said...
    David, the different approaches to 'shiluach hakan' in the Rambam aren't really contradictions


    Y. Aharon, Thanks you for your comment. I can imagine many different ways to resolve the contradiction and yours is an interesting approach.

    But the Rambam himself doesn't take that approach. He maintains that the author of the Mishnah is expressing a contradictory opinion to his own:

    When in the Talmud (Ber. p. 33b) those are blamed who use in their prayer the phrase," Thy mercy extendeth to young birds," it is the expression of the one of the two opinions mentioned by us, namely, that the precepts of the Law have no other reason but the Divine will. We follow the other opinion.

    This is in fact the halacha, and yet he takes a different approach in a a non-halachic work. This is permitted because there is no "P'sak" in such areas.

    I would say that I'm not recommending that people go around willy nilly imitating the Rambam's approach in Moreh Nevuchim. It takes a Rav Moshe Feinstein to permit the divorcees of the Reform and Conservative marriages without a Get, and it takes a Rambam to give the kinds of reasons he did for various Mitzvos. One could say that in areas of non-halacha "Rambam Tana Hu U'Palig" (this is an analogy only!).

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  15. Y. Aharon said...
    David, the different approaches to 'shiluach hakan' in the Rambam aren't really contradictions


    BTW, the אדני יד החזקה has a substantially similar explanation to answer the question of the Tosafos in Megillah 25a.

    http://www.hebrewbooks.org/rambam.aspx?mfid=1115&rid=635

    יעיין תוס' במגילה כ"ה שהקשו ממה שיסד הקליר ויש מד"ר כי תצא, למה התינוק נימול לשמונה שנתן הקב"ה רחמים עליו להמתין לו עד שיהא בו כח, וכשם שרחמיו על האדם כך רחמיו על הבהמה, מנין שנאמר מיום השמיני והלאה, ולא עוד אלא שאמר הקב"ה אותו ואת בנו לא תשחטו ביום אחד, ע"כ. וסבירא להו להמפרשים דאמנם לפרושי טעמא דקרא מותר לומר הכי אבל בדרך תחנונים ותפלה אל הקב"ה אסור, דהרי זה כמחליט שהדבר כן הוא

    As I mentioned, though, the Rambam himself is explicitly disagreeing with the Gemara in its theory.

    I'd also say that the Rambam is actually the easiest way to learn the Gemara. The language is מפני שעושה מדותיו של הקב״ה רהמים ואינן אלא גזירות. This doesn't sound like impudence or possible error in his explanation of the Mitzvah but a misinterpretation of the purpose of mitzvos altogether. In fact the Gemara's very question implies that the the Stam is puzzled as to what the Shatz did wrong, since the statement seems true. The other elements of the Mishnah are easier for the Stam to understand.

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  16. Here is another of the Peirushim on the Rambam making the point that I made: http://www.hebrewbooks.org/rambam.aspx?mfid=13777&rid=635

    מי שאמר בתחנונים מי שריחם על קן צפור וכו' מפני שמצות אלו גזירת הכתוב הן ואינן רחמים וכו'. כאן נטה להלכה אחר דעת מי שאמר שמדותיו גזירות ובס' מורה נבוכים ח"ג פ' מ"ח נטה אחר דעת מי שאמר שמטיל קנאה אבל מדותיו רחמים ועי"ש בפירוש הרב שם טוב ז"ל והנראה לי כפשוטו דכיון דבכמה מקומות אמרינן בש"ס גזירת הכתוב היא וקי"ל שלא נתגלו טעמי תורה לפיכך להלכה פסק כמאן דאמר שמדותיו גזירות והתם בספר המורה נתן דעתו למצוא לכל המצות טעם ונתן טעם גם לזו וכמ"ש שם וז"ל ואנחנו נמשכנו אחר הדעת השני ע"כ פי' דבאותו ספר נמשך לתת טעם לכל המצות ואה"נ דלהלכה תפסינן דמדותיו גזירות ועי"ש באותו חלק פ' כ"ו באורך וס"ל לרבינו דלדרוש שרי וכמו שעשה הוא וכהמדרש רבה פרשת תצא וכהתרגום יונתן בפרשיות אמור ותצא עי"ש ולמעבד עובדא לא נהגינן כן נ"ל ברור. ועיין מה שהאריך בס' מעשה רוקח ועיין בתוס' יו"ט (פ"ט) [פ"ה] דברכות וק"ל.

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  17. Tos Yom Tov is making your point. He says that according to Rashi and Rambam the halacha only applies to Tefilla.

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  18. In my humble opinion, the true explanation is clear. P’sak applies to practical halacha, and the Rambam rules, in accordance with the Mishneh, that it is not appropriate to invoke Shiluach Haken in asking for mercy from God in prayer as a practical matter.

    Your solution does not reflect the text of Mishna Torah. If all the Rambam was doing was state the practical halacha without entering the hashkafic realm, all he should have stated was that one cannot invoke Shiluach Haken in asking for mercy. But the Rambam does NOT stop at stating the practical halacha. He proceeds to rule between the two competing hashkafic reasons behind it.
    The contradiction with the Moreh over a hashkafic idea is real and you evade it by ignoring the specific reason for the practical halacha given in Mishna Torah


    Rabbi Kornreich, thank you for your considered comment. What you point out in the Mishneh Torah favors my thesis: the two positions are, in the Rambam's opinion, completely contradictory, as the Rambam himself explains in the Moreh.

    In MT, the Rambam is giving a full explanation for the reason behind the halacha, perhaps because the halacha is at first sight puzzling, as the Gemara indicates. His explanation is going to contradict his opinion because, as he writes in the Moreh, the halacha is in accordance with a position with which he disagrees. While the Rambam is bound by P'sak in the Halacha, he is not bound by the non-halachic aspects.

    To state it more simply, if the Rambam disagrees with the reason behind the halacha, then he is going to disagree with whatever reason he gives for the halacha in MT. In this, I could praise the Rambam as an Ish Emes, if my praise had any value.

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  19. there is a relevant thread going on on The Yeshiva World News Coffee Room right now, which discusses the points made in Rabbi Oshie's posts.
    http://www.theyeshivaworld.com/coffeeroom/topic/continuation-of-discussion-on-r-slifkin-and-weiss-from-manchester-eiruv-thread#post-508325

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  20. "Some of them hold that the commandments have no object at all; and are only dictated by the win of God" -- Do you mean "will", or even perhaps "whim"?

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  21. there is a relevant thread going on on The Yeshiva World News Coffee Room right now, which discusses the points made in Rabbi Oshie's posts

    Just to avoid any possible confusion, I don't have Semichah nor the title of Rabbi nor any other position beyond "member" of the Jewish community.

    Not to disparage others, but I peeked over to the site that you linked and I think that I can safely say that the level of discourse is a bit more elevated here, thanks to the informed commenters and to Rabbi Slifkin.

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  22. If all the Rambam was doing was state the practical halacha without entering the hashkafic realm, all he should have stated was that one cannot invoke Shiluach Haken in asking for mercy. But the Rambam does NOT stop at stating the practical halacha. He proceeds to rule between the two competing hashkafic reasons behind it.
    The contradiction with the Moreh over a hashkafic idea is real and you evade it by ignoring the specific reason for the practical halacha given in Mishna Torah


    One other point. If he was entering the "hashkafic realm", that would support my argument, as that would be a stronger indication that the non-halachic parts are not binding.

    However, he may have brought the reason down for a practical purpose. The Rambam goes with the version of the Gemara in Megilla which goes farther than the Mishnah. The Mishnah mentions the mitzvah of Shiluach Haken, but the Gemara's example, in one version in includes "Oso v'es B'no" as another example. Thus there is a general principle here being elucidated.

    Thus it is possible that the Rambam is bringing down the reason so that the parameters of the Halacha can be understood. Any prayer based on the reason for a Mitzvah would be suspect.

    Since the Rambam also brings down additional explanation שאילו היו מפני רחמים לא היה מתיר לנו שחיטה כל עיקר, it is possible that it is purely "hashkafah", but I can't rule out that it was "practical" to bound the halacha.

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  23. Dikduk's friend said...
    "Some of them hold that the commandments have no object at all; and are only dictated by the win of God" -- Do you mean "will", or even perhaps "whim"?


    Thank you. The online source that I copy/pasted from has what must be an OCR error. I updated to "will" which is what my paper copy has. I emailed the website about the error, so your copy editing will hopefully end up as a small contribution to mankind.

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  24. "His explanation is going to contradict his opinion because, as he writes in the Moreh, the halacha is in accordance with a position with which he disagrees."

    I don't understand.
    This halacha has two different possible reasons given for it in the gemara. If the Rambam personally disagreed with one of them (identified in the Moreh), why couldn't he simply state the other one in Mishna Torah?

    Are you perhaps saying the the Rambam's position in the Moreh--that Hashem definitely has merciful reasons behind these mitzvos-- squarely contradicts this halacha about prayer no matter how it is explained by the gemara?

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  25. My resolution to the contradiction is posted here:

    http://slifkinchallenge.blogspot.co.il/2014/01/when-is-contradiction-not-contradiction.html

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  26. David Ohsie, I erred in using a sevara to understand the Rambam while not paying attention to the text of MT. While I believe that my sevara has merit, it may not be that of the Rambam or his source. It is interesting, however, that he includes the issur of oto v'et b'no in the halacha - something not raised in the relevant gemara (Ber. 33b) - although it is present in one girsa in the analogous gemara in Meg. 25a. Now, the prohibition of sacraficing an animal and its offspring on the same day is not a matter of compassion since the animals can be sacraficed on separate days. Rather, it hints at an objection to attempting to serve GOD by destroying a family unit (the presumed effect of taking the mother bird together with its nest). Perhaps the Rambam hints here that there is more than compassion involved in the kan tzippor prohibition. However the wording accepting the view of the one Amora that mitzvot are treated as divine will (presumably without probing for reasons) is bothersome. In any case, as you pointed out, he accepts the practical implications of mitzvot as divine will, but continues to believe that there are reasons for them.

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  27. Are you perhaps saying the the Rambam's position in the Moreh--that Hashem definitely has merciful reasons behind these mitzvos-- squarely contradicts this halacha about prayer no matter how it is explained by the gemara?

    I'm not saying it. The Rambam said it himself in the Moreh:

    When in the Talmud (Ber. p. 33b) those are blamed who use in their prayer the phrase," Thy mercy extendeth to young birds," it is the expression of the one of the two opinions mentioned by us, namely, that the precepts of the Law have no other reason but the Divine will. We follow the other opinion.

    He could have said that we follow the other explanation in the Gemara, but he doesn't. Presumably he doesn't think that explanation is true or that the Gemara itself doesn't think that the explanation is true.

    But there is no real contradiction because one is halacha and one is not, and each domain has different decision making processes, as the Rambam makes clear.

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  28. The language of the Rambam clearly points to the solution to the apparent contradiction. A distinction needs to made between the concept that the mitzvah expresses mercy, and that the mitzvah teaches mercy. As commented above, many commentators on the Rambam have reconciled the contradiction in this manner.

    And no one wrote it better than the Ramban on Chimash:

    וכן מה שאמרו (ברכות לג) לפי שעושה מדותיו של הקב"ה רחמים ואינן אלא גזרות לומר שלא חס האל על קן צפור ולא הגיעו רחמיו על אותו ואת בנו שאין רחמיו מגיעין בבעלי הנפש הבהמית למנוע אותנו מלעשות בהם צרכנו שאם כן היה אוסר השחיטה אבל טעם המניעה ללמד אותנו מדת הרחמנות ושלא נתאכזר כי האכזריות תתפשט בנפש האדם כידוע בטבחים שוחטי השורים הגדולים והחמורים שהם אנשי דמים זובחי אדם אכזרים מאד ומפני זה אמרו (קידושין פב) טוב שבטבחים שותפו של עמלק והנה המצות האלה בבהמה ובעוף אינן רחמנות עליהם אלא גזירות בנו להדריכנו וללמד אותנו המדות הטובות וכן יקראו הם כל המצות שבתורה עשה ולא תעשה גזירות

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  29. See also the Tosfos Yom Tov who writes:

    וטעמייהו דוקא בתפלה שכשאומר בתפלה מחליט הדבר ולהכי משתקין אותו מה שאין כן דרך דרש או פשט

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  30. See also the נצי"ב in העמק דבר:
    וזהו מסעיפי הרחמים. ומ״מ אינו אלא גזירה

    I saw the following טורי אבן (cited in שדה צופים):
    http://hebrewbooks.org/pdfpager.aspx?req=49406&st=&pgnum=280

    דוודאי האי מ״ד נמי ס״ל שאין טעם קן ציפור משום רחמים אלא גזירת המלך לחוד הוא. מיהו ס״ל מש״ה לחוד לא היו משתקין לי׳ על שטעה ועשה מדותיו של הקב״ה רחמים ואינו כן אלא מש״ה משתיקין אותו מפני שעל ידי טעותו מטיל נמי קנאה במעשה בראשית. ואידך ס״ל דמש״ה לחוד משתקין אותו מפני שהוא עושה מדותיו של הקב״ה רחמים ואינן אלא גזירות ולקנאה לא חיישינן. אבל אין לפרש דלמ״ד משום קנאה ס״ל דטעם קן ציפור באמת משום רחמים ואינן גזירות

    What he is saying is that all agree that Mitzvot are decrees, and are not necessarily expressions of Divine mercy. The debate is whether that reason alone is sufficient cause to silence one who utters such a prayer.
    If that's the case, then there's no dispute on this matter of Hashkafa. If there's no dispute, but unanimous consensus, then there's no psak. At least not in the Yad.
    (Of course, we would still have to reconcile this with the Rambam's statement in the Guide, but perhaps the distinction cited above in the comments can be applied here too. In any case, perhaps we can say that in the Guide, the Rambam is expressing an opinion and not a psak.)

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  31. I have seen it suggested, that since early Christian art contained a lot of birds, symbolizing a merciful ressurection, that this is why the Talmud ruled the way it did.

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  32. More evidence that there is no dispute on this point in hashkafa is from רבינו יהודה מלוניל:

    מפרש בגמ׳ לפיכך משתקין אותו בשמטיל קנאה במעשה בראשית...עוד טעם אחד, שעושה מדותיו של הקב״ה רחמנות ואינן אלא גזירות,

    Since he says עוד טעם, the implication is that it's just an additional reason, and it's not necessary to say that the other rejects the principle of שעושה מדותיו. If that's the case, the Rambam did not pasken Hashkafa in the Yad, since there was no dispute.

    We see (from many authorities) that there's a general consensus that we don't definitively ascribe reasons for מצות, but we can 'tentatively' do so for purposes of דרוש and מוסר.

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  33. See also the מהר״ל in תפארת ישראל here: http://hebrewbooks.org/pdfpager.aspx?req=42865&pgnum=134

    He explains both opinions in the gemara, but emphasizes that both understand the מצוה to be a גזרה. Even according to the first opinion, the מצוה is seen as a גזרה and not an expression of mercy. For it were an expression of mercy, it would imply that Hashem is merciful to the bird specifically and not other creatures. Hence the reason of שמטיל קנאה. Rather, the מצוה is a decree, and thus there is no reason for קנאה, since the מצוה does not imply preferential mercy to one particular creature.
    Thus, according to the מהר״ל, both opinion agree that we accept מצות as decrees. Thus, the Rambam is not paskening in the Yad- he's just citing a unanimous opinion. This is not a counter-example that would show that the Rambam paskens hashkafa.

    (The מהרש״א in his חדו״א seems to holds that two אמראים do argue whether מצות are only a גזרה. However, even he explains the first opinion using the phrase אפשר דמצוה זו מצד הרחמים. The word אפשר implies that this אמורא is only offering a tentative reason. It could be that he too agrees that מצות are decrees, but he allows finding some reasoning for מצות as long as the reason is not stated as definitive. He also would allow such reasons to be mentioned in תפילה, unless the reason would have another problem- like here where the issue would be שמטיל קנאה.)

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  34. The language of the Rambam clearly points to the solution to the apparent contradiction. A distinction needs to made between the concept that the mitzvah expresses mercy, and that the mitzvah teaches mercy. As commented above, many commentators on the Rambam have reconciled the contradiction in this manner.

    All approaches to resolving the "contradiction" are wonderful, but don't apply to the Rambam himself. If the Rambam believed explanation "X", then he would have said:

    When in the Talmud (Ber. p. 33b) those are blamed who use in their prayer the phrase," Thy mercy extendeth to young birds," it is because of [insert explanation "X"] and does not imply that Mitzvos don't have reasons.

    The Rambam himself believed that there was a contradiction between the halacha and his own belief, since the halacha is the expression of the opinion that mitzvos don't have reasons other than as expressions of the will of God.

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  35. Thus, according to the מהר״ל, both opinion agree that we accept מצות as decrees. Thus, the Rambam is not paskening in the Yad- he's just citing a unanimous opinion. This is not a counter-example that would show that the Rambam paskens hashkafa.

    Ephraim, I think that you may not be fully understanding Rav Meiselman's position. His position is that any clear statement about Hashkafa that the Rambam makes is P'sak and no different from Halacha. If the Rambam is bringing down a unanimous opinion of the Gemara, then all the more so that it is a definitive P'sak in Hashkafa.

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  36. The language of the Rambam clearly points to the solution to the apparent contradiction. A distinction needs to made between the concept that the mitzvah expresses mercy, and that the mitzvah teaches mercy. As commented above, many commentators on the Rambam have reconciled the contradiction in this manner.

    Again, this doesn't fit the Rambam who says:

    It is also prohibited to kill an animal with its young on the same day (Lev. xxii. 28), in order that people should be restrained and prevented from killing the two together in such a manner that the young is slain in the sight of the mother; for the pain of the animals under such circumstances is very great. There is no difference in this case between the pain of man and the pain of other living beings, since the love and tenderness of the mother for her young ones is not produced by reasoning, but by imagination, and this faculty exists not only in man but in most living beings.

    The Rambam goes into detail to explain that animals like people do in fact have love for their offspring. He did not need to do that if he felt that it was just to teach an analogy or to accustom us to mercy without actually being merciful.

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  37. "If the Rambam is bringing down a unanimous opinion of the Gemara, then all the more so that it is a definitive P'sak in Hashkafa."

    The Rambam made his statement against paskening hashkafa in at least five places. The common denominator of all five is מחלוקת. That would strongly imply, that if there is no מחלוקת, then a psak (for lack of a better term) is appropriate. Only where there is a dispute, can there be no definitive authoritative psak regarding hashkafa.


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  38. Regarding what I wrote earlier about nebach an apikores vs. psak in hashkafa, I just noticed that R' Aharon Feldman seems to say something similar (http://www.zootorah.com/controversy/SLIFKINARTICLE.doc, notes 38-40). R' Feldman understands R' Elyashiv to mean that although what R' Slifkin is saying really is apikorsus because of psak in hashkafa, but R' Slifkin himself can't be an apikores because he intended to give a correct understanding of the Torah and was basing himself on legitimate shitos. In other words, he's a nebach apikores (according to R' Feldman) but a nebach apikores is NOT a real apikores.

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  39. I also noticed that the blogger DarkBlueHat (http://darkbluehat.blogspot.com) makes a similar argument to mine in his last post.

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  40. Lo Zachisi Lehavin what this whole debate is about. Can someone kindly explain to me how you can PASKEN metzius?

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  42. Regarding what I wrote earlier about nebach an apikores vs. psak in hashkafa, I just noticed that R' Aharon Feldman seems to say something similar (http://www.zootorah.com/controversy/SLIFKINARTICLE.doc, notes 38-40). R' Feldman understands R' Elyashiv to mean that although what R' Slifkin is saying really is apikorsus because of psak in hashkafa, but R' Slifkin himself can't be an apikores because he intended to give a correct understanding of the Torah and was basing himself on legitimate shitos. In other words, he's a nebach apikores (according to R' Feldman) but a nebach apikores is NOT a real apikores.

    See R. Slifkin's Hakirah article. He argues that the language of apikorsus is not "literal".

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  43. Ephraim said...
    "If the Rambam is bringing down a unanimous opinion of the Gemara, then all the more so that it is a definitive P'sak in Hashkafa."

    The Rambam made his statement against paskening hashkafa in at least five places. The common denominator of all five is מחלוקת. That would strongly imply, that if there is no מחלוקת, then a psak (for lack of a better term) is appropriate. Only where there is a dispute, can there be no definitive authoritative psak regarding hashkafa


    I question all arguments of the form "since he only mentioned example of type X, this implies that all other examples fit my theory, and examples of type X are exceptions."

    Be that as it may, the question of whether Mitzvos have reasons is a dispute according the Rambam. I fear that I'm not understanding where you are going with this line of reasoning.

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  44. "I question all arguments of the form "since he only mentioned example of type X, this implies that all other examples fit my theory, and examples of type X are exceptions."

    What the Rambam writes in all five places is that we don't pasken in a dispute regarding hashkafa. It's overreaching to assume without evidence that he would refrain from "paskening" hashkafa where there is no dispute.

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  45. " In Moreh Nevuchim, by contrast, he states that the mitzvah is indeed an expression of mercy."

    This is a highly problematic inference...

    The Meiri on the gemara writes the following:
    ונראה לי מפני שהוא מיחד השגחה פרטית בבעלי חיי׳ וכבר אמר כמתרעם ותעשה אדם כדגי הים הורה שאין ההשגחה בבעלי חיי׳ רק השגחה מינית לבד.וזהו לדעתי מה שאמר בגמרא מפני שמטיל קנאה
    (See also the מהר"ל)

    Now, the Rambam in the Guide takes the same position on Providence- that השגחה פרטית does not extend to individual creatures. Thus, it's impossible that he holds that שילוח הקן is an expression of Divine mercy. His theory of Providence does not allow for Divine mercy to be expressed specifically on an individual bird. (That the מצוה instills in humans the trait of mercy is another matter.)

    So what is the Rambam talking about when he says "we follow the other opinion"?

    See here http://hebrewbooks.org/pdfpager.aspx?req=14118&st=&pgnum=574
    According to אפודי, the other opinon is:
    ר״ל שיהיו המצות נתונות על צד החכמה ויהיה להם תכלית מכוונת

    According to קרקרש (and the earlier cited אדני יד החזקה) the other opinion is:
    פירוש שכל המצות יש להם טעם וסבה מבואר או בלתי מבואר

    And according to נפתלי בן יוסף אשכנזי (http://hebrewbooks.org/pdfpager.aspx?req=44620&st=&pgnum=120) :
    ואנחנו מחזיקים בסברא שנייה שיהיה בכל המצות טעם

    I could also add בן ידיד and the פרי האדמה to the above list.

    It's quite clear that the Rambam could not be stating "that the mitzvah is indeed an expression of mercy."

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  46. " In Moreh Nevuchim, by contrast, he states that the mitzvah is indeed an expression of mercy."

    This is a highly problematic inference...


    That is a quotation from TCS, not my own. I don't see that it is as problematic, but my thesis doesn't rely on this sentence.

    The meaning of "we follow the other opinion" is obvious from the context (as the commentaries you quote note) and I don't think that Rabbi Meiselman thinks that it means anything else.

    Again, I may be missing the implication of your post.

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