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!