Guest Post: Response to Some Objections [Can we "pasken" the age of the universe? (Part 4A)]

Copyright 2014 by David Ohsie. All rights reserved

This is a short interlude to summarize some of the reaction to our last post.

We'll reproduce the important quotation here from Moreh 3:48

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.

1. Many commenters try themselves or bring commentaries to resolve the halacha with the opinion that Mitzvos have a purpose and that part of the purpose Shiluach Haken is (or may be) divine mercy (or mercy in general).  None of these are relevant to the Rambam's opinion, because he says explicitly, that in his opinion, the halacha is the expression of the opinion that Miztvos "have no other reason but the Divine will" and that he disagrees and believes that Mitzvos have reasons.  This covers Rabbi Kornreich's attemped resolution on his blog as well.
2. We should point out that the real issue here is not a contradiction between the Mishneh Torah and the Moreh.  The quotation from the Moreh is problematic in itself if you believe that there is p'sak in hashkafah. The Rambam cannot simply discard the fact that this halacha is brought down twice in the Mishnah with no dispute; each time the Gemara implies that that it is the halacha pesukah.   It is hardly a feasible interpretation to say that the Rambam held in the Moreh that we don't pasken like this halacha.   Almost undoubtedly, if immediately after the Rambam had penned the quotation above, the Shatz had gotten up and said "May He who showed mercy on a bird's nest prohibiting the taking of the mother together with the chicks also show mercy on us," he would have politely stopped him.
The fact that he does bring down this halacha in Mishneh Torah simply reinforces that this is the halacha.   What we see is that even if a halacha pesuka is based on a reason, the p'sak enjoins the halacha itself, but there is no p'sak on the underlying philosophical dispute.  Which is precisely the principle that he repeats at least 5 times in his writings.
3. Rabbi Kornreich writes: 

The problem is that Mr. Ohsie's solution does not reflect the text of Mishna Torah. If all the Rambam intended in Mishna Torah was state the practical halacha without giving a definitive ruling about the hashkafic reason behind it as Mr. Ohsie claims, the Rambam should have just stated that "one cannot invoke Shiluach Haken in asking for mercy". Period. No reasons necessary nor is it appropriate to state them in a book of strict halacha.

The reasoning here is circular.  As we pointed out in the last post, there are lots of halachos in Mishneh Torah that are not "strict halacha" and my argument is precisely that he is not paskening hashkafa, because he says explicitly five times that this is not possible.  In this specific case, the halacha is mostly insensible without the associated reason.  We would be at a loss as to know what exactly was being prohibited.

But in fact, the Rambam does NOT stop at stating the practical halacha. He proceeds to state one of the two hashkafic reasons behind it provided by the gemara in Brochos 33b, thereby rendering a ruling in hashkafa between the two opinions!

As I mentioned, the Rambam is probably forced to give a reason in order to make sense of the halacha.  The reason that he chose to write down the second reason in the Gemara is pretty easy to understand: he believed that was truly the reason behind the halacha as he states in the Moreh.  But even if he was not forced to write it, that doesn't mean that he wouldn't, since he believed it was the true reason for the halacha Pesuka.

The contradiction between the ruling of the Mishna Torah and the ruling of the Moreh over this hashkafic idea is real. [paragraph break] It cannot be evaded it by ignoring what the Mishna Torah actually says or by pretending the Rambam didn't mean it to be taken seriously. (Nor by claiming the Rambam personally disagreed with what he himself stated as the reason for the halacha! Is this something praiseworthy for an Ish Emes?)

The Rambam was meant to be taken seriously.  You really are prohibited from saying such prayers.  And the reason behind the prohibition is that the Mitzvos have no reasons but the Divine Will as he states in the Moreh as well as the Mishneh Torah.  But the reason behind this halacha is actually disputed and you need not agree with that side in the dispute, since there is no P'sak in Hashkafah.  And yes, it is a sign of integrity if you properly quote an argument from the Talmud which you yourself disagree with.

In any event, neither one of these examples show that there is no p'sak in hashkafa to be found in the entire Mishna Torah! At worst, some hashkafic rulings which appeared to be binding in the Mishna Torah were overturned later by the Moreh and replaced with a different binding p'sak in hashkafa there. [paragraph break]  A more cautious conclusion to be drawn from these alleged contradictions (which we need not grant as truly contradictory as per section III above) is that whatever p'sak in hashkafa found in MT that wasn't later overturned and replaced by the Moreh remains binding.

I don't agree with these possible "solutions" because no solution is needed.  But to the degree that they fit Rabbi Meiselman's thesis (these are Rabbi Kornreich's words), they actually demonstrate the difficulties with it.

According to this approach, Judaism prohibits us from believing opinions maintained as true by Tannaim and Amoraim, even though they may be true, because of a P'sak.  And then if a new P'sak is given, we required to believe as false what we were previously required to believe as true, and take up the formerly prohibited belief.  Effectively we are required to have false beliefs.  Which is a wonderful support for the Rambam's principle on p'sak, which eliminates such difficulties.

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.