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.