ELU VA-ELU DIVRE ELOKIM HAYYIM:
HALAKHIC PLURALISM AND THEORIES OF CONTROVERSY
This article originally appeared in TRADITION 26:3,
1992.
I.
The theme of Pluralism, as it relates to the value of
controversy and to the legitimacy and precise status of conflicting opinions,
is fundamental to law and obviously constitutes a crucial conceptual and pragmatic
challenge for any legal system. With respect to halakha, however, there are
additional elements and dimensions to consider which further complicate an
already elaborate issue. Halakha is, after all, a uniquely divine system of law
predicated on the interaction of two superficially dissonant motifs -- an
ontologically independent devar haShem, on the one hand, and the almost autonomous human capacity and
obligation to interpret that devar haShem, accompanied by the
responsibility that this measure of autonomy entails, on the other. Thus, the
topic of halakhic controversy and pluralism assumes even greater prominence
than one might have anticipated in reflecting the essential character of
Halakha as an effective legal system.
From one perspective, an analysis of this
topic is important because it enables us to formulate the halakhic attitude and
policy toward the issue of dissent and the dissenting, even rejected, minority
view. It affords us the opportunity to evaluate its role, and to assess the
dimension it contributes to the overall system, as well as to define the
necessary parameters which limit its centrality, without which halakha as a
unifying and authoritative legal system would be jeopardized.
There is, however, an additional
contemporary dimension to this issue which increases the urgency for its proper
investigation. We live in an era in which extravagant claims march under the
banner of religious pluralism. In part, this is due to the present connotation
of the term which conjures the image of standards watered down by unrestricted
and uncritical flexibility. Primarily, however, this phenomenon can be traced
to the bold assertions of the Conservative and Reform movements, whose
justification of halakhic deviation on the basis of a pluralistic perspective
constitutes the perversion of a concept that in its authentic form accents the
depth and intensity of a maximally demanding Halakha as the embodiment of devar
haShem.
The enterprise of investigating this topic is plagued by both
methodological and substantive difficulties. There is no clear locus classicus in terms of the central
issues. Even the Talmudic passages in Hagiga (3b) and Eruvin (13b), which we shall demonstrate to be the most significant
texts, are ambiguous in terms of their real implication. At the same time, the
broad issues that are central to this theme pervade the philosophy of halakha
and therefore encompass many subtopics. Issues such as lo bashamayim hi
(the Torah is not in heaven), the independence of a posek from previous
authority and perhaps even from divine authority, and complex questions of
procedure and methodology of pesak vis-à-vis
the pursuit of halakhic truth border and sometimes overlap our theme and thus
complicate the picture considerably.
The philosophical and
epistemological difficulties suggested by the very concept of multiple truths—an
apparent oxymoron—constitutes another dimension of the problem. This can be
illustrated by what I believe to be a fundamental misconception—the association
of our concept of elu-va-elu divre
Elokim hayyim (both positions
of a debate represent the word of the living God) with the so-called medieval Double
Truth Doctrine of the Averroist school with respect to conflicts of Faith and
Reason. Firstly, it should be noted that there is considerable doubt that such
a theory ever existed. Etienne Gilson and others have pointed out that such an
attribution first appears in 1277 in the introduction to a church document
authored by Bishop Etienne Tempier of Paris which condemned heterodox
ideologies. It is likely that rather than representing a true and justifiable
doctrine, this view was attributed to the Averroists by their religious critics
who suspected them of covering up their heresy by cynically and insincerely
clinging to Belief while truly being committed to Reason. In fact, Averroists
merely asserted that despite their authentic belief in the teachings of Faith,
they could not but acknowledge that Reason revealed a different set of conclusions,
and they were unwilling to brand logical philosophical analysis a waste of time
in spite of this dilemma1. Be it as
it may, this theory of Double Truths fundamentally acknowledges the absolute
dichotomy between two distinct spheres—Religion and Reason. This approach
cannot serve as a model for the concept of eilu
va-eilu which refers to multiple truths all of which are legitimate
expressions of the Divine Spiritual domain2.
Moreover, in attempting to
evaluate the overall topic of halakhic pluralism, confusion is likely to stem
from a lack of clear differentiation between different phases of the issue—each
characterized by its own dynamics and range of options. These include: a)
biblical exegesis and Jewish philosophy; b)
the process of Talmud Torah and the
theoretical status of hefzah shel Torah (an essence of
Torah); c) pesak halakha and
the relationship between procedure and its de facto conclusions, and the pursuit
of objective halakhic truth.
I shall endeavor to outline some
of the possible approaches and parameters of this problem without making any
attempt to achieve the kind of comprehensive treatment that would demand much
more extensive elaboration on issues of authority, procedure and methodology of
pesak than the scope of this paper permits.
II.
In the realm of biblical
exegesis (parshanut) and Jewish thought (hashkafa), diversity of
opinion and interpretation is pervasive and the perception of its legitimacy is
widely acknowledged. Pluralism in these contexts poses no real difficulty
inasmuch as the fundamental guidelines which regulate these disciplines and
provide their religious sanction are quite clear. Several additional factors
contribute to this as well.
The primary focus of pluralism
in these contexts is not contradictory views, but multiple layers of meaning
since generally no absolute mutually, exclusive values or determinations are at
stake. It is not only possible but even compellingly logical that events,
institutions and mizvot which are perceived to be Divinely inspired and
spiritually invested should have the capacity to accomplish many functions and
to symbolically represent more than one single theme. Moreover, inasmuch as the
primary sources of these enterprises are usually biblical-divine texts rather
than human rabbinic texts, multiple meanings consequent on a divine text are
possible. Even when relevant, rabbinic texts do not exert the same measure of
binding authority in areas of parshanut and hashkafa as they do
in halakhic discussions. The midrash and aggadot of the Talmud
are open to allegorical interpretation and according to some halakhists even to
rejection.3 While one must seriously consider the
message of aggadot, they certainly do not have the force and normative
weight of halakha.
On the social-communal level,
too, there is not the same kind of urgency for uniformity in the sphere of hashkafa as there is in halakha, where
concrete performances, mutual obligations and objective procedures are central.
With respect to the notion of a subjective inner life of the spirit, a
pluralistic ideology addressing itself to individual inclinations and
intuitions potentially constitutes a more valuable and effective approach to
religious life.
And yet, the broad parameters of
even this pluralism should not be misconstrued as unrestricted as some would
have us believe. Moses Mendelsohn's dogma of the "dogmalessness of
Judaism" is clearly an unacceptable exaggeration, explicitly rejected by Rishonim
who articulated Articles of Faith (Ikarrim)
in whatever form, pattern or number. Obviously, there can be no Orthodox
Judaism without an absolute affirmation of certain basic concepts of God, of
the commitment to a binding halakha based on the concept of Torah miSinai, and of the notion of human responsibility and accountability
in the form of Divine
Providence, reward and punishment, etc. Moreover, beyond adherence to official Ikarrim, it is evident that to be acceptable as a legitimate
expression of Judaism, a perspective must establish itself by meeting
additional basic criteria. It should, for example, have visible roots in
authoritative texts or in Rabbinic tradition (mesora), and it should be
advocated by a religious
personality of some stature.
These
qualifications notwithstanding, the diversity and range of perspective in parshanut and hashkafa is impressive and wholly acceptable to Hazal. Statements like "shiv'im panim la-Torah (there are 70 dimensions to the Torah")4
and "u-kepatish yefozez sela—ma
patish zeh mithalek le-kama nizozot, af mikra ehad yoze le-kama te'amim (and like a hammer that breaks the rock in
pieces—just as [the rock] is split into many splinters so also may one biblical
verse convey many teachings)" (Sanhedrin 34a), and the view expressed by Ramban in the
preamble to his commentary in the Torah (where he formulates the notion of
Torah as a Divine text formed by the infinite combinations of Divine names,
allowing it to serve as a creative exegetical source of all types of knowledge
simultaneously), provide the conceptual underpinning for this reality.
We are witness
to diversity of opinion not only on every page of the Mikraot Gedolot and Midrash
Rabba, but within the schemes of particular parshanim as well, with each
suggestion advanced, claiming for itself a measure of truth. Ramban moves with
facility from derekh hapeshat to derekh ha'emet and Rabbenu Bahyah
from peshat to derash to sekhel, etc. Weencounter the same phenomenon with regard to ta'amei
hamizvot. Rambam and Ramban represent diverse approaches to
this discipline and certainly to specific mizvot.
Within individual schemes, such as that promulgated by Sefer haHinukh, we are
witness to the assertion of multiple purposes and truths.5
This approach characterizes
discussions of Jewish philosophy even when positions that are developed are
mutually exclusive. Debates rage on such fundamentals as the eternity of the
universe, free choice, knowledge of particulars, the role of the intellect for
prophecy and generally. Passionate argumentation regarding the very legitimacy
of such basic orientations as Philosophy, kabbala,
hasidut, and musar highlights this theme asdoes the integration into some personalities of multiple disciplines. The
projection by some Jewish historians of an absolute demarcation between Jewish
philosophers and kabbalists, for example, represents a distortion as Gershon Scholem
has demonstrated.6 This misreading of Jewish
intellectual history derives at least in part from a failure to fully
appreciate the wide-ranging hashkafic pluralism of Judaism.
To be sure, a basic consensus
and hierarchy of values and perspectives has emerged from the historical
process of generations of debate—acceptance, rejection, refinement etc. In this
sense, hashkafa is self-regulating as
it must be. At the same time, it is evident that there is a great deal of
flexibility and latitude in establishing legitimacy in this area. Clearly,
diversity of opinion and multiplicity of meaning are not only acceptable but
contribute to and are consistent with the attainment of the religious ideal in
Judaism.
Halakhic controversy, though it
too is obviously very prevalent, represents a different kind of problem. The
ultimate goal of an halakhic analysis is to arrive at a specific, single solution
and halakhic debates generally revolve around mutually exclusive responses,
only one of which is purported to represent absolute truth. From this
perspective, one should only be able to account for reward for sincere, if failed,
effort and for a measure of respect accorded to an opinion that may possibly
reflect the authentic view, but no more. Yet, several Talmudic sources indicate
otherwise. They project a notion of inherent value of dissenting views and
possibly even of multiple truths. Thus, the Talmud (Eruvin 13b) relates the following: R. Abba stated in the name of
Shmuel:
For
three years there was a dispute between Bet Shammai and Bet Hillel, the former
asserting, "The halakha is in agreement with our views," and the
latter contending, "The halakha is in agreement with our views." Then
a bat kol issued announcing,
"The utterances of both are the words of the living God, but the halakha
is in agreement with the ruling of Bet Hillel."
It is
particularly noteworthy that this apparent advocacy of multiple truths appears
in a context whose primary concern is to establish the halakhic decision
according to one particular view.
Another
Talmudic passage attributes the legitimate diversity of halakhic perspectives
to a single act of revelation despite the obvious logical irony that this
entails. The Talmud (Hagiga 3b) explains:
"The
masters of assemblies": these are the disciples of the wise, who sit in
manifold assemblies and occupy themselves with the Torah, some pronouncing
unclean and others pronouncing clean, some prohibiting and others permitting,
some disqualifying and others declaring fit.
Should
a man say: How in these circumstances shall I learn Torah? Therefore the text
says: "All of them are given from one Shepherd." One God gave them;
one leader uttered them from the mouth of the Lord of all creation, blessed be
He; for it is written: "And God spoke all these words." Also do thou make thine ear like the hopper and get thee a perceptive heart to
understand the words of those who pronounce unclean and the words of those who
pronounce clean, the words of those who prohibit and the words of those who
permit, the words of those who disqualify and the words of those who declare
fit.
How, then, is
one to evaluate this concept and these sources?
One approach
might be to view statements such as these as referring to the inherent
significance of the process of talmud Torah which
necessarily includes an exchange of conflicting opinions. The author of Netivot
haMishpat articulates the view that there is considerable value in halakhic
debate which contributes to the process of talmud
Torah by identifying misconceptions, refining authentic views and honing
and sensitizing halakhic intuition. He argues:
Though
halakhic errors are inherently false, they nonetheless serve an important
didactic function. Indeed, one cannot successfully establish halakhic truth
without some measure of initial failure. The early stages of halakhic analysis
bear a similarity to a diver who is not yet capable of distinguishing worthless
stones from the treasure he wishes to retrieve. More often than not, he
surfaces with the former rather than the latter. However, once he has analyzed
his error he emerges with an enhanced capacity to discern. The very process of
failure increases his sensitivity to the nuances that distinguish precious
jewels from stones, enhancing his future prospects for success. When he dives
again many of the worthless stones that were initially responsible for his
confusion are no longer present, having already been discarded. Those that
remain are unlikely to generate further confusion inasmuch as the diver has
learned to identify the differences between precious and worthless stones. Thus
his initial failure contributes to his ultimate success. As the Rabbis indicate—if
he had not drawn worthless objects, we would not have discovered the valuable
item which they camouflaged. For this entire process there is a heavenly reward7.
These
sentiments accurately reflect an ambitious view of talmud Torah not simply as a means of attaining
pesak—la-asukei shma'ata aliba dehilkheta—but as constituting the
vehicle for dialogue and encounter with devar haShem—an intrinsically
significant spiritual process and religious experience. As important as this
theme is, however, it does not adequately ,justify the striking language and
dramatic formulations that these sources convey.
One might assess the concept of elu
va-elu divre Elokim hayyim against the background of the overall scheme
developed by Neziv in his introduction to the Sheilot, Kidmat haEmek,
though Neziv himself does not fully explicate his position with respect to this
concept specifically8. Neziv develops two
distinct categories of halakhic decisions. One means of halakhic resolution is
rooted primarily in intuition. Objectively, the issue remains unresolved
despite the fact that a practically binding normative conduct has been
established. The historical model of this kind of pesak—classified by
Neziv as hora'a—can be traced to the methodology of the kohen in
his function as posek. From this point of view, dissenting opinions
retain an absolute status as hefzah shel Torah with respect to which
one could justifiably declare elu va-elu divre Elokim hayyim. The second
method of pesak—characterized by Neziv as hakhra'ah ledorot—derives
from exhaustive and ultimately conclusive logical analysis, and is the special
domain of the shofet-mehokek (judge-legislator) whose historical
prototype was Yehudah. When a halakhic issue is resolved in this manner at a
particular point in history, the dissenting a position loses at least its equal
status as a legitimate expression of Torah. This form of pesak was
revealed to Moshe at Sinai as the product of a specific individual's definitive
analysis—"kol ma she-talmid vatik atid le- horot ne'emar leMoshe
miSinai (halakhic decisions that will be formulated in the future by
qualified scholars were already, in fact, articulated by Moses at
Sinai)"—and is even occasionally designated as hilkheta gemire,
reflecting: its absolute authority. Thus, Neziv asserts a limited historical
double truth theory effective only until the point of absolute logical
resolution.
However, Neziv does posit that
even within his second motif of decisive pesak, there exist two basic
categories of rejected opinions. Employing homiletical license, he likens the
status of minority opinions to the suggestive connotations of the terms nizozot
(sparks) and netu’im (branches) used respectively in Sanhedrin (34a) and
Hagiga (3b). Just as one cannot speak about sparks or branches without
acknowledging their diversity of size, significance, function and purpose, one
cannot speak about disputed halakhic opinions in uniform terms either. While
the resolution of many halakhic debates strip the rejected position of any
redeeming value, there are some minority opinions which retain a measure of or
Torah (light of Torah) though they are in their stated form objectively
inaccurate. Thus, for example, the view that a female Ammonite is included in
the prohibition of lo yavo amoni u-mo'avi bi-kehal haShem (Ammonites and
Moabites are prohibited from marrying Jews), is valueless if it is incorrect.
However, R Eliezer's assertion that one must fulfill the mizvah of keriyat
shema before the first third of the night has passed - ad sof ashmora
rishona9 - retains the stature of or Torah
inasmuch as it contains and highlights valuable kernels of conceptual if not
practical truth. It establishes that ashmora rishona may be a significant
halakhic time frame. More significantly, R. Eliezer dramatizes through his
radical application that be-shokhbekha
u-vekumekha—which defines the obligation—may refer to the time period when
people go to sleep rather than the time in which they are asleep. This theory
possibly serves as the basis of the position of the hakhamim who extend the obligation until midnight, though they
dispute R. Eliezer's technical restriction of this concept to the period of ashmora
rishonah. This theme—that radical minority views have considerable
conceptual and didactic value—is a common theme in halakha and is especially
central to the methodology of conceptual Torah study. From this perspective,
the notion that there is value in halakhic debate and more than one absolute
truth represents a limited but still meaningful principle.
It is conceivable that this view
of the value of rejected opinions in terms of their potential contribution to a
more accurate and sophisticated conceptual understanding of halakha underlies
Rema's comprehension of yet another problematic Talmudic text. The Talmud (Sanhedrin 17a) evidently establishes
the capacity for inaccurate mental gymnastics as a prerequisite for judicial
appointment to the Sanhedrin. Thus we are informed: "ein moshivin be-sanhedrin ela mi she-yode’a le-taher et
hasherez min ha-Torah" (the ability to argue convincingly that an insect is not ritually impure is prerequisite for judicial appointment)." The Tosafists
accent the apparent difficulty and comment on the dubious value of this
characteristic: "R. Tam queried, What is the purpose of such meaningless
mental gymnastics?10 Rema,
in responsum, explains as follows:11
If one
is capable of logically demonstrating the ritual purity of these animals, one
will perceive the Torah's ruling as a hidush (revealed, but radical doctrine).
This is significant because it dictates that we should limit its application as
much as possible. Thus, while the blood of a sherez is assigned the status of
impurity as is its body, it is conceivable that the minimal measure that
generates impurity with respect to the body of the sherez (ke-adasha) does not
apply to its blood. The purpose of this mental gymnastic then, is to reveal to
us the innovative character of the Torah's ruling and therefore it yields
important substantive results in terms of the limiting of that ruling.
Rema thus
argues that this statement does not refer to the meaningless capacity for
intellectual gamesmanship nor does it seek only to insure the appointment of
judges with an impressive grasp of a great deal of knowledge. In fact, it
establishes that a measure of additional sophistication regarding the inner
workings of the halakhic process, including the ability to assess the
implications of non-normative possibilities and to utilize halakhic debate to
shed light on the nuances of a topic which might have some normative impact is
a necessary pre-condition to judicial appointment where the stakes are so high.
At the
same time, if we accept the general scheme developed by Neziv, it is
conceivable that even the mizvah of talmud Torah would extend only to that class of minority viewpoints
that retain the status of or Torah due to some normative or at least
conceptual benefit that they may yet provide. This stance is certainly open to
debate. In the twentieth century, for example, R. Moshe Feinstein in one of his
responsa eloquently argues on the basis of elu ve-elu divre Elokim hayyim that in the realm of talmud Torah and for purposes of birkat ha-Torah, minority positions are absolutely equivalent to normative halakhot. He goes so far as to suggest that even God and his heavenly
retinue (metivta de-rekia) spend
time discoursing and studying
these doctrines in the context of talmud Torah12.
The possibility of real multiple halakhic truths does not
really emerge from Neziv's scheme. This approach is, however, implied by
other sources, Rashi for example, seems to
affirm this doctrine13:
When a
debate revolves around the attribution of a doctrine to a particular
individual, there is only room for one truth. However, when two Amorairn enter
into a halakhic dispute, each arguing the halakhic merits of his view, each
drawing upon comparisons to establish the authenticity of his perspective,
there is no absolute truth and falsehood. About such issues one can declare
that both represent the view of the living God. On some occasions one
perspective will prove more authentic, and under other circumstances the other
view will appear to be more compelling. The effectiveness of particular
rationales shift as conditions of their application change even if only subtly.
This more ambitious approach to
our topic is explicated by Ritva, Maharal and Maharshal—each providing their
own nuances and subtleties of formulation, each requiring a conceptual
underpining to justify this difficult concept.
Ritva (Eruvin 13b) cites the inherent paradox of this theme as raised by
the Tosafists14: The Rabbis of France
asked: How is it possible for conflicting
views to both represent the truth? They responded as follows:
When
Moshe ascended to receive the Torah, it was demonstrated to him that every
matter was subject to forty-nine lenient and forty-nine stringent approaches.
When he queried about this, God responded that the scholars of each generation
were given the authority to decide among these perspectives in order to
establish the normative halakha.
His response posits that a full
range of halakhic options—possibly even of equal status—was revealed to Moshe
and sanctioned as hefza shel Torah. License was provided to the scholars
of every generation to pursue what they deemed to be the most accurate pesak on the basis of accepted halakhic
methodology15. The
clear implication of this formulation is that for those scholars halakhic
conclusions are not arbitrary but
based on rigorous analysis and, consequently, the decisions become
normative for that generation16.
A similar perspective would
emerge if one were to adopt the position that the primary thrust of the
Sinaitic mesora was not a detailed
revelation of the multiple permutations of halakha, but a revelation of general
principles17. Man's obligation of
applying halakhic principles by means of the methodology of hermeneutic
principles, etc., would then account for the potential existence of many valid
yet technically mutually exclusive solutions to the same problem.
Maharshal affirms the existence
of multiple truths, possibly of equal value, and contributes a
mystical-historical explanation for it. He states:
One
should not be astonished by the range of debate and argumentation in matters of
Halakha…. All these views are in the category of divre Elokim hayyim as
if each was received directly from Sinai through Moshe. This is so despite the
fact that Moshe never projected opposing perspectives with respect to any one
issue. The kabbalists explained that the basis for this is that each individual
soul was present at Sinai and received the Torah by means of the forty-nine
paths (zinorot). Each perceived the Torah from his own perspective in
accordance with his intellectual capacity as well as the stature and unique
character of his particular soul. This accounts for the discrepancy in
perception inasmuch as one concluded that an object was tame in the extreme,
another perceived it to be absolutely tahor, and yet a third individual
argues the ambivalent state of the object in question. All these are true and
sensible views. Thus, the wise men declared that in a debate between true
scholars, all positions articulated represent a form of truth18.
The Jews who stood at Sinai
evidently were not merely the passive recipients of the Torah. Their presence
and their acceptance as individuals shaped the very content of the Torah at the
critical historical moment it took effect. This formulation dramatizes the
spiritual significance that halaka ascribes to human singularity by revealing
that the subjective inclinations of individuals invested their perspective of
Torah with intrinsic. While this approach shares much in common with Ritva in
terms of human input and the focus on broad principles rather than details, it
significantly departs from Ritva's perspective in its accent on the historical
moment of Sinaitic revelation and with respect to the role of the recipients
of the Torah in forming this
pluralistic Torah and in establishing its contours.
Maharal represents yet another
formulation of the legitimacy of multiple Halakhic truths19. He advocates a doctrine of unequal yet
intrinsic truths. His comparison of halakhic categories and institutions to the
human personality and its manifold complex characteristics suggests a kind of Platonic
model which presupposes the existence of an ideal halakhic status which
precedes and supersedes the sum of its components. There is often no one
decisive response to the issue of tahara or
tuma, for example, since overall
proximity to the ideal form represented by the classic case rather than a
specific combination of components determines this status. Thus, one may speak
of approximating the ideal sufficiently but not fully, and the same token
substantially but not sufficiently, and consequently, a whole hierarchy of
truths would emerge. Dilution of some components and combination with competing
and undermining characteristics may also contribute to the creation of a
quasi-status, whose ultimate fate in the realm of practical halakha is likely
to be debated. Maharal's understanding of the statement in Sanhedrin
(17a) cited earlier flows from this perspective. Even technically inaccurate or
flawed halakhic opinions do contribute to a more sophisticated appreciation of
the depth of content of Torah which makes the ability to justify all angles of
a halakhic problem a proper condition for judicial appointment.
IV.
Having established several
formulations and theories underlying elu va-elu
divre Elokim hayyim regarding the status of dissenting minority views as hefza shel Torah, it is now incumbent
upon us to examine the impact of these perspectives and the role of rejected
minority opinions generally on the institution of pesak.
Whatever position one adopts on
the value of debate to theoretical study, there clearly is an obligation to arrive
at one practical solution based on the sincere conviction of its accuracy. The
relationship of pesak as an
enterprise dedicated to the goal of a single uniformly binding conclusion, and
the ambitious formulations of the theory of halakhic pluralism is complex and
even double-edged. If one advances the position that there is only one
authentic, or at least preferred halakhic truth, then the stakes of pesak
are high indeed. Halakhic decision becomes a hit-or-miss exercise in which the
dissenting view stands in clear opposition to truth. If one has faith in the
process which aspires to produce that truth, one cannot consider dissenting
opinions as legitimate fallback positions to be possibly rehabilitated or
relied upon even under extraordinary circumstances. To do so would be
tantamount to expressing a serious lack of faith in the effectiveness of the
decision-reaching process. At the same time, if one advocates the objective
validity of alternative pesakim, then
even as they are more palatable as devar haShem,
they are ironically perhaps less legally significant as practicable
alternatives once they have been rejected by the process of pesak, for under these circumstances the
formal and procedural aspect of halakhic resolution dominates. Pesak, according to this view, need not
concern itself with the risky uncertain and fallible task of revealing the one
authentic truth, but instead focuses on establishing the best truth consistent
with its own principles of resolution. In this sense, the conclusions reached
are absolutely binding in the realm of normative conduct inasmuch as this view
establishes pesak as a din vadai—an absolute surety. This aspect
of the relationship between pesak and
the theoretical value of alternative perspectives has been largely ignored by
those who perceive of elu va-elu in strictly modern-liberal terms,
ignoring the concomitant ascendancy of pure formal procedure in these schemes20.
How then does halakha view the
right to dissent from majority pesak, and how does itevaluate the objective status of dissenting views? Again the question is a complex one since beyond the status of
the minority opinion—hitherto analyzed—the resolution of these questions turns
on the interaction between two competing values and transcending
aspirations of halakha: the pursuit
of truth and toleration of multiple
perspectives on one hand, and the pragmatic need to establish uniformity,
discipline and order—shelo yiheyu kishte torot (not to fragment
the Torah)21—to insure effectiveness,
on the other. The very need for pesak despite elu va-elu divre Elokim
hayyim is due to this
factor according to Maharshal, Arukh haShulhan
and others22.
The status of Zaken Mamre (henceforth Z.M.), the
rebellious elder who disputes the pesak of
the Great Sanhedrin, is one of the
best examples of this
theme of authority. Ramban explains that the need to publicize the punishment
of the Z.M. (Sanhedrin 89a) is due to the fact that he is not executed because of
the severity of his offense per se but because of his destructive impact23. He is after all entitled to express his
sincerely held halakhic convictions, but is put to death anyway because
his refusal to acquiesce threatens to undermine the very concept of uniform
normative behavior which is crucial to any legal system. The fact that Z.M. is
obligated to accept rabbinic authority and its procedures even when they appear
to be blatantly inaccurate—"af al
yemin shehu semol, ve'al semol shehu yemin
(even if they declare right
to be left and vice versa)"—further accents the significance of
formal procedure and principles of pesak even at the expense of objective
halakhic truth24.
According to Neziv the principle
of Z.M. applies not only to the hakhra'ah
ledorot (definitive decision) of
the shofet-mehokek, but also to the intuitive hora'at kohen, since
corrosive impact on uniform conduct and respect for rabbinic authority are the
crucial components. Thus, he emphasizes the reference to both kohen and shofet in this context: "haish asher ya’aseh be-zadon lebilti shemo'a el ha-kohen ve-el ha-shofet (he who intentionally defies the kohen and the shofet).25
There are
indications that the basic theme of
Z.M. also extends to less qualified disputants and less impressive sources of
authority. Derashot ha-Ran26 and Sefer
haHinukh27 argue that the basic
prohibition of lo tasur applies to any individual who rejects rabbinic decisions. According to Maharam
ibn Habib, this notion of a parallel to Z.M. applies at
least to any judge, and is responsible for an obligation of a minority judge to
surrender his will and acquiese to the
majority whose ruling would otherwise be ineffective due to the principle of en holkhin
be'mamon ahar ha-rov (majority or probability does not dictate in monetary
matters) which appears to exclude majority rule in monetary disputes28.
R. Jacob Emden
rejects the idea that an individual may continue to adhere to his own halakhic
convictions after the principles that regulate pesak have rejected them29. He
too, points to the Z.M. parallel as
the foundation of this position. However others dispute the existence of
such parallels and limit the motif of authority in favor of greater flexibility
in the pursuit of truth.
The tension between the pursuit
of halakhic truth and the integrity of halakhic procedure that insures
effectiveness as a system pervades a number of topics. These range from a
proper evaluation of the story of tanur shel Akhnai (Baba Metzia 59b)
and its climax of lo bashamayim hi, to an issue of judicial
deception discussed by Pit'he Teshuva—if a minority judge is permitted to
falsely declare himself to be undecided in order that he may delay and possibly
lay the groundwork for ultimately reversing the majority decision by
undermining the self-sufficiency of the existing court30.
The complex status of minority
opinions is further reflected in several halakhic contexts. As alluded to
earlier, the Tosafists and others were disturbed by the apparent clash between
the principles of en holkin bemamon ahar ha-rov and judicial
majority rule. Various solutions were proposed to resolve this discrepancy. Two
of these underscore opposing perspectives with respect to the concepts of pesak and objective halakhic truth.
R. Yonatan Eibschitz
distinguishes in his Tumim between
most majorities which are not mutually exclusive of the minority, while issues
of halakha have only one absolute resolution31.
Thus, in his view, the minority perspective in halakha is totally negated by
the majority decision and consequently poses no challenge to it even in the
monetary realm. This explanation probably represents a de-emphasis of halakhic
pluralism.
R. Jacob Emden in a slightly
different context proposes a different approach32.
He argues that judicial procedure excludes any real doubt (safek) since
the majority has the capacity to establish—not just reveal—the law. Obviously
in the absence of real doubt one cannot be concerned with the weight of
presumptive monetary rights (hezkat mamon) that determine en holkhin be-mamon ahar ha-rov. In
this formulation we witness the notion that pesak, devoid of the burden
of revealing truth which carries with it the potential for error, is an
independent and strictly formal process. This view is consistent with a theory
of halakhic pluralism.
The insight of Kli Hemdah that a judge who is overruled
by the majority has a right of appeal to the Great Sanhedrin only in terms of
the theoretical issue and its future application, but is denied any possibility
of actually challenging and overturning the previous application of that pesak,
represents an almost ideal balance33. It
safeguards the integrity of halakhic processes by denying an appeal on the one
hand, and at the same time it encourages and reinforces the pursuit of maximal
halakhic perfection by allowing for theoretical and future re-evaluation.
Halakhists discussed a similar
issue outside the strict confines of court decision. Does an individual have
the right to insist that he is convinced of the validity of a minority halakhic
position and thus, refuses to comply with
the majority held ruling? This question was debated by major halakhists and
possibly represents a dispute between scholars of Franco-Germany and Spain. It
too reflects several of the themes that
are crucial to our evaluation of multiple truths in halakha and of the
character of halakhic decision-making. Maharik and others who
distinguish between the monetary and
other realms due to the factor of hezkat
mamon, certainly appear to view pesak as a means of resolving doubt rather than establishing conduct
irrespective of halakhic truth34. Other halakhists reject such distinctions possibly because of
these implications.
The possibility that one might
rehabilitate a previously rejected minority opinion or rely upon one in absence
of definitive evidence to the contrary is obviously linked to our topic. The Mishnayot in Edoyot (1:5, 6) provide us with ambiguous information35:
And
why do we mention an individual opinion along with the majority, though the
halakha follows the majority? That a Court may approve an individual view and
rely on him: for a Court cannot gainsay a decision of its fellow Court unless
it is greater in wisdom and number….
R.
Yehudah said, If so why do we mention an individual view along with the
majority unnecessarily? That if a person says, So I have a tradition—he will
say to him, You heard it as the opinion of so-and-so.
Tosafot
Sens interprets the mishna as follows36:
Although
the minority view was not accepted when initially proposed, if a majority of
the scholars of the next generation agree to the rationale that underlies this
position, it is established as the normative halakha. The entire Torah was
revealed to Moshe with a range of perspectives yielding opposing conclusions.
He was told that the majority position prevails, but that both views retain
their status as divre Elokim hayyim.
According to this interpretation
the mishna refers to a previously minority opinion which has now achieved
majority backing and whose implementation is, in fact, based on the principle
of majority rule. The issue is simply how to justify the overturning of a
previously established truth. Tosafot Sens' response projects elu va-elu
divre Elokim hayyim as a real multiple truth theory which relegates halakhic decision making to legal procedure
alone, which justifies the potential for it to be overturned in manner
consistent with its own principles. This perspective effectively addresses both
the motif of multiple truths and the significance of halakhic process and
procedure.
The theme of halakhic pluralism
is also central to an issue of codification policy that was the subject of
heated debate in rabbinic circles particularly the aftermath of the appearance
of Rambam's Mishneh Torah in the twelfth century and the Shulhan Arukh in the sixteenth
century. The omission of minority opinions in these works provoked a critical
reaction in some circles. The brother of Maharal of Prague, R. Hayyim,
justified his critique of Shulhan Arukh on the basis of the inherent
spiritual value of even rejected doctrines as reflected by the concept of elu
va-elu divre Elokim hayyim.37
A passage in Massekhet
Soferim (16:5) accurately conveys the significance of the contribution that
minority opinions may offer to the halakhic process:
R.
Tanhum b. Hanilai said: If the Torah had been given as a clear-cut code, no
judge would have a locus standi in laying down a ruling; but now a judge
has a locus standi, for if he declares a thing to be clean there are
[authorities] who declare a thing in a similar condition to be unclean, and if
he decides that it is unclean there are [authorities] who declare a thing in a
similar condition to be clean.
The juxtaposition between this
statement and the very next section (16:6)- "R. Jannai said: The Torah
which the Holy One, blessed be He, gave to Moses was delivered to him in
forty-nine aspects of uncleanness and forty-nine aspects of
cleanness"—which asserts that the initial revelation entailed multiple
halakhic approaches and options, provides the justification for this ideal of
flexibility in pesak38.
The Talmudic distinction between
two categories of judicial error represents another interesting facet of
halakhic pluralism. A fundamental judicial error brought about by ignorance or
misreading of basic crucial sources (ta'ut bi-devar mishna) invalidates
the pesak. However, rulings that stem from questionable evaluations or
improper adherence to procedures designed to establish the hierarchy of
different opinions and sources (ta’ut be-shikul ha-da'at) stand, though
the judge may be liable and must compensate the victim of his miscalculation.
One might propose, at least according to some Rishonim, that the policy
of ambivalence which characterizes our approach to the category of ta'ut be-shikul
ha-da'at—in which the ruling is valid and yet one can speak of
liability—derives from its status as a possibly legitimate expression of Torah
which has been procedurally discarded in terms of conduct. From this
perspective, the details that govern and define the two categories of error are
instructive indeed.
How we define ta'ut be-devar
mishna, for example, should help to determine the boundaries of legitimate
halakhic debate. Thus, the discussion among poskim if accepted rulings
of Geonim or Rishonim should be classified as devar mishna
or as shikul ha-da'at is very significant. The distinction advanced by
some between those Geonic positions which when revealed are accepted and those
that generated opposition, is also striking. At the same time, the position of
Rosh that knowledge of an error of shikul ha-da'at prior to the
implementation of the ruling would still not render pesak invalid,
perhaps attests to a notion of legitimate pluralism at least of this variety39. Moreover, the opinion quoted in Or
Zarua that a ta’ut be-shikul ha-da'at that is motivated not by
incorrect application of halakhic rules of resolution, but by a lack of
information of the positions of some poskim does not create any kind of liability, seems to point to improper procedure
alone as responsible for this status, not any flaw in the pursuit of objective
halakhic truth40.
There are of course significant
limitations even to a pluralism grounded in equal truths. This is clearly
manifest by the distinction of ta'ut be-devar mishnah and ta'ut be-shikul ha-da'at as
we have just demonstrated, and in other contexts as well. The parameters of kim
le, for example, attest to this. Even those who accept the affectiveness of
the claim of kim le impose definite limitations. Maharik believes that
one can only resort to this claim when the minority opinion you seek to rely
upon is one of definite prominence and stature—the opinion of a Rashi or R.
Tam, etc41. There are Aharonim who require
that such a position be cited by the Shulhan Arukh or Rema. Some Rishonim
demand that at least two poskim adopt a position before one can declare kim
le. A position advocated by only one authority is too idiosyncratic to be
taken as a serious expression of Torah. Kuntres ha-Sefekot characterizes
such positions as mi'uta de-mi'uta extreme minority)—an unlikely
candidate for halakhic truth even of the pluralistic variety. Others conclude
that the precise parameters of legitimacy should be left to the intuition of
the halakhic authorities involved in the particular case since it is difficult
to quantify such a concept. The broad guidelines of restriction are in any case
apparent42.
We also encounter definite
limitations with regard to the possible permissibility of a minority judge to
falsely claim indecision in order to block what he believes to be an incorrect
majority ruling43. These, too, serve a
broader function as models of the parameters of legitimate dispute and dissent.
Clearly, pluralism is not a
blank check. There are objective limits to a sincere interpretation of sources.
The author of Arukh haShulhan (in his introduction to Hoshen Mishpat)
emphasizes that most halakhic debates revolve around details and application of
principles, not the principles themselves. This is particularly true, he
argues, about those debates that are characterized as elu va-elu divre
Elokim hayyim. R. Moshe Feinstein in the introduction to his Iggerot
Moshe cautions about the need for yir'at shamayim (fear of God, piety) and intellectual
rigor to insure valid conclusions.
At the same time, in terms of
the themes of tolerance and respect for the legitimately arrived at conclusions
of others with whom we may disagree, the implications of elu va-elu divre
Elokim hayyim are crucial. The gemara (Baba Batra 130b) informs us that
even a pesak that we reject should not be shredded inasmuch as it may be
a valid approach:
When a
legal decision of mine comes before you (in a written form), and you see any
objection to it, do not tear it up before you have seen me. If I have a (valid)
reason (for my decision) I will tell (it to) you; and if not, I will withdraw.
After my death, you shall neither tear it up nor infer (any law) from it.
"You shall neither tear it up" since, had I been there, it is
possible that I might have told you the reason; (131a) "nor enter (any
law) from it"—because a judge must be guided only by that which his eyes
see.
R. Feinstein suggests that the
underlying principle of elu va-elu divreElokim hayyim would demand that we treat a rejected
opinion relating to a halakhic concept—as opposed to the pesak referred to in
the Talmudic passage—with a full measure of reverence even if we were familiar
with and still not convinced by its argument. The climate of debate between Bet
Shamai and Bet Hillel as related in Yevamot (13b-14b) eloquently expresses this
theme:
Though
these forbade what the others permitted, and these regarded as ineligible what
the others declared eligible, Bet Shammai, nevertheless, did not refrain from
marrying women from (the families of) Bet Hillel. Nor did Bet Hillel (refrain
from marrying women) from (the families of) Bet Shammai....
This
is to teach you that they showed love and friendship towards one another, thus
putting into practice the scriptural text," Love ye truth and peace."
The gemara in Eruvin (13b), the very source of elu va-elu divre Elokim hayyim, concludes that the halakha is in accordance with Bet Hillel
precisely because they displayed greater fidelity than Bet Shammai to this theme
of respect:
Since,
however, "both are the words of the living God", what was it that
entitled Bet Hillel to have the halakha fixed in agreement with their rulings?
Because they were kindly and modest, they studied their own rulings and those
of Bet Shammai, and were even so (humble) as to mention the actions of Bet
Shammai before theirs.
This is a motif which should
guide us in relating to other communities and their distinctive customs and pesakim.
Finally, it should be stated
emphatically that elu va-elu divre Elokim
hayyim should never be used as an excuse for complacency or mediocrity.
Even as we encounter equal truths we must aspire to pursue our own conviction
of ideal truth culled from and on the basis of insights that we form from the
wealth of legitimate perspectives that we confront. Our pursuit should be
intensified and enhanced by these exposures. In this way we will hopefully
emerge with the concept of pluralism beautifully depicted by the Arakh ha-Shulhan in his introduction to Hoshen
Mishpat:
The
debates of Tanaim and Amoraim and Geonim in fact represent the truth of the
living God. All of their views have merit from a halakhic perspective. In fact,
this diversity and range constitute the beauty and splendor of our holy Torah.
The entire Torah is called a song whose beauty derives from the interactive
diversity of its voices and instruments. One who immerses himself in the sea of
Talmud will experience the joy that results from such rich variety.
Torah,
then, is to be perceived as a harmonious symphony enriched by the diversity of
its instruments and variations and bearing the singular message of devar
haShem.
1 A convenient summary of
different approaches and orientations regarding the Double Truth theory can be
found in The Encyclopedia of Philosophy (NY 1967), vol. I, pp
223-226. See also Etienne Gilson, History of Christian Philosophy in the Middle Ages (New York, 1955), and C. Touati,
"Verite philosophique et verite prophetique chez Isaac Albalag,"
REJ 71 (1962), pp 35-47.
2 Norman Lamm has proposed that
Niels Bohr's Theory of Complementarity in nuclear physics may be a more
accurate analogue to the notion of legitimate epistemological and ontological pluralism.
This suggestion is articulated in his recently published Torah Umadda. The Encounter of Religious Learning and Worldly Knowledge in the
Jewish Tradition (New Jersey: Jason Aronson Inc., 1990), pp.
232-236.
3 Obviously the precise status of
aggadot and midrashim constitutes a complex issue and one which is very much
reflective of the overall orientations of the various theorists themselves.
Thus, any serious analysis of the topic would require an elaborate and
comprehensive independent treatment of the sources. See Marc Saperstein, Decoding of the Rabbis (Boston: Harvard U. Press, 1980), pp.1-20 for a summary of basic rabbinic
perspectives on aggadah. For our specific purpose in this context, one should
see the famous formulations of Rav Sherira Gaon and Rav Hai Gaon as they are
recorded in S. Albeck, Sefer haEshkol
(Jerusalem, 1984), vol. I, Hilkhot Sefer Torah, pp. 157-158 and in B. Levin, Ozar
haGeonim, Hagiga (Jerusalem, 1932), no. 66-69, pp 59-60. One should
note in particular the intriguing possibility advanced by R. Hai Gaon that the
stature of Talmudic aggadot exceeds that of aggadot whose origin is exclusively
midrashic. Nevertheless, even Talmudic aggadot will not be binding, if they do
not conform to logic and intuition based on the principle of àéï ñåîëéï òì
àâãä (see
also Yerushalmi, Peah 2:6). See also
the celebrated passages in Maimonides' Introduction to Perek Helek (Y.
Kafin, Perush haMishnayot laRambam (Jerusalem, Mosad haRav Kook, 1965),
vol. II, pp. 136-137) where Rambam describes three basic approaches to rabbinic
aggadah, associating himself with the more flexible interpretive posture. Some
of the literature of the Maimonidean controversies (of 1232 and 1305) revolved
around the legitimacy of this view. (See also Yoreh De'a [179:12] for an
example of an emphatic critique of Rambam's philosophic posture.)
The
controversial formulations of Nahmanides in his polemic with Pablo Christiani
(Barcelona, 1263), in which he sharply downgrades the significance of
midrashim, is also relevant to this topic. He declares for example: åæä äñôø îé ùéàîéï áå èåá, åîé ùìà éàîéï áå ìà éæé÷, and even more strikingly: åòåã àðå ÷åøéï àåúå äâãä, øåöä ìåîã ùàéðï àìà ãáøéí ùàãí îâéã ìçáøå [Vikuah haRamban in C. Chavel, Kitve
haRamban (Jerusalem, 1963), p.308] There is a whole literature which
debates the extent to which these comments should be perceived as accurately
reflecting Ramban's authoritative position, or alternatively should be viewed
as an insincere but strategic response motivated by the circumstances of
Jewish-Christian disputations in which aggadot where often used by Christian
advocates to establish the authenticity of their claims. See, for example, the
comments of Rabbi Chavel ad loc., Y. Baer in "LeBikoret haVikuhim shel R.
Yehiel miParis veshel haRamban," Tarbiz
2:2 (193), and S. Lieberman in Sheki'in (Jerusalem, 1970), pp. 81-83.
4 Bemidbar
Rabba 13:15. Cf. Responsa of
Radvaz (Venice, 1749) 3:643. Radvaz posits that the
multiplicity of legitimate meanings of Torah is
responsible for the text being unencumbered by nekudot and te'am'im
which would inhibit many possible readings, though these symbols signal the
proper method of public reading kri’at haTorah and are of
Sinaitic origin.
5 Introduction to Sefer haH'inuk
and mizvot 95, 98.
6 R. Shatz, ed., HaKaballah beProvence:
Lectures of Gershon Scholem- 1963 (Jerusalem: Akadamon,
1979), pp. 5-21.
7 Introduction to Net'ivot haMishpat
on Hoshen Mishpat.
8 Kidmat haEmk
the introduction to Neziv's commentary on She'iltot deRav Ahai
Gaon (Jerusalem, 1961), pp. 18-19.
9 Berakhot 2a, 3a, 4b.
10 Tosafot, Sanhedrin
17a, s.v. ùéåãò ìèäø àú äùøõ
11 R. Moses Isserles, Responsa
of Rema (Jerusalem, 1977), no. 107.
12 R. Moshe Feinstein, lggerot
Moshe (New York, 1982), 4:9, 24.
13 Rashi, Ketubot 57a, s.v. ÷î"ì.
14 This view is apparently based on
the formulation in Massekhet Soferim (16:6). See Talmud
Yerushalmi Sanhedrin (4:2) where an important aspect of this theme is
expressed in a slightly different context.
15 For an interesting discussion of
this basic perspective see the article by Rabbi Yechiel Michal Katz, “åçéé òåìí ðèò áúåëðå- æå úåøä ùáòì ôä” Sefer Yevul Ha Yovlot (New York, 1986),
pp. 346-360 and the sources cited therein.
16 This view combined with the
notion of exclusive human responsibility for the halakhic process as reflected
by the principle of lo bashamayim hi (see Baba Meziah
59b) represents the conceptual underpinning for the somewhat radical view of
halakhic autonomy that is manifest in its independence from even Divine
interpretation and interference. This doctrine is articulated by Derashot
haRan, (ed. L. Feldman), and in the famous introduction to the Ketzot
haHoshen on Hoshen Mishpat in his analysis of the concept
of halakhic hiddush
17 See, for example, Shemot Rabba
41:6 [on Shemot 31:12]: åëé ëì äúåøä ìîãä îùä? àìà ëììéí ìîãäå ä÷á"ä ìîùä... ëëìúå
ìãáø àúå. This position is
very clearly formulated by R. Yosef Albo in his Sefer halkarim 3:2 and
may represent Rambam's view as well. See Responsa of Havot Yair (Jerusalem,
1973), 481 (Cf. Maharatz Hayot, Torat haNevi’im, ch. 4, Ma'amar
Torah Shebe'al Peh.)
18 Introduction to Yam shel Shlomo
on Baba Kama.
19 Maharal of Prague, Be'er
haGolah (Jerusalem, 1971), pp. 19-20. See my article, "Personal
Initiative and Creativity in Avodat Hashem" in Torah U-Madda
Journal, ed. Jacob J. Schacter, vol. I (1989), pp. 79-83.
20 See supra, note 16.
21 Sanhedrin 88b.
22
Introduction to Yam shel Shlomo on Baba Kama; Introduction to Arukh
ha Shulhan on Hoshen Mishpat.
23 Ramban al
haTorah, Devarim 21:18. Cf. Perush haRadvaz on Rambam, Mishneh
Torah, Hilkhot Mamrim 3:8.
24 Sifre and Ramban
al haTorah, Devarim 17:11. This theme is, of course, both crucial
and controversial in terms of its precise parameters and therefore its wider
implications. It requires extensive clarification. I have cited one formulation
in this context in order to highlight a particular perspective, but it is by no
means the only approach to this topic. See also Yerushalmi Horayot (1:1)
and Rabbi Elhanan Wasserman, Kuntres Divre Sofrim, no. 4,
in Kobetz Shi'urim, vol. 2 (Tel Aviv, 1963), pp. 106-109. One
should also contrast Ramban's position with that of Abravanel, Devarim 17:8 and
the rationale provided by Sefer ha H'inukh, no. 508. Kli Yakar
(ad loc.) directly links the Sifre's doctrine with the
principle of elu va'elu divre Elokim hayyim.
Professor Menachem Elon points to the stark contrast between halakha's view of
rabbinic license of interpretation and sixteenth and seventeenth-century
English Law which in theory severely limited such flexibility (Menachem Elon, Hamishpat
haIvri [Jerusalem, 1978] vol. I, p. 229, n. 24).
25 Kidmat haEmek,
pp. 6-7.
26 Derashot haRan,
Derush 12, pp. 212-213. He projects the principle of ahare rabim le-hatot
as the basis for this, rather than lo tasur. See also Abravanel
on Devarim 17:8.
27 Sefer haHinukh, no. 508.
He perceives this as an extension of lo tasur.
28 This position is also recorded by
Kuntres haSefekot (6:2). [This work was authored by the brother
of the Ketzot haHoshen and is printed in many editions of the
standard Hoshen Mishpat or Ketzot haHoshen.
29 R. Jacob Emden, She'elat Ya’avetz
(Lemberg, 1884), no. 153.
30 Pithe
Teshuva, Hoshen Mishpat 18:4, 8. The background to this issue is the
sugya in Sanhedrin 5b.
31 Tosafot, B.K. 27b s.v. ÷î"ì Tosafot, Sanhedrin 3b, "áãéðé îîåðåú", Hidushe haGra
at haShas, B.K.
27b, "áòðéï
àéï äåìëéï áîîéï àçø äøåá" Kuntres
haSefekot 6:2.
32 Rabbi Jacob Emden, She’elat
Ya’avetz, no. 157. Compare
this view to the positions regarding majority rule outlined in Rabbi R.
Margaliot, Margalyot haYam al Sanhedrin (Jerusalem,
1977). Sanhedrin 40a, no. 22, pp. 163-164
33
Keli Hemda al ha
Torah, Devarim 17:8, pp.
106-109. C.f. Margaliyot haYam, Sanhedrin 2a, no.
51.
34 Joseph Colon, Responsa of
Maharik (Jerusalem, 1973), no. 14.
35 See also the interpretation of Or
Zarua (Bnei-Brak, 1958), I, Hilkhot
Shevi-it ve-Hadash, no.
328, and Sheiltot de-Rav Ahai Gaon Shemot
no. 36.
36 Tosafot
Sens, Eduyot (1:4).
37 Rabbi Hayyim b. Bezalel, Vikuah Mayim Hayyim
(Amsterdam, 1712), 5b. For
a further discussion of this position see my article in Torah U-Madda
Journal (cited in n. 19), pp. 84-85.
38 Cf. Yerushalmi, Sanhedrin
4:2.
39 This position is disputed by
Ramah, see Tur, Hoshen Mishpat no. 25. A comprehensive analysis
is required of the full range of perspectives regarding the subtle criteria
that differentiate ta’ut bi-devar mishna from ta'ut be-shikul
ha-da'at and of the implications for the relationship of the twin themes
of authority and autonomy in pesak that issue from these perspectives. I
hope to address this topic elsewhere.
40 Or
Zaru'a, Sanhedrin 5a.
41 Responsa of
Maharik, no. 94:6.