On Tradition and Dynamism: E. Autonomy in Halakhic Ruling (Column 626)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the four previous columns I presented two conceptions of tradition: a rigid tradition (of the cedar) that advocates the transmission of information through a hollow conduit, and a dynamic tradition (of the reed) that advocates transmitting information together with its processing, interpretation, and refinement. I argued that as a matter of fact it is clear that tradition is dynamic (the “broken telephone” phenomenon), and one who thinks otherwise simply lives by a different ethos—indeed, in an imaginary world. He ignores, or at least is unaware of, the dynamism that is necessarily embedded in every tradition. I further argued in favor of the dynamic conception (beyond the fact that it is an inescapable reality) that it also has two advantages: (1) Instrumental— it aids survival and coping with changing opinions and circumstances. (2) Substantive— it helps reveal additional facets within the same tradition of which we were previously unaware. In many cases these additional facets are revealed (or erupt) through disagreement and plurality of views. After addressing the instrumental advantages, in the previous column I began to discuss the substantive advantages. My claim was that dynamism adds to and refines the tradition, and living by the ethos of a frozen tradition carries non-trivial costs. In this column I will continue to treat the substantive advantage of a dynamic tradition—this time through the value of autonomy. Over the course of the column I will discuss autonomy per se, and at the end I will return—through that lens—to show yet another aspect of the substantive advantage of a dynamic tradition.

Back to the “These and These” (elu ve-elu) sugya

In the previous column I presented two readings of the “elu ve-elu” passage in Eruvin: a pluralistic reading and a monistic one. In the monistic reading, like that of R. Yosef Karo, the assumption is that there is a halakhic truth, and the reason the law was decided in accordance with Beit Hillel is that they were closer to the truth. The methodology of weighing the opposing positions before forming my own brings the person or group closer to the truth, even if their abilities are inferior to those of their opponents. The remaining problem is how we are to understand the first clause of the bat kol: “These and these are the words of the living God.” If only Beit Hillel possess the truth, in what sense are the words of Beit Shammai also the words of the living God?

I explained that the intent is that the reasons on both sides are correct, but that in practice there is a dispute whose root lies in the weight assigned to each consideration. Here there is only one truth. This reading of “these and these” is not pluralistic; it does not point to a multiplicity of truths. It is monism: there is only one halakhic truth, except that it is a truth with many facets. From this follows a harmonistic attitude toward the plurality of opinions, according to which each of them grasps one aspect of the full truth. Harmonism is a refined form of monism. There is a single halakhic truth, only it is multi-faceted and composed of a synthesis of all of them.

However, this picture would seem to require unifying the ranks after the halakhic decision. Once it has been clarified that the truth lies with Beit Hillel, Beit Shammai too should act like them. As a matter of fact, that was not the case. Beit Shammai continued to act according to their understanding, and the Talmud appears to accept that as legitimate. So too with respect to halakhic disputes in general. Even if there is no clear halakhic decision (by a bat kol or by a vote in the Sanhedrin), the assumption still appears to be that only one side is correct and the other is mistaken. If so, it is unclear how one can derive from here a tolerant and autonomous conception whereby each person should act in accordance with his understanding. To understand this, I now take one step further and argue that beyond monism there lies here a tolerant conception, and that it has nothing to do with pluralism. I elaborate on this in my article, “The Price of Tolerance,” and I will briefly survey it here.

On tolerance and pluralism

In our common discourse the terms “pluralism” and “tolerance” are treated as almost synonymous. These are approaches that favor “live and let live,” reject coercion, and encourage each person to act in accordance with his understanding. But the basis for this similar behavior in the two pictures differs—indeed, is quite the opposite: the pluralist behaves tolerantly toward other views because in his opinion they are no less correct than his own. He espouses a multiplicity of truths and does not accept a single exclusive truth. If so, why would he impose his view on others?! If they are not mistaken, there is no reason to coerce them not to act that way. By contrast, the tolerant person relates tolerantly to other views and behaviors because he upholds the value of autonomy. In his view it is every person’s right and duty to act according to his best judgment and understanding, even if he errs. Therefore, although he believes the other is mistaken (for he is a monist), he will generally not coerce him to act otherwise.

We must understand that these concepts belong to different semantic fields: tolerance belongs to the moral lexicon. One who behaves tolerantly does so because he is committed to the value of tolerance, and in his view there is moral value in acting thus. Consequently, such behavior earns moral credit, and intolerant behavior is morally reprehensible. By contrast, pluralism is a philosophical-epistemic conception according to which there is not just one truth (a multiplicity of truths). It is easy to see that pluralism has no connection to morality. Either you think there is one truth, or you don’t. One view is no more or less moral than the other, for this is a factual question. Therefore a person’s pluralism does not earn him moral credit, since it is not a value but a philosophical stance.

From the description thus far one might have derived a complete disconnect between these two terms or axes. One axis (tolerance–intolerance) belongs to ethics, and the other (pluralism–monism) to philosophy; therefore, ostensibly, a person could be a tolerant monist or intolerant monist, and a tolerant pluralist or intolerant pluralist. But that is a mistake. Despite being two parallel axes, there is a connection between them. Beyond the fact that they are not identical, they are not disconnected but actually opposed. Tolerance necessarily requires monism, for a pluralist cannot be tolerant in the moral sense. As I explained, if you are a pluralist then you do not think the other is mistaken; if so, you have no reason to coerce him. Therefore your refraining from coercion does not earn you moral credit. The conclusion is that as a pluralist you cannot be “tolerant.” Moral credit for tolerance accrues only to one who restrains himself and, although in his view the other is mistaken and his error is harmful and he cares about the other, nonetheless chooses not to coerce him—because he respects his autonomy. Tolerance is grounded in the value of autonomy, that is, respect for the other’s autonomy.

Therefore a tolerant person is always a monist—he believes in a single truth (and if he thinks X, then whoever thinks otherwise, in his view, is mistaken). Of course the converse connection does not necessarily hold: a monist can be tolerant or intolerant. The fact that there is only one truth can lead to tolerance (respecting the other’s autonomy) or to intolerance (not respecting it). We thus learn that there are only three possibilities, not four: pluralism, intolerant monism, and tolerant monism. The behavioral similarity exists between tolerant monism and pluralism: both do not coerce others, but for different reasons. In contrast, intolerant monism manifests in a completely different practical posture—it favors imposing the truth on others.

It is important to note that I do not mean to claim that a monist, tolerant or not, is necessarily convinced he is right. A monist need not be arrogant or overconfident. He merely holds that if to the best of his judgment X is correct, then to the best of his judgment anyone who thinks “not-X” is mistaken. Contrary to what you hear in every studio or panel, this is elementary logic, not immoral condescension (paternalism). The pundits assume implicitly that pluralism has moral value; it does not. Of course one can refrain from coercion as a monist—not out of respect for the other’s autonomy but because I am uncertain that he is mistaken. But that, too, has no moral significance. In my view such non-coercion resembles pluralistic forbearance. I am speaking of a monist who firmly believes he is right and the other wrong. He can never be absolutely certain of it, of course, but he is sufficiently convinced to have justification to impose his view on others. Nevertheless, he refrains from doing so because he respects their autonomy—that is, because of the value of tolerance. Only such a person deserves credit for his tolerance.

Between tolerance and pluralism in practice

In my aforementioned article I pointed out that there are practical differences between pluralism and tolerant monism. I showed two principal differences: openness and the radius of tolerance. In the pluralistic picture there is no value in listening and openness, since the foundation of that picture is that we have no path to reach the truth. Each is as right as his fellow—so what is the point of listening to him?! By contrast, in the tolerant picture there is value in openness, i.e., in listening to the other. Because in my view there is a single halakhic truth and it is accessible to me, but to the same degree I am no braggart who thinks the whole truth resides with me, there is great value in hearing other opinions and arguments (“150 reasons for the other side”) in order to reach a more correct and reasoned decision. As we saw with Beit Hillel, such a methodology draws me closer to the truth.

The second difference between pluralism and tolerance lies in the existence of a certain radius of tolerance. In a pluralistic worldview, everyone is right. I do not coerce others because I do not think I am more right than they are. If I am a thoroughgoing pluralist, this has no limit. Every position, however distant, is entitled to the same treatment, for I can never determine that I am right and they are wrong. The radius of “tolerance” (i.e., non-coercion) is infinite. By contrast, in a tolerant worldview the radius of coercion is finite. There is a certain range beyond which I will no longer behave tolerantly and will impose. Remember that the substrate underlying tolerance is monistic: there is a single halakhic truth; hence, in my view the other is mistaken. Although I generally behave tolerantly toward those with other views, that is not because I have no reason to coerce (as with the pluralist) but because of the value of tolerance. This means that tolerance involves a certain tension: on the one hand, the need to show the other his error and prevent harm; on the other, to preserve and respect his autonomy. Therefore it is to be expected that there will be a certain radius beyond which I will no longer be tolerant. Beyond that radius, the costs of the error outweigh the value of tolerance and respect for his autonomy. I suggested two metrics that affect the radius of tolerance: the cost, and the effort invested in forming the position.

Consider a case where I see that my son is about to become addicted to drugs. I assume that even the greatest “tolerationists” will not be tolerant regarding this. Why? Because the price is extremely heavy and almost irreversible. In such situations the tolerant person will permit himself a measure of paternalism. The value of tolerance here confronts the cost, and sometimes the cost prevails. Where the cost is commensurate with the value of tolerance—that is where the radius passes. Of course one who defines himself as a pluralist can also coerce another in such cases; but that means, on the map I’ve drawn, that he is not a pluralist but a tolerant monist (at least with respect to that question).

Another criterion lies in the question of how much you examined opposing positions when forming your own. One who formed a position rashly and unseriously, without thought and without acquiring relevant knowledge, cannot expect his position to be respected. To earn respect one must pay a price. A small child who forms a view on a difficult issue without any examination and without knowledge does not deserve respect for his position. Likewise, a person who holds a controversial view without examining the arguments for other positions and against his own—does not deserve respect. In such a case I will not behave tolerantly.

Back to the Beit Shammai and Beit Hillel dispute: between legitimate and correct

These are the reasons that although halakhah operates within the framework of “these and these are the words of the living God,” it is not tolerant with an infinite radius. Errors whose costs are too high, or errors that stem from laziness and a lack of serious examination (for example, halakhic positions advanced by someone who is not a Torah scholar), do not deserve tolerant treatment. When we say “these and these are the words of the living God,” we do not mean every position of every person. Beit Hillel and Beit Shammai were serious Torah scholars and advanced correct arguments. They did not merely form positions rashly (though, as noted, Beit Shammai did not sufficiently weigh Beit Hillel’s view), and therefore they deserve tolerant and respectful treatment. Their words are “the words of the living God” even if they are not the ultimate truth.

Their arguments are correct, and even if the weight they assigned to those arguments led to an erroneous bottom-line ruling, that ruling deserves respectful, tolerant treatment. That is the meaning of “these and these are the words of the living God” in the monistic reading. Not that both are correct. The reasons of both sides are correct, and both sides’ rulings deserve tolerant treatment (but not pluralistic, because both are not correct). A ruling based on a problematic weighing of correct considerations is legitimate and deserving of respect—even if in my view it is wrong.

This means there is a distinction between a legitimate halakhic ruling and a correct halakhic ruling. “The words of the living God” does not necessarily mean truth. There is only one truth; therefore only the words of Beit Hillel are true. But the words of Beit Shammai are legitimate. One might say they are a legitimate mistake. From this you can understand that, from the perspective of tolerant monism, the space of halakhic positions can be divided into three nested categories. The innermost circle is the truth. The circle around it is the legitimate errors that deserve tolerant treatment. Outside those two lies the entire space of illegitimate errors—those that do not deserve tolerant treatment. “These” and “those” as “the words of the living God” speaks about the two inner categories: the innermost are “the words of the living God” in the sense of truth (Beit Hillel’s view), and the surrounding one (Beit Shammai) are “the words of the living God” in the sense of a legitimate error.

The advantage of a dynamic tradition lies in the emergence of that second circle, which brings forth additional arguments that—even if rejected in the present discussion—have truth in and of themselves (“one hundred and fifty reasons to declare the creeping creature pure”). Moreover, these reasons can radiate into halakhic ruling itself in other situations or in related topics. Sometimes there will be a creature that is not exactly a sheretz and we will need to consider whether it is impure or pure. In such cases it may be that the reasons to declare it pure will outweigh those to declare it impure, and we will rule it pure. Correct reasons are not only of theoretical or meta-halakhic importance; within halakhic ruling itself they can sometimes be employed. Therefore the dynamism of tradition enriches halakhic discourse and brings it closer to the truth, for it enables the reasons “to purify the creeping creature” to appear on stage and be examined. But we must not err by including in this space also the outermost circle—the distant mistakes. That is what everyone rightly fears when they espouse a frozen tradition (of the cedar). Their error is that in this fear they ignore the second circle that they risk losing if they adopt an overly frozen stance. Below I will touch on yet another implication of this picture for the substantive advantage of a dynamic tradition.

Halakhic examination

In my aforementioned article I discussed how these three conceptions can be examined with halakhic tools. I wrote that in my view reading the introductions to halakhic works or books of thought is not an efficient method. One can find everything there, and the authors are not truly committed to what they write there as they are in their halakhic writing. There you will find more clever homilies than an orderly method. To examine such meta-halakhic questions more precisely and bindingly, it is preferable to look for halakhic ramifications and to check the opinions of the Talmud and its commentators regarding them, and from that to derive the meta-halakhic conception they presuppose.

The question I would ask to test pluralism versus monism as a meta-halakhic stance is the following: what about causing another to stumble in an act that, according to the one caused to stumble, is prohibited—while according to the one causing it is not? Suppose Reuven and Shimon disagree whether X is permitted or prohibited to eat. Reuven, who holds it is permitted, causes Shimon to stumble and gives him X to eat, although by Shimon’s view it is prohibited. In such a case, has Reuven transgressed “placing a stumbling block before the blind” (lifnei iver)? If you are a pluralist, then this causing to stumble must be prohibited. In a pluralistic worldview there is no single halakhic truth. If so, X is prohibited for Shimon and permitted for Reuven. Then it is obvious that Reuven may not cause Shimon to eat X. But if you are a monist, then by your view it is specifically permitted for Reuven to cause Shimon to stumble, since Shimon, who holds it is prohibited, is simply mistaken. I am not causing him to transgress a prohibition but to perform a permitted act. Note the surprising phenomenon: pluralism leads to halakhic stringency, and monism to leniency.

Happily, the Talmud contains just such a halakhic sugya, in Sukkah 10b, and I discussed it in detail in Column 503. The question concerns sitting under the sukkah decorations when they are more than four tefachim distant from the s’chach. R. N. holds that it is permitted to sit beneath them and he is considered as eating in the sukkah, while R. H. and R. Ḥ. hold that it is prohibited. We saw that from the words of the Ritva there it emerges that such a case is a litmus paper that can distinguish among the three conceptions I described: (1) In the pluralistic picture it is prohibited to cause the other to sit in such a sukkah, even if I notify him and draw his attention to the fact that the decorations are distant from the s’chach. (2) In the monistic–intolerant picture it is permitted to cause him to do so and there is no need to notify him that the decorations are distant. (3) In the monistic–tolerant picture it is permitted to cause him to sit in such a sukkah but only if we notify him that this is the case. The Ritva proves, by analyzing the sugya in Sukkah and comparing it to a parallel sugya in Ḥullin, that the law follows (3)—that is, we have proof that the Talmud conceives the law as monistic-tolerant.

This means that halakhah espouses autonomous action: each person is obligated to act according to his understanding, even if he is mistaken, and I must respect that; therefore it is prohibited for me to cause him to stumble even if in my view the matter is permitted.

Autonomy in ruling

In another article, “Autonomy and Authority in Halakhic Ruling,” I addressed the obligation (not only the right) to rule autonomously. There I brought sources from the greatest decisors who emphasized this obligation, and ultimately concluded that halakhic ruling is composed of two types of considerations: truth and autonomy. A person must strive for halakhic truth (monism), but he is meant to act according to his own grasp of that truth (autonomy). Even in a hypothetical case where the truth appears to him to be X although he can assess that he is probably mistaken, he must still do X.

We can see this in the Gemara on that very page—right above the “elu ve-elu” sugya (Eruvin 13b), where the following dictum appears:

“R. Aḥa b. Ḥanina said: It is revealed and known before Him Who spoke and the world came into being that there was none in R. Meir’s generation like him. So why was the halakhah not fixed in accordance with him? Because his colleagues could not comprehend the depth of his thought: he would declare impure pure and show reasons, and declare pure impure and show reasons. It was taught: His name was not R. Meir but R. Nehorai; and why was he called R. Meir? Because he would ‘illuminate’ (me’ir) the eyes of the sages in halakhah. And his name was not Nehorai but R. Neḥemiah; and some say his name was R. Elazar b. Arach; and why was he called Nehorai? Because he would ‘enlighten’ (manhir) the eyes of the sages in halakhah. Rava said: I am sharper than my colleagues because I saw R. Meir from behind; and had I seen him from the front I would be sharper still, as it is written (Isa. 30:20): ‘And your eyes shall see your teacher.’ R. Abbahu said in the name of R. Yoḥanan: R. Meir had a disciple named Sumḥus who would give on each and every matter of impurity forty-eight reasons for impurity, and on each and every matter of purity forty-eight reasons for purity. It was taught: There was a diligent student in Yavneh who would declare the creeping creature pure with one hundred and fifty reasons. Ravina said: I will argue and declare it pure: If a snake, which kills and increases impurity, is pure—then a creeping creature, which does not kill and increases impurity, is it not all the more so [pure]? But it is not so; it is merely an incidental pricking.”

R. Meir was extraordinarily sophisticated. He knew how to offer numerous arguments in every direction (see the previous column on the value of this; there I also brought the passage that concludes this Gemara), and he enlightened the eyes of Israel in halakhah and sharpened all around him. In light of this description, the opening is hard to understand: that the halakhah was not fixed according to him because they could not plumb the depths of his thought. If he was such a genius and Torah scholar, that would seem a reason to decide like him.

One could have understood that they simply did not know when he was offering counter-arguments for the sake of sharpening and when he was ruling practically; but it seems to me more reasonable to understand the opposite: Beit Shammai were “sharper,” and yet the Gemara there later brings that the bat kol ruled like Beit Hillel. So too with R. Meir: he was sharper than his colleagues, but because they could not plumb the depths of his thought they did not rule like him. They knew that R. Meir prohibited something, but in their view it was permitted. Now they faced a dilemma: On the one hand, they themselves reached conclusion X. On the other, R. Meir—agreed to be the greatest among them—thought Y; thus they, too, understand that the truth is likely Y. In such a case should I do X or Y? The Gemara says they ruled X even though R. Meir held Y; that is, they ruled in a way that, even by their own admission, probably did not hit the truth. Why? Because of the value of autonomy. A person must rule in accordance with his best understanding. Autonomy is no less important than truth.

In my article I brought further arguments and sources for the view that sees value in autonomous halakhic ruling. For our purposes this reflects on a similar case to that described about R. Meir, when I find myself holding a view opposed to that of the great decisors—even as I agree they are far greater Torah scholars than I. The dilemma is the same; nevertheless, I am required to rule according to my best understanding, even if I myself would concede that, relative to God’s intent, I am probably mistaken. The value of truth is no less important than the value of autonomy.

A very clear and sharp expression of this conception is found in the Maharal’s Netivot Olam, “Netiv HaTorah,” part II, ch. 15 (his words were also cited in Columns 58 and 66, and in my article on autonomy in ruling).[1] Because of the force of his words I bring them here in full:

“And further there [in Avot]: ‘One who has read and studied but did not serve a sage—R. Eliezer says: he is an am ha-aretz (ignoramus). R. Shmuel b. Naḥmani says: he is a boor. R. Yannai says: he is a Cuthean. Rav Aḥa b. Yaakov says: he is a magus.’ Rav Naḥman b. Yitzḥak said: The view of Rav Aḥa b. Yaakov is the most reasonable, for people say: ‘He mutters incantations and does not know what he mutters.’ ‘He recites and does not know what he recites.’ Explanation: One who has learned the Mishnah but did not serve a sage to clarify the reasons of the Mishnah— which is clear intellect once he has grasped the Mishnah’s reasons— such a one is called an am ha-aretz, for he has not acquired intellect. R. Shmuel added that he is called a boor, for a field that produces nothing is called a fallow field (bor), as the Targum says (Gen. 47) ‘and the land shall not be fallow (lo tevor).’ So too one who learned the Mishnah without a sage to clarify it has not reached actualized perfection to be truly wise in act; therefore he is called a boor, not having reached actualization, like a fallow field that has not borne fruit. R. Yannai said he is a Cuthean, for a Cuthean does not seek to stand upon and understand the Torah: the Cutheans did not learn Torah except what they saw before them in practice—this they did and held by; but to have the Torah as learning—this they did not have at all. So too one who learned the Mishnah without clarifying its reasons lacks Torah learning; the Mishnah is only about how to act. Therefore he is called a Cuthean, who has no Torah from the side of learning; whereas Israel are fit for Torah specifically from the side of intellect, for the intellectual Torah is suited to them in particular, as it is written (Deut. 4): ‘For what nation is so great… wise and understanding…,’ as explained earlier; Israel are distinguished to receive intellect from the Holy One, blessed be He, as they said about Israel (Berakhot 58a): ‘Blessed… who has apportioned of His wisdom to those who fear Him,’ as explained. But one who has learned only the Mishnah without the clarification of intellect—this is like sorcery, for he is speaking and does not understand what he is speaking; this is considered as if it is not Torah at all—and this is worse than all, for Torah is considered by him like sorcery, which is a low and base thing, not intellectual at all. Therefore sorcery is for women, who are weak of intellect. And this one who learned the Mishnah and does not know the Torah’s reason— it is as if Torah is to him a low and base thing without intellect, and because this is foreign and deviates from what is fitting—for the commandments of the Torah are by nature to be done with intellect—this one who learned only the Mishnah, with no clarification of intellect, is a foreign thing, like sorcery, which is a foreign act without intellect. Four things were mentioned: first, he is an am ha-aretz—he has no intellect at all; second, he is a boor—not having reached complete perfection to be actualized; third, he is a Cuthean—as if intellect does not pertain to him, he only wishes to do, but Torah learning with intellect does not pertain to them; and the fourth, he is a magus—for Torah is considered by him like sorcery, as if Torah is not intellectual, only like sorcery, which is for women, and there is in sorcery no understanding; therefore sorcery is for women, on account of the great weakness of their intellect— and thus Torah is considered by him; understand very, very well the order of these matters.”

“And further there: ‘The tannaim are “destroyers of the world.”’ Can it enter your mind?! Rather: they rule law from their Mishnah. A baraita likewise: Are they destroyers of the world? Are they not the sustainers of the world, as it is written, ‘His ways are the ways of the world (olam)’? Rather: they rule law from their Mishnah. And that which it asked, ‘Are they destroyers of the world?’ and did not answer that here we are speaking of one who did not serve a sage—this is not difficult: although he has those attributes mentioned above (a boor, an am ha-aretz, etc.), nevertheless they are not called ‘destroyers of the world.’ The answer is that they rule law from their Mishnah—that is, they rule even though they do not know the Mishnah’s underlying reason; and through this they destroy the world, for the world stands upon Torah, and this is not considered Torah when one does not know the clarified reason of the Mishnah. Torah, which is to instruct action, is the essence of Torah, and upon this the world stands; therefore those who rule from the Mishnah, not from clarified intellect, are destroyers of the world that stands upon Torah. Rashi explained that they rule law from their Mishnah and destroy the world by erroneous rulings, since they do not know the Mishnah’s reason and at times analogize it to something that is not similar; moreover they do not know the disputes among the tannaim, and thus they issue erroneous rulings. So Rashi. But this explanation is not correct at all, for the phrase ‘they rule law from their Mishnah’ implies a law that is true; it would not be fitting to say ‘a law of error,’ and it ought to have said merely that they ‘issue errors from the Mishnah.’ Rather, the explanation is as we said: the essence of Torah, when one rules law for practice, should emerge from Torah which is intellectual—this is the Talmud, which is intellectual—and from there the law for practice ought to emerge; this is certainly the sustaining of the world, which stands upon Torah. Therefore the tannaim who rule from the Mishnah are destroyers of the world. But in this generation, were people to rule law from the Mishnah, that would be sufficient, for the Mishnah is the beginning of Talmud and a start to it; but one does not rule law from the Mishnah, which was made for the Talmud, for the Talmud is the explanation of the Mishnah. Rather, they rule law from the codes (pisqim) that were composed to instruct practical halakhah and were not made to be learned but to rule from them; and this is yet further from rationality. And the early authorities, like Rambam and the Tur—although they too composed codes without the clarifications—their intent was only to indicate the final halakhah that emerges from the Talmud. But for a person to rule from them without knowing from where the law emerges—only ‘halakhah without its reason’—that never entered their minds or thought; for behold it is said here that one who rules from the Mishnah is considered a magus, as explained, and other deprecations, such as being like a Cuthean. Had the authors known that these compositions would cause people to abandon the Talmud entirely and rule from the compositions, they would not have composed them.”

Up to this point he refers to one who rules without knowing the reasons as a kind of “magus” (sorcerer), and that it is improper to do so. One could have understood that his intent is to avoid errors in ruling (for one who rules without understanding the reasons will likely err), but now come the key sentences that express his full intent:

“For it is more fitting and more correct that one should rule from the Talmud—even though there is concern that he will not go in the way of truth and will not decide the law according to its truth, that the ruling be truly according to the truth—nonetheless the sage has only what his intellect yields and understands from the Talmud; and when his understanding and wisdom mislead him, even so he is beloved before the Holy One, blessed be He, when he rules according to what follows from his intellect; and ‘a judge has only what his eyes see.’ This is better than one who rules from a composition and does not know the reason at all; he goes like a blind man in the way.”

He argues that one who rules halakhah from his own reasoning—even if he errs—is preferable in God’s eyes to one who rules from books—even if he is right. Note well: It is better to desecrate Shabbat autonomously than to keep it by blind obedience to codes. Of course, these words address only one who is of sufficient caliber; not every child should rule for himself and ignore the views of the great decisors.

Accordingly he concludes:

“And perhaps you will say: If so, in this generation, when people are not expert in the Talmud and do not know it—how shall halakhah be decided? Indeed this is difficult: Torah has been forgotten and we are not worthy to rule halakhah. All this is because none reviews his Talmud to be expert and fluent in his study, as we wrote above—our great deficiency in Torah—until our Teacher of Righteousness comes and removes folly from our hearts, and from His Torah He will show us wonders. Amen, so may it be soon in our days, amen.”

Usually when I express an autonomist position I am asked: what is the source for my words? Whence do I know that God desires autonomous ruling—especially at the expense of truth? Sticking to the great decisors is the safer path to approach truth, and one needs arguments and sources to deviate from it. The Maharal adduces interpretations of the sages’ aggadot; but as is known, I do not view these as binding sources. My answer is always that the principal source for the autonomist thesis is the very reasoning woven throughout the Maharal’s words: God gave us intellect, and that is what distinguishes us from the rest of creation. Plain reasoning says we should use it and not act like sorcerers.

Similarly one can ask: Why give us free will that enables us to choose evil? It would have been better to create human machines that obey the Torah’s commands without choice. That would optimize doing the right thing. But apparently God does not desire that. He desires truth done out of personal decision—even at the price that some will choose negatively and incorrectly. The same holds for the use of intellect. God desires that we do the truth, but wants us to do it by decision and judgment—that is, by using our intellect. The Maharal’s reliance here on the sages’ sayings is an illustration, not especially important.

The second substantive advantage

In the previous column (and in this one) we saw that the substantive advantage of a dynamic tradition is the surfacing of additional reasons that point in opposing directions. I explained that this refines the tradition rather than deviates from it, and that it has advantages for halakhic ruling. Even reasons “to purify the creeping creature” can play a role in other cases. In Column 248 I noted the possibility that the different sides in a philosophical dispute (and thus in halakhah) are sometimes not truly arguing; at times they merely enlighten one another from different angles (in the best case—sometimes it is merely misunderstanding or empty verbiage).

Now, in light of this column, we can discern an additional advantage of a dynamic tradition: the value of autonomy. Dynamism enables me to form my own position regarding the tradition, and even if I am not correct, such a position has value on the plane of autonomy. In a tradition conceived as a hollow conduit, autonomy has no meaning. You are supposed to aim at what was given originally to Moses at Sinai and what you received from your teachers. Your personal stamp has no added value. On the contrary: if you do something different, that is a deviation from the tradition. But assuming autonomy has value—as we have seen it surely does (using the intellect; not being a “magus”)—only a dynamic conception of tradition enables it to be realized in practice. In a Torah of give-and-take, each person is called upon to form a position independently out of his own judgment. Note that this added value exists even if there were no substantive value to this addition in exposing further facets of halakhic truth. Even if my interpretation is wrong, I am still obligated to act in accordance with it because of the value of autonomy. This is yet another facet of the substantive value that a dynamic conception of tradition possesses.

[1] As I explained there, these words of the Maharal are part of a polemic that he waged together with his relative (who authored an entire book on this, Vikkuach Be’er Mayim Ḥayim) and with the Maharshal against the codificatory approach of the Rema and the Meḥaber. See a description of the polemics in Menachem Elon’s Ha-Mishpat Ha-Ivri, “The Codification Controversies.”