On Tradition and Dynamism: D. An Evolving Tradition and a Multiplicity of Opinions (Column 625)

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 previous three columns I presented two conceptions of tradition: a rigid tradition (the “Cedar”) that advocates transmitting information through a hollow conduit without touching it, and, in contrast, a dynamic tradition (the “Reed”) that advocates transmitting information while processing, interpreting, and refining it. I argued that, as a matter of fact, tradition is clearly dynamic (the “telephone game”), and anyone who thinks otherwise simply lives within a different ethos and is in effect constructing an imaginary world for himself—choosing to ignore the dynamism necessarily built into every tradition. I further argued that beyond the fact that every tradition is dynamic, the tradition’s dynamism is also valuable on two levels: the instrumental—it aids survival and coping with changing ideas and circumstances and prevents explosions; and the substantive—it helps reveal additional facets within the very same tradition that we were previously unaware of. In many cases those additional facets are revealed (or erupt?) through disagreement and multiplicity of views. A dynamic tradition necessarily leads to a multiplicity of views, but—as noted—that is also the solution to it (this is its instrumental value). In the previous column I discussed the difference between ethos and factual truth, thereby clarifying the strange situation of living inside an ethos that does not reflect reality. I explained how a person can live with the feeling of a “Cedar-tradition” passing through hollow conduits, alongside the fact that this is not true and that he himself processes, interprets, and refines it. I think we all know many who live this duality to this day (all those who declare that the entire Oral Torah in all its details was given to Moses at Sinai).

In the previous columns I mainly engaged the first two conclusions: the factual claim (the telephone game) and the instrumental advantage. In this column I will begin to enter the third conclusion; namely, I will try to show that the dynamism of tradition also has a substantive advantage. This discussion is interwoven with the appropriate attitude toward multiplicity of views, since multiplicity of views is an inherent result within a dynamic tradition that evolves rather than being transmitted through a hollow conduit. Therefore, the discussion of the tradition’s substantive advantage is accompanied by a discussion of multiplicity of views. We must examine whether this is a flaw and defect in tradition or, on the contrary, an advantage.

Unwitting refinement of Torah that arises from errors: Tort liability of a custodian

In the first column I cited R. Yitzḥak Hutner’s view that although disagreement began due to a failure (the students of Hillel and Shammai who did not fully attend to their teachers), this does not contradict his claim that the outcome is positive. The multiplicity of views and interpretive diversity reveal additional facets of the issue that, within a “hollow conduit” tradition, would likely not have been revealed.

An interesting example appears in Maimonides, Hilchot Nizkei Mamon 4:4:[1]

One who entrusts his animal to an unpaid custodian, or to a paid custodian, or to a renter, or to a borrower—their liability stands in place of the owner’s; if the animal causes damage, the custodian is liable. In what case are these words stated? When they did not guard it at all; but if they guarded it with proper, exemplary guarding, and it nevertheless went out and caused damage, the custodians are exempt and the owners are liable—even if it killed a person. If they guarded it with inferior guarding: if he is an unpaid custodian he is exempt, whereas a paid custodian, renter, or borrower is liable.

Here Maimonides innovates strikingly: if the custodian guarded the animal properly and it nonetheless caused damage, the custodian is exempt but the owner (the depositor) is liable. This assertion stands in direct contradiction to the Talmud, which establishes that an owner who handed his animal over to a custodian is certainly exempt for damages caused by his animal; and when a deposit causes damage, the only discussion is the custodian’s liability. Indeed, Hagahot Maimoniyot there raises this difficulty in the name of the Tur and the Raavad:

Tur, Choshen Mishpat 397: “I do not understand his words: since they guarded it properly, why should the owners be liable?” So too the Raavad objects.

The Maggid Mishneh offers a resolution:

“One who entrusts his animal to an unpaid custodian…”—Mishnah, Bava Kamma chapter “An Ox that Gored” (44b). What our master wrote, “In what case are these words stated,” is in the Gemara on a baraita. And what he wrote, “and the owners are liable” when it was guarded with exemplary guarding—this is only with respect to damage by keren (goring), that is, matters in which it is an innocuous animal; in those the owners are liable even with exemplary guarding, as will be explained in chapter 7. But for damage by shen and regel (tooth and foot), even the owners are exempt, which is the law of the chapter’s opening (“HaKones”); and this distinction is explicit in the Gemara.

He produces an ukimta that the case concerns damages of keren alone—even though there is no hint of this in Maimonides’ words. Evidently the contradiction with the Talmud compelled him to say so, and absent that he would not have proposed such a distinction. The Lechem Mishneh elaborates objections to the Maggid Mishneh and rejects him entirely. Nevertheless, later authorities toiled to explain the Maggid Mishneh in various ways and tried to reconcile Maimonides with the Talmudic sugyot (see, for example, R. Ḥayyim’s ḥiddushim there).

However, the Kesef Mishneh on the spot quotes that Maimonides himself wrote explicitly that this is a scribal error:

“One who entrusts his animal to an unpaid custodian…” (see inside): “If they guarded it with inferior guarding, if he is an unpaid custodian he is exempt, and if he is a paid custodian, renter, or borrower he is liable.” Such is the text we possess, and the sages of Lunel asked our master: on what basis are the owners liable, since the custodians guarded it with exemplary guarding? He replied that it is a scribal error, and the true text reads: “and it went out and caused damage, the custodians are exempt; if they guarded it with inferior guarding—if [he is] an unpaid custodian he is exempt and the owners are liable; and if [he is] a paid custodian, renter, or borrower, the custodians are liable.”

Maimonides tells the sages of Lunel who queried him that this is a scribal error and even supplies the correct text—which, of course, fits the Talmud well. He explains that the case is one who handed the animal to an unpaid custodian, who is obligated only to a lesser standard of guarding, which does not suffice to exempt the owner from damages. Therefore, in such a situation the custodian is exempt but the owner is liable (because he did not perform his duty to guard his animal with exemplary guarding). If so, it would seem the commentators worked in vain: the later authorities who lengthily reconciled Maimonides and the Maggid Mishneh wrote nonsense, for the whole story rests on a printer’s error (the typesetter’s misstep). There is no such ruling in Maimonides.

My claim is that if R. Ḥayyim succeeded in constructing an explanation for “Maimonides’ position,” then although it is not Maimonides’ position (the person—perhaps the book is), nonetheless a halakhic position has been generated. One may say: it is indeed not Maimonides’ view, but it is R. Ḥayyim’s view. I can now examine whether this position seems reasonable to me, and if so—rule accordingly le-halakha. What difference does it make whether it is Maimonides or R. Ḥayyim? If it is a coherent position, the identity of the first to conceive it is of no importance. As a decisor, I must form my own stance and determine the law, and both options are before me.

But note: were it not for the printing error in Maimonides, this position would not have come into being. There are options that, at first glance, seem implausible, and therefore we would not consider them nor try to find a way to say them. Only because we thought that this is what Maimonides wrote did we go searching for a possible explanation—and to our surprise, we found one. That is, the defect and failure that led to the error in transmitting the tradition created here a new position in halakha, and that position holds water. Important commentators and decisors are prepared to stand behind it. On the assumption that this position is viable, it reveals a facet of the sugya that would not have been revealed to us but for that error. Fortunate is the typesetter through whom more Torah was revealed.

This reminds me of a correspondence that appeared in HaMa’ayan between R. Yehoshua Hutner, editor of the Encyclopaedia Talmudit, and the Seridei Esh. The Seridei Esh argued that R. Ḥayyim’s words are brilliant and sharp and resolve the difficulties in Maimonides, but they are certainly not Maimonides’ original intention. Maimonides’ phrasing indicates otherwise, and his modes of thought do not fit Brisker analysis. R. Yehoshua Hutner countered that the premises are correct but the conclusion is not: R. Ḥayyim is presenting Maimonides’ position within his own conceptual framework. Maimonides himself indeed did not think this way, but when one employs the modern lamdanic framework this is the more accurate presentation of Maimonides’ view. Moreover, in my opinion, even if Maimonides were to hear this and say he did not intend it, it may still be that R. Ḥayyim is right. His analytical tools and refined conceptual system enable him to uncover in Maimonides’ words insights and assumptions that Maimonides himself was not conscious of. This is not always the case, of course, but it certainly may be the case at least in some instances.

These two conceptions fit two phenomena relevant to our matter, and both have merit: from the Seridei Esh one can infer what we saw above—that even if R. Ḥayyim was not right that this is Maimonides’ intention, nonetheless there is a halakhic position of his own here (even if not of Maimonides). Another halakhic view has been uncovered, though it is founded on a mistaken understanding of Maimonides and is not his position. And from R. Yehoshua Hutner it follows that sometimes the “distortion” is not truly a distortion, and the tradition’s dynamism allows us to reveal dimensions that were latent within the tradition we received, but that only we have managed to expose. That is, in his view, when one looks through our conceptual system, this is also Maimonides’ own position. Either way, both agree that the academic methodology—which tries to uncover what was in Maimonides’ (the man’s) mind—is irrelevant. Halakha focuses on the book, not the person (see my article on the hermeneutics of canonical texts, and the updates in the comments there and the Q&A here). This is especially true according to my approach, which assigns no importance to who first formulated the halakhic position in question, since in the end the decision is in the hands of the decisor himself, and the different views are merely options he must weigh.

This is likely the meaning of the midrash about Moses in R. Akiva’s study hall (Menachot 29b):

R. Yehuda said in the name of Rav: When Moses ascended on high, he found the Holy One, blessed be He, sitting and attaching crowns to the letters. He said before Him: Master of the universe, who is delaying Your hand? He said to him: There is a man who is destined to arise at the end of many generations, and Akiva son of Yosef is his name; he will derive heaps upon heaps of laws from each and every crown. He said before Him: Master of the universe, show him to me. He said: Turn backward. He went and sat at the end of eight rows, and he did not know what they were saying, and his strength waned. When they reached one matter, his students said to him: Rabbi, from where do you know this? He said to them: It is a law given to Moses at Sinai. His mind was set at ease. He returned and came before the Holy One, blessed be He, and said before Him: Master of the universe, You have such a man, and You are giving the Torah through me?! He said to him: Be silent; thus it arose in [My] thought.

Moses comes to R. Akiva’s study hall and understands nothing. At the end of the story it says that all these notions Moses did not grasp are “a law to Moses at Sinai.” There are matters within the laws received from Moses that R. Akiva understood but Moses himself did not. Yet, in the end, Moses’ mind is set at ease—he understands that R. Akiva’s formulations indeed reflect his own position, i.e., the laws he received from the Holy One. There are elements in the tradition that Moses transmitted that he himself did not grasp, and only R. Akiva, with his modern tools, managed to uncover them. But in the end it emerges that he uncovered them correctly—and did so better than Moses himself.

I believe this midrash comes to teach exactly the lesson we have seen here. A dynamic tradition is not merely a tool for coping with crises and disagreements. It indeed creates disagreements and changes within the tradition, but in many cases it reveals facets of the tradition that were unknown until that point—even to the transmitters of the tradition in earlier generations themselves. In a frozen “hollow conduit” tradition this cannot happen; had we insisted that students measure up internally and externally (as per R. Gamliel and R. Elazar as described in the previous columns), we would have remained with the initial insights and conceptions—without the refinements and expansions effected by the dynamic tradition. The Torah transmitted through such a tradition is poorer and narrower. The tradition’s dynamism enriches and refines it, and of course also generates more approaches and opinions. Disagreement inherently accompanies every dynamic tradition. Sometimes it happens intentionally, and sometimes “by inadvertence.” My claim is that there is an advantage here, for yet another facet of the law has been revealed—one that would not have been uncovered without the failure in transmission. This is not a corruption of the tradition but its expansion and refinement.

We now arrive at the very question of disagreement and multiplicity of views.

The “Elu ve-Elu” sugya in Eruvin

The Talmud in Eruvin 13b describes the resolution of the long dispute between Beit Shammai and Beit Hillel:

R. Abba said in the name of Shmuel: For three years Beit Shammai and Beit Hillel disagreed—these said, “The law follows us,” and those said, “The law follows us.” A bat kol (heavenly voice) went forth and said: “These and those are the words of the living God, but the law is like Beit Hillel.” Since both are the words of the living God, why did Beit Hillel merit that the law be fixed like them? Because they were pleasant and humble, and they would teach their own words and the words of Beit Shammai—and not only that, they would even place the words of Beit Shammai before their own.”

On the protracted dispute and its consequences, I discussed in Column 623. There we saw how such a situation developed and how socially precarious the situation was, escalating due to the dispute. Yet several questions remain. First, why did they not resolve it by a vote, following the majority? There is a verse, “After the majority you shall incline,” and presumably both schools knew and accepted it. In the first column I explained the impasse as arising when two separate academies formed with no discourse between them. Still, one would expect a vote to be held and the majority followed. Thus, the difficulty from “after the majority” remains. Second, how could they follow the decision of a bat kol, when the rule is “It is not in heaven,” and we do not heed a bat kol (the oven of Akhnai, Bava Metzia 59)—see also Column 623? Third, the bat kol seems self-contradictory: on the one hand, both are the words of the living God, yet on the other hand, the halakha follows Beit Hillel. If Beit Hillel are right, how are Beit Shammai’s words also the words of the living God? And if both are right, why is the halakha like Beit Hillel?

Regarding the first question, the Talmud (Yevamot 14a) explains: Beit Shammai were sharper, but Beit Hillel were more numerous. It adds that there was a dispute whether the majority to be followed is a majority of wisdom (quality) or a majority of people (quantity) (see Columns 69 and 79). Beit Shammai argued we must follow the majority of wisdom and thus the law follows them; Beit Hillel argued the determinative majority is numerical and thus the law follows them (see Column 195). This creates a dead end: there is no way to resolve the disputes between the houses. Even if we vote, the controversy remains—do we follow the qualitative or quantitative majority? Thus, the dispute could not be resolved by ordinary halakhic means, and following the majority was not a practical option.

Regarding the second question, Tosafot s.v. kan in Eruvin 6b already raise it:

“Here—after the bat kol.” If you will say: why do we not hold like the bat kol in the case of R. Eliezer and the oven (Bava Metzia 59)? One can say that there it issued only in his honor, as is evident there; and furthermore, there it was against the many, and the Torah says, “After the majority you shall incline.” But here, on the contrary, Beit Hillel were the majority, and the bat kol was needed only because Beit Shammai were sharper. And if you will say: what then does R. Yehoshua (“we do not heed a bat kol”) say? Did he not speak only about R. Eliezer’s bat kol? One can say that “It is not in heaven” implies we do not heed any bat kol at all.

All these answers are quite strained. But to be honest, the entire question seems odd: the rule “It is not in heaven” and “we do not heed a bat kol” means we must decide by halakhic rules, not resort to heavenly sources. But, as we saw, here the halakhic rules were inapplicable; the dispute could not be decided by regular halakhic tools. In such a situation there is no other recourse, and thus the instruction to ignore a bat kol was surely not said here. The bat kol issued precisely because, on the halakhic plane, the situation was jammed with no way out.

The third question concerns the solution offered by the bat kol, which seems internally contradictory. To answer it we must enter a bit of conceptual analysis.

The bat kol’s answer

The underlying question is that of halakhic truth. Is there one halakhic truth (monism), or are there many halakhic truths (pluralism)?[2] Seemingly, when we say, “These and those are the words of the living God,” this is a pluralist statement: the positions of all halakhic sages are correct. Indeed, the Ritva cites the question of the sages of France, who apparently understood the bat kol thus:

“These and those are the words of the living God.” The rabbis of France asked: how can both be the words of the living God—this one prohibits and that one permits? They answered: when Moses ascended on high to receive the Torah, he was shown on each matter forty-nine arguments to prohibit and forty-nine to permit. He asked the Holy One about this, and He said it would be entrusted to the sages of Israel in every generation, and the decision would follow them. This is correct by way of homily, and in the way of truth there is a mystical reason in this matter.

It seems they explain that halakha is pluralist. The reasons on each side are true, and therefore whichever decision is reached is true. This is a pluralist reading of the bat kol. According to this, we must ask: what is the meaning of the conclusion “and the halakha is like Beit Hillel”? If there is no single halakhic truth and both sides are correct, why rule like Beit Hillel and what does such a ruling mean? On this reading, it would seem that the halakhic ruling is not based on Beit Hillel being right, but rather that a ruling simply selects one opinion from among all the (equally true) positions so that there will be a binding practical conclusion. So it also seems from the Talmud’s rationale for the bat kol’s ruling: because they were humble, listened, and even cited Beit Shammai before their own view. This sounds like a technical, not substantive, reason: the law follows Beit Hillel not because they are right, but for educational reasons—to teach us to honor our opponents. One might say the ruling is a prize granted to Beit Hillel for good behavior. Thus, the Talmud’s rationale seems to reinforce the pluralist reading.

In Column 247 I brought R. Yosef Karo’s Kelalei ha-Gemara, where he writes thus about the bat kol’s ruling:[3]

It is puzzling: if the law did not follow their words, would they fix the law like them merely because of their good qualities? It may be that this is the meaning: because of their virtues they merited always to hit upon the truth; and since they were truthful, the law was fixed like them.

Already in his question it is evident that he refuses the pluralist interpretation that denies a single halakhic truth and sees halakha as set for side reasons (educational). In his view there is halakhic truth, and the law follows Beit Hillel because they are closer to the truth. Therefore he must find a non-pluralist explanation even for the Talmud’s rationale: because Beit Hillel placed Beit Shammai’s arguments before their own—i.e., they weighed their opponents’ reasons before forming their own position—they merited to reach the truth. Their good character traits, as expressed in their methodology of listening to the other side, helped them shape a position closer to truth. Remember: Beit Shammai were sharper; perhaps because of this they did not bother to listen to Beit Hillel’s reasons but formulated their position on their own. Therefore they missed, as per “according to sharpness, error.” Beit Hillel, though less sharp and dazzling, by employing a receptive methodology came closer to truth—and therefore the law was fixed like them.

The only thing left to clarify, on this monist reading, is the first clause of the bat kol: what does it mean that Beit Shammai’s words are also the words of the living God? On this reading, Beit Hillel are correct and Beit Shammai erred.

Elsewhere I have discussed the meaning of “These and those” within a monist conceptual framework. The claim is that this expression denotes tolerance, not pluralism (see, for example, here). I will reach that in the next column. Here I will enter a different concept related to multiplicity of views: harmonism.

Harmonism

Avi Sagi, in his book Elu ve-Elu, deals with this sugya and also addresses halakhic truth. He presents three conceptions: monism, pluralism, and harmonism. We have already met the first two; now I wish to focus on the third, which is in fact a type of monism.

The Talmud in Sanhedrin 17a brings the following statement:

R. Yehuda said in the name of Rav: We appoint to the Sanhedrin only one who knows how to declare a creeping creature pure from the Torah. Rav said: I shall argue and render it pure—from a fortiori reasoning: if a serpent, which kills and increases impurity, is pure; then a creeping creature, which does not kill and yet increases impurity—should it not be pure? But this is not so—like a thorn!

A condition for appointment to the Sanhedrin is the ability to declare the creeping creature pure—even though the Torah declares it impure. On its face this looks like a test of clever nonsense—more fitting for a Purim Torah than for a Sanhedrin judge.

Indeed, Tosafot s.v. she-yodea there brings R. Tam’s difficulty:

“Who knows how to render the creeping creature pure…”—It is difficult for R. Tam: what do we need with clever nonsense to render pure what the Torah made impure? R. Tam explains that [it means] one who knows how to render it pure from the impurity of nevelot so that it will not transmit impurity by carrying with an olive-bulk….

Tosafot then explains the sugya per R. Tam’s suggestion. But this is a forced reading. The Rema (Responsa §107) writes that the kal va-ḥomer comes to teach that even though the Torah rendered the creeping creature impure, nonetheless we should minimize its impurity in every possible way.

But the Remeh explains the sugya literally:

“We appoint… only one who knows how to render the creeping creature pure from the Torah”—that is, to show by kal va-ḥomer that by right it should be pure; but not to rule so in practice, since the Torah declared it impure.

According to him, the requirement is not to render it pure in practice (since the Torah declared it impure), but to show that there is also a side by which it would be pure. Clearly the truth sides with impurity, which carries the day. The Maharal, in his Derashah on the Torah, follows the Remeh and explains that this is not idle pilpul, because a foundation of understanding Torah is to know the essence of matters from all their perspectives.

I usually illustrate this with the “chocolate parable” (see here): Reuven and Shimon argue whether to eat chocolate. Reuven says yes—because it is tasty; Shimon says no—because it makes one gain weight. Who is right? Both. Chocolate is both tasty and fattening. So what is the argument about? The weight of the two considerations: Reuven thinks taste is more important than weight gain; Shimon thinks the opposite. That is, the reasons each side raises are correct; the dispute is about how to weigh them and thus what the bottom line should be. This characterizes almost any dispute you can think of. Unless one party is simply foolish, the reasons each side adduces are usually correct, and the dispute is about their relative weight. This is precisely the creeping-creature case: there are myriad reasons to render it pure and myriad to render it impure, and all three hundred are correct; but in practice it is impure because the reasons for impurity outweigh those for purity. This is the case in almost every practical issue: there are two significant sides, both true; the decision is reached by assessing their relative weight.

This is essentially the approach Sagi terms “harmonism.” Truth is composed of many different sides, all of which are aspects of the truth. Full truth is the combination of all the sides together. In practice we sometimes must decide what to do (eat the chocolate or not), but that is not a decision about which reasons are true (for they all are), rather about which carries greater weight.

This can be seen in the Talmud itself. The “These and those are the words of the living God” statement appears in only one other place in the Bavli—Gittin 6b—where, unlike Eruvin, the Talmud also explains this seemingly paradoxical principle. There we find a halakhic statement by R. Evyatar, and the Gemara queries whether he is authoritative. It brings that the Holy One, blessed be He, Himself agreed with him:

Moreover, is this not R. Evyatar, whom his Master agreed with? For it is written, “And his concubine played the harlot against him.” R. Evyatar said: he found a fly upon her; R. Yonatan said: he found a hair. R. Evyatar encountered Elijah and asked: What is the Holy One doing? He said: He is occupied with the concubine in Giv’ah. And what does He say? He said: “My son Evyatar says thus; My son Yonatan says thus.” He said to him: Heaven forfend—can there be doubt before Heaven?! He said: “These and those are the words of the living God”—he found a fly and did not become angry; he found a hair and became angry. R. Yehuda said: a fly—in the bowl; a hair—in that place: a fly is disgusting; a hair—dangerous. Some say: both in the bowl—a fly is an accident; a hair—negligence.

There was a dispute between R. Evyatar and R. Yonatan about what the man found with his concubine that aroused his anger. It turns out that the Holy One Himself appears to “doubt” and says, “These and those are the words of the living God.” The Gemara also explains the sides of the dispute: whether it was due to disgust or danger; or alternatively, accident or negligence.

But here the Gemara also explains the meaning of this “pluralist” principle: “He found a fly and did not become angry; he found a hair and became angry.” Seemingly he found both, and in that sense both were right—but only one was right about what aroused his anger. However, I think the better reading is different: his anger arose from both reasons together. Each alone would not have sufficed, but their combination did. Behold harmonism in full splendor: the reasons are both true, and the full truth is their combination. Here we need not even make a practical decision or weigh them—the result is cumulative (they are not contradictory but complementary). Perhaps one could hang this on the explanations at the end: per the first version, there were two independent causes—disgust and danger—so it truly accumulates; per the second version, since one does not get angry over accident, only negligence is anger-worthy. But recall that the passage is cited to show that G-d agreed with R. Evyatar, who said it was a fly. It is therefore unlikely that, in the final analysis, he was wrong. We must say that even per the second version, the anger was cumulative: once she acted negligently, it emerges that even the “accident” perhaps resulted from carelessness.

For our purposes, “These and those are the words of the living God” here expresses harmonism: full truth is the combination of the aspects each sage contributed. To sharpen this, consider the well-known elephant parable. Reuven and Shimon describe to Levi the elephant they saw. Reuven says the elephant is a creature with one eye and two legs far apart; Shimon says it is a creature with two eyes and two legs close together. Who is right? Both. Reuven saw the elephant from the side; Shimon saw it head-on. So what is the elephant itself—what is the full truth? The combination of both perspectives. This is harmonism. Sometimes each side sees only one aspect; sometimes both see both aspects but weigh them differently. This phenomenon reflects the value in a dynamic tradition and multiplicity of views: without all the views we cannot approach a fuller truth. Seeing an issue from all angles is difficult and perhaps impossible. Humans always see a partial picture; multiplicity helps us approach a more complete one.

Here I will merely note the implication of this conception for lamdanic ḥakirot (analytic dichotomies) and syntheses between their sides. When one contemplates the sides of a ḥakira, it is immediately apparent that both are reasonable and each captures a correct point. We should not be surprised that the dichotomous formulation usually does not truly work. Examination of the sugya and the commentators reveals that the truth is some combination of the sides (see, for example, my article on analytic “ḥakirot,” and Column 454).

The impact of changing circumstances

I already noted that the academic approach seeks to uncover what was historically—i.e., what Maimonides himself thought. The yeshiva approach, by contrast, ignores history and tries to understand the meaning of the text as such (and perhaps this is a truer understanding of Maimonides the man). I discussed this at length in my article on hermeneutics, showing the implications of the differences between these approaches (especially regarding recourse to manuscripts and textual variants, and attention to historical and ideological context).

In Column 166 (see also sources cited in note 1 there) I addressed this difference between academic research and yeshiva learning, as well as the fact that changing circumstances can reveal other aspects in halakhic and non-halakhic issues. For example, consider the disputes between Maimonides and the sages of Spain, on the one hand, and Tosafists and the sages of Ashkenaz, on the other, in various laws related to sanctification of the Name. There are aspects in which the sages of Spain were more lenient and the sages of Ashkenaz more stringent. The decisors attribute this to the Crusades (in Ashkenaz), which led local decisors to “raise the fences” to cope with threats and dangers. If one presses the academic approach to the end, one may conclude there is no real dispute: in circumstances of persecution and danger the law is stringent; in milder circumstances it is lenient. Therefore, to decide what we should do, there is no need to study the sugyot and form a view of who is right; rather, we should examine our own circumstances: if they resemble those of Ashkenaz then we should be stringent; if Spain—lenient. In the yeshiva world, of course, they see a value-laden, principled dispute requiring substantive explanation as such. They ignore the contextual influences and discuss the positions on their merits.

I explained that such an approach does not necessarily assume academia is wrong. It simply holds that academia deals with the context of discovery (how a position arose), whereas yeshiva learning deals with the context of justification. The meaning is that circumstances led to the emergence of different approaches on sanctification of the Name, but each approach has logic and justification on its own terms. The truth is a combination of the different approaches, and the decision is made according to the weight and reasoning of the decisor. This is an example that even changes in factual and historical circumstances can give birth to new positions. Each commentator was sure he was engaged in pure interpretation of the sugyot and did not truly take into account the influence of circumstances. He lives in an ethos seemingly detached from reality, as we saw in the previous column. But in truth it is not detached: he indeed interpreted the sugyot as best he understood, but the interpreter is also “formed by his landscape.” The attempt to reach the original intent of the earlier sages—the hollow-conduit conception—would not allow for two such differing aspects to appear; and if they did appear (for, as noted, the telephone game is a fact), they would not be prepared to see them as two different angles of a fuller truth that are both correct. At most, absent a decision, the sages would fight one another like the students of Hillel and Shammai who did not fully attend to their teachers.

In my article in Tzohar on myth and historical truth, I discussed disputes about reality. In the yeshivot it is customary to say that dispute about reality is impossible, since in such disputes one side must be wrong. This is clearly false: reality-based disputes are common. Among other things, I cited R. Yitzḥak Hutner, who explains that in any dispute about reality the debate is not about the historical events but about the norms derived from them. For example, where there is a debate about what occurred in the Mishkan regarding the beams on the wagons (in the sugyot of carrying on Shabbat), of course the historical truth was one; yet there is no right and wrong here, since each sage interprets the verses in a possible way (the Torah concealed the historical, factual truth to allow for both interpretations—in his language, this is “concealment of knowledge”), and from each such interpretation emerges a correct value or halakhic position. This is another facet of the same phenomenon: concealment of information and errors in interpretation give rise to correct value and halakhic positions (which would not have arisen without the failure in transmission).

A dynamic halakha le-Moshe mi-Sinai

We can now return to Column 624, where I stood on Maimonides’ claim that no dispute fell within halakha le-Moshe mi-Sinai. I explained there that his intent is likely that even if a dispute arose, we should view both sides as halakha le-Moshe mi-Sinai—i.e., it is a normative, not historical, claim. Here I wish to revisit the matter from another angle. In the second volume of my series on Talmudic logic, on the “General and Particular” canons, I discussed the historical development of the hermeneutic canons. In short: scholars are all convinced that the middot are the product of historical development with environmental influences, while all the Rishonim agree they are halakha le-Moshe mi-Sinai. A review of the sources shows the scholars are right: the hermeneutic system becomes more detailed, expanded, and refined over the generations. But as I explained there at length, “this one said one thing and that one another, and they do not truly disagree”: we are dealing with a dynamic halakha le-Moshe mi-Sinai. The canons were given to Moses at Sinai in a germinal way (like a language learned by a child—without rules and abstractions). Over the generations, the language of derash undergoes conceptualization and more precise definitions, which I demonstrated in detail regarding “General and Particular.” Among Hillel’s seven canons there is only one of this type (or two), but in R. Ishmael’s list there are already three, and in practice there are at least four (he is missing “Particular–General–Particular”). The claim is that this is not invention but conceptualization and refinement of the tradition we received from Sinai. This process entails processing the tradition and trying to define it better, so we can expound more precisely and consistently. Naturally, this process also generates disputes: R. Ishmael’s school expounds via “General and Particular,” while R. Akiva’s via “Amplifications and Limitations.” When one conceptualizes abstract principles, more precise structures are exposed; each defines them differently, and so disagreement is almost inevitable.

Is this a failure in transmission? Academic scholars will say yes (for in their view tradition is what was transmitted at the origin, and they try to reconstruct that). In my view—absolutely not. It is an elaboration and expansion of the tradition, revealing different aspects that all exist within the tradition we received. But it also creates disputes, since the application and weighting of the different possibilities vary among sages. This is an excellent example of processing and interpreting the tradition—i.e., a “Reed” tradition, not a “Cedar”—which leads to its refinement and better understanding. It is a move from intuitive use (like a native speaker’s speech) to adult, theoretical, disciplinary use, which allows us to employ it even if we have lost some of the intuition that accompanied the early darshanim. But we also have an advantage over them: where their intuition was absent, they were helpless and could not decide how to expound; whereas we, possessing disciplinary rules—a kind of logic of derash—can employ them even where we lack direct intuition. Just as a native speaker has an advantage over an ulpan student in most cases, yet the ulpan student has an advantage where the native speaker hesitates and has no intuition about how to phrase something. The use of formulated rules and understandings helps us in such cases (see Columns 346–347, especially the discussion of “refuting the heavier side”).

Personal note: A common denominator for academia and the religious world

A personal note at the margins. For quite some time I have known that religious publications are unwilling to refer to me as “Rabbi.” I have no problem with this; it just strikes me as odd that at the same time any Tom, Dick, and Harry who cannot read or write and publishes a vort on some aggadic sugya easily receives the title “rabbi” or “rabbanit.” Some even approached me for an article but apologized that they could not style me with that title. Recently I learned that various religious journals refuse to publish articles that discuss my positions or cite and mention me. Apparently I have become untouchable (out of repulsion?). Well, this only means I’m on the right track. In addition, for quite some time I have known of a similar phenomenon in academia: there too I have often heard that they are unwilling to include references to my articles in academic publications.

For the former I deviate from tradition; for the latter I am insufficiently academic (i.e., I don’t engage in the archaeology of halakha and thought). While writing these columns I realized the common denominator: both conceive of tradition as frozen, and I am anomalous because I see it as dynamic. Incidentally, as I have written more than once (see my article on academia and “issur negi’ah”), I think the academics are in fact right, since their task is indeed to discuss falsifiable claims—i.e., matters of fact, not positions—and thus, by nature, they deal with uncovering facts (historical). They therefore strive to reveal what was, not what the law says (which is the domain of the traditional learner and decisor). This does not mean they cannot deal with my claims or cite my articles (here we are dealing mostly with petty feuds à la the film “Footnote”), but they are correct that my writings do not belong to the academic genre. By contrast, the religious world lives within a self-invented imaginary ethos of frozen tradition, and in their view a dynamic (Reed-type) tradition is heresy—that is, not an authentic, legitimate continuation of the tradition we received. In their view, Ḥazal, Maimonides, and R. Akiva Eiger were allowed everything—but from some point onward everything froze, and deviations and innovative interpretations were banned.

I did not bring this to complain—if only because it does not much bother me—but because one can see here a practical implication of a frozen approach to tradition, that is, living within an (imaginary) Cedar-ethos rather than a Reed-one.

After publishing the column I recalled a passage from my book Sciences of Freedom, where I discuss findings from split-brain experiments. One finding is that sometimes the brain’s left hemisphere holds democratic views while the right holds Republican ones. Many infer from this that there is no mentality and that we are nothing but biology: a person’s views are merely expressions of brain structure, nothing more. In chapter fifteen I explain in detail why this is wrong, and that the proper conclusion is the reverse. For our purposes I will bring only a passage where I explain the division of views between the hemispheres—which directly concerns the picture I painted here of opposing reasons within the same issue:

Even in the split brain there is no impediment to viewing each hemisphere as expressing one psychological side. When the right half opposes Nixon and the left half identifies with him and his policies, this means Nixon has several sides—some of which the person likes and others less so. Moreover, the positive sides of Nixon (for that person) belong to the left half, and the less positive sides are those the right half deals with. Therefore, when one asks the left hemisphere, it supports Nixon, while the right opposes him. When there is no connection between the hemispheres, this can even be expressed at the ballot box. In a healthy person there is a weighing of all the aspects, and in the end he forms and expresses one general stance about Nixon.

The same applies to any ideological split. Almost every ideology has positive and negative aspects, and even a critic can find positive sides in it. Therefore it is even expected that between our two hemispheres there will be an ideological conflict. Does this mean there are two different souls? Or that soul and brain are identical? Certainly not. This is not a split of personality but a functional split. Each brain part deals with a different aspect of the problem and thus reaches different conclusions. The person’s final conclusion is the weighing of both sides together.

Thus, a person healthy in mind and thought should understand that every issue has pros and cons, and therefore he must consider them all when forming a stance. The unified outlook that seems, to Zaidel, an expression of a whole, healthy person now appears problematic. Does that person not understand that Nixon has both positive and negative sides? Whoever does not grasp this—he is the one impaired in his thinking (and perhaps in his brain). Clearly, when there is no connection between the hemispheres, the final decision cannot be made while considering both sides together. If the result is expressed in speech—the left hemisphere will determine; if in action—there will be another mode of decision-making. But this certainly does not say there are two souls. It only says that a certain part of my one soul fails to be expressed in the physical world (or in my body). Therefore only certain hues of my soul are now expressed in the world. Does this mean the source contains only these hues? As we saw in the prism example—certainly not; the white light contains everything, but the prism does not always allow that to be expressed.

[1] See my article on the hermeneutics of canonical texts. I should note that that article is entirely based on the phenomenon that there is no necessary dependence between the truth of a claim and the way it is produced. Although the chief thesis there (divine providence over the transmission of Torah) is no longer my view, the antecedent assumption—separating the claim from its genesis—remains correct. I will devote one of the coming columns to it.

[2] See my article “Is Halakha Pluralist?”

[3] In the book Halikhot Olam by R. Yeshuah ha-Levi of Tlemcen, Tel-Aviv 1970, p. 51.