Not in Heaven: A Look at the Rules (Tor 505)

With God’s help

Last Shabbat (Parashah Nitzavim) I discussed in synagogue the principle of "It is not in the heavens," which is based on a verse in our parashah. We have accepted that this verse prohibits relying on the heavens in deciding halakhah, and refers us to the decision of humans. I will begin here by discussing whether and how such a principle emerges from the verses, and then I will move on to comment on it and its relationship to the rules in halakhah and in general.

The verses

The parsha in which this verse appears ostensibly deals with exhortation to serve God (Deuteronomy 30:11-14):

For this commandment which I command thee this day is not strange unto thee, neither is it far off: it is not in heaven, that thou shouldest say, Who shall go up unto us from heaven, and bring it unto us, that we may hear it, and do it? nor is it beyond the sea, that thou shouldest say, Who shall go over the sea for us, and bring it unto us, that we may hear it, and do it? for the thing is nigh unto thee. It is very much in your mouth and in your heart to do it:

Simply put, the parsha seems to want to teach us the lesson of the Hindu parable of the Rabbi of Breslov. Do not think that you are too small to serve God and that the Torah is too sublime and high for you and beyond your reach. It is close to you and within your reach to fulfill it. As it is said: There is no despair in the world at all (except for the cases that exist).

But it seems that the Sages did not study the verses in this way. According to their view, there is a meta-halakhic principle here. Thus we find in the Gemara BM 55, in the act of Akhnai's oven:

That day, Rabbi Eliezer answered all the answers in the world, but they did not receive them. He said to them, "If the law is like my carob, it will be proven. The carob will be uprooted from its place a hundred cubits away. I told her, four hundred cubits away." They said to him, "They do not bring evidence from the carob." He returned and said to them, "If the law is like my water well, they will prove it." The water well turned behind them. They said to him, "They do not bring evidence from the water well." He returned and said to them, "If the law is like my walls, the walls of the house of worship will fall down." Rabbi Yehoshua rebuked them. He said to them, "If you are scholars who defeat one another in law, what is your nature? You did not fall because of the honor of Rabbi Yehoshua, and did not stand up because of the honor of Rabbi Eliezer, and yet you are still standing." He returned and said to them, "If the law is like my law from heaven, they will prove it." A voice came out and said, "What do you have with Rabbi Eliezer, whose law is like it everywhere?" Rabbi Yehoshua stood up and said, "It is not in heaven." Is it not in the heavens? Rabbi Jeremiah said, "The Torah was already given on Mount Sinai. We do not observe the voice of the Lord, who has already written it on Mount Sinai in the Torah, after many years of neglect." Rabbi Nathan said to Elijah, "What is the holy servant, blessed is he? He is in that place." He said to him, "How did you live?" And he said, "My son, my son, win!".

There was a halachic dispute between the Rabbi and his colleague and friend Rabbi Yehoshua and his younger friends/disciples, and even a Bat Kol that came out in favor of the Rabbi did not convince them. The rule that Rabbi Yehoshua relied on is taken from the verses above: "It is not in heaven," and from this he learns that one does not observe a Bat Kol but follows the majority. The legend ends with the fact that even the Blessed One smiled and said, "I have prevailed, my son" (meaning: I tried, but it did not work…).

How is this principle learned from the verses? On the face of it, this is a simple teaching, since the verses are not concerned with deciding the law at all, but with encouraging people to observe the Torah and alleviating their despair and despair. But a closer look at the verses reveals that the matter is not so simple.

In the two middle verses, the Torah is not content with saying that the commandment is not in heaven or beyond the sea, but also negates the statement "Who will ascend to heaven for us and bring it to us and make us hear it and do it" or "Who will cross the sea for us and bring it to us and make us hear it and do it." These additions are not consistent with the interpretation of the verses as an exhortation and alleviation of despair. If the verses were intended only to encourage us to keep the Torah, I would expect it to only write that it is not in heaven or beyond the sea but in your mouth and in your heart to do it. It is not far away but within us and within our reach. The despair that we cannot keep the Torah is not supposed to be resolved by sending someone to bring us the Torah. This is not a relevant solution to such a situation. The expression "you were amazed" also does not seem relevant if it is a difficulty. Such an expression speaks of a lack of understanding and intellectual distance. The same is true of the conclusion that the Torah is in our mouth and in our heart to do it. If it is a difficulty, then the problem is not in the mouth or the heart but in weakness and instincts.

From all these considerations, it seems that the interpretation of these verses is different. It seems that the Torah really came to deal with the feeling of doubt that can arise in us, that because of the despair that we do not know what to do (the Torah is wonderful than us, understanding it is not within our reach) we would expect someone to bring us the answers from afar, from heaven or across the sea (a voice, a prophet, the Holy Spirit). And so the Torah says that we should not expect this. Everything depends on us, that is, it is decided in our own mouths and hearts. The decision of what to do is left to human beings here on earth, and we should not expect decisions from heaven. I think that is how the Sages deduced their meta-halakhic interpretation from the verses themselves, and in my opinion this is not a demand or demand, but an interpretation that certainly fits well into the plain language.

Resolving a dispute in the "S" and "B"

In the issue of Eruvin 13b, we find a decisive verse in the controversy between the Hebrews and the Hebrews:

Rabbi Abba said, Samuel said, "For three years, the House of Shammai and the House of Hillel were divided. These say the same law as we do, and these say the same law as we do. A voice came out and said, 'These and these are the words of God, and the law is like the House of Hillel.' And since these and these are the words of God, why did the House of Hillel deserve to establish the same law as them? Because they were comfortable and humble, and their words differed from the words of the House of Shammai, and what is more, they prioritize the words of the House of Shammai over their words...

B.S. and B.E. were unable to reach a decision between them, so they needed a vote. This was the decision that went to B.E.past On the background and uniqueness of this controversy.[1] In any case, the conclusion of the voice is that it determined that the halakhah is according to Beit Hillel. This is the most definitive halakhic ruling in the history of halakhah, and from there on we accepted that "the words of B"S in place of B"H do not change" (Beitza 11b and parallels).

This is also true in the issue of Eruvin 6b. It begins with the baraita:

And who are the servants of material crowns, and will not you forever proclaim the law as the House of Hillel? And whoever wants to do according to the words of the House of Shammai does according to the words of the House of Hillel, does according to the words of the House of Shammai, and according to the words of the House of Hillel, a wicked man from the materials of the House of Shammai and from the materials of the House of Hillel, concerning whom the scripture says, "The fool walks in darkness, but is not like the House of Shammai, as a voice and as a voice, or

One should be consistent and follow a particular ruling, either B.S. or B.H. One should not even make material distinctions, meaning to be strict as if two conflicting opinions.

The Gemara now stops and complicates the baraita itself in its various aspects:

You said, "The law is according to the House of Hillel and Hadar," and you said, "Whoever wants to do what the House of Shammai says does so."

If the halakha is הבה, how is it possible that a person can choose to follow הבה? The Gemara offers three excuses.

The first:

I won't ask here before Bat Kol, here after Bat Kol.

This is before the voice of the Lord, the decision was made according to the will of God. But after the voice of the Lord, it is truly no longer possible to choose to follow the will of God.

The second:

And I heard a mother say, "Ha ha, after a daughter of a kol", And Rabbi Yehoshua said that she is not a mishgad in Bat Kol.

Even after the Bat Kol that was ruled, one can follow B.S. The baraita here does not follow the method of Rabbi Yehoshua (in the issue of the oven of Akhnai) who does not observe Bat Kol. This excuse implies that there is a dispute on the matter, and this baraita holds that there is no rule of "not in the perfume." Although according to the halakha, in the issue of B.M., it appears that Rabbi Yehoshua ruled, and therefore, apparently, according to this excuse, there is no obligation according to the halakha to rule as follows. This is quite puzzling.

The third:

And the mother of the most important thing is that all of this is forgotten, and the Amorites of the Philistines are divided, as is the dispute between the House of Shammai and the House of Hillel, not to worship because its voice is deaf and because its voice is deaf, nor according to its materials, because its materials are deaf, but either because its voice is deaf and because of its materials it is worshipped, or according to its voice is deaf and because of its materials it is worshipped.

The baraita is not really talking about B'S and B'H, but about disputes that are still open and have not been decided by law. In a dispute about B'S and B'H, there is really no option to choose to follow B'S.

In any case, in all three excuses, the assumption is that the Bat Kol requires the ruling of the rabbinic court, at least if one does not follow Rabbi Yehoshua, even though, simply from the issue of the BM, it appears that the halakhah has been ruled accordingly.

Comment on the contradiction of the issues

This is emphasized in the Todah 'here', in the issue there:

Here, after the voice of the voice – and if you say, "What is the hatred of the non-existent?", then it is like the voice of the voice of Rabbi Eliezer of Zehav (B"M 4:55).

How does the assumption of this issue (that the decision of the Bat Kol is valid, according to the Bible) reconcile with the issue of the BM (that the Bat Kol has no halakhic status)?

He gives two excuses:

And it must be said that it did not come out except in his honor, as the blood of the innocent.

According to this excuse, they do oversee the Bat Kol, and in the issue of BM, there is talk of a Bat Kol that was issued only in honor of the Rabbi, and was not really intended to decide a halakhic ruling (although it is not clear how the listeners there were supposed to understand this).

Second excuse:

And yet, they were against many, and the Torah said to incline after many, but here, rather, the House of Hillel was the majority, and they did not need a voice, except because of Deborah Shammai, who was a Hariphi Tefi.

What is not followed is only when it acts against the majority, since the halachic rule is that one follows the majority (this is what the Gemara says in the BM specifically, that one does not follow the halachic because it is written in the Torah "to incline after many"). If so, the halachic has no standing against the halachic, but not that it has no standing at all. And what happened here with regard to the BH? Here the halachic came out in favor of the BH, who were the majority. However, the BH has difficulty in why they even needed the halachic and did not already rule without it, as the BH already did, by virtue of the halachic "to incline after many" rule? They answer that the halachic was necessary because the BH were more pointed and harsh. I will explain this more below.

Thos ends with a difficulty:

And if you say, then why did Rabbi Yehoshua say, "There is no supervision over a female voice?" Didn't Rabbi Yehoshua say, but rather, "Avat Kol" (the father of the voice) and "Vil" (the father of the voice) that is not in the sky?" does that mean that there is no supervision at all over any female voice?

Here Tos explains that all of the above is stated according to the first excuse in the Gemara. But according to the second excuse, there are no overseers of a Bat Kol in any situation, both when it comes to deciding a halakhah and when it does not act against the rules of halakhah. However, there is a disagreement between the Tannaim (the baraita here versus Rabbi Yehoshua). It is true that it is not clear how it itself was decided (after all, it is impossible to decide according to the majority). Beyond that, I have already noted that on its face it appears that the baraita here is not a halakhah.

Conclusions

First, it is not clear why the word "Bat Kol" was even used here in the first place. Thos explains that it is because the ISAs were more severe. Does the severity stand against the majority? If not, then we have not gained anything. If so, then we are back to the situation where the word "Shabbat Kol" came to decide something against the rules of halakhah.

It seems that their intention was to say that there was a will not to follow the majority because the B's were more strict, and the Bat Kol ruled that even in such a situation one must follow the majority. In other words, she clarified for us the meaning of the halakhic rule that commands following the majority. In conclusion, she does not act against the rules of decision of the halakhic law, but only sharpens and clarifies them themselves. Thos apparently assumes that this is what a Bat Kol can do.

Did the B'S themselves accept this ruling? From many places in the Talmud it seems that they did not. In the baraita here we see that one who wants to do as the B'S says does so (although there are various excuses for this here). Likewise, in the first chapter of Bitza we find several disagreements between the B'S and the G-d regarding a meal, and there are Amoraim who ruled in favor of the B'S. The Amoraim certainly acted after the emergence of the Bat Kol, and yet they ruled as they did. How is this possible? Of course, someone who believes in the B'S will certainly not start following the G-d because of the Bat Kol, and the B'S themselves certainly did not do this. According to their view, one should follow the harshness and the majority does not rule against it.

I think the explanation for this is that the B'S Bat Kol method offers a solution that contradicts the halakha (since according to their system, it is the halakha that determines the severity, not the majority), and therefore, from their perspective, it should not be listened to, since one does not follow the Bat Kol in a place that is against the rules of halakha. The conclusion is that even after the Bat Kol, someone who believes in the B'S (both on the merits of the matter and in the law of following the majority, which determines the severity) can do the B'S. The Bat Kol came out in favor of those who do not have a position on the issue of the decision, and who do not belong to the B'S or believe like them. The Bat Kol ordered them to follow the B'S.

There is also another possibility, according to which the rule that the Lord has decreed is not a binding rule, but merely a guideline for those who do not have their own position. But for those who believe the Lord, they must certainly do as they understand and not follow the Bat Kol. I will explain this further later in the column.

Another suggestion

If we look at the situation before the issue of Bat Kol, the question arises as to why the dispute between the two houses was not resolved at all. What was special about it, compared to all the other disputes? It seems that this can be explained in the way of Tos. There was a limbo in the decision: the B"H believed that one should follow the majority of people and the B"H believed that one should follow the majority of wisdom (the severity). Therefore, the rule that one follows the majority could not resolve the halakhic disputes between the houses. But even this meta-halakhic dispute itself (whether the majority decides or the severity) cannot be resolved by voting, since each side is fortified in its meta-halakhic position (see in the column 195 On anti-paradox). B.S. will say that one should follow the severity, and in any case they will remain in their position that the severity is the determining factor, and vice versa with B.S. In such a situation, there is justification for resorting to the decision of the voice.

When there is no majority decision and no halakhic decision rule, the principle of "not in heaven" is not stated. This principle only instructs us to use the halakhic decision rules and not to seek other alternatives for them. But when we do not have a halakhic option to decide, then it is certainly possible and perhaps necessary to use a unanimous vote.

The difference between the offers

This suggestion seems very similar to Thos's second excuse, but it is not identical to it. In Thos' it is implied that the prohibition to turn to a Bat Kol is only when it is an action against the rules of halakhah (for example, when a Bat Kol instructs us to go against the majority). According to my suggestion, the prohibition to turn to a Bat Kol is only when there is a halakhic basis. When there is no halakhic basis, there is no prohibition. The indication for this difference is that the claim that the ISAs are more severe appeared in Thos only as a side note, and its purpose was to explain why it was necessary to turn to a Bat Kol. But according to my suggestion, this claim is essential to the permission itself (the permission to obey a Bat Kol stemmed from the fact that it was a limbo of the majority versus severity).

It can be said that according to Thos, there is an explanation that reconciles the ruling of God with the rule "it is not in the heavens": the rule was not stated when the action is not against the halakha. But according to my method, there is no need for an explanation. Even if this rule applies in the current situation, we cannot remain stuck because of it, and therefore we will act against it. Where a ruling is required, we will reach it even if it contradicts the relevant rule. One can of course argue that this is itself an interpretation of the rule (meaning that it does not apply where there is limbo), and this is true, but in any case it is an interpretation that we did not receive in tradition together with the rule itself, but rather arrived at it from an explanation and from lack of choice. Below we will see the meaning of this distinction.

Let me repeat this further. We have seen that according to the second excuse of Tos', the rule "it is not in heaven" is sweeping. It applies in all situations, even when there is no contradiction to the halacha. Therefore, this excuse holds that the baraita here apparently does not agree with Rabbi Yehoshua's view. Now consider what Rabbi Yehoshua himself would have done if he had been in the situation described in the Eruvin issue? Apparently, he would have been stuck forever. Note, I am not asking whether, according to Rabbi Yehoshua, it is possible to follow the halakhic rule even after the Bat Kol. Thos clearly writes that it is. I am asking a more fundamental question: What would Rabbi Yehoshua (as an observer from the side) do with the halakhic limbo if he did not supervise the Bat Kol? It seems that in his view the dispute would have remained forever unresolved since he does not supervise the Banut Kol. How fortunate that he was not there. But my argument is that he himself, if he had been present there, would have made a similar decision and obeyed the Bat Kol. This is indeed against the rule "not in the heavens" (in his view), but there is no other choice. In such a situation, it is clear to me that he would also be acting against the halakhic rule, even though in his view it applies here as well. With all due respect to the rules, there are situations in which we must deviate from them.

One of the implications of this difference is regarding the determination of a majority in a court of law. According to Thos' proposal, the Bat Kol ruled that the determining majority is the numerical majority and not the severity. Now that this has been decided, we must act this way in every context. For example, when a dispute arises in a court of law between the opinion of one scholar and the opinion of two other scholars who are less wise than him, one must follow them and not him (since numbers prevail over severity and wisdom). But according to the law, this matter is disputed by the poskim (see in the column 69, and also 79, and for example here (In Rabbi Yoel Amital's article, which deals with the majority in general, not necessarily in a court of law.) According to the poskim who believe that even today one follows the majority of wisdom and not the number, it is not clear how they interpret our issue. Ostensibly, here a directive was received that one should follow the numerical majority.

Although according to my proposal here, the conclusion is different. The fact that there was a tie between number and sharpness only allowed the sages there to resort to a voice vote, but a voice vote does not necessarily determine that the numerical majority should be followed. It is the decision that in disputes between the Sharia and the HaShem halakha, the Talmud (even the reasoning there in the Gemara does not refer to a decision on the question of the numerical majority versus sharpness). The question of number versus wisdom remains open, and each posk can decide it according to his understanding. Thus, the issue can be interpreted according to these opinions.

The role of rules

We can perhaps learn from this the proper attitude towards the rules of halakhah in general. We saw a situation in which there is a halakhic rule that leaves us stuck: "It is not in heaven." When we are in a hopeless situation, there must be a way to overcome it and reach a decision. In such a situation, we decide that this rule does not apply to such situations and deviate from it. As stated above, it is of course always possible to argue that this is itself an interpretation of the rule, but it is an interpretation that was born out of the distress and was not stated by the one who established this rule. The implication is that this is what can and should be done in other situations in which we have a problem with some halakhic rule. We saw above the example of a situation in which Rabbi Yehoshua was in a state of limbo, where I argued that he deviated from the rule.

Let's look at another context. What would happen in a situation where there is a halakhic rule that instructs us to make a certain decision, but it is clear to us that this is not the correct decision for this situation? I want to argue that even in such a situation we must act against the rule (i.e. interpret it in a way that does not apply to this case, as we did with the rule "it is not in heaven"). The rules are not insurmountable, and when a situation requires it, we must deviate from them. To clarify the matter, we will take a few examples.[2]

The first example is related to disqualifying relatives from testifying (see above). here). The Gemara and, following it, the poskim (see, for example, Rambam, Testimony of Piyush Ha-Thu, 15 and more) state that this is a decree of Scripture, meaning that there is no problem with the credibility of close witnesses, since there is a presumption that no person is a sinner and that he is not, but the Torah decreed that we should not accept their testimony for its own reasons. We do not feel that this principle is problematic, since even if two relatives come to testify about Reuven who murdered, at most we will not punish him, and if necessary we may punish him unjustly. In the law of money, it is even possible to follow the impression of the judge (see Rambam, Ref. 2 and Ref. 2D of the Sanhedrin), and therefore it is also possible to rule based on relatives.[3] Therefore, most students do not understand the great problem with this explanation (or lack of explanation) for excluding relatives. But now think about a situation in which two qualified witnesses come and convict a murderer, and then two relatives come and instigate them. Ostensibly, the testimony of relatives should not be accepted, so we will ignore the instigation and execute the murderer. Note that the conspirators are truthful, since there is only a scriptural decree not to accept their testimony as relatives. If so, we actually know that this person is not a murderer (the witnesses who convicted him are liars),[4] And yet we must kill him. Such a ruling is unthinkable, and a court in such a situation should certainly deviate from the law and exempt him from death. Is there a rule in halakha that allows this? Is there a restriction on disqualifying relatives from testifying? If there is one, please act immediately. I think the implication is that in such a situation we must deviate from the rules.

Another example belongs to the rules of jurisprudence (see above in the columns). 482 and-119). We have accepted that in disputes between Abaye and Rava, the ruling is that of Rava, with the exception of six cases marked by Yael Kagam (see Kiddushin 55:1 and parallels). However, the Rambam in several contexts rules in favor of Abaye against Rava in other disputes. For example, in the law 'Do not congregate' the Rambam (Hebrew: 87:22:14) rules in favor of Abaye that it prohibits two courts in one city. Also in the law 'I do not work, I do not have any pleasure', according to some of his commentators, the Rambam (see Nash'ei Kelim in Hebrew: Mecha P'l 57 and Hebrew: Shabbat 523:15) rules in favor of Abaye that an act done against the Torah is beneficial.

The question is how it is possible for the Rambam to go head-on against an explicit rule of jurisprudence in the Talmud. The authors of the rules have offered all kinds of reservations, some of which are incomprehensible and illogical, and also have no clear source. They qualify the rule that the Rabbis followed with all kinds of reservations in order to conform to the Rambam's rulings. The obvious question is where did the Rambam himself learn these invisible reservations? How did he allow himself not to follow explicit rules of jurisprudence in the Talmud? But according to what we have seen here, there is no need for this. If the Rambam has a reason to rule as I do in some dispute, by virtue of his own opinion or by virtue of some issue, then he will prefer it over the rule that the Rabbis followed (this is essentially a type of 'consideration').Lex SpecialisSee for example on it. hereIn the above columns, I linked this to the halakhic 'rule' that "one does not learn from generalizations even in a place where it says 'except'" (see Eruvin 27a and parallels).

We could perhaps expand and say that this means that the rules of halacha should be taken with limited certainty, since they are an approximation to halacha and not its actual definition. Just as the rules of grammar are only an approximation to correct speech (therefore, there are exceptions to every rule), they are not what define correct speech. Therefore, in the case where it is clear that the rule does not lead to the correct conclusion, it can be deviated from. We will assume that this is another one of the exceptions, even if we have a detailed list of exceptions and this case does not appear among them (as in the case of Yael Kagam).

One could perhaps expand the scope even further and argue that the rules are merely guidelines for situations in which I have no reasonable way to act based on local considerations. But if I have such a way, there is no need to resort to rules. This is a more radical view. The rule is not just an approximation, and I don't even have to freeze it in special situations of distress, but the rule is generally not stated except as a tool that helps us make decisions when we have no other way to do so.[5] There is no problem in departing from a halakhic rule when you see fit, because the rule is not intended to be sweeping and absolute. This is very similar to my suggestion above regarding the rule "it is not in the sky."

This is perhaps how we can understand the possibility of easing up in times of stress (see on this inMy articles On the meaning of voices in halacha), that is, to rely in such situations on an opinion that has not been ruled on as halacha. On the face of it, it is very difficult to justify this conduct, because if the halacha was ruled as a different opinion, then it is going against halacha because of a hardship, and we have not found such a thing (when there is no dispute, we will not go against halacha even in times of distress). But even if the halacha was not ruled on in the case before us, we still have rules for deciding on spikot (doubt from the Torah to the grave and rabbinic to the voice, etc.). If so, choosing a lenient opinion in a doubt from the Torah is going against halacha even when there is no clear ruling. How, then, is it permissible to do this in times of distress?

According to my suggestion, things are clearer here. If I am in a time of stress, then this itself allows me, halakhically, to choose a mitigating opinion, meaning that I have a way to decide the question before me. Now I am no longer in doubt, and in any case the rule that requires me to go to the extreme with sufficient certainty does not apply to me. This can of course be said only if I assume that the rule that one must go to the extreme with sufficient certainty is stated in the Torah as a rule that helps a situation where I have no other way to decide. But when I have another way to decide, this rule is not stated there at all. If we assume that the time of stress is itself a legitimate way to decide in halakhic terms, then in any case there is no need to consider the rule that commands me to go to the extreme when there is no decision. In other words, the rule of doubt from the Torah to the extreme is a rule that is invoked last, only when all else fails.

This is what I suggested above regarding "not in the heavens." It may also apply to the situation that prevailed between the B.H. and the B.S., but in a state of limbo there is no choice but to act against the rule. My suggestion here is that this is the case with all halakhic rules. There are situations in which we must deviate from them, and this does not necessarily have to be viewed as a special permission or deviation from the halakhah. This is the halakhah itself. The rules are not the halakhah itself, but at most an approximation to it, or a default guideline when there is no other option. This of course requires more comprehensive consideration and research, on different types of rules and types of situations, and I have come here only to point out the principle direction.

[1] See also the prologue to the third book of the trilogy.

[2] I will not bring up the law of "offense for its own sake" here, as it is reasonable to say that this is an action that is not in accordance with halachah. I am looking for halachic examples.

[3] This is my opinion. Most of the latter did not think so. See on this inMigo brochure my.

[4] Although the intention is also the decree of the scripture, I showed in my article The above That cannot be interpreted literally. It is clear that the second sect is truly more loyal than the first.

[5] See the response. here A discussion on the essence of the rules of jurisprudence in Halacha.