Is Jewish Law Pluralistic?

HaMa'ayan – 5767

Rabbi Michael Abraham

Outline:
Introduction
A General Picture of the Interpretations of the Rule These and Those Are the Words of the Living God
Can There Be Several Different Interpretations of the Rule These and Those Are the Words of the Living God?
Autonomy and Truth: Tolerance Instead of Pluralism
One Qualified to Rule: One Competent to Do So
These and Those: The General Model
A Methodological Note: The Halakhic Test
Error in Law: One Who Errs in Judgment and One Who Errs Against an Explicit Mishnah
The Law of 'Do Not Place a Stumbling Block' in a Situation of Halakhic Dispute
Halakhic Practice: A Decisor’s Casual Remarks
Conclusion

Introduction

The rule These and Those Are the Words of the Living God accompanies students of Torah and its decisors wherever they turn. Although in the Babylonian Talmud it is said mainly with reference to the dispute between Beit Hillel and Beit Shammai[1], it has come to rest as a master principle describing the relation of Jewish law to disputes in the Talmuds, and even among later halakhic decisors.

At first glance this rule is problematic, and some would even say self-contradictory[2]: how can it be said of two opposing views that both of them, together and simultaneously, are words of the living God[3]? At first sight, this rule appears to express the pluralistic character of Jewish law, and the variety of views regarding the interpretation of the rule itself that appear in the halakhic literature would likewise seem to testify to such a character. In fact, however, we shall prove by a simple logical argument that this picture must be mistaken, and we shall see that in practice the range of interpretations is not really so complex. We shall try to show that one overall picture emerges here, about which almost all the commentators agree. From our discussion conclusions will emerge regarding the question of halakhic pluralism, but also methodological conclusions regarding the tools that should be used to examine and investigate meta-halakhic questions generally.

A General Picture of the Interpretations of the Rule These and Those Are the Words of the Living God

The fundamental problem that accompanies the rule These and Those Are the Words of the Living God is presented most clearly in the wording of the heavenly voice that went forth and said[4]: 'These and those are the words of the living God, and the law follows Beit Hillel.' On the one hand, two opposing views receive the status of words of the living God; and on the other hand, despite the fact that both views are words of the living God, there is a halakhic ruling that the law follows one of them, Beit Hillel. Two questions arise: a. How can two opposing views receive the status of words of the living God? b. If indeed both constitute words of the living God, what is the meaning of ruling the law in accordance with one of them?

It seems that these questions depend deeply on the question of the relation between Jewish law and truth[5]: is there one halakhic truth, or perhaps are there several halakhic truths? Some have pointed out[6] that the commentators’ discussions of the relation between Jewish law and truth fall into three categories: the monistic approach, according to which there is only one true halakhic ruling; the pluralistic approach, according to which there are several true halakhic rulings; and the harmonistic approach, according to which all truths coalesce into one overall picture of divine truth that contains within itself all opposites.

The monistic approach is found, for example, in Rabbi Yosef Karo’s discussion of Talmudic methodology[7], where he addresses the reason given by the Talmud in Eruvin for why the law was decided in accordance with Beit Hillel, namely, they were gentle and humble, and asks:

I find this puzzling: if the law were not in accordance with their view, would it really have been fixed like them merely because of their many good qualities? Perhaps this is what it means: why did they merit always to hit upon the truth, such that because their view was true, the law was established in accordance with them.

Rabbi Yosef Karo assumes that the law was ruled like Beit Hillel because they merited to aim at the truth. In other words: the words of Beit Hillel reflect the true ruling, whereas the words of Beit Shammai apparently are not true. This is a monistic position.

The monistic position fits the second clause of the heavenly voice very well—the law was ruled in accordance with one of the views because that view is the truth. But here, of course, the question arises regarding the first clause: in what sense is the rejected opinion words of the living God? It is not true! It must therefore be said that the rejected opinion has theoretical or practical value, and therefore it retains the status of words of the living God even though it is not the truth.

For our purposes, the pluralistic approach will be defined as the position according to which all authorized and legitimate halakhic views—not, of course, just any view whatever—are equally true[8]. The basic question with which a pluralistic position must contend is the second clause of the heavenly voice, 'and the law follows Beit Hillel': how can one rule the law in accordance with a particular opinion when all positions are of equal standing? According to this approach, one is led to view legal decision as an arbitrary act, intended to ensure that the Torah should not become like two Torahs and the like[9].

The harmonistic position is not essentially different from the monistic one, and therefore we shall not dwell on it here (we shall return to it below).

Can There Be Several Different Interpretations of the Rule These and Those Are the Words of the Living God?[10]

In this section we shall show, by a simple logical consideration, that there cannot be several legitimate interpretations of the rule These and Those Are the Words of the Living God itself. We have seen that several lines of explanation, or several attitudes, emerge among the commentators with regard to this very rule. We must note that what we have here is a dispute among sages about how we are to relate to disputes among sages. We may now ask ourselves: what are we to do regarding the differing opinions in this very dispute? Do we say of them too These and Those Are the Words of the Living God? In which of the contradictory and opposing senses will that expression serve us with respect to the interpretation of this rule itself?

This problem is seemingly insoluble. One who claims that the rule should be interpreted to mean that all opinions are true thereby says that everyone is right even with respect to the interpretation of this expression itself; and thus, from his perspective, even the interpretations according to which not everyone is right are true. And the same is true in reverse[11].

One can find a technical solution here[12]: the expression These and Those Are the Words of the Living God cannot be applied reflexively to itself. This is a technical solution that is apparently satisfactory on the logical plane, but substantively it is unjustified: why should this dispute be excluded from the rule? If indeed all the positions advanced by Torah sages in all their disputes are correct, then why specifically here, in this topic, did some of them manage to err? Alternatively, if here they erred, why not assume that they erred in other halakhic questions as well?

To analyze this paradoxical argument logically, we would now have to go through each of the possibilities mentioned above and examine, through the prism of each one separately, its own relation to all the others. In other words: we must take each of the possibilities and apply it to the disputes over the interpretation of the rule These and Those, and see whether a consistent picture results. After going through all the possibilities and analyzing each according to its own method, we would have to adopt the option that succeeds in preserving consistency in application—that is, the position that can be applied both to halakhic disputes in general and to this dispute itself. In mathematical terminology, one could say that this is the equilibrium point of the problem.

But this method is beset with systematic difficulties. First, unfortunately, it seems that this problem has several equilibrium states, that is, several solutions that remain logically consistent, and each of them poses difficulties for our conception of Jewish law. There is no point in even demonstrating this difficulty, because there is a further problem that renders the entire discussion unnecessary: even if we were to find one correct position, we would thereby have proved that all the others are mistaken. And then the question posed above would return: if so, why not assume that halakhic sages are mistaken in other matters as well?

The obvious solution to this paradox is that the rule These and Those Are the Words of the Living God can have only one possible interpretation, and all the views we have seen must fit it. There cannot be a contradiction among the commentators with respect to the interpretation of this rule itself. It should be noted that in practice this is an adoption of the harmonistic approach, which sees all views as aspects of the truth. And indeed, in the sections below we shall see that the other positions surveyed above are nothing but different expressions of halakhic harmonism[13].

Autonomy and Truth: Tolerance Instead of Pluralism

Jewish law often presents a pluralistic appearance, but in fact it is not. The legitimacy of a multiplicity of views does not indicate that there is no correct ruling; rather, beyond the question of halakhic truth there is also importance to the autonomy of halakhic decision-making. In other words: this is not pluralism (= a multiplicity of truths) but tolerance (= a willingness to accept erroneous positions as legitimate).

An illustration of this mechanism may be found in Derashot HaRan[14]. The Ran assumes that Jewish law reflects truth in the realist sense—that obedience to Jewish law brings perfection to the human being and to the world, and disobedience damages them. From this he concludes that there is one halakhic truth, and whatever contradicts it is mistaken and harmful. He explains that, at least on the face of it, there would have been strong reason to entrust halakhic decision to a prophet, who would reveal the truth to us with certainty; but because prophecy is not available at all times, that could be problematic. That is, the rule 'it is not in heaven'—that a prophet cannot innovate laws and decide halakhic disputes and doubts—was created only for technical reasons.

He then wonders how we can be commanded to obey the sages even where they err, given that this will cause damage to our souls. He answers that since they usually hit the truth, it is reasonable to establish a general principle that one should obey them. Although there are certainly cases in which we make a mistake by obeying them, still the damage caused by disobedience to the sages—which is itself a transgression of a Torah commandment—is greater than the damage caused by the transgression itself. Moreover, the Holy One, blessed be He, will erase that damage, because:

The perfection that is drawn into the soul by submitting to the commandments of the sages, the teachers of Torah, is what is most beloved before Him, blessed be He, as it is said, 'Obedience is better than sacrifice'; through that perfection He removes the evil that was destined to arise in the soul from eating that forbidden thing… and therefore the Torah commanded and said: 'Do not turn aside from the matter they tell you, to the right or to the left.'

What follows from his words is that there is indeed one halakhic truth and no other, and that it reflects some sort of reality. Nevertheless, the Torah obligates us to obey the sages and sometimes to act incorrectly, because of a secondary principle—the importance of obeying the sages. It follows from his words that halakhic decision does not reflect only theoretical truth; other considerations are involved as well. Therefore even a sage qualified to issue rulings, who may very well know that the court is mistaken, must obey them, and may not rule otherwise despite the error and thereby become a rebellious elder.

In light of this, one may conclude that the multiplicity of views does not reflect a multiplicity of truths, but rather the fact that not only theoretical truth determines halakhic decision; additional considerations do as well. In our case, the relevant value is autonomous ruling.

We shall now see this in several additional sources. First, one may bring a clear source from the Sages, who state[15]:

Rabbi Acha bar Hanina said: It was revealed and known before Him who spoke and the world came into being that in Rabbi Meir’s generation there was none his equal. So why was the law not fixed in accordance with him? Because his colleagues could not fathom the depth of his understanding. For he could declare the impure pure and provide arguments for it, and the pure impure and provide arguments for it.

At first glance, the law should have been fixed in accordance with Rabbi Meir, who was the greatest sage of his generation and likely hit upon the correct law. Yet the Sages did not establish the law in accordance with him, because beyond truth there is an additional value: that we act in accordance with what we understand. It is impossible to rule the law in accordance with a sage whose colleagues cannot fathom the depth of his reasoning. This is the value of the autonomy of the decisor, that is, his right—and even his duty—to conduct himself and rule as he understands, even if the ruling is not true. In halakhic decision, the value of autonomy overrides the value of truth.

In continuation of this line, let us cite the well-known words of the Maharal, in his Netivot Olam, chapter 15 of Netiv HaTorah:

It is more fitting and more correct that one should rule from the Talmud. And although there is reason to fear that he may not follow the path of truth and may not decide the law truly, so that the ruling accord with the truth, nevertheless the sage has only what his own intellect yields and understands from the Talmud. When his understanding and wisdom mislead him, even so he is beloved before the blessed God when he rules according to what follows from his own mind, for a judge has only what his eyes see. And this is better than one who rules from a single compendium and does not know the reason for the matter at all, walking like a blind man on the road.

It is very easy to err and interpret the Maharal’s words as halakhic pluralism; but if one looks closely, one sees that this is incorrect. The Maharal is not claiming that there is no halakhic truth, or that all authorized halakhic positions are true. On the contrary, he assumes that there is indeed a halakhic truth, and that the possibility of error hangs over us. Therefore there is also reason to fear that one who rules on the basis of his own analysis, without relying on the greatest decisors, may err. Nevertheless, the Maharal, like the author of Derashot HaRan, holds that halakhic decision is not only a function of truth. There is another principle, no less important, namely the autonomy of the decisor. And where the value of truth conflicts with the value of the decisor’s autonomy, the value of autonomy overrides the value of truth. He must act in accordance with what appears to him from the Talmud, even if he thereby departs from the truth.

In contrast to this, however, Ri Migash writes in responsum no. 114[16]:

But one who rules from the responsa of the Geonim and relies on them, even though he cannot understand the Talmud, is more proper and praiseworthy than one who thinks he knows the Talmud and relies on himself. For even if the former rules on the basis of reasoning that is not true, from the proofs of the Geonim of blessed memory, he nevertheless does not thereby err, because whatever he did, he did on the basis of a great court recognized by the public. But one who rules from his own study of the law may think that that law requires such a ruling when in fact it does not. His own analysis misled him, or he erred in its interpretation. And in our time there is no one who has reached such a level in Talmud that he can rely on it for issuing rulings.

At first glance this responsum seems directly opposed to the Maharal’s words cited above. Yet precisely because of the sharp opposition between these two sages, one should pay attention to the broad area of agreement between them: a. Both agree that there is a halakhic truth. b. Both agree that truth matters, and that halakhic error has a price. c. Both agree that there is value in autonomous ruling, and that it apparently overrides the value of pure theoretical truth[17]. d. Both agree that only one who has reached the level of issuing rulings may rule autonomously. Their dispute concerns only the assessment of reality: is there in their generation anyone who counts as competent to do so, that is, someone who has attained competence to issue rulings[18].

The conclusion is that halakhic decision does not necessarily reflect metaphysical-spiritual or normative truth; rather, it constitutes a balancing of several values and considerations. In our case, we have noted its dependence on theoretical truth and on the value of autonomous decision. Thus, the halakhic legitimacy granted to opposing halakhic views does not necessarily express pluralistic recognition of multiple truths, but rather consideration for the value of autonomous decision and for the duty of every decisor to rule according to his understanding, even if he is mistaken.

One Qualified to Rule: One Competent to Do So[19]

Almost all the decisors note that autonomous ruling is intended only for one who has reached the point of issuing rulings. One who has not reached that level is not qualified to act in this way, and therefore both Ri Migash and the Maharal instruct him to act non-autonomously, that is, to rely on books of legal rulings.

This also emerges explicitly from the words of the author of Igrot Moshe[20], who writes that one who has reached the level of issuing rulings is obligated to rule on his own and not to rely on the rulings of earlier authorities in legal compendia; he is even entitled, and perhaps obligated, to disagree with them. By contrast, about one who has not reached that level but nevertheless issues rulings, the Talmud says 'and mighty are all her slain'[21]. It is clear that the basis of this is that the value of truth is not entirely nullified before the value of autonomous ruling; one who has not reached the level of issuing rulings is liable to grave errors, and therefore he has no permission to rule autonomously. It seems that the source of this is the Rosh, Sanhedrin chapter 4, no. 6, who discusses at length the right and duty to rule autonomously, and applies to this the saying of the Sages 'Jephthah in his generation is like Samuel in his generation'[22]. But the Rosh too conditions this on the decisor’s being qualified.

The Rosh, the author of Igrot Moshe, and certainly the Maharal in the words cited here, all stress that the definition of being qualified is period-dependent. All of them determine that one need not be on the level of Moses our teacher or Maimonides in order to issue halakhic rulings autonomously. Every generation has standards appropriate to it.

One might have thought that the justification for relying on the decisors of our own generation is mere necessity, that is, the fact that we have no alternative—for otherwise, who would rule Jewish law for us? This is one way to understand the wording of Igrot Moshe as well. But almost always there exists the option of adopting stringency in accordance with all sides and all differing opinions, thereby playing it safe. The fact that decisors do not do this—and certainly not the author of Igrot Moshe himself—shows that they take upon themselves the authority to rule and decide even against authorities greater than themselves.

The necessary conclusion is that the reservation attached to the duty to rule autonomously, which limits it only to one who is qualified, teaches us that the value of truth is not nullified before the value of autonomy; halakhic decision is determined by weighing these two values together. At first glance, if the picture were completely pluralistic and everything were determined solely by the sage’s own view, there would be no reason to limit the duty and right to rule autonomously only to one who is qualified. The conclusion is that there is a halakhic truth, or at least that there are views that cannot be regarded as halakhic truth.

There may be two reasons that justify this limitation—that only one who is qualified bears the duty to rule on his own:

• The chance of error for one who is not qualified is too great, and therefore the price of autonomous action may be too high in terms of truth. We are prepared to take a risk of error in order to enable action in accordance with the value of autonomy. But too great a risk of error raises the price paid by the value of truth and does not allow autonomous conduct.
• The error of one who is not qualified is too far from the truth, and therefore it is not a legitimate error.

The second reason assumes that there are two circles of error in Jewish law: legitimate errors and illegitimate errors. The error of one who has reached the level of issuing rulings is legitimate, and when the expected mistake lies within that domain, the value of autonomy overrides the value of truth. But if the error is too far removed, there is no legitimacy for such a deviation from the truth, even at the cost of harming autonomy. One who is not qualified is liable to non-legitimate errors.

To illustrate the second mechanism, let us use the well-known dispute between Rabbenu Tam and the Maharal over the interpretation of the Talmudic statement that 'One appoints to the Sanhedrin only one who knows how to declare the reptile pure on the basis of the Torah'[23]. Rabbenu Tam[24] rejects the simple interpretation of the passage and argues that there is no value in such empty dialectics. But the Maharal[25] disagrees, explaining that there are indeed reasons to declare the reptile pure on the basis of the Torah, just as there are reasons to declare it impure, and all these reasons are correct. The only question is what relative weight should be assigned to them. This is the approach we earlier called the harmonistic approach.

In fact, this is almost explicit in the passage in Gittin 6b, where Rabbi Yonatan and Rabbi Evyatar disputed the matter of the concubine at Gibeah. One interpreted it to mean that her husband found a hair on her, and the other that he found a fly. The Talmud there then brings, in the name of Elijah the prophet: These and Those Are the Words of the Living God, followed by the explanation: 'He found a fly and did not mind it; he found a hair and did mind it.' Thus, each of the disputants grasped one aspect of the truth, and in that sense both were right; the question is what weight each such aspect carries, and there the decision enters.

The same is apparently true of halakhic questions. There are reasons in both directions, and all of them are correct. In that sense, all the reasons advanced by the sides—at least by those who are qualified—are correct. The dispute concerns the weight of each such reason. Here views differ, but with respect to the final ruling that emerges from the correct balancing, only one of the disputants is right. Nevertheless, the words of the other still lie within the domain of legitimate error, and one who holds that view must act in accordance with his own understanding, because for one who is qualified the value of autonomous ruling overrides the value of correct ruling.

We can now understand the second reason we suggested for the limitation of qualification. If someone is qualified, the assumption is that the reasons he advances are true. Hence, at worst he errs only in the balancing of true reasons, and therefore even if he errs, his error lies within the legitimate domain[26], and he must act according to his understanding even if he is mistaken. By contrast, one who is not qualified may advance arguments that are not correct at all, and not merely assign incorrect weights to existing reasons. Therefore, if he errs, his error may lie in the illegitimate domain, and therefore he may not rule autonomously. His error is too far from the truth[27].

These and Those: The General Model

The model we are proposing here is as follows: in many halakhic questions there are reasons supporting several sides, and all of them are correct. The halakhic ruling is produced by balancing all the reasons and arriving at a decision. Halakhic truth is the correct balance of the reasons, and here there is only one truth—at least for a given specific situation and a given person. One who errs by balancing correct reasons incorrectly commits a legitimate error; one who errs by advancing incorrect reasons commits an illegitimate error. Our assumption is that one who is qualified—that is, one who has reached the level of issuing rulings—will advance correct reasons, and at most will err in their balancing, an error in judgment. Therefore, regarding him, there is a duty to issue the law in accordance with what appears correct to him, and he is expected to act in accordance with the value of autonomy even at the expense of truth. By contrast, one who is not qualified may not rule solely on the basis of his own opinion, because there is concern that he will advance reasons that are not correct at all; then his error will be illegitimate. In such a case, the value of truth overrides the value of autonomy.

According to the model we have proposed here, the three basic approaches—the monistic, the pluralistic, and the harmonistic—are nothing more than different pieces of one picture. The monistic approach pertains to the final decision, that is, to the process of balancing the arguments, and indeed in that decision there is only one truth. Even so, the duty to act autonomously requires one who is qualified and who thinks otherwise to act differently. He is indeed mistaken, but his error is legitimate, and he must act accordingly. A pluralistic approach, which sees the possibility of several halakhic truths, is almost nonexistent, especially in halakhic sources; as we shall immediately see, it also does not withstand halakhic tests, nor does it accord with actual halakhic practice. The harmonistic approach, by contrast, operates at the level of reasons, not at the level of the final ruling. As we have seen, at the level of reasons everyone is indeed right, and the full picture is the combination of everyone’s reasons, as the Maharal held, and as we found in the passage cited above: 'He found a fly and did not mind it; he found a hair and did mind it.'

A Methodological Note: The Halakhic Test

It is difficult to derive binding conclusions from what is written in non-halakhic sources. In such sources, people mainly speak of tendencies and ideas, and are less concerned with presenting a systematic and binding doctrine[28]. It seems that the correct way to handle meta-halakhic questions in general is through study of halakhic sources and of halakhic practice, in order to see what emerges from such an empirical examination with respect to the question under discussion. The same is true, of course, of the question with which we are dealing here, namely the relation between Jewish law and truth.

At first glance, however, this would seem to be a meta-halakhic question, and as such we would not expect it to have halakhic consequences. After all, we are dealing here with understanding the halakhic process, not its contents. If so, how can we examine such a question from actual halakhic sources? Are there practical halakhic implications for the meta-halakhic claims we have raised?

We shall suggest here two perspectives, and it is entirely possible that there are others as well. We shall examine the topic of one who errs in judgment and one who errs against an explicit Mishnah, and also the topic of 'do not place a stumbling block' under circumstances of halakhic dispute. These two are halakhic indications of meta-halakhic conceptions, and therefore through them one can see, in a direct and empirical way, the attitude of Jewish law to questions of truth and dispute.

Error in Law: One Who Errs in Judgment and One Who Errs Against an Explicit Mishnah

In the monetary context, a distinction is drawn between two kinds of error: one who errs in judgment and one who errs against an explicit Mishnah. One who errs in an explicit Mishnah is someone who ruled in a way that directly contradicts a binding source—the Mishnah in relation to the Talmuds, and today other binding sources as well, though this is not the place to elaborate. One who errs in judgment is someone who rules in a way that does not stand against a binding halakhic ruling or an authoritative source. If so, how did we arrive at the conclusion that he is mistaken? According to the pluralistic approach, every exercise of judgment that passes the test of the sources is equally correct; in what sense, then, is there an error here? Against what does the mistaken ruling stand? From this it follows that it is not correct to say that every consistent halakhic position is acceptable. There are mistaken positions, despite their conformity to all binding sources. This is evidence that flatly rejects the claim of substantive halakhic pluralism.

To be sure, one cannot infer from this with necessity that all positions but one are mistaken. The necessary conclusion is only that a situation is possible in which certain positions are mistaken, even if they conform to the sources. But if this is indeed the case, the question returns: how are we to distinguish between mistaken positions and correct ones? The reasonable conclusion, even if not a necessary one, is that in general there is indeed only one halakhic truth, and all the others are mistaken. It is also possible that there are disputes between authorized halakhic positions in which we will relate to both sides as words of the living God, and yet one of them is mistaken—except that the mistake is legitimate.

In the terminology we introduced above, an error in balancing the various reasons is an error in judgment. The expression shikul ha-da’at is connected to weight—that is, assigning incorrect weight to the various reasons—as distinct from taking account of incorrect reasons, which is parallel to an error against an explicit Mishnah. Thus, this pair of terms corresponds to what we above called legitimate and illegitimate error.

It should be noted that in the Sanhedrin passage[29], and following it in the Shulchan Arukh[30], the examples of one who errs in judgment are of someone who ruled in accordance with an earlier decisor in a case where a custom had spread among the public in accordance with another decisor who disputed him. This is not an error in judgment as we depicted it above, but rather an error that is, in essence, closer to an error against an explicit Mishnah, though somewhat milder. Yet from the term one who errs in judgment it is clear that the fundamental intention is indeed an error in judgment. However, in order to set clear halakhic standards for such a situation—for it has halakhic consequences, and the ability to apply them depends upon clear and unequivocal definitions—there is no choice but to set objective criteria, such as the spread of an opposing custom among the public. But this is only an objective halakhic indication of an error in judgment, not a definition of the concept itself. Indeed, in the literature of the decisors we find quite a few statements using the language of error in judgment where the intention is judgment based on mistaken reasoning, not on a view that was not accepted[31].

The Law of 'Do Not Place a Stumbling Block' in a Situation of Halakhic Dispute[32]

The second halakhic aspect from which one can examine the question of the relation between Jewish law and truth is a situation in which there is a dispute in Jewish law, and person A, who holds that a given piece is permitted, wonders whether he may feed it to person B, who holds that this piece is forbidden—or vice versa. This seems to be an indication of how each of us ought to relate to positions that stand in opposition to his own, and to the question whether there is a halakhic truth.

In tractate Sukkah 10b, an amoraic dispute is brought concerning a sukkah whose ornaments are suspended four handbreadths below the roofing. Rabbi Nahman holds that it is permitted to sit beneath those ornaments, whereas Rav Hisda and Rabbah bar Rav Huna forbid it. A case is then described in which the two who prohibit came to the house of the Exilarch, and Rabbi Nahman seated them in a sukkah whose ornaments were suspended four handbreadths below the roofing—which, according to their view, was invalid. At first glance, there is here a transgression of 'do not place a stumbling block,' for he caused them to eat or sit in something forbidden according to their view.

The Ritva, in his novellae ad loc., derives from here that one who holds a certain item to be permitted may feed it to his fellow who holds it to be forbidden, and there is no prohibition of 'do not place a stumbling block' in this. He adds, on the basis of Hullin 111b, that this is true only if the matter is evident to the eater—'if he does not agree, he should not eat'—but if the prohibition is not evident, one may not feed it to him, for the Talmud says there: 'Far be it from the descendants of Abba bar Abba to feed me something I do not accept'[33].

The halakhic situation created by the Ritva’s qualification is not clear. At first glance there is no novelty here at all, since where the prohibition is evident, the eater himself can decide whether he thinks it is permitted or forbidden. In such a case there is no prohibition of 'do not place a stumbling block' on the one who feeds him, because the decision is the eater’s. And at first glance, on a Torah level it is certainly not forbidden, for there is no case of 'two sides of the river.'

To understand this, let us compare the present case to that of handing a cup of wine to a nazirite, to which the Talmud applies the Torah prohibition of 'do not place a stumbling block' in a case of 'two sides of the river' (Avodah Zarah 6b). After the cup of wine is handed to the nazirite, he still has the choice whether to drink, and he certainly knows that it is wine. If so, why does the one who hands it over violate 'do not place a stumbling block'? It is therefore clear that the concept of 'two sides of the river' refers to a situation in which the stumbling person could not have committed the transgression without the assistance of the one who causes him to stumble. But the fact that the stumbling person himself consciously decides to commit the transgression does not exempt the one who causes him to stumble, because he is commanded not to bring the stumbling person into a situation in which he will commit the transgression, even if the latter will do so by his own conscious decision.

If so, in our case there is apparently a clear halakhic difference between a situation in which Reuven hands Shimon something that is clearly forbidden, and a situation in which Reuven hands Shimon something that Reuven himself regards as permitted and only according to Shimon’s view is forbidden. In the first case there is a prohibition of 'do not place a stumbling block'; in the second case there is not.

At first glance, one might infer from this that the prohibition is determined by the view of the one who commits the transgression, and if the transgressor thinks the matter is permitted, there is no prohibition of 'do not place a stumbling block.' But that is not so, for in the case discussed in Sukkah it is quite clear that the two sages did not retract their position, and they still thought it forbidden to sit beneath such ornaments. If so, why does the fact that they were aware of the situation permit Rabbi Nahman to cause them to stumble? It would seem that the basis of the permission is not their awareness, but the fact that Rabbi Nahman himself thinks the matter is truly permitted, and according to his own view there is no prohibition of 'do not place a stumbling block' here.

If so, the conclusion is exactly the opposite of what we had thought above: the prohibition is objective, and therefore the opinion of the person who stumbles is not important for the decisions of the one who causes him to stumble. If the latter thinks the prohibition does not exist, there is no problem here, and therefore he may feed even someone who thinks the matter is forbidden. After all, in practice there is no transgression here. But now the question arises from the other side: why, when the stumbling person is unaware of this, is it forbidden to hand him the item? After all, in practice there is no handing over of a forbidden thing, and therefore there should also be no prohibition of 'do not place a stumbling block.'

We are forced to conclude that in such a case the value of halakhic truth is indeed not harmed, for in the eyes of the one who causes the stumbling the halakhic truth is that the matter is permitted; but what is harmed here is the value of autonomy. As we saw above, a person ought to act consciously and in accordance with his own decisions and reasoning. If I cause him to stumble in that he is not acting on the basis of his own best judgment, that too falls under the prohibition of 'do not place a stumbling block'[34].

Let us summarize the argument here. According to the pluralistic picture, in which halakhic truth exists only according to a person’s own view, there would be no room to permit causing another to stumble in the manner Rabbi Nahman did. By contrast, according to the monistic position, it would seem that in every case he could have caused his colleagues to stumble, since after all, according to his own view, the halakhic truth is that they committed no transgression. The complex situation we have described here, which distinguishes between a case where the prohibition is evident and a case where it is hidden, can be understood well in light of the model we have proposed. According to this model there is one halakhic truth, arising from a correct balancing of all the reasons, and every person is supposed to act according to his best estimate of that truth. But in addition there is also the value of autonomous decision, and therefore a person’s own opinion has halakhic weight even if it does not hit the truth. Even Rabbi Nahman, who thought his colleagues mistaken, had to give weight to what appeared to him as their legitimate error, and therefore he was forbidden to cause them to stumble in this respect.

The conclusion that emerges from this is that we have found a halakhic passage that resolves the meta-halakhic question of a multiplicity of truths in a halakhic dispute. We have seen that there are indeed two layers: halakhic truth, which is one, and in addition the obligation to act autonomously. Both these values are important, and the combination of the two is what creates the halakhic ruling—that is, what a person is obligated to do. As we saw above, this picture gathers two of the three directions that usually arise in explaining the rule These and Those under one roof (and we have already noted that the third direction, namely the pluralistic approach, is simply mistaken).

Halakhic Practice: A Decisor’s Casual Remarks

When we examine the discourse of the decisors in their unguarded remarks, we discover a clear conception regarding the existence of a definite halakhic truth and concern over error. There are countless examples of this[35]. One of them appears in Rabbi Kook’s letter to the author of Sdei Hemed[36]:

For in truth one cannot say that because one sage was seen to be sharper, or more firmly grounded in the tradition of his teachers, it follows with absolute necessity that the law is according to him, for sometimes the lesser sage aims at the truth more accurately… The Sages saw fit to establish rules of halakhic decision because disputes among the sages had multiplied in most areas of Torah law, and they were concerned about dispute in Israel and that the Torah not become like two Torahs… Since they had to establish the law because of this great need… they therefore decided in accordance with whatever advantage they found in the sage. But since this matter is not a complete clarification and was done only for the sake of social order…

Rabbi Kook, speaking casually, assumes that there is a halakhic truth and that halakhic decision constantly worries about error—precisely within a discussion that deals with the legitimacy of differing opinions. Even so, according to him, halakhic decision sometimes takes account of factors beyond the question of truth, as we saw above. To the best of my knowledge, we do not find statements by decisors according to which there is no problem in ruling contrary to the truth because there is no truth, or because every authorized opinion is halakhically true. Our conclusion is that there are indeed mechanisms that create a pluralistic appearance in Jewish law, but this is not its true character.

Conclusion

The concepts of truth and deviation from truth are so commonplace in the mouths of the decisors that one may conclude with confidence that claims of substantive pluralism in Jewish law have no real foothold in the sources of Jewish law, and certainly not in actual halakhic ruling. That opinion is generally produced by study of non-halakhic sources. Study of Jewish law itself, and examination of the intuitive ways in which decisors speak in the course of their work, point to the monistic-harmonistic model we have proposed. We explained that the pluralistic appearance of Jewish law is usually generated by the fact that there is sometimes halakhic legitimacy for rulings that are not in accordance with the truth, by virtue of additional values such as the authority of the Sanhedrin, the autonomy of the decisor, social order, and the like. But that is not a pluralistic approach; it is a tolerant one. In many cases there is only one halakhic truth, and yet Jewish law adopts a tolerant stance toward one who acts otherwise, despite the fact that he is mistaken—at least if his error is legitimate and if he is qualified—because of values that stand alongside the value of truth. As we saw, there is a certain pluralism in Jewish law at the level of reasons, for we often conclude that all the halakhic reasons are together correct. This is a moderate pluralism, since it does not recognize a multiplicity of truths, but rather the contribution of all partial truths to the one complete truth—harmonism. Still less can one speak of pluralism at the level of balancing those reasons and arriving at the halakhic ruling; there we speak mainly of tolerance toward those worthy of it—those who are qualified—but not of substantive pluralism[37].

[1] Eruvin 13b. In Gittin 6b this rule appears with respect to an aggadic dispute between Rabbi Evyatar and Rabbi Yonatan (see below), but it is hard to see there a general source from which one may infer to the whole expanse of Jewish law.

[2] See Ritva to Eruvin 13b.

[3] There are several different interpretations of this rule among medieval authorities (Rishonim) and later authorities (Acharonim), and this is not the place to elaborate. Prof. Avi Sagi, in his book These and Those (Hakibbutz Hameuchad, Tel Aviv 1996), sketched a varied and complex map of attitudes toward this rule, and from his account it appears that almost all theoretical possibilities—dozens of different approaches—did indeed arise, in one way or another, among the commentators.

[4] Eruvin, ad loc.

[5] The intention here is not the question of the relation between Jewish law and reality. The term truth as used in this article concerns halakhic truth, that is, truth on the normative plane.

[6] Sagi, in the book mentioned above, note 3.

[7] In Rabbi Yeshua HaLevi of Tlemcen’s book Halikhot Olam, Tel Aviv 1970, p. 51.

[8] In Part II of his book, Sagi argues that the pluralistic approach is also found among several commentators. Now, Part I opens by citing sources that support the monistic approach, and only afterward begins its discussion of that approach’s implications. By contrast, Part II of his book, which deals with the pluralistic approach, does not open by citing sources that support it, but goes directly to discussion and implications. In Part III Sagi discusses the harmonistic approach, and there, somewhat strikingly, sources espousing that position are once again brought at the opening of the discussion—Rabbi Tzadok HaKohen of Lublin, the Maharal of Prague, and Rabbi Kook—and only afterward is there a discussion of the implications of that position. Apparently the main reason Sagi does not bring sources for the pluralistic approach is that it is very difficult to find such sources among halakhic decisors. To be sure, there are statements that sound pluralistic, but very few sources, if any, express substantive pluralism. For example, the midrashim that speak of a dispute in the heavenly academy regarding halakhic questions (see Bava Metzia 86a and Responsa Min HaShamayim no. 3), or the heavenly voice in the Oven of Akhnai passage (Bava Metzia 59a), are not necessarily interpreted in a pluralistic way. On the contrary, on their face they seem to express specifically a position according to which there is one truth, since the Holy One, blessed be He, supports only one of the views. There is indeed tolerance for other views, and some legitimacy exists for incorrect positions, in the spirit of 'My children have triumphed over Me' and 'it is not in heaven' (we shall return to this point below). Nor do the words of the Maharshal, which are cited extensively in the second part of the book, express pluralism at all. On the contrary, they express a striving for the one and only truth, and its total dependence upon proofs and demonstrations. The novelty of the Maharshal is only that the search for truth does not mean absolute subordination to the greatest earlier decisors (see below, note 24). The same is true of almost all the sources brought in the second part of the book. To the best of my understanding, the only source that may perhaps be interpreted in a pluralistic way is the view of Maharam Gabai in his book Avodat HaKodesh, Jerusalem 1973, section HaTachlit, and even there a disputant might challenge that reading. This is not the place to elaborate.

[9] Incidentally, the converse is not necessarily true. Not everyone who gives a reason such as 'so that the Torah not become like two Torahs' necessarily espouses a pluralistic model. There may be one truth, but after the inquiry is complete and we have not reached it, it might have been appropriate to allow each person to act according to his own understanding; nevertheless the Torah instructs us to issue a ruling so that the Torah not become like two Torahs. For a clear example, see the citation from Rabbi Kook at the end of this article.

[10] See our article on this in the Midah Tovah page for Parashat Bemidbar, 5766.

[11] For fuller detail, see the aforementioned article.

[12] This is the formulation of Russell and Whitehead’s theory of types (see their introduction to Principia Mathematica), which was created in order to solve paradoxes arising from self-reference. According to this proposal, a proposition cannot refer to propositions on the same hierarchical level on which it itself stands.

[13] The reasoning for this claim is almost like a proof of a mathematical theorem, and this is not the place to elaborate.

[14] Feldman edition (Jerusalem 1977), pp. 198–201.

[15] Eruvin 13b.

[16] See also Prof. Menachem Elon’s Jewish Law (third edition, Jerusalem, Magnes 1992), p. 977 and pp. 1150–1151.

[17] For Ri Migash too says that if there had been, in his own time, someone fit to issue rulings, that person would have had to rule according to his own analysis.

[18] Perhaps the dispute is not about reality, but about the halakhic question of who can be considered competent to do so.

[19] See on this in greater detail in my article in Meisharim 1 (Yeshivat Yeruham, 2004).

[20] Both in his introduction to Orah Hayyim and in the responsum, Yoreh De’ah, part I, no. 101.

[21] This also emerges from the words of the Rema, Hoshen Mishpat no. 25, at the end of paragraph 2, cited below (and the source is in the Rosh, who will be cited below).

[22] See Rosh Hashanah 25b.

[23] Sanhedrin 17a. See also Eruvin 13b.

[24] Sanhedrin ad loc., Tosafot s.v. 'who knows'.

[25] Derush LaTorah, fol. 24.

[26] Below we shall define this as one who errs in judgment.

[27] Below we shall call this one who errs against an explicit Mishnah.

[28] The different approaches surveyed in Sagi’s These and Those, cited above in note 3, are all the result of examining introductions to halakhic books, works of Jewish thought, and even publicistic essays or Torah commentaries, but without examining actual halakhic sources. This is characteristic of a considerable portion of academic meta-halakhic research. However, as is well known, one does not learn Jewish law unless one is told the practical law. Merely by way of illustration, the reader is referred to my aforementioned article in Meisharim 1, where I discussed an example from the teachings of the Maharshal, who in his publicistic remarks appears as one who almost completely ignores all the decisors who preceded him and decides only according to his own opinion—he was prepared to decide by proofs even in a dispute among tannaim. But when one examines the matter in practice in his responsa, one receives a completely different perspective. There he does indeed show not a little audacity, but in essence he occupies himself with the teachings of his predecessors and clarifies them, and usually rules in accordance with their conclusions.

[29] 6a; see also 33a.

[30] Hoshen Mishpat, beginning of no. 25.

[31] See the aforementioned Rosh, and the responsa of the Radvaz, part IV no. 54, and Maharik nos. 8–10, and clear examples in the responsa of Beit Yosef, Ketubbot no. 1, s.v. 'and furthermore, even if', and Laws of Gittin and Divorce no. 13, s.v. 'I am greatly astonished', and many others. However, in the responsum of the Mabit, part I no. 62, s.v. 'I considered', it appears that the Mabit understands the Talmudic definition as the substantive definition of one who errs in judgment. Even there, however, the intention could be that he views the indication appearing in the Talmud—that a custom contrary to the ruling under discussion has spread—as a binding criterion, but not necessarily as a definition of the concept itself.

[32] See on this in the book Lifnei Iver, Rabbi Yitzhak Eliyahu HaKohen Adler, Bnei Torah edition (Ofakim 1989), no. 11.

[33] And so too it is brought in Maharlbach responsa no. 121 in the name of the Ra’ah; see there.

[34] It should be noted that this is a novel point in the parameters of 'do not place a stumbling block': that it is forbidden to harm halakhic autonomy and not only halakhic truth. But one should remember that the prohibition of 'do not place a stumbling block' also includes simply causing harm to a person, even harm that is not halakhic at all, such as causing him to fall into a pit. Therefore some have written that causing another to violate even a rabbinic prohibition is itself a Torah prohibition of 'do not place a stumbling block,' for it is no less serious than bringing something harmful, even something not halakhic at all, upon one’s fellow, which is likewise forbidden because of 'do not place a stumbling block.' I later saw that the Ketav Sofer wrote this explicitly in Yoreh De’ah no. 77 regarding the matter under discussion. Let us add that some decisors did indeed understand otherwise (see, for example, Peri Hadash, 'Customs of Prohibition,' no. 23, and Tiferet Yisrael on Eduyot, chapter 4 mishnah 8), namely that in such a case there would not be a Torah prohibition of 'do not place a stumbling block.' Their proof is from Yevamot 14a, where it is described that Beit Hillel and Beit Shammai would inform one another of the existence of a prohibition according to their respective views. Apparently, according to them, harm to autonomy is not literally 'do not place a stumbling block.' This approach strongly proves our point, since its basis is the distinction between harm to autonomy and causing actual transgression. Nevertheless, quite a number of decisors saw even this as a Torah prohibition (see, for example, Binyan Tzion no. 62 and the Ketav Sofer cited above, and others).

[35] We mentioned above the words of the author of Igrot Moshe, who elaborates on this. Another example appears in Maharik no. 165, where he discusses the rules of law in the Talmud and the question whether one should decide even in topics that are not practical, and it is clear from his words that he sees Jewish law as a movement striving toward truth. He only adds that sometimes the determination of the law is made not only by means of clarifying the truth but also by virtue of additional considerations, akin to what we saw above in Derashot HaRan and elsewhere. These additional considerations create the pluralistic appearance of Jewish law.

[36] Rihata DeHaklai, Sdei Hemed, vol. I (Asifat Dinim), p. 19, s.v. 'and concerning the words of'.

[37] In principle, one can also relate to the overall balance of truth together with the value of autonomous ruling as what is called halakhic truth, and say that Jewish law acts only in accordance with truth. For example, in the case from Derashot HaRan cited above, one might say that the elder’s decision to act in accordance with the ruling of the Sanhedrin is itself the true halakhic decision, and that there is no surrender of truth to the value of authority, since authority too is a halakhic value and with respect to it as well there is a halakhic truth. After all, 'do not turn aside' is also one of the Torah’s prohibitions, and it too must be taken into account when examining what the halakhic truth is. Such a definition, of course, empties our discussion entirely of content, but this is a semantic move that has no substantive significance for the matter under discussion.