Meysharim – 5763

It is not clear why the remarks of the Rid were omitted from his responsa (sec. 2 and another parallel?? See also Sagi’s book, ‘Elu VaElu’).

See also the Shakh, Hoshen Mishpat sec. 66, subsec. 126, who writes that one should not rule by the majority when one knows the truth, and therefore there he ruled like Maimonides against the majority of the medieval authorities (Rishonim).

Regarding all of our discussion, see further Encyclopedia Talmudit, entry ‘Halakhah,’ subsec. 12 and 32, at length.

See the responsum of Divrei Chayim of Sanz, Even HaEzer sec. 8, which forcefully disputes the Noda B’Yehuda
(whom he generally esteems very highly) over whether one may dispute the words of R. Judah he-Hasid with proofs from the Talmud.

I was also told that the words of Ben Azzai at the beginning of Horayot deserve discussion. I have not checked.

 

An analysis of the medieval authorities on the Bava Batra 62b passage

• Introduction

They tell of the author of Tumim, R. Jonathan Eybeschutz, that a gentile asked him why we Jews do not abandon our faith and follow the gentiles, who are the majority, since our Torah says follow the majority. R. Jonathan answered that following the majority is a rule for conduct in a state of doubt, whereas with respect to our faith we are not in a state of doubt at all. In a matter of which we are certain, there is no place whatsoever to follow the majority.

This is of course true with respect to all rules of decision in situations of doubt. The relevance of such rules depends on our deciding that we are indeed in a state of doubt. If we are not in a state of doubt, there is no place at all for using rules of conduct for doubtful situations. No one would think of following the majority of non-kosher butcher shops in the city and declaring a piece of meat non-kosher, or of ruling that a Torah-level doubt must be treated stringently and therefore declaring that piece non-kosher, when he knows with certainty that it is fully kosher according to the law.

In this article I want to discuss whether this distinction can be applied to a doubt created by disagreement among authorities. In other words: may we decide disputes among halakhic decisors ourselves, thereby determining that the issue is not doubtful in our eyes? Or, when there is a disagreement among decisors on a given matter, are we obligated to conduct ourselves according to the rules governing doubt, such as stringency in Torah-level doubt and the like?

In the chapter ‘Hazakat HaBatim’ (Bava Batra 34b–35b), several rules of decision are discussed that are relevant to situations of monetary doubt. In this area we find different rules of decision that apply in different situations, such as division, ‘the burden of proof lies with the claimant,’ ‘whoever is stronger prevails,’ judges’ discretion, ‘let it lie,’ and the like. These rules govern halakhic conduct in a situation where ownership of the money is doubtful, and the choice among them depends on questions such as the parties’ presumptive possession of the object, whether the ruling can be true, whether both parties have a clear relation to the object, and the like.

In contexts of prohibition and permission as well, there are rules of decision for different doubtful situations. In these areas, however, the rules are usually different: leniency in rabbinic matters and stringency in Torah-level matters; following the majority (the majority of decisors, or an empirical majority, as in the example above); following custom; following one’s rabbi (or the local halakhic authority); following the one greater in wisdom and number; following the majority of decisors (or the majority of recognized decisors, those whose books have gained acceptance in Israel); following a specific decisor whom we have accepted upon ourselves; and the like.[1]

Some of the discussions about ruling in situations of doubt, as well as some of the above rules of decision, concern doubts that are doubts about the law. These are doubts not about the factual reality, but situations in which the facts are entirely clear and known, yet there is uncertainty as to what binding law applies in that situation. This kind of doubt can appear in two basic forms: 1. A new situation that we encounter, for which, as far as we know, there are no direct halakhic treatments, and therefore it is unclear to us what the law is in such a case. 2. A situation in which Jewish law contains an unresolved dispute about such a case, that is, there are opinions in both directions.

It should be noted that the second type can appear on several halakhic levels. There may be a dispute among tannaim, amoraim, Rishonim, or Acharonim. Of course, the Torah-halakhic weight of the disputing sides is also important for purposes of decision, but that is not our subject here.

A widespread halakhic approach today to conduct in situations where decisors disagree is to use rules of decision for doubtful situations. In such cases we usually follow custom, a particular rabbi, or stringency in Torah-level matters and leniency in rabbinic matters. Similarly, in monetary doubts we rule division, ‘the burden of proof lies with the claimant,’ judges’ discretion, and the like. In this article I wish to examine a more basic question: whether, and when, we have the authority to decide that a certain situation is not a situation of doubt at all, and therefore there is no place to use rules of decision that apply only where doubt exists.

This question is relevant mainly to legal doubts and less to factual doubts, since by its nature the decision that reality itself is doubtful is more unambiguous. If we are in doubt, then we should conduct ourselves according to the rules of doubt; if not, then not. With respect to legal doubts (and also doubts in monetary law), one can distinguish between the two types of doubt mentioned above. In the first type (situations unfamiliar to us in Jewish law), such a problem would not likely arise, since if in fact we are in doubt, then for us this is a doubtful situation. In this respect such a case is very similar to a doubt about reality.

The question arises mainly in situations of the second type, that is, situations in which there are different opinions among decisors. In such situations we can ask ourselves whether this is necessarily a case that must be treated as doubtful, so that we must conduct ourselves according to the rules of doubt, as described above; or whether we may somehow decide for ourselves between the differing opinions, and therefore not regard the matter as one involving halakhic doubt.

In principle one can raise an additional possibility for handling such doubts: arbitrary choice. To choose for ourselves the convenient opinion, or the one that seems right to us. On this see Rabbi Elisha Aviner’s article ‘Arbitrary Ruling in Disputes among Decisors.’[2] In the first article in that same booklet, entitled ‘Rules of Instruction in Doubtful Laws,’ Rabbi Aviner addresses rules of ruling in situations of doubt. In this article we discuss another possible mode of conduct, one that precedes both of these: deciding disputes among decisors ourselves. If it is indeed possible to decide such disputes ourselves, then for us the situation is not doubtful at all, and therefore neither of the two modes mentioned above is relevant (ruling according to rules of doubt, or choosing a course arbitrarily).

It should be noted that the very existence of the concept of a doubt created by disagreement among authorities seems to indicate that one cannot decide such disputes, for otherwise such a concept would not exist at all. If indeed, whenever there is a disagreement among decisors, we are to decide for ourselves, then we are not in doubt. And even if it turns out that we ourselves are uncertain in this law and do not decide, that would be a legal doubt, not a doubt arising from disagreement among authorities. That is, the very existence of such a category indicates that there is a kind of doubt whose source lies in disputes among decisors in Jewish law. It is possible, however, that those who adopt an autonomous approach to halakhic ruling, those who would permit independent decision in disputes among decisors, indeed would not recognize such a concept, or its uniqueness, and would at least greatly limit its scope.

Approaches that advocate autonomy

A sharp discussion of the issue of autonomy in ruling appears in several places in the writings of Maharshal. In his introductions to Yam Shel Shlomo (to Hullin and to Bava Kamma), he writes that halakhic ruling should not be based on precedents, but only on deciding on the basis of proofs from the Talmuds.[3] In his introduction to Bava Kamma he writes:

For since the days of Ravina and Rav Ashi, there is no received tradition to rule like any one of the Geonim or the later authorities. Rather, we follow whoever’s words are fit to be founded on decisive proof from the Talmud and the Jerusalem Talmud, and from the Tosefta where the Talmud does not decide.

Another example from Maharshal’s writings appears in Yam Shel Shlomo, first chapter of Hullin, toward the end of sec. 42, where Maharshal discusses the melikah of a bird sin-offering, and writes:

For if we merit the rebuilding of the Temple, I hope that I have ruled correctly according to Jewish law; and although Maimonides was great in Torah, and the Semag brought proof for his words, and the Raavad likewise did not challenge him, nevertheless I will not show favoritism in Torah, and I examined the matter as far as my hand can reach.

In these passages Maharshal discusses ruling against great Rishonim, on the basis of proofs from the Talmud. In the second chapter of Bava Kamma, sec. 5, he addresses an even more extreme situation, where a problem was not resolved in the Gemara itself, and argues that even in such a case we may enter the problem and decide, on the basis of proofs, for one side or the other. He writes there:

And even though the Talmud does not decide, I have come to decide… In a case of teiku, where the question was left unresolved in the Talmud and was not settled, no Gaon in the world has authority to resolve it from a Mishnah, a baraita, or reasoning, for that would be like disputing the Talmud of Ravina and Rav Ashi, just as one may not answer a refutation stated in the Talmud. But with regard to many questions raised in the Talmud and not resolved, if some sage, even in our own time, brings proof to resolve them, he has the authority, and we follow him. For since the word teiku was not stated, the matter remains doubtful until its resolution is clarified for you…

Maharshal determines that any problem not resolved in the Talmud (and it would seem that he means not only unresolved problems but also disputes among amoraim or tannaim) may be resolved by any decisor in any generation on the basis of his own proofs. However, if the Talmud itself declares that the matter ends in teiku, or in a refutation, then it cannot be resolved.[4]

We thus see that according to Maharshal there is indeed a concept of a doubt arising from disagreement among authorities, but it is extremely narrow. Only disputes that remained unresolved in the Talmud itself receive the status of such doubt. In all other cases we are to rule on our own.

Let us add another example, from the words of R. Jacob Emden in She’elat Ya’avetz, vol. 2, sec. 126:

Even toward men a thousand times greater than I, I will not show favoritism in Torah: where there is an error I say there is an error, where there is an omission—an omission… And I heard from my father, the gaon Hakham Tzvi, of blessed memory, in the name of the author of Helkat Mehokek, of blessed memory, that a person is not permitted to issue halakhic rulings until he has the power to uproot and erase a clause from the Shulchan Arukh.

And well known is Maimonides’ statement that in matters of halakhic ruling even the power of prophets is no stronger than that of the sage; rather, we follow either the numerical majority or the force of the proofs, according to what the sage sees. And so has been the practice of the sages of the generations from time immemorial. One does not attend to the scale of a ruling contained in an earlier or later composition when faced with decisive answers.

I further saw in Takfo Kohen by the Shakh (from sec. 79 onward) that he elaborates in proving that seizure is effective in a dispute among authorities even according to the view that in cases of teiku seizure is ineffective, and he offers three reasons for this. The second reason appears there in sec. 85:

For in a teiku, since it can never be clarified, because no person can resolve it once it has stood as teiku from the time the Talmud was sealed, therefore the doubt arose immediately at the time of the sealing of the Talmud, and any seizure is considered a seizure after the doubt arose, as I wrote above in sec. 7.

But in a dispute among great authorities, since the judge has the power to decide from the Talmud or the decisors, even by his own reasoning, like one of them—and even if this case once arose and the judges could not decide, if it now comes before another judge he may decide, for everything depends on the judge before whom the case comes, as Maharshal wrote in chapter ‘How the Foot Damages,’ sec. 1, and as I wrote above in sec. 82 in the name of the responsum of the Geonim, and this is very simple… Therefore whenever one party seized, it is considered a seizure before the doubt arose, for if the judge had decided like one of them he would have had the power to instruct that way. It follows that the doubt does not arise until the time the case comes before a judge and he is unable to decide. This distinction seems to me clear and true [and see there sec. 86, where he brought proof for this from a responsum of Maharibal].

A similar approach may also be found in Kuntres HaSefeikot (especially in principle 5; see, for example, sec. 3 there). See also his remarks in principle 6, subsec. 6, cited below at the end of chapter 2 (regarding kim li).

We conclude this section with a quotation from Hut HaMeshulash, by R. Haim of Volozhin, at the end of sec. 9. After discussing a ruling contrary to the view of his teacher the Kohen (apparently R. Raphael Kohen; see Aliyot Eliyahu, note 62), he cites a tradition from his teacher, the Vilna Gaon:

But with regard to Torah, of which it is written ‘truth,’ surely our eyes are directed only to truth… And I was already warned about this by my teacher, the holy one of Israel, our great master, the pious gaon Rabbi Elijah of Vilna, of blessed memory, not to show favoritism in issuing rulings, etc.… [And in the book ‘Aliyot Eliyahu,’ note 62, this responsum is cited, and the following is added here: ‘not to show favoritism in issuing rulings, even toward the decisions of our masters, the authors of the Shulchan Arukh.’ In the printed edition this addition was omitted.]

See there in the full context (and in what he cites from the Gemara, Bava Batra 130), and also at the end of sec. 11 there.

The accepted approach today

The accepted approach today to a doubt arising from disagreement among authorities, at least in extreme cases such as an unresolved dispute among tannaim or amoraim, is that the matter cannot be decided by us. It seems that today no one would imagine deciding, by proofs, a dispute left unresolved in the Talmud itself. In such cases we decide according to rules of conduct in situations of doubt.

In less extreme cases the question can still arise. For example, when there is a dispute among decisors, among Rishonim, and certainly among Acharonim. In such a situation, must we always act according to the laws of doubt, or can we determine the law on our own understanding and then treat the matter as though there is no legal doubt for us?

In practice, toward the end of the period of the Rishonim, the approach that held that we lack the ability to decide disputes among the Rishonim became especially prominent. This is reflected in the Shulchan Arukh and its commentaries; indeed, the very editing of the Shulchan Arukh and the Mapah of the Rema expresses such an approach. Strong echoes (in my opinion, almost the last echoes) of a different approach may be found in the generation of the Mehaber and the Rema, in Maharshal (as we saw above) and Maharal (whose remarks will be discussed below).

This stands out very clearly in the words of Terumat HaDeshen, sec. 352, who writes:

For the great authorities above disagree about it, and since we do not know in accordance with whom the law stands, the law is that they divide… I wanted to say that all these cases of division are because they are cases of genuine doubt; but where the doubt in the law stems from a dispute among great authorities, if neither of them seized, we should perhaps say ‘whoever is stronger prevails’… Therefore we must distinguish between a legal doubt that exists because of a dispute among great authorities and a legal doubt because the matter stands as teiku, for there the great authorities wrote that they divide… But in our case, involving a dispute among great authorities, that reason does not apply, for who can testify for us that the law follows this view or that view? Therefore we need to make a division… I have elaborated on these matters because they are broad general principles in monetary law.

Terumat HaDeshen discusses what we should rule in a case of disagreement among authorities: division, ‘whoever is stronger prevails,’ or judges’ discretion. It is quite clear that the possibility of actually deciding the dispute does not even enter his mind. Beyond that, he writes in the course of the discussion, who will testify to us that the law follows this one or that one (‘who will testify to us that the law follows this one or that one’); this seems to prove that in his view disputes among decisors cannot be decided.[5]

It should be noted that similar formulations can already be found in earlier Rishonim, but usually those discussions concern cases where the Talmud ends in teiku, or where the Talmud itself speaks in a way that points to doubt or teiku. See, for example, Tosafot s.v. ‘Vehilkheta’ in Bava Batra 32b and Tosafot s.v. ‘Ve-hakhamim’ in Gittin 14b, and others.

Following these remarks of Terumat HaDeshen, the Rema writes in the Shulchan Arukh, Hoshen Mishpat at the end of sec. 139:

Gloss: In a matter over which the decisors disagree, and neither party has seized it, if it is something that can be divided, they divide it; and if it is not something that can be divided, whoever is stronger prevails.

Below we shall see that Tosafot on Bava Batra 62b maintain that a judge can decide such disputes among authorities on his own. Of course, if the judge himself remains in doubt, one must certainly discuss which rule he should follow. Therefore one might have suggested that Terumat HaDeshen too refers only to a case in which the decisor himself has no position on the issue under discussion, and therefore remains with a disagreement among authorities; only then does the discussion begin whether to divide, apply ‘whoever is stronger prevails,’ and the like. Usually, however, that is not how the words of Terumat HaDeshen and the Rema are understood, and the plain sense of their words seems not to support such a reading. See further the Sema, the Shakh, and the other commentators on the Shulchan Arukh there.

I did, however, find in the Gra’s glosses to the Shulchan Arukh there that he cites this Tosafot. He writes:

And see Tosafot at the beginning of ‘HaMokher et HaBayit,’ 62b, s.v. ‘Itmar,’ etc.; although there the entire discussion concerns a case in which one party is in possession, nevertheless Tosafot did not stop at the basic explanation of the Gemara’s chapter and said, ‘Here it seems proper to rule,’ etc. See there.

The wording of the Gra is not entirely clear: whether he refers to Tosafot’s discussion of the sugya itself, whether to rule division or judges’ discretion, or to the principled claim appearing there at the end of Tosafot, namely that it is possible to decide disputes among decisors. The quotation he brings from Tosafot does not actually appear in the Tosafot before us; the closest wording appears at the beginning of Tosafot’s remarks when discussing the sugya itself. As noted, we will discuss those Tosafot below.

The nature of what the early decisors were doing

One might have thought that Maharshal’s position contains no novelty at all, for all that the early decisors did (such as Rif, Maimonides, the Rosh, and others) was to decide disputes that remained open in the Talmuds. If so, it would seem obvious that there is no principled objection to doing so; the only question is who has the authority and ability to do it. On the other hand, for some reason Maharshal’s remarks sound surprising in their force, and they have aroused, and still arouse, sharp opposition (see, for example, Noda B’Yehuda, second edition, Yoreh De’ah sec. 53, and more).

The reason is that the nature of the work of the decisors is not all that unambiguous. In a significant portion of disputes, the decision follows rules of ruling that grant general priority to one sage over another (for example, the law follows Rav Nahman / Samuel in monetary matters, Rav in matters of prohibition, Rabbi Akiva against a single colleague but not against colleagues, Rabban Shimon ben Gamliel in our Mishnah, and so forth). It is clear that such rulings do not constitute a decisor’s own independent resolution of open Talmudic disputes. This perhaps depends on the question of the source and meaning of those rules, but that is beyond our present concern.

Another method of deciding, also very common, is to find an anonymous sugya that follows one of the opinions. This is evidence in favor of one of the disputants, but it relies on the Talmud itself rather than on the decisor’s own view. One can see such a case as one in which the Talmud itself decided the issue in that sugya, and therefore this too is not an independent decision by the decisor.

It should be noted that even with these two types of decision, disputes can arise among decisors, and they indeed do. Even in these procedures, judgment and discretion are involved, and the process is by no means merely mechanical. Nevertheless, in these methods each decisor rules according to what he understands the Talmud itself to decide, not by the force of his own opinion and reasoning.

An explicit decision between amoraim or tannaim because one opinion seems more persuasive is exceedingly rare among the Rishonim, and with some of them it is not found at all. Therefore it is quite plausible to understand that after the closing of the Talmud we indeed have no authority to decide on our own in disputes that the Talmud left unresolved. On the other hand, those rare expressions among the Rishonim about deciding on the basis of a leaning of the mind indicate that there is room, after all, for other conceptions of ruling, such as the one we saw in Maharshal.

Even Maharshal’s own intent is not entirely clear. On the one hand, his words seem strongly inclined toward autonomy in ruling. On the other hand, he speaks of deciding such disputes on the basis of proofs. If he means proofs from other anonymous sugyot, then this is almost standard halakhic work (at least among the earliest decisors; after them there was already a tendency to rely on them and not decide for ourselves even on the basis of anonymous sugyot). But it is very likely that Maharshal means deciding on the basis of proofs against one of the opinions from a Mishnah or baraita (or authoritative statements of the earlier amoraim), and not merely proving that the anonymous Talmud elsewhere rules like one of the opinions. If that is indeed his meaning, then we have here a view that leans toward an impressive degree of autonomy in ruling.

To sharpen the point, let us imagine such a situation in our own study hall. When we find a Mishnah against one side in the Gemara, we immediately ask ourselves what that side would have answered to this difficulty, and why the other side did not cite it as proof. In such a case we feel obliged to reconcile both sides, for from the very existence of both sides it is proven that this Mishnah is not really support for the opinion we initially thought it supported. Notice that Maharshal, in such a case, would apparently rule law in accordance with that Mishnah or baraita.[6]

The relevance of such a stance for us is greater with respect to decisors, both Rishonim and Acharonim, and less with respect to disputes within the Talmuds themselves (though theoretically one may ask this question even with respect to our ability to rule in disputes within the Talmuds themselves, following Maharshal’s approach). In this article the clarification of independent decision will take place primarily on the Talmudic plane, and the contemporary implications will be discussed briefly at the end.

• ‘Follow Either Opinion’ in monetary law

The rule of judges’ discretion

One of the rules appearing in the above sugya of ‘Hazakat HaBatim’ (and in many parallels) is judges’ discretion. There are two main directions in understanding this rule: Rashi (Ketubot 94) and those who follow him hold that it is permission for the judge to do what seems right to him. Rabbenu Tam holds that it is permission to do whatever he wants, even on totally arbitrary grounds.

In Rashi’s view, one can interpret the rule of judges’ discretion as a general determination that if the judge has an inclination of mind, this is not conduct within a state of doubt but a legitimate decision that, in his eyes, the law in this case is not doubtful.[7] Such an interpretation removes judges’ discretion from the group of rules for conduct in situations of doubt, since in practice there is here authorization for the judge to decide the issue himself. Rabbenu Tam’s interpretation, too, can grant legitimacy to autonomous ruling, for if one is allowed to do whatever one wishes, it is very plausible that one is also permitted to decide the law itself. According to this, the dispute between Rashi and Rabbenu Tam concerns only the other side of the matter: according to Rashi, there is no permission, even in such cases, to rule arbitrarily.[8]

With respect to the relevance of the rule of judges’ discretion to our discussion, two comments should be made:

1. The ability to act according to this rule is limited to very particular cases, that is, to special kinds of monetary doubt. Some decisors wrote that this rule is valid only in those cases explicitly stated in the Talmud, where the law of judges’ discretion was expressly established.
2. Usually, rulings of judges’ discretion in the Talmudic sugyot concern factual doubts and not doubts about the law. Therefore this is not permission to decide in favor of a particular legal opinion, but a mode of conduct in doubtful factual reality. It should be noted—and this will be sharpened below—that in a situation of factual doubt the judge may decide according to what seems to him correct about the facts (what the parties intended, and the like), and not necessarily about the legal question (see, for example, Tosafot s.v. ‘Ve-khan amru’ in Gittin 14b, and many others).

A halakhic determination that gives the judge power to decide a legal dispute appears in the Talmud (according to some Rishonim) in the formulation ‘one who acts like one authority has acted, and one who acts like the other authority has acted,’ which is discussed by the Rishonim in the sugya of Bava Batra 62b. We therefore begin our discussion there.

The sugya of ‘a person bequeaths an oath to his sons,’ Shevuot 48

In the Gemara, Shevuot 48a, Rav and Shmuel disagree with R. Elazar over whether a person bequeaths an oath to his sons. The Gemara concludes there on 48b:

Now that no halakhah has been stated—neither like Rav and Shmuel nor like R. Elazar—a judge who acted like Rav and Shmuel has acted validly, and one who acted like R. Elazar has acted validly.

At first glance, this statement can be understood in three general directions (parallel to judges’ discretion):

1. Any judge may do as he pleases, even arbitrarily (as in Rabbenu Tam’s view of judges’ discretion).
2. The judge may do what seems true in the particular case before him (to rule in favor of whichever litigant appears right among those standing before him).
3. The judge may decide the law on his own understanding (that is, rule like one of the legal opinions).

The last two possibilities differ from one another. According to possibility 2, the judge rules in favor of whichever side seems just to him in this case (see Tosafot s.v. ‘Ve-khan amru’ in Gittin 14b, cited above, and others), but he does not decide the principled law, which remains uncertain.[9] Therefore in another case, if it seems to him that the other side is right, he could rule the other way. By contrast, according to possibility 3, the judge may decide the doubtful law itself, on his own judgment or on the basis of proofs, or perhaps even reasoning. In such a situation it stands to reason that he would have to remain consistent in that decision in other similar cases that come before him.

The rationales underlying the different explanations

There are intuitive reasons to conduct oneself in a doubt created by disagreement among authorities according to each of these understandings, and here I will indicate only the principal directions briefly. One can understand the matter by analogy to a case of two against two, that is, two sets of witnesses that contradict one another regarding a certain case (see Tosafot s.v. ‘Vehilkheta’ in Bava Batra 32b, who take it for granted that a doubt arising from disagreement among authorities should be like two against two; likewise the language of Terumat HaDeshen and the Sema above: ‘who will testify or decide which way the law follows’; see also Kuntres HaSefeikot, principle 5, at length).

In a case of two against two there is one correct reality, but the court has no way of reaching it, since there is maximally strong evidence in each direction. This creates an equilibrium that does not allow the court to move in either direction. In a doubt created by disagreement among authorities, there is a doubtful law, with significant halakhic authority supporting each side, and thus there is room to compare the two cases. The comparison is limited, however, because with respect to the law over which those authorities disagreed there may be room to treat the matter as though there is not only one truth, but each side is equally true—these and those are the words of the living God. In two against two, by contrast, it is clear that one group is lying; we simply have no legal means of discovering which one. In light of this, we can see the reasoning behind the possibilities above:

1. Arbitrary ruling is based on the fact that both sides are correct, as the principle states, these and those are the words of the living God, and therefore the court may do whatever it wants. This is a conception that assumes there is truth in each side of the dispute, and therefore one may act like either one of them.
2. Ruling according to what seems right to the judge in the particular case is based on the notion that, from the previous explanation, there is no point in trying to rule law in such a situation, and therefore we are not engaged here in halakhic ruling. Here, however, we assume that in a doubt arising from disagreement among authorities there is only one truth, and therefore it must be found. Instead of ruling law, we step outside the boundaries of law and try to reach the truth by other methods. It is clear that we are dealing here with factual truth and not legal truth (for legal truth we have no tools to reach a decision in such a case). Below we will see that in matters of prohibition and permission and in commandments there is no such possibility, because in such legal doubts the only truth under discussion is the legal one, not any factual truth.

In the case of two against two we find such an approach in Ritva and Nachmanides on Kiddushin 66a, and in Ran on the Rif, Ketubot (9a in the Rif pagination), who hold that in two against two one should not take any active step—just as in monetary law it is customary to leave the money where it is, so too in prohibitions they propose leaving the situation as it stands and not taking action.[10]

3. The possibility of deciding disputes among decisors ourselves can be explained in two ways:

• Since there is an authoritative opinion supporting each side, then instead of acting arbitrarily one may actually decide the law, for there is no possibility of error here: whichever direction one chooses, there is someone to rely on. This is similar to the approach of arbitrary ruling, except that Jewish law does not want to allow the judge arbitrary behavior, because his task is to rule law. Therefore the law requires him to decide the case. On this understanding there would seem to be no dependence on the status of the deciding judge, for even if he is not really qualified, his ruling will come out correct in any event. According to this approach, every judge who sits in judgment can, and perhaps must, rule in a dispute among authorities.
• As in every case that comes before the judge, here too the judge is supposed to decide the law. There is no difference between this doubt and any other doubt; the judge is the one who must determine the law before him. According to this possibility, it would seem that we are speaking only of a judge who is qualified to decide a dispute in the Talmud; otherwise his ruling has no meaning when sages greater than he are in dispute in that sugya. According to this approach, a judge who is not so qualified must treat such disputes according to the laws of doubt.

It is important to note that in the background of this discussion lies the division of periods in Jewish law, whereby members of later generations accepted upon themselves not to dispute their predecessors: amoraim do not dispute tannaim, Rishonim do not dispute amoraim, Acharonim do not dispute Rishonim, and so forth.[11] If we assume that deciding a dispute among members of an earlier period is effectively equivalent to disputing one of them, then such decision is clearly impossible. But one can certainly say that where there are two opinions among earlier decisors, one may decide between them, and this does not constitute violating the prohibition of disputing earlier generations.

Therefore, the approach that allows one to decide the law itself clearly assumes that deciding within a dispute is not equivalent to disputing an earlier ruling. By contrast, arbitrary decision, or a case-specific decision, is a form of resolution that does not attempt to determine the underlying legal issue. Such modes of ruling can fit the assumption that deciding a dispute among decisors of an earlier period is like disputing one of them, and therefore we should not decide the legal dispute itself. Even in that direction, however, the matter is not necessary, but this is not the place to elaborate.

The Gemara cited above is phrased in a way that seems like a principled rule in halakhic ruling. From the simple language of the Gemara it seems that wherever the law was not stated explicitly one may decide in the form of ‘one who acts like this authority has acted.’ On the other hand, the fact that the Gemara uses this language only in one sugya is itself striking. There are very many sugyot in which no explicit ruling was stated like one side or the other, and yet we find no comparable statement about them. We therefore need to examine, in light of the Rishonim, whether this is a principled rule in halakhic ruling or a specific statement relevant only to this sugya. We must also examine which of the three explanations proposed above represents the meaning of the formulation ‘one who acts like this authority has acted,’ and in particular what its relation is to the rule of judges’ discretion mentioned above.

It should be noted that in Bava Batra 124 there seems to be a similar formulation. The Gemara there discusses whether a firstborn receives a double portion in natural appreciation, and Rabbi and the Rabbis disagree. The Gemara there, at the end of 124a, rules:

Rabbah bar Hana said in the name of R. Hiyya: one who acted in accordance with Rabbi has acted validly, and one who acted in accordance with the Sages has acted validly.

However, among the commentators we do not find parallel discussions of this formulation like those we shall see with respect to the sugya in Bava Batra 62b.[12] The comments there look as though it is obvious that this is a ruling born of doubt and not a principled rule of decision. This apparently stems from the continuation of the Gemara there, which explains that the basis of this ruling is uncertainty about the meaning of the rule ‘the law follows Rabbi against a colleague’; that is, it is a doubtful ruling. The language here is also different from that in the Shevuot sugya (though not in a way that seems essential). If so, the formulation in Shevuot is indeed unique, and that sharpens the hesitation whether it reflects a principled halakhic position or a special rule for that one sugya.

Indeed, among the Rishonim we find two principled approaches to interpreting this ruling in the sugya in Shevuot. Some understood it as a statement whose force applies only in that very case, as a special enactment of the Sages. Others understood it as a general directive for situations in which no law was decided.

Tosafot, R. Yonah, and Nimukei Yosef on Bava Batra 62b maintain that this is a general principle

The Gemara in Bava Batra 62b discusses one who sells land and defines it by its boundaries or its corners, in various situations. In several cases where the Gemara remains in doubt as to the meaning of the definition used in the sale, it concludes:

It was said one way and it was said the other way; it is a matter for judges’ discretion.

Rashbam explains there:

And the Gemara decides ‘judges’ discretion’—the judges’ casting of the decision. Since the matter is doubtful to us, we apply judges’ discretion: everything depends on the circumstances as the judges see them, whether they recognize that the seller was generous or stingy; everything follows their assessment of intent.[13]

But in other places, where we are in doubt between two formulations as to whom the law follows, we do not say ‘judges’ discretion’ unless it is stated explicitly as it is here; rather, the burden of proof lies with the claimant.

That is, Rashbam holds that here there is an exceptional law of judges’ discretion; but in general, where no law was stated in disputes in the Talmud, one must act according to the laws of doubt. Rashbam also indicates that he understands judges’ discretion as a principle instructing one to act according to what seems proper in this concrete case (whether the seller sold generously), that is, he understands it like possibility 2 above in the case of ‘one who acts like this authority has acted’ (and so too is evident from Rashbam above on 35a). According to this, it is very likely that Rashbam would interpret the law of ‘one who acts like this authority has acted’ in the Shevuot sugya above as arbitrary ruling (possibility 1). It is not plausible that the Gemara allows ruling the law like one of the sides (possibility 3) only in isolated cases. If such a thing is not generally possible, then it should not be allowed at all.

By contrast, Tosafot there, s.v. ‘Itmar,’ write:

Although elsewhere in all places we say ‘the burden of proof lies with the claimant,’ and money remains with its presumed owner, whether where we are doubtful about what actually happened… or where he is in doubt about the law… nevertheless here the Sages saw fit to apply judges’ discretion.

…in all these cases it would seem to the Sages that they should divide. And where the Gemara says nothing explicit, we say that the burden of proof lies with the claimant. And where no halakhah was stated, neither like this master nor like that master, if the judge holds like one of them and acts accordingly, what he did is valid. For so it says in the chapter ‘All Who Swear’ (Shevuot 48b): ‘Now that no ruling was stated, neither like this one nor like that one, one who acted like this one has acted, and one who acted like that one has acted.’ But if the judge is in doubt as to whom the law follows, the burden of proof lies with the claimant.

Tosafot determine that wherever no law was decided, if the judge has a settled view (‘the judge holds like one of them’), he may act according to what he believes. The rule that the burden of proof lies with the claimant, which applies in a situation of doubt, is relevant only when the judge himself is in doubt, not in every case where the sugya in the Gemara ends in uncertainty. Tosafot’s proof is from the Shevuot sugya above, and it is therefore clear that Tosafot understand the statement ‘one who acts like this authority has acted’ as a sweeping halakhic directive. See also the comments of R. Yonah there, and Nimukei Yosef here in his name, who write similarly.

Tosafot do not define here the law of judges’ discretion, and therefore it seems that they understand it as they do generally. However, Nimukei Yosef (and similarly R. Yonah) write:

that the judges should decide according to what appears to them through reason and judgment—for example, if they see that the price indicates the intent, or whether the seller sold generously.

Here it is clear that we are not dealing with a principled ruling in favor of one side, for as a matter of law we hold that one does not go after the price (we do not say that the price reveals intent), and the question whether the seller sold generously is certainly a question whose answer changes according to the circumstances. That is, judges’ discretion according to R. Yonah and Nimukei Yosef appears to be ruling according to local justice (like possibility 2 above). So too write the Rosh and the Tur (see below).

By contrast, the rule ‘one who acts like this authority has acted,’ which is clearly a different kind of ruling according to Tosafot, Nimukei Yosef, and R. Yonah, points to a possibility of ruling in this sugya on the principled level like one of the sides (possibility 3), not merely because it seems to the judge that this was the intention of the parties in this case (possibility 2). From the wording of Nimukei Yosef and R. Yonah it is not wholly clear whether this is what they mean, since they write that in such a case the judge rules ‘according to where his mind inclines,’ which could also be read like judges’ discretion. However, the flow of R. Yonah’s remarks makes it clear that he understands ‘one who acts like this authority has acted’ and judges’ discretion as two distinct types of ruling, for he writes that judges’ discretion applies only where the Talmud explicitly says so, whereas the principle of ‘one who acts like this authority has acted’ is a general principle wherever the law was not stated explicitly like one side or the other.

It therefore follows from R. Yonah, Nimukei Yosef, and Tosafot that wherever the Talmud did not state a law one may decide the law oneself. In places where the Talmud explicitly states judges’ discretion, that itself is the Talmud’s ruling, and therefore one acts according to the judge’s assessment in that local question; but there is no room to decide the principled law in the doubtful sugya (as in a case where the Talmud concluded with teiku).

According to these views, judges’ discretion is one of the rules for conduct in a state of doubt, and it applies only in places where the Gemara explicitly establishes it (and presumably in each case one must find a special reason why the Sages established that rule). Where the law was not stated like one side or the other, and the Gemara also did not establish judges’ discretion, the rule is ‘one who acts like this authority has acted.’ This is a rule that allows the judge to decide the dispute on his own and to define the situation as non-doubtful. It seems clear that these Rishonic positions adopt Maharshal’s approach presented above in chapter 1.

In light of these Rishonim, there is room to understand, as we suggested above, that Terumat HaDeshen too intends his words only for a case in which the judge himself is in doubt. That is, Terumat HaDeshen may agree that if the judge has his own position on the sugya under discussion, then there is no place at all for the discussion whether to apply judges’ discretion or division or ‘whoever is stronger prevails,’ and the like; rather, he must decide on his own. All the discussion of the decisors in Hoshen Mishpat sec. 139 would then concern a situation in which the judge himself lacks a clear position. As noted, however, this is not the accepted interpretation of Terumat HaDeshen and the Rema (and see also what we cited from the Gra).

I found in Kovetz Shiurim, Bava Batra, sec. 378, that he appears to understand Terumat HaDeshen this way as a matter of course. He writes:

With regard to ‘one who acts like this authority has acted,’ and we do not say ‘the burden of proof lies with the claimant,’ I heard from my father-in-law, the gaon Rabbi Meir Atlas of blessed memory, that this refers to a judge who can decide on his own judgment between the disputants. But one who cannot decide says ‘the burden of proof lies with the claimant’… And see Terumat HaDeshen sec. 372 [apparently it should read 352] regarding what he wrote on this.

From the fact that Kovetz Shiurim brings Terumat HaDeshen at the end, it appears that he means to say that Terumat HaDeshen too speaks only of a judge who does not know how to decide between the disputants. Presumably he would interpret the Rema and the other decisors the same way.

It may, however, be that this is only a theoretical statement, for today there is no one who can decide between disputants in the Talmud, or even among the Rishonim. Yet below we will see from the Rosh in Sanhedrin that the matter is not so simple, and it may be that even today there can be a judge who is capable of deciding; this is also explicit in Maharshal’s words cited above.

 

The view of the Rosh in the Bava Batra 62b passage

The Rosh on Bava Batra there (chapter 4, sec. 2) writes that the law in the case discussed by the Gemara is judges’ discretion, that is, one acts according to the judge’s assessment. He adds that even according to Rabbenu Tam, who generally understands judges’ discretion as doing whatever one wants, here one goes by the estimated intention of seller and buyer, the price as an indicator, and the like (that is, possibility 2 above).

The Rosh adds (there, sec. 3) that wherever the law was not decided one way or the other, the rule is that the burden of proof lies with the claimant, both in factual doubt and in doubt about the law. He writes:

Where the Gemara does not explain and no halakhah was decided, the judge has no authority to extract money on the basis of doubt. And the judge should not say: since the law was not decided like whom, I will do as I wish; rather, he must leave the money in its presumptive status and not extract money on the basis of doubt.

From the plain meaning of the Rosh, it appears that he intends here to reject Tosafot’s opinion and rule like Rashbam. True, he does not mention Tosafot’s position and does not explicitly address the rule of ‘one who acts like this authority has acted,’ but his discussion here apparently suggests that in the background lies the dispute between Rashbam and Tosafot.

According to this understanding, one would have to interpret the phrase ‘one who acts like this authority has acted’ according to the first possibility (like Rabbenu Tam’s view in judges’ discretion), namely that one may go arbitrarily in either direction. It does not seem plausible that one may here rule law on the basis of proofs like one of the sides, for what would distinguish this from the rest of the Talmudic sugyot where we have no authority to do so? (We raised a similar consideration above in explaining Rashbam’s view.)

On the other hand, it is possible that the Rosh himself agrees that one may rule law in open disputes in the Talmud, and what he is rejecting here is only arbitrary ruling (‘the judge should not say, I will do whatever I wish’). According to this reading, the Rosh does not address here the possibility of ruling the law in a Talmudic dispute, and he may not oppose the approach of Tosafot, Nimukei Yosef, and R. Yonah above. Below we will continue to examine the Rosh’s approach in light of his rulings in Sanhedrin.

The view of Tosafot in Bekhorot 48a

In Tosafot s.v. ‘De-amar’ in Bekhorot 48a, they write that the Sages adopted several different modes of ruling in different places, and it is not always the case that ‘the burden of proof lies with the claimant.’ They write there:

And one may answer that there are matters where, when the law was doubtful to the Sages as here, they treated it as certainly half this way and half that way… And there are matters where the Sages said: now that no halakhah has been stated, neither like this master nor like that master, one who acted like this master has acted, and one who acted like that master has acted. And there are matters where the Sages said ‘judges’ discretion,’ as there at the beginning of ‘HaMokher et HaBayit’ (Bava Batra 62b): ‘it was said one way and it was said the other way; judges’ discretion.’

It appears clearly from Tosafot that all these are special rulings of the Sages, including the ruling of ‘one who acts like this authority has acted’ (which is distinct from judges’ discretion). In all these places, for specific reasons, the Sages established an exceptional rule. In light of Tosafot here, it is clear that wherever no other rule was stated, we are instructed to judge by the rule that the burden of proof lies with the claimant.

It also appears clearly from Tosafot here, as Tosafot, Nimukei Yosef, and R. Yonah claimed above, that judges’ discretion and ‘one who acts like this authority has acted’ are indeed two different types of ruling. Presumably Tosafot here hold that judges’ discretion is permission to act according to what seems right to the judge (possibility 2), whereas ‘one who acts like this authority has acted’ means acting as one wishes (possibility 1). In any event, it is clear that these are rules of conduct in situations of doubt. According to this, one might have thought that the judge can decide open disputes in the Talmud, but that this is not the meaning of either ‘one who acts like this authority has acted’ or judges’ discretion, both of which are specific rules for ruling in doubtful cases. However, the plain meaning of Tosafot here seems to agree with Rashbam in Bava Batra that a judge has no authority to decide open disputes in the Talmud and must instead apply the rule that the burden of proof lies with the claimant.

The Gittin 60b passage: whoever is stronger prevails

In the Gemara, Gittin 60b, Rav and Shmuel disagree regarding an irrigation channel, and the Gemara rules there:

Since no halakhah was stated, neither like this one nor like that one, whoever is stronger prevails.

Here too the wording of the Gemara makes it appear that we are dealing with a general and sweeping principle of decision. If so, we seem to have here a conflicting rule: when there is no explicit law, one may apply ‘whoever is stronger prevails.’ Yet I have not found any Rishonim who raise this as a difficulty against the Gemara in Shevuot above. See Terumat HaDeshen sec. 352 and the Rema and his commentators in Hoshen Mishpat sec. 139 above, which are based on that sugya.

It therefore appears that they understood it not as a general principle establishing that the dispute cannot be decided, but rather as a determination of what to do when the judge cannot decide between the opinions. And indeed we saw that Kovetz Shiurim writes this explicitly with respect to that sugya.

See Tiferet Yaakov there, who asks what use is a ruling of ‘whoever is stronger prevails,’ whose practical meaning is that they will continue fighting, when the whole dispute in the sugya concerned what should be enacted regarding the water channel because of the ways of peace. He therefore explains that according to strict law everyone agreed that ‘whoever is stronger prevails’ should apply there, and Rav and Shmuel disagreed only over what rabbinic enactment should be made for the sake of peace. When no enactment can be made, the law reverts to its original state, and therefore the ruling there was ‘whoever is stronger prevails.’ That explanation is quite plausible. According to it, however, nothing can be learned from that sugya about ruling in situations of doubt.[14]

Another difference between the Shevuot sugya and the Bava Batra sugya

One should notice another important difference between the sugya in Shevuot and the sugya in Bava Batra. In Bava Batra the discussion concerns the intentions of seller and buyer, and therefore one can say there that the judge should follow what he thinks were the intentions of the two parties in the sale (possibility 2). By contrast, the case in Shevuot does not depend on the parties’ intentions at all; it is a purely legal question.

This resembles cases of prohibition and permission, or commandments, as we shall see below. For example, if there is a legal doubt or a dispute among authorities about whether some food is forbidden or permitted, there is no room to decide specifically only with respect to this particular case (as in possibility 2). Here one either rules arbitrarily (possibility 1) or decides the law (possibility 3).

This is probably the reason that in the Shevuot sugya the Gemara rules ‘one who acts like this authority has acted’ (which, according to everyone, is interpreted as possibility 1 or 3) and not judges’ discretion (which according to most opinions is interpreted as possibility 2).

Exactly this distinction is made by Or Sameach, Hilkhot To’en VeNit’an 15:9. There he discusses why, in a doubt arising from disagreement among authorities, one does not follow the presumption of the original status. In the course of that discussion he explains that in ordinary monetary law this is usually not a doubt about the law but a doubt about the facts. Even if the Sages disagreed whether a certain proof is good or not, the judge is not required to decide about the proof as such but about the factual reality to which the proof relates; therefore this is not a legal doubt but a factual doubt. I was shown that Kuntres HaSefeikot (principle 5, subsec. 6, second paragraph) explicitly disputes him on this point (and see there in Or Sameach that he also cites Responsum 37 of Rabbi Akiva Eiger, who agrees with Kuntres HaSefeikot).

Interim summary

If we understand the rule of ‘one who acts like this authority has acted’ as a general directive—and this seems to be how Tosafot, Nimukei Yosef, and R. Yonah understand it—then we have here a halakhic conception that appears revolutionary: a conception that permits the judge to decide and rule in disputes that were not resolved, even disputes among the sages of the Talmud themselves (amoraim and tannaim). This is precisely the foundation for the approach of Maharshal and the other Acharonim we saw above. By contrast, Tosafot in Bekhorot and Rashbam in Bava Batra imply that in a doubt arising from disagreement among authorities one should act according to the rules of doubt (‘the burden of proof lies with the claimant’). With respect to the Rosh we saw two possible directions, and now we will try to clarify his position further.

The Rosh’s remarks in chapter 4 of Sanhedrin

The Rosh in Sanhedrin, chapter 4, sec. 6, deals with the sugya of ‘one who errs in judgment’ and ‘one who errs in an explicit Mishnah.’ In the course of the discussion he cites the opinion of Baal HaMaor and the Raavad, and disputes them. These remarks of the Rosh are a cornerstone for the discussion of halakhic ruling in disputes among authorities, and therefore I will cite substantial parts of them. The Rosh writes there:

Baal HaMaor wrote: I heard in the name of a great sage among the sages of our preceding generation that nowadays we no longer have the category of ‘one who errs in judgment,’ since all the laws are decided for us, either from the Talmud or from the Geonim after the Talmud…

But I [Baal HaMaor] do not find these words convincing. Rather, anyone whose error is not demonstrable from the Mishnah or from the explicit Talmud without doubt is not one who erred in an explicit Mishnah but one who erred in judgment… And what the Geonim decided after the close of the Talmud, by decisive reasoning and not from a clear and fixed law of the Talmud as in the common sugyot, has the status of a matter of judgment; and one who errs in it errs in judgment and not in an explicit Mishnah.

And the Raavad wrote about Baal HaMaor’s words: the sage spoke truth, for if one erred in the rulings of the Geonim because he had not heard their words, and had he heard them he would have retracted in truth and clearly, this is one who erred in an explicit Mishnah. And I am close to saying that even if he disputed a ruling of a Gaon because it seemed to him, according to his understanding, not like the Gaon’s understanding and not according to his interpretation, this too is one who erred in an explicit Mishnah. For nowadays we have no authority to dispute the words of a Gaon on the basis of our own reasoning, to interpret the matter in another way so that the law changes from the words of the Gaon, unless there is a famous and obvious difficulty—and that is something that does not occur.

And I [the Rosh] say: certainly, anyone who erred in the rulings of the Geonim of blessed memory because he had not heard their words, and when the rulings of the Geonim were told to him they found favor in his eyes, is one who erred in an explicit Mishnah. And not only one who erred in the rulings of the Geonim, but even with respect to the sages of every later generation—for they are not insignificant figures—and if he ruled not in accordance with their words, and when he heard their words they found favor in his eyes and he admitted that he erred, he is one who erred in an explicit Mishnah and must retract.

But if their words do not find favor in his eyes, and he brings proofs for his own position that are accepted by the people of his generation, Yiftah in his generation is like Samuel in his generation; you have only the judge who is in your days. And he may overturn their words. For all matters not explained in the Talmud arranged by R. Ashi and Ravina may be dismantled and rebuilt—even to dispute the words of the Geonim…

For later amoraim sometimes dispute earlier ones, and indeed we treat the words of the later ones as primary, since they knew the reasoning of the earlier ones and their own reasoning, and weighed between them and arrived at the essence of the matter…

And where two great sages disagreed in a halakhic ruling, the judge should not say, ‘I will rule like whomever I wish,’ for if he does so this is a false judgment. Rather, if he is a great sage, learned and understanding, and knows how to decide in accordance with one of them on the basis of clear and compelling proofs, he has permission to do so. And even if another sage already ruled differently in another case, the sage may overturn his words with proofs and dispute him, as I wrote above—certainly if he has support from one of the disputants. But if he is not of that caliber, he should not extract money in a case of doubt…

The view of the Gaon and the Raavad is that one may not dispute the rulings of the Geonim, and one who does so is treated as one who erred in an explicit Mishnah. The view of Baal HaMaor is close to theirs: one may not dispute the rulings of the Geonim, except that in his view the dissenter is considered one who erred in judgment, not one who erred in an explicit Mishnah.

By contrast, in this passage the Rosh himself establishes three principled points: 1. There is no difference between the Geonim and famous sages after them (even in the judge’s own generation). Only the Talmud arranged by Ravina and Rav Ashi is exceptional in that one may not dispute its rulings. 2. One who is qualified may dispute a ruling of the Geonim, as well as sages of later generations, and is not considered mistaken at all, neither as one who erred in judgment nor as one who erred in an explicit Mishnah. This is not so for one who disputes a ruling of the Talmud. 3. One who is not qualified may not rule arbitrarily (as in judges’ discretion) even in disputes among decisors; rather, he must judge according to ‘the burden of proof lies with the claimant.’ Certainly he may not dispute an accepted ruling of his predecessors who were greater than he.

It should be noted that the basic discussion here does not in fact concern the authority of a judge to rule in a dispute among earlier sages. On that point, it seems that one who is qualified may decide. The main discussion concerns disputes that have already been decided, or the rulings of the Geonim; on that the above Rishonim disagree.[15]

There is some room to discuss the meaning of these remarks of the Rosh. Does he mean that the Talmud is exceptional only in the sense that one may not dispute its rulings, whereas rulings of the Geonim may be disputed by one who is qualified? Or does he mean that the Talmud is exceptional also in that one may not decide disputes left open within it (contrary to Maharshal)?

From the simple wording of the Rosh there is no clear indication that there is authority to decide even within the Talmud, and this also seems somewhat implied by his wording in Bava Batra cited above, where this does not appear possible (like Rashbam there). On the other hand, since the discussion there concerns only ruling against earlier decisions and not deciding open disputes, the matter is not entirely clear. In any event, since the relevance of this discussion for us is mainly with respect to disputes among Rishonim and later decisors, on that point the Rosh’s view is clear: he definitely sides with autonomy in halakhic ruling.[16]

If so, the Rosh here joins, in principle, the view of Tosafot, Nimukei Yosef, and R. Yonah that every sage may decide disputes among earlier sages that were left open without a decision, and perhaps even disputes in the Talmud itself (that is, possibility 3). We still must ask, however, whether he means the first or the second variant discussed above. That is: does he mean that there is truth in every side, and therefore every decisor may act accordingly, or does he mean that this is genuine halakhic decision, and only one who is ‘qualified’ may do so? Let us now examine this.

With respect to ruling against the actual decisions of sages from earlier generations, we saw that there is a dispute among the Rishonim. But even according to the Rosh this can be done only under two conditions: 1. Only a sage who is qualified (‘learned and understands’) may do so. 2. It may be done only on the basis of ‘clear and compelling proofs,’ which suggests that a mere inclination of mind does not suffice (see Kuntres HaSefeikot, principle 5, on this).

With respect to deciding in a doubt arising from disagreement among authorities, however, there would seem to be room to distinguish. We saw that according to the first variant every judge could decide even a dispute among amoraim, and certainly among decisors; that is, he would not need to be specially qualified. The situation is unlike someone who comes to dispute the ruling of his predecessors, since here both sides are real, and whatever he does he will not be mistaken. According to the second variant, however, even in deciding disputes the judge must be qualified.

From the Rosh’s wording it appears that even to decide disputes left open, the sage must be qualified, for the Rosh concludes the cited passage with the words: and if he is not of that caliber, he should not extract money in a case of doubt, which suggests that even in deciding a doubt among decisors this is unavailable to one who is not qualified.

Anyone who notices the wording of the Rosh in the last cited paragraph will see the resemblance between it and the paragraph cited above from his rulings in Bava Batra (at the end of that discussion in Bava Batra he also explicitly refers for fuller detail to his rulings in Sanhedrin). The Rosh’s remarks here are therefore essentially a clarification of what he said in Bava Batra, and our conclusion according to the Rosh is that he understands the matter as possibility 3: a decisor of his own generation can decide an open dispute in the Talmud, but only according to the second variant, which says that he may do so only if he is qualified to do so (as will be explained below). See also the responsum of the Rosh, principle 1, cited in Takfo Kohen sec. 93 (and see there through sec. 96 for different explanations of his intent).

As stated, Baal HaMaor and the Raavad cited in the Rosh address only the question of ruling against earlier rulings and not the question of autonomous decision in open disputes. Still, it seems likely that if one cannot bring proof against the view of sages from earlier generations (the Geonim), then one also cannot decide disputes among them by force of proofs, and presumably not by the force of a mere inclination of mind either. If so, it is possible that the Raavad and Baal HaMaor would align with Rashbam and Tosafot in Bekhorot, who hold that one may not rule independently in open disputes from the Talmud or among Geonim of earlier generations (though this is certainly not necessary).

The practical ruling

As a practical matter, the Rema in Hoshen Mishpat, at the beginning of sec. 25, rules like the Rosh: one who is learned and understands may decide against sages who preceded him when he has compelling proofs; if he is not such a person, he may not rule arbitrarily but must rule according to the rules of doubt. From this there is further evidence for the interpretation we proposed above in the Rema, Hoshen Mishpat end of sec. 139, that his intent is not to forbid independent decision, but only to instruct the judge what to do when he himself has no position in the dispute. See also Tumim sec. 25, subsec. 2, and Kuntres HaSefeikot principle 5 (especially subsec. 3), and Rabbi Aviner’s booklet cited above. Our purpose here has only been to clarify the underlying principles.

A note regarding the rule of kim li

One may raise an objection to this entire discussion from the possibility, present in monetary law, of arguing kim li like one of the opinions that was not accepted as law. This subject is exceedingly obscure, and many have wearied themselves trying to find its source and root; this is not the place to elaborate. What we have said here has many implications for the rule of kim li (similar to what we saw above at the end of chapter 1 regarding seizure, a matter that also requires elaboration), and there is room for a lengthy examination of everything the Acharonim wrote on this rule (see Takfo Kohen and the various abridgments by our later masters who discussed it). Because of lack of space, I will note briefly only one aspect.

In Kuntres HaSefeikot principle 6, subsec. 6, he cites opinions that one can argue kim li according to a minority against the majority. He cites there that the Tumim (in his abridgment of Takfo Kohen, secs. 123–124) asks those opinions: how then did Maran rule in the Shulchan Arukh by majority among three decisors (the Rif, Maimonides, and the Rosh), and why was he not concerned that the possessor could claim kim li like the minority? And further, why did the decisors labor in vain to strengthen their opinions with different proofs, when the possessor can always say kim li against them?

The author of Kuntres HaSefeikot resolves the Tumim’s general difficulty as follows:

Also regarding what he asked—if so, the decisors who strengthened their views labored for nothing, since the possessor can say kim li against them—Heaven forbid that it was for nothing. For certainly this rule of kim li was said only when the judge before whom the case comes does not decide by his own reasoning in favor of one of them. But when he decides by his own reasoning, he may decide even like a lone opinion against the majority, and even extract from the possessor. As we learned at the beginning of Eduyot: Why are the words of the individual mentioned among the majority? … so that if a religious court finds the individual’s view persuasive, it may rely on him. And the Raavad explained: if the court sees that the law follows the individual, it establishes the law in accordance with him. Therefore everyone is obligated to broaden his understanding and strengthen his view with proofs, for the proofs will bear witness and justify, and if they are sound and upright they will awaken the heart of an intelligent judge, in the way of truth, to decide in accordance with him.

According to the Tumim, however, it seems that there really is no room for independent ruling in a doubt arising from disagreement among authorities; he therefore leaves those opinions as a difficulty. That is not our topic here.

C. ‘One who acts like this authority has acted’ with commandments

The difference between commandments and monetary law

As stated, in the context of prohibition and permission, or commandments, it does not seem possible to follow an inclination toward local factual truth (possibility 2 above), because nothing here depends on the intentions of the parties. The doubtful question is what the binding law is, and that same law binds in all cases. In such a case it seems that only two possibilities stand before us: 1. To allow the judge to decide a principled law (possibility 3 above). 2. To allow the judge to rule arbitrarily (possibility 1, like judges’ discretion according to Rabbenu Tam).

At first glance, the second possibility appears to be merely a rule for conduct in a situation of doubt, like judges’ discretion according to Rabbenu Tam, and therefore it does not necessarily indicate that the decisor may decide that he is not in doubt. But this is only a difference at the level of meta-halakhic interpretation, because at the halakhic level such a mode of conduct also allows deciding the law. If the judge chooses to go in the direction that seems right to him on halakhic grounds, that is certainly no worse than a judge acting arbitrarily, and so it is clearly permitted. There is, however, a practical difference between the two possibilities: if he is really deciding the law, and not merely acting arbitrarily, then he seemingly cannot change his ruling arbitrarily from case to case; he would need to preserve consistency, as explained above.

‘One who acts like this authority has acted’ with commandments

We in fact find the rule ‘one who acts like this authority has acted’ also with respect to a commandment (in Orah Hayyim matters). In the Mishnah, Berakhot 26a, R. Yehudah and the Rabbis disagree over the time of Minhah and Ma’ariv:

The afternoon prayer may be recited until evening. R. Yehudah says: until one and a quarter seasonal hours before nightfall.

And in the Gemara there, 27a, it says:

Now that no halakhah has been stated, neither like this master nor like that master, one who acted like this master has acted, and one who acted like that master has acted.

It should be noted that, as in the Gemara in Shevuot, the formulation here too appears general. At first glance there seems to be a general principle here: whenever no clear law is stated like one opinion, one may act like either side. On the other hand, it again seems strange that the Gemara does not use such language in other unresolved halakhic disputes in the Talmud, and therefore one might have understood this as a special rule applying only to this disagreement. We therefore need to examine this sugya as well: whether it presents a general principle, and what exactly the phrase ‘one who acts like this authority has acted’ means in Berakhot.

From the comments of the commentators and decisors on this sugya, it appears that most of them interpret this phrase as permission to act as one wishes, not as permission to decide the law.

On the other hand, it stands to reason that Tosafot, R. Yonah, and Nimukei Yosef in Bava Batra—who understood the language of the Gemara in Shevuot as a general principle and apparently based themselves on the wording ‘now that no halakhah has been stated, neither like this master nor like that master’—would also interpret the parallel expression in Berakhot as a general principle. By contrast, Tosafot in Bekhorot and Rashbam, who understood the statement in Shevuot as a unique ruling and not a general principle of decision, would presumably understand it the same way here.

As for the meaning of the formulation, here too one may ask whether the intent is that one may determine the law on the principled level like R. Yehudah or like the Rabbis, or rather that one may act like whichever of them one wishes, arbitrarily (the practical difference being whether one may change one’s conduct from time to time). On this point too it seems likely that the same Rishonim would continue to interpret the phrase in line with their view in the Shevuot sugya.

It is important to note that although the language in the two sugyot is identical, unlike the previous cases involving monetary law—where the instruction ‘one who acts like this authority has acted’ naturally addressed judges—the Gemara here addresses every private individual who is uncertain when to pray Minhah or Ma’ariv. Therefore there is room to understand that specifically here the intent is not that one may decide by proofs like R. Yehudah or the Rabbis, but rather permission for arbitrary conduct or ruling. This would fit the first explanation within possibility 3, namely that the decisor must decide law in every case before him. According to that understanding, we saw that it is plausible that the reference is to a decisor who is qualified. According to the second understanding—that there is truth on every side of the dispute, these and those are the words of the living God—we saw that every decisor, and perhaps even any layman, may act like whichever side seems right to him, and therefore that possibility exists here as well.

Among the commentators and decisors on the passage we find various explanations of the Gemara’s ruling here (see the details in Einayim LaMishpat on Berakhot there). Some write that each person must maintain complete consistency throughout his life: either always like R. Yehudah or always like the Rabbis. Some write that one may change from time to time, but not in self-contradictory ways (that is, not to pray both Minhah and Ma’ariv on the same day at the same time). Some say this only for rabbinic reasons, so that it should not appear ridiculous, but according to strict law even self-contradictory conduct would be possible. Others write that such conduct is permitted even in practice.

The relation to other sugyot

I later found in Kovetz Shiurim, Bava Batra, sec. 379, that he cites from Eruvin 7a a general rule that wherever one finds two tannaim or two amoraim, and the law was not decided like one or the other, one who acts like this authority has acted, and one who acts like that authority has acted. He writes that this is also seen in Berakhot 27 and Shevuot 48. Yet from his wording there, and as is clear from the Eruvin sugya itself, it is evident that he did not understand this as permission to decide law, but as permission to act arbitrarily in either of the halakhic paths.

Likewise, in Kovetz Shiurim, Bava Batra, sec. 271, he cites from Tosafot (Bava Batra 62b) and from the Rosh (Sanhedrin cited above, and see also Kovetz Shiurim, Bava Batra, end of sec. 378) that the rule ‘one who acts like this authority has acted’ applies only to someone who knows how to decide. He then objects from the Gemara in Berakhot, from which all decisors clearly understand that this rule applies to everyone, not only to one who knows how to decide.

His intention seems clearly to be to challenge the interpretation that ‘one who acts like this authority has acted’ is a rule allowing one to decide halakhic disputes, as we wished to explain above. Rather, it is a rule allowing anyone to conduct himself arbitrarily according to any of the halakhic paths represented in the dispute.

Above, however, we proved that for some Rishonim this is not the intent of the Gemara in Shevuot, and they may interpret Berakhot similarly. We noted, however, that it is possible that in Berakhot, according to all opinions, the meaning is as understood by Kovetz Shiurim, since there the sugya does not address judges (because it is not a matter of monetary law) but every individual Jew. In such a case it seems likely that halakhic decision proper cannot be permitted, and therefore the intent may be to permit all forms of conduct arbitrarily (parallel to the rule of judges’ discretion in monetary matters).

Indeed, the Eruvin sugya seems at first glance relevant to our issue and perhaps even contrary to what we have said thus far. See, for example, Encyclopedia Talmudit, entry ‘Halakhah,’ subsec. 12, where they discuss at length how one should act when no law was decided, and the basis of the discussion is the Eruvin sugya above (leniencies of both positions and stringencies of both positions, and the like), as well as Rabbi Aviner’s articles cited above. At first glance, this seems to contradict everything we have said, for it appears that when no law is decided we can at most act arbitrarily like one side, while both sides are viewed as legitimate; one might therefore conclude that in such a case we have no authority to decide the sugya itself.

In light of all that we have seen (and will still see), however, the explanation must be that the Eruvin sugya speaks of a situation in which the judge (or the halakhic instructor) has no decision of his own (or is not qualified), and the question is then how he should conduct himself. We, by contrast, are discussing a more basic layer: whether a judge must ever find himself in such a situation at all. According to our argument here, if a decisor has a view of his own in the sugya under discussion, then he has no need whatsoever for the rules of the Eruvin sugya, which instruct how to act in a case of disagreement among authorities. In light of what has been said here, the Eruvin sugya is not relevant to our issue at all.

The practical ruling

For the practical law regarding autonomous decision in halakhic disputes concerning commandments and prohibitions, see the Rema, Yoreh De’ah sec. 242:3, and Pithei Teshuvah there, subsec. 2 (and see also the Rema in Darkhei Moshe there). It appears that any decisor may rule according to what seems right to him, subject to the limitation of respect for the various sages and the limitation that he may not permit in the same concrete case what his colleague has forbidden.

D. The importance of autonomous decision: who counts as ‘qualified’

The meaning of the criterion ‘qualified’

Up to this point we have seen that according to many of our Rishonim and Acharonim, a judge who is qualified can decide disputes among his predecessors, and perhaps even disputes left open in the Talmud. Two opposite objections may be raised against this:

1. We already noted that this seems at first glance to be only theoretical, since it is commonly accepted that today there is no one who can truly insert his head among tannaim, amoraim, Rishonim, or even the greatest Acharonim, whose least finger is thicker than our loins (see Takfo Kohen by the Shakh, sec. 79, citing Maharshabbab to the effect that for this reason we cannot decide the disputes of our predecessors).
2. One may also argue the opposite: that saying that someone qualified may, even in our generations, decide a dispute among authorities is trivial, and everyone must agree to it. The only problem is that we are not such people. According to this, there is no room for the present discussion at all.

The second argument is by no means necessary, because it is quite commonly assumed that our inability to decide disputes of our predecessors (at least up through the Rishonim) does not derive only from the fact that we are not qualified—perhaps that too—but also from the fact that we accepted upon ourselves not to dispute earlier generations. That is, just as amoraim do not dispute tannaim and Rishonim do not dispute amoraim, so too we cannot decide disputes that were left open among them.[17]

In light of our earlier discussion, it emerges that this conception is not necessarily correct. We may indeed have accepted upon ourselves not to dispute earlier decisors (at least from the Rishonim onward), but it is certainly possible to decide disputes left open among them. The condition is that the decisor who does so be qualified. That is precisely the novelty here.

Who is ‘qualified’: clarifying the Rosh’s view

To clarify the first claim above, let us return to the Rosh’s words cited in chapter 2 and try to determine from them who this ‘qualified’ person is, one who can decide disputes among decisors and perhaps even open disputes in the Talmud. We will see here that even today someone may exist who is ‘qualified’ to decide disputes among earlier decisors.

Within the Rosh’s remarks there is one expression that calls out for interpretation. The Rosh determines that Yiftah in his generation is like Samuel in his generation, and that you have only the judge who is in your days. That is, the Rosh assumes that the sages of his time are indeed smaller than the sages of earlier generations, and certainly smaller than the sages of the Talmud. Yet he says that ‘Yiftah in his generation is like Samuel in his generation,’ meaning that they are permitted to decide and we are permitted to rely on them.

At first glance it follows from his words that every decisor should do the best he can, for a judge has only what his eyes see. It is not clear how this fits with the requirement that he be ‘qualified,’ since, as the Rosh himself hints, no one in his generation is really qualified to decide disputes among the sages of the Talmud.

It is very plausible that the Rosh means a judge, or decisor, who has the ability to engage in Torah reasoning in the proper manner, even if it is clear that he is not on the level of his predecessors. That is, the requirement that he be ‘qualified’ does not mean that he must be on the level of the sages of the Talmud, but that he must be learned and understanding in the terms of the generation in which he lives. We saw that the Rosh adopts possibility 3b: the decision of the judge or decisor is a real decision of the doubtful law, and therefore he must be ‘qualified.’ Only a decision by a judge who is, as it were, ‘Yiftah in his generation’ can count as halakhic ruling.

The view of the Geonim

It seems that this is also the intent of the responsum of the Geonim (Prague edition, sec. 23) cited by the Shakh in Takfo Kohen, sec. 82. There it says:

You asked: where there are two responsa of two Geonim who disagree with each other, and each of the litigants or judges takes hold of one of them, how do we act?

Answer: the judge who is considered great for his time should decide in favor of whichever one seems correct to him. And once he has decided in his heart, if one litigant relies on the words of the other Gaon, no attention is paid to him…

From the words of the Geonim, as from the Rosh, it emerges that a judge who is ‘qualified’ in his own time may decide disputes among his predecessors. One should notice that this is not merely a statement made out of lack of alternatives, as might seem at first glance. Every judge always has before him the option of ruling that the burden of proof lies with the claimant, or in accordance with the other laws of doubt.[18] It therefore seems quite clear that there is here a principled statement, just as we saw above in the view of the Rosh. We now turn to the principled meaning of these remarks.

The reason for the matter

At first glance it is difficult to understand why one should rule law at all through someone who is smaller than the sages of earlier generations, even if he is ‘Yiftah in his generation.’ After all, if the sages of earlier generations were greater, then presumably they are the ones who are correct. Why, then, should a judge follow his own opinion rather than deciding like them?

One might have said that halakhic truth has no value, and that these and those are the words of the living God should be taken literally. But this cannot be, for the Rosh does not allow everyone to act this way, only one who is learned and understanding in his generation. Clearly, then, the Rosh recognizes the possibility of halakhic error and is trying to prevent it. Yet even that learned and understanding sage of his generation is smaller than the sages of earlier generations (and certainly than the sages of the Talmud), so why allow him to rule against the great sages of earlier generations and take the risk of halakhic error?

From the words of the Rosh and of those Geonim it emerges that the goal of halakhic ruling is not only to reach the correct outcome, but that the very process of independent ruling has important Torah value. One who truly belongs in the world of halakhic ruling, and whose deciding the disputes of earlier sages is not a farce, is obligated to rule the law according to his own judgment and to decide disputes among his predecessors. There is important value in autonomous ruling, and that value overrides the value of behaving correctly from the purely halakhic standpoint. Therefore, on the one hand, one may not rule according to whatever seems right to every judge; only an important judge in his generation may do so. On the other hand, an important judge can, and in fact should—and this is probably the main novelty—rule autonomously.

Examples of the distinction between law and halakhic truth

There are examples of halakhic rulings that are shaped by considerations other than halakhic truth alone.[19] I will cite here only one among several.[20] In Derashot HaRan, sermon 11 (a similar argument appears there also in sermon 7), the Ran asks why a rebellious elder—a Torah scholar qualified to issue rulings—who knows that the Sanhedrin is mistaken in the law is nonetheless obligated to obey it. After all, he knows that by obeying he is desecrating the Sabbath, and that this will damage his soul; why should he not act and rule as he understands?

The author of Derashot HaRan explains that the value of the unity of the law and obedience to the sages of the Sanhedrin (the standing of the sages) outweighs the value of observing the true law. See also Sefer HaHinukh, commandments 78, 495, and 496, in the roots of the commandment, where a similar argument is made.

According to this, we may say that the value of autonomous halakhic ruling is likewise important, and therefore one may pay a ‘halakhic price’ for it—that is, accept the possibility of halakhic error in order not to forfeit the possibility of ruling autonomously.

The value of autonomous ruling: the approaches of Maharal and R. Yosef Ibn Migash

The value of autonomous halakhic ruling arose at various periods in the history of Jewish law, especially around what is called the codification controversies.[21] An especially sharp autonomous stance is presented by Maharal at the end of chapter 15 of Netiv HaTorah. He writes:

For it is more fitting and more proper that one rule out of 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 instruction accords with the truth, nevertheless a sage has only what his intellect yields and understands from the Talmud. And when his understanding and wisdom mislead him, even so he is beloved before God when he rules in accordance with what his intellect requires, for a judge has only what his eyes see. And this is better than one who rules from a single code and does not know the reason of the matter at all, and goes like a blind man on the road.

And perhaps one may say: if so, in this generation, when they are not expert in the Talmud and do not know it, how shall we rule law? Surely this matter is indeed difficult, for Torah has been forgotten and we are not worthy to rule law. And all this is because no one reviews his Talmud to become expert and fluent in his study…

It emerges from Maharal that autonomous ruling has supreme value, even at the cost of error in the ruling. In the eyes of the Holy One, blessed be He, one who rules out of his own understanding and not on the basis of an earlier book is preferable—even if he errs—to one who rules from a book, that is, by precedent, even if he is correct.[22]

By contrast, in Responsa of R. Yosef Ibn Migash, sec. 114, he was asked whether it is proper to allow issuing halakhic rulings from the books of the Geonim even to someone who does not know the Talmudic source of the law and the proper halakhic mode of analysis. At first glance a completely opposite approach appears there. He writes:

Know that this man is more worthy to be permitted to issue rulings than many people who have set themselves up as halakhic instructors in our time, and most of them do not possess even one of these two things—namely, understanding of the halakhah and grasp of the view of the Geonim of blessed memory. Those who imagine that they can issue rulings from analysis of the halakhah and from the strength of their study of the Talmud are the ones from whom this should be withheld, because in our time there is no one fit for that and no one who has reached such a level in Talmudic wisdom that he can rule from his own study without standing upon the view of the Geonim of blessed memory.

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 he rules on the basis of reasoning that is not genuinely sound, still in relying on the proofs of the Geonim of blessed memory he does not err בכך, since whatever he does he does on the basis of a great court expert for the many. But one who rules from his own analysis of the halakhah may think that that halakhah requires such a ruling when it does not require it. His analysis misled him, or he erred in its interpretation, and in our time no one has reached the level in Talmud at which one can rely on it for ruling.

At first glance, R. Yosef Ibn Migash seems to assert the exact opposite of Maharal: one who rules from a book, even without full understanding, is preferable, because he will presumably hit the halakhic truth, whereas one who rules from his own analysis may err.

One might perhaps see here a dispute as to whether halakhic ruling is an attempt to hit the truth, or whether autonomous ruling is itself the value at stake in halakhic ruling. Perhaps one could even see here a dispute over whether there is such a thing as halakhic truth.

However, if we look carefully at both passages, it seems that on the principled level both intended the same thing. Maharal does not deny halakhic truth, since he explicitly speaks of someone who errs in the law (only he holds that such a person is preferable to a decisor who is correct only because he rules from a book). Maharal’s meaning is that autonomous ruling has value, and therefore sometimes it is preferable to rule autonomously even at the price of halakhic error—exactly as we saw above in the Rosh.

On the other hand, Maharal too does not conclude that everyone may act this way, for he ends the chapter by saying that in his generation many cannot do so because they have not reached the ability to issue rulings. That is, he too limits the recommendation of autonomy in ruling only to one who is ‘qualified’ (learned and understanding in his generation, as in the Rosh).

If we now examine the words of R. Yosef Ibn Migash, we find the same elements. He speaks about the danger of halakhic error, and therefore is unwilling to allow every decisor to rule independently. Yet it emerges fairly clearly from his words that if someone really is ‘qualified,’ he certainly should rule according to his own reason; it is just that, in his assessment, very few in his generation were so qualified.

It turns out that Maharal and R. Yosef Ibn Migash said the same thing, and perhaps the only difference between them is in their assessment of reality: whether in their generation there were people who were ‘qualified’ or not.

If so, it is quite clear that according to everyone there is halakhic truth, and therefore there can also be halakhic errors, and it is clear that one should try to avoid them. On the other hand, there is also value in independent ruling, perhaps even at the cost of error (though in R. Yosef Ibn Migash this is not explicit). Therefore one who is not qualified may not rule independently, but one who is qualified—even if he is smaller than the sages of earlier generations—is certainly called upon to rule independently. These are precisely the views of the Rosh, the Geonim, Tosafot, R. Yonah, and Nimukei Yosef above. And these are likewise the views of Maharshal, the Shakh, Ya’avetz, the Gra, and Kuntres HaSefeikot, as we saw at the beginning.

E. A further explanation of the value of autonomous ruling

The value of independent ruling may perhaps be explained on the basis of Kiddushin 40b. The Gemara there relates that a question was asked before R. Tarfon and the elders who were reclining in the upper chamber of the house of Nitzah: which is greater, study or action? The conclusion there is study is greater, because it leads to action.

This is difficult, for ordinarily the smaller thing is made dependent on the greater. If the value of study is that it leads to action, then the obvious conclusion would seem to be that action is the goal and study is the means. If so, it is not clear how the Gemara states, in that very sentence, that study is greater.

Perhaps one can say that the Gemara did not determine that study is greater, but rather that study which leads to action is what is greater. In other words, the inquiry was mistaken from the outset: not that study is greater and not that action is greater, but in truth these are two inseparable things. The goal is to live in a single chain whose first link leads to the second: study that leads to action. Such study and such ruling constitute a wholly different kind of ‘study’ and a wholly different kind of ‘action.’

In the way things are commonly done today, when we study analytical Talmud we say whatever conceptual distinctions occur to us, but in practice we rule according to the standard law books (Shulchan Arukh, Kitzur Shulchan Arukh, Arukh HaShulchan, Mishnah Berurah, and others). In such a mode of study and ruling, action is completely detached from study, because study is one thing and action another. The practical conclusion is unrelated to the learning, and certainly does not emerge from it. This is the source of the common mistake today that analytical learning is not considered learning ‘for practical law,’ and that only memorizing law books counts as learning ‘for halakhah.’

In my humble opinion there is no greater mistake than this. Analytical learning is precisely learning for halakhah. The reasoning articulated in analysis is what should guide us in our practical conduct. Only thus is the goal of study truly action: study that leads to action. R. Chaim’s distinction of ‘two laws,’ or that of any other thinker, is a legal distinction. The purpose of R. Chaim’s conceptual distinctions was to explain Maimonides, which is a book of halakhic rulings. R. Chaim himself (and his son, the Griz, after him) ruled this way in practice as well.[23]

If so, the service of God through learning and ruling, as Maharal expresses it, and as we saw also in Maharshal, Tosafot, R. Yonah, and the Rosh, is the expression and realization of the abstract ideas and conceptual reasoning of study in the practical world. This happens only when the conclusions of our study in analytical learning are themselves the halakhic conclusions by which we will act in practice. In such a situation a person learns, and every conceptual distinction he raises receives expression and practical consequence in the world of action.[24] This is the essence of the indwelling of the Divine Presence below, which is itself the purpose of creation.

In certain respects this is nothing other than a demand for rational conduct, that is, a call to a person (provided he is ‘qualified,’ in the earlier sense) to behave in the practical world according to what emerges from his intellectual reflection.

Beyond the well-known call of Rabbi Israel Salanter, who said that the first commandment binding every Jew is ‘not to be foolish,’ we widen the frame and suggest that the most basic goal is to strive to be rational—that is, to strive to become someone who is ‘qualified,’ and therefore someone who can act according to the guidance of his intellect.

F. On the custom of following a particular decisor

In Kovetz Shiurim, Bava Batra, sec. 272, he cites from the responsa of R. Judah son of the Rosh, sec. 54, that in the community of Toledo they agreed to rule like Maimonides except where the Rosh disagreed with him. R. Judah writes there that this practice contradicts the words of the Rosh cited above. According to the Rosh, we saw that one who does not know how to decide a given law should not say, ‘I will act according to so-and-so’; if he does so, this is a false judgment. In such a case, in monetary law he should rule that the burden of proof lies with the claimant, and in prohibitions according to the laws of doubt.

According to this approach, the result is that the judge must decide the law himself and cannot simply rely on rules of decision or follow one decisor rather than another. In every situation in which he cannot decide, he must act according to the laws of doubt. This is an extreme autonomous approach to halakhic ruling.

At first glance this is indeed a necessary conclusion from those words of the Rosh. According to this, Sephardim should not follow the Mehaber, Ashkenazim should not follow the Rema, and in general there would be no room to accept any decisor upon ourselves (Mishnah Berurah, and the like). We would always have to decide the halakhic disputes themselves, or else act according to the laws of doubt. This seems a fairly extreme conclusion, even though it appears to follow quite clearly from the Rosh’s words.

Kovetz Shiurim there objects to R. Judah from the Gemara in Eruvin 46, which presents rules of decision of this sort: when R. Meir and R. Yehudah disagree, the law follows R. Yehudah; when R. Yehudah and R. Yosei disagree, the law follows R. Yosei; and many others of the same kind.[25]

He therefore explains that if a person, or a community, decides that a certain decisor is a greater authority, then this is certainly legitimate even according to the Rosh. Only when we have no way even to determine who is the greater authority (and also no way to decide the halakhic dispute itself) do we fall back on the laws of doubt. This is also how he explains the intention of R. Judah in the responsum above (namely, that he knew the members of the Toledo community were not capable of deciding even who was the greater authority). However, this does not seem to be the plain meaning of R. Judah’s words, and the matter requires further analysis.[26]

Afterward, Kovetz Shiurim writes (there, sec. 273) that in many communities we find precisely such practice, and we have not heard anyone object to it. He explains that every community can appoint over itself a court, somewhat parallel to the great court for all Israel, and in such a case that court certainly has authority to decide laws for that community. The Rosh’s remark that a judge should not say ‘I will act like so-and-so’ applies only to a judge who wants to do so incidentally, not on the basis of a fixed communal practice. See there.

If so, the view of R. Judah is that the judge must rule law himself or act according to the laws of doubt. There is no room for an individual or a community to rely arbitrarily on a specific decisor. As we saw, most decisors disagree with R. Judah, and even from the Rosh’s own words this is not a necessary conclusion.[27]

 

G. Several concluding notes

1. As emerges from our discussion, the attitude toward autonomy in ruling changed over the generations. In the period of the Rishonim we saw opinions in both directions, whereas in our time an approach of full autonomy seems not to exist at all. Around the time of the composition of the Shulchan Arukh and the Mapah we find several voices—apparently appearing as a reaction to the Shulchan Arukh itself (the codification controversy)—calling for the preservation of autonomous ruling, especially Maharshal and Maharal. After that, these voices almost disappear, and the precedent-based approach to ruling takes over.

It is clear that the degree of reliance on precedents as opposed to independent ruling varies, and this is not a simple yes-or-no question. Therefore in every generation, and in our own as well, one can find different degrees of autonomy versus reliance on precedents among different decisors.

2. There is a widespread feeling that in the mode of ruling practiced today—that is, non-autonomous ruling—we are ‘following in the footsteps of the flock,’ or ‘playing it safe.’ The feeling is that this carries no price, and therefore there seems no reason not to act this way, since it is the most reasonable way to reach halakhic truth and avoid error. Yet, as we have seen here, such a mode of ruling also has a price. Autonomy in ruling is not merely a permission or option; it is a positive and binding value (for one who is qualified), something toward which one should strive. As we saw, halakhic truth is not the only and exclusive goal of halakhic ruling. Autonomy too has intrinsic value.

3. It is fairly clear that with respect to halakhic ruling in our generation, the relevance of the discussion is not to open disputes in the Talmud, but mainly to disputes among decisors, among Acharonim, and perhaps also among Rishonim. On the other hand, one can see here a principled approach that grants legitimacy to autonomy in ruling, and even requires it. Certainly there emerges from here a call to increase—carefully—the use of this path of ruling.

4. As we saw, autonomous ruling is relevant only to a decisor who is ‘qualified,’ that is, learned and understanding in the terms of his generation. Still, as a model set before every learner, what has been said here contains a principled novelty. In light of these considerations, it seems that every learner should aspire to reach a state in which he is ‘qualified,’ that is, someone who rules autonomously from the sources, and not merely someone who knows all the halakhic codes thoroughly. At least according to Maharal, autonomous ruling is itself the goal of the service of God—this is the meaning of study that leads to action—provided the decisor is qualified. As noted, this remains true even at the cost of a possibility of error in ruling.

5. A methodological note. In the very question of whether autonomous ruling is possible in a doubt arising from disagreement among authorities, there is itself a dispute among the decisors, and therefore it too is itself a case of disagreement among authorities. There is therefore an inherent problem in how to decide this very issue—whether one should rule autonomously or not.

At first glance one might argue that most decisors, certainly those accepted in practice, decide that one may not rule autonomously in a doubt arising from disagreement among authorities. But that argument cannot be decisive, and the reason is purely logical: this is itself the very issue under discussion. Deciding this issue on the basis of decisors is itself reliance on precedents rather than autonomous decision. One who advocates autonomous decision is not persuaded by such an argument, because that very argument is one he does not accept (even in this issue itself he favors autonomous ruling). In the question of what to do in a doubt arising from disagreement among authorities, one cannot decide according to the rules of such doubt, because those very rules are the focus of the dispute here.

It seems that for this reason one can find decisors such as the Sha’agat Aryeh and Maharshal who decided disputes among Rishonim on the basis of their own reasoning and proofs, without concern for the view of their colleagues who held that one should not do so, even though those others were certainly the majority. In each chapter above we cited the views of the Shulchan Arukh and the Rema in the relevant issues, but it is not entirely clear whether the weight to be given to their opinion in this specific issue is decisive, for the reasons explained.[28]

6. As noted above, the presentation here is theoretical only, since today it seems that there is no room for truly autonomous ruling. The reason is that even if one does not accept the formal authority of the decisors to decide this issue (for the logical reasons explained), it is clear that the custom of the decisors has decisive weight, at least like any other custom in Israel. It is obvious that one cannot ignore the widespread practices in the halakhic world, which relies on precedents in a very clear way, especially on our masters the Rema and the Mehaber.

Above we saw that even the Rosh and Maharshal, who are two of the main sources we cited for autonomy in ruling, accept the prohibition against ruling contrary to an explicit ruling of the Talmud (and even against deciding a case of teiku). If so, it would seem that the practice of not deciding disputes in the Talmud—and usually also disputes among our Rishonic masters and even later decisors—should be no less binding than that earlier practice.

For these reasons, it should be understood that my purpose here is only to identify the principled value of autonomy in ruling, to call for some increase in its measure, and to propose a somewhat different model for the ideal that should be set before students and yeshivah learners.

7. Despite all these reservations, what has been said here has many implications, both for practical ruling and for the manner and shape of learning, though this is not the place to elaborate.

H. Summary

We have seen the view of many Rishonim (Tosafot, the Rosh, R. Yonah, Nimukei Yosef, the Geonim, and others) and Acharonim (Maharshal, Maharal, Shakh, Ya’avetz, Kuntres HaSefeikot, Kovetz Shiurim) who hold that a decisor has principled power to decide disputes among his predecessors, and perhaps even disputes in the Talmud itself. According to Kovetz Shiurim, this is apparently also the view of the Rishonim who disagree (such as Terumat HaDeshen, whom he cites, and apparently also Rashbam in Bava Batra 62 and Tosafot in Bekhorot); their remarks concern only a case in which the judge is not qualified. R. Judah son of the Rosh held that there is generally no other possible mode of ruling, though we saw that this is a lone view. It follows that the ability to decide disputes among authorities does not necessarily entail the ability to dispute them. Our conclusion is that even if we do not have the ability to dispute earlier decisors, we still possess the ability to decide disputes among them.

On the other hand, one might have thought that the possibility of autonomy in ruling is only a theoretical determination, for while one who is qualified may perhaps decide disputes among authorities, as explained, it seems at first glance that no one is qualified. It should be noted that this does indeed appear from the language of a considerable number of decisors (for example in the view of the Rishonim who disagree, and among Acharonim such as the Tumim whom we cited, and many others).

However, as we saw, from the Rosh and from the responsum of the Geonim it emerges that ‘qualified’ does not necessarily mean a decisor who stands on the level of his predecessors, but rather, in the language of the Geonim, ‘great according to the time.’ It follows that autonomous ruling, at least to some degree, is a relevant aspiration even for people of our generation.

We also saw, especially in Maharal, that autonomy in halakhic ruling is a duty and not only a right. We explained that, at root, this is the way in which study leads to action.

The main conclusion is that greater autonomy in ruling should be set before learners (in the relevant measures), and at its basis the aspiration to become ‘qualified’ (at least ‘according to the time’) should be presented as a central aim of learning.

[1] For a detailed discussion of these rules of decision, see, for example, the booklet ‘Rules of Instruction in Doubtful Laws,’ Rabbi Elisha Aviner, Ma’aliyot Press (attached to Yeshivat Birkat Moshe, Ma’ale Adumim), Jerusalem 5759.

[2] It appears in the booklet mentioned in the previous note.

[3] As is well known, these remarks of Maharshal are directed against the precedent-based approach in the rulings of the Rema and the Beit Yosef, and they are part of the controversy sometimes called the ‘codification controversy’ (on this see Menahem Elon, HaMishpat HaIvri, third edition, Magnes, Jerusalem 5752, vol. 2, especially chapters 32–37).

Maharshal’s path in this matter is very interesting. On the one hand, in his introductions to Yam Shel Shlomo he speaks very sharply against ruling on the basis of precedents, and indeed he shows deference to no one. He decides on the basis of proofs from the Talmud, and throughout the book he sometimes speaks sharply even against the greatest Rishonim. On the other hand, in his rulings in the responsa of Maharshal he appears more moderate, and there he often discusses precedents, that is, the words of the decisors who preceded him, and even determines the law in accordance with their views. It should be noted that Yam Shel Shlomo is very clearly a book with a halakhic agenda and not merely an interpretive one, and therefore it is somewhat difficult to attribute this difference to a distinction between halakhic contexts and interpretive contexts. Perhaps, however, because the responsa were written as practical instruction for concrete cases, the approach there is different. The matter requires further investigation.

For a similar halakhic approach, and in some respects even more radical, see the article by Prof. Meir Benayahu, ‘Revolutionary Views on the Rules of Jewish Law in the Glosses of Rabbi Samuel of Sha’ar Aryeh on Beit Yosef,’ in the annual of Jewish studies ‘Yad HaRav Nissim,’ third volume, Jerusalem 5749. There too it appears that the remarks come against the background of the controversy with the Beit Yosef.

Other well-known remarks in this spirit, and against a similar background, appear in Netiv HaTorah of Maharal, chapter 15 (we will discuss them below toward the end of our remarks). His brother, R. Haim, also expresses a similar attitude in his book Viku’ah Mayim Hayyim, directed mainly against the book Torat Hattat of the Rema.

[4] Later in the same passage Maharshal discusses cases where the Talmud closes with the term ‘this is difficult,’ but that is beyond our present scope.

[5] See below what we cite from Kovetz Shiurim, Bava Batra, sec. 378, from which it appears that he did not interpret Terumat HaDeshen this way.

[6] In truth, according to the views that disagree with Maharshal and hold that one should not decide law even in disputes left open in the Talmud, one must ask why some sugyot end in teiku while other disputes are simply left open. If indeed even in open disputes no decision is possible after the close of the Talmud, then their status is exactly like that of disputes that ended in teiku.

It seems somewhat forced to say that this is merely a record of how the discussion ended in the amoraic study hall, without any relevance or message for later decisors.

[7] Such an interpretation of judges’ discretion is possible even according to Rabbenu Tam, for one could say that we are dealing with a situation where there is no halakhic truth at all, and therefore each person does whatever he wants, with every mode of conduct counting as true conduct—something akin to ordinary legal decision.

[8] I later found this explicitly in Takfo Kohen sec. 95, where he raises precisely this argument. He writes:

But where there is a dispute among amoraim or among great authorities, I might have said that the judge may indeed decide like one of them even without proof and without reasoning, for we might say that this is like judges’ discretion; for if the judge acted like one of them the judgment stands, as explained above in sec. 87. I might therefore have thought that ab initio the judge may rule like whichever of them he wishes, saying ‘I hold like this opinion.’ Therefore the Rosh teaches us that the judge may not extract money in a case of doubt, and brings proof from the chapter Hazakah…

It should be noted that the Rosh, who writes that one should not do this (we will cite those remarks of the Rosh below), means that one should not rule arbitrarily like one of the opinions. But the reasoning we gave above—that the judge may decide the law on his own understanding, because this is no worse than arbitrary ruling, as in judges’ discretion—remains valid even in the conclusion.

[9] On this point see also the remarks of Or Sameach, Hilkhot To’en VeNit’an 15, cited below as well.

[10] One might ask why, in two against two, the court withdraws, whereas in a doubt arising from disagreement among authorities the court adopts a different path. At first glance here too we ought to require the court to withdraw. It seems that a doubt arising from disagreement among authorities is not an incidental event but a certain legal category, and therefore there is no room for a sweeping determination that the court must always withdraw in such a case. Two against two regarding a particular incident is a one-time event, and in such a case one can rule that the court should withdraw. In any case, at the principled level both approaches are forms of withdrawing from halakhic ruling, as explained.

[11] I do not enter here into the foundation of the prohibition against disputing earlier authorities, and in fact it is not clear that the basis of this law is self-acceptance, as I wrote above. On this point see the Kesef Mishneh at the beginning of chapter 2 of Hilkhot Mamrim (who indeed tied it to self-acceptance), and compare Kovetz Shiurim, vol. 2 (‘Kuntres Divrei Soferim,’ sec. 2). The remarks of Maimonides in his introduction to the Mishneh Torah also require extensive analysis, but that is beyond our present subject.

[12] See, however, what Kovetz Shiurim cites in that sugya from his father-in-law, R. Meir Atlas; we will quote his remarks below.

[13] We already noted that with respect to judges’ discretion the Rishonim disagreed whether this means ruling according to the judges’ assessment or doing whatever they please. Here, however, several commentators wrote (see, for example, R. Yonah, edition of the Machon HaTalmud HaYisraeli HaShalem, and note 79 of R. Moshe Hershler there) that everyone agrees that one acts according to what seems to the judge to be the law (or the parties’ intent), and not arbitrarily. See the Rosh cited below, Einayim LaMishpat there, and above on 35a.

[14] See there in the Rishonim (Nimukei Yosef, Ran, R. Crescas) who explain why the Gemara chose ‘whoever is stronger prevails’ and not judges’ discretion.

It should further be noted that according to the Rosh in chapter 3 of Bava Batra, the rule of ‘whoever is stronger prevails’ has an aspect of clarification, for the one to whom the money truly belongs will strive more than his fellow to obtain it. This reasoning is certainly inapplicable to a doubt about the law, since there neither side knows whether it is correct. This is further evidence that the ruling of ‘whoever is stronger prevails’ there is not because of the legal doubt, but because the law reverted to its original baseline, as Tiferet Yaakov wrote.

[15] See Noda B’Yehuda, first edition, Orah Hayyim sec. 38, at the beginning of the responsum, where he rebukes R. Wolf Alisker (see the description there at the beginning of the responsum and in the second edition, Yoreh De’ah near the end of sec. 96). These two responsa of Noda B’Yehuda show his clearly negative attitude toward one who disputes the Rishonim, yet he remarks as a matter of course (see the end of the first-edition responsum) that it is possible to decide among their disputes, and that this is not the same as disputing them.

See there at the end of the discussion, where he alludes to the passage of Baal HaMaor and the Raavad in the Rosh above (‘that one may not dispute a Gaon except with a clear proof from the Talmud, and this is not possible’).

[16] The difference between the status of disputes in the Talmud and the disputes after it can have two principled explanations: 1. The formal act of closing the Talmud includes also the exclusion of the possibility of deciding the law in the open disputes within it. 2. The close of the Talmud has no formal significance, and it is merely a collection of opinions by earlier sages. The inability to decide stems from the fact that the sages of the Talmud were far greater than we are (even in the Rosh’s generation), and therefore deciding among them is not like deciding among the Geonim. On this understanding, with respect to the sages of the Talmud, none of us are ‘qualified’—though this is not self-evident; see below for a brief clarification of the concept of ‘qualified’ in the Rosh.

The distinction between these two possibilities has great significance for our situation. According to the first, there is no implication for us, since the period of the Rishonim certainly was not formally closed, as Maharshal notes. According to the second, however, even without a formal closing there are differences of level that do not allow decision. According to this, it is possible that the difference between us and the Rishonim is like the difference between the Rosh’s generation and the Talmud, and therefore we are not ‘qualified’ to dispute Rishonim.

Of course, this whole discussion depends on our indeed understanding the Rosh as denying the possibility of deciding disputes within the Talmud. Even then, however, there seems no way to determine with certainty which of the two possibilities he intended.

[17] There are different views as to why it is accepted that later generations do not dispute earlier ones. Here I defined it generally as a matter of self-acceptance, but this is not the place to elaborate.

[18] It is still possible to argue that there is a kind of lack of alternative here, and that the judge cannot rule according to the laws of doubt. The case under discussion is one where, in the language of the question, each litigant claims kim li, and perhaps they hold that he has the ability to seize according to the laws of seizure. For that reason it may be that the Geonim think the judge must decide the law in such a case and not rule according to the laws of doubt. But none of this appears in their wording, and therefore the explanation given above seems more likely.

[19] Perhaps this itself is how halakhic truth should be defined.

[20] Other examples, each of which requires its own discussion: situations where the law exists but one does not instruct accordingly; the disqualification of relatives as witnesses and judges; and others.

[21] See Menahem Elon, HaMishpat HaIvri, vol. 2, almost all of which is devoted to this issue.

[22] Compare this to the famous remark of Ketzot HaHoshen in his introduction: The Holy One, blessed be He, chose us and gave us the Torah according to the determination of human reason even though it is not the truth; and therefore one who betroths on that basis effects a full betrothal, provided that it is true according to human reasoning.

[23] Some may cite here the well-known story of the question R. Chaim asked R. Yitzhak Elhanan, where they asked him to answer only ‘yes’ or ‘no,’ because for every rationale R. Yitzhak Elhanan would present, R. Chaim could offer counter-rationales.

Against that background, it should be noted that R. Chaim was the rabbi of the city of Brisk, and presumably he was paid to issue halakhic rulings, not to ask R. Yitzhak Elhanan halakhic questions. It is clear and well known that his legal rulings were tested in the same crucible in which his conceptual distinctions in Maimonides were tested. Therefore the example above, though deep, does not express the full halakhic conduct of R. Chaim, and in my view not the conduct demanded of us either.

[24] In such a situation there is also responsibility not to advance conceptual distinctions that cannot stand the test of practical law. Today there is no obstacle to proposing any idea whatsoever, because practical ruling is hardly dependent on the conceptual reasoning that arose in learning. One who is prepared to desecrate the Sabbath on the basis of a conceptual conclusion he has reached in learning will obviously be far more careful about the concepts he advances.

[25] Kovetz Shiurim assumes that these are sweeping guiding rules. One might have suggested, however, that these rules are a summary of all the concrete halakhic rulings: it simply turned out that in all disputes between R. Meir and R. Yehudah the law was decided like R. Yehudah. But this is not the place to elaborate.

[26] See Kuntres HaSefeikot principle 6, subsec. 6, who writes in the name of the Radbaz (vol. 4, sec. 1187) that in such a case one cannot even claim kim li against the decisor accepted in that locale.

[27] See also Kovetz Shiurim, Bava Batra, sec. 274, on what he cites from a responsum of the Rema, and the difficulty that Kovetz Shiurim himself raises against it.

[28] The codification controversy that took place in the sixteenth century, within which these remarks of Maharshal and Maharal were made, was directed against the Rema and the Mehaber themselves. As is well known, they themselves belonged to the camp of decisors that greatly restricts autonomy in ruling, and the matter is ancient.