The Casuistic Structure of the Talmud (Column 482)
In the previous column I discussed the role of nafka minot (practical differences) in Talmudic thinking. The starting point for that discussion was the relationship between study and its practical ramifications (addressed in column 479). In this column I wish to touch on a related point: why the Talmud prefers to present its discussions and principles through concrete cases rather than through general theoretical principles. In legal terminology, this is the question of the Talmud’s casuistry.
The question
In my essay on ukimtot I wrote the following about the character of the Talmud:
Science formulates its general laws explicitly, e.g., “Every … is …”. By contrast, the Sages—both in the Mishnah and in the Gemara—almost never use theoretical formulations; that is, they rarely lay down abstract, general principles. The Sages prefer to express themselves through specific cases that embody the general laws (in legal terms: a casuistic method, as in British law).
Nevertheless, as we shall see below, it is clear to the Gemara that the Mishnah intends to teach a general law and not only a specific ruling. The case cited in the Mishnah is taken as a casuistic expression of a general law. This is why the Gemara abstracts the case in the Mishnah and turns it into a “laboratory case,” thereby distilling the general law out of the Mishnah’s casuistic formulation.
I must add that even the Gemara, when extracting the general law from the Mishnah, does not formulate its conclusion as a general law. The ukimta is the formulation the Gemara uses to describe the general law. Thus the Gemara continues the casuistic manner of formulation used by the Tannaim in the Mishnah: the general law is presented in the Gemara through test cases (laboratory situations) that allow us to see which general law the Mishnah had in mind.
There are three claims here: 1) The Mishnah and the Talmudic discussion prefer to deal with cases (hence “casuistry”) rather than general principles. 2) Nonetheless, it is clear to all that behind these lie general principles. 3) Even the Gemara, which tries to extract the general principles from the Mishnah’s cases, formulates its conclusions by way of cases (the ukimtot).
This picture naturally raises the question I noted in footnote 14 there without explaining it:
Why indeed do the Sages prefer a casuistic formulation and refrain from using the language of theoretical laws (as in a positivist system)? I cannot address this important question there, and for my purposes here it suffices to establish the fact that this indeed is the Sages’ method.
At first glance this appears to be intellectual primitiveness. But I wish to argue that it is not so—that the Sages have very good reasons to prefer discussion in this form. About four years ago I was asked by Avraham (and more recently by EA) about this claim. They asked me for a further explanation, and that is what I shall offer in this column.
Casuistry
The term “casuistry” comes from the Latin casus (case). In the legal world a casuistic law is defined as a law framed conditionally: if someone commits murder, his punishment is such and such; as opposed to a formulation as a rule or theoretical principle: it is forbidden to murder. But this is a technical distinction and, in my view, not terribly interesting. What is more relevant for us is the casuistic approach (not just the wording), which advocates running the legal system through precedents and analogies to them, rather than through rules and deductive derivation from them.
Ask a person how a legal system works and he will likely answer that the legislature sets the rules (the laws), and the citizen or the judge applies them to specific cases. They deduce the legal instruction for the case before them by logical deduction. The law says it is forbidden to murder; now a person is driving recklessly toward a crosswalk where someone is crossing—he understands that this would be an act of murder forbidden by law and concludes that the act is prohibited (and, I hope, refrains from doing it). But this picture is somewhat naïve and by no means universally accepted.
The approach that views law as a collection of general principles and believes in the picture I just described is usually associated with legal positivism.[1] For the positivist, law is a system of rules and the judge’s role is passive. Admittedly, this is a simplistic and extreme description, and in practice even those classified as positivists do not truly think and act that way. By contrast, in casuistic systems the judge is meant to compare (or distinguish) the case before him with prior cases—those stated in the law or in precedents—and to decide accordingly. A principled casuistry tends to think there really are no sweeping theoretical rules, and every case should be judged on its own merits. The basic logical move in this approach is not deduction but analogy (and perhaps induction).
For example, the positivist will say there is a general prohibition on lying, and that in every case we merely apply that prohibition. The casuist, by contrast, may hold that there is no general prohibition on lying in every situation, and that each case must be judged on its own. In some cases lying is permitted; in others not. On the face of it this is a rather silly formulation, since clearly there is a general prohibition on lying, except that in certain cases one may deviate from it. In other words, deviating from it requires justification—not the other way around. It is true that the legal instruction varies across cases and is hard to formulate as a sweeping rule; but that does not mean there is no rule. From the perspective of pure casuistry, there is ostensibly no need for legislation and no rules at all; one could run everything by accumulating comparisons to precedents.
These are of course extreme formulations. I know of no positivist who truly believes a general rule applies to every case and that there is no room for common sense and interpretation that would carve out exceptions. I do not think there exists a positivist who sees the judge as a mechanical logic engine deriving outcomes from the statute book. Conversely, there is also no jurist who thinks we have no need for laws and legislation—that judges suffice and legislators are unnecessary. A heap of cases without any general rules is not a legal system one can operate (how are the cases to be evaluated? If there are no rules, what are the guiding lines?). The two pictures I sketched can perhaps serve as theories and/or general approaches to law—setting an overall direction—but in practice one cannot truly run a legal system that way. Pure positivism is too rigid and fossilized; actually running a legal system requires some flexibility and attention to the particulars of each case. Extreme casuistry is likewise impossible as a method for a judge to reach decisions and, indeed, for legal certainty (that citizens or judges can know what is permitted and what is forbidden and what the law says). These are but simple examples of the problems with both approaches.
As noted, at first blush positivism looks like the cleanest, purest approach—the natural picture. The legislator sets rules and the judge applies them. Without this, we fall into the controversial, complex, and irritating maze called “judicial legislation,” that is, situations where a judge’s interpretation of the law effectively becomes a new piece of legislation—seemingly beyond his authority. But on the other hand it is clear there is no way to create a legal system composed solely of general laws and give the judge the role of a passive deductive engine. Such an approach leads to terrible distortions in many cases. Hence, nowadays no one holds either picture in its pristine form.
A milestone in sobering up from legal positivism was the Nuremberg Trials. There something inconceivable happened within accepted legal thought: individuals were prosecuted for obeying the laws of their own country (Nazi Germany, in that case). The Nazis’ defense was that they were following orders or the law, but the claim was not accepted. Complex and more flexible legal constructions were developed that did not view the law and the rules it sets as the last word. One must understand that there are situations (cases) where the law (the rule) does not apply, or at least there is no obligation to obey it. More than that, obedience to the law is not a defense and may lead to conviction. A less extreme continuation of these doctrines is the construction of the “manifestly illegal order,” which likewise instructs a person not to carry out a directive received from a legal authority where it contradicts fundamental principles (even if they are not explicitly written in the statute book and were not enacted; for example, moral principles).
Despite the convergence of the two pictures I described and the retreat of various legal systems from the extremes, in the final analysis there remain two types of legal systems today: those that lean more toward positivism, i.e., legislation by rules (e.g., German Bundes law). These systems view the judge’s role as deciding the case before him by deductive derivation from statutes. And there are legal systems that advocate adjudication primarily through comparisons to precedents (British common law), which see the judge’s role as analyzing similarities and distinctions in the precedents. As stated, neither system truly resides at the extremes I described. Both progress steadily toward a compromising middle. Both have enacted laws that are binding, not just precedents; and both make room for non-deductive analogies and distinctions, and for attention to the special circumstances of different cases.
Halakhic rules and Ptolemaic astronomy
We have seen that adopting a positivist approach to law yields a rigid, fossilized product that cannot truly capture lived reality in all its complexity. The reason is that no law can genuinely cover all cases and their differences.
A good analogy here is Ptolemaic astronomy (of the Greek astronomer Ptolemy), which took the heavenly orbits to be circular. The circle is a perfect, aesthetic, harmonious path, and therefore it seemed clear to them that this is how the world must operate (a kind of aesthetic version of Occam’s razor). Of course this thesis did not stand up to the facts and was contradicted by various observations (our stubborn world refuses to be aesthetic—at least not according to the aesthetics within us). They therefore added epicycles and deferents to reconcile the circular-orbit assumption with reality. Epicycles are smaller circular paths superimposed upon the larger circular orbit, and one can then add further circles and spheres within the previous ones, and so on, to adjust the model and bring it closer to empirical observations. In the end Tycho Brahe and Kepler came along and showed that the orbits are actually elliptical. After taking account of all the epicycles—circle upon circle upon circle—and all sorts of small circles, the whole thing is an attempt to describe an ellipse by means of a big circle with two smaller circles at its ends, and then to fill in the picture with more and more little circles until one arrives at an ellipse.
Ever since, “epicycles and deferents” have served as an analogy or expression for a fossilized outlook that insists on speaking an a priori language to a recalcitrant reality. This forces those who hold such a view to complicate matters endlessly to preserve the language, instead of changing the language and acknowledging that reality owes nothing to our a priori categories. Sometimes an openness to a new language and a willingness to abandon the old reveals that describing reality is much easier than we thought.
Back to the Talmud
Returning to the Talmud and halakhah, the rules there behave quite similarly. I will illustrate with an example. There is a clear Talmudic rule for deciding disputes between Abaye and Rava: the law follows Rava in all disputes except for six cases, remembered by the acronym YaL KaGaM (see Kiddushin 52a and parallels). Seemingly a very clear rule fixed already in the Talmud, uncontroversial. Yet Maimonides rules in several additional places (beyond those six) in accordance with Abaye. For example, regarding “lo titgodedu” (see Yevamot 14a; and Rambam, Laws of Idolatry 12:14) and regarding “i aved lo mehani” (according to some interpretations; see Temurah 4b; and Tzitz Eliezer IV §3, who discusses this at length; and see here). It is no surprise that devotees of rules begin to add epicycles and deferents to the Talmudic rule. Some propose a sub-rule: in disputes where Abaye and Rava argue about the view of other sages (Tannaim or earlier Amoraim), the rule does not apply. Whence this sub-rule? To my mind, only from their fevered imagination. If more exceptions are found (places where Abaye and Rava disagree over others’ views and the law still follows Rava), another epicycle and deferent will be added—for example: if the dispute concerns Tannaim of the third generation and later, then in fact the law follows Rava; or in such a case it necessarily follows Abaye; and so on.
The reason for these convoluted moves is very similar to our astronomical example: the assumption that the rule is rigid and sweeping does not stand up to the facts, and in order to continue holding on to it, small auxiliary assumptions are added. But this assumption is manifestly mistaken. The Talmud, like every legal system, shows remarkable recalcitrance toward the positivism of the “rule-mongers,” though to their credit they do not despair. This is probably also why this literature is entirely neglected—not only by students but even by halakhic authorities and decisors.
My claim is that this is why the Talmud does not believe in rules and focuses on cases. Rules are too rigid; cases always refuse to submit to them. Therefore it sees dealing with cases and analogies as a more effective, efficient tool than formulating rules and deriving deductively from them. No wonder the Talmud rarely formulates sweeping rules and prefers to deal with cases (and sometimes present the rule through them). The belief embedded in this structure is that—like English law—the Talmud does not believe in rules but in examples and more flexible thought. It looks looser and less efficient, but ultimately it yields far more accurate, correct, and less fossilized results. Cases convey the halakhic message better than sweeping rules. Examples will follow.
The hermeneutic rules of “general and particular”
In the second volume of the Talmudic Logic series we dealt with the hermeneutic rules of “general and particular” by which the Torah is expounded. We showed there that even the Torah has no general laws and prefers formulation through examples. For instance, regarding the redemption of ma’aser sheni, the Torah does not tell us the rule—what one may redeem it for and what not. It gives examples (“herd and flock, wine and strong drink”). We are meant to generalize from these examples to understand what is permitted and what is forbidden.
The Gemara sees in the verses describing the redemption of ma’aser sheni a structure of “general, particular, particular.” In the hermeneutic rules there are two further related structures: “particular and general” and “general and particular.” We explained that this is halakhah’s alternative to the positivist structure. The hermeneutic rules instruct us that when the Torah formulates a verse with a general expression followed by some particulars and then again a general expression, it intends us to take the examples and generalize them to various radii determined by the formulation: “general–particular–general” → a medium-radius generalization; “general–particular” → a minimal generalization; “particular–general” → a maximal generalization. And in one place in the entire Talmud we also find a “particular–general–particular” structure—a different medium-radius generalization.
We explained that these structures arise from the very problem that modern legal positivism tries to cope with. We illustrated it through H. L. A. Hart’s (the positivist’s) discussion about bringing vehicles into a children’s playground. A general law banning “vehicles” tells us nothing about what exactly counts as a vehicle: bicycles, a toddler’s ride-on toy, a war-memorial tank, a tractor? Context can help us understand the intent (purposive interpretation: preventing noise or the risk of running children over), and we can also do this through examples: “No vehicles may be brought into the playground, such as a motorcycle, a tractor, or a car, and similar.” Note the “general–particular–general” structure, whose goal is the understanding that, on the one hand, the law is broader than the specific examples, and on the other, the examples are the basis that gives us the direction for generalization. This is a good illustration of the limitations of a rule compared with examples, and of the advantages of combining the two.
Another example: “This one benefits and that one does not lose”
In column 431 I discussed the development of lamdanut (analytical learning) over the generations. I illustrated its sophistication through the sugya of “zeh neheneh ve-zeh lo chaser”—“this one benefits and that one does not lose.” The backdrop was the tension between a positivist formulation of a sweeping analytic rule like “this one benefits and that one does not lose” and a casuistic discussion of a specific case: “One who lives in his fellow’s courtyard without his knowledge—must he pay rent?” The Gemara usually discusses cases, but in that unusual sugya the Gemara itself tries to extract the rule from the case; in most sugyot this is done by the commentators. It is worth seeing that column for the full picture; here I will focus on our point.
In the course of the discussion, Rav Chisda enthusiastically reports to Rami bar Chama about the debate in the study hall regarding “this one benefits and that one does not lose.” Opposite Rav Chisda’s evident enthusiasm, Rami bar Chama dismisses it with indifferent scorn, saying that all their pilpul is pointless because the law is set by an explicit Mishnah. After Rav Chisda insists that he identify the Mishnah, Rami bar Chama’s surprising answer arrives:
“If you derived benefit, you must pay what you benefited.”
The case concerns an animal that ate vegetables in the public domain. Its owner is exempt from paying for the damage because “tooth” damage in the public domain does not incur liability. But the Mishnah adds that if the animal derived benefit (it was sated and he saved the feed he would have had to give it), he must pay for the benefit.
This is a fascinating and very puzzling answer, especially coming after build-ups that lead us to expect something sensational. After all, that case is one of “this one benefits and that one loses,” since the owner of the vegetables has lost his produce. How did Rami bar Chama think to resolve the question of “this one benefits and that one does not lose” from that case? One can hardly avoid the sense that the Gemara deliberately creates an expectation of brilliance so that, when the source is revealed, we think it nonsense (as indeed Rava did) and are disappointed.
The Gemara itself asks:
“But that is a case of ‘this one benefits and that one loses,’ whereas ours is ‘this one benefits and that one does not lose’!”
And it explains:
“Rami bar Chama held that produce placed in the public domain is treated as if ownerless.”
One who places produce in the public domain is deemed to have abandoned it.
This cannot be taken literally. If the owner abandoned it, then indeed there is no loss; but then why should one pay him for the benefit? The produce is not his. It is thus clear that the Gemara means that in such a situation it is as if he abandoned it; i.e., he bears contributory fault for placing it in the public domain, and therefore the payment is for benefit as if there had been no loss.
Rava mocks the proof from the Mishnah and is certain it is foolishness. Why? Because he examines matters in a positivist way (see my columns there regarding the usage of talmid chacham). The sweeping rule is that where there is benefit and there is loss, one must certainly pay, and that differs from a situation of benefit without loss. By that rule it is obvious the Mishnah’s case is “this one benefits and that one loses.” Rava is indeed correct. But Rami bar Chama wishes to teach him—and Rav Chisda—that when one examines the case on its own terms one discovers that the rule misses something here. True, there is loss, but there is also contributory fault; thus de facto it is as if there were no loss.
Now ask: is there a sweeping rule for all “no-loss” situations? According to the Gemara’s phrasing—yes, for it speaks about the collection of cases described by the term “this one benefits and that one does not lose.” But now we can see this is only phrasing. Our case is exceptional and the rule should not be applied to it. There is a very good reason, of course, but from the bare phrasing of the rule we could not have known it. One must use common sense and examine our case—not only derive mechanically and deductively from a sweeping rule.
Another example: liability for damage caused by one’s property
The general rule in tort law is that a person must pay if his property causes damage. The condition for liability is that the damaging object was owned by the defendant. From this rule it follows that if the damaging item was not his property, he is exempt. This raises a question: what if an animal is in my custody but is not mine—am I liable for its damages? It turns out that I am. Thus, for example, a bailee or a thief—although not “owners” in the full legal sense—are liable for damages caused by the animal in their possession. This does not sit well with the rule that liability arises only when the damaging item is owned by the defendant, but common sense dictates that in such cases he should be treated as an “owner” for the purposes of tort liability.
In my Bava Kamma lectures (7–11) I discussed the law of one who places his fellow’s animal in another fellow’s field, comparing it to a thief and to a bailee. In all these cases the defendant does not own the damaging object, yet there is logic to imposing liability and responsibility for the damage; and indeed the Rishonim debate whether this is liability as “a person who damages” (in which case ownership is unnecessary), or a special liability the Torah innovated, or perhaps it can be derived from the rule that “whenever one’s property causes damage one must pay,” even though here it is not one’s own property. At least according to some views in some cases, the debate is precisely over the positivist question. All agree that one who takes his fellow’s animal and places it in someone’s field, and it eats, must pay. But Tosafot and the Rashba there dispute whether this is “a person who damages” (since it cannot be “property that damages,” as the placer is not the owner) or “property that damages” despite the lack of ownership—he is “as if” the owner for this purpose. The same goes for the thief and the bailee. Regarding a bailee whose deposit caused damage, for example, some hold the bailee’s liability derives from the laws of bailees and not from torts, since in torts he cannot be liable because he is not the owner of the damaging animal. According to that approach he is liable to the depositor, and the victim must sue the depositor (practically we may simplify this due to shi’abuda de-Rabi Natan). Others hold the liability comes from torts, despite the lack of ownership—he is treated as an owner for this purpose.
Again we see that a positivist formulation that hangs everything on ownership does not stand up to specific cases. It is too rigid and fossilized to handle reality’s complexity. Yet the Talmud does not forgo the general formulation, and still ties liability to ownership. It relies on our interpreting matters with common sense and applying them according to circumstances, not merely by technical deduction.
Another example: delivery of a bill of divorce
A final example is the delivery of a get. The Talmud’s attempts to define what counts as delivery of a get are extraordinarily extensive. Scores of examples are brought (primarily in tractate Gittin): a get written on something prohibited for benefit; placing the get in her courtyard; giving it into his own courtyard and transferring that to her; a get in her hand with a string in his hand; a get in the hand of her sleeping (and bound) slave; “this is your get but the paper is mine”; and many, many more.
The commentators struggle desperately to extract from this welter of examples a rule that will define “delivery of a get.” Such a rule would be sweeping, so that all the Gemara’s cases would be instances of it (and one could deduce the law deductively in each case). The Ketzot HaChoshen tries to define delivery as either a transfer of ownership or a physical handing over, and rejects both possibilities (prohibitions of benefit undermine transfer of ownership; physical delivery is undermined by transfer via courtyard). The Ketav Sofer devotes four long, very tiring sections to this (§§14–17), offering tortuous formulations that attempt to fit all the examples—and come up empty-handed.
The obvious question is: why didn’t the Gemara itself give us the rule, sparing us the frustration and futile labors? Seemingly, formulating a rule would reduce the chance of error in application to various cases, since we would use deduction from the rule to know the law in each case. In my Bar-Ilan weekly-parashah essay for Ki Teitzei (year 5755), briefly mentioned as well in my essay on Zeno’s arrow, I argued that the reason is that there is no simple way to formulate such a rule. Any formulation would lead to mistakes and misapplications in various cases. Therefore the Gemara preferred to give us a long list of cases, assuming that studying them would clarify the law of delivering a get in the best way. Surprisingly, it is precisely the casuistic presentation that yields the most accurate result and minimizes errors in application. Rules and logical inference are reliable, absolute, and precise—but their very strength is their weakness. Analogy and comparison to cases—tools that are weaker and less precise—produce better outcomes.
Incidentally, in learning systems today it is already known that the best way to teach a system or endow it with some function is not through a general definition of the function so that the system deduces applications, but rather by training through examples and inducing tentative rules that improve as examples multiply. In my view this is precisely what the Gemara did in the sugya of get delivery.
Following a rule
The later Ludwig Wittgenstein, in his Philosophical Investigations, dwells at length on the problematics of learning by rules. His claim is that, in essence, we have no absolute way to follow rules; therefore giving a rule can never ensure that the learner has understood and applied it correctly.
Take, for example, the sequence: 3, 5, 7…. What is the next number? Many of you, I assume, will say: 9. That is of course a possibility (the assumption being that this is the sequence of odd numbers), but equally it could be 11 (assuming the sequence of primes). So who is right? No one—or, actually, both. Moreover, it is easy to show that any number you propose as the next term can be justified. If someone answers −27.43, I can easily justify that as well. How? Suppose the sequence is generated by:
F(n) = a + bn + cn2 + dn3
We have four fixed coefficients (a, b, c, d). If we require that for n=1 the function F yields 3, for n=2 it yields 5, for n=3 it yields 7, and for n=4 it yields −27.43, we get four equations in four unknowns. Solve them, and now we have an expression that justifies the answer −27.43 as the next term. And so for any number you like.
Now you wish to teach students the sequence of primes, so you write out the primes up to, say, 103, and assume they can now continue on their own. But, as noted, a student might understand that up to 103 these are primes and from there on it’s odd numbers; he will answer that the next is 105. You will never succeed in teaching him the rule, for learning a rule is always based on demonstrating it on a finite number of examples.
Wittgenstein concludes that rules have no independent standing. Their meaning depends on the examples and on the contexts of the learner who applies the rule learned. There is no way to transmit a rule from one to another without anchoring it in examples, and the examples can always be extended in whatever manner occurs to the learner. The continuation depends on his way of thinking and habits; there is no single “true” or “correct” continuation. From here we can see why the positivist method rests on an illusion—that acting by rules would minimize error and yield certainty. Not only is acting by rules not recommended; it is impossible. One cannot act by rules without illustrating them through specific examples, and those will in turn project back onto the rule’s meaning.
The conclusion is that positivism is not only ineffective; it is sheer illusion. There is no such thing as positivism. One cannot produce a law that is merely a set of rules and assume they will unambiguously determine the legal outcome for every new case before the judge. The judge will always have to use analogies and common sense; it is thus clear he will not always hit upon the legislator’s intent. This is also the idea behind the “general and particular” hermeneutic rules, as shown above. A rule has no meaning unless accompanied by examples that guide its addressee’s interpretation.
A principled conclusion
The conclusion from the analysis thus far is that one cannot base a normative system on a set of sweeping rules. On the other hand, we clearly cannot function without rules. By what do we decide the law in the case before us? What will guide our analogies to other cases? What are the relevant lines of similarity that determine whether this is similar or different? These are criteria that presuppose some rules. Recall Wittgenstein’s sequences: behind every continuation I proposed stood a rationale. If the next term is 9, the rationale is “odd numbers.” If the next is 11, the rationale is “primes.” If the next is −27.43, the rationale is “the function F with the coefficients we solved for.” So too in all the examples above. The assumption that one who places his fellow’s animal in another’s field is liable is based on a rationale of owner responsibility, from which we extract situations of responsibility even absent ownership. But we cannot jettison ownership entirely from the criteria for tort liability. The prohibition on lying is certainly sweeping, even though there are cases in which it is permitted. It is not true that there is no rule. There is a rule—but it is delicate and not amenable to positivist formulation.
Our path forward in legal and halakhic interpretation proceeds in a continual back-and-forth between examples and rules. We must form a rule out of the examples, return and test it on further examples, and then form an updated, more precise rule—again and again. This is a delicate tango between examples/applications and the rule, and we will never have certainty in the result nor a single, clear, universal outcome. Hence there will always be disagreements among interpreters; we will never rid ourselves of the nuisance of judicial legislation (see on this in the final part of my book Ru’ach HaMishpat). Both rules and cases (examples, applications) are needed in this tango; one cannot do without the other. Positivism assumes one can rely solely on rules and logic—an illusion. Casuistry assumes one can rely solely on precedents and examples—also an illusion.
The upshot is that one cannot interpret without rules—but one must beware of clinging to them. The Talmud speaks in cases and relies on us to infer rules from them. Occasionally it also mentions rules, but even then we must not take them too seriously. We must not adhere to them too tightly. We must always weigh their fit to the case before us. The Talmud says the law follows Abaye only in YaL KaGaM—yet there are additional cases where the law follows him. It is a guiding, approximate rule; we must beware of cleaving to it too tightly.
This does not mean there are no rules at all, or that rules are never precise and truly correct (and are only approximations). It is possible that there exist precise, sweeping rules and the problem lies in our formulations. Perhaps somewhere “in heaven” there is a set of general, precise rules that fully define halakhah; yet even so, our formulations may fail to capture them. Therefore, even if someone assumes that there are precise rules out there (i.e., that “pure halakhah” is a collection of exact, sweeping rules), we must always suspect that the current formulation of a rule is imprecise—just as in scientific research that strives for general laws of nature but assumes that almost always we are dealing only with approximations.[2]
The Talmud’s attitude to rules
From here we can understand the Talmud’s guarded attitude toward rules. Beyond what we have seen so far, I will bring two more examples.
As is known, the Mishnah rarely brings rules; rather, it deals in examples or cases. At the beginning of Bava Kamma, the Mishnah departs from its norm and brings a rule:
“There are four primary categories of damages: the ox, the pit, the mav’eh, and the fire. The ox is not like the mav’eh, and the mav’eh is not like the ox; and these two, which have breath of life, are not like fire, which has no breath of life; and these, which go forth and cause damage, are not like the pit, which does not go forth and cause damage.”
“The common denominator among them is that they are prone to cause damage (Rif’s version: ‘and they are your property’), and their guarding is upon you, and when they cause damage the damager is liable to pay the best of his land.”
After specific examples are cited, the Gemara presents their common denominator. Seemingly, if the Mishnah gives the rule, then the earlier examples are superfluous. Indeed, we might expect the Mishnahs always to give the rule rather than cases—it is more precise and efficient. Well, at least here the Mishnah did us a favor and gave the rule.
Yet the Gemara (6a) asks:
“What does ‘the common denominator among them’ come to include?”
A rather astonishing question. The Gemara sees redundancy in the Mishnah, for it brought both a rule and examples. It already senses something is unnecessary; but what it proposes to remove is the rule—not the examples. It does not understand why the rule was brought if there are examples. One would have expected it to ask the reverse: why give the examples if there is a rule? But for the Gemara, the examples are primary and the rule is secondary and peripheral.
This already points to a far-reaching conception. Not only is the rule not preferable and not necessary; even when given, it is superfluous. The examples do the work on their own; the rule is simply unnecessary.
A second example is in Kiddushin 34a (and parallels):
“Which is a positive commandment not time-bound? Mezuzah, parapet, returning lost property, and sending away the mother bird. And is that a rule? Behold, matzah, rejoicing [on festivals], and hakhel are positive commandments that are time-bound, and women are obligated! And furthermore: Torah study, procreation, and redemption of the firstborn are not time-bound positive commandments, yet women are exempt! Said Rabbi Yochanan: One does not learn from general principles, even where it is stated ‘except for…,’ as we learned: ‘One may make an eruv or shituf with anything, except for water and salt.’ And is that all? What about truffles and mushrooms? Rather, one does not learn from general principles, even where it is stated ‘except for…’.”
Note the Gemara’s startling innovation. Granted, if there is a general rule that women are exempt from all time-bound positive commandments and we find some exceptions, we can say “the Tanna taught the rule and omitted some exceptions.” But when the rule includes a detailed list of exceptions, one would expect there to be no further exceptions. It turns out that even where the rule states “except for…,” we should expect exceptions. This is overt disdain for rules—and precisely where the Gemara brings a rule. The lesson: even when using rules, we must treat them with limited trust and with suspicion: honor it, but doubt it.
It is no wonder that Maimonides—who knew the rule that the law follows Rava except for YaL KaGaM (“except for YaL KaGaM”)—rules like Abaye in additional cases, for he knew just as well the rule that “one does not learn from general principles—even where it is stated ‘except for…’.”
The relationship between practice and theory: halakhah and science
Halakhah deals with cases; theory (lamdanut) deals with rules. The relationship between them is complex. The positivist approach sees halakhah as deductive consequences of theory, but that is simplistic. In many instances the situation is reversed: theory is constructed as generalizations distilled from the insights gleaned from cases. Intuition precedes theoretical conceptualization.
I must admit that in the past I recoiled from practical halakhic decision-making. It seemed to me technical and boring—at best the application of analytic principles. Since then, I have matured. The complexity of real-world practice and its very ungentle fit with abstract, general theories is fascinating. Without analyzing cases with common sense, theories are not worth much. They receive their full meaning when they are set against cases. The theory that “ownership is required to be liable for damage caused by one’s property” is not worth much if one does not examine it against cases of placing someone else’s animal in another’s field, of a bailee whose deposit caused damage, of a thief, and so on.
In passing I will note that even in science, theory by itself—without being applied to cases—remains vague, unclear, and imprecise. Experiment does not only test the theory; it clarifies it and illuminates its implications. In the maturation process I described, I discovered that experimental science has a complexity that theoretical science lacks, with a beauty no less captivating. Their combination yields optimal understanding of the world—just as in halakhah the combination of cases and rules yields optimal understanding and the best decisions.
A concluding note
I have argued here for the Talmud’s casuistic character and explained the rationale underlying the decision to build it that way. Was this conscious? I am not at all sure. I do not know whether the Talmud’s editors consciously thought about how to edit it and decided to leave it in the pattern of give-and-take rather than bottom lines. But it seems to me a very wise decision, and I do think that at least intuitively (even if not fully consciously) this was their rationale. It would have been natural to build a binding halakhic code as Maimonides did, rather than like the Talmud. I do not believe this choice stemmed from primitive thinking or ignorance of the drawbacks of an open text. In my view, at least intuitively they understood the words of Nahmanides in the introduction to Milchamot Hashem:
“And you, the reader of my books, do not say in your heart that all my answers to our teacher Rabbi Zerachiah, of blessed memory, are in my eyes decisive proofs that compel you to concede, and that you will boast if you can raise a doubt against one of them—or that you will strain yourself to enter the eye of a needle to cast off the force of my proofs. It is not so. Every student of our Talmud knows that in the disputes of its commentators there are no absolute proofs, and that most difficulties are not conclusive—for in this wisdom there is no demonstrative proof like arithmetical calculations and physical experiments. Rather, we will put all our delight and suffice, in every dispute, to distance one of the opinions by weighty arguments; we will press the sources; and we will give greater credit to the side that better accords with the plain halakhot and the sound sugyot, together with the agreement of right reason. This is the limit of our ability and the aim of every wise man and God-fearing person in the wisdom of the Gemara.”
The Talmud’s editors only drew the obvious conclusions from this regarding the proper nature of such a work.
I have often noted the genius in the decision of the Sages of Israel to accept the Talmud as the canonical text defining halakhic discourse and decision-making. This is not in spite of its being an open text, but because of it. A closed text with rules and bottom lines would not have withstood changing circumstances and times, nor could it have provided unified answers for all shifting contexts and cultures. It is precisely an open text that enables a conversation among sages and communities of very different cultures, with all attempting to apply flexible principles drawn from Talmudic cases to the cases before them. Many disagreements and much non-uniformity arise—but this is to the Talmud’s credit, not its detriment. A closed, rigid (positivist) text would have shattered amid changing circumstances; today we would not live within a single halakhic culture, but in countless disparate halakhic systems with no possibility of dialogue between them. This is another cultural-historical expression of the decision to prefer casuistry over positivism.
Again, I do not mean to claim this was a conscious decision or that these were the reasons. In retrospect it turns out that the collective thinking that led to this choice was brilliantly effective. Without it, we would not be here today. Thanks to it we have a single halakhic system within which a conversation unfolds among divergent views, approaches, and positions—yet all can speak to one another, challenge and answer, and even sometimes be persuaded and decide. Without Talmudic casuistry, I doubt any of this would have happened.
[1] The connection to the usual meaning of “positivism” is not straightforward. Typically the term “positivism” describes the approach that separates law from morality (as against natural law). Here I use it somewhat differently. There is a connection between the two meanings (to explain it we would have to enter the topic of philosophical and scientific positivism), which I will not pursue here. Here I use “positivism” to describe the view of law as a collection of principles by which the judge is to decide using deductive logic.
[2] See on this in my weekly “Midah Tovah” essays for Parashat Ha’azinu, 5764–5765: essay 53 and essay 101.
Discussion
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… whereas the words of the Rambam…
It should also be noted that most of the literature of the Oral Torah was not written as a planned composition. When an author sits down to compose a book, he can choose the most fitting and precise wording. Even if there had been a desire to create such a work, nobody had the time to do it. The sages were occupied with their trades, with teaching students, with answering questioners, and with hiding and fleeing from persecutors, etc. So there was no time left for careful formulation.
Each sage gathered the traditions he had heard from his teachers and colleagues, along with the issues that arose in questions from the people and the students, and arranged the material in an initial order, by topics or by the order of Scripture and the like. Even when Rabbi Judah the Prince came to arrange all the tannaitic material that had accumulated before him, he tried not to alter in any significant way the sources from which he edited his work.
Beyond that, a composition that is closer to the form of a living, natural discussion, accompanied by “cases from life,” is more interesting and more engaging to readers or listeners. Plato too preferred to present his philosophical method not as a systematic treatise but as a living discussion.
Best regards, Eliam Fishel Workheimer
In the world of Greek philosophy, Aristotle was the one who changed Plato’s dialogical style and began writing systematic treatises by subject. Aristotle’s writings reached the Jewish world in their Arabic translation during the period of the Geonim, and the sages of Israel began to discuss and grapple with his views in philosophy and the sciences.
Perhaps under the influence of the encounter with Aristotle’s systematic writing, some of the Geonim too—for example, Rav Shmuel ben Hofni and Rav Hai Gaon—began writing halakhic monographs formulated systematically. The peak of this genre is Rambam’s work Mishneh Torah, which cast the world of halakhah into a systematic framework. In the field of Jewish thought, Ramchal followed the path of systematic writing in his books Mesillat Yesharim and Derekh Hashem.
Best regards, Yiftah Kadmoni Buch-Trager
What does “contributory fault” mean?
When the injured party or the damaged party contributed through negligence to the outcome, that is called contributory fault.
And what does “approximate guiding rule” mean? [I won’t press further. Those were the only two terms here that were unfamiliar to me.]
A1. You wrote that pure positivism does not fit with the Nuremberg trials. Is that a criticism of positivism, as opposed to casuistry in the sense of the column (deriving from rules versus learning from cases)?
A2. You demonstrated a problem with following a rule—that is, a problem in deriving the rule from a collection of examples—and then instead of using that to criticize casuistry, you criticized positivism. I didn’t understand (why this is not a criticism of casuistry, and why it is a criticism of positivism).
B. Your method is that one moves back and forth between the rules and the cases. This deserves some thought. It seems that you hold that a person’s mind should come to rest only in a system that reaches harmony—meaning that he looks at his rule (using his “faculty for judging rules”) and looks at the cases before him (using his “faculty for judging cases”), and at the end of the process the judgments converge. If these two faculties of judgment are different, then there is no necessity at all that harmony be reached. If a person has only the faculty for judging cases, and from it one tries to generalize rules, then clearly one must reach harmony (and the cases have priority). I, for example, think one can directly apprehend moral rules, and one can also apprehend concrete cases, and there may very well be an unresolvable dissonance between the judgments, because the faculty for judging rules stands its ground and the faculty for judging cases stands its ground. Sometimes one simply has to decide in the conflict between these two normative systems and not bend the rule for the sake of the case; nor is there any need for one’s view of the case to change of itself in light of the rule. [Here https://did.li/ratzo-vashov1 and also here https://did.li/ratzo-vashov2 section B2]. The questions are: A. Do you think these faculties of judgment are separate in some sense, or is there only a faculty for judging cases (for the legislator, and likewise for the Torah scholar and the moral thinker), and why? B. If the faculties are separate, then do you indeed assume that it is “necessary” to reach harmony between them?
C. It was taught regarding the two wagons: analogy is induction and deduction. That is, anyone who reasons by comparing different cases must pass through the mediation of a rule, consciously or not. So what is the meaning of “rarely, in the sugya there, the Gemara itself tries to extract the rule from the case. In most sugyot this is done by the commentators”? Can you point to one or two sugyot as examples? After all, everywhere they say “What is the reason?” and “On what do they disagree?” and “Whose view is this? It is Rabbi So-and-so, who said…” and there are many rules (apparently in almost every sugya), and every question that is not a frontal contradiction, like most questions, is an analogy and is mediated through the rule.
D1. The Gemara itself raises objections from rules of halakhic decision and does not answer, “One does not derive from general rules.” In searching I saw three times that the Gemara challenges Rabbi Yohanan’s rule that everywhere in the Mishnah the halakhah follows Rabban Shimon ben Gamliel except in three matters, and its answers vary all the way to “These are Amoraic disputes according to Rabbi Yohanan,” but it did not say that one does not derive from general rules. Moreover, regarding the decision rules among the Tannaim, in Eruvin 46 they stated several rules there (such as: in a dispute between Rabbi Shimon and Rabbi Yehudah, the halakhah follows Rabbi Yehudah), and then Rav Mesharshia said, “These rules do not exist,” because he found one case that contradicted the rule. That is, Rav Mesharshia understood that the decision rule truly stands in opposition to exceptions, and that one does derive from general rules. And the Gemara indeed rejects his argument: “Perhaps where it was explicitly stated, it was stated; where it was not explicitly stated, it was not stated,” and in Rashi: “Where it was explicitly stated that the halakhah follows Rabbi Shimon, it was stated; and when we gave the generalization that in disputes between Rabbi Yehudah and Rabbi Shimon the halakhah follows Rabbi Yehudah, that was for cases where no halakhah was explicitly stated, neither like this master nor like that master.” That is, one does derive from general rules (at least in decision rules, whose whole purpose is to allow or summarize a ruling without deciding the substantive issue), unless there is explicit and solid evidence to the contrary.
D2. The sub-rule that personal decision rules were said about the sages themselves and not when they disagree about the views of others seems logical to me. If they disagree about a tradition, then obviously the rule is not relevant. And even if they disagree about what a certain earlier sage held, without expressing their own reasoning on the matter, that is not necessarily of the same kind. For a personal decision rule (like Abaye and Rava, or Rav and Shmuel in ritual prohibitions and civil law) concerns one sage’s superiority in reasoning on the substantive issue itself, but not necessarily his superiority in pinning down the views of the earlier authorities.
And it seems to me that this is a general sub-rule in all the personal decision rules. (In searching “denafsheihu,” I saw in the Rosh that he brought Rabbenu Yonah and also stated this sub-rule himself regarding a dispute between Rabbah and Rav Yosef based on tradition. I remember almost certainly having seen this sub-rule somewhere in the Rosh in a broader form, but at the moment, despite repeated searching, I have not managed to find it, and perhaps my memory is faulty.) The logic, at least when they disagree based on a received tradition and not interpretively about a given earlier sage’s view, is very similar to what appears in Eruvin 82b concerning a linguistic rule in Rabbi Yehudah’s statements—that it is not valid when Rabbi Yehudah says something in the name of Rabbi Tarfon. (By sheer chance I got there. I just wanted to open a random sugya to see the relation between rules and cases, so in the spirit of the discussion I opened tractate 4, page 81, and there I saw the above.)
And surely the halakhic decisors are bound by the decision rules in the Gemara and mention those rules everywhere unless they have a really good reason to deviate from them, meaning strong indications to the contrary, such as that a view “ends in refutation,” or that later Amoraim especially discuss that view back and forth, and the like—not simply on personal judgment of what seems more plausible. (Therefore I do not know what your solution is for the Rambam examples you brought. If he had indications from the sugya to rule like Abaye, fine, and clearly that overrides the rule. But if not, then it remains difficult.)
E. This whole business of the importance of cases is nice, but in practice it caused complications. For example, the Mishnah says: “If one places a jug in the public domain and another comes and stumbles over it and breaks it, he is exempt,” and the Gemara struggles over why and when he is exempt, and brings the qualifications made by Rav, Shmuel, and Rabbi Yohanan, until Ulla’s explanation comes: “Because people do not usually look carefully at the roads” (and it emerges that Rav, Shmuel, and Rabbi Yohanan did not hold this way). Why didn’t the Mishnah write, like Rambam: “If one places a jug in the public domain and a passerby goes and stumbles over it and breaks it, he is exempt, because people do not usually look carefully at the roads”? After all, that is the rule, which the Gemara establishes, and which Rambam rules, and therefore it is apparently correct (and the case illustrates the level at which they said that people do not usually look carefully at the roads). So why did it hurt the Mishnah to add the area code—the rule—so that we would at least know our bearings? It seems that a great many discussions in the Gemara could have been spared by a few simple words added to the Mishnah. Do your remarks in the column include a solution to this problem too? That is, even in simple and necessary matters, the Mishnah supposedly does not lift a finger to give (also) the rule, so that later generations will understand correctly.
Regarding following a rule from examples, you said that for any collection of examples there may be infinitely many different rules (every rule is a conservative midrash), and you illustrated this with a polynomial. This is an old point, but I still do not understand what you found in a polynomial more than in a rule that simply specifies the examples with no explanation at all (because it cannot be formulated more briefly). After all, an arbitrarily concocted polynomial has no advantage over any other arbitrarily concocted rule. On the one hand, you require there to be some sort of logic in the proposed rule (and therefore you require the inventor of the rule to produce a smooth function, which for some reason counts in your eyes more than something else), but on the other hand you set no serious condition on that logic. But it is obvious that if one sets conditions on the logic—such as ordinary human judgment and Occam’s razor, etc.—then the practical problem is largely solved.
You once explained to me https://did.li/follow-rule: “When you produce a function, it helps you explain why there is ‘logic’ behind the surprising continuation you propose. To your plain (Wittgensteinian) claim one can reply that you are an idiot and do not understand, that’s all [I suggested there: ‘for 1 I return 1, for 2 I return 2, for 3 I return 3, for 4 I return 4, for 5 I return 17’]. The fact that some idiot is certain that 1+2=16.8 does not make that a legitimate and acceptable statement like the answer 3. But when you present a function, you show that your continuation is no less well-founded than any other continuation. I don’t see what is unclear here.”
What is unclear is the hierarchy you establish among different kinds of logic. If one needs a hierarchy among kinds of logic (a polynomial is preferable to the bare, unsupported claim I suggested), and that hierarchy is based on human judgment, then the entire practical problem evaporates. [Therefore it seems to me that the polynomial point blunts the sting of Mr. Ludwig’s claim.]
An approximate guiding rule is a rule that is not exact but only guides you in the right direction. Unlike the previous one, this is a term of my own.
A1. I wrote that there is a connection between these meanings. Positivism is based on enacted rules, and what gives them validity is the enactment. In that sense, the Nuremberg trials contradict it.
A2. Positivism seeks certainty and unambiguity. Casuistry does not.
B. I don’t know whether they are different. Examining cases may perhaps be based on unformulated and unconscious rules. But we have the ability to know what is right even without being aware of the rules in the background.
C. As I answered earlier, there are unformulated rules. Analogy presupposes them, but is not aware of them. Sometimes the Gemara extracts the rules that underlie the Mishnah, but usually this is done by the commentators.
D1. Apparently here too there are no rules.
D2. דווקא the rule of Abaye and Rava seems summary-based and not based on some a priori superiority of Rava. They summarized all the rulings and saw that in all of them the halakhah follows Rava except for six cases. I do not see the logic of this qualification, because if one follows Rava, then one should follow him also on a question of tradition. All the more so since this is not a dispute about tradition but a dispute that depends on the views of earlier sages. It is not a dispute about what someone else said, but whether to follow this authority or that one.
I agree that the rule has meaning, and only if there are reasons does one not follow it. That itself is what I argued.
E. Clearly rules can be helpful, and not for nothing do the commentators find rules in explaining the Gemaras. But as I wrote, if one formulates a rule, it may cause us to cling to it and then miss exceptional cases. Therefore the Gemara adopts a policy that is wary of rules.
From a standpoint of reason, a polynomial is stronger than an arbitrary concocted rule. There is a regularity shared by all the cases. That the practical problem is solved is entirely correct, and that is exactly my claim: not to seek certainty and rules, because they do not solve the problem unless one also adds common sense (ordinary human judgment) to them. A rule by itself does not work, and therefore there is no certainty.
D1. I don’t understand. The Gemara in Eruvin 46 cited above deals directly with the attitude toward decision rules, and one sees there explicitly not like the easygoing approach that one may deviate from any rule even without solid and robust evidence. (Rav Mesharshia there even thought that any rule with an exception is no rule at all.)
D2. Is it statistically plausible that a summary rule would be so one-sided? And even if so, from the summary one learns that Rava has an advantage, and one can easily generalize that to cases not sampled (which is why from the outset the summary need not be exhaustive). Even in a dispute whether to follow this authority or that one, I do not see why one should specifically follow Rava (Rava, and against a Tanna at that?), why in such a dispute is it logical to prefer Rava’s determination?
“Reasons” to deviate from the rule cannot be personal judgment, but only evidence from someone with the authority also to override the rule (as the Gemara above says that the decision rules among the Tannaim hold except where it was explicitly stated otherwise). Therefore I do not understand how the freedom to grant “reasons” solves the problem with Rambam.
With God’s help, 24 Sivan 5782
Alongside the didactic advantage of explaining by way of multiple examples, there must somewhere also be defined rules, so that “at the end of the day” the citizen upon whom observance of the law is incumbent will know “what his duty in his world is,” what the boundaries of the permitted are and what the boundaries of the forbidden are. It is not just that only after the fact and retroactively a person should discover, from the court’s ruling, whether he acted properly or not.
If we want law-abiding citizens, we must both formulate rules and illustrate them with clarifying examples, so that every citizen will know what is forbidden, what is permitted, and what is borderline and requires “asking a sage.”
In this they noted the differences between the late Justice Shamgar and Justice Barak. Although both were innovators, Shamgar was careful to formulate clear rules so that the citizen would know in advance the boundaries of the permitted and the forbidden, whereas Barak left many of the questions to the rulings of the court, which by nature are “wisdom after the fact.”
Best regards, Shalom Sheftil Halevi Breitman
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… we must also formulate rules…
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… Shamgar was careful to formulate rules…
Note:
In Torah law, formulating rules so that everyone knows them is less necessary, since the aspiration was always that in every place there would be someone who teaches the people the halakhah, whose door is always open and whom one can regularly consult before acting—something not found in the general legal system, whose leaders do not answer “halakhic questions” of the “ordinary citizen.”
Therefore it was possible to leave in the hands of the halakhic teachers in every locale the judgment of how much to define the rules for the ordinary person and how much to leave them as “Oral Torah.” The more the process of the people’s dispersal increased due to the hardships of exile, and the more rapid and numerous the changes in ways of life, the greater the need to formulate the “rules” and make them accessible to the broader public.
Best regards, Shesha"b
An example of a system of defined rules (though with many exceptions) is language, which usually has a complex system of grammar rules. And on the other hand, one who speaks his mother tongue fluently often does not know how to define the rules, yet certainly knows how to use them accurately in his ordinary speech, as he absorbed them from his parents and surroundings.
I remember my amazement when I discovered that in many languages (except for Hebrew and English) every word has a different ending (“case”) depending on its syntactic role in the sentence. The ending of the nominative (= subject) is not like the ending of the accusative (= direct object), and the ending of the genitive (= possessive case) is not like the ending of the dative (= indirect object). And I was really blown away by the Arab, Turkish, Hungarian, French, and Russian child, and others, who “know” for every word they say to distinguish between nominative, accusative, genitive, and dative—something that Moses, Aaron, and Shakespeare did not merit 🙂
Best regards, Shlomo Sheftel Breitman
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… unlike the ending of the accusative (= direct object), and unlike the ending of the genitive (= the possessive case), unlike…
[If enough is enough, still I will try to sharpen this at least for myself. I asked from two angles: A, what advantage a polynomial has over a strange rule; B, if it has an advantage and *therefore* you used it, then by that very same logic the real rule has an advantage over the polynomial. You answered that a polynomial has an advantage because it has a regularity shared by all the cases. That is not clear, because every rule (for example, a list of numbers) has a regularity, namely the rule itself. And now angle B reawakens and says that at the problem stage one does not yet rank regularities by “plausibility,” and therefore the polynomial, like any other rule, is strange and bizarre however much so; while at the solution stage, when one does rank them, the problem is solved as you say because the correct regularity is “more plausible” even than the polynomials. So I still do not understand what the polynomial contributes, and why it does not impair the sharpness of the argument by covertly introducing considerations of plausibility. Perhaps it contributes didactically at the first stage before climbing to the full argument, which accepts all the “rules,” all of them.
Your surprising use of the rule-following argument to criticize the positivist demand for certainty (as you answered me above in A2) I still haven’t grasped, and I need to think more about it.]
And back to the Talmud—
The “casuistic” character is also necessitated by the character of the transmitted teachings, which were often said as practical guidance to a questioner or to a community, in which case by their very nature they were defined as instructions of “do” or “do not do.” If one wants to preserve and pass on the traditions, it is important to transmit them in their original wording.
When the learners have in hand as full a collection as possible of the traditions and teachings, the penetrating student can define “rules” that will make it possible to apply the “received Torah” to new cases through understanding the guiding principle of all the details.
The “casuistic” character suits the stage of “learning” (“lemigmar”), transmitting the traditions accurately, while the “rules” are suitable for the more advanced stage, the stage of “understanding” (“lemisbar”), in which the penetrating student can define the principles and thereby “understand one thing from another.”
Best regards, Shasha"b
Also in the example we gave of language, first comes the stage of learning the language through exposure to the speech of one’s surroundings, and only at a more advanced stage does the student learn the “rules.”
Rabbi Shasha"b, it seems to me that the difficulty still outweighs the answers by a great deal. I reflect sadly on how many mistakes were caused by the Mishnah’s refraining from revealing its secrets, how much unnecessary labor was invested in deciphering it (and then in later generations they toiled to decipher the various decipherments), and what wonderful products there could have been if that labor had been invested elsewhere. Perhaps, for example, today we would have a Bavli on all of Zeraim and Taharot. This really seems like an exasperating approach on the part of the Mishnah (and other books in turn), so the explanations for it need to be great enough to fill the enormous Torah void that this approach seemingly created. A rule alone is certainly not enough, but cases alone are really not enough either, and both are necessary (as shown in the column).
[“Rule” may be too strong a word; it would be enough if the Mishnah revealed an “area code,” meaning what topic is being discussed at all. For example, I saw a Mishnah where the Gemara is not sure whether the dispute concerns collusion regarding consecrated property, or annulment of a vow made publicly, or the issue of inquiry regarding consecrated property. What good is this mystery? I cannot understand. And it is not that the Mishnah abstains entirely from rules, for even in it there are sometimes rules after cases amid flowing laws (which come up by the dozens in a search for “this is the rule”). And see an interesting example of two kinds of rules one after another in Mishnah Shevuot 8:6.)]
Do you think the deficiency caused by the absence of rules is great, and nevertheless your explanations suffice? Or do you think the deficiency is not all that great, and therefore relatively side-point explanations are enough (there were distractions; it was easier to transmit and memorize; they did not want to alter things by adding; the traditions were given as practical instruction and were thus preserved)?
D1. Indeed, and the Gemara in Kiddushin also deals with rules and says what it says. Therefore I wrote that here too there are no rules.
D2. Why not follow the Tanna whom Rava rules like? How is that different from ruling on any substantive issue? In the end, there too it is a substantive question.
Who has the authority to grant an exemption from the rule regarding women’s exemption from positive time-bound commandments?
Your two comments here stem from a misunderstanding of the same point. You are completely right that one always needs common sense to accompany the rules. That is exactly my claim. I am not against rules but against clinging to them and seeing them as a basis for certainty.
1. The polynomial has an advantage exactly like the “correct” regularity. But that advantage comes from common sense, not from the rule as such, and from this it follows that there is no certainty there either.
2. The rule-following argument does not show that there are no rules, but that they do not stand on their own and do not contain certainty. One cannot make do with them alone without common sense.
Hi,
I understand that you brought in the later Wittgenstein mainly as an illustration of the idea of the limitations of abstract rules. But because I have an over-sensitivity to that scoundrel, I nevertheless wanted to comment on his contribution to this topic. True, in one of your replies to Tirgitz you nicely said what is right and what is not with respect to rules, but there is value (and certainly pleasure) in boiling him in hot water over additional matters.
Wittgenstein’s move is not a “modest” attempt to show the limits of the use of rules and to point out that they are never certain. If that were the whole move, he would be right.
His overall move is an attempt to undermine metaphysics as such—even though his attempt rests on legs that are themselves metaphysical, hence its failure—and therefore to undermine all “order” or rationality whatsoever. In my opinion, a consistent interpretation of his philosophy says that even basic human speech (and therefore all philosophy, including his own) is devoid of all meaning. For speech too is subject to “rules” and to “following rules.”
As for the vitality of the Talmud, which rests on its casuistic character—every word is true. Except that this intellectual and cultural vitality sometimes comes at a heavy price: giving up truth and rationality for the sake of “life,” and for the sake of the resilience of the individual and of the civilization in which he lives. That is not always a price worth paying…
I think some of what I wrote in the first paragraph fits the early Wittgenstein (the Tractatus) better. One should be careful not to confuse the rule-following argument, which is from the later Wittgenstein, with his extreme approach in his earlier version.
D1. So it seems you do not accept the distinction I proposed between decision rules and other rules. Why not? After all, that is the natural explanation for why the Gemara in Eruvin so adamantly refuses to say “one does not derive from general rules” about decision rules, and likewise for the Gemaras that strain to preserve Rabbi Yohanan’s rule that in the Mishnah the halakhah follows Rabban Shimon ben Gamliel. Decision rules are by their very nature meant to summarize and enable decision-making without entering the substantive issue itself; that is their whole essence. Therefore if in the end one still has to reexamine the issue and decide anew (because there may be reasons of judgment to depart from the rule), then the whole rule collapses. Not so for rules like “positive commandments dependent on time,” which are meant to teach a Torah principle, and so it is somehow more conceivable that things were omitted that can be learned elsewhere.
D2. Why yes? Once Rava joined one of the sides (each of which we regard as greater than Rava and Abaye), does the balance of power in our eyes suddenly tilt in his favor? Extraordinary.
The one who has authority to say that there are exceptions to the rule is the one from whom we learned the rule—for example, the mishnayot and baraitot. I did not understand what you meant by that remark.
[I think I did understand this clarified point, and within that framework my remarks still stand. But if not, then not.]
He was a scoundrel when he was “early,” and the grandson of a scoundrel when he became later. “May the name of the wicked rot.” Ptui.
With God’s help, 24 Sivan 5782
In short:
The mishnayot did not begin their lives as a structured composition, but as very brief summaries transmitted orally, and their very brief formulation enabled their absorption, review, and memorization. Such very brief summaries were made in the period of the Tannaim by countless people, some authoritative Tannaim and some students who were less authoritative.
Naturally, Tannaim even before Rabbi tried to “make order” in the stormy sea, and to edit collections containing a selection of the summaries, those more accurate and comprehensive in the editor’s view, which were not necessarily identical to the views of other editors.
Even when Rabbi Judah the Prince arranged his own collection, he avoided drastic changes in wording, which would have completely “driven crazy” the masses of repeaters who were accustomed to the old formulations, and imposing a completely different wording would have utterly confused those who memorized the texts.
There was also no need at all to change the familiar brief summaries, since they were never intended for use as sections of a law book, but as memory summaries with which the student could enter the lesson in which the rabbi explains the matters with their reasons and rationales. And the sages warned not to rely on the mishnayot and derive halakhot from them.
In short: fundamentally, the brief summaries were not originally intended to make the living connection between teacher and student unnecessary. Only in a later period, with the intensification of the dispersal of the people and the growing separation between lands with the collapse of the Roman Empire, did the need grow to write down the Oral Torah. Thus, on the one hand the Oral Torah was preserved, but on the other hand the confusion caused by the multiplicity of possible interpretations of the “text” increased, along with the inability to receive an immediate ruling from a live, breathing interpreter.
One simply has to understand the reality of a Torah that is wholly transmitted and interpreted orally, and not project backward the later reality of abundant written literature.
Best regards, Shlomo Sheftel Breitman
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… drastic changes in wording, which would have…
We are no longer capable of imagining the reality that existed in Temple times, when three times a year all the sages and their students from all over the world gathered in Jerusalem, or the reality of the yarchei kallah in the academies of Babylonia, when all the sages of Babylonia and their students would gather and study together for two months every year. At such gatherings, doubts were clarified and worked through, and points of agreement and disagreement were defined.
Best regards, Shasha"b
There was something similar in Poland during the golden age of the Council of Four Lands, when during the two annual fairs all the rabbis (with their students) and all the communal leaders and heads of the communities would gather, and parallel to the physical “fair” there was also a spiritual “fair” in which all the sages of the “lands” could exchange views.
From these fair gatherings arose the bein hazmanim periods, at the end of winter and the end of summer, when all the heads of the yeshivot, who were also the rabbis of the communities and their judges, would leave aside the regular course of study of the tractates in the yeshivah and engage in joint clarification of the current Torah issues that stood on the agenda. There the complex legal disputes would be decided, and from there would emerge the vital public enactments.
D1. Indeed I do not accept it. Why should there be a difference? Add to that the deviations from rules that appear frequently in halakhah (such as the example of Rambam ruling like Abaye).
By the way, perhaps the solution for the personal decision rules you cited is that these are summary rules (that is, they were created a posteriori, after surveying the various rulings), and therefore when one finds an exceptional example one says that the rule does not summarize correctly, and that cannot be. But an a priori rule that sets a decision principle is only a guiding rule, so there is no problem if it has exceptions. Admittedly, it is a bit difficult to treat a sweeping rule as a summary rule. דווקא ya’al kagam seems like a summary rule because of the exceptions.
D2. And the fact that the Tannaim were greater than the Amoraim means nothing, because in any case the Amoraim are the ones who decide among the Tannaim. So in the final analysis this is an Amoraic dispute.
With or without Yael, one cannot raise an objection from the later to the earlier.
D1. But it is known that the personal decision rules in Eruvin 46 cannot be summary-based because they are transitive?
[As for the reason for rejecting the distinction with the claim “Why should there be a difference,” in my opinion the proof from Eruvin is strong, and one sees there that the Gemara treats decision rules with utmost seriousness and solemnly rejects the idea that there are exceptions that were not explicitly stated in their place. And the proof from Rabbi Yohanan and Rabban Shimon ben Gamliel also seems to me fine. And in the reasoning for the distinction I do see logic. So what do you propose instead—that Rambam had some unknown reason to rule like Abaye, and by force of that mysterious reason he waved goodbye to the decision rules engraved in the rock of the Talmud? True, statistical work is needed here, but with the present data I stand where I stand.]
That is indeed R. A. W.’s proof. But you yourself answered it, with the claim that even a summary rule is based on the logic that Sage A is preferable to B and therefore the halakhah follows him. If so, then transitivity can also exist in a summary rule.
So you are proposing an explanation of the Gemara there in Eruvin: that in a summary (decision) rule, transitivity can exist but unstated exceptions cannot (exceptions stated in the body of the rule or stated explicitly at the place of the exception). That is, you understand the summary as a completely sweeping summary. They went over all the cases and made a summary with several exceptions, and then also inferred from that conclusions about the sages and made it transitive. [I understand, by the way, that this is not really your own view, for you are sympathetic to Rambam who by his unknown judgment suddenly decided here and there to rule like Abaye against a summary decision rule; rather you are speaking according to my view, though you yourself do not hold it.]
But if so, then there is no reason to think they really went over all the cases and made an exhaustive summary, because it is enough to examine a representative sample in order to draw conclusions about the sages, and therefore they decided that generally the halakhah follows Rava. Just as at the transitive stage they were satisfied with information about the person’s superiority, so too they could have been satisfied with that information on the basis of a non-exhaustive summary. [And why are there exceptions? Because there were a few known disputes in which Abaye’s view was accepted and was apparently the prevailing halakhah, and therefore they excepted them.]
Maybe.
I did not understand the Wittgenstein example. On the contrary, a rule like “write the odd numbers” or “the prime numbers” will not lead to any mistake. Whereas the examples 3, 5, 7 have many possible continuations. So this is evidence in favor of positivism, not against it.
Wittgenstein explains there that even the rule of odd numbers or prime numbers (indeed the whole number system) cannot be explained without examples, and therefore in the final analysis even rules will not work without our intuition and habits. Any series of examples you bring to explain the rule will not necessarily truly pin it down.
A. How the Amoraim decided among the Tannaim (at least when there is no rule), I do not know, but presumably sometimes also by reasoning (right?). But how the Rishonim decided halakhah in disputes among Amoraim—is it possible that they decided by their own reasoning on the substantive issue itself, that the view of Rav Pappa seems more plausible than that of Rav Huna son of Rav Yehoshua, or must they always rely on some implication from the Gemara that leans more to one side, or on some rule?
I have no knowledge here, but it seems to me a simple matter that the Rishonim do not decide by substantive reasoning of their own in disputes among Amoraim. If there is a difficulty from a Mishnah and the like, and one side answers only with difficulty, perhaps they can rule against him. But in an ordinary dispute among Amoraim that remains as it is, is it possible that they would rule by pure reasoning? This is not only a factual question about the Rishonim but a “normative” question: what are the limits of the authority of a “first-order decisor,” in your terminology?
B. You explained wonderfully the deficiency of an abstract theoretical rule, that sometimes it is unable to capture the abstract definition, and you brought examples from the hermeneutical rules of general and particular, and zeh v’ein tzrikh lomar zeh, and divorce, and tortfeasor; and also that the Gemara asks “What does this rule come to include?” and says “one does not derive from general rules even where an exception is stated.” Therefore, as a rule, they tried (consciously or not) to avoid rules.
And with this you explained why Rambam sometimes departs from decision rules, and wrote: “It is no wonder that Rambam, who knows very well the rule that the halakhah follows Rava except for ya’al kagam, rules like Abaye in additional cases, for he knows no less well the rule that one does not derive from general rules even where an exception is stated.” Therefore there is no need for the many others who “start adding epicycles and deferents to the Talmudic rule, etc.—where did they get this sub-rule from? To the best of my understanding, only from their imagination.” End of your words. [That is, you expanded the tendency and said that one does not derive from general rules even in decision rules, although there the rule is not an elusive theoretical one.]
Could you sharpen for me what you mean when you say Rambam departed from the rule? Do you mean that in that place it independently seemed to him more plausible like Abaye on the substantive issue itself? Or that he found some implication or proof in the Gemara? Or is this a matter of degree—how strong an implication from the Gemara itself is needed in order to rule that the Gemara itself wants to depart from the rule? As to finding an implication or proof from the Gemara, it surely seems agreed by all (that is, also by the advocates of rules, the creators of the epicycles) that one departs from the rules when there is evidence against them. And only where they found no proof from the sugya either way do they go looking for why the rule does not apply. And when the rule does not apply, then apparently they go looking for another rule by force of which Rambam did decide (for example, in a Torah-law doubt he followed the stringent view).
A. I commented on this in my article on autonomy in halakhic decision-making. Usually the Rishonim decided by rules or by the implication of the sugya. But there are definitely cases where they themselves write that they decided according to the more plausible opinion (demistaber ta’ameih).
B. I don’t know. I only know that he departed. It may be because its reasoning seemed more plausible to him, or because he found another sugya whose anonymous discussion follows Abaye. I do not think you will find anyone who says that there is an anonymous sugya like Abaye and therefore one departs from the rule of ya’al kagam. Therefore I do not agree that this is obvious among the decisors. Not at all. On the contrary: if they find such a thing, they will raise it as a difficulty.
A. Thank you very much. I did not know that (although of course I read the article on autonomy in its time, I did not remember. And in searching now I saw that R. Y. Inbal brought a wealth of sources for the cases you described where they ruled by reasoning).
And in your opinion, what may a decisor do today? If he has before him a dispute between Rav and Shmuel in ritual prohibitions, and by his reasoning Shmuel’s view seems (very) right to him, is he formally authorized to rule (at least for himself) like Shmuel?
B. Apparently, if Rambam can rule like Abaye because Abaye’s reasoning seemed more plausible to him, then it is rather surprising that there are only few exceptions to the rule. (I have not checked and do not know how to check, but it seems reasonable to assume that if Rambam had many rulings like Abaye, this would be a known matter, as in the Tzitz Eliezer you cited in the column and in R. Akiva Eiger, whom he cites and whose relevant sections I read, and I did not see them mention that there are many such deviations.) Perhaps you mean that only if there is a large gap in reasoning (in the eyes of the decisor) in Abaye’s favor can he rule against the rule, and not merely that he chooses by his own reasoning some slight preference among a set of Amoraic opinions presented in the Gemara (and if so, why is that?).
[As for deviating from a rule by force of an anonymous sugya (elsewhere): here too my own confusion misled me, since I mistakenly thought this was a simple matter. Still, I now saw in Yad Malakhi, rule 154, “Specifically the halakhah is like Abaye in ya’al kagam,” that he claimed if an exception is stated, then the rule overrides the implication in the Gemara; and he cited the Shakh, who holds that an implication in the Gemara (I understood this to mean an implication in some sugya) can indeed remove something from the rule. Screenshot here https://ibb.co/60n34xD. It is a pity that I have no way to find more substantial sources than this.]
Only he did that only when it was very clear to him that Abaye was right, not when his opinion merely leaned that way.
Honestly, Rabbi, I didn’t understand. It is quite simple to define the sequence of odd numbers. The first term is one, and the definition is:
a(n)=1+(n-1)*2
I am not defining the rule by means of examples—that is exactly the point.
By contrast, when one learns only from cases, I can arrive at a sequence like 3,5,7… 24.7389, since I have to derive the rule myself. True, there is selection by intuition and common sense, but in a situation where two generalizations seem plausible (primes or odds), there is a problem, as opposed to a case where the rule is explicitly given.
I would appreciate your reply, thank you very much!
You only bypassed the problem. Now you still have to explain to your students the meaning of the symbols in the formula and how to use them.
With God’s help, 23 Sivan 5782
The casuistic style, which illustrates complex rules by means of descriptions of real-life cases, makes it easier to absorb the complex message, and to review and remember it. This is all the more essential in a תורה transmitted orally and intended for a broad, popular audience.
A short and simple case description is easier to formulate in a few brief, rhythmic words, and that is a critical need in a תורה transmitted orally in the manner of “first learn, and only afterward explain” (“lemigmar vehadar lemisbar”). A teacher in a yeshiva high school told me that he assigned a student, as punishment, to memorize by heart a chapter of Mishnah and a chapter of Rambam. The short, rhythmic words of the Mishnah were convenient for memorization, whereas the words of the Rambam the student found difficult to memorize by heart.
Moreover, only a few reached Talmud, and even fewer reached halakhic ruling (“Of the thousand who enter Scripture, a hundred emerge for Mishnah; of the hundred who enter Mishnah, ten emerge for Talmud; and of the ten, only one emerges for practical ruling”). The oral transmission of Torah was intended, among other things, to maintain an ongoing connection between the “people in the fields” and the teachers of Torah, so that not everyone would “issue halakhic rulings from his own learning.” Understanding a complex system of rules was meant to remain the domain of the “masters of the Talmud,” who would safely guide their brothers occupied with their labor, for whom Scripture and Mishnah provide the basic knowledge that leads to “knowing how to ask,” but not to independent halakhic decision-making.
Best regards, Yaron Fishel Ordner