“It Is Not in Heaven”: A Look at Rules (Column 505)
This past Shabbat (Parashat Nitzavim) I spoke in synagogue about the principle of “It is not in heaven,” which is based on a verse in our parashah. The accepted understanding is that this verse forbids recourse to Heaven for deciding halakhah and directs us to human decision-making. I will begin with a discussion of whether and how such a principle arises from the verses, and then go on to comment on it and on the status of rules in halakhah and more generally.
The Verses
The section in which this verse appears ostensibly encourages devotion to God (Deuteronomy 30:11–14):
For this commandment that I command you today is not too wondrous for you, nor is it far. It is not in heaven, [as if] to say: “Who will go up for us to heaven and take it for us and let us hear it, that we may do it?” Nor is it beyond the sea, [as if] to say: “Who will cross for us to the other side of the sea and take it for us and let us hear it, that we may do it?” For the matter is very near to you, in your mouth and in your heart, to do it.
Simply put, the passage seems to be teaching us the lesson of R. Nachman of Breslov’s “Turkey Prince” parable: Do not think you are too small for serving God, that the Torah is too sublime and lofty for you and beyond your reach. It is close to you and within your power to fulfill it. As it is said: “There is no despair in the world at all” (aside from those cases where there is).
But it seems the Sages did not read the verses this way. In their view there is here a meta-halakhic principle. Thus we find in Bava Metzia 59b, in the story of the “Oven of Achnai”:
It was taught: On that day, Rabbi Eliezer answered every answer in the world, but they did not accept them from him. He said to them: “If the law is like me, let this carob tree prove it”—the carob uprooted itself from its place one hundred cubits; and some say four hundred cubits. They said to him: “One does not bring proof from a carob tree.” He returned and said to them: “If the law is like me, let the stream of water prove it”—the stream flowed backwards. They said to him: “One does not bring proof from a stream of water.” He returned and said to them: “If the law is like me, let the walls of the study house prove it”—the walls inclined to fall. Rabbi Yehoshua rebuked them and said: “If Torah scholars overcome one another in halakhah, what concern is it of yours?” They did not fall out of respect for Rabbi Yehoshua, and they did not straighten up out of respect for Rabbi Eliezer, and they remained inclined. He returned and said to them: “If the law is like me, let it be proved from Heaven”—a heavenly voice went forth and said: “What have you with Rabbi Eliezer, for the law is like him in every place.” Rabbi Yehoshua stood on his feet and said: ‘It is not in heaven.’ What is [meant by] “It is not in heaven”? Rabbi Yirmeya said: Since the Torah has already been given at Mount Sinai, we pay no heed to a heavenly voice, for already it is written at Mount Sinai in the Torah, “After the majority to incline.” Rabbi Natan met Elijah and said to him: “What did the Holy One, blessed be He, do at that time?” He said to him: “He laughed and said: ‘My children have defeated Me, My children have defeated Me.’”
There was a halakhic dispute between R. Eliezer and his colleague R. Yehoshua and the latter’s younger colleagues/students; even a heavenly voice that supported R. Eliezer did not persuade them. The rule on which R. Yehoshua relied is taken from the above verses: “It is not in heaven,” from which he learns that we do not heed a heavenly voice, but follow the majority. The story ends with even the Holy One, blessed be He, smiling and saying, “My children have defeated Me” (that is: I tried, but it didn’t work…).
How is this principle derived from the verses? At first glance this is mere homiletics, since the verses are not dealing with deciding halakhah at all, but with encouraging people to keep the Torah and dispelling their despair and inertia. But a closer look at the verses shows the matter is not so simple.
In the two middle verses, the Torah does not suffice with stating that the commandment is not in heaven and not across the sea, but also rejects the statement “Who will go up for us to heaven and take it for us and let us hear it, that we may do it,” or “Who will cross for us to the other side of the sea and take it for us and let us hear it, that we may do it.” These additions do not fit the interpretation of the verses as pure encouragement and the dispelling of despair. If the verses were only meant to spur us to keep the Torah, I would expect it to say merely that it is not in heaven or across the sea but in your mouth and heart to do it. It is not far but within us and within reach. Despair about our ability to keep the Torah is not solved by sending someone to bring the Torah to us. That is not a relevant solution to such a situation. Nor does the term “too wondrous” (nifla’it) seem relevant if this is about difficulty; that phrase speaks to lack of understanding and intellectual distance. So too the conclusion that the Torah is in our mouths and hearts to do it: if the issue is difficulty, the problem is not in the mouth or the heart but in weakness and inclinations.
From all these considerations it seems the verses mean something else. It appears the Torah is indeed addressing a potential thought that could arise: since we despair of knowing what to do (the Torah is “wondrous” for us—its understanding beyond our grasp), we might expect someone to bring us answers from afar—from heaven or across the sea (a heavenly voice, a prophet, the holy spirit). To this the Torah says we should not expect that. Everything depends on us—that is, it is decided by our own mouths and hearts. The decision of what to do is entrusted to human beings here on earth; we should not anticipate heavenly decisions. I think this is how the Sages derived their meta-halakhic interpretation from the verses themselves, and in my view this is not mere homily but a reading that integrates well with the plain sense.
Deciding the Dispute Between Beit Shammai and Beit Hillel
In Eruvin 13b we find a heavenly voice deciding the dispute between Beit Shammai and Beit Hillel:
Rabbi Abba said in the name of Shmuel: For three years Beit Shammai and Beit Hillel disagreed; these said, “The law is like us,” and those said, “The law is like us.” A heavenly voice went forth and said: “These and those are the words of the living God, but the law is according to Beit Hillel.” And since these and those are the words of the living God, why did Beit Hillel merit that the law be established like them? Because they were pleasant and forbearing, and they would teach their words and the words of Beit Shammai, and not only that, but they would place the words of Beit Shammai before their own…
Beit Shammai and Beit Hillel could not reach a decision between them, and therefore resorted to a heavenly voice. It went forth and ruled that the law follows Beit Hillel. I already reviewed elsewhere the background and uniqueness of this dispute (here).[1] In any case, in conclusion it was the heavenly voice that established that the law follows Beit Hillel. This is the most emphatic halakhic ruling in the history of halakhah, and from then on it is accepted that “the words of Beit Shammai, where they conflict with Beit Hillel, are not [considered] Mishnah” (Beitzah 11b and parallels).
Indeed, this is also how it appears in Eruvin 6b. The sugya opens with a baraita:
Do we act by (the stringencies of) both [schools]? But it is taught: The law is always according to Beit Hillel; and one who wishes to act according to the words of Beit Shammai may do so, and one who wishes to act according to the words of Beit Hillel may do so. [But] one who acts according to the leniencies of Beit Shammai and the leniencies of Beit Hillel is wicked; [and] [one who acts] by the stringencies of Beit Shammai and the stringencies of Beit Hillel—of such a person Scripture says, “The fool walks in darkness.” Rather, if [one acts] like Beit Shammai—[one must do so] according to their leniencies and their stringencies; if like Beit Hillel—according to their leniencies and their stringencies.
A person must be consistent and follow a particular decisor, either Beit Shammai or Beit Hillel. One may not even adopt “two stringencies,” that is, to be stringent like two contradictory views.
The Gemara pauses and now raises an internal difficulty on the baraita itself:
This itself is difficult: you said, “The law is always according to Beit Hillel,” and then you said, “One who wishes to act according to Beit Shammai may do so.”
If the law follows Beit Hillel, how can one choose to follow Beit Shammai? The Gemara offers three answers.
The first:
It is not difficult: here [we speak of] before the heavenly voice; here, after the heavenly voice.
It concerns the period before the heavenly voice that decided the law follows Beit Hillel. But after the heavenly voice, one may no longer choose to follow Beit Shammai.
The second:
And if you wish, say: both [clauses speak of] after the heavenly voice, and it is Rabbi Yehoshua—who does not heed a heavenly voice.
Even after the heavenly voice one may follow Beit Shammai. The baraita here does not follow the view of Rabbi Yehoshua (in the “Oven of Achnai” sugya) who pays no heed to a heavenly voice. From this answer it emerges that there is a dispute on the matter, and this baraita holds that there is no rule of “It is not in heaven.” Yet in practice it seems from Bava Metzia that the law follows Rabbi Yehoshua, so according to this answer the law would not require ruling like Beit Hillel. That is rather puzzling.
The third:
And if you wish, say: this is what it is saying—wherever you find two Tannaim or two Amoraim who dispute each other, like the dispute of Beit Shammai and Beit Hillel, do not act by the leniencies of this master and the leniencies of that master, nor by the stringencies of this master and the stringencies of that master; rather, act either by the leniencies of this master and his stringencies, or by the leniencies of that master and his stringencies.
In fact the baraita is not speaking about Beit Shammai and Beit Hillel, but about disputes that are still open and have not been decided in practice. With respect to Beit Shammai and Beit Hillel, there is truly no option to choose to follow Beit Shammai.
In all three answers, the assumption is that the heavenly voice obligates ruling like Beit Hillel—at least if one does not follow Rabbi Yehoshua—even though from Bava Metzia it simply appears that the halakhah was decided like Rabbi Yehoshua.
Tosafot on the Contradiction Between the Sugyot
On this, Tosafot (s.v. “kan,” there) ask:
“Here—after the heavenly voice.” If you will say: What is different such that we do not hold like the heavenly voice in the case of Rabbi Eliezer regarding the oven (Bava Metzia 59b)?
How does this sugya’s assumption (that the heavenly voice deciding for Beit Hillel has force) fit with the sugya in Bava Metzia (that a heavenly voice has no halakhic standing)?
He brings two answers:
One can say that there [in Bava Metzia] it went forth only for his honor, as is evident there.
According to this answer, we do in fact heed a heavenly voice; in Bava Metzia it was a heavenly voice that went forth only for R. Eliezer’s honor, and did not intend to decide the law (though it is not clear how the hearers there were supposed to understand that).
A second answer:
Furthermore, there it was against the majority, and the Torah says, “After the majority to incline.” But here, on the contrary, Beit Hillel were the majority, and the heavenly voice was needed only because Beit Shammai were sharper.
We do not follow a heavenly voice only when it goes against the majority, since the halakhic rule is to follow the majority (so the Gemara in Bava Metzia explicitly says we do not heed the heavenly voice because the Torah says, “After the majority to incline”). If so, a heavenly voice has no standing against halakhah, but not that it has no standing at all. What happened here with Beit Hillel? Here the heavenly voice favored Beit Hillel, who were the majority. Yet Tosafot are troubled: why was a heavenly voice needed at all? The halakhah should have been decided for Beit Hillel without it, by “After the majority to incline.” They answer that the heavenly voice was necessary because Beit Shammai were more incisive and sharper. I will explain this further below.
Tosafot conclude with a difficulty:
If so, what does it mean that “it is Rabbi Yehoshua who says we do not heed a heavenly voice”? Did not Rabbi Yehoshua speak only about the heavenly voice regarding R. Eliezer? One can say that “It is not in heaven” implies that one should never heed any heavenly voice.
Here Tosafot explain that all the above was said according to the first answer in the Gemara. But according to the second answer, we do not heed a heavenly voice in any case—whether it comes to decide the law or whether it does not run counter to the rules of halakhah. In this, however, there is a dispute among the Tannaim (between our baraita and Rabbi Yehoshua). It is not clear how that dispute itself was decided (for one cannot decide it by majority…). Beyond this, I have already noted that it appears our baraita does not follow the halakhah.
Conclusions
First, it is not clear why a heavenly voice was needed here in the first place. Tosafot explain that it was because Beit Shammai were sharper. Does sharpness stand against majority? If not, we have gained nothing. If yes, then we are back to a case where the heavenly voice comes to decide something against the rules of halakhah.
It seems they mean there was an initial thought not to follow the majority because Beit Shammai were sharper, and the heavenly voice decided that even in such a case one must follow the majority. That is, it clarified for us the meaning of the halakhic rule that instructs us to follow the majority. In conclusion, it does not act against the rules for deciding halakhah but only sharpens and clarifies those very rules. Tosafot apparently assume that a heavenly voice may do that.
Did Beit Shammai themselves accept this decision? From many places in the Talmud it appears not. In our baraita we see that one who wishes to act according to Beit Shammai may do so (though, as noted, there are various answers about this). Likewise, in the first chapter of Beitzah we find several disputes between Beit Shammai and Beit Hillel regarding the meal, and there are Amoraim who ruled like Beit Shammai. The Amoraim certainly operated after the heavenly voice, and yet they ruled like them. How is that possible? We are compelled to conclude that one who holds like Beit Shammai will certainly not begin to act like Beit Hillel because of a heavenly voice—and surely Beit Shammai themselves did not do so. In their view one must follow sharpness, and the majority does not determine against it.
I think the explanation is that according to Beit Shammai the heavenly voice offers a way out that contradicts halakhah (since in their view halakhah is that sharpness decides and not majority). Therefore, from their perspective one should not heed it, for we do not follow a heavenly voice when it contradicts the rules of halakhah. The conclusion is that even after the heavenly voice, one who holds like Beit Shammai (both on the substantive issues and on the meta-rule of following majority, in which they say sharpness decides) may act like Beit Shammai. The heavenly voice went out for the sake of those who have no position on the mode of decision and who do not belong to Beit Shammai or hold like them. To them, the heavenly voice instructed to follow Beit Hillel.
There is also another possibility: that the rule “the law follows Beit Hillel” is not a binding rule but only guidance for one who has no position of his own. But one who holds like Beit Shammai must certainly act according to his understanding and not follow the heavenly voice. I will explain this further later in the column.
Another Proposal
If we look at the situation before the heavenly voice, the question arises: why was the dispute between the two schools not decided at all? What was unique about it relative to all other disputes? It seems this can be explained along Tosafot’s lines. There was a limbo in decision-making: Beit Hillel held that one should follow the majority of persons, while Beit Shammai held that one should follow the majority of wisdom (sharpness). Therefore the rule of following the majority could not decide the halakhic disputes between the schools. But even the meta-halakhic dispute itself (does majority determine or sharpness?) cannot be decided by a vote, for each side is entrenched in its meta-halakhic stance (see Column 195 on the “anti-paradox”). Beit Shammai will say we must follow sharpness and will thus remain with their position that sharpness decides, and the reverse for Beit Hillel. In such a situation there is justification for appealing to a heavenly voice.
Where there is no decision according to majority and there is no halakhic rule of decision, there the principle “It is not in heaven” does not apply. That principle only instructs us to use the halakhic decision rules and not to seek external substitutes. But when we have no halakhic way to decide, there one may—and perhaps must—use a heavenly voice.
The Difference Between the Proposals
This proposal seems very similar to the second answer in Tosafot, but it is not identical. In Tosafot it sounds like the prohibition to appeal to a heavenly voice applies only when that is to act against the rules of halakhah (for example, when the heavenly voice instructs us to go against the majority). According to my proposal, the prohibition to appeal to a heavenly voice applies only when there is a halakhic way out. When there is no halakhic way out, there is no prohibition. The indication of this difference is that the claim that “Beit Shammai were sharper” appears in Tosafot only as a side remark, to explain why there was a need to appeal to the heavenly voice. According to my proposal, however, that claim is essential to the very permissibility (the permission to heed a heavenly voice derived from the fact that we were in a limbo between majority and sharpness).
One could say that according to Tosafot there is an explanation that reconciles the decision for Beit Hillel with the rule “It is not in heaven”: the rule does not apply when the action is not against halakhah. But on my approach, no explanation is needed. Even if this rule does apply to the present case, we cannot remain stuck because of it, and therefore we act against it. In a place where a decision is needed, we will reach one even if it contradicts the relevant rule. Of course one can say this is itself an interpretation of the rule (i.e., that it does not apply in a limbo), and that is true—but it is nonetheless an interpretation we did not receive as part of the tradition alongside the rule itself; rather, we arrived at it by reasoning and necessity. Below we will see the significance of this distinction.
To sharpen this further: We saw that according to Tosafot’s second answer the rule “It is not in heaven” is sweeping. It applies in all situations, even where there is no conflict with halakhah. Therefore that answer holds that our baraita likely does not fit R. Yehoshua’s view. Now consider what R. Yehoshua himself would have done had he been in the situation described in Eruvin. Seemingly, he would have been stuck forever. Note: I am not asking whether, according to R. Yehoshua, one may follow Beit Shammai even after the heavenly voice; Tosafot explicitly write that one may. I am asking a more basic question: what would R. Yehoshua (as an observer) do with the halakhic limbo if he does not heed heavenly voices? It seems that in his view the dispute would remain undecided forever, for he does not heed heavenly voices. Lucky for us he was not there. But my claim is that even he himself, had he been present, would have accepted a similar decision and heeded the heavenly voice. It would be against the rule “It is not in heaven” (in his view), but there is no alternative. In such a case it is clear to me that even he would act contrary to the halakhic rule, even though in his view it applies here. With all due respect to rules, there are situations in which we must deviate from them.
One implication of this difference concerns determining a majority in a court. According to Tosafot’s proposal, the heavenly voice decided that the determining majority is the numerical majority and not sharpness. Now that this has been decided, we must conduct ourselves thus in every context. For example, when in a court there is a dispute between one sage’s view and the view of two other judges who are lesser than him in wisdom, we follow them and not him (for number overrides sharpness and wisdom). But in practice this matter is disputed among the halakhic authorities (see Column 69, and also 79, and for example here in Rabbi Yoel Amital’s article on majority in general, not only in court). According to those who hold that even today we follow the majority of wisdom and not number, it is unclear how they interpret our sugya. Seemingly, it here received an instruction to follow the numerical majority.
According to my proposal the conclusion is different. The fact that there was a tie between number and sharpness merely enabled the Sages there to resort to a heavenly voice, but the heavenly voice did not necessarily decide that one must follow the numerical majority. It decided that in the disputes between Beit Shammai and Beit Hillel the law follows Beit Hillel (and the reason given there in the Gemara does not address a decision of numerical majority versus sharpness). The question of number versus wisdom remains open, and each decisor may decide it according to his understanding. This allows us to read the sugya according to those opinions.
The Role of Rules
Perhaps we can learn from this the proper attitude toward halakhic rules in general. We saw a situation in which there is a halakhic rule that blocks us: “It is not in heaven.” When we find ourselves with no way out, there must be a way to overcome it and arrive at a decision. In such a case we determine that this rule does not apply to such situations and we deviate from it. As noted above, one can always claim that this is itself an interpretation of the rule—but that is an interpretation born of the predicament and not stated by the one who formulated the rule. The implication is that this is what can and should be done in other cases where we have a problem with some halakhic rule. We saw above the example of a situation in which R. Yehoshua would be in a limbo; I claimed that there he would deviate from the rule.
Consider another context. What happens when there is a halakhic rule that instructs us to a certain decision, but it is clear to us that this is not the correct decision for the case at hand? I want to argue that even then we should act against the rule (that is, interpret it such that it does not apply to this case—just as we did with “It is not in heaven”). Rules are not an impenetrable wall, and when circumstances demand it, we must deviate from them. To sharpen the matter, let us take a few examples.[2]
A first example concerns the disqualification of relatives as witnesses (see on this here). The Gemara, and the halakhic authorities following it (see for example Rambam, Laws of Testimony 13:15 and elsewhere), state that this is a “decree of Scripture,” meaning there is no reliability problem with close relatives as witnesses, for there is a presumption that a person does not sin for another’s sake; but the Torah decreed that we not accept their testimony for its own reasons. We do not sense the problem with this principle, for even if two relatives come to testify that Reuven murdered, at worst we will not punish him, and if need be perhaps we will punish him “not according to law.” In monetary law, one can even follow the judge’s impression (see Rambam, Sanhedrin 24:1 and 24:10), and therefore one may rule even on the basis of relatives.[3] Therefore most students do not appreciate the very great difficulty of this (non-)explanation for disqualifying relatives. But now think of a situation in which two valid witnesses convict a murderer, and then two relatives arrive and render them false witnesses (hazamah). Seemingly we cannot accept relatives, and therefore we will ignore the hazamah and execute the murderer. Note that the “renderers” are telling the truth, since there is only a scriptural decree not to accept their testimony as relatives. If so, we effectively know this person is not a murderer (the first witnesses are liars),[4] and nevertheless we must kill him. Such a ruling is unthinkable, and a court in such a case must certainly recuse itself and spare him from death. Is there a rule in halakhah that permits this? Is there a limitation on disqualifying relatives as witnesses? If there is—let it appear at once. It seems to me the meaning is that in such a case we must deviate from the rules.
Another example relates to rules of decision (see on this Columns 482 and 119). It is accepted that in disputes between Abaye and Rava the law follows Rava, except for six cases remembered by the mnemonic Ya’al Kegam (see Kiddushin 52a and parallels). Yet the Rambam in several contexts rules like Abaye against Rava in other disputes. For example, in the law of “Lo Titgodedu” the Rambam (Avodah Zarah 12:14) rules like Abaye, who forbids two courts in one city; and in “If one did it, it nevertheless takes effect,” in the view of several of his interpreters the Rambam (see commentaries to Laws of Sales 30:7 and Shabbat 23:15) rules like Abaye that an act performed against the Torah does in fact effect legal change.
How is it possible that the Rambam goes head-on against an explicit Talmudic rule of decision? The compilers of rules offered various qualifications, some of which are not clear or reasonable and also lack a clear source. They qualify the rule that the law follows Rava with all kinds of limitations in order to fit the Rambam’s rulings. The obvious question is: from where did the Rambam himself learn these hidden qualifications? How did he permit himself not to follow explicit Talmudic rules of decision? But according to what we have seen here, there is no need for any of this. If the Rambam had a reason to rule like Abaye in a given dispute—by his reasoning or by some sugya—he preferred that over the rule that the law follows Rava (this is essentially a kind of lex specialis consideration; see on this, for example, my responsum here). In those columns I tied this to the halakhic “rule” that “one does not learn from generalities, even where it says ‘except’ ” (see Eruvin 27a and parallels).
Perhaps we can broaden this and say that halakhic rules should be taken with a grain of salt, for they are approximations to the law and not its very definition. Just as rules of grammar only approximate correct speech (there are exceptions to every rule), but they do not define correct speech, so in a case in which it is clear that a rule does not lead to the correct conclusion, one may deviate from it. We will assume this is yet another exception—even if we have a detailed list of exceptions and this case does not appear among them (as with Ya’al Kegam).
We can perhaps expand the scope even further and argue that rules are only operating guidelines for situations in which I have no reasonable way to proceed by local judgment. But if I do have such a way, there is no need whatsoever to resort to rules. This is a more radical perspective. The rule is not only an approximation, and I do not even need to suspend it only in special predicaments; rather, the rule from the outset was intended only as a tool that assists us in making decisions when we have no other way to do so.[5] There is no problem in deviating from a halakhic rule when warranted, because the rule does not intend to be sweeping and absolute. This parallels precisely my proposal above regarding the rule “It is not in heaven.”
Perhaps this is how to understand the possibility of being lenient in a pressing circumstance (see on this my article on the meaning of leniencies and stringencies in halakhah), that is, to rely in such cases on a view that was not accepted in practice. Seemingly it is very difficult to justify this conduct, for if the law was decided like another view, then this is acting against halakhah because of a predicament—and we do not find such a thing (when there is no dispute, we do not act against the law even in pressing circumstances). But even if the law was not decided in our case, we still have rules for deciding doubts (a doubt in a biblical law—to be stringent; in a rabbinic law—to be lenient; and the like). If so, to choose a lenient view in a biblical doubt is to act against halakhah even where there is no clear ruling. How, then, is it permitted to do this in pressing circumstances?
According to my proposal here, the matter is more comprehensible. If I am in pressing circumstances, that itself permits me, halakhically, to choose a lenient view—that is, it gives me a way to decide the question before me. Now I am no longer in doubt, and therefore the rule that obligates me to be stringent in doubts no longer applies. Of course, one can say this only if one assumes that the rule to be stringent in biblical doubts was stated as an assisting rule for cases in which I have no other way to decide. But when I do have another way to decide, there the rule does not apply at all. In other words, the rule “a biblical doubt is decided stringently” is a rule that is applied last—only when all other avenues have been exhausted.
This is what I proposed above regarding “It is not in heaven.” It may be that it applies to the situation prevailing between Beit Hillel and Beit Shammai, but in a limbo there is no choice but to act against the rule. My proposal here is that this is so regarding all halakhic rules. There are circumstances in which we must deviate from them, and this need not be viewed as a special permit or a deviation from halakhah. This is halakhah itself. The rules are not the halakhah itself but at most an approximation to it, or default guidance when there is no other way out. This of course requires more thorough clarification and study—of kinds of rules and kinds of situations—and my purpose here is only to point to the general direction.
[1] See also the prologue to the third volume of the trilogy.
[2] I will not bring here the law of “a sin for the sake of Heaven,” for it is reasonable to say that such an act is not according to halakhah. I seek halakhic examples.
[3] This is my view. Most later authorities did not hold so. See on this my Migo pamphlet.
[4] Admittedly, hazamah is also a scriptural decree, but I showed in my article cited above that this cannot be understood literally; clearly the second set is in fact more credible than the first.
[5] See my responsum here for a discussion of the nature of rules of decision in the Talmud.
Discussion
This fits with the rule that the Beit Yosef rules according to the majority among Rambam, Rif, and Rosh, or the rule that Rabbi Ovadia ruled according to the Shulchan Arukh.
Just one note: you say regarding conspiring witnesses that they are speaking the truth, only that there is a scriptural decree here. That is not precise, because everything about accepting conspiring witnesses is itself puzzling (that is, that we accept their testimony completely and punish the first set, and do not treat their testimony as a doubt, in which case no one would be punished), and this itself can be regarded as a scriptural decree. So one can treat it as a scriptural decree that overrides a scriptural decree.
They are still no less than contradictory witnesses, so your point can still stand, although presumably one of the two sets is lying in any case.
Do you mean that this fits with their exceptions to the rule that they themselves established?
As for your question about conspiring witnesses, I hinted at it in note 4, where I referred to my article on the subject. There I dealt with it at length.
Indeed, I meant that the rules exist mainly in order to be broken.
As for conspiring witnesses, I did not notice the note. I accept that there is a rationale there; I tend toward the interpretation you gave of Rambam.
A question that has been nagging me for a long time is: to what extent did they judge in a technical way? That is, if according to the halakha on paper they are supposed to execute someone, but the judge has doubts, what do they do?
Of course there is the matter of Rabbi Tarfon and Rabbi Akiva, who say that no person would ever have been executed (which appears, incidentally, in tractate Makkot), but even about that the Gemara says that they rely on technical details.
It is also interesting that in this matter the criticism of them is that they increase bloodshedding; that is, regarding offenses between man and God, ostensibly there is no criticism of the method (they leave a lot of room to expound and receive reward).
But what really occupies me is what happens if all the technical details line up and the judges still have doubts about the truth of the testimony, for example. I do not know of sources that deal with this, if there are any.
First, there is the rule of a “deceptive case” (merumah), meaning that if a judge senses that despite the evidence this is not the truth, he may withdraw from the case. Of course I was speaking about something else. In my case, this is a situation where the halakha is clear and the facts are clear, but the result is problematic.
As for the criticism of R. Akiva and R. Tarfon, I do not think the intention is specifically bloodshed. They increase wrongdoing in Israel, and not necessarily murderers. I wrote here in the past about this issue, and explained that Rabban Gamliel was the head of the Sanhedrin and bore practical responsibility, whereas R. Akiva and R. Tarfon, who were not in the Sanhedrin, were scholars without practical responsibility. That is probably the root of the dispute.
1- As for the interpretation itself of R. Y’s words, “It is not in heaven,” I did not understand him to mean that this is learned from the verse. Rather, the basis of the rule is logical reasoning [just as they did not accept proof from the carob tree and the stream without a verse], and accordingly that is how they interpreted the verse (the practical upshot being that the verse contains only what the reasoning itself yields, and nothing beyond that).
2- According to your explanation of Tosafot, it is puzzling what benefit there is in a bat kol. That is, insofar as for Beit Shammai the bat kol is of no help, then it has no benefit at all, even for a person in doubt (who is not from either of these study houses), because one’s attitude toward it itself depends on the very position it comes to clarify.
3- I understood that even according to Tosafot there was never a possibility that superiority in sharpness would in principle nullify the rule to follow the majority. It is also obvious that one cannot say that whenever one side has an intellectual advantage, the rule of majority does not apply, because then we would never follow the majority, since who can say that the disputants are exactly equal in wisdom? (And if the majority are superior in wisdom, then in any case we would rule like them, and we would not need the rule of majority except where they are equal.)
The entire dispute between Beit Shammai and Beit Hillel revolves around the principle that majority is only a rule of practical conduct. Like all the other rules of decision and halakha, it cannot tell us what the truth is in the dispute before us, only how we are to decide and act in a doubtful matter. [For this purpose—even witnesses do not really clarify reality; it is only a rule of conduct to say that they do clarify it, as in Rambam’s language in Yesodei HaTorah: “Just as we were commanded to decide a case on the basis of two valid witnesses, even though it is possible that they testified falsely, since they are valid in our eyes we uphold them in their presumption of validity. And regarding these matters and others like them it is said, ‘The hidden things belong to the Lord our God, but the revealed things belong to us and to our children,’ and it is said, ‘Man sees what is before the eyes, but the Lord sees the heart.’”].
Another principle is that there is an essential advantage to one who knows the truth about the matter itself, such that even against the majority he must act according to his own view (just as one who knows that a certain piece is forbidden fat—even if a hundred testify that it is permitted fat, he does not listen to them). I will use your terminology: a first-order decision always takes precedence over a second-order decision. As Rambam writes in Hilkhot Mamrim, in a dispute of reasoning and interpretation it is not necessary that they be greater in wisdom and number.
Up to this point, as I understand it, things fit together with the suggestion you offered (“that one need not always follow the rules”). Only in my opinion this is not an exception to the rule at all, since the rule was never stated where it is known how to act, but only in a doubtful place. But in my opinion there is a level of ‘second-order’ knowledge that is equivalent to ‘first-order’ knowledge. For example, the reasonable person will react dismissively to conspiracy claims about the moon landing, as you yourself responded in Q&A in the past. And the dismissal is not just, “Leave me alone; you have failed to arouse my curiosity,” but, “You have failed to arouse any doubt in me.” Such knowledge is not merely a “rule of conduct”; it is an accepted way of arriving at a position on a given issue. And even if I have not investigated the matter, I will regard the view that there was a moon landing as a position that I accept as truth and as knowledge about reality (and as an analytic rather than synthetic position).
An example: on the question why there is an obligation in kabbalah not to dispute the Talmud, the Chazon Ish’s view is, “Because they were truly sages, and what are you compared to them….” In my opinion, analytically one cannot say that there is some sort of reasoning obligating us to heed their words even where we think they erred. Rather, the Chazon Ish himself assumes that one who recognizes their greatness would never allow himself to hold a position against their words (a point with which one can certainly disagree). So this is not merely a formal consideration (as in the view of R. Elchanan Wasserman) to obey their words, but a substantive one.
The same applies to the dispute of Beit Shammai and Beit Hillel: Beit Shammai regarded themselves as so much sharper that the words of Beit Hillel in the face of their own simply did not matter. And Beit Hillel did not accept their position (as shown by the fact that they did not hesitate to disagree with them). This leads to the question: how should the average person act? How is he to decide this question? There are no analytic tools to prove whether Beit Shammai really are not vastly superior to Beit Hillel, and in that sense this is a synthetic position. That is where the bat kol helps. For according to what I am saying, the reason we do not heed a bat kol is not because the Torah commanded us not to heed it, but because it is a second-order consideration and cannot decide a first-order consideration (the analytic is preferable to the synthetic, reason is preferable to faith, and so on). But where a first-order decision is impossible, then we accept a second-order decision.
According to this, it is also clear according to Tosafot that the appearance of the bat kol would help the ordinary person even according to their view, while for the disputants themselves it would not help, and they would still maintain their own view against Beit Hillel (since in every dispute there is indeed a first-order consideration, which is preferable to the bat kol’s second-order consideration). This also clarifies Tosafot’s words that Beit Shammai did not accept that one must follow the majority solely because they were sharper.
1. I understood it that way too. That is why I wrote this post—to show that it is not so.
2. Not true. I distinguished between two planes of discussion. A person can hold like Beit Shammai on the halakhic issue under discussion, but have no position on the question of which majority is decisive. Even apart from everything I wrote, you can see for yourself that Beit Shammai truly were not convinced, and Amoraim ruled in accordance with them. So how do you explain that? It is not specifically connected to my picture.
3. One follows the majority of people except where there is a clear superiority of wisdom over foolishness. That is why the rule of following the majority has significance. And in fact there are quite a few decisors who wrote that in a court what determines matters is the majority of wisdom, and it did not bother them that this would lead to a situation where we could not decide. Because it would not really lead there, as above.
Both witnesses and majority definitely do clarify reality. The sources you cited do not contain a shred of proof against this. Rather, that clarification needs a stamp of approval that it is sufficient. Two witnesses definitely clarify reality and are not merely a rule of conduct. But one might have said that perhaps five witnesses should be required, or perhaps one would suffice, and therefore the Torah determines that two are required and two suffice.
I did not understand the lengthy discussion about the connection to analyticity and syntheticity.
A1. You grounded the words of Hazal that the verses deal also with attaining Torah and not only with observance. But why not say that, indeed, decision is handed over to human beings, yet where there is revelation from heaven, that revelation prevails (not only when there is limbo; in a case like the Oven of Akhnai, the revelation in favor of Rabbi Eliezer should override human decision). It is not only that “it is not in heaven,” but surely it is also found in heaven.
A2. It seems obvious that Hazal have no authority to determine “it is not in heaven.” If I hear a trustworthy revelation from heaven and Hazal tell me to ignore that revelation, then surely I will ignore Hazal: if the master says one thing and the disciple another, whose words do we heed? At most Hazal can say that where there is no revelation one may rely on a sage, on reasoning, and the like, and not everything is governed solely by the laws of doubt.
Even if the Torah explicitly said that one does not heed a bat kol and that a prophet is no longer permitted to innovate anything, it still would not at all be clear that we should not heed a reliable bat kol (for in what way is it inferior to the Torah itself, if not in terms of reliability?). And now that this is only an interpretation, then the bat kol itself surely holds by a different interpretation of the Torah, so why should we not go with it? (Incidentally, there is also lex specialis in its favor.)
A3. (Here we go again.) If it is not in heaven, then what is the meaning of halakhic monism—that is, what defines the objective halakhic truth that you hold by (and in addition there is also some side rule, given monism, called autonomy)? If something is not the Torah of God, which is objective truth and is found in heaven, then what is the point of studying it apart from the technical knowledge of knowing what one has to do?
B. You wrote that in the case of Beit Hillel and Beit Shammai there was a problem (limbo), and therefore they bypassed the rule (“it is not in heaven”). Why is such indecision problematic? According to this, if today a bat kol were to emerge to decide between the Shakh and the Pri Hadash in some law, would we heed that bat kol? Or perhaps only in public matters such as conversion? One who believes that the Ari received revelations from Elijah—must he, in your view, decide like the Ari where there is a dispute in the revealed law?
C. Regarding Rambam, who ruled like Abaye contrary to the rule, you say there is no difficulty because perhaps he had some reasoning or side revelation. If there is such reasoning, “let it appear at once.” That reasoning would have to be powerful enough that we would think it likely that in all the other disputes (in which Rambam adhered to the rules of decision as a weaned child to its mother) he did not happen to have reasoning of similar force that ran counter to the rule. In other words, in any case one has to find something unique here in these isolated cases, and pushing the uniqueness off onto “reasoning” is no help, because one really has to find reasoning of uniquely strong force in these isolated cases—and only in them. The Amoraim could certainly, by their own reasoning, bypass a direct rule of decision established by Amoraim like themselves, and they in fact did so (as is explicit, for example, in the Gemara’s long discussion in Eruvin 46 about the force of personal rules of decision).
A. In the Gemara’s second answer, you interpreted a dispute between Rabbi Yehoshua and the baraita as to whether one heeds a bat kol (according to Rabbi Yehoshua, no), meaning whether there is a rule of “it is not in heaven” (according to Rabbi Yehoshua, yes). And you wrote that this is a dispute over whether, in practice, there is an obligation to rule like Beit Hillel (according to Rabbi Yehoshua, there is no such obligation), and you found this puzzling, since on the one hand the halakha follows Rabbi Yehoshua, while on the other hand there is indeed an obligation to rule like Beit Hillel.
Seemingly, the meaning in the Gemara is that the whole baraita is Rabbi Yehoshua, even after the bat kol. That is, Rabbi Yehoshua says the halakha is like Beit Hillel (because that is his own opinion), but nonetheless whoever wishes to act like Beit Shammai may do so—just as Rabbi Yehoshua said before the bat kol appeared. This is somewhat suggested by the Gemara’s wording: in the first answer it made separate ukimtot, “here … and here,” whereas in the second answer the formulation is different (I checked several other occurrences of “if you wish, say instead” in the Gemara, and there too they use the wording “here and here”).
B. Entirely tangential. Tosafot say at the beginning (about the Gemara’s first answer) that the bat kol in favor of Rabbi Eliezer is weaker than the bat kol in favor of Beit Hillel. They then ask: if so, how can the Gemara (in the second answer) rely on Rabbi Yehoshua, who does not heed the weaker bat kol of Rabbi Eliezer, in order to claim that Rabbi Yehoshua also does not heed the stronger bat kol of Beit Hillel? (For the proposal of a tanna, one needs grounding, not mere possibility.) And Tosafot answer that although Rabbi Yehoshua rejected a weak bat kol, his reasoning and formulation reject any bat kol in the world. Therefore the Gemara (in all its answers) maintains that Rabbi Yehoshua does not heed a bat kol at all. Is that how you understand Tosafot? Or do you read them differently? (A certain wording made me wonder whether you might have another interpretation.)
C. I found (though I have not looked at it inside) that in Yevamot 14, the opinion that “Beit Shammai acted in accordance with their own view” even after the bat kol is the view of Rabbi Yehoshua, who does not heed a bat kol at all.
A1. I did not understand. When there is revelation, must/may one obey it? Then when is it forbidden? What novelty remains in “it is not in heaven”? When heaven says nothing?
A2. Hazal did not establish this; they learned it from the Torah. That is precisely what I tried to show.
A3. There is one halakhic truth, and it is the Holy One’s intention. Each of us must try to hit upon it, and only one of the disputants succeeds in doing so. And nevertheless, there is an obligation to rule autonomously, and it overrides the value of truth.
B. I explained this in the prologue to the third book. There was concern for the loss of the people and the Torah as a whole. For the first time there was a split of the public into two parts, two groups each holding by a different total Mishnah, which did not speak to one another. Two blocs. This is not like disputes over one halakhic issue or another. Especially when the subjects are ones that do require a practical ruling for the public. All the more so since this occurred within a framework that had not yet fully recognized the phenomenon of dispute and did not know how to cope with it.
C. It need not be reasoning. It may also be by force of a parallel sugya. In any case, in my opinion this is the reasonable explanation for Rambam’s exceptions.
A. That may be possible, but it really does not seem to me to be the plain meaning. Certainly not in Tosafot.
B. That is how I understood it too.
C. There is a parallel sugya there, and that is indeed one of the possibilities there as well.
Rabbi Zaini reached a similar conclusion: the rules are the last resort only if there is no other way to decide.
2- What I was trying to say (more expansively in part 3 of what I wrote) is that in my opinion the Amoraim did not rule against the bat kol; rather, they ruled on the cases themselves. That is, since the bat kol is a rule of conduct for one who lacks knowledge, just as the rule of majority applies where there is lack of knowledge, every majority decision is relevant only where there is doubt—that is, where a person has no position on the matter before him. But where he has a position on the matter itself, then he has no rule requiring him to follow the majority (just as Rambam ruled in Mamrim that in a dispute of interpretation the court need not be greater in wisdom or number).
(3-) If we go this way, then even Beit Shammai agree that a person “who has not learned the sugya” and has no position on the matter must follow the bat kol. And the Amoraim who followed Beit Shammai did so because they agreed with them on the matter itself; it is not relevant to decide by means of a bat kol, which is a second-order decision, in a case where a person has a clear position on the matter before him [for then he possesses a first-order decision].
To this I added another layer: it is possible that Beit Shammai themselves disagreed with Beit Hillel from the outset and did not think that anyone else was obligated to heed Beit Hillel even though the majority was with them, since in their view they were far sharper than Beit Hillel—and therefore Beit Hillel’s words do not count against theirs. Here I added that this claim, on Beit Shammai’s view, is not only a consideration to ‘act’ like them, but that the reasonable person has grounds to assume they are right in this claim without having to enter into the sugya itself (as with the moon landing). Consequently, the ordinary person as well has a first-order consideration to assume that Beit Shammai are right, and there is no place for second-order considerations intended for the doubtful person.
Here a subtle point was hiding that I did not manage to formulate well at first: seemingly, according to the last argument—that their sharpness is so great that one can rely on it and thereby “know,” and therefore there is no room for rules of “conduct”—once again the bat kol is of no use. For on their view, in every dispute every person has a conception [at the level of knowledge] that the truth is like Beit Shammai. So why did it emerge at all?
But it seems that in truth the ordinary person in the street would still have to heed the bat kol [and that is why it emerged], even according to Beit Shammai.
For the reason Beit Shammai argued that one should follow them against the majority is based first of all on the assumption that they are much sharper than Beit Hillel. But Beit Hillel thought they were fully worthy to be interlocutors of Beit Shammai, and that the gaps did not justify nullifying their view before Beit Shammai’s. So the question that needs to be discussed is: what really is the level of Beit Shammai’s sharpness relative to Beit Hillel’s (and correspondingly—should we follow the sharper side or the majority)?
Such a dispute could not be resolved analytically in a research-like way, and the reason is simple: to the extent that a person claims he is much smarter than I am and therefore I cannot understand him, I have no way to refute him. Except that in the average case I will simply understand that I have no reason to assume he is really saying things I fail to grasp because of my own limited mind; rather, he is talking nonsense (a person is instinctively subject to his own intellectual autonomy). But in a case where I hear a physics professor speaking about quantum theory, although it sounds somewhere between strange and bizarre, from the outset—even before hearing proof or explanation—I assume that it is bizarre for me, but at most strange, yet true and even brilliant for one who works in the field. Likewise, a little child full of very important insights about life… still understands that there is a chance his father knows something about this life that he himself does not yet know (and I added that, to my understanding, this was the Chazon Ish’s view regarding Hazal, and therefore one does not dispute the Talmud).
So too with Beit Shammai vis-à-vis Beit Hillel: since Beit Shammai are sharper (in everyone’s view), there is no analytic way to prove that they are wrong in their very claim that they are so sharp that one should not take Beit Hillel’s view into account. Nor is there any way to prove that Beit Hillel are wrong, since in fact they answer back vigorously and are no pushovers themselves. But on the other hand, perhaps if we were as sharp as Beit Shammai, we would understand that Beit Hillel simply do not grasp the depth of Beit Shammai’s words.
Thus the position of the observer—the ordinary person—with respect to Beit Shammai’s sharpness is a synthetic position, in the sense that this position is the starting point of the discourse and that claim cannot be clarified from within the discourse itself. (Whereas Beit Hillel themselves relied on their own intellectual autonomy, and so did Beit Shammai. But the observer is baffled and has no tools to prefer one claim over the other.)
In such a place we have no internal clarification left, and we must turn to an external means to clarify whether Beit Hillel are fit to dispute Beit Shammai. And indeed the bat kol emerged and said that they are fit [and therefore the halakha is like them, since we follow the majority].
And Beit Shammai too understand that they themselves are subject to their own opinion, because that is what reason requires. But the man in the street has no such subordination (he does not know the sugya at all, and he also does not “know” what is obvious to them—that they are a level above Beit Hillel), and he must follow the bat kol.
4* I do not want to divert the discussion, but it is as clear as day from the language of Rambam that I cited that witnesses are not really clarification; rather, the Torah merely said to act as though the matter has been clarified. “And it is possible that he may perform a sign or wonder and yet not be a prophet, and this sign may have some hidden trick in it; nevertheless we are commanded to heed him, since he is a great and wise man and fit for prophecy, [therefore] we uphold him in his presumption—because thus we were commanded. Just as we were commanded to decide a case on the basis of two valid witnesses, even though it is possible that they testified falsely, since they are valid in our eyes we uphold them in their validity. And concerning these matters and others like them it is said, ‘The hidden things belong to the Lord our God, but the revealed things belong to us and to our children,’ and it is said, ‘Man sees what is before the eyes, but the Lord sees the heart.’” — Yesodei HaTorah, end of chapter 7. [In truth one does not need Rambam to understand that hearing is not like seeing. There is only some probabilistic threshold here, but certainly not at the level of knowledge.]
I did not want to note this from the outset, but a direct implication of the fact that this is only a rule of conduct is that where two disqualifying witnesses come and they are relatives, we would not say that this is a “deceptive case.” It is certainly true that it is more plausible to believe the disqualifying witnesses than the disqualified ones, but in the end the testimony of the disqualifying witnesses is like all other testimony in this respect: there is no real clarification of reality in their testimony itself, only if the Torah grants it force to establish clarification on the basis of their testimony. And to relatives the Torah did not grant this force. So here we have a “probability”—that justice is with the disqualified witnesses—against a lower probability—that the truth is with the disqualifying witnesses. But the Torah after all treated דווקא the witnesses before us who were disqualified as clarifying. So this is not a question of probability against lower probability, but probability against clarification.
A1. The novelty is that one may rely on human decision by means of reasoning, and that man has the power to understand. Otherwise, we would have to use the laws of doubt on every matter without end.
A2. Hazal went to the extreme that even if one finds someone who goes up to heaven for us, takes it for us, and lets us hear it, we would pay him no heed. One can very comfortably interpret the Torah, as above, to mean that where one does not find such a person, one can still manage. This idea of “it is not in heaven” is so absurd and detached in my eyes that I find it hard to believe anyone really thinks so.
2-3. Then you are returning to my formulation. The rule is valid but is not intrinsically binding, and therefore when I have a different position there is no need to follow it. This is not connected to the question whether majority is a rule of conduct or a clarification. If that is what you call conduct, then it is only a change of name. I do not see what the dispute is about.
The question of how one decides who is sharper than whom is of course a good one, but the fact is that the Gemara and Tosafot did determine that Beit Shammai are sharper. In other words, there is a way to determine this. When one does not know, one returns to the ordinary laws of majority according to all views.
4. As for Rambam, you are of course mistaken, and I have already explained this. You are confusing the claim that the testimony of two witnesses is not certain with the claim that this is an arbitrary rule of conduct.
As for conspiring witnesses, see my article that I referred you to.
* According to my approach, the rules were not broken; they were not stated for such a case.
* The whole point of the lengthy discussion is to explain that Tosafot too did not mean to say that a general question was decided here, but rather a particular question about reality.
* Of course a person has ways of seeing who is sharper than his fellow. But only comparatively, this one relative to that one. What cannot be defined is the gap between them—whether it is such as to justify not attributing importance to the opinion of the dissenters. (This is a question of quality; it seems to me one could compare it to what you brought from the book about Zen and the motorcycle—that one cannot define it, but one can certainly see it.)
* As for witnesses, I agree that it is more reasonable to assume the truth is with them, but certainly they do not raise our view of reality to the level of knowledge. It does not come close to the level of certainty like the certainty that the Twin Towers fell, that the Americans landed on the moon, and the like.
Rambam compares them to accepting the words of a prophet, where he writes that magicians too can do some trick to predict the future, and nevertheless we are to accept his words; so too with witnesses. His language too—“we were commanded to decide the case,” “the hidden things belong to the Lord”—shows what sort of “certainty” Rambam attributes to witnesses.
As I write this, I think it is possible that everything regarding witnesses is also about a synthetic position…🤦♂️😉
With God’s help, Friday eve of Vayelekh, year 3
As best I recall, ruling in accordance with the minority view in pressing circumstances applies specifically to rabbinic matters and not to Torah-law matters (where doubt is treated stringently).
Regards,
Yifa"or
Absolutely not. If it is a rabbinic doubt, then one does not need pressing circumstances. Perhaps you mean that there is an individual versus the majority, and in principle the halakha follows the majority, but in rabbinic matters one may follow the individual view. But if that is what you mean, then what practical difference does it make that rabbinic doubt is lenient? After all, this is not a situation of doubt.
On looking again, I saw that Rabbi Shilat brought a dispute about this here: https://www.yeshiva.org.il/midrash/24918
And in my opinion it is obvious that one follows the lenient view even in Torah-law matters, at least in a case of great necessity. And so is the language of Rema, Choshen Mishpat 25:2, in the name of Rashba:
“If it is a ruling in matters of prohibition and permission, and it concerns a Torah prohibition—one should be stringent; and if it is a rabbinic matter—one should follow the lenient view. This applies specifically when the two disputants are equal, but one does not rely on the words of a lesser authority against the words of one greater than him in wisdom and number, even in pressing circumstances, unless there is also major loss. And likewise, if it is an individual against the majority, one follows the majority everywhere.”
We see that he made no distinction between rabbinic and Torah-law matters.
However, the Rema writes in the introduction to Torat Hattat that he never ruled leniently in something that is prohibited by law. See my article, “On Leniency and Stringency.”
I did not understand all the lengthy discussion, but it is clear to me that witnesses are not a state of certain knowledge
1. I assume you do not accept as historical fact that a bat kol literally went forth. How do you understand it? Is it merely the creation of a myth after the fact in order to decide a dispute that there was no other way to decide? Did they lie?
2. Why do we need rules of decision in halakha at all—rules that the halakha follows X rather than Y—instead of discussing the merits of the arguments in each sugya?
1. Indeed, I do not think this is a factual description. As Rabbi Margaliot wrote in the introduction to his edition of Responsa from Heaven regarding the Raavad’s words, “The holy spirit appeared in our study hall.”
There was a feeling (an intuition) there that a decision had to be made, and perhaps it even indicated how it was right to decide. The mythical description is nothing but a tale or myth that accompanies that decision. A myth is not a lie but a genre for conveying messages. Did the Raavad lie? Certainly not. Especially since even in the Bavli and the Yerushalmi we find discussions of “What is a bat kol like?”, and the answers are exactly of this sort and not anything involving actual heavenly voices coming out of the sky. Coincidences and attentiveness to one’s surroundings.
2. Just as it was necessary to write down the Oral Torah, the Mishnah, and the Gemara. The feeling was that there was no avoiding it, and one had to establish a framework for discussions. Moreover, I have written more than once that in my view the rules do not replace substantive discussion. They only instruct us what to do when we do not have a substantive conclusion. That is why Rambam ruled like Abaye in additional places beyond YAL KGM, and why the Gemara says that one does not learn from general rules even in a place where an exception was stated. Of course, the rule itself rests on the assumption that one side is usually closer to the truth. Thus the halakha follows Shmuel in monetary law against Rav, and in ritual prohibitions it follows Rav against Shmuel, because that was where their expertise lay. That does not mean it will always lead to the truth, but if one has to set a rule, it makes sense to set it that way.
1. If so, then your whole discussion here about “It is not in heaven” needs to be explained מחדש; it is a legitimate intuition just like all the other intuitions we use in discussions.
I did not understand a thing.
Adding: Why is the halakha like Beit Hillel if Beit Shammai are sharper?
Because Beit Hillel are more respectful, so they also consider the opinion that disagrees with them, and then decide according to the truth and not only according to their own outlook.