Q&A: Questions about knowledge, the place of the Oral Torah in matters of reasoning, and why the Torah intervenes in legitimate agreements between people such as the laws of bailees
Questions about knowledge, the place of the Oral Torah in matters of reasoning, and why the Torah intervenes in legitimate agreements between people such as the laws of bailees
Question
Greetings and blessings, and a happy new year.
A question about the knowledge possessed by Torah sages: the rabbinic view (as opposed to the Karaite one) says that the Written Torah was given together with the Oral Torah; what Moses was commanded to write, he wrote, and what he was not, he transmitted through oral tradition. See Maimonides in his introduction to the Mishnah. So we have here two parallel traditions: the tradition of the Written Torah, transmitted with textual precision, and the tradition of the Oral Torah, which is more dynamic and, by its very nature as an oral Torah, depends on the judgment—or one might say the consciousness—of the sage who transmits it. (It is important to stress that when we speak of the Oral Torah, we are not talking about closed and absolute sentences like, for example, “Honor your father and your mother,” where the only difference from the Written Torah is that they were not written in the Torah but are passed down orally. Rather, we are speaking of laws and traditions that are not textually fixed, but of ideas and many laws that are transmitted from generation to generation and, necessarily and by their very nature, are the product of a sage’s mind. The question is: what exactly is this Torah, and what counts as Torah and what does not? Embedded in this is also the question: what are the sources of knowledge on which the sage relies? Does he rely on tradition for everything? On tradition only for the principles? Or on innovations of his own.)
To explain the question, let us look at the well-known Mishnah about two people holding a cloak. This is a classic social situation, where two people dispute which of them picked up the lost object first. This is clearly a problem that can arise in any human society and requires a solution. The halakhic ruling of the Mishnah determines that if one says, “It is entirely mine,” and the other says, “It is entirely mine,” “they divide it, and this one swears that he has no less than half in it, and that one swears that he has no less than half in it.” As is well known, the Mishnah is the central book of the Oral Torah, and the law of two people holding, as written in this particular Mishnah, is studied by Torah learners for many weeks, and that itself is the Torah study of those learners.
So the question is: what exactly is the “Torah” in this Mishnah? After all, we are dealing here with a legal dilemma discussed through legal reasoning that tries to reach a fair decision between two people.
Is it the fact that the passage is based on our desire to give the money to its “true” owner—which is apparently connected to the prohibition “do not steal” or to the commandment of returning lost property—that makes every discussion of a monetary issue a discussion of Torah? Is there, within the commandment “do not steal,” recognition of private property, and is that what makes discussion of every monetary question into Torah? (Another question: does the commandment “do not steal” contain a principled statement about private property? From a halakhic standpoint, could a halakhic society not be communist? Does communism contradict the commandment “do not steal”? Obviously, the Jewish halakhic rulings throughout the generations were not communist in style, because the governing powers and the conception of reality were not communist. But the question is whether, inherently, there is no room for a communist economy according to Judaism.)
And returning to the topic of “two people holding”: the passage discusses the status of the one in presumptive possession as opposed to the one who is physically holding it; what force physical possession has; and what the relation is to the prior owner, if there is one. What is the difference between the case of two people holding and the case of “that boat,” where the ruling is “whoever is stronger prevails”? And what is the difference between “money lying in doubt” and our case? Looking at the whole passage, we encounter sevarot—that is, logical arguments. We are therefore dealing with judgments of reason that, on the face of it, are the product of the reasoning of the sages who make them. The names—Sumchus, the Rabbis, Rabbi Yose, Rav Pappa, Rabbah—and the concepts—“what did the swindler lose,” “they divide,” “whoever is stronger prevails,” “a direct monetary claim,” automatically and rightly sound like voices from the Mishnah and Talmud. But if we try to imagine the arguments without the names of the sages of the Mishnah and Talmud, would other arguments arise? Seemingly, a logical argument is a logical argument. Even if we assume that other arguments and different halakhic rulings would arise, what makes the discussion and the halakhic ruling into “Torah”? Why is Sumchus’s reasoning, who rules that they divide because in his view the doubtful situation requires division, Torah; while the Rabbis, who rule that “the burden of proof rests on the claimant,” because in their view actual possession outweighs the doubtful situation—their words too are Torah? Why? What makes their words in the passage words of Torah? Were the logical arguments transmitted by tradition from Moses our teacher? Is the halakha itself (which, as noted, is disputed) part of the Oral Torah tradition from Moses our teacher? Did God tell Moses the principles of the halakha? If so, then the principles are Torah, and the details are only logical halakhic derivatives. So why is every discussion of logic and reasoning considered Torah? In any case, if there are rules that are the Oral Torah, which need to be learned, then where are they? What are the principles that are the Torah itself?
The question in another form: why do the commandments of the Torah deal with the laws governing agreements between people? For example, the Torah’s section on bailees. What place does the Torah have in determining the degree of liability of a bailee in an unspecified arrangement? (After all, if they stipulate that a paid bailee will not be liable for theft or loss, the stipulation stands. And according to the second answer in the Talmud, this does not depend on stipulating against what is written in the Torah, because the Torah established its rule only for the default case; but when they stipulate otherwise, the Torah did not speak.) And the difficulty is: what place does the Torah have here? Does the Torah come to regulate the rental contract in a case of vagueness, where they did not make an explicit detailed agreement between them? (Of course one can say: the fact is that the Creator of the world, the Giver of the Torah, determined what an unspecified contract between an owner and a bailee includes. Apparently that really is the Torah’s role. But my question is precisely about that: why? Why does this belong to the commandments of the Torah? This is a private contract between human beings—owner and bailee. On the face of it, this feels like unnecessary intervention in a contract between people, something that should not be included at all among the commandments. To clarify: the question is not based on the assumption that the Torah should not determine the civil norms of those who received it. No. The question is that even if the Torah indeed determines civil norms, one can understand the commandments and laws of “do not steal,” “do not wrong one another,” the laws of overcharging, the laws of damages (many of which contain innovative rules, such as in which place one is liable in private property or public property, half-damages for goring and for pebbles, the innovative laws of a pit, whether by its vapor or by impact, etc.), and the laws of returning lost property—but with the laws of bailees it is hard to understand why this belongs to Torah law.
Answer
Dear R. M.,
You assume that the Oral Torah was given to Moses as we know it today. That is really not plausible. It is quite clear that what was given was a few basic tools (the hermeneutical principles in some form, explanations of words, and perhaps a few other laws given to Moses at Sinai and products of supportive derivation—and even those not all of them. There are supportive derivations that come to support a law created in later generations and not at Sinai. See, for example, the Netziv in Kedmat Ha-Emek to the She’iltot on the distinction between “it is learned by tradition” and “a law given to Moses at Sinai,” according to Maimonides as opposed to Rashi). I discussed this at length in the second book in the Talmudic Logic series, which deals with the hermeneutical principles of general and particular. There one can even trace fairly well the process of conceptualization and specification of what was given at Sinai.
Therefore Maimonides too explicitly wrote that what was given at Sinai was only a few principles, and everything else is a later development by Torah sages throughout the generations.
The question of what they rely on (in expansions beyond what reached them): it is quite clear that they rely on their intellect and interpretive reasoning. Are they always right? Definitely not. Do they have formal authority (such that we must accept their words even if they are not right)? In certain cases, yes. With the Sanhedrin there is “do not deviate” (lo tasur)—though, as is well known, the opinions are divided about the commandment to heed the words of the sages; see the beginning of tractate Horayot and much more. Regarding the Talmud, all the halakhic decisors wrote that it has authority like the Sanhedrin (apparently by something like “they accepted it upon themselves”; see R. S. Fisher, Beit Yishai—Derashot, sec. 15, whose source, as is well known, is Rabbi Kook, and characteristically he does not say the awesome name explicitly). Whoever came after them has no formal authority, though there is substantive authority (if I assume it is more likely that he is right, there is certainly justification to heed him—at least if I am uncertain or have not reached my own ruling. There is also a value of autonomy, to rule according to my own view—see my article on my site, “Autonomy and Authority in Halakhic Ruling”).
Regarding the example you brought from two people holding, and all similar cases (for example, almost all of tractate Bava Batra, which as is well known is a tractate with almost no verses): in my understanding, this is an attempt to interpret the Torah’s law regarding returning lost property, as well as the laws of evidence in a religious court (“judge your fellow justly”). The interpretation, as noted, is by reasoning; but as long as it is an interpretation of Torah law, it is Torah. True, if these are opinions of sages who have no formal authority (the post-Talmudic sages), then it really is not binding on someone who disagrees, as above. That is of course true for all the distinctions in the laws at the opening chapter of Bava Metzia and the third chapter of Bava Batra (“judicial discretion,” “whoever is stronger prevails,” “they divide,” “the burden of proof rests on the claimant,” “let it remain unresolved,” and so on).
This is unlike the aggadic statements of the Sages, which in my view are not interpretation of anything, but moral values and human conduct, or even Torah outlook; and all of these are not interpretation but thought created by the sages. Therefore, in my opinion, this is indeed not Torah, and in my view one should not recite the blessing over Torah study for it. In a number of places, however, I have defined this as Torah in the person, not in the object—but such a status also applies to Kant and to any other thinker you happen to like.
Regarding the question whether the halakha could have been communist: definitely yes, within the constraints imposed by the Torah. The sages’ reasoning throughout the generations was that communism was probably not a correct system. I have already written more than once that the assumption that every value-position can be found in the Torah is absurd. On the contrary: the Torah’s positions are created by people who insert their own reasoning as interpretation of its laws. This is not criticism but a factual description, in my understanding. Therefore, even if I am bound by the Talmudic interpretation for halakha, that does not mean that their meta-halakhic positions bind me. I can be a communist and obey only the laws (the non-communist ones) that were explicitly established in the Talmud—and also choose positions that fit this outlook better. In everything else I am permitted, and in fact required, to formulate a value-position according to my own understanding, just as the sages of the Talmud and the medieval authorities themselves did. The Talmud has no authority with respect to general value-positions at all, so long as their basis is the thought of the Talmudic sages and not the Torah itself (without interpretation). The interpretation binds only with respect to specific laws or direct determinations of the Talmudic sages, not what may be inferred from their words.
Regarding the Torah’s dealing with the laws of bailees and agreements (contracts), especially against the background of Mishnah Bava Metzia 93, this is discussed at length in my article on duties and rights. Take it from there:
https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%91%D7%99%D7%9F-%D7%94%D7%98%D7%A8%D7%99%D7%98%D7%95%D7%A8%D7%99%D7%94-%D7%A9%D7%9C%D7%99-%D7%9C%D7%98%D7%A8%D7%99%D7%98%D7%95%D7%A8%D7%99%D7%94-%D7%A9%D7%9C-%D7%94%D7%96%D7%95%D7%9C%D7%AA-%D7%A2
By the way, I wrote here in the past that the laws of communal conduct that entered the Shulchan Arukh from the responsa have no binding force and are not halakha. They are the product of a historical accident. See briefly at the end of column 164.
Discussion on Answer
Joyous festival.
The Torah was given subject to Israel and its sages. A text without interpretation has no meaning. Any interpretation given to the text is Torah, because it reveals what is in it, at least in the interpreter’s eyes. That does not mean the interpreter is necessarily right, but from his perspective this is the Torah and this is what it says to him.
And indeed there is no difference between one person’s interpretation and another’s, even if one is a Tanna and the other is a non-Jewish philosopher. The question is what the correct interpretation is in your eyes, and from your perspective that is what the Torah says. If in your opinion judging justly is according to Kant’s doctrine, then from your perspective that is the interpretation of the verse “judge your fellow justly.”
Up to here these are general statements, and in my opinion entirely correct. From this point on there is the question of authority, which is a technical question. The Sanhedrin and the sages of the Talmud have authority, and therefore the interpretations they gave are the binding interpretations, in practice. That does not mean they are right. It is certainly possible that Kant is the one who is right, but this is the binding interpretation. Therefore, when you study Torah with Kant’s interpretations, you are studying Torah just as when you study it with the Talmudic interpretation, so long as that truly seems to you to be a genuine interpretation. But in practice you are obligated to act in accordance with the sages of the Talmud and the various Sanhedrins. It is not more Torah than Kant; it is more halakha than Kant.
From here you can understand the separation I make between practical halakha and the intellectual foundation underlying it. Indeed, at the base of every law sits some principled reasoning, and seemingly one cannot rule that way in practice without adopting its basis. But if my commitment to the sages of the Talmud is only to their halakhic rulings, while I do not assume that they necessarily got it right (that is, that this is truly the Torah’s intent), then the way is open for me to adopt their ruling without adopting the intellectual framework that underlies it. Thus, for example, I can be a capitalist because that is what I believe, but in practice I will have to behave like a socialist at those specific points where the Talmud so ruled in practice.
All this was said about the halakhic part of the Torah. In the realm of thought there is, in my opinion, no difference at all, because there is no authority there. What determines things is what is true, in your eyes. And I would say the same regarding the political world. The laws of the Knesset bind me as a citizen of the state. Does it follow that I am obligated to think like the members of Knesset who enacted the law? If there is a socialist majority in the Knesset, is it forbidden for me, as a law-abiding citizen, to be a capitalist and live that way in my private life? I will have to act according to the law at the specific points it determined, but beyond that I do not see myself as bound by the socialist outlook that underlies it. By the way, in legal studies too one can continue the analogy and say that as a jurist I will study what the Knesset enacted, but at the same time I will formulate general legal conceptions according to the best of my understanding, and of course I will also use foreign sources.
Greetings and blessings,
You answer that aside from the main rules, the Talmudic topics are the product of the sages’ reasoning. That is also my assumption, and that is exactly why I asked: what makes this Torah?
The answer you give, if I understood correctly, is: since there is a commandment of “judge your fellow justly,” or other commandments, and the sages are trying through their reasoning to understand what justice is, that is Torah.
But my difficulty is with the leap: from a broad and basic root like “judge your fellow justly,” or “do not steal,” or returning lost property—which are explicit commandments—and from that point on, every logical judgment about what ownership is (whether presumptive possession, prior ownership, physical holding, etc.) is the sage’s own reasoning. So in what sense can we claim that this is Torah? That is how it seemed to him by reasoning? Fine—but in what way is he better than any other thinker? In your answer you say that authority was given to the Sanhedrin (and the like), but my question is: what is the nature of this authority that makes it Torah, if all it contains is one kind of reasoning or another, where one person thinks presumptive possession is stronger and another thinks prior ownership is stronger, etc.? In the end it is like any court system that aims and rules according to human reasoning. What makes it a matter of Torah? Is it the fact that, in his heart, he intends to fulfill the commandment “judge your fellow justly”?
B. Within your words you write (and perhaps by this you tried to answer my first question) that our obligation to heed the sages is about the laws themselves and not about their meta-halakhic outlook. And that seems difficult to me. After all, everything stems from the general conception. It is like saying: I accept for practical law all the ramifications of the political right, but my understanding of reality is like that of the radical left… If you think the settlements are the source of all problems, you should not be encouraging building in them… It is almost self-evident that if you hold certain meta-halakhic principles, they affect the details of the laws. If so, if by induction from binding legal details a certain outlook emerges, how can I not be bound by the overall outlook that arises from them? I would be glad for elaboration.
Happy holiday.