Q&A: The Talmud’s Attitude Toward the Difference Between Rabbinic and Torah-Level Law
The Talmud’s Attitude Toward the Difference Between Rabbinic and Torah-Level Law
Question
I have a strange feeling about this, though not a very serious one, and maybe you have some way to calm it down—if it even needs calming.
There are at least two major disputes about whether a known prohibition is Torah-level or rabbinic: the dispute about a Torah-level doubt, and the dispute about the Sabbatical year nowadays.
These are disputes that have been open for hundreds of years and have all kinds of strange and varied implications. And despite that, there is no total proof from the Talmud for either side that settles the argument.
What is special about these two disputes is that presumably hundreds of outstanding scholars have already milked every possible drop of evidence out of the Talmud and combed through the entire Talmud back and forth with X-ray combs for them. And lo and behold, every position still manages to work out.
This is not a dispute about some local analytical detail, but a simple and general dispute. What is surprising, first, is how the Talmud itself did not bother to address it explicitly. And second, if for the amoraim one side was obvious, then how is that not reflected unambiguously? If the Talmud does not decide questions like these, that raises doubts about its real decisiveness regarding other things too. That is, if there had been a Maimonides who said the opposite, people would still have managed to line up the whole Talmud accordingly—flag-bearer, sack, instead of “attention, forward march.”
And after all, it is clear that the Talmud does care about distinguishing between Torah-level law and rabbinic law.
Does this itch? Or is it natural?
Answer
It does not itch me in the least. The Talmud was not meant to decide every point. On the contrary, its structure makes it clear that it was not meant to decide, but to document give-and-take.
I do not understand why from this you conclude that it is not decisive on any issue. What has a determination, has one; and what does not, does not. And in general, what is the logic or point of discussing a priori in some sweeping way whether the Talmud is decisive or not?!
Because this is a simple, major dispute with lots of implications, not some local issue. If I had a shekel for every time I saw something hung on one of these disputes, I could have financed Netanyahu’s legal defense and still had enough left over for ice cream. And still people manage to make all the Talmudic passages work out. This is not a dispute that is somehow independent of what the Talmud says, where it would be obvious that the Talmud would not decide it; rather, it is something where I would have expected a priori that they definitely, definitely should be able to decide it, because for the amoraim one side must have been obvious (otherwise they would have had to bring a dispute on the subject), and nevertheless by some miracle that is not reflected unambiguously anywhere. If they cannot manage it here, then with enough effort they could show that on any floor at all you can make the Talmud dance. Honestly, I do not understand from your answer why this does not bother you.