Q&A: Tendentious Halakhic Ruling
Tendentious Halakhic Ruling
Question
Following this response https://mikyab.net/posts/74707#comment-58204 and my comment there.
Rami Reiner, in his book on Rabbeinu Tam, chapter 9 (not 11), found a thought-provoking case, as follows. Admittedly, the aforementioned author is apparently very fond of sensations, even where in my opinion anyone who looks carefully will see that there’s neither bear nor tomato there at all—for example: Rabbeinu Tam relies on the paytan Kalir against the Talmud! Rabbeinu Tam interprets a tannaitic halakha on his own against the interpretation in the Talmud! and so on. But as you like to say, just because someone is paranoid doesn’t mean they aren’t being chased.
The issue is when the husband acquires rights to his wife’s dowry (Ketubot 47a, Sefer HaYashar, novellae 34). Rashi explains that there is a dispute among the tanna’im whether the husband acquires rights to the dowry already from betrothal, and as a practical halakhic ruling apparently he does not; but according to everyone he does acquire it upon marriage. Rabbeinu Tam explains that there is a dispute among the tanna’im whether the husband acquires rights to the dowry from marriage onward (when he has not yet taken possession of the dowry), and as a practical halakhic ruling he does not; and according to everyone he does not acquire it at betrothal. Therefore Rabbeinu Tam rules that a husband does not acquire rights to the dowry even after marriage unless it has already come into his possession.
In addition, Rabbeinu Tam instituted the “dowry enactment,” according to which if the woman dies childless within a year, the husband must return whatever remains of the dowry. [From what Reiner brings, and from what I tried to check, it seems that all the medieval authorities go with Rashi’s approach, except for the Ra’avad? no, the Razah, who goes with Rabbeinu Tam (Reiner adds, citing Professor Ta-Shma: characteristically) without explaining why.]
So Rabbeinu Tam made two moves here “for the benefit of the woman’s family”: (1) he interpreted the Talmud so that by strict law, even in marriage the husband does not acquire the dowry unless it has already come into his possession. (2) Even after the dowry had come into the husband’s possession, Rabbeinu Tam enacted that the husband must return the dowry if the wife died without a child within a year. And Tosafot records that Rabbeinu Tam acted in practice in accordance with his ruling and withheld the dowry from a husband who had married a woman and she died before the dowry came into his possession.
From Rabbeinu Tam’s words (in Tosafot and in Sefer HaYashar there) it seems that he arrives at his interpretation through purely exegetical considerations. The trouble is that Rabbeinu Tam’s objections to Rashi’s interpretation seem weak (Tosafot and the medieval authorities brush them aside quite easily), his own interpretation itself seems rather forced in the Talmudic passage, and on its own merits too it doesn’t seem there is some overwhelmingly compelling reasoning here. As noted, all (?) the medieval authorities except the Razah reject Rabbeinu Tam’s interpretation. Among other things, Reiner quotes Rabbi Yosef HaLavan, a student of Rabbeinu Tam, who objected to one of the difficulties: “It is not so, etc.; therefore on this point alone I could not grasp our Rabbi’s view,” and about the interpretation itself he wrote: “The entire flow of our passage does not go according to our Rabbi’s interpretation. Nevertheless, since it issued from the mouth of the holy one, if a case like this should arise, we should bring the judge to compromise between them [= to mediate, Reiner].”
After Reiner discusses the topic well, he writes (I’m gleaning quotations from pages 247–256): “It seems that what we have already seen is enough to assume that in this case Rabbeinu Tam deviated beyond the reasonable ‘angle of deviation.’ It appears, then, that it was not the internal logic of the interpreted sources that drove his interpretation but ‘something else’ […] An innovative interpretation, not to say a puzzling one, accompanied by a ruling, hints that the interpretation was intended to provide a convenient basis for a called-for ruling […] Rabbeinu Tam sensed the problematic nature of the existing law and tried to interpret the relevant Talmudic passage in an innovative way […] However, Rabbeinu Tam felt that this solution was only partial, and the enactment under discussion here came to cover what the interpretation could not.”
This really is a situation where you can smell tendentiousness, as Reiner points out. Both interpreting the Talmud in a strained way (even though from Rabbeinu Tam’s wording it appears that in his opinion the difficulties with the other interpretation, and his own interpretation, are quite compelling) and also instituting an enactment that expands even further in the same direction. What would you say explains a case like this?
[A case “like this,” and not necessarily “this one,” since obviously to reach a definite view one has to learn the passage well (I tried at the time, to the best of my ability). The example here is just an illustration.]
Answer
I usually look for an essential explanation, not hidden desires and agendas. That’s a tendency of scholars that I don’t like. But I have always wondered whether this belongs to the category of the principle of charity, which as I explained in my column about it does not mean trying to get inside the intention of your interlocutor (or of the person you are interpreting), but rather that this really is a reasonable assumption about the person being interpreted himself (Rabbeinu Tam).
The assumption is that the great medieval authorities were upright and wise people, and therefore with regard to them there is room to identify the two meanings of judging favorably, as I described in that column. So I can understand someone who interprets Rabbeinu Tam straightforwardly, that this is indeed how he genuinely proposes to read the passage. Moreover, it is enough for him to show that this interpretation is possible in order to choose it on the basis of consequential considerations, as you described.
To say that he was pulling the wool over our eyes in order to reach the desired agenda always seems to me a very problematic interpretation, though I can’t say I’m sure it is always wrong. Given what I see among sages in our own time (who unfortunately do act this way), maybe it was so in their time as well.
One has to remember that a person’s inclination can also change his understanding of a passage. If he leans in favor of the woman, then perhaps his innocent reading of the passage is biased accordingly (and that is not necessarily a “noble lie”). We are all human beings.
Discussion on Answer
By the way, when Rabbeinu Tam does put his reasoning on the table and tilts the interpretation by its force, Reiner immediately jumps on him angrily: “Rabbeinu Tam’s arguments do not address the Talmudic passage and rely on meta-halakhic positions” (p. 172).
There, Rabbi Menahem disagreed with the Halakhot Gedolot and argued to Rabbeinu Tam that a minor girl whose father went overseas—her mother and brothers cannot marry her off, because we fear that perhaps her father accepted betrothal for her; and only if the father died can the mother and brothers marry her off. Rabbeinu Tam answers him: “According to you, if Reuven went overseas and left daughters and died, they would remain bound until the day of their death. And according to you, you have multiplied mamzerim, for you and I know of many who died overseas and left minor daughters and they were married off, and some of them are in our own families.”
I don’t think there is any meta-halakhic position here, but a fully halakhic one: (a) that is an unreasonable halakhic result in itself. (b) If such a bizarre, major, and relatively common law were correct, it ought to have appeared in the Talmud. (c) Common practice is not like that, and that is good evidence that the earlier great authorities thought otherwise. And as Reiner quotes, Rabbeinu Tam of course also arranged the passage there very well, even though he didn’t spell it out in the responsum, and he concluded to Rabbi Menahem: “And if you understand the passage ‘she was betrothed with her father’s knowledge’ (Kiddushin 45), you will learn from it in accordance with Rav Yehudai’s words.”
I forgot the main point. If the authority of the Talmud over a great man like Rabbeinu Tam is only formal, does that at one stroke unleash the demons of deliberately tendentious interpretation (and only make it gravely forbidden to tell the truth transparently because that would conflict with formal authority)? Or in your opinion, in the end authority is authority, and lying is forbidden.
Absolutely not. Interpretation is supposed to aim at the meaning of the interpreted text. Lying is no help, and not only is it forbidden. What good does lying do? If you want to violate the Jewish law—violate it without lying. What does the lie help? Even if you lie, it will still remain incorrect.
But the conclusion reached by the lie is not “incorrect,” because if (let us assume that) the authority is only formal, then the lie preserves the formal authority in all its image and likeness.
True, I recall your view that a judge is not permitted to rule against his own opinion in order to turn the law into that rule that if everyone convicts in a capital case then the defendant is acquitted; rather, his duty is to state his ordinary opinion without considering the outcome (and I think you also suggested that this is how judges did and do behave). But with regard to formal authority, the lie would seemingly be easier. I’ve now remembered that you wrote something about this (in contrast to Henshke), and I’ll look at it tomorrow.
https://did.li/mikyab-henshke
Your wording there:
“Things here are, at first glance, baffling. The basic question is what that amora would have done in a situation where he could not apply ‘something is missing here, and this is what it means’ to the Mishnah. Would he then have given up the law accepted in his hands?
If he would have given up the law in his possession in such a case, then clearly in his opinion the ‘something is missing here’ reading is the true plain sense of the Mishnah, and it fits the law in his possession.
But on the other hand, if in any case he would stick to the law in his possession, it is not clear why he should mutilate the language of the Mishnah, in a way that he himself does not believe, merely so that it fit the law accepted in his possession. What is the point of wasting his time doing so, especially when it is not really necessary (for he would stick to the law in his possession even without that)?
Does he intend to convince someone (falsely) that the basis of his words is in the Mishnah? Even if so, I think he does not succeed thus. Someone who tries to do that is suspect not only of wasting Torah study time and of intellectual dishonesty, but even of stupidity. I see no point in distorting Rabbi’s Mishnayot, and in such an unconvincing way at that, especially when instead one can simply say (the truth) that we do not rule like this Mishnah but like another tanna, and explain why we rule that way (by tradition or reasoning).”
“Even if we say that Rabbi himself formulated the Mishnah, one can say otherwise. In my article on halakhic hermeneutics I argued that the content transmitted in the oral Torah tradition, to which later generations are bound, is the wording, not the author’s intention. Therefore, even if we say that Rabbi was the editor of the Mishnah, we are still bound by the meaning of the written text as such and not by Rabbi’s intention (see Bava Kamma 111a, where Rava explains the Mishnah in accordance with a baraita against the words of Rabbi the editor himself, and in Rashi there: ‘and we are not concerned with what Rabbi taught Rabbi Shimon his son.’ See also Seridei Esh, vol. 4, in his article ‘The Talmudic Interpretation of the Mishnah,’ where he explains this through textual considerations of the Mishnah itself).
If so, an amora may interpret the wording of the Mishnah differently from Rabbi.”
On the other hand, I think I’ve seen several times the idea raised that the amora disagrees and conceals his disagreement so as not to break the authority (formal authority, in your term) of the Mishnah. That is, the binding content really is the wording and not the author’s intention—but not because of providential considerations, rather because the author’s intention is substantive authority and the wording is formal authority. And formal authority can absorb here and there a few small lies without breaking. Why, in your view, is that not possible?
As a matter of plain reasoning, that seems very strange to me. The meaning of authority is that there is an obligation to obey it. If you lie in such a way, you are not obeying. True, it breaks the authority less, but authority must be obeyed, not merely left unbroken. See the column about the piglet, where I discussed a command that there is in principle an obligation not to rebel against, even without an obligation to fulfill its content. It’s exactly the same thing.
One could perhaps say what you suggest in situations where the circumstances require deviating from Jewish law (a transgression for the sake of Heaven, an impending disaster), and therefore noncompliance is justified in itself. But in order to educate the public, I conceal this behind pseudo-interpretive arguments that create a false appearance as though I am complying. There may perhaps be room for that, though I don’t like even that.
Similarly, see my article on the prohibition of going to secular courts. There I dealt with such an issue:
Very interesting. It seems to me that even in your words there against “winks,” there is a wink. You explain the benefit of “putting things on the table” by saying that nowadays the information is exposed and criticism arises that involves a great desecration of God’s name. But it seems that really it is your unrestrained craving for honesty that is speaking, not outcome-based considerations. And as for the outcome itself, here we are: the caravan keeps moving, from all the exiles, and with all the problems with Natzru etc. [I fear my skull may come rolling, but in my eyes lying is perfectly fine, like a hammer and like murder; it all depends only on what you do with it. Elsewhere you also enlisted pragmatism in favor of honesty, because without honesty there is no discourse and who knows where it ends—but that is a matter of dosage].
I no longer remember what I wrote there, but my position is that the practical consideration is only an addition, and honesty is required even without it. I assume that is what I wrote there too.
That is your position, and throughout the whole article there you prefer honesty, but the explicit reason you offer for honesty is as follows:
“It is true that our halakhic tradition also contains esoteric speech, that is, rulings based on certain principles but justified with different reasons so that they will be better accepted by the listeners, or so as not to cause harm. Sometimes the ruling itself is not revealed in public, in the mode of ‘this is the law, but we do not instruct accordingly.’ But to the best of my judgment, in our generation it is not right to continue this policy, even though it was indeed practiced by halakhic decisors from ancient times. If there is a leniency that has no halakhic basis, that must be put on the table—or given up.
The reason is that in our generation the information is exposed to the whole public. Most of it has a reasonable Torah education, or access to people with such education and to halakhic literature itself (or databases), and so very quickly all the winks are discovered, and criticism arises (justified criticism) that involves a great desecration of God’s name. I would note that in generations when there was an institution authorized to enact enactments, this was easier. There it was possible to present the unsupported halakhic decision as an enactment, and an enactment is a binding halakhic institution. But when we do not have such an institution, we find ourselves sliding into ‘winks,’ and in an age when the information is exposed, visible, and known to all, it is not right to do this. I will return later to the question of authority.”
That is exactly what I wrote here too. Even according to the approaches that permit esoteric speech, today it is irrelevant for tactical reasons. I do not agree with it on the substantive level either.
So on the substantive level you disagree with our halakhic tradition, which also contains esoteric speech, and on that basis you demand that the the halakhic authorities refrain from esoteric speech?
I wrote that one occasionally finds esoteric speech, not that this is a policy. I also don’t think that all the sages, or even most of them, behaved this way. But yes, I do disagree with it. In my opinion they were mistaken and even did something forbidden.
You yourself wrote a comment here that explains the problem with such a policy as well as can be:
(Seemingly there is a difference between inserting the lie into the halakhic canon so that it looks like all the rest of the Torah, where the goal is preserving ordinary Jewish law, and a lie by wink and silence or in a passing tale, where the goal is preserving Jewish law in general. Even if the second may be possible, the first seems extremely implausible. But a tidy, non-ad hoc argument for this really does not grow easily out of what I had thought. Last night I turned the matter over in my imagination for some time and truly found myself sailing in your direction, and many things you wrote rang in my head and began to seem marvelous to me. I need to clarify to myself more exactly what I’ve changed my mind about and why; maybe it will affect other things too. Many thanks.)
There is a serious problem with lying, far beyond the specific prohibition involved. It pulls the ground out from under the very possibility of discourse, as you yourself described well. In fact, in one of the last lectures I gave, someone remarked that even if one accepts the leniency of the Magen Avraham and the other person weighed your arguments carefully, afterward one would have to tell him that you lied. Though I don’t know whether that would improve his trust in you or not.
By the way, as you wrote, this touches many other arguments between us. Even the argument about personal legislation and using “improper” means in politics. Beyond the prohibition itself, the thing neutralizes the possibility of discourse and political activity that are based on some sort of shared conventions. And likewise with repealing legislation for conjunctural reasons of various kinds. True, people do this, but it is a problematic policy and not so simple to permit. There too it isn’t just a prohibition, but the breaking of the framework of discourse and law altogether.
Indeed. I need to think about this a lot and wait to see what bubbles up in me.
You wrote that in one of your recent lectures the issue of the Magen Avraham came up. If it’s in the YouTube lectures, do you happen to remember which one? (Though usually I find non-textual media too heavy for me. And here the verses in Psalms are required: “You have dug ears for me… then I said: behold I have come, in the scroll of the book… I proclaimed righteousness in the great congregation.” It begins with ears, continues with a book, and ends with speech—meaning that ears are useful for hearing, but understanding is not sealed except through reading, and is thereby established so that the convinced person can also spread it.)
*Correction: “You have dug ears for me,” not “you have called ears for me” as I wrote. Psalm 40.
I think it was in the previous lecture or the one before that, about mysticism. Lecture 8 or 9. Start with 9.
And the discussion was found in lecture 8. Lucky you suggested starting with 9, because that way I gained two interesting lectures.
🙂
In one of the passages above you wrote this: “I wrote that one occasionally finds esoteric speech, not that this is a policy. I also don’t think that all the sages, or even most of them, behaved this way. But yes, I do disagree with it. In my opinion they were mistaken and even did something forbidden.”
It is well known that the Hatam Sofer wrote appreciatively about the book Mitpahat Sefarim by the Ya’avetz (where the Ya’avetz showed that there are passages in the Zohar that were certainly added and edited in a much later period). I now came across this passage in the original source, responsa Hatam Sofer, part 6, no. 59, and there the Hatam Sofer seems to join your view and is puzzled by the permission for esoteric speech.
https://hebrewbooks.org/pdfpager.aspx?req=14667&st=&pgnum=41
This is his language there:
”
As for what he wrote, that the rabbi said in the name of my late revered teacher and mother’s father, I did not hear it from his mouth. Perhaps the rabbi permitted it to himself by the route our Sages spoke of: if you wish to hang yourself, hang on a big tree.
Do not blame him for this, for there is in your neighborhood the book Mitpahat Sefarim by Rabbi Ya’avetz. There you will find that the prophet spoke a great thing on this matter; those who see it will indeed be astonished, etc. [That is: the Ya’avetz proved that the editors of the Zohar sometimes put words into the mouths of earlier authorities and attached themselves to a big tree. And this is a precedent. — Tirgitz]
And I wonder about the very matter itself—that our Sages permitted falsehood in the Torah of truth.
As for what our Sages said, that it is permitted to alter for the sake of the ways of peace, Nachmanides was not comfortable with this according to the simple meaning, and therefore elaborated in his commentary on the verse ‘and I am old’; see there. [From what I see in Nachmanides there, the point is not the lie itself but: ‘I wonder regarding the righteous prophetess how she could deny what the Lord said to the prophet.’ And he answers that Sarah thought Abraham had himself noticed that she laughed, and did not know that the Lord had told Abraham that she laughed. — Tirgitz]
And the Magen Avraham in his ethical writings, sec. 157, decided that this is specifically regarding the past and not the future; see there. [The language of the Magen Avraham: ‘That it is permitted to alter for the sake of peace means only about something that has already happened, not about the future. Sefer Hasidim, sec. 426.’ — Tirgitz]
And the general rule is: truth stands firm.
”
Interesting.
Thank you very much. It’s a bit strange, though, that Rabbeinu Tam in Tosafot and in Sefer HaYashar does not mention even by hint that the law according to Rashi seems to him less reasonable. He only raises difficulties (and Reiner does well to point out how weak they are) and proposes an interpretation, and that’s that. Even if there is some reasoning here that steered the interpretation, one still has to understand why Rabbeinu Tam doesn’t mention it. Was he unaware that his reasoning was steering him? (I don’t have examples, but this point—of suppressing the reasoning hovering over the whole ruling—strikes me as somewhat common, unrelated to social agendas and more a matter of purely halakhic reasoning, though maybe I’m just imagining it).