This is, in part, just because I have been a mekorist for a long time and have forgotten what it’s like not to be one. In fact, I think even when I was Charedi, I was already a mekorist, just not very good at it. Like the average Charedi, I believed Charedi Judaism was a faithful and authentic representation of the religion of Hazal. When I ‘learned’ that the halachic shiur of a kezayis was larger than the olives we have today, I assumed that this was true. When I discovered that it was demonstrably untrue, I assumed that this was simply a matter of correcting the record, and it would all be ironed out in due course. As soon as I realised that this was not so, I stopped being Charedi. To me this is obvious, and I’d rather talk about things that aren’t obvious. However, perhaps it’s time for a short statement of why I am a mekorist.

The occasion for this is that there’s a new kid on frumstack called who’s been shaking things up. He’s spent a lot of time thinking about philosophy before he decided to become frum, and he argued himself into thinking that Judaism is true. With the state of things as they are, orthodox Judaism is lucky to have anyone who can write consecutive sentences, but Tommy is a few steps above that, and any decent Jew can only wish him the best of luck with his attempt to build a viable modern hashkafa that can accommodate advances in science and metaphysics. He’s kind of a basic lib, but that’s not such a bad thing these days, compared to the alternatives. However, while cognition is one thing, different intellectual fields require different skill-sets, and Jewish law is not a field where he is very competent yet. In response to my schmooz with Hacham Mordechai last week, Tommy had the following comment:

Tommy is committed to the search for truth. He says so, so it must be true. It’s remarkable, then, how much he manages to lie in the space of 14 words. It is, perhaps, telling that the defenders of mainstream halacha are ashamed to admit what mainstream poskim actually say. Here is Rav Rimon:

Now, let’s go one by one through the various points at the seder when matza must be eaten, and see how much matza must be consumed each time:

The first kezayit: This consumption of matza fulfills the Torah obligation of eating matza on Pesach night. Therefore, it is proper to follow the stringent view and eat three-quarters (or at least a half) of a matza.

One should bear in mind that this first kezayit must be eaten within a time frame called “kedei akhilat peras” from the moment he recites the berakha. There is much discussion surrounding the definition of this time frame, the most accepted view is four minutes. It would seem, however, that this discussion is irrelevant for practical purposes, so long as one eats at his normal rate of consumption without any interruptions, bearing in mind that the one “goal” before him at this moment is the consumption of a kezayit of matza.

The second kezayit: (eaten together with the first) As we saw towards the beginning of our discussion, this second kezayit is eaten only as an added stringency (and its level of obligation is therefore even less than that of a rabbinic enactment). As such, we may be lenient with regard to its size, and eat only one-third of a matza. We may add a further leniency, to view the three-quarters of a matza eaten for the first kezayit as consisting of two kezeitim (one-third of a matza each), and thus eat three-quarters of a piece of matza for both kezeitim. This view is cited in the name of Rav Elyashiv and Rav Nissim Karelitz (Siddur Pesach K’Hilkhato chapter 8, note 24).

Korekh: This obligation is “miderabanan” (rabbinic legislation), as a commemoration for the manner in which the korban Pesach was eaten in the Bet Hamikdash. Therefore, we may adopt the middle position (which assumes that the measurements have not decreased in size - see earlier in our discussion) and eat half a matza. One for whom even this involves difficulty may eat one-third (see Mishna Berura 486:1).

Afikoman: Although strictly speaking even one kezayit suffices for eating the afikoman (Shulchan Arukh 477:1), one should optimally eat two kezeitim (Mishna Berura ad loc.). Therefore, what we said earlier regarding the second kezayit applies here, as well. Namely, one may eat three-fourths (or at least two-thirds) of a matza and view it as consisting of two kezeitim. If, however, one feels that such an amount would constitute excessive eating (”akhila gassa”), he may eat half a matza, or at least one-third of a matza (see Mishna Berura 486:1).

So, if you want to be lenient and you find it difficult, you can get away with eating 2 matzot, but if you are doing it properly it’s a bit more than 3. Here’s Peninei Halacha.

Now, these are moderate figures. What do extreme types do?

Therefore, the ideal correct procedure is the following four-step process (see S.A. O.C. 475:1). Please note that some people will find step 4 rather difficult, so an alternative step 4 is provided later.

1. He makes the HaMotzi on all three matzos.

2. Then he drops the lower whole matzah and recite the blessing of Al Achilas Matzah on both the upper whole one and the broken matzah below it.

3. He then breaks a kezayis from both of them, wraps them together, and consumes a kezayis from each one simultaneously. Yes, that is correct: place both kezeisim in the mouth together.

4. Both kezeisim are then chewed well and split, within the mouth, in half–one kezayis on each side. Then one is swallowed, followed by the other.

If one reads the Shulchan Aruch carefully, the indication would seem that both kezeisim should also actually be swallowed together. However, both the Magen Avraham and the Mishnah Berurah (475:9) write that it is only necessary to have them in the mouth together, chew them, and separate them in the mouth, but it is not necessary to swallow them together–one after the other will suffice.

Anyone who has any familiarity with yeshivish or RWMO communities will know that that ‘I should try to have 30g of matzah on Pesach’ is not a remotely accurate statement of communal norms.1 We can leave aside the true nuts, those who, to take one of a number of different practices, crumble up their matza in a big pile so they can insert it all in the mouth and swallow at once. In general, someone who does not at the very least eat 1/2 of a matza within a set time frame (or ‘continuously’ if you are being lenient) will be told in no uncertain terms that they have failed to fulfil their obligation from the Torah, and they will be expected to do a lot more than that if they wish to be considered pious.

The mekorist response to all of this is just don’t do that. Eat as much matzah as you want at the seder. If you are very sick or very old, or really hate matzah, or are gluten intolerant, then just eat a little, and make sure it is the size of an olive. If you are uncertain how big an olive is, look at an olive. Otherwise, don’t even think about it. The reasoning behind this is simple: the word כזית means ‘like an olive’. Done.

There are two responses that one can make to defend the normie position. The first is to claim that olives used to be much bigger. This is completely, and completely demonstrably, false. Therefore, if you believe it after others have been pointed it out to you, you are culpably ignorant. That’s not great. It’s not good at all that a religion which is supposed, in due course, to lead to global enlightenment is expending resources teaching people obvious nonsense. However, of the two options, it is by far the better one, because the other one is to twist and abuse words to demonstrate why even though the factual argument for the larger kezayit is false, it is still binding law.

One argument used to make this case is that halacha doesn’t come, as the mekorist believes, from accurate interpretation of halachic texts, but (only) by way of mesorah. The problem with this argument is that it’s the absolute worst possible one you could choose for the question at hand. Not worrying about how much matzah you eat at the seder is the mesorah. The larger kezayit is something that is found in books and was completely ignored by the mass of Jewry until the 20th century. The spread of the large kezayit was a process of Jews learning the ‘correct’ halacha from textual study at yeshiva and then returning home to ‘correct’ their parents and anyone else, instructing them to abandon their mimetic tradition and instead start measuring out large, previously unknown shiurim.

The funny thing about the proponents of ‘organic’ halachic development is that they actually have no problem at all with halachic change that is driven by textual scholarship and replaces tradition. Indeed, they demand that we adhere to these changes. They only object when the proposed halachic changes are based on correct and responsible textual interpretation; when they are based on fanciful and obviously incorrect readings, it’s completely fine.

This seems like an outrageous allegation because it so obviously denotes a profound sickness of the intellect. I have been loath to state it as baldly as that, but there really seems no way around it. Time and time again, the Koppel fans make this argument that mekorists ‘don’t understand how halacha works’ because they think it is arrived at by accurate interpretation of texts rather than traditional practice, whilst at the same time demanding adherence to halachic norms that overturned traditional practice based on incorrect interpretations of texts. The only other way of explaining this is that they are just completely ignorant, or don’t understand basic logic, but, aside from the general principle of charity, I think this is not always the correct diagnosis. Rather, halachic-process enjoyers do not object to halachic change based on bad textual readings precisely because it gives them the opportunity to come up with convoluted explanations, to handwave at the ‘halachic process’, to claim that those who prefer a correct reading are unspiritual simpletons who are missing some profound and ineffable truths about the nature of divine law. Changing halacha based on correct textual reasoning doesn’t give room for such explanations, in fact it renders them a little silly, pompous even. Since they are already committed to such explanations, correction of error must be ruled out, always and forever.

Their second argument is that we cannot understand the arguments of Rishonim so we can’t go back and decide who was right and go with that. The problem, again, is that this doesn’t work at all for the matter at hand. It’s completely possible to understand the arguments of Rishonim regarding the size of the kezayit. The Ri points out that in one place it says you can swallow an egg, and in another place it says you can swallow two olives, thus an olive must be half the size of an egg. Note, he didn’t argue that this was the size of a kezayit, an entity that lives in halachic-ontologyland, he argued that this was the size of a zayit, an actual fruit. Rabbeinu Tam had a different argument. He pointed out that the gemara says that an olive is smaller than a dried fig, and from another place it is inferred that 3 dried figs are equivalent to one egg. Thus a zayit must be smaller than a third of an egg. Why were they arguing about this in the first place? Because neither of them had ever seen a zayit.

You have seen a zayit, so you know that Rabbeinu Tam was right and the Ri was wrong. That’s no disrespect to the Ri, any more than siding with the Ri would be disrespect to Rabbeinu Tam. Ri’s proof turns out, in fact, to be a kasha on the gemara. There are a couple of answers to this kasha, but, in any case, no-one ever died from a kasha.

Similarly, we know the Noda biYehuda’s argument that the size of eggs has halved. It’s based on a discrepancy that he observed between calculating the volume shiur for hallah using cubic measurements derived from finger-widths and doing so using traditional measures. The discrepancy was real, but the short answer is that calculating cubic measures from finger-widths is an absolutely terrible way of measuring anything because small discrepancies in the width of a finger end up getting cubed. Again, we know that his solution to the problem is wrong because eggs haven’t halved in size.

And that’s it. That’s literally it. Except it isn’t. So much has been written about how the halachic system works, but it’s all premised on the assumption that halacha does, in fact, work. What we really need is a theory of why halacha doesn’t work. It’s easy to see how errors are made, but why do they propagate and get fixed in the system in general? I’m not saying there are no answers to this question, it’s just that no-one has done any work on it yet because we’ve been too busy with congratulatory backslapping (or, like Faurists, blaming it on Ashkenazim being innately perverse, or Machon Shilo blaming it on galut). But actually it’s a really interesting problem.

Regardless, though, in the meantime, mekorism is the default hypothesis. If you believe complying with halacha is how you fulfil God’s will, then the obvious natural assumption is that halachic instruction based on mistakes are not correctly fulfilling God’s will. If I misread my luach and celebrate Pesach 3 days late, then obviously I failed to fulfil God’s will (even though I may have diminished culpability for any number of reasons). If my neighbour, or all my neighbours, or every Jew in the country, or every Jew in the world did the same thing, then the same thing applies. Try harder next time. It’s conceivably possible that some kind of mechanism might kick in when enough Jews do the same wrong thing that makes it so we actually are fulfilling God’s will, but that needs to be demonstrated, and ‘demonstrated’ doesn’t mean a lot of blabber and unsubstantiated claims of understanding a halachic process that has no tangible relation to actual history.

So that’s what we should do. Learn Torah. Do your best to understand what the texts you are reading mean. If you discover that your current practice is based on a misunderstanding, change it. Of course, you should seek out the counsel of those more learned than yourself, you should actively solicit opposing ideas, you should strive to understand the interpretations you are rejecting. But if you have done that, and you are still convinced that your current practice is wrong, then you should change it, because that’s how you serve God. Perhaps it seems silly to think that God cares whether you eat this or that, pick up this or that, abstain from this or that, but that is something we should have made up our minds about before we became orthodox Jews. If God does mind, then presumably He wants you to do it correctly, as best as you can work that out. Maybe you’ll make mistakes this way, but you’ll make a darn sight fewer mistakes than if you waste your brain contorting it with elaborate, but also spurious and ill-formed theories of why it’s good to do the wrong thing.

If you agree with the above, you’re a mekorist too. Great. There are a lot of details to discuss, and a lot of mistakes mekorists have made to date through over-confident application of immature theories, so let’s discuss them. There are also practical questions of how to make changes without damaging your community affiliation and similar; we should talk about those too. If you don’t agree, though, with the premise, then have a nice day I guess.

Gavriel () joined friend of the blog, R. Mordechai, on his channel, Shivrei luchot, for a conversation about kabbalah, halacha and mekorism as a social movement.

We heartily recommend R. Mordechai’s channel (it is mostly in Hebrew, though this episode was in English).

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

(Louis Carroll, Through the Looking-Glass)

The purpose of this article is to discuss a simple—or seemingly simple—question: the commitment to truth in pesak halacha.

My personal impression is that this is a problematic issue, which in many cases turns debates about halacha into a dialogue of the deaf. This occurs primarily because those who believe a posek has no commitment to the truth (a claim I will attempt to define more clearly later) tend to obfuscate the fact that they hold this view and mingle truth-oriented thinking with goal-oriented arguments. Throughout this article, I intend to clarify the various sides of the discussion to the best of my ability. Subsequently, I will also attempt to describe the logical, sociological, and faith-based problems that arise when the commitment to truth in adjudication is abandoned.

The approach I wish to challenge—which permits falsehood in Halakhic adjudication—will be presented here by contrasting it with a simple conception of halacha and Judaism which forms the foundation of Jewish religious education, even though it is usually not articulated in explicit terms, which posits more or less the following:

1. We, the Jewish people, hold in our hands the mikra, a collection of holy scriptures which was given over to us by revelation (the Torah, prophets, ma’amad Har Sinai etc.). The mikra reveals to us the will of the Creator, and our obligation is to act according to that same will.

2. In order to interpret the mikra (to clarify, for instance, if the pasuk ‘You shall not light fire in all of your habitations on the Shabbat day’ forbids driving a motor vehicle on Shabbat, or lighting on Friday a candle which will burn on Shabbat, or the use of electricity), Hazal gave us a first layer of interpretation, a layer which included not just explanations of the Torah but also many takkanot and gezeirot which they enacted according to the circumstances they saw in their time in order to ‘make safeguards for My precepts’.

3. Since the time of Hazal until today, the Torah Sages of each generation have laboured to delve into the correct meaning of their words and their application under changing circumstances, and this labour has given us certain ‘canonical texts’, such as the Rambam, Shulchan Aruch or Rashi’s commentary as well as a certain tradition of how and what is learned, how one makes rulings and so on.

Of course, one could argue about every single step in the set of assumptions I have described. A person could deny revelation or question the truth of the tradition, prefer the interpretation of the Karaites, Sadducees, or Sabbateans, decide that the sages of Izmir were greater than Maimonides, or that Rabbi Joseph Karo was not a serious scholar and his writings should be ignored. Challenges of this sort are of no concern to us here. I believe that the vast majority of people who define themselves as religious Jews accept the aforementioned ideas in a general sense, and this will be our starting point.

What does a posek, or a rabbi, do when asked what the law is in a specific case? There are, of course, several possibilities. It could be that he decides the answer to the question is already explicitly stated in one of the canonical texts (e.g., ‘What blessing is said over a particular food? It is written in Shulhan Aruch [or by Rambam, or in a certain responsum] to recite Borei Peri Ha’adamah’). He might think that the question has no connection to our sources whatsoever (e.g., ‘Is it permissible to eat an egg with milk? Yes, why not?’). But there is also a third possibility, which is precisely what constitutes the process of pesika – halachic decision-making. Sometimes, a question has no explicit source, yet it clearly relates to topics handled by Jewish law. In such cases, the posek is required—based on his experience and knowledge—to derive the correct answer from the canonical sources by way of analogy (dimuy miltah l’miltah—comparing one matter to another).

So far, so good; but now we reach the crossroads. The ‘naive’ approach to halachic decision-making holds that it is the posek‘s obligation to speak the truth—meaning, his interpretation of the canonical texts must be offered in good faith. He rules in a certain direction solely because he believes this ruling is what truly emerges from the canonical texts. If he decides that driving a car on Shabbat is forbidden based on the verse ‘You shall not kindle a fire’, the decision stems from his belief that this was the intention of the Holy One, Blessed be He. Obviously, he understands that every analogy can be questioned, and that one might alternatively claim the pasuk only applies directly, not by turning a key in an ignition switch. Yet he, the posek, based on his experience and scholarship, has come to the conclusion that these matters do indeed follow from one another. According to this view, the way a posek makes a decision is similar to how a medical board issues a recommendation for treating a specific disease. The case may be complicated, and the board members are well aware that other doctors might suggest a different course of treatment, but this particular board believes, in good faith, that the treatment path it outlines is the optimal one given the knowledge at its disposal.

But there are those who believe otherwise. According to their view, a posek‘s work is much more akin to what a lawyer does when defending a client in court. A lawyer is not interested, nor is he supposed to be interested, in bringing the truth to light. The lawyer has a goal, which is to win the case for his client. As such, he might not allow himself to tell outright lies (for fear of being caught), but he certainly is not acting in good faith to achieve the truth. He will filter through the facts, presenting only those that serve his purpose; he will attempt to gloss over contrary points, interpret sentences or words in ways he knows in his heart to be manipulative, and in the event of an argument or a challenge, he will defend his position—at times forcefully and audaciously—even though in his heart of hearts, he understands that the opposing view has merit and that his own evidence is not definitive.

It must be emphasised: we are not dealing here with a sociological observation, but rather with a normative claim. We all know that there are cheats in every field—there are doctors who push unnecessary medications and treatments due to private or institutional interests, there are scientists who forge results and there are judges who take bribes. In that same sense, there may be cases where poskim and Torah instructors defend a position they themselves know to be incorrect (meaning, it is unjustifiable as an interpretation of the sources) for various and sundry reasons. What proponents of halachic falsehood argue, however, is that a false interpretation of the type described above is legitimate. Just as the rules of the game in the legal system take it for granted that a lawyer represents a client rather than working toward objective truth, the rules of the game in Halacha likewise permit a posek to lie in order to achieve a certain outcome.

Sometimes, it goes even further than that. There are those who view honest halakhic decision-making—one that is devoid of deception and manipulation, and is built upon a proper understanding of the words of earlier authorities—as a shallow or secondary level of ruling. What is the great achievement in merely saying what has already been said, or in acting faithfully to established principles? In their view, it is precisely the posek who employs methods of deception—one who fabricates laws from his own heart while successfully creating a false appearance of continuity or of ‘restoring the crown to its former glory’—who is the true posek, the religious creator.1

Before we proceed to analyse the various sides of the question—the naive interpretive approach and the proponents of halachic falsehood—several points must be raised which, it must be admitted, render the very discussion problematic.

Who are we talking about?

The first point that will complicate our discussion and detract from its quality is the identification of the individuals or groups that I am attempting to oppose.

The proponents of the doctrine of halachic falsehood tend to conceal or obscure their position, for very obvious reasons. After all, any posek who comes forward and says, ‘True, it is written ‘You shall not kindle fire on the Sabbath day,’ but I have decided to change this, and from now on I argue—an argument that I myself understand to be incorrect—that teva’aru (kindle) is derived from the phrase ve’shilach et be’iro (Shemot 22:4), and therefore igniting a fire is only forbidden when done with the aid of an animal”—such a person would do a serious disservice to the agenda he is trying to promote. Part of the whole game is to always present it as the simple, plain meaning (peshat pashut), and to forcefully claim that the earlier authorities also saw it this way, etc.2 Lawyers, too, do not bother to repeatedly remind judges or juries that their loyalty is to the client and not to the truth; anyone who acted otherwise would ruin their standing in the profession.

In addition, many proponents of halachic falsehood are rather contemptuous of anyone who does not think as they do. In their view (which we will discuss later), only the blind and the foolish fail to see that the entire Jewish bookshelf was written by distorters of reasoning and manipulators of arguments of the type described. This perception also forms part of the justification some of them see for their position—namely, that since the majority of the public is composed of fools and ignoramuses, anyone who wishes to achieve a sociological goal, whether intending to bring about change or conserve the status quo, must employ various techniques of falsehood.

Consequently, proponents of falsehood tend to use sophisticated language (at least so it seems to them), a language in which those ‘in the know’ can communicate over the head of the ignorant reader. To give an example from another field, when we open an encyclopaedia and read there that ‘the Biblical narrative describes the exodus of the Israelites from Egypt’, the use of the terminology ‘the Biblical narrative’ usually hints to us that the author of the entry views the tradition of the exodus from Egypt as a children’s fairy tale and does not believe in its truth. He includes it in his encyclopaedia so as not to offend the sensibilities of the enlightened readers, but instead of saying ‘such and such happened’, he shifts the centre of gravity to ‘such and such is told’—an objective tone in which one could just as easily report on the stories of Little Red Riding Hood (’The Brothers Grimm describe how the wolf...’).

Therefore, and for additional reasons that will be clarified later on, supporters of halachic falsehood should be classified according to their social agendas, as these largely determine the language they use. To make a rough distinction, the proponents of halachic falsehood can be categorised into those of the Right and those of the Left.

Those I refer to here as ‘leftists’ belong to the liberal-academic wing of the religious public. They wish to create a worthy synthesis between the Judaism handed down to us by our ancestors and the Western culture that currently reigns supreme, and for this purpose, it is clear to them that a certain price can and must be paid.3 They dream of the appearance of ‘Rabbi Gorbachev’: just as Gorbachev, upon rising to power in the Soviet Union, proposed a completely new path while presenting his ideas as a rediscovery of original Communism, so too that hypothetical rabbi is supposed to create a synthesis of Judaism and the Western world by rewriting the Torah in a way that will appear to naive believers as continuity. Even aside from this aspiration, it is clear to them that in this very manner—of deriving meanings from canonical texts in an improper and bad-faith fashion while pretending that it is a simple truth—all significant halakhic poskim throughout Jewish history have operated. Of course, I cannot offer here more than anecdotal evidence, but to the best of my knowledge, the share of those who adhere to this doctrine of halachic falsehood as explained here, among academics in the relevant fields is decisive, and anyone who approaches the texts in a naive manner is usually considered an oddity.

Several characteristic expressions and idioms can hint at the influence of these ideas. Discourse concerning ‘the great posek who did not rule the same way for everyone’ and ‘knew how to tailor the answer to the questioner,’ or about ‘the posek‘s toolbox’ and the need for ‘creative’ or ‘bold’ Halakha or rulings—all of these are usually (though not always) loaded terms; the position such terms wish to express is that Halacha in the hands of the posek is like clay in the hands of the potter: if he so chooses, he rules stringently; if he so chooses, he wings it. In academic studies I have had the opportunity to read, one often sees how the researcher, when presenting a specific ruling, simply ignores the accepted justifications within the world of responsa and yeshivas (namely, the evidence demonstrating how that very ruling actually derives from the words of the Rashba or the Ktzot), instead emphasising the practical or social implications of the ruling (’In doing so, Rabbi So-and-So paved the way for permitting organ transplants’), whereby within the framework of the study, the practical context becomes the context of justification.4

Sometimes it seems to me that there are people who believe that in order to achieve this aim—segregation—there is a great need to permit the forbidden or (as is more often the case) to forbid the permitted. To pull off such a thing before the eyes of all Israel, particularly in an era when hundreds of thousands of Torah learners are engaged in every single corner of it, one must uproot the institution of rational halachic debate that has always existed among the Jewish people—the freedom that rabbis and Torah scholars have to challenge one another's rulings in light of accepted sources. The method is to declare a small, exclusive group of people, often a single individual, as the Gedolei HaDor or Posekei HaDor. The superiority of these leaders over regular Torah scholars is perceived as qualitative rather than quantitative: they are the ones who possess the authority to manipulate Halacha as they please, to invent new decrees,5 and to present them as though they stem directly from the words of the Rishonim (early rabbinic authorities), and the like.

It should be emphasised that I have no intention of claiming, Heaven forbid, that the very doctrine of Gedolei HaDor held by the Haredim is identical to a belief in the right of rabbis to lie and offer bad-faith, erroneous interpretations. It is entirely possible to follow the light of a Jew who has studied vast amounts of Torah because one believes he is simply correct in his interpretation, or because one estimates he has Siyata DiShmaya in hitting upon the truth due to the greatness of his righteousness, or even because one believes that the generation needs leadership and that this requires aligning oneself with the rulings of a certain individual. However, in all of these cases, we are not supposed to witness an attempt to eliminate the back-and-forth of halachic debate, the traditional way of the Torah, as was customary in the generations before us. When following major Torah debates in recent generations, one sometimes observes something that looks exactly like such an attempt, and it seems to me that what lies behind it is the assumption that there are those who are permitted to lie.

The Sociology of Halacha

In the previous paragraphs, we attempted to characterise the proponents of the ‘doctrine of halachic falsehood’ according to their social orientations. As will be explained in the following section, this approach is not accidental. The primary implication of the doctrine of the Halakhic Lie is the sociologisation of Halakha—that is, grounding halachic discourse on social objectives, rather than on the attempt to fulfil the will of God.

The naive approach to Torah study, which we presented above, asserts that the command of God, delivered to us through revelation, is the primordial source with which we wish to align ourselves. Furthermore, the interpretation given to it throughout the generations, the one that determined the manner in which we fulfil halakhic commandments today, is essentially the best possible effort we could put forth to observe the commandments spoken at Sinai and to apply them to a changing and elusive reality. Of course, we may err in this monumental interpretive enterprise; however, (as the author of the Ktzot HaChoshen elaborated on at length in his introduction) this is what we are commanded to do—to act in accordance with the Torah’s commandments while attempting to interpret this demand to the best of our understanding.

This entire structure vanishes instantly the moment we decide that there is an individual, or a group of people, who are permitted to interpret the sources in bad faith. After all, just as that hypothetical group of poskim can decide that electricity on Shabbat is forbidden based on the category of ‘making two loops,’ they can just as easily rule that oneg Shabbat (the delight of Shabbat) consists of driving to the beach and playing paddleball there. The moment we waive the requirement of good faith in interpretation and permit the forcing of texts while fully aware that this is what we are doing, one can get from anywhere to anywhere.

There is also no possibility of ‘saving’ traditional Torah study by drawing a distinction between various types of commandments and laws. One might suggest that regarding “ordinary” laws of the Shulchan Aruch, the rules of standard halakhic discourse do indeed apply, and it is only regarding specific, exceptional laws—those that affect the public or have broader implications—that these poskim are permitted to engage in manoeuvres of alteration and inversion of meaning. But here, the simple question of where the line is drawn will immediately arise, and the moment one contemplates it, one realises that halachic falsehood can have no barriers, neither practically nor logically. It is impossible to consistently define the laws regarding which it is forbidden or permitted to lie (defining the boundary between these two types of laws is itself, of course, a halachic boundary of paramount importance, exceeding any individual law; thus, regarding it, all the more so it must be permissible to lie). Furthermore, on a practical level, someone will always come along to explain why a tiny, specific detail in some marginal custom is actually the foundation of foundations and the pillar of the Torah.6

Therefore, accepting halachic falsehood as a legitimate possibility has two aspects that lead to a detachment from viewing religious action as the fulfilment of duties imposed upon us by Hashem yitbarach, and to its absolute subordination to the sociology of religious society. On one hand, because we are no longer interested in what the Rashba said—the words he wrote are merely an object for our manipulations—but rather only in how we can succeed in preserving our society or increasing its influence, the ruling of Halacha on any interesting or important question is examined solely through the metrics of the sociological yardstick. On the other hand, again because we are no longer interested in what the Rashba said, we lose the ability to argue with one another. The moment the lie is permitted, the question ceases to be ‘what is the truth’ and becomes ‘who is the one into whose hands the power of halachic manipulation has been delivered.’ And the moment we have decided upon an individual or a group of people as such, there is certainly no point in arguing with them or debating their rulings.

The results are obvious and immediate:

Firstly, it turns out that there is absolutely no point in the Torah study of a person who does not intend to later join that preferred group with the license to lie. Even regarding a person who does intend to do so, it is not at all clear whether proficiency in Talmudic knowledge is the decisive factor (unless the intention is to impress the audience with it). If there are those who view the Yeshiva world simply as a tool to keep the young men and married students within a framework, or so that while they are learning they won’t speak gossip—suit yourself, but it is nothing more than that.

To give you an idea, about a year ago I heard a lecture by an important figure who heads a well-known technological institute, a lecture that was supposed to deal with topics of technology and Halacha which are, of course, matters of great interest. In practice, during the first five minutes, the rabbi shared a novel halachic insight he had developed regarding a patient whose life is not in danger. This part of the lecture interested me (mostly because it seemed to me that his words were contradicted by an explicit Mishna), but I didn’t even get a chance to open my mouth to ask, because the matter ended immediately and the discussion shifted to what are apparently the truly important things: tall tales about how he went to this important rabbi and the assistant wouldn’t let him in through the door so he jumped through the window, and how Great Rabbi X spoke in Yiddish with Gaon Y and the like, followed by the rabbi’s opinion (and arguments with the audience) on what the sociological outcome of this or that heter would be, and how one can permit a grama switch on Shabbat—after all, it’s obvious that all religious people will use it to turn on the TV on Friday night and watch Big Brother instead of singing Ya Ribon.

Nothing said here constitutes proof regarding the aforementioned lecturer’s opinion on the importance of truth in Halacha. It could simply be that this is what he thinks ba’alei batim enjoy hearing, and it’s entirely possible he is right on that point. But for some reason, it seems to me, perhaps mistakenly, that more and more divrei Torah being spoken and written are taking on this exact character. The underlying cause is indeed the perception that sociology matters more than what is actually written in the Rashba. I read responsa and listen to lectures, and the same impression returns time and again: the author of the response or the lecturer believes that the Torah is registered in the land registry under his grandmother’s name,7 and that he will only release little tastes of it to us after meticulous deliberation and assessment after assessment of the social impact his rulings will have, in his opinion.

How different is this approach from that of the Nesher Hagadol, the Rambam, who in the introduction to Mishneh Torah explained his motives for writing the book:

At this time, we have been beset by additional difficulties, everyone feels [financial] pressure, the wisdom of our Sages has become lost, and the comprehension of our men of understanding has become hidden. Therefore, those explanations, laws, and replies which the Geonim composed and considered to be fully explained material have become difficult to grasp in our age, and only a select few comprehend these matters in the proper way. Needless to say, [there is confusion] with regard to the Talmud itself – both the Jerusalem and Babylonian Talmuds – the Sifra, the Sifre, and the Tosefta, for they require a breadth of knowledge, a spirit of wisdom, and much time, for appreciating the proper path regarding what is permitted and forbidden, and the other laws of the Torah.

Therefore, I girded my loins - I, Moshe, the son of Maimon, of Spain. I relied upon the Rock, blessed be He. I contemplated all these texts and sought to compose [a work which would include the conclusions] derived from all these texts regarding the forbidden and the permitted, the impure and the pure, and the remainder of the Torah’s laws, all in clear and concise terms, so that the entire Oral Law could be organized in each person’s mouth without questions or objections. Instead of this one claiming such and another such, [this text will offer] clear and correct statements based on the judgments that result from all the texts and explanations mentioned above, from the days of Rabbenu Hakadosh until the present.

So that all the laws to be revealed to both those of lesser and those of greater stature, regarding every single mitzvah, and also all the practices that were ordained by the Sages and the Prophets. To summarise: [The intent of this text is] that a person will not need another text at all with regard to any Jewish law. Rather, this text will be a compilation of the entire Oral Law, including also the ordinances, customs, and decrees that were enacted from the time of Moses, our teacher, until the completion of the Talmud, as were explained by the Geonim in the texts they composed after the Talmud. Therefore, I have called this text, Mishneh Torah [”the second to the Torah,” with the intent that] a person should first study the Written Law, and then study this text and comprehend the entire Oral Law from it, without having to study any other text between the two.

Regardless of whether the Rambam’s initiative succeeded or not, his declared objective was to establish a readable book that would instantly solve all halakhic questions and be accessible to everyone. Forbidden is forbidden, permitted is permitted, a commandment is a commandment, and a transgression is a transgression—without in-depth interviews with the questioners, without public opinion polls, without sophistication, and without secrets. A similar approach is also prominent in Rabbi Yosef Karo's introduction to the Shulchan Aruch, where he wrote: ‘So that the perfect Torah of Hashem shall be fluent in the mouth of every Jewish man. For when a when a Torah scholar is asked a matter of law, he will not stammer... since he will have this book fluent on his lips, built as a stronghold that all turn to... young students will constantly study and learn its language by heart, so that their childhood learning will be ordered in their mouths from their youth for practical application...’8

The second aspect of the sociologisation of Halakha, as we explained earlier, is related to the question of how disputes are resolved. Somewhat absurdly, if one accepts the assumption that the primary role of halakhic ruling is to influence sociology, the poskim become subordinated to their own social influence.

According to the naive approach, a halachic debate is a dispute between two sides regarding the true meaning of the Torah, the Talmud, or the Rashba. One can debate whether, for example, opening canned goods is more similar to tearing open the wraps of date clusters, which the Gemara permitted, or to puncturing a barrel plug, which was forbidden. One can also bring proof from the way the Rishonim understood the Gemara and how they resolved the apparent contradiction between the laws, and so on. When two Torah scholars clash over Halacha, it will not always end with one convincing the other to admit they were wrong. However, over the generations, a decision sometimes becomes accepted in accordance with one of the sides, or both sides are taken into account le-humra (stringently), and so forth.

According to the approach of halachic falsehood, the name of the game is entirely different. Aside from avoiding lashon hara or securing a good shidduch, there is no real reason to spend time on such questions, which will ultimately be decided in a closed forum based on factors that have absolutely nothing to do with the Ramban’s objection or the Maggid Mishnah‘s resolution. Consequently, the path a person must take to join that group of individuals who determine Halacha in practice is not scholarship itself, but rather that type of activity (which may include scholarship, but not exclusively) that will elevate him to a position of social leadership—ensuring that many people will heed his rulings, thereby granting him the ability to enforce his opinions.

The whole matter reminds me of something I once read about the monarchy in ancient Byzantium. The Byzantines believed that the king rules by the grace of God, and thus, if it so happened that someone rebelled against the king, they adopted one of two approaches: If he failed, then he was not only a rebel against the kingdom but a rebel against God, and he had to be executed in terrible agony. However, if the rebellion succeeded, then it became retroactively clear that God desired for the rebel to become king, and consequently, anyone who rebelled against him became a rebel against God—and so the cycle continued.

If one does not believe that Halachic rulings have objective content—a justification stemming from a correct understanding of a text—there is no escape from this Byzantine approach. Who will determine the Halacha? Whoever is listened to. And the proof? The fact that they are listened to. And if tomorrow I manage—through a campaign of false slander, shouting, and public relations—to ensure that they listen to me instead of him, then I will be the one who decides, and God’s will is that they follow my rulings. If you begin with the premise that the primary role of Halacha is to subjugate sociology, you end up in a situation where Halacha becomes subjugated to the social reality.

It must be emphasised that when we say that Halacha has an objective basis, we are not saying that historically, sociology did not play a role in determining the Halacha. It is possible that I might study a dispute between two Rishonim and reach the conclusion that one of them is correct, but in practice, the Halacha was ruled in accordance with the second because he was more highly esteemed, or because for some reason his responsa achieved wider distribution, or he was the rabbi of a large community, and so on. But for me, as an adherent of the naive approach, the conclusion is that the Halacha was determined in error and must be changed. Adherents of the Halachic falsehood approach, by contrast, maintain that a sociological victory is equivalent to a logical victory—that truth, by definition, is the prevalent Halacha.9

It is possible that this approach is the cause behind the intensifying competition over Torah leadership. In recent generations, we see an ever-growing escalation in the struggle among rabbis for leadership and influence. Thus, for example, the phenomenon of Torah branding is spreading. If the Rambam was Rabbi Moshe ben Maimon, and the author of the Shulchan Aruch was called Rabbi Yosef Karo during his lifetime, today there is inflation both in the quantity and quality of titles ('HaGaon Harav HaGaon' etc.) and in the aspiration of rabbis or their admirers to brand themselves with a unique moniker—such as 'Gadol HaDor,'10 ‘Maran,‘ ‘Posek HaDor,‘ ‘Sar HaTorah,’ ‘The X-Ray,’ ‘Baba X,’ and the like—monickers that were unheard of, at least not in this context, in earlier generations. Many times, these branded individuals are truly great in Torah and deserve every praise for their scholarly capabilities, but the purpose of this branding is not to elevate them in the eyes of those capable of reading their writings and delighting in their novel Torah insights—these people have no need for such branding—but rather to grant them broad social influence precisely among the Baalei Batim and other unlearned folk. Why do they need this? Well, one can raise many hypotheses, but one can certainly also suspect that here, too, is a reaction to the underlying logic of the doctrine of Halachic falsehood: if the social victor is, by definition, also the one who is Halachically correct, then it is entirely reasonable that the aspiration to achieve social prestige and social power—by any means and at any cost—would take over the Torah world.

That same constant struggle to attain Torah power, as well as the splits and fractions of splits that it causes, also demonstrates to us one of the inherent absurdities characterizing that theory. If the correct interpretation of the Tosafot is not the important thing, and what decides is who makes the ruling, who is the ‘Gadol,’ or who sits on the Council of Sages, what can be done when there are two or more publics, each with its own Gedolim? In the past, it was possible to remain in a state of dispute, even mention the opinion of the individual among the majority so that if a future court sees those words, it may rely upon them. But all of this is possible only when what matters is the truth. When control is what matters, there is no choice but to struggle in an attempt to suppress the other side. And again, we see this more and more in Torah-related arguments: instead of trying to disqualify the opponent’s side b’chefza—via his arguments regarding the Gemara—they attempt to disqualify him b’gavra, to show that he is not man d’amar [an authority worth listening to].

And in general, who exactly is this ‘public’ whose Gadol will be the one to decide? One can, of course, to fall back on assertions along the lines of Haskamat Klal Yisrael [’the consensus of all of Israel’], which also carries a certain mystical aroma that some people find pleasant, but in the last three generations, when the vast majority of the Jewish people is not observant (certainly not in the Orthodox sense), a problem is bound to arise. Has the majority of Klal Yisrael not decided to be secular, or Reform, or Conservative altogether? If the question at stake is the correct interpretation of the holy scriptures, there is no issue—a person can always claim that our interpretation is the correct one. But if the whole question is simply who has more followers, Woody Allen, Amos Oz, or Elie Wiesel beat any rabbi or council of rabbis hands down.11

Many years ago, I spoke with a Haredi rabbi, and during his remarks, he claimed that the vast majority in the country supports the exemption of Haredim from military service. When I cleared my throat slightly in scepticism, he explained himself: ‘Obviously, secular people don’t count, and impudent Mizrachnikim like you are also excluded from the tally. Therefore, there is a majority. What’s the problem?’. In a similar fashion, anyone who wishes to impose the rulings of ‘their’ rabbi over the entirety of Klal Yisrael, but on the other hand believes in the Halachic falsehood theory, must behave exactly like this. They cannot claim that he is correct in his interpretation, as that is irrelevant; therefore, the only way forward is to disqualify all other groups and sects within the Jewish people from entering the congregation. This ensures that only they, and those who eat the leftovers from their rabbi’s table, possess the legal status of a ‘public’ against which sociological power is measured. Again—it is easy to spot these trends in contemporary Jewish discourse (which include branding your opponent with titles of Min and Apikoros, even if the dispute is over a negligible and marginal issue) even if it remains difficult to attribute them unequivocally and exclusively to the Torah falsehood school of thought.

Incidentally, it is worth noting that the abandonment of rational debate over the interpretation of the holy scriptures and shift to a power-based resolution, where whoever controls society determines the truth—is, under our current social circumstances, more or less a death sentence for the liberal trends within Religious Zionism. By any conceivable sociological parameter—starting with birth rates, continuing through dominance in the education system, and ending with the willingness to engage in an unyielding, uncompromising struggle—the academics and their allies are guaranteed a painful defeat against the Haredim and the Hardalim. Therefore, I truly do not understand why they are so eager for the various mutations of the Torah falsehood doctrine, and why they prefer them over speaking the truth (while utilising, as much as possible, the academic tools at their disposal) in the hope of persuading.

Truth and Halachic Adjudication in Historical Perspective

After analysing the implications stemming from the Torah falsehood doctrine, we must also discuss the factual question: What actually happened, and how did the Halachic authorities and commentators conduct themselves over the course of the last two thousand years? Is it correct to assume—as a prominent avrech in the yeshiva where I studied once argued to me many years ago—that the Tannaim derived midrashic interpretations from the Torah as they pleased, the Amoraim twisted the words of the Tannaim whenever they felt like it, the Rishonim manipulated the words of the Amoraim, and so on down to our day? Or, to put it plainly, that the Jewish bookshelf is nothing but the Jewish bookshelf of lies?

Here we are faced with a factual question. Had we been able to read the minds of poskim and rabbis throughout the generations, we would have the tools to answer it unequivocally. Under the given circumstances, we cannot know, because if there were a posek who consciously distorted the sources to achieve a specific ulterior goal, he would presumably not have admitted it explicitly—such an admission would, in most cases, have ruined the social effectiveness of the Halachic ruling.

What we can nevertheless do is look at the halakhic negotiation documented in writing and wonder to what extent things appear honest—that is, to what degree it seems to us that the conclusions derive from the premises and the interpretations follow the plain meaning of the sources, or conversely, to what extent we can say that, generally speaking, we see here a distortion of the sources. If we arrive at the second conclusion, it would support the theory of Torah falsehood, or at least its historical approach as presented above—the approach of ‘The Jewish bookshelf of lies’.

I will emphasise that the mere fact that a certain posek made a ‘mahalach‘ [hermeneutical manoeuvre] that displeases us does not, of course, indicate that he gave the pesukim or the Gemara an incorrect interpretation in bad faith. The same situation can be given several alternative explanations, ranging from the claim that he was right and we are simply wrong or too foolish to understand his logic, to the opposite possibility that it was the posek who erred. Even mistakes stemming from personal bias—such as a case where a Jew writes a responsum and is later confronted with contradicting sources but finds it difficult to recant—are not to be categorised as bad-faith interpretation as long as the person himself is convinced that he is defending the truth. At most, we could say that the reason for his error in this case was not mere misunderstanding, but rather that type of cognitive blindness arising from ‘a bribe blinds the eyes of the wise’—something that affects every human being as a human being.

It stands to reason that different people will answer the question we have presented in different ways. Just as there are conspiracy theorists who will always view the actions of politicians as part of a ploy and will never believe in their sincerity (sometimes they are right, but people differ from one another in the baseline level of suspicion they display), so too there are personality types who will tend to attribute a Halachic ruling to all sorts of interests, as opposed to those who will fundamentally assume that the interpretation was given in good faith. All I can offer here is my own point of view, and in this context, I must note that generally speaking, I am not a person who believes in conspiracies.

And so,

In my humble opinion there is a great difference between two historical periods. From the period of the Mishna and Talmud, let us say, until the time of the Geonim, and the period of Rishonim and Aharonim – roughly the last thousand years.

Regarding the Rishonim and Aharonim, my basic feeling is that the proponents of the Torah falsehood theory stand on very shaky ground. It is difficult to see how one can dispute that Rashi and the Tosafists, Rambam and the Beit Yosef, the Noda BiYehudah and the Chafetz Chaim, and their peers, were Jews who studied Torah and ruled on Halakha out of pure faith in the truth of the tradition, the Torah, and the words of Hazal. As a rule, we find in their writings the desire to comprehend the meaning of the canonical texts with the aim of aligning, as much as possible, with the absolute truth of the Torah. This sweeping statement is, of course, made as a general rule: it is possible that here and there we might find a posek who advances a baffling hypothesis on a matter of social importance, and we might suspect that he said it only to achieve some ulterior goal,12 but these are remote and rare cases. When I open the Responsa of the Rashba or the Aruch HaShulhan, I find it difficult to see anything else.

Nevertheless, it must be admitted that there is a certain difference between our way of thinking and that of the ancients (and even the not-so-ancients) in terms of the sharpness of the definitions of truth and falsehood, and the level of critical evaluation. The development of scientific thought over the last few centuries has brought about a very specific standardisation of the level of critique, the transparency of debate, and the mode of argumentation and analytical thinking13 —things that did not exist in previous generations and still do not always exist among people who have not been properly exposed to mathematics or the natural sciences. Many times, when studying Rishonic commentaries on a given Gemara, I had the feeling that a very good question had been raised, but the answer was far less satisfactory; sometimes I even felt, to my regret, that the author was multiplying words because he lacked a proper, sharp explanation. Yet, to the best of my understanding, none of this has anything to do with the theory of Halachic falsehood: one who claims that the Ran and the Shach twisted and distorted the Halakha to adapt it to reality based on some public policy considerations seems to me very distant from reason.14

My position becomes much more problematic when we come to discuss the Tannaim and the Amoraim, and this is for three reasons.

The first reason is the derashot from which the Tannaim and Amoraim derived laws. In many cases, a contemporary person cannot, at first glance (nor at second glance), understand how Hazal could conceive of these exegeses (such as: ‘”He shall pay” includes less than the value of a perutah,’ or ‘”All fat” includes the koy,’ and the like) and why it appeared to them that the laws they derived indeed stemmed from the Biblical verses. The strangeness reaches such a point that several Aharonim, and perhaps Rishonim as well, suggested that the exegeses of Chazal are generally ‘supporting’ [i.e. asmachtot]—meaning that Hazal did not actually derive the laws from the exegeses, but rather knew the laws through tradition and merely anchored them to the words of the Torah.15 Someone who does not hold this view—that is, who understands that for Hazal, the exegeses are creative, meaning that the exegesis is what brought about the Halacha—might ask themselves how Chazal allowed themselves to interpret in a manner so far removed from reason, and answer that they wished to achieve certain aims and did not shrink from manipulating the language of the verses to achieve them.

The second reason (which is similar to the first) is related to the way the Amoraim interpreted the Mishnayot or other statements of those who preceded them. Frequently, a Mishnah has a meaning that seems to us like its plainest, simplest peshat, but the Gemara—due to one difficulty or another—applies an ukimta (a limiting qualification) to it. For instance, it might explain that a ruling in the Mishnah, which was stated as a general rule, actually refers to a very specific and rare case. Alternatively, the Amoraim adopt a method of altering the text of the Mishnah, ‘Hasuri Mehasra VeHachi Katani’. They then add supplementary clauses to the text of the Mishnah or the Baraita that are not written in the text, which can completely invert its meaning. Once again, certain scholars will find it impossible to believe that the Amoraim genuinely thought they were interpreting the literal language of the Mishnah. Therefore, they will argue that this provides support for the theory of Torah falsehood—namely, that the Amoraim forced the interpretation they desired for some reason, while distorting the meaning of the text that they supposedly accepted upon themselves as binding.

The third reason is related to a number of cases in which the Amoraim hint, or state explicitly, that it is permissible to deviate from the truth when necessary. This ranges from the principle of ‘This matter should not be stated in front of an am ha’aretz’16

and ‘Because they are not people of Torah’, meaning there are places or individuals to whom certain laws should not be revealed, all the way to statements like, ‘He who wishes to choke himself should hang from a tall tree’ (‘If you wish to hang yourself’—meaning to say something that will be listened to and accepted by people, ‘hang from a tall tree’—state it in the name of a great authority. [Rashi]). If the Amoraim themselves openly state that they lie from time to time or when necessary, how far is that really from the halachic approach of the Torah falsehood school of thought?

I am not claiming here that I can easily or fully explain all of these questions; nevertheless, there are a few points worth noting.

It is entirely possible that the Tannaim and Amoraim operated with a different logic than ours—a logic that I do not understand, and perhaps no one today truly understands, but which they fully comprehended. Therefore, the mere fact that they made interpretive moves that seem far-fetched to us does not necessarily force the assumption that behind these words lies a flawed interpretation made in bad faith.

Furthermore, it is very hard to discern the self-interest or the social reform that Hazal were trying to achieve in all those derashot and ukimtot that seem so strange to us. Granted, in recent generations, academia has grown fond of explaining various rabbinic decrees and derashot as measures designed to serve their struggle against the Sadducees and other sects. However, anyone familiar with the Gemara understands that even these claims are relevant to only a tiny fraction of the interpretations, including the most far-fetched among them. Which Sadducees are they sparring with in derashot concerning matters of “less than the value of a perutah“ or a koy (an animal of ambiguous status), and the like? To be convinced that someone is explaining a text in bad faith, it is not enough for their words to seem strange to us; usually, we also require some insight into the goals they are aiming for. Yet, regarding the vast majority of Hazalic derashot and Amoraic ukimtot, it is difficult to find any such underlying interest.17

And finally, as I have expounded at length elsewhere,18 Halacha is clearly a regulatory system, rather than a constitutive one.19 This is written in the Mishnah, repeated by the Rishonim, and reiterated a third time by the Poskim: someone who knows that the court is mistaken in its interpretation, even if it is the Great Sanhedrin in the Chamber of Hewn Stone, is forbidden to rely on their words. I find it very difficult to see how these rulings [from Tractate Horayot], which originate in explicit Mishnayot and Gemaras, can be reconciled with the theory of the Torah falsehood—which by its very nature requires an individual to bow before those who hold sociological power (and in this sense, there is no greater authority than a Court of Seventy-one in the Chamber of Hewn Stone).

On Morality and Certainty

At least as far as the purveyors of the false doctrine from the left are concerned—those belonging to the more liberal stream of Religious Zionism—there is a clear motive underlying their affection for this mindset: namely, the license it grants them to change Halacha and deviate from the received Torah through the distortion of content and the manipulation of texts. This is particularly important if one wishes to solve one of the primary problems facing a contemporary Western individual who is also an observant Jew: the glaring contradiction between certain contents of the Torah and Halacha (the eradication of Amalek, the wayward and rebellious son, the Sotah ordeal, saving a Gentile on Shabbat and the attitude toward Gentiles in general, Agunah status, and so on and so forth) and what is accepted in today’s world as moral and proper.

However, one must remember that society’s moral principles are far more mobile and transient than most of us perceive. The shift that has occurred over the past century in human moral attitudes toward nationalist impulses, women’s rights, racial theory, euthanasia, or socialism and communism is immense; there is no reason to assume that a century from now, society’s concepts of good and evil will not change from one extreme to the other regarding at least some of the basket of ideas that define the good and the moral in our current society.20 Nevertheless, our sense of objectivity regarding moral sentiments is extremely powerful. Most of us feel strongly that passing by someone in distress and not helping them is truly wrong, rather than thinking ‘society today condemns this, so let’s help him.’ So, what does one do if, say, the Torah forbids helping this person because he is a Gentile? The purveyors of the doctrine of Halachic falsehood have no problem: we will babble many words and twist the written Halacha so that it turns out to be permitted. But is the damage worth the cost?

In my opinion, no. The simple reason is that the doctrine of halachic falsehood collapses Torah study and the commitment to it. If it is truly possible to uproot laws through deliberate, bad-faith manipulations, why stop at saving a Gentile on Shabbat or permitting an Agunah? Why shouldn’t authorised rabbis stand up and abolish Shabbat entirely, or sell the Holy One, Blessed be He, to a Gentile, and we can all go eat pork shawarma in a laffa? By its very nature, falsehood has no bottom limit. As the Latin adage goes, ex falso quodlibet—from falsehood, anything may follow.

But there is another point related to those contradictions between Halacha and Torah on one hand, and moral sentiment on the other. Recently, I have come to the conclusion that the very existence of these contradictions is necessarily bound up with another phenomenon: the scepticism an individual harbours regarding the truth of the Torah and the chain of its transmission.

To illustrate the point, let us imagine the following situation: The Holy One, Blessed be He—to whom we attribute characteristics of infinite goodness, infinite knowledge, and infinite power—reveals Himself to a person who harbours absolutely no doubt regarding those characteristics (that is, regarding the existence of God, His goodness, and the truth of the revelation) and commands him to commit the most shocking and cruel act: to burn his children alive and saw himself to death. Does that person have any rational reason not to fulfil God’s command?

On its face, the answer is negative. Since the Commander possesses infinite goodness, it is clear that what He commands is good, even if the person commanded does not understand it. Since He possesses infinite power, He can also carry out Himself whatever He has tasked the person with—meaning the suffering will occur anyway, and all that is left for the person is to merit a mitzvah. The Creator can compensate the victims for their suffering with infinite reward in the World to Come, and so on and so forth. In short, a person who is convinced that the Holy One, Blessed be He, possesses the aforementioned attributes, and is convinced that the Holy One, Blessed be He, commanded him to do such-and-such, has no rational reason whatsoever, nor any moral reason whatsoever (since it is within the Almighty’s power to cause that same pain and suffering Himself, and furthermore, God is good, therefore the command constitutes doing good), to refrain from executing the decree. Of course, he might fail the test and violate God’s command, but in this, he is no different from Adam eating from the Tree of Knowledge or any other standard transgressor out of desire (lete’avon).

The conclusion from this discussion is seemingly straightforward. If a person feels that some decree written in the Torah or in Halacha contradicts their moral sentiment, and because of this, they are unwilling to fulfil it, it can only mean that they lack one hundred percent certainty in one of the assumptions mentioned in the previous paragraph. Either they attribute a certain probability to the possibility that God does not exist or is not good, or they doubt that the Holy One, Blessed be He, actually stands behind this Halacha or din—perhaps because there was some break in the chain of transmission or interpretation.

But if that is indeed the case, why is there a need to forge Halacha or distort it with all sorts of manipulations to fit the spirit of the times? If a person is capable of admitting that he has doubts about the Revelation at Mount Sinai, or wonders about the questions raised by Biblical critics, or is disappointed by the answers to the problem of theodicy and the hester panim during the Holocaust, or fears that perhaps the Karaites were right, or that perhaps the Amoraim erred in interpreting the words of the Tannaim, or that one of the Rishonim simply invented stringencies or leniencies, or that he does not believe in the antiquity of the Zohar and the laws that entered Halacha from the Kabbalists, and so on and so forth—he can simply say: ‘The credibility I attribute to the Torah, or to law X, is 91%, and that is not enough for me to leave the Gentile to die in the street.’ What is the problem?

Here we return to the tension between the seekers of truth and those who are primarily concerned with sociological questions. Anyone whose central question is how to achieve stability for the observant community, how to prevent people from leaving and the public from fracturing, will certainly want to present things as though the level of certainty we have regarding every minor clause in Sha’ar HaTziyun, and every gematria of a Hasidic darshan, is identical to the level of certainty of one who stood before Mount Sinai and heard ‘I am Hashem.’ In other words, that every link in the thousands-of-years-old chain connecting these two extremes possesses one-hundred-percent credibility. The last thing he would want to admit is that ‘this tradition is sound, but that tradition is not sound’—that there are laws or customs whose sources are uncertain and whose credibility is weaker. However, such claims certainly do not align with the theory of Halachic falsehood, according to which in every generation the Halacha was distorted using manipulations; hence, at least regarding those individuals who are troubled by contradictions between morality and religion, the approach of Torah falsehood as a platform for solving the problem is redundant from any perspective.

Conclusion

The core principle of Judaism, and presumably of any other religion, is the believers’ faith that the actions they perform in a religious context reflect the will of God. One who does not believe this—the secularist—would say that religion is a great tragedy; that millions of people spent their time and energy, suffered, killed, and were killed, for something that is nothing but a delusion. The most infuriating thing about the proponents of the various halachic falsehood theories is that, on the one hand, they sever any connection between the will of God and what we actually do (since the path is paved with thousands of links of people who distorted, twisted, and altered the meaning of the sources according to their own whims), while on the other hand, they declare that this is the true religion and there is no alternative. This conception not only strips away the value of fulfilling commandments and avoiding transgressions, it also turns the entirety of Judaism not into a tragedy, but into one big joke—into a farce.

Some will argue that this is precisely the will of God: that we follow the arbitrary interpretation of a closed group of gedolim, regardless of whether what they say has any connection to the text they purport to interpret. Beyond the contradiction I have already noted arising from the law of court error in Horayot, this leads to the ‘Byzantine’ conception of Judaism—a conception in which the only thing that matters is who commands the public’s obedience (since he is right by definition). From there, the path leads to violent and sordid disputes to seize ‘power’ on the one hand, and to attempts to disqualify individuals and sub-groups within the Jewish people to exclude them from the equation on the other. It is not difficult to witness these dynamics playing out in our generation, even though, as I have stated, they may also stem from other causes.

There are rabbis who have gone even further. They deny not only the reliability of Torah commentators throughout the generations, but the very concept of truth itself. According to their approach, truth is not measured by the correspondence between facts and reality, but is rather a product of social reality or social interest. Thus, for example, R’ Dessler writes:

What is truth and what is falsehood? At the beginning of our education, we understood that truth is when one relates facts as they occurred; and falsehood, when one departs from this.

But this is only in simple cases; in practice, however, there are many instances where this is not so. Sometimes it is forbidden to state things as they are—such as recounting something that degrades one’s fellow, without utility or necessity. And sometimes one must precisely alter [the facts], when the truth will not benefit but only cause harm. For in such cases, that which appears to be truth is actually falsehood, as it generates evil consequences, and that which appears to be falsehood brings about the purpose of truth.

We thus find that truth is that which leads to good and to the will of the Creator, and falsehood is that which brings success to the affairs of the Prince of Falsehood, the Sitra Achara. [Michtav m’Eliyahu, 1:94-95]

Whereas R’ Shagar explains in his book, Kelim Shvurim, that

When we speak of truthfulness... we must abandon the metaphor of revelation and in its stead prefer a metaphor of self-creation and self-constitution... The scientific discourse is designed through a will to power... ]Physical formulas[ do not represent reality, are found in the mind of the scientist and grant him control over the world… The history of interpretation will be conceived as a directed struggle and not as a discovery of a metaphysical truth.

It is difficult to describe my anger and astonishment upon reading such absolutely dreadful things—claims that completely erase the difference between man and beast, and between one who serves God and one who does not. Even those who utter these claims do not actually believe them (when they are sick, they know full well to take antibiotics rather than visit a Mongolian shaman). If ‘truth is that which leads to good and to the will of the Creator’ rather than ‘recounting facts as they occurred,’ then any decision regarding what constitutes the will of the Creator must be entirely arbitrary (the Revelation at Mount Sinai cannot serve as a source, since one is apparently permitted to alter ‘facts as they occurred’). Ipso facto, every decision and every religion becomes equally true or false. As Rabbi Shagar wrote, the Halacha in this case ‘draws its justification’ from being a ‘socio-religious practice.’ It would seem there are alternative socio-religious practices out there that are far more user-friendly.

I am not sufficiently worthy to argue with the masters of the doctrine of falsehood, and truth be told, there is little point in it anyway—just as there is no point in trying to convince a lawyer to admit that his client is wicked. Falsehood, as is well known, is a shield slicked with the finest oil; in the face of a single truth, it presents an infinite variety of variations, such that you can never refute them all. Nevertheless, I feel these matters must be laid squarely on the table.

There is no point to Judaism if it lacks the belief that the things we do are the will of God, conveyed through revelation to our ancestors and passed down to us via a reliable tradition. It is possible that along the way all sorts of errors occurred, and perhaps the words of people who knowingly altered and deceived even slipped in; but fundamentally, the aim of the scholars and poskim in every generation was to interpret—in the closest possible manner to the truth they could attain, and in good faith—the tradition as it reached us in the books of those who preceded us. Anyone who lacks this belief has, in my eyes, no reason to observe the commandments (unless they just terribly enjoy eating karpas). And in the absence of basic trust, there is also no point in listening to his opinions (or what he presents as his opinions), even if his beard is a cubit long, his hat is a cubit high, and his names are imposing.

The simple assumption upon which I was raised as a child seems correct to me even today: a believing Jew, who wishes to be part of the chain of generations transmitting the Torah, is fully committed to a good-faith interpretation of the words of the Torah, the Mishnah, the Gemara, and of all the Rishonim and Aharonim down to our very day. One may disagree, one may reject, we are also liable to err—but it is forbidden to knowingly lie, and it is forbidden to interpret texts in bad faith. Anyone who blesses every morning ‘[Blessed art Thou...] who has given us a Torah of truth,’ would do well to ensure that the blessing counts for something.

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Alas, for the tractates in the Order of Kodashim, we no longer have Yerushalmi. Rambam refers to its existence, if it did exist, but most Rishonim did not have access to it.

This claim comes up periodically, and it has good source, namely the printed editions of Rambam’s Introduction to his Commentary on the Mishnah.

ומה שנמצא מחבור רב אשי בתלמוד הם חמש ושלשים מסכתות. ולא מצאנו לו דבר בסדר זרעים אלא בברכות בלבד ולא במסכת שקלים מסדר מועד. ולא על מסכת עדיות ולא מסכת אבות מסדר נזיקין. ולא על מסכת מדות ומסכת קנים מסדר קדשים ולא מצאנו לו דבר גם כן מסדר טהרות אלא במסכת נדה בלבד.

אחר כן נפטר רב אשי בבבל אחר שגמר התלמוד כאשר זכרנו.

וכן עשו חכמי ארץ ישראל מה שעשה רב אשי כתבו התלמוד הירושלמי. והמחברו הוא רבי יוחנן ונמצא הירושלמי חמשה סדרים שלמים.

אבל סדר טהרות לא נמצא לו תלמוד בשום ענין לא בבלי ולא ירושלמי אלא מסכת נדה כמו שזכרנו. אבל יכול אדם לפרש הסדר ההוא אחר יגיעה רבה ועמל גדול ושיסייעוהו התוספתא והברייתות וילקט ההלכות הבאות על ענינו בכל התלמוד ויוציא בשכלו העקרים של המסכתות ועניניהם מן ההלכות ההם. כפי שתראה כשנפרש הסדר ההוא בעז”ה.

Is it possible that there was once a Yerushalmi on Seder Kodashim? The answer is no. There is an obvious reason for this, namely that we have no manuscript evidence for the existence of these Yerushalmi tractates, no commentary on these tractates, no quotations from these tractates etc. The less obvious reason is it doesn’t fit with the basic shape of the Yerushalmi we have. The Yerushalmi appears to be a project intended to cover every tractate (apparently excluding the odd ones like Eduyot, Avot or Tamid) that was abandoned half-way through. The early tractates are big and well-developed, sometimes almost Bavli like. Then it gets sparser as you move on and just kind of fizzles out during Nezikin. That’s an oversimplification of course. They skipped ahead to do Niddah, and also seem to have brought forward Sanhedrin and Avodah Zarah, which are just as developed as the earlier tractates. However, if you look at the extremely underdeveloped Bava Metziah and Bava Batra, it would be very surprising to find that they got to Kodashim after all. On top of that, Rambam himself doesn’t ever quote from this Yerushalmi that he apparently says exists, though he does quote from plenty from the first four Sedarim.

So this is a kasha on Rambam rather than an indication that there is a lost Kodashim. What’s the answer? I think I know. Here is what Rambam wrote:

If you can’t make head or tail of that, it’s because it’s in Judeo-Arabic, the native language of Middle Eastern Jewry, a kind of working familiarity with which should be considered a sine qua non for a Jew of letters. However, in order not to be exclusionary, we’ll look back at the Hebrew translation:

The language ונמצא הירושלמי חמשה סדרים שלמים is a bit funny. Rav Kafiq’s translation has ונמצא מהירושלמי חמשה סדרים שלמים which is clearly better and means something like ‘and from the Yerushalmi there are five complete sedarim’. The traditional interpretation of this line is actually a bit hard to square with what Rambam says. If he meant that he could just have said, ‘the Yerushalmi has five complete sedarim.’ I believe it becomes clearer if we read the passage in context. What Rambam says in this section is as follows:

1. In the Talmud Bavli there are 35 tractates, including only one from Zeraim, missing Shekalim from Moed, as well as Eduyot and Avot from Nezikin, and containing only Nidda from Taharot.

2. The sages of Eretz Yisrael also made a Talmud {and from that we have five complete Sedarim}.

3. For Seder Taharot we have to make do with sources from the Tosefta and other baraitot as well as talmudic passages dispersed throughout both talmudim.

The reading that simultaneously fits best with both Rambam’s phrasing and outside reality, is that in addition to the Bavli from the Yerushalmi we have five complete Sedarim, because the Yerushalmi makes up what the Bavli lacks, namely Seder Zeraim and Shekalim. This is still a bit problematic because there’s no Yerushalmi on Eduyot and Avot, but it’s less problematic than conjuring up a phantom Yerushalmi on a whole seder.

After writing this article I wasn’t sure and I sat on it a while, but it turns out that Professor Brody already made this observation in an article that is worth reading.

If you want to resolve (rather than endlessly generate) problems in the Torah scholarship, it always pays to read academic articles by the top guys. I should spend more of my time doing it; you almost certainly should.

On Zoharism.

This is the midrash Gavriel mentioned: https://www.sefaria.org/Yoma.69b.9

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It is true that the Zohar fundamentally transformed the midrashic concept of the Erev Rav from a group that used to exist (and, certainly in some cases, is used to excuse the Jewish people of responsibility) into a permanent spiritual entity, described as one would expect given the squalid and diseased imaginations of the authors of the Zoharic corpus. There is nothing misleading about describing this as a Zoharic innovation and quite alien from the spirit of Rabbinic Judaism.1 However, the innovation does not come from literally nowhere. The Babylonian Talmud in Beitzah 32b records the following story.

ואמר רב נתן בר אבא אמר רב עתירי בבל יורדי גיהנם הם כי הא דשבתאי בר מרינוס אקלע לבבל בעא מנייהו עסקא ולא יהבו ליה מזוני מיזן נמי לא זינוהו אמר הני מערב רב קא אתו דכתיב ונתן לך רחמים ורחמך כל המרחם על הבריות בידוע שהוא מזרעו של אברהם אבינו וכל מי שאינו מרחם על הבריות בידוע שאינו מזרעו של אברהם אבינו

Now, it is important to be clear that what is written here doesn’t even resemble the Kookist doctrine, and anyone who tries to tell you it does is, at best, an incompetent reader. First of all, the lack of compassion attributed to the wealthy Babylonian Jews is not based on their positively possessing a special quality of Erev Rav. Rather, it is the absence of descent from Avraham that is (allegedly) betrayed by their miserliness. Erev Rav lineage is called on to explain how they ended up being part of the Jewish people without possessing Jewish traits. Secondly, and probably more importantly, the source goes out of its way to say that it is compassion to all creatures that demonstrates unblemished descent. This is indicated both by the use of the term בריאות, and, secondly, by the self-evident fact that Avraham exercised compassion to gentiles since there were no Jews for him to be compassionate towards. Accusations of Erev Rav today are primarily directed precisely towards those who object to killing Arab civilians, torturing prisoners, expelling families from their homes and similar. Even if we were to agree to the proposition that circumstances in the Levant are such that we have to engage in cruel policies for the greater good, it would still be the case that the error of the Left is showing an excess of precisely the virtues the Talmud claims indicates Abrahamic descent. This is why Rambam alludes to this passage immediately after emphasising the need to treat non-Jewish slaves with compassion.

However, with that said, this source presents two genuine problems. First of all, who is Shabtai Bar Merinos? He doesn’t appear anywhere else, and he doesn’t appear to be either a רב or a רבי. Secondly, while we can no doubt sympathise with his distress upon receiving neither a business loan nor charitable donations, who exactly is he to make drashot about the lineage of others, given that this is literally forbidden? Indeed, since both Talmud and codified halacha tell us that כל הפוסל במומו פוסל, doesn’t that mean that Shabtai Bar Merinos himself should be presumed Erev Rav until further notice? The source certainly tells us that at least some Jews in the talmudic period expressed their dissatisfaction with other Jews by declaring them descendants of the Erev Rav; we do not know their identity, when or where precisely they lived, or how numerous they were, but we know that at least some existed.2 What it doesn’t tell us, certainly not on its own, is whether this was correct. In other words, and to simplify matters somewhat, is it possible that this source is wrong?3

The Talmud contains a lot (really, a lot) of material, and not all of it can be authoritative for the simple reason that some of it contradicts other bits. This is even more so if, as I believe we should, we open up the range of potentially authoritative texts to the full contents of Yerushalmi, Tosefta and the halachic midrash. What we need, therefore, is some kind of system for classifying the disparate material as more or less authoritative. In fact, all branches of Orthodox Judaism already do this, because it’s literally impossible not to; it’s just that the way they do this is usually not well articulated, but rather arbitrary, and, not infrequently, capricious. It is, almost invariably, done in a way that it completely oblivious to the advances made in academic Talmud study over the past hundred years, which, though they do not tell us in any simple way what to do, certainly can, and therefore should, inform how we derive guidance from the text. The way we treat sources is inevitably shaped by our views of who wrote them, who recorded them, when and why, and, at the risk of belabouring the obvious, we’ll learn from them better if our views are accurate.

The standard Orthodox response is that once we permit ourselves to make judgements about what parts of the Talmud are less or not at all authoritative, then we will end up throwing the whole thing out. The simple answer to this is that, as above, in reality all Orthodox groups already do it too. In fact, no small number do it in ways that are quite reprehensible, such as unashamedly flouting multiple sources across Hazal teaching that Jews should do their utmost to avoid relying on charitable donations. However, even if we subtract the areas of obvious hypocrisy, they would still have to do something generically similar because there is no other way to deal with the Talmud. What we are suggesting as mekorists is doing it an intellectually responsible and rigorous fashion.

However, there is another argument too. Let us grant that there is a danger in allowing academic Talmud study into the beis medrash; there is also a danger in not doing so. When we block the paths of measured and critical intellect, people don’t stop making chiddushim; instead they make chiddushim unbound by philology, common sense, or plausibility. The authors of the Zohar pored relentlessly over the whole talmudic and midrashic corpus finding any scraps they could use as raw material for their morbid and depraved fantasies, which they weaved without any concern for epistemological standards of any kind. Their heirs, the Sabbateans, did so too, with even more intensity and vigour. The Sabbatean insights were in due course laundered through various channels and form the bulk of what is called hashkafa today. And the heirs of the Sabbateans are not done either, for each day Yitzhar and Bat Ayin discover new sparks among the klippot and send them forth among Israel. Whatever power the traditionalist Judaism of the Yekke or the Oiberlander once had to restrain all this through appeals to conservatism and established doctrine is spent.

Being in diaspora had its drawbacks, but one benefit was that, to a certain extent, none of it really matters. I have read things by Chassidic ‘masters’ so unhinged that it makes the hair stand on end, but though these were imaginations gone very haywire, that’s all they were. In the realm of the mind, we were not doing well at all, but we couldn’t actually do anything about it. For better or for worse, though, a group of Jews escaped the swirling mental prison of wordplay and non-sequiturs we had made for ourselves, built for us a country, and then handed it over. One way or another, what happens over the next few decades will determine what happens to the Jewish people for centuries to come. The question before us is what the Judaism of our Jewish state will be. Every time you ask a question because you want a proper answer not a ‘terutz’, every time you think, you are making a small rebellion against national solipsism. There’s a lot of work to do, and if you do a bit of it, you can say you tried.

1. Rejects naive algorithmic approaches to originalist halacha, especially, but not limited to, Faurism.

2. Gives due weight to the authority of custom, but understands custom primarily as evidence of law and, as such, as relevant in proportion to its ubiquity and antiquity, both of which can only be demonstrated by research.1

3. Is based on a realistic (‘academic’) understanding of the composition and function of classic rabbinic texts.

4. Abominates kabbalah [not relevant in this case].

5. Is alert to the dangers of over-reading or simplistically reading halachic texts to justify correcting practices that do not need to be corrected, both as something people attempt to do today, and something that has been frequently done in the past, and, in the latter case, seeks to undo that.

6. Delights in taking too-cool-for-school halachic positions, in which it is argued that the normie practice is actually more originalist than the mekorist practice.

Anyway, here is the PDF, please like and share.

רבי יעקב זבן סנדלא רבי ירמיה זבן פיתא אמר ליה חד לחבריה יתמא עבד רבך הכי אמר ליה אידך יתמא עבד רבך הכי ותרוייהו מבעל הבית זבון וכל חד וחד סבר חבראי מתגר זבן דאמר רבי אבא בריה דרבי חייא בר אבא אמר רבי יוחנן1 לא שנו אלא בלוקח מן התגר דשקלי מיכסא מיניה אבל בלוקח מבעל הבית דלא שקלי מיניה מיכסא מותר

The Gemara relates: Rabbi Ya’akov bought sandals and Rabbi Yirmeya bought bread at a pagan fair. One said to the other: Orphan, i.e., one with no guide, would your teacher act in this manner? The other likewise said to him: Orphan, would your teacher act in this manner? The Gemara explains: Actually, both purchased these items from a homeowner, i.e., a private individual, and each one thought that the other had purchased his item from a merchant. As Rabbi Abba, son of Rabbi Ḥiyya bar Abba, said that Rabbi Yohanan said: The Sages taught that it is prohibited to buy from a gentile at a pagan fair only in the case of one who buys from a merchant, as a tax is taken from him and used for the benefit of idol worship. But with regard to one who buys from a homeowner, when a tax is not taken from him, it is permitted to make the purchase.

אמר רבי אבא בריה דרבי חייא בר אבא אילמלא היה רבי יוחנן הא זימנא באתרא דקא שקלי מיכסא אפילו מבעל הבית הוה אסר אלא אינהו היכי זבון מבעל הבית שאינו קבוע זבון

Rabbi Abba, son of Rabbi Ḥiyya bar Abba, says: If Rabbi Yoḥanan had been present at this time and age, in a place where the tax is taken from all sales, including those conducted with private individuals, he would have prohibited buying items even from a homeowner. The Gemara asks: But if so, how did these Sages, Rabbi Ya’akov and Rabbi Yirmeya, purchase items at the fair? The Gemara answers: They purchased the items from a homeowner who sells solely on a temporary basis.

After citing Rabbi Yohanan for the distinction between purchasing from merchants and from homeowners, Rabbi Abba adds another observation or argument of his own: if Rabbi Yohanan had been around to see the new situation, in which the authorities have started to levy a tax on everyone, he would have prohibited purchasing even from a homeowner. An interesting observation, but does it have any practical significance? After all, Rabbi Yohanan wasn’t there to see the new situation.

The answer depends at least partly on one’s legal theory. A positivist might argue that the rule laid down by Rabbi Yohanan, permitting buying from a homeowner, is still the law because it hasn’t been modified. What Rabbi Yohanan would or would not have said is not relevant, because he didn’t say it. This is the kind of response embodied by Faurist legal theory: if the Sanhedrin made a ruling, that ruling remains the law now unless subsequently altered by another Sanhedrin. If a new phenomenon or situation comes about on which the Sanhedrin never made a ruling, then that means there is no law, which usually implies there is no prohibition. But as we saw, the Gemara does not take that approach: what Rabbi Yohanan would have said according to Rabbi Abba implies there is indeed a prohibition.

Of course, the positivist might argue a number of ways about who actually had the (formal) authority in this situation; in other words, who represents the ‘Sanhedrin’ here. A positivist might argue that only the original law was created by the Sanhedrin, was followed by non-binding discussions interpreting that law, and it was only at the time of the ‘Sealing of the Talmud’ that the rest of the discussion was codified into law. But this fails to explain the discussion in the Gemara. If the original law banned any purchase, how did later rabbis carve out exceptions? If the original law already had exceptions built into it, why is there a question about the rabbis in the story making use of those exceptions?

Alternatively, the positivist might argue that when Rabbi Abba (citing Rabbi Yohanan) said the Sages enunciated the initial rule prohibiting purchasing from a merchant at a pagan fair, he meant the Sanhedrin made this ruling. When he refers to Rabbi Yohanan’s ruling, he means Rabbi Yohanan’s court (a Sanhedrin) upheld the distinction in his time. When Rabbi Abba referred to Rabbi Yohanan would have done, it was just his way of arguing for dropping the distinction, which was indeed dropped by the Sanhedrin of his day at his proposal—and this is why the Gemara takes this observation seriously, not only as a hypothetical or proposal, but as existing law (otherwise, the story recounted in the beginning, concerning two Sages of Rabbi Abba’s generation, would have posed no difficulty).

Such an answer obviously involves reading quite a lot of additional meaning into the text in a way which demands additional evidence. But we can come to a more straightforward explanation by switching legal theory.

The declaratory theory of Common Law posits that Common Law judges do not make law,2 they merely ‘declare’ or expound the law, applying pre-existing principles to new cases. Their precedents are also not ‘law’, but instead serve as evidence attesting to the law itself. I contend that a similar theory applies very well to halakha.

Similarly, setting aside gezeirot and takkanot, rabbis3 do not make law, they derive, expound and apply it to new cases. Their statements and rulings (unlike those of some Common Law judges) generally do not even have the formal authority of any kind of formal court, national or otherwise. Instead, they have epistemic authority, as reliable evidence of what the law is.

But in every legal system, there are two types of law (unfortunately, in English, they are both called ‘law’, which can be confusing). While ius embodies the general principles of the law, lex is a specific application of a law. Every rule of law lex has a ius principle behind it. The distinction between these two concepts is (for our purposes, at least) essentially relational; their formal status or authority (ruling, statute, national, local) of each is not crucial.

When the Sages forbade doing business at a pagan fair, their ruling was an application of that principle. Rabbi Abba, citing Rabbi Yohanan, said that the original Sages did not mean to include homeowners who do not pay the tax, not necessarily because they said so explicitly but because this was the application of the ‘real’ law—the principle (ius) embodied in their ruling. When he said Rabbi Yohanan would have applied the law differently had he been alive to see the new situation, he means the correct application of the law (to the new situation) is different from what it was during Rabbi Yohanan’s time.

In this context, the rulings of Rabbi Yohanan and Rabbi Abba are lex. The real legal rule (ius) behind these more specific rules is the principle: ‘it is prohibited to benefit idolatry’,4. This is the ‘real’ law—not that one is allowed to buy from homeowners but not merchants and not that either one is prohibited. This was ‘the’ law all along. The rabbis make different rulings at different times as different realities demand different applications of that law.

It is not surprising, therefore, that the Gemara opened the entire discussion of the Mishna on this very point (12b-13a). There, it is a mahloket between Reish Lakish, who understands the Mishna’s ratio decidendi5 as being that it is forbidden to derive benefit from idolatry, whereas Rabbi Yohanan argues that that it is not only forbidden to derive benefit, but even to cause benefit. We are not told explicitly how the disagreement was resolved (was there a formal vote?), but the way the stam and Rabbi Abba discuss the matter suggests that Rabbi Yohanan’s view came to be accepted. Unlike positivism, a declaratory theory usually doesn’t require assumptions about the presence or absence of formal authority; it just requires the availability of precedents.

This account may also explain the Gemara’s ultimate resolution of the difficulty of Rabbi Yirmiya and Rabbi Yaakov having made purchases as a pagan fair, reportedly from a homeowner. Rabbi Abba’s observation implies in their contemporary context, this is forbidden as homeowner sellers also pay a tax. The Gemara’s solution, as Rabenu Hananel and Rashi both explain, offers a type of homeowner who would not have to pay the tax and whose wares would therefore still be permitted. Far from arbitrarily carving out an exception to the previously stated law (lex), the stam is simply providing another application of the ius which is the real subject of the discussion.6

1

The Vilna edition does not include this attribution to R. Yohanan, but most manuscripts do:

The Haggadah has become a powerful text, crystalising customs and practically ruling out innovation in many areas.1 The book says you wash your hands before the appetiser meal without a blessing. The book says you eat less than an olive amount of a green vegetable. The book says you recite these words to tell the story of the Exodus from Egypt.

One such example is the question of whether to say a blessing before the Hallel that we recite at home during the Seder. You will not find any such blessing in modern-day Haggadot. Its absence ought to bother anyone who ponders it. Many people would be surprised to hear that it is actually the subject of a dispute among the Rishonim and that many medieval Ashkenazi Haggadot contain such a bracha.

Full vs. half Hallel

This discussion requires a brief recap of the different types of Hallel and when we say them. The Tosefta (Sukkah 3:2), the Talmud Yerushalmi (Sukkah 4:5) and Masechet Soferim (20:9) list 18 days and one night on which Hallel is obligatory for every individual, that night being the Pesach Seder. The Talmud Bavli (Ta’anit 38b and Erchin 10a) mentions the 18 days but no nights. Leaving aside the question of Seder night for now, we have 18 days on which Hallel is required: The first day of Pesach, Shavu’ot, the seven days of Sukkot, Shemini Atzeret, and the eight days of Hanukkah.2 Reciting “half” Hallel on Rosh Chodesh3 and the remaining days of Pesach is a custom (see Bavli Ta’anit 28b regarding Rosh Chodesh).

It has been the practice of all Jews for over a thousand years to make a bracha on the obligatory Hallels, using either the Geonic form, לגמור את ההלל, or the alternative, לקרוא את ההלל, usually attributed to Rabbi Meir of Rothenburg.4 For the days when Hallel is just a custom, most Ashkenazim say a blessing in accordance with the opinion of Rabbeinu Tam,5 while Sefardim and Teimanim do not, in line with the Rambam’s view.6 Moroccan Jews (in theory) follow the Rif’s practice of blessing only in a public recital (Shabbat 11b), while the Gr”a7 held that only the chazzan should recite the blessing.8

Land of Israel vs. Babylonia

Into which of these categories does Hallel at the Seder fall? The Yerushalmi, obviously a source from the Land of Israel, appears to view it as an obligation like the daytime Hallels. So do the Tosefta and Masechet Soferim, whose Palestinian origins are a matter of academic discussion. The Bavli appears not to consider it mandatory. This possible geographical split is consistent with the most original Chazalic source from the Land of Israel available to us, namely the Mishna (Pesachim 10:5-8):9

ה. רבן גמליאל אומר כל שלא אמר שלשה דברים אלו בפסח לא יצא ידי חובתו פסח מצה ומרורים. פסח על שם שפסח המקום על בתי אבותינו במצרים מרורים על שם שמררו המצריים את חיי אבותינו במצרים מצה על שם שנגאלו לפיכך אנו חייבים להודות להלל לשבח לפאר לרומם לגדל למי שעשה לנו את כל הניסים האלו והוציאנו מעבדות לחרות ונאמר לפניו הללויה.

ו.עד היכן הוא אומר בית שמאי אומרין עד אֵם־הַבָּנִים שְׂמֵחָה ובית הלל אומרין עד חַלָּמִישׁ לְמַעְיְנוֹ־מָיִם וחותם בגאולה.

ז. רבי טרפון אומר אשר גאלנו וגאל את אבותינו ממצרים והגיענו הלילה הזה ואינו חותם רבי עקיבה אומר כן ה’ אלקינו ואלקי אבותינו יגיענו לרגלים הבאים לקראתנו בשלום שמחים בבנין עירך וששים בעבודתך לוכל מן הפסחים ומן הזבחים אשר יגיע דמם על קיר מזבחך ונודה לך על גאולתינו ברוך אתה ה’ גואל ישראל.

ח. מזגו לו כוס שלישי, מברך על מזונו. מזגו לו כוס שלישי מברך על מזונו רביעי גומר את ההלל ואומר עליו ברכת השיר.

It is possible to read this as a mere description of what people did. But the simplest interpretation is that the Mishnah is codifying an obligation to praise Hashem for the miracles of the Exodus, specifically with the word “הללויה,” and detailing how to do this: Recite the first half of Hallel over the second cup until “חַלָּמִישׁ לְמַעְיְנוֹ־מָיִם” (according to Bet Hillel), conclude with ברכת הגאולה, eat the matza (and, in normal circumstances, the Pesach offering), say birkat hamazon over the third cup, and combine the fourth cup with the remainder of Hallel.

We noted that the first night of Pesach appears in the lists of obligatory Hallels in the Tosefta, the Yerushalmi and Masechet Soferim but not in the Bavli. We could posit that this Hallel was viewed as an obligation by Land of Israel authorities at the time of Chazal but not by those in Babylonia. This would not explain the absence of a bracha in the vast majority of Haggadah manuscripts from the Cairo Genizah reflecting the Palestinian rite, as we will discuss later. But it would enlighten us as to why the Babylonian tradition, which influenced Jewish practice for centuries to come, did not endorse such a benediction.

However, this notion is not explicit at all in the writings of the Geonim who justify the absence of a blessing. Most of them focus on what can best be described as technicalities.

Geonic explanations

Rav Tzemach Gaon and Rav Amram Gaon explain that since we split the Hallel, saying one portion before the matza and one portion afterwards, the blessingלגמור את ההלל is inappropriate.1011 Rav Hai Gaon argues Hallel at the Seder is in the form of “shira” (song) and not “k’riyah” (recital), and therefore a blessing is inappropriate. His basis for this is the Mishna we quoted above: “אנו חייבים להודות להלל לשבח...ונאמר לפניו הללויה”. The obligation, he implies, is to express our thanks through Psalmic song and not to perform a formal recital.12 An additional support for this is from the use of the verbs קורא and מקרא for Hallel recitation in Rosh Hashanah, Sukkah, Taanit and Sotah, whereas Pesachim only uses the words אומר or גומר.

Rishonim mostly run with the first Geonic explanation. These include the Tur,13 Maharam Chalava, the Ra’avyah, the Rosh and the Tosafot. The Ritva cites both theirs and Rav Hai’s. The Abudraham and Maharam Chalava added that one should follow the common custom when there is a doubt (that custom, for them, being not to bless), while the Tur, similarly, opposes a blessing on the basis of safek brachot lehakel.

Assessing the arguments

Let us address the explanations of the Geonim and the Rishonim one by one. The split in the middle of Hallel is indeed a problem; brachot are normally said on a mitzvah that is about to be completed in its entirely with no break in between.14 The Tosafot and the Rashba say explicitly that were one to recite Hallel at home without a break, for whatever reason, one would indeed say a blessing on it.

However, this argument is difficult. The Geonim who employ it acknowledge that Hallel at the Seder is worthy of a bracha, but because of the way Chazal instituted it, the bracha cannot be made. Furthermore, according to Tosafot and the Rashba, one who says Hallel in an imperfect way can indeed make a bracha!

Rav Hai Gaon’s distinction between “shira” and “k’riyah” is also difficult because the Tosefta (Pesachim 10:8) uses the word לקרוא to refer to Hallel at the Seder. The arguments on the basis of custom or safek brachot fail to tackle the issue itself.

The Rishonim in favour

We turn now to the few Rishonim who do endorse a bracha. These include the Or Zaru’a, the Meiri, R’ Yitzchak Bar Avraham of Shantz (the Ritzb”a, quoted in the Shibolei HaLeket), and Rabbi Yehudah ben Yom Tov15, all of whom had an elegant solution to the problem of the split Hallel: saying the blessing לקרוא את ההלל on the initial part, before the matza, and לגמור את ההלל on the later section, starting לא לנו. The Or Zaru’a expressly related this structure to the concerns we saw in the Geonim, noting that לגמור was inappropriate for the first section since one is about to say only two chapters and then take a long break. Rabbi Meir of Rothenburg (according to the writings of his student, Meir HaKohen) called for the blessing לקרוא on the Hallel both before and after the seuda, on the basis that the interruption ruled out לגמור entirely. The Ramban would apparently only say one bracha, לגמור, before the first section (see Chiddushei HaRamban Pesachim 117a and the Ritva’s Commentary on the Haggadah, which testifies to the Ramban’s practice). The Ran follows a similar line of argument to the Ramban.

Thus, one of the most significant disagreements is whether the split in Hallel rules out making a blessing at all or merely makes לגמור a bad choice for the first half.

The central Yerushalmi

Another question at the heart of the dispute is a key Yerushalmi in Brachot (1:5):

אלו ברכות שפותחין בהן בברוך. כל הברכות פותחין בהן בברוך ואם היתה ברכה סמוכה לחברתה כגון ק”ש ותפילה אין פותחין בהן בברוך. התיב רבי ירמיה הרי גאולה. שנייא היא דמר רבי יוחנן הלל אם שמעה בבית הכנסת יצא. התיב רבי אליעזר בי רבי יוסה קומי ר’ יוסה והא סופה. א”ל שתים הנה אחת לבא ואחת לשעבר.

The anonymous Yerushalmi states that all blessings begin with the words ברוך אתה ה’ unless they are adjacent to another blessing (or, as we will see, another thing), such as the brachot that following the first bracha of Kriyat Shema and the Amidah. Rabbi Yirmiyah challenges the principle from the example of גאולה, which from the context must mean the blessing ברוך אתה ה’ אלקינו מלך העולם אשר גאלנו recited after the first half of Hallel in the Seder, which does begin with ברוך even though it ought to be a ברכה סמוכה לחברתה.16

The Yerushalmi brings a defence of Rabbi Yochanan’s original statement, arguing that אשר גאלנו is an exception. One who heard Hallel at the synagogue has fulfilled his obligation and will say only the blessing אשר גאלנו at home, without Hallel. It follows that אשר גאלנו and what appears before it are not an inseparable unit, and therefore אשר גאלנו is sufficiently independent to always begins ברוך.

How to interpret this passage is a mahloket Rishonim. According to the Ramban, the Ran, the Meiri and others, for Rabbi Yirmiyah’s kashe to work, there must be a bracha recited before Hallel that turns אשר גאלנו into a ברכה סמוכה לחברתה. It then makes sense to ask why אשר גאלנו starts with the word ברוך.

However, the Ra’avyah dismissed this as a misunderstanding:

וזהו פתרונו, התיב ר’ ירמיה הרי גאולה דליל פסח בא”י אמ”ה אשר גאלנו, שאינה התחלת הדבר והוי סמוכה לחברתה, כדמוכח בירושלמי לקמן דאע״פ שאין חתימת ברכה לפניה רק שאינה התחלת הדבר, שאמר שום דבר לפניה, קורא אותה סמוכה לחברתה, ומעתה פריך שפיר הרי גאולה שפותחת ברוך, ומשני שנייא הלל שאמר קודם ברכה דגאולה שאם שמע בבית הכנסת כל הקידוש והסדר ואגדתא והלל משליח ציבור עד ברכה של גאולה והיה הולך לביתו ומתחיל כוס שני בגאולה ובוצע על הסדר ואוכל יצא.

According to the Ra’avyah, ברכה הסמוכה לחברתה means not that the blessing is adjacent necessarily to another blessing, but that it follows something else. The mere fact that Hallel precedes ברכת הגאולה makes the latter into a ברכה הסמוכה לחברתה. Rabbi Yirmiyah’s kashe, therefore, is that ברכת הגאולה begins with ברוך despite having two chapters of Hallel immediately before it.

This is a difficult interpretation. The intuitive meaning of the phrase, based on the word “לחברתה” (literally “its/her friend”) is a blessing that is adjacent to something of the same type, namely another blessing.17 Furthermore, the Tosefta (Brachot 1:8) makes the meaning clearer still, clarifying that לחברתה means to another blessing:18

[כל הברכות כלן פותחין בברוך] חוץ מברכה הסמוכה לשמע וברכה הסמוכה לברכה אחרת, שאין פותחין בהן בברוך, ואין עונין עם המברך.

Historical reality

The Ra’avyah’s argument, however, has one big advantage: Its conclusion appears to fit with the actual practice of the Land of Israel. While Rabbi Louis Ginzberg,19 Safrai & Safrai20 and Rabbi Yehoshua Buch shlit”a21 all argue that the Jews of Eretz Yisrael blessed on Hallel at the Seder, based on the Yerushalmi above, Professor David Henshke observes that no records of such a bracha exist in ancient Haggadot.22 The only explicit early reference to saying a bracha before Hallel on the first night of Pesach is in Masechet Soferim (20:9) in the context of the synagogal recital of Hallel:

מצוה מן המובחר לקרות הלל בשני לילות של גליות ולברך עליהן ולאומרן בנעימה לקיים מה שנאמר (תהלים לד:ד) “ונרוממה שמו יחדיו” וכשהוא קורא אותו בביתו אינו צריך לברך שכבר בירך ברבים.

This practice emerged because congregants were unable to recite Hallel themselves (see Tosefta Pesachim 10:8) — an understandable situation in the days when books were rare.23

The inference from Soferim is that one who did not bless in shul needs to do so at home. In the Geonic era in Bavel, where the custom of saying Hallel at shul on Seder night had ceased, some applied this inference practically, to the fierce opposition of the Geonim, Henshke argues. Rav Hai Gaon described not saying a blessing as מנהג כל ישראל, ruling that one who attempted to do so should be silenced. According to Henshke, the Rishonim who endorsed making a bracha were not following a custom but rekindling an idea that the Geonim had strongly rejected, with some even trying to reinterpret the Geonim in accordance with their opinions.24 Many medieval Haggadot from France and Ashkenaz contain one or two brachot on Hallel25, reflecting the views of these Rishonim.

The Tur, as we saw, rules in accordance with the Geonim who oppose the bracha on the basis of there being a safek. He also praises the practice of reciting Hallel in shul to avoid the need to bless at home. The Bet Yosef does not examine the issue further, observes that the universal custom is not to bless, and does not even mention it in the Shulchan Aruch. The Mishnah Berurah (480:1) address it only in the context of the second half of Hallel, ruling that לא לנו is said without a bracha. It seems heavyweight Rishonim who opposed the bracha or omitted any mention (notably the Rif and the Rambam) had successfully shot down the minhag that appeared to be lingering in Ashkenaz in the Medieval period.

Forced explanations

As we saw earlier, the Geonic arguments against the bracha do not sit comfortably. Hallel around the table on Seder night is one of the most poignant rituals of the year, and the structure that Hazal gave it is clearly intentional and dignified. It is hard to argue that a blessing is incorrect because of a mere technicality or because it is “only” song.

Reciting Hallel in shul is a strange workaround: While many people in ancient times would have heard Hallel in synagogue, this was a suboptimal solution for the incapable. Plus, if Hallel at shul requires a bracha, how much more so should Hallel at home. The Rishonim that used this argument were probably leaning on a more established minhag (and an explicit statement in Masechet Soferim) to circumvent a logical problem. While the custom began as a practical step, it turned into a fixed custom that became common in the Sefardi world, and later among Chassidim and in modern Israel.

Fusion of customs

There is an important historical point that informs this entire topic. According to Henshke, at the time of Rav (175–247 CE), no one was saying a bracha before any Hallel at any time of the year. Abaye, who lived in Bavel around 100 years later, introduced the practice.26 The Mishnah in Pesachim 10:8, which we quoted above, and Sukkah 3:11 mentions only a bracha after Hallel.27

According to this, the chronology may have been as follows: The Jews of the Land of Israel at the time of the Talmudim did not bless on Hallel at the Seder, or on any Hallel. Abaye introduced a bracha on Hallel in general, but apparently only for communal recitations and not at the Seder. This distinction might have been because of a belief that Hallel in the Haggadah was not a full obligation, as we saw from its omission in the list in Erchin.

At a later point, those in the Land of Israel that said Hallel in shul on the first night of Pesach adopted the bracha under the influence of the Babylonian practice of saying the benediction on fixed, synagogal Hallel. Masechet Soferim, which chronicled this hybrid practice, then acted as a springboard for those claiming that one who did not recite Hallel in shul should make a blessing during the Haggadah.

We are still left struggling to explain an enigmatic Yerushalmi that many heavyweight Rishonim interpreted in a way that appears to contradicts the likely historical reality in the Land of Israel. We are also left pondering the fact that the pro-bracha Rishonim are almost entirely Ashkenazi and many are concentrated in northern France (Rabbi Yehudah ben Yom Tov, Ritzb”a), western Germany (Rabbi Meir of Rothenburg) and Catalonia (Meiri, Ramban). It is possible there was an old minority tradition that influenced them to pasken in favour of making a bracha.

The almost universal practice today of not making a bracha appears to have historical basis. However, one cannot ignore the illogical nature of blessing on other Hallels — according to Ashkenazi practice, even when Hallel is only a minhag — but not at the Seder, when the Mishnah makes the obligation of reciting Hallel clear.

This would not be the first time that a historical process has led to inconsistency in brachot.28 The premise of this blog is that we today have the power to correct this. However, much more than the question of authority, this case raises interesting and thorny issues regarding the best way to apply Chazalic precedents.29

27

As Henshke points out, the Mishnah manuscripts all have the word אחריו, and the word was later removed in Babylonian versions. Here, for example, is Kaufmann:

Today we are fortunate enough to be able to read accessible works collating and presenting this scholarship, even though it is still evolving and there is much still to be clarified and discovered. At the same time, out in the field, kabbalah is once again ascendant, returning with a vengeance after a brief lull following WW2. The compromise position of orthodoxy according to which kabbalah is neither to be promoted nor attacked has all but collapsed and the free proliferation of kabbalistic teaching has reached an intensity not seen since the mid seventeenth century.

Opponents of Zoharism are typically greeted with a mixture of gaslighting and psychological terrorism (this is not to mention those who are victims of actual violence, a not uncommon phenomenon). They are told that they cannot have an opinion unless they dedicate years of their life to plumbing the depths of kabbalah, but also that they are not allowed to do this. The esoteric nature of the doctrines does not bind those who promote it; only those who critique them. If you identify a problematic or blasphemous text, you will be told that you have misunderstood it, but you will not be provided with the correct interpretation.

However, there is one thing about which the defenders of kabbalah are correct. The cancer has spread so thoroughly that, at first sight, it appears impossible to remove it without killing the patient. Many defenders of kabbalah in fact know perfectly well it is fake but have a justified fear of what will happen if they upset the applecart. However, as believing Jews, the correct response to this problem is not resignation, but to arm ourselves with as much knowledge as we can, so as to, in due course, perform keyhole surgery.

There is already a grass roots movement in Israel fighting Zoharism, initiated by Rabbi Shaulov, and promoted by our friend Rabbi Mordechai and Professor Tzaddik. I can attest to a surprising number of ordinary Israelis who have taken upon themselves the daunting task of purging their practice and worship of kabbalistic elements, with no institutional help at all. The success achieved by such simple means is testament to the shameful dereliction of duty by the Modern Orthodox rabbinate, but also tells us that victory is not a forlorn hope. At present, the popular opposition is not as precise in its scholarship as one might ideally hope (and, in the case of Prof. Tzaddik is unfortunately tied to his own rather idiosyncratic agenda), which is all the more reason for you to crack the books. For the most part, academic scholarship is carried out by people like Yehuda Liebes or Moshe Idel who are sympathetic to kabbala, but it is precisely through their research that we can see Zoharism for the untameable force that it is. Knowledge is power.

Posts

Podcast series: Halacha and Kabbalah (more to come)

On other blogs

Modern Jewish History Series (focuses on the development of Zoharism into Sabbateanism and beyond).

Bibliography

Key readings and sources on the Zohar and history of kabbalah:

G. Scholem, Sabbatai Tzvi: the mystical Messiah

B. Huss, The Zohar: Reception and Impact

Y. Liebes, Studies in Jewish Myth and Mysticism

יעקב כץ, הלכה וקבלה

משה חלמיש, הקבלה בתפילה בהלכה ובמנהג

ר’ יהודה אריה ממודינא, ארי נוהם

ר’ יחיא קפאח, מלחמות השם

The Oral Torah (at least, its halachic aspect) is definitions. I know the written Torah tells me to dwell in a sukkah for a week every Tishri, but what is the definition of a sukkah? What are the minimal requirements? What does it mean to dwell? Under what circumstances might I be absolved from dwelling in the sukkah? And those branches and fruits I’m supposed to take and rejoice with... What species? What sizes? What level of freshness? How do I do the rejoicing? And so on so forth – the Oral Torah is all about defining the terms needed to fulfil (or avoid violating) Jewish law.

While this answer may not cover all bases, I think it’s a pretty good one. God commanded the Jewish people to fulfil the mitzvot of the Torah; He also gave us the definitions essential to fulfilling them.

Now, it is not the case that halacha rigidly or fully defines the terms of every possible mitzwa. All law is finite, and all laws raise new questions and edge cases. For example, the Torah puts many commandments in terms of day and night, but the whole day is not neatly divisible into day or night – there are certain times of day which are doubtful. As a result, some Sages defined a Bein Hashemashoth period which is technically neither day nor night but safek (doubtful). Other Sages reasoned that the sign defining the beginning of night-time – three stars, not including Venus – also works vice-versa to define the end of daytime, meaning Bein Hashemashoth actually only lasts as long as it takes for the third star to go from invisible to visible. Legal lacunae lead to some subjectivity, as do mahlokoth (disputes). But for the most part, night and day are a sufficient definition for us to understand objectively with the senses God gave us.

In many areas there is a mixture of more or less subjective definitions, which may leave room for periodic updating. There is one area of halacha where the relevant definitions are particularly driven by the common usage of society: commerce. As the Rambam writes in hilchot mehira (26:8):

וזה עקר גדול בכל דברי משא ומתן הולכין אחר לשון בני אדם באותו המקום ואחר המנהג. אבל מקום שאין ידוע בו מנהג ולא שמות מיחדין אלא יש קורין כך ויש שקורין כך עושים כמו שפרשו חכמים בפרקים אלו:

This is a fundamental principle: With regard to all matters of commerce and trade, we follow the commonly accepted meanings of the terms used by people of that place, and the local business customs. When, however, there are no local business customs or commonly accepted meanings of terms, and instead, one person will have this intent and another, another intent, we follow the guidelines explained by the Sages in these chapters.

How received tradition was originally passed down

Where do the definitions come from? As I just said, Judaism holds that the definitions were originally provided by God, and that when the Sages were composing their mishnayot, and then ultimately the Mishna, they were essentially summarising the tradition they received about those definitions. I say ‘essentially’ because I don’t think every definition revealed at Sinai made its way all the way through two destructions and two exiles, and Hazal hint at this possibility themselves. Some gaps must have been filled by the different Sages at different times using their own reasoning (sevarah) given whatever textual or other evidence may have been available to them. They discussed and debated them; around some points, consensus emerged, while on other points, disagreement remained.1

This sort of filling in the gaps was quite natural anyway. As I said above, law is always incomplete. Even if all definitions were passed down fully and completely in the mesorah, those definitions could not possibly answer every halachic question or decide every case. Every rule can give rise to new edge cases, real or theoretical, and new edge cases can lead to new precedents in the form of rulings or teachings, themselves usually based on earlier precedents, trying to answer the new questions by analogy.

Before the Oral Torah had compositions (written or unwritten), each generation had knowledge essentially limited to what had been passed down to it. Extant teachings were probably anonymous. Each sage would rule in accordance with the traditions and teachings he had learned and use his sevarah to apply these together with the written Torah. But direct chain of precedent only ever reached one or maybe two generations back. Here, I am not saying the chain of the mesorah didn’t reach back to Sinai, but that those applying precedents were applying teachings they themselves had learned from at most two generations back. They weren’t applying specific, spelled-out opinions from specific Sages many generations back; with few exceptions2 they weren’t citing precedents from books.

Since the mishnayot began to record specific opinions and mahlokot, and even more so when they began to be written down, the chain (from that point on) became more clearly mapped as it lengthened. We know, today, that when we follow the Shulhan Arukh’s interpretation of the Rosh’s understanding of a sugya in Hullin, we’re ultimately trying to follow a ruling recorded in the Bavli (regardless of what that ruling was based on). The Bavli, in this case, is the primary precedent, while the diverse later links in the chain are derivative precedents. Too often, people forget this, and act as if Aharonim or Rishonim are the ones giving us the whole teaching, and the text which they are interpreting does not even bear checking – and if one does check, one must bend the text until it fits that later interpretation. And all this even when the text we have is the exact same that Rishon or Aharon was interpreting.

Primary and derivative precedents

The halacha of today is overwhelmingly based on the precedents laid down by Hazal. Not because they were decided by the vote of a Sanhedrin (some of them may have been, but not many), but because they are our best evidence of the definitions handed down in the mesorah from Sinai. However, Hazalic precedents are mediated through later precedents. I call the precedents at the base of the chain (those precedents which are overwhelmingly Hazalic) ‘primary precedents’, and precedents which derive from them ‘derivative precedents’.

In any case, as I said, some definitions come from Sinai, and we certainly have no authority to change them. If people do change them, intentionally or unintentionally, we should do our best to restore the original definition.

A good example is the definition of the Five Grains (חמשת מיני דגן). Their definition matters for the laws of hadash, of taking hallah, for berachot, and for hametz on Passover. These grains are never described in any way which might be described as a subjective standard. Moreover, the repeated and unitary nature of the mesorah means there’s also no case for subjectivity can be made based on there being different mesorot. In this case it goes further – the Talmudic discussions address how this group is defined in the first place, and it’s an objective test. However, it’s a test which is widely ignored today.

The Mishna in Hallah (1:1-2) states3

חמשה דברים חיבים בחלה, החטים והשעורים והכסמין ושבלת שועל ושיפון. הרי אלו חיבין בחלה, ומצטרפין זה עם זה, ואסורין בחדש מלפני הפסח, ומלקצר מלפני העמר. ואם השרישו קדם לעמר, העמר מתירן. ואם לאו, אסורין עד שיבא העמר הבא:

האוכל מהם כזית מצה בפסח, יצא ידי חובתו. כזית חמץ, חיב בהכרת. נתערב אחד מהם בכל המינים, הרי זה עובר בפסח.

Five species [of grains] are subject to [the law of] hallah: wheat, barley, kusmin, shifon, and shibbolet shu’al. These are subject to hallah, and [dough made from different types of these grains] are accounted together one with another [as one quantity]. And their “new” [harvest] is prohibited prior to Pesah, and [they are subject] to [the prohibition of] reaping prior to the Omer. If they took root prior to the Omer, the Omer permits them. If not, they are prohibited until the next Omer has come.

If one has eaten of [these five] on Pesah an olive-size piece of matzah, he has fulfilled his obligation. [If he ate on Pesah] an olive-size of piece of hametz [made of these grains], he is liable for kareth. If one of these [grains, having become leavened,] became mixed with any other species, one must remove it on Pesah.

What are the latter three grains? I get back to that below. I deliberately left them untranslated. B. Pesachim (35a) states the following:

תנא: כוסמין — מין חיטין, שיבולת שועל ושיפון — מין שעורין.

כוסמין — גולבא, שיפון — דישרא, שיבולת שועל — שבילי תעלא.

הני אין, אורז ודוחן — לא.

I separated the lines to highlight three points in this Gemara. Firstly, all five grains are actually subtypes of wheat and barley. There are other sources which identify kusmin, shifon, and/or shibolet shu’al as closely-related to wheat or barley or to each other, and ultimately reducible to just two or potentially two grains (M. Kilayim 1:1 Yerushalmi Hallah 1:1).

Secondly, the three grains I left untranslated above are identified by their Aramaic names. In other words, these grains definitely refer to specific types, and Hazal make an effort to preserve the correct identification – undermining the notion that these are just examples illustrating some underlying subjective concept which may be understood differently in different societies. The Five Grains are the same across Eretz Yisrael and Bavel.

This is not to say that there is no underlying concept at all, and this brings me to the last part of the Gemara: ‘these grains – yes, rice and millet – no’. At this point the question is: are the five grains an exhaustive list or is there some definition which these five happen to fall under while others are excluded?

Although the Bavli (Pesachim 35a) ultimately says the same thing, the Yerushalmi (Pesachim 2:4) paints the fullest picture: the sages carried out a test and found that ‘there are no types [of grain] which can be made into leavened or unleavened bread [the Bavli simply uses the expression ‘leavening’] but the five grains, and all other grains merely [produce a kind of rise in the dough which produces] a stench’. Hazal clearly bring down objective standard. The legal category of grains which are covered by the laws of Hallah and Passover is defined by specific chemical properties.

Even though R. Johanan ben Nuri’s opinion differs from the rabbis regarding several grains, his is not a subjective definition either. Both Talmudim agree that R. Johanan bN also has a concept of ‘leavening’, he merely disagrees on the results of the test or the exact chemical properties involved. But he does not take the view that the category of ‘grains which come to leavening’ is subjective, being determined, for example, by which crops are important to human nourishment in contemporary society.

One important implication is that the list of Five Grains is not exhaustive. There is no way of interpreting the 5 kinds as an exclusive list of specific types of grain which does not negate the Gemaras’ presentation of the sugyah. We know today what leavening is at the molecular level: it involves gluten. One species of grain containing gluten which would have been unknown to Hazal is rye, which originates in the wet climate of northern Eurasia.

Correcting definitions

The most widespread identification of the five grains today is that of Rashi. The problem is he identifies shibboleth shu’al with oats, which are neither a type of wheat nor a type of barley, and shifon with rye, which Hazal could not have been familiar with. As just mentioned, rye has gluten and therefore should be classed together with the Five Grains4, so that doesn’t make such a huge difference. Oats, on the other hand, are naturally devoid of gluten, so they are excluded by Hazal’s test.

Rashi’s is not the sole identification of the Five Grains, however. the Aruch, Rambam, and the Meiri also offer identifications, none of which include oats. The Rambam identifies shibboleth shu’al as two-rowed barley.

These identifications are all derivative precedents. They interpreting the Mishna based on the mesorah (and other relevant information) available to each hacham. None of them holds formal authority in this situation, nor do they claim to have any. They are merely clarifying, translating the Mishna, in the same way the Bavli had done earlier. If Rashi or any of the others had had formal authority, he would be right by definition; since he has no formal authority, it is possible for him to be mistaken!5

• What parts of the Talmud Bavli did the Rambam really say are binding and what is the role of national acceptance?

• How this limits the extent of the problem of the authority of the Babylonian courts

• Why did the Rambam write the Hakdamah in this way?

• האומנם, לפי הרמב”ם, התלמוד הבבלי הוא ספר החוק (והאם) מפני שהסכימו עליו כל ישראל?

• “פשט הדבר בכל ישראל”: הרמב”ם על אודות הסכמה על גזרות, מנהגות ותקנות

במחקרו עוסק פרופ’ לורברבוים בתחום המשפט העברי, תורת המשפט, הפילוסופיה של ההלכה, ומחשבת ישראל. במוקד מחקריו עומדים התיאוריה המשפטית של ההלכה והקשר בין משפט עברי והלכה לבין פילוסופיה ותאולוגיה בתקופות השונות, במיוחד בתקופות חז”ל והראשונים.

ראשי פרקים

0:57 הקטגוריות ההלכתיות של הרמב”ם

9:19 תפקיד ההסכמה לחקיקת חכמים וההבדל בין הסכמת רוב העם להסכמת כל העם

27:45 האם התלמוד הבבלי הוא ספר החוקים של ההלכה?

42:50 באיזה בית דין מדובר? מהי סמכות חלקי התלמוד שלא מהווים חקיקה?

52:10 האם ההקדמה תואמת את ההיסטוריה?

1:01:08 למה ההקדמה כה עמומה? למה טעו רבים כל כך בפירושה?

ר''ל במצה וסוכה וכ''כ בהלכות גדולות וספר העתים בשם הגאון וכ''ה בז''ח נ''א ג

I contend that the only thing here which can be meaningfully called a source is the Zohar and thus I wrote that the Gra ‘enshrined the supremacy of the Zohar over the Talmud in practical law through his ruling on tefillin on Hol haMoed’. This is, without doubt, a hostile characterisation. The Gra’s project was to resolve the epistemic crisis that had plagued Judaism since the public revelation of the Zohar in the late 1400s by attempting for the first time a complete integration of halacha and kabbalah. By ruling according to the Zohar against (a) a firmly established, and emphatically emphasised Ashkenazi tradition, (b) the majority of Rishonim, (c) the natural understanding of a significant number of primary sources, and (d) without any primary talmudic source at all, he did not, according to his own self-conception, enshrine the authority of the Zohar over the Talmudic corpus, but as supreme within the Talmudic corpus. To me, that is a distinction without a difference (indeed, maybe on reflection it’s worse), but it’s a distinction with a difference to many others, and there is no purpose in pointlessly antagonising anyone.1

However, the premise of this argument does have to be demonstrated. Is it, indeed, true that the other sources cited by the Gra are invalid? We will focus on just one of them here, namely ‘Sefer haIttim in the name of the Gaon’. Avid MekorMayimHayim commenter, Happy had this to say:

Similarly, Maskil Binah argues that the opinion of the Sefer Haitim in the name of the “Gaon”, cited by the Rosh, cannot be taken seriously, since we cannot identify this Gaon. Again, I have no idea what to make of this argument, but I’ll award him half a point for effort.

Half a point from Happy is high praise indeed, but I fear that his learned audience have not been entirely well served by this presentation. The fact that the Gaon cannot be identified is part of the problem, as we shall see, but the problem itself is both far more obvious and profound. The passage quoted in the Rosh (the relevant section of Sefer haIttim, as with most of the work, does not survive) reads as follows:

הלכה אסור להניח תפילין בשבתות וי"ט דכתיב ושמרת את החקה הזאת ואסור להניח תפילין בחול המועד. וסומא פטור מן התפילין והציצית דכתיב וראיתם אותו פרט לסומא

The bolded section states that a blind person is exempt from the mitzvot of tefillin and tzitzit because of the verse וראיתם אותו. This is interesting because, while the first of these exemptions comes out of nowhere at all, the second directly and explicitly contradicts a drasha of Hazal found in Bavli Menahot 43a, Bavli Shabbat 27b, Bavli Zevahim 18b, Sifrei 116, Bemidbar Rabah 17 and Midrash Tanhuma. The ‘drasha’ that appears in the Rosh is practically the definition of מגלה פנים בתורה שלא כהלכה. It’s like finding a source that says, ‘string eruvim are OK, and Shavuos has to be on Sunday’. Obviously, if anything, it’s a proof against the contention.

I hear though, in the distance, our yeshivish friends exclaim: ‘the wicked Maskil has gone so far as to cast aspersions on Rabi Yehuda ben Barzilai, author of Sefer haIttim, who, having just consulted Google, I see is a major early Rishon’. Such, however, is not at all my intention. There are basically three options here:

1. An un-named Gaon decided Hazal’s drasha was wrong, made his own one, wrote it in a teshuva and this was copied accurately first into Sefer haIttim and then by the Rosh.

2. The Sefer haIttim had a faulty text of a Geonic teshuva

3. The Rosh had a faulty text of Sefer haIttim

All signs point to (3). Let’s see how.

First of all, is it possible for a fake girsa in a Geonic teshuva to have been implanted into a version of Sefer haIttim before the Rosh read it? It’s definitely possible. A rough date for the completion and ‘publication’2 of Sefer haIttim is 1090. The Rosh arrived in Spain sometime around 1290. Two hundred years is a long time, and one thing we know is that halachic works that were used frequently (as opposed to canonical works like the Talmud) were considered modular during this period. The most extreme example of this is the Seder of Rav Amram Gaon. As Goldschmitt points out in his introduction, there’s not a single manuscript of the Seder that doesn’t have multiple later insertions, and, even if a passage appears in every manuscript, you can’t rely on it being original. There’s no need to posit anything so extreme for Sefer haIttim, but it was widely used around the Iberian peninsula, and it is likely that Castilian communities adapted it somewhat to match their customs.

Possible, though, is not the point; is it plausible? Is it really likely that someone would get so het up about tefillin on Hol haMoed that they would fake a geonic teshuva? Well, yes, because it happened. Here is Shaarei Teshuva 266:

First, some background about Sha’arei Teshuva. It’s a collection of Geonic teshuvot that pops up in the Middle Ages with no direct evidence of who produced it or where. If I am not mistaken, it is the first work of its kind we know of that collects a large number of teshuvot from different Geonim together and arranges them thematically. It is also important because it contains a number of teshuvot that provide evidence of distinctively kabbalistic doctrines many centuries before the revelation of the Zohar. The catch is that these teshuvot are forgeries.

From Scholem onwards, the academic convention has been to ascribe these forgeries to none other than the evil genius of medieval Judaism, Moshe de Leon. I was a bit sceptical of this because it seems to be too ridiculous to be true. In kabbalah scholarship of the 20th century, De Leon became a kind of reified avatar of a circle of dozens of Castilian kabbalists, with all their achievements ascribed by convention to him until he became a kind of mythical figure. However, Avishai bar Asher thinks the ascription is legit. For our purposes, it doesn’t matter too much whether it was him or another one of the gang. The point is that the collection was made, at least in part, for the purpose of creating a fictitious backstory for the revolutionary doctrines of the Castilian kabbalah, and those teshuvot it contains that cannot be verified from elsewhere can only be relied on with extreme caution.

However, that doesn’t automatically prove that this particular teshuva is doctored. To demonstrate that, we need to look at multiple layers of evidence. First, the teshuva reads a bit weirdly. Rav Sheshna Gaon explains why tefillin are to be worn on Tisha b’Av and then out of the blue without explanation says they are forbidden on Hol haMoed. Secondly, if this is a real teshuva in circulation, it’s a bit surprising that none of the Rishonim who discuss the topic ever quote it. It’s also worth noting that while a significant number of Rishonim argue that it is not required to wear tefillin on Hol haMoed, the position apparently maintained in this teshuva that it is forbidden, is nearly unique before the Zohar. Thirdly, this exact same teshuva appears elsewhere in Sha’arei Teshuva itself without the final line about Hol haMoed. Fourthly, and here is the clincher, the teshuva appears in Shibalei haLeket, published a few decades before de Leon’s active period without the Hol haMoed part. Moreover, it’s very clear that the Shibalei haLeket didn’t have this line in his version, because straight afterwards, he says אבל להניח תפלין בחולו של מועד נסתפקתי בזה גם אני זה כמה ימים and then provides a familiar analysis with no geonic support mentioned.3

So, we see that doctoring geonic teshuvot to support the Spanish minhag of not wearing tefilin on Hol haMoed was a thing. But what kind of person would doctor a teshuva with a big glaring mistake like the one that supposedly appears in Sefer haIttim? Well, we know that, too. The circle of Spanish kabbalists who produced the bulk of the work that was eventually published as the Zohar in the 16th century were not ignorant men by any means, but their imaginative powers were quite significantly in excess of their propensity to check things up. As a result, the Zohar contains a number of surprisingly basic errors (such as that a non-Cohen is invalid to slaughter a sacrificial animal, or that the parsha divisions were given by Moshe Rabbeinu), expounds biblical verses that don’t exist but are garbled compounds of two verses, and contains conversations between Talmudic Rabbis who could not possibly have met each other. Often, it’s not clear whether the author of a given Zoharic passage misunderstood the source he is riffing on, misremembered it, or just doesn’t really care. What presumably happened with this teshuva is that the author remembered the opinion that a blind person is exempt from all mitzvot and mixed it up with the tzitzit drasha and created his own little golem.

Which, of course, brings us to the biggest forgery of all, the Zohar itself. Here’s what the Zohar has to say about our topic:

אי ההוא עבד דחי חותמא עילאה דמלכא בגין ההוא חותמא דאיהו עביד ודאי בר קטולא איהו ההוא עבדא בגין דעביד קלנא בחותמא דמלכא ולא חייש ליקריה. ובגין כך אסור לעמא קדישא לדחיא חותמא דמלכא עילאה דשרי עלן בגין דיוקנא דא דאנן עבדין.

האי במועד ובחולו של מועד וכל שכן בשבת דכלא שריא עלן שבת דמעלי שבתא תפלה של יד. שבת דיומא תפילין דרישא.

Why would anyone say this? The relevant background is as follows. Spanish Jewry were of the opinion that they were the most elite, intellectual and accomplished section of nation of Israel since the golden age of David and Shlomo. However, by the late 13th century, Spanish Jewry had fallen on hard times and the Jews of the barbarian lands to the north had, quite unexpectedly, emerged as a rival centre of Talmudic expertise. When the Rosh arrived in Toledo and was acknowledged as the preeminent rabbinical authority, not all the locals liked it. When he had the temerity to suggest that some local customs should be modified … some of them are still sore about it! What do you do if you are a resentful kabbalist filled with rage against this impudent German? Well, you use the best weapon you have: cosmic death threats.

This would all just be a joke if it wasn’t for the fact that, in the fullness of time, it worked. It took a good six hundred years until the bulk of the Jewish world had given in to terrorism, but it happened. No-one, I repeat no-one at all, ever changed their mind and threw off the custom of their fathers because they were persuaded that not eating chametz or eating matzah (they can’t decide) is just so clearly an אות after all. The whole story of this halacha is the relentless triumph of fraud.

To repeat what I said before, if you look at it narrowly, the issue of tefillin on Hol haMoed doesn’t matter very much. If Hazal had told us not to wear tefillin on Hol haMoed, I doubt anyone would have been much troubled to explain why. However, looked at in terms of its historical development, it captures the most important question of all: is this thing for real? Is the legal system that regulates our lives, through which we comply with the terms of our covenant with the Creator of the Universe, open to being rigged by shameless fraud and the machinations of conmen bereft of ordinary moral boundaries? When incontrovertible evidence of a mistake arises, does the system have the capacity to fix itself, or can it only fling enough abuse in the hope that you won’t notice or be cowed into submission? Or, let us put it another way, if you are indifferent to all this, who is really Reconstructionist?

First of all, obviously, no more computers. No Sefaria, no Al haTorah, no Otzar haChochma, not even the B’nei Torah edition. That’s just the start though. Next you need to put away all your paginated books. No more Ein Mishpat, no more Masoret haShas, no more handy notes on the side telling you where to find the pesukim. You’re on your own. If you need to look something up referred to by Rashi, the reference won’t be Brachos 33b, it will be פרק תפילת השחר. Should you start looking at the beginning or the end? That’s your morning covered.

And still, we’ve only started to scratch the surface. The codex you’re looking at not only has no page numbers, it’s handwritten. Maybe, if you’re lucky, the handwriting is legible without inducing ongoing headaches. Let’s make it easy by assuming so. However, it also has hundreds of copyist mistakes. Some of them are obvious, after all איקגנ isn’t even a word, right? Best to check first in an Aramaic dictionary, but that hasn’t been invented yet! So, you do the only thing you can do, which is send a letter to the closest person you know of who also has a manuscript and wait two weeks to get a letter back. However, you can’t do that dozens of times a day, and what do you do if the letter comes back and his version also says איקגנ? Do you attempt an emendation, or do you try to explain the apparent gibberish you have in front of you? Also, you have a bit of an issue this week because there’s no light in the Beis Medrash since the guy who brings oil to the town died of scurvy.

I could go on, but that’s enough. Even a cursory attempt to think through what it took to be a Rishon juxtaposed to what they managed to nevertheless bequeath to us should fill you with awe and gratitude. However, if you’re honest, it should also make it very obvious that their works have limitations, and what these limitations are. Sometimes, Tosefos will respond to a difficult girsa by proposing an emendation, and it turns out this emendation is totally wrong. Sometimes, Tosefos will resist making an emendation and do their best to explain the girsa they have and it turns out that this girsa is totally wrong. Sometimes, this explanation will be copied by the Rosh verbatim, because a very large part of the Rosh is copied from Tosefos verbatim given the literal impossibility of his having produced a work of that detail and scope from scratch. C’est la vie.

This brings us to esteemed and valued commenter . Happy is angry because I don’t think the argument that not eating chametz is an אות is a good argument. Rishonim said it, therefore it must be a good argument. On the other hand, Happy thinks my argument that the words ימים טובים mean by default ‘Yom Tov’ and not ‘Yom Tov and Hol haMoed’ is a terrible argument. He is quite emphatic on this point, dubbing the argument ‘really bad!’. Something ‘pulled … out of your rear end five minutes ago’, ‘by reading the Gemara like a German goy who never opened a folio of the Talmud in his life’ and ‘it was exactly people like you Chazal had in mind when they talked about the prohibition of writing Torah shebaal Peh’. And those are just the things he left in after going back to edit his comments for expletives! Unfortunately for Happy, here’s the Rid:

And here’s the Ritva:

וכדעת הזה נ״ל חדא דבכל דוכתא דאמרינן בש״ס בכמה דוכתי שבתות וימי׳ טובי׳ אין חולו של מועד לא וכדמוכח נמי בפ׳ כיצד מברכין ובפרק שלשה שאכלו לאחת דמני שבתות וימים טובים לחוד וראשי חדשים וחולו של מועד ועוד דהא אות דכתיב גבי שבת בשמירת מלאכ׳ היא ודכות׳ אות דימים טובים היינו מפני שהם עצורי׳ ממלאכה וכדתנן אין בין י״ט לשבת אלא אוכל נפש בלבד ואלו חולו של מועד מותר מן התורה בכל מלאכת דבר האבד ובכל שהוא לצורך המועד ואפי׳ בפרהסיא ושלא בשנוי וכל מה שאסרו בו אינו אלא מדברי סופרי׳

And it’s in Riyaz and Shiltei Giborim too. Happy’s sharp tongue and keen eye for bad arguments in the Rishonim doesn’t stop here. I argued that the meaning of שבת זמן תפילין is the same as לילה זמן תפילין, namely that they may theoretically be worn, but aren’t in actuality, in which case the Gra’s sevara to invalidate the opinion of Rabi Yehuda, Rabi Meir, Rav and the Yerushalmi doesn’t get off the ground. Happy was having none of this ignorant trash, but sadly for him Bartenura and Rabeinu Yonatan of Lunil say it (and I’m not aware of anyone explicitly disagreeing). I suggested that the very identification of Rabi Meir and Rabi Yehuda as holding that שבת לאו זמן תפילין is made tentatively, and therefore it is inappropriate in the first place to make it the premise of an argument. Detestable impiety on my part from reading gentile lesbian scholars! But it’s right there in Rabbeinu Hananel.

So, let’s be serious. Happy has the minimal self-awareness to tone down his language when this is pointed out to him, but he didn’t magically decide these are all actually solid arguments. Clearly, he does actually believe that Rishonim can make bad arguments, and this entire line of attack is transparently fake and insincere. Rishonim are enlisted as human shields for a yeshiva system that cannot be defended on its merits.

Today we have Aramaic dictionaries, we have paginated gemaras with cross-references all over them, we have Sefaria so you can have fifteen books in different tabs open at once and flick between them. We also have a lot of other really cool stuff. We can look up all the extant manuscripts of the Talmud Bavli in under a minute! Think of something as simple as the ability to do Ctrl+F. In my unwise and hasty note on the Gra that kicked this all off, I made a stupid mistake because I relied on Sefaria’s crummy search function. It would have taken me a few more minutes to lay out the whole text and use Ctrl+F and there’s simply no excuse for not doing so.

And here is the crucial point: there is no excuse. There’s no excuse for using outdated editions of classic texts riddled with mistakes when you can buy accurate versions on the internet. There’s no excuse for writing a 15 page chiddush on the gemara without first bothering to check if the girsa you are being medayyek on is correct or not. There’s no excuse for quoting additions to the Behag as if they were the Behag itself. The Rishonim did the best with the tools that they had; Litvishers do the absolute worst with the tools that they have, and spend their time conjuring up twisted arguments for why it’s actually bad to use these tools and any form of learning that leads to greater understanding rather than greater confusion is - the horror! - balabatish.

Let’s now return to our sugya. Some people think it’s plausible that the words ימים טובים by default don’t include Hol haMoed, and some people think it’s plausible that they do. But we don’t have to stop there, we can just go through all the times the word יום טוב comes up in Hazal and see which is so. Once this would have been a very burdensome task. Now, it’s something you can do in a day or two, and people have done it. It turns out that, out of hundreds of examples, there is precisely one where maybe the wordיום טוב means ‘Yom Tov and Hol haMoed’. The inference that when Hazal tell us that tefillin are worn on all days except שבתות וימים טובים this excludes Hol haMoed is fully vindicated.

So, with all that said, why learn Rishonim? This is not a hard question to answer.

1. Rishonim didn’t only make mistakes! Most of the time they don’t make mistakes. Rashi on the gemara is not just a monumental achievement considered historically, it’s also the best way to pick up and learn a daf today.

2. Rishonim make a lot of arguments. Some of these arguments are good, and some are not so good. Maybe if you had infinite time, you could come up with these arguments from scratch yourself, but you don’t have infinite time. Instead of re-inventing the wheel sugya by sugya, look at what Rishonim have already said, and assess which arguments stand up better.

3. Similarly, Rishonim have already done the work identifying and collecting sources relevant to any given topic from across the Talmud Bavli and, to a somewhat lesser extent, from other works of Hazal. If you learn any given sugya with all the Rishonim, it’s unlikely that you have missed any highly relevant sources. In theory, you need total bekius across all of Shas to answer any question, but Rishonim relieve us of this burden.

4. Rishonim are (literally) indispensable tools for tracing received halachic practice where textual arguments from primary sources are inconclusive. (See my article on duchaning, and a forthcoming one on the bracha on Netilas Yadayim).

5. Often Rishonim ask questions on the Talmud that are better than the answers, and we can learn from these questions. HaGaon David Weiss haLivni would say that the basis for much of his source-critical work was the kashas asked by Tosefos.

These are all great reasons to invest significant amounts of time learning Rishonim, and you should do that with an attitude of love and respect, both because it’s the right thing to do, and also because it’s tactically smart.

Even if yeridas hadoros has kicked into overdrive and we have all got 50% dumber over the past 30 years, just by using the tools that have become available, we should expect to see a dramatic lift-off in the quality of Torah study. And we do! In university departments, but not just there. Anyone can join in, and there’s loads left to do. The Ctrl and F keys work just as well on your keyboard as on a Bar Ilan professor’s. No-one is stopping yeshivos taking part in this. They just don’t want to, which is both their loss and everyone else’s loss, but what is far worse is that some of their members want to undermine, degrade, and defame the achievements others are making. The tool the yeshiva system’s self-appointed internet advocates have chosen to defend their intellectually stagnant system is to try and provoke you into saying something impious so they can mumble something incoherent about Reform and go back to open-ended, aimless theorising. They test-drove this technique on Natan Slifkin to justify their leaders having declared the views of most of the Rishonim to be treif, and they are quite proud of how it turned out. So best to not to let them bait you and memorise mishnayos instead.

Everyone agrees that there are precisely zero actual Talmudic proofs for the position against wearing tefillin on Hol haMoed. There are just speculative suggestions:

1. Maybe succah and matza count as being אותות despite there being no scriptural or Talmudic basis for thinking that whatsoever.

2. Maybe Hol haMoed is called Yom Tov despite this flat out contradicting an explicit Mishnah.

3. Maybe if melacha is forbidden d’oraita on Hol haMoed this makes it like Yom Tov.

On the other hand, everyone does agree that there are strong talmudic proofs for wearing tefillin on Hol haMoed! However, those who oppose it make the following argument.

1. The tanaim whom we can explicitly identify as assuming that tefillin are worn on Hol haMoed are Rabi Yehuda and Rabi Meir.

2. According to B. Eruvin 96b, Rabi Yehuda and Rabi Meir both hold שבת זמן תפילין הוא.

3. But if Rabi Meir and Rabi Yehuda hold that you wear tefillin on Shabbos, then of course they also hold you wear them on Hol haMoed. Thus, there is no proof that, according to the opinion that Shabbos is not זמן תפילין, you should wear.

4. Maybe there are some other tanaim who hold you don’t wear tefillin on Hol haMoed.

Note, first of all, that the absolute best this argument does is get you back to ‘maybe’. Maybe the opinions that are actually recorded don’t count and maybe there’s some other, unrecorded, opinion we can rely on. There’s another really serious issue. The Zohar says that people who wear tefillin on Hol haMoed are doing terrible things to the sefiros1 and deserve to die. Are we to say that Rabi Meir and Rabi Yehuda deserved to die? Or are we supposed to conclude that only according to the opinion that שבת לאו זמן תפילין one who wears tefillin on Hol haMoed deserves to die? The mind boggles upon pondering what new meaningless verbal distinctions will be conjured up next to avoid this conundrum. Finally, as the Rosh already pointed out, it doesn’t really solve the issue at all, because multiple amoraim and the Yerushalmi’s editorial voice clearly also held that we wear tefillin on Hol haMoed.2

However, these are not even the most important considerations. Without even getting into its implications, this argument is an absolutely terrible argument! How is it terrible? In at least three different ways.

1. The overwhelmingly probable meaning of שבת זמן תפילין הוא is the same asלילה זמן תפילין הוא, that is to say you do not actually wear tefillin on Shabbos/at night, but theoretically you would fulfil a mitzva by doing so. Apart from the clear linguistic parallel, to claim otherwise would entail thinking that Rabi Meir and Rabi Yehuda broke with their teacher, Rabi Akiva, and everyone else and started putting on tefillin on Shabbos. Rather, the Talmud Bavli is almost certainly saying they agreed with him about what you do but disagreed about the underlying reason why you do that, just as we see in the debate about tefillin at night. However, the proofs from Moed Katan show Rabi Yehuda and Rabi Meir think you wear tefillin on Hol haMoed as an actual practical matter. Thus, their position is definitely not a simple kal v’homer from their position regarding Shabbos. There remains a bare possibility that in some unexplained way their position regarding Shabbos might be related to their position regarding Hol haMoed, but that is all there is.

2. The Talmud Bavli identifies Rabi Yehuda and Rabi Meir as holding that שבת זמן תפילין הוא in order to explain the dispute in the first mishnah of the last chapter of Eruvin. According to the conclusion the Talmud arrives at, the Tana Kama/stam Mishna holds that שבת זמן תפילין הוא and, therefore, that you may only wear one pair of tefillin you found on the ground to bring them home on Shabbos (so as to avoid Bal Tosif). However, the halacha is like the Tana Kama! This is recorded in the Rambam, in the S’MaG, in the Tur, and in the Shulhan Aruch. I don’t know of anyone who disagrees. The fact that the Tana Kama’s opinion is explicitly (according to the Talmud) based on שבת זמן תפילין הוא doesn’t in any way preclude his opinion being the halacha. Therefore, the mere hypothesis that Rabi Yehuda and Rabi Meir’s opinion regarding tefillin on Hol haMoed is based onשבת זמן תפילין הוא does not remotely mean that it is not the halacha.

3. The Talmud Bavli neither knows nor claims to know that either Rabi Yehuda or Rabi Meir actually held that שבת זמן תפילין הוא, rather this inferred from a baraita, as follows:

   דתניא המוצא תפילין מכניסן זוג זוג אחד האיש ואחד האשה אחד חדשות ואחד ישנות דברי רבי מאיר רבי יהודה אוסר בחדשות ומתיר בישנות עד כאן לא פליגי אלא בחדשות וישנות אבל באשה לא פליגי שמע מינה מצות עשה שלא הזמן גרמא הוא וכל מצות עשה שאין הזמן גרמא נשים חייבות

   The inference is that if women may rescue tefillin on Shabbos that they find on the ground by wearing them, then they must be obligated in tefillin, and therefore it must be a mitzvah that is not time-determined, and therefore שבת זמן תפילין הוא. Each stage of this argument is open to objection, and some of these objections are addressed there in the Talmud. However, there is a really big problem here, which is that the full version of this baraita as it appears in the Tosefta reads as follows.3
   המוצא תפלין מכניסן זוג זוג רבן גמליאל אומר שנים שנים. אחד האיש ואחד האשה אחד חדשות ואחד ישנות רבי יהודה אוסר בחדשות ומתיר בישנות
   Recall that the purpose of the Talmud identifying Rabi Meir and Rabi Yehuda as believing that שבת זמן תפילין הוא was to explain the dispute in the Mishnah between the Tana Kama and Raban Gamliel. However, the very same baraita that is used to make this identification goes according to both the Tana Kama and Raban Gamliel. Either they both hold that שבת זמן תפילין הוא (one possibility considered by the Talmud) or the question of whether שבת זמן תפילין הוא is immaterial to their dispute (also a possibility considered by the Talmud). I may here be accused of engaging in source criticism, and there would be nothing wrong with it if I was, but this is actually just a simple kasha of the kind the Talmud makes all the time. The fact is that this sugya kicks around a lot of different options and maybe one of those other options is the real explanation of the mishnah, or maybe there is a completely different explanation. At any rate, it is entirely inappropriate to use what the Talmud says tentatively in Eruvin - over which there hangs a big question mark - to overturn what it says clearly in Moed Katan.

That’s more than enough, I hope, so let’s move on the takeaway lesson, which is that halacha isn’t supposed to be like this at all. In answer to a simple, eminently practical halachic question like ‘do I have to wear tefillin on Hol haMoed?’, you’re not supposed to have to turn to a sprawling passage in Eruvin to tease you into inferring that the Mishnah in Moed Katan isn’t halacha, but some kind of trap. If לא בשמים היא actually means anything, it at least means that the way to find out what Jewish law requires isn’t to play a crazy word puzzle where no-one can agree on what the rules are supposed to be, where the moves become more complex with each iteration, and for which we don’t have an answer sheet.

How should halacha work? Most of the time it should look like this: the halacha is passed down from one generation to another through formal instruction and imitation. With tefillin, that didn’t work and we know why. For hundreds of years in Europe it was rare that anyone wore tefillin. The practice we take for granted today of being careful to wear them once a day for morning prayers is a medieval innovation. In such an environment, it is not surprising that a certain degree of confusion would grow up around when exactly they should be worn. So, when that fails, you turn to sources and you hope that they are clear. Luckily for you, they are completely clear. The real argument for tefillin on Hol haMoed isn’t even that the Mishnah and Yerushalmi tell you - 95% explicitly and 99% explicitly respectively - that you are supposed to do it. That’s nice, but the more fundamental reason is this:

1. You’re obligated in tefillin always unless you are told otherwise

2. The only sources we have say you don’t wear tefillin on Shabbos and Yom Tov. This is repeated all over the place and is always the same.

3. Hol haMoed isn’t Yom Tov.

Around FrumStack, the Lakewood guys have started ruminating on what it means that learning Torah is quite boring. The problem they haven’t considered though is that it’s not nearly boring enough. In the quest to get as many people as possible to learn as much Torah as possible, it had to be turned into something more fun. It’s not fun like drinking Coke and riding your skateboard, but it’s fun enough that you can do eight hours a day instead of four hours without running to the bathroom to take meth (in most cases). The problem is that this kind of Torah study is also much less valuable. You learn less in eight hours than you would have in four. Not infrequently, it’s actively harmful. The problem with our Yeshivish friends is not that they’re ignorant, it’s just that they know so much that isn’t so. This isn’t the main problem with Judaism. The main problem is kabbalah. But it’s the ambient environment that makes something like kabbalah inevitable by turning the Law into a jumbled mess that needs a magic system to put it back together again.

So what’s the solution? In the short to medium term, there’s actually a great solution. A lot of the mess in halacha can be fixed by the application of scholarly techniques in a controlled manner with epistemic sanity, what is called the ‘academic approach to Talmud study’. This is like solving puzzles, and each time you do it, you get a nice dopamine hit. Not only that, but you’re doing something positive by clearing away the thickets of halacha rather than making new ones with your new ‘chiddush’.

However, there is a theoretical problem, at least, that God willing will become a practical one in due course. If things hadn’t got so messed up, all that academic stuff would be unnecessary. So, what would we do, just memorise mishnayos all day, and test ourselves to see we did it precisely enough?

Yes.

OK, that’s not strictly true. Jewish law requires judges to arbitrate new cases, and this requires critical thinking, argument by analogy, inference and some of the other funner stuff. But for the people who aren’t going to be judges, yeah, sorry, it’s ולמדתם אותם את בניכם לדבר בם. OK, so I’m still exaggerating. Mishnayos are illustrative test cases, so learning them mean s also learning the principles they illustrate, but that’s also not super hard. Most of it’s right there in Bartenura. You do it, and it’s done.

Is there a problem that people don’t like that? People don’t like a lot of things. (They really don’t like monotheism.) It’s a covenant, not a playgroup. So, if you can’t manage more than one hour a day of actual Torah study, then do one hour a day, and spend the rest picking up litter or planting trees or playing with your children. You can also invest time learning to lein so you can do your own aliyah rather than standing there at the side like a dolt, desperately whispering. And if that’s too boring as well, kick back with a beer and play something harmless like scrabble. It’s OK. Not everyone is supposed to be a gadol.

כל המנחות הנעשות בכלי טעונות שלש מתנות שמן, יציקה ובלילה ומתן שמן בכלי קדם לעשיתן. והחלות בוללן דברי רבי. וחכמים אומרים סלת. החלות טעונות בלילה הרקיקים משוחין. כיצד מושחן כמין כי. ושאר השמן נאכל לכהנים:

We also find in the Talmud that the same shape is used in the anointing of the Kohen Gadol:

תנו רבנן מושחין את המלכים כמין נזר ואת הכהנים כמין כי

A third place that the ki appears is M. Keilim 20:7:

מחצלת שעשה לה קנים לארכה, טהורה. וחכמים אומרים, עד שיעשה כמין כי

The meaning here is that a reed mat, according to the majority opinion, does not lose its status as an object designed for lying or sitting on simply by placing reeds along it perpendicular to the majority. Rather these reeds need to be arranged in the shape of a ki to render it unusable.

But what is a ki? The Mishnah takes it a given that you know the answer, but what if you don’t? This question is already addressed in the Talmud Bavli for a reason that is self-evident once you know the answer, namely that it ‘a Greek kaf’.1 In the Land of Israel, where Greek was widely spoken, and had an even greater prominence is writing, the shape of this Greek kaf would have been widely known and a useful way of indicating to the audience of the Mishnah the intended shape. However, in Persian Mesopotamia, knowledge of the Greek alphabet would have been rare to non-existent (and all the more so by the time of the Talmud’s editing), so it needs to be specified.

OK, good, but what does this Greek kaf actually look like? Well, there are two ways we can go about answering this question. The first is to look at Rishonim. Rashi tells us it looks like a nun:

אחר אפיתן מושחן כמין כי יונית שהיא עשויה כנו”ן שלנו

Tosefos, however, mix it up a bit:

כמין כי. צייר בקונט’ כמין טי”ת ובפירושי חומש פי’ גימל ויש מפרישים כמין נון או כמין כ’ ובערוך פירש דתניא בכריתות (דף ה:) המלכים מושחין כמין נזר והכהנים כמין כי יוונית פירוש יצק שמן על ראש [אהרן] ויורד אילך ואילך כמין שני מרגליות וזהו צורתו

So, they have two versions of what Rashi said. One like a tet and one like gimmel. They report that some unnamed others explained it as nun, and some other others like a kaf. We know, at least, who the last of these is, namely the Rambam.

Our picture of what a ki is based on this approach is someone obscure. It looks like one of four letters, but we are not sure which. The common feature of all four is that they somewhat resemble a semi-circle, so presumably a ki is something similar to that. We might posit that the reason four roughly similar letters were suggested by different authorities is that none quite matched the true ki, which would explain why a Greek letter had to be chosen. It would follow from this that we are required to be quite precise in the shape of these anointings because, if not, Hazal could simply have picked one of these letters. Since we still do not actually know what the ki looked like, that’s a bit of a problem, but only once Mashiah comes, and maybe he’ll know.

So that’s approach 1. Approach 2 is to go on Google and look up the Greek alphabet:

So, ki is actually an x. This explains nicely why Hazal used it instead of a Hebrew letter, because no Hebrew letter looks like an x (though the ת of paleo-Hebrew script did). There are no remaining problems in interpreting the source material. Our only problem is explaining why the Rishonim all say the wrong thing.

Well, first of all they didn’t know. After the rise of Islam, knowledge of Greek was lost outside of the Byzantine rump state. Elsewhere, Aristotle et al were read exclusively in Arab or Latin translation. It was only with the Ottoman conquest of Constantinople in 1453 that a few Greek scholars fled West and the revival of Greek learning from the original sources returned, this being fortuitously not long after the start of the Italian Renaissance.

Secondly, we can also see pretty clearly what motivated the Rishonim to make their mistake. Rashi bases his explanation on the gemara, which says that the oil is placed both between the eyebrows and on top of the head. If you imagine dragging the oil with your finger from the bridge of the nose to the back of the head, then looked at from the side this would be a kind of nun-ish shape. However, the source isn’t telling us that; it’s telling us what it looks like viewed from above. If we genuinely didn’t know what a ki is, Rashi’s interpretation might have been the best guess from the evidence, but what this tells us is that without knowledge assumed by the text that isn’t inside the text, the text cannot be correctly interpreted. It is not that the information in the text is useless; once we know that a ki an x, it tells us the position of the x, but we can’t extract that information without the outside knowledge.

The reason I’m telling you all this is because of this article doing the rounds on Substack. You can read it yourself, but the basic point is that we should believe the menorah in the temple and the mishkan had straight branches because this is what Rambam and Rashi thought, and because archaeological evidence is irrelevant to the question. Halacha and archaeology are two different epistemological domains, and a faithful Jew takes the conclusions of the first as a better guide to reality (at least where halacha has something to say) than any other domain:

The burden of reconciling archaeology with Torah is not a Jewish burden. If archaeology appears to contradict the halachic reality, it is archaeology’s problem to solve. Halacha settled the menorah’s shape centuries before archaeology had a word to say. It describes created reality as revealed through Torah. Whatever the solution turns out to be, the Torah’s determination of what the menorah was stands untouched …

The archaeologist does not have exclusive rights to the shape of the menorah! It doesn’t fundamentally exist within his domain. There is a Jewish domain, a Jewish source of truth. A different field, with different rules, leading to different conclusions. It has equal access to empirical fact. It constitutes the Jewish factuality, a totally different view on reality with its own justifications.

If we do not understand this fundamental point, then the facts themselves remain imprisoned. They are impounded among those who deny—as they always have—that there exists a Jewish source of truth. The Lubavitcher Rebbe is waging an insurrection, a liberation movement, on behalf of these facts …

Halacha is speaking to an actual empirical fact in the past, something the world thinks belongs to archaeology or history in their exclusive domains. This is precisely why people get so angry. We really are affirming that the actual menorah was in fact—not in abstraction or in symbol—straight-armed.

If we are wrong, it must be demonstrated through a process internal to Torah. Not by appeal to a Roman triumphal arch or a Hasmonean coin. The Torah has its own process for dealing with the empirical and its own authority, which is the authority of Sinai. It is the only Jewish framework for assessing what empirical reality is. This is why the Rebbe’s insistence on the straight-branched menorah—a seemingly minor detail the Talmud doesn’t even explicitly discuss—is actually a central defining issue of the entire Judaism.

He goes on to accuse those of us who do not accept this as being Greeks, idolaters, Cossacks and not monotheists. I am trying to control myself at this point, so let’s all look at this video of people worshipping an empty chair:

To return to halacha and archaeology, I think the example of the ki makes the relevant point much more clearly. The halachic case for the straight-branched menorah is not very strong, and the archaeological evidence for the round-branched menorah is not watertight either. What we actually have is a lot of evidence from synagogues and books of a strong Jewish tradition in favour of a round-branched menorah, all the way until the present age when the Rabbi of Lubavitch decided to ‘correct’ it. The straight-branched menorah is thus actually an example of the kind of incompetent pseudo-mekoriism that brought us the giant kezayit. This is precisely why I frequently emphasise that, historically, halachic traditionalists have far more often been correct than text-based reformers. The ki example is a better test-case for the thesis at hand because the halachic sources all clearly point in one direction, and the facts point in another. There is simply no way that a ki is anything other than an x, and therefore the theory that halacha can work as a self-contained field of knowledge is disproved.

We could stop there, but I think this might be a good time to state out loud what the basic assumption of MekorMayimHayim is from my perspective: all cognition is generically the same. Before continuing, I should clear up what I don’t mean by this:

1. I do not mean that cognition is the only kind of mental activity in the brain, that there is no such thing as love, or that love is a lower form of mental activity or anything like that.

2. I do not mean that prophecy does not exist, or that prophecy is just a special type of cognition. The latter may well be true, but I don’t know and it isn’t relevant.

3. I do not mean to imply that metaphysical materialism or physicalism is true, which it probably isn’t.

4. I do not mean to say that correct halacha is a natural function of objective facts. Research can tell us, always in principle and often in practice, what past authorities have said the halacha is. However, what the halacha should be is a matter of [justified!] opinion, and I believe that an indispensable part of having a valid opinion is an intuitive sense of the relationship between ideal categories (like Shabbos) and empirical realities (like electricity). This is what I call Daas Torah. I do not know if Daas Torah can be reduced to cognition, and I think it probably can’t.

I also don’t mean to deny what is evident, namely that there are different fields of inquiry and that, in each one, large amounts of already-acquired knowledge are stored up in technical vocabulary, and different analytical tools. I mean only that the techniques in any of these disciplines can be broken down for those with sufficient time into the same basic building blocks of logic and inference. In practice, what this entails is that if, for example, the results of analysis via the medium of linguistics and genetics tell us incompatible things about a given phenomenon, then at least one of these results is in error to some degree. The different human sciences are not different spheres of cognition, because there are no different spheres, they are just different toolkits.

To put it another way, the proper field of evidence for answering any research question is all evidence. In practice, you can never review all evidence, so you try to focus on assimilating all of the most pertinent. Sometimes you do a better job and sometimes you don’t, but what is never admissible is excluding pertinent evidence because it’s not part of a demarcated type of inquiry. This is crankery, and an epistemology that justifies it is crank epistemology.

So, to focus on the menorah, the opinions of Rashi and Rambam are evidence, certainly, but that is only the start. What do they base their opinions on? Is it an earlier source and, if so, can we locate this source and verify its meaning.#? Is it a tradition, and, if so, where does this tradition come from and how reliable is it? We can also interrogate the evidence a bit more directly. When Rashi says the branches come out as an אלכסון, does he mean that they point diagonally, or that they come out at right angles (as per the round menorah)? How much can we make of a brief description given the famous difficulty of describing shapes in words? Similarly with the Rambam, is his sketch meant to be a scale drawing or a diagram? Certainly, his son thought he meant to be understood as saying the menorah has straight branches, but how much can we rely on him as a witness?

The kind of questions we ask of the archaeological evidence are exactly the same. Did the creator of the Arch of Titus ever actually see the menorah? Did the various Jewish creators of the coins, frescos, mosaics and carvings who drew the menorah with rounded branches have a tradition they were following, and where did they get it from? The correct conclusion to the question requires reviewing all the evidence. The fact that very few people have the relevant competence to do so is a problem, but it’s a logistical problem, not an epistemological one. It’s the kind of logistical problem we face all the time if we’re interested in finding out about stuff.

The alternative approach of dividing up the question into two different spheres, and thus allowing yourself to engage in crankery, is not only guaranteed to mean you get extra-halachic questions wrong, but also a failsafe path to the perversion and, ultimately, overthrow of halacha itself. A clear example is the Lubavitch practice of not sleeping in the Succah. The grounds for this are explained in a sicha, which you can read here, in Hebrew, or, preferably, in the Yiddish original. The argument is as follows:

1. For a person at a sufficiently high spiritual level, it is impossible to sleep in the succah because he is aware of being surrounded by some kind of spiritual force-field. A person who is distressed (מצטער) to the extent he cannot sleep in the succah is, as agreed by all, exempt from sleeping in it, so all who have reached this level are exempt.

2. The halacha which states one must sleep in the succah is aimed at those who have not reached this level, who are the majority at all times.

3. Nevertheless, one who does not sleep in the succah can still fulfil the mitzvah of succah in the most perfect fashion (unlike, for example, someone who is sick or on a journey who is not liable for violating the mitzvah, but lacks the merit of fulfilling it). We know this because, when the temple stood, those who participated in the Simhat Beit haShoeiva ceremony did not sleep in the succah, but would only doze briefly outside of it.

4. Though most Chabad chassidim are not at the level that the force-field disturbs their sleep, they want to emulate their Rebbe. Either the fact that they do not feel this force-field or the fact that they are acting differently from their Rebbe causes them distress, and thus they are exempt from sleeping in the succah just as he is.

Now, there’s a lot of basic mistakes in this argument, such as:

1. It’s not true that anyone went the whole of Succos without sleeping in the succah because there was no Simhat Beit haShoeiva ceremony on Shabbos or Yom Tov.

2. There is no basis for the claim made that participants ate inside the succah, but dozed outside. The source may be equally plausibly read as saying they did both inside, or both outside. Neither Talmud addresses the question.

3. The sole source cited for the idea that one cannot sleep in the succah if he appreciates the holiness there is Rashi on Gen. 28:16, but if you bother to check Rashi’s source, it clearly says that it was forbidden for Yaakov to sleep there, not that he was unable to (which he obviously wasn’t, since he did!). Clearly, it’s not forbidden to sleep in the succah, since it’s obligatory, so this source is completely irrelevant.

However, leave that aside, there’s a bigger problem with the argument, which is that it’s completely ridiculous and insane. It is a mockery of halacha as an intellectual discipline, as a body of law, as a spiritual pursuit, as anything really. You can only even start making these kinds of arguments when you’ve determined that nothing really needs to make sense because you’ve achieved some higher level of intellect.

The road to unreason in each generation dresses itself up in the frummest language, and denounces those who resist as the faithless, the erev rav, ‘rationalists’, and, in every generation, at the end of the road is antinomianism. Sometimes it’s something small, practically harmless, like not wearing tefillin on Hol haMoed, sometimes it’s something bigger. Once you have conceded the premise, you don’t really get to decide where it stops. The main problem with creating a fake ‘Jewish epistemology’ is not that it makes our religion look like a religion for clowns. That’s a problem, sure. The main problem is that it’s the same call made by the false prophets thousands of years ago, just with some warmed-up Heidegger2 to give it a bit of caché for those easily impressed; and the destination is the same.

• The real factions in medieval Judaism (not just rationalist vs. mystical)

• How Kabbalah became legitimised (Ramban/Nachmanides had a lot to do with it)

• How the Zohar was a rebellion against Ramban’s elitist legacy

The Spaniard that Gavriel couldn’t remember the name of was Yitzhak ben Moshe haLevi, also known as Profiat Duran, an interesting character in himself.