It’s time now for my response to Rabbi Daniel Stein. Sorry for the delays, but I do have schoolwork to do here. I’ve been working on a response that will adequately address R. Stein’s points, while not succumbing to ranting. As comical and entertaining as a Grach-type review would be, I feel that R. Stein’s article deserves a serious analysis and critique.
(Rants may come at the end)
I say “article” in singular because, quite frankly, I don’t have time to write up reviews of both of his controversial articles. For now, I will review his article “Le’asukei Shema’t’ta Aliba De’Hilkhita,” or for you non-Aramiac speakers, “Practical Legal Deliberation.” Although he focuses on the commandment of learning Torah, R. Stein also reveals his thoughts on the Jewish legal process (halakha). Once we understand his views of halakha, we shall see his opinions on other specific matters become quite irrelevant.
Most Beis Yitzhak (BY) articles follow a responsa – teshuva – format. Unlike other writings to which we might be accustomed, the responsa author often writes his primary conclusion, thesis, or “hiddush” towards the end. Throughout the body, the author guides the reader though filtered and interpreted textual sources, and ultimately leads the reader to the appropriate conclusion. As with many teshuvot, it is possible to reach a legitimate conclusion though dubious logic and disingenuous reasoning.
Here is my summary of R. Stein’s argument:
- Premise: God himself observes and assists in the halakhic decision making process. Therefore all accepted practices are with God’s implicit approval.
Premise: It’s possible, if not necessary to say that occasionally Rishonim and Achronim err in interpretation, especially if two interpretations are mutually exclusive.
Logical Conclusion: If the accepted practices reflect God’s will and interpretation, then rejected practices reflect God’s rejection of those interpretations. Although these interpretations might merit some degree of “torah,” they would clearly be inferior to interpretations which lead to accepted practice.
Practical Conclusion: Therefore, we should not busy ourselves studying obscure or otherwise rejected opinions, but only with the laws and opinions which assist or explain accepted Jewish legal practice.
Just a quick disclaimer here – although I have copies of the articles, I do not have them with the pagination as printed in the BY. All page numbers are relative to the article. E.g. (4) refers to the fourth page of the article.
R. Stein begins by attributing a doctrine of rabbinic infallibility to Maimonides, in an analysis from his teacher R. Hershel Schachter.
- We have to say that the Rambam really refers to the oral law, that the accepted laws which we now posses (ha-halakha ha-mequbbelet ‘ata b’yadeinu) are the laws given to Moshe Rabbeinu and we do not suspect that a mistake entered into the final ruling (pesak halakha) accepted in the Shulhan Aruch and in accepted legal authorities. (poseqim ha-m’qubbalim)(1)
I do not know what R. Schachter actually said to R. Stein. However, it is simply ludicrous to impose this interpretation on Maimonides. Of all Rishonim, perhaps no Rishon was as critical of “accepted practice” which violated Jewish law. For one example, and perhaps my all-time favorite teshuva, Maimonides responds to an argument that “they did it in Baghdad:”
- And what this “wise person” claims, that in Baghdad and other places they do this, this is not a proof on any level. For were we to find sick people in those places we would not make their healthy people sick so that they would be equal. Rather, we would try to cure as many people as possible.(Responsa 263 in the Blau edition)
So much for following “accepted” laws. Incidentally, R. Stein never defines by what criteria a law becomes “accepted.” Accepted by whom? Certain Rabbis? Select communities? A tempting and hardly adequate answer would be “accepted by the frum community.” Not only does this merely push off defining what is considered the frum community (sepharadim, ashekazim, hassidim, etc), but halakha becomes hopelessly circular. Only frum Jews follow Jewish law, and Jewish law is whatever frum Jews do.
R. Stein then discusses a concept of religious pluralism and the oft quoted idiom “eilu va’eilu divrei elokim hayim” – both these and those are the words of the living God. Colloquially, this refers to the acceptance of difference positions as legitimate. However, if there is some divine objective truth to the law, how could we explain the existence of great Rabbis disagreeing?
R. Stein distinguishes between differing “perspectives” and arguments over reality – metziut. Since the Torah is divine, and man is finite, we cannot fully grasp the Torah?s intentions. Rather, we are limited to our human interpretations of the Torah.(2-3) But regarding issues of reality, someone is either objectively correct or incorrect. For example, earlier Tannaim would disagree on interpretation, but later Amoraim would debate what a given Tanna actually said. They would argue objective facts, not subjective logic. Therefore, we may apply eilu va-eilu to the subjective Tannaitic debates, but not to the objective Amoraic ones, since we know at least one of the Amoraim must be mistaken in their transmission of the Tanna?s statement.(4)
Furthermore, not all positions are halahkically legitimate. Rishonim and Achronim lack the authority to contradict the Talmud?s conclusions. Although Maimonides allows later courts freedom to reinterpret biblical verses, he requires them to be “bigger and better” than their predecessors to modify earlier edicts. Mamrim 2:1-2(7-8)
There are three problems with R. Stein?s treatment of halakhic debates. First, he contradicts himself. If “accepted practice” is the correct interpretation of God’s will, then why would this be subject to change? Furthermore, how could Rabbis ever make mistakes if God watches over the accepted practice. For one modern example, for most of the 20th century, the “accepted practice” included mixed dancing. Today the accepted practice is to have physical dividers for reasons of “modesty.” How could the previously accepted practice have been incorrect such that it needed to be changed?
Second, his explanation of “eilu va-eilu” contradicts the Talmud’s own usage. “Eilu va-eilu” appears only twice in the Talmud. The more famous of the two is in Eruvin 13b regarding the Hillel / Shammai debates. However we also find the phrase in Gittin 6b. R. Evytar and R. Yonatan differ in their interpretations of Judges 19:2. Not only are they both Amoraim, but they argue on the metziut – the facts of the verse. Their interpretations were not mutually exclusive, and according to Eliyahyu Hanavi, they were both correct.
Finally, R. Stein incorrectly and inconsistently employs Maimonides? halakhic method. I do not believe R. Stein himself believes in Maimonides? method as he contradicted it earlier in his article. What happens if when popular accepted practices contradicts the Talmud? Do we say that those interpretations are mistaken and we follow the Torah, or should we have faith in the sages that they could not have erred?
For Maimonides, every individual has the ability to ask and question rabbis based on the Talmud. Would R. Stein subject himself or his teacher R. Schachter to such criteria or would he consider some people to be above questioning? (see Maimonides? introduction to the Mishna Torah)
This inconsistency, while perhaps unintentional, reveals R. Stein?s true motives in rejecting purely theoretical learning. There are enough sources which explicitly value practical learning, some of which R. Stein quoted. However, R. Stein diminishes the Torah quality of rejected opinions, or excluding them from the rubric of Torah altogether.
What R. Stein actually does is limit everyone except his canon into the discussion. Since only “accepted” people define Torah, only these people have the true interpretation of God?s will. Their interpretations of Gemara must be accurate because God approves of the halakhic evolution by these accepted people. Other dissenting opinions may be rejected; since they were not accepted, then they must be wrong.
In this context, R. Stein argues that there is no legitimacy to dissenting opinions. Since they are wrong and have an inferior status of Torah, we should not waste our time studying them at all. Thus, the established status quo may continue to reign unopposed. Not only do opposing viewpoints not matter, but they?re not even sacred – or at least not to the same extent as arbitrarily selected sources.
According to Jewish tradition, R. Yehuda Ha-Nassi included dissenting opinions in the Mishna to prevent later generations from employing rejected logic. Yet, we still consider the entirety of the Mishna to be Torah She-Be?al Peh. Similarly, the Talmud records thousands of debates which would not be considered “Torah” by R. Stein?s definition.
By rejecting the ethos of the Oral Law, R. Stein places his own writings outside of his own definition of “Torah.” By his own logic, we shouldn?t read his articles because they are in his words,”bittul torah” (a waste of Torah and time).
Who am I to disagree?
Small nitpick –
In fact, the distinction of “bigger and better” is reserved for gezerot and takanot. In terms of interpreting a biblical verse, Maimonides allows the Sanhedrin to alter an interpretation even if they do not meet the criteria of “bigger and better.” (2:1 is for verses, 2:2 and on refer to takanot/gezerot).
This may seem like a trivial distinction, but it has far-reaching consequences.
You don’t need to worry about resembling the Gra”ch.
Mixed dancing was really the accepted practice in the early 20th century? What prompted the change??
The translation of “hahalacha hamekubelet” could just as easily be the “received halacha we have”, not necessarily the “accepted halacha”. You seem to understand Stein as saying the halacha as accepted and practiced by the masses. What I understand him to be saying is the paskened halacha, meaning that due to hashgacha or whatever, it is not possible that the halacha as paskened in the major codes is mistaken.
What constitutes a “mistake” in halacha would be a more interesting question. Is there some kind of single objective halacha that we’re trying to figure out? What about variances between kehillot (ashkenaz, sfard, chassidic, yemenite, etc.)? Is one objectively correct, or does the objective system milechatchila provide for different objective correct halachot for different kehillot? Or does “mistake” just refer to a halacha derived by faulty logic (shelo akashel bidvar halacha from the pre-learnign prayer)? It seems from your presentation that Stein thinks there is some objective halacha out there. Does he back that up anywhere? Is that brisk abstraction taken to some weird extreme?
If the Gemara in masekhet Sanhedrin gives a Torah she-b’al Peh interpretation of Vayikra , Perek Dalet, Pasuk Yod-Gimel, “Im kol Adat Yisrael yishgu ….”, as referring to an error of the Sanhedrin in Yerushalayim when it meets in the Chamber of Hewn Stones at the Bet HaMikdash, kal-v’chomer subsequent authorities. The pasuk in Vayikra specifically refers to violations of mitzvot lo aseh. According to Rambam these are the most important of the mitzvot. If the entire Sanhedrin can err in these, chas v’shalom, then how are halakhic positions whether aseh, lo aseh, takkanot or gezerot,which were crafted in the obscuring conditions of 1,900 or so years of Galut, supposed to be infallible. Perhaps they were guided by righteous and good men, who had a foundation in Torah. But there is no justification, in my opinion, for the notion of “infallibility”. “Lo ba-Shamayim hee” authorizes men to make halakhic decisions based on foundational principles. But that does not render those decisions “infallible” or eternally irrevocable.