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JUDAIC LOGIC

© Avi Sion, 1995, 1997 All rights reserved.

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Chapter 12. THE SINAI CONNECTION.

We shall now look into the issue of the Sinaitic origin of Talmudic/Rabbinic hermeneutics.

1. Verdict on Rabbinic Hermeneutics.

2. Artificial Blocks to Natural Development of the Law.

3. How “Tradition” Keeps Growing.

1. Verdict on Rabbinic Hermeneutics.

I have no doubt that certain doctrinaire defenders of Judaism will be very upset with me for the devastating deconstruction of Rabbinic hermeneutics in the previous two chapters. But I have to say that my conscience is clear: facts are facts, logic is logic. I did not set off with the intention to discredit Jewish law; quite the opposite, I was hoping to find it valid. However, I resolved to make an objective assessment of the processes involved, unmoved by any considerations but truth, applying my logical know-how to the full. I imagine that Gd approves, since I believe the Rabbinic characterization of Him as the Gd of Truth literally. I admit that the religious consequences of the results obtained are many and complex, and not all good. But that is none of my business, which is only methodological; I have neither the ability, nor the inclination, to sort out the religious consequences.

No doubt, too, I will be accused of being “haughty and unlearned”, and said to “interpret the teaching according to [my] personal desires”, to use the words of R. Simlai[1]. It is true that I have at most a superficial knowledge of Jewish law, having studied the Talmud very little (in large part due to finding its reasoning processes frustrating). However, just as a theoretical physicist, say, need never enter into a laboratory, but may work with the results of experimental research by others; so in my case, I have built up my analysis of Rabbinic reasoning on the basis of data made available by relative experts in the Talmud. Division of labour is virtually inevitable in the collective pursuit of knowledge; each worker has his special abilities. My gift – I humbly thank Gd for it, for I do not see how I might have deserved such a gift – is logic; and I have chosen to apply it to this domain, confident that I would make some valuable contributions (and perhaps sensing a certain naivety and bias in my predecessors).

My method simply consisted in analyzing traditional data, examples and principles put-forward by Judaism itself, with reference to scientific logic. A better method, admittedly, would have been to study the Talmud and other Rabbinic literature directly, and build up a thorough data-base of independent observations of actual thought processes, for evaluation by logic. However, the former approach does not exclude the latter approach from being eventually performed; and the latter approach’s desirability does not diminish the value of, or invalidate, the former approach. We can compare this to chemical analysis, when samples of a body are taken and their chemical compositions are correctly identified; that conceivably and quite probably other samples, not yet taken, may have other chemistries, does not mean that the samples already analyzed were not properly analyzed. In our case, additionally, the processes we have analyzed are regarded by tradition (rightly or wrongly) as representative[2].

Let us summarize, very briefly, the results of our research into the 13 Midot, with a view to distinguishing their natural and artificial aspects. Note first that all the rules suffer to some extent from vagueness and ambiguity, which means that they are bound to be applied with some amount of anarchy.

· Qal vachomer, as we have shown, is a natural and valid form of reasoning. It was reasonably well-understood and competently-practised by the Rabbis (this is not of course intended as a blank-check statement, a blanket guarantee that all Rabbinic a-fortiori arguments are faultless[3]), without weird embellishments. So, we can say that this first midah has essentially no artificial components; though Rabbinic attempts to reserve and regulate use of this midah (see further on) must be viewed as artificial add-ons.

· Gezerah shavah is based on a natural thought-process, comparison and contrast, which applied to textual analysis pursues equations in meaning (synonymy) or wording (homonymy). Analogy is scientifically acceptable, though only insofar as it is controlled by adductive methods, namely ongoing observation of and adaptation to available data. While the Rabbis demonstrated some skill in such inference by analogy, they did not clearly grasp nor fully submit to the checks and balances such reasoning requires. Instead of referring to objective procedures, they tried to reserve and regulate use of this midah (again, see further on) by authoritarian means; and moreover, they introduced logically irrelevant provisions, on the “freedom” of the terms or theses involved. Thus, this rule, though it has a considerable natural basis, eventually developed quite a large artificial protuberance, and should not in practise be trusted implicitly.

· Inferences from context, including heqesh, semukhim, meinyano and misofo, are like arguments by analogy, in that the primitive mind accepts them immediately, just because they appear reasonable. But, upon reflection, we must admit the need for verification procedures; and, ultimately, the only scientific means we have is adduction (repeated testing, and confirmation or elimination, of hypotheses). In any event, proximity is not, even in theory, always significant; so one cannot formulate a hard and fast rule about it. It follows that the Rabbinic attempt to do so is bound to be rather artificial, to the extent that it is presented as more than just a possibility among others.

· Binyan av is, as we have indicated, a Rabbinic attempt at causal logic. The induction of causes and effects is, of course, a natural and legitimate process, when properly performed, by observing the conjunction or separation of phenomena, tabulating the information and looking for behaviour patterns. The Rabbinic attempt at such reasoning was, I am sorry to say, less than brilliant. The Rabbis seem to have grasped the positive aspect of causal reasoning, but apparently could not quite grasp the negative aspect[4]. In practise, they may have often intuited causal relations correctly; but they had difficulty analyzing the relationship theoretically, in words. The outcome of such relative failure, is that binyan av efforts must be viewed with suspicion, and classed among the artificial aspects of Rabbinic exegesis.

· The various klalim uphratim rules (including both R. Ishmael’s and R. Akiba’s variants) reflect a natural aspect of exegesis, but insofar as they rigidly impose interpretations which have conceivable alternatives, they must be judged as somewhat or occasionally artificial. This regards theory; regarding practise, we can go much further. In many cases, these rules are applied very artificially, being used as mere pretexts for contrived acts which have no real relation to them. If we regard every such false appeal to these principles as an effective instance of them (viewed more largely), then their artificial component is considerably enlarged.

· With regard to the first few rules starting with the phrase kol davar shehayah bikhlal veyatsa, we found their common properties to be their concern with subalternative subjects (or antecedents) with variously opposed predicates (or consequents). Where the predicates are in a parallel relation compared to the subjects, the conclusion generalizes the minor predicate to the major subject (lelamed oto hadavar). Where the predicates are in an anti-parallel relation compared to the subjects, the conclusion renders the minor premise exclusive and particularizes the major premise (lelamed hefekh hadavar). Where the predicates are incompatible, the conclusion is similar in form to the preceding, though for different reasons; and perhaps additionally, it renders the minor subject and major predicate incompatible (liton toan acher shelo kheinyano). With regard to situations where the predicates are otherwise compatible (liton toan acher shehu kheinyano), our research has not determined the Rabbinic conclusion and left the issue open.

Now, in all these cases, except for the main conclusions of shelo kheinyano, which resolve significant inconsistencies in accord with natural logic, the Rabbinic conclusions are deductively unnecessary: they are at best inductive preferences. However, since they are viewed by the Rabbis, not as tentative hypotheses open to testing, but as laws to be followed come what may, they must be considered as arbitrary and artificial. Furthermore, while we have attempted to determine the exact forms of these laws, the Rabbis themselves are not always clear on this issue, and occasionally misplace examples; this is an additional reason to regard their activities under these rubrics (except, to repeat, for legitimate harmonization) as suspect and artificial.

· The rule lidon badavar hechadash, which the Rabbis were not sure how to distinguish, was found by formal methods with reference to examples to concern movements of individuals from one class to another and back; it was intended by R. Ishmael to raise a question with regard to corresponding changes in predication. While a literal approach to text would reject such a question, within a more open-minded exegetic system, it seems reasonable enough. Epistemologically, this rule instills exceptional caution in the situations concerned, making inferences conditional on reconfirmation. However, even if we do not classify this rule as overly artificial on theoretical grounds, we must regard some of its alleged applications with considerable suspicion, in view of the evidence that the Rabbis are unclear about it.

· Lastly, the rule shnei khetuvim hamakhechishim, viewed as a wide-ranging harmonization principle, may be classed as an important aspect of natural logic. However, this essential validity does not automatically justify every dialectical act found in Rabbinic literature; quite often, Rabbinic interventions under this guise are rather forced. Furthermore, this rule may not, in fact, have been intended by R. Ishmael to cover every conflict resolution (or at least every conflict not resolved by preceding rules); its scope may have been intended to be premises with a common subject (or antecedent) and variously opposed predicates (or consequents). Such uncertainties in definition call for caution, too. In sum, this rule, as with most of the previous, in practise if not in theory, contains artificial factors.

This summary makes clear that we cannot define in one sentence the distinctive features of Rabbinic ‘logic’, i.e. those aspects of it which are not granted universal validity by natural logic. Broadly speaking, the Rabbis developed distinct modes of thought due to lack of formal tools, consequent vagueness in theoretical definitions, and resulting uncertainties in practical applications. Their natural logic was gradually thickened by an agglutination of diverse artificial elements, which became more and more difficult to sort out, and more and more imposing. Being manifestly unjustifiable by natural means, these extra elements had to be defended by intimidation, with appeal to Divine sanction and the authority of Tradition.

The verdict on most of Rabbinic hermeneutics, emerging from our precise logical analysis has to be, crudely put, thumbs-down[5]. In the last analysis, whatever it is, it is not a teaching of pure logic[6]. There are, to be sure, many aspects of it which are perfectly natural and logical[7]. But certain distinctive aspects of it, which we may refer to as peculiarly Judaic ‘logic’, must be admitted to be, for the most part, either non-sequiturs or antinomial; in all evidence, products of very muddled thinking. We could, with an effort, make allowance for many of the latter processes, if they were viewed as ab-initio tentative hypotheses, inductive first-preferences, subject to further confirmation or at least to non-rejection by the remaining body of knowledge. But they are traditionally presented as irrevocable certainties, quasi-deductive processes, not subject to critical review (at least, without a special license granted to a privileged few). So we must evaluate them in that given framework.

Whatever traditional claims, according to logic it is virtually inevitable that, in a large body of information, the adoption of unnecessary postulates and the arbitrary contradiction of given data will result in hidden, if not obvious, inconsistencies. All the more so, where the proof-text itself is rather ambiguous, disorderly and confusing, as is the Torah, so that one must proceed very carefully. To arrive at a consistent result, using artificial processes like R. Ishmael’s rules, it is essential to have a certain leeway, a possibility to retreat as well as advance. If each rule has to be applied rigidly and irreversibly, the end-result is bound to be untenable, and only capable of being sustained by lies and self-delusion. Even a simple, natural generalization of some Scriptural statement, through say a lelamed oto hadavar, may turn out to be in conflict with some other textual statement; how much more so with a complex, twisted paralogism, like say a lelamed hefekh hadavar. In such cases, we must either retract or modify the text: on what basis we are allowed to do the latter, without absolute logical need, I have no idea; it would seem much more justifiable to do the former. Surely, our primary axiom must be that the Torah is more reliable than Rabbinic constructs.

The only conceivable defense against the results of the present research is to say that the rules of Rabbinic exegesis constitute a secret code, by which instructions in the Torah are to be transformed into valid legal statements. This thesis suggests that Gd deliberately wrote the Torah in a misleading way, not wanting everyone to have access to His real intentions, but only a select few (the Jewish Rabbis), to whom a conversion table, the hermeneutic principles, was specially revealed for decoding purposes. Thus, according to this idea, Gd said (in effect) “when, for instance, I assign an implying predicate to a subordinate subject in the Torah, you must contradict the Torah statement where I assigned the implied predicate to the subaltern subject (lelamed hefekh hadavar)”. Put in clear terms, this is effectively the defense proposed by the orthodox establishment. They put it more romantically, with reference to “allusions and hidden mysteries” which “defy literal interpretation”[8], but that is what they mean.

Thus, in that view, the Torah can, and often does, mean more or less than what it says. For this is what happens: when, without logical necessity, the Rabbis generalize a particular statement or read a statement exclusively[9], they add to the law; and when, likewise, they particularize a general statement, they subtract from the law. This thesis is not inconceivable, but it is rather far-fetched and difficult to believe. One may well wonder why Gd would want to engage in such shenanigans, and not speak clearly and straightly. If His purpose was to illuminate humankind in general, and the Jewish people in particular, with a perfect law, full of Divine wisdom and love, justice and mercy, purity and spirituality, why not say just what He means? Why would He need to mask His true intentions, and give the key to them only to the Rabbis?[10]

All this concerns, note well, especially situations which do not logically entail or call for the Rabbinic responses. In situations where logic clearly demands a certain inference or resolution of conflict, there is no need of special revelations; everyone is (more or less) in principle naturally endowed with the required intellectual means. Rabbinic hermeneutics, as a Divinely-granted privilege, come into play, essentially, wherever logic is faced with a problematic issue, because Scripture, taken as a whole, does not answer some question, but leaves a gap. The gap may be an indefinite particular proposition: should we read it as general or contingent? In natural knowledge, the preferred course[11] would be generalization. Alternatively, the gap may consist in total silence about some subject, without even a guiding particular proposition. In natural ethics, we might opt for permissiveness, or at best a conventional law.

When dealing with a presumably Divinely revealed database, such as the Torah, instead of knowledge naturally developed in the minds of human beings, scientific logic cannot predict with certainty what the intent of the Law-Giver was, in the event of gaps. It is, arguably, more likely that an indefinite particular proposition be read as contingent, and it is conceivable that more radical gaps are to be filled by the decision of Divinely-appointed judges (as Deut. 17:8-13 suggests). The latter possibility would justify additions to the law (pronouncing an indefinite particular to be exclusive, or generalizing it, or formulating a completely new provision, are all references to previously unaddressed instances); but it would not justify subtractions from the law (other than particularizations called for by manifest contradictions, which cannot be resolved otherwise).

Yet the Torah explicitly frowns on additions (tosafot) to, as well as subtractions (geronot) from, the Written Law, in passages like the following[12]:

Ye shall not add unto the word which I command you, neither shall ye diminish from it, that ye may keep the commandments of the Lrd (Deut. 4:2).

All this word which I command you, that shall ye observe to do; thou shalt not add thereto, nor diminish from it (Deut. 13:1).

Such passages could be interpreted literally, to imply that even where gaps are found, no human legislator or legislative body may presume to try and fill them. The very human, and particularly Rabbinic, tendency to legislate about almost everything would seem to be illegal[13]. In this perspective, when the written Divine law is obscure, albeit all efforts of pure logic made to clarify it, there is effectively no Divine law (on the subject at hand). The appointment of judges is then merely intended for the application of Divine law; that is, to decide in each case whether Divine law has been broken, or in whose favour Divine law leans, and impose the sentence, if any, required by those same laws. There is no delegation of powers to construct legislation with nearly Divine authority. All non-Divine legislation is subject to natural ethics or human convention, and thus possibly open to variation under appropriate circumstances.

In any case, the ‘secret code’ rationale is very fragile. It was intended, remember, as a last resort explanation of the illogic of the Midot (as above exposed). But this only holds together at best temporarily; since, as of the moment the code is broken and ceases to be secret, as done in this volume, the whole argument falls apart. One can, only so long as a mystery remains, argue that Gd wrote the Torah down differently than He intended it to be read, giving exclusively to Moses and his successors (the Rabbis) a codebook (the Midot) to translate His intentions. But, once the implied equations are made transparent and accessible to all, the idea that Gd expresses Himself in such uselessly tortuous ways becomes ridiculous.

All esoteric claims are equally vain in the long run. Thus, similarly: the Oral Law as a whole stops to be a special privilege as soon as it is written down (as in Mishnah and all subsequent Halakhic works), and so one may well wonder why it was not handed down to us in writing to start with.

It is thus easy to suppose that, from the first appearance of the midot (meaning near Talmudic times), they were simply the Jewish equivalent of Sophist argumentation[14], products of the logical incompetence and intellectual dishonesty of the speakers, and of the relative ignorance and gullibility of their listeners. The fact is that the artificial aspects of Rabbinic hermeneutics give enough of an illusion of being complex logical arguments, to bamboozle into intellectual submission, anyone who feels unselfconfident in his or her logical abilities and/or who for emotional reasons is all too willing to be persuaded. The ‘secret code’ rationale plays only a supporting role, as eventual backup in debates with philosophers. In everyday practise, Rabbinic hermeneutics ‘work’, i.e. they are ‘convincing’, because the defense against them demands a logical lucidity and expertise most people lack (be they Rabbis or laypersons).

The power of persuasion of the Midot was, of course, greater in the past than it is today; though some people, even educated people, continue to be moved by them. One non-negligible reason for the continuing credibility, is the desire of Jews to hook up with the genuine, ages-old tradition of Judaism. They are not looking for absolute truth; they are looking for roots and wish to belong. They are willing to force their minds into the unnatural thought-processes of the Rabbis, because they regard their own current thought processes as equally artificially induced, by modern society and its media. But the pursuit of happiness must not be confused with that of truth.

2. Artificial Blocks to Natural Development of the Law.

The existence of an oral legal tradition is suggested within the (written) Torah in various passages, already mentioned. It is perfectly reasonable, as the story in Ex. 18:13-26 makes clear: following the advice of Yitro, an overburdened Moshe appointed judges to apply (and therefore to some extent interpret) the law in his place, reserving for himself only the most difficult cases. Effectively, Moshe became a theoretician, one in communication with Gd, and left most of the practical work to others. This would have had to be done sooner or later, to ensure the perpetuation of the new legal system after his decease. With the departure of Moshe, and eventually the disappearance of prophecy, the reference to Divine decision in difficult cases stopped, and the law could only develop with reference to pre-established parameters.

But while the above general proposition is justified and reasonable, it does not automatically follow that every particular claim of tradition is equally well-supported. Concentrating more specifically on the hermeneutic principles, it seems very unlikely that they were entirely transmitted from Sinai. The suggestion that the game rules of Talmudic discourse were known all along is especially difficult to swallow. What is empirically evident, rather, in Mishnah and Gemara (and thereafter), is the gradual development of game rules, by trial and error, through disputes and compromises between the players. We encounter a lot of evidence to that effect throughout the present work.

It is worth quoting the Jewish Encyclopedia in this regard: “The Talmud itself gives no information concerning the origin of the middot, although the Gaonim regarded them as Sinaitic…This can only be correct if the expression [Halakhah leMoshe miSinai] means nothing more than “very old,” as in the case of many Talmudic passages[15]. It is decidedly erroneous, however, to take this expression literally and to consider the middot as traditional from the time of Moses on Sinai.”

At first glance, the proposed rules would seem quite conceivably to be of Mosaic origin, in some form or other. But when we look more closely at them and see:

· that there are disputes concerning their validity and conflicting lists are offered,

· that the lists are incomplete and imperfectly organized,

· and most importantly that there are disagreements in the interpretations of the individual principles themselves,

· and many exceptions and extensions are proposed for them…

– we must be extremely careful, especially since at issue are methodological guidelines for interpreting the Divine law. If (or to the extent that) these guidelines are at all in doubt, then all work done with them becomes open to doubt, too.

Ethical laws, whether relating to religious ritual, personal and social morality, or juridical and political matters, can logically be optional or conventional, and thus have ‘seventy facets’, in the sense that there may be many means which achieve the same goal equally well, and the factor of Rabbinic decision may reflect the necessity in such contexts of a common and uniform choice, a consensus. With regard to hermeneutics, it is conceivable that Gd wrote the Torah is such ways that a number of intellectual connections are possible from one batch of data, each to one of the optional ethical laws; and that the limitations set by tradition to such thought-processes represent the conventional aspect of religious law and logic. However, this measure of leeway and control in interpretation is only a small fraction of the world of exegesis, which remains bound by a great many absolute rules of logic.

In relation to the rules of natural logic there are no ifs and buts. Rabbis cannot choose to ignore such rules, no more than they can choose to follow them; they are universal truths, irrefragable realities, for which no ‘seventy facets’ hypothesis can be postulated. Rabbinic ‘logic’ cannot permit what natural logic forbids, nor exempt from what it demands. These remarks, of course, principally concern deductive logic; with regard to inductive logic, or epagogic, preemptive rulings inhibiting directions of thought which might otherwise eventually be taken are not totally excluded. The Rabbis might conceivably, as just implied, with reference to Torah text, forbid or make imperative an interpretative process which is contingent according to the science of logic. They would have to claim Divine sanction, of course – something difficult to prove or disprove, and something which anyone else could just as well eventually claim, if claims are blindly accepted. But in any case, their credibility depends on respect for the objective boundaries set by natural logic.

Nevertheless, the Rabbis have made efforts to both reserve and regulate use of the hermeneutic principles, occasionally in ways which seem unjustified or unjustifiable. Hints of this tendency may be found in the Talmud[16], but it has developed greatly in post-Talmudic literature. We quote Bergman[17], first with reference to Biblical interpretation (for Halakhic purposes): “we are no longer empowered to interpret the Written Torah using any of the thirteen rules of exegesis (Maharik Shoresh 139; Ra’ah to Ketubos cited in Yad Malachi 144)”; and similarly, with reference to interpretation of the Talmud, giving Rashi on Shabbat 132a as his reference: “the Oral Law cannot be interpreted with any of the thirteen hermeneutic rules“.

The first of these sentences reserves use of the hermeneutic principles for the interpretation of Scripture to the Sages of the Talmud exclusively; the second sentence prevents their use for the interpretation of Talmudic and other texts by anyone. Logically, both sentences presume that such legislation is objectively possible, as if the modes of thought involved have no formal necessity! But the truth is that no human can legislate laws of logic out of existence, and exegesis is largely composed of such natural laws. So, certainly, at least the natural aspects of exegesis are beyond the jurisdiction of Rabbis to reserve; no Divine authority can be claimed by them: the proof that Gd wanted the laws of logic (like those of mathematics, physics, etc.) is that He created them as part of nature. As to the artificial aspects, they are welcome to them; that is, since they are illogical, the less they are used by anyone, the better.

What is interesting, in these general limits, and more specific equivalents, is that the authorities quoted by Bergman are post-Talmudic, and furthermore that he repeatedly reports controversies among them with regard to the truth, or precise formulation of, such limiting principles[18].

To obtain a proper perspective on the issue of tradition, we must always keep in mind the various time spans involved. Fundamentalist students of Jewish law tend to ignore the time factor, and behave in their thinking as if all the players were contemporaries. Effectively, they claim to know with certainty that during a first span of over a millennium, there was perfect oral transmission of the Sinai tradition without loss or distortion of data and without innovations. Then, suddenly more endangered[19] than ever before, during half a millennium, it was all (or almost all) put into writing; and those who performed the job had special exegetic powers and rights, which passed away with them. Finally, hundreds and hundreds of years later, we find authorities writing down ‘oral traditions’ which, apparently, no-one in the interim (even though there was a well-developed culture of written law since the Talmud) had found worthy of mention. This transmission scenario, proposed by the Rabbis, is not credible.

It should be noticed that there is another inherent logical difficulty in the proposed limit on inference from the Written Torah. Mishnaic discussions started about 1200 years after the Sinai Revelation; the Talmud as a whole was completed some 600 years later; the classical commentators were active several hundred years after that. It is difficult to conceive that hermeneutic principles were delivered at Sinai with a built-in ‘self-destruct’ clause, permitting Rabbinic authorities living specifically between 1200 and 1800 years later to use certain methods of inference, and forbidding those living after that period from using them. How would such a clause have been formulated? Did Moses say: “In about 1800 years, after some 600 years of writing down of the Oral Torah, when the Talmud is closed, you will no longer be allowed to infer law from the Written Torah”? There is no evidence of such a tradition; it is all too obvious that the limitation was a non-Traditional phenomenon, merely the work of certain rigid-minded individuals.

With regard to the proposed limit on inference from the Oral Law, we might try to justify it by saying that whereas the Written Torah is a Divinely-dictated document, the Oral Torah (written down as the Talmud) is a human product[20]. But, upon reflection, such an argument has its difficulties, too. If the Oral Torah was, as per orthodox claims, also Divinely given, then the Talmud should be a virtually verbatim transcript of it and could assumably also be used as a source of inference using similar processes. To deny such perfection to the Talmud would be to put in doubt its continuity with the Sinaitic oral tradition! And even if it is admitted that not all the laws are Divinely given, it is claimed that they are, if only indirectly, Divinely sanctioned; in such case, too, inference should be possible.

It should, in any case, be noted that the Rabbis of the Talmud, in discussing each other’s theses, and their successors, in discussing the Talmud and each other’s theses, do in fact use at least the natural aspects of the hermeneutic principles. When a Rabbi, for instances, as often happens, constructs a qal vachomer argument from another’s statements, or understands another’s thesis as davqa, or tries to resolve a conflict between two Rabbinic theses, he is undeniably using exegetic methods. It cannot therefore be claimed that the theoretical interdiction of such methods in oral law is obeyed by the authorities in practise. The interdiction is obviously intended specifically for laypersons, to prevent them from putting Rabbinic decisions in question.

The truth of the matter, then, is that the natural thought-processes, through which we all understand any documentary or oral legal exposé, cannot be avoided or controlled, whether in the case of Torah or Talmud or later Rabbinic law. The proposed restrictions can only conceivably concern additional, artificial clauses: but, as we have just argued, such clauses, whether assumed to be Divinely inspired or the inventions of humans, can hardly be formulated with a time limit, anyway.

How such artificial clauses have in fact developed over time is suggested in the Jewish Encyclopedia article on Talmud hermeneutics. It would seem that, for example, the Rabbis might initially make a gezerah shavah between two instances of a term, without taking into consideration other manifestations of the same term in the Torah. Later, in order to inhibit the same inference from being extended to such other cases, without however abandoning the initial inference, an artificial rule had to be constructed, individually designating as “traditionally-accepted” the case(s) to which such inference was to be limited.

A natural approach would have required either extending the same inference to all other cases, or at least finding for the desired case some inner distinction justifying its special treatment, or abandoning the initial inference. But the Rabbis, aware of the inconsistencies likely to arise from free extension, and not finding any convincing distinguishing character in the accepted cases, and ideologically reluctant to revise previous judgements, opted for institution of an arbitrary rule, defining allowable cases indicatively (i.e. merely saying “this, but not that”). This is effectively an attempt to rig exegetic methods, so they arrive at preferred results. To err is human and natural; but to institutionalize error is to lie.

Two broader assumptions should be mentioned in this context: that (i) the Torah laws were intended by Gd as eternal, and that (ii) the laws derived from the Torah by the religious authorities are immutable[21]. These canons have, of course, been of great significance to the Jewish law system, removing from it all temporal considerations, all possibility of change. They did not, however, need to be brought up repeatedly in legal debates, being so universally accepted. Various remarks may be made concerning them.

The first canon seems very reasonable, at first sight. But, upon reflection, it stems from an excessive rationalism; for it is not inconceivable that Gd intended certain laws with reference to specific socio-cultural contexts, allowing for their evolution with historical change. Indeed, the Torah seems to allow for change in Gd’s legislation (compare before and after the Deluge, and before and after Sinai); also, some Divine instructions were punctual (for instance, many relating to the first Passover). This only means that Divine decrees are permanent until, if ever, Gd Himself repeals, replaces or modifies them. Needless to say, to acknowledge this as a possibility, is not to recognize every specific claim that this in fact occurred, such as the Christian and Moslem claims.

Furthermore, there are instances where Torah law was temporarily suspended, which the religious authorities concede (for instance, the prophet Eliahu’s animal sacrifice on Mt.-Carmel, against the law which legitimates only the Temple for such rituals). Moreover, the religious authorities have occasionally adapted the law, more constantly, to changed historical conditions (for instances, the laws relating to release from debts and to payment of interest). They argued that the adaptations were foreseen by the original law, in the way of loopholes in it; but we must regard the matter phenomenologically: there was effective change in the accepted legal mores. Also, some commentators have seemingly suggested the relativism of some laws (I am thinking of Maimonides, who suggested that animal sacrifice was passé).

The second canon seemed to the Rabbis to be a natural extension of the first. Given the Rabbi’s claim of Divinely delegated authority (based on certain statements in the Torah, which we have seen); their belief that Gd granted many of them special powers of insight (prophecy, the holy spirit, great wisdom); as well as their great trust in their powers of reasoning, due to the assumption that their inferences were overwhelmingly deductive, rather than inductive – it was inevitable that they would regard the whole Halakhah (that is, all interpretations of the Torah developed collectively over time by the Rabbis) as immutable once established. If Torah statements were eternal, and the inferences therefrom were technically faultless operations, then, surely (they thought), the results they obtained must be incontrovertible and final.

However (as often demonstrated in the present work) though Rabbinic reasoning was frequently powerful, it was neither omniscient nor infallible. The second canon does not logically follow from the first. Even if we grant the full intention of the first, we need not automatically grant the full intention of the second. Seeing that it concerns humans, all we can say with surety is that where their arguments are logically tenable and convincing, and so long as they remain so, in changing objective circumstances and knowledge context, we must admit them. But if good reason is found, within the letter and spirit of Torah law, changes in derivative law ought to be admitted by the Rabbis. It is absurd, contrary to reason, to lock the door and throw away the key.

In any case, let us note that, in its extension to the whole Halakhah, the concept of immutability has introduced great technical complications in the process of legislation. I refer to the travail of orthodoxy, the ever-narrowing room for maneuver of legislators as the volume of established commentary grows. This phenomenon (and its devastating effects on the people to whom the law is addressed) is not peculiar to the Jewish religion: a similar rigidity may be observed in many periods and sects of the Christian and Moslem religions. But we may contrast it to secular law within a democracy (the état de droit). In the latter law-systems[22], even constitutional laws may be changed, according to the surrounding conditions and current understanding of things. Furthermore, these display certain characteristics absent or less prominent in the former; for instances, constitutional law overrides divergent ordinary legislation, newer laws or provisions may override divergent older laws or provisions which were not explicitly repealed. As a consequence, the law can evolve (sometimes, admittedly, in sorry ways; but often, surely, for the good).

The Rabbinic restrictions on use of the hermeneutic rules (to certain persons, in certain domains) do not affect the actual operation of these rules where the Rabbis allow them to be used. On the other hand, there are general principles which affect exegesis in action, causing many of the rules to produce results they would not otherwise produce. I am thinking especially of the principle of economy, as it might be called, which is attributed to R. Akiba, and which might be stated, broadly-speaking, as: in the Torah, no choice or placement of word(s) is accidental and no repetition of word(s) is superfluous[23]. This viewpoint derives from a rationalistic thought that Gd would not, in so important a document as the Torah, His main verbal link with humanity, misuse, misplace, or waste a single word, phrase or sentence.

Note, however, that the principle of economy was somewhat mitigated by a principle that “there is no early and late in the Torah” (ain muqdam umeuchar baTorah[24]), which allowed commentators to occasionally chronologically reorder events narrated in the Torah. However, this has had a lesser effect, if any, on Halakhah, since the sequence in which laws were given does not affect their contents or relative strength.

Incidentally, while there is no doubt that the principle of economy has been used by the Rabbis with reference to a great many of the words and word-placements, it has never so far as I know been confirmed with reference to all of them. No one seems to have made a systematic research in all possible sources, to see if, indeed, every item in the Torah subsumed by this principle has been accounted for by the Rabbis, even conjecturally; or to count the proportion accounted for.

In this deterministic perspective, there are inferences to be drawn from every verbal peculiarity in the Torah; and as we have seen it had a strong effect on Rabbinic exegesis, often causing very far-out ‘inferences’ to be made. It must be stressed that, as a theoretical position, this was not universally accepted; R. Ishmael favoured a more poetic approach, saying that “the Torah speaks in the language of men” (Sifre on Num. 112, quoted by J.E.). It should be noted, however, that (as we have seen) in actual practise, R. Ishmael very often tacitly adhered to the same mode of thought as R. Akiba. One might reflect that it is very hard for human beings to avoid rationalism, even when they may try to!

If the principle of economy has been contested by high authorities of Mishnaic times, it surely cannot be claimed to be absolute, Divinely given and traditionally irreproachable. Even if it was in practise used more often than ignored, it must at best be viewed as an ex post facto summary, a heuristic principle, rather than as a guiding, hermeneutic principle. A serious problem with it, is the difficulty of defining it precisely, in a way which ensures that it operates in formally predictable ways. It cannot be expressed as a hard and fast rule, echoing the law of identity, that the Torah ‘means what it says’, for a literal and rigid interpretation of this document leads to contradictions (and, anyhow, the Rabbis do not always favour literal interpretation, as we have seen).

Furthermore, the ‘language of men’ hypothesis, which conceives a poetic license for Gd, according to which His choice of words may vary, and He may repeat words, and He may use words in surprising positions, without thereby necessarily intending to affect the law – is not unreasonable. Such liberties of style do not have to signify a lack of order in Gd’s thinking, but could be assigned to other motives, like beauty, emphasis and narrative requirements, reflecting also the intellectual limits and emotional needs of the human addressees of the Divine message. Therefore, the economy principle is not the only logically acceptable position.

The truth is, I daresay, somewhere in between functionalism and art. If we understand R. Ishmael’s postulate as noncommittal, i.e. as merely a denial of R. Akiba’s hard and fast rule, then we need not seek further for a golden mean: it is it. We can then say that the correct approach, in view of the lack of consensus, on so basic an issue, among top level carriers of tradition, and in view of the technical difficulty of defining the principle of economy in such a way that it can be applied without controversy, is to rely on natural, generic logic. That is, to judge each situation on its merits, using the whole palette of inductive and deductive procedures logic makes available to us, flexibly and unassumingly.

It may seem paradoxical that while, in their theoretical attitudes, R. Akiba seems more rationalistic and R. Ishmael more poetic – in their practise of exegesis, as pointed out by Enc. Jud., the former’s method is “less confined”, more logically permissive, the latter’s “more restrictive”, more logically demanding. As I see it, R. Akiba uses the seemingly strict economy principle as an excuse for almost any flights of fancy; whereas R. Ishmael’s language-of-men hypothesis and resultant caution in action are evidence of a deeper empiricism and rationalism.

We must, in any case, stress that a distinction must be drawn between the general principles formulated by R. Akiba and R. Ishmael, and the particular inferences claimed to have been made on these bases (by these same Rabbis or others). Just because someone claims that in performing a certain ‘inference’ they are applying this or that accepted principle, does not certify that the principle was indeed the logical basis of the ‘inference’. There is a big difference between justification and rationalization. There might be a loose, analogical relation between the pretexted principle and the alleged application, yet not in fact be a strict logical relation. Blah-blah is often a smoke-screen.

Another canon, in the same rationalistic vein, that affected exegesis was that each unit of information in the Torah can only serve for one inference. It must be stressed that this notion is very peculiar to Judaic logic. Generic logic has no such restriction: a premise can be used repeatedly, in any number of arguments, without being thereby disqualified. Moreover, a premise should be re-used as often as possible, wherever its terms or theses make such use possible, to ensure its consistency and integration with the whole body of one’s knowledge. I imagine that the Rabbis’ idea was conceived as a corollary of the principle of economy, a sort of extension from the statics to the dynamics of Torah study. But I see no justification for it whatsoever, and to repeat it has no basis in formal logic.[25]

Yet another restrictive canon of this sort, proposed by R. Ishmael, was that the hermeneutic principles mayn’t constitute chains of arguments (sorites), such that the conclusion of one is used as a premise of the next. This canon was not accepted by R. Akiba, who considered that one may “learn from a matter itself derived from Scripture” (lamed min halamed).[26] As may be expected, I would in this case favour R. Ishmael’s restriction, with respect to the artificial outcomes of the hermeneutic principles; though defend R. Akiba’s position, with respect to the natural outcomes of exegesis. The artificial parts are to be avoided as much as possible; the natural logic parts cannot be interdicted.

 

See also Addendum 9.

3. How “Tradition” Keeps Growing.

In the pursuit of objective truth in religious matters, or as near to it as we can get, it is important, as we have seen, to first of all control one’s mental attitudes, and avoiding all psychological and social pressures, concentrate on the facts and logic of the case at hand. Additionally, one should be aware of various pitfalls, some of which may be found in all domains and some of which are more likely to be found in the particular domain of religious thought.

We realize, today, the extent to which imagination plays a role in scientific thought. Mach, Einstein are among those who have stressed this fact. Knowledge depends on hypothesis-building and verification. To build hypotheses means to imagine new ideas, by means of the images and echoes of past experiences and rational insights, whose concrete and abstract elements are combined and reshuffled in ways never before tried. Our imaginations are variously extended and limited. The same person, under different conditions, and especially in different knowledge-contexts, has varying facilities and constraints of imagination. Different persons, coexisting in a historical epoch and culture, have different facilities and constraints; likewise, and all the more so, persons in different times or milieux.

All this is as true in mathematics as in physics or biology: our ability to conceive of explanations or solutions always depends on our imaginativeness, which is a function of the faculty of imagination as such (the factors in our brain which make possible the projection of novel structures and permutations), as well as of our perceptiveness, the intelligence of our insights and our acquired context of information (which together provide the elements manipulated by the imagination). Effort and perseverance play a role, too, of course. If this is true in the ‘exact’ sciences, it is all the more so in disciplines like history, where facts are much harder to come by, being relatively unique and non-reproducible, and the share of postulates is consequently much greater. Likewise, as we shall presently show in more detail, religious thought depends on the imaginativeness of those who engage in it.

If we look at religion, not only the Jewish religion but also the other major religions, we see certain recurring patterns of behavior. One of the most common ways to legitimatize new propositions in a religion is to project it into the past; to claim it has always been there, to attribute it to some authoritative person(s), to refer its transmission into the present to subterranean (oral, esoteric) channels. This may be called the argument by anachronism. To repeat, because it is important to realize it, such ways are not peculiar to Judaism, but common to all the major religions. Within Jewish culture, many works were written in Biblical style and under antique pseudonyms during the pre-Talmudic centuries, which the Talmud sages themselves nonetheless rejected for various reasons. Some people claim the book of Daniel to be such a later work, which the Rabbis however kept in the canon. More recently, a classical example is the Zohar[27].

Some people, naturally, question the antiquity of the Torah itself (i.e. the Five Books of Moses), suspecting it to be a cumulative work of many authors and editors spread over several later centuries, which was attributed by them to an ancient, perhaps merely legendary, character called Moses. Some people claim to have textual indices to that effect (I have not studied these claims). That, of course, is a very radical approach. But even granting, in its main lines, the traditional presumptions regarding the Torah itself, and later books of the Bible (the Nakh), it is important to realize that the argument by anachronism is repeatedly and very frequently, implicitly if not explicitly, used in the Talmud and thereafter. The trouble with this argument, is that it is usually as difficult to disprove as to prove. There is usually an iota of conceivability, however much the evidence or lack of evidence militates against the notion concerned.

The Torah period of Jewish history is virtually inaccessible, it seems, to historians (though, of course, quite a bit is known about surrounding cultures). The period of Jewish settlement (Judges, Kings) to the First Exile and Return (Ezra), is more accessible, thanks to the Nakh itself and archeological discoveries (few of them documentary) in the Holy Land and beyond. The period of the Second Temple, to the beginnings of the Mishnah, is, surprisingly, a relatively dark age of Jewish history with regard to documentary material; perhaps little was written and much was destroyed. Then comes a strong Rabbinic movement, starting with the Mishnah and growing with the Gemara; a vocal movement, full of advocacies and certainties, with its peculiar conventions and methods. But even in this Talmudic phase, it is relatively difficult to firmly establish the historicity, or myth, of certain claims.

How, then, can anachronism be checked and countered? The answer is to refer empirically to more recent Rabbinic discussions. As historical evidence increases, the probability of error in our evaluations of anachronistic claims decreases. It is easy to invent fairy tales (very unlikely stories) when the data in question is well out of reach; but manipulatory constructs become unacceptable, when the data is available, or when it ought to be but is not available. If we analyze how contemporary or relatively modern Rabbis develop Judaism, we can safely extrapolate our findings to their predecessors. Here, the processes involved in fact are made evident:

1. A legal problem arises, not explicitly foreseen by previous religious authorities (from Torah through Talmud and beyond). If the issue concerned had been explicitly foreseen, or even could easily be deduced from available law, there would be no discussion about it today. Our concern here is, by definition, with such cases: for example, the use of electrical equipment on the Sabbath[28].

2. It cannot be said that the present Rabbis already know the answer, through some sort of oral or written transmission, since they are all evidently looking for it, and debating possible answers among themselves. Note well the logical impossibility of anachronistic claims nowadays: in the Talmud, oral transmission could be claimed, knowingly or by supposition, and there was little possibility of verification[29], but since then, the “oral” law has in fact become more and more exclusively written, and therefore subject to objective scrutiny.

3. For each Rabbi addressing the problem, the process of answering is the same: bound by his well-absorbed Jewish cultural standards and inhibitions, and informed by his broad knowledge of official Jewish methodology and law, and some knowledge of ambient living conditions and science, and aided by his personal level of intelligence (penetration and breadth of insight, intellectual rigour) and imaginativeness, he proposes a possible solution (or a number of them) for consideration by his peers, and a dialectic is put in motion. This is very normal inductive procedure, practised in all fields.

4. The proposed solutions to a problem made by the various Rabbis involved, are of course made in the framework of past Jewish law, as much as possible with reference to precedents and analogies found in the literature. Nevertheless, since neither question nor answer were previously known and dealt with, we have to rely on the possibilities which occur in the minds of the people concerned. Granting that these people have perfect credentials, with regard to piety and knowledge of Jewish law, there still remains the issue, for each one, of his acquaintance with secular knowledge to date and his honesty about it, and his intelligence and imaginativeness. This is the human element in decision-making, in Jewish law as everywhere else, and there is no escaping it. Even if these people are in fact saints, the rest of us are still required to consider it.

5. Now, the next step is in fact the most interesting. The solution proposed by an authority may be universally accepted, or it may be accepted by some of his colleagues and refused by others. It may end up integrally or in modified form in the Halakhah – or it may even be totally excluded from the Halakhic domain in question. But, being the suggestion of a respected Rabbi, it remains potent in Jewish culture, and several centuries later it may suddenly be revived, in relation to a very different issue, by virtue of some possible analogy. The fact that it was said by an authority (i.e. someone who won other legal debates) and a long time ago, gives that proposal of his the status of being a “tradition”.

6. This status, irrespective of the fact that the idea had a human origin, and that its originator was functioning on a more limited scientific database and may even not have won the debate of the time, is passed on to any subsequent ideas, in whatever other contexts, which manage to claim some reliance on the “tradition”. Moreover, not only does the old proposal become a springboard for new ideas, but it also sets up boundaries for subsequent discussion. That is to say, subsequent discussions must take that “tradition” into account, and remain somewhat consistent with it and not exclude it absolutely. It becomes ‘raw data’, effectively, with all the potential for growth and limitations implied.

This pattern of growth, which we have just depicted, is actual, observable fact. Follow any Rabbinic debate and these elements should be evident to you. “Tradition”, paradoxically, keeps growing. Even if much uncertainty surrounds Talmudic traditions, whether or not they all came from Sinai – we can show with certainty that in more recent times, new “traditions” are first formed by the faculty of imagination of some individual and after some time acquire the status of icons. By extrapolation, it is reasonable to suppose that similar processes occurred in less accessible historical time[30].

I personally find it hard to imagine that all the words on Jewish law spoken or written in the past 3,300 years could have all been uttered first by one man, Moses, and from then on repeated from generation to generation. Surely, no human being would have enough time in a lifetime to just say all these words, let alone follow their meaning. Even if the first transmission from Gd to Moses was miraculously fast, and miracles attended the transmission from Moses to other men; we must still account for the subsequent stages of transmission. Furthermore, the powers of human memory must be empirically considered: how much it can absorb in a certain amount of time, how much it tends to forget over time, and also the possibilities and statistical probabilities of mistaken “remembering”. It is very reasonable to assume that Moses transmitted some oral teachings besides his written legacy; and conceivable that some of these teachings were transmitted through the centuries; but how much and which of his oral teachings have reached us is moot.

It should be remembered that there are indications in the Bible itself that transmission of the law was occasionally interrupted, the most touted of which is the story in 2 Kings 22:8-13 (and its parallel in 2 Chronicles 34:14-21). It is there told that, during king Josiah’s reign, the High Priest Hilkiah “found the book of Torah (sefer haTorah)” in the Temple. The definite article the in this statement signifies that a specific scroll of Torah was found. Some commentators suggest that this was the original scroll, written by Moses; and they explain Josiah’s alarm as due, not to his (and everyone else’s) total ignorance of the law at the time, but to the fact that the scroll found was positioned at an unfavourable passage. Others, however, explain the “the” as reflecting Hilkiah’s knowledge that, though all other copies of the Torah had been destroyed in the preceding idolatrous period, one last copy (even possibly the said original) had been hidden, and he had hoped to find it.

The first opinion, being less tortuous, sounds more credible to me. But the second is conceivable in the context of data available. Note that further on the king is told that Hilkiah found “a book”, which may either mean that, unlike Hilkiah, the speaker and the king were unaware of loss of the original scroll; or, alternatively, be indicative of surprise and gladness that a scroll, any scroll, was found, whereas they had assumed all scrolls lost. Thus, there is a logical possibility that the Torah was, if not entirely forgotten by most people, largely ignored, for an extended period, maybe some 70 years (during Manasseh’s reign, 55; Amon’s, 2; and the first 10 of Josiah’s). If, as some commentators suggest, the book in question was only Deuteronomy, that still represents almost a third of the 613 commandments (200 of them, of which 77 positive and 123 negative).

If the written Torah was wholly or partly out of circulation for a long time, the oral law must surely have suffered considerably. There was evidently not a complete black-out, since loyalists like Hilkiah and Huldah the prophetess, and various cultural vestiges, remained; but gaps in knowledge of the law may well have resulted.

The plurality of conflicting “traditions” tends to confirm the thesis that, even in Talmudic times, new ideas were being variously developed or had only recently been variously developed. But orthodox commentators, in the face of this plurality, have advanced the comforting counter-thesis that Gd wished to stimulate discussion and leave room for decision-making and so gave the Torah tradition ‘seventy facets’. Thus, the fact of plurality in itself proves nothing either way. However, there are other indices that conflicting schools of thought were a cultural development of Talmudic times: in the earlier Tanakh literature, there is little hard evidence of similar legal disputes, and moreover (as shown in the example of a-fortiori argument in the present work) there is no evidence of a sufficiently developed logical language.

 

  

[1] Quoted by Bergman (p. 99), with reference to Yerushalmi to Pesachim 5:3. This statement concerned the teaching of Hagadah to ‘Babylonians or people from the South’.

[2] Though not necessarily exhaustive. For anyone who might want to pursue similar research further, I pass on interesting the information given by J.E. that Malbim, in Ayelet haShachar, collects “all the hermeneutic rules scattered through the Talmudim and Midrashim,” which are reckoned as 613 in number. I did not look into this source, which is likely to be rich. But, however rich it is, we are not exempted by it from looking into the matter with our own eyes and attitudes.

[3] In particular, though the dayo principle was formulated by Rabbis, some other Rabbis resisted it; as we saw, there were good reasons on both sides, meaning that it is sometimes imperative and sometimes avoidable, so that this theoretical controversy can be excused. However, there were in practise some inexcusable breaches of that principle – inexcusable, within the given context.

[4] I wonder how many of them would pass the “Wason test”, which is described as follows (based on Michael Thompson-Noel, in Financial Times, 15-16/4/1995): we are shown four cards labeled A, D, 3, 6, and told that cards with a vowel on one side always have an even number on the reverse side; the question is, which cards (at least) should be turned over to check the truth of the foregoing generality? The correct answer is (WAIT! test yourself before reading on!): the cards A (to verify that an even number is written on the reverse side) and 3 (to verify that there is not a vowel on the reverse side); D and 6 being irrelevant.

[5] I was myself so shocked by this surprising negative verdict that I renamed the book. Originally, I had intended to call it Jewish Logic, out of pride in my people’s early progress in certain aspects of logic, such as adduction, a-fortiori and dialectic. But after completing analysis of all the hermeneutic principles, it became clear that I could only call the book Judaic Logic!

[6] I guess I am indulging in a bit of irony here. I mean, either Rabbinic hermeneutics is intended as a teaching of logic, in which case it is pseudo-logic; or it is not so intended, in which case it is misleading to present (as often done) Rabbinic arguments as processes of reasoning which lead to a conclusion: every argument must be viewed as a mere decree. But anyhow, we cannot have it both ways. It is significant that midot is translated as ‘principles of logic’ in many bilingual Jewish prayer books; Lewittes, p. 66, n. 61, informs us that this is a decision of the Rabbinical Council.

[7] This proves nothing in itself, since (as Rabbis themselves have said) there is always a kernel of truth in a false statement. It has to be so: without some reality to lean on, illusion cannot exist at all; no one would at all believe a false statement if it did not contain some truth. The issue is always to separate the husk of falsehood, and weigh it against the kernel of truth.

[8] I quote Bergman again (p. 99), who uses this language with reference to Hagadic statements of the Rabbis; but I have seen similar language used with reference to the Torah.

[9] Crediting the rest of, or the negation of, the subject with the negation of the predicate, beyond the license given by eductive logic.

[10] I am not a crypto-Karaite, nor belong to any other sect or religion; this is a candid and honest question by a ‘normal Jew’, who practises tant bien que mal the religion of his forefathers, so far. Another question worth asking is: why would Gd not wish to teach us logic and orderly thinking; what advantage would He have in confusing and epistemologically incapacitating people? As far as I can see, only a clerical class can gain from such assumptions.

[11] Based on factorial induction theory; see my work Future Logic, again.

[12] These two sentences, of course (being from Deuteronomy), are spoken by Moses. Our basic premise is that he utters them with full authority from Gd, as a mere mouthpiece, rather than as the very first Rabbi. Another viewpoint entirely, is to regard Deut. as the first Rabbinic work, i.e. the first transcription of oral law. (Indeed, reading this work, I imagine Moses, now the aging leader of a well-established new order, sitting in his tent, dictating as they occur to him words of wisdom to his personal secretary. The image is suggested by the casual style, the digressions, the repetitions, the scattered subject-matter….) In any case, it could be countered that ‘the word’ Moses refers to, which may not be modified, includes not only the written law, but also the oral law. However, how can adherence to unwritten law be ensured? What, in such case, would addition or subtraction constitute? How would the boundaries be defined?

[13] Lewittes (p. 90), with reference to these two passages of Deut., comments: “Nevertheless, the masters of Jewish Law, in particular the Sages of the Talmud, did not hesitate to add new legislation to the corpus of Jewish Law. They interpreted the Biblical injunction quoted above to apply to each mitzvah in itself; i.e. not to add to a mitzvah a feature not prescribed for it by the Torah…. Furthermore, it was not considered a violation of this injunction if the additional legislation was clearly denoted as Rabbinic and not Biblical in origin.” However, that explanation does not sincerely solve the problem; many laws in fact fall outside its scope one way or the other. It is just a smoke-screen: if we consider the final legislation point by point, we undeniably find many additions and subtractions.

[14] Historically, we should perhaps rather make a comparison to the Stoic preachers of Roman times.

[15] It is interesting to note that the expression Halakhah leMoshe miSinai is acknowledged by no less an authority than the Rosh to be not always literally true, according to Lewittes p. 142.

[16] We may as an example point to the sentence ain adam din gezerah shavah meatsmo, translated by J.E. as “no one may draw a conclusion from analogy upon his own authority” with reference to Pes. 66a and Niddah 19b. J.E. explains (p. 32) that this canon was formulated to prevent contradictions emerging from unrestricted use of gezerah shavah argument, and suggests that the decision on use in each case was not (as Rashi claimed) necessarily based on Sinai tradition, but on Rabbinic consensus. I would suggest that the purpose of this canon was not immutability, nor even collective assent, but to ensure that an individual Rabbi proposing a gezerah shavah did so with consideration for the full context of knowledge (an inexpert individual could easily ignore or forget relevant data); the collective assent and immutability would be consequences of such proper inductive thinking, which convinces everyone for all time.

[17] All quotations from Bergman, here, are from ch. 13 (pp. 120-156).

[18] Bergman, needless to say, draws no negative conclusions from these or any other issues; all criticism expressed here is the author’s own.

[19] Danger is implied by the persecution of those who remember the oral tradition; they may all be killed off and the tradition thus be forgotten. If any part of an oral tradition is known to have been forgotten, then surely all the remaining parts of it become suspect, for the missing parts may be crucial in making such or such inference, and without them the entire law becomes actually or possibly distorted – permitting the forbidden, forbidding the permitted, and so forth. For this reason, it cannot be suggested that some parts of our tradition were actually lost (as, I seem to recall, some passages of the Talmud suggest).

[20] Funnily enough, some Rabbis seem to consider the Divine as more accidental, less purposeful, than the human, judging by a comment in Bergman, p. 135, according to which: “R’ Betzalel Ranshburg… quoting Ravan, maintains that R’ Yehudah interpreted semuchim only in Deuteronomy. This is because the other four books of the Pentateuch were dictated by the Almighty and were not recorded in any particular order, whereas Moses arranged the sections of Deuteronomy in a certain sequence for the purpose of interpreting them.” It seems to me that such a position, puts in doubt the R. Akiba principle that the order of things in the Torah is intentional, on which principle many contextual inferences are made, and furthermore, and more importantly, it puts in doubt the Divinity of the laws found in Deuteronomy but not in the preceding four books.

[21] Note that I refer here to “laws derived from the Torah by the Rabbis” in a broad sense, including any legislation not explicitly obvious in the Torah. The tradition calls “Rabbinic law” only a small segment of the Halakhah, namely taqanot (if I remember rightly); but I am including here all oral traditions and interpretations.

[22] The contrasts to secular law made here are not my own insights. I found them in Abitbol, in his discussion of the 13th midah. He also mentions that conflicts between divergent laws may be resolved with reference to widely admitted general principles. Note that we may regard Torah law as having constitutional status, and Rabbinic derivations of law as equivalent to ordinary legislation, with the newer superseding the older because it has taken it into account. However, the contrast remains, despite such analogies, because we cannot in principle change Torah law, nor in practise change Rabbinic derivations.

[23] A fuller statement of this principle would also attach significance to: a pleonasm (i.e. a grammatically redundant word); the absence of a word present in a similar statement elsewhere; a redundant phrase or sentence; an extra or missing letter in a word.

[24] Pes. 6b, quoted by Enc. Jud. p. 371.

[25] In fact, the Rabbis do, if only implicitly, re-use premises. Examples may be found in our analysis of “kol davar shehayah bikhlal” exegesis, where each of the four premises (major, minor, subjectal and predicatal) is combined with the remaining three to elicit information and check for consistency.

[26] See Enc. Jud. p. 371, which refers to Zev. 57a. Bergman also mentions R. Ishmael’s principle (though not R. Akiba’s), though he seems to limit it to laws concerning the holy offerings; but he adds that “several distinctions may be made” in this regard and refers us to Zev. 50b. (Note incidentally that if R. Ishmael’s position here is accepted, so that all the premises of hermeneutic arguments must be obtained directly from within the text itself, it follows a-fortiori that his 13th rule cannot be interpreted as allowing the resolution of conflicts to come from outside Scripture!)

[27] According to historians, including Gershom Scholem, this work was written mainly by Moses de Léon (13th cent., Spain), who pseudoepigraphically attributed it mainly to R. Shimon Bar Yochai (2nd cent., Holy Land). Although the work suddenly appeared on the stage of history, many Jews were soon convinced of its authenticity, and many still are today. So much so, that it has even affected Halakhah in two or three instances. For example, according to what I was taught, the exemption from wearing tefillin (phylacteries) during the intermediate weekdays of Pessach and Succoth is based entirely on the authority of the Zohar.

[28] Current electricity was virtually unknown to us until the end of the 18th cent., and the discoveries by L. Galvani in 1796 and A. Volta in 1800.

[29] A Rabbi could honestly claim having received some belief from his teacher; but who can say whether what his teacher taught him was in turn received from his teacher, or was a personal insight? The intermediate teacher may have simply omitted to specify the fact either way, and his successor presumed it was an old tradition! The degree of veneration in which ancients held their teachers has to be taken into consideration. Multiply this uncertainty by the number of generations from Sinai to Talmud, and it grows exponentially.

[30] The story of Moses sitting at the back of a R. Akiba class, and being surprised by the new laws taught in his, Moses’, name, show that the Talmudic Sages were already aware of this paradox (Menachot 29b; according to Lewittes, p. 57). By definition, tradition must be static: the notion of a dynamic tradition is a contradiction in terms.

2016-08-21T12:48:46+00:00