Saturday, June 23, 2012

The Authority of the Talmud

SOMEONE RECENTLY POSED the following question on Mi Yodeya:

There is a known rule that Rishonim cannot argue on the Gemara when it comes to ‘Halachic’ drashos. For example, a Rishon will never give a different answer to a question which the Gemara already answered (Tosafos may ask why the Gemara didn't give that other answer, but he will never give his own answer without more). This is true whether the Gemara's subject is practical Halacha or not.

However, when it comes to Aggadic drashos on Tanach, we find Rishonim ‘disagreeing’ with Midrashim and late Acharonim disagreeing on Rishonim. Why do Rishonim feel freer to disagree on an explanation of Chumash than to disagree with a Gemara?

This was my answer:

The Rambam writes in one of his letters:

We do not pose difficulties with [i.e. from] the Aggadah. Are they words of Tradition or expressions of reason? Rather each individual considers their explanation as it seems fit to him. In this [Aggadah] there are no words of Tradition, no prohibition and no license, and no law among the Laws; therefore we do not pose difficulties with it. Should you say to me as many have said to me, “Can it be that you apply the term Aggadah [as pertains to this argument] to words of the Talmud?” It is so; all of these words and those similar to them are Aggadah in their reckoning, whether they be written in books of Derashos, whether they be written in books of Aggadah.

This position is echoed by various Ge'onim and Rishonim; see for example Otzar HaGeonim to Chagigah (pp. 59-60) from R. Hai Gaon and R. Shereira Gaon; and the Ramban in his famous Disputation.

While I received a few up-votes for this one (phew!), this commenter took issue with the idea:

What troubles me with this answer is that the Ramban will knock out Chazal's interpretation in a Midrash using logic. If it can be knocked out through logic, why didn't Chazal think of it before choosing that interpretation?

The truth is this is a very good question, and the comments section was too small to adequately address it. So I’ll try to do it justice here.

One of the most remarkable stories of the Talmud is that of Rabbi Eliezer and the oven of Achna’i. The Gemara relates as follows:

תנא באותו היום השיב רבי אליעזר כל תשובות שבעולם ולא קיבלו הימנו. אמר להם אם הלכה כמותי חרוב זה יוכיח, נעקר חרוב ממקומו מאה אמה ואמרי לה ארבע מאות אמה. אמרו לו אין מביאין ראיה מן החרוב. חזר ואמר להם אם הלכה כמותי אמת המים יוכיחו, חזרו אמת המים לאחוריהם. אמרו לו אין מביאין ראיה מאמת המים. חזר ואמר להם אם הלכה כמותי כותלי בית המדרש יוכיחו, הטו כותלי בית המדרש ליפול. גער בהם רבי יהושע אמר להם אם תלמידי חכמים מנצחים זה את זה בהלכה אתם מה טיבכם?! לא נפלו מפני כבודו של רבי יהושע ולא זקפו מפני כבודו של ר"א ועדיין מטין ועומדין. חזר ואמר להם אם הלכה כמותי מן השמים יוכיחו, יצאתה בת קול ואמרה מה לכם אצל ר"א, שהלכה כמותו בכ"מ! עמד רבי יהושע על רגליו ואמר (דברים ל:יב) לא בשמים היא! מאי לא בשמים היא, אמר רבי ירמיה שכבר נתנה תורה מהר סיני, אין אנו משגיחין בבת קול, שכבר כתבת בהר סיני בתורה (שמות כג:ב) אחרי רבים להטות. אשכחיה רבי נתן לאליהו א"ל מאי עביד קוב"ה בההיא שעתא, א"ל קא חייך ואמר נצחוני בני נצחוני בני.

…R. Eliezer brought forward every imaginable argument [to prove that the oven of Achna’i was ritually pure], but they did not accept them. He said to them: “If the Halacha agrees with me, let this carob tree prove it!” Thereupon the carob tree was torn a hundred cubits out of its place – and others say four hundred cubits. “No proof can be brought from a carob tree,” they retorted. Again he said to them: “If the Halacha agrees with me, let the stream of water prove it!” whereupon the stream of water flowed backwards. “No proof can be brought from a stream of water,” they rejoined. Again he urged: “If the Halacha agrees with me, let the walls of the schoolhouse prove it,” whereupon the walls inclined to fall. But R. Joshua rebuked them, saying: “when scholars are engaged in a halachic dispute, what right do you have to interfere?” Hence they did not fall, in honor of R. Joshua, nor did they resume the upright, in honor of R. Eliezer; and they are still standing thus inclined. Again he said to them: “If the Halacha agrees with me, let it be proved from Heaven!” whereupon a Heavenly Voice cried out: “why do you dispute with R. Eliezer, seeing that in all matters the Halacha agrees with him?!” But R. Joshua arose and exclaimed: “It is not in heaven!”[1] What did he mean by this? Said R. Jeremiah: “Since the Torah has already been given at Mount Sinai we pay no attention to a Heavenly Voice, because You have long since written in the Torah at Mount Sinai, “After the majority must one incline.”[2] R. Nathan met Elijah and asked him: What did the Holy One, Blessed is He, do in that moment? [Answered Elijah:] “He laughed [with joy], he replied, saying “My sons have defeated Me, My sons have defeated Me.”[3]

I have always interpreted this Gemara as firmly and unequivocally advocating a certain fundamental concept in Halacha, which I have recently found to be virtually identical to the philosophical theory of legal positivism:

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.[4]

R. Joshua ignored all the signs and wonders because they were simply not relevant. Halacha is a system. It must be so in order for it to survive within the context of a social structure – something Judaism has always been; not simply a variety of suggestions for individuals. A system cannot float with the wind by the whims of any individual who thinks he knows what is right and wrong, because such a system will not survive.
This being the case, the correctness of a particular Halacha in question ultimately cannot be practically determined by what is truly right and wrong, but only by the rules of the system. This is legal positivism. Consequently, if the system says to follow the majority, then if the majority says x the law is x, even if in truth what is right is not x.

Getting back to the story; according to the rules of the system they were working with (in this case specifically the rule that when an established court convenes on a matter, majority rules), R. Joshua’s ruling is Halacha and R. Eliezer’s is not. Thus, even if God himself comes down and tells us R. Eliezer’s opinion is the truth, it does not change the Halacha, because the Halacha must follow the rules of its own system. This is R. Joshua’s rebuke, and this is the meaning of God’s laughing with joy, saying “My sons have defeated Me.”

ONE APPROACH TO understanding the Halachic authority of the Talmud is to see it as an outline of a Halachic system which was ‘signed into law’ so to speak by its redactors, who did so by invoking the power of the court – the beis din, which rules by majority – the same power utilized by R. Joshua. According to this approach, when we submit full Halachic authority to the Talmud it is not at all necessary to assume that we do so due to a presumption of any inherent inferiority on our part. This is not necessary, because we can say that we submit to the Talmud because it is the law. We might have thought differently than some Amora’im did had we been involved in their discussions, but it doesn’t matter. Since the Talmud has effectively been signed into law, we have moved from discussing the law itself to discussing its application.

It is for this reason that there is not much Halachic value in questioning the validity of a Talmudic ruling. Although as students of history we may speculate this way or that, we cannot effectively change the ruling, which has already been signed into law. What we can do is find loopholes which affect the application of the Halacha. We can even, based on extra-Halachic considerations, sometimes manipulate the Halacha this way or that, by zeroing in on ambiguities in the text. The ‘spirit of the law’ is certainly important, as we are dealing with a divine law – but then again let’s not forget that the Torah anticipated we would do this when it made it possible for R. Joshua to rule correctly against the truth! So who’s to determine the true spirit of the law?

It isn’t difficult to theorize why the Torah would lend itself to such treatment. While it is most fundamentally a teacher of a moral and spiritually-connected way of life, the Torah’s goal is not to aid in the perfection of one individual alone, but an entire society’s. For it to be of any benefit to an entire society it is understandable why it would limit its application with rules of legislation that are necessary in any legal system, in order to insure that people submit to the system and don’t end up running around swallowing each other whole because “I hold like this.”

The commenter who asked, “If it can be knocked out through logic, why didn't Chazal think of it before choosing that interpretation?” presupposed that our assumption of Chazal is that their knowledge was perfect. The basis for this assumption, as evident in a later comment, was the fact that we never find a Rishon questioning the validity of a position taken by the Talmud on a Halachic issue. Clearly then these Rishonim believe that Chazal’s knowledge was infallible – so how can they, in all honesty, take issue with them on Aggadic matters? But I believe this assumption is faulty. The only reason we never find a Rishon questioning the validity of a Halacha is because there is no point! It’s irrelevant, as I’ve stated, because with regard to the Halachic positions of the Talmud we are legal positivists. On the other hand, when dealing with matters of Aggadah or for that matter anything which is a question of ‘truth,’ these Rishonim will often deviate from the opinions of Chazal when there is no claim from Chazal that their interpretation is a Tradition. Because no one ever claimed Chazal were infallible, and in matters of truth, logic trumps all.

[1] Deuteronomy 30:12
[2] Exodus 23:2
[3] Bava Metzia 59b, translation based on Soncino. Online edition of Soncino Talmud can be found and is available for download at
[4] Stanford Encyclopedia of Philosophy; entry “Legal Positivism”:


  1. Excellent post!

  2. I may be mistaken... I think legal positivism is primarily concerned with the authority of the law. It will not hold that social customs of the past must persist or past rulings have to be upheld if contemporary views are different. Halacha, on the other hand, in many instances, cannot revise and must uphold rulings of the past.

    Nonetheless, I do agree that Halachic rulings many times are justified based on the system - with no appeal to a moral authority - as the famous Talmudic passage illustrates.

    Just wanted to point that out because I'm not sure how far you are claiming the similarities with legal positivism go.


  3. Nachum,

    That social customs of the past persist, in cases that they do (I'd rather if you gave a concrete example of what you're referring to), is precisely because it is written into the system that they do. At the end of the day the Halacha is only concerned with the authority of the law. Obviously every legal system is different, and Halacha as a system has its own quirks and nuances.

    (For example - if you had a law that said that if an entire town has a very high crime rate over ten years it is to be taxed higher, and as a result town x is taxed at a higher rate, you wouldn't say that the law is basing itself on social customs, even though the so-called "social customs" are causing the law to be put in effect. That's simply the application of the law. While the analogy is not exactly the same, it is the same mechanism being used here.)

    1. If in the past witchery was criminalized legal positivism might say that it is no contradiction if it is not criminalized today - the justification of the law is not based on a moral claim, it is socially constructed.
      I'm not sure Halacha can make the same adjustment.

      For the legal positivist it would not matter what the legal system is. It is an abstract theory about the authority of the law.
      I don't think Halacha as a system is a legal positivist one. Still, I agree, there is an element of legal positivism to it.


    2. If in the past witchery was criminalized legal positivism might say that it is no contradiction if it is not criminalized today

      That's not my understanding.

  4. *Because no one ever claimed that Chazal were perfect.*

    Murky waters and I am afaid I disagree! They were far far cleverer then you can imagine. In fact not many Rishonim do in fact argue with the Gemore in Agadah, it is mainly the Ibin Ezra and he took a lot of flak for it!

  5. Very interesting. I have one question, though. If I understand you correctly, you are essentially saying that the Gemara is not any better than the Rishonim in terms of intellectual capacity, i.e. in a machlokes between Amoraim vs Rishonim it's eminently possible that the Rishonim are correct, but nevertheless the Rishonim granted that the Gemara's word is law (regardless of whether they thought that the Gemara was actually "correct"). My question then is, that we often find Rishonim (primarily the Ba'alei Tosafos) who will ask a question on the Gemara, and give a forced answer which has halachic ramifications. But doesn't that presuppose that the Gemara must have had an answer to the question? According to how you're explaining it, we should expect Tosafos to say that אין הכי נמי I just shlugged up the Gemara but we have to follow it anyway. What I mean to say is that Tosafos changes the halacha based on an assumption that the Gemara had an answer, but if we don't assume that the Gemara was necessarily greater than Tosafos, it would come out that Tosafos's new halacha might not have been in accordance with the "sealed law" of the Gemara, because the Gemara had in fact not thought of Tosafos's question and answer.
    Perhaps you can say that this is what Tosafos intends every time he asks a question and doesn't answer it?

    1. When I wrote this I was sort of a textualist as far as legal theory goes. A textualist cares little for the author's intent. The most important question is what the text means, from within itself. The reason is similar to what I wrote in the post: if we look at the person there is no end to what our conclusions might be, and law cannot be so imprecise. We must therefore ignore the person and focus only on the text. Part of this is ignoring what the author wanted to say and focusing instead on what the author said. In effect, if the author meant to say something but the plain meaning of his words reveal otherwise, it is his tough luck. He is not law; his words are.

      This is one reason why the Tosafos might not care "whether the amora really meant it," because more important than that is internal consistency within the legal document that is the Talmud. It is more important for the Talmud to make sense as a coherent, unified legal document than for one author's statement to be aligned with his personal intention. The "sealed law" of the Gemara is not the logic or the meaning behind the Gemara, but the dry words on the page. Those words are what the Tosafos seek to explain, so that the law that is embodied in those words can indeed cohere as an intelligible whole.

      But I no longer think this way. It would probably take a whole essay to argue the point, but I feel much more comfortable with R. Eliezer's view today than I did when I wrote this post. In "The Demon of Formalism" you can see where my mind is headed, although there is a lot more to the discussion than that. I mentioned this to you in the comments on "Talmudic Logic."

      In addition, I am not convinced that Tosafos ever thought this way. Maimonideans take this sort of approach, based on the Rambam's theory/tradition that R' Ashi effectively signed the Talmud into law, as R. Yehoshua would have it. But we find Tosafos sometimes deviating from the Bavli, especially when they basically out-and-out abolish rabbinic enactments such as not clapping on Shabbos and gevinas akum simply because the reasoning no longer applies. The Tosafos seem to want to use the Talmud, but want it to fit what currently works and makes sense rather than have people go back in time simply for the sake of some legal version of truth. As Tosafos themselves say in Shabbos (37a), "משום דקיי"ל כחנניה... דחיק לאוקמא מתני' כוותיה." And I know that based on my argument in "Talmudic Logic" I could be a stubborn R. Yehoshuanik and argue that the fact that Tosafos even see a דוחק as necessary shows that they do have the positivist attitude, I think an alternative explanation is more natural.

      There is a whole lot to say on the subject, but suffice it for now to say I'm just not comfortable with R. Yehoshua anymore, at least not as an absolute rule.

  6. Thanks for the lengthy response. I'm still digesting it.