Before giving my own thoughts, I would like to discuss two recent articles on Eilu va’eilu:

• Moshe Halbertal on “The History of Halakhah, Views from Within: Three Medieval Approaches to Tradition and Controversy“
• R’ Michael Rosensweig’s article “Elu Va-Elu Divre Elokim Hayyim: Halakhic Pluralism And Theories Of Controversy“

As background: The gemara (Eiruvin 13b) speaks of a protracted debate between Batei Hillel and Shammai. Finally, a bas qol emerged and said “Eilu va’eilu divrei E-lokim Chaim, vehalakhah keBeis Hillel — these and those are the Words of the Living G-d (or: G-d of Life), but the law is like Beis Hillel.” (I already wrote on the role of this bas qol in defining law.) The question is whether this is meant literally, that G-d gave us multiple contadicting messages, and if so, how and why?

RM Halbertal proposes that there are three basic positions on plurality in halakhah:

1- Retrieval: All of Torah was given at Sinai, and therefore machloqesin (debates) are due to forgotten information.
He finds this opinion to be typical of many ge’onim and the Seifer haQabbalah, and is based on statements like “Why were there so many debates between the schools of Hillel and Shammai [when there were so few between the mentors themselves? Because they did not properly serve their rabbis.” Implied is that much was forgotten because of this lack of connection to the previous generation.

2- Accumulative: Torah is built analytically from what was given. Therefore, machloqesin come from different minds reaching different conclusions. This is the Rambam’s position among others. It comes from sources like Rabbi Aqiva’s “finding mounds and mounds of laws in the crowns atop the letters”.

Personally, I would be inclined to say that these need not contradict, and perhaps both types of debates occur. Except that according to the Rambam, there are no machloqesin in underived law; in his opinion this is one of the critical features of a halakhah leMosheh miSinai (a law given to Moshe since Sinai). The Rambam makes the flawlessness of the mesorah incontravertable. Only contructions are open to debate. So, while one may choose to embrace the idea that both occured, one must be aware that that’s not shitas haRambam.

3- Constitutive: The poseiq (halachic decisor) doesn’t discover what’s correct halakhah. Rather, part of the definition of “correct” is the poseiq’s say-so; Hashem gave them the power to decide and define law. This is the position of the Ramban, the Ritva and the Ran. A typical source: In order to make sanhedrin you needed to be able to find 49 arguments that something is tamei, and 49 that the same something is tahor. G-d gave us all 98 arguments, and empowered the rabbinate to decide which is law.

Here, I don’t see why one must assert they are different. After all, even the Ramban and his students don’t give the poseiq carte blanche. He may have the power to define law, but there are limits to which definitions are valid. It would seem from the Ritva (see the quote below, in the discussion of the other article) that the process of finding choices fit the “accumulative” model; G-d could have given us all 98 arguments not directly, but implicitly for us to derive. The argument the poseiq actually derives and finds authoritative could then be correct because of the “constitutive” model, because that’s man’s role in the halachic process.

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R’ Michael Rosensweig’s article gives a different perspective. (I’m skipping the first two sections, getting right to the subject of machloqes within halakhah. Otherwise the scope would be too broad for this format.)RMR cites the ma’aseh of “eilu va’eilu” (Eiruvin 13b) and the gemara (Chagiga 3b) describing learning as one rav insisting tamei, the other tahor to open a discussion of halakhic plurality.The Nesivos haMishpat holds that in reality one opinion is wrong, but the mitzvah of talmud Torah includes the studying and winnowing out of wrong opnions. RMR understands this to mean that studying these opinions is part of the encounter with devar Hashem (word of G-d).The Netziv defines two types of pesaq:

• Hora’ah, dating back to the role of the kohein. From this perspective, both positions are the “substance” Torah, in a literal understanding of “eilu va’eilu”.
• Hakhra’ah ledoros (making a determination for generations), the logical analysis of the shofeit mechoqeiq (legislating judge). This produces the hilkheta gemirei (deduced conclusion), and as Moshe Rabbeinu was taught “everything that a student will in the future give hora’ah”, Moshe was actually taught that one was more true than the other as he was told which will be the future hora’ah. Within this category, there are two subtypes:
  • Nitzotzos (term taken from Sanhedrin 34a), or netu’im (from Chagiga 3b), which maintain some or Torah (light of Torah), but of lesser quantity.
  • Those which are outright rejected.

RMR then shows that the Rama might conform to this model.

Rashi (Kesuvos 57a, “QM”L”) seems to support a real plurality. To quote:

When a debate revolves around the attribution of a doctrine to a particular individual, there is only room for one truth. However, when two Amorairn enter into a halakhic dispute, each arguing the halakhic merits of his view, each drawing upon comparisons to establish the authenticity of his perspective, there is no absolute truth and falsehood. About such issues one can declare that both represent the view of the living God. On some occasions one perspective will prove more authentic, and under other circumstances the other view will appear to be more compelling. The effectiveness of particular rationales shift as conditions of their application change even if only subtly.

The Ritva (on “eilu va’eilu”, Eiruvin 13b) writes, “When Moshe ascended to receive the Torah, it was demonstrated to him that every matter was subject to forty-nine lenient and forty-nine stringent approaches. When he queried about this, God responded that the scholars of each generation were given the authority to decide among these perspectives in order to establish the normative halakha.”

The Ritva’s phrasing, that matters being subject to 98 different approaches rather than Moshe being given 98 interpretations seems to me to be what R’ Moshe Halbertal called the “accumulative” approach, even though he then continues to weave it with the “constitutive” one. But to return to R’ Rosensweig…

The Maharshal writes that since each soul was at Har Sinai, each soul presents its perspective on emes. The soul doesn’t simply passively report the emes. The Maharal similarly peaks of a the Ideal pesaq as manifest in heaven, and how man in the “real world” can only approximate that Ideal. (Very Platonic, to my ear.) The reason for plurality is because the actual truth can’t be fully captured within this world.

This last opinion reminds me of R’ Moshe Koppel’s position in “Metahalakhah”. He argues that halakhah is best transmitted the same way grammar is: the native speaker’s feel for right and wrong. It’s only due to loss of our status as “native speakers”, our progressive lost of the Sinai culture, that we need to codify rules. And just like codified rules of grammer, the rules only approximate the reality they’re trying to describe. The Maharal says that this world can’t capture halakhic truth, whereas RMK is arguing that even of that which was given at Sinai, it could not fit a rule set.

RMR opens section IV with an explicit statement of the “constitutive” perspective. Since halachic truth includes plural views, the poseiq is defining which truth is law. The fact that the other is true doesn’t make is any more acceptable as a fall-back position legally.

According to the Maharshal and the Arukh haShulchan, the need for pesaq is “so that it will not be like there are two Toros”. Since either position is truth, it’s not a need to determine Torah, but that of communal unity. The zaqein mamrei (a rebellious elder who refuses to bring his ruling in line with the Sanhedrin’s) is punished because the effects of his actions (“like two Toros”, ruining the entire concept of halachic process) are so damaging — not because he’s promoting falsehood.

The Ran and the Chinukh apply lo sasur (do not disagree) to modern rejections of rabbinic conclusions, not only the zaqein mamrei in the Sanhedrin. Maharam ibn Habib (aside: should I recognize this name?) applies a ZM parallel to any judge, and “we do not divide money according to the majority” (ie rulings are all or nothing, you don’t make someone repay proportionally according to the percentages of votes among the judges) requires him to acquiesce to the majority.

[In part II I will iy”H discuss my own thoughts and opinions on the subject.]