R’ Moshe Halbertal’s paper on the nature of machloqes found three classical positions. (I blogged on this back in 2005; and you can see RMH’s original 1994 paper “The History of Halakhah, Views from Within: Three Medieval Approaches to Tradition and Controversy“.) As I summarized it then:

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…

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”….

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.

The Accumulative and Constitutive approach are both open to taking “Eilu va’Eilu divrei E-lokim Chaim“, that before pesaq, each side of a machloqes are the words of the “Living” G-d, quite literally. The difference is whether we limit this domain to, or also to deciding halakhah in cases that are already addressed, but it’s unclear yet how. Accumulative theory would mean that the only real machloqesin are when we need to extrapolate from existing halakhah to new cases. Otherwise, the role of a poseiq is to find the truth: What did Hashem tell us was allowed or not? What was the original intent of the beis din that established the law? And to find the truth, he uses the halachic process to get an answer he is permitted to rely upon.

I believe this is why the Rambam has the rule that there was never a true machloqes in an law that is halakhah leMoshe miSinai. Because such a law never had a formation period, there was no time in which one could extrapolate in different ways to different valid options. Any disputes in halakhos leMoshe miSinai are not true machloqesin — there was a correct answer, and someone in error. (And this distinction between “true machloqes” and machloqes being used non-technically to refer to a dispute even when between right and wrong would explain why the Rambam himself often discusses disagreements which seem to violate his rule. He could say that in these cases, one of the amoraim are wrong, as opposed to the pre-legislative true machloqes before either ruling accumulated to the law.)

Whereas Constitutive theory would include situations where the existing halakhah itself is open to multiple interpretations because halakhah is a law-defining process, not a fact-finding one. The halachic process guarantees a result that is valid, and by selecting one result out of a range of possibilities, the poseiq makes that one correct.

Also in that 2005 post I looked at R’ Michael Rosensweig’s article “Elu Va-Elu Divre Elokim Hayyim: Halakhic Pluralism And Theories Of Controversy“. R’ Rosensweig cites Rashi (Kesuvos 57a, “QM”L”) who discusses this kind of 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 Amoraim 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.

Notice that this also puts Rashi with the other rishonim on the Constitutive side of the question. Rashi does not limit true machloqes to decisions about new laws, but also in the realm of interpretations of existing ones.

In the past I posted my own opinion on the question:

Mesorah is a living tradition of a development of ideas. The Oral Torah is oral, a dialog across the generations. If we see a quote in the gemara from Rav Yochanan, we might be curious about the historical intent of Rav Yochanan. But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi’s meaning to be, which in turn can only be understood through the eyes of the Shaagas Aryeh and R’ Chaim Brisker.  That is the true meaning, in terms of Torah, of Rav Yochanan’s statement.

My instinct is that halakhah is Constitutive, and that in fact it’s really “only” the Rambam among the rishonim who holds otherwise. (What the geonim hold is a different discussion, and I have too little access to the sources to discuss it.) What’s interesting enough to me for me to have reopened the topic, is that this again is consistent the Rambam’s Aristotelianism. (Making this post a successor to the previous two: The Rambam’s Philosophy and Mesorah, and The Rambam, Knowledge and Akrasia.)

Aristotilian logic has two laws that force everything to be true or false in a very black-and-white manner:

• The Law of Excluded Middle: for any proposition, either that proposition is true, or its negation is.
• The Law of Contradiction: contradictory statements cannot both be true in the same sense at the same time.

In Aristotilian logic, a ball is either red or it is not. Which sounds logical until you consider concepts that have a more and a less — the ball is red in comparison to a blue one, but it seems a little less red than that third ball over there.

The Rambam actually drifts from this idea a bit in his discussion of Providence (Guide 3:18):

HAVING shown in the preceding chapter that of all living beings mankind alone is directly under the control of Divine Providence, I will now add the following remarks: It is an established fact that species have no existence except in our own minds. Species and other classes are merely ideas formed in our minds, whilst everything in real existence is an individual object, or an aggregate of individual objects. This being granted, it must further be admitted that the result of the existing Divine influence, that reaches mankind through the human intellect, is identical with individual intellects really in existence, with which, e.g., Zeiḍ, Amr, Kaled and Bekr, are endowed. Hence it follows, in accordance with what I have mentioned in the preceding chapter, that the greater the share is which a person has obtained of this Divine influence, on account of both his physical predisposition and his training, the greater must also be the effect of Divine Providence upon him, for the action of Divine Providence is proportional to the endowment of intellect, as has been mentioned above. The relation of Divine Providence is therefore not the same to all men; the greater the human perfection a person has attained, the greater the benefit he derives from Divine Providence.

The Rambam modifies the position he just attributes to Chazal by making humanness a set with blurry edges, something someone can be more or less of. And therefore someone who is fully human is fully subject to Divine Providence, but most of us are somewhere short of the end of the spectrum, and therefore receive Providence only occasionally.

But in general, his reasoning is very consistent with Aristotle’s work on logic and syllogisms. And so the Rambam will not gravitate toward a model in which a rabbi can explore a pre-existent fact and yet there are multiple possible correct answers. It violates the black-and-white nature of Aristotilian Logic, in which there is only one Truth. In the Rambam’s worldview, pesaq constructs new facts. There is no history of interpretation of a law.

To close with an example… When a gemara concludes that a mishnah should be taken in a manner that is far from the naive understanding of its words, Rashi will understand the mishnah accordingly. This is typical for a Constructivist, or as I wrote (quoted above), “But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi…” The Rambam, on the other hand, will rule as closely to the literal mishnah, and fit his understanding of the gemara accordingly. Because in his eyes, the entire discussion is an exploration of what the author or Author of the law meant, and thus one’s understanding of that source is the discussion’s anchor.

For an example of this example, Zava Qama 2:1, the topic of “chatzi nezeq tzeros — paying half the damages for damage caused by kicked pebbles”:

כֵּיצַד הָרֶגֶל מוּעֶדֶת לְשַׁבֵּר בְּדֶרֶךְ הִלּוּכָהּ? הַבְּהֵמָה מוּעֶדֶת לְהַלֵּךְ כְּדַרְכָּהּ וּלְשַׁבֵּר; הָיְתָה מְבַעֶטֶת, אוֹ שֶׁהָיוּ צְרוֹרוֹת מְנַתְּזִין מִתַּחַת רַגְלֶיהָ וְשִׁבְּרָה אֶת הַכֵּלִים מְשַׁלֵּם חֲצִי נֶזֶק….

In what way can ‘the [animal’s] foot’ be regularly [destructive] in the way it walks? The animal regularly walks on its way and breaks things. If [a calm animal] was kicking, or if pebbles were kicked from under its feet and broke utensils [its owner] must pay half-damages….

The gemara (ad loc, 17b) says:

אמר רבא: בשלמא סומכוס קסבר כחו כגופו דמי, אלא רבנן. אי כגופו, דמי כוליה נזק בעי לשלם, ואי לא כגופו דמי, חצי נזק נמי לא לשלם. הדר אמר רבא לעולם כגופו דמי, וחצי נזק צרורות הלכתא גמירי לה.

Rava said: It is well according to Sumkhus, who reasons that [the animal’s] power [which set the pebble moving] is like its body. But according to the Rabbanan — if [the power] is like its body, he should have to pay the entire cost of the damages, and if it is nore like [the animal’s] body, even half the damages he shouldn’t have to pay.
Afterward Rava said: It was always that [the animal’s power] is like its body, and the half-damages of pebbles is a received halakhah.

Rashi quotes “הלכתא גמירי לה — it is a received halakhah” in his commentary on the mishnah. Meaning, the whole issue is beyond our ken, but that’s what we got from Sinai.

The Rambam, in contrast, does provide an explanation of the halakhah. In his commentary to the mishnah, the Rambam says that this is an instance of an animal doing damage shelo kedarkah — in an unusual manner. He explains that there are two kinds of unusual manners: (1) a tame animal that rarely damages anything, or (2) the damage is indirect, caused by something that the animal set in motion, not the animal itself.

(Aside from them also disagreeing as to what “הלכתא גמירי לה” means, but that’s not our discussion.)

Rashi’s commentary fits Rava’s explanation, the Rambam’s fits the mishnah‘s opening question: What does it mean to have an animal whose leg regularly breaks things? Rashi follows halakhah as it flows down the ages, a process in which legislation unfolds. The Rambam tries to get at the meaning of the original source.

For the same reason the Rambam, between writing his Peirush haMishnayos and writing the Mishnah Torah, dismissed the notion of relying on later sources to interpret earlier ones — he instead confronts the texts themselves with a clean slate, trying to reach original meaning. He writes (Igeros haRambam, Silat ed. pg 305, 647) about approaching Chazal only through the primary sources without the tradition of interpretation of the ge’onim (tr. R’ Dr Marc Shapiro):

This confusion that people have with regard to the Perush HaMishnah is entirely due to the fact that I corrected it in places. The Creator knows that most of my mistakes were due to my having followed Geonim, z”l, such as Rabbeinu Nissim in his Megilas Setarim and Rav Chefetz, z”l, in the Sefer HaMitzvos, and others whom it is difficult for me to mention. (pg 305)
That which is codified in the chibbur [i.e. the Mishneh Torah -mb] is undoubtedly correct, and so we wrote as well in the Perush HaMishnah, and that which is in your hands [an early version of the Peirush haMishnayos -mb] is the first version which I released without proper diligence. And I was influenced in this by the Sefer HaMitzvos of Rav Chefetz, z”l, and the mistake was in his [analysis], and I just followed after him without verifying. And when I further evaluated and analyzed the statements [of Chazal], it became clear that the truth was what we recorded in the chibbur and we corrected the Perush HaMishnah accordingly. The same happened in so many places that the first version of the Perush HaMishnah was subsequently modified, tens of times. Each case we had originally followed the opinion of some Gaon, z”l, and afterwards the area of error became clear. (pg 647)

This focus on primary sources rather than an acknowledgment of the Torah’s inherent orality and fluidity means that the Rambam isn’t using a halachic process that remotely resembles the ones “everyone” else does.

If we buy into the Rambam’s model of what halakhah is — which, again, betrays an Aristotelian foundation that we have no compelling need to accept — it wasn’t just the innovations of the chassidim that bent the halachic process into an unacceptable pretzel, there are NO observant Jews today. And thus the contrapositive, if we accept the halachic process as practiced by acharonim and arguably most rishonim, then what do we do with what the Rambam describes?

On the other hand, that self-same “halachic process as practiced by acharonim” gives much weight to the Rambam’s opinion as a source.

So, can someone help reconcile me with shitas haRambam?