Rabbi Shlomo Riskin’s new book, The Living Tree: Studies in Modern Orthodoxy, has just appeared. The Seforim Blog is happy to present this selection from it.
Halakhic Pluralism in the Eyes of Rishonim and Aharonim
In many of the off-hand remarks of the early commentators, their advocacy of the principle of halakhic pluralism is plain to see, regardless of whether these great authorities stemmed from Ashkenaz, Sepharad, or Provence. They repeatedly express the pluralistic principle of “these and those are the words of the Living God.”
Rashi, in his commentary to Ketubot 57a, writes:
W hen two [sages] argue over the statement of one [who was their master], and one sage says that this is what the master said and the other says that this is what the master said, one of them is lying. But when two Amora’im argue regarding a civil or ritual halakhic issue, and each one maintains the logic of his position, there is no falsehood. Each one is expressing his logic, the one master giving a reason for permitting and the other master giving a reason for prohibiting, one master compares issue to issue in such a fashion, and the other master compares it in another fashion. It is necessary to say, “these and those are the words of the Living God”; sometimes this logic pertains and sometimes that logic pertains, because the logic changes even on the basis of a small change in the issues at hand.
The Ritba (Rabbi Yom Tov ben Avraham Asevilli, 1250–1330) on Eruvin 13b comments as follows:
“These and those are the words of the Living God.” The rabbis of France asked, How is it possible for both views to be those of the Living God when one prohibits and the other permits? And they answered: W hen Moses went on high to receive the Torah he was shown forty-nineways to permit and forty-nine ways to prohibit every object. He asked the Almighty concerning this, and He said, “Let these [matters about which there are so many possibilities] be handed over to the sages of Israel in every generation, and let the resolution be in accordance with their will.”
Rabbi Menaĥem Meiri (1248–1316), in his work Beit HaBehira, commented on Yevamot 14a:
That which the Torah commanded lo titgodedu (“Do not slice yourselves up” – Deut.14:1), even though its principal meaning is not to wound oneself as an expression of mourning for one who has died, there is a nuance [within the word titgodedu which may be interpreted to mean] not to turn the commandments into separate divisions [agudot], and this is to prohibit several individuals from performing ritual in one way while others per- form the ritual in a different way, until it appears as though we are being led by two Torahs. But this prohibition applies only when a city has only one court, and when even this court is itself divided, with one component group deciding in accordance with one view and another component group in accordance with another view. But whenever there are two judicial courts, albeit in one city, and one court is accustomed to deciding in accordance with this view and the other court is accustomed to deciding in accordance with that view, this does not represent separate divisions because it is impossible for everyone to always agree on one opinion. This is certainly true regarding actions based upon custom, where there is no objection if these act in such a way and those in another way.
Even during the period of the later commentators, the idea of halakhic pluralism finds expression. Admittedly, works such as the Kitzur Shulhan Arukh of Rabbi Shlomo Ganzfried, which records only one authoritative opinion – unlike the original Shulhan Arukh, which includes the opposing views of Rabbi Karo and the Rema – seem to imply a more monistic halakhic approach. A ringing defense of pluralism is to be found in the words of Rabbi Chaim ben Rabbi Bezalel, brother of the Maharal, who studied together with Rabbi Moshe Isserles (the Rema) in the mid- sixteenth century in the yeshiva of Rabbi Shalom Shachna. He wrote Viku’ah Mayim Hayim (usually included at the end of the Rema’s Torat Hatat), in which he vigorously argues against any written halakhic codification reflecting only one halakhic opinion:
Only after [the decisor] has studied all of the legal disputes which have arisen regarding a specific law can his word run quickly into the sea of wisdom…Moreover, the mind of an individual is not always consistent and perhaps his mind is not disposed to give the same halakhic ruling which he gave yesterday; there is not in this any change or deficiency [which would lead us] to say that through him the Torah is becoming like two Torahs, God forbid. The opposite is the case; this [manner of halakhic investigation, exploring multiple opinions] is the path of Torah, and “these and those are the words of the Living God.” (Elon, Mishpat HaIvri, 37)
A fascinating contrast is to be found in the writings of two cotemporary religious leaders, Rabbi Moshe Feinstein and Rabbi Yitzhak Hutner. The former, world-renowned halakhic decisor of our generation, utilizes the expression “these and those are the words of the Living God,” but nevertheless posits that one argument may ultimately be more correct than the others:
And this is the matter concerning all of the disputes of our earlier and later sages, when one forbade and the other permitted: whenever the [law] was not resolved in accordance with one [of them], any [rabbi] could rule in his locality in accordance with his logic, even though the true law is only in accordance with one of them…Both are the words of the Living God, but the real truth, revealed before heaven, is only like one of them.
Nevertheless, Rabbi Moshe Feinstein insists that with regard to reciting the blessings on learning Torah and fulfilling the commandment to study Torah, no differentiation should be made between texts containing majority opinions and texts containing minority opinions. All Torah texts are worthy since “these and those are the words of the Living God” (Iggrot Moshe, Orah Haim 4:9, 24).
Rabbi Yitzhak Hutner, on the other hand, accepts the talmudic view that disputes arose as a result of insufficient study or forgetfulness, a view which we initially equated with the monistic approach to halakha. Nevertheless, he resoundingly affirms the positive role of disputes in enlarging the scope of Torah and initiating novel ideas therein. He even reads into this view of the origin of halakha a bold concept of halakhic pluralism:
Sometimes, the nullification of Torah is its very confirmation, as it is written, “the tablets which you have broken.” [God said to Moses], “May your strength increase because you have bro- ken them; the act of breaking the tablets is an act of confirming the Torah through its nullification.” Our sages have said, “Were the tablets not broken, Torah would not have been forgotten in Israel” (Eruvin 54a); we find therefore that the breaking of the tablets contains an aspect of forgetting of the Torah. We learn from this an awesome and novel idea: it is possible for Torah to be increased through its having been forgotten, and it is possible to be blessed with increased strength because of the Torah having been forgotten!
Go out and see what our sages have taught: three hundred laws were forgotten during the mourning period for Moses, and Otniel ben Kenaz restored them with his logic and casuistry (Temura 16a). And even more than that: every dispute in halakha stems from the fact that Torah was forgotten, and nevertheless our sages declared, “Even though these purify and those defile, these invalidate and those permit, these exempt and those obligate, these and those are the words of the Living God.” Hence, all different opinions and differing views contribute to the growth of Torah and its majesty, which…is emphasized to a greater extent by the Oral Law which is revealed in disputes rather than by agreement, because “these and those are the words of the Living God” includes the principle that even the rejected view in halakha remains Torah knowledge as long as it was expressed as part of the give-and-take of the Oral Law…and if there will be a vote afterwards and the decision is in accordance with the rejected view, from then on halakha will be different in truth.
The “battles” within Torah are not simply one of many possible ways of (acquiring) Torah, but rather the positive creation of new Torah values which cannot be found in the words of Torah… And the two sides which clash in halakha become partners in the creation of a new Torah value whose name is “the battle of Torah.” (Pahad Yitzhak, Hanukka pp. 36–37)
Despite all this, pluralism is obviously not open-ended. Starting with the biblical story of the Tree of the Knowledge of Good and Evil which opens the Book of Genesis and serves as an introduction to the entire Torah, it is clear that God demands that the definition of what is good and what is evil must emanate from an objective source beyond the subjective individual. Indeed, even though the fruit was “good to eat, a temptation to the eyes, and a desirable way to gain wisdom,” the Almighty nevertheless decided that it was evil to partake of it. And from the talmudic period until the Emancipation, the partners to the “these and those are the words of the Living God” disputes each accepted upon themselves an external and objective halakha. Submission to a higher autonomous system was the axiom of halakhic dispute. Hence, a non- Orthodox system cannot claim halakhic legitimacy under the rubric of “these and those are the words of the Living God.” While we may certainly learn from serious Jews of any or no religious persuasion, both tradition and logic dictate that halakhic legitimacy can only be accorded to those who accept upon themselves the axioms upon which the halakhic system is based.
Although a non-halakhic theological system cannot claim for itself a voting voice in a forum of halakhic discourse, I believe it is crucial that the tent of Orthodoxy be as broad, open, and inviting as possible. Even a halakhic position which the Orthodox majority rejects, but which, nevertheless, has a legitimate halakhic basis to rely upon, should be given due consideration.
Within the world of halakhic Judaism, the most striking affirma-tion of the benefits of a pluralistic approach is to be found in the words of Rabbi Avraham Yitzhak HaKohen Kook, in Olat Re’iya, volume 1, p. 336:
The multiplicity of views which arise as a result of the differences of personalities and educational backgrounds is specifically the fact which most enriches and broadens wisdom. Ultimately, all issues will be properly understood, and it will be recognized that it would have been impossible for the Building of Peace [the Third Temple] to have been erected had it not been for all those influences which appeared to have been in conflict.
According to Rabbi Kook, it is the sum total of many different ideas and ideologies which will ultimately lead to a shared vision that expresses true peace; the authentic symphony is the product of many different musical instruments melding together in majestic harmony.
 It is interesting to note that according to Rabbi Ben-Zion Uziel, the first Sephardic chief rabbi of the State of Israel, in his Piskey Uziel (page 26, siman 10), Rashi would permit two different courts – for example, Sephardic and Ashkenazic – in one city, since he explains the prohibition of making divisions “lest it appear that we are acting in accordance with two Torahs” (Rashi on Yevamot 13b) and different communal customs do not suggest two Torahs. Maimonides, on the other hand, would prohibit this since he maintains that the prohibition of making divisions, “that there not be two courts in one city, this one in accord with this custom and that one in accord with that custom, for this matter causes great dissension” (Mishneh Torah, Hilkhot Avoda Zara, chapter 12, law 14). Rabbi Avraham Yitzĥak HaKohen Kook, in Ezrat Kohen, siman 103, par. 17, rules that the Sephardic and Ashkenazic communities in one city are separate, and the prohibition of making halakhic divisions does not apply to them. Rabbi Kook cites the Shakh to Yoreh De’ah 242, who limits the prohibition, “Do not slice yourselves up” to dissension within the same court in one city.