www.TheLogician.net © Avi Sion - all rights reserved
© Avi Sion
All rights reserved
© Avi Sion, 1995. All rights reserved.
THE SINAI CONNECTION.
We shall now look into the issue of the Sinaitic origin of
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.
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
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.
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),
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.
context, including heqesh,
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.
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.
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.
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.
In the last analysis, whatever it is, it
is not a teaching of pure logic.
There are, to be sure, many aspects of it which are perfectly natural and
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
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",
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
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
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
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:
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
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.
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
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.
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
leMoshe miSinai] means nothing more than "very old," as in
the case of many Talmudic passages.
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
there are disputes concerning their validity and conflicting lists are offered,
the lists are incomplete and imperfectly organized,
most importantly that there are disagreements in the interpretations of the
individual principles themselves,
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
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
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,
but it has developed greatly in post-Talmudic literature. We quote Bergman,
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
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
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
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
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.
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
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,
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.
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),
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
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
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.
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).
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.
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.
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
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
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.
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
but since then, the "oral" law has in fact become more and
more exclusively written, and therefore subject to objective scrutiny.
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.
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.
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".
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
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.
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
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
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.
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.
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!
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.
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.
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.
Crediting the rest of, or the negation of, the subject with the
negation of the predicate, beyond the license given by eductive logic.
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.
Based on factorial induction theory; see my work Future Logic, again.
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?
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.
Historically, we should perhaps rather make a comparison to the Stoic
preachers of Roman times.
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.
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.
All quotations from Bergman, here, are from ch. 13 (pp. 120-156).
Bergman, needless to say, draws no negative conclusions from these or
any other issues; all criticism expressed here is the author's own.
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).
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.
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
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.
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.
Pes. 6b, quoted by Enc.
Jud. p. 371.
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.
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
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.
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.
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.
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.