Printable PDF available here. Previous years’ pieces on Parshat Shoftim can be found here and here.

Rav Kook (Based on Igrot ha’Reiah 103)

If a matter eludes you in judgment… then you shall rise and go up to the place the Lord, your G-d, chooses. And you shall come to the Levitic kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment. And you shall do according to the word they tell you, from the place the Lord will choose, and you shall observe to do according to all they instruct you. (Devarim 17:8-10)

I believe that it is incumbent on us to create an opening in the partition that separates the disciplines of halacha and Aggadah. Each discipline can benefit from and draw upon the unique wisdom of its counterpart. Aggadah speaks to the wisdom of the heart and the mind, and all of the Torah’s laws regarding beliefs and thought draw upon the domain of Aggadah. By contrast, halacha is the wisdom of practical conduct.

Each of these domains is nourished from a different ‘root’ in the holy Torah. The world of halacha draws on human wisdom and cognition, while Aggadah is rooted in the world of prophecy. Maimonides (Hilchot Yesodei haTorah, Chapter 9) erected an iron wall between these two disciplines, insisting that prophetic insight has absolutely no role to play in the halachic process. However, it is apparent that other Rishonim disagreed and saw nothing wrong with granting some level of halachic credence to prophecy. Indeed, this is the simple meaning of the first mishnah in Pirkei Avot, which records the early chain of transmission of the Oral Torah. That mishnah teaches that the “elders” passed the tradition on to the Prophets (lit. וזקנים לנביאים). It seems implausible to assert – as Maimonides presumably would – that their prophetic powers had no role in their custodianship of the tradition, that they received the tradition in their capacity as Sages and not in their capacity as prophets. Other Talmudic proofs can similarly be marshalled to demonstrate the role of prophecy in halacha.

Because the Land of Israel is the only place where prophecy exists, the prophetic dimension of halacha finds unique expression in the Land. Ordinary halachic discourse is deductive and methodical. Arriving at a conclusion involves a lengthy series of proofs, counterproofs and analogies, as anyone familiar with the Babylonian Talmud can testify. In contrast, prophecy arrives at truth rapidly and by means of an inner intuition. Instead of plodding forward on a dark path with a candle in one’s hands, flashes of lightning illuminate one’s entire surroundings. The structured and logical process of pure halachic reasoning is bypassed and one is led by a higher form of consciousness.

This is why the Talmud Yerushalmi is terse and concise, in contrast to the exhaustive and sprawling style of the Talmud Bavli. Unlike their counterparts in Babylonia, the inner intuition of the Talmudic sages in Eretz Israel enabled them to clarify matters with directness and brevity. Illuminated by a supernal light, their broad gaze could intuit halachic conclusions from the most subtle of hints or allusions. “The very air of the Land of Israel makes one wise” (Gemara Bava Basra, 158b).

The different spiritual paths of the Talmud Bavli and Talmud Yerushalmi may illustrate a dispute regarding the zaken mamre, the rebellious elder who brazenly disregards the ruling of the Sanhedrin. The Torah writes that the disputed ruling relates to a ‘matter’ (lit. דבר). While the Talmud Bavli interprets this as a reference to Halacha, the Talmud Yerushalmi understands it as a reference to Aggadah.

Apparently, the Sages of Israel maintained that even aggadic matters – issues of belief and faith – were subject to definitive adjudication by the nation’s highest court, while the Sages of Babylonia disagreed. The basis of this dispute is readily apparent. In the Land of Israel, the style of Torah study was permeated with prophecy and transcendent spiritual wisdom. And so even aggadic matters could be clarified with decisive finality. The Sages of Babylonia did not believe that this was possible. For them, human reason was the primary means of determining halachic truth. Granted, the human intellect is powerful enough to be Divinely entrusted with binding authority in matters of halacha. But it will always fall short of absolute certainty in the matters of belief and faith that compromise the world of Aggadah.

Food for Thought

Chovot haLevavot (Introduction): Scripture says “if there arise a matter too hard for you in judgment, between blood and blood, between plea and plea, between affliction and affliction…and you shall do according to the sentence which they declare to you” (Deut. 17:8-10). If you examine what subjects are included in the first verse, you will find they are things which need to be detailed, distinguished, and discussed by the method of Tradition, and not by that of logical demonstration from Reason alone. You can see, the verse does not include matters which can be attained through Reason. For he did not say, for example, “when you have a question on the Unity of G-d”; or regarding the Names and attributes of the Creator, or as to any of the roots of the religion, such as the service of G-d, trusting in Him, submission before Him, devoting activities to Him, purifying conduct from the damage of detrimental things, repentance from sins, fear and love of Him, being abashed before Him, making a spiritual accounting, and similar duties which can be fulfilled through reason and recognition. He did not say to accept them on the authority of the Torah Sages and to rely only on the Tradition. On the contrary, Scripture says in regard to these to reflect on them to your heart and to apply your intellect on them after having first accepted them from the Tradition, which covers all the commandments of the Torah, their roots and branches. You should investigate them with your intellect, understanding, and judgment, until you will sift the truth of it from the false [notions], as written “therefore, know this day and consider it within your heart, that the Lord, He is G-d” (Deut. 4:39).

More Regarding the Talmud Yerushalmi (from Simcha Friedman, Emunat Hakhamim, Tradition 27:4): Rashi (on the above passage in the Babylonian Talmud) states: davar refers to the halakhot given to Moses at Sinai.” The commentators to the Jerusalem Talmud – the authors of Korban ha-Edah and Penei Moshe (in his Mar’eh ha-Panim) – follow suit. The latter echoes Rashi in explaining the term aggadah used in the Jerusalem Talmud in its non-literal meaning: “It may be that “aggadah”… is that which was told (mah shehugad) orally, hearkening back to the halakhah given to Moses at Sinai.”

Rabbi Chaim Eisnen (Maharal’s Be’er ha-Golah and His Revolution in Aggadic Scholarship): In the halakhic domain of talmudic literature, a staggering wealth of systematic analyses and codifications emerged during the medieval period of the rishonim (early rabbinical commentators). These classics remain the foundation of all serious talmudic erudition. Astoundingly, there was little simultaneous, parallel development in the realm of Aggadah. With some notable exceptions, this vast corpus eluded comprehensive treatment until the early period of the aḥaronim (later rabbinical commentators)…

Ramban (as quoted and discussed by Rabbi Marc Angel): The demand that one must believe all the words of our sages in the aggadah came into question in the famous disputation in Barcelona in 1263. Rabbi Mosheh ben Nahman, the Ramban, was challenged by his Christian opponent with an aggadah that stated that the Messiah was born on the day that the Temple in Jerusalem was destroyed. The Ramban responded: “I do not believe in this aggadah at all…” He went on to explain that Jewish religious writings are divided into three traditional categories: Bible, Talmud and Midrash. “The first we believe entirely…; the second we believe when it explains laws. We have yet a third book which is called Midrash, sermons so to speak…; and this book, if one wishes to believe it he may, and one who does not believe it does not have to… We call it a book of aggadah, which is to say discourses, that is to say that it merely consists of stories which people tell one another. “

This explanation of the Ramban was rejected by those who insisted on maintaining the truth of all the words of our sages. Some argued that the Ramban never meant what he said, that he only said it to deflect the challenge of his opponent. The Sedei Hemed wrote that it is forbidden even to think that the Ramban meant what he said. Writing over two centuries after the disputation, Rabbi Yitzhak Abravanel strongly disavowed the statement of the Ramban because “it opens the gates to undermine all rabbinic authority when we consider any of their words as errors or foolishness.

Questions for Discussion

1. Could there be an alternative explanation for why the Talmud Yerushalmi is much shorter and terser than the Talmud Bavli?
2. What are some differences between contemporary religious life/Torah learning in Israel vs. in the Diaspora?
3. Why is it important to learn aggadah?
4. What do you think Rav Kook means by creating “an opening in the partition that separates the disciplines of halacha and Aggadah”?
5. In the absence of a Sanhedrin, how do we determine what positions in matters of belief and faith are beyond the pale?

Printable PDF available here.

Rav Kook (Based on Igrot haRe’iah Vol. 2, 123)

If a matter eludes you in judgment… then you shall rise and go up to the place the Lord, your G-d, chooses.And you shall come to the Levites, the Kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the matter of judgment. (Devarim 17:9)

Torah is comprised by two different disciplines – aggadah and halacha. The latter deals with practical conduct, while the former addresses the wisdom of the heart and the realm of ideas. Each of them derives their vigor from different roots of our holy Torah. Halacha comes from intellectual, cognitive wisdom (lit. חכמה), while the world of aggadah draws upon prophecy.

The role of prophecy in halachic adjudication has not yet been charted with satisfactory precision. Granted, the Talmud records the principle that the power of halachic decision making “is not in heaven” Bava Metzia 59), and this is cited by the Rambam in Mishnah Torah as an absolute rule. However, Rambam’s extreme formulation was not adopted by many other great rabbinic figures, and there are many sources in Chazal with which it is not easily reconciled.

It would seem more accurate that the exclusion of prophecy from the halachic process is only general rule, with various exceptions and qualifications. Indeed, the very first mishnah in Avot, which teaches that the zekeinim passed the Torah tradition onto the Nevi’im, highlights the role of prophets in the transmission of the Oral Torah. It seems overly contrived to insist that these links in the chain of our mesorah were prophets only by happenstance, and that their prophetic powers had no role to play in the Torah that they learned and taught. There are also Talmudic passages (such as Zevachim 62a) that refer to the involvement of prophets in halachic decisions.

And even if prophecy is disqualified from formally resolving halachic disputes, it is evident that the inner character of halachic study is molded and shaped by prophecy. For this reason, we find that the discourage of the Sages of Eretz Yisrael, the only place where prophecy is possible, was shorter and more straightforward than that the Babylonian sages. The latter required a lengthy and complex dialectic to clarify matters of Torah law, a style that is familiar to anyone who has ever studied the Babylonian Talmud. However, as the “atmosphere of Eretz Yisrael confers wisdom” (Bava Basra, 158b), the Sages who lived in the holy land perceived Torah truths with a calm, inner intuition and a broadness of mind. Thus, unlike the expression commonly found in the Talmud Yerushalmi, “Ta chazi” or “Ta chami” (“Come and see”), the Babylonian Talmud uses the expression “Ta shema” (“Come and hear”). “Ta shema” indicates a greater distance from the source, analogous to the difference between the clarity of that which is seen as opposed to that which is only heard.

This matter finds expression in a fascinating dispute between the Babylonian Talmud and the Talmud Yerushalmi. Parshat Shoftim describes the responsibility to consult the Sanhedrin on disputed matters of Torah law (lit. דבר המשפט), and the eventual punishment of a rebellious Sage who refuses to accept the Sanhedrin’s authority. While the Babylonian Talmud (Sanhedrin 87a) teaches that the word “דבר” is a reference to halacha, the Talmud Yerushalmi teaches that it refers to aggadah. Evidently, the Sages of Eretz Yisrael were able to conceive of binding, authoritative resolution to matters of aggadah, but the Babylonian Sages were not. The latter were too removed from the inner spiritual intuition of prophetic consciousness for that to be a realistic possibility. As noted earlier, their discourse was characterized by meticulous intellectual reasoning; this approach bears great fruit when applied to halacha, to matters of practical conduct, but it is incapable to drawing definitive conclusions in the realm of aggadah, which flows from the inner wisdom of the heart and the realm of ideas.

The written Torah also alludes to these two different approaches. In Parshat Shoftim, the Torah commands “You shall approach the Levite/the Kohen and the judge who will be at that time.” Why mention both the Kohen and the judge? The answer is that their roles were not the same. Judges practices the halachic approach of the Babylonian sages, and worked with a process of clear and methodical deductive reasoning. Granted, the Kohanim also used their intellect (as halacha is not a magical, esoteric process), but also drew upon ruach ha’kodesh and higher spiritual inspiration to clarify the halacha. This is particularly true of the Kohen Gadol, who required Divine inspiration in order to consult with the Urim and Tumim.

To our sadness, we no longer have prophecy and as a result, the maximalist interpretation of Torah “not being in heaven” is the one we must follow. We no longer have the inner clarity and spiritual intuition embodied the Talmud Yerushalmi, and so our approach to halacha is based on the Babylonian Sages and the Babylonian Talmud. But with the return of Israel to the Land of Israel, we eagerly look forward to the day when Torah can return to its full splendor.

Food for Thought

Rabbi Asaf Bednarsh (Har Etzion Virtual Beit Midrash): According to one answer in Tosafot, the general rule is that we do, in fact, decide the halakha based on a heavenly voice or other supernatural proof. Only in the case of the “Oven of Akhnai, where R. Eliezer demanded explicitly that a heavenly voice attest to the correctness of his opinion, do we suspect that the heavenly voice might have fibbed in order to preserve the honor of R. Eliezer. Tosafot assumes that G-d is so concerned for the honor of Torah scholars that He would even send out a false message to protect R. Eliezer’s honor – even though R. Eliezer foolishly backed himself into a corner by demanding heavenly evidence – and that G-d would rely on the assembled Sages to know better than to heed this white lie (and, indeed, they did know better).

According to the second opinion in Tosafot, we accept the conclusion of the story of the “Oven of Akhnai” and assume that supernatural evidence cannot override the normal workings of the halakhic process. The heavenly voice that favored R. Eliezer has no authority to override the principle of majority rule that was referenced by R. Yehoshua. However, we do grant authority to the heavenly voice that decided in favor of Beit Hillel, because, as mentioned in the gemara there, there was no clear majority on the side of Beit Shammai. Beit Hillel was numerically larger than Beit Shammai, but it was universally acknowledged that the Sages of Beit Shammai were sharper that those of Beit Hillel. Apparently, Beit Shammai and Beit Hillel disagreed regarding the question of whether the halakha should follow the school with the larger population or the one with more intellectual prowess. This created a logical conundrum, for according to Beit Hillel’s opinion, Beit Hillel was in the majority and therefore should be followed, but according to Beit Shammai, Beit Shammai constituted the majority and their opinion must be followed. In such a case, where the standard halakhic process has no way of resolving the dispute, there is room for a heavenly voice to intervene and tell us what to decide.

According to this opinion, supernatural evidence does have authority within the halakhic process, but only when it does not contradict the accepted rules of halakhic decision making.

The Rambam seems to have a third opinion about the scope of this principle. He writes that if anyone were to bring supernatural proof to buttress a claim that we should add, subtract, or modify a mitzva of the Torah, he is to be considered a false prophet and is liable to receive the death penalty. Likewise, adds the Rambam, even if this person were merely to claim that the halakha should follow a particular side of a dispute, he is considered a false prophet, because he contradicts the principle of lo ba-shamayim hi. The Rambam thus assumes that the principle of lo ba-shamayim hi is universal and allows no exceptions. Even in the case of an unresolved halakhic dispute, where there may be no clear halakhic precedent that dictates whom the halakha should follow, it is anathema to bring supernatural evidence and involve the Heavens in an earthly halakhic dispute.

According to the Rambam, the heavenly voice that favored Beit Hillel is granted no authority whatsoever. We must therefore conclude that the halakha follows Beit Hillel not because of any heavenly voice, but rather because the majority of Sages in the later generations agreed with the logic of Beit Hillel, in accordance with the normal halakhic process.