Volume 24 Number 98
                       Produced: Wed Sep 25  3:59:33 1996

Subjects Discussed In This Issue: 

Science and Halacha
         [Chana Luntz]


From: Chana Luntz <heather@...>
Date: Sun, 22 Sep 1996 01:40:45 +0100
Subject: Science and Halacha

In message <199609180640.CAA10684@...>, David Glasner
(<dglasner@...>) writes:
>The passage
[Devarim 17:8-13 which was quoted in the post but which I have deleted
for space reasons]
> evidently gives unlimited discretion to the judges of each
>generation (the Sanhedrin of 70) to interpret the law.  It also imposes
>an absolute obligation to follow their rulings (*lo tasur min ha*davar
>asher yagidu l*cha yamin u*smol*).  The rabbis interpreted this to mean
>that you must obey their rulings even if they say that right is left or
>left is right (i.e., even if their decision is based on an objectively
>false premise). 

The second part of the above paragraph is obviously correct.  An
absolute obligation is placed on the individual to follow the reasoning
of the Sanhedrin.  However the first sentence is neither implied by the
pasukim [verses] of Devarim quoted, nor is it correct halachically.  The
halacha, unlike the English system of equity - is not necessarily what
the judges say it is (the length of the Chancellor's foot). If it were,
a good portion of Masechta Horayas would be unnecessary.

The first Mishna in Horayas begins by discussing the case where a beis
din makes a mistake in one of the halachas of the Torah, and an
individual follows the ruling.  The halacha is, as one would expect,
that the individual is patur [exempt] from bringing a korban [sacrifice]
(after all, he or she did wbat she was supposed to, namely followed the
ruling even when the beis din said left was right), but the beis din
itself is chayav [obligated] in a korban. That is, it is recognised that
a beis din can make mistakes in the correct law.  Later the masechta
discusses the special case and sacrifice to be brought when the beis din
erroneously poskened to do avodah zara. (Note all of this is codified by
the Rambam in hilchos shigigos perek 14). For a wider discussion of the
awesome responsibility of judges and how they are to regard the matter
of judgment see the first perek in Sanhedrin.  However the mere
existance of these korbanos makes it clear that there was no *unlimited*
discretion given to judges or the Sanhedrin to interpret the law.

> The absolute authority given to the Sanhedrin of each
>generation implies that each Sanhedrin was authorized to change the law
>as established by judges of a previous generation.  The Rambam so
>codifies in Hilchot Melachim 2:2.

I think you mean Hilchot Mamrim 2:2 (Hilchot Melachim 2:2 deals with the
prohibition on a king's wife remarrying after his death).

In Hilchos Mamrim 1:2 Rambam brings the halacha that any person who does
not act as the Sanhedrin poskens, is over on a lo ta'aseh [negative
commandment]. To make the matter quite clear the Rambam spells out that
it makes no difference whether 'it is a matter which they heard - that
is Torah she baal peh, or whether it is a matter that they learnt
through their daat [intelligence] by way of one of the methods by which
the Torah may be interpreted [shehatorah nidreshet b'hem] and it seems
in their eyes that the matter is like so, or whether the matter is one
where they are making a fence around the Torah, because the hour so
needs, and these are gezerot and takanot and minhagot.  And each one of
these three things, it is a positive mitzvah to listen to them, and if
he is over any one of them, he is over a negative mitzvah".

Then the second perek ie the portion you are referring to. 2:1 reads: "A
Sanhedrin who derives from one of the methods by which the Torah may be
interpreted according to what seems in their eyes that the law is like
so, their judgement is a judgement.  And if later another beis din is
established and it seems to them that there is another reason to refute
them, behold this is refuted and they judge according to what seems in
their eyes, as it says 'to the judge that is in your days' - you are not
obligated to go except after the beit din which is in your generation'".

As can clearly be seen when these two passages are read together, there
are three different categories under which a matter could fall, and
although an individual is required to follow a beis din decision
regardless of category, it is only in relation to one category that the
Rambam brings his halacha regarding disregarding the rulings of previous
betei din, namely the one where the Sanhedrin is using one of the
traditional methods by which the Torah may be interepreted using their
own intelligence and coming out with a derived result.  Thus the case of
the Oral Law, although explicitly mentioned in 1:2 it is conspicuously
absent in 2:1.

>  For example, a Sanhedrin could
>theoretically have applied lex talionis literally.  (The Rambam in his
>introduction to his commentary on the Mishnah asserts, without citing
>any source, that historically this never did happen, but he cannot have
>meant that it never could have happened.)

He most certainly did mean it could never have happened.  In fact in
hilchos chubel omazik perek 1 halacha 6 he makes it clear that although
the lex talionis was written in Torah she bichtav that it is not meant
literally is halacha Moshe meSinai - and rather there exist five forms
of monetary compensation.  For any beis din to have poskened differently
would have meant they were violating halacha Moshe miSinai.

>  Indeed based on the verse *lo
>ba*shamayim hi* the Sanhedrin overruled the Heavenly Court as recorded
>in B. Bava Mitzia 58a-b.  The only limitation on the authority of the
>Sanhedrin is that an edict (gezeira, takanna) of an earlier court may
>not be rescinded by a later one that is not greater in number and wisdom
>than the earlier one.  Hilchot Melachim 2:1.

Actually, that is Hilchot Mamrim 2:2.  If you understand that 2:1 is
dealing with the case number 2 in Rambam's original list, and this
halacha is dealing with case number 3 in Rambam's original list (eg
takanot and gezerot), you can see the pattern - ie in one category the
beis din may disagree with an earlier beis din, in the second category
only if they are greater in number and in wisdom, and in the third
category, that of the Torah she baal peh, there is no discretion (and in
fact, if a mistake is make, a korban may be required).

>This might suggest that the halachah that allows the killing of maggots
>on the Sabbath should now be changed to reflect the current state of
>objective knowledge.  But that is no longer possible, because the Oral
>Law of which the Sanhedrin was the absolute arbiter no longer exists.

As it is not a question of Oral Torah, the only case where this might be
relevant is if the case in question falls into the category where the
Sanhedrin is using one of the traditional methods by which the Torah may
be interepreted and coming out with a derived result.

>Instead, we have only the version redacted by R. Judah Hanasi (the
>Mishnah) supplemented by the two subsequent versions of the Gemara --
>primarily the Bavli redacted by Ravina and R. Ashi.  Once the Mishnah
>was redacted, later authorities (amoraim) could no longer disagree with
>Mishnaic authorities (tannaim).  This was a revolution in Jewish Law and
>directly contradicts the Rambam*s codification cited above.  See the
>Keseph Mishnah on this codification who is troubled by the contradiction
>between the codification and the authoritativeness of tannaitic opinions
>relative to amoraic opinions.

The Kesef Mishna does comment in this way on the Rambam - but obviously
only in the context in which the Rambam himself wrote.  The Kesef
Mishna's solution to the problem was that the generation accepted that
Amoraim could not challenge Tanaitic drashot and understandings, and
that post the gemorra the generations accepted that they could not
challenge the position of the gemorra.

>  Why was it revolutionary?  Because until
>then there had never been a public (i.e. authoritative) text of the Oral
>Law.  As long as it was not reduced to a cannonical version, the Oral
>Law remained (as it was supposed to) in a continuous state of flux, so
>that authorities of one generation would never be bound by earlier

As said above, the Rambam's codification specifically does not include
what he regards as Oral Law.  The Kesef Mishna does not give a reason
why the generations decided to accept upon themselves the additional
limitations that they did.  However I can think of two possible reasons
(and there may be more) a) with the destruction of a final arbitrating
Sanhedrin, there was no mechanism to eliminate machlokus as previously
(see the Rambam's comment in Hilchos Mamrim 1:4), so that other
mechanisms to diminish machlokus were felt to be necessary to prevent
the situation getting completely out of hand and/or b) the generations
no longer felt they had such a good grasp of the methods by which the
the torah may be darshaned, and therefore they were no longer willing to
put their drashot up against those of the previous generations.

>  The redaction of the Mishnah violated the cardinal
>prohibition against committing the Oral Law to a written
>(i.e. authoritative) test from which the law could be derived (*d*varim
>she*baal peh i ata rashai l*kotvan*) a prohibition based on the verse
>*al pi ha-torah asher yorucha.* The revolutionary nature of redaction of
>the Mishnah was certainly recognized at the time and it was only
>justified on the basis of *horaat shaah* an emergency decree based on
>the verse *eit la-asot la-hashem heifeiru toratecha* "the time has come
>to do for G d to annul your Torah", i.e.  to annul the very essence (the
>indeterminate character) of the Oral Law.

The fact that the Oral Torah was not supposed to be written down and
then it was felt to be necessary is certainly true, but not relevant to
the discussion.

>  The codification of the
>Rambam Hilchot Melachim is thus an ideal or Platonic codification.  The
>current reality is that we are subordinated to the opinions redacted in
>the Talmud even if they are based on false premises, because after
>redaction of the Talmud the Talmudic authorities became *the judge that
>shall be in those days* for all succeeding generations.  Although there
>is probably nothing wrong with one chosing as a chumra not to kill a
>maggot on the Sabbath just as one may as a chumra choose not to eat a
>dish into which a non-kosher substance was accidentally mixed (the
>non-kosher substance is halachically nullified by the majority that is
>kosher.but objectively it is still there), there is all the difference
>in the world between chumra and halachah.  And the halachah remains that
>killing maggots on the Sabbath is permitted based on the principle of
>*lo tasur min ha-davar asher yagidu l*cha.*

Now again i agree that killing kinim on shabbas is permissable under the
halacha - but another aspect that is assumed here seems to me to be
problematic, and that is - that the Rabbis were necessarily looking for
and adopting a scientific definition of pru urvu - just that their
science was wrong.  It may be, to the contrary, that what they were
looking for was a halachic definition that set a limit at a particular
place, and it so happened that the science of the time set the limit in
the right place in defining pru urvu, and therefore that was the
description adopted.

The relevant gemorra [in Shabbas 107b] is set in the context of a
discussion about trapping and wounding certain shratzim on shabbas.  The
Mishna on 107a states that in regard to the 8 shratzim mentioned in the
Torah [according to the Koren translation - the rat, mouse, tortoise,
gecko, monitor, lizard, skink amd chameleon] both one who traps them
[because people trap these for their hides] and one wounds them [because
wounding is considered slaughtering if the blood flow is altered to
gather beneath the skin] is liable on shabbas, but for other shratzim
one is exempt if one wounds them [without external blood, since they do
not have a thick skin] and one is only liable for trapping if one in
fact traps them for use.  On 107b the halacha is brought that if however
these shratzim are killed (and not just wounded) one is chayav - with
the exception of kinim according to the rabanan although not according
to Rabbi Eliezer. (People here seem to be translating kinim as maggots -
I always thought kinim were lice, but I am certainly not an expert on
different kinds of shratzim).  It appears accepted both by the Rabbanan
and Rabbi Eliezer that the prohibition is to only apply to things that
are considered 'like' the rams which were slaughtered in building the
mishkan [Rashi says - for their skins], and therefore just as killing
those rams was a melacha, so killing of any similar animals is a melacha
on shabbas.  It is just that Rabbi Eliezer holds that the 'likeness' is
having a 'neshama' - ie a question of life, and the Rabbanan say the
requirement is that they must, like the rams, engage in 'pru urvu'.

Now in both cases if we take the definitions as scientific ones, we run
into problems. After all, there are lots of tiny creatures not visible
to the human eye in our drinking water and elsewhere - and if the
problem is a living thing, we are being constantly over the issur.  This
exact same question comes up in relation to kashrus, as the halacha is
that a bari [whole living creature] is considered chashuv and cannot be
nullified no matter how large the other items it is eaten with may be.
However it is accepted that when a bari is mentioned, it is not taken to
include single celled ameoba, but only creatures that are visible to the
naked human eye.  Similarly it is clear that Rabbi Eliezer's test would
not include non visible creatures, - even if they would be considered to
have a neshama, a deminimus line would have to be drawn - probably again
at the limitations of the naked human eye.  

However the Rabbanan felt that Rabbi Eliezer's test was too broad and
not what the Torah intended - a neshama was not enough to put something
into the same categorisation as a ram - so they formulated the test in
way that ignored the deminimus creatures (lice or maggots or whatever)
that just seem to appear from nowhere - and thus are much more deficult
to avoid killing on shabbas.  This has practical aspects too - remember
that if one kills an animal like a ram on shabbas - one is chayav a
korban (and if one thinks one might have, one may also be chayav a
korban for the safek).  If you don't exclude deminimus creatures - you
might well have people running off to the beis hamikdash every week
bringing korbanas (especially given they did not have our pesticide
sprays to eliminate such animals easily from the house).  This deminimus
limits are also in keeping with the general Torah approach - which,
although forbidding certain things (eg forbidden foods), usually set
(technically had the Rabbis set - see discussion in Yoma) a minimum
shiur for a deorasa breach.

A logical place to put such a deminimus limit was at the point that,
with the science available at the time, certain creatures were not able
to be detected as multiplying.  Yes that means that the science of the
time was wrong.  However it does not necessarily mean that the halacha
was 'made on false premises'.  The alternative is that the halachic line
was drawn in the correct place, just the description of that line that
was given is a description that no longer conveys to us without
explanation the necessary information - namely that one is only chayav
if one kills a creature that is sufficiently significant that it
reproduction is easily detectable without complicated scientific

>David Glasner




End of Volume 24 Issue 98