Approaches to Midrash Halakhah

This post is in response to a question that Ezra Butler posted to his blog about "three schools of thought, each believing diametrically opposite beliefs about the root of rabbinic law. is it divine like the gaonim, man-learned like maimonidies, or man-chosen like nachmanidies."

I. Introduction

In a 1994 lecture a Harvard Law School, Prof. Moshe Halbertal of Hebrew University presented three very different views of the development of halakhah. On the one hand, there is the Geonic view that the entire Torah was given to Moshe and transmitted through the generations. Halakhic hermeneutics and their accompanying disagreements were only attempts to retrieve elements of the original Oral Torah that were lost due to insufficient transmission. The Maimonidean view is that hermeneutics and disagreements were not elements of retrieval. Rather, they were creations of new laws whose clarification became necessary due to various historical reasons and whose methodologies were limited and somewhate defined. These new halakhot accumulated over time and form a significant part of the Oral Torah we know. According to the school of Nahmanides, every possible legal view was given to Moshe at (or from) Sinai and the Torah leaves it up to the sages of each generation to decide which view constitutes the current norm. Thus, there are three very different views - each with support from strong authorities - about the significance of disputes, hermeneutics and the origin of large portions of the Oral Torah. How, asks Ezra Butler, should this be taught to students?

Before we reach Mr. Butler's question, we first have to show that Prof. Halbertal is not entirely correct. As is common in academic literature, Halbertal has overstated the differences and minimized the similarities of these views to create a much starker disagreement than really exists.

II. Geonim

I have no disagreements with how Prof. Halbertal described the view of the Geonim.

III. Maimonides

Maimonides' view of the development of the Oral Torah is, unsurprisingly, complex. As Prof. Halbertal describes, R. Yair Hayim Bakhrakh (Havat Yair, no. 192) devastatingly critiques many aspects of Maimonides' view. However, Prof. Halbertal takes R. Bakhrakh's critique as the final word on the subject. As R. Zvi Hirsch Chajes (Torat Nevi'im) has shown, Maimonides can be defended from most of R. Bakhrakh's attacks. Indeed, the vast literature that seems to contradict Maimonides' thesis should serve an immediate "red flag." Is it really possible that the great Maimonides missed all those very explicit passages? On one issue in particular, R. Chajes shows that R. Bakhrakh misunderstood Maimonides and, therefore, critiqued a view that Maimonides never held. Maimonides wrote that there was never a disagreement on a matter over which there was a tradition but it was forgotten. R. Bakhrakh takes this to mean that, according to Maimonides, the sages never forgot a tradition, quite an amazing and indefensible claim. R. Chajes explains that Maimonides was referring to a dispute in which one party forgot the tradition but the other remembered. This is because once the other party stated that he had a tradition on the matter the first party would accept that tradition and abandon his hermeneutical attempt to recreate the tradition (this reads well in the context of Maimonides' statement).

What emerges from this important correction is that, according to Maimonides, legal hermeneutics serves two purposes: to retrieve lost traditions and to accumulate new laws. Thus, while Prof. Halbertal posits that the Geonim and Maimonides had diametrically opposed views on the development of halakhah, our udnerstanding is that Maimonides held a modified Geonic view. His modification is certainly significan, but it is not radically different from the Geonic view.

IV. Nahmanides' School

Prof. Halbertal was being quite original in his deducing from various works a third approach. However, in doing so, he neglected the original context of these statements. All of those quoted are writing of cases in which there is debate. Revelation is not, according to these scholars, "open-ended." When there is a debate, then and only then we say that the different views originated from Sinai. When a law is forgotten then scholars must try to recreate the original law - to retrieve it - using traditional methodologies. The innovation of this school is that even if a scholar fails to retrieve the law as it was practiced earlier, before it was forgotten, he has still retrieved a view that was sanctioned at Sinai.

In reality, Nahmanides' school (or, the scholars cited by Prof. Halbertal) agrees with the retrieval model of hermeneutics but gives sanctity to minority views and, significantly, provides a mechanism to account for error and even change.

V. Summary

To summarize the views, all agree with the Geonim that hermeneutics is a process for retrieving lost portions of the ancient Oral Torah. Maimonides adds a new element for creating new laws and interpretations when necessary, which is a substantial divergence from the Geonic approach. Nahmanides' school accounts for issues such as disagreements and errors with which the Geonim might have agreed but never fully addressed. There are differences between the views but they are not as wide or as fundamental as Prof. Halbertal made them seem.

How should we teach these views to students? My general approach is to choose one view and stick with it consistently, all the time explaining that there are other views that will be covered at a later date. After time, perhaps in 11th or 12th grade, expose students to these other views