Much of my shiurim over the last year were devoted to exploring the complexity of the Halachic system. As one of the talmidim at Yeshiva noted, my conclusion as to the role of every factor I addressed was “it’s complicated.” That’s probably fair – as the Ramban notes in his introduction to the Milchamot, law is not like math, and we deal with probabilities and plausibility rather than absolute proofs. So, for my last shiur of this year in my series, I dealt with the inherent ambiguity of texts. My goal was to show that text and arguments never absolutely prove one side of an argument or the other. Thus, we will never be able to remove the intuition of poskim from the Halachic process – nor should we want to. The shiur and sources are available: here.
I began by noting the requirement the Gemara imposes on judges – that they be able to justify why an impure creature is in fact pure. While many Rishonim fought the implication of the Gemara, the simple understanding is that someone with a good legal mind should be able to justify something which is false – as there is always an argument that supports even incorrect conclusions. This should reinforce the notion that arguments are rarely dispositive. I added a quip that was apparently said by Nechama Leibowitz, though I heard it originally from Professor Moshe Bernstein: If you wanted to, you could reverse anything in the Torah by reading it as sarcastic, such as “Lo Tirzach?!” The point being that text is also subject to the understanding of the reader. Now this does not mean that there is not truth or that we shouldn’t strive for the most likely understanding of the law – it just means that we have to realize that we will need to rely on a level of intuition to figure out what that is.
I brought a series of examples to illustrate this. For example, the Taz claims that every time the Gemara compares something using a kaf, we should understand it as equating that two – kaf hashivyon. The Prisha argues that we should understand them as comparing the two – kaf hadimayon. The comparison is used for emphasis, but necessarily legal direction. I would argue that it depends on the context. This leads to many disputes. For example, R. Shlomo Kluger suggests that as the Gemara says that one who adopts a child it is as if he gave birth to him, one can fulfill peru urevu through adoption. He hangs this explicitly on the dispute between the Taz and Prisha.
A fascinating example is the question of whether embarrassing someone is a cardinal sin. The Gemara writes, in the context of many aggadic statements about the severity of embarrassing people, says that it would be better to throw yourself into a fiery furnace than embarrass someone, citing Tamar as an example, who was willing to die rather than expose Yehuda. There are many things pushing against this text being literal – it is surrounded by aggadic sounding statements, it sounds hyperbolic, and most importantly, the Gemara has a list of the cardinal sins (including disputes about several cases), and this is not included. Yet, many Rishonim take it literally. Tosafot argues that it is literal, and the list of cardinal sins only included sins where the cardinal nature is explicit in the Torah. This is difficult, as the fact that murder is a cardinal sin is in fact derived from logic. R. Yonah argues that embarrassing others is a subset of murder, so it was included. This assumes that secondary sins are also cardinal, and that this is really a full-fledged derivative of murder. Meiri, on the other hand, argues that this was just rhetoric. Rivash, in a similar context, goes as far as to say that no one could ever have though it was a cardinal sin, probably knowing full well that people ruled otherwise. In modern times, R. Shlomo Zalman Aurbach, though he sensed that it was unlikely that this was literal, felt that precedent forced him to rule that it was yehareg v’al yaavor. He even wondered whether the laws of rodef would apply and whether one could violate Shabbat to save someone from embarrassment! [Note that one way to determine if a text is literal is to look for how it was understood by others.] R. Yehuda Herzl Henkin argues that if one expands his search to other Rishonim, it turns out that most Rishonim did not understand it literally, thus using the argument from precedent against R. Shlomo Zalman. What we see in this case is the range of positions that are possible- from accepting a text as literal to denying that anyone ever could have. [There are in between positions I dealt with in shiur.]
Another fun one is the case of Kimchit, who is praised for never letting the walls of her house see her hair, a custom that she claimed led to her having seven sons who were Kohanim Gedolim. While at first glance this seems to endorse his practice, and some have taken it this way, one must remember that for this to have happened, she probably either had sons who died young or became impure from keri on Yom Kippur – which would imply that her actions were problematic. The Gemara discusses her sons’ venturing into the market (probably on Yom Kippur) and being spit on by Arab merchants, thereby becoming tameh. It is ironic for the woman who prided herself on being modest inside her house, should have sons who should have been inside God’s house, but instead went outside (i.e. breaching modesty) and becoming impure in a way that relates to sexual impropriety. If this Gemara is ironic, it obviously had very different legal implications.
Another Gemara I addressed was the story of Bruriah who when asked by R. Yosi HaGlili “which way do we go to go to Lud?,” she responded “idiot Galilean – the rabbis says don’t speak to much to women – you should have said where to Lud!” Magen Avot takes this literally, assuming that Chazal thought a single extra word should not be said to the opposite gender. However, many have noted that there are other ways to understand this. R. Aryeh Klapper notes that she may have been responding to the pronoun “we.” For someone to suggest to a married woman that she should accompany him on a journey is a violation of modesty, incurring the sarcastic remark. R. Beni Lau suggests that she was annoyed that R. Yosi did not treat her as a sage, but rather as a “mere woman” – causing her to say, if so then don’t talk to me.
I went to several other examples which are available in the shiur. The point, however, should be clear – all texts and arguments require assessment by people. Thus, no matter how hard we try, Torah law will always require human input, and therefore human integrity.