Rabbi
Shlomo Riskin’s new book, The Living Tree: Studies in Modern Orthodoxy, has just
appeared. The Seforim Blog is happy to present this selection from it.

Halakhic Pluralism in the Eyes of Rishonim and
Aharonim

In many of the off-hand remarks of the early
commentators, their advocacy of the principle of halakhic pluralism is plain to
see, regardless of whether these great authorities stemmed from Ashkenaz,
Sepharad, or Provence. They repeatedly express the pluralistic principle of
“these and those are the words of the Living God.”

Rashi, in his commentary
to Ketubot 57a, writes:

W hen two [sages] argue
over the statement of one [who was their master], and one sage says that this
is what the master said and the other says that this is what the master said,
one of them is lying. But when two Amora’im argue regarding a civil or ritual
halakhic issue, and each one maintains the logic of his position, there is no
falsehood. Each one is expressing his logic, the one master giving a reason for
permitting and the other master giving a reason for prohibiting, one master
compares issue to issue in such a fashion, and the other master compares it in
another fashion. It is necessary to say, “these and those are the words of the
Living God”; sometimes this logic pertains and sometimes that logic pertains,
because the logic changes even on the basis of a small change in the issues at
hand.

The Ritba (Rabbi Yom Tov ben Avraham Asevilli,
1250–1330) on Eruvin 13b comments as follows:

“These and those are the
words of the Living God.” The rabbis of France asked, How is it possible for
both views to be those of the Living God when one prohibits and the other
permits? And they answered: W hen Moses went on high to receive the Torah he was
shown forty-nineways to permit and forty-nine ways to prohibit every object. He
asked the Almighty concerning this, and He said, “Let these [matters about
which there are so many possibilities] be handed over to the sages of Israel in
every generation, and let the resolution be in accordance with their will.”

 Rabbi
Menaĥem Meiri (1248–1316), in his work Beit HaBehira, commented on Yevamot
14a:

That which the Torah
commanded lo titgodedu (“Do not slice yourselves up” – Deut.14:1), even
though its principal meaning is not to wound oneself as an expression of
mourning for one who has died, there is a nuance [within the word titgodedu
which may be interpreted to mean] not to turn the commandments into separate
divisions [agudot], and this is to prohibit several individuals from
performing ritual in one way while others per- form the ritual in a different
way, until it appears as though we are being led by two Torahs. But this
prohibition applies only when a city has only one court, and when even this
court is itself divided, with one component group deciding in accordance with
one view and another component group in accordance with another view. But
whenever there are two judicial courts, albeit in one city, and one court is
accustomed to deciding in accordance with this view and the other court is
accustomed to deciding in accordance with that view, this does not represent
separate divisions because it is impossible for everyone to always agree on one
opinion. This is certainly true regarding actions based upon custom, where
there is no objection if these act in such a way and those in another way.[1]

Even during the period of the later
commentators, the idea of halakhic pluralism finds expression. Admittedly,
works such as the Kitzur Shulhan Arukh of Rabbi Shlomo Ganzfried, which
records only one authoritative opinion – unlike the original Shulhan Arukh,
which includes the opposing views of Rabbi Karo and the Rema – seem to imply a
more monistic halakhic approach. A ringing defense of pluralism is to be found
in the words of Rabbi Chaim ben Rabbi Bezalel, brother of the Maharal, who
studied together with Rabbi Moshe Isserles (the Rema) in the mid- sixteenth
century in the yeshiva of Rabbi Shalom Shachna. He wrote Viku’ah Mayim Hayim
(usually included at the end of the Rema’s Torat Hatat), in which he
vigorously argues against any written halakhic codification reflecting only one
halakhic opinion:

Only after [the decisor]
has studied all of the legal disputes which have arisen regarding a specific
law can his word run quickly into the sea of wisdom…Moreover, the mind of an
individual is not always consistent and perhaps his mind is not disposed to
give the same halakhic ruling which he gave yesterday; there is not in this any
change or deficiency [which would lead us] to say that through him the Torah is
becoming like two Torahs, God forbid. The opposite is the case; this [manner of
halakhic investigation, exploring multiple opinions] is the path of Torah, and
“these and those are the words of the Living God.” (Elon, Mishpat HaIvri,
37)

A fascinating contrast is to be found in the
writings of two cotemporary religious leaders, Rabbi Moshe Feinstein and Rabbi
Yitzhak Hutner. The former, world-renowned halakhic decisor of our generation,
utilizes the expression “these and those are the words of the Living God,” but
nevertheless posits that one argument may ultimately be more correct than the
others:

And this is the matter
concerning all of the disputes of our earlier and later sages, when one forbade
and the other permitted: whenever the [law] was not resolved in accordance with
one [of them], any [rabbi] could rule in his locality in accordance with his
logic, even though the true law is only in accordance with one of them…Both are
the words of the Living God, but the real truth, revealed before heaven, is
only like one of them.

Nevertheless, Rabbi Moshe Feinstein insists that
with regard to reciting the blessings on learning Torah and fulfilling the
commandment to study Torah, no differentiation should be made between texts
containing majority opinions and texts containing minority opinions. All Torah
texts are worthy since “these and those are the words of the Living God” (Iggrot
Moshe, Orah Haim 4:9, 24).

Rabbi Yitzhak Hutner, on the other hand, accepts
the talmudic view that disputes arose as a result of insufficient study or
forgetfulness, a view which we initially equated with the monistic approach to
halakha. Nevertheless, he resoundingly affirms the positive role of disputes in
enlarging the scope of Torah and initiating novel ideas therein. He even reads
into this view of the origin of halakha a bold concept of halakhic pluralism:

Sometimes, the
nullification of Torah is its very confirmation, as it is written, “the tablets
which you have broken.” [God said to Moses], “May your strength increase
because you have bro- ken them; the act of breaking the tablets is an act of
confirming the Torah through its nullification.” Our sages have said, “Were the
tablets not broken, Torah would not have been forgotten in Israel” (Eruvin
54a); we find therefore that the breaking of the tablets contains an aspect of
forgetting of the Torah. We learn from this an awesome and novel idea: it is
possible for Torah to be increased through its having been forgotten, and it is
possible to be blessed with increased strength because of the Torah having been
forgotten!

Go out and see what our
sages have taught: three hundred laws were forgotten during the mourning period
for Moses, and Otniel ben Kenaz restored them with his logic and casuistry (Temura
16a). And even more than that: every dispute in halakha stems from the fact
that Torah was forgotten, and nevertheless our sages declared, “Even though
these purify and those defile, these invalidate and those permit, these exempt
and those obligate, these and those are the words of the Living God.” Hence,
all different opinions and differing views contribute to the growth of Torah
and its majesty, which…is emphasized to a greater extent by the Oral Law which
is revealed in disputes rather than by agreement, because “these and those are
the words of the Living God” includes the principle that even the rejected view
in halakha remains Torah knowledge as long as it was expressed as part of the
give-and-take of the Oral Law…and if there will be a vote afterwards and the
decision is in accordance with the rejected view, from then on halakha will be
different in truth.

The “battles” within
Torah are not simply one of many possible ways of (acquiring) Torah, but rather
the positive creation of new Torah values which cannot be found in the words of
Torah… And the two sides which clash in halakha become partners in the creation
of a new Torah value whose name is “the battle of Torah.” (Pahad Yitzhak,
Hanukka pp. 36–37)

Despite all this, pluralism is obviously not
open-ended. Starting with the biblical story of the Tree of the Knowledge of
Good and Evil which opens the Book of Genesis and serves as an introduction to
the entire Torah, it is clear that God demands that the definition of what is
good and what is evil must emanate from an objective source beyond the
subjective individual. Indeed, even though the fruit was “good to eat, a
temptation to the eyes, and a desirable way to gain wisdom,” the Almighty
nevertheless decided that it was evil to partake of it. And from the talmudic
period until the Emancipation, the partners to the “these and those are the
words of the Living God” disputes each accepted upon themselves an external and
objective halakha. Submission to a higher autonomous system was the axiom of
halakhic dispute. Hence, a non- Orthodox system cannot claim halakhic
legitimacy under the rubric of “these and those are the words of the Living
God.” While we may certainly learn from serious Jews of any or no religious
persuasion, both tradition and logic dictate that halakhic legitimacy can only
be accorded to those who accept upon themselves the axioms upon which the
halakhic system is based.

Although a non-halakhic theological system
cannot claim for itself a voting voice in a forum of halakhic discourse, I
believe it is crucial that the tent of Orthodoxy be as broad, open, and
inviting as possible. Even a halakhic position which the Orthodox majority
rejects, but which, nevertheless, has a legitimate halakhic basis to rely upon,
should be given due consideration.

Within the world of halakhic Judaism, the most
striking affirma-tion of the benefits of a pluralistic approach is to be found
in the words of Rabbi Avraham Yitzhak HaKohen Kook, in Olat Re’iya,
volume 1, p. 336:

The multiplicity of
views which arise as a result of the differences of personalities and
educational backgrounds is specifically the fact which most enriches and
broadens wisdom. Ultimately, all issues will be properly understood, and it
will be recognized that it would have been impossible for the Building of Peace
[the Third Temple] to have been erected had it not been for all those
influences which appeared to have been in conflict.

According to Rabbi Kook, it is the sum total of
many different ideas and ideologies which will ultimately lead to a shared
vision that expresses true peace; the authentic symphony is the product of many
different musical instruments melding together in majestic harmony.