Monday, December 31, 2007

are Chazal legislators or scientists?

There is a long chain of comments (many written by me) over at Dixie Yid regarding women and their place in halacha and in the world which I recommend having a look at. One point raised deserves elaboration in its own right. Are Chazal legislators who formulate laws from scratch based on their interpretation, or are they scientists who discover truths that are immutable elements of reality? A commentator who is the author of a book writes, “G-d’s laws - which include the laws of the Sages whom He appointed to be his agents - cannot be changed to our likes and dislikes, any more than one can change the laws of physics or chemistry….Just as the scientist cannot change the laws of nature, he can only learn to understand and apply them, so the rabbi cannot change the laws of the Torah, he can only show us how to understand and apply them.” I find this claim striking. While I wouldn’t dismiss it as completely untenable, the is not at all something I would assert so confidently as being self-evident. In fact, the opposite position seems far more consistent with sources.

What immediately comes to mind is the famous question of why according to the Rambam who holds Rabbinic laws must be followed because of “lo tasur” is there a difference between a safeik d’oraysa and a safeik derabbanan. The answer which many suggest is that Torah prohibitions are inherently wrong. A piece of safeik neveilah is like a piece of safeik poison – why chance eating it? However, Rabbinic laws are not inherently wrong, they are not like laws of chemistry which will have an effect willy-nilly. The only problem with Rabbinically prohibited food is that eating it undermines the legislative authority of the Rabbis. The existence of doubt justifies acting without violating anyone’s authority.

Clearer proof to the distinction can be found in a recent daf-yomi. The Ran explains (Nedarim 8) that a shevuah cannot be taken on what the Torah has already commanded – ain shevuah chal al shevuah. However, one can take a shevuah on a law derived from one of the 13 middos (and certainly a Rabbinic law). In the former case the Torah law is inherently assur already; a shevuah adds nothing. In the latter case, since the law stems from Rabbinic interpretation, it is not inherently wrong – what makes it wrong is the violation is deemed a challenge to Chazal’s authority. Therefore, a shevuah which defines the act itself as inherently to be avoided can work (see Sha’arei Yosher 1:7).


  1. Your debate parallels the famous question of whether judges merely discover the law or help in its creation.

    The legal academy rejects the law is discovered view and for good reason.

  2. Bill Selliger3:54 PM

    Chanoch Albeck in Mavo Limishna couches your dilemma as follows: What came first, the psukim or the drashos? In other words, did chazal look into the Torah and extrapolate dinim ("discovery" - as Naphtuli said), or did they arrive at the dinim (out of necessity) and attach them to psukim?

    His position is that both methods existed - depending on the law in question.

  3. Tal Benschar12:57 PM

    Your question fails to differentiate between deoraysas and derabbanans. One could easily posit that in interpreting the Torah, Chazal are attempting to discover the eternal halakha which is inferred from the pesukim or from the masorah in general.

    Derabbanans are more legislative.

    Using your safeik example, a safeik deoraysa where the deoraysa is based on a derasha is still ossur.

  4. A shevuah is chal even on something learned from a derasha, but it is not chal on a true d'oraysa, indicating a difference. (See R' Shimon's example from chazti shiur).

  5. Tal Benschar7:56 PM

    That there is a chiluk does not mean that you have properly formulated the chiluk.

    While I have to see the Shaarei Yosher inside, I very much doubt that anything learned from a derasha is "not inherently wrong" and is merely a challenge to rabbinic authority. (That does perfectly describe derabbanans.)

    We give sekilah on deoraysas which derive from the middos she ha Torah nidreshes ba hem.

    We treat them as safeik deoraysa le chumra.

    I assume that we could imagine a situation where one is chayyav a chattas or an asham talui on issurim where there is a derivation from a middos she ha Torah nidreshes ba hem.

    Whether a shevuah is chal is a function of whether the person is mushba ve omed me Har Sinai. That seems to be a separate issue from whether something is "not inherently wrong."

    (Another chiluk is the din of zil kri bei rav, which applies to explicit dinim in the Torah she be Ksav, but not those derived from derashos. But that does not lessen the inherency of the issurim derived from derashos.)

  6. Tal Benschar9:31 PM

    I should add, BTW, that R. Elchanan Wasserman uses the precise chiluk you made to explain the difference between deoraysas (including, presumably, those derived from derashos) and derabbanans. Specifically, he holds that one does not need to do teshuvah for violating a derabbanan be shoggeg. In contrast to deorasyas which are inherently problematic, derabbanans are basically an issur mered -- rebellion against the authority of Chazal. If done knowingly, that may incur makkos mardus, but there is no such thing as a mered by accident, hence no need for teshuva.

  7. >>>While I have to see the Shaarei Yosher inside, I very much doubt that anything learned from a derasha is "not inherently wrong" and is merely a challenge to rabbinic authority.

    Your doubts don't change what the man said - look it up!
    Sure you get skila - for violating the authority of Chazal. Sfeika l'chumra according to the Rambam (as R' Shimon explains) is not because there is an inherent issur, i.e. safeik neveilah = neveilah itself, but rather because there is a new independent issur of violating a safeik. R' Shimon has many many ra'ayos. Really, take a look inside!

  8. Tal Benschar8:21 PM

    Bli neder, I will look it up.

    That said, going back to your original question:

    "Are Chazal legislators who formulate laws from scratch based on their interpretation, or are they scientists who discover truths that are immutable elements of reality?"

    You then assert that the second option "seems far more consistent with sources."

    WADR the application of this to dinim deoraysas derived from derashos is problematic and unproven. Do you really think that, for example, where Chazal darshen the semichas ha parshiyos to learn the 39 melachos of Shabbos from the Mishkan, they are "legislating?" The much more straightforward understanding is that they are interpreting what the Torah itself means when it prohibits "melachah"

    Look at, for example, the Rambam at the beginning of Hilchos Mamrim. Seem like straightforward interpretation.

    (For pure derabbanans, of course, that is like legislation, at least as the Rambam presents it.)

    Your approach creates more problems than it solves. For example, you assert "Sure you get skila - for violating the authority of Chazal."

    Since when is lo tassur a basis for sekillah? Why do you get sekillah only for some derashos but not others? Is it not far more simple to understand that when Chazal learn something from a derasha, it is an interpretation of the basic din found in the pesukim -- an issur sekilah becomes an issur sekilah, etc.?

    For that matter, why do you need to do teshuvah (or even, at times need a kapparah like a korban chattas) for violating an issur be shoggeg where the issur is derived from the middos she ha Torah nidreshes ba hem?

    For that matter, Par Helem Davar Shel Tsibbur, by definition, does not apply to laws expressly in the Torah -- zil kri bei rav. It only applies to reliance on a horaah of the Beis Din ha Gadol in TSBP. (Concededly not identical to middos she ha Torah nidreshes ba hem, but close.)

  9. WADR, before you comment further, please open the Sha'arei Yosher and see what it says. You can bang your head against a wall all day and claim it is not a wall, but your head is still not going to make it through.
    All your questions from onshim can easily be answered by simply saying the onesh is part of the legislation enacted.
    Par He'elem is a function of the nature of the laws - is it categorically a derasha, a derabbanan, or an open pasuk. What that has to do with this discussion, I have no idea.
    Obviously, you need to examine each din carefully and see whether the issur is inherently wrong or not depedning on how it functions.
    Please look up the piece.

  10. I don't know, I always believed both being legislator and as I call it engineer, as one and the same. They might make halachos from "scratch " but all in their interpretation of the halachic Torah reality. Heretics thinkrabbis can make things up, but really they are confined to the Torah and it's reality/ world.