Not in Heaven: The Nature and Function of Halakhah
Ktav Pub Inc (March 1983)
ISBN-13: 978-0881250510
As I make my way through the stack of books that will go into the writing of Havruta with a One-Eyed Cat, probably the one that I return to most often is Eliezer Berkovits’ classic Not in Heaven. Here, R’ Berkovits sets out in clear, lucid arguments his philosophy of Jewish Law (Halakhah): “[Specific rulings] are somehow based on textual interpretation. But quite clearly, it is the halakhic conscience that creates the interpretation” (Berkovits, p 22).
I will have more to say about R’ Berkovits’ book in later posts, but for now I’d like to focus on his treatment of the famous sugya in Bava Metzia 59b: the Tanur of Achnai (analyzed in depth here, and summarized here). After briefly setting out the basic development of the sugya R’ Berkovits writes:
Of no less importance is the second aspect of the story. Whose opinion was the correct one: that of Rabbi Eliezer or that of the majority of the sages? In an absolute sense, Rabbi Eliezer was, of course, right. the very heavens agreed with him. However, the affairs of men cannot be guided by absolute objectivity, but only by human objectivity. (p. 48)
R’ Berkovits argues that while truth is important, it is not of supreme importance. In fact, the need for human coexistence—with each other and with the rest of the created world—is of greater importance than objective truth.
What God desires of the Jewish people is that it live by His Word in accordance with its own understanding. In theoretical discussions man strives to delve into the ultimate depth of the truth; but when he decides that he has reached it, it is still only his own human insight that affirms that indeed he has found it. When it is necessary to make decisions for human conduct and behavior, one can do so only on the basis of pragmatic principles; for example, “follow the view of the majority.” The result is not objective truth but pragmatic validity. For this reason, the majority of the rabbis were right and the great Rabbi Eliezer, supported by a heavenly voice of absolute truth, was wrong. (loc. cit.)
In order to see this discussion in context, it’s worth going back to the background of the dispute. What was the discussion actually about? The purity or impurity of a makeshift camping stove! By the time of the dispute between R’ Eliezer and the rabbis, the issue had already become purely theoretical, with no practical import. And yet, there is a reason why our story revolves around an issue of purity and impurity. These laws had always marked the dividing line between two camps of Jewish authorities: those who ruled by appeal to received tradition (mesorah), and those who ruled by human reasoning (s’varah) applied to present circumstances. It all comes down to the relative weight of the human vs. the divine in Halakhah.
It is tempting to base the need for pragmatic vs. absolute truth on the limitations of the human mind: as embodied beings, our minds are simply not capable of grasping absolute, divine truth. But if that were the case, it would seem to argue for the position of R’ Eliezer and against that of the rabbis: if our minds are incapable of divine reasoning, then let us fall back on the divinely-sanctioned mesorah!
And yet, the sages argue again and again against this conclusion:
According to one opinion in the Jerusalemite Talmud, the human share in the interpretation of the Torah is unavoidable; it is the vital requirement for the realization of the Torah in the life of the people through its changing history.
Rabbi Yanai said: “Had the Torah been given as one cut [ie., as one final, unchangeable decision in all matters without any possibility for divergent interpretation; see commenatries on the text], we could not stand on our feet. ‘And God spoke to Moses’ [ie., He gave him the Torah]. At that time, Moses said to Him: ‘Make known to me how the Halakha is to be decided.’ He answered him: ‘One has to accept the opinon of the majority. If the majority acquits, acquit him; if they found him guilty, punish. It is necessary that the Torah be capable of forty-nine ways of interpretation of affirming an opinion and forty-nine ways of opposing it.'” (Berkovits, p. 52, and note: T.Y. Sanhedrin 4:2 and cf. P’nei Moshe on the text.)
Human reasoning is not “instead of” the divinely-sanctioned tradition; it is part of it! And this is not because of the limitations of human understanding. Hinted at here is a far deeper reason: the notion that we apply our reasoning to the received tradition because of something built into the structure of creation itself. It isn’t the capacity of our minds that’s lacking. Rather, the reality is undetermined until the time comes for it to be determined. We can’t ask God to tell us the future, not because we wouldn’t understand, but because the future has not yet been decided. We are part of what makes things happen in one way rather than another.
Why, indeed, was it necessary to formulate the text of the Torah in such a manner that it be open to so many possibilities of interpretation? It would seem to us that in saying that Moses was asking God to tell him the final Halakhah, Rabbi Yannai intends to tell us that it is not for man to ask of God that He reveal to him the ultimate, objective truth; it is not for us to ask for the “voice from heaven” to pronounce the halakhic decision as a dictate from on high for all generations. That is impossible, for in such a case one could not live with such a Torah. One of the commentators of the Jerusalamite Talmud explains: “The world could have no existence; it must be possible to interpret the Torah this way and that way… ‘and these as well as those are the word of the living God.'” It is a pity that our commentator did not fully say why this was necessary and why the world could have no stand otherwise. (p. 52)
One possible reason why the world could not stand otherwise is the need for chaos at the heart of physical existence—uncertainty is a prerequisite for human free will. Perhaps a world in which all things can be foreseen is a world in which Torah would be meaningless. For human conduct to have meaning, the world must be such that the right action is not foreordained, nor even completely determined by law. The uncertainty and malleability of the Torah mirrors that of the world itself. Or, our sages might say, it’s the other way around—the world was built on randomness and chaos purely for the sake of the Torah. Thus, God looked into the Torah and created the Universe.
Hence, the reaction of God when confronted with the sages’ refusal to accept the judgement of the Heavenly Voice in the case of the Tanur shel Achnai: “My children have defeated me.” It is the victory of the created world itself—the victory of a chaotic creation that is actually capable of surprising and delighting its Creator.
