Understanding Orthodox Judaism

Introduction

As mentioned previously (and obvious to many readers), Orthodox Judaism is considered to be religious, traditional, and/or authentic, but there are several gradations and sub-categories within Orthodoxy. There are countless customs, world views, and interpretations such that adequately defining what Orthodox Jews do or believe is nearly impossible.

Of course, this never stopped people from trying.

So in today’s installment of the “Personal Hashkafa” series, I’d like to present my take on the worlds of Orthodox Judaism, with a theory I believe accounts for most if not all phenomenon found in Orthodoxy. Let me just restate that this is my thinking and how it plays into my overall hashkafa. This is not an academic paper – though it could be a fun one if/when I’d ever have the opportunity.


The Essential Question
I have found in my experiences that defining principle of all Orthodox Judaisms1 is a commitment to the laws and beliefs written in the Torah. While the sub-groups may bicker as to what that means and/or who is more correct, each recognizes the religious obligations to follow whatever they consider to be Torah because they ultimately represent the divine will. Furthermore, all Orthodox Jews – and even most non-Orthodox – recognize the significance of the torah shebichtav – the Bible, and the torah she’be’al peh – Rabbinic sources minimally spanning from the time of the Mishna through the Babylonian Talmud.

Despite this underlying assumption Orthodox Judaisms frequently finds itself at odds with the Talmud. Space does not permit me to go into a detailed analysis of any particular issue,2 but conceptually, most Orthodox Rabbis and laity agree with this reality, frequently saying “we don’t pasken (rule) from the gemara.” This does not only mean that what the Talmud prohibits Orthodox Judaisms permit, but Orthodox Judaisms also prohibit what the Talmud explicitly permits.3 These incongruities also extend to the realm of theology where uncomfortable or inconvenient statements are ignored, suppressed, or “reinterpreted.”

In fact, most of the deviations from the Talmud are based on some reinterpretation of either the immediate issue or of the halakhic process in general. One could even argue that most if not all of the conflicts within Orthodox Judaisms are based in differing perspectives of interpretation. There are disputes over which interpretations are legitimate, which opinions are authoritative, the rules for making such determinations, and who has the authority to make all of the above decisions. The positions one takes on these issues ultimately define an Orthodox Jew’s hashkafa (outlook) in halakha (law) or mahshava (thought), and when it is passed down from generations, it is called “Tradition.”

This relativism, however, presents what I consider to be the critical dilemma for Orthodox Judaisms. By allowing for varying interpretations, even those which may contradict Talmudic law, Orthodox Judaisms tacitly acknowledge that their foundational principle is ultimately subjective. However, when confronted with conflicting opinions – frequently from outsiders, they will automatically revert to the fundamentalist rhetoric. But on the other hand, if Torah is somehow objective, such that there are definitive measures for defining what is and is not legitimate, then not only would these rules must be defined, but they must be followed by all Jews – including highly respected rabbis or sages.

Meaning, if there is an objective standard to Torah and its interpretations, then all Jews must be held accountable to this universal criteria, including Rishonim (Medieval scholars) and Achronim (Modern / contemporary scholars) – but few Orthodox Judaisms are willing to critically evaluate their canonical sages. But if Torah is subjective, then why would their deviations be acceptable, but others – such as those of the Conservative movement or competing Orthodoxies – be rejected? What then is the true determining factor for Orthodox Jews? What is it that makes the Orthodox, Orthodox?

Texts, Tradition, and the Sacred Society

The key to understanding Orthodox Judaisms, I believe, is to correctly identify the relationship between texts and tradition. I do not mean that the two are exclusive of each other, as the understanding of any text is subject to some degree of interpretation. Rather, in the Orthodox system, which of the two takes precedence over the other?

I suggest that while texts are important to Orthodox Jews, the superior authority of most (i.e. not all) Orthodox Judaisms is not any text, but rather on one’s personal or communal tradition. This is not an entirely new suggestion; scholars of Medieval Judaism identified the trend of Rabbis who reinterpret halakha to coincide with popular practice.4 This does not mean that traditional texts were unimportant, but that when there would be a conflict between texts and tradition, texts – or at least their meaning – are more likely to change to fit the practice or accepted ideals than the other way around. This of course creates a religious problem in that practice determines the religion as opposed to the religion mandating practice.

The most effective and innovative solution to this difficulty was to claim that tradition itself was sacred. Just as the Rabbinic tradition was the sacred and authentic interpretation of the Torah, so are the current traditions. This idea was formulated by several Medieval sages who asserted minhag yisrael torah hi (Ramban Pesachim 7b, Mahzor Vitry 503, many other places) or minhag avoteinu torah hi (Rosh R.H. 4:14, Tos. Menahot 20b) – the custom of Israel or our fathers is itself Torah. By equating Torah with tradition, these sages effectively reify their culture, making Judaism an intrinsically sacred society.5

The Sacred Society in Practice

Today’s Orthodox Judaisms perpetuate this idea to varying degrees. Some schools of thought do so explicitly by automatically disregarding and deligitimizing any idea which is in opposition or simply foreign to their own culture or to their appointed leaders. If the idea is not part of the communal cannon, it is outside of Judaism. One who challenges the status quo of the community is as much of a heretic as one who challenges the authenticity of the Torah itself, for in their minds, they are one and the same.

For example, Orthodoxy has long struggled in defining the halakhic role of women in Judaism, and frequently resorts to social answers to maintain the social status quo. Ruling against to the Talmud (Hullin 2b, M. Zevachim 12:4), the Shach prohibits women from acting as shohatot (slaughterers) simply because he hadn’t seen it done before (Y.D. 1:1, see Maharik 172). Women’s prayer groups are not prohibited by the Talmud, but they represent a change in the Orthodox world. Rabbi Yuval Cherlow a head of a hesder yeshiva said in his opposition to ordaining women rabbis:

the bottom line is that the Halacha will be formulated by the people who keep Halacha and this is the main power of the Orthodox – keeping strict, constant ritual. Halacha is not ideology, principles or even rabbis, but the public.

Beyond this specific instance, the assumption of Orthodoxy as a sacred society is implicit in the general halakhic and hashkafic systems. If one were to pick up any popular book on Jewish Law or Jewish thought – Hebrew or English – and look at the footnotes, or if one listens carefully to a Rabbi’s sermon or lecture, one will typically find an eclectic citation of sources. One law may be based on the Shluhan Aruch, another on Ramo, and a third on Mishnah Berurah. One theological idea may be from Rambam, another from R. Yehuda Halevi, and a third from Ramban. Depedning on the proficiency of the author or rabbi, there can be any number of sources cited for any number of different situations.

If these selected sources are not arbitrary, then there ought to be a reason – or preferable a system – for why different sources are cited in different cases. Meaning, if R. Moshe Feinstein is enough of a legitmate halakhic authority for one law, why is his opinion disregarded for another? When I have asked other rabbis this question, I have rarely received a rational response.6 The most common answer I hear is, “because that’s what we do” or “because that’s what other people said.” In a textual tradition, these answeres would be sidestepping the question. Instead of giving a legal answer demonstrating why one interpretation is rationally superior to the other, most Rabbis will give cultural or social arguments.

It should be noted that left-wing elements of Orthodoxy are equally susceptible to selectively citing sources to further an agenda. In the case of women reading the megillah, they will cite the Talmud’s statement that women are equally obligated as men (B. Megillah 4a), and follow this source over the objections of the Tosafot. However, this is not because they believe the Talmud is the superior authority. According to the Talmud, one may only make the blessing asher kiddishanu bemitzvotav when there is at least a rabbinic obligation (B. Shabbat 23a). However, most women say this blessing when performing time bound commandments for which they have no obligation (M. Kiddushin 1:7), based on the dispensation of the Tosafot that asher kiddishanu bemitzvotav may even be said over a practice accepted as a custom (Brachot 14a s.v. Yamim Shehahayid). Even on the left, sources will be cited and relied upon where the conclusions suit the disposition of the community.7

In reality there is no singular text or authority which Orthodox Jews will follow consistently.8 Although sources will always be cited as authorities, as in “this is the law because X said so,” their halakhic status is fickle at best. In my opinion, these sources of Jewish law and Jewish thought are not cited authoritatively as but rhetorically, usually to reach or justify an a priori conclusion. Thus way Judaism may be given the illusion of being a text based rational/legal religion, while preserving whatever accepted culture has accepted.9

Evaluating Orthodoxy

As one can expect, there are advantages and disadvantages to the Orthodox system. Orthodoxy has been able to sustain itself for centuries despite countless external and internal challenges. For the most part, Orthodox Jews still keep kosher, still observe Shabbat, and still follow the precepts of the Torah to a greater degree than the other denominations. Even if Orthodox Jews are inconsistent, they still believe that God gave the Torah and Jews are obligated to fulfill the will of God and as understood by the Rabbinic Sages.10 This belief, when combined with communal reinforcement curtails the relativistic tendencies as it affirms that there are permanent absolutes in Judaism.

However, Orthodox Judaisms are not without their problems. On a theoretical level, the widely held reasoning that “the Halacha will be formulated by the people who keep Halacha” is hopelessly circular. Jews are observant only their practices follow halakha, but halakha is determined by the practices of the people themselves. According to this logic, whatever an “accepted” Jewish community does is automatically legitimate Q.E.D.
Furthermore, when the rhetoric of being a textutal religion does not necessarilly match with the reality, people become confused and rebel. Jews are told that the Talmud is the source of Jewish Law, but are then told that the Talmud doesn’t mean what it says. What the Talmud prohibits may be permitted, and what it allows is prohibited. It is heretical to assert, “where there is a rabbinic will there is a halakhic way,” but it is equally heretical to demonstrate where a practice violates Talmudic law.

Finally, and most importantly, the notion of the sacred society contradicts the very Torah to which it supposedly adheres. Where many assume that their community is infallible, the Bible writes that it is indeed possible for a community (Deut. 13:16) or even the entire nation (Num. 15:26) to err. And as we have seen previously, the Talmud mandates that Jewish practice must have to conform to Torah, not the other way around.

With all these problems in these Orthodox systems, is there a better alternative? Maybe. Next post I’ll wrap up this series by finally outlining what I believe and why it makes sense to me as well some of the major difficulties and questions I have faced.


1. By which I mean the entire spectrum of people who identify as Orthodox – from the left of “Modern Orthodox Judaism” through the various “ultra-Orthodox” camps.
2. Off the top of my head, accepted Orthodox practice contradicts the gemara on such issues as mayim achronim, saying hallel with a bracha on Rosh Hodesh, hakafot on simhat torah, Eiruvin, and many others.
3. Including several women’s issues, secular learning, and many others. I am only referring here to where actions are inherently prohibited as opposed to a custom.
4. Read the collected works of Jacob Katz, and Urbach’s Ba’alei Tosafot
5. This phenomenon also appears regarding the authority of individual Rabbis. In the dogma of “Da’as Torah,” the Rabbis are divinely inspired and can intuit the will of God is a simliar phenomenon. Thus, their opinions are not from human understanding and thus subject to critical evaluation, but are of divine themselves and so must be as unquestioned as the Torah itself. While I do have a nice piece written about Da’as Torah, I’m probably in too much trouble as it is so it will have to wait right now.
6. For example, an opinion could resonably be disregarded if the meziut (reality) on which one source was based was inapplicable.
7. I also have another good example from when I was a Rabbinic Intern. At the time we were discussing the issue of women’s hakafot on simhat torah and how to accomodate as many people as possible while offending as few as we could. One woman indignantly asked me, “where does the gemara say it’s assur for a woman to dance with a Torah?” I pointed her to B. Beitza 30a which prohibits all dancing on Shabbat or Yom Tov. Her response? “Oh, but we don’t pasken like that.” Indeed.
8. Even the Hassidim, or smaller communities who do follow one appointed Rabbi do so primarilly for social reasons rather than objective halakhic reasons. As we covered earlier, the appointment of a Rabbi is determined by the society. Furthermore, regardless of the laity’s appointments, the Rabbi himself will selectively choose which sources he would consider authoritative.
9. Note the differences between my formulation and that of Hayyim Soloveitchik. In his article “Rupture and Reconstriction” Dr. Soloveitchik distinguishes between “textual” traditions and “mimetic” culture and laments the prevailing trend in contemporary Orthodoxy of people looking to texts to determine Jewish practice as opposed to first following the inhereted culture. For Dr. Soloveitchik, the choice of texts and tradition are a dichotomy – one or the other. I would argue that textual inquiry may not be mimetic in the way that Soloveitchik would like, it is still primaraly cultural – the accepted culture will determine which texts to read, how to read them, and how to apply them.
10. Regarding Conservative Judaism, although Zecharias Frankel and Solomon Schechter both advocated sustaining Jewish ritual, they did so not as religious obligations, but for cultural preservation. The “official” Conservative movement struggled with this for most of its history and in 1948 the Rabbinic Assembly voted down a resolution obligating the Committe of Law and Standards to rule in accordance with halkha. See the Proceedings of the Rabbinic Assembly from 1948. Reconstructionism is an extreme formulation of this principle, and Reform never claimed to be halkhic.

  1. By allowing for varying interpretations, even those which may contradict Talmudic law, Orthodox Judaisms tacitly acknowledge that their foundational principle is ultimately subjective. However, when confronted with conflicting opinions – frequently from outsiders, they will automatically revert to the fundamentalist rhetoric.
    I wrote a related post (http://jewishatheist.blogspot.com/2005/07/on-lively-but-narrow-debate-in.html) recently. Needless to say (look at my name) I’ve reached a different conclusion than you, but you might find it interesting.

  2. Well done
    But this “Furthermore, when the rhetoric of being a textutal religion does not necessarilly match with the reality, people become confused and rebel. Jews are told that the Talmud is the source of Jewish Law, but are then told that the Talmud doesn’t mean what it says. What the Talmud prohibits may be permitted, and what it allows is prohibited. It is heretical to assert, “where there is a rabbinic will there is a halakhic way,” but it is equally heretical to demonstrate where a practice violates Talmudic law. ”
    And this
    “Finally, and most importantly, the notion of the sacred society contradicts the very Torah to which it supposedly adheres. Where many assume that their community is infallible, the Bible writes that it is indeed possible for a community (Deut. 13:16) or even the entire nation (Num. 15:26) to err. And as we have seen previously, the Talmud mandates that Jewish practice must have to conform to Torah, not the other way around. ”
    Would seem to disagree with your thought that Jewish law is closest to legal positivism.
    This would imply that there is social engineering involved, including in your own personal suystem, becuase your biases and communal biases are factored in.
    Otherwise, I could take your statements to an extreme and say as long as X is systematicly correct, even if officially does not follow orthodox “culture” then it is halacha despite being a minority or outside the pale of orthodoxy.
    I could also say that you’ve just created a limiting factor on law (or will knowing you) and decreased it’s flexibility, by saying there is a system that one needs to follow. I could point out that then how do we know exactly what system to follow (don’t quote the rambam on me), and why that particular system as opposed to a different one. This might lead to concept that there must be a social traditon/meme allowing for functional interpretation, and as with all memes/social interprations can change gradually through time. Otherwise we have no explination of why we should even record minority opinions. Yet they exist.
    Your weekness is that the posts are seperate, and not together thereby at least trying to resolve that issue.
    Ok so how am I doing? Please?

  3. Thanks for this excellent essay. I like your use of the term “Orthodox Judaisms” (to remind your readers that Orthodoxy is not a monolith) and I’m fascinated by your theory that tradition takes precedence over text (inasmuch as halakha sometimes permits what the Talmud forbids, and vice versa). I look forward to reading more.

  4. ‘According to this logic, whatever an “accepted” Jewish community does is automatically legitimate Q.E.D.’
    While this is true, what maintains Orthodox Judaism is that the process of something becoming accepted is very hard, kind of like ammending the US constitution, but less formal.
    A change will be rejected if it is sudden, or without a reason that is accepted. And the change has to happen within the defined structure (basing yourself on random textual sources), which requires mastery of a lot of random sources. And when a new idea is implemented, no one knows if it will in the long term be accepted, or if it will lead to the implementers no longer being considered Orthodox. Only time will tell.

  5. Hi josh.
    What does the aggadic “eilu v’eilu divrei elokim chayyim” mean? I believe it implies that a certain multiplicity of practice is expected and normal. This multiplicity is at least as old as the Talmud, both in practice and in text. So why is it such a problem when communities with varying mimetic traditions selectively point to differing, contradictory texts to support their position?
    Generally, I think a seperation needs to be made between people who don’t know what they are talking about and people who know a lot of torah. When leaders disagree, and quote differing sources, they each have a different reason for doing so, and probably have different systems for deciding which sources are decisive – which is very different from not having such a system, or from that system being “unhalachic”. Perhaps eilu v’eilu allows many such systems of deciding, and therefore many sets of law (law+custom to be more specific) to coexist, but only on the level of dialogue in which everyone knows all of the sources.
    My personal feeling is that most of the time you don’t really have a problem following any position held by a reasonably diverse group of rabbis, or at least not a daas yachid, and for which there is also a traditional backing. And “asking your rebbe”, while sort of a cop-out, is really a necessary evil – even most learned, Orthodox jews do not have the capacity to make difficult halachic decisions about issues which gedolim can’t agree on, and they are probably better off following someone hopefuly at least more learned, if not also benevolent and well-intentioned, in some cases blindly or somewhat ignorantly. It is impractical to require every jew to be able to justify every halacha they practice, and so the answer “that’s what everyone does” or “that’s what so-and-so says” is really an adequate answer, especially for difficult issues, and even for rabbis who are not confident or qualified to address the issue more directly. Between sufficiently learned individuals (by which I mean people who know basically everything and who have practiced poskening halacha for masses of people for many years) I would expect things to be different, and I imagine (as I have no experience with these situations) that often they disagree because they choose texts differently, they know this about each other, and the disagreement ends there with some sort of “eilu v’eilu” non-resolution.

  6. Eilu v’eilu is applied in cases where there are differing opinions as to how a particular statement (or statute) should be interpreted. Thus, in the Talmud, different amoraic interpretations of a mishna or pasuk fall under that category. so too, different rishonim can disagree as to how a particular piece of talmud is interpreted. (you get the point) what Josh meant is that there are cases where the Talmud is clear and there are no differing opinions. If the Talmud is not binding (again we are talking about cases where the Talmud is clear. I dont think there is a Tanna who holds mayim acharonim eino chova). If someone post Talmud can say “we dont pasken like that.” why cant a conservative rabbi.
    I am not bothered by this “problem” but not for reasons Oren stated above. To me, there is nothing wrong with stating that the Talmud is authoritative and the final source or authroity AND that tradition and communal practice are accepted means of interpreting the Talmud. Indeed, the Talmud is binding because we accepted it. If our practice contradicts the Talmud then obviously we did not accept that part of the talmud. (An example of this is in rav ovadia yosef’s clalei hora’ah (or clalei psak – i forget) where he says strongly that kibalnu horotav Maran but then lists the exceptions. one exception is that we pasken minhag keneged maran in cases where there is a tradition of the minhag. It is obviuos that even if you hold the SA is binding [and he is willing to change major practices in accordance with SA] you can still hold that communal practice trumps)
    So long as the practice is pretalmudic (and many diaspora communities are older than the closing fo the talmud) it really isnt a big deal.

  7. I wrote out my take on this (in Ashkenaz, in particular) a while back:
    http://www.aishdas.org/avodah/vol11/v11n060.shtml#12
    Anyway, someone once said to me that the only 2 internally consistent systems of halakhic determination are:

    1. Total obedience to minhag — We do what they did last year.
    2. The system that he attributed to your father, which he described as “taking ‘Ravina ve-Rav Ashi sof hora’ah‘ very literally.”

    He is bothered by the inconsistency of those who would reject certain anti-Talmudic minhagim while retaining others.
    Personally, I think there is room for internally consistent positions between these two. I happen to use my local `eruv, but did not say a berakhah on hallel this morning.

  8. well, you say a lot, but i’m going top pick on one thing that stands out to me at the moment.
    your insistence on formal “systems” seems strange. i think you even are aware that on some level what we have now is a ‘system’ too (or at least you call it that). it’s not so easy to define formally, but that doesn’t mean its meaningless or not real (“relativistic?” whatever you meant by that).
    to illustrtate, think about what it means to say that X rishon or Y acharon has a “shitah.” that doesn’t mean that that person is a robot who can generate halachic output given procedural and factual input, but they do have a unique, personal, and more-or-les systematic approach (ie, they have certain values they tend to privelege, certain types of interpretation or conceptualization they prefer, etc). this does make halacha “subjective” in that it is legislated and practicced by ‘subjects.’ but that doesn’t make it illegitimate, random, or haphazard, as you seem to suggest.
    not to get to contemporary on you or anything, but to claim that people (defnitionally subjects) can really implement a completely ‘objective,’ formal, rules-based system of legal interpretation seems a bit naive, no?
    furthermore, and this is where my personal feelings may become rather un-mainstream, halahca would be a lot less interesting to study and meaningful to practice if it was just about mechanical symbol-manipulation or whatever an “objective” system would do.
    i wrote more but when i hit “post” it told me “your comment cannot be processed due to questionable content.” what is this, the thought police? well, i’ll try in another post…
    to be continued.

  9. this is the ending your blog rejected before. i figured out it didn’t like my original reference to the title of this duchamp painting:
    http://www.spjc.cc.fl.us/clw/comm/IDS2103/images/20th%20Century/Duchamps.jpg
    anyway, i fixed it…
    (disclaimer: what follows just occured to me now, and i’m writing it because i think it conveys a felling of what i mean to say, but i can’t promise that i want to stand by all the nitty-gritty impications of this analogy..)
    lets look at how mental pursuits (art, law, science, whatever) relate to human life. in order to process life, people have to break it apart, make some order out of its pieces, and supress the pieces (they always exist) that don’t fit. part of living richly is to have enough fragmentary pictures from different perspectives to appreciate as much as we can (think cubism) – but they can’t all be sythesized neatly together and summed up in the number 42.
    i’m toying with the idea of halahcah as (one of) the collective life (lives) of the Jewish people. so meta-halachah or whatever you’re doing wants to take it and make it into a neat little package, but by its very nature doing so eviscerates at least parts of it of their meaning.
    i guess what i’m trying to say is that what you see as a problem i see as an amazing source of richness, and while i think these discussions can be valuable, attempts to bring them to “conclusions” can do more harm than good in termso f living a religiously meaningful and relevant life. the end. thanks for your time.

  10. PPS
    i suppose i should have waited for your conclusion before writing too much of a ‘response,’ but anyway, you got me to thinking and i just couldn’t keep it to myself…

  11. 2 comments:
    (1) My personal “Hashkafa” about footnotes: They are meant to reference sources. If they relate to a side point not concretely important to the body of the essay they should either be put in a separate paragraph in the body of the work or removed entirely. Especially, in this blog, it is difficult to go back and forth between the essay and the footnotes, which is fine if you just want sources, but instead, you include most of your sources in the body and put additional information in the footnotes – please attempt to either do the opposite or leave out footnotes entirely.
    (2) Despite your attempt at hiding footnotes, I have to argue about #7. The MISHNA on Beitza 36b prohibits dancing on shabat and Yom Tov, while the Gemara on Beitza 30a explicitly states that it was done in amoritic times and, apparently, neither Abaye nor Rava Bar Rav Hanin intervened. Does this mean that the Gemara effectively cancels the law in the Mishna, or at the very least, should you have repeated this Mishna to the woman if not even Abaye was willing to step in and stop such a practice?

  12. Miriam:
    1. I love how you feel the need to actually tell us your post has ended by writing “the end.” I love it because it is rarely ever the end. Brilliant.
    2. I will defend Josh (with another disclaimer that this does not represent my belief at all) by saying that maybe we cant demand an objective system of interpretation but we can demand intellectual honesty. Josh would have no problem if people said “parts of Talmud are binding…parts are not…in deciding halacha deference must be given to communal practice…except when the masses are wrong… It takes a qualified Rabbi to decide what is halacha….”qualified” is determined by a process of peer review by other qualified rabbis” (BTW, if you think about it, this is not such a ridiculous position as Josh makes it out to be. I mean we know you cant pasken like the mishna and the rishonim dont do to the gemarra nearly what the gemara does to the mishna.)
    Saying that would at least be honest.
    Jacob

  13. jacob,
    re: intellectual honesty.
    i think it is important. but i think that it is a lot more common, at least among the learned orthodox, than josh, or your re-statement of josh, suggests.
    i don’t mean that even poskim don’t, for rhetorical or other reasons, state that they, or “we” as the halachic community, follow certain rules even though they/we don’t follow those rules 100%. (such statements would seem to be intellectually ‘dishonest.’) i just tend to believe that most people who know enough to write teshuvot, for example, know enough to be self-aware when they make such generalizations.
    so if they’re ‘self aware,’ why speak so misleadingly? i think statements like “this is the law because X says so, and we always follow X” are meaningful even if not absolutely historically/empirically accurate. you can say them and mean something real (eg, ‘in this case according to my way-too-complicated-and-personal-judegement we should follow X because X is generally authoritative even though in other cases with different factors at play X is disregarded.’) in the discourse of halachah we prefer categorical statements to hyper-qualified and therefore unconvincing ones. but that doesn’t mean that they all have to be taken at face value.
    presumably, if you stop any serious talmid chacham on the street they can come up with a list much longer josh’s of inconsistencies, etc. yet they all continue to contribute to it. why? maybe because they know that the task of completely flattening and systematizing something as rich as the halachah/torah is definitionally impossible, and the whole discussion of general rules is really just one attempt to make some sense of what is ultimatley too big to deal with without some distortion? (ie, all these alleged rules are necessary, but also necessarily distortional)
    or maybe said talmid chacham has found a hidden system where i can’t.
    i obviously tend to go with the first option, but even if the latter is true, the point remains that what halachah needs is not some sort of purge of illogical or inconsistent rulings, but to continue to trust the people who know the most about it not to do violence to it.

  14. HI,
    Now to comment on Josh’s actual post, not just the footnotes. Actually, I’ll just comment on the comments:
    Jacob (or Jacob as pseudo-Josh) and Miriam seem to fudamentally disagree on something much larger – the nature and purpose of Halacha. Jacob’s (and josh’s?) view is that Halakha stems from a natural process related to the finite world in which it is to be performed – from nature, from “Midat HaDin” – from Shem ELOKIM. Miriam tends to view Halakha as a “black box” deciphered only through qualified Hakhamim. In other words Mitzvot are an arbitrary acceptance of HASHEM’s will, though not necessarily a natural following of the world’s creation – “Midat HaRahamim” – from Shem HaVaYaH.
    This arguement, of course, preceeded the Rav and the Rebbe, the Baal Shem Tov and the Gr”a, and possibly even Hillel and Shammai (n.b. the argument of Keitzad merakdim.) Amazingly, it was succinctly reviewed in an article I wrote for Enayim L’Torah in 2001. Go Figure!

  15. Miriam:
    Your third to last paragraph reduces our argument to a question of fact. Pseudo-Josh might disagree with the begining of that paragraph.
    Danny –
    I dont think your kabbalistic analysis is correct. Neither in your assumptions of pseudo-josh’s view (or miriam’s for that matter) nor in your conlusions. This is not the forum to expand on this but you send me the article you wrote with the sources I would love to comment on it.