Lo Bashamayim Hee

Originally published 5/27/08, 12:37 AM.

 Some give and take on Avodah with regard to Parshat Nitzavim

First Cantor Richard Wolberg:

«The Sages relate that the angels complained to Hashem when He chose to share His precious Torah with His people. They argued, "Your glory (Your Torah) should remain among the Heavenly beings. They are holy and Your Torah is holy, they are pure and Your Torah is pure and they are everlasting and Your Torah is also." One of the answers to that is three words from the Torah: "Lo bashamayim hee".

However, Midrash Shochar Tov 8 says that Hashem responded that the Torah could not remain amongst them because they are perfect spiritual beings with no mortality, impurity or illness. Hashem's true glory would ultimately come from man plagued by impurity and mortality.

Cantor R Wohlberg»

Then RRW:

«Hazal wanted us to know that once the Torah left the heavens it would no longer remain the pristine Perfect Handiwork of HKBH, but would henceforth be managed and interpreted by error-prone humans. Nevertheless - despite the loss of innocence for the Torah - this step was necessary. The time had come for the innocent Torah to mix it up with the mortals and to help us even if if would not remain in its original state.

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Hence though Torah started miSinai, it is not necessarily purely miSinai any longer. It is now an admixture.

~*~*~*~

Now for Michael Markovi:

A much-expanded version of a previous post of mine to this thread, regarding my...err...radical view of TSBP:

Rabbi Moshe Shmuel Glasner makes a large point of this, saying that the truth of Torah She'be'al'pe is not what Hashem says but what we say (Rabbi Eliezer and the oven), in line with Drashot haRan #5 on theoven and Sefer haChinuch on the mitzvah of following the judges, that
we follow our rabbis even when they're wrong.

See also Rabbi Gil Student's "Halachic Responses To Scientific Developments"
(http://www.aishdas.org/toratemet/science.html)
citation of Yad Yehuda 30:3, quoting Rambam Hilkhot Shekhita 10:12-13, that we cannot question Chazal's decisions regarding which animals are treifa, because all we have is Chazal's decisions, and they are sealed.

According to Rambam, drashot can be overturned by a later Sanhedrin.

In fact, Rabbi Glasner, quoting the Midrash Shmuel on Avot, "aseh sayag laTorah", says that the Oral Law was oral davka to make it flexible and subject to change. This explains the Gemara's apocalyptic permission to write the Oral Law, viz "eit la'asot lashem"; by writing the Oral Law, to save it, a vital piece of it was destroyed, part of its raison d'etre in fact! Because once a piece of the Oral Law was written, it became authoritative, and no longer subject to change and
evolution as was previously the case.

Rabbi Eliezer Berkovits (who received semicha from Rabbi Glasner's son, Rabbi Akiva Glasner) expands extensively on this point, that the writing of the Mishna, Gemara, and the Codes successively ossified the halacha in a way that the Oral Law was never meant to be, making us Karaites of the Oral Law.

See Rabbi Glasner's hakdamah to his Dor Revi'i, perush on Chullin. It is partially translated by Rabbi Yaakov Elman at
http://www.math.psu.edu/glasner/Dor4/elman.html.
See also the biography by David Glasner at
http://www.math.psu.edu/glasner/Dor4/Dorrev7.html.
As for Rabbi Berkovits, he makes his points in a variety of locations, including Not in Heaven: The Nature and Function of Halakha (aimed at secularly-educated scholars), Halakha: Kocha v'Tafkida (aimed at rabbinical scholars), Towards Historic Judaism, and Crisis and Faith.

Rabbi Glasner simply takes this entire philosophy a bit further thanmost. Likewise Rabbi Berkovits on Moshe seeing Rabbi Akiva's class andnot understanding and learning from this that Torah does evolve overtime; both are more extreme than most, but the gist of what they say is quite normative, as far as it seems to me. In fact, once we say that

1) halachot could be forgotten and had to be recovered by humans, 2) many drashot were in fact used by humans to actually derive the law(often **but not always** they were asmachtot for laws already knownas kabbalot)

(See, for example, Dynamics of Dispute by Rabbi Zvi Lampel, "Interpretation" by Menachem Elon in Encyclopedia Judaica, Rabbi Isidore Epstein's introduction to the Soncino Midrash Rabbah, Rabbi Gil Student "Midrash Halakha" at
http://hirhurim.blogspot.com/2004/11/midrash-halakhah.html)

we are admitting the human element of many halachot, and we can no longer say it is purely m'Sinai as most say Torah She'be'al Pe is, and we are forced, as it seems to me, to adopt some sort of opinion similar if not as extreme as those of Rabbis Glasner and Berkovits, as least as far as theory goes (Rabbi Berkovits's actualization of thisphilosophy is a matter for a separate debate.)

Therefore, for example, we ought to realize that an Amora's explanation of a Tanna may be his own personal thoughts, similar to any rav's understanding today of the intent of a prior authority. Rabbi Adin Steinsaltz in his Essential Talmud remarks on the peculiar Talmudic method of okimta, remarking that it aspires not for historicity, but rather, it attempts to make as many pieces of evidence agree as much as it possible.

There is thus no guarantee that a creative drasha is the correct intent of Torah, nor is there any guarantee that an Amora correctly understood a Tanna - see Tosafot Yom Tov Nazir 5:5 for permission to permit mishna differently than the Gemara.

Evidently, the Shadal (Shmuel David Luzzatto) held similarly to this whole line of thought, that Chazal's drashot on mikra are not necessarily "correct". See Shmuel Vargon's "Samuel David Luzzatto's Critique of Rabbinic Exegesis Which Contradicts the Plain Meaning of Scripture",http://www.biu.ac.il/JS/JSIJ/sum2.html
(note: my Hebrew is insufficient to have read this article yet, so I am relying on the abstract).

Rabbi David Bigman, rosh hayeshiva of Yeshivat Maaleh Gilboa (on Har haGilboa in the Jezre'el), for example, advocates critical Talmud study, asking, for example, what the Tanna meant independent what the Amora thought he meant; what different codifications of Oral Law say (Bavli, Yerushalmi, Tosefta, etc.), each in their own light. See his "Finding a Home for Critical Talmud Study",

http://www.edah.org/backend/JournalArticle/bigman2_1.pdf,
http://www.myjewishlearning.com/texts/talmud/Gemara/ModernStudy/BigmanCritical.

The Kuzari in 3:41 opines that the omer could be brought on any date chosen by Chazal, and it was Chazal who chose the second day of Pesach. If so, then it means the contrary opinions of the Tzadukim (that it was to fall on Sunday, as the literal mikra indicates) is wrong only insofar as it goes against the binding ruling of Chazal, and not because it was an invalid drasha. It seems to me that perhaps alternatively, we simply don't listen to Tzadukim even if they are correct; there is a story in the Gemara of one rabbi being put to death, and he realized it was because he once found a drasha of a min to be pleasing; even though the drasha was valid, he still should have ignored it. In any case, we can extrapolate that in general, freedom of midrash is restricted more by Chazal's binding decisions than any claim of theirs to being the only correct opinion.

I thank Rabbi Yaakov Elman of Yeshiva University for providing me with sources (most notably, he introduced me to Rabbi Glasner when I mentioned Rabbi Berkovits), as well as having extensive discussion with me on their implications. It should be noted, however, that this philosophy is still a work in progress by me, especially as I continue to learn more Chumash, Gemara, and Halacha. It should also be noted that any errors are mine, not Rabbi Elman's, as he has already pointed out certain errors in my thinking, and no doubt there are still more to be found.

Mikh'el Makovi