Tuesday, April 01, 2008

Rabbi Wieder Factlet I

I’ve been listening to the shiurim of R’ Jeremy Wieder on Brochos, this year’s tractate being studied at RIETS of Yeshiva University. R’ Weider has a somewhat academic approach, which appeals to me – in addition to the traditional lerning of the text through rishonim and acharonim, R’ Wieder encourages his students to do what the Rishonim and Amoraim themselves did – check parallel texts, in Tosefta, Yerushalmi and halachic midrashim, to see how alternate versions of the sugya at hand shed light on the various issues being discussed.

Along the way, he brings up interesting factlets reflecting the academic approach to Talmud, which may not have much to do with the text at hand. Everybody goes off on occasional tangents, no?

Today’s factlet (less connotation of “spurious” than “factoid”) concerns the opening of the Shev Shmateta, a popular book in yeshivos, exploring the origin and meaning of various rabbinic decision principles, such as safek (doubt), rov (majority), chazakah (presumption), etc. Written in the early 19th century by the author of the Ketzos haChoshen, its attempts to quantify rabbinic principles of doubt-resolution in terms of probability, decades before mathematicians formalized it, are fascinating. Printed alone, it’s one slim volume, but with a good commentary, such as the “Shmateta Mevueret”, it can take up multiple volumes … but I digress.

Apparently, because the Shev Shmateta didn’t have all the texts that we have today, he brings a lot of complicated solutions to the following question:

Rambam postulates that from the Torah’s own perspective, without later Rabbinic accretions, all situations where the nature of the incident, or the ruling to apply to the incident, is in doubt, should be treated leniently, even where the law in question is from the Torah. We have a later idea, a rabbinic principle, that situations of doubt in a Torah law are treated stringency, but that rule is itself a Rabbinic stringency. Treated on its own terms, the bare Torah principle for dealing with situations of doubt, is to rule leniently. Safek deoraita lekula – a doubt in a Torah law is ruled leniently.

With that principle as a groundrule, then, the case of a mamzer (child of incestuous or extramarital birth) whose status is in doubt (perhaps he was from the husband, perhaps from the paramour, we don’t know), should be permitted to marry a regular Jew who is not hirself a mamzer. The Torah law is that a mamzer is not allowed to “enter the congregation of Israel”, marry a regular Jew; in a case of doubtful mamzer status, then, the above principle should tell us that s/he is permitted to marry anyone. Why, then, does the Rambam feel that it’s necessary to prove this case, that a doubtful mamzer may marry anyone, from a verse? If you have a clear rule, you shouldn’t need a verse to prove a specific case.

The Shev Shmateta notes this contradiction, and brings a lot of attempted Rabbinic solutions to solve this conundrum. The most convincing ones, apparently, maintain that Rambam really believed that a doubt in a Torah situation should be ruled stringently, like the usual principle dictates, and that the texts made a mistake in claiming that he believed that from the Torah’s own perspective, doubtful cases should be ruled leniently.

However, the Shev Shmateta didn’t have a lost teshuvah of the Rambam, that clears up the whole conundrum. In a manuscript of the Rashba, discovered after the composition of Shev Shmateta, the Rashba quotes a lost responsum of the Rambam that says that the Rambam’s source for his principle that “from the Torah, safek d’oraita lekula” IS this verse, the one that tells us that a doubtful mamzer is permitted to marry by Torah law. The Rambam really held that the verse proved that from the Torah’s own perspective, doubtful cases should be ruled leniently, because this case is ruled leniently (although in reality, since we follow the Rabbinic principle that safek d’oraita lechumra, a doubt in Torah law is ruled stringently, we don’t actually permit the mamzer to marry).

So the whole conundrum was caused because we didn’t know that the Rambam linked the doubtful mamzer case causally to the principle.

Let’s review:

Rabbinic principle: safek d’oraita lechumra


. For the bare Torah: safek d’oraita lekula.

. Mamzer case: needs a verse to prove the Torah is lekula


. if the Rambam had the principle, why use the verse?

Solution, from lost Teshuvah:

. The verse proves the leniency in the Mamzer case, which implies that the bare-Torah rule generally is lenient in cases of doubt.

Fascinating, no? I hope you could follow all that.


Anonymous said...

Great indeed. But that brings up another question: why didn't the ShSh, even without the teshuva, answers precisely that? Maybe this means he holds that these kind of klalim, even when Deoraysa, are not stated in psukim? Where does he know it from, and why is the Rambam disagreeing? Also, what would he do with the discusssions in the Gemara like in Chullin 12b or so, where they discuss the source of the "follow the rov" in the psukim?

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