In the previous post I posed this question:
Why is there no guidebook which one can consult regarding the clear rules of separation of white and colored garments?
The answer to this question also explains why there are no legal codices which tell us which detergents to use when, or what should the exact temperature of the water be. As a matter of fact, there are no such guides for most house chores, or for most activities in life (riding a bus, shopping at a supermarket, going to the movies). Those guides were not written because we will not have enough room to store them and they will have to be constantly updated, and because we can figure most these things out by trial and error.
We need detailed guides where trial and error will not do, such as becoming a pilot, but once a pilot is certified, things will come his or her way which were never taught or simulated in flight school. In other words, we require adherence to strict rules where the risk factor is high, but we also understand that there are situations which cannot be anticipated by the makers of the rules.
If we go back to Auslander’s Golems, we find two beings with Artificial Intelligence (AI), who are trying to figure out the right way to separate a pile of clothes into colors and whites. Their knowledge is base on that of the programmer (Epstein) and they are trapped within his world, unable to incorporate data unforeseen by him. Since they lack the intuitive power to decide what goes where, they have to refer to the rules set by their maker. Epstein himself, like you and me, was probably wrong more than once when sorting the laundry, and he learned from his errors. The risk factor here is low – a couple of damaged items, though there might be those who divide their laundry into seventeen piles, just to be safe.
Well, I was carried away with the analogy, so let us analyze what Auslander is saying about the world of Halakha. The Law was given to us by the Creator, who in His infinite wisdom knew that not all details can be covered in a legal codex. The Mishnaic sages transmitted the Oral Law but also added a lot of their own. The poskim of today are trapped within the world created by the early sages, the programmers. With all due respect to their amazing wisdom and knowledge, the early sages were human, and there is no way that they could have anticipated future developments and the ramifications of the laws they have established.
This concept was clearly expressed by R. Shemuel di Medina (Salonika, 1506-1589)[1]:
לבי אומר לי שמאחר שהדבר ברור כי הפרטים לא תקיף בהם הידיעה, והמאורעות הנמצאות בכל יום משונות זו מזו, אם כן אי אפשר לחכמים לכתוב כל הפרטים ולהעלותם בספר, אלא שאנו לומדין ענין מענין כיוצא ודומה לו… וזה מקיום העולם שאם אתם מעמידים הכל על הדינים הקצובים בתורה כו’ וכמו שכתבו ז”ל לא חרבה ירושלם אלא שהעמידו דיניהם על דין תורה
My heart tells me that it is obvious that one cannot encompass all details, and the events [cases brought to court] occurring on daily basis are diverse, and the sages therefore are incapable of writing all the details and legislate them, rather we must derive conclusions intuitively… this is part of maintaining law and order, because if we follow only the written law it will bring destruction, as the rabbis said regarding the destruction of Jerusalem, which was brought about because of their strict adherence to the written word.
The key phrase in this paragraph, and an essential element in the whole chapter, is “my heart tells me.” Rabbi Di Medina argues that the posek must sometimes follow a hunch, and while this particular chapter deals with monetary issues, the dozens of examples I cited in the previous posts show that the rabbis used to count on the hunch, or gut feeling of people regarding what is right and what is wrong.
Today I am also leaving you with homework (two questions, no extra credit):
- What is the risk factor in halakha, i.e. what is the danger if a halakhic ruling is incorrect?
- The Talmud says that after the destruction of the Temple the only place God has is the four cubits of Halakha. This is usually interpreted as praise for halakha, whose study creates a temple for the divine providence. Is it possible that the phrase was originally a criticism?
[1] שו”ת מהרשד”ם חלק חושן משפט סימן שס
