Guest Post: Evidence from the Rambam on P'sak [Can we "pasken" the age of the universe? (Part 3)]

Copyright 2014 by David Ohsie. All rights reserved

“... The Rambam states that he does not feel compelled to decide issues with no practical ramifications. In the Mishneh Torah, however [...] he often rules even on such matters”. -- Rabbi Moshe Meiselman, Torah, Chazal and Science, pg 618.

In our previous post, we described Rabbi Meiselman’s view of the Rambam on P’sak outside areas of practical halacha. In this post, we’ll examine the first element of Rabbi Meiselman’s thesis.

Rabbi Meiselman first argues that the Rambam actually issues p’sak all the time on matters that are not of practical import, and his principle is that he merely “will not necessarily give a definitive ruling” (TCS pg. 616).  In my humble opinion, this thesis is very difficult to maintain for three reasons: it contradicts the words of the Rambam; it contradicts the Rambam’s reasoning; the evidence adduced for this thesis does not actually provide any support.

Textual Evidence

First of all, we’ll examine the Rambam’s words. (For this analysis, we'll use the same translation of the Rambam into Hebrew that Rabbi Meiselman uses.  A better analysis would go back to the original Arabic).  As has been previously described, in at least five places, the Rambam describes an argument or dispute that has no practical impact and then offers his principle that P'sak does not apply outside of practical halacha:

1. He writes with regard to the argument in Sotah 3:5 “אין לומר שם הלכה כפלוני” or “it is not [fitting] to say there that the halacha follows so-and-so”. 

2. In Sanhedrin 10:3, he writes “אין מקום לפסוק כאחד מהם” or “there is no place to ‘pasken’ like one of them [the disputants]”. 

3. In commentary to Shevuos 1:4, he writes “לא נאמר בו הלכה כפלוני” or “it is not said in it [this dispute] the halacha follows so-and-so”. 

4. In Sefer Hamitzvos, negative commandment 233 he writes “לא אפסוק בו הלכה ולא אומר הלכה כפלוני” or “I will not ‘pasken’ in it [this dispute] a halacha and I will not say that it is said in it [this dispute] that the halacha is like so-and-so”. 

5. Finally, in Maamar Techiyas HaMeisim he writes “דבר שיש בו מחלוקת ולא יביא למעשה ,אפשר להכריע בו אחד משני מאמרים על חבירו” or “In any matter where there is an argument without practical implication, it is possible to decide according to either of the two positions over the other”.

It is clear from the first two quotations that the Rambam is saying that it is inappropriate or impossible to issue a p’sak outside of halachah.    The third quotation also indicates that P'sak in these areas is not possible, but this quotation is somewhat ambigous.  The fourth quotation could be interpreted either way.

It is important to note that in each these places, the Rambam explicitly refers back to his other statements in the Peirush HaMishnayos with phrases such as "I’ve already said to you once". In all cases, he writes that he is enunciating a single principle, so it is infeasible to maintain that each of the sources given represents a different principle.  Therefore, the first two quotations alone are enough to refute Rabbi Meiselman's thesis.

However, the final quotation (#5) deserves further consideration. At first glance, it seems to support Rabbi Meiselman’s contention that in non-halachic matters, it is possible, but not required to decide (להכריע) the matter; thus P’sak is optional.   However, this would be a clear misreading of the sentence.

In this instance, the Rambam is discussing the story of Yechezkel's revival of the dry bones (Yechezkel 37:1-14).  The Rambam is explaining that, while belief in resurrection of the dead is a mandatory belief in general, it is permissible to believe that this particular of episode of resurrection may be interpreted either literally or figuratively.  His purpose here is to indicate that it is permitted for each qualified individual “to decide” (להכריע) that the story of Yechezkel’s revival of the dry bones was either figurative or literal precisely because no P’sak is possible.

If the word להכריע (to decide) meant that it was possible to decide the issue definitively with a P'sak, but that the Rambam was merely refraining from making the decision, then the implication of the statement would be reversed.  Since it is possible to decide the issue using p'sak, one would need to remain neutral in his belief, since a decision by a Posek could render his or her belief heretical or at least "against the halacha".  This is the precisely the opposite of the Rambam's intention.

Thus, the word להכריע in quotation #5 refers to a decision to prefer one or the other interpretations (literal or figurative) outside the halachic process.  It is thus permitted for each qualified individual “to decide” (להכריע) that the story of Yechezkel’s revival of the dry bones was either figurative or literal precisely because no P’sak is possible.  As a result, the words of the Rambam in Maamar Techiyas HaMeisim don’t fit Rabbi Meiselman’s thesis.

Evidence from the Rambam’s reasoning

Aside from the Rambam’s basic language, his explanation of his principle also contradicts R. Meiselman’s thesis that he is merely “refraining” from issuing a P’sak.  In most of the places where he refers to this principle, he says that in any non-practical or theoretical matter P’sak is not appropriate, with no further explanation.  By itself, this strongly implies the theory that we described in the out first post: P’sak is a legal process that cannot “decide” the underlying non-halachic reality. Thus it is impossible to decide the issue through p'sak. Sometimes the majority is right, but sometimes the majority is incorrect. 

However, we can do better. In Shevous 1:4, the Rambam is even more explicit. There he says that we don’t give a p’sak about which sacrifices give atonement for which sins “because it [the dispute] is dependent on God”.  Here, he is clearly saying that we don’t decide the issue because the underlying decision as to which sacrifices give atonement to which sins is out of our hands.  He is clear in this case that P’sak is simply not possible.

Rabbi Meiselman’s evidence

Rabbi Meiselman adduces as evidence for his thesis that the Rambam’s principle is that “P’sak is optional” the following interesting fact: with regard to some of the arguments where he mentions in Peirush Hamishnayos or Sefer Hamitzvos that he will not give a P’sak deciding between two opinions, he does give what R. Meiselman calls “definitive rulings” in the Mishneh Torah deciding between the opinions. Since Mishneh Torah is a book of Halacha, Rabbi Meiselman asserts, we see that in fact the Rambam does give a P’sak. We see that, according to this reasoning, P’sak in cases not bearing on practical Halachah is possible.

There are some obvious problems with Rabbi Meiselman’s evidence. For one thing, just because something is recorded in the Mishneh Torah, doesn’t mean that it is P’sak. For example, the Rambam writes in Yesodei Hatorah 3:1:

The spheres are called the heavens, the firmament, the habitation, the skies. There are nine spheres. The closest sphere is the sphere of the moon. [...] The ninth sphere is the sphere which revolves each day from the east to the west. It surrounds and encompasses everything.

I think that is clear that the Rambam is recording contemporary scientific understanding (which he considers relevant to understanding Maaseh Breishis) and not p’sak. Many other halachos of the Mishneh Torah are of this nature.  So the mere fact that the Rambam records something in Mishneh Torah does not indicate that he is rendering a P'sak.  (Professor Lawrence Kaplan notes additional examples and inferences from the Rambam's language in the comments to the first post in the series).

The second issue is that it is unclear what would be meant by P’sak in these cases. For example, as Rabbi Meiselman notes, the Rambam records in Shegagot 11:9:

If he did not have knowledge neither at the outset, nor ultimately, the goats offered on the festivals and on Rosh Chodesh, bring about atonement.

This is in accordance with the opinion of Rabbi Yehuda in the Mishnah (Shevous 1:4). But, as we pointed out above, this in an example where the Rambam explicitly mentions that he will not rule because the matter is “dependent on God”. It is very difficult to imagine that the Rambam is rendering a P’sak for God on which sacrifices atone for which sins.

The obvious explanation in these cases is that the Rambam felt that the principle was important enough to record in Mishneh Torah.  However, in Mishneh Torah the Rambam rarely records a dispute, as opposed to the Peirush Hamishnayos which is a commentary on the Mishneh including all of its disputes.  Unless the Rambam was willing to simply omit the topic of a dispute altogether, he was forced to bring down some opinion in the dispute, perhaps the one that he felt was most likely.  For this reason, when the Rambam records a single opinion in Mishneh Torah, this does not automatically imply that he is giving a “definitive ruling”.

Other authorities and academic analysis

Commenter "Ephraim" points out that the Tosfos Yom Tov on Sotah 3:5 notices the phenomenon described by Rabbi Meiselman.  Despite the fact that the Rambam says that no P'sak is possible in this Mishnah, he appears to give a ruling in Mishneh Torah in accordance with Rebbi.  Tosfos Yom Tov offers two possible explanations:

1.  The Rambam holds that Rebbi is not coming to argue, but rather to explain the Tanna Kama.

2.  "He was not intending to pasken a halacha [in Mishneh Torah] since he already wrote in his Peirush HaMishnayos that when there is a dispute between the sages in a belief which has no practical impact that we don't say that the halacha is like so-and-so.  Rather he felt that Rebbi's reasoning was more compelling and therefore he quoted his words".

The Tosfos Yom Tov explicitly supports our contention here that the Rambam's principle is to be interpreted in a straightforward manner: P'sak is not possible in non-practical matters.  He also offers up our suggested resolution as a possibility: not everything in Mishneh Torah is P'sak.

Likewise, Prof. Marc Shapiro describes Prof. David Henshke in "Is There a 'Pesak' for Jewish Thought?", (published in Jewish Thought and Jewish Belief, Beer Sheva: Ben-Gurion University Press, 2012.) as maintaining that "the fact that Maimonides in the Mishneh Torah rules on disputes that in the Commentary on the Mishnah he had claimed were not to be decided halakhically shows that he changed his mind."  Prof. Shapiro responds that

[A]ll Maimonides is doing in the Mishneh Torah in these examples[...] is offering his opinion about non-halakhic matters.  He is not expressing any binding decision, for as he explained in his Commentary on the Mishnah, these sorts of matters are in God's hand alone.

Neither considers the resolution offered by Rabbi Meiselman that the Rambam's principle indicates that P'sak is merely optional.

Other Evidence

However, some of the most compelling evidence, in my opinion, against the notion that the Rambam rules definitively on non-halachic areas in the Mishneh Torah is cited by Rabbi Meiselman himself.  We’ll explore this evidence in the next post.

The views in this post are mine and may not represent the views of the blog owner. I encourage comments and will make every attempt to address any questions in the comments section