450) Could conflicting rabbinic views both be right?

Can an Ashkenazi rely on legal pluralism to drink reheated tea in a Yemenite home on Shabbat?

Introduction

This article – based extensively on the research by Professor Richard Hidary from Yeshiva University[1] – looks at the possibility that the Talmud was open to the idea that two conflicting rabbinic views could often both be correct. 

Some[2] argue that in a Talmudic matter, there can only essentially be one correct answer. This view emphasises the notion of an overarching Talmudic truth. Hidary, on the other hand, rejects this legal monistic approach and, instead, brings textual support for legal pluralism – where the Talmud adopts the position that conflicting views can coexist and be equally valid.  

[Note: This article discusses general ideas and principles. However, as always with matters of Halacha, a competent Halachic authority should be consulted for practical aplications.] 

The broad programmatic statements

The Talmud makes some very broad ‘official’ or ‘programmatic’ statements about its pluralistic approach to its law: 

אֵלּוּ וָאֵלּוּ דִּבְרֵי אֱלֹהִים חַיִּים הֵן

“these and these are the words of the living God” (y.Yevamot 1:6 (3b); b.Eruvin 13b and b.Gittin 6b). 

ואמר להם אם הלכה כמותי מן השמים יוכיחו יצאתה בת קול ואמרה מה לכם אצל ר"א שהלכה כמותו בכ"ם עמד רבי יהושע על רגליו ואמר (דברים ל, יב) לא בשמים היא

“it [i.e., Torah] is not in heaven” (y.Moed Katan 3:1 (81c-d) and b.Bava Metzia 59b). 

מקרא אחד יוצא לכמה טעמים

“a single verse expresses several meanings” (b.Sanhedrin 34a). 

בַּעֲלֵי אֲסֻפּוֹת נִתְּנוּ מֵרוֹעֶה אֶחָד

“all the words were given from one shepherd” (t.Sotah 7:12 and b.Chagiga 3b).[3] 

Hidary acknowledges that short aphorisms and broad and “programmatic statements do not make a definitive case” (Hidary 2010:233). However, he goes on to show how firstly; the Talmud specifically adopts the model of ‘argumentation’ or ‘dialectics’ rather than present ‘lists’ of laws, and secondly; these terse and popular ‘programmatic’ statements are backed up by technical examples scattered throughout the Talmud which sustain the theory of Halachic plurality. 

The adoption of the argumentative model

The fact that the Talmud chooses the model of debate is an indication that it has no intention to dictate laws. David Kraemer writes that Talmudic editors’: 

‘‘willingness to engage in argumentation is evidence of their recognition that the answer to a given question or problem is not necessary or self-evident. To the contrary, if they are willing to debate the issue, they must agree that there are at least two possible answers or solutions.’’[4] 

Pluralism in the Mishna

We find this pluralistic approach developing even earlier on in the Mishna (i.e., before the Gemara period). The Mishna was open to mentioning and discussing different views by various rabbis and was : 

“the first text of Jewish law to include multiple named opposing opinions, [which][5] suggests a pluralistic attitude that all of these opinions are authentic parts of the canon” (Hidary 1990:237). 

The Mishna was happy to include minority opinions that had not become the accepted Halacha: 

וְלָמָּה מַזְכִּירִין דִּבְרֵי הַיָּחִיד בֵּין הַמְרֻבִּין, הוֹאִיל וְאֵין הֲלָכָה אֶלָּא כְדִבְרֵי הַמְרֻבִּין. שֶׁאִם יִרְאֶה בֵית דִּין אֶת דִּבְרֵי הַיָּחִיד וְיִסְמֹךְ עָלָיו, שֶׁאֵין בֵּית דִּין יָכוֹל לְבַטֵּל דִּבְרֵי בֵית דִּין חֲבֵרוֹ עַד שֶׁיִּהְיֶה גָדוֹל מִמֶּנּוּ בְחָכְמָה וּבְמִנְיָן.

“And why do they record the opinion of a single person among the many, when the halacha must be according to the opinion of the many? So that if a court prefers the opinion of the single person it may depend on him. For no court may set aside the decision of another court unless it is greater than it in wisdom and in number…” (mEduyot 1:5). 

The Mishna explains that the reason for including minority opinions was that a future court might agree with the minority opinion and overturn the current decision. This means that even the ‘rejected view’ has truth value. 

Pluralism in the Gemara

What follows are some examples of legal pluralism as found throughout the Gemara: 

1) b.Shabbat 61a: 

אָמַר רַב יוֹסֵף: הַשְׁתָּא דְּתַנְיָא הָכִי, וְאָמַר רַבִּי יוֹחָנָן הָכִי, דַּעֲבַד הָכִי — עֲבַד, וְדַעֲבַד הָכִי — עֲבַד

“Rav Yosef said, ‘Now that we have learned this and R. Yochanan has said that, one who acts this way has acted [legitimately] and one who acts that way has acted [legitimately].” 

2) b.Shavuot 48b:

אמר רב חמא השתא דלא איתמר הלכתא לא כרב ושמואל ולא כרבי אלעזר האי דיינא דעבד כרב ושמואל עבד דעבד כרבי אלעזר עבד

“Rav Chama said, ‘Since the halacha has not been stated either like Rav and Shmuel or like R. Elazar, a judge who rules according to Rav and Shmuel has acted [legitimately], and one who rules according to R. Elazar has acted [legitimately].’” 

3) b.Berachot 27a:

הַשְׁתָּא דְּלָא אִתְּמַר הִלְכְתָא לָא כְּמָר וְלָא כְּמָר, דַּעֲבַד כְּמָר — עֲבַד, וְדַעֲבַד כְּמָר — עֲבַד

“Since the halachah has not been stated either like this master or like that master, one who acts according to this master has acted [legitimately] and one who acts according to that master has acted [legitimately].” 

Hidary emphasises: 

“the rabbis as legislators confront a range of authentic and theoretically correct possibilities. From among these possibilities, they choose one as the only legitimate law for practice. However, when, as in the cases discussed here, there is no clear choice, then the range of theoretical possibilities, all of which have truth value, remain available” (Hidary 1990:243). 

These concern cases where the law has not yet been decided. But the same plurality applies to cases where the law has been decided: 

4) Here is an example from the Talmud Yerushalmi: 

רַה הוּנָא בְשֵׁם רַב. הֲלָכָה כְרִבִּי מֵאִיר. שְׁמוּאֵל אָמַר. הֲלָכָה כְרִבִּי יוּדָה. רִבִּי יְהוֹשֻׁעַ בֶּן לֵוִי אָמַר. הֲלָכָה כְרִבִּי שִׁמְעוֹן. אָמַר רִבִּי שִׁמְעוֹן בַּר כַּרְסָנָא. מְכֵּיוָן דְּתֵימַר. הֲלָכָה כְהָדֵין וַהֲלָכָה כְהָדֵין. מָאן דַּעֲבַד הָכֵין לָא חֲשַׁשׁ וּמָאן דַּעֲבַד הָכֵין לָא חֲשַׁשׁ. אָמַר רִבִּי מָנָא. מִכֵּיוָן דְּאִיתְמַר הֲלָכָה כְרַבָּנִן. שָֽׁבְקִין לְיָחִיד וְעָֽבְדִין כְרַבָּנִן

“Rav Huna in the name of Rav [says]: The halacha follows R. Meir. Shmuel says: The halacha follows R. Yehudah. R. Yehoshua ben Levi says: The halacha follows R. Shimon. R. Shimon bar Carsena says: Since you say the halacha follows them and the halacha follows them, one who practices this way need not worry and one who practices that way need not worry” (Talmud Yerushalmi, Eruvin 1:4 (19a). 

Hidary points out that this  Yerushalmi is an important source supporting legal pluralism because: 

“Unlike the Bavli formulations, where the problem was that ‘the halacha has not been stated either like this master or like that master,’ the Yerushalmi confronts a situation where all opinions have already been approved as normative” (Hidary 1990:253). 

This means that, according to the Yerushalmi, even in cases where the Halacha has been decided and conflicting views have been sidelined, “one who practices this way need not worry and one who practices that way need not worry.” 

5) In a similar Yerushalmi we read (concerning a dispute over whether the high priest walks around the altar while sprinkling each corner or whether he stands in one place while sprinkling): 

שְׁנֵי כֹהֲנִים בָּֽרְחוּ בַפּוֹלֶמוֹסִיּוֹת. אֶחָד אוֹמֵר. עוֹמֵד הָיִיתִי וּמְחַטֵּא. וְאֶחָד אוֹמֵר. מְהַלֵּךְ הָיִיתִי וּמְחַטֵּא. אָמַר רִבִּי יוּדָן. הָדָא אָֽמְרָה. מָאן דַּעֲבַד הָכֵין לָא חֲשַׂשׂ. וּמַאן דַּעֲבַד הָכֵין לָא חֲשַׂשׂ

“Two priests ran away during the wars. One of them said, ‘I used to stand and sprinkle.’ The other said, ‘I used to walk and sprinkle.’ Rav Yudan said, ‘About this it is said: One who acts this way need not worry and one who acts that way need not worry’’’ (Talmud Yerushalmi, Eruvin 5:5).   

We continue with some more examples: 

6) b.Bava Batra 124a: 

אָמַר רַבָּה בַּר חָנָא אָמַר רַבִּי חִיָּיא: עָשָׂה כְּדִבְרֵי רַבִּי – עָשָׂה. כְּדִבְרֵי חֲכָמִים – עָשָׂה

“Rabbah bar Chanah said in the name of R. Chiya, ‘If one acts according to Rabbi he has acted [legitimately]; [If one acts] according to the sages he has acted [legitimately].’” 

The text continues:

אָמַר רָבָא: אָסוּר לַעֲשׂוֹת כְּדִבְרֵי רַבִּי, וְאִם עָשָׂה – עָשׂוּי. קָא סָבַר: מַטִּין אִיתְּמַר.

“Rava said, ‘One may not act according to Rabbi; but if he already did, then it was [legitimately] done.’ He thought it [the rule about Rabbi and his colleague] was said to incline [towards the sages, but not to definitively reject Rabbi]. 

Hidary explains: 

“The fact that Rava still validates Rabbi’s view post factum, even though he has decided that the halacha follows Rabbi’s opponent, suggests that Rava is not a theoretical monist but rather accepts more than one opinion as true. If he thought that Rabbi’s opinion had no theoretical truth value then he should not have allowed one of his rulings to stand” (Hidary 1990:246). 

7) b.Berachot 11a:

תָּנֵי רַב יְחֶזְקֵאל: עָשָׂה כְּדִבְרֵי בֵּית שַׁמַּאי — עָשָׂה, כְּדִבְרֵי בֵּית הִלֵּל — עָשָׂה

“Rav Yechezkel learnt: If one acts in accordance with the opinion of Beit Shammai he has acted [legitimately]; if he acts in accordance with the opinion of Beit Hillel he has acted [legitimately].” 

All these examples show that “many rabbis believed that in some cases there does exist more than one right answer” (Hidary 1990:255). 

Applications of this principle of legal pluralism today

What follows is a fascinating ruling from a contemporary Halachic authority, R. Eliezer Melamed, in his Peninei Halacha.[6] In a very interesting manner, he adopts some of the principles of legal pluralism that we have touched upon and applies them to the laws of cooking on Shabbat. 

According to Rashi, solid food that has cooled down, may be reheated on Shabbat by placing it on a warmer. This is based on the principle ein bishul achar bishul (there can be no cooking after cooking). So the ‘warming up,’ even if it gets very hot, is not considered cooking, because it’s a solid food that has already been cooked, and it can’t technically be cooked again. 

However, liquids (like coffee or soup), may not be heated up again as that would be considered to be cooking.

The reason for this distinction is that solid foods essentially taste the same once they have been cooked, regardless of whether they served are hot or cold. This is why they may be reheated because the second application of heat is not significant to their taste. 

The same may not be said for liquids where their temperature is an integral part of defining them as cooked. There is, according to Rashi, a fundamental difference between cold soup and hot soup, and the same is true of tea and coffee as well, as they are usually consumed hot. This is why, in Rashi’s view, one can only reheat solids but not liquids. 

Rambam, however, disagrees and claims that ein bishul achar bishul (there can be no cooking after cooking) applies not only to solids but to liquids as well. Thus, one may reheat liquids just like one may reheat solids. 

Now, Yemenite Jews follow Rambam’s rulings, so they will reheat tea and soup on Shabbat, even if they were kept in the refrigerator overnight. 

Ashkenazim, however, follow Rema (whose opinion is a compromise between the Rambam and Rashi − Rema fundamentally accepts the position of Rambam that ein bishul achar bishul applies to liquids as well, except that if a liquid has cooled down entirely, it is rabbinically forbidden to reheat it). 

So, if an Ashkenazi visits a Yemenite on Shabbat, he or she may eat soup and drink tea that was reheated – something they wouldn’t do at their own home! 

However, the same Ashkenazi may not ask a Yemenite to heat a liquid for him or her in their Ashkenazi home – unless the Yemenite heats it up him or herself. In such a case, the Ashkenazi host may then join the Yemenite guest in a bowl of reheated hot soup. 

This practical example from a contemporary Halachic source illustrates how, at least in principle, the notion of legal pluralism is upheld today.

Further reading

For more on R. Eliezer Melamed, see Kotzk Blog: 050) The Ethical Halachist

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[1] Hidary, R., 2010, Right Answers Revisited: Monism and Pluralism in the Talmud. Uploaded to Academia.edu.

[2] Hayes, c., 2008, ‘Legal Truth, Right Answers and Best Answers: Dworkin and the Rabbis’, Dine´ Israel, 25, 73-121.

[3] This is a quotation from Ecclesiastes 12:11.

[4] Kraemer, D., 1990, The Mind of the Talmud, Oxford University Press, Oxford, 172.

[5] Square brackets are mine.

[6] Peninei Halacha, Shabbat, 10:6.