Why We Disagree

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by R. Gil Student

I. Tradition and Disagreement

The Talmud is notoriously full of disagreements. The rabbis seem to debate every minor issue, often with little practical difference. This should not be the case. The rabbis received a tradition from Sinai, learning the laws from their teachers who served as chains in the transmission from Moshe. How did so much disagreement arise?

Before we begin discussing this, we should take care not to exaggerate the claim. The rabbis agree on most things. No one disputes the obligation to recite Shema, just the exact times when the obligation begins and ends. Our texts focus on areas of disagreement because that is where we have the most to discuss.

II. Philosophical Writings

In describing the elusive history of Jewish philosophy, Rambam explains why it was never put into writing like the Bible. He writes (Moreh Nevukhim 1:71, Pines translation):

”You already know that even the legalistic science of law was not put down in writing in the olden times because of the precept, which is widely known in the nation: ‘Words that I have communicated to you orally, you are not allowed to put down in writing.’ This precept shows extreme wisdom with regard to the Law. For it was meant to prevent what has ultimately come about in this respect: I mean the multiplicity of opinions, the variety of schools, the confusions occurring in the expression of what is put down in writing, the negligence that accompanies what is written down, the divisions of the people, who are separated into sects, and the production of confusion with regard to actions. All these matters should be within the authority of the Great Court of Law, as we have made clear in our juridical compilations and as the text of the Torah shows. Now if there was insistence that the legalistic science of law should not, in view of the harm that would be caused by such a procedure, be perpetuated in a written compilation accessible to all the people, all the more could none of the mysteries of the Torah [philosophy] have been set down in writing and be made accessible to the people. On the contrary, they were transmitted by a few men belonging to the elite to a few of the same kind…”

Philosophy remained orally transmitted among the intellectual class for the same reasons as the Oral Torah, only moreso. Because of the inherent ambiguity of the written word, publication generates confusion, disagreement and communal division. To prevent that fate, Jewish philosophy was restricted to select individuals who studied directly from masters.

III. Talmud and Disagreement

However, this explanation raises questions about the Oral Torah, the law. If oral transmission prevents misunderstanding and disagreement, why is the Oral Torah full of disagreements? The Gemara (Shabbos 15a) says that Hillel and Shammai disagreed on three issues (listed in the first chapter of Eduyos). The Mishnah and Gemara (Chagigah 16a-b) says that five generations of partners/leaders (zugos), before Hillel and Shammai, debated whether to lean (perform semikhah) on animal sacrifices on the holiday. These do not constitute an overwhelming number of disagreements — in contrast to later generations — but they raise a question for the following text.

The Talmud (Sanhedrin 87b) says that originally there were no halakhic disagreements. If people disagreed or had questions, they went to increasingly higher courts until the issues were resolved. Halakhic disagreements began with the students of Shammai and Hillel, who failed to serve their teachers sufficiently. If so, why did Hillel and Shammai — and previous generations — disagree in specific cases?

IV. Irresolvable Disagreement

Rav Tzvi (Maharatz) Chajes (Mishpat Ha-Hora’ah, ch. 1) explains that disagreement is natural about anything that requires judgment, e.g. cannot be proven scientifically. God recognized this and provided a mechanism to resolve differences — a court system to issue decisions. Disagreements always existed but not ongoing disagreements, because the Great Court (Sanhedrin) in the Temple decided between the competing views.

However, Maharatz Chajes (ibid., ch. 8) continues, the Sanhedrin can only decide if all the great scholars sit together to debate the issue and the majority responds to all of the minority’s arguments. Historically, beginning a few generations before Hillel and Shammai, the Sadducees persecuted the sages and forced some into hiding. This prevented all the great scholars from joining the Sanhedrin’s debates. As long as the scholars serves their masters faithfully, i.e. succeeded in their studies, there were few issues of debate. After Hillel and Shammai, the quality of students declined and disagreements grew.

Rav David Tzvi Hoffmann (Ha-Mishnah Ha-Rishonah, p. 52) distinguishes between types of disagreements. If rabbis disagreed based on logical arguments, the Sanhedrin could resolve the dispute. However, if they disagreed on the details of a transmitted teaching — what a sage of a previous generation said — then they could not follow a contemporary court against what they believed was their tradition. When the students of Hillel and Shammai failed to serve their masters properly, they occasionally confused some of the details of the tradition they had received. The Sanhedrin could not resolve those disagreements.

V. Philosophy and Disagreement

As we saw above, according to Rambam, verbally transmitted truths are free from disagreement. Yet we see that the sages disagreed about details of the Oral Torah because disagreement is natural — even about truths verbally transmitted. Rambam even compares philosophy to the Oral Torah, arguing that neither could be written so as to prevent disagreements. Yet the Oral Torah itself was subject to disagreements, which the Sanhedrin had to resolve. What does Rambam mean?

Perhaps he meant that the Sanhedrin can decide on matters of practice, which reduced the disagreements on law. But if so, recording the Oral Torah in writing should never have been forbidden. Or maybe Rambam concedes that even orally transmitted ideas are subject to disagreement but much less so than written ideas. The few disagreements about the Oral Torah in the earliest years would have been much greater had the law been written down.

VI. Restricted Admission

However, I suspect that the answer lies in the last sentence of the large quote above: “On the contrary, they were transmitted by a few men belonging to the elite to a few of the same kind…” In Rambam’s understanding of history, while Torah was restricted to the religiously devout, philosophy was even further restricted to uniquely qualified individuals.

The Mishnah (Chagigah 2:1) says that the Creation may only be discussed in private. Rambam (Commentary, ad loc.) believes this refers to the science of philosophy. Similarly, in his legal code (Mishneh Torah, Hilkhos Yesodei Ha-Torah 2:12), Rambam writes that philosophy is severely restricted — it may only be taught to top students on an individual level. In contrast, Rambam (ibid., Hilkhos Talmud Torah 4:1) says that we may not teach Torah only to someone who follows a wrong path (i.e. sins). Rather, we must first return him to the proper path and then teach him Torah.

Because teachers of philosophy address so few students and with so personal a connection, they could avoid the ambiguities inherent in verbal instruction. Only when their teachings are put into writing, severing the personal connection, the transmission runs into the challenges of confusion and multiple readings. In contrast, law is taught in large groups encompassing students of varying abilities. Verbal transmission runs into greater challenges in such settings, leading to disagreements on interpretation.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link of New Jersey, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student recently served on the Executive Committee of the Rabbinical Council of America and currently serves as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Board of Jewish Action magazine and the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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