Can there be a Halachik consensus on Hashkafah? Part 1 - Testing Waters!

Matt at http://kankanchadash.blogspot.com/2007/07/no-psak-in-philosophy.html discusses whether there can be a Halchik decision in an argument on a matter of Aggadah or as he terms it philosophy. One of my favorite and most admired bloggers, R. Chaim B. of the http://divreichaim.blogspot.com argues and asks why not accept the Chachmei Mesora on something that we cannot verify ourselves. I believe this requires much deeper investigation. First let us go back to the source; Rambam in Pirush Hamishna who repeats this statement 3 times. As this will be a long subject, I will break it up into several posts.

In Sotah 3:3, the Mishna discusses whether it is possible that a guilty woman should not deteriorate immediately after drinking the waters. Ben Azai holds that it is possible for a guilty woman to have her sentence suspended for some time if she has learned Torah. He therefore holds that one must teach his daughter Torah so that in case she has to drink the waters and nothing happens for a while, she can assume that it is thanks to her learning! [This deserves a post on its own! Rambam has a quite novel way of reading this Mishna (see Rashi and Tosafot) and the consequences are fascinating. I will not digress here and leave this for another occasion]. Rabbi Shimon argues that it is impossible that a guilty woman is not punished immediately. If that were the case, the water test would be fallible and women who were innocent would be looked at with suspicion even if they came through unscathed. Rebbi says that although it may take some time, even those that have a good deed that delays death, it eventually comes and is traceable to the drinking of the waters.

Commenting on this argument Rambam says “I already told you, not only once[1], that if the Chachamim argue on a Hashkafah and an opinion that does not have an action as its goal, one cannot say that the Halacha is like one of the parties.”

Here we have the following situation. A woman knows that she is guilty. She is terrified when she is asked to drink the waters. She musters up the courage, closes her eyes and swallows the water expecting to never open them again. But lo and behold – nothing happened. She is elated and tells her cronies that this whole thing is a joke! This gets out and the rabbis have to deal with it to defend the practice and the deterrence effect. One can argue R. Shimon’s position that the woman had illusions or one can argue the Ben Azai way and say that death will eventually come. (Pretty safe bet – we all die and it is always earlier than we thought we should!). Rebbi says that the guilty woman will deteriorate slowly until she dies. The type of death will be such that one will connect it with the water drinking.

The argument is how to explain an observation. There are multiple choices and Rambam tells us that one cannot say the Halacha is like one of them. However in Hilchot Sotah chapter 3:20, Rambam quotes Rebbi!

[כ] סוטה שהיה לה זכות תלמוד תורה--אף על פי שאינה מצווה על תלמוד תורה--הרי זו תולה לה, ואינה מתה לשעתה; אלא נימוקת והולכת, וחולאים כבדים באין עליה עד שתמות אחר שנה או שתיים או שלוש, לפי זכותה--והיא מתה בצביית בטן, ובנפילת אברין

A Sotah that had the Zchut of Talmud Torah – although she is not commanded to learn Torah – her sentence is suspended and for the time being does not die.
She slowly deteriorates, she gets very sick until she dies in a year, two or three, according to her Zchut. She dies with a swollen belly and deteriorating lower body parts.

Let us put this Halacha in context. Rambam earlier (Halacha 16)describes the whole process and the effects. If the woman is innocent, nothing happens. If she is guilty, she immediately starts to fall apart with a specific symptom where her belly swells and her lower body parts deteriorate. That is the theory. In practice, not always did the expected outcome happen. The first explanation is that the husband is himself guilty of fornication. If he ever transgressed in his lifetime, the test will not work. In fact, (Halacha 18) if he insists on going through with the test, he is sinning greatly as he causes others to doubt the efficacy of the test. At some point in time, as straying husbands became common, the test was abolished. It had lost its deterrence. After all this, having put the burden on the husband and him being innocent, there still is the possibility that nothing happens to the guilty woman because she has the Zchut of Torah learning. Rambam saw the Mishna as giving enough loopholes to explain why we note that it does not always work as expected. To make that work, we need to put the onus on both – the husband and the wife. That way the deterrent remains. The whole concept of testing a Sotah is a deterrent to the Rambam. He chooses Rebbi’s explanation for explaining the times the results are not as expected. The connection to the act remains. (See Tosafot Yom Tov here for a similar understanding.)

To decide a Halacha there is a procedure. The Rabbis gather into a Sanhedrin and the question is put to them. They deliberate, vote and the majority rules. Rambam is telling us that this is only applicable to practical matters that involve actions. The ruling is enforceable and measurable. Where there is nothing more than explanations for observations, although these explanations strengthen the underlying act, they have no place in a Sanhedrin. One can therefore not enforce an opinion that has no practical applications. Does that mean that all such opinions are correct? I do not think so but I will leave that to our final discussion after we have analyzed the other two cases where Rambam repeats this statement.

To be continued.


Shabbat Shalom



[1] BTW this is the first time he tells us this in Pirush Hamishna which is his first major work