Shiur #25: “The Way of the Majority”: Is the Torah Suited to Everyone?

  • Rav Chaim Navon

A.        The General Rule

 

Chapter thirty-four of Book III of the Guide is extremely short. Nevertheless, its content has given rise to considerable controversy, continuing to our own times. The Rambam introduces the chapter as follows:

 

It is also important to note that the Torah does not take into account exceptional circumstances; its laws are not adapted to rare instances. Whatever the Torah teaches, whether it be of an intellectual, a moral, or a practical character, is founded on that which is the general rule and not on that which is the exception: it ignores the injury that might be caused to a single person through a certain maxim or a certain Divine precept. For the Torah is a Divine institution.

 

The Rambam starts off by asserting that the Torah is intended for “standard,” regular people and situations, rather than unusual, exceptional individuals and instances. He then goes on to develop this idea in even bolder language:

 

We must consequently not be surprised when we find that the object of the Torah is not realized in each and every individual; there must naturally be people who will not be perfected by the instruction of the Torah, just as there are beings which do not receive from the specific forms in nature all that they require… It is impossible for things to be otherwise.

 

This is an astonishing, revolutionary assertion: there are people to whom the Torah is not ideally suited. “There must naturally be people who will not be perfected by the instruction of the Torah.” Why? Because the reality of our world is that it is impossible to set down laws in the Torah that would be suited to everyone. Therefore, the only alternative is to have a Torah that is suited to the general majority.

 

In fact, what the Rambam is saying here is that the Torah, too, has limitations. This may sound strange, but it is less surprising if we consider other aspects of the Rambam's philosophy, and their logical ramifications. After all, the Rambam does not hesitate to state that there are things that God cannot do. For example, in his discussion of the phenomenon of evil in the world (Book III, chapters 10, 12) he states that God could not create a material world in which there is no death. All of this arises from the same fundamental issue: in the Rambam's view, even God Himself is subject to the laws of logic.

 

That which is impossible has a permanent and constant property, which is not the result of some agent, and cannot in any way change, and consequently we do not ascribe to God the power of doing what is impossible. (III:15)[1]

 

This is by no means a universally accepted, self-evident truth. Descartes, for example, maintained that God is not limited even by the laws of logic. The Rambam, however, insists that God cannot create a four-sided triangle, and that this does not imply any limitation with regard to His powers: rather, owing to the laws of logic, the concept of “four-sided triangle” is simply an empty concept that has no meaning. Likewise, the concept of “material substance that does not decay” is devoid of meaning. And, in the same way, “a Torah that is suited to every individual” cannot exist. The Rambam draws an explicit comparison between the laws of nature and the laws of the Torah:

 

In Nature the various forces produce benefits which are general, but in some solitary cases they cause also injury.

 

This recalls the example cited by Aristotle (Physics, Book 2, chapter 8): rain is good and beneficial, but it may nevertheless cause damage to the threshing-floor and the produce of a particular individual. There is no avoiding this.

 

Here we might ask: If it is impossible to create a general system of law that is suited to every individual, of what benefit is the general law? Would it not be better for each individual to have his own special laws, suited to his particular characteristics? To this the Rambam responds:

 

The Divine guidance contained in the Torah must be certain and general, although it may be effective in some cases and ineffective in others. For if the Torah depended on the varying conditions of man, it would be imperfect in its totality, each precept being left indefinite. For this reason it would not be right to make the fundamental principles of the Torah dependent on a certain time or a certain place; rather, the statutes and the judgments must be definite, unconditional and general.

 

The Rambam explains that the Halakha cannot be limited to certain people, or certain times, places, or circumstances, because this would undermine the authority of the Torah in human consciousness. Upholding the same idea, the Rambam explains elsewhere why it is forbidden to introduce any change in the Torah:

 

God forbade increase and diminution [with regard to the laws]… for constant changes would tend to disturb the whole system of the Law, and would lead people to believe that the Torah is not of Divine origin. (III:41)[2]

 

H. Ben-Menachem proposes that had the Torah not set down in advance a very detailed system of law that draws distinctions between innumerable statuses and situations, people would dismiss vast sections of the Torah that have no direct relevance to themselves, and this would lead to disdain for Halakha as a whole.[3] For this reason, there is no choice but to formulate absolute rules that are suited to the majority of people, at most times, and in most places. The minority of exceptions must be ignored, for the sake of the integrity and authority of the whole.

 

Scholars of the Rambam are deeply divided over this issue. In this shiur we will review the positions of some of the main views. This will be somewhat of a departure from the general format of this series, since we will be addressing less attention to what the Rambam himself says, and more to the views of contemporary scholars of his work. The controversy here is an example of the intellectual debate that the Guide has aroused over the course of the centuries, continuing to our own times.

 

Rosenthal: Rambam vs. Aristotle

 

The modern debate surrounding chapter thirty-four was ignited by an article written by Prof. Eliezer Shimshon Rosenthal, in 1968. Its title, “Al 'Derekh Ha-rov' (Concerning the 'General Rule'),” became the conventional name used to refer to the controversy.[4] Rosenthal explains the Rambam's position here against the background of a similar idea expressed by Aristotle. In describing the difference between that which is “just,” (in the sense of “following the law”) and that which is “right and good,” or “fair,” Aristotle writes:

 

All law is universal, but about some things it is not possible to make a universal statement which shall be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error… When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission – to say what the legislator himself would have said had he been present, and would have put into his law if he had known… And this is the nature of the equitable: a correction of law where it is defective owing to its universality. (Nicomachean Ethics, Book 5, chapter 10)[5]

 

Aristotle, too, maintains that the law cannot cover every possible circumstance, and so it must be legislated with the general situation in mind. However, Aristotle adds an element that the Rambam does not: when a judge is faced with an exceptional case in which the implementation of the law, in its fixed form, will cause some injustice, the judge must set the letter of the law aside and find the proper solution. Elsewhere, Aristotle writes that fairness consists in “attending not to the word of the law, but rather to its intention” (or, “not to the letter of the law but to its spirit”) (Rhetoric, Book 1, chapter 13). Deviation from the formal requirement in the interests of fundamental moral considerations is referred to, in the philosophy of law, as “equity.” As noted, the Rambam makes no such provision. He agrees with Aristotle that laws are set down with the majority in mind, but in the context of Torah law he does not agree that a judge, confronted by exceptional or minority circumstances, must deviate from the written law.

 

In this regard Rosenthal refers to one of the Rambam's responsa. The Rambam is asked about the permissibility of listening to Arabic songs, and he responds:

 

It is well-known that all song and music are forbidden, even if unaccompanied by words … And the reason for this is quite clear: because the power of this desire needs to be restrained and held back… And we do not base our thinking on an exceptional individual, the likes of whom are few in number, who would be brought through this [song and music] to guarding his soul and sharpness of perception or submission to Divine commands, for the laws of the Torah were written for the majority, and those who are within normal range, for the Sages addressed the world as it is. (Responsa of the Rambam, Blau edition, siman 224)

 

In general, the Rambam asserts, listening to music is detrimental. It serves to arouse strong emotion, rather than sharpening the intellect. Even if some unusual individual may achieve some spiritual benefit through listening to music, this does not change the Halakha (which is geared to the general population) for that individual. This suggests that the individual in question must follow the general rule, contrary to Aristotle's thinking. This individual must pay a price – the “price of Torah” – for the sake of maintaining the integrity and validity of the Torah as the constitution of the Jewish people. Aristotle and the Rambam agree that the law cannot suit every person. However, while according to Aristotle the proper and appropriate solution must be found for each exceptional instance, the Rambam maintains that the general law, suited to the majority of people and the majority of circumstances, must always be upheld. As Rosenthal concludes:

 

Aristotle remains a philosopher even as he examines the deepest recesses of the law. The Rambam remains a Halakhist even as he ponders psychological ramifications. (Din Ve-yosher Be-torat Ha-mishpat shel Ha-Rambam, p. 200)

 

C.        Rosenberg: “Temporary Legislation”

 

Prof. Shalom Rosenberg disagrees with Rosenthal and argues that in the minority instances – those exceptional circumstances which the law never meant to refer to – even the Rambam would agree that the general law should not be applied as usual. In Rosenberg's view, this is the significance of the concept of “hora'at sha'ah” (“temporary legislation,” or “emergency measures”). The prophet is authorized to change the Halakha by means of a temporary measure:

 

If a prophet, whom we know to be a prophet, tells us to transgress any one of the commandments set forth in the Torah, or [to transgress] many commandments, whether they are major or minor matters, for some set time – it is obligatory to obey him… And in the same way, if all the prophets commanded transgressing, for some set time – it is obligatory to obey them. But if a prophet would say that the matter [of law in question] is permanently nullified – he is to be put to death by strangulation, for the Torah says, “To us and to our children, for all time” (Devarim 29:28). (“Laws of the Foundations of the Torah” 9:3)

 

The prophet may temporarily make a change in the written law. This, according to Rosenberg, represents a way of addressing the problems that may arise within a framework that follows “the general rule.” Indeed, the law is written in accordance with normal circumstances, but when there is an unusual, exceptional instance, it can be dealt with by means of a targeted “emergency measure.” The authority to change the Halakha by such measures is granted not only to the prophet, but also to the Sanhedrin:

 

Permission is at the same time given to the wise men, i.e., the Great Court (Sanhedrin) of every generation to make fences round the judgments of the Law for their protection… In the same manner the Sanhedrin has the power temporarily to dispense with some religious act prescribed in the Law, or to allow that which is forbidden, if exceptional circumstances and events require it; but none of the laws can be abrogated permanently, as has been explained by us in the Introduction to the Commentary on the Mishnah in treating of temporary legislation. (Guide, III:41)

 

In chapter thirty-four of Book III, the Rambam rejects the comparison between the Divine legislator and a doctor: “The laws cannot, like medicine, vary according to the different conditions of persons and times.” However, in the Mishneh Torah he adopts a very similar comparison, this time referring to a judge rather than a legislator:

 

If the court sees that temporarily it is necessary to nullify a positive commandment or violate a negative commandment in order to bring people at large back to the Jewish faith or to prevent many Jews from transgressing in other matters, they may do what is necessary at that time. To explain by analogy: Just like a doctor may amputate a person's hand or foot so that the person as a whole will live, so, too, at times, the court may rule to temporarily violate some of the commandments so that they will later keep all of them. (“Laws of Mamrim,” 2:4)

 

Many critics of Rosenberg have claimed that he confuses different spheres. Chaim Shein argues that the Rambam is talking only about criminal law – i.e., “public law,” rather than the sphere of the individual. Yitzchak Englard maintains that temporary legislation and emergency measures may also apply to the sphere of private law, but explains that in the Rambam's view an “emergency measure” is intended not to solve the problem of an exceptional case, but rather to deal with general social needs, as per the circumstances at the time. A “hora'at sha'ah,” Englard asserts, is a general enactment that applies to everyone at that time; it does not address the specific needs of individuals.

 

In response, Rosenberg argues that the Rambam adopts a similar measure in individual spheres, too, such as the laws of evidence in a legal conflict, where he awards the judge authority to adapt the law to the specific case at hand:

 

A judge may adjudicate cases involving monetary law based on factors that he is inclined to regard as true and concerning which he feels strongly in his heart are correct even though he does not have proof of the matters. Needless to say, that if he personally knows that a matter is true, he may judge the case according to his knowledge. (“Laws of Sanhedrin,” 24:1)[6]

 

The laws of evidence usually follow very well-defined, formal definitions. However, when a judge feels that the formal laws of evidence fail to access the truth, in a given situation, he must set the formal requirements aside and address the matter in a non-formal way – thereby adopting a sort of private “temporary measure.” (The Rambam does add that in our times, owing to the deterioration of the standards of the generations, judges must limit their considerations and decisions to the formal dimension only.)

 

In any event, Prof. Yaakov Levinger points out that the Rambam's use of the non-formalist principle is limited. He does not apply the principle to the matter of the actual conflict between the two parties, but only to types of evidence permissible. The judge cannot decide that X, while technically innocent of any wrongdoing, will be required to pay Y, out of some non-formal consideration. The special authority that the Rambam grants to the judge allows him to rely on his intuition and experience only in clarifying the reliability of the witnesses and the evidence.

 

Levinger adds further that in the Guide, the Rambam is not discussing laws governing inter-personal relations, but rather man-God relations – i.e., matters of religious ritual. In this area, he explains, the Rambam does indeed believe that a person may deviate from the general normative practice if it harms him. He relies on the letter cited by Rosenthal, in which the Rambam rules that there is no individual who is permitted to listen to music. Levinger notes that in the “Laws of the Foundations of the Torah” (7:4), the Rambam himself writes that the prophets achieve a state of prophecy through listening to music. Hence he concludes that the Rambam actually supports, as it were, deviation from the general framework of Halakha in the case of individuals to whom the framework is not suited – even though he goes to great lengths to conceal this view.

 

I believe that it is difficult to support such a far-reaching conclusion on the basis of one rather weak proof. Englard notes in this regard that the Rambam rules in his Mishneh Torah (“Laws of Fasts” 5:4), and also hints in his letter, that there is no prohibition on playing or singing songs with religious content; the prohibition applies only to profane songs. This being the case, there is no hint in the Rambam’s writings to any special license extended to the prophets. The prophets, who used music to help them achieve their state of prophecy, listened to songs of religious devotion, and since such music is permissible for anyone, there was no “breaking the boundaries of Halakha” involved.

 

I agree with Levinger that in the Guide, the Rambam is talking about religious, ritual laws rather than civil laws. However, my understanding is the opposite of his conclusion: concerning these laws, the Rambam states that a person must adhere to Halakha even if it does not meet his personal, particular spiritual needs. Rosenthal is certainly correct in raising, in this context, the issue of the “price of Torah” that is sometimes exacted from a servant of God. The Torah was given to Am Yisrael as a whole; it is not tailored to the problems, characteristics, and needs of some or other individual.

 

D.        Ben-Menachem: Legislating vs. Judging

 

H. Ben-Menachem offers criticism of the common denominator shared by Rosenthal and Rosenberg. He maintains that both scholars assume that underlying the Rambam's view is Aristotle's approach to the matter of fairness – i.e., the question of fundamental values vs. the dry, formal law. According to Ben-Menachem, what actually underlies the Rambam's view here is the view of Plato, as reflected in his discussion of a different issue. Plato claimed that there is no point in formulating general laws, since the instances of implementation are always specific and individualized, such that the judges will always be forced to deviate from the written law. Therefore, the best result will be obtained through the appointment of honest and wise judges who can be relied upon to judge every case at their own discretion.[7] Thus, while Aristotle addresses the problem of fairness in judgment, Plato deals with the problem of fairness in legislation.

 

According to Ben-Menachem, when the Rambam, in his Guide, rejects the possibility of the law being tailored to each individual, for then “each precept would be left indefinite,” he is referring to legislation, not judgment. In other words, the formulation of Halakha is general, but actual judgment may take equity into consideration and deviate from the formal law. This explains why, in the Guide, the Rambam rejects the model of the physician and his individually customized medicine, while in the Mishneh Torah he seems to adopt the very same model, as we have seen above and as noted by Rosenberg. The reason for this is that in the Guide, the Rambam focuses on the legislator; in the “Laws of Mamrim” he focuses on the judge.

 

Ben-Menachem finds support for his claim that when it comes to judgment the Rambam adopts the principle of equity and deviation from the formal law, in the Rambam's responsa. We will look at one responsum that Ben-Menachem brings as proof. The question concerns a get (writ of divorce) that was signed by witnesses, who are later discredited. What is then the status of such a witness?

 

In his Mishneh Torah, the Rambam writes:

 

Whenever a person is disqualified as a witness for committing a transgression, he is disqualified if two witnesses testify that he committed a transgression… When does the above apply? When the person committed a transgression that is universally known among the Jewish people to be a sin… Whenever it appears to the witnesses that the person committing the transgression knew that he was acting wickedly and transgressed deliberately, even though they did not warn him, he is not acceptable as a witness. (“Laws of Testimony,” 12:1)

 

Let us now see how the Rambam deals with a practical instance:

 

Question: Concerning a person who divorced his wife, and wrote her a get which was signed by two witnesses, and he handed it to her before these two witnesses. [The woman] waited the requisite period, and was then married to someone else, and bore him children. When the [first] husband saw this, he was seized with jealousy concerning his [former] wife, whom he had divorced and who was now married to someone else. He then went and had a document drawn up, with two upstanding witnesses, testifying that the witnesses to the get had been sinners, and were known still in the present to be violators of prohibitions and nullifiers of positive commandments… He wanted her to be forbidden to the other man, and this would render the children [born to the woman and her second husband] mamzerim. What shall be done in this matter, concerning the woman, the children, and the witnesses?...

 

Answer: … Likewise the woman: if what these [latter] witnesses say concerning the [first] witnesses is upheld, and they were warned… then these [original witnesses] are disqualified, and the get is disqualified, and the children are mamzerim. But if the upstanding [second] witnesses testify that they observed the [first] witnesses violating these prohibitions, but never warned them, even if the matter is known in a general sense, then the woman's first husband must write her a new get signed by these upstanding witnesses, and she remains with her [second] husband and is not divorced from him. (Responsa of the Rambam, siman 3)

 

What the Rambam is saying here is clearly something different from what he said in the Mishneh Torah. There, he ruled that a person who violates a well-known prohibition thereby becomes disqualified to give testimony, even if he was not previously warned. Here, in his response, the Rambam suggests that even violators of grave prohibitions cannot be disqualified as witnesses if they received no warning – even though it is clear to all that their actions are forbidden. Ben-Menachem explains that in this instance the Rambam deviates from the usual halakhic rule in order to solve the specific predicament of the woman. In other words, he adopts the principle of equity.

 

E.        Change vs. interpretation

 

S. Ettinger disagrees with Ben-Menachem's conclusion. In his view, there is no possibility of deviating from the fixed law just because the subject in question or his situation is in some way unusual. In an exceptional case the problem can be solved through a broadening of the halakha – but even here, there is no need to invoke “equity” in the sense of deviating from the legal norm, as Ben-Menachem suggests.

 

Prof. Zev Harvey arrives at a similar conclusion based on analysis of the Rambam's responsa: as a decisor in practical situations, the Rambam did take unique circumstances into account – leading not to a deviation from Halakha, but rather to a re-interpretation of it in light of those circumstances.

 

For instance, let us consider the responsum that Ben-Menachem cites, concerning the disqualification of the witnesses to the get. Ben-Menachem points out that the Mishneh Torah seems to suggest that there is no need for prior warning, concerning a sin committed by witnesses, in order to disqualify them – but the Rambam nevertheless invokes the need for warning as a criterion in the particular case in question, in order to help the woman. Harvey emphasizes that the Rambam does not state here that the details and circumstances of the particular case make it necessary to deviate from the law; rather, he arrives at a novel interpretation of the law, in order to solve this individual problem. The solution is achieved through interpretation of the law rather than setting it aside.[8] Harvey concludes his article as follows:

 

The Rambam's position on the matter of the generality of the law is fundamentally based on neither Plato nor Aristotle, but rather on his own rich legal experience. As a jurist and philosopher of law, he has a better understanding than Plato and Aristotle – who were not legalists – of the advantages of the generality of the law, and he knows from personal experience that even within the confines of the general laws, a wise and skilled judge can perform justice, break the staff of evil, and [in so doing] resemble God.[9]

 

Translated by Kaeren Fish

 


[1]  Similarly, in our chapter he writes: “That which is impossible always remains impossible and never changes.”

[2]  This implies that the Rambam recognizes the revolutionary nature of his position. He recognizes that even the Torah, the “constitution” drawn up by God Himself, is not suited to every circumstance. At the same time, he asserts that most people do not recognize this, and introducing changes in the Torah would lead people to think that the Torah is not a Divine law. In any event, attention should be paid to the fact that the question at the heart of chapter thirty-four is different from the one addressed in chapter forty-one: in the latter chapter, the Rambam is not discussing why the Torah sets down general rules, but rather why we do not have the authority to alter them in accordance with changing circumstances.

[3] The references in this shiur are to: H. Ben-Menachem and B. Lipschitz (eds.), Din Ve-yosher Be-torat Ha-mishpat shel Ha-Rambam, Jerusalem 5764. The citation above is from p. 217.

[4]  The expression “derekh ha-rov” (literally, “the way of the majority”) does not appear in chapter thirty-four itself, nor in any of the standard translations into Hebrew. It is a paraphrase of an expression that appears in the Rambam's responsa.

[7]  Scholars of Plato draw a distinction in this regard between Plato's view in his youth, and his view in his later years. In his Politics he does indeed express the above view, but in his Laws he retracts it. See Rosenthal's article in Din Ve-yosher, p. 119.

[8]  Some scholars have taken this approach further, ultimately resolving the Rambam's responsum here with his words in the Mishneh Torah. See the editor's comments on the Responsa of the Rambam.

[9]  From: Din Ve-yosher Be-torat Ha-mishpat shel Ha-Rambam, p. 271.