Bava Basra 31
Our Gemara on amud aleph discusses the legal disposition of two sets of witnesses who cancel each other out by, essentially, mutually discrediting the other’s testimony. The reasoning is as follows: Since at least one of them must be lying, then due to the conservative nature of law, we cast a shadow of doubt on the legitimacy of both testimonies.
Malbim (Bamidbar 16:28) uses this legal distinction to explain Moshe’s atypical response to Korach’s rebellion. Moshe’s usual stance was to pray for the sinners, even when he had scoffers who doubted his leadership and authority or, literally, the direction the Jewish people were heading. But the Korach rebellion went beyond the insubordination and disobedience of the other insurrections – this one challenged the validity of Moshe’s revelation at Mount Sinai. Malbim argued this had a more undermining effect than previous uprisings amongst the people.
Until now, there was valid uncontested testimony of an entire nation witnessing the revelation of the Torah on Mount Sinai. But now, Korach and company were making a contradictory attestation – that perhaps (G-d forbid!) Moshe had fabricated parts of the Torah. Moshe’s prior testimony was potentially invalidated by Korach and company’s contradictory testimony. This is why Moshe was insistent that Hashem show them no mercy and produce a unique and miraculous action to re-establish Moshe’s legitimacy as prophet (ibid. 29-30):
And Moses said, “By this you shall know that it was Hashem who sent me to do all these things; that they are not of my own devising:
If these people’s death is that of all humankind, if their lot is humankind’s common fate, it was not Hashem who sent me.
But if Hashem brings about something unheard of, so that the ground opens its mouth and swallows them up with all that belongs to them, and they go down alive into She’ol, you shall know that those involved have spurned Hashem.
This idea that a tradition of an entire nation who witnessed an event offers incontrovertible evidence of its validity is also known as the Kuzari Principle. The Kuzari argued that other religions rely on a prophet who brought back word from G-d, at best with a miraculous sign and witnessed by a local group. However, the Jewish tradition has the audacity to assert that an entire nation simultaneously witnessed a miraculous event. Surely this constitutes compelling evidence, as wouldn’t the people of the time object to the bizarre claims of the prophet? (See Kuzari, Book 1:9-80. But actually, I believe this proof was first articulated by Rav Saadia Gaon in Emunos V’Deios, Book 3:4-5.)
To be intellectually honest, the proof never sat so well with me, as modern historical analysis has argued with respect to other groups and tribal histories that a legend can grow gradually over time. We can argue that the legend started with a core story and then, out of national or religious pride, continued to become grander and more embellished. This is a legitimate argument, knowing how groups of people behave and stories evolve.
Before you call me an apikores, no proof is good if it isn’t subject to honest evaluation and criticism. In the field of Jewish philosophy, the Rambam, Chovos Halevavos, Rav Saadiah, and Sefer Ha’ikkarim each robustly debate and critique various religious proofs, holding them to the highest logical standards and rejecting those that fall short. Furthermore, the Malbim’s account we just saw actually describes Korach undermining the Kuzari Principle. Granted, Moshe’s legitimacy was re-established via the new miracle of the hole in the earth which swallowed Korach and his men, but it did not necessarily show that the public witnessing of Mount Sinai was uncontested, since indeed Korach did successfully object.
Notably, the recorded response wasn’t condemnation from the other people, saying his claims were absurd. Rather, Moshe had to produce a new miracle to prove his point. This suggests that neither Moshe nor the Jewish people were much swayed by the strength of the Kuzari Principle. Where were those Jews who objected to Korach, saying, “But we all saw it and we all were there!?” I should note that all of this is only according to Malbim’s account of Korach’s claims. A pashut peshat interpretation of Korach’s claims does not undermine the Kuzari Principle because Korach was merely arguing why Moshe and Aharon had to be the leaders, not outright rejecting the Sinai Revelation.
In the final analysis, we can still recognize that the Jewish tradition of a mass revelation on that scale seems to be unique in religion, and I think it is a compelling argument, but as we have seen, not necessarily a foolproof one. However, a refutation of a proof is not a refutation of a fact. One can still believe in the truth of the Torah for all kinds of reasons, including a tradition, personal feeling of its rightness, and a collection of numerous persuasive arguments, without agreeing to proofs that might not seem as compelling over the sands of time.
Judicial and Rabbinic Fallibility and Infallibility
Bava Basra 32
Our Gemara on amud aleph discusses certain situations where the rabbis of the Bais Din do not overturn a ruling when later evidence and new doubts arise over the original testimony. Simply put, once there is a verdict, the burden of proof to overturn the evidence is much higher. After a legal matter was decided, the “greater good” value of preserving the courts’ popular authority trumps the need to review prior evidence. This is known as Zilusa de bei Dinah, literally, “cheapening the House of Law.”
Maskil L’Dovid (Devarim 19:19) uses this concept to help explain what, on the surface, seems to be an irrational Torah law. Based on an inference from the verse (ibid.), the Gemara rules (Makkos 5b):
If the conspiring witnesses have not yet killed the accused with their testimony, they are executed, but if they killed the accused with their testimony they are not executed.
This is odd. The perpetrators who succeed are not punished, while those who attempt a crime and are thwarted are executed? Some try to explain the logic of this law as follows: Once a verdict is followed through, we presume that this was ultimately the will of G-d. Surely, G-d would not allow such a travesty to occur when the judges were not intellectually lazy and acted in good faith. It must be that the so-called innocent victim of justice must have secretly committed other crimes and was therefore deserving of his fate.
Maskil L’Dovid does not consider that explanation valid because there is a well-known theological principle that although Hashem miraculously prevents the righteous from inadvertently sinning, this is only in regard to ingesting non-kosher food because that also defiles the body and soul even if accidentally ingested. Indeed, Tosafos (Chullin 5b, “Tzaddikim”) proves this distinction and actually cites a case from the Talmud where a great sage incorrectly issued a death sentence in his court. Therefore, Maskil L’Dovid argues that the reason the testimony is not overturned after the death sentence is executed is so as not to disgrace the court, along with an assumption that this was G-d’s will.
Regardless, let us consider the implications of the first argument – that once due diligence is made, the outcome still represents G-d’s will. Such an idea offers an interesting life lesson on the Torah’s perspective on what we consider truth. If one is righteous, acting in good faith and making efforts to analyze all the facts, the ultimate action might be the will of G-d, even when it was under false pretenses.
This kind of argument is also similarly applied in other theological/legal situations. For example, Rav Dessler holds (Michtav Mi–Eliyahu, IV: p. 355) that even when the Sages made a ruling explicitly based on their own scientific evidence which appears to be incorrect according to our knowledge, the halacha remains valid. Rav Dessler says we assume that either they had a tradition that the halacha was true regardless, and the Sages just offered additional evidence to support the tradition, similar to the Talmudic practice of using an asmachta verse to support an existing tradition, or we just assume it was G-d’s will anyhow.
Some famous examples of this are that the Sages maintained that a cat has venom injectors in its nails, causing its scratches to render an animal a treifah (Chulin 52), or that certain insects are kosher as they are not derived from sexual reproduction but rather arise spontaneously (Shabbos 107b.) Rav Glasner, in his introduction to Dor Revi’i on Chullin is more explicit, stating that even if we know the Sages made a scientific error, the nature of halacha is that a rule of the Sanhedrin becomes binding by the Torah, no matter the reason. The Torah law remains in effect until such a time as another Sanhedrin would choose to vote and issue a new ruling. But what do we do when we no longer have a Sanhedrin?
Rav Kook (Shemoneh Kevatzim 2:30) uses this argument to theologically explain certain de facto historical situations where erroneous practices become accepted and the apparent customary practice. He states:
At times, when there is a need to disregard words of Torah but there is no one in the generation who can show the way, the matter comes about by means of a disruption. At any rate, it is better for the world that such a matter comes about by means of an error. In this inheres the principle, “Better that people [do wrong] in error and not with purposeful intent” (Beitzah 30b). Only when prophecy is present in [the nation of] Israel is it possible to institute such a matter – by means of a temporary injunction. Then it is done openly, with permission and as a godly command. But in consequence of the sealing of the light of prophecy, this rectification come about by means of a [longlasting] disruption that, although it dismays the heart from the aspect of its outer being, causes it to rejoice from the aspect of its inner being.
Rav Kook holds that in modern times, without a Sanhedrin, the collective unconscious wisdom of the Jewish people can channel G-d’s will, and this explains how certain customs and sensitivities seem to evolve in halacha without actual rabbinic approval.
