The Study of Talmud as Understood and Practiced by the Greatest Medieval Scholars

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There are three different parts to Torah study, as the Gemara states: “A person should

split up his learning: one third Bible, one third Mishnah, one third Talmud.”i This paper will

focus on how the nature of this “third part” of Torah study, Talmud, was understood by the

greatest Rishonim. To understand their approach, it is first necessary to briefly review the

development of Talmud until that time.

The Nature of the Oral Torah and Talmud Study

Originally, the only written texts the Jews used were the 24 books of Tanach, as there

was a prohibition on writing down any part of the Oral Torah. As the Gemara states:ii

לך כתוב+ ד"ל שמות: +כתיב, לקיש בן שמעון דרבי מתורגמניה נחמני בר יהודה רבי דרש

דברים? כיצד הא, האלה הדברים פ"ע כי+ ד"ל שמות: +וכתיב, האלה הדברים את

.בכתב לאומרן רשאי אתה אי פה שבעל דברים, פה על לאומרן רשאי אתה אי שבכתב

. הלכות כותב אתה ואי, כותב אתה אלה - אלה: תנא ישמעאל רבי דבי

This was considered the ideal way to learn Torahiii and was practiced for many centuries.

Eventually, due to persecutions and hardships, the Oral Law came in danger of being forgotten

and it became necessary to write part of it down. Rabbi Yehuda haNasi compiled the 6-order

work of the Mishnah. However, the oral nature was not abandoned entirely. The Mishnah and

beraitot continued to be recited mostly from memory.iv

Similarly, after the Talmud was written down, people continued to learn primarily in an

oral manner.v Many students in the Geonic era did not learn from a written text of the Talmud,

but recited it orally. Perhaps their focus was less on analyzing and comparing the Gemarot from

the outside, and more on partaking in the Talmudic process itself.

Eventually, the majority of Jews left Babylonia and the era of the Geonim ended. The

oral nature of Talmud could no longer be maintained in the far-flung lands in which the Jews

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found themselves. Different schools of learning developed their own approaches to Talmud

study. This paper will examine how the Rambam, Tosafot and Ramban viewed the Mitzvah of

Talmud. Their views on this subject can be seen both in their discussions of the mitzvah and in

the way they themselves learned.

Talmud According to Rambam

The Rambam states that people learned the Oral Torah in the same manner during the

time the Gemara was compiled as they did right after the time of Moses:

"אלא מה שיעשה יהושע ופינחס בעניני העיון והדין הוא מה שיעשה רבינא ורב אשי"

Just as Joshua and Pinehas studied in matters of analysis and law, so did Ravina

and R. Ashi (the last of the Amoraim).”vi

He does not distinguish between before and after the Mishnah was written down; the

basic nature of Talmud remained unchanged. Similarly, when describing the mitzvah for his own

post-Talmudic time, the fundamental mitzvah remains the same:

ושליש יביןvii וחייב לשלש את זמן למידתו, שליש בתורה שבכתב, ושליש בתורה שבעל פה

וישכיל אחרית דבר מראשיתו ויוציא דבר מדבר וידמה דבר לדבר ויבין במדות שהתורה

נדרשת בהן עד שידע היאך הוא עיקר המדות והיאך יוציא האסור והמותר וכיוצא בהן

.וענין זה הוא הנקרא גמרא, מדברים שלמד מפי השמועה

“A person is obligated to divide his study time in three: one third should be

devoted to the Written Law; one third to the Oral Law; and one third to

understanding and comprehend the ultimate derivation of a concept from its roots,

inferring one concept from another and comparing concepts, understanding [the

Torah] based on the principles of Biblical exegesis, until one appreciates the

essence of those principles and how the prohibitions and the other decisions

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which one received according to the oral tradition can be derived using them. The

latter topic is called Talmud.”viii

This definition of Talmud seems to describe the way the people would have learned before the

Oral Torah was written down, yet Rambam does not feel that a new definition is needed for his

time.

The nature of the Mitzvah always remains the same – focused on the primary source, the

Written Torah, and on understanding and analyzing it based on the oral traditions. Rambam does

not say that the mitzvah of Talmud consists of analyzing earlier generations’ statements. In fact,

Rambam attacks the blind acceptance of intermediary sources:

“Such is the mentality of even the elect of our times that they do not test the

veracity of an opinion upon the merit of its own content but upon its agreement

with the words of some preceding authority, without troubling to examine[i.e

evaluate] that preceding source itself.”ix x

Indeed, Rambam had no compunctions about arguing with the statements and rulings of

the Geonim. However, the authority of the Talmud is a more complex issue. The Talmud itself is

not exactly an intermediary source; in a way, it is more like the traditions that earlier generations

had passed down orally.xi Yet, this does not mean that the Talmud’s conclusions are the final

word on every matter. Since Rambam views the fundamental mitzvah of learning Talmud as

being focused on understanding the Divine word above any intermediary source, he sometimes

even breaks with the apparent conclusion of the Talmud. He views Talmud study for us as

partaking in the same process the Talmud did, granting us much authority in the halakhic

process. For instance, Rambam extensively relies upon the Tosefta, the Talmud Yerushalmi, and

even the Midrashei Halacha. He sometimes rules in accordance with a passage in these sources

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over an apparently conflicting passage in the Bavli, and may rely on his own analysis to decide

whom to pasken like.xii Herbet Davidson discusses many examples where the Rambam seems to

rule like the Yerushalmi.xiii xiv At times, the Rambam even seems to focus more on the primary

source in a passage than the explanation of the Talmud Bavli itself (though normally without

contradicting the Bavli).xv xvi In addition, there are many places where Rambam reads the

Mishnah differently than the Gemara did, and rules accordingly.xvii Perhaps the clearest example

of the Rambam’s independent focus on the primary sources is the way the Rambam darshens

pesukim. He was often willing to cite different pesukim than the Gemara did,xviii and sometimes

may even invent his own derashot.xix These examples demonstrate his bold derech, and are in

accordance with his view of Talmud.

What is the goal of the study of this study of the primary sources? Rambam explained the

goal was to know how all the rulings of “ permitted” and “forbidden” which one learned from

the shemuah, or received traditions, are derived from the Torah. This will let one understand why

the halachah is that way, and will allow the person to apply it to other cases. But this is the main

purpose of Talmud – to get a final understanding of the halacha.xx xxi

Even the Talmud Bavli is only a means toward understanding the fundamental

components of Torah she-bi-ketav and Torah she-be-al peh, not an end unto itself. And since the

halakhot themselves are fundamentally oral in nature, people should not be bound to specific

texts to be able to learn them. Thus, Rambam wrote two important works, the Perush ha-

Mishnayot and the Mishneh Torah, which provided alternatives to the Talmud as a means of

acquiring halakhic knowledge.xxii These works demonstrate Rambam’s approach of focusing on

the ideas themselves and his emphasis on the final halacha.

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Another aspect of the Rambam’s understanding of Talmud is its broad scope. Talmud is

separated from a text, the ideas are what count. Therefore, even non-halachik matter can be

included in the Mitzvah of Talmud. Rambam considers the esoteric teachings all to be part of

Talmud. As Twersky has explained, Rambam considered philosophy to be an integral part of

Talmud.xxiii He shows that Rambam even considered hokmah is synonymous with Torah. This is

because the truth of the ideas is what counts.

In fact, in these areas, the Talmud has less authority than in halachik matters. The

Rambam often seems willing to go against various aggadic statements of the Gemara and clearly

does not consider many aggadot to be binding. Rambam considers these domains to be ones

where a person has even greater latitude to think on his own, for they are not as dependent on

tradition.xxiv

Within these matters, one again sees Rambam’s focus on the primary idea above all else.

As the Rambam famously said, “You must accept the truth from whatever source it comes”.

Talmud According to Rashi & the Ba’alei Tosafot

Other Rishonim understood the mitzvah of Talmud differently than the Rambam. This

can be seen in the very way Rashi defines the original Mitzva. He explains the nature of Talmud

that the Tannaim studied as follows:

הסתומים הראשונים בדברי מדקדקים אחרונים התנאים שהיו, סברא היא זו - תלמוד

התנאים דברי שפירשו התנאים אחר האמוראים שעשו כמו, טעם בהן וליתן לפרשם

.תלמוד נקרא התנאים שבימי דיוק ואותו, גמרא בהן וקבעו שלפניהן

“Talmud”xxv – this is sevara (reasoning), that the later Tannaim would be

medayyek (infer/analyze) the difficult words of the early ones to explain them and

give reasons, just as the Amoraim after the Tannaim explained the words of the

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Tannaim before them and established the Gemara; that diyyuk (analysis) in the

days of the Tannaim was called “Talmud.”xxvi

Like Rambam, Rashi also sees the basic nature of Talmud as staying constant even after the

writing of the Mishnah. Yet Rashi defines the mitzvah very differently. Instead of being focused

on primary sources, it seems that the fundamental mitzvah of Talmud is to analyze and compare

the words of the previous period of scholars. One could even suggest that the primary sources are

not the main basis for halacha.xxvii

The Ba’alei ha-Tosafot seem to be following this understanding of Talmud in the very

way that they learned Gemara. They developed new ways in the study of Gemara, comparing

various Talmudic passages to each other and trying to resolve contradictions and explain

differences. They analyzed the Talmud in a way similar to the way the scholars of the Talmud

analyzed the Mishnah.xxviii

This approach to Talmud was novel. The Geonim did not compare different passages of

the Talmud as extensively as the Ba’alei ha-Tosafot did since they partook in its own analyses.

The Ba’alei ha-Tosafot moved the focus of analysis one step further away from the original

biblical source, from working within the Talmudic process to analyzing the Talmud from the

“outside”. This shift may have caused them to lessen the importance of studying the primary

biblical sources. While the Talmud states one should divide his learning between Mikra,

Mishnah and Talmud, Rabbeinu Tam comments:

ממה עצמנו פוטרין אנו שלנו דבתלמוד תם רבינו פירש' - וכו ובמשנה במקרא בלולה

שליש במקרא שליש שנותיו אדם ישלש לעולם.( יט דף ג"ע מסכת )חכמים שאמרו

איזהו במשנת ושונים התמיד פרשת יום בכל קוראים אנו כן פ"אע. ס"בש שליש במשנה

'וכו מדות עשרה בשלש אומר ישמעאל רבי וגורסין מקומן

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“With our Talmud (Babylonian) we exempt ourselves from what our Sages said

“A person should split up his learning: one third Bible, one third Mishna, one

third Talmud’”xxix

According to Tosafot, the study of Talmud can possibly replace all of Talmud Torah. This is

clearly very different from Rambam’s focus on interpreting the written Torah itself.

Tosafot also did not emphasize final conclusions. They did not view the study of Talmud

as being focused on getting the final halahca, but rather in analyzing different views. While

Rambam wrote a work that consisted just of the final halahca, the work of Tosafot consists of

questions and answers on various views in the Gemara. While halachos may emerge from such

study, this does not seem to be their main emphasis.xxx

In fact, sometimes practical Halachik matters have a very different role in Tosafot than in

the Rambam or other Rishonim from Sephard. When the simple reading of a Gemara appears at

odds with the common practice of the people, Tosafot often try to defend common practice. They

re-interpret the Gemara to fit with practice, even if this sometimes leads to a difficult

interpretation.xxxi How could they do this? The common practice was the way the people had

been acting, assumedly for generations, so Tosafot feels it must be justifiable. This fits with their

general approach of emphasizing tradition over the primary sources. Rambam did not feel the

need to defend common practice. The primary sources take priority over the customs of the

people.

Talmud According to the Ramban

The Ramban lived in 13th century Spain, which had begun to be influenced by the

Tosafist style of learning. In the Ramban’s words:

וחכמי הצרפתים אספו רובן אל עמן, הן המורים, הן המלמדים, הן המגלים לנו כל תעלומות כו

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“They are the guides, they are the teachers, they reveal to us the hidden”xxxii

Yet Ramban did not completely adopt the Tosafist approach. In many ways, he combined it with

the traditions of Spanish learning. Tchernowitz summarizes the derech of the Ramban:

The first of the elaborators (מרחיבים), who went in the middle between the ba’alei

halachot pesukot (of the Rambam style) and the Analyzers (מפלפלים), the ba-alei

Tosafot” xxxiii

While his style of learning may have been in-between Tosafot and the Rambam, Ramban placed

a greater emphasis on tradition than Tosafot. This emphasis shaped the way Ramban learned, and

helped to strengthen a style of Talmud that was different than that of Rambam.

Ramban stressed the authority and truth of tradition in many ways, and this outlook

permeates every work that he wrote. His wrote the Sefer haMitzvot to defend the Behag from the

Rambam’s attacks. As he states in the introduction, defending the earlier scholars was his life’s

goal, for the they were our teachers and carriers of tradition:

אמר משה בר נחמן ז"ל מנעורי גדלני כאב ומבטן אמי אנחנה וגם עד זקנה ושיבה לא אניחנה, במדתי

, ללמד זכות על הראשונים ולפרש דבריהחזקתי ולא אזניחנה, כי לב כל נבון יקחנה וחכם באחור ישבחנה

. כי הם לנו בלמוד התלמוד פנה ועמוד, הם אשר הורונו ולמדונו, הם שהעמידונו, על דרכי התורההגאונים

ושבילם, ומהם שאלנו לנתיבות עולם, אי זה דרך הטובה ללכת בה...

He was their student and would establish the truth of their words without bias:

עד... בינותי בספרים אשר חברו, הקשבתי ואשמע לא כן ידברו. ורוח בטני הציקתני וצדקתו היא סמכתני,

והנני עם חשקי וחפצי להיות לראשונים תלמיד, אשר החזרתי התורה לאכסניא שלה ונבנתה על תלה...

, לעשות אותם לצוארי רביד ועל ידי צמיד, לא אהיה להם חמור נושא ספריםלקיים דבריהם ולהעמיד

תמיד. אבחר דרכם ואדע ערכם. אך באשר לא יכילו רעיוני אדון לפניהם בקרקע אשפוט למראה עיני.

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ובהלכה ברורה לא אשא פנים בתורה. כי י"י יתן חכמה בכל הזמנים ובכל הימים. לא ימנע טוב להולכים

בתמים:

He also wrote the “Milchamos HaShem” to defend the Rif from the attacks of the Behag. In the

introduction the Ramban praises the Rif even more than the Behag. While he frequently did not

rule like the Behag in his commentary on the Sefer haMitzvos, here he feels the Rif is almost

always right. He criticizes the Ba’al Ha’maor for arguing with the Rif and says that we should

follow the Rif, as per chazal’s rule to pasken like the greater source, especially since the Rif was

earlier. These citations all demonstrate the Ramban’s great emphasis on defending tradition.

Ramban was sometimes willing to argue with earlier post-Talmudic opinions, but his

approach to tradition was very different than the Rambam’s. Rambam did not view the Geonic

works as something necessary to defend. He was focused on the original truth. Rambam

emphasized it was the truth that mattered, not who made the statement. Ramban believed that

tradition did matter. While the Geonic works may not have had the authority of the Gemara

itself, they did become part of the mesorah of Talmudic learning. The Ramban considered the

earlier generations’ works as being worthy of having entire commentaries written to defend

them.

This approach to tradition may have influenced Ramban’s understanding of derashot

chazal. David Novakxxxiv argues that Ramban’s approach to tradition is what led him to consider

all Mitzvot to be of fundamentally d’Orayta nature. He contrasts this with Rambam’s approach,

which emphasized the role of independent reason in halacha. While Rambam considered all

derashot to be “divrei sofrim”, things derived by the sages (that were not on the same level as

D’oraytaxxxv), Ramban grants more strength to chazal’s derivations.

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In non-halachik areas, Ramban also emphasized tradition. In hashkafic issues, Ramban

defends the traditional, more literal understanding of many texts from the allegorical

interpretations of Rambam. He attacks the Rambam in many places for breaking with the

traditional understanding of an issue. Where Rambam, in many places, followed reasonxxxvi &

Aristotle, Ramban followed his tradition and the simpler understanding of Chazal. xxxvii

In his commentary on the Torah, Ramban defended the traditions of chazal. Ramban

frequently attacks Ibn Ezra for arguing against chazal’s interpretations of pesukim. Yet, Ramban

did not take as strong a position as the Tosafists in his understanding of the authority of

aggadata. He sometimes differed with chazal’s interpretations of pesukim, and even allowed

non-traditional sources to influence his commentary.xxxviii In his approach to agadata, Ramban

again took a moderate approach between that of the Rambam a Tosafot. Septimus discusses

many different statements of the Ramban, and demonstrates that he took a nuanced approach.xxxix

In other areas, Ramban followed the Spanish way of learning over that of Tosafot. While

some Ba’alei Tosafot may have not emphasized the study of Tanach, Ramban wrote his most

famous work on the Pentateuch. Like Rambam, he also believed in a broad learning in many

areas.xl He was both a leader in Talmud, in Peshat, Derash and in Kabbalah. xli While Rambam

felt the secretes of “ma-aseh merkava” and “ma-aseh b’reishit” lied in metaphysics, Ramban

considered the truth to be found in Kabbalah. He felt that Kabbalah were the secret traditions that

went back to chazal.

Ramban also may have placed a greater emphasis on the final halacha. He wrote a Rif-

style work on the passages in Gemara that the Rif omittedxlii, and wrote a halachik work on

avelut. His commentary on Gemara does not discuss many cases not relevant to halacha, and

this may also reflect his greater focus on halacha.xliii

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Ramban emphasized tradition more than Tosafot, and this may help explain some of his

differences with Tosafot. While some have argued that in many issues Ramban lay more in the

Tosafist camp, Ramban was a recipient of the Spanish traditions. He would not have abandoned

all of his Spanish traditions in his defense of Tradition! His practice and understanding of

Talmud was defined by a respect for tradition.

A Deeper Examination

It is possible that the difference between Rambam and other Rishonim on their views on

learning Talmud relates to their different conceptions of yeridat ha-dorot (“decline of the

generations”).

Most Rishonim, such as Tosafot and Ramban, seem to accept a literal understanding of

yeridat ha-dorot - that each generation, or era, was at a lower level than the previous generation.

This clearly fits with Ramban’s approach to tradition. The reason he placed such a great

emphasis on tradition was because the earlier generations were greater than the later generations.

This also explains why Talmud would consist of analysis of the previous generations’

statements. It would be presumptuous for later generations to independently interpret the words

of significantly earlier sources. Each generation can only try to understand the previous

generation’s explanations of the more primary sources. This would possibly explain why

Ramban and the Ba’alei ha-Tosafot do not use the same independent authority as Rambam, but

accept all the rulings of the Talmud Bavli as the final word. They lived too far after Talmudic

times to be able to independently rule against passages in the Bavli based on other sources, or to

interpret pesukim and Mishnayos differently than the Gemara did.

However, Rambam may have had a different conception of historical decline. Menachem

Kellner, in Maimonides on the “Decline of the Generations” and the Nature of Rabbinic

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Authority, argues that Rambam did not believe in a rule of historical decline. Instead, the reason

we refrain from arguing with the Gemara is just because the Jews accepted its authority. He cites

the previously cited passage from Sefer ha-Mitsvot, where Rambam seems to imply that part of

yeridat ha-dorot is because people blindly accept a preceding authority:

Such is the mentality of even the elect of our times that they do not test the

veracity of an opinion upon the merit of its own content but upon its agreement

with the words of some preceding authority, without troubling to examine that

preceding source itself.

Kellner is partially right.xliv According to Rambam, there were other factors that may have caused

the decline, such as persecutions, dispersions of Jewry, and collapses of central rabbinic

authority.xlv Later generations may have forgotten some of the Torah that the earlier generations

knew. There were circumstances that caused a decline, and Rambam does not appear to believe

in an absolute historical rule of steady decline. While these reasons explain why we must

ultimately accept the authority of the Talmud, and also explain why Amoraim accepted the

authority of the Tannaim, they are not as fundamental as the Tosafist understanding of yeridat

ha-dorot. Rambam’s understanding of yeridat ha-dorot allows for more independent analysis for

later generations, as Rambam himself did. It also explains why Rambam did not feel bound to

any views of the Geonim, for there had not been any decline since their time. It also may explain

why Rambam views the fundamental mitzvah of learning Talmud as being focused on the

primary sources rather than on intermediary commentaries.

Elu Va-Elu & Truth

It is possible that Rambam and the other Rishonim also understood the concept of machloket

differently, and specifically, the Talmudic dictum of “ חיים א-להים דברי ואלו אלו ” (“These and

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these are the words of the living God”). The Talmud describes the disputes between the School

of Hillel and the School of Shammai:

הלכה אומרים הללו, הלל ובית שמאי בית נחלקו שנים שלש: שמואל אמר אבא רבי אמר

חיים אלהים דברי ואלו אלו: ואמרה קול בת יצאה. כמותנו הלכה אומרים והללו כמותנו

xlvi.הלל כבית והלכה, הן

Can both sides really be right? Rashi answers affirmatively:

Rashi says that even when several Amoraim entered into a halakhic dispute, each

arguing the merits of his view and each drawing upon appropriate comparisons to

establish the authenticity of his perspective, “there is no degree of falsehood

present (ein kan sheqer), and such a dispute can be characterized as one in which

all the various positions represent the ‘words of the Living God’”xlvii.

Ritvaxlviii (ibid.) wonders how both sides of an argument can be true:

אלו ואלו דברי אלהים חיים. שאלו רבני צרפת ז"ל היאך אפשר שיהו שניהם דברי אלהים חיים וזה

פנים ט " מ ודבר דבר כל על לו הראו תורה לקבל למרום משה כשעלה כי ותירצו, מתיר זהאוסר ו

דור שבכל ישראל לחכמי מסור זה שיהא ואמר, זה על ה"להקב ושאל , להיתר פנים ט " ומ לאיסור

xlix.בדבר וסוד טעם יש האמת ובדרך הדרש לפי הוא ונכון, כמותם הכרעה ויהיה ודור

Ritva, citing the French rabbis (i.e. the Ba’alei Tosafotl) understands “elu va-elu” literally: God

showed Moses many possibilities within every matter and there is no single original truth. Every

view can be considered the exact truth of God at Sinai!

Kanarfogelli cites many additional examples that demonstrate that the ba’alei tosafot believed in

multiple truths.

The Ramban also accepted this Tosafist view of multiple truths. Though, as Ta-Shema

points outlii, he adds a rational explanation for it:liii Talmudic studies are not like mathematics,

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where one can conclusively prove the truth of his statements. In Talmud, arguments can be

brought as support, but they rarely refute the other position entirely. Yet this is enough for each

argument to be considered “divrei E-lohim chayim”.

This understanding of elu va-elu can be seen in the approach of the Rishonim to Talmud

study and in their own analyses of the Talmud.liv Rashi explained that Talmud was an

interpretation of the previous generation’s words. Ramban was the defender of tradition, and

wrote works defending post-Talmudic rabbis. A Maimonodean would likely object to such a

style of learning – “What if the intermediate source was incorrect? To understand the truth, one

must focus on the primary sources!”. Yet, according to their understanding, this is not a problem.

“Elu v’elu” teaches that there are multiple ways of understanding. Both sides of a dispute can be

true, so surely an undisputed intermediate source can also! Thus, Rashi’s strong position on Elu

v’elu fits with his definition of Talmud. According to Ramban, the earlier traditions also achieve

the status of Torah. In fact, often the words of the sages can, to an extent, be literally considered

divrei E-lohim Hayim:

אע"פ שנטלה נבואת הנביאים שהוא המראה והחזון, נבואת החכמים שהיא בדרך החכמה לא

lv.נטלה, אלא יודעים האמת ברוח הקדש שבקרבם

One need not be afraid that their words are wrong, for their views are truth and a part of Torah.

This understanding also allows Tosafot and Ramban to analyze both sides of a dispute, for both

can be considered true views. Perhaps this can also explain why Tosafot does not emphasize final

conclusions, but often cites many views on a matter.

Rambam never mentions elu va-elu, and he considers mahaloket to be an unfortunate

circumstancelvi that should be resolved with proper analysis. The primary focus of one’s learning

should be to reach halakhic conclusions, not to analyze every opinion. If one relies on

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intermediary sources, he may correctly understand them yet still be have an incorrect

understanding of the Torah itself. One must turn to the original sources in order to discover the

one truth. Thus, Rambam defined the mitzvah of Talmud as being focused on the primary

sources. He also tried to maintain this primary focus himself. Rambam specifically omits all

rejected opinions from his Perush ha-Mishnayot and Mishneh Torah, and only renders final

conclusions.

Summary

After the dispersion of Jewry, different views emerged about the nature of Talmud. This

paper examined the views of Rambam, Tosafot and Ramban. Their different outlooks are seen in

their explanation of the mitzvah of Talmud and in their own approach to learning, as seen in their

written works. The deeper difference between their views may be reflected in alternate

understandings of yeridat haDorot and “Elu V’Elu”. Students of Talmud on our times should

find their own path to take in their own studies, but a reflection on these issues should be helpful.

As long as their learning continues in the traditions of the past, perhaps each derekh can be

considered “eilu va-eilu.”lvii

i Kiddushin 30a.ii Gittin 60b.iii Why was the Oral Torah oral? As discussed later in the paper, this may have been so that people would be focused on the Torah itself instead of on an intermediary source. In addition, the oral nature allowed for different people to learn in their own styles, since there was no specific text they were bound by. See R. Sherira Gaon’s description of learning before the Mishnah was written down (in the Iggeres of R. Sherira Gaon).

See also footnote on the later discussion of Elu V’elu, which cites a statement from Rambam about this topic. iv See, for example, Yaakov Elman, “Orality and the Redaction of the Babylonian Talmud,” Tradition 14:1 (1999): p. 52-99. v See Robert Brody, “The Talmud in the Geonic period,” p.29, Printing the Talmud – from Bomberg to Schottenstein (New York: Yeshiva University Museum, 2005): at pp.31-32. He quotes from R. Aaron Sarjado Gaon (head of the academy at Pumbedita from 942–60), who says that most of the Academy “does not know what a book is.” Brody argues that the Geonic style of learning was different than how people learned later because of its oral nature. See later discussion of Tosafot. vi Rambam’s Introduction to the Mishnah. vii The Rambam changes the word from “Mishnah” to “Torah she-Bal Peh”. Isadore Twersky shows that Rambam understood the terms “Mishnah”, “Mitzvah”, “Halacha” and “Torah she-Bal Peh” as being equivalent in many contexts (Introduction to the Code of Maimonides p. 490-492). This fits with Rambam’s view of the unchanging nature of learning Torah. Before the Mishnah was written down, there was some form of oral “Halacha” that people studied and derived from the Torah. After the Mishnah was written down, the same style of learning continued. viii Mishnah Torah, Hilkhot Talmud Torah 1:11. ix From Rambam’s Introduction to Sefer Ha-Mitzvoth. )Translation by Chayim Chavel). See also the translation of R. Yosef Kapach:

עניינו[ תכן]ב אמתת הדבר בוחנים זה שאינם בזמננו הסגולה יחידי רוב של[ אפילו ]דעתם היא כך הרי [ -כך הסגולה יחידי ואם. עצמו ההוא ]הקודם הדבר את לבחון בלי, שקדם מי לדברי בהסכמתו אלא

וכמה כמה אחת על ההמון .x Something may be lost when intermediary layers of commentary replace the primary sources as the new focus of learning. An analogous idea can be found elsewhere in Rambam, in his description of the development of Avodah Zara (Mishnah Torah, Hilkhot Avodah Zarah 1:1). That halacha can be adapted this discussion to get an idea of what Rambam is attacking:

“ …People began saying “Since the commentators are servants of the Torah, they deserved to be studied and analyzed […] and this is the honor of the Torah.” So they began building sevarot and offering inferences […] saying this is the way of the Torah. And after the years passed, people arose and said, “Study this commentator or all the commentators in this way and that way. Eventually, the Holy, Awesome Torah was forgotten from all people…

xi See the later discussion of yeridat ha-dorot where Rambam’s view of the Talmud’s authority is explained, as well as the footnotes there. xii See Tchernowitz, Chayim. Toldot Ha-Poskim, Vol I, p.217-220. In it, he cites many examples where the Rambam rules like the Yerushalmi against the Bavli, and discusses the fact that the Rambam is not following any clear rules when he paskens like one side. This may be because the Rambam followed his own analysis to decide.

I only found these pages in Tchernowitz after I had already written this section, but the entire discussion is a confirmation of the Rambam’s primary focus. xiiiSee Herbert Alan Davidson, Moses Maimonides: The Man and his Works, p. 119 and footnote 130. He mentions how there are many examples in which Rambam seems to rule like the Yerushalmi, but the Bavli can be interpreted to accord with it. If this is the case, then it would fit with the idea that Rambam interprets a primary source independently of the Bavli, as long as it does not directly contradict the Talmud Bavli.

xiv An additional example in can perhaps be found in Mishnah Torah, Hilkhot Yesodei ha-Torah 5:5, where Rambam discusses the law of a city sacrificing all the lives of its inhabitants rather than give over one Jew to be killed. Rambam takes his ruling from a Yerushalmi, even though some (the Remach) think the Bavli contradicts it. xv For example, see Kiddushin 6b (concerning one who betroths with a loan) and 58b (concerning the sprinkling of water from a sin-offering), where Rambam’s explanation seems to be focused on the primary source and gives a simpler explanation of it, even though it does not accord as well with the Gemara. I believe that he may have felt it was preferable to give the best explanation of the more primary source because that reading could be true independent of the Talmud’s explanation. (So even if his reading does not fit with the gemara’s, it may still fit with the primary source.) In both examples, other Rishonim give a simpler explanation of the Gemara, but their readings do not as easily fit with the more primary sources. For another possible example, see Yad Malakhi Kelalei ha-Rambam #38.

See also the earlier cited case from Yesodei ha-Torah where Rambam seems to focus on the primary sources instead of following the rules of pesak. Rambam rules like Resh Lakish over R. Yokhanan (though there is a rule in pesak to follow R. Yokhanan) that a city cannot hand over a specified person who is not liable to the death penalty. Kesef Mishnah explains that he follows Resh Lakish because the implications of the Tanna'ic and biblical sources are in his favor. See, however, Yad Peshutah, ibid. who argues that Rambam had a different text. xvi This idea of trying to fit with a more primary source or understanding may be seen elsewhere also. For example, the Talmud Bavli often rules in a certain way based on its understanding of the Pentateuch and rules of Derash. An objection is raised from the Mishnah, which the Talmud dismisses with either an answer that seems forced or with a textual addition or emendation (hisura mehsara). The Talmud may recognize that the answer seems forced, but they are basing themselves off a primary understanding of the Torah, and try to avoid outright contradiction with the Mishnah. xviiSee Elhanan Samet, Yad la-Rambam: Diyyunim be-Piskei ha-Rambam be-Yad Ha-Hazakah (Ma’aleh Adumim; Jerusalem: Ma’aliyot, 2005/2006). He describes many cases where Rambam rules like his own reading of the Mishnah, but then also follows the Gemara’s reading elsewhere (since they are usually two different cases).xviii Tchernowitz lists many examples of this (Ibid. p.202). xix See Tchernowitz p. 217. xx The reason for Learning Halachik matters is to know the Halacha, be able to practice it and teach it. I.e.

לעשות מנת על הלומד " " and ללמד מנת על תורה הלומד "". In fact, this purpose in learning is apparent in almost every verse in the Torah that mentions learning Torah, so Rambam has the Primary Source to back up this position. (See, for example: Shemos 24:12, Devarim 17:19, 31:12, 32:46 and Joshua 1:8.)xxi Unlike many others in Sephard, Rambam understood final Halacha to include every area, including Kodhsim and Taharos. As his work was a new form of the Oral Law, it had to contain everything. His work continued the tradition from Sinai and would exist when the Temple would be re-built, so nothing could be omitted. For more discussion of this topic, see Twersky p.204-215.xxii As Rambam states in his introduction to the Mishnah Torah, he felt his work could be read after Mikra, without any work in between. He felt these works could replace the study of Mishnah, for non-Mikra learning is not bound to a specific text. This is not to say that Rambam felt a person could fulfill all of the Mitzvah of Talmud just by reading the Mishnah Torah. In the quote above, Rambam described many aspects of Talmud, and the Mishnah Torah certainly doesn’t include all of them! Rambam himself emphatically states in a Teshuva that the Mishnah Torah does not fulfill Talmud. Perhaps a person could fulfill Talmud by learning the reasoning and principles that explain why the halachos in the Mishnah Torah are the way they are. See Twersky, Non-Halachik Aspects of the Mishnah Torah, and also Igros Moshe Orach Chayim Vol.4 #39.xxiii P.488-500. xxiv In fact, according to Rambam, Aristotle was able to reach the highest levels of wisdom with his intellect. xxv The standard text says “Gemara”, but the more correct version is “Talmud.” xxvi Rashi in his commentary on Sukkah 28a.

xxvii See Isaac ha-Levi Rabinowitz, Dorot Ha-Rishonim Vol. I, part 5 In it, he claims that the derashot that the sages seem to derive directly from the Torah are in fact derived from the analyses of scholars in the previous period. While it seems unlikely that Rashi held as extreme a view as the Dorot HaRishonim, he may have held closer to it than to Rambam’s position. it xxviii See Chaim Tchernowitz, Toldot ha-Poskim vol 2 p. 20 who says that the ba-alei ha-Tosafot copied the exact style of the amoraim. He and Karnofogel also cite the Maharshal from his introduction to the Yam shel Shlomo, who says about the Tosafist work on the Gemara:

שעשאוהו אותו ככדור אחד. ועליהם נאמר דברי חכמים כדרבונות, והפכוהו וגלגלוהו ממקום למקום. עד שנראה לנו כאחת, מבלי סותר ומבלי עוקר. אלא סוגיא זו אומרת בכה, וסוגיא זו אומרת בכה, ולא קרב זה אל זה. ונמצא מיושר התלמוד.

ומקושר: וכל הסתימות יפושרו. ותוכן פסקיו יאושרוxxix This is found in Tosafot’s commentary on Sanhedrin 24a, s.v. Belulah be-Mikra u-ve-Mishnah, and Tosafot says similarly on Kiddushin 30a, s.v. Lo tserikhah le-yomei, as well. xxx See Ta-shema, who points this out, and contrasts it with the Sephardi emphasis on halacha (Israel Ta-shema. Kneset Mechakrim - Iyunim B’Sfarot ha-Rabanit vol. 2, p.239-240). xxxi See Haym Soloveitchik, "Religious Law and Change: The Medieval Ashkenazic Example" which discusses many of these cases.  xxxii Quoted by the Maharshal and by Bernard Septimus, “Nahmanides and the Andalusian Tradition”. xxxiii p.106xxxiv Chapter 3 –“Tradition”, “The Theology of Nahmanides Systematically Presented”. The chapter contains a full discussion of Nahmanides emphasis on tradition, and brings many more examples. (Though one should realize that the book contains many misrepresentations and errors.)xxxv This is sufficient contrast with Ramban, however Rambam actually defined “divrei sofrim”. xxxvi Indeed, in Rambam’s famous palace analogy, he attacks those who just accept opinions based on “traditional authority” instead of “speculation” and “inquiry” (More Nevuchim III: 51).xxxvii In fact, Ramban also attacked Aristotle himself for not following tradition and denying the existence of spiritual elements. (Torat haShem Temimah 1:147. Cited in “Jewish Thought And Scientific Discovery In Early Modern Europe,” by David B. Ruderman, Moshe Idel.)xxxviii For example, see his well-known discussion of the rainbow in Parshat Noach.xxxix p.20xl See a summary of Ramban’s broad scope and approach to Kabbalah in Ephraim Karnofogel, On the Assessment of Nahmanides and his Literary Oeuvre. xli What Ramabam did for philosophy, Ramban did for Kabbalah. Since they were each universally recognized Talmudic authorities, there other areas of study also became accepted. (Heard from R’ Horwitz, see Moshe Idel’s discussion of “First-Order Elites”.). xlii In this work, he followed the linguistic style of the Rif, and didn’t even cite authorities from after the Rif by name (Tchernowitz). He wanted his work to follow the Rif exactly, which shows how much he respected the Rif. Tosafot, on the other hand, rarely even cites the Rif. xliii Though it may be connected to the conciseness of his commentary vis a vis that of Tosafot. xliv It is true that Rambam emphasizes the acceptance of the Talmud’s authority, yet he also mentions the reason why it has such authority:

... שדנו או שהנהיגו או שגזרו או שהתקינו החכמים ואותם. ישראל כל עליהם הסכימו שבגמרא הדברים אותם וכל הואיל עד דור אחר דור כולה התורה בעקרי הקבלה ששמעו והם רובם או ישראל חכמי כל הם, הוא כך שהמשפט ולמדו דין

השלום עליו רבינו משה

 (from Rambam’s Introduction to the Mishnah Torah)

He is not saying we should just arbitrarily accept earlier authority, since how would that help us know the truth?

Rather, the earlier authorities gathered together to establish the halacha, and they had the authentic traditions going back to Moshe, before the exile caused so much Torah to be forgotten (see next footnote). xlv Again, see Rambam’s Introduction to the Mishnah Torah:

“After the court of R. Ashe, who wrote the Talmud in the time of his son and completed it, the people of Israel scattered throughout all the nations most exceedingly and reached the most remote parts and distant isles, armed struggle became prevalent in the world, and the public ways became clogged with armies.  The study of the Torah declined, and the people of Israel ceased to gather in places of study in their thousands and tens of thousands as before.”

Rambam mentions the circumstances that caused the decline, so it is not as absolute a rule as others may have viewed it. xlvi Eruvin 13b. “Rabbi Abba the son of Shemuel said: The House of Shammai and the House of Hillel argued for three years, these said the halakhah is like us, and these said the halakhah is like us. [Eventually,] A voice [from Heaven] declared ‘These and these are the words of the Living God, but the halakhah is like the House of Hillel.’”xlvii Citation from Karnofogel, “Torah Study and Truth in Medieval Ashkenazic Rabbinic Literature and Thought”.xlviii The main purpose of this quote is to demonstrate the Tosafist view of “Elu v’elu”. With regards to the Ritva, he followed in the general approach of his teacher, the Ramban, on many topics. He also wrote the Sefer haZikaron, a defense of the Moreh Nevuchim from the attacks of Ramban, even though he felt the Ramban was more correct (see his introduction). This may have been because, by then, the Rambam had become part of the tradition that was worthy of being defended. In this way, he was following in the style of his teacher, who wrote a defense of the Behag, despite not always agreeing with him. Both of these works show their respect for tradition, and their appreciation of multiple viewpoints. xlix The French Rabbis asked, ‘How is it possible that both sides are the words of the Living God, when one forbids and the other permits?’, and they answered ‘When Moses went up on high to receive the Torah, they showed him on every matter 49 views to forbid and 49 views to permit, and he asked God on this, and He said that it will be handed over to the Sages of Israel in each generation, and the ruling would be like them.’ And this is correct according to Derash (homiletics), but [kabbalisticly] there is a reason in the matter. l Karnofogel points out that Tosafot Rabbeinu Peretz says the same thing. li Ephraim Kanarfogel, “Torah Study and Truth in Medieval Ashkenazic Rabbinic Literature and Thought,” available at: http://hsf.bgu.ac.il/cjt/files/Knowledge/Kanarfogel.pdf.lii הספרות הפרשנית לתלמוד באירופה ובצפון אפריקה חלק שניliii In his introduction to the Milchamos haShem. liv The following discussion of “elu va-elu” is partially based on Moshe Halbertal, “Three Medieval Theories of Jewish Law,” in Noam Zion, Elu v'Elu: Two Schools of Halakha Face Off On Issues of Human Autonomy, Majority Rule (Jerusalem: Shalom Hartman Institute, 2008): 49-51, available at: http://www.hartmaninstitute.com/uploads/Holidays/Elu-02062008_0957_45.pdf.lv חידושי הרמב"ן מסכת בבא בתרא דף יב עמוד א. Cited by Karnofogel p.109. He also cites some examples where Tosafot says certain statements were said with Divine Inspiration.lvi In fact, according to Rambam, a primary reason the Oral Torah was oral was so as to prevent machloket:

With reference to the Law, this rule was very opportune; for while it remained in force it averted the evils which happened subsequently, viz, great diversity of opinion,, doubts as to the meaning of written words, slips of the pen,1 dissensions among the people, formation of new sects, and confused notions about practical subjects. (Guide to the Perplexed I.71 translation by M. Friedlander)lvii At least according to Tosafot. Rambam would probably consider many derakhim to be examples of yeridat ha-dorot.