Truth, Compromise, and Meta-Halakhah

Dear Friends,

As I mentioned in a recent essay, Aggadah is the prophetic voice within Judaism. Halacha can deal only with the generalities and capabilities of humankind. Aggadah, on the other hand, deals with the sum total of human life.

Aggadah gives us the ability to go beyond the realms of the definable, perceivable, or demonstrable. Its metaphors touch the infinite through the use of symbolism, creating a kind of spiritual camera that creates mental images of the indescribable.

Aggadah is redemptive, for it brings history alive through the music of prophecy, revealing the threads  woven into the fabric of human development, exposing elements of future events. It speaks about genuine faith, wisdom, and ethics—sometimes through improbable tales that are not meant to be taken literally.

Whereas Halacha is the consummation, Aggadah is its aspiration. It is the refinement of Halacha.

It is thus a great pleasure to introduce an article by our Think Tank member Yael Shahar, herself an important Jewish thinker. This article discusses the world of Aggadah, and provides a splendid example of the difference between Halacha and Aggadah. It is a great illustration of why there is no way to understand the world of the Talmud without a proper understanding  of this important non-legal side of the Talmud.

Enjoy!

Nathan Lopes Cardozo

The role of Aggadah in shaping the Jewish legal tradition

In last week’s Thought to Ponder, Rav Cardozo mentioned that when he learned Gemara in yeshiva, his teachers tended to skip over the Aggadata—the non-legal material in the Talmud.

This is actually quite surprising, for it is the Aggadata that sets the Jewish legal tradition apart. To the best of my knowledge, no other legal system manages to integrate psychological and moral issues so seamlessly with normative legal guidelines. This integration is accomplished by the masterful interweaving of legal discussions (midrash halakhah) together with the allusive power of narrative story-telling (midrash aggadah). The combination allows the text to speak to different levels of the mind and heart at the same time.

And this is why it is shocking—and rather disappointing—to learn that some prefer to reduce the Gemara to a mere compendium of law. My initial response to Rav Cardozo’s revelation was: “How are you expected to learn all the unteachable rules of psak if they don’t teach what is unteachable?” However, readers may be forgiven for not quite grasping the subtle erudition of this question!

So let me offer a longer, and hopefully much clearer, explanation of what it is that makes the Aggadata so important to the Jewish legal tradition. I will begin with an example.

P’sharah vs. Din

In Massechet Sanhedrin (6b) we find a curious dispute. The Mishna states that just as a criminal case requires three judges, so does a p’sharah, or mediation. In other words, a compromise is on a par with a regular legal case and can be decided upon by a formal court.

But how can this be? After all, judging criminal cases is a mitzvah d’orayta—a law set out in the Written Torah—while mediation is not. Not only is mediation outside of formal halakhah but it is a violation of strict justice as well, as one Tanna expresses very forcefully:

That’s pretty stark! “For Truth should split the mountain.” To compromise means playing fast and loose with the truth. In a financial dispute, a compromise essentially amounts to stealing from whichever of the two parties is actually in the right, and giving to the party that is in the wrong.

The answer appears to be that there is more to our mesorah (tradition) than pure halakhah. There is a level of meta-halakhah, which may not always be easily defined, but is spelled out in the language of value concepts.  And so, the quote above is followed by an appeal to aggadah:

This contrast between the way of Moshe and the way of Aaron—between strict judgment and mediation—is formalized in the opinion of R’ Yehoshua ben Korḥa:

Making peace is not halakhah per se, and yet, here the common good of a community—peace and social harmony—is set above the strict letter of the law. So much so, in fact, that dayanim are instructed to suggest to the disputants that their dispute be resolved through mediation. Meta-halakhah supersedes halakhah, and it does so within a halakhic context!

Aggadah vs. Halakhah

Such meta-halakhic principles cannot be formally incorporated into halakhah; rather, they serve as the implicit background to halakhic discourse. They find their expression in midrash aggadah, the associative vehicle for bringing forth deeper truths from the subconscious of the listener. A discussion in Baba Batra may help to show how aggada serves as the vehicle for meta-halakhic principles:

According to the Mishna, in the case of a shared courtyard, a homeowner can be compelled by his neighbors to participate in building a gatehouse. From this it is clear that a gatehouse is a home improvement, which increases the value of the property. After all, no one can compel a person to chip in on something that will ultimately decrease his property value.

And yet, the Gemara immediately following presents the case of a certain “hassid” who was wont to speak with Eliyahu haNevi. When the man built a gatehouse for his courtyard, Eliyahu stopped visiting him. Why?

One can think of plenty of reasons. The gatehouse is the classic example of a layer of bureaucracy between a person and his society. Anyone in need of help, alms, or whatever is going to be stopped cold by the gate guard, who has no stake in the matter whatsoever. But more, the homeowner has surrendered a measure of his free will. How so? From now on, even if he wanted to help the man in need, he has lost the chance of doing so, because he will never know that there was such a man! He has cut himself off from the community.

Unmeasurable quantities and unteachable teachings

Now these are things on which one cannot put a monetary value. One can say that the gatehouse increases the property value by x amount. and that is something that the Mishna can speak to. But the loss of free will? The effect that distance has on the psyche of the homeowner? None of these things can be quantified in shekels. It is beyond the scope of the law. But it is not beyond the scope of the mesorah—the Jewish cultural tradition as a whole. And this is what the aggadah comes to teach us.

This is a pattern in the Gemara: a midrash halakhah teaches us what we should do, can do, and mustn’t do, but this is paired with a midrash aggadah (often opposed to the straight halakhah) which teaches what we should want to do. The halakhah rules for the situation as it is; the aggadah tries to make the situation better than it is.

The role of  Eliyahu HaNavi

But what is Eliyahu doing in this story? 

Eliyahu is a liminal character, a person caught between life and death. He shows up at the border between light and shadow. In midrash, he is always a denizen of the gray zone beyond the reach of formal legislation, and often beyond the reach of rational thought. In this realm, reason is far out of its depth, a futile attempt to codify a vast sea of pre-rational moral and emotional behaviors; we know what is right without thinking, but cannot explain our choices in rational terms.

Whenever things are not clear-cut, there Eliyahu calls the shots. But more, whenever there is a difference between what is legal and what is moral, there we find Eliyahu making the ultimate judgment call. Not for nothing are certain legal disputes set aside for Eliyahu to settle in messianic times. Look closely at these matters and you’ll see that most of them—the vast majority—are issues where conscience will decide differently than would the strict letter of the law. In messianic times, these matters will be decided by Eliyahu—that is by conscience.

So the question is: what time is it?  Are we living in a time when our conscience is meant to judge? I don’t know the answer to that but I can say that our age is marked by an ascendency of conscience. What is not new is the meta-halakhic integration of the unteachable, non-rational claims of conscience with the strict needs of legislation to guarantee the stability of society. Throughout the Talmud we find midrash juxtaposed to halakhah, p’sharah juxtaposed to din. The appeal to meta-halakhah is not a venture beyond the mesorah.

There is room in the mesorah for both halakhists and aggadatists—for poskim (who work subtle changes in halakhah over time via case law), and for philosophers, who change the climate in which poskim work.

Which of these is primary: aggadah or halakhah? It may be meaningless to ask such a question, but it seems to me that aggadah is the foundation for halakhah, in the sense of being prior to the self-conscious institutions of legislation, much as empathy is the foundation of self-conscious behavioral norms. As if to emphasize this point, the Torah itself begins with aggadah!