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Jewish Law’s Ideal State and Pragmatic State

Halakha has an ideal state (Beit Shammai) and a pragmatic state for world of unredeemed humanity (Beit Hillel). Both are the words of the living God
Noam Zion is a Senior Fellow Emeritus of the Kogod Research Center at the Shalom Hartman Institute since 1978. He studied philosophy and holds degrees from Columbia University and the Hebrew University in Jerusalem. He studied bible and rabbinics at the Jewish Theological Seminary of America and the Hartman Beit Midrash. In the past, he led the Tichon program for North American Jewish educators and he teaches in Hartman Institute rabbinic programs: the Be’eri program

What sense can we make of Elu vElu divrei Elohim hayim (TB Eruvin 13a)? How can there be multiple points of view within God’s one true Torah? Can we have pluralism and truth?
Avi Sagi suggests that there are two major schools of thought about truth reflected in the halakhic thinkers who ponder the debates of Hillel and Shammai – one monist and one pluralist.
Monism holds that there is in the end one truth, one Author’s intention, even if there is a process of raising multiple points of view until we get to the true answer. The search for truth involves “discovering” the original intention of the Torah either by finding a correspondence of the law with the order of nature created by God or finding the coherence of any one case with the ideal system that Torah teaches (Rav JB Soloveitchik). When there is a dilemma between two values, there is always one that takes precedence, so dilemmas are always temporary. (Kant, Ronald Dworkin). 
Pluralism holds that there are multiple truths which are all legitimate and that no one truth captures all the aspects of an issue. We do not “discover” the truth but we “prefer” a particular truth over others. The decision is one based on argumentation, not arbitrary preference, but the arguments are not deductively decisive rendering the alternative option illogical or mistaken or just plain wrong. Dilemmas are real, and there is a price for any choice made. (This pluralism is typical in different forms of Isaiah Berlin, Yosef Raz, and Aharon Barak, head of the Israeli Supreme Court). While in many cases the law will be clear and objective in hard cases, in dilemmas between two valid conclusions based on the existing law, the judge must rely ultimately on subjective judgment in the analogical thinking typical of law. That judgment is not arbitrary but rather it is reasoned inferentially. The authority of the judges then rests on their holding that office, not merely on their being experts at what the law requires.
Monism believes there is only one true view, only one legitimate halakhic position. However, unlike Eliezer, that truth is not merely received by tradition and preserved without rational argument. We need rational discussion – not a Bat Kol – to identify the truth. But after reaching the truth, how can we call even the rejected view “the words of the living God” as does the Bat Kol in TB Eruvin 13a? How are tolerance and encouragement of debate essential in defining the Divine truth given at Sinai?
Mishna Eduyot 1:5 explains according to Rabbi Yehuda that the minority opinion is taught along with the majority position, so that if someone claims they heard the minority view as tradition then we know that it was the rejected tradition. We know the point of the majority position when we know what they rejected so it cannot be raised again.
The rejected view serves instrumentally to help us understand the accepted view better. Many scholars have upheld this form of monism, which values the study of dissenting views.
Rashi (TB Ketubot 57a) explains “when one amora argues one way and another the opposite, neither view is false for they are making legal analogies [in which more than one conclusion can be inferred]. About this we should use the phrase Elu vElu dirvrei Elohim Hayim for sometimes one argument is relevant and sometimes another for the reasoning can be reversed in accordance with a slight change of the case.”
The rejected opinion may turn out to be relevant in a similar but slightly different legal case. Both sides of the argument are essential, not because God’s ideal Torah is filled with contradictions, but because the application of law to the reality in its changing conditions requires complex distinctions. The rejected opinion may be incorrect for one concrete case but true for another.
The rejected opinions of the minority serve not only to clarify the truth, but they may become the majority opinion in later generation. That we learn:
“Why do we report the legal view of a single scholar [the overruled minority] along with the majority view, even though the minority view is not the halakha but rather the majority? For if a Beit Din sees the minority opinion as valid, then they may use it as a precedent [for deciding the law differently].” –Mishna Eduyot 1:5
Rav Menashe from Ilia, 1767-1831, said, “For the law can change according to the generation. Even laws between God and human beings or mitzvot without reasons depend on the times and on the court in that era.”
In fact, according to a Kabbalist tradition: 
“In the future the halakha as a whole will follow the school of Shammai and Rabbi Eliezer ben Horcanus in halakhic decision-making always changes according to the state of deterioration of the generation. But we may hope that the generation will fix itself (Tikkun Hadot) and ‘the earth will be filled with wisdom.’ Truth and reason are twin brothers never to be separated. In the future when the majority of the world is good, then the halakha will change to follow the previous minority position of Shammai, who are called mchadidei tfei – wiser, sharper, and of Rabbi Eliezer ben Horcanus whose great prominence is well-known. Their opinion was rejected in their generation because of the state of the generation but the halakha will return to its full strength in the future.” (Menashe from Ilia, 1767-1831).  
Thus halakha has an ideal state (Beit Shammai) and a pragmatic state for world of unredeemed humanity (Beit Hillel). Both are the words of the living God.

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