Can AI ever replace a posek?

We are honoured this week to be hosting a fascinating piece by R. Gil Student (adapted from his recent book, Articles of Faith: Traditional Jewish Belief in the Internet Era)

Dicta. org.il recently released an AI “rabbi” that answers halachic questions in the style of a classical responsum. The AI is trained on rabbinic literature, including primary texts, commentaries, codes and responsa. It sees how poskim (halachic decisors) reason, interpret texts, compare cases, consider the unique circumstances of the question, and arrive at answers. While to my mind it does not yet perform at the level of a competent rabbi, it offers us a realistic idea of the possibility of a coherent technology that can answer halachic questions independently. Once it is perfected, may any individual Jew looking to fulfill God’s word ask an AI a halachic question and follow its answer? And once AI is available to do this, would we be obligated to ask an AI rather than a human, with all his frailties?

I. AI and Divine Assistance

One approach to take is to argue that a posek, a halachic authority, requires divine assistance, siyata di-shmaya. God will help a rabbi reach the appropriate conclusion but will not assist an AI. Therefore, an AI lacks the necessary siyata di-shmaya that a rabbi has. But is this true? If the siyata di-shmaya is for the rabbi’s sake, then an AI has no merit to deserve it. But if the siyata di-shmaya is for the questioner, who wants to fulfill the divine will, why would God not help the questioner via the AI? If the rabbi is a divine vessel, why can’t the AI be a divine vessel also?

Another approach is to compare AI to a gentile. Of course, a gentile is different. He is a child of God, created in the divine image. However, the comparison still has value as a kal va-chomer, an a fortiori logical argument. If a gentile, who is conscious and able to think and reason, is unable to issue a halachic ruling, then surely an AI is unable to do so. Yet, where do we see that a gentile may not serve as a posek? I am not aware of any text or precedent that says so, although I welcome any suggested texts. Absent a text, we need a strong explanation of if and why a learned gentile, who for whatever reason and in whichever way became a master of halachic texts, may not serve as a posek.

A few years ago, when people were debating whether women can be rabbis, one line of argument was that there is no longer any halachic requirements for a rabbi. As long as a woman knows halachah, she can serve as a rabbi. As a response to that argument, I asked whether a gentile who studies Shulchan Aruch can also serve as a rabbi. If he knows the material and can teach it to people, why can’t a gentile serve as a rabbi? Of course, a Jewish woman is part of the Jewish people and the Sinai covenant. She observes the commandments and the Jewish holidays, and is part of the age-long Jewish story. But does any of that matter in terms of issuing a halachic ruling?

II. Two Types of Pesak?

In order to begin answering these questions, we first need to distinguish between two types of paskening, issuing halachic rulings. The Gemara (Eruvin 62b) says that a student may not issue a halachic ruling in the presence of his mentor to the point that it is a capital offense (ibid., 63a). Rav Meir (Maharam) of Rothenburg (13th cen., Germany) is quoted as distinguishing between an original ruling and an existing ruling found in books (Hagahos Maimoniyos, Hilchos Talmud Torah 5:3). A student may offer in his teacher’s presence a halachic ruling that he found in a published book because he is not really ruling. He is just serving as a technical reference, offering the knowledge that he has acquired through his study. However, a new halachic ruling requires evaluation and consideration. A halachic reference is the regurgitation of information. A halachic ruling is the creation of new information. Significantly, this distinction is recorded in Shulchan Aruch (Yoreh De’ah 242:9) and explained by Shach (ad loc., 16). While many dispute Shach’s explanation, Rav Shmuel Wosner (21st cen., Israel) argues that this idea applies to post-Talmudic codes and responsa that are intended for practical teachings (Shevet Ha-Levi 2:113).

With this distinction between a halachic reference and a halachic ruling, we can understand another law. The Gemara (Avodah Zarah 7a) says that when one rabbi rules on a specific case strictly, another rabbi is not allowed to permit it. One approach to this seemingly technical rule is that pesak, halachic rulings, do not just teach the law. A rabbi’s ruling creates a religious status in the object under question. Is this chicken kosher or non-kosher? When you ask your rabbi, he defines the chicken’s status for you. Even if another rabbi disagrees and says that the chicken is kosher, it doesn’t matter. If he can show that the rabbi was mistaken on an explicit law (to’eh bi-dvar mishnah) then he nullifies the original ruling. Absent that, the first rabbi has changed the chicken’s religious status for you. He has not just taught you the law but determined what the law is for you. A pesak is a religious act, not just a technical reference.

III. Pesak as a Mitzvah

The Torah says regarding the priests: “that you are to teach the Children of Israel all the statutes” (Lev. 10:11). Rav Yitzchak of Corbeil (13th cen., France) counts this as a mitzvah on anyone capable of issuing a halachic ruling (if no one else more capable is available; Semak, no. 101). Issuing a pesak is a mitzvah, a religious obligation. While others include this as part of the mitzvah to study and teach Torah, Rav Yitzchak sees it as an independent mitzvah. Either way, issuing a halachic ruling is an act of religious devotion. It is a fulfillment of a divine command that allows the respondent to enter the religious life of the questioner and create for him a new halachic reality.

Is it any wonder, then, that a gentile may not serve as a posek, a halachic decisor? It is one thing to serve as a halachic reference, to direct people to existing rulings. Anyone who has studied halachah can tell people what, for example, Mishnah Berurah says about a specific case. A computer can do this, as well. A person is better than a regular computer at understanding the nuances of a question and offering the appropriate reference source. An AI might be even better at this than a person, with perfect recall of a massive library. However, this is just about referencing past rulings.

Issuing a new halachic ruling is not just about providing a reference — it is a religious activity. I suggest that only those within the religious community, only those who are part of the covenant and fulfill commandments, can create a halachic reality by issuing a ruling. Jewish men, women, and children fulfill commandments and take part in the halachic process as consumers. Therefore, if qualified and in the right circumstances, they may also take part in the other end of the halachic process as producers. A Jewish man, woman or child can serve as a posek. Someone outside the halachic covenant cannot create a halachic reality and therefore cannot serve as a posek. This would prevent someone from asking a gentile and, kal va-chomer, an AI for halachic rulings.

There is still room for AI in the halachic process. An AI can serve the broader public as a halachic reference for questions that have already been answered, directing people to the relevant texts and even providing them source sheets. An AI can also serve as a rabbi’s assistant, gathering relevant sources and proposing different approaches to answering a question. Ultimately, the posek will evaluate all the relevant texts and precedents, think through all the mitigating circumstances and personal considerations, weigh the halachic and meta-halachic issues involved, and deliver a halachic ruling.

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Can matters of belief be subject to halachic resolution?

As diligent Daf Yomi dedicants drive on through the final chapter of Sanhedrin, they become increasingly exposed to theological and aggadic material which, while often fascinating, appears to have little impact on practical halacha.

It is on one of these discussions that Rambam relates a fundamental principle. In the third Mishnah of Chelek, sages dispute as to whether various sinful generations forfeited their share in the World to Come. While Rambam typically concludes his Mishnah’s commentary with a halachic ruling, here he teaches that, since this dispute has no practical ramification, it is not subject to the regular process of halachic determination.

Judaism Reclaimed shows how similar comments of Rambam can be found elsewhere concerning other disputes as to the methods and processes of the Heavenly Court.

Some writers, such as Marc Shapiro in The Limits of Orthodox Theology, have argued that this principle extends to any discussion over theology and heresy. The implications being that there can be no definitive red lines drawn to determine what is considered a heretical statement or belief. Judaism Reclaimed brings opposing arguments from the writings of Rabbi Gil Student – also endorsed later by Rabbi Joshua Berman in Ani Ma’amin – that determining the parameters of heresy indeed has practical halachic ramifications, albeit indirect. There are a numbers of laws concerning heretics which require and presuppose the existence of such a determination: for example a heretic cannot lead a prayer service and his ritual slaughter – and a Torah scroll he pens – is invalid.

A more careful reading of Rambam’s comments on the subject shows that he only writes this comment concerning disputes that relate exclusively to the operation of the Heavenly Court. The current Daf Yomi pages of study provide a strong support for this assertion.

After all, the opening Mishnah of Chelek details a series of heretical beliefs – some of which are disputed among the sages. Yet the Rambam does not state his principle here. Instead he waits until the third Mishnah of the chapter which contains disputes over worthy and condemned generations in order to tell us that disputes over the functioning of the Heavenly Court are not subject to halachic determination.

The tenth chapter of Talmud Reclaimed goes further to explore the ramifications of such a principle – how laws of heresy might be determined. To what extent these can be disputed and whether such required beliefs can change in the course of different generations.

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Rambam and belief in Techiyat HaMetim

Belief in the doctrine of revivification of the dead, normally associated with a future Messianic era, is declared by an undisputed Mishnah in this week’s Daf Yomi study to be a fundamental belief of Judaism and a pre-requisite to entry to Olam Haba. This position is adopted by Rambam in his halachic works, Hilchot Teshuvah and the 13 Principles of Faith at the end of his Introduction to Chelek.

In the worldview of Ramban, techiyat hametim is the highest level of posthumous reward, and is facilitated by the soul being reunited with the body. Accordingly, one can understand why such emphasis is placed on belief in techiyat hametim.

Such an approach, which suggests a role for the body in the ‘world of the souls’, is absolute anathema however to Rambam, for whom the body does not and cannot feature in any aspect of Olam Haba. For Rambam the physical body is a barrier which prevents the mind from fully grasping divine matters during a person's lifetime. The reward of Olam Haba is experienced by the soul when it achieves a purer perception of reality after death, a level of understanding which can be reached precisely because the soul is no longer restrained by its previous physical associations.

Techiyat hametim, Rambam explains in his introduction to Chelek, is not a reward in the sense in which Ramban understands it. Rather, it is a temporary return of the soul from its place of pleasure in Olam Haba to the physical body from which it had departed. But what is the utility of this techiyat hametim for Rambam, and how can we explain the importance he attributes to it, listing techiyat hametim among his 13 Principles of Faith?

One possible answer is that, since the ultimate reward of Olam Haba is limited by the extent of the connection that a person is able to forge with God during his lifetime, the opportunity to return temporarily from Olam Haba in order to enhance this connection is a considerable benefit. The extent to which the soul can comprehend divine truths in Olam Haba is determined by how much it was developed, both in terms of intellect and character traits, during the lifetime of the body which that soul inhabits. Techiyat hametim, in the sense of a temporary reunification of soul and body, will occur in the times of Mashiach when persistent worldly distractions will be replaced by a 'tidal wave' of knowledge of God. With this heightened awareness of God, conditions will be ideal for the soul to achieve its perfection, and a clear perception of Divine truths will be accessible to all. In this elevated state of perception, "Your sons and daughters will prophesy".

This way of explaining Rambam finds support in the Sefer Ha’ikkarim of R’ Yosef Albo (4:30):

“… Rambam concludes that the primary divine reward for mankind relates to the soul and not the body, and therefore it appears to him that the primary function of techiyah is not to furnish reward to the body, but rather so that the person can acquire a greater degree of perfection than he was able to achieve originally [in his initial life] when he was inhibited by external preventative factors such as those arising from exile, poverty or others; the inhibitions did not arise from him making unsound choices or in any way from himself.”

On this basis we can suggest that a particular significance of techiyat hametim to Rambam’s thought, which may explain its inclusion among the core tenets of Jewish faith, is that, without it, God and His system of Olam Haba appear fundamentally unfair. If reward in the next world is determined solely by the extent to which a person has been able to develop and connect his soul to God during his lifetime, it is inevitably limited by that person’s life-span, material and intellectual assets and position in society.

Without techiyat hametim providing a further opportunity to connect with God even after death, it would appear that every individual’s personal allocation of Olam Haba is strongly influenced by good fortune, with those afforded greater opportunities and resources receiving an arbitrary advantage. A corollary of this would be the conclusion that God operates unjustly, discriminating against those whose life circumstances do not permit them to reach their potential. In this light, Rambam's techiyat hametim can be seen as crucial in allowing for the rectification of unavoidable deficiencies which would otherwise have prevented the soul from achieving the connection to God in Olam Haba of which it was worthy.

Rambam’s acceptance of the doctrine of techiyat hametim was a matter of great controversy during his lifetime; his earlier works only making brief mention of it in order to confirm its status as an essential tenet of faith. This lack of coverage, combined with Rambam’s strong insistence on a purely metaphysical Olam Haba, led some to question whether he genuinely subscribed to the traditional view of the soul returning to the body. The issue gained particular prominence because it represented a deeper question: how did Rambam resolve contradictions between the Torah's teachings and his general worldview which was based upon Aristotelian rationalism?

In response to the ongoing controversy, Rambam wrote his Iggeret Techiyat Hametim in which he forcefully condemned the 'slanderous allegations' against him. Explaining why he had previously written so little on the subject of techiyat hametim, Rambam describes it as a 'mofet' that defies the kind of rational explanation which dominates his philosophical works.

Judaism Reclaimed’s treatment of this topic, which explores how the respective techiyah theories of Rambam and Ramban can be fitted into their broader worldviews, concludes with a comprehensive appraisal of claims made in various quarters that Rambam’s Iggeret concerning resurrection did not represent his true views on the subject. Whatever one concludes, the subject of techiyat hameitim remains pivotal to understanding the Maimonidean world view and how it contrasts to other systems of thought within Judaism.

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Tamid and the evolution of the commandment to recite Shema

Yesterday’s Torah portion detailed a number of activities, such as lighting the menorah and offering the daily sacrifices, with which the daily Mishkan workload was scheduled to start and conclude. Several of these activities attract the description 'tamid', which means ‘constant’, a term which sits uncomfortably with the reality that these activities were performed only once or twice a day, in the morning and evening. This difficulty is highlighted by the observation of Rashi, at the start of our parashah, that regular daily events can attract the term tamid even if they are not continuous. Why should this be?

One explanation of Rashi's statement is that the use of the term tamid to describe regular but non-constant activities provides us with a fundamental insight into how the dynamics of these cyclical events are viewed from the Torah's perspective. The opening and closing ceremonies of the Mishkan’s daily routine were not intended merely to supply an element of solemnity or grandeur. Rather, they contextualise and grant legitimacy to everything that happens during the span of time that passes between them. By validating the various offerings that were brought throughout the day, the opening and closing activities can be seen to exert a constant influence and thereby justify the Torah's description of them as tamid. Judaism Reclaimed explores the significance and symbolism of each of these practices in this context.

The importance attached to how a unit of time is commenced and concluded does not just apply to the Mishkan procedures. As part of the Gemara’s discussion of the lechem hapanimprocedure, a comparison is drawn between the use of the word 'tamid' to describe the lechem hapanim, and the requirement that Torah never be absent from one’s mouth. The Gemara concludes that this commandment can be fulfilled even by studying a minimal amount of Torah each morning and evening.

This obligation to fix a regular time for Torah learning each morning and evening, is codified by Rambam and the Shulchan Aruch; it exists in addition to the general obligation to study Torah during any available time. The added dimension of these fixed study times is that they encase a person's mundane activities, imbuing them with the spirit of Torah study and thereby ensure "lo yamush" — that the Torah is never entirely removed from his mouth.

Talmud Reclaimed develops this idea further in a central case study which explores the origins of the commandment to recite Shema twice-daily. Building upon Rambam’s principle, that matters which are disputed among the sages do not belong to the body of transmitted laws received from Sinai, we note that there is a Talmudic argument (Berachot21a) as to whether the mitzvah of Shema is biblical or rabbinic in nature. This would seem to indicate that the commandment was not transmitted immutably from Moshe. On the other hand it does seem to be unanimously accepted in the Talmud that some passage of Torah must be recited, at the very least, each morning and evening.

The suggested resolution, which draws some support from the Pnei Yehoshua and Sha’agat Aryeh, is that the original Sinaitic requirement was that each person commence and conclude their day with the study of some passage of Torah. As seen above, by encasing one’s more mundane daily activities in between sessions of Torah study, this imbues religious and spiritual meaning to all of what one does in the interim period.

At some point, however, the Sinaitic tradition of a biblical commandment to recite words from the Torah twice daily would have been fixed by the Court so as to apply specifically to the first sentence (or perhaps the first paragraph) of the Shema, the second paragraph being added as a purely rabbinic commandment. As suggested by the Pnei Yehoshua, this is likely to be because of the passage of Shema containing a declaration of the unity of God and an acceptance of the yoke of heaven. Matters which the Sanhedrin of the day is likely to have wanted to inculcate further into the hearts and minds of the nation undergoing particular challenges.

While the sages and Sanhedrin enacted this decree to narrow down the previously undefined obligation to study Torah (at least) twice-daily, the blessings recited over Shema may reflect the commandment in its initial undefined form – focusing on the importance of Torah study rather than mentioning the unity of God and accepting His authority and mitzvot.

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Esther: when midrashic methodology leads to halachic leniency

This past weekend saw an overlap between the Daf Yomi calendar and our preparations for Purim, as the subject turned – albeit briefly – to analysing Esther’s conduct. While the discussion lasted only a couple of lines, its implications are enormous and form a central case study in a couple of chapters of Talmud Reclaimed.

The Talmudic passage in question is examining the sins for which a person is required to give up their life rather than commit. These consist of the three “cardinal” sins: murder, idolatry and adultery, as well as any sin which a person is being forced by a non-Jew to commit in public or at a time of religious oppression. The Talmud then questions this conclusion, basing its challenge on the narrative of Esther, who willingly married Achashverosh – a non-Jewish king – rather than surrendering her life, despite her participation in this marriage being a public sin. It proceeds to offer various solutions. What concerns us here, however, is the nature of the Talmud’s question, which is based on the premise that Esther was single at the time of her marriage to Achashverosh. According to this premise, she could not have been committing the sin of adultery, but rather the non-cardinal sin of intermarriage, with the aggravating factor that her marriage was very much a matter of public knowledge.

Tosafot examine the Talmud’s question in view of a Talmudic teaching from the first chapter of tractate Megillah (13a), which treats Esther as having been married to Mordechai before she wedded Achashverosh. Based on this teaching, they ask why the Talmud did not pose a greater question: surely Esther was not only marrying a non-Jew, but was also committing adultery – one of the three cardinal sins – for which the Talmud would expect her to have given up her life? Based upon his synthesis of these Talmudic passages, Rabbeinu Tam, often seen as the most creative of the Tosafists, proposes an original and far-reaching principle. He concludes that, since the Talmud's challenge in the primary passage was not concerned with the question of Esther committing adultery with Achashverosh, even though Esther was already married to Mordechai, we can deduce that a sexual relationship with a non-Jewish man does not constitute full adultery.

Citing as support his own innovative expansion of a separate Talmudic teaching, he proceeds to issue a practical legal ruling to the following effect: a married Jewish woman who has a sexual relationship with a non-Jewish man who later converts to Judaism, is permitted to marry him. While a married Jewish woman’s sexual relationship with a Jewish man would have prohibited the two from subsequently marrying, Rabbeinu Tam permitted marriage in the case of a non-Jewish convert on the basis of his deduction that adultery with a non-Jewish man does not constitute full adultery.

The significance here is twofold. First, the source teaching that Esther and Mordechai were married is an aggadic inference which many of the peshat commentators to the Megillat Esther do not understand to be literal. As the Rashba comments on this passage: “We do not pose questions from aggadic sources”. Secondly, even setting aside the fact that Esther’s marriage is an aggadic addition, it is still far from simple that it should be taken into account when interpreting the sugya in Sanhedrin.

This Talmudic interpretation of Rabbeinu Tam, and the legal ruling that it produces, is a classic example of the creative Tosafist methodology which presumes that disparate Talmudic passages should be read in tandem and then introduces interpretative and legal innovations in order to reconcile them. The Maimonidean-Geonic approach to this matter, by contrast, having identified the primary Talmudic passage which deals with this area of law, does not presume that the authors of these passages were necessarily in agreement with the authors of the separate aggadic teaching that Esther and Mordechai were married. The Kessef Mishneh commentary of Rav Yosef Karo on Rambam’s ruling wholly dismisses the possibility that he took the aggadic passage into account.

In terms of the question of which sins require people give up their lives rather than transgress, the primary passage in tractate Sanhedrin does not distinguish between a woman committing adultery with a Jewish or non-Jewish man. Similarly, in terms of whether participation in an adulterous relationship prohibits any future marriage between its two parties, the primary Talmudic sources do not disclose any distinction based upon the man’s religious status. If anything, they appear specifically to include all sorts of men in this law. These laws as codified by Rambam therefore make no distinction between Jewish and non-Jewish men.

This also has potential implications for the analysis of Reb Chaim Brisk (opening pages of his famous Chiddushim al HaRambam) which takes on the assumption that Rambam did indeed combine these passages – just as Tosafot did – and proposes some wonderfully intricate solutions to explain how he nevertheless reached different legal conclusions. But that is the subject of another chapter altogether.

Find out more at www.TalmudReclaimed.com.

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