Conflict of Opinion
CONFLICT OF OPINION
CONFLICT OF OPINION (Heb. מַחֲלֹקֶת, maḥaloket; Aram. pelugta; Palestinian Aram. taflugta).
Rarely did a view in the Talmud go unchallenged, since every talmudic scholar was entitled to his own opinion, even if it conflicted with that of his greatest contemporaries (bk 43b). Consequently the Talmud is replete with undecided controversies. However, this was not always so. For the Jerusalem Talmud (Ḥag. 2:2, 77d; cf. Sanh. 88b; et al.) states that: At first there was no maḥaloket in Israel, except over the issue of ordination (*semikhah). Then Shammai and Hillel arose (see *Bet Hillel and Bet Shammai) and they differed on four issues (cf. Tos. to Ḥag. 16a). When, however, the disciples of Shammai and Hillel grew numerous, and did not wait upon their masters sufficiently, maḥaloket became rife in Israel. They divided into two schools, the one declaring (something) ritually impure, while the other declared (it) pure and it (i.e., unanimity of opinion) will not return to its place until the Son of David come (cf. Eduy. 8:7). Thus from the early first century c.e. on, undecided controversies became more common, often represented by opposing schools, e.g., Hillel and Shammai, Rav and Samuel, Abbaye and Rava, etc. Occasionally, a later controversy was attributed to "pre-maḥaloket" personalities, even to King Saul and David (Sanh. 19b; see Urbach in bibl. and p. 54 n. 49).
The rabbis appreciated the value of positive controversy, expressing it thus: Only a maḥaloket which is for the sake of heaven (le-shem shamayim), such as those of Hillel and Shammai, will in the end be of lasting worth; one which is not for the sake of heaven, such as that of *Korah and his company, will not in the end be of lasting worth (Avot 5:17).
Rules of Controversy
Though everyone was entitled to argue his own views, there are certain rules determining which kinds of dissenting opinions are permitted. Thus a tanna (a sage of the mishnaic period) cannot express a view that runs counter to a biblical passage. Similarly, an amora cannot contradict a Mishnah or accepted baraita, unless he cites another tannaitic source to support his contention. However, the early amoraim Rav and Johanan had the right to contest mishnaic opinions (Er. 50b).
Rules of Decision
Scattered throughout the Talmud are rules on how to decide practically between differing opinions. The following are general rules: In all cases the view of the majority overrules that of the minority (Ber. 9a; et al.). If one Mishnah recorded a controversy of two tannaim, and a later one in the same order recorded one of those opinions anonymously (setam), then the opinion of the latter Mishnah is to be followed (Yev. 42b). In matters of mourning the lenient ruling is to be preferred (mk 18a); likewise in rabbinic institutions (Beẓah 3b).
Particular rules (tannaitic and amoraic) are recorded on how to decide in the case of a tannaitic controversy. Thus, with certain exceptions, Hillel's rulings are accepted in preference to those of Shammai (Er. 13b). Eliezer b. Jacob's Mishnah is kav ve-naki ("small in compass, but trustworthy," Yev. 49b). As Eliezer b. Hyrcanus was a shammuti (either "under a ban," or "a Shammaite") his views were not usually followed (Shab. 130b). Decisions of Simeon b. Gamaliel, except for three cases (Git. 38a), and likewise those of R. Judah ha-Nasi (bb 124b; cf. Pes. 27a) are always followed. Akiva and Yose b. Ḥalafta are followed rather than their opponents (Er. 46b, 51a), and Meir is followed in his gezerot ("decrees," Ket. 57a), but not in matters involving reasoning, as his reasoning was too subtle (Er. 13b). In a maḥaloket between Judah b. Ilai and either Meir or Simeon, Judah is followed, but in all laws of the Sabbath Simeon is followed (Shab. 157a). Nathan's rulings are always binding (bk 53a).
The following rules apply with regard to amoraic controversies: In civil law Rav's views overrule those of Samuel; in religious law, the reverse is the case (Bek. 49b; et al.). Similarly with R. Nahman and R. Sheshet (Ket. 13a; cf. bk 96b; Sanh. 5a; et al.). In all controversies between Rav and Johanan, except three, Johanan is followed (Beẓah 4a). Likewise Johanan's views overrule those of Resh Lakish, in all but three cases (Yev. 36a). Rabbah's opinion prevails over that of R. Joseph in all but three cases (Git. 74b), and Rava's opinion over that of Abbaye in all but six cases (bm 22b). Perhaps the most important rule to be formulated in post-talmudic times was that of halakhah ke-vatra'ei, that is: wherever two amoraim are in conflict, and nowhere is it stated which opinion is to be followed, that of the later amora takes precedence (see e.g., B.M.Lewin (ed.), Iggeret R. Sherira Ga'on (1921), 38). There are many more such rules, but they do not apply where the Talmud expressly states the halakhah (Er. 46b). A considerable literature discussing these rules has grown up since the geonic period, such as Seder Tanna'im ve-Amora'im (1839) and Mavola-Talmud of Samuel Hophni, attributed to Samuel ha-Nagid (Constantinople, 1510).
et, 9 (1959), 241–339, 341–65; S. Assaf, Tekufat ha-Ge'onim ve-Sefrutah, ed. by M. Margalioth (1955), 223–45; E.E. Urbach, in: Sefer Yovel… Gershom Scholem (1958), 43–45, 54 n. 49; Z.H. Chajes, Kol Kitvei (1958), 363–94; B. De Vries, Meḥkarim be-Sifrut ha-Talmud (1968), 172ff.