Professor Marc Shapiro, in his article "The Brisker Method Reconsidered: The Analytic Movement: Hayym Soloveitchik and His Circle By, Norman Solomon" (Tradition 31:3, Spring 1997), writes,
The story of the "oven of Aknai" (Bava Metsia 59b) teaches that as far as Torah interpretations are concerned, original intent is not the decisive factor. It is the conclusion of the sages which is central. Even when God Himself reveals His intention, we do not listen to Him, for it is God's will that after the Torah was given, it be explained through human intellect.
Professor Shapiro's article is largely concerned with the fact that even though the Brisker method fails to explain what the historical Rambam actually intended, the Brisker method nevertheless succeeds in creating hiddushim that are authentic in their own right. Says Professor Shapiro:
However, one must not conclude from this that because these hiddushim are not historically correct explanations of Maimonides' view, that they are not "true." They are indeed true and as much a part of Torah study as are all other hiddushim. Presumably, R. Hayyim knew that his hiddushim, even though they were consistentwith the words of Maimonides, did not reflect the historically accurate position of the latter. However, uncovering the historically accurate teaching of an author is the work of an historian or a commentator who concentrates on the peshat. It is not the realm of the interpreter, who, by all available measures, produces hiddushim, however much he denies that his interpretative endeavor should be characterized as such. Such an expositor is only concerned that his ideas be consistent with the work he is commenting on, the work he is using as a springboard for his hiddushim. He is not interested in original intent. In his mind, a book has a life of its own and can be interpreted on its own terms.
Recently, Rabbi David bar Hayim taught Rav Kook's hakdama to his Ein Ayah. There, Rav Kook distinguishes between perush - the original intent of the author - and biur - expository drash beyond what the original author intended. Rabbi Bar Hayim says biur is perfectly legitimate and true, as long as one realizes that one cannot claim the original author's authority is attached to one's drash. Similarly, says Rabbi Aharon Lichtenstein, as quoted by Professor Shapiro (op. cit.), one cannot claim that one's Brisker-style hiddushim have the authority of the Rambam himself behind them.
Professor Wyschogrod, reviewing Professor Marvin Fox on the Rambam, in Tradition 28:2 (1994) says,
Contemporary French and German philosophy is particularly aware of the complexity of the interpretive enterprise itself. Fox seems to think that the criterion of a correct interpretation of Maimonides is Maimonides' intention and almost nothing else. The author is the sovereign owner of his work and the task of the interpreter is to try to fathom, as best as he can, what the author meant when he wrote. But once a work is written, it embarks on a life of its own. The author is not a privileged interpreter because an author may be quite unaware of significant issues lurking in the margins of his work. The midrashic method is so interesting because it frees itself from searching for "the" meaning of the text because it understands that interpretation is an interplay between text and interpreter with the interpreter sometimes playing a more important role than the author. The very notion that a text is created by a sovereign author is itself questionable. Often, the author is the instrument through whom complex linguistic, structural and symbolic systems express themselves. The simple search for the "intention" of the author is an unreflective stage of interpretation.
Professor Shapiro (op. cit.) notes,
Furthermore, it is possible that an author is not aware of all the wisdom contained in his work. This idea is well established in literary circles, which stress that the most reasonable interpretation is not necessarily identical with the position of the author. Although the notion that an author understands his words better than everyone else would appear to be self-evident, and most intellectual historians still operate in this fashion, modern literary and philosophical thought argue that even the author does not recognize all that is found in his work, both in terms of backround and motivation as well as content.
Professor Haim Kreisel applies all this to the Kuzari: Understanding Judah Halevi's Kuzari. Kreisel says that in the quest to achieve the perfect historical reading, one not only loses the living edifying meaning, but also, he says, it isn't possible to achieve anything more than a range of historically *possible* readings, none of which can be proven as the definitively correct one. He seeks a compromise, a philosophic post-modernist reading which nevertheless is restricted by what the historical view considers legitimate. See also Professor Adam Shear's book The Kuzari and the Shaping of Jewish Identity, 1167-1900, in his introduction.
R' Rich Joel once ([Avodah] What is Midrash?) brought http://www.vbm-torah.org/archive/midrash69/01midrash.htm, saying:
Underlying all of these rabbinic reading strategies is a common underlying assumption about the biblical texts, and perhaps texts in general, that is quite different from modern conventional wisdom. We tend to think of texts as containing specific meanings. The act of reading a text is then the process of decoding this meaning and revealing it to ourselves and others. The rabbis do not understand the process of reading the Bible in this way. For them the text contains only the potential for meaning. In their view, in reading the biblical text we actually generate meaning from out of the raw material that is the Bible. In principle any given verse can produce infinite meaning. Indeed, Chazal tend to seek as much meaning as possible from each and every verse. This does not of course mean that the biblical text may mean anything we want it to. Quite the contrary, only rabbis who are trained in the traditions and ways of Midrash know the proper way to grow the meaning of the text.
Professor Shapiro (op. cit.) also discusses the fact that often, we pasken by the book (Yad, Shulhan Arukh), and not the person (ignoring Rambam's own teshuvot explaining the Yad, ignoring R' Karo's own works when they contradict the SA, etc.). In like vein, see the following article by Rabbi Tzvi Freeman of Chabad.org, regarding moral difficulties in Hazal and Tanya: (1), (2) (Two-parts):
It strikes me that we Jews tend to think of books as more real than people. What I mean is that if the Rambam would walk into the room and start arguing with a typical rosh yeshiva, he would probably ask one of his talmidim to “bring me the Rambam.” It doesn’t matter that the Rambam is standing in front of him—the real Rambam is the book. Just as the real Moshe Rabenu is not the flesh and blood tzadik who lived 3300 years ago, but the Moshe Rabenu who appears every week in the Torah we read in shul.
What I mean to bring out from this is that, in concert with the post-moderns, to us, the word—and therefore the interpretation—is everything. And this it turns out is a very powerful mechanism to adaptation. It means that we do not have to concern ourselves with the original intent of the authors, whether they be rishonim or tannaim. Our concern is with the meaning of the text. That’s where we believe Hashem’s Divine Spirit rests, as the Beis Yosef would write, “This is the mishna speaking in my mouth.” Or as the prophet said, “The spirit of Hashem speaks within me and His words are on my tongue.”
I am saying that we are permitted to reinterpret chazal as time progresses and as the people around us begin to conform to the morals they have gleaned from our Torah. I don’t think this is heresy—I think this is what we have been doing all along.
Something similar to this would be apparent from the philosophy of Rabbi Tzadok haKohen of Lublin. In "R. Zadok Hakohen on the History of Halakha" (Tradition 21:4, Fall 1985), Professor Yaakov Elman describes how according to Rabbi Tzadok, the Oral Law is such that although Moshe received the whole Torah at Sinai, it was all in potentia (b'koah), and only later did Rabbi Akiva (based on Menahot 29b) bring it out into actuality (b'po'al). Elman then writes,
The process [of bringing that which was inchoate (b'koah) out into actuality (b'po'al)] did not end here [with the writing of the Talmud]. Each successive effort of codification of Oral Law added to the Written Torah, and each code, as it became part of Written Torah, generated still more layers of innovation in Oral Torah. In practical terms, each portion of Oral Torah as it was reduced to writing generated new commentaries whose authors approached the newly incorporated work as the sages of Oral Torah had approached the original Written Torah. Thus, if we may be permitted to draw out the line ofreasoning a step further, the Amoraim applied to Mishnah methods similar to their creative reinterpretation (derasha) of Written Torah, the Rishonim continued the process on Talmud as a whole, and the Aharonim used the works of the Rishonim as a point of departure and treated them the same way. And the process continues apace. Progressive revelation continues through the medium of sage and text.In other words, just as Rabbi Akiva brought the Oral Law into actuality from its being potential in the Written Law, so too the Amoraim did to the Mishnah, the Rishonim to the Amoraim, and the Aharonim to the Rishonim. Each generation brings potentiality to acutality, koah to po'al. Some sort of post-modernism is clearly demanded.
Regarding post-modernism, as exemplified in Shapiro, Wyschogrod, Freeman, Kreisel, etc., my mind is still not entirely made up. The objective historical approach naturally appeals to my sensibilities, but somehow, the post-modernist approach is so absurd-sounding, that I feel I must believe it. (No one would say something so counter-intuitive unless it was true! I never understood this aphorism until now.)
First, I'd note that the historical approach, in a peculiar way, actually assumes a bit of post-modernism. If one assumes that historical circumstances beyond the author's control influenced his view, and if one assumes that the author himself is not totally aware of these historical factors, then the upshot is that the author himself is not totally aware of all the influences on his writing. Professor Shapiro notes that this is the issue which separates traditional halakhists from historians, and that this distinction is what lies between Frankel and Rabbi Hirsch, and also between the Hildesheimer yeshiva and Rabbi Hirsch. Professor Shapiro discusses this - albeit without any mention of post-modernism - in a review essay of his, “The Uses of Tradition: Jewish Continuity in the Modern Era, Jack Wertheimer, ed. (Jewish Theological Seminary of America, 1992) 510 pp. Halacha in Straits: Obstacles to Orthodoxy at its Inception , by Jacob Katz, Hebrew (Magnes Press, 1992) 287 pp.", Tradition 28:2 (1994), the very same issue, in fact, containing Wyschogrod's review of Fox (op. cit.). Regarding the traditional and historical views, Professor Shapiro there writes:
In other studies Katz argues that, in the absence of convincing halakhic sources with which to refute the Reformers regarding issues such as yom tov sheni and metzitza, the halakhists came up with novel ideas and sources, giving the practices an entirely new basis and often classifying what used to be regarded as a secondary detail, e. g. metzitza as a central religious obligation. There is little doubt that, if asked, the nineteenth century posek would deny that his categorizing of metzitza as central to the commandment of circumcision has anything to do with the Reformers. As far as the halakhist is concerned, if metzitza is shown to be an indispensable ritual, than it has always been indispensable. The halakhist would never agree that he has taken liberties with the sources because of religious or social pressures. However, the historian tries to explain trends and understand why it is only in this particular generation that metzitza assumes such central importance. Furthermore, as Bernard Bailyn has so correctly noted, "the very possibilty of historical explanation lies in the differences between the perspective and range of knowledge of participants and those of the historian."  It is the historian who views the halakhist as having been pressured by forces beyond him, and often not even apparent to him, into a sometimes radical reinterpretation of sources [Emphasis added - M. M.], all in order to justify what in his mind is essential to prevent the breakdown of traditional Judaism.
 See Gordon S. Wood, "The Creative Imagination of Bernard Bailyn," in James A. Henretta, et ai, eds., The Transformation of Early American History (New York, 1991), p. 41. My thanks to Dr. Edward S. Shapiro for bringing this valuable essay to my attention.
Unlike the historian, the halakhist believes that every decision rendered has always been inherent in the traditional texts, just waiting to be derived. Even when the halakhist admits that he is stretching the sources in order to find some justification for a questionable practice (limmud zekhut)-always a noble endeavor-as long as sources can be found the halakhic system has not been undermined in any way.
This basic difference in outlook can be seen again and again when comparing the approaches of the halakhic historian with that of the posek and can be illustrated most vividly by looking at Haym Soloveitchik's description of the Tosafist atttude towards martyrdom. According to Soloveitchik, professor at Yeshiva University's Bernard Revel Graduate School, there were occasions when contemporary circumstances led the Tosafists to create a new legal standard and in so doing were responsible for a radical new development in halakha. Soloveitchik's method of describing halakhic development is shared by such leading scholars as Katz, Ephraim Urbach, and Yitzhak Gilat, all of whom identify with Orthodoxy, and it is this method which is rejected as factually incorrect, and even heretical, by those who do not recognize any real history or sociology of halakha. The dispute is, of course, not new and was one of the basic points of disagreement between R. Samson Raphael Hirsch and R. Zechariah Frankel, and to a lesser extent Hirsch and R. David Hoffmann.
 Katz, however, has called attention to a difference between his approach and that of Urbach; see Halakhah ve-Kabbalah, pp. 344ff. Whereas Urbach speaks of social conditions forcing the rishonim to issue real heterim, Katz views the rishonim as doing nothing more than providing a halakhic imprimatur for what was already common practice. Soloveitchik's approach is in line with that of Katz.
 Yonah Emanuel, in his review of Yitzhak Gilat's Perakim be-Hishtalshelut ha-Halakhah (Ramat Gan, 1992), in Ha-Maayan 33 (Tishrei, 5753), pp. 42-49, correctly senses that the lattets approach follows in the footsteps of Frankel, and therefore Emanuel disqualifies his book from the realm of faithful Torah scholarship. Gilat, ibid. (Tevet, 5753), pp. 51-57, replies to a number of Emanuel's specific points but does not deny that his approach is similar to that of Frankel. The implication is clear, namely, that the realm of faithful Torah scholarship is much wider than what Emanuel believes it to be.
But I'm still not convinced of this post-modernist approach; it still leaves a foreign taste in my mouth. My general approach seems to be something like what Rabbi Bar Hayim says: perush (Rav Kook's term in the hakdamah to Ein Ayah for peshat analysis of the author's intent) and biur (expository drash) are both legitimate, but one must admit which is which. Similarly, Rabbi Aharon Lichtenstein, as quoted by Shapiro, who said that Brisker analysis is legitimate as one realizes one cannot put Rambam's name behind the final view.
So what I seem to do in practice is to utilize whatever historical knowledge I have to determine what Rambam or someone himself actually meant, and then I'll also add, alongside that, whatever I personally think, or whatever I'll personally do with what Rambam said, or what I personally think of when I think of Rambam's view, etc.
For example, regarding the clarifications Rambam himself gave regarding his own halakhot, I'd probably note that Rambam himself explained like that, and then I'd add that perhaps the halakhah can also be explained in another way, in a way that I personally prefer.
Similarly, when I learned Shemonah Perakim, I found myself noting the Aristotelian sources of Rambam, and then I'd tweak Rambam's view to be less Aristotelian and more German Neo-Orthodox. I'd try to draw a distinction between Rambam himself meant, and the way that I was personally utilizing Rambam for my own purposes.
In this way, one can be both historically accurate and still render the work a living breathing one with edifying benefit; the conflict between these two goals is discussed by Kreisel on the Kuzari, op. cit. Kreisel says that in the quest to achieve the perfect historical reading, one not only loses the living edifying meaning, but also, he says, it isn't possible to achieve anything more than a range of historically *possible* readings, none of which can be proven as the definitively correct one. He seeks a compromise, a philosophic post-modernist reading which nevertheless is restricted by what the historical view considers legitimate. Cf. what we saw about Midrash above:
This does not of course mean that the biblical text may mean anything we want it to. Quite the contrary, only rabbis who are trained in the traditions and ways of Midrash know the proper way to grow the meaning of the text.So historical objective meaning and author's intent can still provide guidelines and limitations to post-modernist (or classical-era Hazalic?) interpretation.
At http://www.aishdas.org/avodah/vol26/v26n122.shtml#02, R' Joel Rich has an interesting response to the second quotation of Professor Shapiro above, s. v. "However, one must not conclude...":
[This] is fascinating in its own right. The results of implications not dreamed of by the author receive greater weight than the more likely original intent of the author. Yet the weight given is based on the original author. Implication - HKB"H "inspired" the authors in every generation to write in a way that someone could read more into it than the author intended but this undreamt implication is amita shel torah! (or HKB"H really doesn't care about the actual result, just the process)See also R' Micha Berger giving a trenchant criticism of my position, at http://www.aishdas.org/avodah/vol26/v26n122.shtml#15. To summarize his points briefly:
1) The academic approach is trying to objectively look in from without, whereas the traditional perspective is looking from within the system itself, being part of that system.
2) Elu v'elu does not meant the original intent does not matter; rather, all the valid viewpoints are all part of the original intent, each arriving at one piece of a larger whole. When the Brisker method ahistorically interprets Rambam, their conclusions are valid because Rambam himself was interpreting a greater halakhic system, one larger than him. Rambam was interpreting an encompassing system he could not fully capture, and therefore the Briskers can reinterpret Rambam, as part of interpreting this greater system. They are offering different descriptions of the same phenomenon. Similarly, says R' Micha, one physicist can find implications in the work of an earlier physicist, implications that the earlier physicist never realized. The reason, of course, is that physics is an objective reality beyond the physicists themselves.
R' Yitzhak Grossman replies bluntly (http://www.aishdas.org/avodah/vol26/v26n123.shtml#01:
For the record, while I utterly reject this post-modernist stuff out of hand, Shapiro, in an appendix to his Studies in Maimonides and His Interpreters, cites a number of passages of R. Y. Y. [Yehiel Yaakov] Weinberg where he seems to take exactly this view of Brisker lomdus, that R. Haim's interpretations of Rambam are not correct as a matter of original intent, but that they are nevertheless valuable as brilliant hiddushe Torah in their own right. Once again, I do not understand this position at all.