Lecture from 21 Cheshvan 5767

[Rabbi Michael Abraham] We’re talking about an article that was published in HaTzofeh a week ago, which also basically proposes some sort of change in Jewish law, and that’s why it may now be worth addressing. All right, let’s start first with Maimonides — maybe just a few words of summary. We talked about two roles of the sages. One role is the sages as legislators, and the second role — there’s a page there — and the second role is the sages as interpreters. The sages as legislators: the product of that legislation is rabbinic law. And when they function as interpreters, then the product of the interpretation is basically Torah-level law. We talked a bit about the question of where they derive their authority from, the sages. We came to the conclusion that — depending on what we’re talking about — regarding interpretation, according to all views their authority comes from the verse “Do not deviate.” Regarding legislation, Maimonides claims that it also comes from “Do not deviate”; Nachmanides disagrees with him, but doesn’t really say what he himself proposes instead. In the end, our conclusion was that it is entirely possible that there is actually no dispute at all between Maimonides and Nachmanides, and that both of them basically mean the same thing: that the verse “Do not deviate” actually serves a different role, or functions differently, from other command verses in the Torah. Regular command verses — what they say, their content, is itself the transgression. It is forbidden to eat pork, so someone who eats pork has violated that prohibition. That’s what we might call a normative verse. It’s a verse that establishes a prohibition. Commandment verses are also normative verses, as distinct from descriptive verses, declarative verses, which are not commanding verses and don’t contain norms. The verse “Do not deviate” is a kind of intermediate-status verse, because in practice it does have an element of command: someone who rebels against the sages, who does not accept their authority in principle, violates the prohibition of “Do not deviate.” But in the ordinary functioning of the verse “Do not deviate,” it is actually more like even a declarative verse than a command verse. Meaning, it is a verse that reveals to us that the sages have authority. And what does that revelation do? From that point on, we understand that when the sages institute some enactment or issue some decree, that has authority and we need to obey them. But unlike an ordinary command verse, when we violate that enactment — if the sages said not to eat poultry with milk, then if we eat poultry with milk, had this been an ordinary command verse, we would be violating “Do not deviate,” a Torah-level prohibition, even though in essence not eating poultry with milk is only a rabbinic enactment or decree. But because this verse is not really a command verse — both according to Maimonides and according to Nachmanides, and I remind you, I think both of them say this — then basically this verse only reveals to us that there is another kind of command, namely rabbinic commandments or rabbinic prohibitions, and one who violates them violates a rabbinic prohibition and not a Torah-level prohibition. That is really the root of all the confusion around the dispute between Maimonides and Nachmanides. This is true both regarding legislation and regarding interpretation. Meaning, regarding rabbinic laws, “Do not deviate” only reveals that those instructions must be obeyed, but their halakhic status is rabbinic law and not Torah law, because the verse only reveals — the verse does not command. And regarding interpretation, there too the verse basically functions the same way. Even though when I violate a prohibition that emerges from interpretation, I have violated a Torah-level prohibition — but which Torah-level prohibition have I violated? Not “Do not deviate.” For example: “The Lord your God shall you fear” — to include Torah scholars. And someone who does not honor Torah scholars, who does not fear Torah scholars — after all, that is a derivation. “The Lord your God shall you fear” does not explicitly say in the Torah that one must fear Torah scholars. The sages derive from the word “et” that one must fear Torah scholars. Fine? So now I did not fear a Torah scholar. On the face of it, that is the neglect of a Torah-level positive commandment, right? Meaning, one must fear Torah scholars as well, and someone who does not, whatever exactly that fear means, has neglected a Torah-level positive commandment. But clearly — which positive commandment am I neglecting here? “And you shall do according to all that they instruct you”? No. I am neglecting the positive commandment to honor Torah scholars, or to fear Torah scholars; not “Do not deviate,” if that is a prohibition, nor the positive commandment of “according to all that they instruct you.” So that means that even with respect to interpretation, despite the fact that the transgression I commit will be a Torah-level transgression and not a rabbinic one — unlike legislation — still, the verse “Do not deviate” functions in the same way. “Do not deviate” is not the prohibition that I transgress, even on the Torah level. Meaning, even when I violate a Torah prohibition, I have not violated “Do not deviate”; I have violated the content of the specific prohibition that the sages derived. That’s more or less what we discussed last time. All right. Before that we had already talked a bit about changes in Jewish law, about the implications, what mechanisms exist at all, what mechanisms do not exist, that there has to be some change in reality even to begin entertaining a change in Jewish law. We talked about value change, about factual change, all those things. I’m reminding you of this because in Maimonides all of it comes into this chapter, and therefore it’s important to go through it in order to summarize our introduction. So let’s begin with Maimonides, chapter 2, law 1 of the Laws of Rebels: “If the Great Court derived, by one of the interpretive methods, according to what appeared to them that the law is so, and they judged accordingly, and another court arose after them and another rationale appeared to it to overturn it, to overturn that law — it may overturn it and judge according to what appears to it, as it is said, ‘to the judge who will be in those days’; you are obligated to follow only the court of your own generation.” Meaning, the sages in every generation can determine for themselves — the authorized court in every generation can determine — any law as it sees fit, with no connection whatsoever to the question of what a previous court did. Even if the previous court was greater than it in wisdom and number and whatever else you want, that doesn’t matter at all. Every court in every generation can do what — not only can, it must — do what appears right in its eyes. Where were all those reservations stated, about a court greater in wisdom and number? And here there are some disputes, but generally, in order to overturn the words of one court, you need a court that is somewhat greater in wisdom, in number, in both — depending on what we’re discussing. There are various disputes that we won’t get into here. That was said only about rabbinic laws, not Torah laws — or in the language we used earlier, only about legislation and not about interpretation. Meaning, when the sages interpret the Torah or derive through one of the interpretive methods by which the Torah is expounded, or by interpretation — if another court comes today, say an authorized court that is accepted by our generation today — by the way, I think there is no reason to assume it also has to be ordained; it can change everything according to what appears right in its eyes. It can decide that there are two primary categories of labor on the Sabbath. There’s nothing preventing that. If that is really how it appears to them, if that is what appears right to them, they can decide there are two primary categories and not thirty-nine. There is nothing preventing that. It does not need to be greater either in wisdom or in number or in anything at all. What appears right to it is what it does. All the reservations that it must be a court greater in wisdom and number apply only to enactments. In other words, in our earlier terminology: to legislation. Meaning, if a court legislated a law — which in our terms is called rabbinic law — then a second court that wants to repeal that law must be greater in wisdom and number. Without that it cannot repeal the earlier law. We’ll see later various expressions of this principle. That’s what Maimonides says here. There are proofs for it from the Talmud; here and there there are those who question it, but it’s pretty clear that in the end this is the Jewish law. People tend to mix up these two situations a bit, so you need to know: with respect to interpretation, the freedom is absolute. Meaning, every court does what appears right to it. There is no limitation. Every authorized court — and by authorized I don’t mean ordained, but the great court of the generation or something like that. Ordination I don’t think is required, at least it’s not written anywhere. With enactments, there are qualifications. Let’s read law 2: “A court that issued a decree, or instituted an enactment, or established a custom, and the matter spread throughout all Israel —” there are customs established by a court, not customs that grow up from the public; there is also that kind of custom — “so whether an enactment or a decree or a custom, and the matter spread throughout all Israel, and another court arose after them and sought to nullify the words of the earlier court and uproot that enactment and that decree and that custom — it may not, unless it is greater than the earlier one in wisdom and number. If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot nullify its words. Even if the reason for which the earlier ones decreed or enacted has lapsed, the later ones cannot nullify it unless they are greater than them.” All right? Meaning, regarding rabbinic law, regarding legislation, there is a limitation. Not every court can just do whatever it wants and repeal previous things. To enact — yes, every court can enact, contrary to the convention that has taken hold in later generations. I don’t understand exactly why today we supposedly cannot enact decrees or enactments. I have no idea where that notion comes from. It has neither root nor branch. But regarding repeal of earlier enactments, there is a clear limitation here: only a court greater in wisdom and number. And how can they be greater in number? Since every court, the authorized court, is seventy-one — yes, Maimonides asks: every court in every generation is seventy-one, the authorized court, the Sanhedrin in periods when there is a Sanhedrin. So how can it be greater in wisdom and number? In wisdom, fine. But in number? So he says: this refers to the number of the sages of the generation who agreed with and accepted the matter that the Great Court said, and did not dispute it. Meaning, there is some significance to the body of sages sitting outside the court — to what extent there is agreement with the court’s decision. All the sages around it are counted for this purpose as well. And you already understand that this cannot be arithmetic. Meaning, how exactly do you count? Who exactly counts as a sage? Someone sitting on the court is a clear definition. Whoever sits on the court sits on the court, and whoever doesn’t, doesn’t. But what does it mean, the sages of that generation — and how many sages? It depends where we put the threshold. If the threshold includes little schoolchildren, then the number of sages who agree with the court’s enactment today will be in the thousands. The threshold determines the number. So how exactly do you set the threshold? And here already lies part of the difficulty that sometimes gives rise to various polemics. What counts as the agreement of all the sages of the generation? Or to what extent can one really check whether this was more or fewer than a previous court — greater in number or not greater in number? The commonly accepted assumption, I think, is that if the majority of the sages of the generation agree, that means there is a majority here such that one can also alter the words of an earlier court in terms of number. In terms of greatness in wisdom, that’s another story. And it is commonly accepted that over the generations wisdom declines. And since that is so, this law is basically rather theoretical. It’s rather theoretical, because greater in number might happen, but greater in wisdom — at least according to the accepted assumption — that almost never happens. By the way, there’s a well-known saying of the Chafetz Chaim — Rabbi Elchanan brings it in his name, Rabbi Elchanan Wasserman — that throughout the history of Jewish law there are periods. There are periods, sealing-off points of periods, and then a new period begins. The Tannaim — Rabbi Yehudah HaNasi sealed the Mishnah, and then the period of the Amoraim began. The Amoraim — Ravina and Rav Ashi sealed it, then came the Savoraim, the Geonim, the medieval authorities (Rishonim), the later authorities (Acharonim). And every such period has some sealing of the previous period and the beginning of a new one. It is accepted that the sages of the new period do not dispute the sages of the earlier periods — we’ll get to that in a moment. But the Chafetz Chaim comments that usually, at the end of every such period, there sits someone who breaks the monotonic decline. Meaning, usually there is a decline of the generations, and then at the end of the period suddenly there is someone greater than all his predecessors, and then the period gets sealed. He points to Rabbi Yehudah HaNasi, he points to Rav Ashi, well, some point to the Shulchan Arukh, Maimonides — depends where you draw the lines between the periods. Usually after he said this, people already divide the periods according to those individuals. But Rabbi Elchanan says that the Chafetz Chaim himself also sealed some sort of period. But that’s just an interesting aside. It means there can indeed be a practical situation of a court that is later and yet still greater, even according to accepted beliefs. So we have the Chafetz Chaim on our side if we want to argue that, and then everything is fine. All right, so what we really see here is that Maimonides distinguishes between the role of the sages as interpreters and as legislators. As interpreters they have complete freedom; there is no limitation at all about greatness in wisdom and number. As legislators, they need to be greater in wisdom and number. What is the point of this? Why is there such a difference? If really, let’s say — where does the problem arise? Let’s say there is a court that is lesser in wisdom, even in number if you like, and it wants to interpret the Torah differently. It wants to decide that there are only two primary categories of labor on the Sabbath and not thirty-nine. According to Maimonides it can. So what’s the problem? Our problem is that maybe it’s mistaken. If it’s lesser, maybe it’s mistaken. After all, why should it need to be greater? Presumably because it is more right. Well then, why for interpretation do you not need to be more right or more true, while for legislation — for repealing legislation — you do? It seems to me that here we get into issues we talked about a bit last year. We talked about this in the context of the pluralistic appearance of Jewish law. Jewish law has some sort of appearance — not entirely just an appearance — it appears pluralistic. There are many, especially in recent years, who really like that and take it a bit too far. But it seems to me that the focal point where there is some misunderstanding in the perception of halakhic pluralism is the following point. We defined then, last year when we talked about this, essential pluralism and non-essential pluralism. Essential pluralism basically means a multiplicity of correct positions. Meaning, there can be more than one correct answer to the same halakhic question. The same debates exist in law as well. Very, very. Right. So the modern interpreters I mentioned earlier tend to view halakhic pluralism as essential pluralism — that there is basically a multiplicity of correct positions regarding the same question. “These and those are the words of the living God,” and the House of Hillel did not refrain from marrying into the House of Shammai, and so on. Meaning, you see that full legitimacy is given to opposing positions. It seems to me that this is not the case. And I think not only is that not the case — I think there is complete consensus that it is not the case. Meaning, there is no view that really understands this pluralism as essential pluralism. Even on this very question there is no pluralism — on the question of how to interpret halakhic pluralism. Meaning, I think that all the views are different shades of the same conception. And that conception is that there is one halakhic truth, only truth is not always the only parameter that determines how we should behave. For example: why was Jewish law not ruled in accordance with Rabbi Meir? The Talmud says because his colleagues could not get to the depth of his reasoning. That’s really strange. Meaning, he was the greatest sage of that generation. Nobody understood — “could not get to the depth of his reasoning” clearly means that he was several levels above them — and therefore Jewish law was not ruled in accordance with him. That’s the opposite of logic. Meaning, if he was such a great sage that obviously no one could argue with him — they couldn’t even understand him — then fine, certainly Jewish law should be ruled like him everywhere. What do you mean they didn’t rule like him? So if the criterion really were truth, then the conclusion absolutely should have been that one must rule like Rabbi Meir. But maybe there is another criterion, and that criterion is to do what we understand. And that is no less important than doing what is objectively true. And therefore, if Rabbi Meir says things that we do not understand, then we do not rule like him. Not because he does not have the truth, and not because what we say is also true. No. He is right and we are wrong. But Jewish law tells us: if you do not understand the truth, then do what you do understand. I brought the well-known Maharal in Netivot HaTorah. The Maharal writes that what is preferable in the eyes of the Holy One, blessed be He, is someone who follows rulings on the basis of his own analysis of the passages, even if he is mistaken, rather than someone who follows books of rulings, even if he is right. Do you hear that? Meaning, to desecrate the Sabbath. Better to desecrate the Sabbath based on my own reasoning, even though the truth is that I really am desecrating the Sabbath — because I’m talking about people greater than me. To rely on books of rulings is usually to rely on Torah scholars greater than me. I’m not just relying on books written by, I don’t know, somebody random, right? Usually people rely on books by great Torah scholars. And he is certainly discussing books of the great early authorities. There is also a responsum of Ri Migash discussing the books of the Geonim in the same context. So he says: true, it is entirely likely that you are mistaken if they are greater. So what? You need to do what you understand. And what does that mean? It does not mean that everyone is right, or that there is no truth. Anyone who looks at the Maharal will see that in every line, a hundred times over, he mentions three times that there is truth and one must be careful not to err, and so on and so on. But what follows? Truth alone does not determine how to act. Meaning, when I decide how to act, I need to take into account other parameters besides what the truth is. I also need to do what I understand. And that is no less important — and maybe sometimes even more important — than what the truth is. Of course, where I don’t have a clear position, that’s different. If I don’t have a clear position, or I don’t understand enough, then I go to someone who does understand. But if I have studied the passage and I do have a clear position, then I am supposed to do what I arrived at from the passage, and not what the Chafetz Chaim arrived at. Even though there is a good chance that he is right and I am wrong according to the parameter of truth. And we explained there — we even brought halakhic proofs for this: error in judgment, error in an explicit Mishnah, “do not place a stumbling block,” those who remember, remember; those who don’t, I direct you to an article I once wrote on it. Why am I mentioning this? Because I think this is what underlies Maimonides’ distinction between the first two laws here. In the dimension of interpretation, in Torah-level law, what matters is not only the truth. It is not only what the correct interpretation is. Rather — yes, of course he thinks this is the truth; he is not doing something he himself knows is not true, that would be nonsense. Obviously he means to do — he strives as much as he can to reach the most correct interpretation in his eyes. It’s only that if he looks at the issue from the outside, he says: fine, but Maimonides thought differently, so who is more likely to be right — me or Maimonides? Most likely he was right, correct? But that is not what you are supposed to do. That is not what you are supposed to do. Meaning, if your conclusion is a certain interpretation, that is what you need to do. You must strive with all your ability — from the standpoint of your consciousness, you are striving as much as you can for the truth. But when you look from the side, you understand that even if you did not arrive at the real truth, that is not terrible, because you are obligated to do what you concluded. That is exactly what Maimonides says here too in law 1. Maimonides says: in interpretation, the goal I strive for is my truth. Not the actual truth. And there is an actual truth — not that there is a multiplicity of truths. There is an actual truth, and I may be mistaken. But I strive for my truth. And therefore, even if I am lesser than an earlier religious court, if I think they were mistaken, then I need to act according to how I understand things. Jephthah in his generation is like Samuel in his generation — that is what Maimonides brings here. But regarding legislation — there this is a question of authority. It is not a question of who is right, because legislation is not making some interpretive claim. Meaning, in an interpretive claim either I’m right or you’re right; the question is what the Torah means. So an interpretive claim means either I’m right or I’m mistaken. So when I look for the truth, I’m operating on the plane of interpretation, and there I say that one must not seek only the truth, but one’s own truth. Regarding legislation, the question is not what the truth is, but who has the authority. Authority is already a question of being greater in wisdom and number. Meaning, if the earlier court was greater in wisdom and number, I have no authority to disagree with it. Of course there is logic behind enactments, it’s

[Speaker B] Couldn’t you have thought exactly the opposite? Right. Logically you could think the opposite. That in interpretation — what did the Torah say — what really matters is what the Torah meant. But an enactment is an enactment that fits each generation for its own time,

[Rabbi Michael Abraham] And in fact you could say that that’s even the more intuitive thought. That’s why I’m sharpening the point.

[Speaker B] And also to add: there could be another situation, where in order to institute things for a changing reality, you might think to do it through legislation because that’s the more suitable tool. So if that’s the case, then you’ll bypass it by doing it through interpretation. No.

[Rabbi Michael Abraham] My assumption is that generally people maintain intellectual honesty. Meaning, if you can’t do it through interpretation, you won’t do it just because you can’t manage to do it through legislation.

[Speaker B] Intellectual honesty in the sense that times change, and sometimes you also need different measures, so what do you do? How?

[Rabbi Michael Abraham] But what do you do if the times change, but the interpretation that genuinely seems right to you — without all the surrounding agendas — is an interpretation that doesn’t fit what you would want as an interpreter? Then you have two options: either legislate

[Speaker B] or

[Rabbi Michael Abraham] or think of changes.

[Speaker B] So they don’t let me legislate

[Rabbi Michael Abraham] because I’m not greater in wisdom and number.

[Speaker B] They don’t let me repeal legislation. To legislate — you can.

[Rabbi Michael Abraham] But in meta-Jewish law, again, everything depends on whether you really hold by that interpretation. Meaning, do you really think this is a credible interpretation? Honesty is essential. Otherwise I can do whatever I want. Meaning, in the end, if I come to some conclusion that a certain thing is worth doing, there is no problem — I can always find an interpretive process that will get me there. That’s very easy. I think in the end we have no choice — we have to be subject to some rules of interpretive honesty. As an interpreter I need to ask myself: would I say this even if the circumstances did not require me to reach this conclusion? If yes, then there is no problem — you can do whatever you want.

[Speaker B] Fine, but that creates a very problematic situation. Very problematic. Because when people want to do things that are reasonable and sensible and suitable, legislation isn’t possible because you’re not greater in wisdom and number.

[Rabbi Michael Abraham] Repealing legislation isn’t possible. Repealing legislation isn’t possible.

[Speaker B] Yes. What? Fine. You can legislate.

[Rabbi Michael Abraham] You can’t revoke earlier legislation. That’s a real problem. We’ll see an example of this later on, when we talk about copyright. Copyright has a classic problem of this kind, and I think that’s an area where many people fail in interpretive integrity. A lot. And that’s why I don’t like the common approaches on this issue. And that’s exactly the distress Menachem just described. Because on the one hand, in terms of the Jewish laws we received, in the simple view, it doesn’t seem that violating copyright is forbidden. On the other hand, it’s obvious that it has to be forbidden. Meaning, it’s obvious that if the sages were alive today, it would be forbidden. I’d bet on that without even looking for the exact anchor. By the way, Rabbi Moshe Feinstein writes somewhere about electricity on the Sabbath—he raises such a possibility and then rejects it, but he raises the idea that electricity is forbidden because if the sages were alive today, they would forbid it. Not because… You can actually defend that from the sources too, by the way, but that’s for another topic, another time. So regarding copyright—I’ll complete the example—this is a classic case where on the one hand the motivation certainly exists, the need certainly exists; you can’t live like this without forbidding copyright infringement, if Jewish law were the relevant system for our lives today. On the other hand, direct interpretation doesn’t manage to find a root for this prohibition. So first of all, here of course the option of legislation exists. There is no prohibition against legislating. I don’t know where these inventions come from, that you can’t legislate today, as I said earlier. Fine. But today there’s a certain reluctance to legislate, and then we’re stuck in a bind. So what do various halakhic decisors or interpreters or whoever do? Since they don’t dare legislate, they try some rather creative interpretive gymnastics in order to prove that according to the existing sources, copyright really is forbidden. But if in fact this is permitted at the Torah level—say that the Holy One, blessed be He, really thinks this is permitted at the Torah level, and He expects us only to forbid it at the rabbinic level—then what? Are we going to force out a Torah-level prohibition just because we can’t legislate? What, if the Holy One, blessed be He, didn’t intend that, then He didn’t intend that. Meaning, I can’t decide what the correct interpretation is because my goals are very lofty—and they really are lofty. That’s irrelevant. Interpretation has to meet the criteria of interpretation. If I think this is a correct interpretation, or at least a legitimate one, then I can make it regardless of the circumstances. I’ll probably make it when the circumstances motivate me to do so. But the circumstances cannot determine the content of the interpretation. They can cause me to sit and labor over finding an interpretive solution. They cannot dictate the content of that interpretive solution. It can’t be that because I need it, therefore it will be included in “do not steal.” That doesn’t work. Meaning, either it’s included in “do not steal” or it isn’t. There are various halakhic decisors who say this is certainly Torah-level theft, full stop, with no arguments, no nothing. There’s a book, Emek HaMishpat—by a judge from Netanya, in Rabbi Nissim Karelitz’s religious court—and he published several books called Emek HaMishpat; one of them is on copyright, and there he brings a list of dozens of halakhic decisors one after another: yes, it’s Torah-level theft, that’s obvious—and they move on. That doesn’t meet any criterion of Maimonides’ Laws of Sales, and all the argument that there’s no ownership here—it doesn’t meet the simple criteria of Jewish law. How do they do this? How do they say it? I don’t know what they’re hiding behind those words. I assume they don’t want to say that they’re actually legislating here, but that’s what they’re doing. I proposed a solution that in my opinion is also a fitting interpretation, and I think it really can be derived from the sources, but that’s a different discussion. Fine—so what have we said until now? There’s a difference between legislation and interpretation also in the context of how you revoke it, whether the legislation or the interpretation. Regarding interpretation, there’s no limitation at all. Regarding legislation, there is a limitation: the later court has to be greater in wisdom and in number. We connected this to things we talked about last year concerning the status of truth in halakhic rulings. In Maimonides’ words there’s another interesting point. He says: if it was greater in wisdom but not in number—in law 2—greater in wisdom but not in number, or in number but not in wisdom, it cannot revoke his words. Even if the reason for which the earlier authorities decreed or enacted has ceased, the later authorities cannot revoke it unless they are greater than them. Meaning, even if the reason has ceased, the enactment does not cease. And this is a famous Maimonides. By the way, the Raavad disagrees with him here. Yes—“Said Abraham”—the Raavad’s second gloss on this law: “The market adornment of Jerusalem with fruits is difficult for him.” Meaning, the Raavad disagrees with him; he claims that when the reason for the enactment ceases, the enactment also ceases. And today it’s accepted to cite Maimonides on this point. It’s very important in various contexts that also arise today—whether about legumes on Passover, to the extent that’s even an enactment or a custom, it doesn’t matter. What? Yes, shaving on the intermediate days of a Jewish holiday, all sorts of things of that kind that come up today, where people say that the reason has ceased, and if so then there’s no reason for the enactment and it should be repealed. So Maimonides here basically blocks that route and says that even if the reason has ceased, you can’t revoke the enactment unless a religious court comes along that is greater in wisdom and in number. Fine, so the explanation of these things has already been given. It’s known that the Vilna Gaon says there are hidden reasons, and we don’t know all the reasons. To change everything all the time—circumstances are never exactly the same as they were at the time of the original enactors. So that opens a very problematic door to repealing everything. So you can definitely understand this even without mysticism, simply through the desire to preserve rabbinic legislation, to give it a status such that it can’t be revoked too freely.

[Speaker B] But what’s the claim of those who do permit it—for example, shaving? There are major yeshiva heads who instruct their students to do it. What are they relying on? Is there something well known?

[Rabbi Michael Abraham] First of all, there’s the Raavad against Maimonides. That’s first of all. Now, the truth is, it’s not so easy to turn Jewish law into mathematics. There are quite a few—we’ll see this over the course of the year—there are quite a few such enactments that nevertheless passed out of the world. Even though Maimonides says that if the reason ceases, the enactment does not cease, you have to understand exactly how that works. It may be that you need some kind of very clear assessment that if the sages were here today, it’s obvious they wouldn’t want this. Maybe it’s in a case where the enactment is harmful—some say that. Where the enactment is merely irrelevant, where the reason is gone, no matter—you still have to continue. Where the enactment is harmful, then maybe you need to revoke it. So various things have been said about this, and we’ll talk about it a bit during the year. Fine, Maimonides continues; law 3 is less important for our purposes. Law 4: a religious court has the power to uproot—here’s a solution to your problem, Menachem. “A religious court has the power to uproot even these matters temporarily, even though it is smaller than the earlier one, for these decrees should not be more severe than the words of Torah itself, since even words of Torah any religious court may uproot as a temporary emergency ruling. How so? A religious court that sees a need to strengthen the religion and make a fence so that the people not transgress the words of Torah may flog and punish not according to the law, but they may not establish the matter for generations and say that this is the Jewish law. Likewise, if they see a need temporarily to suspend a positive commandment or transgress a prohibition in order to restore many to the religion or save many in Israel from stumbling in other matters, they do according to what the time requires. Just as a doctor cuts off a hand or a foot of this one so that the whole person may live, so too a religious court may instruct at certain times to transgress some commandments temporarily so that all of them may endure”—as the earlier sages said, look at this interesting flash of brilliance—“desecrate one Sabbath for him so that he may keep many Sabbaths.” In other words, Maimonides anchors the ability of a religious court to uproot something from the Torah in the logic of “desecrate one Sabbath for him so that he may keep many Sabbaths.” Because the purpose, after all, is to preserve the Torah, so uprooting in order to preserve the Torah is something possible. Now pay attention to two points here. First point: what kind of religious court is this? That also isn’t fully defined here; it’s not entirely clear. Maybe someone will come and say that “religious court” here always means specifically the Sanhedrin, as Maimonides says above: how do we find a great religious court? It is always seventy-one. So it somewhat looks like he is always speaking about the Sanhedrin, but I don’t think that’s a necessary inference. And if you go and study history, throughout the generations this was done also by religious courts that were not a Sanhedrin. A religious court may flog and punish not according to the law—this is section 2 in the Shulchan Arukh, Choshen Mishpat; you can look there. The Rosh cut off the nose of an adulterous woman; the Rif also imposed corporal punishment. There was permission from the kingdoms of Spain to judge; the Jewish community had judicial autonomy. And when there was an authoritative and major religious court—the Rosh, the Rif, Rabbenu Tam—they were considered the last of the accepted courts, and they punished without any games at all. Meaning, far beyond what pure Jewish law allows. Here, of course, we’re speaking not only about punishment but also about amending Jewish law. Now notice: he says both to suspend a positive commandment and to transgress a prohibition. We know from the Talmud that the sages can uproot something from the Torah only through passive omission, not through positive action. So why here is it possible both to suspend a positive commandment and to transgress a prohibition? Clearly, here Maimonides is speaking about a temporary uprooting. When the sages uproot something from the Torah by passive omission, the meaning is that they establish Jewish law for generations. For example: sounding the shofar on Rosh Hashanah that falls on the Sabbath—the sages established as Jewish law that we do not sound it. That suspends a positive commandment; after all, the Torah commands sounding it even on Rosh Hashanah that falls on the Sabbath, and the sages established as Jewish law for generations that we do not sound it. They uprooted something from the Torah. They’re allowed to do that because it’s passive omission. It’s not to get up and actively do a prohibition; rather, it is simply not to do what we would otherwise do. Here Maimonides is speaking about something else, about a religious court that uproots something temporarily, and he says so explicitly: to uproot it as a temporary emergency ruling, right? “But they may not establish the matter for generations and say that the Jewish law is so.” Okay? Maimonides is speaking only about temporary uprooting, and temporarily you can do anything. And that can perhaps solve some of the problems we talked about earlier: if one sees circumstances that nevertheless require changing the Jewish law, Maimonides says that if this can be done even in Torah law, then certainly in rabbinic law too one may do it, to be lenient temporarily. And therefore it is clear that enactments too can be uprooted temporarily, even if I am not greater in wisdom and in number. Where did this a fortiori argument come from? If in Torah law, then certainly in enactments? After all, earlier we saw that this a fortiori argument doesn’t work so well, right? Because Torah law is actually easier to change than rabbinic law. Suddenly here Maimonides uses an a fortiori argument. Why? Because here we really are not talking about interpretation, about a question of truth. Here it is perfectly clear what the real law is. Rather, because I have problematic circumstances, I want to freeze it temporarily, to change it. Is this a question of authority, or a question of truth? Obviously it’s a question of authority, right? It’s not a question of truth; it’s not the question of what is written in the Torah. In questions of authority, this really is true. In questions of authority, you can make an a fortiori argument as long as both sides of the argument are questions of authority. Okay? There is no system of—

[Speaker B] Isn’t there a Tosafot that says it’s permitted by positive action, not only as a temporary emergency ruling? I don’t remember.

[Rabbi Michael Abraham] I don’t remember such a thing. I remember questions by Tosafot—no, in Nedarim—

[Speaker B] There are, questions by Tosafot on that statement in Yevamot.

[Rabbi Michael Abraham] I remember that on that statement—that they uproot something from the Torah only by passive omission—he brings a whole list of things that were also uprooted by positive action. But he doesn’t say it’s possible, because the Talmud says it isn’t. I don’t remember at the moment how he resolves it there. He raises difficulties from various places, and as we already said, Jewish law is not mathematics; every such rule has exceptions, and the question of how to reconcile them is usually a hard question. Law 5: “A religious court that sees fit to decree a decree or enact an enactment or institute a custom must deliberate on the matter and know first whether the majority of the community can stand by it or whether they cannot stand by it. And one never decrees a decree upon the community unless the majority of the community can stand by it.” Here too there are common mistakes, at least out in the street, so to speak. Rabbi Feinstein once said, “If you want it, that is not Jewish law.” Meaning, if the sages just want enough, then they can do anything—that it’s only a question of will. He said that, of course, as criticism of those who think that way, not because he actually meant that if you want it, that is Jewish law. What is said here is said about decreeing a decree and enacting an enactment. Decreeing a decree and enacting an enactment has a condition: you cannot decree or enact something—that is, in legislation, not in interpretation—you cannot decree or enact something that the public will not be able to uphold. This appears on two levels. In law 6 Maimonides continues: “If a religious court decreed a decree and thought that most of the community could stand by it, and after they decreed it the people questioned it and it did not spread among most of the community, then it is void and they are not permitted to compel the people to follow it.” So here we see this on two levels. First, when the religious court sits and begins to think whether to enact the enactment or decree the decree, they must take into account the consideration of whether the majority of the public can uphold it. If not, they are forbidden to decree it. They decreed it, they estimated that the public could uphold it, they decreed it, and it turns out not so—the public does not uphold it, it did not spread among the public, the public does not stand by it.

[Speaker B] Law 5 speaks about ability, and law 6 maybe speaks about willingness?

[Rabbi Michael Abraham] What do you mean, willingness?

[Speaker B] They can, but they don’t want to.

[Rabbi Michael Abraham] It’s always like that. Maybe later we’ll get to an amusing example on this issue. In any event, the first level is when they enact the enactment—they need first of all to think whether this is an enactment the public will uphold. But that applies only to enactments. In interpretation there is no such consideration. There is no such thing as my giving an interpretation only on condition that the public can uphold it. If that is the interpretation, then let the law pierce the mountain. “There is no counsel and no understanding against the Lord,” as the Talmud says. Here there are no such rules. It doesn’t work when people come to the sages with claims, often enough: wait, but the public doesn’t live up to this. There’s no such thing. Only in decrees and enactments is there such a criterion, not in interpreting Torah-level law. More than that: in law 6 Maimonides says what happens if, fine, the sages enacted it, they thought the public would uphold it, and it turned out not to. The enactment is void, says Maimonides. Not only is it void—you don’t even need a religious court to void it, according to most interpreters of Maimonides at least. You don’t need a later religious court to repeal it. It is simply void; from the outset it never really existed. Other early authorities claim that you do need a religious court, even a small one. There are disputes about this issue. But in principle, the enactment is void. On this—well, perhaps let’s read law 7 too. “If they decreed and thought that it had spread throughout all Israel, and the matter stood so for many years, and after a long time another religious court arose and examined all Israel and saw that the decree had not spread throughout all Israel, it has permission to repeal it, even if it was less than the first religious court in wisdom and number.” So what is Maimonides saying here?

[Speaker B] What’s the case? It didn’t spread. So it isn’t void. And it had force.

[Rabbi Michael Abraham] It has permission to repeal it. And then suddenly it didn’t spread.

[Speaker B] Did it spread or didn’t it spread? That’s the question. They thought—right, they thought. Right.

[Rabbi Michael Abraham] On a superficial reading of Maimonides, it seems that we’re dealing here with an enactment that spread, and then later people stopped observing it.

[Speaker C] After several years?

[Rabbi Michael Abraham] Yes, after some time—it doesn’t matter—generations, years, not important.

[Speaker B] They saw that maybe by then it was already less widespread, it had already started to recede.

[Rabbi Michael Abraham] Yes, meaning it started to recede. At least that’s how it seems on a superficial reading. But it seems that when you read Maimonides more carefully, that’s not what he means. Because Maimonides says they thought it had spread. They thought it had spread, but afterward what did the later religious court discover? Not that at that time it hadn’t spread, but that it never spread. Only then the question arises: so why do you need even a small religious court at all? Seemingly, if it didn’t spread, then the enactment was void from the outset. You don’t need a religious court at all. So according to the interpreters of Maimonides who say that even in the previous law you need a small religious court—even though the enactment did not spread right at the beginning—

[Speaker B] And there’s the difference between “void” and “has permission to repeal”—in law 6 it’s void, like you said, like the Rabbi said that it’s—

[Rabbi Michael Abraham] No, but afterwards he says, “and they are not permitted to compel the people to follow it”—that’s already a somewhat more specific formulation. So some say that the meaning is that it remains in force, but they can’t compel the people; they need to repeal it. According to them, then, there’s no problem—in law 7 too it’s the same thing. But the plain meaning of Maimonides is not like that. The plain meaning of Maimonides is that it’s entirely void. So why here do you need a religious court? Seemingly, that strengthens the interpretation that perhaps it really did spread and only later receded. But it still seems to me that the wording “they thought” shows that it’s not so, and apparently because it was practiced for many years, a religious court must nevertheless sit and repeal it, although in essence there’s no real substantive difference. See the Kesef Mishneh.

[Speaker C] What’s the difference between if the people are unable to uphold the Jewish law and if the people simply didn’t accept it?

[Rabbi Michael Abraham] If the people didn’t accept it brazenly, that’s a different matter. But if the people didn’t accept it—they can—look, if the religious court originally estimated that the people could uphold it, I assume that in general that estimate is correct. Meaning, if you ask the theoretical question whether the people can uphold it, then yes. And therefore, when we now discuss the retroactive question in law 6, we’re not talking about the theoretical question whether the people can, but whether it happened in practice.

[Speaker C] So maybe what caused it to be void from the outset was that the people couldn’t, that the religious court erred in its assessment?

[Rabbi Michael Abraham] Here he doesn’t present it that way.

[Speaker C] Why, in the previous law?

[Rabbi Michael Abraham] He doesn’t present it that way. The difference between the two laws is not presented as: here they didn’t uphold it because they didn’t want to, and there they didn’t uphold it because they simply didn’t uphold it. That’s not how the difference between the two laws is presented.

[Speaker C] Why in the previous law does it say explicitly that the community—

[Rabbi Michael Abraham] Can uphold it or cannot uphold it? Well, and here too. “They thought that most of the community could stand by it, and after they decreed it the people questioned it and it did not spread among most of the community.” The difference between the two laws is not the question of why the people didn’t accept it.

[Speaker C] The difference between the two laws is—

[Rabbi Michael Abraham] That at first they thought it had spread. That’s the difference between the two laws. It doesn’t say that the people couldn’t. No, I’m not talking now about what the correct interpretation is, but whatever interpretation you give has to apply to both laws. It doesn’t distinguish between them.

[Speaker C] No, in law 6 it says they thought that most of the community could stand by it, and then it turned out they couldn’t stand by it; and in law 7 it says they thought it had spread, and it didn’t spread. But the ability to observe it is there.

[Rabbi Michael Abraham] No, not that they thought it had spread at all—what do you mean, in law 6? No, in 7. In law—ah, sorry, yes, you’re right, excuse me. It says, excuse me, right: “they thought that most of the community could stand by it, and after they decreed it the people questioned it,” and here what are you saying? They thought it had spread and it turned out it hadn’t spread. So what’s the difference? That in the first case they really erred in their estimate—the people really couldn’t stand by it. And in the second case the people could have stood by it, but didn’t want to. Maybe. An interesting observation. I don’t know; usually it’s not interpreted that way.

[Speaker B] In law 6, it became clear immediately that they had erred in the estimate. What?

[Rabbi Michael Abraham] In law 6, yes, I think that’s the difference. I think that’s the difference between the two laws. Fine, I don’t know. In any case, the Kesef Mishneh here on law 7—look below, there are two citations from the Kesef Mishneh on law 1 and law 7. On law 7 the Kesef Mishneh asks: “And if you say, how did Rabbi Yehudah Nesi’ah rely on what he checked?” We spoke there about the decree regarding oil. They decreed that the oil of non-Jews is forbidden, and Rabbi Yehudah examined that decree, saw that it had not spread, and repealed it. So the Kesef Mishneh asks: “And if you say, how did Rabbi Yehudah Nesi’ah rely on what he checked? Perhaps in the days of the early authorities it had spread, and afterward people questioned it.” Rabbi Yehudah Nesi’ah lived long after the time of the decree. So how did he know it hadn’t spread? He understood that in his own time it hadn’t spread, but perhaps earlier it had spread and only in his time people stopped observing it? “From this,” says the Kesef Mishneh, “it would have seemed to me to say that even if it had spread at first, since now most of Israel do not practice it, they permit it.” What we said on the superficial reading of Maimonides—that’s what the Kesef Mishneh initially thought to say. But afterward he rejects it and says: “Rather, I saw that Rashi wrote, ‘it had not yet spread’—most had not yet firmly accepted that decree to practice prohibition by it.” “Had not yet firmly accepted”—from his wording it sounds like he checked what had happened in the past. So the Kesef Mishneh’s conclusion is that there is no such thing as: it spread and then later receded. If it spread and later receded, the enactment remains in force, and whoever doesn’t observe it is a transgressor; it does not become void. If the enactment never spread, even if the religious court lived under an illusion for some time, then the enactment is void. And that, I think, is also precise in Maimonides’ language when he says “they thought.” So that may support this as well, although the Kesef Mishneh himself doesn’t bring that point. One final note: we won’t deal now with law 8; that concerns adding to the commandments. In law 1 the Kesef Mishneh makes another remark that is important for our purposes. The Kesef Mishneh asks: why today do we not disagree with the sages of the Talmud and the tannaim? Or why didn’t the amoraim disagree with the tannaim? Why don’t we disagree with amoraim or tannaim? If indeed, as Maimonides says in law 1, in interpretation there is complete freedom, no limitation whatsoever—you don’t need to be greater in wisdom and number—then what’s the problem? So now I’ll disagree with what was ruled in the Mishnah. Why not? Why am I forbidden? It is accepted that one does not disagree with what is written in the Talmud, in the Mishnah, and even in the medieval authorities (Rishonim). So the Kesef Mishneh says: “And if you say, if so, why do not amoraim disagree with tannaim? After all, everywhere we challenge an amora from a Mishnah or a baraita.” Everywhere, the Talmud challenges a statement of an amora from a baraita or from a Mishnah; the simple assumption is that he cannot disagree with a baraita or a Mishnah, which are tannaitic sources. “And it must be said that according to our master’s words, permission was given to them to disagree with the tannaim, and one can say that from the day the Mishnah was sealed, they established and accepted that later generations would not disagree with the earlier ones. And so too they did at the sealing of the Talmud,” etc. In other words, every closing of a period, says the Kesef Mishneh, is in the end simply some kind of acceptance by the public. Some sort of custom—or what exactly is meant by acceptance by the public, that can be discussed—but it’s something like a custom. Perhaps some would say a vow, an oath, a custom—something from that family. But there is no fundamental prohibition against disagreeing. The tannaim and amoraim have no status relative to us; we can disagree with them, just as with prophets. Meaning, there is no limitation whatsoever regarding interpretation. For legislation you need a religious court greater in wisdom and number, but regarding interpretation there is no limitation. So it’s all basically custom—that’s what he says. Fine, but certainly it is a custom, and that custom stands, and people do not challenge it. Up to here, that’s the summary. I just want to finish, I hardly have any time left, with that article I told you about, and we’ll see how some of these things come to expression. We said last week that David Itzkovitch brought it to me last Sabbath; he managed to annoy me on Sabbath. It annoyed him too, that’s fine. In HaTzofeh there was some interview there—a bridal instructor interviewed some gynecologist doctor—and their proposal was to abolish what’s called the stringency of Rabbi Zeira. There is a difference in Jewish law between a menstruant and a zavah, and in the case of a menstruant there is no need for all the days we wait today. There’s no need to wait five plus seven. Only for a zavah do you need to wait that. But the daughters of Israel imposed a stringency upon themselves and behave like a zavah even in the case of a menstruant. Even in a case of a menstruant they took on the stringency of waiting longer, like a zavah. So he claims that the time has come to abolish this matter. Why has the time come to abolish this matter? Actually it’s not clear. He starts by saying first of all that this is only a custom and not law. It’s obvious that fundamentally it’s only a custom. Even though the Talmud says that a person should part from his fellow only amid a settled ruling of Jewish law, and the Talmud discusses what that means, and says: the stringency of Rabbi Zeira. Yes, that’s called a settled ruling of Jewish law.

[Speaker B] No—one should begin prayer only from amidst—

[Rabbi Michael Abraham] Ah, begin prayer, okay.

[Speaker B] It’s there in Berakhot, right? That’s one of the examples, and it’s a clear example of accepting the yoke of the kingdom of Heaven.

[Rabbi Michael Abraham] So what does that mean? That saying this is not Jewish law but only custom is, at least as far as today is concerned, problematic. But let’s say even if so. So what are the circumstances? When you go through the whole article—we obviously can’t go through it now—but when you go through it, you see first of all, point one: nowhere does he say what has changed. We said in the first classes that the ABC of beginning to examine change in Jewish law is first to check: of the circumstances that existed in the period when this law was established, what is different today? And then to examine the various mechanisms we talked about. Nothing is different. He brings nothing. He mentions what is called “halakhic infertility.” “Halakhic infertility” means that the woman’s ovulation period comes before immersion, meaning they cannot have relations during the ovulation period, and so the Jewish law causes them to be infertile, to have no children. And that really is a problem, and in practice, precisely because this is a custom, there is room to be lenient, and where there are problems and people go to halakhic decisors, the decisors know how to handle it, and they do handle it. But that’s his claim. Now, this has existed from time immemorial. It wasn’t invented today. Meaning, this isn’t something where there are new circumstances today because of which we now need to begin considering whether when the reason ceases the enactment ceases, all the things Maimonides says there, whether this is a custom or law, all sorts of things of that kind. But first of all, why even begin dealing with the issue? We said earlier that the basic motivation—the first rule—is to check what changed in reality. Was there a change in values, a change in circumstances, a change in what? Nothing. He also points to no change whatsoever; there is no change in reality that he points to. Second, he speaks here about repealing the enactment. So he says that people say, okay, but this is a Jewish custom, and it’s already fixed in the Shulchan Arukh, and how can one repeal such a thing? So he says that this too is basically some kind of belief—in my terms, a widespread superstition—because actually that’s not true: an enactment that never spread through the public can be repealed. What does “never spread” mean? He says that today there are many traditional Jews, many people who don’t observe this. According to that, you can erase three quarters of the Shulchan Arukh. All the rabbinic laws that appear in the Shulchan Arukh can be repealed. Poultry with milk could also be eaten, because that too is a rabbinic enactment, and most of the public also doesn’t observe it today—not the commandment-observant public, but the public that doesn’t observe commandments. So in effect you’ve abolished all rabbinic laws; you don’t even need to get to the point that this is a custom. After that he says that the sages themselves already questioned this enactment, and the proofs he brings are from Talmudic passages saying that the sages determined that this is a custom and not law. That isn’t called questioning it; that’s called determining that it’s a custom and not law. I simply don’t really understand—there are reading-comprehension problems here, I think. Now, regarding an enactment that did not spread: even if we were to say he was right, that the relevant sphere for the spread of an enactment is really the entire Jewish public and not only the Torah-and-commandment-observant public, we would still enter the question of an enactment that spread and later was pushed aside—a question he ignores completely. Both in Maimonides and according to the Kesef Mishneh’s agreement, if it certainly spread—this enactment was practiced by all Israel always—then even if in the last generation or generations there is already a majority that does not observe it, so what? This is an enactment that spread and afterward was pushed aside. An enactment that spread and afterward was pushed aside cannot be repealed; you need a religious court greater in wisdom and number to repeal it. I’ll spare you as well all the demagoguery along the way about “the bridge of our brothers” and all the other things that always accompany articles of this kind. Who wrote this article? What? Who said the—

[Speaker B] This article?

[Rabbi Michael Abraham] It’s a bridal instructor named Rivka Shimon, who interviews Dr. Roznek, Daniel Roznek, a gynecologist. I don’t know either of them, but that’s what it says here. I don’t know whether I missed much. I don’t want to attack anyone personally, but I think this really is a scandalous article. So fine, one could go into various other points here, but I’m bringing it only as an example, just at the very tip of the fork, to see several points we went through today. First, the status of a custom or enactment is not so simple that you can just repeal it. Even if you go in the direction that the enactment did not spread, you need to check whether it did not spread from the outset, or whether perhaps it spread and only afterward was pushed aside, because if so, then it is still binding. And beyond that, like everything we discussed in the first classes about examining changed circumstances—meaning, why didn’t Rav Ashi and Ravina and the Tur and the Rosh and Maimonides and the Shulchan Arukh and everyone else repeal it? They were in exactly the same situation; nothing changed. So why didn’t they repeal it? There’s a very problematic claim here. Fine, we don’t have time to go into more than that, so we’ll stop here. This is the end of the introduction.

[Speaker B] Next class on Monday, right.