Authority and Change in Halakha, Lesson 9
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Sources of authority in Jewish law and “do not deviate”
- The sealing of the Talmud, acting as their agents, and the authority of the Talmud
- Formal authority versus substantive authority, and the claim of “divine inspiration”
- The Mishnah in Eduyot and individual opinions
- “We accepted them upon ourselves”: the Kesef Mishneh, Maimonides, and the renewal of ordination
- Mara d’atra, communal contract, and the authority of the whole Jewish people
- An anecdote about Mahari Beirav, Rabbi Yosef Karo, and evaluating the validity of ordination
- The Nasi, ordained judges, and the Sanhedrin after the destruction
- The rebellious elder, “the law-status of a Sanhedrin,” and the distinction between a binding analogy and a formal definition
- The Rosh and what happens after the Talmud
- Substantive authority, error in judgment, and the validity of a ruling
- Conversion, “throughout your generations,” acting as their agents, and Tosafot in Gittin
- Customs, ethnic communities, and Zikhron Yosef
- Negligence, inadvertence, and substantive authority as a warning mechanism
- Jephthah in his generation is like Samuel in his generation, being qualified, and autonomy in halakhic ruling
- Codification: Maimonides, Shulchan Arukh, and the later development of “formal authority”
- The Shakh, unresolved Talmudic doubt versus a dispute among great authorities, and a conception of judicial decision-making
- A future Sanhedrin, decision policy, and the value of autonomy
- The circularity of autonomy and the majority of halakhic decisors
Summary
General Overview
The text presents a discussion of authority in Jewish law through a central distinction between formal authority and substantive authority, arguing that binding authority does not depend on the authorized figures “not making mistakes,” but on the formal determination that they must be obeyed. It limits the verses of “do not deviate” to the Sanhedrin and ordination, and explains the authority of the Talmud as something accepted by the public from below, even though in practice there was no longer a Sanhedrin or full ordination, sometimes by means of the principle of acting as their agents. It brings the Kesef Mishneh, the ordination controversy in the sixteenth century, and the figure of Rabbi Yosef Karo, and continues to the Rosh’s view that after the sealing of the Talmud there is no longer absolute formal authority, but mainly substantive authority, customs, and judicial rulings. Later it presents the tension between autonomy and authority, as well as criticism of codification and of the later emergence of an almost “binding” attitude toward Maimonides, the Shulchan Arukh, and various levels of halakhic ruling.
Sources of authority in Jewish law and “do not deviate”
The text states that the sources of authority to legislate and interpret, according to the plain meaning of the verses and according to most approaches, are connected to “do not deviate” and to verses that grant authority only to the Sanhedrin. It presents one unusual approach according to which the authority to decide is always entrusted to the sages of the generations and does not depend on ordination and the Sanhedrin, but argues that this is not the main approach. It emphasizes that the discussion revolves around the question of how binding authority is created for a body that is neither a Sanhedrin nor ordained.
The sealing of the Talmud, acting as their agents, and the authority of the Talmud
The text describes that there is a widespread practice of relating to the authority of the Talmud as a kind of Sanhedrin-like authority, even though there were no longer ordained judges and no Sanhedrin. It explains that some of the laws in the Talmudic period were carried out by virtue of the principle of acting as their agents, as agents of the sages of the Land of Israel, and in later generations this even meant acting as agents of earlier generations, not necessarily of people from the same generation in the Land of Israel. Nevertheless, the Talmud is regarded as binding authority even without the formal infrastructure of ordination.
Formal authority versus substantive authority, and the claim of “divine inspiration”
The text rejects the explanation that bases the authority of the Talmudic sages on the idea that they possessed divine inspiration and never erred, arguing that this is unreasonable because they were human beings and because one can point to mistakes and even contradictions in the Talmuds. It defines authority as a formal concept that obligates obedience even when the authority errs, and compares it to the authority of parliament. It notes that the passage at the beginning of Horayot is more complex regarding whether one must obey even when it is clear they ruled in error and how error is determined, and mentions “on the right that it is left and on the left that it is right” without going into detail.
The Mishnah in Eduyot and individual opinions
The text rejects a reading according to which the Mishnah in Eduyot was meant so that in the future one could rely in practice on the minority opinion, and states that the plain meaning of the Mishnah is that individual opinions were taught so that if a future tradition comes against the accepted law, people will know to attribute it to that individual opinion that was not ruled as law. It adds that medieval and later authorities discussed circumstances in which perhaps one may rule differently, but emphasizes that this is not written in the Mishnah itself. It distinguishes this from a formulation such as “Rabbi Shimon is worthy to be relied upon in pressing circumstances,” presenting that as something else connected to pressing circumstances and determining the law.
“We accepted them upon ourselves”: the Kesef Mishneh, Maimonides, and the renewal of ordination
The text cites the Kesef Mishneh in Laws of Rebels, chapter 2, according to whom the authority of the Talmud derives from the fact that we accepted it upon ourselves, and therefore this is authority that comes from below rather than from above through ordination. It compares this to the mechanism Maimonides proposes for renewing ordination from below in a case where all the sages of the Land of Israel agree, and mentions the ordination controversy in the sixteenth century and the background of the conversos and lashes. It argues that the mechanism of “public acceptance” is the possible explanation for the Talmud’s formal authority when it does not derive from the “do not deviate” of the Sanhedrin.
Mara d’atra, communal contract, and the authority of the whole Jewish people
The text presents the authority of the mara d’atra as authority that derives from public acceptance in the form of a communal “contract” and not from “do not deviate,” and expands this to the level of a community or of the whole Jewish people. It connects this also to the idea that national acceptance can grant authority to a text like the Talmud, and mentions that Rabbi Shlomo Fisher discusses this in Beit Yishai, part 2, siman 15, attributing the idea in principle to Rabbi Kook. It emphasizes that one can accept binding authority without turning the body into an actual Sanhedrin of ordained judges.
An anecdote about Mahari Beirav, Rabbi Yosef Karo, and evaluating the validity of ordination
The text notes that the inclusion of the mechanism of “we accepted them upon ourselves” in the Kesef Mishneh is interesting because he himself was one of the ordained figures in the sixteenth century, a student of Mahari Beirav, and Mahari Beirav ordained five students, among them Rabbi Yosef Karo. It cites that Rabbi Yosef Karo writes somewhere that in our generation there are no ordained judges, and interprets this as meaning that he understood the attempt had not succeeded, or that the agreement of the sages of the Land of Israel required for it had not taken place. It adds that some insisted on continuing ordination even after him, but argues that Rabbi Yosef Karo apparently did not see the move as valid in practice.
The Nasi, ordained judges, and the Sanhedrin after the destruction
The text distinguishes between the existence of ordained judges in the Land of Israel deep into the Talmudic period and the existence of a Sanhedrin, and argues that there was no Sanhedrin even when there was a Nasi or a great court in the Land of Israel. It describes the tradition after the destruction, from Yavneh and Usha and the various stages until its abolition, and notes later disputes such as Ben Meir and Saadia Gaon over the calendar as contexts of a yeshiva head or head of the great court and not president of a Sanhedrin. It adds a claim about ordained figures in Babylonia until close to the time of Maimonides, or “ordained Geonim,” but presents this as not the original concept.
The rebellious elder, “the law-status of a Sanhedrin,” and the distinction between a binding analogy and a formal definition
The text argues that when people say that the Talmud has “the law-status of a Sanhedrin,” this does not necessarily mean that its force comes from “do not deviate” or from Maimonides’ renewal of ordination. It distinguishes between the prohibition against ruling against the Talmud and the laws of the rebellious elder, and states that someone who rules against the Talmud is not a rebellious elder, even though it is forbidden to do so. It uses the example of the Chazon Ish regarding the Mishnah Berurah as “words that came out of the Chamber of Hewn Stone” to show that this is language meant to strengthen halakhic weight, not to create a formal status of rebellion against the Sanhedrin, especially since in practice the Chazon Ish disputes the Mishnah Berurah. It presents the idea that the Talmud acquired a de facto binding status over the years without some “mass assembly” deciding it, and asks how such a process should be interpreted.
The Rosh and what happens after the Talmud
The text cites the Rosh in Sanhedrin and states that in his view, after the sealing of the Talmud there is no absolute authority, and therefore if a person has his own reasoning he may disagree. It says that the Rosh brings dissenting opinions such as Baal HaMaor and another sage, and that the Raavad and others are also mentioned, but concludes that the bottom line is that the Talmud has binding authority, while after it there is no formal authority. It describes this as a return to the initial distinction: after the Talmud, what remains is mainly substantive rather than formal authority.
Substantive authority, error in judgment, and the validity of a ruling
The text compares substantive authority to the authority of a doctor: it makes sense to listen to an expert, but failure to do so is not a formal transgression, rather negligence. It explains that in situations of an accepted general practice and the spread of a certain mode of ruling, another decisor may be considered to have erred in judgment, but his ruling still stands and he bears consequences such as paying from his own pocket. It distinguishes between one who errs in judgment and one who errs in an explicit Mishnah, and presents the consequences as connected to passages in Choshen Mishpat.
Conversion, “throughout your generations,” acting as their agents, and Tosafot in Gittin
The text presents a derashah on “throughout your generations” in conversion and argues that one could suggest the reasoning that there must at least always be some channel that allows conversion even when the conditions of a Torah-level court are missing. It brings an argument it attributes to Tosafot in Gittin, according to which, if acting as their agents is understood as only a rabbinic rule, there is a difficulty in explaining how converts exist today, and it proposes a solution that conversion exists by virtue of the assumption that it is impossible for the law to become completely blocked. It notes that this is not agreed upon, and adds that the Ketzot, against the Netivot, proves from here that acting as their agents is Torah-level, and also notes that the Ketzot does not accept the alternative explanation.
Customs, ethnic communities, and Zikhron Yosef
The text says that there are customs and that they have significant standing, but argues that this does not amount to formal binding authority like that of the Sanhedrin. It cites the responsa Zikhron Yosef of the son of the Rosh, Rabbi Yohanan, who states that a rabbi or a community cannot decide in a binding way that “we follow Maimonides,” and that the rabbi must rule according to what seems correct to him, and one cannot “accept a decisor” as binding authority. It describes how today custom has become ethnic rather than geographic, and therefore it is hard to “change location” and free oneself from the customs of one’s ethnic group, and argues that this makes customs more draconian than they were in the past.
Negligence, inadvertence, and substantive authority as a warning mechanism
The text gives an example from Shevuot 18 about one who sleeps near the time of menstruation, and explains that the definition of inadvertent rather than coerced derives from the fact that the rabbinic prohibition of expected periods is meant to warn against a Torah prohibition into which one may stumble. It cites the Kli Chemdah in the name of the Or Sameach and presents a rejection of an overly broad understanding, with the plain meaning being that the warning is relevant specifically to that Torah prohibition. It uses this to explain that someone who ignores the warning of a great Torah scholar is not intentional in the sense of formal authority, but he is not coerced either, because there was a warning, and therefore he is negligent and inadvertent.
Jephthah in his generation is like Samuel in his generation, being qualified, and autonomy in halakhic ruling
The text interprets “Jephthah in his generation is like Samuel in his generation” as a principle that does not require equality in greatness in order to decide, but does require one to be qualified, and emphasizes that someone who sits in judgment must rule according to his understanding. It presents the possibility of disagreeing even with greater authorities and even with tannaim and amoraim on the level of proofs and reasoning, and cites the Maharshal as someone who writes that he will decide “by proofs” and will not even look for forced reconciliations when the source goes against the opinion. It states that this approach sees post-Talmudic ruling as an autonomous act grounded in the judge’s responsibility and not in the formal authority of later texts.
Codification: Maimonides, Shulchan Arukh, and the later development of “formal authority”
The text describes controversies surrounding the Mishneh Torah and the Shulchan Arukh as “the codification controversies,” and describes opposition to the idea that an unreasoned legal text should become binding by virtue of having been written. It argues that the Maharshal, the Maharal, and others came out against such authority, and cites the Talmudic Encyclopedia under the entry “Halakhah,” where the Bach and Maharsha wrote that it is forbidden to rule from the Shulchan Arukh and that one should rule through analysis of the passage itself. It presents a process in which, with the commentaries around the Shulchan Arukh, a practical permission arose to rule from it, but defines this as the reverse of the starting point, in which specifically the one who ruled “according to the Shulchan Arukh” needed to provide reasons.
The Shakh, unresolved Talmudic doubt versus a dispute among great authorities, and a conception of judicial decision-making
The text cites the Shakh in the introduction to Takfo Kohen, who distinguishes between an unresolved Talmudic doubt and a dispute among great authorities in the context of seizure, and explains that the rationale that “seizure after the doubt arose is ineffective” depends on defining the moment when the doubt arose. It presents that according to the Shakh, in an unresolved Talmudic doubt the moment the doubt arose is the sealing of the Talmud, and therefore later seizure is ineffective, whereas in an open dispute, the one who decides is the present judge, and the doubt arose when the judge himself became uncertain. It states that the Shakh and the Maharshal assume that matters not decided in the Talmud are not “decided” merely by the ruling of Maimonides or the Shulchan Arukh, but that responsibility returns to the judge.
A future Sanhedrin, decision policy, and the value of autonomy
The text argues that a vision of a Sanhedrin that would abolish customs and disputes is, in his eyes, not a vision of redemption but an “apocalypse,” and presents a conception according to which even a Sanhedrin with formal authority should leave room in which there is no need to decide and everyone can conduct himself according to his own view. It distinguishes between areas that require one binding decision for reasons of public functioning and areas in which a uniform ruling would create social problems, and therefore enforcement policy would have to be considered. It argues that the concern over a Sanhedrin that would impose itself without respecting autonomy is one reason attempts to establish a Sanhedrin fail, and defines “a halakhic Aharon Barak” as a model of coercion he fears.
The circularity of autonomy and the majority of halakhic decisors
The text presents the claim that deciding the question whether to be autonomous cannot itself be determined solely by the majority of halakhic decisors, because one who adopts autonomy also decides the question of autonomy autonomously, and thus a circular “loop” is created. It connects this as well to the discussion of a majority by number and a majority by stature, and to the question of quantitative majority versus qualitative majority, mentioning that Tosafot discuss this in that context. It concludes that the dispute over the source of decision and over the majority remains dependent on prior assumptions about accepting authority in the first place.
Full Transcript
[Rabbi Michael Abraham] We’re talking about the issue of authority in Jewish law. I spoke a bit about the sources of authority to legislate, to interpret, and whether authority is given only to the Sanhedrin—there are those who prepared material saying that it also applies to the sages of the generations at all times, not connected to ordination and not to the Sanhedrin—but that’s a lone approach. Most approaches, and that seems to me to be the plain meaning of the verses, hold that “do not deviate” and the verses that grant authority are speaking only about the Sanhedrin. After that we spoke a bit about the meaning of the sealing of the Talmud and the authority that the Talmud has, and I said that it is commonly treated like the authority of a Sanhedrin, even though clearly there were no longer ordained judges and there was no Sanhedrin. Even the judicial rulings made then were made by virtue of the rule of acting as their agents—the agency of the sages of the Land of Israel—and in later generations we’re already talking about acting as agents of previous generations, not even people of that same generation in the Land of Israel. But the authority of the Talmud is still perceived, despite the absence of ordained judges and the Sanhedrin, as binding authority like a Sanhedrin. And I spoke about two possible ways of understanding this, the mechanism probably—I spoke about substantive authority and formal authority; that’s how I started this whole series. I said there are those who base it on the idea that the sages of the Talmud had divine inspiration and never made mistakes and all kinds of things of that sort. First, that doesn’t sound plausible to me on its face—they were human beings. Second, there are mistakes there; we can even point to some of them. And third, that isn’t what authority means. Meaning, the authority of the Talmud doesn’t need—even if all that were true—it doesn’t need that aura of authority or charisma, that they never make mistakes, because authority is a formal concept. Authority means that we are essentially supposed to obey you even though you’re not right, like the authority of parliament. And therefore there is no reason to resort to those conceptions that attribute fantastic powers to the sages of the Talmud. I’m saying again: whether it was true or not true, it isn’t necessary. It isn’t necessary because once it’s established that this is what binds, then this is what binds. That is formal authority, even if they made a mistake. And I noted the sugya at the beginning of Horayot, that it’s a little more complicated—whether one needs to obey them even where it is clear they made a mistake, and how one determines that they made a mistake—and there are many disputes about that. One who errs in the commandment to heed the words of the sages. Now that’s Rashi…
[Speaker B] Yes, right—“on the right that it is left and on the left that it is right”—but I didn’t get into that.
[Rabbi Michael Abraham] I said that in general, authority by its nature is something that at least when you think they’re mistaken—maybe when there are objective indicators that they’re mistaken, then we really enter a different territory, and there are major disputes about that. And there are also contradictions in the Talmuds themselves. But in a place where you think they’re mistaken, that’s not relevant. Meaning, that’s what authority means. Authority doesn’t mean that you’re right; authority means that even though you’re mistaken I have to listen to you. So therefore we have to get to—so if that’s the case, if the Talmud really does have formal authority, and if it’s not a Sanhedrin and not ordained judges, then how does that happen? Meaning, if they’re completely right and never mistaken—that’s what I spoke about with substantive authority—fine, then that’s because they never make mistakes. But if that isn’t what authority means, and authority means some formal matter—meaning, you have to listen to them because they are the authorized body, like a parliament, like an authorized institution in any government—then where does that come from?
[Speaker C] There’s some Mishnah that says, why mention the words of an individual against the majority, that they taught—
[Rabbi Michael Abraham] In the Mishnah in Eduyot.
[Speaker C] —that individual so that one could rely on him.
[Rabbi Michael Abraham] No, that’s not what it says. The Mishnah in Eduyot says that they taught individual opinions so that if another opinion is found, people will know to attribute it to that individual opinion—not so that they can rely on him. There are medieval authorities who want to say that, but it’s not written in the Mishnah. In the Mishnah it’s…
[Speaker C] So that already leaves it within the category of authority, meaning after authority was established?
[Rabbi Michael Abraham] No, and that’s why the plain meaning of the Mishnah is not that. The plain meaning of the Mishnah is that they taught the individual opinion so that when in the future some tradition comes to you that goes against what you know to be Jewish law, don’t worry—there is such an opinion; it’s apparently a remnant of that view that wasn’t ruled as law. Meaning, according to the Mishnah it has no halakhic status. Now medieval and later authorities do talk about the possibility that under various circumstances maybe one can in fact rule differently, but that’s not what’s written in the Mishnah in Eduyot. “Rabbi Shimon is worthy to be relied upon in pressing circumstances”… that’s something else. That’s also a change of wording in pressing circumstances and in determining the law itself, not because they taught an opinion—not only Rabbi Shimon, by the way; in several places Rabbi Shimon, it’s not only there. So where does this formal authority of the Talmud come from—of the amoraim, the tannaim and amoraim? If it’s not a Sanhedrin and not ordained judges, then where does formal authority come from? So I said that the Kesef Mishneh in Laws of Rebels, chapter 2, brings—and I think we talked about this, right?—that we accepted them upon ourselves, and therefore that is basically the source of their authority. Meaning, this is authority that comes from below and not from above through the regular ordination. Authority that comes—there is a mechanism that Maimonides wanted to innovate on his own, that if all the sages of the Land of Israel agree, then it is possible to renew ordination from below. And the controversy over ordination, which we spoke about a bit, in the sixteenth century—there they even wanted to, as it were, establish the state, to make some sort of thing like that. I said that there is a difference, though, between two possible formulations. And I think in general it can only be some such mechanism, or maybe some other mechanism that explains the authority of the Gemara, because it doesn’t come from “do not deviate,” because this is not a Sanhedrin. So where does formal authority come from for a body that is not a Sanhedrin? Only if you say that the public accepted it upon itself, like a mara d’atra. Meaning, a mara d’atra also—we spoke about this—has authority. He has authority not because of “do not deviate”; he has authority because the public accepted him upon itself, a kind of contract. You accepted him upon yourselves, and that is authority. That is authority from below. And there is authority from below that belongs to the entire public, to the whole Jewish people. And that is Maimonides’ innovation regarding renewing ordination and the Sanhedrin, but in my view that is also what the authority of the Gemara is based on. An interesting anecdote is that the Kesef Mishneh, who talks about the authority of the Gemara as deriving from our having accepted it upon ourselves, was himself, of course, one of those ordained in the sixteenth century, a student of Mahari Beirav. Mahari Beirav was the first to be ordained, and then he began ordaining students. He ordained five students; one of them was Rabbi Yosef Karo. Rabbi Yosef Karo himself was ordained. And Rabbi Yosef Karo writes somewhere in Choshen Mishpat, I think—I don’t remember whether in Beit Yosef or in Even HaEzer or Choshen Mishpat—he writes that in our generation there are no ordained judges. That’s very interesting. He gives no testimony at all to the ordination, even though he himself was ordained. He writes somewhere, just in passing, that in our generation there are no ordained judges. It’s pretty clear that he himself understood that this attempt did not succeed, and that it doesn’t work. There were those who insisted even after him—meaning there were ordained figures even a generation after him, and this ordination that began with Mahari Beirav continued for a bit—but he himself apparently did not join the matter, or at least understood that once there was no agreement among the sages of the Land of Israel, it was not valid. Meaning, even if he thought it could be done, he thought that yes, it is possible to do it. In any case, it’s interesting, because if you think that that mechanism is not valid, then how do you yourself write about the Gemara that because we accepted it upon ourselves it has authority?
[Speaker D] Was the Sanhedrin still functioning at the time the Talmud was sealed? Again? Was the Sanhedrin still functioning at the time the Talmud was sealed? No—ordained judges.
[Rabbi Michael Abraham] That’s something else. There were ordained judges in the Land of Israel deep into the Talmudic period. Some date it even later than the sealing of the Talmud.
[Speaker D] As long as there was a Nasi and he was in the Land of Israel, was that a Sanhedrin?
[Speaker B] No, there was no Sanhedrin.
[Speaker D] As long as there was a Nasi—so what is a Nasi?
[Rabbi Michael Abraham] The Nasi of the great court of the Land of Israel—that’s not a Sanhedrin.
[Speaker D] It lasted until the eleventh century, long before.
[Rabbi Michael Abraham] Long before. In the tradition after the destruction, in Yavneh, Usha—they existed, they moved through several stations and were abolished. I don’t know exactly how long that took, but it wasn’t a Sanhedrin. There was a Nasi or a yeshiva head; there were disputes even down to Ben Meir and Saadia Gaon there over the calendar—yes, the calendar disputes—but that wasn’t the president of the Sanhedrin. It was a yeshiva head or the head of the great court; it was no longer a Sanhedrin. There were ordained figures in Babylonia almost until the time of Maimonides. Or “ordained Geonim,” depending on what they called them there. But that probably isn’t really the original concept. In any case, the claim is that when people speak about our having accepted the Gemara upon ourselves and from that its authority emerges, that doesn’t depend specifically on Maimonides’ innovation, even though it’s a similar mechanism. Even someone who disagrees with Maimonides—and the claim is that Rashba apparently disagreed with Maimonides, not explicitly, but it seems from two places, I think, that he disagreed. Meaning, there is a great silence among the medieval authorities regarding this issue of Maimonides. You can’t entirely identify positions on this—who agrees, who disagrees—I don’t know, it’s not clear to me why. But I once looked into it a bit, and people make inferences from Rashba there. In any case, I think that Rabbi Yosef Karo, for example, who in the end apparently did not accept the concept of renewing ordination—or maybe he accepted it, but understood that not all the sages agreed, and that’s a slightly different matter—even if he did not accept it at all, he can still say that agreement from below can grant authority to a sage or an institution or a text like the Gemara. And why? Because clearly Rabbi Yosef Karo also accepts that there is such a thing as mara d’atra. Meaning, clearly a public can accept authority upon itself. He doesn’t argue about that. The question is whether that authority can acquire a status like ordination from above, ordination that comes through Moses our teacher. Meaning, the question is whether when we—for example the whole Jewish people, or a community, of course he won’t become ordained—but if the whole Jewish people accepts someone upon itself, or all the sages of Israel agree about someone—what? And if you can’t regret it afterward? Maybe, but I’m saying even more than that—even if you don’t regret it. The question is whether that person has the legal status of one who is ordained. Can he administer lashes, give lashes as ordained judges do, or capital punishment—though that requires additional conditions, but never mind—anything that requires ordained judges.
[Speaker B] But if it’s known—
[Speaker E] If they really accepted it, what’s the problem with his having that?
[Rabbi Michael Abraham] Forbidden—what are you talking about? What do you mean, “accepted it”? We can’t just do things because we decided? Maybe we’ll also decide that it’s permitted to eat pork?
[Speaker E] Against that? It could be, yes.
[Speaker B] What—
[Rabbi Michael Abraham] Permitted to eat pork?
[Speaker E] I don’t know, I imagine that if the Sanhedrin—Maimonides understands it correctly, right?
[Rabbi Michael Abraham] Maimonides understands—and if they say it’s permitted because that’s the plain meaning of the Torah?
[Speaker E] I’m having trouble finding the difference, honestly it’s a little hard for me—authority from above, from below—where’s the difference?
[Rabbi Michael Abraham] But the entire concept of ordination is based on the fact that it comes from above. The concept of ordination is not democratic.
[Speaker E] No, I’m just asking: if everyone accepted him, then what remains? Where’s the problem? What do you mean?
[Rabbi Michael Abraham] If you need authority that is an authorization from the Holy One, blessed be He, to do certain things—there are legal matters that if you are not ordained, you cannot judge them.
[Speaker E] So if everyone agreed?
[Rabbi Michael Abraham] That’s agreement from the Holy One, blessed be He.
[Speaker E] So if everyone agreed, that’s a sign that it’s from the Holy One, blessed be He. I don’t know, it seems to me that if everyone agreed that they accept him, then the rabbi is now the ordained one. Okay, everything the rabbi says, you do.
[Rabbi Michael Abraham] Right, do it—but what does that have to do with it? I’m asking whether I can do certain things. Not you—you can do whatever you want; if you decided, then do it. What’s the issue of belief and agreement? What does that have to do with it? There are things that require ordained judges. Jewish law requires them, not the sages. Are you allowed to hit someone?
[Speaker E] If we all agreed that if—what do you mean we all agreed? He didn’t agree.
[Rabbi Michael Abraham] Are you allowed to hit him? Of course not; only one who is ordained is allowed.
[Speaker E] Honestly, at least twice today I agreed not to stop at a red light. Okay. It didn’t help me. If I had gone through the red light—
[Rabbi Michael Abraham] You violated the law because the law—what does that have to do with it? But it’s not the same thing. The law comes from the public, but ordination doesn’t come from the public; it comes from the Holy One, blessed be He. It isn’t a public decision. The public cannot decide the rules of Jewish law in most contexts; there are contexts where it can, but there are things you can’t do. There are courts that strike people not according to the strict law, and even about that there is a discussion over which court can do it, but according to strict law you need an ordained judge to administer lashes, for example. Many things. The whole beginning of tractate Sanhedrin discusses what kind of court is needed to do various things. If you’re not ordained, you can’t do it. Everyone can agree—so what? That proves nothing. And what was that whole ordination controversy about? That was exactly the issue. Everyone can agree that Rabbi Yaakov Beirav is the greatest sage of the generation, but ordained he isn’t, nothing more than that. That was the claim of Maharlbach and all those who opposed it there.
[Speaker D] The whole idea was to solve the issue of the lashes.
[Rabbi Michael Abraham] Yes, right, for the conversos there, yes, that whole story—we spoke about it a bit. The point is that when people speak about the Gemara as having a kind of authority, you can take that all the way and say: it’s like ordained judges, the Sanhedrin, “do not deviate,” and all the rest. But that, it seems to me, really has to be based on Maimonides’ innovation. Meaning, that you can renew the full halakhic concept of ordination from below instead of from above. That’s an innovation not agreed upon—Maimonides’ innovation. But there’s a more moderate innovation. They do not become ordained judges, but what they say binds, like a mara d’atra. A mara d’atra cannot administer lashes—he is not ordained—but he has authority over the community, that what he determines is what is ruled as Jewish law in that community; what he determines is what people are supposed to do. Okay? I think that’s generally what is meant with regard to the Gemara. Suppose there were a case—I don’t know—of a rebellious elder, someone who rules against the Gemara. Is he a rebellious elder? No, he is not a rebellious elder. It is forbidden to do that; he must listen to what the Gemara says, but he is not a rebellious elder. That’s exactly the difference. By contrast, according to Maimonides’ conception, maybe again there could be a rebellious elder against a book—that itself is an innovation. But on the conceptual level, the point is that you need Maimonides’ innovation in order to see this as actual ordination. But you don’t need Maimonides’ innovation in order to see that there is authority here that must be followed because the public accepted it upon itself. Just as the public accepted the giving of the Torah at Mount Sinai upon itself. Rabbi Shlomo Fisher talks about this in Beit Yishai, part 2—I mentioned it—siman 15. There’s a long siman there on this whole matter of public acceptance, national acceptance, something like that; the idea is rooted in Rabbi Kook.
[Speaker C] And regarding conversion, you said there’s a derashah about this from “throughout your generations,” that there’s a reasoning that conversion has to exist for all generations. Could one say the same reasoning about authority—that there has to be some possibility, at least, for it to continue through the generations?
[Rabbi Michael Abraham] There it actually says “throughout your generations”; there’s a verse there.
[Speaker C] There are a great many verses that speak about commandments connected to the Sanhedrin and they say “throughout your generations”—“a statute of justice,” and so on. Who?
[Rabbi Michael Abraham] You have to examine each thing on its own terms. What did they learn there from “throughout your generations”? From the “throughout your generations” of conversion they learned that indeed this applies to future generations, and there too, by the way, in the plain sense it refers only to the sacrifice. That even in a place where there is no sacrifice—that’s what the Gemara brings—that even where there is no sacrifice, conversion can still be done. Can you expand that to every matter, in every generation, so that if we say we have no ordained judges—then what? I once argued about a Tosafot in Gittin that asks: how do we judge, how do we convert people today? A court requires a court; without that there is no conversion. And now we operate through acting as their agents. Ostensibly that is only a rabbinic rule according to some of the medieval authorities, only rabbinic. If it is only rabbinic, then how are there converts today? There is no Torah-level court. There I once saw—and this is how I tried to explain Tosafot—that based on the Gemara there, in a place where there is no practical way to carry out the laws of conversion as written in “throughout your generations,” then conversion can be performed even without that, because the assumption is that there must always be some channel that allows conversion. And that is far from agreed upon. The Ketzot against the Netivot, I think, proves from here that acting as their agents is Torah-level, because otherwise, he says, it really would have been impossible to convert. The Ketzot, for example, doesn’t accept this. So the claim is that authority not in the formal definition of “do not deviate”—that can be accepted even without accepting Maimonides’ opinion. And therefore if the public accepted it, just as it accepted the giving of the Torah upon itself, it can also accept the giving of the Gemara upon itself. When the Gemara determined something and the public determined that this is the law, then that is the law. And I spoke about the significance of the Gemara and why specifically it was established, and how much because of that decision we are here today—without it we would not be here, without that decision. And that is basically the source of the authority of the Gemara. Again, I don’t think one can really treat it literally as a Sanhedrin in the simple sense unless one accepts Maimonides’ innovation, but it is part of the order of things. I once spoke—I think I mentioned—the Chazon Ish, who writes in a letter that… yes, after all, who gave the Mishnah Berurah its status? Who gave it the central status it has? The Chazon Ish. In Lithuania it was the Arukh HaShulchan; the Mishnah Berurah did not have the status it has today. The Chazon Ish writes that all of his words are like words that came out of the Chamber of Hewn Stone. And if you know—I assume you do—the edition of the Mishnah Berurah with the notes of the Chazon Ish, he disagrees with him all the time. Meaning, if he came from the Chamber of Hewn Stone, then you’re a rebellious elder. That’s the obvious conclusion. Also Rabbi…
[Speaker E] That’s Rabbi Auerbach… everybody agreed… who said so? Who said? When Rabbi Steinman replaced the previous one, Rabbi Elyashiv, then Rabbi Auerbach… yes, so Rabbi Elyashiv said he is the next great sage of the generation; he’ll decide.
[Speaker B] Come on, really the great sage of the generation?
[Speaker E] I’m only saying, whoever decides that he’s the next great sage of the generation, apparently he is the great sage of the generation because he decided that he is.
[Rabbi Michael Abraham] Fine, whatever. The point is that you need to know how to take these things. When people say that the Gemara has the legal status of a Sanhedrin, that doesn’t mean “do not deviate”; it doesn’t mean that we are assuming Maimonides’ innovation, the renewal of ordination. The claim is that it has authority because the general public accepted it. That doesn’t enter the formal definitions. Same thing when the Chazon Ish says that the words of the Mishnah Berurah came out of the Chamber of Hewn Stone—he doesn’t mean to say about himself that he is a rebellious elder. He means to say that this is an important decisor and someone who has no position of his own ought to rely on him, but someone who has a position of his own may disagree with him. That’s fine.
[Speaker D] And even according to Maimonides, just accepting it doesn’t automatically turn him into a Sanhedrin; people would also have to decide that they want it that way. Again? Meaning, the whole people would need to decide that, say, if they accepted the Gemara, then to accept it and decide that it is like a Sanhedrin, as if to give them ordination. They didn’t do that.
[Rabbi Michael Abraham] The question is whether they actually did this. They accepted the authority of the Talmud de facto. Again, there wasn’t some huge assembly that decided the Talmud is the authority, but somehow over the years that status became fixed for the Talmud. Now the question is how to relate to that. It could be a Sanhedrin, implicitly, in principle. If you accept Maimonides’ innovation, I’m willing to go one step further with you and say that this decision too, made implicitly, is considered like an assembly in which things were decided. You can hear such a claim. It’s no worse than the legal fiction of “their agency.” It’s a fiction no smaller than that. But I don’t think that’s what they meant. That’s the point. There is some authority here; certainly that’s the framework, but fine.
Okay, we also saw in the previous lecture the Rosh in tractate Sanhedrin, who goes on at length about this issue—what happens after the Talmud. That’s the next stage. We got as far as the Talmud. Yes, the Sanhedrin, “do not deviate,” all the authorities, we got as far as the Talmud. What happens after the Talmud? So the Rosh wrote—we read this last time—the Rosh writes, and this is his view, and in the end it seems to me that some of his points were accepted in the Rosh and in Choshen Mishpat, that after the Talmud there is no absolute authority. A person can be mistaken in judgment, here or there, and if you have your own reasoning you may disagree with whomever you want. That is the Rosh’s view. He brings dissenting opinions there—Ba’al HaMaor, and some sage that Ba’al HaMaor cites. We saw several somewhat different views there, the Ra’avad, we saw a number of somewhat different opinions there, but in the end it seems to me that the bottom line in the Rosh is that after the Talmud there is no absolute authority. And the Talmud does have it. That is written explicitly.
Meaning, after the Talmud, in practice, we return to the very distinction with which I opened this whole discussion: between formal authority and substantive authority. What exists after the Talmud is only substantive authority, meaning there is no formal authority. What does that mean? It means that if there are people who are great Torah scholars, then it makes sense to listen to them. Or if someone at least has no position of his own, it makes sense for him to look for a great Torah scholar and rely on him, just as you go to a doctor. But it’s not that if you don’t take the medicine the doctor prescribed for you, you have violated a prohibition. If you want to kill yourself, kill yourself. I mean, simple reason says that if he’s an expert, it’s worth doing what he tells you. Same thing here. The authority after the Talmud is authority like that of a doctor. Meaning, if there is a Torah scholar, then apparently he knows what he is talking about—that’s all. But that is not authority in the original sense; it is not formal authority. That’s what the Rosh means.
So there are concepts that somehow arose de facto, like “mistaken in judgment.” Fine? Let’s say that somehow a generally accepted approach developed—I mentioned these terms—some form of halakhic ruling spread among the public on a certain question, and then someone who rules differently is considered mistaken in judgment. And there is a situation where some sort of consensus still defines you as mistaken. And still, someone mistaken in judgment—as opposed to someone mistaken in an explicit Mishnah—his ruling stands, and therefore he pays from his own pocket. In Choshen Mishpat this has all kinds of implications from a sugya that goes inside out over there. But someone mistaken in judgment, his ruling is a ruling, as the Talmud says. It’s just that there are all kinds of rules about what to do now with that ruling because he still made a mistake. But as mistaken in judgment, this is basically a ruling that exists, a ruling that is valid. And there is compensation and all sorts of things that have to be given.
So therefore, basically, this is what the Rosh says: after the Talmud, formal authority ceased. There is no more formal authority. There is mara de-atra—again, I’m saying—all kinds of things like that. Or if there were to be renewed consensus by the entire Jewish people. I don’t think this ended in the seventh or eighth century, I don’t know when they decided about the Talmud. Rather, if there were renewed consensus of the whole public, that could be just as valid. But there isn’t any. At the moment I don’t think there is anything or anyone that has won such consensus. There is recognition of the importance of halakhic decisors, of course, but not authority in the sense that what he says is binding. No one received that kind of authority, although on the theoretical level such authority could be granted even today; it is not limited to one generation or another.
And since that is so, it seems to me that de facto after the Talmud there is no more formal authority in general. Not a community rabbi and not a mara de-atra, meaning halakhic authority such that whatever he says must be done. Not the Noda B’Yehuda, not Maimonides, not the Shulchan Arukh, nobody. There is no formal authority. There is substantive authority and there are customs. And regarding customs, I already mentioned that in the responsa Zikhron Yosef by the son of the Rosh—Rabbi Yohanan cites him—he writes that a rabbi or a community cannot decide that they are going to follow Maimonides, like the Yemenites for example. There is no such thing. It is not valid. The rabbi has to rule according to what seems correct to him. There is no such thing as relying on a halakhic decisor. You have to rule according to what seems right to you. Meaning, even in a place where you accept it upon yourself, that still doesn’t create authority. There is no such thing—you rule what you think. That’s it.
Is that in the Sephardic book? What? The Talmud or the Rif? So why did he get hit over the head because of those rules? “Do not deviate,” and the three judges of his court. They say to say. A practice? You can practice that way. You can practice that way; in things like these it’s not connected. They have what is authorized, and the question is whether someone who does otherwise has violated anything. Meaning, is he not okay? There is the local practice here. I said: the Beit Yosef was not accepted. In my opinion, no. It has the status of custom. Custom is not a negligible thing. It has the status of custom. There is no formal authority. There isn’t. After the Talmud there isn’t any. And it is written that there is no end to the halakhic decisors. So it’s not that there are masses of people today, and also today’s halakhic decisors somehow—it doesn’t seem they are treated that way—but almost all the sources say this.
[Speaker D] Why not the halakhic decisors?
[Rabbi Michael Abraham] No, that’s obvious. It was written in parallel.
[Speaker D] He did not accept the Beit Yosef. So he did not accept the Beit Yosef.
[Rabbi Michael Abraham] And the Rema? We accepted the Rema in all communities. Meaning, the Shulchan Arukh and the Rema with all the commentaries around them. So that’s the… maybe. Because they also disagree with him. The commentaries disagree with him. In any event, the point is that from there onward, the authority is substantive authority. Now substantive authority is not a negligible thing. Meaning, if there is some great Torah scholar, you can’t dismiss what he says—but not because he has authority. Just as you don’t dismiss an expert doctor if you don’t understand medicine. So what did you violate? You didn’t violate anything. You violated the fact that you were negligent. There is a Talmud in tractate Shevuot 18; the Talmud says there that someone who comes to sleep close to the expected menstrual time—and expected times are, according to Jewish law, rabbinic—someone who comes to sleep close to the expected time and blood appears, the Talmud says he is not under compulsion; he is inadvertent. Meaning, he brings an offering.
[Speaker E] Now, did he violate a prohibition?
[Rabbi Michael Abraham] A rabbinic one. So how does he bring an offering? That would be unconsecrated slaughter in the Temple courtyard. And Rabbi Ishmael, who said he should bring a rich sin-offering—if he violated the words of the sages and he said, “I’ll read and not tilt,” so on what did he bring the sin-offering? He tilted. He didn’t tilt. Who says? There are some textual versions. There are versions about whether he tilted or not. If he didn’t tilt, then he doesn’t bring a sin-offering. You don’t bring a sin-offering for a rabbinic prohibition.
There, in the Talmud, the Talmud says that he is not under compulsion; he is inadvertent. Why? Expected times are only a rabbinic prohibition, and if he were under compulsion he would not bring an offering. Let’s say he is liable to a sin-offering, then he is inadvertent. What does that mean? In Kli Chemdah he brings—by the way, at the end of Parashat Balak, I actually read this two weeks ago—Kli Chemdah brings in the name of the Or Sameach, I think, that he says that anyone who violates a rabbinic prohibition is not considered under compulsion if because of that he falls into a Torah-level prohibition. But he himself disagrees with that, and truly that is not the plain meaning of the Talmud. The plain meaning of the Talmud is that this is only where the rabbinic prohibition itself warns against the Torah-level prohibition in which you failed. It’s not that if you violated some rabbinic prohibition—for example sorting food from waste as a rabbinic prohibition—and because of that you ended up, I don’t know, in the prohibited labor of trapping, then you are not under compulsion but inadvertent. Expected times—the whole rabbinic prohibition of expected times is lest she see blood, since this is a date when she is likely to see blood. Now that is what happened, so what do you want to say, that you were under compulsion? The sages warned you. The rabbinic prohibition serves as a warning. So because of that, you are not under compulsion but inadvertent. Fine, that’s what is written. The Rashba writes this; it is basically a Talmudic statement. The Rashba just sharpens the point. Why did I get into this? Because of your comment.
[Speaker E] I meant, if he has substantive authority and I don’t want to listen to him, then I haven’t violated anything.
[Rabbi Michael Abraham] Exactly. So the point is that you haven’t violated anything. Now you’ll come to the heavenly court, and they’ll say: what do you mean? I didn’t—why?
[Speaker E] I’ll say there was no substantive authority. Right, there was no substantive authority, there was no formal authority.
[Rabbi Michael Abraham] Correct. So I didn’t listen to him. Fine—you didn’t listen to him, so you were negligent. Here there is a great Torah scholar and you are ignorant; you should have listened to him.
[Speaker E] So that’s true of many other things as well.
[Rabbi Michael Abraham] Exactly. The objection is an objection of negligence. Meaning, you won’t be deliberate, but you also won’t be under compulsion. You’ll be inadvertent. And that’s the point. In the end, if someone warned you—and we thought…
[Speaker E] But suppose he warned you many times, and you’re still fine. You had your own position; that’s my opinion.
[Rabbi Michael Abraham] If you had your own position and you are a Torah scholar, then you’re completely exempt. You’re not inadvertent or anything; you’re exempt.
[Speaker E] But I’m certainly not a Torah scholar. How much of a Torah scholar does one need to be?
[Rabbi Michael Abraham] I’ll get to that later. The question is how much of a Torah scholar one has to be, and relative to him. But on the principled level, someone who knows nothing at all, let’s say.
[Speaker E] That’s my base case.
[Rabbi Michael Abraham] Right. So what is the claim against him? The claim is that he was negligent. And what does it mean that he was negligent? Did he desecrate the Sabbath? The claim is that he desecrated the Sabbath, but not deliberately, and not under compulsion either. You simply should have suspected that there was negligence here. There is here—okay, “I sinned,” we should say that he sinned. That is the claim. That is exactly the difference between formal authority and substantive authority. Because with formal authority, then you desecrate the Sabbath—it doesn’t matter. If the Sanhedrin said this is the law and you did not do it, then you desecrated the Sabbath. But if it is substantive authority, then you did not desecrate the Sabbath deliberately, but on the other hand you can’t say you were under compulsion. Under compulsion? There was a Torah scholar here who warned you. You didn’t listen to him, so you didn’t listen to him.
And this reminds me of the Talmud in Berakhot. The Talmud says there: a person should always live in the place of his teacher. But didn’t we learn the opposite—not to live in the place of his teacher? So there is another baraita that says he should not live in the place of his teacher. This case is where he is subordinate to him, and that case is where he is not subordinate to him. Meaning, in a place where he is subordinate to his teacher, then let him live near him, so that he will warn him against mistakes. If he is not subordinate to his teacher, let him live far away. Now if he lives far away because he is not subordinate to his teacher, and he committed a transgression because there was no one there to warn him, is he exempt? The Talmud told me to live far away! What do you mean? The Talmud told me to live far away—what do you want from me? There was no one here to warn me. Of course. It told you to live far away because you are not subordinate, so you are negligent. Living far away is fine—so maybe you won’t be deliberate—but certainly you won’t be under compulsion. You’ll be inadvertent instead of deliberate. It’s like “better that they be inadvertent rather than deliberate,” but that is not a claim that it is permitted for you and everything is fine.
Okay, but I’m saying, in a moment we’ll get to a situation where I have a position of my own—not that I’m ignorant and just not listening to him because I don’t feel like it or because it suits me, with no basis at all, just without understanding. Let’s see what happens where I do understand. So we’ll see that in a moment. In any event, that’s why I say that after the Talmud, what remains is only substantive authority and not formal authority. But substantive authority is also something. As I said before, one of the implications is that if there is a Torah scholar who tells you something and you made a gross mistake and basically dismissed what he said, then you are negligent. Meaning, you won’t get away with nothing. Because substantive authority is also something. Okay?
[Speaker E] The truth is that substantive authority should be much greater than formal authority. Why? No, I mean that his obligation depends on the gap. Meaning, if this is substantive authority of someone where there really are huge gaps between you and him—I hope the Rabbi will address the gaps—because the force comes from that place…
[Rabbi Michael Abraham] I’m not speaking about the gaps on that plane. Even with the biggest possible gap, it still does not mean you desecrated the Sabbath deliberately, only inadvertently. There is still negligence here. Inadvertent close to deliberate—call it what you want—inadvertent close to compulsion, I don’t know, but it’s inadvertent. In a place where there is formal authority, you desecrate the Sabbath, you are liable to death, I don’t know what, certainly.
[Speaker E] Even if they were mistaken? What?
[Rabbi Michael Abraham] If they were mistaken, that is something else; that already becomes the question of “the court issued a ruling,” and that doesn’t matter. Let’s talk about where they were not mistaken—just as that Torah scholar in substantive authority is not mistaken, he is also not mistaken. So compare two cases where they were not mistaken. It doesn’t matter—let’s talk about cases where they were not mistaken. He was not mistaken.
[Speaker E] So why did they bring an offering? Who?
[Rabbi Michael Abraham] No, I’m talking about a situation where they gave a ruling that was not mistaken. If they gave a ruling that was not mistaken, then that is substantive already. No. Why?
[Speaker E] Since if…
[Rabbi Michael Abraham] If there is formal authority there, then you are deliberate, and if there is substantive authority there, then you are inadvertent.
[Speaker E] In any case, even though…
[Rabbi Michael Abraham] They were not mistaken—you were mistaken, but inadvertently. Because they were not mistaken; their ruling is correct. But when you violated it, you are considered inadvertent, not deliberate. There is a difference.
[Speaker E] Yes, but when they were right. I’m asking when they were mistaken.
[Rabbi Michael Abraham] When they were mistaken, that is something else. It takes us back to the topic I said earlier I couldn’t go into. This point comes up a lot in the halakhic decisors, and it fades somewhat in the period of the later authorities. There is a very interesting process here. I think Terumat HaDeshen is the central responsa work on this issue; I once wrote something about it. But even after Terumat HaDeshen—for example the Shakh writes very unequivocal things, the Maharshal writes very unequivocal things on this issue. The Maharshal, of course, was one of the greatest fighters against the Shulchan Arukh and the Rema, so that is not surprising. Because indeed there is what Menachem Elon calls in his book “the codification controversies.” Around Maimonides there was one controversy, and around the Shulchan Arukh there was a similar one several hundred years later. Maimonides wrote a kind of book that received some kind of status—and I’m not sure Maimonides himself saw himself that way—but it received some kind of super-status. And people came out strongly against that. Meaning, you write a ruling without bringing sources for it—what are you, Moses our teacher? If you want to claim something, kindly bring the sources.
As I once mentioned, like the Mishnah Berurah-style work Shoneh Halakhot by Rabbi Chaim Kanievsky, which is also written as a kind of abridged Shulchan Arukh, and at the beginning it says: one must not issue halakhic rulings from this book. So why did he write it? I mean, there are no reasons there. So if there are no reasons and you also can’t issue halakhic rulings from it, then why write it? I’m saying, if you write me the reasoning, then “one must not issue halakhic rulings from this book” makes sense—I wrote a book of analysis, you decide what you decide. But if you don’t write the reasoning, then there’s no analysis there and no halakhic ruling there either, so what is it?
[Speaker E] It’s just some sort of hand-in-hand help?
[Speaker E] And how did you reach the conclusion that what you’re doing is okay? Answers at the end of the book. Mishneh Torah.
[Speaker B] Yes,
[Rabbi Michael Abraham] But clearly he doesn’t see it as authority. He says that if they rely on me, they’ll act correctly. Yes, they’ll act correctly, but it’s not that he has authority. And also in Shoneh Halakhot—someone who does this? He does not see himself as a Sanhedrin, Maimonides. It’s not that he says anyone who acts against me is simply raising a hand against the Torah of Moses. He says: whoever wants to shorten the road and know what the Jewish law is—this is the book, study it, do this, and you are acting correctly. Fine?
[Speaker B] Shoneh Halakhot is not the same thing.
[Rabbi Michael Abraham] It is substantive authority, not formal authority.
[Speaker B] And is that a sultanic conception? Or a sultanic conception?
[Rabbi Michael Abraham] And is that a sultanic conception? Fine. Mishneh Torah—look. It could be a mistake. It could be that this is a mistake. In our case, it could be a mistake. It could be that you are mistaken—look in the Talmud; it could be that you too are mistaken. What? But I’m better than you. Look at me; there is less chance I’ll make a mistake. There can always be a mistake. The point is that he did not see it as authority in the sense that one may not deviate from what I say. I don’t think he writes that anywhere. Right? I don’t remember such a thing. He says: you want a book that tells you the correct Jewish law? No problem. I’ve shortened everything for you. Look at this, do this, and you’re fine, you’re set. He did not say that whoever acts like the Ra’avad is desecrating the Sabbath, meaning that he is forbidden to do so. He did not see himself as an authority that is a Sanhedrin. It’s not the same thing. He saw himself as substantive authority, not formal authority.
But still, the way people related to him at a certain stage—certainly among the Yemenites and such, who really accepted him—there was some sense that his words are binding by virtue of being written. And that is something that aroused the anger of not a few medieval authorities. In the end it came back later with the Shulchan Arukh, which went not only in the way Maimonides wrote, but it is also written in the form of these unreasoned halakhic rulings. Because after all, all the reasons also appear in Beit Yosef, so it’s not so terrible—it is reasoned. But he relied on three, on the majority among three halakhic decisors that he chose: the Rosh, the Rif, and Maimonides. And that’s it. What, did he appoint some court there? Did he appoint them to be a Sanhedrin? So there were many arguments about this, because the Maharshal came out against the Rema in parallel. The Rema and the Shulchan Arukh are both considered, in the non-codificatory view, not only to have value as a code, but authority as a code—that now this is what you are supposed to do; what is written here is what you are supposed to do. And the Maharshal, the Maharal, and the Maharal’s brother came out against them; yes, there were a great many arguments about this. And even after the Shulchan Arukh it took time until it became fixed.
And the Shakh, in a very autonomous conception, so to speak, presents a very autonomous conception in Takfo Kohen, the Shakh himself as well. But somehow, slowly, a conception was born almost out of nowhere—I don’t know if out of nowhere, but a conception that achieved hegemony far beyond what existed before: that the Shulchan Arukh is some kind of text that binds like the Talmud. Even though people do disagree with it, a kind of formal authority was reborn with respect to Maimonides and the Shulchan Arukh. If you look at the entry “Halakhah” in the Talmudic Encyclopedia, you’ll see there that he brings several sources: the Bach and the Maharsha wrote that it is forbidden to issue rulings from the Shulchan Arukh. Forbidden to issue rulings from the Shulchan Arukh. You have to rule based on analysis of the sugya itself. Shulchan Arukh is another opinion—study it—but you can’t rule something because that’s what is written there.
The Maharal speaks about someone who does that as if he were some sort of sorcerer. Meaning, you stir around in the Shulchan Arukh—boom, it says so in the Shulchan Arukh, so that is the Jewish law. That’s magic. You have to study the sugya, see the reasoning, and reach a conclusion, and then know what to do. In the end, there are halakhic decisors who say that one may already rule from the Shulchan Arukh, and on that we rely today because there are commentaries. The commentaries around it bring the sources and also sometimes disagree with it, so now it is already permitted to rule according to the Shulchan Arukh. But you have to understand: there need to be reasons why it would be permitted to rule based on the Shulchan Arukh. Not reasons in the sense that someone who rules against the Shulchan Arukh needs reasons; rather, someone who rules according to the Shulchan Arukh needs reasons. That is the basic conception. Now today it has somehow flipped.
And the Shakh, for example, is an example—the Shakh, very consistently, it seems to me, you can see this in many places; the Maharshal is even more extreme. The Shakh writes, in one of the explanations he wants in the introduction to Takfo Kohen, a distinction between a case left unresolved in the Talmud and a dispute among great authorities. Something left unresolved in the Talmud versus a dispute among great authorities—does seizure help or not help? His argument is that even according to the one who says that in an unresolved Talmudic doubt seizure does not help—that itself is a dispute among medieval authorities—but according to the one who says that in such a case seizure does not help, in a dispute among great authorities seizure certainly does help. Why? He gives three explanations there. One of the explanations is that there is such a rule: seizure must be made before the doubt was born. Seizure after the doubt was born does not help. Now the question is: when is the moment of the birth of the doubt?
So he says that if we are speaking about a question left unresolved in the Talmud, then the moment of the birth of the doubt is the moment when the Talmud concluded it unresolved. The sealing of the Talmud—or not, you can argue about that—but it doesn’t matter, we’re talking about fifteen hundred years ago. Meaning, fifteen hundred years ago is the moment of the birth of the doubt, and what are you seizing now? You’re seizing fifteen hundred years after the birth of the doubt? You can’t seize after the doubt was born. But if it is a dispute among great authorities—including a dispute among great authorities in the Talmud itself, not only a dispute among medieval or later authorities, but a dispute among Amoraim—then there one can seize now. Why? Because if an open dispute remained in the Talmud, then in effect the one who is supposed to rule in that dispute is the judge sitting in judgment now. And as long as that judge has not decided, if you seized, then it is a seizure before the doubt was born, or before the judge came into doubt.
So you seized, and that is seizure before the doubt was born, even though it is a dispute in the Talmud. Meaning, the assumption of the Shakh—and of the Maharshal as well—is that when there is a dispute among Amoraim or Tannaim, no matter—even a dispute among Tannaim—the usual conception today in the laws of doubt is that if it was not clearly decided, then we follow the laws of doubt. If there is a ruling, there is a ruling; if not, we follow the laws of doubt. What they didn’t know—“the burden of proof is on the claimant,” or there are rules in the Talmud; sometimes there are rules in the Talmud, like when there is a dispute between two sages: Rav Nachman in monetary law, Shmuel in monetary law, Rav in matters of prohibition, all kinds of things like that. But if it was not decided, then we follow the laws of doubt. Are there such things?
[Speaker D] Are there such things? A ruling?
[Rabbi Michael Abraham] What ruling? Maimonides’? No, that is not called “decided.” Maimonides is an opinion among the medieval authorities; I can disagree with Maimonides. The question is whether it was decided by a rule in the Talmud. When there is Rav and Shmuel, the law follows Rav in prohibitions and Shmuel in monetary law—that is a ruling of the Talmud itself. We do not argue with the Talmud; the Talmud is the authority. But any ruling after the Talmud is a ruling after the Talmud. Father says one way, I say another.
[Speaker D] The law follows Rabbi Akiva against his colleague.
[Rabbi Michael Abraham] Fine, those are all Talmudic rules. The Talmud in Eruvin there, page 47, 48, is full of rules. But those are rules the Talmud itself established; I’m not talking about that. I’m talking about things left open, with no Talmudic rule deciding them. So the halakhic decisors ruled. Now the halakhic decisors also usually rule according to various rules, but those are often rules they themselves built. And therefore in such a place, says the Maharshal, and the Shakh says too, the one who needs to rule is the judge who is sitting in judgment. And even if Maimonides said his piece and the Rashba said his piece and the Shulchan Arukh said his piece, it makes no difference at all. In the end, when the case comes before you, the one who rules is you. And therefore if one of the litigants seized, he seized before the doubt was born.
Can you remove it from him because he seized? If you rule that he is not right, no problem. But if you remain unresolved—sorry, remain in doubt—then the doubt was born when you decided that you are in doubt. If the judge decides that he did not seize lawfully, then certainly he will take it out of his hands. Fine. But I’m saying that in a place where the judge remains in doubt, then even if the other party was in possession and you seized from him, it doesn’t matter, because your seizure is a seizure before the doubt was born, because the doubt was born when the judge decided that he is in doubt, not when the Shulchan Arukh decided or when Maimonides decided or when the Talmud decided. Fine? Even though this is a dispute among medieval authorities or a dispute among Amoraim.
And the Maharshal writes very sharp things in several places. The Maharshal writes that I will decide by proofs in favor of Rabbi Yosei and against Rabbi Meir—or the opposite, it doesn’t matter—by proofs, not according to rules of decision. We usually say that if there is a dispute among Tannaim and it was not decided, then it follows the laws of doubt: the burden of proof is on the claimant, and with prohibitions, whatever, a doubtful prohibition is treated stringently.
[Speaker D] Rabbi Yosei and Rabbi Meir—that actually is written in the Talmud.
[Rabbi Michael Abraham] Fine, so in a place where it is not written in the Talmud, he will decide by proofs. What does that mean, by proofs? Think: when we study in yeshiva, suppose there is a dispute among Amoraim. If I found a Mishnah against one of the Amoraim, what do we do? We immediately look for an answer, right? Obviously that Amora did not miss the Mishnah, or the Tosefta, or whatever it is. If it’s a medieval authority and there is a Talmud against him, he certainly did not miss it; rather, you build some answer. The Maharshal says no. There is a Talmud against him—he rules against him. There are proofs against him, and that’s it; no need for answers. Meaning, the basic assumption that we state, as it were, is a kind of subtext. In the subtext it is obvious to us that everyone knows everything; no one missed anything. There is no such creature. The Maharshal says no: I will bring a proof against him and rule against him.
[Speaker D] Against whom? An Amora? A Tanna? Against a Tanna? Yes. Tanna, Amora, everything.
[Rabbi Michael Abraham] So the point is that the approach that seems to me to have been accepted, following that Rosh I cited earlier, I think overall the accepted approach was that authority is only substantive authority. We relate to a Torah scholar—what he says is not something you can throw away, not something you can belittle. But he has no formal authority. The fact that it is written in some text or other, important as it may be, means nothing. If I am capable, I can decide against him and nothing happened. I am considered neither inadvertent nor deliberate nor anything—under compulsion. I do what I think. That’s all, and that is completely fine, ideally. This is not the difference between inadvertent and deliberate or under compulsion. That is the meaning of saying this is substantive authority and not formal authority, and this is what the Rosh means when he says, “Yiftach in his generation is like Samuel in his generation.”
I didn’t have time to be precise enough in the Rosh’s language; there were several points there worth discussing, so as last time: when he says, “Yiftach in his generation is like Samuel in his generation,” he does not mean that Yiftach was as great as Samuel. The opposite. That phrase—the Talmud says it, not him—what it means is the opposite: even though Yiftach was not as great as Samuel, in your generation the one who decides is Yiftach and not Samuel. And if Yiftach thinks differently from Samuel, then he will rule differently from Samuel, even though he is not as great as he was. Meaning, the rule “Yiftach in his generation is like Samuel in his generation,” which is what the Rosh brings there, is a rule that says this is not conditional on my being as great as the person I disagree with. No. It is conditional on my being capable.
[Speaker E] But that phrase, “Yiftach in his generation,” is only because Samuel isn’t here. What? It’s only because there is nothing else. “Yiftach in his generation is like Samuel in his generation” means that even though he is smaller than him—
[Speaker B] Right, but if he disagrees with him?
[Speaker E] If it’s not a disagreement with him, he’s not next to him.
[Rabbi Michael Abraham] Those are generations that had a Sanhedrin. It’s a borrowed expression—generations that had a Sanhedrin. In generations that had a Sanhedrin, you cannot argue with the Sanhedrin of your generation.
[Speaker E] But the Rosh brings that expression not in order to speak about…
[Speaker D] Generations.
[Rabbi Michael Abraham] The Rosh himself is speaking about the sages of our generation and the sages of previous generations. One may disagree with the sages of our generation if they disagree with someone, because that is what they have. Meaning, it’s not that both are in the same place and then he listens. You can disagree even with someone who is alive today. There is no obstacle. The Rosh writes this. And it is explicit. You can disagree with someone who is alive today, not only with someone who is not. Also with someone who is alive now, and even if he is greater than you.
I brought—I don’t remember if I brought it—the Talmud says that the law was not decided according to Rabbi Meir because they could not get to the depth of his thinking. Yes, in Eruvin. They could not get to the depth of his thinking because he was such a great genius, so they wanted to remove the…
[Speaker E] The law follows him everywhere because it’s all an evil spirit. What? That was said about Rabbi Meir afterward. It’s not that they could not get to the depth of his thinking—that’s when they felt they were on his level…
[Rabbi Michael Abraham] It says the law is not like him.
[Speaker E] Because again, they did not say this. They did not say that they could not get to the depth of his thinking.
[Rabbi Michael Abraham] So what? Why did they say it?
[Speaker E] Because they said it later. So what?
[Rabbi Michael Abraham] Why did they say it?
[Speaker B] They—
[Speaker E] They said it because they understood what we said before. In retrospect they looked back and said: look, he was more right than they were, he was greater than they were, because now we understand.
[Rabbi Michael Abraham] No! But those who ruled—those who said this ruled like others, not like Rabbi Meir. They said that the law does not follow Rabbi Meir. Those who said it. So I ask those who said it—not his colleagues at the time, but those who said it in a later generation—okay, and why did they rule not like Rabbi Meir? Because we are commanded to follow what we think, even though we ourselves know that Rabbi Meir is greater. We ourselves say that Rabbi Meir is greater. But if we think otherwise, we are supposed to do what we think.
[Speaker B] Because of formal authority, because of the Sanhedrin. No, there is no formal authority.
[Rabbi Michael Abraham] We are dealing here with a dispute between sages of the same formal standing.
[Speaker B] Rabbi Meir was not on the Sanhedrin? It doesn’t matter.
[Rabbi Michael Abraham] Why does that matter? Relative to them, there is no formal authority. When they argue within the Sanhedrin—let’s say this was within a Sanhedrin—yes, there was formal authority within the Sanhedrin according to the majority. Fine. In this dispute, Rabbi Meir was greater. Why did they not rule like him?
[Speaker B] Because according to formal authority you follow what you understand. Not according to authority—there is no formal authority now within themselves. After they decide, they will be formal authority for others. But I’m asking how they themselves decided. When creating formal authority, one must take into account the opinion of his colleagues.
[Rabbi Michael Abraham] Why? Suddenly? Take into account Rabbi Meir’s opinion, because he is the most right!
[Speaker B] In creating formal authority, you… why?
[Rabbi Michael Abraham] Why is that true? I’m asking why that is true. Because he is right, Rabbi Meir. Why not follow the one who is right?
[Speaker B] According to the majority. That’s all.
[Rabbi Michael Abraham] So now when there is no formal authority, it is a dispute among sages today. Again there is no formal authority, even though the result also will not be formal authority. What difference does it make? In reasoning, it is the same. Also today, even though someone is wiser, if I think differently I am supposed to do what I think—of course on the assumption that I am capable. And that expression appears in the Rosh too. Everything appears in the Rosh. What does “capable” mean? We usually think that in order to disagree with someone I need to be on his level. No. I do not have to be on his level. But I do have to be capable. Meaning, if you simply don’t know how to learn, then it’s not serious—you think one way and the leading sage thinks another. In a place where I am capable, and I myself admit that he is greater than I am, but he would not catch me on an explicit Mishnah-level error—meaning, I think differently. We have a conceptual disagreement, and I understand that he is greater than I am, then I am supposed to do what I think, even though I also agree that he is greater than I am. Not because I’m arrogant, but because there is an obligation to act autonomously. You have to do what you think.
[Speaker C] Does someone who is not capable at least have the freedom to choose someone to follow, even if that person is not the greatest?
[Rabbi Michael Abraham] I think so. After all, that Torah scholar whom you choose will already decide whether he goes by his own opinion or by the opinion of a greater Torah scholar. But you suspend yourself, your own decision, and you say: okay, he will decide for me. He himself stands before the dilemma whether to go after the greatest sage or to do what he thinks.
[Speaker C] So even someone who is not capable still has some kind of autonomy?
[Rabbi Michael Abraham] Of course—the autonomy of choosing the rabbi, choosing for yourself whom you think, yes.
[Speaker C] And does he even have an obligation to decide for himself whom he follows?
[Rabbi Michael Abraham] That I don’t know—whether it is an obligation—because such a decision is not really a decision of reasoning. But he has the right. Decide whom you follow, the one who speaks to you, I don’t know.
So the claim is that although there is weight to substantive authority—and that is the point I want to add here—although there is weight to substantive authority, there is also weight to the value of autonomy. The authority and the weight we give to the value of truth—because someone who is a greater Torah scholar is probably closer to the truth. Again, there is no guarantee; anyone can make a mistake. But if I have to bet, then the great Torah scholar will probably hit the truth with a higher probability. So why not always follow the greatest Torah scholar? That at least minimizes the chance of error. Because there is a value of autonomy. And the value of autonomy is exactly what the Maharsha speaks about, and the Maharal and the Rashash and all of them. There is a value of autonomy that says you are not supposed to rule like someone just because—despite the fact that he is greater than you and even you think he is greater than you—you have to rule what you think. This is also an obligation of a judge, not only of someone ruling for himself. A judge, in the end, has to make decisions.
Now sometimes a judge can say: okay, I want to rely on someone great; I don’t feel confident enough. But if he decides yes, then he decides yes, and that is perfectly fine. He can go against all the greatest sages of the generation. In a place where he made a clear mistake, then he made a mistake and there are laws of error. But in a place where it is a conceptual disagreement—that is what he thinks—he is the judge sitting in judgment, and on him rests the responsibility, and he has the authority, and he has to make the decision. And that is the meaning of substantive authority. In formal authority there is no such thing, because in formal authority whoever has formal authority has authority, and it is not that I can sit here and decide differently from him, even though I may be right. Because formal authority does not mean he never errs; that is exactly the difference.
With substantive authority one can talk about the value of autonomy. One can talk about the value of autonomy in the sense that even though he is right, since I do not face formal authority but substantive authority, then I—if I am capable—can, and perhaps even should, rule differently if I think differently. Fine.
What happens with formal authority? There too there is some weight to the value of autonomy, though that is already more a question of policy. But it seems to me that way—I don’t know, maybe not. Maybe it certainly comes from a worldview. But I tend to think so, or at least hope it would be so. There are people who think that when the Sanhedrin returns—yes, not ordination but the Sanhedrin—and formal authority basically returns, then all the disputes will be decided and everything will be wonderful: we’ll be one united people and everyone will be calm. To me that is an apocalypse.
Of course—because in the Talmud, if there is no…
[Speaker D] Sanhedrin, then what remains? There won’t be disputes? The very fact that there are disputes there?
[Rabbi Michael Abraham] Was there no Sanhedrin? The Mishnah—it may really be that it was decided. Who told you it wasn’t? When there was the Mishnah, it may have been decided. It may be that even the minority opinion accepted it; it depends. And with Beit Shammai and Beit Hillel, indeed it was not like that, and there really was a crisis there, where each one acted according to his own opinion, like when Rabbi Yosei ate poultry with milk. But again, apparently there had not yet been a ruling in the Sanhedrin. After a ruling in the Sanhedrin, in the plain sense there is no room to do otherwise.
But the question is: a Sanhedrin that has its eyes in its head has to know where to exercise authority, where there is formal authority. A person with his eyes in his head has to understand where to apply authority. What do I mean? Not just “don’t apply it where people won’t accept it and don’t get into quarrels,” but really: where there is no need to decide, there is no reason to decide. And if there are decisions where leaving several opinions in place will create a problem, I don’t know—if there were a Sanhedrin that needed to make a political decision, to make a peace agreement, some diplomatic agreement or another, then here obviously not everyone can do what he wants; here obviously the majority would have to decide, and what the majority decided would bind. You can’t—it’s one decision.
But in a place where we are deciding what is kosher and what is not kosher, for example, if there are people who think differently, it may be that the Sanhedrin would leave it open and let everyone do what he thinks. In a place where that would create some social problem—one person couldn’t eat at another’s house, marry the other, I don’t know exactly what—it may be that the Sanhedrin would decide: okay, here I impose, and I will compel everyone to do what I say.
[Speaker D] Is group slaughter kosher or not kosher?
[Rabbi Michael Abraham] Yes, fine, so I’m saying: today people think that when there’s a Sanhedrin, they’ll decide, and then there won’t be Sephardim and Ashkenazim anymore, and customs like this and customs like that. And that’s the dream, the vision of redemption—that the Sanhedrin will come and it will determine everything. In my view, that’s not the vision of redemption at all. In my view, the vision of redemption is that when there is a Sanhedrin, each person will be able to eat what he thinks is permitted and not eat what he thinks is forbidden. And indeed, the Sanhedrin—the Sanhedrin looks at places where decisions have to be made because otherwise it creates problems; there it will decide, and when it decides, that is binding. And it can decide whatever it wants, because it has formal authority. But even when it has formal authority, I think at least, the value of autonomy is supposed to remain. To respect the value of autonomy means allowing the other person to act differently. With substantive authority, I don’t need to ask you at all—you don’t need to permit it. I can do what I think, even if you think differently, even if you don’t want me to do otherwise. That changes nothing. With formal authority, I need your permission, and if you decide otherwise then there’s no choice—I have to do what you say. I’m only claiming that the value of autonomy is a real value. It’s not something that exists only because right now we have substantive authority and not formal authority, and may it be God’s will that speedily in our days there will be formal authority and nothing at all will remain of autonomy. There are people who look at it that way. I don’t look at it that way. I think the value of autonomy is an important value that should remain even in a place where formal authority returns.
[Speaker D] People think that the ones with authority in the Sanhedrin will rule according to their own views.
[Rabbi Michael Abraham] Huh?
[Speaker D] People think the Sanhedrin will be Aharon Barak.
[Rabbi Michael Abraham] Well, I said—it’s a worldview.
[Speaker D] I’m saying, the Sanhedrin will be established, and whatever will be, will be.
[Rabbi Michael Abraham] And therefore I think it’s not for nothing that the Sanhedrin hasn’t managed to be established yet. It hasn’t managed to be established because for now it seems that the people who would populate it would be Aharon Barak. Meaning, a halakhic Aharon Barak. Meaning, he would impose his opinion on everyone. And I think it’s not for nothing that the Sanhedrin has not been established. It seems to me that the attempts to restore the Sanhedrin fail because of these fears. Let’s say this: if a Sanhedrin is established here, I’m fleeing to Australia. Because the people who will sit there will not be people who respect autonomy.
[Speaker B] Where does the value of autonomy come from? Huh?
[Rabbi Michael Abraham] Where does the value of autonomy come from?
[Speaker B] A value—
[Rabbi Michael Abraham] Autonomy—it sounds like postmodernism, you know.
[Speaker B] A value—
[Rabbi Michael Abraham] Autonomy is nourished by the fact that you are an autonomous person. If it has to come from somewhere—don’t you know Monty Python? “We’re not conformists,” everyone shouts in unison. “We’re not conformists,” except for one person who says, “I’m a conformist.” So the value of autonomy doesn’t come from anywhere; you take the value of autonomy. Meaning, people understand that there is such a value. It seems to me it’s obvious as a matter of simple reasoning; it’s not something that needs a source. Again, this is a worldview. People will say, “What do you mean? That’s a value borrowed from gentile culture,” I don’t know exactly what—what do you mean? I think many people would say that. Fine, okay. And they also say it on the assumption that there won’t be a Sanhedrin and everything is fine. But if there were a Sanhedrin with that outlook, I really wouldn’t want to be around. In any case, the point is that the value of autonomy has meaning both in the context of substantive authority and in the context of formal authority, with the differences between them. When there is substantive authority, I can take the value of autonomy for myself. When there is formal authority, the value of autonomy is granted to me. Meaning, if those who hold the formal authority do not agree, then I have to obey—“do not turn aside.” Meaning, I truly have to obey, not because they’ll use unlawful force against me. If they decided, then I have to obey because there is “do not turn aside.” Meaning, formal authority is formal authority. It’s like the Derashot HaRan—maybe I mentioned him once before—he asks: how can this obligate someone? And this really does connect to that same topic I’m trying not to get into. What happens with a rebellious elder? A rebellious elder knows that the Sanhedrin is mistaken. We’re talking about a person qualified to issue rulings. Meaning, he is convinced they are wrong. How can they force him to do something that is obviously, to him, a mistake? To desecrate the Sabbath? What? They don’t force him. Why not?
[Speaker D] Because he’s a rebellious elder. He may do something for himself, but he may not instruct others.
[Rabbi Michael Abraham] It depends. So I’m saying no—why shouldn’t a rebellious elder desecrate the Sabbath? It depends, depends. So I’m saying that HaRan assumes that in some circumstances he is also forbidden to act otherwise. It depends on different views among the medieval authorities (Rishonim), in that same topic I mentioned earlier—the topic at the beginning of Horayot.
[Speaker D] That’s exactly in Horayot: to what extent, if you know yourself, are you forbidden to do it?
[Rabbi Michael Abraham] So I’m saying, one who errs in the commandment to obey the words of the sages—there in Horayot, at the beginning of Horayot, there is a major dispute among the medieval authorities (Rishonim) about what this was said regarding. What the Jerusalem Talmud that you mentioned earlier brings in this context. So HaRan assumes there is such a case, and then he asks: how can it be that they obligate this elder to do something that dulls the soul—sins do dull the soul, and so on—when he knows it is a mistake? So he says yes, but not obeying the Sanhedrin also dulls the soul; that too is a transgression. “Do not turn aside” is also a transgression.
[Speaker D] Yes, like Rabbi Yehoshua with his staff and his money pouch in his hand, yes.
[Rabbi Michael Abraham] Although there we already discussed that it doesn’t represent…
[Speaker B] And that won’t dull it? What? Then that won’t dull the soul?
[Rabbi Michael Abraham] Yes, but he says: from the outset, how can they obligate him? Since not obeying the Sanhedrin is also a transgression, then once you already have to do it, it also won’t dull the soul. But the point is that formal authority is also law; meaning, alongside the value of autonomy there is also the value of obeying formal authority—that too is a halakhic value. So once the Sanhedrin rules, then indeed one has to obey them, and that’s… okay. Basically, the point is that according to the prevalent view, at least until the 16th century, there was an autonomous conception: there really are no formal authorities after the Talmud. Gradually, somehow, a view entered that brings formal authority back through the back door with respect to the Shulchan Arukh, Maimonides, or texts, or the medieval authorities (Rishonim) in general—for example, that later authorities (Acharonim) do not disagree with medieval authorities (Rishonim).
[Speaker D] There are some who don’t—Rabbi Moshe Feinstein…
[Rabbi Michael Abraham] No, Moshe Feinstein also doesn’t so quickly disagree with medieval authorities (Rishonim). He’s just not intimidated by dispute, so it could be that he’ll side with some against others, but people don’t so quickly disagree with medieval authorities (Rishonim), even the bolder halakhic decisors. But yes, certainly—the Or Sameach did disagree, and the Vilna Gaon did disagree with medieval authorities (Rishonim), and fine. That’s why I’m saying that here a certain dispute emerged, but in the background one has to understand that the truly great innovation is דווקא the prevalent conception. The great innovation is precisely the conception that says there is formal authority. Custom? What do you mean, custom?
[Speaker B] A custom doesn’t override Jewish law.
[Rabbi Michael Abraham] Now, in a place where I’m sure the Rema is right and I’m Sephardi—one hundred years ago there was no custom; for me, my grandfather is the custom.
[Speaker D] I’m talking about desecrating the Sabbath—what do you mean, custom?
[Rabbi Michael Abraham] You’re telling me that I’m desecrating the Sabbath? What kind of custom is that? I’m saying that this is desecration of the Sabbath.
[Speaker B] He didn’t say about a prohibition, he said custom. But if the custom doesn’t prevent a prohibition, then there is a custom here.
[Rabbi Michael Abraham] Fine, but I’m saying: what if I think this custom itself is a prohibition? Then I won’t obey it. Fine, so now we need to discuss the laws of customs. But what I’m doing isn’t desecration of the Sabbath; these are matters of custom. So in a place where I say that such-and-such a thing is desecration of the Sabbath—then no, I won’t do it. “If you do not know, O fairest among women, go forth in the footsteps of the flock.” Sometimes they bring that as the source for custom; there’s some Rema like that—they bring there, I think, one of the sources for customs. What does it mean? “If you do not know—go forth in the footsteps of the flock.” So if you don’t have a position of your own, if you don’t know—if Jewish law is shaky in your hands, follow the custom. But if Jewish law is not shaky in my hands, if I have my own position, then what do you mean, custom? What is this custom? If I’m Sephardi and I think the Rema is right, then I’ll follow the Rema. According to Rabbi Ovadia… no, Rabbi Ovadia introduced the idea that in the Land of Israel one should act this way; he didn’t introduce the attitude toward the Shulchan Arukh—that’s not Rabbi Ovadia’s invention. Rabbi Ovadia’s claim that Ashkenazim in the Land of Israel should also act that way—that too is a strange claim, but… he didn’t invent the status of the Shulchan Arukh. So I’m saying that the approaches that seem prevalent today are actually the innovative approaches—approaches that we really don’t find until, say, a few generations after the Shulchan Arukh, when it then really appeared in clearer form. And regarding ethnic communal customs: why can’t I decide that I am now establishing a community for myself, or joining another community? You can. You know, Rabbi Blumentzweig—I once heard this from him in Yeruham, the yeshiva head—he said that custom contains an inherent contradiction. Because you are obligated to obey custom, but how is a custom born? A custom always begins as a deviation. A custom is basically when you started doing something that the law does not tell you to do; otherwise it would be law, not custom. Meaning, until now they didn’t do it, and now suddenly you decided to do it, so you breached a boundary—“one who breaches a fence will be bitten by a snake.” And now that you breached it, everyone has to follow you, because there is an obligation to obey customs—yes, “the first bandit conquered it,” or whatever the Talmud says. Meaning, the first bandit who conquered that road—now everyone has to walk on that road. I don’t know, the ways of custom are wondrous, and a large part of the laws of custom are themselves custom: how one customarily relates to custom. Meaning, there really aren’t so many actual laws of custom. If there is a local halakhic authority and I live in Tzippori, can I decide that I’m now moving to Tzfat and then I follow the local halakhic authority there? Certainly—move. So nowadays, when community is ethnic and not… yes, then that’s a problem, because the community is ethnic; it’s not geographic. Geographic. Now, one of the problems is that you can’t change place. If you were born Ashkenazi, you’re Ashkenazi. How can you change place? In the past, when custom was determined by location, you could move elsewhere, and then fine—you’re now a resident there, assuming you really moved, and now you follow the custom of the new place. But in our generation, where custom is an ethnic custom, it’s impossible to break free of it. That’s one of the problems of… that’s why customs have become so draconian. It wasn’t like that in the past. I think that today the Ashkenazi-Sephardi, Rema-Shulchan Arukh custom comes from this. Once the custom is ethnic, there’s no way to abandon it. Meaning, except perhaps by setting up a religious court or doing—there are various ways like that—but just wait a little, just wait a little, it’ll work itself out. Okay, continue. Fine, so what is it? In about another three minutes it’ll work itself out. Prophecy? No, I don’t have prophecy. In any case, the point is—the point is that the value of autonomy, in the end—it’s like I wrote in an article: what is true is that, in the end, most halakhic decisors do not hold the autonomous conception. But on the other hand, if someone is autonomous, why should he care what most halakhic decisors say? Meaning, when the question is whether to be autonomous or not to be autonomous, the way to decide it is itself found within that very dispute. There are those who will say, fine, most halakhic decisors say otherwise—but I’m fine, I’m autonomous. So if I’m autonomous, then on the question of autonomy I also decide autonomously. It’s that kind of loop. So therefore the fact that most halakhic decisors say otherwise doesn’t mean anything. Meaning, if you’re in an autonomous position, then you… what? Circularity. Yes, exactly—that’s the circularity. Is it a numerical majority and an authoritative majority? Is it a numerical majority and an authoritative majority? If you accept that a numerical majority and an authoritative majority determines things. Meaning—no, it’s difficult. Why, why didn’t they accept the… if there was a majority in stature and a majority in number for Beit Hillel, why not follow them? Why Beit Shammai? Why? Is it a quantitative majority or a qualitative majority? A majority in wisdom, a majority in people. As Tosafot comments on that—that was the problem there, because otherwise they really would have followed the majority. And the dispute was over the question of what counts as the majority: the majority of people or the majority of wisdom. That was the dispute. So there was a dispute about who the majority was, but the assumption was that yes, one follows the majority. Fine.