Authority and Change in Halakha, Lesson 2

Table of Contents

• Substantive authority and formal authority
• The supreme court of the generation and punishments beyond strict law
• Communal powers and quasi-Sanhedrin bodies
• Acting as their agents and the scope of local religious courts’ authority
• On what basis did you judge me? and the claim of the supreme court of the generation in Rabbi Yosef Karo
• The sealing of the Talmud and its unappealable authority
• The mechanism of validity and the proofs from Maimonides regarding renewed ordination
• The motivation for sealing the Talmud as a solution to historical dispersal
• The king-and-Sanhedrin model and the explanation of “a court may administer lashes and punish”
• The historical accident and halakhic imperialism in managing mundane affairs
• Babylonia versus the Land of Israel: the Exilarch, ordination, and official authorization
• The relationship between the rabbinate and the modern state, and the distinction between halakhic questions and administrative questions

Summary

General Overview

The text draws a distinction between substantive authority and formal authority, and argues that full formal halakhic authority exists at the Torah level only for the Sanhedrin and does not exist today, while in practice ad hoc hierarchical substitutes developed over the generations, such as the supreme court of the generation and powerful communal bodies. It distinguishes between limited halakhic mechanisms such as acting as their agents and governmental authority, and explains how the authority of the Talmud became fixed as unappealable by virtue of general acceptance and as a historical necessity for preserving a shared framework. It then proposes a historical-halakhic model of two authorities, king and Sanhedrin, and describes a “historical accident” in which the abolition of kingship transferred even mundane powers to the court and created a kind of “halakhic imperialism” that continues to shape the relationship between the rabbinate and government even after the return of Jewish political sovereignty.

Substantive authority and formal authority

The text defines substantive authority as the authority of an expert whom people heed because he knows what is correct, and defines formal authority as authority that derives from institutional status, like a parliament, even without assuming its members are wiser than others. It argues that halakhic formal authority of this sort no longer “takes hold” once there is no Sanhedrin, because that authority was given only to the Sanhedrin. It notes an exception attributed to the author of Sefer HaChinukh, according to which certain powers may be attributed to the supreme court in every generation, while clarifying that in Talmudic language the supreme court means the Sanhedrin, whereas in post-Talmudic language it may be interpreted as the leading sage of the generation or a central court of the generation.

The supreme court of the generation and punishments beyond strict law

The text describes a development in halakhic literature in which powers were attributed to the supreme court of the generation even without ordination, and argues that there is no clear source for this but rather a development meant to fill a lacuna and prevent anarchy when there is no authority at the top of the pyramid. It brings an example found in the halakhic decisors about an incident attributed to Rabbeinu Tam and the Rosh involving cutting off a woman’s nose, even though Torah punishments do not include mutilation and, aside from lashes, Jewish law has no such corporal punishment. It explains that the proposed justification is that the supreme court of the generation can act this way, and that such actions were recognized de facto by rabbis and halakhic decisors of the time and afterward, within the principle that “a court may administer lashes and punish not according to strict law” when the times require it.

Communal powers and quasi-Sanhedrin bodies

The text presents examples of historical bodies that were granted a certain sovereign authority over Jews in a given region even though they lacked the formal halakhic validity of ordination, such as the Sanhedrin established by Napoleon and the Council of the Four Lands. It describes the Council of the Four Lands as a central rabbinic body in Central Europe that all the communities in the region agreed to accept as the highest authority, and as a body that functioned to some extent like a governmental authority recognized by the non-Jewish regime and granted autonomy to enforce its rule. It raises doubt as to whether similar autonomy existed in the France of Rabbeinu Tam, and points to the principled difficulty of having parallel legal systems within one state, especially in relations between a Jew and a non-Jew.

Acting as their agents and the scope of local religious courts’ authority

The text distinguishes between powers created more or less out of nothing and attributed to the great sages of a generation, and the law of acting as their agents as a mechanism rooted in the Talmud in Gittin and Bava Kamma. It argues that acting as their agents does not replace the Sanhedrin, but rather allows local courts to adjudicate common matters involving financial loss, mainly monetary law, when there are no ordained judges, or when ordination exists in the Land of Israel but not in Babylonia. It emphasizes that the judges act as agents of the ordained authorities, but that this does not amount to governmental authority for legislation or binding public rulings unless the public has accepted it upon itself. It notes that the idea of acting as agents of ordained judges who have already died is a fascinating innovation in the laws of agency and, in his view, a legal fiction. He adds that the fact that this is a Talmudic enactment gives it validity, whereas any contemporary attempt to create a similar mechanism would run into the question, “Who authorized you?”

On what basis did you judge me? and the claim of the supreme court of the generation in Rabbi Yosef Karo

The text cites a case from Rabbi Yosef Karo’s responsa Avkat Rokhel in which a litigant asked, “On what basis did you judge me?” in order to receive the reasoning behind the ruling, and presents a dispute with the Mabit, who tended to require writing the reasoning. It describes Rabbi Yosef Karo’s position, in which he refused to write it because he saw himself as the supreme court of the generation, and therefore “you have no one before whom to complain,” and no one who can overturn his ruling. It interprets the right to ask “On what basis did you judge me?” as a functional right for the purpose of enabling a complaint to another court, not as a right to know the reasoning on “human rights” grounds, and explains that according to his approach, when there is no higher instance above the court, the demand makes no sense.

The sealing of the Talmud and its unappealable authority

The text describes the halakhic ethos according to which Rav Ashi and Ravina sealed the Babylonian Talmud, and Rabbi Yohanan the Jerusalem Talmud, but raises doubts and cites evidence among the medieval authorities (Rishonim) for Savoraic or Geonic additions within the Talmud itself, such as discussions in Tosafot on Ketubot concerning Rav Acha and comments by medieval authorities (Rishonim) on a passage at the beginning of Kiddushin as a Savoraic addition. It stresses that despite textual fluidity, in the period of the Geonim and the medieval authorities (Rishonim) the Talmud was viewed as a completely authoritative source, “like the supreme court,” and “no one disputes it,” so that once the Talmud’s conclusion is clear, it cannot be disputed. It notes that Maimonides and the Shulchan Arukh were not accepted with the same fully binding status as the Talmud, and cites the Rosh in chapter 4 of tractate Sanhedrin and Maran’s mention in the Shulchan Arukh, according to which only the Talmud cannot be disputed, whereas the Geonim may be disputed.

The mechanism of validity and the proofs from Maimonides regarding renewed ordination

The text asks why the authority of the Talmud has validity, and distinguishes between the question of motivation and the question of the binding halakhic mechanism. It presents Maimonides’ innovation regarding the renewal of ordination: since in the future ordination and the Sanhedrin must return, there must be some mechanism for restoring them even after the chain of ordination has been broken, and Maimonides grounds this in the agreement of all the sages of the Land of Israel. It notes that the source of the criterion “the sages of the Land of Israel” is unclear, and suggests the possibility that it is connected to the rule that ordination is performed only in the Land of Israel. It mentions the sixteenth-century ordination controversy between Maharlbach in Jerusalem and Maharib in Safed together with Rabbi Yosef Karo, including the claim that the requirement of “all the sages of the Land of Israel” gives the sages of Jerusalem veto power. It suggests that the mechanism by which the Talmud received binding status is similar to the general agreement of all the sages of Israel, as a substitute for appointment from above.

The motivation for sealing the Talmud as a solution to historical dispersal

The text argues that the motivation for sealing the Talmud was the need for a framework that would prevent chaos in the absence of a national hierarchy, especially with the dispersal of Torah centers throughout the world. It explains that two alternatives would have failed: leaving in place a classic hierarchical authority model, which would collapse without a Sanhedrin, or writing a rigid code of rulings, which would break down in the face of different circumstances and local disputes. It presents the sealing of the Talmud as a “brilliant” decision to create a binding canonical text that is not a code but a framework for give-and-take, one that allows many interpretations but requires engagement with the same sources and the same modes of discourse. It argues that this created an intellectual cohesion in halakhic discourse for two thousand years despite cultural and geographic dispersion, and that without it “we wouldn’t be here today.” It compares the question to the encounter with Ethiopian Jewry, which did not accept the Talmud upon itself, and the question of its theoretical obligation to it.

The king-and-Sanhedrin model and the explanation of “a court may administer lashes and punish”

The text presents the model of the Ran in Derashot HaRan, according to which there are two parallel authorities—king and Sanhedrin—with interpretive confusion regarding the division of powers and the possible conflicts between them. It argues that the authority that “a court may administer lashes and punish not according to strict law,” in Choshen Mishpat of the Shulchan Arukh, originally derives from the king’s authority to act against the law when the times require it in order to close breaches that pure law does not solve. It describes a process in which, with the abolition of kingship, the Sanhedrin absorbed the king’s powers “because there can’t be a vacuum,” and therefore the Nasi of the Sanhedrin functioned de facto as a king. From there it explains the attribution of the line of the Nesi’im to the house of David through Hillel the Elder down to Rabban Gamliel and Rabbi Yehuda HaNasi. It interprets “the scepter shall not depart from Judah” as referring to the Exilarchs in Babylonia, and “nor the ruler’s staff from between his feet” as the source of the legislator’s authority from the king, and explains that the king acts contrary to Jewish law in situations of necessity just as a court does so in an emergency enactment.

The historical accident and halakhic imperialism in managing mundane affairs

The text argues that because the documented Oral Torah already belongs to the period after kingship, we have grown used to a situation in which the court also handles mundane matters, and he sees this as a “historical distortion” created by necessity rather than the original model. He brings examples from tractate Moed Katan about road repair and the appointment of water distributors by the court, and from the Shulchan Arukh about the procedures of the seven leading townsmen, voting, compelling the minority to follow the majority, bylaws, and taxation, and argues that these are not a “halakhic source” but rules of administration and procedure that entered Jewish law because of the governmental vacuum. He describes how this consciousness shapes an outlook in which rabbis are supposed to determine “everything,” even public decisions that are not halakhic, and explains that the Ran seems strange only to someone raised within the after-the-fact situation that became second nature.

Babylonia versus the Land of Israel: the Exilarch, ordination, and official authorization

The text reads historically the discussion in Sanhedrin 5a as a race for authority between the Land of Israel and Babylonia, in which ordination exists only in the Land of Israel, but in Babylonia there is an Exilarch with governmental recognition who appoints judges and manages public life. It distinguishes between the professional-spiritual authority of ordination and governmental authorization to appoint judges, and compares this to a modern judge who needs both professional qualification and state appointment. It presents the Babylonian Talmud’s conclusion, according to which authorization derived from the Exilarch in Babylonia is valid throughout the world, whereas authorization from the Land of Israel is valid only for the Land of Israel, and describes this as an expected return to a model in which there is a king opposite the supreme court. It argues that the sages of the Land of Israel opposed this because they had grown accustomed to a situation in which the Sanhedrin concentrated even mundane powers, and compares this to modern positions that advocate halakhic imperialism as opposed to the independence of political authority.

The relationship between the rabbinate and the modern state, and the distinction between halakhic questions and administrative questions

The text argues that the return of secular Jewish political authority intensifies the confusion, because historical habit causes people to view the very fact that the state decides matters as a “rebellion,” even though in his opinion the existence of secular authority is not inherently problematic on the conceptual level, but rather restores a forgotten model. It distinguishes between political questions that are halakhic—such as returning territory—where one can understand the demand for rabbinic decision-making and where, theoretically, even a Sanhedrin could decide, and questions that are not halakhic—such as municipal voting procedures and tax distribution—where there is no justification for automatically referring the matter to a halakhic decisor. He argues that procedural sections in the Shulchan Arukh are, in his view, “procedures” that arose from reasoning and practical need, and were sometimes supported associatively by “follow the majority,” even though the respondents themselves understood that this was not a direct source, and therefore added, “besides, it’s impossible to manage otherwise.” He notes as an example a radio program by Rabbi Zilberstein on Kol Berama about solving “secular” problems from within Jewish law, and sets against this his own claim about spheres of authority and the distinction between Jewish law and public administration.

And I understood that this applies only to Torah-level Jewish law. And at the end of the lecture—I think it was at the end of the previous lecture—I distinguished between two kinds of authority: substantive authority and formal authority. I said that substantive authority is like the authority of a professional, someone you listen to because he knows better than you do. You simply want to do what is right, so you listen to someone who knows better than you what is right. Formal authority is authority that stems from status, or office, or function—like the Knesset, for example. You don’t have to assume that the people sitting in the Knesset are smarter than we are; you can’t assume that. Their authority does not come from the fact that they are right. It comes from the fact that this is the Knesset, it was elected, and it is the institution authorized to establish the laws. But afterward you said that this no longer applies. What do you mean, no longer applies? It may be that you didn’t quite follow… It no longer applies once there is no Sanhedrin. That authority is given only to the Sanhedrin. Meaning that nowadays it doesn’t apply. Yes, meaning that this authority is given only to the Sanhedrin. I said, except for the Sefer HaChinukh, who wants to argue that this is true of the supreme court of each generation. “Supreme” there does not mean in the professional sense. In Talmudic language, the supreme court means the Sanhedrin. But in post-Talmudic language, the supreme court means the greatest court of the generation, or the leading sage of the generation, or something like that. In halakhic literature, various authorities developed that are granted to the supreme court of the generation—and that is not the Sanhedrin; they are not ordained. Ordination ended. There is some dispute about exactly when it ended, but somewhere around the Talmudic period or a bit afterward. For example, the halakhic decisors bring that Rabbeinu Tam and the Rosh—one of them, I think—cut off the nose of a woman who committed adultery. And the claim was: after all, you cannot impose corporal punishments—even an ordained court, maybe only extralegally. Because in terms of Torah punishments, there is no corporal punishment other than lashes. Cutting off limbs does not exist in Jewish law. But the claim is that the supreme court of the generation can do this. And as long as, say, Rabbeinu Tam and the Rosh were considered in their time to be the supreme court of the generation. That, for example, is the kind of thing that appears in the halakhic decisors. By the way, it’s not clear what its source is. Meaning, there is no clear source for it, at least not that I know of. But somehow this idea of the authority of the supreme court of the generation does develop among the decisors. It seems to me that part of it is simply filling a lacuna. I mean, after all, it is clear what the idea is of having some authority at the top of the pyramid. You need order. Now once there is no supreme court in the sense of a Sanhedrin, no ordained judges, that’s a recipe for anarchy. And so hierarchical patterns somehow emerge, in some senses out of thin air. Meaning, there isn’t really a genuine source, but somehow it developed—various ad hoc hierarchies developed. So the supreme court of the generation really enters into Jewish law. Of course there are other things, like, I don’t know, the Sanhedrin established by Napoleon, the Council of the Four Lands. These are various places where some kind of real sovereign authority was given over the Jews—again, of a particular region. And then once again a kind of Sanhedrin-like structure suddenly began to develop, even though again there was no ordination, there was nothing. In the formal halakhic sense there is no authority there, but authorities do emerge out of nowhere. What is the Council of the Four Lands? The Council of the Four Lands was in Central Europe. There developed there—several regions came together; then they were called “lands,” but these are not identified with countries that exist today. Bohemia, Moravia, I don’t remember all the… that’s the Czech Republic, I think. In other words, somewhere in Central Europe, if I remember correctly, there was some central rabbinic body that all the communities in the region agreed would be the highest body. And that is rare. And it basically started functioning a bit like a state, or like an actual governing authority that had power—and of course the non-Jewish government also recognized it. Meaning, they were given autonomy to make decisions and act and impose their authority. That was probably true with Rabbeinu Tam as well. With Rabbeinu Tam there was Jewish recognition. His greatness—he did not have formal authority. He was not sitting as some court that the Jewish world had empowered to make decisions. But de facto. No, the non-Jews, I’m telling you. Ah, the non-Jews? I don’t know. I don’t know whether there was some kind of—in France of that period I find it hard to believe that they gave the Jews that kind of autonomy. At least as far as I know the reality there. They collect taxes from them, so there has to be someone they come to, some kind of court Jew they have. No, it could be that someone is appointed over tax collection. The question is whether they give him authority to make legal decisions—not about taxes, but to judge people, yes, even in monetary law, meaning instead of the state’s courts. That is not a simple matter. Look here in Israel, with us—how complicated it is and how much people don’t want to give courts authority, and rightly so, because there has to be some legal order. There is a legal system. You cannot have dual systems here. What happens if a Jew has a dispute with a non-Jew? Meaning, where does it go? Which legal system applies to such a case? It’s very complicated. Meaning, granting authority to the Jews is not just permission; sometimes it was permission, but not always. There is a legal logic here that says you cannot afford parallel legal systems with completely different values, not according to the laws set by parliament, or the king, or whoever rules that place. What about the law of “we act as their agents”? “We act as their agents” is something else. That is the solution they found when there were no ordained judges, but that law really does not replace the Sanhedrin. The law of “we act as their agents” merely gives local courts authority to adjudicate matters that are common and involve financial loss. The Talmud in Bava Kamma talks about that. And that’s it. In those cases, a court of three can judge between two people and issue a ruling. Otherwise even that could not be done. You operate as agents of the holy court, but that is not some governmental authority. Meaning, they cannot make decisions, legislate; their rulings do not in principle bind the public unless the public accepted them upon itself. And this mechanism could theoretically be used for renewing the Sanhedrin? Today they wouldn’t even do this for a local court, I think—again, unless necessity forced it. It’s good that the enactment of “we act as their agents” was made in the Talmud, because otherwise it would never have arisen—or the medieval authorities also did this—but afterward I doubt whether it would ever have emerged at all. Meaning, the enactment of “we act as their agents” is considered a Talmudic enactment, and therefore it receives some kind of authority. Meaning, if someone today did something like this, people would ask him: who authorized you? Meaning, who are you? So yes, in principle, one can also today do what the Talmud did. But the fact that the authority of the Talmud—I haven’t talked about that yet, I will—the authority of the Talmud we accepted like the supreme court, and therefore if this is their enactment, then it is already considered something valid. So in short, the authorities given to a court—except for the view of the Sefer HaChinukh, as I said—in the standard conception are given to the supreme court, meaning the Sanhedrin. I said that in some senses a bit of this was also transferred to a great court in later generations—great in the sense that it is actually greater, not the Sanhedrin, not the highest court institutionally, but the court regarded as… I’m even remembering now in Avkat Rokhel, which is the responsa of Rabbi Yosef Karo, he writes there in one of the legal rulings—it’s a ruling he sat and wrote in his own court, and the Mabit was also sitting there; there were many disputes between them. So the Mabit—someone requested: “Write for me the grounds from which you judged me.” What does that mean? In the Talmud there appears this idea that a litigant has the right to demand: write me the reasons why you ruled that I am liable, or why you obligated me in the case. On the face of it, you write this so that he can complain against you—meaning go to another court and say: look, these are the reasons; these are not correct reasons, let them overturn the ruling. Even though there is not really authority to overturn the ruling of another court, but never mind, that is what the Talmud says. So you can ask the court to write you “from where you judged me.” And the Mabit indeed argued—who was also, I think, in the minority opinion in the ruling, if I remember the case correctly—and he said yes, they should write them the reasons, and if they want, let them convince another court, I don’t know. And Rabbi Yosef Karo insisted that he was not willing to write them “from where you judged me,” because he is the supreme court of the generation. There is no one before whom you can complain. Meaning, I am the greatest, so no one can overturn my ruling. Very interesting. But then what about their right to know on what basis you ruled? What? It’s only in order to complain; there is no such independent right. Why? But on the level of human rights? A right in the Talmud—the Talmud did not give such a right. He says maybe it’s not just, fine, but the Talmud does not give such a right. At least that’s how he interpreted it. He claimed that this right exists only for the possibility of complaining. If you have no possibility of complaining—say before the supreme court, if it judged you—there is no point in asking “from where you judged me.” To whom will you complain about the supreme court? To the Sanhedrin? Even though the Sanhedrin does not generally judge random people off the street—they judge perhaps a king, or they judge, never mind—but on the conceptual level there is no point in asking “from where you judged me” when there is nothing you can do with it. Study it later during evening study, review the ruling, fine. There is nothing to do with it. Okay, in any case, that authority is given to the supreme court. The view of the Sefer HaChinukh that I mentioned means a great court even in later generations, but straightforwardly it is to the supreme court, meaning the Sanhedrin. But it continues further as well. I think I spoke about this once—I no longer remember in what context—it continues all the way until the sealing of the Talmud. And of course the very concept of the sealing of the Talmud is itself subject to many disputes. In the accepted halakhic ethos, Rav Ashi and Ravina sealed the Babylonian Talmud, Rabbi Yohanan the Jerusalem Talmud. Maybe they sealed the Jerusalem Talmud in the fifth century, I think, sixth, something like that. They sealed the Babylonian Talmud—highly unlikely that this is exactly how it happened. At least today it is commonly accepted otherwise. Tosafot at the beginning of Ketubot discusses the question whether “Rav Aḥai” who appears there in the Talmud is Rav Aḥai Gaon or the amora Rav Aḥa. Tosafot says that every Rav Aḥa in the Talmud is Rav Aḥai Gaon; specifically there he says it is the amora. But the very fact that he opens the discussion—no, but there are Tosafists who say that every Rav Aḥa in the Talmud is Rav Aḥai Gaon. There was no amora Rav Aḥa; every Rav Aḥa is Rav Aḥai Gaon. And at the beginning of Kiddushin there is a passage that several medieval authorities write is a Savoraic addition. Page 2 of Kiddushin: “the way”—is “way” read as masculine? There is a very strange discussion there. In fact, when I read the passage, before seeing those medieval authorities, I said: this isn’t the Talmud. It just isn’t. It is clear this was not written by the same people; this is something else. And afterward I was happy to see that the medieval authorities indeed comment that it is a Savoraic addition. There are all kinds of places—today when scholars say this, people are outraged; among the medieval authorities it appears. Not all that much, but there are places here and there where the medieval authorities write that there are Savoraic or Geonic additions. You have to understand that Rav Aḥai Gaon is the author of the She’iltot, meaning he is the son of Rav Hai Gaon. We are talking about the end of the Geonic period. You have to understand: the Savoraic period had passed, the Geonic period had passed; we are talking about the tenth, eleventh centuries, almost already the period of the Rif. Okay? That is a crazy addition. It means 500 years after the Talmud was written. Fine, so one has to say: certain additions entered in. That still does not mean the Talmud was not sealed. Texts have a certain dynamic. The accepted academic claim is that the Talmud took several centuries to crystallize. Meaning, it was not a process of Rav Ashi and Ravina “sealing” it; it may be that they did significant work of collecting and editing, but in the end there was no sharp act of sealing. Rather, it was something that took several centuries to crystallize into the text we know today. In any case, one way or another, at least by the Geonic period this already appears, and certainly by the period of the medieval authorities it is clear that, from their perspective, the Talmud was perceived as a completely authoritative source—like the supreme court. Meaning, one does not argue with the Talmud. Yes? Anything that the court of Rav Ashi and Ravina sealed—nobody debates it. It is not open for discussion. What is the meaning of… and that’s it. Meaning, from then on there are attempts to create additional authorities—Maimonides, the Shulchan Arukh—but nothing was ever really perceived in the full way. Some succeeded more, some less. Nothing was perceived fully like the Talmud. Nobody argues with the Talmud. One can make creative interpretations, one can propose things, I don’t know, say there was a scribal error. Fine—claiming a scribal error is not arguing with the Talmud; it is claiming that an error occurred. Once the conclusion is that this is what the Talmud says, you cannot disagree. That is agreed by everyone. And the Rosh also writes in Sanhedrin, chapter 4, that that is where it ends. Meaning, only with the Talmud. Meaning, everything after the Talmud, including the Geonim—who in the time of the Rosh were perceived as supreme authorities, the way we relate to the medieval authorities today—he says no: only the Talmud has authority. The Geonim do not have authority. He brings there four or five views—the Raavad and Baal HaMaor and his own position—and he discusses all the views of the medieval authorities there, and a certain sage he mentions, each with a different view: whether you can disagree if you have a reason, whether you can disagree even without a reason, just because it seems so to you, whether you have proofs, whatever. But the question is—and the view of the Rosh, and this later appears also in Maran, who even mentions it in the Shulchan Arukh—is that only the Talmud cannot be disputed. What is the meaning of this matter of the authority of the Talmud? Why did it suddenly receive the status of the supreme court? Well, one can ask this in two ways. A: why did they do it? And B: why, once they did it, is it valid? Meaning, what is the halakhic mechanism that gives this thing validity? These are different questions. The question of why there is motivation to do it—what is gained by doing it if the Torah tells you only the supreme court? What are you adding beyond what the Torah says? That is the question of motivation. But motivation is nice; who says the thing is valid? That one can do this? I have lots of motivations to do lots of things, but there are things Jewish law does not allow one to do, even though the motivations are good and proper. So these are two different questions. As for the question why it is valid, this brings us to—I think I mentioned Maimonides on the renewal of ordination last time, I think, right? Maimonides has an innovative idea. He claims that in the future, ordination will have to return, they will reestablish a Sanhedrin, “and I will restore your judges as at first.” How will that happen, Maimonides asks? There is a rule in the laws of ordination that a person can be ordained only by a court that is itself ordained. Meaning, once the chain of ordination is cut off, you can no longer continue it. This is something that is not reversible; you cannot reconstruct it and restore it. So Maimonides says: then how can it be that in the future the Sanhedrin will return? There is no choice but to conclude that there is nevertheless some mechanism that can restore the matter from below. Maimonides apparently was unwilling to accept that, I don’t know, Elijah the Prophet would come and ordain people, or some mystical processes like that. He does not accept that. This is supposed to be grounded in the rules of Jewish law. That is his assumption. Not all the medieval authorities agree. I do not know anyone who writes explicitly against him until perhaps the time of Rabbi Levi ibn Habib and the beginning of the later authorities, in the ordination controversy in the sixteenth century. But among the medieval authorities there are hints, different inferences. In the Rashba, I think, it seems he does not agree with Maimonides. But this is not… I don’t think there is any explicit statement, at least none that I know of. What is the meaning of this whole thing? What is it based on? So Maimonides claims—again, his motivation for saying this, or his proof that there must be such a mechanism, is: what will happen in the future? How does it happen? So what is the mechanism? The mechanism is that you need the agreement of all the sages of the Land of Israel. By the way, I don’t know why he decided on the Land of Israel and not all the sages of the Jewish people in general, but that is what he decided. It’s interesting where he took it from; it isn’t clear. The Religious Zionist crowd naturally loves this, because it shows the special quality and importance of the Land of Israel. Maybe. I don’t know. In any case, that is what he says. This is a halakhic ruling… even when the center moved to Babylonia—there, when Rav Ḥisda imposed a fine in Babylonia, they said to him: what, “Ḥisda, Ḥisda, are you collecting fines in Babylonia?” No—even though the Torah center is in Babylonia. In the Land of Israel there were ordained judges. In the Land of Israel at that time there were ordained judges. What is written that there is no—I don’t remember that… that one does not judge fines in Babylonia, or compulsion regarding a bill of divorce there in Gittin, or in Bava Kamma—that is because in the Land of Israel there were ordained judges. I didn’t understand that. Of course there were—look in the Talmud in Sanhedrin page 5, for example; there is literally a race for authority there between the Land of Israel and Babylonia, very interesting there. Whoever reads it through historical glasses—the passage there about Rav Naḥman as expert for the public—there is an interesting story there, that they attack him for collecting fines not because he is not ordained but because he is in Babylonia. No, no—not ordained, because in Babylonia there is no ordination, and therefore they do not judge fines. If an ordained sage from the Land of Israel came to Babylonia, he could judge fines. No problem at all. He is ordained. Explicitly in the Talmud. Yes. An ordained sage—and also in Maimonides, all the decisors. An ordained sage can judge all over the world. He has to be ordained in the Land of Israel. But after ordination ended, Maimonides basically extends ordination, only he transfers it to all the sages of the Land of Israel. Meaning, perhaps this comes from that idea—that ordination is done only in the Land of Israel. So Maimonides is basically saying: what am I doing? I am renewing ordination from below. Usually ordination is top-down: the Holy One blessed be He ordained Moses, Moses ordained Joshua, and so on. It just shifts the problem downward—who defines who is a sage in the Land of Israel. Fine, but that is another question. I am asking where Maimonides got this criterion from in the first place. How practical it is, and whether it can be defined—that is a more practical question. But right now I’m asking where this theoretical idea comes from. Why specifically the sages of the Land of Israel and not all the sages of the Jewish people? Assuming I know how to define who is a sage and who is not. Fine? Who is a sage and all that. By the way, in the ordination controversy in the sixteenth century there was no argument about who was a sage. There was an argument about the issue itself, whether it was right to renew ordination. But precisely this point was bizarre there. It was clear that the sages under discussion were the ones arguing there. Rabbi Levi ibn Habib headed the sages of Jerusalem, and Rabbi Yaakov Beirav—and Rabbi Yosef Karo as well—headed the sages of Safed. And no one challenged that they were the relevant sages of the Land of Israel. The only question was: okay, should ordination be renewed or not? It was very interesting there because the sages of Jerusalem had a double advantage. First of all, they thought it was wrong to renew ordination. Second, since Maimonides requires all the sages of the Land of Israel, then even if we are mistaken, as long as we do not agree, you cannot renew ordination even if you think you should, because you need all the sages of the Land of Israel and we do not agree. That was interesting there. Then they started discussing whether perhaps a majority of the sages of the Land of Israel would suffice, since “the majority is as the whole,” and the majority were in Safed at that time. Very interesting, anyway. It’s a fascinating give-and-take. In any case, for our purposes: yes, so why? I said that the mechanism by which such an agreement probably receives validation is that we are dealing here with the general agreement of the public—or if not the public of the Land of Israel, then all the sages of Israel. Once everyone agrees that the Talmud has authority, this is probably perceived as the appointment of a Sanhedrin—as though appointing a Sanhedrin. And the great innovation is that usually ordination and the appointment of the Sanhedrin come from above. Here there is an innovation somewhat resembling something democratic—not exactly democratic in the full sense of majority rule, certainly not equal rights for everyone, since only the sages determine things here. But there is indeed something here that transfers the reins to human beings. Meaning, the powers are transferred to human beings, and basically if all Israel agrees, that becomes a substitute for the appointment from above by the Holy One blessed be He through Moses our teacher and the ordinary chain of ordination. That is Maimonides’ innovation. Now I assume that the mechanism by which the authority of the Talmud receives validity is a similar mechanism. It is not all the sages of the Land of Israel; it is all the sages of Israel in general. Meaning, all the decisors agreed that the Talmud was sealed and cannot be disputed. That is the mechanism that gives validity to the authority of the Talmud. But what was the motivation? The motivation is fairly clear. After all, without authority there will be chaos. Right? So why don’t they do this today? Why is the same logic not applied today? What happened there? It seems to me—I think, at least I don’t know whether consciously—but there was at least some intuition there, perhaps even a historically unconscious one, which seems to me very interesting. Let us say the authority of the Talmud was accepted in the Geonic period and onward. Okay, we are already talking around the eighth, maybe eighth to tenth century CE. And yes, the Savoraim still disputed the Talmud; there are parts of the Talmud that are probably Savoraic, meaning it still was not unequivocal then. What happened there? If we look at history, we should know that when we were in the Land of Israel there was a very orderly hierarchical structure. The Sanhedrin, then courts of the tribes, then city courts of twenty-three under the Sanhedrin. These appointed courts of three for monetary matters. There was a very clear hierarchy. “If a matter is too wondrous for you,” you go to the Sanhedrin. If you don’t know, you go up and ask a question. Of course the Sanhedrin also decides who will be on a court, who is ordained, who is not ordained. The judicial appointments committee was also the Sanhedrin; it was not only the supreme court. It is like today—the supreme court is also on the judicial appointments committee. So they had a good precedent. In any event, there was a clear hierarchy there. What happened when we moved to Babylonia? From the Land of Israel the whole business weakened or loosened, because after the destruction there was of course no autonomous government in the Land of Israel. Rabban Yohanan ben Zakkai—that is the destruction. Rabban Yohanan ben Zakkai is actually just before Yavneh. He requested “Yavneh and its sages.” That is the period of the destruction, meaning even before the period of the tannaim. Today we call all the sages of the Mishnah tannaim, but the tannaim in the stricter sense really begin with the first generation of Yavneh: Rabban Gamliel, Rabbi Eliezer, and their disciples—their continuers, their disciples. So in the Land of Israel at that time, after Rabbi [Yehuda HaNasi], let us say, which is already the end of the Mishnah, by the time of the Talmud there is no need even to speak. There is no secular government, no Jewish sovereignty in the Land of Israel. There is still a Sanhedrin. There is a Sanhedrin in Yavneh and a dynasty, the dynasty that heads the Sanhedrin, a dynasty traced back to King David through Hillel the Elder, down to Rabban Gamliel, Rabban Shimon ben Gamliel, Rabbi Yehuda HaNasi, Rabban Gamliel the second, and so on—all that dynasty. They are all from the house of David, by the way. All from the house of David because it relates to that passage I mentioned in Sanhedrin page 5. It’s very interesting, by the way, to read it through historical lenses. There is literally a race for authority there between Babylonia and the Land of Israel, because a significant Torah center was created in Babylonia with the Exilarch. And the Exilarch receives authority from the government in Babylonia, authority to be the ruler of the Jews—the secular ruler of the Jews. He appoints judges, he runs Jewish life entirely. Again, I do not know exactly what happened with disputes between a Jew and a non-Jew; I don’t know the details. But in broad terms one sees this already in the Talmud and other sources. The Exilarch was a king. Therefore the Talmud said, “The scepter shall not depart from Judah”—these are the Exilarchs in Babylonia, there in Sanhedrin page 5, “who rule the people of Israel with a scepter.” Meaning, “scepter” means rule, the royal staff or governing staff. The Exilarch was also from the house of David—one parent from one side and one from the other, Tosafot says, I think. He also had to be from the house of David because he stands in the place of a king. And then what happens is that a race for authority emerges between these two centers, and the question is whose authorization is valid in relation to the other. The Talmud there in Sanhedrin discusses this: what happens if someone was authorized in Babylonia and received permission from the Exilarch—can he judge in the Land of Israel? And what if he was authorized by the head of the Sanhedrin in the Land of Israel—can he judge in Babylonia? The Talmud’s conclusion—of course this is the Babylonian Talmud—the Babylonian conclusion is that the authorization in Babylonia, the permission in Babylonia, is valid for the whole world. The authorization in the Land of Israel, the permission in the Land of Israel, is valid only for the Land of Israel. And this is very interesting. It is like the argument between halakhic decisors and kabbalists: what happens when there is a contradiction between Kabbalah and halakhah? The decisors say halakhah prevails. The kabbalists say Kabbalah prevails. And again the question is what one does with that dispute itself. So here too, the sages of Babylonia dispute with the sages of the Land of Israel, and the Babylonians determine that the authority is with them. But the fact is that this is probably what was accepted. It was the larger center, the more dominant one, with greater power. In the end, what happens is that ordination remains in the Land of Israel and under the authority of the head of the Sanhedrin; the Babylonian Talmud agrees to that. The Babylonian Talmud agrees to that. It is a clear law. But the secular permission to serve as a judge—you need both these things. For example, a judge today has to receive professional authority, meaning he must be qualified as a lawyer, jurist, judge, whatever. He gets that from the university, the bar association, I do not know exactly what. Those are professional qualifications. But that is not enough to be a judge. To be a judge he has to be appointed by the state. Then the governing authority turns him into someone who is not only professionally qualified but formally authorized—which reminds me, and brings me back, to substantive authority and formal authority. Meaning, professional authority gives substantive authority, because people say: he understands, he judges well, he can be a judge, he is fit to be a judge. And formal authority comes from the governing authority—the secular authority, let us call it that in this context. Right? So too in the context of that Talmudic passage in Sanhedrin, the relevant secular authority is only in Babylonia. And the Sanhedrin is considered a secular authority too, but only in the Land of Israel. The professional authority, or the authority that can ordain, is only in the Land of Israel. Again, not because they were necessarily greater professionals, but because ordination exists only in the Land of Israel; that is a rule accepted also by the sages of Babylonia. Now, what happens… Are there differences between the Jerusalem Talmud and the Babylonian Talmud? Of course there are many differences. No, in determining practical Jewish law? Yes, there are differences. One of the rules in Maimonides—and it’s a very interesting rule—is that Maimonides does not always rule like the Babylonian Talmud. There are those who phrase it as: Maimonides rules like the Jerusalem Talmud. That is not correct; it is a mistaken formulation. Maimonides may rule like the Jerusalem Talmud. Usually the rule is that if there is a dispute between the Babylonian and Jerusalem Talmuds, the law follows the Babylonian Talmud. That is how almost all decisors rule. In Maimonides there is a rule that says that with him there is no rule. Meaning, sometimes he does rule like the Jerusalem Talmud even though the Babylonian disagrees, and sometimes he doesn’t. Where? Maybe it seems more logical to him; I don’t know according to what he decides. But the rule is: don’t pigeonhole him as ruling like the Jerusalem Talmud against the Babylonian. Now what stands behind all this? This competition between Babylonia and the Land of Israel, the nature of the authorities—there is a very interesting historical process there, which essentially works like this. Originally, in the governing system described in the Torah, there is a Sanhedrin and there is a king. There is a secular authority—the king wears a kippah, whatever, but in terms of his areas of responsibility and authority he is the secular authority—and there is the Torah-spiritual authority, which is the Sanhedrin. What is the relationship between these two authorities? There is great confusion among the commentators about this, because of course there can be collisions between them. What happens when the king determines one thing and the Sanhedrin another? The Ran has a model on this in his Derashot HaRan. He argues that there is a kind of duplication. It is not a division of authority; it is duplication. Therefore the king has a legal system of his own, secular, but he judges in the same matters judged in court. Again, a kind of multiplicity of authorities built into the halakhic system according to the Ran. Many of the medieval and later authorities do not accept this; it seems very strange to them. Why should a king establish a legal system? There is a Sanhedrin, and that is the accepted legal system. What is the king doing there? Let the king manage wars, policy, material life, pave roads, I don’t know, take care of practical life—what is he doing there? But there was also a king and a prophet. There? Sometimes the king decided, sometimes the prophet decided. Look, they threw Jeremiah into a pit. No, those are power struggles. And how did Samuel relate to Saul? Those are power struggles. I am speaking about the authority that Jewish law gives each body. What happens in practice? In practice we are all human beings, and everyone struggles and wants more authority. I am asking about the model, not about what happened in reality. What happened in reality requires discussion—there are people involved. But first of all, what is the model? What does Jewish law say? So in two words, that is the Ran’s model. And many people do not understand him, and in my opinion they do not understand him because they are unaware of the historical background, which is why I am going into this. Where does this authority of a court to “strike and punish beyond the law” come from? There is a section in the Shulchan Arukh, in Choshen Mishpat, that even today a court can strike and punish beyond the law when the hour requires it. Where does that come from? Where does that invention come from? In my opinion it comes from the king. And what happened was essentially the following. Originally, the Ran is right: there were two authorities, a king and a Sanhedrin. And there was also competition between them. Where the law gave no answer, the king legislated laws of his own. There were no rabbinic enactments. In my opinion there were no rabbinic enactments—not in principle. Maybe here and there, but not… enactments needed because the times require it—that is the king’s role. Meaning, the Sanhedrin dealt with interpreting the Torah and determining Torah law, not with legislation, enactments, or any of that, because those are things not directly related to halakhah. You establish things because life presents problems, so additional rules are needed. That is the king’s role—to close the loopholes that halakhah opens, or does not solve in life, issues that arise. Okay? Therefore the Sanhedrin and the king indeed had a kind of division between them. The king could carve out authority for himself where pure halakhah did not provide a solution. Life requires some intervention—striking and punishing beyond the law. What happened when the monarchy ended? First Temple… in the beginning of the Second Temple period there were already not really kings, of course. What happens then? Naturally, it is clear that if, say, a plane crashed with the entire government on board—in Poland something like this happened some years ago—what happens in such a situation? I assume another authority—say even the entire Knesset and the president are gone as well. What would be done then? I assume the Supreme Court would take the reins and rebuild those systems, but in the meantime it would take the reins, and rightly so. Meaning, there cannot be a vacuum. Okay? Meaning, if one authority disappears, another authority will take unto itself the powers of that authority, because someone has to run things. Now when kingship disappeared and only the Sanhedrin remained, the Sanhedrin took on, absorbed into itself, the powers of the king. Therefore the head of the Sanhedrin suddenly became from the house of David. It says, “The scepter shall not depart from Judah, nor the ruler’s staff from between his feet.” What is “the ruler’s staff”? That is the Sanhedrin. So does that mean that the legislator too has to be from the house of David? No. “The scepter from Judah” means the king—or the Exilarch—the secular authority; that has to be from the house of David, from the tribe of Judah. “And the ruler’s staff from between his feet” means that the legislator receives his authority from the king. Meaning, the king must give him secular authority for it to have force. But the spiritual, professional, legal authorization, and the determination of halakhic law, the interpretation of the Torah and everything—that is done by the Sanhedrin; that is not the house of David or anything like that. But what happened—just a second—what happened after kingship disappeared is that these two authorities converged into the Sanhedrin. Then the head of the Sanhedrin effectively functioned, insofar as possible, as a king. That is why the head of the Sanhedrin suddenly had to be from the house of David. There is no halakhic source for this. He had to be from the house of David because, de facto, practically speaking, he was also king, not only head of the Sanhedrin. Both authorities were in his hands. Therefore the entire line of heads of the Sanhedrin for generations were all from the house of David—through Hillel the Elder, but all from the house of David. Yes. But what the king did was provide answers where halakhah did not provide answers. But what you said afterward—that this leads to the possibility of striking even though one is forbidden to strike, or something like that—that is already against halakhah, no? No, no. The king acts against halakhah. Where the hour requires it—where the hour requires it—he can, just as a court can strike and punish beyond the law, that too is against halakhah. Where the hour requires it, they can act even against halakhah. It is a temporary enactment or an addition, and that, I think, is originally what the king did. Now what happens? Look how the continuation works. It is a fascinating historical process, because it has effects down to our own day, effects that I think people do not understand correctly in the halakhic system because of it. We are stuck inside something without understanding that it is only a historical accident; it is not really the original halakhah. Now when the Sanhedrin received the king’s authority—and by the way this is the whole period familiar to us. In our halakhic culture we do not really know the period of the kings. The Oral Torah as we know it—the Mishnah, the Talmud—meaning the documented history of halakhah is already history after the monarchy. In halakhah, is a king not post facto but ideal from the outset? That is a huge dispute. Don’t drag me in there. That is Samuel and Abravanel and the commandment to appoint a king in the Torah—it seems not, while in Samuel it seems yes. Fine? So if it is not ideal from the outset, then what is the model…? No, so the Ran argues that it is ideal from the outset. There is a dispute there, and obviously it bears on this, I agree. Right now I am presenting the Ran’s conception, and I also think he is right. That is another discussion. Now what happens once the Sanhedrin basically takes on both the powers of the king? It begins also to make the needed halakhic repairs. Then suddenly the Sanhedrin begins to enact enactments, issue decrees, and all kinds of things of that sort. Why? Because now, when halakhah does not manage to cope with reality, there is no one else to cope with it; the Sanhedrin also performs the king’s role. For example, to strike and punish beyond the law; for example, to enact decrees and rabbinic enactments. All these things, or many of them, if not all, were originally done by the king. And after there was no king, the Sanhedrin suddenly did them. Then what happened? We basically got used to seeing these as the role of a court. Throughout history until our own day—open the Shulchan Arukh. In the Shulchan Arukh there are sections or laws devoted to the question of how to run the “seven good men of the town,” the municipal administration. How do they conduct votes there? Does one follow the majority? What can the majority force on the minority and what can it not? What are the rights of a citizen? Who counts as a citizen of the town and who does not? What does that have to do with halakhah? What does halakhah have to say about that? Nothing. There is no source for it in the Torah, no rabbinic enactments, nothing. So why is it in the Shulchan Arukh? Because we are still living under that same historical accident in which secular functions too were handed over to the court. To this very day, the accepted view among many people in various study halls is that basically the rabbi, or Torah authority, is supposed to decide everything. Every public decision—the Council of Torah Sages, the Torah sages, something like that—public decisions are entrusted to rabbis. Why? The source is there. The source is there because, in effect, the sages manage mundane life too, not only halakhah. But that is a distortion. It is a historical distortion created by the fact that when kingship was abolished, all powers came to the court—and rightly so, yes? Now what does “distortion” mean? Fine—so long as there is no authority, then very good. But that is not really what halakhah says. People now think that this is the real thing. Therefore they do not understand the Ran. When the Ran talks about two such authorities, with all the duplications, it looks so strange to an eye accustomed to a situation that is entirely post facto—and we forgot that it is post facto. We already understand it as: this is just what halakhah is. And the Mishnah in Moed Katan says that the court repairs the roads on the festival intermediate days. The Ministry of Transportation is the supreme court. It is supposed to organize the roads—not only for accidental killers fleeing to refuge, but also for pilgrimage. Fine? They are responsible for the roads being in order. For the water supply. They appoint the distributors of water and things like that. What is this? Where does this come from? It is obvious that it comes from the fact that in the Mishnaic period there was no secular government. There was no secular government; everything converged on the Sanhedrin, with the head of the Sanhedrin at its head. Then what happens is: we got used to the idea that everything goes to halakhah. Then this halakhic imperialism emerged, according to which halakhah determines everything. Halakhah determines whether one follows the majority in city council. Halakhah determines how bylaws are established. Halakhah determines to whom the bylaws apply. Halakhah determines how municipal taxes are apportioned. Halakhah determines a great many such things. What does that have to do with halakhah at all? And what is Maimonides’ view? What does he do with the laws of kings? No, is he of the Ran’s opinion? In Maimonides there is something written that is not entirely clear. It is not very detailed. There are some differences between him and the Ran; there is a major debate as to how different it is. Because Maimonides does say there that the king must ensure that people do not depart from the way of the Torah. In that sense the king strikes and punishes beyond the law. The question is whether the king can also establish a legal system of his own and judge people—that is not written in Maimonides. So the question is what that means. One can say that this is implicit. What does it mean? You have to set rules by which you punish those who do not walk in the way of the Torah. Even that requires some kind of legislation. Fine, it is vague in Maimonides; it is not entirely clear. Who else wrote, besides Maimonides, about what would happen? The Ran writes; commentaries on chapter 2 of Sanhedrin too, and among the medieval authorities you can see bits and pieces here and there. It’s true that a systematic treatment you will almost not find. Mainly the Ran and Maimonides. Wait, but after the monarchy was abolished, the court took upon itself to deal also with secular matters. Later, nowadays—no, you say people do not understand—nowadays, can one say that they grasp this as substantive authority? That the rabbis know better than politicians what to do? No, it is not substantive authority in the sense that they know better. Their question is whether it is substantive or formal; they hold that the rabbis also have authority in mundane matters. What? Whether it is substantive or formal is another question, but they hold that they have authority in mundane matters too. And I think that is the result of that same historical accident: we lost kingship, everything converged on spiritual or halakhic authority, and since then we are used to the notion that halakhah determines everything. When a question arises in the community, they send the question to a halakhic decisor—to the Noda B’Yehuda, to the Rashba, whoever. What should we do? What are we supposed to do? Why are you asking him? Decide, vote, I don’t know, do something. Yes, hold a vote. What do we do today? Do we send a question to a decisor, or does the Knesset determine the laws and we go with that? Exactly. What happens in Haredi society is that they continue with this post-facto arrangement as though it were ideal from the outset. No, I just wanted to understand the thinking. No—again, I am not claiming, don’t misunderstand me, I am not claiming that halakhah has nothing to say about political questions. Of course it does. On the question whether to return territories or not return territories, I can definitely understand the claim that this should be determined by rabbinic authority, because that is a halakhic question. I am making a theoretical claim, not a practical one. There are political questions that are halakhic questions, and in that context I too can certainly hear the claim that, say, if there were a Sanhedrin today—there is no such authority, but if there were a Sanhedrin—it is quite possible that it would indeed determine it. Because it is a halakhic question: is it permitted to return territories or forbidden to return territories, under what conditions, whatever. Whether it is a case of “be killed rather than transgress” or not, all kinds of such disputes. What I am talking about now are questions that are not halakhic questions. You need to determine how the majority decides in a municipality. No one brought a legal clause there. In the Land of Israel, yes, you can bring legal categories: the commandment of conquering the land, the commandment of settling the land, the prohibition of “do not show them favor.” There are halakhic clauses there; the discussion is a halakhic discussion. Okay? But in this context there is no halakhic discussion. It is deciding what the binding procedures are. So why are you sending that to the Noda B’Yehuda? What does it have to do with him? Decide for yourself or ask a municipal expert or I don’t know what. Do what… Now what intensifies the confusion even more today is that suddenly a secular authority has returned to us, which did not exist before. Then what happens is that people are still used to this perspective, as though—what do you mean, what are all these people doing here at all? Beyond the fact that they are not religious, it is much deeper than that. Even if they were religious. In the traditional halakhic conception people are unwilling to accept such a thing, because authority is rabbinic authority. It is not only a question of whether they act correctly or incorrectly—not only whether the government or the Knesset acts correctly or incorrectly, but why are they deciding at all? It is somehow a rebellion against the Torah of God that they decide. But that is not true in principle. Again, it depends what they decide—each thing on its merits—but on the conceptual level it is not true. It simply restores a situation that we have already forgotten. Now where do we see this? In the Talmud in Sanhedrin there on page 5. What happened there? Something amazing happened. In the Land of Israel kingship disappeared, everything became concentrated in the Sanhedrin, right? Then suddenly kingship arose in Babylonia. Now once kingship arose in Babylonia, what is called for is a return to the previous model. Okay, so there is a king—more or less, the most dominant secular ruler was the Exilarch in Babylonia. So there is a worldwide secular authority over the Jews, of course in Babylonia, and the supreme court in the Land of Israel. The same split that always existed. Why are there two authorities? Because they did not transfer what was kingship, what existed in Babylonia, to the Land of Israel. What do you mean they did not transfer it? There they had the Exilarch and did not give one here. It was a different regime. The Romans did not permit a secular Jewish ruler in most periods. Herod, Agrippa. In Babylonia, yes—they were willing to accept such a thing. Now what happens is that basically what was called for—and in my opinion this is also the Babylonian Talmud’s ruling—what was really called for was to return to the original model. Here we have a king, and you are the supreme court; we accept that. We will not ordain in your place. The professional authority you will give—that is the Sanhedrin—but the secular authority we give. And that is what is ruled in practice there, by the way. But the sages of the Land of Israel were stuck where the Haredim are stuck today. I am offering a certain historical interpretation here, but it seems to me correct. They were stuck—after all, they had been living for centuries, throughout the Second Temple period, essentially in a situation with no king, with authority entrusted to the Sanhedrin. They no longer knew anything else. What do you mean? The Sanhedrin determines everything. The Sanhedrin repairs roads, as I said. The Sanhedrin enacts rabbinic enactments and decrees, and all the secular powers too—everything belongs to the Sanhedrin. Suddenly some king rises in Babylonia and wants powers for himself. Who does he think he is? Then the sages of the Land of Israel claim—and this appears there in the Talmud—what do you mean? What we determine, namely ordination, determines things for the whole world. Because they are used to the situation that prevailed before this authority arose in Babylonia. But the sages of Babylonia, in response, claim: what are you talking about? I’m saying this is in the subtext, but that is how I think the Talmud should be read. The sages of Babylonia basically claim: not at all—we are returning to the original model. Here there is a king; you are the supreme court. We accept that. We will not ordain in your place. The professional authority, yes—you give that, because that is the Sanhedrin. But the secular authority—we give that. And that is in fact what was ruled there. Historically, though, what the Exilarch was, was authority granted by what we might call the Babylonian empire. So now—it is like the Council of the Four Lands. It can only apply where the Babylonian empire rules. Since the Babylonian empire does not rule the Land of Israel, they rightly said: the Land of Israel is like your Council of the Four Lands. Fine. First of all, the discussion concerns the whole world outside the Land of Israel. That first of all. Regarding the Land of Israel, that is another question. In fact, in the Land of Israel the Sanhedrin has more authority than in other places. What, there were Jews in Italy—were they under the Exilarch’s authority? In principle, yes. That seems to be the case. But that is strange—that is exactly what I wanted to ask. It is not necessarily a Haredi mistake, what you are saying. It is simply a different place, different roads. No, no. But there apparently was authority there, such that the Exilarch really was the central secular authority for Jews throughout the world. But how can that be? That has nothing to do with what was happening in the Land of Israel or what people remembered. It doesn’t matter. He can determine various rules, say all the questions that appear in the Shulchan Arukh—whether one follows the majority in municipal votes—you should ask the Exilarch. Let him say what to do. Even in the Land of Israel? Even in a municipality in the Land of Israel? Again, so long as the gentiles there do not allow us, then they do not allow us, so it does not matter anyway. But once they do allow it—and certainly the authority to judge was indeed given, after all they did judge also in the Land of Israel—then the question is who is the secular authority that is supposed to give them permission to judge? The claim of the Babylonian Talmud was that it is the Exilarch. So I think this is very interesting there, because it parallels to a considerable extent—not exactly, but to a considerable extent—what happens today. Because what happens today too, all these disputes: is there really a secular authority with independent standing, and alongside it a spiritual, halakhic, Torah authority? We do not have a specific such authority; let’s say the leading halakhic decisors are considered the parallel to the spiritual authority. And the question is what the relation is between those two. Those who advocate halakhic imperialism are basically holding the same position we see there in the sages of the Land of Israel in this Sanhedrin passage. They are essentially stuck in that same historical accident, and that is mistaken. Again, one can criticize the state for not following halakhah, for not operating according to proper rules—that is a different criticism. I am speaking about the model itself. Let us say the people there really were God-fearing Jews and really did everything properly. Properly does not mean according to halakhah, because a secular government is allowed to act contrary to halakhah, as I said earlier. But fine—within the framework of fear of Heaven they would be committed to halakhah. So what then? I think that even then, a large part of these disputes would remain. Because people do not accept this. We are so deeply stuck in the thinking of “a court may strike and punish beyond the law.” I never understood why such a thing is Torah study at all. Why is studying these parts of the Shulchan Arukh Torah study? In my eyes it is not Torah study. These are court procedures. Why is that interesting? It is not relevant. It is how to manage secular life. That is why in my opinion these parts of the Shulchan Arukh are also not binding. They do not interest me. What does it have to do with anything? We will determine other rules—whether the majority decides or not. Why should I care what the Rosh wrote, or the Rashba, or the Shulchan Arukh? Why is that interesting? They are writing their opinion on procedural law, administrative law. Their authority is halakhic authority, not authority over procedural law. And where did the Shulchan Arukh get it from? From the medieval authorities. I said—the Rosh, the Rashba, in responsa. And where did they get it from? From their own reasoning. They attached themselves—and this is also very interesting, I once wrote about this—to certain sources, “follow the majority,” but they themselves understood, and I think Menachem Elon puts his finger on this in his book, that it does not actually derive from “follow the majority,” even though they brought that verse. Therefore they always said: and besides, it is impossible to manage otherwise. There was always a great dispute whether to follow the majority on the town council or among the “seven good men of the town” or something like that. Systematically, the Rashba and the Rosh and all the great respondents said: this is “follow the majority,” and besides, it is impossible to manage otherwise. Why do you need “besides”? There is a verse. What is the problem? It is not really “follow the majority”; they understood that too. “Follow the majority” is a source of inspiration. It does not really come from there. So okay, for you it is easier, but say American Jewry? Well? What should it do? I didn’t understand what it should do. America does not need to turn to rabbinic authority for every matter; there too there is secular authority, but not Jewish authority. Okay. But not Jewish authority. So you’re saying there too… There it is not an issue at all. There it is not an issue at all. Meaning, a decision whether to go to war or not—nobody there asks the decisors. But you are talking de facto, not de jure. I am asking according to the model. But according to the model too they never ask. That is the model: they will make decisions whether to go to war or not, they won’t ask the president of Israel. There is authority there, and can the Jews judge him? No. Absolutely not. They have no such power. There is a state. I am not talking about de facto courts. Jews cannot simply act and make their own courts there. They have no judicial autonomy in the United States. We live in a democracy, but they have no authority to do anything official. There is no Jewish secular authority in the United States. And non-Jewish secular authority does not enter this discussion because it is not… But here too the rabbis have no authority. What does that have to do with it? We are not speaking de facto. You asked according to the model I am trying to build. But there is no model that tells gentiles what to do. No, we are not talking about de facto courts. But there is no model for gentiles, no practical framework for gentiles—there is no model. Gentiles do not ask me what to do with my models. Here there are Jews who do not ask me what to do. So here one can discuss what the model is and what the practice is. But with respect to gentiles there is no model, because there is no model—they do not ask me what to do. But what is the model here? Here, the model, as I said, is a government. No, yes—a government. And why do you say a government? Because they are Jews. Not because they are Jews—because they are the government. So in America too they should obey the non-Jewish government? But Israel is supposed to ask you what your model is. Israel is supposed to ask me. Americans do not have to ask me. Why should Israel ask you? Because they are Jews. They need to ask me what halakhah says. So that is what I said—but this is a secular state. So what? De facto they do not ask, but that does not make it okay that they do not ask. Since when is it not okay? Why is it not okay? In their opinion it is okay. What can I do? In their opinion it is okay. Theoretically there could be a non-Jewish prime minister and non-Jewish ministers. Correct. Fine. You’re pushing at an open door. I have written several times that in my eyes this state is not a Jewish state. Okay, but still, if it is populated by Jews, then in the conceptual model you would indeed expect halakhah—or however we call it—that this split between king and halakhah would apply here too, because it is a model addressed to Jews. Whether the Jews accept it or not is a practical question, but there is a model. In relation to the United States there is no model. That is not the question. The gentiles do not ask me what to do. That is a very, very general explanation. When you say there is a model, the model is for someone who accepts halakhah upon himself. What does halakhah say to someone who accepts halakhah upon himself? No—the model says what halakhah says to anyone who is obligated. And there are people who are obligated, even if whoever is in power does not think he is obligated—he is obligated. He does not know that he is obligated. He is mistaken, but he is obligated by Torah law. So he is a sinner. So what? Should I stop saying that desecrating the Sabbath is forbidden because there are people who desecrate the Sabbath? So maybe today it is permitted to desecrate the Sabbath? There is no such thing. Halakhah obligates every Jew, period. If he is not aware of that, then he is mistaken. But a gentile is not obligated by this. I think the discussion is a different one: what are rabbis forbidden to do? What? What are rabbis forbidden to do? Not what is forbidden—what lies outside their domain. Not what is forbidden, but a question of authority. What is the authority of the state, and what is the non-authority of the rabbinate? In areas that are not halakhic, I do not think they have any authority. In halakhic areas, that is another question, because it does not matter who the secular government is. The discussion here was about the authorities—or non-authorities—of the rabbinate. There are two sides to the coin. In the end, there is a radio program by Rabbi Zilberstein, who is head of the religious court in Bnei Brak there in Ramat Elchanan. He has a radio program? Yes. Where? On Kol BaRama. They bring him all kinds of completely secular problems, and he finds the solution within halakhah. That’s why it’s kind of piquant. They’re not secular problems. He brings situations that may look like secular problems, and then he finds halakhic sources and shows that those problems are not secular but halakhic. No, really secular problems. If I told you the problems, they are completely secular. I don’t know Rabbi Zilberstein’s problems, I don’t know the program, but I know him—he talks about halakhic problems. Okay, in any case, that is the picture regarding this division of authority. And again, this division has some aspect touching substantive authority and formal authority, as I said earlier. Because where there are two authorities, how does one determine who the judges are? The formal authority is the authority of the king; he gives the governmental authorization. But there is also substantive authority—and formal authority too, really—in the Sanhedrin, because they determine who is ordained, who is fit to judge. That is also formal; it is not only because they are wise, but because they are the Sanhedrin. So being in the Sanhedrin is also a kind of governmental role, like the judiciary in our system, for example. But I want to go back now—it has taken me much more time than I thought—to the sealing of the Talmud. I asked why, in the sealing of the Talmud, the mechanism might be similar to Maimonides’: once there is general agreement, it serves as a substitute for ordination that comes from above. But I asked what the motivation was. It seems to me that the motivation was—I stand amazed at the decision to seal the Talmud, because in my eyes it is truly one of the most ingenious historical decisions I can think of. It may be that it was not conscious at all; I am not sure the people who were there were aware of it in the way we are now in hindsight. What happened there was that in roughly the fifth century they began to edit the Talmud, and by the tenth century, as I said, it already had full force, okay? The national hierarchical structure that had existed in Babylonia basically falls apart in the tenth and eleventh centuries. Meaning, the Jewish people begin to disperse throughout the world. Until then there were mainly two centers: the Land of Israel and Babylonia. Gradually the Land of Israel thinned out more and Babylonia became stronger. There was also Egypt, but basically the Land of Israel and Babylonia. And in the… yes, there is that myth of the four captives—Rabbi Hushiel, the father of Rabbeinu Chananel, and four Torah scholars who were captured on a ship. There is such a myth. They were taken as slaves and redeemed by Jewish communities around the world. One ended up in Italy, one in France-Germany, one in North Africa, and one in Spain, I think. Jewish communities bought them with money, literally redeemed them. They had been taken as slaves, and they became rabbis in the places they reached and founded Torah centers. And that is basically—again, I do not know whether this myth actually happened or not—but it describes the eleventh century, the father of Rabbeinu Chananel, the period before the Rif. What? Rashi is already the eleventh century. Right, the tenth, yes. This is the tenth century, I think the end of the tenth century. Then the dispersal of Jews from Babylonia begins, or at least crystallizes, and Torah centers are built in other places. Jews had also been somewhat dispersed in other places earlier, but Torah centers emerged then. Now, how can one preserve cohesion around a halakhic legal system of Torah under such conditions? Meaning, so long as we were in the Land of Israel, and even in Babylonia there was still a clear hierarchy. Rav Naḥman, for example, was the chief rabbi in Babylonia. He sat in the house of the Exilarch, was the leading sage of the generation, gave authority to people, determined everything. There was a very clear hierarchy. There were two academies there, Sura and Pumbedita, Nehardea, whatever—but the heads of the two academies were the Geonim, and they were the highest religious authorities. This continued even after the Talmudic period. Okay? There was a clear hierarchy. Any little Jewish fishing village that ran into a problem knew whom to turn to. They look upward and see someone above them. And anyone who looks upward sees someone above him until you get to the top—the Exilarch, the Sanhedrin in the Land of Israel, or Rav Naḥman—but there is some clear hierarchy. Once the whole thing disperses, a very difficult problem is created. Because then Jews arrive in all kinds of places, often not in any organized way. There is some village, I don’t know, ten Jewish fishermen from somewhere, I don’t know exactly. One knows how to write, one knows how to read, and the other eight—I don’t know where they are to this day. What do we do there? Who will determine for them what to do? Whom will they ask? There is no court. We did not divide the whole world into judicial districts under some hierarchy, right? That doesn’t happen. This process happened even without control. So there are two possibilities. One possibility is to leave things as they are—to remain with the classic authoritative structure. That of course would have completely disintegrated. If they had continued with that, it would have completely disintegrated. There was no longer a Sanhedrin, no longer clear hierarchies. Power would have run everything. In each village, whoever had more power would take over. That happened anyway not a little, but at least this would provide some framework. A second possibility would be to write a Shulchan Arukh—to write a binding code of law, cut through all the disputes. A binding legal code, that’s it. From now on, everything rigid. That too would not have held up. It would not have held up; it would have disintegrated. Because in different places there are different people, different circumstances, different ways of thinking—and who is going to decide now when there is a dispute? Some sage from another place doesn’t understand at all how things work here. It doesn’t work. So what do you do? The decision they made was to seal a text of the kind we know as the Talmud, the Gemara. Now, that is the strangest thing imaginable if you think about it. People really don’t understand what this means. You establish a canonical and binding text that is not a code. It is not a set of laws. It is a collection of give-and-takes, and everyone will interpret them in a thousand ways. Almost no discussion ends with a halakhic ruling, and that is the binding code—one may not disagree with it. What do you mean, one may not disagree with it? It doesn’t say anything. You don’t need to disagree. Whatever practical ruling you want to reach, just tell me what you want and I’ll already arrange an interpretation for you that gets it out of the Gemara. There is no need to disagree with it. Something very interesting emerges. They established a canonical, binding text—a framework—but the text does not tell you what to do. What it conveys is a form of discourse, a structure of give-and-take. And that is an amazing decision in my eyes, truly amazing, because in the end it turned out to be the optimal form. Because what happened afterward was a miracle. Wait—did someone decide this? That is what I said—I don’t know if it was conscious. I don’t know whether it was conscious. That is why I say it is the genius of collective wisdom, I don’t know exactly. But wasn’t this already there with the sealing of the Mishnah? No, no. The sealing of the Mishnah is something else. The Mishnah is more cut and dry. In the baraitot there is much more. The Mishnah is more concise and more definitive, and it too was written on the threshold of exile. Remember that—when they went into exile under Rome. And the Babylonian Talmud was sealed on the threshold of the final global dispersion. Therefore there too there is a similar mechanism. But wait—I’m just trying to finish. The point is that this mechanism is amazing. Because what it basically says to us is: look, this is the give-and-take, these are the modes of discourse. This is how we bring proofs. These are the basic sources. One may propose interpretations, but you have to contend with these sources. Your interpretation has to show me how it fits with these sources. If you show that, you are legitimate. I cannot close you down. But it is within the framework. Exactly. There is a framework. It allows many options, but it is within a framework. And in fact halakhic give-and-take is conducted all over the world, despite different study halls and somewhat different styles of thought and learning. Still everyone succeeds in conducting give-and-take with everyone else, bringing proofs, refuting, agreeing, negotiating, and everyone understands that there is something to what the other says even if I do not accept it. Meaning, he is not going off to some other place; it is not a new Torah. It preserved our ability to engage one another from all over the world. That is really unbelievable. For two thousand years we have lived in completely different cultures with no connection to one another. Different ways of thinking, different influences, different constraints—everything is different. And correspondence in a period with no email and nothing—sending letters is a project. And who even knows who is there, to whom to send the letter? How do you even know the rabbis of Spain, of Ashkenaz, of Morocco, of North Africa? Who knows them? And yet they did know them. They sent letters, and somehow they created a framework governed not by a set of rules at all—there are no rules—but by discourse, by the form of discourse. And that form of discourse was preserved, and because of that we are here today. Because of that we are here today. If they had chosen one of the two previous options, I do not think we would be here today. And where would we be? We would be like Ethiopia—communities that did not… Right, there really are difficult issues there. Since they are a very small minority, there is some assumption that we determine things, we are the ones here—what do they call us among the Ethiopians? The “Feranj” decides. No, among the Ethiopians, what do they call those who are not Ethiopian… Feranjim, yes, exactly. So the claim is that we are a very large majority and they are a very small minority, so they cannot… and therefore somehow, despite disputes and tensions, it is taken as obvious. They have almost no Oral Torah at all. After all, they went into exile before the Oral Torah even began. This is a fascinating encounter, by the way, from the perspective of the theory of halakhah. To what are they really obligated? Are they really obligated by what is written in the Shulchan Arukh or in the Gemara? No—they did not accept the Gemara upon themselves. We did. They had already left before anyone even dreamed of the Gemara. Then the question is what really obligates them in halakhic theory, before the practical question of whether I can persuade them or not. A very difficult question. But because this is a small minority, somehow it is probably accepted anyway that they have to synchronize with us in one way or another. And there are many such minorities. I don’t know if there are so many. Listen to that fellow, Avi Chail. Yes—no, there was a new one just now. Who? The one who travels around the world, Doron. Birenboim, yes exactly. In any case, I am saying: this decision is very interesting because it creates authority for a text that says nothing. But that authority has meaning. People think that decisors or commentators do whatever they want, and that is not true. They do not do whatever they want. There is right and wrong even with all the degrees of freedom. Anyone who is inside the discourse understands that there is a discourse here. Meaning, one can persuade, one can bring proofs, one can say yes, this is correct or no, this is not—and that is authority. I think—and now I am just summarizing—that this authority, this insight, had already begun to become clear by around the tenth century. I don’t know whether from the outset they thought of it this way, as I said earlier, but some retrospective awareness had already begun to form, and people understood that one cannot do without it—without establishing some framework that is flexible enough but still a framework, so that not everyone does whatever he wants. And then they fixed the authority of the Talmud. That was the motivation. You asked what the motivation was, not what the mechanism was that gives it force. The motivation was that without this framework we would not be here. And I think that is also the reason why you don’t need anything more afterward. All later attempts to do this—with the Shulchan Arukh and Maimonides—amount to making the mistake of fixing things into a kind of set of instructions, rather than a form of give-and-take. It did not work. It does not work, it cannot work, and there is no need for it to work. Because once the framework was established, that framework has accompanied us until today. We still manage very well with the Gemara today. We can rule in our present reality today. I think that despite all the criticism, we absolutely can do this—provided we understand that we are dealing with a form of discourse and a form of give-and-take, not bottom-line conclusions. Once you understand that, it becomes very relevant to our time too, despite the fact that it talks about oxen and donkeys and slaves and all kinds of things of that sort—precisely because of that. And there is no need to continue this process, because they already did it then. They did it for us. From that point on, the process is only interpretations and possibilities and understanding what the Talmud says in various cases—which is, of course, very important and creative work around this—but there is no need to establish another framework. The framework is already there. And that… maybe say a few words.