Authority and Change in Halakha, Lesson 1

Table of Contents

• [0:00] The authority of the sages – an introduction to the question of Jewish law
• [1:59] The authority of the High Court – the core of the Oral Torah
• [3:18] The prohibition of “do not deviate” – the death penalty and lashes
• [4:40] Maimonides and the Sanhedrin – what happens when there is no court
• [5:59] The commandments of action – detailing Torah and law
• [7:07] Sources received by tradition – oral law versus tradition
• [11:45] The question of change – when may Jewish law be changed?
• [13:30] Torah-level versus rabbinic – how do you tell the difference?
• [15:40] Modern examples – electricity and opening bottles on the Sabbath
• [25:40] the Ba’al Halakhot Gedolot and the commandments – Hanukkah, Purim, and the 613 commandments
• [28:21] Two categories of holidays: Hanukkah and Purim
• [31:18] Maimonides’ approach: “do not deviate” as the source for legislating and interpreting
• [32:31] Conclusions regarding the 613 commandments and whether they are binding
• [41:00] The distinction between formal authority and substantive authority
• [53:25] The source of the sages’ authority and whether it is infallible

Summary

General Overview

The text opens a new topic: authority in Jewish law, and shows how questions of change are necessarily bound up with questions of authority. It grounds the authority of the sages in the passages of “do not deviate” and presents Maimonides’ approach at the opening of the Laws of Rebels, according to which the High Court is the foundation of the Oral Torah, and the obligation to obey it is both a positive commandment and a prohibition, while distinguishing among the kinds of instructions the sages transmit, derive, or legislate. It presents the dispute between Maimonides and Nachmanides about the scope of “do not deviate” with respect to rabbinic enactments and decrees, and defines the essential distinction between Torah-level and rabbinic not as chronological but according to the kind of action performed by the sages: interpretation and transmission versus legislation. Later it distinguishes between formal authority and substantive authority, argues that the authority of the Sanhedrin is formal even if error is possible, and concludes that today there is no “do not deviate” in its formal sense because there is no Sanhedrin and no ordination, and all that remains is substantive authority or authority by force of public acceptance.

Opening the topic of authority and its connection to change

The text presents authority as a foundational topic that precedes the discussion of change, because change in Jewish law involves the question of who is authorized to make changes. It lays out a plan: first to clarify the basis and sources of authority, and only afterward to move to the question of the implications for our time and to the explicit discussion of change.

The source of the sages’ authority in the verses of “do not deviate” and in the structure of the positive commandment and prohibition

The text states that the source of the sages’ authority in Jewish law is found in the verses of “do not deviate” and “according to the Torah that they instruct you,” so that one who does not obey violates both the neglect of a positive commandment and a prohibition. It notes that Maimonides chose to call this framework the “Laws of Rebels” because the focus is on someone who rebels against authority, and it connects this as well to the stubborn and rebellious son as rebellion against parental authority. It raises a question about the difference between “the Torah that they instruct you” and “the judgment that they tell you,” and says he did not check the precise midrashic derivations on that.

Maimonides: the High Court as the pillar of instruction, the prohibition of “do not deviate,” and the punishment of the rebellious elder

The text quotes Maimonides: “The High Court in Jerusalem are the essence of the Oral Torah, and they are the pillar of instruction, and from them law and judgment go out to all Israel,” and explains that “upon them the Torah gave its assurance” means that the Torah is founded upon them. It states that according to Maimonides, anyone who believes in Moses our teacher and in his Torah is obligated to base religious practice on the High Court and rely on it. It cites Maimonides’ ruling that one who does not act according to their ruling violates the prohibition of “do not deviate,” but does not receive lashes for this prohibition because it is a prohibition given as a warning for a death penalty administered by a court, since a rebellious elder who rules against the High Court is executed by strangulation. It offers a conceptual explanation for the rule that there are no lashes for a prohibition that can lead to court-imposed death, so as not to turn it into “an ordinary prohibition” and thereby diminish its gravity.

The scope of Maimonides’ rulings versus the reality of his time

The text clarifies that Maimonides does not rule only on laws that applied in his own time, but writes the Mishneh Torah for all areas of Jewish law, including sacrifices, ritual impurity and purity, and the Temple. It explains that therefore Maimonides’ words about the High Court are not a practical statement for his time, when there was no Sanhedrin, but rather a description of Jewish law as a principled foundation.

Three categories in the sages’ rulings: tradition, derivation, and rabbinic legislation

The text presents Maimonides’ division: matters learned by received tradition, which are the Oral Torah; matters learned through their own reasoning by means of the interpretive principles, where the law appeared to them this way; and matters instituted as a fence for the Torah and according to what the time required, namely decrees, enactments, and customs. It notes that the term “received by tradition” in Maimonides is not simple, and mentions that Rabbi Rabinovitch has an article on its meaning, while distinguishing between tradition, which is reception person from person, and a law given to Moses at Sinai, which is not anchored in a verse. It quotes Maimonides’ language that each of these three categories requires obedience by virtue of a positive commandment, and one who transgresses them violates a prohibition, identifying “according to the Torah that they instruct you” with decrees, enactments, and customs, “and according to the judgment” with derivation through the interpretive principles, and “from the matter” with the tradition they received person from person.

Disputes, tradition, and majority rule

The text cites Maimonides that matters of received tradition are never subject to dispute, and that anything disputed is known not to be an actual tradition from Moses our teacher. It presents that when a dispute arises, one follows the majority, and that when the High Court existed there was no dispute in Israel in the sense that doubts were resolved by it. It raises the argument that the verses deal with a situation of “if a matter is too difficult for you,” where a question is asked, and answers that the authority was understood by the sages as extending also to initiative by the court and not only to answering questions, while noting that this is not explicit in the verse but does have logic behind it.

Moving to the question of change in chapter 2 of the Laws of Rebels

The text shows that just as the discussion of authority opens the Laws of Rebels, so too the discussion of change follows it in chapter 2: a court that interpreted and ruled a law, and after it another court came and saw a different reason to overturn it—the question is whether it can change the ruling of the earlier court. It states that this progression teaches that the ability to disagree and to change depends on the framework of authority.

The “imperialism” of “do not deviate” in Maimonides versus Nachmanides

The text describes Maimonides as a kind of “do not deviate imperialist” and argues that in his view the authority of the sages extends across the whole realm of Jewish law, both Torah-level laws and rabbinic laws. It presents Nachmanides as disagreeing and arguing that the authority of “do not deviate” applies only to interpretation and derivation of Torah verses—that is, to Torah-level laws—and not to rabbinic laws. It places at the center the question of where, according to Nachmanides, the sages’ authority for rabbinic legislation comes from, and notes that Nachmanides rejects “do not deviate” as the source and calls it in this context merely a textual support, without detailing an alternative source.

Defining Torah-level and rabbinic: not chronology but type of action

The text rejects the common understanding that the difference between Torah-level and rabbinic is chronological, and gives as an example that enactments of Moses our teacher—such as Torah reading on Mondays, Thursdays, and Sabbaths, or requiring that the laws of a holiday be taught before the holiday—are enactments defined as rabbinic even though they are very ancient. It also gives the opposite case: laws that take shape in later generations can be Torah-level, such as discussion of the use of electricity on the Sabbath, which according to the Chazon Ish may be a Torah-level prohibition because of building, even though the Torah and the sages did not know electricity. It gives another example of opening bottles on the Sabbath and the controversy over whether this is a Torah-level prohibition, including mention of a pamphlet by the Rebbe of Zutshka and the debates over the details of the caps.

Interpretation versus legislation: the basis of the distinction between Torah-level and rabbinic

The text states that the decisive distinction is between two areas of action by the sages: interpretation and legislation. It presents that interpretation through the interpretive principles creates Torah-level law, whereas legislation of decrees and enactments—such as reading the Scroll of Esther on Purim and lighting candles on Hanukkah—creates rabbinic law. It adds that transmitting a law given to Moses at Sinai, such as the square shape of phylacteries, is Torah-level because the sages are not creating but transmitting. It notes that there are cases in which it is difficult to decide whether a certain law is interpretation or legislation, and that this affects whether it is defined as Torah-level or rabbinic, giving as an example the dispute among halakhic decisors over whether preventing animal suffering is Torah-level or rabbinic, depending on whether it is learned from “you shall surely help him” or instituted legislatively.

the Ba’al Halakhot Gedolot, Hanukkah and Purim, and the count of 613

The text notes that the Ba’al Halakhot Gedolot counts Hanukkah and Purim within the framework of the 613 commandments, and that Maimonides attacks this in the first principle and asks: where did the Torah command lighting candles if Greeks should come and win? It suggests one possible understanding of the Ba’al Halakhot Gedolot’s position as a general Torah-level commandment to establish thanksgiving for deliverance, but notes that this is difficult because the Ba’al Halakhot Gedolot counts Hanukkah and Purim as two commandments and not as one. It raises a possible implication of this approach for future miracles and for Independence Day, if we were to imagine there were a Sanhedrin, and also gives an example from the intermediate days of festivals of the idea that “Scripture handed it over to the sages,” where the Torah gives a general command and the sages shape the content, so that the result is considered Torah-level because that is part of the content of the command.

The dispute between Maimonides and Nachmanides about “do not deviate” in relation to rabbinic legislation and rabbinic doubt

The text presents Nachmanides’ argument that if the authority for rabbinic legislation were learned from “do not deviate,” then one who violated an enactment such as the prohibition of poultry with milk would be violating the Torah-level prohibition of “do not deviate,” and as a result doubt would have to be treated stringently, contrary to the rule that rabbinic doubt is treated leniently. It therefore states that Nachmanides rejects the idea that “do not deviate” includes legislation, and leaves open the question of the source of legislative authority.

Two types of authority: formal and substantive

The text defines formal authority as authority that derives from the institution and the role, like the Knesset, and which is binding even without any guarantee of truth or freedom from error. It defines substantive authority as the authority of an expert, such as a doctor, deriving from the assessment of his knowledge and professionalism, and says that this does not create a formal obligation to obey but at most a rational or moral consideration. In this context it also includes honoring one’s father as a kind of obligation that does not depend on the father being right but on the mere fact that he is one’s father, and it emphasizes that the halakhic authority of the Sanhedrin is formal because it includes both a positive commandment and a prohibition, along with a normative claim against disobedience.

The authority of the sages and the possibility of error

The text argues that there is no need to attribute infallibility or divine inspiration to the sages in order to justify formal authority, and calls such a view childish. It brings proof that the Sanhedrin can make mistakes from the law of the communal bull brought for an erroneous ruling, in which the High Court brings an offering for a mistake. It also gives an example from the Talmudic text in Shevuot about Rabbi Ami and Rabbi Assi, who swore in opposite ways about what Rabbi Yohanan had said, and emphasizes that even if one says “these and those are both the words of the living God,” that does not solve a contradiction in the historical fact of what was actually said.

The sealing of the Mishnah and the Talmud as formal authority: the words of Kesef Mishneh

The text quotes the Kesef Mishneh on Maimonides in chapter 2: if a later court can change things, why do Amoraim not disagree with Tannaim? Kesef Mishneh answers that on the day the Mishnah was sealed, it was accepted that later generations would not disagree with earlier ones, and likewise with the sealing of the Talmud, that from the day it was sealed permission was no longer given to disagree with it. It emphasizes that this grounds authority not in infallibility but in formal acceptance of a binding framework, and remarks that sometimes far-reaching reinterpretations are permitted without necessarily seeing them as “an elegant way of disagreeing.”

The limits of “do not deviate”: only the Sanhedrin, and the approach of Sefer HaChinukh

The text states that the authority of “do not deviate” is given, in the plain meaning of the verses, only to the High Court in the Chamber of Hewn Stone, and presents Sefer HaChinukh as an exception in claiming, “and the same applies to every court in every generation.” It describes this approach as very unusual and says it is quite clear that almost everyone disagrees with it, clarifying that in our day no court has the authority of “do not deviate.”

Authority in our time: public acceptance and substantive authority without the claim of “do not deviate”

The text explains that formal authority in Jewish law depends on a chain of ordination from top to bottom that begins with Moses, who received from the Holy One, blessed be He, and once ordination ceased the chain got stuck, so there is no Sanhedrin today in the classical sense. It argues that the authority of halakhic decisors, councils, or the Chief Rabbinate is not formal authority of “do not deviate,” but at most authority by force of public acceptance or substantive authority of a great Torah scholar. It notes that Maimonides’ innovation regarding the possibility of renewing ordination by the agreement of all Israel is connected to the idea that authority can also be generated from below, and mentions an article by Rabbi Shlomo Fischer in Beit Yishai (Derashot, part two, siman 15) on public acceptance as generating authority. It concludes that today, at most, there exists substantive authority that creates a moral-religious demand to weigh the sage’s words seriously because of the likelihood that he is right, but the formal authority of “do not deviate” “ended with ordination—no later than the Talmud.”

We’re starting a new topic, and it’s the question of authority, and a discussion of questions of authority, and then later on a discussion of change, because usually questions of change are bound up with the question of authority. Even though these are also two separate topics, there’s a significant overlap between them. So first I’ll have a discussion about authority, and then we’ll move on to matters of change, later on, meaning if there’s still time. When we talk about authority, then in Jewish law the source of the authority of the sages is found in the passages of “do not deviate,” and “take care to do,” “according to all that they instruct you,” “do not deviate from anything they instruct you.” Meaning, basically the Torah establishes that the sages have some kind of authority, and someone who casts off their yoke, someone who does not obey, violates a prohibition and neglects a positive commandment. That is, there is a positive commandment to listen to them, and there is a prohibition for one who does not listen to them. Maimonides, at the beginning of the laws of rebels, very often in a halakhic perspective when questions of authority are involved, Maimonides does not write laws of authority, he writes laws of rebels. Rebels are those who rebel against authority. Yes, so also the stubborn and rebellious son, in a certain sense, enters this area—it is basically a kind of rebellion against authority, parental authority in that case. So the laws of rebels really deal with the issue of authority. That’s why the stubborn and rebellious son indeed appears later on in those laws. So Maimonides writes: The supreme court in Jerusalem are the essence of the Oral Torah, and they are the pillar of instruction, and from them law and judgment go out to all Israel. And upon them the Torah is founded securely—“promised” here means stands securely, meaning the Torah is founded on them, not “promised” in the sense of promises, but rather the Torah stands on this. As it says: “According to the Torah that they instruct you and according to the judgment that they tell you, you shall do”—this is a positive commandment. And everyone who believes in Moses our teacher and in his Torah is obligated to rely on them for religious practice and to lean upon them. Meaning, they are the basis of everything, and the most basic foundation of faith and religious-halakhic obligation is really obedience to the supreme court, the Sanhedrin. Halakha 2: Anyone who does not act according to their instruction violates a prohibition, as it says, “Do not deviate from anything they tell you.” And one is not flogged for this prohibition because it was given as a warning for a capital offense by the court, since any sage who rules against their words is liable to death by strangulation. As it says: “And the man who acts presumptuously, not listening…” and so on. Meaning, one who violates “do not deviate” does not receive lashes. Usually prohibitions carry lashes. One who violates “do not deviate” does not receive lashes—why? Because there is a rule in Jewish law that for a prohibition that serves as the warning for a capital offense by the court, one is not flogged. Meaning, if there is a situation where by violating that prohibition I become liable to death, then that means that in principle that prohibition can lead to capital liability. Therefore, in situations where I do not become liable to death, and one might have said, fine, then at least flog him, the person violated a prohibition—no. A prohibition of that sort, which under some circumstances can lead to death, then under other circumstances where there is no death penalty there is no punishment at all, not even lashes. I’ve thought quite a bit about the idea behind this, because the principle seems a little unclear. It could be because they don’t want to diminish the gravity of the prohibition. Meaning, if the Torah gives the death penalty for violating the prohibition, then the feeling is that if you flog someone it will come to be viewed as just some ordinary prohibition, and so they want to preserve the uniqueness of that prohibition. So you should know: this is a prohibition punishable by death, meaning there should be no misunderstanding, this is something very fundamental. Even though it isn’t always punishable by death—but maybe.

But in Maimonides’ time there was no Sanhedrin, right? So what does he mean that one has to listen to the supreme court? Maimonides does not rule only on laws that applied in his own time. What? There was no Temple in his time either. He rules on the laws of sacrifices. After all, in Maimonides’ own time he knew there were disputes among sages. Jewish law in principle says: whenever there is a Sanhedrin, the Sanhedrin has authority. But we’re talking about today. No, we’re not talking about today yet. First I want to understand the infrastructure; afterward we’ll see what happens today. First let’s start with the fundamentals, what the sources are. But in Maimonides’ own time I’m asking what he meant. I explained: in Maimonides’ time he didn’t mean anything; he wasn’t talking about his own time. He was talking about the law. Maimonides, unlike say Rif, Rosh, and most other decisors, rules not only on laws that apply in his own time. He rules on all kinds of laws. Maimonides tries to present a Mishneh Torah covering all areas, and a large part of them did not apply in his own time—like ritual impurity and purity, like sacrifices, like the Temple—they did not apply in his own time. Entire books of Maimonides deal with that. This too is not for his own time. He is not speaking about his own time. Fine, we’ll get to our time later.

What is written in the positive commandment? There are two things there, right? In the positive commandment it says: “According to the Torah that they instruct you and according to the judgment that they tell you, you shall do.” And what about “according to the Torah that they instruct you”? There’s surely a word before that, no? As though there are two things, also “according to the Torah that…” No, that’s just a detailing of the whole… it’s not two positive commandments, it’s a specification. The Torah they instruct you in, and the judgment they tell you. What exactly is the difference, what is “the Torah they instruct you in” and what is “the judgment they tell you”? Maybe “the judgment” is the principles and “the Torah” is the practical rulings, what they tell you actually to do? I don’t know, I haven’t checked. It needs checking; maybe there’s some exposition on it, I don’t know.

All right, so there is a prohibition here and a positive commandment here. Maimonides says that one is not flogged for this prohibition because it is a prohibition given as the warning for a capital offense by the court. Where was it given as a warning for a capital offense? In the case of the rebellious elder. Meaning, the prohibition of “do not deviate”—that is also the prohibition on the basis of which a rebellious elder is punished. It is the prohibition that grants authority over everyone, but if the person reaches the level of legal instruction and meets the requirements of a rebellious elder and does not obey, does not listen to the supreme court or rules against their ruling, then he becomes liable to death as a rebellious elder.

Now Maimonides continues: Whether matters they learned by oral tradition, and these are the Oral Torah, or matters they derived by their own reasoning through one of the interpretive principles by which the Torah is expounded, and it seemed to them that the law on this matter is such-and-such. Meaning, even if these are matters learned by oral tradition. “By oral tradition” in Maimonides is a term that is not entirely clear. There is an article by Rabbi Rabinovitch on this issue, what “by oral tradition” means in Maimonides. Either tradition, or something they understood from the verses in some way, because otherwise if it is tradition then ostensibly that is a law given to Moses at Sinai. But a law given to Moses at Sinai is something not anchored in the Torah at all, but passed down orally. If the matter is passed down orally as an interpretation of the Torah, then it does not enter the literal definition of a law given to Moses at Sinai in Maimonides’ terminology, even though historically that too is a law given to Moses at Sinai. Yes, or they derive it through the interpretive principles by which the Torah is expounded, and it seems to them that the law in this matter is this way. Or matters they made as a fence for the Torah and according to what the time requires, and these are decrees, enactments, and customs. Right, so all the rabbinic enactments and decrees. The first category of laws are Torah-level laws, the second category is rabbinic laws. And for each and every one of these three things, there is a positive commandment to listen to them. And whoever violates any one of them violates a prohibition. For it says, “According to the Torah that they instruct you”—these are the decrees, enactments, and customs that they instruct the public in order to strengthen religion and repair the world. And “according to the judgment”—there, it says. Yes. “And according to the judgment that they tell you, you shall do”—these are matters they derive by legal reasoning through one of the interpretive principles by which the Torah is expounded. “From anything they tell you”—this is the tradition they received, person from person. So “the tradition” is basically the tradition from Moses at Sinai.

Then in Halakha 3 he enters the question of disputes, which is exactly the topic we were dealing with until now, and that’s why this topic connected itself in my mind, so I’m continuing with it. He says: In matters of tradition there is never any dispute, and anything you find disputed is known not to be a tradition from Moses our teacher. He begins to explain: okay, so if it is not tradition, then a dispute arises—what do we do with the dispute? We follow the majority. Then he says that when there was a supreme court, there was no dispute in Israel; rather, every law about which a doubt arose, they would go to the supreme court and they would act accordingly. He is touching a bit now on what happens in our time, but when there is no authority, dispute arises.

All these verses are irrelevant to an instruction that doesn’t begin with a question, right? This whole paragraph begins with “If a matter of judgment be hidden from you,” you have a question, you go and ask and receive the answer. Yes, but once on the website someone asked that question, I think. The sages understood as self-evident that this authority extends also to cases where it comes on their own initiative, meaning not in response to a question. Because the assumption is that if they are in fact supposed to decide questions, then they are probably also supposed to decide what ought to be done. I think one can understand the logic, though I agree that it is not explicit in the verse. But I can understand why they expanded it this way. Whether that itself is a tradition or whether it is a determination of the sages—that is a very interesting question at the logical level, because then the question is why one must observe that itself. Meaning, if the sages themselves decided this, who says that this itself falls under the authority of the sages? It is something that presupposes itself. Okay.

If I say “right” in response to something you said, does that offend your honor? No. It happened that I said “right” in response to something you said. Does that offend your honor? No. Because there is such a thing in honoring parents. In honoring parents, if I say “right,” if my son says to me “right,” then it says that this offends… it offends… it goes against honoring parents. Because if she says “right,” that means she thinks she has the… that she is in a position to criticize. As if she can agree or… It’s an honor to me. You waive your honor. Not waive, the opposite. Because if I say “right,” that means I can say “not right.” “Not right” is also an honor to me. If he says “right” to me, all the more so. If he says “not right” to me, that means I’m also someone one can argue with. Fine.

Good. Then he enters the issue of dispute and what happens when the courts disagree. And he says that this is not in the time of the Sanhedrin. Later he gets exactly to his own time, but we start with the foundations, and we’ll get to our own time later. Then in Chapter 2—sorry, not Halakha 2, Chapter 2—he arrives at the question of change: if the supreme court interpreted through one of the interpretive principles and issued a ruling, and after them another court arose and it saw another reason to overturn that ruling—can it change what the previous court did? Here too, in Maimonides, the discussion of authority comes first, and the discussion of change follows from it. Meaning, how can one disagree, how can one change, what do you do in such a situation.

Okay, so I’m focusing on Chapter 1, on the question of authority. Maimonides is, as is known, an imperialist of “do not deviate.” Meaning, Maimonides’ position, as I read it here—and he repeats it in Sefer HaMitzvot and elsewhere, in his introductions—is that the authority of the sages extends over all the realms of Jewish law. Meaning, both Torah-level laws and rabbinic laws. Nachmanides disagrees with Maimonides, both here in his glosses on that root principle and on the Torah, and he argues that the authority of the sages applies only to interpretation and exposition of Torah verses, meaning only to Torah-level laws. But for rabbinic laws, the authority of the sages does not derive from “do not deviate.” And the interesting question is where it does derive from—we’ll get there.

In any case, before I get to that, I need to draw a distinction between the various halakhic categories that arise here, and then we’ll see the dispute between Maimonides and Nachmanides. There is basically a division of the halakhic world into two master categories that subdivide further. There is Torah-level law and rabbinic law. Torah-level law is the earlier parts that Maimonides brings, and in the ordinary classification that’s Torah-level law—though for Maimonides it is a little problematic. And the decrees, enactments, customs, and what he brings later are rabbinic laws. What is the difference between Torah-level law and rabbinic law? People have, I think we discussed this, a tendency to see this as a chronological distinction. Of course there is also a halakhic distinction, right? A Torah-level doubt is ruled stringently, a rabbinic-level doubt leniently. So it’s not only chronological. But the basis, the category of Torah-level versus rabbinic—what is defined as Torah-level and what is defined as rabbinic—people think that what was given at Sinai is Torah-level, and what was created afterward is rabbinic. Ostensibly, I think that’s what many people would tell you if you asked them. And that is not true. It’s a big mistake.

For example, laws such as: Moses ordained for Israel that they should expound the laws of the festival on the festival, or thirty days before the festival, or the public Torah reading on Monday, Thursday, and Sabbath. This is an enactment of Moses our teacher. In the simple understanding, even though this law was created by Moses our teacher, it is a rabbinic law, not a Torah-level law. So chronologically these laws are as old as Torah-level laws, and yet normatively they are rabbinic laws. And likewise the other way around: there are laws that are new laws that can be created today, and yet they will be Torah-level laws. For example, according to the Chazon Ish, using electricity on the Sabbath is a Torah prohibition, because it is building, at least in certain contexts. And of course the sages or the Torah never dreamed of electricity. This law was created only now, but it is a Torah-level law.

Now with electricity you could say, fine, that can be understood because the reality didn’t exist. Meaning, the reality of electricity didn’t exist; it was discovered only in our time, or a few generations ago, so it is no surprise that only now people identified the prohibition. But really this is an application of an ancient prohibition. The labor of building is, after all, one of the primary categories of labor listed in the Mishnah in tractate Sabbath. And if that perhaps is a tradition and perhaps not—in my opinion it is not a tradition, but maybe it is—then it too was given at Sinai, that list of labors. But there are Torah-level laws that arise and are disputed, and the reality already existed beforehand, and still they are Torah-level laws.

A possible example is opening bottles on the Sabbath. This controversy about opening bottles on the Sabbath arose when I was still in my cheerful Bnei Brak period. There was some very, very old Jew there, I think he was the elder of the rebbes, the Rebbe of Zutshka. And he wrote a pamphlet about opening bottles on the Sabbath. You know, rebbes have these kinds of things that become their issue. Meaning, he focused on this, and rebbes often have these issues they focus on, and for them this really becomes the essence of Torah—that’s the feeling. This was one of the things; there were other things too. But he really wrote a pamphlet and fought over it, arguing that opening bottles on the Sabbath is a Torah prohibition. Again, I’m speaking now about the details—which bottles, which caps, what exactly is permitted and what exactly is not, whether it is building or demolishing or what exactly this is. In any event, there are all kinds of arguments until today. Not everyone agrees that it is prohibited at all, and certainly not that it is a Torah prohibition. And here we are speaking, say, of a situation where the caps existed earlier—again, it depends on what type of caps—but it was not born together with the creation of the cap. Okay? So it can happen that a law is newly formulated even if the reality already existed earlier, and still the one who formulates that law will claim that this law is a Torah-level law. Not like electricity, where the prohibition was created together with the discovery or invention of electricity. So that means that chronology is not a good criterion for determining what is Torah-level law and what is rabbinic law.

A Torah law that we derive today through an a fortiori inference is also Torah-level, right. Exactly. Meaning, every exposition, also an analogy of terms, any matter at all—every general-and-specific rule, every interpretation or exposition we make today—will in simple terms produce a Torah-level law in principle. We’ll get to the question of authority and then we’ll see, because for example today we don’t really have the knowledge of how to use the interpretive principles. Though an a fortiori inference we do have. And, to many people’s surprise, in Chafetz Chayim on the Torah, for example, here and there—I remember when we started reading it—he occasionally formulates some law on the basis of an a fortiori inference or something like that in his commentary on the Torah, not just as part of his ideas. And it seems clear to him that this is not only interpretive comments on the Torah. I think when you read it, it is clear that he intends to say that this is a law, derived from an a fortiori inference that he made. For example, I remember one case: “you shall surely help him” regarding your fellow’s animal—that you have to help him. What happens if you see a child? Or someone who has difficulty carrying, an elderly person, no matter, someone who is having trouble carrying. So he says there is a Torah-level obligation to help him; it is an a fortiori inference from helping with animals. If that applies to animals, then to human beings certainly all the more so. Right? Now the question whether “you shall surely help with him” refers to the owner or to the animal has practical implications for whether prevention of animal suffering is Torah-level or rabbinic. But even when you make an a fortiori inference, we do not derive punishments from legal logic and we do not derive warnings from legal logic. Right, right, but the obligation is Torah-level. Meaning, there are limitations in terms of punishment, but it is a different category. There are laws that were received and appear in Scripture; some expositions produce things like that. Right. The status of things that emerge from expositions—according to Maimonides, according to all the medieval authorities regarding an a fortiori inference, and according to Maimonides in general, something that emerges from exposition is not punishable by lashes. According to the other medieval authorities, what emerges from an a fortiori inference is not punished by lashes. As for the other interpretive principles, according to the other medieval authorities, yes, you even can get lashes. Meaning, if you have derived it, then it is Torah-level in every respect.

So what is the actual definition? What is the litmus test distinguishing Torah-level law from rabbinic law? If it isn’t chronology, then what is it? Here one has to understand that when the sages act—when Maimonides here lists their authorities, the list of areas in which they have authority—Maimonides is really referring to two categories, or two fields of activity of the sages: interpretation and legislation. Meaning, when the sages engage in interpretation, they take the Torah and interpret it, whether through the thirteen interpretive principles or through other interpretive tools, and derive from it various laws. That is in their role as interpreters, and for that they have authority, as Maimonides writes. Meaning, the interpretation of the supreme court is binding. This is authority to interpret. The sages also legislate. Legislation is not interpretation. The sages make decrees or enactments, like the sages who established reading the Scroll of Esther on Purim or lighting Hanukkah candles. Right—that is not interpretation of a verse. They did not study a verse and derive from it the law that one must light Hanukkah candles or read the Scroll of Esther on Purim. Rather, they established an enactment, legislated a new law. They did not derive this law from interpretation of Scripture. So that is legislative authority. And Maimonides says: that too falls under “do not deviate.” Meaning, the sages can interpret and they can legislate, and both of these types of activity fall under the authority of “do not deviate.” Meaning, in both areas the sages have authority—both over their interpretations and over their legislation—and both authorities are anchored in the same verse or verses; there is both a prohibition and a positive commandment here. When I say “do not deviate,” I currently mean both the prohibition and the positive commandment.

But are both of them Torah-level? Wait, that’s what I’m reading in Maimonides. Now when one thinks about the meaning of these things, the difference is that in interpretation the law produced is a Torah-level law; in legislation the law produced is a rabbinic law. And that actually reveals to us the root of the difference between Torah-level law and rabbinic law. The root is not chronological. The root is functional or categorical—what kind of action the sages are performing. If the sages perform an interpretive act, then the result is a Torah-level law. If the sages perform a legislative act, then the result is a rabbinic law. They established a new law, a decree, an enactment, whatever it may be, a custom, whatever—and they established a new law. This has authority because they have the right to legislate, and the result is a rabbinic law. If they interpret, then the result is a Torah-level law. And therefore it really has nothing to do with chronology. Since if Moses our teacher created a law by means of legislation—for example saying to study the laws of the festival before the festival, or to read the Torah on Sabbaths—yes, he did not derive that from the Torah, but rather established an enactment. He was the head of the Sanhedrin of that generation, or king—he was the Sanhedrin itself, indeed the head of the Sanhedrin for a certain period until he is told “Gather for yourself seventy men from the elders of Israel.” He was also king, also the Sanhedrin, also the head of the Sanhedrin—he was everything; you won’t find separation of powers there. So he basically functioned, say, as head of the Sanhedrin and established or legislated a new law. So although that was created in the time of Moses our teacher, the law created there is a rabbinic law, even though chronologically it is from the time of Moses. Why? Because how did he create that law? He created it through legislation, not through interpretation and not through transmission. Maybe I should also have said transmission. Transmission also produces Torah-level law.

Like what, for example? A law given to Moses at Sinai, for example. What? A law given to Moses at Sinai, like the square shape of the phylacteries. The square shape of the phylacteries—so this is accepted by us as a law given to Moses at Sinai. The sages only transmitted that law to us; they did not create it. The law passed from Mount Sinai through the sages to us. Such a law is a Torah-level law, because it is a law that the sages did not create; they merely transmit it to us, but the Holy One, blessed be He, created it. A rabbinic law is a law the sages create; they legislate a new law. Okay? And the verses authorize the sages both to legislate and to interpret. No, I’m asking about a law Moses legislated—what, for example? I said, for example reading the Torah on Sabbaths. Did Moses legislate that? Yes. Why? That’s what it says in the Talmud. What? That’s what it says in the Talmud. Reading the Torah on Sabbaths is an enactment of Moses our teacher. Or studying the laws of the festival thirty days before the festival—on the festival or thirty days before the festival, depending on which of those is from Moses our teacher, one can quibble a little, but never mind—studying the laws of the festival in preparation for the festival. What about legal measures? What? Legal measures are a law given to Moses at Sinai. Legal measures, interpositions, and partitions are a law given to Moses at Sinai. So it is accepted that this is a law given to Moses at Sinai, or else—as the Talmud in Sukkah discusses—the question is whether it is derived from the verses “a land of wheat and barley,” where somehow all the measures are hinted at, or whether it is a law given to Moses at Sinai. The conclusion is that it is a law given to Moses at Sinai. There he explicitly says it is just a scriptural support. What? In Sukkah. Yes, I said that—the Talmud’s conclusion. At first the Talmud brings… but there are other passages where it seems to be a real dispute. In Sukkah it is only a support text, but there are other passages where it seems to be an actual dispute.

Is there no situation where it is hard to decide whether something is interpretation or legislation? Yes, there is, of course. There are arguments among sages—even in the Talmud itself, and later among decisors—whether a given law is the product of legislation or the product of interpretation. And that will determine whether it is Torah-level or rabbinic. For example, the prevention of animal suffering that I mentioned earlier. There is a dispute among decisors: is prevention of animal suffering Torah-level or rabbinic? What is the dispute? The dispute is whether we can derive it from “you shall surely help with him”—that is usually what is brought as the source—or not. If not, then the sages established it as a new law and did not derive it from “you shall surely help with him.” Fine, then it is still binding, but it is a rabbinic law, not a Torah-level law.

There is an anecdote in this context. Bahag counts Hanukkah and Purim among the 613 commandments. What is Bahag? Baal Halakhot Gedolot, one of the Geonim. There is a dispute among the medieval authorities over who exactly he was. He was Bahag, but what was his actual name—that is the dispute. It’s like Shakespeare, who also maybe wasn’t Shakespeare. So in that world they call him Bahag, no problem. But when you try to identify him historically, then it is either Rabbi Shimon Kayyara or Rabbi Yehuda Gaon. Meaning, there is a dispute over who authored Halakhot Gedolot. In any case, the question is whether he was a Babylonian gaon or an Egyptian gaon. Kayyara means from Cairo. In any event—why did you mention animal suffering? Yes, I brought it as an example, to show that there is a dispute whether it is Torah-level or rabbinic.

The anecdote about Bahag—yes, right, I said the anecdote is not related to animal suffering. So Bahag counts Hanukkah and Purim among the 613 commandments, and Maimonides really attacks him in the first root principle. He says: What, the Torah commanded that if Greeks come and conquer you, and you fight them and defeat them, then you should light candles? Where did he find this in the Torah? Now this is a strange question from Maimonides, because clearly that is not what Bahag means. What Bahag means is that there is some Torah-level law saying that if some misfortune occurs and you are saved from it or you win a war or something like that, then establish for yourselves—but there is a Torah-level law to celebrate it or to thank the Holy One, blessed be He, for it. The sages will establish the pattern; so here they established candle lighting, there they established something else—the sages established the pattern. This is not far-fetched. Looking at the fact that Bahag counts them as two, if that were the explanation, then Hanukkah and Purim should really have been one commandment, not two. Their root is the same thing: when some deliverance happens, establish for yourself the manner in which you thank the Holy One, blessed be He. So for Hanukkah the sages established one form, for Purim they established another, but in the end it is all one commandment. But if Bahag counts them as two commandments, that really is odd. Except that Bahag does not accept these classifications. Even though it is based on one root, every implementation is, for him, another commandment.

Which means that according to Bahag there are 613 commandments—so does that mean there won’t be any more miracles? If he counts it that way? That’s an interesting question, right. Ostensibly you’re right. There won’t be any more miracles that would require a new observance? Interesting question, I hadn’t thought of it. Really an interesting question about Bahag. What? That if there are miracles—Independence Day. According to this view, say, Independence Day would also be Torah-level. Again, there is no Sanhedrin that can establish such a thing authoritatively, but had there been a Sanhedrin, then this would be Torah-level. Meaning, there is a commandment here. One could discuss whether, without a Sanhedrin, perhaps still… it doesn’t matter, however we establish it. There could be this question in Bahag—that he would say there are two types, one like Hanukkah, one like Purim or Persia, two types. And each of those types falls under one of the types. Ah, so if you succeed in defining the distinction categorically, then yes. There is indeed a fairly clear difference between them, right. Okay. But then is the specific way they celebrate also Torah-level? There is a category that Nachmanides brings regarding labor on intermediate festival days. It’s a dispute between Maimonides and Nachmanides, but in simple terms the prohibition on intermediate festival days is Torah-level. On the other hand, clearly the sages determined it; they did not derive it from a verse. To write, yes; but to sort is permitted on intermediate festival days. Meaning, they selected certain categories from the primary labors of Sabbath and festival and said those are prohibited also on intermediate festival days. The question is why, on what basis? Ostensibly this is a rabbinic law—the sages decided to extend it to intermediate festival days. But I think it is said in the view of either Nachmanides or Maimonides—I don’t remember, there is a dispute here—that one of them says “Scripture handed it over to the sages.” Meaning, Scripture says that on intermediate festival days you should determine their character for yourselves, and therefore it is Torah law. But Scripture gives the authority to determine that character to the sages according to what they see fit. Once they determine it, that determination defines what Scripture requires of me. But that is not the same thing as “do not deviate,” as though “listen to the sages,” and then no—because if they had told me “do not deviate,” then I would have to obey them, but it would still be rabbinic law. No—the Torah gives the sages authority to interpret the content or determine the content of what the Torah itself commands; that is Torah law. The Torah itself says: you must observe intermediate festival days. How? The sages will determine that. Once the sages have determined it, that is the content of the verse. Now it is Torah law; a doubt about it will be ruled stringently. Because the Torah said that one must do it; it merely left to them the precise definition. Understood?

So the dispute about Hanukkah and Purim, for example, is exactly a dispute about this question. Bahag claims that Hanukkah and Purim are the result of interpretation, and therefore they are Torah law. Basically, this is a Torah commandment that the sages once again shaped—I don’t know if “interpretation” is exactly the right word, but shaped it. And Maimonides says no, this is a renewed rabbinic enactment, the result of legislation, and therefore it is only rabbinic law. Okay? So the difference between Torah law and rabbinic law really lies in the question whether the sages who established it established it in their role as legislators or in their role as interpreters. If it is in their role as legislators, it is rabbinic law; if it is in their role as interpreters, it is Torah law. And Maimonides’ view is that the authority both to do this and to do that is rooted in the verse “do not deviate.”

Fine, that’s the basic picture. In Maimonides there is also “words of the prophets”—where… how do you define that? Everything enters here. Everything enters here, because the question is whether you view the prophets as legislators or… customs, among customs, yes. Among customs, yes, or in temporarily uprooting a law, which a prophet is also allowed to do. All things that have authority—yes, they are binding. I think he details here the various kinds of customs, and one of them is customs of the prophets. I’m trying to find it here, but in the meantime it seems from Maimonides that there are several levels: Torah law, words of the prophets… No, the classification between rabbinic and Torah-level in Maimonides is a major puzzle; this whole book deals with it. I don’t see it here, but it appears somewhere; I need to remember where.

Okay, in any case, what Dror asked about the 613—what obligates that number? Big question. The Talmud at the end of tractate Makkot, on page 23, says there: 613 commandments were said to Moses at Sinai, as it says, “Moses commanded us the Torah.” Fine, that does not settle it, because if you say it is a matter of interpretation, then what… Interpretation, not interpretation… No, what he is saying is that it is from the Torah, it’s a matter of interpretation. You are saying that it is Torah-level commandments if it comes from interpretation. Interpretation can also be renewed in our own day. Yes, obviously. But that means it does not force the number 613. No—up to then they found 613. This is an expansion of the same question Dror asked before, an expansion of that same question. Bahag perhaps appears paradoxical. No—Bahag has a list of 613 commandments. Bahag claims there are 613 commandments, and from Bahag it does not seem that you can continue and have more. There is Nachmanides at the beginning of his glosses to the first root principle, and also the Tashbetz and, I think, Gersonides in a few places—it appears in Tashbetz. Nachmanides wonders whether this Talmudic statement about 613 commandments is a conclusive statement, whether it is de facto or de jure. Meaning, the question is whether Rabbi Simlai, who said this statement, simply gathered all the commandments according to his count, and it just came out to 613. Wait, then who made that distinction? Just a second. And then what follows is that someone else, who could disagree with him about one commandment or another, would reach a different number. There is no binding count in that sense; it merely summarizes everything Rabbi Simlai found. Or alternatively—and Nachmanides hesitates between these two possibilities—it may be that Rabbi Simlai is transmitting an a priori tradition, which says there are 613 commandments. Now one can see which commandments these are, remove one and insert another, there are disputes about that, but in total there must be 613.

By the straightforward meaning of the Talmud, it is quite clear that the second possibility is correct, because otherwise what are you learning from the verse “Moses commanded us the Torah”? After all, that is how they derive it. And “I am the Lord” and “You shall have no other gods” were heard directly from the Almighty. So “Moses commanded us the Torah”—the word “Torah” is 611 in numerical value, plus the two commandments “I am the Lord” and “You shall have no other gods,” which were heard directly from the Almighty, gives 613. So it seems that the number 613 is derived from a verse in the Torah. It is not that by chance he came out with 613 because he gathered all the commandments he counted and that was the total. If so, you could say this is just some kind of scriptural support he made there and he didn’t really mean that numerical value as a source. Fine, because Nachmanides does hesitate. And Nachmanides does not bring this proof and say, fine, then clearly not. So what is Nachmanides’ conclusion? “And we have received from our rabbis” that they all thought it was a binding number. Therefore, although I hesitate about it, says Nachmanides, apparently they had some tradition in their hands. The proof is that every enumerator of the commandments—Bahag, Semag, Sefer HaChinukh, and Maimonides—all count 613. Apparently there was some tradition that this really is a binding number, and not only from the Talmud itself could one perhaps also infer otherwise, he says. But apparently there was such a tradition, and therefore he bends himself to it. Tashbetz, for example, says in conclusion that it is not a binding number.

Who established the distinction between interpretation and legislation? Who established this—just now you said this is Torah-level and this is rabbinic. What? This is Torah-level and this is rabbinic. Yes, but who determined that interpretation is Torah-level and legislation is rabbinic? You already see in the Talmud itself a distinction between Torah-level and rabbinic. You’re asking in the end why this is the criterion. So I’m saying: look in the Talmudic passages and tell me what the criterion is. I’m describing it now, but as far as I’m concerned, this is what the Talmud says—because otherwise what would the criterion be? You came to this conclusion? The wording is mine, but it is clear that this wording describes what the Talmud thought; it is just my formulation. Because if it were not that, then by process of elimination what would it be? Chronology? Only what was given at Sinai? I showed you that this is not correct from the Talmud itself. No, if someone were to say that, everyone would immediately pounce on him and say: listen, there could be other interpretations. Fine, why pounce? Maimonides says that, and says there can be other interpretations, and no one pounces on him. But Maimonides emphasizes that there are 613 commandments. Of course. But there can still be other interpretations and arguments and changes—Chapter 2, as I mentioned. There are arguments and different interpretations. When he himself counts the 613 commandments, after all, he goes against Bahag’s count. The whole book of roots is devoted to explaining why he counts differently from the accepted enumerations, which usually followed Bahag. So that means that Maimonides’ 613 commandments and Bahag’s 613 commandments are different. Yes, but it’s still 613. Fine, it is 613, but there is a difference in interpretation. A commandment that Bahag sees as a Torah-level commandment, Maimonides says is not Torah-level, and vice versa. So that means there is a dispute in interpretation, but everyone agrees that the framework has to bring us to 613 in total. That is indeed what I said before. And within that, there is still room for many disputes, and there were many disputes.

Does this number 613 appear in other places in the Talmud? In aggadic expositions like that, yes. Corresponding to 248 limbs and 365 sinews and 365 days of the year, and there are all kinds of midrashim. Maimonides even brings some of those midrashim in the first root principle. Yes, so these are aggadic midrashim. Meaning, one need not take them too far. Rabbi Simlai too, incidentally, is aggadic midrash. So that is why I say that the medieval authorities wonder about this. That is fine, because in the end it is aggadic midrash, and it is not certain that he meant to transmit some binding halakhic tradition.

Good. So the distinction is between legislation and interpretation: this is Torah-level, this is rabbinic. And Maimonides says the authority both to legislate and to interpret is grounded in “do not deviate.” Nachmanides disagrees with Maimonides, and Nachmanides argues that it is impossible that the authority learned from “do not deviate” is also authority to legislate. It is authority to interpret. Of course I’m already using the terminology I’ve placed on the table. Nachmanides and Maimonides do not use these terms of legislating and interpreting; I am translating. They speak in terms of Torah-level and rabbinic. I am simply translating that into legislation and interpretation. Nachmanides says no: the authority they have, learned from the verses “do not deviate,” is only to interpret and not to legislate, to interpret and expound through the interpretive principles of the Torah, and not to legislate. Why? Nachmanides argues that if authority to legislate were learned from “do not deviate,” then everything the sages legislated would in effect receive the status of Torah law. Because if, say, the sages legislated not to eat poultry with milk—some decree, a fence, not to eat poultry with milk so you won’t come to eat meat with milk—and now someone ate poultry with milk, then according to Maimonides, ostensibly, he violated “do not deviate,” because the authority to legislate, although the result is rabbinic, is anchored in the verse “do not deviate.” And if so, then eating that poultry with milk is a violation of a Torah prohibition—of “do not deviate,” yes, in the first instance. So he has violated Torah law. Since he has violated Torah law, a Torah-level doubt should be ruled stringently. But we know that a rabbinic-level doubt is ruled leniently, says Nachmanides. Therefore it cannot be that “do not deviate” applies also to legislation, to new laws legislated by the sages.

Then of course the question arises: according to Nachmanides, where does the authority to legislate come from? He does not write that. He says “do not deviate” is some kind of scriptural support, but he does not say where the real authority to legislate comes from. We’ll get to that later. So there is a dispute over whether the sages have authority by virtue of “do not deviate”—whether the authority from “do not deviate” is both to legislate and to interpret. That is Maimonides’ view. Nachmanides’ view is that it is only authority to interpret, not to legislate. Okay? What the dispute is and what the source is according to each—we’ll get to that later. But before that I want to step back for a moment to the concept of authority. These are the broad concepts of authority in Torah law, without yet entering the heart of the matter. The dispute between Maimonides and Nachmanides is the infrastructure for the concepts of authority in Jewish law. But what is authority? What is this concept, authority?

Here one can distinguish between two main kinds of authority. I don’t know if it is correct to call both of them authority, but people speak of two such types. In the first context we are dealing with formal authority. Formal authority is like the authority of the Knesset, for example. The Knesset is the supreme legislative body in the legal system, and what they determine is binding by virtue of their being the authorized institution. Okay? Of course this gives us no guarantee that they are not mistaken—and maybe the opposite—but their authority does not depend on whether they are mistaken or not. This is formal authority. Meaning, by virtue of the fact that they determined it, it is binding. It does not matter right now whether the law is wrong or harmful or whatever. If it is blatantly illegal, that is already a different set of issues; that takes us to the Nuremberg trials. But in principle, it is binding.

There is another concept that also gets brought into the issue of authority, and I say that the term authority there is being used in a different sense. I’ll use it, but let’s call it substantive authority. That would be like the authority of a professional. If I go to a doctor and the doctor prescribes a medication, and I do not understand medicine and I trust him that he probably understands what he is saying, then I do what he told me. So he has authority. But what does it mean that he has authority? He has authority because he understands, because he is not mistaken. In contrast to formal authority, which does not depend on your professional understanding, your wisdom, or your being free of error, but rather on your institutional affiliation, your role. That is why you have authority. So similarly there can be a Sanhedrin, or whatever, with formal officeholders. So with the first kind of authority you are obligated to obey. I said that is why I am not entirely comfortable even calling the second thing authority at all. Substantive authority is authority that of course arises from my assessment that you are not mistaken. Therefore I listen to you—not because of your position. It is not because you were licensed as a doctor that therefore you have authority. Your medical license is only a practical consequence for you, not for me. It means you cannot be sued for prescribing medication to me. In other words, your medical license protects you against the law. It has nothing to do with me; it does not impose any obligation on me. Meaning, I can decide whether to obey you or not obey you. It’s just that anyone with eyes in his head, naturally, if the doctor tells him something and he doesn’t understand, he will obey, he will do what the doctor says.

There is also something in the middle, like obeying one’s father. On the one hand that is not official authority. On the other hand it’s not like a doctor. Why is it not official authority? There is honoring one’s father. No, no, I wasn’t speaking about the commandment. Let’s say in a secular context—if there is no commandment of honoring one’s father, then some kind of moral authority. Yes. Right. But I think that is entirely of the first type. The first type? But it’s not obligatory, no? It isn’t obligatory, but the type of authority is of the first type. Meaning, the obligation to obey one’s father is not because he is more right than I am, but because he is my father. Correct. But… so in terms of this distinction it belongs to the first type. Same as legal authority. But one can make another distinction, because in the first type there is no moral element at all, only a bureaucratic one. Right, right—the context is different. This is a moral context and that is a legal context. But the type of authority is formal authority, not substantive authority. In the distinction between formal and substantive authority, I think it belongs to the first type. And substantive authority, naturally, is only within a certain domain. Right. Again, you’re right, but formal authority might extend over all domains, like a king. It could, or it might not. In principle, if there were someone who was an expert in all fields, he would have substantive authority in all fields. Usually that doesn’t happen, but fine. In principle that is not essential; it could be, but yes, you’re right that usually it doesn’t happen—why should someone be an expert in everything? Though in principle it could. Then too it would be substantive across the board, but only if he really were an expert in everything.

Now, as Shmuel noted earlier, why am I uncomfortable with the use of the term authority in the second context? Because authority means you have to obey and you are called to account if you do not obey. Again, called to account legally, morally, I don’t care—but there is a problem in not obeying. Now, there is no problem at all in my not obeying a doctor. Maybe it is foolish, but there is no problem in it. No one can or should come to me with complaints if I decide not to obey the doctor. The doctor can—let’s say I want some medication and he won’t give it to me. Fine, but he is not coming to me with complaints. That is his right. He says, with you I’m not dealing; if you don’t listen to me, fine, do what you want. But he has no complaint against me; I have the right not to listen to him. In hospitals there are experts, and it’s terribly hard not to listen to a doctor, because then really, as a patient, you get treated differently if you don’t. It doesn’t pay; it’s not worth it. No doctor can come and make a claim against you: why didn’t you listen to me? I said I didn’t want to listen to you—what will he do, punish me? Fine, fine. He doesn’t punish you, but he doesn’t give you service. Fine, so go to another doctor. That is his decision about himself, not about me, whether he continues giving service if I don’t listen.

Incidentally, I think this has improved. Even in my not-so-advanced age, I remember that thirty years ago the situation was completely different. You really couldn’t—it really was authority, yes. A second opinion was not possible. In any event, authority—I don’t quite agree with you, because substantive authority, according to how you defined it, is someone who is an expert. Fine? And he knows. Then you bring all kinds of cases—a quack doctor, or someone who doesn’t know. Right, but if it is a good doctor and he knows, or a good engineer, or a good lawyer, fine, and you came to him, then he has authority over you. He has no authority whatsoever. I came to him and I ignore him—so what? But you have no legitimacy to deviate. He tells you something and you do something else—you have no legitimacy. Society will look at that as… he has authority. I have the right to do whatever I want. What does authority mean? Authority means that you are required to listen to him, or morally required, or legally required, or… Morally required. He won’t give a medical certificate, so you have no legitimacy. Then you are required—you can’t simply not go to work. No, that is contractual, not authority. It is contractual. Between me and my employer there is a contract that says if I’m absent from work I have to present him with a doctor’s certificate. So if I was absent from work despite not having a doctor’s certificate, it’s not that I did something morally wrong against the doctor. The doctor has no authority. Rather, I violated the contract. There is a contract between me and the employer; he wants a doctor’s certificate in order to recognize my illness. Fine? That is an agreement between me and him.

I think you have no legitimacy to deviate from what they tell you. I don’t see a problem of legitimacy. I do what I want. Nobody tells me what to do. What do you mean? What will they do to me if I say to the doctor, I’m not listening to you? No, it depends on the case, fine. If it gives approval—that’s what I said before—you take a danger upon yourself. But if you built a house and didn’t listen to what the engineer said, then you violated the law. Then you violated the law, again. The engineer—you violated the law. It’s not because he is an expert. It is formal authority—you violated the law. Fine. Actually in the recent disaster—Nahal Tzafit, something like that—they are now suing him because he didn’t listen to the professional authority. Yes, but again, that is by virtue of the law, not by virtue of professional authority. The law says that if you take kids on a trip and didn’t listen—let’s say if I had gone there by myself without the other kids, fine, and killed myself, no one could come to me with complaints. There was discussion of that. What? There was some trip like that; there was discussion of it. Fine—morally, not legally. What happened in that school trip where they got swept away in the flash flood? Well. So that is what Oren said: the guide there didn’t listen to the meteorologist, or whoever gave the forecast, and then they sued him for negligence. But again I’m saying, they sued him because of the legal rule that if you take people on a trip and don’t listen to the meteorologist regarding others under your responsibility, then you are culpable for what happened to them—not for disobeying the meteorologist. Because they did not sue him for the meteorologist’s honor. Meaning, I don’t have to obey the meteorologist. Rather, they impose responsibility on me for those under me if I was negligent and did not act as the meteorologist advised, just like the engineer example before. The claim is by virtue of the law, not by virtue of substantive authority. Not because he is an expert; rather, the law delegated him authority because he is an expert, and the legal claim against me is not because of his expertise but because of the law. The law is what says I have to obey, or that I am responsible if I don’t obey.

So then we have two concepts of authority. And here, in the Torah-halakhic context, there is room to ask when we speak about authority—whether to interpret or to legislate—I’m now speaking about these two kinds of authority: what kind of authority is involved here? Formal authority or substantive authority? It seems to me that quite clearly this is formal authority. This is formal authority, meaning when you do not obey the Sanhedrin, it is simply because they are the Sanhedrin and the Torah commanded—law said—that what the Sanhedrin says is binding. Therefore, people come to you with complaints not because you did something that is intrinsically wrong, say, for example I ate poultry with milk. Not because eating poultry with milk is intrinsically inappropriate—not necessarily—but because you had to obey them even if the act itself is acceptable. The very fact that they punish means it is formal authority. Yes, right, this is formal authority—not only formal authority. So when they come, the very fact that they come to me with complaints, even without the punishment—you violated a prohibition. What does it mean to violate a prohibition? It means that basically you violated formal authority, not substantive authority. With substantive authority they would say, you were foolish; you didn’t listen to someone who understands the matter, but nobody punishes me, nobody comes to me with complaints. That is something else.

Therefore, in the legal context, in the halakhic context, when we talk about authority we are really talking about formal authority. Okay? In both the legal context and the halakhic context, both the authority to legislate and the authority to interpret. Now what happens is that people ask themselves, fine, but why was formal authority given to the Sanhedrin? Like in the analogy: why was formal authority given to the meteorologist in the context of my responsibility for those under my charge? Or to the doctor, or to the engineer, or whoever. Why was authority given to the legislator? Because he understands it. Meaning, the formal authority—true, what stands at the front vis-à-vis the citizen is the formal authority of the Sanhedrin or the Knesset or whoever—but what stands behind that, the underlying rationale, the logical infrastructure behind formal authority, is that he understands it. True, that is not enough just to say he understands it; but if one sees someone who understands, then it makes sense to give him formal authority. So the legislator chooses an engineer who has passed certification and understands this, and says: okay, he will be authorized to approve buildings, or approve trips, or approve…

The formal authority of the Knesset and legislation is not because they are doing their best to lead the whole thing. Right. Not because it is conditional upon their doing so. Their authority is because they are the Knesset. The Knesset is actually a good example where we are talking about formal authority not based on substantive authority. That gang—I don’t think most of us think they are wiser than we are in any way. But he succeeded in getting elected; that also means something. He succeeded in getting elected. Oh really? There is certification for being elected. Okay. Nice. That’s the best. That’s even better than other things. Someone wise is not enough. Right, on the contrary, that would be bad. If he’s wise then certainly he won’t be… Exactly. So in order to preserve the character. Someone righteous is also no good. So yes, that’s exactly best. There is a party that gets elected—they’re not elected by themselves. No, the question is who the party is, who chooses it, and so on. It doesn’t matter, but in the end the public. Yes. He is also an expert at dealing with the party leader who will choose him. That too is “getting elected.” And we’ve defined him well. Fine.

Anyway, for our purposes, that’s why many people tend to think, or identify, these two kinds of authority with one another. Why? Because there really is a logic saying that if authority is given to someone, why choose him and not another? Probably because he has substantive authority, because he understands it, he is an expert in that field—like structural engineering or meteorology or things of that sort. But the Knesset really is a good example of authority that is not like that. Why am I saying all this? Because when we come to the authority of the sages, there too the same dilemma arises. We were educated on the idea that the authority of the sages is because they were fiery angels on high, they do not make mistakes, they are such great sages that they are prophets, with divine inspiration, or all kinds of things like that. And therefore there can be no mistake in the Talmud, for example, because otherwise how could the Talmud have authority? I haven’t yet gotten to the Talmud, but the assumption is that the Talmud too has authority. So then, apparently, the sages—or whatever the authorities sitting in the Sanhedrin were—had some sort of divine inspiration. And there are many superlatives and many descriptions about what divine inspiration they had and how they do not err, and even today this extends to the “Torah view” of contemporary rabbis, for those who go as far as our own day. One can hear this kind of discourse: the leader of the generation does not err, and therefore everyone has to obey him.

Incidentally, regarding the leader of the generation this claim is relevant. I don’t know if it is true, but it is relevant, because he has no formal authority. So all you can claim is simply that he does not err, and therefore it is worthwhile to listen to him because he has substantive authority. But regarding the Sanhedrin, there is no need to reach that. The Sanhedrin has formal authority even if it does err. Okay, now of course… Or that doesn’t mean it errs. You can still argue that you do not need the expertise of the Sanhedrin in order for it to have authority—but there is expertise. Meaning, it also did not err, or the Talmud also did not err. Therefore people often say that everyone mentioned in the Talmud had divine inspiration and insights of that sort. Well, you can already see from my body language what I think of these statements. Right. So I do not agree with that.

The Torah itself speaks about a bull-offering for an erroneous ruling of the community, meaning if the supreme court errs, then it brings an offering. Meaning, clearly the supreme court can err. The interesting question is how such an error is discovered, or how one determines that such an error occurred. Ostensibly only the court itself can determine that it itself erred and thus obligate itself to bring the offering for an erroneous communal ruling. But the assumption is that sages can make mistakes. The Talmud in several places records mistakes of sages. Meaning, in tractate Shevuot the Talmud brings Rabbi Ami and Rabbi Asi, the amoraim from the Land of Israel; each one swore as to what Rabbi Yochanan had said. Opposite. One said Rabbi Yochanan said such-and-such, and swore. The other said Rabbi Yochanan said the opposite, and he too swore. Okay? Now, leaving aside the question of the content, you could say “these and those are both the words of the living God”—we’ve already become used to that. One can say a statement and its opposite, and both are the words of the living God. Fine? But they swore about what he said. That is already a matter of fact. Fine? As to the fact, either he said this or he said that. These are two opposites. A superposition. What? Yes. Maybe Schrödinger’s cat and Rabbi Yochanan. Yes. In any event, not Laurel and Yanny. What? Not Laurel and Hardy? No, Laurel and Yanny. What is that? It’s an audio clip that can be heard one way or another depending on the frequency. If you hear high frequencies you hear Laurel; if low frequencies, Yanny. It’s mixed that way. And you can hear it; the question is simply where you put your filters. Yes. Fine. Good.

So he said both things? He said both things? What? It cannot be that he said both things—a statement and its opposite. If he said a statement and its opposite, then he said nothing. But each of them swore. Vocally he said both things. Cognitively, if he said two contradictory things then he said nothing. Fine. In any event, at different frequencies he said it. This one heard it at a high frequency, that one at a low frequency.

The point is that education somehow—I don’t know, this is just my impression—education is such that we are taught that there is also substantive authority in the authoritative halakhic sources: the Talmud or the Sanhedrin. Why? Because somehow the feeling is that you need to justify why there is formal authority. But in my opinion this is a rather childish conception. The feeling is as though if they are not right, why should I listen to them? What do you mean? Just like in the Knesset—otherwise there would be chaos. You need to ensure that there is some orderly framework, and therefore it may well be that although they were human beings, and human beings can always make mistakes, and there is no reason to assume they did not err—on the contrary, it seems quite clear to me that they did err, or at least in some cases. Not always can I point my finger and say where, but statistically if they made a thousand statements, I assume some of them were incorrect, because a human being is not perfect. But you don’t need to go there. A doctor too can make mistakes, and still his authority is substantive and can also establish formal authority if you certify him. Yes, right. So yes, even if you are correct, even if you are an expert, that doesn’t mean… after all, the Sanhedrin and the Talmud were experts in Jewish law; obviously that is true. But expertise is nice; even an expert can err. It is no guarantee that you do not make mistakes. Yes, right. Exactly like a doctor.

So yes, in all kinds of arguments I have, people always bring “it says in the Talmud” as though that were a knockout proof. That’s what I mean. The question is: what do they mean? A knockout proof that this is the truth, or a knockout proof that this is what has to be done? That is exactly the difference. The second type I too am willing to say: this is what the Talmud says, what can I do? There is formal authority. A knockout proof of the truth—that I do not agree with. Exactly. Yehudit is pious; I can’t get into an argument between you here. Me, pious? No, my heretic. Heaven preserve us, that I have ended up in a place where someone like you thinks as you do. There are heretics here too. Fine.

In any event, the claim is, first, that one does not need to appeal to substantive authority in order to recognize the authority of the sages; and second, I also do not know how much substantive authority there is—not again in the sense that they were experts in Jewish law, but substantive authority in the sense that they are more than any other expert. The one who sealed the Talmud, or someone who was not on the Sanhedrin. Rabbi Akiva was not on the Sanhedrin; he was the son of converts. So what does that say—that when he went abroad he would not act according to his own view in all the Land of Israel? Fine, what does it say that he was not on the Sanhedrin? Does it mean he erred more than the Sanhedrin? Some of his students sat on the Sanhedrin. When he went abroad he intercalated the year by himself without any Sanhedrin because he was the acknowledged leader of the generation. He intercalated years abroad, which you are not supposed to do even with a Sanhedrin, and he did it without being on the Sanhedrin. That’s what the Talmud in tractate Sanhedrin says. So what does that mean? Where was he, in Canada? Where was he? I don’t know. What? I have no idea. What, it says abroad? Yes. So the claim is that the fact that you serve on the Sanhedrin does not mean you are the greatest sage, and does not mean you are more right than someone else, or even more right than me. It does mean you have authority because it says “do not deviate.” And that is the point: the authority being discussed is formal authority. Formal authority does not require the assumption that you will not err.

Okay, let me jump ahead a bit. One could ask about Rabbi Firer. He was a great expert in medicine, but still no one gave him formal authority. He doesn’t have the paperwork. He’s an expert in doctors. No, no, he is also an expert in medicine, truly an expert in medicine. Over the years he acquired that too. No, he is a serious expert. I know from different doctors who say he really is a serious medical expert. One can learn anything alone; there is no magic stamp. The question is how much time you invest, how talented you are—fine, anything can be learned independently. And this only shows that you need a combination of two things: that there be the substance, and also that there be the paperwork you mentioned. And only the combination of the two gives you formal authority. No—formal authority is given only by the paperwork. Only the paperwork gives you formal authority. It’s just that they won’t give paperwork to someone who is not an expert. Fine, but that is a matter of common sense on the part of the legislator, or the authority granting it.

I’ll bring just one example, though this takes us a bit forward. Maimonides, at the beginning of Chapter 2, when he speaks about changes in Jewish law, distinguishes between Torah-level laws and rabbinic laws. He says that in Torah-level law, you need a court in order to change the law; any court in any generation can change a Torah-level law established by a previous court. With rabbinic law, the later court that wants to change it must be greater in wisdom and number. Okay? That’s what he writes. What? Yes. So one asks: rabbinic laws have stricter requirements for changing them than Torah-level laws? On this the Kesef Mishneh asks: if so, why don’t amoraim disagree with tannaim? For if a later court can disagree with an earlier court and change its determinations, then why are the rules of the game in the Talmud—“rules of the game” already gives away the answer—such that once there is a Mishnah against you or a baraita against you and you are an amora, your opinion is rejected? Meaning, that’s a knockout. Okay? Why? Fine, there is such a Mishnah and I disagree with it. After all, a later court can disagree with an earlier court. You’ll say this is not a court? Fine, most tannaim were not sitting on the Sanhedrin either. So neither were the amoraim. Meaning, they were not. So he says: one can say that on the day the Mishnah was sealed, they established and accepted that later generations would not disagree with earlier ones. And they did the same at the sealing of the Talmud: from the day it was sealed, no person was given permission to disagree with it. Okay?

What does the Kesef Mishneh say? He does not say that the tannaim were fiery angels on high and never made mistakes, and therefore one may not disagree with them, or that the early authorities do not disagree with the amoraim in the Talmud for that reason. Rather, it is because this is formal authority. The Talmud was sealed, we accepted its authority. I’m not entering yet into the question of what that acceptance means, but it has some sort of formal authority. And therefore we cannot disagree with it. Not because they do not err—because they are certainly right, and loftier sages, and all kinds of things like that—but simply because they have formal authority; we accepted their authority, and that’s all, one cannot disagree with them. Even though it is entirely possible that they are mistaken; there is no obstacle to saying that.

Now I’ll add two more remarks. On the other hand, while one may not openly disagree, one may make far-reaching reinterpretations. Correct. So there are perhaps cynics who would say that this is simply an elegant way of disagreeing. I am not inclined to agree with that, by the way. I once had an argument about this with Menachem in various articles. But fine, maybe we’ll get there.

In any case, two remarks. The first is that the authority—the formal authority of “do not deviate” that we discussed—is authority given only to the supreme court. “If a matter be hidden from you, between blood and blood, between claim and claim, between plague and plague, matters of dispute in your gates, then you shall arise and go up to the place…” which God chooses—that is the Chamber of Hewn Stone—or “the elders in your gates” in biblical language—and they have the authority of “do not deviate.” The exception here is Sefer HaChinukh, which in the commandment of “do not deviate” says: and the same applies to every court in every generation. Meaning, there is formal authority of “do not deviate” for every court in every generation, and this seems to include even courts without ordination, even courts in our own day. Okay? This is a very exceptional view. It does not sound that way from the Torah, the Talmud, or anywhere. Okay? But that is what Sefer HaChinukh writes, and one needs to know that it is quite clear that almost everyone disagrees with him on this, even though you will hardly find explicit statements, simply because it was so obvious that nobody even bothered to say it. What? But isn’t that how we practice? If some court… No, not at all. Today’s courts do not have the authority of “do not deviate.” There are several councils of Torah sages that everyone can… No, again, the question is where their de facto authority comes from. Meaning, if a decisor writes something about the laws of Sabbath or a council of sages makes some decision and people obey, then where does that authority come from? There is room for discussion. Because the particular public that obeys them accepted their authority—but that does not come from “do not deviate.” Meaning, the claim that when you do not listen to them you have violated “do not deviate” is absurd; it has no basis, even though you can hear it from various people. So from their perspective it’s “do not deviate”? What? From the perspective of that group? From the perspective of that group that obeys? Not necessarily. No, because “do not deviate” is authority that the Holy One, blessed be He, gave. Here we are talking about authority that we gave. That is not the same thing.

How are the Sanhedrin and ordination of judges established? How was ordination created? It is from above; top-down, not bottom-up. Meaning, it comes from above. Moses received ordination, as it were, from the Holy One, blessed be He. That is how Maimonides describes it in the laws of the Sanhedrin. He ordained Joshua, and so on, and each court ordains additional judges and also determines who will be on the Sanhedrin. There are no democratic elections; it determines this. How is it established? From above, a chain beginning with the Holy One, blessed be He, and the ordained person can continue ordaining further. One who is not ordained cannot ordain. Therefore when ordination ceased, that was it, the chain got stuck. Stuck, and stuck indeed—both senses. Therefore, in simple terms, “do not deviate” speaks of authority that comes from above. The Holy One, blessed be He, who gave authority to these sages also says one may not deviate from their words. But if we accept… So today it is impossible to establish a Sanhedrin if it has to come from above? Correct. What? Correct. Correct. There is so much one could say here—there are all kinds of things… and things for which the rabbis have no courage. What do you mean? No courage to establish a Sanhedrin? They cannot establish a Sanhedrin. What do you mean? There is a dispute. Fine, but they certainly cannot establish a Sanhedrin if there is no consensus. And even if there is consensus, there is a big dispute, and that dispute itself already suggests that apparently one cannot establish a Sanhedrin. Fine. Because Maimonides himself requires broad agreement in order to establish the Sanhedrin. The ordination controversy—we may speak about it. So you’re saying the situation is hopeless. No, the situation is not hopeless. Will there be no halakhic decisor in Israel? Wait—on that argument Maimonides stands with his great innovation that it is possible to renew ordination from below. But in the straightforward sense, from below there is no ordination. From below there is authority. If I accepted you upon myself, then I can become obligated—it is like a vow, say, or something like that—but it is not derived from “do not deviate”; rather, I gave you authority, so I need to obey. But that is not derived from “do not deviate.” In simple terms, “do not deviate” refers to authority granted to one who receives his authority from above. That is the backing that gives meaning to his authority. If I accepted you, I don’t need backing. I accepted you, therefore I need to listen to you, because that is what we agreed between us.

So I’m not obligated to the rabbinate? No, certainly not to the rabbinate. You’re asking me? You’ve opened an open door here. All right, then not the rabbinate—take the rabbi you most esteem. I’m not obligated to him? In what sense? What? What? What? Fine. No, at most perhaps yes. There are various aspects. In short, “do not deviate” does not apply today, right? It does not apply. What? Apart from Sefer HaChinukh’s view, it does not apply today, and it applied only to the Sanhedrin, and as the Kesef Mishneh writes here, and as is accepted among all the decisors. Also to the Talmud, even though in the time of the Talmud there was no Sanhedrin. They were not ordained, of course, in Babylonia. But the public accepted it. Why? The approach is like what the Kesef Mishneh says. I think this is the accepted approach, beyond preaching, I mean. The real conception is simply that we accepted upon ourselves the authority of the Talmud, and therefore it is like appointing a rabbi over us. A community appoints a rabbi over itself, and then the rabbi determines what goes in that community. Fine. Likewise, the Jewish people accepted the Talmud with its sages as their rabbi—whatever exactly that means. Okay? And therefore it is binding upon them.

But the question whether there is “do not deviate” here or not is a very interesting halakhic question. There are those who want to say that since all the Jewish people accepted it upon themselves, it becomes just like a Sanhedrin. And then that implicitly assumes Maimonides’ innovation. Maimonides’ innovation says that once the whole public agrees, one can renew ordination and “do not deviate” awakens. But there are major disputes about this. It is not simple. There is an article by Rabbi Shlomo Fisher on this in Beit Yishai, in the homilies section, part two, section 15. He discusses this issue—that the acceptance of the public is something that can create authority, and not only something from above. This is really related to Maimonides’ innovation.

But one must know that authority in a basic sense is given only to the Sanhedrin, which is of course composed only of those who are ordained in a top-down chain, meaning from above to below. Okay? Any other authority—certainly the Chief Rabbinate, if you even mention it in this context, or even serious rabbis—has no authority. Meaning, no formal authority. Rather, one can now speak of substantive authority. Because he is a great Torah scholar, the greatest decisor, the elder of the kabbalists—whatever newspaper title you give him. Today there are all kinds of journalistic appointments like that: elder of the kabbalists, greatest of the decisors. The journalists are in charge of the halakhic and spiritual hierarchy. So if you truly believe that, then he has authority in the substantive sense. Meaning, he is probably right, so it is worthwhile listening to him. Incidentally, I do not belittle that. Obviously, a great Torah scholar has some kind of substantive authority, and one should think very carefully before deciding whether to listen to him or not, just as with a doctor. But that is still not a formal claim. There is no formal claim here. It is a substantive claim, a substantive argument.

Okay? Of course in this substantive argument there is a normative dimension. Why? Because unlike a doctor, where if I do not listen to him then at most I will die or get sick or fail to recover, in this context the Holy One, blessed be He, will say to me: listen, why didn’t you listen to that sage? Apparently it wasn’t important enough to you to get the law right. Then He can come to me with complaints even in the halakhic or moral sense, because he is right. But that is because he is right, not because he has formal authority. It is just that his being right also projects into there being a normative claim against me, because it is not proper: why don’t you listen to him? It is likely that he is speaking more correctly than you are. Why don’t you listen to him? Okay?

So basically today, at most, what exists is substantive authority. Formal authority ended with ordination, and at the very latest with the Talmud. Since then, certainly afterward, there is no formal authority. All that exists is substantive authority that we accepted upon ourselves. Yes—or someone who is wise in his own right, or some community, some group that decides to accept upon itself the authority of a rabbi or something like that. Fine, then a certain kind of formal authority is created—but not by virtue of “do not deviate.” Fine.