Reasons and Rationales for the Commandments, Lesson 12

[Rabbi Michael Abraham] Who judges greatness? That highest possible authority always judges itself—that’s the rule, there’s no escaping it. So the Talmud in tractate Avodah Zarah brings this up regarding the enactment of the eighteen decrees, and various other things they changed there—gentile cheese and oil and things like that—and it brings this principle that there has to be a religious court greater in wisdom and in number. And the medieval authorities struggle with the relationship between the two passages. In the passage in Beitzah, the rule is that something enacted by formal count needs another formal count to permit it, and it doesn’t mention the condition that the later court must be greater in wisdom and number. In the passage in Avodah Zarah, it does need to be greater in wisdom and number. So what’s the relationship between them?

So a number of medieval authorities write—there’s the Ritva and the Meiri, the Ritva in Shitah Mekubetzet on Beitzah. He says: “And if you ask, what is this teaching us? After all, this egg becomes permitted, and we hold that one court cannot revoke the words of another court unless it is greater than it in wisdom and number?” So he says: “One may answer that here it is different, because the reason has lapsed, and strictly speaking it would have lapsed on its own, except that Scripture required a court’s permission. Therefore any important court suffices, even if it is not greater than the first, because this is not considered revocation.” That is exactly your point from earlier.

The Ritva says: in Beitzah we’re talking about a situation where the reason has lapsed. Reality changed, and the reason lapsed, and we saw in the passage that this is explicitly the case there. Right? The giving of the Torah ended—why should one still separate from his wife? Or “the sheep and cattle shall not graze opposite the mountain”—that’s over, it’s no longer relevant. But you still need permission from another court, so that not everyone makes up the law for himself. You need the permission of a court; that’s why they established that something enacted by formal count needs another formal count to permit it. But it does not have to be greater in wisdom and number. Why not? Because it is not coming to disagree with the earlier court. If it came to disagree with the earlier court, then it would have to be greater. But here it is only explaining the words of the earlier court, so therefore not. And the Meiri says the same thing; several medieval authorities say this.

But Maimonides—Maimonides does not write that way. Maimonides writes in Laws of Rebels, chapter 2, as follows: “A great court that interpreted one of the hermeneutical principles as it seemed to them, and judged a law accordingly, and afterward another court arose and they saw another reason to overturn that ruling and judge otherwise—the later court may overturn and judge as it seems fit to them. As it is said: ‘to the judge who will be in those days’—you are obligated to follow only the court of your own generation.” So every court in every generation can disagree with an earlier court.

[Speaker B] Here—it sounds like this is Torah-level. This isn’t an enactment?

[Rabbi Michael Abraham] We’ll still see. We’ll still see. In any case, every court in every generation can disagree with an earlier court; it does not need to be greater in wisdom and number. He doesn’t mention that here. Halakhah 2: “A court that decreed a decree, enacted an enactment, or instituted a custom, and the matter spread throughout all Israel, and another court arose after them and sought to revoke the earlier matters and uproot that enactment, decree, or custom—it cannot do so unless it is greater than the first in wisdom and in number. If it was greater in wisdom but not in number, in number but not in wisdom, it cannot revoke their words. Even if the reason for which the earlier court decreed or enacted has lapsed, the later court cannot revoke unless it is greater than they are.”

Now one can ask: how can they be greater than them in number? After all, the Great Court is always seventy-one, so how can there be a court that is greater in number? So he says: this means the number of the sages of the generation who agreed to and accepted the matter, and who said, “the Great Court said this,” and did not dispute it. Meaning: you have to add the sages of the generation to the Sanhedrin, and that is what determines greatness in number. Interesting. Because generally, with later generations population grows, so there is an inherent advantage to the later court—it will be greater in number. And there is an advantage to the earlier court—that it is greater in wisdom. So to satisfy both requirements is usually harder. In a moment I’ll get to this issue of decline of the generations.

In any case, how does Maimonides understand the relationship between the passage in Beitzah and the one in Avodah Zarah? Not like the Meiri and the Ritva. Maimonides makes the distinction between Torah-level law and rabbinic law, not between a case where the reason has lapsed and a case where it has not. The Meiri and the Ritva distinguish between a case where the reason has lapsed—in which case any court can do it—and a case where the reason has not lapsed, in which case it must be greater in wisdom and number. Maimonides says: there is no difference between whether the reason lapsed or did not lapse. It doesn’t matter at all. In Torah-level law, any court can revoke the words of an earlier court even if it is not greater in wisdom and number, whether the reason lapsed or not. And in rabbinic law, it has to be a court greater in wisdom and number even if the reason has lapsed. So there is no difference between whether the reason lapsed or not—that’s his distinction between the passages. The passage in Avodah Zarah really deals with rabbinic law, and therefore it fits this distinction.

[Speaker C] And that’s more stringent? What? Is that more stringent?

[Rabbi Michael Abraham] More stringent and more lenient, yes, exactly. You can’t define it here in terms of stringency or leniency; it cuts both ways. But it is a different distinction.

[Speaker B] Yes, but then how was the enactment about oil permitted? Oil was not accepted by the people.

[Rabbi Michael Abraham] Fine, that’s another whole topic—that it also has to be accepted by the people. I’m not going into all the details—

[Speaker B] —of that passage there.

[Rabbi Michael Abraham] There are further definitions, and also it has to spread, and there are issues of whether it spread and whether the reason lapsed and spread—all of that is in the Talmudic discussion there. I’m not getting into all those details right now.

This position of Maimonides, that he does not distinguish between whether the reason lapsed or did not lapse—we really need to understand what lies behind it. That he does not distinguish! That he does not distinguish! That he does not distinguish! We need to understand what this means. After all, the approach of the Ritva and the Meiri is very understandable. When you are coming to dispute the earlier court, then you need to be greater than it. When you are only explaining what the earlier court meant, why would you need to be greater than it? You are the leading authority in this generation. In this generation you are the one authorized to interpret what they said. No problem—interpret it, do what you understand. So their distinction is a very logical one.

Why, according to Maimonides, is there no difference between whether the reason lapsed or not? It seems that for Maimonides this really speaks to a notion of formal authority. For Maimonides, there is a formal-level difference between rabbinic law and Torah-level law. I think it is still somewhat connected to the logic of the Ritva and the Meiri, it seems to me. Because what Maimonides is really saying is this: when we argue with the earlier court about the interpretation of a Torah law—if the earlier court interpreted it one way and we interpret it differently—suppose now a court comes and says there are only five primary categories of labor on the Sabbath, not thirty-nine. Fine. According to Maimonides, it can do that, and it does not need to be greater in wisdom and number. Why not? Because it is not disputing the authority of the earlier court; it is simply interpreting the verse differently. The prohibition of doing labor on the Sabbath is a prohibition rooted in the verse, not in the court. The court only has to explain to me what the verse means when it prohibits labor. Regarding interpretation of the Torah, the authorized court is the court of my own day. Jephthah in his generation is like Samuel in his generation. The court of today is the one that is supposed to interpret the Torah for us.

But this court is not disputing the earlier court over something that flows from the authority of the earlier court; rather, it is disputing it over interpretation of the Torah. In the end, what we do is by force of the Torah’s command, not by force of the court. The question is only what the Torah says. So today’s court is the one that will interpret the Torah for us. In rabbinic enactments, that is the difference. We spoke about this: rabbinic law is legislation, and Torah-level law is interpretation. Therefore in rabbinic law, when a court establishes something, we do it not because it is a Torah interpretation—they didn’t interpret anything in the Torah. They established a new law. We observe that law because of the authority of the court that established it. So when you come to dispute a rabbinic law, you are really coming to dispute the authority of the earlier court. You need to be greater in wisdom and number. It’s not a disagreement over how to interpret the Torah. In the Torah case, we are not really opposing what the earlier court established; we are opposing what it interpreted. But what we are doing is what the Torah said. And to the best of our understanding, that is what the Torah says, so that is what we do. But there—why should I care about your best understanding? The earlier court said it must be done this way. So why should I care that according to your best understanding it need not be done this way? You are disputing them. You cannot dispute them.

[Speaker B] Here’s the difference, here—

[Rabbi Michael Abraham] I said: this is the difference between Maimonides and the Ritva and the Meiri. Maimonides claims that even if the reason lapsed, since you are acting against the authority of the earlier court, this is still considered disputing it, and you need to be greater in wisdom and number. The Ritva and the Meiri indeed say no—I’m only explaining their words, I’m not disputing them. So I’m saying, there is in Maimonides too something of the logic of the Ritva and the Meiri. His distinction between Torah-level and rabbinic law is also essentially based on that same question: are you going against the earlier court or not? True, here one could have said like the Meiri and the Ritva that this applies only where the reason still exists—but Maimonides says no. And that is already the formal aspect.

[Speaker B] If I can interpret a Torah-level law that comes from the Holy One, blessed be He, then all the more so I should be able to—

[Rabbi Michael Abraham] And Maimonides says no. And about this, I think we spoke once, and I’ll get in a moment to a similar a fortiori argument that Maimonides makes. But here I once remarked: no, it is not an a fortiori argument. This is what Maimonides says. Usually the thinking is: why is it not an a fortiori argument? Because sometimes the sages reinforced their own words even more than the Torah’s words. The sages made a fence—they were more stringent with rabbinic law so that people would not think it was a lighter kind of law. But I think here it is more than that; here it is a substantive idea, not some desire to strengthen rabbinic law. So why should I observe what the earlier court said against what the Torah says? After all, in my view the Torah says something else.

[Speaker B] Then why can’t I interpret the rabbinic law?

[Rabbi Michael Abraham] Right, so I’m saying: first of all, the Meiri and the Ritva really do say that if you are interpreting the earlier rabbinic enactment, there is no problem. Maimonides claims that in any case—perhaps as a non-differentiated rule—whenever you are acting against things rooted in the authority of the earlier court, not because it interpreted but because it legislated, you are essentially acting against its authority. You need to be greater in wisdom and number even if the reason has lapsed. And here it probably enters the category of a flat rule. But the logic distinguishing rabbinic from Torah-level law is still very similar to the logic of the Ritva and the Meiri.

[Speaker B] You probably already discussed whether rabbinic law is a decree or something like a fence around Torah law, so is it in that category? No, no.

[Rabbi Michael Abraham] An enactment is not a fence. A fence or a decree—a fence or a decree is not like enactments such as Hanukkah and Purim; those are not a fence around anything. The sages established that one should do such-and-such, like washing hands. Fine.

In any case, the Ra’avad comments here on the law. “Said Abraham: the adornment of the markets of Jerusalem with fruits is difficult for him, for the earlier authorities enacted it, and Rabban Yohanan ben Zakkai revoked it after the destruction, because the reason of the earlier ones had lapsed, and he was not greater than they were.” Here we now get to decline of the generations. Maimonides says something excellent here—I mean the Ra’avad, sorry. He says something excellent. After all, Rabban Yohanan ben Zakkai revoked the enactment of adorning the markets of Jerusalem with fruits, because people no longer came on pilgrimage and so no first-fruits were brought. Is that halakhic? What? Yes, there was some kind of enactment to adorn the markets of Jerusalem with fruits, and he revoked it. The Talmud brings this in Beitzah. Is that halakhic? The Talmud treats it as law. The Mishnah in Bikkurim talks about all the horns and the whole procedure—it apparently is law, not just some custom people practiced.

In any case, the Ra’avad says: how did Rabban Yohanan ben Zakkai revoke it? We see—the Ra’avad argues like the Meiri and the Ritva. Meaning, in a place where the reason lapsed, you do not need a court greater in wisdom and number. You still need a formal court in any case—you need authorization by a court—but it need not be a court greater in wisdom and number. And “adornment of the markets of Jerusalem with fruits” is the proof, because since the reason lapsed, Rabban Yohanan ben Zakkai revoked it. So we see that when the reason has lapsed, a later court can revoke it.

On the face of it, this is very strange. Maimonides also agrees it can revoke it if it is greater in wisdom and number. True. Did Rabban Yohanan ben Zakkai revoke it because he was greater in wisdom and number? No. The Ra’avad assumes that Rabban Yohanan ben Zakkai was not greater. Why not? Because he was just an individual? No, no, no. What one is tempted to say is: decline of the generations. Since he came later, it follows that he was presumably lesser, and therefore he could not revoke it. But according to the Ra’avad, this law turns into a dead letter. Because how could there ever be a situation in which a later court could revoke the words of an earlier court? By definition, once it is later, it is smaller. So how can it be that when the court is greater in wisdom and number, it can revoke the words of the earlier court? It simply will never happen. Because once it is later, the assumption is that it is lesser in wisdom, and therefore it cannot revoke. So according to the Ra’avad this law is a dead letter.

But in truth the Kesef Mishneh already senses this, and says that Maimonides could certainly answer this. But the Ra’avad probably is not making a general claim, because a general claim like that is absurd—it empties the law of all content. Rather, the Ra’avad argues specifically that Rabban Yohanan ben Zakkai was not as great as the earlier ones. The greatest of them all, the smallest of them all—Jonathan ben Uzziel was the greatest of them all, Rabban Yohanan ben Zakkai the smallest of them all among Hillel’s disciples. Jephthah in his generation is like Samuel in his generation. What? Jephthah in his generation is like Samuel in his generation. Who was earlier? Samuel. Jephthah. Jephthah. Ah, Jephthah, right. But he says, “Jephthah in his generation is like Samuel in his generation.” Okay. So in any case, the Ra’avad is apparently relying specifically on Rabban Yohanan ben Zakkai, and there is a Talmudic statement that he was the smallest of Hillel’s disciples, while Rabbi Jonathan ben Uzziel was the greatest of Hillel’s disciples.

Still, why does that matter? What does that mean—that the whole previous generation in his eyes were Hillel’s disciples? So if Rabban Yohanan ben Zakkai was the smallest of them all, then it doesn’t matter who sat on the Sanhedrin—Rabban Yohanan ben Zakkai was smaller. Fine, I don’t know. Maimonides will probably not say that.

In any case, this is a comment on decline of the generations. Of course, the required conclusion is that there is not necessarily such a thing as decline of the generations. If there were decline of the generations by definition, that would mean this law was dead law. This law proves that there is not necessarily decline of the generations. There may be, sometimes there is, sometimes there isn’t—but there is no such absolute rule that whoever is later is always lesser. That they should revoke like this? That’s an interesting question. Rav Kook, in Nevukhei HaDor, speaks about this—I think I mentioned it. The question is whether a court can revoke the rule that we do not interpret scriptural reasons, or revoke the laws of revocation themselves—that to revoke, one must be a court greater in wisdom and number. That too is a law. So how do you revoke that law itself? The question is whether that is Torah-level or rabbinic; where does the power come from? Simply speaking, it appears Torah-level. The Talmud does not present it as a temporary enactment or one for all generations, and so on. All the discussions about revoking enactments, like before, are from Torah law—how enactments are revoked. At least that is how it seems. “According to all that they instruct you.” Yes, but the question is: how can you revoke it, or who is the one who must instruct you?

Anyway, that’s the framework for the discussion. Now what this basically means is that when the reason for an enactment has lapsed, according to Maimonides at least we cannot revoke the enactment unless there is a court greater in wisdom and number. But even according to the Ra’avad, you still need a court. It does not have to be greater in wisdom and number, but it does have to be a court. So in short, purposive interpretation is not something trivial—it requires authority. Both Maimonides and the Ra’avad agree about that. Which authority? That’s another discussion. Which in itself is a novelty, because at first glance purposive interpretation contains nothing novel. I’m not going against anyone before me; I’m simply interpreting what he meant. What’s the problem?

I really think that where we are interpreting the words of the earlier court from the outset, I don’t think anyone would disagree that this is possible. We do it a lot. Where a problem arises is when a new situation emerges—the point I introduced at the beginning of the lesson—a new situation arises regarding which we think the earlier enactment or decree is not relevant, even though this too is only purposive interpretation. We are saying: those who decreed it did not intend a factual situation of this kind. But since until now things were not like this, and now a new situation has arisen, here Jewish law apparently requires some kind of formal authority. And in that sense, we do not derive the scriptural reason even in enactments. Even in enactments we do not follow the reason.

And very interestingly, I brought the words of Tosafot HaRosh in Bava Metzia 90, who says that in such a case we do derive the scriptural reason—where the reason is clear, as it were. How do you determine when you decide this? In the responsum of the Rosh, section 2, siman 8, he says something similar about rabbinic enactments. He says: “It is not comparable to something prohibited by formal count, which has no permission except through a court greater than it in wisdom and number, because since the reason for the prohibition is known, if the reason has lapsed, the prohibition lapses on its own.” Exactly what Tosafot HaRosh says in Bava Metzia 90, the Rosh says in a responsum about rabbinic enactments. Where the reason is clear—then yes, no problem.

Now of course this opens the door to many things. Exactly. Because what do you mean that here the reason is not clear? “Adorning the markets of Jerusalem with fruits”? The Temple was destroyed. Meaning, what is the problem? This business is not entirely understandable, what the Rosh writes here. The cases appearing in the Talmud are, simply speaking, cases where the reason is totally clear. After the Sinai revelation ended, what would have been the initial thought that they should continue to separate from their wives? Once the revelation ended—that’s it. No, still. It could be that what he means is: you need a court, but it does not need to be greater in wisdom and number, perhaps. But here he is speaking about something enacted by formal count. No, he is not speaking about greatness in wisdom and number. So I don’t know exactly. And that is what Tosafot HaRosh says.

Let me perhaps give an example. An example about the Vilna Gaon—that there is always some hidden reason. I’ll get to that Gaon. Just one example: there is a Talmud in tractate Shabbat discussing, “One may not read by candlelight.” In the Mishnah it says that, and in the baraita a reason appears: “One may not read by candlelight lest one tilt it.” Lest you tilt the flame, adjust the lamp. Now Rabbi Ishmael once stood and read by candlelight, and then he was about to tilt it—or actually tilted it, there are different versions—and then he said: how great were the words of my colleagues, that I should not have violated their words, because indeed either I almost violated them or I actually did.

About that, I saw that several later authorities ask: and what did he think initially? After all, they prohibited it. What difference does it make whether in your case it won’t happen? There is purposive interpretation here, basically, right? That is what he is doing. He says: I’ll read and I won’t tilt it, so there is no problem. In my case there is no problem; I’ll read and I won’t tilt it. That’s why he read. In the end it turned out he had been mistaken in his assessment of reality; he could in fact have tilted it. And suppose he had not been mistaken in his assessment of reality—once they prohibited it, they prohibited it. What does the reason matter now?

So I saw that the Hazon Ish discusses objections and answers to Rabbi Akiva Eiger’s objections, where Rabbi Akiva Eiger remains with “requires further analysis.” He wants to claim that a great person is allowed to make such a judgment. A great person can make purposive interpretation; what is written here is for the general public. Others want to argue that where the reason is written explicitly in the body of the decree—usually decrees did not state the reason, one can try to understand what the reason was, but it is not written. Why here did they write, “One may not read by candlelight lest one tilt it”? They added the rationale as well. In order to tell you that here you can make purposive interpretation.

The practical Jewish law is also interesting in this context. As I mentioned earlier, in the Shulchan Arukh it says that even if the light is two stories high, it is still forbidden to read by candlelight—even though there is no concern that one might tilt it. Fine, it may be because of Rabbi Ishmael, who made purposive interpretation and almost stumbled, so they made a special decree here not to do purposive interpretation. I don’t know. But for example, if there is a watcher, then it is permitted. If someone sits next to you and watches that you do not tilt it—you read and someone beside you keeps an eye on you—that is written explicitly in Jewish law as permitted. I don’t know exactly how they determined the non-differentiation there, why this yes and that no; it is not clear to me. Fine, that is one example.

Beyond that, there are situations in which, as I said earlier, suppose I come to the conclusion that the original law was based on a mistake—a mistake even at the factual, scientific level, whatever. For example, killing lice on the Sabbath. Fine. So clearly until now they permitted killing lice on the Sabbath. The sages—it is explicit Talmudic law—permitted killing lice on the Sabbath because they do not reproduce sexually, apparently like the Maharal’s explanation. Now today, according to our best scientific knowledge, that is not true. I think that even in such a situation there is no barrier to interpreting and revoking this permission. Revoking a Torah prohibition? What? Is this an enactment? No—it is a Torah-level permission. It would be creating a new Torah prohibition. To dispute it—you can’t dispute it, not for everyone and not for everyone. Once the sages established a permission, you cannot dispute them. But if they ruled regarding a louse of that kind, one that really does not reproduce, if such a thing exists—okay, one can say that maybe. Although clearly they were talking about our same lice; they simply did not understand correctly. About those lice, the imaginary lice that never existed, they established the rule. Could be.

In any case, in such a situation I think what happens is not derivation of the scriptural reason, but a determination that the rule from the outset—or the law, in this case not really an enactment—the law from the outset was based on a mistake. Like a mistaken transaction. We make a transaction and it turns out there was some incorrect fact, a material incorrect fact at the basis of the contract we signed, or we effected an acquisition, or anything else of that sort. Then it is void. It is void because from the outset that determination was not valid. This is not called revoking. It is called saying that from the outset—once we spoke about annulment of marriage, which I discussed, and I said that people constantly call it uprooting, but it is not uprooting, it is nullification. And there is a difference. “Whoever betroths, betroths subject to the sages”—so the sages have authority to uproot an existing betrothal. Nullifying betrothal means saying that it never existed. It is not to say: there was, for example, an invalid divorce bill, so I simply reveal to you that you were never married. It is not that I revoke it. For that no authority is needed. More than that—for that you do not need a court at all. An ordinary rabbi who gives legal rulings can say in such a case that the conditions were not fulfilled; there is no betrothal. The couple is not married; you do not even need a court for that. To uproot is the authority of the leading court of the generation, because everyone betroths subject to the sages. So they can uproot a betrothal even though it is valid—uproot it. Enough with uprooting, leave it, we won’t get into how and why. So then is she divorced? Here is she considered—yes. And in nullification is she considered unmarried? No, no. In both cases she is unmarried. No, is she considered divorced or unmarried? In both cases she is unmarried, not divorced. Both in nullification and in uprooting. The only difference is that in uprooting you tear out a betrothal that existed. In nullification you say it never existed. So what is the practical difference? Who has authority to do it. About the leading court of the generation you can say that everyone who betroths does so subject to them. Subject to me? I’m not such a megalomaniac—I don’t think every Jew betroths his wife subject to my opinion. So how do I nullify a betrothal? I nullify it by showing that it simply never took effect. Not because anyone made it dependent on my view.

Now there are other arguments too. For example, another argument in the sugya of “my colleagues,” also in Beitzah. Maybe I’ll show you this in the Talmud. Even when the time period is fixed in advance, by the way. When they say “for three days.” It says three days. In such a case too, does it need revocation? The medieval authorities disagreed about this. But most medieval authorities, and so too the plain sense of the Talmud, seem to hold that even when they set a fixed term in advance for the enactment, it still needs a court to revoke it. It does not lapse by itself. For example, the ban of Rabbenu Gershom was for a thousand years. When the thousand years ended, the sages said: it continues onward. Wasn’t there a difference between rabbinic and Torah-level law? What? Wasn’t there a difference between rabbinic and Torah-level law? Between rabbinic and Torah-level law. In Torah-level law there are no laws that are for a fixed time. It’s hypothetical. Yes, so it is a Torah law for its hour. It’s not a Torah law.

The Talmud says in Beitzah 6 that it is forbidden to deal with the needs of the dead on the second festival day. Meaning, in principle it is permitted, but when there are the Chavarei—some nation that subjugated Israel—then it is forbidden. So Rashi says: “And there are Chavarei, a wicked nation in the days of the Persians, who forced Israel to do labor for them. And on Jewish holidays the Jews would avoid them by saying to them: it is a holiday.” They would enslave the Jews to do work for them. The Jews said, today is a holiday, we can’t. Now if they were occupied with the needs of the dead, the Chavarei would see that it was not really a holiday and would take them for work. Therefore they forbade dealing with the needs of the dead.

So Tosafot says there: “And nowadays, when there are Chavarei, we are concerned.” Rashi explained, etc. “And now in our times,” Tosafot says, “when there are no Chavarei, it is permitted.” Right? So Tosafot says: and do not say that another formal count is required to permit it. Why not? The reason lapsed. Okay, but even if the reason lapsed, you still need a count—at least a count—or according to Maimonides even greater wisdom and number. So he says: since the reason was because of danger, and the danger passed, the reason passed. “And here too we say regarding uncovered water, which is prohibited lest a snake drank from it, and now that snakes are not common among us, we drink from it even initially, even though it is something enacted by formal count.” Nevertheless, Rabbenu Tam would prohibit it. This appears in Arukh HaShulchan and elsewhere.

So what does that mean? It means that clearly it always depends on the reason, and that is the whole point. It depends on the reason, and when the reason lapses, I want to revoke it. What kind of argument is Tosafot making when he says: they prohibited it only because of the Chavarei or only because of snakes? It is always like that. Every revocation of an enactment because of changed circumstances is because what they prohibited was because of that factor. In today’s situation that factor does not exist, and therefore things need to change.

So maybe you’ll say that because this is not a halakhic matter but a matter of judgment, it’s a matter that—it is for your benefit that you not— Are you saying this is not really a prohibition at all? What? It is not a prohibition, it is danger? Yes. And with the Chavarei? Also to prevent danger—that they would abuse us or something like that. I think, though, that Tosafot’s reasoning is not that. Rather, it is what I wrote in the provocative column—let’s call it the uproar-stirring one—about legumes on Passover. I said that the prohibition of legumes, what some ironically call the “decree of legumes,” has no basis. It has no basis because if, as they explain to us all the time today, there is wheat in every bag of rice and we find things mixed into corn and all kinds of things like that—if you have a real concern, then prohibit it because of the concern, not because of the prohibition of legumes or the custom of legumes, but because there is in fact a concern. And you should inspect every place where there is a concern for leaven and prohibit it. Not only that—you should prohibit it for Sephardim too, not only for Ashkenazim. Why are you stuffing this into the category of the custom of legumes, where what was prohibited in their day was prohibited, but green legumes were not prohibited, and all these sillinesses? If it is a concern for leaven, then check according to present reality where there is concern for leaven and prohibit that. That is perfectly fine; one must be careful with leaven.

But if you say it only because of what people practiced, then first of all it is not a decree, because the prohibition of legumes arose in the Middle Ages. In the Middle Ages there was no Sanhedrin, no Talmud, and no one who could establish decrees. A rabbi can establish decrees for his own locale, but there are no decrees that enter Jewish law as binding law in the Shulchan Arukh. Only the Sanhedrin or the Talmud can do such a thing. So what is it? It is a custom. Fine, a custom has force—“do not forsake your mother’s teaching.” And even custom here is not really the point—it is a precaution. That is what I wrote there.

This is a precaution. Suppose there is a pothole in the road. Fine? The municipality has not fixed it yet. So everyone drives around it so as not to break the wheels, right? Axles. Okay? Fine. Now the municipality fixed the pothole. Now does everyone have to keep driving around that spot even though there is no pothole there anymore? Why not? “You shall greatly guard your lives.” Until now it was forbidden because there was a pothole; now there isn’t one. The reason has lapsed. But previous generations practiced not driving straight; they had to drive around it. So why don’t we continue? The answer is: because they did not establish a rule against driving straight. What they told you was: be careful with your axle, that’s all. Now, in a place where I do not need to be careful about my axle, then no. They did not establish a prohibition against driving straight; rather, people were cautious out of concern that something would happen. It is a concern, not a prohibition.

It is like the famous story about the Rebbe of Gur and the broom. He says to his attendant—they come to light Hanukkah candles—and he says to his attendant: move the broom from here. The broom is next to the menorah. He asked him why. He said: because next year all my Hasidim will light the menorah with a broom next to it. Fine. So he moved the broom and they lit the candles. What happened the next year? Everyone put a broom there, moved it away, and lit the candles. Now that is what happens when a concern is turned into a prohibition. It is a concern, not a prohibition.

So where the concern exists, it exists. You should understand: this is a somewhat formal distinction, and one has to understand it—it’s not so trivial. Because if we say that underlying rabbinic enactments are rationales, then basically every rabbinic enactment is like that. It comes to achieve something or prevent something else. So why not say regarding every rabbinic enactment that once that lapses, the enactment no longer exists? Because there are situations where they established a prohibition on the act. The reason was because of such-and-such. And there are situations where they did not establish a prohibition, but there is simply a concern. It is a formal question whether they established a prohibition or did not establish a prohibition. And therefore chronology matters here. Since the law of legumes arose in the Middle Ages, there was no institution that could establish a prohibition at all. Therefore, necessarily, legumes were not prohibited here; one merely has to be careful about leaven. Fine, so I am careful about leaven. Wherever there is concern for leaven, I do not eat it. But simply because people once practiced legumes—that is like the pothole in the road.

So one has to understand: at the conceptual level this really is similar to every enactment situation, because every enactment or decree is basically there so that something won’t happen. So what is the problem? Then it is always the Rebbe of Gur’s broom. But no. Where the sages established a prohibition, there is the formal element as we saw in Maimonides. It is prohibited. The reason is indeed because of the rationale, but the prohibition was established as a prohibition. And now, to change it, you need a formal count, or even a court greater in wisdom and number. Where they did not establish a prohibition at all, they were merely being cautious—that is what I called there a precaution and not an enactment. And with a precaution, of course, you can change. And that is the law of the Chavarei case. And that is also the language of the last Tosafot I brought. Yes, yes, that’s where I took it from. So that is one point.

One last point, just a few more minutes if you’ll allow me. There is an interesting Maimonides. Someone mentioned earlier the a fortiori argument from rabbinic to Torah-level law. Maimonides in halakhah 4, in that same chapter 2 of Laws of Rebels, after saying that Torah-level law can be changed by any court, while rabbinic law requires a court greater in wisdom and number—in halakhah 4 he says: “A court also has authority to uproot these matters temporarily”—meaning rabbinic enactments and decrees—“even if it is smaller than the earlier court, so that these decrees should not be more severe than the Torah’s own words, for even the Torah’s own words any court may uproot as a temporary emergency ruling.”

I don’t understand. In halakhot 1 and 2 you explained to me that there is no such a fortiori argument. Halakhah 1 said that a Torah law can be changed by any court; it does not need to be greater in wisdom and number. In rabbinic law they were stricter, right? Now two halakhot later you tell me this is an a fortiori argument: if a Torah law can be uprooted, then certainly a rabbinic law can be uprooted even though the court is smaller than the earlier court? How does that fit what he said above?

Clearly the emphasis is on “temporarily.” What does that mean? When the sages see that for the moment—not because the reason lapsed or is no longer relevant, and not because they disagree with the earlier court—but because we now have some reason, valid for today, because of which it is right to suspend this matter. Then he says: okay, we are not disputing the earlier court. We are enacting a new enactment. The new enactment displaces the previous one. We are not revoking the previous enactment; we are freezing it. Just as the earlier court could enact an enactment, we too can enact an enactment. Our enactment is that the previous enactment is suspended for the time being. Not revoked—frozen.

What is the difference between frozen and revoked? The previous enactment—since this is temporary. For example, could the court in the next generation restore it? The answer is yes. Because all we did was freeze it; that is not considered disputing the earlier court. On the contrary, it just need not continue renewing the temporary freeze. Now this precision in Maimonides, in my view, is extremely fundamental on the practical level. Because it basically means that all questions of authority are irrelevant where there is a current need to suspend something. When I come to suspend something because I disagree with the earlier court, or because I think their enactment is no longer applicable today, then all the rules of changing enactments come into play. But where I see a positive reason why at this time things need to be changed, then any court in any generation can do so. There is no limitation at all of “changing,” and therefore all the claims about authority—“we have no authority today” and things like that—do not exist according to this Maimonides. Even though, at first glance, according to the limitations we saw until now it would seem almost impossible to change anything.

There is no court today. What? There is no court. If there were agreement among the sages of Israel today, that would be today’s court. Even with legumes. There was no court there—that is not a halakhic decisor. Right. If with legumes there had been agreement around the legumes issue, then one could call that a court too. No problem. Today’s court—where is my proof? Because Maimonides later says: “How so? A court that saw fit to strengthen religion and make a fence so that the people would not transgress the Torah’s words may strike and punish not according to the law. But they do not establish the matter for generations and say that this is the law. And similarly, if they saw fit temporarily to suspend a positive commandment or violate a prohibition in order to bring many back to religion or to save many in Israel from stumbling in other matters, they act according to what the time requires. Just as a doctor amputates the hand or foot of this one so that his whole body may live.”

That is not just an example of what he said before. It is not an example of temporarily suspending something that the earlier court said. He says: “They saw fit to strengthen religion and make a fence so that the people would not transgress the Torah’s words.” A new fence. He is not revoking something. No—that is my proof. Why does he bring this? Because in what he said before, he does not mean that they revoke the earlier law. They make a new law. This new law says the previous law is suspended. It is a new enactment.

For example, suppose we now think that the prohibition on eating poultry with milk causes harm. We cannot revoke it; it is a Talmudic law. So we establish a new enactment that it is temporarily permitted to eat poultry with milk. And the court of the next generation can likewise establish for its generation. We cannot insert this into the permanent law; we cannot change the law. But we can establish a new law that freezes the previous law. And on that Maimonides says: surely this cannot be worse. The sages can suspend a Torah law—like not blowing the shofar when Rosh Hashanah falls on the Sabbath. So how could it be that one cannot do this with rabbinic law?

Now you may ask: who can do this? Maybe a great court, maybe not greater in wisdom and number, but at least a Sanhedrin? Clearly not. That is why Maimonides brought the example of a court that strikes and punishes not according to the law. What is that court that strikes and punishes not according to the law? Which court has that authority? Any court in any generation. How do I know? The Shulchan Arukh brings it—a section devoted to courts that strike and punish not according to the Torah’s formal law. The Shulchan Arukh does not bring laws that do not apply nowadays. Rif, the Shulchan Arukh, and the Tur do not bring laws that do not apply nowadays. Maimonides does, but the Rif, the Tur, and the Shulchan Arukh do not. So clearly a court even nowadays can uproot the ordinary law—to strike and punish beyond the ordinary law. And Maimonides says that this enactment, where the hour requires it, is like a court that strikes and punishes not according to the law. Therefore this is exactly what Maimonides means. Here not only do you not need a formal count greater in wisdom and number—you do not even need a count in the sense of the Great Court. You need the agreement of the relevant court of that generation. Because if the hour requires it, it cannot be that there is no one able to deal with the matter. It cannot be that questions of authority should impair our ability to deal with life.

And this is a point that I don’t think people noticed in Maimonides, because this precision has extremely far-reaching implications for what is happening today. About many things that in our eyes—in my eyes, I don’t know—seem really harmful, not merely irrelevant. There are things that are genuinely harmful, and people say: we can’t change them because there is no authority. But that is not true. We can freeze them, even if not change them. But if it’s not the Great Court, then who is the court? Could there be two separate courts? Certainly. Maybe each for its own locale, or maybe there really needs to be consensus. And if there isn’t consensus, then no. But at the conceptual level, there is a way out. Meaning, if among the sages of the generation there is enough consensus, the rules are not rigid—here as everywhere else.

Anyway, the point is this: there are many examples. I’ll just end with this, because I don’t want to return to it next time. Next time I wanted already to finish this series. There are many places where sages throughout the generations, long after the Talmud as well, revoked rabbinic laws. There are many dozens of examples. Anyone who wants can read in Neria Gutel’s book, The Changing of Nature in Jewish Law, in the last chapter. He himself will of course beat me up when he hears that I referred you there, because he does not agree with this point. But what appears there is a whole series of changes in rabbinic laws for all kinds of reasons, and there are various mechanisms that make it possible. In practice people did it. And in my opinion the basic mechanism is what I just said now. The sages do not need special authority for this. You need the court of Jephthah in your generation. You do not need to be greater in wisdom and number, and you do not need a Sanhedrin. You need to be those who have the authority to make decisions for this generation. It’s a kind of emergency-measure category. Yes. That’s it.