Dispute and Truth – Lesson 9
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- A summary of the historical development and the framework for dispute
- Harmonism, reasons, and weighing as the basis for halakhic truth
- Legitimate error, tolerance, and the paradox of adjudication
- Decision: truth, autonomy, and “it is not in heaven”
- Authority: formal and substantive, norms and facts
- The source of authority in Jewish law: “do not deviate,” the Sanhedrin, and ordination
- The authority of the Talmud and public acceptance: Kesef Mishneh, Rema, Rosh
- After the Talmud: substantive authority alone and autonomy vis-à-vis the medieval authorities (Rishonim)
- The exercise of formal authority and the historical model of the Exilarch and the Nasi of the Land of Israel
Summary
General Overview
The text summarizes the discussion so far about halakhic dispute as something that takes place within a striving for truth, but also within a value of autonomy, and formulates a harmonistic view according to which there is one truth with many facets, where each side grasps a correct component but not the whole. The text moves from the question of how to understand disputes and the weighing of reasons to the question of decision, and emphasizes that halakhic decision aims at truth but is carried out through human judgment and not through submission to external signs. The text develops a basic distinction between formal authority and substantive authority, links it to the distinction between authority regarding norms and authority regarding facts, and argues that formal authority is possible only with norms and not with facts. The text explains that formal authority in Jewish law belongs to the Sanhedrin and derives from it, and that the authority of the Talmud stems from public acceptance, while after the Talmud there is no formal authority, only substantive authority, and therefore the value of autonomy once again becomes a decisive element even in relation to the greatest halakhic decisors.
A Summary of the Historical Development and the Framework for Dispute
The text places the discussion at the Torah-and-Jewish-law stage after earlier discussions of truth, relativism, and postmodernism, and describes a historical development of dispute within various passages in the Talmud. The text raises questions of pluralism, monism, and tolerance, and distinguishes between a democratic majority that does not strive for truth and a majority whose goal is to reach the truth. The text raises problems of majority rule among halakhic decisors who do not sit in the same forum, and develops distinctions such as a majority in a religious court, a present majority versus a non-present majority, and qualitative majority versus quantitative majority.
Harmonism, Reasons, and Weighing as the Basis for Halakhic Truth
The text presents a harmonistic view as a kind of monism that says there is one truth, but it has many facets, and therefore those who disagree may each express different aspects of a single truth, whose totality is the truth. The text distinguishes this view from a postmodern one by saying not that everyone is fully right, but that each person grasps part of the truth, and in a certain sense everyone is mistaken with respect to the whole. The text brings the example from Gittin 6 of these and those, with “he found a hair on her” and “he found a fly on her,” and concludes that the truth is the combination: he found a fly and did not care, he found a hair and did care. The text uses the motif of 150 reasons to declare the creeping creature impure and 150 reasons to declare it pure in order to say that the reasons can be correct on both sides, but the bottom line is created by weighing the reasons according to their weight.
Legitimate Error, Tolerance, and the Paradox of Adjudication
The text defines a line between legitimate error and illegitimate error, and formulates a monistic tolerance that recognizes that this is an error but still treats it tolerantly up to a certain boundary. The text notes that criteria were established for that boundary and links them to seriousness and commitment within the halakhic framework. The text concludes this section with the relationship between the bottom line and the reasons through the paradox of adjudication, in which what determines the result is the bottom lines and not the reasons, because most of the reasons are “correct” for both sides, and the only question is how to weigh them. The text points to the possibility that judges or halakhic decisors may arrive at the same ruling through different reasons, and describes a complex dynamic created by the effect of weighing.
Decision: Truth, Autonomy, and “It Is Not in Heaven”
The text presents the transition from dispute to decision and asks whether a decision is the uncovering of the correct opinion or a technical determination that does not reflect substantive superiority. The text states on the principled level that the role of decision is to lead to the truth, but adds the value of autonomy, which requires a person to decide according to what seems correct to him even when there are reasonable grounds to assume that this is not the objective truth. The text brings Rabbi Meir in Eruvin as an example of the fact that a sage’s correctness is not enough for Jewish law to follow him, because Jewish law requires the understanding and agreement of the halakhic community and not only the internal correctness of the position.
The text grounds the value of autonomy through “it is not in heaven” and the Oven of Akhnai, and argues that even if a heavenly voice indicates certain truth, the sages decide according to their own understanding. The text formulates the relationship between truth and autonomy as cumulative rather than contradictory, where the striving is for truth as grasped through the best human understanding committed to Torah. The text uses the parable of free choice to emphasize that the goal is not only the right result, but doing the right thing through choice and decision, and parallels this to the halakhic world, where interpretations and disputes exist so that the decision will be made “out of our understanding that it is right.”
Authority: Formal and Substantive, Norms and Facts
The text defines authority as a way to decide dilemmas and disputes and distinguishes between formal authority and substantive authority. The text defines formal authority as authority that obligates by virtue of the status of the institution or officeholder, like the Knesset or a judge, even if one claims they are mistaken or self-interested. The text defines substantive authority as the authority of an expert, like a doctor, whose words are accepted because they are probably correct and not because he has normative power to compel.
The text distinguishes between authority regarding norms and authority regarding facts, and argues that substantive authority operates mainly with respect to facts, whereas formal authority belongs only to norms. The text states that formal authority with respect to facts is conceptually impossible, and illustrates this through a case in which the Sanhedrin says it is dark outside while a person sees light, arguing that there is no meaning to an instruction to “accept” a fact without persuasion. The text links this to difficulties surrounding the commandment of belief, and argues that “you must believe” is an oxymoron because belief is a factual stance of conviction and not formal obedience, and in this context brings the story of Berel and Yocheved and the position of Rabbi Hillel in Sanhedrin: “Israel has no messiah, for they already consumed him in the days of Hezekiah.”
The text illustrates the claim through the paradox of omnipotence—“a stone that the omnipotent cannot lift”—and through the question of “the current king of France is bald,” to show that there are formulations that are undefined and therefore cannot be decided by authority. The text generalizes that many areas of Jewish thought are factual questions, and therefore cannot be imposed by formal authority but only through persuasion.
The Source of Authority in Jewish Law: “Do Not Deviate,” the Sanhedrin, and Ordination
The text argues that substantive authority does not require a source because it rests on truth and understanding, whereas formal authority requires a binding source. The text presents the Torah source for formal authority in Jewish law as “do not deviate” and interprets it as authority directed to the Sanhedrin, and therefore formal authority belongs to the Sanhedrin and to those who draw from its power. The text explains that ordination is a delegation of formal authority from the Sanhedrin, and emphasizes that the Sanhedrin is not elected democratically but is appointed through a chain of ordination “from above.”
The text notes as an exceptional example the removal of Rabban Gamliel and of Rabbi Eliezer as a bottom-up revolution in the composition of the Sanhedrin that does not fit the usual model. The text brings a joke about Rabbi Baruch Ber and Rabbi Chaim to illustrate absolute acceptance of a sage’s words, and sharpens the point that this is not formal authority over facts but a pattern of reliance rooted in expertise or admiration.
The Authority of the Talmud and Public Acceptance: Kesef Mishneh, Rema, Rosh
The text raises the question of why one does not dispute the Talmud and why Amoraim do not dispute Tannaim, and presents the answer of the Kesef Mishneh in the laws of rebels, according to which the difference stems from public acceptance. The text argues that the common explanation about divine inspiration and the decline of the generations is an attempt to turn this into substantive authority, whereas the real structure is formal authority, by which the acceptance of the generations gives binding force to the sages of the Talmud. The text compares this to the local halakhic authority whom a community accepts upon itself, thereby granting him binding force within defined areas of authority.
The text notes that Rabbi Shlomo Fisher in Beit Yishai, part 2, homilies, section 15, explains the force of public acceptance by analogy to Mount Sinai, with “we will do and we will hear.” The text states that one who disputes the Talmud does not violate “do not deviate” but rather public acceptance, because Talmudic authority does not derive from the Sanhedrin but from the acceptance of the nation. The text cites the conclusion of the Rosh in Sanhedrin, chapter 4, section 6, and of the Rema in Choshen Mishpat section 25, according to which there is no formal authority after the Talmud, and adds that the attempt to renew ordination according to Maimonides did not succeed because of the lack of agreement of all the sages of Israel, as the Maharlbach argued in Kuntres HaSemikhah.
After the Talmud: Substantive Authority Alone and Autonomy vis-à-vis the Medieval Authorities (Rishonim)
The text states that after the Talmud, all the authority of the Geonim, medieval authorities (Rishonim), and later authorities (Acharonim) is substantive authority—meaning halakhic expertise—and not binding formal authority. The text describes how, when all the medieval authorities agree, that is perceived as probably true by virtue of their expertise, but there still remains a value of autonomy that allows a halakhic decisor to act according to his own understanding, similar to the example of Rabbi Meir. The text argues that there is no principled claim against one who disputes substantive authority, but there is a claim of negligence if one does so without a serious basis, and compares this to the distinction between an ordinary psychiatrist and a district psychiatrist, and between a professor of law and a judge.
The text notes that interested parties mix formal authority with substantive authority in order to increase obedience to rabbis, and presents this as a phenomenon that produces “phrases” like “according to all that they instruct you” with respect to people who do not possess formal authority. The text states that formal authority cancels autonomy on the level of obligation, but that even one who possesses formal authority should take the value of autonomy into account and exercise authority only to the minimum necessary degree.
The Exercise of Formal Authority and the Historical Model of the Exilarch and the Nasi of the Land of Israel
The text describes a vision of the return of the Sanhedrin as a possibility that would not create a utopia of uniformity but rather a danger of excessive coercion, and argues that a proper Sanhedrin should intervene only when multiple customs create social and halakhic problems, such as preventing marriage between groups. The text presents the principle “each river follows its own course” as a desirable state when there is no systemic problem, and emphasizes that even under formal authority one should respect autonomy as long as conduct remains committed to Jewish law.
The text brings a passage in Sanhedrin 5a about Rav Nachman, an expert accepted by the many, and the question of the source of permission to judge, and interprets this as a struggle between Torah centers in the Land of Israel and Babylonia over the authority of the Nasi versus the Exilarch. The text presents a model in which the professional instance certifies expertise, while the government grants formal power, and explains Ran’s homilies, homily 11, about two legal systems: the law of Torah and the law of the king. The text argues that after the disappearance of monarchy in the Land of Israel, governmental powers were “absorbed” into the Sanhedrin, and therefore people became accustomed to asking a rabbi about every area of life, and that the restoration of a quasi-monarchical status in Babylonia through the Exilarch created tension over the division of powers.
The text links this dynamic to modern positions that seek for the Council of Torah Sages to decide even on mundane matters and politics, and explains this as a product of a history in which no other authority existed besides the rabbi. The text returns and emphasizes that formal authority requires a source and delegation, whereas substantive authority rests on expertise and persuasion, and concludes at a stopping point before continuing the discussion next time.
Full Transcript
[Rabbi Michael Abraham] Okay. So first of all, a summary of the previous installments. We talked a bit about the development of dispute on the historical level, within various passages in the Talmud. I’m already skipping over truth and relativism and postmodernism and so on, which was at the beginning. Logic and truth, consistency, and the like. I’m speaking now at the stage where we had already entered the Torah-and-halakhic discussion. So we talked about the development of dispute. We talked about the question of how to relate to such disputes: pluralism, monism, tolerance. We talked about following the majority, a democratic majority and a republican majority, a democratic majority and a majority that tries to reach the truth. What happens with a majority among halakhic decisors who are not sitting in the same forum, not sitting together and exchanging opinions and reasons. After that we talked about a majority in a religious court, whose purpose is basically to reach the truth, a present majority and a non-present majority, and so on. We talked about autonomy, about the value of autonomous decision-making, and I brought the Ritva in Eruvin there with “these and those” and all the different ways to understand it. And after that I brought the harmonistic view, which is basically a kind of monism that says there is only one truth, but that truth has many facets. And therefore, many times, those who disagree are each saying an aspect that is a correct aspect, while the truth is actually the whole picture. This is not a postmodern view. A postmodern view says everyone is fully right. Here I’m saying each one grasps part of the truth; in a certain sense, everyone is mistaken. And the example of this was the Talmud in Gittin 6 regarding “these and those,” there with “he found a hair on her” and “he found a fly on her,” where the Talmud says: he found a fly and did not care, he found a hair and did care. Meaning that the truth is really the combination of the two perspectives of those who disagree, and that’s what I called harmonism. There are 150 reasons to declare the creeping creature impure, 150 reasons to declare the creeping creature pure; all 300 reasons are correct, but in the end we produce the bottom line by weighing—which reasons carry more weight and which carry less. From this I defined the concept of legitimate error versus illegitimate error, the line up to which I relate tolerantly even though it is an error, because I’m a monist, and the line beyond which I not only think they’re mistaken but that it’s also an illegitimate mistake and I don’t relate to it. I brought a few criteria for that line. At the end we concluded with the relation between the bottom line and the reasons, through the paradox of adjudication. We saw there that there is some kind of complex dynamic—that is, not a simple one—regarding the relationship between the reasons and the bottom line. Precisely because of the effect of weighing that I spoke about before, where there are correct reasons for all sides, and in the end the bottom line is some weighing of all the reasons and a decision as to which prevails. Because of that, it could be that in a religious court there are judges who rule the same way but for different reasons, or among halakhic decisors too in a Jewish legal dispute. And then the question is what do you do? I brought the paradox of adjudication, where basically what determines things is bottom lines and not reasons, because at the end of the day the reasons are mostly always correct. They’re all correct on both sides. The whole question is just the weighing among the reasons. In any case, that’s roughly where we got to. So basically what I did until now was shape the dispute—what is a dispute? Is there truth, is there no truth, how do we relate to the sides in a dispute. And now I want to start talking a bit about decision. Dispute and truth—this is our topic—now we need to see what the decision will be. Now on the principled level, what does the decision mean? We also talked about that. Meaning, is the decision an attempt to uncover the correct opinion, what the truth is—Jewish law follows Beit Hillel because they’re right—or does Jewish law follow Beit Hillel for a technical reason even though they are no more right than Beit Shammai? Okay? So I said on the principled level that the role of decision is basically to lead us to the truth. I added that there is also a value of autonomy, that a person should decide according to what seems right to him even if there are reasonable grounds to assume that this is not the truth, like Rabbi Meir—I mentioned that—they didn’t rule in accordance with him because his colleagues could not fully grasp his reasoning, in the Talmud in Eruvin. And the claim is that the fact that Rabbi Meir is right still doesn’t mean Jewish law will follow him. For Jewish law to follow him, I also need to understand and agree with Rabbi Meir’s conclusion. And therefore if I do not understand or do not agree with Rabbi Meir’s conclusion, even though if you ask me, he is probably right because he is such a great genius that there is no chance he missed something that I didn’t miss—still, since in the end when you ask me what I focus on and what conclusion I arrive at, I arrive at a different conclusion. So the duty of autonomy, the value of autonomy, basically says that I am supposed to do what I think, even though in this particular case I myself also estimate that this is not the truth. And therefore there is some somewhat complex interplay between the striving for truth, which is the basic striving in Jewish law, but a truth that is grounded in autonomy and not truth simply by virtue of being truth. Therefore, for example, when they say “it is not in heaven,” yes? We do not heed a heavenly voice, “it is not in heaven,” like in the Oven of Akhnai. Now why? After all, if it comes from heaven, that is certainly the truth, so why not follow it? The Holy One, blessed be He, Himself tells you that the Jewish law follows Rabbi Eliezer everywhere. So how do the sages rule there not like Rabbi Meir—sorry, not like Rabbi Eliezer? And the answer is because the sages are supposed to rule according to what they understand. Even though in a case where a heavenly voice came out from heaven, they too would admit that what they understand is probably not correct—that this was not the Holy One’s original intention. Fine, but “it is not in heaven”—that’s what He said. We are supposed to make decisions according to what we understand to be the truth. Now that doesn’t mean that we make decisions according to whatever we feel like, or according to what we want, or what we think in the casual sense, but according to what, to the best of our understanding, is the truth. So in the final analysis, the value of autonomy comes together with the value of truth, not in place of it. My goal is to try to understand what the truth is. And therefore in the end I am supposed to do what I think is the truth. True, there may be other indications—a heavenly voice comes out, or Rabbi Meir says otherwise, or something like that—through which I can understand that I am probably mistaken even though I think this is the truth. And in those cases I will do what I think, even though in objective truth I am probably not right, it is probably not the objective truth. But clearly my autonomous striving for decision is a striving for truth. I am looking for what Jewish law says, not what I feel like doing. What God intended, what the Torah means. The only point is that I need to do that out of my own striving, out of my own autonomous judgment. By analogy, you can discuss, for example, why the Holy One gave human beings free choice. Just as a parable, to sharpen the point. Why did He give us choice? After all, choice basically allows us also to do bad things—moral transgressions, halakhic transgressions, all kinds of things. Why give us choice at all? He could have programmed us to do what is right and everything would be fine. Why get involved in all this mess? If the Holy One gives us choice—and I assume He does, I’m not a determinist—then that means that the Holy One is not interested only in results as such. Because if He were interested in that, He’d just program us and get exactly the results He wants. We’d all be deterministic robots and we’d do exactly what needed to be done. If the Holy One gives us choice, that means He wants us to do the right thing, but He wants us to do it by our own choice. And if we do the right thing not by our own choice, that doesn’t help Him.
[Speaker B] That’s exactly “it is not in heaven.”
[Rabbi Michael Abraham] Right. So therefore the fact that we try to do the right thing is a correct thing—that’s how it should be. But on the other hand, you have to understand that it’s not only that. It has to be the right thing in the way that we choose to do it. Say someone gave me an option: someone will hypnotize you and make sure that you do only the right things and not the wrong things. Would I agree to that offer? I don’t know about you, but I wouldn’t. And I also don’t think one should agree to such an offer. Not out of weakness—I mean, I don’t think one should agree to such an offer. Why? Because the goal is not that we do the right thing. The Torah was not given to ministering angels, as you said. The goal is that we do it out of our own decision to do it. That is the meaning of an action. Therefore an action of a human being is an action done out of his own decision, out of his own choice. So the fact that the Holy One wants us to perform a certain set of actions is true, but He also wants us to do them out of our own decision to do them. And in the same way I’m speaking also in Jewish law. It’s a parable, but the parable is very similar to the thing itself. In the halakhic world too, we are supposed to do what is right, what the Holy One intended. But if He only wanted us to do that, He wouldn’t have given us different sides and different possibilities; He would have programmed us to do what is right. If the Holy One tells us that we have Jewish law and judgment and arguments and votes and so on, that means that He probably wants us to do the right thing out of our understanding that it is right. Out of our own decision—that is the value of autonomy. Therefore, many times the value of autonomy looks as though it is contending with or standing opposite the value of truth, because autonomy—what I always come to say is—even at the price that this is not the truth. But it doesn’t really contradict it; rather, it adds to it. And you have to do the truth, provided that in your autonomous decision you understood that this is the truth.
[Speaker C] But you don’t understand—the Torah is the guiding line that was given to you.
[Rabbi Michael Abraham] And within the Torah there are interpretations, and everyone interprets as he interprets. So that’s why I’m saying: of course, we are all within this framework, using Torah to understand what is right; we’re not deciding on our own independently what is right. But even when we decide what the Torah says, that depends on interpretations, positions, values, conceptions, and each person reaches a different conclusion. So what are you supposed to do? Take the words of the greatest authority and all of us do what he says—that’s best. Like Plato’s rule of the philosophers; we talked about that. Why not do it? Not do it because it will bring us to do the most correct thing—that’s true. But the goal is not that we do the right thing, but that we do the right thing out of our understanding that this is the right thing. And there is value to our autonomy alongside the value of truth, in addition to the value of truth. The conclusion is that what we need to do is the combination of both things: truth and autonomy. Both together. Okay.
[Speaker D] Like Kant said, dare to use your own reason—is it the same idea?
[Rabbi Michael Abraham] I don’t know that saying, but it sounds like it, maybe, I don’t know. Fine. So that’s about the way of looking at dispute and at reasons and harmonism and so on. I now want to move to the question of decision. So how do we move from the question of dispute to truth? Yes, our topic is dispute and truth. So how do we move from the state of dispute, when our goal in halakhic ruling is to reach the truth? This is not a democratic majority that does not strive for truth, but a majority in the halakhic sense whose goal is indeed to understand what the Holy One wants—the question is what the truth is. So in such cases we need to understand how we make that transition. We talked a bit about a qualitative majority versus a quantitative majority, a majority of feet versus a majority of heads, and so on, but all these are simple things: if you are striving for truth, then clearly what matters is a majority of heads and not a majority of feet, in principle. There are only technical limitations that sometimes force us to go after the feet. So regarding authority in Jewish law, I now want to talk about the concept of authority. Because that too actually somewhat challenges the concept of truth and somewhat interferes with the view that the goal of halakhic decision is to reach the truth. What does authority actually mean? Authority in Jewish law. When there is a dispute or when there are different opinions, very often we look for an authoritative solution. Meaning, who is the authority that will determine what the Jewish law is? If there is such an authority, then once it determines that this is the Jewish law, that is what we will have to do. Okay. So what is the meaning of authority? The meaning of authority is usually to decide dilemmas or disputes. Authority says what is correct. Okay. One can speak of authority in two senses, only one of which is really the concept of authority; the second is a borrowed usage. I call them formal authority and substantive authority. Formal authority is authority where I do things because the authority determined them. Meaning, by virtue of his being who he is, what he says obligates me. For example, the authority of a parliament, of the Knesset. If the Knesset legislates a law, then it obligates me not because the Knesset is right and they’re all exalted angels, but because it is the Knesset. That is formal authority. And someone will say, yes, but that’s a bunch of self-interested idiots talking nonsense. He may be right; it’s even likely he’s right. But their authority does not derive from the fact that they are wise, or that they don’t make mistakes, or that they are correct. Their authority derives from their being the Knesset—that is the institution that determines things in this matter.
[Speaker F] What’s your name, remind me?
[Speaker E] Avinoam?
[Rabbi Michael Abraham] Last name? Dayan? Are you with us? Yes, right. Okay. And there was someone else I saw? Remind me? Not listed. Okay, then no attendance is needed. Fine. So I’m talking about formal authority. That is authority that derives from the status of the authority-holder. Yes—ad hominem, what in logic is considered a fallacy, right? To accept a position only because someone said it. To say, surely one should be a socialist—even Einstein was a socialist. Or one should believe in God or not believe in God, because even Einstein believed or didn’t believe in God. Okay? Everyone uses that, each one in his own direction. That’s an ad hominem fallacy. We are not supposed to accept something just because so-and-so said it, even if he is very wise. We are supposed to weigh the matter and decide whether it is right or not. But in the context of formal authority, that is exactly what we are supposed to do. With formal authority, I am supposed to say: this is the law because that is how the Knesset decided. Okay? In this case, it’s not reliance on wisdom; it’s reliance on formal status, on the institution, yes, institutional authority. Or a judge: when he determines who is right in the case before him, then he is the one who determines—not because he is the wisest. He determines because it is his role to determine. He has authority to decide. What he says obligates the litigants. Okay? So that is formal authority. In contrast to that there is another concept of authority, which as I said, it’s not really correct to refer to as authority. And that is called substantive authority. Substantive authority is like the authority of a doctor or of an expert. I go to a doctor, I tell him, look, I’m sick in such-and-such a way, he examines me, he tells me take this medicine. So I take that medicine because he is a doctor, he understands this. I don’t understand it. I trust that what he says is probably correct. He doesn’t want to kill me. So the assumption is that what he says is what is right to do. This authority is based on the fact that this is what is correct, not on his being a doctor. His being a doctor is an indication. If there were someone else who is not a doctor but understands medicine—he doesn’t have the certificate, he didn’t do the studies, but I have complete trust in his knowledge—I would do exactly the same thing, whatever he says. This is not institutional authority. In fact, it’s not authority at all. I do it because in my opinion it is correct. The fact that I myself don’t understand because I don’t understand medicine—so I go to someone who does understand medicine and he tells me what is correct. The authority of an expert is not formal authority. It is substantive authority because he understands it. Therefore, for example, say a doctor prescribed me a medication and I didn’t take it. Okay? Can anyone accuse me of not obeying an authority? I’m allowed not to take the medication—there’s no prohibition. I’m just being stupid if I don’t take it, because he understands it and I’ll remain sick. Okay? So there is no claim against me here that I’m not obeying someone with substantive authority; rather, it simply makes sense to listen to him because he understands it. With formal authority, if I don’t listen, the claim against me is not that he understands it and is right. He may not be right. But the claim against me is a normative claim: you must do it because he is the legislator, or the judge, or the police officer. Okay? Therefore, these two types of authority, in some ways, are almost opposites. The second kind, substantive authority, is not really a concept of authority. I listen to him not because he said it; I listen to him because I think it is the truth. The fact that he said it is an indication that it is the truth, that’s all. But the fact that he said it does not mean anything in itself. If the truth were revealed to me in some other way, I would do it too. It has nothing to do with him. A law—I would not obey it if it came from some other institution, because I would not be obligated. Meaning, it has no status. That is formal authority. So that is the difference between substantive authority and formal authority. Now where does it come from—or maybe one more remark: it is possible to speak about authority with respect to norms and authority with respect to facts. Authority with respect to norms is authority that says: this is permitted, this is forbidden, this is obligatory. And if, say, an authority determines forbidden or permitted—God, for example—then I am supposed to obey. That is authority with respect to norms. Authority with respect to facts is the authority of someone who tells me: such-and-such is the fact. This is the fact, this is the factual truth. That is called authority with respect to facts. The fact that he says that this is the fact.
[Speaker H] What? The fact that he said it isn’t a fact.
[Rabbi Michael Abraham] It is a fact that he said it. But that doesn’t mean that the fact itself is correct, yes, obviously. So now I’m connecting these two distinctions—formal and substantive authority, and authority regarding facts and regarding norms. Substantive authority, the authority of an expert, exists mainly with respect to facts. You ask him what fact will cure the disease, what the scientific fact is. So he understands it, and if he said it, I trust him, so I accept his authority. Substantive authority regarding norms can exist, but it is more marginal. Because I don’t really recognize authority there in experts on morality, for example. What is right? No—everyone has his own values. You have values, very nice; I also have values. Like someone said—I don’t know, Groucho Marx? Who said it? Someone said it. I have lots of principles, and if you want, I have others too. If these aren’t acceptable to you, I have others as well. Meaning, authority regarding moral norms or other norms is a bit doubtful. That is, many times people claim the crown of moral experts. They may perhaps be experts in the history of morality, experts in moral positions, people who know many moral conceptions of one kind or another. Expertise in moral decision-making—I’m very doubtful that such a thing exists. Even though there is skill in moral thinking. There is such a thing. I mean, it is not true that basically everyone is equal to everyone else, and the fact is that very often in an encounter between someone skilled in moral thinking and someone less skilled, the more skilled one will manage to persuade the other and not the other way around. So I am not claiming that there is no skill in moral thought—that is not my claim. But authority is a stronger concept. So substantive authority exists with respect to facts, and in a weaker way also with respect to norms. For example, a halakhic decisor or a judge is an expert in a normative field, not in facts. The question is what the Jewish law says, what the legal system says, things like that. And still there are decisors, and there are those who are less knowledgeable in Jewish law. There is such a thing as expertise in Jewish law. Maybe you could translate it into expertise in facts—the fact of what is written in Jewish law. That too is a kind of fact, and he knows better than I do what is written there. But it’s not only that, because there are many times decisions and interpretations and room for argument, and therefore halakhic expertise is not only factual knowledge. There is also a certain recognition that he is an expert in Jewish law. If he says this, he is probably more right than I am. Okay? Therefore there is also expertise or substantive authority regarding norms and not only facts. But formal authority exists only with respect to norms. There is no formal authority with respect to facts. Meaning, with respect to norms, say they tell me: look, it is forbidden on the Sabbath to separate refuse from food. Now suppose I think, no, actually taking food out of refuse is forbidden; refuse from food is fine, why not? It seems to me not like that. Selecting is food from refuse, not refuse from food. Then the Sanhedrin comes and tells me it is forbidden to separate refuse from food. So the formal authority of the Sanhedrin means that I am supposed to obey them even though I think otherwise. By the way, I don’t have to be persuaded that they are right. And I must obey them even if I think they are mistaken. That is “do not deviate,” and that is the formal authority given to the Sanhedrin. This is authority regarding norms. And formal authority basically requires me to do something not on the basis that it is correct, but on the basis that the authority-holder determined it. Therefore, with respect to norms this is possible. One has to discuss whether this institution or person has formal authority or not. But in principle the concept—formal authority—can certainly be defined with respect to norms. But with respect to facts, no. Suppose someone tells me: look, the Sanhedrin comes and says it is dark outside. And I now see light outside. So can they say to me: look, you weren’t convinced—you think it is light, I’m not convinced, I see, okay? But they have authority, they are the Sanhedrin, “do not deviate,” you must accept what they say. Maimonides in his commentary on the Mishnah in several places writes that there is no halakhic ruling with respect to things that are matters of thought, not matters of action. People usually interpret this as one of the boundaries of halakhic authority—that at Sinai authority was granted only regarding halakhic rulings and not regarding other things. I claim that is not so. Conceptually such authority cannot exist. It’s not because from Sinai it was given that on this there is authority and on that there isn’t. Conceptually there cannot be formal authority over facts. Why? Because either way, if I think I was persuaded that the Sanhedrin is correct and that it is actually dark now, and what I see as light is perhaps some kind of error or illusion—then I was persuaded. Not because of authority. Then that is substantive authority, if you like, because I think they are greater sages, they grasp reality better than I do, or something like that. But in the end, when I say now that it is dark outside, it is because I was persuaded that it is dark outside—not because of their formal authority because they said it. And formal authority, I remind you, means accepting what they say even though I think they are mistaken. That cannot apply to facts. If I was not persuaded that it is dark outside, can they come and tell me: look, but they have formal authority, you must accept it. What does “must accept” mean? If I was not persuaded, then I simply do not think it is dark now. I think it is light. Of course I can move my lips and say, now it is dark outside—especially if they threaten me with stoning, then I’ll do it. But I cannot really think that. Because if I think it is light outside, then it is light outside for me. You can’t tell me, look, but there is formal authority that says it is dark outside. With regard to facts, such a thing does not belong on the conceptual level. Not because at Mount Sinai they told us there is no authority over things that are not Jewish law, or because the boundaries of authority say that. No—the conceptual analysis itself. Unless, of course, he persuades me that I’m under some illusion and he probably sees better than I do. Maybe that can happen, it doesn’t matter, but I’m speaking on the principled level. As long as he has not persuaded me, you cannot demand that I obey, because I can’t—obedience is impossible here. What does it mean to obey? To think what I do not think? After all, I do not think that it is dark outside now. Are you commanding me to think so? For that you need to persuade me. If you did not persuade me, then I don’t think that way. I can tell you that I think that way, but I don’t think it. To see. It doesn’t matter—my conclusion, yes, to see, not—
[Speaker C] Thinking,
[Rabbi Michael Abraham] but in the end I have an insight as a result of the observation. Thinking is possibilities. No, no—that’s what I call thinking. Thinking that it is dark outside now is the result of the observation.
[Speaker C] And if the observation
[Rabbi Michael Abraham] convinced me that right now it’s dark outside or light outside, okay? Therefore there is no such thing as formal authority with respect to facts. For example, Maimonides’ first commandment, “I am the Lord your God” — Maimonides counts commandment number one in the Book of Commandments as the commandment of faith. So all kinds of people ask questions about that commandment. There are various difficulties with it. For example, how can you command faith when faith is the basis for all the other commandments? Without faith, you can’t — there’s nothing to obey. If I believe in God, then I’ll obey the commandments He commanded me. But if I don’t believe in Him, then obviously all His commandments are worth nothing to me; I won’t obey them. So how can you command me to believe in God, to believe in the commandment? Either way: if I believe in Him, then I’ll obey, but then there’s no need to command me, because I already believe. And if I don’t believe, then what good is this commandment? I don’t believe, so I’m not going to fulfill the commandments of someone I don’t believe in. Right, like the well-known joke about Berl and Yocheved, Holocaust survivors, who decided to stop believing in the Holy One, blessed be He. So they’re heretics; they can no longer believe He exists. Then one bright day Yocheved sees Berl cursing Heaven. So she says to him, Berl, what are you saying, have you gone crazy? So he says to her, Yocheved, remember — we don’t believe in Him. So she says, of course, but the God I don’t believe in is compassionate and gracious and slow to anger — how can you talk about Him like that? Meaning, sometimes a person declares that he doesn’t believe, but he actually does believe. So the claim — what I want to say — is that the commandment of faith has a more fundamental difficulty than just these difficulties, difficult as they are. There’s a deeper difficulty. Believing in the existence of God is a factual claim. Either there is a God or there isn’t. You can’t command me about facts. There is no formal authority regarding facts. Not only because here the fact is a matter of faith, and faith is a condition for the commandments — that’s also true, that’s also a difficulty — but that’s a specific difficulty about this commandment. What about if there were a commandment to believe in the coming of the Messiah? That commandment also could not be enforceable. There can’t be such a commandment. Why? Because the coming of the Messiah is a fact. Either the Messiah will come or he won’t. We don’t know it — that’s not the point — but in principle it’s a fact whether he will come. Right? Now if I reached the conclusion that he won’t come, for whatever reasons, doesn’t matter how — I reached that conclusion, okay? So what will they tell me? Yes, but there is formal authority, you are obligated to believe that the Messiah will come. What does “obligated to believe” mean? “Obligated to believe” is an oxymoron. Either I’m convinced and then I believe, and if you didn’t convince me then I don’t believe. So what good does it do that I’m obligated to believe? There is no such thing as being obligated to believe. Either I believe or I don’t believe.
[Speaker B] And the same thing would apply to “and you shall love”?
[Rabbi Michael Abraham] No. “And you shall love” is not a fact. “And you shall love” is a norm. An emotion. Yes, in principle, yes. There there are other questions — how can you command emotions and so on — but I don’t think that’s so difficult. Yes, you can command emotions. But it’s a normative command, not a factual one. You need to work on yourself in such a way — not “work on yourself” in the negative sense, but to internalize within yourself love for the Holy One, blessed be He — and there are ways to do that, to influence our emotions; we can do it. It’s not absurd. Maybe it doesn’t always work, maybe it’s not always easy, fine, but in principle there can be such a commandment. There’s no conceptual problem here, okay? But to believe in the coming of the Messiah, for example — that’s an oxymoron. A commandment to believe in the coming of the Messiah is an oxymoron. Because — or a commandment to believe that the world has existed for five thousand seven hundred years. That’s an oxymoron. There is no commandment to believe. If I’ve been convinced, then I believe it, and if I haven’t been convinced, I don’t believe it. But formal authority instructing me to believe a fact — that’s just an oxymoron. It can’t be that such a thing exists, conceptually. Okay? Not once, not within the framework of Jewish law or faith or whatever. It’s not that I’m inferring this precisely from verses, that this is obligatory and that isn’t. There simply is no such thing; conceptually it’s undefined. It’s like a square circle. Authority over facts — that’s like a square circle. Formal authority over facts. You can’t command me, even if you want to. About this the Talmud in Chullin says: “By God, if Joshua son of Nun had said it, I would not obey him.” Even if Joshua son of Nun stood here — yes, second only among the prophets — and told me explicitly that such-and-such is the case, I would not accept it. That’s what the Talmud says there. There are things that are clear to me are not true. All the authorities in the world won’t help. Interesting — why does it mention Joshua and not Moses our teacher? I once saw someone comment on that. Maybe there’s a limit even to that, or maybe it just didn’t want to insult him, I don’t know. In any case, the point is that there is no formal authority regarding facts, only regarding norms. With norms there’s no problem. You can say: look, you think it’s forbidden to separate food from waste; the Sanhedrin said it is forbidden to separate waste from food. You are obligated to obey and not separate waste from food, even though you are not convinced and you do not think so. That’s a command; you can accept it, you can refuse it, but it’s a defined command. And the claim that there is formal authority regarding norms is a defined claim. It’s not a square circle. You can accept it or not accept it, but it is a well-defined claim. Formal authority regarding facts is a square circle. There is no such thing. There’s nothing even to argue about, whether it’s true or not true. It’s like the problem of the stone that the Holy One, blessed be He, cannot lift. You know these sophistic tricks. Someone comes and says, “Come, I’ll prove to you that God is not omnipotent.” Because if He can create a stone that He cannot lift — if He can create such a stone, then there is a stone He cannot lift, so He’s not omnipotent. And if He cannot create such a stone, then there is something He cannot do, again He’s not omnipotent. So either way, He’s not omnipotent. Either He can create it or He can’t create it; there’s no third option, right? On both sides He’s not omnipotent, so what was there to prove? Okay, this is called the omnipotence paradox, yes, the paradox of omnipotence. It’s nonsense. Why is it nonsense? Because when a person — let’s imagine this as a dialogue between an atheist and a believer, okay? So the atheist comes and says to me, “Listen, if God… you believe God is omnipotent. Can God create a stone that He cannot lift?” So I answer neither yes nor no. I tell him, “I don’t understand your question. Please explain your question to me, and if you can explain it, I’ll try to answer.” I don’t understand the words. It’s like asking me, “Can the Holy One, blessed be He, make a square circle?” Can He or can’t He? The answer is neither yes nor no. There is no such thing as a square circle. I don’t understand your question. When I believe that God is omnipotent, then what are you asking me? “Can the omnipotent God create a stone that He cannot lift?” A stone that the omnipotent one cannot lift — how is that different from a square circle? As far as I’m concerned, it’s a square circle. I don’t understand the question; I simply don’t understand the concepts. Once you explain the question, I’ll try to answer it. So don’t push me into a corner — whether He is omnipotent or not omnipotent — and “prove” it either way. I’m not going either here or there. Explain the question, and then I’ll try to answer you. You don’t need to explain it to me. It’s like in analytic philosophy, where they bring the example: is the current king of France bald? Let’s check the entire population of bald people — you won’t find the king of France there. Check the entire population of hairy people — you also won’t find the king of France there. How can that be? What, he’s neither bald nor hairy? So what is he? What’s the answer? There is no king of France today. Of course he’s not in this group or that group. There is no king. So same thing here. There is no stone that the omnipotent one cannot lift, therefore you won’t find it in the group of things that the Holy One, blessed be He, can do, and you won’t find it in the group of things that the Holy One, blessed be He, cannot do. Because there is no such thing to find. A stone that the omnipotent one cannot lift is like a square circle, or like the non-existent king of France who is bald. Yes, it’s the same thing. Now the claim is that formal authority with respect to facts is a square circle. It’s a stone that the omnipotent one cannot lift. Therefore when people tell me, “Look, you don’t accept it, but what do you mean? It’s a principle of faith” — that’s a stupid kind of argument. What do you mean, a principle of faith? If you managed to convince me, then I’m convinced, everything is fine, so there’s no need to tell me it’s a principle of faith — I’m convinced. But if you want to influence me even though I’m not convinced, then what good does it do that it’s a principle of faith? That I am obligated to accept it? Either I accepted it or I didn’t accept it. So I didn’t accept it — what can I do? I can tell you that I accepted it outwardly. But if I didn’t accept it, then I didn’t accept it. And it’s simply undefined. It’s not a question of yes-heresy or no-heresy. Now you have to understand that almost all non-halakhic questions are factual questions. No — moral questions aren’t, and halakhic questions aren’t either; those are normative questions. But questions in what’s called Jewish thought — almost all the topics in Jewish thought are factual topics. Whether the Messiah will come or not, what the Holy One, blessed be He, supervises, how He supervises, yes, whether the Torah — whether the prophet is right or not right, all kinds of things like that. These are factual questions, either yes or no. The resurrection of the dead too — same thing. Either there will be a resurrection of the dead or there won’t. And that’s true; it’s a fact. Again, that doesn’t mean we have ways to determine it. There is no observational way to check whether this fact is true or not. But it is a factual question, either it is true or it isn’t. If someone, for some reason, reached the conclusion that this fact is not true — that the Messiah will not come. Yes, Rabbi Hillel in tractate Sanhedrin says, “Israel has no Messiah, for they already enjoyed him in the days of Hezekiah.” There is no Messiah. He does not accept the whole idea. The existence of the Messiah. So the Talmud says, “May the Master forgive Rabbi Hillel,” and still — Rabbi Hillel. Even though he denies a principle, he does not believe in the coming of the Messiah. Why? Because what can you do — he doesn’t believe. What do you want him to do? You can tell him, look, but people must believe. What does “must believe” mean? There is no such thing as “must believe.” You can try to convince him. If you convince him, all is well. For example, tell him: we have a tradition from Sinai that the Messiah will come, and the Holy One, blessed be He, certainly knows whether the Messiah will come or not. So if you convinced him, no problem, he’s convinced. Then he’ll retract and say: right, the Messiah will come. Very good, you convinced him. But convincing is not an argument from authority. If he was convinced, then of course he believes, because he was convinced. When you come to him on the basis of authority, you’re saying: even though you weren’t convinced, you must accept it. There is no such thing. I wasn’t convinced, so I don’t accept it. What does it mean, “you weren’t convinced but accept it”? To accept is to be convinced. That’s what “accept” means. Okay? Therefore formal authority cannot be relevant regarding facts.
[Speaker E] Does that also apply to all prophecies?
[Rabbi Michael Abraham] What do you mean?
[Speaker E] Things the prophet prophesies.
[Rabbi Michael Abraham] Of course. Everything a prophet says is basically a fact. I’m not talking about rebukes, where he tells me to keep the commandments, but what he foresees will happen. That’s a fact. Now what the Torah tells me is that prophets know what will happen. If I accept that, then of course I’ll believe the prophet. If I don’t accept that, then you can’t tell me, listen, but you have to listen to him, he’s a prophet. What does “listen to him” mean? If I don’t think that’s what will happen, then as far as I’m concerned it won’t happen. So he said it — so what if he said it?
[Speaker F] That’s coercion, authority.
[Rabbi Michael Abraham] Yes, formal authority is always something that involves coercion. You can’t coerce a person to accept, to believe something, or to think something. There’s no such thing. I can convince him, if I succeed.
[Speaker F] Not faith — they just coerce belief.
[Rabbi Michael Abraham] If you coerce — you can’t coerce; that’s exactly why it’s not faith. You can’t, it’s just… maybe brainwashing, perhaps, something like that — maybe that’s possible. Okay, so now let’s try to see these concepts of authority in a halakhic-historical context. The source — substantive authority doesn’t need a source, right? To accept what someone who is correct says, you don’t need a source, a verse in the Torah telling me to accept what he says because he is right. If he is right, then I’ll accept it, right? Substantive authority doesn’t need a source. When we talk about authority in Jewish law, we’re talking about formal authority. And formal authority of course requires a source. Why do I have to obey you, or that institution, or this person? There has to be some source written down — explain to me why I really have to obey you. And the source for formal authority in Jewish law is the prohibition and the positive commandment of obeying the voice of the sages: “Do not turn aside from all that they instruct you,” or “according to all that they instruct you.” That is the Torah source for the obligation to obey the sages. Whom does this source refer to? Who are these sages that one must obey? Ali Baba and the forty thieves? Who are these sages? Or anyone whom ten people decided to declare a rabbi, or the press calls him a rabbi, and therefore one must obey him? Who decides? So in the simple understanding — and that’s what is written in the Torah itself — the sages are…
[Speaker F] The Sanhedrin.
[Rabbi Michael Abraham] Right. When we go to the elders at the gate and so on — that’s the Sanhedrin. Those with ordination derive their authority from the Sanhedrin, but not all the ordained…
[Speaker E] sat on the Sanhedrin.
[Rabbi Michael Abraham] But whoever sits on the Sanhedrin, the seventy men who sit…
[Speaker E] on the Sanhedrin, they are the source of authority.
[Rabbi Michael Abraham] Or people to whom they delegated authority, whom they ordained. Everyone in the Sanhedrin was ordained, but not everyone ordained was in the Sanhedrin. There were ordained people who were not in the Sanhedrin. So their authority draws from the authority of the Sanhedrin. The concept of ordination means: I delegate authority to you because I possess authority — I am the Sanhedrin — I can delegate authority to you and now you too have authority. Here is formal authority. And it comes from the verse “Do not turn aside.” But if so, then in Jewish law formal authority is given only to the Sanhedrin. That’s it. Once we no longer have a Sanhedrin, there are no more formal authorities. That’s all. Or those ordained on their behalf — yes, I’m talking about the whole system — there are no more formal authorities. What does that actually mean? That whenever we talk about “according to all that they instruct you” — yes, Yated Ne’eman and so on — applying “according to all that they instruct you” to anyone that those writers there decided is the leading rabbi of the generation — that’s nonsense. Not because he isn’t the leading rabbi of the generation, but because even if he is, “according to all that they instruct you” does not apply to him. The obligation, or the formal authority, the duty to obey exists only with respect to the Sanhedrin. Not with respect to anyone else. Do they continue it? They continue it, yes — I could continue it to this table too, to myself as well, yes, that’s “according to all that they instruct you,” you can extend it wherever you want. The question is whether I will accept that extension. “Make for yourself a rabbi” — make him one. Formal authority means not that you make the rabbi; he makes you. If you don’t obey him, he’ll hang you. That’s what formal authority means. If you want to obey someone, maybe it is even desirable that you choose a rabbi for yourself. Very good. But that’s your choice. It’s not that he has authority; you make him into your rabbi. Authority means that they made him a rabbi over you. You are compelled; you cannot decide. No — I don’t get to choose the Sanhedrin… The Sanhedrin is not elected in democratic elections. There are no elections; the public does not need to decide who is the Sanhedrin and who is not the Sanhedrin. The Sanhedrin is chosen by Moses our teacher, who appoints Joshua, Joshua appoints the elders, the elders appoint the prophets; each one ordains the next, and each Sanhedrin appoints the next Sanhedrin or the members who are constantly joining, and the Sanhedrin continually draws from the power of the previous Sanhedrins. There are no democratic elections; the people do not express an opinion about who is in the Sanhedrin and who is not in the Sanhedrin. By the way, one of the very striking exceptions is what we saw in the classes on the historical development of dispute — the deposition of Rabban Gamliel and of Rabbi Eliezer and so on. That was a revolution from below regarding the composition of the Sanhedrin, something that does not fit the rules of Jewish law at all, because the Sanhedrin is not determined from below. Okay? I just remembered — there’s a well-known yeshiva joke about Rabbi Baruch Ber. Rabbi Baruch Ber, the author of Birkat Shmuel. Rabbi Baruch Ber Leibowitz was head of the Kaminetz yeshiva. He was a very devoted student of Rabbi Chaim of Brisk, and Rabbi Chaim of Brisk’s son was also his student, the Griz, Rabbi Velvel. So he too was a student of Rabbi Chaim of Brisk. They say: what’s the difference between the Birkat Shmuel and the Briskers, the Griz? They say: if Rabbi Chaim had said that this table is a cow, then the Rabbi of Brisk would say, nu, if Father said so, what can you do, “according to all that they instruct you” — then apparently it’s a cow. Rabbi Baruch Ber is not even here anymore; he’s already running to bring a bucket to milk the table. Meaning, he’s not in the discussion at all; he accepts it because if Rabbi Chaim said it, then this table is a cow, that’s obvious. It’s not some scriptural decree; it’s simply obvious that I didn’t see correctly. So yes, that is authority with respect to facts. Anyway, so formal authority is basically an authority that is given…
[Speaker C] That’s like what Rabbi Chatzkel said about Rabbi Shmuel, that he accepted Rabbi Shmuel’s words literally, didn’t argue with anyone. It was really like that, very Rabbi Baruch Ber-like.
[Rabbi Michael Abraham] There it’s halakhot, not facts. “This table is a cow” is a fact, not Jewish law. So the claim, in the end, is that formal authority, at least in Jewish law — unlike, say, in a state. Where does the Knesset’s formal authority come from? From the public. That’s basically “make for yourself a rabbi.” The public accepted this institution upon itself, and that is what gave it authority. The authority doesn’t come from above; it comes from below. Okay? In Jewish law it’s not like that. In Jewish law the authority comes from above. It is imposed on the public. It is not chosen by the public. Moses received from the Holy One, blessed be He, and passed it on, and one ordains the next, and this authority comes from above. Now, the verses that grant this authority — from there it comes from above — those verses deal with the Sanhedrin. Only the Sanhedrin has formal authority. Fine, so what happens afterward? What about the Talmud, for example? Why does the Talmud have any authority? It is not the Sanhedrin, not ordained people; there is no ordination in Babylonia. And what about the Geonim? The medieval authorities (Rishonim)?
[Speaker F] The later authorities (Acharonim)? All those?
[Rabbi Michael Abraham] Okay, and what about them? What is the authority?
[Speaker F] The reference point. It becomes the reference point.
[Rabbi Michael Abraham] Why? I don’t want that to be my reference point. What is the authority of the Talmud? It’s not the Sanhedrin. It doesn’t come from “Do not turn aside.” “Do not turn aside from all the things they tell you.” There is the Sefer HaChinukh, who writes that “Do not turn aside” refers to all sages in all generations, not only to the Sanhedrin. He just doesn’t define who determines who these sages are, but that is what he claims — and that’s a lone, esoteric opinion, not plausible, in short. Not plausible. The plain meaning of the verses — and this is what most of the medieval authorities (Rishonim) say as well — is that it refers to the Sanhedrin, only to the Sanhedrin. So what does that actually mean? It means that any body that is not the Sanhedrin, or does not derive from the power of the Sanhedrin, has no formal authority. Substantive authority is not conditional on anything. Someone who is an expert in Jewish law has substantive authority because he’s an expert, so he is probably right. That’s a question that does not require sources or special definitions. If someone is an expert in Jewish law, then he is an expert in Jewish law. Here this is not a discussion of sources and scopes and definitions and the like; it’s not even a matter limited by time. About the Talmud itself, this really is a major question. Where does its authority come from? Why can’t one disagree with the Talmud? Why don’t Amoraim disagree with the Mishnah, for example? There is a Kesef Mishneh on the laws of rebellious elders. Maimonides, at the beginning of the laws of rebellious elders, in chapter two, writes that there are two contradictory Talmudic passages. One Talmudic passage says that one court cannot nullify the words of another court unless it is greater than it in wisdom and in number. Another Talmudic passage says that something established by vote requires another vote to permit it, and it doesn’t mention that it has to be greater. You can’t just nullify a determination of a Sanhedrin; you need another Sanhedrin to nullify it. And it doesn’t say that it has to be greater. Most of the medieval authorities (Rishonim) — not all, most of them, and Maimonides among them — resolve this by saying that “something established by vote requires another vote to permit it” refers to Torah-level laws, and where you need a court greater in wisdom and in number, that refers to rabbinic laws, enactments, decrees, and the like. No, not the other way around. Rabbinic enactments require a higher threshold for change than Torah laws. Usually people tend to connect this with a principle that appears in the Talmud in a number of places, that the sages reinforced their own words more than those of the Torah. Sometimes the sages wanted to strengthen rabbinic laws because people tend to take them less seriously, so at times they gave them a stronger status than Torah law. What? Like, for example, saying that on a Jewish holiday…
[Speaker C] it’s stricter than after the Sabbath.
[Rabbi Michael Abraham] But because of that — still, both are rabbinic. The muktzeh rules of Sabbath and the muktzeh rules of a festival are both rabbinic. Fine, that’s also a Talmudic discussion at the beginning of Beitzah, whether it really is stricter or not is another question. In principle, according to the Talmud, we rule that there is no muktzeh on Sabbath. There are medieval authorities (Rishonim) who say yes, but on a Jewish holiday we rule that there is. In any case, I don’t think that’s the explanation of the distinction Maimonides brings here. The explanation is different. When you want to disagree with an earlier court about a Torah law, then the whole question is: what did the Torah say? The first court says that the Torah said X. The later court says that the Torah said Y. Okay? The question is what the Torah said. “You have only the court in your own days.” So as far as you are concerned, if the court of your own days says that the Torah said Y, then that’s what you need to do. It doesn’t matter whether it is greater in wisdom and number or smaller. It isn’t coming to disagree with the earlier court; it is coming to interpret the Torah, and as a result it comes out differently from the earlier court. It interprets the Torah differently. In rabbinic law, if an earlier court established a certain law, then the later court that comes to nullify it is going against the earlier court. It isn’t trying to clarify what is written in the Torah. It goes head-on to nullify what the earlier court said. For that it has to be greater in wisdom and in number than the earlier one. Because here you are going against their authority. In nullifying a Torah law, you’re trying to understand what is written in the Torah; you’re not going against their authority, it’s not a matter of authority. It’s a matter of who is right — what is written in the Torah? So I’m saying: the Sanhedrin of your own days determines for you what is written in the Torah. And if it reaches a different conclusion from the previous Sanhedrin, then it’s different. It doesn’t need to be greater. It is a Sanhedrin, but it does not need to be greater. In rabbinic law, you are going against the authority of the enacting court, the first court. And for that you need to be greater in wisdom and in number in order to change it. In any case, for our purposes, what is written there basically means that if there is a court, it can change both Torah laws and rabbinic laws — provided that if it is greater in wisdom and number, then also rabbinic laws. Okay? The Kesef Mishneh asks: then why don’t Amoraim disagree with Tannaim? At the beginning of chapter two of the laws of rebellious elders. Why don’t Amoraim disagree with Tannaim? The Mishnah? Not that there’s Rav, who is a Tanna and disagrees, but…
[Speaker F] Fine, those are isolated cases.
[Rabbi Michael Abraham] Not to disagree with Tannaim. Rashi did not disagree with Tannaim. There is Rav, who is a Tanna and disagrees; Rabbi Yehoshua ben Levi is possibly a Tanna and possibly an Amora, in that transitional generation. Rav himself was still in Rabbi Judah the Prince’s court, and afterward he went down to Babylonia. Rabbi Chiyya says, “The son of my brother went down to Babylonia” — that’s Rav. So Amoraim do not disagree with Tannaim. The Kesef Mishneh asks why. Now what would you say, or what do they always tell us, or still sell us? That they were such great righteous men, they could revive the dead, they never made mistakes, and therefore of course everything they say is the living word of God. Right? Basically we rely on their expertise or their greatness, or in other words, we have to obey them because they are right. What does that mean? Is that formal authority? That is substantive authority. We obey them because they are probably right; because they were so great, they are right. And from here comes the whole “decline of the generations” and all these folk tales about the Amoraim who can revive the dead and have half-prophecy and the holy spirit, I don’t know exactly, all sorts of things like that — “the holy cottage cheese,” as they say. The question is what is really going on here. And what is really going on here is not anything of the sort; it’s inventions for children. The authority of the Talmud — of the Mishnah with respect to the Amoraim, or of the Talmud with respect to us — is formal authority. Formal authority — in a moment I’ll explain where it comes from — but it is formal authority: we accept their words not because they are necessarily right, but because they are the Amoraim, or the Tannaim. By virtue of their status. It is not because they are right; there’s no need to say they revive the dead and possess the holy spirit. Someone who gives explanations like that is really looking for explanations in terms of substantive authority, trying to explain why they are right and therefore why everyone has to obey them. But if I say that one must obey them not because they are right, but because they are the Tannaim and Amoraim, they are the sages of the Talmud, and that obligates us like the Knesset — then there’s no need to assume they are right for that. You only need to show that this really is the authorized institution, just as the Knesset is the authorized institution in the legal context. Okay? So how does this actually work, where does it come from? We said that “Do not turn aside” teaches only about the Sanhedrin. So how can other authorities be created after the time of the ordained sages, when there is no longer a Sanhedrin? Tannaim with respect to Amoraim, or Amoraim with respect to us. So the Kesef Mishneh says: because we accepted them upon ourselves. Not the holy spirit and not the holy cottage cheese. No, not because they are right, but because we accepted them upon ourselves. Once we accepted them upon ourselves, they have authority. Think, for example, of the local rabbi. A community chooses a rabbi for itself. Then he has authority, within the limits the community set, by the way; he can’t do whatever he wants. The powers the community gave him are the powers he has. But in that sphere he has authority; he determines what is done in the synagogue, and that’s that. Why? What, is there “Do not turn aside”? No. It is because the community accepted him upon itself. It gave him the authority. This is not authority coming from above; it is authority coming from below. Once a community accepted a rabbi upon itself, then it is like the ordained sages, except that the authority of the ordained sages comes from above, and the rabbi’s comes from below. So even today there is formal authority in a certain sense, of a rabbi over his community, insofar as they chose him. With the Talmud it’s the same thing, says the Kesef Mishneh. The authority of the Talmud with respect to us, or of the Mishnah with respect to the Amoraim, is because we accepted them upon ourselves; we accepted upon ourselves not to disagree with them. That is authority from below, not authority from above. Therefore, someone who disagrees with the Talmud, for example, does not violate “Do not turn aside.” They do not have authority by virtue of “Do not turn aside”; it is not the Sanhedrin, they were not ordained. But he does violate public acceptance. Who says public acceptance has binding force? On that there is an article by Rabbi Shlomo Fischer in Beit Yishai, in the second volume, in the homiletic essays, not the halakhic responsa, section 15. Whoever wants can read it there. But in principle, it is like Mount Sinai. Why is Mount Sinai binding? Because we accepted upon ourselves, “We will do and we will hear,” right? We said: we accept upon ourselves what the Torah says, what the Holy One, blessed be He, commands. So that basically means that authority that stems from the fact that the public accepted it upon itself — exactly the same thing, if the public accepts upon itself the Mishnah or the Talmud, that too has legal force. “We accepted it upon ourselves” is binding, not because of “Do not turn aside.” But even though it is not because of “Do not turn aside,” it is still formal authority, not substantive authority. Or at least not necessarily substantive authority. They were also Torah scholars, of course; I’m not claiming otherwise. But it is not true that they could not make mistakes, and their authority does not derive from the fact that they were Torah scholars or from the fact that they did not err. It derives from the fact that we accepted them upon ourselves, that’s all, like the Knesset. It is authority from below, not from above. We accepted it upon ourselves. That’s what the Kesef Mishneh says, and I think he is right. There is a difference…
[Speaker G] between the Knesset — with the Knesset, if you don’t obey, you’ll be punished if you don’t obey the laws.
[Rabbi Michael Abraham] Here too, in principle, you would be punished. If there were a Sanhedrin, say, then they would punish you for it; that’s the Jewish law. If you don’t do it, then you sin. Fine, we have no Sanhedrin today, so there is no punishment at all in Jewish law today; it has nothing to do with the Talmud or not the Talmud. Even what is written in the Torah — if you violate it, there is no punishment today. So that’s not because of the Talmud; it’s because there is no institution that punishes today, no ordained sages. So the claim is that this is basically formal authority that emerges from below. Besides that, of course, the sages of the Talmud also have substantive authority because they were Torah scholars. Fine, that’s also true. But that exists for every sage in every generation, not only for the Talmud. If he is a halakhic expert and a Torah scholar, then it makes sense to obey him, it makes sense to do what he says, because he is probably right. Substantive authority exists for everyone. Formal authority belongs only to the Sanhedrin, and later, from below, also to the Talmud. And that’s it. It ends there. There are no more formal authorities. That is what the Rosh writes in Sanhedrin, chapter four, section 6. He elaborates on this issue, and in the end his conclusion is: there is no authority — in my language, no formal authority — after the Talmud. None. It is also mentioned in practical halakhic ruling in the Rema, in section 25 of Choshen Mishpat. There is no formal authority after the Talmud.
[Speaker C] But Maimonides said that it’s possible
[Rabbi Michael Abraham] to restore ordination — that’s a different class. He created an institution of ordination. And then it would have full force, including “Do not turn aside,” like the ordination that was interrupted. Otherwise, he says, how would it be renewed in the future? By what law? Right. But fine, if they do that, one could argue whether Maimonides is right or not. But we’re not talking about that. No one was actually ordained. Back then, one of those ordained was… there were four. Right. One of those ordained was Rabbi Yosef Karo himself. Right. In Beit Yosef it says that there are no ordained sages in our generation. He himself understood that it hadn’t succeeded, because Maimonides conditions it on the agreement of all the sages of Israel. There was no agreement there. The Maharlbach… the Maharlbach headed the opposition. He did not agree. And that’s what the Maharlbach argues in his pamphlet on ordination at the end of his responsa. He says there that he has a double argument. First, he does not agree on the merits that it is possible to renew ordination from below. But second, even if on the merits he would agree, the very fact that he opposes it means that even according to Maimonides they cannot appoint ordained sages. Because Maimonides says that this is conditional on the agreement of all the sages of Israel. Once they object, then even according to your own view you cannot ordain people. Because even you, who agree with Maimonides — Maimonides himself says that you need the agreement of the sages of Israel.
[Speaker C] It seems to me that Rabbi Yaakov Beirav offended him, the Maharlbach — he told him that I’m not one of those… what were they called… in the expulsion from Spain… he told him, I’m not one of those who had to change their…
[Rabbi Michael Abraham] Forced converts? Apostates?
[Speaker C] Yes, I’m not one of the forced converts. So that offended him, and because of that the Maharlbach ran away.
[Rabbi Michael Abraham] Okay, I don’t know, that one I’m not familiar with. In any case, for our purposes the claim is that formal authority ends with the Talmud. Everything after the Talmud, down to our own day—including the medieval authorities (Rishonim), the Geonim, everything, anything after the Talmud—that is substantive authority. What is substantive authority? It means there’s some Torah scholar, he knows Jewish law, so what he says is probably correct. Okay? And therefore it has some standing because it’s probably right. Maimonides, Rashba, the Shulchan Arukh, all the great sages of Israel throughout the generations—the authority they have is substantive authority, not formal authority. There is no formal authority besides the Sanhedrin and the Talmud. Okay? Now what does that actually mean? It means, say I’m deliberating over some halakhic question, and there’s Maimonides, Rashba, I don’t know, these medieval authorities, those medieval authorities. What am I supposed to do in that situation? So at the principled level, I should accept the ruling of the… let’s say all the medieval authorities agree, for the sake of discussion, there’s no dispute, all right? So if all the medieval authorities agree, then apparently, simply speaking, that is probably the truth. They have substantive authority, they’re Torah scholars, they all agree—that’s probably the truth. Okay? So apparently I should accept that, even though there’s no formal authority; it’s substantive authority. And this is where autonomy comes in. There is a value to autonomy—that a person should act the way he himself understands. Even if he thinks that compared to Rabbi Meir that isn’t the truth—remember the examples? And therefore, where there is formal authority, there is no autonomy. Formal authority is what it says. There’s no autonomy when we said it’s binding. Substantive authority is authority like that of an expert. Basically, you should do what he says because he’s probably right. Fine—but what if I don’t understand it that way, like Rabbi Meir? So if you ask me, I’ll still say that Maimonides is right and not me. Because he’s a greater Torah scholar, like Rabbi Meir. Fine—but there is an obligation of autonomy. And the obligation of autonomy says that I am supposed to do what I think is right. And therefore, that is the big practical difference between formal authority and substantive authority. In both cases, from the standpoint of truth considerations, what one should probably do is obey the authority. But with formal authority, that’s the end of it. With substantive authority, there is still the consideration of autonomy. Right? So if I am very, very, very convinced that I’m right, then it could be that even if all the medieval authorities are against me, I still won’t do it. Maybe if I’m not totally convinced—because in order to disagree with all the medieval authorities you need to be totally convinced. But that’s only a question of degree and weight; it’s not… there’s nothing principled here. If you do something against the medieval authorities, nothing happened at the principled level. You are not obligated to obey them. Maybe people will criticize you and say it was negligent. You can’t just casually go against all the medieval authorities unless you have a real basis. Then it’s not serious. We talked about tolerance—one of the criteria is seriousness. We’ll respect your autonomy if you’re serious, yes, we talked about that. But at the principled level there’s no claim against you for acting against authority. There’s no claim against someone who acts against a doctor. What’s the difference between a psychiatrist and a district psychiatrist? Both are experts to the same degree. But the district psychiatrist must be obeyed; he has the authority to hospitalize me by force. An ordinary psychiatrist does not. Why not? Is the district psychiatrist more of an expert? Not necessarily. He has authority; he holds a state office and was given authority to use by force, to compel. The ordinary psychiatrist is no less of an expert, exactly the same. What’s the difference between a judge and a law professor? Their legal expertise could be exactly the same; maybe the professor even understands more. But the professor has substantive authority; the judge has formal authority. If the judge tells me to do something, I have to do it; if I don’t, I’ll be taken to court. But if a law professor tells me to do something, then it’s probably the law because he understands it, but I can choose not to do it; I’m not obligated to obey him. No one will sue me for doing something against the guidance of a law professor. He has no authority, even though he understands no less than the judge. There’s a difference between formal authority and substantive authority. And in Jewish law too, that’s how it works. Therefore, the fact that someone is a Torah scholar does not mean you have to obey him. It’s always presented as some obvious derivative, but it isn’t. Formal authority—yes. Substantive authority—no.
By the way, even with formal authority—yes, the dream, or the utopia, of many, many people is that when the Sanhedrin returns and ordination returns and all that, then there will be uniformity, and they’ll finally establish Jewish law, and all disputes will be settled, and everything will be excellent, everything will be wonderful. To me that’s an apocalyptic vision. I mean, if that happens, I’m fleeing to Australia. Yes, and fortunately it probably won’t happen. But it’s also not true; that is not the utopia. The Sanhedrin is not supposed to decide in every dispute what the truth is and obligate everyone to do what they decide. That is not the correct use of formal authority. Formal authority should exercise itself minimally—meaning in a reasonable, proportionate way. What does that mean? Where differing practices on the ground can create a halakhic, human, or social problem—where people stop marrying one another, all sorts of things like that—there the Sanhedrin should intervene and say: this is the truth, this is how everyone will practice, and that’s it; all the other opinions are nullified. But where one person follows what he thinks, another follows what he thinks, and everything is fine, no problem is created, everything is excellent, each river follows its own course—in such a place there is no reason in the world for the Sanhedrin to decide and determine by the power of “do not deviate” what all of us must do. Why on earth? On the contrary, there is value in autonomy. What I want to say is that even in the context of formal authority, the value of autonomy has significance. The holder of formal authority himself has to take the value of autonomy into account, and when he imposes his opinion—he can impose his opinion—but he has to consider whether, where, and when to impose it. Only where autonomy leads to problems does he say: enough with autonomy; there is formal authority. But where it doesn’t, on the contrary, you should allow people to behave as they understand—so long, of course, as they are responsible people and have made the judgment and are committed to Jewish law and everything; I’m not talking right now… there are limits. But at the principled level there is room for several kinds of practice even if the Sanhedrin has an opinion about who is right. So what if they have an opinion? Everyone has an opinion. They don’t need to impose that opinion. There is a value of autonomy. And the Sanhedrin too is supposed to respect that value; they are supposed to intervene only where there are problems. Today, even where there are problems, there is no one to decide: this one thinks this way, that one thinks that way, and problems arise—what can you do? There are problems, but there is no institution to solve them. We are in trouble. So formal authority, in principle, on its own, contradicts autonomy—but on the other hand, those who hold formal authority have to take the value of autonomy into account when exercising formal authority.
I’ll maybe give a nice example of this. There is a passage in tractate Sanhedrin. The Talmud there talks about—there it’s talking about Babylonia—Rav Nachman was a publicly recognized expert, and he would judge alone. Page 5a.
[Speaker F] The Exilarch or something like that.
[Rabbi Michael Abraham] Yes, he sat in the house of the Exilarch, he was close there. Of the household, yes. Right, he was his son-in-law, and he sat in the house of the Exilarch, and he was essentially the chief rabbi of Babylonia. And therefore he was considered a publicly recognized expert who could judge even alone. And then—it’s at the beginning of 5a at the top—and later it discusses what happens, who is actually supposed to grant ordination? The Exilarch in Babylonia, or the Nasi of the Land of Israel? Who decides? And there was an argument in the Talmud itself, and when you read it through historical glasses you understand that what you have here is some expression of a very hard social conflict, not just a halakhic question. There is a dispute here between two Torah centers, in the Land of Israel and in Babylonia, and the question is who is in charge. The president of the Sanhedrin or the Exilarch. Who has the authority. And what is the Babylonian Talmud’s conclusion in the end? Of course, since it’s the Babylonian Talmud, that’s no surprise. The Babylonian Talmud’s conclusion is that the Exilarch is the one in charge. The president of the Sanhedrin in the Land of Israel ordains people for the Land of Israel, and the Exilarch is responsible for the whole world. His authorization is effective throughout the world, including the Land of Israel. The authorization of the president of the Sanhedrin is effective only in the Land of Israel.
[Speaker F] What about sanctifying the new month?
[Rabbi Michael Abraham] No, sanctifying the new month is something else. Sanctifying the new month has to be done in the Land of Israel. Sanctifying the new month has to be done in the Land of Israel. The authorization of the Exilarch is not ordination; it’s accreditation, right? It’s an appointment of a publicly recognized expert. Ordination exists only in the Land of Israel. What lies behind this? What lies behind it is exactly the difference between an expert and a body that possesses institutional authority, formal authority. Like the difference between a district psychiatrist and a psychiatrist, or a judge and a legal expert. When we appoint a legal expert to be a judge, who gives that appointment? The university? The university gives him the law degree. The university checks whether he is an expert in the substantive sense, whether he understands the matter, whether he knows the material. Okay? And what is the meaning of the appointment to be a judge? That is done by the government; the king does that. The government—the king is an expression of government. Okay? The government does it. Why? Because the government is not testifying that he is a legal expert; the government itself is not a legal expert. The government gives him the scepter of formal authority, and thereby makes him a judge, and now there is formal authority. The legal expert is no less an expert, but he has no formal authority because he did not receive permission from the government to compel. Which means that in order to be appointed as a judge, in order for you to have authority, two conditions have to be met. First, you have to be an expert, and that is done by the professional bodies—the university, say, the bar association, whatever. And second, you have to receive governmental power, and that you get from the government, from the king. And therefore it says, “The scepter shall not depart from Judah, nor the ruler’s staff from between his feet.” What is “scepter”? A rod. “The scepter from Judah” means the rod, the authority of the king. “The scepter shall not depart from Judah” means the king has to be from the house of David. And what is “the ruler’s staff from between his feet”? The ruler is the judge. What does “from between his feet” mean? What does that mean? He has to receive his authority from the king, from Judah. He doesn’t have to be from Judah himself; a judge can be from a tribe other than Judah and not from the house of David, but he has to receive his authority from the king. So “the scepter shall not depart” means from Judah itself—a king can only be from Judah. But “the ruler’s staff” is “from between his feet”; he has to receive authority from him, but he himself does not have to be from the tribe of Judah. A ruler—someone who has authority to be a judge or a member of the Sanhedrin—is someone who received authority from the king, because this is governmental power.
Now what happened in that dispute there in Sanhedrin 5, when I read the historical claim? What do I mean? In Derashot HaRan, sermon eleven, he writes there that in Jewish law there are basically two legal systems. There is the law of the king and the law of the courts, the Sanhedrin. The law of the Torah and the law of the king. Okay? And these are two parallel legal systems that can sometimes even clash and judge the same issues. And when you read this with modern eyes, someone who doesn’t know it opens it up and says: where did he invent this from? The king has no judicial powers; the king manages life, goes out to war, but where did you invent a legal system that draws its power from the king? Was King Solomon a judge? A king among the nations—and among us it’s the Sanhedrin and the courts. So maybe King Solomon was the president of the Sanhedrin, but not as king was he a judge. That’s the conventional conception. The Ran says no—the king was also a judge, or at the head of the legal system of royal law. The law of the Sanhedrin had the president of the Sanhedrin at its head. Okay? It’s a dual system. And what happened when kingship ended? The monarchy ceased. In the Second Temple period we no longer had kings, at least not in the full sense, certainly not from the house of David. What happened—you know what happened in Poland when the plane crashed with almost the entire legislative and executive branch on it? Poland, twenty years ago, I don’t know, sometime, not that long ago. Then the authority passed to the court. It now had all three powers—the judicial, executive, and legislative—and then it reappointed the other two branches. By the way, there’s a movie like that, if anyone knows it. In the United States there was some senator in a fictional film—the Capitol was bombed, the entire Senate and Congress were wiped out, including the president, and one senator was left who happened to be home. Now the question is what do you do? And it’s exactly the same process. He takes all the powers for himself and then starts rebuilding these institutions. In other words, where some of the branches disappear, the branch that remains will take the powers to itself. That is what happened in Jewish law. What happened in Jewish law? The governmental branch disappeared, the executive branch, yes—that is, the king. So what happened? The president of the Sanhedrin took those powers to himself. Why does the president of the Sanhedrin have to be from the house of David? Where is that written? From the mother and not from the father—Tosafot says that there, in Bava Batra there. Why? Because the president of the Sanhedrin stood in place of the king. And therefore the custom suddenly became that he too had to be from the house of David, because he had the king’s powers. And then indeed a situation arose where the court repairs the roads, like the Mishnah in Moed Katan. The Ministry of Transportation belongs to the court. What does that have to do with it? The king is supposed to manage ordinary life. The king is the government. So how did the court suddenly become the government and the Ministry of Transportation? Yes, because there is no king. In those days there was no king in Israel. So in order that every man not do what is right in his own eyes, the other branch has to take the powers to itself. And then, over many hundreds of years, we got used to the Sanhedrin president essentially also being the king. Also the president of the Sanhedrin—he was the judicial, legislative, and executive authority. He was everything. The Sanhedrin, with him at its head. That’s what we got used to for hundreds of years, until people completely forgot that originally it had been dual. As the Ran says, there was a system of the king and a system of the courts.
What happened at some point in Babylonia? There arose an Exilarch, who received governmental and judicial autonomy from the monarchy, at least during long stretches of Babylonian history, and he became a king. He essentially had the status of a king. He too, by the way, was from the house of David. He too was from the house of David. Why? Because he was perceived as a king. The Exilarch was the king of the whole world, not only of Babylonia; all the Jews in the world related to him as a king. Now in the Land of Israel they had gotten used to the result of the accident—yes, the plane crash—we lost the king, we lost all the branches, only the Sanhedrin branch remained. So now it was the legislative, executive, and judicial branch. Everything was there. And they determined everything: they determined ordinary life, they determined Jewish law, they determined everything. Suddenly the people of Babylonia come and say to them: friends, now there is already a king. New game. You are the law professors. You will ordain the people, give them the stamp of approval for their professionalism, their expertise. The governmental authority they will receive from the Exilarch. And the people of the Land of Israel did not agree. You could say this was a power struggle, but not necessarily; it was also genuinely a conflict of conceptions. Just as to this day people think that every single thing has to be asked of the rabbi. Why? Where does that come from? It comes from there. For many years we got used to every question being sent to the rabbi. There is no other authority in a Jewish community. Who else is there? So they ask the rabbi.
[Speaker F] And then—
[Rabbi Michael Abraham] They ask him all kinds of questions that have nothing to do with him, that are not halakhic questions at all. So why should he decide them? Because there is no one else to decide, exactly like the president of the Sanhedrin. In other words, the argument there was this: something terribly pathological happened. Kingship returned to Israel, but it wasn’t in the Land of Israel at all; it was in Babylonia. So the people of the Land of Israel did not agree to return things to the state in which there is a secular authority and the Sanhedrin—not bareheaded, but an authority responsible for ordinary life. Okay? They did not accept that claim. And therefore they said, what do you mean—the president of the Sanhedrin is also the king; he too will grant permission to judge. And the people of Babylonia say, what do you mean—you will ordain the people, but the permission to judge is given by the Exilarch; he is the king. That was the discussion there. And Jewish law rules there that it is the Exilarch who gives the authority.
And I think this problem accompanies us to this very day. To this day people think that the Council of Torah Sages should determine what to do politically, what to do in aspects of ordinary life. Where does that come from? It comes from the fact that they do not accept the existence of another authority. We got used to the halakhic authority basically determining everything, because we had no other authority throughout the generations. There was no Sanhedrin, there was no king, there was nothing; there was the rabbi. That’s it, the halakhic decisor. And to him they brought all the questions. And of course when the state was established, someone who does not identify with the state, from his standpoint there still is no other authority. So there is only the Council of Torah Sages, the rabbis. And they basically determine everything. “According to the instruction they teach you,” and all those empty slogans—they bring all of that because of this issue. It’s a problem of conception, a lack of historical awareness. Okay?
[Speaker C] So now you can understand Aharon Barak. He thought the Knesset didn’t exist, didn’t exist. So he decided that he decides.
[Rabbi Michael Abraham] But the Knesset did exist. Fine, from his perspective it didn’t. No, but I’m saying that in the process I’m describing, there really was no king. The claim in the end is that when we speak about formal authority, formal authority needs a source. You don’t just have formal authority because you’re smart. Formal authority needs a source. Kingship—government—gives, delegates authority to judges, to rabbinical judges, and so on. And that has to have a source. Substantive authority does not need a source. Substantive authority—if you’re wise, then you’re wise; if not, then not. But even then no one has to obey you. If I obey you, fine; if I’m convinced you’re right, excellent. If I’m not convinced you’re right, then maybe I won’t obey you. And that’s… that’s the point. And therefore many times people mix up formal authority with substantive authority, because otherwise the danger is, of course, that people won’t listen to rabbis and halakhic decisors. Because the moment you present it as substantive authority, you say okay, they’re great Torah scholars, but I think differently; in my opinion he made a mistake here, so I’m not going to obey him. No, no—supposedly divine inspiration, all the concepts of formal authority are attached to bodies that don’t really possess formal authority. Because people think that this will cause people to obey—and they’re probably right, it does cause that. Not justly, but it does happen in practice. So that is basically the meaning of formal authority as opposed to substantive authority. Okay, I think I’ll stop here, because the next stage will already take a bit of time. Maybe I’ll continue a little more next time too, to look at that approach in Sanhedrin that I mentioned and more—but that’s for next time. Okay, that’s it.
[Speaker D] All right, let’s start the chapter we went over.