Repealing and Revising Enactments in Our Time

With God's help

2011

Miki Abraham

Introduction

Jewish law does not allow the repeal of enactments and decrees, and according to some views this cannot be done even when their rationale has lapsed. In our generation, it seems that quite a few laws have accumulated that require renewal, and the absence of a religious court, together with the assumption of the decline of the generations (that we are lesser than our predecessors), prevents any possibility of touching them. This creates a situation in which these enactments are not merely superfluous and irrelevant; they are harmful. They cause desecration of God’s name, interfere with the identification of those committed to Jewish law with the halakhic framework, and lead to contempt for Jewish law in general. The feeling is that the quantity of these problematic laws is beginning to threaten the halakhic structure as a whole. This petrification undermines the system as a whole, and therefore precisely the desire to be stringent, that is, to act for the benefit of the halakhic system and its continued existence, requires changing and refreshing it.

I will bring here only a few examples, among many others: the second festival day; shaving on the intermediate festival days; laundering on the intermediate festival days; waiting periods between marriages; the decree against medicinal treatment on the Sabbath out of concern for grinding ingredients; and many more.

The first part of this article surveys the general picture that emerges from the Talmudic passages and the commentaries of the medieval authorities (Rishonim) on them with respect to the principles underlying the discussion. In the second part of the article I deal with authoritative precedents (mainly the Tosafists, the Rosh, and Maimonides). The final part is very brief. It contains specific reasonings, distinctions, and mechanisms that are difficult to prove from the Talmudic passages and the medieval authorities, but the decisors used them when necessary, primarily in order to anchor problematic practices that had already become entrenched among the public. In my opinion, these are lines of reasoning that we too may add from our own judgment, for we are no less than those decisors, who acted out of responsiveness to needs and not necessarily out of interpretation of the sugyot. Jephthah in his generation is like Samuel in his generation, and one has only the judge of one’s own days. Therefore, in my view, this should be the case for us as well, and one should not recoil from employing reasoning when needed even if, politically, it appears to be a breach of boundaries. As I shall argue, the conservative instinct leads to breaches no less severe, aside from the deviation from truth itself and the petrification, which is bad in its own right.

The first and second parts deal mainly with authoritative and binding sources (Mishnah, Talmud, and the great medieval authorities). There I present the sources and quote and elaborate more extensively (though all this underwent heavy censorship because of the excessive length that flowed from my keyboard). By contrast, in the final part (mainly in the summary), I scarcely quote the sources, because to the best of my understanding they do not carry much significance from the standpoint of authority. When a sage, especially among the later authorities (Acharonim), says something on the basis of his own reasoning, I can do the same. Therefore those matters are brought only to display part of the range of possibilities and precedents. In the second and third parts I make extensive use of Rabbi Neria Gutel’s book on changes in nature in Jewish law. In the final chapter there, and especially in the notes, many sources are brought on this subject, which is broader than the sea, and the quantity of arguments and distinctions in it is nearly endless.

I should note that despite the broad presentation of possibilities in his book, Rabbi Gutel’s basic approach is very conservative, and characteristically, after showing that almost anything can be done, he writes stern warnings not to make any use of it except under conditions that will not be realized in our day or in the foreseeable future.

A. Sources and Basic Principles

Introduction

In this section I will survey the basic principles of the topic. Among the Talmudic passages I will deal mainly with the passage in Beitzah and the passage in Avodah Zarah, which are the two principal sugyot. There are several additional passages in which the discussion arises incidentally, and I will not address them here.

A matter enacted by formal vote regarding the prohibition of the egg on Rosh HaShanah

In Beitzah 5a-b the law of the egg on the two festival days of Rosh HaShanah is discussed. The law of the egg depends on whether the two days possess a single holiness or two separate holinesses. The question whether the two days of Rosh HaShanah have one holiness or two changed over the course of history.

According to the original law, the problem does not arise, for witnesses were accepted throughout the day, even from the time of the afternoon offering onward. Therefore the day on which the witnesses arrived is the festival, and the second day is an ordinary weekday. In such a situation the egg is permitted, as on any ordinary festival.
Once it happened that the witnesses delayed in coming and the Levites erred in the song, and then the sages of that generation enacted that witnesses would not be accepted after the afternoon offering; if they had not come by then, they would observe two festival days with a single holiness. In such a situation the egg is prohibited.
At the next stage, the Temple was destroyed and the reason for the enactment lapsed, and then Rabban Yoḥanan ben Zakkai repealed the enactment and restored the law that witnesses are accepted throughout the day.
Now the question arose: what is the status of the egg? On this the Amoraim disputed:

Rabba said: From the enactment of Rabban Yoḥanan ben Zakkai onward, the egg is permitted. For we learned: When the Temple was destroyed, Rabban Yoḥanan ben Zakkai enacted that testimony concerning the new moon be accepted throughout the day.

And Rav Yosef said: Even from the enactment of Rabban Yoḥanan ben Zakkai onward, the egg remains prohibited. What is the reason? It is a matter enacted by formal vote, and any matter enacted by formal vote requires another formal vote to permit it.

Here appears the principle that if something was prohibited by formal vote (that is, by a religious court), it cannot be permitted without another formal vote convened for that purpose.

At the end of the passage there appears a discussion of the relation between the question of testimony and the question of the egg:

And if you say: Rabban Yoḥanan ben Zakkai also took a formal vote regarding the egg and permitted it—when they voted, they voted regarding testimony; regarding the egg, they did not vote. Abaye said to him: Was the egg ever established by formal vote? The matter of the egg depends on the testimony: when testimony was prohibited, the egg was prohibited; when testimony was permitted, the egg was permitted.

That is, the court of Rabban Yoḥanan ben Zakkai took a formal vote regarding the testimony, but they did not permit the egg. If there was no formal vote permitting the earlier enactment or decree, then the prohibition remained in force even if its rationale had lapsed. And even according to the view that Rabban Yoḥanan ben Zakkai did permit the egg, that is because they voted on the egg as well and not only on the testimony.

And Abaye there holds:

Abaye said to him: Was the egg ever established by formal vote? The matter of the egg depends on the testimony: when testimony was prohibited, the egg was prohibited; when testimony was permitted, the egg was permitted.

That is, the egg was not prohibited by a special formal vote, but only incidentally as a consequence of the testimony issue, and therefore it also does not require a separate permission.

In the final analysis, we see here that if something was prohibited by formal vote, another formal vote is required to permit it. One may discuss the status of something whose prohibition is merely a consequence of another decree—whether a special formal vote is required in order to permit it or not—but this is not the place.

The source and scope of the rule of a matter enacted by formal vote

Rav Yosef himself seeks a source here for this principle:

Rav Yosef said: From where do I say this?

And Rashi explains:

From where do I say this?—that anything prohibited by formal vote requires another formal vote to permit it, even if some change has occurred that would let you rule it permitted and say that the enactment of the first vote no longer stands, as here—even so it remains prohibited until they explicitly permit it in an assembly of sages.

That is, according to Rashi, the discussion in our passage concerns only a situation in which the circumstances of the original enactment have changed and there is room to permit it. The question is: from where do we know that another formal vote is required to permit it, and that the prohibition does not lapse on its own without such a vote?

It follows that if the circumstances have not changed, all agree that without another formal vote the enactment cannot be repealed. Furthermore, it may be that even if there were another formal vote, they still could not repeal it so long as its rationale remains in force, unless they are greater in wisdom and number. See below.

It seems that the basis of the matter is that changing an enactment when the circumstances have not changed amounts to a dispute with the court that enacted it, and therefore the later court must be greater in wisdom and number. But changing it when the circumstances have changed does not involve disputing the earlier enactors; it involves adapting their law to a new reality. Here there is no dispute with the enacting court, and therefore only formal authority is required—that there be an authorized court, and no more.

The Talmud now brings a source for this principle:

As it is written: 'Go, tell them: Return to your tents,' and it says: 'When the ram's horn sounds long, they may go up on the mountain.'

And we learned: The produce of a fourth-year vineyard had to be brought up to Jerusalem from within a day's journey on every side, and this was its boundary: Eilat on the south, Akrabat on the north, Lod on the west, and the Jordan on the east. And Ulla, or some say Rabbah bar bar Ḥanah, said in the name of Rabbi Yoḥanan: What is the reason? In order to adorn the markets of Jerusalem with fruit. And it was taught: Rabbi Eliezer had a fourth-year vineyard east of Lod, near the village of Tavi, and he sought to declare it ownerless for the poor. His students said to him: Rabbi! Your colleagues have already taken a formal vote concerning this and permitted it. And who were your colleagues? Rabban Yoḥanan ben Zakkai. The reason is that they voted; had they not voted, it would not have been permitted.

The second passage is merely an additional example of the rule of a matter enacted by formal vote. In the first passage several scriptural sources for this rule appear, and the Talmud now explains them and the need for each of them:

What is the meaning of 'and it says'?—This is what it means: Since it is written, 'Be ready for the third day; do not approach a woman,' why do I need 'Go tell them: Return to your tents'? Learn from this that any matter enacted by formal vote requires another formal vote to permit it. And if you say that this came only for the commandment of conjugal relations, come and hear: 'When the ram's horn sounds long, they may go up on the mountain.' Since it is written, 'Also let not the flocks and herds graze facing that mountain,' why do I need 'When the ram's horn sounds long'? Learn from this that a matter enacted by formal vote requires another formal vote to permit it.

The first source is the prohibition of approaching one’s wife for three days; from the fact that a special permission was needed we see that a formal vote is needed to permit it. And if one says that the permission was needed only in order to command the marital obligation (as Rashi explains there), another verse is brought that permits the animals to return to graze on the mountain, and from this they derive the rule of a matter enacted by formal vote.

Is this rule stated only with regard to Torah-level laws? Or perhaps only with regard to rabbinic laws? On that the Talmud says immediately afterward:

And if you say: this applies only to Torah-level law, but not to rabbinic law—come and hear: the fourth-year vineyard.

We see that this rule applies both to Torah-level laws and to rabbinic laws. That is what the baraita about the markets of Jerusalem comes to teach. Moreover, we see here that this principle is more obvious regarding Torah-level laws than regarding rabbinic laws, even though in practice it applies to both categories.

What is the difference between Torah-level laws and rabbinic laws? Torah-level laws are the sages’ interpretation of the Torah (through interpretive methods or midrash). Rabbinic laws are the product of legislation. Therefore there would be room to distinguish between the two: in interpretation, one may not dispute the interpretation of earlier sages, but legislation lapses on its own when its rationale lapses. Yet on logical grounds the opposite would seem true: in interpretation, if I interpret differently then the previous interpretation was never correct, and so I am not repealing any law but merely clarifying that it was never valid. Therefore there is no obstacle to disputing earlier interpreters even without a formal vote. But to go against earlier legislation is to change the law, and therefore it requires another formal vote to alter what the earlier formal vote established. Below we shall see that Maimonides indeed makes the distinction in this direction.

And indeed Rashi here explains:

These words apply to Torah-level law—for in a prohibition that issued from the mouth of the Almighty we needed to hear permission from His mouth; but in a rabbinic vote we do not require explicit permission, only something implied.

It follows that the term Torah-level here does not mean Torah-level as opposed to rabbinic, but rather the Holy One as opposed to sages, that is, human beings.

But one should note that here the Holy One is engaged in legislation, not interpretation. That is, what He does for Torah-level laws is what sages do for rabbinic laws. Therefore one can say that the initial assumption was that only legislation requires another formal vote to permit it; but legislation by sages—because the authority of sages is less than that of the Holy One—or their interpretation—because a dispute in interpretation does not require a formal vote, or superiority in wisdom and number—does not require another formal vote to permit it. The conclusion is that all such matters require the status of a matter enacted by formal vote.

We should further note that at face value the Talmudic passage implies that the rule of a matter enacted by formal vote is itself a Torah law, even when it deals with rabbinic laws. It has a source in the Torah, and there is no hint here that this is merely an asmachta.

A court greater in wisdom and number: the relation to the Avodah Zarah passage

In the Beitzah passage it is not mentioned what sort of formal vote is required in order to permit a matter enacted by formal vote. Must it be only a court greater in wisdom and number, or any authorized court? Yet in Mishnah Eduyot 1:5 we find:

And why are the words of the individual mentioned among the majority, since the Jewish law follows only the majority? So that if a court sees the words of the individual and relies on him—for no court can repeal the words of another court unless it is greater than it in wisdom and number. If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot repeal its words unless it is greater than it in wisdom and number.

What it means to be greater in wisdom is clear enough. But it is not clear what it means to be greater in number. Some explained that it refers to the number of sages sitting in the court (together with the students, since the court itself is always seventy elders), or the number of sages of the generation who agreed, or the age of the head of the court. See Encyclopedia Talmudit, vol. 6, p. 700 and onward.

Now, in Rashi on the Beitzah passage, on the first source, he writes:

Learn from this: since the Holy One, blessed be He, prohibited it, He Himself must explicitly permit it; and the same applies to any matter enacted by formal vote.

It seems from here that Rashi wishes to teach that authority similar to that which prohibited is required—in this case, the Holy One Himself. But the question of superior standing is not discussed in our passage, only in the Avodah Zarah passage. The Mishnah in Avodah Zarah 35b states:

Mishnah: And these are things of gentiles that are prohibited, but their prohibition is not one of benefit: milk milked by a gentile when no Jew watches him, and their bread and their oil. Rabbi and his court permitted the oil.

That is, oil was at first prohibited for eating but not for benefit, and Rabbi and his court permitted it.

And the Talmud there, at the end of 35b:

And their oil. Rav said: Daniel decreed against it, and Samuel said: the residue of impure vessels renders it forbidden. What, is everyone eating foods in purity? Rather, the residue of forbidden vessels renders it forbidden.

There is a dispute here whether the prohibition stems from an enactment of Daniel, or whether we are dealing with oil absorbed in prohibited vessels (and Rashi explains: the exuded residue of prohibited fat that they had absorbed).

Samuel now objects to Rav:

He said to him: According to me, who say that the residue of forbidden vessels renders it forbidden, this explains why when Rav Yitzḥak bar Shmuel bar Marta came and said, Rabbi Simlai expounded in Nezivin: As for oil, Rabbi Yehudah and his court took a formal vote regarding it and permitted it, holding that an imparted defective taste is permitted. But according to you, who say that Daniel decreed against it, did Daniel decree and then Rabbi Yehudah ha-Nasi come and repeal it? But did we not learn: A court cannot repeal the words of another court unless it is greater than it in wisdom and number!

The question is that if Daniel enacted the prohibition, how could Rabbi come and repeal it? Do we not require a court greater in wisdom and number? One should note that here too the repealing court had a formal vote, and the objection is only that it was not greater in wisdom and number than the enacting court. Thus this passage does not deal with the necessity of a formal vote as such, as in Beitzah, but with the question of what kind of formal vote is required.

It should further be noted that according to Samuel himself, who says this was a matter of oil absorbed in prohibited vessels, there was no difficulty as to how Rabbi disagreed. Why not? On the face of it, because this did not involve a court greater than Rabbi’s court, since it was not Daniel. But more simply, because when there is a halakhic dispute—whether an imparted defective taste is prohibited or permitted—there is no question of superiority in wisdom and number. Only with enactments is there a requirement that the later court be greater in wisdom and number, as Maimonides holds, as we shall see below.

The Talmud now answers:

He said to him: You are citing Simlai of Lod? The people of Lod are different, for they treat such matters lightly. He said to him: I will send to him; he was embarrassed.

And Rashi explains:

The people of Lod—they treat rabbinic matters lightly.

That is, Rabbi Simlai of Lod treated rabbinic matters lightly, and therefore he held that Rabbi had repealed Daniel’s enactment.

This is hard to understand literally, for Rabbi Simlai based himself on Rabbi and his court. It seems, therefore, that the meaning is that Rabbi Simlai treated the words of the sages lightly in the sense that he held one may repeal the words of an earlier court even if one is not greater than it in wisdom and number. In other words, this was not contempt but a halakhic position. Those who disagreed with him characterized it as contempt for the sages’ words. In truth, Rabbi Simlai treats a rabbinic enactment as though it were like Torah law—and no more than that—and this is what Rav rejects.[1]

In any event, it is not clear in the Talmud what Rav answered Samuel. It seems that he really did send this to Rabbi, and Rabbi was embarrassed; that is, he did not know that this was the interpretation of the verse in Daniel, or that enactments may not be repealed by a lesser court. See Rashi and Rabbenu Ḥananel there, from whom it appears that Rabbi really has no answer, and as a matter of law this apparently is not repealed.

And immediately we shall see that Rav himself, regarding scriptural interpretation, allows himself to interpret differently from Rabbi:

Rav said: If they did not expound it, shall we not expound it? Is it not written: 'Daniel resolved in his heart that he would not defile himself with the king's food and with the wine of his feasts'? Scripture speaks of two feasts, one a feast of wine and one a feast of oil. Rav holds: he set it upon his heart and instructed all Israel accordingly; and Samuel holds: he set it upon his heart, but did not instruct all Israel accordingly.

That is, Rav allowed himself to interpret differently from Rabbi, and therefore objected to Samuel from his own exegesis. Again we see that interpretation is different from legislation. True, here we are not dealing with Torah law but with the books of the prophets, yet it is interpretation of scriptural text, and therefore changing it does not require superiority of the altering court. Only legislation requires a difference in standing between the courts. The distinction, then, is not between Torah law and rabbinic law, but between legislation and interpretation.

Interim summary: the relation between the Beitzah and Avodah Zarah passages

In the Avodah Zarah passage, the discussion concerns what sort of court is required in order to repeal the words of another court. There the issue is a court greater in wisdom and number, and so forth. In the Beitzah passage, none of this is mentioned. At first glance, the two passages contradict one another.

This can easily be resolved if one notices that in the Beitzah passage we are dealing with a decree whose rationale has lapsed, whereas in Avodah Zarah the discussion concerns the repeal of decrees in general, even where their rationale has not lapsed. Hence a simple possibility emerges for resolving the contradiction: repealing an enactment whose rationale has lapsed does not require a court greater in wisdom and number, but only some formal vote. By contrast, repealing an enactment whose rationale has not lapsed requires a court greater in wisdom and number.

And this is indeed what we find in the Ritva, as cited in Shitah Mekubbetzet on Beitzah there:

When they took the vote, it was regarding testimony; regarding the egg, they did not vote. And if you ask: from here it seems that had they voted regarding the egg it would have been permitted, but we hold that no court can repeal the words of another court unless it is greater than it in wisdom and number. One may say that here it is different, because the reason had lapsed, and according to strict law it ought to lapse on its own; only Scripture required judicial permission. Therefore any significant court suffices, even though it is not greater than the first, because this is not regarded as a repeal, as they said regarding the fourth-year vineyard of Rabbi Eliezer.

He infers that a formal vote would have sufficed to permit the egg. He then asks how that could suffice, given that there is a requirement to be greater in wisdom and number. His answer is that when the rationale has lapsed, one does not need to be greater in wisdom and number.

And so too in the Meiri on Beitzah 5a:

Any matter that was prohibited by formal vote, that is, by an assembly of sages convened about that matter, even though the reason because of which they prohibited it has already passed and common sense estimates that they themselves would not prohibit it now, even so it cannot be permitted except by another formal vote, whether equal to the first or inferior to it. But if a matter was prohibited by formal vote and the reason because of which it was prohibited has not passed, and now they wish to repeal it, they cannot repeal it unless they are greater than that assembly that prohibited it in wisdom and number.

However, their words stand in opposition to Maimonides’ position in Mishneh Torah, Hilkhot Mamrim 2:1-2:

1. If a great court interpreted one of the hermeneutical principles according to what seemed right in its eyes, and ruled accordingly, and another court arose after it and saw another reason to overturn that ruling, it may overturn it and rule according to what seems right in its eyes, as it is said: 'to the judge who shall be in those days'—you are obligated to follow only the court of your own days.

2. If a court decreed a decree or enacted an enactment or established a custom, and the matter spread throughout all Israel, and another court arose after it and sought to repeal the earlier rulings and uproot that enactment or decree or custom, it cannot do so unless it is greater than the first in wisdom and number. If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot repeal its ruling. Even if the reason for which the first court decreed or enacted has lapsed, the later court cannot repeal it unless it is greater than the first. And how can it be greater in number, since every court is seventy-one? This refers to the number of the sages of the generation who agreed to and accepted the matter stated by the Great Court and did not dissent from it.

It follows from Maimonides that even if the rationale of the enactment has lapsed, in order to repeal it one still requires a court greater in wisdom and number, unlike the Ritva and the Meiri cited above.

And indeed the Raavad there objects to him:

/Raavad's gloss/ 'greater in wisdom' etc. I say: the adorning of Jerusalem’s markets with fruit is a difficulty against him, for the first sages enacted it and Rabbi Yoḥanan ben Zakkai repealed it after the destruction because the reason of the first sages had lapsed, and he was not greater than the first sages.

He agrees with the Ritva that if the rationale of the enactment has lapsed, it may be repealed by any formal vote; one need not be greater than the first court.

It seems that Maimonides understands the passages in Beitzah and Avodah Zarah as complementing one another: one deals with the need for a formal vote, and the other with the question of which kind of formal vote. The Ritva, by contrast, holds that the passages deal with different subjects: the Beitzah passage deals with an enactment whose rationale has lapsed, and the Avodah Zarah passage deals with an enactment whose rationale has not lapsed.

Above we explained the logic of the distinction in the Ritva’s approach: when the rationale has lapsed, the later court is not disputing the earlier one, and therefore need not be greater than it. Maimonides, apparently, sees this requirement as a special stringency designed to fortify the standing of a religious court, and not as an essential rule.

And indeed one sees from the wording of Maimonides cited here that he distinguishes between Torah-level laws and rabbinic laws: for Torah-level laws one does not need a greater court in order to alter them, but for rabbinic laws one does. This fits his view that the rule is not essential but rather a matter of reinforcing the status of the sages. From the standpoint of the essential law, one would have required a greater court even for Torah-level laws, since in the end the later sages are disagreeing with the earlier ones.

Who counts as a greater court? Catch-22

The Raavad, in the objection cited above, challenges Maimonides from the ornamenting of Jerusalem’s markets with fruit: the earlier sages enacted it, and when the rationale lapsed Rabban Yoḥanan ben Zakkai repealed it. From this he proves that when the rationale has lapsed one does not need a court greater in wisdom and number. What would Maimonides answer to this?

To understand this, one must notice that at first glance the Raavad’s approach is a trap. There is a rule that a greater court may repeal the words of an earlier court. If we assume that every later court is by definition smaller than its predecessors, then this law is empty of content. There will never be a case in which a later court is greater. The assumption that the decline of the generations is a sweeping principle turns the rule of repealing enactments into a dead letter in Jewish law. If such a law exists, then perforce it is not correct to assume that a later court is always smaller than its predecessors. It is possible for a later court to be greater.

Now we can understand that this itself is what Maimonides would answer to the Raavad’s difficulty. He would simply say that Rabban Yoḥanan ben Zakkai was greater than his predecessors (I later saw that Kesef Mishneh says this there, and so too the Hatam Sofer on Beitzah 5a). The Raavad assumes in his objection that Rabban Yoḥanan ben Zakkai was smaller than his predecessors, but what is the basis for that assumption? If he assumes that a later sage is necessarily smaller than an earlier one, then the whole question of repealing enactments becomes a dead letter. Therefore he is driven to say that when the rationale has lapsed there is no need for a greater court, and only then can enactments be repealed. Yet it follows that where an enactment’s rationale has not lapsed there is no possibility of repealing it at all, because a greater court is required, but a later court is always smaller. On his view, the law of repealing enactments applies only to enactments whose rationale has lapsed. But then the principle of superiority in wisdom and number is only hypothetical. This is what Maimonides does not accept.

It follows that Maimonides’ stringency is his leniency. On the one hand, he is stringent in requiring a court greater in wisdom and number even when the rationale has lapsed; but from this follows his leniency: there are situations in which such repeal is possible even when the rationale has not lapsed, when a court of our time is greater than its predecessors.

Torah-level laws and rabbinic laws

We have seen that Maimonides understands the requirement for a greater court as applying only to the repeal of rabbinic enactments. In Torah law a formal vote is required (as appears from his wording in the first halakhah), but it need not be greater in wisdom.

What is the root of this difference? At first glance, repeal belongs only to enactments and not to interpretive expositions of Torah law, because interpretation did not establish anything that is now being repealed. It only asserted that this is what the Torah means. So if a later court thinks that this is not the Torah’s intent, it is not repealing anything. True, it disagrees with the earlier court about the understanding of Torah law, but it is not repealing a formal act of court.

The practical implication is that a formal vote is indeed required (not necessarily a greater one), but only where there is such a formal vote. In a generation without a religious court, it may be that the sages of the generation count as the relevant formal body. The reason is that there is no repeal here of a formal act of court; rather, this is only interpretation of the Torah. To interpret the Torah does not require formal authority, only assurance that this is indeed what the Torah means.

Furthermore, what is the law in Torah-level rules—products of interpretation and exegesis—when the rationale lapses? It seems that regarding Torah-level rules this question does not arise at all (not for nothing does Maimonides omit, in the first halakhah, the case where the rationale has lapsed). If the rationale has changed, then the Torah law lapses on its own, for the Torah itself did not intend to require this of us. The lapse of a rationale is relevant only to rabbinic enactments. For example, on the straightforward view, the laws of fatal defects in animals were determined by the sages as an assessment of situations in which death is expected within twelve months (Maimonides is exceptional on this point). What happens if scientific knowledge or technological means in our day reveal to us that this is not a correct assessment? It seems that in such a case there is no obstacle to changing the law, for this is a factual assessment. If a given animal is not going to die within twelve months, then it is not the fatally defective animal of which the Torah spoke. No law has been repealed here, and therefore superiority in wisdom and number is not required; perhaps no formal vote is required at all in order to change it.

The Hazon Ish did innovate the notion that the two thousand years of Torah establish laws even when their rationale has lapsed. But this is an implausible innovation and has no source.

The relation to deriving law from the reason of the verse

This raises the question of deriving law from the reason of the verse. There is an interesting parallel between repealing enactments whose rationale has lapsed and deriving law from the reason of the verse. In both cases we make a purposive interpretation of a given law and draw practical conclusions from it, meaning that we alter it. In Torah law, one generally does not derive law from the reason of the verse, and in rabbinic law one does not repeal enactments even when their rationale has lapsed, unless there is a greater court.

One might have said that in Torah law one cannot change the law even if its rationale has lapsed, because that would amount to deriving law from the reason of the verse. But that is not plausible, for the categories of fatal defects are not the law itself. The law is that an animal that is expected to die within twelve months is forbidden. That is, the Torah did not establish a law whose rationale we are now expounding; it established a general law, and we determine its boundaries. We have no idea why such animals are forbidden for eating, and therefore there is no deriving law from the reason of the verse here. This is the determination of a legal boundary, not a rationale, and that is certainly done even in Torah law.

In similar cases it is reasonable to do the same with rabbinic enactments. There are enactments in which the essence of the law is the rationale and not the enactment itself. For example, the three-month waiting period. Was the enactment to wait three months, with the rationale being to distinguish between the seed of the first husband and that of the second? Or was the enactment to distinguish between the seed of the first husband and that of the second, with the implementation—that is, the boundary—being to wait three months? The second possibility allows us to change this today even without a formal vote and without superior standing, because in that case it is not a change at all.

It should further be noted from Tosafot ha-Rosh on Bava Metzia 90 that where the rationale is self-evident, one does derive law from the reason of the verse and draw halakhic conclusions from it. If so, in rabbinic enactments as well there is room to say that where the rationale is self-evident, there is room to derive law from the rationale and alter conduct in accordance with the circumstances and the lapse of the rationale.

I later saw that the Rosh himself writes this explicitly in a responsum, kelal 2, sec. 8:

For this is not comparable to a matter prohibited by formal vote, which has no permission except through a court greater than it in wisdom and number, because once the reason for the prohibition is known, if the reason is nullified the prohibition is automatically nullified…

And likewise it is stated in Semak, in the glosses of Rabbi Peretz at the end of sec. 223, cited in Beit Yosef, Yoreh De'ah sec. 115, s.v. 'Gevinot'.

However, in the responsa Torat Chesed, Orah Hayyim sec. 17, he discusses this whole matter at length, and there in subsec. 6 he writes that we do not possess the power that the early authorities had to determine when the rationale of an enactment is obvious. Rabbi Shaul Yisraeli wrote similarly in Amud HaYemini, sec. 23, subsec. 4. I, however, do not understand why.

Two Tosafot in the Avodah Zarah passage: acceptance throughout the Jewish people, and the uniqueness of the Decree of the Eighteen Matters

The continuation of the passage in Avodah Zarah raises several more important points that I will only note: (a) the decrees of the Eighteen Matters are exceptional and cannot be repealed in any way; (b) the requirement and meaning of an enactment’s spreading throughout the Jewish people (from the Talmud it appears that this is a requirement only for the enactment’s validity as such, and not for the ability to repeal it).

Regarding the first point, there is room only for an important methodological remark: who was it that enacted that the decree of the Eighteen Matters cannot be repealed? The Talmud says this is because its prohibition spread throughout the Jewish people. On the other hand, we have already mentioned that this spreading is presented in the Talmud as a condition for the enactment’s validity itself, and not for the ability to repeal it. Therefore it seems that the spreading is only the rationale for the rule—why they determined that one may not dispute the Eighteen Matters—and not its basis, meaning the authority to establish such a rule. So on what is the rule itself based? It may be that this is the result of an assessment that the schools of Hillel and Shammai are greater than anyone who will come after them (though that sounds like prophecy, and it requires further clarification how such an assumption can be made). Or perhaps it is the acceptance of the whole Jewish people, which has eternal force. Yet even that acceptance could in principle be revoked by the Jewish people. More likely, this is itself a special enactment—but then it would seem that it too could be repealed, in accordance with the rules governing repeal of enactments.

This remark is important, because a similar mechanism arises regarding the repeal of enactments generally. Can a court of our own day repeal one of the rules governing the repeal of enactments? Here one should mention Rav Kook’s words in his book LeNevukhei HaDor, where he notes that a court can repeal the rule that one does not derive law from the reason of the verse, and then proceed to derive law from the reason of the verse. Below we shall see that repealing an enactment when its rationale has lapsed is very similar to deriving law from the reason of the verse.

Regarding the second point, it seems that the medieval authorities disputed whether an enactment’s widespread acceptance prevents the possibility of repeal, or only makes repeal more difficult. In Tosafot, s.v. 'Ve-haTnan,' on Avodah Zarah there, they ask regarding the prosbul:

And did we not learn, 'A court cannot…'—this is puzzling, for in chapter HaShole'aḥ (Gittin 36b, and there s.v. 'Ela') regarding the prosbul, Samuel said: 'This prosbul is an insult to the judges; if I had the power I would repeal it,' and the conclusion there is: 'if I had greater power than Hillel.' What are the circumstances? If the enactment of prosbul spread, then even if he were greater he could not repeal it. And if it did not spread, then why would he need 'if I had the power'? Rabbi Yehudah Nesi'ah permitted oil even though he was smaller, for the very reason that its prohibition had not spread.

The difficulty is that there is no kind of enactment whose repeal requires a court greater in wisdom and number. Tosafot answer:

One may say that here too he did not permit it solely because it had not spread, unless there was also the reason that the majority of the public could not endure it. But with the prosbul, even though it had not spread, the majority of the public could endure it.

Tosafot innovates that the Talmud there in Avodah Zarah presents two different criteria: (1) that it spread throughout the Jewish people; (2) that the public can endure it. When neither of these conditions is met, then one may repeal it, even by a lesser court. But the prosbul had not spread, and yet the public could endure it. In such a situation it cannot be repealed except by a greater court. And if both conditions are met, it cannot be repealed by any court at all; that is the case with the enactments of the Eighteen Matters.

Afterward Tosafot reject this possibility:

Nevertheless, it remains difficult, for it is astonishing: how could it not have spread, given that it is to the advantage of lenders?

They now offer another explanation:

Therefore it seems that the prosbul certainly did spread. And if you ask: even if he were greater, how could he repeal it? Certainly this was said only regarding the Eighteen Matters: even if Elijah comes and says otherwise, we do not listen—as is explained in the Jerusalem Talmud, the reason being that they stood their ground at risk to their lives. So Rabbi Elḥanan inferred from the wording of the texts found in old books, which read: 'Did not Rav Mesharshia say: what is the reason…' implying that the answer begins there. And this is the explanation of our sugya: How was Rabbi Yehudah Nesi'ah strong enough to permit it? Did we not learn that no court can repeal another court—and further, even if he were greater, he cannot repeal the Eighteen Matters? The Talmud did not need to spell out the reason, because it is obvious. It answers: Did not Rav Mesharshia say, 'What is the reason? Because it spread'; therefore even a greater court cannot repeal it. But oil did not spread; therefore, even though they stood their ground at risk to their lives, a lesser court can repeal it. And they relied on the words of Rabban Shimon ben Gamliel that one does not decree a matter unless most of the public can endure it. Therefore it was permitted even by a lesser court. But certainly in other matters, even if they spread, a greater court can repeal them. Therefore, regarding the prosbul, Samuel said that if he had greater power than Hillel he would repeal it, even though it had spread. And here is the Jerusalem Talmud in the first chapter of Shabbat: Rabbi Bun said in the name of Rav Yehudah in the name of Samuel: This was stated only outside the Eighteen Matters, but with the Eighteen Matters even a greater court does not repeal them, because they stood their ground at risk to their lives—that is, because they planted a sword in the study hall.

That is, the decree of the Eighteen Matters lies outside the ordinary framework of the laws governing repeal of enactments, and it cannot be repealed in any way—at least those parts of it that spread, excluding oil and the like. But ordinary enactments may be repealed even if they spread; only then a court greater in wisdom and number is required. And when the rationale has changed, then apparently any court suffices, as we saw in the Meiri and Ritva on the Beitzah passage. And even if it did not spread, it seems that a lesser court suffices, or perhaps no court is required at all.

It seems that Maimonides and the Raavad in Hilkhot Mamrim 2:2 also disagree along the lines of the dispute between these two answers of Tosafot:

If a court decreed a decree or enacted an enactment or established a custom, and the matter spread throughout all Israel, and another court arose after it and sought to repeal the earlier rulings and uproot that enactment or decree or custom, it cannot do so unless it is greater than the first in wisdom and number. If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot repeal its ruling. Even if the reason for which the first court decreed or enacted has lapsed, the later court cannot repeal it unless it is greater than the first. And how can it be greater in number, since every court is seventy-one? This refers to the number of the sages of the generation who agreed to and accepted the matter stated by the Great Court and did not dissent from it.

/Raavad's gloss/ A court that decreed a decree etc., until 'unless it is greater than the first in wisdom and number.' I say: not even Elijah and his court could repeal it once its prohibition spread throughout all Israel, as stated in Avodah Zarah.

Maimonides holds that widespread acceptance does not prevent repeal, whereas the Raavad holds that once it has spread, repeal is impossible altogether. That is, Maimonides adopts Tosafot’s second answer.

B. Authoritative precedents and reasonings

Appearing ridiculous, desecration of God’s name, and harm

In our day, because of the multiplication of cases in which laws appear ridiculous, the rule that one may not repeal earlier enactments and decrees creates a situation of desecration of God’s name. For example, strictness regarding legumes on Passover—which are not even an enactment or a decree but merely a concern—is a terrible desecration of God’s name. When many more irrelevant decrees and enactments are added to this, Jewish law as a whole becomes irrelevant and turns into a laughingstock in the eyes of the world. In such situations, is there an additional ground for repealing the rule?

It seems there is room to distinguish between two situations in which a court comes to repeal an enactment: (a) it sees that there is no reason for its continued existence—the rationale has lapsed, or from the outset the rationale was incorrect; (b) it sees that its continued existence is harmful. In the first case it can repeal the enactment in accordance with the ordinary rules of repeal. But in the second case it is not repealing the enactment; rather, it is enacting a new enactment on top of it, one that forbids carrying it out. Here there is no dispute with the earlier court, but an enactment superimposed upon it.

It is important to understand that the discussion here is only according to Maimonides. According to the Raavad, in such a situation there is no obstacle to repealing the earlier enactment, since when the rationale has lapsed any court may repeal it. But according to Maimonides a court greater in wisdom and number is required, and then there is room to distinguish between a case where the rationale has lapsed—and then there is no reason to maintain the enactment—and a case where the enactment is causing harm—and then there is a positive reason not to maintain it.

The rationale is that just as any court can enact a measure that is, at least through passive omission, apparently contrary to the Torah, rabbinic law cannot be more binding than Torah law. If a court finds it necessary, it can enact that the earlier enactment not be observed. Here it does not repeal the earlier enactment but enacts a new one that prevents implementation of the earlier enactment, as noted. Logically, it seems that even according to Maimonides this would not require that the repealing court be greater in wisdom and number, but it would require that it possess authority to enact measures for its own generation, since the repeal is itself an enactment.

And indeed, several decisors wrote that when continued observance of an enactment causes harm, it should be repealed. For example, Maharshal in Yam Shel Shlomo, Bava Kamma, chap. 7, regarding the enactments of Joshua, explains that an unattended corpse does not acquire its place and should be taken to the cemetery and buried there, lest gentiles strip it and treat it with contempt. True, he is speaking of a situation where the rationale of the enactment itself requires its modification, and not of mere collateral harm. So too wrote Yaavetz in Leḥem Shamayim on Ma'aser Sheni 5:2 (see Rabbi Gutel, notes 554-555).

And indeed we find this explicitly in Maimonides, Mamrim 2:4:

A court has authority to uproot even these matters temporarily, even though it is smaller than the earlier ones, lest these decrees be more stringent than the Torah itself. For even Torah law any court may uproot temporarily as an emergency ruling. How so? If a court sees a need to strengthen religion and make a fence so that the people not transgress Torah law, it may flog and punish contrary to the ordinary law. But they do not establish the matter for generations and say that this is the law. Likewise, if they see a temporary need to suspend a positive commandment or to violate a prohibition in order to restore many to the faith or save many in Israel from stumbling in other matters, they act according to what the hour requires. Just as a physician amputates this person's hand or leg so that his whole body may live, so too a court instructs at particular times to violate some commandments temporarily so that all of them may ultimately be observed, in the manner the early sages said: 'Desecrate one Sabbath for him so that he may keep many Sabbaths.'

At first glance his words are puzzling, for his own view in the previous halakhah is that the words of the sages are more stringent than Torah law, since rabbinic enactments may be uprooted only by a court greater in wisdom and number. So what room is there for this a fortiori argument?

Necessarily, his intent is as we have suggested: repeal of an enactment is a special mechanism, since we are uprooting a law. That requires a court greater in wisdom and number. But if one wishes to enact the uprooting of these matters temporarily, this is no worse than Torah law itself, where even that can be done. It is important to understand that in Torah law, the uprooting is certainly not because the sages disagree with the Torah; rather, the uprooting is an additional enactment that suspends, temporarily or through passive omission, the Torah law. Therefore even with rabbinic enactments there is room to distinguish between repeal and the enactment of an additional measure that uproots, freezes, or suspends the earlier one.

And this is indeed what we find there in halakhah 9 regarding Torah prohibitions:

Since a court has authority to decree and forbid a permitted matter, with its prohibition standing for generations, and likewise has authority to permit Torah prohibitions temporarily, what then is this against which the Torah warned, 'You shall not add to it and you shall not subtract from it'? It means not to add to the words of the Torah or subtract from them and establish the matter permanently as Torah law, whether in the Written Torah or the Oral Torah. How so? It is written in the Torah, 'You shall not cook a kid in its mother's milk.' By tradition they learned that this verse prohibits cooking and eating meat with milk, whether the meat of domestic animals or wild animals; but poultry with milk is permitted by Torah law. If a court comes and permits the meat of a wild animal with milk, this subtracts. And if it prohibits poultry with milk and says that it is included in 'kid' and forbidden by Torah law, this adds. But if it says: poultry with milk is permitted by Torah law, yet we will prohibit it and inform the people that it is a decree lest from this matter an obligation arise and they say: poultry is permitted because it was not specified, so too wild animals are permitted since they were not specified; then another will come and say even domestic animal meat is permitted except for goat; another will say even goat meat is permitted with cow's or sheep's milk, since only 'its mother,' meaning its own kind, was said; another will say even goat's milk that is not its mother is permitted, since only 'its mother' was said. Therefore we will prohibit all meat with milk, even poultry. This is not adding but making a fence for the Torah. And so too in every similar case.

/Raavad's gloss/ All this the wind will carry away. Anything that they decreed and prohibited as a fence and safeguard for the Torah does not violate 'do not add,' even if they established it for generations and treated it as if it were Torah law and supported it with a verse, as we find in many places that rabbinic law uses a verse merely as an asmachta. And if they subtract for the need of the hour, as Elijah on Mount Carmel, this too is Torah law, 'It is a time to act for the Lord; they have violated Your Torah.' You will not find a case of forbidden addition except with positive commandments, such as lulav, tefillin, tzitzit and the like, whether temporarily or permanently, whether he established it in a Torah matter or did not establish it.

From here follows a practical consequence: if one enacts that an enactment not be observed, rather than repealing it, that must be temporary (and accompanied by an explicit statement that there is no repeal here but an addition), since the original enactment remains in force. To enact permanent non-observance is in effect a de facto repeal. True, each court in every generation may repeal the enactments anew, so that de facto they are entirely nullified, though formally this still depends on the decision of each court in each generation.

It should further be noted that according to the law, the sages uproot a Torah rule only by passive omission, or by positive action temporarily, as in Elijah on Mount Carmel (see Ran on Nedarim 90b, who says that according to the rules even uprooting by positive action is possible temporarily). Now, in certain cases we find among the early authorities that the sages had authority to uproot a Torah rule even by positive action and permanently. Clearly, such a step is taken in situations of critical need, and one sees that the sages can deviate from the formal rules that allow them to uproot only by passive omission or temporarily. If so, there is room to do the same in our day if the need of the hour demands it.

I will not elaborate on this here, and will only refer to a few relevant sources. See Bava Kamma 117a (ruled by Maimonides, Hilkhot Ḥovel u-Mazzik 8:10) for permission to kill an informer. See also the responsa Tamim De'im of the Raavad, sec. 203, and what he cites there from Rabbi Yitzḥak the Elder. And Rabbi Yitzḥak in Tosafot, s.v. 'MiTokh,' Yevamot 88a, wrote that when the matter is reasonable, one may uproot even by positive action:

And this is not considered uprooting a Torah law, since the matter is reasonably fitting to be believed, as I will explain later in the chapter (89b), for where there is some reason and support, it is not considered uprooting a Torah law.

See also Tosafot, s.v. 'Keivan,' there 89b; Tosafot, s.v. 'Ve-hai,' Nazir 43b; Tosafot, s.v. 'Amar,' Avodah Zarah 13b; Tosafot, s.v. 'Ve-ḥotem,' Berakhot 16a; and Tosafot, s.v. 'Shover,' Bava Metzia 20a.

When the original enactment uprooted Torah law

When the original enactment uproots a Torah law, the repeal by the later court restores the Torah law to its place. In such a situation there is room to treat the second uprooting as placing a time limit on the suspension imposed by the first court. What the sages do is only suspend Torah law temporarily, and in such a case the later court can say that the time has passed and Torah law returns to its place.

Moreover, in such a situation a basic value has been uprooted, for we are not fulfilling a Torah requirement. Therefore minimal conditions are enough for us to restore the Torah obligation to its place. For example, regarding the sounding of the shofar, the reading of the Megillah, and taking the lulav on the Sabbath. All of these are full halakhic obligations that were suspended for side considerations. Is there not room, on logical grounds, to say that restoring them when the original rationale of those enactments has lapsed does not require a court greater in wisdom and number?

In the Beitzah passage there appears the argument that the verse concerns a command regarding the conjugal obligation. But this is puzzling, for the conjugal obligation is itself in the Torah, so why would an additional command be needed for that? Therefore it seems more straightforward that the second command was meant to repeal the earlier enactment. So what is the rebuttal that perhaps it was only because of the conjugal obligation? Perhaps one can explain, contrary to Rashi, that the initial assumption was that because of the conjugal obligation one may repeal the earlier enactment, and without there being any commandment involved, one could not repeal it at all, not even by another formal vote.

That is, even if the rationale of the enactment has lapsed, there is room to say that the enactment cannot be repealed at all, except where the enactment cancels a Torah commandment, as in the sounding of the shofar on Rosh HaShanah that falls on the Sabbath.

This may perhaps explain why the Raavad, in his objection in Hilkhot Mamrim, challenges Maimonides from the fact that Rabban Yoḥanan ben Zakkai repealed the enactment to adorn Jerusalem’s markets with fruit, but did not challenge him from the repeal itself of the enactment concerning the acceptance of witnesses after the afternoon offering. According to our approach, this is very understandable, because the repeal by Rabban Yoḥanan ben Zakkai made it possible to accept witnesses who came after the afternoon offering, and thereby we returned to Torah law. Therefore there it was obvious to the Raavad that even Maimonides would not require a court greater in wisdom and number.

Regarding something made as a fence

Maimonides writes in Mamrim 2:3:

To what do these words apply? To matters they did not prohibit in order to make a fence for the Torah, but rather like the other laws of the Torah. But with matters that a court saw fit to decree and prohibit as a fence, if the prohibition spread throughout all [Israel], no later court, even if greater than the first, can uproot and permit them.

From his words it emerges that if the original enactment was made as a fence for the Torah and its prohibition spread throughout Israel, as with the Eighteen Matters, then it cannot be uprooted in any way. It seems that this is how he understood the Avodah Zarah passage regarding the decree of the Eighteen Matters.

And Hagahot Maimoniyot there wrote that his source is the decree of the Eighteen Matters in the Avodah Zarah passage. That is, Maimonides understands that the decree of the Eighteen Matters was something special, but not because it alone was unique; rather, because it belongs to the special class of decrees enacted as a fence.

Now, one must consider what is not included in the definition of a fence-decree. There are the seven rabbinic commandments (those listed by Nachmanides in his glosses to the first principle, in defense of the Bahag). But beyond that, the egg on the second festival day of Rosh HaShanah or on the second festival day of the Diaspora in our passage is also a decree which, according to Rav Yosef, requires a court greater in wisdom and number in order to permit it. And at first glance this too is a fence, since the reason is lest the matter revert to its former disorder, meaning if the Temple is rebuilt. Perhaps such a case is not called a fence, since there is no immediate concern here but a long-term policy. Beyond that, as we saw in earlier lessons, additional considerations are involved here, such as commemoration of the Temple and the like.

However, a freeze or suspension when the original law causes harm appears possible even here, for this is not uprooting but a second-order enactment whose purpose, too, is to make a fence and preserve the Torah. Then rabbinic law will not be more stringent than Torah law, which can be uprooted, even by positive action, in such cases. This is the a fortiori argument that Maimonides himself makes in halakhah 4, as I cited above.

When the rationale is explicitly mentioned in the wording of the enactment

Some decisors wrote that if there is a rabbinic enactment whose wording explicitly mentions its rationale, there is room there to follow the rationale. For example, reading by candlelight is mentioned in the baraita—though not in the Mishnah—because of the concern lest one tilt the lamp. Therefore some explained that Rabbi Yishmael nevertheless thought he could read by candlelight even though the sages prohibited it. One should note that in the end he does not retract the decision to read as such; he only realizes that his assessment that he would not come to tilt the lamp was mistaken. But in principle, if that assessment had indeed been correct—if he really were certain that he would not come to tilt it—he would indeed have been permitted to read. We see that when the rationale is written explicitly in the formulation of the enactment, it may be interpreted purposively.

The lapse of the rationale when the time limit was fixed in advance

The source brought in the Beitzah passage from 'return to your tents' is very puzzling. After all, from the outset the prohibition lasted only three days, so why was a special permission required after the three days? Here this is not even analogous to a change of circumstances, meaning a lapse of the rationale, but at most to a case where the prohibiting circumstances were defined in the wording of the enactment, as in 'let him not read by candlelight lest he tilt it'.

Rashi in Sanhedrin 59b writes:

For every matter enacted by formal vote—it was not repeated at Sinai except because He prohibited them from marital relations for three days before the giving of the Torah, and after the three days He had to permit them. Even though the permission is implied on its own, since He prohibited only for three days and they had already passed, Scripture nevertheless teaches regarding every matter prohibited by formal vote of a court that even if they fixed a time for the matter, they must take another vote to permit it once the time has passed.

However, Tosafot, s.v. 'Le-khol,' there, wrote:

For every matter enacted by formal vote—Rashi explained that any matter prohibited by formal vote, even if they fixed a time, requires another formal vote to permit it once the time passes.

And then he explained: 'Do not approach a woman' (Exodus 19) had no fixed time in it; and the phrase 'Be ready for the third day' means to receive the Torah on the third day. But a matter explicitly limited to a fixed time becomes permitted on its own when the time passes.

That is, with respect to a fixed time limit, the need for another formal vote is a dispute between the two explanations. But with respect to changed circumstances, where the rationale has lapsed, it is certain that a formal vote is required in order to permit it.

The same point returns in Tosafot, s.v. 'Kol,' in the Beitzah passage:

Any matter enacted by formal vote requires another formal vote to permit it—some wished to say from here that bans imposed for a fixed time, until Passover or until another time, when the time arrives require another vote to permit the ban even though the time has passed, since here the Holy One prohibited them from marital relations for the giving of the Torah, and we know automatically that after three days, once the Torah was given, they would be permitted, yet He still permitted them explicitly.

But that is not so. Here there is no time mentioned at all. The verse 'Be ready for the third day' means: prepare yourselves for the event that will occur at the end of three days. Had it said 'be ready three days' without the preposition 'for the third day,' I would indeed have proven properly that just as marital relations required permission, so too a ban would require permission. But since it does not say that, learn from this that marital relations required explicit permission because it says 'Do not approach a woman,' which implies indefinitely, just as He prohibited them for the three days before the giving of the Torah. But bans imposed for a fixed time, once the time passes they automatically lapse and need no permission.

Here too Tosafot conclude that a prohibition limited to a fixed time becomes permitted on its own once the time has passed. The ban of Rabbenu Gershom was enacted for a thousand years. And indeed, when the time arrived there was debate as to whether it lapsed on its own or not. In practice it was decided that it continues if no one formally voted to permit it. The simple explanation is that Rabbenu Gershom made it time-limited only in order to allow a future court to reexamine the situation, not as an essential time limit. That is different from the three days at Sinai.

And the Meiri on Beitzah wrote as follows:

Some of the Geonim rule likewise regarding communal agreements, bans, and oaths, that even if they specify a year or two years, since they did not explicitly stipulate that from that time onward they would be permitted, they require a vote to permit them, just as at the giving of the Torah: even though He fixed a time to purify them and said 'Be ready for the third day,' He had to return and say 'Return to your tents'… Accordingly, the same would apply to communal agreements.

But the clearest commentators wrote that whenever they specify a time, it is as though they explicitly said that from that time onward it will be permitted, for it is no more stringent than a vow or oath for a fixed time, which does not need another release. And although in the Torah it says 'three days' and nevertheless it was necessary to say 'Return to your tents,' there one could well say that it meant three days before the giving of the Torah, and we might have judged all the more so after it was given until they completed learning it, and moreover the wording leaves room for doubt, since it says 'for the third day,' that is, be prepared for that day and sanctify yourselves from now onward. But wherever there is no doubt in the language of the time specification, it is entirely permitted, and this seems right to me.

He makes this depend on the interpretive question. Therefore, if they explicitly stipulated it, then it certainly holds only for a fixed time. But if they did not stipulate, we are not certain that this was their intention. He concludes that wherever the language leaves no doubt, it is certainly entirely permitted. True, all this concerns a fixed time, but regarding the rationale he does not draw such a distinction.

Later he also writes:

Even regarding communal agreement I am inclined to be lenient and say that all communal enactments are made for the needs of the moment; and even though they phrase them generally, common sense indicates that whenever a new situation arises such that another agreement is needed to repeal the first, they and their children are exempt even within the set time, and we do not need people greater than them, because the enactment was from the outset established on that condition.

Nevertheless they do require a formal vote, that is, an assembly of the leading figures of the city and their standing. And if a ban or oath was involved, they must seek release from it.

Furthermore I say that even with what was prohibited by formal vote, where the reason has passed and we say a formal vote is needed to permit it, this is specifically when it never entered the minds of the prohibitors that that reason would lapse—such as the case of the fourth-year vineyard we mentioned, where it never entered their minds that the Temple would be destroyed and the reason would lapse. But matters prohibited by formal vote because of a reason whose lapse it is reasonable to foresee are as if they explicitly enacted them only until that reason passed, and they are permitted without another formal vote—though one should not rely on this in practice.

Here he says that when there is a circumstance the enactors could themselves have anticipated in advance, that is like fixing a time limit, and no formal vote is needed to repeal it—not merely that one need not be greater than the first court, but that no formal vote at all is needed.

One should note that he does not say that when the rationale lapses, the enactment lapses without a formal vote. He says this only if the enactors themselves could have thought of these new circumstances. The basis of the matter is the formal conception that a matter enacted by formal vote always requires another formal vote to permit it. When the first court thought about the new circumstances, one may assume that it itself did not enact for those circumstances, and thus it is as if they themselves repealed the enactment. But when they themselves could not have thought of it, then even if in fact, had they thought of it, they would have exempted us from this rule, that does not help, and another formal vote is required—like unconscious despair, which in the law is not considered despair.

The Meiri continues:

Nevertheless, whenever they enacted and stipulated that whoever wishes to repeal may repeal, then even if the reason has not passed, and even those inferior to them may repeal it. And although this needs no support, it is stated explicitly at the beginning of Mo'ed Katan.

Again we see that everything depends on the presumed intent of the enactors, but not on presumed intent alone; rather, on actual permission in practice. It is not enough that we estimate that they would have repealed it; they must actually have repealed it, as with unconscious despair.

He then continues and says:

So too it seems to me there that the rule of a matter enacted by formal vote was stated only about what they enacted out of need; but what they established because they derived it by reasoning as an explicit matter, and later authorities saw that it was not so for another strong reason—there the later authorities can repeal it. And this is what they said there: 'Rabban Gamliel and his court, too, repealed it on the basis of Torah law.'

At the end of his words he makes Maimonides’ distinction between the sages’ interpretation of the Torah—though he also includes enactments founded in reasoning, such as Ḥanukkah lights and the like—where anyone may revise, and the sages’ enactments, where superiority in wisdom and number is required. This is the distinction between interpretation and legislation that we saw above.

The approach of hidden rationales

Some understood that one may not repeal the enactment even when its rationale has lapsed, because perhaps the rationale is not known to us. This is famously associated with the Vilna Gaon. See also the Hatam Sofer in his novellae to the Beitzah passage, where he cites the Rosh:

Furthermore, it seems to me that whenever the reason is known and clear to all, this is as if they explicitly fixed the time. Then, when the known reason lapses, the enactment lapses. And according to the one who holds that when the time passes no formal vote is needed at all, so too here when this reason lapses no formal vote is needed. This is the view of the Rosh's responsum brought by Magen Avraham sec. 9, subsec. 7. And according to Rashi and those with him, even though another court is required, a lesser one suffices, just as when the time has passed.

We see that he makes the matter depend on whether the rationale is known. When the rationale is known, for example when the rationale of the enactment is stated in the body of the text, it may be repealed when the rationale lapses—similar to what Tosafot ha-Rosh said above in Bava Metzia 90, that where the rationale is self-evident one derives law from the reason of the verse.

According to this, it is very plausible that an enactment limited to a fixed time lapses on its own once the time has ended, for there it is entirely clear that this was what the original court intended.

Does this accord with what we saw in the Rosh, according to whom when the rationale of the enactment is clear it lapses on its own? Perhaps yes. Only if the rationale is unclear can one speak of hidden rationales. But that is not plausible, for even if there is a clear rationale one can still suppose that there are hidden rationales. Alternatively, if the rationale is unclear there is no need to invoke hidden rationales at all, since in any case there is no understanding of the rationale. Therefore, on the straightforward reading, this approach does not accord with the Rosh’s words.

In any event, it seems that this approach cannot stand in the face of a situation in which the earlier enactment causes harm. The concern that perhaps there are hidden rationales is at most a doubt, and doubt does not override certainty.

Cases and mechanisms of repealing enactments: the law of the Chaveri

In Beitzah 6a we find that it is permitted to attend to the needs of the dead on the second festival day, even ancillary needs, such as cutting myrtle to place beside the bier of the dead for honor. The Talmud there says that now that there are Chaveri, all of this is prohibited. And Rashi explains there:

Where there are Chaveri—a wicked nation in Persian times, who coerced Israel to do their labor; and on a festival the Jews were excused by saying to them, 'It is a festival.' But if they saw them burying their dead, they would force them to work.

And in Tosafot, s.v. 'Ve-ha'idna,' there, they wrote:

Now that there are Chaveri, we are concerned—Rashi explained that they force Jews to work, and when it is a festival they leave them alone, but if they saw them burying their dead they would force them to work. Therefore nowadays, when there are no Chaveri, it is permitted. And one should not say that another formal vote is needed to permit it, because since this reason is only out of concern, and the concern has passed, the reason has passed. So too we say regarding exposed water, that it is prohibited lest a snake drank from it; but now, when snakes are not common among us, we drink it even ab initio, even though it is a matter enacted by formal vote. Nevertheless Rabbenu Tam would prohibit it.

Tosafot say that nowadays there are no longer Chaveri, and therefore the original permission returns to its place. They continue that another formal vote is not needed to permit it, because the rationale of the enactment that prohibited it has lapsed. They add that the same is true with exposed water: where snakes are not present, one may drink it even initially, although it was a matter enacted by formal vote.

These words are difficult, for the entire discussion regarding another formal vote to permit concerns precisely an enactment whose original rationale has lapsed. How, then, can Tosafot say here that such an enactment lapses on its own, without a formal vote, because its rationale has lapsed?

One might explain that Tosafot view the prohibition because of the Chaveri as something not enacted by formal vote, but rather as a mere practice of prohibition because of danger. If it was not prohibited by formal vote, then certainly no formal vote is required to permit it. But this too is difficult, for Tosafot bring an example from exposed water, and there they explicitly say that it is a matter enacted by formal vote, and nevertheless when its rationale lapses it lapses.

And indeed, in the wording of the Rosh here, sec. 5, this seems to be the explanation:

Ravina said: And nowadays, when there are Chaveri, we are concerned. But in this time there is no reason to prohibit on that basis, since there are no Chaveri nowadays, just as we are not careful about exposed water because snakes are not common. In such a case this is not a matter enacted by formal vote. Rav Alfasi also did not write this in his halakhot. But Rabbenu Tam, of blessed memory, was stringent in the matter, and R. Ḥananel likewise ruled in accordance with Ravina.

He says explicitly that in such a case this is not a matter enacted by formal vote, and therefore it should be permitted even without another formal vote. Perhaps the Rosh is following his own view, which we saw above, that when the rationale is clear no formal vote is needed to repeal the enactment. But, as noted, Tosafot wrote explicitly that it is.

It may be that Tosafot mean that in these cases the rationale of the enactment appeared explicitly in its formulation, and in such a case, when the rationale lapses, the enactment lapses on its own, as with reading by candlelight lest one tilt it, as above.

In other words: the enactment was to be concerned about the Chaveri, and not to prohibit caring for the dead. Consequently, there is no prohibition on tending to the dead; there is only an obligation to fear the Chaveri. This is somewhat analogous to what can be said regarding deriving law from the reason of the verse: at least according to those who do so, they view the rationale itself as the prohibition, and not the formal command. For example, with 'he shall not multiply wives for himself, lest his heart turn away,' the tannaim disputed in Sanhedrin 21 whether the prohibition is on multiplying wives or on the turning away of the heart. There too, this is because the rationale of the commandment appears in its wording in the Torah. The question is when we say that the enactment itself is the prohibition, and when we say that the enactment is really the rationale. The boundary is not clear. One could always say that what they prohibited was the rationale and not the enactment, and thereby turn the rationale into the legal boundary.

However, the plain wording of Tosafot points in a different direction: there is a difference between an accidental case in which the rationale of the enactment has lapsed, and a case in which the whole reality has changed and the rationale of the enactment is no longer relevant. If there is a place where there is no concern that one will tilt the lamp, that is a case of a lapsed rationale. But where people no longer use a lamp that can be tilted, that is a situation in which the enactment itself no longer exists, and no formal vote is needed at all to repeal it.

Put differently: if it is clear that the enactment was never general, but was enacted only for a particular place and time, then it lapses on its own.

And in Avodah Zarah 64b-65a we find:

Rav Yehudah sent a gift to Avidarna on the day of his festival, saying: I know that he does not worship idolatry.

Rabbi Yehudah sent a gift to a certain gentile, named Avidarna, on the day of his festival, and justified it by saying that he knew him not to worship idolatry.

And the Ran there cites Tosafot (also brought in Peri Hadash, beginning of sec. 116):

I found that Tosafot wrote that the rule that a matter enacted by formal vote requires another formal vote to permit it does not apply here, since the concern that he will go and give thanks does not apply except to those who worship idolatry. It therefore seems that their view is that when we say that another formal vote is required to permit it, that is only to permit those cases in which the reason for the prohibition existed at the outset even though it has now lapsed. But those cases in which the reason for the prohibition never applied from the outset are permitted without another formal vote.

He explains that a matter enacted by formal vote requires another formal vote if we wish to permit something that was originally prohibited and only later its rationale lapsed. But when we are dealing with a situation that was never prohibited from the outset, then no formal vote is needed to permit it. The claim is that from the outset they did not prohibit giving gifts to a gentile who does not worship idolatry. Only if they had prohibited all gentiles, and later the gentiles ceased worshiping idolatry, would we have required a formal vote to permit it. This principle is very similar to what we saw above in Tosafot regarding the Chaveri.

The Ran himself, however, disagrees with Tosafot, because Tosafot formulated a sweeping principle, whereas he says that perhaps specifically here the sages knew by tradition, in Rabbi Yehudah’s case, that they prohibited only gentiles who actually worship idolatry. That is, he holds that one should not derive from here a general principle.

But Tosafot apparently formulate this as a sweeping principle and not as a local explanation. And indeed in Korban Netanel here, sec. 9, he cites these Tosafot and explains through them the Tosafot in our passage.

In any event, Korban Netanel explains accordingly also the words of Tosafot in our passage, namely, that the enactment from the outset applied only in places where there were Chaveri, but elsewhere the permission to attend to the dead remained in force. Therefore in places without Chaveri, not in Babylonia, there is no need for a formal vote. But according to this, in places where there were Chaveri, even if now there are no Chaveri, one may not permit without a formal vote.

It should be noted that Peri Hadash there points out that this is Tosafot’s approach in other places as well: at the beginning of Avodah Zarah, where they explain why we engage in commerce with them on their festival days; and with gentile wine in our time, because they no longer perform libations. On this basis he also explains Tosafot in our passage, that exposed water is likewise permitted, because the original enactment never applied in places where snakes are absent.

Additional sources

We find additional places where similar permissions were stated, and in each one it must be examined which of the mechanisms was used to justify the permission. For example, Tosafot, s.v. 'Makom,' Pesahim 50a, wrote: 'A place where the custom is…' Rabbi Yitzḥak said in the name of the Rivba that the Jerusalem Talmud explains: what is different about Passover eve from other festival eves? Because the time of the Passover sacrifice is from noon onward. It even says there that on other days of the year, an individual on the day he brings a sacrifice is forbidden to do labor. The Jerusalem Talmud asks: if so, the whole day should be forbidden, just as for an individual bringing a sacrifice. It explains there: because the sacrifice is fit to be offered from morning onward; but the Passover sacrifice cannot be offered until after noon, as we derive from 'between the evenings.' It asks further: if so, the daily offering, which is for all Israel and is offered every day, should render every day forbidden for labor. It answers: the daily offering is different, because the Torah excluded it from the rule, as it is written, 'and you shall gather in your grain'; for if all Israel sat idle, who would gather their grain? It appears there that this prohibition is biblical. And it seems that even nowadays, when there is no sacrifice, since it was forbidden then, it remains forbidden forever.'

Tosafot say that the prohibition of doing labor on Passover eve from noon onward remains in force even when sacrifices are no longer offered. Here it remains prohibited because the prohibition was stated for all of Israel, except that there is now no Temple. Therefore here a formal vote is required in order to repeal it.

A similar principle we find in the rule that we ask and expound the laws of Passover. In Avodah Zarah 5b, Tosafot, s.v. 'Ve-haTnan,' wrote: 'But did we not learn: we ask about the laws of Passover?—Although even now, when there is no sacrifice, we still ask about the laws of Passover during the thirty days beforehand, nevertheless the original enactment was made on account of the sacrifice, as the reason stated in the first chapter of Pesahim says, because Moses stood on the first Passover and warned about the second Passover.'

Here too it is similar to the prohibition of doing labor.

In both of these cases, the enactment was made from the outset for the entirety of Israel, but the rationale has now lapsed. Still, it was not from the outset enacted only for part of the public, and therefore it cannot be repealed here without a formal vote. Why does the principle above not apply here, that when the rationale has wholly lapsed no formal vote is needed? Perhaps these Tosafot disagree with those Tosafot. Or perhaps here the rationale has not wholly lapsed, since the Temple may speedily be rebuilt and the sacrifices restored.

Likewise we find in Tosafot, s.v. 'Vi-hyitem,' Berakhot 53b, regarding final hand washing: 'And you shall be holy—this refers to final hand washing. This applies specifically to them, because they were accustomed to wash their hands after the meal because of Sodomite salt. But we, among whom Sodomite salt is not common and who are not accustomed to wash after the meal, the washing does not prevent us from reciting a blessing. Nevertheless, refined people who regularly wash their hands after the meal—for them the washing certainly does prevent them from reciting Grace after Meals, and they must wash their hands before Grace after Meals.'

Here too the enactment was from the outset made only for places where Sodomite salt is found (Peri Hadash explains: in the region of Sodom), but not for other places.

And in Tosafot, s.v. 'Ḥada,' Avodah Zarah 35a, they discuss the reasons for the prohibition of gentile cheese, and their assumption is that without the rationale the prohibition does not exist. They further wrote there regarding snakes: 'And we, among whom snakes are not common, need not worry about exposure. And one should not say that this is a matter enacted by formal vote and requires another formal vote to permit it, for certainly when they originally prohibited it they prohibited it only in a place where snakes are common, as I will explain below regarding libation wine.'

And likewise in Tosafot, s.v. 'Le-apukei,' Avodah Zarah 57b: 'Furthermore, the Rashbam and the Rivan בשם Rashi explained, as is written in the responsa of the Geonim, that nowadays there is no prohibition of deriving benefit from wine touched by a gentile, because the gentiles of today are not accustomed to pour libations to idolatry, and are regarded as not knowledgeable in the nature of idolatry and its ministrants; they are therefore like a newborn child. On this basis we rely to collect gentile wines in payment of debts. About this matter Rabbi Yitzḥak sent to Rabbenu Tam: behold, it is evident that from you, your father, and your brother, the touch of a gentile in wine is permitted to the world, even for drinking, for your brother Rabbi Shmuel ruled in the name of your father Rabbenu Shlomo that gentiles nowadays are considered only like a newborn child; and you rule regarding a newborn child like Samuel, who holds that he does not render wine libation wine so as to prohibit it even for drinking. Rabbenu Tam replied that the student who wrote this was hasty in ruling, and heaven forbid that such a thought entered his mind. Rather, certainly we follow Rav in matters of prohibition against Samuel, and a newborn child does render wine libation wine to prohibit it for drinking. Gentiles nowadays are indeed like a newborn child, as Rabbenu Shlomo ruled. Nor is the law like Samuel regarding slaves who were circumcised but not immersed, requiring twelve months for them to become assimilated, for the baraita refutes the wording that says the wine is pure, and we follow Rav in that case since we follow Rav in the matter of the newborn child. And this was the custom of the people of Ashkenaz, that slaves touched wine immediately after circumcision and immersion.'

And at the end of Tosafot there we find: 'And if you ask: once they decreed against libation by a gentile, it becomes a matter enacted by formal vote, requiring another formal vote to permit it. One may answer that they decreed only against those who actually pour libations; and since nowadays they do not pour libations to idolatry, there is room to be lenient. A proof is that in chapter 2 (below 65a), Rava sent a gift to Bar Sheshakh on the day of his festival, saying: "I know of him that he does not worship idolatry." And although doing business on their festival day was also a matter enacted by formal vote, another formal vote was not needed to permit it for those who do not go and give thanks, because certainly from the outset they did not decree against them. Nevertheless, there remains a difficulty: how can we permit deriving benefit from their ordinary wine, since they decreed against it because of their daughters, and that reason still applies now as well? One may say that what they decreed regarding their ordinary wine—to prohibit benefit from it more than from their bread and oil—was because libations to idolatry were common. But now that libation has ceased, since they do not know the nature of idolatry, it suffices to treat it like their bread and oil, or like food cooked by gentiles: prohibited for drinking, but not for benefit. And whoever is stringent, blessing shall come upon him.'

That is, here too they permit because of changed circumstances, even though it seems that from the outset they did not mean to permit anyone.

Peri Hadash remained perplexed by our Tosafot, who permitted only because of changed circumstances, but it seems that this is Tosafot’s method in other places as well. And it seems that in all these places the definition is like the Ran, not like the Tosafot cited by the Ran: there are cases in which the legal definition of the prohibition from the outset was the rationale itself, not merely a prohibition because of the rationale, and therefore in all these places one follows the rationale. Still, it requires further clarification how one decides when to follow the rationale and when not.

And this is the intent of Tosafot, s.v. 'Shivta,' Yoma 77b, who wrote: 'Because of shivta—Rashi explained: an evil spirit that rests on hands not washed in the morning. Rabbenu Tam explained that even without giving bread to a child, one may wash his hands in the morning on Yom Kippur, for this is no worse than hands dirtied with mud and excrement, about which we say that one washes normally and need not worry. There is nothing more soiled with mud and excrement than one whose hands were not washed in the morning, for he may not touch his mouth, nose, ears, or eyes, as stated in chapter Shemoneh Sheratzim (Shabbat 108b): "a hand to the mouth should be cut off," etc., because of the harmful spirit called bat melech. And the shivta here is a different matter: it rests on food when one comes to give bread to a child of four or five years, and it chokes him if the person has not washed his hands at that time, even though he already washed them in the morning. As to why people nowadays are not careful about this, it is because that evil spirit does not rest in these kingdoms, just as people are not careful about exposed liquids or about pairs.'

However, in Tosafot, s.v. 'Tenan,' below 30a, they wrote regarding clapping and dancing: 'We learned: one may not clap or dance. Rashi explained: lest one repair a musical instrument. However, for us it is permitted, for this decree applied specifically in their day, when they were skilled in making musical instruments and there was reason to decree; but for us, who are not skilled in making musical instruments, there is no reason to decree.'

Here it is truly unclear why Tosafot explain that the legal boundary of the enactment was not to come to repair musical instruments. Here, on the face of it, this is the rationale of the enactment and not its legal definition. Perhaps there is room for the principle of 'leave Israel be': if we have seen that the public does not keep the enactment, then we may assume that this expresses the fact that the legal definition of the enactment is not relevant now.

Or perhaps one could say that where circumstances have changed, the criterion of prior acceptance no longer suffices to sustain the enactment, for under changed circumstances it is like a new prohibition, and a new prohibition requires renewed acceptance. Therefore, in Tosafot, they consistently permit only following a custom that spread among the public to be lenient regarding such enactments, and they do not rule leniently ab initio. Usually this is understood to mean that Tosafot are only trying to defend, after the fact, those who are lenient. But according to our approach one can say that the lenient practice of the public is itself a substantive reason to permit, and without it there is no permission.

Or perhaps the criterion we saw above applies here: a permanent change that does not return, and when the rationale has lapsed utterly and forever, no formal vote is required.

Rabbi Gutel, in his book on changes in nature in Jewish law, notes additional sources, in which another reason appears: that from the outset they stipulated that the enactment could be repealed. In most places, however, there is no proof that such a stipulation was indeed made from the outset, and it seems that this is apologetics after the fact (see there, especially note 543).

A note on Maimonides’ approach

Maimonides is not lenient in any of the matters that Tosafot mentioned. He prohibits exposed liquids (Hilkhot Roṭze'aḥ 11:6), requires final hand washing (Hilkhot Berakhot 6:2), prohibits gentile cheese (Hilkhot Ma'akhalot Assurot 3:13), and prohibits dancing (Hilkhot Shabbat 23:4). It seems that he disagrees with Tosafot’s entire approach.

However, it may be that in his locale the lenient custom had not spread, and therefore one should not be lenient. True, the original requirement is that it spread throughout the Jewish people, but since the dispersion from Babylonia, each community is a collective unto itself, and therefore the requirement of acceptance applies to each community separately.

As for the Chaveri, there Maimonides himself also did not cite the issue, and wrote simply (Hilkhot Yom Tov 1:23) that a festival is like a weekday with respect to the dead. It seems that he understood there was no enactment forbidding burial because of the Chaveri; rather, there was fear of the Chaveri, and because of that people treated it as forbidden. Where there is no enactment, no formal vote is needed to permit it. This is similar to the rationale we saw in the Ran: here they never prohibited burial of the dead at all; they merely required concern for the Chaveri. According to Maimonides this may be even easier, because it is not a matter enacted by formal vote at all—whereas in Tosafot we inferred that it was. It was merely a custom, and nothing more.

C. Specific reasonings, distinctions, and mechanisms

Summary

In this section I will summarize what emerges from all that we have said regarding possible avenues of change. In the course of the summary I will incorporate additional mechanisms and distinctions that we find in the decisors, whose basis is usually logical reasoning and not Talmudic passages. As stated, I see no place to elaborate upon them, because these are only tools in the toolbox that may be used according to our own understanding. There is no binding authority here.

Possible mechanisms of change

If one gives up the assumption of the decline of the generations, perhaps one can say that in our day there could be a religious court greater than its predecessors (depending on the agreement of the public as a whole, somewhat like the renewal of ordination according to Maimonides). Perhaps that would count as superiority in number but not in wisdom.
If continuation of the enactment is harmful, it should be repealed, for its corruption is its repair. And in our day, when we have seen that the harm is even more evident and leads to desecration of God’s name, there is certainly more room to be lenient regarding the requirements for repealing enactments.
When the rationale has lapsed, there is room to take communal practice into account under the principle that the enactment did not regain renewed acceptance.
Rav Kook in LeNevukhei HaDor: a court can repeal the very principle that a matter enacted by formal vote requires another formal vote in order to permit it (especially if that principle is itself Torah-level—'return to your tents'—in which case, according to Maimonides, no greater court is needed).
When the rationale of the enactment is clear, or stated within it, it may be repealed, as in Tosafot ha-Rosh regarding deriving law from the reason of the verse, and in the responsum of the Rosh that we cited.
When the rationale has lapsed permanently and no longer applies, or where from the outset it was limited to a particular place and time, or to a certain pattern of behavior that no longer exists, as in those cases discussed by Tosafot.
When from the outset the enactors stipulated that it could be repealed, there is no obstacle to repealing it. However, it is not clear how one can know that.
Many enactments were not originally enacted by formal vote, and there is no obstacle to repealing them; many have already noted this (see Rabbi Gutel, note 552). Moreover, the Malbim wrote (Arzot HaḤayyim, laws of tzitzit, sec. 9; HaMe'ir LaAretz, subsec. 141) that even where we do not know that an enactment was made by formal vote—which is true of many enactments—one may be lenient and repeal it (see further sources cited by Rabbi Gutel there, note 553).
There are many distinctions among different types of enactments (see Rabbi Gutel, p. 233 and the notes there).
Regarding a change that is adopted as a stringency, Yaavetz wrote (Leḥem Shamayim on Ma'aser Sheni 5:2) that one certainly must make it. In our cases too there are situations in which the change can be viewed as a stringency, since we are making the change for the Torah’s sake and not for our own sake. See my unpublished article discussing what a 'stringency' is.
It should be noted what we have not discussed: if there is a change in our understanding of reality, such as scientific progress, perhaps no repeal is required at all, because it has been clarified retroactively that from the outset this was a mistake (alternatively, in matters of science we are a court greater than our predecessors). This is essentially the subject of the final chapter in Rabbi Gutel’s book. Sages are accustomed to presenting mistakes of the sages of earlier generations, including the sages of the Talmud, as changes in nature. In my humble opinion, a considerable part of them were themselves aware that this was fictive and was done only out of honor and reverence, but Rabbi Gutel insists that this is not so (in correspondence I had with him on the matter).
Here I disagree with him completely. In my opinion, where there is a fictive 'change in nature'—that is, a scientific error of earlier generations—as distinct from a nature that really has changed (which can also happen), there is room to say that the enactment lapses on its own.

I would add that in such a subject, Torah law is certainly much easier than rabbinic law. If there is an interpretation of the Torah that is scientifically mistaken in our eyes—such as worms generated by decay, various fatal defects, and the like—it is clear that this is not what the Torah means. Even if sages can make scientific mistakes, the Holy One certainly does not err in understanding the reality that He created and governs. Therefore in such a case it is clear that the original interpretation was mistaken from the outset, and consequently it is nullified automatically. In my view, this is nullified even without any need for a formal vote, except perhaps for some consensus that would verify that this is indeed the correct conclusion on the scientific plane and that it is relevant to the halakhic discussion.

Conclusion

There is no need to repeat what Rabbi Gutel wrote at the end of his book, and brought many sources for, namely, that in order to repeal an enactment one needs an assembly of sages and careful judgment so that all boundaries not be breached. On the other hand, one must remember that refraining from action in these matters because of various fears leads to breaches no less severe.

In the final analysis, we have seen that the range of possibilities is immense. Even when there is no religious court at all, one can create a 'bottom-up' consensus, because the need to change is no less urgent than the need to preserve. This is not only an obligation toward the public, but toward the Torah and the Holy One themselves. It is an obligation toward truth: not to base a significant part of our lives on practices that are untrue and incorrect, that lead to mockery and farce and turn our Torah into a falsification. Therefore we shall one day be held accountable if we safeguard only the one need without giving thought to the other. One has only the sage of one’s own days.

[1] Or perhaps there is contempt for the sages here in that he placed Rabbi on the same level as Daniel, and therefore thought Rabbi was permitted to alter Daniel’s enactment.