On the Role and Authority of a Halakhic Decisor (Column 275)

With God's help

For Rivka, my daughter, may she live long, a budding philosopher destined for greatness. And for my son Yossi, who in this very column has already spared you, dear readers, several parentheses (see the footnotes).

A few weeks ago I came across an article by Hagai Huberman (Matzav HaRuach, Parashat Vayigash 5780, issue 566) about a conference of rabbis at which current issues of Jewish law were discussed. Among other things, they discussed the "smart home," that is, a situation in which various household functions (air conditioning, electrical appliances, dishwasher, and more) can be activated automatically, without human touch, in ways that generally do not involve prohibited categories of labor on the Sabbath.

The problem was presented there as follows:

The technology of the future raises a very difficult halakhic problem: from a technical point of view in Jewish law, the labors are becoming less and less 'human,' and therefore less prohibited; yet at the same time, using this technology throughout the Sabbath will turn the Sabbath into a weekday and completely change our Sabbath atmosphere. What should Jewish law's attitude toward this issue be?…

It may be that no clause in the Shulchan Aruch will be found to prohibit it, but the Sabbath itself will disappear on the horizon. How should one rule? What should the process of halakhic decision-making be?

It goes without saying that this is an extension of the question of electricity and modern technological means on the Sabbath, which has already been discussed by halakhic decisors for over a century (see, for example, Wikipedia, s.v. 'Electricity on the Sabbath'). These devices make a person's actions indirect causation (grama) at worst, and perhaps even less severe. In discussions of electricity on the Sabbath, there is a widespread sense that the prohibition did not arise from purely halakhic considerations,[1] but rather that it was clear to the decisors that it had to be prohibited, and they merely looked for a way to do so. Thus various decisors came to tie the use of electricity to the categories of building, kindling, or generating current, some of which seem like strained and problematic mechanisms.[2]

At that same conference, Rabbi Yaakov Ariel raised a claim regarding the "smart home" that puts this way of thinking squarely on the table:

Rabbi Ariel said that the drift must be stopped at its outset, and that all automatic matters must be prohibited. "Whatever is not accepted today must not be accepted tomorrow either," Rabbi Ariel said.

Notice that there is not even an attempt here to cover the matter of the source of the prohibition. Rabbi Ariel proposes a sweeping prohibition, without presenting a halakhic mechanism (such as subsuming these prohibitions under some primary category of labor or derivative thereof), for everything that does not exist today. He contents himself with presenting the problem and the motivational considerations.

In this column I wanted to touch on several aspects of this problematic claim. Let me preface by saying that the article gives only a very brief quotation, so it is difficult to know exactly what Rabbi Ariel meant by his words. But since arguments of these patterns are very common among halakhic decisors, I will use his remarks to discuss this collection of arguments in its own right.

An Interesting Precedent

Such a consideration can be seen in the responsa Igrot Moshe (Orach Chayim IV, sec. 60), regarding the use of a Sabbath clock. He raises the possibility of prohibiting it without finding a source in the primary categories of labor and their derivatives, simply because if the Sages were alive today they would certainly prohibit it:

Now in my humble opinion it is obvious that one may not permit this, for by means of such a timer all labor could be done on the Sabbath, in all factories as well, and there is no greater degradation of the Sabbath than this. And it is clear that had this existed in the time of the Tannaim and Amoraim, they would have prohibited it, just as they prohibited instructing a non-Jew for this reason...

Notice that this consideration is very similar to what we saw above. On the one hand, the motivation is to prohibit in order to prevent severe damage to the character of the Sabbath. But beyond the motivation, he too does not try to anchor the prohibition in existing halakhic sources (a primary category of labor or a derivative) but argues that it should be prohibited across the board because if the Sages were alive today they would prohibit it.

However, his conclusion there seems to refuse to rely on such a consideration alone in order to prohibit, and he looks for an existing halakhic source:

But even if we were to say that only what the Sages enacted may be forbidden, and that we cannot derive from this to forbid also what is severe on logical grounds, since in any case they did not forbid it—even if that was because this matter did not exist in the days of the Sages—still, this has no actual prohibition. Nevertheless, it should not be permitted, since it is something fit to be forbidden.

That is, in the end there is also a reason to prohibit the matter by an ordinary halakhic mechanism (for example, under the law of instructing a non-Jew; see his discussion there). Later he writes to prohibit it on the grounds of demeaning the Sabbath:

But there is strong reason to prohibit it on other grounds, namely because it degrades the Sabbath; indeed, they prohibited many things because they degrade both the Sabbath and a Jewish holiday. Since it is clear that there is degradation of the Sabbath here, it falls under this prohibition automatically, even though this specific case was not separately prohibited, because the very concept of degradation is what is prohibited. It also seems obvious to me that one who does something that degrades the Sabbath actively violates the obligation of honoring it, which appears to be a Torah obligation as explained by the Prophets, as Maimonides writes at the beginning of chapter 30 of the laws of Sabbath… And Maimonides there, halakhah 2, explains the acts one is obligated to do in honor of the Sabbath; it follows that things whose performance degrades the Sabbath likewise violate this commandment of honoring the Sabbath, and this is even worse, since he violates it through an act. Therefore, even if we were to say that this is not included in the rabbinic decrees, even without any special need he still actively violates the obligation to honor the Sabbath. And that this constitutes degradation is something anyone can understand; therefore, in my humble opinion, it stands to reason that it is forbidden to set on Friday, by means of a timer, the electricity to perform labor on the following day.

His argument is that demeaning the Sabbath is an existing prohibition in Jewish law. This consideration is one of several umbrella prohibitions that concern the character of the Sabbath, honor and delight, weekday-type conduct (uvdin de-chol), and the like. Bottom line, Igrot Moshe apparently is not willing to accept this type of consideration as the sole basis for a prohibition. The reason is quite clear. If we seize the reins in this way, the list of labors that appears in the Mishnah of Kelal Gadol is no longer binding. Every generation will build its own list, whether leniently or stringently.

A Note on the Classification of Labor on the Sabbath

Beyond the principled discussion that I will want to conduct later, precisely with regard to prohibitions of labor on the Sabbath there may perhaps be room for this type of consideration. According to at least one of the views in Tosafot at the beginning of Bava Kamma (2a; see Maharsha and Maharam there), the thirty-nine primary categories of labor are all the significant labors (not necessarily only those that were in the Tabernacle). The Sages surveyed all the labors known to them, selected from among them the significant ones,[3] and these were fixed as the thirty-nine primary categories of labor.

If so, there is room to say that there is nothing sacrosanct about the rabbinic list, and in our day, when the use of electricity is a significant labor, it should be prohibited as a newly defined primary category of labor, even without the need to anchor it in an existing category of labor. At least according to the approach I described above, it is not reasonable to see sanctity in the rabbinic classification, which is a product of their period and the environment in which they operated. On the contrary, it would be more correct and straightforward in every generation to choose the thirty-nine significant labors and determine that they are the primary categories of labor. That is precisely the meaning of the statement by Igrot Moshe that if the Sages were alive today they would regard this as a primary category of labor and prohibit it by Torah law. Here is a novelty for you: not every innovation is lenient, and not every conservatism is stringent. There are also innovations and halakhic revolution whose meaning is stringency.

Considerations of the Character of the Sabbath

Considerations of character arise quite often among halakhic decisors, especially regarding the Sabbath. Some rely on the well-known words of Nachmanides (on Parashat Emor, also cited by Ritva to Rosh Hashanah 34) about a Torah-level shevut (rest restriction). Nachmanides argues that the Torah prohibits actions that do not constitute labor solely in order to prevent harm to the Sabbath and its transformation into a weekday. The example usually given is a prohibition on commerce and opening shops on the Sabbath, even if one sells on credit and without violating formal halakhic prohibitions. Decisors extrapolate from this to many additional prohibitions (see, for example, here).

I have always wondered about considerations of character on the Sabbath. Quite a few things are prohibited (sometimes this is only in the subtext) on the ground that it just 'isn't done'; that is not how one behaves on the Sabbath. But this begs the question: you assume what the character of the Sabbath is and from that derive what harms it. If we assume that the character of the Sabbath is cessation from the set of prohibited labors, then anything not included in them does not harm the character of the Sabbath. And if not, then what exactly defines that character? For example, why does riding a bicycle harm the character of the Sabbath? Because we assume that one does not ride bicycles on the Sabbath. But if we permit it, then one does do so on the Sabbath, and that will therefore become part of the character of the Sabbath. My feeling is that in many cases, if not in all of them, considerations of Sabbath character are nothing but expressions of sheer conservatism (the desire to preserve the existing situation), and not some objective and correct consideration of character.[4]

There is, however, a related concept, and perhaps there is room to identify the two with one another, namely uvdin de-chol. Here, ostensibly, matters are better defined. When we come to discuss an action that is done on weekdays, then if we permit it on the Sabbath we erase the difference between Sabbath and weekday. That is already an objective definition, because it does not try to define the Sabbath from within itself but only in contrast to the weekdays. But even this is far from simple. For example, a prohibition on riding a bicycle on the Sabbath does indeed distinguish the Sabbath from weekdays, but that could very well also be a Sabbath marker. On the contrary, on weekdays one drives a motor vehicle, and the Sabbath has a special character: on the Sabbath one travels only by bicycle. Just think about Yom Kippur, which no one disputes has a very special character different from weekdays, and part of that character is based on bicycles in the streets.

Of course, not traveling by bicycle is even more Sabbath-like: on weekdays one travels both by car and by bicycle, whereas on the Sabbath one refrains from both. But this line of thought could lead us to prohibit wearing trousers or eating apples on the Sabbath. If we prohibit such actions, the Sabbath will certainly be far more distinctive than weekdays. The question of the boundary—how far one should go in preserving the uniqueness of the Sabbath—has no simple answer. In other words, the question of the character of the Sabbath seems vague, and in fact not defined at all.

If we return to the example of the smart home, why does automatic operation of air conditioners harm the character of the Sabbath? How is that different from eating apples or cake on the Sabbath? Is it because turning on an air conditioner is a prohibited action? But in a smart home this is not a prohibited action (which is why only now are we discussing whether to prohibit it). So what exactly is the problem? Moreover, how does this harm the character of the Sabbath more than operating air conditioners with a Sabbath clock? Does anyone really see a difference? In both situations the person did nothing. It is something that happened on its own. The obligation of cessation on the Sabbath falls on the person ("so that he may rest", 'so that he may rest') and not on the objects themselves (the cessation of utensils is not required according to Jewish law). The same is true of a dishwasher, which already today many people operate on the Sabbath by means of a Sabbath clock. What is special about the smart home, as opposed to all the technology that already exists today? Who decided that all these constitute harm to the character of the Sabbath? On the contrary, air conditioning on the Sabbath is a delight. It creates a distinction between Sabbath and weekday, but its main point is that on the Sabbath we suffer more. Is that really the goal of character-based prohibitions?[5]

A Note on Character-Based Prohibitions

In light of these remarks, one may of course wonder about the prohibitions that were already established in the Talmud because of uvdin de-chol and the character of the Sabbath (as well as regarding the example of commerce and opening shops in Nachmanides). After all, there too the Sages begged the question, and there too it is not clear what criterion they used to establish such prohibitions. Alternatively, if they did so, why should the sages of later generations not do the same?

That is a good question. But since these things were established by the Great Court (or in the Talmud, whose status is like that of the Sanhedrin), they have force. An authorized institution has the authority to determine that certain things run contrary, in its view, to the character of the Sabbath (even if I personally disagree, or think that the argument begs the question). It is enough that they have an intuition in their gut that this contradicts the proper character of the Sabbath in order to prohibit it. I can of course disagree with them, but there is "do not deviate" ('do not deviate'), and therefore their determination binds me. But when a decisor who does not sit in the Sanhedrin comes along, he cannot determine what the character of the Sabbath is unless he presents criteria. Such a decisor can only interpret the enactments of the Sages and the early courts, and not create new prohibitions. To bring a new action under the existing prohibitions of character and uvdin de-chol, he must present interpretive criteria that are persuasive enough to show that it is indeed included within them. Therefore I argue that the core of the problem arises when post-Talmudic decisors innovate character-based prohibitions. With regard to the Talmud, the problem is interpretive: what did the Talmudic sages think about the definition of the character of the Sabbath? But with regard to contemporary decisors, the problem is far more acute: they have no authority to establish such prohibitions. I will return to this point at greater length below.

What Exactly Was Rabbi Ariel's Consideration

As noted, his words were quoted in the article very briefly, and therefore it is difficult to know exactly what he meant. One possible way to understand him is that he meant to prohibit on the grounds of uvdin de-chol, or the character of the Sabbath, or the honor of the Sabbath. In that case all the points I have described until now arise, but despite the problems, arguments of character are a standard halakhic way of thinking. It does not seem that Rabbi Ariel meant to make that simple claim. From the description in the article, it appears more likely that he intended to prohibit all these actions as intrinsically prohibited, that is, to place them within the prohibitions of labor. If that is the move, then arguments about character are the basis and the motivation, but the halakhic mechanism to be employed is the prohibitions of labor.

It is important to understand the difference between these two tracks. A consideration of harm to the character of the Sabbath is not committed to the definition of the labor prohibitions. This is a policy consideration, and it is reasonable to entrust it to the discretion of the decisor (if we set aside the problems described above. Problematic as it may be, this is the accepted approach among decisors). This consideration is decided by the question of how much the character of the Sabbath is harmed by permitting the action under discussion. By contrast, the second type of consideration does not deal with the character of the Sabbath at all, but with the importance of the labor under discussion, or with the question of how similar it is to one of the primary or derivative categories of labor listed in the Mishnah of Kelal Gadol. This is a consideration fundamentally different from considerations of character and uvdin de-chol.

Notice that even under the second type of consideration there are two different shades:

1. To find a primary category of labor or derivative under which this falls. That is, we must examine how similar the action under discussion is to one of the labors prohibited in the Mishnah and the Talmud. Admittedly, from the description of the problem it seems clear that there are no such labors in the Talmud, otherwise there would not be much novelty here. This is a prohibition like any other prohibition learned from an ordinary Talmudic source.

Yet at times it seems that decisors pile things up and define these actions as some category or another, building for example, merely so that they can prohibit them. This is the hiding of character-based considerations in the cloak of labor prohibitions. That is the feeling described above regarding the prohibition of electricity on the Sabbath.

2. To prohibit them in their own right, as in the consideration of Igrot Moshe —that if the Sages were alive today they would prohibit these actions. Here we must examine the importance of the labor under discussion in its own right, and not necessarily its similarity to some primary category or derivative in the Talmud. This line of thought, which in my view is possible in principle, is not accepted by almost all decisors. We saw that even Igrot Moshe itself, which raises this possibility, ultimately qualifies it. Is this the halakhic revolution that Rabbi Ariel is proposing?

This is a very far-reaching proposal, and I would expect to see it presented explicitly and argued in detail, together with all the implications for our ability to make changes in Jewish law (including lenient ones). My bet is that Rabbi Ariel would not stand behind such a formulation. Would he be willing to abolish other primary categories of labor such as sheaf-gathering, winnowing, or sifting,[6] and perhaps carrying, which is a weak category of labor, in order to complete the list of thirty-nine primary categories? I have no doubt that he would not.

The Meaning of This Ambiguity[7]

The fact that it is difficult to distinguish between these two types of arguments is not accidental. It characterizes quite a few discussions that mix policy considerations with considerations of essence, or motivation with the legal, halakhic, or economic mechanism required to implement it (all legal fictions are examples of this). To sharpen the point, I will bring a few examples.

Discussions of veganism are often based on considerations of animal suffering. But a large majority of animal-rights activists, even if they begin with such considerations, very quickly move as if by magic to considerations of animal rights and to a prohibition on exploiting them even in situations where there is no suffering at all. The arguments they use are almost always arguments about animal suffering, but the motivations are entirely different. Try proposing a solution for consuming animal-based food in a way that causes no suffering to animals, and see what reactions you get there.[8]

Discussions of the status of women and of modes of interaction between the sexes in the community, in the synagogue, and generally, likewise begin with slippery-slope considerations and apocalyptic predictions about the consequences, but the arguments are usually presented as halakhic arguments (which generally do not really hold water). In many cases the slippery-slope arguments are presented without even bothering to offer a halakhic mechanism, as we saw in the discussion of labor prohibitions on the Sabbath in a smart home.

Discussions of socialism and capitalism raise arguments related to economic efficiency—what will lead to a more successful economy,[9] but in fact the discussion rests on a value dispute between those who champion freedom and those who champion equality. Once again there are transitions between the arguments, when for some reason all those who support freedom think that capitalism leads to a more successful economy, and those who support equality think that socialism is the more successful economic system (and not only the more just one).[10]

The Authority of a Halakhic Decisor

In the remarks cited above, Rabbi Ariel proposes prohibiting across the board every action that does not exist today. Above I already touched on not-simple questions about the policy and motivation themselves, and wondered whether the Sabbath really has a defined character or whether this is merely conservatism. Here I would like to address this claim from a different angle, no less important: the question of authority, or more precisely the role and modes of operation of the halakhic decisor.

At least for the sake of discussion, I will now accept the claim regarding the motivation to prohibit all these actions. That is, I will now assume that there is indeed a character to the Sabbath and that it is proper to preserve it, and I will also assume that this is the proper way to do so. Still, the question remains whether this can in fact be done. I hinted above at the mixing of the question of motivation with the question of the mechanism that implements it, and now I am putting that on the table. The question is whether Rabbi Ariel, or any person or other body, can carry out this (worthy) thing. In my view the answer is no. I argue that even if it were proper in Jewish law to prohibit a smart home categorically, there is no halakhic way to do so. In order to create a prohibition, we must find an authorized halakhic source that prohibits it. Thus, for example, if one can show that this action is a form of building, trapping, kneading, sewing, or the like, it can be prohibited. But if there is no primary category of labor or derivative that this action actually instantiates, then no decisor or body has any halakhic way to prohibit it, however worthy such a prohibition may be.

Prohibitions in Jewish law can come from two principal sources: from God (the Torah or a law given to Moses at Sinai) or from enactments and decrees of the Sages. Of course, what is written in the Torah also requires interpretation, and the Sages do that interpretation as well, but here the question of authority enters. The Sages have two kinds of authority: to interpret and to legislate. They interpret what is written in the Torah and the laws given to Moses at Sinai (and the products of interpretation are Torah law), and they also legislate new laws (in which case the products are rabbinic law). I should note that reasoning can also be a source in Jewish law (though in a limited way. See the details in my article on reasoning), but with regard to it as well the question of authority arises. My reasoning binds me, but not anyone else. Reasoning that binds all of us is only the reasoning of an authorized body.

Who are those Sages who constitute an authorized body? Only the Sanhedrin or the Talmud (or a rabbi for his community, if they accepted him as their authority). Therefore, from the time ordination ceased and the Talmud was sealed (its status has already been discussed here more than once), no person or institution has authority to create new laws, whether by way of interpretation or by way of legislation. Note well: this is true of interpretation as well. Although there is no definition of who has authority to interpret the Torah and the Talmudic text, the interpretation of an unauthorized person binds only him and no one else. When I ask a rabbi, he can answer me on the basis of an interpretation he gives to a binding source (Torah-level or rabbinic), but if I disagree with his interpretation he has no binding authority over me.

The conclusion is that from the sealing of the Talmud onward, a decisor, important as he may be, cannot create new laws. He can only interpret existing laws, and even if he does so, his interpretation binds only those who accepted him as their authority or those who asked him. In the third volume of the trilogy I defined this as substantive authority and not formal authority. A decisor has authority to interpret as an expert in Jewish law, but this is a different concept of authority. I accept his words only if I am persuaded that he is indeed interpreting correctly. Admittedly, the persuasion may come either from the interpretation itself or from recognition of the decisor's greatness. Still, there is no authority here that obligates me to accept things with which I do not agree (what I called there 'formal authority').

Returning to Rabbi Ariel, let us assume that it is indeed proper to prohibit all the actions of a smart home. If someone comes to ask the rabbi whether it is permitted or prohibited to keep a smart air conditioner at home, can Rabbi Ariel answer that it is prohibited? Absolutely not. In order to say that it is prohibited, he must anchor himself in an existing source and perhaps also persuade the questioner of his interpretation of that source. He may argue that such activation involves building, kindling, or kneading, but he cannot prohibit it because it empties the Sabbath of content. That is not a valid halakhic argument unless you are the Sanhedrin and are establishing a new rabbinic law here. At most, the rabbi could tell the questioner that this falls into the halakhic category of uvdin de-chol (which is problematic in its own right, as noted above). But, as stated, I understand Rabbi Ariel's remark as a claim that this should be prohibited within the very framework of the labor prohibitions themselves, and that is a problematic thesis on its face.[11]

The Jewish Cabinet of Lies

My friend Nadav Shnerb pointed to this phenomenon and similar ones in the conduct of halakhic decisors and in the public's relation to their words, in his article 'The Jewish Cabinet of Lies'.[12] He brings there several examples of rabbis who present a halakhic position that has no basis in authorized sources, and thereby are essentially lying.[13] The phenomenon is broad and many-sided, and therefore I cannot go into it here in detail, but Rabbi Ariel's remarks above provide a good example of one of these types. To clarify the claim further, I will bring here a few examples (out of very many).

Very often couples come to a rabbi asking him to give them permission to postpone pregnancy. But a rabbi cannot do that.[14] He can show them that there is a halakhic path that permits this under certain circumstances. But people's perception is that the rabbi 'gives them permission,' as if by the very act of ruling the rabbi creates the permission. The question they ask is what permits them to do it. They do not see this as turning to an expert who knows the field and tells them what is to be found in it. The rabbi is a kind of magician who, by his very utterance, brings the permission into being. At most the rabbi can tell the couple that under certain circumstances this is permitted, and the decision should of course be theirs, and theirs alone.[15]

Another example is the accepted policy in Lod to read the Scroll of Esther for two days, both on the 14th and on the 15th. The former city rabbi, Rabbi Natan Ortner, discussed the matter in his responsa, Yad Natan (part II, in a separate pamphlet devoted to this issue). First, he shows that Lod is certainly a city walled since the days of Joshua (surprising, but that apparently is the case). He then explains that nevertheless one should read the Megillah in Lod for two days, as though there were a doubt here. He cites a number of important decisors who supported this position. His main reason was that the public would not understand and would not accept a ruling to read only on the 15th, since they had become accustomed over the years to think that Lod was an unwalled city, or at most doubtfully walled.

One may debate the logic of this ruling. For example, one may wonder why it matters that the public accept it. Whoever does not accept it need not accept it, and good luck to him. But perhaps one could say that this would undermine the standing of the rabbi and the standing of Jewish law in general. Perhaps. But here I want to ask a different question: is the statement that one should read on two days not a lie? After all, there is no genuine halakhic justification for reading on two days. Strictly speaking, one should read the Megillah in Lod only on the 15th. True, someone from a walled city who read on the 14th has fulfilled his obligation, and under Rabbi Ortner's instruction one who read on the 14th does not recite a blessing on the 15th, so there is no halakhic problem with that instruction. But there is still room for the claim that this is a lie, because Rabbi Ortner presents an incorrect halakhic position. He could have said that strictly speaking one should read only on the 15th, but anyone who cannot hold out and wants to preserve his (mistaken) custom may read on two days (and not recite a blessing on the second day). That is the correct law for this case. But when he says that one should read on two days, he is saying something incorrect. That is not the law. The problem with such an instruction is not that he causes people to violate a prohibition, but that he presents his position as though this were the law itself: Lod is doubtfully walled, and therefore one should read on two days. In this example too, the motivation—which in this case is also possible on the practical plane—is presented as a halakhic statement. But motivation is not a halakhic mechanism. Not everything that is desirable is correct. It is not within the authority of a decisor or rabbi to determine that one should read on two days. As we have seen, he can at most say what the law says, but not innovate law, for he is not the Sanhedrin. I do not see why a resident of the city who wants to read only on the 15th should obey this instruction (I even know personally someone who does this, heaven forfend).

Similar to this example, Rabbi Ariel's instruction too does not cause people to violate a prohibition. At most we will act stringently and refrain from operating electrical appliances in a smart home even though strictly speaking this is permitted. But there is still interpretation or legislation (an enactment or a decree) that was done without authority. Unlike Rabbi Ortner, who ruled only for the city of which he was the rabbi, Rabbi Ariel presents this as law for the public at large, and that is a blunt overstepping of a decisor's authority. I should again note that it is not clear to me what exactly the meaning is of the rabbi's statement that 'this must be prohibited': does he himself rule it prohibited? Or is he calling on rabbis to prohibit it? Or perhaps he is calling for a gathering of all the decisors of the generation to agree to innovate an enactment or to reinterpret the primary categories of labor? Or perhaps he means to change the list of primary categories of labor? (That seems unlikely to me.) I do not know, but since the phenomenon is common and widespread (see examples in Nadav's article), I assume that it can also be interpreted in the sense that there is a mixing of motivation with mechanism, and a turning of what is desirable into what is taken to exist.

The Novel Suggestion of the Hazon Ish

It is very common in the books of halakhic decisors that they are asked about some act and answer that there is no way to prohibit it by Torah law, but since there is also no way to permit it, it is rabbinically prohibited. But a rabbinic prohibition too requires an authorized source. If an authorized court (the Sanhedrin or the Talmud) did not sit and prohibit it, then it is not prohibited, even if it would be very proper to prohibit it. This is again the difference between the motivation and the existence of a mechanism that implements it. The motivation to prohibit is clear, but it is not enough to generate a prohibition. In order to prohibit something in practice, a Torah-level or rabbinic-level source is required. A decisor who has no authority and on his own innovates a rabbinic prohibition simply because it is proper to prohibit, presents a false appearance (a holy lie). The statement that this is rabbinically prohibited is a halakhic falsehood. So how do the greatest decisors do this at every turn?

In the third volume of my trilogy (chapter thirteen, p. 203, note 49), I cited the words of the Hazon Ish who sensed this problematic point and proposed a very major innovation here, even if a characteristic one (Yoreh De'ah, sec. 150, subsec. 11):

Now, we find in the Talmud many deliberations regarding rabbinic decrees. At first glance this is difficult: legally, it is certainly permitted to plant another vegetable beside them (editor's note: see Jerusalem Talmud, Kilayim 3:6), and the matter is not fit to be forbidden unless a court sat and prohibited it. So if no court convened to issue a decree, why should it be forbidden? Rather, what the early Sages of blessed memory decreed, they decreed upon the root of the matter that leads to the expansion of the commandment and its safeguarding, and they entrusted the later Sages to judge the further details according to the guidance of analysis and the give-and-take of Torah law. And whatever appears to the Sage as properly understood within their decree is in truth what the original decreers sought and what their decree intended, for the decree of the Sages enters into the body of Torah law to instruct its extensions in accordance with the Torah's principles and understanding.

In simple words, he writes that a sage or decisor has the ability to innovate rabbinic law even without a session of an authorized institution that formally enacts or decrees it. It appears that he argues that the authorized courts in the past implicitly determined that any sage who sees a need to interpret or insert something further into their enactment may do so, and that the force of that will then apply retroactively by virtue of their own authority. This is how he explains the words of many decisors who write, without qualification, that some matter is rabbinically prohibited simply because it seems to them that it ought not to be permitted (and we have no source to prohibit it by Torah law), and this without citing any source whatsoever for an authorized court that enacted it.

His student, Rabbi Gedaliah Nadel (whose words I cited in the note there), writes similarly:

Rabbinic prohibitions include not only what was formally decreed and voted upon, but also matters that reason dictates are intended by the Torah in the commandment "you shall keep My charge"; these are forbidden of themselves even without the court having issued a decree about them…

It is important to understand the significance of this. If the new prohibition really fits smoothly as an interpretation of that earlier source (Torah-level or rabbinic-level), then there is no problem. This is ordinary interpretation, which is always done. But the Hazon Ish and his student here argue that even what does not enter the source (the enactment or decree) by ordinary interpretive means, if it is proper to include it because of considerations produced by the times, is as though it had been written there. What ought to be becomes, of itself, what is. This is a major innovation, because according to this there is in fact no problem of authority at all and no need for sessions of authorized courts. Whatever is proper to prohibit is already prohibited, and there is no need to enact or decree anything.[16] Almost anything can be brought in this way under an earlier source.

It should be noted that in the case of the smart home we are dealing with an even greater innovation. From Rabbi Ariel's words (if I understood his intention) it emerges that even the Torah itself left it to the sages of every generation to prohibit by Torah law whatever seems right to them. If so, one can indeed erase from Jewish law all the questions of authority, the difference between the Sanhedrin and another court, the cessation of ordination, the need for decisions by an authorized court (legislation or interpretation), and the like. These are innovations that even for me, a consummate innovator, are hard to accept. And when one hears them from the mouths of conservatives who criticize people like me for our innovativeness, it is all the more astonishing.

[1] And indeed there was a minority of decisors who permitted this in various ways (at least on a Jewish holiday), such as Rabbi Toledano and others. See also Wikipedia there.

[2] Specifically regarding the category of building, contrary to what many decisors think, I think (see, for example, here and here) that this is not a strained and agenda-driven ad hoc solution. There really is an element of building in the use of electricity (closing an electric circuit), and that belongs to the very essence of the category of building.

[3] Regarding the question of what counts as a significant labor, and what the criterion of significance is, see the introduction of the author of Tiferet Yisrael to his commentary on tractate Shabbat (Kalkhelet HaShabbat). There he offers two criteria: significant creation and distinctiveness (that the labor be distinguished from other labors).

[4] This is reminiscent of common criticisms of the principle of Ockham's Razor, which some view as nothing more than a conservative mechanism. We are called upon to adopt only theses that seem simple to us, that is, ones that fit what we currently think. There too the claim is that the criterion of simplicity begs the question. The argument is that 'simple' is nothing but what fits my current way of thinking. I do not agree there, since there are criteria for simplicity (the number of entities, the number of parameters, and the like. For example: a first-degree expression is simpler than a second-degree expression, because the latter has more parameters). But in the matter at hand the situation is far more ambiguous.

[5] Of course, such an argument cannot be raised against actions that are prohibited as a matter of law. Sabbath delight obviously does not override prohibitions of labor. But here, when the entire discussion concerns the character of the Sabbath, these are legitimate considerations and almost self-evident.

[6] I will only mention that the Talmud itself says that the distinction between winnowing, sorting, and sifting was made only in order to arrive at the thirty-nine primary categories that existed in the Tabernacle. Were it not for that consideration, all these should have been one primary category of sorting (see Shabbat 73b).

[7] This point came up in a discussion with my daughter Rivka.

[8] Incidentally, this lack of distinction causes damage in the struggle, because rejecting options to create food without causing suffering to animals causes the industry to continue using the accepted problematic methods. If people were promoting directions that involve no animal suffering and granting them legitimacy, more and more possibilities would be created for consuming food in such a way, which would greatly improve the situation of animals. The same is true regarding attitudes toward prostitution. There too, an absolute rejection of the phenomenon and an unwillingness to recognize a woman's right to decide to sell her body (although there too people use arguments about the suffering of women while being driven by entirely different motivations) leads to additional suffering for women. Instead of regulating the phenomenon, people reject it and prohibit it by law, and then it is done secretly and underground without any supervision or oversight and in more problematic forms (in terms of trafficking and abuse of women). As is known, the question of institutionalizing prostitution arises in the halakhic context as well, but this is not the place. The discussion here is intended only to illustrate the problematic results created by mixing different types of arguments.

[9] The criteria for that success are not always clear. In many cases they themselves are, of course, a function of one's value-based worldview.

[10] Here the connection to the topic of spurious correlations rises to the surface, a topic already discussed here more than once in the past (see, for example, in columns 1, 41, 92, 146, 151, 164, 256 and others). Spurious correlations stand in the background of most of what I write in this column.

[11] It can be justified specifically with respect to Sabbath labors as I suggested above (to define a new primary category), but as I explained there, I assume that Rabbi Ariel himself would not agree to change the list of labors and their derivatives in every generation.

[12] A file can be downloaded from his website. It is highly recommended (like all the other articles there). On this whole topic, see also chapter thirty-two in the third volume of the trilogy.

[13] On 'holy lies', see column 21.

[14] See on this in my article on birth control in Jewish law.

[15] In that article I also showed the implications of this matter for the proper mode of decision-making by halakhic decisors. See also chapter thirty-two in the third volume of the trilogy.

[16] For those with sensitive ears, there is here an echo of the debate between proponents of natural law and the approach known as positivism. See, for example, here.