Autonomy – Lesson 1

Table of Contents

• Tolerance, pluralism, and autonomy
• The authority of the Sanhedrin, Maimonides, and the Kesef Mishneh
• Doubt about facts, doubt about the law, and major-authority doubt
• The rule of the majority, the story of Rabbi Yonatan Eybeschutz, and the role of decision rules
• A critique of journalistic introductions and the presentation of the Maharshal
• The Yaavetz, the Vilna Gaon, and the obligation not to “show favoritism” in halakhic rulings
• The Shakh’s Takfo Kohen: a judge’s decision and the moment the doubt is “born”
• A story about judges and referring matters to the “great sages of the generation” as criticism of functional failure
• Terumat HaDeshen, the Shulchan Arukh, and the shift to a precedent-based approach
• The Maharal: the value of ruling from reason even at the price of error
• Tosafot Rid: “a dwarf standing on the shoulders of a giant” and the need to decide between disputes
• The Shakh on ruling against the majority of halakhic decisors and limiting the authority of the medieval authorities (Rishonim)

Summary

General Overview

The text draws a distinction between tolerance and pluralism based on whether other views are seen as legitimate truths or as errors that should nevertheless be tolerated. It links the only possible justification for tolerance to the value of a person’s autonomous action, even when that person is mistaken. From there it argues that even within Jewish law there is a value to autonomy, and the discussion focuses on the concept of major-authority doubt and its implications for the authority of earlier generations, the rules governing doubt, and the duty of a judge or halakhic decisor to reach a decision. Throughout the text, there is criticism of “mechanical” ruling based on precedents, majority, or non-essential hierarchy, and a position is presented according to which rules for deciding doubts apply only when one has no position, whereas when one has a position grounded in evidence there is an obligation to decide and rule accordingly.

Tolerance, Pluralism, and Autonomy

The text states that pluralism is a view of multiple truths, in which other opinions are regarded as legitimate because they are “just as right as I am,” whereas tolerance is a tolerant attitude toward other opinions “even though they are not right.” The text argues that a possible justification for tolerance rests on recognizing the value of a person’s autonomous action—that is, that a person should do what he thinks is right even if he is mistaken. From this context, the text moves on to examine how the idea of autonomy appears within halakhic decision-making.

The Authority of the Sanhedrin, Maimonides, and the Kesef Mishneh

The text opens with a discussion of the authority of earlier generations and states that, from the standpoint of Jewish law, the principled Torah-level authority is the authority of the Sanhedrin over its own generation by virtue of “do not deviate.” The continued validity for later generations depends on the fact that the law was not changed, or that the Sanhedrin of another generation accepted it. The text cites Maimonides at the beginning of the laws of rebellious elders, according to whom, regarding Torah-level law, “every religious court in every generation can change and interpret according to its own understanding, and it is not bound by earlier religious courts.” By contrast, in rabbinic law, a framework is required of “a religious court greater in wisdom and number.” The text emphasizes that the difference is not “repeal” but rather a different interpretation of the verse, and adds that a greater religious court is still required to permit “something enacted by formal count,” but it need not be greater than the earlier one in wisdom and number.

The text quotes the Kesef Mishneh’s difficulty with Maimonides: why do amoraim not dispute tannaim, and why do later generations not dispute the Talmud even after there is no Sanhedrin? The Kesef Mishneh is explained as arguing that “we accepted upon ourselves not to dispute,” meaning de facto authority rather than essential authority, and the text compares this to the authority of the Knesset as a legislative institution that is not immune to error. From here, the periods of Jewish law are presented, along with the experience of the “closing of periods,” in which later authorities tend not to dispute earlier ones. Alongside that, the text describes authority within a given period of central halakhic decisors such as the Mishnah Berurah, Arukh HaShulchan, Rabbi Akiva Eiger, and the Shulchan Arukh, which, according to the text, includes a substantive component of greatness and not merely formal acceptance.

Doubt About Facts, Doubt About the Law, and Major-Authority Doubt

The text describes a situation in which a dispute among medieval authorities (Rishonim) is treated by many as a doubt that activates the laws of doubt, such as “a Torah-level doubt is treated stringently, a rabbinic-level doubt leniently,” and “the burden of proof rests on the one seeking to extract property.” It distinguishes between doubt about facts, doubt about the law, and major-authority doubt, where there is a dispute between leading authorities such as Rashba and Maimonides. A position is presented according to which major-authority doubt is sometimes viewed as more severe, because supposedly “it cannot be decided” and “it is clear that both sides have justice on their side.” Later, a response is brought that emphasizes that one can hold that there is one truth “in Heaven,” but from the standpoint of Jewish law both opinions can still be considered legitimate to rely upon. From there, the text examines the meaning of legitimacy in relation to the search for “what is permitted,” and not merely “what is legitimate.”

The Rule of the Majority, the Story of Rabbi Yonatan Eybeschutz, and the Role of Decision Rules

The text brings the story of Rabbi Yonatan Eybeschutz and the priest concerning “follow the majority,” and interprets the answer as a serious distinction: one follows the majority only in a case of doubt, whereas when there is no doubt, the majority has no significance. The example of meat with a “certified kosher seal” alongside a majority of non-kosher stores illustrates that majority is a mechanism for decision when there is no knowledge or no position, not when a conclusion already exists. The text argues that rules for deciding doubts are meant for situations in which “I have no position,” and it criticizes works that skip over the question of whether there is any position at all and move straight to a technical discussion of the rules of doubt.

The text defines “doubt in Jewish law” as a fifty-fifty situation, and argues that high partial certainty is not doubt, because “in Jewish law we follow the majority.” Within this framework, it is argued that a position is not identical with absolute certainty, but rather with a practical conclusion that appears correct. Therefore, when a position exists, there is no need to activate the rules of doubt or to surrender to an external majority. The text rejects the assumption that when Rashba and Maimonides disagree, “it is impossible to express a position,” and declares that it will bring Torah sources that justify this.

A Critique of Journalistic Introductions and the Presentation of the Maharshal

The text warns against giving too much weight to book introductions as journalistic texts that can be sharper than the practical implementation in responsa. It presents the Yam Shel Shlomo in the context of its opposition to legal codes such as the Shulchan Arukh and the Rema, and describes its claim that a code that decides without reasons is like saying, “What are you, Moses our teacher?” From the Yam Shel Shlomo on Bava Kamma, a position is quoted according to which, since the days of Ravina and Rav Ashi, there is no obligation to rule like one of the Geonim or later authorities, but rather according to what is established by “conclusive proof” from the Talmud, the Jerusalem Talmud, and the Tosefta where there is no decision.

The text also cites the Yam Shel Shlomo in the second chapter of Bava Kamma, distinguishing between a passage that concluded with “let it stand unresolved” or with a refutation, where there is no right to intervene and resolve it, and a passage that was not resolved but in which it was not said “let it stand unresolved,” where “if one sage, even in our time, brings proof to resolve it, he has permission to do so, and we follow him.” From this it is argued that the authority of the Talmud mainly applies where it made a decision or established an unresolved ending, but where it left a dispute open, one may decide by means of proofs and reasoning.

The Yaavetz, the Vilna Gaon, and the Obligation Not to “Show Favoritism” in Halakhic Rulings

The text cites the responsa She’elat Yaavetz in the name of the Chacham Tzvi and the author of Chelkat Mechokek, who say that a person is not permitted to issue rulings until he has the power to “uproot and erase a paragraph from the Shulchan Arukh,” and explains this as making the authority to issue rulings conditional on critical and independent ability. The Yaavetz is presented as attributing to Maimonides the claim that in issuing rulings, “not even the power of the prophets is stronger than that of the sage,” and that a decision is made according to “the majority in number, or according to the force of the proofs as they appear to the eyes of the sage,” while stating that “we do not pay attention to the balance scale of the decision of an early or late composition where there are decisive responses.” The text also quotes Rabbi Chaim of Volozhin in Chut HaMeshulash in the name of the Vilna Gaon, that one must “not show favoritism in issuing rulings,” even “toward the rulings of our rabbis, the authors of the Shulchan Arukh,” and notes omissions and censorship in printed editions.

The Shakh’s Takfo Kohen: a Judge’s Decision and the Moment the Doubt Is “Born”

The text compares an autonomous approach attributed to the Shakh in the pamphlet Takfo Kohen with a precedent-based approach attributed to Kuntres HaSefeikot, presenting the difference as consistent throughout their treatment of the same questions. In the framework of the laws of seizure in a rabbinic-level doubt and in major-authority doubt, the text cites the Shakh’s reasoning that in a Talmudic unresolved case, the doubt was born at the time the Talmud was sealed, and therefore any later seizure is “a seizure after the doubt was born,” which is ineffective. But in a dispute among major authorities, “the judge has the power to decide from the Talmud or the halakhic decisors, even from his own reasoning.” The Shakh is presented as saying that even if an earlier judge did not decide, a later judge can decide, because “everything depends on the judge before whom the case comes,” and the moment the doubt is born is only when the judge reaches the conclusion that “he has no power to decide.” Until then, he could have decided, and there was no doubt.

The text concludes from this that the obligation to decide rests on the judge who is actually sitting in judgment, and not on the “great sages of the generation” or some external authority, and that even the historical existence of a dispute does not create a binding doubt unless the judge himself becomes uncertain.

A Story About Judges and Referring Matters to the “Great Sages of the Generation” as Criticism of Functional Failure

The text presents a case in which judges write that they think a woman is permitted, but they do not permit her because “until the great sages of the generation agree, we cannot decide for her,” and it describes this as an outrage indicating a failure to understand the role of a judge. It distinguishes between legitimate consultation that the judge himself undertakes and sending the questioner off to seek agreement, and argues that an appointed judge must decide on his own, even if he consults, just as a civil judge does not send litigants to “great legal scholars” instead of deciding the case. The text also cites, in the name of Rabbi Yogel in Netivot Yehoshua, a strong statement about “might makes right” as reinforcing the idea that a religious court has no option of “withdrawing” and is obligated to decide. It parallels the historical dispute over an appellate court in the Chief Rabbinate with the discussion of true authority in Jewish law as opposed to a modern appeals model.

Terumat HaDeshen, the Shulchan Arukh, and the Shift to a Precedent-Based Approach

The text points to a change of direction in the fifteenth and sixteenth centuries, presenting Terumat HaDeshen as one of the factors that turned “the halakhic ship” in a more precedent-based direction. From Terumat HaDeshen, section 52, it quotes the claim that when there is a dispute among major authorities, “I do not know according to whom the law follows,” and therefore “the law is to divide.” It is stated there that the doubt of a dispute among major authorities is not “real doubt” in the sense of factual ignorance, but rather a situation in which there is no one who can testify which opinion is the law. Therefore one divides, or applies other rules. The text explains that the Rema brings this as practical Jewish law, and presents the method of the Shulchan Arukh as a “mechanical” decision through the majority of halakhic decisors, rather than by deciding the substance of the dispute.

Against this, it is argued that when early authorities such as the Rif and Maimonides decide disputes left open in the Talmud, they usually do so through internal Talmudic rules or by finding another passage that assumes one of the views, so that the ruling is really attributed to the decision of the Talmud itself rather than to taking reasoned responsibility for the substance of the dispute.

The Maharal: the Value of Ruling from Reason Even at the Price of Error

The text cites the Maharal in Netiv HaTorah, chapter 15, as preferring a ruling derived from the Talmud, even when one “fears that he may not go on the path of truth,” over a ruling based on “one composition” without understanding the reason. It describes the teacher who rules according to his own intellect as “beloved to God” even if his understanding misleads him. The Maharal is presented as emphasizing the principle that “a judge has only what his eyes can see,” and criticizing walking “like a blind man on the road,” and the text clarifies that these words are aimed at halakhic decisors, not every individual. The text presents this as a reason for the value of autonomy, which does not depend on the claim that the later authority is necessarily more correct, but on the fact that there is an obligation to act according to one’s own conclusion even when there is a chance of error.

Tosafot Rid: “a Dwarf Standing on the Shoulders of a Giant” and the Need to Decide Between Disputes

The text cites Tosafot Rid, section 62, with a sharp declaration: “Anything that does not seem right in my eyes—even if Joshua son of Nun said it, I would not obey him,” together with a commitment to speak “before kings and not be ashamed.” Tosafot Rid is presented with the parable of “a dwarf standing on the shoulders of a giant” to explain how one can disagree with earlier authorities who were greater, because later scholars rely on the wisdom of the earlier ones and can therefore see farther. He states that if we do not discuss the words of the early authorities, then when “this one disagrees with that one, and this one forbids and that one permits,” there will be no one to rely on. Therefore one must investigate, analyze, and decide “which way the law leans,” just as the sages of the Mishnah and the Talmud did, when they contradicted mishnayot and established that “the law does not follow them.”

The text distinguishes between the reasoning of Tosafot Rid, which justifies independent decision-making because the chances that the later authority is right may actually be greater thanks to reliance on predecessors, and the autonomy-based reasoning according to which there is binding value in ruling according to one’s own conclusion even if it is uncertain and even if it later turns out to be mistaken.

The Shakh on Ruling Against the Majority of Halakhic Decisors and Limiting the Authority of the Medieval Authorities

The text cites the Shakh in Choshen Mishpat, section 25, as preferring Maimonides even against the majority of halakhic decisors when “in my humble opinion, the words of Maimonides are primary and compelled by the Talmud,” and as arguing that “we do not follow the majority of halakhic decisors where it appears plainly in the Talmud that the law follows the minority.” From this it is argued that the authority of the medieval authorities (Rishonim) does not turn their dispute automatically into a “doubt” that prevents decision, but at most creates an obligation where there is broad agreement—and even then not absolutely. The text ends by pointing out that even if one accepts the idea of the decline of the generations, there are still reasons to prefer autonomous halakhic ruling, whether from the standpoint of “a dwarf on the shoulders of a giant” or from the standpoint of the value of autonomy, while rejecting “frustration” as a halakhic reason and presenting it as merely a psychological motive.

I don’t remember right now where exactly I stopped last time. Basically, I think I began the discussion about autonomy, the importance of autonomy in Jewish law, and the motivation for dealing with it, or the context from which we got to this discussion, was the discussion of tolerance versus pluralism. And I said that the distinction between tolerance and pluralism is actually based on the fact that pluralism is an approach that says there are multiple truths, and I relate to opinions different from my own as legitimate because I basically think they are right just like I am. As opposed to tolerance, where I relate tolerantly to other opinions not because they are right like I am, but despite the fact that they are not right. And the question is why do that? And when I asked why do that, I said that the only possible answer is recognition of the value of a person’s autonomous action. Meaning, a person should do what he thinks is right even if he is mistaken. And last time I started dealing a bit with the question of autonomy in halakhic ruling, which is really a continuation of that same issue, in order to show that even within the halakhic world, the halakhic domain, the halakhic context, we see the value of autonomy. And here, in this context, I want to present it through the concept of a dispute among major authorities. What is a dispute among major authorities? So first of all, we need a short introduction. The introduction is something I think we touched on a bit, regarding the authority of earlier generations. From the standpoint of Jewish law, the only authority is the authority that the Sanhedrin has, in principle, over Torah-level law, over its own generation. Meaning, the Sanhedrin has the authority of “do not deviate” with respect to the people of its own generation. As long as the law was not changed, then of course that remains valid for later generations as well, unless the Sanhedrin of the next generation changes the law of the previous generation. So basically the authority is only over its own generation. The next generation can of course continue the matter, but that is its decision, and it can also choose not to. Maimonides says at the beginning of the laws of rebels, in the laws of Torah-level matters every court in every generation can change and interpret according to its own understanding, and it is not bound by previous courts. By contrast, in rabbinic laws, it has to be a court greater in wisdom and number. They wanted to strengthen and give stronger standing to rabbinic laws so that people would not come to treat them lightly; you see that many times in Jewish law. But in principle, as far as the core law is concerned, there is no authority. That is basically what Maimonides says. There is no authority of one court over other generations or over other courts; it has authority over the citizens who are its own citizens, meaning the people of its own time, who have to obey the Sanhedrin. If they enact a decree and he does what? A decree, and it doesn’t apply to future generations? Only if the next court agrees to it. But if the next court does not agree to it, then it will revoke it. But there is a requirement regarding decrees and rabbinic laws that it be a court greater in wisdom and number. Regarding Torah-level laws, it does not have to be greater in wisdom and number; any court in any generation can revoke previous laws. A court could arise today and decide that there are two primary categories of labor on the Sabbath, if it were a Sanhedrin, that’s what I mean. If there were a Sanhedrin and that were the conclusion it reached, that is what would bind us. It has no obligation or subordination to previous generations. Certainly, it’s not exactly the same thing. Meaning, there is interpretation and there is legislation, so if we say it is a matter of interpretation, then really it is some interpretation that stands until someone else interprets differently, but it’s not that they are revoking it. No, fine, that is exactly the point. That is why it does not need to be a court greater in wisdom and number. The reason why in Torah-level laws it does not need to be a court greater in wisdom and number is exactly this point: I am not revoking something a previous court established; I am interpreting the verse differently. In rabbinic laws, these are laws whose foundation is in the court—it is the court that established them—so if I want to revoke them I need to be greater. That is exactly the difference. But still, I can interpret the verses differently. True, on the essential level this is not called revoking. Now just to complete the picture, of course even a different interpretation of Torah-level laws still has to be done by a court. Meaning, it does not have to be greater in wisdom and number, but something established by vote requires another vote to permit it. Meaning, if a certain interpretation of a verse was established by the Great Court, then whoever overturns it must also be a court. The Great Court. He does not have to be greater in wisdom and number than the previous court, but he has to be the Great Court. Meaning, an ordinary person… What is the definition of a court here? The Sanhedrin? Yes, a Sanhedrin of seventy-one. Today this is not relevant, yes? A Sanhedrin of seventy-one. I am talking about the ideal regime, when all the institutions exist. Now from here the Kesef Mishneh continues there in the laws of rebels and asks about Maimonides: if that is so, why do we find that the Amoraim do not disagree with the Tannaim, and the medieval authorities do not disagree with the Amoraim, or we ourselves do not disagree with the Amoraim? We do in fact see some hierarchy according to which we are not willing to disagree with previous courts. And Maimonides says there isn’t such a thing—meaning every court in every generation can disagree with the previous court. With respect to periods when there was a Sanhedrin, that is not so difficult, because today we have no Sanhedrin, so we do not disagree. But in the period of the Talmud there already was no Sanhedrin. So the question is why do we not disagree with the Talmud? Even in the period of the Mishnah, apparently during part of the time there was no Sanhedrin, so why do we not disagree? So the Kesef Mishneh says that we accepted this upon ourselves—not to disagree. Meaning, there is such a mechanism, where we grant de facto authority. There is no such authority from the standpoint of theoretical Jewish law. Jewish law does not recognize the authority of previous generations over later ones, but later generations can accept upon themselves the authority of earlier generations. And once they decided that the Talmud has authority, then one does not disagree with the Talmud. So about this I mentioned, I think in another context, when I spoke about the fact that the Kesef Mishneh basically sees the authority of the Talmud not as essential authority but as formal authority. Meaning, the authority of the Talmud is not because it never makes mistakes, or because there are no mistakes there and they were supremely holy and prophets and possessors of divine inspiration. Rather, their authority is because we decided that they have authority. That’s all. They can make mistakes. Just as the Knesset can make mistakes, and apparently does so from time to time, and still we understand that like it or not, that is the legislative institution, and what they determine is what binds. Their authority is not essential; it is not because they are always right, but because it was established that this is the binding institution, and therefore I am supposed to obey it or heed it. The same goes for the authority of the Talmud. Now the question arises: what happens afterward, after the Talmud? So we know that in the history of Jewish law there are periods, and we mark certain periods on the halakhic or historical timeline. Yes, the Savoraim and the Geonim and the medieval authorities and the later authorities—roughly speaking, that is the coarse division. There is some assumption that people of a later period do not disagree with those of an earlier period. For example, later authorities do not disagree with medieval authorities, medieval authorities do not disagree with Geonim. Obviously here the picture is not as unequivocal as with the Talmud. Meaning, people do occasionally allow themselves to disagree. There are later authorities who disagree with medieval authorities; there are medieval authorities who disagree with Geonim. But still, broadly speaking, there is some notion that there is what is called the sealing of periods. A period has been sealed, and from then on there is some sort of authority. So that is the authority that somehow arose de facto after the sealing of the Talmud. The question is what is its status, how binding is it, how should we relate to that sealing? And the third type of authority is authority within a period. Authority within a period—for example, among the great later halakhic decisors: the Mishnah Berurah, Arukh HaShulchan, Rabbi Akiva Eiger, the great later decisors, and even the Shulchan Arukh. The great later decisors also acquired some standing such that people basically make claims that you cannot disagree with them. Meaning that what they said is binding. And here the authority is probably mixed, but there is also an essential element to it. Meaning, also because of their greatness, not only because we accepted it upon ourselves and that’s it. It is not only formal authority, but the claim is that they really were great halakhic decisors, and therefore it is not right to disagree with them. There is also, I think, a formal component involved, but still this is a third kind of authority. The question is what we do with this whole collection of authorities, how binding it is, and where that leaves the value I spoke about before, the value of autonomy. Let me say even more than that: suppose there is a dispute among the medieval authorities, two opinions among the medieval authorities. When there are two opinions among the medieval authorities, the accepted view today among many decisors and also in the public is that this is basically a doubt. It is a state of doubt, and therefore the laws of doubt apply here. Meaning, a Torah-level doubt is treated stringently, a rabbinic-level doubt leniently, doesn’t matter, the burden of proof is on the one trying to extract money from another, all the laws of doubt. And this is what is called a dispute among major authorities, as distinct from—there is doubt in reality, there is doubt in law, and there is a dispute among major authorities. Doubt in reality is when I don’t know a factual matter. There is a piece of meat in front of me and I don’t know whether it is forbidden fat or permissible fat, okay, or whether it is pork or beef. That is doubt in reality. I do not know what the reality is. There is doubt in law. Doubt in law is a situation where I know the facts but I do not know the law regarding those facts. Is the law such-and-such or is it such-and-such? I am in doubt. And then there is a dispute among major authorities. A dispute among major authorities means there are two opinions among important halakhic decisors, say among the medieval authorities, regarding this case. One says permitted, one says forbidden, and therefore it is basically treated like a kind of doubt—a dispute among major authorities. Quite a few decisors treat a dispute among major authorities as something even much stronger than all the other kinds of doubt. Because once there is one view of Rashba in one direction and Maimonides in another, then basically it cannot be decided. Clearly there is justice on both sides. Unlike other doubts, where the truth is one. Meaning, I do not know what reality is, or what the law is, but the law is one thing—I just do not know it. In a dispute among major authorities, there are decisors who want to argue that since Rashba said this and Maimonides said that, then there is no single truth at all, not merely that I do not know it. And therefore perhaps the laws of doubt here should be treated stringently even in rabbinic matters, or in a double doubt one should still be stringent if one of the doubts is a dispute among major authorities. There are all sorts of statements like that among the decisors. So I really want to deal a bit with a dispute among major authorities. Doubt in law is simply the result when the questioner doesn’t know the answer? Yes. He does not know the law in this case, but he is not lacking facts about reality. He simply does not know what Jewish law says about that reality. A dispute among major authorities is of course a private case of doubt in law. I am basically in doubt about the law, but I am in doubt not because I don’t know what it is, but because Rashba goes one way and Maimonides goes another. Yes, so it’s not doubt from lack of knowledge, it’s doubt in essence. A lack of halakhic knowledge. Yes, right. It could be that I have my own view, but Maimonides said this and Rashba said that, so what now? Okay. And when you say that a dispute among major authorities is more severe, it’s a graver doubt because there are two opinions being said and there is no one truth—what does it mean, no one truth? There is no single correct way, but according to what I said before, there is one truth, in the previous classes. Except that both opinions are legitimate. And since both opinions are legitimate, then I say you can act this way and you can act that way. So if I can act… You are not supposed to decide, unlike other doubts, where there are not two legitimate opinions, there is only one—you just don’t know which one it is. Okay, so if it is decided, for example by following a presumption in a doubtful case… That is clear, but when you say legitimate, I’m not looking for what is legitimate, I’m looking for what is permitted, I’m looking for the truth. Permitted. Right now I do not know what is permitted, but Rashba says this and Maimonides says that, and it is legitimate to rely on this and legitimate to rely on that. It’s not that both are right. When we get to heaven it may become clear to us that this one was right and that one was mistaken—maybe. What is the difference from the meat? Hm? What is the difference from the meat? With the meat, I don’t know how to act—what do you mean? It’s a doubt. Here there is no doubt. Here there is no doubt. Between Rashba and Maimonides there is no doubt. With the meat it is one way or the other until I know the reality. If I say that both opinions are legitimate but one is not correct—if there were a voice from heaven, one is not correct—then it’s very similar to the meat. There are two possible realities here; I just don’t know which one. I said: according to the approach of substantive pluralism, the difference is clear, because with two opinions there simply is no one truth in heaven at all. But even according to the approach I presented in previous classes, that there is a truth in heaven, from our standpoint it doesn’t make much difference, because from our standpoint both opinions are legitimate within Jewish law. And since that is so, there are those who would say—and in a moment I won’t agree with this—but there are those who say that since both opinions are legitimate, you are not supposed to, and probably also cannot, decide between them. Even though theoretically, when you get to heaven the Holy One, blessed be He, will tell you what. And because of that, the laws of doubt change. De facto it is as though both sides are saying something true. Even though perhaps in heaven there is only one truth. Okay, so through the issue of a dispute among major authorities I want to sharpen the idea of autonomy a bit, to examine the idea of autonomy. About this, I think I may have told the story last time about Rabbi Yonatan Eybeschutz, one of the stories about Rabbi Yonatan Eybeschutz and the priest. The priest asked him, why don’t you follow us? After all, it says in the Torah, “follow the majority,” and we Christians are the majority. So he told him: I follow the majority in a situation where I am in doubt. If I am not in doubt, I do not follow the majority. It sounds like a joke, but in truth it is a completely serious answer. Meaning, if we find a piece of meat in the street—I think I explained this—if we find a piece of meat in the street and there are nine kosher shops in town and one non-kosher one, all right? Sorry—nine non-kosher shops in town and one kosher one, okay? But the meat has an authorized kosher seal on it. So should I say the meat is non-kosher because most of the shops in town are non-kosher? I have no doubt. I know what this meat is. This meat is kosher. So what do I care that most shops in town are non-kosher? When is the majority of the shops relevant? When I do not know what the meat is. I found meat and I don’t know what it is. If I don’t know what it is, then we follow the majority. Okay? Therefore in a state of doubt I follow the majority; when I am not in doubt, why should I follow the majority? That is a serious answer, not a joke. Now, it becomes a joke because people, even in the halakhic sphere, do not apply it. Because what I basically want to claim is that rules for deciding doubtful cases—not only following the majority, but also a Torah-level doubt stringently and a rabbinic-level doubt leniently, and whatever else you want—all decision rules are rules intended for situations in which I have no position. If I have no position, then there are rules—what to do when I have no position, I am in doubt, should I go here, should I go there, Torah-level, rabbinic-level, burden of proof on the claimant, judicial discretion, might makes right, there are many decision rules, passive omission is preferable. There are all sorts of decision rules. But decision rules are intended to help me know what to do when I have no position of my own. But if I have a position of my own, I do not need decision rules for doubtful cases. All right? Meaning, your own position means confidence that you… I have—I think I know what the meat is. A moment ago you said when I have no doubt, and now you say when I have a position. For me that is the same thing. Why not? I think that in this situation, this is what is correct. Okay, I’m not sure. No, that is my position. No, no, doubt… no, no, I’ll explain. No. Doubt is not the opposite of certainty. In Jewish law, doubt is not like that. In Jewish law, doubt is fifty-fifty. Ninety percent certainty is not doubt; in Jewish law we follow the majority. When we speak of doubt in Jewish law, it is fifty-fifty. And that is the state in which I have no position. I have no position—it could be this way and it could be that way, and I am not even inclined to either side. Okay? A state in which I have a position does not mean that I am certain of that position, that I am sure I am right. That happens rarely. Fine, after all, how can I be a hundred percent sure? That cannot happen at all. Beyond any reasonable doubt, something like that, say. Fine, I’m saying not even that, not even that. And in Jewish law we follow the majority. If I have seventy percent, that is also good. In the shops too, when you are in doubt and there is a majority of shops, I follow the majority, even though that majority is seventy percent and not one hundred percent. But that is what you just said a moment ago about the Christians. Why? Because here you said the majority does not determine anything when I have a position, and now you say that in my position the majority does determine things. No, in my position the majority determines things for most people. First of all, I decide my own position according to my own considerations. Even if I have not decided with certainty, still that is my position. Once that position is mine, I don’t care what happens with the majority outside, just as I do not care what happens with the majority of shops even though I am not sure that this meat is kosher. Maybe the seal was forged. Fine, but I think that if there is a seal then it is kosher. Once I, from my standpoint, have reached a conclusion, I do not need decision rules for doubtful cases. Following the majority is a rule for deciding when I have no other way to decide. But if I have another way to decide, then I do not need it. Okay? So the claim I want to make is that even with respect to doubts of this kind, the most basic question a person needs to ask himself is first of all whether he has a position. And many works that deal with the laws of doubt simply ignore this stage. They jump straight in: okay, if there is a dispute among the medieval authorities then you do this and that; if there is a dispute among later authorities then you do this and that; and if it is like this… wait a second. First decide that you are in doubt. After you decide that you are in doubt, then let us see which rule is relevant to that doubtful situation. But somehow people just skip over that stage and go straight to discussing the laws of doubt. And I want to argue that if I have my own position, then I do not care about all these rules. These rules were intended for someone who has no position. And the earlier rulings? Same thing. I don’t care. No. I’ll get to that in a moment… but for now I’m saying it sharply. I’ll come back to that issue in a minute. There is a question: if there is a dispute between Rashba and Maimonides, how can I say that I am sure that Maimonides… Not sure—I said before, not sure. I think Maimonides is right. Why not? What, can’t you say that? You just said it yourself now—why can’t that be said? What is the problem? Why can’t one say that? Where does this assumption come from, that if Maimonides and Rashba disagree, then I cannot express a position? Where does that come from? Later today I will try to show you—since I am a well-known heretic—so today I will try to bring you sources you can rely on, so that you won’t think these are just my inventions. I will bring you major decisors who say this, not my inventions. But in the introduction to Igrot Moshe… Right, in the introduction to Igrot Moshe there, yes. But I am more interested in discussions found within Jewish law than in discussions in introductions. Introductions are another matter; I think we talked about that once. But that was what people were arguing about in relation to that class, where he took a position against the Chazon Ish and against this and that, and it was really… Yes. And that is exactly the point. Once people attack you and you are engaged in polemics, you have to be careful how accurate what you write really is, and how seriously you stand behind it. And as I mentioned once, maybe I’ll bring now in a moment the Yam Shel Shlomo. In the introductions he writes very sharply in favor of autonomy. That was in the context of his polemic against the Shulchan Arukh and the Rema. The Yam Shel Shlomo belonged to the camp of the Maharal and the Maharal’s brother, who opposed the Shulchan Arukh and the Rema, because they opposed legal codes. What does he tell me—this is permitted, this is forbidden—what are you, Moses our teacher? Tell me what you think, bring arguments, and let’s see whether we agree or disagree. He was unwilling to accept such codes that bring only rulings without reasons. So in the introduction, probably written in the context of that polemic, the Yam Shel Shlomo writes very sharp things about this obligation to rule autonomously and not follow earlier decisors. For example, in the introduction to Bava Kamma he writes this: since the days of Ravina and Rav Ashi, there is no tradition to rule like one of the Geonim or later authorities; rather, whoever’s words are fit because they are based on conclusive proof according to the Babylonian Talmud and the Jerusalem Talmud and the Tosefta, where there is no decision in the Talmud. And the earlier and later authorities do not interest me. Meaning, there is the Talmud, and the Talmud we accepted upon ourselves; the Talmud is the final authoritative text. Babylonian and Jerusalem Talmud, Tosefta, Mishnah—that’s it. From then on, whatever seems convincing to me, that is the law. I don’t care if it goes against all the medieval authorities. In what years is he writing this? Sixteenth century. The same thing within the work itself, in Yam Shel Shlomo in the second chapter of Bava Kamma. There he discusses a case where there is an issue not decided in the Talmud. Okay, the Talmud remained with two sides and did not decide. He says: and even though the Talmud does not decide, I have come to decide, says the Yam Shel Shlomo. Meaning, the Talmud did not decide; there is a dispute between Abaye and Rava, and I decide. Meaning, this is not between medieval authorities, not Rashba and Maimonides—he is talking about Amoraim and Tannaim. And then he says this: in a case of an unresolved question that was closed and left unresolved in the Talmud, and was not solved, no sage in the world has permission to solve it from a Mishnah or from a Baraita or from reasoning, for that would be like disagreeing with the Talmud of Ravina and Rav Ashi, and we of course do not disagree with the Talmud—just as one cannot resolve a refutation stated in the Talmud. If the Talmud says “this is a refutation” or says “let it stand unresolved,” that is the end of the discussion; we cannot intervene. But in many problems stated in the Talmud and left unresolved, if there were even one sage in our own time who brought proof to solve it, he has permission, and we follow him. Because since it was not stated “let it stand unresolved,” then it remains in doubt until its resolution becomes clarified for you. What is he saying? If the Talmud says “let it stand unresolved”—the literal translation is not related to Elijah the Tishbite—so when the Talmud says “let it stand unresolved,” the Talmud is saying: the issue stands, that’s it, it cannot go any further. Since the Talmud has authority, then even if you think you have proof or reasoning or something one way or the other—“let it stand unresolved,” no, the Talmud declared it a doubt. Where the Talmud says “refutation,” meaning it rejected one of the opinions—no, that one is off the table, and it ruled like the second opinion—again, we are bound by the Talmud. But in the overwhelming majority of topics, the Talmud does neither this nor that. It brings two opinions and there is no decision, no decision. In that case, you can look for a ruling against Rava in favor of Abaye, or vice versa. The Talmud did not find proof, but you found some. And if you found some, then rule according to what you think. And that is what he says. And again, I am not talking about Maimonides and Rashba; we are speaking about Amoraim and Tannaim. And what he basically wants to claim is that even the authority of the Talmud—which is certainly accepted authority, perhaps the last authority that was really fully accepted—does not exist where there are two opinions. If there are two opinions there, then you can decide like this one or like that one, and that is not called undermining the authority of the Talmud. Undermining the authority of the Talmud is only when it decided—either it decided that the matter remains unresolved, or it decided by refutation, meaning this one is right and that one is rejected. Where the Talmud itself did not decide, you do not have to say: ah, there is a dispute between Abaye and Rava, so a Torah-level doubt is treated stringently and a rabbinic-level doubt leniently. No. Enter the topic, look for what seems more reasonable to you, bring proofs, and reach a conclusion—and that is what you should do. What is new about this? Maimonides does this all the time, all the decisors do this. No, the decisors do not do this. I’ll get to that in a moment—but they don’t. Oh, and what about “let it stand unresolved”? What do you mean, what’s the problem? Why do you think that there too it would be impossible? No, with “let it stand unresolved” it is impossible, because the Talmud said “let it stand unresolved.” It means: here it stands, there is no proof. It positively declared that there is no proof—not that it said, “I am stopping the discussion,” but rather it declares: here there are no proofs. Now, I don’t know, maybe you will find a proof, but the authority of the Talmud is authority. Once the Talmud said “let it stand unresolved,” we do not intervene. And then you have to follow the rules. And then yes, the decision rules for doubtful cases. All right? Those rules were said about that, not about a case where there are simply two opinions. Think about two opinions among the medieval authorities or among the later authorities—maybe there I can decide, right? Now I began with the Maharshal because in his introductions he is very forceful. Introductions are polemics. But when you go into his responsa—there are responsa of the Maharshal—they are simply fairly standard responsa. He discusses medieval and later authorities, brings proofs this way and that, all in all the method of ruling is standard. He does not go nearly as far as he declares in the introductions. Here and there you can see something like what I mentioned earlier in Bava Kamma, which is already inside Yam Shel Shlomo and not in the introduction. But even Yam Shel Shlomo is a commentary on the Talmud. The responsa are practical halakhic rulings, and in practical halakhic ruling he works, all in all, quite conventionally. Therefore I think one has to be a bit cautious with words said in introductions or in polemical declarations, because there you express a principled position, but how it is implemented in practice usually gets moderated. Okay? But let’s see a few more such sources. Rabbi Yaakov Emden, in the responsa She’elat Yaavetz, writes this: do not be astonished even regarding the great ones, and I heard from my father the Gaon—that is the Chacham Tzvi, yes? The Yaavetz was the son of the Chacham Tzvi, of blessed memory—in the name of the author of Chelkat Mechokek, of blessed memory, that a person has no right to issue rulings until he has the ability to uproot and erase a section from the Shulchan Arukh. Before that, you are not a halakhic decisor. Unless you can uproot a section from the Shulchan Arukh. To issue a ruling or to decide? To issue a ruling now? Yes, to issue a halakhic ruling. Not to teach—today “to issue instruction” means to teach. No, he is talking about issuing a halakhic ruling. It is like, you know, Bar Kokhba tested his fighters to see whether they could uproot a cedar from Lebanon, right? While riding a horse. So in Jewish law they test them by whether they can uproot a law from the Shulchan Arukh. I don’t know what is harder. And the saying of Maimonides is known, that in matters of ruling, even the power of prophets is not stronger than that of a sage. Rather, one follows the majority count or the force of the proofs according to what appears in the eyes of the sage. And that was always the custom of the sages of the generations: they pay no attention to the scales of authority of an earlier or later composition where there are decisive rebuttals. Where I have proofs, where I have a position of my own, with all due respect to medieval authorities, later authorities, this authority, that authority—I am supposed to do what I think. My own position. There are no laws of doubt and no authorities where I have a position. Where I have no position, there are rules of doubt. Another place: Rabbi Chaim of Volozhin, in Chut HaMeshulash at the end of section 9, writes this: indeed, concerning the Torah, about which it is written “truth,” surely our eyes are directed only to the truth. And I was warned about this by my holy teacher, the holy one of Israel, our master the great Gaon, the pious Gaon from Vilna, of blessed memory—that is the Vilna Gaon—not to show favoritism in legal ruling. And here it stops in the common printings. But in the original there is an addition; in the book Aliyot Eliyahu in a note there is an addition. He writes there as follows: not to show favoritism in legal ruling, even to the decisions of our rabbis, the authors of the Shulchan Arukh. Yes, there is a whole framework of omitted passages—halakhic censorship. It is hard to find such quotations; even if they existed, they were apparently deleted. In any case, that is what he writes. Similarly, I will now show you something from within halakhic discussion itself. The Shakh wrote a pamphlet called Tokfo Kohen. This is a discussion of the laws of doubt. There are a number of works like this, such as Shev Shema’tata, Kuntres HaSefeikot, Tokfo Kohen, and so on. There is a very fundamental difference between Tokfo Kohen and Kuntres HaSefeikot in policy. Meaning, I think that beyond the laws of doubt, they work from different conceptions, and you can see it as a red thread throughout the whole work. The Shakh has an autonomous conception, and Kuntres HaSefeikot has a conception that relies more on precedents. Now I brought one expression of this here, but one can show it in many places because they deal with the same questions. Therefore it is very interesting to compare the answer one gives with the answer the other gives. And when you make those comparisons, you will see it is always like that. The Shakh goes in the autonomous direction, and Kuntres HaSefeikot goes in the precedent-and-rules-of-doubt direction, where yes and where no. So look here, for example: he asks why seizure is effective in a dispute among major authorities. I defined earlier what a dispute among major authorities is. There is a dispute among important decisors—say Maimonides and Rashba—whether seizure is effective. In ordinary doubtful cases, seizure is effective. Why is seizure effective? Because once I seized it, I am the possessor. And when there is doubt, we go with the possessor. But seizure is effective before the doubt arose. If a person seizes after the doubt arose, seizure is not effective. That is Tosafot at the beginning of Bava Batra there, with the stones that fell from the wall. So the stones fell onto my territory, and the question is whether that is seizure after the doubt arose or seizure before the doubt arose. In any case, seizure is effective in doubtful cases unless it is after the doubt arose. Because after you come to court—“one of them seized it in front of us,” as the Talmud says—once you come to court, you cannot now seize. The legal process has already begun. It doesn’t work that everyone can keep seizing all the time. You can seize and then come to court. Then you are the possessor, and now we discuss whether to remove it from you or not. You cannot seize after the doubt arose. So he says this: there are three reasons why in a dispute among major authorities seizure is effective even according to the view that in an unresolved Talmudic question seizure is not effective. There is a dispute about whether in an unresolved Talmudic question seizure is effective or not. This is connected somewhat to what I said earlier, the claim that in such a case it is not a doubt. In that kind of unresolved question, both sides are true, and therefore seizure is not effective. It is like a dispute among major authorities according to certain views. Now the Shakh here wants to argue that no, a dispute among major authorities is different from an unresolved Talmudic question. Even according to the views that in an unresolved Talmudic question seizure is not effective, in a dispute among major authorities it is effective. And he has three reasons there. The second reason is this: in an unresolved Talmudic question, since it can never be clarified, for no person can ever solve it, since it has already stood unresolved since the time of the final redaction of the Talmud, then the doubt arose immediately at the time of the final redaction of the Talmud, and therefore every seizure is considered seizure after the doubt arose, as he wrote in section 87. He says that since in an unresolved Talmudic question the doubt arose with the sealing of the Talmud, when they established that unresolved question, then any seizure in our time is seizure after the doubt arose. The doubt arose for Rav Ashi and Ravina in Babylonia. So seizure after the doubt arose is ineffective. But what happens in a dispute among major authorities? Which seizure are you talking about? Say seizing the money. If we have an argument about, I don’t know, a boat, then I take the boat from you by force and seize it. In a case where the Talmud leaves the matter unresolved—is that what he’s talking about now? Yes, yes. So he says that there it would not help, because the doubt arose at the time when the Talmud established it as unresolved. And if you seize it now, that is already seizure after the doubt arose. Seizure after the doubt arose is ineffective. But in a dispute among major authorities—that is why I am bringing this—but in a dispute among major authorities, since the judge has the power to decide from the Talmud or the decisors, even from his own reasoning, we spoke about decisive proofs—even from his own reasoning, like one of them. And even if this exact case had once come up before and the judges then were unable to decide—say this exact same case came before another court a hundred years ago and they did not decide, they remained in doubt, just like in the Talmud where there were two opinions and they could not decide—if it now comes before another judge, he can decide. I owe nothing to the judge from a hundred years ago, nor to the Amoraim. For everything depends on the judge before whom the case comes. And as Maharshal wrote in chapter “How the Foot Damages,” section 1—that is the Maharshal we read earlier. As we wrote above in section 82 in the name of the responsa of the Geonim. And it is obvious that this is so. Therefore, wherever he seized it, it is considered that he seized it before the doubt arose. In a dispute among major authorities, the seizure is seizure before the doubt arose. Why? Because when did the doubt arise? Unlike an unresolved Talmudic question—now. At this very moment, when it comes before the judge. If you seized it beforehand, it is seizure before the doubt arose. But there was already doubt before, in another court, you said a hundred years ago. That doesn’t matter. The doubt from my standpoint is the doubt that I doubt. That is exactly the point. I do not care that this doubt exists in the world. When I am the judge in a certain case and there are two opinions, the moment the doubt is born is the moment I conclude that I am in doubt. I do not care that a hundred thousand people were in doubt about it before me. And if the Talmud itself did not decide and has two opinions in it, that does not matter at all. The moment the doubt is born is when it comes before me. And why? Because I could just as well have decided and said that I am not in doubt. I hold like Maimonides, or I hold like Abaye against Rava. So I decide. Meaning, since I can decide, the birth of the doubt is the stage at which I decide not to decide, that I have no position. And therefore seizure in a dispute among major authorities is seizure before the doubt arose. Is this Rabbi Chaim of Brisk’s opinion or the Shakh’s? No, no, this is the Shakh. The Shakh? Yes. For if the judge were to decide like one of them, he would have the power to rule so. It follows that the doubt was not born until the moment the case came before the judge and he had no power to decide. At the stage when he reaches the conclusion that he has no power to decide—that is the moment the doubt is born. And this distinction seems to me clear and true. Then later he brings proof for this from a responsum of Maharibal—it doesn’t matter, he has more… This appears in other places in Tokfo Kohen as well, this conception. In any event, his fundamental conception is that as long as something was not decided, even in the Talmud—if something was not decided, it is an open doubt. And the moment the doubt is born—“decided” also includes “let it stand unresolved,” yes? “Let it stand unresolved” is also a decision. If it was not decided, the moment the doubt is born is the stage when it comes before me. And why? Because at the moment it comes before me, the authority to decide is in my hands. And it does not matter if there is a dispute of Amoraim, medieval authorities, later authorities, whoever it may be. The judge sitting in judgment is the one who has to decide. There was once—I may have told you this—some case of a woman where they asked me to annul the marriage, and it became some media issue afterward, there was a bit of noise. So while dealing with that subject, I looked around a bit at what the rabbinical courts and rabbis say on that issue. And there was one case that left me literally shocked. Some woman came before the judges, and of course they open with lofty speeches about how the distress of this unfortunate woman has come before us, and we are obligated to sit and exert ourselves in order to permit her, to look for what can be done. And what was the conclusion? One after another, three very important judges—some of whom are now already on the Supreme Rabbinical Court, at the time I think they were on the regional court—well, it seems to us that she is in fact permitted, but the question is very difficult, and until the leading sages of the generation agree, we cannot decide it. And that was that. Now, I think it is legitimate if you want to consult. No problem—that is legitimate. Go consult. But what do you mean by saying, “I think she is permitted, but I will not permit her because this is a matter for the great sages of the generation”? You are a judge sitting in judgment. If you are a judge sitting in judgment, you are the one who needs to make the decision yourself. In such a case, he should hand in the keys. He is a judge—what is this? If you are the judge in this case, you have to make the decision yourself. You want to consult? That is perfectly fine. Everyone makes his own decisions however he wants. You can speak to whoever you want, you can look in books. In the end, the obligation to decide is yours. And the leading sages of the generation are irrelevant, and who you are and who they are is irrelevant. It’s simply not relevant. If you think someone is greater than you and you want to speak with him, speak with him. But what did they do? They sent her to talk to the leading sages of the generation. Have you ever heard such a thing? It is just unbelievable. A person comes to court, and the judge says to him: listen, this is a difficult legal question, it is a matter for legal minds greater than I am. Go find out from—I don’t know—from legal minds greater than me. You are the judge sitting in judgment—for this they are paying you! It is outrageous. I asked—I have a friend who is a judge—so I spoke with him a little and asked him: tell me, is this common? Do people do such things? “Yes, from time to time, such things happen.” What do you mean? It is outrageous. Meaning, you are sitting there—this is exactly what the Shakh says here. If you are sitting in judgment, you are the one who has to decide. Not Maimonides and not Rashba and not Rav Ashi and not Rabbi Elyashiv and not whatever rabbi you want, no matter who, no matter who in your eyes is greater—the obligation to decide is yours. And if Rabbi Elyashiv is in doubt, then he is in doubt. You must decide according to what seems right to you. And if you go talk to him and he convinces you that it is a doubt, fine, then you are in doubt. Legitimate—he convinced you that this is not a simple case but a doubtful one. But you have to bring your own position. If you have a position, you cannot say, “I am not deciding because this is a matter for the great sages of the generation.” There are responsa of important decisors where they say, “What I am saying is novel, and only if two more decisors agree with me can it be done.” So there are two things here. First, if they themselves would send it to two more important decisors, that would be perfectly fine, instead of sending the questioner. “I say this; now you go check.” That is one point. Second, when you send a question to the rabbi of some city or something like that, he doesn’t owe you anything. So you decided to ask him—so what? But here we are talking about judges appointed to a court, for whom this is their authority, on behalf of the state. You have to sit there, and they are supposed to make the decision. It is not the same thing. Yes, it is not the same thing. When you ask some Torah scholar, you ask him what the answer is—he can also not answer you. Is he obligated to answer you? He doesn’t work for you. You understand? So he can decline to decide, he can say, “I decide, but find two more who agree. I don’t have the energy to deal with this.” Fine, okay. I think it would be better if he himself asked the other two, but no matter, I can accept something like that. But here we are speaking of a judge sitting in judgment over a case that comes before him. There is an obligation to decide. Rabbi Yogel talks about this in Netivot Yehoshua. He writes there, when he discusses “might makes right,” there is a passage in “might makes right” in Bava Batra, and there is some contradiction between a responsum of the Rosh and the rulings of the Rosh about what “might makes right” means—whether it is a decision or a withdrawal. That is a major question among later authorities. Among other things, he writes there very strongly about this matter that a court has an obligation to decide. There is no such thing as withdrawal. What does withdrawal mean? A court cannot withdraw. A court must decide. It can decide that the situation is doubtful, but you must decide. There is no such thing as withdrawing. Can’t it say that it is not within its authority and refer it to a higher authority? Let it refer, no problem, there is the higher rabbinical court. Fine, if they had said, listen, it is not within our authority, go there—that would be one thing. But he did not send her to the higher rabbinical court; he sent her to the leading sages of the generation. Do you know who the leading sages of the generation are? The leading sages of the generation are those sitting in Bnei Brak and Jerusalem, not the Supreme Rabbinical Court of the Rabbinate. And that is really true—that they are not the leading sages of the generation. You understand? So there are people who do not understand their role as a judge. The judge has to decide. That is his role. If he wants consultation, let him consult—but he has to consult, not those who come before him. You want to claim that there is no hierarchy within Torah law—you don’t want to say there is. First of all, it is obvious that there is no hierarchy. When the Chief Rabbinate was established, there was then a demand—Bentwich was here, he was the representative of His Majesty’s Government—they wanted to establish the Chief Rabbinate, and the British demanded that there be an appellate instance. Without that they were unwilling to recognize the authority of rabbinical courts. And there were fierce arguments about this—you can see it, you can look it up online. There were fierce arguments about whether one can have an appellate court in Jewish law. There is no such thing as appeal. A case comes before a judge; he is the one who decides. There are no appeals. What is this business of appeals? There was the Great Court sitting in Jerusalem when it sat there, “if a matter be too difficult for you, between blood and blood, between judgment and judgment”—it is not that you go and appeal. You are not appealing anything. If the judge in the lower court does not know, he goes to the Great Court and the Great Court tells him what to do. But that is not an appeal. That is exactly the same as the leading sages of the generation whom you go consult. But you go and consult them, and you—you are the one who has to make the decision, and if you need their help, you go ask them for help. This approach was the common approach until the modern era. But afterward—yes, after the Shulchan Arukh, it seems to me that that was perhaps the turning point, or—it began a bit earlier. I think Terumat HaDeshen is one of the first who changed the course of that ship, that halakhic ship. And there in Terumat HaDeshen we really do find statements of the sort more common today: a dispute among major authorities, and what to do when we cannot decide. Here, for example, I will read to you from section 52, Terumat HaDeshen section 52: the major authorities disagree about it above, and since we do not know according to whom the law follows, the rule is that they divide. So one must divide. And I wanted to say that all these cases where we say “they divide” are because they are real doubts. But a doubt that comes from a dispute among major authorities is not a real doubt. If neither side seized it, then we should say “might makes right.” Why? For what I said before: because in a dispute among major authorities this is not a doubt, but both sides are right. Once both sides are right, then one can seize, regardless of whether it was before or after the birth of the doubt, as I said before, because this is not called doubt, but both sides are right. Doubt is where one side is right but I don’t know which. All right? If both sides are right, then seize—what’s the problem? If you seized it, that is fine, because there is Rashba in your favor, even if Maimonides is against you, or vice versa. If so, we must distinguish between doubt in law that comes from a dispute among major authorities and doubt in law that comes from a question left unresolved in the Talmud. For there the major authorities wrote that they divide. But in our case, which is a dispute among major authorities, this reasoning is not relevant, for who can testify to us that the law follows this authority or that authority? We have no ability to decide in a dispute among major authorities. Who can decide between Maimonides and Rashba? Who can tell us that the law is this way or that way? After all, if they disagreed, then who are we? Therefore we require a division here. So you see here a conception—if you look at the whole responsum—that when there is a dispute between significant decisors, we do not have the right to decide. And this is already the conception that today, I think, is more accepted, following the Shulchan Arukh: this precedent-based conception, in the struggle I mentioned earlier between the Yam Shel Shlomo and the Maharshal on one side, and the Rema and the Shulchan Arukh on the other. It seems to me that the Rema and the Shulchan Arukh won, unfortunately. What period is he? Fifteenth century, I think. Before the Shulchan Arukh, yes. The Rema even cites this Terumat HaDeshen as law in the Shulchan Arukh. Does that mean that in the end they divide half and half? Not only in the laws of doubt? Yes, that is what he wants to claim—that there are sides this way and that—but I only wanted to speak about his underlying conception. But the Shulchan Arukh itself does this—okay, we have three decisors that were established? Yes, but because one of the rules is following the majority, not his own independent decision. He does not say this because that is what he thinks, but because there is a law to follow the majority. Once there are many decisors, we go by the majority. That is a mechanical decision. And here I come back to the earlier question: isn’t that what was always done? What I said in the name of the Maharshal. After all, how does Maimonides rule law? Or the Rif? How do they rule? There are many disputes left open in the Talmud. How did Maimonides and the Rif rule in them? Didn’t they also rule like the Yam Shel Shlomo? They decided whose opinion is the law, and that is what they established. That is not true. In the overwhelming majority of cases, when you look at the reasons—even among the medieval authorities—at why they ruled as they did, the reasons are not of the type “his words seem right to me and his don’t,” or “I have proof like this one or proof like that one.” The reasons are either rules: Rabbi Shimon and Rabbi Yehuda, the law is like this; Rabbi Yochanan and Reish Lakish, the law is like this—meaning rules that already appear in the Talmud itself. So the Talmud decided, not they. Or they find another sugya that simply assumes one of the opinions. If there is another sugya that casually assumes one of the opinions, then the assumption is that apparently the law was decided that way. Again, this is not a ruling because I think that is right and I have proofs against the other side. No—it is proof that the Talmud ruled. But no, it is not proof by whose force I rule. Of course there are disputes among decisors; it is not mathematics. So obviously judgment is involved here, but the judgment is not judgment on the substance of the dispute—who is right in the dispute. The judgment is in the question whether I can prove that the Talmud itself ruled like Abaye and not like Rava. That is the question. So yes, there are disputes about that and sometimes there are arguments one way and another, but in most cases the arguments are not arguments that touch the content of the disagreement. Not arguments about who is right, or against whom there is a Baraita or a Mishnah, or who reads the Mishnah more awkwardly or less awkwardly. Rather, the debates are about whether I can derive from the Talmud a rule showing me that the Talmud itself ruled—not me. And here there are disputes. Some say you can derive that from the Talmud, some say you cannot derive that from the Talmud. But the basic idea is that we really do not enter those disputes themselves. Okay. Yes. Aren’t you encouraging communicative chaos? Yes, to a large extent, yes. I plead guilty to the facts but not guilty to the charge. Your method sounds nice in a time when there was no internet and no printing press, but once I can instantly check your ruling and compare it to a hundred and fifty contradictory rulings—okay, that is chaos. What do you mean chaos? On the contrary—what do you think? No, not what I think—how does an ordinary citizen who is not a Torah scholar… No, wait, and we’ll get to that. I mean to get to it: to whom am I speaking when I talk about autonomous halakhic ruling? Whom am I talking about here? No, but even if there were autonomous ruling among the fairly mediocre people of today, okay, still I, as a citizen exposed to all the opinions, keep seeing one thing here and another there—how can this whole thing remain Orthodox? So what do you want to do instead? Like what is done in the world—not with great success—in courts, where they rely heavily on precedents, not because that… Who relies on them? You also don’t know the precedents. The Torah scholar knows the precedents, but the ordinary citizen doesn’t, so what will he do? The method creates a kind of uniformity in that everyone relies on precedents. But there are precedents here too. They rely on reasoning; you are constantly generating such things. You erase all disagreements, but you won’t succeed—after all, there are always disagreements. I don’t want to erase them. I think the system must strive for uniformity in the eyes of the citizen, because otherwise he feels he is playing Russian roulette. No, you can create artificial uniformity, but there are in any case many opinions in Jewish law, whether you agree with me or not. So I can always find opinions in either direction if I search well enough, and today there are databases—you can’t erase that, it won’t help. Okay, I don’t know if I am increasing chaos, I’m continuing—meaning yes. I am not bothered by that at all. And I will get there, I will talk about it later, yes—who is being discussed here. So there is some kind of shift in the fifteenth-sixteenth century, where the halakhic conception really does move more in the precedent direction, and the author of the Shulchan Arukh and the Rema play a central role in that. But if I really accept—and I think I brought this Maharal last time, right?—that in the eyes of the Holy One, blessed be He, one who rules from his own reasoning, even if he is mistaken, is preferable to one who rules from books, even if he is correct. Better that you violate the Sabbath based on your own decision, than cling to the Mishnah Berurah like a blind man groping in the dark—yes, he calls it all sorts of things there—without understanding, and you will probably be right, because the Mishnah Berurah was a great Torah scholar. But still there is value in ruling yourself. That is what… I brought that Maharal, didn’t I? Let’s read it now. The Maharal, by the way, is part of that same dispute of the Yam Shel Shlomo, as I said, against the Shulchan Arukh and the Rema. In Netiv HaTorah, chapter 15, he writes this: for it is more fitting and more correct that one should rule from the Talmud, even though there is concern that he may not follow the path of truth and may not rule the law truthfully, so that the ruling may be according to truth—nevertheless, the sage has only what his intellect yields and understands from the Talmud. And when his understanding and wisdom mislead him, even so he is beloved to God when he rules according to what follows from his intellect. And the judge has only what his eyes see. And this is better than someone who rules from a single composition and does not know the reason for the matter at all, walking like a blind man on the road. You walk like a blind man on the road, but you get to the right place because you rely on the Mishnah Berurah, not on some ignoramus. Fine. This wasn’t written about every single person. At the moment I am speaking about halakhic decisors. Later I may broaden it or qualify it. Now, in the conception I have described so far, there are two possible ways to interpret it. One possibility—and perhaps both appear here—there is a responsum of the Rid, Tosafot Rid, one of the earliest medieval authorities, section 62. He writes this: first of all, I respond to my master concerning what you wrote to me, that I should not disagree with the great rabbi, our teacher Isaac, of blessed memory—the Rif, yes? Far be it from me to do such a thing, and the thought of disagreeing with him never entered my mind. It always starts with polite language at the beginning, and then we’ll see what comes after. But… Yes, exactly. And what am I? One flea, as translated, compared even to his student, not compared to the Rif—even more so in speaking after the king. For what can I say after the king? But this I maintain: anything that does not seem right in my eyes—even if Joshua son of Nun said it—I would not obey him. Next sentence—and that is a quotation from the Talmud, by the way, in tractate Chullin. In Chullin one of the Amoraim says there: by God, even if Joshua son of Nun said this, I would not obey him. You are saying such nonsense that even if Joshua son of Nun had said it, I would not obey. By the way, it’s an interesting remark why he didn’t say Moses our teacher, but in any case Joshua son of Nun is enough. And I do not refrain from speaking about him according to what appears to me, in my limited understanding. And I apply to myself this verse: “I will speak of Your testimonies before kings and will not be ashamed.” And my witness in heaven is faithful forever, that even where it seems to me that I speak well in agreeing with any words of our earlier rabbis of blessed memory—heaven forbid that my heart should become arrogant and say, “my wisdom too stood by me.” Rather, I judge myself by what the philosophers discussed. And then he brings the famous parable: I heard from the sages of philosophy that they asked the greatest among them and said to him: do we not admit that the earlier ones were wiser and more intelligent than we are? And do we not admit that we speak about them and contradict their words in many places, and the truth is with us? How can this be? He answered them and said: who sees farther, the dwarf or the giant? Clearly the giant, because his eyes stand in a higher place than the dwarf’s. But if you place the dwarf on the giant’s shoulders, who sees farther? Clearly the dwarf, because his eyes are now higher than the giant’s. So too, we are dwarfs riding on the shoulders of giants. Because we have seen their wisdom, and we build upon it, and by the power of their wisdom we became wise enough to say whatever we say—not because we are greater than they are. And if because of this we were to say that we should not speak about the words of our earlier rabbis, then when we see that this one disagrees with that one and this one forbids and that one permits, on whom shall we rely? Can we weigh mountains in scales and hills in balances and say that this one is greater than that one, and nullify the words of this one because of that one? Rather, all we can do is investigate their words, for these and those are both the words of the living God, and sharpen and delve, by the power of their words, to see where the law inclines. For that is what the sages of the Mishnah and Talmud did: later authorities never refrained from speaking about earlier ones, deciding between them, and overturning their words. Both deciding and overturning. And how many Mishnah rulings the Amoraim overturned by saying that the law does not follow them. And greater than all of that is that wisdom is greater than the wise man. And there is no sage free of error, for perfect wisdom belongs only to God alone. There is an interesting point here. The image of the dwarf on the giant’s shoulders is well known. And what he is basically saying is similar to the idea that the law follows the later authority, yes? We are standing on their shoulders, we already know their reasons too, and we can think on the basis of their reasoning, but they did not hear our arguments. So we have a built-in advantage. We are dwarfs on the shoulders of giants. So even though they were greater than we are, it can still be that we are more right. Okay? And basically the whole move of Tosafot Rid is that the reason we allow ourselves to disagree with the earlier authorities despite the fact that they are greater is because of this model of the dwarf on the giant’s shoulders. Because in the end there is a greater chance that we are right and they are not. Because we are sitting on their shoulders. I want to make a different claim. His claim is that we do this because we are right. What I am claiming is something else, and I think that is what the Maharal is saying too. What the Maharal is saying is that we do this because we do it even though we may be mistaken, even though it is likely that we are mistaken. But he says there is value in it. Exactly. That there is value in autonomy. Tosafot Rid does not speak of it as a value of autonomy. Tosafot Rid simply says: look, we are stuck. There are two opinions. What should we do? We have to determine which opinion the law follows. Who will determine it? They are already dead. Fine. That’s okay. In a Torah-level doubt be stringent, in a rabbinic-level doubt be lenient—what’s the problem? Now he also says this as part of “wisdom is greater than the wise man.” Yes, that leans somewhat in your direction. Meaning, I do not recognize the sage as authority. Wisdom. Of course. But his foundation is that because I think I am right, therefore the law follows me. He does not accept, I think, the conception I said earlier—the conception I said earlier that… Exactly, that even if I am mistaken, I still have to do what I think. There is value to autonomy. So I am saying that this is an interesting statement and it obviously does diminish the authority of the earlier authorities, but not for the reason I am speaking about. Not because of the value of autonomy, but because he thinks that in the end we come out more right. And that is also related to the culture of the period. Meaning, today, this language of autonomy and of everyone being able to tell himself and the world what he thinks—that is very accepted in Western culture. Maybe there was also the beginning of that in that period? Could be. Could be. Processes like these have complex explanations. It is certainly possible that this is part of the explanation. It could also be the reverse. The reason may have been this, and the culture is the result. I don’t know. Many things are possible. Right. I have no problem with that statement, but in the end it seems to me that one can see that until the end of the Middle Ages, the conception definitely was not precedent-based. There, the culture was not like that. The conception was autonomous. And the precedent-based conception actually began with the beginning of the modern era. So I don’t know whether there is full correlation with the parallel cultural changes. But in any case, for our purposes, what I want to argue is that the Maharal—and yes, all of Yam Shel Shlomo, and that whole camp of the autonomists—say something like Tosafot Rid, but not for his reason. Not because we are right and therefore we should follow what we think rather than the earlier authorities, but because we are obligated to do what we think. Or, in other words, what I said before: I use the laws of doubt when I am in doubt. If I am not in doubt, I do not use the laws of doubt, even if I am wrong. But that is what I think. And the judge has only what his eyes see. Right now I am speaking about a judge, someone capable of issuing rulings. I said that we will still get to the question of to whom these things apply. The Shakh too I am almost sure I read last time. The Shakh says, indeed in the view of many decisors—the Shakh in Choshen Mishpat section 25—and especially the Rosh in a responsum, who wrote that one should not rule like Maimonides but rather like Tosafot, who brought known proofs for their words. And the Beit Yosef himself ruled later on not like Maimonides, and so he ruled in the Shulchan Arukh later at the beginning of section 95 anonymously. But what can I do, for in my humble opinion the words of Maimonides are primary and compelling in the Talmud. And the proofs of Tosafot and the decisors who challenged him, in my humble opinion, are not proofs, as I shall explain. And obviously one does not follow the majority of decisors where it appears clear in the Talmud that the law is with the minority. He is speaking about the greatest medieval authorities, and most of them go with Tosafot against Maimonides. And he says: what can I do? I have proofs from the Talmud in favor of Maimonides. So what do I care about the majority? I am not in doubt. If I were in doubt, I would follow the majority. But I am not in doubt. I am telling you that Maimonides is right. Who invented this whole mechanism you mentioned earlier—that Geonim don’t disagree with Tannaim, and medieval authorities don’t… No one has a copyright on it. History somehow made it happen. It is a collective creation. A collective creation. But again I say—and I will come back to this—the claim about the authority of the medieval authorities is at most where they all agree. And even that is not absolute authority. But where there is a dispute among the medieval authorities, I am not obligated to treat it as a matter of the laws of doubt. I can decide who is right. This does not contradict the authority of the medieval authorities, just as even with respect to the Talmud they say that although no one disputes that the Talmud has authority, still if the Talmud did not decide, I can enter in with proofs and decide. As the Shakh says, as the Yam Shel Shlomo says, as they say… But today there is a sort of frustration, yes, long after the famous expulsion from Spain. No, that is why I say: even if I say I accept the idea of the decline of the generations, there are still two reasons not to follow precedents. Either the reason that I am a dwarf on the shoulders of a giant—still a dwarf, but on the shoulders of a giant—or the reason that says there is value to autonomy. Therefore yes, I am mistaken and woe to me, but what can I do? This is my position, and I must do what I think. All right? That does not undermine the decline of the generations. It says: despite the decline of the generations. All right? Good. You can hear the frustration of these people, because they really want to move forward, they want to bring the Torah into the world and apply Jewish law, and they are bound up. Yes, but frustration is not an argument. Frustration is psychology. Take a pill. Meaning, the question is whether we justify a halakhic position or a halakhic conception by arguments. Frustrations are irrelevant. They can be psychological motivations for why one searches, but in the end one has to bring arguments. And the claim that there is value to autonomy—that is the argument. What leads me to say it may be frustrations, perhaps, but that is psychology, not important for the halakhic discussion. All right? Frustrations can lead us to many places; that is not enough. Okay. And there is some trend that this happens, yes, with some sort of novel remnant, that there was a trend among the sages of Spain. There was a trend among the sages of Spain in the opposite direction. There is also a responsum of Ri Migash that says that it is always preferable to ask someone else and so on, Yitzchak. There is also that trend. And he doesn’t bring that Ri Migash as a contradiction to the Maharal. But if you look at that Ri Migash more precisely—I wrote an article about it—then you see that there is no contradiction at all. Ah, right. But there is also the trend of codification, also of the Rif himself and of Maimonides. Correct. And there was also controversy around codifications, both that of Maimonides and that of the Shulchan Arukh. Exactly. But it could be that there really was a completely different direction among the sages of Spain in that period. There was a difference. The Ashkenazim were more precedent-based in the Middle Ages. That is well known. In what sense—ad hoc? No, no, more precedent-based. There are also the words of Rashba, where he cites Ri Migash. The Rosh—I don’t know whether he is Ashkenazi or Sephardi, you know, he moved. No. That’s a question. No, he moved from France to Spain. From Germany to Spain. But it doesn’t matter. The accepted view is that it was actually the Ashkenazim who were more precedent-based. After all, among the Ashkenazim there were many books of customs. Everything went by traditions. Among the Sephardim, it was autonomous ruling—there were hardly any books of customs. There were books of rulings, give-and-take on the Talmud, and decision. And the accepted view is that the Ashkenazim were precedent-based and the Sephardim were more autonomous. The books of customs are actually a bit later. That is also following the Black Death, and then Terumat HaDeshen comes too, which is basically to preserve the… No, no, I’m talking even before Terumat HaDeshen. Much earlier. I’m talking about the Raavyah, talking about many things. Rabbenu Yerucham. All those books of custom of the Ashkenazim. Okay. What else? All sorts of things.