Autonomy – Lesson 2

Table of Contents

• Pluralism, tolerance, and These and those are the words of the living God
• Justifying tolerance through the value of autonomy and the limits of the “radius”
• Halakhic examples of autonomy: the Ritva in Sukkah and “do not place a stumbling block”
• Mistaken in judgment versus mistaken in an explicit Mishnah-level ruling, and assumptions about error and authority
• Rabbi Eliezer, the segmented oven, and the limit of decision-making under “follow the majority”
• The authority of the Talmud as an agreed framework and not as a guarantee against error
• Beyond practice: the Rosh in Sanhedrin, Ba’al HaMaor, the Ra’avad, and the definition of “halakhic ruling”
• Printing, textual errors, and the tension between the validity of custom and its source
• Maimonides in the laws of rebellious elders, the Kesef Mishneh, and the Ra’avad: interpretation versus enactment
• The “inclined view” of the Geonim, interpretation of the Talmud, and the distinction between disagreement about the text and disagreement about the enactor
• Tradition, it was received as a Talmudic tradition, a law given to Moses at Sinai, and an eye for an eye
• The Ra’avad’s approach versus the Rosh’s approach: can one disagree with the Geonim
• The Rosh: binding authority applies only to the Talmud, and afterward there is freedom to build and to refute
• The Rema, Choshen Mishpat section 25, and understanding mistaken in an explicit Mishnah-level ruling as a mistaken transaction
• Bar hachi, the autonomy model, and the danger of anarchy
• Doubts, I can rely on this opinion for myself, and the distinction between the judge’s doubt and an “actual” doubt
• Training for halakhic decision-making and the criticism of rabbinical exams

Summary

General Overview

The text draws a distinction between pluralism and tolerance in the context of These and those are the words of the living God, and argues that the halakhic mainstream is monistic and tolerant, not pluralistic. It justifies tolerance not through a multiplicity of truths, but through the value of autonomy—that is, a person’s obligation to act in accordance with his understanding, and the obligation of others to respect that within certain limits. It then grounds this model through halakhic examples such as the Ritva regarding “do not place a stumbling block”, and the status of error in mistaken in judgment versus mistaken in an explicit Mishnah-level ruling, and arrives at a practical analysis of the Rosh in Sanhedrin and its implications for halakhic authority after the sealing of the Talmud, including the Rosh’s view that allows a sage who is a bar hachi to disagree with the Geonim and later halakhic decisors when the matter is not explicit in the Talmud. In the end, it emphasizes that the danger is practical anarchy, and therefore a bar hachi is not just anybody, and it suggests that rabbinical education and ordination should test judgment and decision-making ability, not just memorization of texts.

Pluralism, tolerance, and These and those are the words of the living God

The text explains that the dispute over These and those are the words of the living God may appear to imply pluralism, but it distinguishes between pluralism and tolerance. Pluralism is defined as a multiplicity of truths, while tolerance is defined as a respectful attitude or granting legitimacy to mistaken positions. The halakhic mainstream is defined as tolerant rather than pluralistic, because it assumes that there is one truth even if one still treats someone who is mistaken with respect.

Justifying tolerance through the value of autonomy and the limits of the “radius”

The text argues that if tolerance is not based on pluralism, then it is clear that the other side is mistaken, and so the question arises: why not prevent the mistake? The only justification offered for tolerance is the value of autonomy—that is, respecting the right, and even the obligation, of the other person to act according to his understanding. The text argues that there is a “radius” up to which one can relate tolerantly, and beyond that one cannot, and this is presented as an indication of the difference between tolerance and substantive pluralism, where there should not be such a radius.

Halakhic examples of autonomy: the Ritva in Sukkah and “do not place a stumbling block”

The text brings an example from the Ritva in tractate Sukkah regarding a situation in which a person causes his fellow to stumble in something that, according to the fellow’s own view, is prohibited, while according to his own view it is not prohibited, and asks whether this is permitted. The Ritva permits it on condition that one draws the other person’s attention to the situation, and the text explains that this permission differs from the ordinary case of “do not place a stumbling block”, where even if the person knows, assistance under certain conditions is still considered a transgression. The text concludes that this structure fits neither pluralism nor intolerant monism, but rather tolerant monism.

Mistaken in judgment versus mistaken in an explicit Mishnah-level ruling, and assumptions about error and authority

The text presents the concept of mistaken in judgment as something that sounds strange, but argues that there is a real possibility of making a mistake in judgment even when there is no explicit contradiction to a Mishnah. It brings an indication from the Talmud of going against the generally accepted line of the passage, and emphasizes that this is only an indication, while the main point is the very possibility of error in judgment. The text uses this distinction to describe a situation in which a person holds a position that is not an “explicit Mishnah-level ruling,” yet is still considered mistaken in someone else’s eyes, and nevertheless there remains an obligation to allow him to act according to his understanding within the framework of autonomy.

Rabbi Eliezer, the segmented oven, and the limit of decision-making under “follow the majority”

The text distinguishes between a dispute about personal conduct and a question of binding halakhic ruling for the public. It describes the story of Rabbi Eliezer’s excommunication as connected to his refusal to accept the ruling of the majority in the matter of the segmented oven, and emphasizes the principle of “follow the majority” and the existence of the concept of a binding “Jewish law.” The text weaves into this a distinction between more objective areas, where one can say “mistake,” and more subjective areas, where the question is what each person “ought to do.”

The authority of the Talmud as an agreed framework and not as a guarantee against error

The text argues that the halakhic authority of the Talmud is not necessarily because it is always right or free of mistakes, but because “we accepted its authority upon ourselves” as the framework of discussion. It presents the sealing of the Talmud as the basis for the boundaries of halakhic discourse, and emphasizes that the concept of “error” in Jewish law is tied not only to objective truth but also to an agreed framework of authority.

Beyond practice: the Rosh in Sanhedrin, Ba’al HaMaor, the Ra’avad, and the definition of “halakhic ruling”

The text presents the practical question of the limits of decision-making once there is no longer a supreme religious court, and sets against that the distinction between the borrowed use of the term “it was ruled as Jewish law” and its original meaning as a ruling of an authorized religious court in the Chamber of Hewn Stone, with laws such as do not deviate and the rebellious elder. It brings from the Rosh in Sanhedrin (chapter 4, section 6) a quotation from Ba’al HaMaor in the name of an earlier sage, according to whom “nowadays we no longer have mistaken in judgment,” because the laws are already decided from the Talmud or from the Geonim, and therefore everything is an error “in an explicit Mishnah-level ruling.” It also brings Ba’al HaMaor’s own rejection of this, according to which only an error established from the Mishnah or from the Talmud “explicitly and beyond doubt” is mistaken in an explicit Mishnah-level ruling, whereas rulings based on an “inclining opinion” or on the generally accepted line of the passage, which are not compelled, are mistaken in judgment.

Printing, textual errors, and the tension between the validity of custom and its source

The text notes that the original discussion takes place before the age of print, but explains that Ba’al HaMaor is not speaking about textual errors, but about the status of decision-making. It raises as a separate question a situation in which a custom took root because of a printing error, and asks whether the validity comes from public practice or from the author/printer, presenting this as a subtle ideological question.

Maimonides in the laws of rebellious elders, the Kesef Mishneh, and the Ra’avad: interpretation versus enactment

The text quotes Maimonides in the laws of rebellious elders, where he distinguishes between a religious court deriving a law from the Torah, in which a later religious court can overturn it without needing to be greater than the first, and the repeal of enactments, decrees, or customs that spread throughout Israel, where one must be “greater than the first in wisdom and number.” It brings the Kesef Mishneh, who explains this through the fact that later Tannaim dispute earlier ones and later Amoraim dispute earlier ones, and adds an explanation that the gap between Tannaim and Amoraim stems from a historical acceptance that from the day the Mishnah was sealed, one does not dispute it, and that from the day the Talmud was sealed, permission was no longer given to dispute it. It quotes the Ra’avad’s gloss on Maimonides through the example of “adorning the markets of Jerusalem with fruits,” which was repealed after the destruction, and presents the difficulty in assuming that the later court is necessarily smaller, because then the law requiring one to be “greater in wisdom and number” is emptied of content.

The “inclined view” of the Geonim, interpretation of the Talmud, and the distinction between disagreement about the text and disagreement about the enactor

The text sharpens the point that when one disagrees with an earlier generation’s interpretation of a text—such as the Geonim’s interpretation of the Talmud—the disagreement can be seen as a disagreement about the meaning of the text and not necessarily as a disagreement about personal authority. It suggests that Maimonides’ distinction between a Torah-level derivation and a rabbinic enactment reflects a substantive claim: in interpretation, the struggle is over the meaning of the Torah, whereas in enactment, the struggle is over the authority of those who enacted the ordinance, and therefore one must be “greater in wisdom and number.” It links this to the discussion of repealing enactments when “the reason has fallen away,” and to the understanding that sometimes, when the matter is “clear,” there is no formal game of counting authorities.

Tradition, it was received as a Talmudic tradition, a law given to Moses at Sinai, and an eye for an eye

The text presents a distinction brought by the Netziv in the introduction to Ha’amek She’elah between Rashi’s interpretation of it was received as a Talmudic tradition as a law given to Moses at Sinai, and Maimonides’ interpretation as an “ancient tradition” not necessarily from Sinai. It applies this to the question of an eye for an eye and raises the possibility that this is not necessarily a tradition from Sinai, but rather an interpretation that was accepted and became tradition. It describes how the Talmud deals with a view that interprets it literally, and sets up a strengthening statement of “we do not find” in order to support the conclusion, presenting this as a reinforcing statement and not necessarily a historical one.

The Ra’avad’s approach versus the Rosh’s approach: can one disagree with the Geonim

The text quotes the Ra’avad, who affirms the position that in a practical sense there is no longer mistaken in judgment, and states that one who erred regarding the rulings of the Geonim, such that if he had heard them he would have retracted, is considered mistaken in an explicit Mishnah-level ruling; and it is “close to say” that even someone who disagrees, based on his own reasoning, with the ruling of a Gaon is considered mistaken in an explicit Mishnah-level ruling, unless there is a “well-known difficulty.” It brings the example of Rabbi Shlomo Fischer, who calls a position of the Ran “a wondrous midrash,” to illustrate a category of a well-known difficulty that weakens formal obligation.

The Rosh: binding authority applies only to the Talmud, and afterward there is freedom to build and to refute

The text presents the Rosh’s ruling that one who erred regarding the rulings of the Geonim or the sages of the generation, such that had he known he would have retracted, is considered mistaken in an explicit Mishnah-level ruling and the judgment is reversed; but if their words “did not sit well in his eyes,” and he brings proofs accepted by the scholars of his generation, he may refute their words. It quotes the Rosh’s formulation: “For all matters not explained in the Talmud arranged by Rav Ashi and Ravina, a person may refute and build, even to disagree with the words of the Geonim.” It adds that the Rosh limits this by saying that when two great authorities have disagreed in a halakhic ruling, the judge may not rule “whichever way I please,” unless he is a great sage, gamir ve-savir, who knows how to decide on the basis of clear proofs; and if he is not a bar hachi, he does not extract money in a case of doubt.

The Rema, Choshen Mishpat section 25, and understanding mistaken in an explicit Mishnah-level ruling as a mistaken transaction

The text states that the Rema brings the words of the Rosh as binding Jewish law at the beginning of Choshen Mishpat section 25, and emphasizes that this appears within a framework usually understood as precedential. It explains that according to the Rosh, mistaken in an explicit Mishnah-level ruling in this context does not stem from the absolute authority of the Geonim or of a later halakhic decisor, but from the fact that the judge himself admits that had he known the information, he would have ruled differently, and therefore the ruling is a ruling made in error. It applies this also to the example of the Mishnah Berurah: retracting a ruling after discovering a source does not teach that the source is a “Mishnah,” but that the process lacked information.

Bar hachi, the autonomy model, and the danger of anarchy

The text interprets “Yiftach in his generation is like Samuel in his generation” not as an equation of Torah greatness, but as assigning authority within a generation, and uses this to ground a model of autonomy in which even someone who knows he is smaller than his predecessors is still obligated to rule according to what convinces him. It argues that a bar hachi is not someone equal in greatness to the medieval authorities (Rishonim), but someone who has reached the skill and maturity required for decision-making, and describes this as being “Zusha” and not “Moses our teacher.” It warns against hasty rulings and parallels the limits of tolerance to the limits of competence, so that someone who has not done the necessary work or has not yet matured is not fit for independent halakhic ruling.

Doubts, I can rely on this opinion for myself, and the distinction between the judge’s doubt and an “actual” doubt

The text explains that the laws of doubt, including Torah-level doubt requiring stringency and the mechanism of I can rely on this opinion for myself, operate when the judge has no decisive position and therefore remains in doubt. It brings the Tumim, who asks that I can rely on this opinion for myself undermines the meaning of halakhic ruling in monetary law, and describes solutions that seem artificial, including the claim that one can say I can rely on this opinion for myself even against the Shulchan Arukh. It brings Kuntres HaSefeikot, according to whom I can rely on this opinion for myself applies only when the judge has no position, but when the judge does have a position, he determines the law; and it explains that many doubts describe the decisor’s state of mind and are not necessarily doubts in halakhic reality itself.

Training for halakhic decision-making and the criticism of rabbinical exams

The text argues that the model of autonomous halakhic ruling is more of an educational model than practical guidance for every individual, because many people are “not yet Zusha.” It criticizes exams for rabbinic ordination and judicial ordination as tests of memorization—“to spit out by heart”—sources such as the Mishnah Berurah, Tur, Shulchan Arukh, and the commentaries, and presents this as a less important part of the rabbinate. It states that Jewish law is “what you decide is the Jewish law,” and that the exam system ought to test judgment, decision-making ability, and a reasoned position, even if the examinee does not agree with the examiners.

I just want to wrap up the topic, and this is kind of a quick overview of what we did. I spoke a bit about the dispute regarding “these and those are the words of the living God,” and how to understand that: as pluralism or as tolerance. And I said that on the face of it, it looks like pluralism, but despite the similarity between pluralism and tolerance, we have to distinguish between the two. Pluralism means a multiplicity of truths; tolerance means a respectful attitude toward, or granting legitimacy to, positions that are mistaken. And I think the halakhic mainstream, let’s call it that, is tolerant and not pluralistic. Then I moved on to discuss the question of how one justifies a tolerant attitude at all, because if the tolerant attitude is not based on pluralism, then obviously the other person is wrong. So if the other person is wrong and I’m right, then why relate to him tolerantly? Why not prevent the problem? And then I said that the only way to ground a tolerant attitude, or a tolerant approach, is the value of autonomy. Meaning: to respect the right, or maybe even the duty, of the other person to act in accordance with what he understands. And just as there is value in being autonomous, there is also value in respecting another person’s autonomy, and then even in a case where the other person is mistaken, and that carries a halakhic price, still, at least within certain limits, I’m supposed to allow him to err, or to respect his different position even though I think it’s mistaken. I said there is some radius up to which one can act tolerantly; beyond that, no. And that is one of the indications of the difference between tolerance and pluralism, because in substantive pluralism there shouldn’t be such a radius. If everyone is right, then everyone is right; I have no way to decide who is right and who is wrong. After that I moved on to discuss autonomy, and I wanted to show the halakhic conception of this notion. Namely, that autonomy is actually a very basic halakhic value, and even at the price of that autonomy leading to error—which is exactly the meaning of tolerance. That if someone has his own position, and it leads him to error, still we see this not only as legitimate for him to do, but as something he is obligated to do, and we are in fact supposed to respect that and not coerce him, even though we think he is wrong. Okay, so I brought various examples of the value of autonomy, of the idea that people should issue halakhic rulings as they understand. And among other things, if you remember, we had a somewhat more detailed discussion of the example the Ritva brings in Sukkah, when I cause someone to stumble in something that according to his view is prohibited, but according to mine is not. The question is whether I’m allowed to do such a thing. So the Ritva says yes, provided that I draw his attention to it. Meaning, that I tell him that this is the situation. I said then: if so, then apparently he threw out the baby with the bathwater, because if you draw his attention to it, then it’s his own decision—what does that have to do with you? But that’s not true, because in an ordinary case of “do not place a stumbling block,” even if the person knows, if you assist him in committing the transgression in a case of “the two sides of the river,” when the conditions are met, then you violate “do not place a stumbling block.” And here, because there is this dispute—he, according to his view, thinks it is prohibited, but I claim it is permitted—in that situation, if I draw his attention to it, I have not violated “do not place a stumbling block.” And I showed that this does not fit either pluralism or monism, only tolerant monism. That was one halakhic example. After that I spoke about an error in judgment as opposed to an error in an explicit Mishnah, and I said that the very fact that we speak about an error in judgment seems strange at first glance, because if it’s a matter of judgment, then in what sense is he mistaken? It’s his judgment, and I have my judgment—what does it mean to say “mistaken in judgment”? There are those who want to take—the Talmud brings an indication of an error in judgment as someone who goes against the commonly accepted passage, what is accepted in the world, what the anonymous topic says, and so on. And I said that in several places you see that this is only an indication; in truth, an error in judgment means exactly that—someone who erred in judgment. There is such a thing as a person being mistaken in his judgment. There are halakhic differences between an error in judgment and an error in an explicit Mishnah—whether a judge who erred has to pay or doesn’t have to pay. But one of the assumptions embedded behind this whole notion of an error in judgment is precisely that there can be a person who is not going against a Mishnah, he simply has a different judgment from mine, and still it is clear that he is mistaken. But on the other hand, yes, he’s mistaken, fine—but this is not an error in an explicit Mishnah; this is his position. So once that is his position, that is exactly the situation we’re talking about. Someone who, in my estimation, in my judgment, is mistaken, and nevertheless I say: okay, but this is not an error in an explicit Mishnah, and he can—he should—do what he understands. What happened in the story with Rabbi Eliezer, when they put him under ban? He has his own opinion. No—there’s a difference. There is a place where Jewish law has been decided. When there is a dispute and the majority is against you, then they count a vote, and if the law was decided in accordance with the majority, then you have to accept the majority opinion. There is a principle of “follow the majority.” And there the dispute was not specifically about how Rabbi Eliezer conducted himself in his own house. The question was what should be ruled as Jewish law. And Rabbi Eliezer was unwilling to join the view of the Sages even though they were the majority regarding the segmented oven. So fine—that certainly, I’m not denying the existence of the concept of Jewish law. There is halakhic ruling; that’s obvious. Fine, I’ll talk about that a little more today too. Meaning, there are areas that are objective, where you can say this is error, and there are things that are more subjective. Right. Let’s say “error” is already a mild statement—that everyone should act this way. Is that necessarily because it’s true? So I already spoke about that, but maybe I’ll mention it a bit today too: for example, the authority of the Talmud, which we accept as having halakhic authority that one does not dispute, is not necessarily because the Talmud is necessarily correct, or because everything there is always true, without errors. Rather, it is because we accepted upon ourselves the authority of the Talmud; that is the framework of discussion. And therefore what the concept of “error” means—what do we mean by it. Okay, so what I want to do today, basically, is bring this a little more down to practice and see things that actual halakhic decisors write regarding Jewish law itself—so what should be done in practice—and then add a few more comments to illuminate it. I’ll begin with a source, perhaps the central source for this discussion, and that is the Rosh in Sanhedrin, chapter 4, section 6. And there the Rosh deals with the laws of an error in judgment. These discussions usually arise around an error in judgment versus an error in an explicit Mishnah, because first of all one has to define the difference between an error in judgment and an error in an explicit Mishnah. If something is written in the Shulchan Arukh, is that an error in an explicit Mishnah? Or not? And may I dispute the Shulchan Arukh? Is that an error in judgment? So where does it stop? At Maimonides, yes? At the Talmud? At the Mishnah? Where exactly? What is called an error in judgment and what is called an error in an explicit Mishnah—which is of course an expression of the question I’m asking here. At what point has the possibility of discussion or dispute already been closed off? So as I said earlier, when there is the Great Court that ruled in a certain way—after all, halakhic ruling in the original sense is the Great Court. That is what is called halakhic ruling. Today we use the term “halakhic ruling” in an extended sense, and we think that even what is written in the Mishnah Berurah counts as having been decided as Jewish law. There is no basis for that. Meaning, “decided as Jewish law” means when there is an authorized court, the Great Court, which decided that this is the law. And about that, of course, there is the law of “do not deviate” and of the rebellious elder, someone who reaches the level of legal instruction and disputes it. That is the concept of halakhic ruling in its original sense. Since for many years we have had no ordained sages and no authorized institutions, the use of these concepts has been somewhat broadened—sometimes, in my opinion, broadened too much—but one has to understand: it does not really fit the original meaning of these things. In any case, the question the halakhic decisors discuss is: what counts as saying that the law has already been decided? In other words, from when is the possibility of debate or disagreement closed? So the Rosh writes as follows: “The Ba’al HaMaor wrote, of blessed memory: I heard in the name of a great sage among the sages of the generation before ours, that nowadays we no longer have an error in judgment, for all the laws are decided in our hands, either from the Talmud or from the Geonim after the Talmud.” The Ba’al HaMaor is one of the early medieval authorities (Rishonim), and when he speaks about generations before him, he is of course speaking about the Geonim. Okay? So when he looks at halakhic ruling, from his perspective it is the Talmud and Geonic literature. Geonic literature is generally concise rulings, responsa. It’s not like Maimonides or the Shulchan Arukh, but brief responsa with a bottom line—meaning, what the law is. That’s why everyone calls him “the Gaon.” They want to copy the Ba’al HaMaor’s attitude. Do you know what Rabbi Benedict said about that? He said: they’re all geonim, but they don’t know Rashi and Tosafot—they never learned Rashi and Tosafot. Good. Okay, so he says that since all the laws in our possession are decided from the Talmud and from the Geonim—good. So if everything is decided from the Talmud and from the Geonim, then as a result everything is really an error in an explicit Mishnah. That is the Ba’al HaMaor’s claim. This is an interesting comment, by the way, because there is a dispute among the medieval authorities (Rishonim) as to what counts as an error in an explicit Mishnah. So what does that mean? Who determines what counts as an explicit Mishnah? So the Ba’al HaMaor determines? The Ba’al HaMaor certainly is not a Tanna or an Amora, right? Now if I dispute him on this very point itself—what counts as an error in an explicit Mishnah—may I dispute him on that? If so, then what is the meaning of everything he says? Because the Rif understands, and does he dispute the Rosh? Yes, the Rif, yes—but not the Geonim and the Talmud. Yes, so there is an error in an explicit Mishnah, and there is an error in judgment. You know, it’s like what I once mentioned about the Chazon Ish: after all, who gave the Mishnah Berurah the status it has today? In Lithuania they did not rule according to the Mishnah Berurah; they ruled according to Arukh HaShulchan, Chayei Adam—in other words, the Mishnah Berurah did not have that status in Lithuania. It had status in Europe, yes; it had status in the Land of Israel. And who brought it to that status? The Chazon Ish, right? The Chazon Ish, in a famous letter—but that is only an expression—wrote that the words of the Mishnah Berurah are like words that issued from a firmly established chamber of instruction, as if they had come forth from the Chamber of Hewn Stone. Okay? Yes, and of course the Chazon Ish—we know, after all, books are published with the rulings of the Mishnah Berurah wherever the Chazon Ish disputes him, and then the Chazon Ish is a rebellious elder. Meaning, if the Mishnah Berurah is the Chamber of Hewn Stone, then the Chazon Ish, who disputes it, is a rebellious elder. So what does that mean? Sometimes you make a very strong statement, but in practice you too understand that it’s not really so. It’s not an error in an explicit Mishnah. Wherever I don’t disagree, it’s an error in an explicit Mishnah. Fine, okay. So one has to understand: halakhic statements are statements that one has to be careful not to understand too literally, yes, exactly as they are said, word for word. Certainly when they are not written in a halakhic text—there, in the Chazon Ish’s letters. Fine, in letters you write all kinds of things; that’s not a halakhic text. Here it is stronger, because here these are halakhic texts—both the Rosh and the Ba’al HaMaor. That’s what I wanted to say, because all this is before the invention of the printing press, right? Meaning, printing was not common. Obviously—all the medieval authorities (Rishonim), the Rosh too, before—all the medieval authorities were before that. Right, right, printing is the end of the fifteenth century. Right—but there’s also this extra confidence that there won’t be errors and that everything is still, as it were, in manuscripts here and there. No, he’s not talking about textual errors. He’s not talking about textual errors. If you discover that there are mistakes in the wording there, by accident, printing mistakes—he has no problem with that; it’s not that he is attached to the printed wording. But he says: if Maimonides said something and that is how it was decided as Jewish law and that is how people practiced—or not Maimonides, the Geonim, which today would all be printed and all that—meaning, there were errors. And that already is a more subtle discussion: what happens if the thing did take root, yes, entered in, everyone practices that way, but in the end it became clear that still it was because of some printing error? Okay, so fine, that’s already a harder question. Because the question is whether the force of the thing is because everyone practices that way, in which case why should I care whether it was because of a printing error, or whether the force of the thing is because of the one who printed it—but then I say, fine, there’s a printing error, he didn’t print that. Okay, so there’s a bit of an ideological question there. In any case, the Ba’al HaMaor says—yes, the Ba’al HaMaor says this in the name of one great sage from the previous generation, not in his own name—that nowadays there is no longer any error in judgment; everything is an error in an explicit Mishnah. Meaning, the concept of an error in judgment has basically been emptied of content. “And I,” says the Ba’al HaMaor—that is, I, the Ba’al HaMaor—“do not find these words convincing. Rather, anyone whose error is not demonstrated from the Mishnah or from the Talmud explicitly and beyond doubt is not an error in an explicit Mishnah but rather an error in judgment.” He says: anyone where you can prove against him—even if you can prove it from the Talmud and the Mishnah—but he does not accept it, meaning, you have a good proof but not a conclusive one, not a proof that compels him to retract. If you remember, I think I mentioned Nahmanides’ introduction to the book Wars of the Lord, where he writes there that “the wisdom of our Torah is not like astronomy and mathematics, whose demonstrations are conclusive.” Meaning, the proofs there are logically and mathematically necessary. In Jewish law it is not like that. When you bring a proof—what? Maimonides also said this regarding halakhic matters versus matters from the world of physics, so to speak. He says that if we learn something today and tomorrow scientists come and say it isn’t true, then it isn’t true. But if we— No, but Nahmanides’ distinction is the opposite. Nahmanides’ distinction says the opposite, namely that astronomy and mathematics have conclusive demonstrations—that’s certainly true—and with the words of our Torah, in our proofs and our give-and-take, this is not mathematics. I think this way, he thinks another way. Maybe I’m wrong, maybe he’s wrong. I bring proofs, but a proof is not a demonstration. Proof and demonstration are not synonymous terms. Someone may want to call it a demonstration, but it’s not a demonstration in the logical sense. Okay? But the point is that what happens is that science itself, that body of knowledge, also changes and is replaced. Right, an outdated conception of science, fine, but that’s how Nahmanides understood science. He thought that astronomy and geometry—or mathematics, anyway—had this kind of solid certainty; as for mathematics, in principle there shouldn’t be errors. But in science there are errors—it is built into the scientific process that there are errors; we talked about that at the beginning of our meetings. But that’s how Nahmanides understood it. Nahmanides understood it as knowledge that was apparently as solid as mathematics—the fact is that he doesn’t distinguish between mathematics and physics. So the Ba’al HaMaor does not accept the words of that sage he cited, and he says that only someone whose error is demonstrated from the Mishnah or from the Talmud explicitly and beyond doubt—that alone counts as an error in an explicit Mishnah. If not—if it comes from the Geonim, or even from the Talmud and the Mishnah and the Gemara, but not in a way that is beyond doubt—then that is not an error in an explicit Mishnah; at most it is an error in judgment. Is that the Ba’al HaMaor or the Rosh? That’s the Ba’al HaMaor. The Ba’al HaMaor cites “I heard from a sage”—all this is the quotation that the Rosh brings in the name of the Ba’al HaMaor. How does it begin? The Ba’al HaMaor brings one sage from the generation before him who said such-and-such, and the Ba’al HaMaor himself disputes that sage. And in a moment we’ll see that the Rosh says a third thing. “And what the Geonim ruled after the close of the Talmud by decisive judgment, and not from a clear and settled halakhah from the Talmud—it has the status of the accepted passage, and whoever errs in it errs in judgment and not in an explicit Mishnah.” Meaning, someone who goes against the rulings of the Geonim—if the Geonic ruling is based on inclination of judgment, what is called a leaning opinion, meaning that that is how it appeared to them in reasoning, not by a clear proof from the Talmud—then in such a situation, one who disputes them is at most mistaken in judgment and not in an explicit Mishnah. And notice there too that his indication is that it “has the status of the accepted passage.” I already said that this expression appears in the Talmud as an indication of an error in judgment: that when you see that the world practices in a certain way—meaning that the Geonim give a reasoned opinion, an inclined judgment—what prevents you from disputing them is not because they are certainly right but because they are the ones who instructed the law and today we practice in accordance with them. So when you act against that, you act against what has been accepted by the community as Jewish law; therefore you are called mistaken in judgment, not because their judgment is necessarily correct. Those are two different things. Sorry, we said that the Talmud is a convention within the radius that everyone has to follow if they want to remain within the radius. Now you’re introducing another consideration, and we also said that halakhic ruling in the sense of the Chamber of Hewn Stone or the Sanhedrin no longer exists, not even in the period of the medieval authorities—so why does he call it a mistake at all? The very fact that he calls it a mistake—relative to the Talmud or to the Geonim? Now, now—someone who disputes the Geonim or the Talmud? The Geonim. Okay. So on the face of it, it seems that what the whole world accepted as authority also— No, but that is what he says. But he brings here: “And what the Geonim ruled after the close of the Talmud by decisive judgment and not from a clear and settled halakhah from the Talmud.” Meaning, the question is: why is this called a leaning opinion? A leaning opinion means either that they innovated a new law, or that they said this is what the Gemara says. So from our standpoint, what is written in the Gemara is not just a deficiency of the Geonim. Wait, let me finish this. You’re saying they’re not in consensus, all the Geonim said this is the right interpretation of the Gemara—fine, that’s their opinion, and I have another opinion, okay? According to all you taught us about autonomy, I’m allowed to dispute all the Geonim. No, wait a second—first of all let’s read the next opinions, but beyond that, obviously there are distinctions. You can ask the same thing about the Talmud itself—why regarding the Talmud itself do I say otherwise? Because that’s an axiom, because it’s an axiom. Fine, so now we have to understand how far that axiom extends according to each view. So the Ba’al HaMaor broadens that axiom a bit, as you say, to include the Geonim as well—but in his time, not beyond. Okay? But we generally aren’t talking about the Geonim; we are talking about later authorities. Fine, in a moment we’ll see that there are even more radical views. Because when he says “by decisive judgment”—that’s what I started to tell you—what is a decisive judgment, a leaning judgment, sorry? It’s either something that seemed to them correct by reasoning, or something that seemed to them by reasoning to be what the Gemara says. That’s different. Because to say that it seemed to them by reasoning that this is the correct thing to do—then when you dispute, you dispute them. But when they argue that this is what the Gemara says, then when I dispute, assuming they were right, I am disputing the Gemara, not them. They are only the interpreters of the Gemara. But in the end, it’s like Maimonides—we’ll get to him. Assuming they were right, then I’m not disputing them. Obviously I’m not disputing them if they were right. But I’m not assuming they were right. No, that’s exactly what I’m saying. When you dispute them, you accept their greatness. The assumption is that when I dispute someone who preceded me, it does not mean I think I am greater than him. I know I am smaller than him. More than that: I also know that it is likely that he is right and not me. But still, this is my view, and this is what I will do. You understand? Those are two different things. Now, if I make that assumption, then when the Geonim offer me an interpretation of the Talmud, then when you ask what the truth is—what the Talmud meant—it meant what they say. Now when I go against them, I am really going against the Talmud, not against them. Against the Talmud I am not allowed to go. If I go against them, then even if they were right, against whom did I go? I went against them. It’s like Maimonides—I’ll bring this, you know what, I’ll read it now. Maimonides writes at the beginning of chapter 2 of the Laws of Rebels—I may have already mentioned this, but it’s very important: “If the Great Court expounded one of the hermeneutic principles according to what appeared correct in their eyes, that the law is so, and they judged accordingly, and another court arose after them and a different rationale appeared to it to overturn it, this later court overturns it and judges according to what appears correct in its eyes, as it is said: ‘to the judge who will be in those days’—you are obligated to follow only the court of your own generation.” Every court in every generation can dispute an earlier court. It’s not that he wants someone to interpret the Torah differently and just do whatever he wants, some other thing, whatever he wants. So apparently I’ve already mentioned this, yes. If today there were to be a Great Court that decided there are four primary categories of labor on the Sabbath, then that’s what there would be: four primary categories of labor on the Sabbath and not thirty-nine. You’ll say greater, smaller—it doesn’t matter. It’s the court of my days; that’s what determines. But in halakhah 2 Maimonides writes: “A court that decreed a decree, or enacted an ordinance, or instituted a custom, and the matter spread throughout all Israel, and another court arose after them and sought to nullify the earlier rulings and uproot that ordinance, that decree, or that custom—it cannot do so unless it is greater than the first in wisdom and in number. If it was greater in wisdom but not in number, in number but not in wisdom, it cannot nullify its words. Even if the rationale because of which the earlier authorities decreed or enacted has been nullified, the later ones cannot nullify unless they are greater than them.” How can they be greater than them in number? Yes, not important right now—a court of seventy-one is always seventy-one. How can it be greater in number? So they add more students or something like that; Maimonides has an answer to that. Okay, what did Maimonides say? What is the difference between the two halakhot? The first halakhah speaks about Torah-level laws. In Torah-level laws there is the rule that a matter established by count requires another count to permit it. Meaning, if the Great Court established a Torah-level interpretation, another Great Court is needed to change that interpretation. But it doesn’t need to be greater in wisdom and number; it needs the formal authority of a Great Court. It does not need to be greater in wisdom and number. By contrast, with rabbinic law—ordinances, decrees, customs, and the like—there it is not enough that it be another court; it must be a court greater in wisdom and number. Even if the original rationale has been nullified. To permit eating legumes on Passover you need a greater court… But to remove a primary category of labor, it’s enough… That’s true, but eating legumes is not a good example, because it isn’t even rabbinic law; it’s just nonsense. Meaning, eating legumes is a custom that was practiced because there used to be some danger, that’s all. And “it spread throughout all Israel”—that’s another factor. You could say that in a particular community… Yes, but once what was of all Israel became fragmented into communities, does that still count under the rule of “spread”? Okay, but what you’re saying is a custom that the Sages instituted? Yes. What is a custom the Sages instituted? It’s a custom practiced because of concern for leaven. Yes—a custom that was practiced requires a court more wise and greater in number than that, but if it’s Torah law then not? Yes, that’s what Maimonides writes. And that is a Torah-level law, that he cannot dispute… that if they permitted… I don’t know. There is no explicit source for this; it appears from the Talmud. When the Talmud discusses it, it seems to be reasoning, and reasoning is generally Torah-level. But it’s reasoning; no source text is cited. It’s not… But just one second, we’ll also see—you know what, let’s continue before I make this distinction. Since I’ve already read this Maimonides, there is the Kesef Mishneh on Maimonides, and he says the following: “Our teacher learned this”—where did our teacher know this from? Who says this? The Kesef Mishneh. “From the fact that we find later Tannaim disputing earlier Tannaim. Likewise, later Amoraim dispute earlier Amoraim.” So you see that a later court may dispute an earlier court. And the assumption, of course, is that there is some decline of generations, and therefore the later one is necessarily lesser—so how does it dispute? Apparently because it need not be greater in wisdom and number. There is such an assumption among quite a few medieval and later authorities, that what is later is necessarily lesser. Yes, the Ra’avad asks against Maimonides—the Ra’avad disputes Maimonides. He says that if the rationale has been nullified, then you don’t need a court greater in wisdom and number. Maimonides says that even if the rationale of the original ordinance was nullified. The proof the Ra’avad brings—where is it here? Yes: “Said Avraham: the adornment of the Jerusalem markets with fruit is a difficulty against him, for the earlier authorities instituted it, and Rabban Yohanan ben Zakkai abolished it after the destruction because the rationale of the earlier ones had been nullified, and he was not greater than the earlier ones.” Adorning the markets of Jerusalem with fruit was an ordinance when they came up for pilgrimage—it doesn’t matter—but when the city was destroyed, the Temple was destroyed, they no longer came up on pilgrimage. So why adorn the Jerusalem markets with fruit? The rationale had been nullified. But they didn’t abolish… and Rabban Yohanan ben Zakkai abolished the ordinance because the rationale was nullified, even though he was later. So they bring from here a proof against Maimonides. This is very amusing. The Ra’avad brings from here a proof against Maimonides, showing that apparently you do not need a court greater in wisdom and number. Who said so? Maybe Rabban Yohanan ben Zakkai was greater in wisdom and number than the earlier ones. Why? Because you are assuming that someone later is necessarily lesser, right? But then you are really assuming that this halakhah has been emptied of content, because you are basically saying that a later court must be greater in wisdom and number in order to nullify an ordinance. But the later one, by definition, is always smaller, so it can never do so. In other words, you have emptied this whole halakhah of content if you simply assume it as self-evident. It could be that he is smaller and it could be that he is greater. If you assume as a built-in premise that if you are later then you are smaller, then there is no such halakhah. It is a halakhah emptied of content. Unless there is proof that he is greater. Yes, but I don’t know what kind of proof that could be. Rabban Yohanan ben Zakkai, yes? I don’t know. I don’t know how one would prove such a thing. Where does this very forceful assumption come from—that the later one is necessarily smaller? On the contrary, if there were such an assumption, there would be no point in writing the halakhah, because the whole halakhah is written on the assumption that it is possible for a later court to be greater. But the Ra’avad somehow takes for granted that no. Fine—what is the Ra’avad’s assumption based on? Yes, right, I’m saying, that’s why I brought the Ra’avad. Right. Many people struggle with this. Strange, though, that every later one is smaller than the earlier one because of… In terms of number. No, he didn’t say anything—what does “in terms of number” mean? But this is not one person against pairs; it is a court of seventy-one. Yes, there was a court. Rabban Yohanan ben Zakkai established Yavneh and its sages. You’re saying the place itself matters. It may be that the fact that they sit in Yavneh makes them somehow smaller than a court sitting in the Chamber of Hewn Stone. Maybe. An interesting idea. Otherwise there really is some unclear circularity here. I don’t know. “Jephthah in his generation is like Samuel in his generation,” apparently, no? No—“Jephthah in his generation is like Samuel in his generation” clearly means that Jephthah is smaller. Right—and Samuel is later. Yes. Okay. Fine, yes, right. In a moment we’ll get to “Jephthah in his generation.” They always bring “Jephthah in his generation is like Samuel in his generation” as an example that the later authority is also fine, you can rely on him. Jephthah was earlier. Yes. Okay. In any case, the Kesef Mishneh writes: “And that which we learned in the first chapter of Eduyot, Mishnah 5, that if a court sees the view of the individual and relies on it, and that no court can nullify the words of another court unless it is greater than it in wisdom and number—our teacher establishes that when that individual and that majority disputed a decree or an ordinance.” Meaning, only in rabbinic law, but not in Torah law. In Torah law you don’t need to be greater in wisdom and number. Meaning that if one court ruled in accordance with the individual opinion, another court cannot dispute and rule in accordance with the majority unless it was greater. As explained shortly below. “But if they disagreed because this one expounded by one hermeneutic principle and that one by another, then indeed it can nullify his words even if it is not greater than him in wisdom and number.” “And if you say,” asks the Kesef Mishneh—yes, there is basically a contradiction between two Talmudic passages. There is one passage where it seems that a matter established by count requires another count to permit it, and “greater in wisdom and number” is not mentioned. And there is another passage where it seems that there is a requirement to be greater in wisdom and number. So Maimonides solved that contradiction this way: the requirement of greater in wisdom and number refers to rabbinic laws, and the “another count to permit it,” which does not require greater in wisdom and number, refers to Torah-level laws. So on that the Kesef Mishneh asks: “If so, why don’t Amoraim dispute Tannaim?” He made a point of saying that later Amoraim disputed earlier Amoraim and later Tannaim disputed earlier Tannaim. But why don’t Amoraim dispute Tannaim? How did that line form between them? So he says: “For in every place we challenge an Amora from a Mishnah or from a Baraita.” Yes, in every place where an Amora is challenged from a Tannaitic source, if he cannot find an answer, his words are rejected. Meaning, he cannot dispute the Tannaim. So why according to Maimonides is there no problem there? At least in Torah law. And maybe even in rabbinic law if the Amora is greater. “And one must say: ‘I say like that Tanna.’ If he does not say so, there is a difficulty for him. But according to our teacher’s words, they would have permission to dispute the words of the Tannaim.” So why do we see it as a knockout when a Tannaitic source is brought against an Amora? “And one can say,” says the Kesef Mishneh, “that from the day the Mishnah was sealed, they established and accepted that later generations would not dispute the earlier ones. And they did the same with the sealing of the Gemara—that from the day it was sealed, no person was granted permission to dispute it.” So what is the Kesef Mishneh saying? There is another player here in the arena. That player is public acceptance. The public accepts something upon itself. Sorry? Is that the Rosh? I don’t remember—could be. In any case, he says that the Amoraim accepted upon themselves that the Mishnah has authority and is not disputed, and the sages after the sealing of the Talmud accepted upon themselves that the Gemara has authority and is not disputed, and this has nothing to do with the essential law. In principle one could have disputed everyone. We decided not to do that. You would expect Maimonides to address that. Why? The fact that there is this sealing… No, Maimonides generally brings laws that appear in the Talmud. It is rare for him to bring laws that do not appear in the Talmud. Unless he says “it seems to me” or “the Geonim wrote”—sometimes he adds—but Maimonides has a rule that a law not appearing in the Talmud he does not bring. He relies on the Talmud, or Sifra and Sifrei, the classic rabbinic sources. So in this context, Maimonides’ law concerns two later courts, meaning a later court after the final sealing of the periods. There is a sealing of periods: the end of the Tannaim, the end of the Amoraim, and the discussion among the medieval authorities is whether the end of the Geonim is also such a thing. That’s basically the context I’m now supplying. But in the Kesef Mishneh first of all we see that the fact that one does not dispute the Talmud, or that the Amoraim did not dispute the Mishnah, is not something essential. In principle it is possible to dispute, and there could even be errors there. It’s not because there are no errors there and they had divine inspiration—he does not give that explanation. Rather, what? We accepted upon ourselves not to dispute. And I already spoke about how I think this was one of the most brilliant decisions in our history, it seems to me—to accept the authority of the Talmud. I think we talked about that. You said one of the most—one of the what? The most brilliant in our history. We didn’t speak about it yet. No. I said that in Makor Rishon. Yes, I saw that in Makor Rishon. Right, right. In any case, the point is that once they saw that the whole thing was about to scatter—there was no Great Court, no defined halakhic hierarchy—then some rule was fixed. And again, it’s not that sages sat there and held a great conference and decided, but de facto over the course of history a consensus took shape that one does not dispute the Gemara, that the Gemara is the boundary of discourse, and the discourse takes place within that framework. If they had not established that—or alternatively if they had established something like a Kitzur Shulchan Arukh, something binding, or something more closed with simple final rulings—we would not be sitting here today, in my opinion. We are sitting here thanks to that decision, because that decision allowed, first of all, a variety of opinions to move around within the framework and to talk to one another, to bring proofs, to speak the same language. You bring a proof from the Talmud, you discuss, initial assumption, conclusion. What they tried to do in a very long process—they almost succeeded, but it took some fifteen hundred years to succeed in this—could not have worked if they had done it immediately. Around Maimonides and around the Shulchan Arukh there were very great controversies, what Elon calls the codification controversy. And if the Gemara had been written like Maimonides, then the same controversy would have surrounded it too, and it would not in fact have been accepted. I think this decision—to establish a framework of discourse, but an open framework, not Kitzur Shulchan Arukh-style decisions—is simply brilliant. I really think this is extraordinary foresight; I don’t know how much of it was consciously there, but de facto it turned out to be something truly amazing. What was the alternative? To establish the Mishnah? Or to establish the Mishnah, or to establish nothing—to just let things keep going as before. What did they do during the period of the Gemara? They debated, and the sage in each place decided for his community. Had they continued that way afterward, it would not have kept going. Because as long as they were in Babylonia there was judicial autonomy; there was a clear hierarchy. It just happened to be in Babylonia and not in the Land of Israel. There was the Exilarch, there was authorization to rule—“he may teach, he may judge”—receiving authorization from the Exilarch, and so on. There was a clear hierarchy, there was supervision. So if some little village wanted to do something, it was possible to tell them: friends, no, that you may not do. But once things begin to scatter, then you have some village somewhere, I don’t know where, with three people there—one knows how to write, one knows how to read, and one knows neither of those two things. So what are they going to do now? By the way, not joking—the subject of this brilliant move, this process—there is what you just said, that there was a hierarchy. In Jewish law there is a certain ordination of rabbis with titles: “the rabbi,” “our teacher,” “our teacher and rabbi.” That developed in later generations; it wasn’t something that had always existed. Didn’t it exist in Babylonia in the days of the Exilarch? There was ordination to rule, of course, ordination. Was the ordination one single thing? “He may teach, he may judge,” or “he may permit firstborns,” whatever—but there were no grades of wisdom. A person was ordained. Also “learned and discerning,” “recognized by the public”—these are not grades of wisdom; they are grades of status. If “recognized by the public” means the public appointed him over them, that means he’s the chief rabbi—really the chief rabbi. Maimonides doesn’t always relate to the anonymous voice of the Gemara. What do you mean? That he doesn’t take the anonymous voice of the Gemara as definitive. He takes the anonymous voice of the Gemara exactly like the named statements of the Amoraim. I don’t think there’s a difference; in my opinion there is no difference. On the contrary, in a place where there is an anonymous statement—there’s a dispute and then an anonymous ruling, or if there is an anonymous statement and elsewhere there is a dispute—the law follows the anonymous statement. And the assumption is that this is the anonymous consensus, that the anonymous editorial voice in fact chose that opinion, so apparently that is what was decided as Jewish law. In any case, that is about Maimonides and the Kesef Mishneh. But I brought that Maimonides in another context. Because Maimonides—what is the meaning of this distinction, really? What Tzvika asked earlier. With rabbinic law you need a court greater in wisdom and number, and with Torah law any court can do it; it does not need to be greater in wisdom and number. That’s the opposite of what one would expect. Usually people explain that the Sages wanted to reinforce their own words, because with rabbinic law there was concern that the force of those laws would be undermined, because in origin they are weaker, and therefore they wanted to set a higher and more rigid threshold. I think there is a substantive claim here, and this brings us back to what I said earlier. It’s not the point that they wanted to strengthen their own words. When you dispute an earlier court over interpretation, you interpret the verse differently, then you say, okay, so the verse says—he says that the verse says this, and I say the verse says something else. Suppose he says “an eye for an eye” means monetary compensation, and I say “an eye for an eye” means monetary compensation. Fine. Whom did I dispute? I disputed the Torah, not the court—or really, I disputed no one. I claim: you too are not saying that you are commanding us to do this; you are saying that the Holy One, blessed be He, commanded us to do this. I say that is incorrect; the Holy One, blessed be He, commanded something else. But if you enact an ordinance, then I cannot—when I’m dealing with it, I’m dealing with you. When I dispute you, I am saying I disagree. Who are you not to agree? You need to be greater in wisdom and number in order not to agree. Not if the reason has been nullified? What? Not if the reason has been nullified? You decide that the reason has been nullified—that’s the question. And if the reason is nullified, then I’m not disputing you, I’m saying it no longer applies. That’s the question. You decided the reason has been nullified—who said it has? So objectively, really—if you look in Neria Gutel’s book, you know it? Changes in Nature in Jewish Law. An interesting book. In the final chapter he brings dozens of sources where Tosafot cites ordinances that lapsed without any count and without any formal procedure. And all those things, in my opinion, are exactly cases where it is clear that the rationale was nullified. Meaning, usually when there is still some foothold for the rationale—today it’s weaker, I don’t know—still some foothold for the rationale, I say: you can’t. Let a court greater in wisdom and number sit here and say the rationale is nullified—fine. But until that happens, I say no. But there are places where it is obvious that it is no longer relevant, and then no. What—Tosafot? Rabban Yohanan ben Zakkai? Huh? Maybe—unless he was greater in wisdom and number, as I said before. No, if the rationale is nullified in an objective way. Ah, okay. The ban of Rabbenu Gershom? Yes. There is a Tosafot HaRosh in Bava Metzia 90. We rule that we do not derive law from the rationale of the verse, like Rabbi Yehudah against Rabbi Shimon. But the Tosafot HaRosh says yes: in a place where the rationale is obvious, yes, we do derive law from the rationale of the verse. Because then you’re not deriving it. Yes, exactly. Where it’s obvious, it’s obvious; we’re not playing formal games. If it’s obvious, it’s obvious. Where it isn’t obvious—fine, we fence ourselves in and say we won’t touch it. But if it’s obvious, then it’s obvious. Like he says, maybe that isn’t really deriving law from the rationale of the verse. If you need to derive the rationale of the verse, we do not derive it. But if the rationale of the verse is obvious, then yes. Sorry—by the way, Maimonides claims not so. It is explicitly written in Maimonides—not explicitly perhaps, but it emerges from his words. Because Maimonides writes—there is a dispute in Sanhedrin 21 regarding the king: “he shall not multiply wives for himself, lest his heart turn away.” Maimonides and Nahmanides argue about this in the fifth root. In the fifth root, because there the Torah itself gives the reason: “he shall not multiply wives for himself, lest his heart turn away.” Meaning, the Torah itself says why he should not multiply wives. Well, where the Torah itself says the reason, there is no concern that maybe the reason is not correct. And Maimonides rules that even there we do not derive law from the rationale of the verse. But that isn’t called deriving. Exactly—so I said, that’s why Maimonides does not go with what I said earlier. Maimonides says we do not derive law from the rationale of the verse, even though there the Torah itself stated the reason—there is no concern that perhaps this is a mistake, perhaps I misunderstood; the Torah itself said it. I’m not talking there about changes, but on the conceptual level. Yes. The example of “an eye for an eye” that you gave earlier—was it illustrative or did you mean it literally for the point at hand? I meant it literally. I just don’t understand it. “An eye for an eye”—we know by tradition, by a law given to Moses at Sinai, that it means… How do you know that it’s a law given to Moses at Sinai? The same way I know that “eye” means this and not that. I don’t know. It’s the tradition. What, tradition? Who said tradition means a law given to Moses at Sinai? Maybe it was an interpretation derived at some stage and accepted, and from there it became tradition. The Netziv, in the introduction to Ha‘amek She’elah, his introduction there, discusses what the phrase “it was learned by tradition” means. Rashi, everywhere the Gemara says “it was learned by tradition,” says this means a law given to Moses at Sinai. And he proves systematically that according to Maimonides, when it says “it was learned by tradition,” that means an ancient tradition; it does not mean a law given to Moses at Sinai. The meaning is: at some point a derivation was made, it was accepted, everyone agreed, and from then on it became tradition. So today we no longer know… that in fact the fringes have to be purple? Right. Exactly. And if you have no proof, that’s how I learned, that that is how the Holy One, blessed be He, showed it to Moses our teacher. That’s how you learned—okay, so now we’re learning otherwise. With tefillin, the Gemara says “this is a law given to Moses at Sinai.” It does not say “it was learned by tradition”; it says “a law given to Moses at Sinai.” That is something else. But when the Gemara says “it was learned by tradition,” many times we are talking about tradition. But tradition is not necessarily tradition from Sinai. Tradition is something whose rationale we no longer know; the rationale has disappeared from us. But where did it come from? Either from Sinai, where the Holy One knew the rationale, or from ancient sages who knew the rationale, determined that it was correct, and from then on it became tradition. Or something else. But when the Gemara says “it was learned by tradition,” many times we are talking about tradition, and tradition is not necessarily from Sinai. Tradition is something whose rationale we no longer know. The rationale has disappeared from us. But where did it come from? Either from Sinai, where the Holy One knew the rationale, or from ancient sages who knew the rationale. They determined that it was correct, and from then on it became tradition. It does not have to be that it began at Sinai. Also with “an eye for an eye.” So the Gemara discusses it and brings Rabbi Eliezer, who says “an eye for an eye” literally. The Gemara says there that we never found anyone who says “an eye for an eye” literally. And why? Because it is obviously implausible. So you have to bolster it—you say, “we never found anyone,” there is no one. But what do you mean? Rabbi Eliezer says it explicitly: “an eye for an eye” literally. The Gemara answers there: no, even Rabbi Eliezer doesn’t mean that. I would bet that yes, we did find someone. That statement comes to strengthen the claim. It’s not a historical statement that in fact there was never anyone who thought “an eye for an eye” literally. What? At that time at the entrance it didn’t really… Yes. The question is what the law said. So Rabbi Eliezer says that in the law too one must put out an eye, and the Gemara comes and says no; it takes Rabbi Eliezer out of his plain meaning and says no, even Rabbi Eliezer doesn’t mean that. Because the Gemara had some interest in strengthening that point, precisely because it was a bit shaky. A question: who cuts the periods? Meaning, the collective—there’s no forum. Within the period itself we see there were disputes. Certainly. For example the Kesef Mishneh writes that they practiced differently. There was a law and someone practiced differently at that time. The Kesef Mishneh writes—that’s exactly what he says. Later Amoraim dispute earlier Amoraim, later Tannaim dispute earlier Tannaim—but Amoraim do not dispute Tannaim. Okay, and afterward? And after the Gemara, then one does not dispute the Amoraim. That’s it—he doesn’t say that explicitly afterward. There’s no continuation. I know, he doesn’t say it. He discusses those two examples, so maybe there is a continuation he simply doesn’t mention. Geonim, medieval authorities. He doesn’t mention more. That’s the discussion in the Rosh. We’re in the middle of the discussion in the Rosh; I just took a time-out here. An Amora does not dispute someone from the previous period. Yes. Just one more minute. Okay. There are also returns in time. In any case, the Rosh is dealing exactly with the question of how far this whole thing continues. And I brought this in order to continue answering what I said before: when you dispute the interpretation of a prior generation, you are not disputing the prior generation, you are disputing what the interpreted text says. But when you dispute a determination of a prior generation, you are disputing them. For that, Maimonides says, you need to be greater in wisdom and number. And that is what I said—that what is written “by leaning judgment,” what the Ba’al HaMaor says—what the Geonim determined by leaning judgment and not by decisive judgment—what is leaning judgment? Does it mean my reasoning says that this is what the Gemara says, or does my reasoning say that this is the right thing to do? Two different things. And when my reasoning says that this is the right thing to do, then you are disputing the Geonim themselves. But if their reasoning says that this is the meaning of the Gemara, and I think the meaning is different, then the question is what the Gemara says, not whether I am disputing the Geonim. “And the Ra’avad wrote concerning the words of the Ba’al HaMaor”—and this is already a third position, yes? There is the sage whom the Ba’al HaMaor cites, there is the Ba’al HaMaor, and now the Ra’avad. “The Ra’avad wrote concerning the words of the Ba’al HaMaor: the sage spoke truth.” The sage is indeed correct. “For if one erred regarding the rulings of the Geonim because he had not heard their words, and had he heard them he would have retracted in truth and with certainty, this is an error in an explicit Mishnah.” So the first example is one that needs a bit of discussion. He says: if there is a case where you did not know of some ruling of the Geonim and you ruled otherwise, and then they showed you—here, look, it says in the responsa of the Geonim the opposite of what you said—and then you retract, saying: I didn’t know, I wasn’t familiar with this responsum—that is called an error in an explicit Mishnah. What happens if they bring you the words of the Geonim and you do not retract? Interesting question. Because people always bring this Ra’avad as a source that one may not dispute the Geonim. I’m not sure of that. If you yourself missed a written source that would have led you to rule differently, then yes, you missed a written source; that is an error in an explicit Mishnah. But why are you not sure of that? That’s exactly what he says. He added here: “and had he heard them he would have retracted.” Right. He says that—which means there is a possibility that he would not retract. Yes, that’s what I’m saying. I’m not sure of it—meaning, that is exactly what he says. Now he continues: “And I am close to saying”—here he’s less certain, but it seems so to him—“that even if he disputed the ruling of the Gaon on the basis of a rationale that appeared right to him in his own view, not according to the Gaon’s opinion and not according to his interpretation, even this is an error in an explicit Mishnah.” It’s almost the same case I mentioned before—not exactly, because here he knew the Geonic ruling in advance; it didn’t become known to him only afterward, after which he entrenched himself in his position—but perhaps broadly it’s the same. He knows the rulings of the Geonim and decided to go otherwise. Fine? So what—does the law follow the later authority? We know that from Abaye and Rava onward the law follows the later authority. The Ra’avad says no. He is close to saying, yes, this too is an error in an explicit Mishnah. The Geonim have become a Mishnah. “For now we do not have the right to dispute the words of a Gaon based on our own reasoning, to interpret the matter another way so that the law will differ from the Gaon’s words, unless there is a famous difficulty.” So he too understands that sometimes there are exceptional cases, perhaps yes. “And this is something not commonly found.” Meaning, it can happen once in… but almost never. “Not found” doesn’t mean impossible; it means it almost never happens. I think I once brought that story where we were sitting in Rabbi Shlomo Fischer’s house, from the yeshiva in Yeruham—we were on a trip to Jerusalem. So we went to hear a lecture by Rabbi Shlomo Fischer. He gave a lecture there. I asked him about a certain Ran on the case of one who is unwittingly engaged in forbidden fats and forbidden sexual relations. One who is unwittingly engaged in forbidden fats and forbidden sexual relations is liable because he derived pleasure. Even though he is unintentional, if it is something involving pleasure, then he is liable as if he intended it. The Ran claims this applies not only to prohibitions, but also to positive commandments. Rav Gornish also brought this. It also applies to positive commandments—that when you do not intend to eat matzah, since this is a commandment of eating, a commandment involving pleasure, if you merely engage in it unwittingly—“the Persians forced him and he ate matzah”—he has fulfilled the commandment. Why did he fulfill it? He fulfilled it because he derived pleasure, so says the Ran. The same principle applied to prohibitions is also applied to positive commandments. So he said to me: that’s a most astonishing midrash—and moved on immediately. Meaning, he didn’t deal with it. Meaning, okay, so the Ran wrote it, and the Ran is one of the important medieval authorities. The Ran wrote it, fine—but it’s a stunning midrash. That is a case of a famous difficulty. There are situations where it is obvious that the words are strange. Fine, then we won’t follow you in a totally formal way. So it’s written in the Geonim. Then we’ll say maybe that’s what some mistaken student wrote—yes, we have solutions. But in a place where there is no famous difficulty, then the Ra’avad says this is called an error in an explicit Mishnah. Is he only starting the authority there? What? Starting from the period of the Geonim? Yes, yes, that’s what I’m saying. He is basically agreeing with the first opinion? Yes. He said, “and the sage spoke truth”—that’s what the Ra’avad writes. So he is extending the acceptance of the close of the Talmud? Right. It may be that the Geonim themselves could not dispute the Gemara, but we cannot dispute the Geonim. Meaning, the question is whether he moves the boundary or adds another boundary. Fine, that I don’t know—one of the two. “And I”—now a fourth opinion, yes—“I, the Rosh”—up to this point these were citations—“certainly anyone who erred regarding the rulings of the Geonim, of blessed memory, because he had not heard their words, and when the rulings of the Geonim are told to him they seem right in his eyes, is an error in an explicit Mishnah.” “And not only one who erred regarding the rulings of the Geonim”—he is even stricter—“but even the sages of every generation after them are not reeds in a swamp. And if he ruled not in accordance with their words, and when he heard their words they seemed right in his eyes and he admitted he had erred, then it is an error in an explicit Mishnah, and he retracts.” The ruling is reversed. And with an error in an explicit Mishnah the ruling is reversed, whereas with an error in judgment the ruling stands and the judge pays from his own pocket. So he says: the ruling is reversed in an error in an explicit Mishnah. But once again, he too is talking about a situation where when you heard the earlier authority, you yourself retracted. Okay. But if his words did not seem right in his eyes—even today this is tautological, you understand. If you hear the words of an earlier authority, you automatically retract because an earlier authority said otherwise. But the Rosh says not so. This is the proof I brought from Maimonides: that someone greater in wisdom and number can also be later, because otherwise what is the point of conditioning it on whether he is greater in wisdom and number? So here too, if you make it conditional on whether the later authority did agree or did not agree, that means there can also be a case where he does not agree. And maybe if there is a dispute between them and you are stepping in between them? No—he is not talking about that here. He is talking about—well, in a moment I’ll comment on that too. In a moment I’ll comment on it. “But if their words did not seem right in his eyes, and he brought proofs for his own words that are accepted by the people of his generation”—he brings proofs that have sufficient consensus, meaning it’s not just some whim of his; not just “it seems to me.” Rather, proofs that hold water—“Jephthah in his generation is like Samuel in his generation; you have only the judge who is in your own days”—and he can overturn their words. And now the rationale, the most famous sentence in this Rosh: “For all matters that are not explicitly stated in the Talmud arranged by Rav Ashi and Ravina, a person can overturn and build, even to dispute the words of the Geonim.” In other words, only the Talmud is binding. That’s it—not the Geonim, and certainly not anyone after them. Again, we’re talking about the Rosh in the fourteenth century; this can be applied further on as well. So what is the Rosh basically saying? In a place where you yourself were convinced when they showed you the earlier source, that is an error in an explicit Mishnah. Why? Because the logic is simply that you lacked information. It doesn’t matter whether that information is a Mishnah or not, but the fact is that if that information had been in your possession, you would have ruled differently, so you were simply mistaken. It’s not that afterward you were convinced you erred; rather, from the outset you really missed something. The ruling is void from the outset. Therefore the ruling is reversed. But if they bring it to you and you are not convinced—in such a place, certainly you may dispute him, because he has no real authority. The definition of this as an error in an explicit Mishnah is not because the words of the Geonim have authority, but because you yourself, if you had seen the words of the Geonim, would have ruled differently. So simply because the judicial ruling is based on an error—you just made a mistake. If you had known that the Geonim said otherwise, you would have ruled differently. So in such a case the ruling is void, but that is not at all because of the authority of the Geonim. It is void because you yourself erred when you ruled, that’s all. You yourself say you erred. Under those conditions I would not have ruled that way. But where the question is the authority of the Geonim—whether you go against them—there is no problem. You can go against them. If you think otherwise, then do otherwise. That is an important point, because it is not a question of authority. Even in the place where he says you cannot—where it sounds as though the ruling is reversed—it’s only because you yourself don’t think that way, not because the Geonim have authority. “For later Amoraim sometimes dispute earlier ones, and indeed we hold the words of the later authorities as primary, since they knew the reasoning of the earlier ones and their own reasoning, and weighed between those positions and arrived at the core of the matter.” We spoke about dwarfs on the shoulders of giants and the like. In any case, the law follows the later authority. So up to here are the words of the Rosh. The Ba’al HaMaor says one may not dispute; he claims this is an error in judgment and not an error in an explicit Mishnah. The Rosh says this is neither an error in judgment nor an error in an explicit Mishnah—it’s not an error at all. “And where two great authorities disagreed in a legal ruling, the judge should not say: I will rule however I wish. If he does so, this is a false judgment. Rather, if he is a great sage, learned and discerning, and knows how to decide in favor of one of them with clear and compelling proofs, he has permission to do so. And even if another sage ruled differently in another matter, the sage may overturn his words with proof and dispute him, as I wrote above.” All this is the Rosh. “All the more so if he has support from one of the disputants. But if he is not fit for this, he should not extract money on the basis of doubt.” What is he saying now, basically? This is the bottom line, by the way—it is brought as law in the Shulchan Arukh, this Rosh. The Rema in Choshen Mishpat 25 brings this Rosh as law. One has to understand that this is the Shulchan Arukh—a text whose basic perception is precedent-based, a perception of authority. After all, the author followed the majority of Maimonides, the Rif, and the Rosh; and the Rema too. And these are the texts considered perhaps the clearest representatives of a precedent-based conception. And the Rema brings these words of the Rosh there at the beginning of section 25. And what does the Rosh say? He basically says three things. First, there is no difference between the Geonim and the famous sages of our own time. There is no difference, neither leniently nor stringently. Meaning, it makes no difference—even the Mishnah Berurah. If you had—if you missed something the Mishnah Berurah said, and after seeing that the Mishnah Berurah says so you retracted, then that is an error in an explicit Mishnah. Not because the Mishnah Berurah was a Tanna, but because this is a judicial ruling founded on error; it’s a faulty transaction in the process of rendering the ruling, that’s all. It is not a question of authority at all. But in terms of authority, the Mishnah Berurah is like the Geonim and the Geonim are like the Mishnah Berurah, both leniently and stringently. Meaning: they are all not like the Gemara. You may dispute anyone you understand. If you are fit for it and can bring proofs for your words that would be accepted, say, by a reasonable number of sages—meaning not just some whim of yours—even that doesn’t count. It has to be something grounded, not just saying something and surviving. You need something substantial. The fact that you don’t know the Mishnah Berurah means you aren’t such a great sage. No, it means I don’t care what the Mishnah Berurah says. What you just said—that if there is a Mishnah Berurah, you have no immunity? No—if you are the sort of person for whom seeing the Mishnah Berurah automatically binds you, then yes, you need to know the whole Mishnah Berurah. But if not, you have the right to be a decisor who does not follow the Mishnah Berurah. So what, are you obligated to go through the whole Mishnah Berurah and decide where you agree with it and where you don’t? Why? I learn—I learn the medieval authorities, I learn the halakhic decisors, I come to a conclusion, whether it aligns more with the Mishnah Berurah or not. There is no authority here. It is not a question of authority. Does a sage who knows everything have immunity? What? Again—it would no longer be an error in an explicit Mishnah? Right, right. Here too I’m saying, again, that “error in an explicit Mishnah” now gets a double meaning. At least a double meaning. Because the original “error in an explicit Mishnah” means you went against a binding text—a Mishnah or Gemara that one does not dispute. “Error in an explicit Mishnah” in this other sense simply means a mistaken judicial ruling. It has nothing to do with something binding; it just means a mistaken judicial ruling. It may be—I’m not sure—that in fact that is also the meaning of the original “error in an explicit Mishnah.” Even the original “error in an explicit Mishnah” is not because the Tanna or Amora is certainly right, but because we accepted it upon ourselves, and therefore if I had seen it, I certainly would not have ruled that way. Therefore it is called an error in an explicit Mishnah, and in fact the whole concept of an error in an explicit Mishnah is not a question of someone who is certainly right and cannot be disputed, but only a question of a mistaken judicial ruling. How does the Rosh bring Jephthah and Samuel backward as well? That’s the Sages—what do you mean, the Rosh? “Jephthah in his generation is like Samuel in his generation.” On the contrary—that is exactly what we saw earlier: that the statement “Jephthah in his generation is like Samuel in his generation” is a very strong proof for what I said before, against the Ra’avad’s begged assumption. Because the Gemara is not bothered at all by the fact that Jephthah came before. It does not ask who was greater and who smaller. Samuel was greater, Jephthah was lesser, and still we are told “Jephthah in his generation is like Samuel in his generation.” According to the Ra’avad there is no place for that at all—after all, Jephthah was earlier, so he was certainly greater because he was earlier. Someone who ties greatness to chronological precedence should immediately have jumped on this. So I’m saying that the Rema—so the first point is that there is no difference between Geonim and other famous sages. The second point is that someone fit for it may dispute all of them. There is no restriction after the Talmud. The Talmud, no. But after the Talmud there is no restriction on disputing anyone, and the Rema rules this as Jewish law in the Shulchan Arukh. Understand—it’s not that I’m expressing some opinion of my own here and, as usual, regular heresy. But you don’t have to listen to the Rema. True, you don’t have to listen to the Rema—but on the other hand you may. Certainly not in the name of the precedent-based approach. On the contrary—I actually wanted, though I won’t have time now, to point out the opposite. When they attacked—when I wrote my article “In Favor of Autonomy in Halakhic Ruling”—well yes, but it was decided otherwise, accepted otherwise. Then I said: okay, I also dispute this whole “it was accepted otherwise.” In that direction it does work, but in your direction it doesn’t—that’s the opposite. Okay, so that’s the second thing: someone fit for it may dispute everyone. And the third thing is that someone who is not fit for it—and this is also a very important point—someone who is not fit for it may not decide even in a dispute. Even if there are two opinions among the medieval authorities, he must act according to the laws of doubt: the burden of proof rests on the claimant. Why? Because if you cannot decide, we don’t just do whatever we want; we’re not playing games here. Maybe the Rashba is right, maybe Maimonides is right. If you can decide, decide. If you cannot decide, then you are in doubt. This brings us back to the concept of rabbinic-level doubt, remember? Rabbinic-level doubt basically means that in a place where I do not think I am fit for it, or I truly am not fit for it, and there is a dispute among medieval authorities or Tannaim or Amoraim—it doesn’t matter who—then it may be a case of rabbinic-level doubt. There may be two opinions, and what will I do? I will apply the laws of doubt. What I only noted was that I am applying the laws of doubt here because I myself did not decide, so I myself am in doubt—not because there is really doubt. Okay? So even this is still not quite the whole picture. Then we come to the substantive question: who is fit for it? Yes. Okay, so here really a few comments, if you’ll allow me. I think I’ve already gone a bit over, but I wanted to finish this. A few comments. First: who is “fit for it”? Notice—it is very important to pay attention to how the Rosh explains his position. He says, “Jephthah in his generation is like Samuel in his generation.” What does he mean to say? That Jephthah is wiser than Samuel? The opposite. His assumption is exactly the opposite. Clearly Jephthah is less wise than Samuel—after all, Samuel is considered equal to Moses and Aaron, as the Sages say. So clearly Jephthah is less great in Torah than Samuel, if at all—I don’t know what exactly he was there from the Torah standpoint. He was one of the transmitters of the Torah. Yes, okay, it appears. Could be. But I don’t know whether he transmitted the Torah or saw to it that it be transmitted. Manoah. Also Manoah? Manoah, fine—Manoah is okay. But regarding Jephthah I think I have a few reservations. But when the Rosh says “Jephthah in his generation is like Samuel in his generation,” what does he mean? Not that Jephthah is wiser than Samuel, but that there is authority. And whether Jephthah came after him or before him makes no difference; he is the judge of this generation, and so he is the one who determines. Meaning, when the Rosh gives this rationale, we see that it is not because I decide that I am greater than the earlier court. I know I am smaller than them. Not that I’m allowed to decide I’m greater, as I said before regarding Maimonides and the Ra’avad—no, no. I know I am smaller. And still, I am supposed to do—“supposed to” here in a neutral sense—what I think. Does “supposed to” mean I am allowed, or “supposed to” mean I am obligated? I think I am obligated. I brought that Maharal who says one must rule according to what one thinks; and the story of the Oven of Akhnai says this too: a heavenly voice comes forth and says we do not heed a heavenly voice. The heavenly voice is right, yes? Fine—we don’t think that way. We know it is right; a heavenly voice came from heaven, and we don’t think that way. I spoke about this. So in effect what the Rosh tells us is exactly the model of autonomy. He says precisely: it is not because I am right that I have to do what I think. Even if in my own estimation I think I may be mistaken—after all, if I wasn’t convinced, if my reasoning tells me that this is not the law and this goes against earlier halakhic decisors—I still have to do what I think, because there is a value of autonomy. Here I come back and close the circle. And what does it mean, “what I think”? If that’s what I think, then I think I’m right. No, obviously, but I know that’s the same thing. When I argue, say, with someone great in Jewish law, because I deeply respect him and also respect his judgment and understand that I could be mistaken, then I have some sense that objectively, if I had to bet, I’d probably bet on him. But when I look at the matter itself, and ask what is more persuasive to me in terms of reasoning—not convinced. My reasoning seems stronger to me. If it persuades you in terms of reasoning, then you think you’re right. No, obviously I think I’m right. But I’m saying that the fact that I think I’m right is not yet an indication that I really am right—not even in my own eyes, not even in my own eyes. Why? No, no—it’s a very interesting point, but I still think it’s true. Because you have to be objective too. It’s like trusting instruments. You know—a pilot trusting the instruments when there is some problem. They train them not to go with their own intuition, because if they go with their intuition they will find themselves smashed into the ground. Vertigo. Exactly. He thinks he’s right, but he applies a second-order thought: wait—but the instrument doesn’t get confused. I sometimes have tendencies to get confused. Instruments don’t get confused, so I need to follow the instruments. In that sense this is similar, you see? Meaning: I’m convinced in this argument. And now they tell him to work according to the instrument. Yes, right. And then you tell him: don’t work according to the instrument. No, because there what matters is the truth, and not a duty of autonomy. It does not apply to the pilot. He simply needs to get back safely. He doesn’t need to be autonomous. And that—but here that is exactly what I want to claim: that if truth were what interested me, I would have to do like the pilot. If it’s written in the Mishnah Berurah, then surely it is much more likely that he is right than I am if I think otherwise. Truly—I really think that. Fine, so what? But there is a duty of autonomy. The duty of autonomy says that although the likelihood is that I’m mistaken, still, if this is what I think, this is how I should act. We saw the Maharal on this; we saw—I brought sources on the matter. That’s with regard to the inference from the words of the Rosh. But what does this mean? If we really accept this inference in the Rosh’s words, then what does “fit for it” mean? Usually we understand “fit for it” to mean someone who has reached the level of the one he is disputing, yes—that he is at least equal to him in wisdom and number, in “kilograms,” if you will, in the case of an individual. What do I have here—what, I can be wonderfully autonomous? So the question is—if I say no, I do not need to be right in order to dispute him. I may dispute him even if in my own estimation he is greater than I am and there is a good chance that he is the one who is right. But if on the substance of the matter I am convinced that my reasoning persuades me and his does not, then I must go with mine. So what does “fit for it” mean? The usual understanding of “fit for it”—and the Rosh here writes, “if he is fit for it.” Why? I think what the Rosh means is this: “fit for it” means he has reached a level of competence—that same criterion we brought earlier—that if he hears the words of the earlier sage and all the arguments that other sages might raise, and he is skilled in Talmudic thinking, he is not Moses our teacher and not Samuel, but he is competent, he already has the structure, and he is not convinced—then he is fit for it. In other words, he does not have to be Moses our teacher in order to dispute Moses our teacher, but he has to be Zusha. I once said to the guys in the yeshiva that there is a difference between ruling for oneself and ruling ab initio—maybe I’ll note that in a moment. I once said to the yeshiva guys: yes, the famous story where Rabbi Zusha says that when he gets to heaven they won’t ask him why he wasn’t Moses our teacher; they’ll ask him why he wasn’t Zusha. So I say that this is also the criterion of “fit for it.” The criterion of “fit for it” does not mean that I am like the Rosh. I am not like the Rosh. It means that I am already Miki Abraham—because at age fifteen I still wasn’t even that. Maybe not even at twenty; maybe not at twenty-five. Meaning, there is a stage when a person is still in the process of formation. Certainly if he has not learned—if you don’t learn, then you will never be Miki Abraham even in adulthood. But I’m saying: if you do learn and you form, it takes some time. Once you are built and already have your position, which is truly your position, then you are fit for it—even though it may be that you are mistaken and the Rosh is more right than you. But then you are already fit for it, because you are already Zusha. Before that, you are not even Zusha; you are not yet yourself. After all, if you encountered someone wiser, he would convince you that you are wrong. So what does that mean? It means that you do not yet really have a position. You simply haven’t checked the matter through fully. But if you are in a state where even after checking it fully you remain in your position—even though you may be mistaken in judgment, as we saw earlier—that doesn’t matter. Since you are fit for it, that is perfectly fine. That is what you are supposed to do. Okay. Now there are further questions here about “I can rely on this opinion for myself” and various other things one can derive from this. Yes, for example, the Tumim asks about “I can rely on this opinion for myself”—this is what Rabbi Herzog struggled with a lot when the State was established. The Tumim asks: what is this whole business of “I can rely on this opinion for myself”? After all, in the end it means that there is no significance to halakhic ruling at all in monetary law, because any possessor can say, “I can rely on the opinion that was not decided as Jewish law,” and that’s it. They make all kinds of tricks—so there is no “I can rely on this opinion for myself” against the Shulchan Arukh and so on—but these are all inventions. Even regarding that I would say: I can rely on the opinion that it’s not so. I can rely on the opinion that one may rely even against the Shulchan Arukh. And there are such opinions, by the way. So what? The Kuntres HaSfeikot writes that the whole rule of “I can rely on this opinion for myself” was stated only where the judge has no opinion. Where the judge has an opinion, I don’t care if Maimonides and the Rashba and everyone else are lined up in groups of three on the other side—you can’t say “I can rely” on anything. If you went to a judge, the judge is the one who determines what the law is in this case. So all the rules of “I can rely” are only in a situation where—and I say the same thing about all the laws of doubt, returning to what I opened with—when there are two opinions, when is that? When I have no position of my own. But if I have a position of my own, then what if there is a dispute between Maimonides and the Rashba on a Torah-level issue? So I must be stringent because Torah-level doubt is treated stringently? Torah-level doubt is treated stringently if I am in doubt. But if I have a position of my own, I am not in doubt. So what if the Rashba and Maimonides say otherwise? Not because I am as great as they are, but because I have a position. If I am fit for it, this is what I am supposed to do. Okay. Now, obviously one has to be careful not to decide too hastily that one is fit for it. That too is not serious. We spoke about the boundaries of tolerance. I do not treat children with tolerance. He has his own position—so what, should I let him behave as he thinks? He thinks that one may cross the street however one likes, no matter what color the light is, no matter whether there is a crosswalk, no matter whether cars are coming or not. He has his own position. Fine—if he still has that position at age thirty, maybe yes. At age ten he still has to grow until he becomes Zusha. In other words, I said that one of the criteria for the boundary of tolerance is the point at which you are fit for it and have done the work required in order to make the decision. If you have not done the work required, or if you are not yet able to do it—you’ve done the work required in order to make a decision—then the fact that you think differently from the Rif and the Rosh, so what? You’re just mistaken. Go learn a little more. That is one point, and therefore really this matter of autonomous halakhic ruling, I think more than being a practical instruction, for many people it seems to me they still are not Zusha. I don’t think everyone can really decide for himself, because that is not true—that is anarchy, and I also don’t agree with it. What I do think, however, is that this ought to be the model according to which people are educated. Toward what are you raising the yeshiva student—meaning, the one learning under you? Are you raising him toward this? Are you testing him on ordination exams? What are ordination exams? Whether he can spit out by heart all the Mishnah Berurah with the Tur and the Shulchan Arukh and the commentaries—that’s examinations for judgeship, for ordination, something like that. That is the less important part of ordination and judgeship. It’s important—one needs to know the material—but it’s less important. There is a conception there that what is written there is the law, but that is not true. The law is what you decide is the law, and one has to examine whether you know how to decide. The exams for ordination and judgeship ought to test whether you are Zusha, not whether you are Moses our teacher, in my language. They should test your judgment. And it may be that you won’t agree with the judges examining you. But if they see that you have a reasoned position, and when they try to persuade you, you answer appropriately—they too are not persuaded, but you answer appropriately and you have a position of your own—then you are qualified for judgeship. You don’t need to know all the Shakh and the Taz and everything written there; he doesn’t need that. So do they examine them that way? No. That’s how it looks too. Fine.