Philosophy of Halakha – 5783 – Lesson 11
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- [0:00] The distinction between substantive and formal authority
- [3:06] Applying authority to facts and to norms
- [4:18] Formal authority relates only to norms
- [8:02] The source of formal authority in the Torah
- [10:00] The law of the Sanhedrin and the end of ordination
- [11:59] Halakhic authority after the Talmud
- [15:02] Communal formal authority as a contractual commitment
- [17:46] Autonomy and limits on substantive authority
- [22:23] Examples from Magen Avraham and permission to lie
- [26:06] Forgery of rabbinic writings and authority
- [27:47] The formal authority of the Sanhedrin
- [28:52] The authority of the medieval authorities (Rishonim) and the Geonim in the eyes of Jewish law
- [30:11] Lying in the name of substantive authority—when is it permitted?
- [32:06] Baal HaMaor and the view about the authority of the Geonim
- [41:51] The division is Savoraim, Geonim, medieval authorities (Rishonim)
- [51:37] The value of autonomy versus the value of truth
- [54:55] The difference from the Shulchan Arukh
Summary
General Overview
The lecture presents a distinction between substantive authority, which stems from expertise, and formal authority, which is binding by virtue of the role itself, and applies that distinction to Jewish law, to the difference between norms and facts, and to the sources of authority from the Sanhedrin through the sealing of the Talmud and afterward. The claim is that formal authority can apply only to norms and not to facts, and that from the Torah’s standpoint the general formal authority of “do not deviate” was given only to the Sanhedrin, and after the abolition of ordination and the exile of the Sanhedrin, that authority ceased. Alongside this, it is argued that the Talmud has formal authority by force of the general acceptance of the sages of Israel, whereas after the sealing of the Talmud what remains is mainly substantive authority, with the possibility of creating communal formal authority “from below” through public acceptance of a rabbi. Finally, the lecture emphasizes the value of autonomy in halakhic ruling for a scholar qualified to issue rulings, even when facing experts greater than he is, using examples from the Talmud, from Magen Avraham, from the Rosh and Baal HaMaor, and from the Maharal, including the claim that a ruling reached through understanding and analysis is preferable—even at the price of error—to a ruling based on citing works without understanding the reasons.
The Distinction Between Substantive and Formal Authority
The text defines substantive authority as authority that stems from expertise, like a doctor recommending a medicine, and explains that obedience to it comes from the assumption that he is right, not from an obligation to obey him. The text defines formal authority as authority that binds because it comes from an authorized body, like the Knesset or a judge, even when there is no assumption that they are more correct than others. The text presents obedience to the Holy One, blessed be He, as an example of formal authority that stems from His being God, and connects this to the biblical use of the term “elohim” for judges and to the Talmudic exposition at the beginning of tractate Sanhedrin about a court of three for monetary matters.
Authority and Norms Versus Authority and Facts
The text states that substantive authority can apply both to facts and to norms, because an expert can know facts in his field and can also know the halakhic norms. The text argues that formal authority can apply only to norms, because you cannot command a person to believe a fact when he is convinced of the opposite; at most you can get him to say it outwardly. The text illustrates this with the claim that the Sanhedrin can obligate a norm such as the prohibition of selecting on the Sabbath even if a person thinks otherwise, but it cannot obligate belief in a fact such as “it is light outside now” when the person is convinced that it is dark; it can only persuade him, and then we are already dealing with substantive authority.
“Do Not Deviate” and the Authority of the Sanhedrin
The text presents the verse “do not deviate from all that they instruct you” as the source of formal authority with respect to norms only, and identifies the holder of that authority with the Sanhedrin sitting in the Chamber of Hewn Stone. The text presents the accepted position among almost all medieval authorities (Rishonim) and later authorities (Acharonim) that this formal authority belongs only to the Sanhedrin, and adds that a court also formally binds the litigants who come before it, similar to a civil court. The text notes one exception, Sefer HaChinukh, which writes that formal authority is given to all sages in all generations, and describes that position as strange and esoteric, and one that plainly does not fit the language of the Torah.
The End of Ordination, the Exile of the Sanhedrin, and the Status of the Talmud
The text describes how the Sanhedrin is composed of ordained sages, and that ordination ceased at some point in the period of the Tannaim, and places the move to Yavneh already in the first generation of Tannaim, with Rabban Gamliel and Rabbi Eliezer ben Hyrcanus, disciples of Rabban Yohanan ben Zakkai. The text states that after the destruction there is no longer a Chamber of Hewn Stone, and that the Sanhedrin in exile retains certain residual powers by virtue of the ordained sages and the consensus, but “do not deviate” in its full Torah-level force no longer applies there, and later in Babylonia there is no ordination at all. The text presents one major exception: the Talmud has formal authority because all the sages of Israel accepted it upon themselves “like a renewed giving of the Torah,” and attributes this formulation of the model to the Kesef Mishneh in the laws of rebels against the court.
Authority After the Sealing of the Talmud: Substantive Only and the Risk of Error
The text argues that from that point onward, halakhic authorities possess only substantive authority, so that a great sage binds only in the sense of expertise and the probability that he is correct, not in the sense that one can sue a person for not obeying his rulings. The text explains that the practical difference is that where a person is convinced that the sage is mistaken, he may choose not to listen to him, just as a person may choose not to act according to a doctor after examination and deliberation, whereas with formal authority there is no such option even when the authorized body seems mistaken.
Excommunication, Communal Acceptance, and Authority “From Below”
The text distinguishes between formal authority from the Torah and communal sanctions such as ostracism and excommunication, and presents the latter as external means created “where you do not have the formal prohibition” in order to preserve public discipline. The text describes a model in which a community accepts a rabbi upon itself, thereby creating formal authority for that rabbi with respect to the community by virtue of an obligation similar to contract law or a “social covenant,” and emphasizes that this authority comes from below and not from “do not deviate.” The text adds that since the authority comes from below, the community also determines its boundaries, such as authority over the synagogue and the public sphere, but not necessarily over what goes on at home, whereas the Sanhedrin is authority “from above” and is the representative of the Holy One, blessed be He, not of the public.
The Limit of Autonomy and Its Value in Ruling
The text presents the “limit of autonomy,” according to which even when there is a greater expert, a scholar qualified to issue rulings who has considered his words and is not convinced is obligated to rule according to his own best understanding, because there is value in autonomous ruling. The text illustrates this through the passage about Rabbi Meir and the explanation that “his colleagues could not get to the depth of his thinking,” and presents the difficulty of how such greatness could lead to the fact that the law is not ruled in accordance with him, as support for the claim that Jewish law does not require automatic acceptance of the view of the greatest sage. The text formulates this as the principle “a judge has only what his eyes can see” and as an obligation to rule according to one’s own reasoning even when “the odds are” that the greater sage is right.
Magen Avraham: Saying Something in the Name of a Great Figure So It Will Be Accepted
The text cites Magen Avraham in section 156, a ruling that permits saying something in the name of a great person so that people will accept it, and connects this to two Talmudic sources and to the saying, “whoever wants to hang should hang on a high tree.” The text explains that this permission cannot be based on a case where the listener will automatically accept the statement by force of the great person’s authority, because then it would be a case of causing someone to stumble, but rather on the assumption that the listener does not accept it automatically and will only consider it more seriously. The text emphasizes that the halakhic assumption implied here is that one should not accept the words of a great person merely because he said them in a formal sense, but should treat them as expert input within an independent decision.
The Forged Jerusalem Talmud on Kodashim and the Distinction Between Forging Substantive Authority and Forging Formal Authority
The text describes a story from Eastern Europe about a forged “Jerusalem Talmud on Kodashim” and raises the question why people were angry at the forger if it is permitted to “hang on a high tree.” The text answers that the problem is that the Talmud has formal authority, and therefore attributing something to the Talmud causes the listener to stumble into a binding prohibition that he has no choice about, unlike attributing something to a halakhic decisor, who has only substantive authority. The text adds the example of “Besamim Rosh with the commentary Kisei DeHarsana,” which was attributed to the Rosh and regarding which there is a dispute whether it is a forgery, and connects this to the claim that many accept that the medieval authorities (Rishonim) have formal authority and that “one does not dispute the Rishonim,” though the speaker himself disagrees with that and states that in his view none of the Rishonim possess formal authority.
Baal HaMaor, Raavad, and the Rosh on the Status of the Geonim and One Who Erred in an Explicit Mishnah
The text quotes Baal HaMaor, who cites in the name of “a great sage” the claim that “nowadays we do not have one who errs in judgment,” because all the laws are decided from the Talmud or from the Geonim, and therefore any mistake is always “one who erred in an explicit Mishnah.” The text quotes Baal HaMaor’s response rejecting this and limiting “one who erred in an explicit Mishnah” to what is clarified from the Mishnah or from the explicit Talmud without doubt, and ruling that decisions of the Geonim after the sealing of the Talmud are at most a case of “one who erred in judgment.” The text quotes the Raavad, who distinguishes that if a person had not heard the ruling of the Gaon and when he heard it “it seemed right in his eyes,” he would retract and that is “one who erred in an explicit Mishnah,” but he adds limits on the possibility of disputing and speaks of the need for a “well-known difficulty.” The text cites the words of the Rosh, who rules that certainly one who erred regarding the rulings of the Geonim and had not heard them, and when he heard them they seemed right in his eyes, retracts like one who erred in an explicit Mishnah, and so too with respect to “the sages of every generation,” but if they do not seem right in his eyes and he brings proofs accepted by the people of his generation, he may refute their words, using the principles “Yiftach in his generation is like Samuel in his generation” and “you have only the judge who will be in those days.” The text emphasizes the Rosh’s sentence: “For all matters that are not explicit in the Talmud arranged by Rav Ashi and Ravina, a person may refute and build, even to dispute the words of the Geonim,” and notes that this is brought as practical Jewish law in Shulchan Arukh, Choshen Mishpat, section 25.
Definition of the Periods: Savoraim, Geonim, Rishonim
The text presents a historical division according to which the Talmud was sealed in the sixth–seventh centuries CE at the end of the Amoraic period, followed by the period of the Savoraim, then the period of the Geonim in the ninth through eleventh centuries, and after that the period of the medieval authorities (Rishonim). The text gives examples of Geonic literature such as Sheiltot of Rav Achai Gaon, the author of Halakhot Gedolot, the responsa of the Geonim, and Emunot VeDeot by Rav Saadia Gaon, and places among the Rishonim the Rif, Ri Migash, Maimonides, Nachmanides, the Raavad, the Tosafists and Rashi.
The Maharal: Against Ruling from Codes and the Priority of Autonomous Analysis
The text quotes the Maharal in Netivot HaTorah chapter 15 on one who “read but did not serve Torah scholars,” and brings the gradation up to “amagushi,” someone who speaks without understanding what he is saying. The text interprets the Maharal as seeing a special severity in a ruling that is practically correct but is made by citing the Mishnah or codes without clarifying the reasons, and calling this “destroyers of the world,” because the world stands on an intellectual Torah of the reasons behind Jewish law. The text cites the Maharal’s argument against Rashi’s interpretation, and emphasizes his wording that the expression “they issue halakhic rulings out of their mishnah” means a true ruling, and nevertheless it is invalid when it does not emerge from the “clear intellect” of the Talmud. The text quotes the Maharal’s position that “it is more correct and more fitting that one rule from the Talmud,” and although there is concern that he may not rule truthfully, “nevertheless a sage has only what his intellect gives him,” and even an error made through analysis is “more beloved to the blessed God” than one who rules from a single code “and walks like a blind man on the road.” The text defines the Maharal’s view as part of the “codification controversy,” and ends by stating that self-nullification before an expert for the sake of certainty of truth is not good in the Maharal’s eyes, because the value of autonomy in ruling is no less than the value of truth and may even override it, while distinguishing that the discussion concerns a Torah scholar who is “fit for this,” not someone who is unqualified to issue rulings.
End of the Lecture and Continuation of the Course
The text concludes with the lecture ending and the remark that this is “the last meeting” of the semester, with a theoretical possibility of continuing the course next semester at the same time depending on the composition of the class.
Full Transcript
[Rabbi Michael Abraham] Okay, we’ll move on. I still want to get to a few more things today. This is already our last session, right. So I still want to touch a bit on the issue of authority in Jewish law, which we already spoke about somewhat. And I want to begin with a distinction I already made, the distinction between substantive authority and formal authority. Substantive authority is authority that stems from expertise. Meaning, if you know a field, understand a certain field, are an expert in a certain area, then presumably I’ll listen to you—like a doctor, say, who prescribes medicine for me or gives some medical recommendation. I don’t understand that stuff, so presumably I’ll listen to him. You can call that substantive authority, of course, but it’s not really authority, because I’m not obligated to listen to him. Logic says I should listen to him because he understands and I don’t understand. I’m looking for what the truth is. I do it because I, too, understand that this is the right thing. I don’t understand it directly because I don’t understand medicine, but I understand that he understands medicine, and therefore he is probably right. So I do it because he is right, not because he has authority. Formal authority is authority where I do something because he said so. Say, the authority of a legislative body, the authority of the Knesset—that’s authority that stems from the fact that it is the Knesset, not because it is right. They’re not more expert than others, they’re not more right than others—usually less—but you comply because it is the Knesset. That’s what’s called formal authority. I think I already said that, for example, the obligation to obey the Holy One, blessed be He, does not stem only from the fact that usually—or that the assumption is that—He is probably right, because He knows things better than we do, but from the very fact that He is God. God is someone you have to obey because He said so, regardless of the fact that He is also right; but that isn’t the reason I have to obey Him. And therefore, for example, the Torah also calls judges “elohim.” The Talmud at the beginning of Sanhedrin says that for monetary cases you need a court of three from the fact that the word “elohim” appears three times in the passage. In other words, the term “elohim” in the Bible denotes a judge. Why? Because a judge I have to obey not because he is right, but because of formal authority. Meaning, by virtue of his role as a judge, what he says binds me; I can’t argue with him, even though it may be that I’m right, it may be that he isn’t right, but he is the one who determines. So, for example, a professor of law who gives me a legal instruction—I don’t have to obey him, even though he is no less of an expert than a judge. But he doesn’t have the authority; he can’t compel me. Maybe later they’ll bring me to court and sue me for acting against the law, but I wasn’t obligated to obey him by virtue of his being a legal expert. A judge I have to obey because of his role, not because he’s an expert—because of his role. He’s appointed to the role, probably also because of expertise, but my obligation to obey him stems from the fact that he was appointed to the role, not from the fact that he’s an expert. That’s called formal authority. Now, these two kinds of authority have to be applied differently with respect to norms and with respect to facts. When I’m talking about norms, what does authority mean—say, substantive authority? Substantive authority, or the authority of an expert, can relate both to norms and to facts. When the expert tells me that Jewish law says such-and-such, then he’s an expert in Jewish law. So he’s probably right—not because of an obligation to listen to him, but because he is probably right. What? Can we just look at the… wait, wait, we’ll get to formal authority in a second. First the substantive one. The substantive authority of the expert can relate to facts—if he’s an expert in physics or medicine or chemistry or economics or whatever, in one field or another—if he’s an expert, then he probably knows, and therefore I’ll obey him as an expert because he knows better than I do. That’s the type of substantive authority. And likewise regarding norms in Jewish law: if there is someone who is an expert in Jewish law and he says that Jewish law says such-and-such, even if I don’t agree—if I think he is a very great expert—I may obey him because I assume he’s right because he is an expert. So substantive authority is defined both with respect to facts and with respect to norms. Formal authority can be defined only with respect to norms. It cannot be defined with respect to facts. Formal authority. Let’s think for a moment why. Look, say someone tells me that selecting on the Sabbath is forbidden. And the Sanhedrin says selecting on the Sabbath is forbidden. But in my opinion, the thirty-nine primary categories of labor do not include selecting. For some reason, I don’t know, some interpretive reason or another, in my opinion instead it includes someone standing on one foot. Okay? Not someone selecting. But if the Sanhedrin tells me that selecting on the Sabbath is forbidden, there’s a prohibition, then the Sanhedrin has formal authority. Therefore, not because it is right—it may be that I am a Torah scholar no less great than they are—but because they are the Sanhedrin. They have formal authority, and what they say binds me. Okay? Formal authority with respect to norms, with respect to a halakhic determination—that is definitely defined, well defined. Formal authority with respect to facts is an oxymoron. An internal contradiction. Authority—or validity? Formal authority with respect to facts. It just can’t be said. Why? Think, for example, that the Sanhedrin determines that it is light outside now. Fine? Now I think, I’m sure, that it is dark outside now. Okay? Now it’s not talking about what I should or shouldn’t do as a result, but about the fact itself. It determines a fact. Now, can someone come and tell me, listen, because the Sanhedrin determined that it is light outside now, you must believe that it is light outside now? So I say, regardless for the moment of my relation to the Sanhedrin and whether it is more right or less right—if I’m convinced that it is dark outside now, all that can be demanded of me is to say with my mouth, “it is light outside now.” You can’t demand that I believe it is light outside now, because I don’t believe it. Unless you persuade me. But if you persuade me that I’m mistaken, you tell me the Sanhedrin are very great sages and sometimes you’re wrong and your eyes deceive you—if I become convinced, that’s perfectly fine, you convinced me. But then it follows from the fact that I really became convinced that now it’s light, so that’s substantive authority. Formal authority means: you have to accept this because I am the authorized body, not because I am right. That’s called formal authority. Now, with respect to facts you can’t say such a thing. What do you want me to do? As long as I really think it’s dark outside, you can’t command me to believe that it is light. You can persuade me that I’m mistaken; you can’t command me to believe what I do not believe. At most I can say outwardly that it is light outside now so that you won’t kill me. But if inside I don’t believe that it is light outside now, then that’s what I believe; you can’t demand something else from me. Therefore formal authority is defined only with respect to norms. Because formal authority with respect to norms can tell me, listen, true, you think we’re not right, but you still have an obligation to act as we say. That is well defined. You can argue about it or not, but there’s no problem of definition. On the logical level it’s perfectly well defined, it’s a defined demand. And therefore, for example, the law commands me to behave in a certain way even though I think maybe it’s not a good law. Fine—but if the Knesset enacted it, then it binds. And it definitely can enact that, but the Knesset cannot determine that this law is correct, or that I have to think this law is correct. Because if factually I think it is not correct, then either persuade me—and then no problem, I’m persuaded—but if you don’t persuade me, you can’t, by force of formal authority, tell me to think what I do not think. I don’t think that way, what can I do. Okay? So that is why there is a difference between substantive authority and formal authority regarding facts. Substantive authority deals both with facts and with norms. Formal authority deals only with norms, not with facts. Okay? Now, to what was formal authority said? Formal authority is stated in the Torah: “do not deviate from all that they instruct you,” and as I said before, on the conceptual level—not because I’m now entering into interpretation of the Torah—on the conceptual level it is clear that formal authority speaks only about norms, not about facts, because it cannot be otherwise. To whom was formal authority with respect to norms given? The Sanhedrin. The elders who sit in the gate, right, meaning “you shall arise and go up to the place that the Lord your God shall choose”—all of that is talking about the Chamber of Hewn Stone, the Sanhedrin that sits in the Chamber of Hewn Stone. And therefore, in the accepted halakhic view, almost all medieval authorities (Rishonim) and later authorities (Acharonim), “do not deviate” and the formal authority that basically draws from the verse “do not deviate” speak only about the Sanhedrin. That’s it, only they have formal authority—or of course a court with respect to the litigants who come before it. Like in our case, say, a court rules that I owe you money, so I owe you money because the court ruled that. But a law—that in such a situation so-and-so always owes so-and-so money—only the Knesset can enact. That’s not the court. Okay? The court speaks to two litigants who come before it; the Knesset binds the whole public. Okay? So that’s what I mean by formal authority. General formal authority was given only to the Sanhedrin. The exception to this is Sefer HaChinukh. Sefer HaChinukh writes that there is formal authority for all sages in all generations, not only for the Sanhedrin. But that’s a very strange thing; plainly it goes against what is written in the Torah itself. “In the place where they are,” like “you shall arise and go up,” what I mentioned before. Basically all the Rishonim do not accept this. It’s a strange position; it appears in the Chinukh, a strange position. I think plainly it is not the correct position, an esoteric position. Now what happens next? The Sanhedrin is composed of ordained sages, and that stopped at some point when ordination was abolished, which happened sometime during the period of the Tannaim. Okay, somewhere around the Tannaitic period the Sanhedrin went into exile. The Tannaim already began in Yavneh when the Sanhedrin was no longer in Jerusalem. The first generation of Tannaim—Rabban Gamliel and Rabbi Eliezer ben Hyrcanus, two brothers-in-law, disciples of Rabban Yohanan ben Zakkai. Rabban Yohanan ben Zakkai, after all, left the city during the siege—you remember the story, in a coffin—so that was the destruction. And the first generation of Tannaim is Rabban Gamliel and Rabbi Eliezer, disciples of Rabban Yohanan ben Zakkai, and they are already sitting in Yavneh, no longer in the Chamber of Hewn Stone. Meaning that basically the Sanhedrin existed as long as there were the Zugot, say Hillel and Shammai and a bit of their descendants, and that’s it, and then it ended. The destruction came, the Temple was destroyed, there is no longer a Chamber of Hewn Stone. The Sanhedrin goes into exile to Yavneh. There are a few residual powers that remain in the hands of the Sanhedrin even when it goes into exile elsewhere, by virtue of the fact that there are ordained sages there and there is consensus that this is the supreme court, but basically it is no longer a Sanhedrin in the full sense. “Do not deviate” probably no longer exists there in full Torah-level force.
[Speaker D] After
[Rabbi Michael Abraham] That ended—there is no ordination at all anymore. In Babylonia there is no ordination at all, none. Not only is there no Sanhedrin, there is no ordination at all. So there there is no “do not deviate” at all. Basically, formal authority was canceled; it no longer exists from the time the Sanhedrin ended. The exception to this is the Talmud. Why? It is accepted among all the sages that the Talmud has formal authority—not because it is right; it has formal authority. Why? Because all the sages of Israel accepted it upon themselves like a renewed giving of the Torah. Just as the Torah has formal authority. Okay, all the sages of Israel—that is the accepted model; that is how the Kesef Mishneh writes in the laws of rebels against the court—all the sages of Israel accepted upon themselves the authority of the Talmud, and therefore the Talmud has formal authority, and that’s it. From there onward, the only halakhic authorities that exist are substantive authority. What does that mean? Say there is a great Torah sage, so he’s an expert, and as an expert, if he says something, he is probably right. So it makes sense to listen to him, but that is not formal authority. Meaning that if I did not listen to him, no one can sue me for not listening to him. I’m only taking a risk—that if I did not listen to him, I’m probably mistaken. And then people will come to me with complaints and say, look, there was a great sage here who said that this is the Jewish law, and you did otherwise—you should have taken him into account, because you know he is a great sage, he is probably right. So the claim against me is not by virtue of that sage’s authority—I wasn’t obligated to listen to him—but by virtue of his substantive authority, like any expert, like an expert in medicine, law, economics, physics, or whatever. He is also an expert in Jewish law. So there is authority after the Talmud as well, but it is only substantive authority, not formal authority. And the practical difference this makes is that in a place where I am convinced that he is mistaken, even though he is a great sage, then I may decide not to listen to him. In formal authority there is no such option. Because even if I think they are mistaken, they are the Sanhedrin, and I must listen to them. Here it’s not a matter of taking a risk. Where the authority is substantive authority, it’s like a doctor. Say a doctor prescribes a certain medicine for me. Now I’m not a doctor, but somehow I checked, I consulted, I reached the conclusion that I’m convinced he is mistaken. If I’m sufficiently convinced of that, maybe I won’t listen to him. I’m taking a risk, but I won’t listen to him. And no one can come to me with complaints for not listening to him. He’s an expert? Fine. I took seriously what he said, I checked, I checked, and in the end I still reached the conclusion that I think he’s mistaken, and I decided not to listen to him. That’s perfectly fine; no one can come to me with complaints over that. Okay? Therefore all authorities from the sealing of the Talmud onward are basically substantive authorities and not formal authorities. That is very important.
[Speaker D] From the Torah’s perspective.
[Rabbi Michael Abraham] From the standpoint of Jewish law. What do you mean, “the Torah”?
[Speaker D] Because I know that, say, there were rabbis who had power in their community, and someone who was—no, wait, wait—through excommunication.
[Rabbi Michael Abraham] Ostracism and excommunication are something else. That doesn’t mean he violated “do not deviate.” On the contrary, those are sanctions that come in a place where you don’t have the formal prohibition, and you need to apply some sanctions in order somehow to preserve the authority of the halakhic decisors. Not formal authority. No, it’s not formal authority, again. Their authority is substantive authority. But what? A certain community can say, look, since the authority is substantive authority and after all anyone can disagree, we build some external, technical means or something like that in order to create formal authority here out of thin air. For example, I’ll give a less extreme example than excommunications and things like that: a community that accepts a rabbi upon itself. Okay, he has formal authority with respect to the community. But that authority doesn’t stem from “do not deviate,” from ordination, from the Sanhedrin, from the Torah. It stems from below, not from above. The community accepted the rabbi upon itself. If you accepted him upon yourselves, then you obligated yourselves. It’s like contract law. Meaning, you have to stand by what you accepted upon yourselves. In contrast, in the Sanhedrin their authority doesn’t stem from the fact that we accepted them upon ourselves, but from the fact that the Holy One, blessed be He, decided that this is the authorized body and we must listen to it. They are the representatives of the Holy One, blessed be He, not our representatives.
[Speaker D] If I was persuaded that it’s correct?
[Rabbi Michael Abraham] No, no—formal authority. That’s what I’m saying. In the Sanhedrin, the Sanhedrin has formal authority. Even if I was not persuaded that it’s correct, the Torah says, “do not deviate from all that they instruct you.” And therefore I must listen to them even though I did not choose them. They are ordained through an ordained chain from Moses our teacher. No, there aren’t public elections for the Sanhedrin, there are no elections for the Sanhedrin. So that is authority from above, authority from the Holy One, blessed be He, through Moses, through the ordained sages, ordained from the mouth of the ordained, and so it is authority from above. The authority of the mara de-atra over his community is authority created from below. He didn’t receive ordination from someone else and because of that I have to listen to him. I have to listen to him only if we as a community decided to accept his rulings upon ourselves. So our decision is what gives the authority, not that he has authority and therefore we have to obey. Because we decided to obey, he has authority.
[Speaker D] So the formal authority of the Sanhedrin and all the later ones who existed before ordination ended is from above. Meaning, from the fact that I believe in the Holy One, blessed be He, and in His command, and I understand that He commanded me to listen to them, so I listen to them. Exactly. As opposed to a kind of social covenant, where I choose to live in a certain place and accept its laws upon myself.
[Rabbi Michael Abraham] Exactly, exactly. And therefore that is authority that comes from below and not from above. And therefore there are concepts of formal authority even after the Talmud, but that is formal authority whose basis is not “do not deviate”—there is no “do not deviate”—but rather a kind of contract, social covenant, you put it well, some sort of communal or public contract. Every community that accepts this upon itself, that accepted upon itself this rabbi, that what he says is what will bind them. And of course that depends on the question: accepted for what purpose? For example, today community rabbis are generally not accepted on the understanding that they will determine what I do at home. What I do at home is my decision. I can consult whatever rabbi I want or not consult at all. They determine what happens in the synagogue, what happens in the public sphere—each community shapes his authority in its own way. And why is that? Because this authority comes from below, so the mouth that forbade is the mouth that permitted. If the community determines your authority, it also determines the boundaries of your authority. In contrast, authority that comes from above—those who determine its boundaries are the authorized sages themselves. They determine with respect to what there is authority, because they are representatives of the Holy One, blessed be He, and not my representatives, and therefore it is not in my hands to determine with respect to what their authority applies and with respect to what it does not. That’s in general. But maybe I want to complete the picture and then we’ll look a bit at some sources. There is an important limit to this picture, and that is the limit of autonomy. What does that mean? Even in a place where the authority is substantive authority and not formal authority, apparently still, if there is a greater sage, one should listen to him. True, not from the standpoint of formal authority, but from the standpoint that he is a greater sage and is probably right. So on the substantive level one should listen to him, not on the formal level. But there is a limit to that, and the limit is that there is value in ruling autonomously. Meaning, if a certain person reached a certain halakhic conclusion—we’re talking about a Torah scholar who can reach a halakhic conclusion—he reached a certain halakhic conclusion, he heard the words of the great halakhic decisor, he was not convinced, and he is qualified, not just some guy who doesn’t know how to learn, he is qualified—there is value in ruling autonomously, because that is what I think. Even though if the other one is a greater sage, then I myself also agree that the greater chance is that he is right. But despite the fact that the greater chance is that he is right, there is value in ruling autonomously.
[Speaker C] This goes back to what I asked earlier, but what you’re saying is—so there isn’t room? Room for what? To permit obligating a person who despaired of recovering a lost object? That if a Torah scholar comes to that conclusion, finds his justifications, even if greater ones before him said it.
[Rabbi Michael Abraham] He should do what he thinks—what’s the question? Why is that connected to the previous discussion? Yes, of course. Why is that connected to the previous discussion?
[Speaker C] It does mean a rebellious elder.
[Speaker D] A rebellious elder.
[Rabbi Michael Abraham] That’s opposite the Sanhedrin. But if you’re not a rebellious elder, there is no Sanhedrin, and you’re a Torah scholar and there is a greater Torah scholar—so the great Torah scholar always determines everything for his whole generation? Did he become the Sanhedrin? No. If I think otherwise—even though, again, I myself say that he is probably right because I agree that he is a greater Torah scholar than I am—but I checked as far as my hand can reach, and a judge has only what his eyes can see, and therefore I am obligated to rule according to the best of my understanding. Why, excuse me, did the sages not rule in accordance with Rabbi Meir? Because his colleagues could not get to the depth of his thinking. The Talmud says, “The reason I am sharper than my colleagues is that I saw Rabbi Meir from behind.” And he was so sharp that someone who only saw him from behind was already in a different league. That is of course a metaphorical expression. It’s saying how much Rabbi Meir was such a genius that nobody was in his league. He ate the inside and threw away the peel with Acher, right, there are many stories about Acher, and therefore the law was not ruled in accordance with him. Which is a very strange thing. After all, if he was such a genius, then in every place where I disagree with him I should have to rule like him. Because clearly he is right, because if I disagree with him I probably didn’t understand him. Because clearly he is such a genius that no one manages to understand him, so if I disagree with him I probably missed something. How can that be a reason not to rule like him? The answer is because there is a value of autonomy. If I reached a different conclusion even though Rabbi Meir says otherwise, and I myself say that the odds are he is right—but there is still an obligation to rule as I think. There is an obligation to issue an autonomous ruling. And therefore, in a place where the authority is substantive authority—if the authority is formal authority, there is no autonomy. The moment the Sanhedrin determined that this is the binding Jewish law, that is what it determined. If it doesn’t want to compel, it can decide not to determine a ruling, but once it determined that this is the binding Jewish law, no one can argue. Because that is formal authority. Therefore even if they are mistaken, it doesn’t matter; I still have to do it because they have formal authority. But when we are talking about a body that has only substantive authority, not formal authority, then on the one hand one must take its position seriously because after all it is a great Torah scholar and there is a reasonable chance that he is more right than I am. But after I took it seriously into account, if I reached the conclusion that I disagree, and I am a Torah scholar good enough to issue rulings, not just someone who understands nothing, then I have to rule what I think even though the odds are that I’m mistaken. That’s the claim. I’ll bring sources in a moment. Rabbi Meir is a good example of this, the Talmud regarding Rabbi Meir. I’ll perhaps bring an example—there’s a very interesting Magen Avraham. In Magen Avraham, section 156, in the Shulchan Arukh there it says at the end of the laws of the morning prayer, “and afterward he should go out to his business.” That’s it—that’s the section in the Shulchan Arukh. After you finish the prayer and everything, go out to your affairs. What that is, doesn’t matter. In the Magen Avraham there he brings a lot of laws that don’t have a natural place; he didn’t find where to slot them in. So he gathered all those laws there. One of those laws that Magen Avraham brings there is that you are allowed to say things in the name of a great person so that people will accept them from you. Falsely—the great person didn’t say it. Is one allowed to lie?
[Speaker E] If it’s a case where one is allowed to lie, that doesn’t go into the Shulchan…
[Rabbi Michael Abraham] It’s a Talmudic statement, in two places. He brings it from the Talmud. The Talmud says: one who wants to hang should hang on a high tree. That is, if I want to persuade you that selecting on the Sabbath is forbidden, or that something is forbidden on the Sabbath, and we have an argument—you should know, Rav Moshe Feinstein said this explicitly, that selecting on the Sabbath is forbidden. That’s a lie—he didn’t say it. Am I allowed to lie to you and say it in the name of Rav Moshe Feinstein so that you’ll accept it from me? Magen Avraham rules this as practical Jewish law, and there are two sources in the Talmud on this matter.
[Speaker C] There are three cases in which—
[Speaker D] —it is permitted to lie.
[Rabbi Michael Abraham] Do you know what I’m talking about? Yes. There are other places besides those three. This is in “These Found Objects,” right, three things—bed, tractate, and so on. Ah, but how does that fit? Now the question is: how can this be permitted? Listen to what I think the explanation is.
[Speaker D] That it’s not—wait—
[Rabbi Michael Abraham] The explanation is this: if in fact you would accept the words because I said them in the name of Rav Moshe Feinstein, then obviously that would be forbidden. Because then I’m telling you my nonsense, hanging it on Rav Moshe Feinstein, and causing you to stumble into a prohibition. After all, if I didn’t manage to persuade you, and let’s say we’re both sages on roughly the same level, and then I pull some ace out of my sleeve—yeah, Rav Moshe Feinstein—and you immediately accept it, then I’m causing you to stumble into a prohibition. It is inconceivable that they would permit such a thing. Therefore it is clear that this permission in the Talmud and in Magen Avraham is based on the opposite assumption. The assumption is that even if I say it in the name of Rav Moshe Feinstein, you still won’t accept it—and only for that reason am I allowed to say it in his name. So you’ll ask: if that’s so, then what do we need this for? The answer is this. If I tell you something and I feel that you’re not seriously considering my arguments because you don’t take me seriously, okay? Then—look—Rav Moshe Feinstein said it. Now the assumption is that you won’t accept it automatically even if Rav Moshe Feinstein said it, but now at least you will consider it seriously before you form your position. Because Rav Moshe Feinstein is not a reed cutter in the swamp. So you’ll think ten times, and afterward you’ll reach your own position—either you’ll agree with what he says or you’ll disagree with what he says. But you’ll treat it seriously. That is permitted. Why? Because I’m not causing you to stumble in anything. I’m simply making you seriously consider additional arguments that, in my sense, you were not taking seriously.
[Speaker C] But how can you test that? How can you know for sure that he won’t take it as some provocative story?
[Rabbi Michael Abraham] I don’t know that there’s a provocateur here. I know that his basic approach is to weigh every position and decide for himself.
[Speaker C] I spoke with a friend, and I told him Maimonides said this, and then he said, it doesn’t matter, I disagree with Maimonides.
[Rabbi Michael Abraham] He said, okay. Meaning, the assumption is that this Jewish law is stated precisely because of the assumption that we are not supposed to accept things from a great person even if we heard them in his name. That is the basic premise of this Jewish law.
[Speaker C] Like the Mishneh Torah and Maimonides.
[Rabbi Michael Abraham] And that is exactly what I said before: substantive authority should cause me to seriously consider what Rabbi Moshe Feinstein said, but not to accept it automatically just because he said it. Automatic acceptance would be formal authority. Substantive authority means that he is an expert; I do not casually dismiss his words out of hand. I will consider them seriously. Again, I’m talking about someone who is a Torah scholar and can issue halakhic rulings on his own, right? So all it does is make me seriously weigh what he said before I formulate my own position. So in truth it is permitted for me even to say things falsely in his name. That’s the claim. I think it is hard to understand this any other way. For example, take a famous story from Eastern Europe at the beginning of the twentieth century—or really the end of the nineteenth century. Someone forged, even at the end of the nineteenth century, forged a Jerusalem Talmud on Kodashim. After all, there is no Jerusalem Talmud on Kodashim. Okay? There is only the Babylonian Talmud. And he said he had found a manuscript, found the Jerusalem Talmud on Kodashim that had been missing for two thousand years—he found it. Okay? Now this was a forgery, it really was a forgery. All the sages came out against it, and some of them—he did it very skillfully, meaning they did not know, is it forged, is it not forged? In the end it turned out to be a forgery, and they shouted at him and were angry at him: how can you do such a thing, and so on. Now books were written about this. Books were written about it. But I ask myself: what did they want from him? There is a Jewish law in the Magen Avraham, based on the Talmud, that says you are allowed to say things in the name of a great person so that people will accept them from you. So what’s the problem? He was fine. They can choose not to accept it, but he acted lawfully. What did they want from him? The answer is no. Because the Talmud has formal authority. And if I hear something written in the Talmud, I have to obey even if I do not agree. To hang your argument on a tree like that is forbidden. Because you are causing me to stumble into prohibitions. The whole premise of this permission is that you are hanging your argument on a tree that is substantive authority, not formal authority—which at most will cause me to seriously consider the arguments, but in the end I will decide as I decide. That is perfectly fine. But when you hang it on the Talmud, the Talmud has formal authority. It is like saying that the Sanhedrin determined that sorting on the Sabbath is forbidden when they did not determine that. Here I have no choice; if the Sanhedrin said it, then I am obligated to obey. So you are causing me to stumble into a prohibition in a way that I will be forced to accept. That is forbidden. Therefore I always say: the claims against someone who forges are always claims against someone who forges formal authority, not someone who forges substantive authority. By the way, there was another case, with Besamim Rosh and the commentary Kisei Deharsena, where someone forged a book and attributed it to the Rosh.
[Speaker D] And that too is a forgery.
[Rabbi Michael Abraham] To this day there are arguments whether it is a forgery or not. In academia it is already fairly clear that it is a forgery, but among rabbis it is not completely clear whether it is a forgery or not. There are those who claim that it really is a manuscript of the Rosh; there are those who claim it is not. Apparently it was a forgery; that is now the accepted view. But there, because it was the Rosh, who is one of the medieval authorities (Rishonim), it is not Talmud, so I think it is legitimate. What? But because—and we will soon see this—because it is accepted in the halakhic world that the medieval authorities (Rishonim) have formal authority, I do not agree with that, and I will soon explain. But if that really is accepted in the halakhic world, then if that is so, you are not allowed to do it.
[Speaker C] Even though—
[Rabbi Michael Abraham] Even though they are mistaken.
[Speaker C] So why wasn’t the Mishneh Torah accepted?
[Rabbi Michael Abraham] Nothing—
[Speaker C] I mean, none of the medieval authorities (Rishonim)—
[Rabbi Michael Abraham] In my view, none of them has formal authority. But the Mishneh Torah—no, right? It’s not specifically the Mishneh Torah. But in Jewish law it is accepted that they do. It is accepted by many halakhic decisors that one does not disagree with the medieval authorities (Rishonim). If there is a dispute among the medieval authorities (Rishonim), that is a different discussion. But with respect to the medieval authorities (Rishonim) in principle, one does not disagree.
[Speaker C] That’s what’s accepted. Which Mishneh Torah does not disagree? It seems—
[Rabbi Michael Abraham] With the medieval authorities (Rishonim), if there is another medieval authority (Rishon) who disagrees with him. The Mishneh Torah is one among the medieval authorities (Rishonim). I evaluate the Mishneh Torah too, along with all the medieval authorities (Rishonim).
[Speaker D] Rabbi, I have a question about the Talmud as formal authority, because I know of a case where Maimonides actually disagrees with the Mishnah.
[Rabbi Michael Abraham] Only where he claims it is a factual error. Where the error is factual—like sorcery and the evil eye and things like that, which Maimonides does not accept.
[Speaker D] There is, for example, the case of sending away the mother bird. Sending away the mother bird, where the Mishnah says that—
[Rabbi Michael Abraham] No, no, that is a different discussion. There it is not a halakhic ruling. It says, “If one says, ‘Your mercy extends to the bird’s nest’—we silence him,” and so on. There is a contradiction between the Guide for the Perplexed and the Mishneh Torah on that issue, but there it is interpretation. The claim, in the end—and now I am returning to our line of argument—is that with respect to substantive authority there is no problem in lying in the name of someone who has substantive authority, precisely because there is no obligation to accept what he said. Hm? Only if you also know that your interlocutor will not accept it automatically. If you know he will accept it automatically, then you may not do it, even though in my view the one who accepts it automatically is mistaken. But I know that many people tend to accept it automatically, so even I—who do not think they are right in this approach—still may not lie to them and tell them that this is what Maimonides, or the Rosh, or the Rashba, or whoever, said. Right? Because I am leading them to accept it automatically, and that is simply causing someone to stumble into prohibition, and I am forbidden to do that. But the Magen Avraham, who rules that this is permitted, assumes that from the standpoint of Jewish law it is obvious to everyone that you do not have to accept things the medieval authorities (Rishonim) said. Now let’s see a source that discusses this.
[Speaker D] So, Rabbi, if I do not accept a person who is a substantive authority—let’s say an elder, a Torah scholar, and there is someone who is recognized as probably wiser than I am—and still I hear his reasoning and I am not convinced, then it’s not that I think that in this case he is right.
[Rabbi Michael Abraham] No. I would ask you: what would you bet? He also heard you and was not convinced, and you also heard him and were not convinced. So I, as an observer from the side, think—and I think you too could admit this—that most likely he is right. Never mind that you were not convinced because you do not see why he is right, but just try to step out of your own shoes and ask: after all, he thinks he is right just as you think you are right, so between the two of you, which is more likely? Quite reasonably, it is more likely that he is right than that you are. You agree with that too. And still I claim: even though you agree with that, you should act the way you think. Like the Talmud says regarding Rabbi Meir. All right? So now I want us to look together at the Rosh on Sanhedrin. I’ll do this quickly because I want to finish this section today, so that we have some sort of integral boundary. “The Baal HaMaor, of blessed memory, wrote,” tractate Sanhedrin, chapter 4, section 6: “The Baal HaMaor, of blessed memory, wrote: I heard in the name of a great sage among the sages of our generation who preceded us—”
[Speaker B] “That nowadays we do not have someone who errs in judgment.”
[Rabbi Michael Abraham] Right, now here it is. “The Baal HaMaor, of blessed memory, wrote”—you see?—“in the name of a great sage among the sages of our generation who preceded us, that nowadays,” meaning in our time—we are talking about the Baal HaMaor, around the twelfth century, okay? Around the period of Maimonides or something like that, a little after the Rif, the author of the glosses on the Rif—“I heard in the name of a great sage among the sages of our generation who preceded us, that nowadays, in our period, there is no such thing as one who errs in judgment.” The Talmud distinguishes between “one who errs in judgment” and “one who errs in a Mishnah.” “One who errs in judgment” means someone whose reasoning is not sound. “One who errs in a Mishnah” means someone who contradicts an explicit source that has been ruled as Jewish law, okay? A ruling of the Sanhedrin or something like that. So he says: in our era there is no such thing as erring in judgment; all errors are errors in a Mishnah. So says that sage whom the Baal HaMaor cites. “For all the laws are decided and in our hands, either from the Talmud or from the Geonim after the Talmud; therefore nowadays you do not find one who errs in judgment, rather all who err are those who err in a Mishnah.” In short, the Geonim and the Talmud and the Mishnah all receive the status of Mishnah. Whoever departs from them is one who errs in a Mishnah; it is not one who errs in judgment. In my language: they all have formal authority. You have to listen, whether you agree with them or not; for us it is like a Mishnah. Even the Geonim are like a Mishnah. We are talking about how the medieval authorities (Rishonim) related to the Geonim. Okay? “And these words do not seem correct to me,” says the Baal HaMaor. So this is the sage whom the Baal HaMaor cites, and the Baal HaMaor himself says: “And these words do not seem correct to me. Rather, anyone whose error is not demonstrable from the Mishnah and from the explicit Talmud without doubt”—meaning, not in a way dependent on interpretation. If it depends on interpretation, then that is not the Talmud, that is your interpretation. But if it is not interpretation, and it is stated explicitly in the Talmud or in the Mishnah—“he is not one who errs in a Mishnah but one who errs in judgment.” In other words, the Geonim after the Talmud do not have the status of Mishnah; they do not have formal authority. Formal authority ended with the Talmud. The Talmud and Mishnah have it; formal authority ended with the Talmud. “Like that case above where they called him ‘the mouse who lay down on judgment’”—doesn’t matter, he cites some case in the Talmud—“so too in every similar case where his error cannot be demonstrated from our Mishnah or from our explicit Talmud,” where you cannot show it explicitly in the Mishnah or Talmud, “he is one who errs in judgment. And what the Geonim ruled after the close of the Talmud by decisive reasoning, and not from a clear and decided law from the Talmud”—innovations they introduced, not something they drew directly from the Talmud itself—“that is just the regular style of our Talmudic discussion, and one who errs in it errs in judgment and not in a Mishnah.” The Geonim do not have the status of formal authority.
[Speaker C] What about the medieval authorities (Rishonim)—you’re saying this—
[Rabbi Michael Abraham] Also about the Geonim?
[Speaker C] He says this about the Geonim.
[Rabbi Michael Abraham] You’re saying it about the Geonim—what is the status of the medieval authorities (Rishonim)? He says they don’t have it. Everything after the Talmud. I’m showing you here that the medieval authorities (Rishonim) themselves say this about the Geonim. Everything after the Talmud has no formal authority; at most it has substantive authority, and therefore you can disagree if you do not agree.
[Speaker D] This is the Rosh bringing the Baal HaMaor, and then—
[Rabbi Michael Abraham] We haven’t yet gotten to the Rosh. So far we’ve seen the sage cited by the Baal HaMaor and the words of the Baal HaMaor himself.
[Speaker C] He says that the various Geonim have substantive authority.
[Rabbi Michael Abraham] Correct, but not formal authority. And therefore if you do not agree with them, you have the right to disagree.
[Speaker C] And if I don’t agree that the Sabbath must be kept, then I don’t have to keep the Sabbath?
[Rabbi Michael Abraham] Keeping the Sabbath is written in the Talmud and in the Torah it is written that one must keep the Sabbath. If it were only something the Geonim innovated, then no.
[Speaker C] Chicken with milk, chicken with milk is what you meant.
[Rabbi Michael Abraham] Chicken with milk is also written in the Talmud; that’s all Talmud. If there are things that are not from the Talmud—
[Speaker C] Chicken with milk is written in the Talmud?
[Rabbi Michael Abraham] Yes. Is it forbidden? Yes. In Rabbi Yosei HaGelili’s place they ate chicken with milk, but Jewish law was ruled that it is forbidden.
[Speaker C] The Jewish law, but not in the Talmud? In the Talmud, in the Talmud. Say, for example, a cellphone on the Sabbath?
[Rabbi Michael Abraham] No, that is something else. Here one can argue. If you have an interpretation that fits the Talmud and permits a cellphone on the Sabbath, even if most sages think otherwise, that is no longer one who errs in a Mishnah. Maybe you would be one who errs in judgment, but not one who errs in a Mishnah, because from the perspective of the Talmud you have an interpretation that holds water. Now: “And what the Geonim ruled after the close of the Talmud by decisive reasoning, and not from a clear and decided law from the Talmud, is merely our regular Talmudic mode, and whoever errs in it errs in judgment and not in a Mishnah.” Up to here, that is the Baal HaMaor’s response to that sage. “And the Raavad wrote concerning the words of the Baal HaMaor”—this is now a third view—“the Raavad wrote concerning the words of the Baal HaMaor that the sage spoke the truth: if one erred regarding the rulings of the Geonim because he had not heard their words, and had he heard them he would truly and clearly have retracted, this is one who errs in a Mishnah.” What is he saying? He is saying: know that that sage who said that erring in the words of the Geonim is also erring in a Mishnah is right—but with a limitation. What does that mean? If I issued some ruling, and now they bring me a citation from the Geonim saying otherwise, and after seeing the citation from the Geonim I am convinced that they are right—if I had known that, I would not have ruled as I did—that is called erring in a Mishnah. But he agrees that if I was not convinced, and even after I saw the words in the name of the Geonim I still stand my ground, then no. All right? So there are different shades here, but still it is quite clear that after the Talmud the status is already very limited. “And I am close to saying that even if he would disagree with the ruling of a Gaon because it seems to him according to his understanding not like the Gaon’s view and not like his interpretation, even this is one who errs in a Mishnah.” That is how the Raavad continues and says. “For nowadays we are not permitted to disagree with the words of a Gaon on the basis of our own reasoning, to interpret the matter another way such that the law changes from the Gaon’s ruling, unless with a famous difficulty—and this is something not found.” End quote. Different shades: the question is whether it has to be an objection accepted by the whole generation and then one may disagree with the Geonim, or whether one may disagree with them also on the basis of reasoning, or whether one may not disagree with them at all. The argument is about how far one may disagree with the Geonim. About the Talmud there is no argument—that is an error in a Mishnah.
[Speaker C] No. It’s possible in specific cases.
[Rabbi Michael Abraham] So it depends. So far we have seen three views regarding disagreement with the Geonim: either you cannot disagree even with the Geonim—that is the view of that sage whom the Baal HaMaor cites. The Baal HaMaor argues that one may disagree with the Geonim. The Raavad argues that one may disagree with the Geonim, but after hearing their words I still have to stand by my opinion, and perhaps only with a famous difficulty, and not just because my reasoning seems different.
[Speaker C] Could you please explain more? I also studied the Geonim, but could you explain in broad terms what the Geonim are?
[Rabbi Michael Abraham] Historically, the Talmud was sealed in the sixth-seventh century CE. That is the end of the Amoraic period. After that came the Savoraic period, about one to two hundred years.
[Speaker C] When they added more?
[Rabbi Michael Abraham] Yes, additions of one kind or another probably entered into the Talmud then. Probably. It is not clear.
[Speaker C] There are some cases in Kiddushin where they say, like—
[Rabbi Michael Abraham] Look at the first page of Kiddushin. Tosafot claims that it is a Savoraic addition. Tosafot says it—I don’t know.
[Speaker C] Not that, but—
[Speaker D] You see it in most—never mind, never mind. But I think there’s a passage with Nachmanides when he was in debate with the Christians and they wanted to bring some section from the Talmud, and he said no, that is not from the original Talmud.
[Rabbi Michael Abraham] No, there he is talking about aggadic literature, and with aggadic literature—do not raise difficulties from aggadic literature; the Talmud can be mistaken there. That’s the Savoraim. The Geonim come after the Savoraim—the ninth, tenth, roughly eleventh century, then that period ends, and then the period of the medieval authorities (Rishonim) begins. The Rif is already one of the very earliest among the early medieval authorities (Rishonim), the Ri Migash is a student of the Rif, the Ri Migash after him, Maimonides, Nachmanides, Raavad, the authors of Tosafot, Rashi, yes, that already includes the medieval authorities (Rishonim). Okay? More or less the standard classification.
[Speaker C] What came after Maimonides?
[Rabbi Michael Abraham] I said Maimonides—what came before Maimonides, I listed. Rashi was a bit before Maimonides; Rashi was around 1040. Did Maimonides know Rashi? Possibly, I don’t know. Doesn’t matter.
[Speaker C] And the Geonim, they—
[Rabbi Michael Abraham] In any case, never mind. Historically that is the division. The division is: Savoraim, Geonim, medieval authorities (Rishonim). Which books belong to the Geonim? The She’iltot of Rav Achai Gaon, Halakhot Gedolot was written by one of the Geonim, there is a dispute over which of the Geonim wrote it. The responsa of the Geonim.
[Speaker D] They didn’t write in the Talmud? No. Saadia Gaon’s Emunot VeDeot too.
[Rabbi Michael Abraham] Right, but that is a philosophical work; I am talking about Jewish law at the moment.
[Speaker D] They wrote many books.
[Rabbi Michael Abraham] There is, yes, quite a bit of Geonic literature. There are responsa of the Geonim, a great many of them, in several editions. Yes, there is quite a bit of Geonic literature. Okay, in any case, that is what he says. And I say—and now I am moving on, now these are the words of the Rosh, until now these were all quotations from others—“And I say: certainly anyone who erred regarding the rulings of the Geonim, of blessed memory, because he had not heard their words, and when he was told the ruling of the Geonim it appeared right in his eyes, is one who errs in a Mishnah. And not only one who errs in the rulings of the Geonim, but even the sages in every generation after them are not mere reed-cutters in the swamp; and if he ruled not according to their words, and when he heard their words they appeared right in his eyes and he admitted he was mistaken, he is one who errs in a Mishnah and retracts. But if their words did not appear right in his eyes, and he brings proofs for his words accepted by the people of his generation”—meaning, the people of his generation say yes, his proofs hold water, he has a reasonable position. It does not matter whether he is right or not, but it is a reasonable position; he did not miss something due to a simple mistake—“Jephthah in his generation is like Samuel in his generation; you have only the judge who is in your days, and he may overturn their words.” He can disagree with the Geonim if he decides to. And note: he says, “Jephthah in his generation is like Samuel in his generation.” What does that mean? He is not claiming that Jephthah is like Samuel. Jephthah is inferior to Samuel, but Jephthah in his generation is the one who decides. Not because he is as great as Samuel—we discussed this before—but because for my generation, the sages of my generation are the ones who decide, even if they are smaller than the previous generation. They themselves can weigh the words of the sages of the previous generation, but if they have determined something, then they are the ones who determine it for their generation.
[Speaker C] Like Noah was righteous in his generations?
[Rabbi Michael Abraham] Fine. Okay. “You have only the judge who is in your days, and he may overturn their words.” Now look at the key sentence—and by the way, this is brought as Jewish law in the Shulchan Arukh in Choshen Mishpat, section 25: “For all matters that are not explicit in the Talmud arranged by Rav Ashi and Ravina, a person may overturn and rebuild, and even disagree with the words of the Geonim.” This is a key sentence. Here the statement is clearest. Everything after the Talmud—before the Talmud, no; in the Talmud itself there is formal authority. After the Talmud, if you disagree on rational grounds with someone as great as may stand before you, and you are competent in your generation—despite the decline of the generations, all that is fine, but in your generation you are competent—if you disagree with the sages of all previous generations, that is your right. On the assumption that even after hearing what they said, you still stand your ground, you still think differently. And this appears as Jewish law in the Shulchan Arukh, Choshen Mishpat section 25. Okay? One has to understand: this is a statement that there is no formal authority after the Talmud. Okay? That is what I said earlier. Now I just want, simply so that we finish, I just want to show you the reservation I mentioned. The reservation says that if you disagree with the sages of the generations after the Talmud, they do not have formal authority but substantive authority—that is what we have just seen. But we also saw that despite their substantive authority, and despite their being great sages—they were Samuel and I am Jephthah—still Jephthah in his generation is like Samuel in his generation; there is an obligation of autonomy. Meaning: if I think a certain way, even though I know that the sages of previous generations were greater than I am, still I have to go according to what I think. Here I want to show you the words of the Maharal briefly. The Maharal in Netivot HaTorah, chapter 15. All right? And there as well: “One who reads but has not served Torah scholars—Rabbi Eliezer says: this is an ignoramus. Rabbi Shmuel bar Nachmani says: this is a boor. Rabbi Yannai says: this is a Samaritan. Rav Acha bar Yaakov says: this is an amagushi.” What is an amagushi? An amagushi is a sorcerer. A sorcerer. Rav Nachman bar Yitzchak said: Rav Acha bar Yaakov’s view makes sense, for people say, ‘The sorcerer mutters and does not know what he mutters; the tanna recites and does not know what he recites.’” Just as the amagushi does not know what he is doing, so too that person quotes all kinds of earlier sages and does not know what he is quoting. Now he says this: “And the explanation of this”—up to this point these are the words of the Talmud. Now the Maharal says: let me explain this to you. “For when one learned Mishnah but did not serve a Torah scholar in order to clarify the reasons of the Mishnah, which are clear intellect—when one grasps the reasons of the Mishnah, he is called an ignoramus, because he did not acquire intellect. And Rabbi Shmuel added that he is a boor,” and so on—I’m skipping a little—“Rabbi Yannai said he is a Samaritan. And Rav Acha bar Yaakov said he is called an amagushi, a sorcerer, because he speaks and does not understand what he is saying. And such a thing is as if it is not Torah at all. And this is worse than all the rest; this title is worse than all the previous titles, because for him Torah is regarded like sorcery, which is a lowly and base thing and not an intellectual matter at all.” He is talking about someone who rules Jewish law because he quotes the Shulchan Arukh, the Talmud, and so on—and I am talking about someone who rules correctly, not that he errs in the ruling. But he does not understand the basis of the ruling. He says it like a donkey carrying books. So he says: that is like an amagushi. How do I know he is talking about someone who rules correctly? Look at his wording toward the end of the chapter. It says there that those who rule Jewish law on the basis of their Mishnah are destroyers of the world. So he says, and he explains: “Because they rule Jewish law from their Mishnah,” meaning that they rule even though they do not know the essential reason of the Mishnah. “And in this they destroy the world, because the world stands on Torah, and this is not considered Torah when one does not know the clarified reason of the Mishnah and the Torah, which is to instruct practical action, which is the essence of Torah, and on this the world stands. Therefore when they rule Jewish law from the Mishnah not on the basis of clear intellect, they are destroyers of the world, which stands on Torah.” They destroy the world, because the world stands on Torah, and to issue a correct ruling without understanding the reasons, just because you quote someone who is a great Torah scholar or a decisor or whatever, that destroys the world. Now look at what he says here. “Rashi, of blessed memory, explained that those who rule Jewish law from their Mishnah,” and so on, “but the explanation is not like his words at all. For the phrase ‘they rule Jewish law from their Mishnah’ implies a ruling that is true.” Rashi says that maybe they simply err because they do not know the reasons. He says no, that is mistaken. Even someone who rules correctly, if he rules without understanding the reasons—as it says there, “they rule Jewish law,” implying a true ruling. It would not make sense to say “a ruling that is an error”; otherwise they are not ruling Jewish law, they are just babbling. “After all, they are ruling Jewish law from the Mishnah”—that is the claim—not directly from the text of the Mishnah but from a book, yes. “He should have said: ‘They teach error from the Mishnah,’ not ‘They rule Jewish law from the Mishnah.’ But the explanation is as we have said: the essence of Torah is when one rules practical Jewish law, and this should emerge from Torah, for Torah is intellectual, from reasoning, and that is the Talmud, which is intellectual, and from this practical Jewish law should emerge.”
[Speaker D] Is he saying that the essence of Torah is basically to search for reasons?
[Rabbi Michael Abraham] To understand the reasons why I rule as I do. It is not enough to rule correctly; you have to understand the reasons. Look what he says here. This is the Maharal? Yes. “For these compilations would cause people to abandon the Talmud entirely—”
[Speaker D] And they would—
[Rabbi Michael Abraham] “And they would issue rulings from their compilations,” yes, from the Shulchan Arukh and Maimonides. They should never have written them. It is forbidden to issue rulings from Maimonides and the Shulchan Arukh, even though the ruling is correct. Maimonides and the Shulchan Arukh stated what the Jewish law is, but if you do not understand where it comes from, you are not allowed to issue a ruling. Meaning, someone who rules from the Shulchan Arukh and Maimonides is a sinner; he is the amagushi. Now look what he writes: “For it is more correct and more fitting”—an astonishing sentence, a famous one from the Maharal—“for one to rule from the Talmud, and although there is concern that he may not go on the path of truth and may not rule the law correctly, so that the practical ruling may be according to the truth, nevertheless a sage has only what his intellect gives him and understands from the Talmud. And when his understanding and wisdom mislead him, even so he is beloved to God when he rules according to what follows from his intellect. And a judge has only what his eyes see. And this is better than someone who rules from a single compilation and does not know the reason of the matter at all, who walks like a blind man on the road.” What is he saying? He is basically saying that if I rule from Maimonides, then most likely I will be right. And you rule from your own reasoning through analysis of the Talmud itself. Most likely I am right and you are wrong. Still, you are more beloved in the eyes of the Holy One, blessed be He, even though you are wrong—you are desecrating the Sabbath. And I am keeping the Sabbath according to Jewish law. You are more beloved in the eyes of the Holy One, blessed be He, than I am. Because the value of ruling according to what I think—the value of autonomy—even comes at the cost of the value of truth. Meaning, even if you do not rule correctly, but if that is what emerged from your reasoning—we spoke at the beginning of the lesson about judging a person according to his own approach; this is exactly it. I said we would get to this today. So this is what he says. A person should rule according to his own approach even where he himself understands that Maimonides was a greater Torah scholar. And if my conclusion differs from Maimonides, it is likely that he is right and I am wrong, just like with Rabbi Meir in the Talmud. This is what he says. He says: in the eyes of the Holy One, blessed be He, it is preferable that you rule as you think, even though it goes against Maimonides and against the Shulchan Arukh and against all these compilations.
[Speaker D] By the way, I heard this about the Maharal; I didn’t know it was this way, that the book—
[Rabbi Michael Abraham] The Maharal was at the head of those who fought against the Shulchan Arukh. It was a major battle he conducted. It is called the codification controversy. There were battles like this against Maimonides too. It is a battle against this whole idea: let’s write a code book so that people will read from the code book and issue rulings from it. As many do today with the Shulchan Arukh, Mishnah Berurah, and the like. The Maharal says that anyone who does that is the amagushi. It is forbidden to rule from those books. You must rule only through analysis of the passages, while also seeing Maimonides and the Shulchan Arukh and taking them into account, but I study the passage and in the end the conclusion I reach—that is how I have to rule. Even if it comes out against the Shulchan Arukh and against Maimonides. Even though I myself, if you ask me, will say that most likely they are right and I am wrong. But the obligation of autonomy is that I must rule as I think. That is basically the claim. That completes the framework I wanted to present on the question of authority. I think I’ll stop here.
[Speaker D] But in the context of expertise, let’s say there are experts, and as you said it really makes more sense that they are right and not me. So maybe there is room to submit oneself before someone great? Meaning, a person might say: I understand that however much I understand, my knowledge is partial, and because I want to aspire to fulfill the commandments in the best possible way, I subordinate myself to the expert.
[Rabbi Michael Abraham] So he says—the Maharal says—that this is not good. You are doing something very bad. It is like the amagushi. You are not allowed to subordinate yourself. Because the value of truth is indeed very important, to do Jewish law correctly, but the value of autonomy is no less important—even at the cost of the value of truth. Meaning, if you rule according to your own approach, even though sometimes you will pay the price of not ruling correctly, still this is more beloved in the eyes of the Holy One, blessed be He, than someone who certainly rules—or almost certainly rules—correctly, but does it like an amagushi. He simply does not know what he is talking about; he quotes the Shulchan Arukh. Those Mishnah Berurah decisors, where everything they rule is just because the Mishnah Berurah writes this here and that there—no. You have to understand the reasons for the laws, where they come from, and arrive at your own conclusion. That is how one must rule.
[Speaker D] Is this a matter of issuing halakhic rulings, or also of observing Jewish law?
[Rabbi Michael Abraham] Issuing halakhic rulings. Not observing Jewish law? It is also observing Jewish law. Ruling and observance. What you have to observe is what you rule. Now, someone who is not competent—that is a different discussion. I am not talking about someone who is not a Torah scholar and truly cannot rule. That is simply not serious. I am talking about someone who can, who has reached the level of issuing rulings, who knows how to rule, but he is not Maimonides and not the Shulchan Arukh. Fine—Jephthah in his generation is like Samuel in his generation, exactly what we saw in the Rosh. The Maharal is really just spelling out more fully what we also saw in the Rosh—that is my claim. Right. Fine, let’s stop here. More power to you.
[Speaker D] Thank you, Rabbi. Rabbi, what—this is the last lesson?
[Rabbi Michael Abraham] This semester, yes.
[Speaker D] Now next semester I saw that the Rabbi continues and teaches at the same time. Is that a continuation of this course?
[Rabbi Michael Abraham] In principle yes. It depends what the composition of the class will be; you can never know.
[Speaker D] But—
[Rabbi Michael Abraham] In principle, yes.