Halachic Thought – 5783 – Lesson 22

Table of Contents

• Changes in Jewish law, the slippery slope, and interpretive conservatism
• The question of authority and the need to separate the discussions
• Substantive authority and formal authority
• The authority of the Talmud, bottom-up acceptance, and the attitude toward “mystical” explanations
• The relations among morality, norms, and power: Nuremberg and the rejection of Darwinism
• The limits of obedience and the capacity for judgment vis-à-vis the Holy One, the Binding of Isaac, and the experience of prophecy
• Authority after the Sanhedrin: Geonim, medieval authorities (Rishonim), and later authorities (Acharonim), and the critique of the “leading sage of the generation”
• Maimonides, Laws of Rebels: the Great Court, Torah-level versus rabbinic law, and resolving the contradictions
• The Raavad, the decline of the generations, and the claim of a “dead letter”
• A fence around the Torah and the hardening of the annulment of decrees: law 3
• Temporary emergency ruling, temporary uprooting, and suspension as a practical mechanism
• Administering blows and punishments outside strict law, disciplinary flogging, and the authority of courts nowadays

Summary

General Overview

The text presents a move from a discussion of changes in Jewish law, through an argument for interpretive conservatism, to the question of authority, while rejecting the assumption that every proposal for change necessarily leads to a slippery slope. It distinguishes between the acceptability of the interpretive position itself and the institutional question of who is authorized to decide, and argues that even if a change fails for reasons of authority, one still has to admit that the principled argument may be correct. It develops a distinction between the substantive authority of an expert and the formal authority of an institution, and applies it to the Sanhedrin, the Talmud, the medieval authorities (Rishonim), and the later authorities (Acharonim), as well as to public-leadership relations such as the local halakhic authority. It reads Maimonides’ Laws of Rebels and explains how interpretation of Torah-level law can be changed by a later court, whereas rabbinic legislation requires stricter conditions, and in the end proposes that the route of temporary emergency ruling and suspension may serve as a practical bypass mechanism for problems of authority even in our time.

Changes in Jewish law, the slippery slope, and interpretive conservatism

The speaker begins with the example of changing norms, like the move to swimsuits, and before that concludes with an application of the Meiri regarding gentiles as an argument of the interpretive-conservative type. He states that when someone proposes an interpretation that grounds a change in Jewish law, he does not necessarily need to bring proofs from sources, because such an interpretation has an inherent advantage over unreasoned conservatism that is satisfied with saying that things are not changed. He rejects the formalistic fear of a slippery slope by arguing that not every argument “holds water,” and that common sense filters out weak proposals. He adds that someone who wants to commit a transgression will do so even without an interpretation, whereas someone who offers an interpretation as a claim about normativity must make sure the interpretation is convincing.

The question of authority and the need to separate the discussions

The speaker argues that the discussion of change in Jewish law immediately raises two common claims: the slippery slope and the question of authority—who is authorized to decide. He seeks to distinguish between the substantive discussion of whether the change is correct and the blocking claim that there is no authority, and emphasizes that even if the conclusion of the process is that the change fails because of authority, one still has to recognize that the principled argument “gets off the ground” and is valid. He explains that avoiding discussion on the merits reduces motivation to look for mechanisms that bypass authority problems, whereas recognizing that the change is sensible and that there is even a price for not adopting it creates an impulse to find an institutional solution. He lays out the structure he has chosen: first clarifying the interpretation and the change in themselves, and only afterward addressing the question of authority in an orderly way.

Substantive authority and formal authority

The speaker defines formal authority as authority that derives from the very fact that a body is an authorized institution, and illustrates this with the Knesset, whose laws are binding not because it is always right but because it is the legislature. He defines substantive authority as the authority of an expert, such as a doctor, where there is no obligation to obey, but reason suggests that it is worth listening because the expert knows more. He presents the Holy One as a case where, in common conceptions, both tracks exist together, and proposes reading “Is He not your Father, your Maker? He made you and established you” as a mechanism of formal authority by virtue of creation alongside substantive authority by virtue of knowledge. He states that when the Torah says, “You shall not deviate,” it is speaking of formal authority entrusted to the Sanhedrin, not substantive authority, and he brings Rabbi Akiva as an example of someone who may know more and yet is still bound by the Sanhedrin because they are the Sanhedrin. He emphasizes that formal authority is not necessarily absolute and can be overridden by a higher formal authority, as is learned from “Every man shall fear his mother and his father, and you shall keep My Sabbaths” regarding parents.

The authority of the Talmud, bottom-up acceptance, and the attitude toward “mystical” explanations

The speaker presents the binding nature of the Talmud as a formal authority that does not stem from “heavenly burning angels” but from the fact that “we accepted it upon ourselves,” and attributes this to the Kesef Mishneh in Laws of Rebels, chapter 2. He argues that explanations about divine inspiration, angels, and reviving the dead are “explanations for children” that do not touch the basis of the obligation, and that adults can understand obedience to law even without assuming that the authority figure is always right. He notes that formal authority coming from below still requires justification on the part of those granting the authority, and distinguishes between authority whose source is public authorization and authority whose source is divine command. He places the local halakhic authority as a domain-specific formal authority that derives from the community’s acceptance, so that the scope of the authority is determined by what the community actually granted.

The relations among morality, norms, and power: Nuremberg and the rejection of Darwinism

The speaker enters into the conflict over whether “ordinary” formal authority is limited by basic morality, through a discussion of the Nuremberg trials and the claim that there is a universal morality. He rejects moral relativism and argues that beyond power there is a normative question of justice, and that a trial is conducted in order to clarify rightness, not merely to exercise power. He brings examples of current political justifications, such as Putin calling Ukraine “Nazis,” to show that even someone acting through power still makes an effort to justify himself in moral terms. He defines the assumption that power alone justifies as “Darwinism” and insists that actual human discourse rests on justifications and not on sheer power alone.

The limits of obedience and the capacity for judgment vis-à-vis the Holy One, the Binding of Isaac, and the experience of prophecy

The speaker argues that there is no absolute even with respect to formal obedience to the Holy One, and illustrates this with an arbitrary command like “stop breathing,” which he says he would not obey, distinguishing between self-sacrifice for a value and a command devoid of meaning. He presents criticism of the Binding of Isaac as a failure stemming from the fact that the critic did not experience prophetic revelation and therefore does not understand how a prophet “knows” that it really is the Holy One. He brings Kierkegaard’s Fear and Trembling as a position according to which the religious life is paradox, and notes its proximity to Christian thought and its adoption in various circles. He tells a parable from a Chabad repeater about a blind man and a sighted man who enter a room full of furniture, and after an hour the sighted man “sees” that the room is empty, in order to illustrate that direct experience can override logical proof in the eyes of someone who knows the sense involved. He argues that a priori assumptions create a hermeneutic circle, and gives an example from interpretations of Urban’s actions and the transfer of the embassy to Jerusalem as an illustration of “self-echoing,” in which the interpretation both relies on the assumption and reinforces it.

Authority after the Sanhedrin: Geonim, medieval authorities (Rishonim), and later authorities (Acharonim), and the critique of the “leading sage of the generation”

The speaker sums up that since the end of ordination and the nullification of the Sanhedrin, “there is no more formal authority” in Jewish law, and only the substantive authority of Torah scholars remains. He presents a sharp divide between the Sanhedrin and the Talmud as formal authority, and the medieval authorities (Rishonim) and later authorities (Acharonim), who have “no authority at all” except the weight of expertise, so that someone convinced that they are mistaken is not obligated to listen to them. He cites the words of the Rosh in Sanhedrin, chapter 4, section 6, which entered the Shulchan Arukh, Choshen Mishpat 25, according to which there is no formal authority after the Talmud and one may disagree with later sages “with proofs.” He describes the local halakhic authority as the only formal authority nowadays by virtue of the community’s acceptance, and the concepts of the “leading sage of the generation” as “inventions” with no basis. He notes that interpretation of Talmudic passages is always a substantive matter, because the halakhic decisor must be convinced by the textual basis and the reasonableness of the interpretation, even if sometimes the textual consideration decides against what seems logical.

Maimonides, Laws of Rebels: the Great Court, Torah-level versus rabbinic law, and resolving the contradictions

The speaker reads Maimonides, Laws of Rebels, chapter 2, law 1, and states that the Great Court can nullify a previous interpretation because “you have only the court of your own days.” He reads law 2, according to which a court that seeks to nullify a decree or ordinance that spread throughout Israel must be greater “in wisdom and in number,” and explains that “in number” means the inclusion of the sages of the generation who agreed and accepted it. He points to an apparent contradiction between law 1 and law 2, and connects it to contradictions in the Talmudic passages in Eruvin and Beitzah, then presents the explanation of most medieval authorities (Rishonim) and of Maimonides that the difference is between laws created through interpretation of Torah-level law and rabbinic laws as legislation. He explains that interpretation of Torah-level law is not a move against the authority of the previous court but a dispute over what the Torah says, whereas in rabbinic legislation, annulment is a move against an institutional determination—“this is what we say”—and therefore requires superiority in wisdom and number. He reads this logic as a substantive explanation and not as the claim that the sages simply “strengthened their own words more than the words of the Torah.”

The Raavad, the decline of the generations, and the claim of a “dead letter”

The speaker brings the Raavad’s objection to Maimonides in the context of “adorning the markets of Jerusalem with fruit” and Rabban Yohanan ben Zakkai, who annulled it after the destruction, and emphasizes that the Raavad objects despite Maimonides’ claim that even if the reason has lapsed, one does not annul without greater stature. He explains that the objection rests on an assumption of the decline of the generations, according to which the later authority is “presumably not greater,” and argues that if this is a general assumption then law 2 becomes unworkable, because a later court will never be greater than the first. He compares this to Maimonides in the third root of the Book of Commandments, where he distinguishes between a temporary commandment and a permanent commandment that is not practically applicable, and proposes that a law can be theoretically correct even if it is not implemented in practice.

A fence around the Torah and the hardening of the annulment of decrees: law 3

The speaker reads Maimonides, Laws of Rebels, chapter 2, law 3, which distinguishes between ordinary ordinances and things that were prohibited “in order to make a fence around the Torah,” and states that if their prohibition spread throughout all Israel, then even a court greater in wisdom and number cannot annul them. He presents the difficulty that the overwhelming majority of rabbinic prohibitions are fences around the Torah, and therefore the clause seems to nearly empty law 2 of content. He explains that Maimonides creates a separate category of rabbinic laws that are fences, and that specifically in them the condition that the prohibition spread prevents annulment altogether.

Temporary emergency ruling, temporary uprooting, and suspension as a practical mechanism

The speaker reads Maimonides, Laws of Rebels, chapter 2, law 4, which allows a court to uproot something temporarily even if it is smaller than the earlier courts, and presents Maimonides’ a fortiori argument that since one may temporarily uproot Torah-level law, one may certainly temporarily uproot rabbinic law. He explains that the a fortiori argument makes sense only if one understands that the stringency in laws 2–3 stems from acting against the authority of an earlier court, whereas temporary suspension is not a permanent annulment but a pause that does not undermine the authority of the earlier authorities. He reads the continuation of the law, which compares this to a doctor who amputates a limb in order to save the body, and to the statement “Desecrate one Sabbath for him so that he may keep many Sabbaths,” and presents the context as action for the sake of strengthening religion, bringing many back, or saving many from other failures. He emphasizes an innovation according to which suspension requires renewed examination in every generation and is not a “change to the Shulchan Arukh” but a temporary suspension from which one can theoretically return.

Administering blows and punishments outside strict law, disciplinary flogging, and the authority of courts nowadays

The speaker argues that Maimonides ties suspension to the authority of a court that “administers blows and punishments not according to strict law,” and concludes from this that this route is not unique to the Great Court. He brings proof from Shulchan Arukh, Choshen Mishpat 2, where this authority appears within the laws that apply nowadays, and gives examples such as the Rosh and the Rif, who cut off the nose of an adulterous woman, and Rabbenu Tam, who imposed corporal punishments when there was a recognized central court. He explains that punishment according to strict law requires a framework of ordained judges and the Great Court, whereas punishment outside strict law does not depend on that but on public recognition of authority. He argues that this opens a halakhic tool that can be used today as well to bypass the problem of authority when people have become convinced that the change itself is proper, by means of “suspension” rather than permanent annulment, similar to the way the “ban of Rabbenu Gershom” is described as a structure of “temporary emergency ruling,” even if in practice it remains in force for a very long time.

Okay, we spoke about changes in Jewish law, and I suggested that parable, or that example, of walking around in a bathing suit. And in the end I finished with the Meiri’s application regarding the attitude toward gentiles. We saw that the Meiri there proposes an argument of the type I called midrashic conservatism, and we talked about the fact that when someone proposes a midrash that grounds a change in Jewish law, he doesn’t necessarily even need to prove it or bring textual evidence for it, because a midrash of that sort has built-in advantages over unreasoned conservatism, conservatism based simply on the claim that we must not change anything. So that’s on the basic level. Right. So now I want to move on to questions of authority. Because the moment we talk about changes in Jewish law, really—and I mentioned this in previous sessions too—it immediately raises the question: wait, where does all this end? Some kind of slippery slope. Right? Slippery slope problems. In the end you can dismantle all the Jewish laws we have, and nothing will remain; you can always propose some kind of midrash. So I addressed that partly and said that it’s not true, because formally, yes, you can always raise some argument that would justify a change, but we’re talking about common sense. Meaning, this is not a formalistic issue. And not every argument really holds water. Someone who wants to be a sinner can always be a sinner without any midrash—he can just commit a transgression, that’s all. But if someone proposes a midrash, that means he’s actually claiming that he’s acting properly, and that midrash has to hold water. But beyond that, the question of authority really comes up here. Because up to this point I ignored it completely. I basically said: think about the bathing suit example, right? I asked, okay, what will the person who proposes change say, what will the person who doesn’t propose change say—and it basically implies that anyone who raises this kind of argument can propose a change. There are no questions of authority here; you don’t need a Sanhedrin or a religious court or a Torah scholar or a halakhic decisor or whoever it may be. Seemingly it’s handed over to each and every person. The question is whether that’s really so. Because we know that at least in practice, when a discussion arises about changing Jewish law, two kinds of arguments often come up: first, the slippery slope argument; second, authority arguments. Who is the body today that is supposed to make such a decision? Okay? And those questions—the slippery slope issue I dealt with last time. The authority issue is what I want to deal with here. But I want to make a point, one I also made last time: even if I accept that in the end the proposal for change has to be rejected because we don’t have the authority, or because of the slippery slope, or whatever it may be, we still need to be honest and understand that it fell because of that. Meaning, the principled argument is indeed valid, maybe even true—not just valid. Then you tell me, okay, we don’t have authority to do it. Fine, that’s an argument, we should hear it. But that’s not the same as saying: this doesn’t even get off the ground because there’s an authority problem. No—it does get off the ground, but there’s an authority problem. Why is this important, aside from the fact that it’s true? Why is it important? It’s important because first of all, we avoid holding the discussion at all. Out of fear of slippery slopes and authority, we’re not willing even to enter the substantive discussion, the conservative midrash. Second, as we’ll see later, there are various mechanisms that can bypass authority problems, even if they do exist. And if we don’t discuss the proposal for change in itself, then of course we also won’t look for bypass mechanisms, we won’t look for the mechanisms that get around the authority problem. If we understand that this proposal is a correct one—and we discussed this—not only correct, but more reasonable, and that there is a price to be paid by someone who doesn’t adopt it, then clearly we’ll have strong motivation to ask whether nevertheless we can do it. Maybe the authority problem isn’t so difficult; maybe there’s a way around it, a way to solve it. If we don’t enter the discussion at all as to whether this change is a proper and necessary one, and so on, then of course we also won’t look for ways around it. Rather: okay, then no, so no, we just won’t discuss it at all. Therefore it seems to me very important to do this. To break it down into stages—and that’s why I did it this way here. First I spoke about the issues in themselves. Let’s see what we do with a conservative midrash in itself—how do we relate to it? Now I want to address the question: okay, what about the authority problem? And it’s very important to distinguish between these two discussions. The first thing I want to say about the question of authority is something I also spoke about briefly last semester, and that is the distinction between two kinds of authority. There is substantive authority and formal authority. Formal authority is authority vested in a person or institution by virtue of what it is. A good example is the Knesset. The Knesset passed a law. Why, as a citizen of the state, am I supposed to obey that law? Not because the Knesset is always right, not because it is made up of great sages who never make mistakes, but simply because it’s the Knesset. It has authority by virtue of being the legislative institution, the deciding institution. That’s why I call it formal authority. That authority doesn’t come from the fact that it is right; it doesn’t come from the content of what it says. It comes from the very fact that this institution is an authoritative institution. Okay? Say, with the Holy One, blessed be He, one could discuss: why do I need to obey Him? Do I need to obey Him because He knows best and is always right? Or do I need to obey Him because He is the Holy One, blessed be He? Because God is a different kind of case—He’s both this and that. Wait, so let’s see. I’m asking, doesn’t He have both? No, it’s both. I didn’t say what yes. So I’m asking: is that substantive authority or formal authority? There’s room to discuss it. One could say that we need to listen to God because He knows best what is right and good for us, what is good for the world, whatever it may be. And one could say: forget that—even aside from the question of whether He knows best, and He probably does know best—but not only because of that. Rather, by virtue of the fact that He is God, that He created us, He has authority to command us whatever He decides, and we are supposed to obey. That is a mechanism of formal authority. The first is substantive authority. The example of substantive authority is a doctor. I’m sick, I go to the doctor, and he prescribes me medicine. Why should I obey him? Do I actually have to obey the doctor? No. There is no obligation to obey the doctor. He himself doesn’t obligate. What does it mean, obligate? Nobody obligates—he can’t obligate you. He has no authority to determine that I must take the medicine. If I want, I’ll take it; if I don’t want, I won’t. But what happens is that common sense says that if he understands this and I don’t, then it’s worth listening to him because he knows better than I do. That’s what I call substantive authority. Substantive authority is the authority of an expert, like a doctor or an expert in some other field, it doesn’t matter. It’s authority that comes from the fact that he simply knows better because he is probably right. That is why I will in fact listen to him. But again, the concept of authority in this context isn’t really authority in the usual sense. You don’t have to obey him; common sense says it’s worthwhile to obey him. If I want, I’ll obey. No one will sue me for not obeying him. I’ll just bear the consequences, because I’ll probably suffer if I don’t obey him. Okay? So I call that substantive authority, but it’s not really authority. Formal authority is what is usually called authority, and—and this is an important point—it has nothing to do with whether the authority figure is right or not. The authority is vested in him by virtue of what he is. Okay? Now regarding the Holy One, blessed be He, at least in conventional conceptions—and of course everyone has to decide for himself how he sees this—in conventional conceptions, the Holy One, blessed be He, has both kinds of authority. He both knows better than everyone else, knows best what is right, and second, He created us, so we are supposed to obey Him. Maybe one could read the verse this way: “Do you thus repay the Lord, O vile and unwise people? Is He not your Father, your Master? He made you and established you.” Why must one obey the Holy One, blessed be He? Because “He made you”—“He is your Father, your Master; He made you and established you.” What does that mean? He sustains me, and second, He made me. What does it mean that He made me? So what if He made me? If He made me, then He has formal authority. What He says, I need to do. At least there’s such an assumption. Okay? So the claim is that there are two tracks here, and every time we talk about authority we need to know very well which of these two kinds of authority we’re talking about. For example, when the Torah says, “Do not turn aside from all that they instruct you,” authority which according to the overwhelming majority of opinions is vested only in the Sanhedrin. The Sefer HaChinukh writes that it applies to the sages of all generations as well, but that is an unusual and solitary opinion. They—the Sanhedrin—are the Knesset; they are the legislative institution, and what they say is binding not because they are right but because they are the Sanhedrin. Meaning, simply, that when the Torah speaks about authority, the authority of “do not turn aside” or “according to all that they instruct you,” that is formal authority. Not substantive authority. Whether the Sanhedrin also knows best or not is a good question; one can debate it. There could be a great sage outside the Sanhedrin who knows better than they do. The Talmud says Rabbi Akiva was the son of converts; he was never on the Sanhedrin, but he was the greatest Torah scholar. The Talmud says that he went abroad and intercalated the year outside the Land of Israel because there was none like him left in the Land of Israel. Rabbi Akiva was the greatest Torah scholar. So when he had to obey the Sanhedrin, was that because they knew best? No, he knew better than they did. And he had to obey the Sanhedrin because they were the Sanhedrin. Okay? So simply put, when the Torah speaks about authority—“do not turn aside,” or “according to all that they instruct you”—it is speaking about formal authority, not substantive authority. And that is the authority of the Sanhedrin.

Rabbi, a question: I basically see two kinds of formal authority—formal authority that is divine, and ordinary formal authority. In the sense that with something like the Knesset in the State of Israel, in the end the power given to it was given by the people who elected it and empowered it to be the legislature. But if, say, they are wrong—suppose they now issue a manifestly illegal order—then I’d say a person’s obligation is to violate the law, not to listen to their authority, and to do the right thing if they are wrong. Because they have no authority for that. It’s like if the Israeli legislature came and ordered an American citizen to do something. It’s formal authority, but not over him. And even over me, its authority is limited to a certain domain—the domain of lawful orders. It can’t give me just any order. By the way, the Knesset can’t issue a manifestly illegal order because there’s no such thing—once it legislates it, then it is a lawful order. But a military commander cannot issue a manifestly illegal order because his authority derives from the Knesset. The big question—and in the Nuremberg trials and all these things—is what happens when the Knesset gives orders that contradict basic morality. By Knesset I mean parliament, say—the Nazi German regime, okay? That’s an interesting question because supposedly what? What basic morality? The basic morality of the universe, of humanity as such. There’s no such one basic universe. Okay, that was the question at Nuremberg, and the judges there thought there is such a thing. I also think there is, but okay. It wasn’t proven. You can’t prove any such thing; can you prove that there isn’t? It’s not a question you can prove one way or the other. It’s a question of what you think. I think it arises from the nature of each and every nation. “You shall not murder” comes from its nature, the nature of every nation? German nature was to murder, so it was permitted for them to murder? What? Okay, so according to the cultural conception that the leader drove there, the nature that formed among them, murder was indeed… No, you’re giving me facts, and with the facts I can agree. But you are establishing a normative basis which says that because they thought it was permitted, therefore it was really permitted for them. No, I agree that they thought it was permitted. I do not agree that because they think so, it is therefore really permitted for them. That is a normative claim, not a factual one. On the facts I agree with you, but not on the norms. You are assuming here that if he thinks it’s permitted, then apparently it really is permitted for him. No, he thinks it’s permitted. A murderer here in Israel can also think he is allowed to murder, and I will still judge him. But that murderer is subject to sovereignty here; they were not subject. And who says he is subject? He thinks he’s not subject. What are you imposing on him? In practical reality he is subject. What does “in practical reality” mean? I’m talking about norms, not practical reality. This is not a discussion about facts. The question is whether he ought to be subject, not whether he is subject. Whether he is subject is a question in psychology. The question is whether he ought to be subject. How will you determine that for him? He says he is not subject—what can you determine for him? He says he is not subject, but there’s police and law and an army, and they’ll deal with him. By force! No problem, so we’ll also deal with the Nazis by force. We’re not talking about the question of force; we’re talking about the normative question. And on the normative question, if you say that whatever anyone feels is what is really permitted and forbidden for him, then you’re a moral relativist. I don’t agree with you, but that’s not the discussion. Here it’s each nation—not each individual, but each group of people that has independent sovereignty. Where did you get that distinction from? Where did you get that distinction from? Nature. What nature? What nature? You turned norms into facts; that’s the naturalistic fallacy. No, you can’t turn norms into facts. What is this “nature”? I think I’m not subject. The State of Israel—by what power do you come to me with a claim? What is “nature”? Nature? I don’t care about nature. What is nature? You have to come to me with a claim because you think I really am obligated. Okay, you think I’m obligated, I think I’m not. So what? If you recognize what I think as binding for me, then what’s the difference between an individual and a nation? There’s no difference at all. If you say, no, just because you think something, maybe you’re mistaken—then so what if you think something? I think you’re mistaken, and therefore I will judge you despite the fact that you think that way. That’s a non-relativist conception, and that’s how they judged at Nuremberg. That was exactly the discussion. They said: we were following orders. We were following orders, supposedly. At that time there wasn’t such a conception of some global order that determines what is… Here we already have a factual dispute. Every sovereign state that conducts itself… Here we already have a factual dispute, not a normative one. But they acted according to the Westphalian order. In the international conception of that time, every sovereign state governs itself and acts however it wants and no one from outside… Again, here we are arguing over facts, not norms. Factually, you are mistaken. At the Nuremberg trials they judged them for that. But only because they gained power over them and subjugated them… No, no, the judgment is not a matter of force. The judgment is first of all the question of whether you are right. The use of force is carried out in order to implement a principle that I also think is just. I don’t use force arbitrarily. There were justifications there. Read the reasoning of the verdict. Otherwise you don’t need reasons for a verdict—just shoot them in the head. Why hold a trial? Shoot them in the head and that’s that. You hold a trial in order to determine whether they are right or not right. Suppose the Nazis had won and had executed all the… say, all of society, all the communists, and they argued that these communists suppressed primitive forces, the force of the nation, and so on and so on. So what? Does that mean there’s no justice there either? Of course. I didn’t understand. Are you trying to present this as a difficulty? Yes. They are mistaken. What? So this whole matter is simply about who wins? Like any murderer. Any murderer can say: I killed him because I didn’t like him, he looked wrong to me. So does that turn him into… No, no, not in practice who wins. That’s the force-based Darwinist issue. The moral issue is not who wins, but who is right. No, that’s exactly the point. And again, you can disagree. That’s it. You’re a Darwinist; I’m not a Darwinist. I think there are concepts of justice, and that is the basis on which I judge and also exercise force. But the use of force requires justification. The justification is that I am right. I don’t judge a person just because I have the power. Okay, if we place this in the sphere of relations between states, no one asks what is… no one, we’re not talking about morality. Very simply, a state that wanted to obtain oil invaded Alaska. That’s not true—we definitely do talk about morality. You’re mistaken. We definitely talk about morality. Everyone talks about morality. Even those who do not behave morally make the effort to justify themselves, even fictitiously, in moral terms. Even Putin now, with Ukraine, explains that they are Nazis. Why does he need to explain that they are Nazis? I want to beat them because I have the power, that’s all. What’s the problem? I want to shoot everyone in the head, conquer Ukraine, that’s it. Because human beings are uncomfortable living in a world where I’m just purely a conqueror. They’re uncomfortable. What you call discomfort means that he too is speaking in terms of justification. Meaning, he does not use force merely because he has force. Now, you don’t accept his justifications, and neither do I. But the fact that we speak in terms of justifications means that force in itself is not a justification. You have to explain why this use of force is justified. No, explanations—they’re just giving excuses. Not excuses—explanations. The first word has a certain connotation. I’m not saying excuses; I’m talking about explanations. “Excuses” already sounds like I’m inventing something for you that I don’t really mean. No, no, we’re talking about explanations. Tell me, weren’t there claims that Saddam Hussein had nuclear weapons, weapons of mass destruction and so on, just in order to… But they invented that so America could have oil. No, no, wait a second. First of all, you’ve decided that they invented it. I don’t think you’re right. They weren’t found—so what? Does that mean they invented it? It means they were wrong. That’s not the same thing. That’s exactly the point. You assume Darwinism and read all historical events through Darwinian glasses. Meaning, you’re basically saying, ah, if they didn’t find any, that means they really invented the whole thing. Not true—they simply erred in interpretation. They thought there was a reactor there and they were wrong. That’s all. And now, the fact that they were wrong—fine—that really means their act may retrospectively have been unjustified. No problem. But that doesn’t mean they acted without any justification. A person can be mistaken. I don’t know, I don’t have information—this is just my impression there, by the way. But even if not, it changes nothing; then they acted wrongly. If they invented it, then they were wrong. The point is that they invented it. In the end they were wrong. The very fact that they made the effort to invent it also means they operate in terms of justification, even inwardly, by the way. Their own citizens also won’t accept a war that isn’t justified, not only outsiders. We really do speak in a world of justifications. Yes, and that society is sufficiently prosperous for the Americans, so the American citizens simply—a large part of them, I haven’t done a poll—a large part of them also won’t accept a war that brings them profit if it isn’t just, unlike perhaps in other countries, some of the other countries.

Anyway, to our matter. Rabbi, just a small refinement regarding divine formal authority as opposed to ordinary authority. Is the difference the domains in which the authority applies? We spoke about the Knesset issuing an unlawful order. First, the domains; and second, the absoluteness. Absoluteness. Meaning, you can say: look, my parents also have formal authority over me because they gave birth to me. And it says, “Every man shall fear his mother and his father, and keep My Sabbaths.” Meaning, if my parents tell me to commit a transgression, then I do not have to listen to them, because I have to obey the Holy One, blessed be He, before them. That does not mean their authority is not formal. It is formal. But that doesn’t mean it’s absolute. There can be a higher formal authority that overrides it. Why do I call it formal authority? I call it formal authority because my parents’ authority doesn’t stem from the fact that they are right; it stems from the fact that I need to listen to them because they are my parents. In that sense it is formal. But that doesn’t mean that this authority is absolute, that nothing can override it. Some things can override it. Yes, Rabbi, but the point is that formal authority—let’s say aside from the Holy One, blessed be He, or say the Sanhedrin because that follows from it—ordinary formal authority is ultimately something that a human being grants to someone. You grant someone that authority, and then from that… I granted my parents authority over me? You can choose not to listen to them. You can choose not to listen to the Holy One, blessed be He, too. That doesn’t matter. True, but unlike, say, your parents or the Knesset, there are times when it’s legitimate not to listen to them. Again, so you’re returning to the previous discussion. You’re mixing two things. That’s what I said earlier. Why is it sometimes legitimate not to listen to them? Because it’s not absolute. But the authority in essence, its character, is formal authority, not substantive authority. But that’s not always absolute. Even formal authority—there is a magistrate’s court, a district court, and a supreme court. All of them have formal authority, but the supreme court overrides the magistrate’s court. Or the Holy One, blessed be He, overrides one’s parents, or the Holy One, blessed be He, overrides the state. All of those are formal authorities. Saying that authority is formal only means: does it stem from your being right, from truth being on your side, or from the very fact of who you are? It still says nothing about whether your authority is absolute, whether under no circumstances can I refuse to obey you. If there is another formal authority, or if you go beyond the domain in which your authority is defined, then I won’t obey you even though your authority is formal. Two different things. Rabbi, wouldn’t you say that divine formal authority is different in quality, not only in quantity? Those are words. I don’t know—define it however you like, quality and quantity. But what difference does it make? Because this absoluteness—we’re starting from the assumption that the Holy One, blessed be He, really… No, there is no absoluteness. Even the Holy One, blessed be He, I won’t listen to in everything. What does that mean, not in everything? There are things I won’t listen to Him about. If the Holy One, blessed be He, came and commanded you… Yes, told me now to stop breathing. No. What do you mean, no? Wasn’t I clear? What? But you’re commanded to… I’m commanded, okay. No, I mean, we spoke about this… The Knesset can also command me all kinds of things. If a person who doesn’t understand divinity, and from that, the need to come and do what divinity says… I understand divinity and I understand the need to do what it says, and I also understand that I want to breathe. That’s it—I understand that too. So then what would you say about self-sacrifice? Self-sacrifice is something else. There are certain situations in which some value stands in the balance that overrides the value of my life, fine—but a random arbitrary command, don’t breathe—that’s not, that’s something else. By the way, someone might come and say, true, even in self-sacrifice I wouldn’t listen. Everyone draws his line where he draws it. But here, let’s say, the Rabbi starts from the assumption that there is some very, very important value for which it is worth sacrificing one’s life, and therefore I would be willing to sacrifice my life. But I think that when God commands you something, then you’re automatically saying that what is on the scales is the absolute value, meaning… No, then you’ve returned to the question of authority and turned authority into substantive authority. You’re basically saying: ah, after all He is right, and therefore one must sacrifice one’s life. I’m not talking about that. There is also substantive authority. I’m talking about the boundaries of formal authority. But I think that’s also what characterizes divinity, that you say He is also right. Certainly, correct. I said that earlier too. I’m speaking about the aspect of formal authority. Leave aside substantive authority for the moment. The aspect of formal authority is to obey Him by virtue of the fact that He commanded, by virtue of the fact that He is someone. Besides that, there is also the consideration that whatever He says is probably also right. That is a different discussion, another channel. That is substantive authority. Okay? But one must distinguish between these two things. There are two different things here. I’ll maybe give you an example to sharpen it further. Look. When we talk about the authority of the Talmud, for example—the authority of the Talmud, yes, it is accepted in Jewish law that the Talmud is a binding framework. One does not dispute the Talmud. Okay? What is that authority? Simply put, it is formal authority. The Talmud? Yes. Formal authority? Yes. I do not dispute what is written in the Talmud. That’s the law. Yes, like the Knesset. Okay? “Do not turn aside” does not apply here, because “do not turn aside” was said about the Sanhedrin. So the big question is: where does the authority of the Talmud come from? The claim is that the authority of the Talmud comes, like the authority of the Knesset, from the fact that we accepted it upon ourselves. That is what the Kesef Mishneh writes in chapter 2 of the laws of Rebels and others: because we accepted it upon ourselves. That is the authority of the Talmud. Without that, it would have had no authority. The Talmud is not the Sanhedrin. And the authority comes from below, not from above. But it is still formal authority. Formal authority because we accepted upon ourselves to fulfill what they say, not because they are right but because they are the law. Okay? Why am I saying this? Because when people explain to us today why one should listen to the Talmud or not dispute the Talmud, they explain that they were all heavenly seraphs and ministering angels and had divine inspiration and revived the dead and I don’t know, all kinds of nonsense like that. No—that has nothing to do with it. Those are explanations for children. We need to obey them because they are the Knesset, because that is the law. That’s all. Even if they were mistaken, and they were human beings like you and me, and to the best of my understanding they did not revive the dead—none of them revived the dead. And the stories that appear there about reviving the dead are metaphors, aggadot of one sort or another, and that has nothing to do with the issue. Small children don’t understand why they need to obey someone unless you explain that he never makes mistakes and is such a great genius that he knows everything and is always right. But adults can understand that one has to obey the Talmud not because they were all prophets, but because that is the law; we accepted it upon ourselves, just as we accepted the Knesset. That’s all. Rabbi, if authority comes from below, then it’s reasoned? Of course, why not? On the contrary, only formal authority needs to be grounded. From which side? From the side that empowers others to be formal authority. But I think that’s also what characterizes… True, formal authority generally comes from above—from the people who empower other people to be formal authority. I said, in some cases it’s empowerment by others. With the Holy One, blessed be He, it probably has nothing to do with authorization that we give Him. The Knesset, the Talmud—that is us empowering them. “Do not turn aside” is also not something we empowered. That comes from the Holy One, blessed be He. There is formal authority that comes from below, and formal authority that comes from above. What is a local halakhic authority? A local halakhic authority has authority over the members of his community. That has nothing to do with “do not turn aside.” But that is formal authority. One should listen to him not because he is right; one should listen to him because he is the local halakhic authority—in the areas entrusted to the local halakhic authority. Not every single thing he says must be obeyed. But in areas like how to run the synagogue, how to run the community, then he is the one responsible for that matter. Why? Where does that authority come from? From the fact that we gave him that authority. Imagine, for example, that a community decides that the local halakhic authority will decide only regarding the Ashkenazi synagogue and not the Sephardi synagogue in that place. Then his authority will be only over the Ashkenazi synagogue, because that is what authority he received. If they don’t give him that authority and tell him, you will determine everything that happens here, then he will determine everything that happens there. Once it comes from below, there is no point discussing the boundaries of the authority. What we gave him—that is his authority. When authority comes from above, then I can ask, wait, how far does it extend, what is its basis, what is its scope. But when authority comes from below, then what was given is the authority that exists. Rabbi, and if authority comes from above, then it punishes? What do you mean? The mouth that prohibited is the mouth that permitted; the mouth that prohibited is the mouth that punishes. The Holy One, blessed be He, gave authority to the Sanhedrin, gave us Torah, and then also said: punish those who transgress this. That is the authority.

Rabbi, I have a question about viewing the Talmud itself as formal authority. In my own reasoning, I say that the reason we accepted the Talmud as formal authority—all or most of the Jewish people, I don’t know—is because we say: we have the Torah and the Oral Torah, everything included, but how do we fulfill this in practice, how do we do the will of God? Those people in the Talmud or the Mishnah are presumably the ones who know how to do that best, and therefore we listen to them, because otherwise, really, what reason do I have to listen to them? Just because I’ll read someone who understands? I’ll answer you in two parts. First, you’re right. Meaning, formal authority can begin from substantive authority. For example, when you appoint a person as a judge, you don’t take someone off the street and make him a judge; you take a jurist. Why? Because you also want someone who will be right, someone who understands the material—not just someone who, okay, he’s the judge so you need to listen to him. So of course, when you grant formal authority to someone, there is probably also some substantive justification for it. Usually, in many cases—I don’t know if usually—okay? A judge is like that. A district psychiatrist. What is the difference between an ordinary private psychiatrist and a district psychiatrist? A private psychiatrist—no one has to listen to him. You want to go to him for treatment, he’ll prescribe medicine, prescribe a treatment plan; do what you want. Listen to him or don’t—it’s your decision. A district psychiatrist can hospitalize you involuntarily. Why? Because he received formal authority. Not because he is smarter than the private psychiatrist, but because he received authority to do that. Authority is needed in order to do that; it’s not enough just to be right. And on the other hand, he is a psychiatrist—you don’t give that authority to just anyone. Meaning, there is often formal authority that begins with your having substantive authority—you understand the matter—so there is logic in also giving you formal authority in that area. But still, after we have given you formal authority, there is something about you that goes beyond expertise. Because the private psychiatrist has expertise just like the district psychiatrist, and a legal scholar at the university has expertise just like a judge—maybe even more. Doesn’t matter. But he does not have the authority. He has the expertise, he does not have the authority. Meaning, it is obvious that very often if we are going to vest authority, we accept upon ourselves a local halakhic authority. In principle we could even accept upon ourselves a cattle herder as local halakhic authority. The Talmud says that, right? “My father is acceptable to me; your father is acceptable to me; three cattle herders are acceptable to me.” We can accept them as judges, as witnesses, as everything. Usually, when you appoint permanent judges—not someone specific for one case you’re having with someone else—then you’ll take someone who is an expert in the halakhic world. So you take someone who has substantive authority and give him formal authority. But that doesn’t mean his authority is substantive. After he received formal authority, now that is his authority. It somewhat reminds me of what they bring in analytic philosophy—maybe I mentioned this once. There’s the city Dartmouth. Dartmouth. In England. The city Dartmouth was a city that sat by the mouth of the river Dart. Dartmouth. Yes, it was at the mouth of the River Dart. And at some point they diverted the river. Its course changed. It no longer passes by Dartmouth. The name Dartmouth remained Dartmouth. Why? It is no longer the mouth of the River Dart. So Dartmouth ceased being a description, but it remained a name. Now, that name began as a description. At first, why was it given that name? Because the river passed there. The river mouth was there. But once the description is no longer correct, that does not mean the name is also cancelled. The description was only the motivation for why we gave it the name; now the name has existence in its own right, even if it no longer serves as a good description. Okay? It’s the same thing here. When we say we appoint great Torah scholars to the Sanhedrin, we want people who are experts, who have substantive authority, and therefore we now give them formal authority. Okay? After we have given them formal authority, their authority is no longer substantive authority. Theoretically, even if now they were to forget the Torah they knew, they would still have authority. Because they are the Sanhedrin. It is true that when they were appointed, they were appointed because they were Torah scholars—you don’t just put random people there. But authority in the end does not necessarily reflect the motivation on the basis of which it began. Meaning, it began because of expertise, but as a result we chose to give them formal authority. Now it is formal authority. Now it no longer matters, in principle, whether they have substantive authority or not. Okay? So those are the two kinds of authority.

You asked earlier about the Talmud, whether that’s what we accepted. I think not. Why, I don’t know, but evidently we didn’t. Why the Babylonian Talmud yes and the Jerusalem Talmud no? Because that’s what we accepted. You’re asking only factually: is it true that the Shulchan Arukh we did not accept? Not why, but factually—did we really not accept the Shulchan Arukh? I think not. Because commentators on the Shulchan Arukh dispute it, and there are things we rule against it, right? It happens—not a lot, but it happens. Therefore I don’t think it’s correct to relate to the Shulchan Arukh like to the Talmud. But on the principled level, if all the Jewish people had accepted the Shulchan Arukh as they accepted the Talmud, then it would be the same thing. It didn’t stop in the fifth, sixth, seventh centuries. This is true in every age. Okay? In any case, that is the basic distinction between substantive authority and formal authority.

Rabbi, I have a question, before we move on. So if the Holy One, blessed be He, were to tell you not to breathe, or for that matter, “Take your son, your only one, whom you love, and offer him up to Me as a burnt offering”—I’m just throwing something out here—then on what basis would you listen to Him? On the basis of formal authority or substantive authority? Who said I would listen to Him? I don’t know, maybe you also wouldn’t listen. Correct. If He told you, “Offer him there as a burnt offering on one of the mountains that I will tell you,” I don’t know. The point is this: I don’t know how to answer that. Why? It’s like the criticisms of Abraham our father regarding the Binding. There are several commentators who criticize him for it, and some even claim that he failed the test of the Binding, that he should have refused. The Holy One, blessed be He, was testing whether he would refuse or not. That’s among the nonsense—it doesn’t fit the Torah itself, it’s very strange. But what is the mistake in that interpretation? The mistake in that interpretation is that as long as you haven’t experienced—after all, what was the claim against Abraham? How do you know, maybe some demon is deceiving you, right? Like Descartes. How do you know it’s really the Holy One, blessed be He? After all, what the Holy One, blessed be He, told you makes no sense. It makes no logical sense, because He said, “Through Isaac shall your seed be called,” and now He tells you to kill Isaac. So that is a logical contradiction. How can that be? And it makes no moral sense. How can it be that the Holy One, blessed be He, commands me to kill Isaac? Therefore I have every reason to suspect that perhaps it isn’t the Holy One, blessed be He, speaking to me at all, but something else—I don’t know—a psychosis, I don’t know what happened, possession, who knows? So many times Kierkegaard in Fear and Trembling really discusses this point. Why was Abraham our father so certain that it really was the Holy One, blessed be He, saying it to him? And Kierkegaard says he wasn’t certain, but it’s some kind of, I don’t know, living in paradox, something along those lines. He doesn’t explain it. What? No, on the contrary—he claims that religious commitment, religious life, is expressed in living in paradox. If it’s rational then it’s not religious, as it were. Correct. Very Christian, but for some reason people in Israel have really loved it in recent generations too—Hasidim and all sorts of others. Anyway, what is the mistake here? The mistake is this: I have never in my life experienced divine revelation. I have not experienced it; unfortunately I am not a prophet. I have no idea what it is like when the Holy One, blessed be He, reveals Himself to you and says something to you. When I look at this from the outside—I’ve never experienced it—I say, wait, maybe Abraham our father—how did Abraham our father know at all that it was the Holy One, blessed be He? Maybe it was something else. But it could be that if I were to experience it myself, I would understand that there is no possibility it is something else—you know that it is the Holy One, blessed be He, speaking. Someone who never experienced it doesn’t know; for him there is always the possibility that maybe it’s this, maybe that. It’s like a parable I once heard from the Lubavitcher Rebbe’s repeater. He was in Yerucham—Yitzchak Kahn? The repeater? Yes, the Rebbe’s repeater. He has since passed away. He would repeat the lessons after the Sabbath. Because on the Sabbath one doesn’t write, so after the Sabbath he would repeat the lessons. So he was staying with us in the yeshiva in Yerucham. He spoke there and gave a parable about two people, one blind and one sighted. They enter a room and see that the room is crammed with furniture. Full of furniture—tables, chairs, a whole pile of furniture. Fine? Now the room has no windows, no other entrances, no doors—nobody is inside the room. There is only one door through which they entered. And that’s it; they saw the room full of furniture. They go outside, lock the door, and sit by the door on two chairs. After an hour, the sighted one goes in. The sighted one opens the door, goes inside, and says, Yankel, you won’t believe it, he says to his blind friend. There isn’t a single piece of furniture in this room. Empty. Now Yankel says to him: listen, are you crazy? We were sitting by the door. There is no other entrance to the room. We were sitting by the door—nobody came in, nobody went out, no furniture was removed, nothing. There was furniture there before. If nothing came out, that means the room is still full of furniture. Which is what had to be proved. There is a logical proof here. So Berel—the one who went inside—says to him, okay, I understand, but there is no furniture in the room. I see it. So the blind man says to him, then your sight is deceiving you. You probably don’t see well. Now what should the sighted man, the one who sees, do? Seemingly he has a logical proof, right? A logical proof that there is a lot of furniture in the room. So apparently his eyes really are deceiving him. What do you think his conclusion will be? That there’s no furniture. So how did this happen? Further analysis is needed, I don’t know how it happened. But I see that there isn’t. But say the blind man was blind from birth. He doesn’t know what it means to see. And he’s right when he says, wait, but maybe your eyes are deceiving you. Maybe it isn’t true. After all there are errors, mirages, all sorts of things can happen, right? Yes, they can. Meaning, if you don’t really understand what seeing is, if you haven’t really experienced the concept of seeing things, then from your perspective maybe this, maybe that. But someone who has experienced it—there’s no this or that. If I don’t see it, that means it isn’t there. The same with Abraham our father. It could be—that’s my guess—that if the Holy One, blessed be He, reveals Himself to you as to a prophet, you know that it is He speaking to you. I, who have never experienced it, am blind with respect to that phenomenon. I say, you know, maybe some voices inside you are deceiving you, I don’t know, all kinds of things of that sort. Maybe yes, maybe no. There are logical contradictions here—exactly as with the room. I have a logical contradiction; it can’t be that the Holy One, blessed be He, told you this. A logical contradiction, a moral contradiction—it cannot be. Fine. But I’m telling you, He told me. How did that happen? Further analysis is needed. I don’t know. But He told me. Okay? Very often we criticize these situations without ever really having experienced them ourselves. And it’s a big mistake to do that. As the saying goes, “Do not judge your fellow until you have reached his place,” but in a much deeper sense. When you haven’t reached his place, you don’t understand the situation at all. That’s why I think that today too there are plenty of prophets in Abarbanel Hospital. What? He says today Abarbanel is full of prophets. Okay. On the one hand, you know, maybe there is even a real prophet there and we have put him there, because we really don’t accept these things; so from our point of view anyone who says he is a prophet belongs in Abarbanel. He has to get to Abarbanel. I don’t know—if some Isaiah showed up today and were a prophet and so on, they’d put him in Abarbanel too. Right. Meaning, that’s why I say it depends very much on the angle from which you look at things. Very often we impose our own a priori assumptions on reality and interpret it in light of our assumptions. In fact, just today I posted a column to my website exactly about these things—what is called self-echoing. A person interprets a situation in light of his assumptions, but not only does he interpret the situation that way, now that very situation also proves that his assumptions are correct. For example, someone sent me a WhatsApp message reporting that Orban is about to move the Hungarian embassy to Jerusalem. Now Orban is known as, well, not one of the righteous among the nations probably—or at least that is the accepted view. I’m not sure I believe it all that much, because the liberal press is a little suspect in my eyes when it describes regimes like that. But never mind, suppose he really is like that. Then they say, well, birds of a feather flock together—Bibi. So Orban and Bibi connect to one another. Now in short, even moving the embassy to Jerusalem—he did that out of self-interest. He has some dealings with Bibi, I don’t know exactly what. Okay? So I said to the person who sent me this: look, maybe you’re right and maybe not. But how do you know he did it out of self-interest? Because you assume he is evil, Orban. He doesn’t do things for good reasons, right? So once you assume he is evil, then you assume he did this act because he is evil, and then—there, you see, this proves he’s evil, look, he does evil acts. You understand that it’s circular. Even if you’re right, it’s circular. I’m not saying you’re wrong. I’m saying you can interpret it as him really having done it out of self-interest, no problem. But you cannot infer from that a conclusion that reinforces your view of him as evil. That you cannot do. Because your whole view of him as evil is what led to the interpretation of this act. Especially since this act in itself—even the writer agrees—is a good act. We think it’s a good and correct act. I told him more than that: the fact that he is presumed evil is what enables him to do acts like these. Because another person would get criticized by the press all over the world and so wouldn’t dare do it. Orban is in any case already beyond the pale in the entire world press. So what does he care? So now he can also do the right things, because in any case it makes no difference. He’ll get hit anyway, so it doesn’t matter. Sometimes precisely the person who is considered evil is the one who can do the right things. Fine, that just came to mind—that’s another discussion.

Ah, you asked—why wouldn’t I listen? Coming back to your question. So if the Holy One, blessed be He, were to tell me not to breathe— from my perspective today, I would not listen. But I don’t know—I’ve never experienced a revelation of the Holy One, blessed be He, telling me not to breathe. But from the understanding that the Holy One, blessed be He, is… what is called truly substantive authority. From the fact that He is the Holy One, blessed be He, and now comes and, from within the good and the universal, cosmic whole, everything altogether, tells you this is the correct act. So I’ll tell you one of two things. First, you are talking about substantive authority and not formal authority. You are basically saying: do it because He is right. No, first I asked whether it’s formal or substantive. So I answered regarding formal authority. Now you’re saying, okay, leave formal authority aside, but after all He is right. He says that this is the correct thing. That is already a substantive claim, not a formal one. Okay? That’s another discussion. It may be true, one has to examine it. Second, the same questions arise. Who says it’s the Holy One, blessed be He? If He really is so right and so on, then it’s not plausible that He is telling me to stop breathing. So I would ask myself: wait, is this really the Holy One, blessed be He? Maybe it’s just a delusion, maybe it’s… yes, all the questions for which I brought up Abraham our father. Okay? Now I don’t know. If I were to live through that situation and hear the Holy One, blessed be He, reveal Himself to me and tell me such-and-such, then it could be that I would indeed become convinced and maybe I would do it. I don’t know. Therefore, as long as I haven’t experienced the situation, I don’t know how to answer you definitively. Okay? So if you were convinced that yes, it is the Holy One, blessed be He? I don’t know. Then in principle I ought to do it. Whether I would be able to withstand it or not, I don’t know. That’s another discussion. But yes, if it is true then it is true. Okay, that’s almost a tautology. Obviously if I become convinced it’s true, then that is the right thing. The question is whether I would do it, whether I would hold up under it or not. I’m not sure. A bit like—I once thought about the Temple. Everyone prays that the Temple be rebuilt, that the service return, and so on. I don’t know—to me it’s a nightmare. The Temple will return, the priests will be wading ankle-deep in blood, all their hands full of blood from the animals slaughtered there—horrible. It’s the greatest horror imaginable. I’m only praying all the time that it won’t happen. What, you don’t really understand what the Temple is? Exactly. So I say: that doesn’t mean that when such a thing happens I won’t suddenly understand that there is something there that I don’t understand from my present point of view. Maybe when that exists, there is something in the air, or I don’t know exactly what, that suddenly makes people understand that this is the Divine Presence, that this has spiritual meaning, that it says something about and changes our world in some way. Maybe. From my point of view today, I’ve never experienced it. I don’t know. From my point of view today, I am only praying that it won’t happen. From the perspective I will have then, maybe yes. Therefore I don’t reject the value of these things. I also think that if it really is like that, then apparently it really should happen. So in any event, if it happens then it’s probably what should happen. But I’m just saying on the conceptual level—it’s again the same logic. Meaning, there are things about which from my point of view today I have a certain stance, but I need to put a warning note next to it: this is your point of view today. And when you live through the situation being discussed, which is very different from the situations you know, maybe you’ll see things differently, and then your judgment will be different. Okay? Fine. So Rabbi, pray for the return of the Divine Presence. Huh? Pray for the return of the Divine Presence in a way… Yes, independently of the Temple service. I’m talking about the service in the Temple. Yes, but if the Divine Presence returns, then… Fair enough, maybe. Yes. Fine. Anyway, yes, Rabbi Kook said it won’t return; Rabbi Kook also said it won’t return, that there won’t be animal sacrifices. Rabbi Kook said that? Yes, that there won’t be sacrifices from animals. Where did he say that? In A Vision of Vegetarianism and Peace. Fine, I’ve read… there’s some… it’s based on some rabbinic midrash, there’s one rabbinic midrash. And it really will be from plants, right? Yes, in the Third Temple. The question is whether that creates something else—whether once again there was a Divine Presence there and not just some psychotic attraction Jews had to hanging around a slaughterhouse, whether it creates some other kind of thing. I don’t know whether there was some exalted spiritual thing there or not, but animal sacrifice did exist. No, obviously there were sacrifices. So what’s the fantasy, I don’t understand? The question is why a person actually expects—or people think—that when the Temple comes there will be some kind of perfect spiritual world. I don’t know. I don’t think that. I don’t know. Either there will be or there won’t be. I don’t… if there won’t be, then I don’t see any value in it. If there will be, then I don’t know. Or maybe Maimonides’ opinion here deviates a bit from the aspiration? You think Maimonides also held that the essence will be cancelled? There are analyses. He doesn’t write such a thing, but with Maimonides there is always esotericism. With Maimonides there is always esotericism, so I don’t know. I don’t deal with the Guide of the Perplexed, so I don’t know. We have a passage from the Guide saying that it was a response to idolatry. That contradicts the end of the laws of misuse of sacred property, yes. Fine, I have no idea. And certainly no practical difference follows; Maimonides knew that no better than I do. I don’t think Maimonides knew more than I do regarding whether it will return or not return. I don’t know. Who can know? We’ll wait and see. Fine. But is it worthwhile to hope for it? No—whether it’s worthwhile to hope for it or not, I can also decide whether it’s worthwhile to hope for it or not. In that too Maimonides is not better than I am. On the question whether not? I think that for now, from my perspective today, it is not worthwhile. And again, I always take into account the possibility that maybe I don’t understand the situation.

Okay. So if I summarize now the issue of formal authority and substantive authority: formal authority was given from above—“do not turn aside”—therefore one ordained authority ordains others. There are no democratic elections for the Sanhedrin. The ordained were ordained from the Holy One, blessed be He: Moses, Joshua, and they ordained others. One ordained by another all the way back to Moses our teacher. And this ends at the end of the process of ordination: the Sanhedrin is gone, ordination is gone, everything is gone. From that point on there is the concept of acting as their agents, which is some rabbinic enactment or Torah-level principle—that is disputed. But in principle, ordination is over. There is no more formal authority, really, from the end of the Sanhedrin and the ordained sages onward. There is still, of course, substantive authority. What does that mean? There are great Torah scholars, and what they say is probably correct, and therefore one should listen to them—not because one must. There was a transition here that people don’t manage to understand, but it is a very strong, very sharp transition, from formal authority to substantive authority. That is the difference between the Sanhedrin and the Talmud on the one hand, and the medieval authorities and later authorities on the other. The medieval authorities and later authorities have no authority. No authority. What, because they lived a few hundred years before me, therefore they are authorized for something? Where is such a thing written? There is some assumption that they were great Torah scholars, and therefore they are probably right. Probably. But maybe not. And if I decide not, then I won’t listen to them. As for the Talmud or the Sanhedrin—even if I decide not, I still have to listen to them because that is formal authority. Like a doctor—think of a doctor. He prescribes me medicine. I got home, searched online, I don’t know, I’m not a doctor, and I concluded that here he is mistaken. So I won’t obey him, even though he understands this better than I do. In formal authority there is no room for such considerations; in substantive authority there is. Therefore the authority of the medieval authorities and the later authorities must be understood as not absolute. It exists in places where I assess that they are probably right. But if I am very, very convinced, and I have a very, very clear stance against them, then I will do what I think, not what they say.

Rabbi, a question regarding the Talmud. We treat the Talmud as formal authority by virtue of some understanding that they also had some kind of substantive standing. But today, does it follow from that that I accept the Talmud as it is and I cannot dispute it? And if I find something in the Talmud that is certainly incorrect—and there are such cases—say the example with lice? We’ll get there in a moment. We’ll get there; that’s the plan, later on. The Rosh, for example, writes—the Rosh in tractate Sanhedrin, chapter 4, section 6—he discusses the question of halakhic authority and says there that any sage after the Talmud has no authority; you can dispute him with proofs. He brings there four approaches among the medieval authorities: the Baal HaMaor, the Raavad, and one sage cited in the Baal HaMaor, I think—in other words, several medieval opinions. And these things entered the Shulchan Arukh, amazingly enough. The Shulchan Arukh, which for some people became formal authority, in section 25 of Choshen Mishpat brings this Rosh, who says that there is no formal authority after the Talmud. Fine, so that’s a little strange. In any event, why, why really? The claim is that you can dispute them with proofs. That’s exactly the point. The Talmud you cannot dispute with proofs. Why not? Couldn’t the Talmud have been mistaken? It could have been mistaken. But it has formal authority, so why should I care if it was mistaken? The authority of the medieval authorities is substantive, so if they were mistaken, then I won’t obey them. The Geonim from the perspective of the Rosh—or the medieval authorities from our perspective—it doesn’t matter, all later generations after the Talmud. Meaning, from that point onward, after the Talmud, there is no more formal authority. None in Jewish law. There is no one whom one cannot dispute. There is a local halakhic authority who has formal authority over his community, because that comes from below, and therefore there you can’t say the local halakhic authority is mistaken—that’s irrelevant. He is the one who determines, he was chosen to be the local halakhic authority, of course by virtue of the fact that the community chose him. Okay? If they didn’t choose him, they can throw him out. The same mouth that prohibited is the mouth that permitted. They can too, no problem. But as long as he is there, then he is the one who determines. That is the only thing that is also formal authority today. People try to create concepts like “the leading sage of the generation” or all kinds of things like that, but these are all inventions; they have no basis.

I was just thinking now: in the end every halakhic decisor, every great decisor, when he issues rulings, he presents his rulings as showing that this is really the opinion of those sages in the Talmud. Meaning, that Talmudic sage held this way. So from his point of view, if this is his view, then it has the same force. Meaning, my rulings are the view of those sages in the Talmud. From his point of view that’s correct. But if I don’t agree, then no. And then we enter into the question of what exactly that sage intended, because after all we don’t know. You decide, taking into account what the medieval and later authorities said and everything else, and you reach your own conclusion as to what the Talmud means—and that is what binds. Then it becomes something substantive, meaning what will convince me, what I will see from the proofs to be the most correct thing. So even that is substantive. In interpretation it is always substantive and not formal. You interpret; you need to be convinced that this really is the interpretation of the matter. And by definition that works on the substantive plane, not the formal one. To decide what makes sense. There one could perhaps argue, because even when you interpret a verse or a Talmudic passage, it consists of two things. It consists of the consideration of what makes sense to say and the textual consideration of what was actually said. Meaning, it may be that the text itself will persuade you that a certain thing was said even though in your eyes it is the less reasonable option, but for textual reasons that’s apparently what is written here. That perhaps you could call something more formal and less substantive. Fine. But in the end, you have to be convinced that this is the interpretation of the passage or the verse or whatever it may be, and then you are supposed to carry out the conclusion you have reached. Now today, the only formal authority we have is basically the local halakhic authority; there is nothing else. No formal authority besides that.

Okay. Now I want to go into Maimonides for a moment, the laws of Rebels, and speak a bit more about concepts of formal authority. The Great Court. I’m reading chapter 2 of the laws of Rebels. “If the Great Court derived one of the laws through one of the interpretive principles according to what appeared correct to them, and they rendered judgment, and then another court arose after them and another rationale seemed correct to it in order to refute that ruling, then it may refute and judge according to what appears correct to it, as it says, ‘to the judge that shall be in those days’—you are obligated to follow only the court that is in your generation.” Fine? Meaning, the Great Court interpreted through one of the principles, explained the Torah, whatever it may be, and established some halakhah. And a court comes after them, one generation later, two generations later, five generations later—the Great Court is again sitting—and reaches a different conclusion. It can dispute them, it can revoke their halakhah and establish a new halakhah. Okay? Halakhah 2. But that’s only a court, right? The Great Court, no? The Great Court, the Sanhedrin. What is the Great Court? It’s the Sanhedrin? Yes. Seventy-one judges. A Sanhedrin of seventy-one, yes. Halakhah 2. Any court of seventy-one? No, no—the Great Court that sat in the Chamber of Hewn Stone in Jerusalem. There was only one such court. “A court that decreed a decree or enacted an enactment or instituted a custom, and the matter spread throughout all Israel, and another court arose after them and sought to nullify the earlier matters and uproot that enactment and that decree and that…” If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot nullify its words. Even if the reason for which the earlier court decreed or enacted has ceased, the later court cannot nullify it unless they are greater than it. And how can they be greater in number, since every court and court is of seventy-one? Rather, by the number of the sages of the generation who agreed with and accepted the matter stated by the Great Court and did not dispute it. So this halakhah that appears here in halakhah 2 seemingly contradicts halakhah 1. Because in halakhah 1 he writes that any court can nullify the words of the previous court; there is no condition there that it be greater in wisdom and number. Right? In halakhah 2 he says that the later court, in order to nullify the words of the earlier court, must be greater in wisdom and number. How can it be greater in number? It’s always seventy-one. There are sages of the generation who join. Okay? And in wisdom? Then it has greater wisdom. What does it mean that sages of the generation join? They too agree with the decision of the court. If you want to revoke the ruling of the previous court, gather all the sages of the generation, including those not in the Sanhedrin, and let them all sign off on this ruling. Let’s see how many you get. If you get one hundred fifty and they had only one hundred, then you can revoke it. And of course it’s never actually done in such arithmetic fashion, but if there is a significant mass, then okay. What? Didn’t we say ordination was gone… Yes, yes. Like in tractate Beitzah, for example, Rabban Yohanan ben Zakkai who abolished the enactment of adorning Jerusalem with fruits. They had enacted that Jerusalem be adorned with fruits when people would come up on pilgrimage to bring the first-fruits; the streets would be decorated with fruits. That was a halakhic enactment. Rabban Yohanan ben Zakkai, when the Temple was destroyed, abolished it. The Talmud asks how he abolished it, for one must be a court greater in wisdom and number, and the assumption is that apparently he wasn’t. And despite the fact that the reason had ceased, because there is no longer pilgrimage, because there is no longer a Temple. That is what Maimonides writes here: “Even if the reason for which the earlier court decreed has ceased.” Fine? So there are several sources in the Talmud for this.

Where does this whole discussion come from? This contradiction begins already in the Talmud itself. There is one sugya in tractate Eruvin, and another in tractate Beitzah. In one sugya it says that one court cannot nullify the words of another court unless it is greater than it in wisdom and number. In another sugya it says that a matter established by vote requires another vote to permit it. Something established by the Great Court can only be nullified by another Great Court—and it does not say one greater in wisdom and number, only that it too be a Sanhedrin. How do you reconcile the two sugyot? So the medieval authorities explained it in different ways. Most of them, Maimonides included, explain that one sugya speaks about Torah-level laws and the other about rabbinic-level laws. What appears in Maimonides in halakhah 1 is Torah-level law. Torah-level in a somewhat limited sense—we already discussed that, on Tuesday, yes, in relation to interpretive principles. But for our purposes, something derived through interpretation here is called Torah-level. And for that, the Great Court alone is enough; it need not be greater in wisdom and number. If something was established by the Sanhedrin, any later Sanhedrin can nullify it. It doesn’t have to be greater in wisdom and number. By contrast, if it is an enactment or decree, a rabbinic law, then the nullifying court must be greater in wisdom and number. If it’s an enactment? Yes. A rabbinic law is harder to revoke than a Torah-level law. Yes. Now usually, how is this explained? It’s explained that the sages made their own words stronger than words of Torah. Sometimes the sages reinforce a rabbinic law more strongly than a Torah law, because they were concerned lest people come to treat rabbinic laws lightly. In my opinion there is something more fundamental here in this difference. Because what is the difference between a Torah-level law and a rabbinic law? A Torah-level law is a law created through interpretation. The sages interpret the Torah. The product is basically something they say is written in the Torah, because they are interpreting the Torah, right? So it is a Torah-level law. A rabbinic law is a law created through legislation. The sages determine it. They establish a decree or a fence or an enactment or whatever, and that is a rabbinic law. Okay? Like one hundred blessings a day, for example. For example, yes. So if, say, the first court interpreted the Torah in one way, and the second court interpreted the Torah in another way, the later court is not disputing the authority of the earlier court. Because the earlier court also didn’t say: do this because I am authorized. It simply revealed to us that this is what the Torah says. And that is interpretation. The later court says: no, in our opinion the Torah says something else. Fine? “You have only the court in your own days,” as Maimonides says. Whatever the court in my day says is, for me, what is written in the Torah. But in a rabbinic law, when the first court established that law, it wasn’t saying this is what the Torah says. It was saying: this is what we say. You need to obey this because we said so. To revoke that, you are acting against them. You are not saying the Torah says something else. When you act against them, you need to be greater in wisdom and number than they are. So it’s not merely that the sages made their own words stronger than words of Torah. It derives from the essence of the difference between Torah-level law and rabbinic law. We’ll later see the implications of this.

Okay. Just parenthetically, the Raavad here says as follows: “Greater in wisdom, etc.” Says Abraham: “The adornment of the markets of Jerusalem with fruits is a difficulty against him, for the earlier ones enacted it, and Rabban Yohanan ben Zakkai nullified it after the destruction because the reason of the earlier ones had ceased, and he was not greater than the earlier ones.” So he challenges Maimonides from that Talmudic passage in Beitzah that I mentioned, where we see that Rabban Yohanan ben Zakkai, though later, abolished the enactment because the reason had ceased. That is evidence against Maimonides, who says it does not matter whether the reason ceased or did not cease. Now the Raavad himself senses what Maimonides could answer. What can Maimonides answer him? If you want, Rabban Yohanan ben Zakkai was greater than his predecessors. But he says no, he was not greater than his predecessors. How do you know? How do you know? He asks against Maimonides: after all he was not greater than his predecessors, so how did he abolish it? But what are you asking? Maimonides says he was greater than his predecessors. What is the difficulty? Alone, no? No, no—it’s the court. He in the Great Court. Yes, the Great Court. He was the head of the court of Yavneh. There is a Mishnah there saying “the greatest of them all.” Ah—so here the Kesef Mishneh in the numbering of the commandments brings that, that Rabban Yohanan ben Zakkai, and “the greatest of them all” was Yonatan ben Uzziel, “the smallest of them all” and so on, among the eighty students. But notice that this is not… yes, it’s him, not his court. Though perhaps not only that—it is also a comparison between the students. I don’t know how that relates to the teacher. I don’t know. It compares Yonatan ben Uzziel and Rabban Yohanan ben Zakkai. But what was Rabban Yohanan ben Zakkai relative to Hillel the Elder? I don’t know. Maybe he was greater. Maybe all the students were greater than Hillel the Elder. Theoretically. But what does the Raavad assume here? He assumes something very strange. He assumes a decline of the generations. Meaning, if you are later, then you are presumably not greater. But notice what follows from that. It follows that halakhah 2 is a dead letter. It doesn’t exist. Halakhah 2 doesn’t exist. A later court can never be greater; by virtue of being later, it is probably not greater. If it is not greater, then what is this halakhah saying—that a later court can nullify a rabbinic law of an earlier court if it is greater? There is no such case. If it is later, then by definition it is not greater. It doesn’t have to be that when he says “not greater than the earlier ones” he means in every case. It could be specifically in this case. Yes, but how does he know? He is making a claim against Maimonides; it’s a difficulty. Maimonides can say: in my view, that’s not true. He is asking a difficulty against Maimonides. He says Maimonides is wrong because he in fact wasn’t greater. No, I mean, if he asks it as a difficulty, it seems somehow self-evident to him. But it can’t be. No one disagrees with this. I assume that behind this stands the assumption of decline of the generations. But one must understand that if that really is the assumption, then halakhah 2 is a dead letter. You can never apply it. Because by definition a later court is always lesser—there is decline of the generations. Maybe decline of the generations began at some specific point, and there was a period when there was no decline, and then… now we’re already piling constructions on constructions. Where are you getting this from? From what stage did it begin? From what stage didn’t it? How does the Raavad know that by then it had already begun? Maybe it began later. Maybe it never began at all. Meaning, all these hypotheses don’t seem to me strong enough to challenge Maimonides. How do you know—even for your own position? Is that your evidence? Who told you? I do think that behind this stands that assumption of decline of the generations, and it’s strange. It’s a strange assumption. Fine.

Why didn’t he challenge the whole paragraph, then, if it’s irrelevant? What? The Raavad. It’s relevant theoretically, but in practice it is never implemented. There is a Maimonides—in the Sefer HaMitzvot, one of the roots—where he says that commandments that are not eternal are not counted. For example, placing the bronze serpent on a pole isn’t counted among the commandments. Why not? Because it was said only for its time. It’s not something permanent. Then regarding the commandment to wipe out Amalek and the seven nations, he asks: so why did I count those? You should ask me, why did I count those? They too are commandments that have already ceased. Does he write that? I think so, otherwise he wouldn’t ask it. He asks: after all, that has ceased; we don’t have that today. He writes that about himself? Yes, he himself says: they challenged me, saying these are not permanent commandments, so why are they counted? And he says that whoever asks that doesn’t understand what a permanent commandment means. A permanent commandment is one whose applicability exists in principle always. It may not be implementable from a certain stage onward simply because the task has been completed. Amalek became extinct or was assimilated among the nations, and the seven nations likewise, so it is no longer implementable. But it is not a commandment that was said only for a specific time. It was said even for today. Theoretically, if today there were an Amalekite or one of the seven nations, we would also have to kill them. Technically, like sacrifices. There are no sacrifices today either—so what, does that make them a non-eternal commandment? Of course not; it’s eternal, we just have no Temple so we can’t offer them. Fine? A temporary commandment is one that was intrinsically said only for a certain time—not one that ceases to be implementable from a certain point on, but one that was not… yes? So similarly I want to say here: the Raavad is right that this is a true halakhah, but it may simply never be implementable. Fine.

Now halakhah 3. He says this applies only to matters they did not prohibit in order to make a fence around the Torah. But things that the court saw fit to decree and prohibit in order to make a fence around the Torah—if their prohibition spread throughout all Israel, then another Great Court cannot nullify them and permit them, even if it were greater than the earlier court in wisdom and number. Here is the first qualification, and there is a big question how to interpret it. A big question how to interpret it. “In what case is this said”—that one can nullify only if greater in wisdom and number? In ordinary rabbinic matters. But in matters enacted as a fence around the Torah, then not. If their prohibition spread throughout all Israel, then they cannot be nullified at all. But that covers almost all rabbinic laws. That’s not some little exception; it almost nullifies halakhah 2 entirely. Almost every rabbinic law is a fence against a Torah prohibition. What isn’t? Almost everything. Hanukkah, Purim—not. Positive commandments—not. But all the prohibitions, the vast majority of the prohibitions, are prohibitions that are a fence around the Torah. Fine—there are all kinds of intricate discussions in the commentaries as to what falls under halakhah 2 and what under halakhah 3. That’s not important for our purposes right now. Is it an issue of whether the prohibition spread? What? This issue of “if their prohibition spread”? No. “Their prohibition spread” is within the question of matters enacted as a fence. There is first a separate category of rabbinic laws enacted as a fence, as opposed to other rabbinic laws. So what is the problem? The problem is that this includes almost all rabbinic laws. What is left in halakhah 2? In halakhah 2, the later court can nullify the earlier court if it is greater in wisdom and number, even if the prohibition spread. Right? That’s halakhah 2. In halakhah 3, if the prohibition spread then no. So which laws are included in halakhah 2 and which in halakhah 3? In halakhah 2 are included laws not enacted as a fence. What are these laws that were not enacted as a fence? How do you know that in halakhah 2 it is even if the prohibition spread? Otherwise what is the difference between halakhah 2 and 3? He should have written it in halakhah 2 itself: unless the prohibition spread, in which case it cannot be. But he doesn’t write that. Halakhah 3 deals with a different category of laws, and only in that category does it make a difference whether the prohibition spread or not. I understood it as just adding the qualification… No, no, no. You see—“in what case is this said”—he doesn’t say… otherwise he would have to say: in what case is this said? Where the prohibition did not spread. But if it spread, then one cannot nullify it. He does not say that. He says: in what case is this said? In matters not enacted in order to make a fence. But in matters enacted in order to make a fence, the law is different. What is the law? If the prohibition spread, yes; if not, then… He is speaking about a different category than halakhah 2, and only in that category is there a distinction between spread and not spread.

Halakhah 4: “And a court has the authority to uproot even these matters temporarily, even though it is smaller than the earlier one. Rabbinic laws. They may be uprooted if this is temporary. Even though it is smaller than the earlier ones, for these decrees should not be more stringent than the words of Torah itself, for even Torah law any court may uproot as a temporary emergency ruling.” Before I continue reading, let’s think for a moment about this argument. It’s a very strange argument. He says: one may uproot rabbinic laws temporarily even if one is not a court greater in wisdom and number. How do I know? What is the proof? Because after all, even Torah law can be treated that way, so rabbinic law certainly can, right? That’s what he says. But in the first two halakhot he said that rabbinic law is harder to change than Torah law. So? To uproot permanently. So? Then where does the kal va-chomer come from? I have a refutation of the kal va-chomer. Because if you’re talking about changing permanently, then rabbinic law is harder to change. So what kind of kal va-chomer is this? Maybe one could say the opposite, no? What is our difficulty now? Maimonides says that one may uproot even these matters temporarily—matters enacted as a fence and so on—temporarily. And that can be done even by a court smaller than the previous one, as long as it is still the Great Court, though smaller than the previous one. Why? Because even for Torah law one can do that, so for rabbinic law certainly one can do that. His assumption is that changing Torah law is harder than changing rabbinic law. If one can do it for Torah law, then certainly for rabbinic law. But in halakhot 1 and 2 we saw that changing rabbinic law is harder than changing Torah law. But there it was always rabbinic law that was a fence, whereas Torah law was… Exactly. If the difference between halakhah 1 and halakhah 2 were really just that the sages reinforced their own words more than words of Torah and wanted to be stricter with rabbinic laws, then this kal va-chomer doesn’t even begin. But if I explain it substantively—when you are acting against the authority of the previous generation, you need to be greater than it in wisdom and number. In Torah-level law you are not acting against the authority of the previous generation. What about Maimonides in halakhah 4? Fine, but when you freeze a law temporarily, you are not nullifying a law, you are not acting against the authority of the previous generation. It is not revoking or changing the previous law; it is a temporary suspension. A temporary suspension is not acting against its authority. On the contrary, I am saying that what they determined is correct and remains in force; I just now want to suspend it for a year. Okay? That is not called acting against their authority. In that case, obviously, for Torah law it is harder to do than for rabbinic law. So then why the… Because Torah law is more severe than rabbinic law. Suspending a Torah law is far harder than suspending a rabbinic law. Everything we saw in halakhot 1 and 2 was not that it is harder to change Torah law than rabbinic law. Rather, when you act against the authority of the previous court, then be greater than it. If you are not acting against its authority, then halakhot 1 and 2 are simply not relevant. Here, when you are not acting against their authority, then those halakhot are irrelevant entirely. Then the matter is determined only by the severity of the laws, and Torah law is more severe than rabbinic law. That is an implication of the explanation I suggested earlier. Okay?

Smaller in wisdom and number—we are basically assuming that if the sages enact something, it is by virtue of their substantive authority as people who understand and see a need for something, unlike Torah law which comes, as it were, from above and there’s nothing to be done about it. Correct? No, but if the sages derived a Torah law, then there is something to be done, because we can interpret the Torah differently. Torah-level laws are laws written in the Torah? Torah-level laws are laws that the sages interpreted out of the Torah. So I can interpret the Torah differently. I am not acting against the Torah. But that means that if I make a temporary suspension, I am acting against the law for the time being. If I don’t observe it, until circumstances change. Correct. But notice—the concept of suspension: there is a huge innovation in halakhah 4 here, and people don’t notice it. Suspension of laws is possible in any forum, in any Great Court, even if it is smaller than the previous court. If you suspend—not revoke and not change, but suspend. Okay? What does it mean to suspend? To suspend means I do not revoke the previous law; in the meantime it is suspended until the circumstances change. Every court in every generation will have to examine whether this is still in force or not. So it is not something sweeping—I have not changed the Shulchan Arukh—but I have put a warning note next to it. Every court in every generation will have to examine whether to keep it, to restore it, but I am not determining that finally. Now look, the interesting point is—look at the continuation: “How so? A court that saw fit to strengthen the faith and make a fence so that the people not transgress Torah law may strike and punish not according to the law, but they do not establish the matter for generations and say that this is the halakhah. And similarly, if they saw fit temporarily to nullify a positive commandment or to transgress a prohibition in order to bring many back to the faith or to save many Jews from stumbling in other matters, they do according to what the hour requires. Just as a doctor cuts off this person’s hand or foot so that his whole body may live, so too a court instructs at certain times to violate some commandments temporarily so that they may all be preserved. As the early sages said: desecrate one Sabbath for him so that he may observe many Sabbaths.” He brings—one second—and compares this to a court striking and punishing not according to the law. It makes sense that a court, for example, decides to flog someone for a transgression that doesn’t incur lashes—it can do that. If the court sees that there is some problem, some transgression that people are beginning to stumble in, it can flog them even though according to halakhah lashes are not required. A court may strike and punish not according to the law. Maimonides understands that the suspension of laws is founded on this authority of the court to uproot and punish not according to the law. Right? He compares the two things. Why is that important? Because this is an interesting point. A court striking and punishing not according to the law is not only the Great Court. How do I know? Section 2 of Choshen Mishpat in the Shulchan Arukh. The Shulchan Arukh does not bring at all laws that apply only to the Great Court. The Shulchan Arukh deals only with laws that apply in our time. There is a whole section there, section 2: a court strikes and punishes not according to the law. Meaning, the authority to strike and punish not according to the law is not vested only in the Great Court. It’s like kingship. For the sages of every generation. It’s like kingship—but doesn’t giving lashes require the Great Court? No, ordinary lashes, lashes for a prohibition—that punishment comes from the law itself, it is not “not according to the law.” It is a punishment that the Torah itself establishes. Those punishments are given only when there is a Great Court. To this day, a halakhic court cannot impose fines. But punishment not according to the law—when I strike someone who doesn’t deserve lashes because there was no act, or for a moral offense that is not halakhic, it doesn’t matter, various contexts in which punishment is not deserved according to halakhah—the court can nevertheless decide to punish: lashes, bodily punishment, something like that. That does not require the power of the Great Court. What is needed is an authority recognized by the public. Is this like an emergency enactment? What? Rebuke lashes? Rebuke lashes, a sort of, yes, correct, correct. And what does the Meiri say? And what does Maimonides say? A fortiori: if Torah commandments can be suspended, then rabbinic commandments certainly can be suspended. Meaning, he clearly assumes that Torah commandments too can be suspended. Yes, no matter whether in the direction of prohibition or permission. Yes, yes—to change in either direction. “To uproot these matters temporarily”—to uproot apparently means even through positive action, not only by passive omission. To change. When I say suspend it sounds like passive omission, but no—the meaning is to change it, whether through positive action or passive omission, if it’s temporary.

Now you know what “temporary” means. “Temporary” is like the ban of Rabbenu Gershom—it was temporary. It doesn’t change because no one will ever change it. It’s temporary. There is apparently something called “temporary.” Yes, “temporary” is a somewhat formal matter. It’s not just a game. If, for example, a situation were to return today such that people became convinced that, no, Rabbenu Gershom’s ban is no longer right, then it could be changed back. That won’t happen, probably, because we do think it remains right going forward too. So substantively it really is temporary. It doesn’t matter that de facto it comes out permanent. In terms of the mechanism, it truly is temporary, because it doesn’t bind us permanently. Every court in every generation has to decide whether to continue it or not, and the courts decide to continue it. Fine. And here too it doesn’t say specifically a court ordained in the Land of Israel; even a lesser court can do it. He says: “A court has authority to uproot, even though it is smaller than the earlier ones.” It doesn’t say anything else, but just as… If you go with the area where the court actually… No, but a court that strikes and punishes not according to the law is also the great court. Yes? “Great” here means a court publicly recognized. Not every court can decide to flog someone because it wants to. Perhaps the very same one that can enact enactments and decree decrees. Enactments and decrees it cannot make, because it is not the Sanhedrin. All it can do is determine something temporarily—a suspension. So that is an emergency enactment, no? An emergency ruling, an emergency enactment, a temporary suspension—call it what you want.

Rabbi, just a question regarding punishing not according to the law. If I remember correctly, the Rabbi said that in general, in order to punish I have to command; if I didn’t command, then I also can’t punish afterward. That’s in punishment according to the law. In punishment not according to the law, obviously you don’t have all the halakhic rules. That’s why it’s called punishment not according to the law. Punishment not according to the law means, for example, if someone didn’t receive warning and I still decide to punish him even without warning. That is punishment not according to the law. Someone murdered based on one witness, or without warning—I can punish him, place him in confinement. The Talmud brings punishment not according to the law for such a case. They place him in confinement. What is that? They put him in a cell until his intestines burst and he dies. And I’m not killing him by the sword or by stoning or something of that sort—not according to the law, but not according to the law. The punishment not according to the law is harsher. Yes, but I can do it. Now of course this is where the person understands that it is forbidden. The warning wasn’t given, some formal elements were missing—you understand that he too understands that it’s wrong. We don’t punish someone who doesn’t understand it’s wrong. So this whole idea that I must command in order to punish is really quite a formal matter. No, these are the rules for punishment according to the law. If you are not punishing according to the law, then those rules don’t apply. You’re operating outside the law. Outside the law—decide what you’re doing. The law determines what is done according to law. Yes, I mean then if there is no place for law at all… Then the court decides what it thinks. I’m asking, where does the authority come from? The Torah gives authority to the court to punish not according to the law. Halakhah gives that authority. What—where does the authority come from? From whatever they decide. They also decide their own authorities. Fine, we’ll stop here.