The Thought of Halakha – 5783 – Lesson 23

Table of Contents

• Authority and changing Jewish law in Maimonides: Torah-level, rabbinic, and suspension
• Resolving the contradiction: change as uprooting authority versus suspension that does not uproot
• A quotation from Maimonides on an emergency ruling and the “doctor” model
• Division of powers: Derashot HaRan, king, and Sanhedrin
• The abolition of monarchy and the concentration of powers in the Sanhedrin
• The Nasi of the Sanhedrin, the Davidic line, and “the scepter shall not depart from Judah”
• The functions of the Sanhedrin as an actual government and sources in the Mishnah
• The Exilarch in Babylonia and a clash of authority with the Land of Israel (Sanhedrin 5)
• The disappearance of the national structure and the redirection of ordinary questions to halakhic decisors
• The seven leaders of the town, majority rule, and the need for “besides that, you simply can’t manage without it”
• The distinction between a majority in a court and a democratic majority, Plato, and moral authority
• Arrow’s theorem and the economics of public decision-making
• “A court may flog and punish not according to the law” as a legacy of the king’s authority
• Practical conclusion: suspending laws even nowadays and what that implies for changing Jewish law
• “Do not deviate,” formal authority, and the utopia of halakhic uniformity
• The State of Israel, dina de-malkhuta dina, and the anachronism of “king”
• The ban of Rabbeinu Gershom as an example of long-term suspension
• Additional mechanisms for changing/abolishing laws nowadays: the reason for the verse and purposive interpretation
• The formulation of the prohibition: prohibition of the act versus prohibition of “entering into a concern”
• An original factual mistake: annulment without renewed authority
• A reason that has entirely lapsed, concerns, and legumes
• Danger, custom, and absurdity
• Practical ending: annulment of vows

Summary

General Overview

The lecture presents Maimonides’ view of halakhic authority and changing Jewish law, and distinguishes between changing a law and temporarily suspending it. The claim is that the particular difficulty in annulling rabbinic enactments stems from a confrontation with the authority of an earlier court, whereas suspension does not “go against” that authority and is therefore possible even without being greater in wisdom and number. From Maimonides’ linkage between suspending laws and the rule that “a court may flog and punish not according to the law,” a broader argument is developed: even nowadays there are practical mechanisms for updating the application of Jewish law, mainly through suspension, purposive interpretation in certain cases, and annulment based on an original factual mistake or on a concern that no longer exists.

Authority and changing Jewish law in Maimonides: Torah-level, rabbinic, and suspension

Maimonides, in the Laws of Rebels, rules that changing a Torah-level law requires the Great Court, and that “a matter established by count requires another count to permit it.” Maimonides also rules that changing a rabbinic law requires a court greater in wisdom and number. He presents a mechanism of temporarily suspending laws and compares it to the court’s ability to “flog and punish not according to the law,” and from this he derives an a fortiori argument: if even Torah laws can be suspended temporarily, then certainly a rabbinic law can be suspended.

Resolving the contradiction: change as uprooting authority versus suspension that does not uproot

The contradiction between the claim that rabbinic laws are harder to change and the possibility of suspending even Torah laws is resolved as follows: changing a rabbinic law is seen as acting against the authority of an earlier court, and therefore requires superiority in wisdom and number. Changing a Torah law is not necessarily defined in the same way as acting against the authority of an earlier court, so the Great Court suffices. Temporary suspension, however, is not an act against earlier authority even when it deals with rabbinic law, and therefore the “simple hierarchy” returns, in which rabbinic law is lighter than Torah law. That is what makes Maimonides’ a fortiori argument work.

A quotation from Maimonides on an emergency ruling and the “doctor” model

Maimonides says that a court is permitted “to uproot even these matters temporarily… so that these decrees should not be more stringent than the Torah itself,” and he explains that courts may flog and punish contrary to the strict law in order to strengthen religion and make a protective fence. Maimonides clarifies that this is not established for generations with the statement that “this is the law,” but is done according to the need of the hour. He uses a medical image of amputating a limb to save the whole body, and quotes: “Profane one Sabbath for him so that he may keep many Sabbaths.”

Division of powers: Derashot HaRan, king, and Sanhedrin

Derashot HaRan, sermon 11, presents a division of authority between the king and the Sanhedrin. The Sanhedrin deals with Torah law, while the king deals with morality, the functioning of social life, and politics. The king has a system of courts operating on his behalf that are not bound by Torah law, and this is “the law of the king,” which functions alongside the Torah court system. The king’s authority derives from his very role in managing public life, and therefore he can enact regulations, legislate, and enforce them through sanctions.

The abolition of monarchy and the concentration of powers in the Sanhedrin

At the end of the First Temple period, monarchy was abolished, and authority “drained into” the Sanhedrin, so that the Sanhedrin held both powers. The argument is that when one authority disappears, another temporarily takes over its powers to allow proper governance. In the Second Temple period, without independence and under Roman rule, it was impossible to reestablish monarchy, so the Sanhedrin began carrying out administrative leadership functions alongside its Torah role.

The Nasi of the Sanhedrin, the Davidic line, and “the scepter shall not depart from Judah”

It is argued that toward the end of the Second Temple period and afterward, the heads of the Sanhedrin—Hillel the Elder and his descendants, Rabban Gamliel the Elder and Rabban Gamliel of Yavneh, and Rabbi Yehudah HaNasi—were descendants of King David. The suggested explanation is that since the Nasi of the Sanhedrin also preserved powers of kingship, they wanted him to have Davidic lineage in order to fulfill “the scepter shall not depart from Judah.” A distinction was mentioned between the Exilarch in Babylonia and the Nasi of the Sanhedrin, along with a claim about lineage through daughters as opposed to sons.

The functions of the Sanhedrin as an actual government and sources in the Mishnah

The Mishnah in Moed Katan is described as showing that the court repairs roads before the festival, puts up markers for someone who killed unintentionally, and manages matters associated with “ordinary life.” The claim is that the entire era of the Oral Torah as we know it was created, conceptualized, and written in the Second Temple period and afterward, when there was already no king. Therefore, in the early sources of Jewish law, the picture that emerges is as if there were only one authority, the Sanhedrin, and the absence of documentation about the king’s executive powers makes Derashot HaRan seem like an “invention” to someone who reads only the Mishnah and Talmud.

The Exilarch in Babylonia and a clash of authority with the Land of Israel (Sanhedrin 5)

In Babylonia, a governing function reappeared in the form of the Exilarch, who is presented as a descendant of David and as a “king” recognized by the ruling authorities. The Talmud in Sanhedrin 5 is described as presenting a jurisdictional dispute between the sages of Babylonia and the sages of the Land of Israel over the question of who grants judges “permission to judge.” The difference between professional ordination and governmental appointment was explained by analogy to the difference between a law professor and a judge, and between a psychiatrist and a district psychiatrist. The conclusion in the Babylonian Talmud, it was said, is that “Babylonia decides.”

The disappearance of the national structure and the redirection of ordinary questions to halakhic decisors

With the decline of the Babylonian center and the dispersal of the communities from roughly the tenth to the eleventh century onward, a centralized Jewish governmental-legal structure disappeared. Isolated communities needed decisions on matters of administration, taxes, and public institutions, and in the absence of a king or a central hierarchy, they turned to the local rabbi and the mara de-atra. That is how many responsa came to be written on questions that had no clear halakhic basis, simply because there was no other address.

The seven leaders of the town, majority rule, and the need for “besides that, you simply can’t manage without it”

The discussion of decision-making among the seven leaders of the town was presented as an example of community administration rather than a court. Rabbeinu Tam was presented as favoring a requirement of unanimity, while the Rosh, Rashba, and Or Zarua were presented as supporting majority rule. The claim was that the respondents cite “follow the majority,” but then add, “besides that, you simply can’t manage without it,” because they understand that the verse was said about a court and not about a “municipality.” So the use of majority rule here stems from practical-political reasoning, not from formal Jewish law.

The distinction between a majority in a court and a democratic majority, Plato, and moral authority

The claim was that a democratic majority is not a tool for reaching the truth but for expressing what the public wants, and it is based on a person’s right to participate in determining his own fate. Plato’s question of rule by the wise was presented as irrelevant within a democratic framework, because wisdom does not grant the right to rule without public authorization. By contrast, “follow the majority” in a court was presented as a cognitive tool for reaching the truth, and the Sefer HaChinukh was cited as saying that where the minority is far wiser, one may follow the “majority of wisdom” rather than simply count heads.

Arrow’s theorem and the economics of public decision-making

A book by Shmuel Nitzan, published by the Open University, was mentioned as dealing with how to represent “what the public wants.” The idea was presented that majority rule is a “first approximation” to public opinion when no better function exists, and “Arrow’s theorem” was mentioned as establishing that there is no function satisfying five certain conditions for representing collective choice. From this, another distinction was developed between majority as legal-halakhic truth and majority as a representative-political solution.

“A court may flog and punish not according to the law” as a legacy of the king’s authority

It was pointed out that Choshen Mishpat, section 2 in the Shulchan Arukh, brings the law that “a court may flog and punish not according to the law,” and that this applies nowadays. The claim was that the source of this authority is the king, who needed to impose effective punishment in situations where Torah law was not sufficiently deterrent—for example, a robber for whom the only formal consequence is returning the stolen object. The king, it was argued, would operate by means other than the court’s formal mechanisms of warning and witnesses, and when there is no king, that authority effectively passed to the court and thus made its way into later halakhic rulings as well.

Practical conclusion: suspending laws even nowadays and what that implies for changing Jewish law

Since Maimonides ties the suspension of laws to the rule that “a court may flog and punish not according to the law,” and since that rule appears in the Tur and the Shulchan Arukh as a binding ruling, it was argued that the authority to suspend laws exists even in today’s courts. The absence of a Sanhedrin, it was argued, does not make the discussion of changing laws a “dead letter,” because suspension allows one to avoid implementing a law without uprooting it and without acting against earlier authority. The possibility was raised of a prominent central court recognized by public-Torah consensus, which could function at least on the model of suspension rather than permanent uprooting.

“Do not deviate,” formal authority, and the utopia of halakhic uniformity

The claim was that the authority of the Sanhedrin does not depend on being incapable of error, but on formal status—just as the Knesset can also make mistakes and yet its decisions remain binding. The utopian image of the Sanhedrin’s return as a state of total uniformity was presented as problematic, and the hope was expressed that a future Sanhedrin would impose uniformity only where there is real social need, while leaving room for “each river according to its own course.” The distinction between a rebellious elder and the obligation of “do not deviate” upon an ordinary person was presented as part of clarifying the mechanisms of obedience.

The State of Israel, dina de-malkhuta dina, and the anachronism of “king”

It was argued that the authority of Israeli law derives from dina de-malkhuta dina, like the authority of non-Jewish governments, and not from the category of a “king of Israel.” The comparison between the relationship of citizen to elected officials and that of subject to king was called an anachronism, and it was argued that dina de-malkhuta dina does not add any obligation beyond what democratic citizenship already requires, but simply gives it halakhic endorsement. The state, it was said, should not be seen as a “Jewish state” in a sense that would activate categories such as an obligatory war, and introducing such concepts was described as an “intellectual joke.”

The ban of Rabbeinu Gershom as an example of long-term suspension

The ban of Rabbeinu Gershom was presented as a ruling for a thousand years, after which in practice no possibility of repealing it was raised, because the sages of later generations continue the suspension. It was argued that the mention of “a thousand years” was meant to emphasize that this is a suspension, not a change in Torah law, so as to leave future generations the possibility of deciding according to their own circumstances. It was explained that suspension can also be communal rather than nationwide, if the public accepts the authority, and examples were given of institutions such as the Council of the Four Lands and “Napoleon’s Sanhedrin” as regional authorities.

Additional mechanisms for changing/abolishing laws nowadays: the reason for the verse and purposive interpretation

It was said that for Torah law “we do not expound the reason for the verse,” as the accepted ruling against Rabbi Shimon, and the example of King Solomon was cited: “He shall not have many wives, lest his heart turn away.” The Rosh in Bava Metzia 90 was cited as arguing that where the reason is clear, “we do expound the reason for the verse.” A responsum of the Rosh was brought regarding enactments, according to which where the reason is clear, annulment is possible even without a court. The question of Rabbi Akiva Eiger about “one may not read by candlelight” was mentioned, along with the explanation in Chazut Kashot that when the reason is written into the body of the enactment, there is room to distinguish cases where the concern does not exist.

The formulation of the prohibition: prohibition of the act versus prohibition of “entering into a concern”

It was argued that “one may not read by candlelight lest he tilt it” can be understood as a prohibition against entering a situation involving a concern of tilting, rather than as a formal prohibition on the reading itself. A parallel distinction was presented regarding the verse about the king, according to which the Torah forbids “the turning away of the heart,” and having many wives is an example of a mechanism that can lead to that. On that understanding, there is no need to rely on expounding the reason for the verse in order to permit a case in which there is no “turning away of the heart,” because in such a case no prohibition ever arose in the first place.

An original factual mistake: annulment without renewed authority

It was said that where an enactment rested on an understanding of reality that turns out to have been mistaken from the start, this is not a change in Jewish law but the cancellation of a mistaken determination, by analogy to a “mistaken transaction.” Examples were given such as “one does not kill a louse on the Sabbath because it does not reproduce,” and the claim was that when scientific reality shows the underlying assumption was incorrect, there is no need to convene a court in order to annul the rule. It was mentioned that halakhic decisors sometimes resist this out of fear of “reform,” but the argument was that the principle applies both leniently and stringently.

A reason that has entirely lapsed, concerns, and legumes

Medieval authorities (Rishonim) and Tosafot were mentioned as holding that when the reason has entirely lapsed and is not expected to return, the enactment lapses as well. Legumes were presented as a concern suited to older production conditions in which leavened grain could get mixed in, so if the concern no longer exists there is no justification for continuing to “drive around the pit” after it has been fixed. Support was brought from Tosafot in Beitzah regarding the decree of “the chaverai,” which had been established because of a governmental threat, and once there are no more “chaverai,” there is no place for the concern to continue.

Danger, custom, and absurdity

Examples were given of concerns that continue even when they no longer have any factual basis, such as “uncovered drinks” because of snakes, and the issue of fish and meat was discussed as a danger that, in the speaker’s opinion, has no recognized medical basis and therefore lacks the force of a real existing concern. It was argued that when the continuation of an enactment leads to desecration of God’s name and to absurdity, there are sources among medieval and later authorities that allow change even without the requirements of a court greater in wisdom and number. The view was expressed that legumes—and even “lokum” on Passover—serve as examples of situations in which continuing the practice seems embarrassing and invites ridicule toward the system.

Practical ending: annulment of vows

It was explained that when one treats a prohibition as a custom and a personal change is needed, annulment of vows is done before three people, usually a rabbi and two others, though rabbis may refuse to permit it if they believe the thing is intrinsically forbidden. The discussion concludes with the statement that there are “very many possibilities even nowadays to bypass the question of authority” and make adjustments, and further discussion was deferred to the next lecture and to an article that will be uploaded to the site.

Okay, so last time we actually started Maimonides’ discussion of the concepts of authority. In the Laws of Rebels we saw there that in order to change a Torah-level law you need the Great Court; something established by a count requires another count to permit it. In order to change a rabbinic law, there has to be a court greater in wisdom and in number. After that we also saw that Maimonides has a mechanism of suspension, suspension of laws. Maimonides compares this to a court that administers lashes and punishment not according to the formal law. And from there too it emerges—I explained this explicitly there last time—Maimonides explains that one must conclude that a court can suspend laws, because even with Torah law it can do that, so with rabbinic law it certainly can do that. And then I asked: this contradicts the first two laws in that same chapter, because there we saw that it is harder to change a rabbinic law than to change a Torah law. For rabbinic law you need a court greater in wisdom and in number, whereas for Torah law another Great Court is enough. So I said that from here there is proof for what I explained there: that the reason it is harder to change rabbinic law than Torah law is not really because it is harder to change it, but because with Torah law you are not going against the authority of the previous court. Therefore you do not need to be greater than it in wisdom and number. But with rabbinic law you are going against the authority of a previous court, and therefore in order to override it you need to be greater in wisdom and number. In our case, where we are dealing with suspension, suspension does not go against the authority of the court even if we are dealing with a rabbinic rule; therefore there the simple hierarchy returns, that certainly a rabbinic rule is easier than a Torah rule. And if it is possible to suspend a Torah rule, then certainly it is also possible to suspend a rabbinic rule. That is Maimonides’ argument a fortiori. We also saw this point—I’ll just remind you of it—Maimonides compared it to a court that administers lashes and punishment not according to the formal law. What? Law 4. I’ll read it, no matter, I’m not going to turn on all this annoying business now. “A court may uproot even these matters temporarily, even though it is lesser than the earlier ones, for these decrees should not be more severe than the Torah itself, for even matters of Torah any court may uproot as a temporary ruling. How so? A court that sees a need to strengthen the religion and make a fence so that the people not transgress the words of Torah, administers lashes and punishments not according to the law; but they do not establish the matter for generations and say that this is the law. And likewise, if they see a temporary need to cancel a positive commandment or transgress a prohibition in order to bring many back to the faith or save many of Israel from stumbling in other matters, they do according to what the hour requires. Just as a physician cuts off this one’s hand or foot so that the whole person may live, so too a court instructs from time to time to transgress some commandments temporarily so that all of them may endure, in the way the early Sages said: desecrate one Sabbath for him so that he may observe many Sabbaths.” So basically Maimonides compares this ability to suspend to the law of a court that administers lashes and punishments not according to the formal law. And here I just want to note—Itamar, right?—I just want to note what the meaning of this thing is. Where does this really come from, this whole idea that a court administers lashes and punishments not according to the law?

There is a very common mistake, I think, which leads people to see the court as basically having some kind of total authority. In every area, whatever it determines is binding. Everything belongs to Jewish law in a certain sense. But the truth is that this is not correct. We saw Rabbi Nissim of Gerona’s homilies, in Homily 11; there he says that there is a division of powers, even judicial powers, between the king and the Sanhedrin. The Sanhedrin deals with Torah law, and the king deals with morality, with the functioning of social life, our ordinary life, politics, you could say. And the king has a system of courts that can also judge on his behalf, and they are not bound by Torah law. That is the king’s law, a different law. And it operates parallel to the Torah system of religious courts that judge according to Torah law. Where does that authority of the king come from? It apparently comes from the very definition of his role. In other words, from the very fact that a king is appointed in order to run life, the Sages understand by logic that if he has to run life, then apparently he has authority to do so. How will he do that? He can apparently legislate laws, establish ordinances, establish courts that will enforce them and impose sanctions on those who violate them; otherwise he cannot run life, right? So the very ability they gave him to run life basically means that there is an entire governmental system subordinate to the king. From this also comes the law of the kingdom in relation to non-Jews. The law of the king is no different from the law of the kingdom among non-Jews. It is the law of secular authority. Now what happened? In the middle of the Second Temple period—the monarchy, really not in the middle, at the end of the First Temple period. At the end of the First Temple the monarchy ceased. That’s it, there was no longer a king in Israel. What happened at that stage? What happened was that the authority flowed into the Sanhedrin. The Sanhedrin now held both powers.

We had an interesting example of this a few years ago. There was a plane that crashed in Poland with the entire Polish government on it. Everybody died. Nothing was left. Their executive branch no longer existed. What do you do in such a situation? So the court took the powers for itself—or the Sejm, yes, their parliament—one of the branches, the two branches that remained, took the powers for itself until they could organize elections, and those elections created a new government, a new executive branch. Okay, you can’t function without that. There was that movie once, an American science-fiction thing, where Capitol Hill, all of Congress, was destroyed and one person remained—like that series, Designated Survivor on Netflix. Could be, maybe it was a series, I don’t know. There was something like that. In other words, somehow the king had to reconstitute, the president had to reconstitute, parliament, Congress, okay? The Senate and Congress and so on. In other words, there’s no choice: where one branch disappears, another branch takes on its powers, and if it is honest enough then it only manages things in the meantime until it succeeds in re-establishing the missing branch. Okay.

What happened with us? Once the king disappeared, with us the separation of powers in halakhic government, in halakhic tradition, was divided not into three branches but into two. There was the king and there was the court. What? No, what president? There is no president. Which president? There is the president of the Sanhedrin. That is the Sanhedrin. There is a king and there is a Sanhedrin. During the Maccabean period there were two roles, both the head of the Sanhedrin and the president. No, that was already much later, after there was no king. I’m getting to that in a second. So what happened as a result? The heads of the Sanhedrin received the king’s authority. And therefore indeed toward the end of the Second Temple and onward we already find that the heads of the Sanhedrin—basically Hillel the Elder and his descendants, Rabban Gamliel the First and the Second and Rabbi, that whole dynasty—they are all descendants of King David. “The scepter shall not depart from Judah,” so basically the claim is that the heads of the Sanhedrin were descendants of King David, probably through the daughters and not the sons. Through the sons you have the Exilarch in Babylonia; through the daughters, the president of the Sanhedrin. But they were descendants of David. Why were they descendants of David? Because they preserved within themselves the king’s authority. Once you preserve the king’s authority, obviously the king is supposed to be from the house of David, so therefore they wanted the one preserving the king’s authority to be from the house of David in order to fulfill the verse that the scepter shall not depart from Judah.

Now, what happens then? As a result, the Sanhedrin begins to take on the king’s functions. Now because of the political and governmental situation in the Second Temple period, we did not have independence, there was Roman rule, so in such a state it was impossible to return and re-establish the monarchy. There was no executive branch. Let’s say the Sanhedrin is the legislative and judicial branch. The executive branch is the king. It’s not entirely accurate because the king also legislates his own laws, but let’s say that. So basically in halakhic thought it is divided into two branches: king and Sanhedrin. Now the king is gone, there is no monarchy anymore. What happens then? It passes to the Sanhedrin. And then what? Not only does it pass to the Sanhedrin; now the Sanhedrin also performs the king’s functions. In other words, it basically functions as the executive branch as well. So for example, the Mishnah in tractate Moed Katan says that the court repairs the roads before the festival. For the pilgrims, they put signs there for the accidental killer so he will know where to flee, and they are the Ministry of Transportation, they are the roads authority, they are basically managing all ordinary life, what the king was actually supposed to do.

Now remember that the entire era of the Oral Torah, everything we know from the Oral Torah, all of it is from the Second Temple period. We do not have Oral Torah from the First Temple period. There are some specific traditions—there are things like the law of the eruv tavshilin was instituted by King Solomon and so on—but those are anecdotal things. Broadly speaking, the Oral Torah we know was entirely created, conceptualized, and written in the Second Temple period and after it. Now what happens is that in that period there was already no king. And then when we look at the Mishnah, from our point of view the Sanhedrin has full authority: it is the executive branch, the legislative branch, the judicial branch, everything. It and the courts beneath it, the whole hierarchy of courts. And therefore when you look at the earliest sources of Jewish law, the earliest written sources of Jewish law, basically you can get the impression that in Jewish law there is only one authority, only the Sanhedrin. No king. Why? Because in that historical period there simply was no king. So there are discussions in chapter 2 of tractate Sanhedrin about who judges the king and how he is judged and whom he judges and all kinds of things like that, but those are marginal discussions. There is nowhere in the Mishnah anything about the king’s executive functions, what his powers are, that he has his own judicial authority. Nothing, nothing at all. It looks like an invention of Rabbi Nissim of Gerona’s homilies.

And therefore when people today read Rabbi Nissim of Gerona’s homilies, it looks to them like some kind of invention and they don’t understand where it comes from. Because when you look at the Mishnah and the Gemara, at the Talmuds, you do not find a source for it. But the fact that you do not find a source for it does not mean it did not exist. It simply means that the Mishnah and the Talmuds were written in a period when there was already no royal authority. So therefore there is no record of it in ordinary halakhic documentation. Rabbi Nissim of Gerona tells us what came before. What was the previous stage before this thing changed, before the monarchy ended—that was the original system. The state we see as the original system is actually a state that was created after the fact at a certain stage, once there was already no king. And therefore halakhic thought, Torah thought, got used to the idea that all authority is basically entrusted to the court. The court determines everything, the court is responsible for all government in Israel. All governmental functions in Israel are entrusted to the court. That is what we had been used to forever.

So for example, at the beginning of—I think maybe we spoke about this last semester, I don’t even remember anymore—at the beginning of the 11th century, 12th, even before that actually, from the 10th century and on, the Jewish center in Babylonia began to disperse. Until then we had been in exile in the Second Temple period, but the exile was in Babylonia, where in Babylonia there was a very clearly defined national structure, and for most of the time we also had judicial autonomy. So the Exilarch was basically the king of the Jews, and under him were systems of courts that judged, and this was spread all over Babylonia. There was Sura, Pumbedita, Nehardea—these were the great courts, the central places of Torah scholars—and they basically managed a complete system of courts throughout Babylonia, throughout the Babylonian empire, Media and Babylonia and so on, all of Persia and Media and so on. Now what happened there was essentially a continuation of the situation in the Land of Israel, even though it was in Babylonia. More than that, something really absurd happened there. In Babylonia a function suddenly returned to us that in the Land of Israel had not existed for hundreds of years: the king. In the Land of Israel, we said, monarchy had already been channeled into the president of the Sanhedrin. In Babylonia suddenly we had the Exilarch. The Exilarch is in the Gemara. And he too, by the way, was a descendant of King David, because he was the king.

And in the Gemara in Sanhedrin 5a there is in fact a very interesting clash between the sages of Babylonia and the sages of the Land of Israel, a jurisdictional dispute. Because the sages of the Land of Israel did not recognize that we now had a king in Babylonia. They said: we are in the Land of Israel, so we are the central authority. And the sages of Babylonia claimed: what are you talking about? You have no king, you have no secular government; we have a government that the Gentiles recognize. We have judicial autonomy, governmental autonomy, and “his trap is spread over the whole world,” that was the biggest empire. And therefore the claim was that the Exilarch was the true king today of the Jewish people, despite sitting in exile, but he was the true king.

Now the sages of the Land of Israel had already become accustomed to the situation in which all authority was entrusted to the president of the Sanhedrin and to the Sanhedrin, and therefore from their point of view secular authority or monarchy was basically in the hands of the president of the Sanhedrin. And there was a very interesting jurisdictional dispute there. The question was: how do you do ordination? Ordination for issuing rulings, for judgeship. Of course you need the professional ordination, that you have to be ordained by someone already ordained. But the question is: who gives you permission to judge? The governmental authorization to judge, as we discussed—what is the difference between a law professor and a judge? Not that the judge knows more than a law professor, but the judge has a role he received from the government, and therefore he has authority. What a judge says I have to obey; what the professor says I do not have to obey. If he said it, he said it—so what if he said it? He has no authority. What is the difference between a psychiatrist and a district psychiatrist? We talked about this in the context of formal authority and substantive authority. Right? It is not that a district psychiatrist knows more than an ordinary psychiatrist, not necessarily, but he has the authority to hospitalize someone involuntarily, which an ordinary psychiatrist cannot do. Where does that authority come from? Not from his profession—the government gave it to him.

The same thing when you appoint a judge. He has to do—he has to go through the legal-knowledge track, university or whatever, the bar association or whoever gives him the stamp that he has the professional knowledge. And that is not enough. In order to become a judge he has to be appointed by the government, receive authority from the elected government. Okay? The same thing with ordination. When a sage wants to become a judge, first you need to check that he is fit to judge, that he knows the material. That is the ordination he receives from ordained sages, from the previous sages. But besides that, in order to become an actual judge he needs to receive authority from the government, the secular government. Not in the sense of checking his knowledge—his knowledge was checked by the sages—but in the sense that he is appointed to the role of being a judge. And from now on everyone must obey what he says. That appointment has to come from the government; it is not an appointment based only on testing his knowledge. There is some kind of governmental authorization here; he becomes a governmental authority, the judicial branch. Okay? A governmental authority has to be appointed. Knowledge does not give you authority to be a governmental body; you have to be appointed.

Now there was a dispute between the sages of the Land of Israel and the sages of Babylonia over who grants governmental authority to judges. Is it the Exilarch in Babylonia because he is the king, or the president of the Sanhedrin in the Land of Israel, who is also the ordainer, who also performs the ordination, and who also has to grant the secular authorization? That is the argument. There was a major argument in the Gemara on page 5—Babylonian Talmud of course did not accept the other side. The Babylonian Talmud’s conclusion is that Babylonia decides. I do not know whether the sages of the Land of Israel agreed with that, but when we study the Babylonian Talmud the conclusion is that Babylonia decides. Yes, that there is still ordination by the Sanhedrin. Yes, that is clear, that is a simple law, nobody disputes it. Ordination is done only in the Land of Israel and only by the ordained—that is clear. But besides ordination you need permission to judge. Ordination only means you are a certified legal scholar. A legal scholar is not a judge. Now you have to be appointed to the governmental role of judge. That you have to receive from the governmental authorities, whose original source was the king. Now the argument was over the question of who is the king: the Exilarch or the president of the Sanhedrin. The Gemara in Sanhedrin 5a is a very beautiful anecdote showing us the meaning of this situation in which there is no king, and suddenly a king is reborn in Babylonia. In the Land of Israel they had already gotten used to the idea that the president of the Sanhedrin is the king, and suddenly they begin arguing—they do not understand: wait, so who is the real king here? Okay?

What is his halakhic role? According to Jewish law the king has a status. What halakhic role? He is not responsible for Jewish law; the Sanhedrin is responsible for Jewish law. But Jewish law recognizes the king’s authority in secular domains. No, halakhic authority is the court. The king is also supposed, among his functions, to ensure that the Jewish people keep the commandments and do not commit sins. Among other things he is also supposed to beat them into line and make sure of that, impose sanctions, so that people keep the commandments. But court punishments and all the lashes and executions and fines and everything—that is all the court, it has nothing to do with the king. So that is the Gemara in Sanhedrin. But what emerges from this is that at least in the Land of Israel this conception became rooted: that secular authority too had basically flowed into the Sanhedrin, into the president of the Sanhedrin.

Now that period in which we had a king or secular government in Babylonia was not a long period, a few hundred years, and it ended. By the ninth century it was already gone—or even earlier. There was no king in Babylonia anymore. There were Geonim, there was still more or less a national structure, but there was no real secular government, I think. There was a court system, judicial autonomy, but no king. In the 10th, 11th, and 12th centuries they already began to disperse, they were not in Babylonia at all anymore, and the entire national structure disappeared. Gone. We are now a collection of communities scattered around the world, and therefore basically we no longer have any centralized governmental or judicial structure. So much so that the dynasty was simply cut off? What do you mean cut off? There was no king. Maybe they knew who was supposed to be king in terms of lineage, but you could not appoint him because we had no sovereignty. And this also does not contradict the verse. What contradicts the verse? What contradicts the verse? “The scepter shall not depart from Judah.” “The scepter shall not depart from Judah” means that once there is a king he has to be from Judah. It does not mean that we will always have a king. As far as our obligation goes, we have to appoint a king from Judah, and in the future too there will be a king from the house of David and so on. It does not mean there cannot be an interruption, that we cannot be punished. The Torah itself speaks about exile, what will happen in exile. In exile apparently there will not be a king.

In any case, the claim is that aside from those few hundred years in Babylonia, basically we have already been living for 2,500 years without monarchy. There is no secular government in the Jewish people. There was a period under the Hasmoneans too when secular government returned—not from the house of David, by the way, but from the tribe of Levi—and Nachmanides says that this too was the sin of the Hasmoneans, that they took kingship for themselves even though they were not from the house of David. And there too there was some brief flash of Jewish monarchy, which very quickly became corrupt and Hellenized and so on. And that was it. So for 2,500 years, with a few hundred years in Babylonia under the Exilarch, beyond that we have lived 2,500 years without monarchy. And living without monarchy means that all secular powers, the powers of the king, basically flow into halakhic authority. Now at some point we lost halakhic authority too. There is no Sanhedrin, there are no ordained sages. What remains? Halakhic decisors, local courts in different communities, and halakhic decisors. What kinds of questions get directed to them? The same questions that would have been directed to the Sanhedrin and whoever came before. In other words, people started directing to the courts and the halakhic decisors all kinds of questions in areas that are not at all areas of Jewish law.

For example, in the 11th century a discussion started to arise over the question of how to run a community. As I explained earlier, until the 9th–10th century there was basically a national structure in Babylonia. It was not built out of communities. It was a national structure under which there were of course various cities and communities and villages and everything, but there was one central government under which all these existed. There was a clear hierarchy. After the whole thing dispersed, isolated communities were created, not under any umbrella of a Jewish governmental-judicial hierarchy. They were living inside some Gentile state or whatever, but the community stands on its own. There is nothing above them; they look upward and see nobody. There is nothing above them. And then a huge number of questions arose: how do you run such an isolated community? Once, if such a community had disagreements, no problem: you send a question to the chief rabbi, to the Babylonian Gaon, to the Sanhedrin, to whoever, and they tell you what to do. Or to the king in a very ancient period and he tells you what to do. But once above you there are no longer the Geonim of Babylonia and the central sages, no longer a centralized national structure with a clear hierarchy—what do you do? You ask the local rabbi, you appoint a rabbi for the place and ask him, the local authority. What kinds of questions do you ask him? Also the questions you would ask the king. For instance, there arose the question of how decisions are made among the seven good men of the city. The seven good men of the city are the municipality, the city council. Okay? Now they want to decide how to collect taxes, which synagogue to establish, where to establish it, whether to build a wall, all sorts of things of that kind. Whom did they ask? The rabbi, right? And then every regulation that is purely secular and has nothing to do with Jewish law—how to distribute taxes, how to build public institutions, schools, all kinds of things like that—the questions were directed to the rabbi. And of course if you ask the rabbi, the rabbi answers. And then responsa start discussing all kinds of questions of this sort that have no halakhic basis whatsoever. But there is simply no one else to ask, because there is no king, no secular ruler to ask how to distribute taxes, how to run the city, how to build public buildings, schools, what to do with people who do not listen to us, all kinds of things like that. There is no one to ask, so you ask the rabbi. And if not the rabbi, then the famous decisor in that region; they send the question to him. It doesn’t matter, but the hierarchy to which people turn is the halakhic hierarchy.

So for example the question arises there whether the decision among the seven good men of the city is determined by majority. There are disagreements among the city notables—four against three, five against two—the seven good men of the city, usually seven. Okay? How is it decided? So there was a major dispute. It was not obvious that one follows the majority. It could be that unanimity is required. Who says we follow the majority? The view of Rabbeinu Tam, for example: unanimity. No majority. But most of the medieval authorities do not agree with him. The Rosh and the Rashba and the Or Zaru’a do not agree with him. They say that the majority decides. Meaning, this discussion is taking place with no real halakhic basis. How would you decide how, what majority determines things in a city council? There is no concept like that. I have a verse talking about a court; what does that have to do with a city council now? As we said, like in Poland, what happens when there is no king? The president of the Sanhedrin has to take on the king’s roles. Yes, but if he is expert in local politics and there are… Not only expert—he says what seems reasonable to him. If it seems reasonable to him that they should go by the majority, he will tell them they should go by the majority. And when you read, for example, the responsa of the sages of that period, and afterward the Rosh and Rashba and all of them, it is very interesting, because the same pattern repeats itself with all of them. Suppose they ask them this issue—I checked this once—whether one follows the majority. Then in a number of responsa you can see an answer like this: of course we follow the majority, because it is written “follow the majority,” and besides, it is impossible to function without it. Because if you do not follow the majority, that means you are basically giving the minority a veto, and you cannot pass any decision like that; you cannot conduct life if you do not follow the majority. So they say first of all, it is written “follow the majority,” and besides, it is impossible to function without it. Why do they need the “besides”? It says “follow the majority,” everything is fine, what is the problem? There is a verse. So what does “it’s impossible to function without it” matter? What, do you say: why do we need Grace after Meals? Because it says we need Grace after Meals, and besides, it is very nice to bless the Holy One, blessed be He, for having given us food. There is a positive commandment to recite Grace after Meals, that’s it, go home. Why do I need to tell you stories about how good it is and how useful it is?

They understood too, exactly as Rabbeinu Tam understood, that from the verse “follow the majority” you cannot derive that one should follow the majority in a city council. That verse is talking about a court, not a city council. How do you derive from there that a city council follows the majority? A city council is not run according to Jewish law at all. What, how is it even relevant to derive from that verse the mode of operation of a city council? I think maybe last semester I spoke about the fact that there is a substantive difference between majority in a court and a democratic majority. Yes, that too is a common mistake.

You know Plato’s proposal of rule by philosophers. Instead of democracy, basically let the wise people decide. Because that way you’ll get better decisions, instead of all the idiots making votes and decisions, let a few wise people decide and things will turn out much better. That was Plato’s claim. Want to be very democratic? Fine, hold elections, but weight each person by his IQ and give everyone that weight. Why is that not right—or why is it not inappropriate to act that way? You ask that question: who asked you why it isn’t right? It sounds logical, no? Okay, yes, right? Okay, here’s a first answer: who says you can determine who is wise? The fact that he is a professor of mathematics means he knows how to run a state better? Who says? Usually it would be worse. So you cannot determine who is wise. That is one answer. Second answer: it is something you cannot quantify. Fine, another branch of what we said before. You cannot determine who is wise here. Quantify. But this creates inequality—but that is a moral consideration, not a utilitarian one. No, it is not a moral issue; it is a state issue, a practical issue. No, I’m saying for example that it promotes inequality—that is not a consideration of utility but a moral consideration, but morality is… Like medical experts determine what happens in medicine, let policy experts determine what happens in policy. Yes, and still, it will not work. No, but that is exactly what I’m saying: let experts decide. There’s one little problem: unlike the exact sciences, where everything works according to clear general laws that I can roughly… But you’re returning to the question: who is wise? You say: who says there are wise people who know how to run this better than others? So that is really part of what Aharon said earlier. Basically there is the pragmatic side, there are things in the political system. Fine, you are going back to his argument. So you cannot determine who is wise. There is another argument, a matter of authority: if you do not ask everyone, then part of the people can say—but that goes back to the same claim. Yes, let them say it—tell them to say yes, let the wise decide. Why? We all want good decisions, no? There is another problem: maybe the wise will misuse this. Who says the interest they will care for is all of ours? Maybe they will care for their own interests. I do not necessarily trust the integrity of wise people. I need to choose people who are wise and honest, and who will remain honest after receiving the authority to run the state. So therefore, okay, therefore usually these two explanations are given. One explanation is: who knows who is wise, what wisdom is relevant to running a state. The second is that even if you could assess their wisdom, you cannot trust their integrity. But I claim both explanations are unnecessary because the question itself does not exist. You do not need explanations.

Both explanations basically assume that if I solved the problem—if I found wise, righteous, honest people, as Moses said, and Jethro and everyone agreed that they are the wise and the upright and everything is fine—then yes, one should give them authority? Presumably yes, according to these explanations. Right? That is what Jethro says to Moses: find capable men, haters of gain, and so on. You know the joke about Rabbi Maimon, that when the state was established they wanted to establish the Sanhedrin. They asked: where will you find capable men who hate gain? He said: for a modest fee I’ll find even that. The point of these two answers in the end is that basically Plato is right, only practically it cannot be implemented. I claim Plato is not right in principle. There is no question here. What do you mean? What about the Sanhedrin? The Sanhedrin makes halakhic decisions. That is exactly the distinction I want to make now. In a second.

What I want to claim is that majority in a democracy is not intended at all to achieve the best result. That is a conceptual mistake. Do you really think the idea of majority rule was invented because that is the best way to reach the best decisions? Usually the majority is wrong, until proven otherwise. The minority is right. Meaning, the principle of majority rule is not at all a cognitive principle; it is a moral principle. The majority is not meant to achieve the best result, because if it were, then Plato would be right. Let the wise decide and you’ll get a better result. I follow the majority because ultimately I come from a moral, liberal standpoint—whatever you want to call it—that people have the right to determine their own fate. No one is supposed to determine my fate for me. If I want to authorize someone, no problem, but the authority is mine. I can appoint someone whom I regard as wise and say okay, do it for me, in my name—that is perfectly fine. But I need to determine that, and he does not receive it just because he is wise; he needs permission from me. Why? Because every person has the right to participate in determining his fate, in determining the policy of the state in which he is a citizen. That is the conception, that is the basis of the democratic conception. So what does that have to do with rule by philosophers and rule by the wise and all that nonsense? You do not need excuses; the question itself is wrong. You are telling me to replace majority with the wise because you assume the purpose of majority is to reach the best results. But it isn’t. The purpose of majority is to express what the public wants. That’s all. And democracy functions not in the best possible way, but in the way the public wants. That is the definition of democracy. If the public wants to be governed badly, that is their problem; that is what they want. Maybe democracy is the least… could be, you can argue about that. But the assumption of democratic government is not a cognitive assumption. It is not an assumption that this is how you get the best result—the best result meaning the most correct decisions. Maybe it is the best result in a moral sense. The best result in the sense that it truly expresses what the public wants and the state does what the public decided. If the public wants what is best for it, then let it say so. It has to say what it wants. No one else gets to decide for it what it wants. No problem, it can say “I want these three wise men to run everything.” Excellent—if the public says that, then fine. But the public has to say it. The fact that they are wise does not give them the right to govern us.

Fine, unless we are talking about someone already in a state where he has no discretion at all—mentally incompetent, a minor, an imbecile, things like that. Those are extreme cases. For ordinary citizens, more intelligent, less intelligent, more expert, less expert—it does not matter. People have the right to run their lives. That is the assumption of democracy. And therefore Plato’s question does not arise; no excuses are needed. The question is simply incorrect in relation to democracy. If you do not accept democracy, fine. But if you do accept the democratic premise, then Plato’s question of rule by the wise simply does not arise. No excuses needed. So what is confusing here? What happens in a court that follows the majority? Why do they follow the majority? “Follow the majority.” The Sefer HaChinukh says that usually the majority is more likely to hit the truth. And therefore the Sefer HaChinukh indeed says that if the minority is much wiser than the majority, then one does not follow the majority; one follows the majority of wisdom, not the majority of people. Fine, assuming everyone agrees that he is wiser than the two who disagree with him. Fine, and they agree to that too. Okay? So the Sefer HaChinukh says explicitly—and there are other medieval and later authorities who say this too—that where there is a very wise minority and a less wise majority, the Jewish law follows the minority, not the majority. Because the determining majority is the majority of wisdom, not the majority of people. Some explain the dispute between the House of Shammai and the House of Hillel this way. The House of Shammai were sharper, and the House of Hillel were less sharp than the House of Shammai but they were more numerous. So the House of Shammai did not agree to accept the ruling like the House of Hillel because they said that the majority that determines is the majority of wisdom; you don’t count heads, and not legs. What do I care how many legs are against me? What matters is how many heads are against me. Okay?

Now if that is really so, then what does it mean? It means there is a substantive difference between majority in a court and majority in a city council, a democratic majority. Majority in a court is a tool to get to the truth. Majority in a city council is simply the expression of what the public wants. Not because that is the truth. It is simply the metric. By the way, there is Shmuel Nitzan here from economics, he once wrote a book; I once did some conference with him here, “Nitzotzot,” or we both spoke on this subject. He wrote a book published by the Open University, actually a very interesting book on mathematical economics. And there he discusses how the democratic conception is that the state should conduct itself according to what the public wants. Now how do you know what the public wants? There are different views, all kinds—how do you determine what the public wants? So usually it is accepted to say that the majority represents it. I do not have anything better than that. I cannot go with everybody; there are disagreements. So people say fine, let the majority decide. The majority here decides not because it is more important than the minority but because it is the best representation we have of the view of the entire public. Because when you ask what the public wants and you want one answer—not everyone wants his own thing, that doesn’t help me make a decision. So if you want one answer, majority is the first approximation.

He raises there, for example, many other possibilities. You could represent what the public wants differently. For example, if the issue matters a great deal to the minority but the majority… and things like that. By the way there is a very interesting theorem, called Arrow’s theorem. Arrow establishes there rules for how we can define a function representing what the public wants when there is a distribution of opinions. If I remember correctly there are five criteria that this function has to satisfy. Arrow’s theorem says there is no solution. There is no function that satisfies all five conditions. They contradict one another, meaning you cannot arrive at a solution satisfying all five conditions. The conditions? I don’t remember anymore, it is in his book. So it is very interesting; there is also a proof there of this theorem, a theorem in mathematics. In other words, there is a problem in how to represent what the public wants when there are disagreements. Fine, democracies chose the simple and natural solution: majority. The majority, for me, is what the public wants. It is the first approximation, the simplest, the most basic, and it makes sense, yes? People generally accept that the majority represents the public’s view—what the public wants.

So that means the majority in democracy is not a tool for knowing what is true, as the Sefer HaChinukh explains regarding majority in a court, but for knowing what the public wants. Now if the verse says “follow the majority,” and it tells me: listen, go after the majority because the majority usually reaches the truth, or is more likely to reach the truth, how can you derive from this the idea of following the majority in democratic contexts? What does that have to do with it? There the question is what the public wants, not how you reach the truth. Therefore indeed the Rosh and the Rashba and the Or Zaru’a and all the respondents I mentioned earlier say: it is written “follow the majority,” and besides, it is impossible otherwise. Because they understand—even Rabbeinu Tam, who says entirely that one does not follow the majority in city-council decisions—why? I have no source. What do you want me to do? There is no authority by virtue of which the majority can coerce the minority. There is none, impossible, so only unanimous decisions. The other medieval authorities say against Rabbeinu Tam: in principle you are right. You cannot derive it from the verse “follow the majority,” even though they themselves cite that verse. And therefore they always add, “and besides, it is impossible to function otherwise.” Because they understand that the verse by itself is not really a source for the need to follow the majority in a democratic majority. And therefore they say: it is obvious to us that we are expanding the meaning of the verse greatly, simply because it is impossible to function otherwise. What does that mean? That the decision that one should follow the majority is simply a reasonable political decision, based on logic, and it does not emerge from halakhic sources. Jewish law has nothing to say about the matter. So why was this question directed to halakhic decisors? Why are there so many responsa dealing with this question? Because there was no one else to ask. There was no one else to ask.

There was no secular governmental authority in the Jewish people. There were halakhic decisors. At first the Sanhedrin, and after that it dispersed. The Exilarch, and halakhic decisors in different places, in different communities, local authorities in various places, and that was it. There was no one else to ask. So whom did they ask? Like in Poland, if you have no government you go to the Supreme Court. If you have no king, you go to the president of the Sanhedrin. If you have neither, you go to the local authority and ask the rabbi. And so in fact a Jewish law developed, by the way, that any city ordinance does not receive validity unless an important person agrees to it. And “important person,” according to most halakhic decisors, means the important decisor in that place, or the local authority, or the important decisor in that place. Where did that come from? Out of thin air. “The custom of the district is considered as one sees fit.” Even today? Yes. Even today, by the way, there is a claim that decisions of the Knesset are valid because the Chief Rabbinate agreed. I don’t know whether to laugh or cry when I hear that nonsense. But they continue the same mode of thinking. Why? Because Jewish law became so accustomed to things being run that way, that everything must be run under the wings of Jewish law. Everything must be run under the halakhic decisor, under the court, because there is no other authority. We have been without secular authority for 2,500 years. So automatically all questions go there.

Now suddenly—I mentioned that in the Shulchan Arukh, section 2 in Choshen Mishpat, section 2, there appears a law—not suddenly, it already appears in the Gemara—that a court administers lashes and punishments not according to the law. A court that sees the need of the hour may strike someone. I mentioned that yes, the Rif and the Rosh cut off even the nose of an adulterous woman and all sorts of things like that. They gave punishments there that they had no authority to give. Why? Because a court administers lashes and punishments not according to the law. Court meaning a court recognized as the leading court of the generation, whatever, but yes: a court not formally authorized, they are not ordained, they are not the Sanhedrin, and they can give corporal punishment—but yes, they did it. Why? Because a court—and this law appears in the Shulchan Arukh, meaning it also applies in our own time. I mentioned this last time: it is not only a law for courts of ordained judges, because otherwise it would not appear in the Shulchan Arukh. The Shulchan Arukh deals with laws that apply, only laws that apply in our own time, unlike Maimonides. The rule that a court administers lashes and punishments not according to the law appears in the Tur and in the Shulchan Arukh. They took the authority for themselves but actually did it? Wait, I’ll explain. Where does that authority come from? I do not know a source for it—where is the source? From the king. Obviously it is from the king. Originally it is the king’s function to administer punishment not according to the law. That is Rabbi Nissim of Gerona’s homilies. Rabbi Nissim of Gerona says the king is not subject to Torah law. He conducts himself according to the law that he establishes. This is called administering punishment not according to the law.

When the king sees, for example, let’s say the king would see that robbers have become numerous. Now you know that in Jewish law there is no punishment for a robber. What does a robber do? He returns the stolen object. That’s it. No punishment. So you understand that does not deter a robber. Why? I rob you, at most they catch me and I return it to you. What did I lose? If they don’t catch me, I profited. If they do catch me, I lost nothing. It is a gamble with only upside. Something like that cannot deter robbers. Now what happens if suddenly there is a plague of robbers? The court always says to the robber: return the stolen object. The robbers understood the principle; now every violent person will rob. The king would intervene and cut off his head. Not according to Jewish law. He administers lashes and punishment not according to the law in order to uphold the religion, as Maimonides writes, as the Gemara says. The king also ensures that people do not commit halakhic transgressions, but of course he does so with his own tools. Not with lashes and execution requiring warnings and witnesses and all those things that are totally ineffective. The king does what he understands is necessary. Not arbitrarily, but what is necessary. This is the law of the kingdom. There is a king in the Torah, the passage about appointing a king, right? It does not need to be spelled out; that is called king. What is a king? Among all nations, what is a king? A king is the one whose government determines the laws and enforces them. It doesn’t matter—today it is a different kind of government, so what? A king is government. The king who will come in the future, when the king returns, I don’t know, the messianic king—there are claims saying this will be a democratic government. Monarchy is just another word for government. Back then there was no democracy; today there is democracy. Fine, it may be that the government of the messianic king will be democratic. That does not matter. But sovereign government of the Jewish people will return. What form it will take, whether exactly a king or not a king—that is what was called government in the ancient language, because all government was always in the hands of a king. There was no other form of government. When people spoke about a king they meant government; kingship means government. Now today there is a different government, so what? Nothing happened. That is all fine. That is the king; there will be a democratic king, not a monarchic king. Okay?

Therefore, for example, when people today try to derive the proper attitude toward elected officials from the attitude spoken of toward a king—that is nonsense. A ridiculous anachronism. If you did something to the king, he’d cut off your head. In democratic government today there is no authority to do such a thing. All those laws that we take from the Gemara or other sources that dealt with the question of how to relate to a king are irrelevant. Am I allowed to laugh at the prime minister? To write jokes about him in the newspaper? About a king it was forbidden. Obviously I’m allowed. That is part of democratic government. Democratic government is defined by the public. And Jewish law can regard the government as it is defined by the public as kingship. It gives it authority. And it does not obligate me to something beyond what the government itself obligates. Yes, for example there are those who are extremely careful: if a road allows 90 km/h, they drive exactly 90. Now a reasonable person drives 100 too, right? That’s how it is. Okay? Oh no, but halakhically there is the law of the kingdom, so you must drive 90. Nonsense. The law of the kingdom does not add anything beyond what democracy obligates me. Democracy obligates me, and the law of the kingdom says this is recognized halakhically too. But once it becomes “Jewish law,” people treat it as though it is a clause in the Shulchan Arukh. It is not a clause in the Shulchan Arukh. Look at it through the lenses of a normal, normative citizen, how he behaves, and Jewish law says you must do that. But Jewish law does not add beyond what democratic citizenship obligates us. It only says: you are required to do this halakhically as well. Therefore there is no point in taking this law of the kingdom and turning it into more than what political theory, political thought, yes, obligates. Whatever it says, that is all, except that it has a halakhic stamp of approval. Okay?

In any case, for our purposes the claim is that we got used to this. We got used to the fact that halakhic decisors basically rule in all areas, including secular areas. And then what happens? The court administers lashes and punishment not according to the law. What did I ask—where was the source for this? From the king. Once it was the king who punished not according to the law, and at a certain stage there was no monarchy, the powers flowed into the court, and so the court punished not according to the law. And that is how suddenly it rolled into the Shulchan Arukh, because this is actually a law that applies even in our own time; it does not even need to be a court of ordained judges. Why? Because the authority that exists today is a court of non-ordained judges. What can you do? Somebody has to run things here. So a court of non-ordained judges administers lashes and punishments not according to the law too.

Now when Maimonides says that a court is permitted to suspend laws, and he ties this to the authority of a court to punish and administer lashes not according to the law, what court is he talking about? Any court, including a court in our own time. Because in Maimonides, the fact that a law appears in Maimonides proves nothing. In Maimonides there are also laws that only applied then and do not apply today. In the Shulchan Arukh, if a law appears there, that means it applies even today. And the law that a court administers lashes and punishments not according to the law appears in the Shulchan Arukh and in the Tur. And Maimonides compares the ability to suspend laws—the fact that a court can suspend laws—to this rule that a court administers lashes and punishments not according to the law. So if this exists for courts in our own day, for any court, then the authority to suspend laws exists today too.

And if so, we have a very far-reaching conclusion. This conclusion basically says that a court can suspend laws. A court today can suspend laws. So where did I ask—after all, I started this whole story because we were talking about the fact that there are changes in Jewish law and one can make changes, with swimsuits and everything we discussed there, if there is conservative exegesis and all these matters. But then we got stuck with the question of authority, because we have no Sanhedrin, and one court cannot nullify the words of another court in rabbinic matters unless it is greater in wisdom and in number; for Torah matters it needs to be the Great Court, even if it is not greater in wisdom and in number. But today we do not have the Great Court at all, neither great nor small. So how can laws be changed at all? So that becomes a dead letter. Everything we learned up till now is basically a dead letter. Theoretically laws can be changed; practically it is not practical because there is no Sanhedrin. The answer is: not true, it is practical. Because if there were today a court—if there were a central court recognized by the public at large and an important court, not the Great Court in the sense of the Sanhedrin, but the prominent court, the Torah scholars, the great people of the generation—if there were such an institution today, or if there were a consensus among the sages, it does not matter at the moment, but a consensus recognized as something that really holds the majority in number and structure, then it could make decisions and change the Jewish law. But it could only suspend the existing law, not uproot it. To suspend means that for the time being we say this law is not to be implemented. We are not saying it is nullified; we are not going against the previous court, and therefore we do not need to be greater in wisdom and number because we are not going against the previous court. That is what I explained regarding Laws 1 and 2. But to suspend we can do, because suspension says something about our generation; it says nothing about them. They were perfectly fine; I do not disagree with them. And I say to our generation: I am the court, and “you have only the court of your own days.” And the court of our day says: today do not observe this law, I am suspending it. That can be done even by a court today. It does not need to be greater in wisdom and number, it does not need to be the Great Court, it does not need to be anything. What? First, because there is no such central authority, and second, because they did not read my book.

Second, why actually did the laws of rebelliousness remain? “Do not stray.” What? “Do not stray.” And that is indeed rebellion; one who disputes the Sanhedrin is liable to death. We talked about that, but this is with people, only with people. True, maybe they are mistaken—I did not say they are not mistaken. Then you are forbidden to disagree with them. Can you disagree with the Knesset? I can be appointed to the Knesset? Not appointed—can you disagree with the Knesset? As an ordinary citizen, yes. No—answer. As a citizen, can you disagree with them? I am asking yes or no, this is a yes/no question. Can you disagree with them? No. No. Can they be mistaken? Then why can’t you disagree with them? Still, because otherwise there would be no Knesset anymore. Not because there would be no Knesset; I’m talking when they do exist. You say if they can be mistaken then one can disagree with them, so I’m showing you that the Knesset can be mistaken and one still cannot disregard it. What I was trying to say is that when the Sanhedrin existed, fine, they can be mistaken, everyone can be mistaken, but we do not disagree with them because if there is a mistake they will fix the mistake, you can appeal to them. Maybe yes or no, but if I reach the conclusion that they do not fix the mistake and I disagree with them—what can I do? Then you submit… or petition the Sanhedrin and try to clarify it. I tried to clarify and they did not accept it, and you think they are still mistaken. Even then, on your own, you cannot do something against them. No? No. You have no other option. And even now, fine, I am saying it is no worse, but on the level of principle, the fact that they can be mistaken does not mean one may disagree with them. That is the whole difference between substantive authority and formal authority. Formal authority comes from the fact that you are the Sanhedrin, not from the fact that you cannot be mistaken, not from the fact that you are an expert. Therefore even if you are mistaken, you still have authority. That is their role. Torah. “Do not stray.” And we assume “do not stray” refers to them? Yes. The Torah says that. The elders at the gate, whatever, the Great Court. You can clarify your own view if you are not issuing rulings. That is a big question. If the Sanhedrin rules no, then no. As long as they say: I do not care what you do in your house. A rebellious elder may not issue rulings. But “do not stray” is not only the rebellious elder. The death penalty applies to the rebellious elder, but “do not stray” applies also to an ordinary person. You must obey what they say. If they tell you to do whatever you want, no problem.

You know, the utopia of some people is that when the messiah comes and the Sanhedrin returns, then all disputes will disappear and at last we will all have a uniform Jewish law and everyone will know what to do, everyone will do the same thing. In my eyes that is an apocalypse. When the Sanhedrin returns, they will force all of us to do only one thing no matter what we think. I’m fleeing to Australia if that happens. Or to France—arrange me a place there. My utopia is not like that. I think, I hope, I want to believe, that it will not be like that. When the Sanhedrin returns, there will be issues where they understand it cannot be left open. For example, people will not marry one another because this one eats this and that one does not eat that, I don’t know, all kinds of things like that. So okay, you know what, from now on everyone eats this. They will establish a halakhic ruling. But in places where there is no social need, why should they not leave each person to do what he understands? At least within some boundaries—let’s say he’s not doing something completely wild with no basis at all. Within some boundaries, why should the majority force its view on the minority? Let people each do what they think. Everything is fine. Like we do today. Every river follows its own course; everyone does what he understands. What is the problem? Is there some problem with that? No problem at all—on the contrary. A much more interesting, pleasant, and correct world. There is no reason to think the Sanhedrin would force all of us to do the same thing. In certain places where it is necessary because a problem arises, there they will impose. And that is it, that is their role, but not everywhere. Yes.

About your question: the king was the leader and the Sanhedrin? The king and the court—the secular government, and the court and the powers of the religious government. Today I do not… today too, meaning there is a secular government here after 2,500 years, but the secular government is the king. No, I do not see this secular government as a king. The state is not, in my eyes, a Jewish state. But you do not see this—this is a Jewish state with a secular government. It is a state of Jews, many Jews. Not all. A state of many Jews, that is true. I do not think it is a Jewish state in any meaningful sense. Therefore, for example, I do not think there is a commandment-war here to conquer the land. The entity obligated in a commandment-war is not present. The entity obligated in a commandment-war is the Jewish people as a whole. Whoever is fighting here is not the Jewish people as a whole. It is a collection of citizens who want to establish a state, most of them Jews, not all. They want to establish a state; they are fighting here; they are defending themselves, and that is perfectly fine, like any state in the world. A state has the right to defend itself. Everything is fine. But to put this into halakhic categories of commandment-war and helping Israel from the hand of an enemy and all kinds of things like that is, in my view, an intellectual joke. It is simply not correct.

But back then, when we had no secular authority, they would go to the Sanhedrin and they would issue rulings. Today it is definitely not like that. Of course it is not like that. There are Jews among the Gentiles too. Is Belgium or Zimbabwe a Jewish state? There are Jews living there. Is that a Jewish state? No. And still one has to obey the king. There is the law of the kingdom even among non-Jews. The law of the kingdom in Israel is not by virtue of the king of Israel; it is by virtue of the law of the kingdom as with non-Jews. Not that they are non-Jews—again, they are Jews—but I mean the authority is authority by virtue of the law of the kingdom among non-Jews: once there is a government, it has authority over the place so there will not be anarchy. Jewish law does not want there to be anarchy, so everywhere the king who rules has authority to determine things, and that is perfectly fine. Israeli law has halakhic validity. It has halakhic validity not because they are righteous and not because they are… Bibi is the king of Israel, contrary to Bibi worshipers, but simply because he rules here today by virtue of democratic authority, unfortunately, and that is that. He determines, what can you do. You do not need to assume for this that there is a Jewish state here. That is such a mistake—there are so many mistakes around this issue that I won’t even begin getting into it now.

Okay, in any case the claim in the end is that the possibility of suspending laws exists in our own time too. Bottom line, that is what I wanted to say. Okay, after all these detours. This means that practically all the things we learned until now about changing laws and updating laws and so on are actually relevant in our own time too. Relevant in our own time too. And questions of authority do not completely neutralize this, do not empty it of all content. Because one can suspend.

Now, until when do you suspend? And what is suspension? I described this last time. There is nothing more permanent than the temporary, you know. Once we suspend something for a year, it remains suspended all the time until… think of the ban of Rabbenu Gershom. The ban of Rabbenu Gershom was set, I don’t know, sometime in the 11th century, I don’t know, around then, for a thousand years. It was set for a thousand years. The thousand years have passed. Not a thousand. No, it was a thousand. Yes. It was set for a thousand years. Those thousand years have passed. No one even imagines abolishing the ban of Rabbenu Gershom. Apparently it should have nullified itself. Apparently. No, people just got used to it. No, what do you mean people got used to it? I’m speaking halakhically. Will the rabbinate today allow you to marry two women? No. Or to divorce a woman against her will? Why not? There is no ban of Rabbenu Gershom. I’ll tell you why: because what happens is that the sages of our time continue the ban of Rabbenu Gershom onward. What sanctity does Rabbenu Gershom have? He lived a thousand years ago, so what? He was not the Sanhedrin. He established for his time, and the sages of today establish for our time. And here, for example, is an example of something on which there is a very broad consensus among the sages, and therefore it truly receives force even today. And they continue the ban of Rabbenu Gershom and set aside Torah law, which permits a man to marry two women and permits a man to divorce a woman against her will. Maybe that is suspension? No, that is not suspension. Is that suspension? Unequivocally, that is suspension. Rabbenu Gershom suspended that law, and we cannot change it because we do not have a Sanhedrin. Fine? So we do not change it; we suspend it. So he suspended it for a thousand years. By the way, why did he specify that it was for a thousand years? Precisely because he wanted to say: I am only suspending it, I am not changing the law. In another thousand years sages will come, see the situation, and decide for themselves. They may continue the suspension, they may abolish it.

Has anyone said there was not enough authority to suspend? Who said there wasn’t? You see— all the sages agree. That was a thousand years ago; I don’t think it was possible to unite all the sages of the world. Why? You see that they did unite. They did not need to sit on email and correspond with one another. If everyone agrees de facto. How did everyone agree on the authority of the Talmud? In much earlier periods. And the ban of Rabbenu Gershom—not everyone agreed to it. Those who observed the ban, most Ashkenazi communities, and later it also entered Sephardic communities, agreed. Sephardim also agreed. Fine, doesn’t matter. That was the consensus when he established it. It was the consensus of the community that accepted it, the Ashkenazim. And can I suspend today for a community too? You can suspend. If they accept your authority, why not? It does not have to be for all of the Jewish people. It is for the public with regard to which you are considered the central authority. No problem. If they do not see any authority above you, and everyone agrees that you are the greatest for them, it is like the Council of the Four Lands or Napoleon’s Sanhedrin. Where did their authority come from? It was not for the whole world, but for those countries where it applied, it was recognized as the central authority. And it also got some stamp of approval from the Gentile government. So they received authority, they enacted ordinances, they imposed decrees, they did all kinds of things like that, and it was valid for those countries for which that was the great court. Other countries, no. At some stage other countries joined it, and then they too accepted it upon themselves.

And today too one can suspend a law? Of course, one can suspend. What, I don’t know, like preserving Jewish law from their point of view? What does preserving Jewish law have to do with it? If he does it for a genuine need, then yes. And if he is just talking nonsense, then fine, he will answer for that in the heavenly court, for talking nonsense. He probably has a few other things there to answer for too. Sure. Anyone can do anything; the question is whether it is justified or not, and that the Holy One, blessed be He, will decide, you know. But today we have no body that can really punish someone who acts unlawfully. If… if there were a Sanhedrin, for example, and someone did something like this, perhaps they would—I hope they would—put him in his place.

Now I just want to go over a few more mechanisms that arise in the halakhic decisors for changing laws in our own time in a way that bypasses the problems of authority—not the law of authority. So we talked about suspension and temporary uprooting. That we discussed; there are sources for it in the Gemara, I am not going to get into it. I’ll upload to Moodle, to the website, the article I wrote, quite a long article, on this issue of changing enactments in our day, with all the relevant mechanisms. I do not have time here to get into all the details. I want to finish this in this class; we have another half hour, so I want to finish it here. So I’ll bring a few more mechanisms that allow us to nullify laws.

There is a rule regarding Torah-level laws that one does not interpret the reason of the verse. Unlike some tannaim, we rule like Rabbi Judah against Rabbi Shimon, that one does not interpret the reason of the verse. What does “one does not interpret the reason of the verse” mean? Where the Torah says something, and we suggest that the Torah’s reason is such-and-such, and therefore in such-and-such circumstances the reason does not apply, so the law should change—you cannot do that. What in law today is called purposive interpretation. When you interpret the law according to its purposes and then, where those purposes are not relevant, you change it. For example, King Solomon. The Torah says: “He shall not multiply wives for himself, lest his heart turn away.” King Solomon said to himself: I will multiply and my heart will not turn away. I am righteous enough; I will multiply wives and my heart will not turn away. Is he allowed to multiply wives? Assuming he is right—let’s say he is right and indeed he was righteous and his heart would not turn away and everything is fine. No, it is forbidden to him, because one does not interpret the reason of the verse. That is the rule.

Now we won’t get into the question of why one does not interpret the reason of the verse; there is a lot to say about that too. Right, that’s with rabbinic law; I’m talking now about Torah law. So one does not interpret the reason of the verse. Now the Rosh in Bava Metzia on page 90 writes that where the reason is clear, one does interpret the reason of the verse. Meaning he apparently understands that the reason one does not interpret the reason of the verse is because it is not certain that that is really the reason. But in places where it is certain that this is the reason, then one does interpret the reason of the verse. That is what the Rosh claims.

With rabbinic enactments we saw, at least in Maimonides, that even if the reason is nullified, the enactment is not nullified. And the Ra’avad agrees with him too, only he claims that in order to nullify—if the reason was nullified—then to nullify it any Great Court is enough; it does not need to be a court greater in wisdom and number, as Maimonides wants, but any Great Court can do it, according to the Ra’avad. Meaning, the fact that when I establish an enactment—sorry, establish a decree—and the reason for the decree is nullified, that does not mean the decree is nullified. A court has to nullify it. But the Rosh, in a responsum, writes that if the reason is clear, just as he said in his commentary on Bava Metzia 90 regarding the reason of the verse, in a responsum he writes this regarding the reason for decrees: where the reason is clear, then one can indeed nullify the decree. He says even without a court.

That is when the reason was correct but changed. For example, the Gemara says in tractate Sabbath, “One may not read by candlelight” on Sabbath. Why? The Gemara explains there: lest he tilt it. If you read by candlelight and the flame flickers or is unstable, you may want to adjust the flame. And that involves extinguishing or kindling, Sabbath prohibitions. Fine? Now Rabbi Ishmael said: I will read and I will not tilt it. Like King Solomon regarding multiplying wives. I will read and not tilt it. And he nearly tilted it, or elsewhere it says he actually tilted it, and this story appears in several places, and then he said: how great are the words of our Sages who said one may not read by candlelight lest he tilt it.

So Rabbi Akiva Eiger asks there, I think: how is that relevant, “I will read and I will not tilt it”? There is a rabbinic enactment; you cannot decide for yourself that you are exempt from it. After all, poultry with milk is prohibited out of concern that one might come to eat meat with milk. Can everyone just say…? Rabbi Akiva Eiger asks: how can such a thing be? There is a book—you know Chazut Kashot? It is basically three books that answer all the “requires investigation” notes of Rabbi Akiva Eiger. One of them is on the Gemara, one on the Mishnah, and another… there are three in responsa. The third is in responsa. All Rabbi Akiva Eiger’s “requires investigation” comments are treated in three different books. So on this he says that where the reason is written in the body of the enactment—“one may not read by candlelight lest he tilt it”—then the reason is clear; it is not a hidden reason. In such a case one can interpret the reason. And that is what Rabbi Ishmael said. Rabbi Ishmael said: I will read and not tilt it, because if it had only said “one may not read by candlelight,” and we know the reason is lest he tilt it, but the language of the enactment did not say “one may not read by candlelight lest he tilt it,” then it would be forbidden to you to read even if you think you will not come to tilt it. But if it is written in the language of the enactment, why did they write it? In most enactments they did not write the reason into the actual wording. They wrote it here to tell a person: here you can use purposive interpretation. If there is no concern that you will come to tilt it, then no—you may read by candlelight. Okay? And that is what Rabbi Ishmael thought.

The Chazut Kashot says there that Torah scholars are allowed to do this. If a Torah scholar estimates that in his own case it is not relevant, he may do it—that is his claim. So basically is there a side saying King Solomon did something okay there? King Solomon is Torah law; we are talking about enactments, but in principle it is the same idea. The same side exists in principle? Yes, in principle yes, because we see there that in that case it is written in the Torah. The Torah says: “He shall not multiply wives for himself, lest his heart turn away.” In contrast to all the other commandments where we can think about what the reason is, there the reason is written in the Torah itself. And therefore King Solomon allowed himself to transgress. And what happened in the end? They did indeed turn his heart away. What happened with Rabbi Ishmael? He indeed was about to tilt it, or actually tilted it.

Notice, what does Rabbi Ishmael say in the end? Rabbi Ishmael says: look, I was not okay, because really I should have understood that regardless of whether I would come to tilt it, I am forbidden to read by candlelight. He does not say that. He says: how great are the words of the Sages—look, even I almost came to tilt it. But if theoretically it is clear to you that you will not come to tilt it, he does not retract from that; you can read by candlelight. He says: my assessment of reality was incorrect. I see that the Sages assessed reality better than I did, that indeed a person reading by candlelight will come to tilt it. But he does not retract from the principled idea that if there really is a case where there is no concern, then I am allowed to read by candlelight. Therefore in Jewish law we indeed rule that if you place a guard over yourself, sit someone next to you and say pay attention to me so that I do not end up—I do not tilt the lamp—then it is permitted to read by candlelight. Because where there is no concern that you will come to tilt it, it is permitted. And it is entirely possible that this is where we learn it from. Okay?

What does that mean? That when the reason is written in the body of the enactment—or according to some views, even where the reason is completely clear, even if it is not written in the body of the enactment but it is completely clear that this is the reason—you can indeed use purposive interpretation. And this is not ruled? What? Why is this not ruled? Because with poultry and milk the reason is completely clear, that it is so we do not come to meat and milk. I don’t know, I don’t know. But in principle, if the reason is entirely clear and it does not apply, then first, it is not clear that that is the reason; and second, there is an assessment and it is not written there that this is the reason. And second, there are a few more things. It could be that it resembles meat and milk and there is actually that same problem of meat and milk here too. Not from the concern that one may come to it, but that this itself is problematic—just not at the level of Torah law but at a lower level. That is one thing. And second, you say that you won’t come to eat meat with milk, and then they did come to eat meat with milk. Most people would not come to eat meat with milk anyway. What changed between today and then? What about by candlelight? If a person… No, by candlelight it is a specific individual; it is not a change between periods. You want today to permit someone to eat poultry with milk because there is no concern that he will come to meat with milk—that was true back then too, and still they established not to eat poultry with milk for everyone. Fine? Meaning if you say that something changed today, that is another story. If you say that something changed today that was not present in reality then and is present in reality today, okay, one can hear that. But if you say “look, I won’t come to that,” then there were people back then too who told themselves “I won’t come to that,” and still they established it as a general enactment. So therefore it is harder to change it today. If some situation arose where there is no meat at all anymore, it no longer exists, then perhaps there really would be room to permit it.

You can formulate it differently: when the Gemara says “one may not read by candlelight lest he tilt it,” did it prohibit reading by candlelight, or did it prohibit entering a situation in which you might tilt it, and reading by candlelight is one example? A case. Basically the prohibition is that you should not enter a situation in which you might tilt it. There is no formal prohibition here on reading by candlelight. So there are situations in which either the reason is clear, and certainly where it is written explicitly—for example with the king. It says “He shall not multiply wives for himself, lest his heart turn away.” Is there a prohibition on multiplying wives? Apparently not. There is a prohibition on entering a state in which his heart will turn away. How does one do that? There are many ways. For example multiplying wives, multiplying horses, all kinds of things like that. Many things can turn the king’s heart away. The prohibition is on the turning of the heart, not on multiplying wives. Now if that is so, let’s say I multiply righteous wives for myself. They will not turn my heart away. Okay? If the prohibition were “he shall not multiply wives,” then it is forbidden to multiply wives even if they are righteous, because we do not interpret the reason of the verse. The Torah says “he shall not multiply wives,” so he shall not multiply wives. But if I say that what the Torah prohibited is not multiplying wives; what the Torah prohibited is entering a state in which the heart turns away—then when I multiply corrupt wives for myself, that may turn my heart away, so that is forbidden. But if I multiply righteous wives for myself—the thing prohibited is the turning away of the heart, and there is no turning away of the heart here—then it is permitted.

Notice that when I say such a thing, this is not even interpreting the reason of the verse. Interpreting the reason of the verse means that the Torah basically prohibited multiplying wives. But I make a conservative exegesis, exactly what I spoke about earlier. I say: why did the Torah prohibit multiplying wives? Because it will turn his heart away. So now I know, okay? Then I say: good, but today that will not turn my heart away, or in certain circumstances it will not turn my heart away, righteous women, and so it is permitted to multiply wives. That is called interpreting the reason of the verse—the conservative exegesis I referred to earlier. But if I say: the Torah did not prohibit multiplying wives at all. Multiplying wives is just an example. The Torah prohibited entering a state of heart-turning-away. That is what it prohibited. Now I multiply righteous wives for myself. Do I need to interpret the reason of the verse in order to permit this to myself? No. I did not violate anything at all. The prohibition is not on multiplying wives; the prohibition is on heart-turning-away. And there is no heart-turning-away here, so what is the problem?

The whole need to ask whether I do or do not interpret the reason of the verse only exists if I understand the prohibition as a prohibition on the act. Let’s say if the prohibition was not to enter a state where you might come to eat meat with milk. Regardless of poultry. Then in principle it would also be forbidden to eat soy with milk. Okay? Theoretically. Right? No, we apparently understand that they prohibited eating poultry with milk. The reason is lest one come to eat meat and milk. But they prohibited poultry with milk itself. Not the reason. The prohibition is the prohibition, not the reason. Okay? So because of that, once you want… then you cannot prohibit soy with milk, and you cannot permit poultry with milk where the reason does not exist, because what was prohibited was eating poultry with milk. What? Poultry with milk is rabbinic? Right. I’m moving here from Torah law to rabbinic law. I’m saying the same idea as in Torah law applies also in rabbinic law. Just as in Torah law, when the reason is written explicitly in the Torah, there is room to say that the prohibition is not on multiplying wives at all, it is a prohibition on heart-turning-away. And where there is heart-turning-away it is forbidden; where there isn’t, there isn’t. You do not need a court to permit it, you do not need to interpret the reason of the verse, you do not need anything—it is simply not forbidden. Because what was prohibited was the reason, not the thing itself. That is really what was prohibited—they prohibited heart-turning-away, not multiplying wives. Multiplying wives was only a way of telling you how one gets to heart-turning-away. That is all.

The same with poultry and milk: if they had said, do not enter a situation where there is concern you may eat meat with milk, then if there is no such concern I could eat poultry with milk. And there would be no need to say “the reason is gone so the enactment is gone,” and convene a court to cancel the enactment because the reason has gone. No. There is no prohibition at all. Because the prohibition from the outset was entering a situation where I might eat meat with milk. That is not present.

Another example: what if I reach the conclusion that the prohibition was built from the outset on a mistake? One does not kill a louse on Sabbath because it does not reproduce. Or because it comes from decay, or things like that. Now today we know that is not true. What happens there? I claim that there the law is null; no court is needed to nullify it. The law is null. Why? Because in a language there, that is not changing the law. Because if the Sages had known what we know today, they never would have prohibited it in the first place. The whole issue of changing laws speaks about a situation where once reality really was as the Sages understood it, and today it changed. Now if the reason is nullified, is the enactment nullified or not? That is the whole discussion we had up till now. What? Exactly. But there it was never true in the first place—they did not know that. And today we have better scientific knowledge, so we do know that. In such a case it is like a transaction made in error. The whole determination from the outset. Even so, maybe today science is mistaken, maybe all sorts of things like that, or maybe we do not have authority or we do—none of that is relevant. No authority is needed and nothing else. That law was mistaken from the start. In that case it is easier because it is to forbid, and even there the decisors do not agree. Because they are afraid of Reform. Yes, they are afraid of Reform. Everyone—well, almost everyone. There are some who really say that since it is a stringency, let us be stringent anyway. But I claim this both for leniency and stringency. Once reality turns out to have been mistaken from the outset—not that reality changed, but that from time immemorial it was always like that—if it was always like that and they just did not know, then the original determination was mistaken. So once again, no need to change it, no need to convene another court to change that law.

There is another mechanism that is important to understand. Some halakhic decisors say that when the reason is completely gone, never to return—not some change of reality that happened now in one place at one time, but the reason is completely gone—there are Tosafot and several other medieval authorities who say that in such a case the enactment does become nullified. If, say, there is no flesh-and-blood meat anymore, there is no such thing. Exactly. They moved to cultured meat, things like that. Then the enactment is nullified.

There is another mechanism: what about a concern. I wrote about this regarding legumes; afterward I wrote about the Rosh on my website. One of the first columns I wrote. I claim that legumes on Passover are nonsense from beginning to end. A few years ago I started eating legumes with great enjoyment. With enjoyment and provocatively. Why this whole thing? Because of the production process that did not exist then. I mean, from the start the point is this. First of all, it cannot be a binding enactment because there was no Sanhedrin in the Middle Ages. Only a Sanhedrin makes a binding enactment. That is one thing. Fine, maybe it is a custom. Fine, there is room to discuss that, but still, that already makes it not an enactment but a custom, and then we can discuss it. But I say more than that: it was not even a custom, it was a concern. What do I mean by concern? Suppose you are driving on a road and there is a pothole in the road. Fine? So everyone of course drives around the pothole; it’s life-threatening, you do not drive into a pothole, right? The municipality repaired the pothole. Do I now have to keep driving around the place all the time? Because this is what our ancestors did, this was the custom, they drove around it, so we will continue driving around it. No. Why not? Because from the outset it was not a prohibition, it was a concern. They did not establish that one must drive around it. People were afraid of falling in, so they drove around it. Fine, you can say that on Sabbath they established it as an enactment, you see. No, no, it was a concern. It appears as Jewish law, look at the wording. It appears as law, that is clear. The fact that the law is based on a concern is fine, but if they established it as binding law then they established it. But legumes were established at a time when there was no Sanhedrin. Who would establish this as law? There is no one who can establish it as law even if they wanted to. And they did not intend that either. There was concern that maybe grains of leaven or wheat would be mixed into those legumes. Fine, so they were concerned about that, excellent, all good. They were concerned in order not to stumble into the prohibition of leaven. But for me today, when I do not have that concern, why do I need to keep driving around the pothole? There is no pothole anymore. This is not a prohibition, it is a concern.

By the way, there are medieval authorities and Talmudic passages on these things. The enactment concerning the Chavrai—the Gemara in Beitzah. The Chavrai would force us to do labor on Sabbath, but on festivals somehow, I don’t know, they let us off. So the Sages said that we do not permit burying the dead on a festival, because the Chavrai will see that we are desecrating the festival and burying the dead, and then they will also force us to do labor. The Chavrai were some sort of ruling non-Jewish authority over us. Fine? What happens when there are no Chavrai? Do we continue not burying the dead on a festival? No. Tosafot says no. Why? But if the reason is nullified, is the enactment not still in force? No, because that was only a concern, not an enactment. They feared the Chavrai would kill us. No Chavrai, nothing.

This is the story about the Rebbe of Gur. Yes, the Rebbe of Gur—you know the joke about the Rebbe of Gur? The Rebbe of Gur comes to light Hanukkah candles. So he says to his attendant: do you see the broom here? Move it. He says: why move it? He says: because if I don’t move it, next year my Hasidim, before lighting candles, will put a broom next to the Hanukkah lamp and light the candles. Fine, the attendant says okay, I’ll move the broom. What happened the next year? The Hasidim put a broom there, moved it, and lit. But the joke is that everyone laughs at it, while in our lives we behave exactly that way in many things. Exactly the same.

And with snakes too we continue worrying where they don’t exist. Snakes, uncovered drinks—we worry about snakes. Snake venom. We don’t have snakes in the house here. Isn’t there an actual prohibition in the Shulchan Arukh itself? Of course, that is what the decisors write. In the Shulchan Arukh. But there is no longer that concern; it is a concern, not—I don’t know what. Fish and meat, for example. That is danger. Fine, danger—I asked doctors, they do not know of such dangers with fish and meat. Once it is danger and not prohibition, then it is only concern, not prohibition. A concern—what is the problem? If there is no concern, there is no concern. So is it permitted to eat fish and dairy utensils together? In my opinion yes. In Strasbourg they do not have the custom; I was with several families who do not eat fish with milk. There are those who go crazy and say they do not even eat actual milk with fish. There is some scribal error in the Beit Yosef there. Right, among Sephardim. There is some note in the Beit Yosef about fish with milk, and somehow everyone latched on to it. I once heard someone tell me that if you want to eat it, do annulment of vows now. Yes, that is the accepted practice. To do annulment of vows. Because if you treat it as a custom… No, even more than that. Even if it is a law. Because if it turns out that even then they were mistaken, then you do not even need annulment of vows. But I claim that even if not—if it turns out that even then they were mistaken and there was never really danger in fish and meat, that is what they thought but they were wrong—then it is like lice on Sabbath, and it is nullified. Even if that was law and not concern. And if it is concern, then all the more so. It is concern—fine, then I no longer have that concern. What was the concern with meat and fish in the first place? I have no idea. Some superstitions they had in their day. I don’t know. What I have read is that flies were very, very… there were all kinds of wasps getting in. Yes, you can find many superstitions. I have not researched the matter. But what—I do not know. Then people talk about spiritual dangers perhaps or all kinds of things like that. I don’t know, it sounds to me like ad hoc inventions. Any danger—if there is no danger, then no, it is not here. They are always afraid of Reform; that is the problem.

But what is interesting is that today this is something really striking: they say danger is more severe than prohibition, and so they become even more stringent in matters of danger, right? No, but when the concern exists, fine, I too favor being stringent when the concern exists. But being stringent when the concern does not exist because danger is more severe than prohibition? There is no danger, so what do you want to be stringent about? With meat and fish too it is much more severe than milk. Right. But again, everything begins with the question whether there really is danger. Because if there really is danger, then he is right that danger is treated more strictly than prohibition. The question is whether there really is danger.

There are situations—maybe one last thing I’ll say here—and this also relates to legumes. There are situations in which continuing the enactment creates a real desecration of God’s name, turns the whole system into a joke. In such a place too there is room to change the enactment. For example, on Passover in hotels. For example. Or in my view legumes are like that too. It makes a joke of the system. I don’t know, I feel embarrassed by it. Personally. I’m not talking about people looking from outside and saying what are these crazy people doing; it is like the Rebbe of Gur’s broom. In such a place as well there are sources—you can look afterward in the second article I think—there are sources in the medieval and later authorities saying that in such situations you can change the enactment without convening a court, and without being greater in wisdom and number of course, and all these things. In short, we have a great many possibilities, even in our own time, to bypass the question of authority. There are things that can be changed.

Okay, we’ll stop here. Next week is the last week? Yes, the last week. Why? There are exams. Say annulment of vows—where do you do that? How many people do you need? What? Annulment of vows, say about fish and milk—where do you do it? How many people? You go to a rabbi and he takes two other people and annuls your vow. Is that accepted? Yes, any three. If he agrees to annul it for you, because there are rabbis who will not annul your vow, because they think it is really forbidden. No. In short, in short, find roughly three people. Tell me, who do you want to start with?