Topics in Halakhic Thought – Lesson 20

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[Rabbi Michael Abraham] The supreme court of Jewish law, and even so—

[Speaker F] we can’t change it.

[Rabbi Michael Abraham] So I said that in the case of the Talmud, because the entire Jewish people accepted it upon themselves—and by the way, the Kesef Mishneh comments on this very Jewish law, Jewish law 2 that we just read—he says that regarding the Talmud, we accepted it upon ourselves, and therefore even though it was not the supreme court of Jewish law, the Talmud too has formal authority, something like “do not deviate.” But that’s where it ends. I spoke about the Rosh in tractate Sanhedrin, who discusses this at length and says that after the Talmud there are no authorities with that kind of power. This is also brought as practical Jewish law in the Shulchan Arukh, Choshen Mishpat, section 25. So for our purposes, the first point I want to make is this: if the Jewish law was not established by an authoritative institution like the Sanhedrin or the Talmud, then no authority is needed in order to change it. A Jewish law that is accepted because the Rashba said it, or Maimonides said it, or whoever, great halakhic decisors—that is not binding in that sense. If I think differently, I can change it; that is not called changing the Jewish law. And there are many such laws—actually, most of them are like this. Because most laws are simply not explicitly written in the Talmud; they are interpretations by medieval authorities (Rishonim) and later authorities (Acharonim) of the Talmud. And interpretations—I can disagree with interpretations. Once I disagree, then it’s not written in the Talmud; it’s an interpretation. I have interpretations too. Many things we think are straight Talmudic law are not necessarily straight Talmudic law, but rather interpretations given by medieval authorities (Rishonim) and later authorities (Acharonim) to what is written in the Talmud. To reject their interpretation and want to change it—that’s not possible, because the Talmud has authority. But if I disagree with them in interpretation and I claim that this is not what the Talmud says, that is not called changing the Jewish law. So that is the first authority-bypassing route. A second authority-bypassing route: what happens when the first court that established this law made a mistake? Maimonides speaks about a situation where we established a law and the reason changed. I’m saying—not that it changed, but that it was never correct in the first place. Suppose they were working from mistaken scientific information. In the example of our water, okay? “Water that stayed overnight.” It has to stay overnight because the sun travels above and below and all the Talmud’s ideas in tractate Pesachim. Today it’s clear that that’s not true. Does that law still stand? People say: what do you mean, this is Talmudic law, we have no authority to change it. Not true. In a place where the reason changed—that is, then it was correct and today reality changed—that is what Maimonides is saying here. But in a place where today it becomes clear to me that they simply acted on the basis of a mistake, it was never true, that is not called changing; it’s like a mistaken transaction. If I made a mistaken transaction with someone, I sold someone a certain object by mistake—does he have to sell it back to me after the mistake becomes clear? The transaction is void. There was never any transaction at all, because it was based on a mistake. It’s not that he has to return the object to me; he doesn’t have to return it—the object is mine. The transaction doesn’t exist because it was based on a mistake. Same thing here: if the Sages established something and the rationale, the reason for the decree, was correct and then changed—that is what Maimonides says here—you need a court greater in wisdom and number in order to change it. Even that is not universally agreed upon, but that is Maimonides’ position. But where today it becomes clear to me—for example through scientific tools—that the reason was never correct and they simply erred, that is not called changing the Jewish law. It’s a mistaken transaction; it is void from the outset. It was never true. They only thought it was true. For example, lice, which supposedly do not reproduce sexually and therefore may be killed on the Sabbath. That’s a scientific error of the Sages. Now if I say that it is forbidden to kill them on the Sabbath, have I changed the Jewish law? In this case it’s a stricter ruling, so it’s easier to make that move, but suppose it were a leniency—so what? That still would not be called changing the Jewish law; it simply turns out that the Jewish law was never really that way to begin with. The Sages were mistaken. For example, one may desecrate the Sabbath for an eye condition—for saving an eye. Even though this is not life-threatening in the ordinary sense, and for an ordinary limb one does not desecrate the Sabbath on the Torah level just to save a limb. But for the eye, yes. There is a dispute between Rashi and Rabbenu Tam why. One opinion is because a blind person is considered like dead; losing an eye is like losing life, and that counts as life-saving. The second opinion is because loss of an eye is life-threatening—it can cost you your life for physiological reasons. And suppose that today—and I think today this is indeed true—we know that that is not correct; in other words, it turns out to have been a medical-scientific mistake in this case. Then according to that view, it would be forbidden to desecrate the Sabbath to save the eye. Is it written in the Talmud that it is permitted? It is. It’s still a mistake. Meaning, there are things which, if they were mistaken from the outset—not that they were once true and reality changed—then from the outset there is no need to adopt them at all. It’s not a question of changing Jewish law. Look at Maimonides, for example. Maimonides consistently omits laws connected to the evil eye. A person may not stand over his fellow’s field when the grain is standing. Talmud in tractate Bava Batra, first chapter, page 6. Why? The Talmud says: because of the evil eye. You will not find this law in Maimonides. Also laws of hand-washing connected with an evil spirit and so on—you will not find them in Maimonides. Why? Does he disagree with the Talmud? What is interesting is that Rabbi Abraham son of Maimonides, his son, defends him. What does he say? Reality changed. Once it really was like that—there were demons, there was this—but today there aren’t. But that defense is self-defeating, because if reality changed, that puts us in the category of “the reason was nullified.” But when the reason is nullified, you need a court greater in wisdom and number in order to change it. You cannot change a law established in the Talmud even if the reason no longer applies. I argue that Maimonides says—and maybe Rabbi Abraham really agrees, only he’s uncomfortable saying it openly—that Maimonides is saying the Talmud was mistaken. There is no such thing as the evil eye, and no such influences, and no demons, and no spirits; it’s all nonsense. That became clear to him in light of the science of his time, the philosophy of his time—it doesn’t matter that they didn’t make that distinction. So the law written in the Talmud was not correct from the outset. Not that reality changed. In that situation there is no problem; Maimonides can omit that law, because he is not coming to change the Jewish law. He simply found that the law is based on a mistake, and it was never true. Only then they didn’t know it, and now he knows it. The defense his son offers is really an attack. The defense offered by Rabbi Abraham son of Maimonides actually strengthens the difficulty rather than answering it. Because he says reality changed—but if reality changed, that is exactly what Maimonides writes here: if the reason no longer applies, you still cannot nullify the enactment unless you are a court greater in wisdom and number. Maimonides cannot nullify a law that appears in the Talmud. But if you know that the reason was never right from the outset, was never right, then there is no problem; that is not called nullifying it. With some pressure I could defend Rabbi Abraham son of Maimonides and say that the relation to laws fixed in the Talmud is not the same as laws established by the Sanhedrin. Because there is no “do not deviate” regarding the Talmud; “do not deviate” applies only to the Sanhedrin and ordained judges. The Talmud was in Babylonia; there were no ordained judges in Babylonia, no Sanhedrin, nothing. So what is there? We accepted it upon ourselves. And in a place where it becomes clear to me that reality changed, there I can change the law of the Talmud, because this is not “do not deviate.” Everything Maimonides writes here is about “do not deviate.” Where there is “do not deviate,” then even if the reason no longer applies, there still has to be a court greater in wisdom and number. But regarding the Talmud, my inability to disagree with it does not stem from “do not deviate,” but from the fact that we accepted it upon ourselves. In that situation, it could be that even if the reason changed, that is enough for me to nullify the law—unlike a law established by the Sanhedrin, where even if the reason changed there still has to be a court greater in wisdom and number. None of this is written by Rabbi Abraham son of Maimonides; I haven’t found proof for it. Maybe it’s right, maybe not. Otherwise, what he says there is not a defensive argument but an attacking one. Just so you can see what I said earlier, I’ll bring you the Kesef Mishneh here on this Jewish law.

[Speaker D] Wait, this is on the previous law, not on Jewish law 1, I think. One second. Yes, here—it’s on Jewish law 1. He says like this: up to here he explains the difference between a Torah-level law and a rabbinic law. And here he begins. He says as follows:

[Rabbi Michael Abraham] “And if you say, if so, why don’t the Amoraim disagree with the Tannaim?” If every court can disagree with a previous court regarding Torah-level laws, then why don’t Amoraim disagree with Tannaim? “For everywhere we challenge an Amora from a Mishnah or a Baraita”—everywhere we object to an Amora from a Baraita or from the Mishnah—and if he has no answer, his words are rejected. He cannot say, “I disagree with the Mishnah or the Baraita.” He has to say, “I am speaking in accordance with that Tanna.” And if he does not say that, there is a difficulty against him. “And according to our master’s words, they have permission to disagree with the words of the Tannaim.” So why indeed don’t they disagree? And why don’t the medieval authorities (Rishonim) disagree with the Amoraim, and so on? “One can say,” says the Kesef Mishneh, “that from the day the Mishnah was sealed and finalized, they established and accepted that later generations would not disagree with earlier ones. And they did the same at the sealing of the Talmud—that from the day it was sealed, no person was given permission to disagree with it.”

[Speaker D] So what is he saying? That the authority of the Talmud does not come from the fact that it has divine inspiration and never makes mistakes. It’s authority from below. Authority from below.

[Rabbi Michael Abraham] Yes. We simply accepted their authority upon ourselves, and therefore we cannot disagree. It may be that they were great giants, irrelevant—still, that is not why one cannot disagree with them. One cannot disagree with them because we accepted them. But if so, then this is not “do not deviate.” “Do not deviate” is authority the Torah gives to the Sages, to the court. Here this is authority accepted from below. Okay? And then, as I said earlier, there may be a difference in the definitions of what can be changed and what cannot be changed. Now look at an interesting comment of the Raavad. I’m talking about the Raavad’s second gloss. The Raavad’s gloss: “must be greater in wisdom,” etc. “Abraham said: the ornamenting of the markets of Jerusalem with fruit is a difficulty against him, for the earlier ones instituted it, and Rabban Yohanan ben Zakkai nullified it after the destruction because the reason for the earlier ones had ceased, and he was not greater than the earlier ones.” There is a Talmud in tractate Beitzah about ornamenting the markets of Jerusalem with fruit, where Rabban Yohanan ben Zakkai canceled that enactment after the destruction because there was no longer pilgrimage to Jerusalem, so there was no reason to decorate the markets of Jerusalem. The reason ceased, and Rabban Yohanan ben Zakkai canceled the enactment. The Raavad says: this is difficult for Maimonides. Why? Because Maimonides basically said that you cannot nullify even if the reason ceased unless you are greater in wisdom and number. Yet here we see that you can. Rabban Yohanan ben Zakkai came later than they did, and still he nullified it once the reason ceased. Therefore the Raavad disagrees with Maimonides, and in his view if the reason ceased, one may nullify the enactment—but you still need a court; it does not need to be greater in wisdom and number. Like the Torah-level case—according to the Raavad, there is no difference between Jewish law 1 and Jewish law 2.

[Speaker G] Meaning, though, you still need a Sanhedrin.

[Rabbi Michael Abraham] Yes. A matter established by a quorum requires another quorum to permit it, apparently. On that point, at any rate, the Raavad does not write that he disagrees. Okay? At least when the reason has ceased. If the reason has not ceased, it may be that he accepts Maimonides’ answer, that you also need a court greater in wisdom and number. But notice an interesting point. What can Maimonides answer him?

[Speaker D] What would Maimonides answer to this difficulty from the Talmud?

[Rabbi Michael Abraham] He’ll say that Rabban Yohanan ben Zakkai was not smaller than them. What kind of question is that? He was greater than the earlier ones in wisdom and number. What sort of objection is this? Maimonides says you need a court greater in wisdom and number even if the reason ceased. The Raavad says back: but Rabban Yohanan ben Zakkai was later than the earlier ones, and the reason ceased, and he still nullified it. True, he was later—but greater than them. What is the Raavad assuming? That he was not greater.

[Speaker H] Based on what?

[Rabbi Michael Abraham] On the basis that the generations decline. Ah—he is assuming decline of the generations, right? But if that’s so, then I really don’t understand. Because if there is decline of the generations and it can never happen that a later generation is greater than an earlier one, then this law is a dead letter. Because how could a later court ever nullify a law established by an earlier court by being greater in wisdom and number, if by definition being later means it is not greater in wisdom and number? Then this law is meaningless. A law for messianic times, a theoretical law. Very strange. So in this respect the Raavad turns this law into a dead letter, and it does not seem that he disagrees with the law itself. If the reason has not ceased, then he too requires a court greater in wisdom and number. He only disagrees if the reason has ceased. But if the reason has not ceased, then how can the law ever be nullified? A later court is never greater in wisdom and number than an earlier one. So there are all kinds of suggestions—that perhaps Rabban Yohanan ben Zakkai was considered lesser, because it says “the least of them all was Rabban Yohanan ben Zakkai,” among the students of Hillel the Elder. The least of them all, Rabban Yohanan ben Zakkai—I don’t know, these are very forced answers. The Kesef Mishneh talks about this here, and other commentators too—very forced. But in any case, for Maimonides this is certainly no difficulty. Maimonides will say that Rabban Yohanan ben Zakkai regarded himself as greater than the earlier ones, and therefore he nullified it. And notice first of all one more thing we see here: decline of the generations is not an iron law. It is not always true that there is decline of the generations. There can be a situation where a later court is greater than an earlier court. Otherwise this law could never exist—that a later court should be greater in wisdom and number in order to nullify the words of its predecessors. Because there is no such thing as a later court greater in wisdom and number? Clearly there is such a thing. Okay, here we’ve finished Jewish law 2. We’ll go out for five—

[Speaker D] minutes and then we’ll come back afterward to continue.

[Rabbi Michael Abraham] To summarize the matter of Rabbi Akiva that we’ve been seeing over the last few weeks—there was a desire from many of the listeners to summarize this issue—let’s try, very briefly, to stand on the main points. Rabbi Akiva is the one who established for us the entire Oral Torah. The Talmud says in tractate Sanhedrin page 86: “An anonymous Mishnah is Rabbi Meir, an anonymous Tosefta is Rabbi Nehemiah, an anonymous Sifra is Rabbi Yehuda, an anonymous Sifrei is Rabbi Shimon, and all of them are according to Rabbi Akiva.” Meaning, the entire great structure of the Oral Torah, all of it comes from the root of Rabbi Akiva. Rabbi Akiva was the one who saved the Torah. After all his students died—twenty-four thousand students—he did not despair. He went and established five new students in the south, and they were the ones who rebuilt the Torah. All our Torah today is Rabbi Akiva’s. What was unique about Rabbi Akiva is that he saw in every single detail, in every tiny serif of a letter, an entire world of laws. He knew how to connect the details to the great whole, and his great principle was: “Love your fellow as yourself”—this is a great principle in the Torah. This is—

[Speaker D] the central point. We continue.

[Rabbi Michael Abraham] I’m moving on to Jewish law 3. “When does this apply? To matters that they did not prohibit in order to make a fence for the Torah, but rather like the other laws of the Torah. But matters which a court decreed and prohibited in order to make a fence for the Torah—if their prohibition spread throughout all Israel, another court cannot uproot them and permit them, even if it is greater than the earlier one.” There are major disputes about this—the question is exactly how you define a fence as opposed to an ordinary decree—but I’ll leave that aside for the moment; it’s less important for our purposes. Now, Jewish law 4 is very important for our purposes. “And the court may uproot even these matters temporarily”—those same things that were made as a fence and cannot be uprooted—even those can be uprooted temporarily, “even though it is smaller than the earlier one.” Meaning, a later court, which is smaller than the court that established this fence, can uproot it temporarily—for a period of time, temporarily. “For these decrees should not be more severe than the words of the Torah itself, for even words of the Torah may be uprooted by any court as a temporary ruling.” How so? “A court that saw a need to strengthen religion and make a fence so that the people would not violate words of Torah, may strike and punish not according to the formal law, but they may not establish the matter for generations and say that this is the Jewish law. Likewise, if they saw a temporary need to nullify a positive commandment or to transgress a prohibition in order to bring many people back to religion or to save many in Israel from stumbling in other matters, they act according to what the hour requires. Just as a physician amputates this one’s hand or foot so that the whole person may live, so too a court instructs at certain times 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 keep many Sabbaths.’” What is Maimonides saying? That if we are talking about uprooting temporarily—temporarily, a temporary suspension—then one may uproot both Torah-level laws and rabbinic laws, and even things made as a fence, which in the previous law he said cannot be changed at all. Why? He has proof—and the reasoning is an a fortiori argument. Obviously such decrees cannot be more severe than Torah law itself, and even Torah law a court can uproot temporarily—at least by passive omission, right? Therefore, he says, one may nullify this too. By the way, he says “to nullify a positive commandment or to transgress a prohibition,” meaning it is possible even by positive action to do this temporarily, okay? Because of considerations of whether the benefit outweighs the damage. Now I’ll stop this for a moment so I can see you too—I can’t see you when I share the screen.

[Speaker G] Just a second, I’m not clear. Passive omission—that’s Torah-level. Positive action, that too is possible on the Torah level?

[Rabbi Michael Abraham] Yes, if the nullification is temporary—not to abolish it completely, but a temporary freeze. Yes. That’s what Maimonides says here. Now the question is this: Maimonides’ reasoning is that even laws made as a fence can be temporarily nullified. What is his proof? That after all, even Torah-level laws can be temporarily nullified, and rabbinic laws cannot be more severe than Torah-level laws. I don’t understand. Jewish law 1 and Jewish law 2 that we read establish that the ability to change rabbinic law is much more limited than the ability to change Torah-level law. Changing rabbinic laws is harder than changing Torah-level laws. For rabbinic laws you need a court greater in wisdom and number, and for Torah-level laws you do not. So what kind of a fortiori argument is Maimonides making here one law later? Did he forget what he wrote two laws earlier?

[Speaker D] What kind of a fortiori argument is that? What do you say? If you remember, I offered two explanations—

[Rabbi Michael Abraham] for the difference Maimonides makes between Torah-level law and rabbinic law. One explanation was that the Sages strengthened their own words more than those of the Torah. According to that, what Maimonides writes here really is not understandable. If the Sages strengthened their own words more than those of the Torah, then maybe Torah law can be temporarily nullified, but rabbinic law cannot. So what sort of a fortiori argument is this? This is further proof that the interpretation I suggested earlier is the correct one. Why is it really that regarding Torah-level laws, any court can disagree with its predecessor, but regarding rabbinic laws only a court greater in wisdom and number can? So I said there: it is not because of severity, but because of the character of the law. If you disagree with their legislation—with a rabbinic law—then you are disagreeing with them themselves. If you are disagreeing with them themselves, you need to be greater than them in wisdom and number. But if you disagree with them in interpreting the Torah, in interpreting the Torah, then you are not really disagreeing with them. You are simply saying that the Torah does not say this, it says that. Therefore there, any court can do it; it does not need to be a court greater in wisdom and number. What happens in a temporary suspension? In a temporary suspension I am not disagreeing with them at all. There is an earlier law that exists, established by an earlier court. Now I see that a very great need has arisen and I must suspend that law, because otherwise people will go off the rails—I don’t know exactly why, okay? So I decide to nullify it temporarily. Am I disagreeing with the earlier court? Of course not. I am not claiming they were wrong. I am saying that right now, in the situation that has arisen here, I want to suspend it temporarily because right now I have a problem with it. For that you do not need to be greater in wisdom and number than the earlier court. You can do that because you are not disagreeing with them at all. I’ll say more than that: for this, not only do you not need to be greater in wisdom and number; any sage in any generation, or any court in any generation, can do this, even if it is not a Sanhedrin. What is my proof? I’ll tell you what my proof is. A very simple proof. I’m bringing back this law, sharing this law again, and look at what Maimonides explicitly writes. “How so?” Maimonides brings here the source for the idea that any court can temporarily suspend Torah-level laws. Where does he get it from? “A court that saw a need to strengthen religion and make a fence so that the people would not violate words of Torah may strike and punish not according to the law, and they may not establish the matter for generations and say that this is the Jewish law.” His proof is from the rule of “striking and punishing not according to the law.” About whom was this law said? Which court strikes and punishes not according to the law? Any court in any generation. Not the Sanhedrin. You do that as a court by virtue of your authority over the community you are appointed to govern. Because you are not disagreeing with the previous court. You are not saying: here we impose seventy lashes and not thirty-nine, or here I strike although one need not strike. This is called striking not according to the formal law. I strike not according to the formal law not because I disagree with an earlier court, but because I have governing authority over this community here, to maintain order. That authority belongs to every court in every generation. It does not need to be the supreme court of Jewish law; they do not need ordained judges, nor the supreme court of Jewish law. How do I know this? Simplest thing in the world. Do you know where this was ruled as practical Jewish law?

[Speaker I] Disciplinary lashes.

[Rabbi Michael Abraham] What? Disciplinary lashes are Talmudic law,

[Speaker I] but it’s basically disciplinary lashes. What they’re doing here is basically disciplinary lashes.

[Rabbi Michael Abraham] No, disciplinary lashes are according to the law. I’m talking about striking not according to the law. Striking not according to the law appears in Choshen Mishpat, section 2. I’m sharing. Section 2—the whole section: “A court may strike and punish for an emergency need.” “Any court, even if they are not ordained in the Land of Israel, if they see that the people are lax in transgressions, may judge regarding death, money, and every kind of punishment, even where there is no full testimony. And if he is violent”—we’re talking about a violent person—“they beat him by means of gentiles, and they have authority to confiscate and destroy his property as they see fit in order to fence the breaches of the generation.” Any court, even if they are not ordained in the Land of Israel. In every generation. The best proof of this is that this whole clause appears in the Shulchan Arukh. The Shulchan Arukh does not write laws that apply only to ordained judges. It writes only laws that are practiced in our times. It’s not like Maimonides. The Shulchan Arukh writes only laws that apply nowadays. And if it brings a whole section and devotes it to the fact that a court strikes and punishes not according to the law in order to repair the breaches of the generation, that means that in its view this is true in its own generation too. The sixteenth century. No ordained judges, no Sanhedrin. And why? Because this is governmental authority, not halakhic authority. This is how we maintain order. And for that you do not need ordained judges or the supreme court of Jewish law. So when Maimonides uses this as the source for the idea that any court can temporarily suspend laws of an earlier court, even if they were made as a fence, and this is his proof—

[Speaker C] what are they doing?

[Rabbi Michael Abraham] what does that mean? It means that any court in any generation can do this. A simple proof, right? Obviously that’s the case. And why? In light of the explanation I gave earlier of the difference between Jewish law 1 and Jewish law 2, this is very clear, because the later court here is not coming to disagree with the earlier court. The later court is simply coming to repair a breach that arose in its own generation, in its own place and time. And that is within its authority, even if it means overriding words of Torah. As long as it is not disagreeing with the earlier court, there are no such requirements. Anyone who is a recognized court and whom the public accepts can do this. This already goes very, very far in what Maimonides is writing here, but it is clear that that is what he is saying.

[Speaker H] According to this interpretation, why does he need an a fortiori argument at all? What? According to the interpretation you’re giving, he doesn’t need an a fortiori argument.

[Rabbi Michael Abraham] The a fortiori argument is what proves this interpretation—what do you mean?

[Speaker H] No, because you’re saying he isn’t disagreeing. The Rabbi is saying he isn’t disagreeing, so that’s it. If this court isn’t disagreeing, then he doesn’t need an a fortiori argument.

[Rabbi Michael Abraham] Who said this line of reasoning? Where does this reasoning come from? From an a fortiori argument. From the a fortiori argument he says, look: Torah-level laws, if I’m not disputing, I can change them even though I’m not greater in wisdom and number, so why not rabbinic laws? That’s exactly what he says. But what is actually written here? Notice that what’s written here is a bypass route around every authority in the universe, because what this really means is that if today I see a need to change a Torah-level law or a rabbinic law, I have no authority, I’m not the Great Court, I’m not the Sanhedrin, I’m nothing like that, but I see that there’s such a need, that this generation needs this change. I can declare a temporary suspension. I’m not ordained, not the Great Court, and I don’t need to be. A temporary suspension can be done by any court in any generation, just like a court may administer lashes and punishments not according to the strict law. There you go—all the arguments from authority against changes go down the drain, as long as there is a need for it, and that is the major limitation. Meaning, if I change something because I disagree with the previous court, I think it was wrong—then I cannot do that through a temporary suspension, because I’m not allowed to dispute them. I can, through a temporary suspension, do something if I see that it is required in order to fence off breaches that are arising today. That I can do. But to dispute them by a trick, as though I’m only making a temporary suspension—that’s just a trick, and I can’t do that, because in truth I’m forbidden to dispute them. I’m not playing games, I really want to understand what Jewish law says. Jewish law says I’m allowed to suspend temporarily; I’m forbidden to dispute. So if there’s a breach that requires it, I’ll suspend temporarily. For example, changing the law regarding women’s testimony. If I want to disagree with the Talmud—or not disagree, but to change the law that appears in the Talmud and validate women today as witnesses because in my opinion that’s what is correct today—according to Maimonides I cannot do that. It is indeed a Torah-level law, so I don’t need the Great Court in wisdom and number, but I do need a court, and today I have no Sanhedrin. So what do I do? I suspend it temporarily. But after all, I’m not making the claim here that this creates a problem for me today and therefore I’m changing it; I’m claiming that it needs to change in principle. That I cannot do. What I can do is suspend it temporarily—that I can do. If in fact I see that some need regarding women’s testimony arises in one way or another in this generation, then I can say, okay, the prohibition on women’s testimony is temporarily suspended. That I really can do—but honestly. If I’m really doing it not because I want to dispute the Talmud or change the Talmudic law, but because I genuinely think this comes to fence off some necessary breach. Okay? So there is a very powerful mechanism here, but using this mechanism honestly limits it quite a bit. You can’t use it to dispute earlier generations or previous rulings of the Sanhedrin, because that you can’t do. But where a real problem genuinely arises, there you can do it. Now you’ll ask me: for how long is this? What does “temporary” mean? For a year? Ten years? A hundred years? How long? I don’t think there’s any limit. What is Rabbeinu Gershom’s ban? Rabbeinu Gershom’s ban was originally stated for a thousand years. It seems to me there was a discussion about this not long ago because the thousand years had passed, and somehow they renewed the ban, but nobody really renewed the ban; they just keep it going as usual. What’s happening? The temporary thing only means, basically, that I’m not now writing a new Shulchan Arukh, I’m not changing the Jewish law. I can’t say that today the law is that women are valid witnesses. But I can validate them as witnesses until another court comes and cancels this, because it sees that there is no longer a need. That is perfectly fine. And even if that takes a thousand years or five thousand years, it doesn’t matter—that’s still called temporary. And that reminds me of something very interesting. You know that in the laws of bills of divorce and marriage, really mainly in divorce law, there is a rule that if the divorce depends on a condition that is eternal, then the condition is void because it is not severance. That’s what the Talmud says. For example, if I say to her: you are divorced on condition that you never go to your father’s house—ever. The condition is void, because the bill of divorce has to create severance, cut off the relationship between the husband and his wife, and if their relationship continues forever, even if only conditionally, that is not severance. But let’s say I tell her: on condition that you do not go to your father’s house for ten years from today. That is fine, because it is a fixed period of time, so that does count as severance. What happens if I tell her: on condition that you do not go to your father’s house for three hundred years? No human being lives three hundred years. So that is effectively the same as saying forever. So the Rashba’s view—I think the Beit Yosef brings this—is that… why is it valid? Because on the essential level it is not eternal. If she lives three hundred years, then she lives three hundred years. True, people don’t live three hundred years, but that is a technical matter. On the principled level there is severance here, because after three hundred years it is severed. True, in practice no one lives to that age. Fine, but that’s still not considered something eternal. I’m bringing this up—I just remembered it now—because that is what I want to claim here. I can in fact change this law forever. I just can’t write it into the Shulchan Arukh as law, my innovation. What I can do is say: I am suspending this law until another court comes and says the suspension has ended, because the problem that arose no longer exists. But if the problem continues to exist all the time, then that law will continue to be changed in practice all the time. And that will still be called temporary. It will be called temporary because I did not dispute the previous court; I am only claiming that this is a suspension for the needs of the time, in order to fence off a breach. And if the court fifty years from now also thinks this is needed to fence off a breach, then it will continue. And if all the courts until the end of all generations think so, then it will continue further. And it will still be a temporary suspension. Because we did not change the law. We are suspending temporarily, except that this “time” will be measured as long as there is a need for it. And when a law is defined that way, then even if it lasts forever, that is still the definition of a temporary law and not a permanent law. And if so, this law in Maimonides is a very, very important key to things that can be done even nowadays despite the lack of authority. At least on the level of suspension, and of course only when the time requires it. So for example, regarding validating women as witnesses, that is not a simple question, because one could say that the time requires it. After all, if I have a better, larger pool of witnesses, of course the legal system will function better. There are things for which I won’t have testimony if I don’t validate women as witnesses. And if I do validate them, I gain testimony regarding more matters. So the time requires it. On the other hand, the time also required this in the days of the Sages, and they still prohibited it. The fact is, they did not accept women as witnesses. Yes, but on the third hand, in the days of the Sages there really was a reason to disqualify women from testimony. Today there is no reason. So is this called a temporary suspension because the time requires it, or is it called changing the law? I don’t know. It’s not a simple question. You understand the dilemma. I can say, look, basically I’m doing this because the time requires it—I want witnesses. It’s true that among the Sages, even though they too wanted witnesses, they disqualified women as witnesses. But among the Sages they disqualified women as witnesses because they truly were not fit to testify. But today women are fit to testify. The reason given by the Sages has lapsed. Okay? But on the other hand, the reason has lapsed, yet even if the reason lapses you still need a court greater in wisdom and number, assuming this is rabbinic. This is Torah-level, but I’m just saying generally—even so, you still need a court to change the law even if its reason has lapsed. Right, but the time requires it. And if the time requires it, then what I can do is temporarily suspend the prohibition on women testifying. Until when? Until the end of all generations. Unless a court in fifty years decides otherwise, in which case it will cancel the suspension—that is perfectly fine. I did not establish a law here, I did not rewrite the Shulchan Arukh. In my Shulchan Arukh it will still continue to say that women are disqualified as witnesses. But in practice I will act differently; I will accept women as witnesses, because this is a temporary suspension of that clause in the Shulchan Arukh. It is not a change in the law of the Shulchan Arukh. I’m not writing a different Shulchan Arukh. I’m placing a black slide over this law in the Shulchan Arukh, not erasing it from there. And every court in every generation will have to consider whether it leaves that black slide in place or tears it off. You should understand that this is a very powerful mechanism for change. I’ll just conclude with law 9. Law 9: Since a court has the power to decree and prohibit something that is permitted, and its prohibition will stand for generations, so too they have the power to permit Torah prohibitions temporarily; we saw that in law 4. What then is this that the Torah warned: “You shall not add to it and you shall not subtract from it”? It means not to add to the words of the Torah and not to subtract from them, and to establish the matter permanently regarding something that is from the Torah, whether in the Written Torah or the Oral Torah. How so? It is written in the Torah, “You shall not cook a kid in its mother’s milk.” By tradition they learned that this verse prohibited cooking and eating meat in milk, whether the meat of domesticated animals or wild animals, but poultry is permitted in milk by Torah law. If a court were to come and permit the meat of wild animals in milk, that would be subtracting; and if it prohibited poultry and said that it is included in “kid” and prohibited by the Torah, that would be adding. But if it said: poultry is permitted by Torah law, and we will prohibit it and inform the people that this is a decree, lest from this matter an obligation result and they say poultry is permitted because it was not specified, so too wild animals are permitted because they were not specified, and another may come and say even the meat of domesticated animals is permitted except for goats, and so on—therefore we will prohibit all meat in milk, even poultry—this is not adding but making a fence around the Torah, and so with everything of this sort. What does Maimonides say? Maimonides says all these things border on the prohibitions of “do not add” and “do not subtract.” You are adding prohibitions to the Torah and removing Torah prohibitions and commandments. Maimonides says: it depends. If you are truly adding it to the law—if you are truly adding it to the law—then that is “do not add” and “do not subtract.” But if you inform everyone, “I did this as a fence,” then you are not saying poultry in milk is prohibited by Torah law because it is like meat in milk. If the court had prohibited poultry in milk and said this is like meat in milk, that would have been “do not add”; they would have violated “do not add.” They must state in the margin of this enactment or decree: know that this is only a decree, not that poultry in milk is included in meat in milk—no, the opposite, the Torah permits it and we prohibit it because of a decree—and then there is no “do not add” here. But within this Maimonides also says that he is speaking about permissions and prohibitions for the time being, about the suspensions of law 4, and about that too he asks why this is not “do not add,” and the answer there is the same answer, because there too, as we saw, we do not write in the Shulchan Arukh that today women are valid as witnesses. If we did that, it would be “do not add.” We need to write a note on the side: this law is suspended until further notice, and then there is no “do not add” here because we neither added nor subtracted; we did not change the law, we only gave an instruction to the people of our generation what to do in practice. The law remains exactly as it is: women are disqualified as witnesses, and in practice we will accept women as witnesses. We did not change the law; we only established what we are supposed to do at this time. So if that is the case, Maimonides is really opening a very large door for us regarding changes in Jewish law, and questions of authority stop us only in places where we want to make a change because in our opinion the law of that time is no longer relevant today, or because we dispute earlier generations. But if the law creates a problem for us today, there is no limitation at all—you can change everything. It needs to be a major court accepted by the public, but a court today could do everything. That is what emerges from Maimonides, and it is a major novelty that in my opinion many good and serious people are not aware of. All sorts of people stop the entire issue of change because “we have no authority.” That’s not true. We have a lot of authority. There is no problem doing this in principle, at least in places where it serves as fencing off a breach that has arisen today. In the next lesson I’ll talk a bit about examples and bring mechanisms of change, and then you’ll see how this thing actually works in practice, and that it also happened in the past—it’s not only hypothetical. I’ll maybe finish with just two examples, or one specific example and its broader generalization, to show how far these things go. The Talmud in tractate Bava Kamma brings a law that one may seize an informer and kill him—an informer, the law of an informer. Someone who hands Jews over to the authorities may be killed under the law of a pursuer. But first, this is an expansion of the law of a pursuer, because we are not talking about someone you know is at this moment going to hand someone over; rather, by his nature he is a person who informs. You are allowed to kill him. But the greater novelty is that this law also exists regarding someone who informs on property. Even if he hands over his fellows’ property to the authorities, even then one is allowed to kill him. Where did we ever find that one may kill someone for informing on property? So the law of a pursuer applies to property? There is no source for this at all. They don’t bring a verse for it, there is no source by exegesis, nothing. It appears in the Talmud that this was how they were accustomed to act in Babylonia. They permitted killing. This thing is ruled as Jewish law in Maimonides and in the Shulchan Arukh and by all the halakhic decisors. How can that be? Now, not only did they permit killing, which is terrible enough, but this is permission for positive action, not passive omission. Right? After all, what they are permitting me to do here is an act of murder; this is not passive omission. Where did we ever hear that one may permit the Torah prohibition of murder through positive action? The answer is that where the time requires it, one may permit it for the time being. At least temporarily. And of course, every time the time requires it, they continue extending that permission further. And there are several sources among the halakhic decisors—there is the Raavad in Ba’alei HaNefesh, sorry, and elsewhere—where he writes, not only he but several medieval authorities (Rishonim) write, that the Sages can uproot something from the Torah even through positive action. Ah—but the explicit Talmudic law says only through passive omission, not through positive action. No—even through positive action. Why? In a place where the time very much requires it. Meaning, a place where the time very much requires it. The Talmud itself addressed a place where the time requires it and said that one may uproot only through passive omission. So where do the medieval authorities (Rishonim) suddenly invent permission to uproot through positive action? The answer is: in a place where the time requires it—that is, where there is a breach that needs fencing off, some breach has arisen here that needs fencing off—then we make a temporary suspension, whether through positive action or through passive omission. And there are no limits on that. And the permission to kill an informer is one specific case of this general rule. That is what the Raavad himself writes: in a place where the time very much requires it, one may even uproot something from the Torah through positive action. And not only did they uproot something from the Torah through positive action, but the ones who did it were not an ordained court at all. In the Talmud, these are Amoraim in the Talmud—Amoraim, not even Tannaim. How do they do such a thing? To permit the prohibition of murder?

[Speaker D] The prohibition of murder is not something a permanent court established; the Torah established it explicitly, not interpretations. The answer is that when the time requires it, you can do anything. Okay, I’ll stop here. If anyone wants to comment or ask, that’s possible.

[Speaker C] Thank you very much for the lesson.

[Speaker D] You’re welcome.