Authority and Change in Halakha, Lesson 8

Table of Contents

• The authority of the Sanhedrin versus communal authority
• Excommunication, ostracism, and social-halakhic validity
• Renewing ordination and public acceptance according to Maimonides
• The historical lapse of ordination and the framework of the Talmud
• Whether the authority of the Talmud is based on “do not deviate” or on the nation’s acceptance
• Fictions, social contract, and the boundaries of the binding “public”
• The weight of the Shulchan Arukh, the Mishnah Berurah, and the “as if” in the comparison to the Chamber of Hewn Stone
• The “kaf hadimyon” in Maimonides as a model for understanding authoritative “as if” language
• A fundamental source for the authority of the Talmud and the halakhic decisors: Baal HaMaor, Raavad, and the Rosh
• One who errs in an explicit Mishnah versus one who errs in judgment as categories of error, not just as texts
• The Rosh’s conclusion: mandatory authority for the Talmud alone, with continued room for dispute afterward

Summary

General Overview

The text presents the question of halakhic authority through a distinction between formal authority and substantive authority, and between authority with respect to facts and authority with respect to norms. It places the source of authority mainly in “do not deviate” and in the authority to legislate and interpret. It argues that, strictly speaking, authority that comes “from above” belongs to the Sanhedrin and to those ordained to sit in it, whereas authority that comes “from below” is created through communal or public acceptance, including bans and excommunications, but without turning a dissenter into someone who violates “do not deviate.” It raises the exceptional authority of the Talmud after the lapse of ordination, examines whether this is authority of the “do not deviate” type or an obligation rooted in the nation’s acceptance, and moves on to a principled halakhic discussion of the authority of the Geonim and the post-Talmudic halakhic decisors, based on the words of Baal HaMaor, Raavad, and the Rosh, and the application of “one who errs in an explicit Mishnah” versus “one who errs in judgment.”

The Authority of the Sanhedrin Versus Communal Authority

Formal halakhic authority is tied to the Sanhedrin and to the ordained sages who sit on it, regarding whom it is said, “do not deviate.” He argues that anyone outside that framework does not possess halakhic authority, except in a case of mara d’atra or a rabbi whom a community has accepted upon itself; in that case, the authority stems from the public’s decision and not from higher authority. He notes that even without a Sanhedrin, a community can accept leadership upon itself, but if a Sanhedrin existed and ruled otherwise, its authority would override that of the entire public. He distinguishes between enacted ordinances that were accepted, such as those of Rabbeinu Gershom Me’or HaGolah, and violating “do not deviate,” and argues that general acceptance creates a ban or a communal law but does not turn this into Sanhedrin-type authority.

Excommunication, Ostracism, and Social-Halakhic Validity

The text describes excommunication as an act that a community can impose, and even presents the theoretical possibility that an ordinary person ought to excommunicate and ostracize in certain situations, and that “it takes effect.” He allows this too to be called “authority,” but distinguishes it from the formal authority of the Sanhedrin. He rejects the assumption that the Shulchan Arukh is binding authority simply by virtue of being a foundational book, and argues that in practice there is broad disagreement among communities and among halakhic decisors, so reliance on it is sometimes a rhetorical norm rather than an accurate description of absolute acceptance.

Renewing Ordination and Public Acceptance According to Maimonides

The text mentions Maimonides’ view that ordination can be renewed by virtue of the agreement of all the sages of the Land of Israel, thereby restoring the law of “do not deviate” even though the process begins with authority “from below.” It emphasizes that this is a novel view that is not universally accepted, and that major controversies surrounded it, including the attempt in Safed in the sixteenth century and a renewed attempt around the founding of the State, when Rabbi Maimon wanted to establish a Sanhedrin. It describes a certain atmosphere of euphoria in the early years of the State, including posters bearing signatures of Haredi rabbis and the phrase “the beginning of the flowering of our redemption, the State of Israel,” but ends with a sharp opposition to establishing a Sanhedrin in certain periods.

The Historical Lapse of Ordination and the Framework of the Talmud

The text argues that in the Land of Israel there were ordained sages in the early generations of the Babylonian Talmud, and that there is a claim that around the time of Abaye and Rava ordination ceased in the Land of Israel, alongside opinions that place it later, as late as the tenth century and even, according to illuminating sources, into the eleventh century. It cites Yehuda Etzion and his booklet “Thus He Saw and Renewed” as someone who brings later sources regarding the question of when ordination lapsed, and raises the question whether this was still the original ordination or something similar to “ordination” in a later sense. He argues that once ordination ended, “there is no more authority,” but presents one central exception: the Talmud is viewed as possessing halakhic authority like a ruling of the Great Court, and in the language of medieval and later authorities “do not deviate” is even attributed to it.

Whether the Authority of the Talmud Is “Do Not Deviate” or the Nation’s Acceptance

The text is hesitant about a simple understanding of the authority of the Talmud as literally “do not deviate,” and argues that today there is no clear practical difference between these definitions. It even raises doubt whether a future Sanhedrin would execute by stoning someone who went against a Talmudic ruling as a rebellious elder. It cites Rabbi Shlomo Fischer in Beit Yishai, section 15, who argues that what binds is “the nation’s acceptance” or “the nation’s agreement,” and attributes the idea to Rabbi Kook, while remarking that Rabbi Shlomo Fischer tends to take ideas without noting the source. It considers the possibility that the public acceptance of the Talmud parallels the acceptance of the Torah at Sinai, and raises the theoretical question of what would happen if the public decided it did not accept the Talmud, while distinguishing between acceptance that restores ordination according to Maimonides and acceptance that creates obligation without ordination.

Fictions, Social Contract, and the Boundaries of the Binding “Public”

The text uses the idea of “fiction” to explain public acceptance even without a historical signing event, and compares it to social contract theories such as Rousseau’s: the world operates as though there had been agreement, and therefore there is acceptance “implicitly.” It connects this to the Talmudic discussion of “a great protest” and “they upheld and accepted,” and presents logical difficulties in the question of why one generation’s acceptance should bind other generations. It offers a borrowed interpretation according to which this is describing a flaw and a completion in the acceptance, rather than a practical license to exempt oneself. It distinguishes between someone who accepts the halakhic framework and is therefore counted as part of the “public,” and someone who does not accept it and is therefore “not in the game.” It cites the language of the Chazon Ish about the difference between “the oilam” and “the world” in order to define the relevant public as the Torah world.

The Weight of the Shulchan Arukh, the Mishnah Berurah, and the “As If” in the Comparison to the Chamber of Hewn Stone

The text describes a popular perception according to which the Mishnah Berurah is “as though it were written in the Chamber of Hewn Stone,” and explains that its standing in Israel was especially strengthened through the Chazon Ish, even though outside Israel people used the Arukh HaShulchan more. It presents the fact that the Chazon Ish disagrees with the Mishnah Berurah as proof that the “kaf” is the “kaf of comparison” and not identity, and argues that this means one should take it seriously but not grant it absolute immunity. He states that the Shulchan Arukh itself was not accepted as an absolutely binding work, and that even around the book of the Shulchan Arukh there are commentaries that disagree with it, and that the Talmud too was accepted in part because of its “elasticity” and the absence of unequivocal bottom-line conclusions.

The “Kaf of Comparison” in Maimonides as a Model for Understanding Authoritative “As If” Language

The text brings an example from Maimonides regarding the law of a fetus that endangers its mother, where Maimonides writes that the fetus is “like a pursuer.” He explains that the “kaf” does not indicate full identity with the law of a pursuer, but rather a partial extension that explains why it is permitted to kill the fetus before its head has emerged, but not afterward. He uses this example to argue that when one says the Talmud is “like” the Sanhedrin, it does not necessarily follow that this is the very same formal mechanism of “do not deviate”; rather, it may be an analogy meant to grant binding force without full identity.

A Fundamental Source for the Authority of the Talmud and the Halakhic Decisors: Baal HaMaor, Raavad, and the Rosh

The text presents as a fundamental source the Rosh in tractate Sanhedrin, chapter 4, section 6, which is brought as Jewish law in the Shulchan Arukh. It first cites Baal HaMaor in the name of an earlier sage who argued that in their time there is no longer such a thing as “one who errs in judgment,” because “all the laws are decided in our hands either from the Talmud or from the Geonim after the Talmud.” It quotes Baal HaMaor as disagreeing and ruling that “one who errs in an explicit Mishnah” applies only to what is clarified from the Mishnah or from the Talmud explicitly and without doubt, whereas in conclusions that are not explicit, the mistake is “one who errs in judgment.” Even the rulings of the Geonim after the closing of the Talmud are considered “the accepted approach of the world” and not “clear and definitive law.” It cites the Raavad, who distinguishes between someone who, upon hearing the rulings of the Geonim, retracts and is considered one who erred in an explicit Mishnah, and someone who stubbornly insists on disagreeing. But later it quotes that the Raavad tends to say that one should not disagree with the Geonim except on the basis of a well-known difficulty.

One Who Errs in an Explicit Mishnah Versus One Who Errs in Judgment as Categories of Error, Not Just Texts

The text explains that the expression “one who errs in judgment” does not refer only to a legitimate dispute, but to an error measured either by the force of an accepted practice that has spread widely (sugya d’alma) or as an indication that this is the correct interpretation. It presents two possible ways to understand this: formal authority by virtue of having been accepted, versus an epistemic indication. He argues that there is a difference between “I don’t agree” and “that’s nonsense,” and compares this to reasonableness review and discretion in law and in medical malpractice. He brings examples of sharp judicial language toward unusual opinions, including a statement by Rabbi Shlomo Fischer about the Ran as “an astonishing midrash,” and presents the position that not everything written in Rashi script automatically enters as a binding halakhic position if it is understood to be a corruption or a blatant mistake.

The Rosh’s Conclusion: Mandatory Authority for the Talmud Alone, with Continued Possibility of Dispute Thereafter

The text emphasizes that the Rosh rules that all matters not clarified in the Talmud arranged by Rav Ashi and Ravina—“a person can demolish and build,” and may even disagree with the words of the Geonim—whereas what is clarified in the Talmud is not open to challenge. It explains that, in the Rosh’s formulation, “one who errs in an explicit Mishnah” in the post-Talmudic context functions as a category of negligence or failure to know existing material, especially when after hearing the words of the sages “they seemed right in his eyes and he admitted that he had erred,” and not as a formal application of “do not deviate” to every halakhic decisor. It quotes the Rosh as recognizing the legitimacy of a later authority ruling against an earlier one by virtue of “the law follows the later authorities,” and that for great sages “the authority is in his hands” to decide on the basis of proofs; but someone who is not bar hachi should act according to the laws of doubt and should not extract money in cases of uncertainty. It concludes that the resulting structure is one of binding authority for the Talmud alone, and after it there is no comparable formal authority, even though substance, greatness, consensus, and rules of error such as “one who errs in judgment” still carry weight within halakhic decision-making.

3. The question of authority. I actually spoke about this and finished the chapter—I don’t even know anymore what number it was—but the last chapter, where we dealt with the source of authority. Where do we learn it from? I defined the concept of authority. I spoke about formal authority and substantive authority. I spoke about authority regarding facts and authority regarding norms. After that I got into the question of the source. Where do we learn authority from? “Do not deviate,” authority to legislate, authority to interpret. And then I made that parenthetical point about joining versus erupting, which appears both in the authority to legislate and in the authority to interpret. Now I really want to go back. We spoke a bit about the practical expressions of authority—that is, who has the authority. So we saw that the authority belongs to the Sanhedrin, to ordained sages sitting in the Sanhedrin. About them this matter of “do not deviate” was said. Whoever is not there has no authority at all from the standpoint of Jewish law, unless, again, it’s the local rabbi or something like that and the community accepted him upon itself. So if you accepted him upon yourselves, fine, then he is the one who decides, because you decided. That is not authority that comes from above; it’s authority that comes from below. But when there is no Sanhedrin? What? When there is no Sanhedrin. Even when there is no Sanhedrin, a community can accept a rabbi upon itself. What do you mean? As long as the Sanhedrin hasn’t ruled? Yes. If the Sanhedrin says no, then fine. They have overriding authority; it’s authority over the entire public. Yes, but that isn’t considered a rebellious elder. Rabbeinu Gershom, the Light of the Exile, established things that were accepted in all Ashkenazi communities. Accepted—but that doesn’t mean that someone who doesn’t do it violates “do not deviate.” No? No, because they accepted it like a law. They accepted it; it’s a ban. A community can also issue a ban. No, but in all the communities. True. The moment everyone accepted it, then the public imposed the ban. And that isn’t considered authority? You can call that authority too, but it isn’t—say, the Shulchan Arukh, that’s not authority? No. That’s what I’m talking about today. Everybody follows it. The Shulchan Arukh? What are you talking about—everybody follows it? Not at all. Take the Shulchan Arukh and look around. Everyone argues with it, Ashkenazim and Sephardim alike. We already spoke about this: the Shulchan Arukh is not a book. People don’t accept it? They argue. Okay, let’s talk about it—that’s what I’m talking about today. They argue? A lot. That’s what I’m talking about today. You’re mistaken. Where does this come from—when there’s some argument, let’s go to the Shulchan Arukh. Fine, that’s what people always say. They don’t say let’s go to Rabbi Ovadia? They say that too. Yes, they say that as well. Fine, another exaggeration. They do say it. Okay, so the question really, as I said before, is the practical expressions—who we give authority to. So I said that in principle, from the standpoint of strict law, only to the Sanhedrin. Meaning, that’s authority that comes from above. Authority that comes from below—I said that every community or public can of course accept it upon itself. I mentioned Maimonides, who speaks about renewing ordination, that he tries to renew—renew in the sense of restoration, okay?—that it is possible to renew ordination through the agreement of all the sages of the Land of Israel; that could renew ordination, and then the law of “do not deviate” would return, even though in fact the authority comes from below and not from above. But that’s a novel idea of Maimonides, which not everyone accepts and over which there are major disputes. There were—we spoke about this—in the 16th century in Safed, and afterward even when the state was established, it came up again a bit with Rabbi Maimon, who wanted to establish a Sanhedrin here, and various other things like that. And he thought he would manage to persuade everyone, or most of the sages of Israel, like in… Look, the truth is, I think you don’t know what kind of atmosphere prevailed here at the founding of the state. It wasn’t far-fetched. There were objections and Haredim and everything, but look—there is a public notice that came out telling people to vote for the United Religious Front in the first or second elections. Look who signed it. Rabbi Shlomo Zalman signed it; several of the great Haredi rabbis signed it. And it says there, “the beginning of the flowering of our redemption—the State of Israel.” So there was a certain euphoria. You have to understand the period. We look at it a bit cynically, but there was a certain euphoria. Something happened there that people couldn’t grasp—in epic proportions. Really, it was something people simply didn’t believe was happening. And many people spoke in that language, including the major opponents of Zionism. And there was—I can understand how people felt that maybe they could even realize some idea of a Sanhedrin. Well, as is known, it didn’t succeed. Good thing too. I don’t think—if a Sanhedrin had arisen in those years, given who would have sat in it, I would have taken up arms against whoever wanted to establish a Sanhedrin. In any case, in the Land of Israel during the period of the Babylonian Talmud, at least in the early generations of the Babylonian Talmud, there were still ordained sages in the Land of Israel. Around the time of Abaye and Rava, the claim is that ordination ended in the Land of Israel. Some date it later, up to the 10th century. Abaye and Rava are the 4th century, 3rd? The 10th century is already the end of the Geonic period. Yes, yes, the end of the Geonic period. Maimonides still met some son of a gaon, or in Maimonides’ own time there was still some gaon or son of the last gaon who sat in Baghdad. Baghdad—Babylonia, that is, essentially. The Geonim of Babylonia. There was one person there whom he disagreed with, I think, in the responsa, when he was head of the academy in Babylonia. Eli ben Hofni, something like that, there’s something there like that. And there was also in the Land of Israel the dispute over the calendar, Saadia Gaon versus Ben Meir, Land of Israel versus Egypt. That was much earlier, no? Not all that much earlier, but yes, before Maimonides—still the Geonic period. In short, Yehuda Etzion once wrote something about this. He has a booklet, “Thus See and Renew.” He wants to renew, I don’t remember what—sanctification of the new month, I think. So he talks there a bit about this issue, and among other things—he’s a very interesting figure, by the way, Yehuda Etzion, a bit off the wall but interesting. And he discusses there, among other things, the issue of exactly when ordination ceased, and he brings sources there I didn’t know—things that go all the way to the 11th century, really very late. The question is to what extent that was still the original ordination, or already something a bit like what today is called ordination. Well, it isn’t entirely clear. It’s not such a simple question. In any event, after ordination ended there is no more authority—but there is one exception, and that exception is the Talmud. Meaning, although certainly in the Babylonian Talmud, and also in the Jerusalem Talmud, there were no ordained sages anymore—at least at the end of the Jerusalem Talmud, among those who sealed the Jerusalem Talmud—and still the halakhic attitude is as though this were a ruling that came out of the Great Court. Meaning, it has “do not deviate” applied to it. I’m not—I already mentioned this—I’m not one hundred percent sure that they really mean this in the full sense of the term. That is, if a Sanhedrin were to return today and someone came out against a Talmudic ruling, I don’t know whether the Sanhedrin would stone him as a rebellious elder. Today there’s no real practical difference whether this is “do not deviate” or not. The practical difference would be whether you violate a Torah prohibition or not. I don’t know what that means—there are no lashes, there’s no practical significance to this today. So it is a bit hard to discuss this. When they say that the Talmud has authority, do they mean literally “do not deviate,” like ordained judges, like the Sanhedrin? There are statements like that among the medieval and later authorities. But very often my sense is that what they mean is: it has authority, period, and one must obey it—not in the sense that it literally continues the very same prohibition of “do not deviate” that was also said about a Sanhedrin of ordained sages. Where does that come from? Where did it come from? And here this brings us back to Maimonides—maybe I mentioned this already. Rabbi Shlomo Fisher talks about this in his homiletic discourses, section 15. In the book of discourses, Beit Yishai, section 15, he talks there about this being the acceptance of the nation, or the agreement of the nation, or something of that sort. The idea is actually taken from Rabbi Kook. He often takes ideas from Rabbi Kook and doesn’t mention it. That was a known practice of Rabbi Shlomo Fisher. And his claim there is that what the entire public accepts is binding. Is that based on Maimonides’ innovation? If so—I no longer remember the details—but if so, then one could say that it really becomes full-fledged “do not deviate” again. Because Maimonides claims that ordination can be renewed, and then all the laws of ordained judges apply. Okay? One could also say no—but just as the acceptance of the public created obligation at the giving of the Torah, when the people accepted the Torah upon themselves, which was given at Sinai, then what difference is there if the public accepts something upon itself in a later period? If public acceptance is binding, then it is binding. So if the public accepted the Talmud upon itself, then it accepted it, and that is binding. Now one could discuss what would happen if the public today decided that it does not accept the Talmud. That might be a practical difference, because if ordination was renewed, then revoking it would no longer help; the public cannot. Meaning, once they are ordained, the public cannot say, we do not accept you over us. You are ordained; ordination comes from above. Now even if you renewed ordination according to Maimonides, most likely that’s it—you renewed ordination, now the mandate is in the hands of the ordained sages. You cannot now retract and say, no, no, we do not accept you, or… But if that acceptance is not an acceptance that renews ordination, but rather like at Mount Sinai the public accepted it upon itself—now it binds. So the public, say in the sixth century—I don’t know, whenever the Talmud was sealed, of course that happened afterward, it doesn’t matter, it didn’t happen at one specific time, it was some historical process—but the public accepted the Talmud upon itself. Fine. And the public of today could perhaps not accept the Talmud upon itself. Is the public of then holier than the public of today? Could the public refuse to accept it—would that require some public decision like that? Yes, just the significance of the people having accepted it 2,000 years ago. I said, it’s like—I once mentioned this matter of fictions. It’s not—say there’s a thesis by several philosophers who speak about the social contract, like Rousseau, right? He speaks about the social contract. He sees that as the philosophical basis for a person’s obligation to moral norms, to legal systems, to all sorts of things of that kind. Now I don’t remember there having been an event in history when the whole world sat around a round table and signed a treaty with one another. Nobody imagines such an event ever happened. So what is it? It’s a kind of fiction. What does that mean? Like in the world of… What? Maybe, I don’t know, in the spiritual world the souls… Yes, the souls, exactly—and my opinion about souls, you know, I can already tell from the tone, so… In any case, the claim is that it didn’t happen. So what? Once the world conducts itself as though there had been such an agreement, then by implication there is agreement here. Meaning, the public accepts it upon itself—we see it, it votes with its feet. You don’t need to sign with pen and paper for that. The public votes with its feet. And therefore it is binding as though there had been some formal moment of signing. Fine, there is a lot to expand on regarding the standing of legal fictions; maybe we’ll talk about that sometime. But… But this has to come from acceptance of the… What? The giving of the Torah, the observance of commandments—does that have to come from the people’s acceptance? What do you mean? From the fact that people accepted it, not from God’s command? The fact is that at least the Sages think we cannot retract—at least after Purim, “they fulfilled and accepted.” Fine, but because of the command. After all, they were observing the Torah even before Purim. But they could retract. That’s what I’m saying. So before Purim, the acceptance by that generation did not bind future generations—so why does the generation of Purim bind future generations? There are all sorts of loops here that are not so simple at the logical level. I understood that before Purim the claim is not that the acceptance of the first generation didn’t… There was a major protest. The claim is that because it was under coercion, and actually at Purim it was willingly. Fine. But now I’ll make a different claim: okay, at Purim you accepted willingly—but not with my consent, so they open for me with an opening and regret. Parallel mechanisms can be made even without a claim of protest. Protest is only one type of opening. If there is another opening, then I can annul it on some other basis. The claim from the outset is not… Meaning what? That amora who said that midrash—he held that until Purim, after all from Purim until… in the period when many of the Jewish people abandoned the Torah. So the claim—the claim would have to be that they did not… This is connected exactly to “do not deviate” that we discussed. The claim is that they did not terminate acceptance of the Torah; rather, they committed sins within the framework. If they had declared, we are no longer prepared to continue, then it would have been nullified. Yes? According to what the Talmud says, it would have been nullified. It’s like what I spoke about regarding violations of “do not deviate.” I distinguished there between two forms: either you do not fundamentally accept the authority of the Sages, in which case you violate “do not deviate,” or you do accept the authority of the Sages but you have urges, you stumbled, you committed one sin or another. So something similar has to be said here too. Otherwise that’s what is compelled by the Talmud; you can’t understand it any other way. So… It could be that the intention is, as it were… to say that there wasn’t something precise in a halakhic sense, but rather to say: until Purim there was some flaw in accepting the Torah, and at Purim that flaw disappeared. A major protest—that’s a legal statement; a protest is… there are laws of protest in the Shulchan Arukh, such-and-such section. I understand that it’s fundamentally a legal statement, but it seems reasonable to me to interpret it as borrowed language. I don’t know. Because if there wasn’t really a protest here, not that there was actually such a legal rule… then what happened after Purim such that the acceptance is now full—for what matter? For what practical consequence? It’s a statement that until then there was some flaw in acceptance of the Torah, because until then it was only under coercion, and at Purim they accepted it willingly, and then it became something more complete. It’s not a statement that until then they were exempt. That’s not usually how people understand it—maybe, I don’t know. In any case, it’s not our topic today, and there’s no practical consequence here for us. But I’m saying there is something in these mechanisms that gets stuck a bit. I don’t know how to explain it in a fully satisfactory way, logically satisfactory, because I do not see what advantage the generation of—leave aside the giving of the Torah, that’s the mythic one—I’m talking about the historical era, not the era of… okay? These are Jews we know: Rif, Maimonides, the Geonim, whoever it may be, the generations of those centuries. So why—what is holier about them? Were there still ordained sages then? There was nothing of the kind, right? So what did they have that we don’t have? Why can’t we say today: we don’t accept it—just as they did accept or didn’t accept it. We are a whole generation, the entire generation. Say there is agreement of the whole generation. Leave it, there’s no such generation. Fine, I’m speaking theoretically. I’m not now entering the question whether consensus can be created. But even then it wasn’t a whole generation, not with Maimonides and not with Rif and not with all those people. They were simply these giant figures, and what they said carried weight with people. And everyone agreed, but did everyone really accept it? That’s exactly like many agreed with many other movements and became Sadducees and became all kinds of things like that. Not everyone agreed—that’s exactly the difference. Everyone agreed. There is no such thing as “agreed.” All the people of Jewish law agreed to accept the Talmud. What does “all the people of Jewish law” mean? We don’t know who existed back then. There were Karaites who didn’t accept the Talmud. No, those were negligible minorities, fine, that disappeared—and there were close to half. Fine, they disappeared. Meaning, no—historically, the Talmud was accepted, that’s not… Leave it, those who didn’t accept it still don’t accept it to this day. So what difference does it make? Today there are hardly any Karaites; how many Karaites are there? That’s marginal. The point is, again—I don’t know, you are right—I don’t know where to draw the line: how many must accept it, and for how long. This whole mechanism is one that is not entirely clear in how exactly it holds water, how it is defined, what force it has. But there is such a thing: when the public accepts it upon itself, somehow that is binding. We know this also in legal thought. In legal thought too, when the Knesset legislates laws, even after two hundred years, as long as they have not been changed, that binds all the citizens two hundred years later. If, say, the Knesset had required a special majority for two hundred years, and there was seventy—say the special majority was seventy-five percent, fine, and there was only seventy percent. Now the majority of the next generation wants to change it. You are giving a mandate to thirty percent to override seventy percent? Who are you? You are all dead already. That was the previous generation once upon a time. Why are you preferable to me? So let them change it. Fine, so let them change it. If they really want to change it, let them go change it. They’ll have seventy percent. But they don’t have it. One person will come along with a party that says this doesn’t make sense and from today onward it’s not like that. You’re saying practically that’s what will happen—maybe you’re right. No, it’s not certain, because I’ll give you an example. I’ll give you an example about authority. I’ll tell you first, it will happen in a place where it has become very, very, very problematic in the new generation. In a place where the majority think it can be changed but it doesn’t really cause substantive damage, it won’t happen. This morning I heard Uzi Dayan; they asked him about those kites there in Gaza. I don’t want to waste one minute on this. So he told them, listen—even in the South today people are not prepared to make a move that really… They agree to complain that this is unreasonable. All those who live in the South, right near Gaza, all their council heads agree to complain that this is unreasonable; none of them agree that this is a situation worth destroying all of Hamas over today. Fine? If one such kite, God forbid, were to land on a kindergarten, and in five minutes reality would become such that people would say, this is the price we are willing to pay, and public opinion would become like that—then it would flip. What would flip in five minutes? How? After five minutes it would flip back. Fine, five minutes—no, that’s exactly—not enough, they still wouldn’t do it. No, there’s the example: three hostages and they went to war. They went to war in Lebanon over three hostages. I estimate that would indeed happen. Hopefully lessons have already been learned in the meantime, so it won’t happen—precisely because of that. It’s like what they argued against the Vilna Gaon, that the Vilna Gaon said that Hasidism has Sabbatean sparks in it. Meaning, later they say to the Lithuanians: you see? The Hasidim remained good Jews, everything is fine. Because the Vilna Gaon fought them, that’s why they remained good Jews. Meaning, had he not gone to war against them, they would have… It all comes down to public opinion in the end. That’s how it is. If there are people like those crazy ISIS guys—if they were to accumulate a critical mass, then they would be the authority and it would be a halakhic state, end of story. Exactly like in Iran. That’s just how it works. It has nothing to do with us. True, there it’s true—but what does that have to do with us? Take all-powerful Putin in Russia. He acted according to the law. He became not-president and then president again. Take Erdogan in Turkey. He held elections in order to get such-and-such a majority. And do you know what they told people who voted not-Erdogan in Turkey? They told him: this time we switched lanes; be careful next time. Doesn’t matter—people love Erdogan, don’t think they don’t. They’re all into him. Just like they love Putin in Russia. Putin in Russia, they love Erdogan in Turkey. I assume, Rabbi, again—I assume that if in Beit Shemesh the Haredim decided they had enough critical mass that they are the government, then they no longer care what people say there. If there were enough Haredim in the Knesset, you would be in a halakhic state, and they would explain to you exactly where you are. No, my dispute is not about ISIS. Why did you bring up ISIS now? Because when you say authority—ISIS in Beit Shemesh is the same thing. Wait, I’m talking about a civilized population, I’m not… But that has no meaning. What does it mean that they accepted authority? Just because people agreed? And I don’t know—it seems to me that the Sanhedrin and authority are not something you choose or don’t choose. No, that’s what I’m saying. I raised two possibilities. I said: the fact that we grant authority to the Talmud—there is room to say that we restored ordination according to Maimonides’ view, and then “do not deviate” returned and the whole story with it, and someone who opposes the Talmud in principle—if there were a Sanhedrin today—they would stone him. Another possibility, and I think it is the more plausible one in my eyes—and I said it in more extreme form regarding the Shulchan Arukh—is that what they really mean is simply that one must obey the voice of the Talmud. They do not really mean to say that this is “do not deviate,” but rather there is some kind of common wisdom here, as it were—some kind of obvious sense that there has to be some framework; it cannot be otherwise. Therefore we established that this is the framework, and that’s it. I don’t know—don’t ask me questions about why this and how it’s anchored and all sorts of things. Nobody would say it that way, but I think behind the words it seems to me more plausible that this is what they mean. And what I once said regarding the Shulchan Arukh is the same thing. I once wondered: if a Sephardi follows the Rema because he agrees with the Rema—and those who think he ought to follow the Mechaber, let’s say for the sake of discussion, that a Sephardi is obligated to follow the rulings of the Mechaber—and he violated the Sabbath according to the Mechaber but followed the Rema, then what? Are they supposed to stone him for violating the Sabbath, or are they supposed to prosecute him because he violated “do not forsake the teaching of your mother,” meaning because he didn’t keep his customs? Because he followed the Rema—what do you mean? He thinks it is not Sabbath violation. He thinks that is the correct way to act; that is his reasoning. Fine? So the same question, only when you go against the Talmud. Did you violate “do not deviate” or not? Did you violate the public’s acceptance, which binds for some reason—I don’t know what? It seems to me that Rabbi Ovadia speaks about a Sephardi woman who marries an Ashkenazi, or vice versa. He says she has to do annulment of vows regarding rice on Passover and then she can eat rice. It sounds as if that’s like a custom with the status of a vow, I think. No, because when she marries, I think usually the claim is that she does not need annulment of vows, because from the outset the custom is such that when a woman marries she accepts her husband’s custom. So originally she accepted the custom only so long as she was in her father’s house. I don’t think annulment is needed there. In any case, can one say, for example, that the community of American Jews, the majority of American Jews, have now accepted upon themselves to change the acceptance of the Talmud and to adopt the new customs of the Reform, and among them they want to act that way? Why can the Orthodox community in Israel, which does not live that life there, come and tell them… No, the Orthodox community in Israel is irrelevant to America. They can do whatever they want there. The Orthodox community in Israel is not saying anything to America. The dispute there is between American Orthodox and American Reform. It has nothing to do with us. They are arguing among themselves. What Israel does—what does that have to do with them? But the dispute there is a different dispute. The question is, of course, who counts as “the public.” And the reasoning—and in my view there is a lot to it, though of course one can be formalistic—the reasoning has a lot to it: whoever accepts the system upon himself can also determine what the authorities will be and exactly what is done and not done. Whoever does not accept the system is not in the game. Meaning, a person… So then the secular people also don’t accept any authority at all, so why do you count them too? Why only Reform? In general, most of the Jewish people today do not accept Jewish law upon themselves. If this was before Purim, were they exempt? So I’m saying, I assume that even before Purim—not, I assume not. But I’m saying, the point is that it’s like what the Chazon Ish always says, that there is a difference between “the oylem” and “the world.” Right? He asks, “the oylem” asks—who is this “oylem” that asks? It’s not the man in the street. “The oylem” means those studying in the study hall—that’s “the oylem.” Meaning, “the world” here is the Torah world, not “the world” in the broader sense. But beyond wordplay, I’m saying that here this is something real. You cannot count fingers of people who are not in the game. Meaning, that is not serious. But the game too is because they accepted it upon themselves. Fine, but that’s the game. Whoever doesn’t want to play—otherwise if you don’t want to accept it upon yourselves… No problem. But whoever doesn’t want the game is not counted. He is playing a different game. But you cannot change the rules of the game if you are not in the game. The question is whether the claim is that this is not a game, but rather something that God demands that we follow? Not whoever wants to should accept… not whoever wants to. But I’m saying: if you are not playing this game, then the Holy One, blessed be He, also doesn’t demand it of you—but then don’t talk to me. Say before Purim, for example. Before Purim, yes—that’s what we discussed earlier. But here, in any case, what does that have to do with it? Even if we were before Purim, whoever is not in the game is not in the game. We don’t count him. It is absurd to count the fingers of people who are not at all obligated. That is, in my view, logically absurd—not halakhically, just logically. So anyone who—for example, even when there was a Sanhedrin—anyone who wanted, say, to steal, would say: guys, what do you want from me? I’m not in your game at all. So I said, after Purim you can’t even say that anymore either. We discussed that. Before Purim maybe that was true. This whole Purim business sounds totally wrong. Yes, but understand: here the halakhic game has nothing to do with the question of stealing. There is also the law of laws among the nations too—you cannot steal. And those laws bind regardless of whether you accepted them upon yourself or not. And someone who wanted, say, to eat pork? Yes, yes—that’s commandments. Give me lashes, do whatever, what do I care—authority or no authority. No, I’m saying, even there, even before Purim, it probably had to be a public decision, not that one person decides he doesn’t want it. But fine—I said I don’t know how to define things here, because this whole business is so hard to define that I don’t know how to define it. What about disputes within the Talmud itself? Did we also accept upon ourselves how it was decided? Wait, I’m getting there. I’m getting exactly there. That’s the next stage—not yet. So basically we are now at the question of the authority of the Talmud: despite the fact that there was no ordination there, certainly no Sanhedrin, there is still some kind of view that the Talmud has authority. I said earlier: I don’t know whether this is literally the authority of “do not deviate,” but it is like the Sanhedrin. That is the accepted approach among halakhic decisors: that it binds like the Sanhedrin. How far this “like” means identity and how far it means similarity—that’s what I said before. By the way, in Maimonides I have some evidence from several places: when Maimonides writes the comparative prefix “like,” he does not mean it is the same thing. For example, regarding a fetus that put out its head—right?—and endangers the mother’s life, in the Mishnah in Ohalot. If it endangers the mother’s life, then if it has not put out its head, they kill it. If it has put out its head, then no, because one life is not set aside for another. Right? Now the Talmud asks: if it is inside its mother, why do they kill it? Because it is a pursuer. So then even if it has put out its head, kill it—what difference does it make? It is still a pursuer. Even a living person who pursues another person—you kill the pursuer. Why do we care whether it put out its head and is now already a person? Yes, putting out its head means it is no longer a fetus but a person. And even a person, when he is a pursuer, is killed. It follows necessarily that it is not really a pursuer. So if it is not a pursuer, then why do they kill the fetus? So the Talmud says, “Heaven is pursuing him”—why do they kill the fetus? Fine. So the accepted understanding of the Talmud is that the conclusion of the Talmud is that they kill the fetus because the value of its life is less than the value of the mother’s life, because it is not yet a person, only a fetus. And the idea that one life is not set aside for another, because “who says your blood is redder”—well, if the mother’s blood is redder than the fetus’s blood, then they kill the fetus to save the mother. So it’s not because he is a pursuer; you don’t need to invoke the law of a pursuer. But in Maimonides it says they kill the fetus because it is “like a pursuer” after her to kill her. And everyone asks against Maimonides: then you’ve gone back to the Talmud’s initial assumption, and then why, if it has put out its head and is also like a pursuer, do you not kill it? But they don’t read carefully: in Maimonides it says “like a pursuer” after her to kill her. And Maimonides’ claim—and it’s a very interesting claim, and I think it has many implications, maybe for things we’ll talk about in Ra’anana—is that Maimonides says that even if the value of the fetus’s life is less than the value of the mother’s life, that still isn’t enough to justify killing the fetus in order to save the mother. Just as we do not kill an old person to save a young person even though he will live fewer years—so ostensibly save the younger person—we don’t make calculations like that. So Maimonides argues that a fetus too in fact has a lesser life-value, but it is still life. You cannot kill it in order to save the mother. So then you say: why does the Talmud nevertheless permit killing a fetus? Because it is “like a pursuer” after her to kill her. There is some expansion here of the law of a pursuer. It is not literally a pursuer. Therefore, if it put out its head and the life-value is the same, you cannot kill it, because this is not literally the law of a pursuer—“Heaven is pursuing him.” But there is still a law of “like a pursuer” here. And we know that even a minor who is a pursuer is killed. That means you do not really have to have awareness; the law of a pursuer does not depend specifically on a conscious murderous plan or intent to pursue, okay? If a minor takes a gun and starts shooting people in the street, they will kill him. Everyone understands he has the law of a pursuer even though he is not responsible for his actions and is a minor or mentally incompetent or whatever. Okay—that’s just the “like,” right? So the comparative prefix “like” is not always identity. When I say the Talmud is like the Sanhedrin, I’m not sure that this “like” should be read as identity. Rather, the meaning is an expansion of the idea of the Sanhedrin: this too is meant to bind us. Now then, there is agreement about the Talmud. After the Talmud, what happens after the Talmud? So after the Talmud too people speak about the Shulchan Arukh and the Mishnah Berurah and all kinds of, yes, milestones—Maimonides, I don’t know, all kinds of… Maimonides they’ve already stopped talking about because many disagree with him. Maimonides no longer binds—maybe among the Yemenites. But the Shulchan Arukh people still speak about, fine. The Chafetz Chaim in the Mishnah Berurah—as if they were written in the Chamber of Hewn Stone. Anyone who disagrees with them is really… yes, as if it were written in the Chamber of Hewn Stone. The status of the Mishnah Berurah, yes—you know that the status of the Mishnah Berurah was created only בארץ on the basis of the Chazon Ish. Actually abroad in Lithuania it was more Arukh HaShulchan than Mishnah Berurah. But of course, you know the edition of the Mishnah Berurah with the notes of the Chazon Ish, where he disagrees with it. In many places he disagrees with it. Maybe the meaning is: anyone who disagrees with the Mishnah Berurah except after the Chazon Ish? Yes, exactly, like Purim. What do you mean? So if all the words of the Mishnah Berurah are as if written in the Chamber of Hewn Stone, then the Chazon Ish is a rebellious elder. Right—that’s the necessary conclusion. He himself said this. So people don’t understand: it’s like written in the Chamber of Hewn Stone. There’s a “like” here, the comparative prefix. People take things too literally. The intention is just that one should treat it seriously, that’s all. Meaning, someone who is not an established halakhic decisor like the Chazon Ish should go with the Mishnah Berurah. At least if he goes with the Mishnah Berurah, he is covered. Meaning, no problem—you are allowed to rely on it. You have arguments to defend yourself; the Chafetz Chaim is your lawyer. You can come to the heavenly court and say: I acted according to the Mishnah Berurah. That’s fine. You’re allowed. But if you are capable and can disagree with it, fine—the Chazon Ish disagrees with it. These are somewhat superficial conceptions, to view this comparative “like” as some kind of statement. So I say the same also regarding the Talmud and the Shulchan Arukh: one has to know how far to take this “like.” In any case, people speak this way also regarding the Shulchan Arukh and also regarding central decisors. So as Shmuel mentioned earlier, and as I’ve said more than once, the Shulchan Arukh was not really accepted, even though everyone speaks in that language. Quite a few people disagree with it, including of course the commentaries around it. The book Shulchan Arukh—but Rabbi Yosef Karo’s Shulchan Arukh is only the part in the middle. Meaning, the Shulchan Arukh in the standard edition with all the commentaries and all the books around it contains many opinions that disagree with it. When he published it, he wanted people to study the Shulchan Arukh every thirty days. What? He wanted people to study the Shulchan Arukh every thirty days when he published it. Yes, exactly. They test on it for rabbinical judgeship. In the judgeship track they test on it for seven years on two out of four sections. So I don’t think any composition was truly accepted like the Talmud. And I spoke about the fact that even the Talmud was accepted only because of its elasticity, because in truth there are no unequivocal bottom lines there. This whole business is, in my opinion, very complex, fascinating, and beautiful—but it is very complex. In any event. But because of that maybe we can say that the Shulchan Arukh was accepted in the sense of: okay, this is the Shulchan Arukh. To the extent of… like the Talmud—let’s say the Shulchan Arukh was accepted in everything where no one disputed it; let’s put it that way. But if they dispute it, then where does the permission to dispute it stop? It was already accepted in the period of the later authorities writing around it. Already then the Shulchan Arukh was accepted. The Ketzot already wrote his notes when the Shulchan Arukh had the same status as today. Yes, but in the Talmud it isn’t like that. Did the Ketzot disagree with it on his own authority? Sometimes yes, sometimes yes. But in the Talmud it really isn’t like that, because any ordinary statement—any opinion not appearing in the Talmud… Yes, I’m saying that regarding the Talmud, I still think one cannot compare. The attitude toward the Talmud is different. And again I say: of course, the Talmud is a text containing many possibilities and opinions and conflicting passages; it is a very elastic and amorphous text and not unequivocal. But still, nobody deviates from it. It’s not… And only because of that. What? Only because of that. Okay, that’s fine by me. Because in the Shulchan Arukh it’s more on a knife-edge, so it’s harder to move aside. I explained that the Talmud—not by accident, or I don’t know whether it was intentional, but in hindsight it seems to me it was a brilliant idea—that this collective, at least, chose precisely such a text to be the canonical framework, yes, our code: the Talmud. A kind of bridge. Huh? A kind of bridge it was. Yes, between the need to close and the need to leave open. A kind of bridge, and therefore it survived, therefore it succeeded, therefore it survived. It’s like constructive ambiguity, as Kissinger, I think, said. Acceptance of the Talmud as constructive ambiguity. Meaning, it is ambiguous enough that I am prepared to accept it as an agreement acceptable to all sides. So the main source that deals with the authority of the Talmud—here, I’ll hand this out to you, the Rosh, okay, there should be exactly… here you go. The Rosh in Sanhedrin, chapter 4, section 6. Let’s read it. “The Ba’al HaMaor of blessed memory wrote”—this is the most foundational source dealing with the authority of the Talmud, and by the way, this Rosh is also brought as halakhah in the Shulchan Arukh—“I heard in the name of a great sage from among the sages of the generation before ours”—the generation before ours, meaning the generation before his, not before our generation—“that nowadays we no longer have ‘one who erred in judgment,’ because all the laws are fixed in our hands, either from the Talmud or from the Geonim after the Talmud.” Meaning, the Ba’al HaMaor cites one sage who said that the Talmudic distinction between one who errs in judgment and one who errs in an explicit Mishnah no longer applies in his day. Every error is either an error in an explicit Mishnah or else no error at all. That is—but every error is an error in an explicit Mishnah. Why? Because all the laws are fixed in our hands, either from the Talmud or from the Geonim after the Talmud. Incidentally, it seems from his words that he means to say not only that every error is an error in an explicit Mishnah, which is what I said earlier, or else you aren’t mistaken at all—there’s no “or.” Meaning, all the laws are already fixed. We know today that the business developed and became much more detailed than it was then, but then they thought that Geonic literature already expanded and specified the general statements in the Talmud so much that by then, the sage before the generation of the Ba’al HaMaor is more or less Rif, you understand? Meaning, this is the very beginning of the period of the medieval authorities. So after Geonic literature they closed all the corners and decided all the laws; nothing was left. That’s it. Everything is now decided, everything is closed. Maimonides also claims something like that—he writes that he did that. No, but he writes that he summarizes everything; he doesn’t say that afterward no questions will remain that his book doesn’t answer. He only says: I summarize everything written up to my day; you won’t need to learn everything written up to my day, it is all summarized here. Why don’t you need to learn it? You still need to compare one matter to another, and that you can, yes? There are questions—no, that I don’t know. Who said there aren’t questions for which you’ll have to think? There are open questions not appearing there and one has to go to the Talmud, no? No, no, you go to Maimonides, not the Talmud. That’s exactly what he says: you won’t have to go to the Talmud, you’ll go to me. But even with me, you’ll still have to examine and compare one matter to another and see what yes and what no—I don’t know. But never mind. He also speaks as if, normatively, in ninety percent of the cases, what I wrote will suffice. Fine, never mind. In any event, that sage claims that everything is closed. There’s nothing—everything is already all there, we have a complete code, there are no more holes, and therefore anyone who rules against the laws before us is either mistaken in an explicit Mishnah or he’s right. There is nothing that is—meaning, either it matches what is written, but there is no category of one who errs in judgment. Basically, what is that sage’s assumption? That the Geonim after the Talmud have the same status as the Talmud, right? That is basically what he assumes. Otherwise, if only the Talmud has that status and the Geonim do not, then what does it mean that someone who goes against the Geonim is considered mistaken in an explicit Mishnah? Either that would be an error in judgment, or maybe not even that—but simply a legitimate opinion. Okay, so that is the assumption of that sage. “Therefore, nowadays one does not find one who errs in judgment, but anyone who errs in an explicit Mishnah has erred.” “And I”—who is “I”? That is the Ba’al HaMaor. All this appears in the Rosh, so you have to pay attention: there is a sage whom the Ba’al HaMaor cites, and the Ba’al HaMaor responds to him, and afterward the Rosh himself responds to that. For now, we are at the point where he cites the Ba’al HaMaor, yes, yes. “And these words do not appear correct to me; rather, anyone whose error is not demonstrable from the Mishnah or from the Talmud explicitly, without doubt”—notice, even if something emerges by reasoning from the Talmud, that is not enough. If something emerges explicitly from the Talmud, without doubt, where there is no room for dispute—that is called mistaken in an explicit Mishnah. Of course “Mishnah” here includes Talmud too—that’s obvious. But it isn’t merely Mishnah, because the terms “mistaken in an explicit Mishnah” and “mistaken in judgment” were coined in the Talmudic period, when what was written was only the Mishnah. For the medieval authorities it is obvious that one who goes against the Talmud is mistaken in an explicit Mishnah—there is no dispute about that. Okay? So he says: if it is demonstrable from the Mishnah or the Talmud explicitly and without doubt, that is mistaken in an explicit Mishnah. But if not, that is mistaken in judgment. He is still mistaken, because something that emerges by reasoning from the Talmud or the Mishnah is still an error, but it is an error in judgment, not in an explicit Mishnah. “He is not considered mistaken in an explicit Mishnah, but rather in judgment, like that case above where they called it a mouse lying on dinars, concerning which Rabbi Yishmael and Rabbi Yosei and Rabbi Chiya disagreed.” Never mind that case now. “Likewise, anything of this kind where his error cannot be clarified from our Mishnah and our Talmud explicitly is mistaken in judgment.” So yes, there is still mistaken judgment. The Ba’al HaMaor argues against the sage before him: you’re not right. Even in our day there is mistaken judgment, not only mistaken in an explicit Mishnah. Fine? But it is still not clear what he says about the Geonim, right? Until now he spoke about the Talmud. What about the Geonim? After all, that sage who preceded the Ba’al HaMaor also spoke about the Geonim, and for him they are like the Talmud. So he continues: “And what the Geonim ruled after the sealing of the Talmud, from compelling reasoning and not from clear and fixed law from the Talmud, has the status of accepted practice, and one who errs with respect to it errs in judgment and not in an explicit Mishnah.” What is he saying? The Geonim do have authority. The Ba’al HaMaor agrees with that earlier sage—but it is not like the Talmud. Therefore even something explicitly written in the Geonim, and you ruled flatly against it, is not called mistaken in an explicit Mishnah—but it is called mistaken in judgment. Meaning, he does accept the authority of the Geonim, like the authority of the Talmud, but he just says: don’t confuse them. It is not mistaken in an explicit Mishnah, even if it is written explicitly in the Geonim. The Geonim do not get the status of Mishnah. Rather, what status do they get? “Accepted practice.” What is “accepted practice”? In tractate Sanhedrin, when the Talmud distinguishes between one mistaken in judgment and one mistaken in an explicit Mishnah, it asks: what is an example of mistaken judgment? For example, one who ruled against accepted practice. What does that mean? Something widespread in the world, where the public is accustomed to rule that way. It is not written explicitly in the Talmud, but the public is accustomed to rule like Rav Yosef against Rabbah—it doesn’t matter—in some particular question, so it has been accepted as law. We spoke earlier about the public’s acceptance being binding. So here too, the same thing: people are accustomed to rule this way even though it was not decided explicitly in the Talmud, and the ones accustomed are the generations after. But it spread throughout the whole public, so that is accepted practice. One who rules otherwise is called mistaken—but he is mistaken in judgment, not in an explicit Mishnah. I once wrote about this. The question is that “mistaken in judgment” is a term that sounds a bit jarring to our ears today. Mistaken in judgment? It’s my judgment. You have different judgment. Fine, then we disagree. But why is this called mistaken in judgment? If it is judgment, then why mistaken? Fine, a disagreement—who says who is right? Just because there is a disagreement, one of them must be wrong? Not true. Who says? Maybe both are right. Maybe the Talmud can be interpreted this way and that way. I don’t know. How do you decide? And even if one is right, who says you are right and not me? So you have one judgment and I have another. What does “mistaken in judgment” mean? It sounds as though they have substantive authority, such that if you… what does “mistaken in judgment” mean? No, I’m not yet talking about the Geonim. I’m still talking about the Talmudic concepts. In the Talmudic concepts we distinguish between one mistaken in an explicit Mishnah and one mistaken in judgment. There there is no text, there is only the Talmud or the Mishnah. Now someone who disputes what is explicitly written in the Mishnah is mistaken in an explicit Mishnah. Someone who disputes what emerges by reasoning from the Mishnah is mistaken in judgment. What does that mean? But by his reasoning he interprets the Mishnah differently. He is not disputing the Mishnah; he is interpreting it differently. So the Talmud says yes—but if it is accepted in the world to interpret the Mishnah in a certain way and you interpret it differently, that is called mistaken in judgment. Why? What do you mean? So one could understand this in two ways. One could understand it—and that is what ostensibly emerges from the Talmud—that it is really not a question of who is right. Rather, if it has become accepted in the world to interpret it that way, that itself has authority. Consequently, you are mistaken. True, it is called mistaken in judgment because you are not mistaken in the Mishnah itself; you are mistaken vis-à-vis the judgment of the post-Mishnaic interpreters, those after the Mishnah. Okay? But still, we see this as some kind of authority—not because they are right, but because they have authority. We are obligated to accept what the public has accepted. Again, we keep returning to this issue that public acceptance, or what the public as a whole accepts, is something that has standing. Okay? That is one possibility. The second possibility—and I tend to think this, and I have a lot of evidence for it—is that accepted practice is an indication; it is not the essence. It is not that because everyone interprets it that way, that itself is binding. Rather, if everyone interprets it that way, then probably that is the correct interpretation. And therefore, for example, you can see this—I bring examples for this, I don’t even remember where I wrote it, I’d have to search—in the article on reasoning I wrote this. The claim is that the Talmud seeks an indication. What is “mistaken in judgment”? You have one judgment, I have another. So who determines who is the one mistaken in judgment? The claim is that if most of the public thinks this way, then as far as we are concerned that is called the correct judgment, and you are mistaken. That’s what I’m saying. Okay? Whereas the first possibility was a formal solution. It doesn’t mean that you are right and I am wrong, but if this is what has been accepted, then it binds—not because it is right, but because there is authority to what has been accepted. Because the majority is right. Why do we follow the majority? Because the majority is right. So what does that mean? That if it was accepted by the majority, then it binds because it is right. Where would the practical difference be? What if a halakhic decisor writes something and it seems to me absurd? I am another decisor. I’m not the Sanhedrin and I’m not most of the world—but this is absurd. For me, that is mistaken in judgment. He is saying nonsense. Not because I am the majority, but because there is a difference—I myself see a difference between a sage who thinks differently from me, but I understand there is a side to this and a side to that, and I incline toward this reasoning—in that case I would not call it mistaken in judgment unless most of the public thinks like me, and then we are back to the previous discussion. But if something is plainly absurd, it does not need to be against a custom that spread in the public. If a few sages say, guys, this is plainly absurd, then that is mistaken in judgment. And you see in responsa that they write: this is mistaken in judgment. What do you mean, mistaken in judgment? You think differently, so say that you think differently. They say: it’s not that I think differently; I’m telling you that what he says is absurd. There is a difference between saying—between saying, he says this, I say that, I of course think as I think, but I understand that there is a side to what he said; he sees it this way, I see it that way—versus situations where it is clear to me that he simply missed something. It is absurd. That is mistaken in judgment. And again, it’s not proof written explicitly in the Mishnah, but it is obvious to anyone who knows how Mishnahs work. I think I once mentioned, regarding conversion, the book by Avi Sagi and Zvi Zohar, what they wrote there on conversion and Jewish identity. So in some article that Zvi Zohar once published, he wrote that accepting commandments as a condition of conversion is an invention of the 19th century. So I wrote about that in some furious article I published—that this is simply ignorance and illiteracy to write such a thing. Simply ignorance. It’s amazing: someone wrote a book, surveyed all the sources, wrote a book on it—and he’s simply ignorant. Fine, never mind. He probably meant something a bit different, but it doesn’t matter. But then a huge polemic broke out over my article on conversion. That was one of the places where I was defined as Haredi, God save us. So there were various responses. Among other things, someone—I said that no halakhic decisor had ever been born, ever, who gave up on acceptance of commandments in conversion. There wasn’t one. Not in any period—from the Talmudic period to our own day. And all the examples they bring are not examples. Now there was one example I knew that apparently does say it, though not entirely—and not entirely—but let’s say yes for the sake of discussion. So some lecturer in Hebrew law, no matter, a professor of Hebrew law, wrote a response in HaKdamot, and he brought Rabbi David Tzvi Hoffmann, he brought the responsa Melamed LeHo’il, Rabbi David Tzvi Hoffmann, where he waives acceptance of commandments. And again I say: even there he does not fully waive it when you read it with determination and sensitivity, but let’s say he does for the sake of discussion. So I said: for me, not every book written in rabbinic script is a halakhic source. If someone writes nonsense in rabbinic script, that does not make it a halakhic source. He is simply writing nonsense. So then anyone who decides? No, that is exactly the formalistic claim—not true, not true. No, not anyone who decides—anyone who wrote forcefully. No, of course, right, that is exactly the difference. But you said no decisor accepted it. No, no decisor accepted it—that’s what I’m saying. No decisor accepted it. A decisor sometimes writes nonsense in his nighttime fantasies. So what does that mean? Does it mean there is a halakhic statement here from a decisor? No. It means he had fantasies, that’s all. He wrote nonsense. Did the Rabbi not bring this as proof for his words? What? Did the Rabbi not bring it as proof? No, of course not. I’m saying: that’s accepted practice. This is exactly what I mean. It is mistaken in judgment in the sense that every normal person who knows the halakhic world understands that it is nonsense. That’s all. So what if a decisor once wrote it? What difference does it make? For me, not everything written in rabbinic script is a ruling. It isn’t a ruling, that’s all. Now true, the formalists say: what do you mean? Then it’s circular—everything you define, then he just isn’t a decisor. Not true. Ask people of Jewish law and they will tell you it is nonsense. And on another halakhic statement they won’t tell you it is nonsense; they will only say that they disagree. There are situations where a decisor simply errs in an explicit Mishnah, so he is simply writing nonsense. That’s all. So what? If he writes it in rabbinic script and he’s an important rabbi, does that mean it isn’t nonsense? It is still nonsense. Maybe nonsense, but he is a decisor. No, he is not a decisor there; he wrote a children’s tale, not a halakhic ruling. What he wrote there is not a halakhic ruling. It’s a children’s tale, that’s all. He wrote nighttime fantasies. The Mechaber also wrote Maggid Mesharim, Rabbi Yosef Karo. No one disputes his halakhic greatness—not even me, though I don’t recognize authority—but he was a giant in Jewish law, okay? He wrote Maggid Mesharim. So what now—everything written in Maggid Mesharim? No, because he wrote it in his nighttime fantasies. So what happened? So a decisor writes in fantasies. So a decisor writes fantasies even in halakhic rulings? It isn’t a halakhic ruling; it’s a fantasy. Again, the Mechaber, by the way, didn’t even write that, which is why I say you don’t even need to get that far. But I’m saying even at the principled level, even if yes—so what? I also wrote this later in Makor Rishon, with the humanities polemic there at Hebrew University. So I brought it as an example of the difference between the perspective of a scholar and the perspective of a halakhic person. The scholar is right: everything written in rabbinic script is, for him, a halakhic ruling. Because he has to approach objectively. For him he surveys all the positions put forward by recognized decisors, and the Radbaz is of course a recognized decisor, so when you survey the range of positions put forward throughout history, you are supposed to survey his position too. But as a halakhic person you can say: folks, this is nonsense—I don’t even put this into the book. Fine, he simply wrote grandmother’s tales. That’s all. So what? He’s an important rabbi, with all due respect, wonderful—but here he wrote things that are inconceivable. That’s all. And I don’t accept this formalism, this “fine, then everyone will disqualify everyone else.” No—not everyone disqualifies everyone else. Sometimes you understand that there is room for what he says, only you disagree. And sometimes you say no—he is speaking nonsense, that’s all. Fine, so here too I say the same thing. The same formalism can arise if you decide that someone is mistaken in judgment. What majority do you need? Do we follow the majority, and anyone who doesn’t go with the majority is mistaken in judgment? I don’t know. There is no rule. But in a place where it is clear that all the other decisors—then yes, that is mistaken in judgment. The only practical question is what this means. It means that sometimes you write nonsense even if it isn’t explicitly against the Talmud. So who decides? Suppose the Rabbi writes somewhere that some consensus has been formed. So that consensus is mistaken in judgment according to a doctor. Fine? In court now—do they ask all the doctors on earth? Irrelevant. The person will die, so they’ll bring a doctor. No—it doesn’t matter if he dies. No, why? A person can sue him for malpractice. He died—he died. What does the treatment matter? He died. Okay, friends, I’m telling you: in this medicine as we practice it, it happens that people die. Now they’ll bring doctors, and they’ll sue him. So what will the judge do? He’ll have to decide whether he erred in an explicit Mishnah or in judgment, right? How will he decide? He’ll bring two other doctors. What would you have done? The opposite of him? So then he’s mistaken in judgment? No, again, you’re making the same formal mistake. They won’t say—they won’t ask what they would have done. They ask: does what he did fall within reasonable bounds? That is exactly the difference. That’s what I’m saying. That is exactly what I’m saying. So if so, then we have no disagreement. Because what I’m saying is exactly the point. If you judge someone else and say, I disagree with him—that is a different statement from saying, you’re speaking nonsense. It is not the same thing. Just as the High Court reviews actions—not rulings but conduct—of government authorities. It does not get involved in the professional considerations; it gets involved in the reasonableness of the discretion. And it says: if the professional considerations are completely against what you did, then I’m not even playing on the professional field here—you simply betrayed your role. If there is a dispute among professionals, then I say fine, you chose that expert opinion, legitimate. I’m not a professional; I can’t decide that this is unreasonable. There is a difference. That is exactly the point that formalists refuse to accept. There is a difference between determining that the other person erred and determining that I disagree with him. They are not the same thing. “I disagree with him” is something else. I really disagree with him—not word games—but I understand that one can think what he thought; it is not unreasonable. I disagree. And sometimes there is a situation where I say: folks, whatever he is saying, he is speaking nonsense. It is not a matter of agreeing or disagreeing. Where is the boundary, and what—everyone will become arrogant and disqualify the other? Yes, I know all those statements. Fine. Still, that’s how it is. Okay, moving on. So that is the opinion of the Ba’al HaMaor, right? The sage versus the Ba’al HaMaor. “And the Ra’avad wrote regarding the words of the Ba’al HaMaor that the sage spoke truly”—wait, sorry—“wrote regarding his words that the sage spoke truly, that if one erred regarding the rulings of the Geonim because he had not heard their words, and had he heard them he would have retracted, in truth and certainly that is one mistaken in an explicit Mishnah.” So the Ra’avad agrees with that earlier sage, but he adds a qualification. He says this is only if after hearing the words—he did not know the words of the Geonim, but after hearing the words of the Geonim he retracts. But what if even after hearing the words of the Geonim he does not retract? He says the Geonim were still mistaken. So what if they are Geonim? Now I know that this is what they wrote, but I still claim they were wrong. So the Ra’avad says no. Meaning, the Ra’avad is already a third position. He doesn’t completely go back to the position of that sage, but—where is the Ra’avad? Ah, the Ra’avad in Sanhedrin, okay? The Ra’avad is a third position. He does not entirely go back to that sage’s position. He argues that yes, if you heard the words of the Geonim and when you heard them you understood that you had erred, then that is considered mistaken in an explicit Mishnah and not in judgment. But you still have the right to disagree with them if even after hearing them you stand by your opinion. So that’s an intermediate position. Okay? “And I am close to saying that even if he disagreed with a Geonic ruling because it seemed to him according to his own understanding not like the Geonim and not like their interpretation, even this is considered mistaken in an explicit Mishnah.” Here he almost does go back fully to the words of that earlier sage. He starts by saying that if you heard and still stand by your opinion, then maybe not—but “I am close to saying” that the sage is completely right. Okay? “That even if he disagreed with the ruling of the gaon because it seemed to him according to his own view not like the gaon and not according to his interpretation, even this is considered mistaken in an explicit Mishnah. For nowadays we have no permission to disagree with the words of a gaon on the basis of our own reasoning, to interpret the matter in another way so that the law changes from the words of the gaon, unless there is a well-known difficulty.” Again, there is still some opening. If it is completely clear that the gaon erred—okay, I’m not talking about that. That everyone would agree about. Yes, everyone would agree about that. A “well-known difficulty” means something broadly agreed upon. But that is something not found. Geonim do not make such errors. Geonim did not make such errors—it’s a hypothetical statement. You remind me of Rabbi Shlomo Fisher too—I once told this. We once sat with the yeshivah from Yeruham in his house and heard a lesson from him. In the middle of the lesson I asked him: look, there is some Ran, I think—I don’t remember exactly what it was—it was on one who was preoccupied in forbidden fats and illicit relations being liable because he derived pleasure. There is a case of unintentional involvement, but if there is pleasure in it, then you benefited. Now the Ran applied this also to positive commandments. “One who is preoccupied in forbidden fats and illicit relations” is regarding a prohibition. If you violate a prohibition while preoccupied, you are exempt. But if it is in forbidden fats and illicit relations where there is pleasure, then even though you were preoccupied, you are liable. The pleasure substitutes for intention. Okay? Now regarding a positive commandment—if you eat matzah while preoccupied, since you enjoyed it, says the Ran, you fulfilled your obligation. Even according to the one who says commandments require intention. And even if this is preoccupation, then it could be that even according to the one who says commandments do not require intention, you still did not fulfill it—but if you enjoyed it, then yes. So I asked him—he said something there and it went against this, so I told him: look, there is a Ran who says this also regarding positive commandments, against what you said there. I don’t remember what he said there. He said, fine, that Ran is a wondrous midrash. And he moved on. One of the great medieval authorities. I once heard him say that about Rabbi Akiva Eiger too. Here it’s a medieval authority, which is even more so. What did he mean to say? I understand it—that is exactly what I said earlier. With all due respect to the Ran, something here—I don’t know—there was some corruption, an erring student, the Ran got confused, nighttime fantasies, I don’t know. But it’s nonsense. Leave me alone. Fine, the Ran was a genius—but it can’t be. It’s not… What? It’s not like what the Rabbi said earlier. Why? It’s not nonsense. I don’t understand what’s written here, so I can’t—so I don’t teach it, I don’t deal with it. It’s a polite way of saying it’s nonsense. When he rules halakhically, he will shout against it. In practical law, certainly. Certainly. He will shout against it—but he won’t determine that it’s nonsense. No! You’re going against the medieval authorities! So what? There isn’t any medieval authority saying otherwise. He says it is plainly incorrect. There isn’t any medieval authority saying otherwise. Why? He means that I would rely on other foundations. No—he rules against it. What do you mean? Something here doesn’t add up. Fine, let’s continue for a moment. I just want to finish. “And not only one who erred in the rulings of the Geonim”—look now, he continues further—not only in the rulings of the Geonim. The Rosh is already the 14th century, something like that. “But even sages in every generation after them are not reed-cutters in the swamp. And if he ruled not according to their words, and when he heard their words they seemed right in his eyes and he admitted he had erred, then he is mistaken in an explicit Mishnah and returns.” Here we see clearly that he is not speaking specifically about the Geonim. It is a type of error, not a type of sage. Rather, if it is the kind of error that when you heard it—and it was already written—and you had not known it, then it is mistaken in an explicit Mishnah. Why? Not because what is written is binding, but because it was written and you should have known it. But if you did not know it, or if you did know it and did not agree, and after they showed it to you, you still didn’t agree—it doesn’t matter. Then you can disagree. It is not the same as the Mishnah. No—with the Mishnah, no, period. No, no—right away you’ll see. No, he uses the term, he writes it explicitly afterward. Meaning, he uses the concept “mistaken in an explicit Mishnah,” but look at the dynamic. This too is mistaken in an explicit Mishnah if you agreed that there is an error. If you don’t agree, then no. And regarding the Mishnah, nothing changes—right away you’ll see. “But if their words did not seem right in his eyes, and he brought proofs for his words acceptable to the sages of the generations”—meaning, the sages of his generation understand that his proofs hold water; it’s not some whim—“Jephtah in his generation is like Samuel in his generation. You have only the judge that is in your days.” And he can overturn their words, fine?—all the sages, from the Geonim until the sages of our own time, says the Rosh—the sages of his own time. And now look at the reasoning: “Because all matters not clarified in the Talmud arranged by Rav Ashi and Ravina—a person may overturn and build, and even disagree with the words of the Geonim.” But not what is explicit in the Talmud of Rav Ashi and Ravina. Because what is clarified in the Talmud of Rav Ashi and Ravina—even if it does not seem right to you, even now after hearing it—it won’t help. The concept of mistaken in an explicit Mishnah continues there. Now I claim that even with respect to the Talmud itself, the application of “mistaken in an explicit Mishnah” is not “do not deviate,” as I said earlier. Rather, it means you have to obey it—a kind of expanded mistaken-in-judgment, let’s call it that, and an expanded mistaken in an explicit Mishnah within judgment. And here in the Rosh you see the dynamic: when the Rosh extends this onward, after the Talmud, he continues to use the concept mistaken in an explicit Mishnah, and he does not mean “do not deviate,” he does not mean literally mistaken in an explicit Mishnah, but rather he means to say: look, if you missed this and it was written, then that’s negligence. Mistaken in an explicit Mishnah means negligence—that’s the point. Even if it wasn’t written, if he agreed, is that negligence? No, that’s exactly the point—not negligence. If he agreed? No, it’s not negligence. What? I explain, wow, right, I was mistaken. No, that’s exactly the difference. No, that’s exactly the difference. It’s an error, but not negligence. Because if it was written, then it’s negligence—you should have known it. You’re a judge. You’re supposed to know what is written. If you do not know what is written, that is negligence. If you simply didn’t think everything through fully, that’s not negligence. It’s an error—mistaken in judgment—your ruling is reversed, but it is not negligence. That is exactly the point. Exactly the point. Meaning, mistaken in an explicit Mishnah means negligent—that is the Rosh’s definition. If this thing was written, you should have known it. But if you know and disagree—fine, you know and disagree. That’s not authority; that’s negligence. That’s exactly the point. “And this is what Rav Huna said to Rav Sheshet: even in your case and in mine?” Meaning, we are amoraim, not only an explicit Mishnah—even we as amoraim, that counts as mistaken in an explicit Mishnah. “And he said to him: are we reed-cutters in the swamp?” There, you see—he asks a question: even in your case and in mine? Is this too mistaken in an explicit Mishnah? We’re amoraim! And he said to him: are we reed-cutters in the swamp? Meaning, yes—even we. That is, if we innovated something by our own reasoning that is found neither in the Mishnah nor in the Talmud—now he returns, of course, from Rav Huna back to himself—“and a judge who did not know our words, and ruled otherwise, and when he heard the words they seemed right in his eyes, then he is, like one mistaken in an explicit Mishnah, and returns.” Notice the “like.” As if mistaken in an explicit Mishnah and returns. Notice this is about practical law. He says this is the law of one mistaken in an explicit Mishnah, even though it is “like one mistaken in an explicit Mishnah.” It is not completely that. But in terms of the practical consequences, it is like mistaken in an explicit Mishnah and not like mistaken in judgment. “But that judge, of course, if he wants to disagree with them, obviously he may disagree with their words. For later amoraim sometimes disagree with earlier ones. And we see this in actual cases every day. And on the contrary, we take the words of the later authorities as primary. After all, the law follows the later authority.” So how can it be that the law follows the later authority if every later authority who disagrees with an earlier one becomes mistaken in an explicit Mishnah? If you say the law follows the later authority, first of all you are saying he is more correct. Beyond your saying he is more correct, it is also obvious that his position is a legitimate one. You can’t say what he says is mistaken in an explicit Mishnah at all. “Since they knew the reasoning of the earlier authorities and their own reasoning, and they decided between these reasonings and arrived at the essence of the matter. And similarly we find that one does not learn practical law directly from the Talmud itself, but from the words of the amoraim we learn legal rulings, even though the tannaim were greater than the amoraim.” “And where two great ones disagree in a legal ruling”—this too appears in the Shulchan Arukh—“the judge should not say, I will rule however I wish. And if he does so, this is a false judgment.” Now there are two later authorities—never mind “earlier authorities,” those before you—who disagreed in a legal ruling. I have no position. What should I do? Whichever one I want? No—you may not do such a thing. If he does so, this is a false judgment. What should you do? Act according to the laws of doubt: the burden of proof is on the claimant, Torah-level doubt stringently. There is doubt. If you have no position, you have no position. You can’t do whatever you want; that’s a false judgment. The laws of doubt apply here. “But if he is a great sage, learned and understanding, and knows how to decide in favor of one of the two disputants with clear and sound proofs, he has permission.” That doesn’t contradict; those are two different things. Even if that is also prophecy? Yes, correct. “And even if another sage ruled differently in the matter, this sage may overturn his words with proofs and disagree with him, as I wrote above.” And he says: even if there is no dispute among the earlier authorities, there is one sage’s ruling and no one disagrees with him—but I disagree with him, I don’t agree with him—that’s fine. I can disagree with him. He means you don’t need to rely on earlier precedents. I can overturn and disagree with him with proofs. Yes, if I have proofs—not necessarily an earlier authority. No—proofs like reasoning, something. “And behold he writes: all the more so if he has support from one of the disputants. And all the more so if he has support from one of the disputants. And if he is not capable”—if the judge is not capable and cannot decide—“he should not extract money on the basis of doubt,” as stated in chapter Chezkat HaBatim, etc. “And if the decisor did not know of the dispute among the Geonim and afterward it became known to him, and he is not capable of deciding, or he does not know how to decide, if the words of one of the sages seem correct and he acted like the other, that is mistaken in judgment.” He may not do that, but it is considered mistaken in judgment if he does not know how to decide. And therefore the majority need to decide against him. I said that’s accepted practice. It requires some kind of consensus to determine that you are mistaken in judgment, but it is not mistaken in an explicit Mishnah because you can disagree with the Geonim. Fine? “And if the matter cannot be determined, then there is no error here.” And if you cannot gather consensus against him? Then no—then it is his judgment and he is the judge. If he is the judge in that case and that is his opinion, then what he ruled stands. So what do we see here as the bottom line? That there is mandatory authority for the Talmud—but only for the Talmud. That’s it. Now it ends, says the Rosh. And this is brought as practical law in the Shulchan Arukh, by the way. The same Shulchan Arukh to which people attribute that same authority—this appears as practical law in the Shulchan Arukh, section 25 I believe, actually in the Rema. And the Rosh says: this does not mean that those who came after the Talmud are reed-cutters in the swamp. They have no formal authority, but if you are not capable, do not decide against them, because they have substantive authority. They are great Torah scholars. If you do not know how to decide, don’t decide. If you do know how to decide, decide—no problem. And then you get into mistaken in judgment and mistaken in an explicit Mishnah. Here this is a very clear statement about the meaning of authority in the generation after ordination. The Talmud has it; after it, no one does. That’s it. I think this is a very clear formulation… Okay.