Authority and Change in Halakha, Lesson 10

Table of Contents

• Authority and change as two sides of the same coin
• The eternity of the Torah and the theological problem of change
• The Ben Ish Chai and tefillin in Baghdad: compulsion and fulfilling a commandment
• Error, religious court rulings, and transgressions versus positive commandments
• The Prinir lawsuit and an opinion on harm from unknowingly eating leavened food
• Tradition versus truth: stories about Rabbi Shlomo Zalman, Chazon Ish measurements, and communities
• Rabbeinu Tam versus Rashi and the question of change versus ancient custom
• Tekhelet, “we have no tradition,” and the attitude toward external evidence like archaeology
• Maimonides on the eternity of the Torah: Principle 9 and the Laws of the Foundations of the Torah
• Laws of Rebels chapter 2: change in Torah-level law versus change in enactments and decrees
• Law 2, greater in wisdom and number, and the Raavad’s critiques
• A conceptual explanation of the distinction: interpreting God’s will versus a clash of authorities

Summary

General Overview

The central claim links authority and change in Jewish law and places behind them theological questions about the eternity of the Torah and the meaning of being obligated to “the word of God.” The speaker defines authority as limited to the Sanhedrin and the Talmudic text, and therefore changing a ruling stated by someone like Rashba is not an authority problem, though there may be other factors such as custom and acceptance by the Jewish people as a whole. He presents a deep resistance to change, which leads to concern about casting aspersions on earlier generations and undermining the assumption that our ancestors fulfilled the will of the Holy One, blessed be He. He illustrates this through stories and disputes surrounding tefillin, halakhic measurements, and tekhelet. He then grounds the discussion in Maimonides’ principle of the eternity of the Torah, and begins studying Maimonides in Laws of Rebels chapter 2 in order to formulate a different model of change: change in the interpretation of Torah-level law versus change in enactments and decrees that derive from the authority of the sages.

Authority and Change as Two Sides of the Same Coin

The speaker says that authority means obedience, and therefore it limits change only in areas where authority exists. He locates that authority mainly in the Sanhedrin and the Talmudic text, not in other halakhic decisors. He states that changing a Jewish law ruling established by Rashba poses no authority problem, because Rashba has no authority in that sense, and he distinguishes between authority in the sense of autos and questions of custom and communal acceptance among the Jewish people. He argues that the question of change is broader than the question of authority, because it touches on religious obligation and the eternity of the Torah, and not just the technical question of who is permitted to change things.

The Eternity of the Torah and the Theological Problem of Change

The speaker presents the eternity of the Torah as a foundational principle in Maimonides and argues that change creates a theological difficulty: if things are changed, that implies that the Torah was previously incorrect or that now it is incorrect, and the question arises what exactly the Holy One, blessed be He, intended us to do. He says that the prohibition against changing things is not just a technical halakhic rule but touches the very essence of the obligation to observe Torah, and he asks whether after a change this is still Torah, and whether what existed until now was Torah. He explains that principles that seem technical, such as not casting aspersions on earlier generations and the degradation of the court, actually reflect something essential: change can create a situation of “either we are not observing the Torah or they were not observing the Torah,” and he describes this as an idea that is hard to live with.

The Ben Ish Chai and Tefillin in Baghdad: Compulsion and Fulfilling a Commandment

The speaker brings a responsum of the Ben Ish Chai about an incident in the days of his grandfather, who was the rabbi of Baghdad, when a traveling emissary claimed that the tefillin in the community were not kosher because their corners were rounded instead of square. After investigation, the rabbi was convinced, and they changed production to make kosher tefillin. He emphasizes how severe the category of “a skull that did not wear tefillin” is, and how difficult it is to say that the Jews of Baghdad for generations did not put on tefillin properly despite their meticulous observance of commandments. He says that the Ben Ish Chai writes “Heaven forbid” to think of them as people who did not wear tefillin, and argues that they did fulfill the commandment of tefillin. He presents this as a far-reaching claim, because ordinarily compulsion exempts one from blame but does not turn the non-fulfillment of a positive commandment into actual fulfillment. He notes that the Ben Ish Chai brings proofs for his position, and that there are two responsa on the matter, one in the responsa collection itself and one in Sod Yesharim. He himself is hesitant and presents the claim as an extreme expression of the resistance to recognizing that earlier generations may innocently have failed to observe a law correctly.

Error, Religious Court Rulings, and Transgressions Versus Positive Commandments

The speaker distinguishes between transgressions and positive commandments: in the case of transgressions, compulsion and error exempt from punishment and blame, but in the case of positive commandments, failure to act under compulsion means the commandment was not fulfilled, even though there is no blame. He brings an example from the Mishnah in tractate Yevamot about a woman who remarried based on a religious court ruling that later turned out to be mistaken, and argues that the halakhic facts remain in place even if there is no personal blame. He uses an analogy to paying taxes to illustrate that the absence of blame does not change the fact that the act was not done, and he presents the Ben Ish Chai’s approach as something like “compulsion is considered as if one acted,” which strikes him as an unusual innovation.

The Prinir Lawsuit and an Opinion on Harm from Unknowingly Eating Leavened Food

The speaker says he was asked to provide a halakhic and meta-halakhic opinion for a lawsuit against the Prinir factory over Passover-certified tomato paste that turned out to contain citric acid with gluten, a wheat derivative, and therefore not acceptable for Passover kashrut certification. He presents the question as one of damage rather than blame: does unknowingly eating leavened food create damage, is it psychological damage or spiritual-metaphysical damage, and how do you translate that into money in a legal system? He says he wrote that there was no damage, and among other things cited the Ben Ish Chai. He describes the lawsuit as absurd from his perspective, and notes that the lawyer is David Or Chen and that he is expected to have a court hearing.

Tradition Versus Truth: Stories about Rabbi Shlomo Zalman, Chazon Ish Measurements, and Communities

The speaker tells a story in the name of Rabbi Lichtenstein about consulting Rabbi Shlomo Zalman regarding ear-piercing for earrings, and Rabbi Shlomo Zalman replied, “My grandmother did it too,” based on the assumption that one should not say our foremothers failed to observe Torah. He describes a traditional mode of thought according to which, if all previous generations did something that way, then it must be right, and he connects this to opposition to the halakhic measurement innovations of the Chazon Ish, which were not accepted in old Jerusalem but were accepted in Bnei Brak. He quotes a sociological explanation in the name of Friedman, that Bnei Brak is a city of immigrants without a stable local tradition, and therefore the dominant figure determines practice, whereas Jerusalem preserves a long-standing tradition that makes it hard to accept innovations whose implication is that one’s ancestors “did not fulfill their obligation.” He declares that he does not like this way of thinking, and argues that if something is true, then it is true even if our ancestors did not do it that way, and that one should not confuse the question of punishment with the question of what is correct.

Rabbeinu Tam Versus Rashi and the Question of Change Versus Ancient Custom

The speaker presents Rabbeinu Tam as an example of someone who reached an independent conclusion through study and changed what had been accepted, even though Rashi, who was “his grandfather,” did not practice that way. He raises the question whether, according to Rabbeinu Tam, Rashi was someone who “did not wear tefillin,” and answers that apparently yes, but this did not deter Rabbeinu Tam. He discusses the question of blessings when putting on two pairs of tefillin, and the custom of putting on Rabbeinu Tam tefillin without a blessing after Rashi’s, or putting both on together with a single blessing. He connects this to the dilemma of ruling like the later authorities, and to the idea that the later authority knows the arguments of the earlier ones and nevertheless rules differently despite the decline of the generations.

Tekhelet, “We Have No Tradition,” and the Attitude Toward External Evidence Like Archaeology

The speaker presents the lack of adopting tekhelet in our time as an example of resistance to change, and says that he was persuaded by the people of Ptil Tekhelet in Yeruham that it “looks right,” and that there is no prohibition against wearing tekhelet, so at least out of doubt one should observe it. He describes a reaction he heard in Bnei Brak through Hamburger, who said this was “an invention of the knitted-kippah people,” and he mentions claims of arrogance and suggestions to wear tekhelet on the inside or hide one’s fringes so as not to provoke people. He mentions Rabbi Soloveitchik in the name of the Beit HaLevi tradition, who argued, “We have no tradition about this,” and the speaker says he has trouble accepting that, arguing that the lack of tradition stems from the fact that the hillazon had not been identified until now, and that this does not refute the identification. He argues that avoiding tekhelet is strange in light of the care people take with other stringencies, and stresses that the matter is also supported by evidence such as ancient dyeing installations and piles of snails in Tyre from marine archaeology. He insists that the arguments should be discussed on their merits and not based on who said them. He also presents the counterclaim that halakhic ruling is not necessarily a search for objective historical truth and is not decided by external considerations like archaeology, and he acknowledges the practical force of that claim.

Maimonides on the Eternity of the Torah: Principle 9 and the Laws of the Foundations of the Torah

The speaker quotes Maimonides in the introduction to Perek Helek, the ninth principle: “that this Torah of Moses will not be nullified,” and that “nothing may be added to it and nothing taken from it, neither in the written Torah nor in its interpretation,” and connects this to the prohibitions of “you shall not add to it and you shall not diminish from it.” He quotes from Laws of the Foundations of the Torah chapter 9, law 1, that the Torah is “a commandment standing forever and for all eternity,” and that “it has neither change nor diminution nor addition,” and brings “It is not in heaven” as proof that a prophet may not introduce anything new. He quotes Maimonides’ statement that anyone who performs a sign or wonder and says that God sent him to add or subtract, or to interpret the Torah in a way we did not receive from Moses, or says that the commandments are not for all generations but only for a limited time, is a “false prophet” and is put to death by strangulation. He notes precisely that according to Maimonides, if a prophet says to change something, that itself is a sign that he is not a prophet. So there is no dilemma between “truth” and tradition; rather, it is simply falsehood. Even so, he argues that in Maimonides there remains an obligation to do what is correct, and the prohibition on change stems from the assumption that the Torah itself does not change.

Laws of Rebels Chapter 2: Change in Torah-Level Law Versus Change in Enactments and Decrees

The speaker says that chapter 1 of Laws of Rebels deals with authority, and chapter 2 with change, and he begins studying the laws inside the text. He quotes law 1: if a great religious court expounded and ruled, and afterward another court arose and saw a reason to overturn it, then it may overturn and rule according to what appears correct in its own eyes, by virtue of “to the judge who shall be in those days.” He concludes that Maimonides assumes that in every generation a religious court can change things even against earlier courts if that is how the law appears to it. He brings an example from the Talmud in tractate Shabbat about Rabbi Akiva, who changed an earlier practice regarding “and she shall remain in her menstrual impurity,” and permitted women to adorn themselves so that they would not become repulsive to their husbands. He emphasizes that this is a change based also on moral and human reasoning, not only on technical interpretation.

Law 2, Greater in Wisdom and Number, and the Raavad’s Critiques

The speaker quotes law 2: if a religious court decreed a decree, enacted an enactment, or instituted a custom, and the matter spread throughout all Israel, another court cannot nullify it unless it is greater than the first in wisdom and in number, even if the reason for the earlier enactment has lapsed. He quotes Maimonides’ explanation that “number” means the number of sages of the generation who agreed with and accepted the words of that court and did not disagree, and he raises the practical difficulty of documentation and counting. He quotes one critique of the Raavad: “not even Elijah and his court” can repeal it once the prohibition has spread throughout all Israel. He then quotes a second critique, which asks from the enactment regarding adorning the markets of Jerusalem with fruit, which Rabban Yohanan ben Zakkai repealed after the destruction because the reason had lapsed, even though he was not greater than the earlier authorities. He raises the question why there is any need at all for the “nullification of an enactment” when the reality to which it applies is no longer relevant, and suggests that the link to an enactment makes more sense in the generation after the destruction, when it was still possible that the situation was only temporary. He wonders how the Raavad knows that Rabban Yohanan ben Zakkai was not greater than the earlier authorities, and suggests that perhaps this relies on the rabbinic statement that “the smallest of them all was Rabban Yohanan ben Zakkai.” He notes that the assumption of the decline of the generations turns the rule about changing enactments into a “dead letter” if there is never any possibility of being greater than earlier authorities.

A Conceptual Explanation of the Distinction: Interpreting God’s Will Versus a Clash of Authorities

The speaker suggests that the difference between law 1 and law 2 is not only Torah-level versus rabbinic-level law, but the type of change involved. In Torah-level law, the later court is not directly confronting the authority of the earlier court; rather, it claims that this is a more correct interpretation of the will of the Holy One, blessed be He, and therefore there is no need to be greater in wisdom and number. He says that in enactments and decrees, the source of obligation is the authority of the sages itself and not directly “this is what the Holy One, blessed be He, said,” and therefore nullifying an earlier enactment is a direct clash with their authority and requires a court greater than they were. He stresses that Maimonides is not opposed to change when it is “the truth to the best of our understanding,” and that the barrier to change stems from the question whether the change is a renewed interpretation of Torah or the uprooting of an obligation whose source is legislative authority.

In the last series, meaning in the recent period, we talked about authority, about concepts of authority that are tied together at the core. On all the lectures I recorded, I wrote something like “Authority” and change in Jewish law. Yes, that was my title too. And this is a continuation of that same series. But it’s still some kind of autonomous unit; you could call it a new series, it doesn’t really matter. In any case, that was the plan from the start. Because the other side of the coin of authority is really the question of change. Because once there is authority, that means you have to obey. In other words, you can’t deviate from the instructions of the authoritative body. And therefore, ostensibly, concepts of authority negate the concept of change. Although since I limited concepts of authority—I said that this applies to the Sanhedrin and the Talmud, but not to other bodies or other people—so you have to understand that even when we reject the idea of change, that only goes as far as the concept of authority goes. In other words, changing a Jewish law established by the Rashba is no problem at all. Because the Rashba has no authority. So it’s true that the concept of authority stops, or prevents, the possibility of change, but it also defines the limits of that prevention. Wherever there is authority, up to there you can’t change. In a place where there is no authority, then there is no such prevention—at least not this kind of prevention—against changing.

So someone says that the Rabbi says the Rashba has no authority, but what about the fact that it was accepted by all of Israel? Fine, that’s already another question. It’s not a question of authority in the sense of autos; maybe it’s a question of custom or other things, but I’ll get to that. So the question of change touches on the concept of authority, but in fact it touches on something deeper, and therefore it’s possible that the limits on change are broader than the limits of authority, at least on the conceptual level. Because one of the basic principles—yes, one of Maimonides’ actual principles—is the eternity of the Torah. And the concept of change, in a certain sense, clashes with that. In other words, the moment I change something in Jewish law, in Torah—I’m not talking right now about halakhic changes, I’m talking about other things, we once discussed the question of authority in relation to facts and thought and things of that sort—so as far as I’m concerned, I’m talking about changes in Jewish law, not changes in Torah. So the question of change does not only confront the principle of authority. Who are you to manage to make a change against an authority? That’s a technical question. But there’s also a theological question here. The theological question is that if you make a change, then that basically means that the Torah was previously incorrect, or is now incorrect. What did the Holy One, blessed be He, intend? What they did until now, or what they’ll do from now on? The idea of the eternity of the Torah, again, is not a technical matter. In the end, we are obligated to the Torah because it is the word of God. And now the question is: what did the Holy One, blessed be He, intend us to do?

The prohibition against changing the Torah is not just one of the rules of Jewish law; rather, I’m obligated to that which is Torah. If I change it into something else, why should I be obligated to it? Or in other words: after you changed the Torah, is it still Torah? Or if I changed it legitimately, then is what existed until now Torah? In other words, there are points here that touch not only on the question of authority and the technical questions of how to do it and against whom to do it and who has authority to do it, but it really touches the theological foundations themselves of halakhic obligation, religious obligation. And therefore we often find in Jewish law principles that look like technical principles, but in fact there is probably some essence behind them. For example, not to cast aspersions on earlier generations. Or yes, the degradation of the court—that is, we don’t want to contradict what earlier courts ruled on a case, or on Jewish law in general. Those things are not just about preserving the honor of the earlier authorities; there is some principle here that either we are not observing the Torah or they were not observing the Torah. And that’s an idea that’s a little hard to live with. Because once I change something in Jewish law, I’m basically saying that all the generations until today did not actually observe what the Holy One, blessed be He, commanded them.

So from your point of view, that means it’s not because of the honor of the earlier authorities? No, not because of the honor of the earlier authorities, but because it’s not reasonable that they didn’t observe the Torah. There’s something here—I’ll maybe bring an example, a very extreme example. There’s a responsum by the Ben Ish Hai. In Baghdad, right? Yes. So the Ben Ish Hai recounts that his grandfather was the rabbi of Baghdad—and he was too, yes—but he tells about something that happened in his grandfather’s time. And one day some emissary came to collect donations from the community there in Baghdad. And apparently he lived with them for some amount of time, some weeks or months, I don’t know exactly how long. He was there. An emissary, meaning from the Land of Israel? Apparently; I don’t remember. It was an Ashkenazi emissary. I don’t know if from the Land of Israel or from Europe; I think from the Land of Israel. Usually emissaries are from the Land of Israel, I think. My grandfather, may he live, was like that—a communal emissary, what’s called a rabbinic emissary. In any case, this emissary arrived in Baghdad, and he comes to the Ben Ish Hai’s grandfather, the city rabbi, and says to him: listen, the tefillin of the people here are not kosher. In other words, the corners of the tefillin were rounded. There was a law that tefillin have to be square—really square, with a sharp corner. And that was what had been accepted in the Baghdad community for generations. In other words, that’s how they made tefillin for generations. And everyone’s tefillin are invalid.

And the rabbi was stunned to hear this. They sat, read, studied, asked questions—I don’t know exactly what—and he became convinced that this emissary was right. Now, you have to understand that tefillin have a special status in the sense that there is the concept called a “skull that never wore tefillin.” In other words, someone whose head never encountered tefillin is in a more severe state than just someone who neglected a positive commandment. Something is missing in him, defective in him—I don’t know exactly how to put it—these are kabbalistic kinds of concepts, but there’s some sort of taboo and some kind of very harsh attitude toward a “skull that never wore tefillin.” And that’s one of the reasons all the Chabad people apparently go out into the streets to put tefillin on people. Now it turns out that the Jews of Baghdad, for generations—I don’t know how long this went on, but a long time—were “skulls that never wore tefillin.” All kinds of Jews who got up early every morning, every day, to synagogue, were careful with every minor and major commandment—and all of it was with invalid tefillin; they didn’t put on tefillin at all.

So the Ben Ish Hai—this is the story—the Ben Ish Hai himself writes about it, and he has another responsum on it, one in Sod Yesharim and one in the responsa itself. And because of this, they changed it? Yes, yes, they changed it. In other words, his grandfather was convinced and they produced kosher tefillin; they started making tefillin differently. So he writes there, heaven forbid that we should regard those people as “skulls that never wore tefillin”—it can’t be, he says, it can’t be. They certainly fulfilled the commandment of tefillin and everything is fine. And that is very far-reaching, because usually we’re used to saying that someone who committed a transgression under compulsion is exempt. Compulsion is not a transgression; what’s called compulsion is not as though he acted. But it’s not true that compulsion is as though he did not act. In other words, if you were compelled and did not fulfill a positive commandment, it doesn’t count as though you did fulfill it. That is, no one will come to you with claims, you’re not a wrongdoer because you were compelled, but you can’t say that you fulfilled the positive commandment. A positive commandment—if you failed to fulfill it under compulsion, then you did not transgress, because there’s no wrongdoing here, but you also didn’t fulfill the positive commandment. In other words, someone who didn’t put on tefillin under compulsion, and afterward the compulsion stopped, has to put on tefillin. In other words, he did not discharge his obligation because he was compelled. The fact that he was compelled does not turn him into someone who did put on tefillin. At most, if the compulsion had continued, then he would be exempt regarding that neglected positive commandment, that he did not put on tefillin.

Now here the Ben Ish Hai is basically making a more far-reaching claim. He basically wants to say that compulsion is as though one acted. That in some sense you also fulfilled it—as though one acted. Because he was making the effort to put on tefillin. Again, on that same day, from the point of view of the impact on the soul? He doesn’t write anything; I don’t know. But what does it mean that they fulfilled the commandment of tefillin? Yes, maybe, or something like that, but he says they fulfilled the commandment of tefillin. Didn’t he make the effort to put on tefillin again on that same day? I don’t know, I don’t know. Good question. I wouldn’t say either way, but I don’t know what he means. He claims that they put on tefillin. But it’s not—suppose they ate matzah with—he also brings proofs for this, by the way. I don’t really agree with them, but he brings proofs. And it seems that he means actual fulfillment of the commandment. He has it in two responsa. In the responsa itself, I think it’s part 4—I can send it to anyone who wants—section 2, I think, in the responsa itself, and in Sod Yesharim section 6. At the end of his responsa there are responsa that are more connected to esoteric matters; it’s called Sod Yesharim, and there too there is this responsum. Yes.

The question is whether this isn’t just one of the requirements of the commandment that is indispensable. Wait, fine, indispensable—but it’s still one of the details of the commandment. Meaning, suppose there is a difference between if the box wasn’t square and, say, if they weren’t Rashi tefillin? Who says? Why? If it’s indispensable, what is the meaning of indispensable? That it’s indispensable, that’s what it means. Indispensable means the tefillin are invalid; it’s not tefillin. I’ll tell you: indispensable means that if proper tefillin happened to come your way that same day, then put them on. Why? What are you talking about? Isn’t that what indispensable means? Indispensable means preferably you should do it that way; if you can, then do it, but if not, then you also did it without that. That’s not how people usually understand “indispensable.” “Indispensable” means you didn’t do it. If you didn’t fulfill it properly, then you didn’t do it. I assume that in the interim period, fine, until they produced the tefillin—from the moment the rabbi made the decision and it took maybe a year until all the tefillin were ready—I assume that during that year they put on the tefillin without a blessing. Let’s say. Same question. But putting on tefillin without a blessing is not forbidden. Putting on round tefillin—if you have no others—so the rabbi tells you: look, educationally, put on these tefillin, all right, even though you are not fulfilling a commandment. But the Ben Ish Hai says more than that. If there were nothing to it, I would also say don’t do it. Not necessarily, not necessarily, I don’t know. It could be educationally. Maybe he says you’re not fulfilling a commandment, but you know, so that we don’t forget the Torah of the commandment of tefillin. Continue putting them on until we have tefillin the right way, and then we’ll put those on. But it doesn’t look like there is really fulfillment of the commandment here; it’s some kind of educational practice. The Ben Ish Hai is making a stronger claim. He wants to say that there was fulfillment of the commandment of putting on tefillin here, which is very far-reaching.

I happened to come across this—it doesn’t really concern our topic. A similar claim, or at least a claim regarding the Hazon Ish, that if his measurements are correct, then this and that and that rabbis immersed in a mikveh that wasn’t kosher. The same sensitivity. So I’m saying that here it reaches a greater extreme. In other words, this unwillingness to recognize that a previous generation, or certain people, innocently did not observe the Jewish law—what I said earlier, that there is some sensitivity toward such a conclusion—with the Ben Ish Hai gets translated into a very far-reaching halakhic statement. His claim is that they fulfilled it even though an indispensable detail was missing. But certainly, when you’re talking about one interpretation or another, you say: wait, so our ancestors didn’t observe the—why should they change now to square tefillin? If until now they fulfilled it, then what happens when they suddenly know? Why do they need to switch to square ones? Obviously they need to do it. He’s not forcing you not to do it; he’s only claiming that if you didn’t do it because of compulsion, you still fulfilled the commandment of tefillin. Compulsion, I assume. He did not deny the law of squareness; he just says that, fine, but if they did it under compulsion—he speaks about that—if they did it under compulsion and they didn’t know, it cannot be that they are “skulls that never wore tefillin”; they fulfilled the commandment of tefillin. Which is—think “a good thought, the Holy One, blessed be He, joins to the deed,” but not as a matter of thought, rather as a halakhic principle; in other words, it is considered an act of commandment.

If a court instructs you to do such-and-such, to fulfill a certain commandment in error, he tells you to do it—I do it, but I didn’t fulfill the commandment of tefillin. If the rabbi made a mistake, then the person did not fulfill the commandment? Obviously. But he went to the authority, he went—so he’s not guilty. Everything is fine; he did not fulfill the commandment. He did not fulfill the commandment, he’s not guilty, no one will come to him with claims, he did what he could—but he did not fulfill the commandment. That’s what I’m saying. If he committed a transgression, say—but again I say, a compelled person under court instruction will be saved. The Mishnah in Yevamot: a court instructs a woman whose husband disappeared, they permit her, they rule that the husband died. So what—is she married or not married? Obviously she is married to the first one. So what if the court instructed her to remarry? In the end the husband is alive and she is married to him. They ruled in error. But if she marries because of the ruling, there won’t be a transgression? What do you mean there won’t be a transgression? The children will be mamzerim. The hard facts remain. There won’t be a transgression in the personal sense—that she won’t be guilty, she won’t deserve punishment. That’s what I’m saying. With transgressions it’s easier, because with transgressions the whole idea is whether you get punished or not, whether you have a transgression or not. If there is a claim of compulsion, there’s no problem. But with a commandment, it’s not just a question of reward and punishment, but of whether you fulfilled the commandment. And if it was under compulsion, what you didn’t fulfill, you still didn’t fulfill.

I once asked about the context of the transgression here—maybe he said there is a transgression of being a “skull that never wore tefillin.” Yes, it’s not exactly a transgression, this “skull that never wore tefillin.” It’s a status of someone who didn’t fulfill the commandment. Yes, but he wanted to say they aren’t in the category of “didn’t wear.” No, no—again, I’d have to look at it again because I saw this many years ago, but his claim is not the claim that no one should come against them. He brings proofs that such a thing is considered fulfillment. Otherwise, it would just be a specific principle regarding “a skull that never wore tefillin”; it would not be a general claim about neglecting a positive commandment under compulsion. But for him, it’s a general principle. It’s very difficult. I added the “neglect”; I don’t think he mentions it, the issue of “a skull that never wore tefillin.” To say they didn’t neglect a positive commandment and yet didn’t fulfill it—that’s how it would seem. But he claims they even fulfilled it, which is very novel. I don’t know how.

His idea is: in his grandfather’s community there were also ignorant people, but still they put on tefillin every day, got up early—you come from next door and tell him, just so you know, actually neither you nor your father nor your grandfather—the psychological barriers and the difficulties I understand, but okay, still the commandment was not fulfilled. But maybe privately he said to the others—maybe he didn’t mean—what do you mean privately? The Ben Ish Hai writes a responsum about it. We’re not talking about what the rabbi said to the members of his community. I don’t know what his grandfather said to the members of his community; it doesn’t say. The Ben Ish Hai writes his own words, not the grandfather’s. He himself claims that they fulfilled the commandment of tefillin. He didn’t have to write that. Maybe let him say what he says, but why does he write it plainly for the public? A hundred years later—it’s not some upheaval that happened at the time, like I said. No, no—he writes a responsum, something that happened in his grandfather’s time. That’s probably many years later, yes. I understand the motivation; the motivation is clear. But motivation can say at most that he is not guilty. You can’t say that you did what you were supposed to do. Someone made a genuine mistake in paying taxes to the state, and it turns out it was simply confusion. So no one will punish him for it—but they won’t collect the taxes from him? Obviously they will collect them from him. In practice he didn’t pay. He’s not guilty, but he didn’t pay. Okay? By contrast, if he ran a red light but got confused, thought it was green, then there he won’t be punished and really nothing happened. In other words, with prohibitions, the claim of compulsion exempts you and there is nothing beyond that. But with positive commandments, if you were compelled and didn’t do it, in practice you didn’t do it. You’re not guilty, but you didn’t do it. There’s an asymmetry here between positive commandments and prohibitions.

What are you saying? There’s compulsion, Torah-level compulsion, what I did unintentionally, right? That I erred under compulsion, yes. Is error compulsion? Yes. But here the error is not my own error. When I do it, I’m convinced that I’m doing the right thing and doing it, as they say, with authorization and under authority. Usually compulsion is like that. There’s something very, very rigid and illogical about this too from the standpoint of—no, it’s rigid if you look at it as rigid, because you’re seeing it as some kind of statement with sanction: you’re not okay. No one said they weren’t okay. But they did not fulfill the commandment. No one is making claims against them. The reward for positive commandments is another account later. No, that’s what I’m saying—not in the accounting. Not the prohibition, but not the positive commandment either. If you’re talking to me about the accounting, after all, it’s obvious that one should not be punished over a positive commandment. That’s obvious. So I’m saying there’s no claim here against the people. It’s not a harsh statement in the sense that we are going to settle accounts with you for not doing a positive commandment. Obviously not. They are not guilty and everything is fine. But they still did not fulfill the positive commandment. That’s a factual question; it’s not a question of whether to take them into account or not. The question is: did you do it or not do it? Like with the taxes.

But why does it matter for the past whether you did or didn’t? I just said—for example, I’m not blaming you for not doing it. For example, now it comes around again and you need to put them on, or did you already discharge your obligation? If you fulfilled the positive commandment, then you discharged your obligation. Why put on tefillin again now? Proper tefillin arrived, the emissary—he gave them his tefillin, maybe they put on his tefillin, I don’t know exactly. He apparently brought them kosher tefillin. Fine, the emissary’s tefillin arrived, and did you discharge your obligation? According to the Ben Ish Hai, ostensibly yes, you discharged your obligation; you don’t need to put them on again for the past. I’m talking about that same day. That same day. You discharged your obligation. Everything is fine. If tomorrow—fine, if you have kosher tefillin, put on kosher ones. I assume he would certainly agree to that, but there is a far-reaching statement here.

Some people once asked me to give a legal opinion, and I think maybe I once talked about this in this context. A legal opinion on—there was some lawsuit against the Priniv factory, a preserves company, for how they produce tomato paste. And on Passover some years ago—I don’t remember anymore—people bought tomato paste with a “kosher for Passover” label, and it turned out there was citric acid inside. Now citric acid contains gluten and is derived from wheat in some form—that doesn’t matter right now—and therefore people don’t generally certify it for Passover. There’s a big question what exactly the status of that thing is, whether it is leavened food or not, but in principle it doesn’t get Passover certification. And had they known, it would not have gotten Passover certification. And there was a class-action suit by consumers who claimed that they had been caused to stumble into the prohibition of leavened food on Passover, and they were suing the factory for substantial compensation.

So a lawyer asked—how do you translate committing a prohibition? That’s a good question, and the judge will have to translate it. There are often situations where it’s hard to translate, and the judge decides how to adapt it. Yes, “wrongs in darkness,” how do you translate that? Fine, apart from tort law—and it’s not the same thing—there is a mechanism. Yes, but there isn’t really a way to translate it into money. In any tort claim there isn’t really a way to translate it. No, in a regular tort claim you can translate it—restore the prior state. How do you receive that? You damaged my chair—translate that for me into a new chair, or whatever, or a chair like it was. You can understand it. There are situations where I can translate.

In any case, the claim was—their lawyer asked me to write an opinion. He asked me for a halakhic opinion on the matter. It’s not really a halakhic question, but a meta-halakhic one. Is there damage in unknowingly eating leavened food? Exactly the same issue. In other words, it said “kosher for Passover,” the Chief Rabbinate had certified it, and the person ate it innocently. So now the question is: did he eat leavened food on Passover or not? So obviously he is not guilty of eating leavened food on Passover. In terms of wrongdoing, there’s no wrongdoing here. But he is making a claim about the damage, not that he is guilty, not because the Holy One, blessed be He, will punish him. Rather, transgressions dull the soul, and all kinds of things of that sort, so he committed a transgression. Now the question is whether a transgression of this type dulls the soul, whether such a thing creates some kind of damage. And another question: is it psychological damage, or spiritual damage, metaphysical damage—how exactly are we to relate to these things? Now all of this is undefined, and it was a very interesting opinion because there isn’t really a way—who asked for it? Their lawyer, David Or-Hen. David Or-Hen. Ah, okay, he was their lawyer, he asked me.

You could do a survey—how much would people pay to be in a state where they hadn’t eaten by mistake? In the literature that’s zero. That’s the argument of the other side; it’s not good for—was there a ruling in the end? There was a ruling. I’m still apparently supposed to go to court now for questioning. I wrote that there was no damage, and among other things I brought this Ben Ish Hai. But no—it’s built on many additional things. I think it’s a ridiculous lawsuit. The legal aspect is not the place to discuss it, but as far as I’m concerned it’s a ridiculous lawsuit. For many reasons. I wrote there a pretty complex framework to show that there is none at all, and even if there were, alternatively and alternatively and alternatively, there is no way. To show damage, you would have to prove so many things that you have no chance of proving it. This certainly isn’t non-kosher meat. What? Non-kosher meat is a different matter. Non-kosher meat is a different matter. With non-kosher meat, a person could come and say: listen, this dulls the soul, and therefore I demand compensation from you. What do you mean—monetary compensation? Here, some of the things I wrote there would not be relevant to non-kosher meat; some would. The Ben Ish Hai, for example, could be relevant to non-kosher meat too, but the Ben Ish Hai is only the last argument. There was a lot before that too. He was hired to represent the defendants, the factory, yes. Interesting—did the factory have insurance for something like that? I have no idea. Because he usually represents insurance companies. I don’t know whether you can even insure such a thing. Wait, and in court they are supposed to award compensation for dulling of the heart? The judge was Arab. What? The judge was Arab. At the first level, an Arab judge, in Nazareth. No, it’s not the first level. I think it’s—no, I read about the whole procedural history. Now it’s no longer an Arab judge; I think it’s Abu As’ad, I don’t remember. It’s changed already. I don’t know exactly how it works there; I’m not expert in exactly what happened.

So let’s get back to our subject. The claim, basically, is that the eternity of the Torah creates a problem with changes, one that is not just a technical issue, but who actually did or did not observe the Torah that the Holy One, blessed be He, commanded. If I change something, then yes, it turns out I’m casting aspersions on earlier generations. Now, there are a few stories about this. I remember that Rabbi Lichtenstein appears in some book about Rabbi Shlomo Zalman—I think it appears in a book about him. I think there’s the Religious Zionist book and the Haredi book about Rabbi Shlomo Zalman. I think it appeared in the Religious Zionist one. Rabbi Lichtenstein, after all, used to go consult with Rabbi Shlomo Zalman from the time he arrived in the Land of Israel. And one day his daughter wanted to get earrings. He said: are you crazy? That’s injuring the body—making a hole in the body? There’s no permission for such a thing; it’s self-injury. And she says: what do you mean? Everyone does it, and so on. So he went to ask Rabbi Shlomo Zalman. Rabbi Shlomo Zalman told them: look, I don’t know, but my grandmother did it too. In other words, what are you bothering me for? In other words, don’t tell me that all our holy mothers didn’t observe the Torah. Now what kind of argument is that? Your grandmother did it—fine, so she didn’t think about it, but it’s forbidden. What? There is some kind of traditional mindset here—traditional not in the sense of “traditional Jews” as opposed to religious ones, but the mindset of the halakhic tradition says: if all the generations did it, then it’s correct. It can’t be; don’t suddenly tell me now that it’s not correct.

By the way, this was part of the opposition to the innovations of the Hazon Ish. With the Hazon Ish’s measurements and the like—he innovated all that—tithes, Judah, it doesn’t matter—but they didn’t practice that way until the Hazon Ish came. And when he came, the thing was not accepted. To this day in Jerusalem, of course, they don’t do it. And when I say Jerusalem, I mean actual Jerusalem, not Ramot and those places that are Bnei Brak of Jerusalem. What is Jerusalem? The Old City? No, no—the neighborhoods, Shaarei Chesed, meaning the older city of Jerusalem. Because I once read in some article by Friedman, the sociologist of the Haredim, where he discussed measurements. Why were the Hazon Ish’s measurements accepted in Bnei Brak but not accepted in Jerusalem? And there’s a very interesting argument there; I think it’s correct. He says Bnei Brak is a city of immigrants. In other words, Jews came there from all over the world, from various communities, all kinds of remnants of survivors. It was established before the Holocaust, but in practice all sorts of people converged there. It’s a community that was created here. It doesn’t have customs that it brought with it from home over many years. Therefore, there, whoever was dominant took over. In other words, if the Hazon Ish was the dominant halakhic figure there, then what he said became the binding law in Bnei Brak. But Jerusalem is an old community. That is, there is a tradition. Nobody can tell them that all their grandfathers and grandmothers transgressed the Torah and did not fulfill their obligation of matzah, eating matzah, and all kinds of things, or sukkah, or all these matters, all the Hazon Ish’s innovations. There is no such thing in a community with a long tradition; you can’t make innovations. And why not? Because that innovation basically says all our ancestors did not properly observe Jewish law. Don’t tell me stories—they are not willing to accept such a thing.

But I, for my part, don’t like that way of thinking. I don’t like that way of thinking, because if it’s correct, it’s correct. So our ancestors didn’t do it—what can you do? So the Holy One, blessed be He, will forgive them because they were under compulsion, everything is fine, but in practice that’s the truth. But this is indeed something deeply embedded in halakhic thought. The Ben Ish Hai perhaps took it to an extreme, but it is really very deeply embedded in halakhic thought, where the assumption is that we are supposed to fulfill what the Holy One, blessed be He, intended. And if He intended what they did until now—and it can’t be that everyone didn’t do it, after all our tradition comes from them—so if they didn’t do it, then I don’t even know where we stand. So if they did it, then it can’t be that what I want to do is what the Holy One, blessed be He, intended, because it has to be one or the other.

I claimed that this is not correct. This whole way of thinking, to me, is infuriating—I’d even say outrageous. What do you mean? We’re not playing games. If you think it’s right, then that’s what is right. And if our ancestors didn’t do it, then fine, the Holy One, blessed be He, will forgive them, but don’t mix the question of punishment with the question of what is correct. What did you mean by what you said earlier? It’s not just the matter of the Holy One, blessed be He, forgiving them. It’s the matter that if our ancestors did it, they probably knew what they were doing. Meaning, probably it’s we who don’t know. Fine. There are good considerations that say they didn’t know. There’s no answer to those considerations. So what? Couldn’t they make a mistake? Weren’t they human beings? If I’m in doubt, I can understand. I’m in doubt whether this is correct or that is correct. But here all the generations did it this way. They probably understood that this is what is right, and I also understand there is such a side. So fine, in a situation where I have a doubt between two possibilities, I would go with that possibility. But if I came to a clear conclusion that it is not right, I have good arguments, I know how to explain it, I do not accept the other view—then I do not see why I should accept it just because earlier generations did something.

But the Ben Ish Hai did change the Jewish law in the end, didn’t he? What? The Ben Ish Hai—peace, ah, Shlomo Zalman by the way—Shlomo Zalman. No, he did not change the Jewish law, because he understood that this was the original Jewish law. I only brought it as a borrowed example; it wasn’t an example of a change in Jewish law. The Ben Ish Hai did indeed change practice regarding squares, but he did not change the Jewish law—he changed what had been practiced—because he understood that they had not done properly; he understood that they had not done what the original Jewish law says. And that is presumably the halakhic consideration, no? Obviously not. I brought the Ben Ish Hai only as a borrowed example. I didn’t bring him as an example of change in Jewish law, but as an example of this instinct that says it cannot be that previous generations did not observe the Jewish law. Now with him it went in a very extreme way on the one hand, but on the other hand it was obvious to him that the previous generations, including his grandfather’s generation, had not been correct. He did not claim that they had been correct. He didn’t claim that it shouldn’t be changed. Yes, so that’s obvious. I am not claiming that he was afraid of halakhic change. On the contrary, he understood there was a mistake here. But precisely because of that, his claim demonstrates more clearly, more strongly, the point that we are not willing to assume that previous generations did not observe Jewish law.

Now, that applies in places where I haven’t reached a clear conclusion that they were mistaken, or where I still have two possibilities, and so on. But what happens when I really have reached the conclusion that they were mistaken? Yes? Rabbenu Tam and Rashi, for example, with tefillin and the times, all kinds of innovations of Rabbenu Tam. His grandfather didn’t do it that way. Rashi was his grandfather. He didn’t do it that way. So what? Where did Rabbenu Tam’s tefillin come from? He didn’t see it from his grandfather. Rather, he reached the conclusion that this is what is correct. He studied the Talmudic passages and reached the conclusion that this is what is correct, and he changed it. And isn’t that against the custom of his ancestors? It goes against one custom, although, you know, in excavations in Masada, for example, they found Rabbenu Tam tefillin. Oh really? But as I recall, here it was—there was an ancient root for it, but still, people did not practice that way. In other words, nobody put on Rabbenu Tam tefillin, and also in the generations before Rabbenu Tam there was—there was… I haven’t researched it, but as far as I know, they did not practice that way until Rabbenu Tam. In other words, there was no such custom among the people. It was clear—not in the Land, among the people—it was clear that tefillin meant Rashi’s tefillin. And likewise regarding the times. Yesterday I saw, as a child, Hasidim—no, but regarding the times, there too it also depends on Rabbenu Tam, but there I think they actually did practice that way regarding the times. By the way, regarding Rabbenu Tam’s times, most decisors are like Rabbenu Tam. Do you know that? A great majority of decisors side with Rabbenu Tam. We follow Rashi, we bring in the Sabbath at the regular time, and Rabbenu Tam is treated as some kind of strange custom, those kinds of people who are stringent; on the outgoing end they are even lenient, because according to Rabbenu Tam they bring in the Sabbath later. They pray mincha at night on Sabbath eve. I was there on Sabbaths that—but in fact most decisors rule like Rabbenu Tam. What do you mean? Anyway—so there too the same question arises. You saw your grandfather’s tefillin—so what are you reinventing the wheel for? So what, Rashi didn’t put on tefillin? Was Rashi a “skull that never wore tefillin” according to Rabbenu Tam? Ostensibly yes. He didn’t put on tefillin. Well, that didn’t deter Rabbenu Tam from saying it. Rabbenu Tam was a strong personality; he made many revolutions. Rabbenu Tam wasn’t deterred by that.

And did he put on two sets of tefillin? Is he talking only about Rashi’s tefillin? If he blesses on—puts on—beautifully—I don’t know. I don’t know what blessing they made or didn’t make. If they put them on one after the other, does one exempt the second? No, he blesses once. If he puts them on one after the other, I believe they bless on Rashi’s and then put on Rabbenu Tam’s without a blessing. Today they don’t bless on both? What? But if they put them both on together, then you make one blessing on both together. There are those who put them on together. You know, they make very small tefillin so that both pairs fit in the proper place. In other words, the assumption is that Rashi is basically the more, let’s say, authoritative tefillin? No, but the assumption is that halakhically it is obvious that if one is right, the other cannot also be right together. Yes.

One issue remains: if we had asked Rashi, maybe he would have vigorously defended his position and proved to us that he was right. On the other hand, if he had seen Rabbenu Tam’s arguments, maybe he would have been convinced and said, wow, I was mistaken. That could also be true, right? So therefore I say—all of this with the Ben Ish Hai and doubt—no, this is the whole dilemma of ruling like the later authority. From Abaye and Rava onward, we have accepted that the law follows the later one. Why? Because the later one knew the arguments of the earlier generations and nevertheless decided. Decline of the generations, yes. Decline of the generations—but ruling like the later authority, at least from the end of the amoraic period.

All right, so we’ve seen a little of the side that sometimes it’s difficult for us to change things, even when there are less decisive reasons on the halakhic plane to change the Jewish law. Take the blue thread, today’s tekhelet. Because people are simply afraid of change, but they don’t do it. That’s neglect of a positive commandment. You ask the decisors—it’s neglect of a positive commandment—what do they say? So I’ll tell you what they say. I asked. Not the decisors; I asked someone who investigated the matter. When I came to Yeruham, to the people of the new Ptil Tekhelet, not Radzyn, I was convinced that it looked right, and certainly at the very least the doubt had not been removed. And there’s no prohibition against wearing tekhelet. In other words, put on tekhelet—in any case you’re fine—and at least you gain the possibility that you are fulfilling the commandment of tekhelet. Even if you weren’t convinced, it’s at least a doubt. But I know that in Bnei Brak nobody did it—or at least then nobody did it; I think even today they don’t, generally speaking. So I called some insiders to ask what they say. Why don’t they do it? What’s the issue? So they referred me to a certain Jew who had investigated the matter, Hamburger, who is known for the customs of Ashkenaz and wrote—I know him a bit—he wrote about false messiahs and their opponents, about Herzl. A fanatical German Jew, as one should be. In any case, he investigated it among all the decisors and important Jews, made some sort of survey. So I called him to ask what he says. He said: it’s an invention of the Religious Zionists. In other words, what do you mean an invention of the Religious Zionists? On the merits, what do you say? It’s an invention of the Religious Zionists. And that was it. Fine, okay.

So there is a situation where from two directions, one of them more internal—no, I understand that because of arrogance, some people claim. There are rabbis, by the way, that I heard did this: because of arrogance, they put the tekhelet on the inside. Because of arrogance—that I can understand. Many people don’t do it, generations didn’t do it. Even if I reached the conclusion that one should wear tekhelet, I wear it on the inside so as not to cast aspersions on others, not to poke people in the eye. That I can understand. Don’t the four corners of the tzitzit also have to be out? No problem, fine, but I am fulfilling the commandment of tekhelet. But yes, there is neglect of a positive commandment regarding those four corners too—a neglect of a positive commandment of eight. Okay, so I can understand if you put everything inside altogether, you don’t even let the tzitzit hang out at all—that’s also possible.

Now there’s Rabbi Soloveitchik on this matter, after all—that it is a tradition from the Beit HaLevi, his great-grandfather’s father—that we have no tradition about this. I find it hard to believe that he himself believed that. What does it mean, “we have no tradition about this”? Obviously, because they now discovered this snail and until now they didn’t know of its existence. What does it mean, “we have no tradition about this”? It’s true that we have no tradition about it, but that doesn’t prove that this snail is not the right one. It only means that until now they didn’t find it, didn’t know of its existence. So what does it mean that we have no tradition about it? Again, the feeling is of course that there is some concern here about reforms, about changes, all kinds of things like that. But to me it is so strange. If you reach the conclusion that the argument holds water and it’s right, then do it. The fact that until today they didn’t do it—the Lord will forgive them, for sure; they’re not guilty. They didn’t know, they didn’t have tekhelet, everything is fine. So what? Because of that I won’t put it on? This is neglect of a Torah-level positive commandment. You’re stringent over all sorts of doubts involving oil derived from legumes on Passover, and here there is neglect of a Torah-level positive commandment. Nothing. Out of sheer pride, nobody fulfills it. A strange thing.

The prevalent assumption holds—if I understand correctly, and it also seems reasonable to me—that Torah study is not detached from other intellectual tools: sciences, reason, archaeology. For example, if something seems logical and plausible to me, there is no reason I should not accept it. That’s part of the claims that come up in this context. For part of the proofs that this murex, the murex trunculus, is the tekhelet, is that when they found all kinds of ancient dyeing vats in Tyre—marine archaeology—they found heaps of these snails there. In other words, it’s fairly clear that apparently these were the snails used to dye ancient blue dyes. That is one of the good proofs that this is the correct identification of tekhelet. So you always say: okay, archaeology is not—we are looking for halakhic arguments. That is a strange argument. If you think there is some problem there—fine, I’m not coming with blind faith in archaeology. What difference does it make to me whether the person who said it is a doctor, or a rabbi, or I don’t know who? Judge things on their merits, not by who said them.

Yes, but there is some kind of conception that says—we don’t—there is some conception, but the point is something else—that the point standing behind the claim about tradition is as if the assumption is not necessarily because it isn’t true. That’s also a side. There is another argument that says archaeology today is nonsense, no need to believe them. But there is an argument that says that halakhic decision-making—let’s put it differently—halakhic decision-making is not based on external considerations. It is not looking for some truth in an objective sense. It is not necessarily identical with historical truth, let’s say, if we call it that. And it doesn’t belong—according to what an archaeologist understands, understands—the argument could always stand, but the claim is that this is really what could justify it, that’s the fundamental argument, that’s what I meant. In other words, archaeology was only an example. Yes, that is a very strong argument, in practice.

Anyway, what stands against change beyond authority is the eternity of the Torah. Let’s read maybe one or two sources here. In Maimonides’ introduction to Perek Helek, he brings the thirteen principles. The ninth foundation, which is the ninth principle, is abolition—and that is that this Torah of Moses will not be abolished, and no other Torah will come from God besides it, and nothing will be added to it and nothing subtracted from it, neither in the written part nor in the interpretation. Not only in the written things, but also in the interpretations. He said, “You shall not add to it nor subtract from it,” and we have already explained what needed to be explained in this principle in the introduction to this work.

So therefore, the principle of the eternity of the Torah says that you cannot change it; you cannot add, you cannot subtract. What was, is what was given to Moses at Sinai, and you are forbidden to change this matter. And in the Laws of the Foundations of the Torah, there in chapter 9, law 1: It is clear and explicit in the Torah that this commandment stands forever and to all eternity; there is neither change in it nor diminution nor addition, as it says, “Everything that I command you, that shall you observe to do,” and here too this is “You shall not add to it nor subtract from it.” What does that mean? You need to fulfill what I commanded you. What I said earlier: if you change it, then either they did not fulfill what the Holy One, blessed be He, commanded, or I do not fulfill it. What He commanded is what He commanded; He did not command both things. That’s the assumption, yes. And it says, “The revealed things are for us and our children forever, to do all the words of this Torah,” from which you learn that all matters of Torah we are commanded to do forever and that they are not supposed to change. And so too it says, “an eternal statute throughout your generations,” and it says, “It is not in heaven,” from which you learn that a prophet is not permitted from now on to introduce a new matter. Even a prophet—which ostensibly, if he does it, then apparently it’s right, right? Fine, but no changes are made.

Therefore, if a man should arise, whether from among the nations or from Israel, and perform a sign or wonder and say that God sent him to add a commandment or subtract a commandment, or to interpret one of the commandments with an interpretation that we did not hear from Moses—or if he says, which Maimonides himself of course did quite a bit—or if he says that those commandments with which Israel was commanded are not forever and for all generations, but were commandments only for a particular time, then he is a false prophet, for he has come to deny the prophecy of Moses. And his death is by strangulation, because he deliberately spoke in the name of God what He did not command him. For He, blessed be His name, commanded Moses that this commandment is for us and our children forever, and God is not a man that He should lie.

Now here there is a subtle point. Because I said earlier: after all, if a prophet says it, then apparently it’s true. And nevertheless, we don’t change. Which is not precise. What Maimonides says is that if a prophet says to change, then he is simply not a prophet. In principle, if it were true, then yes, we would have to change, because apparently we were mistaken, or the Holy One, blessed be He, changed His mind, or however we explain it. But since Maimonides understands from the Torah and the tradition of the Sages—it doesn’t matter—that it cannot change, then if a prophet comes and tells us something, he is simply not a prophet. Therefore it is not true. There is no dilemma between truth and tradition; rather, it is not true. And since that is so, there is no problem. That’s why I say that although Maimonides writes not to change, on the other hand Maimonides also writes that one must do what is true. The reason we do not change is simply because we think it is not true, not because “we don’t change.” There is no such principle of “we don’t change.”

All right, so in any case that is the infrastructure from which the discussion of changes in Jewish law begins. Now what I want to do is study Maimonides in the Laws of Rebels, chapter 2. It is basically the chapter dedicated to the relationship between authority and change. Chapter 1 talks about authority, which is basically what we’ve discussed until now, and chapter 2 talks about change, which is exactly the other side of the coin. And here I want to study it from the inside, because each of these laws has interesting implications of its own, and we need to pay close attention to them. Used pages. Somebody doesn’t like that.

So let’s begin with the first two laws, which I already mentioned, but now for our purposes. Law 1: If the Great Court interpreted one of the hermeneutical principles according to what seemed to them, that the law was thus, and they issued a ruling, and afterward another court arose and another reason seemed to it by which to overturn that ruling, then this later court may overturn it and rule according to what seems right in its own eyes, as it says, “To the judge who shall be in those days”—you are obligated to follow only the court of your own generation. So here Maimonides’ starting point is precisely that every court in every generation can, and even should, do what seems right to it, even if that goes against previous generations. He has no problem with changes on the principled level. And why not? Following what I noted earlier about the prophet—because this is really what is correct according to our best understanding, and we do what is correct. Maimonides’ opposition to changes is simply because the Torah promises that there will be no change. So if you claim there is a change, then you simply are not a prophet; it isn’t true. But in the context of courts, that is apparently not relevant for some reason. We’ll talk about that shortly.

The Jewish law is what the previous court said—isn’t that the Torah? Yes, exactly. In other words, it just made a mistake. And therefore, according to our best understanding now, we understand that this is what the Holy One, blessed be He, expects from us, so obviously we will do this even though it is a change from the earlier tradition. I mentioned the Talmud in Shabbat regarding Rabbi Akiva on “in her menstrual state.” I mentioned it. There were earlier generations—the Talmud says there—that earlier generations used to act so that a woman would be in an ugly state and would not adorn her eyes and would not beautify herself, all kinds of things like that, during her period of prohibition, until Rabbi Akiva came and said: it turns out you make her repulsive—can it be that you thereby make her repulsive to her husband? How could such a thing be? So he permitted it. He interpreted “in her menstrual state” to mean until she immerses; he did something else with the verse. Okay? Here there is an actual documented change, a documented change against what was accepted in earlier generations, and it doesn’t seem there was an argument about it. Rabbi Akiva came and went against the very established tradition that existed until his time. Why? Because it was clear to him that it was not right. And it’s interesting there, because it wasn’t only that it was clear to him that it was not right, but it was clear to him by reasoning: “can it be that you make her repulsive to her husband?” His argument was a moral, human argument—I don’t know exactly what—but not some interpretive argument of one sort or another. That it cannot be. Yes, that it cannot be. Rather, he says it is not reasonable, because it doesn’t make sense with the values of the Torah or something like that, and therefore he took the verse and interpreted it differently.

So that is what Maimonides says here. If you think this is the truth and this is the truth—Maimonides doesn’t say here “if you think”; he says “if a court thinks.” Yes, a court. I’m talking about a court right now. Only a court, I promise. We’ll still get to the question whether it has to be a court or not a court, but here Maimonides is talking about a court. Therefore I say that on the one hand until now we talked about one side of the coin, the resistance to change. But I say: the resistance to change is not because of tradition, like Tevye the milkman—tradition!—you can’t change because there is some obligation to follow tradition. No. Maimonides says explicitly not like that. Maimonides says because there is an obligation to follow the truth. Except that if a prophet testifies against our tradition, then that is not the truth, and therefore we don’t listen to him—not because it changes. But if there really is a court that goes against a tradition that came from an earlier court or earlier courts, then what is the problem? This is the truth, and we go with it. There is no principled problem with change, as long as you know that this is the truth. I am speaking, of course, only about a court; you’re right in that comment. And that is what he says: as it is written, “to the judge who shall be in those days”—you are obligated only to follow the court of your own generation.

Law 2: If a court decreed a decree, or enacted an ordinance, or instituted a custom, and the matter spread throughout all Israel, and afterward another court arose and wanted to nullify the earlier matters and uproot that ordinance, that decree, or that custom—it cannot do so unless it is greater than the earlier one in wisdom and number. If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot nullify its words. Even if the reason for which the earlier authorities decreed or enacted has ceased, the later ones cannot nullify it unless they are greater than them. And how can they be greater than them in number? “Number” means the number. After all, the Great Court is always seventy-one. So how can a later court be greater? In wisdom, fine—but in number? How can that be? So he says: since every court is one of seventy-one, “number” means the number of the sages of the generation who agreed with and accepted the matter that the Great Court said and did not dispute it. In other words, it turns out that apparently the Great Court does not function in a vacuum. The sages of the generation—the generation’s sages who are not sitting in the Sanhedrin—apparently join the Sanhedrin’s decision once it becomes clear that there is some new interpretation or a precedent-setting decision. So the sages of the generation join the Sanhedrin’s decision. And Maimonides apparently implies that we would even count a generation, so that even if a hundred years later another court sits and wants to change it, and they count the sages of their generation, then they have to see who is greater in wisdom and in number—which also means quantity.

Now what, for every ordinance enacted in the past did they write down how many sages agreed with it? Did they count at all? And if they counted, did they write it down? Where was this documentation of the number of those who agreed preserved? I don’t know exactly, but that is what Maimonides says. In any case, that’s anecdotal. For our purposes, what is the relationship between this law and the previous law? In the previous law, two ordinances—what, two ordinances, right. In the previous law it doesn’t mention that it has to be a court greater in wisdom and number. Any court in any generation—“you have only the judge of your own days.” And here it says it has to be greater in wisdom and number, even if the reason has ceased. Yes, meaning even if it is clear that the situation has changed. You have to understand what it means that the reason has ceased. “The reason has ceased” means we are not disagreeing at all with the previous generations, with the previous court. In their time they were right, and we also think they were right—only now the reason no longer exists. Even there, Maimonides says, we do not change unless we are greater in wisdom and number than the earlier ones. What is the relation between these two laws? Ostensibly it’s contradictory.

So as Shmuel said, Law 1 deals with Torah-level laws, or interpretations—Maimonides is not clear about their status, but it doesn’t matter—not rabbinic enactments and decrees. Law 2 deals with rabbinic enactments and decrees. In Torah-level law, any court in any generation can change what had been accepted until its time. It does not need to be greater in wisdom and number than the earlier one. In rabbinic laws and decrees, it needs to be greater in wisdom and number than the earlier ones. The basis of the matter actually depends on a contradiction between Talmudic passages, especially in Eruvin, I think. There is one passage that says that something decided by a counted court needs another counted court to permit it. And it doesn’t mention that it has to be greater in wisdom and number, only that a matter decreed by the Great Court can be changed only by another great court, not by a lower-level instance. And in another passage it says it needs to be greater in wisdom and number. Not every counted court can permit what a previous counted court forbade; only if it is greater in wisdom and number than the earlier counted court. “A matter decided by a counted court” means a matter decided in court.

So Maimonides—there are somewhat different views among the medieval authorities; the Meiri and the Ritva also agree with Maimonides—the accepted reconciliation of that contradiction is that the rule “a matter decided by a counted court needs another counted court to permit it” applies to Torah-level laws, and the requirement that it be greater in wisdom and number applies to rabbinic laws, enactments, and decrees. And that is basically what Maimonides rules here, and that is probably his source.

The Ra’avad says: “Abraham said: not even Elijah and his court, since their prohibition spread throughout all Israel, like idolatry.” Here there is a possibility that if the thing spread throughout all Israel, then no court can ever nullify it. Elijah may explain that later. But the second gloss is interesting for our purposes. Gloss, yes—“if it was greater in wisdom and number,” etc. “Abraham said: the adorning of the Jerusalem markets with fruit is difficult for him, for the earlier authorities enacted it and Rabban Yohanan ben Zakkai abolished it after the destruction because the reason for the earlier ones had ceased, and he was not greater than the earlier ones.” In other words, he challenges Maimonides. Maimonides after all says that even if the reason has ceased, you still need a court greater in wisdom and number. Now it is true—that’s what the Talmud says too—that even if the reason has ceased, it still needs another counted court to permit it, meaning it does not lapse on its own. But the Talmud does not say that the later counted court that is needed to permit it must also be greater in wisdom and number. And on this point the Ra’avad disagrees with Maimonides. In other words, the Ra’avad says that if you want to nullify an ordinance or decree when the reason has ceased—not when you are coming to dispute the previous generation or the previous court, but when the reason has ceased—then yes, you need a court, because the original institution was by a court, but it does not need to be greater in wisdom and number.

And his difficulty, or his proof in his favor against Maimonides, is from the ordinance of adorning the Jerusalem markets with fruit. When people came up on pilgrimage, they adorned the Jerusalem markets with fruit. And once the Temple was destroyed and people no longer came on pilgrimage, they abolished it—the reason had ceased, there was nothing to adorn for. And Rabban Yohanan ben Zakkai abolished it, and he was not greater than the earlier ones, and nevertheless he abolished it. So we see that when the reason has ceased, you can abolish the ordinance even if the requirements of being greater in wisdom and number are not met. The truth is that there the Talmud itself ties it to the question of the cessation of the reason, but it’s so strange. I mean, what does the Ra’avad expect? Suppose there wasn’t. What do you expect? Suppose there was no Sanhedrin—are we supposed to keep decorating the Jerusalem markets with fruit even though no one is coming on pilgrimage? So then, in a sense, he doesn’t expect that; he expects that this is what follows from Maimonides’ view. What? But he says no—it’s not connected at all to abolishing ordinances. Forget Maimonides and the Ra’avad for a second, about what kind of court can nullify a previous court. It sounds absurd. You’re going to continue decorating—it’s no longer relevant at all. It’s not a matter where something changed and we can discuss it. It was part of the pilgrimage, but there is no pilgrimage anymore. What do you want?

There are situations—we’ll see this later—where the change is so dramatic that you can’t call it merely “the reason has ceased.” It’s simply no longer relevant at all. No, but according to your approach, what did Rabban Yohanan nullify? What? Did he also nullify the sacrifices? There is no Temple. What did he nullify? That’s what I’m saying. No, leave aside what the Ra’avad says. No, no, what are you talking about? I’m talking about the Talmud. The Talmud itself brings it in the context of abolishing ordinances. After all, the whole disagreement between Maimonides and the Ra’avad is only about whether you need a court greater in wisdom and number. And I’m asking: why is it connected at all to abolishing an ordinance? It’s strange.

Now, it could be that Rabban Yohanan ben Zakkai in particular—after all, there are many things that he enacted or abolished because of the destruction. He was the generation of the destruction; he stood at the head of our sages. Rabban Yohanan ben Zakkai came out of the besieged city, right? Now, there there was still hope that it would come back. The Temple was only destroyed. In other words, maybe it would be rebuilt in a few years, everything would be arranged, everything would work out, the war would end, we would get permission from the Roman emperor, and it would be rebuilt. So maybe because of that it really did fit into the category of abolishing ordinances, because after all he was right: if it was still relevant, it was only a matter of a few years, so meanwhile we continue, rebuild the Temple, and everything will be fine. It’s not right to stop it now just because there is—today we understand that for two thousand years the Temple has not been rebuilt, so it is obvious to us that this was some cardinal change and not just a short-term issue. So our anachronistic perspective says: wait, then what does this have to do with abolishing an ordinance? It is no longer relevant at all. But at the time of the destruction itself, there was certainly room to say: look, it burned, it was destroyed, okay, meanwhile let’s suspend this. In other words, who told you this was something so far-reaching and so long-term? I don’t know. Although, again, Rabban Yohanan ben Zakkai asked for Yavneh and its sages; he understood that something there had apparently been destroyed and that we had to move to the next phase. It’s not so simple.

I’m saying this because later, in future lectures, we’ll see that there are also among the medieval and later authorities changes where people change without a court greater in wisdom, and even without a court at all, because reality changed. And then we’ll have to distinguish between a case where “the reason ceased,” which is some technical matter, and a case where it simply has nothing to do with that at all—it’s a completely different reality. And there it may be possible to change things even without formal authority. And then that will bring us back to decorating the Jerusalem markets with fruit, because there it would seem to belong to the category of “it simply doesn’t apply at all,” and nevertheless the Talmud itself ties it to the annulment of ordinances, to the laws of annulling an ordinance. So maybe it could be that this is only because it was really the generation of the destruction itself. It was not yet clear how far-reaching the change really was. In any case, one further note regarding the Ra’avad: as I remarked here once, how does he know that Rabban Yohanan ben Zakkai was not that great? Decline of the generations. Decline of the generations? Apparently. I don’t know where he got it from. After all, Hillel the Elder had eighty students—greatest of them Yonatan ben Uzziel, least of them Rabban Yohanan ben Zakkai. So how can it be? No, Yonatan ben Uzziel, sorry, right. The least of them all—that’s the source.

But if that’s the reason, how can there ever in principle arise a court greater than an earlier one? Yes, that’s exactly what I’m saying. If his assumption is decline of the generations, then of course it’s absurd. Because then that means that this law about changing ordinances is a dead letter. Because in order to change an ordinance—not only according to the Ra’avad, even when the reason has ceased, the Ra’avad too requires greater wisdom and number—so this law of annulling an ordinance is basically a dead letter. Why? Because if you require a later court to be greater in wisdom, then by definition, due to decline of the generations, a later court is never greater. So a later court that is greater is, for the Ra’avad, like a square triangle. Therefore it is essentially a dead letter. But truly, in light of what I just now suddenly thought—and this Ra’avad has been with me for years—it could be that he really got it from that statement that Rabban Yohanan ben Zakkai was the least of them all. Maybe because after the destruction, the remaining generation was simply smaller. Why not assume that? When the Temple stood, it was much greater. Not because of a generation-by-generation decline. Not because of decline of the generations. There was a generation before the destruction and a generation after the destruction. We don’t know. I don’t know—maybe yes, maybe no. Why did you decide that at the destruction this is what happened? It could be that once a large part of the people—starting from that assumption, you then ask questions against Maimonides? After all, Maimonides clearly didn’t think that way, so what—

By the way, what does Maimonides really say? Fine, that already belongs to the next stage. If the reason changed, was Maimonides greater in wisdom and number? Rather, clearly Rabban Yohanan ben Zakkai was, at least in Maimonides’ eyes, apparently greater than his predecessors. Otherwise this wouldn’t—otherwise this wouldn’t be a difficulty against Maimonides, right? So that already tells us that even that statement, that Rabban Yohanan ben Zakkai was the least of them all, Maimonides apparently does not see that as saying that he was smaller than previous generations.

Wait, but Maimonides—what, Maimonides understands the plain sense in a completely opposite way? After all, the ordinance here was a positive ordinance of Rabban Yohanan ben Zakkai. If you had asked me, here the Temple is abolished, the ordinance of the earlier sages to put out fruit is a positive ordinance when there is a Temple. Now it’s not that Rabban Yohanan abolished it; he enacted an ordinance—he enacted an ordinance that one no longer has to. What difference is there? Of course there’s a difference. This is called change, because I wouldn’t have needed Rabban Yohanan ben Zakkai to cancel these fruits. So why do you need an ordinance saying it’s not required? Then just don’t do it, because it’s not required. Right, because there are no sacrifices. What? Right. So why do you need Rabban Yohanan ben Zakkai’s ordinance that it’s not required? So I’m saying, it’s semantics. Maimonides saw it as semantics. Meaning, he says that from his standpoint this is not—so what? So he says that this doesn’t belong at all to annulling an ordinance? The Talmud ties it to annulling an ordinance. The Talmud treats it as part of the discussion of annulling ordinances. So I’m saying: the disagreement between Maimonides and the Ra’avad—but the Talmud itself starts the connection here to the question of annulling ordinances. “Adorning the Jerusalem markets” is a passage in Beitzah. So I’m saying that within Maimonides himself, apparently he understands that statement that Rabban Yohanan ben Zakkai was the least of them all not necessarily to mean that he was smaller than earlier generations, because otherwise the passage would indeed be difficult for Maimonides.

All right, we’ll see. Maybe he really does learn it from there, because if the Ra’avad really learns it from the very idea of decline of the generations, then it really is absurd, and it turns this law into a dead letter. That’s one point. A second point: I return to the relationship between the two laws, Law 1 and Law 2. Why is there really a difference between changing Torah-level law and changing rabbinic law? On the face of it, it looks like one of those cases where the Sages made their words stronger than Torah law. Precisely because the status of rabbinic law is lower in halakhic standing, sometimes the Sages reinforce it more than actual Torah law. But it’s not certain that the difference is between Torah and rabbinic law. Even in Maimonides’ language it’s not “rabbinic” and “Torah”; it’s whether it is a decree or an ordinance. In other words, there is a decree or an ordinance or an interpretation. So a decree or an ordinance is Law 2. Yes, yes—“they decreed a decree or enacted an ordinance,” that’s his language. And all that is Law 2. And in Law 1 it is an interpretation, a Torah-level law, from the Torah. Not always. An interpretation or exegesis of the Torah. In Law 2 there’s no mistake and no error; they decreed a decree because they saw that this is what was needed. What is the ordinance? What are you coming to do against it? In Law 1 it’s an error: they say the previous generation made a mistake. No—if the reason has ceased, then here too they are saying that the previous generation was right. If the reason has ceased, you’re right. But if the reason hasn’t ceased, then you say one shouldn’t make this ordinance or decree, but you still say there’s no error. Therefore I say that in Law 1, according to the Ra’avad, there really is a difference between whether or not the reason has ceased, and that follows exactly from this reasoning: when the reason has ceased, I am not coming to dispute the earlier ones at all. So what is the problem? Why do I need to be greater than them? I am not coming to dispute them; reality changed. So the court has to determine it; not everyone determines it for himself. But it’s not that I am going against someone and therefore have to be greater than him. But Maimonides says it is the same thing.

But what is the difference between Torah-level and rabbinic? Why in Torah-level law do we not require greater wisdom and number, while in rabbinic law we do? So as I said earlier, the view folded into this is that in rabbinic law, sometimes the Sages make their words stronger than Torah law. They reinforce it more so that we won’t come to treat rabbinic law lightly. But it could be that there is something deeper, more fundamental behind it. When you interpret the Torah differently, then from your perspective this is what the Holy One, blessed be He, wants. When this generation fulfills what the court of this generation determined, it fulfills it not because the court of this generation determined it, but because from my perspective this is what the Holy One, blessed be He, demands of us. The current court is the authorized body to determine what the Holy One, blessed be He, demands of this generation. From my perspective it is the representative of the Holy One, blessed be He, here. And that is not the point—the source of authority by virtue of which I fulfill it is the Holy One, blessed be He, not the court. Okay? Therefore, a later court that comes to change a Torah-level law of an earlier court is not confronting the earlier court head-on at all. On the contrary, not head-on. I am not going against the authority of the earlier court, because I am saying that the Holy One, blessed be He, did not say that; He said this. Therefore, if we want to do what the Holy One, blessed be He, said, we need to do this. So if from our standpoint Jephthah in his generation is like Samuel in his generation, then from our standpoint the current court is the indication of what the Holy One, blessed be He, wants, even though this goes against previous generations, courts of previous generations.

And with rabbinic law it is not so. With rabbinic law, the ordinance is not an interpretation of what the Holy One, blessed be He, wants. We fulfill it because of authority. We fulfill it because the court has authority, and what the Sages say must be fulfilled. Now if a later court changes the ordinance or decree of an earlier court, then it is basically going directly against their authority. It is not saying that the Holy One, blessed be He, said something else; it is saying: I disagree with you; there is no need to do what you say. In order to say that, you need a court greater in wisdom and number. Because if you are going against previous authority, then you need to be greater than they are. That is what Maimonides says. It’s not a question that the Sages made their words stronger than Torah law. Rather, the question is: what is the nature of the change?

And that is what matters here for us—we’ll see it later. What is the nature of the change? Is this change going against the authority of the Sages? Then you need to be someone greater than they are. If this change is not going against anyone’s authority, because I don’t observe the original law due to the authority of the Sages—I observe it because that is what the Holy One, blessed be He, said—and now it has become clear to me that He didn’t say that, but rather said this, then fine, I’ll do this. It is still clear that there is some clash here because we are disagreeing with the previous generation. But the authority is the authority to interpret what the Holy One, blessed be He, said. Yet that is an interpretive authority, where in the end you observe the law because the Holy One, blessed be He, said it, not because the court said it. So in such a case, the Jewish law does not require the later court to be greater in wisdom and number, because you are not confronting the authority of the first court head-on. And that basically means that these two kinds of changes are not just Torah-level versus rabbinic-level; rather, they are a different mechanism of change. Is it a different interpretation, or is it a direct confrontation with earlier authority? That too we’ll continue to see later on.