Authority and Change in Halakha, Lesson 11
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- [55:41] Freezing Jewish law in a changing situation
- [57:30] Moral law and freezing
- [59:06] Haredi police and freezing
- [1:00:36] Decrees and testing the public
- [1:01:47] Jewish law 7 – acceptance and annulment
- [1:08:04] Public feedback and Jewish law
Full Transcript
[Rabbi Michael Abraham] A bit about changes in Jewish law, and we were really dealing with the three—I spoke and gave some kind of initial foundation. This assumption that the Torah is supposed to be eternal, that’s really what stands in the background of this discussion about change. Because on the face of it, change means that something here is temporary, meaning it’s not binding, it’s not forever. It’s something that takes on a form and sheds a form, and that’s what lies at the basis of the instinctive resistance to change. Basically, when a person who belongs to the halakhic / of Jewish law world approaches the issue of change, the initial tendency is to resist. And you can definitely understand that. It’s not like in other places where people criticize because it’s conservatism and you need to be more open and so on, although even there too I think there are good reasons—Thomas Kuhn already talks about this. But here, in this context, there’s some assumption—let’s call it theoretical—that underlies the whole matter. It’s not just some conservative tendency of people who don’t like changes, rather there’s an assumption here that if the Torah was given at Sinai and the Holy One, blessed be He, said it, then it’s not supposed to undergo changes. Meaning, the Holy One, blessed be He, gives something that’s supposed to fit the world He created, and if we’re making changes, that means something here doesn’t fit. So how can that be? Do we know better than the Holy One, blessed be He, what needs to be done? Therefore, in this context it’s really a question of—the concept of conservatism has taken a lot of criticism for quite a few years already, but my feeling is that in recent years it’s suddenly getting a tailwind. Maybe I didn’t talk about this here, just a few sentences. Even conservatism in many contexts—conservatism in the legal world, conservatism in the historical world, in historical research. Conservatism in all kinds of contexts, mainly in the social sciences of course, was and in many places still is a derogatory term. Someone who holds conservative views risks his life—his professional life, I mean. In other words, you won’t get a position in certain places if you have a conservative worldview. I know quite a few examples like that; people have told me some really blunt things. This kind of thing, like any extreme activity or whatever, violent in a certain sense I would say, creates a reaction. It creates a reaction, and therefore little by little conservative voices are being heard—but not just conservative, proud conservative voices. No longer willing to stay in the closet. The first time I encountered this phenomenon was when I was in Yeruham, deep in Yeruham. I think it was more than twenty years ago. I read in the newspaper that Steinitz, Yuval Steinitz, still an anonymous figure back then, and someone else had set up some movement for right-wing academics in the closet. And they did a tour, they came to Kibbutz Tlalim near Yeruham. He came from the left. Yes, yes, this was already after—he apparently underwent some kind of change. And they established some movement, he and some other guy there, I don’t remember his name. A group for academics with a conservative worldview—right wing and conservatism, we talked about this once. Not necessarily political right wing, really, although in Israel it’s very identified and very dominant with the political right. But in principle in general, a conservative worldview also in the legal context—Elimelech Westreich and all kinds of complaints about this matter. Meaning there are things you just can’t say—a jurist, for those who don’t know. In any case, they established some movement, and the movement had lectures around the country and in kibbutzim and academic institutions. And little by little—that really was the beginning, I think. After that Pollak—I met him at the Weizmann Institute, Eli Pollak, a chemist. He established some movement, I forgot what they were called, these right-wing academics. Lately it’s been less active because apparently it’s less of an issue in terms of the general feeling; you hear less about them.
[Speaker D] But that too.
[Rabbi Michael Abraham] No, it’s connected both ways. I said, the main expression in Israel is specifically in the political context, but it’s both. National and economic resilience—so it’s not for nothing that it’s called that. Even though you mainly hear them on the diplomatic-security issue.
[Speaker D] No, but economic resilience is connected, I don’t know, to things you hear for example in the context of single-parent families or something like that.
[Rabbi Michael Abraham] No, resilience—what they call economic resilience means capitalism. Capitalism, yes.
[Speaker D] Fine, that’s not conservatism.
[Rabbi Michael Abraham] It is conservatism. Capitalism is conservatism. Capitalism is conservatism by definition. It’s more conservatism than political right wing. In Israel it’s connected to the political-diplomatic right, but in the United States what is it? Republicans. Republicans are economic conservatives. Economic, religious—in other words, in contexts less security-related. Let’s say there is the security issue, but less so.
[Speaker D] I didn’t say it was a security issue, but there are conservative views about other things, not necessarily capitalism.
[Rabbi Michael Abraham] But originally I think the division between conservatives and non-conservatives is more on the economic aspect. Okay, never mind. In any case, the fact is that this division—we once talked about right and left—that this division, with all the ideas under those headings, splits with a high correlation. Someone who is right-wing in the diplomatic-security context will generally be right-wing in the economic context too, and vice versa. I’m saying again: lately the picture is becoming more complex and there are already shades that mix these sides, and still the correlation is a high correlation. There was even in Makor Rishon some time ago, I think, an entire issue devoted to this question: why Religious Zionism tends toward economic conservatism, the economic right. Someone there criticized the lack of social sensitivity they display, even though they’re supposedly committed to the ideas of the Torah, and the Torah is of course socialist—that’s obvious—and therefore how can it be that they tend toward a conservative or right-wing economic direction. All the nonsense from beginning to end was in that issue. But usually it’s part of the same thing, because people choose to see in the Torah what suits them in these areas at least—maybe in others too. But I think here it’s much more so, because here there really is nothing. There’s nothing. Meaning, you’re inventing it. What you see in the Torah in these areas, a great majority of what you see, you’re inventing. Fine, you can bring a note from here and a note from there, make some interpretations, and it becomes socialist or capitalist or whatever you want. I think the Torah’s lack of statement is itself capitalism—but not because it says so, rather from what it doesn’t say. There were young people once—the Secretary General of Bnei Akiva came from the religious kibbutz movement. Bnei Akiva is a socialist movement. Bnei Akiva is a distinctly socialist movement.
[Speaker C] Obviously, Torah—
[Speaker E] And labor.
[Rabbi Michael Abraham] Today that has already changed because it changed from below.
[Speaker C] Maybe because the consideration was the opposite—then they needed a Secretary General on salary and this is salaried and all that; where would they bring one from, the private sector? They’d bring one from the kibbutzim, where it’s free.
[Rabbi Michael Abraham] Doesn’t matter, but in practice that’s what it was. That may be the reason, but in the end, bottom line, it was an entirely socialist movement. There was a certain struggle of the grassroots against the establishment of the movement. In my time in high school there were tough struggles. High school kids went to the national convention of Bnei Akiva and the world convention, trying to get speaking rights. The revolt of the hesder yeshivot began—they wanted them to be recognized as something legitimate too, because there were only Nahal core groups. Going to a hesder yeshiva wasn’t considered the best thing; it was like second level, second preference. At some point it began to be otherwise, and that too was a concession, and there was a fierce battle there. And I think the right came from below in that context, not from above. But in any case, part of this process is that some kind of right-wing voice is beginning to be heard also in intellectual debates. One expression of this is, for example, the Shalem Center in Jerusalem. The Shalem publishing house and the institute—Hazony, the Hazony brothers who founded it—this is their declared purpose, meaning to create some sort of alternative to academia, which in these areas of the social sciences and what’s around them is overwhelmingly clearly left-wing, and to translate relevant works that in Israel people didn’t know at all. There were no translations of classic works advocating a right-wing direction—they simply weren’t translated. There’s something I once heard—admittedly it’s not really related to right and left but more to religious and non-religious, or Bible and non-Bible, though there is a connection. There was a Jew named—what was his name—the Russian doctor Velikovsky. Immanuel Velikovsky, do you know him? A character from the movies, really fascinating. He was a Russian Jewish doctor who developed various theories that the Bible was all historical truth; he was completely secular, no connection to Judaism, and he went to war with theories about research on the ancient Near East. He shifted the dating of ancient Near Eastern history by 600 years. Shifted it—he proposed that the dating accepted in historical scholarship was not the right one, and then he showed that all kinds of things simply fall on top of one another like a puzzle. Meaning, it solves a lot of problems that remained open in historical research. He published a series of books. He was a friend of Einstein—he became something of an acquaintance of Einstein, I don’t know to what extent, that’s how he always writes, but he came to Princeton because no one listened to him. He came to Princeton to speak with Einstein at the Institute for Advanced Study where Einstein sat, and he said this and they spoke a bit, and Einstein writes about him too; there was correspondence between them. It turns out they boycotted him, and threats came to publishing houses that they mustn’t dare publish his book. Not here in Israel, by the way—abroad, because he didn’t write in Hebrew, he wasn’t Israeli, he was Russian. Now at some point he published the books himself. Somehow he managed; the world is big, you can’t stop it completely. And it caused a lot of noise. To this day there are many arguments—people agree, don’t agree, fine, there’s room to deliberate the actual things he says. I myself never got into the details, so I can’t say exactly. But in Israel it wasn’t translated at all. In Israel you can’t translate something like that at all. Also because of the size—there’s not enough room here for too many voices. The fashion is much stronger here than abroad, because once you take over, I don’t know, the 50 central academics in those fields—because that’s what there are in Israel—then you’re done. Meaning, there’s no other way to do it. And in the United States, go take over two thousand people or two thousand positions or whatever, many more basically. It’s much harder, certainly in Europe. And here in Israel it was translated underground and came out—I heard this from his daughter, Shulamit Kogan. He had of course died long before. Shulamit Kogan, whose husband was a neurologist living in Givatayim, and she came to give a seminar at Bar-Ilan when I was there in physics. She came—he came, her husband came—and he gave a seminar there about Velikovsky’s theories. And he told a bit—they started publishing the books; Shulamit Kogan was the one who translated and published them. What?
[Speaker D] So it wasn’t all that underground if he was giving a seminar about it?
[Rabbi Michael Abraham] No, first of all it was in physics. And second, this was indeed at some stage after he had already begun to publish the books, when he fought for it and no one agreed to publish the books. Now, the books are interesting—whether it’s right or wrong is another issue—but do publishers care whether it’s right or wrong? It’s interesting, it’s an interesting voice, surely there’s some demand for that voice. He wasn’t—there was nothing, you couldn’t succeed. They said there in the lecture—he said there in the lecture—that no, they didn’t allow publishing houses to bring out those books. They threatened them with various threats, really like in the Haredi world. You know the stories about the Frankel Maimonides edition? When they got to the Order of Zeraim, they included references to the writings of Rabbi Kook. After all, he’s one of the leading voices, at least in that area of agricultural laws. And Rabbi Blumentzweig did the work, part of the work—from Yeruham, the head of the yeshiva in Yeruham. He took part in editing this volume. At some stage they received threats at the editorial office, and I know this from someone who worked there. They were told: if you publish this with Rabbi Kook, we will put a ban on the Maimonides edition and no one will buy it. They decided to remove the references to Rabbi Kook. You won’t find them—there are no references to Rabbi Kook in Frankel’s Order of Zeraim. Rabbi Lichtenstein withdrew his work; he didn’t agree that they should publish it. And then in Merkaz they published some alternative Maimonides in order to…
[Speaker B] Did they also decide to remove the Volozhin Yeshiva from history? What? They decided to remove the Volozhin Yeshiva from history.
[Rabbi Michael Abraham] From history? Yes.
[Speaker B] You know they removed a lot of things from history, also in the Volozhin Yeshiva.
[Rabbi Michael Abraham] Read—there’s a researcher, Shlomo Naeh? Not Naeh, Stampfer, Stampfer. He did various studies on the Volozhin Yeshiva and exposed many things they removed from history. There were all kinds of interesting things in the Volozhin Yeshiva. In any case, just things they inserted into history. One of the myths is about returning the keys to heaven when they were threatened with closing Volozhin, and he says it never happened—we grew up on that in Bnei Brak, I mean on that myth. In any case, never mind. Bottom line, this whole business—I really only came to say that some kind of conservative counter-voice has been created, some sort of counter-conservative scholarship, and a conservative theory is taking shape. And now Chaim Navon, of course, very much identifies himself under this heading of conservative. But in the conservative world this is divided into two shades that are often hard to distinguish. One of them is the psychological shade. There is a psychological conservative—just someone who doesn’t like change, who has an instinctive resistance to change. That’s temperament, a matter of personality. Some people have it, some don’t. And then there is conservatism as an ideological view. Conservatism as an ideological view is a view that believes there is some kind of common wisdom that has developed, and if you go with what tradition says you’ll probably not go wrong, or go wrong less. New inventions are something that who knows whether they’ll work or not. There’s a kind of distrust of innovations, but not in the sense of psychological conservatism, rather in the sense of a worldview. The assumption is that the wisdom accumulated over the generations probably has real substance, not for nothing. Now, this view can of course lead to many things, from acupuncture to: if several billion Chinese have been doing this for two thousand years, it must be right. Well, maybe yes and maybe no. But there are such views; that’s ideological conservatism. Now all this—I’m closing the parentheses, I don’t know how I got into all this. All I wanted to say here is that in the halakhic / of Jewish law context, when we speak about the question of conservatism, there is of course a third aspect, which is neither psychological conservatism nor ideological conservatism, but conservatism because if the Holy One, blessed be He, said it, then it’s probably correct and there’s no reason or logic to change it. Meaning, that’s part of the ideology. Therefore here it’s not supposed to be a question that is ideologically disputed or dependent on personality. But here too it depends—both on personality and on ideology. And why? Because as we’ll see later, not every change really means that the Holy One, blessed be He, was wrong, or that it somehow can’t exist within a religious conception.
[Speaker D] Why is that different in principle—at least from the standpoint of the assumption that the Torah is eternal and the Holy One, blessed be He, is certainly right in itself—why is that different in principle from physics? In physics too, the accepted assumption at least is that the laws of physics don’t change.
[Rabbi Michael Abraham] Certainly they don’t change—but who said the early authorities (Rishonim) were right?
[Speaker D] Same here. Whoever changes has to substantiate it.
[Rabbi Michael Abraham] You’re getting into the last sentence I said—that not every change means the Holy One, blessed be He, was wrong. Okay? That’s what I’m talking about.
[Speaker E] But what about the fact that the Holy One, blessed be He, Himself said that He grants these authorities to the leaders of every generation—each generation with its own leader—that he will interpret and continue the matter? He can change it?
[Rabbi Michael Abraham] Continue the same matter, continue—
[Speaker E] The same matter.
[Rabbi Michael Abraham] I’m at the starting point right now. The starting point is that if the Holy One, blessed be He, said something, it’s probably correct. Okay? Beyond the question of authority, I’m not speaking now about authority but in the substantive sense. Even if I have authority, I don’t want to do something incorrect. I may have authority, but if it’s incorrect—soon I’ll get to the question of authority too.
[Speaker E] And He Himself also said that even if they tell you that right is left—
[Rabbi Michael Abraham] No, it doesn’t say when they tell you that right is left. What? It says do not deviate right or left. The Sages interpret it: even if they tell you that right is left and left is right, and even that is a dispute in the Babylonian Talmud and the Jerusalem Talmud; it’s not all that clear. But I’m saying, the conservative starting point in this discussion is stronger than the two aspects I spoke about before. Because it’s not only psychology, and it’s also not only a worldview of common wisdom, a worldview that the many are not wrong. That’s not the point. The point is that the Holy One, blessed be He, is not wrong. It’s not a matter of this or that person not being wrong. That’s the starting point. On the other hand, last time we read Maimonides, those first three Jewish laws in Laws of Rebels, chapter 2, and there we saw that nevertheless Maimonides speaks very clearly about change. And despite the forceful statements about the eternity of the Torah that Maimonides himself writes, he himself speaks about changes very clearly and openly. He distinguishes in Jewish law 1 and Jewish law 2 between changing a Torah-level / of biblical origin law and changing a rabbinic / of rabbinic origin law. And we saw that really the problem of change is mainly a problem of authority and not a problem of substance, which itself says something. And that basically means that on the substantive level there is no problem with changes; that’s not the point. You only have to see that the one doing it is the body authorized to do it. Who is the authorized body? In Torah-level / of biblical origin laws, if something was established by a vote, you need another vote to permit it. So if something was established by the Sanhedrin, you need a Sanhedrin to change it. And that’s it, regardless of the relative wisdom and number between the two bodies. In rabbinic / of rabbinic origin laws, the Sanhedrin that comes later to change it must be a Sanhedrin and must be greater in wisdom and number. Maimonides explains that “greater in number” means that the sages of the generation are counted together with those sitting in the court itself—in other words, they count a broader count than just those sitting in the court; the court itself is always seventy-one.
[Speaker F] What about interpretation of the plain meaning? Which category does that enter? Torah-level / of biblical origin. Because you said derash is like words of…
[Rabbi Michael Abraham] No, I didn’t say derash. I said interpretation as opposed to legislation. Interpretation also includes derash, although according to Maimonides derash is words of the Sages and seemingly should have belonged to Jewish law 2—but no. And therefore in Maimonides’ view it’s also not Torah-level / of biblical origin; it’s not the distinction between Torah-level / of biblical origin and rabbinic / of rabbinic origin. It’s the distinction between interpretation and legislation. Where derash is basically, in this context, treated as interpretation. Why? Because derash, unlike rabbinic enactments—even according to Maimonides, for whom it is a rabbinic / of rabbinic origin rule—is not the result of legislation because the Sages decided this is reasonable, but rather they extract it in some sense from the verses. In what sense? So we once spoke about this—that it’s expansion and not exposure, but the anchor is the verse. In other words, not the authority of the person. And as I explained last time—maybe this sharpens the answer to your question—last time I said that usually the standard explanations for the distinction between Jewish law 1 and Jewish law 2 in Maimonides are that the Sages reinforced their own words more than those of the Torah. Sometimes the Sages strengthen rabbinic law even more because they fear it may be undermined precisely because it has less force than Torah law. But here my sense is that there’s something more substantive, not just a technical matter. Because when you change a Torah-level / of biblical origin law, you’re basically interpreting the verses differently. So you’re not acting against the authority of the earlier authorities. They said the Holy One, blessed be He, says to do it this way, and you think the Holy One, blessed be He, says to do it that way. When I do what they say, I’m doing what the Holy One, blessed be He, says according to the interpretation of the court of my generation. If I’m mistaken, I’m not mistaken in rebelling against the earlier court; I’m mistaken in relation to the Holy One, blessed be He. Okay? And the Holy One, blessed be He, Himself said—as you said before—that the court of my generation is the one supposed to interpret what He means to say for us, for our generation. But when I go against a rabbinic / of rabbinic origin law—legislation, not rabbinic / of rabbinic origin law but legislation that the Sages enacted, enactments, fences—in that situation the later court is acting against the authority of the earlier court. Meaning, the law draws its force not from the fact that the Holy One, blessed be He, said it, but from the fact that the Sages decided this is what should be done. If you go against the authority of the earlier court, you need to be greater in wisdom and number. And therefore here the distinction is not only a question touching halakhic force. If it were simply that the Sages reinforced their words more than those of the Torah, then I would attribute it to halakhic force. That which has less force probably requires stronger conditions in order to change it. That would only be a question of force—whether it is rabbinic / of rabbinic origin or Torah-level / of biblical origin. So if according to Maimonides laws learned from derashot are rabbinic / of rabbinic origin, I would expect that to be classified under Jewish law 2, that the requirements for changing derashot would be stricter because they are rabbinic / of rabbinic origin laws. But Maimonides classifies it in Jewish law 1. And this probably—again, I hadn’t thought about this last time, but in light of your question—maybe it strengthens my claim even more that we are not dealing here with a question of force, of strengthening something with lower halakhic force. Rather, we are dealing with a substantive claim. And in the substantive sense there is a great similarity between derashot and ordinary interpretation, because you are interpreting a verse. You are not creating a law on your own because you think it’s correct, rather you think that’s what the verse says. So indeed it belongs in Jewish law 1 and not in Jewish law 2. We also saw within this the dispute between Maimonides and the Raavad in Jewish law 2: what happens if the reason for the enactment has ceased. If the reason for the enactment has ceased, then I said, seemingly there would have been room to classify that under Jewish law 1, even though it’s a rabbinic / of rabbinic origin law. Why? Because according to my substantive explanation, you are not acting against the authority of the earlier court. You’re simply saying the circumstances are now different, and what that court said is no longer relevant; if it were alive today, it too would agree with me. So here there was room to compare it to changing a Torah-level / of biblical origin law, because I am not really acting against the authority of the earlier court. So here there was room to say that you do not need another court greater in wisdom and number as in rabbinic / of rabbinic origin laws. But Maimonides argues that even here it must be greater in wisdom and number. Okay? That’s on the one hand. But the Raavad, who disagrees with him, really says no. The Raavad says that if the change is based on changed circumstances—meaning if the reason has ceased—then there is no requirement of greater wisdom and number. And again, behind this really sits this distinction: which authority are you acting against? Against the authority of the earlier court, or against the interpretation they gave to the Torah. And you are really talking about what the Torah says, not whether to obey a court or not obey a court. It’s a question of how one obeys the Holy One, blessed be He, not whether one obeys a court. And therefore the Raavad is seemingly right. Maimonides here nevertheless says: in rabbinic / of rabbinic origin laws we don’t make such distinctions. Either because he thinks it’s not certain that the circumstances really changed—who says that distinction itself is correct? That too is a distinction that requires authority. Or perhaps it’s a kind of lo plug, a desire to standardize all rabbinic / of rabbinic origin laws so there won’t be chaos here. In any event, Maimonides says otherwise.
[Speaker D] Yes. It can actually be understood precisely against the background of the distinction between authority and substance. Meaning, if the force of a rabbinic / of rabbinic origin law stems from the fact that the court established it, regardless essentially of whether it was right—not because it’s correct, not because of whether it was right—and if it had erred, it would still have been valid. And I’m saying in the same way it could be that it’s—
[Rabbi Michael Abraham] Yes, but the question is whether it established it also for circumstances different from the circumstances of its own time. Because as you said before, there’s some connection to their motivations, to why it’s also correct to do this. And if circumstances changed, then it isn’t correct, and they themselves would agree today.
[Speaker D] They would agree, but that they would agree—again, that’s the Raavad’s opinion. But from the other line of reasoning one could say: true, they would agree if that happened, but that doesn’t matter. They would agree, but in practice what they established was this law. And once they established it, this law has independent institutional force; it’s no longer dependent on the reason they made it. And therefore in order to annul it you need some court with sufficient authority. Without that, then it doesn’t matter why they did it and that it’s no longer appropriate. Okay.
[Speaker G] And in Jewish law 2 he writes, “The Great Court that derived by one of the hermeneutic principles,” he doesn’t relate to the plain meaning.
[Rabbi Michael Abraham] Right. I said, because it comes as one block like that. If they derive using the principles—according to Maimonides, by the way, in several places—when he says “derived by the principles,” that means derashot of the plain meaning, meaning they extracted something from the verses. And that sharpens even more that he doesn’t even bother to say, what about the plain meaning, because in his view derashot are words of the Sages altogether. So if he says it about that, then it’s obvious. Meaning any interpretation, including a kind of interpretation whose product is essentially a rabbinic / of rabbinic origin law. That’s how it seems to me.
[Speaker D] Maybe the assumption is that the plain meaning never changes, since from the outset these are things written there; it’s not the result of a court.
[Rabbi Michael Abraham] Yes, well, but it’s obviously clear that there are interpretive issues that are not derash. There are interpretive issues that are not derash, and a dispute can arise about them. In Maimonides, somehow the question of what can become disputed and what cannot is not simple. But Maimonides thinks that derashot, from his point of view, are the whole collection of interpretive rules in general when he speaks about them. I think you can see that in several places. So that’s Jewish law 1 and 2 that we saw last time. I don’t remember whether we read Jewish law 3. Let’s look quickly; it’s just a side note. “When does this apply? To matters they did not prohibit in order to make a fence for the Torah, but rather like the rest of the Torah’s laws. But things that a court saw fit to decree or prohibit in order to make a fence—if their prohibition spread throughout all Israel, another Great Court cannot uproot them and permit them, even if it was greater than the first.” So here this is a third level. Meaning, there are things that even if you are greater in wisdom and number, you still cannot change. Meaning, there are things any court can change; there are things where you need to be greater in wisdom and number; and there are things you can’t change at all. The source of this is the Talmud. This is the Talmud on gentile wine there—there is a long discussion there, in Avodah Zarah I think, I don’t remember—that if these are things prohibited as a fence, those cannot be changed at all. And by the way, the Raavad does not comment here. Meaning, he seems to agree with this. Even though he disagrees regarding a case where the reason has ceased—what happens if it was made as a fence for the Torah but today that fence is no longer relevant? I don’t know exactly what he means. I think Maimonides is not talking about that in Jewish law 3. After all, there can be things made as a fence—for example, they forbade eating poultry with milk lest one come to eat meat with milk. That’s a fence. Okay. And let’s say there is no longer any meat. Vegetarians will forgive me. I just heard on the way that in the Muslim world now, during the Festival of Sacrifice, there are vegetarians rebelling against this whole thing; there are vegetarian restaurants. Very interesting. They’re always portrayed as some kind of faceless monolithic block, but there are, yes, there are all sorts of processes happening there too, just as here. In any case, so there’s no more meat. Then there’s no reason to forbid poultry with milk because of meat with milk, right? Now on the other hand, this was made as a fence. And something made as a fence—the…
[Speaker B] Why does it matter whether it spread or didn’t spread throughout all Israel?
[Rabbi Michael Abraham] We’ll see that later. Every decree of a court has to spread throughout all Israel. And that’s not even just a condition for the impossibility of changing it; it’s a condition for the validity of the ruling itself.
[Speaker B] But when he brings it specifically here, specifically in the context of…
[Rabbi Michael Abraham] No, no, he brings it later more fully.
[Speaker B] Specifically in the context of…
[Rabbi Michael Abraham] He qualifies it here because later he—no, I’m saying, it’s here because here he’s speaking about annulment. Later he’ll describe it, and there he’ll show it as a condition for the force itself.
[Speaker B] No, no, also in Jewish law 2, section b: “A court that decreed a decree or enacted an enactment or instituted a custom, and the matter spread throughout all Israel.”
[Rabbi Michael Abraham] Yes, it’s simply a condition saying that it’s valid.
[Speaker B] No, no, I—
[Rabbi Michael Abraham] I’m with you. He says it there too. He’s simply saying it’s valid; otherwise it’s not valid.
[Speaker D] And is that validity or is it protection? What? Is it validity or protection?
[Rabbi Michael Abraham] No, it’s validity. Wait—if it didn’t spread, then it isn’t valid?
[Speaker D] At the time they decreed it, before most of the people started observing it? After all, some time has to pass until most of the people… no, obviously.
[Rabbi Michael Abraham] You need to do it because the court established it. But after it turns out that the enactment didn’t spread, or the decree didn’t spread, then it’s no longer valid. When does that happen? The court probably also has to determine that.
[Speaker G] Maybe it’s like when a person vows a vow upon himself and afterward the reason for the vow becomes irrelevant—like someone who accepts some stringency on himself?
[Rabbi Michael Abraham] Same principle, but he still needs an opening—or in other words, release. Unless, unless, say, there are certain circumstances. Rabbi Ovadia writes in a responsum—I think it’s straightforward logically, because people have asked me this more than once—what happens if someone started doing something three times, which counts like a vow, counts like a vow, but he did it because he was sure that was the law, but it’s not the law at all, just some custom or other? So if he thought it was the law and that’s why he did it, then it isn’t considered a vow. You don’t need to go to a sage; it’s not an opening that a sage has to open. You can simply stop on your own. You don’t need release of vows for such a thing. But an actual vow—that’s exactly what they use an opening for. They ask: what would have happened if you had known such-and-such? There’s an opening and there’s regret; let’s talk about opening. So that’s a little different between a custom done three times and a vow, but even in the context of vows this argument has significance. In any case, what I’m saying is that in Jewish law 3 it seems to me that Maimonides is not speaking about things made as a fence where the circumstances have changed. If the circumstances changed, then things made as a fence—I think at least—can indeed be changed. Under what conditions? It could be that it requires a court greater in wisdom and number as in Jewish law 2, according to his view. According to the Raavad, any court. Okay? But it can be changed. A thing made as a fence—what Maimonides means to say is: if the circumstances have not changed, but a later court disagrees with the earlier court. Okay? Here he says that even if the later court is greater in wisdom and number, it still cannot change it. It still cannot change it if it was made as a fence, whereas an ordinary rabbinic / of rabbinic origin law can be changed if the later court is greater in wisdom and number. But if the circumstances changed and the fence is no longer relevant, I don’t know—but I think that’s not what’s written here. That’s not what he’s talking about when he says it can never be changed. And that has practical implications for many things. In light of this, think about why the Raavad doesn’t disagree. He doesn’t disagree because maybe it isn’t relevant from his point of view. Since where circumstances have changed, according to the Raavad there isn’t any additional requirement at all that the court be greater in wisdom and number. So in any case he doesn’t need to qualify it and say that in a matter made as a fence this won’t help, because there is no such requirement. And therefore the fact that the Raavad doesn’t disagree here does not necessarily mean he accepts this claim. I don’t know, maybe. I’m saying all this is really a bit obscure here, so I can’t prove it. In any event I think that… okay, we’ve left the burden of proof there. Good question. You can interpret Maimonides this way or that way. Jewish law 4: “And a court has authority to uproot even these matters temporarily, even though it is smaller than the first, so that these decrees should not be more severe than the Torah’s own words, for even words of Torah any court may uproot as a temporary ruling. How so? A court that sees a need to strengthen the religion and make a fence so that the people not transgress the words of Torah may strike and punish not according to the law. But they do not establish the matter for generations and say that this is the law. They act according to what the time requires. Just as a doctor cuts off this person’s hand or foot so that his whole body may live, so too a court instructs at times to transgress some commandments temporarily so that they all may be upheld.” “So that they all may be upheld” means, so that the whole Torah will be kept—that you sacrifice one limb for the sake of the whole body. “As the early Sages said: Desecrate one Sabbath for him so that he may keep many Sabbaths.” There’s a very interesting point here, I think, which opens the door to many things. I think this Jewish law has not received enough attention. Maimonides is basically speaking here about a court that changes from rabbinic / of rabbinic origin to Torah law, or uproots Torah law temporarily. For example, what are they doing? They determine not to blow the shofar on Rosh Hashanah that falls on the Sabbath. There is a positive commandment of Torah law to blow the shofar; according to the Babylonian Talmud, that includes Rosh Hashanah that falls on the Sabbath. But there is a rabbinic enactment, a decree and enactment, not to do so. Okay? So Maimonides says: a court can uproot matters from the Torah temporarily—by passive omission, by active commission, he doesn’t go into all the details—according to what the time requires. This is called acting not according to the law. Just as it can punish not according to the law, it can also establish rulings that are not according to the law. Here the authority is not only authority of punishment; rather, it is also authority to establish rulings. Pay close attention: the authority of a court to punish not according to the law is agreed upon—Civil Law, section 2, that’s straightforward. But Maimonides says this is not something specific to the area of punishment. On the contrary, he brings the area of punishment as an example of a broader principle. A principle that a court that sees that there is a need to alter Torah law temporarily can do so. Not only can it do so, there is no need for any limitation—that it be greater in wisdom and number than the previous court—it can even be smaller. And his proof is the most interesting proof. Look again at the first line: “so that these decrees should not be more severe than words of Torah, for even words of Torah any court may uproot as a temporary ruling.” So certainly in rabbinic / of rabbinic origin matters—that’s a kind of a fortiori argument. But now we saw that changing a rabbinic / of rabbinic origin law is harder than changing Torah law. What—
[Speaker D] What do you mean? It’s different? You said that changing Torah law… no, changing rabbinic / of rabbinic origin law is harder than changing an interpretation of Torah law. That’s not the same comparison at all. What do you mean? Changing rabbinic / of rabbinic origin law is harder than changing an interpretation of Torah law. You can’t change an interpretation of rabbinic / of rabbinic origin law, say—there’s no problem with that. Let’s say one court decreed a decree, another great court—
[Rabbi Michael Abraham] Great—
[Speaker D] And a generation later, a smaller court faced a question about how to interpret the decree in a certain case and interpreted it one way, and a later court that was even smaller—I assume it still can change it, etc.—and it says the original decree should be interpreted differently, it still remains able to.
[Rabbi Michael Abraham] I can’t tell you. It’s not entirely clear to me.
[Speaker D] It could be that the comparison is incorrect. Meaning, it’s not that rabbinic / of rabbinic origin words are stronger because they can’t be changed, but because here we are talking about uprooting the words of the Torah themselves from the outset, not about saying the interpretation is different.
[Rabbi Michael Abraham] Exactly. Meaning, that’s the answer to the question. Basically what I want to say here is that Maimonides in Jewish law 4 is speaking about a different mechanism. Maimonides in Jewish law 4 is not speaking about changing interpretation or saying that the Torah says something else. No—the Torah says the original thing. I am now ruling not to do it, even though that is what the Torah says.
[Speaker B] He says to uproot it. To uproot it as a temporary ruling—there’s a need right now, so they uproot it. Exactly.
[Rabbi Michael Abraham] And there—
[Speaker B] Then certainly words of Torah take precedence over rabbinic / of rabbinic origin law—
[Rabbi Michael Abraham] So in fact the a fortiori argument he makes—that if at the Torah level you can do this, then at the rabbinic level you certainly can do it—is a correct a fortiori argument. Especially since I remind you that I also explained the hierarchy between law A and law B not because of halakhic force. On the contrary: in terms of halakhic force, a Torah-level law should have been harder to change than a rabbinic law. But I explained there that this is not because of halakhic force, but because of the question of what authority we are going against: the authority of the previous religious court, or the way we interpret the Torah. Therefore there is really no such rule that rabbinic laws are stronger or more forceful than Torah laws. There is no such rule at all. On the contrary, Torah laws are certainly more forceful, stronger, harder to change, and therefore the a fortiori argument he makes here is a correct one. And then what this means, basically, is that in law D he is talking about suspending it. Now what counts as suspending something temporarily? That’s a very interesting question. Let’s say not blowing the shofar on Rosh Hashanah that falls on the Sabbath—what category does that fall into? But on the other hand, nowhere here do you have that mechanism. You won’t find it in this chapter. After all, that isn’t a halakhic change. The Sages are not saying that the Torah itself says not to blow on Rosh Hashanah that falls on the Sabbath. In the Jerusalem Talmud yes, but the Babylonian Talmud says no—it’s a rabbinic decree. Okay? So what is it? Apparently it’s a freeze. What he’s talking about in law D is that there is some kind of freeze here, right? We freeze the Torah law because of one set of circumstances or another.
[Speaker B] But “temporarily” is a bit of a problematic phrase.
[Rabbi Michael Abraham] Okay, so what does that mean? What are you saying? It doesn’t fit because ostensibly it should have been temporary—but you know, nothing is more permanent than the temporary. So you have to be careful with temporary changes, right?
[Speaker D] Maybe you have to understand it according to the original decree: today the meaning of the decree is always that they don’t blow the shofar on Rosh Hashanah, but the decree is not that they should not blow the shofar on Rosh Hashanah, but that they should only blow it in the presence of the Great Court.
[Rabbi Michael Abraham] Fine, and today there is no court, right?
[Speaker D] Today there is no court, but when the decree was issued, its meaning was that they should only blow in the presence of a court. Right. So automatically there was no decree here to cancel the commandment.
[Rabbi Michael Abraham] Fine, but practically speaking, right now there is a decree that cancels the commandment. Right now the commandment is canceled.
[Speaker D] That’s a derivative of the decree.
[Rabbi Michael Abraham] Fine—if it’s a derivative, it’s included in it. Now the question is by what mechanism that is done.
[Speaker D] You could say that this too is temporary—so long as the rules apply, they blow.
[Rabbi Michael Abraham] In practice it really is temporary—not only so long as there is a court, not only so long as there is a court; even without there being a court. In principle, if a court were established now and determined that it was possible to do it, it would have the authority to do so, because they suspended the Torah law and did not say that this is what the Torah means. Rather, we are simply removing a freeze; we are not changing. In other words, there is a situation in which we change the law, and there is a situation in which we freeze it. We are not saying it is incorrect; it remains there. Therefore we are not going against Torah law; we are placing a lid over it, some second story over it. For the time being, it is frozen. It is entirely possible—at least as a possibility—that one day there will arise a court that is smaller than the earlier ones, not even Sanhedrins—there is no Sanhedrin today—but the sages of today understand that today this is not correct or not needed, not needed at all. Now if the original enactment was not a rabbinic prohibition not to eat poultry with milk—there is no Torah obligation regarding poultry with milk; that prohibition remains, it is not a freeze of Torah law, it is an expansion of Torah law, meaning to prohibit something additional that was permitted. But if they prohibited something that one is obligated to do, then here it is merely a freeze. After all, they did not cancel the obligation—precisely because of the eternity of the Torah. So since that is so, it could be that today the sages of this generation will conclude that today there is no longer any need for this freeze, and it will end. There is no obstacle, at least in principle, to that happening. It is only a freeze, and a freeze by its essence is temporary. Now who determines when the temporary period is over? After all, if there is no court today, then who will determine it? The sages that exist today—what else can you do, who else would determine it? By the same logic that sages can suspend something from the Torah, if they can suspend something from the Torah then they can also suspend the suspension, restore the Torah law itself to its original place. And Maimonides says that here there is no limitation: every court, the sages of every generation, can decide to do this, because they are the ones responsible for what happens today. Now the question is whether he means only Sanhedrins, or whether it doesn’t depend on their level in wisdom and number, or whether he is really talking about every generation, any sages in every generation. I think he is talking about any sages in every generation; there is no reason to assume otherwise, because you do not need any authority here at all—you are merely saying that the temporary situation from the past has ended. Like what people discussed regarding the ban of Rabbenu Gershom. The ban of Rabbenu Gershom ended quite a few years ago; originally it was for a thousand years. When the time came, a discussion arose there: okay, Rabbenu Gershom set this for a thousand years—what happens next? So the sages extended it. What do you mean they extended it? The halakhic decisors of today agree that the ban of Rabbenu Gershom is still in force, even though a thousand years have already passed. Why? On what basis? Because “temporarily” means something that sages at every stage can decide is over, but they can also decide continues. Okay? On the contrary: if something was set for a thousand years, the claim is that if sages of earlier generations—say a hundred years ago—had decided it was no longer relevant, they would not have been able to do that. Assuming Rabbenu Gershom had authority and that this was accepted—it doesn’t matter right now, but that was the assumption—they could not change it, because for those thousand years he did not leave it to our discretion: after a thousand years decide for yourselves. So of course I’m bringing this only as an adapted example, because the whole ban of Rabbenu Gershom was not established in a Sanhedrin; that means it was not really an institution that had authority. The question is what force it has at all; the force is apparently the consent of the public, not exactly Rabbenu Gershom himself. But at the conceptual level it is the same thing. Meaning, if the court of today decides to punish extra-legally—fine, there is no Sanhedrin, no ordained judges, nothing, so formally you can’t. In the Shulchan Arukh this is written not for ordained judges—that is, from the sixteenth century on, laws that apply only to ordained judges do not appear in the Shulchan Arukh. In Maimonides yes, in the Shulchan Arukh no. It is obvious that the authority of a court to strike and punish extra-legally does not depend on being ordained, and certainly not on being the Great Court. So what does it depend on? The court relevant to the generation in which we live. Why? The reasoning is simple: things have to function. In other words, somehow there has to be some leadership that makes decisions in order to keep steering this ship. In other words, it is impossible to say that formal authority belongs only to ordained judges—but what are you supposed to do with informal authority? In fact, this is the original source of the rule of “acting as their agents.” The rule of “acting as their agents,” which appears in the Talmud in Bava Kamma and in Gittin, says that courts that are not ordained may continue to judge, even though strictly speaking an ordained court is required, in certain matters—common cases, financial loss, and things like that. Why? Where did that come from? So “acting as their agents” in the linguistic sense—did someone say that came from outside? Sorry, I suddenly thought some wind came in—okay. The literal meaning of the rule of “acting as their agents” is that the earlier authorities appointed us as agents. In the time of the Talmud in Babylonia, you could still understand that literally, because there were ordained judges in the Land of Israel—at least at first there were ordained judges in the Land of Israel—so they appointed the sages of Babylonia to judge even though they were not ordained. But we apply this even today. And today there is no such thing anywhere; the ordained judges are gone. There is no such thing as appointing an agent when the one who appoints is dead.
[Speaker D] If the principal dies, the agency is canceled. There’s the Ketzot—
[Rabbi Michael Abraham] —who wants to say in the Rif’s view that it isn’t, but all the later authorities reject his words, and it doesn’t work. Sometimes they continued with power of attorney, or as an extension of his hand. The claim is that if it’s power of attorney, then even if the principal dies that doesn’t matter; if it’s an extension of his hand, then you act in his name, and if he is no longer here then there is no one on whose behalf you can act. If it’s power of attorney, then in essence he transferred himself into you, and now you are his emissary, you are the one who represents him. Now the Ketzot says: if it is power of attorney, then even if the principal dies, the relevant person is still here—the agent—and therefore maybe he could even divorce the wife of a man who died. But he says you can’t do that because she is no longer a married woman—not because of the problem of agency, but at the conceptual level there still is agency. And the later authorities attack this sharply; they say there is no such thing as agency after the principal dies, not because she is no longer a married woman, but because you are no longer an agent either. In any case, for our purposes, what I want to say is simply that it is obvious—at least to me—that the rule of “acting as their agents” did not emerge because someone carried out some formal process of appointment there. There was no ceremony appointing the sages of Babylonia or the sages of future generations to judge. Rather, the sages of Babylonia, or the sages of future generations, understand that it is impossible that there be no authority for the generation, and therefore there is a fiction of appointment as agents. It is an implied appointment of agency, an appointment that says: if the sages had thought about it, they certainly would have appointed us, because it cannot be otherwise. Therefore they also appointed us. It is a kind of legal fiction. And the same consideration itself—for example, Tosafot in Gittin there, in the passage about “acting as their agents” on page 88. Tosafot asks: how do we convert people today? After all, conversion requires a court; without that there is no conversion. It is a constitutive condition. But today we have no ordained court. So what are you going to say—a rabbinic enactment, an enactment of “acting as their agents,” that a court can convert? There’s no such thing. A court enactment can be an enactment that a court can adjudicate monetary law—that is the original rule of “acting as their agents,” fine? It can adjudicate monetary law and nevertheless you will be obligated, because a court can confiscate property, and that is court confiscation. A court cannot decide that pork is kosher. There is no such thing. So when you say there is an enactment of “acting as their agents,” a rabbinic enactment that non-ordained judges may judge, they are still only a rabbinic court. Now I ask: is this convert Jewish? So you tell me: at the Torah level he is a gentile and at the rabbinic level he is Jewish? Because the court that converted him was only a rabbinic court. It’s like saying a rabbinic acquisition works at the Torah level—there’s no such thing. If the money is mine, then it is mine both rabbinically and at the Torah level. We do not live in a world where at the Torah level it is mine and rabbinically it isn’t. Some people may say that, but it is very strange. So with conversion too it is like that. So how can that be? That is what some later authorities ask: if this is a rabbinic enactment, how does it work for conversion? So Tosafot says: because it is like the enactments of “acting as their agents,” even though it does not really fulfill the conditions. There is no financial loss here. Is it common or not common? That is debatable; it is common. But there is no financial loss, so the enactment of “acting as their agents” does not apply to it. So where does it come from? Tosafot says: it comes from the fact that clearly there cannot fail to be some provision for conversion. You can say this in the Talmud as well; it doesn’t matter right now, I spoke about this once. The Talmud says “throughout your generations,” therefore today we also convert without a sacrifice—bringing blood and a sacrifice as part of the conversion process; today there is no sacrifice. And nevertheless the convert is a convert, fully Jewish, even though he did not bring a sacrifice. So there is some law of “throughout your generations”; the question is what it applies to. But again, there is here some basic conception that starts the whole discussion, which says that it cannot be that we are left without authority. There is no such thing. So even if formally the authority of the sages of this generation is not defined that way, still the sages—whoever exists in this generation—can assume authorities extra-legally. It is extra-legal, because the law says he has no authority. But fine—his authority stems from that logic which says it cannot be that functioning becomes impossible. So that is basically what Maimonides says in law D: a court has authority to suspend these things temporarily. Where does this come from? It is not clear to me. I do not know any Talmudic source for the authority to punish extra-legally and things like that. I know of no source whatsoever. The source is the reasoning, the reasoning that says it cannot be that we remain like sheep without a shepherd. Okay? So if that is the reasoning, then clearly this reasoning does not depend on whether it is the Great Court, whether they are ordained or not ordained. Every generation according to whoever it has, because it cannot be that there should be anarchy in any generation. So if indeed the basis is reasoning, then law D truly is not limited. And that is true for all sages in every generation, according to what exists—even if it is not the Great Court, even if they are not ordained, none of that. If sages see that the times require it, they cannot change Torah law; they cannot cancel enactments of a court that preceded them, unless they are a court greater in wisdom and number. But they can freeze. And that is a tremendous innovation. A tremendous innovation. And it means that all the authority considerations we have today do not prevent changes in Jewish law. In my view law D is something revolutionary. People have not noticed how revolutionary Maimonides’ law D is. Because it basically means that authority considerations are no obstacle to change so long as it is necessary. Meaning, if the change is the result of your interpreting the Torah differently, you cannot do that. There are conditions—you need a great court, greater in wisdom and number. Okay? Here there are authority considerations. But where the times require it, there even if you are changing Torah law—and certainly, certainly if you are changing rabbinic law—Maimonides rules by a fortiori reasoning that you can do it, and it does not matter who you are. Again, so long as you are the recognized court of that generation. But it does not matter who you are. Why? Because you are not changing—you are freezing. You are basically saying the previous law is correct. I am not saying it is incorrect, I am not changing it. Even if I think it is incorrect, that doesn’t matter; I cannot change it. What I can do is freeze. And a freeze is by definition temporary. And as we said earlier, nothing is more permanent than the temporary. So it is defined as temporary, and the court of the next generation will decide as well—but it too can continue to freeze it. And usually what makes sense in this generation will make sense in the next generation, until there really comes a stage when it is no longer right. Then indeed the court of that generation will change the freeze, thaw the freeze, and restore the original law. But that means none of this is erased from the Shulchan Arukh; rather an additional layer is added that freezes it. The next generation can remove the layer, thaw the original law, and restore it to its place. Now in places where we—and we will still see examples of this later—the sages did this. All this is only the theoretical introduction, but later we will still see examples of it. In a place where the sages see that a certain law brings harm, desecration of God’s name, or other such harms, they can freeze it temporarily, and there are no authority limitations on that. It can be the sages of the generation in question. And not only are they allowed to do it—they must do it, because that is their role. I wrote something about this when I spoke about legumes, a while ago when I discussed legumes in my column, in the controversial column I wrote about it. So beyond this question—which in my view is a concern and not an enactment, as I wrote there, or a decree—I say beyond that there is also room either to freeze or to thaw a freeze, it doesn’t matter. But in a situation where a certain law, even if it is correct, you understand that it is harmful, you can freeze it without touching it, without changing it, without saying it is incorrect—freeze it. Say that in this generation it no longer applies, for this generation. After that, the sages of the next generation will decide for themselves. Okay, so that is law D, and we will come back to law D, because law D is a major basis for many changes that need to be made today, and it is possible to make them according to law D, even if not according to law A or B. That is my claim. It is also one of the claims in the book when I discuss changes in Jewish law; I say this there at length. Meaning, the claim is basically—and this is an important point—that if you think something needs to be changed because it is not correct, then you are in the realm of laws A and B. It is not correct, but what can you do? In order to cancel it there are limitations—Maimonides and the Raavad, whether this is Torah-level, and all that. But if you think it is harmful, that the times require a change—not that the times no longer require the original law, but that the times require a change, meaning the original law is harmful—in such a situation you have authority to freeze, and it does not matter who established the original law and who the sages of this generation are. Even against the Talmud, even against the Great Court—everything can be frozen. There is no limitation. If I am right in this interpretation of law D in Maimonides—and I think I am.
[Speaker H] Is freezing only by passive omission?
[Rabbi Michael Abraham] What?
[Speaker H] What? Is freezing only by passive omission?
[Rabbi Michael Abraham] Simply speaking, no. Because Maimonides himself brings the example of extra-legal punishment, and extra-legal punishment is positive action. A court lashes someone who does not need to be lashed, kills someone who does not need to be killed. We know that great courts in the Middle Ages—the Rosh and the Ritva—would cut off the nose of a woman who committed adultery. It is a Torah-level prohibition to do such a thing without authority; you cannot injure a person. But it says that a court may strike and punish extra-legally. This does not require the Great Court of the generation. True, these are limitations that developed over the generations. But they did such things, and that is positive action in every sense.
[Speaker H] In the Talmud it says that this is passive omission, no?
[Rabbi Michael Abraham] The sages uproot something from the Torah by passive omission. That is probably a permanent uprooting—although in Maimonides, as I said, I do not know, I do not find a category like that, as with the shofar. I do not find such a category in Maimonides, and therefore Maimonides does not distinguish. In the Talmud it really does say that when the sages come to uproot something from the Torah, they uproot it by passive omission. But the question is what is being discussed there. Do they understand that they are changing Torah law completely because they understand that it is no longer relevant—that it was once relevant and is now no longer relevant at all—or is this a temporary freeze? If I am right about Maimonides, a temporary freeze is not what is being said there. More than that, I will say: the Raavad himself in his comments, and Tosafot in several places too, a number of medieval authorities write that where the times require it, they uproot even by positive action. There are several examples of this. For instance, an outstanding example is the laws of an informer. The laws of an informer—the Talmud in Bava Batra 116, I think, Bava Kamma 117—it is brought as practical Jewish law in Maimonides, in the Shulchan Arukh, in all the halakhic decisors: one may kill someone who informs on another’s property. Kill him. Now you have no uprooting by positive action greater than that: permission to kill a person without a ruling of a court of twenty-three, an ordained court—and even if there were an ordained court, on what basis? For an informer there is no death penalty. What offense did he commit that carries a death sentence? The capital crimes are written in Jewish law—what one is liable to death for, with witnesses and warning and everything. And in the case of an informer there is an enactment written after there was no longer any authority at all to establish death penalties. They no longer had authority to establish capital punishments, and still they determined that his sentence is death, and this is brought in the halakhic decisors as practical law. Now there are those who want to claim that this is because of the future concern that it will become a danger to life—because the person will defend himself and the king will kill him—and then it becomes like the law of the burglar tunneling in, where they basically do the same trick. I am not persuaded by that there either, and I am not persuaded by it here. The plain meaning is not like that, and you also see in a number of halakhic decisors that they write explicitly: it is not specifically about whether this will ultimately become a danger to life; it is about killing him because he is harmful, because the times require it. So here this is really positive action. And Maimonides puts this into law D, extra-legal punishment by positive action, as an example of that same freeze he is talking about.
[Speaker D] Is that law D or law 9?
[Rabbi Michael Abraham] No, permission—clearly in a place where you fear this is something systemic, something—not someone who informed once and that’s it, but someone who is going to cause us endless trouble and wreck our lives, and no one can do anything to him because we have no court and nothing at all—then they do what’s called semikha. The private police of the Haredi world are based on this, since they do not accept the authority of the courts and the law and so on. After all, anarchy is not an option; it cannot be. So what do they do? Then the local court—if they do it properly, because this also gets to situations where people take matters into their own hands, but there are those who act under the direction of a certain court. I once told you that they offered me to do this with some recalcitrant husband who was sitting in the United States. We wanted to annul a marriage, and one of the people I spoke with who deals with this area, a rabbinical judge somewhere, told me: listen, I know people in the United States who will take care of him, if you want. They’ll force him to give a bill of divorce, and then you won’t need this ruling annulling the marriage and so on. Now he told me they work on—I was worried, I said to him, what is this, just random violence? He said no, no, there is a judge and there is a court that directs them and tells them when yes and when no. There is a whole conception behind it. The conception, of course, is first of all that they do not recognize the authority of the existing institutions—but once you do not recognize them, you need to produce something alternative. And then you say, okay, then this court will decide when yes and when no, and this is extra-legal. It does not work according to the formal rules, because the times require making order. Okay, so that is basically Maimonides’ law D. Law E—let’s try to finish at least this chapter today. “A court that sees fit to issue a decree, or enact a regulation, or establish a custom, must deliberate on the matter and know first whether the majority of the public can abide by it, or cannot abide by it. And one never issues a decree upon the public unless the majority of the public can abide by it.” This law deals with the question of how you go about issuing a decree, not what happens afterward. When you approach issuing a decree, you need to assess what its fate will be: will the public accept it or not accept it? If you assess that they will not accept it, then don’t bang your head against the wall; don’t issue that decree. Law F: “Suppose a court issued a decree and thought that most of the congregation could abide by it”—because otherwise they could not have issued it at all—“but they assessed that they could, and after they issued it the people questioned it, and it did not spread to the majority of the congregation, then it is void, and they are not permitted to force the people to follow it.” Here it seems you don’t even need cancellation by the court itself to determine that it is void; it becomes void by itself. They cannot force the people at all, even if they want to. They cannot force the people to follow it because it is void. Now of course the question arises: how long do you need to wait, and when do we decide that no, okay—I don’t know. But at some point, once it is clear that it has not spread, then it is canceled, that’s it. This is speaking, unlike law E, about the de facto situation, not about the prior assessment of what will happen, but about what actually happened—and it did not spread. Law G: “If they decreed and thought it had spread throughout all Israel, and the matter indeed stood for many years, and after a long time another court arose and examined all Israel and saw that this decree had not spread throughout all Israel, it has permission to cancel it even if it is inferior to the first court in wisdom and number.” Very subtle—notice. But here you already need a court. It need not be greater in wisdom and number, but it still needs to be a court. Why? Because it had spread. This is a different issue: it spread and then receded, and afterward maybe spread again. The question is what happens if it spread and afterward the public suddenly stops obeying. Is that called “it did not spread”? After all, once it already spread, then it took hold; now it is valid. Now when the public stops observing it, then the public are transgressors, because the enactment is already valid. So Maimonides says: that is true, in principle it is not void even if the public doesn’t observe it. But there is still this leniency in the sense that when a court comes to cancel it, it does not need to be greater in wisdom and number. Fine? So there is significance to this matter of its having receded—in other words, it spread and then receded. And maybe just one sentence on this issue, which I have thought about more than once. Why do we need this spreading among the public? Usually people understand spreading among the public as a matter of realism. Meaning, you have to understand that you do not live in a vacuum. The determinations that you—the judge in the court, usually the Great Court—make are meant to be implemented by the ordinary people in the field. And just because you in the court or you as a Torah scholar can behave this way, it may be that the person on the ground cannot behave this way. It is difficult for him. In any event, this is not the core law; it is your enactment or your decree. So note that Jewish law addresses the public as a whole, not only you. And sometimes you need to be aware of that, and therefore if it does not spread to the whole public, then apparently you have to compromise here and not do it, even though that is the right thing. What I wrote, and have said in several places, is that I think that is not the whole picture. Rather, the claim is that if it did not spread to the whole public, then it is not right. There is supposed to be a Torah that can be implemented by the reasonable person. If it cannot be implemented by the reasonable person, then it is not that I need to compromise. Rather, if it cannot be implemented by the reasonable person, that is an indication that I was mistaken from the outset. It is not correct that this is what the Torah says. It cannot be that the Torah demands from us something that the reasonable person cannot observe—not the Torah itself but rabbinic law in this case. But it is not right to establish something that the reasonable person cannot observe. Not wrong because we are compromising, as though really it is right; rather no, it turns out it was simply a mistake in the decision. It is not right to do it. Okay?
[Speaker E] There seems to be some lack of coordination between F and G, because in F you say that the moment the people question it and it does not spread, then it becomes void on its own with no change, it is simply void, and no court even has to convene.
[Rabbi Michael Abraham] Why is that a contradiction?
[Speaker E] In G it says again, “They decreed and thought—”
[Rabbi Michael Abraham] “—that the matter stood for many years.” What? “And the matter stood for many years.”
[Speaker E] Fine, there too—
[Rabbi Michael Abraham] They thought that most of the congregation could abide by it; that also says “they thought” in F. True, but what gives the enactment force is that it actually spreads, not that they thought it would spread. It has to spread. And the next law says it is canceled by itself—if it did not spread, if they only thought it would, it is canceled by itself. My claim, basically, is that the requirement that it spread through the whole public is feedback to the court. I talked about this in one of my columns, and I said that sometimes there is something called Torah reasoning that is crooked reasoning. You sit in the court or in the study hall and it seems terribly logical and brilliant to you; you have wonderful distinctions that really explain why it is so logical. But someone who knows life on the ground and knows the life of the public understands that this is nonsense. And sometimes complex, analytical, sophisticated, learned reasoning leads to foolish conclusions, because it just doesn’t make sense. When we discussed this, I brought what Benny Lau once wrote—I read that he once wrote that one of the serious problems of this generation is that leadership has passed from community rabbis to yeshiva heads. Because yeshiva heads deal with eighteen-year-old boys—even in the best yeshivot—and that is not a simple challenge. It is a hard confrontation. These are guys who don’t let you get away with anything, but they evaluate you by intellectual brilliance, by consistency, by originality of the idea—
[Speaker C] Not by reality.
[Rabbi Michael Abraham] Yes. When you are a community rabbi, you get feedback: listen, forget it, this doesn’t make sense. In other words, he’s an adult already; he’s not playing logical games with you. He says, listen, this is not common sense, it’s not reasonable. Now the moment the leadership is leadership of yeshiva heads, they do not get correct feedback. And I think I also said there that when someone came to me—someone I had accompanied a bit, a newly observant person whom I had helped a little—and he said to me, listen, they keep making all sorts of remarks to me. They told me, don’t say that God’s name is with some Israeli-style name, they said it’s not fitting; change it to Yankel or something like that, something more acceptable. Or don’t walk around with one of those student backpacks or Alpine or something like that; go with something more respectable, like a plastic bag, right? Like a kollel fellow from—anyway, he told me he doesn’t understand where this comes from. And during the conversation I started thinking that there is something in current Haredi policy that is very problematic, because today when a new stringency comes out, or some new custom, or some new enactment of one kind or another, it is not measured against the public. Meaning, if it doesn’t spread among the public, that just means this public is apparently not serious; we only relate to Torah scholars. And then what happens is that you don’t get the feedback that the Sages required in such enactments. The Sages required that you test it against the ordinary people in the field. But if you reduce it only to those who accept it, then you will never get feedback, because everyone who doesn’t agree is in any case not counted—he’s not serious, we’re only talking to those who are. And as a result you get something called positive feedback, and then there is an explosion. Because that feedback is supposed to restrain this spread so that it won’t be limitless, so there will be some logic to it. And the moment you don’t have feedback, everything blows up. There is no control at all, and then you really get to bizarre things. And therefore I think this law is a very significant law as real feedback, not because of a necessary compromise. Okay.