Changes in Halakha, Lesson 8
This transcription was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Principles and examples from the past
- The tension between law and rationale in Torah-level law and the rationale of the verse
- Critique of the argument: “maybe we’re mistaken about the reason”
- “He shall not multiply wives for himself” and Maimonides as a third Tanna
- Is the prohibition the wording or the rationale: exegetical conservatism and its implications
- Command versus the essence of the commandment: Rabbi Elchanan Wasserman, the Ramchal, and Netivot
- Purposive interpretation: the “spirit of the law” and the limits of the line
- Rabbinic law: Maimonides in Laws of Rebels and the Raavad’s challenge
- Approaches of medieval authorities (Rishonim): the Meiri, the Ritva, the Rosh, and Tosafot HaRosh
- Need, harm, and desecration of God’s name: a new enactment that freezes an earlier enactment
- Maimonides: temporary uprooting and emergency ruling (Laws of Rebels 2:4)
- Procedural laws, “It is a time to act for the Lord,” and Rabbi Kook
- The distinction between a formal enactment and a response to reality: legumes, water, and dangers
- Additional mechanisms: the rationale built into the wording of the enactment, a fixed time period, and hidden reasons
- Examples from Tosafot and the Ran: practical nullification and defining the scope of an enactment
- The limits of the criteria and the absence of a sharp line
- An original mistake and changed natural realities: Neria Gutel and lice
Summary
General overview
The text presents a fundamental tension between the wording of the law and its rationale, and from that arises the question of whether it is possible to change Jewish laws when circumstances change or when the reason no longer applies. It illustrates the tension in Torah-level law through the topic of the rationale of the verse, and in rabbinic law through the laws governing the nullification of enactments, bringing the rulings of Maimonides, the objections of the Raavad, and the views of other medieval authorities. It argues that the explanation “maybe the reason is really something else” is unsatisfying, offers a principled understanding of fidelity to the precise wording, and adds practical mechanisms that in fact allow changing or freezing laws when there is need or harm, including emergency rulings and a new enactment. In the end, it raises another possibility: an “original mistake,” where it becomes clear that the enactment or factual assumption was invalid from the outset.
Principles and examples from the past
The speaker wants to wrap up the issue of changes through a discussion of examples, and emphasizes that principles become clear through examples, especially in a subject that is “a bit explosive,” in order to show that similar things were also done in the past and nobody panicked over it. He says there are several articles on the subject, notes that he has material he uses and can send it, and offers to send by email two of his own sources, even though not everything he said was written up.
The tension between law and rationale in Torah-level law and the rationale of the verse
The text presents the basic tension between a law and the reason for that law as the source of the need to change a law when the reason “no longer applies” or when circumstances have changed, and stresses that this exists both in Torah-level law and in rabbinic law. It defines the Torah-level discussion as arising in the framework of the rationale of the verse, and usually not because reality has changed, but because in certain circumstances the reason does not apply. It brings “You shall not take a widow’s garment as collateral” and asks about a wealthy widow, presenting this as a dispute between Rabbi Shimon and Rabbi Yehuda over whether one expounds the rationale of the verse, with the practical ruling following Rabbi Yehuda that one does not.
Critique of the argument: “maybe we’re mistaken about the reason”
The speaker presents the common explanation for not expounding the rationale of the verse as a concern that we may be mistaken about the reason, and says this is “very strange,” because preserving the law unchanged may also be a mistake if in truth it should have been changed. He points to the cost on both sides: taking collateral from a widow may violate a Torah prohibition if the Torah is protecting every widow, while not taking collateral harms the rights of the lender. He argues that if there is no decisive information, it is natural to bet on the plausible reason, and therefore he does not understand the logic of refusing change merely because of the possibility of a hidden reason. He stresses that he is not challenging the Jewish law, but trying to understand its logic.
“He shall not multiply wives for himself” and Maimonides as a third Tanna
The text moves to the discussion in tractate Sanhedrin 21 on “He shall not multiply wives for himself, lest his heart turn aside,” and describes a role reversal between Rabbi Shimon and Rabbi Yehuda: when the reason is written explicitly, Rabbi Yehuda does expound the rationale of the verse, while Rabbi Shimon argues that “lest his heart turn aside” is an additional command, not a reason. It brings Maimonides, who claims there is a third Tanna there, rules in accordance with him, and determines that one does not expound the rationale of the verse even when the reason is written explicitly. The conclusion is that the reason is not fear of error about some other reason, but a principle of fidelity to the exact wording: if purposive interpretation leads to a result that does not fit the language of the prohibition, then “apparently we did not understand the reason correctly,” even if it is written explicitly, and therefore one follows the wording of the Torah.
Is the prohibition the wording or the rationale: exegetical conservatism and its implications
The speaker formulates the claim that one who expounds the rationale of the verse is not “changing Jewish law,” but claiming that the real prohibition is the underlying principle and the verse is just an example—for instance, that the prohibition is not “taking collateral from a widow” but “not harming economically vulnerable people.” Therefore there is no dilemma in the case of a wealthy widow, and there is also a practical implication in the opposite direction for a poor widower. Against that, he presents a conception of “no distinctions,” where the Torah prohibits categorically and does not enter into exceptions, and adds the common assumption that “no distinctions” is mainly attributed to rabbinic law, while “the Torah tells the truth.” He illustrates the same question in rabbinic law through “one may not read by candlelight lest he tilt it,” and asks whether the prohibition is the reading or entering a situation of “lest he tilt it,” linking this to the view that Rabbi Shimon sees the prohibition as the rationale and not as the wording of the enactment.
Command versus the essence of the commandment: Rabbi Elchanan Wasserman, the Ramchal, and Netivot
The text suggests linking the tension between law and rationale to the question of the essence of the halakhic command, and brings Rabbi Elchanan Wasserman’s article in Kovetz Maamarim in the name of the Ramchal, about two aspects in every commandment and every transgression: the dimension of command or rebellion, and the essential dimension. He gives the example of eating pork as both rebellion against the command and as an act that is problematic in itself, and points to a practical implication in the case of an unintentional transgression, where the dimension of disobedience is absent but the act itself remains. He then cites Netivot in section 234, who argues that for an unintentional rabbinic prohibition “one does not need to repent at all,” because a rabbinic prohibition is only a personal obligation of obedience to the Sages and has no essential problem. After that, he explains why he is not sure that this connection explains the rationale of the verse, because if one interprets the prohibition as the rationale, then the command itself is also interpreted in terms of the rationale.
Purposive interpretation: the “spirit of the law” and the limits of the line
The speaker identifies the “spirit of the law” with purposive interpretation and asks whether there can be a gap between what the Torah commands and what it wants to achieve, while discussing the difficulty of a broad rule like “do not harm the weak,” which does not define boundaries. He presents an alternative claim that the specific command draws a line, but stresses that the problem remains in an exception like “Baron Rothschild’s widow,” who is not vulnerable, and that at the point of permission the tension arises between the rationale of the verse and the wording.
Rabbinic law: Maimonides in Laws of Rebels and the Raavad’s challenge
The text quotes Maimonides in Laws of Rebels, chapter 2, law 1, that a later court can overturn the interpretation of an earlier court in Torah law on the basis of “to the judge who will be in those days,” without needing to be greater in wisdom and number. It quotes Maimonides’ law 2, that in rabbinic matters, when a court decreed a decree or enacted an enactment and the matter spread throughout all Israel, no later court can nullify it unless it is greater than the earlier one in wisdom and number, “even if the reason for which the earlier ones decreed or enacted has ceased.” It brings the Raavad’s objection: “the adornment of the markets of Jerusalem with fruit is difficult against him,” since Rabban Yohanan ben Zakkai abolished it after the destruction because the reason ceased, and he was not greater than the earlier authorities. It presents the implied assumption of decline of the generations, and the difficulty that the law is thereby emptied of content.
Approaches of medieval authorities (Rishonim): the Meiri, the Ritva, the Rosh, and Tosafot HaRosh
The text notes that the Meiri on Beitzah 5 and the Ritva agree with the Raavad, and brings from the Meiri a distinction according to which when “that reason has passed,” one cannot permit except by another count, “whether equal to them or even lesser than them,” whereas when the reason has not passed and they simply want to revoke it, they must be greater in wisdom and number. It brings Tosafot HaRosh on Bava Metzia 90, who suggests that where the reason is clear, “one does indeed expound the rationale of the verse.” It quotes a responsum of the Rosh, Klal 2, siman 8, that in rabbinic law, when “the reason for the prohibition is known” and the reason has ceased, “the prohibition automatically ceases,” and stresses that this opens a very broad door to determining when a reason is considered clear—broad enough to empty the rules of content.
Need, harm, and desecration of God’s name: a new enactment that freezes an earlier enactment
The speaker adds a mechanism according to which, even if there is no way to revoke an enactment according to the usual criteria, one can institute a new enactment that freezes the previous one because of the harm caused by continuing it. He argues that when preserving a custom or enactment that is “devoid of reason” causes harm, including something that “looks ridiculous” and creates desecration of God’s name both internally and externally, the Sages in practice do make changes despite not meeting the standard criteria. He explains that freezing is not the annulment of the first enactment, but an enactment on a second level, and presents the argument that if one can uproot a Torah law through an enactment, then all the more so one can freeze a rabbinic law when a need arises.
Maimonides: temporary uprooting and emergency ruling (Laws of Rebels 2:4)
The text quotes Maimonides in Laws of Rebels, chapter 2, law 4: “A court may uproot even these matters temporarily, even though it is smaller than the first ones, so that these decrees should not be more stringent than the words of Torah itself,” and explains that this is done in order to strengthen religion, make a fence, punish beyond the strict law, or “to suspend a positive commandment… or violate a prohibition” in order to save the many. It brings the analogy: “Just as the physician cuts off a hand or leg… so too the court instructs at certain times,” and also “desecrate one Sabbath for him so that he may keep many Sabbaths.” It explains “temporarily” as a principled temporary freezing, and adds that the claim of temporariness does not prevent a prolonged continuation as long as no court comes and restores the earlier law.
Procedural laws, “It is a time to act for the Lord,” and Rabbi Kook
The speaker raises the argument that even “procedural laws,” such as not expounding the rationale of the verse or the requirement of being “greater in wisdom and number,” are themselves laws, and in a time of need one can also violate them. He notes that Rabbi Kook, in the book Lenavukhei HaDor, writes that the rule that one does not expound the rationale of the verse and the rule that one needs a court greater in wisdom and number—“that too can be set aside by a court.” He adds “It is a time to act for the Lord; they have violated Your Torah” as an example, and cites the writing down of the Oral Torah by Rabbi Yehuda HaNasi as an example of exceptional action when “the hour requires it.”
The distinction between a formal enactment and a response to reality: legumes, water, and dangers
The text argues that there are cases where there is no actual “enactment” requiring formal annulment, but rather a practice that arose as a response to reality, and therefore when that reality disappears, the practice stops without any mechanism of revoking enactments. It uses the analogy of medicine taken because of an illness that is now gone, and the example of legumes on Passover because of concern that wheat got mixed into the legumes, and argues that this is not “an enactment prohibiting legumes,” but caution against leavened food. Therefore, when there is no leavened food there, “it’s like the rebbe of Gur’s broom.” He rejects justifications of “holiness in customs… tradition” as apologetics that do not justify harm. He distinguishes between legumes and the second festival day in the Diaspora, which is “an explicit enactment in the Talmudic text,” arguing that with means of communication today “there is no doubt it should be abolished,” while recognizing that this already falls under the formal laws of annulment of enactments.
Additional mechanisms: the rationale built into the wording of the enactment, a fixed time period, and hidden reasons
The text presents the possibility that when the reason is included in the wording of the enactment, such as “one may not read by candlelight lest he tilt it,” there are halakhic decisors who hold that when the reason no longer applies, the enactment falls away, because writing the reason signals: “here you follow the reason.” It mentions the topic of “Return to your tents” as a source for the idea that even an enactment established for three days does not lapse automatically but requires explicit cancellation, and notes that medieval authorities discuss whether “greater in number” is also required. It also mentions the view of “hidden reasons” as a concern that there may be a reason we do not know, though it adds that perhaps not.
Examples from Tosafot and the Ran: practical nullification and defining the scope of an enactment
The text cites Tosafot in tractate Avodah Zarah 15 and in Bava Metzia on “What is usury?” describing the current reality that “nowadays” people sell animals to gentiles or lend with interest to gentiles, and explaining the existential need without entering into a formal framework of annulling an enactment. It describes a situation in which “the people fixed the enactment with their feet,” and the permission rests on need rather than on orderly annulment. It brings the Chazon Ish, who speaks of an “implicit prohibition,” where one determines that something is rabbinically prohibited even without an explicit enactment because it is obvious that the Sages would have prohibited it had they sat to consider it, and presents this as an answer to the question of how rabbinic prohibitions arise from the reasoning of halakhic decisors. It quotes the Ran on Beitzah about Rav Yehuda, who sent a gift on their festival day because “I know regarding him that he does not worship idolatry,” and brings in the name of Tosafot a distinction according to which the rule “a matter established by a count requires another count to permit it” applies only to one who originally had the reason for the prohibition, even though it has now ceased; but someone “for whom there never was any reason for prohibition at all” is permitted without another count.
The limits of the criteria and the absence of a sharp line
The speaker admits that the distinctions allow “expounding the rationale of the verse to sneak in through the back door,” and asks where the boundary is. He concludes that he does not have a sharp criterion, and that sometimes people say these things “where needed.” He returns to the point that the fundamental mechanisms are need that leads to a freezing enactment, a reason that appears in the wording of the enactment, and the other structures that were mentioned, and offers to send out organized material from the article.
An original mistake and changed natural realities: Neria Gutel and lice
The text distinguishes between a change in reality and a situation in which there was an original mistake in the perception of reality, and argues that in such cases no count is needed to permit, because “retroactively there was never an enactment.” It mentions Neria Gutel and his book The Changing of Natural Realities in Jewish Law, and quotes the statement that changed natural realities is “a polite expression” for the fact that the Sages did not correctly understand reality or lacked scientific knowledge, while stressing that Maimonides and his son spoke about gaps in knowledge. It brings the example of lice and formulates a legal principle: just as in a contract or kiddushin done “on the understanding that…” and then mistaken information is discovered, so too an enactment based on error is invalid; in such a case this is not “the reason ceased,” but rather “an enactment made in error” that never applied from the outset.
Full Transcript
[Rabbi Michael Abraham] Just to finish up this whole issue of changes, and to finish it through a discussion of examples—but of course these are principles that come to expression through examples. Still, you need to see examples from the past, especially on a topic like this, which is a bit explosive, so you can see that similar things were done in the past too, and nobody got alarmed by it. There are a few articles on this topic.
[Speaker C] I have—
[Rabbi Michael Abraham] Something here that I use—I can send it, as far as the examples go. On the more general questions, maybe there’s one thing. Not everything I said here is written up, but if you want, send me an email and I’ll send you two things of mine, okay? Fine. In principle, what we really have here is a certain tension in this topic, and that’s the basic tension everything starts from: between some law and the reason for that law. Because basically, the need to change some law arises when, in the situation we’re in, its reason no longer applies, or something in the circumstances has changed in a way that means the law really ought to be changed. And this tension exists both on the Torah level and on the rabbinic level. I already spoke about this tension last time, and I won’t go over it again here, but I want to show that it exists in parallel both in Torah law and in rabbinic law, and to show the differences and some examples. On the Torah level, this comes up in the context of the rationale of the verse. There’s some law whose reason we think does not arise in a certain circumstance, and the question is whether we can change it, or not act in accordance with it, or interpret the law accordingly. There, by the way, usually we’re not talking about a case where something in reality changed, but rather where in certain circumstances the reason just doesn’t apply. For example, the Talmud / Talmudic text brings the verse, “You shall not take a widow’s garment as collateral.” You’re not supposed to take collateral on a loan you gave to a widow. And then the question comes up: what about a wealthy widow? Presumably “widow” means an example of a poor woman, a woman in bad financial condition. But if she’s wealthy, then why not take collateral? That harms the lender’s rights. The lender wants to make sure he’ll actually get his money back; he wants collateral. So the question is whether you may take collateral from a wealthy widow. Here it’s obvious that it’s not that all widows used to be poor and now became wealthy. In other words, these are certain circumstances in which, from the outset, it seems to us that the reason for this law was not applicable. The question is whether we can make distinctions of that kind. That’s a dispute between Rabbi Shimon and Rabbi Yehuda over whether one expounds the rationale of the verse or not—we’ll talk about that sometime too. In any case, practically we rule like Rabbi Yehuda, that one does not expound the rationale of the verse. Now the question is: why not? There are various explanations—maybe I mentioned this once—there are various explanations. The common approach is: because maybe we’re mistaken about the reason. Maybe that’s not the right reason, who knows. To me that sounds very strange on its face, because it could also be that we’re not mistaken about the reason. Saying that we do not change the Jewish law—that’s not automatically playing it safe. If we’re not mistaken about the reason, and the Jewish law really should be changed, then we’re mistaken either way. So let’s go with what seems plausible to us. If what seems plausible to us is that, say, “You shall not take a widow’s garment as collateral”—we have two possibilities. Maybe the reason really is not to harm a woman in difficult financial condition, which sounds reasonable to us at first glance. And maybe there’s some other reason that isn’t that one. I’m not talking about a position that says there are no reasons at all—that seems totally unreasonable to me. I’m saying: maybe there’s another reason, and we don’t know what it is. Fine. I have two possibilities and I can’t decide between them. So what do people say? Well, since you don’t know, don’t change anything. Why? Maybe since I don’t know, I should change it. Why is not changing it in a better position? Why does the burden of proof fall on the one who wants to change it? We have to remember that there’s a price to both sides, right? There’s a price because if I take a widow’s garment as collateral, maybe I’m violating a Torah prohibition—the Torah has some interest in protecting every widow, not only a poor one. On the other hand, if I don’t take the widow’s garment as collateral, I’m harming the lender’s rights. He wants to make sure he gets his money back, and he wants collateral for that. Okay, so in fact there’s a cost in both directions. More than that: when I ask myself what makes more sense—that the reason is what I think it is, a plausible reason, or that there’s some other reason—I don’t know. But this seems more plausible to me. So if I have to decide, and I have no other information, I would bet that this really is the reason. And somehow the question, “maybe there’s another reason,” is always treated as though it’s immune from criticism. As if there we can’t say anything. What do you mean? If the reason really is that it’s only forbidden to harm a poor widow, then someone who does not take the garment of a wealthy widow as collateral is making a mistake. That too is a mistake. And keeping the Jewish law as it is, if in truth it should have been changed, is also a mistake. And that mistake also has a cost, as I said before. So I don’t see the logic in saying that maybe there’s another reason, and therefore we can’t change it.
[Speaker E] It could be that Jewish law ruled that one does not expound the rationale of the verse, so all these discussions you’re raising were already taken into account.
[Rabbi Michael Abraham] Fine, but right now we’re learning the topic. I don’t know why Jewish law ruled that way—I’m trying to understand. Trying to understand what it means. Yes. I’m not contesting the Jewish law. I’m saying: that’s the law that was ruled, and I’m trying to understand why—what the logic is. So some people say it’s because maybe I don’t know the hidden reasons. To me that sounds like a strange argument. More than that: Maimonides writes—this is a discussion in the Talmudic text in Sanhedrin 21—there is a tannaitic dispute there regarding “He shall not multiply wives for himself, lest his heart turn aside,” about the king. So, “he shall not multiply wives for himself,” and apparently the reason is “lest his heart turn aside.” Then once again the question comes up whether one expounds the rationale of the verse or not, and there Rabbi Shimon and Rabbi Yehuda switch roles. Because the one who usually does not expound the rationale of the verse says: fine, but here the reason is written. So what’s the problem? Here the reason is stated. I’m not speculating that maybe this is the reason. The Torah itself says what the reason is. So here Rabbi Yehuda specifically does expound the rationale of the verse. And Rabbi Shimon, who usually does expound the rationale of the verse, says: that can’t be the reason, because you don’t need to write the reason—I can derive that myself. If the Torah wrote something, then apparently it’s another command. It’s not the reason for the previous prohibition, but an additional command. That’s how he reads it. But Maimonides writes that there is a third Tanna there. It starts with some kind of heading, and it looks like an opening to the dispute between Rabbi Shimon and Rabbi Yehuda, but Maimonides says it’s not an opening—it’s a third Tanna. And he rules in accordance with him. And that third Tanna, the anonymous first Tanna, says that one does not expound the rationale of the verse even where the reason is written explicitly. And that’s how Maimonides rules in practice. He does not rule like Rabbi Yehuda; he rules like a third Tanna, contrary to what people think. And what does that mean? Why don’t we expound the rationale of the verse even when the reason is written explicitly? If the problem were that maybe I’m mistaken and maybe the real reason is some other reason, then when the reason is written explicitly in the Torah there is no such concern, right? The Torah itself wrote the reason, so what’s the problem? This isn’t my own interpretive speculation. Rather, you see in Maimonides that there is a principled issue here: one does not expound the rationale of the verse not because of the concern that maybe you’re mistaken, maybe there is another reason and not the one you think. So what is the idea? It could be that the idea is that in a place where there is dissonance between what is written and the purposive interpretation—yes?—between what you find to be the reason, then apparently you made a mistake. Because it just can’t be that the Torah wrote itself in an imprecise way. And since that is so, we follow what is written in the Torah, because that is the precise formulation. And therefore one does not expound the rationale of the verse even when the reason is written explicitly. Why? Because even if the reason is written explicitly, if that reason leads me to a different conclusion from “He shall not multiply wives for himself”—like Abigail, which is the practical case the Talmudic text brings, a righteous woman like Abigail, in which case maybe one may multiply wives—fine. It says, “He shall not multiply wives for himself.” It doesn’t say… there are no qualifications. Afterward it gives a reason. But if that reason leads me to a conclusion that does not fit what is written, then that means I didn’t understand something in the reason correctly, even if it is written.
[Speaker G] And how is that expressed?
[Rabbi Michael Abraham] Meaning, how is that expressed in Maimonides?
[Speaker G] If the reason in the verse seems plausible.
[Rabbi Michael Abraham] Not plausible, but whether it fits the wording of the prohibition. It’s not a matter of plausibility in the explanatory sense. The question is whether what follows from the reason fits what follows from the wording of the prohibition itself.
[Speaker G] So then if it fits, there’s no problem.
[Rabbi Michael Abraham] Right—if it fits, then there’s no problem, so what’s the issue? After all, you want to expound the rationale of the verse; you want to interpret not according to the wording of the prohibition but according to the reason. But if it comes out the same, then there’s no dilemma. So I think that here, regarding “He shall not multiply wives for himself, lest his heart turn aside,” this is actually a good example. Because the Talmudic text says, “He shall not multiply wives for himself”—except like Abigail. If it’s like Abigail, then it’s okay. So it could be that we just didn’t understand correctly. Even multiplying wives like Abigail turns his heart aside. Because if the king is always busy with his harem, then even if all the women are perfectly righteous and innocent, it still turns his heart aside. That’s not what he ought to be occupied with all the time. And precisely because of that, even though the reason is correct—not because we’re speculating that maybe there’s some other reason we didn’t grasp. Here it’s written in the Torah: “lest his heart turn aside.” The Torah itself says what the reason is. But if we understood from that reason a practical law that does not fit the formulation of the law in the Torah itself, then apparently we did not understand the reason correctly. And therefore we follow the Torah’s formulation, not because of concern over error or anything like that. In any event, what lies behind all this—and without getting now into the details of the topic of expounding the rationale of the verse—what lies behind it is basically the following claim, and this really comes up there in the topic in Sanhedrin; I won’t go into it now. But what’s the point when we change the Jewish law? What does that actually mean? If we go back to widow’s garments and to the example that’s been accompanying us with supposed changes in Jewish law, exegetical conservatism, and everything we discussed in previous sessions—basically the claim is that the Torah does not prohibit taking collateral from a widow at all. What is written—“You shall not take a widow’s garment as collateral”—is only an example. What the Torah prohibits is harming people who are economically weak. A widow was just the example; that’s not the point. There is no prohibition at all against taking a widow’s garment as collateral. We’re not changing the Jewish law, we’re not expounding the rationale of the verse—we’re simply being exegetically conservative. Right? What are we really doing? We’re saying: it doesn’t really say, “You shall not take a widow’s garment as collateral.” What it says is: don’t harm people who are economically weak—or socially weak, economically weak, whatever. That’s what it says. “You shall not take a widow’s garment as collateral” is only the practical form of expressing that. Now if I see it that way, then obviously when I encounter a wealthy widow there is no dilemma at all. It’s not that the Torah prohibited it and now I’m coming to change or reinterpret. No—the Torah never prohibited that in the first place. Widow was just an example. The Torah meant: don’t harm weak people. A wealthy widow is not a weak woman, so what’s the issue? Then this isn’t change at all—it’s exactly the question of exegetical conservatism from the earlier discussions with bathing suits.
[Speaker H] So a poor widower would also be forbidden?
[Rabbi Michael Abraham] What? A widower… right, yes, a poor widower would also be included—that’s the practical implication in the opposite direction. Exactly. So those who want to expound the rationale of the verse are not changing the Jewish law. They’re simply saying: that’s not the law. The law is not “do not take collateral from a widow,” but “do not harm weak people”—that’s the law. And now let’s see: it is forbidden to harm weak people. Someone who is weak but not a widow, or a widow who is not weak—that’s the practical difference.
[Speaker G] But it could be that when the Torah says, “You shall not take a widow’s garment as collateral,” it means: the category of widow is generally weak, and you should not get into the specific case—categorically it prohibited it.
[Rabbi Michael Abraham] The common understanding is that this is what’s called “no distinctions.” It’s “no distinctions.” A law has already been fixed, so we don’t enter into exceptional details.
[Speaker G] If the whole category came out of the assumption—
[Rabbi Michael Abraham] The simple assumption, at least among the early commentators—and mainly the later ones—is that “no distinctions” is always rabbinic. The Torah does not do “no distinctions.” The Torah says the truth. And whatever is true is true. It could be that the Sages, in places where they fear error and maybe we won’t interpret correctly and so on, will make a “no distinctions” rule. But the assumption is that the Torah doesn’t deal in such decrees or in plugging loopholes; it says what truly ought to be done, the pure truth. And the Sages are the ones who worry about loopholes and things like that. So that’s really the tension behind all this: whether what was prohibited is the prohibition itself, or whether in fact the reason is what is prohibited. Meaning, the prohibition is not really the prohibition—the reason is what matters. Say, “One may not read by candlelight lest he tilt it.” I’ve moved now to something rabbinic, but that doesn’t matter—it’s just for the example. “One may not read by candlelight lest he tilt it.” What’s forbidden? Reading by candlelight? Or is what’s forbidden being in a situation where maybe you’ll tilt it? Doesn’t matter what kind of situation—it could be a situation that has nothing to do with reading by candlelight but something else. Doesn’t matter. If I say, “One may not read by candlelight lest he tilt it,” then the prohibition “one may not read by candlelight” is just the example. Really the prohibition is getting into a state of “lest he tilt it”—that’s the problem. Fine, so now you have to see whether there is a concern of “lest he tilt it” or not. It has nothing inherently to do with reading by candlelight. That’s not changing the Jewish law. The law does not prohibit reading by candlelight. So these questions are really asking whether the prohibition is the prohibition, or whether the prohibition is the reason. There would be room to connect this—
[Speaker B] Wait, but—
[Rabbi Michael Abraham] Those halakhic decisors who do not expound the rationale of the verse therefore say that the prohibition is the prohibition and not the reason. Right? And if you do expound the rationale of the verse, then you’re basically changing the prohibition. Right. But we need to understand when, and whether at all, one may do that. Right. But that’s what lies behind it. Rabbi Shimon apparently held that the prohibition is really the reason, and not the prohibition itself. We’ll see this, because with regard to changing enactments, in the examples I gave, there are medieval authorities (Rishonim) who want to say that this is exactly why we change things—because the prohibition is not the enactment but its reason, and therefore it isn’t change at all. There would be room to connect this—although I don’t think it’s actually connected—to the question of what the essence of a halakhic command is. Because not harming a widow, or not harming a miserable person, fine—that’s a rationale anybody understands, and one ought to do it even without the Torah commanding it. But in a place where the Torah states some halakhic prohibition, a halakhic prohibition means there is something here beyond the actual content of the command: the very fact that there is a command. I think I once mentioned Rabbi Elchanan Wasserman’s article, in his article on repentance in his Kovetz Maamarim, where he brings in the name of the Ramchal that every commandment and every transgression has two aspects. There is the aspect of the command, or rebellion against the command, and there is the essential aspect. For example, someone who eats pork has done two problematic things. One problematic thing is that he rebelled against the Torah’s command not to eat pork, and the second problematic thing is that he ate pork. Meaning, when the Torah prohibited eating pork, there was some reason for it; there is some problem with eating pork. So when he ate the pork, he also created that problem—that’s the essential problem. And besides that, there’s the fact that he did not obey the command, the very fact of noncompliance. Command—that itself. Therefore he says, for example, a practical implication is: what about someone who did it unintentionally? If someone transgressed unintentionally, then there is no noncompliance with the command, because he didn’t know there was a command. That’s a personal obligation issue, obedience to the command. But the prohibition itself he did commit—at the end of the day, he ate pork. And with rabbinic prohibitions, for example, there is Netivot—I think I mentioned this—Netivot in section 234, who says that for an unintentional rabbinic prohibition, one doesn’t need to repent at all. Why? Because his conception is that a rabbinic prohibition is, in essence, only a personal obligation of obedience to the Sages. There is nothing essential there. If there were something essential, it would be Torah law. Here it’s not a real problem in itself; it’s only that the Sages prohibited it—a decree lest you come to something, a fence, all sorts of things like that—but in itself it’s not a problematic act. So if I did it unintentionally, then there is no issue of obedience to the Sages, because I didn’t know they had commanded it; I was acting unintentionally. And the essential problem doesn’t exist at all in a rabbinic prohibition. So therefore there’s no problem—one does not need to repent at all for an unintentional rabbinic prohibition. That’s what Netivot argues. Now, if I really understand that every commandment and every transgression has those two aspects, then maybe there would be room to understand that this is also what lies behind the question of the relationship between the prohibition and its reason. How can you separate the prohibition from its reason? After all, if the reason for the prohibition is that you are harming a weak woman—“You shall not take a widow’s garment as collateral”—then in fact the prohibition is not taking a widow’s garment as collateral; the prohibition is harming a weak person. That is really the prohibition, no matter how you phrase it. But he says no—that’s the essence of the prohibition, but there is also the command. The command was: do not take a widow’s garment as collateral. And this tension between the command and the reason is really between those two aspects of every commandment and every transgression. The command was: do not take a widow’s garment as collateral. True, the reason is that I do not want to harm a weak person. But that only means that if I did not harm a weak person—say, I took the garment of a wealthy widow as collateral—then the essential problem for which we were commanded is absent. But at the end of the day, I still rebelled against the Holy One, blessed be He; He forbade me to take a widow’s garment as collateral. So that aspect is present here. Why don’t I think this is really connected? Because if I really think that the prohibition is the reason, then the command is also about the reason. Once I interpret this prohibition as a prohibition against harming a weak person, then presumably what the Torah commands is also only not to harm a weak person. Not that the Torah commands not to harm a widow while the essence is not to harm a weak person. No—if that really is the essence, then why not assume that this is also the content of the command? Then the dimension of command will also still be there. But this is a bit connected to what you asked earlier about “no distinctions.” Can there be a gap between what the Torah commands and what it really wants to achieve?
[Speaker F] Yes, because that’s really the same thing. It’s like letter of the law and spirit—
[Rabbi Michael Abraham] Of the law? Yes, I think so. Interpretation—what’s called purposive interpretation—and what you call the spirit of the law. So spirit of the law is basically purposive interpretation: what the law came to achieve, and I interpret it accordingly.
[Speaker G] Excellent, sorry—is there perhaps a principled problem here? Because if I interpret the reason for the widow’s garment as “don’t harm the weak,” and let’s say this weren’t a command at all—there were only a command not to harm the weak—in that case there are no boundaries at all to this law. What is “weak”? The Torah draws a line. Once you draw a line, then obviously near that line you’ll always find exceptions, and then you’ll get exactly the tension we’ve been talking about.
[Rabbi Michael Abraham] No, once again, you’re going back to “no distinctions.” So again the question is what to do with the exception.
[Speaker G] Not exactly. It’s not a problem of “no distinctions.” I’m suggesting an alternative: there is no alternative to giving a specific command here, even if behind it there is some general principle. Because otherwise you don’t know where to place the line. He placed the line, so that’s the line.
[Rabbi Michael Abraham] Okay, but the question still remains: what do you do in such a case now, when there’s an exception? According to your reasoning, then—
[Speaker G] On the contrary. According to your reasoning, if the reason is the purpose of the command, then automatically I also didn’t violate the command. But if the Holy One, blessed be He, decreed that this is where the line is drawn, then that is the command I violate, even if the reason for the command is essential.
[Rabbi Michael Abraham] You’re going back again to “no distinctions.” So you’re basically saying that even though the essence is not to harm a weak person, still, once the Torah had to command and needed to place the line, it said: widow. That’s the line. Okay—but now it turns out to be a formal command, because in essence there are wealthy widows and there are miserable people who are not widows. So what do we do with them? So we’re back again to the question of “no distinctions.” Fine, so it’s basically the same thing.
[Speaker E] Not exactly. When Saadia Gaon talks about the reasons for commandments, he says that rational commandments we could have understood ourselves, but then we would not know the measure—what counts as theft: the value of a perutah or less than a perutah? So here you could say that it defines it, because “don’t harm the weak” is too general, and then they’ll ask who counts as weak.
[Rabbi Michael Abraham] But I’m asking you what happens with a wealthy widow—does that also fall under this category? The question still stands. You’re telling me widow is a level of misery—
[Speaker E] Such that from there the Torah came to forbid harming. Why is there a need for a command once I know the reason?
[Rabbi Michael Abraham] No, I understand that. I’m just saying that from the standpoint of our principled question here, what do we do with exceptions? That doesn’t solve the problem. I’m still going to ask what to do with a wealthy widow. If you say that widow is the level of vulnerability from which harming is forbidden, a wealthy widow isn’t there.
[Speaker E] Come on, take the other side of the equation here. What counts as harm? Let’s say you accept this rule of not harming the weak. Then what will count as not harming? If I don’t say good morning to her, is that harming?
[Rabbi Michael Abraham] Fine, but it says not to take collateral.
[Speaker E] Fine, okay. So that defines what the harm is. But if you abstract it to the level of—no—
[Rabbi Michael Abraham] I understand what you’re saying, I understand it and accept it. I’m saying that as far as our problem goes, it doesn’t solve it. Because we’re talking about a situation where the reason does not apply, not a situation that goes beyond it. I’m not asking what happens with someone who is a little less miserable. Then you say, fine, that’s the line the Torah drew. I’m asking: what happens with someone who isn’t miserable? There are widows who are not miserable—very wealthy widows, the widow of Baron Rothschild. What do I do with her?
[Speaker E] But the same consideration you’re making—if one expounds the rationale of the verse, that’s what they’re doing, they’re interpreting—you’re saying: wait, but if that’s the reason, then I’ll also prohibit this kind of harm.
[Rabbi Michael Abraham] That’s where there is—
[Speaker E] We’re talking about permitting.
[Rabbi Michael Abraham] No—but you’re talking about a case where there is a continuum of levels, and the Torah determines at what level the prohibition begins. With that kind of case I have no problem at all. There I’m not asking whether one expounds the rationale of the verse or not, because obviously that also fits the rationale of the verse. The Torah says: from this level of vulnerability and on, one does not take collateral. But I’m asking what happens with a woman who is not vulnerable—not that she is… fine, okay, so the question still remains.
[Speaker G] So I only raised this because of your apparent dismissal of Rav Asi’s claim. I didn’t dismiss it at all. I didn’t dismiss it—you said it doesn’t seem right to me.
[Rabbi Michael Abraham] No, I only said that it’s not connected to the question of the reason for the verse. I didn’t say—I completely agree with what Rav Assi said. The claim is that it doesn’t seem to me that that’s what lies behind the question of the reason for the verse. He also doesn’t say that about the reason for the verse. I only thought that maybe it could be connected to this, and it seemed to me—but no. Fine. So now, with rabbinic enactments, it’s the same thing. There too we do not interpret according to the reason for the verse. At least that’s the accepted view; that’s how Maimonides rules. Meaning, we do not interpret the enactment purposively; we do not interpret the enactment according to its reasons. And that is exactly the same mechanism as with a Torah-level prohibition, except that regarding a Torah-level prohibition this is stated explicitly in the Talmud—the dispute between Rabbi Shimon and Rabbi Yehuda, and the Jewish law follows Rabbi Yehuda, or like that tanna I mentioned earlier. Regarding rabbinic enactments, there are some expressions about this in the Talmud in tractate Beitzah, but in the end the halakhic decisors disagree on this matter. It’s not something fully agreed upon. And here, let’s start getting a bit into the issues themselves. So Maimonides says as follows in Laws of Rebels, chapter 2, the beginning of chapter 2: “If the Great Court derived a law through one of the hermeneutical principles, according to what seemed correct in their eyes, and they judged that the law is such-and-such, and another court arose after them and found another reason to overturn it, that later court may overturn it and judge according to what seems correct in its own eyes. As it is said: ‘To the judge who will be in those days’—you are obligated to follow only the court of your own generation.” And where is this Maimonides talking? About Torah law. Yes, this is Torah law, although derivations are not exactly Torah law according to Maimonides, but yes, in principle this is speaking about Torah-level laws. We already read this. And there, you don’t need it to be a court greater in wisdom and number, but it does need to be a court, because something established by a numbered court requires another numbered court to permit it. Whether it must be greater in wisdom and number or not—that’s another question. Halakhah 2: “If a court enacted a decree, instituted an enactment, or established a custom, and the matter spread throughout all Israel, and another court arose after them and sought to nullify the earlier matter and uproot that enactment, that decree, or that custom—it cannot do so unless it is greater than the earlier one in wisdom and number.” That is in rabbinic law. In rabbinic law, you need a court greater in wisdom and number in order to change it. “If it was greater in wisdom but not in number, in number but not in wisdom, it cannot nullify their words. Even if the reason because of which the earlier ones decreed or enacted has ceased, the later ones cannot nullify it unless they are greater than them.” Even if the reason has ceased, you can’t nullify it without a court—that for sure—but even with a court, it has to be a court greater in wisdom and number. More stringent than Torah law. Because in Torah law, any court can overrule a previous court on the same level—say, Sanhedrin against Sanhedrin or something like that—but it doesn’t have to be greater in wisdom and number. But in rabbinic law, no: only if it is greater in wisdom and number, even if the reason has ceased. If it spread. What? If it spread, yes—a decree that already, yes, that was established. Because if it didn’t spread, then from the outset it never took effect,
[Speaker G] then it’s not an enactment.
[Rabbi Michael Abraham] So we once talked about the meaning of “spreading.” I said it needs a stamp of approval from the street that this is accepted. No, fine, okay, we won’t get into that now. So this claim of Maimonides—that even if the reason has ceased—the Raavad there comments: “Said Avraham: the adorning of the markets of Jerusalem with fruits is difficult for him, for the earlier ones enacted it and Rabbi Yohanan ben Zakkai nullified it after the destruction.” Yes, they no longer brought first-fruits to Jerusalem, so they did not adorn the markets of Jerusalem with fruits, and therefore Rabbi Yohanan ben Zakkai nullified that enactment. So the Raavad objects to Maimonides: Rabbi Yohanan ben Zakkai nullified it after the destruction because the earlier reason had ceased. And he was not greater than the earlier ones. So how can Maimonides say that if the reason has ceased you still cannot change it unless you are greater in wisdom and number? Here we have an example from the Talmud that Rabbi Yohanan ben Zakkai nullified the enactment of adorning the markets of Jerusalem with fruits. And this Raavad is especially amusing, because what is he really assuming? That Rabbi Yohanan ben Zakkai was not greater than the previous generations. What’s the question?
[Speaker G] No, but that also isn’t really Jewish law, it’s just markers, something like that. No, what do you mean?
[Rabbi Michael Abraham] Adorning the markets of Jerusalem with fruits is Jewish law—what do you mean? They instituted an enactment to adorn them.
[Speaker G] But it’s something symbolic, not substantive Jewish law.
[Rabbi Michael Abraham] Nobody thinks that way; in the Talmud there are no such distinctions. In any case, what does the Raavad want? What’s the problem? How do you know that Rabbi Yohanan ben Zakkai was smaller than the earlier ones? Maybe he was greater, and therefore he could nullify it—so what objection does he have against Maimonides? He is obviously assuming as self-evident that Rabbi Yohanan ben Zakkai was smaller. Why? Because he came later; there is decline of the generations, right? So anyone later is
[Speaker I] presumably smaller; there is decline of the generations, no?
[Rabbi Michael Abraham] But then tell me how this could ever happen. It could never happen. How could there ever be a situation in which
[Speaker I] a later court is greater and can nullify the earlier enactment? By definition, if it is later then it is smaller. So why is it specifically written that he was smaller than all the courts of Hillel the Elder?
[Rabbi Michael Abraham] Yes, but I don’t know who instituted the enactment there—Hillel the Elder specifically? I’m not sure. I don’t think that’s what they hinged it on. So what is the meaning of this? He assumes decline of the generations, says it can’t be that someone later would be greater; so if so, there you go—how did Rabbi Yohanan ben Zakkai nullify the enactment? A sign that you don’t need to be greater. Or a sign that your assumption is wrong, that whoever is later is always smaller. That’s not true. And especially according to his assumption, this halakhah—that you need a court greater in wisdom and number—has been emptied of content. Because the nullifying court is always later than the court that instituted it, right? By definition, otherwise it can’t nullify forward. Now if it is later, and by definition everyone later is smaller, then there can never be a situation where a later court is greater and can nullify the enactment.
[Speaker H] And therefore he doesn’t agree with Maimonides.
[Rabbi Michael Abraham] No, but this law of a court greater in wisdom and number is in the Talmud. He disagrees with Maimonides that even if the reason for the enactment has ceased, you still need a court greater in wisdom and number—but that itself is Talmudic.
[Speaker E] It can be forward and it can be crass. What?
[Rabbi Michael Abraham] And it can be crass, it can be forward. Okay, fine, we won’t get into that minefield now.
[Speaker G] Okay, so how does Maimonides say this in the end? What? How do you understand the Raavad?
[Rabbi Michael Abraham] The Raavad apparently assumes—I don’t know—maybe he assumes decline of the generations; maybe there was some suggestion here that perhaps because it says in the Mishnah in Oholot there that he was the smallest of them all, I don’t know. In the Meiri, in any case, what I want to say regardless of how the Raavad understood decline of the generations—the Raavad argues that if the reason has ceased, then you do not need a court greater in wisdom and number. For our purposes right now, it doesn’t matter how he understood decline of the generations, but halakhically he disagrees with Maimonides. He says that if the reason has ceased, then you do not need a court greater in wisdom and number; you can change the enactment even with a court that is not greater in wisdom and number. In the Meiri, in the Ritva—in the Meiri on Beitzah 5a—they also say like the Raavad. The Meiri writes: “Anything done by a counted assembly,” meaning a gathering of sages who convened on this matter in formal session, “even though the reason because of which they prohibited it has already passed, and were the matter considered now they would not prohibit it—” that is exactly the point—even they themselves, if they were alive now, would not prohibit it, because the reason no longer exists—“even so, it cannot be permitted except by another counted assembly, whether equal to it or even lesser than it.” Like the Raavad: it does not need to be greater in wisdom and number. “But a matter done by a counted assembly where the reason because of which it was established has not passed, and now they want to nullify that matter—they cannot nullify it unless they are greater than that assembly which prohibited it in wisdom and number.” Like the Raavad.
[Speaker I] Tosafot also says this in several places. I remember about final waters—they say there is no Sodomite salt.
[Rabbi Michael Abraham] No, those are already examples. At this point I haven’t gotten into examples at all; I’ve only been talking about the principled possibility of nullifying laws. We’ll get to examples shortly, because Sodomite salt, uncovered water, and things like that—we’ll get to them.
[Speaker K] So should we distinguish between a case where reality changes and the halakhic basis—the commandment—changes?
[Rabbi Michael Abraham] In the examples that are brought, it seems there is no distinction. Usually the reason is some reality. A change in the reason means the reality changed. For example, the Temple was destroyed, so people no longer make pilgrimage, and there is no need to adorn the markets of Jerusalem with fruits. So that is a change in reality. And still, it is seen as something where you cannot change the Jewish law.
[Speaker J] The commandment of pilgrimage no longer exists; the commandment has lapsed, right? Meaning, the source of the reason is its commandment.
[Rabbi Michael Abraham] But there are also things of pure reality. Rather, as we saw in several places, they see that a mere change in reality alone—I’ll show examples in a moment.
[Speaker L] I also wanted to ask: if reality changes and the reason is gone, then naturally people just stop doing it, and they don’t need a court to declare it.
[Rabbi Michael Abraham] No, they do need one, because the moment
[Speaker L] there is a law, a court must permit it.
[Rabbi Michael Abraham] No—not that there are no more sacrifices.
[Speaker L] And it lapses on its own.
[Rabbi Michael Abraham] No, the sacrifices do not need to be nullified; there is nowhere to offer them. They nullify the enactment of adorning the markets of Jerusalem. People would—it’s like the broom of the Gerrer Rebbe—people would go on adorning the markets of Jerusalem even though nobody was coming anymore, the Temple had been destroyed. Yes, do you know the story of the Gerrer Rebbe and the broom? It’s the same thing. They basically keep adorning the markets of Jerusalem with fruits even though in fact people were no longer making pilgrimage. At least theoretically. And then the sages came and nullified that enactment: no need, okay? Not the offering of the sacrifices themselves.
[Speaker M] Someone here thinks the reason is part of the enactment.
[Rabbi Michael Abraham] I’ll get to everything, I hope. Okay, one more general remark before we get into specific mechanisms. In the Tosafot of the Rosh on Bava Metzia 90, the Tosafot of the Rosh speaks about the reason for the verse, and he says—and I think this fits the approach that maybe the reason is unclear, and therefore we do not interpret according to the reason for the verse—he says that where the reason is clear, then yes, we do interpret according to the reason for the verse. If it is clear that this is the reason, then yes. Again, this probably stems from the approach that says that… Clear by logic? By logic, yes. An example? What? I don’t remember which example he discusses there, but that’s what he writes there. There is also a responsum of the Rosh, in klal 2, siman 8, about rabbinic law. He says: “This is not comparable to something done by a counted assembly, which can be permitted only by a court greater than it in wisdom and number. For since the reason for the prohibition is known, if the reason ceases, the prohibition ceases automatically.” This is talking about rabbinic law. The same thing he says about Torah law in his commentary on the Talmud or in his rulings, he says here in a responsum regarding rabbinic law. And then this becomes a very big question: when is the reason considered clear? What does it mean that the reason is clear? It’s hard to draw a line. The sages in that time and place have to decide whether this counts as a clear reason or not. But it opens a door that, to a significant extent, somewhat empties this whole halakhah of content. And this connects to what I said—I think it was last time or the time before—when I spoke about the meaning of rules in Jewish law, how far we actually follow rules. So I said that in Jewish law there is a kind of contempt for rules, and one has to be careful with rules. So both “we do not interpret according to the reason for the verse” and “you need a court greater in wisdom and number, so even if the reason has ceased you still do not follow the reason”—people just justify things and deviate, that’s it. So this Rosh even writes a sort of sub-rule on the table that qualifies the matter: where the reason is clear, then yes, it is possible.
[Speaker E] The Rosh himself is the one bringing in this whole business of “greater than it in wisdom and number.”
[Rabbi Michael Abraham] Regarding when the reason has not ceased?
[Speaker E] When the reason has not ceased—or when the reason is not clear.
[Speaker G] No,
[Rabbi Michael Abraham] Fine, it’s the same point. If the reason is not clear, then you don’t know whether the reason has ceased. It’s the same issue.
[Speaker G] It sounds like you don’t even need a court. He says it lapses automatically.
[Rabbi Michael Abraham] Yes, it lapses on its own,
[Speaker G] yes, there’s no court at all.
[Rabbi Michael Abraham] In the time of the Rosh, after all, there was no Great Court. So this really opens a very large door, of course. There are many places where the reason seems clear to us, and it may be that in those places one really can change things. You don’t even need a counted matter; you don’t even need one greater in wisdom and number; you don’t need any court at all—it lapses by itself. And what is the idea behind that? Where the reason is clear, apparently the Rosh understands that what was enacted was the reason, not the prohibition. The reason was prohibited; where the reason is absent, the prohibition does not exist. Like “he shall not multiply wives for himself, lest his heart turn away”—so what is prohibited is turning his heart away, and where that does not turn his heart away, the prohibition does not exist.
[Speaker E] Is he saying this both for Torah law and rabbinic law?
[Rabbi Michael Abraham] Yes. For Torah law he says it in his rulings, and for rabbinic law he says it here in this responsum. Now I’ll add a few more mechanisms and examples so we can see that this business is not impossible even today. There are situations in which continuing to act according to the existing law causes harm—not merely that it lacks a reason. If it merely lacks a reason, fine, we want to preserve the halakhic framework so we do not change it. What happens when it causes harm? Agunot? What? No, agunot is something else, because the Talmud itself already says that one can be lenient there—testimony of one witness and so on. But what happens when it causes harm? Sometimes even today, at least it seems to me, the very preservation of something that has no reason causes harm—not because there is some additional harm, but because this itself is a desecration of God’s name. Meaning, when there is mockery and criticism of these things, that itself is, I think, a not-simple kind of harm. And this criticism also comes from inside, not only from outside by people who are not obligated. People feel this. Yes, now that we’re approaching Passover, I just can’t with this kitniyot business. This thing is downright ridiculous—just such nonsense. And it’s hard. So now you can say, fine, but it doesn’t really cause harm, so we eat fewer things on Passover. But I’m saying the harm is… the very fact that you observe nonsense, and you say, “because that’s what our rabbis and ancestors did,” I don’t know exactly what. It has no rhyme or reason, and you do it because—then it looks like a joke. It simply turns the whole system into a joke. And when significant percentages of the system are in that state—as I said last time—that’s even worse. Then it puts the whole logic of the system in question. To what extent is this system even reasonable to follow at all? In such situations, I think sages do this often. In such situations they change things even though it doesn’t meet the criteria we discussed earlier. Why? Because all the criteria I discussed earlier—I think the logic there is clear. Not only the need to protect the need, but also a defense of the very matter itself, meaning the justification. Where this is… there is a famous Maimonides. Ah yes—that this whole rule said in the Talmud and afterward in Maimonides, that you do not change a law even if its reason has ceased—all of that was said regarding changing enactments. Right? But if it brings harm, that is not a nullification of that enactment. The sages of this generation are instituting a new enactment that freezes the previous enactment. Is it permitted to enact something even against the Torah? Yes. The sages do this. A rabbinic enactment means that the sages freeze a Torah law or make some addition to Torah law, something the Torah itself does not say. Fine? Sometimes it is even against the Torah—not to blow the shofar on Rosh Hashanah when it falls on the Sabbath, yes, and things like that. So they freeze it. So what? It is possible to freeze a Torah law, but impossible to freeze a rabbinic law? Here we are not nullifying the law. We are freezing it; making a second-level rabbinic enactment. We make an enactment that in our day we do not observe the first enactment. We are not nullifying it, because we are not greater in wisdom and number. But since this brings harm, it is the role of sages that when something creates harm, they intervene and institute an enactment. Right? My claim is that one can enact not only regarding Torah law; one can also enact regarding rabbinic law. Now let me bring you some proof from Maimonides. The same Maimonides in the same place, one halakhah later—I read halakhot 1–2; this is halakhah 4. “A court has the authority to uproot even these matters temporarily, even though it is smaller than the earlier ones, so that these decrees should not be more stringent than the words of Torah themselves”—literally what I just said now, he said it by divine inspiration. “For even words of Torah, any court may uproot temporarily as a temporary ruling. How so? If a court sees a need to strengthen religion and make a fence so that the people will not transgress words of Torah, they strike and punish not according to the strict law—but they do not establish the matter for generations and say that this is the law. And similarly, if they see a need temporarily to suspend a positive commandment”—like blowing the shofar, yes—“or to transgress a prohibition in order to bring many back to religion, or to save many in Israel from stumbling in other matters, they act according to what the hour requires. Just as a doctor cuts off this person’s hand or foot so that the whole body may live, so too a court may instruct at certain times to violate some commandments temporarily so that all may endure, in the way the early sages said: ‘Desecrate one Sabbath for him so that he may keep many Sabbaths.’” Laws of Rebels?
[Speaker H] What? Laws of Rebels?
[Rabbi Michael Abraham] Yes, chapter 2, halakhah 4. Now this is very strange—his reasoning is strange, because he himself established in halakhot 1–2 that rabbinic law is indeed more stringent than Torah law. Because with rabbinic law he requires a court greater in wisdom and number in order to change it, whereas Torah law—any court in any generation can change what the previous court established; it does not need to be greater in wisdom and number. So you yourself say that rabbinic law is harder to change than Torah law. And from here he says it as a kal va-homer: if sages can enact against Torah law, then certainly they can enact against rabbinic law. I think what he means to say is that when you are talking about nullifying or changing the law, then in rabbinic matters the sages indeed made their own words more stringent than Torah law, and one does not nullify rabbinic law unless one is a court greater in wisdom and number. I also explained once, I think when we studied these laws, the idea behind this: when you disagree with a court that instituted an enactment, you are disagreeing with the court that instituted the enactment. In order to disagree with them, you must be greater than them in wisdom and number. But if you change a law that they interpreted from the Torah, you are not acting against their authority. You are claiming that the Torah does not say that but says something else. So you are not disagreeing with them; rather, you are claiming that the relevant interpretation for this generation is the interpretation of the court of this generation, and that is what the Torah says. Therefore, you do not need a court greater in wisdom and number. So it is not even that “the sages made their own words more stringent than Torah law”; rather, in the essence of the matter that is really how it works. Now here Maimonides is not talking about that. Maimonides is not talking about that. Maimonides also emphasizes: “A court may uproot even these matters temporarily.” Why temporarily? To change? No. He is talking about instituting an enactment that freezes the first enactment.
[Speaker B] And therefore it is temporary.
[Rabbi Michael Abraham] Exactly. Therefore it is temporary. And when one enacts an enactment to freeze the first enactment—if one can enact to nullify a Torah law, then can one not enact to nullify a rabbinic law? Only yes, always, even a rabbinic enactment that nullifies Torah law is always temporary. It’s just that, as is well known, nothing is more permanent than the temporary. But all the rabbinic enactments they enacted were basically supposed to be temporary. Yes, not blowing the shofar on Rosh Hashanah that falls on the Sabbath—that was supposed to be temporary. The sages cannot do that for all generations, apparently; that is basically what he is saying. But as long as they did not nullify it, it remains. It is “temporary” in the sense that any court can nullify it. And I don’t know if I’ll manage to get to this, but there are places where you see in the medieval authorities (Rishonim) that if there is an enactment that nullified Torah law—not every enactment is like that; adorning Jerusalem with fruits nullifies nothing, it’s just adorning Jerusalem. But there are enactments that nullify Torah law, like blowing the shofar, for example, and others. In those places, it is indeed possible to restore the Torah law. Because the first enactment was only a temporary uprooting of Torah law as long as it was needed. But when a court now sees that it is no longer needed, it is not uprooting the first enactment. It says: okay, it reached this point; we return to Torah law; we are going back to Torah law; I am not doing something of my own. So there are medieval authorities who say that such a case is also possible. So enactments that uproot Torah law are another category in which one can change things even without a court greater in wisdom and number. Therefore I say that very often there is a situation—and I think it’s simple even though it sounds like technical cleverness—there is a difference between my coming to nullify the first enactment and my coming to institute a second-story enactment that temporarily freezes that enactment. As long as the circumstances are as I see them, I freeze it. That is a second-level rabbinic enactment. And I think it is simple that a court can do this anywhere; that is its role. It can uproot Torah law and do whatever it wants when it sees that the hour requires it, because “desecrate one Sabbath for him so that he may keep many Sabbaths.” So with respect to this law too—after all, the court that institutes the enactment is violating Torah law, right? So with respect to this law that says you do not change the law unless you are greater in wisdom and number—that law cannot be violated? That law too I can violate, right, where the hour requires it. Where the hour requires it, say I am a court not greater in wisdom and number, but I see that the hour requires it, there is some harm and we need to nullify the first enactment. Fine, impossible—there is a law that prohibits nullifying the first enactment. And that law itself may not be set aside where the hour requires it?
[Speaker G] It depends. If it’s a rabbinic enactment, then it’s forbidden.
[Rabbi Michael Abraham] Why? Where the hour requires it, then it is possible—why not? You are assuming it itself. He himself says that this is a Torah law, but I’m saying: this law itself I can… It’s like the Knesset enacts that a certain law can only be repealed by a special majority. Yes? Now the next generation comes and wants to repeal that law, but it does not have a special majority, only a regular majority. What does it do? It repeals the clause that says a special majority is required.
[Speaker N] But you have to distinguish between procedural laws—meta-law, as it were—and substantive laws, and you’re not making that distinction.
[Rabbi Michael Abraham] No, I’m not making that distinction on purpose. Up to now I did make it; now I’m saying, wait a second—who says? A procedural law is also a law, and where the hour requires it, maybe that too can be set aside like any other law. Rav Kook writes in LeNevukhei HaDor that the rule that we do not interpret according to the reason for the verse, and the rule that you need a court greater in wisdom and number—those too can be set aside by a court. That is also a law. If a court can set aside another law, why can’t it set aside procedural laws? It’s the same thing. Why not? No, I’m saying again, the reason for the verse is
[Speaker O] not a legal ruling, and it’s also not a decree.
[Rabbi Michael Abraham] No, no, it’s a Torah-level law. Clearly.
[Speaker O] It’s a law, but it’s the reason of the Torah, it’s not—
[Rabbi Michael Abraham] Fine, but it’s a halakhic principle. “We do not interpret according to the reason for the verse” does not mean you are forbidden to interpret the Torah. On that reading, all Torah commentators violate this rule. It is a principle in Jewish law: you may not issue halakhic rulings based on purposive interpretation. Right. So that is a meta-halakhic ruling, meaning it deals with halakhic ruling. Understood.
[Speaker D] “It is a time to act for the Lord.” What?
[Rabbi Michael Abraham] “It is a time to act for the Lord; they have voided Your Torah”—another example of this, yes? Another example. Correct.
[Speaker D] That Rabbi Yehuda HaNasi went and wrote it down. Correct.
[Rabbi Michael Abraham] Why? Because where the hour requires it, that is the role of the court of that generation. The court of that generation can override everything if it sees that the hour requires it. It can set aside more than that. The Rambam unanimously—the Raavad also unanimously writes—and in Tosafot in several places as well, we know that sages cannot uproot something from the Torah by positive action, only by passive omission. But where the hour requires it, they do it even by positive action. Several medieval authorities write this.
[Speaker E] The question is, okay, you are assuming here—and you say this briefly—that nothing is more permanent than the temporary, that a temporary emergency ruling can in fact become… The examples of temporary emergency rulings are usually very point-specific, right? Elijah on Mount Carmel. Okay. That’s the type of temporary ruling.
[Rabbi Michael Abraham] No, take non-prophetic nullifications; take the rulings of the sages. Not blowing the shofar on Rosh Hashanah that falls on the Sabbath—what is that? To this very day we don’t blow. What is it? It is defined as a temporary ruling. Every enactment that uproots Torah law is a temporary ruling according to this Maimonides, because you cannot nullify Torah law—that would violate “do not subtract.” So what you do is freeze that instruction, fine, but only as long as the hour requires it. Where the reason ceases, we return to Torah law. The Torah did command that one should blow the shofar.
[Speaker E] But then you want to apply this, say—you started with the story of kitniyot. Kitniyot does not fall under either this or that. There you are still in halakhah 2, not halakhah 4, with kitniyot.
[Rabbi Michael Abraham] Why? I can suspend kitniyot temporarily, because there is no leaven mixed into it.
[Speaker E] Maybe when there is such a period… So what?
[Rabbi Michael Abraham] But I’m suspending it for the current moment. That’s my reality. Let the sages of future generations decide whether for them it does or does not apply. That is the meaning of “temporarily.” You do not have to set a fixed time. By the way, even when one sets a fixed time, the Talmud says—there are disputes in the medieval authorities and so on—that it doesn’t help; you still need a court to nullify the enactment. Even when they stipulated a time in advance in the enactment. The ban of Rabbenu Gershom was until the year 1000. Now with kitniyot there is yet another issue. Since you mentioned it, let me add another example. With kitniyot, who says this is even something that needs nullifying? In several places in the Talmud and in the medieval authorities you see—for example, I don’t know what—
[Speaker E] There’s the fact that it didn’t spread throughout all Israel.
[Rabbi Michael Abraham] There’s that, yes, but beyond that. Rather, say we cross the road at a crosswalk, right? Because that’s how one should; otherwise it’s dangerous, and so on. That’s the law, traffic law. Okay? Now they abolished traffic law—there are no cars anymore; we have planes. Fine? So now the question is whether we need to go on crossing at a crosswalk until a court greater in wisdom and number nullifies it. So I say, it depends. If the law said “cross at a crosswalk,” then maybe yes. But did we simply cross at a crosswalk because otherwise it was dangerous? Fine, the danger is gone, so that’s that. I take medicine every morning because there’s some disease in the area, I don’t know what; so they told me, take medicine to recover from that disease. That’s it, the virus is gone, the disease is over, passed. Now do I need to keep taking this medicine all my life because the reason ceased but the enactment did not? There was no enactment here. I was simply responding to a certain reality, being careful about it. The reality is gone, so that’s the end of it. What about kitniyot? With kitniyot, who says there was even an enactment? It’s absurd. There was no enactment, no custom, nothing. What happened? Wheat got mixed into their rice or their legumes. There was concern about leaven. So what did they say? We are careful with this, we don’t want to eat it, because who knows—there may be leaven there. It was not an enactment prohibiting kitniyot. Rather, in reality there was leaven inside the kitniyot, so they were careful not to eat it so there would not be leaven. In our case there is no leaven, so now what? Do we need to nullify the enactment? Is this called nullifying an enactment because its reason ceased? There was no enactment at all. It’s like that disease that passed and you no longer need the medicine. If the sages of that generation had assembled and said, because of this problem we prohibit kitniyot, period—that would have been an enactment. And then we would have to discuss it under the laws of nullifying enactments. But no: the people behaved that way because there was concern for leaven, so they were careful and did not eat those legumes because there was… So what does that mean? Because of that it suddenly turned into an enactment? Maybe a custom. Maybe. And even about custom I’m not sure that this is the right kind of custom. What? So I’m saying, now because people feel it’s problematic, they immediately turned it into a custom and a decree and “our rabbis” and “nobody disagrees” and “how could anyone?” Where people talk too much like that about these things, you understand that it is not right. It’s not, it’s not—look and see, puk ḥazi. Meaning, people did this because they really were concerned about leaven. So where there is leaven, one should do this—not because there is an enactment but because they are afraid there is leaven. But if there is no leaven, then it is like the broom of the Gerrer Rebbe. It’s the same thing. And to turn this into the categories of nullifying an enactment, and “the reason ceased,” and “a court greater in wisdom”—there wasn’t even a Great Court that enacted it, and… the whole business is bizarre. Now this thing—what?
[Speaker G] The second festival day in the Diaspora?
[Rabbi Michael Abraham] The second festival day in the Diaspora is an explicit enactment in the Talmud.
[Speaker G] Still—but the reason is known, and it’s completely absurd.
[Rabbi Michael Abraham] Fine. Now we need to discuss what to do with it. I’m entirely in favor of abolishing it, but you know—for that you need… But there it is a clear enactment; there it really falls under the category of nullifying enactments. Here I’m talking about something entirely different. There are things we do because we are responding to a situation. Someone comes to hit me from the right, so I put out my hand to stop him. So from now on, every morning, do I have to put out my hand to stop someone even though no one is there? They did not establish a rule that one has to put one’s hand here. If they had established a rule, “you must put your hand here,” I understand—there is a rule, and now we need to discuss whether the reason has ceased. But there are situations where I act in a certain way because some reality arose—not because some halakhic determination was enacted due to that reality. And this brings us back to the same question I spoke about earlier: that there is something in Jewish law beyond the reasons for the law. The mere fact that there is a command turns it into Jewish law. Because to act according to the reasons, I don’t need a command. To act according to the reasons, fine—if there is concern about leaven here, do I need an enactment not to eat kitniyot? There is concern about leaven here, so I don’t eat it because there is concern about leaven due to the Torah prohibition of leaven, not because of enactments. So what are the enactments here about?
[Speaker P] But I’ve come to terms with the idea that there is holiness in customs passed down from generation to generation, like in tradition, tradition.
[Rabbi Michael Abraham] That’s something else.
[Speaker P] Fine, what can I do?
[Rabbi Michael Abraham] You yourself said that this is apologetics. I can only agree with what you said. It’s apologetics. I don’t accept this. There is nothing in it that certainly justifies the harms caused by it. There may be something to it—tradition is a good thing, one should preserve… But one should not turn it into a principle of faith. Fine, so preserve it—but one has to pay attention to places where there is harm, where it turns the system into an object of ridicule. Then one has to qualify these things.
[Speaker I] A somewhat harder problem is the second festival day in the Diaspora.
[Rabbi Michael Abraham] It was mentioned earlier, it was mentioned earlier,
[Speaker I] because that’s already in the Talmud.
[Rabbi Michael Abraham] I completely agree, and it is also not going to come back. The Talmud itself discusses that speedily the Temple will be rebuilt, and then we will need it again. Exactly. Today, since there are means of communication, there is no doubt it should be abolished. No doubt. It is nonsense. But what can you do? It is an enactment, unlike kitniyot. So it already falls under the category of nullifying enactments. So here there’s a problem. There is no doubt it should be abolished; I just don’t know whether it can be. Because it already falls under the topic of nullifying enactments. As I said earlier regarding kitniyot, I don’t think it is even in the field of nullifying enactments. Who turned it into an enactment or decree? People were careful about leaven because there was leaven in the legumes. Tomorrow morning there may be leaven in the water, because some people put that cloth on—yes, because of leaven on Passover in something, in the Kinneret there, so they put some cloth there in… No, it’s a common custom, lots of people do it. So they put the… and from now on every Passover I’ll need to put cloth there no matter where the water comes from, whether there’s leaven there or not. They put it there because they were worried about leaven. That’s all. If there is no leaven, then don’t put the cloth. If there had been an enactment by some authorized rabbinic institution—I don’t know who that would be today, there isn’t one today, but never mind, theoretically—if there had been such an enactment, you would say one has to put cloths on the tap. Fine, then we would have to discuss—even if the reason ceased—whether the enactment can be nullified and how. But that is only when it is an enactment. If it isn’t an enactment, then what? They did it simply because they wanted to guard against leaven. That’s all. Now there is another sugya there—a passage in the Talmud—from which it sounds a bit otherwise, but I won’t manage to get into it now. Maimonides also says something similar in halakhah 9; if someone peeks at it later, it’s worth looking. Fine, now another mechanism: when the reason is mentioned in the formulation of the enactment. For example: “One may not read by candlelight lest one tilt it.” There are several halakhic decisors who wrote that when the reason is mentioned in the wording of the enactment, then there is room to say that when the reason no longer applies, the enactment is void. And this does not fall under the problems of nullifying enactments. Why? Because in most enactments they did not write the reason. Why not? They wanted to signal to us: leave it alone, don’t apply purposive interpretation. But where they did write the reason, why did they write it? Because they wanted to tell us that here indeed you should follow the reason. Meaning: where the reason applies, it applies; where it does not, it does not. On this too there are disputes among the halakhic decisors, but this too is a mechanism that appears among them. What happens when the law was from the outset set for a fixed period? I mentioned this earlier; it is really a sugya in the Talmud itself. The Talmud speaks there about nullifying enactments—obviously: “Return to your tents.” Yes, the Talmud asks why there was a need for Moses’s permission for them to resume marital relations with their wives after Sinai, when they had abstained; then afterward, “Return to your tents.” And the Talmud learns from here that another court is needed to nullify the enactment of the first court. And that nullification is “Return to your tents.” So the Talmud asks there—and the medieval authorities discuss it—after all, that was an enactment for three days: “Do not approach a woman for three days.” And that’s it. Once the three days were over, it should have ended. Rather, the Talmud learns from this that even where the enactment is limited in time, and the time has passed, it is not void until a court comes and nullifies it.
[Speaker G] Does it have to be greater in number and all that?
[Rabbi Michael Abraham] That I don’t know; it doesn’t say. But there has to be a court to nullify it. Still, the medieval authorities already begin discussing there whether yes or no and under what circumstances; I can’t get into the details here, because that too is not simple.
[Speaker H] Bottom line: if once again a court is needed, and for what kind of enactment—
[Rabbi Michael Abraham] Then maybe, for example, one consequence is that perhaps you would not need a court greater in wisdom and number; the sages of that generation would decide. Fine. The hidden-reasons approach—you already raised it—that maybe there are hidden reasons we haven’t thought of, and so on. Could be. But it could also be that not. Okay, I have here—that’s the Ran. There are Tosafot in several places, if we talked about snakes and all those matters. I already brought the Tosafot regarding interest and selling an animal to a non-Jew; I brought it in another context, there Tosafot says in the context of the Meiri. When the Meiri changed the attitude toward non-Jews, I brought there that there are two Tosafot. I brought Bava Metzia and Avodah Zarah 15. In Bava Metzia, in “Eizehu Neshekh,” Tosafot says, “Nowadays we sell animals to a non-Jew” or “we lend with interest to a non-Jew” or something like that, and he doesn’t bother to explain. He explains the enactment of need—not the need itself, he explains why there is need, because otherwise one cannot live; it is problematic, and we live among the non-Jews and cannot avoid commerce with them, and so on. But how does that fit with nullifying an enactment? And there, the reason had not even ceased; rather, a need arose. Fine? There the reason had not even ceased in principle. Say, the non-Jews are idol worshipers, so that was the context of Tosafot, or at least that’s how Tosafot viewed them. So the reason for the prohibition on selling them an animal did not cease. So why then? So what if there is need? Fine—there is need, so we nullify it. That’s what I was talking about earlier: all the laws of nullifying enactments apply when there is no need. But where there is now a need—where continuing the enactment causes harm—then the court institutes an enactment now because of the problem, to freeze the first enactment. Right? I think that’s what Tosafot are doing, without ever saying it explicitly. Dozens of Tosafot across the Talmud nullify such laws at every step.
[Speaker G] No, no—the status of the nullification—
[Rabbi Michael Abraham] There was no formal act of nullification. They simply didn’t do it, and that was that.
[Speaker G] Because you said it exists through a law parallel to it there.
[Rabbi Michael Abraham] No, he doesn’t even—
[Speaker G] he doesn’t do that, right?
[Rabbi Michael Abraham] This is an implicit enactment. An implicit enactment means it began even before that—it started from below. The people began selling animals to a non-Jew. And Tosafot describes this—Tosafot says, fine, what can be done? After all, everyone is doing it. He says: one can say there’s nothing to do; we can’t live any other way. And then, in effect, the people enacted this ordinance with their feet. There are many things that begin from below. By the way, regarding the sages too, the Chazon Ish has a very interesting idea that I once saw—it suits him somehow. I always wondered, in disputes among medieval authorities (Rishonim) or later authorities (Acharonim) on some passage, when someone discusses whether something specific is forbidden or permitted, and then someone says: this is not a Torah-level prohibition; it’s apparently a rabbinic prohibition, because it doesn’t meet the criteria of a Torah-level prohibition. So what does that mean, “it’s apparently a rabbinic prohibition”? For something to be a rabbinic prohibition, there has to be a religious court that enacted it and forbade it. What do you mean, from your own reasoning you say it’s apparently a rabbinic prohibition? Are you the rabbinic authority? Who is this “the rabbis” who prohibited it? After all, for a rabbinic prohibition to take effect, there has to be a religious court that sits and prohibits it. But no—at every turn, anyone who studies knows, at every turn you see someone saying: this doesn’t fall into that category, so it’s probably a rabbinic prohibition. Now, fair enough, when you find a prohibition in the Talmud / Talmudic text and it’s only an interpretive question whether it is a Torah prohibition, then you say: okay, so when the Talmud prohibited it, that was “the rabbis” who prohibited it. But there are situations where that’s not the case. This thing cannot possibly be permitted, so we’ll prohibit it rabbinically. It is rabbinically prohibited—not because you saw in the Talmud that it was prohibited, but because it cannot be that such a thing is permitted; it is rabbinically prohibited. So it is rabbinically prohibited. And the Chazon Ish says that a rabbinic prohibition of these kinds is an implicit prohibition. Meaning, it is obvious that the sages would want to prohibit it, and therefore it is prohibited anyway. That is, if they were sitting here and we had an authorized religious court and so on, they would prohibit it, so it is prohibited. And many times Jewish law works like that, so that’s an answer to what you asked earlier. Okay. There are situations, for example—there is the Ran in Beitzah, I think—yes, the Ran in Beitzah, no, not in Avodah Zarah. There Rabbi Yehudah sent to Korban to bring a gift on the day of their festival; he sent a gift to some idol worshipper on the day of his festival. He said: “I know of him that he does not worship idols.” I know that he does not worship idols, so it is possible to send him the animal. Right? So the Ran says there: “I found that they wrote in Tosafot”—yes, the question is how he did this; whether one expounds the reason of the verse or—I don’t know—it’s a rabbinic prohibition, doesn’t matter. “And I found that they wrote in Tosafot that it is not relevant to prohibit because of the rule that a matter established by formal count requires another formal count to permit it, since the concern that he may go and give thanks—the concern that he may go and give thanks—is relevant only to those who worship idols.” Therefore, it appears that their opinion is that when we say it requires another formal count to permit it, that applies only to permitting those to whom the reason for the prohibition applied from the outset, even though it is now nullified. But those to whom the reason for the prohibition never applied at all were permitted without another formal count. This is a very interesting principle. He wants to argue that from the outset the prohibition was made only concerning one who worships idols. So if there is someone who used to worship idols and now stopped worshipping idols—now the enactment applied to him from the outset, and now you want to change it, so you need a religious court to permit it—a formally counted matter. But if it’s someone about whom, from the outset, you say the enactment never spoke at all, because he is not an idol worshipper, or a nation that does not worship idols, like Meiri—this really takes us back to Meiri—that there is a people that does not worship idols, then regarding them these laws were never said from the outset, so this is not a change. In other words, it’s personal, apparently.
[Speaker E] What? Like the issue where they say they did not decree it.
[Rabbi Michael Abraham] Ah, because he wasn’t there. Yes, because he wasn’t there at the time of the assembly. All these maneuvers are done because everyone understands
[Speaker G] that this lacks any rationale, this thing. No, it’s not only about the person. A person—when is it relevant that the same entity upon whom they ruled changes? Wheat in its skin does not turn into…
[Rabbi Michael Abraham] The destruction of the Temple. What do you mean? The Temple was destroyed, so Jerusalem changed. There is no need to permit it regarding the produce markets.
[Speaker I] And there is another proof again from washing hands at the end of the meal. What? With washing at the end of the meal, there it is really prohibited, and Tosafot says there is no Sodomite salt. Right.
[Rabbi Michael Abraham] And also with uncovered water there are Tosafot discussions. I can’t bring them now because I didn’t have time to go through them, but uncovered water—and there are dozens of Tosafot passages. I collected them now; I can bring them to you if you want. There are lots of places like this. And Tosafot does this at every turn. In very rare places they give some kind of accounting: wait, but what about a matter established by formal count requiring another formal count to permit it? Very rare. In most of them they simply say: this is not relevant, and that’s it. Now, where is the boundary? So I too could say: in Jerusalem, from the outset they did not enact this for a city like that, which has no Temple, to permit its markets with produce… to permit its markets with produce. About anything, after all, I can say that from the outset they did not establish it. If there are no snakes, then in a place where there are no snakes they did not prohibit uncovered water. So this is basically “expounding the reason of the verse” coming in through the back door. When do you say this, and when do you say this? I don’t know. In a case where it is needed, they say it; where it is not needed, they don’t say it. No, really—I don’t think people have tried to find some criteria. There isn’t a lot of work on this, I think, but I have not been convinced that there is some sharp criterion here. And the point is really that the mechanisms I spoke about earlier are ultimately the ones underlying these things. The mechanism of need—that some need arises, and then we can make an enactment on top of the enactment and not uproot the first enactment, but make another enactment that freezes the first one; and the reason written into the enactment, which makes it possible to cancel it; and all kinds of mechanisms like that. There are a few more. If you want, I’ll send you the outline of the article; maybe we’ll send it out to everyone on the mailing list.
[Speaker E] What about the Torah-level dimension?
[Rabbi Michael Abraham] What do you mean, the Torah-level dimension?
[Speaker E] Change—that in the introduction you said that supposedly this applies even at the Torah level.
[Rabbi Michael Abraham] Those same things, I think, can also be applied to Torah-level law. Those same things? Who said? I spoke about this once. Yes, I think those same things can in principle also be applied to Torah-level law. Same thing—it’s exactly the same principle. If on this the Torah did not prohibit it, then what is the problem? I’m not changing what the Torah said. Exactly the same interpretive process. Now I’ll say one last sentence, because I really need to finish—I think I was supposed to. Just one last sentence: there are cases where what happened was not a change in reality, but rather there was an error from the outset. The sages did not correctly grasp reality. Not that there was a change. So many sages are unwilling to say such a thing, but in my view—even though Neria Gutel will get angry at me, let him get angry—not only let him get angry. I promised you, Neria. Neria Gutel, yes—he once wrote this as an initial suggestion and then rejected it. But it stayed in my mind. So I quoted it. He wrote the book The Change of Natures.
[Speaker F] The change
[Speaker C] of natures in Jewish law.
[Rabbi Michael Abraham] Yes. So he wrote some article before the book came out. And in that article he says: “change of natures” is a polished way of saying that the sages did not correctly understand reality. They did not have the scientific knowledge or something like that, and therefore they enacted something that was actually not correct. Okay? Later he objected and said: I didn’t write such a thing, and so on. Really, it seems that what he wrote there was some sort of initial suggestion that he rejected, or something like that—but clearly it’s true. I mean, the sages did not know certain things? What do you mean—are there not plenty of things the sages did not know? I can point to dozens of such things.
[Speaker E] Maimonides talks about this.
[Rabbi Michael Abraham] Yes, of course, Maimonides and his son—we talked about that. So now, what happens in a case where I reach the conclusion not that reality changed, but that from the outset, when they enacted the enactment, they did not correctly grasp reality? Lice. Lice, for example, yes exactly. That is a Torah-level law, not an enactment, but it doesn’t matter—yes, the same principle. In such a case I also think that another formal count is not needed to permit it. The sages of this generation can say: they did not enact it with this in mind, had they been living today and known the reality. Like in any contract, like in any legal process—you know that if it was based on mistaken information, then the result is not valid. That is true everywhere. When you perform kiddushin and the woman consented to the marriage with something in mind, and if something else had been revealed to her that she did not know, she would not have consented, then there is no kiddushin. What’s the difference? It is like any other legal act. Enacting ordinances is a legal act like any other legal act. And so too with enacting ordinances: once we reach a clear conclusion that it was based on some mistake, and the sages of our generation, say, reached the conclusion that it was based on a mistake, then it is not valid. There is no need for another formal count to permit it. This is not a case where the reason ceased. “The reason ceased” means it was already accepted, and therefore it also spread throughout all Israel and so on—it was accepted. And once it was accepted, then there are rules for how enactments are repealed. But here it became clear retroactively that there never was an enactment. An enactment made in error. Okay, good. The rest I’ll send you on the mailing list.