Lecture from 4 Shevat 5767
This transcription was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
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Table of Contents
- The Rashba’s responsa and the authority of the majority in a community
- The splitting of the concept of the public: corporation versus partnership, and the birth of communities as publics
- Commandments imposed on the public and the responsibility of the individual
- The Rashba: the source of authority lies in the very definition of the community as a public
- Maimonides and the renewal of ordination: public agreement as a mechanism for restoring authority
- Agents of Heaven or our agents: a reversal in the conception of the source of mandate
- The connection between renewing ordination and establishing communities: power that did not disappear and the splitting of publics
- Communal enactments as civic regulation: the Rashba and punishment not according to Torah law
- Terumat HaDeshen, the SeMaG, and the Geonim: communal enactment as severe as a Torah prohibition
- Chronology, interpretation, and legislation: how a law created later comes to be seen as Torah-level
Summary
General overview
The text presents three responsa of the Rashba as three different formulations of the same idea: the authority of the local community to enact binding regulations is discussed as a power parallel to the authority of the whole Jewish people and to supra-communal institutions such as the Great Court and the king; and even when an individual objects, his view is disregarded when the majority agrees. The text argues that the Rashba sums up the halakhic effort up to his time, the 14th century, to establish a source of validity for communal institutions, and that דווקא in the first responsum he offers a conceptual revolution: splitting the concept of the “public” so that each community becomes a “public” with its own internal institutional capacity. The discussion then brings Maimonides’ topic of renewing ordination as a development of the view that legal power does not vanish when its concrete institutions disappear, but returns to the public and can be re-actualized through agreement. Finally, the text cites the Rashba’s responsum on “civic regulation” and two responsa of Terumat HaDeshen, in the name of the SeMaG and the Geonim, which raise the severity of communal enactments to the point of comparing them to a Torah prohibition, and explain how secular-communal authority is charged with binding religious significance.
The Rashba’s responsa and the authority of the majority in a community
The Rashba states that every public and public in its place is like the Geonim and all Israel, who enacted many enactments for all. He states that when the public legislates with the agreement of the people of the region, and whatever the majority agree to and enact and accept upon themselves, we pay no heed to the words of the individual, and the majority of every city in relation to its individuals is like the Great Court in relation to all Israel. The Rashba further states that every public and public consists of individuals who are considered subject to the authority of the many, and they must conduct themselves according to them in all their affairs; and those leaders stand to the people of their city as all Israel stands to the Great Court or to the king, whether they were present at the time or not.
The splitting of the concept of the public: corporation versus partnership, and the birth of communities as publics
The text argues that in his first responsum the Rashba understands that the root of the problem, and therefore the root of the solution, is the splitting of the concept of “public,” so that instead of one public, namely all Israel, many publics come into being, and each community can be considered a public. The text distinguishes between a partnership, in which each partner has a share in the asset and clear personal responsibility, and a corporation, in which ownership and liability are attributed to an abstract legal entity; it presents this as parallel to the halakhic concept of the public as an abstract legal notion, already clear in the Talmudic era. The text presents the institutional implications of turning a community into a public: questions of majority rule, coercion of a minority, representation, attendance at meetings, and a gradual process parallel to well-known stages in political theory, eventually reaching a framework resembling democratic government on the communal plane.
Commandments imposed on the public and the responsibility of the individual
The text presents a distinction found among the early enumerators of the commandments between commandments imposed on the public and commandments imposed on the individual, and gives examples of public commandments such as building the Temple, appointing a king, conquering the Land, and wiping out Amalek. The text raises a principled difficulty in identifying the concrete addressee of public commandments, and in asking against whom complaints are directed when the public does not fulfill its obligation, while also stating that the individual bears responsibility to ensure that the corporate body fulfills its duties. The text explains that the revolution of the 11th century is the transition from a situation in which the only addressee of the corporate concept was all Israel, to a situation in which every community becomes a public in every sense, and from that internal institutions and authorities are derived.
The Rashba: the source of authority lies in the very definition of the community as a public
The text argues that the Rashba’s first responsum differs from the other two in that it does not ground the community’s authority in defined sources such as the Great Court or the king, but sees the very definition of the community as a public as itself the source that necessarily dictates the need for parallel institutions and powers. The text interprets the phrase “like the Geonim and all Israel” as a reference to the Babylonian period, when the Jewish people was still relatively concentrated and still perceived as one public, and concludes that the Rashba is pointing to a conceptual revolution and not a technical solution. The text states that once the community is defined as a public, the religious and secular powers needed to conduct life follow automatically, and all expansions from what the Torah says about all Israel become “simple extensions.”
Maimonides and the renewal of ordination: public agreement as a mechanism for restoring authority
The text quotes Maimonides in the laws of the Sanhedrin on the uninterrupted chain of ordination from Moses our teacher, on the need for there to be at least one ordained judge in the court that grants ordination, and on the possibility that a single ordained sage can seat two others beside him and ordain seventy in order to establish the Great Court. The text quotes Maimonides’ innovation: “It appears to me that if all the sages in the Land of Israel agree to appoint judges and ordain them, then these are ordained and they have authority to judge cases involving fines, and they may ordain others,” and concludes Maimonides’ passage with the explanation that since Israel is scattered and it is impossible for all to agree, the matter requires decision. The text adds from Maimonides’ commentary on the Mishnah the argument that by virtue of the promise, “And I will restore your judges as at first,” there must be a practical possibility of establishing the Great Court, and also his assertion that the Messiah will neither add to nor subtract from the Torah and therefore cannot bypass the mechanisms of ordination.
Agents of Heaven or our agents: a reversal in the conception of the source of mandate
The text presents the classical conception of ordination as one in which the judge is a representative of the Holy One, blessed be He, and the source of his authority is “from above,” through the chain of ordination; against this it describes Maimonides’ innovation as a revolution that places the source of authority in the agreement of the public. The text defines the distinction between subordination and source of authority, and compares this to modern legal institutions that are not subordinate to the individual but derive their authority from the public. The text explains that Maimonides understands that when concrete sovereign institutions disappear, the power does not evaporate but returns to the public as an abstract concept, and from there comes the possibility of appointing anew a concrete institution that will actualize that authority.
The connection between renewing ordination and establishing communities: power that did not disappear and the splitting of publics
The text uses the renewal of ordination as an example of the view that in the absence of a concrete institution, the power remains in abstract existence and can be actualized again, and applies this to the process of establishing communities in the 11th century. The text argues that since there is no king, no Sanhedrin, and no representatives expressing the will of the public, the power returns to the public itself, and by virtue of that it can “delegate” powers to local communities so that each community becomes a “piece of public” bearing a reflection of the Sanhedrin and a reflection of the king. The text defines public as a situation in which all Israel delegates from its power to a certain group to be a public, and compares this to a recursive difficulty of identity criteria that requires a starting point that itself does not stand within the criterion.
Communal enactments as civic regulation: the Rashba and punishment not according to Torah law
The text brings a responsum of the Rashba to a community that appointed “selected officials to eradicate transgressions” and swore to do so, and that established in the regulations of the agreement that they would have authority “to discipline and punish bodily and financially” according to their judgment. The text presents the community’s question whether it is possible to punish on the basis of testimony invalid under Torah law, such as relatives as witnesses or the testimony of a woman and a child speaking innocently, when they believe the matter to be true. The Rashba answers that these things are obvious: they are permitted to do as seems right in their eyes, because disqualifications of testimony were said with regard to a court judging according to Torah law, such as the Sanhedrin and the like; but one who is dealing with civic regulation is not judging according to the laws written in the Torah literally, but according to what must be done as the times require, with governmental authorization. The text interprets this to mean that both kinds of authority, that of the court and that of the king, flow into communal institutions.
Terumat HaDeshen, the SeMaG, and the Geonim: communal enactment as severe as a Torah prohibition
Terumat HaDeshen was asked about a community that enacted a regulation with a fine for charity upon anyone who violated it, and a married woman who had no property besides her husband violated the enactment; the question was whether her husband must pay on her behalf. Terumat HaDeshen rules that since she violated a communal enactment and this is a full transgression, the SeMaG explicitly cites in the name of the Geonim that one who swears not to enter into a communal enactment has made a false oath, like one who swears to nullify a commandment. Terumat HaDeshen cites another responsum and concludes: “we see from here that a communal enactment too is Torah-level,” and compares one who swears not to accept a communal enactment to one who swears not to eat matzah or not to sit in the sukkah. The text presents the Vilna Gaon’s difficulty with the ruling of the Shulchan Arukh: how can a communal enactment be more severe than a rabbinic law, and notes that Terumat HaDeshen himself writes, “even though I have some hesitation about it.”
Chronology, interpretation, and legislation: how a law created later comes to be seen as Torah-level
The text argues that chronology does not determine essence, and that even a halakhah born today can be considered Torah-level if it is the result of interpretation rather than legislation. The text illustrates this with the example of opening bottles on the Sabbath and the claim that it belongs under the category of the forbidden labor of the final hammer blow, and explains that when the claim is interpretive, it is not defined as a new enactment but as uncovering an existing meaning. The text applies this to communal enactments: the mechanisms built to justify communal authority, even if they are creative, are presented as interpretive determinations that lead to the result that one who violates a communal enactment commits a severe transgression, to the point that an oath against it is void. The text concludes with a description of a historical dialectic in which communal authority, created in response to the breakdown of central government, later becomes a source for discussing the authority of a new central government, while emphasizing that the community is a local king within its domain and does not replace all Israel.
Full Transcript
[Rabbi Michael Abraham] I quickly read three passages from the Rashba, from the responsa of the Rashba, and in all three he’s really speaking in different styles. There’s a responsum here on your page, the first responsum: “Every public and public in its place is like the Geonim and all Israel, who enacted a number of enactments for all.” The second responsum: “A communal responsum with the agreement of the people of the region—whatever the majority agree to, enact, and accept upon themselves, we pay no attention to the words of the individual, for the majority of each and every city, in relation to its individuals, is like the Great Court in relation to all Israel.” Earlier it was “like the Geonim and all Israel”; here it’s “like the Great Court.” And in a third responsum the Rashba says: “For every public and public, the individuals are as though placed under the authority of the many, and they must conduct themselves in all their affairs according to them; and those leaders stand to the people of their city as all Israel stands to the Great Court or to the king, whether they were present at the time or not.” “At the time” means whether they were present at the stage when the enactment was made or not.
So really, the last two responsa of the Rashba are responsa that speak about—really summarize—the halakhic effort that had been made up to his time; he’s in the 14th century. The halakhic effort that had been made up to his time to find a source of validity for the authority of communal institutions. We’ve already seen, all in all, several directions, and he sums them up here: the Great Court, the king—in other words, religious authority, secular authority, all these authorities basically pass over to the institutions of the community.
Whereas the first responsum of the Rashba is maybe the most interesting, and I commented on it briefly—the first responsum brought here—because basically the Rashba understands that the root of the problem, and therefore also the root of the solution, has to be the splitting of the concept of the public. Meaning, the concept of public, until the awakening of the communities or the establishment of the communities, was basically one public within the Jewish people. The collective of Israel—that was the public. The concept of public as an abstract legal concept, what today is called a corporation in legal language, is a concept that already existed very clearly in the Talmudic period. In other words, this isn’t an invention of the 11th or 12th century.
There’s a difference—I spoke about it briefly last time—that the concept of public actually has various implications, and it’s distinguished from the concept of partnership. A hundred people can be partners in a certain asset; that means each of them has one percent of the asset. That has all sorts of implications: if they sell the asset, what do they do, how do they divide it, who has veto power over the question whether to sell it or not. If someone wants to dissolve the partnership, who can force whom? Are decisions made by majority rule, or does each person have veto power? In a simple partnership, basically, each one has veto power, unless the veto right works the other way around—that is, there are situations where each one can force a division. But all that belongs to the concepts of partnership. The concepts of partnership are basically just an extension of the simple concept of ownership. A single person can own something; he can also own half an asset while someone else owns the other half, and then they basically become partners. The partnership is the result of a constraint, because both of them own one asset; it isn’t simply divided, and they have to decide what to do with it anyway. But those are simple concepts.
The concept of a corporation is different from partnership in that the owner of the asset—in a case of ownership, if the corporation is the owner—the ownership is vested not in any of the individuals who make up that corporation, but rather the corporation itself is considered a legal entity. It’s not that there are several owners who are partners in an asset. That has all kinds of implications. Today, in corporate law, for example, we talk about the corporate veil. The corporate veil basically means that I can’t go after the owner of the company—except in very extreme cases—but in principle I can’t go after the owner of the company and sue him if the company harmed me or didn’t pay me what it was supposed to pay me; rather, I have to sue the company. Who is the company? We talked about this now, I’m remembering, with Eisenberg, with Eisenberg’s investment—there you really see it very nicely, the bank as a corporation.
So that’s the concept of corporation, and it basically reflects the concept of the public. Except that the concept of corporation as we know it today—a corporation can be anything; any five people can come along and establish a corporation. There’s no limitation that only the state is a corporation. The state is one kind of corporation, right? There are cases of the state versus so-and-so. What is the state? Who is the state? Is it simply the collection of everyone? Legally, no. Legally, the state is a legal body standing on its own. It’s not that the whole collection of citizens stands on one side and some individual stands on the other side; rather, the state is the one suing him, and it is a legal entity in itself. It owes money, it collects money, it does all kinds of things as a legal entity, and basically there’s nobody to grab if the state didn’t fulfill its duty. If the state didn’t fulfill its duty, that means the corporation didn’t fulfill its duty. Now, who do you grab? Where is that corporation? How do you grab it and beat it up so it will fulfill its duty? There’s no way to do that.
That’s one of the problems that of course exists with corporate concepts, and that’s why people try out various formulations of how to pierce the corporate veil. Incorporation is a kind of veil that protects those people who make up the corporation, because basically the blame or the sanctions or the punishments or the responsibility are not imposed on them but on some abstract thing called a corporation. And the question is how to make sure that things still don’t go completely off the rails, that people still give an account if they did things they shouldn’t have done. So there are various intermediate formulations here, but the legal system also twists itself around this quite a bit. I don’t know enough to say more, but I do know there are lots and lots of problems around this issue.
In any case, this concept of corporation is exactly the point. With partners there’s no such problem. Really, if there’s a jointly owned ox that caused damage, there’s no problem. I take these two Jews by the ears, sue them in court, and they’ll have to pay me. Both of them—each half, or together, it doesn’t matter. If one can’t pay, then “if this one cannot pay, payment is collected from the other”—the law of Rabbi Nathan in tort law. If one can’t pay, I’ll take the whole amount from the other. In other words, since they are personally responsible for what their joint asset—not a corporation, their joint asset—did. In a corporation it’s not like that. If I sue the corporation, none of its owners is supposed to stand opposite me in court. In other words, there’s basically nobody standing there. It’s abstract.
[Speaker B] And nevertheless, there is.
[Rabbi Michael Abraham] What are you saying? There’s a lawyer.
[Speaker B] There’s a state—meaning, is a corporation a state?
[Rabbi Michael Abraham] Not necessarily. A state is an example.
[Speaker C] A limited liability company.
[Speaker B] Yes, a company. But there is someone—if the state does something wrong, you sue it.
[Rabbi Michael Abraham] What does that mean, who do you sue? The state? Fine. Sue the state—put it in jail.
[Speaker B] Not necessarily jail. To pay. That’s the maximum.
[Rabbi Michael Abraham] Fine, but nobody pays. What are you going to do? Who are you going to hit? If they don’t have money in the bank? You can’t do that to the state.
[Speaker B] No, you can sue, and there’s a neutral court, and it tells the state: pay him such-and-such.
[Rabbi Michael Abraham] But it’s not the state—but who is it telling? The question remains: who is it telling? The Israeli ambassador in that place? The Israeli ambassador in that place ran off to Honduras. What do you do now? There’s no concrete person. I resigned today; I’m no longer ambassador. What? You can’t identify it with me. I’m not personally responsible. I just happen at the moment to be wearing the hat of ambassador of that state in such-and-such a place. It’s something a bit anonymous. Legally, that’s a problematic thing. In other words, there’s nobody to get hold of.
Now of course the legal system deals with this in various ways, and it does have to impose personal responsibility even though it’s a corporation. So then the question is: what does it mean that it’s a corporation? Then it turns into an ordinary partnership. So there are some intermediate formulations here that try, on the one hand, to preserve this concept of corporation—because without it you can’t manage—and on the other hand not to totally release from responsibility those who made the mess-ups. Fine, it’s a complicated legal problem. But that’s not what we’re dealing with at the moment. What we’re dealing with is the concept of corporation as such.
The concept of corporation existed in Jewish law long ago, long before it was invented in legal systems elsewhere. Except that the only addressee of this concept of corporation—or the only body that fit that description—was the public as a whole, all Israel. That was the corporation. That was the public, and it has obligations. We know from the books of commandments of the earlier enumerators of the commandments, before Maimonides, that they divide the commandments into commandments imposed on the public and commandments imposed on the individual. Commandments imposed on the public are called “sections” by the BaHaG, by the early enumerators of the commandments. So what is a commandment imposed on the public? The public is obligated to build the Temple, or to appoint a king. On whom is that imposed? On me? We didn’t build the Temple—who is the Holy One, blessed be He, going to come with complaints to? Me? What exactly am I supposed to do, go and build the Temple? That’s not practical. Or conquer the Land, same thing. Who is supposed to do it? Can you point to a specific person?
[Speaker C] The Rabbi gave a lecture on the commandment of Hakhel. What? The Rabbi gave a lecture on the commandment of Hakhel, and “the little children—why did they come? To give reward to those who bring them,” meaning there’s an obligation on each person to help.
[Rabbi Michael Abraham] Ah, fine—that’s exactly what I said before about the legal system. In Jewish law too there’s responsibility on the individual to make sure that the corporation fulfills its obligations. The obligations are still on the corporation, but there is responsibility on the individual to fulfill—to make sure of that, or to contribute his part so that the corporation fulfills its obligations. But when is it considered that we’ve neglected a positive commandment? What—I’m considered to have neglected a positive commandment? If the Temple wasn’t built, is there no positive commandment to build the Temple? Am I considered to have neglected a positive commandment? Is there now a neglected positive commandment listed next to my name in the heavenly ledger? I couldn’t build the Temple. I can’t do that by myself, and I’m also not the one obligated to do it. The one obligated is the public. Or conquering the Land, doesn’t matter—various commandments imposed on the public. Wiping out Amalek, all sorts of commandments imposed on the public—these are commandments whose addressee is a bit amorphous. You can’t define it. Who exactly is commanded here, and accordingly, against whom do you direct the complaint? But in all these matters, the one obligated is always the collective of Israel, the entire public.
At a certain stage, here in the 11th century where we are—at the end of the lecture, I mean—a situation arose, and this is what the Rashba identifies in his first responsum, in which the concept of the public, or the corporation itself, undergoes a revolution. From now on, there are many publics. From now on, every ten Jews can already be a public. Not that ten can be partners, while only all Israel is a public—no. Ten Jews living in some village become a public. A public in every sense. And from that, of course, come all the problems: who makes decisions for the public? Who bears responsibility? Can the majority coerce the minority? Is it even decided by majority rule? How are decisions made? Do they all have to gather together, or is it through representatives?
All the things that were born in political theory in Greece—not all, but almost all—basically arise here on a micro level in communal contexts. And we’ll see it—if we just go through the stages, we’ll see that these are really the same stages. It starts first with defining the public; afterward maybe defining whether we follow the majority or not, and there are disputes about that and it’s not simple. After deciding that we do follow the majority, suddenly they say: wait, that’s not realistic. You can’t have the whole community gather for every decision and vote on everything. You can’t hear everyone shouting over each other. And who told you what the decision was? Who will determine it? Who writes the protocol? Right—that’s always the question in things like this. So it’s a problem to make decisions that way. What do you do? Representative government. That’s the next stage. After representative government, problems arise there too. Wait—the majority decides? The minority decides? Does the minority have to be present at the meeting, or can it be done without the minority? So can the majority just suddenly make a decision without informing the others? Really all the stages, until you basically reach some concept parallel to democratic rule, what we call today on the state level. The very same processes happen on the communal level as well.
And I think this responsum of the Rashba is beautiful in that sense, because he says: “Every public and public in its place is like the Geonim and all Israel.” Here he doesn’t bring a source as he does in the other two responsa, where it’s “like the Great Court” or “like the king.” Those are authorities that the Torah defined. The Great Court, the king—those are authorities that the Torah defined. In this responsum, the Rashba says: “like the Geonim and all Israel.” Well, what am I supposed to do with that—that every public is like the Geonim and all Israel? The Rashba is telling us: the very concept of public dictates all the institutions. I don’t need sources. If I define every community as a public, then automatically it must have a king, it must have a court, it must have all the powers that every public has, just as all Israel had them. For all Israel too, all those powers arise from the very fact that it is defined as a public. So if every single community is like—the Geonim here mean the Babylonian period, where, as we already said, everyone was concentrated in one place, and there was still a public in the same sense there always had been. That is, the Jewish people as a whole was more or less the public. There were some in the Land of Israel, but basically it was Babylonia.
So I think that’s the importance of the Rashba’s first responsum: he basically puts his finger on the root of the problem. It’s not a technical problem of where to derive the authority of the community from—from the king, from the court, from whatever. There’s a question here of conceptual revolution. How do we create the concept of public in a way that doesn’t refer only to all Israel but to some group? How can such a thing even exist? Up until that period it’s almost a contradiction in terms. And that’s the point. And once that comes into being, then everything else follows automatically. Then of course there’s a king and a court and everything—everything that exists in a public has to exist here too on the micro level. There has to be secular government, there has to be religious government, life has to be managed. If it’s a public, then everything else is automatically derived. So then the extensions of what is written in the Torah regarding all Israel are simple extensions.
Before we move on, turn the page and we’ll see an interesting implication of this matter. Here these are just headings. I think we’ll deal with this at some point later on, because it’s a very interesting historical issue and a very interesting issue about the relationship between Jewish law and reality—and that is the renewal of ordination. As is well known, in the 16th century a controversy arose around this issue of renewing ordination. This is a parenthesis that I think is connected to what I just said, I’m just giving a brief introduction.
A controversy arose around Maharib Berab, who at that time was considered the leading sage of the generation, the teacher of the Beit Yosef, the author of the Shulchan Arukh, Rabbi Yosef Karo. And he decided in Safed, with the agreement of all the sages of that time—and there was a very central gathering of sages there in relation to the whole diaspora in Safed at that time; there were some of the great sages of the generation there. There was also in Eastern Europe a somewhat competing center—the Rema, basically, and those around him, a little before his time too. And they decided to renew ordination.
Ordination—as we’ve already discussed in the past—Maimonides perhaps writes, let’s see Maimonides and understand for a moment what ordination is, and then continue. “Whether the Great Court, or a smaller Sanhedrin, or a court of three, there must be among them one who is ordained by one who was ordained. And Moses our teacher ordained Joshua by hand; ordination is done by placing the hand upon him, as it says, ‘And he laid his hands upon him and commanded him.’ And similarly the seventy elders were ordained by Moses our teacher, and the Divine Presence rested upon them; and those elders ordained others, and others ordained others, and so the ordained were found, each one from another, back to the court of Joshua and the court of Moses our teacher. And one ordained by the mouth of the Nasi and by the mouth of one of the ordained—even if that ordained one had never been in the Sanhedrin at all…”
So here Maimonides defines the concept of ordination, the ordination of sages. There is the laying on of hands for sacrifices; that’s something else. Here this is ordination of sages—basically, the judges who are formally authorized under Jewish law to judge almost all cases have to be ordained. What does ordained mean? It means receiving authority from the Holy One, blessed be He, through Moses our teacher, Joshua, the elders, the prophets, the whole chain from the beginning of Pirkei Avot. Ordained by one ordained—there’s no ordained person who was born on his own. Every ordained person has to be ordained by someone who himself is ordained. So the chain has to pass continuously from Moses our teacher through Joshua all the way to you, if you are ordained. One-to-one. You can’t invent such a thing in the middle.
Without that there is a very severe problem, and you already see these phenomena in the Talmud itself. Without being ordained, or without having ordained judges, many of the laws can’t be judged at all; according to some opinions maybe even all laws can’t be judged at all. Then a huge question arises: there is no court. That is, at some stage the ordination came to an end, ordination ceased, and then you can’t judge. Once again, some kind of vacuum of chaos is created—there’s no way to run life, especially in a period when there is no secular Jewish government, and the court fills all the functions. The moment there is no court, there is nothing. And therefore this was a serious crisis.
At a certain stage, they explained that the Exilarch, the head of the exile in Babylonia, stands in place of the king, and the Nasi in the Land of Israel—he can continue the ordination, or at least grant permission to ordain. But that too came to an end. In the 10th century, that also ended, and then ordination truly ceased completely. Something of it perhaps still existed in Babylonia, although in Babylonia itself that wasn’t exactly the case anymore—you have to ordain in the Land of Israel, apparently. In any case, that is the concept of ordination.
Maimonides says in the next halakhah, which I cited—this is all from chapter 4 of the laws of the Sanhedrin: “Ordination, which is the appointment of the elders to judgeship, is granted only by three, and one of them must be ordained by others, as we explained.” In other words, every ordained person has to come from an ordained person, while the body that ordains him is itself a court. Only within that court it isn’t necessary that there be three ordained judges; it’s enough that there be one ordained judge and two other judges beside him, even if they’re not ordained—they can ordain another one.
Maimonides in halakhah 11—this is the famous Maimonides—says: “If there was only one ordained person in the Land of Israel…” There is just one ordained person. An ordained person, of course, is also one who can ordain; only an ordained person can ordain. “He seats two beside him”—those two are not ordained, because by himself alone he cannot ordain anyone, so he can’t seat beside him two other ordained judges; he has to seat beside him two ordinary unordained people, and then a court is formed. “And he ordains seventy at once or one after the other, and afterward he and the seventy become the Great Court, and they ordain other courts.” In other words, that’s how you create the Great Court and the whole legal system. The entire legal system basically draws its power from the Great Court, from the Sanhedrin. So in this way that one person can create a Sanhedrin, and from the Sanhedrin you can also create lower-level courts.
And then he comes out with the bombshell. Let’s see. “It appears to me,” says Maimonides, “that if all the sages in the Land of Israel agree to appoint judges and to ordain them, then these are ordained, and they have authority to judge cases involving fines, and they may ordain others. If so, why were the sages distressed about ordination, so that laws of fines would not be abolished from Israel?” And this is all still within a question. “Because Israel is scattered and it is impossible for all to agree; and if there were there an ordained person ordained by another ordained person, he would not require the agreement of all, but could judge cases of fines for all, since he was ordained by a court. And the matter requires decision.”
In other words, Maimonides himself is not entirely certain about this great innovation, this innovation that later had many historical implications. And Maimonides basically says: this is how it seems to me. First of all, this is his own reasoning; he didn’t receive it as a tradition, he didn’t learn it from a verse. This is his own reasoning. “It appears to me.” There are no ordained people at all. Up to now he had spoken about a situation in which there is one ordained person—what does he do? He ordains seventy others, seats two beside him, ordains seventy others, and thus a Sanhedrin is created, and the Sanhedrin creates all the other courts. So if there’s one ordained person, we’re still alive. What happens when there is no one? It’s over.
So Maimonides says: if all the sages of Israel agree—all the sages in the Land of Israel, which is itself an interesting concept—he didn’t say all the sages of Israel, but all the sages in the Land of Israel—if they all agree, they can renew ordination out of nothing. In other words, they can decide about a certain person that he is ordained, and from that moment he becomes ordained, even though this is not a continuation of a chain going back to Moses our teacher. Ordination ceased, and sages in any generation—even today according to Maimonides—can gather, and if they all agree on one person, he is ordained. And then of course he can continue doing what Maimonides said earlier: if there is one ordained person, what do you do?
That is what they tried to do in Safed in the 16th century. They ordained Maharib Berab to be ordained; he ordained five of his students, among them Rabbi Yosef Karo, and they wanted to renew ordination. Now, their goals were partial, and we’ll still discuss this—they didn’t intend that capital cases and everything should return. It was ordination for certain matters that were really rather marginal—atonement, so that it would be possible to administer lashes in order that someone could achieve atonement for his sins, and so on. If there are no ordained courts, you can’t administer lashes; the punishment of lashes can’t be imposed unless there is an ordained court. So there was something fairly minor here, not as it is usually understood today, when today too people try to do various things like this, to one degree or another, in a somewhat ridiculous way. In any case, it all rests on this Maimonides.
The next Maimonides I wrote here: “The Exilarchs in Babylonia stand in place of the king, and they have authority to rule over Israel everywhere and to judge them whether they wish it or not, as it says, ‘The scepter shall not depart…’” In short, this was a continuity that existed in Babylonia.
And in the commentary on the Mishnah as well, on the first chapter of tractate Sanhedrin, Maimonides also returns to this line of reasoning of his, returns there—it was written earlier, of course—and this is the beginning—
[Speaker D] Yes, that’s the beginning.
[Rabbi Michael Abraham] And I think that if there were agreement among all the students and sages here— for some reason the Land of Israel is not mentioned— to appoint a man in the academy, meaning to make someone the head. Once there was no distinction between the head of a yeshiva and a halakhic decisor. The head of the yeshiva was the decisor; in other words, it was the same person. Meaning, they should appoint a head, on condition that this be in the Land of Israel, as we said earlier. Then that person’s academy would stand for him, and he would be ordained, and afterward he would ordain whomever he wished. Now he brings a proof. This does not appear in the Mishneh Torah; here he brings a proof: because if you do not say so, the existence of the Great Court would never be possible. If we do not say that such a thing is possible, then why does Maimonides say it? Why does my reasoning say this? Because if it were not true, what I am saying were not true, then the existence of the Great Court would never be possible. Why? Because each one of them must unquestionably be ordained, and God has already promised regarding their restoration—meaning, the Holy One, blessed be He, promised us that they will return, as it says, “And I will restore your judges as at first.” So how will there be a Great Court? Before the messiah arrives there is supposed to be a court, and there is no court without ordained judges. How will that come into being? After all, it requires someone ordained by someone ordained, all the way back to Moses our rabbi. So how will that arise if there is no way to recreate ordination out of nothing?
And lest you say that the messiah will appoint them even though they are not ordained—this is refuted, because we already explained in the introduction to our book that the messiah will neither add to the Torah nor subtract from it, neither to the Written Torah nor to the Oral Torah. So what does it mean that the messiah will appoint them? Is the messiah himself ordained from Moses our rabbi? There is no such thing. In the days of the messiah, Jewish law will work exactly as it is supposed to work according to the law itself. There will be no miracles in nature and no halakhic miracles. Everything works according to Jewish law. So if there are to be ordained judges, then they must be ordained by someone ordained, all the way back to Moses our rabbi. But that chain has already been broken. What does that mean? “The messiah will ordain them”? Is the messiah ordained from Moses our rabbi? What, there is no such thing. In the days of the messiah, Jewish law will work exactly as it is supposed to work according to the law itself. There will be neither miracles in nature nor halakhic miracles. Everything works according to Jewish law. So if there are to be ordained judges, then? Then they will have to be ordained by someone ordained, all the way back to Moses our rabbi. But there isn’t; it has already been cut off. The messiah cannot suddenly ordain them out of nothing. So what does Maimonides say? He says that we are forced to conclude that there must be some form, some path, some mechanism for renewing ordination out of nothing.
Now it seems to me that this point requires necessity. The doubt that Maimonides raises at the end is only about the question of the mechanism. In other words, the proof that there must be such a mechanism is a proof that seems pretty clear in his eyes. The only question is, of course, what the mechanism is. There is no hint? Okay, there must be some mechanism to restore the… How was such a process not implemented in the period of the Geonim? What? How was such a process not implemented in the period of the Geonim? He explained it. He said: if so, why were the sages distressed over ordination, so that the laws of fines would not be abolished from Israel? That is why they were distressed that this would not happen, but at some point it was cut off. No, no—he says, why were the sages distressed, meaning why didn’t the sages do it? That is the question. So if you look at the answer: because Israel is scattered, and it is impossible for them all to agree. But if there were someone ordained by someone ordained, he would not need their approval. In other words, if there is one already ordained person, no one agrees and it does not matter. He can do whatever he wants. He is ordained; he received the mandate from Moses our rabbi. That is a mandate that comes from above. These are interesting conceptual positions too. The question is whether judicial authority comes from the people, or whether judicial authority comes from the Holy One, blessed be He. Like with priests: are they agents of Heaven or our agents? The same question applies to judges as well. It is not framed that way in the Talmud, but there is a parallel question: are they agents of the Holy One, blessed be He, or are they our agents? Do we appoint them, or does the Holy One, blessed be He, appoint them?
The concept of ordination is a concept that says a judge is a representative of the Holy One, blessed be He, not of us. The Holy One, blessed be He, ordained Moses our rabbi; He gave him the first authority. Moses our rabbi ordained Joshua. With Moses our rabbi, democracy ended. The Holy One, blessed be He, chose him and ordained him. He ordained Joshua, Joshua ordained the elders; it was passed down from above until the last ordained judge. Everything comes from above. Suddenly here Maimonides innovates a complete reversal, the opposite view: the judge is not an agent of the Holy One, blessed be He; he is our agent. And once ordination has disappeared, we ourselves, if we all agree, can appoint an agent. This is a revolutionary conception.
Yes, but it makes sense. It all makes sense. It is not some genetic thing in the blood that has to be there for ordination. Clearly, it has to be someone fit to be ordained. That is obvious. But the question is: what is the source of his authority? The fact that there are people fit to be ordained—in Babylonia there were many fit to be ordained, and they were not ordained. They were not ordained because they were not in the Land of Israel. Fine, but they still were not ordained. The fact that someone is fit is not enough; the mechanisms have to exist. And the mechanisms are someone ordained by someone ordained, from the mouth of the Almighty, meaning the judge is the representative of the Holy One, blessed be He, and not the representative of the public. We have nothing to say about it. Notice, everything comes from above.
We are now talking about the emergence of democracy within Jewish law. And notice how this whole business started. It started from a completely opposite conception: the Holy One, blessed be He, appoints Moses our rabbi; no one chose Moses our rabbi. He is appointed from above. The king—the Holy One, blessed be He, established the house of David, and the prophet; there are no elections. Everything is from above. And one ordained person ordains another, and everything is this kind of oligarchy that decides who joins it and who does not. The people have nothing to say about it. In other words, everything comes from above.
And now suddenly Maimonides comes and says: wait, wait, wait. Now that has stopped. So what now? Now the ball is in our court. We can, if we all agree together, now have a judge who is our representative. If we all agree… not our representative? What do you mean? He is renewing the chain, yes. But still you see that the one who does this, and the source from which its authority derives, is us—our agreement. He renews the chain—how can he do that? How can he do that? What, are we in place of the Holy One, blessed be He? How is that possible? Where does this idea come from? From the moment he is ordained… that is clear. He is no longer subject to us. Of course not. I was not talking about subordination; I am talking about the source of authority. That is something else. Even today’s Supreme Court is not subordinate to me, but it does receive its authority from me. In other words, it is an institution that the public decided to obey and accept its authority. The authority is from the public, even though it is not subordinate to me in some sense. I cannot tell it what to do, but the source of its authority is the public. That is something else.
Now in Maimonides—notice—there is a revolutionary conception here, a 180-degree reversal from the accepted conception of the idea of ordination. Maimonides has a very strong argument. The argument is strong; there has to be a mechanism that renews this ordination out of nothing, otherwise how can the Holy One, blessed be He, promise us “And I will restore your judges as at first”? He rejects the… I do not know if you would call them mystical possibilities. It is not mystical. You could say that Jewish law tells the messiah to appoint the ordained judges, but that is a mystical conception in halakhic terms; in halakhic standards it does not stand. Not in the laws of nature, but in halakhic standards it does not stand. And Maimonides assumes that Jewish law does not change either. There is no such thing. If it requires someone ordained by someone ordained back to Moses our rabbi, then it is always like that, and the messiah cannot suddenly arrive and decide who is ordained and who is not.
So what does he do as an argument? At least one king with Elijah the prophet. What? Throughout the chain. There were kings whom the people made king. There were kings, but were they really kings? The house of David is written in the Torah: “The scepter shall not depart from Judah.” The house of David is written there; that is the decision of the Holy One, blessed be He. But the later kings of the house of David, in Judah, there were kings there not from the house of David. But still, the fact that the people crowned someone anyway—there was… So perhaps among the sons, although even there there are rules about who exactly gets it, but in principle perhaps among the sons, if the people really want so-and-so and not someone else, they can. I do not know; I have not checked that issue. Yes, but still, in the end it comes from a very clearly defined pool. In other words… the brother of Jehoiachin—I do not remember exactly—but there the people crowned him. Fine, but that is still within very narrow degrees of freedom. The involvement of the surrounding empires that appointed—it does not matter right now. But I am saying, in any case you cannot take someone who is not from the house of David. That is dictated from above. “I chose David,” says the Holy One, blessed be He. That is it. Maybe you can play around, if at all—I am not sure—between his sons, maybe choose this one and not that one. And that is all.
And here Maimonides is essentially saying, as a result of some technical consideration like this—he has good proof, but proof is one thing and mechanism is another. And therefore Maimonides says, “and the matter requires decision.” Because having a good proof is nice, but the question still remains whether this is the correct mechanism. True, there must be some way to renew ordination. But what is it? I do not know. Maybe there will be another revelation at Sinai, maybe another giving of the Torah? I have no idea. Maybe after all the messiah can? If he can do many things, he can. Yes, so I am saying, maybe—but I do not know, and apparently it is not certain. He has a strong argument for why there must be a mechanism. After all, in the end he concludes, “and the matter requires decision.” He is not completely sure. I think his doubt is about what the mechanism is. Maybe the mechanism is different. Exactly. In other words, the question is: what is the mechanism? Specifically the agreement of all the sages of the Land of Israel? Maybe most of them? Maybe all the sages of the world? I do not know. There could be all kinds of things, even variations closer to what he suggests.
But notice the foundation of the matter. Rav Kook explains—I think this is really what underlies Maimonides. What? I do not know if Rav Kook wanted to renew the Sanhedrin; I do not know. I have not heard of such a thing. Today there are those who do. Yes, today there are all kinds of clowns. There was Rabbi Maimon around the establishment of the state, and he wanted to do this, and pamphlets and such started up again, but it died down very quickly. It requires agreement from everyone. Yes, it did not succeed. There will be no decision. And that is Maimonides’ point: he gave something that is impossible to attain. As he says, if there is agreement of everyone. In any event, we need to understand well what this mechanism actually means, what Maimonides is basing himself on. Maimonides is basing himself on a conception that is apparently the opposite of what we understand from the sources. In the sources, the conception is that the judge is the representative of the Holy One, blessed be He. He is appointed by the Holy One, blessed be He, through intermediaries, but he is appointed by the Holy One, blessed be He; we have nothing to say about it. Suddenly Maimonides tells us no: the fact that the Holy One, blessed be He, appointed—well, the Holy One, blessed be He, is also our representative. In other words, ultimately—let us put it this way—after we lost public power, or statehood, let us call it, or something like that, there is no Sanhedrin. So what happens then?
This is what Rav Kook explains. There is no Sanhedrin, so what happens then? Then the mandate returns to the public. After all, what is the meaning of the Sanhedrin in this conception of Maimonides that he proposes here? The Sanhedrin is simply the body chosen or appointed on behalf of the public to manage its affairs, at least in the legal sphere. It is a representative of the public. The representation was dispersed. There are no authorized representatives. So what then? The authority did not go up to heaven. The authority remains with the public. Now, if the public decides to renew it, there is no problem, because the authority is there. In other words, the authority exists; what has been nullified here is the focus—who are the representatives responsible for expressing it. But those representatives are my representatives, not the Holy One’s. And this is Maimonides’ great innovation.
And Maimonides claims that once the Sanhedrin was abolished, or the sovereign institutions—the king is gone—that power of kingship and of the Sanhedrin returned to the public. And now these powers did not go back to heaven; they are here all the time. Only at the moment they have no realization in concrete institutions. Maimonides says, fine—but if now we decide anew on such a concrete institution and once again grant it the mandate, we have the ability to do so. Because the Holy One, blessed be He—and this is the basic conception, the punch line—the Holy One, blessed be He, did not appoint the ordained judges. The Holy One, blessed be He, appointed us to appoint ordained judges. He did not place this power upon the Sanhedrin; He placed this power upon us. And He tells us: you can appoint a Sanhedrin. And the power is in our hands. As long as there is a Sanhedrin, there is a Sanhedrin. Once it disappears, the power of the Sanhedrin returns to the public.
But that does not mean we appoint the Sanhedrin. No—the appointment of ordination is done in our name. No, not literally in our name, but the source of the authority is in our name. And this is how Maimonides understands it, and the proof is that after it was annulled, disappeared, we can take it and renew it again. In other words, this power did not vanish from the world. It remained in the hands of the public, and the public is an abstract thing, but the public can now turn it back into something concrete. And then, when it decides to ordain someone and create a Sanhedrin again, it can. Assuming it decides—not a few clowns deciding on their own. And where did Maimonides get that it is all the sages of the Land of Israel? The criterion of the Land of Israel appears explicitly in Jewish law. Ordination is only in the Land of Israel. The question is why all the sages of the Land of Israel. Do we say “most is like all”? There are lengthy discussions about this. In the ordination controversy of the sixteenth century there were long discussions about what agreement is needed. Many sages did not agree, so is a majority enough or not? There were major disputes. The question is how those disputes are to be decided. The disputes over how to renew ordination—does a majority suffice for that, or do you need everyone? After all, the majority could decide that a majority is enough, and therefore the majority would appoint ordained judges, but the minority would say: wait, we say the majority does not decide, so what does it help that you are the majority? There were arguments around exactly these points.
In any case, what do we really see here in Maimonides? That there is such a thing as power given to the public. When the formal institutions that concretize that power or realize it in practice disappear, it does not mean that the power itself no longer exists, that it evaporated. It means that right now it has no concrete realization. In other words, it returned to the hands of the public. So now it exists somehow in the public. If the public reorganizes and once again decides to establish such institutions, it can do so, because the power is in its hands. It did not return to heaven.
So now, in the eleventh century, we suddenly find ourselves in a situation where this is what happens. True, since we have the power of a public, it is not that we are no longer a public—we are a public, we have that power—but it has no concrete realization. We are dispersed; there is no way to bring to expression our being a public, our being some single organ. So what happens? That same public, by virtue of its authority as a public, can decide—like cutting a snake in two and it turns into two snakes—in other words, to turn each and every community into some kind of piece of public, a fragment of public. And from then on there are many fragments of public. And who does this? The overall public of all Israel, which has always been a public. So even if now it has no institutions, that does not matter. It has the power to do everything the institutions did, only this time not through representatives. We went back down the democratic slope; we went back from rule by representatives to assemblies of the public as a whole, because there are no longer representatives, there is no Sanhedrin, there is no king, there are no concrete representatives that express the public’s position, that have the power of the public. So the power returned to the public itself. But if the public itself decides once again to create something like that, it can.
This is exactly what happens in the eleventh century. What happens is that the public decides that local institutions will now have power. Every single community has the power of the public as a reflection of the Sanhedrin, as a reflection of a king, as the Ran writes here. And all these things come by virtue of the conception that Maimonides, it seems to me, expresses here as well: that these powers do not disappear when their concrete manifestation disappears. In other words, the concrete manifestation disappeared; that does not mean there is no king in the Jewish people. There is. There is an abstract king. There is no concrete king, no one who can say, “I am the king and you must obey me.” But this power of kingship still exists, and this has a legal implication, it is not mysticism. The legal implication says that we can now decide on little kings in different cities. In every city there can now be a little king for that city. Who decided this? The public decided it—the sages as expressers of the public’s view, the halakhic decisors. Just as ordination requires the agreement of the sages, not the agreement of each and every individual in the Jewish people. Why? Because the sages are seen as representatives of the public—unelected representatives, to be sure, but representatives. So exactly the same thing happens with the establishment of communities. The public basically retains this power of being a public, even without institutions, and the various places draw from this the possibility of establishing smaller publics, and a king and a court and all the powers that the greater public had. It is like a kind of cell division.
And this is called ordination? No, this is no longer ordination. No, no, this is not ordination. I brought ordination only as an example of this conception that says that even in the absence of the concrete institution, the power still remains in an abstract form, and then it can be produced in other forms because if I have the power, I can use it. I can decide to give it to so-and-so, give it to someone else—I have the power. That too is an innovation. What? That too is an innovation. Exactly. And if we now decide that we are still a public, or that we have some hierarchical structure of publics that draw their power from some more abstract public that in fact is not under one government at all, not in one place—it does not matter—the power, this power of being a public, still exists.
But it too needs a definition. What do you mean, a definition? It has no concrete realization; there is no institution that is the supreme institution expressing the public’s view. We spoke about what a heap is, a mound of stones—what is a heap? Right? So a public also needs to be defined: what is it, from when is it a public? A public is always a public. How many people? All Israel. No, no, this is not a matter of numbers at all. Two people can be a public, and one hundred thousand can be not a public. The decisors write this regarding a public offering. One of the implications. So what is a public then? A public is when the original public, which is all Israel, delegates its power to a certain group to be a public. Then it is a public. In other words, it is like, you know, the criterion for who is Jewish. You always need some starting point that itself does not stand under the criterion. Abraham our forefather was not born to a Jewish mother. Right? But he converted. Which religious court converted him? That is the interesting question. He needed a religious court in order to convert. So every such criterion, which is a recursive criterion, stops somewhere. You always need some starting point that does not itself meet the criterion. It is always like that. The same with the concept of a public. All Israel is a public—that is a given. I have no explanation why or how or what the definition is. It is a public; that is the definition of public. From there on, whatever that public decides to delegate from its authority to other publics, they too are publics, as long as it has decided so. And if the sages of Jewish law decided that there are now smaller publics that receive the power of a king and a court, then there are.
So why can that public not decide regarding fines and lashes? It can do everything. That is what Maimonides says. If you restore the ordained judges—if you decide—there is no problem. But without restoring them? No, that is what it means to restore the ordained judges. The moment you give someone the authority to judge cases of fines, you have ordained him. It is the same thing; it is nothing additional. That is it. If you take someone and say, look, from now on you have authority to judge cases of fines—no problem, it can be done—according to Maimonides, that is what is called being ordained. That is ordination itself. It is not something additional. So you do not need all Israel for this? No, you need the agreement of the sages of Israel, because the public has to agree—that is the whole point—only the public can give it. But there the mechanism of ordination is that from that moment he is no longer subject to that criterion. Of course not, because he received the mandate. And also regarding the transfer of authority, he can transfer this authority to someone else without asking anyone, if it proceeds in a chain. Right, so that is like the ordained judges back then, apparently. That is how it seems.
A very interesting question is what happens if the public now decides: wait, wait, you do not seem acceptable to us; we revoke your ordination. After all, you draw from our power. You cannot. Not certain. I think that according to Maimonides you could, and not only that—you could also, according to one interpretation of Maimonides, have done that even to the ordained judges of old. In other words, if—after all, that is basically what Maimonides is saying. Maimonides is making an interpretive move here even regarding the ordained judges of old. He is not inventing a new concept of ordained judges. His claim, by virtue of this argument about the future—after all there must be ordained judges in the future, there must be there the same concept of ordained judge that existed before—it is not what we thought it was. The concept of ordained judge back then drew its power from the public and not from the Holy One, blessed be He. And therefore we too can continue to renew it in the future. But from when does this already begin? His proof is because of the future. Are you not saying that Maimonides’ innovation is that I, in some miraculous way, renew the chain? On the contrary—what he wanted was to show you why you cannot use miracles. I am offering you an alternative without miracles. After all, that is exactly what he is trying to do here. So what does that mean? It means that what he is proposing is apparently what always was. Otherwise what have we gained? He wants to say that Jewish law continues as normal, without change.
But the ordination of old—if I am ordained, I can transfer ordination to someone else without asking anyone; that is stated explicitly. Right? So if it is subject to the public, the public can prevent you. I am saying, I think that according to Maimonides, if the public had really decided that it did not want that ordained judge, then that ordained judge would lose his ordination. One of the reasons, for example, that you need the permission of the Exilarch in order to ordain—the Exilarch was not always a Torah scholar; he was the king, the secular ruler. Why do you need his permission? Because he is the representative of the public in the secular sense of the word, not in the sense that he checks whether you are wise enough. In other words, what you are saying is that the Exilarch had to approve the process of ordination. Yes, he writes that—Maimonides writes that. Yes, that the Exilarch must approve the process of ordination, just as the nasi in Israel, or a king when there was a king, or something like that—they had to approve the process of ordination. Why? That is exactly the expression of the fact that the people have to agree.
Now, once there is a full Sanhedrin that ordained someone and the people do not agree, the question is who determines things. The Sanhedrin is the representative of the people. The people cannot now come and say… And I think some version of this revolution took place there. What? You are not talking about the public of ignoramuses. What? You are speaking about the sages of Israel. Yes, it does not matter, but they—obviously the representatives are those representatives relevant to that field. In this field of Torah, those relevant to express the public’s view are the sages of the generation, all the sages of the generation. And who are the sages? Whoever learned enough is a sage. This is not an oligarchic class. It is not an oligarchic class that you are born into like priests. It is the view of the sages of Israel. Why did they send the public? Because that is the public. What are the sages of Israel? They do not constitute the public. It does not matter; the sages of Israel express the public’s view on this issue. After all, in establishing the community as well… not all the public agree. It does not matter; it will not help them. That is not a religious determination. No, and it will not help them because that is the public. Not because the public does not matter. Because the public… It is like today. I briefly mentioned that article about the stringency of Rabbi Zeira in one of the previous lessons. He said there that the fact that women keep seven clean days and so on, which is in most cases just custom and not the law itself—he said, what do you mean, this is some custom when the public today does not agree with it, most of the public do not observe it—so he says, secular people who do not observe Torah and commandments. According to that you could erase three-quarters of the Shulchan Arukh, in other words because people do not agree. That is the plain meaning. It is not because you do not need a public. True, there is a rule: a custom must be accepted by the public. The question is who the public is. And that is the famous question of the Hazon Ish, yes: there is a difference between “the world” and “the world.” The “world” is the people sitting in the study hall, not what everyday language calls the world. The enlightened public. Yes, exactly. Aharon Barak’s “reasonable person” is exactly the same thing. Aharon Barak’s reasonable person is Aharon Barak. Yes. I think it is very similar, and there is quite a lot of truth in that claim, by the way; I do not dismiss it. But that is another discussion. There it became very… very Aharon Barak.
Anyway, since we are approaching the end, this formation—I only want to conclude with the significance of the matter. On the one hand, there is here another responsum of the Rashba, the fourth source that appears here. Maybe briefly we will go through it and then I… So why in the sixteenth century did they specifically want to renew ordination? Why were they not satisfied with a local public appointing sages who…? Because you cannot judge cases of fines by virtue of a local public. That has to be by virtue of all Israel. A local public can judge fines—not the fines of the Shulchan Arukh or of Maimonides, but it can decide on fines of its own. And that is what we now see in the Rashba. That is exactly what we are about to read. You asked… and there are different kinds of fines. Yes—Torah fines, half-damages, the general fines of the Torah—only ordained judges can judge those. But if a public decides to impose fines, like in law today for example, there is no problem at all. That is valid from a halakhic point of view. In other words, a public can decide on fines.
You asked: the community agreed to appoint us as chosen officials to eradicate transgressions. “Chosen officials” means representatives; we, the community, were selected to manage the matter. And thus we swore to act, and it is written in the enactments of the agreement that authority would be in our hands, by the authority of the government, to chastise and punish in body and property. There, you see—body and property. There are fines here, not fines of the Shulchan Arukh, but fines they themselves decide upon, according to what seems proper in our eyes. Inform us—now they ask the Rashba to inform them what Jewish law says—if related witnesses testify about Reuven that he violated his oath, and the witnesses are fit to be relied upon, or if a woman and a minor, speaking innocently, testify, do we have authority to chastise Reuven or not? Are we subject to all the rules of Jewish law? Must we disqualify related witnesses, women who are invalid for testimony, a minor? And likewise, if the witnesses, or one of them, are related to Reuven, and we see from circumstances that these witnesses are telling the truth—in other words, the issue is not that there is no truth here, but that the formal disqualification is that they are related—do we have permission to act on their basis even though there is no clear legal testimony there?
Answer: these matters seem simple to me—that you are permitted to act according to what seems proper in your eyes, because those things you mentioned were said only regarding a court that judges according to Torah law, like the Sanhedrin and the like. But one who is responsible for civic regulation does not judge according to the laws written explicitly in the Torah, but rather according to what he needs to do according to the needs of the hour, with permission of the government. In other words, the ruler of course has to approve it. So why in a rabbinical court on matters of divorce… wait, that is a different issue. One second, one second—that is its own discussion.
But what is the Rashba basically saying here? If we recall what we discussed in Hebrew law: there we saw the homilies of the Ran. The Ran basically says there are two parallel judicial systems. There is the system of the court operating according to Torah law, and there is the system of the king. The king acts as he sees fit in order to close breaches and manage affairs, and he is not subject to Torah law. Before the king a person can incriminate himself; in other words, there are all kinds of different rules with the king. A court can strike and punish not according to the strict law—we said that is basically the same thing when there was no king; the authority for governance beyond Torah law passed to the court. We discussed all that there. What we see here is the legal implication of what we said earlier. These two powers, that of the king and that of religious authority, both passed to the institutions of the community. And now when a community comes and asks the Rashba, are we allowed to act not according to Torah law? He says, of course. You have a king. A king can do whatever he wants; what is the problem? He is not bound by the rules of the court. After all, not only the authority of the court passed to you. The authority of the court is accepted—that is “we act as their agents,” we carry out the agency of the earlier judges. He tells them: no, no, you also have the authority of a king, or of a court that punishes beyond the strict law. Everything passed to you, as though you are all Israel in full. You can decide whatever you want. As long as you are not judging Torah law, decide whatever you want. And whatever you want is perfectly fine—testimony of relatives, all of it—provided it is proper and so on; we will still see later how such things are supervised. But first of all, this is the practical expression.
Now I want to conclude with two responsa of Terumat HaDeshen that were also ruled in Jewish law in the Shulchan Arukh. Let us finish the first page there. This is a very interesting point that expresses something else I spoke about in previous times. In the end, what emerges here is that both religious authority and secular authority were transferred here. That is what we have seen now—from the Rashba, and all along the way. The two authorities flowed into each and every community, of course within its own sphere. The seven good men of one community are not kings for another community. They are the kings of that specific community.
Now what happens? Ostensibly these are two different authorities: there is secular authority and religious authority. Now look what happens here. I already said this is a pathology that arose in light of this process. Terumat HaDeshen says as follows: a question. The community enacted a regulation about some matter and established a fine upon it, that anyone who violates it, whether man or woman, will be fined such-and-such for charity. And a woman violated the regulation, and she has a husband and owns nothing apart from her husband—I mentioned this somewhat last time. Is her husband obligated to pay for her or not? So he says here, within the discussion—we will not go into all the details—“and since she violated the regulation of the community, and this is a full-fledged transgression”—to violate a communal regulation is a full-fledged religious transgression—“as is explicitly stated in the SeMaG, Sefer Mitzvot Gadol, that one who swears not to abide by the communal regulations, this is a vain oath, like one who swears to nullify a commandment.”
What is he saying? We have now reached a revolutionary point. We said that both secular and religious powers passed to the community. What happens now? The secular authorities determined that there is some fine—if someone does a certain thing, he has to pay a fine. He violated it. He does not want to pay the fine. So what now? He swore that he would not pay the fine. Does the oath take effect or not? Why not? He swore. Now we have some conflict—fine—but ostensibly the oath should take effect; why does it not? He says it does not take effect. One cannot swear to commit a transgression. What is a transgression? Ostensibly that is something religious. There is secular authority here of the seven good men of the city? No. The Rashba says in the name of the SeMaG—and this is many early authorities, Rabbi Yehuda Gaon, many responsa; I do not know whether this is the same responsum and only there is disagreement over authorship, but it is attributed to many very early authorities—that this became a full-fledged transgression, a Torah-level transgression. Torah-level in the sense that an oath does not take effect against it. In other words, the secular authority has become a religious commandment. And one who does not obey the secular authority has committed a Torah-level transgression. And one who swears concerning this—his oath is void. One cannot swear not to uphold these authorities. This is the completion of the process, basically.
And this is telling us that we have already found an anchor for secular authority, and that anchor is a halakhic anchor. And if that anchor is a halakhic anchor, then basically whatever the secular authority determines is Jewish law. And one who violates it has committed a transgression. And one who swears about it, his oath does not take effect. And he also writes in the next responsum: “and even though I have some hesitation about it, for in the SeMaG, in the laws of a vain oath, he writes in the name of the Geonim”—this is the second responsum of Terumat HaDeshen—“that one who swears not to abide by the regulations of the community is considered a vain oath, just like one who swears not to eat matzah or not to sit in the sukkah.” Now notice the end: “it follows from this that the regulations of the community too are Torah-level.” In other words, this is a Torah prohibition.
Notice—after all the creative interpretation, all the somersaults and acrobatics we did, in the end we conclude: it is a Torah prohibition. It is not an enactment, not rabbinic, not anything. There are halakhic decisors who say that one who swears not to fulfill a rabbinic law—the oath does take effect. And therefore the Vilna Gaon—since the Shulchan Arukh rules this as Jewish law in the last source I brought, the Shulchan Arukh rules this as Jewish law—and on this the Vilna Gaon asks: how can it be that such a thing would be more severe than a rabbinic law, which comes from “you shall not deviate,” which has a clear source in the Torah, and there if you swear, the oath does take effect, because it is not a Torah-level transgression? But what did we see in Terumat HaDeshen in the earlier responsum? Because this is a Torah-level transgression; it is more severe than a rabbinic law. He says that, though he says, I have some hesitation. Fine. But that is the conception that emerges here. What? That this is a Torah-level transgression. And why? After all, this was born in the eleventh, twelfth, thirteenth centuries. How did it become Torah-level?
To this, one more introduction that I mentioned in one of the first lessons: chronology does not determine essence. Even a Jewish law born today can be Torah-level; that does not mean it is an enactment. The only question is whether this law was created through interpretation or through legislation. And we spoke about opening bottles on the Sabbath, where some say it is forbidden because of building. Well, until today no one thought of this at all, and it was certainly obvious to everyone that it was permitted. That does not make it rabbinic. Either he is right or he is not; you can argue. But if he is right, then it is a Torah law. Why? Because he is not claiming, “I now enact that this is forbidden.” He is saying, “this falls under the prohibited labor of the final hammer blow,” which is forbidden by Torah law. This is an interpretive process, not a legislative process. When the process is interpretive, even if the law is created only now, its force is that of a Torah law.
And that is basically what Terumat HaDeshen tells us: this whole mechanism we have now seen—the secular authority and the religious authority—and we found all the anchors for it through the creation of the concept of a sub-public or a partial public, and so on and so forth, and we found a halakhic anchor for it in “property declared ownerless by the court is ownerless,” and in that verse in Ezra that we brought, “whoever does not come to the officials…” and so on—all these things, in the end, are interpretive processes, however creative they may be. And therefore there is here a Torah-level transgression. This is what the Torah told us from time immemorial; it is not an innovation of the twelfth century. In the twelfth century we discovered it; in the twelfth century we needed it, we dug into the passage, and suddenly found that this is what is going on. Until then there was no need, because there were no communities, so there was no discussion. But this is not an enactment born in the twelfth century. Rather, in the twelfth century they discovered that this is what the Torah had said. And now it is Torah law. And one who swears about it—it is worse than one who swears to eat poultry with milk. One who swears to eat poultry with milk—the oath takes effect according to some decisors, but this does not take effect, says Terumat HaDeshen. One who swears not to pay income tax or something like that—so does all secular law today also fall under this framework? That is a major question; we will discuss it at the next stage. Fine, but that depends, according to the law of authorities and powers then. No, that is already something else; here we are moving between different questions.
But this is one of the absurdities I spoke about at the beginning: that in the eleventh and twelfth centuries they made the move from central government to creating communal institutions and found a halakhic anchor for it. Now we have come back here and once again there is a central government. Now people ask: wait, what is its authority? And they say: what do you mean? There is a king, a Sanhedrin, it is written in the Torah—what are you talking about? No, it is the seven good men of the city. Because there is authority for a community, therefore of course this is just a bigger community. That is all. In other words, the process is one-way; we do not go backward. Rather, after you have formed these concepts, that is now also the source today for something state-like. It is an interesting historical dialectic. What? But this community has authority? Yes, yes, it has authority; the authority is derived. Maimonides does not build on it as you said in relation to the process; it has some significance—the seven good men of the city are the king. But it does not matter right now whether you call them king or seven good men of the city. No, but it is not a separate institution. No, it is a local king. He cannot decide to go to war. There are things he cannot do. He cannot build the Temple; the community of Katzrin is not going out to build the Temple. There is no such thing. A local public is not all Israel; they do not replace all Israel. Now the question is what happens here. We will discuss that at the next stage.
I do not see in Maimonides where there is this matter of the public, that all Israel agrees on a position. Precisely not—precisely a partnership and not a corporation. That is how it seems from Maimonides, as the rabbi is saying. Once there is no such thing, there is nothing. There is not something beyond the concrete things. Here, of course, we are not talking about ownership, so it is hard to speak here in terms of partnership.