Lecture from 17 Shevat 5767
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Community as a public entity and not just the Jewish people as a whole
- The Rashba: the validity of representatives’ decisions and their application to future generations
- An oath from Sinai, “souls,” and public corporateness
- The Rivash: minors, those yet to be born, and the concubine at Gibeah
- Custom, non-territorial communal identity, and leaving a community
- The danger of breaking up the Jewish people as a whole and Jewish law as a regulatory framework
- An “important person” as authorization for enactments: the butchers passage in Bava Batra
- A dispute among the medieval authorities (Rishonim): does a community need the consent of an “important person”?
- The Rivash: without an “important person” they are individuals, acting through acquisition
- The implication for the state: are its laws valid without an “important person”?
- Interpretation of enactments by halakhic decisors as a mechanism of coherence
Summary
General Overview
The text explains that the halakhic innovation that developed beginning in the 11th century is the possibility of viewing a community as a subgroup of the Jewish people as a whole that nevertheless has the status of a public legal entity, and not merely as an aggregate of individuals. From that follow the validity of communal enactments, the authority of local leadership, and the ability to obligate future generations as well. It cites the Rashba and the Rivash as central sources for the idea that enactments and acceptances of a public apply to children and those born later, similar to the acceptance of the Torah, the Scroll of Esther and Hanukkah, and even customs. It points to the dangers inherent in fragmentation into multiple local publics and emphasizes that Jewish law serves as a regulating framework to preserve coherence between communities, through supervisory mechanisms such as the need for the consent of an “important person,” and by entrusting interpretation of enactments to sages and halakhic decisors.
Community as a public entity and not just the Jewish people as a whole
The text states that the decisive innovation is that a community can be considered a public in the legal-halakhic sense, and not only the Jewish people as a whole, and from this derive powers of legislation, enforcement, and fines for communal institutions. It describes a gradual consolidation of a communal system of government, from gathering and unanimous decisions, to majority rule, and then to representative government because it is impossible to vote on every matter with all residents. It defines the relationship between a community’s representatives and its residents as parallel to that between the Great Court or the king and the Jewish people as a whole.
The Rashba: the validity of representatives’ decisions and their application to future generations
The text quotes the Rashba, according to whom individuals are subject to the authority of the many and conduct their affairs according to them “whether they are present or not,” and interprets this as a full transition to representative government without requiring the public to be physically present for the decision. It emphasizes the Rashba’s words that “even the children who will be born to them, generation after generation, are obligated,” and presents the reasons and proofs that the Rashba brings from the acceptance of the Torah, the Scroll of Esther and Hanukkah, and ancestral customs that obligate children, including formulations such as “you must not deviate from the custom of your forefathers, may they rest in peace” and “holy Israel adopted it as a prohibition.” It explains that the Rashba uses the Sinai event to express that what obligates is a collective body, and therefore the enactment applies even to those who were not present at the time of acceptance.
An oath from Sinai, “souls,” and public corporateness
The text raises the difficulty of how the oath accepting the Torah can obligate generations that were not present at the event, and rejects simplistic mystical solutions such as the claim that all souls stood there, while proposing that the midrash teaches about the concept of the soul as obligation. It presents a dispute in the conversation about the meaning of the soul as a spiritual substance versus identifying it with a binding norm, and connects this to the question of being “already sworn from Mount Sinai” and the ability to swear concerning commandments. It states that the fundamental answer is that the entity that swore was “the Jewish collective,” which is a public as a legal entity, and just as civil law binds future generations, so too a public binds those who belong to it, including those born later and converts. It brings an example from Tosafot regarding a communal offering, where there is no issue of “its owners have died,” because ownership belongs to the public, which does not die but merely changes its component members, and defines this as parallel to the modern concept of a corporation even though it was not identified by that name.
The Rivash: minors, those yet to be born, and the concubine at Gibeah
The text cites the Rivash, according to whom “the townspeople themselves may stipulate as they wish, and even minors are included in their enactment once they come of age,” because otherwise it would be necessary to renew enactments every day. It adds from the Rivash that “even those born later” are included in the enactment, because a public can make an enactment “for themselves and their descendants,” and brings as an example the oath in the concubine at Gibeah, which prohibited future generations as well until an interpretive exposition was required: “from us and not from our children.” It presents from the Rivash that even a custom established without an oath obligates future generations, and concludes that the power does not derive from the laws of private oaths but from the fact that the accepting body is a public.
Custom, non-territorial communal identity, and leaving a community
The text raises the possibility that a custom obligates future generations only if the body that practiced it is defined as a public, and sets out a practical implication with respect to a father’s private custom as opposed to a communal custom. It describes a difficulty in defining a community when it is not territorial, and raises questions about Ashkenazic and Sephardic customs, the obligation to follow the Rema versus the Shulchan Arukh, and how belonging to a community is defined when the unit is already geographically and ethnically mixed. It mentions the phenomenon of Hasidism as a stage at which “virtual” communities were created that were not dependent on location, and formulates the question of how a child is bound by his father’s customs or can move to other customs. It describes the field of the laws of custom as amorphous and argues that even the rules governing custom are in practice themselves determined by custom, alongside the distinction that in monetary law the custom of the geographic locale is the determining factor.
The danger of breaking up the Jewish people as a whole and Jewish law as a regulatory framework
The text argues that the proliferation of sub-publics creates the danger of national fragmentation and inability to function together, even to the point of marriage problems, and therefore mechanisms of coherence are required. It states that Jewish law serves as a framework that people try not to break out of, but it also grants tools that allow controlled deviation, such as accepting a disqualified judge or the rule that “everything follows the custom of the state” in monetary law, and it even raises doubt as to how far the monetary law section of the Shulchan Arukh is binding when a custom exists. It presents the need for something like a halakhic “international law” when there is conflict between communities with different norms.
An “important person” as authorization for enactments: the butchers passage in Bava Batra
The text presents the butchers passage in Bava Batra, in which a group of slaughterers enact an internal fine against anyone who slaughters on another’s assigned day, and Rava requires payment despite the agreement. It quotes Rav Yeimar bar Shelamya’s question from “and to enforce their fixed terms,” and Rav Pappa’s answer that the matter depends on whether there is an “important person,” in which case “it is not within their power to make such a stipulation.” It explains that most of the medieval authorities (Rishonim) interpret the passage as the source for requiring the authorization of an important person for enactments, and presents this interpretation as taking shape in the period of the medieval authorities, when a need arose to supervise the autonomy of communities.
A dispute among the medieval authorities (Rishonim): does a community need the consent of an “important person”?
The text presents a dispute over whether the requirement of an important person was said only regarding members of a trade or also regarding enactments of the townspeople, and ties this to the question whether the purpose of the authorization is to prevent harm to the public or to impose a general authoritative framework. It rejects as insufficient the claim that this is only because of respect for a Torah scholar, and suggests that the practical motivation is to prevent a situation in which small groups declare themselves a community and enact regulations that break accepted boundaries.
The Rivash: without an “important person” they are individuals, acting through acquisition
The text quotes the Rivash, according to whom the requirement for an important person applies “specifically to members of trades,” because without him “they are not like the townspeople and cannot make stipulations except as individuals and through acquisition,” whereas the townspeople can stipulate without his consent. It interprets this language to mean that the important person does not merely supervise interests but grants a stamp of legitimacy that defines the group as a public, so that without him the arrangement is merely a private contract and not a binding communal enactment. It connects this to the conception that the Torah scholar fulfills a functional role parallel to that of the king, as one who expresses the “one of the people” and constitutes a public, and in this context cites an attribution to Rabbi Soloveitchik, according to which since monarchy ceased in Israel, a Torah scholar has the status of a king for certain matters.
The implication for the state: are its laws valid without an “important person”?
The text notes a planned discussion of the question whether the laws of the state are halakhically binding without the authorization of an “important person,” if the source of a community’s legal validity requires the signature of a Torah scholar. It emphasizes that the important person is defined as a Torah scholar with integrity and value-based halakhic judgment, not as a merely technical professional expert, though he may consult experts as a judge does.
Interpretation of enactments by halakhic decisors as a mechanism of coherence
The text states that another mechanism for preserving unity is entrusting interpretation of enactments to sages and halakhic decisors, so that when there is a dispute over the meaning of an enactment, the decision is not given to the local legislator or an administrative “jurist” but to a halakhic decisor. It presents this as an attempt to bring even administrative enactments under halakhic interpretive rule, in order to prevent fragmentation and loss of control between communities.
Full Transcript
[Rabbi Michael Abraham] Okay, I don’t know how much of this page we’ll manage to get through, because I already want to finish this topic of communal enactments. At this stage we’re already getting a little into technical details, and I didn’t really want to go too deeply into halakhic sources and discuss all the nuances. So I’ll try — I hope I’ll manage to finish this issue today. One point that I actually already mentioned when I opened the topic in the introduction: I said that one of the points that was innovated at the basis of all these halakhic implications of communities, communal enactments, and the communal establishment — what really underlies this whole matter is the innovation that there can be a public that is not the Jewish people as a whole. Meaning, the community, as a certain grouping of people, can also be considered a public and not just a collection of individuals. The concept of a public of course existed from ancient times in the halakhic and Torah outlook, but it was usually attributed to the Jewish people as a whole. The Jewish people as a whole was certainly perceived as a public. The innovation that became focused or consolidated beginning in the 11th century is that we can actually also understand subgroups within the Jewish people as a whole as themselves being a public. That is a very far-reaching conceptual innovation, and from it one can really derive — I’d say — many of the laws that the halakhic decisors discuss. Usually they don’t discuss the question whether this is a public or not a public; that terminology belongs more to our time. Among the later authorities they already write about what the difference is between a public and partners — that it’s not the same thing — definitions that are almost philosophical. Halakhic decisors generally discuss laws; they discuss what the law is here and what the law is there. But when you look behind the discussions, what lies behind them, it seems to me that this is the basic principle that really stood behind all these discussions. One of the implications of this matter — I think I mentioned this at some point — is the force of legislation for future generations. So let’s look at the Rashba’s responsum in the first source on your page. We already saw two or three lines of it, but now let’s continue. “For every public and public, the individuals are as though placed under the authority of the many.” Meaning, the citizens are placed under the authority of the public. Yes, “the individuals” here means the citizens, not the seven elected leaders of the city. “Placed under the authority of the many” means under the authority of the public. “According to them they must conduct themselves in all their affairs, and they relate to the people of their city as all Israel relates to the Great Court or to the king. Whether they are present or not.” What does that mean? Even if the public — here we’re already starting to touch on a stage that I’m going to skip, because it really gets into nuances of halakhic responsa. I said that you can really see here some kind of development of a polis, some governmental system, or a gradual consolidation of a system of government. It starts from a community gathering together into some sort of public, beginning to vote and make decisions — at first unanimously, then it starts becoming majority rule, then they move to representative government because in practice you can’t hold a vote of all the residents of the community on every single matter. Representative government itself raises the question of how the representatives are chosen, whether the representatives themselves make decisions by majority or unanimously. You can really see all these stages, just like in political science books, in microcosm in the formation of the communities. And here there is a hint: “whether they are present or not.” What is this addition by the Rashba? There is some discussion in the responsa literature of the medieval authorities (Rishonim) whether decisions are valid only in the presence of all members of the community. That is still the early stage of the polis, where everyone gathers in the town square — everyone who has voting rights, which of course was not everybody — and they vote on various decisions being made. Here we have already advanced one step further to representative government. So there are the seven good men of the city, a kind of government that is supposed to make the decision for the public. But still a discussion arose whether the public has to be present so they can comment, object, argue, whatever. True, in the end the representatives decide, but still the public is supposed to be present. Here the Rashba cuts through that and says: “whether they are present or not.” We have completely moved to representative government. And with that I’m done with the point about representative government. Let’s continue. “And even children who will be born to them, generation after generation, are obligated.” Meaning that everything they accepted upon themselves and excommunicated themselves under applies also to their descendants, not only to them. Why is that important here? Why does he add it? That wasn’t the issue in the responsum. The issue in the responsum was simply the authority of the community to enact enactments. Why is it important for him to add this point, that it applies also to their descendants? He’ll also bring proofs for it — he expands on it. Look. Yes, exactly: “For such was the acceptance of the Torah, and similarly words of tradition such as the Scroll of Esther and Hanukkah, and even if the fathers practiced a fixed custom as a vow without formal acceptance, the children must follow them. And as they said in the Jerusalem Talmud: You must not deviate from the custom of your forefathers, may they rest in peace. And regarding the sinew’s fat they said: Holy Israel adopted it as a prohibition” — some custom to prohibit even the fat of the sciatic nerve, not only the nerve itself. “And they said: The daughters of Israel were stringent upon themselves,” and so on. “And anyone who breaches these matters is like one who breaches the fence of the Torah, for the fathers are the root of the children.” It’s a very long passage that really has nothing to do with the responsum itself. Why does he find it necessary to deal with this so extensively? It seems to me that here we have one of the clearest expressions I found — in most places it is implicit — but here it is one of the clearest expressions I found that the Rashba is really trying to tell us, in his own language, that a public has been formed here. And where does he bring his proofs from? From the acceptance of the Torah. What happens in the acceptance of the Torah? We discussed that already the medieval authorities (Rishonim) struggle with how it can be that the oath we swore at Mount Sinai to accept the Torah obligates also those who were not there. How can it be that someone who swears today can obligate his son who has not yet been born to keep various things? A person can obligate himself and no more. So how can the oath of accepting the Torah obligate everyone? So clearly the answer one might give to this is — some want to say it’s because all the souls stood there, that aggadic idea that all the souls stood at Mount Sinai, “And Israel encamped there opposite the mountain,” and they all really swore. Fine, but souls don’t obligate anyone; aggadic statements about souls don’t.
[Speaker C] Maybe that changes the way we understand it now. We understand what the concept of the soul is. The soul is my obligation.
[Rabbi Michael Abraham] But how do you…
[Speaker C] It’s the obligation that arises from the psychological set.
[Rabbi Michael Abraham] But you weren’t there at all, so how can you obligate yourself? What does that even mean?
[Speaker C] No, I’m suggesting something broader… I want to say that this aggadah comes to teach us, this midrash comes to teach us, what the concept of the soul is. What is the soul? The soul is my obligation. And therefore, even though I wasn’t born three thousand-something years ago, the obligation… How did I become obligated? Here comes the halakhic definition that the Rashba and others explain. But how is this created… What is the meaning of this halakhic definition? After all, a father doesn’t pass down to his son, and so on and so on, oaths. That’s the concept of the soul.
[Speaker B] You’re just jumping ahead a few minutes to where we’re going to find out what this obligation is, and then he’ll come and say: that’s the soul, that’s the meaning of the word soul for a Jew.
[Rabbi Michael Abraham] Okay, maybe that’s possible, but certainly…
[Speaker C] What is a Jewish soul? A Jewish soul is the obligation to keep Torah and commandments; that’s a Jewish soul.
[Rabbi Michael Abraham] Could it be something else? I don’t know, I don’t know why… “Soul” is a noun, and “obligation” is a norm.
[Speaker C] Why identify that entity called soul… I don’t know, some concept that… It’s a binding norm, but why… Like the Rabbi’s formulation on form and matter and so on. The form of a Jew is his obligation.
[Rabbi Michael Abraham] No, right, but to identify it… The soul is simply some kind of entity. A spiritual substance, yes? Meaning it’s something…
[Speaker C] What is written about the soul… yes, exactly.
[Rabbi Michael Abraham] But I don’t think I would identify it with obligation or with some kind of…
[Speaker C] Because what is written in the Zohar about the soul anyway… I don’t understand it, maybe you do; I don’t understand it, and in any case it seems to me really detached from reality. As opposed to this concept of the soul as obligation.
[Rabbi Michael Abraham] No, it’s not detached from reality, because the soul is precisely what is not in physical reality — not in the body but in the spirit. And by definition, if you’re looking for coordinates and mass, then of course there aren’t any. The Talmud in Berakhot says: just as the Holy One, blessed be He, fills the whole world, so too the soul fills the whole body. But the point is that it has no location. It is not located here. It somehow connects to the body that is here; the soul has no locations, the body has locations.
[Speaker B] And what they said in Nedarim, that an oath doesn’t take effect because one is already sworn and standing from Mount Sinai — is that also not the same concept, “already sworn from Mount Sinai”?
[Rabbi Michael Abraham] That’s exactly what I’m talking about. How can it be that I am already sworn from Mount Sinai? I wasn’t there.
[Speaker B] Yes, but the fathers already obligated themselves and that’s that.
[Rabbi Michael Abraham] But where have we ever heard that my father’s oath obligates me? That’s the question. You assume that I am already sworn from Mount Sinai, therefore if I… if I make a vow regarding a commandment it doesn’t work, or if I swear concerning a commanded matter it doesn’t work — a vow does work.
[Speaker B] “Sworn from Sinai” means that if my father swore and brought me the Torah and I accept it, then I’m sworn by what he was.
[Rabbi Michael Abraham] I can suddenly disagree — where did I swear? When did I swear? I don’t remember swearing to such a thing. Why am I bound by an oath my father swore? And what if I don’t want to observe it? And if I don’t want to observe it, then I’m not sworn?
[Speaker B] No, because you accepted the Torah. No, and what if I don’t accept it?
[Rabbi Michael Abraham] Then I’m not obligated?
[Speaker B] No, what does that mean? Then you’ve already broken the whole framework anyway, so what difference does it make? It won’t help.
[Rabbi Michael Abraham] If you swear, then no, that’s not true — it won’t help in the sense of what the religious court does with you. What do you mean? In terms of what you do, you have free choice. But the question is what the religious court does with you; that’s a halakhic discussion that has to be examined. I think the simple conception is that every person is obligated; it doesn’t depend on whether you accept it upon yourself or not. I think the straightforward conception in the Talmud is that there is a real category of oath here, and then the question arises in full force. The Shulchan Arukh rules this as Jewish law based on a responsum of the Rosh: there is no such thing as the fathers’ oath obligating the children. You cannot swear on behalf of your son; there is no such thing. A person swears only for himself. And then the question arises. He doesn’t explain it — I don’t know, he doesn’t explain it. But it seems to me that when I mentioned this, we discussed it — most of the medieval authorities (Rishonim)…
[Speaker B] If they hadn’t sworn there under the mountain and hadn’t said, “We will do and we will hear,” would the Holy One, blessed be He, have exempted them?
[Rabbi Michael Abraham] “He held the mountain over them like a barrel,” as the Talmud says. The Talmud says: from here there is a great protest against the Torah — meaning you could say you were coerced altogether, even after you swore. Even after you swore, you could say that you were coerced. An oath under coercion is exempt. Only in the days of Mordechai and Esther, when they returned and accepted it upon themselves, from that point onward you are obligated and have no excuses — you can’t say, I didn’t obligate myself, rather I obligated myself under coercion.
[Speaker B] “They fulfilled and accepted” for all future generations.
[Rabbi Michael Abraham] Yes, but that doesn’t solve the problem, it still doesn’t solve the problem. What? And apparently all the souls weren’t there then either? No, no, all the souls weren’t there there either. More than that: why do I even need the coercion claim? Forget coercion — I just didn’t swear at all. My father swore under coercion, or my great-great-great-grandfather. What does that have to do with me? So the straightforward answer to this — and this itself is a dispute among the medieval authorities (Rishonim) — the straightforward answer is that the body that swore there, the entity that swore there, was the Jewish collective, not an individual. When I myself swear, then I can swear only for myself; I cannot swear for my son. But if the body that swore, the legal entity that entered into that covenant with the Holy One, blessed be He, was a public — the Jewish people as a whole — then a public is a legal entity. It has its own existence. And that public contains all the individuals, including those who will join it later. This is obvious. Incidentally, that’s also how we understand things in any secular legal system. Every law passed today in the Knesset also binds future generations. If it hasn’t been changed, then it binds future generations as well. In fact, a constitution is something meant to bind even future generations. Why should a special majority be needed to change it? Why? What makes us superior to them? We determine laws for them; they will bind them even if they don’t want them, but we tied their hands because we decided that a special majority is needed — eighty percent, seventy percent, whatever. That is completely anti-democratic. But it is a conception. There’s room to discuss it, of course, but it’s obvious.
[Speaker B] And there is an option to emigrate and leave the whole thing so that…
[Rabbi Michael Abraham] that the system…
[Speaker B] won’t obligate them on its own authority?
[Rabbi Michael Abraham] Yes, but why emigrate? Suppose everyone disagrees. Then what is emigration? Who remains? In the Torah, even that isn’t possible.
[Speaker B] No, fine, but I’m saying…
[Rabbi Michael Abraham] But there too, I’m saying, you see the conception — admittedly in a less intense form — but you see the conception even without the mysticism and the souls that stood at Mount Sinai. And why? Because even there that is only a mode of expression. I don’t think anyone means to say that there was some lineup of souls standing there in rows opposite Mount Sinai. The point is that what stood there as the body that made the covenant with the Holy One, blessed be He, was the Jewish collective. It was not the collection of individuals standing there before Him. When I say that a person who swears cannot obligate his descendants, that means a private individual who swore some oath — you can swear only for yourself. But if we accept this notion of a collective, which is also a legal entity and can swear and can own things and can act on the legal playing field, then if a collective swears, it obligates the collective. Consequently, anyone who belongs to the collective is bound by that oath, including the children, including those who were born later, including those who converted.
[Speaker B] As long as he wants…
[Rabbi Michael Abraham] No, not as long as he wants — within the general framework.
[Speaker B] To take the example of a Knesset law, if the public decides to change a law…
[Rabbi Michael Abraham] No, that’s something else.
[Speaker B] But the Torah prevents that.
[Rabbi Michael Abraham] No, that’s until…
[Speaker B] the end of all generations, you’re not allowed to…
[Rabbi Michael Abraham] Obviously. I didn’t say there’s a full analogy. Obviously there I said it appears in a much more extreme form. I’m just saying that the fact is that even in secular law, without mysticism and without parades of souls, you can’t say: I’m not bound by this law because I wasn’t present when it was enacted. At most I can change it, but if I haven’t changed it, it binds me. Why? Why is it necessary to change the law? The basic conception exists there too. The basic conception says that whoever belongs to the collective is bound by the obligations of the collective. Now, true, there are many other differences between the systems. I’m only trying to give an example that this conception is not unique — I haven’t checked this in other ancient legal systems — but there is certainly a unique conception here in the sense that they grasp the concept of a corporation. What is now called, in legal language, a corporation is a very ancient concept in Jewish thought. In legal history it entered much later — I think in the 13th century in Britain or something — there is some legal case there that they tie to the beginning of the corporate concept in the legal world. At Bar-Ilan they used to call that case “Barcli” or something like that. But אצלנו — in our tradition — it’s absolutely clear. It was never defined by the word corporation, but the concept of a public is in essence a corporation. I brought, I think we discussed this once — I brought the example where Tosafot says: what happens with an offering whose owners died? An offering whose owners died has various laws — a sin offering, a burnt offering, it grazes until it becomes blemished, all kinds of laws. What happens if it’s a communal offering? Tosafot says that with a communal offering we never arrive at a situation of “its owners died.” All those who were alive at the time the offering was designated can die, and it changes nothing. Why? Because their children, who were not even alive then, and their grandchildren, who were certainly not alive then, are considered the owners of the offering. Why? Because the owner of the offering is the public. It is not the assembly of people who at that point populated the public, who made up the public. So once the offering is communal, the public never dies. The public simply remains the same all the time; only the individuals composing it change, that’s all. Now if that is our legal conception — what is now called a corporation in modern language — then if that is our legal conception, then obviously an oath at Mount Sinai binds future generations as well. Why? Because they are not really future generations at all. If I’m speaking about an oath upon me as a private person, then my son is a future generation. But if I’m speaking about an oath that applies to a collective, the collective is eternal by its very nature. There are no future generations of a collective. A collective is one thing across all time and all space; it is one thing, a wave — as a metaphor for this — like a wave as opposed to a particle. It is a collective phenomenon. And therefore there are no future generations; the collective as a whole is bound at the moment of the oath, and that’s it. The time axis plays no role here. So now the Rashba is doing exactly this whole move without saying the word public and corporation, but apart from that everything is here. In other words, the Rashba is basically saying…
[Speaker C] He does say the word public, literally: “for every public and public” — he literally uses the word.
[Rabbi Michael Abraham] Yes, although I’m not sure he really means the legal sense of the concept of public. Maybe he does, maybe he just means a group of people — I’m not sure. But clearly, in the substance of what he says, that’s what emerges, because that is exactly why he needs Mount Sinai. Because at Mount Sinai we see that laws we accepted upon ourselves then bind future generations. In what case can I obligate someone else with laws? Only if that someone and I belong to the same collective, and the one bound by the laws is the collective, not me. I am bound as part of the collective, so naturally my children are bound as well. The Rashba says — and this is the strong expression I wanted to draw from him — the same thing happens in a community. What does he really want to tell us? That a community is also a public, like the Jewish people as a whole. Consequently it has a king, it has a Great Court, it has authority to enact enactments, to enforce laws, to impose fines — everything. “A religious court may confiscate property” applies to the community — everything. A community can do everything. Everything that on the macro level could be done for the Jewish people as a whole can in micro form be done for a community — of course, for that community itself. They can’t do it for the Jewish people as a whole. The seven good men of that city can do everything that… That is what he says. “And they relate to the people of their city as all Israel relates to the Great Court or to the king.” The relation between the seven good men of the city and the residents of the city is exactly like the relation of the Great Court and the king to the Jewish people as a whole. That is the clearest responsum I found that puts squarely on the table this matter of turning a community into a public. In the next responsum, of the Rivash — the next excerpt I brought — look, here too he says, from the second line, the first line is not important right now: “For the townspeople themselves may stipulate as they wish, and even minors are included in their enactment once they come of age.” Again the same point. “For otherwise, the townspeople who stipulate regarding prices and measures and workers’ wages and impose fixed terms would have to renew their enactment every day because of the minors who become adults.” We talked earlier about Knesset legislation, that you need to repeal a law in order to change it. Why? On the contrary, you would need to renew it every day in order for it to remain valid. Why do you need to change it? No, you don’t need to renew it every day, because the law binds the collective, and that matter stands. “Rather, all the townspeople are included in their enactment, and even those born afterward.” Until now he was talking only about minors. “And even those born afterward, for a public can make an enactment for themselves and their descendants, as we find…” When we’re dealing with a public, an enactment can be for them and their descendants. “As we find in the concubine at Gibeah, since they swore that none of us would give his daughter to Benjamin as a wife, that generation was forbidden, and the generations remained forbidden until they needed to derive: ‘from us and not from our children.’” An interpretive exposition was needed. Without that exposition, future generations too would have been forbidden to marry the tribe of Benjamin. Why? Because a public can enact an enactment also for its children. And he continues further. Then he brings the Talmud in tractate Pesachim, the chapter “A Place Where They Practiced,” that even in a matter they did not accept upon themselves by oath but merely as a custom they accepted upon themselves, that too binds future generations. What is he trying to say here? This is not a category of oath, because there is the prohibition “he shall not profane his word,” so perhaps there the children are bound through some category of the laws of oaths. He says the opposite: in the laws of oaths this doesn’t work at all. In the laws of oaths you cannot bind the children with an oath. But see, by contrast, that in the case of a public, even without an oath we bind the children. Every custom practiced by the fathers binds the children. So obviously a full enactment, or one founded with an excommunication, which is like an oath, certainly binds the children — not because of the oath involved, but because the entity that swore here is a collective entity and not a private one. “For so is the law regarding every acceptance of the many: it applies to them and their descendants, as we find in the acceptance of the Torah” — again he repeats the Rashba’s line of argument. Yes? “As we find in the acceptance of the Torah, and similarly with the Scroll of Esther or with fasts” — really even the Rashba’s very same examples. In other words, he really repeats the whole line of argument of the Rashba. Incidentally, in passing, maybe one can infer from here an interesting conclusion in its own right: that a custom can bind children or future generations only if the body that practiced this custom is defined as a public. Otherwise, everyone can establish personal practices for himself, but he cannot establish practices for his children. And that has a very major practical implication. For example, what about my father’s custom? Does it bind me? According to this, maybe not — unless it was defined as the custom of a public. Then I am obligated not because I am his son, but because I belong to the community of Hungarian Jews. Fine, whatever, that…
[Speaker C] But…
[Rabbi Michael Abraham] I mean a case where my father simply had some private custom of his own, or not even his alone — another fifteen people also practiced that way — but there was no public that decided to practice in that way.
[Speaker B] But the moment you, as a community, move to another city, does its force lapse?
[Rabbi Michael Abraham] That’s a big question. Now the question of how one leaves communities is also not simple in the responsa literature. How do you leave communities? Can you leave retroactively? When? We’ll touch on that a bit later — not really in detail — but definitely yes. For example, the community of Ashkenazim and Sephardim. Today we have the Shulchan Arukh: generally Sephardim follow the Shulchan Arukh and Ashkenazim follow the Rema. Why? Do I owe them something? So what if my parents were born — not me — my parents were born in Europe; so what? Because of that I have to rule like the Rema? To me the Shulchan Arukh seems more persuasive. What? Incidentally, if it really seems that way to me and that’s how it comes out from my analysis of the Talmudic passage, then fine, I’ll follow the Shulchan Arukh. But in a place where I have no independent position, or I follow custom and so on, then I need to follow the custom of the Rema. Why? Because there is some kind of custom of my forefathers here. What does “the custom of my forefathers” mean? Because my specific father followed the Rema, so I follow the Rema? I want to follow the Shulchan Arukh — so what? Clearly there is some conception here that there is a community. In other words, Ashkenazic Jewry, and Sephardic Jewry too, are perceived as a community in some sense, meaning as a public. And this is even much more far-reaching than what we saw before, because notice: this is not the Jewish people as a whole, because from the Jewish people as a whole you can’t leave, no matter where you are or when. The Jewish people as a whole is the ultimate public, meaning the public that cannot be left and is fully defined. One can join it through defined procedures. A community is perhaps also some kind — after the interpretive revolution we’re following here — perhaps a community too is some kind of public in micro form. It is defined in terms of place: people are there, and it is completely clear who is in and who is out. Now what is this community of Ashkenazic descendants? The community of those whose father or grandfather or great-grandfather sat in Europe at some point? Why is that defined as a public? What defines that unit as one unit? It has to be one unit, otherwise exactly what we see in these two responsa applies: if this is not one unit, then there is no reason in the world why future generations should be bound by what I practiced or swore or legislated. What does that have to do with them? Only if this is the legislation of some community, by virtue of being a public. So to say that this is still some sort of public when it is already territorially mixed, mixed also in terms of marriage, mixed in every possible way — how can one continue to relate to such a thing as a community? That’s a big question. I don’t have an answer. I don’t know. But the fact is that the custom today works that way. I don’t know.
[Speaker B] Right, today it isn’t defined territorially.
[Rabbi Michael Abraham] So it once was defined that way — so what? But today it isn’t. So someone who was in Rakhmastrivka — that’s it? From then onward all the customs of Rakhmastrivka bind him forever? Why not? Why yes? What sanctity does that village have?
[Speaker B] Not sanctity, but when is he released from it?
[Rabbi Michael Abraham] When he moves to another place? After all, there are the stringencies of the place he went to and the stringencies of the place he came from, right? The Talmud itself discusses what happens to someone who moves from one place to another. And in the straightforward sense in the Talmud, customs are local customs.
[Speaker B] Those are the simpler customs in the Talmud.
[Rabbi Michael Abraham] If he’s a wanderer, then there’s nothing.
[Speaker B] Yes, the custom follows wherever he arrives.
[Speaker C] So what was the halakhic explanation in that period when Hasidism opened up and people left the communities but remained…
[Speaker B] geographically in the city and moved to Hasidic communities with all sorts of different customs?
[Rabbi Michael Abraham] That’s a very big innovation, and it’s part of the same innovation we’re talking about now. It’s a non-territorial community. That’s where virtual reality began. We can now define ourselves as a community even though we are not defined territorially, not even ethnically, meaning not in any sense whatsoever. We’re nothing. I live alone in a city, but I’m a Chabad Hasid. So I belong to the Chabad community, even though the city’s custom — there is no Chabad custom here at all. This whole city doesn’t know what Chabad is.
[Speaker B] And here it’s less problematic because you want to be obligated.
[Rabbi Michael Abraham] If you want to be obligated, fine, but who says you are obligated? And what about your son? What about your son? Is he obligated or not?
[Speaker C] What if suddenly he keeps Gur customs?
[Speaker B] How does that work?
[Rabbi Michael Abraham] In the straightforward practice, the custom is that yes — but I don’t know, that’s just the custom. Not only Chabad, in general. In the straightforward sense it seems that if my child is Ashkenazic, then he’ll have to continue acting like an Ashkenazi. Why? Suppose he wants a conversion out of stringency and to become Moroccan. What’s the problem? Why is he bound to this? That’s a question that has no good answer. I don’t know.
[Speaker C] Before Elul he wants lots of Selichot.
[Rabbi Michael Abraham] Yes, liturgical rites, those things — that too…
[Speaker C] Before Elul, lots of Selichot.
[Rabbi Michael Abraham] So what is the law when people get married? That really is a big question. It already starts with the halakhic decisors themselves. Today the practice is always to go after the father, but from the standpoint of Jewish law that is not clear at all. There are halakhic sources both ways. Fine, but that too is a kind of custom, and it can be discussed. All these things are problematic. These are all kinds of issues. Once I wrote a paper on custom in Rabbi Amiel, so I entered a bit into the world of customs. At the university someone gave me some assignment to do. So I saw there that it is a collection of these sorts of determinations, all of which—not only with him, but in general, not because it was him, but in general—the whole engagement with customs is itself entirely customary. Meaning, I would have expected the laws of custom to be part of Jewish law. Jewish law should say what to do when such-and-such a custom develops, whom it obligates, which custom is binding, which custom is not binding—but even that is not really Jewish law. In other words, custom also determines what to do with customs. So it is always custom piled on custom. It is something that is not really clear; the methodology of the discussion is unclear. It is such an amorphous field that it—
[Speaker B] Has no external anchor.
[Rabbi Michael Abraham] No, none at all. It is simply unbelievable. This field is also so uncharacteristic of Jewish law. Overall, Jewish law usually works in an orderly way.
[Speaker C] It is called “in a place where the practice is,” isn’t it?
[Rabbi Michael Abraham] The whole chapter that deals with customs. But Jewish law says to act this way. “In a place where the practice is” is called “in a place where the practice is.” The first topic deals a bit with custom. That is the topic of the people of Beishan, in Pesachim 50.
[Speaker B] But that is what we are saying. The moment “the place where the practice is” is territorial and communal, then the public accepted it, and then it is no longer a question.
[Rabbi Michael Abraham] There it is, simply—
[Speaker C] It becomes—
[Speaker B] That the custom is the custom of the place.
[Speaker C] There is a chapter here in Bava Metzia, “One who hires workers,” “one who accepts a field from another,” “in a place where the practice is to plow.” Here these are monetary customs.
[Rabbi Michael Abraham] Monetary customs—it is clear that the binding custom is the custom of the place, geographically.
[Speaker C] That is what is accepted.
[Rabbi Michael Abraham] That is what is accepted, for functional purposes. When building in a city, no one is going to tell you, listen, you need to distance this many cubits because the Mechaber rules this way and the Rema rules that way. Why? They follow what is done in that city. When we are dealing with neighbor relations or relations between people, you cannot say: I follow the custom of the Rema, therefore I will open a window facing you. And I am like the Mechaber—what do you mean, you are forbidden to open a window facing me. There is no such thing. That is a question of the custom of the place in monetary law.
[Speaker B] Even more than that—“the custom of Israel is law.”
[Rabbi Michael Abraham] The custom of Israel, yes, but it is not only place. Any Jewish custom is ostensibly law. The question is: which custom is the binding one? A custom by place, a custom by origin, a custom by what? It is unclear. That too is custom. In other words, customs developed regarding which customs are binding and which are not. All right, so really just parenthetically here—I am afraid once again I will not have enough time—regarding “already sworn from Mount Sinai,” what we discussed in the Talmud / Talmudic text, just a side comment so it is clear. Most of the medieval authorities (Rishonim) do not interpret “already sworn from Mount Sinai” in the Talmud / Talmudic text as an actual oath in the formal sense. And then the problem does not really arise as sharply, because this very principle—that a public oath binds its descendants—is not agreed upon. Not all halakhic decisors agree with it; on the contrary, even the Shulchan Arukh itself somewhat seems not to accept it. But the whole question from the start was based on the fact that the Talmud / Talmudic text says “already sworn from Mount Sinai,” so how does that bind the children? If you take it as a metaphor, not as an oath in the full halakhic sense, then the question is not so difficult. Fine. That is regarding the formation of a public and the obligation of the children as an indication that what is being discussed here is a public—that the topic here really is the public.
Now, a situation like this that develops, where you have a collection of such sub-publics, is of course very dangerous from the opposite side. When I introduced these topics of communities, of communal enactments, I said that one must be concerned with two parameters. One parameter is governance and internal enforcement—that the institutions of the community have authority to manage life. Where do they get authority from? We dealt with that until now. But there is also the opposite side, because then what happens is that you create a collection of monads, isolated bodies, each one operating differently, and in practice we have completely dismantled the Jewish people. Where is the original public from which we came, the collective Jewish people? How do you preserve some kind of coherence between all these communities and supervise things so that developments do not arise that at some point will make it impossible to function together at all? Even to marry—it becomes impossible. At some point the splits can become such that they completely tear apart the national fabric. So here, it seems to me, this is where Jewish law enters the discussion. That is what I already said then. Here Jewish law enters the discussion. Jewish law is a kind of framework that people try very hard not to breach through communal enactments and communal laws.
Why do I say “try very hard”? Because Jewish law itself gives many possibilities for breaching it. For example, if a public accepts upon itself a disqualified judge, then he is allowed to judge for them. “I accepted him upon myself”—that is a Mishnah in Sanhedrin, Talmud / Talmudic text in Sanhedrin: a disqualified witness, a disqualified judge—it is permitted to accept him upon ourselves. If we legislate monetary laws that are not according to the Shulchan Arukh, everything goes according to the practice of the state; I mentioned earlier the first Mishnah in Bava Batra: everything follows the practice of the state. So in monetary law, on the legal plane, there is definitely legitimacy for every place or every community to set for itself certain norms, and they do not have to adhere exactly to the clauses of the Shulchan Arukh. A big question is whether there is anything in Choshen Mishpat of the Shulchan Arukh that one does have to adhere to; that is not clear at all. In other words, to what extent the Shulchan Arukh is really the Shulchan Arukh—that itself is a different topic for discussion; maybe we will deal with it at some point too.
[Speaker B] So what happens when there is a conflict between two communities?
[Rabbi Michael Abraham] That—then you get to—I think I mentioned this at some point—you get to the issue of international law, what today would be called private international law. Public international law, I think that is what it is called, is conflicts between peoples, states. Private international law is when two citizens from two different places come, make some contract between them, let us say, and now there is a dispute, because according to the law there the contract means one thing, and according to the law here it means something else. So in Jewish law too there are all sorts of such quasi-international rules, also between Jews and gentiles; I mentioned that in that context. What happens if an ox belonging to a Jew gores the ox of a gentile—do we judge according to their law, do we judge according to our law? There is a discussion there about this issue. Between communities, of course, on the one hand the question may be easier, on the other hand sharper, because it is within the Jewish people and there is no coherence. With gentiles, often from the outset you cannot impose anything anyway—even if you decide what to do with him, who says you can decide at all? But here, even if you can decide, the question really is what you decide. So here these mechanisms of coherence come in, mechanisms meant to regulate the autonomy of the community in such a way that it does not become completely isolated and completely detached from the other communities.
There are two main mechanisms for this. One mechanism is that communal enactments have to receive the approval of an important person. Now, there is a source for this in the Talmud / Talmudic text, the Talmud / Talmudic text brought here in Bava Batra. There is some dispute among the medieval authorities (Rishonim); it is not entirely clear that the Talmud / Talmudic text means this at all, but most of the medieval authorities (Rishonim) interpret it this way. Notice we are talking about medieval authorities (Rishonim). That means when the medieval authorities (Rishonim) interpret the Talmud / Talmudic text this way, they are already living in a period when they need it. The period of the medieval authorities (Rishonim) is already after the eleventh century. So they already need a source that will help them require all communities not to make enactments without the approval of an important person. They need it. So I think the more natural tendency as well is that the medieval authorities (Rishonim) would interpret the Talmud / Talmudic text that way. I never checked diachronically the interpretation of this Talmud / Talmudic text to see whether indeed before the period of communities there was one interpretation, and suddenly in the period of the medieval authorities (Rishonim) a tendency begins in a different direction. I would bet yes, but I do not know—I did not check. Just a shot in the dark.
In any event, most of the medieval authorities (Rishonim), bottom line, interpret the Talmud / Talmudic text this way. The Talmud / Talmudic text says: those butchers—most of the medieval authorities (Rishonim) do not read “those two butchers,” because that very wording of “two” shows that this is not the correct interpretation; most of the medieval authorities (Rishonim) do not have that reading. It should read: those butchers. “Butchers” here means slaughterers. Those slaughterers who made an arrangement among themselves—they made some agreement among all of them, the whole guild of slaughterers, not two slaughterers. We are talking about the guild of slaughterers—that whoever slaughters on his fellow’s day, whoever slaughters on the day when it is the turn of his fellow to slaughter—there was a rotation, each had his own day to slaughter—they will tear his hide. They will tear the hide, the hide of the animal, which he would receive and which had monetary value; they will tear his hide as a fine for encroaching on his fellow’s day and not leaving that animal for his fellow to slaughter. One of them went and slaughtered on the other’s day. They tore his hide—they tore the hide of the animal he slaughtered, they damaged him. They came before Rava. Rava obligated them to pay, even though they had stipulated in advance that whoever slaughtered on someone else’s day would have the animal’s hide torn.
Rav Yemar bar Shelamya challenged Rava: “And may they not enforce their regulations?” Remember the baraita we brought? The baraita is here a page earlier, that the townspeople and members of a given profession are permitted to enforce their regulations. In other words, guilds can institute internal enactments for members of that trade. Fine. So they ask him: what do you mean, why are you obligating him to pay? The guild of slaughterers enacted this enactment, so what is the problem? Rava gave them no answer. Rav Pappa said: he did well not to answer them anything. Why? That applies only where there is no important person. But where there is an important person, they are not entitled to make stipulations. In other words, in a place where there is an important person, no guild can make conditions. Why? Because they need his agreement; he will determine for them what to do, or at least approve it. It does not say whether he determines or approves—that is a dispute among the medieval authorities (Rishonim)—but certainly his sign-off is required. And there, Rava was present in that place, and they had made decisions that apparently had not passed his approval. He did not recognize them; therefore he obligated them to pay as damagers.
So now the medieval authorities (Rishonim) already begin to discuss: in light of this Talmud / Talmudic text, we see that a guild enactment requires the approval of an important person. The question is why. Some of the medieval authorities (Rishonim) explain that such an enactment needs the approval of an important person because the code of ethics of that guild could harm the public. Maybe you know examples of such things?
[Speaker C] I do not know an example of anything else.
[Rabbi Michael Abraham] So since it can harm the public, there must be a representative on behalf of the public, a Torah scholar. The “important person” is generally a Torah scholar, although the medieval authorities (Rishonim) say that it could be someone appointed, so it need not specifically be the outstanding Torah scholar in that place. But usually, if no one specific was appointed, then it is the leading figure of that place, the greatest of the Torah scholars there, who must approve every such enactment. Why? Because it can harm the public. If that is the case, then it speaks only about enactments of guilds. In other words… But the guild is not the public. What? The guild—well, the guild too is apparently viewed as a kind of public, and that may start connecting a bit to the virtual public we talked about earlier. There are interesting questions here: to what extent it resembles a public and to what extent not, the guild as opposed to the public. One of those questions is this one, because the medieval authorities (Rishonim) here ask what happens with enactments that the whole city enacts—not some specific guild. Does that also need the consent of an important person or not? Here there is a dispute among the medieval authorities (Rishonim). If we understand that the whole problem is the damage that may be caused to the public, then some of the medieval authorities (Rishonim) indeed say that if so, the public itself certainly does not need the consent of an important person. The public itself obviously looks after itself.
[Speaker C] If there is a guild and he is in the public, then he is also part of the public.
[Rabbi Michael Abraham] Fine. Why is that? That is a good reason for him to supervise it.
[Speaker C] For him to supervise it, so there will not be—
[Speaker B] No, but not necessarily would he agree. He could be in the minority opinion. It is not… you do not need to ask him.
[Rabbi Michael Abraham] If you are the public… No, but the assumption we rely on is that he will act for the benefit of the public and not for himself, otherwise the whole thing does not even get off the ground. So in fact, those medieval authorities (Rishonim) who say it is because of the concern that the public may be harmed—clearly there is a particular guild here, there is the public interest, and one must ensure it is not harmed. But if the public itself enacts an enactment, there they would not need the approval of an important person. Why? Where would that even come from? There is no source for it at all. Why should that be necessary?
But some of the medieval authorities (Rishonim) say no: the consent of an important person is needed even for enactments of the community itself. And then it is clear that the reason is not the concern lest the public be harmed because of conspiracies of those workers or tradesmen. So there has to be some other reason why the consent of that important person is needed. Here there are several reasons among the medieval authorities (Rishonim). Again, many of these things seem a bit ad hoc. For example, some say it is because of the honor of that important person—that one should not do things without his permission. Fine, with all due respect to the honor of that important person, from there to saying that if they did not consult him the enactment is void? Tell them: you know what, you did not consult a Torah scholar, so you committed an offense regarding the honor of Torah scholars; “You shall fear the Lord your God”—to include Torah scholars; you nullified the positive commandment of reverence for Torah scholars. But how did it come out that the enactment they enacted is void? What, because of the honor of a Torah scholar—if I do not honor a Torah scholar, then a commercial contract I make becomes invalid? Where have we ever heard such a thing? Yet in the Talmud / Talmudic text it says that Rava did not recognize this agreement, meaning he required them to pay. It is not just that he said to them, shame on you, you were not okay because you did not obtain the approval of an important person. He says that because there was no approval of an important person, the contract is void. Why is the contract void? Where does such a thing come from?
[Speaker B] In that respect it is also similar, say, to regulations from the Ministry of Health. Such a regulation has to spend two years in the Ministry of Justice until they approve it. Okay, so for all those two years you cannot operate according to the regulation, even though in history—exactly, we just had this now—there has never been a case where in the end they did not approve it. But they have to examine every word there and check all sorts of things, and if not—
[Rabbi Michael Abraham] If there is not such an instance, then clearly the regulations will be run differently, and then there will be regulations that need to be canceled. Clearly there are no such regulations because there is the—yes, clearly. It seems to me every legal system has to provide for—
[Speaker B] If there is no approval from them… yes, right.
[Rabbi Michael Abraham] So here it actually works very similarly, and the question really is what the source is for the matter. The motivation for this is very clear. It is what I said earlier: the desire to create some supervision over these laws, so that every three wagon drivers who organize into a community can set rules for themselves and decide that one of the community rules is to desecrate the Sabbath publicly. There are no boundaries. How can you control such a thing at all? And they are not under anyone’s authority. They are independent wagon drivers. They have no one over them; it is an independent community. There is no rabbi of the state there or anything like that—at least the kingdom does not allow it, or something. There is no way to deal with them; they are not under anyone’s authority. Therefore it must be brought into Jewish law. Jewish law determines that any such group that creates enactments for itself needs the consent of an important person.
One of the interesting discussions, by the way, in the context of the state, which I intend to get to next time, is the question whether the laws of the state are valid halakhically without the approval of an important person—because “important person” means a Torah scholar. If the basis of their validity is this—communal enactments, basically, of some large community or something—then there are rules for how communal enactments are made. So some want to argue that because there is no approval of an important person, the laws of the state are not binding from a halakhic standpoint. Not binding.
[Speaker B] Could an important person also be an expert in—
[Rabbi Michael Abraham] What? An important person… no, no. “Important person” means a Torah scholar. We are talking about someone with integrity, not a legal expert in their terms here.
[Speaker B] In that field, in a specific area.
[Rabbi Michael Abraham] No, I do not think expert—certainly not an expert in butchery or blacksmithing.
[Speaker B] A person—
[Rabbi Michael Abraham] Who will examine it from a halakhic perspective and from a value perspective. In other words, clearly there were enactments that were disqualified; there are examples of this in responsa. Enactments were disqualified because they were unfair.
[Speaker C] Not only against Jewish law—they were unfair. The important person needs to have knowledge in order to prevent a situation where there may be loss to the townspeople.
[Rabbi Michael Abraham] Yes. Fine, so he will consult. Like any Torah scholar—if he needs expertise in the field he is dealing with, he has to consult. But the authority ultimately rests with him, like a judge today. What, a judge today rules in all kinds of fields he does not understand, but he is the deciding authority; he has to bring experts when he needs professional knowledge.
[Speaker B] And this is also in the sense of a sub-, a sub-public. Meaning there is a public, and a guild is a sub-public, but what—there is no definition for that at all, that is—
[Rabbi Michael Abraham] Meaning, what is the relation between the publics?
[Speaker B] It could be a synagogue, it could be a street, it could be—
[Rabbi Michael Abraham] Right. That is exactly the problem that arises here. So how do you define this amorphous thing? What, can three people gather and declare themselves a public, and therefore they have different customs and no longer need to follow the custom of the place? If two—yes, never mind. Even one. Why? One person with two synagogues—such a person too can be a public. Yes. So no, that really is a difficult question.
[Speaker B] But here—
[Rabbi Michael Abraham] The assumption of the halakhic decisors says exactly that they do not read it that way, in order to interpret it as a public. Because if they read “two,” that would indicate it is a contract between two people. It is not a public enactment. It is a group, I do not know from what number—
[Speaker B] It could be that there is a minimum number.
[Rabbi Michael Abraham] No, there is no minimum number. Clearly, when we are dealing with a group that can be treated as a public—
[Speaker C] And that is the sorites paradox.
[Rabbi Michael Abraham] But there is no numerical answer to that.
[Speaker B] No, but beyond that, suppose we are talking about the butchers, about slaughterers. There could be three groups of slaughterers, each of which says: this one follows the Chabad custom, this one follows this custom, that custom—
[Rabbi Michael Abraham] Exactly: this one follows the Chabad custom, this one this custom, that custom.
[Speaker C] And they do not eat from one another’s slaughtering.
[Rabbi Michael Abraham] That can create a huge number of problems. Some of these very problems are what caused the desire to impose the supervision of an important person. Why? Because that important person—I do not know whether he will always be able to decide according to clear halakhic principles. But his common sense will tell him when this is a community and when it is not a community. Not every three people can just do whatever they want here. At least there will be some control by a person one can trust. Precisely in places where there are no definitions, authority must be established. Right? Where there are clear definitions, authority is less important, because it is obvious who is right and who is not, everything is fully defined. But in those gray areas where there is no clear definition and everyone can basically argue in either direction, you need some authority to determine yes or no, even without criteria—but there has to be someone to determine the matter, otherwise none of this will go anywhere.
An interesting expression that I do not want to miss appears in the Rivash. Look at the next passage after the Talmud / Talmudic text in Bava Batra. Because the question we are dealing with right now is: what is the source for requiring the enactment to have the approval of an important person not in the case of guild enactments—that is in the Talmud / Talmudic text—but in the enactments of the public, of the community itself. And in Jewish law that is indeed how it is ruled; that is how it is ruled in the Shulchan Arukh, that the consent of an important person is required. That is how he ruled in this dispute among the medieval authorities (Rishonim).
So there is a very interesting expression in a responsum of the Rivash on this matter: “And what they said in the Talmud / Talmudic text regarding those butchers, that this applies only where there is no important person—but where there is an important person, they are not entitled to make stipulations”—they cannot make conditions. Meaning, unless he agrees with them. If he agrees with them, then they can make stipulations. “And it appears that this applies specifically to craftsmen, because whenever there is an important person and they did not act with his consent, they are not like the townspeople and they can only make stipulations like individuals and by formal acquisition. But the townspeople may always make stipulations and do not require the consent of an important person in the city.” And that also appears to be the view of the Rema.
So first of all, his halakhic position is that the consent of an important person is not required for enactments of the community, only for enactments of guilds. As I said earlier, that is a dispute among the medieval authorities (Rishonim). But look at the reasoning—very interesting reasoning. His reasoning is not that the guild must protect the public interest, meaning that the Torah scholar must safeguard the interests of the public. He says: as long as there is no consent of an important person, they are like individuals who made a formal acquisition among themselves. In other words, like individuals—as opposed to what? And if there is consent of an important person, then what are they? A public. They are a public. So once again, in this responsum of the Rivash, and in the responsum of the Rashba above, which I think is its inspirational source, this is a responsum that really puts these concepts of public on the table.
And there is a very interesting point there. Rabbi Soloveitchik—I once saw this in some approbation by Rabbi Schechter, the current rosh yeshiva at Yeshiva University, I think, Rabbi Hershel Schechter, a student of Rabbi Soloveitchik—he brings in his name that since kingship in Israel was abolished, every Torah scholar has the status of a king. That is what he claims, for various matters. I do not think for everything, but for various matters. So what is a Torah scholar? What? Fine, that is again a big question. But what the Rema writes, that in our generation there is no Torah scholar—that solves all the problems anyway. But here the Rivash, it seems to me, wants to say: what is a king? A king in Scripture is called “one of the people”—“lest one of the people lie with your wife,” right? What is “one of the people”? The king turns the people into a public. In other words, he turns the people into a single entity. When you have a king, you are defined as a public. “King” means central government; I do not think it means specifically a king in the monarchical sense. A public with a common government—that is called a public. That is called “one of the people.” The king expresses these concepts, so it does not have to be specifically a king.
Here, when there is no king, what do we do? We already saw that in the Second Temple period, the nasi of the Sanhedrin, like Rabbi Yehuda HaNasi, was descended from the house of David and had the powers of a king, even though there was no formally halakhic king. But he wore, as it were, two hats. He also managed the secular public affairs vis-à-vis the Romans and so on; he was the representative of the public. Why? Because they basically concentrated in themselves the authority of the king and the nasi of the Sanhedrin together. Until then, when there had been separation of powers at the beginning of the Second Temple period—perhaps there were still kings, meaning the early Hasmonean period before they became corrupt—but afterward that was over; it became one authority. And after it became one authority, all powers concentrated there. And we said that there the court administers punishments not according to the formal law—that was really created then, because until then it had been the role of the king. In the period of the Sages there was no king, so that reverted to being the role of the court.
Now the Rivash claims that the same thing is happening now, in the period after the formation of the communities. The Torah scholar in the community is the king of the community. “King,” I do not think, in the sense that he is allowed to kill whomever he wants, or with all the powers of the ordinary king. “King” in the functional sense: he is the one who expresses the fact that there is a public here. Therefore he says that if there is no consent of a Torah scholar, then what? Look at his wording: “they can only make stipulations like individuals and by formal acquisition.” In other words, if there is no consent of a Torah scholar to their agreement, then it is like three people who made a formal acquisition and have some business arrangement among them. That is their right—but it is not the law of a guild, it does not bind their descendants. Whoever signed, signed, and whoever did not, did not. That is his point.
So for the Torah scholar there is a completely different perspective here. We are not now looking for explanations of supervision, protection of interests, and therefore we need the consent of the Torah scholar. The consent of the Torah scholar is required in order to define this as a public in the first place. And perhaps that really addresses what you said earlier—that every two butchers will announce: we too are a public. A lone butcher, a group of one limb is also a group, so he too will announce: I am a public. So for that you need a Torah scholar to decide who is called a public, in the practical sense too, not only in the metaphysical sense. He has to determine that this body can be considered a public from the standpoint of Jewish law. And therefore if there is no consent from him, then it is like an agreement between individuals, with all the attendant definitions: it requires a formal acquisition. An agreement of the many does not require a formal acquisition—it binds the children—an agreement not of individuals but of a public. An agreement of individuals binds those who signed it; it does not bind future generations.
So here there is a completely different conception of the Torah scholar, of the important person. One has to pay close attention. But consistent with his own view, he says that for a community one does not need the consent of an important person, only for a guild. Why? Again, because a community is defined as a community; for that you do not need this—it is clearly defined, it is a territorial definition. Unlike a guild. A guild is a virtual community. One lives here, one lives there—so what? They all engage in slaughtering, so what? Does that turn them into a community? In what sense are they a public? So you need the seal of a Torah scholar to define: okay, legally you are a corporation. It is like registering a corporation with the office of, I do not know, the registrar of corporations, if there is such a thing—I do not know it. So it is the same idea. There is a legal act here that turns this group into a corporation. The Torah scholar is basically that legal act there.
By contrast, a community does not need any registration. Everyone understands that there is a public here; it lives together in the same place, it has institutions, so clearly it is a public. It does not need the consent of an important person. Those medieval authorities (Rishonim) who disagree with the Rivash and hold that the consent of an important person is needed even for a community, it may very well be that they simply understand that this too is required in order to define the community as a public, to define it more sharply as a public, because even there there is a large gray area and so forth. So the consent of an important person is needed in order to define that thing as a public. That is the metaphysical definition. Practically, clearly this is needed, because otherwise there would have been a huge mess here. That is simply the bottom line: without this there would have been a huge mess here.
The second tool, besides the consent of an important person—and with this I will conclude—is that the interpretation of enactments is given over to the Sages and halakhic decisors. In other words, when there is a dispute over the interpretation of an enactment, whom do you go to? On the face of it, you would go to a lawyer, I do not know, to whoever sat in that meeting, to ask what they intended. No—you go to a halakhic decisor. And there are responsa on this: with enactments, the binding interpretation is the interpretation of the one authorized to issue halakhic rulings. In other words, the halakhic decisor is the authoritative interpreter of the enactments, even though the enactments are administrative matters; they are not connected specifically to Jewish law, not to Torah matters as such—management of ordinary life, traffic regulations, do we drive on the right or the left, what does that have to do with the seal of a halakhic decisor? But again, there is here a desire to bring yet another area under authority, in order to keep this whole thing from getting confused, from scattering.
All right, we will stop here. I think this will more or less suffice for us as a beginning.