Lecture dated 18 Tevet 5767

Table of Contents

• [0:01] The connection between Jewish law and a civil legal system
• [2:23] Historical background of the community institutions
• [15:34] The process of forming the institutions and dual government
• [19:15] Moses as a religious leader and king – historical examples
• [21:41] The dispersal of the Jews and the halakhic challenge created after the Babylonian exile
• [28:18] The question of the legitimacy of secular law
• [30:00] Missing central institutions – the need for alternative mechanisms
• [32:05] The source of authority for the local institutions
• [39:30] Lack of central authority and the difficulty of enforcement
• [42:35] Tosefta: the townspeople are permitted to enact ordinances
• [51:24] The principle of “follow the majority” as a source
• [53:29] Religious court confiscation is legally effective – a halakhic possibility
• [54:48] Only a property right and the limitations of the religious court
• [55:50] The value of extreme refusal in the recent period
• [57:07] Summary of the four sources and the implications

Summary

General Overview

The text raises the question of the meeting point between Jewish law and reality through the emergence of community institutions, communal ordinances, and their validity, and presents the historical background for this, beginning with a situation of central government in the Land of Israel and in Babylonia, through the disintegration of the Babylonian center in the 10th–11th centuries, and the urgent need for binding local substitutes. It describes a double irony: communal ordinances rely on models of governmental authority, while at the same time the search for justification for modern state authority is conducted through an interpretive continuation of the powers of communal institutions. It argues that exile created a pattern in which a halakhic anchor is sought for every authority and every social rule, and presents the formation of the community as the mechanism that preserved the cohesion of the Jewish people without a central government. Finally, it outlines the basic problem: finding a halakhic source for the authority of the community to enact ordinances, and maps several interpretive routes of justification discussed by the medieval authorities (Rishonim).

The Purpose of the Discussion and the Relationship Between Jewish law, Reality, and State Law

The general topic is the confrontation between Jewish law and reality, and the discussion moves to the question of the emergence of community institutions, communal ordinances, and their validity against a historical background. The text argues that clarifying the validity of communal ordinances has contemporary implications, to the point that it may provide a basis for the validity of state law and help clarify from what authority the state compels obedience to laws, and whether a person committed to Jewish law is also obligated by the laws of the state. The text presents an ironic process in which the validity of communal ordinances fundamentally rests on the validity of governmental powers, but the modern search for a source of governmental authority is conducted through an interpretive extension of the powers of communal institutions.

Historical Background: Central Government in the Land of Israel and the Authority of the Sanhedrin

When the Jewish people lived in its land, local communities existed, but they functioned under the umbrella of central governmental institutions, and therefore the source of their authority is easier to explain halakhically. The text compares this to a situation in which state law authorizes municipal authorities, so that the validity of local law draws from the validity of state law, whereas the question “where does state law itself draw its power from?” is much harder. It describes a hierarchy of religious courts in every city, tribe, and district alongside the Great Sanhedrin in Jerusalem, and presents the Sanhedrin as a central source of authority from which the powers in the periphery derive. It adds that the authority of the Sanhedrin has an anchor in the Torah through “do not turn aside from all that they instruct you,” unlike other countries where parliamentary sovereignty rests on the people in a circular way.

The Babylonian Exile: the Exilarch, Autonomy, and “the law of the kingdom is law”

After the destruction of the Second Temple, the text describes the Babylonian exile as an exceptional case in which a central Jewish government was preserved in the form of the Exilarch, presented as a descendant of the house of David and as a continuation of royal authority. It states that the Jews enjoyed broad judicial and halakhic autonomy, including the ability to legislate and punish, along with religious courts and academies in Sura and Pumbedita, all of which drew their power from the Exilarch and required both governmental authorization and Torah-based authorization. At the same time, it emphasizes that sovereignty was not complete, because the foreign ruler owned the land, and from here comes the halakhic role of the foreign king within the framework of “the law of the kingdom is law,” based on ownership of the land as the criterion of territorial control.

The Disintegration of the Babylonian Center and the Emergence of Communities in Europe: the Problem of Authority

In the 10th–11th centuries the situation weakened, and the text brings the “famous myth of the four captives” as a schematic description of the dispersal of Torah centers to Italy, North Africa, Spain, and France/Ashkenaz, and of the emergence of communities without a central unifying authority. It argues that because of this fragmentation, the problem arises of who decides, and how different communities are synchronized so that they can function organically internally and in their mutual relations externally. It describes the crystallization of the discussion from the end of the Geonic period, its shaping among the medieval authorities (Rishonim), and its maturation into a developed concept around the end of the 14th century and beginning of the 15th century, mentioning figures such as Rabbeinu Tam, Maharam of Rothenburg, Mordechai, the Rosh, Rashba, and Terumat HaDeshen.

Dual Religious and Secular Government and the Mixing of Authorities in the Sources

The text presents an ongoing duality between secular government, which manages ordinary life, and religious government of the religious court and rabbis, which manages halakhic life, and argues that in ancient Israel the two authorities were originally distinct, but in the Tannaitic sources confusion was created because after the destruction there was no king and responsibility was funneled into the religious court. It illustrates this with the statement that the religious court “repairs the roads” in Moed Katan, and explains this as the transfer of the king’s functions to the religious court in the absence of a king. It returns to the ordinances of Joshua son of Nun as ordinances intended for secular administration, such as the prohibition on raising small livestock in the Land of Israel in order to prevent conflicts between neighbors, and emphasizes that such ordinances entered Jewish law because leaders like Moses and Joshua held both religious authority and governmental authority. It describes a later stage in which monarchy existed alongside the Sanhedrin, and after the loss of monarchy in the Second Temple period, secular authority once again merged with religious authority, including a description of Rabbi Yehuda HaNasi as head of the Sanhedrin and as a figure with royal characteristics descended from the house of David.

The Survival of Jewish Cohesion in Exile and the Claim That Everything Becomes Jewish law

The text describes the absence of central government after the disintegration of the Babylonian exile both in the ordinary civic sphere and in the religious sphere, and argues that the survival of the Jewish people in a dispersed condition without “a central system with teeth” is a great “miracle.” It states that the mechanism responsible for cohesion was the community institutions, and that because of the absence of a central Jewish secular government, many matters were funneled into Jewish law, to the point of including ordinary secular domains such as commerce within the halakhic corpus. It presents this as an artificial product of the exilic condition, and identifies its continuation in the modern conception according to which “everything is Jewish law,” and even binding morality is valid only if it is halakhically grounded. It argues that the very question of why a religious person is obligated by the laws of the State of Israel reflects an exilic habit of seeking a Torah anchor for every rule, unlike citizens in other countries, who are generally not troubled by the halakhic or external justification for obeying the law.

The Practical Challenges of a Community Without Central Authority

The text lists structural problems in maintaining communal ordinances without a central government: there is no explicit verse authorizing local institutions to legislate ordinances, and there is no central mechanism guaranteeing that the ordinances will not contradict Jewish law. It raises the question of “who will control the ruler” when every village can enact ordinances without supervision, and the question of interpreting the ordinances and deciding disputes between communities with different customs, similar to problems in private international law. It emphasizes that any individual can seemingly leave the community without leaving the city, because the land in exile is not under Jewish ownership, and therefore it is difficult to define who is subject to the community and how to enforce obligation. It presents the need for a halakhic anchor as the key point, because halakhic delinquency creates strong social sanctions that make it possible to preserve cohesion even without state power.

Searching for a Halakhic Source: a Principle External to the System and the Tannaitic Source of “the townspeople are permitted”

The text argues that the source of authority for a normative system cannot be found within that very system itself, and therefore one cannot ground the authority of the community on the fact that the community itself determined that people must obey the community. It presents a Tannaitic source from the Tosefta, Bava Metzia: “The townspeople compel one another to build for themselves a synagogue and to buy for themselves a Torah scroll and Prophets,” and likewise, “the townspeople are permitted to stipulate about the prices, the measures, and workers’ wages,” and to establish various fines; and in the Talmud, Bava Batra, “and the townspeople are permitted… to enforce their stipulations.” It emphasizes the novelty here, namely that this is talking about the townspeople and not the great religious court, and suggests the possibility that this is a rabbinic ordinance from a period when a central framework still existed and gave halakhic endorsement to local authority. It notes that “to enforce their stipulations” is a vague expression with many interpretations, and that even if this is a canonical source, the question of “why” behind it still remains.

Legal Fictions: “we act as their agents” and the Analogy to the Social Contract

The text brings from the Talmud in Gittin the idea of “we act as their agents” with respect to religious courts that are not formally ordained but operate by virtue of the agency of previously ordained judges, and presents this as implicit authorization and as a “legal fiction” intended to prevent institutional collapse. It compares this to Rousseau’s model of the social contract, in which civic obligation is understood as though a contract had been signed, even though no actual signing took place. It suggests that the Tannaitic source “the townspeople are permitted” could function as a real appointment and not merely as a fiction, but argues that for most of the medieval authorities (Rishonim) this was not sufficient, and they searched for a more substantive source from the Torah or from broader halakhic principles.

The Four Routes of Justification for the Authority of Communal Ordinances

The text presents several sources proposed by the medieval authorities (Rishonim) to justify the authority of the community. It presents one source as a rabbinic ordinance or scriptural support that grants local authority by virtue of an earlier determination from a centralist period. It presents a second source as an application of “follow the majority,” so that the majority of the townspeople binds the minority, and emphasizes that this is a far-reaching interpretive extension beyond the original context of judges deciding in a religious court. It presents a third source as “what the religious court confiscates is confiscated,” and shows how ordinances are grounded through indirect monetary sanctions, while noting the limitations and disputes over who counts as a religious court that can confiscate property. It presents a fourth source as an extension of “the law of the kingdom is law,” such that the seven leading men of the town are considered “like kings” in their city and receive a limited delegation of territorial authority, and it summarizes the four sources as the framework from which they will continue examining the implications and the further development of the mechanism.

Between Jewish law and other legal systems, and through the prism of the question whether it is possible, and in what way, to incorporate parts of Jewish law into some kind of civil legal system. Is there a packet of pages? Yes. What I want to do starting today and a bit further on is to deal with another aspect of the confrontation between Jewish law and reality; that’s really our general topic this year. And that is the creation or crystallization of community institutions, community enactments, their validity, and so on. How exactly one grounds such a thing against a certain historical background—I’m not an expert in the historical matters, but without at least some historical background, you can’t really do it. And I think this has a great many implications, both for understanding how Jewish law copes with reality, and in current terms as far as the content is concerned. Meaning, if we understand the meaning or the validity of community enactments, then ironically, as I’ll show in a moment, it’s also possible to ground on that basis the validity, say, of the law today in the State. A question that comes up from time to time is basically: what validity does the State have, or by what authority does the State compel its laws upon citizens? And am I, as a person committed to Jewish law, also obligated by the laws of the State, and why? As we’ll see in a moment, it’s a slightly absurd process, because the fundamental grounding of community enactments comes from sources whose basis lies in the authority of governmental powers. Because the expansion of governmental authority in some sense means that communities also have some reflection of that authority. And what happens today, ironically, is that when we look for a source for why governmental institutions have authority, we actually do it through an interpretive continuation of the powers of community institutions. We’re really making the journey backward. But I’m getting ahead of myself.

So let’s really begin with a certain historical background. Why do I think such an institution came into existence at some stage at all? What, weren’t there always communities? What happened that such an institution had to be created as an institution—where previously it wasn’t there, and afterward it was? So as long as the Jewish people sit in their land, clearly they are also divided into different places. In different places there are groups of citizens, and presumably there were community institutions of one kind or another even when the Jewish people sat in their land. Except that in those periods the local community institutions existed under the envelope, or within the envelope, of governmental institutions. And that greatly simplifies the halakhic attitude toward them. Because ultimately, as we’ll see in a moment, the basic problem is: what is the source of authority for community institutions? And finding a source of authority is always a hard problem. Where do you find a source of authority? We already spoke about that at least once. And in a place where there is some kind of envelope of governmental institutions, we can always lean on them. Meaning, as basically happens today in the State: state law authorizes the municipal authorities to act in areas relevant to them, and therefore the validity of municipal law receives, or draws, its force from the validity of state law. When we come and ask where state law itself draws its force from, that will already be a much harder question, because it has nowhere to draw it from.

There were tribes. What do you mean? That’s a kind of community. Yes, but there were also cities, not only tribes. Obviously, physically there were communities, that’s clear. I’ll explain in a moment anyway what the difference is. In fact I’ve already begun explaining what the difference is. Since the communities existed under some kind of envelope, or under the roof of a central political authority, the situation was different, as we’ll see in a moment. So here too, in the case we know in our State, and really in every state, the authority of a municipal body essentially draws its force from the authority of the governmental body. So in that sense, this is an easy problem. What authority does a municipal authority have to make laws and enforce them on the citizens within its jurisdiction? In the United States it’s the opposite. What do you mean? There were community settlements, and they would choose a town council and all sorts of things like that, and afterward—yes, but history is one thing, chronology is one thing, and essence is another. Today, if you ask an American—not about a state, I mean even about local gatherings, not a state—but if you ask an American today, he’ll give you the same answer an Israeli would. Meaning, in the end, today municipal law in the United States also derives its force from the state. It doesn’t matter that the historical process of formation was indeed the reverse, which in many respects is true here too. Meaning, here too, before the State was established, there was no authority. Every state had a governor, every state had a governor, and if the state was large and dispersed and divided, it had a governor with means. Fine. But still, a village or settlement with a few families, or a cowboy town somewhere—where did the municipal authority come from? Municipal authority is the basic authority with which we were born and with which we live, and afterward several towns created a state. No—the law does not work that way. Not in Jewish law and not in civil law. In law today, municipal legislation is delegated legislation. Meaning, in the end, the basic binding law is state law, and the state delegates powers to municipal authorities to legislate as well. It doesn’t matter how it arose chronologically, but in practice today, the snapshot as of now is not like that. And I assume that’s true in the United States too; it’s fairly obvious. Again, I’m not an expert, but it’s obvious that it was like that there too.

So in the end, let’s return for a moment to the historical description. When the Jewish people sit in their land, then of course there are communities, there are tribes, there are districts. The Talmud even says that there were courts in every city and city, in every tribe and tribe, in every district and district, in tractate Sanhedrin, as well as royal courts—the Great Sanhedrin in Jerusalem. So there were courts that essentially reflected that hierarchy of powers from the central government to the peripheries. And this also expresses the legal powers of each place to establish the laws and regulations observed in that place. There the question is easy, because in the end they all drew their force from the Sanhedrin. Where does the Sanhedrin draw its force from? So in our case there’s even a good answer to that, unlike other states where one must stop there. There’s no one who gives power to parliament. Parliament is the supreme sovereign. There’s no one who gives power to parliament except the people—but then of course that’s circular. In our case it’s of course written in the Torah: “You shall not turn aside from all that they instruct you.” So from our standpoint there is even some anchor for royal law; in certain respects the situation is easier.

From—that is, after the exile following the Second Temple, and I’m speaking now only from the Second Temple onward. The First Temple is shrouded in mysteries that I think are hard to decipher; we don’t have much documentation and it’s not really clear what happened there in these respects. But in the Second Temple period there is already documentation, and I think on the whole we more or less know what happened there. So after the destruction of the Second Temple there basically began—or, actually, there had already been—the Babylonian exile. The situation in Babylonia was a bit unusual. As the Talmud says: “The scepter shall not depart from Judah, nor the ruler’s staff from between his feet”—“the scepter shall not depart from Judah,” these are the exilarchs in Babylonia who ruled over Israel with a rod—that is, with a stick. Meaning, they had authority like the House of David, and they were apparently also descendants of the House of David. The exilarch in Babylonia, the head of the exile, was descended from the House of David. What does that really express? First of all, physically he existed—but what does it mean? It basically means that he continued that same authority once held by the king when we were in the Land. Then there was central authority, say, vested in the king or in the Sanhedrin, in the central government. And when we moved to Babylonia, in the end what happened was not all that much. What happened, essentially, is that more or less everyone moved as one unit to Babylonia, apart from a rather sparse settlement in the Land from a certain period onward. By “rather sparse,” I mean from a certain stage onward. And then what happens is that there is still central government even in exile. There is central government, and to a large extent autonomous; through most periods, as far as I know, highly autonomous. Meaning, the Jews had authority to run their lives—legislation, punishment, in every respect—and therefore in essence not much had changed yet. Not much had changed. Meaning, everything was transferred from the Land of Israel to Babylonia, except that in the Land of Israel there still remained remnants, and there were some frictions. Whoever knows the history knows there were disputes between the Land of Israel and Babylonia over who would determine, for example, the calendar. Rav Saadia Gaon had an enormous controversy that cut across the whole Jewish world with the Gaon in the Land of Israel in his time—who exactly was responsible for the calendar. There was a dispute there over how to set the calendar and who had authority to determine it. That was a very important matter, because basically the calendar is the infrastructure for all our religious life. But fine, those are remnants of the situation in which there were in fact two centers. At some stage that whole business was already fairly decisively settled in Babylonia’s favor—not entirely; almost until the very end of Babylonian Jewry there was still a center in the Land of Israel that laid claim to the crown, at one level or another. There were geonim in the Land of Israel until, I believe, even the eleventh century. The end of the tenth century, beginning of the eleventh.

Until the Crusaders fell? Meaning, the end of the Jewish settlement in the Land of Israel was when the Muslims handed over to the Crusaders. Yes—no, I’m talking about the Gaon, the Gaon of the Land of Israel; that was a little earlier, I think. At the beginning of the eleventh century, I believe, there was still a Gaon in the Land of Israel, and I think he moved to Babylonia, but by then even in Babylonia the Geonic period was already weakening. Notice: the eleventh century is already Rashi and Maimonides. That’s no longer the Geonim. Meaning, throughout almost the entire period in which there was central government in Babylonia, there was also something—admittedly weaker and less authoritative—in the Land of Israel. But essentially not much really changed, because we had moved as one national unit to Babylonia. There was one difference, though: of course this was not full sovereignty. Even if there was judicial autonomy, it was still clear that it drew its force from the royal rule of Babylonia, from the government of the gentiles. They were in fact the owners of the land, which in Jewish law often determines who has legal authority—the king. The law of the kingdom is law. He has authority because he owns the land. That’s what the Talmud says. Meaning, he can do what he wants with the land; he is the master of the land. That’s an indicator of who really controls the territory in question. Therefore, in Babylonia that already was no longer the case. Meaning, there was no control over the land; we weren’t sovereign in the political sense. But there was judicial autonomy, halakhic autonomy, so that the Jewish people could still function more or less as they had in the Land of Israel. There was a great court, there was the exilarch, he would appoint judges in various places. At a certain stage there were Sura and Pumbedita, there were two academies. Academies and courts are the same thing in Babylonia; the head of the academy and the head of the court are really the same person. But they all basically drew their power from the exilarch, and in the Talmud we know this well, the Talmud documents it. The Talmud itself describes who may be a judge and who may not be a judge, whether permission from the exilarch is required, whether ordination from previously ordained sages is required. These are parallel systems. You need permission from the government, from the exilarch, and also substantive ordination—that is, that you are in fact enough of a Torah scholar to be a judge. That of course you receive from another ordained person, meaning from someone who is himself ordained. So you can also receive some kind of ordination to issue rulings of one sort or another; in Babylonia it was no longer exactly the same as it had been. But there was still a situation in which there was central government. The whole setup was transferred from the Land of Israel to Babylonia.

What happens in the tenth century, the eleventh—the end of the tenth century—is that this whole arrangement begins to weaken. The famous myth of the four captives. Yes, there’s that well-known story of the four captives who left Babylonia by ship and were captured by pirates, who sold them in four different places. One was Rabbi Chushiel, the father of Rabbeinu Chananel. And three others less well known than he—I don’t remember the names anymore. They reached various places, one to Italy I think, one to North Africa, one to Spain, and one to France or Ashkenaz, something like that, I think that was the distribution. And each one of them effectively started—again, of course this is a schematic description that was told afterward—each one effectively started the community that later became established in those four centers, and then fragmentation began. Meaning, the Babylonian exile disintegrated, the Jewish people scattered to various places, and in each place communities arose. There was no longer anything central that united the people. Then the problem began to arise: what do we do in such a situation? Who decides? How do you synchronize all these different places and these different communities so that in some way it will still function organically on the one hand—that is, one alongside another, fitting one another. On the other hand, internally as well—that there will be some sort of inward authority, not just relations outward. That the communities should still function organically inwardly, and not just every man for himself, because without some Jewish framework it seems to me not much would have remained. Therefore all the discussion of these questions really begins in the tenth and eleventh centuries. That’s where it starts. At the end of the Geonic period there are already responsa of the Geonim on this matter, and even more so among the medieval authorities, and this whole business eventually crystallizes, it seems to me, around the fourteenth century. By then it more or less reaches the form we know—toward the end of the fourteenth century, I think, it’s already roughly crystallized. And we’re speaking of Rabbeinu Tam, Maharam of Rothenburg, Mordechai, the Rosh, the Rashba, and Terumat HaDeshen, I believe. He is really more or less at the end of the period of the medieval authorities, I think the beginning of the fifteenth century, which basically closes the treatment of this issue, and from then on the concept of “community” is a crystallized concept.

That is the historical picture. What happens within this process of crystallization of these institutions? First, there is a duality here that accompanies the whole business throughout, and perhaps earlier it actually wasn’t there: the duality of secular government and religious government. “Secular” in the sense of being responsible for ordinary life, not that the people are secular. But there is government responsible for managing everyday life, and government responsible for managing halakhic life—that is, the court, rabbis, and so on. These two authorities, at the stage when we were still in the Land of Israel, were in fact more or less one authority, and this creates a lot of confusion. Because our tannaitic sources were indeed written in the Land of Israel, around the time of the destruction and a little after it, and therefore the picture reflected in them does not always really reflect the original principles of Jewish law; to see those, you have to dig a bit. Because the picture that emerges from the Mishnah is that the court is responsible for everything. I think I already mentioned this once—the court is responsible for everything. The court repairs the roads; it says in tractate Moed Katan that the court repairs the roads in preparation for the festival. They are Solel Boneh, the body responsible for paving the roads, checking that things function administratively—that’s the court. Why the court? Why are these rabbis, these judges sitting in court, supposed to make sure roads are paved? The answer is: because there was no king. Once there had been a governmental duality even in the Land of Israel. Originally there is a duality. The king is responsible for managing life, ordinary life; for example, he is responsible for the king’s road. Exactly. And the court is responsible for religious life with all its powers. And there are indeed difficult questions: if the king does not judge and is not judged, how exactly do these two authorities confront each other or function together or opposite one another?

What happens after the destruction? After the destruction there is no king. A proper king there hadn’t really been even before the destruction—the Hasmonean kings were the last kings, and there already there had been a serious decline. But after the destruction there is certainly no central government at all, and then the feeling one gets from reading tannaitic sources is that basically the court is responsible for everything. There aren’t multiple authorities; the court is the secular authority, the religious authority, it is everything. As an example—I’ll give just one example that started even earlier. Joshua son of Nun enters the Land, much earlier; Joshua son of Nun enters the Land, and there are the enactments of Joshua. There are many enactments he made in order to manage secular life in the Land. For example, not to raise small livestock in the Land of Israel. Because small livestock go and eat from the neighbors’ fields, and that causes a lot of neighborhood disputes and theft and so on—if we recall Lot’s shepherds and Abraham’s shepherds. Joshua wanted to prevent that, so: no raising small livestock in the Land of Israel. What is that? What we would call today a secular law. There’s no religious issue here; you just have to manage life in such a way that there won’t be neighborhood disputes—that people drive on the right side of the road or the left side, there are all sorts of principles. Life has to be managed in some way. There is no religious meaning to it; it’s just technical management of life. Those enactments of Joshua entered Jewish law. Unlike every enactment of the seven leaders of the town, or of secular authorities—“secular” in the sense of ordinary life—other enactments do not enter Jewish law. Meaning, there is some kind of mixture, and often it is very hard to draw the line between the secular aspect of Jewish life and the religious aspect. Because the basic authority, say in the period of Moses and then Joshua after him—Moses carried both roles. He was the religious leader and he was the king. He was the Sanhedrin—“Moses stood in place of seventy-one,” as the Talmud says—he is the Sanhedrin and he is also the king. Moses is also regarded as a king by the Sages. Meaning, Moses our teacher did everything. So what came out of that? Every secular law that he enacted entered the Shulchan Arukh, because it had religious force.

Now at some point this whole thing split—I’ve simply gone backward in time. This whole thing split when kingship came into being. Then there was a king—David, Solomon, and so on were kings—and there was a Sanhedrin alongside them, and there was supposed to be something functioning in parallel: government of the ordinary and government of the holy, and they were supposed, in some kind of symbiosis hopefully, to function together. Then we lose—I’m skipping of course over the First Temple and the exile after the First Temple—we come to the Second Temple, and we lose the monarchy. The two roles come back together; it’s as if it returns to the state that existed in the days of Moses our teacher. Rabbi Yehuda HaNasi is the president of the Sanhedrin, but he is also a king. He too is descended from the House of David, and that is not accidental. The nasi’im, the presidents in that period, were descendants of the House of David. The Talmud says that Rabbi was descended from the House of David, therefore he judged David favorably, saying, “Whoever says David sinned is merely mistaken.” The Talmud says Rabbi said that because he was descended from the House of David. Meaning, I don’t think that is just an accidental biological fact, that he was descended from the House of David. What happened there is that secular authority reunited with religious authority, so the king, who is supposed to be from the House of David, is also the president of the Sanhedrin. And then from the standpoint of the problems we are talking about here, there is no problem at all. Everything is holy, everything is Jewish law, the authority is completely clear. Everything is clear. No one can argue with the Sanhedrin. Whatever the Sanhedrin says has halakhic validity, rabbinic, Torah-level, whatever it may be. Whoever argues with them is a rebellious elder. There is no problem whatsoever.

At a certain stage central authority ceases, but this does not happen in the exile after the Second Temple, at the beginning of that exile, because in Babylonia, as I said earlier, it still continued. It happens after the Babylonian exile disintegrates. Only then does it happen. And what disintegrates is both systems. Meaning, we have no central government in the ordinary sense, and no central government in the religious sense. There is no central institution now that is responsible for deciding halakhic disputes or setting the calendar. The survival of the Jewish people from the tenth century until today is a miracle I simply cannot grasp at all. Far greater than all the miracles from the splitting of the sea. It is unbelievable. Such a thing is almost impossible. Almost impossible. I mean, we’re talking about a public scattered all over the world with no central system whatsoever, certainly not a central system with teeth. No teeth at all. It may be that from time to time there was someone considered a great Jew. So what? Where does it say that if some great Jew says something, everyone has to do it? So there was a great Jew somewhere, and even that was certainly always disputed, as we know in our own times. So how did such a thing survive? How did this framework remain—not only organizational, though organizational too—called the Jewish people, functioning in some way? People ask questions, they establish some kind of Shulchan Arukh; meaning there is some halakhic mechanism that is binding on everyone more or less. In the Shulchan Arukh itself it already says “some say this” and “some say that”; it’s no longer a ruling of the Sanhedrin. But still there is a very great degree of cohesion here. All the differences between Ashkenazic and Sephardic custom are, all told, marginal differences. Broadly speaking, it is very similar. This is something almost impossible to comprehend—especially among Jews, where every two Jews are three opinions. This thing is simply a miracle. You can’t grasp it at all with ordinary historical tools. I stand astonished before this phenomenon. It simply can’t be; it is truly unbelievable.

Now the mechanism responsible for this is the mechanism we’re talking about here. Because what eventually had to be done after the Babylonian exile disintegrated was to create some sort of substitute for a central government of ordinary life, and some sort of substitute for central government in Jewish law. As for ordinary life, that’s limited, because after all everyone lived in his own country, and there the authorities were the ones responsible for managing ordinary life. But again, what is ordinary life? Commerce, for example. Commerce is ordinary life, but Choshen Mishpat, which is part of the Shulchan Arukh, is supposed to regulate the ways in which we conduct commerce. So there is a certain blurring between the management of ordinary life and the management of halakhic life. And so, somehow naturally, since we have no king and no central secular government among the Jewish people, everything was funneled into Jewish law. In many respects this is an artifact, by the way—it is an artificial product of the situation. Meaning, it was not supposed to be this way. Many of the laws found in the Shulchan Arukh, if everything had developed naturally, it seems to me, would not have had to be there. It is only because there is no central government that the only way to bind things together as something obligatory was to define them as Jewish law. Since Jewish law was still perceived as something binding. And if the Noda B’Yehuda says something, all of central Europe knows that that’s what needs to be done, even though you are not subjects of the Noda B’Yehuda and no one—he generally has no particular authority. He had a little; there really was some autonomy there, he had good relations with the empress. But still, it doesn’t matter. All the great authorities in all other places and times did not. Yet it still helps preserve this cohesion—through what? Through the fact that the laws of ordinary life, as it were, also enter the halakhic corpus. Meaning, Jewish law essentially becomes the only option for providing a basis that will obligate everyone. And therefore everything turns into Jewish law.

By the way, this is a fascinating phenomenon also in terms of its developments today. Because the development of this phenomenon today has actually brought about that conception—which I think has neither root nor branch—that says everything is Jewish law. Meaning, they recognize nothing beyond what Jewish law requires, including even morality. Including everything else. Meaning, everything has to be anchored halakhically. When I ask the question: why am I obligated to obey the laws of the State of Israel, as an observant citizen—why do I have to obey the laws of the State of Israel? The very asking of that question is strange. What do you mean, why? What kind of explanation are you expecting? A halakhic explanation? What does this have to do with Jewish law at all? It belongs to my ordinary life. As a person who lives ordinary life too, not only in the synagogue but also in other places, there are rules for how one conducts ordinary life. Why doesn’t a Frenchman ask himself: why do I have to obey French law? Apart from a few philosophers who always ask these questions, but basically that is not a question that troubles the citizen. For the citizen it’s obvious that if you live within a society, you must obey the rules practiced there. Among Jews it’s not like that. With every matter they immediately start searching: wait, is there a halakhic basis? Who put this on me at all? Why exactly? Who said so? Why? This is the result of what Milton Friedman would have said—of two thousand years of exile, and those are what save us. Milton Friedman said that what saves the State of Israel is two thousand years of exile. The government does everything to destroy things, and the Jews have already gotten used for two thousand years to circumventing whatever the government tries to do to them, and that is what saves the State of Israel. He was, after all, a capitalist and didn’t like the centralism practiced here.

In any case, I think these things leave their mark to this day. All kinds of conceptions that say everything is Jewish law, that everything has to be examined through a halakhic prism, that if it has no halakhic anchor then it has no validity—these are results of that education of two thousand years of exile. I don’t think that in the days of King David, anyone looked into the Torah to check whether King David had authority to determine what to do here. Although the Sages later did do that. There are passages in the Torah about the king, but I don’t think those passages are passages in the simple halakhic sense in which we speak of grace after meals or Sabbath observance. It’s obvious there has to be a king because life has to be managed; that is simple, it doesn’t need a halakhic anchor. But following the two thousand years of exile, we got used to the idea that the only anchor that can exist is a halakhic anchor. Because apart from that there’s nothing—everyone for himself, every person at another end of the world. So somehow, within this pattern, we are used to looking for a halakhic anchor for everything.

No, I think every government, even one based on force, ultimately seeks some philosophical anchor. And you see that in many things. One could also mention, say, Nachmanides’ comments on the weekly Torah portion, “Come, let us deal wisely with him,” meaning even Pharaoh feels a need—those enactments lacking legitimacy still feel a need for legitimacy. I think Nachmanides here represents something—not exactly. Obviously there is some measure of this. First of all, that’s what I mentioned earlier: philosophers always ask. There have always been such people everywhere, asking why one must obey the law. It’s an important philosophical question. The average citizen is usually not troubled by it. He isn’t troubled because for the average citizen—what do you mean? Obviously one has to obey. I’m not looking for some anchor in some system external to me and then begin to split hairs over whether I find the anchor there or not. Jews, I think, are more troubled by it, and the more religious they are, the more it troubles them. And it’s not only because there are contradictions. I don’t think that—that’s a superficial view. It’s not only because there are contradictions between secular law and Jewish law. It’s something much deeper in the genes, so to speak. Meaning, it exists even before the contradictions. In general—why exactly? Why should I accept the authority of something that has no anchor in the Torah? That comes even before the question whether it contradicts something or doesn’t. There is some point here that I think has been shaped over the last two thousand years, and therefore it is so hard to deal with. You can see it in how constantly conditional the attitude is toward institutions here. It is not self-evident as it is in other countries. In other countries it is self-evident. If there is central government, then everyone obeys; that’s the law. “What is the law?”—that’s the bottom line. That’s all; you don’t need to say a word beyond that. When someone tells me, “That’s the law,” I ask, “So what?” Fine, that’s the law—so what? Why should one obey it because it’s the law? So what if it’s the law? These are the kinds of questions I think exist more among Jews.

In any event, at this stage, in the eleventh century, we are supposed to begin formulating alternative mechanisms, as we said earlier, for ordinary life and for halakhic life. Since ordinary life is no longer really in our hands—we can’t; there is no central government, not even like the exilarch, responsible for arranging the ordinary life of all the Jewish people in all the places to which they are scattered—so indeed the center shifts more and more to the halakhic realm. And that is really a difficult problem. Meaning, how to organize this in a halakhically grounded way—not just the tactical question of how to organize it. When you work in Jewish law, you have to work the way Jewish law works. That is, in Jewish law, if you bring me a halakhic claim, you have to bring me a basis, you have to bring me a source, otherwise I do not accept it. Meaning, these things cannot simply be created out of nothing. There has to be something for which you can propose a basis. But there was no basis. And you can see in the responsa during those four hundred years until it crystallized that everyone proposes something else, with extraordinary interpretive creativity, because it is clear that there really is no unambiguous source that can ground the authority of all sorts of such community institutions in the halakhic sense. Which only adds what I said earlier—that I’m not at all sure one even needs such a source, but the Jews decided that one is needed. Meaning, some anchor has to exist, and there is no anchor other than a halakhic one. But Jewish law operates in its own ways—you have to find a verse, an exposition, something that will give these things an anchor. And therefore we look for anchors.

And that is basically what Jews are doing in those four hundred years. The Jews, the authors of the responsa, those whose writings have survived in our hands. I’m not talking about the average citizen; I don’t know exactly how he related to these things. What they are doing in those four hundred years is trying to crystallize this institution of the community, to find its normative basis, the basis that gives it halakhic validity. What one needs to search for in order to create such a thing is, first: where exactly does any institution get authority to establish rules, enactments—I mean local institutions. Where does that come from? There is no verse about this. Even according to Maimonides, for whom “you shall not turn aside” gives the sages authority to enact decrees, that refers to enactments for all Israel, and those sages are the Sanhedrin. That’s it. Now when I ask myself: here sits a mayor and he determines all sorts of things. Here you have to pay this way, here you have to drive, here you may not park, there you may park. What is his authority? Why do I have to listen to him at all? Where does it come from? Is there a verse about it? There is no verse about it. So what do we do? Fine—today we’re already used to it; the mayor has a police force. But when he needed to establish the city and the police force, he had to persuade people: friends, I’m the mayor, I have authority, come join my police force and beat up whoever doesn’t obey me. Why would they cooperate with him when the whole thing was just being created? You have to ground this somehow, this legitimacy. To persuade people that there is substance to it, that I have a source, I can show you the verse from which I draw my authority and therefore you have to obey me. So that is the first question. Where does the authority to rule, to enact regulations, to determine such things come from? Both ordinary and sacred, by the way. “You shall not turn aside” is over; there is no Great Court. So what then? What other verse do we know that gives authorities power to establish laws, to enact regulations? Not necessarily scholars—government not necessarily of scholars, but government of what are called “the seven leaders of the town.”

Second point: one needs to ensure not only that one finds authority, but also that the enactments enacted do not contradict the principles of Jewish law. Now pay close attention. If there is a central institution, the Sanhedrin, or even the exilarch in Babylonia, there is no such problem. There is no such problem because all the sages sit there, all the greatest scholars of the generation, and they are the ones who determine things. So they always know, they know everything, they care about preserving consistency with what is written in the Torah, and so they will do it in accordance with what we know, in accordance with Jewish law. But when we get to a situation where in every little village in some backwater there sit eight Jews and they also have a mayor—or at least one mayor for eight Jews; actually maybe they need more than that—then what guarantees to us that what the mayor of that little shtetl determines fits with what is written in the Shulchan Arukh—or in his time, in Jewish law? Why shouldn’t he now enact a regulation that it is permitted, or even a commandment, to eat pork? If his enactments have validity, he can do whatever he wants. Who will control the ruler? In a place where we have central government, every small town—the problem may perhaps exist, but if the mayor here does something I don’t like, I go to Jerusalem or send a letter to Jerusalem; the Great Court will send emissaries here and see what is happening. And if they need to chop off his head, they’ll chop off his head. There is someone to manage things; there is central government. But in a place where there is no central government, that’s it—whoever is here is the Jew managing the lives of the fifty Jews who live here, and that’s it. There is no one above him. So what do we do? Does everyone do whatever he wants? There are now fifteen hundred halakhic systems that will emerge from this, a large part of which will not even fit halakhic foundations. Preserving such a thing is nearly impossible.

Another point: who will interpret the enactments? There are enactments established by the seven leaders of the town. Who interprets them? In Jewish law there are courts, there is an organized system, there are people authorized to interpret. In the case of dispute one ascends to the larger court until one reaches the court of seventy-one, and there everything is settled. This way or that way, by vote, but there everything is settled. But when there is nowhere to ascend to—we are not organized in districts, regions, courts. Every city has its own local sage, or its own mayor, or its own seven leaders of the town; no one goes up anywhere. What happens when there is a dispute? How is it decided? If there is a transaction between a resident of this city and a resident of another city, and in this city they practice one certain custom in the area of commerce—not contrary to Jewish law, nothing like that, just a particular commercial custom—and in that city they practice a different custom, then what do we do? Who will decide? There is no district rabbi or district court to which both cities are affiliated. Usually there wasn’t. There are exceptional cases—the Sanhedrin of Napoleon, or the Council of Four Lands—those are exceptional examples. But usually there was no such thing.

This is what in modern law is called private international law—not law between states; that’s public international law, general international law, I don’t remember, public I think. When there are conflicts between states, how are they decided, what is done, how does one declare war, when is it legitimate to go to war, and so on—that is international law between states. There is private international law: a citizen of country A and a citizen of country B did business, or one harmed the other. According to which law do we judge—according to country A or country B? There are different rules in different areas. So the world somehow tries to organize this in various ways, and it is really very far from simple. It is very far from simple because all the states need to agree to it. There is no one above to force everyone to agree. At some stage some central body was created and it can already decide a bit, but at the beginning, when it is being created, you cannot create it out of nothing. It has to come out of some kind of agreement—and why should everyone agree? I don’t agree, and that’s that; they can’t force me. Now that is on the level of states; there are power relations, there can be arm-wrestling. What happens between communities? There is a village here, a village there—what, they’ll hold some gathering and establish a district Sanhedrin? How? How do these things work? And if they don’t want to, who will force them to do it? There are enormous problems in somehow preserving these frameworks that had disintegrated.

Another problem: every individual can leave the community. The Jewish people cannot be left—at least according to Jewish law, one cannot leave. Meaning, if the Sanhedrin determined something, it obligates me wherever I go, whether I’m in Alaska or Antarctica, it makes no difference at all, even if I’m on the moon. Whatever the Sanhedrin determined, if I am born to a Jewish mother, it obligates me. The Jewish people cannot be left; that is a biological fact. But being a member of some community—something displeases you, okay, from today I’m not a member of the community, so what? Notice, I don’t even have to leave the city: I’m not a member of the community. The land isn’t yours, after all; the land belongs to the gentile. We’re in exile, in the eleventh century, right? We are living in exile. The one who rules the land—which is the Sages’ criterion for who has “the law of the kingdom is law”—is the gentile, the gentile king. Fine. Now there are two communities here, both under the same gentile king. Neither of them controls the land, meaning neither is the owner here. So I can now live in your city and not accept your authority. I’m not a member of the community. What, you’re going to tell me I must be a member of the community? I’m Sephardic, you’re Ashkenazic, and that’s it, finished. You’re Ashkenazim, I don’t recognize your authority. I follow the custom of that community over there, because I came from there or my parents or grandparents came from there, or simply because I feel like doing as they say. So what? How do you even define who falls under the authority of the community institutions? Will the community itself define it? What does that mean? I don’t recognize you, so how will you define for me that I have to recognize you? I won’t recognize that determination itself either. So without central authority, this is a situation in which you can’t enforce the law. Even if you create a law, anyone can leave it whenever he wants. I’m trying to show the enormous problems they faced in the period when the Babylonian exile disintegrated.

So indeed the basic question from which everything essentially emerges—and perhaps now that is clearer—is the basic question: what is the halakhic source of this authority, to legislate laws? Because if we find a halakhic source—now perhaps we understand why this is so acute. There is no other authority. Maria Theresa does not always look after us; sometimes yes, sometimes no. So there is no authority other than Jewish law. Jewish law still was a platform accepted by the public, and there were also sanctions against anyone who did not obey it; nobody would marry him anywhere. Meaning, it was pretty frightening to move outside the boundaries of those loyal to Jewish law, and I mean in the eleventh century. It still had significance. Meaning, it had not yet disintegrated. Therefore there was no choice; everything had to be grounded in Jewish law.

So now we are looking—that is the point, the Archimedean point of the entire discussion. Where is the source of community institutions? What is the halakhic source for the validity possessed by community institutions? That is the question. If we find such a halakhic source, it seems to me that all the other things more or less organize themselves. Because then we can also determine the definitions, and whoever doesn’t obey the definitions will be a halakhic offender. He won’t just be someone who doesn’t listen to these seven leaders of the town—okay, so he’ll go to that town over there. But if you are a halakhic offender, no one will marry you, no one will do business with you. That is already something much more problematic. Right? You can go do business with gentiles, so he’s an apostate, fine. There were always such people. That option exists, but it is something much more drastic. It still preserves cohesion at a fairly good level.

So we are basically looking for a source. Now, as I said earlier, when we look for a source for a normative system, it will never be found within it, right? Meaning, we cannot look for the authority of the community in the fact that the community established something. That cannot serve as a basis for the authority of the community to establish things. Just as the law cannot determine that one must obey the law. There is no such thing; there cannot be such a law. Because then why should I obey that very law itself? Meaning, there must always be some principle that belongs to a more basic system, and that is what determines authority. In our case, as I said earlier, there is such a system, and that system is the Torah.

So here all sorts of suggestions begin to arise. We already find statements regarding communal enactments—I now come to the page you have—the Tosefta in tractate Bava Metzia, which is a tannaitic source: “The members of the city compel one another to build for themselves a synagogue and to buy for themselves a Torah scroll and Prophets.” Notice, this was still written in a period when there was still central government. In that sense, tannaitic sources have a great advantage. Why look for a source? You need to look for a tannaitic source, because in the tannaitic period there was still central government, and that means it carries halakhic approval. Meaning, whoever doesn’t obey this is outside the framework. So: “The members of the city compel one another to build for themselves a synagogue and to buy for themselves a Torah scroll and Prophets. And the members of the city are permitted to stipulate regarding prices, measures, and workers’ wages.” All matters of ordinary life, yes? “They are permitted to enforce their determinations”—their determinations meaning to set all sorts of prices for things, fines, workers’ wages, how many days one has to pay within, all sorts of rules for how life is managed. “The members of the city are permitted to say: whoever is seen in such-and-such a place must pay such-and-such, and whoever is seen before the authorities must pay such-and-such. Whoever lets his cow be seen among the vineyards must pay such-and-such, and whoever lets the animal of so-and-so be seen there must pay such-and-such. They are permitted to enforce their determinations.” Meaning, the people of the city may establish all sorts of regulations: if so-and-so’s animal wanders among the vineyards, he will have to pay a fine. There are punishments for various things.

What is the novelty here? The Sages always established enactments; even Joshua son of Nun enacted enactments, and that was much earlier. The novelty is that here it speaks of the members of the city. “The members of the city are permitted” to do this, not the Great Court in Jerusalem. That is an enormous novelty. Where does that come from? There is no source in a verse. Rather, “the members of the city are permitted” means that we have here a tannaitic source giving authority to the members of the city. Likewise in Bava Batra: “And the members of the city are permitted to stipulate regarding measures, prices, workers’ wages, and to enforce their determinations.” “To enforce their determinations” is a very vague expression; it has many interpretations. Practically speaking, they can establish things and also compel what they established.

Still, this determination itself—is it a halakhic determination, or are they here wearing perhaps some other hat? Maybe. But the source is a halakhic source; it appears in the Tosefta and in the Talmud. These are not writings from communal record books; it wasn’t written in community ledgers. It appears in the Tosefta, which is a binding halakhic text, a canonical source. The Tosefta a bit less so, but the Talmud certainly is a canonical source. So this is a halakhic source. But still one must pay close attention: what does it mean, a halakhic source? Why indeed are they permitted? What does “permitted” mean? Why? Can one write whatever one wants in the Tosefta? Why are they permitted? So one might say that in that period, when the Sages still operated within a centralist framework, they established this as an enactment. They already saw that such a situation might arise—we had gone into exile, and here we are speaking of Babylonia. Exile is not a stable condition; they foresaw that it could continue to disperse further, and then a problem would remain. So they established an enactment at a stage when there was still a central factor able to enact such things—they established an enactment that the members of the city are permitted to enforce their determinations. The members of the city? Who are the members of the city? The residents. We’re not yet speaking about institutions at all; that’s another point. Yes, say in the Athenian model. Yes, say that for now. Meaning, we’ll see later how this develops; that too develops further. Government by representatives is the next stage.

So one could say there is some kind of enactment here, because no source verse appears here, right? They don’t bring here an exposition or a verse or something that serves as a source for this matter. So indeed, from the plain sense of the Tosefta, one could have learned that this is some kind of rabbinic enactment. We know an example of this, by the way: the Talmud in tractate Gittin 88a and elsewhere speaks of what is called the rule of “we act as their agents.” “We perform their agency,” the agency of the earlier ones. What does that mean? At some point ordination ceased, the ordination of sages. And when there are no ordained judges, there are many things the court can no longer do. The court cannot judge certain matters if the judges are not ordained. So what do we do? If there is no court, the whole thing falls apart. After all, there must be some factor able to enforce Jewish law, establish enactments, and determine the framework within which we act. So the Talmud says that the courts in Babylonia, of people who were no longer ordained, are courts that act by the power of the agency of the ordained judges in the Land of Israel.

Now pay close attention: we are not speaking here about ordination, because otherwise there would be no need to say anything. Anyone ordained by one who was ordained—obviously he has authority to judge; he is ordained. The ordained person ordained him, and now he too is ordained and can even ordain others. But that process stopped; there are no more ordained judges. There are no more ordained judges in Babylonia, and afterward there are none anywhere in the world; after some stage there are no ordained judges anywhere, even in the Land of Israel that has already ended. So then what? The Sages come and say—Not like Rabban Yochanan ben Zakkai… No, that has nothing to do with the concept of ordination here. It is only a borrowed term; it has no formal halakhic significance. So the Sages found some solution and said: “We perform the agency of the earlier ones.” What we have here is essentially some sort of implicit authorization. This was not done de facto; it isn’t that the ordained courts of old sat and established an enactment that from now on non-ordained courts could judge, because otherwise the whole thing would collapse. They didn’t establish it; no meeting of an authorized court that did this is known to us. But what? It is entirely clear that this is what they would have wanted to do. You can call this a legal fiction. We know such things from other legal systems as well. So from our standpoint, like the social contract of Rousseau. Yes, one brings Rousseau’s social contract as a basis for our obligation to social and moral rules and so on. Now I never signed such a contract, and to the best of my knowledge none of my family members or ancestors ever signed it either. So what? Rather, the argument is that from our standpoint this is a legal model telling us that we treat the obligations of every citizen in society as if he had signed some contract that the whole society signed among all its members. There was no such signature; it is an implicit signature, a legal fiction. A fiction that says: but since one cannot manage without it, we treat it as if there had been some meeting in which this contract was signed. That is what legal systems do; there are many legal fictions, some of them fascinating examples.

The physicians’ oath, yes. Not specifically the Hippocratic oath? No, it doesn’t matter. Even if there is a specific one—why am I obligated by it? The physicians’ oath is just another way of saying: you are obligated by the rules of medical ethics. The model is as though you swore some sort of collective oath. And here too, in this context of non-ordained judges, the same process occurred. We are essentially making a legal fiction as if there had been some collective appointment by those ordained judges back then, who appointed the non-ordained judges of the future because they knew that the chain of ordination could stop, and then the whole thing would scatter—there would be no judicial authority, impossible. The same can also be said here. Essentially there is no longer authority of a king, no authority of—and that is the secular authority. There is no authority of the Great Court, which is the religious authority. Now we are in all sorts of communities, every village with its seven leaders of the town and the rabbi—yes, these are generally the two authorities, the religious and the secular, of every Jewish community. So where do they draw their authority from? From the agency of the earlier ones. They act as the agents of the earlier ones. But pay close attention: this is a fiction. No one appointed them as agents, ostensibly. Unless, when we read this Tosefta, perhaps this Tosefta itself is that appointment of agency. This Tosefta was written back in the centralist period. That is, when there was still central government. And it tells us that the members of the city are permitted to determine everything they want to determine. So here there is an actual appointment; this is no longer fiction. There is an actual appointment.

That is one possibility. Among the medieval authorities, maybe for some of them you could fit it in, but it seems to me that for most of them it doesn’t really work, and they seek a genuine source. And those sources divide into a few main types. There are medieval authorities who bring a source from “follow the majority.” The verse says “follow the majority,” and therefore if the members of the city gathered and the majority decide on some particular rule, then the minority must obey that rule—because it says “follow the majority.” This is a very far-reaching interpretive extension, because the principle of “follow the majority” was originally said only about a court. When there are judges in a court and there are disagreements within the court, the ruling follows the majority of judges. If there are three judges in a monetary case, and two think he is exempt and one says he is liable, then the bottom-line ruling is that he is exempt. Why? “Follow the majority.” That is, the majority of judges determine the ruling.

But there is no such general principle—at least not in the earlier sources—that wherever ten Jews sit, any nine of them can tell the tenth what to do. What, anywhere I happen to be with three or four other Jews they can tell me what to do by majority vote? Even in the Tosefta they compelled only in certain matters, not in everything. Right, right, right. And indeed one has to know what is similar to what is written there and what is not. Not everything can be done; there are things that cannot be done. Because it is not at all self-evident that one follows the majority. Pay close attention: it is not at all self-evident. We will see later the development of the matter, that this indeed also was not self-evident, and there were disputes around this issue. What does it mean? So eight people decide that one must pay a fine if one’s animal grazes among the vineyards? I don’t agree. What exactly gives them the right to force me to pay a fine because my animal grazed among the vineyards? So here this suggestion is one that perhaps finds a source in the Torah itself. That is its advantage. “Follow the majority” is a verse in the Torah. But clearly, when one examines the relation between the conclusion and what is written in the source, that relation is rather loose. Meaning, there is a nontrivial interpretive expansion here. That is one source.

A second source is the principle that “property declared ownerless by the court is ownerless.” There is such a rule: property declared ownerless by the court is ownerless. It applies in monetary law and says that a court can confiscate someone’s property. Property belongs to me, and the court can decide that from this day forward this property no longer belongs to me. There are certain limitations, there are of course disputes, but there are limitations regarding which court can do this. Not just any three people who sit down can do this. There must also be good reasons, and therefore there also needs to be some appeals instance to determine whether the reasons were good. Any three people can say: yes, we confiscated your property because the reasons were excellent, the reasons were very good, and we simply want that property, therefore we confiscated it. So I need to complain before someone; there must be some institution that, first of all, won’t do things like that. And indeed there are views that only the most important court of the generation can confiscate property. There are views even more far-reaching, that only a court like the court of Rav Ami and Rav Assi can confiscate property—who were among the greatest scholars of the generation in the Land of Israel, and thus this applies only to the Amoraim of the Land of Israel, so it has no application in later generations. Meaning, it turns this law into a theoretical law. In any case, there are those who base it on this principle of “property declared ownerless by the court is ownerless.” This assumes many halakhic assumptions. It means that many courts that are not among the leading courts of the Jewish people can confiscate property. Very far from simple and certainly not agreed upon. Further, it means the right is only a monetary right. Because the court cannot do whatever it wants; it can confiscate property, but it cannot do other things. So the right is ostensibly only a monetary one. Then all sorts of contortions begin, and they are very—right, but the court cannot determine whether your animal may graze among the vineyards or not. What it can determine, however, is that if it grazes among the vineyards, we confiscate one hundred shekels from you. Indirectly, we are essentially establishing laws here—how? Through sanctions. We have no ability to establish laws; we have the ability to impose sanctions, to confiscate property. So through sanctions we essentially establish laws.

By the way, in modern legal conceptions, there are such views—mainly liberal views—that say the law cannot determine for me what I am permitted to do and what I am forbidden to do. The law can determine that if I do something, I will be punished. Society may determine that, but it cannot get into my plate and determine what I do. Of course this has various interesting implications, but we won’t go into that here. And there is the value of extreme refusal in the recent period. Yes, although there they say: we are willing to pay the price as a society, and there it has broader legitimacy than these conceptions, because we are dealing with extreme cases—a black flag, or not necessarily a black flag but places where there is justification for refusal because it is highly exceptional, not because I simply disagree. It is deeply contrary to these principles, and there is fairly broad recognition of the legitimacy of that. Not only people holding that view accept such a step.

Maybe just to finish: the source of “property declared ownerless by the court is ownerless” is another source, and a final source brought is “the law of the kingdom is law,” which is really a wondrously expansive extension. That is, “the law of the kingdom is law” means that a king—and especially a king who rules the land, that is the condition according to the Sages—has authority to determine the law in the territory for which he is responsible. From here they make an interpretive analogy or extension and say: the seven leaders of the town, in their town, are like kings. They are given, delegated, the authority of kings for that town. Of course they cannot determine anything for anyone else, but for that town they are like kings. Fine? That is the last source, I think, that is brought in this context.

So if I sum up, we have basically seen four sources. One source may be that this is understood as some kind of support text or a rabbinic enactment establishing that local municipal government has authority, and the ones who established it were still people who themselves had central authority, so they could establish such things—that is one possibility. A second possibility is by force of “follow the majority,” that one must go after the majority. A third possibility is “property declared ownerless by the court is ownerless,” or a continuation of the court’s authority, or religious authority. And the fourth mechanism is a continuation of “the law of the kingdom is law,” which is a continuation of the secular mechanism. Fine? Those are the four sources. We’ll see later the implications and how this whole business develops further.