Lesson from Tevet 25, 5767

Table of Contents

• The historical background to the formation of the community
• Problems of authority and the need for halakhic grounding
• Sources in the Sages and the difficulty of building a system from them
• The responsum of Rabbi Yosef Tov Elem: Tiberias, Tzippori, the king’s tax, and excommunication
• The ruling of Rabbi Yosef Tov Elem: monetary law, no annulment, and the limits of permission
• The historical reading: authority from below and decision-making through a halakhic sage
• The question of the halakhic content of communal ordinances and entry into the canon
• Professor Haym Soloveitchik and the example of interest: local versus canonical
• Rashba: the local public as an authority and as an analogy to all Israel
• The expansion of “follow the majority” and its transformation into a principle of community
• Terumat HaDeshen and SeMaG: a communal ordinance as a transgression and as Torah-level law
• The concept of “public” versus “partners” and the need for institutions
• Summary of the move: transferring the functions of king and court to the seven leading men of the city

Summary

General Overview

The text describes how the collapse of the national framework of the Jewish people and their complete dispersal in the 11th–15th centuries created a new need for autonomous communal institutions, and how that need forced the development of halakhic justifications for the authority of the seven leading men of the city, for communal ordinances, fines, and bans. It presents the conceptual crisis that arose when there was no Jewish secular authority from which municipal authority could be delegated, and therefore the ordinary life of the community flowed into Jewish law. A central example is brought from a responsum of Rabbi Yosef Tov Elem concerning the king’s tax, excommunication, and the attempt by another community to release people from it. Later, positions of medieval authorities (Rishonim) such as Rashba and Terumat HaDeshen are presented, formulating the power of the local public, the authority of the majority, and the binding force of communal ordinances as an actual transgression, to the point of linking them to Torah-level law, alongside the observation that many local solutions do not become part of the canon, unlike the Shulchan Arukh.

The historical background to the formation of the community

As long as the Jewish people functioned as one large national unit, the institution of the community was less significant, and in the Land of Israel the framework was mainly the city within a broader royal structure. In Babylonia there was partial Jewish autonomy under non-Jewish sovereignty, and the Exilarch stood at the head of a hierarchy wrapped in a national framework. In the 10th–11th centuries a great dispersal began; the Geonim of the Land of Israel ceased in the 11th century, and the Four Captives were dispersed to Italy, to France and Germany—Ashkenaz, Spain, and North Africa—and communities developed throughout the world. This new reality created small communities with no central supervision over them, and that naturally raised problems regarding the community’s relation to the outside world and internal management without any higher Jewish authority.

Problems of authority and the need for halakhic grounding

The text presents two problems: how the community remains part of the Jewish people and how harmony is preserved among distant communities, and how one manages internal communal life when there is no one to turn to. It states that when there is no Jewish monarchy, you cannot invent secular authority out of nothing, and so everything flows into Torah and Jewish law, even in mundane matters. It describes how in the past there was a split between the rule of the king and spiritual institutions, and how already at the end of the Mishnah period Rabbi Judah the Prince effectively filled both a secular and a religious role, whereas in Babylonia a certain split was preserved between the Exilarch and a sage such as Rav Nachman. It emphasizes that the absence of a royal framework led people to begin searching within Jewish law for sources of authority for inherently secular communal institutions, such as the seven leading men of the city, and presents this as a distinctively Jewish feature—the demand for scriptural-halakhic grounding.

Sources in the Sages and the difficulty of building a system from them

The text notes that there are only early signs in the words of the Sages, terse and tiny sources such as the Tosefta and the Talmud in Bava Batra on “the townspeople are authorized to compel one another regarding their stipulations,” and at times there is a blending with the idea of a professional guild. It presents this poverty of sources as producing a conceptual crisis, because on the basis of such a small foundation one must justify an elaborate system of communal government, coercion, and sanctions. It describes a process in which practical necessity dictates behavior first, and only afterward do people go looking for sources and ask what to do with someone who does not accept it upon himself, with the main tools left being fines and bans.

The responsum of Rabbi Yosef Tov Elem: Tiberias, Tzippori, the king’s tax, and excommunication

Rabbi Yosef Tov Elem, from the period of Rashi and roughly his surroundings in France (Limoges), is brought through Professor Haym Soloveitchik’s book, Responsa as a Historical Source, which demonstrates how responsa are used to extract historical data and how complicated the attribution of responsa and their wording can be. The responsum tells that the people of Tiberias needed to collect the “portion of the king” as a collective tax, and because of disputes over how to divide it, “they selected trustworthy men, the leading men of the city and the elders,” and accepted their assessment without appeal. The people of Tiberias decreed that excommunication and a fine of a litra would apply to anyone who refused, and two people refused to listen and went to Tzippori, where people ate and drank with them, did business with them, released them from the decree of the community of Tiberias, and gave them a written permit, bringing proof from the verse “when the ram’s horn sounds long, they may go up on the mountain,” through the rule that one court does not annul the words of another court unless it is greater than it in wisdom and number. When they returned to Tiberias they boasted of their letter of release. The people of Tiberias wanted to tell the king to collect the tax from the refusers because “the arrangements of the community are of no use,” but “their hearts reconsidered,” and they decided first to determine whether their decree still stood and whether the release granted by the people of Tzippori had any validity, and they sent the question to Rabbi Yosef Tov Elem.

The ruling of Rabbi Yosef Tov Elem: monetary law, no annulment, and the limits of permission

Rabbi Yosef Tov Elem rules that since the community selected trustworthy representatives and decreed by agreement, “no community has the power to revoke or annul it, neither because of greater wisdom nor because of a greater number of those permitting,” and the rule of “when the ram’s horn sounds long” does not apply here. He defines the issue as “monetary law,” and determines that in monetary law, where a court requires payment, even that same quorum and that same court itself cannot release it until the litigant is appeased, in the name of Rav Achai Gaon in the She’iltot; all the more so another community cannot annul it. He brings the source, “the townspeople are authorized to stipulate regarding measures, prices, and workers’ wages, and to compel one another regarding their stipulations,” and also the verse, “whoever does not come within three days, by the counsel of the officers and the elders, all his property shall be forfeited and he himself separated from the congregation of the exile,” as a source for “property declared ownerless by a court is ownerless,” as well as the rule that “the court may flog and punish not according to the Torah,” and he concludes that the court in every community is authorized to decree as the need of the hour requires, “provided it does not involve a Torah transgression.” He emphasizes that no person can exempt himself from the tax and from the community’s levy, “for they are even authorized to impose it on orphans,” and he concludes that permitting the ordinance would mean that “the restraint has been removed,” because in our times coercion is possible only through ban and fine, and one who nullifies them “increases lawlessness in Israel.”

The historical reading: authority from below and decision-making through a halakhic sage

The text emphasizes that the appeal is made to “the greatest rabbi in the area” and not to the Exilarch, because there is no other authority, and therefore the halakhic sage decides even a “semi-political” question of taxes and relations between communities. It sees in the responsum an indication that the 11th century was a crossroads at which there was still uncertainty, and the communities themselves were not sure what they were allowed to do and what they were forbidden to do, while the necessities of life required the creation of authority. It describes this new authority as growing from below rather than as an appointment from above, and parallels this to the development of communal “democracy,” with questions about majority and minority, participation in decisions, representative government, the election of communal officers and a rabbi, and the definition of the boundaries of his role.

The question of the halakhic content of communal ordinances and entry into the canon

A question is raised whether methods of distribution and ordinances determined by elected representatives become a halakhic ruling that cannot be changed, and what remains binding “to this day.” The answer draws a distinction between local ordinances and a canonical corpus for the public at large, such as the Shulchan Arukh, the Tur, and Maimonides, and argues that not every local ordinance enters the canon. An example is brought that the Rema included formulations like “in our place the practice is such-and-such,” raising the question of what that means as a “default setting,” together with the claim that a community can by agreement change monetary distributions, but the very transformation of a local custom into a default norm raises difficulty.

Professor Haym Soloveitchik and the example of interest: local versus canonical

From Professor Haym Soloveitchik’s book On Jewish Law, Economics, and Self-Image, a process is presented from the 11th–13th centuries in which the prohibition of interest “lost its human face” in practice because of the economic constraints of small communities, with justifications in Tosafot literature and in custom. It is argued that despite an enormous literature of local solutions, “none of it” entered the Shulchan Arukh, so that it looks as though there is a jump from the Talmud straight to 16th-century Safed. From here comes the claim that necessary solutions may remain local and not become canonical Jewish law, even if they are wrapped in halakhic approval for their own time.

Rashba: the local public as an authority and as an analogy to all Israel

Responsa of Rashba are cited (early 14th century, Spain), where a broad institutional consolidation is already visible. Rashba describes “each and every public in its place as the Geonim were for all Israel,” having enacted ordinances, and he brings an example of an ordinance for all Israel such as collection from “the movable property of orphans,” even though “by strict law it is not subject to a lien.” He uses the image of all Israel in order to ground the authority of the community, while still preserving the distinction that local ordinances do not necessarily bind all Israel in the way that the ordinances of the Geonim did, which entered the Shulchan Arukh. Rashba also rules that “whenever the majority agree, enact, and accept it upon themselves, we pay no attention to the words of the individual,” and he likens “the majority of each and every city” to “the Great Court for all Israel,” so that the decree of the majority stands and one who violates it is punishable.

The expansion of “follow the majority” and its transformation into a principle of community

The text presents the transition by which “follow the majority,” originally said regarding a court, is extended into communal life and public assemblies, because in the past the king or the Sanhedrin made the decisions and there was no need for a communal majority mechanism. It describes how in later centuries the discussion of majority expands even to questions such as “the majority of decisors,” and argues that there is a conception according to which historical circumstances reveal an aspect of Torah law that had been hidden. In this framework Rashba is quoted: “For every public and public, the individuals are considered as given over to the authority of the many, and according to them they must conduct themselves in all their affairs… and they stand in relation to the people of their city as all Israel stands to the Great Court or to the king,” whether the individuals were present at the time or not.

Terumat HaDeshen and SeMaG: a communal ordinance as a transgression and as Torah-level law

A responsum of Terumat HaDeshen is brought, citing SeMaG in the name of the Geonim, that one who swears not to enter into a communal ordinance “is considered to have taken a vain oath, like one who swears not to eat matzah or not to sit in a sukkah,” and from this he concludes that “a communal ordinance, too, is Torah-level law.” Another responsum is brought about a communal fine to charity imposed on anyone who violates an ordinance, and the discussion whether a husband is obligated to pay a fine for a transgression committed by his wife when she has no money of her own. Terumat HaDeshen compares the fine to atonement, analogous to a sacrifice for sin, and rejects the idea that the fine allows one from the outset to transgress and simply pay; rather, he determines that the act is a full transgression and the fine is intended to deter and to atone.

The concept of “public” versus “partners” and the need for institutions

The text defines the root of the problem as the creation of the concept of a “public” that is not all Israel but many communities, and it distinguishes between a public and a partnership by way of Tosafot on a communal offering, which does not involve the rule that “its owners have died,” because “a public does not die” and is not merely a collection of persons. It brings a principle from Rosh about “an oath of a community,” which binds even generations that were not present, and compares this to the obligation of being “already sworn from Mount Sinai” and to the idea that the Sages said all souls were present there—in the sense that the public as a collective accepted it upon itself. It also compares this to civil law, where legislation binds future generations because what is bound is the collective, which does not die, and it parallels this to the concept of a corporation and the “corporate veil,” which requires institutions as a mechanism of representation and decision-making. From here it follows that institutions are an inherent part of a public, and therefore if a community such as “Kasrilevke” is defined as a public, then its representatives automatically receive authority to serve as the address, to decide, and to bear responsibility.

Summary of the move: transferring the functions of king and court to the seven leading men of the city

The text concludes that the medieval authorities (Rishonim) transferred into each community the functions of government that had previously been split between king, Sanhedrin, and court, and concentrated them in the institutions of the community, chiefly the seven leading men of the city. Rashba sometimes derives from the king, sometimes from the court, and sometimes from “property declared ownerless by a court is ownerless,” in order to show that all the governing functions are now embodied in the communal institution. In closing, it is emphasized that the formulation linking a communal ordinance to Torah-level law also entered the Shulchan Arukh (Yoreh De’ah, section 228), even though before the 11th century there was no trace of this, and the hesitations of “Tiberias and Tzippori” serve as testimony to the point of formation, when the matter was still far from self-evident.

Okay, so we’re basically returning to the series of questions about the formation of community institutions. Broadly speaking, the picture was that as long as the Jewish people functioned as a national unit—I won’t say a political one, because the political aspect ended much earlier, but as one large national unit—then the institution of the community was less significant. In the Land of Israel, the concept of a community didn’t really exist so much; it was a city. It was a city, which of course included rule over the city’s land, and above that there was some sort of royal framework. In Babylonia there was a framework too, but of course that framework was partial, because in the end the government, the sovereignty there, belonged to non-Jews, and the Jews had autonomy in terms of jurisdiction and internal affairs. And the Exilarch stood at the head of the hierarchy; he was from the house of David and the continuation of the patriarchs, the patriarchs in the Land of Israel. His consent was even required for ordination and so on; that’s already documented in the Talmudic text. But still there was a unit there. Meaning, despite the exile and despite the fact that there was no government and no sovereignty, there was still some kind of unit. The core unit was wrapped in a royal framework. The city or the community was wrapped in some sort of national framework—not political, national. And in that sense this still isn’t really the concept of community.

In the tenth and eleventh centuries, the Babylonian exile basically begins to disperse; and the exile of the Land of Israel too—in other words, the sages of the Land of Israel as well, at that stage, the Geonic period of the Land of Israel, the Geonim of the Land of Israel, also come to an end in the eleventh century. Then the four captives—I mentioned this a bit—scatter to Italy, to France and Germany—Ashkenaz—to Spain and North Africa. Basically each captive, as it were, went to one of those places, and then communities really began all over the world. That’s where the real dispersion began. In effect, the final hammer blow of exile was in the eleventh century, even though the exile itself dates from the first century. And then problems really start to arise, like I tried to describe last time: ten Jews arrive in some village, and they constitute an autonomous unit. They’re not subordinate to anything, nobody can really do anything to them, and they do whatever they want. If they decide at all to appoint someone over themselves, they’ll appoint whichever one of them knows how to read, and that’s it—he’s the community rabbi, he decides what to do and he… or not. Or they’ll do it like the Athenian demos, right? They’ll do it in a town meeting, doesn’t matter. But there’s no framework that can ensure what is being done inside these little communities, to what extent it even fits Jewish law, what their connection is to the broader whole around them.

So basically two kinds of problems arise here. One problem is the connection between the community and the outside—meaning, in what sense is it still part of the Jewish people? How do you still ensure some degree of harmony between what develops in various exiles and in various small and remote communities that can sometimes really be completely disconnected from their surroundings? That’s in the outward sense. And inwardly—how do you manage life within the community itself when there is no central authority to turn to? So sometimes, if the non-Jewish king is very enlightened and decent, and you can also make use of his good services, then somehow you can manage some kind of life by virtue of his authority. But the Jewish authority is gone. The non-Jewish king does not guarantee that the Torah will govern life—that life will be conducted as it really ought to be—but at most some kind of minimal order, in the best case. And of course this also raises the issue of the internal side: how you run the community itself.

That’s the historical background, and I think it more or less concludes in the fifteenth century. From the eleventh to the fifteenth century there is a process of forming the institutions of the community and the halakhic concepts that accompany that process of formation, and it really is parallel to the historical process I just described. The parallel process is how, in halakhic and Torah terms, to establish the fact that the authorities of the community have authority—the authority of the seven good men of the city, and so on. Even though this appears in the Talmud in one sense or another, it goes much further in terms of community, because they aren’t nourished by any other central authority, and the question is: who appointed them? Where did this come from? The Exilarch didn’t appoint them. There’s no one here who can grant authority; there’s no royal authority delegating power to a municipal authority, municipally, as we know it today. There’s no such thing. Every place is on its own.

So therefore, a kind of halakhic problem arises too, and I pointed out that I think this is an interesting insight: seeing everything through a halakhic prism, through halakhic glasses, stems from this point, and it accompanies us to this day. I don’t think it existed originally. Everything has to be anchored—and when we talk about anchoring it, you always talk about anchoring it halakhically. Everything has to be judged with halakhic tools and halakhic concepts. Why? In the past, when the king ruled, his rule was secular, like the government we know today. There was a king; beside him there was a religious court, a Sanhedrin; there was spiritual leadership—a priest, a prophet, depending on the period—and they were responsible for Torah life. There was some connection between the institutions; sometimes there was friction too, but that’s the nature of things, right? The emperor and the pope—that’s not a new invention, as is well known.

But at some stage, once we lose the monarchy, I pointed out that Rabbi—Rabbi Yehuda HaNasi—the heads of the Sanhedrin or the last patriarchs of the Land of Israel already at the end of the Mishnah period, are basically filling two roles. Rabbi himself was from the house of David, and basically fills two roles, both the “secular” one and the “religious” one. He’s both king and head of the Sanhedrin. He’s not formally king, but “the religious court repairs the roads”—that Mishnah I brought from Moed Katan. Meaning, the Ministry of Transportation is also the religious court. So that reflects the fact that there is no monarchy anymore, no one to manage secular affairs.

Now once they go into exile, a certain split is actually preserved, at least in some sense. There was the Exilarch, who was not necessarily a Torah scholar. Beside him there was always the head of the court—say Rav Nachman; he’s known as the great sage beside the Exilarch. And he was sort of the head of the court facing the king or something like that. And so there that split was still preserved, even though I think the Exilarch was very dominant—evidently, since his permission was needed even for ordination and things like that. But after things are completely dispersed, you can’t build something on a secular authority, because we simply don’t have one. Secular authority—if it doesn’t physically exist, then there is no such thing. If there is no king, you can’t invent secular authority out of nothing. You can’t say the Holy One, blessed be He, is our secular sovereign; that is, there’s no conceptual system that can provide a framework for such a thing. And because of that, everything gets funneled into Torah, into Jewish law. So the only way to anchor even the ordinary life of such a community is through Jewish law. And then people begin looking in Jewish law for sources that establish the authority of institutions that are essentially secular. Meaning, the seven good men of the city, I don’t know, all those who manage the city—and they begin looking for verses: where do we know that the seven good men of the city have authority? No other nation looks for such a thing. I mentioned that last time.

What do you mean? There’s a government and you have to obey the government, that’s all. Sometimes a bit by force, sometimes less by force. But it’s obvious. Philosophers ask such questions, but not the person on the street. No one on the street asks himself: wait a second, who says I have to obey the king at all? He’ll cut off your head and that’s it. That is, it doesn’t work like that. Among Jews, for everything they ask what verse it comes from. Meaning, where is it? Which paragraph in the Shulchan Arukh is it in? Why? But the local government—what? Those same Jews in exile had a king there, of course. Right, that’s true—but their goal was to conduct some autonomous form of life, not subject, as much as possible, to the non-Jewish king above them. Not only religious matters. Not only religious matters—secular matters too. They wanted to run even the secular life somehow according to Jewish law. After all, Jewish law has something to say also in the area of civil law, also in the area of managing life. But for that you need some sovereign who will enforce it, someone who will give it some sort of force. There isn’t one.

So either you really go to the king—and sometimes the non-Jewish king, in certain cases, there were such things. In Spain there were such situations. There was Napoleon’s Sanhedrin, or the Council of the Four Lands, or things of that sort, where there was almost—almost—secular government by force of the king in that place. But those are special cases. Usually every community was on its own, and in the Jewish sense completely on its own, and then everything has to be conducted in the halakhic sphere. Meaning, when I now ask why I have to obey the seven good men of the city, the answer is because Jewish law obligates me to obey the seven good men of the city. Where does it obligate me—what, is there a verse about this? There’s nothing. So this is a conceptual crisis. Meaning, this historical development has to be accompanied by some sort of conceptual halakhic backing or support; people have to start developing such concepts almost out of nothing. There are hints—I brought the Tosefta and the Talmud in Bava Batra there, about “they may compel one another according to their stipulations,” where there are some extremely laconic and tiny sources, two or three sources in rabbinic literature, that speak about the right of residents to appoint authority over themselves or to form some kind of association. Part of this is actually a trade guild, by the way; there’s some mixing there between those two things. But that’s not really it—there are no verses there, nothing. There’s a baraita that says the townspeople may compel one another according to their stipulations. Okay, to the extent that one even understands those words. That’s it. It’s not really a basis you can build an elaborate system on, like the one that had to be created here.

And so the halakhic process that accompanies this development—sometimes before it, sometimes after it, usually after it—usually it just happened because necessity dictated it, and afterward they went looking for sources and asking what to do with someone who doesn’t accept it upon himself. Then you need sanctions. If it’s not a religious matter, what can you do to him? But if it’s a religious matter, then you put him under a ban; now he’s no longer observing Jewish law, and so when he goes to another community he can’t tell them: wait, I belong to that community, what do you care what I did with them? Because maybe procedurally you belong to them, but in terms of Jewish law we all belong together. From the standpoint of Jewish law we are all one entity, and since that’s the case, if you’re in the wrong there and they placed you under a ban, then you’re under a ban among us too. Because a ban is a religious thing; it obligates the entire religious community, not the local geographic community.

Today I found a beautiful responsum on this issue—this wasn’t planned. There’s a very interesting book by Professor Haym Soloveitchik, Responsa as a Historical Source. Highly recommended. I think it’s a beautiful book, really clear and fascinating, at least to me. He’s the son of Rabbi Soloveitchik; he’s a historian at the Hebrew University, probably retired by now, but really a great Torah scholar, a very interesting Jew, brilliant in many ways. In any case, he has this book, Responsa as a Historical Source, and there he teaches how to decipher, how to extract from responsa facts or relevant data about history, about the surrounding reality. First of all, how you establish what the correct text of a responsum even is, and in manuscripts in general and responsa in particular, how you attribute it to a setting, because things moved around and got transferred and there’s terrible chaos. A responsum attributed to so-and-so may not even be from that period, not from him, nothing. Things rolled from book to book. I see responsa here; I’ve also seen in other places responsa where everyone writes: yes, it says in Mordechai. Which Mordechai? This responsum appears in ten different places under completely different names, from different places. It’s just amazing. That process is fascinating in itself, and it itself says something about connections between places, how responsa move from place to place; it tells you which places are in contact.

Anyway, among these things he brings a responsum of Rabbi Yosef Tov Elem. Rabbi Yosef Tov Elem—really around Rashi’s time. Right, in Rashi’s time, maybe even a bit before him, I think, in France, in Limoges in France. And he writes there—I’ll describe it briefly. It’s really fascinating because it’s exactly the point I was trying to make, and if I’d had this last time it might have made the point even better. He writes like this: “The people of Tiberias came to pay the king’s levy.” Tiberias—again, you see there’s also Tzippori here. At first I didn’t understand what Tiberias and Tzippori were doing there—he’s in Limoges, France, in the eleventh century; what Tiberias and what Tzippori? It’s because there was a local Tiberias there, yes, so it’s clear. In the literature there’s always Jerusalem and Bethlehem—not that this was actually Tiberias there. In halakhic literature, there are always two cities: Tiberias and Tzippori. It’s like Reuven and Shimon exactly; also in the Talmud it’s Tiberias and Tzippori. I’m not even sure that in the Talmud they always really mean Tiberias and Tzippori; maybe not, I’m not sure. But in halakhic literature it’s a known element. At first I didn’t catch that.

So they came to pay the king’s levy. The king had imposed a tax on them, but the tax was a collective tax, not per person. The community had to pay a tax to the king, and that put the community in a dilemma because it had to decide on some kind of allocation: how much to impose on each person. “And they murmured one against another, saying: you made your own burden light and mine heavy.” There was a feeling that the distribution wasn’t equal. “And therefore they selected for themselves trustworthy men, the good men of the city and the great men, experts among the people of the province from the community, to accept their word because they act faithfully.” Meaning, they decided that there would now be a representative body who would decide how much each person gives, and there would be no appeal, because they accepted them as people of integrity, accepted by the public. A committee, yes, exactly—but a committee that’s actually supposed to do something, unlike many cases.

“And all decreed as one to give into the hands of the collectors according to the assessors”—however much they assessed that you have to pay, that’s what you pay. No appeals, no nothing. That’s it—they will decide. “And whoever refuses their word shall remain under excommunication all the days of his refusal, and he shall be fined a litra,” and there would be a fine on him. “And the heart of the community was united to bring the tax promptly, out of fear of God and fear of the decrees.” Everyone did it and obeyed, both from fear of God but also from fear of the decrees; after all, if the tax didn’t reach the king then everyone would suffer, so there was fear there too.

“Except for two men who refused to listen and paid no heed to the decree, and they went to Tzippori”—here Tzippori appears—“and told there the whole matter, and they gathered them into a house in Tzippori.” So they invited them into a house in Tzippori for a celebration. They were under a ban, because they hadn’t accepted it and the community had decreed excommunication and a fine. Whoever did not accept it—that was in Tiberias. Now they arrived in Tzippori. Why should the people of Tzippori care what happened in Tiberias? They invited them to festivities in one of the houses. “And they ate and drank with them and did business with them,” meaning they traded with them. In other words, they did not observe the ban. “And they annulled for them the decree of their community in Tiberias.” They even performed an actual act of lifting the ban. “And they wrote a document of release in their own hand and gave them a document.” The religious court of Tzippori releases the ban imposed on them by the religious court of Tiberias.

And they brought proof from the verse: “When the ram’s horn sounds long, they may go up the mountain.” The Talmud learns from this that one religious court cannot nullify the words of another religious court unless it is greater than it in wisdom and number. It apparently follows from this—and all of this was probably tied together behind the scenes—that if it is indeed greater in wisdom and number, then it can. In other words, in principle a court’s act can be nullified; there are just conditions for when it can and can’t be done. And they apparently thought that they were greater in wisdom and number and could annul it.

“And when they returned to Tiberias”—afterwards these two hooligans came back to Tiberias—“they held their heads high and boasted of this matter.” They weren’t even ashamed; they walked around telling everyone, look, we have a written release, everything’s fine, we got out of this. “And when the people of Tiberias heard this, they became angry and said: let us tell the king to command the officers to take his levy from those who refuse.” They say to the king: listen, you imposed this on us as a community; these two guys are rebels. We’ll give you the whole sum except for what they owe; as for their part, send your officers and take it from them, “since the arrangements of the community are of no avail, for these decree and others come and undo it.” We can’t manage. This is exactly a reflection of the problem. There are two communities here. This community has been burdened with a tax; it has no choice, it must pay. It has no police, no government, no ability to enforce—only the ban. Then the other community comes and lifts the ban, and nothing is left. And there’s no one to turn to—no patriarch, no Exilarch, nothing. So they go to the king; what else can they do?

“But afterwards the heart of the people of Tiberias changed,” meaning they decided to think again—maybe they themselves weren’t right—“to inquire first.” They decided first to clarify before doing this whether “their decree stands”—maybe in truth the others had no right to do what they did. “And whether the release by the people of Tzippori has substance.” Maybe the people of Tzippori really were allowed to release their decree. “And the whole matter was doubtful”—something like that, the whole business was in a fog for them. They didn’t understand what they were allowed to do and what they were forbidden to do. Can a community decide such a thing or not? Notice—the eleventh century. The eleventh century is exactly the stage where this business arises and they still don’t know what to do with such a thing. They simply don’t understand. “And the whole matter was doubtful,” and I assume these were major towns. It doesn’t sound like we’re talking about some tiny village.

So they sent to Rabbi Yosef Tov Elem. That’s the question. And he answers them: “If it is as you wrote”—the Geonim also always start like this: assuming the facts you brought me are correct, because I haven’t checked them—“it seems to me that since the community selected trustworthy men for themselves and enacted an ordinance according to experts and issued a decree with their consent, no community has the power to undo and nullify it, neither by greater wisdom nor by a greater number of those permitting it.” He says: that whole law of “when the ram’s horn sounds long, they may go up the mountain,” that one court can nullify another court only if greater in wisdom and number, doesn’t apply here. Even if they are greater in wisdom, or more numerous among those permitting it, it won’t help. It doesn’t belong here. “For this matter is a monetary judgment, and wherever there is a monetary judgment, whether between groups of people or between two individuals, and a religious court has decreed upon the liable party to pay—even that same court and that same number of judges themselves cannot release it.” Once there is a ruling that you owe money, no court can nullify it. There’s no such thing.

By the way, in Jewish law there is no such thing as a court of appeals, for example. That was a major controversy with the establishment of the State, or really before the State, when they approached the British authorities and wanted to establish a chief rabbinate and courts. The High Commissioner—or there was some legal adviser whose name I’ve forgotten, a Jew but not exactly a typical sort of Jew, a known figure, I forgot his name, something with a T probably—said that this would be only on condition that there be appellate authority, because that was the rule in the British Empire: they do not recognize a judicial authority from which there is no appeal. Then a whole controversy began over how that could be, because according to Jewish law there is no such thing as appealing a ruling. Anyway, that’s a different discussion.

In any case, “even that same religious court itself cannot release it until the opposing party is appeased, as Rav Achai Gaon explained in the She’iltot,” and so on. “All the more so these people, who made their ordinance properly like other communities and selected trustworthy men for themselves according to the decree with one consent. And we find that the sages gave power and strength to each and every community to make ordinances for themselves, and no other community has the authority to nullify them. For thus we learned: ‘The townspeople are permitted to stipulate concerning the measures, the prices, the wages of laborers, and to compel one another according to their stipulations.’” That is exactly the source we brought in the previous class. “And Rabbi Yitzhak said: from where do we know that property declared ownerless by a religious court is ownerless? As it is said: ‘Whoever will not come within three days, according to the counsel of the officers and elders, all his property shall be forfeited and he himself separated from the congregation of the exiles.’” That’s the verse, by the way, from which the sages learn that property declared ownerless by a religious court is ownerless. In many responsa, that verse is brought as the source for a community’s authority.

What? And that’s from Nehemiah? It’s based on Nehemiah’s authority as the representative of the Persian king? Yes, but the sages learn from here the authority of the religious court—that what the court declares ownerless is ownerless—because it says “according to the counsel of the officers and elders,” and so on. Then he brings: “Rabbi Eliezer says: I heard that a religious court may flog and punish not according to Torah law,” meaning it is even permitted to punish not according to the Torah’s regular laws in order to make fences, to make a safeguard for the Torah, and so on. “Thus you learn from here that the religious courts in every community may decree upon their community according to what they see fit for the need of the hour, and others cannot nullify their ordinances. Provided that there not be a transgression against Torah law.” Meaning, if some community does something against Torah law, then of course we are not bound by that. But if it is not against Torah law, then it is valid. “And here we did not recognize any such transgression, for no person can exempt himself from the tax and the gift due to the community, for they may impose it even on orphans.” In principle they have discretion; it can be taken even from orphans, and so on.

“And as for what you wrote, that they went to Tzippori and the decree was released for them and they brought proof from the verse”—about that he says it simply does not apply at all.

Practically speaking, there are several very interesting things in this responsum. First, you can see here—and Soloveitchik himself comments on this—he notes the degree of sharpness in the responsum. It’s actually a very calm responsum, even though this is a very problematic issue that could undermine the whole communal structure. He concludes as well: “And if this is what the public does—making an ordinance among themselves and decreeing—how can any court sever and release it? The reins are loosened! For then every person will exempt himself from the tax and from every ordinance of the religious court, for in our time the wicked can be coerced only by ban and fine.” Those are the only tools left to us. “And one who nullifies this increases lawlessness in Israel.” Lawlessness here, of course, means in general against Jewish law, not specifically in matters of modesty.

So first of all, the relatively mild language. He says—and I think quite justifiably—that this shows there is really a question here. He doesn’t agree with the community of Tzippori that undid it, but he doesn’t see it as something baseless, just some foolish thing against the sources. He understands that there is a side to their position. The people of Tiberias themselves—apparently this was a proper city with institutions and so on, they assembled and decided—this doesn’t sound like ten or twenty people. And they genuinely don’t know; they themselves think, wait a second, the whole matter—we don’t know how to do this, whether we’re allowed or not allowed, whether our ban can be undone or not undone. There is complete fog.

And then he brings them sources—from here, from Ezra the Scribe—which is a very distant source: “whoever will not come,” and so “what the court declares ownerless is ownerless,” and so on. It’s not exactly the same thing, right? There’s some expansion here, which I mentioned a bit last time. So the responsum is, first of all, calm. It seems that he isn’t angry at the other side. He sees it as an incorrect position, but there’s nothing here that’s groundless. He understands that this really is not settled. Meaning, now it has to be settled—there’s no choice—but it’s not that someone did something utterly absurd, completely explosive against Jewish law. And the people of Tiberias themselves as well—so there is exactly an indication here. An indication that in the eleventh century we are standing at a crossroads where communities are in fact being formed. Rabbi Yosef Tov Elem is first-generation French Jewry. This is the eleventh century, so French Jewry and Ashkenaz are being formed, and then North Africa and Italy, as we said before. Rabbi Yosef Tov Elem stands exactly at the junction, and now these things need to start being organized and managed, and so he begins bringing all kinds of verses. We’ll come back to those verses later.

But first, just to see the general structure of what’s happening in this responsum. He is now formulating some kind of basis for the fact that yes—there’s no choice—there has to be authority. Without it, we wouldn’t even have the basic tools that still remain. Look, by the way, whom they turn to. They turn to the greatest rabbi in the area. They don’t turn to the Exilarch; there’s no such thing. They direct the question to the halakhic sage. He is supposed to decide the matter, even though it’s a question of taxes, of relations between communities, a semi-political question. But the halakhic sage is supposed to decide here. There is no other authority. Whom would they turn to? There’s no one else. There are no secular authorities in the Jewish public. There’s the king, but before turning to him they want to make sure that it’s really permitted, that nothing against the rules is being done.

That’s interesting. The people of Tiberias are in distress. There are two people who won’t submit and this whole business is in trouble. I assume the king wants the tax from them, and they have to work something out. And they themselves—notice—they show a certain responsibility. They say: wait, let’s check. Maybe in fact we’re forbidden, maybe this really isn’t right. We need to check before we go to the king and tell him to jump on them.

Another thing you can see here—again you see the two sides. Notice: there’s one side inwardly and one side outwardly. There’s this element here, because they’re looking here for two things. First, to establish the very fact—and in the responsum itself he goes step by step here—first to establish the very fact that a community can enact ordinances for itself. To set rules, taxes, allocation, to determine who will be responsible, who will manage things. That’s the first point, and then he brings various verses.

But there’s another point here. What this community determines here is also valid with respect to the community in Tzippori. So there is also the question of how we nevertheless remain one kind of group even though every community is autonomous. Because, for example, when we impose a ban or a fine, that obligates them. They cannot nullify it—not only in the sense that we ourselves will continue to act that way. They too must treat as banned those people whom we decided are under a ban, because that is a religious obligation. They won’t have to pay taxes if I decide that the people of Tzippori should pay me taxes—I’m in Tiberias—there’s no such thing. That is certainly authority only inwardly. But that authority is immediately anchored in something that is universal, in something like a fine, a ban, things like that, to which every Jew is obligated to obey—that’s Jewish law.

So here you have exactly these two faces, this dual character: on the one hand, you need to preserve coherence outwardly, that we still remain one entity; and on the other hand, each community has a certain autonomy to manage its own affairs. And thirdly, the global aspect is what enables us to establish what applies inwardly. If this ban were not valid with respect to other communities, it would have no teeth. Everyone who doesn’t want to pay would move tomorrow morning—move temporarily—and then come back. There were already such tricks; there are responsa from the medieval authorities on this too. People who didn’t want to do something the community had decided—okay, we’re not residents of the community now, we left. After a week they come back. What are you going to do? So we tell the others: gentlemen, you’re not going anywhere. No one will accept you as members of the community. You can’t stop a person from living somewhere, but you can’t come to another place—people there won’t accept it. So there is something that is indeed a connection between places, and that gives some support when the only tools are excommunication and ban. There’s nothing else.

Some people think that to this day it’s still like that, and therefore continue using those tools today as well. But I think that’s a result of this tradition. Nice in the synagogue—and by saying “to this day,” you’re actually opening the door for me, because I have a slightly different question here. To what extent are all these mechanisms and powers really according to Jewish law? Those upright and proper and wise and discerning people who were chosen to work out the method of distribution—did their method of distribution also become some sort of halakhic ruling, so that if next year they want again to give money for some purpose, maybe not even to the king, can they suddenly decide on other methods? Or did it suddenly become something halakhic from which you can no longer retreat? And where does that stand today?

The question really is: ordinances established under halakhic authority—does the content of the ordinance itself become halakhic, or is it not halakhic and only over time turns into halakhic? Something that wasn’t halakhic at all—suddenly they come and establish it as if it were Jewish law, and then someone else can’t change it. That’s a very interesting question. I won’t really be able to answer it fully; I’ll give a few points. It really is an interesting question, because the line is problematic and disputed both among scholars and among halakhic decisors. This is not a simple issue.

On the one hand, we find a halakhic anchor for every communal ordinance. On the other hand, the ordinances of those communities did not enter the Shulchan Arukh. The Shulchan Arukh is a corpus addressed to the public at large. Say the Shulchan Arukh as a representative example—or if you prefer, the Tur, Maimonides, doesn’t matter. It’s some canonical halakhic text that is not a community ordinance. It was created in some place by a person who lived in some place, but from our standpoint it is something that obligates everyone—again, within the limits of halakhic disputes and so on—but it obligates the public as a whole. The question is which of these local things done in different places find their way into the Shulchan Arukh. Because the Rema, for example, as an Ashkenazi—and this is a very Ashkenazi characteristic—inserted customs of communities. “In our place the custom is such-and-such” is written in the Shulchan Arukh. So what if in your place they had such a custom? In my place they didn’t. What is that doing in the Shulchan Arukh?

The Rema perceived part of these things as something that ought to enter Jewish law, and from now on this is how taxes are divided, or this is how various things are done. Now, even the Rema would agree that if a community came and by mutual agreement decided to divide things differently, fine. Each person is free to do with his money what he wants. But still, as a default, he certainly saw this as a binding default. I wouldn’t even see it as a default. So what if in Krakow they decided to do things this way—what does that have to do with me? If I’m in trouble and don’t know what to do, then I’ll do what that community in Tiberias did: we’ll assemble, choose people, and they’ll decide what to do. Why is that even a default at all? No one claims these customs literally obligate us, but why are they even a default when we ourselves have no custom?

Soloveitchik himself, in another book—his book on interest, on Jewish law, economics, and self-image, also a very interesting book—I understand it was recently published in some somewhat more accessible version for the public. I don’t know; they said the first version was difficult. I actually enjoyed it very much, so I don’t know what everyone thought they were missing. There he points to a truly fascinating phenomenon. He shows how, in the eleventh, twelfth, and thirteenth centuries, the prohibition of interest completely lost all recognizable form—meaning, nothing remained of it. People did whatever they wanted, in one form or another. It fit Jewish law, didn’t fit Jewish law so well, but they did whatever they wanted. And they got halakhic approval for it. There are responsa about it; you can even see things in Tosafot on the Talmud. “In our place the custom is to do such-and-such”—Ashkenazim always work through customs. And naturally now they immediately look for justification. They don’t say: wait, the custom is like this but it’s against Jewish law, a custom overrides… no. Tosafot assumes that if this is the custom, then it is correct. Now we need to understand how this fits the Talmud. Sometimes it doesn’t fit, but it remains.

Now all these things—there was an entire process there, which he describes in great detail: how you deal with non-Jews, with a Jew, interest through a non-Jew to another Jew. Commerce simply could not be conducted otherwise; the constraints were very difficult. And when you are in a community of ten Jews, you also have to trade with non-Jews, and you can’t say you may not sell an animal to a non-Jew because maybe they’ll use it for idolatry or bestiality or something like that. With all due respect, in a village of five Jews you can’t conduct economic life with five people. Tosafot at the beginning of tractate Avodah Zarah talks about this, because it says there that it is forbidden to sell to non-Jews. He says: what do you mean forbidden to sell to non-Jews? You can’t live like that. This too is exactly another effect of community, of the formation of such little communities. You are no longer within a Jewish society; these laws can’t be implemented. But what can you do? It doesn’t fit the sources. So what do you do? Tosafot, in the Ashkenazi manner—Tosafot was basically the one who institutionalized the idea that custom is sacred. Meaning, what people do is correct. Afterwards we’ll find the explanations for why. But what’s interesting in all this is the question: what from all this enters the Shulchan Arukh?

And Soloveitchik shows there in the book: nothing. Nothing. An enormous halakhic literature, completely disconnected from the laws of interest as they stand in the Talmudic law—nothing. It’s unbelievable. They completely ignore it. I’m talking about decisors, not people in the communities. None of it enters the Shulchan Arukh. It was all said for its place and time, even though it involved prohibitions. It wasn’t only monetary law—interest. It went much further than tax distribution. It meant acting against Jewish law in the laws of interest. But even though all these things were apparently necessities and there was no way to act otherwise, none of it entered the Shulchan Arukh. Why? Because it really isn’t Jewish law. I don’t know—the invisible hand, I don’t know who was responsible for this—but the invisible hand made sure that all these local things remained local. And he shows it in a really beautiful way. A vast literature, which ordinarily does enter the Shulchan Arukh, but in this context—nothing. The Shulchan Arukh looks as if there was a jump from the Talmud straight to sixteenth-century Safed; the Middle Ages never existed. A very broad and detailed literature, and none of it enters. Why? Because these were local solutions, and they really won’t enter. They won’t become “Jewish law,” so to speak. There is no choice; you can’t live otherwise. But it can’t enter Jewish law, because it’s not correct; it doesn’t fit the sources.

But in the end, when a sage in our time comes with some communal, local question, there’s a good chance he’ll rely on—let’s take Rabbi Yosef Tov Elem as a precedent, for example. He may take him as a precedent, but perhaps not as binding—as a source of inspiration, not a source of authority. Besides, today in general there is such conservatism that every place you find something written down, immediately you feel obliged to do it. But all in all there is no such obligation, really. You are not obligated by communal ordinances—nothing. Although today I already see things, some kind of automatic transfer, where various ordinances of communities become Jewish laws. But there is no such thing, and you are not obligated to them. It really is a fascinating phenomenon, because it was not intentional. I don’t think there was some person who made a selection of which laws would enter and which would not. Somehow all these deviations simply didn’t find their way into halakhic literature. It remained in literature issuing local rulings. The people there needed to know what to do there, but it didn’t enter halakhic literature.

And the Rema also didn’t put it in? What? And the Rema also didn’t add it? The Rema too, in my opinion—I think he was talking mainly about the Shulchan Arukh, but in my view the Rema also didn’t include it. Because the Rema does include customs—for example customs relating to childbirth on the Sabbath, and things like that, Hanukkah candles, rice resembling wheat and barley—is that halakhic or is that some biological or botanical fact from which you can’t escape? Ah, that’s based on disputes, on interpretations, and halakhic difficulties. No—it’s also not certain that it’s really because it resembles them; there are other issues there too.

Anyway, so here we have some historical testimony—really right at the turning point—in the eleventh century, showing how this whole business is actually taking shape. You can see the hesitation; you can see that people really don’t know what to do. And somehow life in the end dictates that some authority arises from below. It is no longer appointment from above. Until then everything is appointed from above: the king is anointed by the prophet and is the son of the previous king, ideally assuming it’s the Davidic dynasty; the head of the Sanhedrin likewise. Meaning, those with ordination ordain the next ordained ones. Nothing comes from below. Suddenly now in the communities things begin to grow from below. What today we would call democracy begins. And indeed many responsa deal with this question of democracy. Maybe we’ll deal with that later a bit: how to manage the matter, what the status of majority versus minority is, how decisions are made, whether everyone has to be present. At some point representative government really begins. All the stages that happened in Greece a thousand or fifteen hundred years earlier, or something like that, happen here too. And they choose the collectors, and they choose the rabbi, and even define his role exactly, where his boundaries are. This gives a sort of beginning.

So overall, where we now stand is the attempt to find the halakhic anchor that backs up this development, which essentially comes from below. We already saw in Rabbi Yosef Tov Elem some of the sources he brought. I also mentioned them last time. Let’s go over to the page I handed out. So look—I brought several responsa of the Rashba. The Rashba is the fourteenth century, beginning of the fourteenth century, in Spain. That’s already a later period, and there things are much more crystallized.

“And every public in its own place is like the Geonim and all Israel, who enacted many ordinances for all, and they remain in force for all Israel, such as movables of orphans that by law are not encumbered, yet they enacted that one may collect from them, and many other ordinances.” He brings one example of an ordinance: movables of orphans, which are not encumbered, and nevertheless they enacted collection from them. These are ordinances binding on all Israel.

Now here a very important point comes in. The philosophical problem behind these things is how to define a public that is not all Israel. The concept of a public exists in Jewish law from very early on. You can even show in the Torah that there is such a concept, distinct from partners. Meaning, a public is not a partnership; a public is something else. I think I mentioned this once regarding Tosafot in Me’ilah or Arakhin—I don’t remember—on page 9b at the bottom. I no longer remember whether it’s Me’ilah or Arakhin. Tosafot says there, in discussing a sacrifice whose owners died—a burnt offering whose owners died, a sin offering whose owners died—Tosafot says that for a public there is no such thing. Even if the entire public dies, it is not considered a sacrifice whose owners died. Why? Because the public is now the owner. A public is not a collection of individual persons. Meaning, even if all the specific persons died, the public is still alive. A public does not die. This is a common phrase among many halakhic decisors.

That doesn’t happen with partners. If there are two partners and they both die, there is nothing. No one is the owner. It may become ownerless, or go to heirs, whatever, but there’s no such thing. So a public and partners are completely different things. By the way, this definition of the public solves a parallel problem to the one we are dealing with, thousands of years earlier, at the giving of the Torah. At the giving of the Torah, according to the sages, the public swore to accept the Torah upon itself. “Already sworn from Mount Sinai,” as the Talmud says. Our obligation in the commandments is modeled, in halakhic terms, as an oath. That is, we swore to fulfill them.

The halakhic rule is that a father’s oath does not bind his children. A father cannot swear on behalf of his children; there is no such thing. A person only obligates himself by oath. So now the question is: how are we bound by this? So what if our ancestors swore at Mount Sinai—what does that have to do with me? Why does it obligate me? In a responsum of the Rosh, he says—he isn’t talking specifically about this; he says it as a principle, and he is actually talking about a community. But later authorities use it to resolve this question. Essentially, the Rosh says that in the oath of a community, in the oath of a public, it is not dependent on the people who were present or alive at that time. It could be that the entire public has already died, and their children and children’s children are here, and it obligates them—obligates them as an oath. Meaning, if they violate it, that is “he shall not profane his word.” That is, it is a halakhic prohibition of violating an oath. Why? I didn’t swear. The halakhic rule is that only the person who swore can obligate himself. The answer is that the one who swore was the public, and the one obligated to fulfill that oath is the public. And anyone who belongs to the public is bound by that oath as if he himself had sworn.

By the way, this is what the sages mean when they say that all the souls were present there at Mount Sinai. I think that’s what they mean—not that there was some parade of souls standing there in ranks of three. The point is that the public as a collective stood there, and all Israel accepted it upon itself, and anyone who belongs to all Israel is obligated even if he himself did not stand there. That’s how we know. By the way, this also exists in civil law—in the law of every state. A certain parliament passes a certain law, and everyone can die after fifty, a hundred, two hundred years. If it hasn’t been changed, it still obligates. Why does it obligate me? What, those representatives passed it? I never appointed them. What does that have to do with me? The representatives of today didn’t deal with it; why does it obligate? It obligates because the one who is bound is the collective, not the individuals. And the collective doesn’t die. The collective is the same collective all the time.

So the Rosh serves as an anchor to solve the same problem that we are confronting in the eleventh century, but already at the giving of the Torah. What happened in the giving of the Torah? The concept of public was innovated, as distinct from partners—that is a certain abstraction regarding all Israel. But how do we find a public made up of twenty wagon drivers living in some little shtetl? Is that also a public? What is a public? It could be that they are partners, a few people organized for one purpose or another. You could call them partners. Financially they weren’t partners, but never mind. For those communal matters, perhaps they could be defined as partners. But for various things, as we’ll see later, they have to be defined as a public, not as partners.

Now a public has many things. A public needs a king, it needs a religious court, a public behaves like a public. Who represents it? With a public, it’s like a corporation—the concept of a corporation in modern legal language. You have what is called the corporate veil. Meaning, the private people are not the legal entities we are dealing with. We are speaking about some abstract collective entity. A company, some abstract collective, and the people are those who in some way make up that thing. So the question that arises, of course, is who nevertheless represents it? Because this abstract thing can’t be an angel. It has to make decisions, it has to stand by those decisions, it has to answer if those decisions are invalid. Who is that? Against whom do you raise claims? This is a hard problem that every legal system struggles with. So there have to be institutions of some sort that the members of the collective choose, and therefore institutions are essential to the concept of a public. That is, the role of institutions is to replace the private person. When you address the public, you need an address—you need someone to turn to.

There’s a book about land during the Depression in the United States: the banks are taking people’s land, and you go to the person and say to him: listen, I’ve been working here for years, you can’t take my land, I make my living from this, you’re leaving me without food. He says: listen, I don’t know, I’m not responsible for it. So who is responsible for it? The bank. Who is the bank, whom do I need to turn to? Tell me where to send the letter. To whom? I don’t know—the bank. It’s some shadowy figure like that. Wonderful descriptions. It’s an amazing book. And that is exactly the point—all the institutions.

That the police might allow a kibbutz to open a business on Sabbath morning because it’s a kibbutz—it’s in Jerusalem—because the law is against people, not against a kibbutz. A kibbutz has no religion; the kibbutz is not Jewish, so it’s not obligated to keep the Sabbath—that’s the idea. It’s not a person, it has no religion, so it isn’t obligated to keep the Sabbath. The law is against people—what is this? But in the end it’s still people. That is exactly the problem: how you nevertheless impose responsibility on people, because in the end people make the decisions, while still preserving the concept of the corporation, because without that you can’t run a modern legal system.

So this is really the concept: every public must always have institutions built in. There is no public without institutions and no institutions without a public. Therefore, at root, the problem here is not really a problem of institutions. The problem here is how to create a public—the concept of a public that is not all Israel, but many publics, each of which is itself a public and not merely a partnership. Meaning, each one receives some kind of ontological status, some kind of entity-status. This is a new creation. It is no longer just a collection of people. And then, naturally, the need for institutions arises. If I succeed in anchoring the fact that the Jewish residents of some little shtetl are also a public, then it will be much easier to say: okay, who are the representatives? The representatives of course have authority because they are the representatives of the public. That is the public; these are the people I am supposed to approach. They make the decisions and they bear the responsibility.

So that’s what he says here: “every public and public in its place is like the Geonim and all Israel.” He compares every public in its place to what? To the accepted situation that existed in Babylonia, and to all Israel. There it was obvious; there was no need to explain why there was a public and representation and authority, because it was all Israel. Here the novelty is that every public and public is considered like the Geonim and all Israel, who enacted ordinances and they bind everyone—even entered the Shulchan Arukh too. By the way, the ordinances of Babylonia really did enter the Shulchan Arukh. The Geonic ordinances—even Maimonides brings several Geonic ordinances, unlike the ordinances of every local public and public. Why? Because in that sense, it really is like all Israel. The ordinances of the public in some little shtetl will not enter the Shulchan Arukh. Why? Because the Shulchan Arukh is the Shulchan Arukh of one public, of all Israel. Not this public, that other public. The innovation is that this too is a public, but it is not all Israel. By contrast, a public that is all Israel—what it determines will also enter the Shulchan Arukh.

And that is exactly the tension here: on the one hand he wants to compare it to what existed in Babylonia and to all Israel, and on the other hand “every public and public in its place.” You can’t force us to pay taxes for you or force us in various matters. That won’t happen.

The same Rashba in the next responsum: “According to the law, with the consent of the residents of the province, whatever the majority agrees to and enacts and accepts upon themselves, we pay no attention to the words of the individual.” There is a problem there of internal conflict within the community. So who says the majority decides? How do we know the majority decides? “To incline after the majority” was said about a religious court. How do I know that in a community, in a public assembly, the majority decides? So he says that the majority of each and every city with respect to its individuals is like the Great Court with respect to all Israel. “And if they decreed, their decree stands, and whoever violates it shall be punished.” This is a serious expansion, a genuine interpretive creativity. “To incline after the majority” was not said about a public; it was said about a religious court, that’s all. There is no rule, at least originally, that one must always follow the majority.

From the eleventh century onward, this rule begins to become a little more imperialistic than it once was. Suddenly it turns into a kind of general principle of majority. So much so that in the Shulchan Arukh they already discuss—especially the Shakh—whether one must follow the majority of halakhic decisors. They didn’t sit together as a religious court. They didn’t do anything together. Why should one follow the majority of halakhic decisors? I’ll follow the one who seems right to me, or the local authority, I don’t know. Why are you projecting the law of majority, which was said about a religious court—“to incline after the majority”—onto something that has nothing to do with a religious court? Why? Because by the sixteenth, seventeenth, eighteenth centuries—the later authorities, the commentators on the Shulchan Arukh—are already several hundred years after this process. This process expanded the concept of “to incline after the majority” far beyond the boundaries of the religious court. And he claims that this is fully binding by Torah law, from the law of “to incline after the majority,” and this is a very significant interpretive expansion.

This is one of the things we talked about in the introduction at the beginning of the year: often things that develop over the generations are not necessarily rabbinic enactments. It may be that circumstances help us uncover a certain aspect that until then had not been exposed—but it is an aspect of Torah law. Until then there was no need for it, so they simply didn’t discuss whether this rule of majority also applies in collective assemblies, in state assemblies, because the king made all the decisions. What majority? The king or the Sanhedrin—there’s no other case. In the Sanhedrin there was a rule to follow the majority, and the king in any case is one person. So if everything is appointed from above, where would following the majority even arise? In what other case would you need to follow the majority? So the issue doesn’t come up. In the place where it does come up, suddenly it becomes clear that the sages find in this very verse of “to incline after the majority” a much broader principle than only in a religious court. And they claim it is Torah law.

We’ll see later—I don’t know if we’ll get to it—this is the third responsum: “For every public and public, the individuals are given over into the hand of the majority; according to them they must conduct themselves in all their affairs, and they stand to the people of their city as all Israel stands to the Great Court or to the king, whether they are present or not.” We’ll see later whether they have to be physically present or whether there can also be representative government.

In any case, I just want to skip to the end. In Terumat HaDeshen there are two responsa I brought, 282 and 281. Let’s take 281; it’s shorter. “And even though I have some reservation about this”—he means about what is in Sefer Mitzvot Gadol—“for behold, in Sefer Mitzvot Gadol, in the commandment of a vain oath, he wrote in the name of the Geonim”—by the way, this is one of the responsa on which Soloveitchik has a long chapter. Sefer Mitzvot Gadol is only one of the sources; there are a hundred sources on this issue, and he concludes that it’s not really from Sefer Mitzvot Gadol—“that one who swears not to enter into the ordinance of the community, that is considered a vain oath, like one who swears not to eat matzah or not to sit in the sukkah.” Do you hear that? Someone swears not to obey the ordinances of the community—“I’m not in the business, I’m not part of the community. What do you want from me? What, you’ll decide for me whether I’m part of you or not?” No. He says this is like swearing against a Torah prohibition. The oath does not take effect. Like someone who swears to eat leavened food on Passover or not to eat matzah. It doesn’t take effect at all, because this is a Torah-level law. That’s what he says.

“Thus we see,” says Terumat HaDeshen, “that a communal ordinance too is of Torah law.” A communal ordinance is Torah law. All these sources, which are quite creative and whose relationship to the sources is fairly loose, are understood as interpretation of Torah law. He says: this is Torah law. Now what do they…? There is an original verse here; he just says “in the name of the Geonim.” Yes, yes, he brings it in the name of the Geonim; that’s not their original source. Terumat HaDeshen is already the fifteenth century. That’s already a stage where it has become completely crystallized. In the eleventh and twelfth centuries you see them bringing and hinting at verses and sources because they need somehow to justify it; it seems dubious. The number of verses drops exponentially over the generations—you can see this clearly. Some attribute it to the character of the halakhic decisors; I don’t think that’s right. It doesn’t depend only on their character. There’s a progression here. Exactly—it’s already obvious. I can tell you this from the Geonim, from Rabbi Yosef Tov Elem, from the Rashba. It’s already clear. I don’t need to bring you verses; you don’t go back to the original source every time.

Also in the previous responsum of Terumat HaDeshen, there too he says the same thing. Again, the community made an ordinance about some matter and imposed a fine that whoever violated it, man or woman, would be fined such-and-such for charity. Very similar to what we saw with Rabbi Yosef Tov Elem. A woman who has a husband violated the ordinance, and she has nothing except for her husband. Is her husband obligated to pay for her or not? She violated the ordinance and has no money; only her husband has money. Must he pay for the violation she committed or not? Then he brings a proof from sacrifices. A woman who became obligated in a sacrifice—her husband has to pay for her. And there is a dispute among the medieval authorities what happens if she had become obligated in the sacrifice before she married him: after she marries him, if she has no money, does he have to pay or not? He says it is the same here. Why? What does this have to do with it? So again he brings that same responsum of Sefer Mitzvot Gadol at the end, in the last three lines: “Since she violated the ordinance of the community, and it is a full transgression, as stated explicitly in Sefer Mitzvot Gadol”—sorry—“since she violated the ordinance of the community, and it is a full transgression, as stated explicitly in Sefer Mitzvot Gadol, that one who swears not to enter into the ordinance of the community, this is a vain oath, like one who swears to nullify a commandment. And here too, even though they imposed fines, nevertheless they did not thereby permit violating the ordinance and merely paying the fine. Rather, if one violates it—even inadvertently—he pays the fine, so that people will be careful to fulfill it. And the fine, in any case, comes somewhat as atonement for the violator, and is somewhat like bringing a sacrifice for one’s sin,” and so on.

What is he saying? That the fine is like a sacrifice for a sin. But it’s clear—he wanted to prove here that when this… We talked about this—I mentioned it last time—there are legal conceptions, also today, liberal conceptions, according to which the law cannot dictate to us what is permitted and what is forbidden. What the law can do is impose sanctions. Meaning, if you did such-and-such, then we impose a sanction on you, and society can do that. But it cannot tell me what is allowed and what is forbidden; there I am autonomous, no one decides for me what is allowed and forbidden. There are conceptions of that sort. Here he comes to reject that. He says: don’t think that when they imposed a fine they were saying to you, no problem, do it if you want, you just have to pay a fine, but they did not determine that the act itself is a transgression. Why even raise such a possibility in order to reject it? Because he was struggling against the conception that says: what authority do you have to determine for me what is allowed and forbidden? You know what, in monetary matters I accepted it. You bring me a verse about “what the court declares ownerless is ownerless.” Fine—that was said about monetary law, not about anything else. So okay, monetary matters I understand. If you fined me, I’ll have to pay. But what—you’ll also determine for me what is allowed and forbidden? Who are you, Moses our teacher? So he says yes: don’t think it’s only a fine and if you want you can do it, they just imposed a fine. No, no—it is also forbidden. Since it is also forbidden, it really does resemble a woman who committed a transgression and brings a sacrifice for it. So he understands that this charity payment, this fine imposed on her, is like a sacrifice to atone for a transgression. And therefore he compares it to the case of a woman who became obligated in a sacrifice.

What emerges for our purposes is that after all the… Is it even forbidden to waive it? What? Forbidden even to waive it? No—he says even if done by accident, he pays the fine; and the collector could not say, okay, you forgot, all right, let it go. No, no, no—that’s a different intonation. It’s clear that from the outset one was forbidden to do it. What they established regarding the fine is that if one violated it unintentionally, he still pays the fine. If he didn’t do it unintentionally, then he’s just a criminal; it’s a transgression. He is trying to explain the status of the fine. So you might have thought perhaps it only applies where one forgot—but if he simply forgot to comply, maybe he’s such a decent person… Yes, that’s clearly written here, but I don’t think that’s his main emphasis.

In any case, for our purposes, what we have here in the medieval authorities are several sources for this matter of communal institutions and communal ordinances: “what the court declares ownerless is ownerless,” following the majority, which I mentioned last time. The Rashba in the responsa we read mentioned the Sanhedrin, the religious court, the king, all sorts of institutions that once belonged to the public of all Israel, and he transfers them to each and every community. Now each community has a king, a Sanhedrin, and everything. Who is that? The seven good men of the city. They are all of those functions. Like Rabbi Yehuda HaNasi, who suddenly became both king and head of the Sanhedrin because there wasn’t anyone else. So here too, the seven good men of the city undergo the same process. They absorb into themselves all the authorities that in the larger public had been divided. And therefore one time the Rashba himself brings proof from the king, another time from the religious court and the Sanhedrin, another time from “what the court declares ownerless is ownerless,” because he is showing that all the governmental functions that once may have been divided are now, in the community, located in the leaders of the public. And that is the authority they have.

And to conclude: what we saw here—and this is also what is accepted and entered into the Shulchan Arukh—I brought here in Yoreh De’ah 228, that responsum we saw in the name of Sefer Mitzvot Gadol, and many others bring it as well—that this is Torah law. Even though this is a fairly creative expansion of the sources, it is Torah law. That’s how the halakhic decisors understand it, even though before that there was no trace of it. Before the eleventh century no one would have dreamed of such a thing. We saw what hesitations there were there in the Tzippori and Tiberias of Limoges, right? What hesitations there were there, because it really was not self-evident from the sources.

Okay, we’ll stop here. Bless the Lord, who is blessed. Bless the Lord, who is blessed. Bless the Lord, who is blessed forever and ever. Yasher koach, thank you very much, excellent. Bless the Lord, who is blessed forever and ever. Blessed are You, Lord our God, King of the universe, by whose word all came to be. May the name of the Lord be blessed from now and forever. Blessed are You, Lord, who loves His people Israel, amen. Hear, O Israel: the Lord is our God, the Lord is one. Blessed be the name of His glorious kingdom forever and ever. And you shall love the Lord your God with all your heart and with all your soul and with all your might. And these words that I command you today shall be upon your heart. You shall teach them diligently to your children and speak of them when you sit in your house and when you walk on the way, when you lie down and when you rise. You shall bind them as a sign upon your hand, and they shall be frontlets between your eyes. And you shall write them on the doorposts of your house and on your gates.