Rabbi Michael Abraham – The Authority of Torah Sages – Yakov Shasha
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The basis of rabbinic authority in Maimonides’ approach
- Nachmanides’ objection to Maimonides and the answer of “they enacted it and they enacted it”
- The Shev Shma’tata and the problem of doubt in a dispute
- Acharonim’s resolution of Maimonides: rebellion against authority versus failure before temptation
- Nachmanides’ view: lo tasur for interpretation and tradition, not legislation
- A basic distinction: interpretation versus legislation, and the implication for Torah-level / rabbinic law
- Maimonides in the Laws of Rebels: overturning an earlier court and the substantive meaning
- Rabbinic authority after the Talmud and the issue of the Sanhedrin
- The tangle of the source of legislative authority according to Nachmanides in Kovetz Shiurim
- An alternative proposal: sages as representatives of the public, not as an external source of authority
Summary
General overview
The text tries to put the basis of rabbinic authority in order through the dispute between Maimonides and Nachmanides around the verse lo tasur and the parallel positive commandment, and it raises two central questions: where does the authority of the sages to enact ordinances and decrees come from, and how can the rule that a rabbinic-level doubt is treated leniently make sense if the authority itself draws from a Torah-level commandment. Nachmanides objects that according to Maimonides, every rabbinic prohibition effectively becomes a Torah prohibition through lo tasur, and therefore a rabbinic-level doubt should have required stringency, and he rejects the answer of “they enacted it and they enacted it.” Later authorities suggest resolving Maimonides by saying that lo tasur applies only when the violation is done out of principled rebellion against rabbinic authority, not when a person merely fails before temptation, and the discussion broadens into the distinction between interpreting the Torah and legislating, and to the tangle presented by Rabbi Elchanan Wasserman in Kovetz Shiurim, that it is hard to find a binding source for legislation without turning rabbinic law into Torah law. In the end, a conception is proposed according to which the sages act as representatives of the public, and therefore the question of authority is replaced by a question of representation, and the text concludes that even in Maimonides’ view a tension remains between the source of authority and the rule that a rabbinic-level doubt is treated leniently.
The basis of rabbinic authority in Maimonides’ approach
Maimonides states in several places that the basis of rabbinic authority is the verse lo tasur, and there is also a parallel positive commandment, and this includes the transmission of tradition and halakhah given to Moses at Sinai, the interpretation of the Torah and derash, and also ordinances, decrees, and fences, which are rabbinic laws. Maimonides describes all the areas in which the sages operate as receiving their force from this command, so the authority is both to interpret and to legislate. Nachmanides quotes from Maimonides in the Laws of Rebels a reason why one does not receive lashes for this prohibition, namely that it is “a prohibition given as a warning for a death penalty administered by a religious court,” and from this he understands that according to Maimonides this is in principle a Torah-level prohibition even with respect to violating a rabbinic prohibition.
Nachmanides’ objection to Maimonides and the answer of “they enacted it and they enacted it”
Nachmanides, in his glosses to the first root, argues that it is not reasonable that lo tasur gives force to ordinances and decrees, because then every rabbinic prohibition effectively becomes a Torah prohibition, such as someone who eats poultry with milk and thereby violates a Torah prohibition. Nachmanides objects that then a doubt regarding poultry with milk should have been treated as a Torah-level doubt requiring stringency, contrary to the rule that “a rabbinic-level doubt is treated leniently.” Nachmanides raises the possibility of resolving this through “they enacted it and they enacted it,” meaning that the sages can decree only on a certainty and not on a doubt, but he dismisses this briefly and says it cannot be said, without explaining why.
The Shev Shma’tata and the problem of doubt in a dispute
The Shev Shma’tata explains why Nachmanides did not accept the answer of “they enacted it and they enacted it,” through the case of a dispute among sages over whether poultry with milk is prohibited or permitted. The Shev Shma’tata argues that when the doubt is not in the facts but in the question of who is right in Jewish law, there is no side that said “be lenient in a doubt,” because each camp is certain of its own position and therefore does not make the prohibition or permission conditional on that kind of doubt. The Shev Shma’tata concludes that in such a case there should have been room for stringency according to the strict opinion, because one cannot attribute to it a general ruling to permit doubts about the very correctness of the enactment. The text suggests that one could argue and say that the sages established a broad rule that all their decrees apply only to certainties, or only where the law was decided, but presents this as a counter-possibility to the Shev Shma’tata’s explanation.
Acharonim’s resolution of Maimonides: rebellion against authority versus failure before temptation
Several later authorities, among them the Minchat Chinukh, suggest that Maimonides does not mean that every violation of a rabbinic prohibition is always a violation of Torah-level lo tasur. The text distinguishes between someone who violates intentionally because his impulse overcame him and someone who violates out of a principled refusal to recognize rabbinic authority. The claim is that lo tasur applies where there is frontal rebellion against the authority of the sages and denial of the obligation to heed them, and then someone who eats poultry with milk also violates the Torah prohibition of lo tasur. The text states that when a person in principle accepts rabbinic authority but stumbles in violation, he violates only a rabbinic prohibition, and therefore a rabbinic-level doubt remains lenient even according to Maimonides.
Nachmanides’ view: lo tasur for interpretation and tradition, not legislation
Nachmanides accepts lo tasur as binding with respect to the sages’ interpretation of the Torah and derash, and perhaps also with respect to transmitting halakhah given to Moses at Sinai and the oral tradition, because these are Torah-level laws that depend on accepting the words of the sages. The text explains that one who refuses to accept a halakhah given to Moses at Sinai because he does not believe the sages violates lo tasur, but here there is no difficulty of a rabbinic-level doubt because we are dealing with an actual Torah law. Nachmanides denies that lo tasur gives force to ordinances, decrees, and customs, because then the same problem would return, that every rabbinic law becomes Torah law and the laws of doubt would change.
A basic distinction: interpretation versus legislation, and the implication for Torah-level / rabbinic law
The text sharpens the point that the distinction between Torah law and rabbinic law is not chronological, since there may be rabbinic laws from the time of Moses and Torah-level innovations across the generations. The text presents two different activities of the sages: interpretation, which reveals what the Torah requires and therefore yields a Torah-level law, as opposed to legislation, which creates a new law not derived from the verse and therefore yields a rabbinic law. The text gives as an example a derash such as “You shall fear the Lord your God” including Torah scholars, which is presented as interpretation and therefore its source of force is the verse, whereas the prohibition of poultry with milk is presented as a decree that does not emerge from a verse but from reasoning and protective boundaries, and is therefore legislation. The text stresses that poultry with milk “has no source in the Torah” in the sense of being interpretively derived from the verse, even if its purpose is to prevent stumbling into a Torah prohibition.
Maimonides in the Laws of Rebels: overturning an earlier court and the substantive meaning
Maimonides, in chapter 2 of the Laws of Rebels, resolves a contradiction between a Talmudic passage requiring a court greater in wisdom and number in order to overturn an earlier court, and a passage saying that anything established by formal count can be permitted by another formal count, by distinguishing between rabbinic law and Torah law. Maimonides rules that in rabbinic law, repealing an earlier ordinance requires a court greater in wisdom and number, whereas in Torah law a court of equal standing can disagree and change the ruling without that condition. The text explains that this difference reflects not only “greater strengthening of their words than of Torah law,” but also a substantive difference: in interpretation, one is not confronting the authority of the earlier court, because obedience is to the will of God as interpreted, whereas in legislation, obedience is to the legislative authority of the court, and therefore repeal requires superior authority. The text integrates here the principle “Yiftach in his generation is like Samuel in his generation” and “you have only the court of your own days” as the basis for the idea that in interpretation, the deciding body is the current court.
Rabbinic authority after the Talmud and the issue of the Sanhedrin
The text says that simply speaking, lo tasur refers to the Sanhedrin, and notes that Sefer HaChinukh says it applies to all the sages of the generations, though that is a lone view. The text presents a position common among halakhic decisors that full binding authority exists through the Talmud, including it, and attributes this to the Rosh in chapter 4 of tractate Sanhedrin and to the Kesef Mishneh in chapter 2 of the Laws of Rebels, with the claim that the Talmud has a status “like the Sanhedrin” because all the Jewish people accepted it. The text raises the question why people today do not argue with the Talmud, and answers that this is because of its status, and cites Rabbi Kook in LeNevuchei HaDor as suggesting that the rule itself might perhaps be canceled when there is a Sanhedrin. The text also raises the possibility that the logic of “acceptance” could extend to later decisors or to the Shulchan Arukh if such acceptance exists.
The tangle of the source of legislative authority according to Nachmanides in Kovetz Shiurim
Rabbi Elchanan Wasserman, in Kuntres Divrei Soferim, argues that the question “what is the source of the sages’ authority to legislate” cannot be answered within Nachmanides’ framework. Rabbi Elchanan argues that if a source from the Torah is found for legislative authority, then the very same objection Nachmanides raised against Maimonides will return and turn a rabbinic-level doubt into a Torah-level doubt requiring stringency, and therefore it is impossible to establish a verse as the source. Rabbi Elchanan adds that reasoning also does not solve it, because “why do I need a verse? It is logical” indicates that reasoning is on the level of Torah law, and then again doubt would require stringency. The text notes that Rabbi Elchanan several times proposes the explanation that “the view of the Omnipresent agreed with their view,” but points out that this too seems like reasoning, so the difficulty remains.
An alternative proposal: sages as representatives of the public, not as an external source of authority
The text proposes a framework in which the question of authority is replaced, because the sages do not stand over against the public as commanders, but speak in its name as its representatives. According to this proposal, when the authorized institution establishes an ordinance, it is described as a decision of the public itself, and therefore there is no need for the question “who authorized you?” or for an external source of authority. The text compares this logic to the conception of authority in a parliament under democratic government, where the obligation does not stem from “authority” as a separate concept but from representation, and emphasizes that the comparison is at the level of logic and not an equation of laws such as lo tasur. The text concludes that even after the later authorities’ resolution of Maimonides, a parallel problem remains: if not every rabbinic violation is a violation of lo tasur, then the question returns to what obligates obedience in the first place, and therefore a tension remains between the two questions—the source of authority and the rule that a rabbinic-level doubt is treated leniently—and the full solution remains open.
Full Transcript
[Rabbi Michael Abraham] I want to make some order out of this issue, try to make some order out of it. Can you hear now? I hope I… okay. I want to make some order out of the topic of rabbinic authority, which is a bit worn out, as I said earlier, but I’m afraid it’s still worth putting some order into it, and maybe a few new things will even come up along the way. Maimonides writes in a number of places that the basis of rabbinic authority is the verse in the Torah, “Do not deviate from anything they instruct you,” that’s the prohibition, and there is also a parallel positive commandment. And Maimonides explains that this “do not deviate” teaches us, basically, about the force of the words of the sages on several planes: both on the plane of interpreting the Torah and the derashot. Okay, can you hear better now? Yes. Excellent. In the meantime I was shouting, let’s see if that continues. Maimonides says in several places that the verses of “do not deviate” and the parallel positive commandment speak about all the areas in which the sages are involved, and that includes the transmission of tradition, halakhah given to Moses at Sinai and the Torah, the interpretation of the Torah, derash, which you could say is one branch of interpretation, although in Maimonides’ approach it’s not entirely clear that this is so, and ordinances, decrees, fences, everything that is traditionally called rabbinic law. All of these things get their force from “do not deviate.” That is Maimonides’ view. Nachmanides, in his glosses to the first root, comments on these statements of Maimonides, and he says that this is not reasonable. It’s not reasonable because according to Maimonides, what should come out is that every rabbinic law is really a Torah law. Because if I eat poultry with milk, which was prohibited by the sages and is a rabbinic prohibition, I violate “do not deviate,” and if so I have violated a Torah prohibition. So for example, if I am in doubt whether there is poultry with milk here or not, I should have to be stringent, because this is a Torah-level doubt, and a Torah-level doubt is treated stringently. So Nachmanides says: how does Maimonides sustain the rule that a rabbinic-level doubt is treated leniently? According to his view, every doubt in a rabbinic prohibition should have to be treated stringently, because it is a Torah-level doubt. The truth is that Nachmanides himself raises a possible resolution and rejects it without explaining why. He says what is called “they enacted it and they enacted it.” Meaning, the sages established that it is prohibited to eat poultry with milk, so of course they can also establish that if I am in doubt whether it is poultry with milk or not, then I can be lenient. After all, they could also have chosen not to prohibit it at all. So if they prohibited it, they certainly have the authority to prohibit it in a qualified way, to prohibit it only when I know for certain that there is poultry with milk here, and not in cases of doubt. Nachmanides says there on the spot: and that is not reasonable to say, one cannot say that. He doesn’t explain why, but he rejects it, and so he remains with a difficulty on Maimonides. In Shev Shma’tata it is written—and other later authorities as well do leave this answer in place, sorry, a number of later authorities do bring this answer on behalf of Maimonides. The Shev Shma’tata explains why Nachmanides still didn’t like this answer in Maimonides, what didn’t seem right to him about it. So the Shev Shma’tata says: what happens when there is a dispute among sages? Among halakhic decisors, or among amoraim, let’s say for the sake of discussion. There is a dispute in a rabbinic law whether something is permitted or prohibited. In Rabbi Yosei’s place they ate poultry with milk. So there is a dispute whether poultry with milk is prohibited or permitted. So now the question is what to do in that situation. In that situation, after all, there are two sages or two camps of sages. One camp says that poultry with milk is definitely prohibited. Another camp says that poultry with milk is definitely permitted. I am in doubt because I don’t know which view Jewish law follows. But neither of these two camps will tell me that I may be lenient, right? Because I know there is poultry with milk here. My doubt comes from the question of which of the two camps is correct, but neither of those two camps is really telling me to be lenient here. Therefore, in such a situation we really should have to be stringent, because according to one view, poultry with milk is prohibited, and if I eat poultry with milk I will violate Torah-level “do not deviate.” According to the other view it is permitted, so it is permitted. So this is a Torah-level doubt and we should have to be stringent. And here you cannot say that those who said poultry with milk is prohibited also told me that if you are in doubt, be lenient, because the doubt is about the very question whether this thing is prohibited or not, whether they are correct. It’s not a doubt in the facts; it’s a doubt in the question whether they are right or not, and about that they said nothing. That is the Shev Shma’tata’s claim. Of course, that too can be debated. One could say that the sages established in general that whenever there is some dispute, or whenever there is some doubt, then in general—not specifically about poultry with milk, but in general—we say that all our decrees were stated only with regard to certainty and not to doubt, or only where the matter was agreed upon or decided as Jewish law and not where it remains disputed. But that is how the Shev Shma’tata explains Nachmanides. So what remains? How do we really resolve Maimonides’ view? The approach suggested by several later authorities—and it seems to me very reasonable to understand Maimonides this way—is that Maimonides does not mean that everyone who violates a rabbinic prohibition has violated a Torah prohibition. Although Nachmanides himself already comments that Maimonides writes in the Laws of Rebels: why does one not receive lashes for this prohibition? He says: because it is a prohibition given as a warning for a death penalty administered by a religious court. Why don’t we give lashes for the prohibition of “do not deviate,” for the prohibition involved when someone eats poultry with milk? Why doesn’t he get lashes? Because it is a prohibition given as a warning for a death penalty administered by a religious court. What does that mean? If there is a prohibition such that in some situation one can be punished for it with death, a death penalty by a religious court, then even in other situations where I’m not liable for death, there are no lashes. That is the rule in Jewish law. We can discuss why that is, but that is the rule. A prohibition given as a warning for a death penalty administered by a religious court is not punishable by lashes. So from here, says Nachmanides, you see that in principle, according to Maimonides, this really is a Torah prohibition. In principle one should have received lashes for it, were it not for the rule that a prohibition given as a warning for a death penalty administered by a religious court is not punishable by lashes. But it is a Torah prohibition; there is just a rule that says you don’t get lashes for this particular prohibition. That is basically Nachmanides’ claim, and from here he proves that Maimonides’ position is that anyone who violates a rabbinic prohibition really does violate the prohibition of “do not deviate,” a Torah prohibition, and then its doubt should have had to be treated stringently, and all the difficulty he raised above follows. But several later authorities write that this is not an accurate description of what Maimonides meant, because Maimonides really wants to say that when a person violates a rabbinic prohibition—say he eats poultry with milk—he might do that because his impulse overcame him. I’m not talking about an inadvertent violation; I’m talking about someone who violates intentionally. His impulse overcame him. That happens with Torah prohibitions too. Sometimes a person eats pork because his impulse overcame him. I’m not talking about coercion, of course. I’m talking about someone whose evil inclination overcame him; he either didn’t manage, or didn’t try hard enough, to deal with it, and he failed. There is a way to violate either a Torah prohibition or a rabbinic prohibition out of a principled refusal to recognize authority. Say, with a Torah prohibition, there are people who violate a Torah prohibition not because their impulse overcame them but because they don’t accept the binding force of Torah prohibitions—what today would be called non-religious people, who don’t think Jewish law is binding. Okay? So those are two ways of violating Torah prohibitions. The same is true with rabbinic prohibitions. You can violate them because your impulse overcame you. That is intentional, not inadvertent, not coerced—intentional. You should have tried harder; you didn’t try hard enough; you violated the prohibition. That is an intentional violation. But it is also possible to violate rabbinic prohibitions because I do not in principle recognize the authority of the sages. I’m not willing to accept rabbinic prohibitions; I see no force in rabbinic prohibitions. What is the difference between these two modes? With Torah law too, it’s an interesting question what the difference is; the first is a kind of apostate. But with rabbinic prohibitions the difference is that if you violate them out of a principled refusal to recognize the authority of the sages, then you violate “do not deviate,” because in essence you are going against the command that tells you that the words of the sages have force, that one must obey them. And you are saying frontally: I disagree with that, it’s not true, one does not have to obey them. So you violated “do not deviate.” And this is what Maimonides means here: if you ate poultry with milk, you violated the Torah prohibition of “do not deviate.” Why? Because you deviated, you rebelled against rabbinic authority, you did not accept upon yourself the obligation to submit to the authority of the sages. But if you ate poultry with milk because you did not stand up to your impulse, your impulse overcame you, then in that case you do in principle accept the authority of the sages. True, you fell, you failed, the evil inclination overcame you, but one cannot say that you violated “do not deviate”; you are not rebelling against rabbinic authority. You fell—that is not a principled rejection of their authority. In that case you did not violate “do not deviate,” only the rabbinic prohibition itself. And therefore, those later authorities say—the Minchat Chinukh and several other later authorities, and there were earlier ones as well—that if you are in doubt, meaning if you violate the rabbinic prohibition of poultry with milk because of impulse, then that is only a rabbinic prohibition; it is not a Torah prohibition, you did not violate “do not deviate,” so naturally its doubt is treated leniently. True, if you do not in principle accept the authority of the sages, then apparently its doubt should have had to be treated stringently, but of course if you do not in principle accept the authority of the sages then that is… well, that is a hypothetical statement. So in practice, a rabbinic-level doubt is treated leniently because in an ordinary violation of a rabbinic prohibition, even according to Maimonides, you are not violating Torah-level “do not deviate.”
[Speaker C] Not accepting, in principle, the authority of the sages—does that mean sweeping rejection of all of them, or does it mean I don’t accept that, say, I don’t know, the Shulchan Arukh and Maimonides are binding on me?
[Rabbi Michael Abraham] Theoretically—no, that you can also do within Jewish law, that’s systematic at least. I’m not… I’m talking about someone who does not in principle accept the authority of the sages. Now here too, look, one could say: someone is not in principle willing to accept the authority of the sages to prohibit poultry with milk for him.
[Speaker D] Meaning—
[Rabbi Michael Abraham] He’s not saying about that—no, one second—not that he does not in principle accept all rabbinic authority, but that he does not accept this specific decree of poultry with milk, like someone who says there is one thing from the Torah that he is not willing to do. Theoretically there could be such a person, and one can discuss what his status is, but you understand that in the usual case, if someone doesn’t accept rabbinic authority, he probably doesn’t accept it at all. And especially regarding poultry with milk, so for the sake of simplicity let’s talk about that case. Yes.
[Speaker D] If you say he is unwilling to accept the authority of the sages, then he doesn’t accept the Oral Torah?
[Rabbi Michael Abraham] It could be—meaning, no—it could be that he accepts the authority, like Nachmanides for example. Because Nachmanides does violate this “do not deviate,” since Nachmanides accepts the authority of the sages only to interpret the Torah and expound the Torah, but not for decrees and fences and customs. Enactments, decrees, and safeguards. To accept interpretation—heaven forbid, sorry, of course that’s only to sharpen the point—Nachmanides does accept it, but in another moment I’ll get to that and then maybe it will become clearer. So if I just finish the line of thought, or finish this part of the line of thought in Maimonides, then I’d say as follows. Basically, even if I say that—not even if I say it, Maimonides says it—that every rabbinic prohibition is in fact rooted in “do not deviate,” that does not mean that every time I violate a rabbinic prohibition I have violated a Torah prohibition. Because then indeed a doubt about it would have to be ruled stringently, which is what Nachmanides asked against Maimonides. Rather, only if I do not accept, in principle, the authority of the sages, then I have violated “do not deviate,” because the Torah said they have authority and I did not accept that, so I violated a Torah prohibition, because I violated exactly what the Torah told me. If I accept the authority of the sages in principle, but I ate poultry with milk because of evil inclination, in that case it is only a rabbinic doubt, and the doubt is ruled leniently. Okay? That is Maimonides’ view. We’ll come back to it, but for now let’s leave it there. Let’s move to the other side of the equation—Nachmanides. So what does Nachmanides say? Nachmanides says it is not reasonable that the prohibition of “do not deviate” is what gives force to rabbinic laws such as decrees or enactments. Why not? Because otherwise it would turn every rabbinic prohibition into a Torah prohibition, right? That’s what he asked against Maimonides. So then what does? Nachmanides also accepts “do not deviate,” only he claims that “do not deviate” gives force only to the sages’ interpretation of the Torah or to exposition. When they expound the Torah or interpret the Torah, and perhaps also a law given to Moses at Sinai, where they transmit to us the oral tradition. Meaning, all Torah-level laws that depend on the sages. Right? There are Torah-level laws that depend on the sages. The sages orally transmit to us a law given to Moses at Sinai; it isn’t written anywhere; they say, this is a law given to Moses at Sinai. Now if someone does not accept that—he doesn’t believe them, says the Holy One, blessed be He, didn’t say this—then he violates “do not deviate,” because the sages said this is a law given to Moses at Sinai, and I don’t accept it, so I violated “do not deviate.” Here there is no problem of the kind Nachmanides raised against Maimonides, right? Since if a law given to Moses at Sinai is a Torah law, then yes, if it depends on “do not deviate” I should be stringent in cases of doubt—but there’s no problem, because it really is a Torah law, so yes, of course one must be stringent in cases of doubt. It’s just that this is a Torah law of a kind that depends on the words of the sages. If I do not accept the words of the sages, then I won’t know that oral tradition, and then I won’t know that law. Okay? So in essence Nachmanides accepts “do not deviate” as the basis for Torah laws that are grounded in the sages, but not for rabbinic laws like enactments, decrees, customs, safeguards, and so on. What basically—I’ll sharpen this a bit more—the sages actually have two types of authority. In essence they engage in two types of activity: what’s commonly called rabbinic law and Torah law, in the standard division—which Maimonides apparently doesn’t really accept, but in the standard division. What are the two types of activity? What is the difference between a rabbinic law and a Torah law? Many times people think the difference is chronological. That is, a Torah law is what was given at Sinai, and a rabbinic law is what was created in later periods by the sages. But that’s not true. There can be rabbinic laws that already date back to Mount Sinai. There are rabbinic laws instituted by Moses our teacher, like the public Torah reading, or asking—meaning studying the laws of the festival before the festival. And there are Torah laws that were newly established over the generations and did not come down from Sinai. So what is the difference, if it’s not chronological? The difference is the question of what kind of activity the sages are engaged in. The sages can interpret, and they can legislate. If the sages interpret, the result is a Torah law. If the sages legislate, the result is a rabbinic law. For example, if the sages say, “You shall fear the Lord your God” includes Torah scholars—in this case it’s an exposition, but for now we’ll treat exposition like interpretation—then from our point of view this is not an enactment. The sages did not legislate the obligation to fear Torah scholars; the sages learned it from a verse. So the sages here are not serving as the source of validity for this law; rather, the sages are simply revealing to us that this is what is written in the verse. Why do I have to do it? Because the Holy One, blessed be He, commanded it to me in the verse. How do I know it is in the verse? From the sages. But after the sages said it, they only revealed to me that it follows from the verse itself. So the source of validity is the verse, and therefore here the sages are acting as interpreters. But if the sages prohibit poultry with milk, they do not derive it from a verse. This is legislation by the sages; it is a new law; it does not come from a verse; they are not expounding it; they are not interpreting verses. It’s a new law, lest one come to stumble in meat and milk. What is it based on? Their own reasoning. They decided that this is the proper way to act. So they prohibit it; they legislate a new law. The sages legislate. The moment they legislate, the result is rabbinic law. Meaning, the sages can engage in interpretation or in legislation. If they engage in interpretation, the result is Torah law. If they engage in legislation, the result is rabbinic law. And it doesn’t matter whether those sages are Moses our teacher at the time of Mount Sinai, or whether those sages are sages in our own day. In principle it makes no difference at all. The question is what they did, not who did it. If it is legislation, the result is rabbinic law; if it is interpretation, it is Torah law. Therefore a sage could come today—say there were some ordained sage in the Sanhedrin, let’s say we had a Sanhedrin today, okay? So the Sanhedrin now determines that some particular thing is prohibited labor on the Sabbath, even though from the days of Moses our teacher until now people treated it as permitted—or maybe it didn’t exist at all, because it’s electricity or some new thing that came into being—it makes no difference. It would be Torah law even though it was created today. There can be a Torah law even if it was created today. Why? Because the sages who established it did not establish it as new legislation but as an interpretation of what is written in the Torah. Okay? So since that is the case, the result is Torah law. By contrast, when the sages legislate a new law, like poultry with milk—the example I gave before—it also doesn’t matter if it was Moses our teacher doing it. There is a bit of a dispute among the medieval authorities (Rishonim), but the simple understanding is that if Moses our teacher does it, that too is rabbinic law. Why? Because Moses is not saying this is what the Torah says; rather, he is legislating a new law. So maybe he has “do not deviate,” or maybe there is another source that gives him the power to do it, but the result is rabbinic law. I’ll give an anecdote that illustrates this distinction. Does it have to be based on something in the Torah? No, absolutely not, by no means. Why not? I told you, it has to be based on—no, no, the source of their authority, yes, but not the law they make. Poultry with milk is not based on anything in the Torah. What about Hanukkah candles? Yes, poultry with milk is not a safeguard, like they did with meat and milk? Yes, correct. So that is new legislation; it doesn’t matter—it’s a fence, like they did with meat and milk. Right. So that is new legislation; it doesn’t matter—it’s a fence, a rabbinic decree imposed on the public in order to build a fence so that people won’t violate a Torah prohibition, right? Correct. Every decree is a fence; it is a rabbinic decree. It is a new law. If it is something that tells me an extension of the verse, that is Torah law, even though the sages made that extension. But if it is a new decree or enactment or some law whose basis is the sages—not something they derive from the verse—then that is legislation, not interpretation. And when it is legislation, the result is rabbinic law. Okay? It’s not based on anything. The fence is there so you won’t come to stumble in “you shall not boil a kid in its mother’s milk,” but it does not come out of the verse of “you shall not boil a kid in its mother’s milk.” And Hanukkah is not even that. Hanukkah and Purim don’t come to fence anything off; they are a new enactment, and the sages are also allowed to do that. I’ll perhaps bring an illustration that shows the difference between these two things. Maimonides writes in Laws of Rebels—there is really a contradiction—it starts with a contradiction between two passages. There is one passage that says that a court can nullify the words of an earlier court—it cannot nullify the words of an earlier court unless it is greater than it in wisdom and in number. There is another passage that says that anything established by vote, another vote can permit. Meaning, if there is a court that wants to nullify the words of an earlier court, it can, and there are no qualifications mentioned there that it has to be greater in wisdom and in number and all kinds of things like that. So the medieval authorities (Rishonim) offered several ways to explain the contradiction between the passages. Maimonides’ position is—and other medieval authorities say this too—but Maimonides’ position in Laws of Rebels, chapter 2, is that the first passage I mentioned deals with rabbinic laws, and the second passage deals with Torah laws. Meaning, rabbinic laws established in one Sanhedrin: a later Sanhedrin can revoke them only if it is greater in wisdom and in number. A Sanhedrin that is not greater in wisdom and in number than the first will not be able to revoke them. Who determines that? They do. The second Sanhedrin determines whether it is sufficiently greater in wisdom and in number; there is no one else to determine it. It’s like the Supreme Court determining its own powers. By the way, that’s not criticism; there’s nothing to do about it. I mean, there is no one else to do it apart from the framework set by the Knesset, but that is the structure of adjudication. Yes, but who does this interpretive legislation? This interpretive legislation is done by the court. So it’s the same thing. So Maimonides says that in rabbinic law, a court that revokes the words of an earlier court—again, we are talking about the Great Court—must be greater in wisdom and in number. How can it be greater in number? After all, it’s always seventy, seventy-one. So what does greater in number mean? Maimonides himself has difficulty with that, and he says that the sages attached to the court also count toward that number; there have to be many sages. By contrast, in Torah law, Maimonides says, any court—that is, any Sanhedrin—can revoke a determination of an earlier court; it does not have to be greater in wisdom and in number. At first glance it seems that the difference between these two things is part of those same laws in which the sages strengthened their own words more than Torah law. Sometimes the sages, in order to strengthen rabbinic laws, put up higher fences than for Torah laws. So in this case, in order to revoke a rabbinic law you need a court greater in wisdom and in number; in order to revoke a Torah law, any court can do it—any court of the same status, the Great Court against the Great Court, a court of the same halakhic standing. But it seems to me there is something beyond that here. It’s not only a matter of strengthening rabbinic law more than Torah law; rather, it relates to what I said earlier, and that is why I bring it here. When a court comes to revoke a Torah law of the previous court, the later court is not arguing with the authority of the earlier court, because my obeying the earlier court is not because of the authority of the earlier court. Suppose the earlier court determined that one must fear Torah scholars: “You shall fear the Lord your God” includes Torah scholars. Now a later court comes and says, no, I think that in this verse it comes to include professors. Fine? That’s how it seems to them. What? Yes. So in Torah law, when the first court said that one must fear Torah scholars, why in the end am I supposed to do it? Because that is what is written in the verse, right? The sages revealed to me that this is what is written in the verse, and they have the authority to interpret the Torah, so they revealed to me that this is what is written in the verse. But when I observe it, I am not fulfilling their will; I am fulfilling God’s will, unlike legislation, right? Now a later court comes and says, no, that is not what is written in the verse; the verse says one must fear professors and not Torah scholars. Okay? So against whom is it coming out? It is not coming out against the authority of the earlier court, because the law it is revoking is not a law I observe because of the first court. The first court only revealed to me that this is what is written in the Torah; the later court says, not true, we disagree—that is not what is written in the Torah; something else is written there. That they can do, so long as they too are the Great Court. They do not have to be greater in wisdom and in number, because they are not contending with the authority of the first court. But in rabbinic law, when the first court determined that it is forbidden to eat poultry with milk, then why do I not eat poultry with milk now? Because the first court decided not to eat poultry with milk. It did not reveal to me that this is written in the Torah—it is not written in the Torah—but the Great Court determined it, and it has authority, it can determine. Now when the later court wants to change that, it is acting against the authority of the first court. It says: don’t listen to them; listen to me. So for that you need to be greater in wisdom and in number, so that your authority will indeed be greater than the authority of the previous court. Meaning, this distinction in Maimonides does not stem only from the fact that the sages wanted to strengthen rabbinic law more than Torah law. There is also a substantive issue here: when we are dealing with legislation, we observe that law because the sages have authority to legislate. And if they said it, it is binding. Therefore when another court revokes it, saying don’t listen to them, listen to me, in order to contend with them you have to be greater than they are in wisdom and in number. But if you are dealing with interpretation, then the law I observe is not because a court said so, but because the Holy One, blessed be He, said so. So the second court says to me: no, the Holy One, blessed be He, did not say that; He said something else. So now Jephthah in his generation is like Samuel in his generation. Why? But why the second one? What? Because it is the court of your own days. You have only the court of your own days. Jephthah in his generation is like Samuel in his generation. And the one who determines what the Holy One, blessed be He, says to us is our court, not the court that existed sometime in the past. One can argue about that, but that is the rule. Now I’m saying that when Maimonides makes this distinction, it seems to me that underlying this distinction is not only some desire to strengthen rabbinic law, but a reflection of what I said earlier. That is why I brought this example. It reflects the fact that when the sages interpret and when the sages legislate, these are two different kinds of activity. When the sages interpret, they are essentially exposing to me laws written in the Torah. When I observe those laws, I am obeying the Torah. When the sages interpret—sorry, legislate—I am observing laws that the sages decided I must do. I am not obeying the Torah; I am obeying the sages. Sorry? But also from the Torah, what they interpret. Right, and that is our topic. Now I’m getting to where they get the authority to interpret or legislate. But I’m saying that on the conceptual level, this is what I want to say: that the sages—just wait one second—the sages do two kinds of activity: interpretation and legislation. Nachmanides—now I return to Nachmanides’ view—Nachmanides says that for interpretation, the sages have force by virtue of “do not deviate”; for legislation, not so. Torah laws are based on “do not deviate.” Why do we need “do not deviate” at all? Because one can interpret the verse in different ways. So if the Great Court interprets the verse, that is binding; I cannot interpret it differently. But in legislation? Legislation, no. Legislation does not come out of “do not deviate.” That is what Nachmanides says. Because otherwise—that is his difficulty with Maimonides—if legislation also came out of “do not deviate,” then it would turn out that all rabbinic laws are really Torah laws of “do not deviate,” and then everything would have to be ruled stringently, with all the difficulties he raised against Maimonides. In rabbinic law there are also two kinds. There is rabbinic law that is only a decree or enactment, and there is law like Hanukkah candles, which is not an enactment as a decree but an enactment in itself that they simply wanted. No, that’s an enactment. What he wants to say is: that one is an enactment and that one is a decree. Okay, but what difference does it make whether I can revoke a decree and when I can revoke a law? What difference does it make? Maybe—but you can offer reasoning for many things. First of all, I don’t see the reasoning, and second, I don’t see why to say such reasoning. What is the difference? In both cases this law comes out of the sages’ authority. True, one time the goal is to institute a new enactment, not a decree or something else, not a safeguard; and in the second case it is a safeguard so that I won’t come to a Torah prohibition. But either way, the law established by the sages comes from them, not from the Torah. The Torah commanded to make a fence around the Torah. “Make a fence around the Torah”—we’ll get to that shortly. You’re already taking me to the next question. What is the authority of the sages to legislate according to Nachmanides? And then you say maybe there will be a difference between those two categories—a safeguard, to legislate, all that. From where is it derived? I said, you’re getting ahead of me, I understand, but you’re dealing with the next stage. I still haven’t reached the question of where the sages get authority to legislate. When I get there, you can suggest: maybe the authority to enact ordinances is from there, and the authority to legislate decrees is from here. We’ll still get there. A clarifying question: why is the Rabbi talking about a court when we don’t exactly see in the Talmud—at least not in the courts we know among the sages here and so on? Court here means the Sanhedrin. What? When one says court in this context, it means the Sanhedrin. Why? Because the determination of law for all generations was the Sanhedrin. Certainly, only the Sanhedrin. And where was there a Sanhedrin in the Talmud? Was there a Sanhedrin in Babylonia? No. Why does there have to be a Sanhedrin in Babylonia? Laws that are determined—laws that are determined that bind the whole public—are only laws established in the Sanhedrin. As for the Talmud, there is a special innovation where some later authorities, perhaps a bit among the medieval authorities too but mainly among the later authorities, say that the Talmud also has some status like a Sanhedrin because the Jewish people accepted it upon themselves, something like that, and therefore it too has status. But “do not deviate,” in the plain sense, applies only to the Sanhedrin. Sefer HaChinukh says it applies to all the sages of the generations, but that is a lone view, it is not… Therefore in “do not deviate”—but I’m not getting into that. The determination of Jewish law as we know it—you open the Shulchan Arukh. You assume that what is written in the Shulchan Arukh is indeed binding law. An interesting law, but I’m not sure I agree with it. Wait—it doesn’t bind me. Fine. If it binds you, ask yourself why it binds you; I’m not sure I agree with that. I said I’m talking about the list of laws, the laws fixed in the Talmud. Okay. The Amoraim established, the Tannaim established. What court? What Sanhedrin? So I said that the Talmud has status like a Sanhedrin. So if it was established in the Talmud, then that means until the Talmud—until the end of the Talmud. Yes. That is what the Rosh writes in Sanhedrin, chapter 4; that is what Kesef Mishneh writes in chapter 2 of Laws of Rebels. Until the Talmud, and that’s it. After the Talmud, one can already begin discussing what authorities exist and where they come from. It is accepted among halakhic decisors that in practice full authority exists only up to and including the Talmud. That’s it. Because the Talmud had status like a Sanhedrin even though there was no Sanhedrin. So today too, of course. The Sanhedrin has authority, but there is no Sanhedrin. No, no, understood. I’m saying that even in the period of the Amoraim there was no Sanhedrin. Correct, so they determined that the Talmud has status like a Sanhedrin. Good question. There are discussions about exactly why—because of the agreement of the sages of Israel; perhaps it also has such a status. Fine, not important. All the Jewish law we know is based on the Talmud, and a large portion of the laws. You need a court, and this is from that type of rabbinic determination. Yes. It needs a court greater than them in wisdom and in number. Why don’t we disagree with the Talmud today? What? Why don’t we disagree with the Talmud today? Because the Talmud has status like a Sanhedrin, and one cannot revoke the law established there. Rabbi Kook writes in L’Nevukhei HaDor, I think—he writes there that this very law might perhaps be revocable once there is a Sanhedrin. Meaning, the law that one needs a Sanhedrin in order to revoke. Fine, but that doesn’t matter; right now we have no Sanhedrin, and that law was established in the Talmud, and indeed we do not disagree with what is in the Talmud. Yes. For example, the law of meat and milk or fish and milk—they were established as they were not written—fish and milk. Fish and milk is permitted by Torah law. Correct. What they prohibited, they prohibited; what they permitted, they permitted. Yes. Obviously, what they did not prohibit, they did not prohibit. Okay, so let’s get back to our line of thought. I just want to focus the discussion because we’ve gotten a bit scattered. In practice, we now have two views among the medieval authorities. Maimonides’ view is that from “do not deviate”—when I say “do not deviate,” I mean both the prohibition and the positive commandment in the simple sense—from “do not deviate” comes the sages’ authority both to legislate and to interpret. That is Maimonides’ view. Nachmanides’ view is that from “do not deviate” comes only the authority to interpret. The authority to legislate does not come from there. Why? Because the authority to legislate is authority to produce rabbinic laws. If it came from “do not deviate,” that could not be, because it would turn rabbinic laws into Torah laws, right? So Nachmanides says it does not come from there. Now the question arises: so where does it come from? A law given to Moses at Sinai in this dispute? I said, in the plain sense a law given to Moses at Sinai is not legislation; it is interpretation—or not even interpretation, rather transmission of the tradition. So the sages bring me the word of God, and so it is Torah-level; it does not belong to legislation. It has the same status as interpretation, and it isn’t even interpretation. What about the prohibition of legumes that we observe today? You’re pouring salt on my wounds. You’re pouring salt on my wounds. Well? If the Rabbi says this is rabbinic, and asks how the sages can do it, then from where do we know it? Excellent question. Before you ask me where the prohibition of legumes comes from, ask me whether such a thing even exists. There is some questionable custom—I’m speaking with understatement. That’s it, I do not know of a prohibition of legumes. I don’t know of such a prohibition. Fine. As a practical ruling, ask Rabbi Pishon, I don’t know; I’m stating my opinion. Fine, let’s remember—let’s write it down. Okay. So now the question arises: where exactly does the sages’ authority come from, according to Nachmanides, to legislate? Now this is an interesting question. Why? Because understand: there is basically a short blanket here that cannot cover the whole body; either the legs are exposed or the head is exposed. Why? This is how Kovetz Shiurim, in the pamphlet Divrei Sofrim—Rabbi Elchanan Wasserman—presents it. He says there cannot be an answer to this question. This is a question such that even before you answer me, I tell you there cannot be an answer. Why? To the question of what is the source of the sages’ authority to legislate. Because if you bring me a source, then Nachmanides’ question comes back: if the source is Torah-level, then now the same difficulty you raise against Maimonides applies to you. Because then doubts should be ruled stringently. If there is no source—fine, then why obey? And he says more than that, Rabbi Elchanan. He says not only can there not be a source from the Torah—say, not “do not deviate” but some other verse—that cannot be either. Because if there were another verse, the same question Nachmanides asks against Maimonides would apply to Nachmanides himself. Because if there is another verse, then I will now ask Nachmanides too: after all, doubts should be ruled stringently on account of that verse. What you asked against Maimonides is not specifically connected to “do not deviate”; any verse you bring me creates the same issue. So in essence it turns out that according to Nachmanides there cannot be any verse at all that is the source of this matter. But more than that: according to Nachmanides there also cannot be reasoning, says Rabbi Elchanan. Why? Because reasoning too is Torah-level, as the Talmud says: “Why do I need a verse? It is reasoning.” So if there is reasoning that says to obey the sages, that too would turn the force of the sages’ words into Torah-level force, and doubts would have to be ruled stringently. And once again, the difficulty Nachmanides asked against Maimonides comes back against him himself. Meaning, before I even enter into explanations or attempts to find a source for the sages’ authority according to Nachmanides, Rabbi Elchanan is basically saying that we are in a knot before we even begin to hear suggestions. There cannot be an answer to this question. The moment there is an answer to this question, we return in principle to Maimonides’ position that there is a Torah source for the sages’ authority both to legislate and to interpret. If there is no source, then very well, Nachmanides remains fine—but then the question is: why obey? If there is no source. The sages said so—they said so—but who says one has to listen to them? I can also say all kinds of things; who says people have to listen to me? There is some kind of knot here with no way to answer it. Rabbi Elchanan there, in Kovetz Divrei Sofrim, brings some kind of explanation—wow, we’ll have to finish soon, right?—he brings some strange explanation that isn’t entirely clear. He says that we have seen that the view of Heaven agreed with their view several times, and since that is so, we learn from here that basically one should listen to them, because they align with the view of Heaven, and one should heed their voice. The question is why such a thing is not called reasoning. That too is reasoning. So once again, its doubt should be ruled stringently, along with all the earlier difficulties. Meaning, it is not so simple a question how to understand what he says. I’ll suggest a brief proposal because I already have to finish. The claim is this: when we look for authority for the sages, we are basically picturing things as though the sages are standing opposite us. Yes, the sages say something, and we stand opposite them, and the question is what their authority is over us—whether we must listen to them or not. The question is whether that is the correct way to look at it. It may be that the question of authority does not arise at all, because the sages speak in our name; they do not command us. If we ourselves had decided upon ourselves to do something, there is a good chance that the Holy One, blessed be He, expects us to do what we decided, right? If you like, even by the law of vows or something like that, an oath. But beyond that—I mean, the reasoning says that if you decided, then do what you decided; ideally, if you determined something, it binds you. So when the sages determine something and we ask what their authority is, we usually assume that we stand opposite them. They stand opposite us, and the question is what authority they have to command me—why I have to obey them. But if I see the picture differently, they are not standing opposite me, they are standing with their backs to me, and I stand behind them. When they say something, they speak on behalf of everyone; it is essentially our decision. They represent us. Exactly. So if it is our decision, then the question of authority does not arise. We decided that this is what should be done, so it binds us, and that is what we must do. And then it is not that we have an answer to the question of authority—there is no answer; the question does not exist. Because a question of authority—”who authorized you?” or “what authority do you have?”—always arises when someone comes by force of authority and tries to tell me what to do. So I ask: who said I have to listen to you? But if I say I accepted this upon myself—I am speaking; it isn’t they speaking opposite me, rather they speak in my name, because they are the representatives of the public. They are the institution authorized to speak in the name of the public, as people understand it, say, in democratic government. Why is it that in much of the philosophy of jurisprudence—just a second—in legal theory they discuss the question of what authority the Knesset has, or what authority the legislature has? Here too, in my opinion, that question has no really good answer. The point is that there is no question. Because the authority of the Knesset does not derive—this is not authority. The authority of the Knesset derives from the fact that it represents me. If it represents me, then what it says is what I said. It’s not that it said it and therefore I have to subordinate myself and obey; rather, they were appointed by me—certainly in a democratic regime—and when they speak, they speak in my name, in the name of everyone. Therefore what they say binds me, not because they have some kind of authority or because of this or that explanation. All those assume there is a question of authority here. But if I say they speak in my name—I said it, I decided it—then there is no question why I have to do it. Because I decided; we all decided that this is how it should be. If you like, this is from the laws of contracts. The Knesset and the court—I did not compare them. What I compared was the logic of why they have authority. The Knesset has authority on the legal plane, and the Sanhedrin has authority on the halakhic plane, but the logic is the same logic. That does not mean there is a “do not deviate” for someone who violates Knesset laws; that is not what I meant to say. If that is so, why do you stop with the Sanhedrin? This could continue further, to any halakhic decisor whom the Jewish people have accepted. It might indeed be so. It could really be that this works as well. Rabbi, could this be what Maimonides means when he says ordination can be renewed through the agreement of the sages of Israel? That could definitely be. So long as there is agreement of the Jewish people—of the Shulchan Arukh—and it continued further. Perhaps. If there is such agreement, then yes, perhaps. So that is really one point. One final point—I simply have to stop here, so forgive me. Two more minutes. Yes. Just one point. I return to Maimonides’ position. We said that according to Maimonides, the authority from “do not deviate” is both to interpret and to legislate. And against that Nachmanides asked: if so, then every rabbinic doubt is really a Torah doubt. So why are we lenient in cases of rabbinic doubt? What did I answer? I brought later authorities who answered that when you do not obey because of a principled denial of the sages’ authority, then you violate “do not deviate.” If you do not obey because your inclination overpowered you, then it is a rabbinic prohibition. The question is whether that solves the problem. Because if so, then the question comes back again: so what authority do the sages have to command me not to eat poultry with milk? It doesn’t come from “do not deviate.” If it doesn’t come from “do not deviate,” and therefore it is only rabbinic law, then we haven’t answered the question. After all, the question was why I have to obey them. Right? Why do I have to obey them? So what do they answer me? Because of “do not deviate.” But now they explained to me: no, not because of “do not deviate.” If you violate it because your inclination got the better of you, then you did not violate “do not deviate.” Well then, if I did not violate “do not deviate,” then the question returns again. Right? So why obey them? In other words, there are really two questions here. One question is: where does the sages’ authority come from? And the second question: if they have some source for their authority, then why is a doubt about their rulings not ruled stringently? Why is a doubt in rabbinic law not ruled stringently? And seemingly, it is impossible to give an answer that succeeds in resolving both questions. Because if I found a source, then doubts should be ruled stringently. If I did not find a source, then fine, maybe its doubt is ruled leniently—but why listen to them at all if there is no source? Seemingly there is no possibility of answering this. So with Nachmanides I tried to suggest one direction; with Maimonides I’ll leave it to your own thinking, because I no longer have time to get into it. All good.