Q&A: Authority
Authority
Question
Even though there is no ordination, from what I understand from the halakhic decisors there is a rabbinic obligation (and according to some, even a Torah-level one) to establish a religious court and appoint judges. Is that correct?
If that is correct, how does that fit with the existing halakhic freedom that halakhic decisors have within the framework of the Talmud? In other words, each decisor chooses his halakhic path according to his own reasoning. So suppose a decisor goes to a religious court and they deliberate about him and rule a certain way, but on that issue he is very expert and in his opinion the judges are completely mistaken in the topic—does he have to defer to them?
And an example of a more difficult question: there is a Jewish law that in one city where there is a single religious court, some of the judges may not rule according to one approach while others rule according to another approach. And of course everyone in that city is bound by that religious court. Does that mean that the religious court determines what the Jewish law is even today in certain matters (and according to the stricter opinion, it is even forbidden for there to be two religious courts in the same city, each ruling according to a different approach)?
Answer
It is unlikely that the obligation to appoint judges who do not have ordination would be Torah-level. Though one could certainly analyze that.
But I didn’t understand your question. A halakhic decisor does not go to a religious court. Litigants go to a religious court. Someone who appears before a religious court obviously has to comply with its ruling. But what does that have to do with a decisor? People come to him with a halakhic question, and he answers according to his understanding.
I also didn’t understand the more difficult question. What does it mean that some judges would rule differently from others? Are they sitting on the same panel? Do you mean the prohibition of “do not form separate factions”? What is the question here?
Discussion on Answer
All right, I hope you understand what you’re asking. I don’t.
Maybe I’ll ask it this way: would it be correct to say that every competent person can clarify for himself what the Jewish law is within the framework of the Talmud, except in places where the religious court in the city established a certain ruling, because there he is forbidden to determine something else even if he thinks otherwise based on the Talmud, Because of the prohibition of “lo titgodedu”.?
No. That is not correct. He can determine the Jewish law for himself even when the religious court ruled otherwise. A religious court does not determine Jewish laws; it adjudicates between people.
But it adjudicates between people according to Jewish law; in its opinion the law is such-and-such. After all, even monetary law is ultimately part of the area of prohibition and permission too (that’s what you yourself said, Rabbi, in one of your answers). So if that is still the answer, how then does “do not form separate factions” come into play?
The Meiri: “What the Torah said, ‘do not form separate factions’ … contains a hint not to make the commandments into separate groups, that is, that some should act one way and others another way, until they appear to be observing two Torahs. When does this apply? When there is only one religious court in the city, and that very court itself is divided, with some of it ruling according to one approach and some of it according to another approach. But if they are two sets of religious courts, even if they are in one city, and one religious court follows the practice of ruling according to this approach while the other religious court rules according to that approach, there is no issue of separate factions here. For it is impossible that they should all forever agree on one opinion, all the more so in matters dependent on custom, where there is no objection if these act this way and those act that way.”
Sorry, but I can’t understand what is troubling you. I don’t see the slightest question or difficulty here.
On the one hand, every competent person has halakhic freedom to decide for himself what the Jewish law is according to his own understanding within the framework of the Talmud. On the other hand, there is a rabbinic obligation that there be a religious court in the city (?) and everyone is obligated to listen to its rulings, so where is the halakhic freedom here? Meaning, even when people come to a religious court, that is basically a halakhic question too, isn’t it? And if that is so, then religious courts should really have to publish law books, no? For example, are you bound by the halakhic view determined by the religious court in your city, and if not, why is that not a violation of “do not form separate factions”?
For example, here is part of an article that might explain what I mean:
“The Tur writes that the force of ‘we act as their agents’ is only rabbinic. By contrast, Netivot writes that it seems to him that it has Torah-level force, except that the matter was handed over to the sages. His proofs are that the concept of ‘we act as their agents’ was not said only with respect to monetary law, where one could say ‘property declared ownerless by the religious court is ownerless,’ but also with respect to accepting converts, and therefore it has practical implications in the area of prohibitions as well: if the convert betrothed a woman and afterward another man betrothed her, the second betrothal is invalid. But if we say that ‘we act as their agents’ is effective only rabbinically, then the sages would have no power to uproot a Torah prohibition! Netivot brings a similar proof from the fact that one may compel a bill of divorce, for if by Torah law the divorce is not a valid divorce, it turns out that the sages are permitting a married woman. Netivot concludes that although Nachmanides wrote that in the case of betrothal this works by virtue of the rule ‘the sages uprooted his betrothal from him,’ he writes that this is forced, because if so they should have stated it explicitly, since this has several implications.”