Q&A: What Is the Meaning of Accepting the Authority of the Talmud and the Local Halakhic Authority
What Is the Meaning of Accepting the Authority of the Talmud and the Local Halakhic Authority
Question
Hello, you have mentioned several times in the past that the only existing sources of authority, so long as there is no Sanhedrin (according to those who hold there is none…), are the Talmud—by virtue of the Jewish people’s acceptance, as the Kesef Mishneh writes; and the local halakhic authority, because the community accepted him.
This foundation is not clear to me. One can understand why acceptance of the Torah itself at Mount Sinai obligated the Jewish people for all generations, out of a conception of the Jewish people as one trans-temporal unit, and even more so because of God’s command itself.
But if a Torah scholar is obligated to clarify Jewish law to its fullest extent, how can the Jewish people obligate him to suppress what he truly thinks is correct (say, to reinterpret the verses from scratch, or to disagree with the Talmud’s conclusions), and be subjugated to the Talmud’s conclusions? This is not just some ordinary undertaking, like an additional rabbinic enactment or the stringency accepted by the daughters of Israel, whose force one can understand, but a limitation on the ability to issue a genuine halakhic ruling!
A parallel question concerns the status of the local halakhic authority—so what if the public accepted the rabbi, and so what if even I accepted him? I consider the matter on its merits and conclude that he is mistaken! So what if I accepted him?
If we accept the premise that the Jewish people took upon themselves limitations in halakhic ruling, as with accepting the Babylonian Talmud, I think that provides a basis for many of the traditions of halakhic ruling that the Rabbi does not accept—subordination to the medieval authorities (Rishonim), giving significant weight to the Shulchan Arukh, its commentaries, and later authorities (Acharonim), so that one does not openly disagree with them, but rather discusses their words and carves out a path as part of them. (Of course, many would formulate this in a sharper and more “submissive” way.) From my familiarity with halakhic literature over the last few centuries, it seems to me very reasonable to say that the Jewish people accepted these limitations upon themselves.
I would be glad to understand the principled basis, and what exactly marks the boundary line, in your view, between an acceptance that is binding and one that is not.
Answer
Hello.
Every legal system is based on a similar consideration. Why does the fact that I accepted the rules of the democratic game obligate me to obey the Knesset, even when I think a law enacted there is wrong? As I understand it, the implicit assumption here is that I am part of the public (and not just a private individual), and as such I am bound by what the public decides, because it is as though I too (within that framework) made that decision. The Torah too was given to the public, and it is the public that is supposed to interpret it and decide how to observe it. Therefore, even if I think the interpretation is wrong—that is the basis on which the Torah was given. But that is when the public has in fact decided in a clear way. Where there is a demonstrable error, I would consider deviating from that. Such a decision depends on the equation between the force of the authority at issue (Talmud, Maimonides, Torah, Mishnah Berurah) as against the force of my certainty that this is an error, and the force of the price of mistaken behavior.
The author of Derashot HaRan raises a similar question about the law of the rebellious elder. How can one obligate an outstanding Torah scholar to act in a way that he believes is wrong just because of the authority of the Sanhedrin? He answers that just as a halakhic error causes harm, so too deviation from the authority of the Sanhedrin is an offense that causes harm. And that error is preferable to this one. That is the principle behind what I am saying here.
On the other hand, since I recognize that this is a formal authority and not pure truth—meaning, I do not assume that there are no mistakes in the Talmud or in the halakhic decisors, but rather that they have binding authority—I weigh matters carefully. In a case where the error is severe and the authority is not absolute, I will deviate. And certainly I will not accept authority where there is none. The authority of the medieval authorities (Rishonim) is a common mantra, but in practice not everyone acts that way. Later authorities disagree with them in various ways. They find an opposing lone opinion, interpret their view differently, or disagree directly (where, in their opinion, it is a clear mistake). So I do not accept mandatory authority of the medieval authorities (Rishonim) or the leading halakhic decisors. I treat them with respect, but I do not shrink from disagreeing with them when it seems right to me.
In general, one should know that the rules of Jewish law (and rules in general) are not binary logic. It is not black and white. When one says there is authority, that is more of a guiding line than a categorical determination, just like any other rule. Viewing rules as something mathematical is a mistake, and you can see this in the whole conduct of Jewish law.
And in closing I will just say that my way, like that of many worthy predecessors, is to formulate things sharply when I describe my method. In practice, things are less extreme. In practice I deviate less from accepted halakhic paths, except where the times require it and where I think it is justified. But when I lay out my principles, I sharpen the point that indeed there is no authority and there is permission (and even an obligation) to disagree. See, for example, the contrast between the introductions of Maharshal, where he presents his principled method, and his completely conventional conduct in his responsa. And likewise in Shev Shema’teta, Igrot Moshe, and other halakhic decisors.
Discussion on Answer
When there is a law or reasoning whose basis is in the words of the medieval authorities, I really do think there is not much point in discussing it. That is unlike medieval interpretations of the Talmud, because there their interpretations are part of the corpus itself.
Just now a student sent me an article discussing covering foods over which the blessing of mezonot is recited (as opposed to bread) during kiddush on the Sabbath. This whole matter of covering them is rather lacking in source, and the reasons offered there seem pretty made up. So there it is hard for me to see the importance of such a discussion, and really everyone can do what he thinks. There is no evidence one way or the other, only statements from halakhic decisors who in any event are assuming their own premises. But it is true that the line is not sharp, and some interpretations too are based on the reasonings of the interpreters, so it is hard to divide with a sharp knife between reasonings that establish a law and reasonings that establish an interpretation. It is a matter of intuition and common sense (I hope).
By the way, you began with a distinction between Jewish law and secular law, and ended by saying they are in fact the same thing. The law was given on the understanding of its interpreters, and Jewish law was given on the understanding of its interpreters. And that is exactly what I said.
There is an enormous gap between the democratic legal system and Jewish law. Law is based on broad human agreement for the sake of improving the state, or realizing a shared world of values. Indeed, in my humble opinion there is no obligation whatsoever to obey the law in a case where it conflicts with your personal values, provided that in your view the social harm is smaller than the value problem, and provided that you are willing to pay the price for your actions—which are seen by the public as flawed (compare: refusal to obey orders).
Jewish law is not conventional, but a development of the Torah given at Sinai, and if that development is mistaken—the public’s agreement to it has no significance, absent sharp and clear sources of authority like a Sanhedrin.
Indeed, many times it sounds from your words that there is no point at all in mentioning the medieval authorities (Rishonim) (who, in your view, are not a primary source). Important decisors did indeed relate to the medieval authorities, to the Shulchan Arukh, and to some extent also to later authorities, as a source of authority—but they analyzed their words until nothing was left of them, and this seems to be quite a common path—from the very way the Talmud analyzes the Mishnah, and perhaps already from the halakhic midrashim on the Torah (of course, using genuine Torah tools, but far from the author’s original intent).
My personal position is that the Torah was given to the Jewish people as a whole, and is transmitted from generation to generation through the way they actually conduct themselves no less than through the formulated agreements of the sages of the Sanhedrin, though it is hard to prove this claim beyond personal identification and analysis of the paths of halakhic ruling throughout the generations.
For precisely this reason, there is significance to ruling in the accepted way—where the medieval authorities and the great later authorities are players on the field, whose words must be discussed. For this reason too, customs have a certain significance even if their original rationale has fallen away—like legumes on Passover.
The feeling of undermining these foundations may clean up the system a bit, but it also removes its most basic foundation.