Q&A: On the Authority of the Sages in Jewish Law
On the Authority of the Sages in Jewish Law
Question
I would like to clarify how you arrived at the conclusion that the Talmud has formal authority to establish norms of conduct. After all, that claim itself is written in the Talmud, so how do we know it is true?
And especially in light of what seems to emerge from the Hebrew Bible (Tanakh): for judicial purposes they did not consult Torah scholars [if such people even existed], but rather judges who, through their military prowess, succeeded in saving Israel and then became judges of the people—and among them were commoners and lowly people of the land. Women too were appointed as judges over the people, even though they are altogether forbidden to study Torah. And the request for monarchy was so that "he may judge us like all the nations," etc. And Solomon asked for "wisdom" to judge the people—he was apparently endowed with a high IQ, not with Torah knowledge descending upon him overnight. In general, the institution of the Sanhedrin is not mentioned in the Hebrew Bible (Tanakh) at all. [If anything, the priests were the authoritative teachers, which itself is puzzling—since when and how does Torah pass through priestly genes?]
And in fact, in that very generation in which rabbinic authority began, the rebellious movement also arose that did not recognize this authority. So why, and on what basis, did you choose specifically to adopt the position of the rabbinic Pharisees, against what seems to emerge from the Hebrew Bible (Tanakh) itself?
Answer
The authority of the Talmud is not written in the Talmud. Where did you come up with that? It is an authority accepted by the Geonim, the medieval authorities (Rishonim), and the later authorities (Acharonim) after the Talmud. The agreement of the entire public is binding, just as at Mount Sinai.
I am not familiar with that implication in the Hebrew Bible (Tanakh). But in any case, the biblical period is very obscure, and it is hard to learn anything from it for our own situation. And even if the situation changed, there is no sanctity to what existed in the biblical period. Just as laws can be innovated in every generation, including Torah-level laws, so too the authority of the sages can be innovated.
The Torah does not pass through the genes of the priests. The priests were available and designated to engage in Torah and Temple service, and therefore from among them came the halakhic teachers in Israel (those who were worthy). That is all.
Discussion on Answer
Any group can gather and decide on such an agreement. It is more reasonable to give the authority to the collective body of all Torah sages. You can’t say that about any of the groups mentioned.
The question was only what the source of the obligation is. A person who grows up in a Mormon environment and at some point realizes that all the indoctrination he was raised on is complete nonsense—it is absurd to think he has any obligation whatsoever to the group’s agreement. And even if arguments could be offered that he does, at most we would arrive at a conflict of obligations, but in the end most of us would admit that his obligation to the truth is greater. That is, all obligations are nullified the moment they require a person to live in falsehood (which implies that they never existed independently in the first place).
And in our case, doesn’t the claim that "it is more reasonable to give authority to the collective of all Torah sages" assume some obligation to that rational plausibility? If so, then it too rests on an external anchor—the obligation to obey reason. What is the source of that obligation? Presumably the obligation to the Creator—the source of reason and logical plausibility, since He is the source of all truth.
What is reasonable is that the Holy One, blessed be He, also wants this, if only by force of "do not deviate."
Got it. But the examples I mentioned show that "the agreement of the public," without the will of God, cannot in itself serve as a binding source. In other words, we cannot get stuck at "the agreement of the public" in the chain of reasons that justifies halakhic authority. We need to explain *why* it is reasonable that God’s will in this case is for us to follow the agreement of the public. And the force of the justification will depend on the force of the reasons for that plausibility.
With that I completely agree. True, the public’s agreement/decision has weight, as in the obligation to obey the law of the state, but not absolute weight.
Something like this was held by Rabbi Shimon Shkop in Sha'arei Yosher (volume two) regarding property rights:
"At first glance it is a puzzling matter: what necessity and obligation can there be upon a person to do something without the Torah’s command and warning?" … But when we examine the matter carefully, this can be understood. For the obligation and necessity to serve God and fulfill His blessed will is also a matter of obligation and necessity according to the judgment of the intellect and understanding. Likewise, monetary obligation and subordination are legal obligations incurred through the modes of acquisition.
And he gives a similar answer as to why one must obey the enactments of the sages according to Nachmanides:
"Just as the intellect agrees that one should obey the voice of God, so too the intellect decrees that one must be careful regarding everything about which the sages and our holy rabbis warned us."
And this explains why it was forbidden for the people to heed the opinion of the sages of the generation who claimed that Jeremiah was a false prophet.
One should note that he bases this on the judgment of the intellect and understanding, and does not grant authority to the public by virtue of the mere fact that they decided. Intellect says that the public is supposed to determine property law, and that sages are supposed to determine Jewish law. Clearly, the mere fact that a public or a group of sages decides something does not, in itself, create an obligation to obey.
It seems to me that in a democratic regime there is such an obligation (even if not absolute), because there I am among the voters for those who make the decisions, and therefore the decisions are considered my decisions (together with everyone else’s), and I have also signed on to an obligation to obey them (a social contract), and that creates an obligation on me to act accordingly.
Regarding the obligation to obey the law in a democratic regime, it is no less than the obligation of a tourist (who is not part of the voting public). The obligation stems from the public’s sovereign ownership of the land. Whoever enters or stays within the territory of the state does so with the public’s permission and on condition that he is willing to observe the laws of the state.
In the Land of Israel I’m not sure that works, because seemingly every Jew has private ownership by inheritance law (as a descendant of those expelled by the Romans). As for other countries too, it is not clear how a state can acquire ownership over private territory, and therefore, according to libertarian theorists, its laws have no validity on your private property or that of someone hosting you on his property, beyond some minimal necessary level.
That doesn’t seem sufficient to me for a citizen. He owns his home, and the fact that the public spreads an umbrella over him and forces him to do or not do things is unjustified coercion. Only the fact that he himself is part of the public and elects its representatives constitutes justification. As for a tourist, you are right.
According to your approach, what obligates a tourist who buys a house in the country to behave according to the laws of the state inside his home?
As a buyer he steps into the seller’s shoes. In other words: the seller, as someone obligated by the law, is not permitted to sell to a buyer who is not so obligated.
Why does the fact that someone owns his home make the public’s coercion illegitimate? A private person’s ownership of his home is not absolute ownership. The proof is that the state can expropriate his home. Only the ownership of sovereign public bodies over land is ownership with full force (in the sense that a larger public that spreads an even larger umbrella over it may not expropriate the land of the smaller sovereign public within it).
The whole issue of positive state law seems problematic to me. If tomorrow three people were stranded on a desert island, would the fact that two of them decided to hold a vote in which they could decide whether they are allowed to rob the third make it permissible? In reality things are of course more complex, but already at the level of basic moral intuition there seems to be a problem here.
The notion that the government steps into the seller’s shoes, where the seller is bound by the law, assumes the circular premise that the seller is not really an owner of himself (and therefore of his property—the fruit of his labor) except on terms set by the government. Maimonides rules that when a regime issues currency and the public uses it, then the very use testifies to the public’s consent to the regime. But what happens if from the outset the regime never allowed in the past, and does not allow in the present, competing currencies or competing banks to try to compete freely with its currency? In that case this is no longer really the public’s consent, but rather lack of choice arising from the threat of violence (imprisonment, deprivation of rights, etc.).
Regarding "the agreement of the entire public"—doesn’t that give the Conservatives an opening to say that the agreement of their public is to rule according to the Conservative way? And Christians, who agreed to accept upon themselves the writings of the New Testament or the authority of the Pope; and the agreement of Muslims regarding Muhammad as a prophet; and the Mormons regarding Joseph Smith, etc.? It would seem that some external anchor is needed, and if there is such an anchor, then the public’s agreement in itself is not what creates the obligation.