Q&A: Conservative Midrash
Conservative Midrash
Question
Hello and blessings!
Both in the chapter on people with same-sex orientation and in the chapter on women, it comes out that a “conservative midrash” requires authority, and therefore it is impossible to carry it out without a Great Sanhedrin (or broad, comprehensive rabbinic agreement).
But I didn’t fully understand why—after all, we are not talking about repealing enactments, which require a Great Sanhedrin, but about midrash similar to what the Tannaim and Amoraim did—a claim that the essence of the law is such-and-such, and therefore its parameters are such-and-such. And if the meaning is that this is because it is a midrash that contradicts what they expounded—that is not clear. For example, regarding the disqualification of women from testimony, where did they explicitly expound otherwise than the midrash you proposed?
Moreover, even if it did contradict them, we are not dealing here with enactments but with interpretation, and in that regard any religious court can disagree. Well known are the words of the Hazon Ish in Kovetz Inyanim (in disagreement with Rabbi Elchanan) that there is no need for a greater religious court:
And regarding the main point—that it is impossible to disagree with the Great Court even in a generation after them—that is not so; rather, any court can disagree with the Great Court. So it is in Maimonides at the beginning of chapter 2: “and if after them another court arose…” which implies that even a court after the destruction of the Temple may disagree with a court from before the Temple, as he concludes: “as it says, ‘to the judge… in those days’”—meaning, you have only the court of your own generation. And if Maimonides held that one cannot disagree with the Great Court except by another Great Court, he would not have refrained from explaining such a major law. And from where should we say so, since the whole matter of the Great Court in the Torah is stated specifically as “in those days,” only for their own generation? Rather, Maimonides’ intention is certainly any court, and therefore he wrote at first “the Great Court” and at the end simply “court.”
With blessings and thanks,
Answer
Hello.
I don’t recall writing such a thing, and I also don’t think so. On the contrary, even creative midrash does not require a Great Sanhedrin. Quite the opposite: in Maimonides, in several places, it seems that midrash is one of the tools of interpretation, and every person is supposed to use it just as every person is supposed to interpret. True, the product of the midrash or interpretation is not binding if it was not done by the Great Sanhedrin, but that is true of any halakhic ruling, not specifically of midrash or any other interpretation. I explained that distinction there in the book.
Of course, if you are expounding against an existing exposition of the Great Sanhedrin from an earlier generation, then there are considerations of authority. For Torah-level law, that requires only the Great Sanhedrin, and for rabbinic law we require that it be greater in wisdom and number.
I was not familiar with the Hazon Ish’s comments, and they are of course completely unfounded. As in other places as well (and I mentioned this in the book too), I am almost convinced that he himself, great sage though he was, did not believe this. It is a statement meant to strengthen the standing of the sages of our time (“da’at Torah,” and so on). Perhaps this can fit with the view of Sefer HaChinukh, who argues that “do not deviate” applies even when there is no Great Sanhedrin, and that too is, of course, a very puzzling position.
Discussion on Answer
I didn’t understand your question. Since this midrash appears in the Talmud, it is like an exposition of the Great Sanhedrin. Therefore, in principle, to change it, another Great Sanhedrin is indeed needed there (even if not greater in wisdom and number). However, one can discuss the other mechanisms of change that I described there (such as freezing, and the like).
Regarding homosexuals, a Great Sanhedrin is not required because no other decision is known to me (one can of course argue that the absence of discussion implies that they made no distinction, but here there is certainly room to be lenient). Still, common sense says that some sort of consensus is required, especially with respect to a public question. If a particular homosexual person were to expound this for himself, I could not say he had committed a prohibition. But to publish a general permit is a bit much for me, even if I were convinced. All the more so because I am not convinced that this permit is correct; I only suggested the direction in principle as a way for the public to think about the issue.
As for the Great Sanhedrin, this seems truly absurd to me. First, even if the Great Court of our own time disagrees with an earlier Great Court, still, so long as they have not disagreed, the earlier one remains binding. So one cannot say that the authority of the Great Court is only for its own generation. “You have only the sage of your own days” was said only if the court of today disagrees—then we must follow it and not the earlier court. Beyond that, there is no source whatsoever that a future court can disagree with a ruling of the Great Sanhedrin. A court today is like any private individual. However, if there were a general consensus of all the members/sages of the generation, then perhaps the forum that received that consensus would have authority like that of the Talmud, whose authority too stems from public acceptance. The Hazon Ish, in several contexts, produces baseless statements just to strengthen some institution or other (like the “two thousand years of Torah,” and the like. I mentioned this in the book).
I do not know of sages who disagreed with the Great Sanhedrin. You won’t find that they checked this, because by the days of the Tannaim and Amoraim there was no longer such an institution (even the court at Yavne, whose status is doubtful, had already ended fairly early). No one disagreed with the decree of the Eighteen Matters and the like, which were clearly accepted in the Great Sanhedrin.
But this is not a disagreement with the first court; rather, it is the claim that it too would have permitted it had it lived in our time and the reality changed (it wore thin clothes because it went in the desert; it disqualified women because back then they did not understand the ways of life). So why is there a need for a Great Sanhedrin? Is it needed only when you disagree? And here this is not a disagreement. (And this is not even contrary to accepted practice—as long as women are not accepted for testimony in matters of marriage—because in practice, in any case, women’s testimony is accepted in the courts of our time.)
I explained there that the argument about swimsuits (that even the court of that time would permit them today) is a substantive argument. Still, the authority problem remains, because even if reality has changed, a decision of the Great Sanhedrin is needed to cancel an earlier decision (as learned from “Return to your tents”). There are, however, various exceptions that I detailed there (mainly in the chapter on rabbinic enactments and decrees, because there there are many concrete examples). Among them: when the reality is completely different in a way they could not have imagined at all, and also other mechanisms there. If that condition is met, then perhaps it is possible even without the Great Sanhedrin. It is all explained there in detail. I suggested quite a few tracks and mechanisms, and each one has to be considered on its own terms.
Thank you very much,
So according to this, the conservative midrash regarding the disqualification of women from testimony has no authority problem, because it does not contradict expositions of an earlier court, so an ordinary sage can rule that way on his own, in your opinion? I think the book says otherwise, and I’ll check this evening. And similarly regarding the issue of homosexuals—the conservative midrash that there is no prohibition for someone for whom this is his only orientation—does that require a Great Sanhedrin (or broad agreement)? That too does not contradict other explicit expositions, does it? And there I’m sure the book says otherwise (that broad agreement of all the rabbis of our time is needed, replacing the Great Court, as you referred several times to Rabbi Sternberg’s article, and I think it says that there as well regarding women’s disqualification from testimony).
As for the Hazon Ish’s comments—why is it so obvious to you, conceptually, that an individual cannot disagree with a Great Court of a previous generation? It actually seems like a profound statement—that in matters of Torah, not enactments, the authority of every Great Court is only for its own generation, and the whole matter of authority over later generations, as expressed in the rule “unless it is greater in wisdom and number,” applies specifically to enactments and decrees. (Likewise, the whole rule that a matter decided by vote requires another vote to permit it, which you mentioned several times, deals specifically with actions of the courts—enactments and decrees—not interpretation of the Torah.
That also seems to emerge from how the Tannaim and Amoraim conducted themselves (they disagreed with earlier generations in interpreting the Torah without asking whether that exposition had been decided and innovated in a Great Court or not; and after all, the Great Court was active then. Of course one can reject the proof, but I think that is the impression one gets).
I also don’t think this stems from a desire to magnify the honor of today’s sages, because certainly today it is irrelevant—after all, we have no power even to disagree with the laws of the Mishnah and the Talmud in his view, so what does it help him to say that an individual sage can disagree with a Great Court?
Thanks again, and much appreciation—I’ve been learning it in the evenings and on Sabbaths lately and enjoying it very much