Q&A: Rabbinic Decrees
Rabbinic Decrees
Question
In the Rabbi’s view, is it possible for rabbinic decrees to be absolute decrees, completely detached from their rationale, such that even in cases where the rationale does not exist at all, the decree would still remain in force and the matter would still be forbidden?
For example, the prohibition of ordinary gentile wine today, where there is no concern at all that the wine was poured as a libation to idolatry, and likewise no concern that the fact that an Arab worker at the winery touched the wine will lead me to social closeness with him and marrying his daughters.
Or for example the prohibition of gentile milk, which according to the Chatam Sofer, based on Rashi, is a fixed decree even when there is no concern that non-kosher milk was mixed in. On this the decisors relied who disagreed with Rabbi Moshe Feinstein’s famous leniency. (I saw that in Arukh HaShulchan he wrote regarding gentile milk that the mixing in of non-kosher milk is only one reason for the prohibition, and that the Sages had other hidden reasons for the prohibition that they did not reveal to us, and therefore it will always be forbidden whenever no Jew is watching. What does the Rabbi think about that? In my opinion this is complete madness that undermines the entire method of halakhic ruling.)
Answer
No. Decrees remain in force even when the reason no longer applies, and changing them is in principle possible, but it requires reasoning and justification. But here we are talking about presumptions, not decrees. Presumptions are determinations about facts. There is room to discuss this issue (and the later authorities have discussed it): whether prohibitions grounded in factual circumstances (such as gentile milk) are considered decrees or facts, with practical implications for changing them when the reason no longer applies. But in a discussion about presumptions, we are dealing with a factual determination without any prohibition as such.
Of course, in principle it is possible that some presumption may in practice always be correct. But that is not permanent legal force; it is simply permanent correctness. A presumption has no force when it is not correct.
Discussion on Answer
For some reason I had it in my head that this was a talkback on the last column, so I connected it to presumptions. My mistake.
As for decrees, the hidden-reasons thesis (usually attributed to the Vilna Gaon) seems to me puzzling to the point of absurdity. Both because it itself is unreasonable (at least not as a sweeping principle), and because as long as it is not clear to us that this is in fact the case, there is no reason to abandon a reasonable explanation and hang the decree on obscure explanations about which we have no idea at all.
The size of the court is 70 (and see Maimonides, Laws of Rebels, on how a court can be greater in wisdom and number). I think the requirement of greatness does not demand precise measurement. You need a great religious court, and they should assess that they are capable of repealing the words of their predecessors. In general, repeal of decrees and enactments is an area where the rules do not really work. I discussed this in my article on repealing enactments: https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%91%D7%99%D7%98%D7%95%D7%9C-%D7%95%D7%A9%D7%99%D7%A0%D7%95%D7%99-%D7%AA%D7%A7%D7%A0%D7%95%D7%AA-%D7%91%D7%99%D7%9E%D7%99%D7%A0%D7%95
Utilitarian considerations are very important, but it is important to distinguish them from the substantive considerations, and to deal with the latter first and only afterward get to the benefits. A utilitarian consideration says nothing about the meaning and definition of Jewish law, but with regard to policy questions it is an important consideration. Moreover, if I am debating whether to use the tool of repealing enactments despite doubts and reasons not to use it, a utilitarian consideration is very important in favor of using it.
Thanks for the answer. I asked about decrees, so it’s not really clear to me how the topic of presumptions came in here.
A. Regarding decrees: if in your understanding they can be repealed only by a religious court greater in wisdom and number, that creates a problematic situation, because today we have no way of knowing the size of the court that enacted those decrees in the Tannaitic period, and so it would follow that we can never repeal the decrees. Are we doomed to live forever in an absurd and illogical halakhic reality in which, for example, it is forbidden to drink wine touched by a gentile worker in a winery, but perfectly permitted to sit with a gentile in a bar over cooked wine and other alcoholic drinks? A reality in which it is forbidden to take medicine on the Sabbath lest one grind ingredients?
By the way, I know you don’t like utilitarian considerations, but I’m saying this as a fact and not as an argument: one of the reasons many people do not want to keep a religious lifestyle is the complete lack of relevance of Jewish law to present reality. To people it feels totally pointless to observe laws that have no meaning today.
B. What do you think about the Arukh HaShulchan passage I quoted, that rabbinic decrees have hidden reasons that the Sages chose not to reveal beyond the reason they stated explicitly? Does a claim like that seem reasonable to you?