Q&A: Was the Rashba Reform?
Was the Rashba Reform?
Question
Contrary to my intuition about the Rashba—that if he were alive today he would be among the leading Haredim—I came across a statement of his today that very much undermines, for me, the logical basis for conservatism regarding the Torah’s commandments.
In Nedarim 90b, the Mishnah explains that even though by Torah law a woman is believed to tell her husband that she has become forbidden to him, nevertheless the sages later “retracted and said: lest a woman set her eyes on another man and ruin things for her husband; if she says, ‘I am impure to you,’ she must bring proof for her words.” And the Rashba asks: but surely in a Torah-level doubt we rule stringently. He answers that for the sake of safeguarding matters, the sages uproot something from the Torah. And the Torah gave them this power from the verse “to him you shall listen.”
Now, aside from the fact that his position is itself novel, there is an additional novelty here: that safeguarding matters is not only for the sake of maintaining the Torah itself (for example, if they stoned someone who desecrated the Sabbath in order to uphold the religion), but even for the sake of establishing a reasonable way of life (based on their judgment), so that a woman should not leave her husband where there is no real need. (And therefore they enacted that even if she actually had relations, so long as the matter is not known, she remains permitted to her husband.)
I safely assume there are Reform / Conservative figures who genuinely understand some commandment or other to be unsuited to our lives in their modern form. Is there room to uproot explicit commandments in the Torah?
And although the Rashba wrote that the authority for this is given to those whom the Torah authorized, still, let us imagine that all the sages of Israel agreed to uproot something—something that according to Nachmanides at the very least (and according to Rabbi Elchanan Wasserman in Kovetz Divrei Sofrim and Kovetz He’arot we are forced to say that everyone agrees to this, since by that power we are obligated to follow the rulings of the Talmud) has the status of “do not deviate”—would the commandment actually be uprooted?! According to him, there is no place for conservatism in the rulings of the sages of the generation; the only fundamental question is whether this commandment is suitable for a proper way of life or not.
And even more so, the Rashba did not base his words on “do not deviate” but on the verse “to him you shall listen.” But about that they said, “you have only the judge who is in your days.” If so, they would not even need the agreement of all the Torah scholars of the generation, only the agreement of the public leader from among the opinion leaders accepted by the public (as they said about Jephthah, that he is like Samuel in his generation). And perhaps for a public that is less observant of Torah and commandments, their leader is a Reform ‘rabbi’?! I am astonished.
By the way, as an incidental footnote, just to sharpen the point and with no connection to the serious question above: I heard the episode on the Hedgehog and the Fox podcast where the Rabbi was a guest. The Rabbi told the yeshiva joke about Maimonides coming to a lecture by Rabbi Chaim of Brisk and disagreeing with his approach to explaining Maimonides’ words. And everyone says to him, “Be quiet—what does a Frank know about Maimonides?” And Shmuel Rosner drew a parallel to the midrash about Moses hearing a lecture by Rabbi Akiva and not understanding. And the Rabbi argued that in the story about Maimonides there is an extra sting—that he’s a Frank…
In my opinion, the Rabbi forgot the famous saying that gets tossed around in the study hall, from which we learn that even “Moses our Rabbi” was a Frank. How do we know? Very simple: if he were a Litvak, they would have called him “Rabbi Moshe,” and from the fact that they call him “Moses our Rabbi,” it is proven that he was a Frank… (By the way, he also lived in Egypt with our cousin-brothers.)
Answer
A very good point. I would just note that there are other medieval authorities (such as the Ra’avad in Tamim De’im and others) who give the sages the power to uproot something from the Torah through positive action when the times require it. And in the simple sense, “when the times require it” also includes moral repair and not only halakhic repair. I’ve written more than once that the difference from the Conservatives doesn’t really exist. (The Reform are something else. A Reform rabbi does not fall into this category, because he is not committed to Jewish law in principle.) There is of course the question of authority, but you already noted that.
Discussion on Answer
See also Sabbath 64b: “And she shall remain in her menstrual impurity—The early elders said: she should not use eye makeup, nor rouge, nor adorn herself with colored garments, until Rabbi Akiva came and taught: if so, you make her repulsive to her husband, and her husband will end up divorcing her. So what does ‘And she shall remain in her menstrual impurity’ mean? She shall remain in her state of impurity until she comes into the water.” And also see the Rosh, in his abridged laws of niddah: “The daughters of Israel,” where he wrote that the prohibition of seclusion is by Torah law, and the sages permitted it because otherwise you would make life impossible, and therefore one must be careful about the distancing measures. Similarly, see the Chazon Ish, Even HaEzer 22:3, regarding a woman’s credibility based on one witness, in the Tosafot approach.
I didn’t know of medieval authorities who give power to uproot a commandment because of a new need that arose—only a temporary suspension. But here the Rashba says that by force of the sages’ judgment this commandment is uprooted for generations.
And regarding the Ra’avad’s words, I’ve now seen what he says, and I think the Rashba goes at least two steps further.
The Ra’avad is talking about a place where one could say by reasoning that although the Torah prohibited something in general terms, reasoning can still teach us to limit the scope of the prohibition and say that in a certain case it is permitted. In my opinion, the simple meaning of his words is that the sages are not innovating anything; rather they are learning that in such a case it was never prohibited to begin with (as he writes: “But this is no wonder, for there is a great reason here, since sometimes it involves saving many lives, etc., and perhaps there is some verse about this. And even if there is no verse, the sages have the power to uproot something from the Torah even through positive action according to everyone when there is some rationale for permitting, for then it is not similar to uprooting… This is how I explain it, and in a similar kind of matter, one may uproot according to everyone, and there are many proofs, and the reason is that in such a case it is not considered uprooting”).
But the Rashba holds that they have the power to uproot a commandment. Until now it was a commandment; from now on it has been nullified.
Beyond that, the Ra’avad permits the prohibition because of a consideration of saving lives, which has a clear basis in Jewish law as grounds for permitting something (except that in his view the sages set broader boundaries for this permission than is usually accepted), whereas the Rashba holds that for the sake of proper family life they permitted a prohibition. I don’t recall any other source saying that for this purpose one may override a prohibition—not a negative commandment, not a positive commandment, and not even a rabbinic one.
According to the Rashba’s view, it would not be reasonable not to permit homosexual relations for gays today. According to the Ra’avad, I don’t see room to permit it.
Regarding the places Moshe cited, I would note that there too there is no similarity to the Rashba’s words. The fact that sages in every generation have the power to arrive at new understandings in the Torah according to the breadth of each one’s understanding is obvious. In such cases this is not uprooting a commandment but interpretation. That explains Rabbi Akiva’s exposition. And it also explains the matter of seclusion that he brought from the Rosh, since the prohibition itself was not specified from the outset except through the sages’ understanding; if so, there is nothing surprising if at a later time they saw fit, in their judgment, to permit it.
Yesterday I happened to learn a Jerusalem Talmud in Sanhedrin that makes this claim. I don’t think it is well known, but in my opinion it is very interesting in the present discussion, and one could develop a broader discussion around it: “Rabbi Yannai said: Had the Torah been given in clear-cut form, no foot could stand on it. What is the reason? ‘And the Lord spoke to Moses.’ He said before Him: Master of the universe, let me know how the Jewish law is. He said to him: ‘Follow the majority.’ If those who acquit are more numerous, they acquit; if those who obligate are more numerous, they obligate—in order that the Torah may be expounded in forty-nine ways impure and forty-nine ways pure.”
The law of one witness regarding a woman is also, in my opinion, similar to the above (I wrote about this on the site some time ago). The fact that we believe one witness in a matter that is liable to become known, because according to his understanding he is speaking truth, is Torah-level reasoning. But the religious court is still not obligated to adopt his perception of reality. “The matter was handed over to the sages,” according to their judgment, to decide what they themselves think about the situation, and whether to rule according to that witness’s knowledge or to be concerned about error. (That is the simple meaning of Maimonides’ words at the end of the laws of divorce: he introduces the reasoning that in a matter likely to become known, one witness is believed by Torah law, and then in the same breath mixes in that the sages believed him because of the concern for a chained woman.)
I still have not found anyone else who supports the Rashba’s words other than the Ritva on Nedarim 90b and the Meiri in that same passage mentioned above, who also suggested the Rashba’s approach.
The Ra’avad—and he is not the only one—writes that they can uproot something from the Torah through positive action. I didn’t understand your distinction.
Also, the sages permitted killing an informer who hands over money (Bava Kamma 117), and that is how it was ruled in Jewish law.
Your analogy to permitting homosexual relations for gays is completely unfounded. Why permit it? Because it’s hard? It was always hard, and it remains hard.
1 – There, it’s a limitation of the scope of the prohibition by reasoning. The Torah was not speaking about an informer, just as they could have derived this through a verbal analogy, so too it can be derived through reasoning.
Just as every derivation by verbal analogy is not an uprooting of Torah law, but a disclosure of what was already written in it, so too limiting the scope of the prohibition by reasoning.
2 – Indeed, I was mistaken.
I’ll just note that the line between preserving Jewish law and extra-halakhic matters is not sharp. Preserving a marriage is something many would view as a Torah value.