Class Notes - Class #20

The main topic for this class is the nature of rabbinic authority.  Before we get to that we have several mitzvot on other topics.

            Mitzvah #492 prohibits planting trees in the azharah or the Temple.  Given the hot weather shade trees might seem desirable, but idol worshippers tended to plant trees to beautify their places of worship so Jews should avoid similar behavior.  The rabbis extended the mitzvah to prohibit building wooded balconies or porches in the Temple, so all construction in the Temple compound was made of stone.  The mitzvah continues to apply, so Jews continue to be prohibited from planting trees on the land on which the Temple stood.

            Mitzvah #493 prohibits Jews from erecting a pillar as a place of worship, even if the intent is to worship God there.  Pillars are tall structures of stone or earth.  Erecting pillars was a common idolatrous practice so Jews are required to avoid doing that anywhere.  The mitzvah does not prohibit building altars.  The author does not mention whether there is any prohibition on building pillars for purposes other than places of worship.

            Mitzvah #494 prohibits bringing an animal with a mum as a sacrifice.  If the mum on a consecrated animal is permanent the animal should be redeemed and a different animal should be substituted.  If the mum seems to be temporary we should wait and see what happens.  If the mum clears up the animal should be sacrificed.  If the mum does not clear up, it is treated as a permanent mum.  The mitzvah applies to cohanim who would process the sacrifice, but also to ordinary Jewish men and women who would have been qualified to slaughter the animal for sacrifice.


Now to the topic of rabbinic authority:

            Mitzvah #491 requires a Jewish community to appoint officers to help the community settle disputes and to keep the community loyal to the Torah.

The author discusses the use of force to keep the members of a Jewish community adhering to the mitzvot of the Torah.  Individuals left to their own personal motivations might not live up to proper standards, so some level of coercion might be necessary.  But coercion is not the ideal.  Rather, people who are coerced into behaving properly will eventually internalize that behavior and continue to behave well out of love and loyalty to the Torah.  Good behavior is habit forming.  The overall community will continue to improve as those values continue to be internalized and ultimately the community will earn God’s blessing.  The author does not discuss exactly what the officers should try to enforce and what they should leave to individual choice.

            This mitzvah required the Jews who entered Israel to create a system of courts and officers.  Small towns had courts of three judges.  Larger towns had courts of 23 members drawn from the entire area over which the court had jurisdiction.  Each tribe had a court of 23. These courts of 23 were empowered to impose criminal penalties.  There were additional courts of 23 in Jerusalem, at the entrance to the Temple and at the entrance to the Temple mount.  And there was the Sanhedrin of 71 members which met in a dedicated space at the border of the Temple compound.  When a court was presented with a problem the judges did not know how to resolve they bounced the question up to the next highest court.

            Earlier we saw the author describe the qualifications for judges, which were so demanding it was a little hard to imagine anyone who would be good enough.  The officers and judges the community appoints must be people of the highest caliber.  The author says the judge may be ordinary Jews or cohanim or levi’im of distinguished lineage from families whose daughters could marry cohanim.  That would seem to exclude converts and others with certain sexual impropriety in the family history.  Judges who are very old, or blind, or castrated or childless are also not qualified to serve on the Sanhedrin or courts of 23.

Judges had to have a thorough general education.  The author mentions the need for the judges to understand medicine, mathematics, astronomy, astrology, and magical practices.  Without broad general knowledge judges will not be able to understand the facts of the cases before them.  That list of disciplines is not exhaustive.

Judges on official courts had to have smichah passed on from the original ordination that began with Moses and continued to be passed down from generation to generation.  Originally Moses conferred smichah by laying hands on a student and passing on ordination to the student.  But later the process changed.  Three ordained rabbis would test a student to make sure the student had the requisite knowledge, good judgment and upstanding character. That allowed the student to use the title “rabbi” and to decide legal cases, even those where the court might impose monetary fines.

            Within each court there was a hierarchy of judges.  Seniority was determined by each judge’s level of knowledge.  Among those of equal knowledge, older judges had more seniority than younger judges. One judge was appointed as the chief judge.  The judges were seated in a semi-circle with the chief judge in the middle; the more senior judges sat closer to the chief judge and the less senior judges sat further away from the chief judge. 

            Aside from appointing judges the community should also appoint officers to patrol the community and make sure the populace are behaving themselves.  Specifically, those officers should make sure that commerce is being conducted fairly.  For example, they inspect weights and measures to make sure they are accurate.  That is the only example our author gives, so it is hard to know whether he also would anticipate police enforcement of ritual law.

            Without going into detail, the author mentions the issue of the relationship between this court system and the general governmental authority. 

            The mitzvah to appoint courts and other enforcement officers falls on the entire community in each place where there is a Jewish community.  When the Temple stood when the Sanhedrin was meeting regularly and when smichah was still being conferred, courts of 23 or the Sanhedrin of 71 in Israel could decide capital cases.  Rabbis with smichah could go abroad and decide cases there. 

            Even after the destruction of the Temple and the demise of smichah, communities should appoint officers to settle disputes and help maintain community standards. Those officers should have wide discretion as to what to enforce and how to enforce it.  But for those officers to be effective they have to be above reproach as to their own behavior.  And it has to be clear to the community that the officers are working for the benefit of the community as a whole rather than for their own benefit.  They need to put community welfare before their own individual well-being.  That is a tall order.  Anyone following current politics will know just how difficult that is.  Things probably were not any better in our author’s time, or at any other time.

            Mitzvah #495 requires Jews to obey the rules established by the Sanhedrin of 71, and mitzvah #496 prohibits Jews from disobeying the rules established by the Sanhedrin. Our author explains that these mitzvot also require Jews to follow the rulings of rabbis in their own time even if the Sanhedrin is no longer functioning. These mitzvot raise fundamental questions about how the Sanhedrin made decisions, what happened to scholars who disagreed with the Sanhedrin’s decisions, and the role of the rabbis in interpreting the Torah and in legislating. 

The source verses for these mitzvot, Deut. 17:9 – 11, instructs that when there is a dispute or a doubt about what the Torah requires, Jews should go to the Temple to the authorities at that time and do what those authorities decide. We are instructed not to deviate from that decision.  Within that context the Sanhedrin made several types of decisions: they would directly interpret the words of the Torah, maintain earlier traditions about what the words of the Torah mean, use specific interpretive techniques to define the meaning of the words of the Torah.  Our author quotes the midrash halachah to demonstrate that the mitzvah to do what the rabbis instruct applies to all these situations.  The rabbis also legislated beyond what the Torah requires if they thought that legislation would benefit the community. Recall also that the halachic system assumes that it is possible for the Sanhedrin and for other rabbis to reach incorrect decisions.  (See mitzvah #120, which requires the Sanhedrin to bring a specific sacrifice in certain situations where the Sanhedrin makes an erroneous ruling.) 

In the shoresh section of mitzvah #496 the author explains that different people naturally reach different conclusions when exploring a given intellectual topic or designing community policy.  If each individual interpreted the Torah in his or her own way the community would be splintered, without shared norms.  People with minimum education or poor analytical skills would make poor decisions. Clearly there is a need for more centralized authority.  We are cautioned to pay careful attention to interpretations that have come down to us from earlier authorities, and to obey the dictates of the rabbinic leadership in our own time.  That is true even though those rabbis might be mistaken about some of their decisions.  When we think the rabbis are wrong, the rabbis may actually be right and we might actually be wrong.  Rabbis are human and sometimes make mistakes; they need a margin of error. An occasional misguided decision is better than anarchy.

When the Sanhedrin was functioning disputes were settled by a majority vote of the Sanhedrin.  Their decision would be binding on everyone. 

Even under that system, the members of a later court might disagree with the decision made by an earlier court.  The author mentions several factors that determine whether a later court may eliminate a prohibitive ruling made by an earlier court.  The later court can only change a prohibitive ruling if they are greater in number and knowledge than the court that made the ruling.  It is not clear how either part of this rule applies. Since the number of judges on the court is fixed, it is not clear how a later court could be greater in number.  Among other possibilities, “greater in number” might mean more votes for the ruling in the later court than in the earlier court or the number of followers of the rulings of each court. It is not clear how the later court determines whether they are greater in knowledge than the prior court.

 It is easier to change rulings that interpret the Torah than it is to change legislation.  According to our author, when a court creates prohibitive legislation, that legislation stands no matter what the opinion of later courts.  The author does not say what happens if the legislation is not accomplishing its purpose or if it has unpleasant unintended consequences.  And whether the later court can change the ruling also depends in part on whether the community has accepted the earlier ruling.  Presumably, if the prior court did not succeed in getting the community to comply with their prohibition, it is easier for the later court to change that ruling.  The author cautions rabbis to be very careful in overturning prohibitions that are already in place.

After the demise of the Sanhedrin things per force had to change.  The author discusses two passages from midrash agadah that discuss that period of transition. There was still a court functioning in the Galilee, but it was not officially the Sanhedrin.  The rabbis and the community struggled to determine what authority they still had.

One story reflects the conflict between Rabbi Eliezer and his colleagues about an issue of tumah. Rabbi Eliezer recalled a tradition that answered the question and made every argument he could think of in support of it, but the other rabbis were not convinced and decided for the opposite result. In desperation Rabbi Eliezer called on miracles to prove his point.  He called on a carob tree to uproot itself and move, a stream to reverse its direction, and the walls of the study hall of fall in.  His colleagues were not convinced.  Rabbi Eliezer asked a heavenly voice to confirm his opinion, and a voice proclaimed that Rabbi Eliezer is always correct in his halachic opinions.  Rabbi Yehoshua stopped the heavenly voice, saying  lo bashamayim hi,” that the halachic decision making process is a human, not a heavenly process.  Later one of the rabbis met Elijah and asked him what God thought of all this.  Elijah said God had laughed and said, “My children have overcome me.”

The author understands this story to mean that the process of decision making by majority vote determines the outcome.  God may know what a certain rule ought to be, but the majority vote trumps even that.  When the source of our behavior is preserved tradition we have no mechanism for dealing with new situations, and we don’t know what to do if we are lacking a tradition that answers the question at hand.  The rabbis in this story were facing a new situation, the destruction of the Temple and the demise of the Sanhedrin.  They could not rely on preserved tradition.  But they did rely on the mitzvah that mandates rabbinic decision making by majority vote.  They had to decide what to do on their own and to follow their own judgment even in the face of miracles that demonstrated they were wrong.

The author refers only to part of this story, creating a simplified punch line. The moral of the original story is more ambiguous.  In the original story the other rabbis put Rabbi Eliezer in herem, keeping him out of the halachic decision making process and putting him in social isolation.  Rabbi Eliezer accepted the herem but was bitter and angry.  God had lots of sympathy for Rabbi Eliezer’s anger. By the end of the story Rabban Gamliel, one of Rabbi Eliezer’s main opponents, ends up dead. 

When halachah was determined by majority vote of the Sanhedrin there would often have been dissenters.  We said earlier that a later court can disagree with a ruling made by an earlier court.  For that to happen it has to be possible for dissenters to continue to maintain and teach their dissenting views.  But if dissenters teach people to disobey the majority’s ruling we end up with exactly the chaos we were trying to avoid by having a centralized decision making process. 

Late in mitzvah/essay #496 the author explains how a dissenter may behave.  Suppose the Sanhedrin decided that some food was permitted.  Someone who was fit to be a member of the Sanhedrin disagreed and thought the food was prohibited.  (We learned earlier that not every scholar qualified to be a member of the Sanhedrin served in any given court session.)  That scholar may not eat the food unless he tries to convince the Sanhedrin that the food was prohibited. But if that scholar makes his arguments and is outvoted even that scholar may treat the food as permitted.

Deut. 17:12 says that a man who deliberately disobeys the judge or priest ministering before God should be killed.  The rabbis understood this verse to refer to a dissenting member of the Sanhedrin who continued to act on his dissenting opinion or to teach others to act on the dissenting opinion.  The dissenter can continue to teach his own opinion as a theoretical possibility, but may not rely on it in practice or encourage others to rely on it in practice. 

The author illustrates the principle of following the decisions of majority votes in the Sanhedrin with the famous story of Rabbi Yehoshua’s dissent told in Rosh haShanah 25a. Rabbi Yehoshua dissented from the decision of the rest of the rabbis about which day was Yom Kippur.  Rabban Gamliel, the head of the rabbinic court, required Rabbi Yehoshua to violate the d’oraita prohibitions on the day Rabbis Yehoshua considered Yom Kippur by appearing on that day carrying his wallet and walking stick.  Rabbi Yehoshua complied.  Two additional aspects of this story are worth pointing out.  In the story we saw earlier both Rabbi Yehoshua and Rabban Gamliel were proponents of the proposition that majority vote trumps.  But as in that story, we are no longer dealing with the Sanhedrin meeting in its designated space in the Temple complex.

A dissenter is potentially subject to the death penalty whether the dissenter is stricter or more lenient than the majority.  But for the dissenter to be punishable the dissenter must be fully qualified to be a member of the Sanhedrin and the disputed ruling had to have been made by the Sanhedrin in its dedicated space in the Temple compound.  The dissenter must have participated in the deliberation and expressed his dissenting opinion.

The dissenter is only subject to the death penalty if the consequences of the disagreement could somehow lead to a punishment of karet if the act was fully deliberate and requiring a hattat sacrifice is the act was done without full intent.  So disagreements about things like whether some animal fat is helev or certain questions of tumah and taharah would qualify. That rule sounds like very few possible dissents would be punishable. But more things can lead to behavior potentially punishable by karet than one would think.  For example, a disagreement about establishing the calendar could lead someone to eat hametz on Passover.  Or consider a disagreement about ownership of property where the Sanhedrin rules that a given man owns some property and a dissenter says someone else owns the property.  The man uses that property as the gift to effectuate a wedding. Another man, relying on the dissenting opinion, thinks the wife isn’t married.  If he has sex with her that sex act is adultery, potentially punishable by karet if done with full intent and with the requirement to bring a hattat sacrifice if done without full intent.  Some apparently innocuous decisions have far reaching consequences.

The author says this mitzvah applies to everyone at all times.  A dissenting scholar who participated in the Sanhedrin deliberations and continues to follow his own opinion or teach others to follow his dissenting opinion is potentially subject to the death penalty.  The author says other Jews who disobey this mitzvah are not punishable at all, and that result is based on a rule that I don’t think we have seen before.  Specifically, if violation of a negative mitzvah is somehow connected to a potential death penalty, any other violation of that negative mitzvah is not punishable at all.

The author describes a dispute between Rambam and Ramban about the scope of this mitzvah that gets to the fundamental basis for rabbinic authority.  We know from the source verses that there has to be some case where this mitzvah requires that Jews obey rabbinic authority, but it is hard to figure out what that case is.

Rambam holds that the obligation to obey rabbinic authority applies to a wide variety of rabbinic decisions: rabbinic traditions about what the Torah means, the rabbis’ interpretation of the Torah based on their own intellectual inquiry; rabbinic interpretation of the Torah based on standard interpretive techniques; and rabbinic legislation to help Jews avoid violating mitzvot of the Torah, and even institutions entirely created by the rabbis like Purim and Hanukah. So these mitzvot apply to exactly those things we expect rabbinic scholars to do: preserve the tradition, apply it to new situations, and legislate to keep the Jewish community from going off track.  That list seems to be referring to acts of the Sanhedrin, so it is not clear how it would apply with less centralized rabbinic authority.  Even as to the Sanhedrin, Jews are instructed to obey rabbinic authority within the scope of halachah, not outside that realm.

Ramban, with whom our author agrees, points out problems with that approach. (The author quotes Ramban at length.  That quote is noticeable because the Ramban’s writing style tends to be verbose and because Ramban gives so many examples to support his points.) In particular, Rambam’s interpretation merges d’rabanan authority with d’oraita authority.  When someone violates a d’rabanan rule, according to Rambam, that person automatically also violates these mitzvot d’oraita.  But Ramban lists many ways in which the Talmud treats d’rabanan rules differently from d’oraita rules.  In cases of doubt we are told to rule leniently for d’rabanan issues but strictly in d’oraita issues.  Under Rambam’s approach, though, every apparently d’rabanan issue is really a d’oraita issue so we would always rule strictly.  Similarly, children can help establish facts for cases controlled by d’rabanan rules but not for d’oraita rules. The punishment for violating a rabbinic prohibition is different from the penalty for violating a Biblical prohibition. Ramban gives several other examples, but we don’t need to track through the details of those examples to understand the main point.

Rambam’s approach is particularly ironic given that Rambam understood the mitzvah that prohibits adding to the Torah to require carefully distinction between d’oraita and d’rabanan requirements.  Rambam could accommodate that problem by arguing that there is still a difference between a rule that originated as a d’oraita and a rule that originated d’rabanan.  Whatever the details, though, Rambam roots all rabbinic authority in these mitzvot.

Ramban holds that the mitzvot requiring Jews to follow rabbinic rulings only refer to cases where the rabbis are determining d’oraita rules: when the rabbis are ruling based on an earlier tradition, or are carefully reading the words of the Torah to give those words definitive halachic meaning, or are applying standard interpretive techniques to determine d’oraita rules. That opinion keeps the realm of rabbinic rulings about Torah law distinct from rabbinic legislation.  The Torah only requires us to follow rabbinic rulings about Torah law, but we are required to follow those rabbinic rulings even when we are convinced those rulings are incorrect. And only a scholar who teaches that we should not obey rabbinic rulings about these things or who himself follows his own dissenting opinions on those matters is potentially punishable with the death penalty.

 Ramban’s approach has its own problem, though.  It leaves us with no source for an obligation to follow rabbinic legislation, either the rabbis of the Sanhedrin or more modern rabbis. Our author says that according to Ramban the obligation to follow rabbinic legislation is only slightly related to these mitzvot but our author does not define that relationship. Ramban undoubtedly thinks Jews are required to follow rabbinic legislation, but from the discussion we have here it is not clear why. 

 After the demise of the Sanhedrin, with no central decision making authority, individual rabbis and courts in various communities had to decide for themselves what they thought the Torah meant and what new legislation the community might need.  The author implies that those of greater knowledge should be authoritative.  If authorities of equal stature disagreed Jews should follow the stricter ruling on d’oraita issues and the lenient ruling on d’rabanan issues.

The author warns us to carefully follow the rules promulgated by contemporary rabbis.  But these mitzvot continue to be vitally important and subject to dispute.

Our author says several times that we are required to obey the rabbis even if we think they are wrong.  The source verse says we should not stray from rabbinic thinking “either to the right of to the left,” and our author twice quotes the Rashi’s interpretation that Jews should obey the rabbis even if the rabbis rule that right is left or left is right.  But we saw in mitzvah #120 that we ought not obey the rabbis when rabbinic opinion is too obviously wrong.  The Talmud Yerushalmi comments on the source verse that we ought not obey the rabbis if the rabbis tell us that right is left or left is right. We need both the notion that for the sake of unity the rabbinic authorities should be obeyed, and the notion that we ought not to follow the rabbis when they go too far astray.

Even under a broad reading of rabbinic authority some areas of halachah are more subject to rabbinic authority than others.  It makes sense for a rabbinic scholar to decide whether the dairy food someone cooked in a meaty pot is or is not forbidden.  But other areas may not be subject to scholarly mandates.  Rabbi Soloveichik said that when someone asked him how to allocate charitable contributions all he could do was to explain the principles and leave the final allocation to the donor.  Some halachic decisions are inherently left to the individual.  (I don’t have a citation for this opinion, but I personally heard Rabbi Soloveichik say that.)  There can, of course, be disagreement about which areas of halachah are inherently subject to individual decision making.

The traditional genres of halachic literature are replete with attempt to preserve disagreements between earlier rabbis.  Presumably there is something to be gained by studying those disagreements, but these mitzvah/essays do not explain what role those disagreements should have in later halachic decision making.

Rambam and Ramban agree that these mitzvot give Jews a Torah obligation to obey rabbinic interpretation of the Torah.  Those interpretations arose in the Roman era, or earlier, and that was a very different world from ours.  These mitzvah/essays give no sense of how to adjust ancient rules to fit changing conditions.  It is not surprising that our author does not raise that issue, since his world was not so different from the world of the tanaim.  It is harder for us to ignore the differences.

Our author lived in a medieval world much more hierarchical than our modern world, where each person was born into a community that was almost impossible to escape.  In our world each person gets to belong to whatever group the person wishes simply by self-identifying, and can change that group affiliation easily and quickly.  We can still appreciate the need for some unified practice among Jews but we can no longer count on Jews who disagree with those rules to stay within the Jewish community.  Even if rabbis theoretically have broad authority, it may or may not be beneficial to the Jewish community for those rabbis to try to assert that authority.  Of course, the rabbis who think they have authority to tell other Jews what to do may want to exert that authority and may think everyone will benefit if they do assert that authority.

Our author’s discussion of these mitzvot does not consider the role of autonomy, a concept so basic to Western intellectual thinking that in the modern world it cannot be ignored.  But giving too large a role to autonomy will result in exactly the kind of anarchy our author says these mitzvot were intended to prevent.

Disagreement about these mitzvot and the role of autonomy is central to denominational divisions in our current Jewish community.  To speak very broadly, the Reform movement puts emphasis on autonomy rather than rabbinic authority.  The Conservative movement, at least in theory, adheres to halachah but leaves current rabbis much more autonomy to change prior Jewish law to accommodate current conditions and changing views of morality.

But the issue of autonomy arises in the Orthodox community as well.  There is extensive dispute about which current rabbis ought to be considered authoritative. The role of practical decision maker has shifted from the community rabbis to the heads of academic institutions.  Many current rabbis do not have the kind of broad general education that our author said they need to have in order to make practical decisions for ordinary Jews. There is a common notion that rabbis’ opinions should be obeyed even when the rabbis are speaking outside of their recognized expertise in areas of halachah.