By Shmuli Phillips and מרדכי איש ימיני
In what feels almost like a footnote to the detailed account of the search for Yitzchak’s spouse, Chaye Sarah concludes with details of Avraham’s final marriage – to Keturah. Unlike Avraham’s previous marital setup, he now appears to be following his son's monogamous arrangement which the Torah has described in glowing terms: “And Yitzchak brought her to the tent of Sarah his mother, and he took Rivka, and she became his wife, and he loved her. And Isaac was comforted for his mother”.
About 1,000 years ago in Germany, R’ Gershom ben Yehuda arranged a mass gathering of sages to issue decrees which, among other things, would seek to formalise this disapproval of polygamy into an outright ban. The ban took hold across European Jewish communities which, to this day, have ceased to practice any form of polygamy. Nevertheless, certain challenges have been posed to the legal status of R’ Gershom’s rulings. One question relates to the intended length of the ban, a matter discussed by R’ Gil Student in this post - https://www.torahmusings.com/2011/07/polygamy-a-bad-idea/.
A more fundamental challenge however relates to the very legality and binding nature of any Rabbinic edict in the post-Talmudic era. In his introduction to Mishneh Torah, Rambam contrasts the legal status of rulings issued before and after the conclusion of the Babylonian Talmud:
Ravina, R’ Ashi and their colleagues [compilers of the Babylonian Talmud] represent the final era of the great Sages of Israel who transmitted the Oral Law. They passed decrees, ordained practices, and put into effect customs. These decrees, ordinances, and customs spread out among the entire Jewish people in all the places where they lived…
Every Court that was established after the conclusion of the Talmud, regardless of the country in which it was established, issued decrees, enacted ordinances, and established customs for the people of that country - or those of several countries. These practices, however, were not accepted throughout the Jewish people, because of the distance between [their different] settlements and the disruption of communication [between them].
As a result of this lower legal status of post-Talmudic rulings:
People in one country could not be compelled to follow the practices of another country, nor is one court required to sanction decrees which another court had declared in its locale. Similarly, if one of the Geonim interpreted the path of judgment in a certain way, while the court which arose afterward interpreted the proper approach to the matter in a different way, the [opinion of the] first [need] not be adhered to [absolutely]. Rather, whichever [position] appears to be correct - whether the first or the last - is accepted.
Taken at face value, Rambam’s words have severe implications for the binding nature of post-Talmudic bans against polygamy (and similarly kitniyot on Pesach). It would appear that the authority of such rulings would be limited to the specific time and place of the Beit Din which issued the decree.
Creative suggestions have been made to find basis for binding post-Talmudic Rabbinic law. R’ Yosef Karo argues that broad consensus among sages can in itself generate binding legal status. This is explained by R’ Elchanan Wasserman to mean that a consensus/unanimous agreement of sages creates some form of “National Rabbinic Authority” which is equivalent to the ruling of Sanhedrin [for more on these suggestions see chap. 61 at https://judaismreclaimed.com/sample/). The implications of such arguments for the status of R’ Gershom’s polygamy edict are spelled out by Rabbeinu Asher: “His decrees are established as if they were given from Sinai because [the people] accepted them upon themselves and transmitted them generation after generation”.
Nevertheless, the simple meaning of Rambam’s words remains that unless a law was duly discussed and voted upon on the “senate floor” of a National Court – seemingly including the Talmudic Courts of Ravina and R’ Ashi – then it has no binding authority. Therefore, even if we accept that polygamy and kitniyot were banned in Franco-Germanic lands by a properly constituted local Beit Din, and that these bans were widely accepted, they were never properly restated by subsequent courts in Europe or Sephardic communities. The procedural requirement for such bans to remain legally binding was not met and therefore polygamy and kitniyot would not be forbidden halachically for any Jews today, regardless of their ethnicity.
It is important to note that this post specifically addresses the status of R’ Gershom’s ruling according to Rambam’s understanding of the halachic system. In countries where polygamy is illegal under secular law it would be forbidden to practice it under the principle that laws of the land have halachic status dine demalchuta dina. [EDIT: SEE THE FACEBOOK COMMENTS SECTION WHERE THIS HAS BEEN DISPUTED].
On a separate note, Rambam’s teaching can be understood to challenge popular distinctions for purposes of law and custom between Ashkenazim and Sepharadim (and subdivisions within these groups). What is halachically binding is the ruling of a Beit Din. What may superficially appear to have been an ethnic division of halacha or custom between different halachic communities may, in reality, merely be the result of different Courts under different circumstances that ruled to the best of their understanding.
According to Rambam, the only permanent and universally binding laws and customs are those issued or affirmed by the last National Court ruling, the Talmud’s conclusions. There is no valid ethnic divide for halachah or custom between European and Middle-Eastern or North-African Jews. In the post-Talmudic era, we are all bound to follow the enactments of the Beit Din in our locale regardless of our ethnicity. The notion of two such Courts in one locale, even a separate Sephardic and Ashkenazi Court, may be (even biblically) forbidden and can invalidate both courts. How Rambam’s ruling can be applied practically in today’s era of the global village and multi-ethnic Jewish communities presents the opportunity for some fascinating discussion.
First posted on Facebook 11 November 2020, here.
