Talmud Reclaimed and grappling with a frozen halachah

When we assess the impact that thousands of years of exile have inflicted on our nation, our thoughts are understandably drawn to the weighty toll of human suffering and to the loss of sovereignty over our land. What we often ignore is the grave damage which has been wreaked on the Torah—the national treasure of the Jewish people.

In fact, we have become so accustomed to the Torah in its stunted exilic form that we are unable to appreciate the extent to which our relationship with it has been defined by the stagnation of halachah. The passage of over 1,500 years without a functioning Sanhedrin has led us to revere the halachic status quo to such an extent that descriptions of the Court’s legislative powers, and suggestions of how these may once again be employed at an unspecified future time, are likely to provoke considerable discomfort and even whispered claims of heresy. 

Judaism Reclaimed cites Rabbi Meir Simchah of Dvinsk’s Meshech Chochmah commentary to the Tochecha passage of rebukes and curses that we read yesterday. Explaining the words “I will break the pride of your strength [ge’on uzchem]”, the Meshech Chochmah understands this to be a reference to the Sanhedrin – the supreme court which was empowered to interpret the Torah, and to innovate and institute decrees in order to make the Torah’s core teachings more relatable to the needs and realities of each generation. In the legal system envisaged by the Torah, the Court was empowered to maintain and update Torah law in accordance with the rules transmitted to them.

As explained by the Rambam in his introduction to the Mishnah, the Oral Law consists of two categories. The first category is a core of transmitted teachings which convey the Torah’s primary intentions, and are understood to have been transmitted intact throughout the generations from Sinai. This core, explains Rambam, lies beyond the scope of judicial interference and reinterpretation or rabbinic dispute. The second category, by contrast, is made up of finer details of the commandments and was delegated to the sages to legislate through the Beit Din HaGadol. These details of biblical law – even once legislated – could be revisited by a future court if it considered that the Torah could best be interpreted differently, or that the needs and realities of the nation had evolved.

But how are we to know which Talmudic laws belong to which category? Long intricate passages and chapters of Talmud debate numerous details of biblical laws. Surely it is crucial for us to know which of these are understood to represent God’s eternal word and which were subsequently legislated additions?

Which laws would be within the legitimate scope of a new Sanhedrin to revisit and potentially amend or repeal? This is particularly important for the modern student of Talmud for whom numerous passages seem to be entirely at odds with current social and ethical values. When are we required to accept these teachings nevertheless as the immutable word of God and when is it legitimate to suggest that, had Ravina and Rav Ashi been compiling the Talmud in the 21st century, certain chapters would have been unrecognisably different from the Tractates in front of us today? And if we are to suppose that certain passages are primarily a reflection of social reality and values from a very different society, how are we supposed to approach the task of studying them in today’s world?

Shockingly, such questions are almost entirely absent from standard Talmudic curricula today. Yet these are questions that the sages of the Mishnah and Talmud were acutely sensitive to – and occupied not only their thought but also that of earlier generations of Talmudic commentators.

My upcoming Talmud Reclaimed: An ancient text in the modern era (which goes to print in a couple of months) seeks to tackle these questions along with many others, showing how they were approached by our greatest sages.

We pray daily for a restoration of the sort of Supreme Sanhedrin Court which we possessed as a nation in ancient times. While present day politics and factional infighting makes such a vision appear distant, at the very least we can prepare the ground for a new Court by focusing our study of Talmudic law around a recognition of these two very different categories that run through its Tractates and asking ourselves what scope a duly empowered Court would have to revisit many of its conclusions.

First posted on Facebook 14 May 2023, here.

Post-Talmudic authority and the elusive status of a 'rishon'

One of the frustrating realities of publishing a book is the need to terminate one’s never-ending pursuit of perfecting the manuscript; not just in terms of stylistic improvements but also for identifying and verifying one’s sources. In an attempt to ensure that my books are reliably sourced, I was very reluctant to include citations that I could not personally verify – however supportive and tantalizing they may appear.

One such source that would have added significantly to my analysis of post-Talmudic authority in chapter 6 of Talmud Reclaimed was a recording of a shiur by Rav Herschel Shachter on the topic, in which he stated as a tradition from the Gra that

“when a qualified talmid chakham analyzes a halakhic topic and determines the pesak halakhah with certainty, and then sees that the Shulchan Arukh rules differently, the talmid chakham may not follow the view of the Shulkhan Arukh. To do so, he maintains, would be a violation of the Torah prohibition Lo sisa pnei dal v’lo sehedar pnei gadol – Do not favor the poor; do not honor the great. Just as a dayan is forbidden to tilt his judgment in favor of a litigant who is poor, or one who is wealthy and distinguished, so too in a matter of practical halakhah, a talmid chakham may not pasken in favor of the Shulchan Arukh against his own conclusion.”

This quote now appears – fully sourced – in Rav Schachter’s newly-released Divrei Soferim which I picked up on my recent trip to America. It appears to bolster the way in which Talmud Reclaimed develops Rambam’s approach to the concept of post-Talmudic halachic authority.

As presented by Rambam in his introduction to Mishneh Torah, “Ravina, Rav Ashi, and their colleagues represent the final era of the great Sages of Israel who transmitted the Oral Law…all the matters mentioned by the Babylonian Talmud are incumbent on the entire Jewish people to follow”. Such broad and binding authority was never achieved in subsequent scattered and squabbling generations. As a result “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”.

The position expressed by Rambam appears to have been followed for many centuries after the Talmud’s conclusion. While Geonim and their legal rulings were revered and respected, Rishonim from France to North Africa did not hold back from expressing their own views and interpretations of halacha, even when this put them into conflict with earlier post-Talmudic rulings. In some ways it may even be seen as a mark of respect that Tosafot so often quoted and explained the earlier opinion of Rashi – before proceeding to dispute it.

Talmud Reclaimed tracks how this attitude gradually changed in the aftermath of the Tosafists, and in particular the Shulchan Aruch’s codification – despite strongly-worded protests from leading contemporary scholars such as the Maharal and Maharshal. It argues that one consequence of the creativity which the Tosafists reintroduced into the halachic process is that halachic rulings became increasingly associated with and reliant upon the scholarship and personality of the Sage who made the ruling.

Earlier methodologies of Rif, Rambam and Rashi had focused more on identifying simple conclusions of primary Talmudic passages. This is reflected by the relative infrequency of major disputes between them, and in Rambam’s stating that he did not need to provide sources for his rulings in Mishneh Torah since they were all believed to be simple Talmudic conclusions. Tosafot, in contrast, attempted to reconcile numerous Talmudic passages and principles before reaching a legal ruling. This process required them to introduce a whole range of innovative features, logical arguments and contextualisations. It also meant that the process of halachic determination became far more subjective – and therefore more associated with the authority of the rabbi who formulated it.

This newfound post-Talmudic innovation, coupled with the rise of kabbalah and its tendency to maximize the level of divine-inspiration which its sages were believed to receive, led to the birth of a new concept: The post-Talmudic “authority of a Rishon” and then of the Shulchan Aruch.

The passage cited above from Rav Schachter’s new book is fascinating in that it highlights how the Gra appeared to return to the earlier principles of post-Talmudic authority. His insistence on ruling according to simple conclusions of Talmudic passages – even where earlier post-Talmudic authorities disagree – is a defining feature of his halachic methodology which often brought him close to the halachic (if not philosophical) positions of Rambam.

See more at www.TalmudReclaimed.com.

First posted on Facebook 25 February 2024, here.

Is polygamy prohibited? The halachic status of post-Talmudic rulings and customs

 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”.

Judaism Reclaimed highlights the Torah’s negative attitude towards polygamy: monogamous marriage is frequently invoked by the prophets as a symbol of the union between God and the Jewish People, while polygamy is compared to polytheism and idolatrous worship. This strong sentiment against polygamy is further reflected in the fact that prophets and sages were not known to have had more than one wife, unless under the most exceptional circumstances.

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.

Shu"t First, Ask Questions Later

Thanks so much to Rav Moshe Kurtz for hosting a fascinating discussion on his "Shu"t First Ask Questions Later" podcast, where we discussed fundamental principles of whether there can be binding rabbinic authority in the post-Talmudic era in the context of a dispute between Rambam and a Rosh Yeshiva of Bavel... 

https://www.facebook.com/photo/?fbid=3773061649591147&set=a.1376575852573084

Nu, who got the reference??

https://open.spotify.com/episode/3sFsT7d2mqTf86hqFpoTtr...

A pleasure learning from Rabbi Shmuli Phillips! Info and the best links for buying books are at www.TalmudReclaimed.com.

First published on Facebook 16 May 2024