How can a rabbinic ruling be binding in a post-Sanhedrin era?

Yesterday’s Torah reading contained a passage of fundamental importance to the notion of rabbinic law: that of the Rebellious Elder. We read of how, when a difficult legal question of any kind arises, it is to be sent to the judges present at the Mikdash whose ruling is then considered strictly binding.

Relatively few of the rabbinic laws, interpretations and decrees which are observed today, however, can be knowingly traced back to a Court seated in its Chambers of Hewn Stone – its Mikdash headquarters. Most of our Halachot reach us through the Mishnah and Talmud which were compiled by gatherings of sages long after the Sanhedrin had departed from its scripturally envisaged location.

So what exactly are the required qualifications of a Court or gathering in order to make its rulings halachically binding? This is a question that both Judaism Reclaimed and Talmud Reclaimed grapple with.

While it may seem obvious to us today that rulings of the sages can bind us even when the Sanhedrin has been exiled – or even ceased to function – this is not entirely evident from the Torah’s text and may once have been a matter of dispute. In the famed episode of the oven of Achnai, Rabbi Eliezer refused to accept the majority ruling of his colleagues, instead calling successfully for miraculous confirmation of his lone opinion. Commenting on Rabbi Eliezer’s position Ramban states remarkably that, had such an episode transpired at a time when the Sanhedrin was seated in its Chamber of Hewn Stone, Rabbi Eliezer himself could have been tried as a Rebellious Elder! Was Rabbi Eliezer essentially challenging the notion that a Sanhedrin in exile could issue authoritative rulings?

The settled position of Jewish tradition has granted Sanhedrins such authority even when they are not located in their scripturally-ordained Mikdash chambers. Presumably, their location is understood to represent an ideal rather than a mandatory condition. Such a suggestion might draw support from the group of 70 sages established by Moshe in the desert (and which likely presided also in the years immediately following entry into the Land) which lacked any formal chambers. It also seems likely that the Sanhedrin of the Hasmoneans – sometimes based outside Jerusalem – and perhaps the Men of the Great Assembly issued binding rulings from alternative locations.

As well as the Court’s location being forgone as a critical requirement, we see that its priestly character was also viewed as an ideal which could be set aside rather than a strict requirement. While the Torah states (Devarim 17:9):

“And you shall come to the Levitic kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment.”

Rambam confirms the rabbinic position (Hil. Sanhedrin 2:2) that while it is a mitzvah for there to be Priests and Levites present on the Court, “but if appropriate ones are not found, it is permissible for all the judges to be Israelites”.

By the time we arrive at the Mishnah and Talmud, the criteria for binding and authoritative rulings are again applied more loosely. The Court of Rabbi Yehuda HaNasi was not a formal Sanhedrin. Yet it was unanimously deemed authoritative in that it included all of the nation’s greatest sages, who voted on and established laws which were considered to be binding.

What might be the basis for this?

According to Rabbi Yosef Karo in his Kessef Mishneh commentary, this binding status arises from some kind of collective acceptance of the laws legislated by the Mishnah. A process which was apparently repeated at the sealing of the Talmudic era thereby imbuing its conclusions with binding authority. But how was such an acceptance reached and on what basis could it be supported in the Torah and transmitted tradition.

Rav Elchanan Wasserman and Rabbi Jose Faur opt for an alternative suggestion – one which seems to have basis in the Epistle of Sherira Gaon. According to Rav Elchanan, the fundamental feature of a Sanhedrin which lends it legal importance is that embodies “National Rabbinic Authority”. Such a status can be achieved through a formal Sanhedrin body, whose rulings are binding. But this is not the only way. If a gathering of sages is unanimously approved by all of Israel, this can also grant it Sanhedrin-type status.

Such wide approval appears to have been achieved by Rabbi Yehuda HaNasi’s Yeshiva which voted the Mishnah into Jewish law. Similarly, writes Rav Sherirah Gaon, the rulings of the Sura yeshiva of Ravina and Rav Ashi assumed binding authority due to the fact that all other Babylonian academies subordinated themselves to it. As the Gemara itself notes, “there was not found Torah and greatness in one place” from the time of Rabbi Yehuda HaNasi until Rav Ashi. Therefore what preceded Rav Ashi “undone” but what Rav Ashi ruled upon would remain permanent.

The unclear factor in all of this is the status of the Yerushalmi and the acquiescence of the community in the Land of Israel. While it is known that the Jews in Israel were suffering severe persecution which led many of them to immigrate to Bavel (including many notable sages) – were there any remaining Yeshivot? Did these Yeshivot, assuming they existed, also accept the authority of Ravina and Rav Ashi? We certainly know of disputes between Bavli and Yerushalmi Geonim centuries later: do these reflect a gulf which can be traced all the way back to the sealing of the Talmud or was it prompted by a community of returning Israelites who sought to resurrect the old Yerushalmi practices and rulings?

And what of the status of the Yerushalmi? We don’t hear of any claim that it gained unanimous acceptance. There was a Sanhedrin (albeit not very active) still functioning in the Land of Israel at the time – perhaps that Sanhedrin is what granted the Yerushalmi its authority. Assuming, that is, that the Yerushalmi bears authoritative status.

The position of the Rambam and Rif is that the Yerushalmi does indeed possess binding authority via one of these mechanisms, but that it was superseded by the “Court” of the Bavli. Therefore, when the Bavli rules explicitly against the Yerushalmi its law is followed. But in areas where the Bavli is either silent or deemed to be insufficiently clear, the ruling of the Yerushalmi remains binding and authoritative.

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Kiddushin: are the rabbis in control?

One of the primary themes of my upcoming Talmud Reclaimed (currently being printed) is an effort to analyse and delineate which parts of the Talmud are understood to represent core Sinaitic material, and which laws are subsequent legislative additions by the Sages and Courts.

What’s the big deal you might ask?

Well one small case study, which features in the Daf Yomi’s commencement of Kiddushin today, demonstrates the immense implications of how we categorise Talmudic laws.

An illustration of these far-reaching implications can be found in Rambam’s rulings concerning the laws of marriage. The standard text near the start of his Hilchot Ishut describes three possible methods through which a marriage can be effected:

Through the transfer of money, through the tansfer of a formal document and through sexual relations. The methods of sexual relations and formal document have their origin in the Torah, while the method of transfer of money is rabbinically legislated [divrei soferim]

While it seems clear that Rambam regards the method of money transfer as a rabbinically-legislated detail of Torah law, an alternative version of the text’s conclusion features in Rabbi Yosef Kapach’s edition of Mishneh Torah, replacing divrei soferim with “the effectiveness of all three have their origin in the Torah”. This version, which can be found in certain manuscripts, was claimed by both Meiri and Rambam’s own son, Rabbi Avraham, to have been written after Rambam retracted his earlier position towards the end of his life.

The method of creating marriage by means of money transfer appears in the Talmud (at the start of Kiddushin) to be created hermeneutically by means of a gezerah shavah. Does this mean the sages in the Talmud were actually creating a new hitherto unknown method of forming marriage or are they merely identifying a scriptural source for a transmitted Sinaitic tradition?

Rambam’s position on the matter depends on which manuscript of Mishneh Torah is assumed to be authentic.

Rambam’s retraction, which views the gezerah shavah merely as a convenient aide-memoire for a previously known Sinaitic tradition, demonstrates the general complexity involved with trying to identify those apparently hermeneutical derivations which are actually consolidating laws that were transmitted through the tradition.

The practical implications for a future Sanhedrin of whether the standard version of Mishneh Torah or its claimed revision is the correct version are enormous. If the method of money-transfer is understood to be of purely biblical origin, this would place it beyond the reach of the Sanhedrin’s legislative powers. Significantly, however, if the method is to be identified as a rabbinically-legislated detail, this would suggest that the sages have legal authority to innovate novel formulas through which marriage could be formed. Such an innovation could, in theory, pave the way to an entirely different approach within Jewish law to marriage, divorce and help to address agunah issues.

Further questions present themselves: If the sages really do possess so much power to legislate details of Torah law through a Sanhedrin-type body, do laws that they create become fully-fledged biblical laws in the same way as those received at Sinai? To what extent can such laws be said to reflect God’s will and further His intent behind those commandments?

First posted to Facebook 15 August 2023, here.