How does the Torah empower judges to interpret its laws?

The legitimacy of the sages and Sanhedrin to rule upon and interpret Torah law has been a point of controversy for over 2,000 years. Josephus describes for us the deep divide between the priestly-aristocratic Sadducees, who did not follow received traditions, and the Pharisees with their oral tradition.

Rabbi D. Z. Hoffman argued that this debate over transmitted tradition and judicial interpretation of the Torah was only a small part of a bigger societal rift which was caused by the introduction of Hellenist influences into the Jewish world:

By relieving [the Jews] of all obligations placed on the people by the Sophrim, they [the Sadducees] permitted a freer life and thus were more appealing to the great and powerful than the strict Phariseeism. [The Highest Court pp174-5]

Taking a step back, what can we understand from the Torah’s text itself about what it envisages to be its legitimate mode of interpretation?

We read in last week’s parashah how, in the aftermath of the splitting of the sea, God communicated a set of laws for the nation to observe. These laws, which are traditionally understood to encompass Shabbat and civil laws, appear to have occupied the people greatly. When Yitro visits the nation he observes that they were coming to Moshe “from morning until evening” in order to receive legal guidance and judgment.

Regardless of how clear and comprehensive any legal teaching may be, it will always in practice generate novel cases and borderline scenarios that trigger legitimate debate as to the correct application of the law. Torah law, like all other legal systems, therefore required a system of judicial determination in order to clarify and develop the divine law and assist its application to new situations. Near the start of the 40-year sojourn in the desert, Yitro oversaw the establishing of a hierarchical judicial system for this very purpose: to clarify and rule upon new or complex legal challenges:

And they shall judge the people at all times, and it shall be that any major matter they shall bring to you, and they themselves shall judge every minor matter…

And they would judge the people at all times; the difficult case they would bring to Moses, but any minor case they themselves would judge.

At this early stage in Jewish legal history, the presence of an authenticated prophet with a divine hotline meant that there was no question as to the authority or accuracy of the laws which were being taught and clarified at the top of this system.

Later on the Plains of Moav, however, with Moshe contemplating his own imminent death and the nation’s turbulent transition from a miraculous desert existence to a sovereign nation in Israel, it was apparent that a significant judicial adjustment would be required. At this point, Moshe presented the divine command for a supreme court of Jewish law—a Beit Din HaGadol which would replace him at the top of the desert hierarchy. Instead of difficult cases being brought to him, as had been the practice up until this point, they would now be sent to the Sanhedrin in its chambers at the Mikdash.

If a matter is impossible for you in judgment, between blood and blood, between judgment and judgment, or between affliction and affliction, words of dispute in your cities, then you shall rise and go up to the place the Lord, your God, chooses. And you shall come to the kohanim-levi’im and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment.

In the absence of Moshe’s clear divine mandate to define and elucidate the commandments, this supreme court needed to be unambiguously invested with biblical authority to rule:

And you shall do according to the word they tell you, from the place the Lord will choose, and you shall observe to do according to all they rule for you. According to the law they rule for you and according to the judgment they say to you, you shall do; you shall not stray from the word they tell you, either right or left. And the man who acts intentionally, not obeying the kohen who stands there to serve the Lord, your God, or to the judge. That man shall die, and you shall abolish evil from Israel.

On this basis, the Torah is understood to have invested this court, which replaces Moshe as the supreme legal authority, with standing both to transmit the known body of laws and to issue rulings which can further clarify and define the Torah’s meaning and legal details.

According to Rambam’s understanding, the court has jurisdiction to rule and legislate concerning any of the finer details of biblical law that were not taught explicitly at Sinai (see further in my third essay in this Judaism Reclaimed sample - https://judaismreclaimed.com/sample/). This is seemingly a consequence of the verse framing the court’s role as “If a matter is impossible (ki yipoleh) for you in judgment” – laws which are clearly contained within the transmitted meaning of the text would appear to lie beyond the court’s jurisdiction. With regard to other details of law, however, a properly constituted Sanhedrin is granted a power of hora’ah (asher yorucha) through which they can interpret and define terms of the Torah’s text in order to legitimately clarify and determine details of Torah law.

First posted on Facebook 5 February 2023, here.

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.

Baba Kama: integrating halacha and Talmudic wisdom

One chapter of Talmud Reclaimed explores the complex relationship in Talmud study between the twin goals of determining practical halacha on the one hand and internalising Talmudic wisdom on the other. The chapter demonstrates how what was once an integrated and mutually beneficial approach to Talmud study has become increasingly bifurcated in recent centuries.

The pages which are currently being studied in the Daf Yomi cycle provide perfect examples of how the Talmud combines these two key tasks within its investigations and debates, which seek to clarify not only the practical laws which govern various forms of damage, but also their underlying conceptual characteristics. Tomorrow’s daf analyses aish – the heading of liability which governs damage to property caused by fire (or other wind-borne items that can inflict harm). The Torah imposes basic liability on a person who is responsible for a fire which causes damage to the property of another:

If a fire goes forth and finds thorns, and a stack of grain or standing grain or the field be consumed, the one who ignited the fire shall surely pay

Not satisfied with stating the practical laws which emerge from this verse and deriving the finer details of this form of liability, the Gemara presents a dispute between two early Amoraim from the Land of Israel which revolves around its underlying nature.

Liability for aish, explains Rabbi Yochanan, is mishum chitzav: belonging to the category of obligations that are imposed upon an individual by virtue of that person’s own act. Thus, in the same way as one is personally culpable for damage done by an arrow that he shoots, so too is the harm that results from a fire attributed directly to the person who negligently permitted it to spread into a neighbour’s property. 

A second opinion, that of Resh Lakish, considers instead that aish mishum mamono: liability for permitting a fire to spread out of control is more akin to failing to prevent one’s animals from causing damage to another person’s property. According to this opinion, one is not personally liable for fire damage, but only vicariously liable as owner of the property. The Talmud demonstrates that neither category is a perfect fit. The comparison of fire to an arrow is tenuous, since the damage that an arrow inflicts is caused directly by the human force which propelled it while a fire damages by burning rather than through human energy. Likewise, the comparison with damage inflicted by one’s property is challenged since, unlike livestock, fire is not considered to be something that one can acquire and own.

Despite acknowledging the substantial difficulties involved in fitting aish into either of these pre-existing categories of liability, the Talmud, is not prepared simply to record and clarify the law of fire as requiring compensation by the person who is responsible for its damage. Rather it insists that this apparently free-standing biblical law be conceptualised and then categorised in such a manner as to conform with broader principles – even if this requires an inelegant extension of the existing chitzov or mamono precedents.

This sort of attempt to analyse the underlying nature of laws and then to arrange them accordingly is one of the basic techniques that Brisk would later develop and popularise. At the conclusion of our passage from Baba Kama we even find one opinion adopting a trademark Brisk maneouvre of trei dinei, suggesting that liability for fire contains features of both chitzav and mamono, each one explaining legal details of aish that the other cannot.

Moving to a second example, which was studied in the daf earlier this week, it would seem that later Amoraim go out of their way to demonstrate the extent to which Jewish law applies its analytical principles consistently throughout the Talmud, deliberately clarifying practical laws on the basis of non-practical precedents:

Rava said: Whatever causes ritual contamination in [the activities of] a zav will in the case of damage involve full payment, whereas that which in [the activities of] a zav would not cause ritual contamination, will in the case-of damage involve only half damages.

The laws that determine the situations in which a zav causes defilement distinguish between scenarios where he was in physical contact with an object or person, and thereby contaminates it, and those where he throws an object and causes it to hit another. In this latter case, even though his force (kocho) makes an impact upon the second object, he does not cause it to become defiled. A zav can only transfer contamination through actual physical contact – even if this contact is quite remote, as occurs when the wagon in which he is sitting runs over an object. In the passage quoted above, Rava teaches that the laws of damages similarly distinguish between cases in which one’s animal causes damage by means of direct contact with the damaged object (where full compensation is payable) and where it causes a pebble to launch and thereby cause damage (where only partial compensation must be paid).

A parallel passage in Avodah Zarah (60b) sees Rav Ashi use the very same legal framework that governs the zav as a means of explaining the laws of yayin nesech – wine which, having been touched by an idolator, thereby becomes prohibited. Rav Ashi teaches that any wine with which an idolator comes into contact, even remotely, is subject to this prohibition. By applying the analogous case of the laws relating to the zav, he excludes from the scope of the prohibition a situation in which an object is thrown at the wine by an idolator. Significantly, the laws in these two highly practical areas of law are not taught independently. Rather, the later Amoraim identified Tannaitic precedent for how Jewish law defines the concepts of contact and force, even though that precedent is from an area of law which was no longer of practical concern even in the Talmudic era.

In building the laws of damages and the permissibility of certain wines upon a foundation of remote laws of ritual contamination, Rava and Rav Ashi can be seen as conveying a clear message: that the Talmud and its laws are one interrelated organic body which share the same underlying conceptual principles. Not only the commandment of Torah study but also the process of properly comprehending and determining practical law therefore require familiarity and expertise in all areas of the Talmud, not merely those of obvious practical relevance to contemporary Jewish society.

For more information visit www.TalmudReclaimed.com

First posted on Facebook 23 November 2023, here.

Tefillin on Chol HaMoed: can the Zohar challenge Talmudic law?

One of the central themes in Talmud Reclaimed (available in the US in the coming days) is a thorough exploration of the status of Talmudic law in the modern era. What does it mean to say that “Ravina and Rav Ashi are sof-hora’ah” [the conclusion of authoritative legal rulings]?

An important case study in this analysis relates to a halachic question with which many Jews are grappling with this week: should Tefillin be worn in the intermediate Chol Hamoed days of a festival?

The Talmudic law on this matter is somewhat ambiguous: while tefillin should not be worn on Shabbat and Yom Tov, it is unclear whether this extends to the less restrictive intermediate days of the festivals. Medieval halachic authorities were divided on the matter; while it was unanimously agreed that tefillinshould be worn on these days, they disputed whether a blessing should be recited since this was a situation of doubt. Rabbi Yosef Karo, however, sought to resolve the matter by introducing a strongly worded kabbalistic prohibition against performing this commandment on Chol Hamoed, adding that:

"… since our Talmud is inconclusive on the matter, who can dare to actively oppose the words of Rabbi Shimon bar Yochai who prohibits it so powerfully?"

As a result of Rabbi Karo’s reliance upon Rabbi Shimon bar Yochai’s mystical writings, the custom in Israel—and increasingly also in the rest of the world—is not to wear tefillin at all on these days, even without reciting a blessing.

Not all, however, were satisfied with Rabbi Karo’s conclusion. Rabbi Shlomo Luria, a leading authority in the same era, fought fiercely for the primacy of the Talmud in the process of determining Jewish law. Responding to Rabbi Karo’s embrace of Zoharic sources within the context of legal discussion he stated forcefully that

"even if Rabbi Shimon bar Yochai stood before us in order to change our practice we would not listen to him since in most matters the halachah does not accord with him."

Even for those who fully embraced the authenticity of the Zohar and considered that it represented ancient Jewish traditions, its teachings were predominantly regarded as belonging to the category of non-legal aggadah which is traditionally kept apart from Jewish law. This meant that strong opposition to the use of Kabbalah for the purpose of establishing halachah emerged even among those who accepted its mystical insights.

Prominent authorities such as the Bach, Chatam Sofer and Nodah BiYehudah similarly sought to exclude the input of mystical sources in the halachic process in rulings relating to sending away the mother bird and chalitzah. Nevertheless, popular practice in subsequent generations gradually approved and broadened the Shulchan Aruch’s innovation and, despite the concerns of notable scholars, it has increasingly been regarded as a legitimate source of Jewish law.

Nevertheless, a degree of uncertainty remains as to the level of legal authority which Kabbalah is to be accorded and how, precisely, it should be integrated into the pre-existing corpus of Talmudic teachings and rulings. As Rabbi Karo appeared to recognise, and as the Mishnah Berurah has more recently affirmed, kabbalistic teachings cannot be considered binding where they deviate from Talmudic sources. How strictly this theory is to be applied, however, has been subject to significant disagreement. Rabbi Menachem Azaria (Rama) MiPano, for example, ruled that the Zohar is to be followed even if this requires a stretched reading of the relevant Talmudic source in order to avoid a contradiction. Some of the rulings of Rabbi Karo himself appeared to apply kabbalah in a way that was inconsistent with how the Talmud had previously been understood.

The Vilna Gaon, meanwhile, is recorded as having cryptically asserted that “in no place is the Zohar in conflict with the Talmud”, adding that it is legitimate to base a stringent ruling upon the Zohar even when the Talmud is lenient. The context of the Gaon’s statement concerns whether one must refrain only from passing in front of a person who is praying, as the Talmud requires, or even from passing by in any direction, as the Zohar encourages. While the Gaon is prepared to view this simply as an added stringency rather than as a contradiction, Rabbi Yechiel Michel Epstein (Aruch HaShulchan) expresses great difficulty in accepting this kabbalistic stringency since it prohibits a practice that the Talmud clearly and unanimously permits.

Notwithstanding Rabbi Epstein’s objection, it is evident that numerous kabbalistic stringencies and customs have become seamlessly integrated into the body of commonly-practiced Jewish law as a result of their inclusion by Rabbi Karo in the Shulchan Aruch. In many circles, laws originating from Kabbalah are now regarded as more authoritative than those of the Talmud, with Rabbi Yosef Chaim from Baghdad (Ben Ish Chai) granting unchallengeable authority to the legal positions of the Arizal on the basis that they were divinely inspired, having been communicated by Eliyahu HaNavi.

The Ben Ish Chai’s position that the Zohar’s supernatural origin rendered its content halachically unassailable is itself vulnerable to challenge. Even if it could be ascertained that the Zohar and writings of the Arizal did originate with Eliyahu, it is still far from clear that they could be relied upon as part of the halachic process. The Talmudic rabbis contemplated the authority that might be accorded to supernatural input of Eliyahu within their debates and rejected the notion that this could influence the outcome to change an accepted practice:

If Eliyahu should come and declare…“chalitzah can be performed with a sandal”, we would not listen to him. [Yevamot 102a]

As Rambam explains, the rabbis of the Talmud were applying a fundamental principle of Jewish law of “it is not in Heaven!” which establishes that any attempt by a prophet to rely upon supernatural sources to determine halachah is invalid. Moreover, any prophet who attempts to do so actually demonstrates that he is a charlatan. In a powerful rejection of the suggestion that mystical sources can claim superior halachic authority over the Talmud on the basis of their supernatural origin, Rav Ovadyah Yosef wrote:

We have concluded “it is not in Heaven!” so what basis is there to set aside the mainstream legal authorities and instead grasp the words of the Arizal as if they were given to Moshe at Sinai?

First posted on Facebook 2 October 2023, here.

Why does Talmud Bavli enjoy halachic supremacy over Yerushalmi?

The Babylonian Talmud has enthralled and frustrated millions of dedicated students since first being published in 6th century Sura. Its apparently chaotic and challenging accounts of rabbinic debates over Jewish law have long formed the primary resource for subsequent scholars seeking to determine halachic rules and principles.

Often overlooked, however, is the Bavli’s older sibling compiled over a century earlier in the land of Israel. As Talmud Reclaimed explores, standard halachic tradition has long been based on the principle of the supremacy and binding nature of legal conclusions of the Babylonian Talmud – even if there are significant variations in the methodologies of how such conclusions are to be determined and implemented. While the Yerushalmi has not traditionally been accorded the same binding authority as the Bavli, neither has it been totally ignored and absent from the halachic process – even those who profess loyalty to the Bavli can sometimes be seen to have relied on the Yerushalmi too.

The uncertain status of the Yerushalmi and its mysterious overshadowing by the Bavli can be traced back to its earliest years. While its authorship is widely attributed to the first generation Amora, Rabbi Yochanan, what exactly was its authority? Was it approved by majority or collective of Palestinian scholars? Might it even have been approved by the Sanhedrin which was still sitting, albeit in limited and persecuted form, in the Land of Israel?

What is fascinating to note is that, while the Babylonian Talmud records numerous Palestinian voices and traditions within its pages and accords them great respect – often elevating their interpretations and traditions over those of its own sages – no mention is made at all of the existence of a Talmud from the Land of Israel. Given the great reverence with which the Bavli treats Rabbi Yochanan, the author of the Yerushalmi, why does it omit mention of his magnum opus? It is difficult to imagine that Babylonian rabbis were entirely unaware of this work.

One theory that has occurred to me is that it is actually inaccurate to refer to our Talmud as “Babylonian”. It is not only that Rabbi Yochanan is revered in the Bavli – he is one of its most frequent contributors. Together with Reish Lakish and other Amoraim from the Land of Israel, he ensures that there is a strong Palestinian voice and influence in almost every major discussion within the Bavli.

An important shift took place within the Talmudic world of Bavel during its 3-4th generation, as intense persecution shuttered the academies and courts within the Land of Israel sending its revered rabbis and considerable scholarship into Babylonian exile. This shift meant that fourth generation Babylonian sages, such as Abaye and Rava, now had the benefit of a vast array of traditions and interpretations that had not been available to their predecessors. As a result of this new information, a principle of halacha kebatra’i (law follows the latter authority) was introduced. Also from this generation, the Bavli no longer links rabbinic teachings back to earlier generations of Babylonian scholars as it did previously (e.g. Amar Rav Yehuda amar Rav) – seemingly because the pool of scholarship and traditions now meant that later generations were standing on the shoulders not only of their Babylonian predecessors, but of those of their Palestinian counterparts too.

In short, the later generations of Babylonian Amoraim, from Abaye and Rava through to Ravina and Rav Ashi who compiled the Talmud, represented the fruits of a joint tradition from Bavel and Eretz Yisrael. They sought to weave together and tease out the most authoritative, logical and practical traditions and interpretations and formalise them within the Babylonian Talmud. If this is true, it is not that the Yerushalmi was ignored – anymore than Rav and Shmuel were ignored. But that they were component parts of what was to become an all-encompassing compilation of the Oral Tradition.

Sherirah Gaon accords binding authority to the rulings of the Babylonian Talmud on account of the supremacy of Rav Ashi’s academy having been accepted by all other rival academies, an acceptance which Rav Elchanan Wasserman (among others) understands to have given it a quasi-Sanhedrin status. If we are correct in viewing the Yerushalmi as having been subsumed within Babylonian scholarship then it is far easier to deem Ravina and Rav Ashi’s Court to have represented some kind of National Rabbinic Authority. Independent historical sources from this era are hard to come by (some are analysed in Talmud Reclaimed), but it seems reasonable to suggest that at Rav Ashi’s time there was scant serious scholarship outside of Bavel which could challenge his authority.

By the time we reach the Geonic period we see a resurgence of Jewish communities and scholarship in the Land of Israel, and evidence of strong clashes between them and their Babylonian counterparts. While many of the divergences between Babylonian and Palestinian practice were limited to legitimate differences in minhag (such as prayer liturgy and triennial cycle of Torah reading), we also find disputes over halachic matters such as the observance of second day of Rosh Hashanah. The most high-profile and threatening “rebellion” against Babylonian authority came with an attempt to make significant changes to the Jewish calendar – an attempt which was forcefully defeated by Saadiah Gaon.

Ultimately, even Rambam and Rif, two powerful halachic authorities who prided themselves on their links to Babylonian Geonim, were openly prepared to draw upon Yerushalmi interpretations as long as these were not explicitly contradicted by later rulings of the Bavli. As the Rif stated at the end of his commentary to Eruvin, the reason for this is halacha kebatra’i. As with the teachings of early Babylonian Amoraim, the combined Yerushalmi-Bavli tradition woven together by Abaye and Rava through to Rav Ashi was taken to be superior to each of its individual component parts. A truly national Talmud.

For more information visit www.TalmudReclaimed.com

First posted on Facebook 24 December 2023, here.

Sepharadi and Ashkenazi Talmudic methodologies compared

 Here is a recording of my Shiur last night regarding the contrasting Talmudic and Halachic methodologies of Sepharad (Rambam, Rif and Geonim) on the one hand, and Ashkenaz -- represented by the Baalei Tosafot on the other.

First posted on Facebook 11 January 2024, 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.