In the legal system envisaged by the Torah, the court was empowered to maintain and update Torah law. It was charged with doing so in a way which would maximise its relevance and applicability to each generation. This outcome was to be achieved not only by enacting various forms of rabbinic decree but also, more significantly, by drawing upon the extensive expertise and wisdom of the court’s members to legislate details of Torah law.
In a lengthy discussion on the repercussions of exile threatened in the tochachah, Rabbi Meir Simcha of Dvinsk (Meshech Chochmah) describes the dynamic role performed by the Sanhedrin of innovating (in accordance with the rules transmitted to them) in order to ensure that the Torah was suited to guide each generation according to its needs. Quoting Rambam's introduction to Mishneh Torah, he laments that one result of exile was the consequential diminution of Torah scholarship, and total loss of the Sanhedrin which therefore necessitated the fixing and recording of the Oral Law. Since the close of the Talmudic era, however, no Beit Din has had authority to issue binding national rulings or innovate any matter of Torah law. This inability to legislate, Meshech Chochmah continues, has led to a questioning of the Torah's continued relevance and application in a modern era, and is an inevitable result of the exile predicted in the tochachah.
On a theoretical level, Rambam cautiously raises the possibility of the reintroduction of a national Sanhedrin which would have the power to revisit halachic determinations of the Talmud as well as the ability to legislate in order to address some of the challenges posed to Judaism in the modern world:
It appears to me that if all the sages of the Land of Israel consent to appoint dayanim (judges) and grant them semichah (ordination), they have the legal status of musmachim and they can judge penalty cases and are authorized to grant semichah to others [thus restoring Biblical ordination]… However, this matter requires a final decision. [Hilchot Sanhedrin 4:11]
It is difficult to advise exactly how a new Sanhedrin should go about its task. On the one hand, two millennia of stagnation have left the halachic system with a long list of pressing needs, from resolving the anguish of agunot to clarifying and legislating details of Shabbat restrictions—particularly as they are to apply in a modern Jewish state. On the other hand, however, if even the Amoraim were willing to restrict their creative legislative powers out of recognition that their knowledge was inferior to that of earlier generations, would dayanim on a newly-formed Sanhedrin be expected to be similarly circumspect? In his introduction to Mishneh Torah, Rambam acknowledged that the decline of Torah knowledge was not limited to the era of the sages. Even in his own era:
At this time, we have been beset by additional difficulties, everyone feels [financial] pressure, the wisdom of our Sages has become lost, and the comprehension of our men of understanding has become hidden. Therefore those explanations, laws, and replies which the Geonim composed and considered to be fully explained material have become difficult to grasp in our age, and only a select few comprehend these matters in the proper way. Needless to say, [there is confusion] with regard to the Talmud itself…
From the perspective of today’s minimally functioning halachic system, this is a conundrum which we can only dream of grappling with. On a practical level, the far greater challenge would be creating this court in the first place – the disunity and infighting which persists among Jewish communities in both Israel and the Diaspora makes the required unanimity hard to imagine.
As mentioned above, the re-establishment of a Sanhedrin in order to address the many challenges of Jewish law which have arisen in the past 2,000 years would require the acceptance of all sages in Israel. Jewish tradition teaches us that the Second Mikdash was destroyed, and the nation sent into exile, as a result of baseless hatred. It is perhaps fitting therefore that, in order for our nation to repair the damage that exile has inflicted on our system of halachah, we must find a way of uniting to universally approve and empower a body to make new and authoritative rulings on Torah law.
Our reaction to all-too-common scenarios in which halachah is unable to respond to modern challenges – and our witnessing of those suffering as a result – should not be restricted to shrugging our shoulders hiding behind our inability to amend rigid ancient rulings. Until we, as a nation, are prepared to set aside the petty squabbles and superficial differences through which we have become accustomed to defining our Judaism, we will be unable to appoint a new Sanhedrin and Jewish law will remain in its stultified exilic state. For me personally this is an important part of the tragedy of the destruction and exile which we mark on Tishe Be’Av. For agunot it is a tragedy which haunts their every living moment.
As we plead each day in the Shemoneh Esrei:
“Restore our judges as in earlier times…and remove from us sorrow and groaning”
First posted on Facebook 7 August 2022, here.
