How does halacha work?

For those who know me well, it will come as no surprise that I chose this topic for my first post. There is much confusion around about who has the right to give halachic rulings, what a legitimate ‘opinion’ is, and what the simple person is supposed to do when two rabbis have three or more views as to what the halacha is. I will do my best to clarify the truth here, as contrary to what one might expect there is very little disagreement about the fundamentals.

To do this it is critical to explain the rules in an ideal world (where the Sanhedrin have the last word on everything), the world we live in today, and interim situations.

In an ideal world

The Torah tells us explicitly what we are supposed to do in the event of a halachic dispute[1]:

כִּי יִפָּלֵא מִמְּךָ דָבָר לַמִּשְׁפָּט בֵּין דָּם לְדָם בֵּין דִּין לְדִין וּבֵין נֶגַע לָנֶגַע דִּבְרֵי רִיבֹת בִּשְׁעָרֶיךָ וְקַמְתָּ וְעָלִיתָ אֶל הַמָּקוֹם אֲשֶׁר יִבְחַר יְקֹוָק אֱלֹקֶיךָ בּוֹ: וּבָאתָ אֶל הַכֹּהֲנִים הַלְוִיִּם וְאֶל הַשֹּׁפֵט אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם וְדָרַשְׁתָּ וְהִגִּידוּ לְךָ אֵת דְּבַר הַמִּשְׁפָּט: וְעָשִׂיתָ עַל פִּי הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ מִן הַמָּקוֹם הַהוּא אֲשֶׁר יִבְחַר יְקֹוָק וְשָׁמַרְתָּ לַעֲשׂוֹת כְּכֹל אֲשֶׁר יוֹרוּךָ: עַל פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ וְעַל הַמִּשְׁפָּט אֲשֶׁר יֹאמְרוּ לְךָ תַּעֲשֶׂה לֹא תָסוּר מִן הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ יָמִין וּשְׂמֹאל.

(דברים יז ח-יא)

“When a matter of justice will be hidden from you, whether between types of blood, financial rulings or negaim, matters of dispute in your gateways, you must arise and ascend to the place that Hashem your G-d will choose. You will come to the levite kohanim, and to the judge that will be in those days, and seek out and thy will tell you the matter of justice. You must proceed based upon the word that they tell you, from that place that Hashem will choose, and be careful to do according to all that they rule for you. Act based on the Torah that they teach you, and the justice that they say to you, do not deviate right or left from the word that they tell you.”[2]

Chazal derive that the authority we must consult here is the Sanhedrin, comprising of 71 halachic experts ordained by their predecessors forming a chain back to Moshe Rabbeinu.[3] They describe the Sanhedrin as the court from which the Torah emanates to all of Israel.[4] Based on this, the Rambam writes:

בית דין הגדול שבירושלים הם עיקר תורה שבעל פה, והם עמודי ההוראה ומהם חק ומשפט יוצא לכל ישראל, ועליהן הבטיחה תורה שנאמר על פי התורה אשר יורוך זו מצות עשה, וכל המאמין במשה רבינו ובתורתו חייב לסמוך מעשה הדת עליהן ולישען עליהן.

(ממרים א, א)

“The High Court of Law in Yerushalayim is the root of the Oral Torah, they are the pillars of halachic ruling and from them statutes and justice emanates to all Israel. The Torah assures us about them, as it says ‘based on the Torah that they teach you’- this is a positive commandment. Anyone who believes in Moshe Rabbeinu and his Torah is obligated to base all religious acts on them, and to trust in them.”[5]

So in the ideal world of the Sanhedrin, there is very little room for ambiguity.[6] But even then, one question is critical. What happens if the Sanhedrin differs with their predecessors? Are they forever bound by previous rulings? In regards to disputes in the interpretation of the Torah, the answer is clear. The Sanhedrin in every generation has the authority to rule differently to its predecessors, irrespective of prowess.[7] Rescinding rabbinical decrees of a previous authority is somewhat more complicated,[8] but this is not relevant to our discussion.

Without the Sanhedrin

We have not had a Sanhedrin since approximately the year CE 425,[9] during the Amoraic period. However, one crucial development means that there is no need for us to try to research which halachic rulings were given by the Sanhedrin and which were not. The Rambam writes in his introduction to Yad Hachazaka:

כל הדברים שבגמרא הבבלי חייבין כל ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמי הגמרא ולגזור גזירותם וללכת בתקנותם. הואיל וכל אותם הדברים שבגמרא הסכימו עליהם כל ישראל. ואותם החכמים שהתקינו או שגזרו או שהנהיגו או שדנו דין ולמדו שהמשפט כך הוא, הם כל חכמי ישראל או רובם והם ששמעו הקבלה בעקרי התורה כולה דור אחר דור עד משה רבינו עליו השלום.

“All of Israel are obligated to follow the words of the Gemara Bavli, and we force every city and every country to practice all the customs that the sages of the gemara initiated, to enforce their decrees and to follow their institutions. This is due to the fact that all these matters in the gemara were agreed upon by all Israel, and those sages that instituted, decreed, initiated, judged and derived that the law is such, were all the sages of Israel or most of them. They are the ones who heard the tradition of the fundamentals of the entire Torah, generation after generation back from Moshe Rabbeinu ע"ה.”

Much has been written in interpretation of these words of the Rambam. The pertinent question is how to understand the connection between the two factors mentioned, the agreement of ‘all Israel’ and that of ‘all the sages of Israel or most of them’.

In my view, any obligation to follow specific rulings must be due to something modelled on the Sanhedrin.[10] No other option is sufficient to explain how these rulings can be binding on those who were not born at the time, have no knowledge of them, and even those who actively reject them.[11] To explain how the Rambam arrived at this conclusion, we need to understand the rationale behind the power that the Torah gives to the Sanhedrin.

To me it is clear from the pesukim quoted above that the Sanhedrin is the Torah’s solution to the inevitable problem of disagreements over the understanding of the Torah.[12] It is necessary to have a body that can act as the agent of the Jewish people to preside over these matters, otherwise ‘each man will do what is fit in his eyes’.[13] Obviously, these people must be both learned and of impeccable character to undertake this great task. The Torah set rules for appointing this body,[14] and thereby considered its rulings as part and parcel of the Torah itself.[15]

When there is no such body, the only thing that we can fall back on is something more basic, if less practical. If ‘all the sages of Israel or most of them’ agree about something, there is no need for the technicalities of the Sanhedrin. It is clear that this is the way that the Torah is to be understood, at least until the sages of a different generation agree to something different. This is what happened with the sages of the Talmud Bavli, even if there was no formal convention that decided this.

There is one important proviso to all of this. Even the power of the Sanhedrin is dependent on the agreement of Klal Yisrael over their authority,[16] and it follows that the Talmud Bavli also had to be accepted by Klal Yisrael. At the same time, any acceptance of Klal Yisrael has validity only if it is based on an acceptance of Torah sages as an authority.

The post-talmudic period

What happened with the Talmud Bavli has never since been replicated. The result of this is that since then, any halachic ruling is merely an interpretation of the gemara and the sources preceding it. No later authority is binding on the Jewish people as a whole, and in principle anyone has the right to disagree with anything written in the post-talmudic period. This is hinted to by the gemara itself ,[17] and confirmed by the Rishonim.[18]

In practice, throughout the generations the majority of rabbis have been reluctant to exercise this right. This is certainly understandable, and the decision to revoke rulings that have been accepted for decades and even centuries must not be taken lightly. However, there has also always been a minority who have been prepared to do this,[19] and the legitimacy of their approach has never been questioned.

Modern day fallacies

Nowadays it is very common to hear the misconception that certain seforim or rabbis cannot be argued with. Where did all this come from? I believe that it started from a misunderstanding of the words of R’ Yosef Karo in his introduction to Beis Yosef. There he explains that he formulated his (loosely applied[20]) rule of following the Rif, Rambam and Rosh due to the lack of ability to determine the halacha independently. The bulk of the Sefardi poskim accepted this, and even many of the Ashkenazim who didn’t came up with similar alternatives.[21]

The reality is that neither the Beis Yosef, his followers, or the Rema and the Ashkenazi poskim meant to start a revolution. The idea of setting guidelines for who to follow in the case of disputes exists already in the gemara,[22] and even most of the Amoraim did not usually argure with their predecessors.[23] But as with the rules in the gemara, these guidelines were meant only for those who did not feel able to decide each case for themselves.[24]

This situation where everyone has the right to decide for themselves is by no means ideal, and the lack of any authority with the power to have the last word is the cause of many of the problems we see today. Furthermore, what one who is not learned enough to rule for himself is supposed to do with multiple opinions is often unclear. It is easy to see why some try to solve all of this by distorting the truth, but my firm view is that this is counter-productive. May we merit to see the fulfilment of the prophecy “I will restore your judges to their original state.”[25]

---

[1] Whether the same rules apply to a philosophical dispute or not requires further analysis.

[2] Devarim 17:8-11

[3] See Sanhedrin 86b-87a, 13b-14a

[4] Ibid. 86b

[5] Mamrim 1:1. A straightforward reading of this indicates that not only must we follow their rulings in practice, but we must also trust that this indeed is the correct interpretation of the Torah.

[6] See Sanhedrin 88b that disputes did not last long during the time of the Sanhedrin.

[7] Rambam Mamrim 2:1. To the best of my knowledge no-one disputes this.

[8] See Rambam Mamrim 2:2-4 and Ra’avad there for a starting point.

[9] See https://en.wikipedia.org/wiki/Sanhedrin.

[10] See Kovetz Shiurim, Kuntres Divrei Sofrim, Siman 2 who also assumes that the Rambam means that ‘all the sages of Israel or most of them’ have the same power as the Sanhedrin, although he seems to limit this only to when they are convened together in one place.

[11] Although the Ramban in Mishpat Hacherem has a novel idea that communal nedarim are binding on subsequent generations (a view that there is no evidence that the Rambam accepts), nedarim can only create new obligations and prohibitions. Here we need to explain the power of a halachic authority to issue even lenient rulings. Furthermore, the Ramban explicitly requires even communal nedarim to  be accepted verbally, and makes an exception to this only for charamim (excommunication and similar bans).

The conclusions of this post could be made even if the authority of the gemara was due to communal acceptance alone. However, I believe that it is crucial to disprove this theory not just for the sake of truth, but also because of mistakes that could be derived from it. For example, if the power of the gemara stems from communal acceptance, presumably communities such as the Ethiopian Jews would not be bound by it.

[12] As well as making enactments reflective of the needs of the times.

[13] The recurring lament of Sefer Shoftim.

[14] They are codified by the Rambam in the beginning of Hilchos Sanhedrin.

[15] R’ Soloveitchik in Kovetz Chidushei Torah, starting from page 51, brings further proofs to the idea that the Sanhedrin represents the entire Jewish people.

[16] See Rambam Mamrim 2:6 that a decree not accepted by most of the community is invalid.

[17] Bava Metzia 86a

[18] The Rambam in his introduction to Yad Hachazaka explains that after the completion of the Talmud, even though the Geonim continued to lead the yeshivas in Bavel, the Jewish People dispersed and each place developed its own customs. Thus one community could not enforce its practices on another. This is echoed by the Rosh in Sanhedrin (perek 4, siman 6), who says that anyone has the right to disagree with the Geonim, as ‘Yiftach in his generation is like Shmuel in his generation’ (Rosh Hashana 25b). Even the Ra’avad there agrees in principle, but merely stipulates the need for a ‘clear difficulty’ with the rulings of the Geonim in order to do this.

[19] Eg. the Maharshal, Shach, Vilna Gaon and the Sha’agat Arye. Maharal at the end of chapter 15 of Nesiv Hatorah, and R’ Moshe Feinstein in his introduction to the Igros Moshe clearly prefer this method.

[20] See Darkei Moshe there.

[21] The Rema in his introduction argues that Ashkenazim should follow the traditions of the Ashkenazi poskim.

[22] See Eruvin 46b.

[23] They seemingly have the right to argue, as Rav indeed does on occasion. Even the other Amora’im are rarely particular about conforming to the precise language of the Tana’im.

[24] This should be obvious from what we have explained already, and the Chazon Ish confirms it in Choshen Mishpat, Likutim, siman 1. Even though many Sefardi poskim sometimes seem to indicate that the authority of the Shulchan Aruch is absolute, this is clearly not meant 100% literally. All of them rule against the Shulchan Aruch themselves on numerous occasions.

[25] Yeshaya 1:26