Last year at this time I wrote
about the mitzvah of building the Beis Hamikdash, and that we should actively
doing all we can to aid its fuflfillment directly (as well as indirectly
through teshuva).[1] This year I
have decided to write about a different, less prominent aspect of Churban that
remains with us, and is also incumbent upon us to fix.
In How does halacha work? I wrote
that ideally all major halachic debates would be settled by the Sanhderin, and
described at length what our options are without the Sanhedrin. Here I will
point out many of the problems that arise due to the absence of the Sanhedrin,
attempt to plot a (long) path to its restoration, and explain why all of this
makes sense.
Lack of halachic clarity
In my view, the main problem with
the inability to settle halachic arguments finally is not the discord that this
can create. On the contrary, we have the ability to get over our differences
and grow from the fact that there are different opinions which we respect. The
problem is the resultant lack of clarity and understanding in the minds of
those who are not learned enough to take part in these debates, and sadly also
in the minds of many who do take part. It is this lack of clarity that I
regularly try to tackle in this blog.
The problem is most noticeable
with the new questions arising with modern technology. Often there is no
precedent that can be learned from with any intellectual honesty. What is
really needed is the power to rule authoritatively on these issues ex nihilo,
and where necessary to make new rabbinic institutions. Without this there is a
tendency to fudge the issues, causing a great deal of confusion.[2]
Problems with no solutions
Sometimes this lack of authority
leads to more serious problems. In cases of doubt we are often forced to make
people’s lives hard by being overly stringent, or to compromise Torah values by
being overly lenient. Depending on the issue, the price paid for going in
either direction can be very high. In a physical world there will always be
problems that are unsolvable even with the help of Sanhedrin,[3] but
without Sanhedrin there are far more of these problems.
One such issue is any question
involving agunot (‘chained’ women who cannot remarry halachically).
Being strict can make the life of the agunah a misery. Being erroneously
lenient causes one of the most severe transgressions, and if the mistake is
confirmed (eg. if the ‘dead’ husband shows up) the lives of many people can
become a misery.
When the question is the
verification of the husband’s death, the help Sanhedrin can provide is limited
(although here also with modern warfare and means of identification an halachic
update is required). Nowadays though, the more common problem is the husband
who is alive but unwilling to agree to his wife’s reasonable request for a
divorce.
Chazal had few halachic problems
in this field. A divorce legitimately forced upon the husband is valid.[4] All
they had to do was to formulate rules for which circumstances justify the
demand of divorce, and in such cases force the issue. Obviously when the demand
was unfounded, there was no need to enforce anything.
When there is no body with
absolute halachic power, this becomes much more problematic. The rishonim
differ extensively in their interpretations of the rules set by Chazal, leaving
us with a large number of cases where are hands are tied. If we feel that divorce
is appropriate and that the requirements set by Chazal have been met, we
technically have the right to act accordingly. However, if there is significant
opposition we have no way of forcing one side to concede, and ruling leniently
may bring even more pain on those we are trying to help.[5]
Limited powers
Another problem with no good
solution is how to manage during shemita. If farmers keep to the ideal, not
selling any shemita produce, they will very soon be out of business for the
other six years as well.[6] The
various methods used to attempt to solve this problem are all problematic
halachically, as well as failing to achieve the rest and equality that the
Torah wanted.[7]
Here Chazal described how the
issue was once managed. Leaving everyone to take produce for themselves was not
practical, as there would be no way of ensuring that people take what they need
for their families alone. Instead the agents of Beis Din would carry out all
the harvesting and distribution, where necessary confiscating from those who
had too much.[8] As they
were in the service of the public, the prohibition of guarding shemita produce
did not apply.
The modern solution of Otzar Beis
Din is an attempt to restore this model, with the farmers themselves being
agents of Beis Din. However, even if we assume that the leniencies on guarding
apply even to a private Beis Din, this method is far from perfect. As all
produce is ownerless, anyone can start his own Beis Din and compete. The
landowner has no right to limit access to the Beis Din of his choice. Only the
Sanhedrin would have the halachic power to restore order. [9]
Korbanos
We daven constantly for the
ability to bring korbanos. Most people don’t realise that this is also somewhat
dependent on the restoration of the Sanhedrin. Korbanos can be brought even
without a Beis Hamidash,[10] and
one of the biggest halachic obstacles we have is the problem of tumah (ritual
impurity).
Tumah can be pushed aside for the
sake of public korbanos, but only if we have a sanctified tzitz (the headplate
worn by the Kohen Gadol).[11]
Machon Hamikdash have made a tzitz, but in order to sanctify it we will need to
appoint a Kohen Gadol to wear it.[12] The
appointment of a Kohen Gadol requires Sanhedrin.[13]
How can the Sanhedrin be
re-established?
In order for someone to serve on
the Sanhedrin, he needs to have semicha (ordination) from someone who himself
has semicha, in an unbroken chain from Moshe Rabbeinu.[14]
After this chain has been broken, how can it ever be started again?
The Rambam writes that it seems
to him that if all the Chachamim in Eretz Yisrael agree to appoint dayanim and
give them semicha, this is valid. He concludes that this matter still requires
decision.[15] I have
already written in How does
halacha work? that Sanhedrin represent all the talmidei chachamim, and that
it therefore makes sense that we have no Sanhderin the only replacement is the
agreement of virtually all the talmidei chachamim. Here only those in Eretz
Yisrael are relevant, as semicha can only be given in Eretz Yisrael.[16]
In the sixteenth century, an
attempt was made to apply this ruling of the Rambam. Most of the talmidei
chachamim lived in Tzfat, and they agreed to give semicha to the Mahari Beirav.
He in turn gave semicha to others.[17]
However, they made a grave mistake. For reasons that are unclear, they failed
to consult the Maharalbach, a leading authority who lived in Yerushalayim.
The Maharalbach wrote Kuntras
Hasmicha where he attacked the chachamim of Tzfat, writing many arguments why
this semicha was invalid. Although many of his arguments were disputable, one
was not. This semicha certainly did not have the approval of all the chachamim.
Attempts were made to achieve this approval retrospectively, but it was too late.
What can we do now?
Clearly, achieving consensus
nowadays is a mammoth task. If a tiny community could not do this, for us it
seems impossible. But if there is a will, and a lot of effort is put in by a
lot of people over a long period of time, I believe that it can be done.
The first stage is to work
towards bringing rabbis together to discuss differing views of the issues of
the day. The aim of restoring the Sanhedrin need not be mentioned at first, as
doubtless not all will agree that this is the right thing to do halachically.
An interim body can be set up with representation for all the many sectors of
our society, at first just to confer and understand the different views.
Later, agreement may be reached
that on some issues it is important to be united, and in order to achieve this,
the minority will have to concede to the majority. Eventually the question of
the Sanhedrin can be raised, and if a significant majority are in favour
discussion of how to implement this can start.
Sadly, at the moment we are a
long way away even from the first stage. Even within the same sectors and
sub-sectors, there often are rabbis who refuse to talk to others. Sometimes
they may even have legitimate reasons, but if they can be persuaded that the
potential gain is phenomenal maybe they will back down. If not, then maybe we
are undeserving of all the benefits the Sanhedrin could bring.
Please help with any ideas!
[3] See Moreh
Nevuchim 3:10
[4] Gitin 88b.
The reason for this is not relevant for this discussion.
[5] One
partial solution is to look for means of persuasion that are not defined as
coercion. For many years excommunication was a powerful tool used with broad
halachic consensus (see Rema, Even Haezer 154:21. See also Pischei Teshuva
ibid. 30 and Ateres Devorah siman 30). Nowadays excommunication often will not
solve the problem, and there is no effective alternative that is agreed upon
halachically.
[6] The
promise of bounty in the sixth year given by the Torah is not applicable
nowadays, see Sema 67:2. Although some dispute this, reality has proved them
wrong.
[7] G-d willing
I will explain in about four years time.
[8] Tosefta
Shevi’is ch. 8
[9] To be
honest, even after this halachic problem is solved by the Sanhedrin, the
solution of Otzar Beis Din in the modern world may remain problematic
philosophically. The cost of labour will probably mean that shemita will remain
more costly for all.
[10] See Eduyos
8:6 and Rambam Beis Habchira 6:15.
[11] See Yoma
8a and Rambam Bias Mikdash 4:15.
[12] See
Sanhedrin 16b
[13] Tosefta
Sanhedrin ch. 3, Rambam Klei Hamikdash 4:15
[14] Rambam
Sanhedrin 4:1 (see the edition of Rav Kapach or Frankel, in older editions
there is a printing mistake).
[15] Sanhedrin
4:11
[16] Sanhedrin
14a
[17] See Kiryat
Sefer (of the Mabit), Sanhedrin ch. 4
