Friday 28 July 2017

'Ubitul Sanhedreya'

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

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