Separation of Powers (repost)

I am reposting as this topic has become the main focus of Israeli current affairs over the past months, and some of the questions discussed below may be becoming more than just theoretical. To the below I would like to add just two points.

1. Whatever the balance of power is between the government and the judiciary, if those with the power do not act with integrity, there is no hope. Any system relies on such basic integrity, which has been so lacking and has been a significant factor in the breakdown of relations (I think almost everyone agrees to this, just of course each side blames the other for lack of integrity). If both the general electorate and the committees for selecting judges would seek 'men (or women) of truth' as a base requirement, rather than those who are on 'our team,' we would be in a much better place.

Edit (02/10/2023)

Unfortunately the original point 2 is no longer relevant, so I have crossed through and replaced with an alternative:

2. On a more positive note, while many on both sides are unwilling to discuss or negotiate, there has been a movement towards setting out reasoned arguments rather than just parrotting cliches. I get the sense that at least behind closed doors, the more sensible representatives of the various factions are listening to the arguments of others and refining their own proposals, such that there is hope that we will reach an arrangement that will ultimately improve the situation for all (or at least most).

2. Religious Jews (and others) should avoid making claims about whether the Torah is for or against the proposed reforms. The reality is, as explained below, the system of the Torah is very different both to the current system in Israel, and to any alternatives being proposed, such that inherently, the Torah is neither for or against. The debate should be regarding which system will work the best in the situation we find ourselves in, and this principle should be agreed to by those who accept the Torah and those who don't.

The Original Post (published 02/07/2020)

Over the past years, many laws passed by the Knesset have been revoked by the Supreme Court. Fierce arguments have been made within the legislature, judiciary and press regarding whether this process is desirable or acceptable in a democratic country.

This blog is not the place for these discussions, which are political in nature. At present, there has been tacit acceptance of the situation from the Knesset, and there is no real struggle for power between it and the Supreme Court.[1] While many individual Knesset members have expressed the need to adopt such a struggle, as yet no law has been passed which would limit (or clearly define) the current powers of the judiciary.

The question that I do feel has a place here is what would (or should) happen if a head-on clash does develop. If, for example, the Knesset legislated clearly that the Supreme Court will no longer have the right to revoke the laws that it passes,[2] and the Supreme Court attempted to revoke this new law, we would have a real battle on our hands.[3]

The government (the executive, who are responsible for implementing law) would need to decide whether to follow the Knesset (the legislature) or the Court (the judiciary). As the majority of the significant figures in the government are themselves part of the Knesset, we may expect them to be more sympathetic to their own decisions. However, in a situation so charged, it would be hard to predict whether rebellions (by the army, police, teachers, doctors and whoever else would normally take orders from the government) would prevent these decisions being carried out, leading to anarchy.

The Torah System

Any system based on separation of powers potentially faces similar questions. The Torah system also faces such an issue, despite having a completely different separation.

According to the Torah, the Sanhedrin fulfils a legislative role, albeit on a different scale to that of most modern democracies. The Sanhedrin is limited by an extensive constitution (the Torah, both Written and Oral), but has the power to make new institutions. The Sanhedrin is also entrusted with the interpretation of the Torah (the judicial role) and enforcement of law (the executive role).[4]

However, this is only one part of the picture. The king also has a part in all of the three roles (legislature, judiciary and executive). He can issue edicts, which are binding as long as they do not contradict the Torah.[5] He acts as a judge,[6] at least in respect to the laws that he makes.[7] Finally, implementation of laws and policies is the king's primary responsibility.[8]

The result of this is that within the Torah system, although there are no power struggles between legislature and judiciary (there is no separation between the two), there is a potential possibility of major clashes between the two bodies involved in both roles. However, as we shall see, the Torah (our 'constitution') also defines who has the power in different areas, and lays down rules for situations when agreement cannot be reached.

Defined Roles

The impression one gets from the examples in Tanach is that the legislative power of the king is a temporary one. He can instruct a person to undertake a task for him; he can also forbid a person from performing a particular action or from leaving a town or area. These commands are limited by the authority of the king who gives them, and become obsolete automatically after he dies.[9]

The Ran explains that the Sanhedrin has jurisdiction over Torah law, whereas the king's authority is in areas that are not Torah-related. We are no different to any other nation regarding the necessity to ensure that order and efficient management are maintained, and this is the responsibility of the king. As these requirements change with time, they cannot be fully covered by the Torah.[10]

There are also some areas of overlap. The Mishna tells us that if a king wants to wage a war that is not mandated by the Torah, he requires the permission of the Sanhedrin.[11] The same is true if he wishes to extend the boundaries of Jerusalem, or the courtyards of the Beis HaMikdash.[12] These decisions must be based on both Torah and national interests, so require both parties.

Despite the separation of roles, there would appear to be a clear hierarchy here. As the representatives of the Torah, the Sanhedrin can decide that the king's action are in breach of the 'constitution' and thus invalid. This can also be seen from the rules for appointing a king – the Sanhedrin must approve the decision.[13]

A Spiritual Leader

A potential difficulty with the Ran's approach is that Tanach seems to attach a great deal of importance to the spiritual level of the king. The Torah warns clearly that the king must study Torah and govern according to its words.[14] Throughout Sefer Melachim, perhaps the most persistent theme is that virtuous kings bring with them the assistance of G-d and vice versa, while the standard of the Sanhedrin is never mentioned explicitly.

I believe that the resolution to this lies in a more precise understanding of the respective roles of the Sanhedrin and the king. The Sanhedrin is the representative of the Torah (i.e. Hashem's word), charged with imparting it to the world and the Jewish People in particular.[15] The king is the representative of the people, responsible for leading them in both their physical and spiritual endeavours.[16]

Thus, when it comes to questions of halacha, the Sanhedrin is the sole adjudicator. However, the king is the person entrusted with ensuring that the Jewish People keep to the Torah. As a barometer for the spiritual level of the nation, he is far more significant than the Sanhedrin.

Furthermore, although the king may not sit on the Sanhedrin even if he is learned enough to do so,[17] a worthy king will take an active interest in the actions of the Sanhedrin and put ideas before them. Chazal tell us that the prohibition against the seclusion of a man and an unmarried woman was made following the incident of Amnon and Tamar.[18] Although they do not say explicitly who made this decree, the Rambam writes that it was "David HaMelech and his Beis Din."[19]

Practical Concerns

Chazal were also aware that practically, the one giving orders to the army and other officials would often have more power than the Sanhedrin. For this reason, the Mishna teaches us that a king cannot be tried in court.[20]

The gemara clarifies that this rule does not apply to the righteous kings of the House of David, as there is no inherent reason why a king cannot be judged. However, Chazal forbade judging the kings of Israel (the Northern Kingdom), after an incident involving a servant of Yanai, a wicked king in the times of the Second Beis HaMikdash.[21] Yanai used his power to influence the ruling of the majority of the judges, and when the head of the Sanhedrin, Shimon ben Shetach, realised this, he cursed the corrupt judges and the angel Gavriel crushed them to death.

At this point, Chazal realised that although in an ideal world no-one is above the law, when attempting to enforce this is futile we are better off accepting some level of injustice. They stepped in and instituted that a king cannot judge or be judged.[22]

Conclusion

If there ever were (or will be) power struggles between the king and the Sanhedrin, the Sanhedrin should have the upper hand. Whether or not this actually happens will ultimately depend on how God-fearing the king is, which will often be a function of the level of the nation as a whole.

Although the democratic system of today is worlds away, there are parallels to be drawn. The legislature, elected by the people, perform a similar role to the king – they are our representatives and their performance is to a significant degree a reflection of the character of the nation. One who perceives secular law in a similar light to that which we see the Torah in, may insist that the judiciary should be above the elected officials. Ultimately, the government decides whether to accept this position or not.

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[1] The one exception that I can think of was the refusal of the Speaker of the Knesset to abide by a court ruling ordering a vote on his own position. As he instead resigned his post, the short-term effect of this decision was negligible, although many claim that this created an important precedent. Time will tell.

[2] Making this new law a 'Basic Law,' which would not be deferential to any existing laws.

[3] I will not discuss here whether this situation should be avoided at all costs, and if so who is responsible for preventing it.

[4] See Rambam, Hilchos Sanhedrin 1:1 who writes that the actions of the 'policemen' are on the sole instructions of the judges.

[5] Rambam, Hilchos Melachim 3:8-9, based on Sanhedrin 49a.

[6] Ibid. 4:10

[7] See Torah Temimah, Devarim 17:19 (footnote 94).

[8] This is clear throughout Tanach. The Torah requires the king not just to be responsible for implementation, but also to play an acting lead role. See Bamidbar 27:17.

[9] The Scriptural source of this power, in Yehoshua 1:18, indicates that the only transgression involved is disobedience.

[10] Drashos HaRan, Drush 11. The Ran actually writes that the purpose of the mitzvos of the Torah is entirely unrelated to keeping order and efficiency, but the distinction that he draws remains valid even if we dispute this point (as the Rambam and others do – see Torah and Morals).

[11] Sanhedrin 2a and 20b.

[12] Ibid. See also Shevuos 14a, where we are told that making these additions also requires the approval of a prophet and the Urim v'Tumim.

[13] Tosefta, Sanhedrin ch. 3. The members of the Sanhedrin themselves are appointed internally; see Rambam Hilchos Sanhedrin 2:8, based on Tosefta, Horayos ch. 2.

[14] Devarim 17:18-20

[15] See How does halacha work?

[16] Although the king is supposed to be chosen by Hashem (Devarim 17:15), and for this reason the Sanhedrin's approval is required, it is ultimately the people who appoint him (see Ramban ibid., who struggles with the apparent contradiction between Hashem choosing the king and at the same time giving instructions as to who the people may appoint).

[17] Sanhedrin 18b. The reason is a technical one – were the king to be part of the Sanhedrin, the other members would likely be scared to argue with him.

[18] Sanhedrin 21a-b.

[19] Hilchos Isurei Biah 22:3.

[20] Sanhedrin 18a.

[21] It appears that 'kings of Israel' does not refer solely to the kings of the Northern Kingdom – Yanai lived long after their demise. This term was used to describe any non-Davidic kings, or perhaps even descendants of David HaMelech who did not follow in his path. The Sanhedrin would need to decide at the time whether it would be productive to try the king in court.

[22] Sanhedrin 19a-b. I will leave it up to the readers to judge whether any comparisons can be made to contemporary events.

Protecting Criminals

Disclaimer: While this is strictly a blog for spreading Torah, this particular post is light on Torah sources as the source for much of this material is common sense. The main Torah-related claim here is that no part of the Torah contradicts anything I have written here - if anyone disagrees (and I know that they do), I would be happy to hear their arguments and refute any such reading of Torah sources.

Introduction

Every nation produces criminals, and the Jewish People is no exception. When we have lived autonomously, we have always had methods of fighting crime internally, whether through the punishments that exist within halacha or through the power given to our leadership to institute extra measures where necessary.[1]

Over the past few hundred years, Jews were gradually granted the same protection given by states to their non-Jewish citizens.[2] The flip side of this was the loss of Jewish autonomy, and the need to rely on the state for law enforcement. I already wrote in You shall pursue justice that under these circumstances, provided that the non-Jewish (or non-religious) criminal courts act fairly, reporting crime to the relevant authorities is certainly permitted (not doing so would usually be irresponsible).

Even in modern countries today, there are some cases where non-Jewish courts do not act fairly. In one case a few years ago, the Jewish fraudster Sholom Rubashkin was sentenced to jail for a disproportionately long period in the US and appropriately, a long and ultimately successful campaign was fought to secure his release.[3] Just as parents should love and care for their children despite any misdemeanours that they might commit, the Jewish People must not turn its back on Jewish criminals.

This is, however, no excuse for treating criminals as heroes. Sadly, much chilul Hashem has been caused by Rubashkin going on several well-attended speaking tours of Jewish communities across the world (for the avoidance of doubt, his talks are about trusting in Hashem and not about doing teshuva for his crimes).

Other cases are less clear-cut, for various reasons. This post will deal with a few examples of some high-profile Jewish criminals and alleged criminals, and the issues that they raise.

Espionage

Jonathan Pollard is viewed in Israel in an overwhelmingly positive light. Not only was he imprisoned for an anomalously long period, the popular view is that the only crimes he committed were to mitigate misconduct on the part of the US government, who were endangering Israel's security by withholding information. If this were true, his actions were wholly justified and there would not be much to discuss.

This narrative is strongly disputed, and the reality is that the nature of the field prevents us from knowing the whole truth. We can however point out a few general principles. Firstly, in theory, espionage should never be necessary between true allies. Information that is critically important to know should be shared, and this should not cause any damage to either party. Similarly, just as individuals are entitled to privacy where appropriate, countries should respect each other's right to keep some information private where it is not critical for security.

In practice, 'true allies' are at best hard to find and possibly non-existent. It is a well-known adage that countries have no friends or enemies, only interests. If espionage is an established feature of international politics, no-one should be surprised or appalled if they become a victim of it. If enlisting a citizen of an allied country to spy on that country is a tactic used by the US, imposing such a severe penalty on a US citizen for performing the same service for an allied country is morally problematic.

Either way, in this case Israel decided to conduct espionage of this nature. Whether this was right or wrong, the country owes a debt of gratitude to the person who helped them. It is therefore understandable that the country honours Jonathan Pollard, and that Israeli citizens trust the judgement of their government regarding an issue that is subject to many unknowns.

Extradition

Sometimes it is clear that an individual should face trial for a crime committed (or allegedly committed), but there is a question as to where this trial should take place. Typically, this will occur when a criminal flees the country in which the crime was committed. At least in principle, most countries accept the idea of forcibly returning the offender, so that they can be tried by the relevant country's legal system.

The reason for this is that different laws apply in different countries. Some actions may be illegal in some countries and permitted in others (e.g. jaywalking or bigamy); even heinous crimes like murder are treated with varying severity depending on the country. States generally accept the jurisdiction of other states over crimes committed within their borders, so that the laws of each country only apply within that country's borders.

It is therefore usually not legally possible for a court in one country to try someone for crimes committed in another. This has the potential for allowing criminals to escape justice by fleeing, and in order to prevent this, many countries enter into extradition treaties.

From a Torah perspective, halacha governs all relationships between Jews, and the jurisdiction of beis din extends to crimes committed all over the world. There may be questions over which beis din should try a case, but this is probably dependent on where the defendant lives rather than on the place the crime was committed.[4] It would therefore seem that at least in an ideal world, where crimes are tried by beis din, there is no halachic basis for extradition.[5]

As has already been mentioned, in the non-ideal world that we live in, batei din have no jurisdiction over criminal cases and we rely solely on the secular legal system to enforce law and order. Extradition is a part of this system, and until the restoration of Torah law, we likely have no choice but to accept it.

However, even according to secular law, extradition is not automatic. The host country will usually also take reasonable steps to ensure that the criminal or alleged criminal will be treated fairly before turning them over. For example, some countries will not extradite when there is a risk of the death penalty being imposed. Some countries never extradite their own citizens, usually instead allowing prosecution of citizens for crimes committed abroad.[6]

Israel is slightly anomalous in this regard. Israeli law allows extradition of its citizens subject to certain conditions, while also allowing prosecution of Israeli citizens for crimes committed abroad (this requires the approval of the Attorney General). Where relevant, the first option is preferred.

This raises serious halachic and moral questions, as leaving Eretz Yisrael on a long-term basis is forbidden.[7] Although there are exceptions to this, forcing a Jew out of Eretz Yisrael is certainly not permitted. Returning to our earlier comparison, this is like parents evicting a child from their home. It would seem that we should make every effort to change this law.

The reality is that the law did used to prohibit extradition of Israeli citizens. In 1997, Samuel Sheinbein committed a horrific murder in the US and fled to Israel, where he had dual citizenship. The high court ruled that he could not be extradited, and he was instead given a jail sentence and imprisoned in Israel (he was later killed in a shootout after opening fire on prison officers with a smuggled gun).

This whole episode caused a rift between Israel and the US, and eventually led to the law being changed. In 1999, the law was amended to apply only to Israeli citizens who were also resident in Israel. In 2001, a further amendment was made to allow the extradition of Israeli residents for trial, on condition that the criminal would return to Israel to serve any jail sentence.[8]

This last amendment passed in the Knesset without objection, either from religious or non-religious parties.[9] One can only assume that there was a consensus that preserving a good relationship with the US was worth the price of forcing one or two criminals out of Israel. If even one life was saved by this, I would agree.

Jewish Oligarchs

In the past weeks, many individuals and entities with links to Vladimir Putin and the Russian Government have been sanctioned by much of the international community. The aim is to prevent those who aid the atrocities committed by Putin and Russia in Ukraine, either directly or indirectly, from being able to live as normal. The hope is that this will pressurise these individuals, and Putin himself, into ceasing their actions.

Israel has been faced with a difficulty in relation to some of the Jewish oligarchs close to Putin. Many of these have Israeli citizenship, and some may already be living in Israel. The tax breaks offered to new olim have long been an incentive for these individuals to reside in Israel or to base their assets here, and this has presumably been of some benefit to the Israeli economy.

While it is right that Israel's doors are open to all Jews, it should be obvious that this should not obstruct efforts to stop the mass murder of Ukranians (some of whom also happen to be Jewish).[10] There is not even any conflict between the two – if Jewish Russian oligarchs want to live in Israel, they have the option to make this possible by cutting ties with Putin and the Russian government.

To date, Israel has failed to impose the same sanctions imposed by other countries. In my view, the only possible justification for this is the belief that this may allow Israel to act as a mediator between the Russians and the Ukranians, ultimately limiting the murder. I have serious doubts as to whether this is the case or even plausible, but I am no expert.

Some are arguing that avoiding animosity with the Russians is necessary to preserve our own interests. Our military operations against Iranian targets in Syria are made possible by the Russians turning a blind eye, and thus antagonising the Russians endangers our own security.

I reject this argument. While I do not know the fine details of the relationships between Iran, Syria, Russia and Israel, I believe that it is safe to say that any threat posed by Russia to Israel is not remotely on the same scale as the real and present danger to Ukrainians. Appeasing the Russians at a time like this for speculative gains in the long run, is not a position becoming of the people who are supposed to be a light unto the nations.

וְשָׁפַט בֵּין הַגּוֹיִם וְהוֹכִיחַ לְעַמִּים רַבִּים וְכִתְּתוּ חַרְבוֹתָם לְאִתִּים וַחֲנִיתוֹתֵיהֶם לְמַזְמֵרוֹת לֹא יִשָּׂא גוֹי אֶל גּוֹי חֶרֶב וְלֹא יִלְמְדוּ עוֹד מִלְחָמָה:

(ישעיה ב, ד)

"He will judge between the nations and rebuke many peoples, and they will grind their swords into spades and their spears into sickles. A nation will not raise a sword to another nation, and they will no longer learn war.”

(Yeshaya 2:4)

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[1] See Choshen Mishpat siman 2

[2] During the same period, the protection granted to non-Jews greatly increased, with the rise of democracy and the view that governments exist to serve their citizens rather than the other way round.

[3] This is one form of the mitzvah of pidyon shvuyim (redeeming captives).

[4] Chazal discuss situations where two litigants disagree on which beis din to go to for civil disputes, and the halachos are summarised in Choshen Mishpat siman 14. At least in principle, the claimant usually has the right to decide where to go (see Sanhedrin 31b), although there are several factors involved and in practice, it is usually the other way round.

Criminal law is different, as the only 'litigant' is the defendant and there is no claimant (while there may be a wronged party who wants vengeance, he or she is not relevant to the judicial proceedings). Chazal do not discuss explicitly which beis din should try an alleged criminal, but a number of sources suggest that each person is primarily under the jurisdiction of the beis din of their home city. This starts from the Torah itself in Devarim 19:12 and 25:8.

[5] Even if a person commits a crime in their hometown and then flees elsewhere, as long as they plan to relocate permanently and their new hometown has a competent and just beis din, it should not be a problem for this beis din to try them.

[6] See https://en.wikipedia.org/wiki/Extradition#Own_citizens for a list of such countries.

[7] See Leaving Eretz Yisrael.

[8] See https://en.wikipedia.org/wiki/Samuel_Sheinbein#Israeli_extradition_law

[9] The protocols are available here.

[10] Although this would certainly be true even if no Jews were in danger.

When Rabbis Make Mistakes (part 2)

Introduction

Part 1 of When Rabbis Make Mistakes was written over two years ago. The post discussed serious mistakes caused by negligence of a rabbi, and the implications for the offender. This post will deal with a completely different aspect of rabbinic mistakes – the question of if and when individuals are halachically bound to follow rulings that turn out to be mistaken.

The main overlap between these posts is the fact that rabbis do make mistakes and that following their rulings blindly does not absolve all personal responsibility (as illustrated in part 1 by the words of R' Zerachia HaLevi, aka the Ba'al Hama'or). However, there certainly are also times when we are bound by rulings that we may not agree with, and here we will try to clarify when this applies.

If they tell you that right is left

Probably the most famous comment of Chazal related to this issue is a derivation from the command "not to veer to the right or the left" from the words of the Sanhedrin.[1] The Sifri, quoted by Rashi, explains that the phrase 'right or left' hints to us that one must listen to the Sanhedrin even if they tell us that right is left or left is right.

However, this is not the complete picture. The Mishna says that an individual who followed a lenient ruling of the Sanhedrin that he knew was erroneous, must bring a sin-offering (where applicable), as he did not genuinely rely on the Sanhedrin.[2] The gemara explains further that as deliberate transgressors do not bring sin-offerings, the Mishna must be discussing a person who knew that the Sanhedrin were wrong but mistakenly believed that he was obligated to follow them even when they were wrong.[3]

The clear premise of the gemara is that the truth is that one who knows that the Sanhedrin are mistaken, must not follow their lenient ruling. The Yerushalmi quotes a Beraisa that derives this principle from the very same verse quoted above, but in an opposite manner to the Sifri - 'right or left' limits the obligation to follow the Sanhedrin to cases where they tell us that 'right is right or left is left.'[4]

A precise reading of the Sifri and the Yerushalmi will show that as far as practical halacha is concerned, there is no contradiction between them. The Sifri explicitly refers to a person to whom it appears that the Sanhedrin's ruling mistakes 'right and left,' whereas the Yerushalmi is discussing the Mishna which deals with a person who knows that Sanhedrin have erred. This reconciliation was already suggested in the sefer Be'er Sheva (R' Yissachar Ber Eilenburg, Eastern Europe 1550-1623) in his commentary on the gemara.[5]

The line between 'knowing' of an error and 'appearing' to a person as an error is not always easy to draw. The human mind can never be 100% sure about anything, and 'knowledge' may really represent over-confidence whereas uncertainty may be a function of a lack of self-assuredness.[6] Part of a person's avoda is introspection in order to ascertain whether one really is, or should be, sure about any convictions.

Due to this difficulty, the Ramban does not accept the distinction between knowledge and 'appearance.' Instead, he writes that although one who thinks/knows that the Sanhedrin have made a mistake must not follow their ruling blindly, he must raise his objection for their consideration. They will discuss with him and potentially retract their position; however, if they are not convinced and decide that he is the mistaken one, he is obligated to follow the rule of the majority and forgo his own beliefs.[7]

Support for the position of the Ramban may be found from the law of the Zaken Mamrei ('rebellious elder', who does not accept the majority rule of the Sanhedrin). The process can start with a dispute in a local beis din, which is subsequently taken to the Sanhedrin for adjudication. A judge who returns home and continues to rule in accordance with his own minority opinion is liable to the death penalty;[8] the same applies if he acts personally in accordance with his own opinion.[9]

The Rambam writes that this applies even if the rebellious ruling is a stringency.[10] The clear implication is that the minority dayan must accept the lenient ruling and act accordingly, with no distinction being made if he 'knows' that the majority are wrong. However, the Chidushei HaRan[11] questions this, as lenient rulings do not obligate a person to action.[12]

Proven Mistakes (Ta'us bidvar Mishna)

The Ramban's solution of discussing any reservations with the Sanhedrin, but accepting their final ruling, is workable under ideal conditions. Even if those responsible for the original ruling are no longer alive, one who disagrees can raise his concerns with the judges of his time, who have the right to overturn earlier rulings based on their own understanding of halacha.[13]

The problem comes when, as in our times, there is no Sanhedrin and no authority to overturn earlier rulings. One who thinks that the Sanhedrin have erred has no-one to turn to, or at least no-one with the authority to uphold the concerns.[14]

There is potentially one exception. Chazal discuss the laws of mistakes made by Jewish courts – in some cases the ruling stands, but the judges may be held personally accountable and charged with paying compensation to the party found guilty in error. However, one category of mistake, called a ta'us bidvar Mishna (lit. error regarding a Mishna), can never stand.[15] This is usually when the mistake can be proven from an explicit, halachically binding text.

This rule also applies when the mistake is proven not from a halachic source, but from secular knowledge. The Mishna tells us of the case of a cow whose uterus was removed. R' Tarfon ruled that this rendered the cow a tereifa and thus ordered it to be fed to dogs; the other sages reversed this ruling based on the testimony of a doctor, that in Egypt it was commonplace to remove uteruses of cows (and this did not cause any fatal injury).[16] The gemara describes R' Tarfon's original ruling as a ta'us bidvar Mishna, and this is one reason why R' Tarfon was exempt from paying compensation.[17]

We have already quoted the explanation of the Ba'al Hama'or, that the exemption from payment is due to the personal responsibility of the one following the ruling. Although the Ramban disagrees with this reasoning, all agree that a ruling based on such a mistake is null and void.[18]

It would therefore make sense to say that as long as there is no longer any dispute regarding the facts, the original ruling may be disregarded without any need for a formal statement from the beis din. This was famously the position of R' Yitzchak Lampronti (1679-1756, Ferrara), who wrote that although the accepted halacha allows the killing of lice on Shabbos because lice 'do not reproduce through a male and a female,' this is now known not to be true and therefore one must be stringent.[19]

While there are many who disagree with R' Lampronti's ruling, this is predominantly based on claims that we should rely on Chazal's understanding of science rather than scientists,[20] or that Chazal themselves did not mean literally that lice do not reproduce.[21] The implication is that were there to have been a clear mistake, all would agree that this could be overturned.

However, R' Moshe Shmuel Glasner (Hungary, 1856 – 1924, Yerushalayim) writes that this is not the case. Affirming that Chazal indeed issued rulings such as permitting the killing of lice on Shabbos based on the imperfect scientific knowledge of their time, he claims that we are nevertheless bound by these rulings.[22] This was also the position of R' Yitzchak Herzog (first Ashkenazi Chief Rabbi of the State of Israel).[23]

Rather disappointingly, neither R' Glasner nor R' Herzog explain how their statements square with the principle of ta'us bidvar Mishna.[24] Presumably, they must hold that even a clear mistake must be confirmed by a halachic authority. Although this appears to be a mere technicality, R' Glasner argues that this is necessary in order to prevent a loss of faith in the entire system.

I would counter that at least in a generation where information is readily accessible to all, this attitude is counter-productive. People know when a clear mistake has been made, and we are better off knowing that the system itself incorporates a method for fixing these mistakes in an efficient manner.

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[1] Devarim 17:11. This command has already been discussed extensively here in How does halacha work? and less directly in several other posts.

[2] Horayos 2a. This Mishna follows the view of R' Yehuda that one who does genuinely rely on the Sanhedrin is exempt from bringing an offering. The halacha does not follow this view, but the principle that R' Yehuda's distinction is based on is undisputed.

[3] Ibid. 2b

[4] Yerushalmi Horayos 1:1

[5] A clear contradiction remains regarding the explanation the verse, as it does not seem reasonable to derive opposite meanings from the same word (even on the level of drash). However, the truth is that no more than one of these derivations is necessary. For example, we can read like the Yerushalmi that the verse only speaks of rulings that do not contradict known reality, and we automatically know that one who is not sure of an error is bound by the ruling. It is also quite possible that neither derivation is the real source for the halacha, as neither is explicit or clearly implied from the verse. Rather, the halacha is derived from logic and the words 'right or left' are a mere asmachta (hint or even a form of mnemonic - see Halachic Exegesis).

[6] See Obligations of the mind where we discussed what level of knowledge is required regarding the beliefs the Torah requires us to hold.

[7] Sefer HaMitzvos, Shoresh 1.

[8] Sanhedrin 86b

[9] Ibid. 88b

[10] Hilchos Mamrim 4:1

[11] Written by an unknown author, not Rabbeinu Nissim of Gerona.

[12] Sanhedrin 86b. He concludes that even the Rambam only spoke in a case where the stringency contains a corresponding leniency, but this is difficult to accept.

[13] See Rambam, Hilchos Mamrim 2:1.

[14] In How does halacha work? we explained that the binding nature of the gemara is based on the same principle that obligates following the Sanhedrin, and that until the consensus attained in relation to the gemara is replicated, we must not deviate from its rulings. This situation, being unable to alter laws dating from thousands of years ago in order to fit the needs of the time, is clearly not an ideal, and one of the reasons why the restoration of the Sanhedrin is so critical (see Ubitul Sanhedreya).

In part 6 of Mehalchim bein Ha'Omdim, R' Michael Avraham raises potential ways of mitigating this problem even without a Sanhedrin. However, were it possible to achieve any kind of consensus regarding these controversial ideas, it would likely also be possible to restore the Sanhedrin and thus render these methods unnecessary.

[15] Sanhedrin 33a and other places.

[16] Bechoros 28b

[17] Sanhedrin 33a. See also Shach, Choshen Mishpat 25:9

[18] Rashi writes אין דינו דין לגמרי (the ruling is completely invalid).

[19] Pachad Yitzchak, volume 10, צידה.

[20] The position of R' Yehuda Bril of Mantua, quoted by R' Lampronti there.

[21] See Michtav Me'Eliyahu, volume 4, page 355 footnote 4.

[22] Introduction to Sefer Dor Revi'i on Chulin.

[23] Shu"t Heichal Yitzchak, Orach Chaim siman 29.

[24] Similarly, R' Lampronti does not cite this principle in his support.