Rabbinic Consensus and Dissent

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A Shiur by Rav Joseph B. Soloveitchik on Berachos 19a
delivered at Manhattan’s Moriah Synagogue in the 1950’s

Edited by Rabbi Basil Herring

Note: This a summary of some of the Rav’s ideas presented in an oral lecture in Yiddish. They are not his words but a summary of his main points.

Said R. Yehoshua b. Levi: there are twenty four places in the Mishnah where a Bes Din employs niddui (excommunication) in the interests of kevod ha-rav (the respect due a sage of Israel)…. R. Elazar found three such cases: one related to netilas yadayim (washing hands before eating); another related to disparaging the memory of Torah scholars; and a third regarding magis da’ato klapei Ma’alah (acted disrespectfully toward God.)

The Nature of Niddui

Surprisingly, niddui was generally not imposed by the Sages on those who violated cardinal rules such as Shabbos or Yom Kippur, but rather on those who committed what appear to us to be minor infractions such as violating the second day of Yomtov (as opposed to the first day.) The Sages of the Mishnah recognized that while the masses viewed the laws of the Torah with great respect, they treated laws of “merely” rabbinic origin differently. Rabbinic laws were thus in need of special reinforcement. The classic example was niddui for violating Yomtov Sheini, insofar as it was based on what the Gemara (Beitzah 4b) calls minhag avoseichem beyadeichem (the established practices of an earlier generation). Precisely because they were of rabbinic origin, i.e., based in the Oral Law (or mesorah), it was essential that people maintain heightened respect for the majority rabbinic opinion, and for the accepted mesorah in general. For the same reason it was important to ensure respect for those who developed and transmitted them. Hence the similar concern in the Mishnah for kevod ha-rav, i.e. rabbinic honor.

So too in our day we are concerned when we hear of people who declare that something is only found in the Rema, or that a law was formulated as merely a rabbinic stringency. The potential consequences of such disrespect for rabbinic law, now as in Talmudic times, are even worse than violating cardinal sins such as idolatry or forbidden sexual practices.

The source and precedent for this attitude as a matter of broad principle is Deut. 17:12 which imposes capital punishment on a zaken mamrei (rebellious elder) who refuses to accept the majority view of his rabbinic colleagues, and instead acts in accordance with his own interpretation.

In this light we should view any attempt to change a properly established synagogue minhag with great concern. It is true that sometimes omitting or changing aspects of synagogue prayer (such as omitting Yekum Purkan, the Rosh Chodesh blessing, or Av Harachamim) does not itself necessarily involve a serious violation of law. Yet it should not be done, for doing so risks a negative attitude toward minhagim in general, if not immediately then as a precedent for others to further undermine other aspects of the Oral Law in due course.

Returning to our Gemara, R. Elazar lists three mishnaic cases of niddui: belittling netilas yadayim, disparaging the memory of a Sage, and acting disrespectfully toward God. The first two of these occur in one Mishnah (Eduyos 5:6.)

Disparaging the Memory of a Sage

The first of these cases is the story of Akavya b. Mehalalel’s excommunication. He was debating with other Torah scholars whether a converted woman is to be administered the bitter waters of the Sotah (Numbers 5). When his colleagues ruled in the affirmative, he disagreed. Told that Shemaya and Avtalyon had in fact given them to a convert, he responded “that was because they were converts like her.” His words were taken as being disrespectful to their memory, by implying that because they were themselves converts they sought to ensure respect for all converts and thus opposed any lowering of standards or exemptions for converts. Given that Shemaya and Avtalyon were the progenitors of the schools of Beis Hillel and Beis Shammai, and thus essential links in the chain of Torah shebeal Peh, Akavya was placed in life-long niddui for potentially undermining respect for the mesorah.

Throughout history those who sought to destroy or change the Jewish faith would begin by opposing practices of rabbinic provenance, and over time proceed to undermining the foundations of Judaism

If truth be told Akavya did not intend to undermine their authority, and his words do not have to be understood as criticizing them. Yet because of his special status as a leading Sage he was held to a much higher standard than others would be. In his case even the possibility that others would take his words as being critical of those estimable Sages required that he be shunned for the rest of his life.

This explains a difficult phrase in the Rambam (Hil. Teshuvah 3:8) that states “There are three who are considered deniers of the Torah (kofrim ba-Torah): (1) one who says that the Torah was not given by God…; (2) one who denies its commentary which is the Torah she-beal Peh, and he contradicts its interpreters (vehikchish magideha) as did Tzadok and Baitus; and (3) one who says that the Creator exchanged one mitzvah for another or annulled the Torah that was given by God, as the Christians and Moslems do.”

Why does the Rambam add the phrase “and he contradicts its interpreters?” If one denies the Oral Law (as referenced in the preceding clause) he certainly denies the authority of those who interpret it. The answer is that the Rambam does not mean to say that such a person attacks both the Oral Law and its teachers. The letter vav in this case (vehikchish) is not a conjunctive (“and”) but a disjunctive (“or”), i.e., one or the other. Thus a “denier of the Torah” can be guilty of saying “the Oral Law is invalid” or of saying “the Oral Law is valid, but its interpreters are at fault in certain respects.” This too according to the Rambam amounts to denial of the Torah, insofar as the Torah depends fully on respecting those who interpret and apply it in any given generation.

Belittling Netilas Yadayim

The Gemara then lists a second case involving Mishnaic niddui. The same Mishnah records that in the view of R. Yehudah it is inconceivable that Akavya b. Mehalalel was put in niddui given that his wisdom, purity, and fear of sin were unparalleled (see Eduyos 5:7 – which seems to justify his dissenting view – and Sifrei Bamidbar 105). Furthermore why would Shemaya and Avtalyon feel any need to safeguard the status of converts when the Torah itself repeatedly forbids discriminating against the convert? Moreover as Yoma 71b states, Shemaya and Avtalyon were themselves treated with even greater respect than that accorded the High Priest at his highest point following the Yom Kippur service, so why would they be concerned that converts would be disrespected on account of not being Jews by birth?

In any case R. Yehudah’s view is that it was R. Elazar b. Chanoch who was put in niddui because he had disparaged netilas yadayim. To appreciate why he deserved such a severe punishment, we must understand that netilas yadayim was a matter of pointed dispute between Chazal and the early Christians. The Gospels (Matthew 15:1-11) record that when told that his disciples did not wash their hands before eating bread, Jesus responded that the cause of defilement is not what enters one’s mouth but what emerges from it (i.e. improper speech), hence hand-washing could be dispensed with. It surely was not coincidental that netilas yadayim was of rabbinic origin. No wonder Chazal insisted that netilas yadayim be vigorously defended. Yet R. Elazar b. Chanoch disagreed, perhaps on the grounds that it was not necessary to take a stand on such a “minor” matter. The Sages, however, argued that failure to draw the line at that point would undermine respect for the authority of the Oral Law itself.

We need to understand that throughout history those who sought to destroy or change the Jewish faith never started by attacking its biblical foundations. They would begin by opposing practices of rabbinic provenance, and over time proceed to undermining the foundations of Judaism. Thus the early Christians did not start out by violating Shabbos, kashrus, tefillin, or tzitzis, nor did they seek to build a cathedral in Jerusalem. At the outset they observed the Torah, as Jesus himself famously did in partaking of the wine, matza, and meat sacrifice of the Passover Seder. It was the small things symbolized by netilas yadayim that they challenged. This is why a few decades later, according to Eruvin 21b, when R. Akiva was imprisoned by the Romans he refused to eat without performing netilas yadayim, even if he as a result might starve to death. How strange! After all, R. Akiva himself (see Bava Metzia 62a) taught us that one may violate the Torah to save one’s life. The explanation is that in a time of religious persecution even a “minor” law such as netilas yadayim, especially one bearing such symbolic significance, may not be violated. And there is no difference whether the one belittling rabbinic law is a Gentile or Jew. For from seemingly insignificant changes there can emerge profound denominational schism, or even a new religion, either of which can bring disaster upon the Jewish people. It is similar to a military confrontation in which one side probes along the front to identify the weaknesses of the other. Once a vulnerable point is identified, it is attacked and breached, to be followed up in due course with an expanded offensive from behind the lines.

Jews should not talk about prayer being effective. We leave such expectations to other faiths

A good contemporary example of this phenomenon are the non-Orthodox denominations that often dispense with long-established customs, and observe far fewer laws than did even the early Christians. It is therefore essential that we resist changes such as mixed pews, or allowing the chazzan to face the congregation in prayer, practices which in any case are Christian in origin. Allowing such deviations can lead to undermining truly fundamental areas of Judaism.

No wonder Chazal put R. Elazar ben Chanoch in niddui, given his failure to understand how important it was to not compromise in the face of those who denied the respect due the mesorah and its teachers.

A similar principle emerges from the ensuing Gemara that references the well-known incident (found in Bava Metzia 59b) of tanur shel achnai (an earthenware oven whose separate parts were reassembled using a concrete-like sand compound). The majority opinion was to consider it susceptible to tumah, while R. Eliezer disagreed. In due course, various supernatural events attested to R. Eliezer’s view. Yet because he insisted on maintaining his dissenting position in opposition to the rabbinic consensus he was put in niddui, with the acquiescence of God Himself (as the Gemara quotes God saying, “nitzchuni banai, my children have triumphed over me,” i.e., rabbinic consensus trumps absolute truth).

Now who was this R. Eliezer? He was none other than R. Eliezer b. Hyrkanos, otherwise known as Eliezer Hagadol, the greatest sage of his generation. Indeed, those who ruled against his view were all his students, including R. Akiva, R. Yehoshua, and Rabban Gamliel. He himself was the student of R. Yochanan b. Zakkai and the brother-in-law of Rabban Gamliel, the head of the Yavneh academy. And yet, his status notwithstanding, he was ostracized so as to safeguard the authority of the mesorah. We can contrast this with Aristotle who said of his teacher “Plato is dear to me, but the truth is dearer still” (Nicomachean Ethics 1096a:11). R. Eliezer’s students went further: they respected their teacher and they also respected the truth, but even more important to them was the obedience due the rabbinic consensus.

Why was it necessary to take such drastic action against so singular a Sage? Even though his ruling was technically correct, the practical halachah is determined by, and Judaism depends upon, majority rule in accordance with Exodus 23:2. Hence a refusal to defer in practice to the rabbinic majority, no matter how great the dissenter, poses a mortal danger to the survival of the mesorah and Judaism itself.

On Improper Expectations in Prayer

The third Mishnaic case of niddui involved Choni the Circle-Maker, who demanded that God answer his prayers for rain in precise measure. For this R. Shimon b. Shetach sought to place Choni in niddui, on two accounts: (a) One should never rely on divine intervention in nature to fulfill our needs. God created the natural order and seeks to avoid miraculous intervention therein. Demanding that He intervene in answer to one’s prayers is inappropriate. (b) While we are taught that God hears and considers our prayers, we are not taught that He necessarily answers or fulfills them. Thus God is a shomea tefilah (One Who hears our prayers), not a memalei tefilah (One Who fulfills our prayers). Choni thus impertinently imposed on God by his repeated demands to have his prayers fulfilled.

I too have sometimes prayed for things, only to realize years later that God refused my prayers for my own good. Thus when rabbis talk with other faith leaders about the so-called “efficacy of prayer” it is a mistake. Jews should not talk about prayer being effective. We leave such expectations to other faiths.

In the same way some American Orthodox Jews act as if God owes them something. They think that they have a lien on Him, one that God can never fully repay. I recall how in my early years in this country a prominent fellow called to tell me that his daughter had been robbed in broad daylight, and then added, “How can God allow this to happen to me after I have been so faithful to Him all these years?”

A Jew must know that God owes him nothing whatsoever. This was the mistake of Job, who kept a veritable bookkeeping system detailing what God owed him. The Gemara Avodah Zarah 3a teaches us that hayom la-asosam, u-machar lekabel secharam (our task is to act properly in this world, while the reward comes in the next world). We have survived as a people because none of the martyrs throughout history demanded a reward in this life – not R. Akiva, not R. Chananya b. Tradyon, and not the martyrs of Worms or Speyer or Chmielnicki. Therefore those who like Choni expect that God will answer their prayers immediately are subject to niddui.

From this Gemara we see how far the Sages went in protecting the mesorah, and the majority rulings of its rabbinic leaders, for without these things Judaism as we know it would not have survived.


Comments by Basil Herring

  1. One cannot but be struck by the force of the Rav’s comments as they relate to contemporary efforts by some to introduce changes affecting time-honored and widely practiced laws, customs, and communal practices of rabbinic origin. While the Rav in the 1950’s was dealing with the ascendant non-Orthodox denominational movements of the time, one must wonder what he would say of such tendencies, even within Orthodoxy, that might be encountered in this second decade of the 21st century.
  2. That said, there is an obvious question in light of the Rav’s insistence on following past and present rabbinic consensus. If we must always respect the majority rabbinic view, how can we justify anyone following a minority opinion that was not adopted by most authorities in earlier generations? How for instance did the 18th Century Chasidim legitimate customs that departed from the existing norm? More contemporaneously, how might we justify halachic prenuptial agreements when some rabbis oppose them as an improper modification of age-old consensus marriage practices?
  3. It would appear that to pass the test of permissibility, all of the following conditions at the minimum (one can assume there are others) would need to be satisfied:
    1. Communal circumstances have changed to the extent that what was unnecessary or impermissible then, now calls for a different approach to strengthen the halachic community and Torah observance.
    2. In the view of a substantial minority of recognized halachists the proposed change does not violate established halachic principles, and is itself based on precedents established by respected authorities of the past.
    3. It does not suffice that the contemplated change is based on the view of one or two halachists of previous generations, if those views were not subsequently accepted by a significant number of halachists over time.
    4. Those who adopt the new practice have not declared a broader or systematic intent to redefine the parameters or boundaries of acceptable Orthodox practice.
  4. As is well-known, the Rav himself adopted practices that differed from the widely-practiced customs of others. How is this to be harmonized with his thesis that one must respect and follow the rabbinic consensus? In approaching this question, the following considerations should be kept in mind:
    1. The Rav was a widely recognized genius in halachic matters, with wide-ranging familiarity of the entire halachic corpus. As R’ Moshe Feinstein famously pointed out in the introduction to the Iggeros Moshe (in explaining why he engaged in psak halachah), in the absence of the Sanhedrin as long as there has not yet been a formal psak din (ruling) by consensus, when one who is qualified has exhaustively examined the Talmudic and Responsa literature on the subject with due analytic consideration and fear of Heaven, and concludes that the ruling should be in a certain way, then he is obligated to issue that ruling, and those who follow it will receive their reward, even if in fact his ruling is technically incorrect. Such, said R. Moshe, is how we are to understand the fact that throughout the generations there were minority views among halachists that were properly adhered to by their followers, while those following the majority view were also correct (in the sense of eilu ve’eilu.) The key is that one must be sufficiently qualified to be worthy of issuing a minority view, as the Rav indubitably was.
    2. Whenever his personal custom differed from that of the majority, it was always based on his conviction that there was sufficient precedent among recognized authorities for his custom within the halachic literature and within the practices of those who preceded him.
    3. When his personal practices diverged from the conventional ones, he did not instruct his students or followers to adopt his rather than the widely accepted ones. Indeed this was precisely the position of Akavya ben Mehalalel (see Eduyos 5:7), who instructed his son to follow the majority view, for the son, unlike Akavya who based his position on multiple sources, heard the dissenting view from only one source, i.e., Akavya himself.
  5. The Slippery Slope: Rav Aharon Lichtenstein has cogently written that the slippery slope argument does not by itself suffice to condemn all changes with an argument that “by itself this is acceptable, but we must be concerned with what it may lead to.” Indeed that is true. Something may be correct and valuable, even though – were it to be taken to an extreme – other negative consequences will ensue. In philosophic terms, a reductio ad absurdum argument is not a valid one. And yet, as the Rav’s analysis here seems to say, the slippery slope was precisely what motivated Chazal to oppose even minor departures from accepted practice, especially in the realm of rabbinic law and custom. So should one adopt a slippery slope argument to reject all halachic innovation or departure from past practice? In response one may suggest that when it comes to change it takes extraordinary wisdom and experience to discern the difference between a slope that is slippery and one that is not. This is not a matter given to mechanical formulae or broad generalizations. Each prospective change or innovation requires its own careful analysis, with a risk-benefit calculus based on a profound knowledge of halachic sources, thorough knowledge of social realities, and healthy instincts as to the dynamics and likely outcome of the contemplated innovation. This of necessity entails that few are those with the necessary credentials to create halachic precedents for others to follow. If this sounds more than a little cautious or conservative when it comes to instituting halachic change – that is because it is.
  6. In all three narratives encountered in this Gemara, rather than defer or give the benefit of the doubt to prominent rabbinic personalities who cast doubt on the binding authority of rabbinic consensus, we learn that it is quite the opposite. When it comes to showing respect for rabbinic authority we should hold prominent individuals to a higher rather than a lower standard in showing respect for rabbinic law and custom.
  7. There are those who argue for the halachic autonomy of the local rabbi, asserting that his knowledge of the facts “on the ground” qualify him uniquely to issue the most appropriate guidance in a given case. Yet, if anything, the cases encountered in this Gemara, and the Rav’s approach to them, leads to the opposite conclusion. When it came to sensitive matters with wide-ranging consequences, the Oral Law has always operated within a structural framework of centralized authority in one form or another, even after the Sanhedrin ceased to function. Sometimes it took the form of a central rabbinic committee that set policies for those within their jurisdiction, while at other times local rabbis voluntarily submitted to the rulings of the leading rabbis of their time or land – as attested by the vast Responsa literature. But it hardly was the case that local rabbis were free to make ground-breaking halachic rulings, especially not when it came to sensitive issues that had ramifications for others beyond their local community. Contemporary semichah is indeed a license to issue rulings (known as heter hora’ah), but it has generally been understood that such license empowers the musmach to appropriately apply existing law to the circumstances at hand – rather than to innovate or change law or custom as he sees fit. Indeed, in most Orthodox communities even today outside of North America, it is this rabbinic model that predominates. And even in North America, mainstream rabbinic organizations do on a limited basis issue policy and halachic positions for their members to follow, even if as a practical matter it is difficult to enforce them.
  8. According to the Rav’s thesis that niddui is generally a punishment for undermining rabbinic authority, how does disrespect for God (the third case found in the Mishnah) deserve that penalty? Perhaps one can suggest that the word magis, which Jastrow derives from the Latin term magister, or “high imperial officer,” gives the phrase magis da’ato klapei ma’alah the connotation of “one who seeks to impose his imperious will on Heaven.” This is true whether it be (as in the case of Choni) by demanding that God accede to one’s prayer, or more generally to subject God’s commandments to one’s own critical judgment. If such is one’s attitude toward God’s will and His Torah, surely such a person will treat a “mere” rabbinic authority with even less deference or humility, and thus preventive niddui is the appropriate response.
  9. Finally, this analysis by the Rav should be seen as a stimulus to a more balanced discussion of optimal responses to the growing challenge of assimilation that confronts the Jewish people. It is precisely respect for rabbinic rule and the Oral Law tradition that can account for what is increasingly recognized as the remarkable resilience of the mesorah in maintaining and invigorating Jewish commitment wherever traditional Jews are found. If by contrast other expressions of commitment to Jewish life are now seen to be poor drivers of adherence to the Jewish people, one can argue that the preferred path to strengthening Jewish life would feature a renewed effort to foster respect for Torah she-be’al Peh and its rabbinic tradition.

About Basil Herring

Rabbi Basil Herring PhD has headed a number of congregations, taught at various colleges, published a number of volumes and studies in contemporary Halachah, medieval Jewish philosophy and Bible, and best Rabbinic practices. A past Executive Vice President of the Orthodox Caucus and Rabbinical Council of America (the RCA), he is the editor of the recently published Avodat Halev Siddur of the Rabbinical Council of America.

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  1. I very much enjoyed this post. It all comes down to “This is not a matter given to mechanical formulae or broad generalizations”. In fact R’ Herring’s formulations lead towards a case based rule – i.e. when we look at cases throughout history we try to extract the key issues involved in that case and add them to our “fuzzy logic” type algorithm. Each successive case can then add another level of complexity as we assume the rabbinic leaders of each generation were operating under the exact same set of priorities and rules. The Chassidic example presents a particular challenge.

    These rules partially explain a very complex process amongst rabbis and between rabbinic leadership and the community.

  2. There is a weakness in the way the Choni argument is presented. For at least in the mishnayot, while expressing a desire to put him in cheirem–lulai ata Choni–due to the greatness of the subject in the end cheirem was not enacted. A study of what the nuanced difference in the cases are would be worthy of another talk by the Rav. But it’s very hard comparison to make of the 3 cases. Especially as the halachic impact of choni’s case was almost none apparent.

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