by R. Gidon Rothstein
Drasha 12, part 1
What gives rabbis, or even the Gemara, authority in halachic issues? In this drasha, Ran reviews the sources of rabbinic authority, whom he had set up as the source of ultimate justice, and his view of why the Gemara isn’t open to later disagreement.
Preventing Divisive Controversy
|Prior essays in this series|
Ran starts with Devarim 17:8, which tells us to bring any issues that elude us to the central court, the place that Hashem chooses. Ran calls this a foundation of the Torah. Since disagreements naturally arise, new issues need some way to be brought to a consensus. (That, itself, is a significant and nonobvious assumption, that societies need a working consensus on issues facing them.)
For that reason, the Torah set up the Sanhedrin as arbiters, so that—as Sanhedrin 88b reports in a baraita in the name of R. Yose—there were originally no lasting disagreements on matters of Torah. Every town had its court, and Jerusalem had the high court of 71. On any issue that was dividing Torah scholars, the Great Sanhedrin would decide, either by reporting the tradition on the matter or reasoning it out themselves.
Only after the students of the houses of Shammai and Hillel failed to learn well enough from their masters, the baraita reports, did the system break down. Lasting differences multiplied and Torah became like two. The desire to avoid such a situation is, for Ran, the reason the Torah treated a זקן ממרא so seriously, a Torah scholar of rank who refuses to follow the ruling of the Great Sanhedrin.
Ran doesn’t elaborate on what seems an important missing piece, how that breakdown happened. If the Great Sanhedrin was supposed to deliberate and decide all disputes, why didn’t that happen with the students of the houses of Hillel and Shammai? As I said, he doesn’t explain this point.
Ran is more concerned with source verses. While he’s cited this one, the Gemara has two others that seem also to justify rabbinic authority.
A General Source of Rabbinic Authority
The verses he’s used show only the Great Sanhedrin’s role as the court of last resort (and, for capital cases, only when they sit in their proper place near the Temple). Where does other courts’ power of adjudication come from? What about all the Torah scholars throughout history, do we not have to listen to them?
We do, because there are two more verses that deal with the question. The first, Shemot 23b, tells us to follow majority rule, both in courts and when Torah scholars disagree. Avodah Zarah 7a grapples with what happens when two Torah scholars are asked a question and give different answers; one option is that one of those will be greater than the other in wisdom and number. Ran’s reading of “greater in number” is that more of that generation’s scholars agree with him than the first one, and it’s a case of majority rule.
I’m not sure how plausible I find that, since the Gemara seems to be discussing how to decide among two scholars, not when there are opinions arrayed on either side. But it doesn’t really matter, because Ran quickly moves to an even more interesting claim, that this idea of the number of scholars involved is the source for the Gemara’s authority.
Can We Disagree with the Gemara?
He’s not the first to wonder why we follow the Gemara so fully. Later Torah scholars also knew a lot; what happened with the close of that corpus that made clear to those later rabbis that they could not dispute any of its clear conclusions? Ran’s answer, and it’s by far not the only (or even most common) one, is that we have never matched the numbers of scholars who gathered together for the deliberations recorded there.
Ketubbot 106a, for example, writes that when a convocation of rabbis broke up—the exact instance is not known, some think it was Abbaye’s time, some think Rava’s, some think R. Pappa, and more—once there were only two hundred of them left, they thought of themselves as the remnants of the remnants. So if a majority of that large a group had agreed to some idea, we have never had a larger group than that, to reach a different decision.
There are many other answers, but Ran’s passage leaves open the possibility of rethinking those of the Gemara’s conclusions and insights that were not simply a recording of tradition. It’s not that we can’t argue with the Gemara; it’s that they had such larger numbers of scholars involved in their debates that we cannot assume we have reached any kind of equivalent truth.
He may not have conceived of it, but today, in Israel, if all the ramim, roshei yeshiva, and roshei kollel of the various yeshivot were to convene to analyze halachic issues, they’d have more people than the Gemara did. For Ran, it sounds like they could then rule differently from the Gemara.
That’s all theoretical because a) his isn’t the usual explanation for the authority of the Talmud, and b) it’s unlikely that all those Torah scholars will gather for a majority-rules meeting any time soon.
Getting back to Ran, he notes that the Gemara also cites Devarim 17:11, לא תסור, as the source of Rabbinic authority, such as in Berachot 19b. That’s for decrees and ordinances, new legislation by Chazal. So we have the authority of the Sanhedrin or of any majority of Torah scholars when trying to ascertain the Torah’s view of some issue, and then we have this verse for ordinances and decrees. The next step, for Ran, is to compare these powers to those of prophets. Spoiler alert, scholars win.