How the Torah’s Meaning Can Be Shaped By a Sanhedrin

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by R. Gidon Rothstein

I have been studying Daf Yomi since the beginning of this cycle (you can see/hear the results at webyeshiva.org); on days when my allotted hour does not let me cover the whole Daf, I tend to say, “sometimes we win, sometimes the Daf wins.” Here, too, the framework I am setting up for our next piece of study has “won,” in that I cannot finish it this time.

The mitzvah for Parshat Bo I hoped to lay out for you will have to wait for next year, Gd willing. For this week and next, I want to do my best to be clear about what I hope to be doing in this space for the years to come. I think the easiest way to consider the issues is to study Hilchot Mamrim, 2;1. In abridged translation, Rambam writes:

“When a Sanhedrin derives an idea from the Torah using the middot [the ways to derive new ideas from Scripture, in English called hermeneutical rules, such as the thirteen we attribute to R. Yishmael in our morning prayers], and a later Sanhedrin sees a reason to reject that reading, they may, and may read the Torah as seems fit for them [emphasis added], because the verse [Devarim 17;9] refers to the judge of those days, you are only obligated to obey the Sanhedrin of your generation.”

Rambam’s idea is generally accepted, and means that much of what we think of as Torah law is actually amenable to change by each generation’s Sanhedrin. Before we clarify (and there is much clarifying to be done), let’s see what he says about rabbinic law.

Rabbinic Law and Its Malleability

Paragraphs two and three of the chapter also bear close consideration, because they lay out ways Sanhedrins may revoke decrees or ordinances instituted by earlier ones. Rambam holds that all gezerot, decrees made to protect or safeguard observance, can never be revoked, but Tosafot Avoda Zara 36a, s.v. ve-ha-Tenan limits that to eighteen decrees listed in the beginning of Shabbat. In Mamrim 2;4, Rambam does note a later court could issue an hora’at uprooting rabbinic decrees, because if they can do that for Torah law, they must be able to do it for rabbinic law.

Were a future Sanhedrin to adopt Tosafot’s view, all rabbinic rules other than those eighteen could in some way be revoked or amended. For Rambam, they could at least suspend them through hora’ot sha’ah, if appropriate.

On ordinary rabbinic rules, Rambam himself sees a path to repeal (based on mEduyot 1;5), the later court need only be greater in number and wisdom to reverse an earlier court’s rulings. While the definition of that is complicated, as we will see, it means that for all those laws, Rambam sees a path to change, does not think of our current corpus of rabbinic law as necessarily what must be true for Jews of all generations.

Greater in Wisdom and Number

To define what it means for a court to be greater in wisdom than a previous one, Rambam focuses on the Rosh Beit Din, the head of the later court must be wiser than of the earlier one (apparently a real possibility, a later scholar is allowed to think he has greater wisdom than an earlier one, as certain amoraim say of themselves. Were R. Moshe Feinstein or R. Ovadya Yosef, zt”l, for just two examples to have headed a Sanhedrin and said they were greater in wisdom than some earlier rabbi, they might have been wrong, but the claim isn’t ridiculous on its face).

Shu”t Radvaz 5;117 points out we could have evaluated greater wisdom as a collective matter, the wisdom of the entire later court needs to be greater than of the earlier one. To pin it all on the head of the Beit Din seems to assume the head shapes the court more than we might have realized [perhaps not completely different from how we today refer to Supreme Courts by their Chief Justice—the Warren Court, Burger Court, etc.].

Radvaz thinks the Mishnah implies both are needed, the head of the court must be wiser as well as the wisdom of the entire court being greater. Had the first court had overall wiser judges, he sees no reason the greater wisdom of the head of the court should override the consensus of the many wiser members of the previous court (think well of me for resisting a political aside here!). It tells us sometimes great leaders are held back by their generation.

We need to also understand greater in number, since all Sanhedrins had seventy members. Rambam, Mamrim 2;2, said it was the number of nonvoting scholars who joined the discussion, who were allowed to share their questions or comments before the Sanhedrin made its decision. Radvaz tells us Ra’avad thought it was the age of the head of the court (age being just a number), a reminder Jewish tradition assumes age tends to confer a wisdom largely unattainable in other ways.

Rashi to Avot 5;7 agreed. The Mishnah said a sign of wisdom was knowing not to speak in front of someone greater than oneself; Rashi said greater means in years and number of students (perhaps because otherwise, it is hard to evaluate). Tosafot Yom Tov to Eduyot 1;5, however, sticks with the simpler version, reminds us Berachot 20 has Rava notice his greater wisdom over Rav Yehudah, because he understood halachic topics more easily and quickly. Radvaz assumes Rambam meant “wiser” in this less clear way as well.

Tiferet Yisrael to Eduyot adds a confounding factor. The Mishnah spoke three times of the later court being greater in wisdom and number, for Tiferet Yisrael its way of requiring that that later court also be objectively great. Both courts might be dwarves (his word), in which case the first court might have made a rule and the later court may not change it. A court that wants to institute change must be known as an important and significant group in its own right, not just comparatively.

There’s more to these issues, but I leave them because they are technicalities of how rabbinic law can be changed. Once I know it can be, it turns me back to my project, finding elements of a Jewish life that will always be there. The more fixed part of that life is Torah law, so let’s go back there.

The Middot and Their Malleability

Later Sanhedrins need to be greater in wisdom and number only to change rabbinic law. For Rambam, if a later Sanhedrin comes to derive ideas from the Torah differently (which is different than just reading the Torah, as we will discuss), they do not need to claim to be greater. A common example is the issue of kiddushei kesef, a man betrothing a woman by giving her an item of value (meaning: the form of marriage we all know and do).

Rambam refers to it as divrei soferim, presumably because the beginning of tractate Kiddushin tells us it was known through a gezerah shavah, the technique of similar words in two contexts telling us to take truths of one context and apply them to the other. (What Rambam meant by divrei soferim has been disputed for centuries; for our purposes here, I am assuming he means it is Biblical, derived using one of the hermeneutical principles.)

Now that we know Rambam does not require greater in wisdom or number for a later Sanhedrin to change how the middot are used to read a verse, a later court can seemingly come to believe the gezerah shavah does not fit here or points in a different direction.

Gezerah shavah is a bad example, actually, because the Gemara says we cannot derive those on our own, they must come from tradition, although the details are murky [again, a topic of much debate; I recently read a remarkable work by R. Shmuel Ariel, titled Nata be-Tocheinu. He thinks there is room for rabbis to innovate even within gezerah shavah; were a Sanhedrin to agree with him, they could reject or re-read any gezerah shavah, including this one].

A noted Torah scholar in Jerusalem was listening to me share some of these thoughts, and he stressed the Sanhedrin would have to actually believe the Torah meant something else. To some extent, that depends on our version of pluralism and shiv’im panim la-Torah, because perhaps they only have to believe there is another legitimate way to read the verse, rather than the right way to read it. Even if we thought they had to be searching for the one right or the most correct way to read it, the history of debates about Torah issues shows how wide a range is included in such an endeavor.

Other middot are more clearly logical, which also means they are prone to being seen with different eyes at a later point in history. For kal va-homer, for example, we reason that if the Torah required or prohibited x, it certainly meant to require or prohibit a more significant example of the phenomenon. A later Sanhedrin might notice a gap in the logic, and decide it was not as clear a kal va-homer as assumed. Peri Megadim assumed the Gemara took this into account with its principle of ein onshin min ha-din, courts did not administer punishments based on a kal va-homer. Because later courts might discover a flaw in the logic, he said in his Petihah Kollelet, Part 4, they did not let it lead to punishments.

Any law derived from a kal va-homer, then, might end up discarded by a later court, without their making any claim to any great wisdom (or number).

What Counts as Inferences, What as Authoritative Traditional Reading

Were we to stop there, laying out where a future Sanhedrin might see room for change in Torah law itself would be a straightforward project, but for two major complications. First, Torah law is not split neatly between what’s in the text and what is derived through the 13 Middot. There are also understandings of the text we take as having been given orally to Moshe Rabbenu at Sinai, and those too are incontrovertible. For an oft given example, the meaning of peri etz hadar as etrog is assumed to have been told to Moshe (despite Sukkah 35a seeming to derive it from its being the only tree whose bark tastes like its fruit).

Those interpretations are not the same as Halachah le-Moshe mi-Sinai, laws that came down at Sinai with no textual element (such as shi’urim, the amounts needed for various practices or prohibitions). Those, too, cannot be changed, except there too it’s not always easy to know what’s what, as the Gemara sometimes refers to something as an halachah le-Moshe mi-Sinai, and rishonim and aharonim tell us the term is not literal.

To fully catalogue the unchangeable, we would also have to decide which rules the Gemara lays out are in fact halachah le-Moshe mi-Sinai. Rambam lists many in his Introduction to the Mishnah, but I believe his list is not seen as comprehensive.

When the Gemara presents an idea, with a verse attached, we thus need to know if the reading in question is the reading of the verse, taught to Moshe by Gd, and the only way to read it, or is how Hazal came to read the verse, and therefore might be read differently by a later Sanhedrin. (You may remember Peri Megadim suggested some hekeshim, inferences based on the proximity of two ideas in a verse, were really plain-sense readings rather than inferences or derivations.)

The Value of Knowledge

Were that the only issue, it would mean any future Sanhedrin would have to read the Torah carefully, and make decisions about which of our readings of the Torah are the ones given as unchangeable, and which were the most convincing to Sanhedrins of old, but plausibly amenable to change.

Except there’s a much larger elephant in the room, that we will see next time, when I also plan to explain what I hope to do to contribute to pull back the curtain, a bit, on what’s considered original and eternal Torah law.

About Gidon Rothstein

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