The Fixity of Our Current Understanding of Torah

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by R. Gidon Rothstein

Last time, we saw an expansive version of what later courts might change, including the ways earlier courts read the Torah itself, when they used middot she-ha-Torah nidreshet bahen, principles by which ideas are derived from the Torah. It seems so much is up for grabs.

The Exceptional Mishnah and Gemara

Kessef Mishneh introduced a significant qualification. Given Rambam’s idea, he wondered why the Gemara always assumes an amora, a rabbi of the time of the Talmud, cannot disagree with a tanna, a rabbi of the time of the Mishnah, rejecting such views with tiyuvta, the evidence of the Mishnah shows this amora must be wrong. Were the later rabbi to be reading a verse some other way, Rambam’s idea should mean he can do it regardless of his relative wisdom vis a vis the first.

Kessef Mishneh posits the development of a general consensus not to do so, that with the codification of the Mishnah, later rabbis decided not to disagree—although they could have—and ditto for the Talmud, once it was completed. If we accept his idea, the parameters of the Gemara are set and fixed, and we must take any readings of the Torah presented there as permanently authoritative. Kiddushei kessef, using an item of value to create the first stage of marriage, would be safe.

Still, there would be more room for change than we might immediately recognize, because minority opinions recorded in the Mishnah and Gemara can in many cases be rejuvenated (for example, the kabbalistic idea that in the future halachah will follow Beit Shammai). Or, in the more conservative direction, a future Sanhedrin might decide to accept some other work as permanently canonical as well (such as Kessef Mishneh’s own Shulhan Aruch, or even in our times, where aharonim generally do not argue with rishonim, writers from after the time of the Shulhan Aruch do not reject the views of rabbis from before.

But they would not have to, even in Kessef Mishneh’s world.

Or Maybe the Vistas Are Wider Than We Realize

R. Elchonon Wasserman,hy”d, disagreed withKessef Mishneh [I don’t think he is usually thought of as being radical or revolutionary, so his idea here is even more surprising]. In Kuntres Divrei Soferim 2;4, he advances the claim a gathering of all the Torah scholars of a certain time, or most, counts as the court of the Jewish people, and has full powers of legislation, including the right and ability to disagree with an earlier court, regardless of numbers or wisdom.

[He links the idea to Rambam’s suggestion such a gathering could renew the semicha, the ordination that gives full judicial powers to a Torah scholar, an idea I happened across in my considerations of Meshech Hochmah for Parshat Bo. Remarkably, he objects to Rambam’s requiring only the scholars of the Land of Israel, does not see any advantage for them over others, a discussion for another time.]

He knows he is disagreeing with Kessef Mishneh, and counters that he does not know a source for Kessef Mishneh’s idea of a generalized agreement, does not see how it would obligate all rabbis of the time of the Gemara [a reminder halachah is source based, that we cannnot just say whatever seems to make sense].

He instead suggests the majority of the world’s Torah scholars gathered both for codifying the Mishnah and the Gemara, so later individual rabbis or small courts could not disagree. [He too is now making an unsourced historical assumption, but it’s not vital here.] While codifying the Babylonian Talmud, Rav Ashi’s group of Torah scholars could have disagreed with the Mishnah, because they too were the majority of the era’s scholars, they happen to have chosen not to [that’s exactly what Kessef Mishneh said had happened, and he has now conceded it did, at least at this one moment in history].

In his mind, it explains why halachah accepts the Bavli over the Yerushalmi when the two are at odds, because only the latter was ratified by a group that counted as the court of the Jewish people.

Buried in R. Wasserman’s view is the radical possibility that a future Sanhedrin, may we merit it speedily in our days, could revisit all Talmudic readings of verses, could decide a verse read one way for millennia (using the 13 middot) would now be read another way, as long as the original reading was not a matter of tradition from Sinai.

What the Torah Itself Means Is Open to Adjustment

We end up in the following surprising place: What was said in the Torah, and explained a certain way at the time, will indeed never be changed. In this category we include halachah le-Moshe mi-Sinai, laws given to Moshe at Sinai, also not a matter of human inference or reasoning. Within rabbinic ordinances, as many as all seyagim, those promulgated as a protective fences (for Rambam), or as few as eighteen in Shabbat (for Tosafot), cannot be changed, either.

All the rest is up for grabs, some requiring a later court of greater wisdom and number, some not even needing that (such as an application of principles of inference). I repeat, as I did at the outset, this does not mean a later Sanhedrin will change much or anything, it only means they could. If they could—this is my real interest, I confess—it means Hashem did not mind if they did. So what did Hashem insist on?

I am attracted to the idea of discovering the unalterable mind of the Creator, as it were, the reason I will in this space begin to consider what the Torah commanded with an authoritative interpretation, so that we know what in fact can never be changed (other than by temporary and extraordinary measures like yesh koah be-yad Hachamim and/or et la’asot). Only if we know what Gd told us was essential and immutable, will we be able to understand how Hazal reacted, to learn from their model the best way to build forward into the future.

As Always, My Limitations

To do that right, I would have to survey all rishonim and aharonim on each mitzvah (because a later Sanhedrin might agree with them, might accept a currently obscure view that a Talmudic reading of a verse was given at Sinai, or was a rabbinic asmachta). Sadly for you but much more so for me, that’s not in my skill set.

I am going to do something smaller, which I hope will be productive anyway. I will find a mitzvah in each week’s parsha, usually based on Sefer ha-Hinuch, a sefer that helped me begin to learn the breadth of Gd’s mitzvot. When he doesn’t have one, I will turn to She’iltot of R. Ahai Gaon. From there, I will share how Rambam defines the mitzvah in the Sefer ha-Mitzvot (and, where relevant, how Ramban disagreed), how Sefer Ha-Hinuch expresses it, what Minhat Hinuch—a sort of commentary on Sefer Ha-Hinuch, although really much more, including a fuller consideration of the mitzvah in question– fleshes out, and then how Aruch Ha-Shulhan codified those laws in his works.

With these four main sources, and occasional others, I hope to be able to present a reasonable summary of the current view of the de-oraita elements of each of the mitzvot in question, which parts of them are Torah-based in the ways I have described here. When we know what we cannot change, we know what is essential to being Jewish, what Gd defined as necessary to a Jewish life. Which seems worthwhile to me.

See you next time, for the prohibition on creative labor on holidays.

About Gidon Rothstein

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