Torah From Our Beit Midrash

The entire chapter of HaSholeach (the fourth chapter of Gittin) is devoted to Rabbinic legislation and institutions enacted for the sake of tikkun ha'olam, "fixing the world."   It is thus worth considering the basis for the rabbinic power to legislate.  What makes rabbinic legislation binding?  While this question is not raised directly in the Talmud, one of the opening sugyot does address an aspect of it.  The first takkana, edict, that is dealt with is one that was instituted to protect a wife who was in the process of being divorced.  The husband, according to law, had the ability to nullify the get or the agent delivering it, even not in the presence of the wife.  This, of course, could lead to cases where a woman would think she was divorced when she was really still married.  To protect the wife, the Rabbis legislated that the husband was not allowed to nullify the get or the agent unless he communicated this directly to the agent or the wife. 

The question that is then raised in the Gemara is: what happens if the husband violates this edict, and nullifies the get anyway?  In such a case, Rebbe [Yehudah HaNasi] states that the nullification is valid.  Rabban Shimon ben Gamliel takes exception to this: "If so, what good is the power of the court?"  (Gittin 33a).  If someone can violate the edict and get away with it, if the edict has no teeth, then what's the point?   Rather, says  Rabban Shimon ben Gamliel, even if the husband does nullify the get, his nullification is meaningless, and the woman who receives the get will be divorced.

We can certainly identify with Rabban Shimon ben Gamliel's position.  Any edict needs teeth, all the more so if it is to protect a woman from potentially disastrous consequences.  However, where do the Rabbis get this power to override an act - the nullification - that is legally binding according to the Torah?  The Gemara asks this question, "How, just because of the concern of the power of the court, could we permit a married woman to remarry?"  The Gemara's answer is that they were able to permit the woman in this case through the vehicle of hafka'at kidushin, annulment of marriages.   What the Gemara seems to be saying is that the vehicle of hafka'at kidushin works within Torah law [we will leave it for another time to discuss here the mechanics of hafka'at kiddushin].  If, however, it were an issue of a straight conflict between Rabbinic legislation and Torah law, the Rabbis would not have the ability to override the Torah law.

This sugya, then, reflects a limit on power of Rabbinic legislation - it cannot override Torah law.  This limitation, however, is question in a sugya in Yevamot (89b-90b).  The Gemara there states that it is clear that Rabbinic law can override Biblical law in two cases: (1) emergency situations, where the Rabbis have to act to protect the community's physical or religious well-being and (2) if the transgression of Biblical law comes about only passively - such as not blowing the shofar when Rosh HaShana falls out on Shabbat.  What is uncertain is whether Rabbinic law can override Biblical law even if it leads to active transgression, bi'kum vi'asey.

Before analyzing the cases where Rabbinic law can override Biblical law, it is worth going back to the more fundamental question - what makes Rabbinic legislation binding in the first place?  Here we find a hint in the Gemara.  The Gemara Shabbat (23a) asks how we can make the blessing over Chanukah lights, "that You have commanded us in the mitzvah...".  Where, asks the Gemara, did God command us in this mitzvah, which we know is only Rabbinic?  The Gemara gives two answers: (1) We are commanded based on the verse: "You shall not waver from the matter that they [the court] tells you to the right or to the left" (Devarim 17:11) and (2) "Ask you father and he will tell you, your elders and they will answer you." (Devarim 32:7).  The first verse seems to be a real Biblical mitzvah to obey the court, whereas the second verse seems to indicate just an accepted practice to listen to them. 

These two opinions are reflected and expanded upon by the Rishonim.  Rambam (Book of Mitzvot, Foundation 1; Positive Mitzvah 174; Laws of Rebels 1:1-2, and 2:5-7; contra Introduction to the Commentary on the Mishna, s.v. "The fourth division") states that the verse "you shall not waver" commands us not only to listen to the Sanhedrin, the High Court, in its role as interpreters of Biblical law, but also in its role as legislators of Rabbinic law.  Ramban (Critique on Book of Mitzvot, Foundation 1) takes strong issue with this.  If this were so, says Ramban, then why are we more lenient with Rabbinic law than with Biblical law - we are lenient in cases of doubt, other factors - such as human dignity, pain, and illness - override Rabbinic law, and one does not get lashes for transgressing Biblical law.  But, according to Rambam, isn't every transgression of a Rabbinic law also a transgression of a Biblical law?  It is thus clear, says Ramban, that Rabbinic law is not obligatory based on the verse "you shall not waver," and that one does not transgress a Biblical commandment when she transgresses a Rabbinic law.

Putting aside Ramban's questions on Rambam's position for the moment, we need to ask - if, indeed, this power is not mandated Biblically, then why must we obey Rabbinic legislation?  Ramban himself does not answer this question, but 3 answers are possible:

1. There is no explicit Biblical mitzvah or prohibition regarding rabbinic legislation, but we can infer from the Torah that we are required to listen to the Rabbis in this capacity as well.  It is because these laws are not backed an explicit mitzvah that they have the leniencies that they do.  Nevertheless, the Torah is what backs and empowers the Rabbis in this capacity. This is the approach taken by Rav Elchanan Wasserman in his Kuntrus Divrei Sofrim, 1:12-18 and 29-33).  See there how he attempts to demonstrate that this obligation can be found in the Torah.
2. Their power derives from the people.  Because the Jewish People have recognized the Rabbis as religious leaders, and submitted to their authority in areas of legislation, they have implicitly empowered the Rabbis to legislate for them.  This is a type of a social-contract model, and reflected in the statement in the Gemara that members of a guild or townspeople can empower certain people and impose laws on the entire community (Tosefta Baba Batra 8:2).  We would have to assume that this power, when applied to religious matters, has religious weight and not only political weight, so that when one violates a Rabbinic law, one does not only break a law, but also transgresses a religious restriction.  This approach is taken by R. Yisrael Meir Lau, in his responsa Yachel Yisrael, no. 18.
3. A position between the first two: Rabbinic law is part and parcel of a traditional, religious society.  It is not mandated by the Torah, but it is implicit in a traditional religion, that it will follow its traditions, and the guidelines set by its religious leaders.  This, I believe, is indicated by the verse: "Ask ... your elders and they will tell you."  We follow the Rabbis because that's what it means to be part of traditional, Rabbinic Judaism.  To violate a Rabbinic ruling, then, is to step outside of the norms and boundaries of one's religious community, and such a violation has religious valence - is a transgression.  [It is worth noting that a similar verse is quoted in the Gemara Pesachim (50b) to explain the reason why we must keep minhagim, customs: "Listen my son to the admonitions of your father and do not abandon the teaching of your mother." (Mishlei 1:8).  There the emphasis is traditions handed down by one's parents, whereas here the emphasis is rulings issued by one's religious leaders ("your elders"), but the point is the same - as members of a religious community, we are bound by its traditions and its norms.]

It is worth noting that even Rambam would have to use one of the approaches above, or a variation thereof, to explain why we are bound to follow the post-Sanhedrin Rabbis.  Given that most Rabbinic legislation came after the period of the Sanhedrin, the Biblical mitzvah can no longer be looked to as the backing for this legislation.  [See, however, Chinukh 495, who understands that "you shall not waver" applies even to later Rabbinic authorities].  There is reason to believe that Rambam would endorse the second explanation, that of empowerment from the People, to explain the nature of Rabbinic authority in this period, because he states in his introduction to Yad HaCahazaka that the reason that we are bound to follow the Babylonian Talmud is because it was accepted by all the Jewish People.  This fact, apparently, makes the Talmud binding, both in its interpretive and in its legislative capacity.

Having explored the basis for the Rabbinic power of legislation, let us return to the question of whether a Rabbinic ruling can override a Biblical mitzvah.  It would seem that this would depend on where this power comes from.  If we are mandated by the Torah to follow the Rabbis, then it is possible that in certain circumstances we would be required -by the Torah - to follow the Rabbis rulings over those that are explicit in the Torah.  This would be especially true in cases of emergency, or when Torah law was only transgressed passively.  If, however, the Rabbis power comes from the people or from the nature of a religious society (and, even perhaps, if it comes from the Torah but not explicitly so), it is difficult to understand how it could ever take precedence over a Biblical law. 

There are, I believe, two ways of explaining how, notwithstanding the above, Rabbinic law could override.  One is to build on the case of "emergency powers."  The Gemara in Yevamot shows that this is an accepted power that the Rabbis have, and it parallels the role of a prophet, another type of religious leader.  While we must also ask how we know that this power exists, if we accept that it is a power of the Rabbis, then their ability to legislate in a way that leads to passive transgression of Biblical law can also be seen as a form of emergency powers.  Since all Rabbinic legislation is to strengthen the religion, then we can argue that emergency powers can be exercised to protect the religion and can allow for active violation on a one-time basis, and for ongoing violation, as long as it comes about passively.  This approach is indicated by a number of Rishonim in Yevamot (Ramban, Rashba, Ritva on 90b), and in other poskim (Semag Positive Commandment 212, based on Yeraim; Beit Yosef Orah Hayyim 418, end).  The problem with this, however, is that it is a little incongruous to think that all Rabbinic legislation that overrides Biblical law - including, say, not blowing the shofar when Rosh HaShana falls on Shabbat - is based on the concept of "emergency powers."  And, as a student pointed out to me, we know how the concept of emergency powers can be applied beyond recognizable boundaries, as is evidenced by the case of Egypt, which has been under emergency law for almost three decades.

The other way to approach this is to consider parallels where Biblical law can be overridden in a passive manner.  The most obvious parallel is that of human dignity.  Human dignity is understood to be a Biblical concept, and it has the power to allow for the passive transgression of Biblical law (Berakhot 19b).  The principle seems to be: a halakhically-defined Torah value can override Biblical law, at least passively.  Now, this does not apply to anything we call a Torah value.  It has to be halakhically defined and acknowledged to have this power.   Another example of this may be that of tza'ar ba'alei chaim, which, once recognized by the Gemara to be a Torah value with halakhic weight, can also override certain restrictions.  If this is correct, then, it is possible that Rabbinic legislation is an embodiment of defined Torah values.  First, the value of respecting Rabbinic authority is implicit in every act of Rabbinic legislation.  Beyond that, the Rabbis legislate to uphold Torah values.  As such, every act of legislation is an implicit statement that a Torah value here is at stake, and if the legislation is not followed, may be compromised.  As such, every legislation recognizes and gives weight to a relevant Torah value applied in a given situation.  As such, it is this recognized Torah value that allows and even mandates us to set aside a Biblical law, as long as it will only be transgressed passively.

We have explored some of the foundations of the Rabbinic power to legislate.  More can be said about when they choose to use their power to override Biblical law, and under what parameters will they do so.  It goes without saying that one cannot choose on his or her own to decide that a Rabbinic law or Torah value has such power.  We will only act in such a way when there is explicit guidance to do so.  But when we are mandated to follow the Rabbis even against Torah law, it is these principles and values which are at play.