(2011/5771)

Kol Torah is proud to present this fascinating and thought provoking article from Rabbi Shmuel Kadosh of New York. As always, we welcome your thoughts and comments.

One of the bedrock principles of Halachah is that Rabbinic laws in the Talmud are binding even when the rationale behind their enactment no longer applies. Talmudic laws can be revoked only by a greater and larger court (Rambam, Hilchot Mamrim 2:2-3). Since every post-Talmudic authority is by definition inferior to the Sages of the Talmud, the laws articulated in the Talmud are de facto irrevocable. This principle explains the endurance of a great diversity of Rabbinic laws which seemingly no longer make sense in the present day, from the prohibition of taking medicine on Shabbat for one who is not seriously ill (prohibited lest you grind medicine)[1] to the observance of the Second Festival Day of the Diaspora[2] (instituted lest the Jewish calendar be forgotten). However, a careful examination of the Rishonim presents a more nuanced perspective on the revocability of Rabbinic laws whose reasons no longer apply. More specifically, the Ba’alei HaTosafot and the Chachmei Ashekenaz employ a variety of rationales to revoke such Rabbinic laws, while Rambam generally rejects this approach, and maintains that Rabbinic laws are binding, even though the reason for the law does not apply. The Shulchan Aruch does not adopt a consistent approach towards this issue, occasionally siding with the Tosafists, though more often with the Rambam.[3] Part I outlines the Talmudic basis for the irrevocability of Rabbinic laws; Part II examines three examples in which Rambam and the Tosafists disagree about whether a Talmudic law is binding, and the law’s treatment in the Shulchan Aruch. This article does not seek to present an exhaustive list of every theory by which Rishonim abrogated Talmudic laws.[4]

I.

The irrevocability of Rabbinic laws finds its Talmudic basis in two sources, Beitzah 5a, and Eduyot 1:5-6.

A. Davar SheBeMinyan

Beitzah 5a articulates the rule that “Kol Davar SheBeMinyan Tzarich Minyan Acheir LeHatiro,” “Every law decided by a majority requires a subsequent majority to permit it.”

The Talmud provides two scriptural bases for the derivation of this principle. The first comes from God’s command to abstain from marital relations in preparation for Matan Torah (Shemot 19:15). In the retelling of Matan Torah in Devarim, God commands the people, “Go return to your tents” (5:26), which Chazal interpret as a license to resume marital relations. The abstention of marital relations was enacted in order to prepare for Matan Torah, and therefore, their resumption should automatically follow once Matan Torah concluded. Since the Torah found it necessary to explicitly permit marital relations, it follows that laws require explicit revocation, even where the reason for their enactment is void. The second Biblical derivation comes from God’s command not to ascend Mt. Sinai during Matan Torah. Yet the verse says that ascending the mountain is permitted only after the trumpet blasts (Ex. 19:13). The prohibition of going near the mountain was enacted because of Matan Torah, and should logically expire once it ended. Since the Torah found it necessary to explicitly allow ascending the mountain, it demonstrates that laws whose reasons no longer apply still require explicit revocation. The final proof cited by the Talmud demonstrates this principle with regard to Rabbinic laws. The Sages legislated that people living within a day’s journey of Yerushalyim were required to bring their Kerem Revai to Jerusalem, rather than redeeming it and bringing the money to Jerusalem. The purpose of this law was so that the markets of Jerusalem would be festooned with fruit. After the destruction of the Temple, Rav Yochanan ben Zakkai revoked this law because there was no point to beautify Jerusalem when it was a pagan city. The Talmud explains that the law required explicit revocation, and without it, would still be binding despite the rationale for the law being void. What emerges from these three cases is one clear rule, followed by two deep ambiguities about this rule. The Talmud clearly envisions that a Davar SheBeminyan – some form of a Rabbinic law – requires a subsequent majority to permit it. What is unclear from the Talmud is (a) what types of Rabbinic laws are categorized as a Davar SheBeminyan—does it include all Rabbinic laws in the Talmud, or only a discrete subset?; and (b) what type of subsequent majority is required to revoke the law—does the later court need to be of equal or greater stature than the enacting court, or is any subsequent court sufficient?

B. Gadol BeChachmah UVeMinyan

The Mishnah in Eduyot (1:5)asks why minority opinions are recorded if the law follows the majority and provides two answers to this question by the anonymous Tanna Kama, and Rabbi Yehudah (Eduyot 1:6). Rabbi Yehudah answers that minority opinions are recorded in order to reject them in perpetuity. Should someone describe a minority opinion as normative, we tell him that this is a minority opinion, and has been rejected. The Tanna Kama’s answer is the source of a basic dispute between Rambam and the Raavad.

Rambam explains the Tanna Kama as saying that even if a court relied on a minority opinion, a subsequent court cannot revoke the decision of the earlier tribunal (ostensibly on the basis of its reliance on a minority opinion), unless the subsequent court is bigger and better than the earlier court. Thus, Rambam understands that Rabbi Yehudah and the Tanna Kamma fundamentally agree that subsequent courts can never revoke the decisions of earlier courts, unless the subsequent court is superior. Raavad writes that minority opinions are recorded so that a subsequent inferior court can rely on them to revoke the decision of an earlier superior court.[5] In other words, both the Rambam and Raavad agree that in general, a later court can only revoke the decisions of an earlier court if the later court is superior. Rambam holds this rule is pretty much absolute, while Raavad holds that later inferior courts can rely on the minority decisions of prior courts to revoke subsequent superior courts.

These Mishnayot articulate a requirement that a later court be superior to the earlier court if it wishes to revoke the earlier court's laws. However, it is unclear under what circumstances this revocation occurs: does the reason for the law still apply or not? Is the only time we require a superior court for revocation when the reason for the law still applies, or do we require a superior court even when the reason for the law does not apply?

What is the relationship between Beitzah 5a and Eduyot and their attendant rules? Rambam (Hilchot Mamrim 2:2-3) seems to synthesize the two texts, and mandates that all Rabbinic laws, even those whose reasons no longer apply, require a superior court to revoke them. Raavad argues that only when the reason still applies is a superior court required. However, when the reason for the law does not apply, even an inferior court can revoke the law.[6]

Next week we will, IY”H, present the conclusion of Rabbi Kadosh’s article.

[1] See Shabbat 53b (reason for prohibition), R. Tzvi Schachter, Nefesh HaRav 173 (quoting R. Joseph B. Soloveitchik as saying that it is still prohibited to take medicine on Shabbat despite the fact that we no longer grind our medicines because Rabbinic laws whose reasons no longer apply are still binding.). But see, R. Avraham Chaim Naeh, Ketzot HaShulchan 134:4 n.7(2) who suggests leniency with respect to this prohibition because its reason does not apply.

[2] See Beitzah 4b and commentary of Rabbeinu Hananel ad loc., R. Isaac HaLevi Bamberger, Responsa Yad HaLevi 1:99 (arguing inter alia that the Yom Tov Sheni should still be observed because we cannot abrogate Rabbinic laws).

[3] This article will not address internal Talmudic discussions regarding how later generations of Sages had the authority to revoke laws enacted by earlier generations. See e.g., Avodah Zarah 35b (R. Yehudah HaNassi was able to revoke the prohibition of Beit Shammai against gentile oil because the prohibition lacked communal acceptance). Such cases will not be discussed because it can be argued that cases of inter-Talmudic revocation have no value as a precedent for contemporary Halachic discourse because the Sages of the Talmud had a greater degree of judicial authority beyond any post-Talmudic authority.

[4] For a nearly exhaustive survey of all Rabbinic laws revoked by the Rishonim, see R. Aryeh Carmel and Prof. Yehudah Levi, “Takkanot U’Gzeirot SheBatel Ta’aman”, HaMayan 25:3, (Nissan 5745) 3-11 (part 1), and 25:4 (Tammuz 5745) (part 2).

[5] The basis for the debate between the Rambam and Ravaad is their differing Mishnah texts, more specifically, whether the word “Yismoch” in Mishnah 5 contains a Vav.

[6] Ravaad’s proof that an inferior court can revoke a law whose reason does not apply is that Rav Yochanan ben Zakkai had the authority to revoke the law requiring that Kerem Revai be brought to Yerushalayim despite being inferior to the enacting court. His inferior status is demonstrated by his identification in the Talmud (Bava Batra 134a) as being the weakest of Hillel’s eighty students.