Wednesday, December 10, 2008

The Basis For Talmudic Authority - Is Halacha "Correct"? Were The Early Rabbis Superhuman?

In my previous post, based on my reading of Rambam’s introduction to Mishne Torah, I showed that the core of Talmudic authority are the Transmitters of TSBP, the גדולי חכמי ישראל המעתיקים תורה שבעל פה coupled with the subsequent Sanhedrin. The Sanhedrin had the authority to extrapolate and extend laws to variants and new cases using hermeneutics and promulgate new legal ordinances - Gezeirot, Takanot and Minhagim. This authority is not based on acceptance and agreement but is legally binding because it is “correct”.

This morning I took the time to read chapter 6 of Professor Menachem Kellner’s book “Maimonides on The Decline of The Generations”, where he analyzes the same text and though he reads it a little differently, (of course I think I am right!) he does not at all imply that the laws are in any way not “correct”. His main argument is that Rambam did not view the earlier Rabbis as superhuman, but rather their authority stems from historical circumstances which gave them certain advantages – the existence of a central authority and the gathering of a great number of scholars who had reliable transmitted traditions. I have no problem with that position and in fact subscribe to it as being Rambam’s perspective as long as we accept that the authority of the authentic transmitters is inviolable and should be the basis for subsequent Halacha. That is very different from the point Rabbi Dr. Drazin tries to make in his book that all Torah law is based upon acceptance and not because of its “correctness”. Drazin however does not explain what constitutes “correct” in the context of Halacha. I do not see how one can argue for objective correctness unless one subscribes to a mystical basis for Halacha, which we know Rambam rejects. I think that it is quite clear what has been promulgated under the system of legal authority - transmission of TSBP and the authority of the Sanhedrin – is “correct” in this context.

On page 23 Drazin recruits the Beit Yosef as another denier of what he refers to as the doctrine of “the decline of the generations”. Here is what Drazin says.

In his [Beit Yosef] comment on Maimonides’ Laws of the rebellious elder 2:1-3, he posed the question: If Maimonides is correct and later Rabbis are more intelligent than earlier ones, why did the Talmudic sages not dispute the earlier rabbis whose ideas are in the Mishna? He answered his own question: “it is possible to say that when the Mishna was completed it was established and accepted that later generations would not dispute the earlier generations”. This is precisely Maimonides position in his introduction to Mishne Torah.”

This statement is an illustration how when one has no ability to read a text and comprehend it in its proper context can mislead the uninformed. Let us turn to his source and see what it really says.

Hilchot Mamrim 2:1 legislates –

א בית דין הגדול שדרשו באחת מן המידות כפי מה שנראה בעיניהם שהדין
כך, ודנו דין, ועמד אחריהם בית דין אחר, ונראה לו טעם אחר לסתור אותו
הדין--הרי זה סותר, ודן כפי מה שייראה בעיניו: שנאמר "אל השופט, אשר יהיה
בימים ההם" (דברים יז,ט)—
אין אתה חייב ללכת, אלא אחר בית דין שבדורך.

As we saw in the previous post, there is a category of laws that are based on Sanhedrin’s ability to extrapolate Mosaic Law to new cases and situations using the rules of Hermeneutics – the famous 13 Midot of Rabbi Ishmael. This is the only category of Law that precedent rulings are not binding. Any subsequent Beit Din can overturn the ruling of a previous one, no matter how great the earlier ones were, if this Beit Din can present a good argument and garner a majority. Although Rambam clearly states בית דין הגדול which refers to a constituted Sanhedrin of 71 judges (this point is noted by Rav Elhanan Wasserman) Beit Yosef assumes that all Batei Din can do so even after the abolishment of the Sanhedrin. He therefore asks why is it that we find in the Gemara that Amoraim would not argue with Tannaim even in cases that used Hermeneutic rules. He answers that it is by convention. The discussion has nothing to do with “greatness” or “decline of the generations”. It is a discussion of the rules of the legal system and applies to a specific category of laws. All agree that if we had Sanhedrin today, they could overturn laws based on Hermeneutics that were promulgated even if by the Beit Din of Moshe or Yehoshua. Beit Yosef read Rambam as saying that even without Sanhedrin the laws derived through hermeneutics could be overturned. He therefore was forced to assume convention as being the basis for the Amoraim’s acceptance of these types of rulings reported in Mishna.

As I said earlier, I agree that Rambam does not see authority of the earlier Rabbis based on superhuman greatness but rather on circumstances which gave them the opportunity to be the authentic transmitters of TSBP but that is very different from a generalized statement that Torah authority is based on acceptance and is not necessarily “correct”.

In his summary on this topic, Drazin writes –

A basic doctrine among many Orthodox Jews is the conviction that the earlier generations of rabbis were intellectually superior to their descendants due to a natural decline in intelligence from one generation to the next. Those who hold this view use it to support their decision not to question the ruling of earlier rabbis. They take a passive, non-questioning stance in regard to Halacha.”

Again, Drazin shows that he has very little familiarity with the Halachik system. One has to pick any Halacha in Shulchan Aruch, trace it from its origins in the Talmud through Rif, Rambam, Rosh, Tur, Beit Yosef, Bach, Taz, Magen Avraham and finally the Aruch Hashulchan and the Mishna Berurah and be amazed at the different perspectives on each Halacha. I have not yet encountered a Posek who takes a “passive, non-questioning stance in regard to Halacha”. However all Possekim, whether of Rambam’s school who do not accept a superhuman explanation for earlier authority or from the other schools who do, agree that the earlier generations, the authentic transmitters of TSBP have precedence in Halacha. Not only are the transmitted Laws binding but so too are the decisions they made, as recorded in the Talmud, binding. And yes, they are “correct”.


  1. Drazin recruits the Beit Yosef as another denier of what he refers to as the doctrine of “the decline of the generations”

    Rav Shlomo Fisher learns the Beit Yosef the same way.

  2. I have not yet encountered a Posek who takes a “passive, non-questioning stance in regard to Halacha”

    You're taking a very uncharitable reading. It's obvious from the context that all that he means is that they don't challenge the rulings of authorities from earlier epochs.

  3. i really would like to understand the beit Yosef's reading of the Rambam. It seems obvious that he's not refering to any beit din. what is really the differance between his position and Dr. drazin?

  4. Anonymous.

    Drazin says:

    he [BY} posed the question: If Maimonides is correct and later Rabbis are more intelligent than earlier ones

    Where did BY say that Rambam says that? All he said is that in one category - Hermeneutically based law - later generations may overturn it. In all other categories the decisions of the early Rabbis stands immutable. He therefore asks a practical question - why in the case of Hermeneutical laws can Amoraim not overturn Tannaim? He says that it was an agreement reached by Rabbis not to do so even though de jure it should have been possible. (R. Wasserman answers because Tannaim had a sanhedrin unlike Amoraim).

    Why that is so is a different discussion and has nothing to do with intelligence or lack thereof.