“He [Maimonides] writes that the Halachik component of “the Babylonian Talmud is binding on all Israel… because all the customs, decrees and institutions mentioned in the Talmud received the assent of all Israel”. Thus, only the “customs, decrees and institutions”, the Halachik elements, received “the assent of all Israel”.
He makes this statement to support his position that Rambam held that we are not bound to accept the Aggadic discussions in the Talmud. We are only bound to the Halachik ones. That is however not where I want to focus. I want to zero in on the quote from Mishne Torah because the way the author presents it is a complete misinterpretation and shows a lack of Halachik expertise. The implication is that the only reason we are currently bound, according to Rambam, to Talmudic law is because it was accepted by all of Israel and not because there is an inviolable Mesora that binds us. The author also uses this quote to support another one of his positions that he tries to foist on Rambam claiming that he did not accept the primacy of earlier sources over later ones because they were greater. He refers to a book by Menachem Kellner, which I have but have not read who supposedly makes that claim too. His argument is that as halachot are dependent on “acceptance”, precedence does not imply greatness. Here is how he puts it:
“Maimonides recognized the authority of the earlier Rabbis and accepted their decisions but only because each of their rulings “derives from the role they played in Jewish history” [highlighted in the original I guess a quote from Kellner]. Maimonides was thus expressing the belief that the rabbinic decisions were not correct per se, but, since the majority of Jews had decided to accept the early rabbis’ Halachik decisions, they became authoritative”.
Here are Rambam’s words in the original – (Introduction to Mishne Torah)
ומשני התלמודין, ומן התוספתא, ומספרא ומספרי, ומן התוספתות--מכולם
יתבאר האסור והמותר, והטמא והטהור, והחייב והפטור, והכשר והפסול, כמו
שהעתיקו איש מפי איש מפי משה מסיניי
גם יתבאר מהם דברים שגזרו חכמים ונביאים שבכל דור ודור, לעשות סייג לתורה, כמו ששמעו ממשה בפירוש "ושמרתם את משמרתי" (ויקרא יח,ל),
שאמר עשו משמרת למשמרתי.
וכן יתבאר מהם המנהגות והתקנות שהתקינו או שנהגו בכל דור
ודור, כמו שראו בית דין של אותו הדור, לפי שאסור לסור מהם, שנאמר "לא
תסור, מכל הדבר אשר יגידו לך--ימין ושמאל" (ראה דברים יז,יא).
וכן משפטים ודינין פלאיים שלא קיבלו אותן ממשה, ודנו בהן
בית דין הגדול של אותו הדור במידות שהתורה נדרשת בהן, ופסקו אותן הזקנים,
וגמרו שהדין כך הוא. הכול חיבר רב אשי בתלמוד, מימות משה ועד ימיו.
There are several groupings of halachot, each with its own characteristics, and their compilation makes up the bulk of the two Talmudim, the Bavli and the Yerushalmi. The first group is made up of the halachot that were transmitted directly from Moshe at Sinai. In his introduction to Pirush Hamishna, Rambam is more detailed and explains that this group is composed of two subgroups – Pirushim Mekubalim Mimoshe (PMM) and Halacha Lemoshe Misinai (HLM). PMM are the oral explanations Moshe received on how to practice the Mitzvot and interpret the text, for example, that Pri Etz Hadar is Etrog or that Anaf Etz Avot is Hadas. These transmissions, Rambam is adamant, were never forgotten and there is no argument about them. Much has been written about this position of Rambam and many have questioned it, but that is Rambam’s adamant position. HLM too according to Rambam, were unanimous. He gives a partial listing of them in his introduction to Pirush Hamishna. There is much controversy about how to discern which HLM is really Misinai, whether they all have a status of De’oraita or not, but again that is Rambam’s adamant position that there cannot be arguments about them. In other words, if we see an argument in the Gemara about a Halacha, according to Rambam they cannot belong to this first group. The halachot in this group are binding by definition, just as the written text is binding. It does not depend on whether they were accepted by all Israel or not. As we will see later, the Talmud is the last reliable compilation of these transmitted laws and traditions.
The second group is comprised of laws that were created by the rabbis to extend the Torah law to prevent transgressions of the core law. These are referred to generally as Gezeirot Derabanan. Arguments are common and discussions went on at times for generations, whether to implement such a law. The process here was that eventually the Sanhedrin debated these laws and if the majority agreed, implemented them. Once implemented, they had to be accepted by the people. If after a time the people did not accept them and the practice did not spread across a majority, they were abolished. If they did, they became immutable and can never be changed. (An example of such a Halacha, that is immutable, is the prohibition of mixing bird’s meat and milk. One that did not make it is the prohibition of eating oil from a gentile.)
A third group are legal conventions established by the Sanhedrin addressing new or problematic practices that arise in society, generally dealing with commerce and monetary issues. Similarly, Sanhedrin established customs in ritualistic law that they felt were important for religious reasons. This group too needed popular acceptance in practice for them to become immutable.
It is important to note that these last two groups required two conditions: promulgation by a Sanhedrin and acceptance. Both conditions are required to make them binding.
The fourth group is comprised of laws that were promulgated over time by the Sanhedrin, using the established hermeneutic rules for comparing cases. There were many discussions before these laws were established and usually required a majority vote. Interestingly these laws were not immutable and in fact, any Sanhedrin could overrule an earlier one. Reinterpretation was open and permitted as long as there was a Sanhedrin. Note that this applies only to this category while all the others are immutable.
נמצא רבינא ורב אשי וחבריהם, סוף גדולי חכמי ישראל המעתיקים תורה שבעל פה,
ושגזרו גזירות והתקינו תקנות והנהיגו מנהגות ופשטו גזירותם ותקנותם
ומנהגותם בכל ישראל, בכל מקומות מושבותיהם.
Having detailed the composition of the Talmudim and described Torah Sheba’al Peh (TSBP), the whole corpus of Oral Law, Rambam explains that in fact Ravina, Rav Ashi and their contemporaries, were the last transmitters (more exactly copiers) of the TSBP. Included in this corpus of reported rulings are the decisions of the last Sanhedrin that could use the hermeneutic rules to change how new developments were looked upon by the Torah, thus making those rulings binding until a Sanhedrin can be reconvened. Included too are the ordinances promulgated by Sanhedrin that required acceptance and were accepted by “all the Jews wherever they lived”, thus making them binding eternally.
With this last statement, Rambam summarizes the authority of the Talmud. It is the only reliable repository of all the rulings that are binding on the Jewish people. It has nothing to do with acceptance but with it being the correct transmission of the Oral Law going back to Moshe.
Rambam now addresses a completely new issue. He outlines the reality, where arguments can arise even with the Talmud theoretically being binding. One possibility is new Takanot and Gezeirot that a Beit Din sees fit and necessary to address a specific situation that may arise. The other is when there is a difference of opinion on how to interpret a Talmudic ruling or how to apply it to a new situation or both. In both cases, the local Beit Din has jurisdiction but the ruling is not universally binding.
לפיכך אין כופין אנשי מדינה זו לנהוג במנהג מדינה אחרת, ואין אומרין לבית
דין זה לגזור גזירה שגזרה בית דין אחר במדינתו. וכן אם למד אחד מן
הגאונים שדרך המשפט כך הוא, ונתבאר לבית דין אחר שעמד אחריו שאין זה דרך
המשפט הכתוב בתלמוד--אין שומעין לראשון, אלא למי שהדעת נוטה לדבריו, בין
ראשון, בין אחרון.
As the Talmud was the last reliable source for the tradition of binding Law, Rambam argues that any decision beyond the Talmudic law, whether it is an interpretation or extension of Talmudic law or a new ordinance is not binding on the whole of the Jewish people. It is only a localized ruling that applies only to the areas the court that made the ruling has jurisdiction. Other Batei Din whether contemporary or later, are not bound by these decisions.
But what about the ordinances (Takanot and Gezeirot) that we find in the Talmud that were promulgated after the Sanhedrin no longer existed? What about the post Sanhedrin laws that we find in the Talmud that use hermeneutic rules to address new cases and could have the imprimatur of a majority vote? What authority do these laws have to be binding on all of Israel? Why are they more authoritative than the post Talmudic laws? After all, both of these lack the authority of Sanhedrin?
אבל כל הדברים שבתלמוד הבבלי, חייבין כל בית ישראל ללכת בהם; וכופין כל
עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמים שבתלמוד, ולגזור
גזירותם וללכת בתקנותם.
הואיל וכל אותן הדברים שבתלמוד הסכימו עליהם כל ישראל,
ואותן החכמים שהתקינו או שגזרו או שהנהיגו או שדנו דין ולמדו שהמשפט כך
הוא הם כל חכמי ישראל או רובן, והם ששמעו הקבלה בעיקרי התורה כולה, איש
מפי איש עד משה רבנו.
Because the Talmudic laws enjoyed the agreement of all of Israel and furthermore, those who promulgated these rulings were the majority of the Chachmei Israel, the juridical experts, and at the same time the last reliable transmitters and interpreters of the law, these laws are universally binding unlike post Talmudic ordinances and laws. It is for these particular laws, the post Sanhedrin ones, that agreement plays an authoritative role. Drazin bases his argument on acceptance on this last statement of Rambam. As we can see, it is a complete misreading of the text and has no basis in it. The authority of the law in general comes from the basic laws being traceable back to Moshe as Rambam puts it
שהעתיקו איש מפי איש מפי משה מסיניי
Clearly the older the authority the more reliable it is. Rambam never said that the earlier authorities were recognized because their ruling “derives from the role they played in Jewish history”. On the contrary, it is exactly those rabbis that were the transmitters of the early rulings that were recognized as authoritative. They were the authentic transmitters of the Mesora which is binding on all of Israel because it is based on Mosaic Law, the original Law.
 The real source for this supposed position is the Pirush Hamishna in three different places, where Rambam says that whenever there is a rabbinical argument about a non-praxis related matter we cannot decide the Halacha according to one of the positions; that is very different from a blanket rejection of Talmudic Aggadah. The author does not even refer here to that source.
 He repeats this further on page 24 in another context and I will address that in a follow up post.
 in this quote seen as a subgroup of the last one, in Pirush Hamishna Rambam sees them as a separate group.