Authority derived from the Acceptance of the Masses by Rav Shlomo Fisher (translated by Daniel Eidensohn) The Torah

has a legal characteristic which is based on the concept of bris (covenant). In fact the Rishonim were very interested in the question as to why it was necessary for G-d to establish a bris with the Jews for them to accept the observance of mitzvos. If there hadn't been a bris would that have meant that no one would have to obey G-d? If you want to say in fact that they would not have been obligated to keep mitzvos without a bris - then what is the purpose of the bris? What in reality requires them to fulfill that which they have accepted to do? Isn't it simply because that is G-d's will and He wanted the Torah to have a legal character. However it is known that a legal system is based on a bris which requires the willing acceptance of the community. This idea that a legal system is dependent on the acceptance of the governed is expressed by the Rashbam (Bava Basra 54b). He explained that Shmuel's principle of dina d'malchusa dina (the law of the land is halachically binding) simply means that all the members of the kingdom willingly accepted the decrees of the king and his laws. In other words the acceptance of the laws is the result of the individual wanting to accept the laws and thus forces himself to do so. (I discuss this in greater length is my drasha to Shabbos Nachamu as to why G-d saw fit to give the Torah in a legal manner.) Let's explore the halachic significance of the acceptance of the community We find that the Kesef Mishna (Hilchos Mamrim 2:1) writes, "What is the reason that an Amora doesn't dispute the words of a Tanna...? We can suggest that from the time of the finishing of the Mishna it was accepted that later generations would not be able to disagree with the Mishna. This was also done when the Talmud was finished that it was agreed that no one from then on had the right to disagree with it." Rav Elchonon Wasserman comments on this Kesef Mishna, "This requires further thought to make understandable the nature of this acceptance. Why should it have the power to prevent any disagreement including the rejecting of the acceptance itself while if there was no acceptance they would have been able to disagree with it?" He answers that finishing of the Mishna was with the gathering of all the Sages of Israel or at least the majority. And this happened also with the finishing of the Talmud. And it is possible that at the finishing of the Talmud they in fact had the power to disagree with the Mishna..." However look at the Rif at the end of Eiruvin where he writes, "The Babylonian Talmud is more authoritative then the Jerusalem Talmud because it is more recent." It would seem that there is no need for this explanation for the authority of the Babylonian Talmud. It should be sufficient that the Babylonian Talmud was finished with the gathering of all the Sages and therefore it has the status of Sanhedrin. In contrast the Jerusalem Talmud where there is no mention that it was finished with a gather of the Sages of Israel does not have the power of Sanhedrin. [See my derasha where I attempt to answer this]. I don't know who revealed to them what happened historically when there is no evidence. In fact the Kesef Mishna is correct. [Similarly Rabbeinu Yona's [beginning of Avos]

Authority derived from the Acceptance of the Masses by Rav Shlomo Fisher (translated by Daniel Eidensohn) historical claims regarding the writing of the Oral Law and the prohibition of adding or subtracting from it is also problematic.] The basis of the authority of public acceptance is stated by the Rivash (#399) in the name of the Ramban. "All acceptance by the masses for the sake of a protective fence to the Torah is like the acceptance of the Torah itself and it becomes obligatory not only for those who accepted it but also their descendants forever. This is true even if they did not actually agree to keep it but merely conducted themselves as if they accepted it - as a fence to the Torah. This principle that the acceptance of the masses itself obligates future generations is explicit in the Torah and commentaries and is if it were divinely given.... Look at Rav Elochon Wasserman's Divrei Sofrim (1:14) where he says, It would appear from the Ramban (Comments to Sefer HaMitzvos) that he disagrees with the Rambam in two points 1) regarding the verses of "You should do everything they tell you" and "don't deviate from what they tell you" It seems that the Rambam says these verses apply to rabbinic mitzvos and prohibitions... It also seems from the Ramban's pointing out that rabbinic halachos are less severe than Torah prohibitions that they can not be based on the Torah at all. ... If the Ramban was only disagreeing with the Ramban regarding the significance of the verse lo sasur (don't deviate) but that he agreed that obeying the words of the Sages is a Torah obligation whether from a verse, logic or halacha l'Moshe - then the question he asks of the Ramban why Rabbinic laws are less severe would also apply to him. What difference what the Torah sources of Rabbinic laws because they would all require that in a case of doubt that one should be machmir. Therefore one is forced to say that the Ramban's view is that there is absolutely no Torah command to obey the Sages. But this is an astounding view! If there is no Torah source for listening to the Sages what is the reason that we are obligated to listen to them and not violate their words since there is absolutely no verse, halacha or sevara (common sense)? Because even if you say it is a sevara then the question of why rabbinic halacha is less severe than Torah laws reappears. This is because we see in many places in the Talmud the principle "What needs is there for a verse since there is a sevara." That clearly shows that there is no difference in whether a halacha is generated from a verse or sevara. In fact Rav Elchonon Wasserman writes that he asked Rav Shimon Shkop about this Ramban. He replied that the Ramban hold that the obligation to listen to the Sages is because of sevara... While he initially questioned this view he changed his mind as seen by what he wrote in Divrei Sofrim. Nevertheless the views of Rav Shimon Shkop are prohibited to listen to and it is very surprising that Rav Elchonon praised them. The Mabit in fact accepts the view that the Ramban believes that there is no source in the Torah to listen to the Sages and that the verse is simply an asmachta. This would apparently greatly reduce the significance of rabbinic laws! However it appears from the Mabit that the source of authority is from tradition (kabbala) and G-d gave them the right to make changes which they based on understanding hints in the verses... The Mabit says that they have a tradition to make protective measures.. This is also the language of the Ramban. This idea that their authority is based on G-d's authorization is discussed in detail in the sefer Yesod HaAvodah.... 2

Authority derived from the Acceptance of the Masses by Rav Shlomo Fisher (translated by Daniel Eidensohn) However all of these assertions that rabbinic authority is from G-d has no basis. In particular to make up an assertion that there was a halacha l'Moshe for their authority is simply incredible. In fact the basis of rabbinical authority is the fact that the entire Jewish people accepted their authority on themselves. This is what was cited before from the Rivash in the name of the Ramban.... In other words, the principle is that the acceptance by the masses of rabbinic authority is what makes it obligatory for all generations. This is explicit in the Torah, Neviim and in Kesuvim in many places. The obligation is the consequence of the acceptance on themselves of the Jewish people. The reason that rabbinic law is less severe than Torah law is simply because they didn't accept it to have the same severity as Torah law but rather to be lenient in cases of doubt etc. This in fact is the view of the Kesef Mishneh when he said that from the day of the finishing of the Mishneh it was accepted that the later generations could not argue with the earlier generations. And this was true also with the finishing of the Talmud... Regarding the authority of the Jerusalem Talmud, since it wasn't properly edited (Ravad Hilchos Maaser Sheini 1:10) and there are many errors and few who actually learn it and only one in a generation actually masters it and the rishonim didn't have the opportunity to properly study it because of poverty and other reasons (Chazon Ish O.C. 13:1) therefore all our customs follow the Babylonian Talmud because we accepted that Talmud and not the one from Israel (Rosh 2:10). Thus we see that we never accepted the Jerusalem Talmud to the degree we accepted the Babylonian Talmud.... Regarding the authority of the Jerusalem Talmud, since it wasn't properly edited (Ravad Hilchos Maaser Sheini 1:10) and there are many errors and few who actually learn it and only one in a generation actually masters it and the rishonim didn't have the opportunity to properly study it because of poverty and other reasons (Chazon Ish O.C. 13:1) therefore all our customs follow the Babylonian Talmud because we accepted that Talmud and not the one from Israel (Rosh 2:10). Thus we see that we never accepted the Jerusalem Talmud to the degree we accepted the Babylonian Talmud.... [To return to the Kesef Mishna, we know that the Chazon Ish disagreed with his assertion]. He wrote, "The truth in this matter [of why we don't argue with the Talmud or Mishna] is that the generation immediately after the completion of the Mishna suffered degradation in understanding compared to the authors of the Mishna. That next generation knew with a certainty the truth is always with the earlier generations... The only exception was Rav due to his profound understanding was not inferior to the Tannaim... And this that the Kesef Mishna asserts that the following generation simply accepted not to disagree with the Talmud and Mishna he has not showed those earlier generations any good or kindness by saying this. It was not arbitrary that we decided not to disagree with these earlier generations but rather the truth requires that we not disagree with the Talmud or Mishna. After all how can we disagree when we know that our understanding is inferior to them and that the truth would not be with us if we disagreed with them...? In fact Avoda Zara (9a) states that the first two thousand years of the history of the world are characterized by Torah and this is an allusion to the Tanaim..."

Authority derived from the Acceptance of the Masses by Rav Shlomo Fisher (translated by Daniel Eidensohn) This that the Chazon Ish writes that the generation immediately after the finishing of the Mishna suffered a deterioration in understanding...And they knew for certain that the truth was always with earlier generations... this is extremely astounding! How could it happen such a deterioration happened in a single generation? In fact to the contrary we know that a later Amora could disagree with an earlier Amora - even one that was a number of generations earlier. Similarly a later Tanna could disagree with an earlier Tanna - even one that was a number of generations earlier. In fact it was only prohibited for an Amora to disagree with a Tanna even if they were only separated by a single generation. This is also true for Rishonim and Achronim. A Rishon is allowed to disagree with a Rishon from many generations previously. Similarly an Acharon can disagree with an Achron even if the Achron lived hundreds of years before. In contrast an Acharon can not disagree with a Rishon - even if they lived at approximately the same time. Bottom line the Chazon Ish's assertion is not correct. See Yoma (85b), Megila (7a), Chagiga (10a) "Against the proof of Samuel certainly no decisive objection can be brought. Said Rabina: This bears out the popular saying, Better is one grain of sharp pepper than a basket full of pumpkins." See also Bava Metzia 71a where Rebbe had a question he couldn't answer but an Amora readily answered it. See also (Gittin 56b).. In fact we find many cases of Amoraim disagreeing with Tanaim concerning their drashos and reasons for halacha (See Rashash Shabbos 70b). Regarding Agada we even find rishonim arguing with the worlds of Chazal. In fact Rashi and Ramban's Torah commentary are full of disagreement with Chazal. This is has been discussed by Ohr Hachaim in parshas Bereishis and other places. See Sanhedrin (52b) concerning the daughter of a cohen who has committed adultery and Rav Chama made a serious mistake in terms of punishment. The Maharsha says that this can be explained that he didn't make a mistake but it served the needs of the times... It wasn't a case of disagreeing with the din of the Talmud because there is no significance consequence in terms of guilt or innocence. Similarly Rashash (Pesachim 74a) notes that the Rambam has already given us permission to explain the Mishna differently than what the gemora does - as long as there no consequence in halacha. Also see Tosfos Yom Tov and the Gra... Look at Takfu Cohen (#77) by the Shach where he writes that even today a person can clarify with logical proofs and answer questions left unresolved by the Talmud. The Tumim disagrees and says, "It is harmful to resolve issues that the Rishonim and Achronim were unable to resolve. How can we with our puny understanding and logic is far from being correct and being prone to error be able to resolve it with our power of logic and reasoning? This just encourages inappropriate activity by students who have not properly been trained and to be arrogant and brazen in halacha. They will end up following their hearts and declare the pure to be impure since they rely on their immature reasoning. Therefore it is better to rely on the traditional understanding. It is only where there is an unresolved rabbinic dispute that one can say that he is inclined to a particular approach...." 4

Authority derived from the Acceptance of the Masses by Rav Shlomo Fisher (translated by Daniel Eidensohn)

Thus we see that the Tumim has no fundamental disagreement with the Shach regarding the ability for post-Talmudic sages to resolve Talmudic disputes. It is simply strongly warning the Shach not to publicize this view because of concern for misuse.... Also see Shaloh (Maamar Torah Shel b'Peh near the end) who seems to agree with the Shach. We also see from the Yam Shel Shlomo (Bava Kama 8:13) that the Rosh, Bartenura and Tosfos Yom Tov also resolved issues left undecided as Taku in the Talmud but he disagree with their right to do so. Thus they take a stronger position than the Shach. Bottom line we see that there are clearly authorities that permit answering unresolved questions in the Talmud but not to disagree with the Talmud. Thus the Talmudic authority is based on what was accepted by the people. Thus poskim such as the Shach are saying that it was accepted by the people not to disagree with the Talmud but not answering unresolved questions was not accepted. However it is clear that everyone agrees that anything in the Talmud which does not have halachic can be disagreed with. (However this is all on the theoretically level, but on the level of practice the Tumim writes, "We have already written that there is no one in our generation who has the ability to solve unresolved halachic disputes from the early generations. In fact we see in the Maharik (#161), 'There is absolutely no one in our generation who is able to solve...' If already in the time of the Maharik there was no one so surely in our generation which is an orphaned generation from descended from orphaned generations - due to our many sins we surely are not capable.") We learn from Tosfos (Sukkah 24a) that it is forbidden for an Amora to disagree with the actual halacha stated by a Tanna. However it is permitted to for him to disagree for the reason that the Tanna gave for the halacha in the same way that it is permitted to disagree with his drashos. After all what is the difference between disagreeing with a derasha or with his sevara? Thus the Amoraim accepted the halachos from the Tannaim but they did not necessarily agree with the reasons to the halachos that the Tannaim added to the received halachos. In summary, we see that the correct view of Talmudic authority is that of the Kesef Mishna that the people accepted on themselves not to disagree with it. But this acceptance only applied to the halachos and not to the reasons for the halachos and for agada. This is also a satisfactory answer for problem of why certain medical conditions in animals are considered as treifa even though they are not fatal in our day. Namely that after the finishing of the Talmud it was accepted by all the Jewish people not to change the laws of treifos that are mentioned in the Talmud and this acceptance has the strength of Torah law as we mentioned above. You should not be surprised Torah authority for something which has been accepted. For another example see Nida (66a) that Jewish women accepted upon themselves the chumra that if they saw even a drop of blood the size of a mustard seed that they would be considered nidah...It is agreed by the vast majority of poskim that this chumra has the 5

Authority derived from the Acceptance of the Masses by Rav Shlomo Fisher (translated by Daniel Eidensohn) status today of an actual Torah law...That is because it was fully accepted by the Jewish people as having the severity of a Torah law. Thus we see that the severity of that which has been accepted whether equal or less than a Torah law - is dependent upon how it was accepted. With this principle something rather difficult can be explained. We have clearly established that no one has the ability to disagree with the Talmud and thus the words of the Talmud should take precedence. [This is expressed by the Noda B'Yehuda Tanina (E. H. 79) "You should know how beloved the Talmud is and that its words are engraved on our hearts. The great principle is that the scholars after the finishing of the Talmud are not allowed to disagree with it. In fact if someone wants to disagree with the most minor detail he is not considered a talmid chachom."] Nevertheless if our Tradition disagrees with the Talmud as we find in many cases [see Rabbi Akiva Eiger (Shabbos 55b) regarding gezera shaveh] the halacha follows the Tradition and not the Talmud.... This is because the Jewish people fully accepted Tradition even in those cases where the Talmud disagreed with it. The Chazon Ish objected to the words of the Kesef Mishna by saying, "He did not do a favor or kindness with the early authorities by saying that it was the arbitrary acceptance by the people that gave them authority. Rather it was accepted not to disagree with them because they knew the truth...." However what "favor or kindness" was involved? The acceptance was simply a legal factor in order to make a wall and protective measure for the Torah as are all acceptances as we mentioned in the Rivash before in the name of the Ramban. It is obvious that if the people didn't accept the Talmud then there would have been great destruction for the Torah. (You should realize that this acceptance that we are talking about did not occur at a single discrete point of time no one has claimed that such an event took place. What is meant is the acceptance was developed in the passage of time. In other words, no one can disagree that eventually in the passage of time that the Talmud became accepted by the Jewish people. The language of the Kesef Mishne is that from the day of the finishing of the Talmud it was not permitted to disagree with it... Clearly the term "day" is not meant literally. That is clear from the letter of Rav Sherira Gaon and the Sefer Kabbala of the Ravad and other Rishonim that the finishing of the Talmud did not occur on one particular day or even one particular year but rather it took place over a number of generations.... Regarding the objection from yeridos hadoros (degradations of the generations) [e.g., Shabbos (112b), "If the early generations were like angels..." or Eiruvin (53a), "The hearts of the early generations..."] Tosfos Rid has answered with the parable of the midget standing on the shoulder of a giant. See also Tanis (24a) which indicates that later generations in fact were more learned than earlier generations.... Finally we note that Rav Elchonon Wasserman (Divrei Sofrim #3) wrote, "It appears from the worlds of the Rambam that the agreement of all the sages or most of them has 6

Authority derived from the Acceptance of the Masses by Rav Shlomo Fisher (translated by Daniel Eidensohn) the authority of Sanhedrin... And Sanhedrin itself we have a principle that it only had power if located in its chambers. Therefore if it were found outside it's chambers its rulings were not authoritative. In other words, it was only when Sanhedrin was located in its chambers that it was considered to be Sanhedrin. Thus even if other scholars were superior to those who belonged to Sanhedrin and greater in number nevertheless the Torah decreed that it was prohibited to disagree with the Sanhedrin in any manner. However this limitation only applies to Sanhedrin which is a minority of scholars. But if there were a gathering of all the Jewish scholars or at least the majority no matter where they are located - they have the automatic status of Sanhedrin. Thus it is in reference to this voluntary majority that the Torah says, "Go to the judge that is in your day.." Even at the time when there is no semicha (ordination). This is seen by the fact that at the time of the finishing of the Talmud there was no more ordination and nevertheless all Jews were obligated to listen to them." See Rav Wasserman for the full discussion. All of this was dependent on the acceptance of the community.