In a previous post, I mentioned that in our times – as regards halakhah – there is only the authority of the lawyer and not that of the lawmaker. A “lawmaker” is one who has the legislative capability to make new laws or alter existing ones, whereas the “lawyer” has no such legal capacity. Instead, he is merely qualified to apply the laws as they exist and to work within them. And this is precisely our situation today.
The Rambam, in his haqdamah to the Mishneh Torah, describes the development and institution of the halakhah up until his own time. The demarcation between the rabbinic authorities of talmudic times and those subsequent to them which is made by the Rambam is clear and unambiguous. After the court of Ravina and Rav Ashi – described by the Gemara (Bava Messia 86a) as being “sof hora’ah – the end of halakhic instruction” – what we know of today as “talmudh” was officially closed. The term “talmudh,” as it is used by the Rambam, is not usually an exclusive term for the Babylonian Talmud. It is many times used as a collective term for all of the literature produced by Hazal, which includes both the Bavli and Yerushalmi, Mishnah, Tosefta, Sifra, Sifrei, and several others. So, in the view of the Rambam, the “talmudh” (i.e. the official body of authoritative halakhic literature authored by Hazal) has now become the standard of religious law for subsequent generations that do not have the benefit of a Sanhedrin.
The Rambam explains the statement from Bava Messia regarding Ravina and Rav Ashi as follows:
“Ravina wa-Rav Ashi hem sof hakhmei ha-talmudh – Ravina and Rav Ashi are the end of the Sages of the talmudh” (Mishneh Torah, Haqdamah i:23 – “talmudh” here being used in the general sense)
He then goes on to say:
“…And the purpose of the talmudhin is an explanation of the words of the Mishnah and a clarification of its depths, and also of those things which were originated by each and every beth din from the days of Rabbenu HaQadhosh [i.e. Rabbi Yehudhah HaNassi] until the composition of the talmudh. And from the two talmuds, and from the Tosefta, and from the Sifra and Sifrei, and from the Toseftoth – from all of them – is clarified what is forbidden and what is permitted, what is tamei and what is tahor, who is liable to punishment and who is exempt, the kasher and the pasul, just as it was repeated from person to person all the way back to Mosheh Rabbenu at Sinai…”
So, according to the Rambam, the halakhah is no longer determined in our times from the Sanhedrin, universal courts, etc., but is determined from the works of Hazal taken in aggregate. This aggregation is a complicated matter that has many interpretive rules, but this is the basic principle. And it is not just according to the Rambam, others also affirm this. For instance, Rav Sa`adyah Gaon states in his siddur that the “ba`alei mesorah – possessors of authoritative halakhic tradition” are those whose words are written in “the Mishnah and the Talmud” (pp. 11-12). And these are the bounds that every subsequent rabbi must work within.
The Rambam states this explicitly:
“…And every beth din that arose after the talmudh in every city that issued a decree (gezerah), or issued a, ordinance (taqqanah), or instituted a custom (minhagh) for the inhabitants of the city, or several cities, their practical rulings did not spread to all of Israel [i.e. from a central authority] because of the distance between the places of their dwelling and the disruption of unrestricted travel on the roads. Also, such a beth din is comprised of a few individuals and the beth din ha-gadhol [i.e. the Sanhedrin] comprised of seventy was disbanded several years before the composition of the talmudh. Therefore the men of one city cannot force those of another city to abide by its local custom, and they cannot say to another beth din that they should make the same decree as another beth din in his city. And also if one of the Geonim taught that the proper ruling (derekh ha-mishpat) was a certain way and it was clear to another beth din that arose after him that such a ruling was not the proper ruling (derekh ha-mishpat) as it is written in the talmudh – we do not listen to the first opinion, rather we listen to the one whose opinion makes the best logical sense, whether he came first or came later…”
There are several points to note here:
- What is written in the “talmudh” (the works of Hazal) is the supreme source ofhalakhah since the disbanding of the Sanhedrin. The only arguments that can be acceptable are those made in effort to correctly interpret the talmudh. Rambam makes this explicit statement in his Pirush HaMishnayoth: “”The legal activity of all who arose after Ravina and Rav Ashi is confined to the understanding of the work they composed, to which it is forbidden to add and from which it is forbidden to detract.” (Haqdamah i:46, Qafih Edition).
- The principle of halakhah ke-bathra’ei does not apply to anyone who comes after thetalmudh is closed – including the Geonim.
- The standard for all subsequent legal positions is their cogency when compared to the text of the talmudh.
So, the position of all rabbinic persons today is that of an interpreter of the existing laws as bequeathed to the Jewish world by Hazal. They can apply what is there, but they are halakhically disallowed from adding or subtracting as they see fit. Anyone familiar with the works of the Rambam (and various other rishonim) knows that he frequently denies the authority of the Geonim to change the law, make new legal institutions, compose newberakhoth, etc. Instead, he rules according to the Gemara and dismisses their innovations as baseless (as did many other rishonim). However, when the Geonim write in effort to rightly apply the law as recorded in the talmudh, the Rambam carefully considers their words.
Lawyers are those who have gone to law school, studied the legal system and legal precedent, graduated, passed an exam, and are technically qualified to practice law. This is essentially the lot of “rabbis” today; they have attended yeshivah, been tested on certain legal subjects, and have received a certificate of their academic training. However, though technically qualified – and perhaps graduates of the top, most prestigious law schools – many lawyers are brutish and vile, have their own agendas, seek to circumvent the rules of the legal system, appeal to popular public sentiment, and generally lack personal integrity and moral clarity. So, who ultimately decides who is qualified? The people who hire them.
If someone needs the services of a lawyer (and it is the wise thing to do so when considering any complex legal decision or action), he seeks out an honest person concerned with justice. We generally steer clear of “scheister” lawyers unless we also have a crooked personal agenda we would like them to carry out on our behalf. The search for a rabbi is basically the same. There are those who are honest and true, loving their fellow Jews, and seeking to do the will of God, but there are also those who have their own agendas, are hateful, and seek to only bring honor to themselves. The decision of which to follow is a personal choice based on the morality of the individual.
Lawmakers do not exist in our times. All we have is a legal library containing the minutes of meetings, trial transcripts, and the dossiers of various judges that were left after the disbanding of the Sanhedrin. We have no judges today and the “jury” (following the metaphor, there is no such concept in halakhah) is comprised of the Jewish laity. Lawmakers can demand allegiance and obedience, but lawyers cannot. Lawyers must be convincing in their arguments, able to display their competence when handling the law, and have a good reputation. Otherwise, they are not hired. And admittedly, sometimes in a pinch a bad lawyer is better than no lawyer, but overall we seek out good lawyers and ignore the rest.
More on this later. Love and blessings to all of you.