Rabbinic Goldilocks

(1) To listen to the voice of the court at all times: To listen to the voice of the Great Court and to do all that they command us in the paths of the Torah - regarding the forbidden and the permitted, the impure and the pure, the liable and the exempt and in everything that appears to them to be a reinforcement and enhancement to our religion. And about this is it stated (Deuteronomy 17:10), "And you shall act according to the word that they tell you." And it is repeated adjacently (Deuteronomy 17:12) to strengthen the thing, "According to the instruction that they instruct you and to the judgement that they say to you shall you act." And there is no difference in this, whether the thing that they see is from their own intellects or is something that they extracted by one of the comparisons through which the Torah is expounded, or something that they agreed is from the secrets of the Torah or they see that the thing is like this in any other way - in everything, we are obligated to listen to them. And the proof that this is from the tally of positive commandments is their, may their memory be blessed, saying in Sifrei Devarim 154, "'And according to the judgement that they say to you shall you act' - this is a positive commandment."

(2) From the roots of the commandments is that which we wrote in the Order of Mishpatim on the commandment to incline according to the many (Sefer HaChinukh 78).

(3) From the laws of the commandment is, for example, that which they, may their memory be blessed, expounded (Mishneh Torah, Laws of Rebels 1:2), "'According to the instruction that they instruct you' - these are the decrees and the practices; 'and to the judgement' - these are the things they shall teach from the [Torah] law, through one of the methods that the Torah is expounded; 'from the thing they tell you' - this is the tradition that they received, one man from the mouth of another man." And [also] that which they, may their memory be blessed, said (Sanhedrin 88b) that at the time that the Great Court is in Jerusalem, any disagreement that existed in any court in its place is asked of the Great Court, and we act according to their word. But now that, on account of our iniquities, there is no court there, any disagreement that there be between the sages in our generations - and the ones that disagree be equal in wisdom - if we are not fit to decide among them and we do not know to where the judgement inclines, we should follow the stringent [opinion] concerning a Torah [law], and follow the lenient [opinion] in scribal (rabbinic) law. And that which they said (Mishnah Eduyot 1:5) that a court is not permitted to revoke that which was forbidden by a court that preceded it, even if it appears to its opinion that the thing is not forbidden according to the letter of the law - so long as it appears that the prohibition has spread in Israel - unless it is greater in wisdom and also in numbers (is composed of more judges) than the court that forbade the thing. And about what are these words speaking, that [the later court] can revoke [it] when [the later court] is greater than [the first court] in wisdom and numbers? When the earlier court did not forbid that thing in order to make a fence for the people for [other] prohibitions. And since this is the law, it is incumbent upon each and every court in its generation to examine the matter and investigate much and to pay attention to each [rabbinic] prohibition that it appears the generation is practicing, not to breach and instruct to be lenient about it (to permit it), lest the [court] that was before it forbade it to make a fence for the people, [and] knew that the thing is permissible by the letter of the law. And 'one who breaches a fence, etc.' And the rest of the details of the commandment are at the end of Sanhedrin (the chapter [entitled] HaNehenakin.)

(4) And this commandment is practiced by males and females at the time that the Great Court is in Jerusalem, as all are commanded to do that which they instruct. And also included in this commandment is to listen and do like the commandment of the judge in each and every generation - meaning to say, the great sage that is with us in our times. And [it is] like they, may their memory be blessed, expounded (Rosh Hashanah 25b), "'To the judge that will be in those days' - Yiftach in his generation is like Shmuel in his generation"; meaning, that there is a commandment upon us to listen to the voice of Yiftach in his generation, [just] like to Shmuel in his generation. And one who transgresses this and does not listen to the counsel of the great in the wisdom of the Torah in the generation, 'according to everything that they instruct,' has violated a positive commandment; and his punishment is very great, as this is a strong pillar upon which the Torah rests. The matter is well-known to anyone who has intelligence.

(1) To not stray from their words: That we were prevented from disagreeing with the masters of the tradition, peace be upon them, and from changing their words and to not remove ourselves from the commandments in all matters of the Torah. And about this is it stated (Deuteronomy 17:11), "you shall not stray from the matter that they tell you right or left." And they, may their memory be blessed, said in Sifrei Devarim 154, "'You shall not stray' - this is a negative commandment."

(2) It is from the root of the commandments [that it is] because (see Ramban on Deuteronomy 17:11) the opinions of people are different from one another - never will many intellects agree on things. And the Master of all, blessed be He, knew that if the intention of the verses of the Torah would be given over to the hand of each and every human being - each man, according to his intelligence - every one of them will explain the words of the Torah according to his [own] rationale; and disagreement about the meaning of the commandments would increase in Israel, and the Torah will become like several Torahs - like the matter that I wrote on the commandment of "to incline towards the many" in the Order of Mishpatim (Sefer HaChinukh 78). Hence our God, who is the Master of all the wisdoms, made our Torah - the Torah of truth - perfect with this commandment; that we were commanded to act within [the Torah] according to the true understanding that was received by our early Sages, peace be upon them; and that we should listen to the sages present [now] that received their words, drank the words of their books, and exerted themselves with many exertions - day and night - to understand the depth of their words and the wonders of their opinions. And with this agreement, we will arrive at the true path in the knowledge of the Torah; and without it - if we are seduced after our thoughts and the poverty of our minds - we will not be successful at anything. And by way of the great truth and praise of this commandment, they, may their memory be blessed, said (Sifrei Devarim 154), "'You shall not stray from [it] right or left' - even if they tell say to you about right that it is left, do not stray from their commandments" - meaning to say that even if they err in one of the things, it is not fitting for us to differ with them. Rather, we should do like their mistake. And it is better to suffer one mistake, and everything be given over under their constant good opinion; and not that each and every one go according to his [own] opinion. As with [the latter], there would be destruction of the religion, dissent in the heart of the people and total loss of the nation. And because of these things, the intention of the Torah was given over to the sages of Israel. And from this root, they were also commanded that the small group of the sages is subordinate to the group of the numerous, and as I wrote there about the commandment of "to incline towards the many."

(3) By way of this idea that I have raised for you, my son - through it, will I explain to you a certain homelitical teaching, which is in the end of the chapter [entitled] HaZahav in Bava Metzia 59b, regarding the story of Rabbi Eliezer the Great and the "oven of Achnai," which bewilders all who hear it. They said there, "Rabbi Natan met Eliyahu, etc. He said to him, 'What did the Holy One, Blessed be He, do in that hour?' He said to him, 'He smiled and said, "My sons have vanquished Me..."'" - meaning that the Holy One, blessed be He, was happy that His sons were walking in the way of the Torah and its commandment, to incline after the many. And that which He said, "My sons have vanquished Me," God forbid that there is any victory before Him, blessed be He. Rather, the explanation about this idea is that in the debate of Rabbi Eliezer with his colleagues, the truth was with Rabbi Eliezer; and like the words of the heavenly voice (bat kol) that decided like him. But even though the truth was with him about this - because of his greater analysis over his colleagues - they could not completely fathom his opinion. And [so] they did not want to concede to him even after the heavenly voice; and they brought a proof from the law set in the Torah that commanded us to always go after the many - whether they say the truth or whether they are mistaken. And about this was the response of the Creator, blessed be He, "My sons have vanquished Me." Meaning, since they turned away from the true path - for Rabbi Eliezer had surmised the truth about this - and they came upon him from the power of the Torah commandment that I commanded them to always listen to the majority; if so, one must nonetheless concede to them this time - like their words - that the truth be absent. And behold, it is as if the Master of truth was defeated.

(4) From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 87a), that even though one who transgresses that which the Sages explained about the words of the Torah, transgresses this negative commandment of "you shall not stray"; nonetheless a man does not have the designation of a rebellious judge - known in the Gemara at the end of Sanhedrin 89a, who is liable for the death penalty - until he disagrees with the Great Court (see Mishneh Torah, Laws of Rebels 3:5, 7), and that he is a sage that has reached [the level] of pronouncing decisions [and] is ordained like the [members of the] Sanhedrin, and that he disagrees with them on a matter the volitional transgression of which [brings] excision and the inadvertent violation of which [brings] a sin-offering, and he instructs to do according to his decision or [himself] does the act according to his decision, as it is stated (Deuteronomy 17:12), "who wantonly does" - and not that he only instructs. But if he is a student that has not reached [the level] of pronouncing decisions, and makes a decision; he is exempt, as it is stated (Deuteronomy 17:8), "If a matter is baffling to you" - one who only a baffling thing is beyond him. And so [too,] if he found them outside of the Compartment of Paved Stone (in the Temple) and he rebelled against them, he is exempt, as it is stated, "and you will arise and go up to the place" - teaching that the place causes (is a requirement for) the death penalty.

(5) And the [law is like this], whether he disagrees about something that actually has excision for its volitional transgression (see Mishneh Torah, Laws of Rebels 4:2) or something that brings to something that has excision for its volitional transgression. How is something that has excision for its volitional transgression? For example, that they disagreed about whether a certain woman is [sexually forbidden to a man] or not; if a certain blood renders impure or does not render impure; if a certain woman is [in the category of impurity called] zavah or is not a zavah; if a certain fat is forbidden or not and all that is similar to this. And how is something that brings to something that has excision for its volitional transgression? For example, that they disagreed about the intercalation of the year which [can] bring to the eating of chamets on Pesach; and so [too,] if they disagreed about a law in the monetary laws, such that according to one, the one took money from his fellow legally, and if he married a woman with it, she is married, and one [besides her husband] who has sexual relations with her volitionally is punished with excision, and when inadvertent, liable for a sin-offering, but according to the words of the other, he is exempt, and so [too,] in every matter in which money is to be extracted, such as those obligated by expropriations or evaluations, [the disagreement being about] whether they are liable to give [money] or not liable - that which they took from them [not according to the correct law] is theft, and if he marries a woman with it, she is not married; and so [too,] anything like this. And even if they disagreed about the laws of lashes, he is liable [to be a rebellious elder] as a result of them - as behold, according to the words of the one that [holds] he is not liable for lashes in court, they are obligated to pay the value of his injury, and he would legally take his payments from them.

(6) And Rambam, may his memory be blessed, wrote about the matter of this negative commandment of "you shall not stray" (Mishneh Torah, Laws of Rebels 1:2) that it is one whether they are things that the Sages learned from the received tradition, or things they learned from their intellects through one of the methods through which the Torah is expounded or things done to make a fence for the Torah - and they are the decrees, the ordinances and the practices (see Rashi on Yoma 74a, s.v. ve'aliba) - in each one of these there things, it is a positive commandment to listen to them; and the one who transgresses any one of them transgresses a positive commandment and a negative commandment. And Ramban, may his memory be blessed, greatly took a hold upon him [about this] and said (in the Sefer HaMitzvot in his gloss on Shoresh 1): Behold, the rabbi holds that included in the negative commandment of "you shall not stray" is everything that is from the words of the Rabbis - whether it is a rabbinic commandment such as the reading of the Scroll [of Esther] or the Channukah light, or whether it is from the ordinances such as poultry meat with milk and the secondary sexual prohibitions; whether they are active positive, such as three prayers every day or a hundred blessings and lulav on [all] seven [days] in the borders (outside of the Temple), or they are negative, such as anything that is because of a rabbinic Shabbat prohibition on Shabbat and holidays, and so [too,] the second day of a holiday in the Diaspora and the [fast of the] Ninth of Av; and more generally, anything that the Talmud forbids or commands about. And behold, the rabbi builds a fortified wall around the words of the Sages, but it is 'like a spreading breach that occurs in a lofty wall, whose breaking comes sudden and swift'; as it is a rationale [that is found] wanting in many places in the Talmud. As behold, according to his opinion, one who uses what is connected to the ground on Shabbat, such as one who leans on a tree, or one who moves something from the sun to the shade or says to a gentile [to do work] and he does it or even if he takes a large step on Shabbat, he transgresses [both] a positive commandment and a negative commandment from the Torah, and he is fit to be lashed forty [lashes]. But the rabbi exempts him in the Book of Judges (Mishneh Torah, Laws of The Sanhedrin and the Penalties within their Jurisdiction 18:2), because it is given to the warning of a death penalty by the court - as the death penalty of anyone who rebels against their words is with strangulation. And behold, according to his words, he should be lashed according to the opinion in the Talmud that says that we administer lashes for a negative commandment, given to the warning of a death penalty by the court - as is mentioned in the chapter [entitled], Mi Shehichshikh (Shabbat 154b). And according to that opinion, it is fitting to be very stringent in rabbinic laws, as they are all [from the] Torah. There is no difference at all between them and between the commandments explicit in the Scripture; and there [would] be nothing in the Torah more weighty than a rabbinic Shabbat prohibition which is of their words, except that which has a liability of excision or the death penalty by the court - but not anything that has the obligation of a positive commandment or a negative commandment. As behold, according to his opinion, there is the obligation of a positive commandment and a negative commandment in all of their words - the positive commandment of "And you shall act according to the thing that they tell you," and the negative commandment of "you shall not stray."

(7) And behold it is seen that our Rabbis in all of the Gemara say the opposite of this. As behold, they determine all rabbinic cases leniently, as they always say (Beitzah 3b), "A doubt of Torah [law] is to be [ruled] stringent and a doubt of rabbinic [law] is to be [ruled] lenient. And they were lenient regarding a concern of rabbinically forbidden [products being present in a certain food], to say, "As I say" (that we can assume that it is not present). And they said in the first chapter of Pesachim 9b, "I will say that we say, 'As I say,' in a rabbinic [law]; in a Torah [law], can we say, 'As I say?'" And they relied upon minors who are not fit to testify, to testify on that which is rabbinic, as they said (Pesachim 4b), "The checking for chamets is rabbinic, and the Rabbis relied upon them in rabbinic [laws]." And so [too,] regarding perimeters, a minor is believed to say, "The perimeter of Shabbat is to here," [as they] "held that perimeters are rabbinic, and the Rabbis were lenient in the rabbinic," as it is found in Eruvin 58b and in Ketuvot 28b. And they were also likewise lenient in the rabbinic with doubts, as they, may their memory be blessed, said (Berakhot 21a), "[If] there is a doubt if he prayed or if he did not pray, he does not go back and pray; [if] there is a doubt if he said, 'True and solid' or he did not say it, he goes back" - and they said, "What is the reason? Prayer is rabbinic; 'True and solid' is from the Torah." And not only that, but they were even lenient about things that contradict each other in rabbinic [law] - as they said in the chapter [entitled] Bemeh Madlikin (Shabbat 34a), "[If] two [people] said to him, 'Go out and make an eruv for us'; he made an eruv for one while it was still day, etc.," as it appears there. And it is also seen in the Gemara that we constantly uproot their words on account of a Torah prohibition; as they said in Tractate Shabbat 4a, "If he stuck bread onto an oven [wall], they permitted him to scrape it off before he comes to a prohibition [that is punished with] stoning." And there in Shabbat 128b they said, "Negating a vessel from its preparedness is rabbinic, but the pain of animals is [from] the Torah, and a positive commandment [from] the Torah comes and negates a positive commandment [from] the Rabbis," as it appears there. And this is [something seen] very much in the Talmud - a positive commandment [from] the Torah comes and pushes off a positive commandment [from] the Rabbis. And so [too] with a disagreement among the Sages, they said (Avodah Zarah 7a), "If one [group] was greater in wisdom, follow it; and if not, follow the stringent [one] in that of the Torah, and the lenient in that of the [Rabbis]." And even greater than this, they said (Eruvin 67b), "In that of the [Rabbis,] we first do the act, and then we deliberate." And in the chapter [entitled], Mi Shehichshikh (Shabbat 154b), they said, "What is it that you would say? They were also concerned with a small loss. Hence, it makes us hear" - as it is a novelty with them when they do not push off the words of the [Rabbis], even for a small loss. And they said (Berakhot 19b) that priests can render themselves impure with rabbinic impurity to see kings of the nations of the world; so that if they merit [it], they will differentiate that [which separates] the kings of Israel, etc. And also regarding the punishments of the words of the [Rabbis], they only have excommunication, as they said (Pesachim 52), "We excommunicate for the two days of holiday in the Diaspora." And they said about one who does work on Purim, "Let the master excommunicate him." And in [some] places, they have lashes of rebellion, and that is for one that transgress their words that are similar to [commandments] of the Torah - and those are all the decrees that they decreed from their [own] words - that they lash him until he accepts it upon him or until his soul departs, as is explained in the Tosefta of Sanhedrin. The general rule of the matter is that the words of the [Rabbis] are different in all of their laws from the words of the Torah, that [the one tends] towards leniency, and [the other] towards stringency. But the thing that is clear and clean of any confusion is that this negative commandment of "you shall not stray" is only in that which they, may their memory be blessed, said in explanation of the Torah - such as things that are expounded through a gezerah shavah or a binyan av or the rest of the thirteen methods through which the Torah is expounded; or about the meaning of the language of the verse itself - and so [too] regarding that which they received as a law of Moshe from Sinai. And it is about this that they, may their memory be blessed, said that there is a positive commandment and a negative commandment in the thing. And if in this matter, one fitting to pronounce decisions disagrees with the Great Court about that which the volitional transgression [brings] excision and the inadvertent violation [brings] a sin-offering, he becomes a rebellious elder through them - at a time when we judge capital cases. And this is [the meaning of] that which they, may their memory be blessed, said (Sifrei Devarim 154), "Even if they tell you about the left that it is right"; meaning to say that this is the commandment upon us from the Master of the Torah, may He be blessed - that we believe the greats regarding what they say, and that the one who disagrees not say, "How can I permit it for myself, since I know with certainty that they are mistaken?" As even if it will be such, it is a commandment to listen to them - as I wrote above at the beginning of the commandment - and like the matter that Rabban Gamliel conducted with Rabbi Yehoshua on Yom Kippur that fell out according to [the latter's] calculation, as is mentioned in Rosh Hashanah 25a.

(8) And there is one condition about this law according to that which they, may their memory be blessed, said in Tractate Horayot 2b, that if at the time of the Sanhedrin, there was a wise man who was fitting to pronounce decisions or was part of the Sanhedrin, and the Great Court decided not like his opinion, he is not allowed to permit himself the matter that is forbidden according to his opinion, until he gives and takes (discusses) with them about the thing, and after they all - or their majority - agree to the negation of that opinion, confound his rationale against him and come to the conclusion that he is mistaken; [only] then is he allowed to act for himself according to the permissibility about that which it was his opinion to forbid - and it is also a commandment upon this one to accept their opinion regardless. But with the ordinances and the decrees that the Sages made as a protection of the Torah and as its fence, this negative commandment is only a [recommendation], and there is no law of rebellion about them at all. And the rest of the details of the commandment are elucidated at the end of Sanhedrin ([in the] chapter [entitled] HaNehenakin).

(9) And this commandment is practiced concerning the matter of the rebellious elder at the time of the [Temple]. And concerning the matter to listen to the words of our ancient Sages and to our greats in the wisdom of the Torah and to our judges in our generation, it is practiced in all places and at all times by males and females. And one who transgress this and 'breaches a fence' in one of all of that which our Rabbis taught us in explanation of the Torah - such as through one of the thirteen methods or something forbidden from a law of Moshe from Sinai, and like the matter that we wrote adjacently - has violated this negative commandment, besides violating the positive commandment in it. But we do not administer lashes for it, since it is given to the warning of a death penalty by the court with the law of the rebellious elder, and as we wrote.