Becoming Mekori – The Lawyer and the Lawmaker

In a previous post, I mentioned that in our time, as regards halakhic authority, there is only the power of the lawyer and not that of the lawmaker.

A “lawmaker” (i.e. one of the rabbis of old who sat on the Beit Din HaGadol) is one who has the legislative capability to make new laws or alter existing ones, whereas the “lawyer” (i.e. today’s rabbi, trained in the practical aspects of Jewish law) has no such legal capacity. Instead, a lawyer under any legal system is only qualified to apply the law as it stand and to work within it, at best making arguments as to why his clients should his legal position.

The Rambam

The Rambam, in his introduction to the Mishneh Torah, describes the development and institution of the halakhah from Mosheh Rabbenu (alav ha-shalom) through the Biblical period, the era of the Mishnah and Talmud, the changes that took place in the post-Talmudic, and up until his own time. The demarcation made by the Rambam between the rabbinic authorities of Talmudic times and those subsequent to them is clear and unambiguous – and is of absolutely fundamental importance.

After the court of Ravina and Rav Ashi – described by the Gemara (b.Bava Metzia 86a) as being “sof hora’ah – the end of halakhic instruction” – what we know of today as “talmud” was officially closed. The term “talmud,” as it is used by the Rambam, is not usually an exclusive term for the Babylonian Talmud. In the Mishneh Torah it is used many times as a collective term for all of the literature produced by Hazal, which includes both the Bavli and Yerushalmi, as well as the Mishnah, Tosefta, Sifra, Sifrei, and several others. So, in the view of the Rambam, the “talmud” (i.e. the official body of authoritative halakhic literature authored by Hazal) has now become the definitive standard of religious law, intended for use by subsequent generations that do not have the benefit of a Sanhedrin.

The Rambam explains the statement from Bava Metzia regarding Ravina and Rav Ashi as follows:

Ravina va-Rav Ashi hem sof hakhmei ha-talmud – Ravina and Rav Ashi are the end of the Sages of the talmud” (Mishneh Torah, Introduction i:23 – “talmud” here being used in the general sense)

He then goes on to say:

“…And the purpose of the talmudin 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 beit din from the days of Rabbenu HaKadosh [i.e. Rabbi Yehudhah HaNassi] until the composition of the talmud. And from the two talmuds, and from the Tosefta, and from the Sifra and Sifrei, and from the baraita collections – 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 in absence of a Sanhedrin is no longer determined by courts, etc., but is determined from the works of Hazal taken in aggregate, as applied by either the individual rabbi or a local court of three judges that is duly appointed by the people. And this is not just the view of the Rambam, others also affirm this. For instance, Rav Sa`adiah 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 beit din that arose after the talmud in every city that issued a decree (gezerah), or issued a, ordinance (takkanah), or instituted a custom (minhag) 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 beit din is comprised of a few individuals and the beit din ha-gadol [i.e. the Sanhedrin] comprised of seventy was disbanded several years before the composition of the talmud. Therefore, the men of one city cannot force those of another city to abide by its local custom, and they cannot say to another beit din that they should make the same decree as another beit 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 beit din that arose after him that such a ruling was not the proper ruling (derekh ha-mishpat) as it is written in the talmud – 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 “talmud” (the works of Hazal) is the supreme source of halakhah since the disbanding of the Sanhedrin. The only arguments that can be acceptable are those made in effort to correctly interpret the talmud – all others are de facto invalid. The Rambam makes this explicit statement in his Pirush HaMishnayot: “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.” (Introduction i:46, Qafih Edition).
  • The principle of halakhah ke-batra’ei does not apply to anyone who comes after the talmud was closed – including the Geonim.
  • The standard for all subsequent legal positions is their cogency when compared to the text of the talmud – period.

So, the position of all rabbinic persons today is solely that of an interpreter of existing laws as they were 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 either change the law, make new legal institutions, or compose new berakhot. Instead, he rules according to the Gemara and dismisses their innovations as being essentially baseless (as did many other Rishonim). However, when the Geonim do write in effort to rightly apply the law as recorded in the talmud, the Rambam carefully considers their words.

Filling Out The Analogy

Lawyers are those who have gone to law school, studied the system of legal precedent, have graduated, passed an exam, and are technically qualified to practice law. This is essentially the position 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 being, perhaps, the graduates of the 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 sentiment, and generally lack personal integrity and moral clarity. So, who ultimately decides which lawyers 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 and fidelity to the law. People generally steer clear of “scheister” lawyers unless they too have a crooked personal agenda that they would like carried out on their behalf. The search for a rabbi is basically the same. There are those who are honest and true, love their fellow Jews, seek to do the will of God, and are faithful to the directives of Hazal, 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 moral fiber of the individual.

Lawmakers do not exist in our times. All that is available to religious Jews 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 are in a position to demand allegiance and obedience, but lawyers are not. Lawyers must be convincing in their arguments, able to display their competence when handling the law, and have a good reputation. Otherwise, they are simply 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.

2 thoughts on “Becoming Mekori – The Lawyer and the Lawmaker

    • לק”י

      Shalom, Chaim.

      Thank you very much for the heads up. I have written to the owner of the site and have asked him to not re-post my articles, as it violates my copyrights and the Creative Commons license on Forthodoxy.org. Instead, I told him that he should replace the posts with links to the actual articles on this site.

      Hopefully “Ha-Yehudi” will do the polite and halakhically correct thing and comply with my requests.

      Re-posting sites are annoying. Like people taking credit for other peoples’ hard work.

      Thanks again,

      Kol tuv,

      YB

      Like

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