Rav Shlomo Fisher - The halachic significance of public acceptance by the masses

Addded additonal material 9/16/13. The following is a very fascinating and provocative essay by Rav Shomo Fisher explaining the authority of something accepted by the masses - even just as behavior without explicit acceptance. [It is 8 pages long  - this is just the first page.] It is  in his Beis Yishai (chapter 15). In brief he is explaining that halachic authority and creativity can arise from the actions of the masses and not just from the Torah or rabbis. The consequences of this thesis are very significant

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The Torah has a legal characteristic which is based on the concept of bris (covenant). In fact the Rishonim were very interested 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 and it is known that law is based on bris? In other words bris is based on the 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) means that all the members of the kingdom willing accept the decrees of the king and his laws. In other words the individual's forcing himself to accept is the foundation of the acceptance. (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] 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 there words since there is absolutely no verse, halacha or sevora (common sense)? Because even if you say it is a servora 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 sevora." That clearly shows that there is no difference in whether a halacha is generated from a verse or servora.

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 sevora... 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 signficance 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 Havodah....

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 ad in Kesubim 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 finsihing of the Talmud...
[to be continued]