Touring the Talmud: Tractate Horayot – Authority, Responsibility & Knowing Better
AUTHORITY, RESPONSIBILITY, & KNOWING BETTER
Much of the subject matter in this tractate deals with issues with which the modern Jew is generally unfamiliar. It discusses the Jewish people not as a religion, but as a nation governed by the law of Torah. Sitting at the centre of this government are the King, the High Priest and the Bet Din HaGadol, the ‘Supreme Court’ — otherwise known as theSanhedrin. The Sanhedrin was the nation’s final authoritative word in the interpretation and application of the Torah’s commandments.
The rulings of the Sanhedrin were binding upon the people by mandate of the Torah. Their definitions of the mitsvot were considered the official interpretations and once their decisions were final, anyone who ruled against them and instructed others to do otherwise, was considered treasonous and if found guilty was executed.
Yet, as powerful and prominent as the Sanhedrin were, they were not infallible. Mistakes could and would be made and this tractate deals with how we address such high-level errors. Horayot, literally ‘conceptions’, deals with the question of mistaken rulings made by the Sanhedrin and the mode of their atonement for ruling incorrectly.
The tractate raises many issues that apply to the extent of judicial authority and fallibility and the extent of the personal responsibility of the people in light of the leadership’s authority.
In this essay we will outline the basic responsibilities of the Sanhedrin, and how it influenced Jewish law. We will also look at what level of responsibility one has as a citizen of Israel who must abide by that law, and ultimately, how the Jewish people deal with scholarship in terms of their leaders and their own lives.
‘I did then what I knew how to do. Now that I know better, I do better.’
— Maya Angelou
COMMANDMENTS REQUIRE DETAILED INTERPRETATIONS
The commandments of the Torah all require some level of interpretation in order to perform them as a nation in a unified manner. The written Torah does not present us with detailed law, but with commandments that present us with legal principles. When it comes to actually performing these commandments, definitions, which are often not included in the written presentation, must be determined in order to properly execute them. For example, the Torah commands us to ‘honour your father and your mother.’ But what does honour entail? Is it based on the preference of the one who is honouring or the one being honoured? To what degree must we honour parents if it encroaches on our personal well-being? And who is called ‘father’ and ‘mother’? Does this apply only to biological parents? Are adopted parents legally included in this commandment?
For a people meant to adhere as a nation to these legal principles and perform them in daily life, there must be a system of adjudication that determines the official definitions of the legal terms. Otherwise, there would be no uniform practice and the law that was meant to bind the people and hold them together as a nation under God, would unravel.
The Lord knew that if the interpretations of Torah were entrusted into the hands of each individual person, each according to his own reasoning, they all would interpret the words of Torah as they understood them, and there would be an abundance of discord in Israel in terms of the definitions of the commandments. The Torah would then splinter into many….for if [there was no central authority], it would destroy the religion, tear apart the heart of the nation, and it would result in the loss of the entire nation. It is for this reason that the interpretation of Torah was entrusted into the hands of the scholars of Israel and that the minority [among the scholars] should follow the opinion of the majority. (Hinukh, commandment 496)
THE SUPREME COURT DETERMINES THE DETAILS
The Torah provides an outline for its own legal system. The authority of legal conception and application lies squarely with the Supreme Court.
When any legal matter is too extraordinary for you, in justice…you are to arise and go to the place that God your Lord chooses, you are to come to the Levitical priests and to the judge that there is in those days;…they are to tell you the word of judgment…You are to take care to observe what they instruct you, by the regulation that they tell you, you are to do; you are not to turn-away from the word that they tell you, right or left.
The Supreme Court in Jerusalem is the centre of the Oral Torah. They are the pillars of legislation and rulings, from whom statutes and judgments issue forth to all Israel. Upon them, the Torah secured itself saying: “You are to take care to observe what they instruct you, by the regulation that they tell you, you are to do…” This is a positive commandment. Whoever believes in Moshe and in his Torah is obligated to make all of his religious acts dependent on this court and to rely upon them.
(Rambam, Hilkhot Mamerim, 1:1)
WHY LEAVE THE DETAILS OUT OF THE TEXT?
There are many reasons that Torah was given in the form of written principles rather than detailed law. One important reason is that while the written law is immovable and the principles will never change, the Oral Torah was meant to be the fluid, responsive, living aspect of the Torah that moved with the developments of time.
The reason the interpretation of Torah was kept oral and not written was so that it would not become fixed for all generations, and so that the hands of the scholars should not be restricted from interpreting the scriptures according to their understanding. It is only in such a way that we can understand the eternal nature of Torah. For with the changes of each generation and their thought, along with the [changes] in their physical and moral lives, changes in their laws, with edicts and amendments are required….
(Rabbi Moshe Shemuel Glaszner, Dor Rebi’i, Introduction)
The Supreme Court of Israel — its master scholars of Torah — were meant to be the source of the conception of new and relevant interpretations of the Torah’s eternal principles. What’s more, the entire covenant was based on our engagement with the Oral Torah!
The Holy One entered into covenant with Yisrael only based on the Oral Torah, as it says, ‘In accordance with these words did I establish a covenant with you and with Yisrael’.
(Shemot 34:27). (Gittin, 60b)
RELEVANCE OF TORAH
They were to engage in hora’ah. The Hebrew word hora’ah literally means conception.As in English, ‘to conceive’ is to create something new; whether it be a life or an idea. Concepts are creative and are only relevant when applied within a working, realistic context. The hora’ah or conception of novel interpretation that is meant to be brought out by the Torah’s scholars and judges cannot be determined by simply looking up prior information in a book.
Only a new ruling is considered hora’ah. But not something that has already been established and known to all… [This includes] all that is written in the books which contain the rulings of the Ge’onim.
(Shulhan Arukh, Yore De’ah, 242:8)
True hora’ah, however, is not to occur without structure and guidelines. There are rules for making rules. An indissoluble connection between written and oral law. All hora’ah must derive from the text of the Written Torah.
Rabbi Yishmael says: The Torah is expounded by thirteen principles:
1. An inference from a lenient law to a strict one, and vice versa.
2. An inference drawn from two identical words in two passages.
3. A general principle derived from one text or two related texts…
Mistakes, of course, happen. And the Sanhedrin at times, may rule incorrectly having misunderstood, misinterpreted, or misjudged the details of law. When this is discovered the people who may have acted on the mistaken ruling of the Sanhedrin are not culpable.
If a court erroneously issued a ruling permitting the Jewish people to violate one of all the mitzvot that are stated in the Torah, and an individual proceeded and performed that transgression unwittingly on the basis of the court’s ruling, then whether the judges performed the transgression and he performed it with them, or whether the judges performed the transgression and he performed it after them, or whether the judges did not perform the transgression and he performed it alone, in all these cases the individual is exempt from bringing an offering. This is due to the fact that he associated his action with the ruling of the court. (Daf 2)
PERSONAL RESPONSIBILITY AND INTELLECTUAL HONESTY
However, there is a limit to just how much one can rely on the misjudgments of the Sanhedrin. When one is a scholar of the law and understands the inner workings of legal conception, and recognises a flaw in the reasoning and deduction of the Sanhedrin, he may not simply carry on acting in accordance with their ruling knowing that they erred in judgment. Here, personal responsibility kicks in.
If the court issued a ruling and one of the judges knew that they erred, despite the fact that the majority ruled against his opinion, or if he was a student and he was qualified to issue halakhic rulings…the judge or the student is liable to bring an offering. (ibid.)
God’s law takes precedence over that of the people. Yet, an important aspect of responsibility and culpability in all of this is one fundamental issue: scholarship.
The Sanhedrin fail because of flaws in their scholarship; the individual is responsible because of the accuracy of his scholarship. Criticisms, questions, and judgments about the Torah and its legal system are issues of scholarship, not one’s moral compass or personal feeling. As with all things, conjecture is superficial, irresponsible and ill-suited to proper analysis.
One must learn about the system and its details before making judgments as to its efficacy, meaning and value. Yet, we do it all the time. Because we tend to favour our own contentment to truth we all are guilty of conjecture many times over. It is not rare that we read a book or attend a lecture (or a series of lectures) on a particular subject and begin pontificating about it as though we have graduated with honours in the discipline. There is a value to, at the very least, being agnostic about that which we lack knowledge, in that it keeps us humble and ensures that we can continue in our journey upon the path of wisdom. We leave that path when we believe we know it all. This is why we call our great scholars Talmidei Hakhamim ‘students of Wise People’ because on the path of true wisdom even the greatest scholars are always learning.
Intellectual honesty requires us to understand before criticising. As Benjamin Disraeli once said, ‘How much easier it is to be critical than to be correct’.
We are not all expected to be scholars. In any given discipline, there have always been, and will always be, laity who, with limited knowledge, will need to trust and rely upon the expertise of others in the fields in which they are lacking.
Still, we are not at liberty to pretend that we do not know when something is wrong when we genuinely have the data and evidence to prove otherwise. There is a strong tradition in Judaism of speaking up and challenging ideas even of earlier or more learned sages when we believe that they are flawed.
And what the master wrote saying not to dispute the great scholar Rabbeinu Yitzchak author of the Tosafot – it would be wrong of me to do such a thing, and who am I in comparison to him? But this I do believe: that everything that doesn’t seem correct in my eyes, I would not accept even if Yehoshua Bin Nun said it. And I’m not going to refrain from expressing my opinion according to my understanding, “And I will speak of your testimonies before kings and I won’t be embarrassed” (Tehillim 119:46), like the analogy the philosophers give of a dwarf standing on the shoulders of a giant. And the later Sages never refrained from refuting the words of the earlier Sages. There are plenty of mishnayot that the Amoraim refuted and declared as not halachically binding. There is no scholar that is free from mistakes.
(Rabbi Yehoshua di Trani ben Mali the Elder.)
Even though there is room to say that the earlier Sages have more expertise than us regarding the explanations of the Rishonim, this only refers to matters that are not based on reasoning. However, matters based on reasoning that we understand, should be judged according to our understanding. Because in every generation it can be said, “We are not reed cutters in the swamp”. I.e. “We aren’t fools.” (Rabbi Yosef Karo, Abkat Rokhel, Ch. 155)
It is forbidden for a student to accept his Rabbi’s words if the student can refute them, because sometimes the truth will be with the student. Similar to how a small tree can light a larger tree on fire.
(Rabbi Hayim of Volozhin, Ruah Haim, Abot 1:4)
A DYSFUNCTIONAL SYSTEM
In contemporary society however, this question is complex. We are, for all intents and purposes, experiencing the situation that the author of the Hinukh feared! We no longer have, nor have we had, a central authority like the Sanhedrin for over two thousand years!
Hora’ah ended with Rab Ashei and Rabina. (Baba Metsia, 86a)
In fact, we pray for their return every day.
Restore our judges as at first, and our counsellors as at the beginning, and remove from us agony and sorrow…Blessed are You, Lord, the King who loves righteousness and justice. (Daily Amida Prayer)
We have no final word, no unified system for our people. But in this unfortunate state personal responsibility is at its height. We are still bound by our Covenant with God and each of us is essentially responsible for his or her own actions. It is incumbent on every individual to uphold that covenant by self-educating and by seeking a faithful and knowledgeable teacher or guide. If for nothing else, so that one’s life does not become an echo chamber.
Yehoshua ben Perachia says, ‘Make for yourself a mentor’. (Abot, 1:6)
He means to say even if he is not fit to be your mentor; still place him upon you as a mentor, so that you can give and take (discuss and argue) with him, and as a result of this the study of wisdom will come to your hand. As the study of a man on his own is good, but his study from someone else will be better established in his hand and it will be more clear – and even if he is like him in wisdom or below him….(Gloss of Rambam to Abot, ibid.)
There is a limit to how much we can hide behind ignorance. Ignorance thrives on self-reinforcement and assurance. We surround ourselves with friends, colleagues and family who think like we do. We made sure that this was not the way our leading scholars worked. The system ensured that they did not lose themselves in their own thought and that they maintained a well-established foothold in reality. If any of the safeguards were missing it was liable to lead to an erroneous ruling.
When does the concept that the court is liable for a sacrifice and those who act upon their ruling are exempt apply? When the following conditions are met:
a)When those who deliver the ruling are the High Court of 71 judges;
b)When the head of the academy participates in the ruling with them;
c) When they are all fit to deliver rulings;
d) When all – or the majority – of them err in the ruling they delivered;
e) That they rule explicitly and tell the people: “You are permitted to do this”; similarly those who heard from the court must have told others: “You are permitted to do this”; and the majority of the people or all of them must act because of their ruling;
f) Those who commit the transgression must act in error because of them, thinking that the court ruled according to law;
g) They must rule to negate part of a commandment, to preserve part of it, but not to displace the entire commandment;
h) When they become aware of their error, they must know the precise matter concerning which they ruled erroneously.
When all of these conditions are met, the court is liable to bring a sacrifice and those who act upon their rulings are exempt. If, however, one of these conditions is not met, the court is exempt from the sacrifice and anyone who unknowingly performed a transgression must bring a fixed sin-offering for his inadvertent transgression. (Rambam, Hilkhot Shegagot, 12:2)
There are times when, as adults, we must make a decision to either educate ourselves or remain unaware. It is a difficult decision fraught with anguish and discomfort. Ignorance is bliss. Or alternately, as King Solomon said:
For as wisdom grows, vexation grows; To increase learning is to increase heartache.(Ecclesiastes, 1:18)
SEEKING SCHOLARSHIP AND MASTERY
And when we do not properly know about something on our own, we must diligently seek someone whom we trust who does. In whatever field our ignorance lies, we look for the faithful expert to help fill the gap of knowledge that we lack. Be it a doctor, lawyer, rabbi, mentor, professor, plumber, electrician, accountant, we must allow ourselves to trust their scholarship, expertise, and mostly their dedication to doing what is right, faithful and true. But we must choose carefully. That choice is our responsibility and often, such people are hard to find.
If we find ourselves in a situation that our knowledge — not our feelings — about a subject seems to go against their advice and actions we must voice it and question their decisions. If they are indeed the experts they will either explain their thinking in light of the questions or admit to their mistake. For they will, in their wisdom and dedication to the discipline, serve the truth rather than themselves.
Scholarship has thus always been at the centre of the Jewish world. Learning is in the very fabric of our lives. We have always had a culture that encourages our people to study, question, think and learn. There is in fact a strong concept of bitul – wasting time if one is not actively learning.
There is no other nation or religion on earth that so deeply and completely embraces and promotes learning. For this reason, when it comes to discovering a leading teacher we seek one who has breadth of knowledge over depth of knowledge. While it is valuable and at times essential to penetrate an issue to its depths it is more often valuable to have expansive knowledge about a great many things; especially when leading a community of people. It is with this ideal that Tractate Horayot ends.
Rabbi Yoḥanan said: Rabban Shimon ben Gamliel and the Rabbis disagreed with regard to this matter. One said: a ‘Sinai’ [scholar], (i.e., one who is extremely knowledgeable), is preferable; and one said: [A scholar] who uproots mountains, (i.e., one who is extremely incisive), is preferable. Rav Yosef was ‘Sinai’; Rabba was one who ‘uproots mountains’. They sent a message from Babylonia to Eretz Yisrael: Which takes precedence? They sent in response: Sinai is preferable, as the Master said: Everyone requires the owner of the wheat, i.e., one who has the means to provide ‘nourishment’ (in this case wisdom) to all.(Daf 14)
We are, and have always been, a people who cherish wisdom. Our children have been literate and considering nuanced thought throughout all of the world’s dark ages. For generations, we have been taught that when it comes to learning all are welcome to participate regardless of age or rank, as long as their desire and love of truth rises above their own personal vulnerabilities.
As the new State of Israel turns seventy this year and reaches the age of a full human life, we see in the collective nation a people who have made extraordinary strides in innovation and thought in so many areas of life. Israel is alive and thriving. One area, however, that still requires rehabilitation is that of our Torah and the covenant we hold with God in terms of our mitsvot. The nation as a whole walks uneasily with this. It is an old and complicated issue that we find difficult to grasp as a unified, sovereign people. Will we one day be able to focus as a nation together on these things? Will we see a modern-day Sanhedrin emerge? Will our children see it? Granted, it is hard to imagine. But, given the astonishing events of Jewish History, we can probably all agree, crazier things have happened.
Rabbi Joseph Dweck
 Deuteronomy, 17:8.
 ibid. 17:12.
 Exodus, 20:12; Deut., 5:16.
 See Berakhot, 5a; Abot, 3:7.