World of the Sages: The legal power of the people

Where is the locus of power in the Jewish legal system? Who ultimately decides questions of Halacha?

Where is the locus of power in the Jewish legal system? Who ultimately decides questions of Halacha? Instinctively, we might suggest that the rabbinic authorities have sole jurisdiction in the halachic process. They decide questions of law and have the mandate to legislate new laws or abrogate old ones. Indeed, halachic authorities are invested with much power. Nevertheless, the halachic system recognizes another institution that plays a significant role in the development of Halacha: the people. A person who experiences a seminal discharge - known in talmudic literature as a ba'al keri - is prohibited by biblical law from partaking of sanctified products, such as teruma and kodashim (see Leviticus 15:16). During the Second Temple period, Ezra the Scribe expanded the restrictions placed on a ba'al keri. He decreed that a ba'al keri may not recite words of Torah before immersion in a mikve (B. Bava Kama 82a-b). In this light, we can understand the Mishna that rules that a ba'al keri should contemplate the words of Shema rather than recite the prayer aloud (M. Berachot 3:4). Indeed, almost all sages cited in the Mishna and parallel sources accepted the contemporary applicability of Ezra's decree. All, that is, except for one sage - Rabbi Yehuda ben Beteira (B. Berachot 22a). Rabbi Yehuda ben Beteira would teach that words of Torah cannot contract ritual impurity, and hence a ba'al keri need not immerse in a mikve before studying Torah. To illustrate ben Beteira's stance, the Talmud relates an episode with the sage and one of his students. The disciple was already a ba'al keri when asked to recite teachings before his master. Nervously, he began to stammer. Ben Beteira calmed his student: "My son, open your mouth and let your words lucidly shine forth, for the words of Torah do not contract ritual impurity." The sage continued citing scriptural support for this notion: "It is written - Behold, My words are like fire, says God (Jeremiah 23:29) - just as fire is not susceptible to ritual impurity thus Torah, the word of God, is not prone to ritual impurity." In permitting a ba'al keri to recite words of Torah, it appears that ben Beteira disregarded the ancient decree of Ezra requiring immersion in a mikve. This scenario is legally problematic, for generally speaking rabbinic decrees can only be rescinded by a later court of greater size and wisdom than the original legislating body (M. Eiduyot 1:5). It would be presumptuous for ben Beteira to assume greater wisdom than the famous Ezra the Scribe. How, then, could the sage discount Ezra's ban? This very question bothered one of the medieval commentators who offered three solutions (Tosafot, 12th-14th centuries, France-Germany). The first approach suggests that Rabbi Yehuda ben Beteira denied the historicity of Ezra's decree. Ezra never issued a ban on Torah study by a ba'al keri and hence Rabbi Yehuda ben Beteira was not bound by any earlier legislation. This approach is a curious attempt given that all other talmudic sages accept Ezra's decree as historical fact. The second proposal acknowledges the historical authenticity of Ezra's decree, but suggests that the decree was enacted with a release clause whereby any later generation could rescind the earlier decree, even if the later authority did not have the required pedigree. While there is no evidence of such a stipulation, such a mechanism was known to the sages and its application is suggested elsewhere in the Talmud in an entirely different context (B. Moed Katan 3b). A third and most fascinating approach also accepts the historicity of Ezra's ban, but sees the license for ben Beteira's stance in subsequent events. While Ezra enacted the prohibition, the people rejected the ban, effectively nullifying Ezra's legislation and ensuring that it never achieved binding legal status. Though we have no historical evidence of such a mass rejection of Ezra's decree, the legal power invested in the people is reported in another instance. The Mishna lists oil produced by gentiles as a forbidden product (M. Avoda Zara 2:6) and the ensuing talmudic discussion explores the history of the prohibition (B. Avoda Zara 35b-36b). According to one opinion, Daniel instituted the ban and centuries later it was repealed by the court of Rabbi Yehuda the Prince. Here, too, the Talmud asks how the later court could audaciously rescind the decree of the earlier authority. Our sages tell us that indeed we have here an ancient decree, yet this ban never took hold among the people. Thus the later court merely investigated the history of the prohibition. Once they realized that the ban on gentile oil never enjoyed widespread acceptance, they declared Daniel's decree null and void. At times we feel that halachic clout rests solely in the hands of rabbinic authorities, yet the Jewish legal system actually recognizes the people's mandate to act as a house of parliament that has the right to reject rabbinic legislation. The license given to the people is not only to reject rabbinically initiated legislation. Though a full discussion of the legal mechanism of minhag (custom) is beyond our scope, we can broadly say that minhag is the mandate granted to the people to initiate legislation. The legal power of the people is a unique feature of the halachic system. Other legal systems grant the people the right to remove legislators at the end of their term of office. As long as they are in office, lawmakers may be subject to public pressure, but at the end of the day they can choose to ignore dissent, snub protests and legislate as they please. Eventually they may be called to task at the voting booths, but until such time they have relative legislative freedom. Not so in the Jewish legal system, where the people constantly vet the legislation of the rabbinate. While the Jewish legal system does not grant this inimitable prerogative to any one individual or identifiable group, it is a salient right that reflects the communal ownership over the hoary Jewish legal process. The writer is on the faculty of the Pardes Institute of Jewish Studies and is a rabbi in Tzur Hadassah.