THE ROLE OF PUBLIC ACCEPTANCE IN RABBINIC ORDINANCES
Rabbi Yitzchok Etshalom
Kriat Shema 4:8
8. All those who are *tamei* (ritually impure) are obligated to
read K'riat Sh'ma and to say the B'rakhot beforehand and
afterwards [even] while they are in their state of *tum'ah*. Even
though they could ascend out of their state of tum'ah that same
day - such as those who touch a *sheretz* (rodent) or a *niddah*
or a *zavah* (types of ritual impurity dealing with genital
emissions) or her bed etc.
Ezra and his court (circa 450 BCE) ordained that only a *ba'al
keri* (one who has had a seminal emission) should not read words
of Torah - and they distinguished him from all other people who
are *tamei* [in this regard] - until he performs ritual ablution.
This decree, however, never "caught on" throughout Israel [the
Jewish people] and a majority of the community was not able to
maintain it, therefore it became nullified.
The Jewish people are accustomed to reading Torah and reading
K'riat Sh'ma even though they are *ba'alei keri'in* because the
words of Torah are not susceptible to *tum'ah*; rather they
remain forever pure, as it says: "Behold, My words are like fire,
oracle of YHVH..." (Yirmiyah [Jeremiah] 23:29) - just as fire is
not susceptible to tum'ah, similarly the words of Torah are not
susceptible to tum'ah.
*Ein gozrin g'zerah 'al hatzibbur ela im kein rov tzibbur
y'kholin la'amod bah* - "We do not enact a decree upon the
community unless a majority of the community is able to live up
to it". This phrase appears in the Bavli in three places:
(a) Bava Batra 60b - in explaining why the attempt to ban all
meat and wine in response to the destruction of the Mikdash was
(b) Avodah Zara 36a - to explain why the prohibition of
non-Jewish oil was annulled;
(c) Bava Kamma 79b - to explain why the Rabbis, who prohibited
raising small animals (e.g. sheep) in Eretz Yisra'el, did not
extend this prohibition to include large animals (e.g. cattle).
In both Bava Batra and Avodah Zarah, a Biblical source for this
notion is presented:
*baM'era atem Ne'arim, v'oti atem kov'im, hagoy kulo* - (lit.
"you are suffering under a curse, yet you go on defrauding me,
the whole nation of you" (Malakhi 3:9)). Rashi (Avodah Zarah 36b)
explains that if the *goy kulo* - entire nation - accepts upon
themselves a stringent rule (such as bringing the tithes to the
storehouse - see Malakhi 3:10), then the decree is valid; but, if
not, it has no force. (The upshot of the verse, in this light, is
that the people accepted *b'arur* - with the force of a curse -
this behavior, yet they didn't live up to it. Since they all
accepted this rule, they are held responsible for ignoring it.)
As the Gemara in Horayot (3b) points out - commenting on the same
verse - *rubo k'kulo* - a majority of the nation defines the
whole nation. Therefore, if a majority of the nation agrees to a
specific stringency within the law, it becomes law for everyone -
even those who protested the *gezerah* from its inception.
(a) WHOSE INITIATIVE?
However, in looking carefully at the three sources cited above,
we see two very different circumstances under which the role of
*rov tzibbur* is introduced:
In Bava Kamma and Avodah Zarah, the discussion revolves around
Beit-Din initiated rules, which were limited (Bava Kamma) or
annulled (Avodah Zarah) because of the relative feasibility of
the community's upholding them.
On the other hand, in Bava Batra, the *p'rushim* who declared
that they wanted to desist from wine and meat were not operating
as a Beit-Din, rather as individuals who wished to intensify
their mourning for Yerushalayim and the Beit haMikdash. Why does
the principle of *Ein gozrin g'zerah 'al hatzibbur ela im kein
rov tzibbur...* apply here?
(b) "POPULARITY" AND "FEASIBILITY"
In the sugya in Avodah Zarah (alone), a second issue is raised -
which is possibly part of the *ein gozrin* consideration:
The Mishnah in Shabbat (1:4) relates that at one time, Beit
Shammai and Beit Hillel had a particularly serious and
tempestuous session in the court, in which the school of Shammai
outnumbered the Hillelites and they were successful in passing a
lot of legislation - 18 gezerot. The Gemara in Avodah Zarah (and
Shabbat - 17b) associates some of these decrees with "measures of
social distancing" - e.g. not to drink wine made by a non-Jew
etc. One of the decrees was not to use non-Jewish oil (see the
Gemara in Avodah Zarah for two possible rationales for this
decree). The Mishna (Avodah Zarah 2:6) records that R. Yehudah
haNassi and his court annulled this decree. The Gemara is
bothered by this annulment, based on two considerations:
(a) No court may annul the rulings of another court unless it is
greater in wisdom and in number (=members) than the first. (M.
Eduyot 1:5). Since the gezerah to forbid such oil was made by a
greater court (the schools of Shammai and Hillel) - or, possibly,
dates back to Daniel (see A.Z 36a) - how could R. Yehuda haNassi
(b) Regarding these 18 gezerot, R. Yohanan declares that "even if
Eliyahu (the prophet) and his court would come (and try to annul
one of them), we would pay no heed. This is evidently based on
the tremendous vigor with which these gezerot were passed. The
Bavli records one version of the passions evoked in the court on
that day - but the Yerushalmi (Shabbat 1:4) has a much stronger
version. In any case, these 18 gezerot are irreversible, even by
a greater court - so how did R. Yehuda haNassi annul the "oil"
According to the Bavli, there were two steps (it seems) involved.
First of all, the court checked with the population and found
that the oil decree had not caught on - most people were still
using non-Jewish oil. The court then utilized the rationale of
*ein gozrin...*, which they credited to R. Eliezer b. R. Tzadok
and R. Shim'on b. Gamliel.
There are two ways to read the association of these two issues:
(1) The fact that the gezera did not catch on means that there
will not be a great social upheaval or difficulty in rescinding
the order. We can then go back to the original gezerah and posit
that it was made in error, since it was not maintainable by most
people. Therefore, annuling it will not be procedurally
incorrect (since it was made "erroneously") nor will it cause
much confusion (since it didn't catch on.)
(2) The fact that it didn't catch on is the proof positive that
it was a gezerah that was not maintainable by most people. In
other words, there aren't two separate issues here, rather one
sheds light on the other.
The Yerushalmi (Shabbat 1:4) seems to support the second approach
- "R. Yohanan said in the name of R. Eliezer b. R. Tzadok: I have
a tradition that any gezerah which the court decrees for the
community and a majority of the community does not accept - it is
not a gezerah." In other words, (applying this to the oil
decree), since the oil decree never caught on, it never had the
force of gezerah and was never valid. Therefore, even a lesser
court could annul it. However, this is a bit odd - why would we
need a court to annul it, if it never was in force?
One possible answer goes to the core of why a Beit-Din may not
annul the rulings of another Beit-Din unless it is greater in
wisdom and numbers. It may be an issue of "correctness" - we
want to make sure that they know what they are doing. It may
also/alternatively be an issue of "k'vod Beit-Din" - the honor
and respect for the court. This respect is obviously necessary
to maintain in any society which is law-driven and court-guided.
Therefore, we might posit that a court may not overrule an
earlier, greater court for both reasons - but, if only the
"kavod" issue remains, a lesser court may overturn the ruling;
but it must do so procedurally (not just "announcing" that the
earlier ruling was never valid), in order to maintain the
integrity of the earlier court in particular and the court system
Tosafot (Gittin 36b s.v. ela) raise the possibility that there
are two independent issues here: That popularity (how much it
caught on) and feasibility (how likely is it that most people
could live with this gezerah) are independent pieces. If one
exists, there is a need for the court to overturn the ruling -
and it must be a greater court. Only in case both popularity and
feasibility have failed do we allow a lesser court to overturn
Rambam, in Hilkhot Mamrim (2:5-7), states:
"5. If the Beit-Din (Rabbinic Court) saw fit to enact a *gezerah*
(decree) or a *takkanah* (ordinance) or to establish a *minhag*
(custom), they must first consider the matter and first ascertain
if a majority of the community can endure these or if they cannot
endure them. We never enact a decree on the community unless a
majority of the community can endure it. [So far, this fits the
general gist of the statement as recorded in the Bavli -
"6. If the Beit-Din enacted a gezerah and they imagined that most
of the community could maintain it - and subsequent to their
ruling, the people were unsure about it and it didn't spread
through most of Yisra'el, it is null and void and they may not
force the people to follow it.
"7. If they enacted [a decree] and they thought that it had
spread throughout all of Yisra'el and the matter stood that way
for many years and then, after a long time, another court checked
throughout Yisra'el and saw that this decree had not spread
throughout all of Yisra'el, it may annul [the decree], even if it
was a lesser court than the first in wisdom and numbers."
There are three possible explanations for the difference between
a non-popular gezerah which was discovered on the spot and one
discovered years later:
(1) As long as it is the same court which discovers the
"non-existence" of its gezerah, they may declare it null and void
without resorting to further (reversing) legislation. On the
other hand, a later court may not do so without legislation.
This is a purely procedural issue.
(2) A slight variation on (1): Legal maneuvers may have been
initatied based on this ruling in the intervening years, either
by the original court or by a later one. These maneuvers may
involve prosecution, change of personal status etc. If the later
court would just declare the original gezerah to be null and
void, it would create a juridical headache of possibly epic
proportions; hence, new legislation which changes the rule from
here on in.
(3) The honor for the court is something which grows with time;
the longer a law has been "on the books", the greater the danger
of disrespect being shown by just "erasing" it rather than
legislating against it.
Summing up the Rambam, "popularity" is not the same as
"feasibility" - but the two interact. First of all, the court
must see if the gezerah is "doable"; if they think so, but it
doesn't catch on, that either indicates that they were wrong - or
that, nevertheless, they may not make such a gezerah. It seems
that the popularity issue has a central place in gezerot - which
we need to explore.
THE PURPOSE OF GEZEROT
The legislative job of the court is to further the needs of Am
Yisra'el and to promote the laws and spirit of the Torah. As an
example, when Nehemiah saw that people were involving themselves
in business-type activities on Shabbat - which were technically
legal but which totally flew in the face of what Shabbat is
supposed to accomplish - he made a gezerah against handling
certain types of tools. (See Nehemiah 13:15-16, Shabbat 123b).
Some gezerot, such as the 18 gezerot of Beit Shammai, were
enacted to further social goals within the Jewish people.
One of the central features of Halakhah is its unifying nature -
all Jews following Halakhah share a relatively common perspective
on major life-issues and values and, perhaps even more
significantly, share a common practice. Part of the goal of the
court is to bring the people closer to Torah - and to each other.
This was the goal of those perushim who wanted to avoid meat and
wine in response to the destruction. They were not just
suggesting personal stringencies; they were attempting to bring
Am Yisra'el along for the ride, to have everyone (or, at least a
majority), join in this behavior. This is why the principle of
*ein gozrin...* applies to that case also; since most people
could not live up to this standard, the result will be one of
divisiveness and of pushing people further from Torah. All of
those folks who are sincere in their committment but are not
ready to give up meat and wine will feel like second-class Jews,
in spite of their total commitment to Halakhah.
The principle of *ein gozrin...* is not merely one of judicial
prudence; it cuts to the heart of the mission of the court - to
bring the Jewish people together, under the protective wings of
the Shekhinah (Divine Presence). Bringing some of the people is
not half an achievement - in this case it is a step backwards.
now, to the questions:
Q1: Why does Rambam have to tell us that those who are tamei
are obligated in this Mitzvah - and to tell us that they do it in
the complete fashion (i.e. w/B'rakhot)?
A: The Mishnah in Berakhot (3:4) cites a dispute between Rabanan
and R. Yehudah, as to whether a ba'al keri reads K'riat Sh'ma and
makes Berakhot. There is an implied distinction between K'riat
Sh'ma (purely words of Torah) and Berakhot (addressing God).
Rambam needs to clarify that not only are words of Torah beyond
the reach of tum'ah, but that this also holds true for Berakhot.
Q2: Why did Ezra and his court make this ruling specifically
aimed at a ba'al keri?
A: Rambam (MT Tefillah 4:4), citing the Gemara (Berakhot 22a),
gives the reason for Ezra's decree as one of minimizing sexual
intercourse - "that scholars should not be constantly with their
wives like roosters". By restricting the reading of K'riat Sh'ma
(and, later, Tefillah) for anyone who has had sex - until he
goes to the Mikveh - such intercourse would be limited. See,
additionally, MT De'ot 5:4.
Q3: Why is the community's level of acceptance - coupled with
the "contagiousness" of the decree - the deciding factor
regarding the (im)permanence of that decree?
A: See the shiur.
Q4: Why did Rambam choose to end Hilkhot K'riat Sh'ma with this
A: Although Rambam ends each Sefer (volume) of Mishneh Torah with
*divrei aggadah* (homiletical teachings), that is not necessarily
true for the end of each section of Halakhot, as in our case.
However, I believe that there are several interesting points
which are implicit in this Halakhah and which shed light on
matters relating to K'riat Sh'ma in general:
(a) K'riat Sh'ma - and all that it implies (Kabbalat Ol Malkhut
Shamayim, Talmud Torah, declarating God's Unity) are not beyond
the pale for anyone - even someone who is temporarily in a state
of tum'ah. Even though, as we discussed several times (see the
Introductory shiur & 3:01), K'riat Sh'ma may be assumed under the
rubric of "Avodah" (worship - an extension of Mikdash [Temple]
service), nevertheless, this level of Avodah, unlike that in the
Mikdash, is not exclusive and allows for tum'ah.
(b) The power of community (see the shiur). This has a
particular significant place in Talmud Torah, where the
individual scholar (as highlighted by Rabbah b. Nahmani - Bava
Metzia 86a), the community of scholars (Bava Metzia 59b - *tanuro
shel 'Akhnai*) and all of 'Am Yisra'el (see Pesahim 66a - *hanach
lahem l'Yisra'el; im ein Nevi'im hein, b'nei Nevi'im hein* - "if
the Jewish people aren't prophets themselves, surely they are the
children of prophets") play significant roles. Here, it is
highlighted by the role of the community in the ultimate
acceptance/rejection of Rabbinic decrees.
(c) The absolute purity of Talmud Torah (which, of course,
includes K'riat Sh'ma) - which is compared to fire. The fire
metaphor goes far beyond the "untouchability" of words of Torah,
relative to tum'ah; it implies a level of purgation, of cleansing
and of the touch of the ethereal upon that which is corporeal.
Much to think about as we study and become sanctified through
Rambam, Copyright (c) 1999 Project