Excerpted from Rabbi Shmuel Goldin’s Unlocking the Torah Text – Devarim, co-published by OU Press and Gefen Publishers
A passage critical to the ongoing application of Jewish law is found in Parshat Shoftim:
If a matter of judgment shall baffle you, between blood and blood, between verdict and verdict, between plague and plague, matters of controversy in your gates, you shall rise up and ascend to the place which the Lord your God shall choose.
And you shall come to the Kohanim, the Levi’im and to the judge who will be in those days, and you shall inquire, and they will tell you the word of judgment.
And you shall do according to the word that they will tell you from that place that the Lord will choose, and you shall be careful to do according to all that they will teach you.
According to the teaching that they will teach you and according to the judgment that they will say to you, shall you do; you shall not deviate from the word that they will tell you, right or left.
Commenting on the phrase “you shall not deviate from the word that they will tell you, right or left,” the classical Torah commentator Rashi observes: “Even if they say to you concerning the right that it is left and concerning the left that it is right. How much more so if they say to you that the right is right and that the left is left.”
Rashi’s interpretation of the text is difficult to understand. Would the Torah command us to follow the halachic decisions of the rabbis even when we know those decisions to be wrong? Does rabbinic decision trump Torah law?
Furthermore, an examination of the Sifrei, the Midrashic source quoted by Rashi as the basis of his position, reveals a striking variation from our text of Rashi. The Sifrei states that the rabbis must be obeyed, “even if it appears in your eyes [that the rabbis are telling you that] right is left and that left is right.” By omitting the Sifrei’s critical phrase “if it appears in your eyes,” Rashi seems to expand the Sifrei’s requirement to obey the rabbis from cases when you believe that they are wrong to cases when you are certain that they are wrong.
Finally, compounding the questions on Rashi is a passage in the Talmud Yerushalmi that clearly contradicts the position of this great scholar: “You might think that if the sages tell you that right is left and that left is right, you must [still] heed them. Therefore, the Torah states, ‘you shall not deviate from the word that they will tell you, right or left.’ [This text indicates that you should only obey the rabbis] when they tell you that right is right and that left is left – only if they tell you what you know to be true.”
Does Rashi go beyond the apparent position of the Sifrei and maintain that the rabbis must be heeded even when we are certain that their decision contravenes Torah law? If he does so maintain, do others agree with him? What justification can be cited for their position?
Some commentaries, unwilling to accept the possibility that Rashi would obligate compliance to an erroneous rabbinic decree, insist that even Rashi’s mandate of obedience only extends to cases where it “appears” that the rabbis are mistaken. In situations of certainty, when the rabbi’s decision is clearly flawed, Rashi would agree that their decree should not be obeyed.
Other authorities, including the Siftei Chachamim, explain Rashi’s position by proposing what is, in essence, a doctrine of rabbinic infallibility. In situations where you are convinced that the rabbis are wrong, the Siftei Chachamim declares, “do not ascribe the error to them but to yourself. For the Holy One Blessed Be He continually places of his spirit upon the guardians of His holy [Torah], and He will protect them from all error, that nothing should emerge from their mouths other than the truth.” (See Bamidbar: Beha’alotcha 7a, for discussion concerning the origin and character of rabbinic authority.)
Offering a different rationale, the Abravanel explains that the application of any legal system, even Torah law, will not always yield the truth. The halachic rule, for example, that places the burden of proof in monetary cases upon the claimant fails to address those occasions when a justified petitioner lacks proof of his claims. In order to address such situations, when the letter of the law does not support what they perceive to be true, the rabbis are granted the authority to contravene normative legal principles. To a halachically knowledgeable observer such rabbinic decisions would appear to be fundamentally flawed. The Torah ordains, therefore, that such an observer should not question the rabbis’ decision but should, instead, recognize their halachic right to operate beyond the letter of the law.
Each of the above approaches obligates the observer to recognize, in a case of doubt, that the error rests in his own judgment and not in the judgment of the rabbis.
Some authorities, however, are willing to take Rashi’s apparent acceptance of rabbinic authority even in the case of actual error at face value.
The Ramban serves as a bridge towards this position. On the one hand, this sage opens and closes his remarks on the subject by apparently limiting Rashi’s position to situations when “you think in your heart that the rabbis are mistaken. On the other hand, the Ramban clearly sttes that when faced with a situation of apparent rabbinic error, an individual should not say, “How can I possibly eat this forbidden food?” or “How can I possibly execute this innocent man?” Instead, this individual should recognize that the same God Who commanded him to observe the law also commanded him to act in accordance with rabbinic mandate. God gave man the Torah “as taught by them [the rabbis], even if they are to err.”
Such overarching acceptance of rabbinic authority, the Ramban argues, is essential to the preservation of the uniform character of Jewish law: “The Torah was given to us in written form and it is known that not all opinions will concur on newly arising matters. Disagreements would therefore increase and [were we not to insist upon compliance with rabbinic mandate] the Torah would become many Torahs.”
When faced with a conflict between deeply held perceptions of the truth and the health of the continuing halachic process, the Ramban believes the choice to be obvious. The very survival of the Jewish people depends upon a stable, shared legal tradition. The decisions of the rabbis, even when flawed, must, therefore, be heeded.
Consistent with this explanation, the Ramban, in his commentary to the Rambam’s Sefer Hamitzvot, draws a fascinating distinction between two separate situations of perceived rabbinic error. An individual sage who notes that a rabbinic court has erroneously permitted a forbidden action, the Ramban argues, should continue to follow his own dictates and personally act in a more stringent manner. If the court, however, considers the sage’s arguments and still retains its original leniency, the sage must then follow the majority rabbinic mandate so that uniform communal practice will be preserved.
Channeling the Ramban’s clarion call for consistent halachic practice, the Ba’al Hachinuch is even more emphatic on the issue of actual rabbinic error: “Even if the rabbis err and we perceive their error, we should not disagree with them but, instead, practice according to their faulty decree. It is better to suffer one error and for the entire community to remain loyal to their wise counsel than for each individual to practice according to his own counsel, and for the Torah to be destroyed.”
These overarching arguments for communal halachic consistency underlie a well-known Mishnaic narrative concerning a public dispute between the two towering sages Rabban Gamliel (then nasi of the Sanhedrin) and Rabbi Yehoshua.
When Rabbi Yehoshua disputed Rabban Gamliel’s calculation of the calendar, Rabban Gamliel declared: “I decree that you should appear before me with your staff and your money on the day when, according to your calculation, Yom Kippur falls.” (These acts would be considered a desecration of Yom Kippur, the holiest day of the Jewish year.)
After consulting with his colleagues, Rabbi Yehoshua complied with Rabban Gamliel’s decree and, on the very day that he reckoned to be Yom Kippur, traveled with his staff and his money to appear before Rabban Gamliel in Yavneh. Upon seeing Rabbi Yehoshua before him, Rabban Gamliel rose, kissed Rabbi Yehoshua on the head and exclaimed, “Come in peace, my master and my disciple – my master in wisdom and my disciple because you have accepted my words!”
Halachic tradition thus records Rabbi Yehoshua’s willingness to set aside his own certainty concerning the holiest day of the Jewish year in order to preserve consistent communal practice.
Finally, a more foundational approach to the issue of rabbinic error can be gleaned from the Rambam’s analysis of halachic process, recorded in his introduction to his commentary on the Mishna.
(Note: A longer discussion of these points can be found in our volume on Shmot: Parshat Yitro 5. The information contained there is critical, I believe, to a real understanding of the process of Oral Law. For the purposes of our current study, however, I will summarize some of the salient points.)
Halachic process, the Rambam maintains, is built upon the central tenet that after transmitting the written text together with specific oral laws to Moshe, God “steps back” and hands divine law over to man for interpretation and application. As God retreats from active involvement in decision making, He relinquishes His infallible control over the course of the law. The rabbis, using the rules of study transmitted at Sinai, become charged with analysis of the text and with the application of its laws to ever changing times and circumstances. Limited man, prone to error, is now divinely authorized to determine halacha’s path, and God Himself agrees to accept the conclusions reached by man as law.
While the authorities of other faith traditions, such as Catholicism’s pope, claim to speak in the name of God, halachic authorities speak for themselves. They do not sit and wait for divine inspiration, but instead turn to their books. Armed with the law and with the talent granted to them by God, they attempt to reach divine truth in any given situation. These scholars find reassurance, however, in the knowledge that if they have remained loyal to the process of study in a real attempt to find that truth, God will accept whatever conclusion they reach. In this way, Jewish law continues to address cutting-edge issues in our day, from genetic engineering to space travel to intellectual property, and remains relevant, coherent and consonant with the foundations of the law at Sinai.
In other words, if they are true to their calling, the rabbis can’t be wrong. It’s not that rabbinic authorities are infallible, but that the definition of truth within the halachic process has changed. Truth is no longer defined by objective fact, but rather by loyalty to the process. Such loyalty preserves the halachic process itself, and is therefore more important than any one specific decision. Once a rabbinic decision has been reached through appropriate study of the text and faithful application of the law, by definition, that decision is correct.
In light of the Rambam’s analysis, Rashi’s approach to the issue of rabbinic error becomes fully comprehensible. An individual must follow the dictates of the rabbis, even if he is certain that they are objectively flawed. Within the halachic realm, such retrospective objective analysis is immaterial. If the rabbis have followed the system with loyalty, their decisions are correct, “even if they tell you that left is right and that right is left.”