[Avodah] Seeing G'zeiros Everywhere

[Chana Luntz]

RMB writes:

> And both agree that these new prohibitions due to change in pesaq,
> metzi'us, spread of a minhag, and perhaps even charamim (like Rabbeinu
> Gershom), as well as other mechnisms are possible.

Agree with all this.  I just did want to add that there is yet another line
that it is important to include in this discussion, which (to use the Ran's
taxonomy, not that I think there is major disagreement) is the line of power
derived from the king.  The thing is, because in Judaism we do not have a
clear separation of church and state, it is sometimes confusing as to when
powers are being exercised by, to use the English terminology, the Lords
Spiritual (in England the Bishops) or the Lords Temporal (the more general
Lords who traditionally wielded political power via the house of Lords).  At
various points in our history, both sets of powers were wielded by the
Sanhedrin.  Later however the political power was vested in the Rosh Galuta,
who was then the power who appointed the betei din in the various cities.
While the spiritual power, if you like, remained with the leading tamidei
chachamim of the generation.  Often these talmidei chachamim were appointed
to the betei din, but other times they were just heading the academies, and
it is not clear they were necessarily on the Rosh Galuta appointed betei
din.  It also does not seem that this necessarily prevented them from
forming their own betei din, but the powers that went with those of the Rosh
Galuta (ie the shotrim) did not necessarily go with, shotrim of course being
part and parcel of the betei din appointed by the Rosh Galuta.

Of course all of this political power was only wielded at the sufferance of
the ruling authorities of the country (eg the Persian emperor and his
appointees in Bavel) but it does seem that a large amount of political
autonomy was permitted.

This also seems to have been the political model at the time of the Rambam.
The Rambam has lots of statements in various places enjoining the betei din
to appoint officers to police the people to do this that and the other.  (To
give you an example, hilchos yom tov perek 6 halacha 21 "Beit din is
obligated to appoint officers on the festivals that they look around and
seek in the gardens and orchards and on the rivers in order that there
should not gather to eat and drink there men and woman and they will come to
sin").  

But  by the time it came to Europe, there was no Rosh Galuta or central
political authority.  And this is where the Ran's (and others) philosophical
argument comes into play.  Because these rishonim held that in the absence
of a king or king like figure, political authority reverts to the people as
a whole, and that then allows the people to decide upon a political
structure (Vaad or the like) which is thereby empowered to police the people
(meaning that once the populace as a whole had given their consent,
individuals were bound to accept these rulings, and could be punished for
not doing so).  Sometimes this political power was vested in the rabbis or
the chachamim, but often it wasn't, although there were various constraints
(tuvei hair) etc, but fundamentally it was seen as being a bottom up rather
than top down structure. 

I, like RRW I suspect, had my eyes opened to this by Menachem Elon's Mishpat
Ivri, which in my view is absolutely essential reading for anybody and
everybody (and there is even an English edition, so you do not need to read
it in Hebrew, although it is expensive.  The Hebrew edition is, or at least
was, the standard textbook for the Mishpat Ivri portion of the law course at
the various Israeli Universities (and I believe Mishpat Ivri is generally a
compulsory subject for an Israeli law degree) so it can be picked up at a
reasonable price.  The English edition seems to be priced for libraries, and
so when I looked into purchasing it, I was put off by the cost, and went for
the Hebrew one instead).

Once you have read Mishpat Ivri, you start realising that all of these
concepts are all over the Shulchan Aruch (Tur, Beis Yosef etc) in a way that
was not at all apparent, at least to me, when trying to go from the gemora
Rashi/Tosphos/Rambam to the Shulchan Aruch without such background
knowledge.

> I feel that by using the term loosely RRW is obfuscating the entire
> topic originally under discussion!

I agree, but what I wanted to add was that it can be very useful to keep a
kind of church/state distinction in one's head in trying to think through
the topic. Gezeros come from the "church" side - they are part of the powers
that were granted to the talmidei chachamim by the Torah via the line
enumerated in Avos.  And because they are fundamentally about spiritual
welfare, they are binding regardless of where a Jew may be or what powers
the chachamim actually had (ie Roman persecution or no Roman persecution).
So, a Jew who had travelled to England was still bound by a gezera made by
the chachamim in Eretz Yisroel and there would still be an issur for him to,
for example, clap or dance on Shabbat.  There was an interplay with the
people, as there was a mechanism where if the people were unable to cope
with the gezera, the gezera fell away (think oil of nochrim), but that is
it.  It is this kind of power that the Rosh etc held is not longer able to
be invoked.

On the other hand the political power remained wherever the local political
authorities permitted it and to the extent they permitted it.  But such
power was only ever exercisable over the people and to the extent that they
were able to coerce, ie to the extent of the police force, if you like.  If
you moved to eg England, you were out of the province of any such political
exercises of power.  The reason Rabbanu Gershom had to have recourse to
cherem, was because he did not have the powers of policing over the entire
(or any) of the Ashkenazi community.  And the takanot hakahal that were
brought in in places where political power existed covered an enormous range
of subject matters, which could well include and often did include matters
of spiritual welfare and protecting halachic concerns.  But they were like
local pieces of legislation, they only applied to the extent of the
political authority of the institution that passed them, and they lapsed
once that political authority lapsed.

As can be seen from this analysis, the only place we have a clear cut case
of this today is vis a vis the rabbanut, where we have beitei din appointed
by the local political authority (the State of Israel) to whom political
power has genuinely been given.  The rabbanut can lock you up if you don't
listen to them, subpoena etc etc.  That is why their takanot do have the
force of law, within the State of Israel, and the only way to escape them is
to move abroad (and even then, depending on the extent to which the local
law regards the law of the place you came from as having authority, you may
still find yourself extradited if you were there and escaped).

But we also have some quasi forms.  RAF mentioned Elizabeth, New Jersey as a
case - because there you have a situation where the local populace has
accepted upon itself the authority of the Rav there, at least in relation to
certain limited matters (I gather hilchot tephila, eruv and similar).
However, as this particular authority is fundamentally a moral one,
presumably it would be possible for a headstrong shul to break away with
limited sanction if it decided to do so.  And it specifically does not
intrude on any of the political functions of the political state, namely the
government of New Jersey or the United States.

Another example of a quasi form occurs in Israel amongst various Charedi
communities.  It is true that there have been attempts to back this up with
shotrim - modesty patrols and the like, but because the real political power
rests with the State, the authority of these will ultimately rest on the
extent to which the State is prepared to tolerate and/or acknowledge their
validity.  Absent the ability to police in the usual manner, another method
of policing has been found, namely via the school system.  Since this is a
community with a lot of children that all need schooling, controlling the
entry to the desired school system is a form of political power, and it is
being used to bolster the authority of the various quasi takanot.  Those of
us (even within Israel) with no interested in the desired school system
shrug our shoulders whenever bans on the Internet or women getting higher
degrees or whatever it is that is the subject of these modern bans come up.
Again though, it is important to note that this exercise of political power
is only possible because the ultimate political authority, namely the State,
allows it to be.  If the State decided tomorrow that the Charedi school
system should be shut down, and moved to do so, then while they might well
find they had a form of civil war on their hands, I would guess it would be
a whole lot more difficult to try and run clandestine schools, playing cat
and mouse with the authorities, and simultaneously maintain the kinds of
restrictions that are currently in place.  Anybody who was prepared to risk
a) going to jail; and b) having their children taken away from them would no
doubt be accepted to the underground school system, whether or not they had
Internet or a mother with a higher degree or whatever.

But given the tolerance of the State towards certain aspects of self
governance, we are getting in relation to certain communities something that
is starting to approach some of the self governing communities that were
found in Europe.  If one lives in Beitar, for example, one may well have to
toe the line or get run out of town.  On the other hand the moral authority
is far more limited.   While the halacha in its broader sense does allow for
(and in fact regards as necessary) the exercise of political power, and
regards it therefore as legitimate, it can also be criticised as being
against the Torah when used improperly, in the same way as the king could be
criticised despite the existence of the power being legitimate.

It is thus very very different to psak, which relies upon moral authority
and an understanding that this is in fact what the Torah specifies which is
what gives it its force vis a vis the individual.

What is even more interesting to my mind, is the way the Ran and other
Rishonim's understanding about the powers of the people vis a vis political
power and the powers of the people vis a vis minhag seem to overlap and
interlink, although minhag would seem to be unconscious, while it would seem
that the political power aspect can even be conscious.  I am hoping to write
more about at least the power of the people vis a vis political power when I
finally get to write on the Rema on Choshen Mishpat 8:1.

> Gut Voch!
> -Micha

Regards

Chana