AUTHORITY, RABBINICAL , the authority of the halakhic scholars in maintaining the creativeness and development of Jewish law, by means of its legal sources.
Development of the Law
An important tenet of Judaism and a guiding principle of the halakhists is that, together with the Written Law (Torah she-bi-khetav), Moses received also the *Oral Law (Torahshe-be-al peh) (Meg. 19b), the latter, within its wider meaning, embracing all the halakhah not explicit in the Written Law (Sifra Beḥukotai 8:12). However, the talmudic sages themselves clearly distinguished between that part of the Oral Law based on a tradition handed down from generation to generation, from the time of Moses who received it from God Himself (Avot 1:1; arn1 1:1; Maim., Yad, Mamrim 1:1–2), and the other parts of the Oral Law, created and developed by the halakhic scholars. The sages of the Midrash in answer to the question whether Moses learned the whole Torah in 40 days while he was on Mt. Sinai, answered that "God taught Moses the principles" (Ex. R. 41:6). These words are interpreted by Joseph *Albo to mean that "the law of God cannot be (given) in complete form so as to be adequate for all times… and therefore at Sinai Moses was given general principles… by means of which the sages in every generation may formulate the details as they present themselves" (Ikkarim, 3:23). A study of the statements of the halakhic scholars reveals that just as they emphasized in unequivocal terms the supra-human and divine nature of the source of halakhah, so too – and with the same degree of emphasis – they insisted upon the human element, the exclusive authority of the halakhic scholars to continue to develop and shape the halakhah. This dual image of halakhah finds expression in two basic and apparently contradictory dicta: on the one hand, the basic tenet that "the Torah is from Heaven" (Torah min ha-Shamayim) – on the other, the principle that "the Torah is not in Heaven" (Torah lo ba-Shamayim; bm 59b based on Deut. 30:12; Maim., Yad, Yesodei ha-Torah 9:4). In other words, the source of the halakhah is divine, but its place, its life, development, and formation, is with mankind, in the life of society. The halakhic scholars saw no inconsistency in these two principles, believing as they did that in their exegesis, enactments, innovations, and creativeness, they were merely giving practical expression to a further unfolding of the revelation at Sinai, destined from the beginning for the needs of each particular generation (Ex. R. 28:6; Tanḥ. Yitro 11).
Authority of the Halakhic Scholars
Even in the written law problems are encountered to which no solutions are given within the framework of the existing law – such as the case of the blasphemer (Lev. 24:10–16), the gatherer of sticks on the Sabbath (Num. 15:32–36), and the inheritance of the daughters of Zelophehad (Num. 27:1–11; 36:1–10) – but are explicitly made known by God to Moses. On the other hand, a number of biblical passages, particularly Deuteronomy 17:8–13, enjoin that a decision for every future problem, whether arising from a precept governing man's relationship with the Divine, or with his fellow man, must be sought at the hands of "the priest, the levite, and the judge," sitting at the particular time in the midst of the people, in judgment over them. This combination of priest, levite, and judge was designed to ensure, according to the halakhic interpretation, that the law should be determined by teachers and judges deciding according to their human knowledge and understanding, since the function of the priest and levite was to instruct and teach the people (cf. Deut. 33:10; Ezek. 44:23–24; Mal. 2:7; Josephus' reference to the prophet (Ant., 4:218) within the context of Deuteronomy 17:9 is contrary to the plain meaning of the text). Hence, when in the course of time the teaching of the law ceased to be the exclusive function of the priests and levites, it was decided that while it was proper for priests and levites to be members of the bet din, their absence would not affect its competence (Sif. Deut. 153).
Authority in Deciding the Halakhah
The prophet in his function as a bearer of the divine vision is assigned no part in determining the halakhah. "'These are the commandments – henceforth a prophet may no longer make any innovations" (Sifra 27:34). A halakhic rule that is forgotten may not be recalled by means of "divine spirit" but by way of study and logical reasoning (Tem. 16a; see Maim., intro. to Comm. to the Mishnah).
The sages of the Talmud carried this basic conception concerning the exclusive authority to interpret the Torah and continue its development to an extreme but inevitable conclusion – "even if they tell you that left is right and right is left – hearken unto their words" (Comm. on Deut. 17:10, 11; Mid. Tan. to ibid.; Sif. Deut. 154 et al.; cf. the version in tj, Hor. 1:1, 45d: "until they tell you that right is right and left is left." For a reconciliation between the texts see Abrabanel to Deut. ibid.; Divrei David (of David b. Samuel ha-Levi, author of the Turei Zahav) ad loc.; D. Hoffman, in Bibliography. It is possible that the two versions are related to the conflicting views between R. Kahana and R. Eliezer concerning the *Zaken Mamre (Sanh. 88a)). Thus the halakhah is so identified with its scholars and tradents that even their errors are binding as halakhah – a notion clearly expressed by Naḥmanides (Comm. on Deut. ibid.; see also Nissim Girondi, Derashot ha-Ran, nos. 7 and 11). This twofold principle of the exclusive authority of the halakhic scholars and of excluding any supra-human influence on the determination of the halakhah is vividly exemplified in the well-known aggadah of the dispute between R. Eliezer b. Hyrcanus and R. Joshua b. Hananiah and his colleagues concerning the "oven of Aknai" (bm 59b). Although a heavenly voice (bat kol) came forth to confirm the correctness of the former's minority opinion, R. Joshua refused to concede, countering with the argument that the Torah "is not in Heaven," "the Torah has already been given… embracing the rule that the majority must be followed" (Ex. 23:2). The aggadah concludes that even God accepted the majority view, and "rejoiced that His children had vanquished Him." Thus the absolute truth may be according to the opinion of an individual and the majority may err, but the halakhic truth lies with the majority opinion, since the halakhah was entrusted to the scholars, whose decision is accepted, as it were, by the Lawgiver Himself. It is true that some scholars took a contrary view, attributing a certain influence to supra-human authority in the determination of the halakhah, particularly with regard to the visions of the prophets, whose halakhic statements were interpreted as the Torah itself. Even after prophecy had ceased there were scholars who attached significance to supra-human influence, as illustrated in the aggadot of the bat kol intervening in the above-mentioned dispute and in that between Bet Hillel and Bet Shammai (Er. 13b). These must be seen, however, as the opinion of individual scholars, and it is clear that the opinion of Joshua prevailed, that "no attention is paid to a bat kol" (Ber. 52a; Pes. 114a). Maimonides (introd. to Yad.) assigns to the prophets and their courts an honorable place as links in the chain of tradition of halakhic transmission, stressing however that this was by virtue of the prophets' functioning as scholars and not in the role of prophets, and he explains that "the prophet does not come to make law but to command about the precepts of the Torah, to warn people that they shall not transgress them." A prophet who claimed divine instruction as to what was law or the halakhah, was to be branded "a false prophet" (Yad., Yesodei ha-Torah 9:1–4), from which it follows that "even if a thousand prophets, all of them equal to Elijah and Elisha, should hold to a reasoned opinion, and a thousand and one scholars reason otherwise, the majority must yet be followed" and the halakhah decided according to the words of the latter (Yad. introd.). Some seven centuries later Aryeh Leib b. Joseph ha-Kohen succinctly summarized the matter, stating: "The Torah was not given to the angels, but to man who possesses human intelligence… the Torah was given to be determined by human intelligence, even if human intelligence errs… and the truth is determined by the agreement of the sages by using human intelligence" (introd. to Keẓot ha-Ḥoshen to Sh. Ar., Ḥm).
Authority in Every Generation
This guiding principle in the Weltanschauung of the halakhists dictated the development of the halakhah in all its history. From time to time there emerged new spiritual centers of the Jewish people. When Jabneh became such a center, after the destruction of the Temple, it was laid down that the court there was to be the central determining authority (Sif. Deut. 153), and Yose ha-Gelili explains the words "in those days" in that verse (Deut. 17:9) as referring to "a competent judge functioning at the particular time" (Sif. Deut. 153). The possibility is recognized that future scholars might not be as wise as their predecessors; nevertheless contemporary scholars and judges should be regarded with the same esteem as those of past generations and "whoever is appointed leader of the community, even if he be the least worthy, is to be regarded with the same esteem as the mightiest of earlier generations." Moreover, "Say not, 'How was it that the former days were better than these?' for it is not out of wisdom that you enquire concerning this" (rh 25b based on Eccles. 7:10; Tosef. rh 2:3). The enduring continuity and vitality of the halakhah dictate that the scholars of each generation exercise the authority conferred on them in the cause of its continued creativity and development, and to refrain from using such authority, or to question it, on the grounds that the wisdom of later scholars does not match that of their precursors, would show lack of understanding.
Evolution of the Halakhah
The halakhic scholars exercised the authority given them by the basic norms of the halakhah – i.e., Written Torah, in certain established ways, recognized by the halakhic system itself for the purpose of its own evolution, i.e., by utilizing halakhah's legal sources. The primary legal source is *Midrash (i.e., interpretation and construction), various modes of which were employed to find solutions to new problems, first by interpretation of the written law and thereafter of the Mishnah and successive halakhic sources (see *Interpretation). When interpretation offered no means of a solution, or the proffered solution provided no answer to contemporary requirements, a second legal source was used: namely, legislation or enactment by way of the takkanah and gezerah (see *Takkanot). Other legal sources employed were *minhag (custom), ma'aseh (precedent), and sevara (legal logic). In pursuing, by means of the above-mentioned legal sources, their task of fashioning the halakhah – which gave order to daily vicissitudes of life, while itself being shaped by them – the halakhic scholars clung to a twofold objective. On the one hand they maintained an unswerving concern for the continued evolution and development of the halakhah, and, on the other, for the great and onerous responsibility of preserving its spirit, orientation, and continuity.
The Rule of "Hilkheta Ke-Vatra'ei"
The substantive rule of "hilkheta ke-vatra'ei" (i.e., that "the law is according to later halakhic scholars") was a development of the post-talmudic period, endorsed by the fundamental principle of the halakhic scholars' authority. In the history of the halakhah, the terms "rishonim" and "aḥaronim" are commonly accepted as signifying the scholars from the middle of the 11th to the 16th centuries and those from the 16th century onward, respectively. These terms, however, are also applied to halakhic scholars prior to the 11th century to indicate not only their chronological order but also the greater authority halakhically attributed to earlier scholars as compared with later ones. R. Johanan stated: "The hearts of the rishonim were like the door of the ulam ('the larger hall of the Temple') and those of the aḥaronim like the door of the heikhal ('the smaller hall') but ours are like the eye of a fine needle." *Abbaye, *Rava, and Rav *Ashi compared with even more modesty their own standing with that of earlier scholars (Er. 53a). *Amoraim were not permitted to dispute statements of the *tannaim, a relationship of deference preserved in turn by the *geonim and the rishonim and aḥaronim of the rabbinic period toward their respective predecessors.
The high regard paid to the statements of earlier scholars did not prevent Jewish law from developing in the course of time an important rule, essential for the purpose of bestowing authority on contemporary scholars to decide the halakhah according to the prevailing circumstances and problems of their time. This rule – that the law is according to later scholars – dates from the geonic period. It laid down that until the time of Abbaye and Rava, i.e., the middle of the fourth century c.e., the halakhah – in case of any difference of opinion among the scholars – was to be decided according to the views of the earlier scholars rather than those of later dissenting scholars; from the time of Abbaye and Rava onward and also in case of disputes among the post-talmudic scholars, the opinions of later scholars would prevail over the contrary opinions of an earlier generation in deciding the halakhah (Asher b. Jehiel, Piskei ha-Rosh, bm 3:10; 4:21; Shab. 23:1). Certain sources render this rule applicable also to the period preceding Abbaye and Rava (see L. Ginzberg, Geonica, 2 (1909), 21–22, 32). The principle of hilkheta ke-vatra'ei is applicable also when a pupil dissents from his teacher (Resp. Maharik, 84; Malachi b. Jacob ha-Kohen, Yad Malakhi, no. 17) and even when an individual disputes the views of a number of earlier scholars (Yad Malakhi, no. 169; Pithei Tesḥuvah no. 8, Sh. Ar., Ḥm 25).
Among the reasons advanced for this rule are those of Asher ben Jehiel. "All matters not elucidated in the Talmud, as compiled by Rav Ashi and Ravina, may be controverted and reconstructed even when the statements of the geonim are dissented from… The statements of later scholars carry primary authority because they knew the reasoning of earlier scholars as well as their own, and took it into consideration in making their decision" (Piskei ha-Rosh, Sanh. 4:6; idem, 55:9); Joseph *Colon gives the somewhat similar reason that since the later scholars knew of the statements of earlier scholars and deliberated them, yet did not heed them, "it is a sign that they knew that the statements of earlier scholars were not to be relied upon in the particular matter" (Resp. Maharik, 84). So, too, various reasons were given as to why this rule was only relevant from the time of Abbaye and Rava onward, one view being that from their time onward pupils learned not only the system of their own teacher but other systems as well, and therefore the pupils' decision was to be preferred (Colon, ibid.); in the tosafot (Kid. 45b) the view is given that later scholars "took greater pains to present the halakhah in a sound form."
It follows from the above-mentioned reasons that the rule of hilkheta ke-vatra'ei only applied when the later scholar had considered the statements of his predecessor, and, after weighing them, was able to prove the correctness of his opposing view in ways acceptable to his contemporaries (Piskei ha-Rosh, ibid.; Resp. Maharik, 94). Thus, too, the rule was accepted by *Isserles as a guiding principle in deciding Jewish law (to Sh. Ar., Ḥm 25:2). Some of the scholars, particularly among the aḥaronim, laid down several additional reservations concerning the operation of the rule. The rule should not be understood as diminishing in any way the esteem in which scholars of an earlier generation were held by later ones, but rather as inspiring the later *posek (decider) to reach his decision with a sense of responsibility, awe, and humility, once having reached his conclusion, the halakhah was as he and not as earlier scholars had decided.
On the meaning of the rule that "a bet din may not set aside the ruling of another bet din unless it exceeds the latter in wisdom and standing," and the resultant conclusions, see *Takkanot.
Z.H. Chajes, Torat ha-Nevi'im (1836), ch. 1 = his: Kol Sifrei Mahariẓ Ḥayyut, 1 (1958); D. Hoffmann, Der Oberste Gerichtshof… (1878), 9–13; M. Tchernowitz, Toledot ha-Halakhah, 1, pt. 1 (1934), 67–111; et, 9 (1959), 341–5; Urbach, in: Tarbiz, 18 (1946/47), 1–27; Elon, in: ilr, 2 (1967), 550–61.