Since I wrote my paper in defense of the Oral Law I have seen some points in it that I would like to expand upon. Since there is nothing in the paper that I need correct this article is written as an addition to, and not to replace anything in that paper. It is being written to answer some questions that seem to still exist. The main issue here is the source of Rabbinic Authority. In clarifying this issue I will also discuss and explain two different stories that appear in the Talmud, that reflect the Rabbinic understanding of the extent of this authority. What is the biblical basis for Rabbinic authority?
The first is the story of Rabbi Eliezer in Bava Metziah 59b:
It was taught: “On that day Rabbi Eliezer used every possible answer to prove his view but they did not accept his view. He said the them, ‘If the halacha is as I say then let this Carob tree prove it.’ The tree then moved from its place one hundred amos. Some say it was four hundred amos.
They said to him, ’We don’t bring a proof from a Carob tree.’
Then he said to them, ‘If the Halacha is as I say then let this steam of water prove it.’ The stream then reversed its course.
They said to him, ‘We do not bring proof from a stream of water.’
Then he said to them, ‘If the Halacha is as I say then let the walls of the Beis Medrash prove it.’ The walls of the Beis Medrash bent over and started to fall.
Rabbi Yehoshua reproved them, and said to them,’ When Torah scholars are disagreeing in halacha what is it to you?’ They did not fall due to the honor of Rabbi Yehoshua nor did they return upright due to the honor of Rabbi Eliezer. They remained leaning.
Then he said to them, ‘If the Halacha is as I say then from Heaven it should be confirmed.’ A heavenly voice was heard that said, ‘why do you contend with Rabbi Eliezer the halacha is always according to his view.’
Rabbi Yehoshua stood up and said, ’It is not in Heaven.’
What does it mean that ‘it is not in Heaven’? Rabbi Yirmiya said ‘The Torah has already been given on Mount Sinai and we do not consider heavenly voices since it has already been written in the Torah “You shall follow after the Majority.”’
I will explain the point of this story later, but I would just like to make one point here, it is not just Rabbi Eliezer who can make miracles occur to support his view, Rabbi Yehoshua did so with the walls. The difference was that Rabbi Yehoshua did not rely on miracles to influence others to follow his view of the Halacha. This brings to mind the injunction of the Torah in Deuteronomy 13:2-6:
2. If there arise in the midst of thee a prophet, or a dreamer of dreams—and he give thee a sign or a wonder, 3. and the sign or the wonder come to pass, whereof he spoke unto thee—saying: ‘Let us go after other gods, which thou hast not known, and let us serve them’; 4. thou shalt not hearken unto the words of that prophet, or unto that dreamer of dreams; for the LORD your God putteth you to proof, to know whether ye do love the LORD your God with all your heart and with all your soul. 5. After the LORD your God shall ye walk, and Him shall ye fear, and His commandments shall ye keep, and unto His voice shall ye hearken, and Him shall ye serve, and unto Him shall ye cleave. 6 And that prophet, or that dreamer of dreams, shall be put to death; because he hath spoken perversion against the LORD your God, who brought you out of the land of Egypt, and redeemed thee out of the house of bondage, to draw thee aside out of the way which the LORD thy God commanded thee to walk in. So shalt thou put away the evil from the midst of thee.
Here we see a clear command to ignore miracles when they are used to make us violate the Torah. This story seems to relate this issue to Rabbinic Halacha.
The second story is in the last Mishnah of chapter 2 of tractate Rosh HaShanah.
It once happened that two men came (to give witness to the sighting of the new moon.) They said ‘we saw the new moon in the east in the morning and in the west at night.’ Rabbi Yochanan ben Niri said they were false witnesses. When they came to Yavneh Rabban Gamliel accepted them (as valid witnesses).
Another time two came and said that they saw it (the moon) in its time and the next night they didn’t see it. Rabban Gamliel accepted them. Rabbi Dosa ben Horkanes said they were false witnesses. (He said) how can a woman give birth and the next day still be pregnant? Rabbi Yehoshua said to him, your words appear correct to me.
Rabban Gamliel sent to him (Rabbi Yehoshua) I command you to come to me with your staff and your money on the day that Yom Kippur would fall out according to your calculations.
He (Rabbi Yehoshua) was disturbed and went and found Rabbi Akiva. He (Rabbi Akiva) said to him, ‘I can prove that everything that Rabban Gamliel did (with regards to declaring the new moon) is a fait accompli. As it says,”These are the appointed festivals of HaShem that you shall proclaim as holy gatherings.” This is true whether they are declared in their proper time or not. We only have these festivals and no others.’
He came to Dosa ben Horkanes, who said to him, ‘If I was to come and contest with the court of Rabban Gamliel I would have to contest with every court that there had been from the time of Moshe to today. As it says, “Moshe, Aharon Nadav, Avihu and the seventy elders ascended.” Why did the verse not give the names of the elders? This is to teach that any time three gather together as a court for Israel they are like the court of Moshe.
He (Rabbi Yehoshua) took his staff and his money in his hand and went to Yavneh to Rabban Gamliel on the day that his calculation said was Yom Kippur. Rabban Gamliel stood up and kissed him on his head. He said to him, ‘Come in peace my teacher and my disciple; my teacher in wisdom and my disciple in that you accepted my words.’
The idea here seems similar to the one on Bava Metziah, although there is a major difference. Here there is more of an argument that Rabban Gamliel needs to be followed as the issue dealt with when the new moon is declared, and hence when the holidays would fall out. Holidays are a national issue, and the unity of the people would fall apart if an individual could decide that one day as opposed to another was when the holidays are to be held. In fact, until today, the Jewish people do not have any arguments as to when the holidays are because the months have been set based on the same principles of this Mishnah. But this brings up the issue that Rabban Gamliel was ruling on ‘facts’. That he needed to accept Rabban Gamliel’s ‘facts’ when they disagreed with his own, seems to be an even more difficult thing then in the previous story.
To understand the principles the Rabbis are teaching we need to examine Deuteronomy 17:8-13. However, we cannot understand that important passage without first looking into and examining a number of other passages.
The first passage is Exodus 18:13-26. Here we see that Yisro sees that his son-in-law Moshe is busy all day teaching and giving rulings on the Torah:
13 And it came to pass on the morrow, that Moses sat to judge the people; and the people stood about Moses from the morning unto the evening.
14 And when Moses’ father-in-law saw all that he did to the people, he said: ‘What is this thing that thou doest to the people? why sittest thou thyself alone, and all the people stand about thee from morning unto even?’
15 And Moses said unto his father-in-law: ‘Because the people come unto me to inquire of God;
16 when they have a matter, it cometh unto me; and I judge between a man and his neighbour, and I make them know the statutes of God, and His laws.’
17 And Moses’ father-in-law said unto him: ‘The thing that thou doest is not good.
18 Thou wilt surely wear away, both thou, and this people that is with thee; for the thing is too heavy for thee; thou art not able to perform it thyself alone.
19 Hearken now unto my voice, I will give thee counsel, and God be with thee: be thou for the people before God, and bring thou the causes unto God.
20 And thou shalt teach them the statutes and the laws, and shalt show them the way wherein they must walk, and the work that they must do.
21 Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating unjust gain; and place such over them, to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens.
22 And let them judge the people at all seasons; and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge themselves; so shall they make it easier for thee and bear the burden with thee.
23 If thou shalt do this thing, and God command thee so, then thou shalt be able to endure, and all this people also shall go to their place in peace.’
24 So Moses hearkened to the voice of his father-in-law, and did all that he had said.
25 And Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens.
26 And they judged the people at all seasons: the hard causes they brought unto Moses, but every small matter they judged themselves.
Here we see a few things:
The judges are to be CHOSEN but not by any special Divine selection, as we see: “Moses chose able men out of all Israel”. Only personal qualifications mattered in the choice. There was no need for Divine approval.
They were to be in place of Moshe and share with him the same responsibilities as it says: “bear the burden with thee”.
What did Moshe do that they shared?
Teaching and judging as it says: “I judge between a man and his neighbor, and I make them know the statutes of God, and His laws.” Moshe judged and taught. They would come to him to ask what they were to do and he would instruct them, and so the judges. This would not be restricted to just ruling on cases, but any instance of doubt as to what G-d’s law required.
Those cases that were too hard would be brought to Moshe himself: “the hard causes they brought unto Moses.”
What is important to understand here is that whenever we see an injunction from G-d that they needed to follow what was written in the Torah that also means, based on this passage, that they are also REQUIRED consult with the Judges and follow what they say!
This idea is repeated again in Deuteronomy 1:9-18:
9 And I spake unto you at that time, saying, I am not able to bear you myself alone:
10 The LORD your God hath multiplied you, and, behold, ye are this day as the stars of heaven for multitude.
11 (The LORD God of your fathers make you a thousand times so many more as ye are, and bless you, as he hath promised you!)
12 How can I myself alone bear your cumbrance, and your burden, and your strife?
13 Take you wise men, and understanding, and known among your tribes, and I will make them rulers over you.
14 And ye answered me, and said, The thing which thou hast spoken is good for us to do.
15 So I took the chief of your tribes, wise men, and known, and made them heads over you, captains over thousands, and captains over hundreds, and captains over fifties, and captains over tens, and officers among your tribes.
16 And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him.
17 Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God’s: and the cause that is too hard for you, bring it unto me, and I will hear it.
18 And I commanded you at that time all the things which ye should do.
Here we see a repetition of what was said in Exodus with a little addition. We see that the choosing was by the people: “Take you wise men, and understanding, and known among your tribes, and I will make them rulers over you” They were to take the burden from Moshe and deal with: “your cumbrance, and your burden, and your strife.” This means not just the conflicts between men, but the problems if each and every one of them that they wished to know what G-d’s will was on that matter.
This concept of choosing is restated as a command of G-d in Deut 16:18:
18 Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, throughout thy tribes
This was to apply after they arrived in the land of Israel. It should be noted that there is a change here made from what had been previously. The judges were to be tied to the city and no longer to the number of people. There is also no mention of a hierarchy of courts. Moshe would no longer be there as the final authority. The final authority was transferred to the “people’s courts”.
We actually see an example of the local courts in Ruth 4:1-2:
1 Then went Boaz up to the gate, and sat him down there: and, behold, the kinsman of whom Boaz spake came by; unto whom he said, Ho, such a one! turn aside, sit down here. And he turned aside, and sat down.
2 And he took ten men of the elders of the city, and said, Sit ye down here. And they sat down.
Now we can understand Deuteronomy 17:8-13:
8 If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke, being matters of controversy within thy gates: then shalt thou arise, and get thee up into the place which the LORD thy God shall choose;
9 And thou shalt come unto the priests the Levites, and unto the judge that shall be in those days, and enquire; and they shall shew thee the sentence of judgment:
10 And thou shalt do according to the sentence, which they of that place which the LORD shall choose shall shew thee; and thou shalt observe to do according to all that they inform thee:
11 According to the sentence of the law which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do: thou shalt not decline from the sentence which they shall shew thee, to the right hand, nor to the left.
12 And the man that will do presumptuously, and will not hearken unto the priest that standeth to minister there before the LORD thy God, or unto the judge, even that man shall die: and thou shalt put away the evil from Israel.
13 And all the people shall hear, and fear, and do no more presumptuously.
Here we see that they are to perform as BOTH judges and teachers. They are to judge cases and answer for any ‘controversy’ that would occur. They are to teach and judge: “sentence of the law which they shall teach thee, and according to the judgment which they shall tell thee.” Literally the first part says: “according to the TORAH they will teach you.” Again this is what is “written in the Torah” to do and this is what is meant by following what is “written in the Torah”. Just as the courts of the United States have ‘constitutional authority’ so the Jewish courts, chosen by the people, have ‘Divine authority’.
Now we are almost there. Clearly we see that the judges are to decide what the Torah law is, but aren’t they restricted? Are they not limited to just interpreting the law? For example, in the American system of justice there are various levels of Federal Courts. When there is a question as to whether a specific law is constitutional it goes first to District Courts and the Appeals Courts. There they can only look over previous decisions and try to see how this fits in. They cannot ‘make law’ they can only interpret or ‘discover the law.’ However if the case goes to the Supreme Court, what they say “makes law”. A good example was the law ending segregation Brown vs Board of Education, which threw out a previous Supreme Court ‘law’ and replaced it with a new one. They literally made law. It would seem that because the Torah is divine, and from G-d, that these judges can only discover the law, but not make it. They were given the authority to decide what law is but it is in the end G-d’s law and not man’s law. If it were otherwise, wouldn’t they be changing G-d’s law???
While this argument is very logical and would seem true, is it really true? Such a view assumes that the Torah law is something that men do not influence, they can only discover it. It is something that is objective and not subject to human interpretation. Therefore when Divine authority is given, that is a limited authority. The person exercising that authority is not really doing anything, but is just reporting what is. However this is not the case, and we see an explicit example of where divine authority is given and this authority includes the CREATING of the facts, and is not just discovering them.
Chapters 13 and 14 in the book of Leviticus involve the complicated laws regarding Tzaras. Chapter 13 deals with Tzaras on a person and in his clothes, while in chapter 14 it deals with Tzaras that afflicts a house. When a person or garment have this affliction they become ritually unclean, but with a house the laws are a bit different. Not only the house but everything in it becomes unclean. How do we know that someone or thing has this? A person notices something that looks ‘funny’ and then he needs to go to the Kohen and tell him. The authority is given to the Kohen to look at the signs of this and make the final decision.
Here we have an interesting situation that sheds light on our issue of authority. When the Kohen declares a house unclean, is he discovering a fact, or is he creating it? If we contend, as seems more logical, that the law is objective and that authority is given only to discover law then obviously he can only discover whether the house has this affliction or not. If we assume that this is G-d’s objective decreed law, then he clearly should not be able to do more then discover what the ‘facts’ are. G-d has decreed things clean or not. This would mean, if a house had this affliction, then from the time we are aware that the signs of this affliction had appeared, all things in the house should be unclean. But this is not the case. We read in Leviticus 14:35-36:
35 then he that owneth the house shall come and tell the priest, saying: ‘There seemeth to me to be as it were a plague in the house.’
36 And the priest shall command that they empty the house, before the priest go in to see the plague, that all that is in the house be not made unclean; and afterward the priest shall go in to see the house.
Here the priest explicitly tells the homeowner to remove his things BEFORE he can arrive and make his decision declaring the house unclean. This is explicitly done to make sure that the things in the house DO NOT become unclean!!! There is no way to understand this passage except to say that, although it is G-d’s law, it is the word of the Kohen which causes the house to change status from clean to unclean regardless of how long the plague was in the house. This includes anything that may have been there from when the person says the plague had appeared until the Kohen comes! The Kohen commands the removal AFTER the owner has seen the signs and BEFORE he declares the house unclean. It is his word and only that which creates the ‘facts on the ground’. They are not unclean/clean based on a Divine fiat, but on a human decision, that ignores the Divine.
We can now understand what Rashi on the verse in Deuteronomy 17:11; “thou shalt not decline from the sentence which they shall shew thee, to the right hand, nor to the left”; on which Rashi says: “even if they say the right is left or the left is right.” When someone is given Biblical authority to make a decision that is absolute. What they say creates the facts, as we see clearly above with the Kohen. This is what is ‘written in the Torah’! Even though it is difficult to accept logically or theologically, it is a command of G-d and His will that it be so.
To summarize the Biblical evidence to this point:
Judges are chosen by Israel to make legal decisions.
They make decisions on any type of question asked.
Their authority is creative, and what they decree becomes G-d’s law.
Let us now look at the Mishnah in Rosh HaShanah. Rabbi Yehoshua was given two answers, each of which brings out this point. First he is told that whatever Rabban Gamliel decides BECOMES fact, whether it conforms to the facts as he understood them or not. Second, and even deeper, to argue against that in fact destroys the whole basis of the Legal system decreed by G-d, and questions every decision made from the time of Moshe on.
But this Mishnah deals with a fully human process. What if there is a miraculous intervention on one side of the argument?
This is the point being made in Bava Metziah. Since it is Biblically required to follow those who have authority, and it has long been decided by courts that the majority is to be followed, then to not follow the majority is to go against the Torah itself. The Torah is no longer subject to Divine choice, but human decision as we see with the Kohen. It is subjective, under the discretion of the Jewish courts, and not objective Divine fiats.
Therefore Deuteronomy 13:2-6 applies which is why Rabbi Yehoshua, who could also have miraculous signs shown for him did not use them. That is why Rabbi Eliezer was not listened to, and in the end Divine support was shown for Rabbi Yehoshua as opposed to Rabbi Eliezer. It is why no miracle could effect our commitment to follow G-d’s law today.
What is the source for Rabbinic Authority?
The Torah itself explicitly commands that the people of Israel choose for themselves qualified people and to bestow upon them the full authority to render decisions, which when given become Biblically obligatory on the people. The Torah IS NOT in Heaven, it is near to us, here in this world.
© Moshe Shulman 2011 http://www.judaismsanswer.com
For more information, questions answered, or help with missionaries you can reach Moshe Shulman at [email protected]
 I realize that ‘Rabbi’ is anachronistic when applied to the time before the 1st century or so. I use it because to use another word would be confusing, even though ‘Judicial Authority’ might be a better term. Also the use of the term ‘Rabbi’ would seem to exclude the authority of those authorities in Sefardic lands who for many generations did not use that term, but the term Chachamim. A term likewise applied to the Rabbis of the Talmud. For that reason I wish to clarify that I use the term ‘Rabbi;’ to denote those who were asked to decide questions of Jewish law, no matter what name they may have called themselves at the time.
 Both of these stories are mentioned by Dr. Brown in his books and lectures attacking Judaism. It is not my intention to directly deal with his false claims in this article, but to address the general issue. Obviously the results of this article have a significant effect on how one needs to view what he has written. These two stories are mentioned because they are good vehicles to bring together the Biblical truth and Rabbinic practice.
 180 to 240 feet.
 Deut. 30:12
 Exodus 23:2. This verse is used as an asmachtah (support) that in Biblical matters we follow the majority, whether in making legal decisions, or with mixtures of kosher and non-kosher food items etc.
 Biblical verses are taken from the JPS version.
 Brown agrees to the concept that miracles cannot be used to make one violate Torah, but he denies that it would apply here as the Rabbis decisions are not ones of Torah.
 Leviticus 23:37
 Exodus 24:9
 It is interesting to note that any Messianic who is keeping any Jewish holiday based on the Jewish calendar has accepted the authority of the Rabbis, and their authority to declare when the months begin.
 At least for the period of time they were in the desert they needed to end up with Moshe. We will see that this is changed explicitly in Deuteronomy..
 Sometimes it is contended that this is taken to an extreme and extended into areas that G-d did not intend. But this is incorrect. In the Torah we see that G-d has made His will known on many areas that would seem beyond simple conflict between men. For example in Deuteronomy: 20:19-20 is the first example of environmental law; 23:25-26 workplace laws; and 20:14 deals with bathrooms. G-d’s laws in the Torah were ‘intrusive’ and as such the scope of Rabbinic Authority is much wider then some would think. This issue would require an article of it’s own. I just mention this point because of an objection that is sometimes raised.
 The Rabbis understood that the court here mean specifically the Great Sanhedrin in Jerusalem, which functioned as a final appeals court on certain issues. Obviously this would exclude normal court decisions which simply required two witnesses. It would be questions as to whether something was allowed or not etc.
 Numerous examples could be given of this especially in cases decided by the Warren Court.
 This is mistakenly translated as leprosy. We are not really sure what this was.
 It is interesting to note that the calendar we use today was instituted in the 4th century and on that authority we keep the holidays, regardless of what any physical sightings would show.
 The MaHaRaL of Prague brings a deeper understanding of this in Baar HaGolah on page 55.