The Rules of Halacha
Jewish law is determined through an exacting process of metaphysical science, handed down from Sinai.
It is God's will that there exist a certain degree of uniformity in Jewish practices, as well as in the interpretation of the Law. It is thus written, "There shall be one Torah and one law for you" (Numbers 15:16).
Therefore, even when no formal central authority, such as the Sanhedrin, exists, God has provided guidelines to insure the continuance of Judaism as a unified way of life. These guidelines provide the basis for the system of Torah law known as halacha (literally, "the way").
Moreover, it was impossible to include every possible case in the Oral Torah. It would also be impossible for the Sanhedrin to decide in every possible case. Therefore, God gave each qualified Torah scholar the right to decide questions of Torah law. Then, even if laws were forgotten, they could be restored through the halachic process.
It is a positive commandment for a duly qualified Torah scholar to render decisions in questions of Torah law when asked. It is thus written, "You shall teach the children of Israel all the decrees which God told them through Moses" (Leviticus 10:11)…
The relationship between God and Israel guarantees that we will always be able to ascertain His will. It is thus written, "You will seek God your Lord, and you will find Him, as long as you search after Him with all your heart and with all your soul" (Deut. 4:29)…
God therefore granted the Jewish people as a whole a sort of collective Divine Inspiration so that they would be able to recognize the correct opinion in questions of Torah law. Therefore, when there is any question, it is ultimately decided on the basis of what becomes common practice. Hence, when a decision is accepted as a general custom, it becomes universally binding.
Therefore, any practice, decision or code that is universally accepted by the Jewish people is assumed to represent God's will and is binding as such. Even when a decision is initially disputed, the commonly accepted opinion becomes binding as law.
Since the Talmud was accepted by all Jews, it is the final authority in all questions of Torah law.
Since the Talmud was accepted by all Israel, it is the final authority in all questions of Torah law. Since such universal acceptance is a manifestation of God's will, one who opposes the teachings of the Talmud is like one who opposes God and His Torah. All later codes and decisions are binding only insofar as they are derived from the Talmud.
Other works, written prior or contemporary to the Babylonian Talmud are likewise very important for the understanding of laws, beliefs and history. However, since they were all known to the compilers of the Talmud, it is assumed that when the Talmud disputes these works, it does so for a reason. Therefore, whenever they disagree with the Talmud, decisions found in the Jerusalem Talmud, Midrash and Tosefta are ignored. There are, however, certain special cases, where, because of long established custom, the opinions of other early works are accepted, even when they disagree with the Talmud.
All the opinions found in the Talmud are equally sacred. Still, there is always one binding opinion whenever questions of actual practice are concerned. This is known either from the Talmudic discussions itself, or from later tradition.
However, when a dispute involves questions of opinion or history, and has no special consequences any opinion found in the Talmud is equally acceptable. Similarly, no final decision is normally rendered between conflicting Talmudical opinions in the case of laws that are no longer applicable.
Chain of Transmission
The main work of the Talmud came to an end with the death of Ravina in 4259 (499 CE). This initiated the period of the Savoraim, who made some additions to the Talmud and placed it in its final form. The period of the Savoraim lasted for 90 years until 4349 (589 CE). They reached final decisions in all questions that had not been decided in the Talmud. Since the Savoraim headed academies including all the sages of the time, their decisions are as binding as those of the Talmud.
Following the Savoraim came the period of the Geonim, which lasted until the death of Rav Hai Gaon in 4798 (1038 CE). They headed the great academies of Sura and Pumbedita in Babylonia, which had been founded in Talmudic times, and were accepted as centers of authority in all matters of Torah law. The decisions of the Geonim were based on traditions from the masters of the Talmud, and were almost universally accepted. Therefore, they cannot be disputed by any later authority without uncontestable proof.
With the closing of the great Babylonian academies, there ceased to be any formally acknowledged center of Torah authority. However, numerous codes, based on the Talmud and the decisions of the Geonim were compiled by leading rabbis, and they achieved almost universal recognition.
Most noteworthy among these were the codes of Rabbi Yitzchak Al-Fasi (Rif; 1013-1103 CE) and Rabbi Asher ben Yechiel (Rosh; 1250-1328 CE), as well as the Yad HaChazaka of Rabbi Moses Maimonides (Rambam; 1135-1204 CE). The rabbis of this period are known as Rishonim or "first [codifiers]."
Code of Jewish Law
The work that was most widely accepted, however, was the Shulchan Aruch (Code of Jewish Law) written by Rabbi Yosef Caro (1488-1575 CE), which took into account almost all of the earlier codes. Since the Shulchan Aruch followed the practices of the Sephardic practices, a gloss was added to it by Rabbi Moshe Isserles (1520-1527 CE), including all the Ashkenazic customs.
With the publication of the Shulchan Aruch, the period of the Rishonim came to an end, and the period of the Acharonim or "later [codifiers]" began. The opinions of the Rishonim gained almost universal acceptance through the Shulchan Aruch, and therefore, the Acharonim usually do not oppose them. While the Acharonim may decide among opinions found in the Rishonim they do not dispute them without conclusive evidence."
The Shulchan Aruch was not the individual opinion of its authors, but a compilation of opinions found in the works of the Rishonim which had gained the widest acceptance. Because of the near universal acceptance of the Shulchan Aruch, its decisions are considered binding, unless otherwise indicated by the leading authorities of succeeding generations.
Since the Shulchan Aruch was the standard of Torah law, it became the subject of many commentaries which expounded, and occasionally disputes its opinions. Many of those which were printed alongside the Shulchan Aruch were almost universally accepted.
There were a great many accepted authorities, both among the commentators to the Shulchan Aruch, and among the writers of responsa (teshuvot). These applied Torah law to individual cases, and often set binding precedents. Over the years, various compilations of these later opinions were published.
The opinions found in any generally accepted code or responsum is considered a binding precedent.
Nevertheless, a recognized Torah scholar may dispute such a decision if he has ample Talmudic proof or an unequivocal tradition that a particular decision was not generally accepted. In such cases, it is preferable to follow the rulings of a living authority, as it is written, "You shall come... to the Judge who shall be in those days" (Deut. 17:9).
In every generation, there are certain rabbis who, because of their great scholarship and piety, are generally accepted as religious leaders and authorities, as it is written, "You must observe all that they decide for you" (Deut. 17:10). Although this commandment relates specifically to the Sanhedrin, it also applies to the religious leaders of each generation.
Just as a religious leader must be outstanding in wisdom and scholarship, so must he be distinguished in piety and observance. It is thus written, "They shall seek the Torah from his lips, for he is an angel of the Lord of Hosts" (Malachi 2:7). This is interpreted to mean that we should only seek to learn the Torah from a rabbi who resembles an angel in holiness and piety. If a person is not outstanding in piety and observance, he is not worthy of the prestige and authority of a religious leader, no matter how great his scholarship.
An unopposed decision, whether given by a contemporary religious leader or found in an accepted code, should be accepted, even if it is not mentioned by other authorities.
Whenever there is a dispute between two equally great authorities, whether they are contemporary to each other or not, we decide the same as in the case of any other questionable circumstance. If the case involves a law from the Torah, the stricter opinion must be followed, while if it involves rabbinical law, the more lenient opinion is followed. This is a general rule.
The same rule also applies where there is equal reason to forbid as to permit, and therefore, no final decision is possible. However, if there is absolutely no basis whatever for a decision, then the stricter course must be taken, even in cases of rabbinical law.
In the case of a Biblical law, the stricter opinion is always followed, even if it is that of the lesser of two authorities. However, in a question of rabbinical law, the opinion of the greater authority is followed, whether it is stricter or more lenient.
The religious leader with the largest following is always considered the greater authority. However, if two authorities have an equal following, the one generally recognized as a superior scholar is considered the greater.
Although experience is also taken into consideration, age alone is not enough to distinguish an authority.
It is forbidden for a student to oppose his teacher. Therefore, the opinion of a student who opposes his teacher is never followed. This is even true when the student has a stricter opinion in the case of Biblical law.
This, however, is only true during the lifetime of the teacher. After his death, his students are no different from any other independent scholars. Similarly, if a student surpasses his master in scholarship, he is no longer subservient to his master's opinions.
Following the Majority
It is written, "You shall incline after a majority" (Exodus 23:2). Although this commandment relates specifically to the Sanhedrin, it also applies to any controversy between religious leaders. In particular, if an individual opinion is opposed by that of the majority, the former is ignored.
Therefore, if two factions oppose each other in a question of law, the opinion of the faction including the greatest number of sages is that which must be followed. However, if it is well established that the smaller group is superior in wisdom and scholarship, then its opinion must be followed. Wisdom takes precedence over number.
Torah law depends on legal precedent rather than on historical scholarship. Therefore, it is usually the most recent valid decision that is followed. This is even true when it disputes an earlier majority.
However, a later authority is only followed when he is known to be fully aware of the earlier decision and worthy of disputing it. Moreover, he must refute the earlier decision with clear and unambiguous proof rather than with mere logic. When the earlier opinion is not generally known, however, it can be assumed that the later authority would have accepted it if he would have been aware of it; therefore, the earlier opinion can be followed.
The Community Rabbi
When a community accepts a rabbi as their religious leader, his decisions are binding in all cases.
The rabbi of a community may even reverse the decisions of his predecessors. This is true even if the current rabbi's decisions are more lenient.
If the community rabbi is a recognized Torah authority, he must be followed, even when he disagrees with the majority of contemporary rabbis.
In all such cases, the rabbi must depend on his own judgment. He can be secure in the promise of divine guidance, as it is written, "Consider what you do, for you judge not for man, but for God, and He is with you in your decision" (2 Chronicles 19:6).
The authority of a community rabbi depends on his general acceptance. Therefore, other religious scholars living in the community may follow stricter opinions according to their own judgment. However, they may not openly oppose the community rabbi or publicly display their dissent.
Under no condition should the rabbi yield to the ignorant laity, no matter how great their number.
If there are many Torah scholars in the community who disagree with the rabbi, he should yield to the opinion of the majority. This is only true, however, where the majority are the rabbi's equals in wisdom and Torah knowledge. Under no condition should the rabbi yield to the ignorant laity in any question of Torah law, no matter how great their number.
In rendering a decision, a rabbi must carefully consider all its aspects. Wherever possible, he should strive to find a precedent for his decisions from the opinions of earlier authorities.
An opinion should not be based on abridged codes unless the rabbi knows their sources in the Talmud.
A rabbi should not base his decision upon the mere action of an earlier authority unless he thoroughly understands the issue, and knows that the reason for the action is completely unambiguous. However, if the act was accompanied by a formal decision, it is the most valid of precedents.
Just as a rabbi may not permit that which is forbidden, so must he be careful not to forbid that which is permitted. Therefore, if a rabbi must forbid something merely because of a question of law, because of a custom, or because of special circumstances, he must state his reason so as not to establish an erroneous precedent. Similarly, if he must permit something in an emergency, he must clarify his reason for that particular case.
A rabbi should be careful not to render an unusual or anomalous decision, unless he carefully explains the reasons for it. Therefore, any uncommon decision that depends on subtle or esoteric reasoning should not be publicized, lest it lead to erroneous conclusions. It is for this reason that there are cases which are permitted only in the case of a scholar, and which may not be taught to the ignorant.
When a rabbi renders a decision in a case in which there are no clear precedents, he must strive to bring as many proofs as possible…
When a rabbi renders a decision in a question of law, the Torah recognizes it as binding. Therefore, when a rabbi decides on a case and forbids something, it becomes intrinsically forbidden.
Hence, when one rabbi forbids something in a specific case, another rabbi may not permit it in the same case. One rabbi can overturn the decision of another only if he can prove the initial decision to be erroneous.
Since the initial decision renders the subject of a case intrinsically forbidden, it cannot be permitted even by a greater sage or by a majority rule.
An erroneous decision cannot render a case intrinsically forbidden. Therefore, if a second rabbi is able to show that the original decision is refuted by generally accepted authorities or codes, he may reverse the original decision.
Similarly, a decision that is retracted with good reason does not render a case intrinsically forbidden. Therefore, if a second rabbi is able to determine that common practice traditionally opposes the initial decision, even where it is disputed among authorities, he may convince the first rabbi to retract his decision and permit the case in question. Individual logic and judgment, however, are not considered sufficient reason for a rabbi to reverse even his own decision…
In order to prevent controversy, one should not present a case before a rabbi without informing him of any previous decisions associated with that particular case.
Although the Torah demands a certain degree of uniformity in practice, it does recognize geographical differences. Therefore, different communities may follow varying opinions in minor questions of Torah law.
However, where there is no geographical or similar justification for varied practices, such differences are liable to be associated with ideological divergences and are forbidden. Within a single community, the Torah requires a high degree of uniformity in religious practice. In no case should it be made to appear that there is more than one Torah.
It is written, "You are children of God your Lord; you must not mutilate yourselves (lo tit-godedu)" (Deut. 14:1). Just as it is forbidden to mutilate one's body, so is it prohibited to mutilate the body of Judaism by dividing it into factions. To do so is to disaffirm the universal fatherhood of God and the unity of His Torah.
It is therefore forbidden for members of a single congregation to form factions, each following a different practice or opinion. It is likewise forbidden for a single rabbinical court to issue a split decision.
However, where a city has more than one congregation, or more than one rabbinical court, the following of each one is counted as a separate community, and each one may follow different practices. Nevertheless, it is forbidden for a city to split into two congregations primarily because of a dispute over law or practice.
It is forbidden for members of a community to follow different opinions even when it does not result in any strife. Where the differences in practice also result in strife and conflict, there is also the violation of the commandment, "You shall not be like Korach and his company" (Numbers 17:5), who caused strife and dissension in Israel…
The prohibition against dividing into factions only applies to cases involving obvious questions of law. It does not apply to cases that merely involve a question of custom or commitment. Similarly, one may unobtrusively follow a stricter opinion in a case where it is not obvious that he is dissenting from the accepted practice of his community.
A person is not guilty of forming separate factions when he has a valid reason for following a different practice than the community at large. Therefore, one may follow a stricter opinion because of his station or origin. However, when people from different communities form a gathering, they must all agree to abide by a common practice regarding all questions of law.
Paralleling the Will of God
Halacha does not represent mere legal decisions, but the will of God. Therefore, through the study of halacha, one can gain a closeness to God. It is through halacha that all things in the world become part of God's ultimate purpose. It is thus taught that one who studies halacha everyday is guaranteed a portion in the World to Come.
The essence of the halachic process is that as long as it is not clouded by ulterior motives or the desire for assimilation or profit, the collective Jewish will parallels the will of God. Any decision or practice that is instituted exclusively to serve God therefore joins the mainstream of Jewish tradition that partakes of the authority of the Torah itself. It is thus taught that whatever an earnest scholar may innovate in the future has already been spoken at Sinai.
From "The Handbook of Jewish Thought" (Vol. 2, Maznaim Publishing). Reprinted with permission.