Rabbinic Authority, Volume 1: The Vision and the Reality

By A. Yehuda Warburg

Introducing English-speaking readers to the parameters and scope of rabbinic authority in general, and the workings of the institution of the beit din—the Jewish court of law—in particular, this book presents 10 rulings in cases of Jewish civil law that the author handed down as a member of a beit din panel. These decisions touch on matters pertaining to employment termination, tenure rights and severance pay, rabbinic contracts, issues in the not-for-profit boardroom, real estate brokerage commission, drafting a halakhic will, a revocable living trust agreement, the division of marital assets upon divorce, spousal abuse, and a father's duty to support his estranged children. Accompanying these presentations is an examination of the notion of rabbinic authority, the business judgment rule, and an agunah's ability to recover for the infliction of emotional stress.

• Language: English
• Publisher: Urim Publications
• Release date: Oct 1, 2014
• ISBN: 9789655242065

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Rabbinic Authority: The Vision and the Reality –

Beit Din Decisions in English

by A. Yehuda (Ronnie) Warburg

Editor: Meira Mintz

Preparation of Index Sources: Eli Ozarowski

Copyright © 2014, 2013 by A. Yehuda (Ronnie) Warburg

All rights reserved

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 לרסה תמה

חברתי הנאמנת בדרכי בחיים

וחלקה כחלקי בכל פרי עמלי

Contents

Foreword by R. Dr. Aaron Levine, z"l

Preface

Part I    Rabbinic Authority: The Vision

Chapter 1    Towards Defining the Concept of Rabbinic Authority: A Contemporary Analysis

Chapter 2    The Business Judgment Rule in the Corporate World: A Comparative Approach

Chapter 3    Recovery for Infliction of Emotional Distress: Toward Relief for the Agunah

Part II    Rabbinic Authority: The Reality

Chapter 4    Decisions in Even ha-Ezer

a.    Division of Marital Assets upon Divorce

b.    Spousal Abuse as Grounds for Obligating a Get

c.    A Father’s Duty of Child Support towards His Estranged Children

Chapter 5    Decisions in Hoshen Mishpat

a.    Tenure Rights and Severance Pay

b.    The Status of a Promissory Note

c.    Rabbinic Contracts

d.    Self-Dealing in the Not-for-Profit Boardroom

e.    Real Estate Brokerage Fee Commission

f.    Drafting a Halakhic Will

g.    A Revocable Living Trust Agreement

Index of Halakhic Sources

About the Author

Foreword

In referring to the highest level of truth finding in a judicial proceeding, our Sages use of the phrase, "Ha-dan din emet la-amito." What is being conveyed here is that knowledge of the law is not sufficient to render a verdict of truth. In order for the dayan to arrive at the correct verdict, the precise facts of the case must be discovered as well.

A beth din panel is not only thoroughly versed in the relevant hala­khot, but is also well-equipped by virtue of educational background and professional work experience to grasp the reality on the ground. This entails a relentless commitment to relevant fact finding, taking nothing at face value, and understanding the implications of the facts for the commercial behavior of the parties.

A second characteristic of the halakhic-judicial process dealing with monetary matters consists of the documentation that must accompany the verdict that the panel hands over to the litigants at the conclusion of the proceedings. The claims of the plaintiff, as well as the respondent’s rebuttals and counterclaims, are meticulously recorded. Next, a thorough discussion of the issues from a halakhic perspective is presented. Finally, the verdict is rendered, and this verdict is demonstrated to have flowed from the halakhic discussion.

R. Dr. A. Yehuda Warburg has assumed a vital role in implementing this vision of a double level of truth in the Beth Din of America and on other panels. In the present work, Rabbinic Authority: The Vision and the Reality, R. Warburg presents a number of his judicial rulings. What stands out in these decisions is the halakhic framework, legal perspective, and reasoned opinions R. Warburg sets up to support his decisions.

For a number of decades, I have been involved on an ad hoc basis as a dayan, including serving on judicial panels for the Beth Din of America. In this capacity, I have often crossed paths with R. Warburg and served together with him on the same judicial panel. In each panel we served on together, R. Warburg’s outstanding Torah scholarship was always in evidence, scholarship motivated by a perfectionist’s drive to achieve new vistas in advancing the double dimension of truth that stands as the ideal for the halakhic-judicial process.

R. Dr. Aaron Levine, z"l

19 Adar 1, 5771

February 23, 2011

Preface

The present volume is intended as an introduction to a subject unfamiliar to many – rabbinic authority as reflected in our halakhic sources. Its subtitle – The Vision and the Reality – indicates the two perspectives from which we will approach this topic.

In discussing the halakhic vision of rabbinic authority, we will address a number of questions. How does Halakhah (Jewish law) envision rabbinic authority? What are the credentials for being a rabbinic authority? What is the difference between a rabbi who is an authority and one who is in-authority? What is the status of a congregational rabbi? How does a rabbi arrive at a halakhic decision? Is a rabbi bound to follow the opinions of his predecessors, or may he choose to render his own independent opinion? Under what conditions can he choose to issue his own judgment?

The author of Sefer Ha-Arukh, the first halakhic lexicon, defines Halakhah concisely:

Something that travels from the beginning of time until the end, or the path that the Jewish community walks.

Halakhah embodies the traditions transmitted throughout the generations; it is the path that the Jewish People have chosen to follow. But how wide is that path?

John Stuart Mill, the father of modern liberalism, famously claimed:

The only purpose for which power can be exercised over any member of a civilized community, against his will, is to prevent harm to others.¹

Does Halakhah endorse such a perspective, which would lead socially harmless matters to the individual conscience, even when it comes to business affairs?

This question leads us to many others. Are directors and employees in the corporate world halakhically and/or legally accountable for all their decisions? Should a halakhic arbiter or a civil court defer to a decision rendered by an employee or director, or should we scrutinize the propriety of their decision? To answer these questions, we will examine how two different legal systems – Halakhah and American law – approach the application of the business judgment rule in the profit and not-for-profit corporate world.

The final component of my discussion of the vision of rabbinic authority is an attempt to solve a particularly vexing problem faced by the contemporary Jewish court in some cases of divorce – the problem of one spouse refusing to execute a get, a bill of Jewish divorce. Coercing a recalcitrant spouse to grant a get results in a get me’usah, a forced get, which is invalid. In this volume, I present a viable halakhic solution to this problem in an expanded version of an article that originally appeared in the Jewish Law Annual (vol. 18), entitled, "Recovery for Infliction of Emotional Distress: Toward Relief for the Agunah." Our contribution is an attempt to invoke the halakhot of nezikin (monetary damages for injury caused) to reduce the problem of chained spouses in our community.

The reality of rabbinic authority presented in this volume deals with one type of that authority – the Jewish court, or beit din. As members of our covenant-faith community, we are obligated to resolve our differences in a beit din rather than resorting to litigation in civil court.² The parties who appear before a beit din sign a shtar borerut (arbitration agreement) that empowers the panel of dayanim to resolve the matter in contention according to the norms of Halakhah.³ Assuming the beit din process and its decision comply with the rules of secular arbitration law, the judgment will be enforceable in a competent civil jurisdiction in the United States.⁴

Interestingly, as central as the beit din system is in vision and reality, it is an institution whose workings and contributions to the path of Halakhah are largely unknown to most segments of the Jewish community. One of the primary reasons for unfamiliarity with the beit din can be traced back to a Mishnaic ruling:

Upon finishing their deliberations, they would bring the litigants back to the courtroom, and the senior member of the panel would state: Mr. X, you are acquitted, and Mr. X, you are liable.⁵

A review of relevant passages in the Talmud and rulings throughout the ages and until today demonstrates that Jewish courts generally took this Mishnaic ruling to heart, limiting their decisions to identifying the innocent and responsible parties, but not offering much in the way of reasoning.⁶ However, prior to a beit din’s psak din (final decision), a litigant may request that the panel provide a reasoned opinion if he is concerned that one or more of the judges are ignorant of a relevant halakhah or that they are biased in some way.⁷ According to some authorities, this is true not only of a standing beit din that requires litigants to appear before them regarding a contentious matter, but also when the beit din is an ad hoc panel, known as zabla ("zeh borer lo ehad – one chooses one").⁸

Maharah Or Zarua and Havot Ya’ir are of the opinion that each and every dayan should provide the grounds for his decision.⁹ In our day especially, many litigants question a dayan’s credibility, halakhic expertise, and/or business acumen; therefore, if at all possible, a reasoned opinion should be forthcoming.¹⁰

Due to the fact that halakhic court procedure does not mandate the issuance of a reasoned opinion, however, contemporary dayanim have generally refrained from submitting reasoned judgments. Nevertheless, certain dayanim who sit on the Beth Din of America in New York City and others who serve in the Israeli beit din networks under the aegis of Israel’s Chief Rabbinate and Eretz Hemdah-Gazit have done so.

During the last thirteen years, I have served as a dayan on the Beth Din of America and appeared on various zabla panels as well as a single arbitrator for the Hassidic, Modern Orthodox, Sephardic, and yeshiva communities in the New York-New Jersey metropolitan area. In numerous instances, I have rendered reasoned opinions in commercial matters and domestic relations. Among other matters, these decisions touch on issues of employment termination and severance awards, partnership dissolution, the validity of minhag ha-soherim (commercial practice), civil law, contractual agreements and preliminary agreements, the interpretation of contracts, the principle of indemnity in insurance law, recovery of economic loss of funds, consequential damages, lease, construction, and loan agreements, self-dealing in non-profit organizations, and copyright infringement. In addressing family matters, I have dealt with the grounds for issuing a divorce judgment, dividing up marital assets upon divorce, spousal support, child support and placement, filial obligations to one’s parents, and yerushah (inheritance) issues, such as guidelines for drafting a halakhic will and the validity of a civil will and a trust agreement.

The cases chosen for this volume cover the range of subjects characteristic of all modern legal systems – dinei mamonot (civil matters), public and administrative law, family law, and philosophy of law. Given that Halakhah is a religious legal system, the impact of issur ve-heter (ritual law) upon the monetary issues under investigation is equally dealt with in our judgments.

In this volume, I have included ten presentations inspired by reasoned opinions handed down as a member of a beit din panel. Two of these, dealing with drafting a halakhic will and labor relations, are expanded versions of my decisions that have recently appeared in the journal Hakirah (vols. 10 and 12). In each presentation, I offer a rendition of the facts of the case, followed by the claims of the Tove’a (plaintiff), the reply of the Nitva (defendant), and any counterclaims. Subsequently, there is a discussion of the halakhic issues emerging from the parties’ respective claims and counterclaims, followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed and/or deleted.

It is my hope that this collection will educate our community to the parameters and scope of rabbinic authority in general and the institution of the beit din in particular.

My appreciation to the publisher of Urim Publications, Tzvi Mauer. I offer my best wishes that the passion and sense of mission he brings to his calling to disseminate Torah scholarship will continue to be crowned with great success.

My thanks is given to Michal Alatin and Batsheva Pomerantz of Urim Publications for their expertise and technical skill in preparing my book for publication.

A. Yehuda (Ronnie) Warburg

20 Tevet 5773

January 2, 2013

NOTES

1. On Liberty, (NY: 1956) chap. 1, para. 9.

2. Midrash Tanhuma, Mishpatim, piska 6; Gittin 88b; SA, HM 26:1–3.

3. See Rema, Hoshen Mishpat (HM) 12:7; Sma, HM 12:18.

4. See Uniform Arbitration Act, sec. 1. A dayan is responsible not only to render a judgment in accordance with Halakhah, but equally to ensure that the decision will be enforceable in civil court; see Hiddushei ha-Ritva, Mo’ed Katan 14b; Teshuvot ha-Rashba 1:18; Perush ha-Gra, Mishlei 31:9; Teshuvot Hatam Sofer, HM 177.

5. Sanhedrin 3:7.

6. Bava Metzia 84b; Shavuot 30b; Sanhedrin 6b; Shulhan Aruch (SA), HM 19:1.

7. Tur, HM 14; SA and Rema, HM 14:1, 4; Sma, HM 14:25; SA, HM 12:2; Teshuvot Sha’ar Yehoshua 1–2. Cf. Teshuvot Hatam Sofer, HM 12.

8. In the absence of a standing beit din or when one or more of the litigants do not want to appear in front of a standing beit din, each party may choose one dayan, and the two dayanim (arbitrators) choose a third; see SA, HM 13:1–2.

9. Maharah Or Zarua 13; Teshuvot Havot Ya’ir 165.

10. R. Tzvi Yehuda ben Ya’akov, "The Obligation of Giving a Reasoned Psak Din" [Hebrew], 19 Tehumin (5759), 223, 234.

IRabbinic Authority 

The Vision

Chapter 1

Towards Defining the Concept of Rabbinic Authority: A Contemporary Analysis

Mary Ann Glendon, a law professor at Harvard University and an astute observer of the interaction of law and social mores, observes:

The American rights dialect is distinguished by not only what we say and how we say it, but also what we leave unsaid. Each day’s newspapers, radio broadcasts and television programs attest to our tendency to speak of whatever is most important to us in terms of rights, and to our predilection for overstating the absoluteness of the rights we claim. Our habitual silences concerning responsibilities are more apt to remain unnoticed.¹

Whereas American society places an emphasis on rugged individualism and individual rights,² from a halakhic perspective, the mission of man – and equally of the Jew – focuses upon duty, compliance with a divine norm.³ Thus, R. Dr. Joseph Soloveitchik writes:

Natural man, moving straight forwards, comes suddenly to a stop, turns around, and casts as an outsider, a contemplative gaze upon his environment . . . He discovers an awesome and mysterious domain of things and events which is independent of and disobedient to him, an objective order limiting the exercise of his power . . . In the wake of this discovery, he discovers himself. Once self-discovery is accomplished, and a . . . I-awareness of an existence which is limited and opposed by a non-I outside emerges, something new is born – namely the divine norm . . . And the Lord God commanded the man . . . Man attains his unique identity when, after having been enlightened by God that he is not only a committed but also a free person, endowed with power to implement his commitment, he grasps the incommensurability of what he is and what he is destined to be.⁴

Thus, in contrast to the habitual silence in American society regarding legislating morality except to avoid the infliction of harm, a committed Jew must develop a more expansive notion of obligation vis-à-vis God and his fellow-man based upon fulfillment of divine commandments.

Furthermore, being a liberal-democratic society, legal authority in American life has been seen as appropriate for the public square, but limited in the private realm. An American inquires of a lawyer about his rights and their infringement. A committed Jew, by contrast, must seek to understand his obligations, which extend well beyond negative rights, his right of protection against individual and governmental intrusion.

How does one discern one’s halakhic obligations? In the words of the Torah itself, What does the Lord thy God ask of you?⁵ Most committed Jews, even well-educated ones, will not be able to answer this question on their own. Rather, we are told, Establish a rabbi for yourself and avoid doubt.⁶ Who is the rabbi in question, and what are the parameters of his authority? In this essay, we will focus on the varying approaches in which the halakhic tradition, in particular post-Talmudic sources, has grappled with these questions.

This essay seeks to map and depict the main functions and normative meanings that encompass the concept of rabbinic authority. Other than a handful of dogmatic and historical descriptions, there have been very few attempts to focus upon the post-Talmudic sources that address this topic.⁷ Although some of the sources that will be analyzed have historical implications, we are concerned in developing a conceptual framework based upon the sources that have been assigned normative value by the halakhic system.

1. The Parameters of "Lo Tasur"

The Torah states that a member of the Jewish community who has a doubt regarding a point of Halakhah is obligated to seek halakhic counsel and abide by the ruling of the court:

If there is a matter too hard from you in judgment, between blood and blood, between ruling and ruling . . . subjects of controversy within your gates; then you shall arise and go up to the place that God will choose. And you shall come to the . . . judge who shall be in those days, and inquire, and they shall render the words of the judgment. And you shall follow according to the sentence which they declare to you from that place which God shall choose and you shall observe to do according to what they instruct you. According to the law which they shall instruct you and according to the judgment which they shall tell you, shall you do. You shall not deviate (lo tasur) from the word they shall tell you, neither to the right nor to the left.⁸

The Talmud explains that the place that God will choose refers to the Great Sanhedrin, which met in the lishkat ha-gazit on the Temple Mount in Jerusalem.⁹ Accordingly, the commandment of "lo tasur, you shall not deviate from the word they shall tell you," is limited to the judgments and interpretations of Halakhah as rendered by the Sanhedrin ha-Gadol. Many decisors – among them Rambam,¹⁰ Ramban,¹¹ Rivash,¹² R. Yehuda ha-Levi,¹³ and Ran¹⁴ – thus conclude that the prohibition does not apply to decisions handed down by lower courts or by independent rabbinic authorities.¹⁵

The Sefer ha-Hinukh, however, suggests otherwise:

As for the obligation given to us to obey the words of our ancient Sages, our great authorities in the wisdom of the Torah, and our judges in our generation, it is in effect everywhere, at every time.¹⁶

Similarly, Rashba writes:

We must listen to one of the Rishonim [early rabbinic authorities], provided that he is a scholar that one can rely upon . . . We must listen to the scholars of every era, as it is written: And to the judge that will be in those days, even if they tell you that right is left . . .¹⁷

According to Sefer ha-Hinukh and Rashba, the positive commandment of adhering to what they teach and rule and the prohibition of "lo tasur" apply to all rabbinic leaders in every generation, not only to the Sanhedrin ha-Gadol.

Ran concurs with the opinion that there is an obligation to adhere to the halakhic decisions of the arbiter in every community and in every generation, but he invokes a different source for the requirement:

How do we know that we are obligated to comply with the decisions of the scholars in every generation? The answer is that the Biblical verse states, Follow the majority. This is a general warning to follow Torah judgments [based upon the consensus of the majority of scholars].¹⁸

The common denominator of both approaches is the requirement for an individual to choose a rabbinic authority and adhere to his rulings. While some authorities maintain that there is an obligation that mandates compliance with decisions of a rabbinic authority in every generation, others maintain that there is no religious duty to comply with a decisor’s ruling unless he was a member of the Sanhedrin ha-Gadol. According to the latter view, once an authority has been accepted, his decisions become binding, but a violation thereof does not entail contravention of a biblical imperative.

Translating this controversy into the conceptual scheme of authority elucidated by Richard T. De George is quite instructive.¹⁹ George distinguishes between two types of authority – imperative/executive and epistemic. Whereas an imperative authority has the right or power to act and expect compliance to his orders, an epistemic authority is an authority in a field of knowledge, but he does not possess any right to command:

A person is an epistemic authority if he is considered an authority by another or by others with respect to some field or area of knowledge. Thus, X is a . . . epistemic authority if there is some Y who considers X an authority for Y in some realm . . . For Y to consider X a . . . epistemic authority for Y means that at least under certain conditions and at least to some extent, Y is willing to believe what X says in R . . .

Imperative authority involves the right or the power of some bearer . . . to command someone who is subject to authority to act or to forbear from acting in certain ways.²⁰

Essentially, an imperative authority is in-authority, while an epistemic authority is simply an-authority. The halakhic positions regarding the nature of rabbinic authority can be described accordingly.

The view that limits the purview of "lo tasur" to the judgments of the Sanhedrin ha-Gadol views all other rabbinic authorities as examples of epistemic authority. It is only upon the questioner’s acceptance of the authority’s spiritual hegemony that his status as an-authority is transformed into one of in-authority.²¹ Thus, R. Moshe Soloveitchik maintains that a decisor who does not have the status of being ordained (semikhah) is

essentially a reference guide, providing reliable information about what the tradition and its sources, properly understood and interpreted, state; but it is they, rather than he, that bind authoritatively.²²

Those who either extend the purview of "lo tasur" or invoke other obligations to accept rabbinic decisions throughout the generations view these rulings as an exercise of imperative authority. Upon acceptance of their authority, their rulings become binding upon the inquirer.²³

2. The Mara De-Atra

Rambam describes the extent of rabbinic authority in the following fashion:

If a court established in any country after the time of the Talmud made decrees and ordinances or introduced customs for those residing in its particular country or for residents of other countries, its enactments did not gain the acceptance of all Israel because of the remoteness of the Jewish settlements and the difficulties of travel. And as the court of any particular country consisted of individuals [whose authority was not universally recognized], while the Supreme Court of seventy-one members had, several years before the compilation of the Talmud, ceased to exist, no compulsion is exercised on those living in one country to observe the customs of another country; nor is any court directed to issue a decree that has been issued by another court in the same country. So too, if one of the Ge’onim taught that a certain way of judgment was correct, and it became clear to a court at a later date that this was not in accordance with the view of the Gemara, the earlier authority is not necessarily followed, but the view is adopted which seems more reasonable, whether it be that of an earlier or of a later authority. The foregoing observations refer to rules, decrees, ordinances, and customs that originated after the Talmud had been compiled. But whatever is already mentioned in the Babylonian Talmud is binding on all Israel.²⁴

Although Rambam writes specifically about the judicial independence of the Jewish court, R. Joseph Karo notes that his conclusions equally apply to all authorities who are interpreters and arbiters of Halakhah – both the courts and independent arbiters have accepted to be subservient to the rulings found in the Mishnah and Talmud.²⁵

The authority of the Talmud Bavli stems from its acceptance by the Jewish community, as its Sages comprised the total or the majority of the scholars of Israel, and the chain of tradition from them to Moses was never broken. Rambam is quick to note that embarking upon the sea of the Talmud and delving into its difficult formulations requires education and skills. Consequently, it is no wonder that after its compilation, divergent interpretations of this corpus were to be found among the dayanim and decisors throughout the various communities.

Decentralization of the Jewish community coupled with an acute need to resolve halakhic indeterminacies were factors in the emergence and proliferation of rabbinic authorities who made decisions for particular Jewish communities. Such rabbinic personalities were referred to as the "mara de-atra, literally, the master of the place." Upon acceptance of his authority, his rulings are authoritatively binding upon the members of his community. Briefly sketching this role, Professor Aharon Kirschenbaum observes:

Traces of such rabbinic authority . . . for the inhabitants of a limited geographic area may be found among the Tanna’im. Thus, although his colleagues limited the suspension of Sabbath restrictions to the circumcision itself, in the place of R. Eliezer they used to cut wood [on the Sabbath] to make charcoal in order to forge an iron instrument. R. Eliezer held that all necessary requisites for the circumcision . . . superseded the Sabbath prohibition. Hence, even the charcoal necessary for the forging of the circumcision knife was permitted to be prepared. Although R. Eliezer was overruled by the other Tanna’im, his position was accepted as valid in his place.

Similarly, R. Jose the Galilean’s opinion that the cooking of the flesh of fowl in milk was totally permitted was rejected by his colleagues . . . Nevertheless, the Talmud states that, in the place of R. Jose the Galilean, they used to eat fowl’s flesh cooked in milk . . .

On the basis of these Tannaitic precedents, the Amora’im ruled that the opinion of the mara de-atra was binding on the atra even where it was in opposition to the normative Halakhah. For example, there is a well-known dispute in the matter of muktzah, wherein R. Simeon rejected the rules of muktzah as we know them. Although R. Hamnuna agreed with R. Simeon, he excommunicated a certain disciple who gave a practical decision in accordance with R. Simeon’s position. He did so because the disciple had made that decision in an area that was within the jurisdiction of Rav. Since Rav opposed R. Simeon’s position, the disciple should have acted accordingly. Thus, the Talmud defends the excommunication declared by R. Hamnuna even though the latter agreed with the substance of the disciple’s decision. The respect due Rav, the mara de-atra, was overriding. ²⁶

Even if a mara de-atra follows a minority view – even if he permits something that according to others is biblically prohibited – his ruling must be followed by the community.²⁷

At first glance, this seems to conflict with the most basic principle of halakhic decision-making, "aharei rabbim le-hatot," the rule to follow the majority.²⁸ However, as various decisors note, the application of that rule is limited to resolving issues within the confines of a moshav beit din, judicial proceedings.²⁹ Since a mara de-atra’s ruling is a resolution of a controversy among decisors, outside of a moshav beit din, the command to follow the majority view is inapplicable, and his position, although reflecting a minority view, becomes binding upon the members of the community, whether it reflects a stringent or lenient opinion.³⁰

Did this model of rabbinic authority persist beyond the Talmudic period? R. Joseph b. David ibn Lev (Maharival), a sixteenth century posek (decisor) from Salonika, writes:

It was only during those days [the Mishnaic and Talmudic periods], when in every city there was a rabbi who would instruct them . . . that in every city they were obligated to honor their teachers. However, in these times, in all these matters our decisors and our rabbinic scholars from whose waters we drink are our rabbis . . .³¹

Whereas the mara de-atra was once the binding authority in all matters of Halakhah, we are now privileged to have many rabbis, and we must thus refrain from adopting one binding authority. Should there be a difference of opinion amongst the rabbis, the typical decision-making rules, such as following the majority, must facilitate the resolution of the matter. A community is authorized to appoint a mara de-atra only to resolve monetary issues, regarding which one may make stipulations contrary to what is written in the Torah.³²

Maharival’s position reflects a minority view, however; the role of the mara de-atra persisted well after the compilation of the Talmud.³³ R. Dr. Yitzhak Z. Kahana lists numerous communities throughout medieval and modern Jewish history who chose to follow the rulings of various authorities, the mara de-atras of these communities.³⁴ As in Mishnaic and Talmudic times, communal acceptance was the grounds for legitimating the binding authority of the mara de-atra.³⁵

Thus, a communal enactment evidently promulgated in fourteenth century Spain addressing a dispute between a husband and wife states:

The community in which she lives . . . agreed and enacted that in all their laws and legal controversies, they will follow the books of Rambam, of blessed memory, in regard to everything that is written in them concerning matters of ritual law, monetary matters, marriage . . . and divorce.³⁶

The communal enactment obligated members of the community to follow Rambam’s rulings in certain designated areas of Halakhah. Being selective regarding which matters are under the purview of a mara de-atra is thus permissible.³⁷

Five hundred years later, R. Samson Raphael Hirsch responded in uncompromising terms to a guest rabbi who directed R. Hirsch’s congregation to rebel against their mara de-atra’s teachings:

The members of the Jewish community, who accepted a scholar as a rabbi and spiritual guide, have obligated themselves to heed his instructions regarding all communal matters dealing with the individual as well as regarding the community, in particular, given that this has been established in the communal enactments that he is the exclusive decisor to resolve communal matters . . .

But his honor, who is a foreigner to our city, did not refrain from interfering with my communal matters, having been appointed to be the rabbi and chief justice [av beit din], and he refused to abstain from persuading members of my community to rebel against my ruling, telling them that my ruling is not a ruling, and he did not refrain from publicizing his view in a newspaper . . .³⁸

Clearly, for hundreds of years, various communities were guided by their respective mara de-atras.

In effect, community consensus regarding the appointment of a mara de-atra resulted in a spatial division of authority. In many instances, there could be various communities in the same locale practicing divergent halakhic behaviors. At first glance, this diffusion of authority among two communities in the same town seems to violate the injunction of "lo titgodedu," which the Sages interpreted to refer to a prohibition against creating factions in the same community.³⁹ It is possible that just as two different courts in the same locale may issue contradictory decisions resulting in divergent behaviors in the same place,⁴⁰ two communities in the same town are entitled to abide by different mara de-atras who may issue different rulings;⁴¹ neither mara de-atra has jurisdiction over the adherents of the other.⁴² Alternatively, it is possible that the prohibition against factionalism refers to teaching others to follow one’s practices when one authority advocates one position and the other demurs. Since two communities living side by side are simply practicing rather than exhorting others to follow their behavior, the prohibition is inapplicable.⁴³

The institutional legitimatization of halakhic pluralism poses great challenges in the modern State of Israel. Given the differing traditions of the Ashkenazic and Sephardic communities, how is halakhic practice to be structured for the citizenry? Ought the goal be to establish uniformity of practice or to promote communal diversity? Is either goal attainable at present? While some have advocated the need to maintain halakhic diversity, others argue that the mara de-atra(s) of the Land of Israel ought to be Rambam and/or R. Karo.⁴⁴

What is the scope of the mara de-atra’s authority? Which members of the community create it? Is every member of the community duty bound to ask their questions of the mara de-atra? Is an individual who joins the community subsequent to the communal acceptance of the mara de-atra obligated to ask him his questions and abide by his judgments? Some argue that given that the election of the mara de-atra was executed via a communal enactment, the norms of takanot ha-kahal, communal enactments, are applicable.⁴⁵ Because such enactments are passed upon majority rule of its members or its representatives, even the minority must comply,⁴⁶ and the legislation binds even individuals who have yet to permanently reside in the locale.⁴⁷ The mara de-atra is in-authority for all these individuals.⁴⁸

Alternatively, the mara de-atra is granted authority only over those who accept him upon themselves. R. Shaul Yisraeli observed in 1966:

The majority of the public in Israel has accepted the Chief Rabbinate as its rabbi . . . It follows that the Chief Rabbinate enjoys the status of the local master throughout Israel and its local rabbis act only as its agents.⁴⁹

R. Yisraeli concludes that segments of the Israeli populace who have not accepted this authority are free to follow their own decisors. If an individual chooses to accept the mara de-atra’s authority, he is bound by his teachings; should he decline to do so, he may choose another decisor.

Accordingly, those who disagreed with the election of the mara de-atra or moved to the locale only after his installment may freely choose to follow a different recognized authority. However, the dissenting individual is no different than any visitor who arrives in the town, who must refrain from any public behavior that contradicts specific rulings of the mara de-atra.⁵⁰

According to both schools of thought, the binding nature of a mara de-atra’s rulings is based upon communal acceptance, either actualized through the adoption of a communal enactment or the execution of a "ketav rabbanut," a rabbinic contract.⁵¹ Consequently, an individual who agrees and subsequently reneges on his commitment is viewed as someone who makes an oath not to be bound by a communal enactment, a meaningless oath that is therefore in vain and in violation of a biblical commandment.⁵² Moreover, according to some authorities, he has violated the biblical prohibition of "lo tasur."⁵³

In short, an-authority is transformed by the community into a mara de-atra who is in-authority. His rulings are therefore biblically binding in all public matters, such as marriage, divorce, liturgical practice, kashrut standards, and eruvin, as well as personal matters, such as monetary obligations, interest, theft, and Shabbat and Yom Tov regulations.

Furthermore, a mara de-atra’s decision that is grounded in a minority view has been characterized as akin to being of biblical status and "like Halakhah le-Moshe mi-Sinai," traditions from Sinai regarding which there is unanimity.⁵⁴

Given the stature assigned to the mara de-atra, as we will demonstrate in the latter portion of our presentation, he must exhibit piety (yirat Shamayim), possess a proficiency in Talmudic and post-Talmudic scholarship, and have honed skills in analogical reasoning and rendering decisions.⁵⁵ Although a mara de-atra has great authority over his constituents, it is not unlimited. If it is clear that the mara de-atra is in error – if he made a "ta’ut be-devar mishnah" (a mistake in black-letter Halakhah),⁵⁶ or permitted the forbidden,⁵⁷ one is not obligated to follow his directive. R. Zerahiah ha-Levi (Ba’al ha-Ma’or) states that if the arbiter awarded an item to one party in a dispute and it was later revealed that the decision was in error, the decision is reversible and the other party must be reimbursed for his loss:

Since it was an error in a matter of a mishnah, he [the litigant] should have been aware of the error and should not have relied upon the arbiter and executed the decision. Rather, he ought to have inquired and uncovered the error. This is as clear as "a clear mishnah." Hence, the party was negligent.⁵⁸

In other words, even if one receives a psak from one’s rabbi, it is the individual’s responsibility to understand the reasons for the ruling. If he fails to do so and therefore follows an incorrect ruling, the halakhic system labels him a "poshei’a, a negligent person. Emunat hakhamim," faith in the wise, does not entail, at least in this context, blind obedience.

3. A Deceased Mara De-Atra

In an often-cited and widely accepted teshuvah (responsum), R. Shlomo ben Aderet (Rashba) succinctly describes the role of the mara de-atra:

If there is one rabbi in their location who has taught them, they should follow his opinion . . . The same is true of those who have customarily acted according to one of the great authorities, as in a place in which they invariably follow the rulings of R. Alfasi or Rambam, for they have adopted these great decisors as their own rabbi. ⁵⁹

According to Rashba, the mara de-atra of a community may already be deceased, as Rif and Rambam were when he penned this teshuvah. A community may either choose to accept the jurisdiction of a contemporary authority or rely on an earlier mara de-atra for rendering decisions. Even though these rabbinic authorities may never have lived in this place and are no longer living, the community practices the custom ("keivan she-nahagu") to abide by their decisions.⁶⁰

Concurring with Rashba’s position, R. Nissim ben Yosef Mizrahi (eighteenth century Turkey) states:

Even though Alfasi and Rambam were not the mara de-atra in that place, since in all actions the community follows their words, Alfasi and Rambam are considered their rabbis and mara de-atras, even though their net was not spread over the place.⁶¹

Obviously, a community’s choice to accept a mara de-atra who is no longer living presents formidable challenges. Since many members of the community are likely neither knowledgeable nor conversant regarding their mara de-atra’s rulings, a scholar would have to be elected to transmit those teachings. Thus, in one of the dozens of communities that have accepted Rambam’s authority in halakhic matters, the scholar would require broad knowledge of Rambam’s Mishnah Torah, commentary on the Mishnah, and responsa. In order to fully comprehend Rambam’s rulings, the scholar would also of necessity need to be able to unearth Rambam’s Talmudic and Geonic sources. Moreover, since the community would be posed from time to time with questions that were never addressed by Rambam, the scholar would also need the erudition to deliver pesikah that would either optimally "follow in Rambam’s footsteps" or be rooted in the teachings of others. Operating within the context of abiding by the judgments of a deceased rabbi, of course, is no small feat.

What is the justification for relying on an authority who is no longer alive to serve as a community’s mara de-atra? In the Tannaitic and Talmudic periods, dispute resolution demanded the expertise of a rav (rabbi), and his disciples were proscribed from issuing decisions in his presence. In post-Talmudic times, however, the norms governing the teacher-student relationship were abrogated. As R. Moshe of Evreux, a twelfth century Tosafist, explains:

From the time the Jewish people was exiled from its land, when our Temple was destroyed . . . the law that reverence for a teacher must be like reverence for God no longer applies, and all the rules regarding the relationship between disciple and master are abrogated. This is because the books, the treatises, and the commentaries are our masters, and everything depends on intelligence and logic.⁶²

While this change led to attenuated or nonexistent personal ties between teachers and students, reliance upon the books rather than scribes ("mi-pi seforim ve-lo mi-pi soferim") expanded the sources for rabbinic decision-making. Many communities chose to abide by the decisions of rabbinic arbiters of yesteryear, such as Rif and Rambam – "mi-pi seforim."⁶³

Despite the fact that Rashba accorded the status of mara de-atra to authorities who are no longer alive,