August 6, 2013
Shoftim: The High Court in Jerusalem
The Jurisdiction of Sanhedrin
What happens if the local court is unable to decide a case? In such situations the Torah gives ultimate authority to Sanhedrin, the high court of 71 elders in Jerusalem:
“If you are unable to reach a decision in a case…. Then you must set out and go up to the place that God will choose. You must approach the Levitical priest and the judge who will be at that time… and you must do as they tell you. You must keep the Torah as they interpret it for you and follow the laws that they legislate for you.” (Deut. 17:8-11)
In what areas did the high court have jurisdiction? Was it only in legal-Halachic matters, or also in matters of faith?
In other words: is there intellectual freedom in thought and beliefs, as long as we follow the codes of Halachic conduct? Or are there principles of faith that are incumbent upon all to accept?
The Clarity of the Torah of Eretz Yisrael
The Babylonian and Jerusalem Talmuds appear to disagree over this very point. The Babylonian Talmud in Sanhedrin 87a states that the cases brought to the high court were legal in nature. It explains that the term davar (‘matter’ or ‘case’) mentioned in the verse refers to a Halachic dispute. The Jerusalem Talmud, on the other hand, holds that davar also encompasses Aggadah or non-legal disputes. What is the crux of this disagreement?
In a 1908 letter to Rabbi Yitzhak Isaac Halevy, Rav Kook explained that this dispute reflects the essential difference between the Torah of Eretz Yisrael, as represented by the Jerusalem Talmud, and the Torah from outside the land of Israel, as represented by the Babylonian Talmud.
The different approaches of the two Talmuds originates in the limitation of prophecy to the land of Israel (see Mo’ed Katan 25a). The Torah of Eretz Yisrael benefits from a prophetic input, and this influences its style and essential nature.
Since the Torah of the land of Israel is rooted in prophetic knowledge and insight, elaborate discussions are superfluous. The scholars of Eretz Yisrael arrive at legal decisions through an inner insight into the underlying principles. This explains the terse style of the Jerusalem Talmud, where fine hints are often sufficient in order to determine the final Halachic decision.
The Babylonian Talmud, however, lacked this prophetic input. The Bablyonian scholars required intricate discussions to clarify the Halachah, using complex legal reasoning. Thus, unlike the expression commonly found in the Jerusalem Talmud, “Ta chazi” — “Come and see” — the Babylonian Talmud uses the expression “Ta shema” – “Come and hear.” “Ta shema” indicates a greater distance from the source, analogous to the difference between the clarity of sight as opposed to that which is only heard.
Halachah and Aggadah
But the difference between the two Talmuds is not limited to style. The author of Chovat HaLevavot wrote in his introduction that matters of faith and belief, which are the foundations of Aggadic material, do not fall under the jurisdiction of the high court. This, he explained, is because these teachings are not a matter of received traditions, but rather the fruit of our intellectual efforts.
This position, however, is not universal. We find other opinions, such as that of Rav Hai Gaon, that also Aggadic teachings are binding.
The opinion of the Chovat HaLevavot is suitable to the Torah as it manifests itself outside the Land of Israel. There, without prophetic influence, beliefs and opinions are based solely on the powers of logic and reason. Since interpretation of Torah principles is a matter of intellectual effort, it is natural to distinguish between the detailed study of Halachah, which requires meticulous legal analysis, and the less rigorous study of Aggadah. For this reason the Babylonian Talmud distinguishes between Aggadah and Halachah, opining that the prohibition of “Lo Tasur” (to disobey the high court) only applies in legal matters.
In Eretz Yisrael, however, where Torah is rooted in prophetic influences, the legal and non-legal areas of Torah share a common basis. Beliefs, just as much as practical deeds, are grounded in received tradition and prophetic inspiration. Therefore the Jerusalem Talmud rules that the high court’s authority also extends to Aggadah.
The Kohen and the Judge
This distinction allows us to understand the Torah’s command, “You must approach the Levitical priest and the judge who will be at that time.” Why mention both the kohen and the judge?
These two officials represent two forms of Torah authority. The kohen represents the Torah that utilizes prophetic means in order to ascertain the Halachah. The kohen’s Torah flows from his position as a messenger of God: “From the kohen’s lips they will guard knowledge… because he is an angel of the God of Hosts” (Malachi 2:7). This is particularly true of the High Priest, who required Divine inspiration in order to consult with the Urim and Thummim (Yoma 73).
The judge, on the other hand, represents Torah adjudicated according to logic and legal reasoning. The verse mentions both the kohen and the judge in order to stress that both approaches are valid, both are binding. If the Torah had only mentioned the kohen, one might think that only Torah based on prophetic inspiration would retain this authority. And if the Torah had only mentioned the judge, one might have thought that there is no place for Divine inspiration in the Halachic process, as might be understood from the verse, “It (the Torah) is not in heaven” (Deut. 30:12, see Baba Metzia 59b).
The Future Unity of Aggadah and Halachah
It is natural to distinguish between the expansive study of Aggadah and the technical mindset required for intricate Halachic analysis. In the depths of the soul, however, there lies an inner aspiration to combine these two areas.
With the revelation of the light of redemption and increased greatness in the roots of souls, the divide between these two aspects of Torah will narrow. The esoteric part of Torah will become more revealed, and the revealed part of Torah will become more transcendent and closer to the mystical side. The Zohar expresses the special connection of the Torah of Eretz Yisrael to the Messianic Era by characterizing the Babylonian Talmud as the Temurah, the exchange or substitute, while the Jerusalem Talmud is the Geulah, the redemption itself (Zohar Chadash Ruth).
Igrot Hare’iyah volume 1, letter 103