Correction: Previously, I had written that the Ohr HaChaim was a 15th Century commentator. He is a seventeenth century commentator. (I subtracted instead of added to the 1600s.)

Let’s examine some of the more salient points of the Ramban we mentioned in the last post here.

  1. The Ramban claims that the verse in Deuteronomy 17:11 about not straying from the words of the Sages, implies that the Torah was given with the understanding that however the Sages interpret the Torah becomes the proper interpretation. This was because G-d was aware that there would be differences of understanding and was aware that this would cause many disputes – and so he gave us a means of resolving them.
  2. This includes relying on the Sages to do things you consider to be forbidden, even if you are a great scholar.
  3. The case where one can err in listening to them is if one is a scholar, and listens to them before raising his objections. After the discuss the objection if he is unable to change the consensus of the Sages, he must accept their ruling even if he remains unconvinced and even to be lenient on something he believes to be forbidden.
  4. G-d protects the Sages of Israel from error.

One might wonder, given the conditional nature of the interpretation of the Torah, why a clause protecting them from error would be necessary. If whatever they say becomes the proper meaning, unless they change their minds, they sort of can’t be wrong.

By contrast, the Ohr HaChaim never claims that the Torah was given with any conditional meaning. He seemingly accepts that there was some sort of absolute meaning of the Torah as intended by G-d, but merely asks whether it is incumbent on the scholar to accept the interpretation of the Sages as being the correct one.

While the Ohr HaChaim seems to imply that a scholar should abstain from things he believes to be forbidden even after a discussion with the Sages and their arriving at a consensus, the Ramban disagrees.1

Some Problems With The Ramban

One problem with the Ramban, is his proof from Rosh HaShana 25a where Rebbe Yehoshua came before Rabban Gamliel with his walking stick and wallet what he believed to be Yom Kippur. The Mishna refers to a case where one court didn’t accept the testimony of a pair of witnesses, and Rabban Gamliel’s court did. Rebbe Yehoshua raised an objection – and then Rabban Gamliel decreed that he must come before him on the Yom Kippur that comes out according to his calculation “with his walking stick and wallet”. Eventually the Mishna says that Rebbe Akiva convinced him to go. This is how the talmud describes the conversation between Rabbi Akiva and Rebbe Yehoshua:

הלך ר”ע (ומצאו) מיצר כו’: איבעיא להו מי מיצר ר”ע מיצר או רבי יהושע מיצר ת”ש דתניא הלך ר”ע ומצאו לרבי יהושע כשהוא מיצר אמר לו [רבי] מפני מה אתה מיצר אמר לו (רבי) עקיבא ראוי לו שיפול למטה י”ב חדש ואל יגזור עליו גזירה זו א”ל רבי תרשיני לומר לפניך דבר אחד שלמדתני אמר לו אמור אמר לו הרי הוא אומר אתם אתם אתם ג’ פעמים אתם אפילו שוגגין אתם אפילו מזידין אתם אפילו מוטעין בלשון הזה אמר לו עקיבא נחמתני נחמתני

תלמוד בבלי, ראש השנה כ”ה עמוד א’

The mishna taught that Rabbi Akiva went and found him distressed that the head of the Great Sanhedrin was forcing him to desecrate the day that he maintained was Yom Kippur. A dilemma was raised before the Sages: Who was distressed? Was Rabbi Akiva distressed or was Rabbi Yehoshua distressed? The Gemara answers: Come and hear, as it is taught in a baraitaRabbi Akiva went and found Rabbi Yehoshua in a state of distress, and he said to him: My teacher, for what reason are you distressed? Rabbi Yehoshua said to him: Rabbi Akiva, it is fitting for one to fall sick in bed for twelve months, rather than to have this decree issued against him that he should have to desecrate Yom Kippur.

Rabbi Akiva said to him: My teacher, allow me to say before you one matter that you yourself once taught me. He said to him: Speak. He said to him: It states with respect to the Festivals: “The appointed seasons of the Lord, which you shall proclaim them [otam] to be sacred convocations (Leviticus 23:2). And it is written: “These are the appointed seasons of the Lord, sacred convocations; you shall proclaim them [otam] in their season” (Leviticus 23:4). And it is written: “These are the appointed seasons of the Lord; you shall proclaim them [otam] to be sacred convocations” (Leviticus 23:37). Three times the verses use the term: Them [otam], which can also be read as you [atem], in plural.

This comes to teach: You [atem] are authorized to determine the date of the new month, even if you unwittingly establish the New Moon on the wrong day; you, even if you do so intentionally; you, even if you are misled by false witnesses. In all cases, once the court establishes the day as the New Moon, it is sanctified, and God grants His consent. After hearing this, Rabbi Yehoshua said to him in these words: Akiva, you have consoled me; you have consoled me.

Rosh HaShana 25a (Translation Sefaria)

In order to establish that the court’s determination of the new moon is binding even if made in err – Rebbe Akiva brings a verse specific to the determination of the new moon. This problem is noted in the מהר”ץ חיות in Rosh HaShana.

This would seemingly not just be a lack of proof, but a serious problem for the Ramban, because according to him Rebbe Akiva should’ve brought the the verse from Deuteronomy to prove it’s point.

Unfortunately, the Ramban does not comment on this passage in his commentary on the Talmud. I can not answer why the Ramban thought they should be interpreted globally, but it seems clear that once you do interpret it that way – the reasoning behind Rebbe Akiva citing that verse and not the verse in Deuteronomy is because the verse here, as explained by Rebbe Akiva, is much broader reaching than the one in Deuteronomy.

The verse in Deuteronomy is referring to an actual doubt in interpreting the law. The case here is about accepting witnesses testimony and is based on an understanding of astronomy. This is a question of whether witnesses are demonstrably lying by claiming something happened which is physically impossible. Rebbe Akiva’s verse even includes this and more:

This comes to teach: You [atem] are authorized to determine the date of the new month, even if you unwittingly establish the New Moon on the wrong day; you, even if you do so intentionally; you, even if you are misled by false witnesses.

Of course, all this refers to a Sage, or at least a scholar who is either learned or is trained in Torah reasoning. What about the general populace? Is there any case where even they should not rely on the Sage’s ruling?

אמר רב יהודה אמר שמואל אין ב”ד חייבין עד שיורו בדבר שאין הצדוקין מודין בו אבל בדבר שהצדוקין מודין בו פטורין מאי טעמא זיל קרי בי רב הוא

הוריות ד’ עמוד א’

Rav Yehuda says that Shmuel says: A court is not liable to bring an offering unless it issues an erroneous ruling concerning a matter with which the Sadducees do not agree. The Sadducees do not accept the Oral Torah, and they interpret the Written Torah literally. The court is liable only for a matter that is not explicitly written in the Torah or that does not clearly stem from that which is written in the Torah. But with regard to an erroneous ruling concerning a matter with which the Sadducees agree, the judges are exempt. What is the reasoning for this exemption? It is a topic that you could go learn in a children’s school. Since the matter the judges ruled upon is so obvious, their ruling simply exhibits ignorance, and is not deemed a ruling.

Horayos 4a (Translation:

I once posted about this topic here but didn’t have time to go into it. I simply raised some issues. Now we will go into more depth.

Before going further we must clarify some things that will be obvious for some but unknown to others. The Tractate of Horayos deals with a specific sacrifice that the court brings because of an erroneous ruling. While the prerogative to heed the words of the Sages presumably applies in all cases, the sacrifice comes in place of a sin offering and thus is only brought in cases where the punishment for the sin done intentionally in kares and the if done unintentionally a sin offering is brought.

Now, the Talmud asserts that in a case where court rules permissible something which “the Sadducees admit” that it is forbidden, they are not liable to bring a sin offering. The Talmud give the reason, that it is obviously wrong. The Sadducees interpret the Written Torah literally – so the Sages must me permitting something that is explicitly and literally forbidden in the Written Torah. Apparently, even someone with a basic primary school education should have realized the mistake. But who are we claiming should have realized the error in this case?

Rashi says:

זיל קרי בי רב הוא – דכיון דאפשר לו ללמוד ולידע לא הוי שוגג מעליא וקרוב למזיד הוי


Go learn in a children’s school – since he could have learnt and know and did not, it is not a true mistake and is close to an intentional sin

Rashi uses the singular pronoun (he) to describe who should have studied in a children’s school. In Rashi’s commentary, the guilt is placed on the individual for listening. Remember, we are not even talking about a scholar here, this refers to everyone. These people are not obligated to raise objections to the consensus of the Sages.

(By contrast, Rabbeinu Hannanel places the imperative to “go learn in children’s school” squarely on the Sages in the court. He says that such judges are not fit to instruct others and they are “close to intention” in their error because they should have learnt and didn’t. In my opinion, Rabbeinu Hannanel’s approach is simpler and more straight forward.)

This raises a question. According to Rashi, obviously there are some limitations to what you’re supposed to accept from the Sages. When do we say “even if they say you right is your left” and when do we say “go learn in children’s school”?

Also, what if a scholar had raised an objection to this ruling (that it is explicit in the Torah otherwise), and was over-ruled? Like Nachmanides – is this a case where he still should not heed the Sages?

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  1. I have made a decision to avoid any aggadic literature on this subject, but for those interested the Kli Yakar has an interesting approach – see Kli Yakar Deuteronomy 17:11

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