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4--R*{*' Ri 328 Controversy and Dissent !J

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4--R*{*' Ri 328 Controversy and Dissent !J 4--r*{*' ri 328 Controversy and Dissent !J 3. This applies only to one who repudiates the oral law as a result of his reasoned opinion and conclusion, who walks light-mindedly in the stub- bornness of his heart, denying first the oral law, as did Zadok and Boethus i3 and all who went astray. But their children and grandchildren, who, mis- guided by their parents, were raised among the Karaites and trained in their views, are like a child taken captive by gentiles 1a and raised in their religion, whose status is that of an anoos [one who abjures the Jewish religion under duress], who, although he later learns that he is , Je*, meets Jews, observes them practice their religion, is nevertheless to be regarded as an anoos, since he was reared in the erroneous ways of his fathers. Thus it is with those who adhere to the practices of their Karaite parents. Therefore efforts should be made to bring them back in repentance, to draw them near by friendly rela- tions, so that they may return to the strength-giving source, i.e., the Torah. 4. The rebellious elder of whom the Bible speaks is one of the wise men of Israel who is at home in traditional lore, functions as judge, im- parts instruction in the Torah, as do all the wise men of Israel, but is in disagreement with the [High] Court with regard to a question of law, re- fuses to change his view, persists in differing with them, gives a practical ruling which runs counter to that given by them. The Torah condemns him to death, and if he confesses before his execution, he has a portion in the world to come. Though both he and the members of the [High Court] base their respective decisions either on reason or on tradition, the Torah pays re- gard to their view. Even if they are willing to forgo the honor due to them and let him go unpunishe,C, it is not within their competence to do so, "in order that controversies do not abound in Israel." 1s n .--u-" q#F'l- I a"mrarentary. Living Dangerously Accorditrg to the sources before us, as codified by Maimonides, once the guilt of a rebellious elder is established, the only question left for 13. Tbaditionally portrayed as the founders of the Sadducee sect. 14. YJS: "them"; amended according to the Mishneh Tbrah, Rome r48o. 15. Paraphrasing BT Sanhedrin 88b, the previous selection.YSr"strife may not increase in Israel." The Rebellious Elder 32g liates the oral law as a result of the high court is that ofpardon. Favoring the approach ofRabbi yoshiyah ks light-mindedly in the stub- over that of Ze'tra (see $ro), Maimonides rules that the defiant elder's high 13 % as did Zadok and Boethus court colleagues are powerless to forgive him even if they feel that he no nd grandchildren, who, mis- longer poses a threat. If the appropriate conditions of rebellion are met, the e Karaites and trained in their death penalty is compuisory. 1a and raised in their religion, But in the wake of such a trial, the court might wish to exer- rres the Jewish religion under cise its discretion in quite a different way, of which Maimonides makes no is a Jew, meets Jews, observes mention-and, seemingly, neither do the tannaitic and amoraic texts he was be regarded as an anoos, since working from. After finding an elder guilty of knowingly issuing an inde- ierS. Thus it is with those who pendent and defiant ruling, the court, sufiiciently perplexed by the elder's s. Therefore efforts should be arguments, might see fit to rethink its own position. And as a result, the court w them near by friendly rela- might decide not merely to forgive their rebellious colleague, but actually to giving source, i.e., the Torah. endorse his view. This possibility is not to be confused with cases in which ]ible speaks is one of the wise a suspect rebel succeeds in proving that the case brought against him was lore, functions as judge, im- misconstrued and that he had ruled on a matter to which no former ruling wise men of Israel, but is in or tradition in fact applied. In the hypothetical case I want to consider, all ;ard to a question of law, re- agree that the rebel's ruling had been issued in defiance of a known high with them, gives a practical court opinion. What happened was that in the course of his trial he managed :m. The Torah condemns him to convince the court that the ruling in question should be reconsidered. tion, he has a portion in the This possibility is not discussed in the texts before us, and to the )ers of the [High Court] base best of my knowledge it is nowhere raised in connecrion with the rebellious r tradition, the Torah pays re- elder. Had it been raised, the argument could, in principle, have gone either forgo the honor due to them way. The fact that the high court ended up endorsing the learned rebelt reir competence to do so, "in opinion and revising the law, some might say, does not change the fact that t5 :1." he knowingly defied the court in the first place. Therefore, regardless of the court's praise for the quality of his reasoning and its subsequent ruling in his favor, the elder should have been executed for urging others to break what even he admits was the law at the time. Mutiny is mutiny. Elsewhere in talmudic literature, however, one can detect other as codified by Maimonides, voices. The first mishnah of Horayot ($5) clearly urges people well versed :d, the orly question left for in the law not to follow the courts blindly. "students worthy of ruling" are held personally responsible for their actions regardless of the court's rulings. If they believe a particular ruling to be mistaken, they are obliged to defy I'iI. r48o it and act as they see fit. On such a view, court rulings an ,n. Y]S: "striG may not increase in play importantly different role for these students than they do for laity. Unlike the latter, the 330 Controversy and Dissent former are encouraged not to rely automatically on the courts but to follow their own conscience. And if students are expected to behave in this manner, the argument might go, all the more so elders of standing. The line between defying the courts in the manner valor rzed tn Horayot and doing so in the manner deemed high treason in Sanhedrin is customarily drawn between acting for oneself and ruling for others. For the learned, ruling is considered mutiny; acting for oneself is bravely doing the right thing. But this distinction is at best a formality. As far as mutiny is con- cerne d, it makes little sense to distinguish between a sage of standing issuing a defiant halakhic verdict by announcing it verbally and his laying down the law in similar defiance by setting a personal example. In religious societies, "follow the leader" is more than a children's game. The difference between the attitudes of Horayot and Sanhedrin, it seems to me, has to do less with the formal aspects of dissent and more with who is eventually found to have been right. Horayot, I suggest, is about cases in which the learned dissenter's criticism of the court's ruling is deemed valid, whereas Sanhedrin is about cases in which the criticism is considered groundless. Read together, might not these two texts allow the court to recon- sider its own ruling and exoner ate a rebellious elder on the grounds that he was right? But I am moving a little too quickly. Deliberating the fate o{ a rebel who convinces the high court to rethink the halakhic issue he contested presupposes the liberty of the court to overturn rulings associated with such levels of defiance. Again, I am not speaking of cases in which the court's understanding of the law in question was proven mistaken, but of cases in which the elder convinces the court that the law itseH is contestable. On this, more basic questior, I believe, the texts before us remain divided. The extreme view-according to which the court is granted the authority only to supplement, but never to amend, the halakhah-is voiced clearly in texts originating from the Tosefta. In the baraita cited in BT Sanhedrin (To- sefta Sanhedrin 7:r) before us, Rabbi Yose argues"that the court system is wholly bound by received tradition. At every level-including that of the high court in session in the Hall of Hewn Stones - the same formula is re - peated: "If the court has received a tradition [on the matter in hand], they inform [the parties]." Only ir the absence of authentic precedents does the high court have the authority to issue a ruling of its own. Faced with an The Rebellious Elder y on the courts but to follow existing tradition, asserts the baraita, the court is powerless to rule differently :ted to behave in this manner. and, consequently, is powerless ever to grant a rebellious elder his point. 'What of standing. is to count as "received tradition"? Tosefta Eduyot r:+ (_f:) ; in the manner valorized in implies that the body of law to which all courts are cornmitted consists not high treason in Sanhedrin is orly of the established traditions but also of all former high court decisions. and ruling for others.
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