In Wisdom, in Numbers: Changing the Outcome With Collective Power

by Elaina Marshalek, Director of Programs

This week (and in countless weeks before), I watched people who hold tremendous power do tremendously terrible things. With heinous anti-trans and anti-queer legislation proliferating in the United States – alongside the wars in Ukraine and around the world – I see my comrades cycling through hopelessness, calls to action, and an eventual descent back into hopelessness. 

In times like these, I also feel angst about my interactions with halakha. What should my commitment to G!d look like in conversation with Rabbinic authorities? In many ways, I am a devout rule follower, and in much of my Jewish practice I have felt comfort in the structure, regularity, and surety of the Jewish tradition (yes, I am a one on the enneagram). Laynie recently elucidated the notion that, at its core, halakha is innovative, nuanced, non-binary, and always changing. As a queer human with a full and messy life, I welcome that nuance into conversation with the reliable structure of halakha.

And yet, moments like this illuminate and affirm my lack of trust in leadership. So much of halakha has historically focused on the arguments of the Rabbis and the rulings of the Beit Din (literally “house of judgment”, coming to mean “the Rabbinic Court”). We know that there have been attempts throughout Jewish history to concentrate halakhic authority among a powerful few. We toil through the words of people we know are at once on the margins of society and also remain, in so many ways, at the center of patriarchal power. Problem!

And still, I look for my answer in the text. In Avodah Zara 36a, we get a list of items made by idol-worshippers that are prohibited to consume, including the item we’ll focus our case study on: oil. Almost immediately, we get a refutation that turns it on its head:

ואלו דברים של עובדי כוכבים אסורין ואין איסורן איסור הנאה חלב שחלבו עובד כוכבים ואין ישראל רואהו והפת והשמן שלהן רבי ובית דינו התירו השמן

And these are items of idolators that are prohibited, but does not prohibit deriving benefit: Milk that was milked by an idolator without a Jew watching, and their bread and oil. Rabbi [Yehuda HaNasi] and his court permitted the oil.

While the Mishnah clearly prohibits the use of oil made by idolators, likely stemming from the desire to separate different ritual practices (let’s put a sticky on this for a future HOTS), we then learn that Rabbi Yehuda HaNasi and his court deemed it permitted. What happened?

This is not simply Rabbis sharing a differing opinion, but rather this is Rabbi Yehuda HaNasi’s court actually changing the law and decreeing something different for the people. The Gemara acknowledges that this isn’t any old disagreement and drums ups the drama:

ור׳ יהודה הנשיא היכי מצי למישרא תקנתא דתלמידי שמאי והלל והתנן אין בית דין יכול לבטל דברי בית דין חבירו אלא אם כן גדול הימנו בחכמה ובמנין     

But Rabbi Yehuda HaNasi, how could he permit an ordinance [that was forbidden] by the disciples of Shammai and Hillel? Wasn’t it taught in a Mishnah: A Beit Din (court) can’t nullify the words of another Beit Din, unless it’s greater than it in wisdom and in numbers? 

The Gemara challenges Rabbi Yehuda HaNasi’s departure from the classic prohibition. It says that a ruling can’t be overturned by a court unless it’s greater in wisdom and in numbers, implying that Rabbi Yehuda HaNasi’s court is not up to snuff as compared to Hillel and Shammai. 

What does it mean to need a bigger and wiser court in order to overturn a decree? On one hand, we could see this as a spiral upward in imagining authority, leaving us little room to grow and change. On the other hand, it seems that we are orienting our leadership toward an ever-greater number of people. 

But the drama doesn’t stop there. It is revealed that this prohibition was decreed by the disciples of Shammai and Hillel, and is considered to be one of the 18 prohibitions that can’t be overturned, ever:

ועוד הא אמר רבה בר בר חנה אמר ר׳ יוחנן בכל יכול לבטל בית דין דברי בית דין חבירו חוץ משמונה עשר דבר שאפילו יבא אליהו ובית דינו אין שומעין לו

And further, didn’t Rabbah bar Bar Chanah say that Rabbi Yochanan said: In all matters, a Beit Din can nullify the words [rulings] of another Beit Din, except for the 18 things prohibited by Beit Hillel and Beit Shammai, that even if Eliyahu the Prophet and his Beit Din would come and declare them permitted, we don’t listen to him.

And then, eliminating any doubt, the Gemara challenges that this oil prohibition is one of the 18 prohibitions that are extra special. They can’t be overturned. At all. 

It seems that in this challenge, this imagined system of authority begins to unravel. We assert that the power of decision-making always yields to greater and larger courts, but then we get another hot take: “Wait! These 18 things can’t be changed at all, for any reason, under whatever circumstances or authority.” We close with the most extreme example: if Eliyahu the Prophet himself rolled in with his own court and said that the oil should be permitted, we’re still not supposed to listen to him. 

At SVARA we know what happens under these circumstances. When we encounter a rule that is seemingly unchanging and immutable, only one thing can happen: it’s going to crash. 

But how? What’s happening? Where is the power here?

In this story, I think about the theory of power I’ve learned in many Momentum organizing spaces championed by Gene Sharp, a political scientist who theorized about the power of nonviolent action. Sharp presents a framework of a society divided into rulers and masses. A traditional view of power is shaped like a pyramid, where power flows from the few at the top, downward to the many at the bottom. In contrast, Sharp’s view of power requires us to flip this triangle upside down, proposing that the power of the rulers is predicated on the consent of the masses. While this is a simplistic framework, it feels empowering to imagine that our social power, when collectively harnessed, is paramount.

Returning back to our sugya, we see that this is the way the system of authority is turned upside down:

אמר רב משרשיא מה טעם הואיל ופשט איסורו ברוב ישראל שמן לא פשט איסורו ברוב ישראל

Rav Mesharshia said: What’s the reason [that the oil is an exception in the 18 prohibitions]? Since the prohibition [for the other 17 subjects] became widespread among the majority of the Jewish people, but [the prohibition of] oil didn’t become widespread among the majority of the Jewish people. 

What?! Rav Mesharshia brings a problem to center stage. This prohibition wasn’t sticking, even as one of these 18 super special laws. It wasn’t taking root in the majority of the Jewish community. The Gemara pulls back the curtain and explains further:

דאמר רבי שמואל בר אבא אמר רבי יוחנן ישבו רבותינו ובדקו על שמן שלא פשט איסורו ברוב ישראל וסמכו רבותינו על דברי רשב״ג ועל דברי רבי אלעזר בר צדוק שהיו אומרים אין גוזרין גזירה על הצבור אא״כ רוב צבור יכולין לעמוד בה

As Rabbi Shmuel bar Abba said that Rabbi Yochanan said: Our Rabbis [Rabbi Yehuda and his Beit Din] sat and investigated about [the case of the] oil, [and found that] its prohibition hadn’t spread among the majority of the Jewish people. And our Rabbis found support from the words of Rabban Shimon ben Gamliel, and from the words of Rabbi Eliezer bar Tzadok, who said: We don’t issue a decree upon the community unless the majority of the community is able to stand for it. 

When the beit din of Rabbi Yehuda HaNasi saw that most Jews weren’t adhering to the prohibition of the oil, they knew the law wasn’t working. They paired that with the idea that we don’t (and can’t) decree the community to follow a law if the majority of the community won’t stand for it. Rabbi Yehuda HaNasi knew there was danger in an ordinance that no one follows. The rules become irrelevant. And with this in mind, he did what was believed to be un-doable: he nullified an un-nullifiable law.

What does it mean that the majority of the community יכולין לעמוד בה, that they are able to stand for it? The word לעמוד can mean many things: to stand, to rise, to remain, to endure, to be ready. The understanding of this word is also linked to the dual definition of resistance and presumptive condition, just as we can understand the word ‘stand’ in English to mean “to take a stand” or “to act”, as well as a “standing” – something that is held as a designation. Perhaps individuals didn’t agree with the ordinance and were acting against it, or perhaps it was an impossible task in the interconnectedness of their community to isolate oil production for Jewish purposes. In any case, these words יכולין לעמוד בה point to a profound variable that is core to our understanding of halakha: the ability of the community to stand for something and thus change the outcome.

Our collective power is so strong that we not only possess the tools to render problematic laws irrelevant, but we can actually transform halakha to be responsive to what the masses stand for. This is inherent in the nature and evolution of halakhic discourse; the Rabbis know that halakha is a collective project, driven by the willingness of our community to live out the values and principles that we toil upon together. In this case, Rabbi Yehuda HaNasi and his court can sense this power, and decide to align their policies with the people. A decree that was labeled unchangeable, even by a court headed by Elijah the Prophet, is annulled by the will of the people. Regardless of whether we find ourselves within or beyond the bet midrash, our collective values are immensely powerful. As I turn back to face these moments of great hopelessness, I’m hoping to ground myself in feeling the collectivity of our power.