I. Enforcing Qualifications
In the 16th century, Egypt was home to a thriving Jewish community to which, in some ways, Israel was a satellite. In any community, people will try to find ways around authority figures – sometimes for good reasons, but often for less than noble ones. At the time in Egypt, people were selecting ad hoc batei din to resolve financial matters, using young inexperienced rabbis.
Around 1552, leading rabbis in Egypt issued a cherem against people using rabbinic judges not approved by official channels. Rav Moshe of Trani (Mabit) of Tzfas, together with some Egyptian rabbis, went even further, issuing an excommunication order against rabbis under the age of 40 ruling on matters of Jewish law.
The Mabit’s colleague in Tzfas, Rav Yosef Karo (who later authored the Shulchan Aruch) objected to this handcuffing of young rabbis. How could his students lead communities if they couldn’t issue halachic rulings? he asked. (On the disagreements and hard feelings between the Mabit and Rav Yosef Karo, see Prof. Haim Zalman Dimitrovski, “A Debate Between Maran Rav Yosef Karo and the Mabit” [Hebrew] in Sefunot, no. 6, pp. 71-123.)
Rav Karo reached out to leading rabbis in the Mediterranean region seeking support. He received answers from Rav David Ibn Zimra in Egypt (the Radbaz), Rav Yosef Kurkus in Jerusalem(the Mahari), and Rav Shmuel di Modena in Salonica (the Maharshdam).
II. Minimum Age for Rabbis
The key Talmudic passage in this debate was Avodah Zarah 19b, which addresses who may issue legal rulings:
R. Abba said in the name of R. Huna in the name of Rav: The verse, “For she has cast down many wounded” (Proverbs 7:26) refers to the disciple who has not reached the ability and issues rulings; “A mighty host are her slain” (ibid.) refers to the disciple who has reached the ability but refrains from issuing rulings. Until when? Forty years. But didn’t Rabbah issue rulings [before he turned 40]? That was a case of being equal.
From a simple reading of this passage, it seems pretty clear that a rabbi must be at least 40 years old to issue rulings unless he is equal to his older colleagues. Rashi (ad loc.) explains that if he is equal with the greatest rabbis in town – i.e., there is no one greater than him – he may issue rulings even if he is younger than forty.
Tosafos (Sotah 22b sv. be-shavin) understands the Gemara as adding a qualifier to the prohibition. The prohibition only applies if you are equal to others. If you are the biggest scholar in town, though, you may issue rulings. Either way, you have to be a top scholar to issue rulings under the age of 40. The Mabit (Responsa 1:157, 280) explains that this was the basis of the cherem.
The Maharshdam (Responsa, Choshen Mishpat, no. 1) reads the Gemara differently. The question “Until when?” doesn’t refer to the permission to issue rulings, he says, but to the obligation to do so. The Maharshdam explains that there are three categories:
1) those who may not issue rulings (unfit), 2) those who must issue rulings (completely fit) and 3) those who may issue rulings (fit). Someone can be an expert, but he is not obligated to issue a ruling until he reaches the age of 40. The Gemara notes that Rabbah issued rulings before the age of 40. Is it possible that someone as great as he was not completely fit to rule? The Gemara answers that greatness comes into play. If you are as great or greater than the top scholars, you are completely fit.
III. Impact of Technology
However, the Maharshdam suggests that none of this is relevant. In the days of the Talmud, he writes, rabbis studied orally and issued rulings based on their accumulated learning. In the 16th century, as Gutenberg’s invention of the movable-type printing press was taking the world by storm, the learning process had changed. People gained their knowledge primarily from books, not teachers. Therefore, a rabbi – while he must be fully trained in order to understand the complete context of the rulings contained in books – may issue rulings freely once he reaches that understanding because he is not really ruling. The books are.
The Maharshdam is too cautious to use this logic to set aside the serious prohibition against issuing a ruling in the presence of one’s mentor. However, he thinks it is sufficient to set aside the 40-year rule.
The Maharshdam quotes the Orchos Chayim (Hilkhos Talmud Torah, no. 24) in the name of Rav Meir of Rothenburg (also quoted in Hagahos Maimoniyos, Hilchos Talmud Torah 5:3), who maintains that since the destruction of the Temple, books are our teachers. Therefore, even in front of one’s mentor, one may teach a ruling found explicitly in an authoritative book. However, one may not extrapolate or rule based on one’s own proofs.
The Maharshdam says that since our case deals with a less severe prohibition, it is even more permitted. Rav Yosef Kolon (Responsa Maharik, no. 169) disagrees because the codes and commentaries fail to mention this change. The Maharshdam, though, is not impressed with this argument from silence. He points to a passage in Eruvin (62b) in which Rav Ya’akov Bar Abba asked Abayei whether a student in front of his mentor can teach a ruling in Megillas Ta’anis, an ancient text. Abayei answered that a student cannot even teach that an egg that fell into milk is permitted.
The Maharshdam explains that in the time of the Gemara, laws written in Megillas Ta’anis represented an exception as the vast majority of laws were taught orally. Therefore, a student could not even teach a written law. Nowadays, when the majority of laws are written, this concern no longer applies. (See Shach [Yoreh De’ah 242:16] whose question is answered by the Maharshdam.)
The Radbaz (Responsa, vol. 6, no. 2,147) points out that the Rambam (Mishneh Torah, Hilchos Talmud Torah 5:4) omits the 40-year rule. Like the Maharshdam, he suggests that this rule only applied when laws were taught orally. Now that the laws are written, as long as someone is qualified, he can issue rulings regardless of his age. The Radbaz goes further and says that even someone unqualified can issue a ruling if he does not deviate from what is written in the books.
IV. Conclusion
Both the Maharshdam and Radbaz agree that a cherem to strengthen a law need not be unanimous. However, a cherem that is stricter than a law must be approved by all rabbis in the relevant location. Since that was not the case with this cherem, it lacked authority and could be ignored.
Regarding the main contention: Rabbis today tend to issue basic rulings even if they are younger than 40. However, they take any question that requires analysis and deduction to a seasoned and qualified authority. Young rabbis have a role, but must know their limits as they continue learning by asking greater and more experienced scholars.