Can "we" expand upon or interpret Torah?
אמר רב יהודה אמר רב בשעה שעלה משה למרום מצאו להקב"ה שיושב וקושר כתרים לאותיות אמר לפניו רבש"ע מי מעכב על ידך אמר לו אדם אחד יש שעתיד להיות בסוף כמה דורות ועקיבא בן יוסף שמו שעתיד לדרוש על כל קוץ וקוץ תילין תילין של הלכות אמר לפניו רבש"ע הראהו לי אמר לו חזור לאחורך הלך וישב בסוף שמונה שורות ולא היה יודע מה הן אומרים תשש כחו כיון שהגיע לדבר אחד אמרו לו תלמידיו רבי מנין לך אמר להן הלכה למשה מסיני נתיישבה דעתו חזר ובא לפני הקב"ה אמר לפניו רבונו של עולם יש לך אדם כזה ואתה נותן תורה ע"י אמר לו שתוק כך עלה במחשבה לפני אמר לפניו רבונו של עולם הראיתני תורתו הראני שכרו אמר לו חזור [לאחורך] חזר לאחוריו ראה ששוקלין בשרו במקולין אמר לפניו רבש"ע זו תורה וזו שכרה א"ל שתוק כך עלה במחשבה לפני
§ Rav Yehuda says that Rav says: When Moses ascended on High, he found the Holy One, Blessed be He, sitting and tying crowns on the letters of the Torah. Moses said before God: Master of the Universe, who is preventing You from giving the Torah without these additions? God said to him: There is a man who is destined to be born after several generations, and Akiva ben Yosef is his name; he is destined to derive from each and every thorn of these crowns mounds upon mounds of halakhot. It is for his sake that the crowns must be added to the letters of the Torah. Moses said before God: Master of the Universe, show him to me. God said to him: Return behind you. Moses went and sat at the end of the eighth row in Rabbi Akiva’s study hall and did not understand what they were saying. Moses’ strength waned, as he thought his Torah knowledge was deficient. When Rabbi Akiva arrived at the discussion of one matter, his students said to him: My teacher, from where do you derive this? Rabbi Akiva said to them: It is a halakha transmitted to Moses from Sinai. When Moses heard this, his mind was put at ease, as this too was part of the Torah that he was to receive. Moses returned and came before the Holy One, Blessed be He, and said before Him: Master of the Universe, You have a man as great as this and yet You still choose to give the Torah through me. Why? God said to him: Be silent; this intention arose before Me. Moses said before God: Master of the Universe, You have shown me Rabbi Akiva’s Torah, now show me his reward. God said to him: Return to where you were. Moses went back and saw that they were weighing Rabbi Akiva’s flesh in a butcher shop [bemakkulin], as Rabbi Akiva was tortured to death by the Romans. Moses said before Him: Master of the Universe, this is Torah and this is its reward? God said to him: Be silent; this intention arose before Me.
תָּא שְׁמַע אֵלָיו תִּשְׁמָעוּן אֲפִילּוּ אוֹמֵר לְךָ עֲבוֹר עַל אַחַת מִכׇּל מִצְוֹת שֶׁבַּתּוֹרָה כְּגוֹן אֵלִיָּהוּ בְּהַר הַכַּרְמֶל הַכֹּל לְפִי שָׁעָה שְׁמַע לוֹ שָׁאנֵי הָתָם דִּכְתִיב אֵלָיו תִּשְׁמָעוּן וְלִיגְמַר מִינֵּיהּ מִיגְדַּר מִילְּתָא שָׁאנֵי
The Gemara suggests: Come and hear another proof. The verse states with regard to a true prophet: “To him you shall listen” (Deuteronomy 18:15). From here it is derived that even if the prophet says to you: Transgress one of the mitzvot of the Torah, for example, as in the case of Elijah at Mount Carmel, who brought an offering to God on that mountain during a period when it was forbidden on pain of karet to sacrifice offerings outside the Temple, with regard to everything that he permits for the requirement of the hour, you must listen to him. This indicates that a Torah mitzva can indeed be uprooted in an active manner. The Gemara answers: There it is different, as it is written: “To him you shall listen,” which means that it is a positive mitzva to obey a prophet, and a positive mitzva overrides a prohibition. The Gemara asks: And let him derive from this case a principle that the Sages have the same power as a prophet. The Gemara answers: Safeguarding a matter is different. Since Elijah acted with the aim of preventing the Jewish people from worshipping idols, it was temporarily permitted for him to override a mitzva, in order to strengthen Torah observance with regard to a particular matter in which the people are lax.
Choosing between competing values or "mitzvot."
תָּא שְׁמַע אָמַר רַבִּי אֶלְעָזָר בֶּן יַעֲקֹב שָׁמַעְתִּי שֶׁבֵּית דִּין מַכִּין וְעוֹנְשִׁין שֶׁלֹּא מִן הַתּוֹרָה וְלֹא לַעֲבוֹר עַל דִּבְרֵי תוֹרָה אֶלָּא לַעֲשׂוֹת סְיָיג לַתּוֹרָה וּמַעֲשֶׂה בְּאָדָם אֶחָד שֶׁרָכַב עַל סוּס בַּשַּׁבָּת בִּימֵי יְוָנִים וֶהֱבִיאוּהוּ לְבֵית דִּין וּסְקָלוּהוּ לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ וְשׁוּב מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁהֵטִיחַ בְּאִשְׁתּוֹ תַּחַת הַתְּאֵנָה וֶהֱבִיאוּהוּ לְבֵית דִּין וְהִלְקוּהוּ לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ מִיגְדַּר מִילְּתָא שָׁאנֵי
The Gemara cites yet another relevant source. Come and hear, as Rabbi Elazar ben Ya’akov said: I have heard that the reason why the court may administer lashes and punish not by Torah law, i.e., in response to actions for which one is not liable to receive punishment by Torah law, is not so as to transgress matters of Torah, but to establish a safeguard for the Torah. And an example of this is an incident involving a certain person who rode on a horse on Shabbat in the days of the Greeks, an act that is prohibited by rabbinic law, and they brought him to the court and they stoned him as a desecrator of Shabbat. They did so not because he was deserving of this, as riding a horse is not punishable by stoning by Torah law, but because the hour required it, as at that time Jews were negligent with regard to Shabbat observance. And again, an incident occurred involving a certain person who cohabited with his own wife under a fig tree in plain view, and they brought him to the court and flogged him, not because this punishment was fitting for him, as it is not prohibited by the Torah for one to engage in relations with his wife wherever he chooses, but because the hour required it, to discourage others from engaging in licentious behavior. This shows that the court can uproot a Torah mitzva even by means of a positive action such as stoning. The Gemara answers: Safeguarding a matter is different. As stated above, the court may uproot a Torah mitzva so as to strengthen Torah observance in general, as was the case with the prophet Elijah.
Townsman: He's right and he is right, how can they both be right?
Tevye: You know, you are also right!
אָמַר רַבִּי אַבָּא אָמַר שְׁמוּאֵל: שָׁלֹשׁ שָׁנִים נֶחְלְקוּ בֵּית שַׁמַּאי וּבֵית הִלֵּל, הַלָּלוּ אוֹמְרִים: הֲלָכָה כְּמוֹתֵנוּ, וְהַלָּלוּ אוֹמְרִים: הֲלָכָה כְּמוֹתֵנוּ. יָצְאָה בַּת קוֹל וְאָמְרָה: אֵלּוּ וָאֵלּוּ דִּבְרֵי אֱלֹהִים חַיִּים הֵן, וַהֲלָכָה כְּבֵית הִלֵּל.
Rabbi Abba said that Shmuel said: For three years Beit Shammai and Beit Hillel disagreed. These said: The halakha is in accordance with our opinion, and these said: The halakha is in accordance with our opinion. Ultimately, a Divine Voice emerged and proclaimed: Both these and those are the words of the living God. However, the halakha is in accordance with the opinion of Beit Hillel.
(ד) וְלָמָּה מַזְכִּירִין אֶת דִּבְרֵי שַׁמַּאי וְהִלֵּל לְבַטָּלָה, לְלַמֵּד לַדּוֹרוֹת הַבָּאִים שֶׁלֹּא יְהֵא אָדָם עוֹמֵד עַל דְּבָרָיו, שֶׁהֲרֵי אֲבוֹת הָעוֹלָם לֹא עָמְדוּ עַל דִּבְרֵיהֶם:
(4) And why do they record the opinions of Shammai and Hillel for naught? To teach the following generations that a man should not [always] persist in his opinion, for behold, the fathers of the world did not persist in their opinion.
The appearance of impropriety, even where there is no transgression, must be taken into account when choosing how to observe Jewish law.
אָמַר שְׁמוּאֵל: מְקַבְּלֵי קִיבּוֹלֶת, בְּתוֹךְ הַתְּחוּם — אָסוּר. חוּץ לַתְּחוּם — מוּתָּר. אָמַר רַב פָּפָּא: וַאֲפִילּוּ חוּץ לַתְּחוּם, לֹא אֲמַרַן אֶלָּא דְּלֵיכָּא מָתָא דִּמְקָרְבָא לְהָתָם, אֲבָל אִיכָּא מָתָא דִּמְקָרְבָא לְהָתָם — אָסוּר. אָמַר רַב מְשַׁרְשְׁיָא: וְכִי לֵיכָּא מָתָא דִּמְקָרְבָא לְהָתָם נָמֵי, לָא אֲמַרַן אֶלָּא בְּשַׁבָּתוֹת וּבְיָמִים טוֹבִים, דְּלָא שְׁכִיחִי אִינָשֵׁי דְּאָזְלִי לְהָתָם, אֲבָל בְּחוּלּוֹ שֶׁל מוֹעֵד, דִּשְׁכִיחִי אִינָשֵׁי דְּאָזְלִי וְאָתוּ לְהָתָם — אָסוּר. מָר זוּטְרָא בְּרֵיהּ דְּרַב נַחְמָן בְּנוּ לֵיהּ אַפַּדְנָא מְקַבְּלֵי קִיבּוֹלֶת חוּץ לַתְּחוּם. אִיקְּלַע רַב סָפְרָא וְרַב הוּנָא בַּר חִינָּנָא, וְלָא עַלּוּ לְגַבֵּיהּ. וְאִיכָּא דְּאָמְרִי: הוּא נָמֵי לָא עָל בְּגַוֵּויהּ. וְהָאָמַר שְׁמוּאֵל: מְקַבְּלֵי קִיבּוֹלֶת — בְּתוֹךְ הַתְּחוּם אָסוּר, חוּץ לַתְּחוּם מוּתָּר! אָדָם חָשׁוּב שָׁאנֵי. וְאִיכָּא דְּאָמְרִי: סַיּוֹעֵי סַיַּיע בְּתִיבְנָא בַּהֲדַיְיהוּ. רַב חָמָא שְׁרָא לְהוּ לְאַבְוָנְגָּרֵי דְּבֵי רֵישׁ גָּלוּתָא לְמֶיעְבַּד לְהוּ עֲבִידְתָּא בְּחוּלָּא דְמוֹעֲדָא, אֲמַר: כֵּיוָן דַּאֲגַר לָא קָא שָׁקְלִי, שַׁרְשׁוֹיֵי הוּא דְּקָא מְשָׁרְשׁוּ לֵיהּ, וְלֵית לַן בַּהּ.
§ Shmuel said: With regard to gentile contractors, who are paid for the completed job rather than by the day, it is prohibited for them to work for a Jew within the boundaries of the Shabbat limit on a day that it is prohibited for the Jew to work. It looks like the Jew assigned work for them to do on that day, even though they in fact make their own schedule. Outside the Shabbat limit, where Jews will not see the work being done, it is permitted. Rav Pappa said: And even outside the Shabbat limit, we said only that it is permissible to let them work when there is no other city in close proximity to there, but if there is another city in close proximity to there, it is prohibited, since the work is likely to be seen by a Jew. Rav Mesharshiyya said: And even when there is no other city in close proximity, we said that it is permissible for gentile contractors to work for a Jew only on Shabbatot and Festivals, when Jewish people do not routinely go there, i.e., to the place where the work is being performed. However, on the intermediate days of a Festival, when Jewish people routinely come and go from there and see the work being done, it is prohibited. The Gemara relates about Mar Zutra, son of Rav Naḥman, that gentile contractors built a mansion [apadana] for him outside the Shabbat limit. Rav Safra and Rav Huna bar Ḥinnana happened to come there, but they did not enter it, because it had been built on Shabbat in a prohibited manner. And there are those who say: Even he, Mar Zutra himself, did not enter it. The Gemara asks: But didn’t Shmuel say: With regard to gentile contractors, within the boundaries of the Shabbat limit, it is prohibited to let them work on Shabbat, but outside the Shabbat limit it is permitted? The Gemara answers: An important person is different and must behave in a stricter manner. And there are those who say: He provided them with assistance with straw for making the bricks. Consequently, they were not fully independent contractors, and therefore it was prohibited for them to work on Shabbat, even outside the Shabbat limit. The Gemara relates that Rav Ḥama permitted the bath attendants [abunagrei] of the Exilarch’s house to work for them, i.e., the Exilarch and his household, on the intermediate days of a Festival. He said in explanation of this leniency: Since they do not take payment for working during the week of the Festival, they are merely conferring a favor on the Exilarch. Therefore, it is not viewed as actual labor, and we have no problem with it.
Where there is doubt as to the facts, leniency is allowed for the sake of a person's well-being; such as the "widow" of a man who is missing.
מַתְנִי׳ מְעִידִין לְאוֹר הַנֵּר וּלְאוֹר הַלְּבָנָה וּמַשִּׂיאִין עַל פִּי בַּת קוֹל מַעֲשֶׂה בְּאֶחָד שֶׁעָמַד עַל רֹאשׁ הָהָר וְאָמַר אִישׁ פְּלוֹנִי בֶּן פְּלוֹנִי מִמָּקוֹם פְּלוֹנִי מֵת הָלְכוּ וְלֹא מָצְאוּ שָׁם אָדָם וְהִשִּׂיאוּ אֶת אִשְׁתּוֹ וְשׁוּב מַעֲשֶׂה בְּצַלְמוֹן בְּאֶחָד שֶׁאָמַר אֲנִי אִישׁ פְּלוֹנִי בֶּן אִישׁ פְּלוֹנִי נְשָׁכַנִי נָחָשׁ וַהֲרֵי אֲנִי מֵת וְהָלְכוּ וְלֹא הִכִּירוּהוּ וְהָלְכוּ וְהִשִּׂיאוּ אֶת אִשְׁתּוֹ גְּמָ׳ אָמַר רַבָּה בַּר שְׁמוּאֵל תָּנָא בֵּית שַׁמַּאי אוֹמְרִים אֵין מַשִּׂיאִין עַל פִּי בַּת קוֹל וּבֵית הִלֵּל אוֹמְרִים מַשִּׂיאִין עַל פִּי בַּת קוֹל מַאי קָא מַשְׁמַע לַן מַתְנִיתִין הִיא הָא קָא מַשְׁמַע לַן דְּאִי מַשְׁכַּחַתְּ סְתָמָא דְּאֵין מַשִּׂיאִין בֵּית שַׁמַּאי הִיא וְהָלְכוּ וְלֹא מָצְאוּ וְדִלְמָא שֵׁד הֲוָה אָמַר רַב יְהוּדָה אָמַר רַב שֶׁרָאוּ לוֹ דְּמוּת אָדָם אִינְהוּ נָמֵי דָּמוּ דַּחֲזוֹ לֵיהּ בָּבוּאָה וְאִינְהוּ נָמֵי אִית לְהוּ בָּבוּאָה דַּחֲזוֹ לֵיהּ בָּבוּאָה דְבָבוּאָה וְדִלְמָא לְדִידְהוּ אִית לְהוּ בָּבוּאָה דְבָבוּאָה אָמַר רַבִּי חֲנִינָא אָמַר לִי יוֹנָתָן שֵׁידָא בָּבוּאָה אִית לְהוּ בָּבוּאָה דְבָבוּאָה לֵית לְהוּ וְדִלְמָא צָרָה הֲוַאי תָּנָא דְּבֵי רַבִּי יִשְׁמָעֵאל בִּשְׁעַת הַסַּכָּנָה כּוֹתְבִין וְנוֹתְנִין אַף עַל פִּי שֶׁאֵין מַכִּירִין
MISHNA: Witnesses may testify that an individual died even if they saw his corpse only by candlelight or by moonlight. And the court may allow a woman to marry based on the statement of a disembodied voice proclaiming that her husband died. There was an incident with regard to a certain individual who stood at the top of a mountain and said: So-and-so, son of so-and-so, from such and such a place died. They went and found no person there, but even so they relied upon the statement and allowed the wife of the individual declared dead to marry. And there was another incident in Tzalmon, a city in the Galilee, where a particular man said: I am so-and-so, son of so-and-so. A snake bit me and I am dying. And they went and found his corpse but could not recognize him, yet they went ahead and allowed his wife to marry based on what he said in his dying moments. GEMARA: Rabba bar Shmuel said: It was taught in a baraita that Beit Shammai say: The judges of a court may not allow a woman to marry based on the statement of a disembodied voice; they require actual testimony. And Beit Hillel say: The judges may allow a woman to marry based on the statement of a disembodied voice. The Gemara asks: What is Rabba bar Shmuel teaching us here? This is simply our mishna, since the decisive ruling follows Beit Hillel’s opinion. The Gemara answers that he teaches us this: That if an anonymous mishna or baraita is found that states that the judges may not allow a woman to marry under such circumstances, it is simply the opinion of Beit Shammai, and is not the accepted ruling. With regard to the incident where they heard a disembodied voice but went and found no person there, which is mentioned in the mishna, the Gemara asks: Perhaps it was a demon. Rav Yehuda said that Rav said: They saw that he had the form of a person, so they knew it was not a demon. The Gemara asks: They, i.e., demons, also appear similar to people. The Gemara answers: They saw that he had a shadow. The Gemara asks: But they also have a shadow. The Gemara answers: It was a case where they saw that he had a shadow of a shadow. The Gemara asks: But perhaps they also have a shadow of a shadow? Rabbi Ḥanina said: Yonatan the demon expert said to me: They have a shadow, but they do not have a shadow of a shadow. The Gemara asks: And perhaps it was a rival wife, or some other enemy of that man’s wife, who cried out that her husband was dead and then fled, in order to trick her into disgracing herself by remarrying while her husband was still alive? The Gemara answers: The school of Rabbi Yishmael taught: During a period of danger, one may write and give a bill of divorce to a woman, although the witnesses do not know the husband, because we do not raise many suspicions at such a time. This case was similar to a period of danger in that they did not find witnesses that her husband died, and therefore the court did not require further clarification.
אָמַר רַבָּה בַּר בַּר חָנָה אָמַר רַבִּי יוֹחָנָן: כׇּל מָקוֹם שֶׁאַתָּה מוֹצֵא יָחִיד מֵקֵיל וְרַבִּים מַחְמִירִין — הֲלָכָה כָּרַבִּים. חוּץ מִזּוֹ, שֶׁאַף עַל פִּי שֶׁרַבִּי עֲקִיבָא מֵקֵיל וַחֲכָמִים מַחְמִירִין — הֲלָכָה כְּרַבִּי עֲקִיבָא. דְּאָמַר שְׁמוּאֵל: הֲלָכָה כְּדִבְרֵי הַמֵּקֵיל בְּאֵבֶל.
Rabba bar bar Ḥana said that Rabbi Yoḥanan said: Wherever you find an individual being lenient and the majority being stringent, the halakha is in accordance with the majority, except for this case, for even though Rabbi Akiva is lenient and the Rabbis are stringent, the halakha is in accordance with the opinion of Rabbi Akiva. This is in keeping with the principle stated by Shmuel: The halakha follows the statement of the more lenient authority in matters relating to mourning.
What about minority opinions?
The Mishnayot in Eduyot 1:5–6 teach us the following:
5. And why do they [the Masters of the Mishna] record the opinion of the individual against that of the majority, whereas the halakha [ruling] may only be according to the opinion of the majority? That, if a court approves the opinion of the individual, it may rely upon him…
6. R. Yehudah said: If so, why do they record the opinion of the individual against that of the majority when it does not prevail? That, if one shall say [i.e., at a later date], "I have received such a tradition," another may answer, "You did not hear it [except] as the opinion of such a one.”
In the Tosefta (Eduyot 1:4), we read:
The halakha is always in accordance with the opinion (divrei) of the majority; the opinion of the individual, as opposed to that of the majority, is only cited to be rejected. R. Yehudah says: The opinion of the individual, as opposed to that of the majority, is cited lest there be an hour of need, and they can rely upon it. The Rabbis said: The opinion of the individual, as opposed to that of the majority, is cited so that when one says “it is pure” and the other says “it is impure,” this says “it is impure in accordance with the view of R. Eliezer,” they reply to him, “the ruling is in accordance with the tradition of R. Eliezer.”
The Mishnah rules that the minority view can be used by a more senior beit din, while the Tosefta says that it can be used to make changes in the law when there is an hour of need.
To determine the application of halachah, we might turn to an authoritative figure for counsel or resolution.
וְאוֹמֵר: ״וּבָאתָ אֶל הַכֹּהֲנִים הַלְוִיִּם וְאֶל הַשֹּׁפֵט אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם״, וְכִי תַּעֲלֶה עַל דַּעְתְּךָ שֶׁאָדָם הוֹלֵךְ אֵצֶל הַדַּיָּין שֶׁלֹּא הָיָה בְּיָמָיו? הָא אֵין לְךָ לֵילֵךְ אֶלָּא אֵצֶל שׁוֹפֵט שֶׁבְּיָמָיו. וְאוֹמֵר: ״אַל תֹּאמַר מֶה הָיָה שֶׁהַיָּמִים הָרִאשׁוֹנִים הָיוּ טוֹבִים מֵאֵלֶּה״.
And it further says: “And you shall come to the priests, the Levites, and to the judge who shall be in those days” (Deuteronomy 17:9). But can it enter your mind that a person can go to a judge that is not alive in his days? What, then, is the meaning of the phrase “in those days”? It teaches that you need to go only to the judge in one’s days, i.e., he is authorized to judge and decide matters. And it also says: “Do not say: How was it that the former days were better than these? For it is not out of wisdom that you inquire concerning this” (Ecclesiastes 7:10). Instead, one must accept the rulings of the leaders of his generation.
Making decisions about the application of law can only be made by an individual who is a Torah scholar. This begs the question, who is a Torah scholar?
אָמַר רַב יוֹסֵף: צוּרְבָּא מֵרַבָּנַן עָבֵיד דִּינָא לְנַפְשֵׁיהּ בְּמִילְּתָא דִּפְסִיקָא לֵיהּ.
Rav Yosef said: A Torah scholar may execute judgment for himself with regard to a matter about which he is certain, and he is not required to first go to court and have the case decided for him. The same applies when another person behaves in a disrespectful manner toward him; he is permitted to go ahead on his own and ostracize him.