Rabbi Richard S. Rheins

in accordance with the needs of the hour! There it is different, for it is written, Unto him shall you hearken—Then let[rabbinic law] be deduced from it! The safeguarding of a cause is different.

“Unto him you shall hearken” refers to the power of the prophets to legislate. Rabbi Chisda maintained that, like the prophets, rabbinic courts could legislate even to the extent of permitting an act that the Torah prohibits. Rabbah disputes Hisda on this point. Yevamot 90b explored the difference between the extraordinary acts of Elijah and the acts of rabbis to amend or even abrogate laws of Torah in order to establish a seyag letorah.

Elijah violated the Torah ’s ban against sacrificing in a place other than Jerusalem when he made his great sacrificial con­frontation with the priests of Baal on Mount Carmel(I Kings 18:31ff). Rabbah maintained that there was a substantial differ­ence between Elijah ’s heroic act and the rabbinic right to legis­late. Elijah ’s was a desperate act to save the day and not an attempt to establish a precedent.

The Tosafists asked,“How can a prophet, like Elijah , who delivers a divine message, be analogous to a halakhic authority whose enactment is not of divine origin?” Nachmanides and others understood that when a prophet abrogated Torah , he did so not by divine command but on his own authority. Likewise, the rabbis legislate on their own authority and not with the pre­tension of divine command.

Though the dispute of Yevamot 90b was decided in favor of Rabbah, the Talmud established three important exceptions, which, in effect, granted the rabbis sweeping power in accor dance with Chisda’s position. The three exceptions are:

Hefker bet din hefker®(what the rabbinic court nullifies is nulli­fied). In a property dispute, the rabbis have the right to declare an individual's property forfeited. This principle became a doctrine that permitted legislation to both nullify existing legal rights (granted by the Torah ) and to create new rights(not conferred by the Torah ). This was the principle upon which Hillel based his famous takkanah known as the prosbul that gave creditors the right to collect debts even after the end of a sabbatical year.*!

Le-migdar milta(to safeguard the matter). The Rabbis have the authority to issue takkanot, protective measures even in criminal and capital cases, during times of dire necessity.